95 In relation to the first question, the fact that such services were being provided, whether on a gratuitous or paid basis, prior to the accident, is beside the point. If the injured person requires assistance in carrying out the garbage and doing similar "heavy work" around the home, it does not matter whether she did that before the injury, whether if she did not it was done by a paid housekeeper, or was undertaken by her husband or other partner. This conclusion is to be derived from the joint judgment of Mason CJ, Toohey and McHugh JJ in Van Gervan v Fenton (1992) HCA 54, (1992) 175 CLR 327 at 338. … "
141 Because the claim is for paid care, s15(2)(c) CLA has no application.
142 At the time she was injured the plaintiff was paying $30 per hour to her cleaner. Accordingly, her entitlement to damages for that past paid assistance is ($180 per week for 202 weeks) - $36,360.
143 The plaintiff has a future life expectancy of approximately 24 years. Applying the 5 percent tables to the claim for future paid assistance of $180 per week, produces a figure of $132,800.
144 It was agreed between the parties that the plaintiff's claim for taxis was $950 for the past. I accept that it was reasonable for the plaintiff to use taxis on occasions when her husband was unable to drive her and that in the circumstances, a figure of $950 is also reasonable. This is so despite the absence of receipts. I propose to allow that amount. The plaintiff did not make any claim for taxis for the future.
145 It was agreed between the parties that the plaintiff's out-of-pocket expenses for the past, including medical expenses and the use of an ironing service amounted to $39,419.57. This figure is allowed.
146 The plaintiff made a claim for alterations to clothing necessitated by the accident in the amount of $4,670.00. Since those alterations would have reduced the amount of gratuitous assistance needed by the plaintiff, both for the past and future, that claim is reasonable and I allow it.
147 The plaintiff claimed an amount of $3,050 for property damage. The background was that the plaintiff apparently damaged a diamond ring in the fall. This claim is for the cost of repairs and also the reduction in value of the ring which she alleges resulted from the damage. There was no oral evidence led to support this claim. Exhibit F was tendered. It comprised a receipt for $800 dealing with repairs to a diamond ring and two valuations of a diamond ring, one dated 17 June 2003 for $19,000 and the other dated 18 September 2008 for $16,750. The Court was invited to draw the inference that as a result of the damage done to the ring, its value had reduced by approximately $2,250.
148 In the absence of any expert evidence to that effect, I am not prepared to draw that inference. While it is likely that the valuations refer to the same ring, there are a number of other explanations for why the later valuation might be less. I propose to allow the cost of the repair to the ring and nothing else, i.e. $800.00.
149 The plaintiff made a claim, pursuant to s15B CLA for her inability to visit her mother-in-law between the date of the accident and October 2007 when she resumed driving. Before the plaintiff's accident a carer was employed for two hours per week to visit the plaintiff's mother-in-law. In addition the plaintiff would visit her mother-in-law twice a week for one or two hours at a time. Following the plaintiff's accident, a second carer was employed so that the plaintiff's mother-in-law was still visited three times per week. The plaintiff claimed $4,950 to cover the cost of the two additional paid visits to her mother-in-law per week.
150 Section 15B(2) CLA sets out the preconditions which have to be satisfied before damages can be awarded under the section. It provides:
"15B(2) Damages may be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, but only if the court is satisfied that:
(a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of "dependants" in subsection (1) - the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and
(b) the claimant's dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and
(c) there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant's dependants:
(i) for at least 6 hours per week, and
(ii) for a period of at least 6 consecutive months, and
(d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances."
151 While preconditions 15B(2)(a) and (b) have been satisfied, preconditions 15B(2)(c) and (d) have not. I am not satisfied that there is a reasonable expectation that, but for the injury, the claimant would have provided services to her mother-in-law for at least six hours per week. Her evidence was that before she was injured, she was providing those services twice a week for between one and two hours at a time. Accordingly, the requirements of s15B(2) have not been made out.
152 As the High Court pointed out in CSR v Eddy [2005] HCA 64, (2005) 226 CLR 1 there is no common law entitlement to damages of this kind. Accordingly, unless the plaintiff comes within s15B CLA, she has no entitlement to those damages. She has failed to bring herself within s15B and that part of her claim fails.
153 The plaintiff claimed $25 per week for the next 24 years to take account of the costs of sending out heavy items to be ironed. There was no challenge to the cost of $25 per week and this was corroborated by the receipts in exhibit H. I have already accepted the reasonableness of the plaintiff's claim for the cost of sending heavy items out to be ironed. I propose to allow the plaintiff's claim for future paid ironing services at the rate of $25 per week for the next 24 years, i.e. $18,450.
154 The plaintiff made a general claim for future out-of-pocket expenses. It was clear that the plaintiff was not currently incurring any medical expenses in relation to her injuries and had not done so since early 2008. However, the Court was asked to take into account the possibility identified by professor Sonnabend, that the plaintiff might develop arthritis in the future which would involve the incurring of significant expense. The Court was asked to award a cushion to have regard to that possibility.
155 Professor Sonnabend was not able to quantify the chance that arthritis may develop. He made it clear that if arthritis did develop, it could involve significant medical expense. That evidence was not challenged. Accordingly, I have to give a value to the chance that arthritis might develop in the future and involve the incurring of further substantial medical expenses by the plaintiff. I propose to allow a figure of $10,000 for future out-of-pocket expenses.
156 There are two other items in the plaintiff's claim in relation to which the evidence was rather unsatisfactory. The first is the claim for additional assistance when preparing special meals as a result of the position of the plaintiff's husband in the Cremorne Synagogue. There was no evidence as to how long he was likely to occupy this position but there was evidence of additional paid assistance being required as a result of the plaintiff's accident at the rate of six hours per meal, six times a year. No figures were put forward for the past or future. On the assumption that there would be a need to provide such meals for the next 10 years, I propose to allow damages of $10,000.00. That amount includes any claim for the past. It also has regard to the likelihood that with advancing age the plaintiff would require help of this kind in any event.
157 The other item of damage which was raised with the Court, somewhat belatedly after submissions had been completed, was the plaintiff's claim for the additional cost of having to attend a hairdresser because of her inability to properly style her hair on occasions when she had to attend a social gathering. I have already found that the plaintiff is entitled to damages for that claim. The difficulty is that no evidence was placed before the Court as to the nature of the additional hairdressing required or its cost. Doing the best I can, I propose to make an allowance in favour of the plaintiff of $7,500. That figure includes any claim for the past.