The challenge to the award of damages for past domestic assistance
26Section 15(3) of the CLA is in the following terms:
"Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided):
(a) for at least 6 hours per week, and
(b) for a period of at least 6 consecutive months."
27The submission of the appellant was that in the weight of dicta in this Court the statutory threshold is only met if the gratuitous services have been provided for at least six hours per week during an unbroken period of six months: Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406 at [163]; Hill v Forrester [2010] NSWCA 170 at [8]-[9] and [29]-[37], though see [95] and [105]-[108]. To the extent that s 15(3) may be ambiguous, recourse may be had to extrinsic material under the Interpretation Act 1987 (NSW), s 34(1)(b). The mischief or purpose in the amendments bringing s 15(3) into its current form were to bring the operation of the provision back to the position before Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380. No argument to the contrary was put. In these circumstances it is appropriate to proceed on the basis of the appellant's construction.
28The accident was in October 2008. The hearing was in September 2011.
29The primary judge dealt with the matter at [22]-[23] of her reasons, as follows:
"[22] Past gratuitous care was a contentious issue in the proceedings. There was uncontradicted evidence from the plaintiff's wife, which I found quite compelling. In effect, prior to the accident, the couple shared domestic duties, i.e. both internal domestic duties and yard and maintenance duties, on a fifty/fifty basis. Now she performs almost 100%, and he does almost nothing. She also gave evidence that, over the period, she has done about two hours extra work per day of a varied nature. She conceded that the two hours of extra work a day may have taken her considerably longer than someone younger and fitter. She may have been slower, but that is not to the point. I accept that evidence. It is very consistent with the evidence of the plaintiff's occupational therapist. I have a feeling the housework is a counsel of perfection for her, but taking into account the limitations occasioned by her own health problems, two hours a day is quite reasonable. I am more than satisfied that the threshold for an award for gratuitous care under the Civil Liability Act 2002 of at least six hours per week for a period of at least six months is satisfied.
[23] Ms Alach, the plaintiff's occupational therapist, has done a number of fairly complex assessments of how many hours were required at certain periods of time. Obviously, more hours would have been required in the first three months after the accident. The plaintiff said that he spent a good deal of that period in bed and effectively unable to do anything. There would also have been an increased requirement for work by the plaintiff's wife in the period after the knee surgery, i.e. from mid August 2010, and after the shoulder surgery, i.e. from 16 December 2010, when the plaintiff was discharged with his right arm in a sling. Taking into account those factors, the period of two hours a day or fourteen hours a week referred to by Mrs Rodgers appears quite modest. Based on Ms Alach's assessment and deducting the amounts that Ms Alach has allowed for emotional support (which the plaintiff agrees are not permissible), the plaintiff has put a claim of $42,000 for past gratuitous care. The calculation, based on fourteen hours a week at the statutory rate, would result in an amount of more than $52,000. In relation to past gratuitous care I allow the sum of $42,000."
30The appellant's complaint about this approach was that her Honour was in error in accepting the figure of at least two hours per day. In particular the appellant criticises the conclusion that the estimate of two hours per day was consistent with the evidence of the occupational therapist called by the respondent (plaintiff), Ms Alach, and of the plaintiff himself.
31It is necessary to examine the evidence in some detail.
32Mrs Rodgers gave direct evidence on these matters. Her evidence was accepted by the primary judge. No suggestion (at trial or on appeal) was made that her evidence was deliberately exaggerated. It was submitted on appeal that when regard is had to the totality of the other evidence, her estimate of two hours per day should be viewed as unreliable.
33In chief, Mrs Rodgers was asked at some length about what the plaintiff did around the house, both inside and outside. He would take the washing out and assist with hanging it up; sometimes he did the washing; he would get the vacuum cleaner out; the cooking was done "50/50", including preparation, cooking and cleaning up (estimated at 20 minutes per day); he used to help every day with "making beds and things like that"; he would help with cleaning things, such as the curtains; he used to do the dusting; they shared the cleaning of the bathroom and shower, including scrubbing tiles on the floor; he looked after the chooks outside; they shared "50/50" the maintenance on the chicken coop; he attended to a vegetable patch; he also did gardening and maintenance.
34After the accident, some of the tasks that the plaintiff had done were left unattended: gardening and home maintenance, and the vegetable patch, although Mrs Rodgers did attempt some work on the vegetable patch.
35Mrs Rodgers was then asked what her husband did after the accident. She said he did none of what he had done beforehand. Some things were not done: anything involving reaching overhead, the gardening and maintenance. She gave the following evidence:
"Q. What sort of things were you doing to help him after the accident in a way that you weren't doing for him before the accident?
A. Well I was bringing the wood in, looking after the chooks, looking after the rabbits when - and then, it just got too much for me and I got rid of the lot.
Q. Well that wasn't until recently - more recently. I'm focusing on - I should have made it clear, it's my fault. I'm focusing on the period from his accident to when he had the knee surgery?
A. Yep.
Q. Through that period, you were doing those outside things you just described?
A. Yes.
Q. Were there additional things you were doing inside that he was doing before that he wasn't then able to do?
A. Well I was trying to but - do things that he used to do for me, and I just couldn't.
Q. You said it was 50/50 on a lot of things?
A. Yep.
Q. Did that 50/50 arrangement change?
A. Yes.
Q. What? Did it become 60/40, 70/30, 100/0 - what -
A. Well it was virtually zero.
Q. Zero/100 your way?
A. Yep.
Q. I know it's always difficult to work these things out, but doing the best you can, if you were to take on a day-by-day, week-by-week basis, about how many extra hours were you doing things for Terry because he couldn't do them himself as a result of how he was after the accident?
A. Can you repeat it?
Q. You know how you told us that you were doing extra work around the house and outside the house for him -
A. Yep.
Q. - because he couldn't do it after his accident -
A. Yep.
Q. - how long would it take you each day extra [compared] to how it was before?
A. Ages, I just -
Q. I know it's hard, but in terms of an hour or hours -
A. Hours.
Q. - would you say two hours a day or more?
A. About two hours.
Q. Did it vary day by day?
A. Yes.
Q. Could it be a little bit less some days, little bit more others?
A. Yes.
Q. Obviously I take it because of problems you had, you were a little slower doing some of these things than might somebody who didn't have the problems you had, is that right?
A. Yes.
Q. Did you want to do all those things, or did you do them for some other reason?
A. I did them because I realised he couldn't do them for me.
Q. Would you have, if you had the financial resources, preferred to have someone else do those things for you?
A. Yes I would."
36In cross-examination, Mrs Rodgers confirmed that cooking was 20 minutes per day, with his help (especially in preparation) about 10 minutes per day. The curtain cleaning was accepted to be spring cleaning. Dusting was once a week. She could not give an estimate of how long the dusting took. She could not recall how long the bathroom took to clean.
37The cross-examination did not elicit sufficient material to undermine her general conclusion of two hours per day, sometimes more, sometimes less.
38The appellant's attack focused on three periods:
(a) 11 January 2009 to 16 August 2009, being a period after an initial period of 13 weeks following the accident;
(b) 29 September 2010 to 16 December 2010, being a period after a period of convalescence following knee surgery;
(c) 5 January 2011 to 26 September 2011, being a period after another period of convalescence.
39These periods are taken from Ms Alach's report. She was the plaintiff's occupational therapist. Ms Alach's report was prepared after consultation with both the plaintiff and Mrs Rodgers. Ms Alach stated in [7.3.1] of her report:
"Past gratuitous care requirements are based on Mr Rodgers' and his wife's reports of assistance provided to him at various periods since the accident. It is up to the Court to decide whether that amount of assistance was reasonable and necessary given his circumstances."
40In a period identified as 11 January 2009 to 16 February 2010, Ms Alach identified:
(a) personal care: 2 hours/week;
(b) domestic assistance: 2.75 hours/week;
(c) gardening (mowing the lawn and additional gardening tasks): 2 hours/week;
(d) home maintenance (assistance to feed the chickens, stack wood and other miscellaneous tasks): 2 hours/week; and
(e) emotional support: 4 hours/week,
totalling 12.75 hours/week.
41Emotional support was not pressed.
42It was submitted that gardening was ignored and maintenance was not done and both could be eliminated. The evidence is not so categoric. The plaintiff said in cross-examination:
"Q. Do you remember, you wouldn't have been doing any gardening when you were in that state would you?
A. No, no way, nothing.
Q. Did your wife do the gardening?
A. No she tries.
Q. Did she do - do you remember her doing it - I mean she was taking care of you at that stage, was she doing the gardening as well?
A. She was trying to but she won't pick her mess up.
Q. So it got-
A. I'll sack her.
Q. So it got a bit out of control did it?
A. Sorry?
Q. Got a bit out of control did it, the garden?
A. Yeah, yeah.
Q. And I don't suppose you would have been doing any handy man jobs in that period?
A. No.
Q. And your wife, she's not handy is she?
A. Not at all.
...
Q. Again just to be clear, this is the period in the first half of 2009, were you mowing the lawn then?
A. 2009?
Q. First half?
A. Partly, some mowing, yes.
Q. You were doing some mowing?
A. Yeah tried to.
Q. But not as often as you'd like or?
A. Yeah.
Q. And were you doing a bit of gardening?
A. Little bit.
Q. But was the gardening - was the garden a bit unkempt, bit out of control then?
A. Yes it was.
Q. You weren't able to keep on top of it, did your wife help?
A. Not really, she's pretty busy in the house."
43Mrs Rodgers said in examination:
"Q. What did you see about him trying to cut the wood?
A. Well he was in pain.
Q. Well you could see that?
A. Yes.
Q. Did he stop or did he continue?
A. No, he stopped.
Q. Had you ever seen him do that before?
A. No.
Q. Did you then make a decision about cutting wood?
A. Yes.
Q. You got someone to do it for you?
A. Yes.
Q. What, if anything, did you see about him pruning the trees that you've told us he used to do after the accident?
A. They were left.
Q. What about the vegetable garden and I'm talking about in the period between the accident and up until when he had his knee surgery, what did you notice about the vegetable garden during that period?
A. Overgrown with weeds.
Q. Did he do any work in it at all?
A. No.
Q. Did you get any vegetables out yourself?
A. I tried.
Q. When you say you tried, were you successful or not?
A. No.
Q. Why not?
A. Well, I just couldn't manage it.
Q. Did you try to do any pruning to the trees or did you decide that wasn't something you could do?
A. I just said I couldn't do it and I left it.
Q. What about the lawn that you've told us about?
A. I got somebody I to do --
Q. The garden, what happened to that?
A. They were just left."
44This evidence makes it difficult to reconcile the not entirely commensurate categories of activity undertaken by Mrs Rodgers and variously referred to in her oral evidence and in the reports of the expert, based in part on what she and her husband said.
45The expert's report of Ms Hammond tendered by the appellant had a number of comments about the assessments by Ms Alach. For instance, she said about the domestic assistance, gardening and home maintenance (after agreeing about personal care):
"[Domestic assistance -] Disagree
Mrs Rodgers has always had prime responsibility for internal domestic tasks. Mr Rodgers' injury did not impact on her performance of her domestic responsibilities.
[Gardening -] Disagree
Gardening was largely ignored. The couple paid for a lawn mowing service on occasion and should be reimbursed for the cost of the same.
[Home Maintenance -] Disagree
The couple paid for wood delivery and should be reimbursed for the same. No other allowance for home maintenance is recommended."
The conclusions were not drawn from speaking with the plaintiff or Mrs Rodgers.
46For the period 29 September 2010 to 16 December 2010, Ms Alach identified:
(a) personal care: 2 hours/week
(b) domestic assistance: 2.75 hours/week
(c) gardening 2 hours/week
47The same evidence of the plaintiff, Mrs Rodgers and Mr Hammond qualified this.
48The surrounding evidence is insufficient in my view to destroy as valueless the evidence given by Mrs Rodgers of about 2 hours per day. It can be accepted that it was an estimate. The statute requires 6 hours per week. That is a little under 1 hour per day. The judge allowed $42,000 being equivalent to under two hours per day but more than 1 hour per day.
49Fairness in the conduct of the trial required that the evidence of Mrs Rodgers be confronted with the detail said to require a conclusion of no more than 4.75 hours. The balance of the evidence did not, without more, require the rejection of Mrs Rodgers' estimate and its replacement by 4.75 hours per week based on Ms Alach's report.
50The appeal in this regard is not made out.
51Thus, I would dismiss the appeal with costs.
52CAMPBELL JA: I agree with Allsop P.
53BARRETT JA: I agree with Allsop P.
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Decision last updated: 23 August 2012