15BDamages for loss of capacity to provide domestic services

#### 15B Damages for loss of capacity to provide domestic services 15B Damages for loss of capacity to provide domestic services > > (1) Definitions In this section— > > > > assisted care, in relation to a dependant of a claimant, means any of the following kinds of care (whether or not the care is provided gratuitously)— > > > > > (a) any respite care (being care that includes accommodation that is provided by a person other than the claimant to a dependant who is aged or frail, or who suffers from a physical or mental disability, with the primary purpose of giving the dependant or claimant, or both, a break from their usual care arrangements), > > > > > (b) if the dependant is a minor (but without limiting paragraph (a))—any care that is provided to the dependant by a person other than the claimant where— > > > > > > > (i) the person is a parent of the dependant (whether derived through paragraph (a)(i) or (ii) of the definition of dependants in this subsection, adoption or otherwise), and > > > > > > > (ii) the care includes the provision of accommodation to the dependant. > > > > dependants, in relation to a claimant, means— > > > > > (a) such of the following persons as are wholly or partly dependent on the claimant at the time that the liability in respect of which the claim is made arises— > > > > > > > (i) the person to whom the claimant is legally married (including a husband or wife of the claimant), > > > > > > > (ii) a de facto partner of the claimant, > > > > > > > > Note. > > > > > > > > “De facto partner” is defined in section 21C of the [Interpretation Act 1987](/view/html/inforce/current/act-1987-015). > > > > > > > (iii) a child, grandchild, sibling, uncle, aunt, niece, nephew, parent or grandparent of the claimant (whether derived through subparagraph (i) or (ii), adoption or otherwise), > > > > > > > (iv) any other person who is a member of the claimant’s household, and > > > > > (b) any unborn child of the claimant (whether derived through paragraph (a)(i) or (ii), adoption or otherwise) at the time that the liability in respect of which the claim is made arises and who is born after that time. > > > > gratuitous domestic services means services of a domestic nature for which the person providing the service has not been paid or is not liable to be paid. > > > (2) When damages may be awarded 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. > > > > Note. > > > > Section 18 provides that a court cannot order the payment of interest on damages awarded for any loss of capacity of a claimant to provide gratuitous domestic services to the claimant’s dependants. > > > (3) If a dependant of the claimant received (or will receive) assisted care during the 6-month period referred to in subsection (2)(c)(ii) and the court is satisfied that the periods of that care were (or will be) short-term and occasional, the court may— > > > > > (a) in determining whether the claimant would have provided gratuitous domestic services to the dependant during a particular week for at least the 6 hours referred to in subsection (2)(c)(i), disregard the week if assisted care was (or will be) provided during that week, and > > > > > (b) in determining whether the claimant would have provided gratuitous domestic services to the dependant during the 6-month period referred to in subsection (2)(c)(ii), disregard any periods during which the assisted care was (or will be) provided in that 6-month period, > > > > but only if the total number of weeks in which the care was (or will be) provided during the 6-month period does not exceed 4 weeks in total. > > > (4) Determination of amount of damages The amount of damages that may be awarded for any loss of the claimant’s capacity to provide gratuitous domestic services must not exceed the amount calculated at the same hourly rate as that provided by section 15(5) regardless of the number of hours involved. > > > (5) In determining the amount of damages (if any) to be awarded to a claimant for any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants, a court— > > > > > (a) may only award damages for that loss in accordance with the provisions of this section, and > > > > > (b) must not include in any damages awarded to the claimant for non-economic loss a component that compensates the claimant for the loss of that capacity. > > > (6) Circumstances when damages may not be awarded The claimant (or the legal personal representative of a deceased claimant) may not be awarded damages for any loss of the claimant’s capacity to provide gratuitous domestic services to any dependant of the claimant if the dependant has previously recovered damages in respect of that loss of capacity. > > > (7) A person (including a dependant of a claimant) may not be awarded damages for a loss sustained by the person by reason of the claimant’s loss of capacity to provide gratuitous domestic services if the claimant (or the legal personal representative of a deceased claimant) has previously recovered damages in respect of that loss of capacity. > > > (8) If a claimant is a participant in the Scheme under the [Motor Accidents (Lifetime Care and Support) Act 2006](/view/html/inforce/current/act-2006-016), damages may not be awarded to the claimant under this section in respect of any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants while the claimant is a participant in the Scheme if (and to the extent that)— > > > > > (a) the loss resulted from the motor accident injury (within the meaning of that Act) in respect of which the claimant is a participant in that Scheme, and > > > > > (b) the treatment and care needs (within the meaning of that Act) of the claimant that are provided for or are to be provided under the Scheme include the provision of such domestic services to the claimant’s dependants. > > > (9) Damages may not be awarded to a claimant under this section in respect of any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants if (and to the extent that)— > > > > > (a) the loss resulted from an injury caused by a motor accident (within the meaning of the [Motor Accidents Compensation Act 1999](/view/html/inforce/current/act-1999-041)), and > > > > > (b) an insurer has made, or is liable to make, payments to or on behalf of the claimant for such services under section 83 (Duty of insurer to make hospital, medical and other payments) of that Act. > > > (10) Damages may not be awarded if they can be recovered as damages for attendant care services Damages may not be awarded to a claimant under this section in respect of any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants if (and to the extent that)— > > > > > (a) the claimant could recover damages for gratuitous attendant care services (within the meaning of section 15) in respect of the same injury that caused the loss, and > > > > > (b) the provision of such attendant care services to the claimant also resulted (or would also result) in the claimant’s dependants being provided with the domestic services that the claimant has lost the capacity to provide. > > > (11) Determining value of gratuitous domestic services In determining the value of any gratuitous domestic services that a claimant has lost the capacity to provide, the court must take into account— > > > > > (a) the extent of the claimant’s capacity to provide the services before the claimant sustained the injury that is the subject of the claim, and > > > > > (b) the extent to which provision of the services would, but for the injury sustained by the claimant, have also benefited persons in respect of whom damages could not be awarded under subsection (2), and > > > > > (c) the vicissitudes or contingencies of life for which allowance is ordinarily made in the assessment of damages. > > **s 15B:** Ins 2006 No 55, Sch 1 \[11\]. Am 2010 No 19, Sch 3.18 \[1\] \[2\]; 2018 No 28, Sch 1.8 \[1\].