Review: Neglected Heads Of Damages – Domestic Care And Assistance
Published 26 Feb 2018
Matter of Ozbayrak V Tekeli (2017) was a NSW District Court motor accident case which was heard by Justice Dicker in September of 2017.
At Gerard Malouf and Partners we know the importance of reviewing court decisions. We regularly review decisions so we are better able to prepare our client’s cases by putting into practice useful tricks used by other solicitors, or learning from the mistakes which they have made.
The solicitors in this case have successfully argued a case by building up evidence in an often neglected head of damage being that of domestic care and assistance.
The Plaintiff was a grandmother who was a passenger of a motor vehicle which was involved in an accident. Due to the negligence of the driver, the vehicle lost control and collided with a tree. As a result, the Plaintiff sustained quite significant injuries and was hospitalised for a significant period of time.
The Plaintiff at the time was retired and in receipt of Centrelink benefits and she was not entitled to damages for her pain and suffering.
The Plaintiff’s claim was therefore limited to two heads of damages being her out of pocket expenses (past and future), as well as her domestic care and assistance (past and future). Despite being a smaller claim the insurance company strongly contested the amount of damages which the Plaintiff was entitled to.
The Plaintiff provided evidence that prior to the accident she was able to look after the house by herself doing all the chores including cleaning, scrubbing the bathrooms, preparing meals, vacuuming, washing and hanging out clothes on the clothes line. The Plaintiff also had a vegetable and a rose garden which she religiously looked after every day.
The Plaintiff came from a very big and social family and the Plaintiff’s grandchildren often stayed over with her to which she would cook, clean and generally dote on them
The Plaintiff lead evidence that since the accident things had substantially altered. Her rose gardens had died as she is no longer to look after them anymore and she was also unable to work in the vege patch with her son having to primarily do all the work which was required.
The Plaintiff was no longer able to undertake the domestic activities including laundries, scrubbing the bathrooms, vacuuming, changing seats, and cooking which was required to look after her children.
The Plaintiff lead evidence that prior to the accident she was without pain and was able to engage in all the domestic chores.
The Plaintiff’s star witness was her 13 year old granddaughter who gave evidence that prior to the accident she didn’t notice the Plaintiff having any restrictions or problems with her back. She gave evidence that when she came to visit her grandmother, her grandmother was able to do all the in house domestic chores and regularly saw her grandmother completing these chores.
Importantly, the granddaughter lead evidence that since her mother’s accident and her getting older (2 years) she has spent significantly more time with her friends doing shopping and sleepovers. She estimated that as she gets older she would enjoy following this pursuit more and would be less inclined to look after her grandmother.
The defendant on the other hand submitted that the Plaintiff did not receive the statutory 6 hours for 6 months threshold and therefore was not entitled to any claim for past domestic care and assistance.
The Judge made the following findings of fact:-
- The Plaintiff undertook all domestic chores including self-care, cooking and cleaning prior to the accident. This was not without restriction as medical records show that the Plaintiff indicated she was having difficulties prior to the accident with her ability around the home. The judge found that the client probably received help on occasion from her family members and did not have complete capacity to look after her home.
- After the accident, the Plaintiff received domestic care and assistance from her family members, especially her 13 year old granddaughter.
- The Plaintiff now pays for her lawn to be mown every fortnight and she pays money from her disability pension. Her son completes the other heavy gardening duties.
- The Plaintiff’s granddaughter will assist with the Plaintiff’s substantially less ass he grows older as she wants to spend more time with her friends and will be drawn to her studies.
- The Plaintiff will therefore need some form of paid commercial care and assistance into the future.
The Plaintiff’s solicitors obtained an Occupational Therapist report to substantiate the claims of domestic care and assistance which the client had made.
In relation to the claim for future domestic care, his honour found that it was likely that the Plaintiff’s son would continue to do the gardening duties and therefore made no award for money towards a gardener in this respect. However, he did find that the client’s granddaughter was likely to grow up and move on with her life. It is therefore the Plaintiff is unable to continue to rely upon the gratuitous care which she had previously relied upon. His honour allowed 2.5 hours per week at the commercial rate of $30.00 per hour is claimed by the Plaintiff.
He did defer this for 2 years stating that the granddaughter was likely to provide the carer for this period of time and that the care was likely to go on for 20 years after that. Ultimately future care was awarded for $45,331.00.
This matter resolved with judgement of favour for the Plaintiff an award of $94,380.95 in compensation and the defendants to pay the Plaintiff’s costs in relation to the running of the claim.