Published by Michael Cooper on June 17, 2021
Principles
When calculating damages in accordance with the Civil Liability Act 2002 (NSW) (the Act), the Court will have regard to the plaintiff's pre-accident medical records and underlying conditions.
The Court will have regard to the plaintiff's prior family arrangements providing gratuitous assistance – this may preclude any claim for future domestic assistance.
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The plaintiff has not ever been in paid employment and there was no claim for economic loss, so consideration of s 13 of the Act was not required. Accordingly, his Honour Judge Levy assessed the plaintiff's damages as follows:
Non-economic loss
The plaintiff claimed that her damages for non-economic loss should be assessed at 26% of the most extreme case in accordance with s 16 of the Act.
His Honour's judgment was based on the report produced by Dr Andrew Porteous, an occupational physician, who set out a detailed report of the plaintiff's post-accident injuries and condition prior to the 2019 fall. In consideration of this report, the plaintiff's damages for non-economic loss was assessed at 20% of a most extreme case – equivalent to $24,000.
Future treatment expenses
The plaintiff claimed future out-of-pocket and treatment expenses at $21,507.65, based on Dr Porteous' treatment recommendations. Treatments included steroid injections, physiotherapy, pain relief, mechanical aids, an MRI of the right hand and reviews by orthopaedic surgeons and hand specialists.
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In consideration of the plaintiff's pre-accident disability, a discounted buffer of $5,000 was awarded for future out-of-pocket and treatment expenses.
Future domestic assistance
The plaintiff claimed damages for future domestic assistance at $76,199.20, being a lump sum for 2 hours assistance per week, at $44 per hour, over 33 years without discount.
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In particular, note was made of the ad hoc gratuitous assistance provided by family members prior to the 2019 fall. No award was made for future domestic assistance as paid domestic assistance was considered improbable.
Past out-of-pocket expenses
Past out of pocket expenses were assessed at $1,750.36.
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