Damages for Home Services

Posted on March 16, 2011 by Julian Johnson

 I came across an interesting point today, while working on a tragic case arising from the death of a relatively young women, who's son suffers from (and prior to her death suffered from) a serious mental illness.

Following the women's death (which we allege was caused by negligent medical care), claim is made on behalf of the son for loss of the financial + non-financial support + services his mother would have provided, had she not died.  

These services range from assistance with medication through to transportation and reminders to change clothing etc.  They are now provided in part by his father.  In part he now does not receive such services.

in claims in Western Australia (and most States) compensation for provision of services provided free of charge (gratuitous) is limited by reason of the Civil Liability Act (section 12).  The interesting point is that such section does not appear to apply to compensation of the type sought in this claim.  

The claim is not for damages for services needed and provided because of an 'injury' my client has suffered.  Rather, this claim is for loss of services that would have been provided to him, had his mother survived.  The need for these services does not arise from her death.  It predates this.

Anyway, just a tip to anyone handling these Fatal Accidents claims, of this 'wrinkle' in the assessment of damages in such inevitably tragic claims.

Tags: , , , ,

death of a grandmother - claim by grand-daughter for lost services

Posted on September 22, 2009 by Julian Johnson

 Although not a medical negligence claim, the recent decision by Judge O'Brien in Jenkin -v- Brook [2009] WADC 140, delivered on 9 September 2009, provides interesting reading as a recent factual example and summary of the assessment of damages in a claim where negligence causes death.

In this case Judge O'Brien accepted the plaintiff, who was the grand-daughter of a women killed in a motor vehicle accident, was entitled to make claim for the 'value' of lost services her grandmother would have provided to her.

Importantly, as Judge O'Brien (with respect) correctly identified, the claim could be made, regardless of whether there was a "need" for the services that would have been provided by the grandmother.

Sadly, the claimant suffered from severe global developmental delay.  She also has physical impairments.  She had a special bond with her grandmother, who provided extensive support and as Judge O'Brien found, would have continued to do so, had she not died.

Judge O'Brien recognising that the valuation of such services was not necessarily to be limited to their commercial value (given such services 'value' was not simply its replacement cost by a professional carer etc).  However because no other rate was put forward by the parties, Judge O'Brien accepted such commercial rate should be used in this particular instance ($35/hour).

Total damages were awarded in the sum of $340,000.00.

Even though not a medical negligence case, the principles of assessing potential quantum in the event a family member dies, who providing services but not financial support, illustrated by this case are equally applicable in medical negligence cases.  As the case demonstrates, the commonly held view that if wages were not earnt and contributed by a deceased, no claim of substance can be brought, is wrong.  

Tags: , , , ,