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.