Miller v Galderisi [2009] NSWCA 353
Judgment: 10 November 2009
This is an interesting judgment regarding care and assistance. The ramifications of this judgment are limited in scope, but of a very practical nature.
This case is relevant to circumstances where a plaintiff who receives gratuitous care of a quantity below the section 128 threshold claims future commercial care in place of that gratuitous care.
The facts
Delaney DCJ found that the plaintiff received 4 hours per week past gratuitous domestic assistance as a consequence of disabilities sustained in a motor vehicle accident. He found that this need would continue into the foreseeable future. This allowance fell below the section 128 threshold.
His Honour found that there was a chance that the providers of the gratuitous assistance – the plaintiff’s wife and adult son – might not be able to provide care at some future time. To allow for a potential cessation of gratuitous assistance his Honour awarded 4 hours per week future commercial domestic assistance. By awarding the future need on a commercial basis his Honour rendered the section128 threshold irrelevant.
The defendant appealedthis finding, asserting that there was no evidence thatgratuitous care would cease. The Court of Appeal allowed the appeal and set aside the award for future commercial domestic assistance.
The court's decision
The Court of Appeal rejectedhis Honour’s finding that future commercial assistance was warranted. Their Honours Allsop P, Basten JA and Macfarlan JA observed that the possibility that commercial assistance would be required in future was "not entirely fanciful, but the chance of it occurring is slight" (paragraph 23). The judges decided "there was no reason to suppose that (the plaintiff's wife) would not continue to be able and willing to assist him for many years to come" (paragraph 21).
To justify an award for commercial assistancea court must identify evidence that gratuitous assistance is likely to end: "there is no conventional allowance for the provision of domestic assistance on a commercial basis at some future point in time, against the possibility that the gratuitous carer may no longer be able or willing to provide such care... It is not appropriate in this case to simply pluck a figure out of the air because there is a remote, though not entirely fanciful, chance of the need for commercial domestic assistance in the future" (paragraph 24).
This judgment is authority for a proposition that in order to obtain future commercial assistance in circumstances where in the past only gratuitous assistance has been provided,a plaintiff must present evidence that the gratuitous assistance will cease. In the absence of such evidence the court must assume that gratuitous care will continue. If that care remains below the quantitative threshold no damages for future assistance arise.
Impact
This case is relevant where a plaintiff who receives gratuitous care of a quantity below the section 128 threshold seeks future commercial care in place of that gratuitous care. The plaintiff must present evidence capable of showing that the gratuitous care will cease. Each case will turn on its own particular facts. A consequence of the finding is that a defendant must be entitled to request particulars sufficient to assess the sustainability of a gratuitous care regime.
We can anticipate that claimants'solicitors will ensure that they have evidence as to why gratuitous care will cease to be available aftersettlement of a claim. In circumstances where such evidence is not brought we are entitled to ask a CARS Assessor or court to assume that the gratuitous care will continue.
Matthew Seisun, Senior Associate, Sydney
