Dust Diseases Tribunal New South Wales Medium Neutral Citation: Perez v State of New South Wales [2013] NSWDDT 1 Hearing dates: 14/12/2012; 20/12/2012; 30-31/01/2013; 01/02/2013; 20/02/2013 Decision date: 26 February 2013 Before: Judge Curtis Decision: Judgment for the plaintiff Catchwords: Dust Diseases Tribunal - Mesothelioma - Past and future care for the plaintiff's dependants - Section 15B of the Civil Liability Act 2002 Legislation Cited: Civil Liability Act 2002 Compensation to Relatives Act 1897 Cases Cited: Donnelly v Joyce (1974) QB 454 Griffiths v Kerkemeyer (1977) 139 CLR 161 Van Gervan v Fenton (1992) 175 CLR 327 Sullivan v Gordon [1999] NSWCA 338 Burnicle v Cutelli [1982] 2 NSWLR 26 Nguyen v Nguyen (1990) CLR 245 Amaca Pty Ltd v Novek [2009] NSWCA 50 Livingston v Rawyards Coal Company (1880) 5 App Cas 25 (HL) Category: Principal judgment Parties: Mario Hernan Perez (Plaintiff) State of New South Wales (Defendant) Representation: Mr D J Russell SC appeared for the plaintiff Mr G P F Rundle appeared for the defendant Maurice Blackburn Lawyers (Plaintiff) I V Knight Crown Solicitor (Defendant) File Number(s): 412/12 Judgment 1In about 1987 the Public Transport Commission of New South Wales removed and replaced the asbestos roof of its Chullora bus depot, failing in the course of that work to protect employees working within the depot from the inhalation of asbestos dust and fibre. 2In consequence of his exposure as an employee during this time Mr Perez has contracted mesothelioma. 3Pursuant to the provisions of the Transport Administration Act 1988 the defendant is heir to the liabilities of the Public Transport Commission of New South Wales. The entitlement of Mr Perez to an award of damages is not in dispute. General Damages 4Mr Perez was born on 12 July 1944 in Chile and is now 78 years old. He is married and has two children and five grandchildren. His symptoms first manifested in May 2012 as pain in his right arm. An MRI scan on 8 July 2012 demonstrated metastatic cancers in his spine. Thereafter he developed large pleural effusions in his lungs and was diagnosed with mesothelioma. 5Although Prof French in a report of 30 January 2013 to the defendant's solicitor, expressed the opinion that the metastases in Mr Perez's neck were unlikely to result from the mesothelioma, in a subsequent report of 4 February 2013 he agreed that it was not possible for him to state categorically that those abnormalities were not due to metastatic mesothelioma. 6Because there is no other primary source I accept the opinion of Prof Breslin that the spinal tumours are the result of the mesothelioma. 7Mr Perez has been treated with radiation, pleural taps, pleurodesis and chemotherapy, but of course the prognosis is hopeless. 8He has suffered considerable pain, with two prolonged periods of hospitalisation, and chemotherapy with the usual attendant side-effects. He is breathless and nauseated. He will die within six months. 9His counsel, Mr Russell SC, has mercifully spared Mr Perez the burden of detailing the profound distress he must be feeling. That distress may be implied from his circumstance. The general nature of the disease, and its inexorable and terrible progress is evidenced by material tendered pursuant to s25B of the Dust Diseases Tribunal Act 1989. 10I reject Mr Russell's formal submission that I may have regard to a Victorian jury verdict of $730,000 given upon similar facts. 11I assess general damages in the sum of $290,000. Interest on General Damages 12I allow interest on $150,000 for nine months at 2 per cent: $2250. Loss of Expectation of Life 13The life expectancy of Mr Perez, uninjured, is agreed at 11.4 years. 14I award a conventional sum of $11,400. Past and Future Out-Of-Pocket Expenses 15These expenses will be borne by the Dust Diseases Board. Past Gratuitous Care Provided to the Plaintiff 16The defendant accepts as reasonable the claim by the plaintiff for 10 hours each week at the rate of $26.36. I award $10,280.40 in respect of 39 weeks. Future Care to be Provided to the Plaintiff 17I do not accept the submission of the defendant that it is probable that the plaintiff will enter a hospice in the last weeks of his life. 18I accept the evidence of Ms Kahren White, the occupational therapist qualified by the plaintiff, as to the necessity and cost of this care increasing over a three-month period and award the sum of $9,971. Past and Future Care for the Plaintiff's Dependants 19The plaintiff's entitlement to these damages is regulated by s15B of the Civil Liability Act 2002. 20Presently relevant portions of this provision are as follows: 15B Damages for loss of capacity to provide domestic services (1) Definitions In this section: "dependants", in relation to a claimant, means: (a) such of the following persons as are wholly or partly dependent on the claimant at the time that the liability in respect of which the claim is made arises: (i) the husband or wife of the claimant, (ii) a de facto partner of the claimant, (iii) a child, grandchild, sibling, uncle, aunt, niece, nephew, parent or grandparent of the claimant (whether derived through subparagraph (i) or (ii), adoption or otherwise), (iv) any other person who is a member of the claimant's household, and (b) any unborn child of the claimant (whether derived through paragraph (a) (i) or (ii), adoption or otherwise) at the time that the liability in respect of which the claim is made arises and who is born after that time. "gratuitous domestic services" means services of a domestic nature for which the person providing the service has not been paid or is not liable to be paid. (2) When damages may be awarded Damages may be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, but only if the court is satisfied that: (a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of "dependants" in subsection (1)-the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and (b) the claimant's dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and (c) there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant's dependants: (i) for at least 6 hours per week, and (ii) for a period of at least 6 consecutive months, and (d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances. Gratuitous Care for Mrs Perez 21Mrs Perez was born on 20 December 1946. At the age of 14 she contracted rheumatic fever, which caused some permanent damage to her heart. 22In 1980 she consulted a cardiologist, Dr Edward Chow, complaining of increasing symptoms of breathlessness on exertion, particularly when walking up slopes or running for 100 yards. Investigations demonstrated moderate severe mitral stenosis and mild mitral incompetence. Mitral valvotomy was performed by Prof John Wright with the result subsequently described by Dr Chow as "good". 23Dr Chow again examined Mrs Perez in March 1984. He reported as follows: from the cardiac point of view, she was doing quite well since the mitral valvotomy.... The mitral valve was functioning well, with no significant restenosis or regurgitation. 24In September 2009 Mrs Perez developed further symptoms of exertional dyspnoea. She was referred to Professor Dominic Leung who performed a percutaneous trans-mitral valvotomy at Liverpool Hospital. Following this procedure Dr Chow noted that: The patient was doing well, had a successful trip to Chile. 25In June of 2011 Mrs Perez reached stage II of the Bruce Exercise Protocol with a total exercise duration of 5.5 minutes limited by dyspnoea. When last reviewed by Dr Chow in July 2012 Mrs Perez again reached stage II of the Bruce Exercise Protocol with a total exercise duration of five minutes, no exercise induced ischaemic changes being noted. 26Dr Chow concluded his report of 9 November 2012 with the statement that: In summary, Mrs Marlene Perez has a long history of rheumatic valvular disease, which required surgery by Professor John Wright in 1981, with subsequent trans-mitral valvoplasty done by Professor Dominic Leung. Since then her cardiac status has been stable. 27In a further report of 7 January 2013 directed to the plaintiff's solicitors Dr Chow wrote: Further to my detailed report on detailed cardiac history of rheumatic valvular disease of Marlene Perez, it is my opinion that disability associated with the mitral valve disease which required two surgical procedures, does affect her ability to care for herself and perform house duties which require moderate exertion. It is also in my opinion with the natural history of rheumatic valvular disease she may have further problem with her mitral valve disease, such as develop restenosis or incompetence; both can affect her ability to care for herself, as well as her house duties. 28Dr Gary Helprin, a consultant cardiologist, examined Mrs Perez for the purpose of this case. Mrs Perez reported to Dr Helprin that she can walk on the flat, although she is mildly breathless climbing stairs. She is able to do the shopping, although finds it difficult to carry heavy bags. She manages to do the laundry and washes dishes etc without difficulty. 29In the opinion of Dr Helprin Mrs Perez has a reasonably good exercise capacity, but does have some limitation in agility. He thought it reasonable that she have a fortnightly visit by a house cleaner to do the heavy work. He summarised his opinion as follows: Mrs Perez has had successful treatment for rheumatic heart disease, and she has good exercise capacity as demonstrated on exercise treadmill testing. Nevertheless, she has some limitation in upper body agility, and it would be reasonable to recognise gratuitous care for gardening, heavy household cleaning (she can do light household work) and driving for shopping and appointments. 30In evidence Mrs Perez said that she gets agitated and breathless when attending to domestic tasks. She often feels dizzy, feels unbalanced and bumps into things. She is able to walk slowly for half an hour on a flat surface without getting breathless. She can vacuum the floor if she does it slowly. Mr Perez helps her in taking the clothes from the washing machine and hanging them on the line. 31Mrs Perez tends to her plants in the garden, but does not do any of the heavier tasks. Mr Cristian Perez, her son, gave evidence that she did mow the lawn after her husband became ill. When he noticed this he assumed the task. She cooks the meals and cleans the kitchen. She is unable to drive and is dependent upon Mr Perez for transport to and from medical appointments, shopping, and visiting the homes of her children and grandchildren. Mr Perez is still able to drive short distances. 32Since Mr Perez fell ill Mrs Caroline Leiva, his daughter, has been doing the household cleaning for 2 to 3 hours twice each week, and Mr Cristian Perez, his son, has cut the lawns and trimmed the edges each week or fortnight. This task takes approximately one hour and 15 minutes. 33Because of the accumulation of leaves in the gutters and other vegetation Mr Cristian Perez recently spent between four and six hours cleaning the garden generally. He estimated that this task would require 45 minutes to an hour if done on a regular basis, although I don't know whether he means each week or each fortnight. 34Ms Kahren White, an occupational therapist retained by the plaintiff's solicitors, estimates the present need for garden and lawn maintenance at two hours per fortnight, and the present need for heavier domestic and community tasks of cleaning, laundry, transport and shopping at two hours twice each week. This roughly accords with the opinion of Dr Helprin. Past Gratuitous Care for Mrs Perez 35There is obvious overlap between the past gratuitous care required by Mr Perez, and that care required by his wife. I am unpersuaded that there is any task undertaken gratuitously which provides solely for the needs of Mrs Perez, and not the joint domestic needs of herself and her husband. 36This head of damage is subsumed within the damages awarded for past gratuitous care and future commercial care to Mr Perez. 37I decline to make any award in respect of any care prior to the date of Mr Perez's death. Future Commercial Care for Mrs Perez 38I have noted the estimate by Ms White of the present need as one hour each week for garden and lawn maintenance, and four hours each week for heavier domestic tasks, transport and shopping; a total of five hours each week. This estimate, necessarily impressionistic and inexact, was based upon the assumption that the health of Mrs Perez remained stable. There is no evidence upon which I could find that her health will deteriorate to any great extent. However, I believe the estimate does not make sufficient allowance for the services provided by Mr Perez in transporting Mrs Perez to and from the homes of her children. 39I allow 11 years at 3 per cent (490) x $26.36 x 6 hours=$77,498.40 to be discounted by 15 per cent. 40I award $65,873.64. Gratuitous Care Provided to the Children of Mr Perez 's Daughter 41The daughter of Mr Perez, Mrs Leiva, has two children, Yanitza, born on 23 April 1999, now aged 13 and Ariela born on 14 April 2008, now aged four. Mrs Leiva works as a nurse at Campbelltown Hospital, working predominantly nightshifts on three days each week. Her husband is employed as a manager at Porter's liquor store in Maroubra. He normally leaves for work at about 8:30 AM, and arrives home between 7 PM and 10 PM. He worked six days each week. 42In order to accommodate these arrangements the children stay three nights each week with Mr and Mrs Perez who provide full-time care. Despite Mr Perez's illness this care continues. 43Yanitza attends Mount Annan Christian College five days each week, and Ariela two days each week. Although Mr Perez formerly drove the children to school this duty is now performed by the children's father. On those occasions when the father is unavailable Mr Perez, who can still drive short distances, takes them in his car. Mr Perez also picks up the children after school. Public transport to the school is available from a bus stop seven minutes walk from the home. 44Before he fell ill Mr Perez provided transport to Yanitza so that she may attend extracurricular activities such as gymnastics, art classes and swimming. He also drove the children to medical appointments. Mr Perez also assisted Yanitza, who has learning difficulties, with homework. General Observations 45At common law the satisfaction of a plaintiff's own need for domestic services created by the defendant's tort requires an award of damages equivalent to the value of his or her loss. This follows from the conceptual approach to damages, which values, on commercial terms, the value of the services necessary to obviate the loss (Donnelly v Joyce (1974) QB 454, Griffiths v Kerkemeyer (1977) 139 CLR 161, Van Gervan v Fenton (1992) 175 CLR 327). 46Sullivan v Gordon [1999] NSWCA 338 was advanced upon the basis that another compensable need of the plaintiff created by the defendant's tort was the plaintiff's need to provide alternative care for another person in need of that care because of the destruction of the plaintiff's capacity to provide it. 47In Burnicle v Cutelli [1982] 2 NSWLR 26 Glass JA, dissenting in principle from the majority, held that Griffiths v Kerkemeyer did permit a claim for impairment of the plaintiff's capacity to provide gratuitous domestic services to others. His Honour also addressed the claim from the standpoint of the plaintiff's need. He said at 34: I am unable to see any reason in point of doctrine why the conceptual approach adopted in Donnelly v Joyce and Griffiths v Kerkemeyer should include a need for nursing due to an impaired capacity to do for oneself, but should exclude the need for domestic services due to an impaired capacity to do for one's family. 48Section 15B does not concern itself with the plaintiff's need, but with the need of the person to whom the plaintiff provided the gratuitous services. The section neither invites nor permits any enquiry into whether the plaintiff himself suffered from a reasonable need to ensure that the services were provided in his absence. 49This circumstance creates anomalies in the operation of s15B. The Position at Common Law 50The common law principles concerning the measure of damages appropriate to compensate a plaintiff's need for domestic services were stated by Gibbs J in Griffiths v Kerkemeyer to be: However in my opinion this Court should not abandon the principle that a plaintiff whose injuries have created a need for hospital or nursing services cannot recover damages in respect of that need (except of course for loss of amenities or pain and suffering) unless the satisfaction of the need is or may be productive of financial loss. However it should no longer be held that the fact that the services have been and will be provided gratuitously is conclusive of this question. The matter should, as it were, be viewed in two stages. First, is it reasonably necessary to provide the services, and would it be reasonably necessary to do so at a cost? If so, the fulfilment of the need is likely to be productive of financial loss. Next, is the character of the benefit which the plaintiff receives by the gratuitous provision of the services such that it ought to be brought into account in relief of the wrongdoer? If not, the damages are recoverable. 51This statement was recited and relied upon both by Brennan J, and in a joint judgement by Dawson, Toohey and McHugh JJ in Nguyen v Nguyen (1990) CLR 245. 52In Nguyen v Nguyen Brennan J said at [7]: In my opinion, damages under Lord Campbell's Act in respect of the provision of substitutionary services are assessed according to the same principles as those which govern the assessment of damages in personal injury cases in respect of needed services. Those principles were stated by Gibbs J. in Griffiths v. Kerkemeyer. 53In Burnicle v Cutelli Glass JA, accepting that the plaintiff's injuries prevented her from providing services to her family disallowed the claim in the instant case as unreasonable. He said: I would adopt with respect, the view of the Federal Court that expense incurred by anyone in the provision of domestic services can be recovered by the plaintiff since to disallow the claim will go in relief of the tortfeasor. But where the services have been and will be gratuitously provided, recovery also depends upon proof that it was reasonably necessary to procure the services at a cost, and therefore that it is reasonable to charge the cost of the gratuitous service to the tortfeasor. The answer to that question will, of course, be governed by the need of the plaintiff, the character of the services, the level of intensity at which they are provided, the person who provides them and such questions. 54Griffiths v Kerkemeyer, Nguyen v Nguyen and the dicta of Glass JA in Burnicle v Cutelli stand as authority for the proposition that at common law a claim for damages in respect of gratuitous services provided to satisfy the tortiously created needs of a plaintiff is maintainable whether or not the existence or satisfaction of that need is or may be productive of financial loss, but the claimant must first establish that, in the absence of gratuitous subventions, it would be reasonably necessary to procure the services at a cost. The Position under the Statute 55Mr Russell SC for the plaintiff submits that it is not permissible to have recourse to these authorities in the interpretation of s15B, because Parliament did not reintroduce Sullivan v Gordon damages (which were never part of the common law in any event) but "made it plain in introducing this, that this was a new regime, and one would have to find how to award damages within the four walls of the section." 56I think he is right. In his second reading speech, the Parliamentary Secretary said this: Until October 2005, so-called Sullivan v Gordon damages were awarded by courts in New South Wales in negligence actions. Such damages were said to compensate injured people for the cost of domestic services they were no longer able to provide to others because of the injury. In October 2005 the High Court overruled the award of such damages. The court highlighted a number of uncertainties concerning these damages. It found that they are inconsistent with the principles on which damages are awarded in tort actions. The court also noted the difficulty faced by courts in trying to identify the boundaries for Sullivan v Gordon damages when there are no clear underlying principles for such damages. The High Court said that it should be a matter for parliament, not the courts, to decide whether and in what circumstances these damages should be awarded. The Civil Liability Amendment Bill provides the Parliament with an opportunity to do just that. The Consequences of This Interpretation 57The plaintiff has established that the grandchildren were partly dependent upon him for domestic services before the defendant's liability arose. He has established that those dependents were not capable, and will not be capable, of performing the services themselves by reason of their age. He has established that but for his injuries he would have continued to provide the services for at least six hours per week for a period of at least two consecutive months. 58I reject the defendant's contention that no care is needed while the children are sleeping. The children are too young to be left alone at night. 59The only remaining question, posed by s15B(2)(d), is whether the need for the services is reasonable in all the circumstances. 60The word reasonable here qualifies only the word need. It does not, as does the common law, impose a requirement that in all the circumstances it be reasonable to replace services at a cost. 61The need in this case is created by the desire of the children's parents to maximise their income. 62In Mr Russell's submission if a need so created is reasonable that is the end of the matter. The Tribunal must focus upon the need itself, and ignore the fact that the need is otherwise met in a manner entirely satisfactory to the plaintiff, the children, their parents and Mrs Perez. He submits that because Mr Perez has lost the capacity to provide domestic services to grandchildren in need of those services he is entitled to damages in a sum equivalent to the value of that capacity, and: "It does not matter how it was replaced, it does not matter if it was replaced." 63This submission is entirely consistent with the decision of the Court of Appeal in Amaca Pty Ltd v Novek [2009] NSWCA 50 where Campbell JA (Giles JA and Tobias JA agreeing) approved the statement of Judge Kearns that "s15B(2)(d) required a consideration of all the circumstances that brought about the need and the reasons for the need". 64The Court of Appeal held that there was no error in the trial judge's holding that the need of a child for care created by the desire of parents to work full-time was a need reasonable in all the circumstances. 65The grandchildren Yanitza and Ariela continue to stay with Mr and Mrs Perez for three days (72 hours) each week despite the illness of Mr Perez. Mrs Perez attends to their needs. Their father has adjusted his schedules so that he is able on most occasions to drive the children to school. 66The plaintiff nevertheless claims $26,887.20 in respect of the four months of care since he fell ill, and $841,948.94 for the future until the youngest child turns 16, representing the value of his lost capacity to contribute to 60 hours of domestic services, oversight, supervision and comfort to the children when they are not at school. Since Mr Perez fell ill this care has been provided, as before, by his wife, and, in part by the children's father. 67I am of the opinion that it is entirely unreasonable to provide the services to the children at a cost because of the incapacity of Mr Perez. Mrs Perez has continued to stand willing and able to provide such care that only a grandmother can provide to her grandchildren. She formerly provided that care by her presence at the same place, and for the same hours, in the company of her husband. 68The idea that it is reasonably necessary that a paid assistant intrude upon the home, day and night, to stand by Mrs Perez, replacing the lost capacity of Mr Perez, is to my mind strange. Similarly strange is the idea that the incapacity of Mr Perez has somehow transformed the services previously rendered by Mrs Perez into post injury subventions that should not be brought into account in relief of the wrongdoer. 69Mr Perez has not given evidence of his need to secure an award of damages for his lost capacity in order to assuage any concern that the children may not be cared for in the future. This claim has little in common with the facts of Sullivan v Gordon. 70In Mr Russell's submission, although some may find this claim "viscerally unattractive", the words of the statute are imperative. I agree. 71Neither counsel suggested that the use of the words damages may be awarded in s15B(2) imported the restitutional principle of damage enunciated by Lord Blackburn in Livingston v Rawyards Coal Company (1880) 5 App Cas 25 (HL) at 39 . 72Were I not constrained by the statute I would allow only damages in respect of the lost capacity of Mr Perez to transport the children to and from school, after school activities, medical appointments and the like, together with a Malec v Hutton allowance for future care against the possibility of Mrs Perez falling into ill-health. Further Anomalies 73The award of damages to which Mr Perez is entitled pursuant to s15B is sufficient to provide a fund to meet all future care. Nevertheless they remain partially dependent upon Mrs Perez. If Mrs Perez is tortiously deprived of her capacity to provide that care she will herself be entitled to claim an equivalent amount of damages pursuant to the section. That circumstance is not covered by the exclusionary provisions of subsections (6) to (11) of s15B designed to prevent duplication. 74Similarly, if Mr and Mrs Perez were both tortiously incapacitated, each would have a claim for the loss of capacity to devote the same number of hours to care for the grandchildren. 75In each case, the liability of the tortfeasor or tortfeasors would be double the actual loss, but not constitute double compensation as each claim is independent. 76If a plaintiff dies before bringing a claim pursuant to s15B, those of his children dependent upon him for services are restricted by s4 of the Compensation to Relatives Act 1897 to such damages as are "proportioned to the injury." These damages are assessed according to the common law principles of Griffiths v Kerkemeyer and subject to the threshold of reasonable necessity to procure the services at a cost. Conclusion 77I allow the past claim in the sum of $26,887.20, and the future claim discounted by 15 per cent in the sum of $715,656.59: a total of $742,543.79. Gratuitous Care Provided to the Children of Mr Perez's Son 78Mr Perez's son Cristian Perez is married to Melissa. They have three children: twin boys, Sebastian and Javier, born on 11 October 2011 and now just over one year old, and a daughter, Mia, born on 4 January 2013. 79Melissa returned to work in May of 2011, seven months after the birth of the twins. Mr and Mrs Perez then attended upon the son's home on three days each week to care for the children between about 8 AM and 5 PM. On occasions they brought with them the other grandchildren. On the other two or three working days, the mother of Melissa attended. 80After Mr Perez fell ill neither himself nor Mrs Perez continued providing this care and Melissa's mother took over. Melissa again stopped work at the end of October 2012 in preparation for the birth of Mia. She has not resumed. 81The children's care is now provided by Melissa and Cristian with the assistance of Melissa's parents. When asked whether his mother-in-law was available to care for the children Mr Cristian Perez replied: "Absolutely, yes". 82Before Mr Perez fell ill Mr and Mrs Cristian Perez intended that Melissa should return to work and Mr and Mrs Perez continue to provide care for the children. 83While it is understandable that Mrs Perez presently stays at home to look after her husband, upon his death she will be free to resume caring for her son's children when Melissa returns to work. Past Care 84The plaintiff claims past care for eight hours 2.5 days (the average of two or three days each week) each week from May 2012 when Mr Perez fell ill until the present in respect of his incapacity to provide gratuitous domestic care to Sebastian and Javier. 85Mrs Melissa Perez stopped work at the end of October 2012. Thereafter the boys were cared for by Melissa and her mother. They did not stand in need of care from Mr Perez by reason of the desire of Melissa to work. 86Nevertheless S15B entitles Mr Perez to damages in respect of his incapacity to provide domestic care to Sebastian and Javier in the period from 1 May 2012 to 30 October 2012, notwithstanding the fact that the children's grandmother, Melissa's mother, provided that care during that time. 87I allow 26 weeks x 2.5 days x 8 hours x $26.36=$13,702. Future Care 88A claim is made for the commercial cost of care 8 hours per day, two days each week commencing now and running for four years until the boys turn five and commence school. A further claim is made for one hour in the morning and one hour after-school care for two days each week commencing when the boys turn five and continuing for the next seven years. 89The evidence is silent as to exactly when Mrs Melissa Perez intends to leave the children in care and recommence work, however, it is reasonable to suppose that she will return to work in July of this year, seven months after the birth of Mia, as she did seven months after the birth of the twins. 90On the evidence Mr Perez is entitled to damages calculated at a rate of 2 days x 8 hours x 3.5 years from July 2013 (multiplier 173.35) x $26.36=$73,112.00 discounted by 15 per cent = $62,145.20. The difference between this sum and the deferred value over four months is de minimis. 91He is also entitled to cost of domestic services to be provided to the boys for two hours each day for seven years after they commence school, deferred for four years: $129,812. Discounted by 15 per cent the sum is $110,340.20 92I am again of the opinion that, because Mrs Perez will no doubt recommence her attendances upon Cristian's children, and Melissa's mother, the other grandparent, will probably also continue in her role, it is unreasonable that these services be provided at a cost. 93Another reason for forming that opinion is that Mia does not qualify as a dependent of Mr Perez, because the extended definition of dependant in s15B(1) admits only of an unborn child of the claimant. 94When Mrs Melissa Perez returns to work it will be necessary that some arrangement is made for the care of Mia. The provision of that care will almost certainly be concurrent with care for the twins. Such a circumstance would obviate the need of the twins for the independent care of Mr Perez. 95Mr Perez is entitled to damages in the sum of $186,187.48 in respect of his lost capacity to provide domestic services to his grandchildren Sebastian and Javier. Summary of Damages General Damages: $290,000. Interest on General Damages: $2,250 Loss of expectation of life: $11,400 Past Gratuitous Care for the Plaintiff: $10,280.40 Future Care for the Plaintiff: $9,971 Future Care for Mrs Perez: $65,873.64 Past and Future Care for Yanitza and Ariela: $742,543.79 Past and Future Care for Sebastian and Javier: $186,187.40 Total: $1,318,506.24 Orders 96Judgement for the plaintiff in the sum of $1,318,506.24. 97I will hear the parties on costs. D J Russell SC instructed by Maurice Blackburn Lawyers appeared for the plaintiff G P F Rundle instructed by I V Knight Crown Solicitor appeared for the defendant DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 March 2013