Charles Karam v Farid Aude [2016] NSWDC 259

District Court New South Wales

Medium Neutral Citation: Charles Karam v Farid Aude [2016] NSWDC 259 Hearing dates: 4, 5, 6 October 2016 Decision date: 07 October 2016 Jurisdiction: Civil Before: Montgomery DCJ Decision: Assessment Catchwords: Attendant Care Services Legislation Cited: Motor Accidents Compensation Act 1999 NSW Cases Cited: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 White v Benjamin [2015] NSWCA 75 Hornsby Shire Council v Viscardi [2015] NSWCA 417 Category: Principal judgment Parties: Charles Karam (Plaintiff) Farid Aude (Defendant) Representation: Counsel: P.J. Trainor (Plaintiff) D.B. Wilson (Defendant)

Solicitors: Than & Associates (Plaintiff) Hall & Wilcox (Defendant) File Number(s): 2015/00357024

JUDGMENT 1. The plaintiff claims damages pursuant to the provisions of the Motor Accidents Compensation Act 1999 NSW (the "Act"). 2. The motor vehicle accident occurred on 20 September 2012. Breach of duty of care is admitted. The claim proceeds for assessment of damages for treatment expenses and compensation for domestic assistance only. 3. Pursuant to s 141B of the Act, domestic assistance is claimed on a past gratuitous attendant care basis commencing at the rate of six hours per week for the first six months, claimed at $24.50 per hour totalling $3,822 and (as clarified in Plaintiff closing submissions) thereafter at 3 hours per week. Future domestic assistance is claimed on the basis of commercially provided services, three hours per week at the rate of $35 per hour totalling $58,800. The Defendant did not contest those dollar per hour rates and accordingly, I adopt them. 4. Past out-of-pocket expenses are agreed at $2,846.47. It is also agreed that the refundable portion of out-of-pocket expenses, repayable to the insurer pursuant to s 83 of the Act, is $884.97. 5. The plaintiff was born on 25 December 1944. He was aged nearly 68 years at the date of the accident. He is now 72 years of age. The plaintiff proposes calculation of future damages applying the 5% multiplier of 560 for a Prospective Life Expectancy of 15 ¼ years. The defendant makes no submission to the contrary. I adopt that multiplier. He makes no claim for economic loss in the form of earnings, because he was retired for 3 years at the date of the accident. His WPI is less than the 10% threshold. 6. At the date of the accident he lived with his wife who is presently in her late 60s and his son Dory and daughter Susan, who are 39 and 36 years of age respectively. Presently his daughter's husband, the plaintiff's son-in-law, also lives in his home. 7. In short, except for a period which is not clearly identified in the evidence but which I understand to have been about one year to one and ½ years, when the plaintiff's daughter lived overseas, his household has included children of age in their 30s and his wife. The plaintiff's wife suffers from a degenerative condition identified by him as rheumatoid arthritis which according to the Plaintiff affects her hands but which is identified by his son Dory as affecting her knees. I accept that the Plaintiff's wife has a disability of degree not specified but that she as a mother and wife of her years and of some compromised physical capacity, prior to the accident, was in receipt of some degree of assistance in domestic duties from members of the household. 8. Plainly this is a modest claim. 9. That the plaintiff suffered injury in the motor vehicle accident is agreed. 10. That the injury resulted in short term serious pain is not available for contest on the evidence. 11. That there is some continuing pain is supported by all the evidence. 12. The question for determination in this case is whether the motor vehicle accident caused the entitlements claimed for treatment expenses and attendant care services pursuant to provisions of the Act.