Samar Abdul Rahman v Sarah Al-Maharmeh [2020] NSWDC 129
NSW Caselaw
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District Court
New South Wales
Medium Neutral Citation: Samar Abdul Rahman v Sarah Al-Maharmeh [2020] NSWDC 129
Hearing dates: 13 March 2020
Date of orders: 20 April 2020
Decision date: 20 April 2020
Jurisdiction: Civil
Before: Wilson SC DCJ
Decision: Orders at [95]:
1. the Defendant's Motion filed 28 August 2019 is dismissed with no orders as to costs;
2. leave to the Plaintiff to continue these proceedings is refused in accordance with s109(3) of the Motor Accidents Compensation Act 1999;
3. the Plaintiff's Motion filed 3 October is dismissed;
4. the Plaintiff is to pay the defendant's costs of the motion;
5. the Statement of Claim filed 19 June 2019 is dismissed;
6. the Plaintiff is to pay the Defendant's costs of the proceedings.
Catchwords: MOTOR ACCIDENT – extension of time to commence proceedings – time expired – discretion of Court to permit extension – whether full and satisfactory explanation provided – whether damages exceed requisite threshold
Legislation Cited: Civil Liability Act 2002 NSW, ss 15, 15B
Civil Procedure Act 2005 NSW, s 56
Motor Accidents Compensation Act 1999 NSW, s 109
Cases Cited: Boral Bricks Pty Limited v Cosmidis (2013) NSWCA 443
Gordon v Truong (2014) NSWCA 97
Malec v Hutton (1990) 169 CLR 638
Miller v Galderisi (2009) NSWCA 353
Sampco Pty Ltd v Wurth (2015) NSWCA 117
State of New South Wales v Moss (2000) NSWCA 133
Sullivan v Gordon (1999) 47 NSWLR 319
Walker v Howard [2009] NSWCA 408
Wynn v NSW Insurance Ministerial Corporation (1995) HCA 53
Texts Cited: None
Category: Principal judgment
Parties: Ms Samar Abdul Rahman (Plaintiff)
Ms Sarah Al-Maharmeh (Defendant)
Representation: Barristers:
Mr G Schipp (Plaintiff)
Mr W Reynolds (Defendant)
Solicitors:
Prominent Lawyers (Plaintiff)
Moray & Agnew (Defendant)
File Number(s): 2019/190375
Publication restriction: None
Judgment
INTRODUCTION
1. By Notice of Motion filed 3 October 2019, the Plaintiff seeks leave to maintain these Proceedings, notwithstanding the bar to same provided by s109 of the Motor Accidents Compensation Act 1999 (MACA).
2. The subject motor vehicle accident occurred on 30 November 2014, which would ordinarily require the commencement of proceedings within 3 years thereafter.
3. By reason of beneficial provisions in the Act, time ceases to run during certain periods such as when a matter is referred to the Claims Assessment Review Service (CARS) (s109(2)).
4. A CARS application was made on 30 November 2017, arguably being on the last day before the limitation period ceased or one day within that period.
5. The Matter proceeded through CARS with a certificate issued by Assessor Daley on 14 December 2018.
6. The Claimant then had 21 days within which to accept the award or, alternatively, to commence court proceedings within 2 months.
7. On 21 December 2018, the Plaintiff told her solicitor that she did not wish to accept the award. That was within the 21 day period permitted under the Act.
8. The Plaintiff then had 2 months from the issuance of the certificate by Assessor Daley (14 December 2018) within which to commence proceedings.
9. The extended period within which to commence proceedings expired 14 or 15 February 2019. [1] Proceedings were not commenced until the filing of a Statement of Claim in this Court on 19 June 2019, more than 4 months after the due date.
10. Additionally, an application was filed by the Defendant on 28 August 2019 to strike out the Statement of Claim as it was out of time. The Plaintiff subsequently filed a Notice of Motion seeking leave to continue these proceedings. It was agreed that the Defendant's Motion ought to be dismissed and the matter proceed on the Plaintiff's application for leave.
11. In support of the her application, the Plaintiff relied upon the following evidence:
1. affidavit of the Plaintiff sworn 30 January 2020 (Exhibit A);
2. further affidavit of the Plaintiff sworn 10 March 2020 (Exhibit B);
3. affidavit of Stan Ilic (Plaintiff's solicitor) sworn 31 January 2020 (Exhibit C);
4. further affidavit of Mr Ilic sworn 12 March 2020 (Exhibit D);
5. statement by the Plaintiff dated 30 November 2017 (Exhibit E); and
6. statement of Mohammad Boustani (the Plaintiff's son) undated (Exhibit F).
1. The Defendant relied on the following evidence:
1. affidavit of Anne Varela affirmed 28 August 2019 (Exhibit 1); and
2. further affidavit of Anne Varela dated 10 February 2020 (Exhibit 2).
1. The following documents were marked for identification:
1. Defendant's chronology (MFI 1);
2. Plaintiff's outline of submissions dated 12 March 2020 (MFI 2);
3. Plaintiff's chronology (MFI 3);
4. further submissions on behalf of the Defendant dated 14 March 2020 (MFI 4); and
5. submissions in reply by plaintiff dated 18 March 2020 (MFI 5).
LEGAL PRINCIPLES
1. Although s109 provides a bar to commencement of proceedings outside of the 3 year period, there is discretion for the Court to grant leave for proceedings to continue. Section 109(3) provides that the leave of the Court must not be granted unless:
1. the Claimant provides a full and satisfactory explanation to the Court for the delay; and
2. the total damages of all kinds likely to be awarded to the claimant, if the claim succeeds, are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134, as at the date of the relevant motor accident.
1. In respect of (a), the Defendant's submissions were centred on the period 14 December 2018 (CARS Certificate issued) and 14 or 15 February 2019 (date of expiration for commencing proceedings – s109(2)). The defendant did not refer to any period of unexplained delay outside of that period.
2. In respect of the latter, the maximum amount that may have been awarded under section 134 as at the date of the relevant motor vehicle accident was $492,000.00, creating a threshold for the granting of leave of $123,000.00.
3. The Defendant disputes that a full and satisfactory explanation has been provided and that the total damages would exceed the necessary threshold.
4. The only other relevant provision of the Act is section 66(2), which provides as follows:
"(2) in this chapter, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant from the date of the accident until the date providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay."
1. Accordingly, the period in which the explanation must be provided is for the date of the accident (30 November 2014) through to the date providing the explanation (30 January 2020), being Exhibit A. I note, however, that the plaintiff also relied upon evidence of explanation provided after that date, including a further affidavit of the plaintiff sworn 10 March 2020, as well as statements tendered during the hearing of the motion.
2. The issues, therefore, are as follows:
1. whether the Plaintiff has provided a full explanation;
2. whether the Plaintiff has provided a satisfactory explanation;
3. whether a reasonable person in the position of the Claimant would have failed to comply with the duty, or would have been justified in experiencing the same delay; and
4. whether the damages likely to be awarded to the Plaintiff exceed the requisite threshold.
ISSUES (a)-(c) – The Explanation
1. The evidence relied upon by the plaintiff to found an explanation during the critical period is scant. It comprises paragraphs 29-31 of Exhibit A in which she stated that on some unspecified date she instructed her solicitors to reject the award and "simply left the matter in the hands of (her) solicitors".
2. In her second affidavit (Exhibit B), she indicated that she was informed that Ms Daley's assessment of $8,082.35 had been handed down on 14 December 2018 and that she had 21 days to accept the assessment or, if she were to not accept it, 2 months to commence proceedings in Court. She was made aware of the deadline for the commencement of proceedings.
3. On 21 December 2018, she had a further conversation with Mr Coxall (her then solicitor), at which time she gave instructions to not accept the CARS assessment and to commence proceedings in Court.
4. The Plaintiff stated that she:
"was not able to confirm with Mr Coxall before the end of 2018 whether a statement of claim had been filed with the Court, as Prominent Lawyers closed down for the Christmas/New Year period on or about 22 December 2018, and did not reopen until about 7 January 2019."
1. On 15 February 2019, the Plaintiff, not having heard back from Mr Coxall, telephoned Prominent Lawyers.
2. She was informed that Mr Coxall was no longer working with Prominent Lawyers, and a new solicitor had taken over the day-to-day carriage of the matter.
3. On 26 February 2019, the Plaintiff again telephoned Prominent Lawyers and spoke to Mr Ilic. He informed her that he had carriage of her matter.
4. On 4 March 2019, the Plaintiff met with Mr Ilic and again provided instructions to commence Proceedings. No explanation is offered as to the period 15 February 2019 and 4 March 2019, other than the second phone call on 26 February 2019.
5. As at 4 April 2019, the Plaintiff was under the impression that her Claim had been filed with the Court. The reason for this is not clear.
6. Attached to Exhibit B (Annexure A) is an Authority Not Accepting CARS Award in which, amongst other things, the Plaintiff acknowledged that she had 21 days within which to accept the CARS assessment. That is on or before Friday 4 January 2019. The authority is dated 21 December 2018 and was witnessed by Mr Coxall.
7. The only other evidence relating to an explanation for delay appears in the affidavit of Mr Ilic, sworn 31 January 2020.
8. The explanation by Mr Ilic is not particularly material, as it commenced on 26 February 2019, when he "had an opportunity to review the file". This is outside the period put in dispute by the Defendant on this application.
9. He confirmed that on 4 March 2019 he had an opportunity for a conference with his client, and confirmed that his client instructed him to commence proceedings. The Statement of Claim was not filed until 19 June 2019. That delay is not satisfactorily explained other than by reference to an unexplained "miscommunication" between Mr Ilic and the principal of the firm (Exhibit C [13])
10. Mr Ilic did not provide any evidence or insight into what occurred during the period 14 December 2018 to 14/15 February 2019. Presumably, for at least part of that time, the matter was being managed by Mr Coxall who on some unknown date, left the employ of the Plaintiff's solicitor's firm. The closest Mr Ilic gets to providing any explanation for this failure appears in paragraph 15 of his affidavit:
"I have not had an opportunity to discuss that matter with the previous solicitor who had the day-to-day carriage of this matter on behalf of the Plaintiff, and had left Prominent Lawyers prior to my commencing in February 2019, as to why the Statement of Claim had not been filed within the 2 month period after the CARS award was handed down."
1. During the course of the hearing of the Notice of Motion, an application was made by the Plaintiff to call Mr Ilic to give evidence as to matters apparent from the solicitor's file. That application was opposed and dismissed. It was considered to be unfair to allow the Plaintiff's solicitor to adduce evidence on the run. This is contrary to the Court's procedure in relation to applications of this type, by way of Notice of Motion, which requires the filing and service of affidavit evidence in advance of the hearing. To grant such leave in the circumstances, would also offend the overriding purpose of the Court's rules, set out in s56 and following of the Civil Procedure Act 2005 NSW. The evidence was readily obtainable by reasonable diligence prior to the hearing of the Motion. No explanation was provided for why it was not adduced in proper form.
2. In determining whether or not the Plaintiff's explanation is full and satisfactory, I have had regard to the definition of that phrase in s66(2) of the Act.
3. In the Defendant's further submissions (MFI 4), it was submitted that there was no explanation of what occurred during the period 14 December 2018 to 14 February 2019. That, strictly speaking, is not accurate, as I have already observed. In the Plaintiff's first affidavit (Exhibit A) it is plain from paragraphs [28] – [31] that she instructed her solicitors to reject the CARS award and commence proceedings in the District Court. Further, she had left the matter in the hands of her solicitors and she would "from time to time" enquire as to what was happening with the claim.
4. Again, her second affidavit (Exhibit B) provided some further insight into what occurred during that period. On 18 December 2018, she was informed of the CARS assessment. On 21 December 2018 she had a conference with her solicitor, Mr Coxall, and provided instructions to not accept the CARS assessment and to proceed to Court. She also acknowledged that in the period 22 December 2018 through 7 January 2019 she was unable to contact her lawyers, as the office was closed for the Christmas/New Year period. Her next contact with the law firm was when she called them on 15 February 2020 "wanting to discuss may [sic] claim".
5. Whilst the Plaintiff refers to the office closure as being relevant to the explanation, absent is any insight as to why the Plaintiff failed to contact her solicitors once the offices reopened on 7 January 2019. It was not until more than one month later that she contacted the law firm to speak with her solicitor. No explanation is offered for this critical period.
6. Interpreting the evidence of the Plaintiff in the most favourable light, it might be said that she gave instructions within time to commence proceedings, and that her solicitors failed to act upon those instructions. That would appear to be the submission advanced on behalf of the Plaintiff, where it was submitted that "it is clear that the error was one of inadvertence" (MFI 2, at [12]).
7. The difficulty with that submission is that it then invites the Court to look at the explanation provided by the Plaintiff's lawyers as to the reason for not commencing proceedings within time. Although Walker v Howard [2009] NSWCA 408 involved a plaintiff who suffered catastrophic injuries, it stands as authority that a full account of the conduct of the Plaintiff may include others insofar as their conduct is relevant to the explanation for delay. It was stated that "the explanation must be full and satisfactory and address matters relevant to the explanation for delay" (at [53]).
8. Further, at [106], the Court stated:
"I disagree with the Primary Judge's conclusions that strictly only the conduct of Mr Howard needed to be explained. The authorities speak with one voice, that the acts and omissions of all relevant persons should be canvassed in the explanation to allow the Court to make an evaluation."
1. Regrettably, there is a lacuna in the evidence from the Plaintiff which does not permit the Court to make an assessment as to whether the explanation is satisfactory. The explanation is certainly not full. One would have expected an affidavit by Mr Coxall, the Plaintiff's former solicitor, or by Mr Ilic making reference to what occurred during the period between receiving instructions to commence proceedings and the time limit for the commencement of same expiring. Presumably, evidence could have been led from the principal of the firm who, I expect, but do not know, supervised Mr Coxall and Mr Ilic.
2. The Defendant's further submissions (MFI 4), commencing at [3.7], identified the type of evidence which one may have expected from the Plaintiff's lawyers:
1. the date upon which Mr Coxall left the firm;
2. what was disclosed in the Plaintiff's file as to what, if anything, occurred during the relevant period;
3. what the file disclosed as to why a draft statement of claim had not been prepared in anticipation of an award not being accepted, given it was known that the limitation period had all but expired the day CARS application had been signed on 30 November 2017;
4. what steps had been taken to obtain evidence from Mr Coxall and why no evidence was led from that solicitor;
5. what knowledge Mr Bazouni, the principal of the law firm, had of the matter during the period 14 December 2018 to 14 February 2019, and why no evidence had been led from him.
1. Further, the Defendant also points to the absence of evidence from the Plaintiff as to what she did during that period to ensure steps had been taken to file a claim within time.
2. The Plaintiff's response to that submission appears to be that the delay was caused by inadvertence on the part of the former solicitor, Mr Coxall, and that the Plaintiff herself did not contribute to her solicitor's failure. Mr Coxall's conduct can only be relied upon to provide an exploration up to the date he left the firm, whenever that was.
3. Whilst that may, in fact, be the explanation, there is no evidence which would permit the Court to make positive findings in that regard. Whilst the Plaintiff explained the delay up until 7 January 2019 by reference to the fact that the solicitor's office was closed through Christmas, there was no attempt to explain the period of delay following that date.
4. Accordingly, I find that the Plaintiff has failed to provide a full account of the conduct, including her actions, knowledge and belief (and those of her solicitor) from the date of the accident until the date providing the explanation.
5. I further find that the explanation is not a satisfactory explanation as a reasonable person in the position of the Claimant would not have failed to have complied with the duty, or would not have been justified in experiencing the same delay.
6. Accordingly, in relation to issues (a) – (c), I make findings adverse to the Plaintiff. That is, I find that the plaintiff has failed to provide a full and satisfactory explanation.
ISSUE (d) – Total Damages Likely to be Awarded (must exceed $123,000.00)
1. In light of the above findings, it is not necessary to consider this issue. I have done so, however, for completeness in any event.
2. On assessment at MAS, the Plaintiff failed to exceed the threshold of 10% whole person impairment, disentitling her to an award for non-economic loss.
3. Her claim, therefore, is limited to the following heads of damage:
1. past out-of-pocket expenses. At the CARS hearing, these were allowed in the sum of $8,082.35;
2. future out-of-pocket expenses, which according to the Plaintiff's solicitor (MFI 5 [19]) totalled approximately $25,000;
3. past gratuitous domestic assistance. Although the Plaintiff contended for a lesser amount, in the Defendant's submissions (MFI 4 [8]) counsel for the Defendant assessed the best case for the Plaintiff in relation to this head of damage at $30,480. In the analysis which follows it is clear that the Plaintiff failed to clear the thresholds (6 hours per week over 6 months), disentitling her to any damages for past gratuitous domestic assistance at all (s15(3) Civil Liability Act 2002 NSW). I will, however, proceed on the basis of the concession may be the Defendant;
4. future domestic assistance.
1. The determination in relation to (d) will be decisive as to the outcome of this issue.
2. The evidence relied upon by the Plaintiff in respect of future domestic assistance comprised the following:
1. medical evidence, principally the report of Susie Mullen, occupational therapist, (report dated 28 January 2020) (Exhibit C, page 90);
2. statement of the Plaintiff dated 30 November 2017 (Exhibit E); and
3. statement of the Plaintiff's son, Mr Boustani (undated and unsigned) (Exhibit F).
1. Dealing first with the lay evidence, the statement by the Plaintiff simply claims that prior to the accident she was independent in cleaning the family home and washing clothes. She would also cook. Post-accident, the Plaintiff "lost interest" in maintaining personal hygiene and self-care, and also care for her children. She stated that her 19 year old son assisted her in cooking and cleaning duties, among other tasks. It is questionable whether a loss of interest ought to result in a finding of need.
2. The statement by the Plaintiff's son comprises 16 paragraphs. He said that this mother "lost motivation" in doing the day-to-day tasks of cleaning the house and cooking. He said that he had previously hired a cleaner, paying them on average $100 a week to do the following:
1. sweep the floor;
2. wipe the floor tiles;
3. tidy and clean the lounge room;
4. clean the bathroom;
5. wash clothes and hanging out the laundry;
6. wash dishes.
1. At the time of the preparation of the unsigned and undated statement, Mr Boustani said that he was employed as an apprentice electrician and currently spends "at least 20 hours per week with (his) mother". He continues: "Previously, I would spend approximately double that time assisting my mother, especially immediately after the accident". Given that the statement is undated, it is not possible to ascertain the period in which he provided that assistance other than his assertion that it was "immediately after the accident".
2. I also raise whether "loss of motivation" is a proper basis to find need.
3. Generally, I found the statement of Mr Boustani unhelpful. As I have already noted, it does not bear a date or a signature. It was handed up during the course of the hearing of the Notice of Motion. He did not give evidence. The most notable assertion in his statement is that he had previously hired a cleaner, paying around $100 per week.
4. Turning to the medical evidence, reliance was placed upon the opinion of Dr Lee, orthopaedic surgeon, in the course of the hearing of the Motion. That was subsequently abandoned by the Plaintiff on the basis that there was no evidence that he had the requisite expertise to express an opinion as to the need for care (Boral Bricks Pty Limited v Cosmidis (2013) NSWCA 443 at [93]). For the Plaintiff, the best source of expert evidence on this topic is the report of Ms Mullen.
5. At this point, I should observe that medical evidence was gathered and tendered on behalf of the Defendant. That evidence is attached to Exhibit 2 and comprises of opinions by Dr Vickery, psychiatrist and pain management consultant, and Dr Pierides, specialist occupational physician. It is sufficient to say that both experts considerably undermined the Plaintiff's claim, finding 0% whole person impairment and generally no injuries attributable to the accident. Consistent with the obligation to take the Plaintiff's case at its highest, I have put those opinions to one side and will not have regard to them in the course of determining the most likely damages.
6. The report by Ms Mullen followed an assessment by the Plaintiff on 16 January 2020.
7. In the Executive Summary to her report, Ms Mullen stated "provision of some commercial hair care, domestic and gardening assistance is recommended for 3.5 hours per week. Refer to section 8 for details".
8. Before turning to section 8, I note that in section 6, Ms Mullen provided a Summary of Assessment in Implications on ADL's (Activities of Daily Living). Amongst the matters referred to there include the following:
* the Plaintiff is completing her personal care independently, except for hair washing, and is attending a hair dresser;
* she is driving locally;
* she is completing minimal domestic tasks, such as light meals and shopping for a few items;
* her daughters are assisting her with all other domestic tasks (note and compare the other, contradictory evidence that the Plaintiff was assisted by her son);
* she has paid for cleaners in the past (this is at odds with the statement by Mr Boustani, who claimed that he paid for cleaners).
1. In section 7 of the report, Ms Mullen undertook an assessment of past gratuitous care, broken down into 3 stages.
2. Stage 1 is the period 30 November 2014 through to 30 March 2015. During this period, the Plaintiff independently managed most of her personal care, with her daughters providing massage to her back and neck. The Plaintiff stated that after the motor vehicle accident she continued to make light meals such as breakfast and lunch. Her children would contribute to the cooking to the extent of about 2 hours per week. During this period she also commenced paying for lawn mowing. There is no evidence of any payments to gardeners or indeed carers at any time post-accident.
3. For the 1st stage, Ms Mullen assessed the Plaintiff's needs as being approximately 7.25 hours per week ([7.3.5]).
4. Stage 2, post-accident, was the period 31 March 2015 through 31 January 2018, during which time Ms Mullen assessed the need for assistance at 5.5 hours per week ([7.3.9]). During this period, the Plaintiff claims to have engaged a lawn mower and cleaner for 3 hours per fortnight, although the exact dates were not provided to Ms Mullen. The 3rd stage, post-accident, was the period 1 February 2018 through 16 January 2020. During that period, Ms Mullen estimated that the Plaintiff required 4.25 hours of assistance per week ([7.3.14]).
5. Since 31 March 2015, the Plaintiff fell below the weekly threshold for damages for gratuitous domestic assistance and also below the 6 month threshold for any damages for domestic assistance at all.
6. In section 8 of the report, Ms Mullen considered the Plaintiff's future needs. First, she considered that the Plaintiff required commercial hairdressing services at a cost of $40 per week "until pain management services commence e.g: 6 months". Ms Mullen then goes on to consider the need for domestic and gardening assistance. Her opinions are prefaced by the following qualification:
"Attendance with a pain specialist and multi-disciplinary pain management programme, as recommended in section 6, would increase her contribution to light domestic tasks using pacing and resting to manage pain with limits."
1. Ms Mullen went on to make the following observations:
* the Plaintiff is managing meal preparation, making simple meals such as sandwiches, heating frozen foods and buying takeaways such as kebabs, pizzas and pides. Ms Mullen suggested that "she has the time during the day to pace out cooking dinners by doing some preparation and then resting and repeating this" ([8.2.2]);
* although Ms Mullen took a history of the Plaintiff not performing any kitchen cleaning, Ms Mullen suggested that she would be capable of washing dishes using pacing and resting to manage her condition ([8.2.3]);
* the Plaintiff could wipe over the basin and should continue doing this;
* the Plaintiff was able to partially make her bed and could have completed the task by straightening her quilt over the bed with pacing and resting ([8.2.7]);
* the Plaintiff could partially load the washing machine, and with pacing and resting could have completed this and put on a load of laundry. She could utilise clothes airers to hang out small items but may require assistance with heavier items ([8.2.8]);
* she is capable of shopping for small amounts of groceries as needed and this will continue ([8.2.9]).
1. Ms Mullen then completed the following assessment and summary of the Plaintiff's future needs:
* kitchen and cleaning (0.5 hours);
* vacuuming and mopping floors (1 hour);
* cleaning bathrooms (0.25 hours);
* change bed linen on 2 beds weekly and tidy bedrooms (0.5 hours);
* laundry (0.5 hours);
* spring cleaning (0.25 hours);
* lawn mowing and gardening (0.5 hours).
1. The total recommended future care and assistance was 3.5 hours per week, which is below the threshold for gratuitous care (6 hours per week). Unless the Court were to find that the assistance would be provided commercially, rather than by the Plaintiff's children or others on a gratuitous basis, then her claim for future care would fail.
2. Before leaving the report by Ms Mullen, I note that in section 9 she refers to child care. This issue arose in the course of discussions at the hearing of the Notice of Motion at which time it was confirmed that a claim under s15B of the Civil Liability Act 2002 NSW was not made.
3. I find Ms Mullen's opinion difficult to accept. Her opinion was largely qualified by the suggestion that the Plaintiff's capacity for domestic assistance would improve after she received pain management services. As the cost of such services ($9,600.00) and of Assistive Technology ($3,823.20) was allowed in future out of pocket expenses, it seems probable that Ms Mullen's opinion would be that any needs will decrease over time "using pacing and resting". Even taking the case for the Plaintiff at its highest, it seems likely that little or no damages would be allowed for future domestic assistance.
4. Leaving the question of the quantification of future domestic assistance to one side, the Defendant raised a separate argument against allowing paid domestic assistance in this case. In its further submissions (MFI 4), the Defendant took issue with the absence of any evidence that the Plaintiff would seek out commercial services.
5. Reference was made to the decision of Miller v Galderisi (2009) NSWCA 353 and Sampco Pty Ltd v Wurth (2015) NSWCA 117. Reference was made to the remarks by the Court in paragraph 21 of the judgment, where it was stated that 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.
6. After considering the decisions of Malec v Hutton (1990) 169 CLR 638, State of New South Wales v Moss (2000) NSWCA 133, and Wynn v NSW Insurance Ministerial Corporation (1995) HCA 53, the Court went on to state:
"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. If any such convention were to be adopted, it would, as with vicissitudes, require the plaintiff's particular circumstances to be taken into account. The respondent's circumstances in this case militate against any such allowance. Accordingly, 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."
1. In her further written submissions (MFI 5), the Plaintiff accepted that in the matter of Miller v Galderisi there was no evidence that gratuitous assistance would cease at some future time. It was submitted "thus, the award made in the Court below could not be justified". It was submitted that the Court still needs to make an assessment as to whether there will be a need for commercial domestic assistance arising in the future after the availability of gratuitous assistance has ceased. In the matter of Sampco Pty Ltd v Wurth the same question arose. The Court referred to Miller v Galderisi as well as Gordon v Truong [2014] NSWCA 97 (an authority relied upon by the Plaintiff in this case).
2. In Sampco, the Court, in referring to Gordon v Truong, acknowledged the need for future commercial domestic assistance involved an exercise in prediction in accordance with the principles established in Malec v Hutton. Whilst counsel for both parties accepted the Malec approach, it was observed by the Court that the case was not run on the basis that, due to some change in circumstances, gratuitous assistance might cease and commercial assistance might be required. It depended upon an expressed preference of the Plaintiff to have services provided commercially.
3. The Court stated at [103]:
"In the absence of any precise evidence as to the heavier domestic work which required assistance as a result of the injury to the foot, it is not established that the Plaintiff required more than 3 or 4 hours domestic assistance from her husband. Given his willingness to provide that assistance in the past, he was not unreasonable to expect that it would continue in the future."
1. And at [105], the Court further stated:
"(The) evidence provided no sufficient basis for a finding that Mr Worth would not continue to provide the limited assistance required as a result of the injury to the Plaintiff's foot, nor that, if an award were made on this account there was any likelihood that it would be employed for the purpose of obtaining domestic assistance. No such award should be made."
1. In reply, the Plaintiff relied upon the decisions of Gordon v Truong, and Boral Bricks Pty Ltd v Cosmidis.
2. In the matter of Gordon v Truong, Macfarlane JA and Simpson J, whilst accepting there was no evidence that the gratuitous carer would continue to provide assistance, stated that there was also no evidence of the plaintiff's pre-injury financial position which might permit an inference that it was out of financial necessity that the care had previously been provided gratuitously. The majority then inferred that the carer would return to full time work and that the plaintiff would be obliged to pay for additional services. An allowance for future commercial assistance was allowed on the basis that to not make such an allowance may deplete damages awarded under other heads.
3. Basten JA was in the minority and adopted the Malec v Hutton approach to the assessment of damages for future commercial domestic assistance. His Honour stated at [9]:
"On the other hand, where domestic assistance is being provided gratuitously and there is an absence of evidence that such assistance would cease either immediately, or at some time in the future, it would be inconsistent with principle to make an award for commercial domestic assistance, to commence immediately."
1. In the matter of Boral Bricks Pty Ltd v Cosmidis a cushion was provided for future commercial domestic assistance. That decision may be distinguished from the present in that there was evidence from the Plaintiff that he would rather pay somebody to perform domestic assistance than to have such services performed gratuitously.
2. Whilst I accept that the absence of precise evidence does not necessarily disentitle a plaintiff to an award of damages for future commercial domestic assistance, I accept the submission from the Plaintiff that a determination is to be made based upon all of the evidence, including the Plaintiff's particular circumstances.
3. The evidence derived from the report of Ms Mullen is that the Plaintiff has 5 adult children who moved out of the family home at the end of 2017. At that time, the Plaintiff ceased engaging the paid cleaner as she as unable to continue to afford this. This, as previously observed, is at odds with the assertion by her son that he, in fact, paid for the cleaner. In any event, the use of paid cleaners coincided precisely with the 5 adult children moving out of home at the end of 2017, no doubt reducing the need for domestic assistance generally.
4. Only the Plaintiff and her youngest daughter, Mariam, remain in the family home. According to Ms Mullen, her older daughter, Elham, visits every second day for 2 – 3 hours each time to socialise and "help with domestic tasks as needed". It would appear that in addition to the assistance being provided by her daughter, the Plaintiff has paid for lawn mowing and gardening since the motor vehicle accident.
5. In relation to the domestic assistance provided gratuitously, in the absence of evidence and upon assessment of the Plaintiff's particular circumstances, I conclude there is no reason to find the present arrangement will change such that a commercial carer will be engaged to provide assistance for 3 hours per week.
6. In relation to the lawn mowing and gardening, given that it has been paid for from the date of the accident to date, a fact not disputed, I consider that to be reasonable. Whilst I do not have any information about the cost of the lawn mowing and gardening paid by the Plaintiff, Ms Mullen assessed that cost at being about $30 per week. According to the Plaintiff's submissions (MFI 2 [33]), the Plaintiff has a life expectancy of some 36 years with an applicable multiplier of 885. Allowing $30 per week for commercial lawn/garden assistance would result in an award of damages of $26,550.
7. If one adds that sum to the amounts allowed for past treatment expenses, future treatment expenses and past domestic assistance (should that be allowed at all), then the total damages of all kinds likely to be awarded to the Plaintiff is less than 25% of the maximum amount that may be awarded for non-economic loss as at the date of the motor accident ($123,000).
8. Accordingly, I find that the Plaintiff has failed to discharge her onus of establishing the matters necessary under s109 to enliven the Court's discretion to permit these proceedings to continue.
ORDERS
1. I make the following orders:
1. the Defendant's Motion filed 28 August 2019 is dismissed with no orders as to costs;
2. leave to the Plaintiff to continue these proceedings is refused in accordance with s109(3) of the Motor Accidents Compensation Act 1999;
3. the Plaintiff's Motion filed 3 October is dismissed;
4. the Plaintiff is to pay the defendant's costs of the motion;
5. the Statement of Claim filed 19 June 2019 is dismissed;
6. the Plaintiff is to pay the Defendant's costs of the proceedings.
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Endnote
1. There was a dispute as to whether the 2 month period expired on 14 or 15 February 2019, however, I do not consider that to be material.
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Decision last updated: 22 April 2020