The Court cares about a loss of ability to provide care

01 November 2021

This Victorian Supreme Court decision provides guidance regarding the calculation of damages for gratuitous care to others in the context of a claim for damages for mesothelioma.

In Issue

  • The proceeding involved an assessment of damages for a plaintiff suffering from mesothelioma. Notably, the Supreme Court decided how to calculate damages for a loss of ability to provide gratuitous care.

The background

The plaintiff was a 69-year-old mother and grandmother who was exposed to asbestos during her childhood. Her childhood house was located 2 streets away from a cement sheet factory which was owned by the defendant. In April 2021, the plaintiff was diagnosed as suffering from mesothelioma caused by the inhalation of asbestos dust and fibres. At the time of the trial, she had completed 4 rounds of chemotherapy however had metastatic disease in her thoracic spine and was classified as Stage IV.

Relevantly, prior to the plaintiff’s diagnosis she babysat her grandson for 3 days per week to enable her son and his partner to attend work. They had just had a 2nd child and it was anticipated the same arrangement would continue for this child too. The evidence outlined that the plaintiff’s son and his partner were expecting to be dependent on such babysitting until their first child reached the end of his primary school.

The decision at trial

During the 2nd day of the trial, the defendant admitted liability and as such the remaining question for the Court was the assessment of damages.

Importantly, the Court had to determine how to calculate damages for a loss of ability to provide gratuitous care in light of section 28ID of the Wrongs Act 1958 (Vic) (the Act). The Court determined that damages for the loss of ability to provide gratuitous care to others may be assessed within the parameters of section 28ID(3) of the Act and the maximum provisions set out in section 28IE of the Act. While the Court acknowledged that damages for gratuitous care provided to another was not analogous to Griffiths v Kerkemeyer damages, the Court accepted that the method for calculating Griffiths v Kerkemeyer damages provided a useful template for the calculation of damages under section 28ID of the Act.

Further, the Court noted that section 28IE of the Act is concerned with establishing a cap on the amount which may be awarded for damages under section 28ID of the Act, with the cap being the average weekly earnings for employees in Victoria. In circumstances where the evidence established that nannying services were charged at a commercial rate which fell below that cap, the Court determined that the rate to be applied was the commercial cost of providing those services.

Given the Court was satisfied that the grandchildren were the plaintiff’s dependants under subsection 28ID(2) of the Act, the Court calculated the average hours of care provided per week as well as the average weekly earnings. The Court also noted that vicissitudes are applicable to future gratuitous care of others, and given no vicissitudes were identified by the Court to lead to a heightened discount, the Court applied a discount of 15%. Including the discount, the Court assessed damages pursuant to section 28ID of the Act to be $247,121 (comprised of $24,093 for past damages and $223,028 for future damages applying a discount for vicissitudes).

Separately, the Court was also asked to determine whether gratuitous care in the form of ‘emotional support’ provided by the plaintiff’s husband fell within Griffith v Kerkemeyer damages. The Court determined that the ordinary emotional support provided by the plaintiff’s husband was not a ‘service’ which was able to be incorporated into a calculation of gratuitous care.

Implications for you

This case clarifies the calculations of damages for loss of ability to provide gratuitous care for another person. In light of the Supreme Court’s decision, it appears that damages for the loss of ability to provide gratuitous care will be calculated in a way similar to the approach taken for Griffiths v Kerkemeyer damages bearing in mind the cap included in section 28IE of the Act.

Further, the case also indicates that damages for ordinary emotional support provided to a plaintiff by their family members will not be considered a ‘service’ which is capable of being quantified for the purpose of damages.

Reid v Seltsam Pty Ltd [2021] VSC 653

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