Australia: Considerations when assessing uncommon heads of damage

Focus: Dakin v Payne [2012] NSWDC 22
Services: Insurance
Industry Focus: Insurance

This article provides a useful example of a recent quantum assessment handed down by the New South Wales District Court in a personal injury claim. In particular, the case provides insight into how courts consider several more uncommon heads of damage.


The plaintiff, Ms Dakin and the defendant, Mr Payne were involved in a car accident. The plaintiff commenced proceedings under the Motor Accidents Compensation Act 1999 (NSW).The defendant admitted negligence, with the Court apportioning contributory negligence of 20% to the plaintiff.


The major consideration for the court to determine in this case was based on assessing the disputed heads of damage, some of which are discussed below.

Future economic loss

The plaintiff had three children and had two months maternity leave left at the time of the accident. She was employed part time as a workroom aid / receptionist at a pathology clinic, working 25 hours per week. She intended to continue working part time until her youngest child entered Year 7, after which she wished to obtain full time employment until the age of retirement. Ultimately, she aspired to become a pathology collector. The Court accepted these submissions.

The Court commented that there was no suggestion of any exaggeration or malingering on the plaintiff's part and noted that she was 'an impressive woman who has battled adversity with singular stoicism and courage', citing her efforts to return to work and her resumption of many of her previous domestic tasks as evidence of this.

The defendant submitted that the plaintiff's present working capacity was 20 hours per week but accepted that she may not reach this level for some time. The Court concluded that the plaintiff was not totally incapacitated and could work for two or three hours per day two days per week. Although she would be faced with enormous difficulties, she would no doubt be ultimately successful in obtaining employment.

The parties agreed that the plaintiff's current net earnings but for the accident on a full time basis would have been $765.50 per week and $480.00 per week for 25 hours.

The Court awarded $273,960.79 for future economic loss, allowing a net weekly loss of $375.00 for five years and thereafter a net loss of $550.00 per week to age 67, with a 15% reduction for vicissitudes. These figures reflected an 80% loss of capacity against the plaintiff's pre-accident weekly part time wage of $480.00 and her future full-time wage of $765.50 per week respectively.

Future domestic care

The defendant submitted that five hours per week for domestic care was appropriate and noted that the plaintiff currently appeared to be 'getting by' on four hours of domestic assistance per week. The plaintiff claimed 12 hours per week plus an additional seven hours per week for personal care commencing in 10 years due to future degeneration that was likely to occur.

The Court noted that the plaintiff's needs for domestic assistance were likely to increase when she returned to work. The strains on her body would increase and her capacity to perform domestic tasks would be diminished by the end of a day's work. She would also require increased domestic assistance after any future surgery. On the other hand, the Court said that the plaintiff's children would be expected to perform some tasks as they became older, if only for themselves, thereby lessening her domestic workload.

The Court allowed 10 hours of domestic assistance per week for the remainder of the plaintiff's life expectancy, which resulted in a total figure of $318,465.00. The extra seven hours per week sought by the plaintiff were specifically not allowed as the Court was not satisfied that the medical evidence established this need.

Future child assistance

The plaintiff claimed seven hours of paid care per week for 11 years until her youngest child turned 18. The defendant submitted that there should be no allowance as the plaintiff's youngest child was seven years old at the time and did not require assistance, and because the plaintiff in any event provides all of the childcare assistance that she would otherwise have provided.

The Court rejected the plaintiff's claim for child care as even her youngest child did not appear to need any assistance requiring physical activity other than transportation. The Court said her partner and perhaps her older children could assist in this regard once they have their own driver's licences. The plaintiff's entitlement to paid domestic assistance necessarily includes some services being provided to the children.

Holiday carer

The plaintiff claimed $50,000.00 for the additional cost of travel. The defendant submitted that the medical evidence did not justify this expense.

The Court found that travel will create extra obstacles for the plaintiff, particularly getting on and off aircraft, transporting bags and entry and exit to other forms of transport. The plaintiff may not always be accompanied by her partner and there was a foreseeable need for assistance during travel. However, the plaintiff would not require domestic assistance at home while she was travelling. The Court therefore made a modest allowance of $7,500.00 to accommodate for any extra assistance she may require during travel.

The Court made a total damages award of $1,790,341.57 which was discounted by 20% to account for contributory negligence. Judgment for the plaintiff was therefore $1,005,423.90.


The decision provides a useful example of the factors the District Court of New South Wales has taken into account when assessing quantum, particularly in less frequently claimed areas such as future domestic / travel assistance and paid child care. As this decision reveals, much will turn on the facts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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