On 7 October 2021, Justice Freeburn awarded $314,345 in damages to Ms Kate Ann Sutton. Ms Sutton was injured in a motor vehicle accident on 15 February 2015, where a vehicle made a significant impact to the rear of her own vehicle.
The decision offers an interesting examination of the evidence needed to establish a care and assistance claim. The full text of the decision can be found here.
Ms Sutton was entitled the following damages according to Justice Freeburn:-
| Head of Damage | Amount |
| General Damages | $21,280 |
| Medicare refund (admitted) | $4,969 |
| Past out-of-pocket expenses (admitted) | $8,519 |
| Interest thereon (half agreed rate of 1.74% x 6.6 years) | $489 |
| Past Loss of earning capacity | $180,336 |
| Interest thereon (half agreed rate of 1.74% x 6.6 years) | $10,355 |
| Past Superannuation Loss | (included above) |
| Future Loss of Earning Capacity | $77,357 |
| Future Superannuation Loss | (included above) |
| Past Gratuitous Care and Assistance | nil |
| Future Gratuitous Care and Assistance | nil |
| Future medical expenditure | $9,600 |
| Future pharmaceutical expenditure | $1,440 |
| Total: | $314,345 |
The failure to establish a care and assistance claim in this case warrants mention. Ms Sutton had claimed for $61,290 in past gratuitous care and assistance. Her primary care giver was her husband Mr Sutton.
A number of evidentiary issues were raised regarding the reliability, consistency and unrealistic elements of Mr Sutton’s “guestimation” (as Mr Sutton described it) of the services he provided after the accident, particularly when he was subjected to cross-examination. Mr Sutton’s “guestimation” was also made two years after the accident. It was also noted that he had not kept a written record of gratuitous services. Justice Freeburn did not consider the “guestimation” capable of adjustment either, due to its unreliability.
Having regard to these factors, Justice Freeburn made no award for past or future care assistance.
It is not uncommon for legal practitioners to be overly reliant on the instructions of their clients and their care givers and the estimates of care and services provided by occupational therapists. These instructions and estimates are often obtained months or even years after the accident and after the alleged care and services have been provided. The decision in Sutton v Hunter is a remainder to plaintiff law firms of the risks of not keeping contemporaneous records of care received and relying on estimates made well after the fact, that could be prone to inaccuracies.
Where contemporaneous care and services records have not be maintained, the writer suggests careful scrutiny of the estimates provided by clients, along with detailed instructions of care and services received, being provided to any expert occupational therapists being commissioned. Expert evidence from an occupational therapist is certainly useful in care and assistance claims, particularly with respect to itemising various types of services provided, commercially valuing such services and commenting on any unmet care needs that could be claimed as future losses. However, the foundation of a good care and assistance claim are the evidence and instructions provided by the actual care givers and practitioners should be cautious when making such claims when the estimates provided by a care giver are unreliable, inconsistent or seemingly unrealistic, even if such estimates are relied upon by an occupational therapist when formulating their own opinions.
