"assisted care" , in relation to a dependant of a claimant, means any of the
following kinds of care (whether or not the care is provided gratuitously)--
(a) any respite care (being care that includes accommodation that is provided
by a person other than the claimant to a dependant who is aged or frail, or
who suffers from a physical or mental disability, with the primary purpose of
giving the dependant or claimant, or both, a break from their usual care
arrangements),
(b) if the dependant is a minor (but without limiting
paragraph (a))--any care that is provided to the dependant by a person other
than the claimant where--
(i) the person is a parent of the dependant (whether
derived through paragraph (a)(i) or (ii) of the definition of
"dependants" in this subsection, adoption or otherwise), and
(ii) the care
includes the provision of accommodation to the dependant.
(a) such of the following
persons as are wholly or partly dependent on the claimant at the time that the
liability in respect of which the claim is made arises--
(i) the person to
whom the claimant is legally married (including a husband or wife of the
claimant),
(iii) a child, grandchild, sibling, uncle, aunt, niece, nephew, parent
or grandparent of the claimant (whether derived through subparagraph (i) or
(ii), adoption or otherwise),
(b) any unborn child of the claimant (whether
derived through paragraph (a)(i) or (ii), adoption or otherwise) at the time
that the liability in respect of which the claim is made arises and who is
born after that time.
"gratuitous domestic services" means services of a domestic nature for which
the person providing the service has not been paid or is not liable to be
paid.
(a) in the case of any dependants of the claimant of
the kind referred to in paragraph (a) of the definition of
"dependants" in subsection (1)--the claimant provided the services to those
dependants before the time that the liability in respect of which the claim is
made arose, and
(b) the claimant's dependants were not (or will not be)
capable of performing the services themselves by reason of their age or
physical or mental incapacity, and
(c) there is a reasonable expectation
that, but for the injury to which the damages relate, the claimant would have
provided the services to the claimant's dependants--
(i) for at least 6 hours
per week, and
(ii) for a period of at least 6 consecutive months, and
(d)
there will be a need for the services to be provided for those hours per week
and that consecutive period of time and that need is reasonable in all the
circumstances.
(3) If
a dependant of the claimant received (or will receive) assisted care during
the 6-month period referred to in subsection (2)(c)(ii) and the court is
satisfied that the periods of that care were (or will be) short-term and
occasional, the court may--
(a) in determining whether the claimant would have
provided gratuitous domestic services to the dependant during a particular
week for at least the 6 hours referred to in subsection (2)(c)(i), disregard
the week if assisted care was (or will be) provided during that week, and
(b)
in determining whether the claimant would have provided
gratuitous domestic services to the dependant during the 6-month period
referred to in subsection (2)(c)(ii), disregard any periods during which the
assisted care was (or will be) provided in that 6-month period,
but only if
the total number of weeks in which the care was (or will be) provided during
the 6-month period does not exceed 4 weeks in total.
(4) Determination of
amount of damages The amount of damages that may be awarded for any loss of
the claimant's capacity to provide gratuitous domestic services must not
exceed the amount calculated at the same hourly rate as that provided by
section 15(5) regardless of the number of hours involved.
(a) may only award damages for that loss in accordance
with the provisions of this section, and
(b) must not include in any damages
awarded to the claimant for non-economic loss a component that compensates the
claimant for the loss of that capacity.
(6) Circumstances when damages may
not be awarded The claimant (or the legal personal representative of a
deceased claimant) may not be awarded damages for any loss of the claimant's
capacity to provide gratuitous domestic services to any dependant of the
claimant if the dependant has previously recovered damages in respect of that
loss of capacity.
(7) A person (including a dependant of a claimant) may not
be awarded damages for a loss sustained by the person by reason of the
claimant's loss of capacity to provide gratuitous domestic services if the
claimant (or the legal personal representative of a deceased claimant) has
previously recovered damages in respect of that loss of capacity.
(a) the loss resulted from the motor accident injury (within
the meaning of that Act) in respect of which the claimant is a participant in
that Scheme, and
(b) the treatment and care needs (within the meaning of that
Act) of the claimant that are provided for or are to be provided under the
Scheme include the provision of such domestic services to the claimant's
dependants.
(b)
an insurer has made, or is liable to make, payments to or on behalf of the
claimant for such services under section 83 (Duty of insurer to make hospital,
medical and other payments) of that Act.
(10) Damages may not be awarded if
they can be recovered as damages for attendant care services Damages may not
be awarded to a claimant under this section in respect of any loss of the
claimant's capacity to provide gratuitous domestic services to the claimant's
dependants if (and to the extent that)--
(a) the claimant could recover
damages for gratuitous attendant care services (within the meaning of
section 15) in respect of the same injury that caused the loss, and
(b) the
provision of such attendant care services to the claimant also resulted (or
would also result) in the claimant's dependants being provided with the
domestic services that the claimant has lost the capacity to provide.
(a) the extent of the claimant's
capacity to provide the services before the claimant sustained the injury that
is the subject of the claim, and
(b) the extent to which provision of the
services would, but for the injury sustained by the claimant, have also
benefited persons in respect of whom damages could not be awarded under
subsection (2), and
(c) the vicissitudes or contingencies of life for which
allowance is ordinarily made in the assessment of damages.
