Where medical care falls below a reasonable standard, you may be eligible for compensation (also known as damages).
There are a number of areas of damages, called ‘heads of damages’ that can be claimed in medical negligence cases. However, many plaintiffs are not aware that in some circumstances, damages can be claimed for their inability to provide domestic assistance to their children and dependants. This head of damage is commonly known in NSW as Sullivan v Gordon damages.
What are Sullivan v Gordon damages?
Sullivan v Gordon damages take their name from a NSW Court of Appeal decision. In that case, a woman suffered brain damage during a car accident. As a result, her ability to care for her children was impacted. The Court held that the woman was entitled to claim the value of her lost capacity to care for her children.
This decision allowed many plaintiffs to claim the cost of the care and assistance they were no longer able to provide to their dependants as a result of negligence. However, the availability of Sullivan v Gordon damages has since been ade the subject of statutory provisions under s15B of the Civil Liability Act 2002 (NSW).
How does s15B modify Sullivan v Gordon damages?
Under s15B of the Civil Liability Act, plaintiffs can claim lost capacity to provide domestic care to their:
- Spouse;
- De facto partner;
- Child, grandchild, sibling, uncle, aunt niece, nephew, parent or grandparent;
- Any other members of their household; and/or
- Unborn child.
However, there are additional criteria that plaintiffs need to satisfy in order to make a claim for the value of their lost capacity to provide care to their dependants.
Under the Civil Liability Act, plaintiffs also need to prove that:
- They provided services to their dependants before the negligence occurred;
- The dependants are not (or will not be) capable of performing the services themselves;
- That the plaintiff would have provided the services for at least 6 hours per week for 6 consecutive months; and
- There will be a need for the services to be provided, and this is reasonable in the circumstances.
While the Civil Liability Act provides further clarification about the circumstances in which plaintiffs can claim damages for their lost capacity to provide care for dependants, the Act excludes many plaintiffs from making a claim for Sullivan v Gordon damages. In particular, plaintiffs may be ineligible to make a claim under the Act if they would not have provided their dependants care for 6 hours a week and for 6 consecutive months. This threshold may be particularly difficult for parents with older and teenage children who provide care to their children for fewer than 6 hours a week.
It is important to remember that Sullivan v Gordon damages are only one head of damages that a plaintiff can potentially claim in a medical negligence matter. Even if a plaintiff is not able to satisfy the requirements under s15B of the Civil Liability Act, they may still be able to make a claim for their pain and suffering, past and future out-of-pocket expenses, past and future need for care and assistance, and past and future economic loss.
How we can help
Establishing that a plaintiff has lost the ability to care for their dependants involves obtaining evidence to substantiate the claim.
It is essential to consult with a solicitor with experience in medical negligence to obtain appropriate advice about making a medical negligence claim and establishing damages. To discuss your individual circumstances, phone us on 02 4050 0330.
DISCLAIMER
This article reflects the current law at the time of publication. It is intended for informational purposes only and does not constitute legal advice. The actual decisions in each case are summarised for general understanding. For specific legal guidance in relation to your situation, please consult with a qualified legal professional.