Although not related to medical treatment, Allard v Jones Lang Lasalle (Vic) Pty Ltd [2014] NSWCA 325 provides an appellate consideration of two commonly raised damages assessment issues.

In relation to the use of a ‘buffer’ award by the trial judge for future loss of earnings, the court confirmed the appropriateness of such an approach in circumstances where the Ms Allard had no recent history of paid employment and her employment prospects but for the accident were fraught with uncertainty.

In relation to the award of damages for future care on a gratuitous care basis rather than on a paid basis (with a difference in the hourly rate), the trial judge’s approach was confirmed as the evidence went no further than establishing that there was a remote, though not entirely fanciful, chance of the need for commercial domestic assistance in the future. Ms Allard did not discharge the onus of establishing when the need for commercial services would arise by reference to when her children would cease providing gratuitous services: [62]-[74]. The passage at [73] highlights the issue:

73     In the present case, in my view the evidence goes no further than establishing that there was a remote, though not entirely fanciful, chance of the need for commercial domestic assistance in the future. The remoteness of that chance is based upon the impossibility of determining with any degree of confidence whether or when the appellant’s children….would no longer be able or available to provide gratuitous assistance. To pick a future point in time when such assistance might cease and commercial assistance may be required would be nothing short of speculative. As the onus lies on the appellant to properly establish when the need for commercial services would arise, in my view that onus has not been discharged.

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