A further interlocutory judgment has been published in the matter of Bailey v Illawarra Shoalhaven Local Area Health District [2015] NSWSC 910.

The judgment arose from the late service of a report from a psychiatrist in support of a claim for past gratuitous care if a disabled child. At [4] the court observed:

This claim has been particularised in the second further amended statement of particulars filed in court … It is generally divided into two categories. The first relates to services provided by the plaintiff to her son. These are particularised and described in what appears to be an orthodox fashion and include the provision of physical assistance and the performance of practical tasks required in his care. The second relates to the provision of what is described variously as “emotional support, socialisation and companionship” or as “psychological and emotional care.”

The psychiatrist had been asked to comment on the significance of the importance of the relationship between the mother & her son; also whether the level of involvement provided by the mother was essential for her son’s care and his psycho-social and developmental well-being: [7].

The psychiatrist’s report was held inadmissible for various reasons, including:

  • The claim for the provision of emotional support by the mother is clearly limited to the emotional support provided coincidentally with the provision of other physical care needs. The claim for being present as a parent for the time taken to provide other physical care services for which a claim is also made is double counting: [10] – [11].
  • The claim for assistance by the mother is described as being “over and above normal parenting”, but emotional support, socialisation and companionship are the very things that parents provide in their capacity as parents: [13].
  • The report was not relevantly an expert opinion, but rather no more and no less than a statement of clearly hypothetical opinions based upon the assumed proposition that the mother’s presence and attention to her son was better for him, and therefore more beneficial to his overall progress and comfort, than if she had remained absent: [14].

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