I. INTRODUCTION

10.1 The accident-related needs of a person disabled in a transport accident may extend beyond the need for income replacement, medical care and early rehabilitation services. In the short-term, particularly in the case of a non-earner, the most urgent additional need is likely to be for the provision of household services to replace those previously provided by the injured person, either for himself or herself or for other household and family members. This need may continue in the longer term, as where the disabled person requires these replacement services to remain outside an institution, and to live independently within the community. This Chapter deals with this form of support service as well as attendant care, emergency family support and other services or assistance required by severely disabled people, such as home modifications and mobility allowances. The provision of these services is central to the alms of adequate compensation for the most seriously disabled accident victims, as well as being necessary to minimise family dislocation in the short-term.

II. HOUSEHOLD SERVICES

A. Introduction

10.2 People usually provide unpaid services for the benefit of themselves and other members of the household. If these services were not provided some at least would have to be purchased on the open market. If a person injured in a transport accident is no longer able to perform these services, the household suffers a loss. This was one aspect of the recently abolished action for loss of consortium, ¹ whereby a husband could sue, among other things, for his wife’s loss of ability to provide household services. ² These losses occur in cases of both short- and long-term disability.

B. Scope of Household Services

10.3 A large range of unpaid services may be the subject of loss, depending on the previous activities of the person. These could include ironing, washing, cooking, child-care, mowing lawns, performing routine household maintenance such as changing tap washers and mending fuses, and innumerable other chores. They could also include activities such as building extensions to a house on weekends, making clothes for the family, servicing the family car and constructing furniture for the house. To provide replacement services for all these services or activities would create great difficulties of assessment and impose substantial costs on the scheme. For instance, the New Zealand accident compensation scheme originally included a provision which allowed a member of a household to receive compensation “for any quantifiable loss of services” ³ suffered by that member, because of the death or injury of another member of the household. A decision of the New Zealand Court of Appeal in 1980 interpreted this section to cover a claim by a widow for the cost of home renovations which her deceased husband would have carried out had he not been killed in an accident. ⁴ This section was changed in the 1982 Act to restrict its meaning to any quantifiable loss of services of “a domestic or household nature” ⁵ which were previously provided by the injured or deceased person on a regular basis. Section 80 also allows the injured person to recover compensation

... for actual and reasonable expenses and proved losses necessarily and directly resulting from the injury or death ⁶

provided that it is not one of the excluded expenses, such as property damage, ⁷ loss of opportunity to make a profit ⁸ or an expense which is similar to others recoverable under other sections of the Act. ⁹ The Corporation’s Claims Manual excludes expenses caused by the inability to complete the building of a person’s home but states that

... the cost of closing in an area temporarily may be a valid claim as there is a distinction between essential preservation and asset improvement. ¹⁰

10.4 Compensable services should be those necessary for the maintenance and preservation of the household, but not those in the nature of hobbies, crafts or special improvement projects. Maintaining and preserving the household extends to keeping the physical environment tidy by cleaning, and caring for the occupants through washing, cooking and child-care. We acknowledge that the distinction we have drawn is difficult to justify on a restitution model of compensation. All household services have an economic value in the sense that they avoid the need to purchase services in the marketplace. But it is not feasible to attempt to replace all services previously rendered to the household by the disabled person. Household services should not necessarily be provided at a level sufficient to maintain the household at its pre-accident standard. For example, in the household of a meticulous homemaker, sometaskswillbeundertakenfarmorefrequentlyorintensivelythanisrequired for its maintenance and preservation. Similarly, replacement child-care services can hardly be expected to replace fully the services performed by a parent. Again we do not think it appropriate that such services should be provided where a disabled household member previously performed only occasional or minor household tasks, such as washing up dishes after the evening meal or removing the garbage. In these circumstances, it is reasonable to expect the household to use its own resources to fill the gap, without causing hardship to other family members. Accordingly, we recommend that a person:

(a) who suffers a disability (whether temporary or permanent) as the result of a transport accident;

(b) who, before the accident, performed substantial household services for himself or herself and/or his or her household family members; and

(c) whose capacity to perform household services has been significantly impaired by reason of the disability;

should be entitled to replacement household services, to the extent necessary for the maintenance and preservation of the household of which he or she is a member. This formulation would permit replacement household services to be provided to a person living alone who previously performed all necessary tasks himself or herself.

10.5 It is now necessary to consider the criteria that should determine the extent to which services are necessary for the maintenance and preservation of the household. The circumstances will clearly vary substantially among different households. For example, if an injured person has young children and is the primary care-provider within the family, the need for replacement household services, including child-care and other services, may be quite large. By contrast, a young person living with his or her parents and a number of siblings may have contributed much less to the household. Moreover, it may be reasonable to expect other household members to accept extra responsibilities during the period of disability without significant interference with their daily activities. In assessing the need for household services a number of factors should be taken into account by the Corporation. We recommend that in assessing the extent to which household services are necessary for the maintenance and preservation of the household the Corporation should have regard to:

(a) the household services provided by the disabled person before the accident and the extent to which he or she can provide such services after the accident;

(b) the number of household family members, their ages and need for household services;

(c) the household services that other household family members or other family members could reasonably be expected to provide after the accident; and

(d) any special factors affecting the need of the disabled person and other household family members for household services.

In determining what is reasonable for the other household or family members to provide after the accident, the Corporation should take into account:

(a) the household services provided by the other household family members or other family members before the accident;

(b) the need to avoid substantial disruption to the employment or daily lives of household family members; and

(c) other relevant circumstances. ¹¹

This recommendation specifically contemplates that the Corporation should take into account the contributions that other household family members or family members outside the household can reasonably be expected to make by providing services. While they should not be required to endure substantial disruption to their lives, it will often be feasible for them to fill, at least in part, the gap temporarily left by the disabled person without undue interruption to their way of life.

10.6 The criteria specified in paragraph 10.5 do not refer to the financial position of the household: that is, the ability of members to purchase the services required to maintain and preserve the household. In the short-term it is more important to ensure that emergency needs are met rapidly, than to attempt to assess the financial position of each household claiming assistance. It is frequently difficult to arrange services of this kind immediately after a traumatic event such as an injury or death in a transport accident, regardless of the household’s financial resources. However, in the case of longer-term disability, we think it right to take into account the household’s financial resources and ability to pay for any services they may require. A period of four weeks following the occurrence of an accident in which a service provider is disabled, would seem to be a reasonable period in which to allow a household to receive replacement household services, without account being taken of their financial resources. Thereafter these resources should be considered, including other forms of compensation provided to disabled persons or other household members under the Scheme. One consequence is that, for longer- term disability, non- earners (who would not be entitled to compensation for loss of earning capacity for 104 weeks) would be more likely to receive substantial compensation in the form of household services than earners previously in full-time employment who are being compensated for loss of earning capacity. The non-earner would have been more likely to provide extensive homemaker services before the disability, particularly if he or she was caring for children, and household services will be that person s main source of continuing compensation for a period of 104 weeks. We therefore recommend that in assessing the extent to which household services are to be provided after the expiration of four weeks from the date of the accident, the Corporation should have regard to the following additional criteria:

(a) the compensation and other benefits provided to the disabled person or other household family members arising out of the transport accident;

(b) the earnings and other income of the spouse of the disabled person (being a member of the household); and

(c) the resources, financial or otherwise, available to household family members to meet the need for household services.

In practice, this would probably mean that the vast majority of people would no longer be eligible for the provision of household services after a two year period. This is because at that point, incapacitated non-earners would commence receiving periodic compensation for loss of earning capacity. There would, of course, be a small minority of cases, where the need for such services was substantial and the resources to meet the need inadequate. In such cases, provision would continue while the need continued. The term “spouse” in the above recommendation includes de facto partner. (For more detailed explanation see paragraph 12.21).

C. Provision of Services

10.7 The Corporation should ensure that replacement household services are:

• provided promptly; and
• available for as long as is reasonably necessary, in accordance with the criteria discussed earlier.

This requires an efficient decentralised method of service provision. In New South Wales, the Home Care Service of New South Wales provides home services throughout the State. The Service has recently been brought under the jurisdiction of the Department of Youth and Community Services pursuant to the Community Welfare Act, 1982. ¹² Its operations fit well within the framework of the Transport Accidents Scheme.

The Home Care Service aims to provide a flexible range of non- medical services to enable people to function in their own homes. These include:

Household Tasks: washing, ironing, shopping, cleaning, cooking.

Personal Care: feeding, bathing, dressing, grooming, assisting with mobility.

Relief Care: is generally combined with at least some of the above tasks and may also involve assistance with exercise and therapy programmes.

Family Worker is a more extensive involvement with the family, assisting with the development of skills such as household management and child care.

Handyman Service: includes basic maintenance and household repairs and essential garden maintenance.

Live-in Housekeepers are available for a maximum of eight weeks.

It is the aim of the Service that all of the above types of assistance should be available from all Branches. Due to financial restrictions, however, this is not currently the case. ¹³

Resources could be made available by the Corporation to enable the Service to provide assistance to accident victims who are entitled to benefits of this kind. If the Home Care Service cannot meet the need, the Corporation will need to rely on commercial agencies or engage staff, either on a casual or permanent basis. We recommend that, in general, replacement of household services should be provided through existing government or private agencies, but the cost should be met by the Scheme.

10.8 In some circumstances, it may be appropriate for a member of the family or household to provide the services to which the disabled person is entitled under the Scheme. A member of the household, for example, may have the time required to do so and it may be both acceptable to the disabled person and convenient for the Corporation to enter into an appropriate arrangement with the household member. Remuneration would generally be equivalent to that payable to other service providers (although not necessarily at the level charged by those operating in the private sector). A household member may be willing to forego remunerative employment or other activities outside the home in order to undertake duties as a service provider, yet it may be quite unreasonable to expect him or her to perform those duties without reward. But the Corporation should not be compelled to engage a member of the household. We recommend that the Corporation should have power when requested and where it considers it appropriate to do so, to engage a member of the disabled person’s household or family to provide replacement household services.

10.9 The Home Care Service of New South Wales has developed expertise in assessing an individual’s or household’s need for household services. In many cases, it may be appropriate for the Home Care Service to carry out the assessment of need on behalf of the Corporation, using its own knowledge and the Corporation’s guidelines. This would, of course, be subject to the Corporation’s approval of assessments in individual cases. In practice it will be necessary to provide household services immediately after the minimum preliminary assessment so that the services are made available when the need is most acute. The Corporation’s rehabilitation officers and the social work staff in hospitals should be able to advise families of their rights in this regard. The Corporation should also publicise the entitlements so that transport accident victims and their families are aware of the benefits during the period of most acute distress and dislocation following an accident.

D. Possible Limits

10.10 Consideration was given to whether the provision of household services should be subject to monetary or hourly limits. We have decided against this approach because the recommended criteria impose reasonable limits on the services that can be claimed and on the cost of providing these services. Nonetheless we are conscious that this is a novel area of compensation and that we may not have anticipated all difficulties that may arise in practice. Accordingly, the Corporation and the Policy Review Committee (Chapter 15) should monitor the extent to which household services are claimed and the cost of meeting claims. If necessary, proposals for change to the legislation can be formulated in the light of the early experience with the Scheme.

III. ATTENDANT CARE

A. Introduction

10.11 Disabled people should, if they wish, be able to live in the community rather than in an institution. In addition to assistance with housework, seriously disabled people need assistance with personal care, such as dressing, bathing, eating and mobility. The Handicapped Persons Survey 1981 showed that while a relatively large proportion of handicapped people living in households were handicapped in relation to self-care (38.9 percent), ¹⁴ only just over 1 per cent had assistance to dress, wash or feed themselves ¹⁵ and another 0.5 per cent had an unmet need in that area. ¹⁶ The percentage of handicapped people living in institutions who were handicapped in relation to self-care predictably was much higher (83.6 per cent) ¹⁷ and the vast majority of these people were severely handicapped in relation to self-care. ¹⁸ To enable a disabled person to live in his or her own home, attendant care services are often required.

10.12 The Australian Council for Rehabilitation of Disabled has stated that the basic objective of attendant care is to provide disabled people with the opportunity to achieve the maximum independence, personal fulfilment and community participation in their lives by:

• making it possible for them to employ an attendant to assist them with essential personal care needs in their own home, group homes etc.;
• relieving strain on their family (including spouses, parents, siblings, aunts and uncles) who are traditionally expected to assume the role of attendant in addition to their other roles and responsibilities;
• avoiding unnecessary admission to hospital or other forms of institution; and
• maintaining good quality long-term care for the disabled person who does not wish to live within an institutional setting and has no medical need to do so. ¹⁹

These ends are clearly desirable in themselves and are often cost effective in the sense that they encourage rehabilitation and avoid the costs of institutional care. While the costs of attendant care (although not generally requiring special skills) are significant, especially over a lifetime, the proportion of disabled transport accident victims requiring such care is small. Thus the provision of attendant care services should be an important feature of any compensation scheme.

10.13 The right to attendant care is consistent with the aim of rehabilitation and restitution through the process of normalisation.

The case for the introduction of an attendant care allowance is based on the strongly held belief that severely physically disabled adults have as much right as other adults in the community to take responsibility for the management and direction of their own lives. However, at the present time, in most cases, this is not possible. Their physical dependence on another person for assistance with personal care needs is translated into social dependence and they are forced through lack of alternatives to accept the role of dependent patient either in an institution or within the family setting. ²⁰

Moreover, the provision of attendant care services is by no means a novel concept- either as a service for the disabled or as an aspect of compensation Attendant care programs operate in other countries,²¹ and a pilot attendant care program has been undertaken by the Commonwealth Government in conjunction with the Home Care Service of New South Wales for severely disabled people in the Sydney metropolitan area.²² Very severely disabled veterans are also entitled to receive an attendant allowance for service-related disabilities. The common law awards damages for the costs of paid attendant care,²³ and also the notional costs of such care where it is provided gratuitously by relatives or friends of the disabled person (paragraphs 10.23-10.24). The New Zealand Accident Compensation Act 1982 specifically provides for the Corporation there to pay for attendant care

... where the incapacity is so grave that the person is incapable of caring for himself and requires, as a matter of necessity, constant personal attention. ²⁴

10.14 We recommend that a person who:

(a) suffers a disability (whether temporary or permanent) as the result of a transport accident; and

(b) is thereby unable to provide adequately for his or her personal care;

should be entitled to receive attendant care services from the Corporation. “Attendant care services” means the services (other than medical or nursing care) required to provide for the essential regular personal care of the disabled person.

B. Assessment of Need

10.15 The assessment of need for attendant care in individual cases involves a number of factors and the assessment is likely to vary over the period of the disability. One estimate puts the average requirement for attendant care of a seriously disabled person at about four hours a day, seven days a week. ²⁵ Of course, there may be exceptional cases which require longer periods of attendant care. Examples include a seriously disabled person who is unable to be left unattended in case he or she chokes, or a bedridden person who is unable to move at all and requires turning to avoid bedsores. In some cases the intensive attention required may leave no alternative but for the person to live in an institution. The evaluation of these matters will often best be made by the rehabilitation team responsible for the care of the disabled person, although their views should not necessarily be decisive. Another relevant factor, which should be used by the Corporation in developing policy guidelines, would clearly be standards developed by governments in Australia for the purposes of welfare programs or other schemes. The need for attendant care is not confined to those disabled people who are housebound. It is quite common for the permanently disabled to rejoin the workforce and it is consistent with the objectives of rehabilitation to encourage them to do so. But such people, especially the seriously disabled, may still need substantial attendant care. In one example from our case studies, Mr P who had become quadriplegic as the result of a car accident, was employed full-time as a telephonist, but still relied on his wife for attendant care. ²⁶

10.16 We recommend that in assessing the need for attendant care services the Corporation should have regard to:

(a) the nature of the person’s disability and its effect on that person’s ability to provide for his or her personal care;

(b) the medical and nursing services received by the disabled person, to the extent they provide for his or her personal care;

(c) the wishes of the disabled person, specifically his or her desire to five outside an institutional environment, to the extent that it is reasonable to attempt to meet these wishes;

(d) the extent to which attendant services are required to enable the disabled person to undertake or continue employment;

(e) any assessment made by a rehabilitation assessment team at the request of the Corporation; and

(f) the standards developed or applied by governments or public agencies in Australia in determining the needs of disabled people for attendant care services.

A distinction should be drawn between the attendant care needs of a disabled person and his or her need for medical and nursing services and replacement household services. However, the availability of medical and nursing services (which involve specialist skills) may have a considerable bearing on the need for attendant care. ²⁷

10.17 As with house hold services it will sometimes be feasible for necessary attendant care services to be provided by another member of the family or household without undue inconvenience to that person. For example, if the disabled person has difficulty combing his or her hair because of a limitation in shoulder movement, but has no other difficulties in relation to performing personal care tasks, it would be reasonable to expect another household member to assist with this task. We recommend that the Corporation should take into account the attendant care services that other household family members could reasonably be expected to provide to the disabled person. In determining what is reasonable the Corporation should take into account:

(a) attendant care services (if any) provided by the other household family members before the accident;

(b) the need to avoid substantial disruption to the employment or daily lives of those household family members; and

(c) other relevant circumstances.

10.18 In the short term a disabled person’s need for attendant care services will vary as his or her medical condition or ability to do various activities improves through rehabilitation. However, once the condition has stabilised and maximum rehabilitation is achieved the review of the assessment of need should be minimised to avoid undue interference in the person’s life. It should take place no more than once a year, unless there are exceptional circumstances or the disabled person seeks review more frequently.

C. Provision of Services

10.19 Attendant care services could be provided in one of two ways:

• an attendant allowance; or
• the provision of an attendant to perform the services.

The main advantage of providing an allowance is that the disabled person will have greater freedom in choosing her or his attendant and in dispensing with the services of someone who turns out to be unsatisfactory. The main advantage of service provision is that the disabled person is guaranteed the necessary high quality care. In addition, the Corporation avoids the risk of paying out money for attendant care, only to find that it has not been used for the purpose. The major disadvantage is that the disabled person does not have the same freedom of choice as with an allowance.

10.20 To a large extent, it is possible to accommodate these conflicting objectives. The Corporation, either through a body such as Home Care or by its own arrangements could employ providers of attendant care on a casual basis. The disabled client could interview a pool of attendants and choose the person who seems most appropriate for his or her personal needs. The attendants would be directly answerable to the client and, if their performance was unsatisfactory, the client could terminate their services. In this event a temporary relief person should be available to assist the person until a more appropriate person could be found. This proposal should minimise the adverse effects of the service provision model from the point of view of the disabled person, without introducing the disadvantages of the allowance model.

10.21 It will also be necessary for the Corporation to offer relief or emergency services and perhaps weekend services. Special holiday arrangements may be required on occasions when a disabled person or family members need a break. To deal with these and other situations, guidelines should be established by the Corporation concerning the criteria governing the provision of attendant care. A committee comprised of disabled consumers and service providers should be created to monitor the adequacy and quality of services and to report to the Corporation and to the Policy Review Committee.

10.22 In accordance with the approach we have explained (paragraph 10.7) we recommend that, in general, attendant care services should be provided through existing government or private agencies, but that the cost should be met by the Scheme. If however, these agencies are unable to meet the needs of disabled transport accident victims, the Corporation should engage its own personnel or enter agreements with private agencies. This should only be done, however, if services such as the Home Care Service of New South Wales are unable to fulfil the Corporation’s obligations, taking account of the resources to be provided by the Corporation.

D. Family Members

10.23 It is common for attendant care services to be provided to disabled people by family members or friends without financial reward. The common law has recently been in a state of flux concerning the award of damages in respect of gratuitous services of this kind. Initially the courts declined to award damages for these services, ²⁸ but a different view was taken in a series of English decisions in the 1970s. ²⁹ The issue came before the High Court of Australia in the landmark case of Griffiths v. Kerkemeyer. ³⁰ In this case, a young quadriplegic person was provided with nursing and other services by his fiancee and family and this situation appeared likely to continue indefinitely. The court held that the right to compensation was based on the need for these services, whether they were paid for or had been provided gratuitously. The size of the loss was to be measured by reference to the market value of the services rendered to the plaintiff. This measure of loss was to apply regardless of whether services were actually provided to the plaintiff or whether he or she paid the service provider. Chief Justice Gibbs noted that the matter should

... be viewed in two stages. First, is it reasonably necessary to provide the services, and would it be reasonably necessary to do so at a cost? If so, the fulfilment of the need is likely to be productive of financial loss. Next is the character of the benefit which the plaintiff receives by the gratuitous provision of the services such that it ought to be brought into account in relief of the wrongdoer? If not, the damages are recoverable. ³¹

10.24 The decision in Griffiths v. Kerkemeyer led to a substantial increase in damages awards in serious cases, with consequent financial implications for the compulsory third-party insurance system. According to the submission of the GIO, an analysis of some large awards showed that the “gratuitous services” element amounted to about 30 per cent of the awards. ³² The courts, in tacit acknowledgement of the financial consequences of Griffiths v. Kerkemeyer, have limited the scope of the decision. For example, damages have not been awarded where the services are such as would normally be provided by family members to each other. ³³ The courts have also tended to apply more stringently the overriding qualification that the services in respect of which the claim is made should be reasonably necessary. ³⁴ The most recent limitations in New South Wales have been legislative. The Motor Vehicles (Third Party Insurance) Amendment Act, 1984, imposes limits on the compensation payable in respect of gratuitous attendant care or domestic services provided to a plaintiff, ³⁵ up to a maximum of a specified index of average weekly earnings.

10.25 While family members often make an invaluable contribution in providing attendant care services, it is important to recognise that fulfilling the dual roles of attendant and family member can create tensions and difficulties for both the attendant and the disabled person.

At best it is difficult to differentiate between the roles of lover and attendant, if they are embodied in the same person. Both the disabled person and the partner may expect more than if a separate paid attendant does the physical care. Dealing with emotions like anger can be confusing - it is risky to express anger to the other, when he/she will have to provide intimate aid in a moment When is he/she a partner and when an attendant? ³⁶

There is therefore much to be said for the view that family members should not bear the primary responsibility, whether on a paid or unpaid basis, for providing attendant care services, other than performing relatively minor tasks. When the option of a paid attendant is available, the disabled person and family members may well choose the paid attendant in order to minimise the strain caused to family members and to provide the disabled person with a sense of independence.

10.26 Despite the potential difficulties, both family members and the disabled person may prefer the services to be provided by a family member in some circumstances. We think that this option should be available, although the Corporation should not be bound to accept such a solution simply because a request is made. We recommend that the Corporation should have power when requested and where it is appropriate to do so, to engage a member of the disabled person’s family to provide attendant care services. The person so engaged should be entitled to the equivalent payment provided to non- family providers of attendant care, for the number of hours assessed as necessary. The money would be paid directly to the service provider.

IV. EMERGENCY FAMILY SUPPORT

10.27 When a person is injured in a transport accident, it may be necessary for that person’s uninjured spouse, parent or child to attend to the injured person’s needs at home or in hospital. For example, a husband may be required to attend hospital when his wife is in a critical medical condition or a parent may be required to be with a severely injured child who is in hospital or at home. In these circumstances, the attendant may incur expense, such as travel or accommodation costs, or losses in the form of earnings or reduced ability to perform household tasks. The common law has taken an ambivalent attitude to these matters, generally denying a direct remedy to the spouse or parent, although sometimes including in the general damages of the injured person a component reflecting the expenses or financial losses sustained by the relatives. ³⁷ Some compensation schemes recognise the need for emergency family support to minimise the financial difficulties which often arise in the immediate aftermath of an accident. In New Zealand, for example, emergency support is available where a person is absent from work because his or her performance of attendant or household duties is necessary as a result of the other household member’s personal injury by accident. The New Zealand Accident Compensation Corporation will pay up to one week’s wages, with a discretion in special circumstances to extend the payments for three more weeks, if it is not possible to make any alternative arrangements. ³⁸

10.28 The Scheme should provide assistance of this kind, although caution should be exercised in extending benefits in such a novel area. Initially, two categories of emergency family support should be available. First, where the parent, spouse (including de facto partner - see 12.21) or child of an injured person loses income because of the need to attend that person in hospital or at home, the Scheme should compensate for the loss. The compensation should be the same as that which would have been provided had the parent, spouse or child been incapacitated by injury. Thus, no compensation would be payable for the first weeks loss of earnings and the usual ceiling on compensation would apply. The compensation should be payable for a maximum of four weeks, principally because it is designed to ease the immediate emergency created by the accident. Accordingly, we recommend that where it is necessary for the spouse, parent or child of a person injured in a transport accident to attend that person continuously, whether in hospital or elsewhere, the Corporation should compensate the spouse, parent or child for the loss of earnings caused by his or her attendance. Compensation should be paid as if the spouse, parent or child had been incapacitated by an injury sustained in a transport accident but should be payable for a maximum period of four weeks.

10.29 The Corporation should also meet the costs of travel and accommodation within Australia necessarily incurred by a parent, spouse or child of an injured person in providing care or support for that person during the period of four weeks from the date of the accident. If, for example, the parent of a seriously injured child lives in the country and has to travel to a Sydney hospital or has to travel interstate to provide comfort for the child during the period immediately after the accident, the Scheme should meet the travel costs. The Corporation should have power in exceptional cases to extend the period during which travel and accommodation expenses are available, when the continuous presence of the relative is required for the recovery or well-being of the injured person. Therefore, we recommend that the Corporation should reimburse expenses necessarily incurred in respect of travel and accommodation within Australia by the spouse, parent or child of a person injured in a transport accident, for the purpose of providing care and attention to that person. The Corporation should meet expenses incurred during a period of four weeks from the date of the accident, but should have power in exceptional cases to extend that period where the continuous presence of the spouse, parent or child is necessary for the recovery or well-being of the injured person.

10.30 There is a strong case for extending emergency family support to a person who is prevented from providing household services to the family because of the need to care for or attend the injured person. In principle, there is little reason to differentiate between a loss in the form of reduced earnings and in the form of a reduced capacity to perform household services. However, we are venturing into a new field and caution should be exercised. If the experience with replacement household services (paragraphs 10.2-10.10) suggests that the benefit can readily be extended to people required to care for transport accident victims, we think the extension should be made.

V. ACCOMMODATION

A. Introduction

10.31 The need for a place to live is universal. In New South Wales, expectations of home ownership are high and there is a clear preference for free-standing houses rather than high rise accommodation. This is confirmed by the 1981 Census data, which showed that approximately 75 per cent of households in private dwellings in New South Wales occupied free-standing houses, ³⁹ while a further 20 per cent lived in either semi-detached houses, terrace houses, or other medium density forms of housing. ⁴⁰ Of all households in private dwellings, 67 per cent were either purchasing the dwelling or already owned it. ⁴¹

10.32 The aspirations of disabled people are not very different from those of the general population. This is supported in some of our submissions. One man who had been rendered quadriplegic in a motor vehicle accident in 1975 and received a common law settlement some seven years later said:

The thing that has made the biggest difference in my life would be the fact that I am living in my own home. I put 10% deposit down and my wife and I are paying it off in monthly instalments. Possibly, for the recipients of no-fault compensation, a certain figure could be awarded, enough to put a deposit on a house, and a sum could be paid periodically, enough to pay off same house and pay the bills. ⁴²

In a survey conducted for the Law Society of New South Wales of members of the Paraplegic and Quadriplegic Association of New South Wales, the question was asked: “Would you rather live in a nursing home or in your own home?” ⁴³ Ninety-five per cent of respondents preferred their own home, while only I per cent favoured a nursing home. ⁴⁴

10.33 A disabled person does have additional needs in relation to accommodation For example, a person who is confined to a wheelchair may need ramps to gain entry to his or her house, or widened doorways to move around in the house. Specific rooms, such as toilets, may need to be enlarged to allow wheelchair access. Bathrooms may need rails to allow the person to lift himself or herself. If the person lives in a two-storey dwelling, he or she may require special access to the other floor, in order to avoid the need to move to more suitable accommodation. A disabled person may need to have a specially designed kitchen or extra accommodation may be required for a live-in attendant care provider. Air-conditioning is normally required by a person who has become quadriplegic.

10.34 While this Report is limited to people disabled in transport accidents, the issue of accommodation raises many questions which apply to all disabled people. There is now a growing commitment to the principles of equal opportunity for the disabled and “normalisation”. These principles dictate that the Scheme should allow the disabled person, wherever possible, the same opportunity to live in his or her own home in the community as is available to the non-disabled person.

10.35 The range of options include:

• one-family homes;
• boarding houses;
• group homes;
• hostels;
• nursing homes; and
• hospitals. ⁴⁵

The choice open to a disabled person will depend on factors such as:

• the person’s degree of disability;
• the need for and availability of support services;
• the cost of the preferred options; and
• the family situation of the disabled person.

10.36 The number of people disabled in transport accidents who may require assistance in finding or purchasing adequate accommodation in anyone year is not clear. However, from a survey of handicapped persons conducted by the Australian Bureau of Statistics in 1981, some 90.9 per cent of all handicapped people in New South Wales were living in private households while the remaining 9.1 per cent were resident in institutions. ⁴⁶ The vast majority of handicapped people living in institutions were severely disabled but even among the severely handicapped, only 19.1 per cent lived in institutions. ⁴⁷ Some 66,800 handicapped people (or 16 per cent of all handicapped people in New South Wales) suffered a primary disabling condition caused by an accident. ⁴⁸ Of these, 2,900 (4.3 per cent) lived in institutions, ⁴⁹ with over one-fifth (22.1 per cent) of those injured in road accidents. Thirty-seven per cent of those handicapped victims who lived in households in New South Wales were injured in road accidents. ⁵⁰ Even though it would be difficult to assess the precise extent of the need for accommodation or home modifications for transport accident victims, these figures indicate that the need certainly exists.

B. Home Ownership

10.37 Given the high level of home ownership in Australia, it is reasonable to assume that most disabled transport accident victims would prefer to own their own homes. Certainly our surveys indicate that it is a very common practice for accident victims to use their lump sum compensation for the purchase of a home, if one is not already owned. Some submissions stressed the need for accident victims to receive compensation in the form of a lump sum sufficiently large to enable victims to purchase their own homes. ⁵¹ In the next Chapter we make recommendations for compensation for permanent physical disability which would provide many seriously disabled transport victims with a sufficiently large sum to enable them to purchase a dwelling of average price in, say, the metropolitan area. However, depending on the degree of disability and the cost of the accommodation sought, the amount may not always be adequate to purchase a house outright. In such situations the question arises whether the Corporation should provide funds, in addition to other forms of compensation specifically to enable an accident victim to purchase a house if he or she does not already own one.

10.38 It is relevant that under the common law, damages are not generally awarded for the purchase of a home but only for modifications required by reason of the plaintiff s disability. ⁵² In practice, however, the plaintiff often uses part of the award to purchase a house. This is by no means inappropriate, even if no component of the damages award is designed specifically to permit acquisition of a home. Part of the award usually represents compensation for loss of earning capacity. Since the plaintiff s future earnings would presumably have been used to finance the purchase of a home, allocation of part of the damages award for the same purpose enables the plaintiff to do what he or she could have done had the accident not occurred.

10.39 In principle, a disabled person should have the same opportunities to acquire a home as those available to an able-bodied person. The capacity to purchase a house is related to the intending purchases s earnings and resources, and his or her housing needs. On our proposals, a person disabled in a transport accident would be compensated for accommodation needs attributable to the disability, such as home modifications. In addition, compensation would be paid for loss of earning capacity including, in cases of long-term disability, loss of potential earning capacity. The result, even leaving aside any lump sum paid in respect of permanent physical disability, is that the disabled person should have a similar financial capacity to purchase a home as he or she would have had if the accident had not occurred. There is no reason, for example, why periodic compensation for loss of earning capacity cannot be used to pay off a mortgage loan. If the disabled person is a low income earner the same opportunities would be available for government subsidies or access to public housing as for other people in low incomes. In practice the lump sum payable for permanent disability will assist materially in the purchase of a home, should the disabled person choose to allocate the sum in this way.

10.40 We recognise that there may be some accident victims who, despite compensation for permanent disability and separate compensation for the non-optional costs flowing from the disability, find that their periodic compensation for loss of earning capacity is insufficient to sustain mortgage payments required to purchase a home and to maintain that home. This is unlikely to be a frequent occurrence, but could be the case where a non-earner or low income earner has sustained only a moderate disability (for which modest lump sum compensation is payable), but has no residual earning capacity. In these circumstances we do not think that the Corporation should make financial grants to enable the transport accident victim to purchase a home. However, we recommend that the Corporation should have power to make loans to disabled transport accident victims who have or would have difficulty borrowing money from conventional sources, for the purpose of financing the purchase of a home. Loans of this kind could be made for extended periods and at rates comparable to those charged by public authorities financing home purchases by low income earners. Sometimes the most appropriate solution to the problem of accommodation might be the provision of public housing, whether on the basis of purchase or rental. While transport accident victims should not be entitled to priority over other applicants for public housing, we recommend that the Corporation should have power to negotiate arrangements with the Housing Commission of New South Wales and other public authorities for the provision of housing to disabled transport accident victims.

C. Home Modifications

10.41 Common law damages, in the case of serious disability, include the estimated or actual cost of modifications to the residence of the plaintiff. ⁵³ This generally includes the building of ramps and widening of doorways, the redesigning of bathrooms and living areas, as well as changes to household items such as door knobs, tap handles and the like. ⁵⁴ In some cases damages may be awarded in respect of more substantial modifications, such as air-conditioning of living areas. Damages are not necessarily confined to modifications to a home owned by the plaintiff. The cost of modifications to a home owned by a third party may sometimes be included in the damages. ⁵⁵

10.42 A person who enters a Commonwealth Rehabilitation Service program, but who cannot claim common law damages, may be supplied with certain home modifications or aids. These include:

• the provision of or the widening of doorways to provide access;
• the provision of access ramps;
• the relocation of toilets, baths, showers; and the installation of suitable weight-bearing handrails, grips and grab rails;
• adjustable toilet seats, bath seats etc.;
• lever taps;
• shower hose;
• thermostatic control units for water supply;
• modifications to working area in the kitchen, laundry, etc.;
• dressing aids;
• pneumatic hoists; [and]
• alterations to the height of electrical switches, power points etc. ⁵⁶

The scope of home modifications allowed by the Service does not envisage large capital works or funds for home acquisition. ⁵⁷ For example, a disabled person may require wider doorways, different washing and toilet facilities and new access arrangements. If the person makes these modifications to an existing home, the service will usually meet the cost in full. However, if the person decides to build a new extension incorporating these design features, the Service is likely to meet the same alteration costs, but no more.

10.43 In the New Zealand accident compensation scheme, detailed guidelines relating to home modifications have been devised. The Rehabilitation Manual sets out the principles which cover housing alterations. ⁵⁸

The Corporation will provide housing alterations which are necessary and reasonable, subject to relevant criteria. These include the persons disability, and consequent limitations, the wishes of the person in relation to location, the inconvenience to other household members, the intended period of residence, any structural or location problems, the extent and cost of the modifications, especially in relation to the value of the house, any alternatives available and also any other compensation payable. ⁵⁹

The Corporation allows both major and minor modifications to premises owned by or rented to the disabled person; but in the latter case, only where the lessee has a long-term lease and the lessor consents to the modification

10.44 The provision of necessary home modifications is critical if the aims of the Transport Accidents Scheme regarding long-term disabled transport accident victims are to be realised. Accordingly, we recommend that a person who has suffered long-term physical disability, of a kind which severely impairs his or her mobility or ability to live independently within a home or residence, should be entitled to the reasonable cost of necessary modifications to his or her home or residence. In determining whether modifications are necessary the Corporation should take into account whether they are required to enable the disabled person to:

(a) gain access to;

(b) enjoy reasonable freedom of movement within; or

(c) live independently within the home or residence.

In some cases, the difficulties of providing suitable modifications may lead the Corporation to suggest that the disabled transport accident victim should move to another home. Where this occurs, the Corporation should assist not only with the acquisition and modification of the new accommodation but also with the costs of relocation.

10.45 Disabled people, like able-bodied people, are likely to change their place of residence from time to time, for domestic and other reasons. Care should be taken not to expend substantial amounts on home modifications only to find that the disabled person moves to new accommodation within a short period. In general, we recommend that the cost of modifications should be met only in relation to a home or residence in which the disabled person intends to live for a substantial period. For example, where a disabled person is renting premises on a short-term lease, it would seem inappropriate to spend significant amounts of money on modifications, even if the approval of the landlord were forthcoming. Such people should be encouraged either to purchase premises or to enter a long-term lease. In the second case, a landlord may be more willing to allow the modifications to take place if the Corporation guaranteed performance of the tenant’s obligations under the lease. The Corporation should have such a power. While it is important that a disabled person intend to live for a substantial period in premises to be modified, this does not mean that the Corporation should meet the cost of modifications only to premises owned or rented by the disabled person. For example, if a young child is seriously disabled in a transport accident, it is obviously appropriate that the parents’ home should be modified to meet the needs of the child. Thus, we recommend that it should not be a condition of the Corporation meeting the cost of modifications that the disabled person is the owner or tenant of the premises.

10.46 The powers and responsibilities of the Corporation must take account of the likelihood that disabled people, particularly if they are relatively young at the time of the accident may wish to change their accommodation on one or more occasions. We do not think it feasible to do other than recommend that the Corporation should have power, in special circumstances, to meet the reasonable cost of necessary modifications to the home or residence of a disabled person on a second or subsequent occasion and to express the view that this power should be exercised sympathetically. The range of possible circumstances is so great that detailed rules cannot be laid down in legislation, although the Corporation’s published guidelines will need to address the issue. Circumstances that would be relevant to a determination include:

• the need to move to another area for work or other rehabilitation purposes;
• the need or desire to leave a parental home to become more independent;
• the alteration of domestic circumstances brought about by marriage breakdown death increasing family size or some other event; and
• a change in the person’s physical condition.

10.47 In some cases, a disabled person or his or her family may wish to carry out alterations that are more extensive than strictly necessary, having regard to the victim’s disability. Alternatively, the person may wish to make alterations which while necessary, add substantially to the capital value of the house. The New Zealand Accident Corporation uses various methods of financing home alterations some of which are relevant to these kinds of cases. Minor modifications are usually financed by outright grants; major alterations (costing in excess of $5,000) are secured by registered mortgage. The balance due under the mortgage is generally reduced by equal annual sums for the term of the mortgage, without the disabled person being required to pay instalments. However, where the house is sold, the mortgage balance may become payable from the proceeds of the sale, although the Corporation has power to write off the debt. In some circumstances the Corporation contributes to the cost of alterations, rather than meeting them in full.

There may be occasions where the alterations proposed by injured persons or their families exceed what the Corporation considers to be necessary (eg. alterations, or renovations which may be desirable but not essential for the injured person’s well-being). In these circumstances it maybe appropriate to make a contribution towards the total cost equal to the amount the Corporation would have paid for the necessary alterations. Rehabilitation officers should recognise this and be flexible in their approach. ⁶⁰

10.48 The Corporation should contribute only that proportion of the cost of desired alterations which are necessary to overcome problems associated with the disability. We recommend that, where the Corporation meets the cost of necessary modifications which add substantially to the value of the home or residence (whether or not owned by the disabled person), it should have power to impose a condition requiring repayment of the increase in the value on the sale of the premises or on the death of the disabled person. The Corporation should also have power to waive any such requirement. The Corporation might exercise the power of waiver, for example, where the disabled person uses the increased capital value, arising from the first modifications, to pay for another modified house, thereby avoiding at least some of the cost of a second set of modifications. In such a case, the Corporation may also agree to pay the additional cost of any further necessary modifications.

10.49 The Corporation should use existing home modification services wherever possible. This could be through the Commonwealth Rehabilitation Service, the State Housing Commission or through other agencies, private or public, capable of supplying the appropriate services. The Corporation, in conjunction with the disabled person and his or her family, should arrange for the necessary work to be undertaken However, in some cases (including those outlined in paragraphs 10.47-10.48), direct grants will be appropriate.

D. Institutional Accommodation

10.50 The disabled person’s choice of accommodation may be limited in practice by the degree of his or her disability and consequent need for support services. For many disabled people, the unavailability or high cost of support services, such as attendant, domiciliary or nursing care, prevents them living in a household and forces them into institutions. We have provided for support services to allow disabled transport accident victims to live as independently as possible within the community. Nonetheless, there will be a continuing need for institutional care for the most seriously disabled. This need will arise because some disabled people will not be able to live independently in the community while others will prefer the controlled environment of an institution We recommend that the Corporation should meet the reasonable ⁶¹ costs of a disabled person who is required, by reason of his or her disability, to live in an institution.

10.51 This recommendation raises a specific problem in that the cost of institutional accommodation ordinarily includes a component for board and lodging. Since a severely disabled person living in an institution almost invariably will be entitled to compensation for loss of earning capacity, there may be double compensation in respect of that person’s need for food and accommodation. The common law has faced the same question. In the High Court decision of Sharman v. Evans, the following rule was stated:

Both principle and authority ... establish that where, as here, there is, included in the award of damages for future nursing and medical care the plaintiff s entire cost of future board and lodging, there will be “overcompensation” if damages for loss of earning capacity are awarded in full without regard for the fact that the plaintiff is already to receive as compensation the cost of her future board and lodging, a cost which but for her injuries she would otherwise have to meet out of future earnings ... it would better accord with principle if the savings in board and lodging could be isolated from, and excluded from the damages to be awarded in respect of hospital expenses. ⁶²

We consider that the common law’s response to this problem is appropriate.

10.52 The Transport Accidents Scheme will have the advantage that the institutional cost component will increase appropriately with rising costs, because the payments are made periodically Rather than deducting an amount from the periodic earnings-related compensation payable to an individual, we recommend that the Corporation should prescribe a modest amount to represent the costs of the “board and lodging” element of institutional accommodation. This sum should be deducted from the amounts paid to the institution in respect of care and accommodation, and the disabled person should pay an equivalent amount to the institution from his or her compensation for loss of earning capacity. Special arrangements may be required in some cases to reduce the prescribed amount, because compensation for loss of earning capacity is relatively low. Guidelines will need to be developed by the Corporation on this issue and these will need to take account of arrangements in force from time to time in the health care system generally.

10.53 We also recommend that the Corporation should have power to establish hostels for seriously disabled people and to contribute to the cost of new hostels. This would help meet the needs of the most seriously disabled transport accident victims for accommodation of this kind. Such hostels could operate as halfway houses, to ease the transition for disabled transport accident victims who wish to return to their own accommodation, or as long-term accommodation for those in need of relatively intensive care or supervision.

VI. MOBILITY

A. Introduction

10.54 Submissions and comments to us stressed the importance of mobility to disabled people. For example, a submission from a disabled person explained that mobility is essential for independence and stated the priorities as:

(a) a car for optimal independence; and

(b) wheelchairs-two(2)-one manual wheelchair for everyday use and one motorised wheelchair for long distances. ⁶³

This section examines ways in which the Scheme could minimise the effects of limited mobility on people disabled in transport accidents.

10.55 The Handicapped Persons Survey conducted by the Australian Bureau of Statistics, showed that more people suffered handicap in relation to mobility than many other area. This was so whether the person lived in an institution or in a household. ⁶⁴ A person was defined as being severely handicapped in the area of mobility if he or she had

... difficulties in using public transport, moving around a person’s own home, moving around unfamiliar places, walking 200 metres, walking up and down stairs; ⁶⁵

and required help or supervision to perform one or more of the activities, or could not perform one or more of the activities. Using this definition, 35.6 per cent of all handicapped people were severely handicapped in the area of mobility. ⁶⁶ Of people handicapped for five years or more who live in households, (a total of 1,114,400 people), 18.3 per cent or 203,400 were prevented by their condition from using public transport. ⁶⁷ Over one-third (37.3 per cent) of handicapped people in New South Wales, who lived in households, experienced difficulties in using public transport. ⁶⁸ Table 10.1 sets out the main difficulties of handicapped people who experienced problems in using public transport.

Table 10.0: Handicapped People^(a): Difficulties in Using Public Transport

New South Wales 1981

Main Difficulty	Number of People	%
Getting to stops/transport	28,500	7.8
Getting into carriages or vehicles	70,200	19.2
Crowds or poor ventilation	8,000	2.2
Other (b)	30,200	8.2
TOTAL WITH DIFFICULTIES	136,900	37.3
TOTAL WITH NO DIFFICULTIES	229,800	62.7

(a) Handicapped people aged five years or more who live in households in New South Wales. This excludes all handicapped people living in institutions or those living in households who are less than five years of age.

(b) Includes lack of privacy or personal facilities and other difficulties.

Source: Australian Bureau of Statistics, Handicapped Persons Australia 1981, Cat No.4343.0, table 7.13.

In New South Wales only 11.3 per cent ⁶⁹ of handicapped people aged five years or over and living in institutions reported no difficulties with using public transport. Two-fifths (42.1 per cent) of institutional handicapped people were either paraplegic, quadriplegic, in wheelchairs or were confined to their rooms or wards and could be assumed to have had difficulty using public transport. ⁷⁰ Some of the effects of limited mobility on users of public transport could be minimised by greater awareness among planners and designers of public transport systems of the problems of disabled people. Even so, some disabled people will always experience grave difficulties.

10.56 The most common method of transport used in Australia is the private car. ⁷¹ Disabled people, unable to use public transport, may have a special need for a motor vehicle, although of course some will be too disabled to drive a car. Of all handicapped people between the ages of 17 and 64 years living in institutions, 84.9 per cent are unable to drive because of their disability. ⁷² By contrast, 21.5 per cent of those living in households are unable to drive. ⁷³ A disabled person, who is unable to drive or to use public transport, must rely on taxi services or lifts from friends. The alternative is simply to remain housebound.

B. Vehicle Modifications

10.57 A disabled person who wishes to drive a car may find that it requires modifications, such as a hand accelerator, automatic transmission or room for wheelchairs. The Handicapped Persons Survey showed that some 49,300 handicapped people in Australia had their cars modified, while another 16,000 who had cars in their household, said that their vehicles required modifications. Table 10.2 indicates the types of modifications which may be necessary.

Table 10.2: Handicapped People - Type of Vehicle Modifications

Australia 1981

Type of Modification	Number of People
Hand accelerator or brake control	4,200
Automatic transmission	25,700
Power window, steering or mirrors	5,100
Room for wheelchair/station wagon	3,100
Other modifications	21,000
TOTAL OF MODIFIED VEHICLES (a)	49,300

(a) This total is less than the sum of all components, because some vehicles have more than one modification.

Source: Australian Bureau of Statistics, Handicapped Persons Australia 1981, Cat No. 4343.0, table 7.8.

10.58 A disabled person who agrees to participate in a rehabilitation program may obtain vehicle modifications through the Commonwealth Rehabilitation Service. Benefits under the scheme are limited, particularly if the person cannot undertake employment. ⁷⁴ The Service may allow hand controls to be fitted to a motor vehicle if

... the rehabilitee is about to enter employment or is undertaking an approved course of training; or in non-vocational cases, the use of the vehicle is considered essential to the rehabilitee’s achieving and maintaining his or her rehabilitation objective. ⁷⁵

Common law damages generally include the costs of modifying a vehicle, in so far as the modifications are attributable to the disability, but not the cost of purchasing a vehicle. ⁷⁶ The argument is that, since most people at some stage purchase or maintain cars, damages should not include the cost of acquiring a vehicle.

10.59 Under the New Zealand Accident Compensation Act 1982, the Corporation has the obligation of

[a]dapting or assisting with t ‘ he adaptation or purchasing or assisting with the purchase of a motor vehicle where, in the opinion of the Corporation, the adaptation or purchase will assist the rehabilitation of an incapacitated person or will improve his earning capacity. ⁷⁷

Adaptations which may be carried out include hand controls, seating modifications, hydraulically operated mechanisms to replace or assist with hand- operated controls in the vehicle, hoists and equipment carriers and extending the head room of a van. ⁷⁸ If there is no suitable car, assistance may be provided to purchase one. Grants or loans may be made in certain circumstances, for example, where the parent of an injured child requires a car or modified car. If the disabled person cannot drive, seating modifications can be made to a car driven by someone else. Assistance may be available at a later stage for the modification of the next vehicle. An important benefit is a contribution towards the cost of automatic transmission Only one payment for a change to automatic transmission is allowed, presumably because the resale capital value of an automatic vehicle is higher than that of the equivalent manual vehicle. The Scheme provides no continuing periodic payments for running costs or to those who cannot use a motor car and have to use taxi cabs.

10.60 We recommend that the Corporation should meet the cost of necessary modifications to a vehicle owned or regularly used by the disabled person or a member of his or her family. This recommendation is intended to cover not only the case where the disabled person is capable of driving a modified vehicle, but also where he or she cannot drive but requires modifications to, say, the family car in order to use it as a passenger. In assessing the modifications required in a particular case the Corporation should have regard to:

• the disability of the person and its effect on his or her capacity to drive or use the vehicle;
• the person’s need for the use of a motor vehicle to undertake employment or carry out daily activities; and
• the cost of the proposed modifications.

The benefit should be available on more than one occasion, since cars have a limited life span. The Corporation will need to develop guidelines to cover successive applications for vehicle modifications.

10.61 In general we do not think that the Corporation should purchase motor vehicles for disabled claimants. Periodic compensation for loss of earning capacity, together with other benefits under the Scheme, should allow most disabled transport accident victims to purchase vehicles in much the same way as if the accident had not occurred. Nevertheless, it is necessary to take account of the fact that some accident victims will receive relatively low periodic compensation yet have a compelling and continuing need for a motor vehicle. To cover this kind of situation we recommend that the Corporation should have power to contribute to the cost of purchasing a motor vehicle where such a contribution is required to avoid financial hardship to the disabled person. The Corporation should have power to impose a condition requiring repayment of such contribution on the resale of the motor vehicle or on the death of the disabled person, provided that such repayment should not exceed the price obtained on resale or value on death. In addition, the Corporation should have power to make loans for the purpose of financing the purchase of a motor vehicle.

C. Mobility Allowance

10.62 A seriously disabled person’s loss of mobility produces extra travel costs. For example, instead of using public or private transport or walking to town, a seriously disabled person may have to drive into town and pay for a car parking space. Similarly, instead of walking to the local shops or relying on public transport occasionally, such a person may be wholly dependent on motor vehicle transportation. One form of assistance to disabled people who cannot use public transport is a mobility allowance designed to meet additional costs of transport arising from the disability.

10.63 The extra costs of limited mobility are currently recognised to a limited extent by the Commonwealth Government. The Department of Social Security pays a mobility allowance of $10 per week to a disabled person aged 16 years or more, whose physical or mental impairment is such as to make travel on public transport difficult or impossible. The person must be engaged in work or vocational training for at least 20 hours per week and must not have had a sales tax exemption for purchase of a motor vehicle for two years. ⁷⁹ Notwithstanding the restrictions upon these benefits, they recognise the continuing need for assistance in transportation where a person’s mobility is impaired. Severely disabled veterans are also entitled to a Recreation and Transport Allowance to meet these extra costs. Similarly, at a State level, the Urban Transit Authority administers a subsidised taxi service, which enables disabled people who cannot use public transport to obtain transportation in specially modified taxi cabs at half the normal fare.

10.64 It is appropriate that the Scheme should provide a mobility allowance to severely disabled people to meet some of the unavoidable additional expenses of travel attributable to their disability. We recommend that the Corporation pay a mobility allowance, equivalent to 5 per cent of AWE ($21 per week in June 1984), to people unable to use public transport unassisted because of a disability arising out of a transport accident and who incur expenses in travelling by reason of their disability. The allowance should not be payable in respect of disability during the six months following the accident, unless the circumstances are exceptional. We impose this restriction because we see the allowance as being designed to assist those with long-term, (although not necessarily permanent) disabilities, rather than temporary disabilities. However, the allowance should be paid in addition to meeting the cost of necessary vehicle modification, since this is not the only additional expense incurred by a severely disabled person in remaining mobile.

VII. SUMMARY

Household Services

10.65 Where a transport accident victim can no longer perform household services because of his or her disability, the Scheme should provide replacement services to the extent necessary for the maintenance and preservation of the household. The emphasis should be on meeting the immediate needs of the family during the period following the accident. After the first four weeks, account should be taken of the family’s financial resources, including compensation and benefits received by the disabled person and other household family members. Household services should in general be provided through existing agencies, such as the Home Care Service of New South Wales.

Attendant Care and Emergency Support

10.66 A transport accident victim unable to provide adequately for his, or her personal care should be entitled to receive attendant care services. As with household services, account should be taken of the attendant care which other family members could be reasonably expected to provide. The services should be provided by the Corporation through existing government or private agencies and, where appropriate, by engaging members of the disabled person’s family. Emergency family support should be available to reimburse family members for losses incurred in attending to the transport accident victim in hospital or at home during the first four weeks after the accident. In exceptional cases, compensation for travel and accommodation may be extended beyond the four week period.

Accommodation

10.67 A person disabled in a transport accident should enjoy the same opportunities of living in a private home as those available to an able-bodied person. The Corporation should have power to make home loans to disabled transport accident victims who have difficulty borrowing from conventional sources and to negotiate arrangements with the Housing Commission of New South Wales and other public authorities for the provision of housing. Specific provision is made for the payment of the reasonable cost of home modifications both in the case of those wishing to acquire a home and to assist those who wish to remain where they were living at the time of the accident. The Corporation should have power to meet the costs of modification on second or subsequent occasions. Where modifications, made at the Corporation’s expense, add substantially to the value of the home or residence, the Corporation should be entitled, as a general rule, to require repayment of the increase in value on the sale of the premises or on the death of the disabled person.

Institutional Care

10.68 Even with generous provision of support services, including assistance with accommodation, the most seriously disabled will not be able to live independently. Where institutionalised care is necessary, the reasonable costs of such care should be met by the Corporation, subject to some modest reduction for the “board and lodging” component. The Corporation should also have power to establish hostels for the seriously disabled.

Mobility

10.69 In order to increase mobility outside the place of residence of a transport accident victim, vehicle modification costs should be met by the Corporation. In special cases, the Corporation should have the power to contribute to the cost of purchasing a motor vehicle. Where a disabled transport accident victim cannot use public transport unassisted, a mobility allowance of 5 per cent of AWE should be paid after the first six months of disability.

1. The husband’s right of action was removed by the Law Reform (Marital Consortium) Act, 1984.

2. For a discussion of this area of law, see H. Luntz, Assessment of Damages (2nd ed. 1983), paras.4.1.10, 10.1.05-10.1.06.

3. Accident Compensation Act 1972 (NZ), s.121(2) (a).

4. Accident Compensation Commission v. Kivi [1980] 2 NZLR 385.

5. Accident Compensation Act 1982 (NZ), s.80(2) (a).

6. Id., s.80(1).

7. Id., s.80(1) (a).

8. Id., s.80(1)(d).

9. Id., s.80(1)(h).

10. New Zealand Accident Compensation Corporation, Claims Manual 198-3, part II, section 2.4. 1.

11. Corresponding recommendations for household services on death are made in Chapter 12.

12. See Community Welfare Act, 1982, part V, which came into operation on 1 February 1984.

13. Home Care Service of New South Wales, The What, Where and Why of the Home Care Senice of New South Wales (1983), p.9.

14. Australian Bureau of Statistics, Handicapped Persons Australia 1981, Cat. No.4343.0, p.4. table 1.2. This table shows that 448,300 people living in households were disabled in relation to self-care.

15. Id., figure derived from a calculation using numbers from table 4.22 on p.59, with total number of handicapped people living in households from p.4, table 1.2,

16. Id., p.63, table 4.28.

17. Id., p.4, table 1.2.

18. Ibid.

19. Australian Council for Rehabilitation of Disabled, A Discussion Paper on A National Attendant Care Allowance (1980), para.1.3.

20. Id., para.7. I.

21. Id., ch.3, which outlines schemes operating in the United Kingdom and parts of the United States of America.

22. See J Dewdney and I. Irwin, The Aftermath-Caring for Accident Victims in New South Wales (unpublished Commission document, 1983), para.8.3: D. Percy, “Attendant Care Pilot Study: An Update” (1984) Quad Wrangle 19.

23. See eg. Moriarty v. McCarthy [1978] 2 All ER 213, at p.219; O’Brien v. McKean [1970] Qd R166. At p.191.

24. See s.80(3); J L Fahy, Accident Compensation Coverage (7th ed. 1983), pp.64-65.

25. See note 19 above, p.19.

26. Case Study Booklet, para.4.8. C.S.83.

27. See Submission W29.

28. See note 2 above, para.4.6.02.

29. See eg. Cunningham v. Harrison [1973] QB 942; Donnelly v. Joyce [1974] QB 454, Taylor v. Bristol Omnibus Co. Ltd. [1975] 2 All ER 1107.

30. (1977) 139 C.LR 161, See also Hodges v. Frost (1984) 53 ALR 373.

31. Griffiths v. Kerkemeyer (1977) 139 CLR 161, at pp.168-169, per Gibbs J.

32. Submission S9, p.2.

33. Johnson v. Kelemic, (1979) Fam L Cas. 78,487: Bloomfield v. Brambrick, 17 August 1979, Supreme Court of New South Wales. Court of Appeal, see esp. transcript of judgment at p. 1588, per Glass J.A.

34. Kovac v. Kovac [1982] 1 NSWLR 656, at p.669, per Samuels J A, at p.678, per Mahoney J A.

35. See now Motor Vehicles (Third Party Insurance) Act 1942, s.35C.

36. M. Hacker, “Juggling two relationships is tedious” (1983) 6 Quad Wrangle 23.

37. This was the course recommended by the High Court of Australia in Wilson v. McLeay (1961) 106 CLR 523.

38. New Zealand Accident Compensation Corporation, Rehabilitation Manual, ch.5, para.5.7.3. I.

39. Australian Bureau of Statistics, 1981 Census of Population and Housing - Census Statement 4 (October 1982), sheet 7, table 25.

40. Ibid.

41 Id., table 30.

42. Submission W66, p.2.

43. Consensus Research Pty. Ltd., A Survey of Attitudes among Paraplegics and Quadriplegics to Some Aspects of Compensation (September 1983), conducted for the Law Society of New South Wales, and annexed to their Submission W28, p.13, question 5.

44. Id., table 5.

45. For a full examination of available facilities in New South Wales, see note 22 above, paras.7.1-7.7.

46. See note 14 above, p.9, table 1.4.

47. Ibid. Of handicapped people in institutions in New South Wales, 92.9 percent were severely handicapped, approximately 4 per cent were moderately handicapped and 3 per cent were mildly handicapped.

48. Id., p.29, table 2.15.

49. Ibid.

50. Data from special computer runs done by the Australian Bureau of Statistics for the New South Wales Law Reform Commission.

51. See eg. Submissions W24, W45 and W66.

52. See eg. Moriarty v. McCarthy [1978] 2 All ER 213, at pp.219-220.

53. For general discussion, see note 2 above, para.4.1.07. Sometimes home purchase or modification claims are rejected as being unreasonable and too costly: see eg. Cannuli v. Di Matteo. 21 August 1979, Supreme Court of New South Wales, Court of Appeal, transcript of judgment at p.1619, per Hutley J A, where a claim for $75,000 for purchase of a house in Sydney was refused. Sometimes claims for home purchase or modifications are rejected as being too costly, in relation to the alternative of institutional care, once home care and support services are taken into account: see eg. Siems v. Haylock, 7 June 1984, Supreme Court of New South Wales, Master Greenwood, transcript of judgment at pp.34-41. especially pp.38-40.

54. See eg. Frankcom v. Woods, 1 October 1980, Supreme Court of New South Wales, Court of Appeal, in which $70,000 was awarded to provide “such additional facilities over and above the cost of an appropriate house without those facilities”. Additional features which were considered to increase the capital value of the house included garbage, air-conditioning and a swimming pool. While, on the facts of the case, it was not considered necessary because the plaintiff was anticipated to have 40 years use from the house and alterations. the Court said that the plaintiff is required to bring to account any capital gain which accrued from the alterations in assessing the defendants liability to pay damages: transcript of judgment at p.2087, per Glass J A.

55. See eg. Preston v. Mercantile Mutual Insurance Co. Ltd. [1971] SASR 221. This decision followed the judgment of the High Court of Australia in Wilson v. McLeay (1961) 106 CLR 523, which had criticised earlier decisions in which expenses incurred by third parties, such as parents, are held not to be recoverable. Instead both the High Court of Australia and the Supreme Court of South Australia said that they were to be taken into account in the award of general damages.

56. Commonwealth Department of Social Services, Commonwealth Rehabilitation Service Manual of Instructions, s.5/E/13(a).

57. Id., s.5/E/13(c).

58. See note 38 above, Rehabilitation Guideline No. 1.

59. Id., para.5.1.2.2.

60. Id., para.5.1.4.3.

61. For what is regarded as reasonable in such circumstances, see paras. 1 3.71-13.72

62. Sharman v. Evans (1977) 138 C.L.R 568, at p.576, per Gibbs and Stephen J J.

63. Submission W66, p.1.

64. See note 14 above, p.2., also table 1.1.

65. Id., p.xvi.

66. Id., p.4. table 1.2.

67. Id., p.102.

68 Id.. p.105. table 7.13.

69. Id., p.108, table 7.19.

70 . Ibid., see also p.107.

71. Id., p.99. In the 1976 Census of Housing and Population, 84.3 per cent of dwellings had one or more vehicles on Census night.

72. Id., p.100. table 7.5.

73. Ibid.

74. See note 56 above, s.5/3/8(b).

75. Id., s.5/3/8(a)(1).

76. Jackson v. Jackson [1970] 2 NSWR 454, at p.460; Cull v. Judd [1980] WAR 161, at pp.170-171; Moriarty v. McCarthy [1978] 2 All ER 213, at p,220.

77. Accident Compensation Act 1982 (NZ), s.37(3) (g).

78. See generally, note 58 above, Rehabilitation Guideline No.2.

79. Social Security Act 1947 (Cth.), part VIIB, ss.133RA - 133RE.