What does claiming care mean in my injury claim?

There are several different types of care that may be claimed in a personal injury claim.

The most recognised types of care are paid care, and gratuitous care. When people consider personal injury claims most people understand that the claim will include the primary components of compensation, such as a pain and suffering, a claim for loss of wages and medical expenses. However people do not usually think about what would happen if they were unable to do everyday tasks which they were previously responsible for doing, such as gardening or vacuuming. On most occasions, people cannot afford to pay a cleaner to attend their house regularly to undertake these tasks. Therefore, in the majority of circumstances these tasks are then usually undertaken by the injured persons friends or family. This is called gratuitous care and an injured person can make a claim in this area.

There are however thresholds to reach when making a claim for care which is set out in the Civil Liability Act 2003. This legislation and its restrictions apply to motor vehicle accident claims, and public liability claims, such as slips and falls.

Paid Care

Paid care can be claimed when the expense has resulted from the personal injury occurring. The care must only be claimed where it can be proven that the care has only been provided since the accident. If you were receiving paid care, such as someone attending your property for yard maintenance, you can only make a claim for the amount of increase in your need for that paid care, not the full amount. Once a claim for past paid claim has been set out, you can also make a claim for future paid care which details the amount of paid care that you will need into the future as a result of the personal injury.

It is always best practice to keep a copy of any receipts which evidences the care that has been provided and paid for.

Gratuitous Care

Gratuitous services have been defined as providing services, other than paid services, that are provided to an injured person by a member of the injured persons family, or within their household (however this does not include housemates), or a friend.

What the injured person needs to consider when making these claims for gratuitous care is determining what the scope of services extends to that might be claimable. For example, emotional support, filling in for the injured person in their self-employment business and what type of care and support has been provided to the injured person. The general principal as outlined in Wilson v McLeay (1961) 106 CLR 523 states that an injured person cannot make a claim for mere love or support. The reasonable allowance is that the person is giving the injured person support, care and completing domestic tasks around the home that the injured person would usually have done prior to sustaining injury. Domestic tasks might include cleaning, cooking, shopping and maintenance around the home, put simply, services that are necessary.

To be able to claim gratuitous care you must prove that the care was being provided at a rate of at least six hours per week, for a minimum of six months. If you met these requirements a claim for gratuitous care can be made for the equivalent amount of hours in which the care was provided to you. The rate at which the claim is made is in accordance with current commercial rates. For example, the current hourly rate of a cleaner. A claim for gratuitous care required into the future can also be made when we can demonstrate past gratuitous care.

To strengthen a claim for gratuitous care it is ideal to keep a record of the amount of hours in which gratuitous care was provided to you so a claim for this care can accurately be made. However please note that if the paid care, or gratuitous care were provided prior to the claimed period, then those services, or care cannot be claimed in the past, nor into the future.

The fundamental basis in this area which an injured person needs to follow is outlined in the case of Griffiths v Kerkemeyer. Here this case established that the plaintiff was entitled to recover an amount equivalent to the commercial cost of nursing and domestic services, which had been provided in the past, and will be provided in the future by the plaintiff’s family or friends.

There has also been argument over the years as to whether such care offered can extend to the looking after of the injured persons animals. The initial case law that determined that issue states that this is not able to be claimed, and that such care does not go as far as looking after animals. However there have since been cases which have made an allowance for this care, such as walking dogs, cleaning up after dogs, and additional time spent vacuuming caused by dog hair. What needs to be established to get these claims across the line is to show that such care is a ‘need’, reasonably, that the injured persons dogs needed to be cared for and the injured person was incapable of doing so as a result of the injuries sustained. Where the injury creates a need for the care, the provided services are reasonable.

Summary

To strengthen any claim made for paid or gratuitous care in a personal injury claim, it is important to keep records and receipts. You should create a document which outlines the tasks that someone else is doing for you (which you used to do) and how long per day that person spent doing the tasks. When making a claim for paid care it is important to keep receipts showing any out-of-pocket expenses you have incurred. You can only make a claim for the incurred care costs if they were not previously provided to you prior to sustaining injuries.

Also, to clarify, when an injured person makes a claim for both past and particularly future gratuitous care, provided on an hourly basis, commercial rates are used to calculate what the care component equals. For example, we look at the hourly rate and going rate for a cleaner and times that by the number of hours that the care has been provided. The claim is made in this way so that in the future it is up to the injured person to decide whether to continue obtaining gratuitous care from friends or family, or to replace this care with paid care.

We must keep in mind however that to claim gratuitous care, the injured person needs to reach the threshold, by showing that the services have been provided for at a minimum six hours a week, for six months.

Get in touch with us

At Turner Freeman, we have specialist personal injury lawyers who will assess your case and provide personalised advice regarding your legal entitlements.  Our lawyers are located across Queensland including offices in Brisbane, Gold Coast, Sunshine Coast, North Lakes, Logan and Ipswich. Contact us today on 13 43 63.