Now that we’ve calculated the biggest head of damage, we can move onto the second biggest – care.
And don’t worry, this one’s easier.
As opposed to commercially paid or hired help, this type of care is referred to as ‘gratuitous’ – or, free of charge.
Gratuitous care simply refers to the services provided by family members to assist in the day-to-day care of a medical negligence victim.
But, the addition of this care can often have a heavy impact on the providers, taking time out of their social lives, work, and other day-to-day duties.
To compensate for this, the court offers an award for gratuitous care services.
This award is calculated with reference to the market (or commercial) cost of the services, with the extent of coverage stretching far and wide across common duties such as:
Jess experienced birth trauma as a result of her midwife’s negligence. Brett, her husband, now has to take care of day-to-day domestic duties - finishing work early to make sure dinner is cooked, taking time out of his day to provide the necessary care for their newborn baby where Jess normally would.
On top of this, he’s driving her to and from her appointments, helping her buy medication, and running her errands for her.
In this situation, the court would provide an award for gratuitous care to pay for Brett’s time. The amount is based on the commercial price for these services – in other words, what would be the cost of hiring someone commercially to do this?
We’ll continue this in the next section, but what we first need to consider is whether or not Brett is actually eligible to claim for these services. Let’s cover off some of the limitations first.
To qualify for gratuitous care compensation, you need to fulfil the following:
This would mean that Brett can’t be claiming for accommodation and flights to Cairns to collect medication when it is available at the corner pharmacy – it has to be reasonable.
It also has to be provided for over 6 hours a week for six months and needs to be as a result of the injuries. If Jess had breast cancer and Brett had already been providing care for this, those hours of care would not be paid for – it would have to be anything in addition that is a result of the medical negligence.
Claiming for gratuitous care is also restricted to services provided by:
In Jess’ situation, Brett qualifies for gratuitous care compensation because he’s her spouse. However, a close friend who comes over once a week to water her plants with her and has a tea cannot be considered eligible.
The level of award is capped at 4 x the state average weekly earnings unless the court agrees that:
The average weekly earnings are laid out in Vincent’s Litigation Tables. It might seem like a large amount of money; however, for people who are severely immobilised from their injury can find their care reaching these levels.
For most, however, this won’t be a concern
At the time of Jess’s injury, the average weekly earnings in QLD were $1541.90. This means Brett can’t be granted damages in an amount exceeding $6167.60 per week without the reasoning outlined above.
Quantifying the future costs can often come with greater room for disagreement because, once again, you’re predicting the future.
Despite this, we’re going to do it before past care because it can often have a larger outcome - and we’re keeping that $150,000 in mind.
To predict the future as accurately as possible, you’ll need to have evidence from a range of
medical professionals. They with their recommended care services and their expectations for
how long you’ll require these services.
We recommend you get one (or multiple) of these assessments before starting this section. If
that’s not possible, then not to worry! Do your best to predict.
Jess’ obstetrician might recommend 12 weeks of bed rest, six months of part-time postnatal care for the baby, three more ultrasounds in different towns, and 6 GP visits.
From this, an occupational therapist would be able to decipher what tasks Jess will and won’t be able to do, how often they will need to be done, and for what time frame.
This might be 5 hours per week for cleaning and outdoor maintenance until the end of Jess’ life.
To start your calculation, you will need to:
The first step is working out what services you will need, and for how many hours per week.
For example, Jess’ OT has told her she needs cleaning services and outdoor maintenance services for 5 hours per week.
The next step is to estimate how many years you will need these services for.
If it’s until you pass away, you can refer to the Prospective Life Tables to see how many years the court will take into account for this.
Jess will require her 5 hours of care for the rest of her life. She is currently 40 years old, so she uses the prospective life table to work out that she has 46.47 years (on average) to account for.
For simplicity purposes, we’ll round this down to 46.
She then puts this into her table in column 1.
Find the commercial cost of these services by searching online for similar services,
noting how much they are charging, and then estimating an average.
Jess found that the average cost for cleaning services was $35 per hour and garden maintenance services were $55 per hour. She put this into her table and worked out the cost per week:
Sasha’s 5% multiplier was 956 and her weekly cost was $195, meaning her future gratuitous care is worth $186,420.
You should note this number on your own Schedule of Damages table to keep track of where you’re at.
Now that we’ve quantified your future care costs – the significant costs – we can start quantifying the care you’ve already received.
And doing that isn’t too hard.
What you should first do is list out all the care you’ve received and roughly how many hours per week you’ve received it.
For example, Jess and Brett listed:
Then, you can use the information you found from the future care section to note the commercial costs and the total cost. The total cost will be Hours/wk x Commercial $/Hr x Weeks.
For Jess and Brett, their past care and commercial predictions might look a little like this:
Now you can add this to your schedule of damages.
It’s recommended, at this point, to add up your damages so far to see if you’ve reached the $150,000 quantum threshold.
Below is Jess's example:
By doing this, you can check if you can surpass the remainder of this workbook and start working out how you’re going to hold your doctor accountable.
If you haven’t passed the threshold yet, don’t worry.
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