What care and assistance can be claimed for in a personal injury claim in Queensland?
What is care and assistance ?
When we talk about care and assistance with domestic, personal care, vehicle or home maintenance tasks, we are talking about such things as:
- Domestic tasks – such as general household chores such as cooking, cleaning, mopping, vacuuming, turning mattresses, taking out rubbish, changing bedsheets, laundry, ironing, cleaning windows or mirrors, dusting, scrubbing out bathroom areas, grocery shopping etc;
- Personal care tasks - such as helping you out of a chair or bed, or helping you to the toilet, helping you bathe, helping you dress, changing bandages or cleaning wounds, helping with hair care, organising and taking you to medical appointments, obtaining your medications or medical aids for you, cutting your toenails or shaving, providing you with massages to relieve pain, and even undertaking personal errands for you such as banking etc;
- Vehicle maintenance tasks - such as cleaning your car, or undertaking your car repairs or maintenance that you did yourself prior to the accident;
- Home maintenance - such as cleaning down gutterings or eves, washing down walls or outside windows and screens, house repairs and general maintenance to your home such as fixing gates or even changing light bulbs etc, as well as yard maintenance such as mowing the lawn, undertaking the gardening, weeding, whipper snippering, lopping back trees, pruning bushes etc.
So if you need help with any of the above tasks due to your accident injuries, or you are likely to need such help in the future, you may be able to include a claim for such care and assistance in your personal injury claim.
What care and assistance can you claim for at law?
There are certain thresholds and restrictions that apply however when claiming for paid or gratuitous care. Under the Civil Liability Act 2003, the legislation which applies to motor accident and public liability claims for personal injury in Queensland (not a work injury claim against an employer), there are certain limitations upon claiming for care provided to you with your domestic, personal care, vehicle and home maintenance tasks, following your accident. In all personal injury claims (other than the majority of work injury claims) These are as follows:
- You can only claim for gratuitous care or assistance if your need for care because of your accident injuries has been to the extent of at least 6 hours of care per week over a period of 6 months. We call this the “care threshold”.
- This care threshold can be met during the period since the accident or, it may be met at some time in the future (eg. if medical experts advise that your injuries are likely to deteriorate over time and in the future you are likely to require increased care at some stage of 6 hours per week over 6 months).
- Once this care threshold is met (whether now or it is likely to be met in the future), you can claim for all the required gratuitous care and assistance that has been provided to you since the accident and that you are most likely going to need on an ongoing basis into the future, due to your accident injuries.
- However, it should be noted that if you were already receiving certain services gratuitously prior to the accident, then you cannot claim for those services following the accident. You can of course claim for any increased gratuitous services you require due to your accident injuries, but they must meet the threshold of 6 hours per week over 6 months.
- You can claim for any past paid care you have required to engage since the accident because of your accident injuries. However, if you were paying for these services prior to the accident, then you cannot claim for this paid care following the accident. You can of course claim for any increased paid assistance you have required due to your accident injuries and are likely to need on an ongoing basis due to same, in the future.
- If you have been paying for care and assistance since the accident, or it is more probable than not that you will engage such paid care and assistance in the future, (and you were not paying for this care and assistance prior to the accident), then you can make a claim for this paid care and assistance on an ongoing basis into the future, if you require such assistance due to your injuries.
- When we speak of “paid care and assistance” or “paid services”, we are talking about any payment you have made for domestic cleaning, home or vehicle maintenance or for personal care that you have had to incur due to your injuries. Examples of this are paying for domestic cleaning services in your home, paying for a gardener to mow your lawn or maintain your garden, paying for your car to be washed or even paying for taxi services where you would normally have driven yourself but for your injuries.
- It should also be noted that you cannot claim for care and assistance you were already in need of prior to the accident, due to some pre-existing injury or medical condition.
Extended claims for domestic care and assistance in certain circumstances
In certain special cases of injury, the gratuitous domestic care and assistance that can be claimed for, extends past the care and assistance required by an injured claimant themselves and includes other persons who, for varying reasons, the claimant may have been providing domestic care and assistance to prior to the accident.
For instance, where a mother who has 3 small children is injured in an accident and has difficulty then caring for her children due to her injuries, if the required criteria set out in the Civil Liability Act 2003 and Regulations is met, then the mother’s claim for care and assistance due to her accident injuries is not limited to her own care and assistance needs, but extends also to the domestic care needs of her children.
These special cases of extending care and assistance claims beyond just the care needs of the injured claimant, are not just limited to cases where care is needed by children, but include cases where care is needed by any person who, at the time of the accident, was residing at the claimant’s usual residence, and the claimant was providing care for at the time of the accident due to that person’s age, or some mental or physical disability. For example, a claimant may have been caring for their elderly mother at the time of the accident and due to their injuries, can no longer provide such care. Or a claimant may have been caring for a disabled person at the time of the accident, but can no longer do so due to their accident injuries.
These extended care claims also include claims for the care needs of unborn children of an injured claimant, and takes into account circumstances where the care recipient did not ordinarily reside on a full time basis with the injured claimant (eg. where custody of a child is shared between separated parents, or the care of an aged or disabled person is shared between siblings etc).
What is the threshold criteria to be met for entitlement to such extended care?
The threshold criteria that requires to be met for an entitlement to claim such extended care is as follows:
A. The injured claimant submitting such care claim, must achieve a General Damages award for the injuries they sustained in the accident, under the Civil Liability Act 2003 and Regulations in the amount of :
- If the injury occurred post 01/07/2010 - $35,340.00;
- If the injury occurred post 01/07/2011 - $36,400.00;
- If the injury occurred post 01/07/2012 - $38.390.00;
- If the injury occurred post 01/07/2013 - $40,460.00.
This means that the claimant must have sustained quite a seriously debilitating injury in the accident.
B. The injured claimant died as a result of their accident injuries.
To see if you meet the criteria, go to our General Damages ISV Scale page by clicking on : ISV Scale
What a court takes into account when awarding this extended care
When awarding such special care however, a Court is to take into account:
(a) Whether the care claimed for was, or is, reasonably required in all the circumstances;
(b) Whether, if not for the claimant’s accident injury, it is reasonably expected that the claimant would have provided such care to the recipient for at least 6 hours per week and for a period of at least 6 months, or this amount of care will be reasonably required in the future;
(c) If the claimant would not have provided the care to the care recipient since the accident at the rate of 6 hours per week for at least 6 months, but this was because the care recipient was not continually residing with the claimant at the time of the accident, because:
(i) They were being cared for by another parent (eg. shared custody or access of children); OR
(ii) In the case where the care recipient is aged, frail or suffers mental or physical disability, the claimant had regular breaks from such care provision (eg. the care of an elderly mother being shared with siblings);
then the Court can award such extended care where it considers it is reasonable to do so in all the circumstances;
(d) Any overlapping of this extended care with the care already being provided to the injured claimant (eg. Domestic cleaning of the home, yard work provided to the claimant, which benefits the household in general etc);
(e) Any incapacity the claimant had in providing such extended care prior to sustaining their accident injuries;
(f) The extent to which the care provided by the claimant to the care recipient prior to the accident, also benefitted other persons outside the claimant’s household;
(g) Any care claim the recipient of the care may have on their own behalf as a result of the subject accident in which the claimant was injured, or any other accident as a result of which any care award has been made or may be made on their behalf (eg. a child’s parents may both be injured in a motor vehicle accident and both of the parents may each claim for the provision of care to their child which they can no longer provide due to their accident injuries. The Court has to consider the overlapping of care claims in such case).
In cases of such special extended care:
- “Gratuitous domestic services” has the meaning – “services of a domestic nature for which there has been, and will be, no payment or liability to pay”.
- “Parent” includes a person who stands in the place of a parent.
There are different rules when claiming for care in a pure work injury claim
Claims for care and assistance provided to an injured worker following a work accident, differ from those referred to above. The thresholds and criteria required to be met to achieve damages for care and assistance, are much more restrictive in work injury claims. The Workers’ Compensation & Rehabilitation Act 2003, the legislation governing a worker's claim against his employer for damages for injuries sustained in the course of his employment in Queensland, stipulates these limitations upon care claims, which are as follows:
In a pure work injury claim, you cannot claim for any gratuitous care provided to you because of your injuries, since the work accident, unless that gratuitous care has been provided by someone other than a member of your family, your household or a friend.
You can claim for paid care you have reasonably required due to your injuries since the work accident.
- You can claim for paid care you will require due to your injuries in the future, but only if
- You have been paying for such care since the accident, or
- The majority of such care has been paid for and not provided as gratuitous care since the accident.
- You can claim for any care that you require due to your injuries in the future (whether gratuitous or paid care),if, since the work accident:
- You have not received any assistance with those domestic, personal care, vehicle or home maintenance tasks for which you are claiming future care(an example of this is where an injured worker may live alone and does not have anyone to assist them with their care needs and cannot afford to pay for care); or
- The care that you are claiming for in the future, has been provided to you since the work accident, gratuitously by someone other than a member of your family, your household or a friend (an example of this is where an injured worker is provided with assistance by a community service or charitable organization without charge, or at less than commercial rates).
- You cannot claim for any care and assistance, either as past care or future care, that:
- You were already receiving by way of paid services, or gratuitous care from a family or household member or a friend, prior to your work accident; or
- Was already required by you prior to your work accident due to some pre-existing injury or medical condition.(This does not apply to any increased care you require due to your accident injuries however).
You should keep as much documentation evidencing your care payments as possible to aid you in supporting your claim for both past paid care and future paid care.
Please note that under the Workcover legislation, “paid care” and “gratuitous care” have the following meanings:
(a) “Paid care”, such care must be at commercial rates provided by another person in the course of that person’s professional capacity or business. (Examples of this are: paying domestic cleaners to clean your home, or a gardener to maintain your lawn and yard, paying for nursing care, paying for car wash expenses, or even paying for a taxi, bus or train etc to take you places, when you would have driven yourself if not for your injuries);
(b) “Gratuitous care”, this is any care other than paid care (above), which is provided to you by a member of your family or household or by a friend.
Cases where a claim involves overlapping claims under the Workers' Compensation & Rehabilitation Act 2003, the Motor Accident Insurance Act 1994 and/or the Personal Injury Proceedings Act 2002
Where a case involves overlapping claims under the Workers' Compensation and Rehabilitation Act 2003, Motor Accident Insurance Act 1994 and/or The Personal Injury Proceedings Act 2002, the rules about care as set out above do not apply in respect to a motor accident claim or a public liability claim under the Personal Injuries Proceedings Act 2002. In such cases, the common law rules apply in respect to any claim for care against the CTP insurer or Respondents to the public liability claim, and all care provided to an injured claimant, whether gratuitously or as paid care, can be claimed with no thresholds applying. This is becausethe restrictions on damages under the Civil Liability Act 2003 do not apply to a motor accident claim or a public liability claim if the injured party is entitled to claim workers' compensation for the injury in question under the Workers' Compensation & Rehabilitation Act 2003, and it is not classed as a "journey claim" (an injury occurring on the way to or from the workplace).
Examples of such claims are:
- A case where a worker is injured in a motor vehicle accident whilst driving his courier van in the course of his work. In such case, the injured person has a motor accident claim and a workers' compensation claim under the Workers' Compensation & Rehabilitation Act 2003. Therefore, the worker can claim against the CTP insurer of the offending vehicle, for all care and assistance provided;
- A case where a worker is injured slipping and falling on defective stairs in the workplace where the stairs are owned by a landlord of the work premises (not the employer). In such case, the injured worker would be entitled to make a workers' compensation claim in relation to the work injuries sustained in the fall, and he would also have a common law claim against his employer under the Workers' Compensation & Rehabilitation Act 2003 for failing to provide him with a safe workplace, as well as a possible claim against the property owner or Landlord under the Personal Injury Proceedings Act 2003, as the owner of the defective stairs. As a consequence of the worker having entitlement to claim workers' compensation for the injury (and it not being a journey claim), the worker is entitled to claim against the Landlord for all care and assistance he has reasonably required as a result of his work injuries.
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