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Castro v Hillery, Suncorp General Insurance Limited & Ors [2001] QSC 510
If a service arises as a consequence of the injury, a Plaintiff is entitled to claim for the care and assistance provided gratuitously by a partner, family and friends.1
The Supreme Court of Queensland in Castro v Hillery & Ors,2 considered the extent a person is entitled to claim damages under this heading, in circumstances where the services are provided overnight by the Plaintiff’s husband whilst both parties are predominately asleep.
The Plaintiff, Ms Loliny Castro, was a thirty-six (36) year old woman injured when struck by a motor vehicle whilst attempting to walk across a pedestrian crossing at night-time.3 As a result of the collision, the Plaintiff was initially left in a vegetative state and remained grossly impaired, suffering from permanent injuries to her brain and legs.4 Specifically, the damage to the Plaintiff’s brain left her with significant physical disabilities, including left sided spasticity which interfered with her ability to walk unaided, loss of speech, and reduced tongue and lip control with compromised swallowing.5
As a result of her injuries, the Plaintiff required the full-time care and assistance of carers and her family, primarily her husband,6 for her daily needs such as mobilising, cooking and consuming food or drink, showering and bathing, transportation, and administration of medication. Furthermore, the Plaintiff was now a significant risk of falling, tripping and choking. 7
The Plaintiff also suffered from disturbed sleep, characterised by waking up three (3) to four (4) times during the night. At these times, the Plaintiff often left bed attempting to mobilise to the toilet, other areas of the house and sometimes outside.8 Consequently, the Plaintiff required overnight supervision as to prevent her from falling and sustaining further injury.
At trial the parties did not dispute the fact that the Plaintiff will never return to meaningful employment and will require the assistance of others on a full-time basis for the entirety of her remaining lifespan. Accordingly, the parties were capable of settling past economic loss, interest, past loss of superannuation, rehabilitation expenses, and past and future medication prior to trial.9
A question in contention at the trial of this matter was ‘To what extent can the Plaintiff claim for the overnight supervision provided by her family, ordinarily her husband, whilst sleeping in the same bed next to her?’
In determining the fact, the Court was required to consider whether it is ‘fair’ or ‘reasonable’ for the Defendants to compensate the Plaintiff for her husband’s efforts when, but for the injury, he would have ordinarily slept next to her.
Care and assistance are assessed by the market cost of providing the service, despite evidence suggesting the Plaintiff has so far paid over or under the market value for such services, or received the services gratuitously free of charge.10
On this basis, the Plaintiff’s Counsel was of the opinion that she was entitled to claim for twenty-four (24) hour care and assistance, including the overnight supervision provided by the Plaintiff’s husband, at commercial prices.
The Second Defendant, Third Defendant and Fourth Defendant jointly argued that a claim for the Plaintiff’s husbands care at commercial rates, whilst sleeping in his own bed next to his sleeping wife during the evening placed an unfair burden on the Defendants.11
The Court dismissed the Defendants argument, quoting Chief Justice Mason in Van Gervan where he remarked “it does not seem reasonable that the Defendant’s liability to pay damages should be reduced at the indirect expense of the provided by invoking notions of martial or family obligation to provide services free of charge or at less than market rate.”12
Secondly, the Defendants raised that the rate for gratuitous services in these instances should be decreased on the basis that commercial costs incur an administration charge, quoting Justice of Appeal Davies in Kars v Kars where his honour principled ”in a labour market such as the present one, in which there is a high level of unemployment, particular unskilled labour, unskilled services such as this could be obtained at a price charged by the commercial care giver before adding its administration price charge.”13
Despite the Plaintiff’s husband having the opportunity to sleep during the period claimed, the Court found that the care provided to the Plaintiff could not be regarded as unskilled services and should therefore, be assessed at market rates.14
In relation to overnight assistance, the Court ultimately concluded that where the Plaintiff has an irregular sleep pattern and could be a danger to herself if she is awake and unsupervised, in most instances the cost of the service in all probability, has been well earned.15
The Plaintiff was ultimately rewarded $4,551,900.06 in damages, of which care and assistance represented the primarily damage comprising of $400,000.00 for past care and assistance, $100,000.00 for interest on past care and assistance, and $2,850,000.00 for future care and assistance.
At Littles Lawyers, we are legal experts on the quantification of a variety of paid or gratuitous care and assistance services which may be required as a result of a workplace, motor vehicle or public liability incidents.
Please reach out to the author and the team at Littles Lawyers for further advice on Personal Injury, Public Liability, Workcover, Motor Vehicle, Medical Negligence, Total Permanant Disability (“TPD”) or Abuse Claims. Further CTP Motor Vehicle Accident information or Case Law Updates written by the author, Claudia Douglas, can be found on our website.
Footnotes
1 Griffith v Kerkemeyer (1977} 139 CLR 161.
2 [2001] QSC 510.
3 Castro v Hillery, Suncorp General Insurance Limited & Ors [2001] QSC 510 [2] – [4].
4 Castro v Hillery, Suncorp General Insurance Limited & Ors [2001] QSC 510 [11] and [27].
5 Castro v Hillery, Suncorp General Insurance Limited & Ors [2001] QSC 510 [30] – [33]
6 Castro v Hillery, Suncorp General Insurance Limited & Ors [2001] QSC 510 [39].
7 Castro v Hillery, Suncorp General Insurance Limited & Ors [2001] QSC 510 [30] – [33]
8 Castro v Hillery, Suncorp General Insurance Limited & Ors [2001] QSC 510 [35].
9 Castro v Hillery, Suncorp General Insurance Limited & Ors [2001] QSC 510 [45].
10 Van Gervan v Fenton (1992) 175 CLR 327; Kars v Kars (1996) 1187 CLR 357 [372].
11 Castro v Hillery, Suncorp General Insurance Limited & Ors [2001] QSC 510 [54].
12 Van Gervan v Fenton (1992) 175 CLR 327.
13 Kars v Kars (1995) Aust Torts Reports 81-369 at p 6817.
14 Castro v Hillery, Suncorp General Insurance Limited & Ors [2001] QSC 510 [60].
15 Castro v Hillery, Suncorp General Insurance Limited & Ors [2001] QSC 510 [56] and [62].
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