Civil Liability – Claiming ‘Care’ in a Personal Injury claim

There are several different types of ‘care’ that may be claimed as compensation in a personal injury claim. The most recognised types of ‘care’ compensated are paid care and gratuitous care. It is important that claimant’s are aware of their entitlements to compensation for ‘care’.

There are thresholds to reach when making a claim for care. These thresholds are set out in the Civil Liability Act 2003. This legislation and its restrictions apply to motor vehicle accident claims and public liability claims.

Paid Care

Paid care can be claimed when the expense has been as a result 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 a claimant was receiving paid care, such as someone attending their property for yard maintenance, the claimant can only make a claim for the amount of increase in their need for that paid care as a result of the personal injury, not the full amount. Once a claim for past paid claim has been set out, a claimant can also make a claim for future paid care which details the amount of paid care that will be required into the future as a result of the personal injury. 

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

Gratuitous Care

It is easy for claimant’s to not 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 person’s friends or family. This is called gratuitous care, and an injured person can make a claim in this area. 

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

It is important for a claimant to consider when making a claim for gratuitous care is determining what the scope of services extends to that might be claimable. For example, emotional support, filling in for the claimant in their self-employment business, and what type of care and support has been provided to the claimant. The general principal, as outlined in Wilson v McLeay (1961) 106 CLR 523, provides 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 a claimant 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 the claimant meets these requirements, a claim for gratuitous care can be made for the equivalent amount of hours in which the care was provided to the claimant. The rate at which the claim is made is in accordance with current commercial rates. A claim for gratuitous care required into the future can also be made when past gratuitous care can be demonstrated.  

It is important that a claimant keeps a record of the number of hours in which gratuitous care was/is provided to them so a claim for this care can accurately be made.  

Emily Wright and our team are specialist personal injury lawyers who can assist you with your claim on a ‘No Win No Fee’ basis. If you would like advice in relation to a personal injury claim, including a medical negligence claim, please reach out to Emily Wright and Littles Lawyers today. 

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