Hills v State of Queensland [2006] QSC 244 

A Plaintiff is entitled to claim for the care and assistance provided by paid carers or gratuitously by their partner, family or friends, if the service arose as a consequence of the injury.1  

The Queensland Supreme Court in Hills v State of Queensland2 considered the measure of care and assistance damages in circumstances where the Plaintiff was born with Type 1 Diabetes Mellitus and would have required the care and assistance of his parents, but for the injury.

Background

The Plaintiff, Mr Christopher Hills, suffered brain damage as a consequence of an emergency caesarean section in the context of a foetal cardiac arrest.3 The State of Queensland, which is vicariously liable for the actions of the employees at Toowoomba Base Hospital, admitted it was legally responsible for the negligence relating to the Plaintiff’s birth.4   

As a result of the Plaintiff’s brain damage, he suffers from cerebral palsy and is now dependent upon the assistance of others on a twenty-four (24) hour daily basis for feeding, toileting, bathing, walking, standing, mobility around the house, transportation, exercise, stretching and administration of medication.5 He will require such services for the rest of his life.6 

The Plaintiff was also diagnosed with Type 1 Diabetes Mellitus, a pre-existing condition not related to the negligence of the Defendant. As a result, the Plaintiff is required to use an automated insulin delivery pump.7 

The Law: How Care and Assistance is Measured

Care and Assistance is not an assessment of the carer’s efforts, but of the Plaintiff’s loss, which is his need for care which he would not need, but for the Defendant’s negligence.8  Where the Plaintiff requires snippets of ‘hands-on’ care and the presence of someone who is capable of responding immediately, gratuitous care is claimed for the entirety of the period despite the carer’s ability to undertake other unrelated tasks or activities at the same time.9  

Future Paid Care and Assistance are not determined by reference to what the Plaintiff will pay, or will not pay for care, but according to the reasonable market value of a service.10 However, in circumstances where the market value is greater than the equivalent in a densely populated area, such as where the Plaintiff lives in a remote location, the cost is not the “reasonable” market value of the service and will be discounted based on the Court’s discretion.11 

Services for care and assistance, whether provided gratuitously or not, are valued at the same market rate.12 A difference in rate is applied where the gratuitous services are found to be less physically intensive or demanding upon the carer,13 for example where a paid carer performs regular hoists during the day-time shift. 

Section 16(1) of the Supreme Court Act 1995 (Qld) requires the discount rate to be applied for future damages of five (5) percent for paid care and three (3) percent for services provided gratuitously.14 The difference in discount rates was deemed necessary by the Court, in circumstances where the damage should reflect the burden borne by unpaid carers.15 The trial judge is ultimately responsible for determining, subject to the evidentiary findings, how much of the care is likely to be satisfied by paid carers and how much by unpaid carers.16  

Additional hours of paid care should be considered, in order to provide gratuitous carers with periods of ‘respite’.17 

Decision

Ultimately, the Court did not follow either approach presented by the Plaintiff or Defendant. 

The Court found that the Plaintiff’s needs would be met at times by both paid care and gratuitous care.  

The approach for calculating care is to start from the position that the Plaintiff has required the attendance of someone on a twenty-four (24) hour basis, and then to subtract some estimate of what would have been required had he not been disabled, but he had the requires of child with type 1 diabetes.18 

Children who are not disabled require ordinary parental care in their early years before the age of approximatley four (4) years,19 on a twenty-four (24) hour basis and as they grow, they require less care although they remain in the protection of the family household.20  

The Court rejected the Plaintiff’s argument that during his early years the Plaintiff required “more intensive” twenty-four (24) hour care, then that of a child the same age who only may require “active assistance”, based upon the underlying principle that “care is not an assessment of effort”. 21  

For this same reason, the Court rejected the Defendant’s argument that care should be reduced, on the basis that the Plaintiff’s parents are capable of performing unrelated household duties or work-from-home between the periods where they are providing the Plaintiff with “occasional snippets” of assistance.22 

The Court found from the age of four (4) to ten (10), the Plaintiff’s need for ordinary parental care would have gradually diminished. However, had the Plaintiff not been disabled, his required care would have been higher than other children due to his pre-existing diabetes.23 By the age of ten (10) the Plaintiff would be mostly independent in his daily management of diabetes, and by the age of fourteen (14) he would have required no parental care had he not been injured.24  

The Court accepted the evidence that at the age of twenty-one (21) years, the Plaintiff will live independently from his parents and from that time, he will require the additional assistance of paid carers.25 The Court elected paid care on twelve (12) hour shifts a day, opining that outside of those hours the Plaintiff’s parents or other family members would look after him in circumstances where “it is unlikely that Mr and Mrs Hills would quickly hand over all of the care for Christopher”. 26 

Thereafter the Court found that at some point, likely later in life, the Plaintiff would be cared for in an institutional setting, such as a nursing home. 27 The Defendant argued that as the discount rate of paid care is less than parental care, a deduction of ten (10) percent in contingencies should be made to account for the difference. 28 The Court adopted a contingency rate of five (5) percent, in circumstances where the overall cost of future care measured in present terms would be minimal. 29 

Ultimately, the Plaintiff was awarded for future care $2,970,136.00 and for past care $255,550.00. The Court allowed an interest rate of four (4) percent for approximately six years and three months (6.25 years) which amounted to $63,875.00.  

The Plaintiff’s judgement settled for $5,502,793.00, future care being the predominant head of damage. 

At Littles Lawyers, we are legal experts upon 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 Medical Negligence information or Case Law Updates written by the author, Claudia Douglas, can be found on our website.

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