QLD Medical Negligence: The measure of care and assistance in circumstances where the Plaintiff suffers from a congenital disorder

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.