What does claiming “care” mean in the context of my personal injury claim?
Published on January 19, 2024 by Julia Harrison
In the realm of personal injury claims, the notion of “care” stands as a fundamental aspect of a claim made under the Civil Liability Act 2002 (NSW) (the Act). When a person suffers harm due to the negligence or wrongful actions of another party, they might seek compensation for the various losses they have incurred. Among these losses, “care” serves as a distinct category, or head of damage, encompassing expenses and considerations associated with the care and domestic assistance required because of the injury. The Act outlines specific provisions concerning compensation for care as a head of damage in such claims, and this article looks at how you might include this in your personal injury claim in NSW.
Understanding care as a head of damage in your claim
When you consider bringing a personal injury claim, it is generally understood that such a claim will include heads of damage including general damages (pain and suffering), a claim for loss of wages and any expenses incurred for medical treatment.
What is not always understood is looking at what would happen if you are now unable to undertake your everyday tasks as a result of your injury and which you were previously responsible for, such as gardening or vacuuming. You may be unable to afford a cleaner to come to your home and need to rely on friends or family to undertake these tasks without payment. This is called gratuitous care and an injured person can make a claim in this area. This is the first type of care that can be claimed.
Care, within the context of a personal injury claim, relates to the assistance and support needed by you the injured individual due to your injuries. This encapsulates a broad spectrum of support including:
i. Personal care – this includes assistance with daily activities such as bathing, dressing, and personal hygiene.
ii. Domestic assistance – this includes aid with household chores, cooking, cleaning, and other domestic tasks.
There are two types of care that can be claimed which are “paid care” and “gratuitous care”.
Paid care can be claimed when the expense has resulted from your injury. The care must only be claimed where you can establish that the care has only been provided since your accident. If you were receiving paid care, such as someone attending your property for lawn and yard maintenance, you can only make a claim for the increase in your need for that paid care, not the entire amount. Once a claim for past paid care has been established and made out, you can also make a claim for future paid care which details the amount of paid care that you will need into the future because of your injury.
Gratuitous care means the provision of domestic services, other than paid services, that are provided to you by a member of your family, within your household (not including housemates), or a friend. The care or service provided to you must be more than mere love and emotional support.
The domestic tasks you require might include cleaning, cooking, grocery shopping and maintenance around your home. To be able to claim gratuitous care you 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 you meet these requirements a claim for gratuitous care can be made for the equivalent amount of hours in which the care was provided to you. A claim for gratuitous care required into the future can also be made when you can demonstrate past gratuitous care.
To claim care as a head of damage, it is important to establish the necessity for such support resulting from your injury. This typically involves presenting evidence and documentation that demonstrates:
i. The nature and extent of the injuries you have sustained.
ii. The impact of these injuries on your ability to perform your daily tasks.
iii. The specific care and assistance that is now required by you due to the injuries you have sustained.
Your lawyer will discuss with you how this evidence is obtained to support your claim.
Calculating care costs
Quantifying care costs involves an in-depth assessment of various components, including the hourly rates for professional caregivers, and potential future care requirements. Again, this will involve your lawyer obtaining expert evidence to support a claim on your behalf.
In the landscape of personal injury claims governed by the Act care stands as a vital head of damage, acknowledging the multifaceted support required by you, the injured person. Understanding the nuances of care, its assessment, and quantification is essential in navigating the legal complexities surrounding a personal injury claim. In essence, care, as a head of damage, represents the recognition of the tangible needs arising from your injury, ensuring that you receive adequate support and compensation for the challenges you face due to the negligence of another party. You can contact us at Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page if you have been injured and one of our lawyers will assist you.