Monetising the care your family provides.
Now that we’ve calculated the biggest head of damage, we can move onto the second biggest – care.'
And don’t worry, this one’s easier.
Victims of medical negligence will often find themselves relying on relatives, partners, and other persons for care and assistance.
As opposed to commercially paid or hired help, this type of care is referred to as ‘gratuitous’ – or, free of charge.
Gratuitous care simply refers to the services provided by family members to assist in the day-to-day care of a medical negligence victim.
But, the addition of this care can often have a heavy impact on the providers, taking time out of their social lives, work, and other day-to-day duties.
To compensate for this, the court offers an award for gratuitous care services.
This award is calculated with reference to the market (or commercial) cost of the services, with the extent of coverage stretching far and wide across common duties such as:
Day-to-day duties;
Personal duties;
Home and maintenance duties;
Before we jump in, we wanted to cover off some important limitations, or criteria, that apply to gratuitous care payouts.
EXAMPLE: JESS
Jess experienced birth trauma as a result of her midwife’s negligence. Brett, her husband, now has to take care of day-to-day domestic duties - finishing work early to make sure dinner is cooked, taking time out of his day to provide the necessary care for their newborn baby where Jess normally would.
On top of this, he’s driving her to and from her appointments, helping her buy medication, and running her errands for her.
In this situation, the court would provide an award for gratuitous care to pay for Brett’s time. The amount is based on the commercial price for these services – in other words, what would be the cost of hiring someone commercially to do this?
We’ll continue this in the next section, but what we first need to consider is whether or not Brett is actually eligible to claim for these services. Let’s cover off some of the limitations first.
To qualify for gratuitous care compensation, you need to fulfil the following:
- Gratuitous care must be provided for at least six hours per week for at least six months;
- Must be provided as a result of the accident injuries;
- Must be reasonable.
EXAMPLE: JESS
This would mean that Brett can’t be claiming for accommodation and flights to Cairns to collect medication when it is available at the corner pharmacy – it has to be reasonable.
It also has to be provided for over 6 hours a week for six months and needs to be as a result of the injuries. If Jess had breast cancer and Brett had already been providing care for this, those hours of care would not be paid for – it would have to be anything in addition that is a result of the medical negligence.
Claiming for gratuitous care is also restricted to services provided by:
- Parents;
- Spouses;
- Domestic partners;
- Children.
EXAMPLE: JESS
In Jess’ situation, Brett qualifies for gratuitous care compensation because he’s her spouse. However, a close friend who comes over once a week to water her plants with her and has a tea cannot be considered eligible.
The level of award is capped at 4 x the state average weekly earnings unless the court agrees that:
- The gratuitous services are reasonably required by the injured person; and
- It would be necessary to engage a professional carer if the additional requirement wasn’t fulfilled by an eligible provider.
The average weekly earnings are laid out in Vincent’s Litigation Tables. It might seem like a large amount of money; however, for people who are severely immobilised from their injury can find their care reaching these levels.
For most, however, this won’t be a concern
EXAMPLE: JESS
At the time of Jess’s injury, the average weekly earnings in QLD were $1541.90. This means Brett can’t be granted damages in an amount exceeding $6167.60 per week without the reasoning outlined above.
Now that you’ve checked your eligibility for gratuitous care, let’s jump into calculating it.
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Want to fast track the process with our free interactive workbook?
Quantifying your Future Gratuitous Care
Quantifying the future costs can often come with greater room for disagreement because, once again, you’re predicting the future.
Despite this, we’re going to do it before past care because it can often have a larger outcome - and we’re keeping that $150,000 in mind.
To predict the future as accurately as possible, you’ll need to have evidence from a range of medical professionals. They with their recommended care services and their expectations for how long you’ll require these services.
We recommend you get one (or multiple) of these assessments before starting this section. If that’s not possible, then not to worry! Do your best to predict.
EXAMPLE: SASHA
Jess’ obstetrician might recommend 12 weeks of bed rest, six months of part-time postnatal care for the baby, three more ultrasounds in different towns, and 6 GP visits.
From this, an occupational therapist would be able to decipher what tasks Jess will and won’t be able to do, how often they will need to be done, and for what time frame.
This might be 5 hours per week for cleaning and outdoor maintenance until the end of Jess’ life.
Future Economic Loss
To start your calculation, you will need to:
The first step is working out what services you will need, and for how many hours per week.
EXAMPLE: JESS
For example, Jess’ OT has told her she needs cleaning services and outdoor maintenance services for 5 hours per week.
The next step is to estimate how many years you will need these services for.
If it’s until you pass away, you can refer to the Prospective Life Tables to see how many years the court will take into account for this.
EXAMPLE: JESS
Jess will require her 5 hours of care for the rest of her life. She is currently 40 years old, so she uses the prospective life table to work out that she has 46.47 years (on average) to account for.
For simplicity purposes, we’ll round this down to 46.
She then puts this into her table in column 1.
Find the commercial cost of these services by searching online for similar services,
noting how much they are charging, and then estimating an average.
EXAMPLE: JESS
Jess found that the average cost for cleaning services was $35 per hour and garden maintenance services were $55 per hour. She put this into her table and worked out the cost per week:
Now we can start the calculations – find the 5% multiplier using the Discount Tables that corresponds to how many years you will need the services (answer to Q2).
EXAMPLE: JESS
For Jess, the 5% multiplier of 46 years is 956.
The final step is then multiplying the weekly cost from Q3 with the 5% multiplier you found in Q4.
Weekly Care Cost (Q3)
x
5% Multiplier of Years Requiring Care (Q4)
=
Future gratuitous care cost
EXAMPLE: SASHA
Sasha’s 5% multiplier was 956 and her weekly cost was $195, meaning her future gratuitous care is worth $186,420.
Sasha's future gratuitous care costs
956
x
$195
=
$186,420
You should note this number on your own Schedule of Damages table to keep track of where you’re at.
Now that we’ve covered your future care costs, lets take a look at your past care.
One download between you and your key to compensation...
Want to fast track the process with our free interactive workbook?
Quantifying your Past Gratuitous Care
Now that we’ve quantified your future care costs – the significant costs – we can start quantifying the care you’ve already received.
And doing that isn’t too hard.
What you should first do is list out all the care you’ve received and roughly how many hours per week you’ve received it.
EXAMPLE: JESS
For example, Jess and Brett listed:
Then, you can use the information you found from the future care section to note the commercial costs and the total cost. The total cost will be Hours/wk x Commercial $/Hr x Weeks.
EXAMPLE: JESS
For Jess and Brett, their past care and commercial predictions might look a little like this:
Jess's past gratuitous care costs
$33,870
Putting it all together.
Now you can add this to your schedule of damages.
It’s recommended, at this point, to add up your damages so far to see if you’ve reached the $150,000 quantum threshold.
Below is Jess's example:
By doing this, you can check if you can surpass the remainder of this workbook and start working out how you’re going to hold your doctor accountable.
If you haven’t passed the threshold yet, don’t worry.
We’re about to take on our third most significant head of damage (from a quantum perspective) – monetising your future pain and suffering.
Next article: What is pain and suffering and how is it calculated?