Claim injury care & assistance

There are a number of different types of care that may be able to be claimed. The most common are: 

• Paid care – which is where a person engages and pays for the services of a cleaner, gardener, home maintenance worker etc. 
• Gratuitous care – which is where a person receives assistance with the above tasks, usually by a family member or friend (or both), but doesn’t pay for those services.

There are thresholds and restrictions that apply when claiming for both paid and gratuitous care and assistance in a personal injury claim. Under the Civil Liability Act 2003 (CLA), the legislation which applies to non work injury claims (motor accident claims and public liability claims) in Queensland, the restrictions are detailed in our next section…

In order to be claimed, paid care must:

• Have only been provided as a result of the accident injuries and since the accident.
• Be reasonable.

If you were getting paid care before an accident or injury, and these needs increase as a result of the injuries, you can claim the amount of the increase in the need for care. You can also claim the cost of future care on the basis of your future care needs.

In order to be claimed, gratuitous care must: Be provided at a rate of at least six hours per week for a minimum of six months.

This threshold can be met in the period after the accident, or in the future if the medical experts believe you will need such care in the future.

Must have only been provided as a result of the accident injuries and since the accident. Be reasonable.

If the above requirements are met, you can claim for the equivalent cost of the gratuitous care and assistance that has been provided to you since the accident at the rate decided by the Court, which is usually in accordance with current commercial rates.

You can also claim the cost of future care on the basis of your future care needs.

Yes, because of your accident injury it is therefore very important that you keep a record of the care and assistance provided to you following your car, work or other accident causing your injury.

You should keep a record of what care is provided to you, when it was provided, how much care was provided, who provided you with that care, and whether it was paid for or provided to you without charge.

Let’s use an example about ‘John’, he suffered whiplash injuries to his neck and lower back in a car accident.

As a consequence he has needed help with his domestic duties, home maintenance and some personal care tasks.

John previously shared the household chores with his girlfriend who he lives with, but since the accident his girlfriend and his parents have had to assist him with some of his personal care tasks and most of the domestic and home maintenance chores that he did prior to the car accident.

Keeping a record of the care and assistance provided to you due to your injuries is very important, as it can mean the difference between having a claim for care and assistance, or not having such a claim at all.

This way your are able to provide a summary of that care given as per our example ‘John’ in this case as follows:

• John’s girlfriend drove him to and from medical appointments errands for two hours per week over a period of four weeks after the motor vehicle accident.
• John’s girlfriend had to assist him with getting in and out of bed and chairs, bathing, dressing, washing his hair, fetching things as he was demobilised, changing bed linen, for two hours per day for one week after the accident. This then reduced to one hour per day over the next three weeks, and thereafter has reduced to two hours per week.
• John’s parents performed all the cooking, cleaning, laundry, grocery shopping, yard, vehicle, pool and home maintenance tasks that he normally undertook which took one and a half hours per day for four weeks following his car accident. This reduced over the next three months to an average of one hour per day, and thereafter reduced to three hours per week.
• John’s girlfriend provided him with neck and back massages to relieve pain and spasms for 20 minutes per day for two weeks after the car accident.

If you paid for the care, you need to keep a record of the payments made and obtain receipts evidencing such payments.

Even taxi services can be considered paid care where you are unable to drive due to your injuries and need to engage someone to drive you.

In certain special cases of injury, the gratuitous domestic care and assistance that can be claimed for extends past the care and assistance required by an injured claimant themselves.

It includes other persons who, for varying reasons, the claimant may have been providing domestic care and assistance to prior to the accident.

Let’s look where a mother who has three small children, or looks after her elderly and disabled grandmother who resides in her home, is severely injured in an accident and then has difficulty caring for her children due to her injuries.

If the required criteria set out in the Civil Liability Act 2003 and Regulations is met, the mother’s claim for care and assistance due to her accident injuries is not limited to her own care and assistance needs, but may extend also to the domestic care needs of her children.

The threshold criteria that requires to be met for an entitlement to claim such extended care is that the injured claimant must achieve a General Damages award for the injuries they sustained in the accident, under the Civil Liability Act 2003 in the amount of the following, or more :

• If the injury occurred post 01/07/2010 – $35,340.00;
• If the injury occurred post 01/07/2011 – $36,400.00;
• If the injury occurred post 01/07/2012 – $38,390.00;
• If the injury occurred post 01/07/2013 – $40,460.00;
• If the injury occurred post 01/07/2014 – $41,990.00;
• If the injury occurred post 01/07/2015 – $43,020.00.

This means that the claimant must have sustained a significant injury in the accident.

In most work injury claims, there are different thresholds and restrictions that apply when claiming for paid or gratuitous care under the Workers’ Compensation & Rehabilitation Act 2003 (WCRA).

When we say ‘most’, there are cases where these restrictions don’t apply and are outlined in more detail below.

Under the WCRA there are limitations on claiming for care and assistance provided to an injured worker with their domestic, personal care, vehicle and home maintenance tasks following a work accident in a work injury claim. These are as follows:

• Paid Care As with motor vehicle and public liability claims, any paid care must be reasonably required as a result of a person’s injuries in order to be claimed.

You can claim for paid care you will require due to your injuries in the future, but only if:

• You have been paying for such care since the accident, or
• The majority of such care has been paid for and not provided as gratuitous care since the accident.
• Gratuitous Care In most work injury claims, you cannot claim for gratuitous care provided to you because of your injuries, unless the gratuitous care has been provided by someone other than a member of your family, your household or a friend.

However, you may be able to claim for care that you require due to your injuries in the future (whether gratuitous or paid care), if, since the work accident:

• You have not received any assistance with those domestic, personal care, vehicle or home maintenance tasks for which you are claiming future care. An example of this is where an injured worker lives alone and does not have anyone to assist them with their care needs and cannot afford to pay for care. Or,

The care that you are claiming for in the future has been provided to you since the work accident, gratuitously by someone other than a member of your family, your household or a friend.

An example of this is where an injured worker is provided with assistance by a community service or charitable organization without charge, or at less than commercial rates.

Where a case involves overlapping claims under the Workers’ Compensation and Rehabilitation Act 2003, the Motor Accident Insurance Act 1994 and/or the Personal Injury Proceedings Act 2002, the rules about care as set out in these statutes do not apply.

In such cases, the common law rules of care apply, and all care provided to an injured claimant, whether gratuitously or as paid care, can be claimed.

No thresholds apply, but the care must still be reasonable and required as a result of the injuries.

Overlapping claims are not uncommon. Some examples are:

• A worker who is injured in a motor vehicle accident whilst driving a courier or other delivery van in the course of undertaking his or her work. The worker’s claim for lump sum compensation will still be against the CTP Insurer of the vehicle at fault, but because the worker was working (and not just driving to or from work), the restrictions under the CLA do not apply.
• A worker who slips and falls on defective stairs in the workplace where the stairs are owned by a landlord who is not the employer. In such case, the worker potentially has a claim against both their employer and the landlord. The restrictions under the WCRA will stay apply to their claim against their employer, but the restrictions under the CLA will not apply to their claim against the landlord.