Care and assistance claims in personal injury
Care and assistance claims can be technical and require expert legal advice, writes Kevin Wong.
Accidents resulting in injury can be devastating. They can completely disrupt a person’s normal life, resulting in the person requiring assistance to do tasks that they would normally do themselves.
Accident victims who have experienced significant disruption to their normal lives must have an experienced lawyer who has knowledge in care and assistance claims to ensure the victim receives every last cent they are entitled to at settlement. Care and assistance claims can be made in: public liability, motor vehicle accident, medical negligence and common law negligence workers’ compensation claims.
Legislation and common law dictate that an injured person can receive compensation for paid and unpaid services. Unpaid services is referred to as a ‘gratuitous assistance claim’.
This is a claim that is made when friends or family members provide free care services to the injured person. The injured person is entitled to claim an amount equivalent to the commercial cost of domestic and nursing services, whether in the past or future. The injured person doesn’t have to show a personal loss, rather reference to the cost in the marketplace for the provision of services is examined.
It is important to note that legislation applies to gratuitous assistance claims and a statutory threshold is imposed.
The current threshold is $6,500. If less than 40 hours of assistance is provided per week, the appropriate rate needs to be used in calculations.
If more than 40 hours of assistance is provided per week, the amount of damages is not to exceed the amount calculated on a weekly basis at the rate of the average weekly earnings of all employees in Western Australia for the relevant quarter (being the quarter in which the services were provided).
Gratuitous assistance claims are quite common and often arise when an injured person needs help with:
• domestic tasks, such as meal preparation and cleaning;
• personal care such as bathing, dressing and changing bandages;
• transportation to and from medical appointments;
• shopping; and
• emotional support and comfort while in hospital. When the injured person receives a therapeutic benefit from hospital visits, the injured person can claim a daily allowance for associated expenses with friends or family members attending hospital, including lost earnings and travel expenses.
A paid services claim may arise when the injured person has to pay, for example:
• for home maintenance work, e.g. ‘handyman’ activities, gardening or mowing the lawn; and
• a carer or nurse to live within the injured person’s premises or travel to the premises on a regular basis.
When claiming for gratuitous assistance or paid services, the medical evidence must prove that there was a medical need for the assistance/services to be provided and that the need arose as a result of the accident-related injury.
In traumatic injury cases, assessment by a specialist occupational therapist analysing the care services required is necessary.
An experienced lawyer will provide advice to an injured person to keep records of care and assistance provided, e.g. to record the dates, hours and types of assistance. Advice will be provided that receipts for paid services must be kept to prove the expense.
Kevin Wong is a personal injury lawyer at Friedman Lurie Singh & D'Angelo.
This article refers to Western Australian legislation. Check the relevant legislation in your state or territory.