The Queensland Supreme Court awards a seriously ill man $655,156 for past and future gratuitous care.
- What evidence needs to be considered when calculating damages for past and future gratuitous care.
The plaintiff, Mr Thomson, a 65 year old man, was employed by the second defendant (Queensland Police – Citizens Youth Welfare Association) as a project supervisor. In late 2011, he was assigned to supervise a project to upgrade the cattle yards at the Southport High School Farm operated by the first defendant (the State of Queensland). Consequently, he contracted Q fever in January 2012, which later progressed to Q fever Debility Syndrome. The illness debilitated the plaintiff both physically and psychologically to the extent that he now requires full-time care and has been unable to return to work. As a consequence of the impact on the plaintiff’s quality of life, he developed a chronic major depressive disorder and adjustment disorder.
The Court awarded the plaintiff damages in the amount of $1,179,872. Of notable interest was the award of $311,750 for past gratuitous services and $343,406 for future gratuitous services.
The plaintiff claimed 28.88 hours per week of past gratuitous care at the rate of $33 per hour. This claim was on the grounds that the plaintiff’s diagnosis necessitated a high degree of care, even on the alleged 'good days'. The first defendant submitted that the claim was excessive, not supported by a contemporary note recording of any kind, and did not take account of the fact that any care provided to the plaintiff was influenced by his good and bad days. The first defendant further submitted that the claim of past care was based on the evidence provided by the plaintiff and his wife, and not corroborated by any other witnesses. The Court observed that it considers objective facts proved independent of the plaintiff’s testimony, including the contents of contemporaneous documents if they are reliable. The first defendant did not point to any reliable, independent, objective evidence which discredited the plaintiff’s claim, or his and his wife’s evidence.
The Court adopted an average figure of 25 hours per week for past care and held that the reasonableness of this figure was supported by the high level of care required and the varying times of day which it was required. The fact that some days were better than others did not reduce the plaintiff’s need for care to nil or a small amount on good days. Even on good days, he requires a high level of care and support.
The plaintiff claimed 30.38 hours per week for future gratuitous care at the rate of $33 per hour for 22 years calculated on the 5% discount tables and reduced by 15% for contingencies, which totalled $599,919.93. The Court deemed this claim excessive and further held that it should be discounted by more than 15% for contingencies. The Court held that although the plaintiff was fit prior to contracting Q fever, there were the contingencies of supervening illnesses and injuries and the corresponding need for care that needed to be taken into consideration. Consequently, the Court held that an appropriate assessment for future care was 25 hours per week over a period of 15 years, further reduced by 25% for contingencies.
Implications for you
When making decisions on gratuitous care, the Courts will place significant weight on the plaintiff’s evidence in respect of their self reported capacity to undertake the tasks of daily living. In turn defendants will need to present objective evidence, in order to successfully discredit the plaintiff’s claim.