Compensation Claims & the Importance of Accurate Records

CASE REVIEW:  CHAPMAN v WIDE BAY HOSPITAL AND HEALTH SERVICE - [2022] QDC 271 ("CHAPMAN")

As of 2 December 2022, the District Court of Queensland has demonstrated the importance of maintaining concurrent and detailed records to support claims for compensation.

All compensation claims need to be supported by concurrent proof such as invoices, receipts, medical documents, etc. Insurers and lawyers do not take a claimant’s word for it when evaluating a claim and need written proof that their loss is real.

In particular, proof is critical for claims for gratuitous services, under Section 59 of the Civil Liability Act (“CLA”). Gratuitous services are voluntary services provided by family or friends that you would have done if you were not injured.

These services can be compensated based on the time spent by the provider and the standard commercial cost to receive this service. Under the CLA, the following requirements must be met to receive compensation: 

1. For services that are necessary for the injured person; and
2. The injured person’s need for the services arises solely out of the injury, for which compensation is being sought; and
3. These services are provided or are to be provided for at least six hours per week and for at least six months following the injury.

Decision in Chapman - Past & Future Care

This matter related to a claim for compensation from alleged medical negligence, causing significant injuries to the Plaintiff. As a result, she was significantly incapacitated and relied on her husband and family to take over her daily jobs. The Plaintiff sought compensation for the gratuitous services her husband provided to her.

The Plaintiff sought $125,000.00 for past care and provided an estimate of the hours of care her husband provided from December 2015 to date, being 2022. The Plaintiff’s claim was supported by her husband however, it was purely based on her recollection and not on any concurrent documents. The Plaintiff had not kept a diary or any other record from 2015 regarding the services from her husband and family.

Past Care

The Court held reservations as to the reasonableness of the estimate for past care claimed by the Plaintiff and made significant reductions on the basis of the following: 

1. As the Plaintiff claimed gratuitous services for her husband, the Court noted that she also lived with at least one son who also provided care and assistance to her until about April 2022. It had to be determined what services were done to assist her and what was done for their own interests.
2. Secondly, the Court noted that a number of services performed by the husband were done out of loyalty to the Plaintiff and not due to her injuries. As such, tasks such as making sure the Plaintiff paid bills were not considered necessary, and compensation could not be awarded.
3. Thirdly, and arguably most importantly, the Court took issue with the fact that the Plaintiff in making her estimate, had to recall events which happened up to about 7 years prior. The Court held that if these matters could be proved more clearly, the estimates should be conservative.  Further, the Court found that the Plaintiff’s recollection of events up to 7 years ago were imprecise and inconsistent. Services claimed, such as fetching items or assistance driving to work, when the Plaintiff had returned to work 2 months prior, were inconsistent and partially discounted.  The Plaintiff was also unable to provide an explanation as to how she arrived at certain dates, providing further ambiguity.

4. The Court also disregarded services provided by the Plaintiff’s husband whilst she was in Hospital. Although services were performed by the husband, they would have been provided by the nursing staff.

The Court made a significant reduction for past care to $47,100.00.

Future Care

In relation to compensation for future care needed from the Plaintiff’s husband, the Plaintiff sought $266,000.00. This was considered plainly unrealistic by the Court.

The Court noted the medical evidence of likely recovery from physical and psychological injuries to return to certain domestic activities unassisted.

The Court considered an amount of $16,335.00 if the future medical treatment was successful, maximising the Plaintiff’s recovery. It also considered that medical treatment may not be entirely successful, in which case the Plaintiff will need assistance for her life expectancy of 40 years. Therefore, the Court awarded $40,000.00 for future care.

Important points when claiming for care

From the decision of Chapman, the Court has highlighted the need for claims for gratuitous care to be precise, supported by adequate reasoning and proof.

As mentioned above, services performed out of a family member’s loyalty or good faith will not be compensated unless it provides definitive benefit to the injured person. Similarly, it must be shown that providers are acting to provide help to an injured person and not simply looking after their own interests.

Most services provided to someone in hospital care are unlikely to be compensated as paid physicians and nurses would provide that service anyway. It is possible to be compensated for gratuitous services provided when the injured person is in hospital care however, it is generally unlikely.

The most practical and important aspect is the requirement of evidence to support a claim for gratuitous care. In this decision, the Court has placed importance on having proof but also having concurrent proof.

The Court has identified that a person’s basic recollection and estimate over 7 years to be imprecise and fraught with inconsistencies. If the evidence can be gathered from the date of the injury, it will allow more accurate recollection and minimise possible speculation on any perceived inconsistencies.

How we can help

Claims for gratuitous care can have the potential to be quite substantial. Careful consideration needs to be given to whether the threshold can be achieved.

Keeping a record of the care and assistance provided to you is very important. It allows you to keep a paper trail of all events and milestones as to progress. It also allows easy and accurate recollection to provide to your representative, without the risk of undervaluing the care provided. This can mean the difference between having an accurate claim for care and assistance, or possibly not having a claim at all.

These are complex matters and you should seek legal advice before considering making or accepting an offer from insurers and at fault parties.

Contact our compensation team today on (07) 4963 2000 or through our online contact form below should you require assistance.