Gratuitous care decisions reviewed by QCA

 Waller v Suncorp Metway Insurance Limited [2010] QCA 17

 

Their Honours Chesterman JA and A Lyons J reviewed the leading decisions with regard to gratuitous care and in particular the decision of Goode v Thompson and Suncorp Metway Insurance Limited [2002] QCA 138 in the context of agency fees above the cost of employment of the person and diverged substantially. The Chief Justice concurred with Chesterman JA and the appeal succeeded on the point of “case management” fees claimed by the plaintiff’s mother as being recoverable in accordance with Van Gervan v Fenton (1992) 175 CLR 327, but failed on the agency fees, together with the claim for  holidays and care in hospital.

Chesterman JA:

[19] The arguments centred on whether the value of the services required to fulfil the appellant’s needs should be assessed by reference to what a carer would be paid or to what an employment agency who engages carers and makes them available to persons such as the appellant would charge. The higher hourly rates I mentioned are those charged by an agency. The second approach was favoured by the appellant who described the amounts charged by the agency as the “full commercial rate”. The difference in amount is explained by the agency’s profit margin and by its obligation as employer to fund the ordinary on-costs of employment: holiday, long service and sickness entitlements, superannuation contributions and the like.

[20] There was evidence that carers who provided the sorts of services which the appellant needed could be engaged pursuant to an industrial award at the rate of $18.92 for permanent employees and $22.70 for casual employees.

[21] This point arises in the assessment of damages for both past and future care. The trial judge assessed past care by valuing Mrs Waller’s services as though she were an employed carer. His Honour did not regard the higher rate which would have been paid to an employment agency as appropriate because Mrs Waller’s services had not been engaged in that way and she had provided her services on a long term, permanent basis.

[22] The starting point is, as the appellant’s counsel submitted, the principle established by Van Gervan v Fenton (1992) 175 CLR 327 that, as a general rule, the market cost of services provided to an injured person is the proper method of assessing the reasonable value of those services. The appellant submitted however that the point is precluded in his favour by a decision of this Court, Goode v Thompson [2002] QCA 138. Goode was a severely disabled plaintiff very similar in that respect to the appellant. Much of his need for services and care were provided by his parents, but in calculating the value of the services he needed the trial judge “used rates which incorporated an agency fee payable to a commercial organisation in the business of providing the necessary carers.”1

[23] The appellant in that case argued that the amount of the agency fee should not have been allowed for the period in which the plaintiff’s care would be provided by family members. After a review of the authorities the Court concluded: “[24] Although the issue of whether an administrative charge such as an agency fee charged by a commercial organisation which provides carers was not expressly considered by the High Court in either Van Gervan v Fenton or Grincelis v House, if the administrative charge is part of the market cost of the services required by an injured plaintiff, it must, subject to the qualifications expressed in Van Gervan v Fenton be included as part of the damages in respect of those services. This is illustrated by the manner in which the live-in allowance payable to a carer was included as part of the commercial cost of the care under consideration by the Full Court of the Federal Court in Grincelis v House.

[25] What is the market cost of the services which are required by a plaintiff in any particular case is a question of fact which will be affected by the nature of the services required by that plaintiff and the capacity of the plaintiff to engage and organise those services. By way of example, the plaintiff in Kars v Kars did not need to pay an agency for obtaining or organising the services which that plaintiff required, as the necessary carers were apparently readily available and she was capable of engaging and organising them.

[26] The respondent in this matter is incapable of engaging or organising the kind of care which he requires. The commercial cost of the care which he needs for the first period must therefore be calculated on the basis of the care being provided by and through a commercial organisation. Consistently with Van Gervan v Fenton, the market cost of that care must include the agency fee, even though for the first period it was anticipated by the trial judge that the care would be provided by the respondent’s parents.”

[24] The critical passage in the judgment is that the market cost of services required by a plaintiff in any particular case is a question of fact. The trial judge had found that the administrative charge was part of a market cost of the services required by the injured Goode and the damages were assessed accordingly.

[25] In Grincelis v House (1998) 84 FCR 190, considered at some length in Goode, the “commercial” cost of providing care to a severely injured plaintiff included a “living in” allowance. The care was in fact provided by his parents who lived in their own house, with the plaintiff. The Full Federal Court concluded that (207):

“The appellant’s need was for full-time care and the commercial value of it, which is the exercise to be undertaken, includes a live-in allowance.”

[26] The appellant submits that because the facts of the two cases are indistinguishable the authority of Goode constrained the trial judge to assess this head of damage by reference to the “full commercial rate”. The relevant identity was submitted to be that neither the appellant nor Goode could engage carers themselves because of their profound disabilities. Both required the services of an employment agency to provide their carers so that the rate payable to the agency rather than to the carer was appropriate in assessing damages.

[27] There is, I think, a fallacy in the submission, which is that it equates “the agency rate” per hour of providing a carer with the cost of hiring a carer. The appellant urges the Court to adopt what would be in practice an arbitrary rule. In those cases in which a plaintiff, by reason of his injuries, cannot himself engage the carers he needs the market cost of providing the services will be that which an employment agency would charge; in other cases where a plaintiff can engage the carers the market cost will be the amount paid to the carers. Such a basis for distinction is not, I think, realistic and is too inflexible to allow for assessments to be made in particular cases. It is unrealistic because the appellant is incapable of engaging carers on either basis, either by himself or by engaging an employment agency to provide him with carers. Both tasks must be performed by someone on his behalf. If that person can reasonably engage carers directly and so avoid the “agency fee” there is no reason I can see in fact or principle why damages should be assessed by reference to the higher rate.

[28] Van Gervan stressed that it was the reasonable value of an injured plaintiff’s need for services that should be allowed. That value will usually be the market cost of providing those services, but only where market cost is reasonable. Mason CJ, Toohey and McHugh JJ (at 334) pointed out that it is the reasonable cost of services which a defendant must pay, and said, (at 335):

“… fairness to the provider as well as to the plaintiff requires that the plaintiff should have the ability to pay the provider a sum equivalent to what the provider would earn if he or she was supplying those services in the marketplace.”

[29] The evidence established that a carer engaged to satisfy the appellant’s needs would earn $18.92 per hour if employed on a permanent basis and $22.70 per hour if employed on a casual basis. The carer’s services could be provided at a higher cost if she were engaged via an employment agency but the higher rate is not necessarily reasonable, or an appropriate figure to adopt for the assessment of damages. The monetary value of the appellant’s loss is the market cost of the services he requires by reason of his injuries. By “market cost” is meant what it would cost to buy the services of a carer on the open labour market.

[30] In this case two rates were advanced as being the market rate, or cost, of providing the requisite services. There is the rate at which a carer would be paid, preferred by the trial judge, and the higher rate, advanced by the appellant, which the employer of the carer would charge for her services. Both are “market costs”. They differ because they reflect the supply of different services.

[31] The appellant submitted that the quantification of the value of the past care provided to the plaintiff must be undertaken “at full market rates”. Goode was referred to as authority for the proposition that the appellant’s future care needs must be compensated for at “full commercial rates”. The significance of the adjective “full” was not discussed. The term seems more pejorative than explanatory, and is apt to distract attention from the relevant inquiry, which is the ascertainment of the market cost of providing an injured plaintiff with the services he needs.

[32] The appellant is entitled to the reasonable market costs of the services he needs. He is not to be awarded damages to pay for services he does not need: nor, if the same services can be provided in a competitive market at differential rates, to the higher rate.

[33] The point at issue is whether it was wrong for the trial judge to find that the market cost of providing the needed services to the appellant was what the service provider would earn, what it would cost to employ her, rather than what the agency would charge in addition for its provision of the carer’s services. The appellant’s submission was that Goode determined the point outcome in his favour. But what the court said in Goode (at [24]) was that:

“… if the administrative charge is part of the market cost of the services required … it must … be included as part of the damages ….” (emphasis added)

The question to be answered is one of fact: what is the market cost of providing the needed services? In particular does it, in this case, include the add on costs of employment charged by the agency? The answer requires an analysis of what services the appellant needs. The appellant’s contention is that at all times and in all places an injured plaintiff is entitled, as a principle of law, to have his need for services valued by reference to engaging an agency to provide carers regardless of the circumstance that a carer could be engaged directly, by someone on his behalf, at a lower cost. The contention is untenable.

[34] There will, of course, be cases in which a plaintiff’s particular needs will be reasonably met by paying an employment agency to supply carers. In such cases

the market cost of meeting that particular plaintiff’s needs will be the amount which includes the “agency fee”. In this case however, the learned trial judge found that only part of the appellant’s needs for care is reasonably met by the purchase of an employment agency’s services. The other part can, for the next two decades, be met by the purchase of services on behalf of the appellant without the intermediation of an employment agency. Unless this finding of fact can be successfully challenged the monetary conclusion must stand.

[35] The appellant did not seek to assail the finding of fact upon which the assessment was made. Rather the submission was that, as a matter of law, the trial judge was bound to assess the value of the appellant’s need for future care at the agency charge out rate. The authorities do not compel that result. The market costs of providing services is a question of fact. The evidence at trial supported the trial judge’s assessment. It established that carers could be engaged and paid at the award rate and that it was not necessary to purchase their services through an employment agency. Given that the services had been in the past, and will continue to be provided by Mrs Waller on a continuous basis the award rate represented the reasonable and appropriate market cost.

[36] In my opinion the assessment should have been made by reference to the casual rate not the permanent rate. If one assumes, for the purposes of the assessment, that a permanent carer was to be employed then the appellant, in addition to paying the carer’s hourly rate of $18.92 would have to make provision for those costs that an employer must pay to provide the employee with superannuation, sick leave etc. This cost must be included in the rate taken as the basis for assessment. Alternatively the higher casual rate should be paid on the assumption that the casual employee would make her own provision for her entitlements. The trial judge made his assessment by reference to an hourly rate of $20 not, as I think it should have been, $22.70. However the adjustment I mentioned which flows from the alteration in the discount rate means that, in effect, the trial judge’s assessment has as its reference point an hourly rate of a little over $23.

[37] There remains the point that the appellant himself cannot organise the engagement of carers. Someone must do that for him. In the past the role has been taken by his mother. The appellant’s need for someone to provide that service, in addition to caring for him, is another need which sounds in damages. It was not recognised in the award but can be dealt with in the appellant’s challenge to the assessment of damages under the head of case management.

[38] It should perhaps be noted that the only complaint against the assessment for this head of damages was the choice of market rate to determine the value of the plaintiff’s need for services. As I have pointed out the appellant’s challenge did not attack any of the facts found by the trial judge. There was no criticism of the number of hours per week for which the trial judge concluded the services of a carer would be needed. The appellant’s only point was one of law, which I have described.

[39] I would reject the appellant’s argument as to the market cost of carers.

1 [2002] QCA 138 para 15.  

A Lyons J:

[77] This aspect of what is the appropriate compensation for care which is provided on an “as required” or “on call” basis was also discussed by Ambrose J in the decision at first instance in Goode v Thompson:11 “[85] One matter that requires consideration is the fact that, although the plaintiff’s mother seems to be constantly on call during both the waking and sleeping hours of the plaintiff, in fact, she manages to look after the rest of the family and the house and pursue her own interests and sleep most nights without undue disturbance. It is contended for the defendant that it would be ridiculous to assess damages for past Griffiths v Kerkemeyer care on the basis of the costs of a commercially provided carer or carers in attendance upon the plaintiff (and particularly during the night time), in case their services are required from time to time, at the commercial rates to which I have referred. Further, it is contended that on the facts of the present case with respect to past care – whatever the future may hold in this regard – agent’s fees have not been paid or incurred. It is said that it would be quite unfair to the defendant to require it to pay damages assessed on the basis that gratuitous care provided by the plaintiff’s mother and other members of his family should be valued on what it would have cost had it been provided through an agent charging fees of the sort indicated above to provide carers whose hourly rates include ‘sleep’ ‘weekend’ and ‘Public Holiday’ rates.

[86] In my view, however, while the principle in Griffiths v Kerkemeyer and Van Gervan v Fenton remains applicable, it is difficult to see how such ‘unfairness’ may be avoided.”

[78] This approach was confirmed on appeal.

[79] Therefore, it is clear that the full commercial rate must be paid for the hours that a carer is in attendance, even if their services are only required from time to time or they are simply “on call.” As I have indicated, the learned trial judge in the present case considered that the assumption that there was a need for gratuitous care for all hours other than those provided commercially during the 24 hour period was not valid. In my view, the assumption of 24 hour care is necessitated by the authorities once there is clear evidence that 24 hour care is required. The calculations must be made on this basis. Therefore, the award for damages for gratuitous care must include a component for 24 hour care and at the full commercial or “market rates”.

What is the market rate?

[80] The question of the market rate of care is relevant to an analysis of past gratuitous care as well as the calculation of damages for future care and services. The underlying principles in relation to an assessment of the market rate of care were enunciated by Ambrose J in Goode v Thompson12 at first instance:

“[77] In Van Gervan v Fenton (1992) 175 CLR 327 it was held that damages payable under a Griffiths v Kerkemeyer claim are to be assessed not by reference to the actual costs that would be payable by the plaintiff but by reference to the market cost of providing those services. At page 335 in the judgment of Mason CJ, Toohey and McHugh JJ it was observed –

‘It does not seem reasonable that the defendant’s liability to pay damages should be reduced at the indirect expense of the provider by invoking notions of marital or family obligation to provide the services free of charge or at less than market rates. Yet post-Griffiths awards have been reduced on this or similar theories. Moreover, a plaintiff should be entitled to arrange his or her affairs in the way in which that person pleases and should not be constrained by monetary considerations from dispensing with gratuitous services and obtaining outside services if they are desired. Indeed, the relationship between the provider and the plaintiff may continue to exist in some

cases only because outside help is able to be obtained. Secondly, since there is no binding agreement with the provider to continue to provide the services, the Court would have to make a finding as to whether the care would continue to be provided and, if so, for how long. The task of reliably determining whether a person will continue to provide personal services on a voluntary basis is much more difficult than the task of determining the traditional types of hypotheticals which come before the courts in damages cases, such as whether a plaintiff is likely to obtain employment or whether a medical condition is likely to improve or worsen…

The use of the market cost criterion enables the plaintiff to be properly compensated by the award of a reasonable sum whether or not the gratuitous care provider continues to provide that care.’

[78] In Marsland v Andjelic (1993) 31 NSWLR 162 Kirby P and Meagher JA observed at 174 –

‘However, in light of the decision in Van Gervan, it would appear that what is nowadays to be taken as a reasonable objective measure of damages will invariably be the commercial market cost.’

[79] They went on to observe that it is wrong to reduce the quantum of damages for support which would ‘commonly be expected from a member of the family’; to do so was to proceed contrary to the principle laid down in Van Gervan.

[80] In Grincelis v House (1998) 84 FCR 190 the Federal Court of Australia held that satisfaction of the appellant’s need for full time care was the commercial value of that care which included a live-in allowance for a commercial care-giver. The care had in fact been rendered by the plaintiff’s parents and a live-in allowance initially had not been included. Hill and Kiefel JJ at 207 observed –

‘In our respectful view the only basis apparent from the Master’s reasons for what is a very substantial reduction in the award for this head was a concern that the cost of the parent’s services appeared to be too much. The evidence however required such a conclusion, it follows in our view that the award must be increased… .’”

[81] It is therefore clear that damages are assessed not by reference to the actual costs that would be payable by the plaintiff, but by reference to the market cost of providing those services. The Court of Appeal in Goode v Thompson13 comprehensively analysed the principles and authorities and confirmed the approach that the relevant cost is the market cost. The Court also analysed the interrelated issue of whether “market rate” included an agency fee.

Future care

[12] The appellant submits that the award for future care is manifestly excessive. In calculating this award the learned trial judge divided the future into two periods. The first period was the period of 20 years following the trial which was the period which the learned trial judge assessed as that during which the capacity of the respondent’s parents to continue to provide the sort of gratuitous care which they had provided for the past five years would continue. The second period of the next 40 years to follow that first period was when the learned trial judge found that gratuitous future care would cease and be replaced by professional care which in all likelihood would be procured through a commercial organisation.

[13] After referring to the decision of the Court of Appeal in Mott v Fire and All Risks Insurance Co Ltd [2000] 2 QdR 34 where it was held that an award for damages for future gratuitous care must be assessed by reference to the 3% discount tables, but when the future care ceases to be gratuitous, it is necessary to use the 5% discount tables pursuant to s 16(1) of the Supreme Court Act 1995, the learned trial judge stated at para [115] of his reasons for judgment: ‘Accepting that the plaintiff has a present life expectancy of about 60 years, the extraordinary result of this latest requirement in the assessment of Griffiths v Kerkemeyer damages is that an award of damages for gratuitous care will be significantly greater than one for non-gratuitous care over the same period albeit having regard to the principle in Van Gervan v Fenton as applied in Grincelis v House. Indeed, the market cost of procuring those services used to assess the Griffiths v Kerkemeyer claim should be precisely the same. The consequence, which might seem extraordinary to some, is that with respect to precisely the same future period during which Griffiths v Kerkemeyer type services will be provided to an injured plaintiff, the plaintiff will receive a significantly larger award of damages if those services are to be gratuitously provided than will another plaintiff requiring the same services at the same commercial cost who in fact must pay for those services at market rates.’

[14] The learned trial judge accepted the evidence of Ms Susan De Campo of Lifecare, an organisation which provides care services and medico-legal assessments. Ms De Campo was previously employed by Domicare which was in the business of providing in-home care. The award for future care assessed by the learned trial judge was based on Ms De Campo’s evidence.

[15] In calculating the commercial costs of the gratuitous care for each of the first and second periods, the learned trial judge used rates which incorporated an agency fee payable to a commercial organisation in the business of providing the necessary carers. The appellant did not dispute that process for the second period, but submits that no agency fee should be included in the calculation of the future care for the first period of 20 years, when it was likely that the care would be provided by the respondent’s family. The learned trial judge calculated the damages for future care for the first period at the rate of

$2,949.24 per week. The comparable rate, but exclusive of the average agency fee of $7.73 per hour, was $2,191.70 per week.

[16] The total amount for future care assessed by the learned trial judge was $3,344,421. If the agency fees were excluded from the calculation of future care for the first period, the appellant has calculated that the total assessment for future care would be $2,746,687.50 which results in a significantly lesser figure for future care than that assessed by the learned trial judge.

[17] The appellant submits that the issue of whether an administrative charge should be included in the calculation of future gratuitous care in respect of a period for which there was a finding that the gratuitous care would be provided by family members was not something which had been the subject of express finding in Van Gervan v Fenton (1992) 175 CLR 327 or Grincelis v House (2000) 201 CLR 321.

[18] On this basis the appellant sought to rely on statements made in 2 decisions of the Court of Appeal to support its argument. There was a challenge to the rate allowed for past and future care in Buckland v Biggenden Shire Council (Unreported, Qld CA Appeal No 11 of 1993, 4 May 1993). The trial judge had relied on a Domicare rate which included an administrative fee related to the work done by the agency to organise the assistance. Because the assistance in the past had been rendered by relatives and was likely to continue to be so, it was submitted on appeal that that component of the fee should not be included. The assessment of past care of $77,515 included an administrative fee of $13,475. The assessment for future care of $123,125 included an administrative fee of $29,550. Although the joint judgment of the Court referred to the applicability of such a component in applying the commercial rate not having been considered by the High Court in Van Gervan v Fenton and that there were grounds for arguing that where services were rendered by family members and the related administration was of small compass, such a component should not automatically apply, it had been found in that case, however, that some organisation had been necessary in the past and would continue to be necessary. In any case the Court found that a reduction of the award by the sum of $13,475 in respect of the past care did not warrant interference with what was otherwise a substantial award. The appeal against the inclusion of the administration fee was therefore unsuccessful.

[19] The other decision of this Court relied on by the appellant is Kars v Kars (1995) Aust Torts Reports 81-369. Damages for past gratuitous care had been assessed on the basis of $9.50 per hour where the evidence was that the market cost of the services was $12.50 per hour which allowed for $3 as an administration fee. Davies JA (with whom McPherson JA agreed) stated at 62,817:

‘Notwithstanding the absence of other evidence it is most unlikely that, in a labour market such as the present one

in which there is a high level of unemployment, particularly in unskilled labour, unskilled services such as this could not be obtained at the price charged by the commercial care giver before adding its administration charge. I would not therefore be prepared to say that in this case the learned trial Judge was wrong in accepting $9.50 per hour as the reasonable rate for the services which will be provided to the plaintiff in the future.’

[20] The injury sustained by the plaintiff in Kars v Kars was to her back, leaving her with a 35% permanent disability which prevented her from working full-time and required services such as assistance with shopping which were provided by her husband, other relatives and her neighbours. There was no finding that the plaintiff was disabled from organising such services.

[21] The respondent relies on the decision of the Full Court of the Federal Court in Grincelis v House (1998) 84 FCR 190. The plaintiff in that case suffered significant brain damage in a motor vehicle accident and required extensive daily care and supervision. The issue in respect of past gratuitous care was that it was calculated at $670,088 by reference to commercial rates, but had been allowed at only $250,000 on the basis that the care had been provided by the plaintiff’s parents with whom he resided and that the evidence did not justify allowing the full amount calculated at commercial rates. The appeal to the Full Court was heard by 5 members of the Court. In the joint judgment of Hill and Kiefel JJ (with whom the other members of the Court agreed on this issue) it was stated at 207:

‘It is clear from Van Gervan v Fenton (1992) 175 CLR 327 that the process to be undertaken is an assessment of the injured person’s need for care and services, which is then valued by reference to commercial rates charged for its provision, regardless as to whether they were in fact provided gratuitously, by relatives or partners: see also Kars v Kars (1996) 187 CLR 354. It follows that, unless there be shown some basis for differentiating between the extent of the need, or what was necessary to fulfil it, the calculation for past and present care must be the same. In this case once the appellant’s injuries stabilised the need remained the same, save that in the future it may increase somewhat should his intellectual processes further deteriorate. The cost of care likewise remains the same. It has however been calculated to include, with respect to both the past and future costs, live-in components referrable to carers. One would not think this ought to be applied to the cost of the parents’ care, since they resided with the appellant in any event. Such an approach would not however be consistent with Van Gervan. The appellant’s need was for full-time care and the commercial value of it, which is the exercise to be

undertaken, includes a live-in allowance. In our respectful view the only basis apparent from the Master’s reasons for what is a very substantial reduction in the award for this head was a concern that the cost of the parents’ services appeared to be too much. The evidence however required such a conclusion. It follows, in our view, that the award must be increased by the sum of $420,088 ($670,088 less the $250,000 awarded).’

[22] The issue in Van Gervan v Fenton was how to calculate damages for gratuitous care where there had been an assessment in the judgment under appeal of those damages by reference to the income foregone by the plaintiff’s wife who provided the care for the plaintiff on a full-time basis. The majority in the High Court held that the damages were to be assessed by the market cost of providing those services. It was stated in the joint judgment of Mason CJ and Toohey and McHugh JJ at 333-334:

‘Once it is recognised that it is the need for the services which gives the plaintiff the right to an award of damages, it follows that the damages which he or she receives are not determined by reference to the actual cost to the plaintiff of having them provided or by reference to the income forgone by the provider of the services. As Stephen J. pointed out in Griffiths, the principle laid down in Donnelly “is concerned not with what outlays of money the plaintiff will in fact incur as a consequence of his injuries but with the objective monetary ‘value’ of his loss”. Because the market cost of services is ordinarily the reasonable and objective value of the need for those services, the market cost, as a general rule, is the amount which the defendant must pay as damages. But in some cases the market cost may be too high to be the reasonable value of the services. Where, for example, the cost of providing the services at a remote location is much greater than providing those services in a densely populated area, it might be necessary to discount the market cost or value of the services needed by the plaintiff on the ground that the market cost or value was unreasonable in the circumstances. In other cases, there may be so little competition to provide the services that, judged objectively, the market cost is not the reasonable value of the services. No doubt the circumstances of particular plaintiffs may reveal other cases where the market cost of the services provided is not the reasonable value of the services reasonably needed. But the case will be rare indeed where the income forgone by the care provider is ever an appropriate guide to the fair value of the services required by the injured person. Whether the income forgone is below or above or equivalent to the market cost, the income forgone will usually be irrelevant, for

the market cost will ordinarily represent the objective value of the services. Where there is no relevant market for the services or the market cost is objectively too high to be reasonable, the income forgone may be a starting point in cases where the nature and duration of the services provided and the previous work and hours of the care provider are roughly comparable, but such cases are likely to be rare.’

[23] Van Gervan v Fenton is therefore authority for the principle that, as a general rule, the market cost or value of services provided gratuitously to an injured person is the method of assessing the reasonable value of those services.

[24] Although the issue of whether an administrative charge such as an agency fee charged by a commercial organisation which provides carers was not expressly considered by the High Court in either Van Gervan v Fenton or Grincelis v House, if the administrative charge is part of the market cost of the services required by an injured plaintiff, it must, subject to the qualifications expressed in Van Gervan v Fenton be included as part of the damages in respect of those services. This is illustrated by the manner in which the live-in allowance payable to a carer was included as part of the commercial cost of the care under consideration by the Full Court of the Federal Court in Grincelis v House.

[25] What is the market cost of the services which are required by a plaintiff in any particular case is a question of fact which will be affected by the nature of the services required by that plaintiff and the capacity of the plaintiff to engage and organise those services. By way of example, the plaintiff in Kars v Kars did not need to pay an agency for obtaining or organising the services which that plaintiff required, as the necessary carers were apparently readily available and she was capable of engaging and organising them.”

[82] Accordingly, in Van Gervan v Fenton,14 the principle was clearly established that in relation to the provision of services which are provided gratuitously, the market cost is the method to be adopted in assessing the reasonable value of those services. This principle was expressly relied upon in Goode v Thompson15 where it was stated that, if an administrative charge was part of the market cost, then generally that was the cost to be recovered.

[83] The Court also considered that the question of what the market cost was, was a question which was affected by the nature of the services required and the capacity of the plaintiff to organise those services himself. Furthermore, it is necessary to examine whether in a particular case, “the market cost may be too high to be the reasonable value of the services. … it might be necessary to discount the market cost or value of the services needed by the plaintiff on the ground that the market cost or value was unreasonable in the circumstances”.

[84] In the present case, there is no dispute that the plaintiff cannot organise the services himself. He also requires appropriate care which would generally be provided by trained family members or by qualified staff from care agencies. I consider that caring for a person with significant disabilities, to be a service which is a skilled service. Accordingly, it is necessary to examine how those services are organised if a person is unable to organise those services themselves.

[85] An agency such as “Quality Lifestyle Support” or “Open Minds”, which is an acquired brain injury support service, provides skilled and trained carers. The Service Agreement offered by “Open Minds” is in evidence and it specifically states that the agreement operates in accordance with the Service Principles set out in the Disability Services Act 2006 and the Disability Service Standards. That Service Agreement specifically provides that the organisation will employ “appropriately skilled staff” and provide “on-going and necessary client specific training” for staff as well as “supervising and appraising” staff. The agreement also states that the service also covers plans and support which cover “emergency and crisis” matters, as well as providing all bookkeeping and administration. The cost of the service provided by Open Minds or a similar agency covers the delivery of this standard of care.

[86] The next question which needs to be determined is whether the care required is readily available and accessible. On my review of the evidence, there was no evidence that appropriate care is readily or easily available outside of the provision of such care by an agency such as “Open Minds” or “Quality Lifestyle Support”. The report of Ms Coles,16 the occupational therapist, indicates that the previous carers, Daniel Toohey and Ms Kathy Dupuy, were employed by Open Minds and both received specific training to care for Luke. Currently, the three carers outside of the family are all employed by Open Minds.

[87] Dr Powell also stated that, “carers are often difficult to find in that area where Mr Waller was living”.17 She also said, “there will always be difficulty in finding appropriate carers in a country area”.18

[88] Mr John Hart, who is a director of “Quality Lifestyle Support” based in Toowoomba, gave evidence (he also gave evidence in Hills v State of Qld).19 He stated that all his support workers have at least a Certificate 3 qualification. He also stated that at times, they have had to “advertise and do additional work in recruiting” but that they had never been in a situation where they had not been able to fulfil an agreement. He also agreed that a location which is remote from a major town or city adds another level of difficulty.

[89] Mr Hart also gave an indication of the type of care required by the plaintiff, when he indicated that within the models of care his service offers, two and a half hours per week of co-ordination is incorporated. He outlined the role of these co-ordinators as follows:20 “The co-ordinators within the coordination role, they are to liaise with staff, develop rosters, work with the relevant stakeholders around the care plan or support plan for an individual, negotiate with any third parties that may be involved. Their duties include things like liaising with doctors, ensuring that regimes established by medical professionals are actually in place and are monitored and supervised, working with the client individually around their own plans and where they choose to have their support going, also certainly providing the necessary supervision to staff or to the support model to ensure that we’re compliant with the relevant governing legislation that we operate under and ensuring that our services are provided in, you know, a quality manner, professional manner.”

[90] In my view, it is important to note that organisations such as “Open Minds” and “Quality Lifestyle Support” are not employment agencies, but rather support services for people with disabilities. The emphasis of the organisation is not in finding employment for staff on their books, but rather in providing appropriate care to their clients with disabilities. Indeed, the evidence is that “Open Minds” was previously known as the “Queensland Wattle League”, a well-known organisation involved in care and advocacy for people with disabilities.

[91] The next question to examine is whether there was any evidence that the market rate sought to be paid was unreasonable. There was, in fact, no objective evidence that it was a rate that was artificially inflated because it was a country rate or for any reason. The rate sought by the plaintiff was the current going rate for the provision of that type of service by that type of agency. In my view, this is the market rate in this case. I consider that the market rate is the commercial rate that an agency charges at the relevant period in time. The fact that someone can be employed at a lower rate does not mean that that level of payment actually provides the appropriate level of care to the plaintiff, given the plaintiff’s care needs. In my view, the standard of care for which compensation is required is care which is supplied by a professional organisation. I agree with the view of Jones J in Castro v Hillery21

“[62] In the present state of authority I am compelled to assess the cost of past and future care by reference to market rates. Market rates are dictated by the necessity to have available a supply of reliable competent carers on demand. Such a situation in market terms would usually be achieved only by the engagement of a reputable agency and with that, the inevitable administration costs.”

[92] Clearly on the basis of the principles articulated in Van Gerven v Fenton,22 the period of care provided by family members for past and future care is to be compensated for at the market rate. Accordingly, if the agency fee is part of the market cost of the services, it must be included in the calculation.

[93] In my view, this rate for the relevant period is established on the basis of the rates set out in Exhibit 8.

[94] In terms of the quantification of compensable past care, the calculation should be achieved using full market rates and be based on a total of 2,742 days as follows. I consider that the calculation of the hourly rate should be based on schedules 3.1 to 3.5 in the report of Mr Roland Sykes23 as set out in the appellant’s submissions as follows:

Period Basis of Calculation Value of

Care

17.12.01 to 25.07.02 221 days @ 12 hrs per day @ $26.89 per hr 71,312.28

26.07.02 to 30.06.03 340 days @ 4 hours per day @ $26.89 per hr 36,570.40

01.07.03 to 30.09.03 92 days @ 4 hours per day @ $28.63 per hr 10,535.84

01.10.03 to 22.08.04 327 days @ 8 hours per day @ $28.63 per hr 74,896.08

23.08.04 to 31.08.05 374 days @ 8 hours per day @ $30.88 per hr 92,392.96

01.09.05 to 27.12.05 118 days @ 8 hours per day @ $33.35 per hr 31,482.40

28.12.05 to 28.02.07 427 days = 61.14 weeks @ 331/2 hours per

week @ $33.35 per hr 68,307.14

01.03.07 to 19.06.09 842 days = 120.29 weeks @ 331/2 hours per

Week @ $35.04 per hr 141,201.21

                                              $526,698.31

[95] Accordingly, the figure for past gratuitous care should be $526,698.31. There must correspondingly be an increase in the interest allowed for past care at a rate of 1.98 per cent of the total sum from injury to the present which is $90,429.05 to 31 January 2010.

Future Care

[96] In relation to the calculation of future care, I consider that the calculation was appropriately based by his Honour on a calculation that there should be a continuation of the current regime, whereby there would be a continuation of the current care regime in which the services of the three paid carers are supplemented by Mrs Waller. Consistent with my views outlined above, I consider that the figure which should be accepted as the basis for the calculation of the award for damages for future care is the amount that would be charged by “Open Minds” if that organisation provided all of the care required by the plaintiff. This rate includes an agency fee. I consider that an amount of $5,468 is the figure established by the evidence as the appropriate weekly figure.

[97] I also consider that the calculation should proceed on the basis that it is accepted that this arrangement will remain in place for 20 years. Accordingly, this case is indeed indistinguishable from Goode v Thompson and the entirety of the plaintiff’s future care needs to be compensated at full commercial rates, even though that care will continue to be provided by the family for the next 20 years. The calculation of future care therefore is as follows. The weekly rate of $5,468 discounted over the remainder of his expected life of another 60 years (5 per cent multiplier 1,012.2) gives a figure of $5,534,709.60. I consider that the discount applied by his Honour is appropriate and accordingly applying the appropriate discount of 15 per cent in accordance with Winterton v Mercantile Mutual,24 yields a figure of $4,704,503.

12 [2001] QSC 287.  

13 [2002] QCA 138.  

14 (1992) 175 CLR 327.

15 [2002] QCA 138.  

16 ARB at 563 – 570.

17 ARB at 260, ll 18-20.

18 ARB at 260 ll 24-26.

19 [2006] QSC 296.

20 ARB at 285, ll 20-35.  

21 [2001] QSC 510.

22 (1992) 175 CLR 327.  

23 Exhibit 8 dated 16 March 2009.

24 [2000] QCA 249.  

Brisbane Barrister – David Cormack

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