The plaintiff was born at Toowoomba Hospital by emergency
caesarean section due to foetal cardiac arrest. He suffered brain
damage and subsequently developed the choreo-athetoid form of
cerebral palsy. The plaintiff claimed against the State of
Queensland (the State) on the basis that its hospital staff caused
his cerebral palsy. The State admitted liability. The only issue
for determination was the assessment of damages.4 September
The quantification of past care was a significant issue. The
court referred to the decision of the New South Wales Supreme Court
in Rotumah v NSW Insurance Ministerial Corporation (unreported, 6
April 1998). In that case the plaintiff received catastrophic
injuries in a car accident when he was almost 2 years old. As a
result, he suffered left side hemiplegia with total loss of the use
of his left arm, limited use of his left leg, total loss of vision
in his right eye, restricted vision in his left eye and severe
brain damage. In Rotumah, the court found that since the plaintiff
was injured at such a young age, there would have been a period
when he would have required full-time care, even if he had not been
injured. The court accepted that the care that was provided to the
plaintiff was more intense than usual over his early years, but the
way in which the plaintiff should be compensated was based on
quantity or hours of care, as opposed to quality or intensity of
care. Therefore, for a period of a few years there should not be an
award of compensation for past care, and gradually over time as the
plaintiff grew older and reached a stage where if he had not been
injured he would have been independent, costed care should start to
be made available.
In Rotumah, the court considered that the cut off point for
determining when past care should be awarded was arbitrary to an
extent. The court in that case accepted the submission that the
period of between 4 and 8 years of age was a time when the
plaintiff would start to become independent, and although he would
still need normal child supervision at age 8, by that stage the
type of care he would require would be quite different from the
very generalised supervision that a normal 8 or 9 year old
requires. The court decided to take an 'average half way
point' between the ages of 4 and 8, and held that up until the
age of 6 a child requires full time care. This took into account
that there would be some additional care provided before the age of
six, and that an uninjured person might require some care after
After considering the court's findings in Rotumah as well as
a range of expert evidence, the Court of Appeal held that until the
age of 4, the plaintiff would have required full time care
regardless of whether he had cerebral palsy. Therefore, no
allowance was made for past care during that period.
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