The Facts
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 2006.
The Decision
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 6.
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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