Compensation for Gratuitous Care

GRATUITOUS CARE & GRIFFITHS V KERKEMEYER (1977) 139 CLR 161

(“Griffiths v Kerkemeyer”)

An injured person seeking compensation may claim for any variety of damages, including pain and suffering, loss of amenities, loss of enjoyment of life as well as additional expenses and loss of income.

Depending on the severity of your injuries, you may be unable to attend to the day-to-day domestic work or provide basic care to yourself. Instead, you become dependent on a third party to provide domestic or nursing services. Such services include but are not limited to: -

• Cooking;
• Cleaning;
• Travel;
• Assistance to shower or dress yourself;
• Shopping;
• Assistance to perform rehabilitation exercises; or
• Yard maintenance and gardening, etc.

These services are usually taken for granted as everyday life until this freedom is taken away by something unexpected such as a workplace injury, motor vehicle accident or even a slip and fall at a shopping centre.

Of course, where these services are provided commercially, reasonable costs can be claimed as compensation. If these services are provided voluntarily, perhaps by your spouse, family or friends, it is considered “Gratuitious Care” or a Griffiths v Kerkemeyer Claim.

BEFORE GRIFFITHS V KERKEMEYER

The decision of Griffiths v Kerkemeyer explored an injured person’s right to compensation for losses which were not actively recorded like those of loss of earnings or out-of-pocket expenses.

Before Griffiths v Kerkemeyer, there was uncertainty as to whether an injured person who required long-term care was entitled to claim compensation. Compensation was generally only where there was a legal or moral obligation, which produced a financial loss for the plaintiff.

As such, no compensation was awarded if the services were performed gratuitously. Instead, plaintiffs would enter contracts with family or friends to provide paid care, in order to display a legal obligation and financial loss and to be compensated.

This created further issues, such as where the plaintiff was unconscious when care was provided. Other plaintiffs would not consider entering a legally-binding contract for what were really voluntary services.

DECISION OF GRIFFITHS V KERKEMEYER

In 1977, the High Court of Australia awarded damages to the plaintiff which included an amount for services provided by his fiancé and members of his family as a result of a motor vehicle accident which left him a quadriplegic. This amount included services provided in the past as well as services likely to be needed in the future.

The Court considered that the required voluntary services would otherwise be provided by a nursing home, hospital or nurses at the plaintiff’s home. Alternatively, the services would be domestic in nature that would have otherwise been performed by the plaintiff himself, if he was not injured.

It was also considered that, to provide such care, it was likely that the provider would suffer financial loss in doing so. Employment or income may be surrendered by the provider in order to provide adequate care to the injured person.

The High Court held that the introduction of such damages would be supported by the following principles:-

1. It is fair and just;
2. It compensates for unpaid care usually provided by women in our society;
3. It spreads the loss, from not only the injured person but those surrounding who are also affected;
4. It does not encourage contractual arrangements at the expense of gratuitous care;
5. It compensates the plaintiff for the need for services.

WHEN YOU CAN CLAIM GRATUITOUS CARE

Under common law, the requirements for a claim for compensation for gratuitous care are as follows: -

1. The tortious conduct of the defendant must cause the need for the service;
2. The basis upon which the services have been provided (by money or unpaid effort) is irrelevant;
3. When services are provided gratuitously to the plaintiff, the plaintiff should receive the benefit of that gratuity, and there should be steps taken to protect the plaintiff from the possibility that the gratuitous provision may be unable to continue;
4. It is not necessary to show the need for assistance will result in financial loss; and
5. The commercial or market value of the services is generally a fair and reasonable measure of the plaintiff’s loss.

In Griffiths v Kerkemeyer, a two-stage test was proposed. Firstly, it must be reasonably necessary to provide the services to the injured person. Secondly, the benefit to the injured person must be considered such that it should be awarded compensation.

LEGISLATION REQUIREMENTS

A compensation claim for gratuitous care has been further regulated by Section 59 of the Civil Liability Act 2003 (Qld) (“the Act”). Similarly to the common law principles, the Act provides that any compensation for gratuitous care must be:-

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.

Therefore, if you are injured and become dependent on a third party such as a spouse or family member to provide at least six hours per week for six months, you may be compensated for the amount of care they are required to provide you.

Fortunately, the six months part of the threshold, doesn’t have to be consecutive, but cumulative. Also, once a claimant achieves this threshold, any care beyond that point doesn’t need to continue to meet that threshold.

FACTORS IN ESTIMATING CARE

A Court will consider whether or not these services were already provided to you before you were injured. Compensation for these services will not be awarded if these services were provided to you before you were injured.

If there is an increase in services provided to you from before your injury, compensation may only be claimed as per the increase of care.

A Court will also consider the time you have spent in hospital or another institution where you receive professional care. Compensation is not often awarded as care from family and friends is not usually required in such circumstances.

A Court will consider whether or not the services provided are such that normally be obtained for reward or a part of normal incidents of family life. For example, what kinds of support family members routinely provide for each other.

BEST PRACTICE FOR YOU

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.