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A permanent injury can have debilitating effects on multiple facets of your life. Injuries can be a major stressor on not only your work capacity and financial stability, but also your daily activities and relationships with others. This is especially so if you require regular assistance from your family and friends for domestic and personal tasks that you are no longer able to carry out for yourself. Your loved ones can also be affected as they are giving up time and, in some circumstances, their wages to provide care. If this is the case, you may be able to claim for damages for gratuitous services.
In Griffiths v Kerkemeyer [1977], the High Court recognised that an injured party is entitled to recover damages for services gratuitously provided by another person. The basis for this head of damage is that the injured person has suffered loss – being the loss of capacity for self-care, resulting in a need for the services – which gives rise to the right to recover the reasonable costs of meeting the need. The costs are calculated with reference to the commercial value or market rate of the services rendered, rather than the actual financial loss incurred (Van Gervan v Fenton [1992] HCA 54).
These common law principles are now also embedded in legislation. Under Section 59 of the Civil Liability Act 2003 (Qld), gratuitous services must be necessary and arise solely out of the injury for which damages are awarded. It follows that damages cannot be awarded if assistance of the same kind was being provided before the injury was sustained. The legislation also requires that the services be provided for at least 6 hours per week, for a minimum of 6 months.
So, what type of services can be claimed under these damages? While the law does not prescribe an exhaustive list of services, these can include:-
However, services which would have been provided in any event as an incident of the relationship are not recoverable (Van Gervan v Fenton). Similarly, emotional support by a family member does not in itself constitute a service as required by Griffiths v Kerkemyer and cannot form part of gratuitous services damages, as psychological support is a benefit that is incidental to the nature of an intimate relationship (Maria Irene Reid v Seltsam Pty Ltd (formerly Wunderlich Ltd) [2021] VSC 653). Rather, it is suggested that this type of support should be considered as part of the pain and suffering damages.
Regardless of the type of service, it is essential that they be provided to meet your reasonable needs, arising solely out of the injuries sustained as a result of the tortious act. Therefore, it is important to seek legal advice regarding your entitlements based on your personal circumstances. Should you wish to seek advice, please do not hesitate to leave your contact details below for a free consultation with us.
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