Damages for gratuitous services- a timely reminder of the law in Queensland

Legislation enacted in Queensland to modify and/or control (procedural aspects of) common law claims for damages for personal injuries, have impacted on the manner and amount of compensation to be recovered for the value of ‘gratuitous services’ provided by family/friends of injured claimants.

Before these various Acts were introduced (in first instance in 2002), this type of compensation was calculated by reference to the common law as pronounced by the Hight Court of Australia. The legislative changes limit, in various ways, the instances (and therefore amount) that a court was able to award for services provided to claimants on a gratuitous basis (that is, without reward/payment for the services).

Until 2010, if a claim in Queensland involved an injury at work (which was dealt with under the workers’ compensation / WorkCover law) then no restrictions applied to calculating claim related gratuitous care awards. In 2010, the workers’ compensation law was brought into line with other types of personal injuries claims (such as car accident and slip and fall claims). That change meant all personal injury claimants must be able to demonstrate/establish a minimum level of care has been given to them by family/friends, to recoup the ‘cost’ of such care. In a nutshell, the minimum ‘threshold’ for all personal injury claimants, now, is:

·         at least 6 hours a week; and

·         for at least a period of 6 months.

Perhaps to balance the effect of these legislative changes, courts have been somewhat expansive in their interpretation of this threshold, such that the 6 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.