The most significant head of damage awarded to an injured person is almost always economic loss. However, the next “big ticket item” in many personal injuries case can be the damages awarded for gratuitous care.

Within the legal profession, damages for gratuitous care and assistance are known as Griffiths v Kerkemeyer damages, named after the case of the same name. The Civil Liability Act 2003 (QLD) (“the CLA”) however provides minimum thresholds to be met for an injured person to be awarded Griffiths v Kerkemeyer damages (See section 59 of the CLA). The CLA was enacted by the Queensland Government in response to the “insurance crisis” and the “Ipp Report” of September 2002.

The thresholds specify that damages should only be awarded to an injured person for gratuitous services provided, which are:

1. Necessary;
2. Arise solely out of the injury in relation to which damages are awarded; and
3. Are provided, or are to be provided for at least six hours per week and for at least six months.

Section 59 of the CLA has not yet been tested in any Court within Queensland.  The generally accepted interpretation is that both limbs of point 3 above must be met before any award for gratuitous services can be given.  As such, gratuitous services must be provided for at least six hours per week and for at least six months. Whilst the section is clear about the requirement of 6 hours per week, the requirement for six months does not state whether this period is cumulative or continuous. There are differing views on this point, although the generally accepted practice is that the period must be continuous. The exception to the rule would appear to be if the injured person has been required to spend time in hospital, or a like facility, which has temporarily severed the continuous period of six months.

For future Griffiths v Kerkemeyer damages to be awarded, the threshold tests must be met. This view was upheld in Kriz v King & Anor [2006] QCA 351 which is authority for the proposition that once the threshold in section 59 of the CLA is met, Griffiths v Kerkemeyer damages can be awarded even if the services thereafter are provided, or are to be provided, for less than six hours per week.

Of interest is the New South Wales case of Harrison v Melham [2008] NSWCA 67.  It considered the interpretation of section 15 of the Civil Liability Act 2005 (NSW). The section provided that no damages were to be awarded where gratuitous care services were provided for less than six hours per week and for less than six months.  The Court determined that an injured person would only have to show that the services were provided for a significant period of time per week or over a long period of time (six months) to be able to claim damages for gratuitous care.  Justice Mason observed that in order to meet the six month threshold, it was necessary for the six months to accumulate consecutively. Section 15 was subsequently amended and is now constructed in a similar manner to section 59 of the CLA.

Whilst only of persuasive value, this case is an example of the uncertainty of the interpretation of section 59 of the CLA, should it be brought before the Queensland Courts for determination.

It is for this reason that it is imperative that injured people keep a detailed record of any gratuitous services provided to them by family or friends that were not provided to them prior to sustaining their injuries, and were required as a result of the injuries.

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