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Compensation for gratuitous care – how far does it go?

02 Sep 2015

Topics

  • Compensation
  • Personal Injury

What is Gratuitous Care?

In Australia, the head of damage for gratuitous services and voluntary care is often referred to as a claim under the principle established in the case of Griffiths v Kerkemeyer [1977] HCA 45. Under this head of damages, a wrongfully injured claimant can obtain compensation for the voluntary work of third parties who attend to the needs created by the injury. These include services of a domestic nature, services relating to nursing and services that aim to alleviate the consequences of an injury.

The claim for gratuitous care as a category of damages in common law compensation emerged from the 1977 case of Griffiths v Kerkemeyer. In this matter, the plaintiff had been rendered a quadriplegic. The issue that arose was whether damages for past and future nursing and other services provided gratuitously by the plaintiff’s fiancée and family were recoverable. The High Court held that the injured party was entitled to recover an amount based on the commercial cost of nursing and domestic services that would have been necessary but for the assistance provided voluntarily by family and friends.

Subsequently, arising from this principle is the question, what can or cannot be claimed under this head of damages? This issue is particularly contentious when the injured person is a child. How do you differentiate between the care provided to a child as a result of the accident and the care that would have been provided regardless of the injuries sustained?

How far does Gratuitous Care extend?

A person who has been injured is often assisted by relatives or friends, who provide nursing, perform domestic chores or help with transportation. For those providing such assistance, there is often a financial loss such as travelling expenses or giving up wages. Depending on the severity of the injuries, these expenses can be crippling. When claiming gratuitous care, parents must remember the actual financial loss is not recoverable but the commercial value of the time committed may well be (Van Gervan v Fenton (1992) 175 CLR 327).

When determining what treatment or services can be recovered, it must be established whether the assistance was reasonably necessary as a result of the injuries and disabilities suffered by the injured person. This subjective test should be approached in a ‘broad, common-sense manner’ and the services must be for ‘the need of the plaintiff’ (Van Gervan v Fenton (1992) 175 CLR 327).

The High Court decision of CSR Ltd v Eddy [2005] HCA 64 reiterates the importance of need, establishing that the services must be what the injured person reasonably requires and that ‘innocent parties should not suffer unrecoverable losses as a result of the tortfeasor’s negligence.’ For parents, services that are fulfilling the natural obligations to attend to the injuries and disabilities that are caused to their child can be claimed (Kars v Kars [1996] HCA 37).

Under this principle, expenses incurred by parents to transport their children to doctors’ appointments, rehabilitation appointments or taking time off work to care for their injured child should be reimbursed by the defendant. Again, the actual financial cost of taking time off work is not recoverable, however, the commercial value of the time committed may well be. Although this provides clarity around what constitutes a need, how far can this extend?

The British case of O’Connell v Brisban CC [1966] QWN 26 provides us with some guidance as to what is not considered a reasonable need. The judgment states that ‘a doting parent cannot cease work during the entire period of his child’s stay in hospital, however prolonged, and expect a tortious defendant to reimburse him’.

Further, in Van Gervan v Fenton (1992) 175 CLR 327 the High Court of Australia interpreted Griffiths v Kerkemeyer to deny recovery where the services could be seen as ordinary incidents of family life. When claiming for gratuitous care, parents must be aware that the care already being received by the child before the injury must be disregarded. If for instance a need is exacerbated due to the accident, the defendant will only be liable for the creation of any additional required care. If however, the care or service provided to the injured child is conducive to their wellbeing and rehabilitation then this should be reimbursed. It is therefore important for parents to recognise this distinction when trying to claim for gratuitous care.

Therefore when parents are claiming for gratuitous care, it is important to remember that only the care provided to the child which is a direct result of the injuries can be claimed. Further, the care provided must be reasonable and beneficial to the wellbeing and rehabilitation of the child.

Summary

Gratuitous care provided by parents should be compensated by way of award for the commercial value of providing such domestic assistance or nursing;

  1. Damages for past and future costs associated with extra domestic assistance and nursing caused by the injury are recoverable until the child is 18 years of age, unless the need is ongoing because of the injury;
  2. Future paid care may be recoverable, subject to credible evidence substantiating the claim;
  3. Any claim for gratuitous care must be reasonable;
  4. Common-sense should be applied when considering what can be claimed; and
  5. Ordinary incidents of family life cannot be claimed.

If you require assistance in relation to a personal injury or related matter, please contact our Personal Injury team today.