It is common for an injured plaintiff to receive unpaid care with personal and domestic tasks that is reasonably required because of their injuries. This care is commonly provided at no cost to the plaintiff by their family and friends. If the care was provided by paid contractors, there would be no doubt the defendant should pay the plaintiff the reasonable costs of that care. If provided at no cost though, should a defendant get the benefit of the unpaid care performed by the injured plaintiff’s family and friends? Or should the defendant pay for the reasonable value of that unpaid care? What about public hospital or charitable medical care provided at no cost to the plaintiff where there is no legal obligation to repay those costs to the hospital or charity from a successful personal injury damages claim?
Unpaid Care from Friends and Family
AAI Limited v McQuitty [2016] QCA 326 and McQuitty v Midgley & Anor [2016] QSC 36 consider the award of damages for gratuitous care provided by friends and family and s 59 of the Civil Liability Act 2003 (Qld) (‘CLA‘). Mr McQuitty’s accident was on 28 August 2003 and s 59 of the CLA back then, compared to now (8 April 2022) stated (mark ups indicate the current version as amended by the Civil Liability and Other Legislation Amendment Act 2010 (Qld) on 1 July 2010):
59 Damages for gratuitous services provided to an injured person
- (1) Damages for gratuitous services provided to an injured person are not to be awarded unless—
- (a) the services are necessary; and
- (b) the need for the services arises solely out of the injury in relation to which damages are awarded; and
- (c) the services are provided, or are to be provided—
- (i) for at least 6 hours per week; and
- (ii) for at least 6 months.
- (2) Damages are not to be awarded for gratuitous services if gratuitous services of the same kind were being provided for the injured person before the breach of duty happened.
(3) Damages are not to be awarded for gratuitous services replacing services provided by an injured person, or that would have been provided by the injured person if the injury had not been suffered, for others outside the injured person’s household.(4)(3) In assessing damages for gratuitous services, a court must take into account—- (a) any offsetting benefit the service provider obtains through providing the services; and
- (b) periods for which the injured person has not required or is not likely to require the services because the injured person has been or is likely to be cared for in a hospital or other institution.
In McQuitty v Midgley & Anor [2016] QSC 36 His Honour Jackson J said at [61]-[62] and [211]-[212]:
[61] In Kriz v King the President of the Court of Appeal, with whom Jerrard JA and Helman agreed, said:
“Because s 59 restricts a claimant’s previously unfettered common law right to seek damages for gratuitous services, the section should only be regarded as limiting that right if it does so clearly and unambiguously…”
[62] … under the applicable principles at common law the relevant question for an award of damages, in relation to past or future care, is what the plaintiff needed or needs, not just what in fact has been provided to him… it is the need for which compensation is ordered.
[211] In my view, it is not a requirement that the services in fact provided are equal in extent to the need for care for which compensation is awarded where the period is a past period. Section 59(1) is cast in a mix of tenses. The damages are to be for relevant services “provided”. But the services include services include those that
McQuitty v Midgley & Anor [2016] QSC 36
“are provided” and those “to be provided”. The minimum threshold requirement is of six hours per week for at least six months. But that threshold could operate in
relation to services that have not yet been provided.
[212] Having regard to what was said in Kriz v King set out previously, in my view, and subject to the operation of the minimum threshold requirement, the proper
construction of s 59(1) is that it does not require that an order for damages can only be made for the services actually supplied as opposed to the need for those services.
It is not clear why the current wording of s 59 CLA was applied in McQuitty at [210] to an accident that occurred on 28 August 2003. The possibly significant difference being the words “provided to an injured person” in sub-section (1). Those were added after 28 August 2003. Arguably, the current wording does not impose a 6 hour per week for 6 months minimum threshold on a past unfulfilled need for gratuitous care because of the past tense expressed in s 59(1) but this might then seem to contradict s 59(1)(c) which is expressed in both past and future tense. There may be a degree of contradiction and this section is poorly worded. An interpretation that might avoid contradiction could be that if you have actually received less than 6 hours per week for 6 months of gratuitous care, then so long as you are going to receive more than the threshold amount in the future, you can recover the past and future gratuitous care actually received and that will be received in future. It seems clear that if by the time of a trial the 6 hours for 6 months threshold has not been met but likely will be met in the future, then the minimum hours per week threshold has been satisfied for past and future gratuitous care.
Section 59(2) appears to operate independently, but still in the context of, s 59(1) of the CLA. His Honour Jackson J at the trial does not appear to have considered s 59(2) as being relevant or having any work to do in McQuitty. We have identified three issues with s 59(2):
- The first is whether the word “being” implies that this sub-section is only about gratuitous care being received immediately before the breach of duty happened (one wonder’s whether parliament was actually considering possible differences in timing for breach and damage as in some cases, the breach might happen years before the damage results in a cause of action). What about gratuitous services being received at any time in the past? For example many years earlier, or even in childhood or as a baby. What about a pre-existing need for services actually received that commenced between the breach of duty and damage that crystallised the cause of action years later? How regularly does a service need to be rendered to satisfy that it is “being” provided?
- The second issue is whether sub-section (2) is referring only to gratuitous services that were already being provided before the breach of duty that were provided for reasons other than the plaintiff’s pre-existing disability. For example partners that simply chose to split household tasks a certain way – for example a partner who works full-time and a partner who does the housework and cares for the children. What does “kind” mean in sub-section (2)? What about a partner who did some of the laundry, but only on weekends, and then because of an injury, can’t do any laundry at all? Section 59 does only destroy common law rights and is clearly intended to do that to some degree. If sub-section (2) only meant pre-existing services needed for pre-existing disability then that would be meaningless because at common law the pre-existing need for care would not be recoverable anyway. Perhaps the restriction on damages applies so that if you were receiving gratuitous lawn mowing services before the breach of duty, whether or not you still did some lawn mowing yourself, then all damages for gratuitous lawn mowing are abolished – but can still be relevant to the 6 hour per week for 6 months threshold.
- The third issue is what exactly “gratuitous” means. If a partner who receives domestic care, because they work full-time while their partner does all or at last more of the domestic chores in the household than they do, receiving “gratuitous” care? Does gratuitous simply mean no money changed hands in a transaction? Do their earnings spent by the entire household mean the services they receive at home are not really “gratuitous”?
What is clear is that in AAI Limited v McQuitty [2016] QCA 326 the Court of Appeal was unanimous in upholding the award of gratuitous care based on “need” rather than actual receipt of gratuitous services.
The resumed 10 March 2010 and 11 March 2010 second reaching speeches for the the Civil Liability and Other Legislation Amendment Act 2010 (Qld) that inserted the words “provided to an injured person” in s 59(2) of the CLA are not helpful. Neither is the initial 7 October 2009 second reading speech. It appears the words “provided to an injured person” in s 59(2) of the CLA were probably inserted to distinguish it from the new s 59A of the CLA which creates a statutory head of damages for loss of capacity to provide care to others due to injury to yourself.
Our best guess is that s 59(1) of the CLA in its current form only limits the award of damages for gratuitous services actually received and that even if the 6 hour per week for 6 months threshold has not been met by the time of the trial, it is met if it will be met in the future by gratuitous services that will probably be received.
For s 59(2) of the CLA, our best guess is that gratuitous services received that were not being received in return for something, such as an arrangement where one partner does the domestic chores if the other works full-time and uses their wages to support the entire family, cannot be recovered for a kind of care that was being received to some degree of regularity in the lead up to the breach of duty happening. So if you sometimes did the mowing yourself or never did it yourself, and your friend did it entirely gratuitously, for nothing in return and not even under a mutually beneficial arrangement or understanding, then you can’t recover gratuitous services damages for mowing even if due to injury you now need it or need more of it.
Our best guess is certainly not the established law and s 59 of the CLA needs further judicial consideration.
It is of course essential to consider whether the CLA even applies to a claim and it commonly will not where a worker is injured on the job by a defendant that is not their employer because of s 5 of the CLA. It is noteworthy too that the CLA s 4 applies to breaches of duty and a breach of a statutory guarantee may not be a breach of duty because a guarantee is quite different to a duty (for example the Australian Consumer Law provides causes of action based on statutory guarantees).
Public Hospital and Charitable Medical Care
In Parry v Cleaver (1970) AC at page 14, Lord Reid said in a case regarding benefits received under a paid contract of insurance by a plaintiff:
It would be revolting to the ordinary man’s sense of justice, and therefore contrary to public policy, that the sufferer should have his damages reduced so that he would gain nothing from the benevolence of his friends or relations or of the public at large, and that the only gainer would be the wrongdoer. We do not have to decide in this case whether these considerations also apply to public benevolence in the shape of various uncovenanted benefits from the welfare state, but it may be thought that Parliament did not intend them to be for the benefit of the wrongdoer.
PER LORd REID in Parry v Cleaver (1970) AC at page 14
Parry v Cleaver did not decide the issue of compensation for unpaid care. But the above quote is a logical and fair view and the principal behind it has been adopted into the common law in Australia.
In Griffiths v Kerkemeyer [1977] HCA 45, Stephen J said:
In the past it has been customary to disregard the value of such voluntary services when assessing damages in such cases. The result has been to benefit defendants, their insurers and, ultimately, the community at large at the expense of those who, behaving “like an ordinary decent human being” have voluntarily undertaken the care of a loved one maimed on the roads; the instance of the wife in Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9 provides a case in point.
PER STEPHEN J in Griffiths v Kerkemeyer [1977] HCA 45
In Griffiths v Kerkemeyer [1977] HCA 45, Mason JJ said:
The respondent’s relevant loss is his incapacity to look after himself as demonstrated by the need for nursing services and this loss is to be quantified by reference to the value or cost of providing those services. The fact that a relative or stranger to the proceedings is or may be prepared to provide the services gratuitously is not a circumstance which accrues to the advantage of the appellant. If a relative or stranger moved by charity or goodwill towards the respondent does him a favour as a disabled person then it is only right that the respondent should reap the benefit rather than the wrongdoer whose negligence has occasioned the need for the nursing service to be provided. Enough has been said in the cases which have been decided more recently to indicate that the old view based on the proposition that a plaintiff is not entitled to recover from the defendant the services provided to him unless he can show that he is under a legal liability to pay for them, is no longer acceptable. That view proceeded upon the footing that the relevant loss was the legal liability to pay for the service. It is now recognized that the true loss is the loss of capacity which occasions the need for the service. In consequence the existence of a legal liability to pay is not the dominant consideration.
…
In general the value or cost of providing voluntary services will be the standard or market cost of the services
per MASON JJ Griffiths v Kerkemeyer [1977] HCA 45
In National Insurance Company of New Zealand Ltd v Espagne [1961] HCA 15 at paragraphs 22-23 Windeyer J said:
In assessing damages for personal injuries, benefits that a plaintiff has received or is to receive from any source other than the defendant are not to be regarded as mitigating his loss, if: (a) they were received or are to be received by him as a result of a contract he had made before the loss occurred and by the express or implied terms of that contract they were to be provided notwithstanding any rights of action he might have; or (b) they were given or promised to him by way of bounty, to the intent that he should enjoy them in addition to and not in diminution of any claim for damages. The first description covers accident insurances and also many forms of pensions and similar benefits provided by employers: in those cases it is immaterial that, by subrogation or otherwise, the contract may require a refund of moneys paid, or an adjustment of future benefits, to be made after the recovery of damages. The second description covers a variety of public charitable aid and some forms of relief given by the State as well as the produce of private benevolence. In both cases the decisive consideration is, not whether the benefit was received in consequence of, or as a result of the injury, but what was its character: and that is determined, in the one case by what under his contract the plaintiff had paid for, and in the other by the intent of the person conferring the benefit. The test is by purpose rather than by cause. (at p600)
23. Nevertheless it is not, I think possible, to enunciate an exhaustive rule for all parts of this vexed topic. And the questions that arise can never be determined in the abstract. Each must depend on the terms of the particular contract, pension scheme, charitable benefaction or statute governing the benefit conferred.
per WINDEYER J in National Insurance Company of New Zealand Ltd v Espagne [1961] HCA 15
Clearly then where a charitable, Commonwealth or State funded public health service requests a refund of its medical expenses incurred in treating an injured plaintiff, the defendant will have to pay those expenses to the plaintiff. It remains to be seen whether a plaintiff may claim such costs where the provider of the medical services does not seek a refund. While not currently the law, and there are differing views expressed in various cases in obiter, as Lord Reid said in Parry v Cleaver regarding public hospital treatment costs, “it may be thought that Parliament did not intend them to be for the benefit of the wrongdoer.” In a workers’ compensation or CTP insurance claim there is legislation that allows the public hospital system to recoup its costs for treating motor accident victims and injured workers. However, this issue is not dealt with in claims regulated by the Personal Injuries Proceedings Act 2002 (Qld). It seems likely though that were a public hospital says it does not want a refund of its medical costs, the defendant cannot be made to pay damages for those costs. This has not been definitively decided though.