Editor: Danuta Mendelson MA, PhD, LLM Associate Professor, School of Law, Faculty of Business and Law, Deakin University
JURISPRUDENTIAL LEGERDEMAIN: DAMAGES FOR GRATUITOUS SERVICES AND ATTENDANT CARE∗
The head of damages for gratuitous services and attendant care is a curious legal institution, often referred to as the Griffiths v Kerkemeyer head of damages. In Australia, under this head of damages, a wrongfully injured claimant can obtain compensation for the voluntary work of third parties (including the tortfeasor) who attend to the needs created by the injury. However, once the court c a l c u l a t e s t h e m o n e t a r y v a l u e o f t h e s e g r a t u i t o u s s e r v i c e s a n d a w a r d s t h e m , t h e c l a i m a n t i s u n d e r n o legal obligation to reimburse the third party carers for their services. 1
In the past decade, damages for gratuitous care (or loss thereof) have comprised a substantial part of the quantum of damages, particularly, but not exclusively, in medical negligence cases. In 2001 in Simpson v Diamond  NSWSC 925,2 the case that provided the most immediate impetus for the torts reform of 2002-2003, the trial judge, Whealy J, awarded total damages of $A14,202,042 to Calandre Simpson, who was born in 1979 and suffered cerebral palsy at birth as a result of admitted negligence of the attending medical practitioner. The quantum of damages included $119,730 in Griffiths v Kerkemeyer damages for the care provided to Calandre by her mother in the past, and $25,000 for the mother’s care in the future. The Court of Appeal, in Diamond v Simpson (No 1)  NSWCA 67 at , reduced the original quantum of damages to $10,998,692. While damages for past gratuitous care were not challenged, the Court of Appeal reduced damages for future care to $10,000 on the basis that once the professionals took over, Calandre’s need for services provided by her mother would diminish. The Court of Appeal also disallowed (at ) Whealy J’s holding that:
The Spastic Centre’s unpaid invoices are recoverable as gratuitous services ... [they] fall on the side of the line more closely proximate to services provided by friends, relatives and members of the community generally.
The Court of Appeal determined that an extension of the doctrine to therapeutic services provided free of charge by a charitable organisation was an error of law, and observed (at ): “Griffiths v Kerkemeyer claims are anomalous and exceptional and courts should be reluctant to extend the Griffiths v Kerkemeyer approach to new categories of claims.” However, the Court of Appeal’s characterisation of the gratuitous care claims as “anomalous and exceptional” does not reflect the reality. They are now statutorily entrenched in all but one jurisdiction, and constitute a routine element of every personal injury claim. For instance, in Woolworths Ltd v Lawlor  NSWCA 209, damages of $126,453.60 (out of the total of $219,536.60) were awarded for past and future d o m e s t i c a s s i s t a n c e p r o v i d e d t o t h e p l a i n t i f f b y h e r r e t i r e d h u s b a n d , d e s p i t e t h e p l a i n t i f f ’ s continuation in her employment. 3
∗ The author wishes to thank Professor Harold Luntz for his invaluable comments and guidance, which have helped to make this Column a more accurate reflection of the law of gratuitous damages.
1 2 Kars v Kars (1996) 187 CLR 354 at 372. For a detailed analysis of the case and damages awarded, see Luntz H, “Damages in Medical Litigation in New South Wales” (2005) 12 JLM 280.
3 Damages were awarded for past gratuitous services for 15 hours per week for the eight weeks immediately after the accident, nine hours per week for the next 94 weeks until the date of trial; for the future, the court allowed nine hours per week for a further two years and then seven hours per week for 24 years: Woolworths Ltd v Lawlor  NSWCA 209 at . See also Kavanagh v Akhtar (1998) 45 NSWLR 588, in which damages for gratuitous care were assessed at $90,000 out of $233,191.10.