Compensation for Emotional Support

It has been long established that where a person is injured, they may be entitled to be compensated for services an injured person can no longer provide to themselves.  Where these services are provided commercially, reasonable costs can be claimed as compensation.

If these services are provided voluntarily, perhaps by your spouse, family or friends, it is considered "Gratuitous Services" or a Griffiths v Kerkemeyer Claim.  These services are often readily observable and commercially measurable and may be awarded compensation if they are necessary and appropriate.

The Court has recently been tasked with determining if emotional support can be considered a "service" for which an injured person can be compensated for, where they are not capable of providing it  themselves.

Emotional support is more complex as it is often seen as a mutual benefit from an intimate relationship with friends or family. As it is expected to be provided regardless of any injury, it is not often considered a “service” that has been incurred as a result of an injury.

Therefore, it is not usually something that is considered in an award for damages.

Gratuitous Services - Compensation Requirements

Damages for gratuitous services provided to an injured person can only be awarded where the requirements of s 59 of the Civil Liability Act 2003 (“CLA”) are met, which are:

• the services are necessary;
• the need for the services arises solely out of the injury in relation to which damages are awarded;
• the services are provided for at least 6 hours per week over a period of at least 6 months.

Further, the case of Griffiths v Kerkemeyer damages sets out the general requirements a claim for gratuitous services must meet:

1. The tortious conduct of the defendant must cause the need for the service;
2. The basis upon which the services have been provided (by money or unpaid effort) is irrelevant;
3. When services are provided gratuitously to the plaintiff, the plaintiff should receive the benefit of that gratuity, and there should be steps taken to protect the plaintiff from the possibility that the gratuitous provision may be unable to continue;
4. It is not necessary to show the need for assistance will result in financial loss; and
5. The commercial or market value of the services is generally a fair and reasonable measure of the plaintiff’s loss.

Gardiner v Doerr [2022] QSC 188

The recent decision of Gardiner v Doerr [2022] QSC 188 has helped in settling where an injured person may be entitled to compensation for emotional support. Claims involving a psychological injury are more likely to permit a claim for emotional support.

The Court adopted the view from Macfarlan JA in Pel-Air Aviation Pty Ltd v Casey (2017) 93 NSWLR 438, where the injury is psychological in nature, damages for gratuitous services can be awarded and include emotional support where that support is necessary and appropriate to relieve the effects of the psychological injury.

The claim was supported by medical evidence confirming that the emotional support was therapeutic for the plaintiff, and as such, was a necessary and appropriate “service”. Therefore, the services were found to have met the requirements of s 59 of CLA and the claim was accepted by the Court.

Evidence of Services

To support a claim for gratuitous services, including emotional support, we will speak to your family and friends in relation to:

1. your dependency on them or someone else;
2. the sort of service(s) they are required to provide to you;
3. the time and effort spent by this person to provide this service to you;
4. why this service was necessary;
5. why they needed to provide it to you;
6. the benefit you gained from this service.

In cases of emotional support, we look for evidence your psychological injury was helped by the service provided to you. For example, evidence that it provided you with therapeutic relief from the symptoms of your injury.

The time spent providing this service is recorded in a statement and then calculated at market value of what it would cost to seek this service professionally.

How we can help

Claims for gratuitous care can have the potential to be quite substantial. Careful consideration needs to be given to whether the threshold can be achieved.

Keeping a record of the care and assistance provided to you is very important. It allows you to keep a paper trail of all events and milestones as to progress. It also allows easy and accurate recollection to provide to your representative, without the risk of undervaluing the care provided.

This can mean the difference between having an accurate claim for care and assistance, or possibly not having a claim at all.

These are complex matters, and you should seek legal advice before considering making or accepting an offer from insurers and at fault parties.

Contact our compensation team today on (07) 4963 2000 or through our online contact form below should you require assistance.