After a serious injury, the help usually arrives long before any lawyer does. A partner takes over the showering and dressing. A daughter drives to every appointment. A neighbour mows the lawn for a year and refuses anything for it. None of it is invoiced, and most families never think of it as part of a claim.
Queensland law does. Care given free of charge by family or friends is a recognised head of damages, and it has been since the High Court decided Griffiths v Kerkemeyer (1977) 139 CLR 161. What Queensland has added is a threshold. Under Civil Liability Act 2003 (Qld) s 59(1), gratuitous care is only claimable if it clears four conditions, two of which are hard numbers. Section 59(2) adds a separate bar on top.
Those numbers catch people out. Families who provided real, sustained help sometimes fall outside the section because of how that help was spread across the week, or how long it lasted.
What the law calls gratuitous care
Gratuitous care is help provided to an injured person for nothing: no invoice, no wage, no obligation to repay. It covers personal care such as washing, dressing and medication management, and domestic work such as cooking, cleaning, laundry and driving, where the need for it comes from the injury.
The Act does not define the phrase. The dictionary in schedule 2 defines damages, harm and personal injury, and defines section 59A damages, but gives no meaning for gratuitous services and no list of qualifying tasks. What matters is the character of the assistance, not its label.
The claim belongs to the injured person, not the carer. In Van Gervan v Fenton (1992) 175 CLR 327 the High Court described the true basis of this head of damages as the injured person’s need for the services. The family member providing it has no separate claim.
The four conditions in section 59
Section 59(1) is drafted as a bar: damages for gratuitous services “are not to be awarded unless” every one of the following is satisfied. They are cumulative, so failing any one defeats the head of damages.
| Condition | What it means in practice |
|---|---|
| The services are necessary | The help must answer a genuine need created by the injury. |
| The need arises solely out of the injury | The reason the help is needed must be the injury sued on, and nothing else. |
| At least 6 hours per week | A volume test. Occasional help sits below the line. |
| For at least 6 months | A duration test. Care that tapers off after a short recovery falls short. |
Two points matter. The section is a gateway, not a deduction: it does not strip the first six hours of each week out of the assessment. And it covers services “to be provided”, so future care counts as well as care already given.
The word doing the most work is “solely”
Section 59(1)(b) requires that the need for the services “arises solely out of the injury in relation to which damages are awarded”. That is strict. Where an older person already needed help with heavy housework because of arthritis, and an accident then makes help necessary for an additional reason, the causes have to be separated. Only the part of the need traceable to the accident is within the section.
Care already being given before the injury
Section 59(2) is a separate bar, and it surprises people. 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”. If a spouse already did all the cooking and laundry, that same work after the injury is not a new loss under this section, even though it is now being done for an injured person rather than a well one.
This displaces the common law position for claims the Act governs. In Van Gervan v Fenton the High Court held that a defendant gets no allowance for the services a spouse had voluntarily provided before the accident; s 59(2) takes the opposite approach for services of the same kind. Where the line falls between old help and genuinely new help turns on the facts.
What a court must take into account
Once the threshold is cleared, s 59(3) directs the court to take two things into account.
The first is any offsetting benefit the carer obtains through providing the services. The second is any period during which the injured person has not needed, or is not likely to need, the care because they have been or are likely to be looked after in a hospital or other institution. A long admission, or an expectation of residential care later in life, reduces the period over which home care is assessed.
Under s 60(1)(b), a court cannot order interest on an award of damages for gratuitous services. Past care can stretch back years, and no interest runs on it for that delay.
How the value of the care is worked out
Section 59 sets the gate but does not fix a rate. That is where Van Gervan v Fenton matters most. The majority held that the wages a carer gave up are not an appropriate criterion for valuing the services, and that as a general rule the market cost or value of the services is their fair and reasonable value. Deane and Dawson JJ dissented in the result, but that is the majority position.
The assessment therefore does not turn on what the carer earned. A partner who left a low-paid job and a partner who was not working at all are not valued differently on that basis. The question is what the services are worth against what comparable care costs commercially. The majority treated market cost as a general rule rather than an absolute one, and accepted it may sometimes be too high to represent the reasonable value of the services.
Which claims the threshold applies to
Section 4(1) says that, subject to s 5, the Act applies to any civil claim for damages for harm, and s 4(4) applies s 59 to a breach of duty happening on or after the day the Act received assent. Section 5 sets out the exclusions, and motor accident claims are not among them. So the threshold is the ordinary position across motor accident, public liability, dog attack and medical negligence claims.
What s 5 does exclude is a dust-related condition, an injury resulting from tobacco, and an injury for which workers’ compensation is payable, whether under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) or the 1996 Act before it. That workers’ compensation exclusion is itself qualified: injuries to which s 34(1)(c) or s 35 of the 2003 Act applies, which are recess and journey injuries, stay inside the Civil Liability Act. For those injuries the Civil Liability Act is out of the picture. The workers’ compensation Act carries its own damages provisions, including on loss of consortium (s 306M) and interest (s 306N).
That line is easy to miss where one incident touches both schemes.
The other side of it: care you can no longer give
Section 59A covers the reverse situation. An injured person who can no longer provide unpaid domestic services to someone in their own household, such as a young child or an elderly parent, may recover damages for that lost capacity. What follows is a summary of the principal conditions, not the full list. In the ordinary case the injured person must have died, or their general damages must be assessed at the amount prescribed under s 58 or more, before the section is reached at all. The recipient must have lived at the injured person’s usual residence or been an unborn child, the injured person must already have been providing the services to them, and the recipient must be incapable of performing the services personally because of age or incapacity. There must be a reasonable expectation of at least 6 hours a week for at least 6 months, and a need over that period that is reasonable in all the circumstances. Sections 59A(3) and (4) provide a limited alternative where respite or similar care explains why the hours would not have been met.
The two heads are not allowed to overlap. Section 59B(2) prevents an award under s 59A to the extent the same loss is already picked up by an award for gratuitous services under s 59.
Keeping a record of the care
Section 59 imposes no record-keeping requirement. But it turns on hours per week and months of care, and nobody recalls accurately, two years later, how many hours a week went on wound dressings in the third month after surgery. A contemporaneous record makes the nature, duration and extent of the care easier to establish.
A useful care record is dull and specific: the date, who helped, what the task was and how long it took. It separates personal care from domestic work. It records the help that stopped as well as the help that started, since s 59(2) puts the pre-injury position in issue, and it notes hospital admissions, which s 59(3) makes directly relevant. Kept for the whole period, it answers the six-month question without argument.
Published 8 September 2026.
Where this leaves families
The care that families provide after a serious injury is real work, and Queensland law treats it as a loss. It also puts a firm boundary around it. Section 59(1) asks four questions: is the help necessary, does the need arise solely from the injury, is it at least six hours a week, and does it run for at least six months. Section 59(2) adds a fifth: was the same kind of help already being provided beforehand. A record kept at the time is what makes those answerable.
You can read s 59 in the current reprint on the Queensland legislation website.
Related reading
- Injured in a public place in Queensland: who owes a duty of care
- How personal injury costs work in Queensland
- How Fraser Lawyers helps with personal injury matters
- Contact Fraser Lawyers
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This article is general information only and is not legal advice. Queensland law and the figures referred to can change, and every situation turns on its own facts. Contact Fraser Lawyers for advice specific to your circumstances.
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