Australia: Different thresholds: awards for gratuitous services examined in Queensland and New South Wales

Curwoods Case Note
Last Updated: 22 August 2011
Article by Andrew Parker

Judgment date: 16 August 2011. Shaw v Menzies and Anor [2011] QCA 197. Queensland Court of Appeal1

In Brief

  • Section 59(1)(c) of the Civil Liability Act 2003 (Qld) provides that an injured person cannot be awarded damages for gratuitous services unless the services are provided, or are to be provided for "(i) at least 6 hours per week; and (ii) at least 6 months".
  • The 6 hours per week requirement is not a continuous threshold. Accordingly, once the threshold requirements in s 59(1)(c)(i) and (ii) are met, damages for gratuitous services can be awarded after the 6-month period, even if the services are provided (or are to be provided), for less than 6 hours per week.
  • The above approach is in contrast to the position in New South Wales, as recently enunciated in Hill v Forrester2. In New South Wales the 6 hours per week requirement is a continuous threshold.


The plaintiff brought proceedings against the first and second defendants for injuries and disabilities arising out of a motor vehicle accident that occurred on 12 May 2006.

On the day of the accident the plaintiff had been riding his motorcycle, when the first defendant, who was driving a 12-metre long Kenworth Prime Mover, collided with the plaintiff during a left-hand turn manoeuvre.

The plaintiff alleged significant injuries to the neck, right arm and right leg. Further, the plaintiff alleged that his injuries gave rise to requirement for past and future gratuitous services, as supported in the occupational therapist report he had served.

The trial Judge declined to make an award for past and future gratuitous services on the basis that the plaintiff had not surpassed the threshold requirements in s 59(1)(c) of the Civil Liability Act.

Issues on Appeal

The plaintiff appealed the trial judge's finding that there was no entitlement to damages for past and future gratuitous services. Findings of contributory negligence were also appealed, but that aspect of the appeal is not within the scope of this Case Note.

Gratuitous Assistance

As noted earlier, the trial Judge declined to award damages for past and future gratuitous services on the grounds that the plaintiff had not met the threshold requirements established in s 59(1)(c) of the Civil Liability Act.

For present purposes, the reasoning behind his Honour's findings on the evidence is not relevant. However, the Court of Appeal disagreed with the trial judge and found that the factual evidence did establish that the threshold had been surpassed. Accordingly, damages for both past and future gratuitous assistance were awarded.

The most important aspect of the case was the Court of Appeal's confirmation that once the threshold requirements in s 59(1)(c) are met, damages for gratuitous services can thereafter be provided for less than 6 hours per week.

Is there an ongoing requirement for gratuitous services to be provided at 6 hours per week?


Section 59 of the Civil Liability Act relevantly provides:

"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."

After considering the threshold requirements above, the Court of Appeal confirmed that, once the requirements are met, "damages may be awarded even if [the services provided thereafter are provided for] less than 6 hours a week".3

In support of this view, the Court confirmed the principle espoused in Kriz v King4. In that case, it was held that:

"[As] s 59 restricts the claimant's previously unfettered common law right to seek damages for gratuitous services, the section should only be regarded as limiting that common law right if it does so clearly and unambiguously ... For that reason s 59(1)(c) should be interpreted the way which least diminishes a claimant's common law rights to damages for gratuitous services. Giving the words their ordinary meaning and applying that important principle of construction, it is my view that s 59(1)(c) of the Act has the effect that damages for gratuitous services are not to be awarded unless the services have been provided or are to be provided for both 6 hours per week and for at least 6 months; once that threshold is met then damages for gratuitous services can be awarded even if the services thereafter are provided or are to be provided for less than 6 hours per week.5 [our emphasis]

New South Wales

The above situation can be contrasted with the situation in New South Wales.

Section 15 of the Civil Liability Act 2002 (NSW) and s 128 of the Motor Accidents Compensation Act 1999 (NSW) contain similar provisions. Section 15 of the Civil Liability Act 2002 (NSW) provides (relevantly):

"3. Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided):

(a) for at least 6 hours per week; and

(b) for a period of at least 6 consecutive months."

Notwithstanding the similarities between the Queensland and New South Wales legislation, the provisions in the New South Wales legislation, have been applied in a completely different way.

Specifically, in contrast to the Queensland position, Hill v Forrester6 confirms that the requirement in s 15(3)(a) of the Civil Liability Act, which is in similar terms to s 128(3) of the Motor Accidents Compensation Act, contains a continuous threshold, so that an award for gratuitous services can only be made if the services are provided for at least 6 hours per week.7 If the services drop below 6 hours per week, an award cannot be made for that period.

The New South Wales Court of Appeal has specifically recognised the tension between the 2 States on this point. In rejecting the approach taken by the Queensland Court of Appeal, Sackville AJA said, at paragraph 79, in Hill v Forrester8:

"I respectfully agree with Spigelman CJ9 that little weight should be attached to the principle of construction applied in Kriz v King in interpreting s 15(3) of the CL Act. Quite apart from the general considerations identified by his Honour, it is necessary to bear in mind the circumstances in which the common law recognised (or created) a right to damages for gratuitous services and the rapidity with which the right has been legislatively curtailed."10


The case is important because it confirms that an injured party falling within the Queensland legislation needs only to satisfy the threshold requirements once for gratuitous services. Once the requirements in s 59 are met, gratuitous services can be provided for periods of less than 6 hours in duration.

It is important that insurers, who manage both Queensland and New South Wales portfolios, are aware of the distinction between the respective States. The 6 hour per week requirement contained within the New South Wales legislation is a continuous threshold. Accordingly, an injured party can only recover damages for gratuitous services where it can be established that the services were provided (or are to be provided) for at least 6 hours per week.

1. White JA, Margaret Wilson AJA and Peter Lyons J

2. [2010] NSWCA 170

3. Per Curiam at para 87

4. [2007] 1 Qd R 327; [2006] QCA 351

5. [2007] 1 Qd R 327; [2006] QCA 351 as cited by the Court at 53

6. [2010] NSWCA 170

7. Readers are urged to read our Case Note on Hill v Forrester [2010] NSWCA 170 for a detailed analysis of the Judgment.

8. [2010] NSWCA 170

9. Referring to Harrison v Melhem [2008] NSWCA 67

10. Hill v Forrester [2010] NSWCA 170 at 79

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