Queensland Numbered Acts

CIVIL LIABILITY AND OTHER LEGISLATION AMENDMENT ACT 2010 No. 9 - SECT 10

After section 59--

insert--

'(1) Subject to section 59B, damages (section 59A damages) may be awarded to an injured person for any loss of the person's capacity to provide gratuitous domestic services to someone else (the recipient) if subsection (2) or (4) applies.

'(2) Generally, the court may award section 59A damages only if it is satisfied of all of the following--

(a) either--

(i) the injured person died as a result of the injuries suffered; or

(ii) general damages for the injured person are assessed (before allowing for contributory negligence) at the amount prescribed under section 58, or more;

(b) at the relevant time the recipient was--

(i) a person who resided at the injured person's usual residence; or

(ii) an unborn child of the injured person;

(c) before the relevant time, the injured person--

(i) provided the services to the recipient; or

(ii) if the recipient was then an unborn child--would have provided services to the recipient had the recipient been born;

(d) the recipient was, or will be, incapable of performing the services personally because of the recipient's age or physical or mental incapacity;

(e) there is a reasonable expectation that, if not for the relevant injury, the injured person would have provided the services to the recipient--

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

(ii) for a period of at least 6 months;

(f) there will be a need for the services for the hours and the period mentioned in paragraph (e), and the need is reasonable in all the circumstances.

'(3) Subsection (4) applies if--

(a) the court is satisfied, as required under subsection (2), in all respects other than that the injured person would have provided the services for the hours and the period mentioned in subsection (2)(e) and (f); and

(b) the recipient was provided with accommodation by a parent other than the injured person or with other care to which all of the following apply--

(i) it included accommodation provided other than by the injured person;

(ii) it was provided because the recipient is aged, frail or suffers from a mental or physical disability;

(iii) its primary purpose was to give the recipient or the injured person a break from their usual care arrangements.

'(4) The court may award section 59A damages if it considers that--

(a) the injured person would not have provided the services for the hours and the period because of the provision of the accommodation or the other care; and

(b) awarding the damages is reasonable in all the circumstances.

Examples of circumstances that may make the award reasonable--

1 The injured person would have had custody of the recipient each alternate week for a full week at a time.

2 The recipient would have spent part of their school holidays with a non-custodial parent.

3 The recipient is an elderly parent and is placed in short-term or occasional respite care at a nursing home.

'(5) In this section--

gratuitous domestic services means services of a domestic nature for which there has been, and will be, no payment or liability to pay.

parent includes a person who stands in the place of a parent.

relevant time means--

(a) generally, when the relevant injury happened; or

(b) if the symptoms of the relevant injury were not immediately apparent when it happened, when the nature and extent of the injury becomes known.

'(1) To remove any doubt, it is declared that section 59A damages can not be awarded if the recipient is not a person mentioned in section 59A(2)(b).

'(2) Section 59A damages can not be awarded for loss if, and to the extent--

(a) the injured person can recover damages for gratuitous services mentioned in section 59 for the same injury that caused the loss; and

(b) the provision of gratuitous services to the injured person also resulted, or would also result, in the recipient being provided with the domestic services that the person has lost the capacity to provide.

'(3) Section 59A damages can not be awarded if, and to the extent--

(a) the loss resulted from personal injury to which the Motor Accident Insurance Act 1994 applies; and

Note--

For when the Motor Accident Insurance Act 1994 applies, see section 5 of that Act.

(b) under section 51 of that Act an insurer has paid, or is liable to pay, the cost of providing rehabilitation services to the injured person; and

(c) the provision of the rehabilitation services resulted, or would result, in the recipient being provided with the domestic services that the injured person has lost the capacity to provide.

'(4) An injured person, or an injured person's legal representative, can not be awarded section 59A damages for a loss if the recipient has previously recovered damages for a loss sustained because of the person's loss of capacity.

'(1) In deciding, for section 59A, the value of any gratuitous domestic services that an injured person has lost the capacity to provide to the recipient, the court must take into account--

(a) the extent of the injured person's capacity to provide the services before the relevant time under section 59A; and

(b) the extent to which provision of the services would, if not for the injury sustained by the injured person, have also benefited persons outside the injured person's household; and

(c) the vicissitudes or contingencies of life for which allowance is ordinarily made in the assessment of damages.

'(2) Section 59A damages must be assessed on the injured person's life expectancy immediately before the relevant time under section 59A.

'(3) However, if the injured person's life is shortened by an unrelated event, section 59A damages can not be awarded for any period after the person's death.

Example of an unrelated event--

a life-limiting illness first suffered after the breach of duty happened

'(4) In deciding the amount of section 59A damages, if any, to be awarded to the injured person for a loss of capacity mentioned in section 59A, a court--

(a) may only award damages for that loss as provided under section 59A; and

(b) must not include in any general damages awarded to the injured person a component that compensates the person for the loss of that capacity.

'(1) This section applies to anyone (the claimant), including a recipient mentioned in section 59A(1), who makes a claim for loss sustained because of personal injury suffered by an injured person.

'(2) The claimant can not be awarded damages for a loss sustained by the claimant because of the injured person's loss of capacity to provide gratuitous domestic services if the injured person or the person's legal representative has previously recovered section 59A damages for that loss.'.