Damages for paid assistance available for worker in "unique" living arrangement
Amongst other things, the Workers’ Compensation and Rehabilitation Act 2003 (WCRA), restricts the availability of damages for the provision of gratuitous services. In Souz v CC Pty Ltd  QSC 36, McMeekin J considered the operation of those provisions in circumstances described as “unique” and determined a total of $136,170.00 was payable to the Plaintiff in relation to past and future services.
The plaintiff moved in with Mrs Walker, an assistant in nursing, sometime after the relevant injury. The plaintiff paid Mrs Walker $300.00:
The court had to consider whether the services provided by Mrs Walker were “gratuitous services” having regard to the definition in section 306D of the WCRA which defines both the terms “gratuitous services” and “paid services”.
The defendant argued that the services were not “paid services” within the meaning of section 306D of the WCRA. This is because they were not provided in Mrs Walker’s “professional capacity or in the course of her business”. The defendant sought to rely on the argument that because the services were not “paid services”, they must be “gratuitous services”. However, McMeekin J found that even if they were not paid services, it was necessary to consider whether they were “gratuitous services” within the meaning of the WCRA.
This required consideration of whether Mrs Walker was a member of the plaintiff’s “household”. The court referred to several dictionary definitions of “household” noting that most definitions refer to people living together who have a familial or friendship type relationship. This could be distinguished from the plaintiff’s circumstances because he moved in with Mrs Walker, a stranger, solely in order to receive the services.
On that basis, the court found that the services provided by Mrs Walker were not “gratuitous services” and the limitation on the availability of damages for the cost of the services provided did not apply. The plaintiff was awarded over $25,000.00 for past paid assistance and over $110,000.00 for future paid assistance.
While this decision further erodes the restrictions placed on the availability of damages for the provision of services imposed by the WCRA, its application will be limited to those unique circumstances where a plaintiff receives services from a stranger in what would otherwise be regarded as a household context. Despite this limited application, the case serves as a reminder that where ambiguity exists, the court will apply a beneficial interpretation to the restrictions imposed by the WCRA.
For more information or discussion, please contact HopgoodGanim Lawyers’ Insurance & Risk team.