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FEATURE ARTICLE - Advocacy, Issue 102: December 2025

Supporting Claims to Gratuitous Care – To Diary or Not to Diary

BY Travis Schultz - Managing Partner at Travis Schultz & Partners

Since the introduction of the Civil Liability Act and its so-called “6 by 6” threshold for awards of gratuitous care, proving the amount of time spent by those providing care and assistance has never been more important. It can make or break a case and very often, be the difference between recovering standard basis costs or not. And while judges have at times been critical of plaintiffs who haven’t kept a care diary, plaintiff lawyers know that in practice, few would-be claimants will reliably keep a care diary for the lengthy period between the date of accident and trial. We become wedged in a “damned if you do, and damned if you don’t” scenario. But it begs the obvious question – to diary or not to diary?

Courts have rather strictly applied the provisions of section 59(1)(a) and (b) in that the services must be necessary and the need for the services must arise solely out of the injury in relation to which damages are awarded.

The onus of proving that the threshold has been satisfied, rests on the plaintiff and courts have set a high bar for plaintiffs to reach. As was observed by McMeekin J in Paskins v Hail Creek Coal Pty Ltd & Anor[1] (a case which was decided both at common law and under the Workers Compensation and Rehabilitation Act), it is the plaintiff who bears the consequences of any imprecision in the evidence surrounding care.[2]

In Shaw v Menzies,[3] the Queensland Court of Appeal thought that a plaintiff who made a claim for gratuitous care must adduce sufficient evidence to meet each of the separate thresholds imposed in section 59; the necessity, the need and the six hours and six-month requirement. The Court made mention of the “long-standing practice that solicitors advised clients making a claim for damages for personal injury” to “keep a weekly diary recording tasks and time to perform them by a family member”. The court observed that a “failure to have some system” may “mean that a deserving plaintiff may not cross those thresholds”.[4]

Similarly, in cases such as Mandrek v Marstella & Anor,[5] Douglas J, when considering the evidence regarding care to gratuitous assistance found:

“The absence of any diary seeking to detail the services provided and to distinguish them from services provided by the second plaintiff in particular to the first plaintiff before the accident and the likelihood that Mrs Mandrek was providing gratuitous services of the same kind both before and after the accident lead me to conclude, therefore, that the first plaintiff has not established satisfactorily a proper basis for the award of damages for gratuitous services provided to him. I am not satisfied that they had been provided for at least six hours per week and for at least six months. The consequence is that I shall make no award for damages for past or future gratuitous services.”[6]

But is it really prudent for a solicitor acting for an injured person to advise them to keep a care diary? Experience tells us that humans are, after all, human. Typically, an injured person will keep a diary fastidiously in the weeks immediately after a traumatic accident however as time passes and life has to move on, they tend to spend less and less time recording in their diary. This can give the false impression that either the injuries have healed or the need for care has gradually decreased – because where there were once many entries showing a high level of care in the weeks immediately after the accident, there are fewer entries after a few months. This reality can give entirely the wrong impression. And of course, the diary will be disclosable. An injured plaintiff is perhaps best counselled to be realistic as to whether they would be fastidious in keeping a care diary for in excess of six months as otherwise they are probably better not creating a misleading document which will ultimately be disclosable and contrary to their interests.

It is true that some judges apply high standards before accepting evidence of estimates of care provided. The reality is that a trial of a personal injuries claim is being held many years after the accident, and often many years after the care was provided. It stands to reason that a contemporaneous record of care would be much more reliable than an estimate, but in my experience, it’s unrealistic to think that more than 5% of plaintiffs are going to keep a daily record of each task that was performed for them and how long it took.

There are many instances in which estimates provided by plaintiffs and their care providers have been accepted – particularly where they are supported by other evidence such as contemporaneous medical records or reports of occupational therapists. When practitioners are making decisions about whether a particular plaintiff should be advised to keep a care diary, they need to have regard to the way in which courts have dealt with the standard of proof on this issue. Some relevant examples include

Shaw v Menzies[7] – the Court considered that a failure to keep a weekly diary or some other system of record keeping might mean that a deserving plaintiff may not be able to establish the s 59 threshold:

“The Civil Liability Act was introduced in 2003. The requirements for any award of damages for gratuitous services provided to an injured person thereafter are clear:

the services must be necessary;
the need must arise solely out of the injuries;
the services were provided for at least six hours a week for at least six months after the injury.

Accordingly, a plaintiff who includes a claim for damages for gratuitous care must adduce sufficient evidence to meet each of those thresholds. It has been a long-standing practice that solicitors advise clients making a claim for damages for personal injury, particularly where the claim includes a component for gratuitous care, to keep a weekly diary recording tasks and time to perform them by family members. As this case has demonstrated, failure to have some system, because of the requirements of s 59, may mean that a deserving plaintiff may not cross those thresholds.’’[8]

Sutton v Hunter[9] – The court observed what the Court of Appeal had said in Shaw v Menzies and found that in the absence of some relatively contemporaneous record, the evidence of care could not be accepted in circumstances in which the plaintiff did not keep a written record of gratuitous services and provided what he described as a “guestimation” of the services he received to his solicitors – some two years after the accident. The claim to care was for some 2,043 hours of gratuitous services which was largely the care-provider watching his wife after she took medication to ensure that she “wasn’t going to do anything dangerous”
Mandrek v Marstella & Anor[10]– a care claim was rejected in part due to the absence of a diary. The court said:

Cornwell v Imarisio & Anor[12] – where the plaintiff’s evidence as to the amount of care provided was supported by a report of an occupational therapist, Mr Scalia. The court noted that the assessment of the claim for care was largely based on self-reporting but placed little weight on the assessment of care contained in the occupational therapist’s report. Ultimately, the court found that the threshold could not be satisfied because of a lack of reliable evidence. The court said:

“I also accept the submissions made on behalf of the defendants that the factual basis upon which Mr Scalia made his assessment as to past care and assistance has not been established on the evidence. The plaintiff conceded that she had not informed Mr Scalia as to the actual domestic tasks that were being provided to her by care givers. Moreover, the evidence is not sufficiently clear to make a finding as to the actual hours that were being provided to the complaint in the period following the accident to assist her with domestic chores. Mr Spann said in his evidence that he was providing 40 hours of assistance a week but I place no weight on that. Instead, having regard to the limitations described by the plaintiff herself as to what she could and could not do following the accident, in my view there is no reliable evidentiary basis upon which I can conclude that the plaintiff was provided 6 hours a week gratuitous care for at least a 6-month period at any stage since the accident. For this reason section 59 of the Act precludes me from making any award of damages for past care and assistance.”[13]

Polwarth v Woolworths Ltd[14]– The court again noted that no contemporaneous record was kept and cited the views of McMeekin J in Hooper v King that estimates of care provided need to be scrutinised carefully. The plaintiff attempted to rely on medical records to support a submission that high levels of care would have been required but the plaintiff’s estimates of care, largely repeated in the report of the occupational therapist Ms Stephens, were inconsistent with some covert surveillance footage that was tendered in evidence. The care estimates were found to be overstated, and the plaintiff’s occupational therapist Ms Stephens was not accepted and the court found that in the circumstances the threshold imposed by s 59 of the CLA could not be satisfied
Brown v Holzberger & AAI Limited[15]– McMeekin J was critical of the lack of contemporaneous records and imprecise evidence. He said of it:

“The evidence here was imprecise and at times conflicting. No weekly diary was kept despite advice along those lines apparently being given. Little regard was given in evidence in chief to dissecting what care and assistance was accident caused and what merely reflected what had pre-dated the accident, albeit rendered necessary now because of Mr Brown’s disabilities.”[16]

The care claim was rejected.

Armstrong v Mitchell-Smith & Allianz Australia Insurance Limited[17] – McMeekin J observed that there was no evidence led from the plaintiff’s parents who were said to be the care providers and there was no detail in the quantum statement of the tasks with which the plaintiff said he needed assistance. He found that the care threshold could not be satisfied and said:

“No evidence was led from any person who in fact provided assistance to the plaintiff. No evidence was led to demonstrate how the 2 hours per day, or the 4 hours per week, or the 7 hours per week, or the 3.5 hours per week was determined. There was no evidence that any diary or other record was kept. Such a broad brush approach gives the court very little to work on in determining what assistance was in fact provided.”[18]

Chapman v Wide Bay Hospital and Health Service[19]– Rosengren DCJ accepted the defendant’s contention that the estimate of the time spent in assisting the plaintiff needs to be scrutinised carefully. She observed the lack of a diary or contemporaneous record and the arbitrary nature of the estimates provided in evidence as to the amount of time spent providing services:

“Third, no diary or other contemporaneous record of the tasks and time taken of the care in fact rendered to the plaintiff was kept, meaning that the plaintiff and her husband were being asked to recall some events long after they had taken place. If estimates are to be made about matters the plaintiff could have proved more clearly, such estimates ought be conservative. If that in fact results in under compensation, a plaintiff who has failed to provide evidence to support a more adequate assessment has no ground to complain. The imprecise nature of the plaintiff’s estimates is demonstrated for example in the plaintiff claiming that she was still requiring assistance with fetching items up until 26 June 2016, in circumstances where she had returned to work more than two months earlier. Another example is the plaintiff claiming that she was still requiring two hours assistance with driving at the time she returned to work with Advanced Foot Care. This is the same weekly hours as claimed for the entire period dating back to her discharge from hospital in late December 2015. Further, the plaintiff was unable to explain how she arrived at the dates for each of the various periods referred to above. This reinforces the somewhat arbitrary nature of the estimates.”[20]

But there have been cases in which estimates of care by the care-givers have been accepted, despite the absence of a contemporaneous record:

Hoveydai v Mak & Anor[21]– The defendant made submissions that the plaintiff’s care claim was not supported by a diary and suggested that absent that sort of evidence it should not be accepted. This was expressly rejected.[22] Bond J said:

“I reject that submission. Each case must be assessed on the basis of whether the evidence persuades the tribunal of fact. Whilst the preparation of a diary recording tasks and time would have been both advisable and preferable, that does not mean that a case without that detail cannot succeed. In this case, the plaintiff gave evidence before me and her evidence was not undermined during cross-examination. I have earlier explained why I am prepared to accept the assessment made by Mr Siebel as the basis of an award for damages under this heading.”[23]

Thomson v State of Queensland & Anor[24]– Applegarth J rejected the defendant’s submission that the absence of a care diary should be fatal to the care claim. He said:

“The first defendant notes that the plaintiff and his wife did not keep a weekly diary recording the care he received from his wife. It submits that it is common practice that solicitors advise clients making a claim that includes a component for gratuitous care to keep a weekly diary recording tasks and time to perform them by family members. This is a good practice, particularly where there are statutory thresholds on the amount of care provided per week. I accept the first defendant’s submission that a contemporary recording kept when care was provided, in the form of a diary, would be more reliable than one created later. However, detailed instructions were given to Ms Stephenson in 2015 and, in more recent times, the plaintiff and his wife, in consultation with their solicitors have provided detailed instructions about the nature of the care provided and the time taken by the plaintiff’s wife to perform those tasks.”[25]

“The first defendant submits that the claim for past and future care “rests almost entirely on the reliability of the evidence provided by the plaintiff and his wife”. Whilst there were no other lay witnesses, such as family members, who corroborated this part of the claim, I found the plaintiff and his wife to be credible witnesses. The fact that they have a strong obvious interest in the case is not a sufficient reason to disbelieve them. I need to consider objective facts, proved independent of their testimony, including the contents of contemporaneous documents, if they are reliable.11 However, the first defendant does not point to any reliable, independent, objective evidence which discredits the plaintiff’s claim or his and his wife’s evidence. A single entry in a medical record “recently resumed sign painting” does not discredit the plaintiff’s case or his evidence.” [26]

Hooper v King[27]– McMeekin J again noted that as the Court of Appeal had observed in Shaw v Menzies, a plaintiff who neglects to keep a weekly diary recording tasks and times undertaken by friends and family members, a practice which is often urged by solicitors acting for such plaintiffs, can run into difficulties, no matter how deserving. He did, however, find that the s 59 threshold had been satisfied in the absence of a contemporaneous record, based on the evidence of the plaintiff and care providers. He said:

“I should say at the outset that the various witnesses who were called to support this aspect of the claim were patently honest. That they had rendered assistance to the plaintiff from time to time cannot be doubted. However it is true, as the defendants contend, that the estimate of the time spent in assisting the plaintiff needs to be scrutinized carefully. No contemporaneous record was kept and witnesses were asked to recall events long after they had taken place. As the Court of Appeal observed in Shaw v Menzies & Anor a plaintiff who neglects to keep a weekly diary recording tasks and times taken by friends and family members, a practise which is often urged by solicitors acting for such plaintiffs, can run into difficulties, no matter how deserving.”[28]

Allen v O’Donnell & Anor[29] – Crow J identified that the evidence of care givers is superior evidence of the care provided.[30]
Speziali v Nortask Pty Ltd and Anor[31]– Hindman J allowed an award for gratuitous care based on estimates of the plaintiff and his wife. She said:

“I prefer the estimates of the plaintiff and his wife. I am satisfied those estimates reflect a true and accurate recollection of the past care the plaintiff has required.”[32]

The themes that can perhaps be gleaned from these authorities are:

A contemporaneous record of the amount of care provided is clearly superior
Details of the tasks with which assistance is required need to be the subject of evidence
There must be a “need” for the services in the context of CSR v Eddy,[33] but there must also be evidence that the services have in fact been provided because s 59(1)(c) requires that the services “are provided, or are to be provided”[34]
Where a plaintiff provides evidence of the type and amount of services required, it is more likely that these estimates will be accepted where they are supported by independent evidence of the care providers as well as evidence of an occupational therapist or medical specialist to confirm that at that point in time, in the plaintiff’s circumstances and with their injuries, it would reasonably be expected that such services would be necessary.

Whether a plaintiff should be advised to keep a diary or not keep a diary will perhaps depend upon an assessment of the plaintiff’s ability to reliably keep a diary for a long period of time – but in circumstances in which the plaintiff does not seek legal advice until more than six months after the date of the injury, then evidence of this fact should be put before the court to assist in explaining the absence of a contemporaneous record.

[1] [2017] QSC 190.

[2] At [144].

[3] [2011] QCA 197.

[4] At [73].

[5] [2018] QSC 8.

[6] At [42].

[7] [2011] QCA 197.

[8] At [73].

[9] [2021] QSC 249.

[10] [2018] QSC 8.

[11] At [42].

[12] [2018] QDC 138.

[13] At [158].

[14] [2017] QDC 133.

[15] [2017] QSC 54.

[16] At [112].

[17] [2012] QSC 334.

[18] At [75].

[19] [2022] QDC 271.

[20] At [147].

[21] [2021] QSC 16.

[22] At [97].

[23] At [97].

[24] [2019] QSC 95.

[25] At [115].

[26] At [122].

[27] [2011] QSC 324.

[28] At [53].

[29] [2021] QSC 63.

[30] At [134].

[31] [2023] QSC 166

[32] At [120].

[33] [2005] HCA 64.

[34] Sutton v Hunter [2021] QSC 249.

Supporting Claims to Gratuitous Care – To Diary or Not to Diary

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