Kars v Kars

1. (1977) 139 CLR 161. 2. The reported decisions include Gowling v Mercantile Mutual (1980) 24 SASR 321; Jones v Jones [1982] Tas R 282; Gutkin v Gutkin [1983] 2 Qd R 764; Snape v Reid [1984] Aust Torts Reports ¶80-620; Motor Accidents Insurance Board v Pulford [1993] Aust Torts Reports ¶81-235; Maan v Westbrook [1993] 2 Qd R 267; cf Lynch v Lynch (1991) 25 NSWLR 411; Rosecrance v Rosecrance (1995) 105 NTR 1; 129 FLR 310.

In Griffiths v Kerkemeyer the plaintiff, who was rendered a quadriplegic as the result of the negligence of the defendant, recovered damages which included a sum representing the value of nursing and other services gratuitously provided for him in the past and to be provided in the future by his fiancée and members of his family. In upholding the award, this Court departed from its previous view that expenses in an action for damages for personal injuries could only be recovered where there was, or would be, a legal obligation to pay them [3] . Instead, it followed the decision of the English Court of Appeal in Donnelly v Joyce [4] and viewed the damages in question as damages for one component of the plaintiff's loss occasioned by his physical disability. The disability gave rise to the need for nursing and other care. The need was met by the services gratuitously provided. The value or cost of those services was, in the circumstances, an appropriate means of quantifying that aspect of the plaintiff's loss which was represented by the need [5] .

1. See Blundell v Musgrave (1956) 96 CLR 73. 2. [1974] QB 454. 3. See Nguyen v Nguyen (1990) 169 CLR 245 at 261-262.

It was pointed out in Van Gervan v Fenton [6] that there was a divergence of opinion in Griffiths v Kerkemeyer between Gibbs J on the one hand and Stephen and Mason JJ on the other as to how far Donnelly v Joyce should be taken. Gibbs J thought that the conclusion reached in that case was correct but felt impelled by the decision in Blundell v Musgrave [7] to hold that if the plaintiff's injuries created a need for care, "the loss which sounds in damages is not the need itself, but the cost of satisfying it" [8] . That was not the approach adopted in Donnelly v Joyce where the Court of Appeal made it clear that the plaintiff's loss was the existence of the need. Nor was it the approach of Mason J or Stephen J in Griffiths v Kerkemeyer, both of whom took the view that the damages were to be calculated by reference to the need for services. They did not think, as Gibbs J did, that the need was not sufficient to give rise to an entitlement to damages unless "the satisfaction of the need is or may be productive of financial loss" [9] . As was pointed out in Van Gervan v Fenton [10] a requirement such as that comes close to treating the claim as a claim for special damages and the doctrine established in Griffiths v Kerkemeyer was only made possible by abandoning the rule that, in an action for damages for tort, the reasonable cost of services required is a claim for special damages which can only succeed if the plaintiff has a legal (or perhaps a moral or social) obligation to pay for them. As Stephen J pointed out in Griffiths v Kerkemeyer [11] , the principle laid down in Donnelly v Joyce :

deprives of all substantive significance the distinction between special and general damages: if a plaintiff's accident-caused need is the loss to be compensated, the reasonable cost of satisfying that need being only a means of quantifying the damages to be awarded, the distinction between these two kinds of damages becomes unreal. 1. (1992) 175 CLR 327 at 332-333. 2. (1956) 96 CLR 73. 3. Griffiths (1977) 139 CLR 161 at 166-167. 4. Griffiths (1977) 139 CLR 161 at 168. 5. (1992) 175 CLR 327 at 332-333. 6. (1977) 139 CLR 161 at 179.

The development of the law in England has taken a different turning. In Cunningham v Harrison [12] Lord Denning MR expressed the view that where services were provided gratuitously to an injured plaintiff, damages representing the cost of providing the services were recoverable but the plaintiff would hold the damages on trust to pay them over to the person providing the services. That was not a view which was approved in Donnelly v Joyce, but in Hunt v Severs [13] the House of Lords adopted it, being influenced by the fact that that position had been achieved in Scotland by legislation. Lord Bridge of Harwich said [14] :

But it is nevertheless important to recognise that the underlying rationale of the English law, as all the cases before Donnelly v Joyce [15] demonstrate, is to enable the voluntary carer to receive proper recompense for his or her services and I would think it appropriate for the House to take the opportunity so far as possible to bring the law of the two countries into accord by adopting the view of Lord Denning MR in Cunningham v Harrison [16] that in England the injured plaintiff who recovers damages under this head should hold them on trust for the voluntary carer. 1. [1973] QB 942 at 951-952. 2. [1994] 2 AC 350. 3. Hunt [1994] 2 AC 350 at 363. 4. [1974] QB 454. 5. [1973] QB 942.

Since the acceptance of the rationale in Donnelly v Joyce by this Court in Griffiths v Kerkemeyer, it cannot be said in Australia that the underlying rationale of awarding damages for services provided gratuitously is to enable the carer to receive proper recompense for his or her services. The damages are recoverable to compensate the plaintiff for the loss which is evidenced by the need for the services and it is a matter for the plaintiff whether they are used to recompense the person providing the services. Thus in Griffiths v Kerkemeyer the idea of a trust advanced by Lord Denning was rejected by both Stephen J [17] and Mason J [18] . Stephen J said [19] :

There is, I think, some difficulty in the concept of a trust in favour of a provider attaching to some perhaps wholly unquantified part of an award of damages and this will be the greater if the provider's services lie wholly or partly in the future. However, quite apart from difficulties of this sort, and from those additionally mentioned by Bray CJ in Beck v Farrelly [20] , the plaintiff should, I think, be regarded as beneficially entitled to the judgment he obtains without question of the imposition of any trust in respect of some part of his damages in favour of one who has rendered, or may in the future render, gratuitous services to him. 1. Griffiths (1977) 139 CLR 161 at 176-177. 2. Griffiths (1977) 139 CLR 161 at 193-194. 3. Griffiths (1977) 139 CLR 161 at 177. 4. (1975) 13 SASR 17 at 22.

Once it is recognised, as it must be, at all events after the decision of this Court in Van Gervan v Fenton [21] , that a plaintiff receives the value of services voluntarily provided by way of damages as compensation for the loss suffered by reason of the injuries which manifests itself in the form of a need for those services, and that the need does not have to be productive of financial loss, then cases such as the present one are taken outside the area of special damages, such as loss of wages or out-of-pocket expenses which, at least for the past, may be calculated simply by adding them up. True it is that the value of services provided or to be provided gratuitously to satisfy a need will ordinarily provide a guide in quantifying the damages to be awarded for the loss giving rise to the need, but those damages are general damages which are incapable of precise mathematical calculation and remain at large until quantified. It has been conventional when juries are called upon to assess damages to classify general damages under three heads: economic loss, loss of enjoyment of life and pain and suffering. Economic loss is often said to be the future loss of wages or loss of income but in fact it is for the loss of earning capacity that such damages are awarded. As Fullagar J pointed out in Paff v Speed [22] :

Actual loss of wages or loss of income will have been already taken into account in assessing special damages, and what the plaintiff must receive in respect of the future is compensation for total or partial incapacity to earn income. In the same way the damages which a plaintiff receives for the need for services is compensation for the loss or incapacity giving rise to the need. 1. (1992) 175 CLR 327. 2. (1961) 105 CLR 549 at 559.

That means that the voluntary provision of services to a plaintiff injured as a result of another's negligence is not to be regarded as relieving the plaintiff of expenses which he or she would otherwise have to bear. That is to say, the voluntary provision of services cannot be regarded as being in reduction of a financial loss sounding in damages. If it could be so regarded, damages awarded in respect of past services would fall within the category of special damages and, as was pointed out in Van Gervan v Fenton, that is denied in Donnelly v Joyce and Griffiths v Kerkemeyer. Rather, the provision of voluntary services is to be regarded as a benevolence which is prompted by the ties of friendship, or familial concern or duty. If the benevolence is not to be regarded as compensation, the underlying loss or disability giving rise to the need for the services remains to be compensated. That, then, carries one into an area which is sufficiently identified by the cases even if the principle which the cases lay down is not always susceptible of easy application.

In Australia the starting point is National Insurance Co of New Zealand Ltd v Espagne [23] where the problem which confronted the Court was identified by Dixon CJ in a passage which it is necessary to set out, though it is well-known [24] :

The reasoning begins with a distinction which I think is clear enough in general conception. There are certain special services, aids, benefits, subventions and the like which in most communities are available to injured people. Simple examples are hospital and pharmaceutical benefits which lighten the monetary burden of illness. If the injured plaintiff has availed himself of these, he cannot establish or calculate his damages on the footing that he did not do so. On the other hand there may be advantages which accrue to the injured plaintiff, whether as a result of legislation or of contract or of benevolence, which have an additional characteristic. It may be true that they are conferred because he is intended to enjoy them in the events which have happened. Yet they have this distinguishing characteristic, namely they are conferred on him not only independently of the existence in him of a right of redress against others but so that they may be enjoyed by him although he may enforce that right: they are the product of a disposition in his favour intended for his enjoyment and not provided in relief of any liability in others fully to compensate him. This is readily seen in the case of benevolence. Dixon CJ went on to provide the example of a subscription taken up by neighbours to assist an injured plaintiff. Similarly, the proceeds of an accident insurance policy taken out by an injured plaintiff before he sustained the injury would not be taken into account in assessing the damages to be paid by the person who caused the injury. Of course, in the latter case, it might be said that the plaintiff purchased the benefit himself with the premiums paid for the policy [25] . And in the latter case, as in the former, there may be some qualification of the principle that damages are purely compensatory [26] . However, as Deane J pointed out in Redding v Lee [27] , "another anomaly in a field (damages for personal injury) where the existence of an anomaly is far from anomalous" should occasion no difficulty. 1. (1961) 105 CLR 569. 2. Espagne (1961) 105 CLR 569 at 573. 3. See Bradburn v Great Western Railway Co (1874) LR 10 Ex 1. 4. See Espagne (1961) 105 CLR 569 at 598, per Windeyer J. 5. (1983) 151 CLR 117 at 167.

The provision of gratuitous services to an injured plaintiff by a friend or relative is, to my mind, clearly to be categorised as an act of benevolence where there is no intention that it should result in the reduction of damages recoverable by the injured person. In his judgment in Espagne, Windeyer J asked why the benefits of benevolence do not reduce the recoverable damages and concluded [28] :

The most satisfying of the reasons that have been given for refusing to diminish damages because of voluntary gifts is that they are given for the benefit of the sufferer and not for the benefit of the wrongdoer. That, it may be said, cuts across the principle that damages for negligence are compensatory and not punitive. It may be that, at all events since Bradburn's Case [29] , there are some limits to strictly logical applications of that principle. But I do not think the two propositions necessarily come into collision. A donor can say who is to benefit by his generosity. If, out of sympathy for a man unfortunately responsible for a motor accident, someone gives money to the victim, stating that he does so in the interest of the tortfeasor and to diminish the damages he must pay, effect must be given to his intention. If, on the other hand, the donor's expressed intention is that the injured man shall enjoy his bounty in addition to whatever rights he may have to recover damages from the tortfeasor, effect must in my opinion, be given to that intention. And if nothing be said, the intention of the giver may be inferred from the circumstances. Windeyer J went on to say [30] that where personal injury is productive of private benevolence (and also some other forms of bounty), it is the intent of the donor which is crucial in deciding whether the benefit should be enjoyed in addition to and not in diminution of any claim for damages. If that is the purpose of the benevolence then the law will give effect to it. As Mason J and I put it in Redding v Lee [31] : The subsequent decisions in this Court apply the principles expressed by Dixon CJ and Windeyer J in Espagne. They make it clear that the issue turns on the character and purpose of the particular financial benefit which the plaintiff receives: Was the benefit conferred on him independently of any right or redress against others and so that he might enjoy the benefit even if he enforced the right? 1. Espagne (1961) 105 CLR 569 at 598-599. 2. (1874) LR 10 Ex 1. 3. Espagne (1961) 105 CLR 569 at 599-600. 4. (1983) 151 CLR 117 at 137.

There remains the problem whether such a test is capable of application where the benefit is in the form of gratuitous services provided by a friend or relative who is the tortfeasor whose negligence caused the plaintiff's injuries which, in turn, gave rise to the need for the services. I can see no relevant distinction between a financial benefit and a benefit in the form of services and, for my part, I am unable to see why the character and purpose of the benefit should not be determined by reference to the intent of the provider whether or not that person is also the defendant from whom the injured plaintiff is able to claim damages.

There is no reason in principle why a person who is sued by a friend or relative, to whom he has negligently caused injury, should not provide services gratuitously to that person with the intention that the provision of those services should be in addition to and not in diminution of any damages which that person may recover against him. Perhaps such an intention would have been less common in the past, but now when, as Deane J put it in Redding v Lee [32] , "[a]s a result either of statutory compulsion or accepted standards of business prudence, almost all defendants in actions for damages for personal injuries are insured", it should not be a matter of surprise that a defendant, particularly a relative or friend, should gratuitously provide services, needed by a plaintiff as a result of the defendant's negligence, without any intention of reducing his liability in damages. And, it may be added, where the person providing the services is a friend or relative who is uninsured, it is much less likely that an injured plaintiff would sue that person for damages. It may be correspondingly more likely that the services provided by the defendant are provided with the intention of diminishing his liability in damages.

Where someone other than the defendant provides gratuitous services to an injured plaintiff, it is, perhaps, theoretically easier to discern an intention that the provision of the services should not have the effect of relieving the defendant wrongdoer of any liability. As Lord Reid somewhat forcefully put it in Parry v Cleaver [33] :

It would be revolting to the ordinary man's sense of justice, and therefore contrary to public policy, that the sufferer should have his damages reduced so that he would gain nothing from the benevolence of his friends or relations or of the public at large, and that the only gainer would be the wrongdoer. Whilst those considerations have no application here, that is not to say that it is impossible or, in this day and age, even unlikely, that a defendant should engage in benevolence towards a plaintiff for purposes other than the reduction of his liability to the plaintiff and if that is what occurs then there is no reason why the applicable principle should be any different. 1. [1970] AC 1 at 14.

There is no suggestion in this case that the services provided by the defendant were provided with the intention of reducing his liability to the plaintiff in damages and, accordingly, I would dismiss the appeal.

This appeal concerns the recovery by an injured person of damages in respect of the voluntary provision of assistance by a family member who also happens to be the tortfeasor. Should recovery be refused on the theory that the tortfeasor, in providing the services, is merely reducing the obligations which the law imposes to restore the injured person? Or should it be allowed as an extension of the logic of this Court's earlier decisions and because to do otherwise would wrongfully reduce the injured person's recovery, and ordinarily, give a windfall to the tortfeasor's insurer?

This appeal comes from orders which followed majority opinions in the Court of Appeal of the Supreme Court of Queensland [34] . By its orders, the Court of Appeal reversed the decision of the primary judge (Judge Botting). It held that, in a personal injuries claim by a plaintiff, an award for future gratuitous services should not be reduced on the ground that such services would, on the balance of probabilities, be provided by the defendant to the plaintiff.

1. Kars v Kars [1995] Aust Torts Reports ¶81-369, per Davies and McPherson JJA, Shepherdson J dissenting.

The appeal affords this Court the opportunity to determine the correctness of this holding. It involves a question which has been the subject of conflicting legal authority in this country, as in England. It has also been the subject of conflicting opinions by legal scholars.

Whichever principle this Court embraces, there will be anomalies. They arise, in part, from the novel legal doctrine introduced by the decision of this Court in Griffiths v Kerkemeyer [35] and elaborated in cases since [36] . But they also arise from the existence of compulsory insurance which, for many years and in most litigated motor vehicle injury cases, has substituted the deep pocket of an insurer for what may be the empty pocket of the tortfeasor as the source of the injured party's recovery.

1. (1977) 139 CLR 161; cf Blundell v Musgrave (1956) 96 CLR 73. 2. Nguyen v Nguyen (1990) 169 CLR 245; Van Gervan v Fenton (1992) 175 CLR 327.

It was not suggested that authority of this Court determined the questions now before us, one way or the other. The duty of the Court is therefore to provide its answers in a way which most comfortably conforms to established legal authority, taking into account any relevant considerations of legal principle and legal policy [37] .

1. Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 252.

Mrs Rebecca Kars (the respondent) was seriously injured in a motor vehicle accident on 22 September 1991. The owner and driver of the motor vehicle was her husband, Mr Mark Kars (the appellant). The couple had been married earlier in 1991. At a trial in September 1994, Judge Botting found that "despite great pressures placed upon it by the accident and by the traumas occasioned to the plaintiff as a result of the accident" the marriage had endured and was likely to survive, subject to the normal vicissitudes of marriage breakdown of which his Honour was prepared to take judicial notice. The principal injury to the appellant was to her back. It caused her to be severely restricted in her movements. It required her to rely upon various people for help in performing everyday tasks. The people concerned were her mother, mother-in-law, neighbours and husband. The trial judge found that, until the trial, such help on the part of family members, other than the husband, had taken at least twelve hours a week.

At the trial, there was an agreement between the parties that the allowance which should be included in the appellant's recovery for "[p]ast Griffiths v Kerkemeyer services" was $1,500. This sum was agreed to compensate the appellant in respect of her needs which had been met by her mother, mother-in-law and neighbours. In respect of future Griffiths v Kerkemeyer needs, Judge Botting held that the appellant was entitled to recover $84,500 for future gratuitous services from persons other than her husband. This sum was calculated on the basis that such services would be needed over a period of twenty-five years. He then turned to the "more contentious" question of whether the respondent could recover damages in respect of the future gratuitous services which it was likely that her husband would provide. Having regard to his understanding of the preponderance of legal authority on the point, he concluded that the respondent could not recover damages for such services. Sensibly nevertheless, against the possibility that this ruling might be reversed on appeal, he proceeded to calculate what he would have allowed had such damages been recoverable. He did this by reference to his acceptance of the fact that the appellant had present Griffiths v Kerkemeyer needs which her husband fulfilled which required about seventeen and a half hours per week of his time. Using a rate of $9.50 per hour, and extending this over the estimated period of twenty-five years that was adopted in the calculation of services provided by her mother, mother-in-law and neighbours, he arrived at a "value of the gratuitous services provided by the husband in fulfilling the needs of" the respondent in the future of $123,000. No dispute has arisen about this quantification.

Judge Botting adjusted this sum on the basis that the couple's marriage might break down or that the husband might be rendered unable to provide the services. This led him to the conclusion that the allowance which should be made under this head of damages was half of that which would otherwise have been recoverable if the husband had not been the tortfeasor, ie $61,500. Thus the application of the legal principles which are in contest here resulted in the effective reduction of the respondent's recovery by $61,500.

The respondent appealed to the Court of Appeal against various awards and the appellant cross-appealed. This Court is not concerned with any of the matters raised before that Court save the recovery by the respondent in respect of the future provision of gratuitous services by the appellant. The question is a narrow one. But it is not without difficulty.

Upon the point now before this Court, the judges constituting the Court of Appeal differed in their opinions.

Davies JA gave the principal judgment for the majority. His Honour differentiated between the entitlement of a plaintiff to recover, as part of a verdict, an allowance in respect of past gratuitous services provided by a tortfeasor, and the position in respect of recovery for the likely provision of such services in the future. In respect of the past, he declined to follow the holding of the New South Wales Court of Appeal in Lynch v Lynch [38] . He concluded that to permit recovery with respect to past care would be to "ignore the policy reason underlying the principle on which such damages are awarded: to compensate the care-giver". By reference to s 3 of the Motor Vehicles Insurance Act 1936 Q which affords an indemnity to an insured "against all sums for which he shall become legally liable by way of damages", Davies JA considered that the respondent was not entitled to recover a sum of money "to enable her, if she wishes, to compensate a defendant care giver [the current appellant] where that defendant is entitled to recover from his or her insurer the value of the care given [39] ". But he regarded the position with respect to future care as "quite different" [40] :

No payment having been made or services rendered in reduction of damages in respect of the need, there is no basis either in principle or policy for reducing the plaintiff's [the current respondent's] damages. The possibility or probability that a care giver will continue to render care cannot affect the value of the need for it (although it may affect the extent to which that need is or may be productive of economic loss) and will not have discharged, wholly or in part, the defendant's liability for damages payable for satisfaction of that need by the time they come to be assessed. There is therefore no basis for taking that possibility or probability into account. 1. (1991) 25 NSWLR 411 at 418-419. 2. Kars v Kars [1995] Aust Torts Reports ¶81-369 at 62,816. 3. Kars v Kars [1995] Aust Torts Reports ¶81-369 at 62,816.

McPherson JA, the other member of the majority, considered that the issue as to compensation for the cost of caring for the respondent in the future was settled by the decision of this Court in Van Gervan v Fenton [41] . Although a contrary opinion had since been expressed by the House of Lords in Hunt v Severs [42] , it could not advance the appellant's position in Australia. His Honour took the position in this country to be governed by authority and not "logic, convenience, principle or policy" [43] .

1. (1992) 175 CLR 327. 2. [1994] 2 AC 350 at 361. 3. Kars v Kars [1995] Aust Torts Reports ¶81-369 at 62,817.

Shepherdson J dissented. He did so by reference not only to the decision of the House of Lords in Hunt v Severs but also to two single-judge decisions of the Supreme Court of Queensland [44] and a decision of the Full Court of the Supreme Court of Tasmania [45] . He pointed to the suggested inconsistency of reasoning which would have the effect of depriving a plaintiff of recovery in respect of past gratuitous services but which would award recovery in respect of future services found likely to be provided by the same tortfeasor. He found compelling the reasoning of Demack J in Gutkin v Gutkin [46] :

[W]here the defendant has already met some part of the plaintiff's loss by service or by payment, the plaintiff cannot then prove any loss in respect of that item. 1. Gutkin v Gutkin [1983] 2 Qd R 764 and Maan v Westbrook [1993] 2 Qd R 267. 2. Motor Accidents Insurance Board v Pulford [1993] Aust Torts Reports ¶81-235. 3. [1983] 2 Qd R 764 at 766.

Shepherdson J called in aid the criticism by Professor John Fleming of the decision in Lynch v Lynch [47] . In this way, he affirmed the approach and conclusion of the primary judge. He would have dismissed the appeal.

1. Fleming, Damages Against the Helpful Tortfeasor, Australian Law Journal, vol 66 (1992) 388 at 389.

Before the decision of this Court in Griffiths v Kerkemeyer, the ordinary rule for the recovery of damages was that, general damages aside, a plaintiff could recover damages only where the disabilities had caused, or might cause, financial loss [48] . This principle rested upon the compensatory principle which, subject to well established exceptions, governs the recovery of damages for personal injury at common law [49] . This general compensatory feature of recovery is emphasised many times, both before and after Griffiths v Kerkemeyer, in decisions of this Court [50] and other common law courts of high authority [51] .

1. Graham v Baker (1961) 106 CLR 340. 2. Hunt v Severs [1993] QB 815 at 827, citing Hodgson v Trapp [1989] AC 807 at 819. 3. Blundell v Musgrave (1956) 96 CLR 73. 4. eg, Hodgson v Trapp [1989] AC 807 at 819.

But then a development occurred which was to some extent exceptional [52] . It introduced notions which are to some extent arbitrary [53] . It caused a measure of surprise at the time. We refer to the introduction of the principle that a plaintiff who brings an action in tort may, as part of his or her damages (without joining that person as a party to the action), recover damages in respect of the cost to a family member of fulfilling the natural obligations to attend to the injuries and disabilities caused to the plaintiff by the tort.

1. Lynch v Lynch (1991) 25 NSWLR 411 at 419, per Clarke JA, Gleeson CJ and Hope AJA concurring. 2. cf Sharman v Evans (1977) 138 CLR 563.

The problem of gratuitous care was presented to the English Court of Appeal in an acute form in Donnelly v Joyce [54] . The trial judge in that case awarded damages to an infant plaintiff for the salary which his mother had lost by giving up her employment to look after the child. It was not suggested that there was any legal liability on the part of the child to repay any sum to his mother. The Court rejected the contention that the award of the mother's wages, as part of the infant's damages, contravened the compensatory principle or that the only way that such sums could be recovered was if there was a binding agreement between the infant plaintiff and his mother to render the infant legally liable to the mother for her losses. The Court of Appeal insisted [55] :

The loss is the plaintiff's loss. The question from what source the plaintiff's needs have been met, the question who has paid the money or given the services, the question whether or not the plaintiff is or is not under a legal or moral liability to repay, are, so far as the defendant and his liability are concerned, all irrelevant. The plaintiff's loss is the existence of the need for services, the value of which for purposes of damages - for the purpose of the ascertainment of the amount of his loss - is the proper and reasonable cost of supplying those needs. 1. [1974] QB 454. See also Davies v Borough of Tenby [1974] 2 Lloyd's Rep 469 at 479, per Scarman LJ. 2. Donnelly [1974] QB 454 at 462.

In Griffiths v Kerkemeyer, this Court accepted the principle in Donnelly v Joyce. It did so although it involved a departure from its own earlier holdings [56] . Although certain of the arguments of the appellant in this case appeared to suggest a challenge to the basic principle in Griffiths v Kerkemeyer, no attempt was made to re-argue the point. It has been elaborated by this Court in a number of later decisions. It has been applied by other Australian courts on countless occasions. It has been accepted as part of the common law when legislation has been adopted to modify or abolish this head of recovery [57] . It is too late to go back.

1. See, eg, Blundell v Musgrave (1956) 96 CLR 73. 2. See, eg, s 72 of the Motor Accidents Act 1988 NSW.

In England, the House of Lords in Hunt v Severs [58] has lately criticised as unconvincing the foregoing passage in Donnelly v Joyce [59] . Lord Bridge of Harwich, in the principal speech, sought to re-interpret the governing principle for the United Kingdom [60] :

[I]t is nevertheless important to recognise that the underlying rationale of the English law, as all the cases before Donnelly v Joyce [61] demonstrate, is to enable the voluntary carer to receive proper recompense for his or her services and I would think it appropriate for the House to take the opportunity so far as possible to bring the law of [England and Scotland] into accord by adopting the view of Lord Denning MR in Cunningham v Harrison [62] that in England the injured plaintiff who recovers damages under this head should hold them on trust for the voluntary carer.

By concentrating on the plaintiff's need and the plaintiff's loss as the basis of an award in respect of voluntary care received by the plaintiff, the reasoning in Donnelly v Joyce diverts attention from the award's central objective of compensating the voluntary carer.

1. [1994] 2 AC 350 at 361. 2. [1974] QB 454 at 462. 3. Hunt [1994] 2 AC 350 at 363. 4. [1974] QB 454. 5. [1973] QB 942.

Two points must be noted. The first is that this Court has repeatedly embraced the principles stated in Donnelly v Joyce as accurately stating the foundation of a plaintiff's right to recover damages under this head. In Nguyen v Nguyen, Dawson, Toohey and McHugh JJ said [63] :

The plaintiff's loss in Griffiths v Kerkemeyer was caused by his physical disability. It was in accordance with accepted principle to assess part of that loss by reference to the cost of the services which were required to satisfy the need to which the disability gave rise. What was novel about the decision was the application of that principle even though the plaintiff had not borne and would not bear the cost of the services. The novelty was not in valuing the necessary services, both retrospectively and prospectively; there was nothing new in that. The novelty lay in giving the plaintiff the cost of those services even though he had not paid, and would not pay, for them, in order that he, and not the defendant, should reap the benefit. This focus upon the "need" of the plaintiff was repeated in Van Gervan v Fenton by Mason CJ and Toohey and McHugh JJ when they said [64] : [I]t should now be accepted that the true basis of a Griffiths v Kerkemeyer claim is the need of the plaintiff for those services provided for him or her and that the plaintiff does not have to show that the need "is or may be productive of financial loss". In the light of the consistent line of authority in this Court, it would require the strongest possible reason to depart from these principles. We do not find such a reason in the House of Lords decision in Hunt v Severs [65] . It is true that Donnelly v Joyce [66] , in the passage cited, was more widely expressed than was necessary for the decision in question. It is also true that neither Griffiths v Kerkemeyer nor any of the later applications of that decision by this Court address the precise point now raised concerning recovery where the provider of gratuitous services is the tortfeasor. However, especially because Griffiths v Kerkemeyer was itself an exceptional development which departed from the compensatory principle in its pure form, and has been the subject of statutory modification in parts of Australia, we are not persuaded that this Court should now adopt a different principle. To do so would cause unnecessary confusion and instability in settled legal doctrine. 1. Nguyen (1990) 169 CLR 245 at 262-263. 2. Van Gervan (1992) 175 CLR 327 at 333. 3. [1994] 2 AC 350. 4. [1974] QB 454 at 462.

There is another reason for holding back from accepting the statements of principle in Hunt v Severs [67] . In the passage cited, their Lordships embraced a notion which has been rejected by this Court. It is that an injured plaintiff holds damages under this head on trust for the voluntary carer. It has been said of the holding that the plaintiff holds the damages on such a trust [68] :

This will lead to a bare trust of the amount due to the carer for past services, but what is the position concerning the sum received in respect of future services, especially if the plaintiff dies prematurely or recovers more speedily than anticipated so that a surplus is available? Surely, it will not be held on resulting trust for the tortfeasor but will be retained by the plaintiff or his estate. Moreover, the current carer is surely not intended to have any right to insist on being the "beneficiary-carer", eg if the plaintiff prefers to replace his wife by his daughter or by some paid third party. Thus, it seems that the amount representing cover for future services is held by the plaintiff on discretionary trust for paying for such care as he wants but otherwise for himself absolutely: this is an illusory trust because in reality he is in the position of absolute beneficial owner of such money. We do not pause to further analyse the nature of that suggested trust, which would certainly be peculiar. It is enough to remember what Stephen J said in Griffiths v Kerkemeyer [69] : [T]he plaintiff should, I think, be regarded as beneficially entitled to the judgment he obtains without question of the imposition of any trust in respect of some part of his damages in favour of one who has rendered, or may in the future render, gratuitous services to him. This conclusion is now too deeply entrenched in this part of the law in Australia for this Court to reopen it. It is an accepted principle in Australia that the damages for past and future gratuitous services constitute a sum designed to provide for the injured plaintiff's established needs. That sum may be calculated by reference to what the provider does and even what the commercial costs of doing it would entail. But the focus is upon the plaintiff's needs. The plaintiff might, or might not, reimburse the provider. According to the repeated authority of this Court, contractual or other legal liability apart, whether the plaintiff actually reimburses the provider is entirely a matter between the injured plaintiff and the provider. 1. [1994] 2 AC 350. 2. Underhill and Hayton, Law of Trusts and Trustees, 15th ed (1995), p 124. 3. (1977) 139 CLR 161 at 177.

Neither Griffiths v Kerkemeyer, nor any of the decisions in this Court since, solve the question raised by this appeal. But the litigation in Hunt v Severs in England required the courts of that country to do so, against the background of a very similar line of legal authority. As we will demonstrate, by reference to decisions in the State courts of Australia (and as is demonstrated by the majority and minority opinions under appeal) a difference of opinion emerged. It may be seen, in sharp contrast, by comparing the unanimous opinion given for the English Court of Appeal by Sir Thomas Bingham MR (as the Lord Chief Justice then was) [70] and the unanimous opinion of the House of Lords expressed through the speech of Lord Bridge of Harwich [71] .

1. Hunt v Severs [1993] QB 815. 2. Hunt v Severs [1994] 2 AC 350.

The trial judge in Hunt v Severs had held that the voluntary provision of assistance by a defendant tortfeasor did not, as such, preclude the plaintiff from recovering sums representing the value of such services. The Court of Appeal confirmed this approach by the application of Donnelly v Joyce. Counsel for the plaintiff had submitted that a defendant should not, in effect, have the right to decide to pay damages in kind [72] . Delivering the judgment of that Court (which included Staughton and Waite LJJ), the Master of the Rolls said [73] :

In a case such as the present it does not seem to us realistic to regard the defendant (if the judgment stands) as paying twice, once in kind and once in damages, nor the plaintiff as making double recovery. It might be unlikely, in the family context, that the plaintiff would on a regular and methodical basis pay the defendant the sum awarded for his services. But if the defendant were not rewarded directly, it would seem even more unlikely that the defendant would not enjoy financial benefits from the compensation paid to the plaintiff, including that paid for his services. There is no analogy here with the wheelchair, the panel beater and the fence. In human terms, it would be anomalous if the mother's services in Donnelly's case founded a claim for damages and the defendant's here did not: but for the voluntary services of the mother in that case and the husband in this, paid help (or more paid help) would have been needed, and a claim for the reasonable cost of such help would in each case have been irresistible.

Where services are voluntarily rendered by a tortfeasor in caring for the plaintiff from motives of affection or duty they should in our opinion be regarded as in the same category as services rendered voluntarily by a third party, or charitable gifts, or insurance payments. They are adventitious benefits, which for policy reasons are not to be regarded as diminishing the plaintiff's loss. On the facts of the present case the judge's decision was not in our view contrary to principle or authority and it was fortified by what we regard as compelling considerations of public policy.

The House of Lords reversed this holding, based upon its view that the damages awarded to a plaintiff under this head were held in trust for the voluntary carer and could not be recovered by the tortfeasor. Their Lordships were taken to the conflicting opinions on the point given in the State courts of Australia. Put shortly, they rejected the holding of the New South Wales Court of Appeal in Lynch v Lynch [74] , preferring the criticisms of that decision voiced by Cox J in the Supreme Court of Tasmania in Motor Accidents Insurance Board v Pulford [75] . 1. Hunt v Severs [1993] QB 815 at 820. 2. Hunt [1993] QB 815 at 830, 831. 3. (1991) 25 NSWLR 411. 4. [1993] Aust Torts Reports ¶81-235.

Various comments might be offered on the opinions of the judges of the Queensland Court of Appeal in this case. Davies JA addressed a good part of his reasons to criticism of the decision in Lynch v Lynch [76] which was concerned with past provision of gratuitous services. This was so, although that point was not in issue before the Queensland Court of Appeal because of the fact that the parties had agreed on past damages under Griffiths v Kerkemeyer and apparently to the exclusion of any claim for the husband's past services. It is difficult in principle to see why damages would not be recoverable at all for a plaintiff's needs in respect of the past but recoverable in their entirety in respect of the future, even though it was found to be probable that those needs in the future would be met, as in the past, by a family member who was also the defendant tortfeasor. We agree with the comment of Mildren J in Rosecrance v Rosecrance [77] :

If it is correct to make no allowance for the contingency that the defendant will continue to provide voluntary assistance in the future, it is hard to see on what basis the plaintiff is disentitled to an award in respect of past gratuitous services. The High Court has been at pains to emphasise that the award is not in respect of services - it is in respect of the need of the plaintiff for the services. 1. (1991) 25 NSWLR 411. 2. (1995) 105 NTR 1 at 38; 129 FLR 310 at 347.

McPherson JA considered that the decision in Van Gervan v Fenton [78] resolved the issue before the Court of Appeal and bound him to hold that the entire cost of caring for the plaintiff in the future was unaffected by the possibility that the defendant might be willing, or even bound, to provide such services gratuitously. With respect, we think that the problem was a little more complicated. Van Gervan v Fenton was not concerned with care provided by a defendant tortfeasor. It was therefore necessary to tackle the question whether this factor added a disqualifying element which, with or without the consideration of compulsory insurance, forbade the inclusion in the respondent's damages of an amount calculated, directly or indirectly, by reference to what the appellant, as tortfeasor, would do in the future. This notion of disqualification of the tortfeasor, either because he should not recover from his own wrong, under his own indemnity policy or because any services provided by him merely reduce the damages which the respondent was entitled to recover, needed to be expressly addressed.

Soon after Donnelly v Joyce and Griffiths v Kerkemeyer were decided, Sheppard J, then sitting in the Supreme Court of New South Wales, had to consider the issue now before this Court. He concluded [79] :

[I]n a case where the person providing the service is the defendant, that person discharges his obligation by providing the service. It is no different from a case where he himself provided the paid help. To allow recovery where it has occurred would involve the plaintiff being doubly compensated. 1. Roberts v Roberts (unreported; Supreme Court of NSW; 23 June 1978).

A similar view was expressed in 1984 by Burt CJ in the Supreme Court of Western Australia in Snape v Reid [80] :

It would, in my opinion, be against fundamental principle to allow recovery in such a case. One can assume that the plaintiff's need created by her injuries was created when those injuries were received and that the need was likely to be productive of financial loss. But the need has been satisfied and the loss has been avoided or made good by the services rendered by the defendant. Such damages, if awarded, "would be making him pay twice, once in money and once in kind". 1. [1984] Aust Torts Reports ¶80-620.

The reference to the general principle in Griffiths v Kerkemeyer or Van Gervan v Fenton would not, we think, resolve the argument advanced against recovery in respect of services provided by the tortfeasor.

Shepherdson J joined with Davies JA in criticising Lynch v Lynch . Correctly, we believe, Shepherdson J considered that it was impossible to adopt a different principle for recovery as to past services provided by the tortfeasor and recovery for those found likely to be provided in the future. His Honour's resolution of the need for consistency was to reject recovery altogether. He appears to have been influenced by the reasoning which recommended itself to Lord Bridge of Harwich in Hunt v Severs [81] . Shepherdson J concluded that the damages awarded to a plaintiff for gratuitous services provided by a member of the family were held on trust for the voluntary carer, citing in that regard the House of Lords decision but apparently overlooking the authority of this Court which had earlier rejected the notion. Lord Bridge did not notice the rejection in this Court of the hypothesis of a trust [82] . He proposed the concept to resolve particular difficulties which had arisen between the law of England and of Scotland in this regard.

1. [1994] 2 AC 350 at 363. 2. This rejection had been noted at the time: Gummow, New Model Constructive Trusts in Australia, Law Quarterly Review, vol 94 (1978), 351.

The result is that, although the majority of the Court of Appeal favoured the entitlement of the respondent to recover, in full, the allowance for the need for future gratuitous services found likely to be supplied by her husband, the tortfeasor, no clear principle emerges from the Court's decision unless it was that the mere fact that services were to be provided by the tortfeasor did not, alone, prevent a plaintiff's recovery in respect of such services in the future.

For the appellant, it was complained that this failure to express a clear principle indicated that the Court of Appeal had not come to grips with the arguments of authority and of legal principle which had been advanced to prevent the recovery awarded in favour of the respondent.

A review of the Australian decisions on this point reveals a number of cases the reasoning of which tends to support the arguments of the appellant [83] . On the other hand, in addition to the majority opinion in this case, other Australian decisions reject the notion that the fact that the provider of services is the tortfeasor necessarily forbids recovery [84] . Amongst the authorities which have favoured, generally, the appellant's position is at least one in which a member of the court in question did not embrace the majority view supportive of tortfeasor disqualification. In Motor Accidents Insurance Board v Pulford , Wright J reserved his opinion on this point. He described the approach adopted by the New South Wales Court of Appeal in Lynch v Lynch as "eminently sensible" [85] .

1. eg, Gowling v Mercantile Mutual Insurance Co Ltd (1980) 24 SASR 321; Motor Accidents Insurance Board v Pulford [1993] Aust Torts Reports ¶81-235; Snape v Reid [1984] Aust Torts Reports ¶80-620; Gutkin v Gutkin [1983] 2 Qd R 764; Maan v Westbrook [1993] 2 Qd R 267. See also Underhill and Hayton, Law of Trusts and Trustees, 15th ed (1995), p 121 for confirmation of the stance taken in the Australian authorities. 2. Lynch v Lynch (1991) 25 NSWLR 411; Rosecrance v Rosecrance (1995) 105 NTR 1; 129 FLR 310. 3. Pulford [1983] Aust Torts Reports ¶81-235 at 62,433.

Academic opinion in Australia has also been divided. Professor John Fleming, whilst not unsympathetic to a realistic consideration of the impact of compulsory insurance, as urged in Lynch v Lynch , saw difficulties with the reasoning in that case [86] . On the other hand, Professor Harold Luntz, whilst conceding the paradoxes [87] is critical of a number of decisions relied upon by the appellant [88] . In England, following Hunt v Severs, several writers have criticised the conclusion reached by the House of Lords [89] , supporting instead the reasoning of the English Court of Appeal. This Court, whilst not bound by the House of Lords, takes its opinions into careful account on matters of general common law principle [90] . Because of the confused and uncertain state of Australian authority, it is necessary for this Court to examine the resulting issues for itself. The question is therefore whether the Queensland Court of Appeal erred in varying the judgment of the primary judge to include an allowance in the respondent's damages for the need for future services found likely to be provided by her husband, although he was the tortfeasor liable in law for her damage.

1. Fleming, Damages Against the Helpful Tortfeasor, Australian Law Journal, vol 66 (1992) 388. 2. Luntz, Voluntary Services Provided by the Defendant: A postscript, Torts Law Journal, vol 2 (1994) 184. 3. Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed (1990), pp 218-219. See now Luntz, Voluntary Services Provided by the Defendant: Further developments, Torts Law Journal, vol 4 (1996) 80. 4. Hoyano, The Dutiful Tortfeasor in the House of Lords, Torts Law Review, vol 3 (1995) 63; Matthews and Lunney, A Tortfeasor's Lot is Not a Happy One?, Modern Law Review, vol 58 (1995) 395. 5. Cook v Cook (1986) 162 CLR 376 at 390.

To illustrate the difficulty of the question before the Court, and to define the issue for decision, it is helpful to restate and consider the arguments which support the position taken for the appellant. In summary, they are:

The basic assumption of tortfeasor liability in a case such as the present is the duty to compensate. To the extent that there is any uncertainty in the principle to be applied, it should be resolved by reference to this fundamental consideration. If a defendant tortfeasor has met, or is found likely to meet, the needs occasioned by the damage caused to a plaintiff, the tortfeasor should not be obliged (nor the indemnity insurer required) to pay for the needs twice: once in kind and then in money. The need has already been, or will be, met by the tortfeasor. To the extent that Griffiths v Kerkemeyer, and the cases since, represented a departure from the fundamental principle of compensation, the line should now be drawn. No further derogations should be allowed. Otherwise, basic principle will be distorted and what is, in effect, double compensation will be condoned.

Although it is true that the focus of the provision of compensation is the need of the plaintiff and although, in Australia, there is no trust which obliges, or requires, recompense to the voluntary care giver, the measure of this "need" is clearly related to the activity of the care giver. The identity of the care giver is therefore not wholly irrelevant. Although not required to be paid to the care giver, the purpose of the provision is to afford the plaintiff the opportunity to compensate those who provide voluntary services. If that person is the tortfeasor, he or she is not, in the view of the law, in the same position as another care giver, even in the same family. The tortfeasor is obliged in law to compensate the injured party. The tortfeasor should not, therefore, however indirectly, benefit from the tort through the chance, or realistic likelihood, that some of the damages consequential on the tort will flow back to the household which includes the tortfeasor in recompense for services given to the injured party by the tortfeasor.

So far as future voluntary care is concerned, it is not necessary to disqualify a plaintiff entirely from recovery simply because, at the time of assessment, all, most or some of the voluntary services are being provided by a family member who is the tortfeasor. The approach to be taken, focusing on the plaintiff's needs, will realistically address the possibility that through death, breakdown in relationships, incapacity or other reason, the family member tortfeasor cannot, or will not, continue to supply the services. Then it is necessary (as the primary judge did in this case) to discount the full amount that would be needed by the plaintiff for that proportion which, it is found, will probably be provided by the tortfeasor. The plaintiff will still recover the balance.

To the suggestion that logic produces inconvenient results, depending upon whether or not a particular family member offering care to meet the plaintiff's needs was the tortfeasor, it must be remembered that, so long as recovery depends upon proof of negligence (which may be quite momentary) inconvenient results will sometimes occur. This is not a reason to distort, or to depart unnecessarily from basic legal principles.

As to the suggestion in Lynch v Lynch [91] that a court should give content to the recovery entitlement by taking into its consideration the existence of compulsory third party insurance (and the reality that the damages will be paid to the plaintiff not by the defendant personally but from the insurance fund) two answers are given.

The first is that, at the relevant time, a distinction existed between the third party statute in Queensland and that in New South Wales [92] . Under the New South Wales Act it was competent, as Clarke JA pointed out in Lynch v Lynch [93] , for the plaintiff to sue not the defendant tortfeasor, but the insurer directly. This fact emphasised the apparent absurdity of determining a plaintiff's entitlement to recovery for an established need by reference to the chance consideration of whether the tortfeasor (who supplied voluntary services) was sued or, instead, the compulsory insurer was sued. Although, after the respondent's injuries occurred, the Queensland legislation was amended to afford a facility to sue the insurer, this was not available at the relevant time, at least where the tortfeasor was known and subject to process. More fundamentally, at the relevant time, the liability of the insurer under the Queensland Act [94] was strictly one of indemnity. It was only to pay "the amount of the judgment which [the injured plaintiff] could have so recovered against such insured person". This statutory formula posed the threshold question of what the plaintiff could, in law, recover against the insured person. This, in turn, required consideration of the legal liability of the tortfeasor. Such liability was separate from the compulsory statutory obligation of indemnity. Such indemnity was irrelevant to the legal liability which pre-existed it and should not be permitted to distort it.

1. s 9 of the Motor Accidents Act 1988 NSW. 2. (1991) 25 NSWLR 411 at 420. 3. s 3 of the Motor Vehicles Insurance Act 1936 Q. See now s 23 of the Motor Accidents Insurance Act 1994.

An insistence upon this principle runs through a number of the decisions of State courts which have rejected the line of reasoning in Lynch v Lynch [95] , namely, that the context of compulsory insurance should be given weight in resolving the issue of whether a care-giver's status as a tortfeasor required, in law, the exclusion of such care in computing the injured person's entitlement to recovery. The rejection of this idea has been expressed many times [96] . Essentially its proponents contend that, whilst insurance, including compulsory statutory insurance, is an extremely important feature of the social environment in which tort litigation occurs, such litigation continues, by established doctrine, to treat the existence or absence of indemnity insurance as legally irrelevant. If this doctrine is to be varied, it should be done by statute as part of a more general reconsideration of the relevance of insurance. It should not occur in a small pocket of tort law governing the recovery of damages from a tortfeasor who happens to be a family member providing gratuitous services. Such basic principles of tort law should not be overturned simply to solve a suggested problem which is, in any case, not susceptible to a completely satisfactory solution, whichever rule is adopted. Least of all should a distorting principle be accepted which would create difficulties where the tortfeasor was not insured, or inadequately insured, so that the burden might, in reality, and not just legal theory, fall twice upon the tortfeasor: first, in providing the services and then, in a liability to pay damages to meet a need for services which had been, or were likely to be, provided.

1. (1991) 25 NSWLR 411. 2. Roberts v Roberts (unreported; Supreme Court of NSW; 23 June 1978), cited in Lynch v Lynch (1991) 25 NSWLR 411 at 418. See also Maan v Westbrook [1993] 2 Qd R 267 at 268.

This collection of the arguments in opposition to the conclusion which found favour with a majority of the Court of Appeal demonstrates the strength of the appellant's case. Of course, the arguments on the appellant's part were voiced by his insurer, exercising its rights of subrogation. Whilst the result which most closely accords to established authority and conforms to legal principle and legal policy is not beyond argument, in the end we have concluded against the appellant.

1. The starting point to explain our conclusion is a clear recollection of the principle that the Court is not concerned, as such, to quantify a plaintiff's loss or even to explore the moral or legal obligations to a care provider. It is, as has been repeatedly stated, to provide the injured plaintiff with damages as compensation for his or her need, as established by the evidence [97] . The fact that a defendant fulfils the function of providing services does not, as such, decrease in the slightest the plaintiff's need. Keeping in mind this explanation of the basis for the rationale for the exceptional recovery under Griffiths v Kerkemeyer [98] is essential for working out, in the most consistent and least unsatisfactory way, the practical problems and those of legal principle presented in this case. This was the approach taken to the task of calculation of which Van Gervan v Fenton [99] is an illustration. This case simply identifies another practical problem, the guiding principle for the solution of which is the same: the plaintiff's need.

Griffiths v Kerkemeyer (1977) 139 CLR 161 at 174, 192; Nguyen v Nguyen (1990) 169 CLR 245 at 262; Van Gervan v Fenton (1992) 175 CLR 327 at 331-333, 338. 2. (1977) 139 CLR 161. 3. (1992) 175 CLR 327.

When this focus is kept in mind, the anomaly of depriving the plaintiff of recovery, simply because the care is provided by the tortfeasor, is presented in sharp relief. From the plaintiff's point of view, the identity of the person who fulfils the need caused by the tort matters not. If profoundly injured the plaintiff may even be unaware of who is fulfilling the need. If the mother in Donnelly v Joyce [100] had been the tortfeasor, in the circumstances of that case, she could still have given up her employment to cater for the infant plaintiff's needs. To deny the plaintiff recovery in such a case would not only be unjust to the plaintiff, it would provide the very windfall to the defendant (or, more realistically, his or her insurer) which sustained the original provision of damages for gratuitous services in favour of plaintiffs.

Anomalies arise whichever view is adopted. Where by compulsory motor vehicle insurance legislation the actual driver of a motor vehicle is deemed to be the agent of the insured owner, that owner will be the notional tortfeasor, liable to be sued. If a son, driving a family car, causes injury to his mother, the father who is the owner of the car may, by statute, be sued. On the appellant's arguments, the mother would thereby be disqualified from recovering as part of her damages for her needs the provision of services by her husband although his status as tortfeasor is a statutory fiction. Similar anomalies may occur where two vehicles are involved in a collision and an obligation arises to apportion damages as between the tortfeasors. It seems absurd in such a case, where the head of damage in question concerns compensation for the injured party's needs, to contemplate imposing proportionate liability on the stranger but exempting the family member whose relationship of blood or affection naturally calls forth the kind of voluntary assistance which gives rise to the head of damages in the first place. A solution of legal principle should therefore be adopted which minimises such anomalies, so far as can be achieved without unacceptable distortion of legal doctrine.

Whereas in England a trust obligation to recompense the provider of services has been accepted as the law [101] , such an obligation has been rejected by this country. Whilst it may be conceded that, realistically, the fund for voluntary care provided in the plaintiff's verdict will often inure indirectly to the benefit of the tortfeasor, this is, in our legal theory, entirely a matter for the plaintiff to whom the damages are paid for the plaintiff's needs. Thus, there is no necessity that the damages should be paid for the services provided to the tortfeasor, still less in the proportions which, for convenience, are used to calculate the sum that is provided to meet the plaintiff's needs.

If the foregoing approach were not adopted, the result would be that a plaintiff, whose needs are in question, would have his or her damages effectively reduced by the fact that those needs were met, in whole or part, by the family member who was the tortfeasor. Inevitably, tortfeasor family members would be advised to enter into binding legal agreements with the injured person in an endeavour to establish an alternative legal basis for the obligation to provide such services [102] . Plaintiffs and their families would be encouraged to minimise the contribution made by the family member who happened to be the tortfeasor. Moreover, they would be advised that they should look to commercial care givers, at least before judgment, to avoid the disqualifying contributions of the family member who was the tortfeasor. Form would once again triumph over substance. This would have a tendency to bring the law into disrepute. It should, if possible, be avoided.

1. cf Rosecrance v Rosecrance (1995) 105 NTR 1 at 36; 129 FLR 310 at 345-346.

6. It is by no means certain that, as urged by the appellant, the provision of voluntary services by a tortfeasor would necessarily be classified as conduct reducing the tortfeasor's liability to the plaintiff, such that the insurer could take advantage of it. Quite apart from the fact that the services in question are typically provided in kind, and without financial recompense, their character for legal purposes would depend upon the intention of the parties. Otherwise, as Mildren J points out in Rosecrance v Rosecrance [103] an insurer would be entitled to plead, in reduction of its liability to an injured wife, all sums paid to the wife by the tortfeasor husband for housekeeping or like purposes. Such payments, or the value of services to fulfil a plaintiff's needs, may only be brought into account if that was the intention of the parties concerned. This is something that is scarcely likely to happen in the circumstances of an ongoing relationship.

7. There is an element of artificiality in the argument that the tortfeasor "pays twice". The plaintiff's needs remain exactly the same. Upon the hypothesis adopted, the tortfeasor provides the caring services. He or she does not additionally pay money to the injured party to fulfil that party's established needs. Such money is paid by a compulsory insurer. Whatever may be the position in the case of voluntary insurance, in cases of compulsory third party motor vehicle insurance the obligation to insure is established by law. To that extent, it is not res inter alios acta. It is the statutory environment within which the tort occurs. Involved is not a private contractual arrangement which a person can secure or refuse at will, but an obligation established by law. True, it is an obligation of indemnity. But it is indemnity for which the tortfeasor pays premiums to a fund to meet, relevantly, the needs of persons injured in motor accidents including those which cause dependence upon others for gratuitous services.

8. As to the concern that this approach would open the gateway to a challenge to the conventional structure of the action in tort, as something separate from the entitlement to insurance indemnity, we would say two things. First, a review of the relevance of insurance to the development of the common law liability in tort may indeed be timely [104] . However, this is not the occasion for it. In the present case, in a context of compulsory insurance provided by legislation, resort is had to the fact of such insurance to do no more than to recognise the reality that the source of the provision of services is not identical to the source of the plaintiff's recovery. It is used simply to contradict the argument of the appellant resting on a manifestly false premise of fact. Secondly, we see no large problem in the suggestion that some cases will exist, outside the area of compulsory insurance, where the tortfeasor is not insured. If that is so, it is much less likely, as a matter of practical reality, that litigation will ensue. It is virtually unthinkable that it will occur within a family situation such as the present. It is a completely unrealistic consideration where the parties are in a continuing relationship and what is in question is compensation for a plaintiff's needs for past support and the prospect of future support from a family member.

1. cf Lamb v Cotogno (1987) 164 CLR 1 at 11-12; Cotogno v Lamb [No 3] (1986) 5 NSWLR 559 at 570-572; Western Suburbs Hospital v Currie (1987) 9 NSWLR 511 at 518. See also the cases referred to by Mildren J in Rosecrance v Rosecrance (1995) 105 NTR 1 at 33; 129 FLR 310 at 343.

The result which is reached is not wholly satisfying. But a consideration of the conflicting opinions, judicial and academic, in Australia and England demonstrates why this is so. In the end, a choice must be made as to the least unsatisfactory solution to the problem.

The choice which we prefer reduces the anomalies and absurdities. It lays emphasis on the provision for the injured plaintiff's needs which is the foundation of recovery in such a case. It avoids an effective windfall to a compulsory statutory insurer, which would depend on its taking advantage of the fulfilment by a family member (who happens to be the tortfeasor) of obligations derived from duty and affection. It measures to the full the plaintiff's need for services. To the extent not already done, it requires their reflection in the premium costs of compulsory insurance levied on insureds as a whole. It reduces the risk of real injustice to a plaintiff should a court, discounting the damages for the plaintiff's needs to be fulfilled by the tortfeasor, fail adequately to take into account the vicissitudes of life which could throw the plaintiff back on others, including commercial care givers, for services no longer provided by the tortfeasor.

In the result, the Court of Appeal was right to vary the judgment entered by the primary judge, although for reasons different from those given. As ordered, that judgment should include, in its entirety, the respondent's established need in the future for care to be provided by neighbours and family members, including by the appellant. The fact that he was the tortfeasor did not reduce the respondent's entitlement in this regard. Because of the agreement of the parties at trial as to the quantification of the past needs of the respondent, satisfied by voluntary services, no question arises as to that component of the judgment.