The main difficulty in assessing damages for needs created is in the impossibility of surely predicting the future.
The principled approach would be to either create a discrete cause of action for voluntary carers with defined elements and appropriate legal standards, or to provide special statutory benefits for them at either commercial rates or in conformity with average weekly wages. However, given that the Griffiths v Kerkemeyer head of damages is now codified, it will probably take another professional indemnity crisis before this issue is addressed.
More fundamentally, once the common law of negligence has reconceptualised itself in terms of a need-based compensation institution, the question arises why should the community – through its legal system – discriminate against the carers of injured persons who have the same needs but are unable to prove fault? There are valid economic, equitable, compassionate and transparency reasons f o r j e t t i s o n i n g t h e c o m m o n l a w t o r t o f n e g l i g e n c e r e l a t i n g t o p e r s o n a l i n j u r y , i n f a v o u r o f a n a t i o n a l no-fault insurance scheme for injured persons who are in need of long-term care and attendance. 6 0
60 Luntz H, “The Case for No-fault Accident Compensation” (1985) 15 Q Law Soc J 161; Luntz H, “Reform of the Law of Negligence: Wrong Questions – Wrong Answers” (2002) 25 UNSWLJ 836; Luntz H, “Guest Editorial: Medical Indemnity and Tort Law Reform” (2003) 10 JLM 385.