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very serious injuries requiring constant nursing attention (at 504).11 needs created by the injury thus (at 506):

Windeyer J described the kinds of

In most cases the most obvious of such needs are the cost of past and future medical and nursing attention, and of special equipment, crutches, a wheel chair and such like. But the list is not closed. Any requirement which arises as a consequence, and a not too remote consequence, of the injury, can I think be considered.

The court in Teubner v Humble assumed that, in accordance with the Blundell v Musgrave principle, the plaintiff would only be compensated for needs giving rise to financial loss, which but for the injury would not be incurred. This principle of calculating damages for services on the basis of past and future financial loss was jettisoned in Griffiths v Kerkemeyer (1977) 139 CLR 161, in which the plaintiff had been rendered a quadriplegic by the defendant’s negligence. In issue was the question whether damages, including an amount for past and future nursing and other services provided gratuitously by the plaintiff’s fiancée and family, were recoverable. The court reconceptualised the notion of compensation by adopting Windeyer J’s idea that plaintiffs can recover damages for loss as manifested by the needs created by the wrongful injury, but extended it to cover a need for services provided on voluntary basis.

The concept of injured persons being paid because as a result of the accident, or for some other reason, they have certain financial needs is common to insurance law, statutory benefits systems and n o - f a u l t c o m p e n s a t i o n s c h e m e s . I n t h e p r i v a t e l a w c o n t e x t , t h e a d o p t i o n o f t h e c o n c e p t o f c o m p e n s a t i o n b a s e d o n t h e p l a i n t i f f s l o s s , a s r e p r e s e n t e d b y h e r o r h i s n e e d , 1 2 p r o v i d e d a r a t i o n a l e f o r c r e a t i n g a n e w c a t e g o r y o f c o m p e n s a t i o n f o r g r a t u i t o u s c a r e a n d a t t e n d a n c e b y r e l a t i v e s a n d f r i e n d s . 1 3 H o w e v e r , s i n c e i t w a s r e a l l y t h e t h i r d p a r t i e s w h o s u f f e r e d t h e l o s s t h r o u g h p r o v i s i o n o f t h e g r a t u i t o u s s e r v i c e s , b u t w h o , a s a g e n e r a l r u l e , 1 4 unclear how to apply the new rule. had no right to sue the claimant’s injurer, it was

At the time, two decisions of the English Court of Appeal adopted different approaches to the issue of awarding gratuitous damages. One was Cunningham v Harrison [1973] QB 942, in which the Court of Appeal held that the injured husband was entitled to claim compensation for his wife’s voluntary care and services, but he was to hold the money on trust to pay them over to her. Lord Denning MR (at 952) stated:

It seems to me that when a husband is grievously injured – and is entitled to damages – then it is only right and just that, if his wife renders services to him, instead of a nurse, he should recover compensation for the value of the services that his wife has rendered. It should not be necessary to draw up a legal agreement for them. On recovering such an amount, the husband should hold it on trust for her and pay it over to her. She cannot herself sue the wrongdoer … but she has rendered services necessitated by the wrong-doing, and should be compensated for it. If she had given up paid work to look after him, he would clearly have been entitled to recover on her behalfbecause the family income would have dropped by so much.

A day after the Cunningham decision, a differently constituted Court of Appeal handed down the judgment in Donnelly v Joyce [1974] QB 454. This case involved a child, Christopher Stefan Donnelly, who sustained injuries to his right leg in a road accident caused by the defendant’s negligence. He was in hospital for three months. Afterwards, Christopher’s mother gave up her paid part- time job for two years in order to attend to his needs. These included taking Christopher to the hospital daily for two months, as well as special daily bathing and dressing of the injured leg. Although Christopher was under no obligation to repay his mother for her services, the child claimed damages for the mother’s

11 The injuries included partial paralysis, amputation of his left leg, as well as cognitive impairment. In 1961, he became an inmate of the Home for Incurables at Fullarton, Adelaide.

12 13 Griffiths v Kerkemeyer (1977) 139 CLR 161 at 178. The courts awarded damages for gratuitous services by third parties long before the articulation of the doctrine. For example, in Roach v Yates [1938] 1 KB 256 damages were awarded loss of wages foregone by the wife and sister-in-law of the injured plaintiff (they had to give up their paid employment to look after him).

14 At the time, husbands, but not wives, could sue in certain cases for loss of consortium or loss of services, and some family members could recover damages for nervous shock: see Hambrook v Stokes Bros [1925] 1 KB 141.


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