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loss of earnings for six months. In his analysis of damages for voluntary care, Megaw LJ concluded (at 462):

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…

Hence it does not matter, so far as the defendant’s liability to the plaintiff is concerned, whether the needs have been supplied by the plaintiff out of his own pocket or by a charitable contribution to him from some other person whom we shall call the “provider”; it does not matter, for that purpose, whether the plaintiff has a legal liability, absolute or conditional, to repay to the provider what he has received, because of the general law or of some private agreement between himself and the provider; it does not matter whether he has a moral obligation, however ascertained or defined, so to do.

In Griffiths v Kerkemeyer (1977) 139 CLR 161, the three Justices constituting the Bench, Gibbs CJ, Stephen and Mason JJ, followed the decision in Donnelly v Joyce [1974] QB 454, and held the plaintiff, whose physical condition – attributable to the accident – created a reasonable need for services, was entitled to recover the fair and reasonable cost of these services provided by a relative or f r i e n d , a n d t h a t t h e q u e s t i o n w h e t h e r t h e p l a i n t i f f i s u n d e r a l e g a l l i a b i l i t y , o r a m o r a l o b l i g a t i o n , t o pay for the services is quite irrelevant” (at 163). 1 5

In Van Gervan v Fenton (1992) 175 CLR 327 the severely injured plaintiff was cared for at home by his wife who, in 1985, gave up her employment as a nurse’s aide to attend to her husband on a virtually full-time basis. The wife was then earning about $15,000 net per year. In the husband’s action for damages in the Supreme Court of Tasmania, Cox J assessed the value the wife’s gratuitous services at $277 per week (her former net wages less travelling expenses). The Full Court (Green CJ, Wright and Crawford JJ) upheld the trial judge’s assessment; however, in the High Court, Mason CJ and Toohey and McHugh JJ held (at 331):

[T]he wages forgone by a care provider are not an appropriate criterion for determining the value of services provided gratuitously to an injured person. As a general rule, the market cost or value of those services is the fair and reasonable value of such services. 16

The doctrine was further developed in Kars v Kars (1996) 187 CLR 354 where, as a result of the accident, the plaintiff suffered injuries to her back which left her with a permanent disability. Her need for help in performing everyday tasks was voluntarily provided by her mother, mother-in-law, neighbours and her tortfeasor-husband. The High Court decided that future voluntary services provided by her husband-tortfeasor and valued at $61,500 were compensable because “[f]rom the plaintiff’s point of view, the identity of the person who fulfils the need caused by the tort matters not” (at 380).

At common law, the quantum of damages for past and future gratuitous care is calculated by the value of services required, and is not measured by the actual cost to the plaintiff (which, by definition, is nil), but by reference to the market value of like services.17 Moreover, in Grincelis v House (2000) 210 CLR 321 the majority of the High Court determined that when assessing damages for past gratuitous services, the court should add interest at commercial rates “to take account of inflation”. In separate dissenting judgments, Kirby and Callinan JJ pointed out the incongruity and artificiality of this approach. Kirby J wrote (at [29]-[30]):

[G]iven that the very essence of the entitlement is that the services in question have been provided gratuitously; that the services are not usually donated for reasons of profit-making; that the amount recovered by the plaintiff is not legally repayable to those who provided the services; and that nobody has actually been out of pocket in money terms at all… To add interest upon a sum of money so derived takes logic almost to snapping point. It requires an extension of presuppositions that oblige a court, asked to adopt this course, to pause and ask where logic, in the form of “basic legal principles”, has taken the law.

15 16 17

See also Nguyen v Nguyen (1990) 169 CLR 245 at 262; Van Gervan v Fenton (1992) 175 CLR 327 at 331-333, 338. The approximate market rate applicable at the time was $549 per week (at 339). Van Gervan v Fenton (1992) 175 CLR 327.


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