Both the conceptual basis and the practical operation of the doctrine of damages for gratuitous c a r e h a v e b e e n c r i t i c i s e d . T h e y e a r a f t e r t h e d e c i s i o n i n G r i f f i t h s v K e r k e m e y e r , t h e S c o t t i s h L a w C o m m i s s i o n i n i t s r e p o r t o n D a m a g e s f o r P e r s o n a l I n j u r i e s , 1 8 statements in Donnelly v Joyce: observed in relation to Megaw LJ’s
In cases where services have been rendered gratuitously to an injured person, it is artificial to regard that person as having suffered a net loss in the events which happened. The loss is in fact sustained by the person rendering the services, a point vividly illustrated in cases where he has lost earnings in the course of rendering those services. We suggest, therefore, that it is wrong in principle, in cases where services have been rendered gratuitously by another to an injured person, to regard the latter as having in fact suffered a net loss.
In 1986 Tasmania abolished Griffiths v Kerkemeyer awards for gratuitous services by enacting the Common Law (Miscellaneous Actions) Act 1986 (Tas), s 5, which states:
An award of damages that relates to personal injury of a person shall not include compensation for the value of services of a domestic nature or services relating to nursing and attendance –
(a) which have been or are to be provided by another person to the person in whose favour the award is made; and
(b) for which the person in whose favour the award is made has not paid or is not liable to pay.
In relation to Tasmania, however, Professor Harold Luntz,19 has drawn attention to the fact that, at the time, nearly all claims in Tasmania would have concerned injuries caused by motor accidents. Since the Tasmanian Motor Accidents Insurance Board was providing for these needs under the no-fault scheme, Griffiths v Kerkemeyer damages could be safely abolished.
In England, the House of Lords disapproved of Donnelly v Joyce in Hunt v Severs  2 AC 350, a case which involved a similar claim to that in Kars, whereby gratuitous services were provided to the claimant by her tortfeasor-partner.20 Lord Bridge of Harwich, who delivered the leading judgment in Hunt, preferred (at 361) the reasoning of Lord Denning in Cunningham v Harrison to that of Megaw LJ in Donnelly v Joyce:
With respect, I do not find this reasoning convincing. I accept that the basis of a plaintiff’s claim for damages may consist in his need for services but I cannot accept that the question from what source that need has been met is irrelevant. If an injured plaintiff is treated in hospital as a private patient he is entitled to recover the cost of that treatment. But if he receives free treatment under the National Health Service, his need has been met without cost to him and he cannot claim the cost of the treatment from the tortfeasor. So it cannot, I think, be right to say that in all cases the plaintiff’s loss is “ for the purpose of damages ... the proper and reasonable cost of supplying [his] needs.”
The House of Lords determined that injured plaintiffs who recover damages for gratuitous services should hold them on trust for the voluntary carer. Furthermore, the plaintiff is not entitled to recover damages in respect of those services rendered by the defendant-tortfeasor herself or himself. This is because, once there is a duty to hold the money in trust for the voluntary carer, it makes no sense to require the tortfeasor to pay to the plaintiff a sum of money in respect of the services that the tortfeasor has rendered, and which the plaintiff must then repay to the tortfeasor.
In Kars v Kars (1996) 187 CLR 354 at 372, Toohey, McHugh, Gummow and Kirby JJ expressly rejected the Hunt v Severs approach, and reaffirmed the doctrine in Griffiths v Kerkemeyer formulated by Stephen J,21 for the following reason:
This conclusion [that the claimant has no moral or legal obligation to reimburse altruistic carers for their services] is now too deeply entrenched in this part of the law in Australia for this Court to reopen
18 Scottish Law Commission, Damages for Personal Injuries: 1. Admissibility of Claims for Services and 2. Admissible Deductions, Report No 51 (1978) at .
19 20 Personal communication, 28 March 2005. Plaintiff’s damages included an award of £17,000 for past gratuitous services rendered by the defendant and £60,000 for future voluntary care.
21 “[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”: Griffiths v Kerkemeyer (1977) 139 CLR 161 at 177.