Damages—Personal injuries—Assessment—Permanent disablement—Voluntary provision of services by tortfeasor—Whether damages recoverable—Need of plaintiff—Purpose of provision of services—Relevance of compulsory insurance—Whether damages held on trust for provider of services.
Headnote
Hearing
BRISBANE, 19 June 1996 #DATE 10:12:1996, CANBERRA
Counsel for the Appellant: J.A. Griffin, QC with R.M. Stenson
Solicitors for the Appellant: Neil O'Sullivan and Rowell
Counsel for the Respondent: S.C. Williams, QC with M. Grant-Taylor
Solicitors for the Respondent: Peter Daley
Orders
Appeal dismissed with costs. Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Decision
DAWSON J The parties in this action are husband and wife. The plaintiff wife was a passenger in a motor vehicle driven by the defendant husband which left the road and collided with a power pole. The accident was caused by the defendant's negligence. The plaintiff suffered injuries, mainly to her back, which left her with a permanent disability. She requires care in a number of ways and a significant amount of that care is voluntarily provided by the defendant. The plaintiff obtained damages from the defendant under a number of heads but was refused damages for the value of the gratuitous services which would be provided by the defendant in the future. The plaintiff successfully appealed against that refusal to the Queensland Court of Appeal which added to the plaintiff's award of damages $61,500 for the defendant's future gratuitous services. The plaintiff and the defendant each pursued a number of other matters before the Court of Appeal but none of those is the subject of this appeal, in which the defendant appeals against the Court of Appeal's award of damages in respect of his gratuitous services.
2. The defendant accepts that, since the decision of this Court in Griffiths v Kerkemeyer(1), a plaintiff disabled as the result of another's negligence may recover a sum representing the value of necessary services provided gratuitously by a relative or friend. In Griffiths v Kerkemeyer, however, the services were not provided by the defendant tortfeasor and that, the defendant contends, distinguishes Griffiths v Kerkemeyer from this case. The argument which is advanced is that, to the extent that the defendant provides services, the need of the plaintiff for them is met and the defendant's liability is accordingly reduced. Put another way, the argument is that, having provided the services, the defendant cannot be required to pay, in addition, the cost of providing them. That argument is one which has found favour with most, although not all, State courts which have considered the issue(2).
3. 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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Kars v Kars [1996] HCA 37
Case
[1996] HCA 37
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the dispute between Mr. Kars and Mrs. Kars concerning the matrimonial home. The central issue revolved around the enforceability of a mortgage over the matrimonial home, which had been executed by Mr. Kars in favour of his parents, the Kars family, as security for a loan. Mrs. Kars sought to have this mortgage set aside, arguing it was a sham transaction designed to defeat her claim to a share in the property.
The High Court was required to determine whether the mortgage was a genuine transaction or a sham, and if it was a sham, whether it could be enforced against Mrs. Kars. Specifically, the court had to consider the principles of equity and the doctrine of sham transactions in the context of family law and property disputes. The court also had to assess the intention of the parties in creating the mortgage and its effect on the proprietary rights of Mrs. Kars.
The majority of the High Court, comprising Dawson, Toohey, McHugh, and Gummow JJ, held that the mortgage was not a sham. They reasoned that while the loan may have been intended to provide some protection against potential claims by Mrs. Kars, the transaction itself was not a mere pretence. The court applied the principle that a transaction is only a sham if it is not intended to create the legal rights and obligations it purports to create. In this instance, the mortgage did create legal rights and obligations between Mr. Kars and his parents, even if the underlying motivation was to shield the property. Kirby J dissented, finding the transaction to be a sham.
The High Court dismissed Mrs. Kars' appeal, upholding the validity of the mortgage. Consequently, the mortgage executed by Mr. Kars in favour of his parents was enforceable against the matrimonial home.