Kars v Kars

[1996] HCATrans 183

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B12 of 1996

B e t w e e n -

MARK JOSEPH KARS

Appellant

and

REBECCA DAWN KARS

Respondent

DAWSON J
TOOHEY J
McHUGH J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 19 JUNE 1996, AT 2.42 PM

Copyright in the High Court of Australia

MR J.A. GRIFFIN, QC:   May it please the Court, I appear with my learned friend, MR R.M. STENSON, for the appellant.  (instructed by Neil O’Sullivan & Rowell)

MR S.C. WILLIAMS, QC:   May it please your Honours, I appear with my learned friend, MR M. GRANT‑TAYLOR, for the respondent.  (instructed by Peter Daley)

DAWSON J:   Yes, Mr Griffin.

MR GRIFFIN:   Might we hand up five copies of the outline.  The narrow issue for the Court’s determination is, of course, whether the plaintiff’s damages for future care should include damages in respect of care which is likely to be supplied by a defendant tortfeasor or, how we would perhaps prefer to put it, whether damages for future care can be discounted to the extent to which it is likely that such care will be provided by the defendant tortfeasor.

Might I at the outset clarify some matters by way of introduction, your Honours.  Your Honours will see that when this matter was before the Court of Appeal there were cross‑appeals which related to a number of issues, including issues relating to future gratuitous care other than the issue which is before this Court.  The issue that was before this Court was the one determined by majority, Mr Justice Davies and Mr Justice McPherson, with Mr Justice Sheperdson dissenting, and that resulted in the appeal being allowed in part.  There was another aspect to the respondent’s appeal on which the respondent was not successful and which does not concern this Court.

Neither of the appeals that were before the court concerned the issue of past care because that had been the subject of an agreement between the parties.  So all that this appeal relates to is the correctness, in effect, of the discount that was made by the trial judge in the award of damages to the extent to which future care was in his view likely to be supplied by the defendant tortfeasor.  The relevant accident occurred on 2 September 1991.

TOOHEY J:   Could I just ask you this, Mr Griffin.  I remember this coming up on the application for special leave to appeal and you being asked what the consequences were if the appeal were successful and you said, in effect, that the judgment of the primary judge would simply be restored.

MR GRIFFIN:   That is right.

TOOHEY J:   The orders sought on page 60 ask that the appeal be allowed.  Why is it not enough for your purposes to have the appeal to the Court of Appeal dismissed?

MR GRIFFIN:   That would be sufficient, your Honour.

TOOHEY J:   There is no need for this Court, if it was minded to allow the appeal, to make orders for payments of particular amounts.  It would be just sufficient to allow the appeal and dismiss the appeal to the Court of Appeal, would it not?

MR GRIFFIN:   Yes.  That would have the effect of restoring the assessment by the trial judge.

TOOHEY J:   Yes, thank you.

KIRBY J:   There is no other matter that was the subject of agreement in the Court of Appeal that would be affected by such a change in the orders?  There is nothing that you fixed up in the Court of Appeal?

MR GRIFFIN:   No, your Honour.  This aspect simply results in a financial difference in that the trial judge, in effect, discounted, by the sum of I think $61,500, the award that he would otherwise have given for future care.  The award that he otherwise would have given was the $123,000 for the care of the kind that the defendant was providing, plus a further $84,500 for the care that others were providing.

On that topic, your Honours will recall that it was made a condition of the grant of special leave that the appellant pay the respondent’s costs of this appeal in any event and that is why that last part of the order sought appears in that form.  Your Honours will have seen that the respondent suffered a back injury in the accident.  She suffered a 35 per cent disability to her back, the result of which was that she was disabled to the point where she could not engage in full‑time work or a lot of part‑time work.  Damages in this instance were assessed by a District Court judge as a result of the matter being remitted to the District Court by the Supreme Court for the assessment of damages.

Your Honours will have seen that the appellant and the respondent had been married on 31 May 1991 and that the primary judge, in effect, held that the marriage was a solid and substantial one.  There is a finding to that effect at page 28 of the appeal book, lines 35 to 40.  What he said was that:

the marriage obviously has endured to this time despite great pressures placed upon it by the accident and by the traumas occasioned to the plaintiff as a result of the accident.

The Court will have noted that the basis for Mr Justice McPherson’s judgment was that the issue in this case was concluded by this Court in Van Gervan v Fenton 175 CLR 327 and he reached that conclusion by reference to the fact that in the judgment of Chief Justice Mason and your Honours Justice Toohey and Justice McHugh there was a reference to the statement of Lord Justice Megaw in Donnelly v Joyce.  That appears at the foot of page 331 where his Lordship said:

“The loss is the plaintiff’s loss.

Then the next sentence is the one that was regarded by Justice McPherson as concluding the matter:

The question from what source the plaintiff’s needs have been met, the question who was 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.  The plaintiff’s loss, to take this present case, is not the expenditure of money to buy the special boots or to pay for the nursing attention.  His loss is the existence of the need for those special boots or for those nursing services, the value of which for purposes of damages - for the purpose of the ascertainment of the amount of his loss - is the proper and reasonable cost of supplying those needs.

If I could just stop there ‑ ‑ ‑

KIRBY J:   Which page was that, I am sorry?

MR GRIFFIN:   Pages 331 to 332, your Honour.  May I just emphasise the words that his Lordship used, “of supplying those needs”, because, as your Honours will see, it is one of our contentions that damages in this area, whilst based on need, are also based on an assumption that the need will be satisfied and that damages would not be awarded in instances in which that were not the case.  But to revert to Mr Justice McPherson’s approach, it is our submission that neither in Donnelly v Joyce nor in Van Gervan v Fenton were the courts at all concerned with the issue of care provided by a defendant tortfeasor.

Donnelly v Joyce like Griffiths v Kerkemeyer itself was concerned with whether damages for care were recoverable, notwithstanding that the care was supplied gratuitously by a relative or a friend and it was in that context that his Lordship propounded the need analysis.  It was in that context in which he said that “The question from what source the plaintiff’s needs have been met” is irrelevant because in the circumstance in which one is debating whether or not gratuitous care is compensable, it is quite appropriate to say that the question from what source the needs have been met is irrelevant in the sense that one is saying it does not matter if it is a commercial carer who satisfies the need or it is a relative or friend.

Van Gervan v Fenton itself was not concerned with the question of care supplied by a defendant.  Van Gervan v Fenton was particularly concerned with the question of whether the proper measure of care was the loss to the provider or the commercial cost of supplying care.  That was a case that your Honours will recall involved a person giving up a reasonably lucrative job in order to perform the care and the question with which the Court was concerned was whether the proper measure of the damages was the commercial cost of providing that care.

A subsidiary issue was whether the care that was being provided was the same as care that would be provided on a commercial basis if a commercial carer had been involved, but, again, Van Gervan v Fenton did not address either directly or, in our submission, indirectly the question that is involved here which, in our submission, does entail considerations unique to this issue.  It is our submission that previous decisions of this Court did not either expressly or implicitly address it.  In cases in which the issue has been addressed, if I can just deal with them generally first, the weight of authority has been against allowing damages for care in this category.  We have set out the major decisions in paragraph 2 of our outline and, of course, now added to the list is the decision of the House of Lords in Hunt v Severs, which holds that damages should not be allowed under this head either in relation to past or future care, and I will come to that decision in more detail shortly.

Dealing with the other cases on that list, Gowling’s Case only seems to have involved the past but, whilst dealing with Gowling’s Case might, we simply draw your Honours’ attention to the fact that Chief Justice Bray is amongst those judges that took the view for which we contend.  He was not one of the judges in Gowling’s Case, but in Gowling’s Case (1980) 24 SASR 335 there is a reference to what Chief Justice Bray said in an earlier unreported South Australian case of Doble v Brunton where he said that to allow damages in this category:

would be making him -

ie, the defendant -

pay twice, once in money and once in kind”.

McHUGH J:   That is really an argument for the triumph of form over substance.  The accident occurs, the husband says, “Well, we’ll sign this written agreement.  You’ll pay me $100 a week”.  Then the plaintiff is entitled to recover the amount.  I mean, it is absurd, is it not?

MR GRIFFIN:   If it is a genuine agreement, that may well be so, your Honour.

McHUGH J:   I mean, should the law engage in that sort of fine distinction so that the plaintiff who is not advised sufficiently well to get her husband tortfeasor to enter into a contract to provide the services misses out while somebody who is properly advised recovers the damages?  I mean, these are all questions of policy.  I think as a matter of form you are absolutely right.  If this case had been decided in 1935, the answer would have been fairly plain, I would have thought, but can we approach it on that basis, Mr Griffin?

MR GRIFFIN:   In our submission, your Honours must approach it on that basis because these matters must be seen for reasons that have been given and reasons that have appealed to these courts on the basis ‑ ‑ ‑

KIRBY J:   Yes, but I think you have conceded there is no binding authority of this Court, there is no holding because the problem has not arisen in the precise form; therefore, we are committed back to trying to find relevant authority, and there is authority that points both ways, and in that case Justice Deane in Fay’s Case says you therefore look to legal policy and legal principle and, if we look to legal policy and legal principle, it just seems somewhat artificial in this day and age to ignore the fact that this law has developed in harmony with compulsory insurance systems.  It may be that that is what we should do and it may be that the balance of authority favours the view that you put and that we have got to try to fit it into that balance of authority.

MR GRIFFIN:   Of course, there is a ready answer if this result is desired and that is to change the basis upon which these cases are litigated and, for example, to provide that the plaintiff sues the insurer direct, but that is not the way it is done.  The cases are litigated on the basis that it is an inter partes matter.

McHUGH J:   I may be wrong but I think in New South Wales since I left the Bar you sue the insurance company.....rather than the defendant.  I am not sure about that.

MR GRIFFIN:   Your Honour, there is a trend in some jurisdictions that way.

KIRBY J:   But you say that has been done by statute.

MR GRIFFIN:   Yes, that has been done by statute.  In this jurisdiction it is now provided that one sues the tortfeasor and the insurance company, but that was not applicable as at the date of this case.  As at the date of this case you had litigation between a wife and her husband and, as Mr Justice Davies pointed out ‑ ‑ ‑

GUMMOW J:   Which itself only took place because of statute.  So you cannot consider this in terms of pure common law.

MR GRIFFIN:   No, except that what the statute provides quite specifically is that the insurer is obliged to pay what the defendant would be obliged to pay.  It is nothing more or less than indemnity insurance.

McHUGH J:   I know, but that also raises the point that Justice Kirby raised in the special leave application that the defendant husband is paying premiums to insure himself.  So, in effect, he is being deprived of that, is he not, the benefit of his insurance?

MR GRIFFIN:    He is not because one has to look at it this way, that the cases that we are really concerned about are the cases in which care is provided gratuitously and the plaintiff receives money as part of his damages for that gratuitous care.  We are not really concerned here with care that is provided on a commercial basis.  Now, in that kind of case, where, as often happens or as one would suspect often happens, the plaintiff obtains the damages but has the care supplied gratuitously, the plaintiff has a windfall because he receives the care but receives as part of his damages $100,000, let us say.  Now, when a third party supplies that care, one can see how it is appropriate to say to the defendant, “You don’t get any benefit from that because that care is being supplied by a third party”.

KIRBY J:   It is hardly a windfall.  He has to do the work that is required to get the damages.

MR GRIFFIN:   Your Honour, it is a windfall in so far as the plaintiff is concerned because the plaintiff has the need for the care, has the care supplied and ex hypothesi does not have to pay for that care.

KIRBY J:   When we are talking about windfalls, is it not a bit of a windfall for the insurer, looking at it realistically, that because the defendant is the person who supplies the services that the insurer walks away without any obligation to pay?

McHUGH J:   Is not the true policy, the true rationale of Griffiths v Kerkemeyer, of Van Gervan, that the doctrine is a device to pay the third party, whoever it is, the person who has rendered the services?

MR GRIFFIN:   Your Honour, we adopt that proposition and we say the consequence of that proposition leads to our basic proposition being accepted.

McHUGH J:   Well, it is to the contrary view because the doctrine should lead to the view that you pay the defendant who provides the services.

MR GRIFFIN:   The one situation in which you do not pay the defendant is if he supplied the services gratuitously.

KIRBY J:   You say you do not pay him because he is the person who caused the fault in the first place.

MR GRIFFIN:   He is the defendant.  It is quite contrary to principle to then pay him for services that he intended all the time to be gratuitous.

DAWSON J:   What do we say about what was said in Hunt v Severs that the rationale is that the voluntary carer is to receive the payment and that damages under that head are held in trust for the voluntary carer?  That is not the law in Australia, is it?

MR GRIFFIN:   Your Honours, that is not the law in Australia.

DAWSON J:   It is said to be the whole rationale.

MR GRIFFIN:   Your Honour, we submit that that is not the whole rationale of the case.

GUMMOW J:   It would be a pretty odd trust.

McHUGH J:   It is an odd trust.

MR GRIFFIN:   Your Honours, could we take your Honours to Hunt v Severs, seeing it has been raised.

KIRBY J:   You are going to the House of Lords decision?

MR GRIFFIN: House of Lords, yes, your Honour, (1994) 2 AC 350. Now, the starting point is at page 357H where his Lordship says at the foot of the page:

The starting point for any inquiry into the measure of damages which an injured plaintiff is entitled to recover is the recognition that damages in the tort of negligence are purely compensatory.  He should recover from the tortfeasor no more and no less than he has lost.

McHUGH J:   On that basis he should not get anything under Griffiths v Kerkemeyer because he has not lost anything.  The services have been provided for him, so he should not get anything.

MR GRIFFIN:   Exactly.

McHUGH J:   I mean, Griffiths v Kerkemeyer was a decision, just to put it mildly, I think, that would have shocked many common lawyers at the time who had been brought up on the Blundell v Musgrave general damages/special damages dichotomy.

MR GRIFFIN:   Yes, but, your Honour, the reason that he gets that is the reason that I gave before.  Ordinarily he would not get that because people do not get money for need in the abstract.  They only get money in respect of needs that they have to satisfy.  The reason that he gets it in the case that we are talking about, ie, where there is a gratuitous caregiver who is not going to require repayment of any kind, is that it is a collateral benefit.  It is not appropriate that the defendant should get the benefit of the fact that the wife, for example, who is not a tortfeasor in this example, is performing the services for nothing when, if he went to a commercial carer, the plaintiff would be paying $10 an hour.

McHUGH J:   But if you accept that the plaintiff gets the damages notwithstanding that the services are provided, then what can it matter that the services are provided by the defendant or by a third party?  She still is entitled to get the damages.

MR GRIFFIN:   Only because in most instances it is not the defendant that supplies the care and it is supplied by a third party and under the ordinary collateral benefits approach, that benefit ought not to sound in reduction in damages.

McHUGH J:   There may be no answer to your argument if the money was paid to the defendant, but that is not the way it goes.  It is the plaintiff who receives the money.

MR GRIFFIN:   Yes.  Could I take your Honours to page 358C to E.  I will not read it, but there Lord Bridge deals with precisely that question and, in my submission, what he says there is plainly correct.

DAWSON J:   What, that it is to recompense the carer?

MR GRIFFIN:   No, that comes a little later, your Honour.

DAWSON J:   It comes on that page.

MR GRIFFIN:   That comes at page 363, but at 358 he is dealing with the case:  is it really a case of the tortfeasor here paying twice?

DAWSON J:   No, but he says:

The justice of allowing the injured plaintiff to recover the value of the services so that he many recompense the voluntary carer has been generally recognised -

So it is not twice.  It is really for the carer.

MR GRIFFIN:   Yes, but that statement is perfectly correct under Australian law, we submit.

DAWSON J:   Is it?

MR GRIFFIN:   What this Court has declined to accept is the trust, but it must be the case, as Mr Justice Davies said in the Court of Appeal, that the primary purpose of this rule is to enable the injured plaintiff to pay the voluntary caregiver should he choose to do so.

DAWSON J:   I may be wrong, but I thought it was so that there would not be a windfall to the other side and that, if you had to choose between two, you chose in favour of the injured person getting the benefit because that was what was intended as a matter of charity by the person who provided the care.

MR GRIFFIN:   Yes, precisely, but that is not inconsistent with the other proposition, your Honour.

KIRBY J:   I think you have got to be driven back ultimately to say whatever else you can do here, a plaintiff cannot recover on the basis of the defendant’s action.  The defendant is disqualified because the defendant is the wrongdoer and that that is just the hypothesis on which the legal system has operated.

MR GRIFFIN:   Yes.

KIRBY J:   Is that how the Tasmanian court criticised Lynch v Lynch?

MR GRIFFIN:   That is right and we commend that criticism by Mr Justice Cox which your Honours will have read.

KIRBY J:   I have not read it, but I see the House of Lords rather embraced it.  It says they thought that was the answer to Lynch v Lynch.

MR GRIFFIN:   Of course it is interesting that the House of Lords thought it was following a line of Australian authority in deciding the way it did.  Unfortunately the House of Lords did not have Van Gervan v Fenton which apparently had already been decided but, of course, in our submission, that would not make any difference in any event because Van Gervan v Fenton did not deal with that issue.

McHUGH J:   But is there not another doctrinal answer to this whole question and that is that although the defendant might provide the services, the defendant does not intend to release the plaintiff from a liability to reimburse the defendant for the cost?

MR GRIFFIN:   But that begs the question of whether it is a liability.  In our submission, it is not a liability if the need is satisfied.  Our basic ‑ ‑ ‑

McHUGH J:   Let us leave aside the liability.  You accept, I take it, that if there is an express written agreement between the parties, or an express oral agreement between the parties, the plaintiff would be entitled to recover these damages?

MR GRIFFIN:   I would not necessarily accept that, your Honour, because if it is just done as a ‑ ‑ ‑

McHUGH J:   Assume he has a genuine agreement.

MR GRIFFIN:   If it is a genuine agreement and it is genuinely in substitution for what would be done commercially, that may well be so.

McHUGH J:   Why would you not ordinarily infer that the defendant does not forego his or her rights to payment.  That was the view that Justice Wright took in that Tasmanian case; the view Justice Millhouse or one of the justices in the Northern Territory ‑ ‑ ‑

MR GRIFFIN:   But that is a sort of a chicken and egg situation.  One really has to determine what his liability is first.  We would submit that his liability, where he is proposing to provide the services, is not seeing he is going to satisfy the need the liability should not extend to the cost of those services.  And, as I said before, the only reason that does not apply if the caregiver is a third party is that one does not make a deduction for the damages on that account.

KIRBY J:   As I understand it, the theory that you are advancing is that the defendant is liable anyway to do this to the plaintiff.

MR GRIFFIN:   Yes.

KIRBY J:   Therefore, the fact that he fulfils it is simply part of the fulfilment of the obligation and the law is cast to make recompense, but the problem is that we live in the reality, which perhaps we have to ignore, that the defendant gets insurance and, if he got somebody else to do it, it could be recovered.  It all seems to be a bit of a windfall to the insurer.

MR GRIFFIN:   Yes.  Your Honours, the criticism by Mr Justice Cox of Lynch’s Case appears in particular ‑ this is only reported, I think, in the Australian Torts Reports, (1993) Aust Torts Reports 62,417, starting towards the bottom of the right‑hand column, and then continuing through the next page, 62,418, and then 62,419. I might say that, in that case, there was, in fact, no deduction on account of the prospect of the future care might be provided by the tortfeasor because in that case the tortfeasor was not a relative of the plaintiff and apparently had only looked after her following the accident because he felt guilty for causing the accident. There was some evidence that is referred on the left‑hand column of 62, 419 which suggests that he might not have continued to provide any care in the future.

KIRBY J:   The point of distinction that seems to be picked up is the suggestion that whilst the New South Wales Act allowed the plaintiff to sue the statutory authority, under the Tasmanian Act they did not have that right.  Now you tell us that at the relevant time the plaintiff only had the right to sue the defendant and the defendant to seek indemnity under the insurance policy.  Is that correct?  That has been corrected or changed since, in this State, has it not?

MR GRIFFIN:   It has only changed since, yes, your Honour.  There were provisions that enabled a direct action to be brought against the insurer in the event, for example, that the defendant could not be found.

KIRBY J:   Yes.  What is the provision that makes the insurer liable now co‑equally with the plaintiff?

MR GRIFFIN:   That is the Motor Accidents Insurance Act 1994, and the Act in question ‑ the Act that was in force at the time that this matter arose was the Motor Vehicles Insurance Act 1936, and it is at page 47 of the appeal book..  Mr Justice Davies quotes the section ‑ section 3 of the Motor Vehicles Insurance Act, which provided that the insured was:

indemnified “against all sums for which he shall become legally liable by way of damages”.

At the foot of the page his Honour refers to a provision of the Motor Vehicles Insurance Regulations which he considers not to be relevant.  So, this is the old form of compulsory third party insurance and, in our submission, simply puts the compulsory insurer in precisely the same position as he would be if he were a private insurer in that regard and makes him liable to pay nothing more than the defendant would be liable to pay.

McHUGH J:   Does Queensland have a deeming provision which makes the driver the agent of the owner?

MR GRIFFIN:   Yes, your Honour.

McHUGH J:   What happens in a case where the car is driven by, say in this case, the plaintiff’s son and she sues the son alone but the services are provided by the husband?  What happens there?

MR GRIFFIN:   In our submission, where a person is vicariously liable, precisely the same considerations would apply.

McHUGH J:   Even though the person is not a party to the action?

MR GRIFFIN:   Even though he is not a party to the action.  The only reason he is there is that he is vicariously liable for the negligence of the driver.

McHUGH J:   But he may not be.  In New South Wales you can just sue the driver ‑ you used to sue the driver.

MR GRIFFIN:   You can sue either the driver or the owner in this State, but you can only sue the owner because the owner is declared to be liable for the negligence of the driver in all instances.

McHUGH J:   But if it is a true vicariously liability, then the driver should be liable for the full amount of the Griffiths v Kerkemeyer and it being a true vicarious liability, the owner should have to meet that liability.,

MR GRIFFIN:   Our submission would be that there the person providing the services is to be equated with the defendant tortfeasor, even if the party that is sued is someone that can be sued other than that defendant.

McHUGH J:   What about when you have joint and several tortfeasors where - supposing there were two cars involved in this particular accident.  How do you apportion damages?  In other words, there is another driver involved, the plaintiff would be entitled to get Griffiths v Kerkemeyer damages against that other defendant.

MR GRIFFIN:   Yes.

McHUGH J:   How do you go about apportioning damages between the two of them?

MR GRIFFIN:   The law is accustomed to dealing with situations in which there are two defendants but who are not liable for the same amounts, and those sorts of principles would apply.

KIRBY J:   What reasons did Justice Thomas give in Maan v Westbrook for refusing to follow Lynch v Lynch?

MR GRIFFIN:   Your Honour, he said this, that ‑ ‑ ‑

KIRBY J:   I am sorry if you do not have it available; I can look it up myself ‑ ‑ ‑

MR GRIFFIN:   I do have it here, your Honour ‑ we have quoted from what his Honour said in our outline, although only briefly.  What he said was this ‑ ‑ ‑

KIRBY J:   Is it reported?

MR GRIFFIN: Yes, it is (1993) 2 Qd R 267. Starting at about point 8 on 267, he said:

However in Lynch v Lynch the New South Wales Court of Appeal held in a judgment delivered by Clarke J.A. that such claims should be allowed.  This seems premised on the view that in such cases the defendant is a mere fiction, and that the compulsory insurer is the true defendant.  Having introduced the existence of such insurance as a relevant consideration, the view was expressed that a failure to allow damages in such cases discriminates against particular plaintiffs, namely those whose need for assistance is satisfied by the tortfeasor.

I do not propose to discuss this interesting question in detail here at first instance.  Whilst according great respect to any decision of the New South Wales Court of Appeal, I consider that whilst the conventional structure of an action for damages remains the vehicle through which compensation for personal injuries is awarded, it is inappropriate to disregard it in this way.  Lynch v Lynch has been strongly, and, in my respectful view, effectively criticised by Professor Fleming.....I do not think that the fundamental structure of civil proceedings and a fundamental rule in the assessment of damages ought to be compromised by considerations of the kind mentioned in Lynch.  If justification is sought in legitimate social engineering, I venture to doubt whether the allowance of such damages produces fairer consequences on the whole.  In truth Griffiths v Kerkemeyer damages are an artificial creation, and their assessment will never produce tidy logical results when subjected to multifaceted analysis.  This is one example where, if it is thought desirable to add to the entitlements of a particular class of plaintiffs, a legislative amendment may be preferable to the inversion of established legal principles.  On principle it seems to me that Gutkin and the other cases  preceding Lynch are correctly decided and that they ought to be followed.

KIRBY J:   Thank you.  This may not be the case to do it, and it may not even be raised in the proceedings, but is it not, perhaps, arguably time that so long into the established ‑ 50 years into the establishment of the motor vehicle compulsory insurance, that we do begin to look at the reality that has undoubtedly affected the law of negligence, and look at it with honesty, as every other citizen of the country would; that there is motor vehicle compulsory insurance, that is a factor that affects where the real burden lies in cases such as this?  You say, established principle says no, and we should stick to it?

MR GRIFFIN:   We say, if one wants to simply make it a situation in which one claims against a statutory corporation, then one simply provides for the action to be against the statutory corporation.

KIRBY J:   No, but I am saying , it is against the tortfeasor but we know that behind the tortfeasor, by law, stands a compulsory insurer that ‑ ‑ ‑

MR GRIFFIN:   We do, yes.

KIRBY J:   ‑ ‑ ‑ must indemnify and that, in a case such as this, where the husband is the tortfeasor, then the plaintiff will miss out on the benefit of compensation for the husband’s activities, which are loving, natural and to be expected, and that is the reality.

MR GRIFFIN:   Your Honour,  could I answer that first by saying that, in reality, the plaintiff never does miss out in the situation we are talking about, because he gets the care provided, and he obtains damages for it as well.  So, the plaintiff never does, in fact, in truth miss out.  It is only that in cases where it is the third party that supplies the services, one does not make any reduction in the award against the defendant, because ones says, “Well, a third party provided these services, why should the defendant get the benefit of that?”  But the plaintiff never does miss out.

KIRBY J:   But, might this not be a discouragement to the plaintiff’s husband providing these services if it becomes knows that you can provide it, but you don’t get any compensation for it but if the person next door ‑ ‑ ‑

MR GRIFFIN:   It might, but there are all sorts of anomalies, your Honour, whichever way your Honour approaches it there are anomalies.

DAWSON J:   What do you say to Justice Davies suggestion, that the defendant would be entitled to compensation under the insurance policy?  I do not know if that is correct or not; is it correct?

MR GRIFFIN:  I would have thought that it is not correct.  All the defendant is entitled to is an indemnity from the insurer, to the extent of his liability.

DAWSON J:   Not to cover him for the cost of providing services?

MR GRIFFIN: Not to cover him for the cost of providing services. Your Honours, on that question of insurance, might we then commend to your Honours what Professor Fleming said, whose article is at (1992) 66 ALJ 389. The relevant passages are really the last two paragraphs and, in the first of those two paragraphs he talks about the well‑grounded objection against double recovery. Those words were also used by Mr Justice Davies in the present case and, we submit, correctly used. There is a well‑grounded objection against double recovery, and the situation in which the plaintiff is unable to get the windfall that we have been speaking off, simply should be seen as a circumstance in which double recovery is allowed to occur for the reasons that I have given. But, that does not mean that there should be double recovery where the defendant is the tortfeasor.

But in the second of those two paragraphs Professor Fleming deals with the insurance question.  He says:

How can we distinguish between compulsory and voluntary liability insurance in this context?  Their effect on the parties, on double recovery and double liability, is identical.  And so are their double function of assuring compensation for the victims of negligence, besides shielding tortfeasors from financial ruin.  Moreover, it would be unworldly to assume that in non‑motor vehicle accidents the defendant is typically uninsured:  few uninsured defendants are worth suing.  Thus the reason in the instant case would, on a realistic view of the world which the judgment itself underscores, lead to its ruling becoming in practice applicable to all insured defendants.  Will this, finally, openly introduce into litigation the “I” factor that courts have in the past so diligently sought to exclude?

Might I add to that, however, this proposition, that if one does look at the Motor Accidents Insurance Act of this State, in 1994 one sees that the extent of the indemnity cover, which is provided to owners and drivers of motor vehicles, is much restricted.  It formerly applied to any accident that occurred by, through or in connection with the vehicle, provided the liability was in respect of the vehicle.  The new Act, in effect, apart from some other aspects, confines the liability to liability that results from the driving of a vehicle.  It follows from that restriction that there will be many instances in this State where people will be directly liable to plaintiffs without the benefit of any statutory insurance, namely, in all those areas that have been cut off by the narrowing of the ambit of the compulsory insurance.

So, in our submission, it should not be readily assumed that everyone who is potentially liable for something that happens with a motor vehicle, will have the benefit of compulsory insurance.

GUMMOW J:   Conceding that, Mr Griffin, what do you say to Harvey McGregor QC’s argument in Hunt v Severs in the Court of Appeal, (1993) QB about page 820 ‑ it is on the list, I think ‑ at page 820B?

MR GRIFFIN:   I am sorry, your Honour, I do not have the Court of Appeal argument.

GUMMOW J:   Page 820B, and that is not devoted to the insurance context.

MR GRIFFIN:   Yes.  That argument has been picked up in Rosecrance v Rosecrance, but it is my submission that the true approach to it is this:  it is not a case of the defendant paying in kind, or deciding to pay damages in kind.  The proper analysis is this:  the damages are awarded under this head because there is a need that has been created.  Those damages will only be awarded, however, in the event that that need is to be satisfied.  If the need is not going to be satisfied, there will be no damages.  If the defendant satisfies the need there are no damages, because there is a need that has now been satisfied.  As I said before, the only reason that that result does not apply if a third party satisfies the need is the conventional view about collateral benefits provided by third parties. 

McHUGH J:   You assert that, but I think the better view is that this is all a device to compensate - to enable the plaintiff to recompense the donor of the services.  Even Professor Fleming concedes that, and he is a critic of Lynch.

MR GRIFFIN:   Your Honour,  that makes it particularly difficult to hold against us, because the one person that should not be recompensed for his services is the defendant.  He is supplying the services.

McHUGH J:   But then what is the answer to Mr McGregor’s argument, that it is not for the defendant to say ‑ he has created a need for the services; that being so, the plaintiff is entitled to get the money so that she can then either contract to pay people, or if somebody wants to do it gratuitously; good, do not pay that person.

MR GRIFFIN:   But in so far as we are talking about the current problem, we are talking about services that are supplied by the defendant tortfeasor.  If we are looking at it at the point of trial, we know what services he has supplied.  So, that is quite evident.  We are paying them for those particular services.  In so far as we are looking at the future, so far as this type of case is concerned, we are again talking about services that will be supplied by the defendant tortfeasor because, on the judge’s findings, he puts to one side the services that will be supplied by the mother and the other relatives, he then takes into account the fact that the husband will not necessarily supply all the services and, in effect, makes a finding as to what services will, in all likelihood, be provided by the defendant tortfeasor.

McHUGH J:   He may suggest about the future.  If a defendant walks out of the marriage the next day, the plaintiff is left with no money to pay for the services.

MR GRIFFIN:   That is right, but, on the other hand, if the defendant tortfeasor performs many more services than he was expected to perform, then she is better off.

McHUGH J:   That is true.  Why should she be put at risk?

MR GRIFFIN:   Your Honours, I did propose to point out, in relation to Hunt v Severs, that following the statement that damages are compensatory at 357 and 358, His Lordship, at page 361, points out, again with respect to Donnelly v Joyce, that it cannot be said, as a general proposition, that the source from which damages are to be met is irrelevant.  He says this at page 361E to F.  He says:

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”.

McHUGH J:   But, with respect, that is an irrelevancy.  That was the sort of argument that was used to argue against the Griffiths v Kerkemeyer principle at all, but the courts carved out an exception to that national health service example, and they said in the case of gratuitous services rendered to the plaintiff, the old rule which in this Court was encapsulated in Blundell v Musgrave no longer applies.  So, you do not get anywhere by looking at that example.  That is to go back and attack the whole basis of Griffiths.

MR GRIFFIN:   Not exactly, because the other aspect of it is this question of whether the services need to be supplied.  Now, take a case of a person who ‑ a paraplegic, for example, who staunchly refuses to accept any services in circumstances in which all the medical evidence is to the effect that he should have four hours a day of care.  I mean, there have been cases in this State of paraplegics who have lived in tents out in the bush, for example, eschewing all forms of care; now, does that person obtain damages because he has a need, or has had a need for four hours a day care; surely he does not, and in the passages to which we have drawn attention in   Van Gervan v Fenton, and I will not take your Honours to it, everything seems to be premised on the proposition that the care will, indeed, be supplied.

McHUGH J:   No, it does not.  It is a need, and the way the plaintiff prefers to deal with the situation is a matter for the plaintiff.  As you said, it is a question of the voluntary choice of the plaintiff.  If she wants the services, well, she gets them; if she does not, she does not.  She can put up with the pain or inconvenience.

MR GRIFFIN:   In our submission, that situation would lead to an increase in general damages, ie, an increase in damages for pain and suffering, but it would not enable the plaintiff to receive damages in respect of the care, because, in our submission, even under the decisions, as your Honours have decided them in the Van Gervan v Fenton and Griffiths v Kerkemeyer, there is absolutely nothing to suggest that an unsatisfied need is compensible.

McHUGH J:   I think the case is against you, and this seems to be an attempt to rerun Van Gervan. 

MR GRIFFIN:   Well, your Honours, in my submission, Van Gervan states that the basis is need.  But that is for the purpose of showing that it does not matter if it is a commercial carer or a voluntary carer who satisfies the need.  But the assumption, in my submission, is that the need will be satisfied and that there would be no damages unless it was.  Now, in those circumstances, if a defendant tortfeasor satisfies the need, and the basic proposition is correct, then there is simply no basis under Griffiths v Kerkemeyer or Van Gervan v Fenton to then include an amount by way of damages for this care.  There is if it is a third party, for the reasons that I have given and which I will not go over again but it is, in my submission, not the situation if it is the defendant.

GUMMOW J:   Well, we have been taken to a lot of English authority.  Is there any authority from any other jurisdictions that we should be aware of?

MR GRIFFIN:   Your Honours, we looked at the Canadian and United States position.  We could not find any case directly in point, largely because they seem to have come much more slowly to recognise the sort of principles that have been recognised in this jurisdiction.  But, we did look at that and unfortunately could not find anything directly on the point.

GUMMOW J:   Thank you.

MR GRIFFIN:   Your Honours, our final proposition is that if the proposition for which we contend is correct, it should apply equally to both past and future care.  We submit there is no adequate rationale for any distinction between past and future care.  Of course, recognition of the proposition for which we contend will not mean that plaintiffs will not obtain an award for future care.  That will be because, in no instance will it be possible to say that over the next 40 years, for example, the defendant tortfeasor will be supplying the care.  In the present case, the trial judge took into account the prospect that the marriage might break up; that for reasons of his own health the defendant might not be able to supply the care, and so forth.  The only impact of the proposition for which we are contending is a discount in the award for future care to the extent to which the defendant tortfeasor ‑ to the extent to which it is held that that care is likely to be provided by the defendant tortfeasor.

KIRBY J:   If you succeed, is it not likely that in order to ensure the plaintiffs recover the full undiscounted compensation, that they will be advised that they should make sure that their husband does not provide the care so that peering into the future, it will assumed that they will not in the future.  That does not seem to be a very good consequence.

McHUGH J:   I do not think they will be advised not to provide the care.  I think, as the academic critics of Hunt v Severs have said, that it will be negligence on the part of the plaintiff’s solicitor unless the solicitor advises the plaintiff to enter into a written agreement with the defendant.

MR GRIFFIN:   Your Honours, our answer to that is simply this, that all sorts of anomalies occur under the present system and will occur under any other regime but the fact that there are anomalies does not mean that the principle should not be applied and it is noteworthy that, apart from Lynch v Lynch, every time this issue has been examined as a discrete issue by a court, it has concluded that damages ought not include the damages under this head and, in our submission, although in Hunt v Severs one of the features is that the House of Lords held that the damages are held in trust for the care giver and that is not acceptable, all the other bases on which Hunt v Severs hangs are equally applicable in this jurisdiction.

KIRBY J:   It rather undermines their criticism of the Australian authority though, if they do not understand the fundamental nature of the entitlement.  I think we do better to reach our own conclusions.

MR GRIFFIN:   Your Honour, the trust is really only a continuation of the finding or the holding that the central rationale of this award is to enable the voluntary carer to be paid.  That appears at page 363 of Hunt v Severs where Lord Bridge said between B and C that:

it is nevertheless important to recognise that the underlying rationale of the English law, as all the cases before Donnelly v Joyce demonstrate, is to enable the voluntary carer to receive proper recompense for his or her services and I would think it appropriate for the House to take the opportunity so far as possible to bring the law of the two countries into accord by adopting the view of Lord Denning M.R. in Cunningham v Harrison that in England the injured plaintiff who recovers damages under this head should hold them on trust for the voluntary carer.

McHUGH J:   But you do not accept that, do you?

MR GRIFFIN:   We acknowledge that this Court has held that the damages are not held on trust for the voluntary carer and we are not inviting your Honours to look at that proposition again.  We simply say that the way Lord Bridge got to that point here is, as an extension as it were, of the underlying rationale which we submit applies just as clearly in Australia as it does in England, namely that the award does put the injured plaintiff in a position in which he can, in his discretion, pay the voluntary carer.

If it were not for the fact that people will be paid, either commercially or in the voluntary situation, there would be no point in this area of the law at all.  If every injured person was going to be supplied with all these services and there was to be no question of payment, there could be no point in awarding plaintiff’s damages under this head.

McHUGH J:   No, but the courts move in to fill a gap.  A plaintiff was always entitled to get damages for care if they have a contractual arrangement with some third person, whether it be the defendant or somebody else, but of course in family situations, there never was an agreement.  Then the courts in England and in this country in Griffiths perceived an injustice and they said “Well, we will adopt, notwithstanding

accepted legal doctrine, we will carve out this exception to deal with this social problem”.  So they, in fact, invented the rule in Donnelly v Joyce and Griffiths v Kerkemeyer. 

Well, there is a strong argument that Lynch v Lynch is the logical corollary of Griffiths.  In both cases, the plaintiff still recovers the money, notwithstanding that the need has been met and it matters not that it is from a third party or from the defendant. 

MR GRIFFIN:   Yes.  Well, your Honour, I will not repeat what I have said a number of times already.  Those are our submissions, if the Court pleases.

DAWSON J:   Thank you, Mr Griffin.  Mr Williams?

MR WILLIAMS:   If the Court pleases, I hand up five copies of our submission.

DAWSON J:   Would you allow us to read it for a few moments?  Yes, Mr Williams?

MR WILLIAMS:   Thank you, your Honours.  Your Honours, much of what is there written and, indeed, intended to say has been said in the course of argument.

DAWSON J:   You would adopt the observations, would you?

MR WILLIAMS:   May we do so, your Honour?  The more we say the more trouble we are likely to get into.  Your Honours, may we take issue with our learned friend on a number of points he raised?  The first is that a plaintiff in the situation such as the present does not miss out.  Plainly, plaintiffs do miss out in these situations.  The present plaintiff will miss out to the tune of in excess of $60,000 if our learned friend’s submissions are accepted and that $60,000 would be money to which she is otherwise beneficially entitled and which she would receive as a result of the negligence of the defendant.  It is an amount which is not subject to any trust.  It is not held for any purpose for the defendant.  This plaintiff  ‑ ‑ ‑

KIRBY J:   The point that has been made is that the plaintiff actually got the service and what will happen is that she will not get the money with which she might be able to compensate the defendant but that that is all right because he is the tortfeasor.

MR WILLIAMS:   Yes.  Your Honour, our point is that the cases establish, and we refer to them in paragraph 2 of our submission, that the money is the plaintiff’s money.  She is beneficially entitled to it and it is not subject to any trust.  That being so, this plaintiff walks out of Court $60,000 shy of what another plaintiff, whose husband does not happen to be the tortfeasor, would receive, not for any reason to do with her own fault, but merely as a result of circumstance.  She is disadvantaged to the extent of $60,000 should this principle be changed.

McHUGH J:   Why should the Court not take the view that Griffiths and Donnelly distorted legal doctrine and really, we should not distort it any further by saying, in the absence of an agreement between the parties, that the defendant who has provided services which he agreed to provide voluntarily, should then be paid by some legal doctrine that it is really not applicable to?

MR WILLIAMS:   Because, with respect, in our submission, your Honour, he is not paid.  It is the plaintiff’s money.  It is hers beneficially.  It is not subject to any trust.

DAWSON J:   It is money for a purpose to pay for the satisfaction of the need.

MR WILLIAMS:   That is one of the purposes, as Mr Justice Davies pointed out, your Honour.  It is otherwise in satisfaction of her loss.

DAWSON J:   But the loss is the need.

MR WILLIAMS:   The loss is represented by the need.

DAWSON J:   It is the loss.

McHUGH J:   We rejected any notion of loss in Van Gervan because there was need.

MR WILLIAMS:   Well, your Honours, may I take you to Van Gervan because the passage on which we would rely is on page 332 where your Honours referred to Donnelly v Joyce and Griffiths v Kerkemeyer and to a number of statements by Justices Stephen and Mason, commencing about half way down the page and then proceeding to about halfway down page 333.

DAWSON J:   But you can play around with the word “need”.  I mean, a need is no longer a need when the need is met.  I know there is a contrary view to that but it does seem very odd, putting aside insurance for the moment, that a defendant is liable to pay the cost of meeting a need when he has already met it.

MR WILLIAMS:   Your Honour, yes.

DAWSON J:   And one has got to remember that not all cases in which a defendant is liable are insurance cases, motor car cases.

MR WILLIAMS:   The proposition your Honour puts, of course, does not arise in this case because past care is not under consideration, it is merely future care.  Your Honour is going to  ‑ ‑ ‑

DAWSON J:   Yes, but that is just a matter of saying what the probability are, but if you can say that the probabilities are that that husband will continue to meet the need at his own expense, then why should he be made to pay for it.  I am just putting the contrary view, it is not all one way.

MR WILLIAMS:   I understand that, your Honour.  The proposition would follow the same line of argument which this Court adopted in Van Gervan, commencing on page 335 and going on to 336, as to the basis why commercial cost was chosen, as regards cost or loss to a particular nominated defendant who, in all probability, would continue to provide the services.

KIRBY J:   The problem on lifting the veil and looking at the realities just a little bit, just a teeny bit we lift it up to look at it in this case, take the realistic view that it is the insurer, is twofold.  First, where does that stop in terms of the general theory on which our tort litigation is carried out and secondly, what is the answer to the point that in this State the law, as it then stood but has now been changed, did not really provide for you to sue, in the ordinary case, the insurer direct and that that is a point of distinction from Lynch.

MR WILLIAMS:It certainly is a point of distinction from Lynch, your Honour.  The answer, in my submission, is that it would be logical to confine a plaintiff to a certain remedy in a particular circumstance whereby a device such as that Justice McHugh mentioned in the course of argument, that problem could be overcome.

KIRBY J:   I am not quite so enthusiastic for that as Justice McHugh.  I think if the defendant is the tortfeasor and a written agreement is signed, that may not entitle the defendant tortfeasor to recover under it, even if it is not a complete sham, I think that runs headlong into the doctrine that the tortfeasor cannot recover benefits by reason of his own wrong.  So, I am not at all convinced that the signing of an agreement ought allow the tortfeasor to recover.

MR WILLIAMS:   Yes and, your Honour, the basis upon which we say that the identity of the care giver is irrelevant is the same basis on which the Court acted in Van Gervan v Fenton to arrive at a commercial cost.

KIRBY J:   But Van Gervan was not looking at this particular problem.

MR WILLIAMS:   It was not directly at this problem, your Honour, but it was looking at the closely related problem of care having been provided and likely to be provided by a nominated person which could be provided at a lesser cost than commercial cost.

KIRBY J:   Yes, but what is said to be the fatal flaw here is that the nominated person is the very wrongdoer who is being sued by the plaintiff.

MR WILLIAMS:   Yes, quite, your Honour, and we say, for the same reasons that one adopts commercial costs in line with Van Gervan v Fenton, one ignores the identity of the care giver in this situation.

KIRBY J:   Does that not challenge a fundamental premise on which tort litigation takes place, namely that you are suing the tortfeasor and not those who stand behind him or her?

MR WILLIAMS:   Your Honour, it does, if one goes to what Justice McHugh referred to as, I think, the dark ages of 1935, if the matter was being determined on strict legal theory.

KIRBY J:   But the doctrine has not changed since then.  We have kept on with this artificial practice of ignoring the reality of insurance.  True it is, “what is negligence” has undoubtedly been affected by the fact that we all know behind the defendant is the insurer but the theory is that we just ignore that.  Why should we lift it just a little bit to peep under the curtain in this case?

MR WILLIAMS:   Your Honour, one can only say that the arguments we advance, as by way of policy consideration and in terms of the way in which the Griffiths v Kerkemeyer principle has evolved, leads your Honours to that conclusion. 

DAWSON J:   But you are not going to arrive at an entirely logically satisfying result whichever way you go, are you?

MR WILLIAMS:   You are not, your Honour and one is not going to be able to explain to the man in the street why one plaintiff leaves court $60,000 lighter than another plaintiff and not through any fault of that person’s ‑ ‑ ‑

DAWSON J:   Because of the kindness of one of his relatives, yes.

MR WILLIAMS:   Because the defendant happens to be a relative, your Honour.

KIRBY J:   We would just say it is because he is the tortfeasor, and hope that they understand.

MR WILLIAMS:   Having defined the term for them, your Honour, no doubt they would but that rather distances the law from, perhaps, notions of fairness, your Honour.  Your Honours, the question of a trust as in Hunt v Severs appears to have been accepted by our learned friend.  It is important to note, we submit, that in Hunt v Severs ‑ ‑ ‑

DAWSON J:   I did not understand him to accept it, did he?

MR WILLIAMS:   I am sorry, he accepted that that is not part of the law, your Honour.

DAWSON J:   Yes.

MR WILLIAMS:   It is important to note that what Lord Bridge, in fact, determined there was not only the existence of a trust but he enunciated the requirement to pay in the following paragraph.  It was a true trust.  It is not a legal device to get around a certain problem. 

Your Honours, the reasons which this Court enunciated in Van Gervan v Fenton for determining that voluntary care should be assessed by reference to market cost, in our submission, are compelling reasons for reaching the conclusion that the identity of the tortfeasor is irrelevant.  The matter of compensation is not to be determined, in our submission, by that matter of identity.  It is to be determined by reference to the plaintiff’s need.  The plaintiff’s need, established by Griffiths v Kerkemeyer is  ‑ ‑ ‑

KIRBY J:   Is not the point that is made that that need identifies the quantification but that entitlement depends upon a neutral position and if you are the tortfeasor you are out of the game because you are disqualified.

MR WILLIAMS:   Yes.

KIRBY J:   I mean, that need, I do not think, answers the whole thing because it is not contested there is the need.  What is contested here is that the need is being fulfilled by the very person who did the wrong; that that person cannot, under our legal doctrine, recover the damage or recover the benefit of the damage.  The plaintiff recovers the damage but recover in respect of that action by that defendant.

MR WILLIAMS:   Yes, I am not sure certain whether our learned friend’s position went to that extent, your Honour, or to the point that is really Hunt v Severs and that is that the policy behind Griffiths v Kerkemeyer was to provide a fund to compensate the tortfeasor in circumstances such as this and such compensation should not be paid.  In our submission, that is taking the argument one step too far.  From the plaintiff’s point of view, the plaintiff comes to court and says, “I have suffered injury.  I have suffered a loss represented by my need and I wish to have compensation for it” and so far as the future is concerned, that compensation should be the same for all plaintiffs for the reasons stated in Van Gervan v Fenton in arriving at the commercial cost.

KIRBY J:   Well, it is fair to say, as Mr Griffin has said, is it not, that although there is no binding authority, the balance of authority tends to favour the appellant?

MR WILLIAMS:   In respect of those cases to which he referred, your Honour, Hunt v Severs, we would submit, your Honours, were distinguished because of the quite different principle on which it is decided.  Gowling v Mercantile Mutual Insurance related only to past care.  Motor Accidents Insurance Board v Pulford, the decision on which our learned friend relies, related to past care but, of course, Justice Cox there expressed an opinion consistent with the Court of Appeal in this State in relation to future care, so the decision on the relevant point by Justice Cox was favourable.  Gutkin v Gutkin and Maan v Westbrook were both concerned with past care.

There is only one decision and that is Snape v Reid which, in our submission, has any relevance in respect of future care.  As against that, Rosecrance and, of course, the decision in this case in the Court of Appeal, so far as future care are concerned are the way in which we would argue the point.  So, in our submission, so far as future care is concerned, the balance favours us, your Honour.  That is the way we would put it.

KIRBY J:   But why should it be different between past and future?

MR WILLIAMS:   Your Honour, there is, of course, an argument available to a defendant to say I have discharged my obligation so far as the past is concerned.  So far as the future is concerned, a defendant ‑ ‑ ‑

KIRBY J:   Lord knows.

MR WILLIAMS:   Lord knows, yes, that is the answer and that is why the court adopted commercial cost rather than what a particular defendant might be prepared to do it for.

KIRBY J:   So that the need of the plaintiff would be met without the peril that the plaintiff will lose out.

MR WILLIAMS:   That is so and that is the argument your Honour raised in relation to the argument, I think, of Mr Crowley in Hunt v Severs before the Court of Appeal and it is, in our submission, a valid point that a defendant should not have the right to elect to decide to pay damages in kind.  Your Honours, the matter ultimately comes down to a question as to whether or not the services provided by the defendant are for the benefit of the plaintiff or for the benefit of the wrongdoer and his insurer.  The analysis follows what was said by this Court in Nguyen v Nguyen at pages 261 and 262.

DAWSON J:   What is the citation, Mr Williams?

MR WILLIAMS: I am sorry, your Honour, 169 CLR 261 to 262. Of course, the Court was there concerned with voluntary care not provided by a tortfeasor, but in interpreting Donnelly v Joyce and Griffiths v Kerkemeyer, your Honours Justices Toohey, Dawson and McHugh looked to whether, we would submit as a matter of policy, the services provided by the voluntary care giver should go to the benefit of the plaintiff or the benefit of the wrongdoer and the determination was there they go to the benefit of the plaintiff.  We submit that the same principle should be followed in the present case.

DAWSON J:   Where on that page is that, I am sorry?

MR WILLIAMS:   I am sorry, at the top of page 262 of 169 CLR, your Honour.  In our submission, one cannot divorce a case such as this from the reality that insurance is involved and, indeed, that insurance would be involved in almost every case in which a close family member chooses to sue another close family member who has allegedly caused an injury.  The circumstances, in our submission, whereby an uninsured defendant would be in this position are unlikely to occur with any frequently at all and that the fact of compulsory and other insurance being a fact of life should not be ignored in circumstances such as this.  We would submit that your Honours would, in considering matters of policy, take account of those matters to which we referred.

KIRBY J:   Where do we draw the line then?  What if there is just a tiny little bit of negligence in a motor car case and we say, “Well, behind this stands an insurer.  We all know that and therefore we can stretch the principles”?

MR WILLIAMS:   Well, it is not so much a matter of that, your Honour; it is a matter of looking at the reality of the situation and in so far as the court would ‑ ‑ ‑

DAWSON J:   The reality of the situation is that the compulsory insurance is engrafted upon a system of personal liability.  That is the reality.

MR WILLIAMS:   And to the extent compulsory insurance does not take one there, private insurance usually does.

DAWSON J:   And if it does not, then the person is liable.

MR WILLIAMS:   Then the person is liable.

DAWSON J:   That is the basic principle.

MR WILLIAMS:   That is so, your Honour, yes.

DAWSON J:   Well, that is the reality.

MR WILLIAMS:   And, your Honour, in circumstances such as this, the case of an uninsured person, completely uninsured, is going to be a remote occurrence.  That should not influence your Honours against a principle whereby all plaintiffs are treated equally in respect of their losses.  Looking at the matter from the plaintiff’s perspective rather than from the defendant’s perspective, there is no reason why this plaintiff should leave court $60,000 less than another plaintiff whose injuries just happen to be caused by someone other than her husband.

Your Honours, we cannot add anything to those matters raised by way of policy considerations in our written submissions.  Unless there is anything further, those are our submissions.

DAWSON J:   Thank you, Mr Williams.  Mr Griffin.

MR GRIFFIN:   I simply wanted to take issue with what my friend said about the Pulford Case.  It is my submission that the judgment of Mr Justice Cox plainly recognises that this principle is equally applicable in relation to future care as it is in relation to past care.  An examination of the passages to which I referred in argument earlier shows that no award was made in relation to future care in that instance, or no account was taken of the fact that it was the defendant tortfeasor that might provide the care in that instance because on the facts it did appear that the defendant tortfeasor might not continue to provide any care.  That is the only comment I wish to make by way of reply, if the Court pleases.

DAWSON J:   Thank you, Mr Griffin.  The Court will consider this matter.

AT 4.05 PM THE MATTER WAS ADJOURNED