Kars v Kars [1996] HCA 37

High Court of Australia Dawson, Toohey, McHugh, Gummow and Kirby JJ Kars v Kars [1996] HCA 37

ORDER Appeal dismissed with costs

Cur adv vult

The following written judgments were delivered:—

10 December 1996 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.

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] .