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Kerley, Heather --- "The Tortfeasor's Gratuitous Care" [2017] WAStuLawRw 9; (2017) 1 Western Australian Student Law Review 143


THE TORTFEASOR’S GRATUITOUS CARE

Heather Kerley[*]

Damages in Tort Law—Gratuitous Care—Gratuitous Services—Tortfeasor—Griffiths v Kerkeymeyer Damages—Kars v Kars—Hunt v Severs

In tortious actions, it is common practice to award damages for gratuitous care and services. This situation is complicated when the tortfeasor is the carer. Gratuitous damages are often referred to as Griffiths v Kerkemeyer damages, and such damages often form a substantial component of the overall damages. The House of Lords in Hunt v Severs ruled that such damages belong to the carer and that the plaintiff is under a legal obligation to provide such damages to the carer. In Kars v Kars, the High Court of Australia disagreed with this approach, stating that the damages belong to the plaintiff. In Australia, it now appears clear that the tortfeasor being the carer will not bar a damages award for gratuitous care. Even so, it is useful to consider the advantages and disadvantages of the different approaches taken by the House of Lords and the High Court. This article argues that the preferred approach to awards of gratuitous damages where there is a concurrent tortfeasor and carer is that endorsed in Kars v Kars. This approach ensures consistency, fairness and a degree of predictability when plaintiffs pursue their negligence actions. Further, classifying gratuitous damages as belonging to the plaintiff is consistent with established compensatory principles connected to negligence actions, namely that damages belong to the plaintiff and are designed to place the plaintiff in the position they would have occupied had the tort not occurred.

I INTRODUCTION

When the negligence of the defendant causes the plaintiff to suffer injury, the plaintiff may receive gratuitous services from a relative, partner or other person. These may include nursing and domestic services, the value of which are calculated with reference to the market cost of such services.[1] These are recoverable at both common law[2] and under statute,[3] and routinely appear in most personal injury claims.[4] However, damages for gratuitous services will not be awarded when the services would have been provided regardless of the defendant’s negligence.[5] For example, such circumstances might arise where, prior to the defendant’s negligence and the plaintiff’s injury, the defendant was responsible for all of the home maintenance, cleaning and cooking. In that case, the plaintiff’s subsequent inability to do these tasks and reliance on the defendant is not claimable because those gratuitous services would have been provided regardless of the defendant’s negligence.

The Civil Liability Act 2002 (WA) (‘Civil Liability Act’) imposes statutory thresholds that must be satisfied before damages for gratuitous services can be awarded.[6] It states that if the amount that would be awarded is less than the monetary threshold prescribed, then no damages for gratuitous services are to be awarded.[7] This monetary threshold is subject to amendment each year. However, as of 1 July 2016, the monetary threshold is $7000.[8] Therefore, if the monetary value of the gratuitous services provided to a plaintiff does not exceed $7000, no damages award is to be made. There are also maximums placed on the amount of damages that can be awarded for gratuitous services, which is regulated by the Civil Liability Act and subject to change.[9]

Gratuitous damages are usually modest,[10] but can be significant in catastrophic injury cases, given the prolonged period between injury and judgment and the nature of the injury itself, which may demand significant assistance compared to other relatively minor injuries.[11] Interestingly, research demonstrates that damages for catastrophically injured people rarely prove to be sufficient.[12]The widespread acceptance of the award of damages for gratuitous services originated from Griffiths v Kerkemeyer (‘Griffiths v Kerkemeyer’),[13] where the High Court allowed a permanently disabled plaintiff to recover damages for past and future services gratuitously provided to him by relatives. These damages are now known as Griffiths v Kerkemeyer damages.[14]

The decision in Griffiths v Kerkemeyer aligned with the English precedent of Donnelly v Joyce (‘Donnelly v Joyce’),[15] where it was held that the relevant loss is the existence of the plaintiff’s need for care.[16] Conversely, Griffiths v Kerkemeyer represented a significant departure from the decision in Blundell v Musgrave.[17] Blundell v Musgrave held that damages for personal injury were only recoverable where there was a pre-existing legal obligation to pay for them.

This article examines whether the preferred approached towards gratuitous services, in particular gratuitous services provided by the tortfeasor, is that endorsed by the High Court in Kars v Kars (‘Kars’),[18] or by the House of Lords in Hunt v Severs (‘Hunt’).[19] It analyses whether damages for gratuitous services belong to the plaintiff or the carer, and in doing so, considers the dilemma of how an award of damages should be made where the tortfeasor is also the carer. It is argued that the preferred approach when assessing the award of damages for gratuitous services is to categorise them as belonging to the plaintiff, as determined in Kars. As a result, the dual identity of the tortfeasor carer should not bar a plaintiff’s claim for gratuitous damages. This approach is favourable because it maintains consistency in the award of damages for personal injury claims. It also reaffirms that an award of damages is to the plaintiff, and ensures equality in all personal injury claims.[20]

Against this background, this article will firstly address the contentious nature of gratuitous services and the differing opinions of the House of Lords in Hunt and the High Court in Kars. In analysing the conflicting judicial opinions, the article then considers the advantages and disadvantages of both approaches before concluding that the preferred approach is that endorsed in Kars.

II THE CONTENTIOUS ASPECT OF GRATUITOUS SERVICES

The award of damages for gratuitous services is a widely accepted legal principle. Despite this, the principles around gratuitous care remain subject to debate. Questions of reform in order to limit the scope of such damages continue to be proposed by bodies such as the Western Australian Law Reform Commission.[21] Further debate also persists, especially among common law countries, as to their recoverability when the tortfeasor is the carer.[22] The issue is essentially whether a damages award should be made when the care is being provided by the person whose negligence caused the need for such services.

This issue has been subject to conflicting authority and opinion in England and Australia.[23] The English case of Hunt and the Australian case of Kars both consider whether the damages belong to the plaintiff or are held on trust for the carer, and therefore whether they are recoverable when the tortfeasor is the carer.[24] Currently, the Australian position is that such damages are the plaintiff’s and remain recoverable despite the tortfeasor being the carer. This presents both advantages and limitations.[25] However, the English approach in Hunt contradicts that of Australia, as discussed below.

III JUDICIAL APPROACHES

A The English approach: Hunt v Severs

Hunt involved a plaintiff who was rendered a paraplegic as a result of a road accident caused by the negligence of the defendant.[26] The parties were partners at the time of the accident and were subsequently married. The defendant cared for the plaintiff and the key issue was whether an award for gratuitous care should be made given that the carer was the tortfeasor and defendant.[27]

The House of Lords held that, in England, the rationale behind the award of damages for gratuitous services is to reimburse the carer.[28] This decision departed from the principle in Donnelly v Joyce,[29] which held that the loss being compensated in such cases is the plaintiff’s.[30] The House of Lords stated that the damages were to be held on trust for the carer, and therefore it would be inconsistent with the purpose of the damages to make such an award when the tortfeasor is the carer.[31] The effect of the judgment is that no damages are to be awarded for gratuitous services where a tortfeasor and carer are the same person.[32] However, the plaintiff would be entitled to damages when the carer does not occupy this dual identity.[33] This demonstrates that the identity of the carer is a crucial consideration.[34]

1 Advantages of the English approach

The decision in Hunt is beneficial, as it articulates the principle that the damages are held on trust for the carer. It reflects that the objective of the damages is to compensate the carer.[35] However, the carer has no cause of action against the tortfeasor,[36] and the plaintiff is not obliged to reimburse the carer.[37] Accordingly, the creation of a trust allows for the carer to participate in the management of the trust and ensure that the funds are used for their intended purpose: recompense.[38]

However, this is only an advantage with respect to a non-tortfeasor carer. Hunt makes it clear that no trust would arise when there is a simultaneous tortfeasor and carer. This is because it would be illogical to order the tortfeasor to pay a sum which would then be held on trust and returned to him or herself at a later date.[39] The judgment addresses this by stating that, in such a case, an award should simply be reduced by the amount attributable to gratuitous services.[40]

The Hunt approach is also advantageous in that it prevents the plaintiff from obtaining double the appropriate amount of damages. This would arise where the plaintiff receives the benefit of the care from the person, as well as the damages from the person as a tortfeasor.[41]

2 Disadvantages of the English approach

Despite these noted advantages, the judgment has been highly criticised, which indicates that it is not well-accepted.[42] The arbitrary restriction on damages for gratuitous services jeopardises a plaintiff’s right to fair compensation,[43] and also acts as a ‘disincentive for families to provide care’.[44] This is undesirable, as it encourages plaintiffs to seek alternative assistance which may, in the circumstances, be less convenient or appropriate. A primary example would be where the plaintiff sporadically requires assistance during the night or requires assistance with intimate tasks.[45]

Before the matter reached the House of Lords, the Court of Appeal stated that damages for gratuitous services would have been recoverable if the parties had created a contract.[46] The House of Lords remained silent on this issue. Consequently, the position remains that tortfeasor carers and plaintiffs are required to enter into contractual obligations in order to receive damages for gratuitous services,[47] through the category of special damages.[48] This is less than ideal, given that the legally binding obligations would likely not be enforced without a damages award.[49] It is also undesirable because the existence of a contract essentially results in the same outcome, being the award of damages.

B The Australian approach: Kars v Kars

In Kars, the plaintiff was married to the defendant. The negligence of the defendant caused a motor vehicle accident where the plaintiff suffered a permanent back injury, and subsequently required a great deal of care, some of which was provided gratuitously by the defendant.[50] Once again, the issue was whether damages could be awarded when the tortfeasor was the carer. The High Court adopted the approach in Lynch v Lynch,[51] determining that it would be unjust to prevent a plaintiff from recovering damages in such a situation.[52] The Court acknowledged the anomaly of having a concurrent tortfeasor carer, but also emphasised that the plaintiff’s needs or loss is the paramount consideration.[53] The Court maintained the view expressed in Griffiths v Kerkemeyer, and rejected the notion of a trust whereby the carer is the beneficiary.[54] Accordingly, the Court stated that damages should not be reduced on the basis that the tortfeasor is the carer.[55]

1 Advantages of the Kars approach

The advantage of the approach in Kars is that it creates consistency in the analysis of damages for personal injury claims. Simply, the plaintiff is entitled to recover damages for gratuitous services regardless of who the carer is. This aligns with the foundational purpose of tortious compensation: to place the plaintiff in the position they would have been in but for the occurrence of the tort.[56] It also emphases the plaintiff’s needs, which, arguably, is the established focus of such compensatory regimes.[57] By confirming that the loss is the plaintiff’s, the approach recognises a key fact: no matter who the tortfeasor or carer is, the plaintiff will still require the same assistance.[58] Further, Kars promotes care by persons with whom the plaintiff has a close relationship. This is beneficial as the provision of services is more flexible and tailored to the person’s individual needs.

This approach also seeks to prevent a windfall to compulsory statutory insurers whereby insurers can potentially take advantage of the benevolence of the defendant tortfeasor/carer.[59] This windfall arises where the tortfeasor provides services gratuitously, and the insurer argues they no longer have an obligation to provide damages for gratuitous care.[60]

Lastly, the vicissitudes of life still apply to the assessment of damages to ensure fairness. For example, in Western Australia, a damages award for future losses has a 6 per cent discount factor applied to it.[61] This 6 per cent discount factor reflects the vicissitudes of life such as normal sickness, absences from employment and the like which would naturally reduce the plaintiff’s position/income. Therefore, this approach ensures that the plaintiff’s damages are not unjustifiably reduced twice.

2 Disadvantages of the Kars approach

While the above approach seeks to avoid a windfall to insurers, it may also force insurers to reconsider their premiums, which could potentially result in increases.[62] It is also disadvantageous in that it creates a perception that the wrongdoer is being compensated, despite the award technically being provided to the plaintiff. This is particularly so if the defendant has the opportunity to enjoy the benefit of the gratuitous award, which is likely in a marital relationship where assets are often shared. If this is not the case, for example, because the parties’ relationship dissolves, a further disadvantage arises: the plaintiff may not actually use the damages to pay for care or assistance. Therefore, there may be instances where the damages awarded to ensure that the plaintiff receives necessary care is misused by the plaintiff or a third party, and therefore the plaintiff will not actually receive the care they need and the damages are not being utilised for their intended purpose.

Lastly, although Kars was a unanimous decision, the reasoning of each judge differed. The absence of judicial uniformity indicates that this remains a contentious and somewhat unsettled issue. The judgment seeks to provide a solution to an insoluble problem,[63] and is simply selecting the ‘least unsatisfactory’ option.[64] Considering the disadvantages of the approach, one could question whether it is actually any more beneficial than Hunt.[65]

IV THE PREFERRED APPROACH

As demonstrated above, each case presents advantages and disadvantages. This article argues that the approach taken in Kars is the preferred approach. Kars is consistent with prior decisions, such as Hodges v Frost,[66] and recognises that tort law seeks to promote the provision of gratuitous services by relatives.[67] It therefore follows that Kars should prevail. The Hunt rule increases the likelihood that plaintiffs will employ expensive and less readily available services. This may cause delays in the provision of care, which may, in turn, exacerbate any injury and subsequently increase a defendant’s liability. This is unfavourable.[68]

Griffiths v Kerkemeyer confirmed that it would be unjust to only allow damages to be awarded when a contract existed,[69] negating the subsequent approach in Hunt. The High Court stated that the general rule is that gratuitous services do not reduce a plaintiff’s overall damages.[70] This is an unequivocal principle that does not articulate a need to consider the identity of the carer.[71] The High Court has expressly stated that the principles laid down by Griffiths v Kerkemeyer and Donnelly v Joyce are too firmly entrenched in Australian law to be departed from without statutory intervention.[72] Opposing arguments by a foreign judiciary are insufficient, as evident by the Court’s rejection of Hunt. The subsequent confirmation of this by Western Australian courts reiterates that it is still the preferred position. [73]

Although both are common law countries, there are vast societal and legislative differences between Australia and England which would make following Hunt inappropriate in Australia. Further, as stated in Kars, the High Court has repeatedly embraced the principles of Donnelly v Joyce, not Hunt, in cases such as Nguyen v Nguyen[74] and Van Gervan v Fenton.[75] Departure from this precedent in order to deny that the loss is the plaintiff’s would require strong reasoning, which is not found in Hunt.[76] As such, the Kars approach seeks to maintain consistency and stability among Australian precedent, which is to be encouraged and preferred.[77]

A fundamental flaw in the Hunt approach, as compared to Kars, is that it fails to consider the possibility of the tortfeasor not remaining as the future carer.[78] As the care is, by nature, gratuitous, the consistent provision of future care by the tortfeasor remains uncertain. Thus, the plaintiff may need to obtain care elsewhere and will not have the funds to do so under the Hunt approach. It also does not adequately resolve evidential issues of how an award of damages for gratuitous services would be made where there are multiple carers.[79] Accordingly, there is a clear problem with the trust principle proposed by Hunt.[80]

The High Court has stated that the rationale for damages for gratuitous services is not to reimburse the carer, but to meet the plaintiff’s needs.[81] This has been reiterated by Western Australian courts since Kars.[82] Negligence is not actionable per se; as such, the focus of a negligence action has always been on plaintiff’s loss and needs, this being the reason that the burden of proof to show damage falls on the plaintiff.[83] Therefore, it is irrational to categorise one aspect of a personal injury claim as loss to a third party (the carer). Accordingly, Kars should be given preference, as it demonstrates that when the plaintiff’s needs are in the forefront of the debate, the identity of the carer becomes irrelevant.[84]

Kars is also preferred as it brings the debate back to the foundations of Australian tort law: that such actions seek to place the plaintiff in the position they would have been in but for the tort. They do not seek to prevent a simultaneous benefit to the tortfeasor;[85] such considerations are irrelevant.[86]

Lastly, Hunt discriminates against plaintiffs whose carers ‘happen to be the tortfeasor’.[87] It punishes not the tortfeasor carer, but the plaintiff. Notwithstanding the carer’s identity, the plaintiff’s needs remain the same, which highlights that it is the recognition of the need, not the manner in which it is satisfied, that is relevant. [88] This is provided for by the Kars approach.[89]

V CONCLUSION

Hunt and Kars provide opposing approaches to whether gratuitous services are recoverable when the tortfeasor is the carer. There are advantages and disadvantages associated with both approaches. Ultimately, the approach in Kars should be preferred. That approach rejects the notion that the damages will be held on trust, and recognises that the fundamental consideration in an award of damages is the need of the plaintiff. It also correctly identifies that the identity of the carer is irrelevant and states that plaintiffs should not be disadvantaged by the provision of care by a tortfeasor and in fact encourages such benevolence. The Kars approach has been correctly applied in subsequent cases and should continue to be preferred in the interests of maintaining judicial consistency and fairness to plaintiffs.


[*] Heather is a fifth year Bachelor of Laws (Honours) student at the University of Notre Dame.

[1] Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, 333–4 (Mason CJ, Toohey and McHugh JJ).

[2] See, eg, Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161.

[3] Civil Liability Act 2002 (WA) s 12.

[4] Danuta Mendelson, ‘Jurisprudential Legerdemain: Damages for Gratuitous Services and Attendant Care’ (2005) 12 Journal of Law and Medicine 402, 402; David Harper, ‘High Court Reaffirms Griffiths v Kerkemeyer Principle’ (2000) 41 Plaintiff 48, 48.

[5] Civil Liability Act 2002 (WA) s 12(2); Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, 340–4 (Mason CJ, Toohey and McHugh JJ).

[6] Ibid ss 1213.

[7] Ibid s 12.

[8] Ibid s 13; M Mischin MLC, ‘Civil Liability Act 2002 (WA) Specified Amounts’ in Western Australia, Western Australian Government Gazette, No 90, 3 June 2016, 1732.

[9] Civil Liability Act 2002 (WA) s 12.

[10] Harper, above n 4.

[11] Harper, above n 4; Mendelson, above n 4.

[12] Prue Vines, ‘Injury and Caring in the Family – Voluntary Services by the Tortfeasor’ (1997) 5 Tort Law Review 93, 97.

[13] [1977] HCA 45; (1977) 139 CLR 161.

[14] Simone E Degeling, ‘Kars v Kars –Balancing the Interests of Victims and Carers’ (1997) 71 The Australian Law Journal 882, 883; Mendelson, above n 4.

[15] Donnelly v Joyce [1973] EWCA Civ 2; [1973] 3 All ER 475.

[16] Ibid; David Kemp, ‘Voluntary Services Provided by Tortfeasor to his Victim’ (1994) 110 Law Quarterly Review 524, 524; David C Price, ‘Recent Cases’ (1994) 68 The Australian Law Journal 690, 691.

[17] [1956] HCA 66; (1956) 96 CLR 73.

[18] [1996] HCA 37; (1996) 187 CLR 354.

[19] [1994] UKHL 4; [1994] 2 All ER 385.

[20] Law Reform Commission of Western Australia, Provisional Damages and Damages for Gratuitous Services, Project 106 Discussion Paper (2015) 29.

[21] Law Reform Commission of Western Australia, above n 20.

[22] Mendelson, above n 4, 405–7.

[23] Kars v Kars [1996] HCA 37; (1996) 187 CLR 354, 365 (Toohey, McHugh, Gummow and Kirby JJ).

[24] Harold Luntz, ‘Damages for Voluntary Services Provided by a Tortfeasor’ (1997) 113 Law Quarterly Review 201, 201.

[25] Kars v Kars [1996] HCA 37; (1996) 187 CLR 354.

[26] Hunt v Severs [1994] UKHL 4; [1994] 2 All ER 385.

[27] Ibid 387.

[28] Hunt v Severs [1994] UKHL 4; [1994] 2 All ER 385, 394 (Lord Bridge); John Cartwright, ‘Damages, Third Parties and Common Sense’ (1996) 10 Journal of Contract Law 244, 258.

[29] Donnelly v Joyce [1973] EWCA Civ 2; [1973] 3 All ER 475.

[30] Luntz, above n 24.

[31] Ibid 202; Cartwright, above n 28.

[32] Hunt v Severs [1994] UKHL 4; [1994] 2 All ER 385, 394 (Lord Bridge); Degeling, ‘Kars v Kars’, above n 14, 886.

[33] Ibid 387; Simone Degeling, ‘A New Reason for Restitution: The Policy Against Accumulation’ (2002) 22 Oxford Journal of Legal Studies 435, 440.

[34] Hunt v Severs [1994] UKHL 4; [1994] 2 All ER 385, 393 (Lord Bridge).

[35] Simone, Degeling, ‘Tort and Unjust Enrichment Intersect Again’ (2006) 17 King’s Law Journal 117, 124; Alan Reed, ‘A Commentary on Hunt v Severs’ (1995) 15 Oxford Journal of Legal Studies 133, 135.

[36] Hunt v Severs [1994] UKHL 4; [1994] 2 All ER 385, 390 (Lord Bridge).

[37] Luntz, above n 24, 203; Reed, above n 35, 136.

[38] Degeling, ‘A New Reason for Restitution: The Policy Against Accumulation’, above n 33, 437.

[39] Reed, above n 35, 136; Kemp, above n 16, 524–5.

[40] Degeling, ‘A New Reason for Restitution: The Policy Against Accumulation’, above n 33, 441.

[41] Degeling, ‘Kars v Kars’, above n 14, 884–5; Degeling, ‘A New Reason for Restitution: The Policy Against Accumulation’, above n 33, 441, 444.

[42] Luntz, above n 24, 202.

[43] Law Council of Australia, ‘Gratuitous Care’ (Brief, Law Council of Australia, June 2004) 2; Reed, above n 35, 137.

[44] Law Council of Australia, above n 43.

[45] Hunt v Severs [1993] QB 815, 824–5 (Lord Bridge).

[46] Reed, above n 35, 137.

[47] Ibid.

[48] Kemp, above n 16, 525.

[49] Luntz, above n 24, 201, 204; Reed, above n 35, 137.

[50] Degeling, ‘Kars v Kars’, above n 14, 883.

[51] Lynch v Lynch (1991) 25 NSWLR 411.

[52] Ibid; Kars v Kars [1996] HCA 37; (1996) 187 CLR 354, 380 (Toohey, McHugh, Gummow and Kirby JJ).

[53] Kars v Kars [1996] HCA 37; (1996) 187 CLR 354, 382 (Toohey, McHugh, Gummow and Kirby JJ).

[54] Ibid 360 (Dawson J); Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161, 177 (Stephen J).

[55] Degeling, ‘Kars v Kars’, above n 14, 884.

[56] Mendelson, above n 4, 403; Livingstone v Raywards Coal Co (1880) 5 App Cas 25, 39.

[57] Kars v Kars [1996] HCA 37; (1996) 187 CLR 354, 372, 382 (Toohey, McHugh, Gummow and Kirby JJ); Mendelson, above n 4, 406–7.

[58] Luntz, above n 24, 202; Mendelson, above n 4, 405.

[59] Kars v Kars [1996] HCA 37; (1996) 187 CLR 354, 382 (Toohey, McHugh, Gummow and Kirby JJ).

[60] Degeling, ‘Kars v Kars’, above n 14, 884.

[61] Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 5.

[62] Degeling, ‘Kars v Kars’, above n 14, 884.

[63] Vines, above n 12.

[64] Kars v Kars [1996] HCA 37; (1996) 187 CLR 354, 382 (Toohey, McHugh, Gummow and Kirby JJ).

[65] Vines, above n 12.

[66] Hodges v Frost [1984] FCA 98; (1984) 53 ALR 373, 379–80; Luntz, above n 24.

[67] Degeling, ‘Tort and Unjust Enrichment Intersect Again’, above n 35.

[68] Luntz, above n 24.

[69] Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161, 168 (Gibbs J).

[70] Ibid 169 (Gibbs J).

[71] Ibid 169.

[72] Harper, above n 4.

[73] See, eg, Jones v Moylan (No 2) [2000] WASCA 361; (2000) 23 WAR 65, 70 (Kennedy J).

[74] (1990) 169 CLR 245.

[75] [1992] HCA 54; (1992) 175 CLR 327; Kars v Kars [1996] HCA 37; (1996) 187 CLR 354, 370 (Toohey, McHugh, Gummow and Kirby JJ).

[76] Kars v Kars [1996] HCA 37; (1996) 187 CLR 354, 370 (Toohey, McHugh, Gummow and Kirby JJ).

[77] Ibid 371.

[78] Price, above n 16, 692.

[79] Reed, above n 35, 138.

[80] Ibid.

[81] Kars v Kars [1996] HCA 37; (1996) 187 CLR 354, 360 (Dawson J).

[82] Jones v Moylan (No 2) [2000] WASCA 361; (2000) 23 WAR 65, 82 (McKechnie J).

[83] Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52, 115 (Crennan J); The Commonwealth of Australia v Cornwell [2007] HCA 16; (2007) 229 CLR 519, 523 (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ).

[84] Vines, above n 12, 95.

[85] Luntz, above n 24, 203.

[86] Reed, above n 35, 136.

[87] Lynch v Lynch (1991) 25 NSWLR 411, 419–20 (Clarke JA).

[88] Ibid.

[89] Lynch v Lynch (1991) 25 NSWLR 411, 419–20 (Clarke JA).


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