There is a man in Queensland who pushes his wife’s wheelchair. He married her early in 1991, and later that same year he drove the car that put her in it.¹Kars v Kars [1996] HCA 37; (1996) 187 CLR 354. The accident was his fault — he does not pretend otherwise — and her back was the principal casualty, leaving her to be lifted, fetched for, and turned. Much of that lifting and fetching he now does himself, out of the wreckage of what he caused and the affection that somehow survived it. The question the High Court of Australia had to answer was not whether he was sorry. It was whether his wife could recover, as damages, the value of the very care he gives her for nothing.

Put that baldly, it sounds like a trick: charge a man money for the privilege of nursing the woman he crippled. The instinct recoils. But the recoil is the first thing the law must learn to distrust, because the instinct is reasoning from the wrong loss. Her loss is not the bill for a nurse. Her loss is the need — the body that no longer turns itself.²Donnelly v Joyce [1974] QB 454, 462: “The plaintiff’s loss … is the existence of the need” for the services. The need arrived at the moment of impact and it is the same need whoever happens to meet it: a hired stranger, a kindly neighbour, her mother, or the contrite man who caused it. As the Court put it, from the plaintiff’s point of view “the identity of the person who fulfils the need caused by the tort matters not.”³Kars (n 1), per Toohey, McHugh, Gummow and Kirby JJ. He is, in the eye of the law, simply the cheapest carer she could have found. His tenderness reduces her bill. It does not reduce her loss.

The trust that vanishes

The English answer is more ingenious, which is usually a warning. In Hunt v Severs the House of Lords agreed that gratuitous care is recoverable, but decided the plaintiff holds the money on trust for the carer — the damages are really the carer’s recompense, routed through the victim.⁴Hunt v Severs [1994] 2 AC 350, 363, per Lord Bridge of Harwich, adopting Cunningham v Harrison [1973] QB 942. From which a tidy syllogism follows: if the carer is the tortfeasor, he would hold a claim on trust for himself, the law does not require so circular a performance, and recovery fails. The wheelchair-pushing husband pays nothing, because to pay himself would be absurd.

It is a fine machine. The trouble is that the trust at its heart does not exist when you look for it. Suppose the wife recovers faster than predicted, or dies the following spring. The fund set aside for years of future care does not pass to the carer; it stays with her, or her estate.⁵The point is made in Underhill and Hayton, Law of Trusts and Trustees (15th ed, 1995) 124, cited in Kars (n 1): the supposed trust is “an illusory trust because in reality he is in the position of absolute beneficial owner of such money.” Suppose she tires of being nursed by the man who maimed her and hires a stranger instead. The carer-beneficiary cannot complain; he was never entitled to insist on the post. A trust whose beneficiary cannot enforce it, and whose corpus reverts to the settlor, is not a trust. It is a courtesy in fancy dress. And a doctrine assembled to honour an imaginary trust should not be permitted to bar a real woman’s real loss. Stephen J had said as much a generation earlier: the plaintiff is “beneficially entitled to the judgment he obtains,” without “any trust” hovering over it.⁶Griffiths v Kerkemeyer (1977) 139 CLR 161, 177, per Stephen J.

The only one in the room who is smiling

Strip away the trust and a plainer figure is left standing in the courtroom, the one who was really arguing all along. The husband did not bring the appeal. His insurer did, in his name, exercising its rights of subrogation — which is the polite legal word for wearing another man’s face to court.⁷In Kars the arguments “were voiced by his insurer, exercising its rights of subrogation”: (n 1). Malaysian motor litigation runs on precisely this machinery, as Queensland’s did: compulsory third-party cover, premiums paid into a fund, the fund standing behind every negligent driver whether he can pay or not.

Once that is seen, the “he pays twice” objection collapses into its own premium pool. The husband pays nothing twice. He pays once, in devotion, which costs him his evenings and his back but not his bank. The money, if it is awarded, comes from the insurer — the party that took his premiums precisely against the day he might injure someone. Deny the wife her damages and the husband is no better off; only the insurer is, relieved of a liability by the accident of who is doing the lifting. Windeyer J fixed the principle in a sentence that has not aged: benevolence is conferred “for the benefit of the sufferer and not for the benefit of the wrongdoer.”⁸National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569, 600, per Windeyer J. To let the wife’s love discharge the insurer’s debt is to make her affection a gift to a corporation. Lord Reid thought such a result “revolting to the ordinary man’s sense of justice … the only gainer would be the wrongdoer.”⁹Parry v Cleaver [1970] AC 1, 14, per Lord Reid, cited in Kars (n 1). He was speaking of strangers’ charity, but the revolt is sharper, not softer, when the charity is the victim’s own.

The advice no one should have to give

Follow the Hunt rule into a solicitor’s office and watch what it makes him say. A daughter has given up her work to nurse her mother, whom she also, at a roundabout, negligently injured. The solicitor must now advise her, if he is doing his job, that every hour she spends at her mother’s bedside is an hour of damages quietly forfeited — and that the family would do better, financially, to send her back to the office and hire a stranger at an agency rate before judgment.¹⁰The “form over substance” concern is articulated in Kars (n 1): families would be advised “to look to commercial care givers, at least before judgment,” so that “form would once again triumph over substance.” He must counsel her, in effect, to love her mother less efficiently.

A rule that rewards the cold arrangement and penalises the warm one has mistaken its own purpose. The whole apparatus of Griffiths v Kerkemeyer exists because the law decided, rightly, that a victim’s needs do not go uncompensated merely because kindness happened to meet them first. To turn that doctrine around and use the kindness as a reason to pay nothing is to saw off the branch on which the principle was built. Worse, it invites the manufacture of paper: care contracts drafted between spouses, agency invoices procured for show, the whole sad theatre of arranging one’s affections to satisfy a damages assessor. The law should not make honest families behave like tax planners. The Kars Court saw the danger plainly — that “form would once again triumph over substance,” and bring the law “into disrepute.”¹¹Kars (n 1). One need not be a sentimentalist to prefer a rule that lets a daughter nurse her mother without first consulting counsel on the damages implications. One need only have met a family.

What we already believe

The principle is portable enough for any court in the Commonwealth to lift off whole and carry home: the plaintiff’s loss is the need for care; the need is the same whoever meets it; the carer’s identity is therefore irrelevant; and since the tortfeasor’s identity is merely the carer’s identity wearing a second hat, it is irrelevant twice over. The only party with anything to gain from the contrary rule is the insurer, and the law does not exist to spare insurers the consequences of the cover they have sold. A judge minded to take this up is not striking out alone but keeping good company. The need-based rule is the common inheritance of the Commonwealth — the rule the old English law itself professed in Donnelly v Joyce before Hunt v Severs turned from it, and the rule Canadian courts have long applied to the devoted wife or mother who is not to be treated as a volunteer the wrongdoer may take for granted. On the narrower and harder question — whether the carer’s being the very wrongdoer defeats the claim — Australia answered no in Kars, and Singapore, on facts that might have been lifted from the same pleadings, has lately answered no as well. An advocate in Kuala Lumpur, Singapore, Sydney or Toronto need not persuade his court to invent anything; he need only invite it to prefer the better-reasoned of two paths the common law has already laid, and to notice that the worse path leads nowhere but the insurer’s relief.

The interesting discovery, for a Malaysian lawyer, is that we need not import this principle at all. We already hold it. When a young woman was left a quadriplegic and nursed at home by her family, our courts awarded the commercial cost of that nursing, observing that compensation may be given in money for services rendered by a parent.¹²Marappan & Anor v Siti Rahmah bte Ibrahim [1990] 1 MLJ 99. When a child was disabled at birth, the Federal Court raised the award for the value of care provided by her parents and added the cost of training her caregiver.¹³Inas Faiqah Mohd Helmi v Kerajaan Malaysia [2016] 2 CLJ 885; [2016] 2 MLJ 1 (FC). That is Griffiths v Kerkemeyer in all but name — the need-based rationale, compensating the loss and not the carer. It is the very foundation on which Kars was built, and the very foundation Hunt v Severs abandoned. To adopt Kars would not be to receive a foreign doctrine. It would be to follow our own premise to its honest conclusion. To adopt Hunt, by contrast, would be the genuine departure: grafting onto Malaysian law a trust for the carer that our courts have never once required.

Section 28A of the Civil Law Act 1956 does not stand in the way. It legislates closely on loss of future earnings — the age cut-offs, the living-expenses deduction, the statutory multiplier — but on gratuitous care it is silent.¹⁴Civil Law Act 1956, s 28A, inserted by Act A602 (in force 1 October 1984), amended by Act A1591 (2019). The provision restricts loss-of-earnings recovery but is silent on gratuitous nursing or attendant care, which is left to the received common law under ss 3 and 5. Into that silence the common law speaks, and the common law we have already chosen is the need-based one. Nor is there anything novel in our preferring the High Court of Australia to the House of Lords: the Federal Court did exactly that when it took Rogers v Whitaker over Bolam on the standard of medical disclosure.¹⁵Foo Fio Na v Dr Soo Fook Mun [2007] 1 MLJ 593 (FC), preferring Rogers v Whitaker (1992) 175 CLR 479 to Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. Australian authority is persuasive but not binding: Jamil bin Harun v Yang Kamsiah [1984] 1 MLJ 217 (PC). The road is paved.

And our facts are the Kars facts. The wife injured by the husband who then nurses her is no Australian curiosity; she sits in our courts, and her damages, when they are awarded, are paid not by her husband’s chastened hand but by his insurer — a party that has bound itself to pay, and bound itself twice. By statute it must satisfy her judgment “notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled the policy”; it is liable to indemnify whatever the policy purports to cover, and no condition buried in the fine print will rescue it.¹⁶Road Transport Act 1987, s 96(1) (direct duty to satisfy the third party’s judgment, in the words quoted); s 91(3) (liability to indemnify); ss 94–95 (conditions and contracting-out struck down). See Chen Boon Kwee v Berjaya Sompo Insurance Bhd [2025] 1 MLJ 158 (FC). And by private compact among themselves — the Motor Insurers’ Bureau Domestic Agreement, which the Federal Court has called an integral part of the legal framework for compensating third-party victims — the insurers have undertaken that whichever of them was on cover at the moment of the crash remains the “insurer concerned,” and must pay, notwithstanding the fraud, the non-disclosure, the misrepresentation, even the dishonesty of its own insured, escaping only if it cancelled the policy or obtained a declaration before the accident.¹⁷Motor Insurers’ Bureau Domestic Agreement 1992, cl 1 (“Insurer Concerned”) and cl 3(a); AmGeneral Insurance Bhd v Sa’amran Atan [2022] 8 CLJ 175 (FC), holding the MIB agreements “an integral part of the legal framework to provide a comprehensive scheme to compensate third-party victims” and that the “insurer concerned” is bound absent a pre-accident cancellation or declaration; Hameed Jagubar bin Syed Ahmad v Pacific Orient Insurance Co Bhd [2017] 10 CLJ 278 (CA).

Pause on what that means, because the title has been waiting for it. An insurer that has promised to pay even when its own insured lied to its face — even when he defrauded it — now rises in court to say it should not pay because the man was kind. Having swallowed the camel of fraud, it strains at the gnat of devotion. That is the sudden modesty: a party that contracted away every honest excuse, discovering a delicate scruple at the one expense that cannot be dressed up as anybody’s wrong. The husband pays what devotion costs him and nothing more; the fund pays the money, which is the very thing the premiums were taken to do, and the very thing the law compelled him to buy.

There remains the honest concession. Kars is not without its anomalies, and the High Court said so itself; every rule in this corner of the law buys its coherence at some price. But the choice is not between an imperfect rule and a perfect one. It is between two imperfect rules — one that keeps faith with the victim’s need and lets a family love without forfeit, and one that rescues an insurer by way of an imaginary trust. Between those, a court should not hesitate. What a court should not do is dress restriction up as doctrine. If recovery for gratuitous care is one day to be capped or thresholded — as Australia has since done by statute, in daylight, with hours and ceilings plainly stated — that is work for Parliament, openly undertaken, and not for an English trust smuggled in through a side door no one in Malaysia ever asked to have opened. Receive the principle. Leave the limits to the legislature. And let the man go on pushing the wheelchair, knowing the law has understood, at last, what he is doing and who should pay for it.

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This article is written for a general readership and does not constitute technical or legal advice. Readers with legal questions are encouraged to seek independent legal advice.

The author thanks R. Gana Naidu, for bringing this idea to him, KN Geetha, TP Vaani, JN Lheela, and Lydia Jaynthi at GK Legal. Our gratitude to Getty Images of Unsplash for the image.

Claude, Anthropic’s AI, smoothed the drafting; Perplexity Pro checked the facts. The argument, the views, and the errors remain the author’s.

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