Geaghan v D'Aubert

[2002] NSWCA 260

CITATION:	Geaghan v D'Aubert [2002] NSWCA 260
FILE NUMBER(S):	CA 41021/00
HEARING DATE(S):	16 July 2002
JUDGMENT DATE:	13 August 2002
PARTIES :	Paul James Geaghan (Appellant) Jennifer Beryl D'Aubert (Respondent)
JUDGMENT OF:	Handley JA at 1; Stein JA at 3; Foster AJA at 69

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 82/99
LOWER COURT JUDICIAL OFFICER :	Phelan DCJ

COUNSEL:	J D Hislop QC/P J Gormly (Appellant) K P Rewell SC/M Kumar (Respondent)
SOLICITORS:	Stewart Cuddy & Mockler (Apellant) Stacks - The Law Firm (Respondent)
CATCHWORDS:	MOTOR VEHICLE ACCIDENT - quantum - assessment of damages - past and future domestic assistance - Griffiths v Kerkemeyer - construction of s 72 of the Motor Accidents Act 1988 - loss of earning capacity - whether Griffiths v Kerkemeyer includes the provision of care to an injured persons' pets or a hobby - statutory construction and interpretation generally - D
LEGISLATION CITED:	Civil Liability Act, s 15(3) Interpretation Act 1987, s 2B, s 33, s 34 Motor Accidents Act, s 2A, s 2B, s 68A, s 72 Motor Accidents Compensation Act 1999, s 128(3)
CASES CITED:	Beecham Group Ltd v Bristol Laboratories Ltd [1978] RPC 154 Griffiths v Kerkemeyer (1977) 139 CLR 161 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Sturch v Willmott (1997) 2 Qd R 310 Sullivan v Gordon (1999) 47 NSWLR 319 Younie v Martini (Unreported, Court of Appeal, 21 March 1995)
DECISION:	1. Appeal allowed. 2. The verdict and judgment in the District Court set aside and in lieu thereof a verdict and judgment be entered for the respondent in the sum of $61,879. 3. The trial judge's order that the appellant pay the respondent's costs of the trial on a solicitor/client basis from 13 May 1999 be set aside and in lieu thereof order that the appellant pay the respondent's costs of the trial in the District Court on a party/party basis. 4. The respondent is to pay the costs of the appeal but receive a certificate under the Suitors' Fund Act if otherwise entitled. 5. The cross-appeal dismissed with costs. 6. The respondent is ordered to repay the appellant by way of restitution the sum of $31,290 together with interest thereon at the relevant court rates.

CA 41021/00
DC 82/99

HANDLEY JA
STEIN JA
FOSTER AJA

Tuesday, 13 August 2002

GEAGHAN v D’AUBERT

Facts

The appellant, Paul James Geaghan, appeals against the award of past and future domestic assistance to the respondent (plaintiff), Jennifer Beryl D’Aubert, by Judge Phelan in the District Court. The respondent was injured in a motor vehicle accident in March 1998. The appellant admitted liability and his Honour found that no contributory negligence by the respondent had been established. His Honour entered a verdict and judgment for the respondent in the sum of $93,169 and ordered the appellant to pay the respondent’s costs on a solicitor and client basis.

The appeal concerns the construction to be given to s 72 of the Motor Accidents Act 1988 (the MA Act ). His Honour found that the respondent had received 5 hours per week gratuitous domestic services for 141 weeks in the past and was likely to receive 5 hours per week for the 5 years following the judgment. The appellant contends that s 72(2) of the MA Act , relevant at the time, prohibits the award of any damages for such services as the service was or is to be provided for less than 6 hours per week. In support of this contention, the appellant submits that regard may be had to extrinsic materials (s 34 Interpretation Act 1987) and also the legislative history of s 72 in the original Act in 1988.

The respondent submits that there is no ambiguity in s 72(2) and it is impermissible to use the extrinsic materials the appellant seeks to rely upon. Further, on its plain and literal construction, the word ‘and’ between subparas (a) and (b) in s 72(2) should not be read disjunctively as if it read ‘or’.

The cross-appeal maintains that his Honour should have awarded at least 2 hours per week for the care by her husband of the respondent’s dogs and horses. The cross-appeal also argues that his Honour should have awarded the respondent some amount of damages for loss of future earning capacity, in the nature of a lump sum or ‘buffer’.

Held per Stein JA (Handley JA and Foster AJA agreeing):

The appeal

1) It is not unusual for courts to examine a prior statutory provision dealing with the same subject matter to enable them to construe a current statute. The reason being that the history of the legislative scheme may assist in ascertaining the legislative intent. In view of this, it is open to the court to examine the immediate preceding legislative form of s 72(2).

2) When regard is had to the extrinsic materials and the legislative history of s 72 of the 1988 Act, together with the various objects provisions in the Act, a purposive construction leads to the conclusion that s 72(2) requires both limbs (a) and (b) to be satisfied before compensation is payable under the provision. Similarly, no compensation is to be awarded if the services are provided or are to be provided for less than 6 months.

3) The appeal should be upheld and the compensation of $31,290 for gratuitous services is to be deleted from the verdict, subject to the cross-appeal.

Cross-Appeal

1) In view of the circumstances, his Honour was entitled to conclude that the plaintiff’s continuing disabilities were not likely to be conducive of future economic loss.

2) When s 70A of the Act is considered, it cannot be said that, adopting his Honour’s view of the evidence, there was a 25% chance of economic loss in the future.

- Younie v Martini (Unreported, Court of Appeal, 21 March 1995) applied.


3) Griffiths v Kerkemeyer does not extend to a plaintiff’s hobby and his Honour was entitled to reject the care of the animals on that basis. Further, it would not be appropriate to extend Griffiths v Kerkemeyer to cover the care of animals kept as a hobby.

Orders

1) Appeal allowed.

2) The verdict and judgment in the District Court set aside and in lieu thereof a verdict and judgment be entered for the respondent in the sum of $61,879.

3) The trial judge’s order that the appellant pay the respondent’s costs of the trial on a solicitor/client basis from 13 May 1999 be set aside and in lieu thereof order that the appellant pay the respondent’s costs of the trial in the District Court on a party/party basis.

4) The respondent is to pay the costs of the appeal but receive a certificate under the S uitors’ Fund Act if otherwise entitled.

5) The cross-appeal dismissed with costs.

6) The respondent is ordered to repay the appellant by way of restitution the sum of $31,290 together with interest thereon at the relevant court rates.

CA 41021/00
DC 82/99

HANDLEY JA
STEIN JA
FOSTER AJA

Tuesday, 13 August 2002

GEAGHAN v D’AUBERT

Judgment

1 HANDLEY JA: In this appeal I have had the advantage of reading the judgment of Stein JA in draft form. I agree with that judgment. I would merely add to the citation in paragraph 64 of his judgment from the judgment of Mason P in Sullivan v Gordon (1999) 47 NSWLR 319 at 324 (para 14) where he said: “Pure logic is not the only matter at play in this difficult area of the law”, a reference to Beecham Group Ltd v Bristol Laboratories Ltd [1978] RPC 154 at 204 where Lord Simon said:

“English law has always resolutely refused to carry a legal doctrine to its logical conclusion in the face of convenience”.

2 I agree with the orders proposed by Stein JA.

3 STEIN JA:

Introduction

4 With the leave of the court the appellant, Paul James Geaghan, appeals against the award of past and future domestic assistance to the respondent (plaintiff), Jennifer Beryl D’Aubert, by Judge Phelan in the District Court on 24 November 2000. The appeal concerns the construction to be given to s 72 of the Motor Accidents Act 1988.

5 The respondent was injured in a motor vehicle accident on 10 March 1998. The appellant admitted liability and his Honour found that no contributory negligence by the respondent had been established.

The assessment of damages

6 His Honour proceeded to assess the damages. He assessed the respondent’s non-economic loss at 29% of a most extreme case, resulting in a figure of $51,000. Past economic loss was agreed at $1,800. His Honour awarded $9,079 for past and future out-of-pocket expenses. This produced a total of $61,879.

7 The learned judge then turned to the respondent’s claim for domestic care under Griffiths v Kerkemeyer (1977) 139 CLR 161. This related to help in the home provided by her husband and also looking after the respondent’s horses and dogs. His Honour excluded the care of the animals, which he said ‘can only be categorised as a hobby’. His Honour concluded that the husband provided significant care in the home and was likely to do so for 5 years into the future.

8 His Honour then said:

For the past I allow $16.80 per hour for five hours per week for the past 141 weeks producing a figure of $11,844. For the future, using a multiplier of 231.5 and the same rate I allow a figure of $19,446. I have taken into account exigencies in choosing the period of five years and thus I will not discount it further. [Emphasis added]

9 Accordingly, his Honour entered a verdict and judgment for the respondent in the sum of $93,169 and ordered the appellant to pay the respondent’s costs on a solicitor and client basis from 13 May 1999, the date upon which a Calderbank offer had been made to settle the proceedings for $83,100.

The issue of construction

10 From the above summary it will be seen that his Honour found that the respondent had received 5 hours per week gratuitous domestic services for 141 weeks in the past and was likely to receive 5 hours per week for the 5 years following the judgment.

11 It is the appellant’s contention that s 72(2) of the Motor Accidents Act (the MA Act), relevant at the time, prohibits the award of any damages for such services as the service was or is to be provided for less than 6 hours per week.

12 Before turning to discus the issue of construction, I should mention that the respondent has cross-appealed, also with the leave of the court. The cross-appeal maintains that his Honour should have awarded at least 2 hours per week for the care by her husband of the respondent’s dogs and horses. The cross-appeal also maintains that his Honour should have awarded the respondent some amount of damages for loss of future earning capacity, in the nature of a lump sum or ‘buffer’.

Section 72(2)

13 At the relevant time s 72(2) of the MA Act provided:

No compensation is to be awarded if the services are provided, or are to be provided:
(a) for less than 6 hours per week, and
(b) for less than 6 months.

The submissions of the parties

14 On behalf of the appellant, Mr Hislop QC submits that no compensation is to be awarded if the services are provided, or are to be provided, for less than 6 hours per week, and no compensation is to be awarded if the services are provided, or are to be provided, for less than 6 months. Mr Hislop argues that the Act requires a purposive approach to construction (see s 2B of the Act and s 33 of the Interpretation Act 1987). To that end he further submits that regard may be had to extrinsic materials (s 34 Interpretation Act).

15 In support of the construction contended for by the appellant, Mr Hislop also prays in aid the legislative history of s 72 in the original Act in 1988.

16 On behalf of the respondent, Mr Rewell SC submits that, on its plain and literal construction, the word ‘and’ between subparas (a) and (b) in s 72(2) should not be read disjunctively as if it read ‘or’. He submits that there is simply no ambiguity in s 72(2) and it is impermissible to use the extrinsic materials sought to be relied on by the appellant.

17 Mr Rewell submits that it cannot be demonstrated that Parliament made a mistake in the use of the word ‘and’ in s 72(2) between subparas (a) and (b).

18 Counsel also draws attention to s 72(2) being replicated in s 128(3) of the Motor Accidents Compensation Act 1999 (which replaced the MA Act) but with no equivalent objects clause as in s 72(1). He also points to the Parliament using the same words in s 15(3) of the Civil Liability Act 2002.

Consideration

19 The MA Act contains extensive object provisions in s 2A. This section contains many exhortations to keep down the cost of damages under the scheme in the Act. Section 2B provides that in interpreting a provision of the Act, the construction which promotes an object of the Act should be preferred to one which does not do so. As pointed out during argument, Part 6 of the Act contains its own objects. Section 68A provides:

(a) to control the amount of damages that may be awarded to a claimant for the purpose of ensuring that the scheme under this Act is affordable, and
(b) to achieve this control by the deliberate strategy of placing the burden of ensuring affordability on those who suffer relatively minor injuries so that sufficient funds are available to more fully compensate those who suffer more severe injuries.

20 Further, s 72(1) contains objects for the section itself. They are:

(a) to limit to average weekly earnings the level of payment for services for additional domestic assistance, and
(b) to restrict access to those payments to claims where the need is long term, and
(c) to exclude claims where the services provided would have been rendered as a matter of course regardless of the relevant motor accident.

21 While these objects are all of limitation on the domestic assistance which is recoverable, it is of interest to note that while objective (b) speaks of restricting access to payments for long term need, there is no specific object directed to limiting claims by reference to weekly hours of assistance.

22 It is not unusual for courts to examine a prior statutory provision dealing with the same subject matter to enable them to construe a current statute. The reason is plain. The history of the legislative scheme may assist in ascertaining the legislative intent.

23 Pearce and Geddes (Statutory Interpretation in Australia (5th Edition)) have commented on the good sense of this approach. The learned authors say [at p 73]:

If one views the whole scheme of the legislation, it is possible to see the way in which the legislature is dealing with the subject matter: whether it is extending or contracting benefits; whether it is increasing penalties and so on. Such information must be of use to a court in its endeavour to understand the legislature’s wishes.

24 Thus, in my view, it is open to the court to examine the immediate preceding legislative form of s 72(2).

25 The original form of s 72 of the MA Act in 1988 was as follows. Two separate provisions governed the subject matter, subsection (2) dealt with the period in which the services are or are to be provided, and subsection (4) concerned the minimum number of hours of service provided or to be provided.

26 Section 72(2) provided:

No compensation shall be awarded unless the services are provided or to be provided, for not less than 6 months and may be awarded only for services provided or to be provided after the 6-month period.

27 Section 72(4) provided:

No compensation shall be awarded unless the services provided or to be provided are not less than 6 hours per week and may be awarded only for services provided or to be provided after the first 6 hours.

28 It will be seen that these provisions differ from the new s 72(2) which replaced the 1988 version in 1993. First, the qualifying period of the first 6 months and the first 6 hours was deleted. Second, it conflated the two provisions into one.

29 However, there was no doubt that the original s 72 in the 1988 Act meant that a plaintiff was not entitled to compensation under the section unless the entitlement was for more than 6 hours per week and for more than 6 months. This was confirmed in Sullivan v Gordon (1999) 47 NSWLR 319 at 335 per Beazley JA at [74].

30 Accepting the original MA Act’s intention (that for compensation to be awarded, both limbs need to be satisfied) leads to a consideration of whether there is any ambiguity in the amended provision (s 72(2)) with which we are concerned. Adopting a strict literal construction would likely produce the answer that no compensation is payable if the services are provided for less than 6 hours and for less than 6 months. However, if services are provided, for example for 5 hours but for more than 6 months, that is no bar to recovery.

31 Such an approach begs the question: Is this what the legislature intended when it amended s 72 in 1993? Such a construction would seem to be at odds with the objects of the Act as set out in s 2A, with those in Part 6 (s 68A) and also the objects within the section itself.

32 An alternative construction is available to the effect that no compensation is recoverable if the services are provided for less than 6 hours per week and no compensation is recoverable if the services are provided for less than 6 months.

33 There being more than one construction available, I am of the opinion that it is open to the court to have regard to the extrinsic materials (s 34(1)(b) Interpretation Act).

34 When regard is had to the extrinsic materials surrounding the 1993 amendments to the MA Act, the preferable construction becomes clearer. The original 1993 amending Bill proposed the omission of s 72 in the 1988 Act and its replacement with a provision which did not include the limitations in s 72(2) and s 72(4) of the original Act. The second reading speech of 19 May 1993 makes this plain (Hansard Parliamentary Debates Legislative Assembly 2334).

35 However, the legislative intention changed on 27 October 1993 with the second reading speech of the Motor Accidents (Amendment) Bill. The Attorney-General explained that the deletion of the 6-hour 6-month requirement, which was proposed in the Bill in May 1993, was likely to be too costly.

36 The following are passages taken from the second reading speech of 27 October 1993. These excerpts make it abundantly obvious that the Attorney-General was of the opinion that no compensation would be payable unless a plaintiff was provided with home care/domestic services for more than 6 hours per week and also for more than a 6 month period.

The twelfth amendment reintroduces the six-hour six-month barrier. A major provision of the original bill was to liberalise home care compensation. At the moment, compensation is available only where family members provide home care services after the first six months of services, and those services exceed six hours per week.
…
The amendment reintroduces the six-hour six-month barrier so that claimants apparently will become entitled to compensation only after services have been provided by family members for six months and then only where the services exceed six hours. However, under the proposed amendments, claimants will be entitled to compensation for the entire period, including the first six-hours six-months, provided they meet the six-hour six-month threshold.
…
As I previously outlined, it is proposed to restore the six-hour six-month threshold in relation to the availability of compensation for home care services.
…
Section 72 of the Act currently provides that compensation provided by family members in the form of home care services is payable only after these services have been provided for six months and then only where the services exceed six hours. This provision was found to be counter-productive, as claimants tend to engage commercial services for which the full costs may be claimed. The Motor Accidents (Amendment) Bill removes the six-hour six-month barrier. The increase in premiums arising from this change was originally estimated at $1 per vehicle. However, recent actuarial estimates indicate that this figure could be as high as $11 per vehicle. Coupled with the increase in premiums of $10 per vehicle resulting from the change to the verbal threshold in section 79(1), a further increase of up to $11 is considered to be unacceptable. In the circumstances, it is proposed to restore the six-hour six-month threshold. However, I wish to emphasise that the proposed amendments would still entitle claimants to compensation for the whole period, including the first six hours six months, provided they meet the six-hour six-month threshold. With those comments I commend the bill. [ Hansard Parliamentary Debates Legislative Council 4499 – 4501]

37 The explanatory notes to the Bill [Hansard 4503] also confirm the Attorney’s opinion.

38 Given the extrinsic material referred to above and the legislative history of s 72 of the 1988 Act, together with the various object provisions in the Act, a purposive construction leads to the conclusion that s 72(2) requires both limbs (a) and (b) to be satisfied before compensation is payable under the provision. No compensation is to be awarded if less than 6 hours per week of service is provided or is to be provided. Similarly, no compensation is to be awarded if the services are provided or are to be provided for less than 6 months.

39 It follows in my opinion that the appeal should be upheld and the compensation of $31,290 for gratuitous services is to be deleted from the verdict, subject to the cross-appeal.

Cross-Appeal
Loss of earning capacity

40 The cross-appellant complains that no award was made for her future loss of earning capacity. She submits that a lump sum or ‘buffer’ should have been awarded.

41 His Honour explained that Mrs D’Aubert was a teacher by profession. She had taught since 1977. Apart from $1800 loss of earnings immediately after the accident, she had suffered no loss of earnings up to the date of trial.

42 However, his Honour found that her disabilities did impact on her occupation as a teacher. Phelan DCJ said that she had ‘a good deal of discomfort from teaching’. Indeed, encouraged by her physiotherapist, she had transferred her employment to Kempsey High to be closer to home. However, this move involved no longer teaching computer studies but teaching maths. She found this change quite demanding. However, his Honour noted that next year she would be mainly teaching computer studies and her physiotherapist’s recommendations would achieve some alleviation of her symptoms.

43 As to her future occupation as a teacher his Honour commented:

… she is well motivated to recover. She did suggest that she was seriously concerned about her ability to continue in her job as a teacher but it seems that, although she does have a good deal of discomfort from teaching, she had been continuing without days or time off and none of the doctors has suggested that she is unfit to continue her career. I accept that she will continue to suffer discomfort in the course of her work for some time.

44 Later in his reasons for judgment, after reviewing the medical evidence, his Honour said:

The fact that she has continued to have problems is of concern and leads me to the view that, whilst on the probabilities in the long term she may well recover, it is not necessarily clear that she will, although it seems to me likely that there will be some improvement. But as I say the probability is that she will, in the long term, recover.

45 However, his Honour concluded that while he accepted that the plaintiff was teaching under difficulty, ‘in substance her capacity to teach is not otherwise affected and I propose not to allow any figure for that’ (that is, for future economic loss).

46 On behalf of the cross-appellant, Mr Rewell submits that bearing in mind his Honour’s findings of Mrs D’Aubert’s difficulties with teaching and his Honour’s finding of 29% of a most extreme case, it is difficult to comprehend how no damages were awarded for future economic loss. In his submission, his Honour’s findings would satisfy the requirements of s 70A of MA Act in that there was at least a 25% chance that the plaintiff would, at some time in her remaining 18 years of working life, suffer some incapacity for work as a result of her accident related disabilities. He submits that the evidence called for a lump sum or ‘buffer’ to compensate the plaintiff for the prospect of future economic loss.

47 Mr Rewell relies on Younie v Martini (Unreported, Court of Appeal, 21 March 1995). In that appeal, Priestley JA, after referring to Medlin v State Government Insurance Commission (1995) 182 CLR 1 and Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, said that these cases brought about the result that:

… where a plaintiff demonstrates some loss of earning capacity lasting past the date of trial then notwithstanding difficulty in assessing an amount for future economic loss, courts are bound to award something for future economic loss unless, on the material before the court, it can be seen very confidently that notwithstanding the loss of capacity the plaintiff will not in fact suffer any damage of the future economic kind because of that lack of capacity.
In the present case it was submitted for the defendant/respondent that because the trial judge had found significant impairment to the extent that he had it did not have to follow that the plaintiff had suffered a loss, even partially, of future earning capacity.
I agree that it does not necessarily follow but in the circumstances of the present case and in the light of the nature of the injury suffered by the plaintiff, found by the trial judge to be continuing to some extent at the time of trial, and the nature of her duties, it seems to me that some award should have been made for future economic loss. That is, it seems to me that the material which led the judge to assess significant impairment at eighteen per cent in this case, should also have led him to conclude that there was a partial loss of earning capacity even, although not yet reflected in actual loss, for which he should award some compensation on the Malec v Hutton principle against the possibility of future loss from that diminished earning capacity. That much, with respect, appears to me to be fairly plain.

48 Mr Rewell submits that bearing in mind his Honour’s findings, it is difficult to see how he could have been ‘very confident’ that the plaintiff would not in fact suffer any damage ‘of the future economic kind’.

49 Notwithstanding Mr Rewell’s submission it seems to me that his Honour was entitled to conclude that the plaintiff’s continuing disabilities were not likely to be conducive of future economic loss. There are a number of reasons for this.

50 First, following her injury on 10 March 1998 she was back at work within a month. Thereafter, she lost no time from teaching despite experiencing discomfort.

51 The cross-appellant suffered a soft tissue whiplash type injury to her neck in the accident. There were some underlying degenerative changes which preceded her accident. The thrust of much of the medical evidence supported the view that the cross-appellant was likely to improve. From the passage from the judgment quoted earlier, it is clear that his Honour believed that in the long term the cross-appellant would recover.

52 In these circumstances, it is my opinion that it was open to his Honour to conclude that this was not a case where he was persuaded that there was likely to be any future economic loss. Certainly, when s 70A of the Act is considered, and his Honour did not mention the provision, it cannot be said, that adopting his Honour’s view of the evidence, there was a 25% chance of economic loss in the future. Younie does not mandate an award for future economic loss as Priestley JA makes clear in the passage cited earlier. It all depends upon the facts of the particular case.

Claim for care of the animals

53 At the hearing before Judge Phelan the cross-appellant claimed compensation for the gratuitous care by her husband of her 3 dogs and 8 horses. Prior to the accident the cross-appellant had the Kelpie dogs and two horses. She rode and cared for the horses. The dogs and horses obviously brought her great pleasure. Following the accident she was unable to ride and disposed of one of the horses. However, she later acquired 7 miniature horses. Her husband gave evidence that, after his wife’s accident, he had to look after the dogs and horses. He gave evidence of the time that it took him to do this.

54 As mentioned earlier, his Honour was of the view that no Griffiths v Kerkemeyer claim was maintainable in relation to the care of the animals since the activities concerning the dogs and horses was a hobby.

55 The cross-appellant abandons any claim regarding the 7 miniature horses acquired after the accident. The cross-appeal is therefore confined to the three Kelpie dogs and one horse.

56 Mr Rewell submits that the evidence, when analysed, yields an additional 1 to 2 hours per week gratuitous care by the husband for the cross-appellant. That is, in addition to the 5 hours per week domestic care allowed by his Honour in the past and for a period of 5 years into the future.

57 Neither counsel was able to point to any decision where gratuitous care of pets as a hobby had been allowed under Griffiths v Kerkemeyer. Besides domestic care in the home, counsel drew attention to the not uncommon situation of allowance being made for lawn mowing and garden maintenance.

58 Mr Rewell submits that not to allow a claim such as this would be unfair and mean that an injured plaintiff might have to give up pets or a hobby because he or she could not be compensated for the care provided to allow the pets or hobby to be retained.

59 On the other hand, Mr Hislop submits that it would be unfair to place the burden of the cost of caring for a large number of animals, or for example, a prize rose garden, or some other hobby, at the door of a defendant.

60 If the pets or hobby are lost or diminished to a plaintiff as a result of an accident, then this, so Mr Hislop submits, is to be included within the head of general damages.

61 I do not believe that Griffiths v Kerkemeyer, or any of its extensions, includes the provision of care to an injured persons’ pets or a hobby. The cases have accepted domestic care at home, in the garden and shopping. But counsel has found no case which extends domestic assistance to the care of domestic pets or the retention of a hobby.

62 It might be that no relevant ‘need’ of a plaintiff to the provision of such a service as pet care or a hobby has been established. Alternatively, it may be that if a plaintiff was unable to look after a pet, or lost a hobby, that loss more appropriately sounded in general damages. It may also be that such a loss may be seen as too remote a damage to be laid at a defendant tortfeasor’s door.

63 Some of these types of considerations are inherent in the discussion of Mason P in Sullivan v Gordon (at pp 322 – 324). Mason P stressed the exceptional nature of Griffiths v Kerkemeyer and the difficulty of recognising what ‘needs’ of a plaintiff are to be included, as well as their proper limits.

64 While agreeing with Beazley JA, Mason P concluded by saying [at para 14]:

Nevertheless, it may be necessary to consider whether it is always reasonable to lay at the tortfeasor’s door the cost of care for children born after the injury. Pure logic is not the only matter at play in this difficult area of law.

65 In my view, any consideration of an extension of the categories of needs under Griffiths v Kerkemeyer should be carefully evaluated, as for example in Sullivan v Gordon and Sturch v Willmott (1997) 2 Qd R 310.

66 Whichever way it is put, on a ‘needs’ basis, general damages or remoteness, it seems to me that Griffiths v Kerkemeyer does not extend to a plaintiff’s hobby and his Honour was entitled to reject the care of the animals on that basis. Nor do I believe that it would be appropriate to extend Griffiths v Kerkemeyer to cover the care of animals kept as a hobby.

67 It follows from the above that the cross-appeal should be dismissed with costs.

Orders

68 1. Appeal allowed.

2. The verdict and judgment in the District Court set aside and in lieu thereof a verdict and judgment be entered for the respondent in the sum of $61,879.

3. The trial judge’s order that the appellant pay the respondent’s costs of the trial on a solicitor/client basis from 13 May 1999 be set aside and in lieu thereof order that the appellant pay the respondent’s costs of the trial in the District Court on a party party basis.

4. The respondent is to pay the costs of the appeal but receive a certificate under the Suitors’ Fund Act if otherwise entitled.

5. The cross-appeal dismissed with costs.

6. The respondent is ordered to repay the appellant by way of restitution the sum of $31,290 together with interest thereon at the relevant court rates.

69 FOSTER AJA: I agree with Stein JA.

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