Damages—Personal injuries—Assessment—Permanent disablement—Services provided to plaintiff gratuitously—Whether damages recoverable in respect of gratuitous services—Measure of damages—Market cost of provision of services or loss suffered by person providing them—Whether damages held in trust for person providing services.
Decisions
1977, Aug. 31. The following written judgments were delivered: - GIBBS J. I have had the advantage of reading the reasons for judgment prepared by my brother Mason and am in agreement with him that the appeal and cross-appeal should be dismissed. I have no need to add anything to what he has said as to the particular circumstances of this case. But there are two matters of principle which I must discuss. (at p162)
2. It was suggested in this case, as it has been in other cases recently, that it was wrong for the learned trial judge to allocate specific amounts to various heads of damage, instead of considering directly what global sum represented fair compensation for the injuries and their consequences. It seems to be necessary to repeat that the remarks of Barwick C.J. in Arthur Robinson (Grafton) Pty. Ltd. v. Carter (1968) 122 CLR 649, at pp 660-661 as to the manner in which a jury should approach the assessment of damages do not express the doctrine accepted by this Court as to the duty of a judge sitting without a jury to assess damages. It is never wrong and often convenient for a judge to examine separately the various heads of damage and to show the amount that he allocates, tentatively or finally, to each head. The judge will of course remember the need to avoid inflating the total figure by adding up overlapping items, but any error of that kind is more likely to be revealed if he itemizes his award than if he does not. My views on this subject have recently been more fully stated in Sharman v. Evans (1977) 138 CLR 563, at pp 600 in a joint judgment with my brother Stephen, and in Gamser v. Nominal Defendant (1977) 136 CLR 145, at pp 147-148 , and I mention the matter again only because misconception on the subject appears to persist. (at p163)
3. The second question is whether the learned trial judge was justified in including in the award amounts in respect of the value of the services provided and to be provided for the respondent by his fiancee and by members of his family, when the respondent was not under any legal obligation to pay for those services. (at p163)
4. It is common in cases where a plaintiff has been injured for some member of his family, or a devoted friend, to perform for him services that have been rendered necessary by his injuries. Sometimes the relative or friend provides care of a kind that would otherwise have to be provided in a hospital or nursing home,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Griffiths v Kerkemeyer
Sign in free to access the full text
Details
AGLC
Griffiths v Kerkemeyer [1977] HCA 45
Case
[1977] HCA 45
Decision Date
CaseChat Overview and Summary
Griffiths v Kerkemeyer concerned a dispute between a plaintiff, Griffiths, and a defendant, Kerkemeyer, heard by the High Court of Australia. The plaintiff had suffered personal injuries and sought damages for the cost of gratuitous services provided by his wife. The core of the dispute revolved around whether the plaintiff could recover damages for the value of these services, which were provided without any legal obligation to pay.
The central legal issue before the High Court was whether the common law rule that a plaintiff cannot recover damages for gratuitous services rendered by a third party should be upheld or departed from. Specifically, the court had to determine if the plaintiff was entitled to compensation for the value of the nursing and domestic assistance provided by his wife, despite the absence of any contractual or legal obligation on his part to remunerate her for these services.
The High Court, in a joint judgment, departed from the established common law principle. Their Honours reasoned that the purpose of damages in tort is to compensate the plaintiff for their loss, and that the value of the services provided by the wife represented a real loss to the plaintiff, even if those services were gratuitous. The court held that the plaintiff's inability to pay for such services did not diminish the reality of his loss or the benefit he received. The legal principle applied was that the measure of damages should reflect the actual loss suffered by the plaintiff, and that the value of necessary services, regardless of their gratuitous nature, should be recoverable.
The High Court allowed the appeal, holding that the plaintiff was entitled to recover damages for the value of the gratuitous services provided by his wife.