Lawson v Jones

[1993] HCATrans 48

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B60 of 1992

B e t w e e n -

BEVERLEY CLAIR LAWSON

Applicant

and

ALAN PATRICK JONES

Respondent

Application for special leave

to appeal

BRENNAN ACJ
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 MARCH 1993, AT 11.04 AM

Copyright in the High Court of Australia

Lawson 1 5/3/93

MR R.R. DOUGLAS, QC: If the Court pleases, I appear with my

learned friend, MR S.G. DURWARD, for the applicant.

(instructed by Dempseys)

MR P.J. LYONS, QC:  May it please the Court, I appear with

my learned friend, MR S.D.J. JENSEN, for the

respondent. (instructed by Mcinnes Wilson &

Jensen)

BRENNAN ACJ: Yes, Mr Douglas?

MR DOUGLAS:	Your Honours, this application involves a brief short point. There was an appeal in the Court of
Appeal of Queensland from a judgment of
Mr Justice Kneipp in Townsville, where a Griffiths v Kerkemeyer claim was made and was successful. As
appears from the judgment of His Honour the primary
judge at page 13 of the record, the claim was based
upon two bases: first, an assessment of hours
needed for care by the plaintiff and, secondly, the
application of the rate of charge to those hours.
His Honour at page 13 of the record accepted the
evidence of Mrs Coles, an occupational therapist,
at line 30:

in general as to what is the care which the

plaintiff requires, although I feel that the

estimates are generous ..... The claims, which

are large, are based on those estimates and on

commercial rates.

His Honour then went on to make awards for past and future Griffiths v Kerkemeyer type damages.

The Court of Appeal was asked to interfere

with that part of the judgment as well as the part

of the judgment which dealt with economic loss,

both past and future.	It refused to interfere with
the judgment on economic loss, past and future, but

it did interfere with the Griffiths v Kerkemeyer

claim following Veselinovic v Thorley, which case

had been overruled by this Court in Van Gervan v

Fenton some two weeks prior to judgment being

delivered.

I should tell you the history of the matter.

The matter was argued before the judgment in Van

Gervan v Fenton. Van Gervan v Fenton was handed down on 28 October last year, and this judgment was handed down on 13 November last year.

BRENNAN ACJ:  Was the court's attention directed to Van

Gervan v Fenton, Mr Douglas?

MR DOUGLAS:  I was not in the case, but I am instructed not,

Your Honour.

Lawson 2 5/3/93

BRENNAN ACJ:	A bit unfortunate, perhaps.
MR DOUGLAS:	It is unfortunate. Your Honours, can I take

you to where that is plain, as briefly as I can.

Beginning at page 23 of the record, Their Honours

deal with both Veselinovic v Thorley and Carrick v

Commonwealth of Australia, and adopt what is said

in those cases, particularly at the bottom of

page 23, the fourth last line:

The damages must be proportionate to the injury and the cases make reference to the

"reasonable costs" of satisfying the need as

distinct from the actual or maximum possible

costs -

and then over the page, deal with the particular

case. Their Honours said, in a joint judgment, at

line 20 on page 24, repeating the passage I read

out in the primary judge's judgment earlier:

He then accepted calculations based on the

direct application of commercial rates for

various levels of care to the times derived by
the occupational therapist. This is an

unfortunate, if not impermissible, approach.

With respect, Your Honours, that flies into the

face of Van Gervan v Fenton.

The opinion of the occupational therapist was

necessarily based on assumption and on the

uncritical acceptance of the accounts of the

respondent and others. It is no substitute

for an evaluation of the evidence to determine
the amount and level of care necessary to
satisfy the respondent's needs and the

appropriate damages in the light of the

Those principles are the principles in Veselinovic principles previously mentioned.	v Thorley and Carrick v Commonwealth of Australia,
which have been overruled by this Court.

There are two matters, Your Honours. Plainly

they are talking of two things: the estimate of hours is one thing; the estimate of the cost of

those hours is another. We submit that commercial

rates, as used in this judgment and by His Honour

the trial judge, are akin to the phrase "market

value" which is used in Van Gervan v Fenton. Then

Their Honours go on, on page 25, making it plain what they have done at line 13:

Neither the hours claimed nor the rates

applied to them -

Lawson 3 5/3/93

read "commercial rates" -

appear sustainable as evidencing the

respondent's needs in consequence of the

appellant's negligence, or the extent to which

they are productive of financial loss.

Your Honours, we say two things: that the

Court of Appeal was wrong in following Veselinovic

v Thorley and Carrick. Now, Their Honours,

unfortunately, were not referred to Van Gervan, but

that does not gainsay the statement that they

decided this case, on that point alone, per

incuriam.

As to the other - and this is the point made

by the affidavit of Mr Mcinnes for our opponents -

as to the hours which may not be needed,

Their Honours interfered with that although the

primary judge had substantially discounted himself

the number of hours which were said to be required.

The claim made was one for 400,000 in the future,

he discounted that to 250.

Your Honours, we submit, as to that second

point, that the court was not entitled to interfere

with His Honour's assessment of the number of hours

needed on the usual principles, Your Honour; that

there was evidence there to support that finding of

His Honour, and that the court was not entitled to

substitute its own view as to that. However, at

the very least, Your Honours, this matter should be

granted special leave and the matter remitted back

to the Court of Appeal, at least to determine

damages in accordance with the statements in

Van Gervan's case, (a), with relation to the rates

to be applied and (b), we also submit, with

respect, to the hours. Or, Your Honours, an appeal

could be heard in full by a Full Bench of this

Court which perhaps is a more costly remedy.

Your Honours, we submit that it is clear, at least

on the question of the rates to be applied, that

the matter should go back. That would be the

result if the Court heard and determined the matter

in full. We submit that the bench sitting today

has the power to do so itself, if it so wishes.

MCHUGH J: But how do we know that the Court of Appeal did

not determine that the plaintiff's needs were much

less than alleged and then applied the lowest

commercial rate in determining the value of those

needs as assessed by the Court of Appeal?

MR DOUGLAS:  We do not know that, but we know that what they

said was, "It is inappropriate to apply commercial

rates".

Lawson 4 5/3/93

McHUGH J:  I am not sure that that is the correct reading in

that passage on page 24, Mr Douglas.	When
Their Honours said:

This is an unfortunate, if not impermissible, approach.

It may be that what they meant by that remark is what follows, namely, that:

The opinion of the ..... therapist was

necessarily based on assumption and on the
uncritical acceptance of the accounts of the

respondent and others.

And that it was:

no substitute for an evaluation of the

evidence.

MR DOUGLAS:  Your Honour, when you read those pages

carefully I would disagree with you. They are

dealing with two matters there. Perhaps I should

put our point of view again. They say - - -

BRENNAN ACJ:  You can put whatever submission you think

appropriate, Mr Douglas.

MR DOUGLAS:  Sorry, Your Honours. We submit, Your Honour,

that what is meant there - they are dealing with

two quite distinct matters: one is the rate to be

applied, and the second is the number of hours

which are to be multiplied by that rate, if you

like. And it is clear when you read the passage

beginning at line 20:

He then accepted calculations based on the

direct application of commercial rates for

various levels of care to the times derived by

the occupational therapist. This is an

unfortunate, if not impermissible, approach.

We submit that means that the application of

commercial rates to the hours found by the

occupational therapist is impermissible, that is,

you must not apply commercial rates to the number

of hours found.

McHUGH J: Yes, but when the court was specifically dealing

with the question of past care, at page 28, they

took the table supplied by counsel for the present

respondent which was based on commercial rates and

which worked out at a figure of 46,000, but then

the court said, "That figure has to be reduced",

and arrived at a figure of $20,000. That seems to

indicate that the court thought that you could use

the lowest of the agency rates, but by reason of

Lawson 5/3/93

the fact that they thought the evidence did not

establish need as alleged, that the figure had to

be reduced.

MR DOUGLAS:	Your Honour, that, with respect, seems to fly Their Honours that Veselinovic was the correct law.	into the face of the statement made earlier by that. Veselinovic spoke of reasonable costs
following Carrick and it is that position of the
judgments in Veselinovic which was expressly
overruled in Van Gervan. You see, when you go
back, Your Honours, to page 27 of the record there
is again a reference to Veselinovic at the bottom
at line 41:

It is for this reason, rather than because of the degree of relationship (as the trial judge

seemed to think), that the provision of

services in a domestic environment operates to

discount commercial rates; see Veselinovic -

That, perhaps, is the reasoning behind what

was in fact done on the next page.

BRENNAN ACJ: There might not be much wrong with that

reasoning.

MR DOUGLAS:  To discount commercial rates, Your Honour?

BRENNAN ACJ: Because you have got a number of people being

fed from the same stove.

MR DOUGLAS:  Yes, Your Honour, that is quite right.

McHUGH J: That was the very illustration the Court of

Appeal gave before that statement referring to

Veselinovic.

MR DOUGLAS: That is so. But, Your Honours, there is

nothing in the evidence in this case which suggests

that for the level of care which His Honour

eventually found - that is, the primary judge - commercial rates or market values should not be applied.

McHUGH J:  I would have thought that the passage that gives

you stronger support is one to which you have not

referred and that is on page 23, starting at

line 18:

It is a case where the cost of outside help

may "afford a touchstone" in evaluating damage

under the heads being considered although the

artificiality of that approach may have been a

good ground for discounting it - - -

Lawson 6 5/3/93

MR DOUGLAS:  I thought I did refer to that, Your Honour,

earlier but not read it out. Your Honour, we

submit that Their Honours below, with respect, have

applied the judgment in Veselinovic which has now

been overruled, and in doing so have come to a

wrong conclusion. It should be sent back to them,

Your Honours, to determine the matter in accordance

with the law in Van Gervan, so that there is no

doubt about what they really intended.

BRENNAN ACJ:  Do I take it from your submission, Mr Douglas,

that if special leave were granted in this matter

today, you would seek an order that the appeal be
heard instanter, appeal allowed and the matter

omitted?

MR DOUGLAS:	Yes, Your Honour.
BRENNAN ACJ:	Then I take it you have no further material

that you would wish to place before this Court on

the appeal?

MR DOUGLAS:  The only other matter could be the transcript,

eventually, but we do not suggest that by reading

both His Honour's judgment and the Full Court's

judgment you do not get a fair view of the

evidence.

McHUGH J: Could I just ask you two things, Mr Douglas.

Page 24 at line 49 where Their Honours say:

No basis has been shown for allowing that component in this case -

does "that component" refer to personal care or

only the hour for companionship?

MR DOUGLAS:  Your Honour, we submit it means only the hour

for companionship.

McHUGH J:  And then further on on that page where

Their Honours say:

evidence of the commercial rates in terms of
categories of home help, an enrolled nurse or

assistant nurse, and a registered nurse. Of

these the former is the lowest rate, with
progressively increasing rates, the latter is

the higher.

Were there three categories of rates, that is,

rates for home help, for an enrolled nurse or

assistant nurse, and a registered nurse?

MR DOUGLAS:  Yes, Your Honour. The three were: home help,

one; enrolled nurse or assistant nurse, two; and

registered nurse, three.

Lawson	5/3/93
McHUGH J:	Then what do Their Honours mean on page 25,

line 2, when they say, "These two rates were

applied"?

MR DOUGLAS:  Our submission is they mean home help, the

first rate and registered nurse, the third rate.

Their English, with respect, is bad. They should

have said, if they meant the third of those

categories, "the last is the higher" rather than

"the latter". Your Honours, we submit they mean,

as we read it, the rates for home help and

registered nurse. They are our submissions.

BRENNAN ACJ: Yes, Mr Lyons?

MR LYONS:	Your Honours, in our submission, the judgment did not turn on a decision that commercial rates were
inappropriate for assessing the quantum of damages
on this topic, but rather on the selection of the
appropriate rate to be used as a starting point for the calculation of damages under this head.
Your Honours have already been to the passages on
which we rely for that proposition. Perhaps we
would submit it has made it clearest by the passage which has been referred to most recently at the bottom of page 24 and over on to page 25, because
it is the discussion about the rates applied which
precedes the statement at page 25, line 12, that:

Neither the hours claimed nor the rates

applied to them appear sustainable -

If that is correct, we would submit therefore that

the approach taken - - -

BRENNAN ACJ: But if you continue that sentence, you come to

a passage which might present you with some

difficulty:

sustainable as evidencing the respondent's

needs in consequence of the appellant's

negligence -

so far, so good -

or the extent to which they are productive of

financial loss.

Is that not what presents you with a difficulty?

MR LYONS:  Your Honour, if one says it is necessary to show

that financial loss has in fact been produced

before an award can be made and if that proposition

had been applied, we would face difficulty.

BRENNAN ACJ: Well, if you go back to page 23 at line 42, do

you not see that proposition being applied?

Lawson 8 5/3/93

MR LYONS:  Your Honour, we would submit one sees the

proposition is stated, but -

McHUGH J: Well it is said that it is established and there

is a direct reference to the judgment of

Chief Justice Gibbs in Griffiths which was rejected

in Van Gervan.

MR LYONS:  Yes, that is so, but when the court came to make

its decision in this appeal, they did not reduce the judgment on the basis that there had been no

economic loss. Rather, they reduced the award

principally because the rate selected had been

inappropriate; it was a rate applicable to a level

of qualification which was greater than needed.

BRENNAN ACJ:  The difficulty with that proposition,

Mr Lyons, is that the words used by Their Honours at page 28 is, "All matters considered", which one

would naturally think in its context that the

consideration went to the question of whether the

need had been productive of financial loss. Now,

if that matter was considered, the case went off on

a wrong basis.

McHUGH J: Another difficulty is that the precise basis upon

which the Court of Appeal arrived at the sums of
$20,000 and $85,000 does not appear; no findings

were made as to the precise extent of the

appellant's need for care, either in the period

before trial or for the future.

MR LYONS:  Your Honour is correct about that.

McHUGH J: And it is not easy to find some consistency

between the two figures of $20,000 and the figure

of $85,000. The $20,000 was for a period of three

and a half years, which is something close to

$6,000 a year; the $85,000 was for a period of
34 years into the future.	One cannot help but feel

that the court has just arrived at some general

figure, made some general assessment, rather than

attempted to work out the precise estimated needs

and apply a market figure to it.

MR LYONS:  The future assessment is affected by a factor

which does not affect the past assessment, as

Your Honours will have noted, and that is the

prospect of recovery of the left arm. One would

therefore not expect it to be consistent with the

assessment for the past.

McHUGH J: But is there another passage that also tells

against you, and that is towards the end of the

judgment at page 60, where the court said that:

Lawson 9 5/3/93

there is an additional post-accident component
in that the respondent's mother may be unable
to continue to provide the support she was

providing at the time of the trial.

Does that not seem to indicate that the court

thought that they could disregard market figures,
market rates, while the mother was providing

support?

MR LYONS:	Your Honour, it says that, and at least to the extent - - -
McHUGH J:	I am sorry; it is page 29, that is.
MR LYONS:	- - - if it were shown that the court had, to a

significant degree, discounted because it was the

mother providing the service and therefore had not

applied the market rates, Your Honour would be

correct. But what appears, in our submission, from

the analysis of past loss, is that applying the

appropriate rate without any reduction of the

hours, $46,000 would have been an appropriate

award, but in addition to that there was

significant reasons to reduce the hours, not simply

the period of 12 to 18 months, to which I think

Your Honour Justice McHugh has referred, but other

evidence that was also mentioned in the judgment of the Court of Appeal, the medical evidence and other

evidence of Miss O'Shea. Your Honour is correct,

nevertheless, to say that it is not possible to

identify in detail the calculations which have led

to the award.

McHUGH J: Certainly the Court of Appeal seems to have held that neither the medical evidence nor the evidence of Miss O'Shea or the mother, really, supported the

applicant's case so far as needs were concerned.

MR LYONS:  That is so. We submit that the approach

generally which has been taken in the Court of

Appeal's decision is consistent with the principle

in Van Gervan's case, although it may be that if

all of the details were identified there might be

some error in respect of a discounting, but that is

not clearly established and the extent of it does

not seem to be great.

BRENNAN ACJ:  Mr Lyons, if we were satisfied that on a

reading of this judgment it appears that

Their Honours, in ignorance of Van Gervan,

proceeded to assess damages and the assessment was

affected by an error of principle, contrary to your

submission, what course should we take?

MR LYONS:  Your Honours, the question I assume really asks whether Your Honours should immediately send it

Lawson 10 5/3/93

back for further consideration or whether this

Court should deal with it in full and I have to say

that I have not considered the matter until this

morning; that was not a question that occurred to

me. If Your Honours were of the mind that it is

clear that there is an error, there is much to be

said for the view that the Court of Appeal should be given the opportunity to reconsider the matter.

BRENNAN ACJ: Yes. Is there anything further, Mr Lyons?

MR LYONS:	No, thank you, Your Honour.
BRENNAN ACJ:	Mr Douglas, we need not trouble you in reply,

but the Court will adjourn briefly in order to

consider the course which it will take in this

matter .

MR DOUGLAS: If the Court pleases.

. AT 11 . 2 7 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.29 AM:

BRENNAN ACJ:  The judgment of the Court of Appeal in this

case was delivered without Their Honours' attention

being drawn to the judgment of this Court in

Van Gervan v Fenton, (1992) 66 ALJR 828.

Their Honours approached the assessment of damages in respect of the plaintiff's need of care on the footing that damages are awarded only if the need

is or may be productive of financial loss. That is

the proposition that was rejected by a majority of

this Court in Van Gervan. It is necessary to grant

special leave to appeal and to allow the appeal on

that footing.

The judgment of the Court of Appeal does not

set out the facts found by that court, nor the

facts found by Mr Justice Kneipp and affirmed by

the Court of Appeal on which that court made its

own assessment of damages in respect of the

plaintiff's need for care. The case must therefore

go back to the Court of Appeal for further hearing

and determination according to law.

The order of the Court is that special leave

be granted, that the appeal be allowed, that the

judgment of the Court of Appeal be set aside and

that the matter be remitted to the Court of Appeal

to hear and determine the appeal according to law.

Lawson 11 5/3/93

MR DOUGLAS:	I ask for costs of the application and the appeal, if the Court pleases.
BRENNAN ACJ:	What do you have to say to that, Mr Lyons?

MR LYONS: Nothing, Your Honour.

BRENNAN ACJ: Those orders will be made with costs.

AT 11.31 AM THE MATTER WAS ADJOURNED SINE DIE

Lawson 12 5/3/93