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

Lawson

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

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…

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 Lawson v Jones

Details

AGLC: Lawson v Jones [1993] HCATrans 48
Case: [1993] HCATrans 48
Decision Date

CaseChat Overview and Summary

Beverley Clair Lawson applied to the High Court of Australia for special leave to appeal a decision of the Court of Appeal of Queensland. The dispute concerned damages awarded to the respondent, who had made a successful claim based on the principles of *Griffiths v Kerkemeyer*. The primary judge had awarded damages for past and future care, based on an occupational therapist's assessment of the hours required and the application of commercial rates to those hours. The Court of Appeal had refused to interfere with the economic loss components of the judgment but had interfered with the *Griffiths v Kerkemeyer* damages.

The legal issues before the High Court were whether the Court of Appeal had erred in its assessment of the *Griffiths v Kerkemeyer* damages, particularly in light of recent High Court authority. The applicant argued that the Court of Appeal's decision, which had followed *Veselinovic v Thorley*, was inconsistent with the High Court's subsequent ruling in *Van Gervan v Fenton*. Specifically, the applicant contended that the Court of Appeal had improperly interfered with the primary judge's assessment of damages, which had relied on commercial rates for care, and that this approach was contrary to the principles established in *Van Gervan v Fenton*.

The High Court was required to consider the principles governing the assessment of damages for gratuitous care, as established in *Griffiths v Kerkemeyer* and as clarified by *Van Gervan v Fenton*. The applicant argued that the Court of Appeal's judgment, by interfering with the primary judge's award based on commercial rates, had failed to apply the correct legal principles. The applicant submitted that the use of commercial rates was akin to "market value" and that the Court of Appeal's reasoning, which suggested an "uncritical acceptance of the accounts of the respondent and others," was an impermissible approach that flew in the face of *Van Gervan v Fenton*. The Court noted that the Court of Appeal's judgment was handed down shortly after *Van Gervan v Fenton* was decided, and that the Court of Appeal's attention had not been directed to the High Court's ruling.

Orders