Lawson v Jones

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.