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Potts v Frost

Potts v Frost

Case [2012] TASFC 6 19 December 2012

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[2012] TASFC 6

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Potts v Frost [2012] TASFC 6

PARTIES:  POTTS, Joshua Andrew
  v
  FROST, Darren Stephen Ian

FILE NO/S: 946/2011
JUDGMENT

APPEALED FROM: Potts v Frost [2011] TASSC 55

DELIVERED ON:  19 December 2012
DELIVERED AT:  Hobart
HEARING DATE:  7 – 9 May 2012
JUDGMENT OF:  Evans, Blow and Tennent JJ
CATCHWORDS:

Damages – Measure and remoteness of damages in actions for tort – Measure of damages – Personal injuries – Method of assessment – Voluntary obligations – Expenditure by relatives of plaintiff – Whether for "services of a domestic nature or services relating to nursing and attendance".
Common Law (Miscellaneous Actions) Act 1986 (Tas), s5.

Grimsey v Southern Regional Health Board (1997) 7 Tas R 67; Southern Regional Health Board v Grimsey (1998) 8 Tas R 116, followed.
Griffiths v Kerkemeyer (1977) 139 CLR 161; Van Gervan v Fenton (1992) 175 CLR 327, discussed.

Aust Dig Damages [34]
Damages – Measure and remoteness of damages in actions for tort – Measure of damages – Personal injuries – Loss of earnings and earning capacity – Legal principles – Method of calculation – Allowances for residual earning capacity and contingencies.

Paff v Speed (1961) 105 CLR 549; Bresatz v Przibilla (1962) 108 CLR 541; Atlas Tiles Ltd v Briers (1978) 144 CLR 202, referred to.
Aust Dig Damages [39]

REPRESENTATION:

Counsel:
             Appellant:  D J Gunson SC and C H Hobbs
             Respondent:  J Ruskin QC and K E Read SC
Solicitors:
             Appellant:  Ware & Partners
             Respondent:  Dobson Mitchell & Allport

Judgment Number: [2012] TASFC 6
Number of paragraphs: 141

Serial No 6/2012
File No 946/2011

JOSHUA ANDREW POTTS v DARREN STEPHEN IAN FROST

REASONS FOR JUDGMENT FULL COURT

EVANS J
BLOW J
TENNENT J
19 December 2012

Orders of the Court

Appeal dismissed.

Cross-appeal allowed.

Judgment varied by reducing the judgment sum from $1,840,335 to $1,698,298.

Serial No 6/2012
File No 946/2011

JOSHUA ANDREW POTTS v DARREN STEPHEN IAN FROST

REASONS FOR JUDGMENT FULL COURT

EVANS J
BLOW J
TENNENT J
19 December 2012

This appeal relates to a tragic motorcycle accident in January 2002. The appellant, Joshua Potts, was a pillion passenger on a motorcycle driven by the respondent, Darren Frost. They were friends. They and others were staying at a shack at White Beach. Late on the night of 8 January, they went for a ride together. The bike left the road and hit a tree. As a result, both the appellant and the respondent are now paraplegics. Neither of them has any memory of the accident or the events leading up to it. The appellant sued the respondent for damages for negligence. The case went to trial before Porter J. His Honour found that the respondent was the rider of the motorcycle, that he was negligent, and that there was contributory negligence on the part of the appellant in travelling on the motorcycle as a pillion passenger. He reduced the damages by 30% to…

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 Potts v Frost

Details

AGLC: Potts v Frost [2012] TASFC 6
Case: [2012] TASFC 6
Decision Date: 19 December 2012

CaseChat Overview and Summary

The case of *Potts v Frost* concerned an appeal and cross-appeal arising from a personal injury claim. The plaintiff, Mr. Potts, had suffered injuries and sought damages, including compensation for gratuitous services provided by his family. The defendant, Mr. Frost, contested the assessment of these damages. The matter was heard by Evans, Blow, and Tennent JJ in the Court of Appeal.

The central legal issue before the Court of Appeal was the recoverability of damages for gratuitous services provided by relatives of an injured plaintiff. Specifically, the court had to determine whether such services, which were of a domestic nature or related to nursing and attendance, fell within the scope of recoverable damages under the relevant legislation. This involved an interpretation of the principles governing the assessment of damages for personal injuries, particularly concerning voluntary assistance.

The Court of Appeal considered the established principles regarding the recovery of damages for gratuitous services, noting that such claims are generally permissible where the services are of a kind that would otherwise have to be paid for. The court analysed the nature of the services provided by Mr. Potts' family, distinguishing between those that were purely domestic and those that involved nursing and attendance. The court's reasoning focused on whether the expenditure, had it been incurred by the plaintiff, would have been reasonable and necessary. The appeal was dismissed, meaning the primary judgment was upheld in principle, but the cross-appeal was allowed, leading to a variation of the damages awarded.

Consequently, the judgment sum awarded to the plaintiff was reduced from $1,840,335 to $1,698,298.

Orders

Orders of the court

1. Appeal dismissed.

2. Cross-appeal allowed.

3. Judgment varied by reducing the judgment sum from $1,840,335 to $1,698,298.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Potts v Frost [2012] TASFC 6

Most Recent Citation

Mercer v Allianz Australia Insurance Limited (No 2) [2013] TASSC 35

Cases citing this decision · 7 of 7 shown

Liao v Cemcon Developments Pty Ltd
[2021] TASSC 37 Para 6

…unts to an error of law: Pettit v Dunkley [1971] 1 NSWLR 376 at 382; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259; Potts v Frost [2012] TASFC 6 at [28]. The duty to give reasons exists because, when there is a right of appeal to a higher court, the appellate court will need to know the basis…
Hendrex v Keating
[2016] TASSC 20 Para 4

…n respect of his need for the services that have been provided by his wife since the day of his accident. As the Full Court observed in Potts v Frost [2012] TASFC 6, 22 Tas R 103 at [52], s 5 of the Common Law (Miscellaneous Actions) Act 1986 did not abrogate the rules in Griffiths v Kerkemeyer , but had the effe…
Chu v Russell
[2016] TASFC 1 Para 2

…the subject of a ground of appeal or cross-appeal: Supreme Court Civil Procedure Act 1932, ss 47(1) and 49; Rendell v Paul (1979) 22 SASR 459 at 463; Potts v Frost (2012) 22 Tas R 103 at [132]-[136]. It is not necessary, for the purposes of this case, to decide whether there is such a power.…
Kronenberg v Bridge
[2014] TASFC 10 Para 4

…r his or her decisions: Pettitt v Dunkley [1971] 1 NSWLR 376 at 382; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259; Potts v Frost [2012] TASFC 6 at [28]. It follows that her Honour erred in law in failing to give reasons for her determination that the respondent was entitled to interest. The e…
BCD v Secretary, Department of Health and Human Services
[2014] TASSC 53 Para 2

…ount to an error of law: Pettit v Dunkley [1971] 1 NSWLR 376 at 382; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259; Potts v Frost [2012] TASFC 6 at [28]. The duty to give reasons exists because, when there is a right of appeal to a higher court, the appellate court will need to know the basis…
Mitchell v Marshall
[2014] TASSC 43 Para 1

…unts to an error of law: Pettit v Dunkley [1971] 1 NSWLR 376 at 382; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259; Potts v Frost [2012] TASFC 6 at [28]. The duty to give reasons exists because, when there is a right of appeal to a higher court, the appellate court will need to know the basis…
Mercer v Allianz Australia Insurance Limited (No 2)
[2013] TASSC 35 Para 1

…977) 139 CLR 161, the plaintiff is entitled to recover damages in respect of his need for those services. As the Full Court observed in Potts v Frost [2012] TASFC 6 at par[52], s5 of the Common Law (Miscellaneous Actions) Act 1986 did not abrogate the rules in Griffiths v Kerkemeyer , but had the effect of signif…

View all 7 citing cases →

Cases cited in this decision · 28 of 28 shown

Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship
[2013] HCA 53 Para 1

…It is clear that a failure by a judge to give reasons, or sufficient reasons, for a decision amounts to an appealable error: Pettitt v Dunkley [1971] 1 NSWLR 376 at 382; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259.…
Potts v Frost
[2011] TASSC 55 Para 1

…er. He reduced the damages by 30% to allow for contributory negligence and, taking into account that reduction, awarded him $1,840,335: Potts v Frost [2011] TASSC 55.…
Hill v Forrester
[2010] NSWCA 170 Para 1

…t that the service has been or is likely to be provided for more than six hours per week and for more than six consecutive months. ( Hill v Forrester (2010) 79 NSWLR 470 is an informative decision on the interpretation of a statutory provision in similar terms to s28B(2).)…
Tamarack Pty Ltd v Beswick
[2010] TASFC 5 Para 1

…[1977] Tas SR at 15; Les Walkden Enterprises Pty Ltd v Menzie [2001] TASSC 140 at par[45]; Direen v Coad [2005] TASSC 122; Tamarack Pty Ltd v Beswick [2010] TASFC 5 at par[46]. Section 45(1) limits the circumstances in which appeals from discretionary decisions can succeed. It reads as follows:…
Berowra Holdings Pty Ltd v Gordon
[2006] HCA 32 Para 1

…In so concluding we should say that we have reached our decision without any reliance on the approach espoused in Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 at par[23], where Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ said that:…
Lafranchi v Transport Accident Commission
[2006] VSCA 81 Para 1

…hed a conclusion to the effect that this was a case to which the principle could be applied. He referred to Lafranchi v Transport Accident Commission (2006) 14 VR 359, a decision of the Victorian Court of Appeal, as authority for the propositions that the principle can apply in a case where a vehicle ends up off th…
Direen v Coad
[2005] TASSC 122 Para 1

…ct 1932, s45(1), applies: McKinlay v Reading [1977] Tas SR at 15; Les Walkden Enterprises Pty Ltd v Menzie [2001] TASSC 140 at par[45]; Direen v Coad [2005] TASSC 122; Tamarack Pty Ltd v Beswick [2010] TASFC 5 at par[46]. Section 45(1) limits the circumstances in which appeals from discretionary decisions can succe…
CSR Ltd v Eddy
[2005] HCA 64 Para 1

…In CSR Ltd v Eddy (2005) 226 CLR 1 at par[27], Gleeson CJ, Gummow and Heydon JJ said that Griffiths v Kerkemeyer was anomalous in departing from the usual rule that damages, other than damages payable for loss not measurable in money, are not recoverable for an injury unless the injury produces actual financial los…
Les Walkden Enterprises Pty Ltd v Menzie
[2001] TASSC 140 Para 1

…o which the Supreme Court Civil Procedure Act 1932, s45(1), applies: McKinlay v Reading [1977] Tas SR at 15; Les Walkden Enterprises Pty Ltd v Menzie [2001] TASSC 140 at par[45]; Direen v Coad [2005] TASSC 122; Tamarack Pty Ltd v Beswick [2010] TASFC 5 at par[46]. Section 45(1) limits the circumstances in which app…
Brown v Falzari
[2001] TASSC 46 Para 1

…McGregor on Damages , 12 th ed, (1961) at pars764 – 766; Carter v Motor Accidents Insurance Board (unreported, 129/1998, Cox CJ); Brown v Falzari [2001] TASSC 46. In our view none of the authorities to which we were referred suggest that, when a judge makes allowances by reference to percentages in respect of both…
Grincelis v House
[2000] HCA 42 Para 1

…nursing care was the claimant's entitlement to be compensated for any loss of capacity that was caused by the accident. See also Grincelis v House (2000) 201 CLR 321 at 327.…
Grimsey v Southern Regional Health Board
[1999] HCATrans 399

…Grimsey v Southern Regional Health Board (1997) 7 Tas R 67; Southern Regional Health Board v Grimsey (1998) 8 Tas R 116, followed. Griffiths v Kerkemeyer (1977) 139 CLR 161; Van Gervan v Fenton (1992) 175 CLR 327, discussed.…
Murfet, Jane Carolyn v AAPC Australia Pty Ltd, Carrying on Business as Novotel Launceston
[1999] TASSC 6 Para 1

…the cross-appeal should succeed, Motor Accidents Insurance Board v Richards (1991) 14 Tas R 221, pars[7] to [17], and Murfet v AAPC Australia Pty Ltd [1999] TASSC 6, pars[20] and [42].…
Kars v Kars
[1996] HCA 37 Para 1

…er involved a departure from the decision in Blundell v Musgrave is to be found in the decision of Toohey, McHugh, Gummow and Kirby JJ in Kars v Kars (1996) 187 CLR 354 at 369. The other member of that court, Dawson J, at 358, also said the decision in Griffiths v Kerkemeyer departed from Blundell v Musgrave , and at…
Motor Accidents Insurance Board v Richards
[1991] TASSC 98 Para 1

…rences in the amount of these awards that make the total amount of the appellant's damages manifestly excessive that the cross-appeal should succeed, Motor Accidents Insurance Board v Richards (1991) 14 Tas R 221, pars[7] to [17], and Murfet v AAPC Australia Pty Ltd [1999] TASSC 6, pars[20] and [42].…
Podbrebersek v Australian Iron & Steel Pty Ltd
[1985] HCA 34 Para 1

…In Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 493 – 494, the High Court said in relation to the apportionment of damages in cases involving contributory negligence:…
Atlas Tiles Ltd v Briers
[1978] HCA 37 Para 1

…ppellant as to these grounds, Mr Hobbs referred us to quite a number of authorities: Paff v Speed (1961) 105 CLR 549 at 566; Atlas Tiles Ltd v Briers (1978) 144 CLR 202; Bresatz v Przibilla (1962) 108 CLR 541 at 544 – 545; Mayne and McGregor on Damages , 12 th ed, (1961) at pars764 – 766; Carter v Motor Accidents Ins…
Griffiths v Kerkemeyer
[1977] HCA 45

…sey v Southern Regional Health Board (1997) 7 Tas R 67; Southern Regional Health Board v Grimsey (1998) 8 Tas R 116, followed. Griffiths v Kerkemeyer (1977) 139 CLR 161; Van Gervan v Fenton (1992) 175 CLR 327, discussed.…
Sharman v Evans
[1977] HCA 8 Para 1

…the appellant were hospitalised, he would save money on food, and possibly on the cost of domestic assistance and attendant care. In Sharman v Evans (1977) 138 CLR 563 at 586, Gibbs and Stephen JJ held that it was appropriate to make a reduction of 12% of the hospital expenses incurred in that case in order to allow…
Teubner v Humble
[1963] HCA 11 Para 1

…For relevant purposes an injury attracts damages when it creates a need that would not otherwise exist. In Teubner v Humble (1962) 108 CLR 491 at 505, Windeyer J said:…
Bresatz v Przibilla
[1962] HCA 54 Para 1

…eferred us to quite a number of authorities: Paff v Speed (1961) 105 CLR 549 at 566; Atlas Tiles Ltd v Briers (1978) 144 CLR 202; Bresatz v Przibilla (1962) 108 CLR 541 at 544 – 545; Mayne and McGregor on Damages , 12 th ed, (1961) at pars764 – 766; Carter v Motor Accidents Insurance Board (unreported, 129/1998, Cox…
Wilson v McLeay
[1961] HCA 56 Para 1

…m for damages in respect of his mother's loss of wages whilst attending on him in Melbourne, that is, a claim for damages pursuant to Wilson v McLeay (1961) 106 CLR 523. At pars[150] to [154] of his decision, his Honour dealt with this claim and refused to allow it on the basis that it was excluded by the application…
Paff v Speed
[1961] HCA 14 Para 1

…In his submissions on behalf of the appellant as to these grounds, Mr Hobbs referred us to quite a number of authorities: Paff v Speed (1961) 105 CLR 549 at 566; Atlas Tiles Ltd v Briers (1978) 144 CLR 202; Bresatz v Przibilla (1962) 108 CLR 541 at 544 – 545; Mayne and McGregor on Damages , 12 th ed, (1961) at pars76…
Blundell v Musgrave
[1956] HCA 66 Para 1

…Blundell v Musgrave (1956) 96 CLR 73 was taken to be authority that in order to recover damages for that which had been provided to a claimant there had to be either a legal obligation, or at least a strong moral or social obligation on the claimant to pay for the same. See Dixon CJ at 79 and Fullagar J at 92. Ther…
Van Gervan v Fenton
[1992] HCA 54 Para 1

…that taken by Stephen and Mason JJ is of no consequence. It is however the approach of the latter two judges that is the law. In Van Gervan v Fenton (1992) 175 CLR 327, Mason CJ, Toohey and McHugh JJ addressed the decision in Griffiths v Kerkemeyer at 331 – 333. Their Honours noted that the view of Gibbs J was more…
[1974] 1 QB 454
[1974] 1 QB 454 Para 1

…The three members of the High Court who decided Griffiths v Kerkemeyer all had regard to the decision in Donnelly v Joyce [1974] 1 QB 454. That decision dealt with an appeal against an infant plaintiff's recovery of damages in respect of gratuitous services provided by her mother. At 461 – 462, Davies and Megaw LJ…
Soulemezis v Dudley (Holdings) Pty Ltd
(1987) 10 NSWLR 24 Para 1

…ailure by a judge to give reasons, or sufficient reasons, for a decision amounts to an appealable error: Pettitt v Dunkley [1971] 1 NSWLR 376 at 382; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259.…
Podrebersek v Australian Iron & Steel Pty Ltd
(1985) 59 ALR 529 Para 1

…In Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 493 – 494, the High Court said in relation to the apportionment of damages in cases involving contributory negligence:…

Legislation cited in this decision · 6

Common Law (Miscellaneous Actions) Act 1986 (Repealed) (TAS)
5 2 mentions (from Para 1)
Civil Liability Act 2002 (TAS)
1 mention (from Para 1)
Civil Liability Amendment Act 2005 (TAS)
1 mention (from Para 1)
Motor Accidents (Liabilities and Compensation) Act 1973 (TAS)
1 mention
Supreme Court Civil Procedure Act 1932 (TAS)
45(1) 1 mention (from Para 1)
Wrongs Act 1954 (TAS)
4(1) 1 mention (from Para 1)