The Nominal Defendant v Lloyd, D.B - [1985] FCA 118

CATCHWORDS

Measure of damages - infaht sustaming injuries by negligence

of appellant which rendered hlm incapable

arranqinq for

necessary treatment and accommodation

- such servlces rendered

by hospital where fees at

a higher level than

fees charged by

nursirlq homes for equivalent servlces - llability of Infant to pay hospital fees - extent of llability of necrligent party - reasonableness of in ant remaining hospital - reasonableness of amount charged for services rendered.

THE

N O M I N A L DEFENDANT

DhMIEN BARRY LLOYD

(by his

friend) PhTRICIP. MhRY LLOYD

No. NTG 7 of 1984

Smithers, Northrop and McGregor

JJ.

\	2 April 1985
Melbourne.

-	IN THE FEDERAL COURT OF AUSTRALIA	)
)

NORTHERN TERRITORY DISTRICT REGISTRY )

NO. NTG 7 OF 19R4

)

GENERAL DIVISION

)

ON APPEAL

FROM THE SUFREME

CQURT 0-F THE NORTHIRN

TERRITORY OF .AUSTRALIA

Between:

THE NOMINAL

DEFENDANT

(Appellant)

m: DAMIEN BPARY LLOYD

(bv hls next

friend) PATRICIA

MARY LLOYD

(Respondent)

Judqes Makinq Order:	Smlthers, Northrop and McGregor JJ.
__	Date of Order:	2 April 1985

Where Made:

Melbourne.

MINUTE OF ORDER OF THE COURT

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2 . The appellant pay the respondents cost of and incldental to the appeal.

(Settlement and entry of the Orders is dealt with by 0.36 of

the Federal Court Rules.)

IN THE FEDERAL COURT OF AUSTRALIA

) )

NORTHERN TERRITORY DISTRICT REGISTRY )

NO. NTG 7 OF 1984

)

GENERAL DIVISION

)

ON APPEAL

FROM THE SUPREME

COURT OF THE NORTHERN

TERRITORY OF AUSTRALIA

Between:	THE NOMINAL
DEFENDANT

(Appellant)

DAMIEN BARRY LLOYD

(by his

friend) PATRICIA

M Y

LLOYD

(Respondent)

CORAM: Smithers, Northrop and McGregor

JJ.

Date:

2 April 1985

REASONS FOR JUDGMENT

Smithers

and

Northrop JJ.: In this

matter

we take

the

liberty of referring

to the relevant facts set out in the

reasons for judgment

herein of our brother McGregor. However,

the ultimate conclusion at which we have arrived differs from

that reached considerations set forth below.

him. We have been influenced

the

In our view the principle by reference to

which, in this

case, damages should be measured is that stated by Megaw L.J. in Donnellv v. Jovce C197411 QB 454. In that case an infant

recovered the value

of nursing services provided by

his mother

who gave

her

employment

care for him. The Court

rejected the argument that In the absence of a legal llabllity to pay, the reimbursement sought was relmbursement of another person's loss. Megaw L.J. who delivered the ~udgment of the Court said:-

"The loss is the plaintiff's

loss.

The question

from what source the plaintiff's needs

have been

met, the question who has paid the

money or given

the services,

the question whether

or not the

plaintiff is or is not under a legal or moral llabllity to repay, are, so far as the defendant and his llability are concerned, all irrelevant.

The plaintiff's

loss, to take thls…

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.

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Details

Case: [1985] FCA 118
Decision Date: 2 Apr 1985

CaseChat Overview and Summary

The Nominal Defendant appealed against the assessment of damages in a case brought by Damien Barry Lloyd, an infant, against the Nominal Defendant. The infant sustained injuries by negligence of the Nominal Defendant, which rendered him incapable of arranging for necessary treatment and accommodation. The treatment and accommodation were provided by the Adelaide Children's Hospital at a higher fee than those charged by nursing homes for equivalent services. The infant's liability to pay the hospital fees and the extent of the negligent party's liability were the main issues. The court had to determine the reasonableness of the infant remaining in the hospital and the amount charged for the services rendered.

The court held that the principle by which damages should be measured is that the plaintiff's loss is the existence of the need for services, the value of which is the proper and reasonable cost of supplying those needs. The court found that it was reasonable for the hospital to continue rendering services to the infant and that the charges made by the hospital were reasonable. However, the court held that the appropriate rate to be adopted in calculating damages was the rate ordinarily and reasonably charged for nursing care treatment, which was materially less than the charge made. The court substituted a figure of $124,000 for $408,890, and the judgment was entered for the plaintiff for a total sum of $743,191. The plaintiff was to pay the defendant's costs.

Orders