AT CANBERRA ON WEDNESDAY, 27 MAY 1992, AT 10.20 AM
Copyright in the High Court of Australia
MR W.A. AYLIFFE:
May it please the Court, I appear with my
learned friend, MR R.A.S. BAKER, for the appellant.
(instructed by Baker Tierney & Wilson)
MR K.A.M. PITT, OC:
May it please the Court, I appear with
my learned friend, MR C.G. WOODHOUSE, on behalf of
the respondent. (instructed by C.G. Woodhouse)
MASON CJ: Yes, Mr Ayliffe?
MR AYLIFFE:
If the Court pleases, we contend that the question to be determined in this appeal is the
correct basis to measure in damages the appellant's need for constant nursing care which had hitherto to the time of trial, and was adjudged to be for a
further 7.5 years from judgment, likely to be
fulfilled gratuitously by the appellant's wife.
Your Honours, there has been no dispute that such a
need is compensable.
The point for determination,
we contend, is how to value or cost such constant care.
Your Honours, if I might, at this point,
briefly refer to the trial judge's more important
findings so that my submissions might be more fully
appreciated. If I could take Your Honours, please,
to the appeal book, volume 2, page 40, where the
decision of the trial judge is set out. At
page 40, the learned trial judge, Mr Justic'e Cox,
recites, "The plaintiff was born in Holland in
1925".
He was, therefore, 65 at the time of trial
or certainly by the time of judgment. His wife,
the provider, was 10 years younger than he was.
At page 41, in the middle paragraph,
His Honour sets out findings as to the style of life enjoyed by the appellant prior to the motor
vehicle accident.
He states:
In his leisure pursuits, the plaintiff
was a keen photographer, kept and showed Boxer
dogs, played lawn bowls regularly and effected a large number of improvements and renovations
to his home using a variety of power
tools ..... improving his woodworking skills
with night school ..... a keen gardener and
enjoyed outdoor activities including camping
and fishing.
He read magazines and novels and
he and his wife attended popular music
concerts and -
he and his wife regularly visited the Hobart
Casino.
McHUGH J:
I am not following this.
What has this got to do
with the issues in the appeal?
Van Gervan(2)
2
27/5/92
MR AYLIFFE: These are just some of the facts, Your Honour,
which are relevant to the question of the measure of compensation that should be applied. I do not
stay or place any great weight on them,
Your Honour, but they are relevant by way of
background. At page 53…
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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AGLC
Van Gervan v Fenton [1992] HCATrans 158
Case
[1992] HCATrans 158
Decision Date
CaseChat Overview and Summary
This case, heard in the High Court of Australia, concerned an appeal by Mr Van Gervan against a decision regarding the assessment of damages. The dispute centred on the correct method for calculating the compensation awarded for the appellant's need for constant nursing care. This need was expected to continue for 7.5 years from the date of judgment and had, up to the trial, been provided gratuitously by the appellant's wife. While the compensability of this need was not in dispute, the core issue was how to quantify or value this ongoing care.
The legal issues before the High Court were primarily concerned with the measure of damages for gratuitous nursing care. Specifically, the Court was required to determine whether the trial judge's method of valuing this care was appropriate. The trial judge had found that the appellant, aged 65 at the time of judgment, had suffered a serious mental health injury following a motor vehicle accident, rendering him incapable of gainful employment and entirely reliant on his wife. His wife, who was ten years younger, provided this care. The trial judge also found that the appellant would likely require annual hospital or clinic admissions for approximately 14 days to allow his wife respite, and that this need might increase over time.
The High Court considered the trial judge's assessment of damages, which was ultimately endorsed by the Full Court. The trial judge had valued the gratuitous nursing care at $15,000 net per annum, based on the wife's earnings as a nursing aide in the year ending 30 June 1985. The appellant's counsel argued that this was the correct basis for measuring the damages. The case transcript indicates that the appellant's counsel was presenting submissions on the measure of damages, referencing the trial judge's findings regarding the appellant's pre-accident lifestyle and post-accident condition, including his reliance on his wife and medication. The specific legal principles applied by the High Court in determining the correctness of the damages measure are not fully detailed in this excerpt, but the focus was on the valuation of gratuitous services.