Van Gervan v Fenton

Case [1992] HCATrans 158


•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No H4 of 1991

B e t w e e n -

LAMBERTUS VAN GERVAN

Appellant

and

ANDREW ARTHUR FENTON

Respondent

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON J

MCHUGH J

Van Gervan(2) 1 27/5/92

TRANSCRIPT OF PROCEEDINGS

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…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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