Van Gervan v Fenton

[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 in the first paragraph,

His Honour found that:

The plaintiff has suffered a serious

injury to his mental health and his enjoyment

of life.

His Honour describes how he had turned:

From a jocular, active person -

to -

a depressed and emotionally labile person

incapable of engaging in gainful

employment ..... totally reliant upon his wife

and the few very loyal friends who live close

to him. He has the misfortune to have insight

into the deterioration in his

condition ..... His condition has stabilized on

a regime of heavy medication -

At page 56 there is an important finding of fact, I

submit.	The learned trial judge states, at about
line 15:

I accept that the plaintiff would probably

need annual admissions to a hospital, clinic
or hostel for approximately 14 days to enable

his wife to have some respite, to assess his

condition and to monitor his medication.

Line 30:

As time goes on, the length or frequency of

respite needs might well increase.

Page 57, line 1, His Honour finds that the

appellant:

takes large quantities of drugs, presently

some 13 tablets per day -

The measure that was ultimately used by the learned trial judged and endorsed by the Full Court

is set forth at line 15: a measure of $15,000 net,

that being the earnings of the wife in her

employment:

as a nursing aide at the Huon District

Hospital ..... in the year ending 30 June 1985 -

Van Gervan(2) 27/5/92

some five years prior to the date of trial or

thereabouts.

It is at pages 19, 20 and 21 that the crucial

findings are set forth so far as this appeal is

concerned.	Page 19, line 10, His Honour recites
that the:

agreed fact that the rates currently charged

by an Agency -

which in the agreed facts was the Bay Domestic and

Nursing Agency - - -

McHUGH J: It is page 58 of the appeal book.

MR AYLIFFE:  Page 58 of the appeal book, Your Honour, I

apologize:

which supplied home nursing care by a

non-medically trained person is $40.00 per day

wages with a 20% loading in lieu of annual

leave, sick leave and public holidays, with

time and a half rates for Saturday and double
time on Sunday, together with an annual

workers' compensation premium of $50.00. There follows His Honour's central finding, "that

the plaintiff is in need of constant care".	He
states:

He is able to visit a nearby friend for a few

hours each day, but there is a need for his

wife to be present in the home, if not every

hour of the day, certainly for a very large

part of it.

And he then sets forth the particulars which I do

not stay to simply read out to Your Honours, but I

I do submit they are important and at page 20,

line 5, he makes an important finding that those
"particulars are substantially made out".	He finds
then:

It is no longer practicable for his wife

to undertake outside employment -

and at page 20 he makes the central finding, in our

submission, so far as future care is concerned. He

finds, line 20, page 59:

As to the future, the plaintiff will

continue to need the same level of assistance.

While his wife is able to provide it, she

should be furnished with a sum no less that

that which she would have received had she

continued to work -

Van Gervan(2) 4 27/5/92

and His Honour there reverts to $15,000 per annual

being the 1985 net wage as a nursing aide achieved

by the wife. He finds that:

should she die or be unable to look after the

plaintiff, the proper measure of damages, in

my view, would be the cost of providing the

kind of care such an institution as the

Woodhouse Centre offers -

which, His Honour found, after allowing for

respite, to be $347.00 per week as compared to $277

per week, being the net weekly wage derived by the

wife from her employment in 1985 as a nurse's aide.

TOOHEY J: At that point, Mr Ayliffe, the trial judge has

shifted from the Woodhouse Centre as a temporary

relief to the Woodhouse Centre as a total

replacement for the care which the appellant's wife

had provided?

MR AYLIFFE: Yes, Your Honour, and an analysis of the

findings of His Honour indicates that he found the

average between two scenarios: scenario one, that

the wife would look after him on a constant basis
for five years and he would spend his balance eight

years of his life expectancy at the Woodhouse

Centre; scenario two, his wife would look after him

for 10 years and he would spend the balance of his

life expectancy of three years at the Woodhouse

Centre. The cumulative result of His Honour's

findings is that his wife would look after him for

7.5 years, that is the mean between the two

scenarios that His Honour set forth at page 60 of

the appeal book, page 21 of his judgment. I should

say that the agreed facts, relating to the rate of

charge by the Bay Domestic and Nursing Agency,

establish a weekly rate of $549.00.

There is no argument as to the findings of the

learned trial judge. As I understand it there is

either.

no attack on those findings by the respondent

Your Honours, in summary, it is my submission

that the consequences of this accident have been

for the plaintiff devastating. He has been changed

from a man with a full and complete life to a

permanent invalid with a serious mental injury,

totally dependent on his wife and in need of

constant nursing care.

Your Honours, it is our submission that the

learned trial judge and the Full Court have erred
in law and in principle in holding that the need of
the appellant for constant nursing care should be

assessed on the basis of an actual pecuniary loss

Van Gervan(2) 27/5/92

sustained by the provider of the services. In our

submission, this need should have been compensated

on the standard or market rate for such services.

We submit that is a general rule of law. And even

if we are wrong on that, I submit to the contrary,

even if there is no general rule or that measure is

not to be generally applied, it is our submission

that on the facts of this case the market rate, as

supplied by the Bay and Domestic Nursing Agency,

was the appropriate rate for the circumstances of

this case.

TOOHEY J: Appropriate rate for how long, Mr Ayliffe?

MR AYLIFFE: For the 7.5 years, Your Honour. There is no

attack as to any other part of the decision of

either the trial judge or the Full Court.

TOOHEY J: Thank you.

MR AYLIFFE:  In short, therefore, we contend that the courts

below have erred by adopting an approach based not

on the value of the need of the plaintiff, but

rather on an actual pecuniary loss sustained by the

provider who is a stranger to the proceedings.	We
submit that the Full Court erred further, with

respect, in supporting that approach of the trial

judge by adopting and approving that as the

relevant measure, that is to say, the actual

pecuniary loss sustained by the wife based on her

1985 earnings. But we submit that the Full Court

has further erred by enforcing that result by

concepts of mitigation of loss by the provider as

opposed to the plaintiff, and a concept that if the

need of the appellant is filled as a result of a

familial duty, then so much of that need so

fulfilled should go to the diminution of the

plaintiff's damages and to the ultimate benefit of

the tortfeasor.

It is our ultimate submission, Your Honours,

that the concepts of actual pecuniary loss

sustained by the provider, concepts of familial
duty and concepts of mitigation of loss not by the

plaintiff but by the provider are, in fact, in

conflict with the principles of this Court in the

Griffiths case. In short, we contend that those

approaches are in conflict with the policy as to

charitable subvention which underpinned and was

approved and adopted by this Court in Griffiths.

The erroneous approaches taken by the trial

judge, with respect, in our contention, and the

Full Court have produced in this case a result

whereby a 40 hour week, that is, eight hours per

day five days per week in 1985, have been equated

with constant care seven days a week with no

Van Gervan(2) 6 27/5/92

overtime, breaks or days off as supplied by the

provider, and as will be necessary to be supplied

by the provider for the ensuing 7.5 years.

The ultimate result we contend is that the

larger part of the charitable subvention has
effectively gone to diminish damages to the

ultimate benefit of the tortfeasor. We contend,

Your Honours, that the principle that the plaintiff

is to be compensated for his need for constant

care, and the principle that such need should be

compensated on a standard or market rate, are

interdependent or symbiotic.

If the market rate is not used, then inconsistency and anomaly will be produced, and in

many cases, we submit, such as the present, the

larger part of the subvention will go to the

tortfeasor rather than to the plaintiff. Further,

we submit that any measure other than the standard

or market rate inevitably leads to a focus not on

the need of the plaintiff, but rather on the

circumstances of the provider, and will not lead

therefore to compensation for the need, but will,

we contend, inevitably lead back to compensation

based on actual loss.

DAWSON J: 

Why do you assess damages by adopting the most

expensive method of satisfying the need? For
example, if a person is living in a house which is

adequate for him notwithstanding his injury, you do

not give him compensation for creating another

house which would have those features. In other

words, you look at his actual need in the

circumstances in which he is.

MR AYLIFFE: 

We submit, Your Honour, that in this case the

commercial or market rate was $549 and that best

and most accurately measured the need.

DAWSON J: But he does not have to go into the commercial

market; he has a wife. Admittedly she should not

be seen as doing it for nothing, because that is

the principle in Griffiths' case, but at the same

time that is a less expensive method of satisfying

his need than going into the market.

MR.AYLIFFE:  Thank you for that, Your Honour. The answer to

Your Honour's question in short is that what

Your Honour is proposing, turned around another

way, is that part of the charitable subvention

should be therefore credited to the tortfeasor.

DAWSON J:  But that is always the case. Take the example I

gave: if a paraplegic happens to be living in a

house, when he suffers his injuries, which is

suitable for a paraplegic, you do not give him the

Van Gervan(2) 27/5/92

cost of building such a house. Whereas, if another

person does not have suitable premises, then that

is a cost which is - providing them is a cost which
is damages, and of course in the end it is, if you

had the first situation, to the benefit of the

tortfeasor. But you are after all assessing loss,

actual loss.

MR AYLIFFE: With respect, so far as the question of

gratuitous service is concerned, the principle in

Griffiths was that it is not an assessment of

actual loss; it is an assessment of need.

DAWSON J: Yes, but you do not satisfy the need in the most

expensive manner possible.	You do not have to, do
you?

MR AYLIFFE:  I submit in this case that the most appropriate

rate was the standard or market rate, and that is

the general measure of the need, because otherwise
part at least of the charitable subvention is not

being compensated for.

GAUDRON J:  And I suppose because the effort of the wife is

being considerably undervalued.

MR AYLIFFE: Thank you, Your Honour, yes, I would adopt

that.

BRENNAN J:  Would you have any objection to the proposition

that the value of the services is to be calculated

on a quantum meruit basis?

MR AYLIFFE:  It is my submission that if any other rate

rather than the standard or market rate is used, it

will lead, inevitably, to anomalies. The best rate

is the standard or market rate. That will ensure

that there is objectivity in measuring the loss.

Otherwise, there will be anomalous positions reached where one plaintiff, who has exactly the

same need as another plaintiff, may achieve a

vastly different result, simply on the basis that

plaintiff A has a gratuitous provider, plaintiff B

does not have a gratuitous provider or there may be

further permutations based on such considerations

as plaintiff A's wife was previously working prior

to the accident, plaintiff B's husband was working

prior to the accident. In scenario A, we might

have a situation where the standard or market rate

is uses; in scenario B we have a situation where

the actual loss sustained by the provider is used.

GAUDRON J: And, presumably, the high income earning wife

would not be compensated at her higher income

levels.

Van Gervan(2) 27/5/92

MR AYLIFFE:  Thank you for that, Your Honour. I come to

consider that because, inevitably, there is a flaw

in the principles of, say, Veselinovic whereby the

judges are forced, in my respectful submission, to

provide specifically that their approach can only
apply if the loss to the provider is less than the
standard or commercial rate and thus highlighting

the inconsistency of the approach because, on a

true application of their approach, in cases such

as that, the higher rate should apply. And,

equally, if the provider was not working, on a true

application of that approach there should be no loss which would be a total emasculation of the principles of this Court in Griffiths.

McHUGH J:  I did not quite follow what your answer was to Justice Brennan. Did you accept that the quantum

meruit basis would be an appropriate basis?

MR AYLIFFE:	No, I did not, Your Honour.
MCHUGH J:	Why not?
MR AYLIFFE:	Because it is my submission that the market or

standard rate, as held by His Honour the learned

Chief Justice, is the appropriate general measure.

DAWSON J:  But why? I mean, you have got to take the victim

as you find him and you find him as a married man

and some of the services, at least, which his wife

provides for him would have been provided in any

event. So you do not just go out into the

market-place and say, "What would it cost for

someone to replace the wife entirely?", because

that is not a loss, that is not a need that he had.

The need he had was not as an unmarried man without

any help at all. The need he had was as a married

man. But she might not stay and you have got to

take that eventuality into account, yes, that is

true.

MR AYLIFFE:  I would answer Your Honour's question there

with two contentions: firstly, that if a standard

or market rate is not applied, the inevitability is

that there will be an undervaluation of the
charitable subvention for the benefit of the

tortfeasor?

DAWSON J:  Why? Why can you not say, "Well, look, if you're

going to adopt a quantum meruit basis, for

instance, we will see what his wife's services were

worth which were over and above those which she

would provided in any event."?

MR AYLIFFE:	So far as the part of Your Honour's question with respect to the provision of services, in any
event, I would submit that that assumes a duty on

Van Gervan(2) 9 27/5/92

the part of the provider and, in my submission,

there is no such duty. It is not something that

can be insisted upon by the plaintiff; it is a

matter of a gratuitous and generous subvention
being offered after the accident amounting to, in
kind, in this case, we would contend, the
dedication, a decision to dedicate the life of the

provider to the constant nursing care of a

seriously injured plaintiff.

McHUGH J:  What happens when the market rate varies from

locality to locality? Supposing somebody is

injured in the remote outback and to get a care

provider there you would have to pay a very

substantial loading; is the market rate still the

appropriate rate in that case, even though it may

be much higher than you pay if it was in the city?

MR AYLIFFE:  If the position was unique and there was no

appropriate market rate effectively, because there
was no market in that locality, then perhaps that

may be a situation which would fall outside the

general rule of application of the measure of

standard or market rate, because there is no - - -

TOOHEY J: Well it might be said, Mr Ayliffe, that

reasonableness demands, in those circumstances,

that the plaintiff either accept the lower rate or

perhaps move to an area where assistance of this

sort is readily available.

MR AYLIFFE:  Thank you for that, Your Honour. The answer

may well be - - -

TOOHEY J: There may be an economic loss involved in that,

of course.

MR AYLIFFE:  Yes. The appropriate course may well be that

in those circumstances a seriously injured

plaintiff should move to an area where there is a

market and the services are able to be provided.

TOOHEY J: Thank you.

BRENNAN J:  Mr Ayliffe, when you say "market rate", are you

speaking about a care provider who comes in by the

eight hours and goes away again?

MR AYLIFFE:  In this case Your Honour, because the need was

for constant care, the appropriate market measure

was based on a live-in carer, a total rate of $549

was provided which, we would submit, is still

modest; it amounts to over the totality of a week

being 168 hours, about $3.22 per hour. That is the

effective way, we would submit, that constant care

is able to be administered.

Van Gervan(2) 10 27/5/92

DAWSON J:  And you would include in that holiday loadings

and the like?

MR AYLIFFE: Yes, Your Honour. The agreed facts - - -

DAWSON J: Penalty rates?

MR AYLIFFE:  - - - included a 20 per cent loading on the

weekly rate catering for those concepts that

Your Honour refers to.

TOOHEY J: Is there a finding or an agreement that

round-the-clock care is appropriate?

MR AYLIFFE:  We submit that follows, Your Honour, from

His Honours finding that constant care and the

particulars which was substantially found, that

constant care was necessary; he was not fit to be

left alone or unsupervised, Your Honour.

BRENNAN J: Could you direct me to the passage of the trial

judge's findings or, if not, to the evidence which

identifies the components that went into the $549 a

week?

MR AYLIFFE: Yes, Your Honour. Could I take Your Honour to

volume 1 of the appeal book, page 14, and could I

take Your Honour through to page 17, agreed fact

10.

BRENNAN J:  I am not looking for the calculations of the

amounts, but what the care provider would have been

paid $549 was going to do and get for that.

MR AYLIFFE:  Yes. I take Your Honour to volume 2, the

decision, commencing at page 40. If I could take

Your Honour to page 58.

MASON CJ:  58?

MR AYLIFFE: Page 58, Your Honour. His Honour finds:

that the plaintiff is in need of constant

care.

He says the following particulars of need were

furnished:

The plaintiff has poor short term memory and is unable to manage his own affairs on a day

to day or hour to hour basis.

He becomes severely depressed and cries often.

BRENNAN J: These are his needs, but it is the second

paragraph on page 58, is it not, which answers my

Van Gervan(2) 11 27/5/92

question? I am looking for what the service is

going to provide for $549; is that where I find it?

MR AYLIFFE:  We say so, yes, Your Honour.

BRENNAN J: Is there anywhere else?

MR AYLIFFE: In His Honour's judgment.

BRENNAN J: Well, where?

MR AYLIFFE:  No, there is nowhere else in His Honour's

judgment because - - -

BRENNAN J:  Is there any evidence which indicates what was

being given for $549?

MR AYLIFFE:  No, Your Honour, there is only evidence of the

agreed facts; that is, that that care could be

provided, on that basis, by the Bay Domestic and

Nursing Agency.

TOOHEY J: There is a difficulty in the notion of "care" in

this particular case, Mr Ayliffe, I think. It is

one thing where the situation is of a quadriplegic

who needs constant physical attention or may need

constant physical attention.

MR AYLIFFE: Yes.

TOOHEY J: There is an element in this case, it would appear

from the particulars and from what has been said by

the trial judge, of something that does not

constitute physical care but, rather, constitutes

the companionship of a person. Perhaps the need,

for instance, if you look at the particular (vi):

He feels uncomfortable in the company of

people other than his wife and is untrusting

of them.

Now that is not the sort of thing that paying Bay

Service will compensate for presumably.

MR AYLIFFE: 

Your Honour, the trial judge's finding, of

course, was made on all the evidence as that
evidence coloured and explained those particulars,
but there was a constant need and that was, in my

submission, clearly demonstrated on the evidence.

TOOHEY J: It is the idea of need that I am raising with

you: whether "need" means what it might mean in

many cases, namely, constant physical attention for

feeding, use of toilet facilities, showering, that

sort of thing, but that is not the sort of need

that appears to be expressed or, at least, not to

the same extent in this particular case.

Van Gervan(2) 12 27/5/92

MR AYLIFFE:  Your Honour, there was all that sort of need,

that is, assistance as far as dressing was

concerned, bathing, meals, eating, sleep routine,

monitoring his walks; there was that active

component of the need but, in addition, this

plaintiff was a danger to himself and needed to be

constantly supervised. As I understand

Your Honour's question, you were directing your

question to the second component of the care, that

is constant supervision. In my submission, the

overall rate of $549 amounting to about $3.22 per

hour is an appropriate rate, given the dual nature

of the care, that is, comprising of a substantial
amount of actual physical care as well as continued

supervision.

TOOHEY J:  Do you mean by that the amount claimed is not

literally round-the-clock service -

MR AYLIFFE:	I mean, Your Honour, that there is -
TOOHEY J:	- - - but the number of hours that might be

appropriate given the various disabilities that the

appellant suffers from?

MR AYLIFFE:  - - - a need for the plaintiff to be constantly

attended. He is a danger to himself and he needs

to be constantly supervised.

McHUGH J:  Can you put your case higher than what

Mr Justice Wright said at the bottom of page 82, in

the very last sentence on that page:

In saying this I do not overlook the factor

that her provision of care and attention

extends intermittently over 15 or 16 hours per day rather than being compressed into an eight hour time span - - -

MR AYLIFFE: If His Honour allows eight hours for sleeping,

then one can see a result of 15 or 16 hours, but

nevertheless it was clear, Your Honour - - -

MASON CJ:  What do you say about the passage at page 73, at

the top of the page in the Chief Justice's

judgment? Does that give a fair picture?

MR AYLIFFE:  We submit, Your Honour, that His Honour the

learned Chief Justice was unfair to the plaintiff

to characterize the provider as being on call.	In
fact the provider was on duty.	The provider was

not free to run her own life. She needed to be

either actively engaged in providing service for

the appellant or, alternatively, continuously

engaged in supervising him. The rate allowed at

$277 represents $1.71 per hour on a 24-hour basis.

It is our submission that that is an unacceptable

Van Gervan(2) 13 27/5/92

rate by any standard. It could, by way of example,

be measured by a rate that one would pay to a

babysitter. It, in our submission, is unacceptable

on any basis of a fair industrial reward.

GAUDRON J:  One of the difficulties, it seems to me, about

that passage at page 73 is that it is looking at

things from the wife's point of view. If one were

to look at things from the wife's point of view
there would be a whole range of considerations to

be taken into account, very much like those that

used to be taken into account when there were

damages for loss of consortia. But that has gone,

has it not?

MR AYLIFFE:  Yes, Your Honour.

GAUDRON J: And if you look at it from her point of view

only you might wish to compensate for loss of

social life, failure to go to the casino and all

sorts of things.

MR AYLIFFE:  Your Honour, further to that, we would submit

that the fundamental of the approach of the learned

Chief Justice is in error because he has sought to

factually equate what the wife used to do with what

the wife is now required to do. The evidence did

not focus at all; there was no evidence about what

the wife's actual duties were and that was for the

reason that that was seen as being irrelevant. If,

in fact, this approach is correct, we would contend

that a result of that would be to considerably

lengthen trials because the evidence will need to

focus on all these other matters.

GAUDRON J: And what the wife would be doing now, what she

would be earning now in that position.

MR AYLIFFE:  Yes, thank you for that, Your Honour. We would

contend, in fact, that there was, in effect, no

evidentiary basis for His Honour to make a factual

equation because there was no evidence about what

the wife's duties were at the Huon Elder Care

Centre as a nurses' aide, apart perhaps from a

general idea of what a nurses' aide may or may not

do. But how much of her duties amounted to

supervision and how much of her duties amount to

actual care for plaintiffs was completely

unexplained in the evidence for that reason.

BRENNAN J:  Mr Ayliffe, could I bother you again about the

$549?	I have done some calculations from the
figures on pages 17 and 58.	I can get them up to
$517.	Where do I find the $549?

MR AYLIFFE:  On page 18 - five days at $40, Your Honour.

Van Gervan(2) 14 27/5/92

BRENNAN J: Seven days at $40, surely.

MR AYLIFFE:	No, five days at $40, Your Honour, because paragraphs l0(iii) and (iv) may well answer
Your Honour's question.
BRENNAN J: There are five days at	$40; there is one day at

$60; there is one day at $80. Then we have $20

per day for live-in help.	We have $50 per year for
workers' compensation and	so forth.

MR AYLIFFE:  And the 20 per cent loading on the weekly rate

which I believe is $68, Your Honour. That is on

the five days at $200; the one day at $60 and the

one day at $80. That is 20 per cent of $340,

Your Honour.

BRENNAN J: That is what is being provided for this money.

Is that right?

MR AYLIFFE: Yes, Your Honour.

BRENNAN J: Well now, that raises a number of questions.

$40 per day wages. Is that for round the clock?

Is that what it is? The Bay Nursing Service

provides $40 per day for round-the-clock services.

MR AYLIFFE: There are two possible interpretations, that

$40 per day amounts to an industrial day, or eight

hours; or for the total 24 hours.

BRENNAN J: Which was it?

MR AYLIFFE:	We accept that the less favourable, as far as the plaintiff is concerned, approach is the correct
approach, that is, $40 for the 24 hours.
BRENNAN J:	It was not proved anywhere in evidence what this

$40 was for.

MR AYLIFFE: Unfortunately not. Accordingly, we are stuck,

it would seem, with the finding that $40 per day

means a 24-hour day.

GAUDRON J: It does not mean 24 hours a day, people do not

live that long, it means on call 24 hours a day.

MR AYLIFFE: It assumes, Your Honour, by reference to

paragraph l0(vi), that the carer would be resident

and sleeping, obviously, about eight hours a day,

and that is why a relatively modest rate is

provided because the carer, obviously, will need to

sleep and need to look after her own personal

needs, as any human would want.

BRENNAN J: Then, what do you say about giving a wife double

time on Sunday?

Van Gervan(2) 15 27/5/92

MR AYLIFFE:  We submit, Your Honour, that this carer is

effectively dedicating her life to caring for this

plaintiff. Nothing has been given for - I am sorry

20 per cent has been given, about $68, but a modest

allowance has been made on the basis that there is

no overtime or sick leave or such matters. When

looked at in the round, we submit that $549 amounts

to $3.23 per hour.

BRENNAN J:  I am not doubting the mathematics of this, what

I am concerned about is whether, if it be right to approach this as a matter of principle on the

footing of what were the wife's services worth,

then one might look at the $549 as evidence of what

they are worth; one might look at what a wife has

given up as evidence of what they are worth. There

may be a great variety of figures that one can look

at to see what the wife's services are worth.	It
just does not seem to me to be appropriate to

equate, necessarily, the market rate with the real

inquiry which I would have thought, what were these

services worth. And perhaps one reason why you do

not is because a provider of services in the market

looks to income derived, however modestly it may be

estimated as it seems to have been in this case,

for the derivation of savings, for the provision, perhaps, of one's own accommodation, a variety of things that do not apply in the case where the

provider of the service is the wife with an

expectation of continued maintenance ..... , and

perhaps long-term capital benefits.

MR AYLIFFE:  Your Honour, we contend that if a non-objective

basis is used then, inevitably, what is being

measured is not the need of the plaintiff which was

the fundamental of the Griffiths case.

BRENNAN J:  I have heard you say so but I have not seen the

argument for this because it seems to me that you

have avoided the proposition of what is the true

measure that you adopt in order to determine the

value of the services provided. All you have said

is that you must adopt the market rate, though he

has not gone into the market for the purpose of

providing the services.

MR AYLIFFE:  Your Honour, our position is that the general

rule that the standard or market rate should be the

measure is our position. If there is no general

rule, contrary to our submission, then, in any

event, on the facts of this case we submit that the

market or standard rate is the appropriate measure.

So far as Your Honour's earlier question was

concerned, if Your Honour takes as criteria losses

to the wife, then Your Honour is introducing a

measure which does not focus on the need of the

plaintiff but rather on extraneous matters to do

Van Gervan(2) 16 27/5/92

with the provider. That approach, Your Honour, may
well lead to an anomalous position as we say arose
here, where an eight-hour day has been exchanged
for a 24-hour day, notwithstanding that the

provider is able to sleep for eight hours of the

day.

BRENNAN J:  The anomaly can work both ways. You can take a

company director who gives up the emoluments of a

very great income to look after her husband.

MR AYLIFFE:  What one is doing is transferring a measure of

a different job which may have involved different

duties, different hours and different conditions of

work or service and equating that with the service

that is required to be supplied to the injured

appellant.

GAUDRON J:  Is not one of the difficulties in this: how do

you value things if not by the market value? There
is a very great deal of feminist learning which
would say that the value of a wife has been

considerably undervalued for something like 2000

years precisely because it has not ever been

estimated on market value.

MR AYLIFFE:  Your Honour, thank you for that. There is an

article, which I do not believe is in Your Honour's

list of authorities, by Keeler, which makes that

very point. It is my simple submission that if any

other measure is used, it must inevitably lead to

inconsistency and anomaly, and the standard or

market rate will inevitably produce across the

board the most consistent results and will most

cater for the fundamental principle of Griffiths

that charitable subvention should not be debited or

any part thereof, consistently, must not be debited

against the plaintiff and credited to the

tortfeasor. The underlying principle of Griffiths,

in our submission, is strongly supportive of the

interrelated principle of market or standard rate,

otherwise inconsistencies, anomalies and irrelevant

criteria - - -

DAWSON J:	Why should the tortfeasor have to pay for services which were being gratuitously provided
before the accident, because in so far as they
were, there is no need.
MR AYLIFFE:	We submit that that presupposes that the spouse

is under a duty to continue to supply - - -

DAWSON J: That is a matter of fact, that that is what she

was doing.

MR AYLIFFE:  We submit that there is the world of difference

between a happily married couple equally sharing

Van Gervan(2) 17 27/5/92

the tasks and chores of their marriage. There is

no actual need for somebody to be cooked for. The

husband is perfectly capable of cooking for himself

if he so chooses, but as a matter of election the

parties divide their chores and their life up in

such a way. That is in my submission a

fundamentally different proposition to a very

generous decision freely taken by a spouse after

her spouse has been very seriously injured, to

dedicate her life as a matter of service to nurse

and care on a constant basis for such a plaintiff.

The consequence of Your Honour's proposition must

result in that class of domestic service previously

supplied being credited to the tortfeasor.

DAWSON J:  I am only repeating myself, but that is always

so. You take the victim as you find him in both

ways and if he is not in any particular need

because of advantageous circumstances, then of

course you do not compensate tortfeasor benefits,

but that is axiomatic.

MR AYLIFFE:  The short answer, I think, Your Honour, is that

merely because a spouse was cooking for her spouse

prior to the accident does not mean that there was

a need for that to be done; that was a matter of

election, arrangement.

DAWSON J:  No, he does not have any need for someone to cook

for him because that need was being satisfied.	You
do have to take into account as to whether this
would have continued in assessing damages, but
nevertheless there is no need.

GAUDRON J:  It probably did not go into evidence about this,

but maybe the husband did other useful things

around the house. There was some evidence that he

made the tea and washed up and did a variety of

things. Maybe his wife was not doing everything

and maybe he was doing some things in return for

her with his woodworking tools and keeping the

place neat and tidy and making knick-knacks and so

on.

MR AYLIFFE:  I do not think I am being controversial to

say - thank you for that, Your Honour - that the

evidence was that he mowed the lawns, did the

gardening and renovated the house.

DAWSON J: That is a different thing. You are then looking

at the wife's loss and we are not, as

Justice Gaudron points out, looking at the wife's

loss. You are looking at his need.

MR AYLIFFE: His need.

Van Gervan(2) 18 27/5/92

DAWSON J:	And he does not need someone, for instance, to cook for him if his wife was cooking for him and
was likely, as a matter of fact, to go on cooking
for him.

MR AYLIFFE: If his wife withdrew as a result of these

fundamentally changed - - -

DAWSON J: All right, you would have to assess, as a matter

of fact, on the probabilities, whether she was

likely to withdraw or not. But that is another

question.

MR AYLIFFE: It is related, to this extent, Your Honour,

that nobody could dispute that the wife had a right

to withdraw.

DAWSON J: True, but if you could to the conclusion that, in

any event, she would have gone on doing these

things, he had no need. That is what I am putting

to you.

MR AYLIFFE: Yes, but if taken to its logical extension,

with respect, Your Honour, the gratuitous supplier

is going to supply all the services gratuitously

and it could be argued that there was no need at

all.

DAWSON J: Obviously, she was going to supply something she

was not supplying previous, that is her presence,

when previously she was occupied in duties

elsewhere. That is something which was foregone by

the wife to satisfy the need.

MR AYLIFFE:  My submission is that as a result of the

accident the husband has the need for the provision

of meals, cooking and assistance in eating, to use

that component of the need. He did not have that

need prior to the accident; he was perfectly

capable, if he so chose, of doing it himself. That

would be my contention, Your Honour.

DAWSON J:  That is putting it round the other way. He does

not have the need after the accident as he did not

have it before because it had been done for him and

would have been done for him, in any event.

MR AYLIFFE:  As a matter of free election but not as a

matter of need.

DAWSON J: Whether it is free election or not, the fact that

it is being done, if we are looking at need, means

there was no need.

MR AYLIFFE:  I contend that there is a distinction,

Your Honour. If a husband is perfectly capable of

cooking for himself, doing such matters for himself

Van Gervan(2) 19 27/5/92

prior to the accident but is no longer capable of

doing it as a result of the tortfeasor's

negligence, he did not have the need before the

accident, he has the need after the accident.

McHUGH J: It is a question of determining what his loss is

and then, perhaps, it is a question of policy as to

what extent you take into account the voluntary

acts of others, both before and after the accident.

MR AYLIFFE:  I would submit that the Griffiths' case,

Your Honour, establishes firmly that the loss is

the need and, in this case, the need for constant

nursing care.

TOOHEY J:  I appreciate that the word "need" is used in a

lot of these cases. I wonder if it does not,

perhaps, divert attention from the real question
which is what has the plaintiff lost. In a sense,
he, in this case, has lost the capacity to care for

himself and it may be that that capacity can only be compensated for by the sort of service that is

involved in the Bay Nursing Agency to which the

position of the wife, in a sense, is quite

irrelevant. I am not suggesting that that is an

answer but I just wonder whether the emphasis on

need is perhaps undue.

MR AYLIFFE:  The emphasis on need, Your Honour, as I

understand the authorities has been deliberately so

in order to distinguish this particular aspect of

compensation from the general heads of damage where

actual loss or possible loss is the test. With

respect to charitable subvention, that distinction

has been sharply emphasized, with respect, by this

Court in both Griffiths and by the English courts

in cases such as Donnelly. Perhaps it is because

of that distinction that anomalous results will

inevitably ensue if an objective basis is not used.

DAWSON J:	If you take a very wealthy man who has a house which is staffed with countless servants who
provide for his every need and he is injured in an
accident and there is no greater cost to him
because of the accident in the sense that his needs are being met by the servants which he always has
and always would have had, would the defendant then
have to pay the costs of constant care when he had
it anyway?
MR AYLIFFE:	If a wealthy man or woman were directing their

resource in a way where hired employees were

providing meals for him, and that was a matter of

election, he could have diverted those employees to

do other things for him to generate income and

wealth or further wealth for him, but he chose to

structure his affairs in that particular way.

Van Gervan(2) 20 27/5/92

DAWSON J: But what you are saying to me is that,

notwithstanding, he would have had a full-time

housekeeper, for instance, before the accident and

it would have continued; if he is injured and

requires a full-time housekeeper, whereas it was an

indulgence beforehand, the defendant has to pay the

cost of that housekeeper, as a loss which he has

suffered.

MR AYLIFFE:  He did not have the need for the full-time

housekeeper.

DAWSON J: But are you saying that the defendant would have

to pay the cost?

MR AYLIFFE:  I am submitting that, in accordance with the

principles in Griffiths and Donnelly and other

cases that I will come to Your Honour, that the

defendant should pay the costs in those

circumstances, yes.

DAWSON J: Notwithstanding this is a cost which the

plaintiff would have borne in any event?

MR AYLIFFE:  No I, with respect, take issue with that

because, whilst the plaintiff may have organized

his staff in such a way that a member of staff was

cooking for him prior to the accident, that was

freeing him to do other things. Because of the

accident he is in need of care, in need of

having - - -

DAWSON J: But "freeing him to do other things", he gets

compensation for loss of enjoyment of life and all

of those things, we are not talking about that.

MR AYLIFFE: Well, it is my submission - my short answer to

Your Honour is that he did not have the need before

the accident; he has the need - it is no longer a

matter of election, no longer a matter of

arrangement. There is a clear need, resulting from

the tortfeasor's negligence, for him to have

somebody to do that and, in those circumstances, it

is wrong in principle that that subvention ought be

to the credit of the defendant.	The defendant has
created the need.

McHUGH J: But did not Mr Justice Gibbs in Griffiths put it

an important qualifier on "need"? The only

relevant needs were those needs which created or

might be productive of loss. So, in the

illustration of the wealthy man, the need does not

create any financial loss, does it not?

MR AYLIFFE:  Your Honour, I plan to come in some detail to

the judgment of Justice Gibbs, but the short answer

to Your Honour's question is that the tests

Van Gervan(2) 21 27/5/92

formulated by Justice Gibbs were primarily
formulated in order to cater for an exception which

Justice Gibbs was at pains to make to the general

rule, and that exception was to do with subvention,

free of charge by the State. That was the

particular exception that His Honour devoted a

large part of his judgment to emphasizing and
creating. His Honour held that as a general rule,

gratuitous service is compensable, notwithstanding

that it is gratuitously supplied, and it is

inherent in His Honour's decision - in fact it was

not inherent, it was part of the facts of that case

that it was to be supplied by a loved one; by a

fiancee in that case. Inevitably, these sort of

cases are going to feature the provision of the

service by a spouse or by a loved one. If one then

is to exclude what may be said to be services that

should be supplied by a loved one as a part of a

familial duty or part of a currency of life, then

one is effectively, in my submission, to exclude a

large component of the charitable subvention.

MASON CJ:  Now, Mr Ayliffe, can you take us to the best

statements in the cases, from your point of view.

MR AYLIFFE: Yes.

MASON CJ:  Now there is no need to read, as it were, large

passages from judgments to us, but if you can go to

those judgments which you say provide the best

support for you and direct us to the particular

passages that support your proposition.

MR AYLIFFE:  Your Honour, can I take you firstly to

Donnelly's case.

MASON CJ: Yes.

MR AYLIFFE:  I rely on the - perhaps the most important

passage.

MASON CJ: Well now, what is the reference for Donnelly'?
MR AYLIFFE:	It is the judgment of Lord Justice Megaw at

page 480.

MASON CJ: Yes, what is the full report?

DEANE J: It is (1974) 1 QB.

MR AYLIFFE:  Page 480, Your Honours. The reference is

(1973) 3 All ER.

MASON CJ: It is reported in the authorized reports. It is

(1974) 1 QB and we work from the authorized

reports.

Van Gervan(2) 22 27/5/92

MR AYLIFFE:  I do apologize, Your Honour, I am aware of that

and we are in error.

MASON CJ:	Now, can you give us an indication as to where we can find it because we have the authorized reports?
MR AYLIFFE:	Thank you, if Your Honours will bear with me

for a moment.

DEANE J: It seems to be at page 461.

MR AYLIFFE:  Thank you, Your Honour. I am looking for the

passage which starts, "The loss is the plaintiff's

loss".

DAWSON J: That is at the top of page 462.

MASON CJ: Third line.

MR AYLIFFE: Thank you, Your Honours, yes. That passage

states:

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 liability to repay,

are, so far as the defendant and his liability

are concerned, all irrelevant.

And going through that passage:

That, in our judgment, is the key to the

problem. So far as the defendant is

concerned, the loss is not someone else's

loss. It is the plaintiff's loss.

Hence, it does not matter, so far as the

defendant's liability to the plaintiff is

by the plaintiff out of his own pocket or by a	concerned, whether the needs have ben supplied
charitable contribution to him from some other
person whom we shall call the "provider".

That passage was quoted with approval by

Justice Gibbs in Griffiths at page 164 point 5.

BRENNAN J: What is the reference?

MR AYLIFFE: Justice Gibbs, 164 point 5.

MASON CJ: But what is the reference to Griffiths

v Kerkemeyer.

MR AYLIFFE:  I am sorry, Your Honour, 139 CLR 161.

Van Gervan(2) 23 27/5/92

MASON CJ:	Yes?
MR AYLIFFE:	Can I also take Your Honour to, whilst on the

judgment - - -

McHUGH J: His Honour qualified that passage, he did not

accept it.

MR AYLIFFE:  He qualified it to the extent of subvention

free of charge by the State. At page 168,

Your Honour, I submit that he did accept it.

McHUGH J:  He went beyond qualifying it so far as there were

services provided by the State, he thought it was

irreconcilable with Graham v Baker, did he not; he

puts it on a wider basis.

MR AYLIFFE:  He thought the decision was a departure from

Blundell v Musgrave, Your Honour.	Can I take
Your Honour to page 168.	He there refers to the

decision of Parry v Cleaver which, in my

submission, is a significant decision because it

comes from a related issue, that is the principle

of law to be applied when a plaintiff receives a

gift or a gratuitously collected fund after an

accident. In those circumstances the Court has

there held, in a similar way to Griffiths, that

that charitable subvention ought not be debited

against the plaintiff, that is that notwithstanding

that a collection has been made because a person

has been seriously injured arising out of an

accident, nevertheless that collection should not
go to the benefit of the defendant, it should go to

the benefit of the plaintiff, and His Honour draws

on that as authority for his ultimate proposition.

He concludes, we say importantly, on the

matter of principle as to the plaintiff gaining the

full measure of the charitable subvention:

that damages under this head could only be	It would seem unjust to an ordinary person
recovered if the injured plaintiff had
retained sufficient capacity, and shown
sufficient foresight, to enter into a binding
contract ..... And although, under the principle
formerly accepted, the plaintiff might have
lost his special damages if he was not able to pay for the services provided to him, it would have been easy for him to correct the position for the future once he realized that his
damages depended upon whether or not he bound
himself to pay for the services. A rule
having that effect placed a premium on
astuteness. For all these reasons, we should,

Van Gervan(2) 24 27/5/92

I think, accept that the conclusion reached in

Donnelly v Joyce was correct.

Whilst considering that decision of Donnelly v

Joyce, could I also refer Your Honours to the case

of Hay v Hughes, (1975) 1 QB 790, which is also an

important authority, albeit on a slightly analogous

area.

In Hay v Hughes, the husband and wife, aged 28

and 24, were killed in a motor vehicle accident leaving two sons, four and a half and two and a

half. Their grandmother took them in and cared for

them. An action was brought on behalf of the two

children seeking that that charitable subvention on

the part of the grandmother ought be to their

credit at the rate of about 15 pounds per week,

which was the appropriate rate which would have

been charged by an equivalent housekeeper or nanny.

The principle that arose from that case is

that even though on the one hand it may be said,

pursuant to the Fatal Accidents Act in England,

that that charitable subvention arose as a result

of the death and therefore ought to be deleted in

accordance with the formula pursuant to that Act,

that is, that detriment sustained ought be

compensated, less benefits received arising out of

the same event, that is, the death. The court

rejected that argument and said that, in fact, the

charitable subvention on behalf of the child's

grandmother arose as a result of the generous

decision of the grandmother taken after the

accident to provide the full-time care for those

two children, and thus assessed the plaintiff's

damages on that rate, that is to say, the market

rate of an equivalent nanny or housekeeper at

15 pounds per week. Accordingly, by analogy, that

Griffiths v

case supports the principle of compensable and the market or standard rate being	the correct measure. Both those principles, as I	have already submitted, in our submission, rest on
the basis that the charitable subvention should go for the benefit of the plaintiff, not for the
benefit of the tortfeasor.

Can I return, Your Honour, to His Honour

Justice Stephen's judgment in Griffiths at page 173 point 8. His Honour had previously referred to

Donnelly v Joyce and also referred to two other cases, Roach v Yates and Liffen v Watson, and said,

referring to the judgment of Lord Justice Megaw

with approval, I submit:

It is then, his Lordship said, irrelevant to his entitlement to those damages that the need

Van Gervan(2) 25 27/5/92

has been satisfied by the gratuitous supply to
him of the needed goods or services.

Page 175 point 6 of the judgment of Stephen J I would also refer the Court to where His Honour

says:

The principle in Donnelly v Joyce readily

enables an injured plaintiff to recover

damages for his accident-caused needs met by

third party subventions in those very cases

most calling for it. I refer to those

deserving cases concerned with charitable
subventions by friends or relatives who, to

benefit the plaintiff, and with no thought of

relieving the wrongdoer, gratuitously provide

him with funds, services or goods. In such cases the courts will clearly not treat the

gratuitous subventions as properly to be

debited against the plaintiff. It is just
such a case with which this appeal is

concerned.

Your Honour the learned Chief Justice in his

decision quoted that passage from

Lord Justice Megaw with approval at page 191

point 9 of his judgment:

The loss is the plaintiff's loss.

Could I also refer the Court to the American authority of Victor Jackson v United States of

America. It is a United States District Court

decision, E.D. - and I confess I do not understand
what E.D. means - Arkansas w.o. 526 Federal

Supplement 1149. Your Honours, it is a decision of

first instance from, it would seem, a court of

federal jurisdiction rather than state

jurisdiction. It is the only helpful case that we

have been able to find from the United States

jurisdiction, Your Honours. It would appear that

usually the claim is brought by the provider for

recompense directly rather than the injured person.

If I could take Your Honours to the relevant

passage at page 1154, column 1. The paragraphs are

numbered 13 and 14. About four lines into that

paragraph, His Honour states:

It matters not that these services are

provided by his wife. In order to render the

full-time care that plaintiff requires, she

has had to quit her job as a school teacher.

Plaintiff urges that we measure these damages

by her salary as a school teacher during his

life expectancy. We do not regard this as a

proper measure of damages. Her value as a

school teacher does not equate with her value

Van Gervan(2) 26 27/5/92

as a caretaker.	No proof has been adduced as
to the monetary value of this service.	We are

in agreement that plaintiff is entitled to a

substantial award for caretaking expense, even

though these services are now provided by his

wife who undoubtedly took a marriage vow to

care for him in sickness and in health. His

wife may not always be able to care for him,

or she may predecease him. In assessing the

value of these services over and beyond the services a wife ordinarily provides for her husband, we are entitled to draw upon our

experience in the affairs of life. We have

valued such services in our findings of fact.

MASON CJ: Mr Ayliffe, I do not know what assistance a

decision like that is to this Court in the absence
of some indication that it is broadly accepted by

appellate courts in the United States as the

accepted approach to the problem.

MR AYLIFFE:  I am unable to give Your Honour that assurance.

MASON CJ: Yes, well, as is pointed out to me, if this

decision is indicative of the approach in the

United States, it is against you because, in the

second-last sentence of the judgment the statement

is made:

In assessing the value of these services over

and beyond the services a wife ordinarily

provides for her husband, we are entitled to

draw upon our experience in the affairs of

life.

MR AYLIFFE:  Yes.

MASON CJ: And preceding that:

His wife may not always be able to care for

him, or she may predecease him.

MR AYLIFFE:  Thank you for that, Your Honour, I refer to it

only so far as the support that it provides with

respect to the suggestion that the measure of the

wage lost by the wife is not the appropriate
measure.

Your Honour, can I refer Your Honours to the dissenting judgment of Mr Justice Reynolds in the

Kovac case, (1982) 1 NSWLR 656. The facts,

briefly, in that case, Your Honours, were that the

plaintiff was brain damaged; suffered diminished

memory call; spent a great part of the day

sleeping, needed assistance eating, showering and

dressing; she was incapable of looking after

herself. The husband looked after her. He was at

Van Gervan(2) 27 27/5/92

home on workers' compensation in any event and it

was not known how long his disability, so far as

his workers' compensation entitlement was

concerned, would last. If I could take

Your Honours to that part of the judgment of

Mr Justice Reynolds at page 658.	He states at
line E:

was said:

If the true concept be that it is lost earning

capacity to the extent to which it is likely
to be exercised in the future, rather than

loss of future earnings, that is to be

compensated it may seem inelegant to speak of

deducting from damages for that lost capacity

an amount for some saving in outgoings. It

would better accord with principle if the
savings in board and lodging could be isolated

from, and excluded from the damages to be awarded in respect of, hospital expenses.

But irrespective of which head of damages, Your Honours, it was appropriate to deduct it from,

it is certainly not contested that it was

inappropriate to deduct it. I refer Your Honours

also to Griffiths v Kerkemeyer at pages -

GAUDRON J:

But is it done? I understand what was there

said, but is it done? If it can be predicted, let

us say, that a person is going to be hospitalized

for one month in every year for the next 10 years,

does one deduct from the cost of hospitalization an

amount equivalent to what - well, for his ordinary

sustenance outside hospital?

MR PITT:  I can only answer Your Honour by reference to

what, in my submission, would be an appropriate

case for that kind of a deduction to be made.	In
one circumstance there would be cases where the

admittances to hospital would be of such short

duration that it would be inappropriate to deduct

other costs which would be of an ongoing nature.

In other cases and, in my submission, in cases

such as the present; such as Griffiths v

Van Gervan(2) 70 27/5/92

Kerkemeyer, such as Sharman v Evans, the extended

hospitalization is of such a nature, such a

duration and provides in such a total way for the

injured plaintiff that it is appropriate to take it

into account and, in my submission, there is a

direct parallel between the present circumstances

and Griffiths v Kerkemeyer where that was taken as

being the meter by the trial judge and was affirmed

on appeal, of course, to this Court. But I cannot

answer Your Honour as to the generality of cases.

I would submit that if it is not done in

appropriate cases, it should be and this, I submit,

is an appropriate case.

Just to complete that submission,

Your Honours, the plaintiff has, in fact, in this

case, been fully compensated if he has lost any

capacity in the future and, to the extent that his

award for nursing services includes provision for

his board and lodging which would have been

incurred in any event, in my submission, there is,

in that sense, an overlap of damages. The

respondents do not appeal against that but, in my

submission, it is a valid matter to refer to in

trying to assess the value of the services provided

by the wife to satisfy these needs by reference to
the alternative of what would happen if she could

not any longer care and, as I say, that was the

kind of exercise adopted in Sharman v Evans, and in

Griffiths v Kerkemeyer.

I submit that in order to succeed here the appellant must show that the damages awarded were

wholly disproportionate to the injuries sustained.

In my respectful submission, that certainly has not

been demonstrated.

One further matter, Your Honours, is that if

one looks for an alternative touchstone then one

might put it in this way; if one applies the

commercial rate; if one accepts that it is the
commercial rate in parenthesis which is to apply

here, then it is a commercial rate which I submit
has to be notionally fixed by reference to the

kinds of duty which would be performed by a person

in their own home, in their own time with the

inhibitions that have been mentioned and

restrictions that have been mentioned and the like,

so that it comes away from the ordinary set

commercial rate for an outside carer yet again in

any event.

I stress, if I may, in conclusion, subject to

any matters that the Court may seek to raise, the

proposition that using the principal alternative

which may come into play at any time, I submit that

Van Gervan(2) 71 27/5/92

the plaintiff has manifestly not been

undercompensated.

GAUDRON J:  Mr Pitt, I have a question - it is only a

mechanical matter. How was the respite care and

respite period allowed for in relation to the

Griffiths v Kerkemeyer damages?

MR PITT: It was treated, Your Honour, as a separate item

and it was taken on the basis of several weeks a

year at the Woodhouse or equivalent centre. If I

can find for Your Honour the reference to it, if

you will excuse me, and a separate allowance was

made for it, in any event.

GAUDRON J: Yes, but were the damages discounted for the

respite care?

MR PITT:  The damages for future nursing care were

discounted in this sense, Your Honour, that out of

the weekly rate, taken as appropriate for the

Woodhouse Centre, the - - -

GAUDRON J: Yes, what about the weekly rate appropriate for

Mrs Van Gervan?

MR PITT:  No, they were not.

GAUDRON J: They were not discounted for that?

MR PITT:  No, Your Honour.

GAUDRON J: What is the 20 per cent referable to?

MR PITT·: General contingencies of life, death and the like,

I presume, Your Honour. It was not expressed in

the decision but, in my submission, that - - -

GAUDRON J: Is that a usual rate in Tasmania?

MR PITT:  No, it is a high rate, with respect, Your Honour;

that, in taking into account the particular

circumstances of this plaintiff and the

difficulties that beset him, it was not an

unreasonable rate. He was a man at risk - - -

GAUDRON J: Yes.

McHUGH J:  Mr Pitt, can I just have your assistance on a

passage in the judgment of Mr Justice Gibbs in

Griffiths v Kerkemeyer at page 169. In the second paragraph on that page, about point 5 of the page,

there is a sentence:

Where necessary services have been provided

gratuitously by a relative or friend, it

should now, as a general rule, be held that

Van Gervan(2) 72 27/5/92

the value of the services so provided should

not reduce the damages payable to the

plaintiff.

Now, what do you say about that? Is His Honour

there suggesting that you ignore altogether the services provided by the relative or friend and

that you assess the damages in some objective

fashion, as would seem to be evidenced by his

general agreement with Mr Justice Mason's judgment?

MR PITT:  I would submit not totally objectively,

Your Honour, in the sense that they are to be
assessed having regard to the fair and reasonable
value to be put upon the services, but that he was

saying, to the extent that those services have been

satisfied by a gratuitous provider, that ought not

enure to the benefit of the defendant.

McHUGH J: Well, he does not merely refer to the fact that

the services are being gratuitously provided, but

he said:

that the value of the services so provided

should not reduce - - -

MR PITT:  I am sorry, I had read it, Your Honour, starting a

little bit further up:

Where necessary services have been provided

gratuitously by a relative or friend, it

should now, as a general rule, be held that

the value of (those) services should not

reduce the -

award. So that, in my submission, what he is

saying is, the simple fact that there has not been

a charge for them and a payment out for them should

not diminish the plaintiff's recovery. Equally I

would concede that the fact that they have been

charged at an inappropriately low rate should not

diminish the plaintiff's recovery, but, for the
reasons I have submitted, that is not the situation

here, in any event.

McHUGH J: Yes, thank you.

MR PITT: If the Court pleases.

MASON CJ: Yes, thank you, Mr Pitt. Yes, Mr Ayliffe.

MR AYLIFFE: If the Court pleases. Your Honours, only two

points in reply: the first is that in this

particular case, the finding of the trial judge was

that it was preferable and he quoted, with

approval, at page 46, in volume 2 of the appeal

book, evidence from Dr Burges-Watson that the

Van Gervan(2) 73 27/5/92

plaintiff would be devastated if he were removed

from the care of his wife. So, I would submit that

it is not a marginal situation. It is clearly

preferable that he remain in his home nursed by his

wife.

In my submission, that is the compensable

situation which needs to be addressed, not the

Woodhouse scenario. I would submit, with respect,

that the approach that I invite Your Honours to

take would encourage and compensate on the basis of
the best care available rather than an inferior

basis of care.

So far as my friend's point about sustenance

is concerned, it is my submission that that is not

relevant to the 7.5 years whilst the wife will be
looking after the appellant. There is no
suggestion that the carer will be supplying his

sustenance.

Finally, Your Honours, in relation to the

matter raised by Your Honour Justice Gaudron as to

the 20 per cent allowance, it is true that there

has been no allowance in relation to the 7.5 year

period whilst the appellant will be cared for by

his wife in relation to the respite. Nevertheless,

it is my submission that that has been balanced

because the 20 per cent has been applied across the

board; that is to the latter period of his·life of
5.5 years, as well as to the earlier period of his

life after the judgment of 7.5 and that negates any

advantage that my friend seeks to derive from that

factor.

The only other point I would make,

Your Honours, is that I have had handed up a copy

of table 2 from Luntz referable to those

calculations that I put in in my submissions.	The
calculation for 7.5 years has been obtained by
using the appropriate multiplier for 7 years and

the appropriate multiplier for 8 years.

McHUGH J: It is $351, is it?

MR AYLIFFE:  And dividing by two. If it please

Your Honours.

MASON CJ:  Thank you, Mr Ayliffe. The Court will consider

its decision in this matter.

AT 3.22 PM THE MATTER WAS ADJOURNED SINE DIE

Van Gervan(2) 74 27/5/92