Van Gervan v Fenton

[1991] HCATrans 145

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No H3 of 1991

B e t w e e n -

LAMBERTUS VAN GERVAN

Applicant

and

ANDREW ARTHUR FENTON

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 7 JUNE 1991, AT 3.35 PM

Copyright in the High Court of Australia

Van Gervan 1 7/6/91

MR W.A. AYCLIFFE: If it please the Court, I appear with my

learned friend, MR R.A.S. BAKER, in relation to

this application. (instructed by Baker Tierney &

Wilson)

MR K.A.M. PITT, QC: If it please the Court, I appear with

my learned friend, MR C.G. WOODHOUSE, on behalf of

the respondent.

MASON CJ: Yes, Mr Pitt. In the circumstances, I think that

we will afford Mr Pitt the opportunity of

persuading us in the first instance that special

leave should not be granted, because this question,

which arises under Griffiths v Kerkmeyer in terms

of valuing the services that are needed, seems to

be an important one on the face of it.

MR PITT:  May I just ask Your Honour to repeat those last

few words. Was that seen to the Court to be a

matter of general principle?

MASON CJ: Prima facie, yes.

MR PITT:  My first argument, Your Honours, really goes

directly contrary to that proposition because

MASON CJ: Well, that is what we are inviting you to argue.

MR PITT: Thank you. In my submissions, the matters that

are raised by my learned friend can be compressed

in their essence to two separate possible

propositions. One is that there has been an error

of general principle in the way that the Full Court
and the judge below has stated the principle in

Van Gervan. Alternatively, it is that there has been an error in the way that the general principle

properly stated, as in Van Gervan, has been applied

to the particular facts and in the particular

circumstances, and as a matter of degree in the

case involving Mr Van Gervan himself.

The essence of my answer to that,

Your Honours, before I go to the details of it, is

that the principle which is stated in the Griffiths

v Kerkmeyer case by the Justices who heard, is best represented by His Honour Mr Justice Stephen and by Your Honour Mr Justice Mason, as you then were, and

Mr Justice Stephen said, in substance, that the

question is one of valuation, looking of all of the

circumstance, including the question of market

value. Your Honour Mr Justice Mason said, in

substance, that the general rule is that the market

value should be the principle upon which the

damages are assessed. Neither of those statements,

in my respectful submission, excluded the operation

of principles such as the principle of mitigation

of damages; of principles such as the concept of

Van Gervan 7/6/91

reasonableness, so that where there are two

different methods of satisfying a need, the

plaintiff ought be awarded the mode which is the

least expensive and the concept, of course, of

mitigation of damages as it appears in that

particular context.

MASON CJ:  How can it be right to equate the cost of the

need with the amount of income earned by the wife

which she has given up in order to nurse the

applicant?

MR PITT:  Your Honour, if that were a bald proposition

standing by itself, I would resume my seat, because

I do not believe that that can be defended. What,

in my submission, the court did and what the whole

process that has been gone through, not only in the
Van Gervan case, but in the other cases such as,

Veselinovic v Thorley, and in Kovac, is to say that the plaintiff is entitled to such a sum as will

enable his needs caused by the accident to be

properly met. In the particular circumstances of

this case and of those cases, I submit the

reasoning goes: the proper award is, in fact,

represented by the amount which the wife has given up. In the particular circumstances of this case, the result was reached by saying, "Well this is

what Mr Van Gervan needs.	He needs someone to be
with him for most of the time.	The kind of care

that he needs is not care of a full nursing kind;

is not intensive in the sense of requiring every

moment to be devoted to him, and is not care which

demands attendance at a different place". And in

the circumstances of this particular case it was said it was the most appropriate course that the

wife should, while Mr Van Gervan was able to remain

at home and while she was able to care for him,

continue to do so, and that in the particular
circumstances of that case it would be quite

artificial and inappropriate to conceive of someone

coming in from outside on the kinds of commercial

rate which involve the attendance of an outside

agency, a stranger to Mr Van Gervan, and someone

whose services represent - the cost for whose

services represented - an element of profit.

It would have been, the court said, an

entirely artificial situation. It would not have

represented the application of the particular

principles of mitigation of loss; that is by

selecting the cheapest of the reasonably available

alternatives. It would not have represented the

kind of "reasonableness" doctrine, or the

application of the kind of "reasonableness"

doctrine which was adverted to in Sharman's case.

Van Gervan 3 7/6/91

McHUGH J:  What has mitigation got to do with it in this

context? I mean, in this situation the husband is

a mendicant; the wife provides these services

gratuitously for him. It is not a question of

mitigating his loss in any way.

MR PITT:  Your Honour, in my submission, it is in this

sense, that if the award that is given to him

represents simply a commercial rate, then that is
notionally selecting an alternative which is a

totally artificial one in this particular case.

McHUGH J: Supposing she leaves him tomorrow, what happens

then?

MR PITT:  Then he would be out of pocket, I would accept

that, Your Honour.

McHUGH J: Exactly.

MR PITT: But the factual basis in this particular case,

Your Honour, was that it was accepted, and it was

accepted in the case below, it was accepted on

appeal and it was never put to the contrary that

that was a significant risk. In fact, the

findings - - -

McHUGH J:  But she might die. I mean, how can the value of

the services which he needs be evaluated by

reference to what she was earning in her job,

particularly when she has got to work longer hours

looking after him than she did in her job?

MR PITT: Well, to take that latter point first,

Your Honour, the longer hours, in my submission,

are only one aspect of the facts. The longer hours

were hours spent in her own time, in her own home,
doing things at a much lesser intensity than she

used to do in her own job, and at times which she

was able, to some degree, to select and to control,

and so that it was not an answer in that particular	aspect of it, to say, well, these were longer
hours, and that matter was specifically adverted to
by the trial judge and by the justices who heard
the appeal.

McHUGH J: But the problem is that you have got adjoining

neighbours, both plaintiffs with similar injuries

requiring similar care; their compensation for the

services that are provided for them varies,

depending upon what the income of their spouses was

that has been foregone. Well that, really, cannot

be right, can it, as a measure of the value of the

services provided?

MR PITT: If, Your Honour, it were predicated solely by

reference to the moneys that the spouse had given

Van Gervan 7/6/91

up in each case, without consideration of the other

factors, I would accede to that, but here I would

submit the result arises from a consideration not

only of the moneys given up by the wife, but a

consideration of whether that represents, in this

particular case, a reasonable sum to compensation

for the plaintiff for the needs that were caused by

the accident.	He did not need a full-time
commercial carer.	He needed only someone who was

able to provide services in the way in which his

wife could and did, so that if the result were

reached in each of those two different cases in

that way then, in my submission, that would not

represent an apparent injustice.

McHUGH J: Will you concede it is an arguable case of some

importance?

MR PITT:  I concede, Your Honour, that the principle in

Van Gervan is a matter of public importance and of general principle. What I, with respect, do not

concede, is that this is anything other than the

application of that principle to the particular

facts of this case which have resulted in the

particular result that it has. Just in the same

way, Your Honours, that the result in Donnelly v

Joyce in England was a result of a particular

application of the same kind of principle, although

it was stressed in that case as well that this was

a matter where the relevant test was the need which

was caused by the accident, but it happened in that

case that that was the claim that was made and it

happened that that was the award or the result that

was reached by the ~ourt.

Did Your Honours wish to hear me, at this

stage, also in relation to the question of whether

this was an appropriate case for the grant of

special leave in the context of - - -

MASON CJ:  Oh yes. That was the point of my brother

McHugh's question to you.

MR PITT: In the particular context, Your Honour, of whether

there has been a miscarriage of justice in this

case, because my second submission, following upon

my learned friend's address, would have been that

in this particular case there was no apparent

miscarriage of justice - - -

MASON CJ:  What do you mean by that?

MR PITT: That there was no apparent under-award of the

plaintiff in respect - - -

Van Gervan 5 7/6/91

MASON CJ:  You mean that even if a wrong principle were

applied none the less the plaintiff secured

appropriate compensation?

MR PITT: That is my submission, Your Honour, yes.

MASON CJ:  How do you intend to make that out?

MR PITT: Well, Your Honour, by reference to the particular

facts of the case and in substance, I would submit,

first of all that the remuneration that was given

to him was predicated upon the basis of the period

for which he was expected to remain in the home,

which was somewhere between five and ten years;

secondly, that the evidence was that he would be

better off at home and that it was accepted that he

would be better off at home in the care of his wife

for as long as it was expected that she was able to

look after him which, again, was somewhere between

five and ten years, before he would have to go into

an institution, the cost of which was separately

allowed; thirdly, because he has incurred the

lowest of the reasonably available alternative

costs in the satisfying of that need, and fourthly

because his wife is not placed in the position of

any significant sacrifice, that is, that she

receives what she would have done by going to work,

but she no longer has to go to work, and in that

particular context I would submit the extent of the
hours, the question of the intensity of her work,

the question of what she actually has to do for him, and the extent to which that collates with what she would otherwise have done in any event,

that is, in the sense of cooking meals, cleaning and the like, all of them, in my submission, are matters which make it reasonable to take some

amount very much less than the cost of employing a

commercial person to come in 24 hours a day, or 16 hours a day, as my learned friend's argument would

have had it, would have been.

It is also, in my submission, important to

note that even on the rate that was taken, the

commercial carer for an eight hour day would have

cost $48 a day and for the times that the wife

would have been away, that is, five days a week at
her work, that comes to something less, by about

$30-odd, than the amount of of $277 a week which was the basis upon which the learned trial judge predicated the award, or calculated the award in

this particular respect. So that it is an award

which has a little slack in it, as it were. That

relates to the specific aspect of the award,
Your Honours, but so far as the overall award is

concerned, if one looks at the way that the total

award that was given at first instance, and then

increased on appeal, is concerned, the plaintiff is

Van Gervan 6 7/6/91

a man of 65 years; he is spending somewhere between

five and ten years at home being cared for by his

wife and then, it is expected, would enter an

institution, and he has received, in respect of the

injuries which he has, and the state to which he

has been reduced, a little over $380,000, and

looked at in the round, and as an overall award, in

my submission, it could not be said of that sum, in
the circumstances of this case, that that was a

manifestly unreasonable result, or one which would

not be capable of being reached by a reasonable

tribunal.

So that, in my submission, there has been no

apparent miscarriage of justice in the sense that

the final result, even if one were to accept that

there had been a wrong application of principle,

were reached.

McHUGH J: There must be a miscarriage if the wrong

principles have been applied and he has got a

lesser sum than he otherwise would have got.

MR PITT: If, Your Honour, he has got a lesser sum than he

otherwise would have got, I would accept that. My

submission though is that, irrespective of how it

were calculated, unless one were to accede to the

arguments of the plaintiff and the applicant here,

then one would not be calculating the award upon

the basis of the full time attendance and the award

on the basis of 15 hours per day for commercial

rates of the outside carer: that simply would not

be the way in which any court, I would submit,

having heard the facts in this case, would have

done it. The hours were longer than a 40-hour

week, but the work was less. It simply would not
have represented, in my submission, reality and it
would not be expected that a different result, of

any substance, at least, would have been reached by

a court applying the ordinary principles in the

Griffiths v Kerkmeyer case.

So that, for that reason, in my submissions,

there was no apparent miscarriage of justice in the

matter, even though, if one assumes and concedes

the argument that a wrong principle were adopted.

But, if I may, Your Honours, return to the original

point just for a moment. In my submission, it was,

in fact, not the application of a misstatement of

the principle in Griffiths v Kerkmeyer, but it was

rather the application of that principle truly

stated, that is that in general terms it is the

commercial rate, or that, having regard to all the

circumstances, including the commercial rate, the

amount should be predicated, that it was the

application of the principle truly stated in that

way to the particular facts of this case, and that,

Van Gervan 7/6/91

in that sense, I would submit, this is simply one

example of myriad examples of the way in which the

principle in Griffiths v Kerkmeyer is stated, and

it is not, in that respect, I would submit, a

matter where the general principle requires either

elucidation or any alternation. It is not a

respect in which the Supreme Court of Tasmania, in

fact, went or erred.

Your Honours, the justices of the Supreme

Court of Tasmania adverted specifically to

Griffiths v Kerkmeyer, each of them in the

particular portions of the - - -

MASON CJ: Well, we have read the judgment.

MR PITT: Yes. Well, Your Honours, my submission is that it

can be seen, with respect, that they truly stated

the principle in Griffiths v Kerkmeyer, but then in

the application of the principle to the particular

facts of this case, they then sought assistance

from the other doctrines which have been referred

to and, in particular, those of mitigation, of

reasonableness and the like, in order to reach the

final result which they did, and that it was not

simply the application of the proposition, "Well,

here is the wife's loss. This is what we will

award him"; that it took account of all of the
other factors that I have adverted to and in fact
they specifically went through each of those items.

So that in that respect, in my submission, there was not an error of principle by the Full

Court or the trial judge, and in respect of that as

well, Your Honours, in so far as the proposition in

Veselinovic v Thorley is concerned, that is that,

prima facie, the measure in these particular

circumstances represents the test. Prima facie,

the wife's loss of income in these particular

circumstances represents the test. That, in my

submission, was merely the application of the

general principle again to particular
circumstances, and it is a proposition which only

one of the members of the Full Court, that is

Mr Justice Wright, in fact, specifically adopted.

Mr Justice Crawford specifically eschewed it and

His Honour the Chief Justice made no mention of the

specific principle itself which might be thought to

constitute an error, and for those reasons, in my

submission, the Full Court properly stated the
principle in Van Gervan, even though they reached a

result which was consonant with, in fact, the loss

of wages by the wife. I am not able to advance the

matter any further in that respect, Your Honours,

and those are my submissions.

Van Gervan	8	7/6/91
MASON CJ:	Thank you, Mr Pitt.	The Court need not trouble

you, Mr Aycliffe. There will be a grant of special

leave in this case, but I should say that in the

event that the appeal were to succeed on the ground

that is being taken, it is distinctly possible that

the Court would remit the matter for reassessment

of damages rather than reassess the damages itself.

Yes, Mr Aycliffe.

MR AYCLIFFE:  I seek an order for costs.

MASON CJ: It is not customary to grant costs when you are

of the appeal.

fortunate enough to get a grant of special leave. included in the costs

MR AYCLIFFE: If Your Honour pleases.

AT 3.57 PM THE MATTER WAS ADJOURNED SINE DIE

Van Gervan 9 7/6/91