Van Gervan v Fenton

This matter concerns an application for special leave to appeal to the High Court of Australia. The parties involved are Mr Van Gervan, the plaintiff, and Mr Fenton, the defendant. The dispute centres on the assessment of damages for the plaintiff's needs arising from an accident, specifically the valuation of services required by the plaintiff. The application is before Mason CJ, Dawson J, and McHugh J.

The legal issues before the Court were whether there had been an error of general principle in the way the Full Court and the judge at first instance had stated or applied the principle for valuing the plaintiff's needs, as established in cases like *Griffiths v Kerkmeyer*. This included considering whether the principle of mitigation of damages and the concept of reasonableness, which suggest awarding the least expensive method of satisfying a need, were correctly applied. A specific question raised was how the cost of a need should be equated with the income earned by a wife who has forgone employment to provide nursing care.

The Court was invited to consider whether the principle articulated in *Griffiths v Kerkmeyer*, which focuses on valuation considering all circumstances including market value, excludes principles such as mitigation and reasonableness. The argument presented was that the plaintiff is entitled to a sum that will properly meet their needs caused by the accident. In the specific circumstances of *Van Gervan*, the reasoning adopted was that the appropriate award was represented by the amount the wife had given up in lost earnings. This was deemed the most appropriate course given that the plaintiff could remain at home and the wife was able to provide the necessary care, which was not of a full nursing or intensive kind requiring constant attendance.