Vraga v Australian Mutual Provident Society

[2001] QDC 34

DISTRICT COURT OF QUEENSLAND

CITATION:	Vraga v. Australian Mutual Provident Society [2001] QDC 034
PARTIES:	PAUL VRAGA Plaintiff And AUSTRALIAN MUTUAL PROVIDENT SOCIETY

Defendant

FILE NO/S:	4168 of 1996
DIVISION:	Civil jurisdiction
PROCEEDING:
ORIGINATING	Brisbane
COURT:
DELIVERED ON:	28 February 2001
DELIVERED AT:	Brisbane
HEARING DATE:
JUDGE:	Judge Forde
ORDER:	The plaintiff is entitled to claim the pretrial Griffiths v. Kerkemeyer in a claim under s.66 of the Succession Act.
CATCHWORDS:	Section 66 of the Succession Act 1991; Pretrial Griffiths v. Kerkemeyer able to be claimed
COUNSEL:	Mr J.Costello for the plaintiff Mr Fitzsimons for the defendant
SOLICITORS:	Carter Capner Solicitors for the plaintiff Deacons Lawyers for the defendant

1. This action was originally a claim by Paul Vraga for damages as a result of a slip

   which occurred at premises occupied by the defendant, Australian Mutual Provident

   Society. This morning leave was granted to substitute his personal representative

   Grace Vraga as the former plaintiff passed away on 29 November 2000.

2. A preliminary point has arisen as a result of his death in the action as it is now

   constituted and that is whether, pursuant to s.66 of the Succession Act 1991, the present plaintiff can sue for pretrial Griffith v. Kerkemeyer. The provisions of

   section 66 are as follows:-

   “(1) Subject to the provisions of this section and with the exception of causes of action for defamation or seduction, on the death of any person after 15 October, 1940, all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate.

   (2) Where a cause of action survives pursuant to subsection (1) for the benefit of the estate of a deceased person, the damages recoverable in any action brought -

   (a)        shall not include damages for pain and suffering, for any bodily or mental harm of for curtailment of expectation of life;

   (b)        shall not include exemplary damages;

   (c)        in the case of a breach of promise to marry, shall be limited to damages in respect of such damages as flow from the breach of promise to marry;

   (d)        where the death has been caused by the act or omission which gives rise to the cause of action shall be calculated without reference to -

(i) loss or gain to the estate consequent upon the death

save that a sum in respect of funeral expenses may be
included;

(ii) future probable earnings of the deceased had he
survived.”

1. The Court of Appeal in Western Australia in a decision of Harper v. Phillips (1985)

   Western Australian Reports 100 decided, in applying similar provisions under the

   equivalent legislation, that damages were recoverable as they should be regarded as

   economic loss and they were not damages for pain and suffering or bodily or mental

   harm suffered.

2. If the philosophy behind the Griffiths v. Kerkemeyer damages being allowed were

   as stated in Harper v. Phillips then that case of course would clearly be apposite

   and applicable.

3. It becomes a question of whether in fact the Full Court of Western Australia was

   correct or not in so categorising the damages. The High Court, in a case of Van

   Gervan v. Fenton, (1991-1992) Volume 175 CLR 327 at 332-3 stated-

   “The approach of Gibbs J. however is inconsistent with the approach of the Court of Appeal in Donnelly (28) which Stephen and Mason JJ. Adopted in Griffiths. In Donnelly, the Court of Appeal made it clear that the plaintiff’s loss was ‘the existence of the need’. The approach of Gibbs J. is also inconsistent with what Stephen J. called (29) ‘the principle that it is for the plaintiff’s loss, represented by his need, that damages are to be awarded’ and with the statement of Mason J. (23) that the plaintiff’s ‘relevant loss is his incapacity to look after himself as demonstrated by the need for nursing services’.

   Thus, the important difference between the judgment of Gibbs J. and the judgments of Stephen and Mason JJ. in Griffiths is that, while Stephen and Mason JJ. were of the opinion that the plaintiff’s damages are to be calculated by the need for the services, Gibbs J. thought that that was a necessary but not a sufficient condition of liability. In the opinion of Gibbs J. (27), the satisfaction of the need is not sufficient unless the need ‘is or may be productive of financial loss’. But to add this requirement is to g as close as is possible to treating the claim as a claim for special damages. Yet the Griffiths v. Kerkemeyer doctrine was only made possible by rejecting the established common law rule that, in an action for damages for tort, the reasonable cost of services required as the result of the tort is a claim for special damages and can only be recovered if the plaintiff has a legal (or perhaps a moral or social) obligation to pay for them (30). As Stephen J. pointed out in Griffiths (31), the principle laid down in Donnelly

   ‘deprives of all substantive significance the distinction between special and general damages: if a plaintiff’s accident-caused need is the loss to be compensated, the reasonable cost of satisfying that need being only a means of quantifying the damages to be awarded, the distinction between these two kinds of damages becomes unreal’.

   Although the judgment of Gibbs J. in Griffiths has frequently been cited as though it contained the ratio decidendi of Griffiths (32), it was a dissenting judgment on the point of principle. Significantly, in Nguyen (33) Dawson, Toohey and McHugh JJ. interpreted Griffiths as holding that ‘the plaintiff’s loss … was represented by [his]need’.

   Consequently, it should now be accepted that the true basis of a Griffiths v. Kerkemeyer claim is the need of the plaintiff for those services provided for him or her and that the plaintiff does not have to show, as Gibbs J. held, that the need ‘is or may be productive of financial loss.’”

4. Although the decision of Gibbs J. as he then was is referred to on various

   publications, it was not the majority decision on that point of principle. For

   example, in the discussion by Luntz 3rd Edition para 1.6.1 in the note thereto the

   learned author was speaking of the difference between special damages and general

   damages. He stated that:

   “Similarly it might seem inappropriate to continue to make the distinction in relation to medical and similar expenses once it is recognised that it is the need created by the injuries that gives rise to a claim for damages not the expenditure as such.”

5. The author then referred to the decision of Stephen J. in Griffiths v. Kerkemeyer at

   pages 179-180. He then referred to the decision of Harper v. Phillips where he said

   that although the Full Court differed as to whether the damages under this head

   were sufficiently quantifiable t be called “special”, nevertheless correctly held that

   however classified the damages did survive to the estate.

6. In the publication “Personal Injury Litigation Queensland” by Griffin et al at page

   7507 the authors said:-

   “The majority in Van Gervan’s case at CLR 335 held that it was not reasonable to reduce the defendant’s liability to pay damages at the indirect expense of the provider by invoking notions of marital or family obligation to provide the services … As it is the ‘need’ that is being compensated, and not the expenditure itself, then damages may still be awarded under this head even where the plaintiff has not received reasonable domestic assistance.”

7. The authors at that page referred to the fact that the view of Justice Gibbs was about

   whether the need “is or may be productive of financial loss” was rejected by the

   High Court in Van Gervan.

8. What the learned author said there basically is that whether or not the view of Gibbs

   J. was correct, the cost of meeting the needs provided the measure of damages

   under this head.

9. In the more recent decision of Grincelis v. House, (2000) ALJR 1247, that aspect is

   further reinforced where, in the joint judgment of the majority, at page 1250 in

   speaking about the applicability of commercial interest rates to this head of damage

   it referred to the decision of Van Gervan and stated that:-

   “It was held in that case that ‘the true basis of a claim for damages’ was with respect to care or services provided gratuitously to as person who has suffered personal injury is the need of the plaintiff for those services not the actual financial loss suffered as a result of their provision.”

10. The Court went on to state that determining the actual cost is by reference to the

    market costs and stated at page 1250:-

    “The sum allowed was awarded in satisfaction of the need of care,
    not the cost incurred in providing it.”

11. It is not helpful to attempt to categorise this type of damage, as was done in

    Harper’s case. Rather, it becomes a question of whether the legislature has in fact

    excluded the rights of the personal representative to recover damages for pretrial

    Griffiths v. Kerkemeyer. As was held in Harper’s case, in dealing with similar

    legislation, a claim does not fall within the definition of “payment for pain or suffering or bodily or mental harm suffered”. To that extent, that decision is

    relevant.

12. The plaintiff is entitled to claim the pretrial Griffiths v Kerkemeyer in a claim under

    s.66 of the Succession Act.