MORGAN and ORS v GIBSON

(2) Griffiths v Kerkemeyer damages are not discounted by reason of the fact that others may or do derive a benefit from the service provided to the plaintiff.

(3) The cost of providing a particular service must be reasonable.

(4) A plaintiff is entitled to be compensated so as to restore her to the position she would have been in had it not been for the accident and it is, therefore, a subjective test that applies.

Meagher JA This is an appeal from the decision of her Honour Judge Tupman of the District Court, delivered 28 June 1996.

The proceedings before her Honour were confined to an assessment of the quantum of damages arising out of the respondent's injuries sustained in a motor vehicle accident which occurred on 6 July 1990. The matter fell to be determined pursuant to the provisions of the Motor Accidents Act 1988 ('the Act"). Her Honour awarded a substantial sum reflecting the serious injuries sustained by the respondent. Damages were awarded pursuant to s72 of the Act, which section modifies the common law principle for which the case of Griffiths v Kerkemeyer (1977) 139 CLR 161 is best known. At the relevant time, s72 read in part:

"72(1) An award of damages shall not include compensation for the value of services of a domestic nature or services relating to nursing and attendance which have been or are to be provided to the person in whose favour the award is made by a member of the same household or family as the person, except in accordance with this section.

"72(2) No compensation shall be awarded unless the services are provided, or are to be provided, for not less than 6 months and may be awarded only for services provided or to be provided after the 6 month period.

"72(3) No compensation shall be awarded if the services would have been provided to the person even if the person had not been injured by the motor vehicle accident.

"72(4) No compensation shall be awarded unless the services provided or to be provided are not less than 6 hours per week and may be awarded only for services provided or to be provided after the first 6 hours."

Her Honour, applying correctly the various caps, thresholds and deductions, awarded over $25,000.00 for past Griffiths v Kerkemeyer damages and over $106,000.00 for future Griffiths v Kerkemeyer damages. It is solely from the awards of damages under those heads that the appellant appeals, on the following bases:

ii that others would derive a benefit from the domestic assistance rendered to the respondent (and that, accordingly, the award should be discounted);

iii that her Honour applied an incorrect principle to the determination of the respondent's need for domestic assistance, namely that the respondent was entitled only to her reasonable needs and not to be restored to the degree of cleanliness (referred to as "obsessive") that she had actually enjoyed; and

iv that the number of hours of domestic assistance allowed was excessive.

It is settled law that the basis of a Griffiths v Kerkemeyer claim is the need of the plaintiff for those services to be provided, irrespective of whether that need is or may be productive of financial loss: Van Gervan v Fenton (1992) 175 CLR 327 at 333. Significantly, that case also rejected previous authority to the effect that domestic services which would have been provided in any event (for example, as an ordinary incident of the family relationship) were to be discounted. $72(3) has the clear effect of reinstating that previous authority, in line with the other provisions of the section limiting the amount of damages awardable by making applicable various caps, thresholds and deductions. However, the section does not operate to change the nature or basis of an award as settled in Van Gervan v Fenton.

Thus, whether or not others derive a benefit from the services provided to the injured person is irrelevant to the measure of the damages awardable. It was noted, for example, that the respondent needed and received assistance in lifting heavy items from the oven. Learned Senior Counsel for the appellant, Mr O'Connor QC, accepted that the result of his argument would mean the respondent was entitled only to the cost of lifting so much of the roast that she ate. The respondent is clearly entitled to the cost of lifting the whole roast; her "need" is for such assistance as is necessary to counteract her inability to lift the meal from the oven.

A further proposition was that other members of the respondent's family derived a benefit from having the gardening performed. S72 makes it quite clear that, once the relevant "need" is established, it is the number of hours of work actually performed for the plaintiff that is used to measure the damages awardable. Because the respondent is not entitled to the cost of assistance which she would have in any event received, it is the number of hours of assistance that she requires to perform that part of the gardening which she would have performed herself for which she is compensated, provided that assistance is actually provided. It is nonsense to suggest that, because others may also derive a benefit, the respondent's inability to perform the gardening she used to perform, is in some way a "need" which must be discounted. If the contrary were accepted,

the basis of the principle would no longer be "need", but "need" less "benefit to others".

Much was made of the fact that the respondent was a serious cleaner. The appellant's view was that she was an obsessive cleaner and that her Honour erred in holding that the appellant pay Griffiths v Kerkemeyer damages to the extent that restored the respondent to her high standards. It was argued that it was "unreasonable that the Appellant be required to provide for those services to the standard of an obsessive housekeeper". The purpose of damages in tort is to restore the injured person to the position that they would have been in had they not suffered from the negligent act or omission: Livingstone v Raywards Coal Co (1880) 5 App Cas 25 at 39; Haines v Bendall (1991) 172 CLR 60 at 63, per Mason CJ, Dawson, Toohey and Gaudron JJ. Determining that someone has a "need" necessarily involves an investigation of the subjective requirements of the particular person, who must be taken as she is found. An injured person's "need" may not be the same as that of an objectively reasonable person in the shoes of the injured person and determining what that fictitious person might require. It is the cost of providing the services that the particular plaintiff needs which must be reasonable.

Part of the respondent's lifestyle was to spend much time shopping for the purpose of finding the "best bargain", an occupation she greatly enjoyed. The evidence before her Honour was that the respondent's husband now accompanied her on her shopping expeditions, which lasted from 10.00am to 5.00pm. The husband indicated that he believed he could perform it, unaccompanied, in a period of one and a half to two hours; the daughter in two and a half. Her Honour noted that these shopping expeditions constituted one of the respondent's only weekly outings and allowed her to keep a modicum of control over her household. For the purposes of Griffiths v Kerkemeyer damages, her Honour allowed five hours. The appellant argued that her Honour fell into error in taking into consideration the fact that these expeditions were, in effect, of psychological benefit to the respondent. It was argued that it was not reasonably necessary for the respondent's husband, Mr Gibson, to take his wife on the expeditions, to fulfil her need to have the shopping done. But that is not the only need that is being satisfied. In some cases, the plaintiff's "need" for Griffiths v Kerkemeyer purposes is simply a need for the provision of food; in others, it is a need for the provision of assistance in obtaining food. Her case was clearly of the latter kind.

It is not difficult to imagine that a person so proud of keeping an orderly household would suffer from being unable to contribute or assist in that area which was her domain. In this way, the shopping expeditions took on a therapeutic quality. Mr Gibson was providing a service which the respondent needed and which is properly to be viewed as in the realm of the type of services for which Griffiths v Kerkemeyer damages are awarded. If Mr Gibson would have accompanied his wife for the same period of time in any event, then the expeditions would be ignored for the purpose of measuring Griffiths v Kerkemeyer damages as a result of s72(3). However, this was a defence which did not arise on the facts.

The findings of her Honour as to the various lengths of time over which the respondent subjectively needed assistance and did receive assistance (and would receive assistance in the future) were findings open on the evidence, certainly sufficiently open as not to attract appellate intervention: Abalos v Australian Postal Commissioner (1988) 171 CLR 167. Similarly, her Honour's award was not grossly disproportionate so as to attract appellate intervention: Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118.

(1) Appeal dismissed with costs. Counsel for the appellant: C E O'Connor Solicitors for the appellant: Curwood & Partners Counsel for the respondent: J M Gormly