Van Gervan v Fenton

Van Gervan v Fenton - [1992] HCA 54 - HCA 1984 case summary — Zoe

[24]

Once it is recognized that it is the need for the services which gives the plaintiff the right to an award of damages, it follows that the damages which he or she receives are not determined by reference to the actual cost to the plaintiff of having them provided or by reference to the income forgone by the provider of the services. As Stephen J. pointed out in Griffiths [17] , the principle laid down in Donnelly "is concerned not with what outlays of money the plaintiff will in fact incur as a consequence of his injuries but with the objective monetary "value" of his loss". Because the market cost of services is ordinarily the reasonable and objective value of the need for those services, the market cost, as a general rule, is the amount which the defendant must pay as damages [18] . But in some cases the market cost may be too high to be the reasonable value of the services. Where, for example, the cost of providing the services at a remote location is much greater than providing those services in a densely populated area, it might be necessary to discount the market cost or value of the services needed by the plaintiff on the ground that the market cost or value was unreasonable in the circumstances. In other cases, there may be so little competition to provide the services that, judged objectively, the market cost is not the reasonable value of the services. No doubt the circumstances of particular plaintiffs may reveal other cases where the market cost of the services provided is not the reasonable value of the services reasonably needed. But the case will be rare indeed where the income forgone by the care provider is ever an appropriate guide to the fair value of the services required by the injured person. Whether the income forgone is below or above or equivalent to the market cost, the income forgone will usually be irrelevant, for the market cost will ordinarily represent the objective value of the services. Where there is no relevant market for the services or the market cost is objectively too high to be reasonable, the income forgone may be a starting point in cases where the nature and duration of the services provided and the previous work and hours of the care provider are roughly comparable, but such cases are likely to be rare.

[48]

The basis upon which the appellant was entitled to damages in respect of "[f]uture nursing care" was his entitlement to be compensated for any loss of capacity to look after himself which was caused by the accident [28] . In a case such as the present where the accident-caused loss of capacity makes it necessary for an injured plaintiff to be assisted for ordinary living purposes by the services of others, the reasonable cost or commercial value of services which are or will be provided or obtained to attend to the plaintiff's accident-caused needs constitutes a prima facie reference point for quantifying the additional injury (i.e. over and above pain, suffering and loss of enjoyment of life) represented by that loss of capacity. In that regard, compensation will ordinarily not be payable to an injured plaintiff in respect of services which were or would have continued to be provided without charge to him or her in any event. Thus, for example, an injured person whose injuries required constant supervision would not be entitled to damages in respect of the commercial value of supervisory services which are, and would have been in any event, provided by the supervisors of a public institution of which he or she is and would in any event have been a non-paying resident. On the other hand, the fact that any additional services necessary to accommodate the plaintiff's accident-caused needs are or will be gratuitously provided by a relation or friend will not prevent the commercial value of those services from being taken into account in assessing damages for the relevant loss of capacity. Thus, in Griffiths v. Kerkemeyer [29] , this Court held that the fact that "nursing services" necessary to care for a quadriplegic had been and would be gratuitously provided by a relative or friend did not preclude regard being had to the market value of those services in assessing damages for the injury sustained by the accident-caused loss of capacity. It is true that that approach blurs, and goes very close to extinguishing, any distinction between general damages for loss of capacity and special damages for outgoings which have been or will be actually incurred as a result of the accident. As Stephen J. pointed out in Griffiths v. Kerkemeyer [30] , however, the distinction between special and general damages has little conceptual relevance to torts such as negligence where identified special damage is not a prerequisite of the cause of action.

[52]

The assessment of damages for personal injuries in a negligence action is not an exact science. It must always be governed by considerations of practical common sense in the context of the circumstances of the particular case. It may be that, if the appellant had not been married, it would have been reasonable, for the purposes of assessing damages, for him to have continued to live at home and to have employed the services of a seven-day-a-week live-in housekeeper to attend to his accident-caused needs during the period of seven and a half years following the trial. The facts of the matter were, however, that the appellant was and was likely to remain a party to a stable marital relationship and that the ordinary incidents of that relationship and the give-and-take activities of the parties to it provided a significant part of the active services and passive attendance in and about the matrimonial home which were necessary to look after the appellant's accident-caused needs. In assessing compensatory damages in that context, the ordinary incidents of a particular continuing relationship, such as joint activities and companionship, cannot, in our view, legitimately be seen as transformed by the injury to one spouse into "services" rendered or to be rendered by the other spouse even if they obviate a need for such "services" which would otherwise exist. Nor, subject to an important qualification, can domestic services which are undertaken, as part of the mutual give-and-take of marriage, by persons in a marital relationship for the benefit of one another and of their matrimonial establishment, legitimately be seen as converted into additional services necessary to attend to the accident-caused needs of an injured plaintiff in circumstances where they would have been performed in the same way and to the same extent in any event. The qualification is that such services will be taken out of the area of the ordinary give-and-take of marriage to the extent that the injuries to the wife or husband preclude her or him from providing any countervailing services. To that extent, the continuing gratuitous services provided by the spouse assume a different character and should be treated as additional services which have been or will be provided by that spouse to look after the accident-caused needs of the injured plaintiff.

[53]

It is clear that, in the present case, the additional services which are being and will be provided by the wife to attend to the appellant's accident-caused needs during the relevant period are very extensive. They involve both active care and protective attention to an extent that represents an oppressive restraint upon the wife's freedom of activity. It was clearly reasonable that the appellant's damages for loss of capacity include a substantial amount calculated by reference to the value of those additional services and that, in ascertaining the extent of the wife's additional services, account be taken of the drastic curtailment of the appellant's ability to do things for his wife (and himself) in return. Nonetheless, it would be illegitimate to treat the burden of additional care which the wife has assumed in the context of a devoted marriage and in the environment of her own home as converting her into the equivalent of a full-time live-in housekeeper to be remunerated not only for the active services which she renders to her husband but on the basis that time spent with her husband in her own home is to be treated as if it were services rendered to a stranger in a strange environment. On the other hand, as Green C.J. and Crawford J. pointed out in the Full Court, the value of the plaintiff's additional services could not be directly equated to the income which the wife would otherwise have earned in her previous employment as a nurses' aide. For one thing, the hours, quality and intensity of the plaintiff's work as a nurses' aide greatly differed from what was involved in her care of the appellant. For another, the appellant's wife did not completely give up outside work when she resigned but has continued to do occasional work as a nurses' aide on a casual basis [31] . Nonetheless, it appears to us that, in the particular circumstances of this case, the amount awarded by Cox J. by reference to what the appellant's wife had earned in the past from her full-time employment as a nurses' aide represents a fair and adequate estimate of the market value of the additional services which would be provided by her to look after the appellant's accident-caused needs during the relevant period of seven and a half years. As Green C.J. pointed out:

At a glance

Court

Decision date

Before

Source

Judgment (78 paragraphs)

Parties