Archive for Damages – Personal Injury

Compensation to relatives act: apportionable claim?


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Challenges to non-economic loss awards

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Exemplary damages: general principles and criminal penalty

Cheng v Farjudi [2016] NSWCA 316


[49] Because, as her Honour observed, the usual rule is that exemplary damages are not awarded where a person has been subject to a criminal sanction, I have found it appropriate to re-visit the principles governing such an award than might otherwise be necessary, those principles being well established.

[50] Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40 ; 117 CLR 118 was a defamation case arising out of articles in a newspaper that suggested an MP had been duped by a Russian spy. Windeyer J, at 153, made the following observations:

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Domestic assistance, need, pets and hobbies

Teuma and Anor v C P and P K Judd Pty Ltd [2007] NSWCA 166

[48] Mr Harben relied on Geaghan v D’Aubert (2002) 36 MVR 542 where Stein JA (with whom Handley JA and Foster AJA agreed) held that Griffiths v Kerkemeyer (1977) 139 CLR 161 services did not include the provision of care to an injured person’s pets or a hobby: see at 549 to 550, [61] to [66]. Leave was not sought to argue that Geaghan was wrongly decided and the appellants did not contend that it was. Accordingly, I do not propose to consider that question. I shall assume the correctness of the proposition upheld in that case.

[49] I would add, however, that, consistent with the authority of Van Gervan v Fenton (1992) 175 CLR 327, for damages to be awarded for the provision of care of family pets, Mrs Judd had to prove a need for those services. The mere fact that, by reason of her injuries, Mr Judd provides care for pets that, prior to her injuries, she provided, does not establish that she is in need of those services. The concept of “need” involves more than a mere desire. Compensation for need does not encompass compensation for services that are not reasonably necessary for the plaintiff’s well-being. No evidence of such a need was led in regard to the services provided in looking after animals. I therefore consider that Mrs Judd did not prove that she had such a need. Thus, in assessing damages under this head, the time taken by Mr Judd in looking after the animals must be excluded from the time he spends in providing domestic care.

[50] Mr Harben relied on Mr Judd’s evidence in cross-examination that he was providing domestic care for his wife as part of their relationship and because he cared for her. He submitted that the nature of the domestic care provided was part of the ordinary give-and-take of a marital relationship and did not give rise to a Griffiths v Kerkemeyer claim.

[51] In Roads and Traffic Authority (NSW) v Lolomanaia (2001) 34 MVR 249, Hodgson JA at [45], 255 referred to the view “taken as having been expressed by a four/three majority [in Van Gervan v Fenton]” that the fact that domestic services were provided before the injuries as part of the ordinary give-and-take of domestic arrangements is irrelevant to the determination of damages for gratuitous care. His Honour said at [46], 255 that he was not certain that this was the view of a majority of the High Court, but — if it was — it was obiter only, and “would be contrary to principle”; his Honour emphasised that “the compensation must be compensation to a particular person for the economic value of that loss to that person”. Davies AJA agreed with Hodgson JA but Fitzgerald AJA expressly refrained from expressing an opinion on the issue.

[52] In Matchan v Lyons (2004) 40 MVR 466, Hodgson JA at 468, [4] adhered to what he had said in Roads and Traffic Authority (NSW) v Lolomanaia and said:

In my opinion, there should be no compensation in respect of domestic care that is given as part of the fair give and take of family life, although there may be compensation for the contingency that care may not be given this way in the future.

[53] Only passing reference was made to Roads and Traffic Authority (NSW) v Lolomanaia and Matchan v Lyons in the course of the appeal. Hodgson JA’s observations were not the subject of argument. It was not suggested that the views expressed by his Honour in these cases were incorrect. Nevertheless, as the determination of damages for domestic care is governed by the correct application of Van Gervan v Fenton, I am required to deal with the issues that these cases raise.

[54] In Van Gervan v Fenton, the appellant (the husband) was injured to such an extent that his wife, who had been employed as a nurses’ aide, gave up work to devote herself on a full-time basis to caring for him. She needed to care for him for a very large part of the day.

[55] In Van Gervan v Fenton, Mason CJ, Toohey and McHugh JJ observed (at 335):

[F]airness to the provider as well as to the plaintiff requires that the plaintiff should have the ability to pay the provider a sum equivalent to what the provider would earn if he or she was supplying those services in the marketplace. It does not seem reasonable that the defendant’s liability to pay damages should be reduced at the indirect expense of the provider by invoking notions of marital or family obligation to provide the services free of charge …

[56] Their Honours repeated with approval (at 329 to 330) the statement made in Nguyen v Nguyen(1990) 169 CLR 245 (at 261 to 262 per Dawson, Toohey and McHugh JJ) that:

The fact that there were persons, prompted by motives of concern for the plaintiff, who were prepared to provide the services gratuitously was … not something which should diminish the damages to the advantage of the defendant.

[57] Their Honours observed (at 336) that the common law should seek to reduce, where possible, the uncertainty involved in the assessment of damages. Thus, it was undesirable for a court to have to take into account the uncertainties involved in finding whether care by a gratuitous provider would continue to be provided and, if so, for how long. They described this as a task of difficulty.

[58] Their Honours held that the true basis of a claim for damages with respect to gratuitous services is the need of a plaintiff for those services, and the plaintiff does not have to show that the need is, or may be, productive of financial loss.

[59] Brennan J was in general agreement with Mason CJ, Toohey and McHugh JJ, subject to one qualifying factor. His Honour said (at 341):

[I]t is appropriate to omit from the list of services to be paid for by the defendant some of the time spent or some of the minor services rendered by the care provider to the plaintiff where those services would have been provided in any event as an incident of an antecedent personal relationship between them, provided the plaintiff is able to offer services to the care provider in return. If the plaintiff is unable to offer services to the care provider in return, but some pecuniary allowance would be fair compensation to the care provider for the plaintiff’s failure to do so, the plaintiff should recover as damages the capital sum representing that allowance — assuming that sum does not exceed the market value of those services provided to the plaintiff by the care provider.

[60] Deane and Dawson JJ observed, at 343, that the facts of the case indicated that the ordinary incidents of a stable marital 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 injured person’s accident-caused needs. Their Honours said, at 343 to 344:

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.

[61] Deane and Dawson JJ observed further, at 344, that the additional services that the appellant’s wife had to provide were “very extensive”. They said that it was clearly reasonable that the appellant’s damages should be calculated by reference to those additional services. It is apparent from their Honour’s reasons that they considered that the appellant’s wife was providing services over and above the “additional” services. They were of the opinion that no damages should be awarded for those services not categorised as “additional”.

[62] Thus, an essential difference between Deane and Dawson JJ and Mason CJ, Toohey and McHugh JJ concerned the treatment of services undertaken as part of the mutual give-and-take of marriage. According to Deane and Dawson JJ, those services were not “additional services” for which the tortfeasor would be liable to pay damages. Mason CJ, Toohey and McHugh JJ, however, were of the view that, if there was an injury-caused need for such services, the tortfeasor was liable to pay compensation by way of damages for them.

[63] Gaudron J expressly agreed with the view of Mason CJ, Toohey and McHugh JJ that the plaintiff does not have to show that the need for domestic care is, or may be, productive of financial loss. Her Honour also agreed in the result proposed by Mason CJ, Toohey and McHugh JJ.

[64] In these circumstances, I think the reasons of Mason CJ, Toohey and McHugh JJ and Gaudron J constitute a majority in Van Gervan v Fenton that espoused the rule that where negligently caused injuries bring about a need for domestic care, compensation will be awarded for that need even if it is not proved that the need is, or may be, productive of financial loss. In my view, the majority also concluded that damages for domestic care should not be reduced by notions of mutual obligations that are part of marital or family life, or by services provided as part of the mutual give-and-take of marriage that would have been performed in the same way and to the same extent in any event. In other words, the majority held that damages should not be limited to what Deane and Dawson JJ termed “additional services”. These findings are binding on this Court. I therefore respectfully disagree with the views expressed by Hodgson JA in Roads and Traffic Authority (NSW) v Lolomanaia .

[65] I would also observe that in Roads and Traffic Authority (NSW) v Lolomanaia, Hodgson JA was dealing with a situation where the domestic services, the subject of the claim, were provided before the injuries were sustained. That is not this case. In this case, the care found as to an hour a day was not provided before Mrs Judd’s accident.

[66] Moreover, Mrs Judd does not provide Mr Judd with any “countervailing services” (to repeat the expression used by Deane and Dawson JJ in Van Gervan v Fenton at 344) as her injuries preclude her from doing so. Thus, even on the minority view in Van Gervan v Fenton, the services provided by Mr Judd are capable of being regarded as “additional services” within the meaning of this phrase as explained by Deane and Dawson JJ (also at 344).

[67] Mr Judd testified that he was spending about an hour and a half a day, on average, in providing domestic assistance and this included the time he took feeding the animals and cleaning up after them. There was no evidence as to how long he spent in doing this. Therefore, Mr Harben submitted, it had not been proved that Mrs Judd had a need for domestic care of an hour a day, on average (that is, once regard is had to the fact that the time taken in caring for the animals must be excluded from the hour and a half per day to which Mr Judd testified).

[68] On a common sense basis, it is unlikely that feeding pet dogs, cats and birds, would take much more than half an hour a day. This prima facie inference must stand in the absence of any cross-examination on the issue.

[69] There is force in Mr Harben’s argument that sharing in the washing up, putting away heavy dishes from the dishwasher, helping with the laundry, carrying the washing downstairs to the washing line and helping to hang it, helping with carrying heavy things such as blankets, etc, helping with the vacuuming, occasionally helping with the shopping, and doing the “heavy stuff” outside could not amount to an average of an hour a day. But Mr Judd testified to this effect, he was not really challenged in cross-examination on the time he spent in performing these services, and the judge accepted his evidence. Not without hesitation, I consider that it has not been shown that the decision that his Honour made in this regard was wrong.


Principles of damages for loss of economic capacity in personal injury cases

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