Van Gervan v Fenton [1992] HCA 54

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Van Gervan v Fenton [1992] HCA 54

ORDER Appeal allowed with costs. Set aside the order of the Full Court of the Supreme Court of Tasmania whereby judgment was entered for the appellant for $380,967.80. In lieu thereof remit the matter to the trial judge to hear further evidence and to assess such additional damages as the appellant may be entitled to in accordance with the judgment of this Court.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 28 Mason C.J., Toohey and McHugh JJ.

This appeal is brought against an order of the Full Court of the Supreme Court of Tasmania which dismissed so much of an appeal by the appellant as concerned the inadequacy of an award of damages for a Griffiths v. Kerkemeyer [1] claim (see below). The question in the appeal is whether, in respect of a Griffiths v. Kerkemeyer claim, compensation for the value of the services provided for the appellant by his wife was properly assessed by reference to what she would have earned if she had continued in paid employment.

1. (1977) 139 C.L.R. 161.

In Griffiths, this Court held that a plaintiff was entitled to recover damages for the value of services rendered to him gratuitously by his fiancee and members of his family. The effect of the decision was summarized in Nguyen v. Nguyen [2] as follows:

In reaching its conclusion, the Court followed the decision of the Court of Appeal in Donnelly v. Joyce [3] , and viewed the damages in question as damages for one component of the plaintiff's loss occasioned by his physical disability. The disability gave rise to the need for nursing and other care. The need was met by the services gratuitously provided. The value or cost of those services was, in the circumstances, an appropriate means of quantifying that aspect of the plaintiff's loss which was represented by the need. As the need represented the loss, the value of the services required to fulfil that need served as a means of assessing the loss. The fact that there were persons, prompted by motives of concern for the plaintiff, who were prepared to provide the services gratuitously was, it was held, not something which should diminish the damages to the advantage of the defendant. It was only right in the circumstances that the plaintiff should benefit rather than the wrongdoer whose negligence was the cause of the plaintiff's loss. 1. (1990) 169 C.L.R. 245, at pp. 261-262, per Dawson, Toohey and McHugh JJ. 2. [1974] Q.B. 454.