MORGAN and ORS v GIBSON [1997] NSWCA 212

MORGAN and ORS v GIBSON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P and MEAGHER JA 15 May 1997, 6 June 1997

[1997] NSWCA 212

Motor Accidents Act 1988 s72 — Damages — reasonable needs — principle of Griffiths vy Kerkemeyer (1977) 139 CLR 161 — Van Gervan v Fenton (1992) 175 CLR 333 — Livingstone v Raywards Coal Co (1880) 5 App Cas 25 — Haines v Bendall (1991) 172 CLR 60.

FACTS

The respondent was injured in a motor vehicle accident which occurred on 6 July 1990. Liability was not in issue and quantum was determined by Tupman J of the District Court. The appellant appealed to this court solely on the quantum of damages awarded by her Honour for past and future Griffiths v Kerkemeyer damages, alleging that the respondent was only entitled to be compensated for her reasonable needs.

HELD

(1) The basis of an award for Griffiths v Kerkemeyer is the need of a plaintiff for those services to be provided, irrespective of actual or possible financial loss: Van Gervan v Fenton (1992) 175 CLR 327.

(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.

Mason P I agree with Meagher JA.

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: