G v K: Give-&-take as part of a relationship + care for pets

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

One of the issues on appeal was whether the plaintiff met the gratuitous care threshold under s.72(2) of the Motor Accidents Act 1988 (NSW), which provides:

“No compensation is to be awarded if the services are provided, or are to be provided:
(a) for less than 6 hours per week, and
(b) for less than 6 months.”

In contention was the plaintiff’s evidence that as part of ordinary give-and-take of a marital relationship the husband provided care and also cared for their pets.

Ipp JA with whom Hodgson JA and Basten JA agreed, although note Basten JA’s view:
[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.

Basten JA

[93] It was common ground between the parties that, the accident having occurred on 7 November 1997, the assessment of damages was governed by the Motor Accidents Act 1988 (NSW). That Act permitted the inclusion in an award of damages of an amount of compensation “for the value of services of a domestic nature”, which have been or are to be provided by another person to the injured person and for which the latter has not paid and is not liable to pay: s 72(1A). Under the general law, such recovery was permissible pursuant to the principles established in Griffiths v Kerkemeyer (1977) 139 CLR 161. The challenge in the present case concerned the assessment of the evidence called on behalf of the employer, as to the services provided by the husband, of a domestic nature. The principal challenge was based on the proposition that, whilst the husband indicated services which he had provided after his wife suffered injury in the accident, the evidence fell short of establishing that those services were “necessary” as a consequence of the injuries suffered by the injured worker in the accident. I agree with the analysis of the facts undertaken by Ipp JA and with his Honour’s conclusions.

[94] There are only two issues raised by a claim for the value of domestic services. The first is whether the need for such services to be provided by another was created by the accident; the second is to establish the commercial value of those services.

[95] In relation to the first question, the fact that such services were being provided, whether on a gratuitous or paid basis, prior to the accident, is beside the point. If the injured person requires assistance in carrying out the garbage and doing similar “heavy work” around the home, it does not matter whether she did that before the injury, whether if she did not it was done by a paid housekeeper, or was undertaken by her husband or other partner. This conclusion is to be derived from the joint judgment of Mason CJ, Toohey and McHugh JJ in Van Gervan v Fenton (1992) 175 CLR 327 at 338. The possibility that there might be some reorganisation of services as between spouses, or others living in a permanent domestic relationship, was raised by Brennan J, who was otherwise in general agreement with the joint judgment. Similar references to “the give-and-take activities of the parties” to a stable marital relationship, are to be found in the dissenting judgment of Deane and Dawson JJ. Gaudron J, in a separate judgment, came to the same conclusion, both in principle and in the result, as the joint judgment. To adopt an approach based on what may be seen as “the fair give-and-take of family life”, is to adopt the approach of the minority in Van Gervan.

[96] In Roads and Traffic Authority (NSW) v Lolomanaia [2001] NSWCA 268, (2001) 34 MVR 249, Hodgson JA expressed a different view (with which Davies AJA agreed) at [45]-[48], but that view was obiter, as appears at [50] and was a matter on which Fitzgerald AJA reserved his opinion, at [61]. In Matchan v Lyons [2003] NSWCA 384, (2004) 40 MVR 466, Hodgson JA adhered to the views he had expressed in Lolomanaia but the other members of the Court (Palmer J, with whom Cripps AJA agreed) did not adopt the reasoning of Hodgson JA. Given my understanding of the judgment in Van Gervan, it is not open for this Court to adopt the approach preferred by Hodgson JA. I agree with the reasoning of Ipp JA on this matter.

[97] The second point in relation to services of a domestic nature is the suggestion of the Appellant that taking steps to keep up a hobby or maintain pets is not properly covered by that head of damages. Authority in that regard is said to be found in Geaghan v D’Aubert (2002) 36 MVR 542. In that case, Stein JA, with whom Handley JA and Foster AJA agreed, discussed a claim for “care of the animals” at 548-550, [53]-[66]. In his conclusion at 550, [66], his Honour stated:

“Whichever way it is put, on a ‘needs’ basis, general damages or remoteness, it seems to me that Griffiths v Kerkemeyer does not extend to a plaintiff’s hobby and his Honour was entitled to reject the care of the animals on that basis. Nor do I believe that it would be appropriate to extend Griffiths v Kerkemeyer to cover the care of animals kept as a hobby.”

[98] There are suggestions in the reasoning which would conflate the keeping of pets with a “hobby” in all cases. If it were necessary for the resolution of a case, I would respectfully doubt whether the ratio of Geaghan goes so far. It may be that a hobby should be understood as something involving an activity or occupation, so that if the injured plaintiff can no longer engage in the hobby, it falls into the category of activities which are no longer open and should thus be compensated as part of the diminution of the enjoyment of life, by way of general damages. Pets, by way of contrast, provide various benefits within the home and garden. If a person who is quadriplegic obtains enjoyment from listening to a canary, rather than the radio, there is no reason in principle why assistance which might extend to switching a radio on and off and changing channels, should not include feeding the canary. There is no principle which requires that a person rendered impotent by a tortious injury can only receive compensation for the bare necessities of life. The reason why the caselaw may not include reference to caring for pets is probably because it had not previously been thought necessary to require a plaintiff to distinguish between general house cleaning and cleaning up after a pet, or any similar or related distinction. Caring for pets, like caring for furniture, is an inherent part of the concept of domestic assistance, provided to a plaintiff, and does not form some impermissible extension of the kind which occurred in Sullivan v Gordon (1999) 47 NSWLR 319, overturned in CSR Ltd v Eddy (2005) 226 CLR 1. However, no final view is required, because, as Ipp JA has explained, no need, caused by the accident, for assistance with pets was established on the evidence.


David Cormack – Brisbane Barrister & Mediator

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