By Nieva Connell, Partner and Maddison Williams, Associate

The recent matter of Maria Irene Reid v Seltsam Pty Ltd (formerly Wunderlich Ltd) [2021] VSC 653 involved a claim for personal injury (namely mesothelioma) following asbestos exposure.

The defendant admitted liability, so the matter proceeded as an assessment. Of particular relevance to this article is the plaintiff’s claim for and ultimately the Courts award for Griffiths v Kerkemeyer damages.

The plaintiff gave evidence that as a result of her injury, she required assistance with personal care and undertaking various domestic tasks. She also submitted a need to be accompanied when she left her house to access the community and of most interest, she required ‘emotional support.’ This emotional support was provided by her family.

The defendant contended that the latter of the two categories, the need for accompaniment when leaving the house and ‘emotional support,’ were not compensable under Griffiths v Kerkemeyer. Specifically, the plaintiff’s need for assistance in leaving the house was not created by the defendant’s tortious conduct, and the need for emotional support did not fall within the scope of Griffiths v Kerkemeyer damages.

Relevant principles

In respect of the plaintiff’s claim for damages, Forbes J repeated the following principles in relation to Griffiths v Kerkemeyer damages:

1. The tortious conduct of the defendant must cause the need for the service;
2. The basis upon which the services have been provided (by money or unpaid effort) is irrelevant;
3. When services are provided gratuitously to the plaintiff, the plaintiff should receive the benefit of that gratuity, and there should be steps taken to protect the plaintiff from the possibility that the gratuitous provision may be unable to continue;
4. It is not necessary to show the need for assistance will result in financial loss; and
5. The commercial or market value of the services is generally a fair and reasonable measure of the plaintiff’s loss.

Was the need to be accompanied created by the tortious conduct?

The defendant submitted this need was not caused by the tortious conduct, but rather due to her underlying agoraphobia. By choice, when the plaintiff and her husband retired, they chose to do most if not all domestic and social activities together. The plaintiff did not like to drive, which was a contributing factor to this decision.

Forbes J did not accept these submissions. Her Honour found that the plaintiff was fatigued and nauseous as a result of her condition and that this, along with her increased volume of necessary appointments, meant she needed to be accompanied. Therefore, the defendant’s tortious conduct created the need for this care.

Is emotional support correctly characterised as a service?

This submission was also not accepted by the court. Forbes J quoted with authority a judgment by Campbell J of the New South Wales Supreme Court in Wormleaton v Thomas & Coffey [2015] NSWSC 260. In Wormleaton, Campbell J opined that Griffiths v Kerkemeyer damages are awarded to plaintiffs to ‘compensate them for the cost (whether actually incurred or not) of services rendered to them because of their incapacity to render them to themselves’ [our emphasis added]. Campbell J added that the emotional benefit obtained from the company of friends and family is not described as a service.

Forbes J agreed with Campbell J that the psychological benefit of supportive friends and family and the social interaction a plaintiff might engage in and receive are not well described as a ‘service’. Further noting that within a relationship of intimacy and closeness, such as that between the plaintiff and her husband, emotional support is a benefit that each gain from the other.  On that basis, it is not a ‘service.’ For this reason, Forbes J considered that the plaintiff’s requirement for ‘emotional support’ should be considered when assessing her pain and suffering damages.