Motor Vehicles Insurance (PNG) Trust v Vevehupa [1984] PNGLR 224 (24 August 1984)

Papua New Guinea Law Reports - 1984

[1984] PNGLR 224 - MVIT v Reverend Lucian Vevehupa 

[1984] PNGLR 224

SC277

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

MOTOR VEHICLES INSURANCE (P.N.G.) TRUST

V

LUCIAN VEVEHUPA

Waigani

Kidu CJ McDermott Amet JJ

30 May 1984

24 August 1984

DAMAGES - Measure of - Personal injuries - Medical and hospital care - Motor vehicle accident - Hospital treatment in Australia - Treatment provided by Repatriation Commission - Liability to pay - Cost of recoverable in action - Repatriation Act 1920 (Aust.) s. 124(1a) - Repatriation Regulations (Aust.), reg. 70.

EVIDENCE - Business records - Tender of - Proof of facts therein - Validity not questionable - Evidence Act (Ch. No. 48), s. 61(2).

In proceedings for damages for personal injuries as a result of a motor vehicle accident the plaintiff claimed $A28,159.42 being the amount notified to the plaintiff for the cost of medical treatment, for the fitting of artificial limbs, by the Repatriation Commission of Australia.

Under the Repatriation Act 1920 (Aust.), s. 124(1a), where medical treatment is provided to a person under the Regulations, the person is liable to pay to the Commonwealth, as a debt due to the Commonwealth, such reasonable charges in respect of the treatment as the Commission notifies to him in writing.

Under the Repatriation Regulations, reg. 70, where medical treatment is provided to a person under the regulations and the Commission or a delegate of the Commission “notifies the person that he is, in the opinion of the Commission or the delegate, as the case may be, entitled to recover or receive, the whole or a part of the cost of the treatment, by way of damages or compensation, from another person, payment for that treatment shall be made in accordance with s. 124(1a)”.

The plaintiff received a notification under the hand of a delegate of the Commission pursuant to reg. 70 and a further amended notification setting out the cost of the medical treatment supplied.

On appeal from a finding that the cost of the medical treatment was recoverable:

Held

(1)      The effect of the tender of the notification under the hand of the delegate of the Commission as part of the business records of the Repatriation Commission through its Director of Medical Services in Queensland was, pursuant to the Evidence Act (Ch. No. 48), to make the document proof of the facts stated in it and its validity could not therefore be put in question.

(2)      Because the plaintiff was given treatment under an Act which allows for treatment to be made and as a claim for the cost of charges for that treatment had been lawfully made, the (reasonable) cost thereof was recoverable in the proceedings.

Blundell v. Musgrave [1956] HCA 66; (1956) 96 C.L.R. 73, followed and applied.

Lucian Vevehupa v. Motor Vehicles Insurance (P.N.G.) Trust [1983] P.N.G.L.R. 343, affirmed.

Discussion of the principles applicable in relation to a claim for gratuitous services.

Cases Cited

Blundell v. Musgrave [1956] HCA 66; (1956) 96 C.L.R. 73.

Cunningham v. Harrison [1973] 2 Q.B. 942.

Donnely v. Joyce [1973] EWCA Civ 2; [1974] 1 Q.B. 454.

Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 C.L.R. 161.

Kovac v. Kovac [1982] 1 N.S.W.L.R. 656.

Liffen v. Watson [1940] 1 K.B. 556.

Redding v. Lee [1983] HCA 16; (1983) 57 A.L.J.R. 393.

Roach v. Yates [1938] 1 K.B. 256.

Sutherland v. Rerekura (Unreported, Supreme Court, Queensland, 16 December 1977).

Taylor v. Bristol Omnibus Co. [1975] 1 W.L.R. 1054.

Appeal

This was an appeal from a decision of Kapi Dep CJ, (Lucian Vevehupa v. Motor Vehicles Insurance (P.N.G.) Trust [1983] P.N.G.L.R. 343) allowing a claim in a personal injuries claim for the cost of medical treatment undertaken in Australia and claimed pursuant to the Repatriation Act 1920 (Aust.).

Counsel

I. Molloy, for the appellant/defendant.

M. White, for the respondent/plaintiff.

Cur. adv. vult.

24 August 1984

KIDU CJ MCDERMOTT AMET JJ: Lucian Vevehupa, following injuries sustained in a motor vehicle accident on 28 October 1976 sued the Motor Vehicles Insurance (P.N.G.) Trust for damages. The claim for general damages was settled but the claim for medical expenses was litigated, the Trust denying any liability to pay. An award of $A28,159.42 was made on 17 October 1983. The Trust has appealed that decision, again on the basis of no liability to pay. This is based on the failure of the plaintiff to establish a legal liability to pay for hospital and medical expenses incurred in Australia.

The injuries included the crushing of both feet. Initial treatment was given in Popondetta Hospital, near the scene of the accident and later at Port Moresby General Hospital. Because of the nature of the injuries, adequate treatment could not be provided in this country and he was admitted to hospitals administered by the Australian Repatriation Commission at Greenslopes and Rosemount in Brisbane. The cost of this treatment in 1977 and 1978 and the subsequent repair and supply of artificial limbs amounts to the award under appeal.

The Commission made a claim for reimbursement of the cost of treatment given in a letter to Pastor Vevehupa dated 5 August 1983 (Ex. A). An earlier, “formal notification to you dated 9 December 1982 from the Delegate of the Repatriation Commission, under the provisions of Regulation 70(a) of the Repatriation regulations ...” was not in evidence. There was evidence before the trial judge of the reasonableness of the Commission’s charges which are not disputed here. There was no evidence about the pastor’s nationality (the assumption appears to be that he was a Papua New Guinea citizen) or of his eligibility for treatment at Repatriation Commission hospitals. In the judge’s notes prepared for this Court is the following: “Common ground — Commonwealth is not restricted to reliance upon Repatriation Act 1920 (Aust.) and Regulations — can claim under common law”.

It appears that further evidence to clear any ambiguity was not then considered necessary. What was clear was the admitted liability of the Trust “to compensate the plaintiff in respect of injuries if any received by the plaintiff ...”, the necessity for treatment to be given in Australia at a specialist institution and that such treatment was given at considerable cost.

The appeal centres on who has to bear this cost. It is argued that the learned trial judge erred in saying: “The issue as to whether the Repatriation Commission can successfully claim the cost of treatment from the plaintiff is irrelevant.”

The appellant’s case generally is that the trial judge erred in finding that the defendant was liable to the plaintiff (respondent) for the cost of the medical and hospital services provided to the plaintiff by the Repatriation Commission.

It is submitted, error occurred for two reasons:

(1)      The need for medical services necessitated by the defendant’s negligence amounts to a loss, the value of which for the purposes of damages, being the reasonable cost of supplying those needs based upon Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 C.L.R. 161 does not apply where hospital and medical services are supplied to a plaintiff by a welfare institution.

(2)      Unless the cost is recoverable from the plaintiff, he cannot recover such costs as damages based upon the authority of Blundell v. Musgrave [1956] HCA 66; (1956) 96 C.L.R. 73 and Taylor v. Bristol Omnibus Co. Ltd [1975] 1 W.L.R. 1054. It was further submitted the question was not whether the institution “may make a charge” but whether the cost “is recoverable”, that is the plaintiff has incurred a liability which is legally enforceable. The plaintiff had not established that he is liable to reimburse the Repatriation Commission and that there is no real prospect that he will be made liable. Reliance was placed on the provisions of the Repatriation Act 1920 (Aust.) and regulations plus an unreported decision of Sheahan J in the Supreme Court of Queensland in the case of Sutherland v. Rerekura, (Unreported Supreme Court, Queensland, 16 December 1977).

We set out now the relevant provisions of the Repatriation Act 1920 (Aust.) and regulations. Section 124(1a) provides, inter alia:

“Subject to sub-section (1c), where medical treatment is provided to a person under the regulations:

(a)      in circumstances in which the regulations provide for payment in accordance with this sub-section; or

(b)      in any case in which, before the treatment is provided, the Commission, for special reasons, determines that payment should be made in accordance with this sub-section and notifies the person accordingly,

the person is liable to pay to the Commonwealth, as a debt due to the Commonwealth, such reasonable charges in respect of the treatment as the Commission notifies to him in writing.”

Section 124(1b) provides:

“Regulations made in pursuance of para. (a) of the last preceding sub-section may provide for payment in accordance with the sub-section in any case in which:

(a)      a person (whether before, during or after the provision of the treatment) recovers or receives; or

(b)      the Commission or a delegate of the Commission (whether before, during or after the provision of the treatment) notifies a person that the person is, in the opinion of the Commission or the delegate, as the case may be, entitled to recover or receive,

the whole or part of the cost of the treatment, by way of damages or compensation, from another person.”

Regulation 70a made pursuant to s. 124(1a)(a) provides:

“Where medical treatment is provided to a person under these Regulations and:

(a)      the person (whether before, during or after the provision of the treatment) recovers or receives; or

(b)      the Commission or a delegate of the Commission (whether before, during or after the provision of the treatment) notifies the person that he is, in the opinion of the Commission or the delegate, as the case may be, entitled to recover or receive,

the whole or a part of the cost of the treatment, by way of damages or compensation, from another person, payment for that treatment shall be made in accordance with subs. (1a) of s. 124 of the Act.”

The respondent submitted exhibit A was given under the hand of a delegate of the Commission and quite clearly established the liability to pay as a debt to the Commonwealth. The letter in part reads:

“Dear Sir,

Supply of medical treatment

I refer to the formal notification to you dated 9 December 1982 from the Delegate of the Repatriation Commission, under the provisions of Regulation 70a of the Repatriation regulations, advising you that in the opinion of the Commission you are entitled to recover or receive the cost of medical treatment supplied to you by the Department of Veterans’ Affairs from another person as damages or compensation.

‘... The effect of that notification is in accordance with the provisions of s. 124(1a) of the Repatriation Act 1920 to render you liable to pay the cost of the treatment supplied to you to the Commonwealth of Australia.

The notification dated 9 December 1982 is now amended and I, Gerrard John Readdy a delegate of the Repatriation Commission hereby formally notify you that the cost of the medical treatment supplied to you to date is $A28,159.42 made up as follows: (enumerated thereunder were the various heads of services and treatment supplied and details thereof and the costings to the total value of $A28,159.42).

If you wish to discuss arrangements for payment of this account would you please call at the Queensland Branch of the Department of Veterans’ Affairs. In the meantime it is suggested that you advise the solicitor handling your claim for damages for the injuries you received, which required the supply of medical treatment, of this debt to the Commonwealth without delay.’ ”

The respondent contends therefore that he is entitled to recover such costs from the defendant as special damages. What is the nature of Ex. A? It can be viewed in two ways — (a) as a claim under the Act and (b) as a claim by the Commonwealth generally — a letter of demand to repay the cost of treatment under the general law.

The appellant made several threshold submissions in relation to the application of the Repatriation Act 1920 and regulations, saying the claim is not a valid one under reg. 70a and ss 124(1aa) to (1c) of the Act. It was submitted first, that there is no evidence that the person who signed the letter is a properly designated delegate to the Commission; second, it does not state that the Commission is of the opinion that the respondent is entitled to recover the cost of the treatment, and third, that it does not specify the opinion as to whether the whole or part only of that cost is recoverable by the respondent. It was submitted that because this letter or notice was defective, it did not constitute a valid notification to the respondent, the receipt of which by the respondent, imposed a legal liability on him to pay the costs of his treatment, ($A28,159.42).

The hospitals were established under s. 120d of the Repatriation Act:

“... for the care and welfare of persons eligible to receive medical treatment under:

(a)      this Act

(b)      the Interim Forces Benefits Act 1947-73

(c)      the Repatriation (Far East Strategic Reserve) Act 1956-73 or

(d)      the Repatriation (Special Overseas Service) Act 1962-73.”

In the absence of evidence, the trial judge said: “It would appear that the plaintiff was admitted for treatment under s. 124(1ab)(b)(i).” This is the section of the Act which gives regulation making powers, specifically regulations providing for medical treatment in the Commission’s hospitals (or others) for:

(1)      members of the Forces and their dependants;

(2)      section 120 persons — that is Boer War personnel;

(3)      members of the Forces of a Commonwealth country anti their dependants;

(4)      members of the Forces of an allied country and their dependants;

(5)      members of the Forces within the meaning of Divn 10 of Pt III — that is a regular serviceman or a national serviceman and their dependants; and

(6)      certain dependent females.

There was no evidence that the plaintiff was eligible for treatment within any of these categories. He may well have been. But the clear inference is that treatment was given as the trial judge suggested that is because the plaintiff was within the very wide category of “persons other than” those already mentioned and those entitled under the legislation listed in s. 124(1ab)(b)(i) and (ii). Regulation 66b makes; it clear that a Deputy Commissioner may provide medical treatment in a s. 120d hospital to such a person — and he obviously did so in the emergency conditions then existing.

The appellant relied strongly on Sutherland v. Rerekura. Sheahan J. in an analysis of the provisions of s. 124(1a) of the Act and reg. 70a stated that it seemed to him “that the condition precedent which attracts the liability under s. 124(1a) to pay the ‘reasonable charges in respect of the treatment’, is the notification authorised by reg. 70a to be given to the person for whom medical treatment has been provided”. His Honour considered that three specific matters were required to be complied with by the notice under reg. 70a. First, that the notification must be given by the Commission or a delegate of the Commission; second, the notification is required to state that the Commission or a delegate thereof is of the opinion that that person is entitled to recover the whole or receive the whole or part of the cost of the treatment; and third, it was at least arguable that the notification must specify an opinion as to whether the whole or part only of that cost is recoverable or receivable by that person.

The narrow question is, as Sheahan J. posed in Sutherland v. Rerekura — did exhibit A constitute a valid notification to the respondent, the receipt of which by him imposed a legal liability on him to pay the costs of his treatment?

As to whether the purported notification was signed by a properly designated delegate to the Commission, we note that it was tendered as part of the Repatriation Commission’s business record of treatment costs through Dr Todd, the Director (Medical Services) of the Department of Veteran’s Affairs in Queensland. Pursuant to s. 61(2) of the Evidence Act (Ch. No. 48) the document is proof of facts stated in it, upon it being received into evidence as a business record. Further, the notice sufficiently states “that in the opinion of the Commission you are (he is) entitled to recover or receive the cost of medical treatment supplied ...” (Our emphasis).

This letter is clearly a notification to the plaintiff that he is liable to pay such reasonable charges in respect of his treatment as therein set out. Sutherland v. Rerekura is of no further assistance in deciding the matter in this jurisdiction, as it can be distinguished and the problems which the judge there perceived are not apparent here.

Because the plaintiff was given treatment under an Act which allows for charges to be made and as a claim for them has been made, and communicated to him, he was in the same position as the injured sailor in Blundell v. Musgrave “... that the charge was lawfully made and that the amount in question was properly the subject of a claim by the respondent (sailor)”, see at 89.

In our view, this conclusion disposes of the appeal. Counsel for the appellant had in the alternative addressed at some length on the common law principles. But we are not at all sure of the relevance of this as the ultimate decision below was based upon another ground. As his Honour said: “I am satisfied that the medical services offered to the plaintiff are not free services.” Likewise, we are not at all sure if a Commission hospital in Brisbane can be labelled as a “welfare institution”. The issue as to whether the Commonwealth can claim was clearly relevant and upon this basis, the award was made. The decision below is clouded because it is hedged with considerations of the common law gloss developed in Donnelly v. Joyce [1973] EWCA Civ 2; [1974] 1 Q.B. 454. From what we conclude to be the basis of the award, it is not necessary to consider the challenged statement which can be confined to the first argument. However, we appreciate the concern of the Trust for its future liability and contingency planning. The question of law raised is important and we make the following observations.

Donnelly v. Joyce was an appeal (unsuccessful) against an award to an infant plaintiff of an amount to cover wages lost by his mother who gave up part time employment to nurse him for six months after his discharge as an inpatient. Kapi Dep CJ adopted, as the law on liability in circumstances where necessary services are provided to injured persons free of charge, the following statement of the Court of Appeal at 461-462:

“We do not agree with the proposition, inherent in Mr Hamilton’s submission, that the plaintiff’s claim, in circumstances such as the present, is properly to be regarded as being, to use his phrase, ‘in relation to someone else’s loss’, merely because someone else has provided to, or for the benefit of, the plaintiff — the injured person — the money, or the services to be valued as money, to provide for needs of the plaintiff directly caused by the defendant’s wrongdoing. The loss is the plaintiff’s loss. The question from what source the plaintiff’s needs have been met, the question who has paid the money or given the services, the question whether or not the plaintiff is or is not under a legal or moral liability to repay, are, so far as the defendant and his liability are concerned, all irrelevant. The plaintiff’s loss, to take this present case, is not the expenditure of money to buy the special boots or to pay the nursing attention. His loss is the existence of the need for those special boots or for those nursing services, the value of which for purposes of damages for the purpose of the ascertainment of the amount of his loss is the proper and reasonable cost of supplying those needs. That, in our judgment, is the key to the problem.”

His Honour then said that in applying this general principle, no distinction can be drawn between cases where services and goods are supplied by relatives and friends and where they are supplied by a welfare institution. However, the argument against is that later cases have confined the general principle to services provided by relatives and friends: see Cunningham v. Harrison [1973] 2 Q.B. 942; Taylor v. Bristol Omnibus Co. Ltd; Kovac v. Kovac [1982] 1 N.S.W.L.R. 656 and Redding v. Lee [1983] HCA 16; (1983) 57 A.L.J.R. 393.

The passage from Donnelly v. Joyce which his Honour accepted as the applicable law makes no mention of welfare institutions. Indeed, the language is couched in terms which strongly suggest assistance given at a personal level. The authorities upon which the Lord Justices based their decision also relate to the provision of assistance at a personal level; the wife and sister-in-law of the injured man in Roach v. Yates [1938] 1 K.B. 256 rendering nursing care; the father of an injured domestic girl in Liffin v. Watson [1940] 1 K.B. 556 providing free accommodation in lieu of that which was formerly provided by her employer. Cunningham v. Harrison was decided the day before Donnelly’s case and these authorities were not cited before that division of the Court of Appeal. Mr Cunningham, a tetraplegic, was cared for by his wife but the task was too much for her and she ended her life before the trial. However, Lord Denning expressed the view that the husband could have recovered compensation for the value of the services which his wife rendered had she not died. What is also important for present purposes is the reduction of the award because of error in not allowing for some future assistance being given free of charge under various statutes or allowance being made for the provision of such services at a much lower cost rate by welfare institutions, than would be the case with privately engaged housekeepers and nurses. This matter was further clarified in Taylor v. Bristol Omnibus Co. Ltd where the Court of Appeal said, it would not be right to regard welfare services as free of charge where a statute gives power to recover any such charges.

In Griffiths v. Kerkemeyer, the many services required by the quadriplegic man were provided by his fiancé‚ and members of his family. An award was made for the cost of these gratuitous services calculated by reference to their standard or market cost, following the method of assessment adopted in Taylor’s case.

This is the Australian authority for the proposition that where through a tortfeasor, the plaintiff has incurred a need for supportive services of some kind he is entitled to recover the reasonable cost of satisfying the need in the way we have mentioned. The more recent case of Kovac v. Kovac [1982] 1 N.S.W.L.R. 656 followed these authorities in awarding damages to a seriously injured woman for services given by her husband thus obviating the need for nursing and other domestic services. However, there are limits to what can be claimed and compensated.

It is to be borne in mind that Donnelly v. Joyce and Griffiths v. Kerkemeyer have not altered the general principles of assessing damages arising from a motor vehicle accident. They deal with a particular area of damages in cases where services are supplied without full cost to the plaintiff, that is to say, gratuitously, see Mahoney J.A. in Kovac at 674-675. The origin of the principle which emerged from Donnelly’s case and accepted in Griffiths v. Kerkemeyer lies in policy and a felt need to avoid a particular injustice.

These cases have not dealt with the provision of gratuitous services by a welfare institution. The broad statement of the trial judge appears to us obiter. Whether the propositions established in Griffiths v. Kerkemeyer, that is (1) in some cases the plaintiff’s damages should include an amount calculated with reference to gratuitous services rendered, and (2) that these damages be calculated on the standard or market cost of such services, should apply to the gratuitous services of a welfare institution is a matter for another day.

Mr Molloy expressed a concern that the award may not reach the Commission. In argument, it was intimated that payment could be made direct. We now note in the sections of MacGregor On Damages, (14th ed.), at pars 1205-1210 to which he referred, the simple device of directing that judgment be conditional upon the repayment by the plaintiff of medical expenses. The paragraphs in the text deal specifically with gratuitous payments and assistance with a moral obligation to repay. In the circumstances however, we would be prepared to make an order for direct payment in this case if it is desired.

Appeal dismissed.

Lawyer for the appellant: Young and Williams.

Lawyer for the respondent: Gadens.

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