CSR Ltd & Anor v Thompson & Anor

[2005] HCATrans 390

[2005] HCATrans 390

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  Nos S523 and S524 of 2004

B e t w e e n -

CSR LIMITED

First Appellant

MIDALCO PTY LIMITED

Second Appellant

and

JARRADD EDDY AS ADMINISTRATOR AD LITEM REPRESENTING THE ESTATE OF THE LATE JOHN THOMPSON

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 15 JUNE 2005, AT 10.20 AM

Copyright in the High Court of Australia

__________________

MR D.F. JACKSON, QC:    If the Court pleases, I appear with my learned friend, MR T.G.R. PARKER, for the appellant in each matter.  (instructed by Makinson & D’Apice)

MR M.J. JOSEPH, SC:   If the Court pleases, I appear with MR F.L. AUSTIN and MR S.P.W. GLASCOTT for the respondent and seek orders to substitute, in accordance with the motion, Jarradd Eddy for John Leonard Thompson in the first matter.  (instructed by Alex Stuart & Associates)

GLEESON CJ:   That is consented to, as I understand it.

MR JACKSON:   Yes, your Honour.  The orders have been consented to, I think, in terms of effectively paragraphs 1 and 3 of our amended summons.

GLEESON CJ:   Then the order will be that Jarradd Eddy as administrator ad litem representing the estate of the late John Thompson is substituted as the respondent in proceedings No S523 of 2004.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, there are two issues in the proceedings:  one concerning the quantification of damages; the other the question of costs.  May I deal with them in that order.  So far as damages are concerned, the issue in the appeal is whether a plaintiff is able to recover damages calculated by reference to the commercial value of services by reason of the injured person’s inability to provide those services to other persons.  In other words, as we would put it, the need is not that of the injured person but rather the need of someone else.  We would submit that damages are not recoverable on the basis of the costs of commercial provision of those services.  Rather, the diminished ability to provide them to the person in need of them is an aspect of the loss of amenities part of general damages.

May I go for just a moment to the basic facts which may be very shortly stated.  They are set out in our written submissions in paragraphs 7, 8 and 9.  Your Honours will see from paragraphs 7 and 8 that this was not a case in which liability was in issue.  In paragraph 9, the trial took place in March and April 2003 and was conducted upon an agreed assumption that the injured party, who was then 61, would die of malignant mesothelioma in the next February.  In fact, as your Honours will have seen from the material in relation to the application, he died a few months earlier.  The damages awarded were a total of $465,000‑odd damages. 

The heads of damage making up the award may be seen at page 197 in the primary judge’s reasons at paragraph 42.  Your Honours will see the list of items making up the damages.  The top is an item of general damages of $165,000 and the $165,000 was arrived at in the manner referred to at page 192, paragraph 25.  There had been written submissions in support of the claims for damages, I should mention in passing.  We had conceded general damages to $165,000.  The plaintiff sought a little more and the figure that we had put forward was accepted.

There was a contest, however, about the item which is the last item described in paragraph 42 as “Sullivan v Gordon damages”.  The amount awarded for those damages was $165,480, higher, though marginally perhaps, than the whole award for general damages.  Your Honours, the facts giving rise to that claim are referred to, if I could go back for a moment to our written submissions, in paragraphs 10 and 11. 

The position was that his wife was suffering from osteoarthritis and the Sullivan v Gordon head of damages was for his inability to care for her and the amount was calculated by allowing 1½ hours per day at $25 an hour for a period of 20 years.  Your Honours will appreciate of course that the 20 years was very significantly a period which one would describe as being “the lost years”, that is where death had been accelerated by the disease.

Now, your Honours, I should also say that the figure arrived at was discounted by 20 per cent for contingencies, so that is the $165,000.  Your Honours will see from the judge’s reasons in relation to this issue, under the heading “Sullivan v Gordon damages” – I am sorry, your Honours, I just lost the paragraph ‑ ‑ ‑

GLEESON CJ:   Sullivan v Gordon damages exceeded the general damages.

MR JACKSON:   Yes, indeed, your Honour, by $480,000‑odd.  Your Honours will see paragraph 35, page 194, there commences a discussion of them and this was a case which was governed by South Australian law but the judge took the view that he was obliged to follow the decision of the New South Wales Court of Appeal, who were higher than him in the hierarchy, and I am not complaining about that, your Honours.

GUMMOW J:   That was on the view that this was a matter of procedure, was it?

MR JACKSON:   Your Honour, I think that must be so, your Honour, yes.

GUMMOW J:   It must be.  It was the only reason in principle why it could be so.

MR JACKSON:   Yes, your Honour.  The way in which his Honour went about it can be seen, I think, in paragraph 39 of his reasons at page 196.  He said, to put it shortly, that he was following the Court’s decision in Lipohar and your Honours will see particularly a reference halfway down the page to paragraph 50 of that decision.

Your Honours, I will come a little later, if I may, to the statutory provisions that have some relevance to this matter in South Australia, but may I say just shortly that in South Australia there is provision for both parties to a marriage to sue for loss of consortium.  There is provision in the usual fatal accidents form for a range of persons to sue for loss they have suffered because of the death of someone and also there is a provision which limited the effect of the decision of the Court in Griffiths v Kerkemeyer, but the identity of the provisions has changed a little over time, but I will give your Honours the references.

Your Honours, there appear in the decisions to have been two basic approaches taken to justify the making of an award of this kind.  One is said to be an extension of the principle in Griffiths v Kerkemeyer; secondly, a principle having some kinship, as it were, with Griffiths v Kerkemeyer, but a principle standing on its own.  Could I deal with the first of those first, your Honours. 

The basis of a Griffiths v Kerkemeyer claim was dealt with by the Court in Van Gervan v Fenton (1992) 173 CLR 327 in the passage at 333 in the joint reasons of Chief Justice Mason and Justices Toohey and your Honour Justice McHugh. This passage, your Honours, may I say, was one that was specifically agreed with by Justice Gaudron, and I will give your Honours the reference to that in just a moment. Your Honours, at page 333 in the paragraph commencing in the middle of the page it was said:

Consequently, it should now be accepted that the true basis of a Griffiths v Kerkemeyer claim is the need of the plaintiff for those services provided for him or her and that the plaintiff does not have to show, as Gibbs J held, that the need “is or may be productive of financial loss”.

Could I say, your Honours, that that passage was specifically adopted by Justice Gaudron at page 347 in the passage commencing at the penultimate paragraph on the page and four lines into that paragraph.

May I go back, your Honours, to page 333.  Central to the concept there referred to is the need of the injured plaintiff.  Your Honours will see the words used “is the need of the plaintiff for those services provided for him or her”.  Your Honours, that the plaintiff’s need is the basis for Griffiths v Kerkemeyer damages can be seen in later cases in the Court.  May I give your Honours the references to the relevant parts of two of them.  The first is Kars v Kars (1996) 187 CLR 354 per, first, Justice Dawson at page 361. The passage commences relevantly at the bottom of page 360 “Once it is recognised” and it goes through to, I think, effectively about halfway down page 361. Might I just invite your Honours to note one thing on page 361 at about point 3 on the page. His Honour referred to:

general damages under three heads:  economic loss, loss of enjoyment of life and pain and suffering.

The expression “loss of enjoyment of life”, sometimes the expression “loss of amenities of life”, is used perhaps more frequently.  Perhaps it depends on where one comes from and which is the language used particularly, but it describes a familiar concept.

In the principal set of reasons, your Honours, the relevant passages may be seen in the joint reasons of Justices Toohey, McHugh, Gummow and Kirby, commencing at page 368.  Your Honours will see that there is a reference to the general proposition prior to Griffiths v Kerkemeyer immediately under the heading of “Damages for gratuitous services:  an anomaly”.  That passage really goes through until one comes to the end of that page and your Honours will see particularly the last few lines:

of fulfilling the natural obligations to attend to the injuries and disabilities caused to the plaintiff by the tort.”

Then at page 369 your Honours will see a reference again in the paragraph immediately under the quotation in Griffiths v Kerkemeyer, et cetera, and that leads in to page 370, the last quarter of the page, “This focus upon the ‘need’ of the plaintiff was repeated” in a passage from Van Gervan v Fenton to which I referred earlier, and your Honours will see that going over to the top of the next page.  Then page 372, the first paragraph, two particular passages, four lines down:

the injured plaintiff’s established needs . . . But the focus is upon the plaintiff’s needs.

Your Honours, finally in that regard could I go to Grincelis v House (2000) 201 CLR 321, and if I could refer to three passages. The first is at page 330 in the joint reasons, paragraph 19, there is a reference to Griffiths v Kerkemeyer being entrenched, and then at page 332, Justice Kirby, paragraph 25, your Honours will see the reference in the second line to “his or her needs”, and your Honour Justice Callinan at page 341, paragraph 57.

Your Honours, I intend to come back to a couple of passages in those judgments a little later, if I may, for another purpose, but what is manifest, in our submission, from the decisions following Griffiths v Kerkemeyer is that the need which is the subject of a Griffiths v Kerkemeyer claim is that of the plaintiff, the need being brought about by the injuries to the plaintiff.  Your Honours, could we say, with respect, in relation to it that whilst the principle is established, as we have sought to point out in our written submissions at paragraph 28, it does have some unusual features, unusual or atypical, perhaps, features, and could we refer your Honours to paragraph 28 of those submissions.

The point we would seek to make about it particularly, your Honours, is that it really provides no basis at all, in our submission, for the adoption of it as the principle applicable in cases of this kind.  In the majority reasoning in the Court of Appeal, what your Honours will see in Sullivan v Gordon 47 NSWLR 319 at 331, paragraphs 56 to 59, is that Justice Beazley adopted Griffiths v Kerkemeyer as the reasoning which justified the making of the Sullivan v Gordon‑type order.  Your Honours will see in paragraphs 56 to 59 she referred in paragraph 56 that the question was:

whether damages to compensate for the loss of the capacity to care for dependent children is compensable, and if so, what is the measure of the compensation payable.

She referred to an earlier decision of the New South Wales Court of Appeal, Burnicle v Cutelli, in which it was held that it was sounded in general damages.  She referred in paragraph 57 to the fact that when the appeal in that case was first argued, no one had referred to Burnicle v Cutelli.  A court of five was assembled to deal with that issue, but what happened then, it appears, was that – this appears in paragraph 59 – Burnicle v Cutelli was set adrift, as it were, by counsel then appearing in the matter.  But your Honours will see that in paragraph 58 her Honour said:

I cannot see any logical basis for the distinction drawn in Burnicle v Cutelli –

which was after Griffiths v Kerkemeyer –

between the measure of damages in a traditional Griffiths v Kerkemeyer claim and the measure of damages for the loss sustained by the inability to care for a dependent child.

Your Honours, could we say the first thing is that the Griffiths v Kerkemeyer damages are based on the need to care for the injured plaintiff, not on the need for the injured plaintiff to care for somebody else.  Your Honours will see if one goes to paragraph 59 to the top of the page that her Honour specifically relied on the Griffiths v Kerkemeyer notion.  Your Honours, that is the first thing we would seek to say, that Griffiths v Kerkemeyer does not, in our submission, support the award of damages of this kind.

I referred to Burnicle v Cutelli [1982] 2 NSWLR 26. May I take your Honours to that for a moment, to the passages in it which are germane. At page 28 your Honours will see Justice Reynolds saying, if I could go to the paragraph commencing between A and B on the page:

There are two losses:  one to the recipients of the services and the other to the plaintiff personally.  It is easy to quantify the losses to the recipients as being the value to them of the lost services.  The difficulty lies in seeing how in principle the loss to her –

the injured party –

is to be measured in the same way as the loss to the recipients.

He then referred to Griffiths v Kerkemeyer and there is some discussion in the United Kingdom about the issue, saying at E that they:

do little to solve the problem of quantification.

I am of the opinion that an assessment must be made as a component of an award of general damages, just as must be done in respect of any other deprivation which does not produce financial loss.  The injured plaintiff has in such a case as this lost part of a capacity, the exercise of which can give to her pride and satisfaction and the receipt of gratitude, and the loss of which can lead to frustration and feelings of inadequacy.

Your Honours, at page 29, at the top of the page, his Honour expressed the view that:

To quantify the injured housewife’s loss of capacity to perform the work voluntarily for the benefit of others by the measure of the value of those services if performed by a third party may be a convenient and simple way to do so –

Your Honours, I will come to the questions of convenience and simplicity a little later if I may, but this is not the correct position, we would submit –

but it does not seem to accord with established principle or to be a satisfactory way of assessing what is reasonable.

Your Honours, at page 36 Justice Mahoney arrived at the same result.  Your Honours will see in the paragraph commencing just above D he referred to the issue and then halfway through that paragraph said:

Under the existing law, the members of the family to whom the services were rendered . . . cannot claim against the defendant for the loss of them.  Nor can the daughter, who now provides them. The submission was that the plaintiff herself can recover in respect of them.

Now, your Honours will see then that he discusses in the next paragraph a distinction that he said must be made, and he goes on to say at about F:

Upon this basis, the present plaintiff is entitled to have taken into account the fact that she can no longer provide the relevant services . . . The court is to take into account, in assessing the plaintiff’s damages, that she can no longer provide such services and the damages are to compensate her for the loss of that capacity and for the satisfactions which she would have derived from the exercise of it.  In calculating the plaintiff’s damages in the present case, I have taken that into account.  It is, in my opinion, included in the general damages awarded to her.

HEYDON J:   Do you say that that has been taken into account here by the President of the Dust Diseases Tribunal?

MR JACKSON:   Yes, your Honour.

HEYDON J:   It is in the 165,000 you say, do you?

MR JACKSON:   That is what we would say, your Honour.  Your Honour, in saying that, because of the brevity, if I can put it this way, with which the proceedings were conducted – and I do not mean that in any offensive way – what one has is a situation where we were saying that Sullivan v Gordon damages should not be awarded; the respondent was saying, “We want general damages of $180,000”; we said, “We are prepared to accept general damages of $165,000”, and that was what was awarded.  Consistently with our case the general damages that were awarded should have included anything that was available by way of general damages, but there is a possibility, your Honour, I accept, that that is not so, if ‑ ‑ ‑

HEYDON J:   Mr Justice O’Meally would have been astute to avoid double counting presumably.  He would not have given the 165,480 if he thought he had already allowed for some of it in the 165,000.

MR JACKSON:   Well, your Honour, it goes in the end to the appropriate relief if otherwise we were successful, the appropriate course of action.  However, one notices that there does not appear to be any suggestion, at least so far from the other side, that the appropriate course would be that if the Court were to be in our favour, that the matter should be remitted for recalculation of the general damages.  It may come – who knows.  But I am conscious of the point your Honour was putting to me.

McHUGH J:   The question of principle involved is to what extent one converts injury to physical capacity, or fragments injury to physical capacity into a number of specific heads, is it not?  In Sullivan v Gordon the rationale of the decision is that as a result of the accident the plaintiffs pre‑accident capacity has given rise to a specific post-accident need.  So the court says there is a specific post-accident need – query what does “need” mean in that statement – but it can be quantified.  It would appear to say it is different from a case where, as a result of the accident, the plaintiff can no longer given his voluntary services to a choir or to his tennis club or his golf club or whatever ‑ ‑ ‑

MR JACKSON:   Well, your Honour, may I come to that in just a moment? 

McHUGH J:   Yes.

MR JACKSON:   The point I would be seeking to make is that it may be that in some cases the amount to be awarded by general damages is larger than one might otherwise expect.  It would depend a little on the evidence.  But the point we would seek to make is that to do it on the basis of an assumed cost of getting someone in to do it or to replace the services is not an appropriate one for a number of reasons and in a sense across the board ‑ ‑ ‑

McHUGH J:   Well, it flows from what would have been particularised 30 or 40 years ago as restriction of use of movement as the particulars of your general damages claim – pain and suffering, restriction of use of movement.

MR JACKSON:   Yes.

McHUGH J:   So it has many manifestations.  You cannot walk as fast, you cannot do this and you cannot do ‑ ‑ ‑

MR JACKSON:   You cannot lift.

McHUGH J:   You cannot lift, yes.

MR JACKSON:   That sort of thing.  It is a question, your Honour, whether it ends up as part of an amount for general damages or as an amount cut up into particular pieces, as it were.

McHUGH J:   Well, Griffiths v Kerkemeyer in one sense started the rot, as Justice Callinan would probably say, because Blundell v Musgrave drew a very clear distinction between general damages and special damages.  It is a question as to how far the Court pushes this particular aspect of it.

MR JACKSON:   Or whether one puts it back in the box really, in a sense.

McHUGH J:   Yes.

MR JACKSON:   Before going to the aspect your Honour has been asking me about, could I just give your Honours, without going to the detail of them, references in the Western Australian Full Court which are to the same effect as those in Burnicle v Cutelli to which I referred a moment ago.  It is Maiward v Doyle [1983] WAR 210, Justice Kennedy at pages 218, 224 and 226 and Justice Olney at pages 234 and 236.

Your Honours, may I come then to the other approach, that this is something which is in a sense of its own kind.  The first thing we would seek to say, your Honours, is that one has to bear in mind that this is not a loss to the plaintiff.  It is a loss to the other person in the sense to which we have referred ‑ ‑ ‑

GUMMOW J:   Before we leave Burnicle, what do you say about Justice Glass’ judgment, page 34 starting between C and D, what he says is the principle that he comes to at F and G?

MR JACKSON:   Your Honour, what he says between F and G is that he cannot see any reason in point of doctrine why Griffiths v Kerkemeyer:

should include a need for nursing services due to an impaired capacity to do for oneself but should exclude the need for domestic services due to an impaired capacity to do for one’s family.

Well, your Honours, no one suggests, with respect, that there are no damages that are awarded in respect of that capacity.  The question is whether one calculates the damages as being part of general damages as being a reflection of the lost capacity or whether one calculates them as being part of a calculation based on the Griffiths v Kerkemeyer type of way.  That is by saying, “What will it cost to replace those services on a commercial basis?”  What we would seek to say, your Honours, is that his Honour’s view there expressed is one that is not correct for a number of reason to which I would now seek to come.

Your Honours, the first of them I would seek to say – and I really have said this in a sense – is that one is really looking at a financial loss, as it were, or a loss borne by the other person to whom the need related.  Your Honours will see that referred to in our written submissions in paragraphs 22 and 23.

CALLINAN J:   Mr Jackson, it is really a question of where you draw the line in a sense, is it not?  If I am injured and I have to employ a coach to coach my grandchild in cricket, and assume I am doing that now, if the principle is good, it would be good for that.  I could pay for Greg Chappell – give Greg Chappell $40 an hour to provide the service, no doubt much better than I would, but provide the service ‑ ‑ ‑

MR JACKSON:   You may need to hurry before he goes to India, your Honour, but leaving that ‑ ‑ ‑

CALLINAN J:   Yes, of course.  But, I mean, I think that is much what Justice McHugh put to you.  Capacity can be used in all sorts of ways and how you use it is a matter for yourself entirely.

MR JACKSON:   That is so, your Honour.  Your Honour, I am going in fact to come in just a moment, if I may, to a range of possibilities that would need to be resolved one way or another if the damages to be awarded are damages calculated on the basis of replacement in effect.  Could I just say this, your Honours, that the adoption of the Sullivan v Gordon principle – this in effect leads into what I would say in response to your Honour – means that one does have to look in some detail at the details of the parties involved. 

Could I take your Honours in that regard to what we say in paragraph 24 of our written submissions, first of all, and then I will take your Honours to two references in the decisions concerning this aspect.  Your Honours will see that – and if I could adopt what we say in paragraph 24 – there is not really any objectively determinable or otherwise ready criterion to determine when a plaintiff needs to care for other people. 

Now, your Honours, if I could go for a moment to what was said by your Honour Justice Callinan in Grincelis v House (2000) 201 CLR 321 at 343 in paragraph 62. Matters there referred to have some relevance to this. Your Honour said:

There are other matters which perhaps have not always attracted the attention that they deserve in the assessment of damages for gratuitous care, either past or prospective.  Some relationships are more fragile and less enduring than others.  Care provided gratuitously, for a time, may cease to be available or may simply cease because of fatigue or exhaustion.  It may also be easy to make wrong assumptions in modern times about who, and in what circumstances –

your Honour, I think there must be a word missing –

domestic services will ordinarily be provided, absent any disability.  It has not always been easy to distinguish between care, and services provided out of natural love and affection, and the additional burden imposed by the fact of injury. 

To similar effect, your Honours, can be seen what was said in the joint reasons in Van Gervan v Fenton (1992) 175 CLR 327 at 336. It is the first new paragraph on that page but I should say that the issue to which attention was there being directed was the desirability of having a market cost criterion in Griffiths v Kerkemeyer rather than looking at questions of actual cost, as it were.  Your Honours will see in that paragraph in the second line it is said:

the Court would have to make finding as to whether the care would continue to be provided and, if so, for how long.

Your Honours, I will not read out the paragraph but the relevant part of it goes through to the reference to “the vicissitudes of life” about halfway down the page.

Your Honours, what emerges, in our submission, is that first of all there is no ready criterion to identify what a person needs to provide to others; secondly, there are many people who, for example, provide volunteer services to others in need in all sorts of situations – Meals on Wheels, respite care for the carers of persons themselves needing care, volunteer emergency services.  Is the defendant to be liable for the commercial costs of the replacement of any of those persons?  Again, your Honours, and importantly, is the range of persons, the need to assist whom is to be the subject of the award, limited and, if so, how?  Is it limited to spouses, de facto or de jure, same sex relationships, parents and children, children and parents, foster children, foster parents, aunts, uncles, friends old and new, persons to whom an obligation is assumed, charitable works, work that is pleasing, work that is necessary, work that is chosen to be done?  And, your Honours, there are other difficulties to which we have referred in our written submissions in paragraph 29. 

In relation to what we have said in paragraph 29, subject to the approach taken in Griffiths v Kerkemeyer and the succeeding cases, there is not generally available a cause of action for the loss of services to A brought about by an injury to B.  Your Honours will see that referred to by Chief Justice Macrossan in Sturch v Willmott [1997] 2 Qd R 310 in a passage which commences at the bottom of page 314, about line 39, which goes through to page 315, about line 18.

Your Honours, absent causes of action such as loss of servitium, loss of consortium and the Lord Campbell’s Act claims ‑ ‑ ‑

McHUGH J:   If this principle is correct, it does cut across the law in the action for quod so far as the wife is concerned.  Best v Fox in the House of Lords established that the wife could not sue for loss of the services of a husband.  Under this principle perhaps she could.  That is to say, if a wife was injured and she cannot provide particular services to her husband, under Sullivan v Gordon she could get damages for what she could not get in an action for quod.

MR JACKSON:   Your Honour, that is so.  It is complicated in South Australia of course because in South Australia both are in reaction, no doubt, to Best v Fox.  Both parties can sue for loss of consortium.  I will come to the provisions in just a moment.  What I was going to say is that absent the classes of case to which I referred, consortium, servitium and Lord Campbell’s Act claims and apart from Griffiths v Kerkemeyer, the general position is that a person who suffers loss of services as a result of injury to someone else does not have a cause of action.  Your Honours, whatever may be the case in other jurisdictions, under South Australian law – your Honours should have copies of two documents:  the Wrongs Act 1936 and the Civil Liability Act 1936.

McHUGH J:   Could not the wife also recover in Queensland?  Did they not have a comparable statute in Queensland as well?

MR JACKSON:   Yes, I think so, your Honour.  It is not just South Australia but I think South Australia and Queensland may have been the only ones.

McHUGH J:   I think ACT may have been as well.  I am not sure.

MR JACKSON:   Your Honours, could I just say that under the law in South Australia – this was of course a case where the law of South Australia was involved, as I said a moment ago – Mrs Thompson could have recovered under what was section 33 of the Wrongs Act 1936.  Could I just say the Wrongs Act 1936 is now the Civil Liability Act 1936, the equivalent provision being now section 65. I think at the time of the injury in the present case, the relevant provision was section 33 of the Wrongs Act 1936.  Your Honours will see the relevant provision said:

(1)      Where a person causes injury to another by wrongful act, neglect or default, he shall . . . be liable in damages to the wife of the injured person for loss or injury suffered by her as a result of the loss or impairment of the consortium of husband and wife.

They were to be assessed in the same way as a husband’s claim.

McHUGH J:   So if the action had been run in South Australia the wife could have got damages as well?

MR JACKSON:   Yes.  It does seem, however, that whilst a cause of action is given, the damages that may be awarded pursuant to that cause of action are recoverable for the period up to the death of the injured spouse and not after.  Your Honours will see two cases dealing with that aspect of it.  These are not on the list, but if I could just give your Honours the references to them, holding that:  Sloan v Kirby (1979) 20 SASR 263 at 276 and 267. That is the first case. The second is Kite v Malycha (1998) 71 SASR 321 at 342 and 343.

GUMMOW J:   I am not sure I understand the territorial reach of section 33.  Does it mean “causes injury in South Australia”, does it?

MR JACKSON:   Yes, your Honour, presumably.  Well, I suppose there are two possibilities, broadly speaking.  One is that it is speaking – it is a question of whether one puts the words “in South Australia”, I suppose.  In one sense it is saying, “Where a person causes injury to another in South Australia by wrongful act” et cetera.  Another possibility is that it is saying, “Where a person causes injury to another, anywhere but”, to put it shortly, “the proceedings being heard in the South Australian court” or “a court of South Australia”, if I can use that term ‑ ‑ ‑

GUMMOW J:   It is not self-obvious that this action could not be brought in New South Wales.

MR JACKSON:   I am sorry, your Honour?

GUMMOW J:   It is not self-obvious that section 33 could not provide an action that was in fact litigated outside South Australia.

MR JACKSON:   No, your Honour.  No, indeed.  If one says the substantive law includes the law as to damages, it is not much of a leap, if one at all, to say this applies in a proceeding in New South Wales.

GUMMOW J:   Yes.

MR JACKSON:   And if it had been a case in federal jurisdiction, your Honours, it would seem there may be different questions perhaps involved because of section 79, but the ‑ ‑ ‑

GUMMOW J:   Yes.

MR JACKSON: Your Honours, could I - so that is the first thing. There is a remedy – a remedy is given by South Australian law. It is very difficult to say that the South Australian law in this area is moribund when one treats loss of consortium as something of purely antiquarian interests because one sees that there was section 31 enacted and one sees in the current Civil Liability Act that the provision remains, albeit with a different number.  That is the first thing, your Honours.

The second thing is in terms of statutory matters for the period after death, where death is caused by the tort, damages can be recovered under the provisions of the Compensation to Relatives Act.  They were to be found in Part 2 of the Wrongs Act 1936. They are now to be found in Part 5 of the Civil Liability Act.  Could I say, your Honours, to put it shortly, that one sees from section 20(1) of the Act in its earlier form and from section 24(1) of the Act in its current form that the potential beneficiaries in an action of that kind are the wife, the husband, parent, brother, sister and child of the deceased.

GUMMOW J:   What is the section now?

MR JACKSON:   Section 24(1), your Honour.

GUMMOW J:   Thank you.

MR JACKSON:   Now, I should also add that the damages available pursuant to Griffiths v Kerkemeyer were limited by the Wrongs Act 1935 by section 35A.  May I just mention this legislative history before going to the provision.  It was originally section 35A.  It became section 24H in I think 2002, and it is now section 58 of the Civil Liability Act.  Your Honours will see that the effect of the provision is to limit the persons in respect of whose services there may be recompense and to limit the amount that may be recovered.

GUMMOW J:   Did anything arise from a similar provision – I think section 15 of the Civil Liability Act 2002 (NSW), or does that post-date this case?

MR JACKSON:   No, your Honour, it excludes dust claims, I think.

GUMMOW J:   That would be right.  I do not know.  But there seem to be a lot of Griffiths v Kerkemeyer activity amongst State legislatures in recent years.

MR JACKSON:   Your Honour, it is very frequently a very large component of the damages.

GUMMOW J:   Yes, Justice Heydon points to section 3B(1)(b), which would take out the dust diseases ‑ ‑ ‑

MR JACKSON:   Yes.

GUMMOW J:   Dust diseases apart, there is now provision made to curb Griffiths v Kerkemeyer in some way in New South Wales by section 15.

MR JACKSON:   Yes.  Your Honours, I was also going to say that, in our submission, the effect of adoption of this head of damages really circumvents the rules relating to direct recovery.  The action for loss of consortium in a sense would become irrelevant so far as concerns husbands and wives.  The limits on the persons who could claim in death claims would become of rather historical interest because the plaintiff could claim in respect of them in either case.  In essence, your Honours, as we have sought to say in our written submissions in paragraph 30, what is involved is really a form of legislation and something which, in our submission, should have been left to Parliament. 

Could we also say this, your Honours, and this relates to paragraphs 32 to 34 of our written submissions and dealing with the lost years, if one seeks to base the notion on the plaintiff’s need, it really is very difficult to justify any award in respect of the lost years when the necessarily unpleasant but accurate hypothesis is that the plaintiff will not be there.

HEYDON J:   It is very sad, but it just reduces to absurdity the outcome.

MR JACKSON:   Indeed, your Honour, quite.

HEYDON J:   You get allowed money for services you would have provided to other people over a period of time in which you will be dead.

MR JACKSON:   Yes, quite, your Honour, yes.

HEYDON J:   And therefore, there would not be any services.

MR JACKSON:   That is so.  Your Honours, I said a moment ago that one of the effects of the adoption of the head of damages was to circumvent the rules relating to direct recovery, but of course, the coin in some respects has another side, and that is that it will allow double recovery and will allow double recovery in both the classes of case to which I referred earlier because the plaintiff on the one hand would get money.  On the other hand, the other persons would be entitled to claim.

Your Honours, the only other question, in our submission, is the question of costs.  In that regard we have set out what we seek to say in our written submissions and I do not wish to add anything to those.  It is a dependent matter.

I should give your Honours one reference.  In Luntz, the 4^th edition in Chapter 10 under the heading “Losses Suffered By Third Parties”, so far as loss of consortium is concerned, paragraph 10.1.1 summarises the position in other States.  Perhaps we could give your Honours a copy of the relevant pages of that.

GLEESON CJ:   Thank you, Mr Jackson.  Yes, Mr Joseph.

MR JOSEPH:   If the Court pleases.  Mr Jackson took the Court to his summary of the facts.  There are just a few further facts it is our submission the Court should be cognisant of as to what was at the root of this claim.  On page 5 of our written submissions I identify the tasks which the deceased formerly undertook in and around his home in (a), (b) and (c) which he no longer had the capacity to do by reason of his injuries.  I then refer to the fact that, as a result of those incapacities, a number of things happened – at the bottom of the page:  firstly, certain tasks were not done at all and the house was generally run down; secondly, a nephew came in to undertake those tasks but he ended up leaving to go to Darwin; and thirdly, and significantly, in our submission, a commercial mowing contractor was employed to cut the lawn edges every two weeks costing $50 per fortnight. 

Now, the core of the submission of the appellant is that these incapacities were not incapacities that justified a finding of pecuniary loss in the plaintiff, that it was somehow or other simply a loss of the wife, who then became the widow, because she suffered osteoarthritis.  In our submission, that misconceives the characterisation of the loss.  The fact that the wife did get a benefit from these activities is obviously something relevant but not, in our submission, critical to the establishment of a compensatory head of damage. 

What is significant is that because of these injuries the deceased had capacities that he had previously possessed and was exercising in the context of the family but was not able thereafter to do.  It really does not help, in our submission, to constantly refer to the fact that, firstly, the wife received the benefit of this and, secondly, the wife had a need for these things to be done. 

In our submission, when one looks essentially at compensation law – and I will come to Griffiths v Kerkemeyer shortly – the critical fact in determining the manner by which one approaches these incapacities is whether money can in an objective way convert the loss into some form of money.  Indeed, it seems that the ‑ ‑ ‑

GLEESON CJ:   I just want to ask you a question about the facts, Mr Joseph.  I must say that I had thought that we were concerned with Sullivan v Gordon and with the provision by the deceased of services to another.  What does that have to do with getting a commercial gardener in or a commercial lawn mowing service in?

MR JOSEPH:   Your Honour, the facts of Sullivan v Gordon, in our submission, were the incapacity of the plaintiff to look after her children but what was compensated was her incapacity.  The children just happened to be the beneficiaries of that exercise that she was legally obliged to provide because she was the mother.

GLEESON CJ:   Whose lawn was it?

MR JOSEPH:   The family’s lawn, the household’s.

GLEESON CJ:   But did he own the land?

MR JOSEPH:   I do not think we ever got to that detail.

GLEESON CJ:   I just wondered why getting a commercial lawn‑mowing service in is regarded as providing services to somebody else if it was his lawn.

MR JOSEPH:   Well, it was the family home, your Honour, and the tasks that he did – for example, cleaning the house, was the family house.  They all lived in the one house.  That is where, with respect, your Honour, to look upon who gets the benefit in the context of a family, obviously both the husband and the wife got the benefit.  I mean, they both lived in the one house.  Indeed, that is why, when one comes to the head of damages awarded – the Court was taken to those – there was no recovery for these losses in the pre-death period, and your Honours will see that it was given under Griffiths v Kerkemeyer. 

On page 197, Griffiths v Kerkemeyer was awarded for the future, that being mutual needs, both husband and wife needs, that co-existed up until the date of death.  What the court was concerned about, in our submission, although it is described as Sullivan v Gordon, was the loss of capacity in the husband to continue exercising that capacity post-death, true to the benefit of the wife, but the essential loss, in our submission, was his loss.  That is where, in our submission, this characterisation as someone else’s needs or someone else’s benefit is the side point.

GLEESON CJ:   In relation to the gardening and lawn‑mowing services, would it have made a difference to his claim if he was a bachelor?

MR JOSEPH:   No, he would have been entitled to that as well.  That, in our submission, shows the artificiality of the type of submission that is being made, namely, if a person is a bachelor, cannot clean his house, cannot do his lawn, he recovers it because it is described as a personal need, Griffiths v Kerkemeyer.  If he happens to have a wife beside him and she also happens to get the benefit of the lawns and the housework, et cetera, et cetera, it suddenly becomes a service to others and no longer entitled ‑ ‑ ‑

McHUGH J:   But it is not.  I mean, I am a little confused as to how this case was conducted, but I would have thought it was beyond argument that if he was unable to mow the lawn and had to bring in somebody to do it and it was a direct result of his injuries, then it was recoverable as special damages, at least up to the date of trial.  After that one is talking about interference with his general physical capacity which sounds in general damages.

MR JOSEPH:   Well, your Honour, that is the issue, with respect.  I mean, it is obviously post Griffiths v Kerkemeyer.  Whether it is special damage or general damage post-trial becomes rather blurred, but the real issue in the case is:  how do you assess the loss?  Do you assess it as simply a loss of satisfaction in not being able to do the lawns, or do you in fact assess it as a form of capacity that has a particular value and should be awarded accordingly at some form of hourly rate?

McHUGH J:   But it is part of his restriction of use and movement.  Why should you distinguish between the assistance he gives his wife and the assistance he gives his local church, or his son or his grandson, or his neighbours?

MR JOSEPH:   Your Honour, for a number of reasons, and we have sought to make this clear.  One is that in the context of the family he has an obligation to support his wife, a legal obligation to support his wife.  He does not have a legal obligation to ballroom dance, he does not have a legal obligation to coach his grandchildren or son, but he does have a legal obligation to support his wife who is suffering from osteoarthritis.

McHUGH J:   It may depend on her means.  I know the point you are making.

MR JOSEPH:   Yes.  So, in our submission, there is a clear distinction that can be made between the sort of submissions my friend made as to where does it all stop.

GLEESON CJ:   I am not suggesting this answers the ultimate question, but I have some difficulty in understanding how the cost of getting lawn‑mowing and gardening services is regarded as him providing a service to his wife.

MR JOSEPH:   Your Honour, that is not how we have argued the case in our submissions and that is the point we seek to make right at the outset.  He has capacities.  Some the wife receives a benefit for, some she does not, but at the end of the day it does not matter who gets the benefit of them if the incapacity sounds in some form of economic loss.  To direct all your attention to who receives the benefit misdirects the question as to what is the actual loss and whose loss is it.  Obviously there are lots of people who get benefits from exercising of capacities.  Employers do and other employees do and grandchildren, but the real issue, in our submission, here is that – and this is the point Justice Glass makes, in our submission, in Burnicle v Cutelli – when the Court comes to deal with compensatory law, the manner by which one approaches this question is:  has the person suffered an incapacity?  Is that incapacity one which justifies the payment of replacement cost for that incapacity?  Does it sound in monetary terms or does it simply sound in a loss of amenity, a loss of satisfaction terms?

McHUGH J:   No, it is a part of his restriction of use and movement.  The loss he suffered is the restriction of his use and movement and pain.  The fact that he does not do the work is in fact a benefit.  He does not lose anything by not doing the work.

MR JOSEPH:   Your Honour, that is, in our submission, an over‑generalisation.  He has the obligation to exercise his capacity.  He cannot exercise it any longer.  There are obviously some loss of movements that do not sound in the same fashion as this one does, namely, for example, if you stub your toe you still might be able to go to work, you still might be able to do everything around the house but you still have pain.  Not all losses of that type sound in – some sound only in general damages, some sound in other forms of damages.  Obviously if you have done your back in, it can sound in a loss of wages and you get on top of that your general damages for the restriction of movement.  Some people who have back injuries cannot do just sports.  That just sounds in general damages.  Other people with back injuries are so restricted that they need help.

McHUGH J:   But as a matter of principle one gets damages for injury to your physical, earning and other capacities and one gets general damages.  Special damages are payable for losses up to the date of trial.  In terms of loss of earning capacity, the courts seem to have made an exception and they allow you to prove your likely wages.  As a matter of practice you actually get a sum of them for that.  Griffiths v Kerkemeyer added another head along the same lines.  What you are seeking to do here in relation to the matter set out in paragraph 2(c) of your submissions is you are trying to get damages for an incapacity to assist the wife in undertaking heavy domestic duties.  Why should you get those damages as some sort of special damages any more than you should get damages for his incapacity to play tennis or to walk to church every other day?

MR JOSEPH:   Because these damages, your Honour, as it is reasonably obvious, sound more than in general damages because the damages to properly compensate, as opposed to under‑compensate, such an injured person, to properly compensate that person fairly and reasonably, in our submission, as the other courts of appeal in Australia and elsewhere in the world have said, justify the courts looking at it as a form of pecuniary loss and not simply as a matter of general damages.

McHUGH J:   Well, in Van Gervan we rejected this notion of pecuniary loss and spoke about plaintiffs’ needs.

MR JOSEPH:   Your Honour, the issue, with respect, is that the need gives the court the touchstone for what is the loss, but at all times it remains the plaintiff’s loss.  The need which Van Gervan refers to and which Griffiths v Kerkemeyer refers to is the manner by which the court values what is the plaintiff’s loss, but it is still at all times remains the plaintiff’s loss.  Our submission is that what subparagraph (c) – you could take out the words “to assist his wife in undertaking”, you can take out those words and you simply can say “an incapacity to do heavy domestic duties around his house”.

McHUGH J:   You might as well add “an incapacity to walk to church”.  Well, you do not get damages for that.  You would be fragmenting it.  It seems to me Sullivan v Gordon is just totally contrary to principle.

MR JOSEPH:   Well, I hope to convince your Honour otherwise.  It is, in our submission, consistent with principle, consistent with ‑ ‑ ‑

McHUGH J:   Look at the results in this case, Mr Joseph.  He gets $165,000 for restriction in use of movement in relation to carrying out domestic duties and gets $165,000 general damages for everything else – pain, suffering and his restriction in use of movement to walk to the shops, to drive his car, to do all these things.

MR JOSEPH:   Well, no, with respect ‑ ‑ ‑

McHUGH J:   It just seems absurd that there should be more awarded for this particular head than the whole loss of his capacity.

MR JOSEPH:   Your Honour, it is no different that it is often that the Griffiths v Kerkemeyer awards are well in excess ‑ ‑ ‑

McHUGH J:   Well, we know that.

MR JOSEPH:   ‑ ‑ ‑ the highest awards.  The reason, with respect, your Honour, is because when the courts really attend to the issue of what is needed and what is the cost of that need, it becomes remarkable how expensive it is to replace someone who has been injured in a certain fashion.

McHUGH J:   Yes, I know, and it was a bad turning in the law.  The reason that plaintiffs’ lawyers now have to contend with Civil Liability Acts around the nation is because of this sort of head of damage.

MR JOSEPH:   Your Honour, can I just say this.  Sturch v Willmott was decided in 1995 – Gibraltar did not fall.  Sullivan v Gordon was decided in 1999 – Gibraltar did not fall.  The Civil Liability Acts came about for various reasons, but it did not come about because of Sullivan v Gordon and, indeed ‑ ‑ ‑

McHUGH J:   But it was one of the factors.

MR JOSEPH:   ‑ ‑ ‑ no, with respect, your Honour – indeed, it has been embraced in the Civil Liability Acts in many ways.  You see what the Civil Liability Acts have done is to cap Griffiths v Kerkemeyer awards in a certain fashion because of the hourly rates but they have not generally excluded Sullivan v Gordon awards.  Indeed, in Queensland they have specifically embraced the compensation for care which injured plaintiffs give to what they call homemakers, or households.  So, your Honour, to ‑ ‑ ‑

GUMMOW J:   What is that relevant section in Queensland? We had better know specifically.

MR JOSEPH: Section 59(3) of the Civil Liability Act 2003:

Damages are not to be awarded for gratuitous services replacing services provided by an injured person, or that would have been provided by the injured person if the injury had not been suffered, for others outside the injured person’s household.

So, with respect to the fears that your Honour, as I think Mr Jackson said, put Griffiths v Kerkemeyer back in its box because of this head of damage have not been seen as an issue in any of the courts which now extend to Western Australia, Queensland, New South Wales, England, Canada, because of the fears that this sort of head is going to lead to an explosion in awards of damages.  Your Honour, it is our submission that this characterisation of the loss as being someone else’s loss is misdirected.

GLEESON CJ:   Just before you leave your paragraph 2 of your written submissions, Mr Joseph, a possible point of view is that paragraphs 2(a) and (b) deal with a rather different issue from that which is the subject of paragraph 2(c).  The case was conducted below, as I understand it, on the basis that the judge was just presented with heads of damages claimed and figures.  Were (a), (b) and (c) all included under the head that was described as Sullivan v Gordon damages?

MR JOSEPH:   I think to that end I have to take your Honour to page 159 of the appeal book.  This was the background document to the claim which was an assessment made by an occupational therapist as to the incapacities of the plaintiff.  Your Honours will see, for example, at 161 reference to household tasks at 20; 25, gardening; 30, household maintenance, and then for the amenities, loss of amenities, hobbies.  And then your Honours will see that there is reference to Mrs Thompson’s osteoarthritis at the next page, 162, 25.

All that did, in our submission - and that is referred to in a medical report at page 61, the osteoarthritis - is not to change the nature of the claim from one of his incapacities to her needs, but rather to simply identify why it is that he did more than normal, why it is that the hours that were being sought were as large as they were.  So, in our submission, to ‑ ‑ ‑

GLEESON CJ:   They presumably would have been even larger if he was a bachelor.

MR JOSEPH:   Yes, indeed.  Well, if you cannot do anything, if he is the ‑ ‑ ‑

GLEESON CJ:   Well, if he was a bachelor living alone, I suppose he would have had to do all the vacuuming himself.

MR JOSEPH:   Yes, and indeed, if he was a bachelor, your Honour, there would have been no argument that he would have been entitled to the damages, because it was a personal need and would have fallen squarely within Griffiths v Kerkemeyer.  It was his own need to get the floors done, because no one else lived in the house, and that is, with respect, as I said earlier, the artificiality of what is being created here.  If you live alone, the same incapacity, you can get all the hours without discount.  If you happen to share a house with someone who happens to get also the benefit of your exercising of capacity, if it is something that becomes a hobby or it becomes someone else’s need.

McHUGH J:   But that is not right, Mr Joseph.  You are entitled to damages in both cases.

MR JOSEPH:   Yes, but it is the quantification.

McHUGH J:   Yes, but it does not make any difference whether the person is a married man or a bachelor.  If the married man provides the same services as the bachelor, they both get the same damages.  You are trying to push it to a situation where the married man will get more because of services he provides to his wife.

MR JOSEPH:   No, your Honour, with respect, that is not the case.  What we are ‑ ‑ ‑

McHUGH J:   That is what Sullivan v Gordon said. 

MR JOSEPH:   No, it did not, with respect.  There is a difference of emphasis in all of the cases, including what was said in Sturch v Willmott by Justice Davies, as to whether this is a form of services or whether it is a form of damages for loss of capacity.  If it is a form of damages for loss of capacity within the family unit, it is recoverable.  That is, in our submission, the short point of Sturch v Willmott and Sullivan v Gordon.

McHUGH J:   That is an assertion, but what is the principle?

MR JOSEPH:   The principle is that if you have a pre-existing capacity which you exercise doing domestic work which you were required to do because of need, either be it a social need being because you are on your own or because of a legal need because you are married and you have to provide it to your wife, and there is interference with that capacity, then the court is obliged to value that loss, not as some form of amenity but as a loss of capacity that has economic value of the type referred to in Griffiths v Kerkemeyer.

McHUGH J:   It seems to me beyond argument it is recoverable as general damages, but what you are seeking to do is to fragment the various incapacities and say for this particular incapacity you are entitled to be paid commercial rates.  It is a question of what damages are reasonable on the whole.

MR JOSEPH:   There is no doubt about the latter, your Honour, but the fact is that damages are already fragmented in one sense, as I have tried to indicate earlier.  The back injury is fragmented into the work situation.  It is fragmented another way when it comes to amenities.  It is fragmented another way – it is all the same back injury ‑ ‑ ‑

McHUGH J:   But you get a lump sum for your pain and suffering, for the fact that you cannot do this, for loss of libido, whatever it may be.  You do not fragment it and say, “What is the commercial value of each of these incapacities?”, except in two cases.  First of all, the courts, as a matter of practice, have done it in relation to loss of earning capacity and since Griffiths v Kerkemeyer they have done it in relation to specific needs, but now you want to add a new special category.

MR JOSEPH:   Your Honour, yes and no.  It is conceded that when you look at Griffiths v Kerkemeyer it was only concerned with the personal needs of the injured plaintiff and we do not dispute that and we say so in our submissions.  But what we say Griffiths v Kerkemeyer did in a number of important ways is to reveal openly the conceptual basis upon compensation and how it is and why it is that certain capacities, if injured, such as self‑care, should be quantified, not in general damages fashion but as a form of pecuniary loss. 

We simply say, a là Justice Glass, that if you look at Griffiths v Kerkemeyer for a principle as to what should happen to people who are incapacitated to do things other than self‑care, that is, to care for others, you will not find it in Griffiths v Kerkemeyer, and we do not dispute that either.  But what we do submit is that you will find in Griffiths v Kerkemeyer and in authorities that have been following this principle since sufficient analogy and compatibility with that principle to justify this award of damages.

GUMMOW J:   If we can just lift our sights from New South Wales for a minute, do you rely on Daly v General Steam Navigation Co in the English Court of Appeal?

MR JOSEPH:   Your Honour, yes, except that it made a distinction, as I recall, between past and future ‑ ‑ ‑

GUMMOW J:   There is a later case of Lowe v Guise.

MR JOSEPH:   We also rely on that case as well.

GUMMOW J:   Is that on the list of authorities?

MR JOSEPH:   Yes, it is, your Honour.  The problem with Daly – and Justice Reynolds pointed this out – is that what they did in Daly is that they split up the award of damage for the cost of the housekeeper differently pre‑trial and post‑trial and they awarded the plaintiff special damages for pre‑trial, being the cost of the housekeeper which they brought in, and post‑trial, at 701c the court said:

Once the judge had concluded that to put the plaintiff, so far as money could do so, in the position in which she would have been if she had never been injured, she was going to need, in the future, domestic assistance for eight hours a week, it seems to me that it was entirely reasonable and entirely in accordance with principle in assessing damages, to say that the estimated cost of employing labour for that time, for an appropriate number of years having regard to the plaintiff’s expectation of life, was the proper measure of her damages under this heading.  It is really quite immaterial, in my judgment, whether . . . the plaintiff chooses to alleviate her own housekeeping burden which is an excessively heavy one, having regard to her considerable disability to undertake housekeeping tasks –

The housekeeping tasks that they are referring to, in our submission, relate to a house which she is a member of which included other members of the family.  So other members of the family were getting the benefit of her housekeeping, but the trial judge awarded this head of damage separate from general damages as a special head in respect of future economic loss.  In our submission, what was said at page 701 is totally consistent with what we are submitting here.  Justice Templeman agreed and so did Justice Ormrod at page 703.

GUMMOW J:   Perhaps if I can put it this way, a more conceptual analysis of these questions may be in Lowe v Guise.

MR JOSEPH:   Yes, your Honour.  That of course was a case where the son was looking after the brother for I think 70 hours a week.  As a result of the son’s injuries, he could not look after the brother any longer.  So it was clearly a case where the benefit – and he was not being paid for those extra hours but he lost the capacity to undertake those extra hours.  The Court of Appeal said quite clearly that following in particular – paragraph [38] I think is the ratio of Justice –

The present case, however, is one where, as must at present be assumed to be correct, the disabled brother is part of the household and one whose care had, prior to the accident, been the appellant’s prime responsibility.  That care was not a mere gratuitous favour bestowed on a third party, but was a responsibility of his own, adopted by him and owed to his brother, but also to his mother with whom he shared the household.  When he lost the ability to care for his brother for more than 35 hours per week, he lost something ‑ ‑ ‑

GUMMOW J:   We can read all that.  That is all in factual minutiae, but what is the principle that governs it and to what ‑ ‑ ‑

MR JOSEPH:   Well, your Honour ‑ ‑ ‑

GUMMOW J:   ‑ ‑ ‑ just a minute – and to what extent do they grapple with the matters Justice McHugh has been putting to you?

MR JOSEPH:   Well, I think at the top of that page, at the top of 469, he says:

But he has suffered a loss nevertheless because, even though his care was provided gratuitously, it can and ought as a matter of policy to be measured in money’s worth.  To the extent that his mother has by her own additional care mitigated the appellant’s loss, it may be that the appellant would hold that recovery in trust for his mother.

[39]     Were it otherwise, then as Mr Anderson has submitted, the loss of an injured person’s ability to look after the family garden would be compensated, but the loss of his ability to look after his brother would not be (otherwise than as might be reflected in the award of general damages).  That would bring no credit on the law.  In my judgment the result which I favour would be within the logic and policy of the existing state of the English common law.

So what his Honour did in reality – there were two things that the ‑ ‑ ‑

GUMMOW J:   There appears to have been a Pearson Report in 1978.

MR JOSEPH:   Yes, which is referred to by Justice Reynolds in Burnicle v Cutelli.  But there were two matters that the court was concerned with in Lowe v Guise.  The first was the fact that there was a Scottish Act that allowed for this type of recovery and the argument was, “If the Scottish Parliament had to pass such an Act and we have not, why should we now make the common law consistent with that legislation and is that a problem for us?”  The court said, no, that is not a problem and that the reason why they did not pass an English Act is because they assumed the law was as they were just about to state it.

McHUGH J:   But one can agree I think it was unarguable that in this particular case the son was entitled to be compensated for the particular loss, but the question, it seems to me, that you have to provide a persuasive answer and your opponent a negative answer to is this:  is the value of the loss of capacity to be equated with the cost to the beneficiary of the replacement cost of the services lost?  Now, it seems to me a non sequitur to say that they are equivalent – the value of his loss of capacity can be measured by the cost to the beneficiary of the replacement cost of the service lost as a result of that diminution of capacity.  That is what you have got to contend for.

MR JOSEPH:   Well, your Honours, the question is what, as referred to by Justice Rix, is to be measured in money’s worth.  How do you measure this loss in money’s worth?  Do you measure it as they did in Burnicle v Cutelli, namely, some form of loss of satisfaction, or do you measure it as something else?

McHUGH J:   It is more than loss of satisfaction.  It is part of his loss of restriction of capacity and it may well be the case here that the general damages that your client was awarded was less, perhaps much less, than they ought to have been.  But it is another question altogether to say you can break that loss of capacity into two categories, one generals and one this Sullivan v Gordon type division.

MR JOSEPH:   Well, your Honour, there might be some incapacities that one gives which do not sound in that particular way as I suggest, namely, as an hourly rate.  There might be many incapacities that a husband gives to a wife – as we have suggested in our submissions, getting tea in bed – which it is not reasonable to say, “Look, what would it cost to get someone in at 6 o’clock in the morning to get” ‑ ‑ ‑

McHUGH J:   Why not?  I mean, that is part of his loss of capacity ‑ ‑ ‑

MR JOSEPH:   It is.

McHUGH J:   ‑ ‑ ‑ and he is entitled to general damages for it.

MR JOSEPH:   Indeed, another example is the loss of capacity to walk the dog.

McHUGH J:   Exactly.

MR JOSEPH:   Now, your Honour, one can multiply these possibilities endlessly, but one is reminded of that dictum where it is said just because you do not know when day stops and night starts, you know that at noon it is day and at midnight it is night.  Now, it really does not answer the question to simply pose extreme examples where it becomes difficult.  For example, there was a case in New South Wales where someone tried to get the cost of walking the dog.  The court refused it.

Now, there will be no doubt cases in Griffiths v Kerkemeyer where some people argue they need 24‑hour care and the court will refuse that as well, but just because there are examples of excess does not mean that the principle that some of these services, some of these lost capacities, are not fairly compensated for by simply an award of general damages. 

Now, obviously in one sense we do not mind if it is general damages or special damage, but the problem is true compensation.  As the articles of Regina Graycar say, Hoovering is not a hobby.  People do not go next door and ask their neighbour can they do some Hoovering.  What consequence flows from that, in our submission, is that it is wrong if the incapacity is one of a domestic nature to simply push it to one side and put it into a general damages category and saying this is just but a mere example of someone’s physical incapacity when the true loss to the family more likely than not comes about because either it does not get done or it is done by someone else.

McHUGH J:   Families are not plaintiffs.

MR JOSEPH:   Well, your Honour, but they operate, in our submission, within a calculus that the courts have always recognised give rise to special relationships and special duties.  In other words, if you are a husband or if you are a wife or whatever and you suffer certain losses and you are married, then you do get something further because of your relationship and the loss to the relationship.  They might not be plaintiffs, but they are part of the loss.  The loss is greater, obviously, in certain situations than in other situations, depending on your ‑ ‑ ‑

McHUGH J:   Such as?  Give me an illustration, an example.  One where a married person gets more damages than a bachelor, suffering the same injury.

MR JOSEPH:   Well, one can assume, for example, if you cannot go on holidays with your wife because of your injuries and that the only time of year you have with your wife is that holiday, then obviously that loss is much greater than if you are a single bachelor with no special ties.

McHUGH J:   I do not know.

MR JOSEPH:   I appreciate your Honour’s problem ‑ ‑ ‑

McHUGH J:   He must have a very happy marriage.

MR JOSEPH:   ‑ ‑ ‑ but you understand why it is that when one considers what is the nature of the loss, to have a loss in a family relationship, or if you are, for example, the wife who stays home and does the cleaning and cooking and the husband is working full-time and the wife gets injured and none of that work gets done because the husband is working, then you are upset at the fact that your husband has to live in a dirty home is obviously greater than if you lived alone.

McHUGH J:   It may be that the common law, contrary to Best v Fox, should have given the wife a cause of action in those situations.  Queensland gave a cause of action after Best v Fox, and obviously section 59(3) of the Civil Liability Act to which you refer us is intended to maintain the Queensland statutory situation, which applies in South Australia as well.  But we are dealing with the common law here and ‑ ‑ ‑

MR JOSEPH:   Well, as I referred to in the introduction to our submissions, the common law has always recognised that interference with family relations is a matter of compensation.  True it is they only gave it to the husband ‑ ‑ ‑

McHUGH J:   It took Lord Campbell’s Act to bring about ‑ ‑ ‑

MR JOSEPH:   Well, that was addressing another issue.

McHUGH J:   Yes, I know, but still the common law did not provide for the wife if the husband was killed.

MR JOSEPH:   But the reality was that this issue which is now being aired here was generally not a problem whilst loss of consortium actions survived, because the very loss which we are submitting should sound in monetary terms or pecuniary terms, and which was in fact after Toohey v Hollier awarded in monetary terms, is no longer available.  But up until that point it was taken away by statute, but the common law, the very common law your Honour is talking about, not only identified it but in fact awarded the very type of compensation which we submit should be awarded in this case, except that ‑ ‑ ‑

McHUGH J:   But it is not.  What is the exception?  It is a pretty big exception.

MR JOSEPH:   Except that the loss of capacity from which the husband had previously suffered is now being recognised as to where the true loss was, namely, in the injured plaintiff.

McHUGH J:   Yes, but in the common law what the husband got compensation for was the loss of his wife’s services.  You want to turn that on the head and say he ought to get compensation for the fact that he cannot give his wife services.

MR JOSEPH:   No, your Honour, with respect, that is not the type of compensation we submit here.  We are not submitting that we should get compensation for what he gives to his wife.  What we are submitting is – and that is what the characterisation – if you are locked into that characterisation, with respect, your Honour, you would never get past square one.

McHUGH J:   Yes.  Now, your point is right, that what he gets compensation for is the loss of his capacity, but the question still remains as to whether the value of that loss of capacity is to be equated with the costs of the services to the wife, or whoever it might be, which replaces the services that are lost.

MR JOSEPH:   Your Honour, we concede this, obviously, that there will be some incapacities – and I use the getting the tea in bed or turning over the pillow or something like that – which it would not be reasonable to award the type of hourly rate that we submit is applicable in certain other activities.  But the Court has to develop rules and has developed rules in the last 10 years that defines the limits as to what sort of activities are justifiably awarded to such an incapacity at an hourly rate as opposed to those that will simply go into the general damages basket. 

For example – as I say, the examples can be multiplied – if the loss of capacity is unable to do dancing every Friday night, no one is going to suggest that there should be awarded – and certainly not from this side of the Bar table – some person who goes with the wife to do the dancing because the husband cannot go.  It is not every activity which we submit that gives rise to this award.

Critical to the distinctions that have to be made are concepts of obligation, are concepts of necessity, of concepts of whether the function being referred to is a function which is generally recognised as having a commercial value.  So when we turn to the appeal book and you see that an occupational therapist has in fact referred to certain functions and given them hourly rates, that is some evidence that the activity being referred to is one which can justify an award of damages in this form.  But not every activity, obviously, will give rise to that type of award, and that is not what is being sought here.

GUMMOW J:   You referred us to Lowe v Guise in the English Court of Appeal.

MR JOSEPH:   Yes, your Honour.

GUMMOW J:   Any other authorities outside Australia?  We need to know these matters.

MR JOSEPH:   Your Honour, I think clearly Lowe v Guise is the last word of this in the United Kingdom and of course it followed Daly v General Steam which obviously created very much the backbone of Lowe v Guise.  Can I take your Honours to the two Canadian cases.  The first is Kroeker v Jansen (1995) 123 DLR (4^th) 652. The majority consisted of Justices Gibbs, Goldie and Prowse and involved an injured married woman who after her marriage to her husband – in paragraph [5] – continued to share with the husband household tasks. Then she had problems as a result of her injury – the evidence is described at 654 and 655 – to do things like vacuuming, cooking, cleaning windows, moving furniture, any pushing or exertion, carrying grocery bags and that is all revealed in the evidence between 654 and 655. The court describes the issue at paragraph [6]:

The diminution in, or impairment of, the respondent’s ability to perform normal household tasks is readily apparent from her testimony.  But, according to the appellants, Pickering v Deakin and DeSousa v Kuntz constitute a jurisprudential barrier to recovery.  The principle relied upon for the barrier argument is to the effect that when what is done by one spouse for the other spouse falls within the “for better or for worse” marriage scale the loss is not compensable.

Then at paragraph [7] they refer to the fact that those decisions have been overtaken by the evolution of judicial thinking manifested in a number of decisions and the one at paragraph [9] they say is sufficient to refer to:

the emergence of a different approach, an approach which recognises that housekeeping and other spousal services have economic value for which a claim by an injured party will lie even where those services are replaced gratuitously from within the family.

That is the ultimate finding, in our submission, of this case.  They refer to Daly v General Steam Navigation ‑ ‑ ‑

GUMMOW J:   They split three to two, did they not?  That is the first thing to note, presumably.

MR JOSEPH:   Yes.  Then they refer to Hall v Miller and, finally, Fobel v Dean in paragraph [13].

GUMMOW J:   What did the minority say?

MR JOSEPH:   The minority at paragraph [39]:

How can it then be said that compensation is due to Mrs Kroeker for the value of any part of the household work which she will not do, and will not have to pay others to do, because she lives with a husband who does it for them both?

Then they go through Daly and Fobel v Dean and essentially determine that because the husband replaced the wife’s work she was not entitled to recovery.  At paragraph [55]:

Were Mrs Kroeker in a different domestic situation she might well suffer financial cost by reason of loss of some of her housekeeping abilities, and would be entitled to recover that cost.  So far as pecuniary loss and cost are concerned our present compensation system – instead of providing uniform awards based on the nature of the injury suffered – compensates each injured person for the loss and cost actually suffered, or likely in future to be suffered, by that particular person . . . A person living alone –

et cetera, et cetera.  So, in essence, the reasoning was that because there was a subvention through the imposition of the husband there was no loss suffered, which is ‑ ‑ ‑

GUMMOW J:   What do you say about paragraph [57]?

MR JOSEPH:   Excuse me a moment, your Honour.  Your Honour says that with a smile.

GUMMOW J:   Well, it seems to, as it were, anticipate some of the things that have been put to you this morning.

MR JOSEPH:   Yes.  Well, I think we have answered it.  That is ‑ ‑ ‑

GUMMOW J:   But you answer it by reference to this concept of family.

MR JOSEPH:   Yes.  Well, obligation.

GUMMOW J:   And husbands and wives.

MR JOSEPH:   No, no, not just that, your Honour.  Obligation.

GUMMOW J:   Probably one-third of children born in this country these days are illegitimate, in the old way of looking at it.

MR JOSEPH:   That is why I keep saying obligation, your Honour.  If you do have a child, whether it is legitimate or illegitimate, you are obliged to look after it.  If you have a husband or wife you are obliged to look after each other.  That is one way – I understand that is only one way one can confine the class.

GUMMOW J:   You will not solve this problem by 1950s’ paradigms, I do not think.

MR JOSEPH:   The other way, as I have just indicated, how the Queensland legislation sought to qualify it is by reference to households.  If you limit it to households, together with certain obligatory relationships, that would overcome those 50 paradigms that your Honour is referring to.

GLEESON CJ:   Could I take you back to the opening words of paragraph [57]?

MR JOSEPH:   Yes, your Honour.

GLEESON CJ:  

If unpaid housework which a plaintiff is prevented from doing, and will neither need to do nor need to pay anyone else to do ‑ ‑ ‑

MR JOSEPH:   Yes.

GLEESON C:   So he seems to be putting to one side, as something that is not a problem, housework that you will need to pay somebody else to do.

MR JOSEPH:   Yes, they accept that is ‑ ‑ ‑

GLEESON CJ:   That presumably covers paragraph 2(a) of your written submissions.

MR JOSEPH:   We are back to there.

GLEESON CJ:   Well, what I am trying to understand is this.  There seem to be two or three different lines of argument in play here.  The concept of general damages, as distinct from special damages, in a jury trial where a jury is going to award a single lump sum by way of compensation, might not be exactly the same as the sort of concept you see referred to in paragraph [10] for convenience in this Canadian case in Daly, where the question is whether – where there is no jury and a judge has his calculator out.  You ask whether you treat something as “a separate head of damage”.  So we are all accustomed now to judges with the calculator out treating loss of future earning capacity as a separate head of damage, but it would be part of general damages in a jury trial.

MR JOSEPH:   Yes.

GLEESON CJ:   So the question whether something is to be treated as a separate head of damage is perhaps not identical with the question whether it is part of general damages, nor is it identical with the question of the kind raised in paragraph [57], whether you measure it by calculating the commercial value, or the commercial cost, of getting somebody else to do it.  There may be two or three different problems that relate to this and, as has already been mentioned, there looks like a different problem involved in paragraph 2(a) as compared with paragraph 2(c) of your written submissions, both of which, however, were subsumed under the description “Sullivan v Gordon damages”.

MR JOSEPH:   They are, but we submit that the heading was a loose use of that principle because obviously in Sullivan v Gordon the Court was there solely concerned with one incapacity, namely to look after the children, whereas these are different types of incapacities.  I mean, your Honour, I have tried to sort of back off from (c).  This issue is whether it really was one to assist the wife or not as being not a particularly relevant determination as to how you value the loss.  But clearly the dissent in Kroeker would not stand good, in our submission, post Griffiths v Kerkemeyer.

GLEESON CJ:   It might be one question whether you allow something as a separate head of damage and a different question whether you calculate the damage by reference to the commercial cost of providing some kind of service.

MR JOSEPH:   Your Honour, the submission we make is simply after Griffiths v Kerkemeyer.  This distinction as to heads of damage becomes rather academic and that the real issue, as your Honour just summarised, in this case is the manner of assessment.  Do you take the Burnicle v Cutelli line where you pretend, in our submission, that the real loss is all in the hands of someone else and therefore you simply award some sort of general damages component of a small type, or do you look more closely at the nature of the loss in the hands of the plaintiff as an individual firstly and as a member of a family unit or household secondly?

GLEESON CJ:   Why is it assumed that if something goes into general damages it is going to be smaller?

MR JOSEPH:   I mean, your Honour, it obviously does not need to be, but the ‑ ‑ ‑

McHUGH J:   Experience teaches us that it ‑ ‑ ‑

MR JOSEPH:   It gets lost.

McHUGH J:   No, no, it gets smaller.

MR JOSEPH:   It gets smaller, yes.  It gets lost in a ‑ ‑ ‑

GLEESON CJ:   What is the principle behind that? 

MR JOSEPH:   Well, because it is not identifiable, I guess, if you can just say, “Well, I will give 165,000 general damages” one does not have to worry about how much of it is ‑ ‑ ‑

GLEESON CJ:   I can understand that in the days when juries did this and they were invited by judges to fix a sum and then stand back and look at it and they would say, “Goodness gracious me”, that might lead to a diminution of damages as compared with what the judge does with the calculator.

MR JOSEPH:   One gets the reaction, with respect, which we got from your Honours this morning when one looked at the sum awarded at $165,000 and said, “Oh, gee, look at the sum awarded at general damages.  There must be something gone wrong here.”  I mean, it was your Honours’, with respect, reaction at the outset that sort of indicates that when the figures are done even in an open and identifiable fashion, size does ultimately matter and it becomes the reason, well, we must have done something wrong, even though, with respect, when you looked at what his Honour did, namely, I cannot remember, four hours a week at 20 bucks an hour, the mathematics is open, apparent.

McHUGH J:   Well, I know it is, but if you ask yourself is $330,000 too high for general damages in this case you might get a different answer from the answer that you get in relation to the 165,000.

MR JOSEPH:   Well, you might, your Honour, but, I mean, I guess I can understand why, given the state of general damages.  But because these sorts of losses are sort of often, now that they are in statutes more often than not, are simply seen as part of an entitlement and one does not look to general damages as specifically as one used to.

GLEESON CJ:   There may be a difficulty about taking Griffiths v Kerkemeyer to its logical conclusion if Griffiths v Kerkemeyer is not logical, but is just there now as an accepted anomaly that it is too late to do anything about, which some of the authorities referred to this morning seem to suggest.

MR JOSEPH:   Sure.

McHUGH J:   Another alternative, I do not know whether that should be open to a court as a matter of principle, is to do what the English Law Reform Commission said after Daly’s Case, namely, that you award no damages for pecuniary loss, either for the past or the future unless the court is satisfied that the plaintiff will hire labour to replace the services.  Unless you are satisfied of that, you just add a bit more to the general damages.

MR JOSEPH:   In our submission, it was not adopted by the English Court of Appeal either and for good reason, in our submission.

McHUGH J:   No, I know it was not, and the English Law Reform Commission criticised Daly, said it was illogical.

MR JOSEPH:   But it is illogical between the past and the future.

McHUGH J:   Yes.

MR JOSEPH:   But given that it would require some form of obligation for a long time in the future as to whether you are or are not going to hire someone, a certain unreality comes about it, about such a requirement.

McHUGH J:   Any more than the case of loss of earnings, 50 years into the future?

MR JOSEPH:   That is where, with respect, we submit, this concept of necessity has a part to play, because if one is talking about earnings, one knows that you generally have to work to earn a living to pay for the bread on the table.  Similarly, if you have a serious injury and you need some sort of care, it justifies some finding of necessity and therefore, to give it for a long term in the future and we submit given here that there is the pre‑existing relationship, the pre‑existing exercise of that capacity for a long period of time, and the fact that he died at 61 years of age, it is not unreasonable to assume that that requirement would be satisfied in this particular case.

But I agree in this sense, your Honour, that all damages involved in this respect of the future have some degree of speculation, as much as be it the fact of loss of consortium - I mean, whether or not the relationship was ever going to survive, and yet, the court had no problem in accepting and determining those as a form of compensable damages.

GUMMOW J:   Now, is there any other Canadian case - you said there were two.

MR JOSEPH:   Yes, there was one, your Honour.  It is ‑ ‑ ‑

GUMMOW J:   Carter v Anderson.

MR JOSEPH:   Yes, your Honour.  In our submission, whatever be its precedential value, it does describe the issue quite well.  The issue arises in a similar fashion, namely:

A thirty–year-old woman was injured in an automobile accident, and suffered permanent partial disability.  The trial judge awarded non-pecuniary loss and for loss of earning capacity, but declined to make a separate award for loss of housekeeping capacity.

That finding was not upheld.  The court looks at this issue starting at page 468 at the bottom:

The appellant submits that the trial judge concluded that there was no separate head of damages for loss of future housekeeping capacity.  The respondent suggests that the trial judge did not hold as a matter of law that there cannot be a separate award for loss of housekeeping capacity, but simply that the evidence was not sufficient to support a separate claim for loss of future housekeeping capacity in this case.

The first step was to analyse and determine the characterisation of the trial judge’s decision, and in Dorie v Williams Justice MacDonnell:

As to the claim for loss of housekeeping capacity, I have reviewed the decision in Daley . . . and in my opinion this case can be distinguished from that –

Then his Honour refers to Daly.  At the bottom of page 469:

The appellant submits that the trial judge erred in law in refusing to make a separate award for loss of future housekeeping capacity.  In addition to Daly, supra, she relies on the following cases –

Fobel v Dean is one in particular which supports this separate head of damage claim.  Then at page 472 the court refers to Kroeker v Jansen which I have just taken the Court to.  Then at the bottom of that page:

In summary, the Appeal Courts in Saskatchewan, British Columbia, Alberta, Prince Edward Island, and Newfoundland have approved of the approach in Daly and Fobel.  We have not been provided with any authority specifically distinguishing or disapproving of this approach, other than Dorie, supra.

In Nova Scotia, although awards related to future housekeeping requirements have often been made, there does not seem to be consistency in the rationale for the awards.  In some cases the loss is included with the cost of future care . . . an award of $23,000 was made on the basis of amounts previously paid for weekly housekeeping services.  In Woods . . . this Court reduced an award . . . from $60,225 to $10,000 because there had been no evidence . . . The only case where the matter was addressed according to the more modern loss of capacity analysis, was Lawrence v Bateman . . . 

In my opinion, the modern advancement of this area –

and this is what we would submit this Court should adopt –

of the law of damages, which is premised on the concept of direct economic loss of the plaintiff whose ability or capacity to perform homemaking or housekeeping tasks has been impaired, should be acknowledged and accepted in Nova Scotia.  Future loss of capacity, where proved, should be compensated separately whether or not replacement help has been paid in the past.  The award for lost capacity should not simply be part of the non‑pecuniary damages as “an element of loss of amenities”.  Housekeeping capacity is ordinarily not an amenity.  Its loss is not an intangible loss comparable to the appellant’s loss of ability to dance, to skate, or to ride horses.  As noted by appellant’s counsel, Mrs Carter did not go next door and ask to mop her neighbour’s kitchen floor because she enjoyed mopping.  Managing one’s home and keeping it clean and organized is important and necessary for the health and safety of the family.  The partial or total loss of that ability has economic value which should be recognized.  In another case, it may be more appropriate to compensate most of the loss with a non‑pecuniary award for a loss of amenity, if for example, the plaintiff proved that he derives personal gratification from doing housework.

In this case there has been an economic loss for which no compensation has been provided.

That is, in our submission, the manner by which this Court can, consistent with previous principle, approach this loss as evidenced in this case.  Whether it be strictly under Sullivan v Gordon or whether it be analogous to Griffiths v Kerkemeyer is, in our submission, obviously not a great matter of importance as long as the award stands.

GUMMOW J: You referred us to section 59(3) of the Queensland Civil Liability Act which you said accepted Sullivan v Gordon, but put a wrinkle on it.  There does not seem to be any connection at all in the New South Wales Act with Sullivan v Gordon.  What about the other States?

MR JOSEPH: Can I just say this, your Honour. Your Honour asked about section 15. Of course, section 15 is purely Griffiths v Kerkemeyer.  How the Acts are structured is they say you have the common law and, unless it is excluded, you still have it.

GUMMOW J:   Yes, but one of the things possibly in your favour would be if a significant number of States have now legislated on the footing that they accept Sullivan v Gordon.  I do not know what the answer is but it is something perhaps one has to think about, whether it goes beyond Queensland, this trend, if there is one.  You do not have to answer it now but ‑ ‑ ‑

MR JOSEPH:   No, section 28ID of the Wrongs Act (Vic) governs the limitation of damages for “gratuitous care for others”, and it allows for claims by dependants, which is defined in section 28B.  Then you do have, your Honour, separate schemes, Transport Accidents in 1986 in section 93, and of course in South Australia my friend has taken you to section 24D.  As my friend says, in Western Australia, again is similar to New South Wales in section 12 and section 7 which seems to restrict Griffiths v Kerkemeyer but does not touch specifically Sullivan v Gordon, and section ‑ ‑ ‑

GUMMOW J:   What about Tasmania and the Northern Territory?

MR JOSEPH:   The only other reference I have, your Honour, is section 33 of ACT.

GUMMOW J:   What does that do?

MR JOSEPH:   That is a statutory form of Sullivan v Gordon.  That is a very old enactment, your Honour.  That is not just recent.

McHUGH J:   It reversed Best v Fox.

MR JOSEPH:   Yes.

GLEESON CJ:   Would the result in Carter v Anderson, the Canadian case you took us to, have been different if the plaintiff had been a single woman, a single, childless woman?  Why would not managing her home and keeping it clean been important and necessary?

MR JOSEPH:   Your Honour, we would submit there would not be any reason not to deny to a single person, but what they were concerned about obviously, like all these cases, is arguments such as those presented by the appellant, in this situation where other people are getting benefits in the family situation there should be no award.  So it is set up to deny that submission rather than to cover another factual situation that they were not concerned with.

I just want to briefly – the appellants rely very much on Burnicle v Cutelli.  Whilst I appreciate it has obviously been overruled by Sullivan v Gordon, it is of interest to know also that in Western Australia, subsequent to the case my friend relied on in Maiward v Doyle, the Western Australia Court of Appeal also followed Sullivan v Gordon.  So Sullivan v Gordon at the intermediate court level in Australia is accepted in Queensland, Western Australia and New South Wales.

In South Australia of course in Weinert v Schmidt, which is the case that prompts this appeal, it is our submission that that really has little precedential value in it because there was an associated loss of consortium action, as there was in Maiward v Doyle.  Thus, it was not as if the incapacity was being totally non‑compensated; it has just been compensated in the husband’s action.

In Burnicle v Cutelli, however, there was no associated action, it appears, in the form of a loss of consortium action, even though it appears that it was pre the abolition of that action.  There are just a number of things we want to say about Burnicle v Cutelli, apart from its emphasis, which we have already canvassed, on the fact that there were others who have suffered loss.  In Burnicle v Cutelli his Honour Justice Reynolds was very much influenced, in our submission, by the fact, at 27F:

The difficulty arises in the matter of quantification in cases where the diminution of capacity has not been productive of loss of income to the plaintiff in money or moneys worth – where it has not been productive of financial loss.

Now, what we submit that his Honour is clearly accepting at that point is the judgment of Justice Gibbs in Griffiths v Kerkemeyer, that in order for that head of damage to be maintainable, then it must be productive of economic loss and, of course, Justice Gibbs says as much at page 165.  What subsequently happened historically, as your Honours know, is that that opinion of Justice Gibbs was seen as a dissenting opinion and was not followed in ‑ ‑ ‑

McHUGH J:   Well, it must have had a subconscious influence on his Honour because the very next page, on page 28, he said that he did not find any assistance in Griffiths v Kerkemeyer.

MR JOSEPH:   Well, not specifically because by that stage he was dealing with the loss being in the hands of someone else.  But what his Honour, at 27, was concerned about was the problem of quantification.

GLEESON CJ:   But if you look at the second sentence in paragraph F on page 27 he has accepted and put to one side:

that in respect of those services which she formerly performed for herself but which she is unable presently to perform she is entitled in general to damages quantified by reference to the market price of replacing those services.

MR JOSEPH:   That is correct, your Honour.  But it is our submission that although his Honour was accepting that as being a pure Griffiths v Kerkemeyer claim, in terms of the other parts of the loss that were not - the other parts of the loss of which he claimed were part of general damages - perhaps a better example, if I could, your Honour, at page 28E:

I am of the opinion that an assessment must be made as a component of an award of general damages, just as must be done in respect of any other deprivation which does not produce financial loss.

So that is, in our submission, the dissenting judgment in Griffiths v Kerkemeyer of Justice Gibbs which is influencing ‑ ‑ ‑

GLEESON CJ:   The second sentence in paragraph F and the first sentence in paragraph G draw a distinction that may be far from clear‑cut in many cases.  It seems to assume that you can distinguish between work that you do for your own benefit and work that you do for somebody else’s benefit and it says there is no problem about the former and there is a problem about the latter.

MR JOSEPH:   Well, we say, your Honour ‑ ‑ ‑

GLEESON CJ:   Into which category does mowing the lawn fall?

MR JOSEPH:   Well, your Honour, our submission is you do not look at it in the category who gets the benefit of it.  I mean, obviously you go to work, the whole family gets the benefit of it, but when you lose your earning capacity you get the lot even though others receive the benefit.  Same with mowing the lawn.  The fact that you mow the lawn and others get the benefit of it does not distract from the fact that you have lost the capacity to mow the lawn.  That is where Justice Reynolds, in our submission, mischaracterises the issue because he concentrates on the fact that there are two losses; one to those who get the benefits and to the plaintiff herself, whereas that distracts one from the fact that the loss, the only loss, relevant loss that you are concerned with is the loss to the person who is injured even if others get the benefit.

CALLINAN J:   Mr Joseph, I had a recollection that Sir Garfield Barwick in a number of cases talked about capacity, for example, earning capacity as being like a capital asset.

MR JOSEPH:   Yes, Robinson.

CALLINAN J:   Robinson, is it not, the name of the case?

MR JOSEPH:   Yes.

CALLINAN J:   Who was the other party?

McHUGH J:   Arthur Robinson 122 CLR.

MR JOSEPH:   Yes.  Your Honour, that, of course, is the conceptual approach that we are saying was adopted holus‑bolus by Griffiths v Kerkemeyer and which this Court adopted in Medlin, that in other words, the fact that someone does not suffer actual financial loss you have still suffered the loss because you have lost an incapacity to exercise that matter; that is, in our submission, the conceptual approach which Justice Glass also refers to in Burnicle v Cutelli is very supportive of our submission that you do not look at this as whether or not financial loss is suffered as obviously Griffith v Kerkemeyer said in a different context.  You look at the capacity and whether it has a value, and how money can value it.

The other matter we wish to say about Justice Reynolds in Burnicle v Cutelli is that it is clear that one of the matters that concerns his Honour, at the top of page 29, is the fact that the capacity was exercised voluntarily for the benefit of others.  Now, again, we submit, that is looking at the coin on the wrong side, and indeed, misdescribes what someone does in a family situation.

In a family situation, in our submission, or in a household, as the Canadian case suggests, it is really wrong to suggest you keep your house clean because you are a volunteer, in the way you are a volunteer whether you go dancing on Friday night.  They are just misdescriptions, in our submission, of what is in reality a domestic task that has necessity attached to it because of the nature of the task and the relationship in which others might be getting the benefit of it, including yourself.

Of course we have adopted the judgment of Justice Glass.  The judgment of Justice Mahoney, in our submission, suffers from weight for a number of reasons, with respect.  Firstly, his Honour at page 36F chooses for whatever purpose not to describe what is the basic theory upon which he is determining the matter – it is of course Justice Glass who disclosed his theory – but he goes on and refers to:

The court is to take into account, in assessing the plaintiff’s damages, that she can no longer provide such services –

Now, again, use of those words “services” clearly misdescribes, in our submission, the fact that others are getting the benefit is not the basis of the claim, it is not the service so much as the lost capacity, which then his Honour says:

for the satisfactions which she would have derived from the exercise of it.

In our submission, totally undervaluing and misdescribing the nature of the domestic task.  He relies on page 37 with Kovac v Kovac.  That, of course, was a case where the Court of Appeal had concerns about the intermingling of domestic relationships and the like which this Court in Van Gervan refused to follow and we submit that his Honour’s opinion in Burnicle v Cutelli is very much influenced by his opinion he expressed in Kovac v Kovac that this is all a matter of obligations within the family and the courts should not be divvying them up if any one obligation is unable to be complied with any longer, for his Honour says for “public policy” reasons unidentified. 

The final matter which we did submit – and I will not repeat it – is that this case does fall within the pure Griffiths v Kerkemeyer claim.  The central pin of that is indeed the fact that the wife did have a pre-existing need, that is, the osteoarthritis, and the husband was fulfilling that need and, in our submission, interference by a tortfeasor in the capacity of the husband to interfere with his need to support the wife is a relevant need very much within the calculus of Griffiths v Kerkemeyer.             Finally, in respect of the United States ‑ ‑ ‑

GUMMOW J:   A lot of these things go into the jury room in the United States, so there is less sophistication ‑ ‑ ‑

MR JOSEPH:   Not quite, your Honour.  The loss of consortium action is very much alive in America.

GUMMOW J:   Yes.

MR JOSEPH:   And they have extended it.  So in fact there is absolutely no issue that the housekeeping incapacity is compensated for  in America in at least the loss of consortium action but also in an action brought by, more often than not, the injured housewife.

GLEESON CJ:   I would have thought with an ageing population this could be an issue of enormous practical importance.  A lot of people assume the role of carers for 20 or so of the final years of their lives.

MR JOSEPH:   And save the State a lot of money for doing so.  The question is, when that gets interfered with, to simply say this is just a form of amenity, in our submission, just totally belies – and when we look at the fact that there are now carers pensions, the State obviously recognises it as a very valuable source as well and something that has real money value.  I do not know what the Court wishes to do.

GLEESON CJ:   We would normally adjourn at quarter to 1.

MR JOSEPH:   I will be a little longer – not much longer.  It is a matter for the Court.  I think probably 10 minutes would see it through.

GLEESON CJ:   Mr Jackson has to reply.

MR JOSEPH:   Yes.  I am in the Court’s hands.

GLEESON CJ:   You want to adjourn now?

MR JOSEPH:   No, I am in the Court’s hands.

GLEESON CJ:   We will adjourn at quarter to 1.

MR JOSEPH:   As your Honour pleases.  Is that a convenient time?  I am going to a new topic.

GLEESON CJ:   We will adjourn until 2.15 pm.

AT 12.41 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

GLEESON CJ:   Yes, Mr Joseph.

MR JOSEPH:   Thank you, your Honour.  Can I just make a couple of dot points about the matter the Chief Justice raised on a number of occasions, namely, what is the difference between the claim by the individual who lives alone and the claim that is being made in this case, in a sense, what is the difference between the claim if it was purely pursuant to Griffiths v Kerkemeyer and this claim?  The points we would make are these.  Firstly, the difference in this case is the loss of capacity, obviously enough, is one of caring for others and not the plaintiff himself, and that is a difference which we accept.

Secondly, the loss is suffered by the plaintiff because he cannot meet the need of his care for others.  That is, his need for care of others raises this concept of obligation and necessity between the plaintiff and the person to whom is receiving the benefit and in that sense there is a difference.  Thirdly, there must be a reasonable necessity on the part of the plaintiff to provide those services.  That is, not all services will necessarily be encompassed.  And fourthly – and this is perhaps something that the Court of Appeal in Lowe v Guise picked up – that the care that is provided is something over and above that which is generally provided in that relationship.  That is a matter that in Lowe v Guise [2002] 3 All ER 454, when they upheld the claim of the young boy who provided care of his brother, they made this point, at paragraph [41], Lord Justice Rix:

Of course, the facts of the appellant’s claim have yet to be investigated.  I would for the present confine myself to the assumed facts of this case:  where the care is to a relative (to which I would add, a spouse or partner) living as part of the same household and goes beyond the ordinary interaction of members of a household.

Now, that appears also to be accepted by Lord Justice Potter in paragraph [52] when he talks about the services being “some more humdrum family activity”.  That is where, in our submission, the osteoarthritis issue does come into play.  When the Court goes to the evidence and the findings, which are to some extent summarised in our submissions, the plaintiff estimated at page 181 of the appeal book at line 20 that he:

spent, on average, about 3 to 4 hours a day undertaking work including mowing the lawn; edging, maintaining the garden; pruning; trimming; hosing the garden . . . outside maintenance work; cleaning . . . –

inside work such as:

turning the mattresses; assisting my wife shop; running errands; paying the bills and mopping the floor.

GUMMOW J:   Now, this clearly was not going to continue.  The plaintiff was moribund.  Now, what is the significance of that factor in this award?

MR JOSEPH:   We say, your Honour, Skelton v Collins puts to rest that issue.  What Skelton v Collins held in effect was the relevant period of loss is not the post-accident expectation of life but the pre-accident expectation of life.  So it would be quite wrong for obvious reasons to reward a defendant who has led someone to his death by cutting off the loss because they have been able to achieve whatever be the result.  So we say Skelton v Collins makes it quite clear, in our submission, that the only appropriate period for which these damages are to be assessed are the pre-accident ‑ ‑ ‑

GUMMOW J:   You are saying the reasoning in Skelton v Collins carries over to the Sullivan v Gordon situation, are you?

MR JOSEPH:   Yes, your Honour, in that what Skelton v Collins clearly relates to is a loss of capacity, true to earn, but having regard to the pre‑accident expectation and, as we say, for obvious reasons and there is no good reason why a defendant who has shortened that life expectancy through its own negligent act should have that loss assessed on a basis other than what would have occurred but for the injury.

The final dot point which we would wish to make is - and it has been why market value, why not some other form of valuation?  Of course, it is significant in this case that there was only ever put before the trial judge one form of valuation, that is, the valuation on a sort of an hourly rate basis.  There was no suggestion in this case that the loss should be valued as a form of general damages.  The case that was put by the appellants was there should be no award for these damages.  That was based on Weinert v Schmidt at paragraphs 5, 9 and 11.

Now, his Honour was thus left, in our submission, with the method which the then plaintiff put forward on evidence as being a manner by which this loss can be assessed and, in our submission, it is of significance that even though it is ultimately a matter of judgment, it is ultimately a matter of judgment of the trial judge.  Having regard to the facts as presented it was open to his Honour to adopt the method he did.  Now, obviously there has been discussion as to the possibility of alternative methods but, in our submission, that was not a matter which this trial judge was given, nor that on the evidence it was open for him to do what he did.

Now, in that regard, it is of some significance that section 32 of the Dust Diseases Tribunal Act only gives power to the Appeal Court, and in our submission, to this Court, to deal with matters of law, errors of law.  In our submission, the valuation, if it be open to him on the evidence, would not amount to an error of law, but rather, if anything, an error of fact.  I might say, in due course, that might have some implications in respect of the costs orders.

Before the adjournment I was taking the Court to Canada decisions and, in brief, I took the Court to Kroeker and it was clearly a divided court.  Suffice to say that Kroeker has since been adopted and followed by all Canadian courts as demonstrated in, I think, Dean’s Case, and thus it is the law of Canada and has been accepted as the law of Canada.  Perhaps what is interesting in Kroeker, in the minority judgment Justice Gummow took me to, is that the sort of submissions that the appellant is putting forward, namely the types of dire consequences that might occur if this type of head or award of damages is allowed to stand, were the very same types of submissions that were made and adopted by the minority in Kroeker and yet Canada still stands and follows this line of reasoning as the majority indicated in Kroeker.

McHUGH J:   If your submission is upheld, how would a judge direct a jury in a civil action?  Would the jury be directed that these calculations are just matters that they take into account in assessing one lump sum for general damages or would they be directed that they have to bring back a specific amount?

MR JOSEPH:   Your Honour, the jury would be directed, in our submission, that what has to be awarded is what is fair and reasonable having regard to the loss.  They can assess that loss on all of the evidence as either a form of economic loss if they consider that such a loss, that is replacement loss, is reasonable in all the circumstances as a fair valuation of the loss, or, if it is not a fair valuation of the loss, then they can bring in something, another sum, which they think fairly reflects the loss.  But, at the end of the day, it has to be a sum that fairly represents what is, in fact, the loss to the plaintiff.

After Griffiths v Kerkemeyer it really does not matter whether you call it special or general damages.  At the end of the day, as Justice Stephen says at page 179, that distinction is now practically unreal and that what that really directs the Court’s attention to is the likelihood of the loss occurring and how specifically one is able to identify the loss in terms of its predictability, and some losses are less predictable than others and there you might, therefore, think that that should be a more general damages loss than a specific loss but if the loss is quite specific, and able to be clearly identifiable in monetary terms, then that should be the loss they should give to the plaintiff.  But in New South Wales we do not have that problem about jury verdicts.

The other matters on that matter perhaps tangential to that, your Honour, is this question about why in some circumstances should it be market value.  We make these brief submissions.  The nature of the task gives rise to some indication as to the type of loss it is.  Concepts of fairness also do.  Concepts of not under‑compensating the plaintiff for the loss, these are matters that Justice Mason referred to in Sullivan v Gordon.  This Court in Van Gervan said at page 333 point 9 that market value was appropriate because it:

is ordinarily the reasonable and objective value of the need of the services, the market cost, as a general rule, is the amount which the defendant must pay as damages.

So we say to the jury, “If in fact you consider that the market cost is reasonable and objective of the loss being incurred by the plaintiff in this regard, then you can award him as a replacement loss.  If you think not, then you can award him in a more general fashion”.

I have referred to Canada.  Just as to the United States, there are decisions obviously about this and about the secondary statement, and I think I have referred to that in my submission.  Dobbs in volume 2 of his book, The Law of Remedies, describes it in this fashion at page 650:

One important category of cases involves a homemaker who is not a wage earner but whose earning capacity is devoted to providing household services, either for other family members or for himself alone.

The injured homemaker may claim the cost of replacement services as special damages, using the testimony of experts such as economists or employment experts to show the replacement cost for each type of service provided –

as we did here –

Typically, testimony of this kind would break down the services into many components, some of which might be replaced cheaply, as in the case of baby‑sitting, while others such as governess or chauffeur services might come at a very high price.  Sometimes the plaintiff will prefer to claim the cost of replacement services.

If the homemaker prefers, he is entitled to claim diminished or lost earning capacity instead.  This is based on the value of the work he could have performed in the home but for the injury -

The author identifies a number of cases upholding each of those submissions or views and we simply say that ‑ ‑ ‑

GUMMOW J:   Is that on the list of authorities, Dobbs?

MR JOSEPH:   Yes, it is, your Honour.

GUMMOW J:   It is, is it?

MR JOSEPH:   It is, your Honour.  Your Honour, it was No 57. 

GLEESON CJ:   The child minder.

MR JOSEPH:   It was No 57.  It might not have been one which we said we were going to read from.

GUMMOW J:   Well, we do not have it.

MR JOSEPH:   Sorry, your Honour?

GUMMOW J:   The practical question is we do not have it.

MR JOSEPH:   Yes, I am sorry about that, your Honour.

GUMMOW J:   I think.

MR JOSEPH:   Yes.  So in summary we say that the respondent gets support for this type of claim from four Australian States, United Kingdom, all England and Wales, Canada and United States and we submit that that is of some persuasive influence.  The matters my friend raised specifically I will briefly refer to, namely, we are seeking to bypass the prevention which the law now engages in, the prevention of family members recovering economic loss suffered by injuries to other family members.  We simply say, no, that is not the case.  All my friend is there doing is redefining, recharacterising the losses being that of the family members.  We do not seek to recover the loss of the family members.  We seek to recover the loss to the plaintiff. 

He then raises the question of parties, how are they objectively determined.  Briefly, this we have already said that it could be - in this particular case there could not be any doubt that the relationship between husband and wife, or parent and child as the cases so far have adopted, are clearly cases which can be distinguished from the type of extensions that my friend engaged in in his submissions, but having said that, this must be considered incrementally.  Some suggestion is made by Chief Justice Macrossan in Sturch v Willmott that it might go to extended members of the family.  Well, of course, this is not one of those cases. 

I suggested in argument it might be referred to as households.  But at the end of the day this Court is well familiar with the doctrine of controlling ambits of claims and it has done so in many various types of cases, be it economic loss cases, be it nervous shock action cases.  At the end of the day this case must be one, there can be no dispute, is the sort of case that gives rise to the sort of entitlements we are claiming.  At the end of the day the Court might have to consider how far is reasonable foreseeability, given that the defendant has to take the plaintiff the way it finds him or her. 

However, we submit that simply because there has to be some definition of this relationship, then we submit that because, if for no other reason, it has to give rise to a necessity on the part of the plaintiff to provide the help or care, it should not deny the claim because there are some grey areas.

The other matters of reference was double compensation.  This Court has dealt with this issue, and as in my submissions I refer to, in two cases and quite clearly took a very sensible approach, in our submission.  Both in Skelton v Collins – and I refer to this at page 20 of my submissions – and Fitch v Hyde‑Cates the Court recognised there was this extreme possibility of double compensation in a very limited circumstance.  The limited circumstance clearly does not arise here because there can be no suggestion, given that the plaintiff has died and given that he had judgment before his death, of any double compensation.  There cannot be any suggestion of double compensation in this case.  Therefore, it is my submission that the Court would await another day before they deal with that aspect.  But this Court has dealt with it in Fitch v Hyde‑Cates and Skelton v Collins when of course in Skelton v Collins the concern was that if you provide damages for the lost years, how do we know that the dependants might miss out in their

fatal accidents claim if the estate is the one to proceed with the damages for the lost years?

It is only a problem if the dependants are different from the beneficiaries, because if the dependants are the same as the beneficiaries the court clearly has the capacity to prevent over-compensation by having regard to payments not only received in past actions but likely to be received in future actions, if the action had not already been commenced.

So in practicalities it is – and the Court recognised it in Skelton v Collins and Fitch v Hyde‑Cates 150 CLR – a very rare event, and given that it is so rare the Court was not concerned enough in Skelton v Collins to prevent the recovery simply for that reason and we would submit that this Court would follow that same reasoning.

The only other matter relates to costs.  I have already made since the luncheon adjournment some suggestion about the problem that this case has, given the way the court awarded the damages without reference to different types of capacities or incapacities and different type of manner by which one could and could not award the damages for the loss.  We did submit that this created problems for this case for leave to be given but that the Court gave leave because of the existence of conflict between intermediate courts. 

If the Court does come to the view that there has been some error to justify the setting aside of the head of damage and there is to be a reassessment, we would submit that the special cost orders that we seek in our written submissions are indeed further justified, other than being simply a test case.  May it please the Court.

GLEESON CJ:   Thank you, Mr Joseph.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I deal first with the question of what aspects are the subject of the Sullivan v Gordon claim and, your Honours, they do not, if I may say so with respect, include things like mowing the lawn.

GLEESON CJ:   That is certainly the way the Court of Appeal dealt with it, because if you look at page 214 at lines 15 to 20, they define the issue as relating to:

the respondent’s loss of capacity to care for his disabled wife.

MR JACKSON:   Your Honour, the reason why they did that is because they had before them the document that was before the trial judge and which I am about to give your Honours if I may, and that is the relevant extract from a document to which I adverted in my submissions earlier, that is, the written submissions on behalf of the plaintiff to the primary judge.  May I give your Honours copies of that document?

GLEESON CJ:   Yes.

MR JACKSON:   Now, I will explain this document in just a moment if I may, but the matters, the mowing the lawn and so on, were included in the Griffiths v Kerkemeyer award.  Now, that appears from – first of all, if your Honours go to this document, it has the cover page “SUBMISSIONS ON BEHALF OF PLAINTIFF”, and the next page that your Honours have which omits another introductory page has a heading “SYNOPSIS OF DAMAGES”. 

Now, your Honours will then see at the bottom of the page immediately following the item 1, “General Damages”, and you will see that $180,000 is what is put forward – that is at the top of the next page.  You will then see a list of other items, 2, 3, 4, 5, 6 and 7, and then 8 “Griffiths -v- Kerkemeyer”.  Now, Griffiths v Kerkemeyer, the submission I have made under that head is an adoption of the report of Ms Trankalis as “reasonable” by Dr Greville.  Her report is in the appeal book, and I will come to it in just a moment.

Your Honours will see then that there are referred to in the submissions as “Stage 1”, and then if I can go to the bottom of the next page, or two-thirds of the way down, “Stage 2” and the top of the following page “Stage 3”, followed by a heading “Sullivan -v- Gordon”.  May I go back to the page preceding the one which deals at the top of the page with “Stage 1” and commences “the evidence of the plaintiff”.  Now, your Honours will see four lines into that:

The plaintiff gave evidence of paid gardening services in excess of that allowed for by Trankalis T8.8 and his provision of services not allowed for namely, looking after the car T9.18 and painting the house T9.40.  Thus the allowances by Trankalis are . . . perhaps an underestimation.

Then your Honours will see an attempt to estimate or make submissions about all the Griffiths v Kerkemeyer damages.

Your Honours, if I could pause at that point, you will see in the appeal book that you have her report and that commences at page 159 and at the bottom of page 160 you have “ACTIVITIES OF DAILY LIVING”.  Then you come to page 161, you see about line 25, “Gardening”, line 30, “Household Maintenance” and so it goes through there.  Then at page 162, about line 25, a passage to which I think you may have been taken earlier:

Mrs Thompson reported that she had osteoarthritis in the spine and that Mr Thompson had previously helped with household tasks, such as vacuuming, cleaning the windows and so forth, in addition to undertaking gardening and household maintenance tasks.

Your Honours, if I could go back then to the submission that was put at first instance, you will see on the page that one comes to item 10, “Sullivan –v- Gordon”, and then you will see exactly what the Sullivan v Gordon claim is for.  It is not dealing at all with the excitements of knowing the law and things of that kind ‑ ‑ ‑

GLEESON CJ:   It is not that his wife used to mow the lawn.

MR JACKSON:   No, your Honour.  Your Honours, it is very clear, in our submission, that the nature of the claim under Sullivan v Gordon was solely in respect of doing things he had done because his wife could not do them and the evidence on the point is really of the shortest kind. May I go to page 180 of the appeal book, paragraph 120 – your Honours will see what he says there – and then paragraph 122. This was an affidavit of his that was before the court. His oral evidence on the point is at page 24. It commences about line 17 and it goes through to about line 26. The evidence of his wife was at page 34, commencing at about line 44, and going through to page 35, about line 18.

Your Honours, we would submit that if ever one were looking at a case where an award in respect of the loss of capacity to do those acts and engage in that conduct was part of the lump sum for loss of amenities, in our submission, this was such a case.  What one saw from the evidence was that these were manifestations of the capabilities and capacities which he had had and things which he had lost, and they were capacities of course which would be of varying degree over the ensuing years.

GLEESON CJ:   If a case were conducted in front of a jury, the jury would not bring in a separate sum for the Griffiths v Kerkemeyer element, would they?

MR JACKSON:   No, your Honour, not unless it was agreed they should do so.

GLEESON CJ:   Unless somebody decided to take a special verdict.

MR JACKSON:   Yes, that would be a possibility.

GLEESON CJ:   I ask that question because I understand that in Victoria most of these cases are done before a jury, but the jury would not in Victoria, would they, bring in a separate amount for loss of future earning capacity and a separate amount for Griffiths v Kerkemeyer and so forth?

MR JACKSON:   Not in the ordinary course of events, no, your Honour.  In fact, I know on a couple of occasions in cases in this Court there have been difficulties perceived to have been brought about by doing that in fact, by getting separate awards from a jury on particular aspects of damages.  I do not quite recall it now but I recall getting somewhat taxed by it in one case.

McHUGH J:   Some judges put questions to the jury.

MR JACKSON:   Yes, that is one of the forms in which it is sometimes done.  That may happen in defamation cases quite usually in jurisdictions where more is left to the jury than in some others and it also sometimes occurs in damages cases.

GLEESON CJ:   Indeed, in the absence of special questions put to the jury, the jury would not distinguish between general damages and special damages, would they?

MR JACKSON:   No.

CALLINAN J:   Exemplary and aggravated damages in defamation cases are examples of what you say.

MR JACKSON:   Yes, your Honour.  I should add a qualification in my answer to your Honour the Chief Justice.  It may be that occasionally, because of requirements to reimburse government or other authorities for moneys that have been provided, that there has to be an indication by the body deciding the facts of how much is to be repaid.

McHUGH J:   When I was on the Court of Appeal I discussed some of the problems arising from separate questions being put and I think the jury bringing in a general verdict as well in a case called Otis Elevators Pty Ltd v Zitis.

MR JACKSON:   Yes, that is so, your Honour.  Your Honours, if I could go to the decision of the English Court of Appeal in Lowe v Guise [2002] 3 All ER 454 at 469.

GUMMOW J:   It is also [2002] QB 1369.

MR JACKSON:   Thank you, your Honour.  Could I just go to paragraphs [38] and [39].  Your Honours, at paragraph [38], or the part of it at the top of page 469, the last six or seven lines of it, it is said:

But he has suffered a loss nevertheless because, even though his care was provided gratuitously, it can and ought as a matter of policy to be measured in money’s worth.

And in the next paragraph, your Honours, there is a reference to:

(otherwise than as might be reflected in the award of general damages).

Now, your Honours, those paragraphs make it clear that what was being decided was being expressed as a matter of policy.  If one looked at the underlying facts which were very brief and very assumed facts for the purposes of the decision, in our submission, what is wrong with adopting the policy, if one puts it that way, that the costs should be reflected in general damages? 

Your Honours, if one stands back for a moment from the case and thinks about the application of a policy to those facts, it seems a much more realistic approach to the resolution of the amount of damages to say in a case of that kind that where one is speaking of a 31‑year‑old man, to award damages on the basis that he would have kept on looking after his brother for the time of their joint lives and that an award should be made on the basis of that seems a rather far‑fetched view, in our submission.

If you take those base facts, how likely is it that for another 20, 30 or 40 years that in fact would be the situation?  No doubt someone would have to look after the brother in the condition that he had.  He had to be lifted, things of that kind.  No doubt someone had to look after him.  But one is, after all, speaking about the damages that are to be awarded to the injured person, here the other brother.

GLEESON CJ:   Now, in this case, if this were an action in Victoria being dealt with in front of a jury and you accepted your proposition that it is to be reflected in general damages, what would a judge say to a jury about how they would reflect this in general damages?

MR JACKSON:   Well, what the judge would say, your Honours, would be along these lines - apart from the formal things of telling them that they had to take into account ‑ ‑ ‑

GLEESON CJ:   “Use your commonsense, do the best you can and stand back and have a look at it”, but apart from all that.

MR JACKSON:   No, no, your Honour, I am moving past that, if I may.  What I was going to say was the judge would say, “You have heard evidence”, indicating what the evidence was, “about the tasks that had been performed”.  The judge would say that it may well be that in – I am sorry, I will start again - tell them the tasks that had been performed.  The judge would also say in relation to those tasks, “The plaintiff is now not able to perform those if you are satisfied that is the effect of the evidence”.  That reflects part of the loss of capacity that has been suffered as a result of the accident.  The judge is perfectly entitled to say to them, “You have heard what may be the likely costs of replacing those.  You need to take into account the length of time for which it might have gone, you need to take into account the extent to which there would be the possibility of that continuing and a number of matters of that kind, but in the end the amount that you award for general damages has to take into account your evaluation”.

GLEESON CJ:   Now, suppose the plaintiff is a 65‑year‑old man with a life expectancy of 20 years and he, before the accident, was caring for his disabled wife who had an even longer life expectancy and was about the same age as he was.  Let it be supposed that you are right in the principle that you advocate.  Would evidence of the cost of providing caring services to the wife be relevant to the jury’s approach to making an allowance for the loss of his capacity to care for his wife for the remainder of his life?

MR JACKSON:   It would be difficult, your Honour, to say that it would not be relevant and thus admissible.  That being so, however, it would be one of the factors to be taken into account.  One would have to bear in mind the contingencies that would be involved.  It would not just be a matter of saying “It’s 20 per cent” or something of that kind.  The result of that may be, of course, that an award for general damages would be higher in that case than in some other cases, but at the same time, it would be a question of valuation of the capacity.

Your Honours, could I say also, our learned friend referred to passages in Lowe in which the members of the court said you are restricted to cases of family or the immediate family or matters of that kind.  Your Honours, it is difficult to see, with respect, why our learned friend’s argument would not have the consequence that on any occasion where a capacity which has been capable of exercise in the past has been exercised and can be valued at some kind of replacement cost, that too, should not be dealt with in a similar way.

McHUGH J:   My Irish grandmother used to provide an evening meal free of charge to the local parish priest, and did so for years and years.

MR JACKSON:   I hope it had satisfactory results, your Honours, in the later ‑ ‑ ‑

McHUGH J:   She was not rewarded in this life.

MR JACKSON:   In a later life.

GLEESON CJ:   She was promised that her grandson would have the grace of a happy death.

MR JACKSON:   That depends on how many grandsons, your Honour, I suppose.

McHUGH J:   It is hard to see why, on this theory of Sullivan v Gordon, she would not be entitled to compensation.

MR JACKSON:   It is very difficult, your Honour, with respect, and the replacement cricket coach to which your Honour Justice Callinan was referring earlier.  Your Honours, could I just say one thing also about the Nova Scotia case of Carter v Anderson 160 DLR (4^th) at page 473.  Your Honours, could I say that the view expressed in the first new paragraph on that page, particularly the emphasis in the middle of the page about “Housekeeping capacity is ordinarily not an amenity” and also the last sentence of that paragraph appear to embody a somewhat narrow view of what amenities or capacities, relevantly are.

One does not, your Honours, have to enjoy doing what one does for one to have a capacity to do it.  It may be more enjoyable if one does but it is not essential.  Many things one is required to do.  Your Honours, if you took, for example, compulsory voting, many people find compulsory voting, whilst something that occupies part of a Saturday, is the exercise of a privilege, albeit compulsory, given by a democratic state and if they cannot do it, cannot go and have to do it by postal vote, may regard that as something that, whilst they did not particularly want to vote, they found it a proper thing to do but to lose the capacity to do it is an element of loss of capacity. 

Your Honours, could we also say that a rather curious distinction seems to be drawn in the last sentence of that paragraph at page 473.  It is a little delphically expressed perhaps but it says:

In another case, it may be more appropriate to compensate most of the loss with a non-pecuniary award for a loss of amenity, if for example, the plaintiff proved that he derives personal gratification from doing housework.

Your Honours, one finds it very difficult to work out precisely what is sought to be conveyed by that phrase.

GLEESON CJ:   Is it the problem about the reference to the non-pecuniary award?

MR JACKSON:   Presumably, that means general damages.

GLEESON CJ:   I was going to draw your attention to the headnote in this case which, I suppose, accurately summarises the issue.  As I recollect it, when we were shown Lord Justice Bridge’s decision in Daly, the same issue was stated.  The issue was said to be whether it is compensable as a separate head of damage.  That is a kind of problem that I presume only arises where damages are assessed by a judge without a jury.

MR JACKSON:   Yes, and, your Honour, could I say that if one looks at page 467, the penultimate paragraph, the sole ground of appeal is framed using language of that kind, “a separate head of damages”.

McHUGH J:   The experience in New South Wales was that when the judges started to hear the case, the awards and damages increased and that was why the insurance company always wanted juries to hear the cases.

MR JACKSON:   Your Honours, this Court also, if I may say so, with respect, in a number of cases said that it was appropriate to indicate the course of reasoning and how the course of reasoning resulted in the various heads of damage.

McHUGH J:   Yes, but it all goes to build up the amounts.  Tick here, tick that box, tick that box, tick that box.

GLEESON CJ:   Leaving aside the practical reality that jurors might stand back and look at a large amount and take fright, why does the fact that it is or is not compensable as a separate head of damage as a matter of principle alter the amount the plaintiff gets if it is a matter to be taken into account?

MR JACKSON:   Your Honour, as a matter of absolute principle, no doubt what your Honour says is right.  The right amount should be the subject of an award.  The feature about it, your Honours, is that to calculate it by reference to the replacement cost, to put it shortly, of doing one of these things isolates out, and in a sense imperfectly, an aspect of capacity.  One can, no doubt, theoretically enough isolate out loss of earning capacity because, ordinarily speaking, a person’s life is divided into working and not working, but when one comes to other capacities, what you have is an award which reflects the effect on a body of the incident that is the tort.  What I mean by that is that a person suffers pain, a person has suffering, a person loses various capacities.  If you take out each of those capacities and say what is the cost of replacing that, it really is likely to give an aggregate figure – and this is one of the features – which unduly reflects a particular aspect of it.

GLEESON CJ:   Is the problem as a matter of principle that it is not just a question of separating it out but that treating it as “a separate head of damages” implies treating the cost of replacement of the services as an item of economic loss to the plaintiff?

MR JACKSON:   It must be that in the end, your Honour.  One could get to two curious situations.  There was a reference earlier to a plaintiff whose injuries caused, say, loss of libido.  Surely one does not get to the point of assessing as a separate item, in jurisdictions where it would be perfectly lawful to do so, the replacement costs of services in that regard for a spouse.  That would seem ridiculous if one got to that point.  If one added to that all the – that is why I say if one looks at the various items of personality that are the subject of an award for general damages, it does bring about a very odd conclusion the more and more one separates out.  No doubt assistance can be gained from seeing what replacement costs are, but at the same time it is a guide rather than a rule, we would submit.

Your Honours, could I just say three other things.  The first concerns the second Western Australian Full Court decision of Thomas v Kula.  All I wanted to say about it was that strangely enough there was no reference to the earlier decision of that court in Maiward.  That is the first thing.  The second thing, your Honours, concerns, if I could put it this way, a round-up of the statutory provisions there are in Australia concerning the Sullivan v Gordon damages, if I could put it in broad terms.

So far as New South Wales is concerned, section 15 of the Civil Liability Act imposes limits on the award of damages for gratuitous care. We would refer your Honours to the fact that section 15(1) relevantly defines “gratuitous attendant care services” as services “provided by another person to a claimant”, but a claimant, your Honours, appears to be the person suffering the injury. So section 15 appears not to deal with Sullivan v Gordon damages.

When one comes to Queensland, there is section 59(3) of the Civil Liability Act, which provides that Sullivan v Gordon damages may be available for services, and limits the availability of them to particular persons and also for particular amounts.  In Victoria the relevant provision is section 28ID of the Wrongs Act 1958, which provides limits on gratuitous care provided by a plaintiff to others, and again there are some limits upon it. Your Honours have, I think, section 58(1) and 58(3) of the Civil Liability Act 1936 (SA), which deals with the “recompense of gratuitous services” – I am sorry, your Honour. It says they “are not to be awarded”,

except to a certain degree in respect of to put it shortly, Griffiths v Kerkemeyer situations.

So far as Western Australia is concerned, the Civil Liability Act 2002 in section 12 refers only to care required by a plaintiff. In the Northern Territory section 23 of the Personal Injuries (Liabilities and Damages) Act 2003, is in almost identical terms to the New South Wales legislation. So far as Tasmania is concerned, section 5 of the Common Law (Miscellaneous Actions) Act 1986, specifically abolishes Griffiths v Kerkemeyer damages.  It says nothing about Sullivan v Gordon‑type damages.  Finally, your Honours, in the Australian Capital Territory the Civil Law (Wrongs) Act 2002 by section 100 creates a right for “Damages for loss of capacity to perform domestic services” that the injured person might reasonably have been expected to perform for his or her household. It creates its own liability of a Sullivan v Gordon nature.

Your Honours, if I can just say something on the question of costs.  As I said, your Honours, our submissions are in writing.  This is a case where the resolution of the issue in terms of money may affect the appropriate amount and the appropriate amount would then be something that would, in accordance with the law of the State so far as those courts are concerned, determine what the proper award should have been.

GLEESON CJ:   Mr Joseph put to us that there was no suggestion to the primary judge that any amount should be included in the general damages on account of this. 

MR JACKSON:   Well, your Honour, could I say, why blame us for that, if I can put it that way.  Your Honours have seen the way in which the argument was put for general damages on behalf of the present respondent.  Your Honours have also seen the nature of the claim that was made for Sullivan v Gordon damages.  Now, the hearing before the judge was one where it was clear that we were contending that Sullivan v Gordon damages were not available and we had put forward a proposal for general damages.

Now, in those circumstances, your Honours, if there were to be a claim which was to be made on behalf of the respondent that if their first claim was not correct and that there should be a further amount included in general damages, then it was appropriate to say it, and it has not been said, your Honours, until today that that is what should have taken place.  Those are our submissions.

GLEESON CJ:   We will reserve our decision in this matter and we will adjourn until 10.00 am tomorrow.

AT 3.12 PM THE MATTERS WERE ADJOURNED