Cummings, Lyn v Canberra Theatre Trust

CATCHWORDS

Negligence - Persona l ' i n ju r i e s

- Appeal. on quantum -

Compensability of

diminution of

earn ing capac i ty

where no

loss of earnings shown - Campensability

cost of household ass i s tance

where paid for

p l a i n t i f f ' s

husband.

Lyn Cummings v. Canberra Theatre Trus t

N o .

F.C.25

1 9 7 9

Coram : Brennan, McGregor and Fisher JJ.

Date :	1 8 June 1980.
Canberra.

. -

I N THE FEDERAL COURT OF AUSTRALIA)

AUSTRALIAN CAPITAL TERRITORY

N o .

P.C.

25 of 1 9 7 9

DISTRICT REGISTRY	1
1
GENERAL DIVISION	1

ON APPEAL FROM THE SUPREME COURT O F

THE AUSTRALIAN CAPITAL.

TERRITORY

BETWEEN

LYN C W I N G S

A p p e l l a n t

AND

CANBERWr

THEATRE

TRUST

R e s p o n d e n t

O R D E R

JUDGES MAKING ORDER

: B r e n n a n , McGregor and Fisher JJ.

DATE O F ORDER

:	1 8 June 1 9 8 0 .

WHERE

MADE

C a n b e r r a .

THE	COURT ORDERS THAT :

1. T h e appeal be allowed.

2 .

T h e

judgment

the

S u p r e m e

C o u r t of

the A u s t r a l i a n

C a p i t a l T e r r i t o r y

varied

d e l e t i n g t h e amount

" $ 3 1 , 7 0 9 . 9 7 "

and

i n s e r t i n g i n l i e u

thereof

t h e amount

"$44 ,329 .97" .

T h e respondent pay

t o t h e appel lan t her

costs of

t h e

appeal e

I N THE FEDERAL COURT OF	AUSTRALIA	1
1

AUSTRALIAN

CAPITAL

TERRITORY

No. F.C.25

of 1 9 7 9

REGISTRY	DISTRICT	1 1
GENERAL DIVISION	1

ON APPEAL FROM THE SUPREME COURT O F

THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN :

L W CVMMINGS

Appel lan t

AND

CANBE.RRA THEATRE TRUST

Respondent

C O W 1

Brennan, McGregor and

F isher

JJ.

18 June 1980

BRENNAN and FISHER JJ :

This appea l

i s from a

judgment of

Blackburn C . J .

i n

t h e

Supreme

Cour t

t h e

A u s t r a l i a n

Cap i t a l Te r r i t o ry award ing

t h e a p p e l l a n t , t h e p l a i n t i f f

i n

t h e

Supreme

Court ,

$31,709.97

damages

f o r

neg l igence caus ing pe r sona l

i n j u r i e s

and

costs.

L i a b i l i t y w a s

admi t ted

t h e d e f e n d a n t ,

the

presen t r e sponden t .

The award w a s made up of $30 ,000 fo r a l l non-economic

matters

and

$1,709.97

f o r agreed special damages.

The

appel lant contendec

i n h e r

n o t i c e

o f a p p e a l t h a t t h e

t r i a l Judge

w a s

i n e r r o r

i n

f a i l i n g t o i n c l u d e i n t h e

award an

amount

€ o r t h e

loss

her earn ing capac i ty and ,

amendment

t h e n o t i c e o f

appeal ,

she

fur ther contended

t h a t t h e trial Judge was

i n

error

i n f a i l i n g

t o i n c l u d e i n t h e

award

amount

i n

r e s p e c t o f t h e a p p e l l a n t ' s i n a b i l i t y

t o perform

some

h o u s e h o l d d u t i e s a n d , i n p a r t i c u l a r , i n f a i l i n g

t o

allow

t h e a p p e l l a n t

sum

t o c o v e r b o t h p a s t

and

f u t u r e cost

subs t i tu te household labour .

The

p r imary f ac t s

were

n o t i n dispute and being

f u l l y

se t

o u t i n t h e r e a s o n s o f t h e

t r i a l

Judge can be

s h o r t l y s t a t e d

here.

The

a p p e l l a n t on

2 1 January

1975

s u f f e r e d i n j u r y

when

c h a i r upon

which

she w a s p repar ing

t o

s i t ,

t o

view

thea t r ica l per formance in the Canberra

Theatre,

col lapsed

beneath her. In

consequence

she

su f fe red seve re

and

permanent in jury to her cerv ica l sp ine .

The

a p p e l l a n t i s married

w i t h t w o ch i ld ren and

be fo re

t h e

acc ident en joyed

ve ry ac t ive

l i f e .

P r i o r

t o h e r m a r r i a g e

she had qua l i f i ed a s

nurs ing

sister,

and

a f t e r h e r

marr iage for about

two

yea r s

she

w a s

engaged

i n par t - t ime

nursing.

Concurrently

w i t h her

part-t ime

occupation

she

a s s i s t e d h e r

husband on

t h e

s e c r e t a r i a l and

admin i s t r a t ive

side

o f

h i s

p ro fes s iona l

ca ree r

as an architect.

I n 1972

she

ceased

par t - t ime nurs ing

and w a s employed

fu l l - t ime

by her husband.

H e paid her f u l l wages for her work.

I n

add i t ion

she

r a n

h e r

home

and cared general ly for

h e r

3 .

ch i ld ren .	These w e r e her	c i rcumstances	a t the d a t e of	the
acc ident .

H i s Honour

fount2

her prescmt condi t ion to

be:

" . . . t h a t

t h e

pain and discomfort a l ready

descr ibed

are

still p r e s e n t i n

s i g n i f i c a n t

degree.

The p l a i n t i f f ' s

act ivi t ies are very

s i g n i f i c a n t l y a f f e c t e d ; s h e d o e s o n l y l i g h t

housework,

not

scrubbing,

heavy

cleaning,

moving

f u r n i t u r e

o r

l i f t i n g w e i g h t s .

She

very careful about any physical

movements;

she does no t p l ay t enn i s , o r

ski:

she has

on ly r ecen t ly

recommenced

sewing, which

former ly

she

f ree ly .

She

reads.

f o r

o n l y

s h o r t p e r i o d s ,

since

s h e f i n d s d i f f i c u l t y

i n

holding

book.

She

f i n d s t h a t g o i n g

t o

concerts

and

thea t r i ca l pe r fo rmances r e su l t s

i n a l o t of back pain

between h e r shoulders

and

i n h e r neck

because

the n e c e s s i t y t o

remain sea ted in one pos i t ion

and

hold the

head

i n o n e p o s i t i o n f o r

length of

t i m e .

a m s a t i s f i e d on

the evidence that though

he r p re sen t cond i t ion	may improve s l i g h t l y ,
it is improbable that	it w i l l ever improve

s u b s t a n t i a l l y .

t h i s b a s i s

he made t h e award of

$30,000 for non-economic

loss.

Afte r she had

recuperated

from her i n j u r i e s t o

some

ex ten t , t he appe l l an t wen t back to

work

for her husband,

bu t

her

c a p a c i t y f o r

t h i s work w a s diminished and

her

husband paid casual

and

p a r t - t i m e t y p i s t e s t o

some

work

which

t h e appe l l an t might have done

i f she had n o t been

in jured .

Never the less ,

h e r

husband

d id

not

reduce

h e r

earnings, and

h i s Honour found:

4 .

" A t

p r e sen t she

i s being paid in '

the

capac i ty

Secre ta ry in her husband ' s

p r a c t i c e , a t t h e

rate of

$200 -QO,

week.

i s n o t e s t a b l i s h e d

tha t

t h e

a c c i d e n t r e s u l t e d i n

any

loss of

income

t o h e r ,

notwithstanding t h a t she

cannot

c e r t a i n

work

such as typ ing for long

pe r iods ,

and walking about

i n p a r t i a l l y

completed buildings which

she formerly

did.

H i s Honour

w a s a l s o of

t h e o p i n i o n t h a t

it is

improbab le tha t t he appe l l an t

would

eve r

able t o perform

the

o rd ina ry du t i e s o f

nurs ing

sister.

fie

noted,

however,

that she had

"vo lun ta r i ly g iven

t h i s occupation before

the accident occurred, i n order- that she

could

a c t as

f u l l - t i m e s e c r e t a r y i n

her

husband ' s

p rofess iona l

p rac t ice ,

t h e

evidence,

t h i n k t h a t a s

matters stood

ju s t be fo re the acc iden t , a l t hough one can

imagine events which would cause h e r t o

wish t o earn as a nurs ing sister, such

events were improbable. I'

I n her

evidence

t h e a p p e l l a n t s t a t e d

that

she had

contemplated going

back

t o nu r s ing , bu t

only

i f h e r

"l ivelihood depended

upon it". The trial Judge was of

opinion

tha t he should not

calculate damages

f o r loss

earn ing

capac i ty

t h e b a s i s

h e r

loss

of capac i ty to ea rn

nurs ing sister since t h e evidence w a s that her wages

a t t h e

time of t he hearing were almost exactly

the same as t h e

remuneration of

a nursing sister, leaving out of cons idera t ion

penalty and overtime

rates.

. -

. .

I n c o n s i d e r i n g

the

a p p e l l a n t ' s

claim

for

damages

fo r

impairment

e a r n i n g c a p a c i t y t h e

t r i a l Judge had

r ega rd

t o

he r -annua l ea rn ings wh ich - ac tua l ly inc reased in the yea r s

a f te r

the acc iden t :

Year ending 30 June 1973 $3,137 Year ending 30 June 1974 $3,580

.. .

Year ending 30 June

1975 $4,570-& year of the

accident

Year ending 30 June 1976 $7,270 Year ending 30 June 1977 $9,005 Year ending 30 June 1978 $9,015

H e

concluded

that

had not been es tab l i shed

t h a t

t h e a c c i d e n t

res.ulted i n any loss of

income t o her,

no twi ths t and ing tha t

she

cou ld no t pe r fo rm ce r t a in

work.

i n h i s

Honour's opinion

n e i t h e r

the

e x i s t e n c e n o r

t h e

e x t e n t

r e d u c t i o n i n e a r n i n g

capaci ty had been

established,

he ld tha t he cou ld

award no

damages

i n t h i s r e s p e c t .

T h i s was

t h e first conclus-ion

which

was:.challenged by

t h e

a p p e l l a n t before

us.

. . , .

. -

There w a s no

chal lenge

t o the

t r i a l .

Judge ' s

f i nd ings

of:fact

. .

w i t h

r e s p e c t

t o

t h e a p p e l l a n t ' s p h y s i c a l c o n d i t i o n .

Com~!el f o r the

appel lan t

contended ,

however,

t h a t

t h e

t r ia l

Judge w a s i n error in concluding

t h a t because there

had been

no , reduct ion in earn ings

w a s bound

t o f ind

t h a t there

G a s

no r reduc t ion in ea rn ing capac i ty .

diminut ion in earn ings

i s

na tura l and f requent

coficomitant

d iminu t ion in

t h e capac i ty of

a n i n j u r e d

p l + , i n t i f f

t o e a r n

income.

But

where

t h e p l a i n t i f f h a s

, - . .

ob ta ined work

r e t u r n e d

t o work

after

i n j u r y a n d h a s

been pa id dur ing

g i v e n p e r i o d t h e

same

amount

as,

or more

than, he would have earned

i f

he had no t

been

i n j u r e d ,

d o e s n o t

t h a t h e h a s s u s t a i n e d

loss

e a r n i n g

capac i ty .

.What appears

f rom

those

c i rcumstances

i s t h a t

any d iminu t ion in ea rn ing capac i ty has no t been p roduc t ive

d i m i n u t i o n

i n

e a r n i n g s d u r i n g

t h a t p e r i o d , W h e t h e r

t h e

p l a i n t i f f h a s s u f f e r e d

or m i g h t s u f f e r

a t some

o t h e r

t i m e

d i m i n u t i o n i n e a r n i n g s

t h e r e s u l t

his

i n j u r i e s i s

ano the r ques t ion , and

i f

shows

t h a t h e h a s s u f f e r e d i n

t h e p a s t

o r m i g h t s u f f e r i n t h e f u t u r e

such

d iminut ion ,

h e p r o v e s h i s e n t i t l e m e n t

t o

award

damages

f o r

d i m i n u t i o n

i n

e a r n i n g

c a p a c i t y .

A s

t h e

m a j o r t t y

t h e High Court

(Dixon

C . J . ,

Ki t to and Taylor

JJ) i n

Graham v. Baker ( 1 9 6 1 ) 1 0 6 C.L.R.340

said at p.347:

' l . .

.an

i n j u r e d p l a i n t i f f r e c o v e r s

not

merely

b e c a u s e h i s e a r n i n g c a p a c i t y h a s b e e n

d iminished but because the d iminut ion

h i s e a r n i n g c a p a c i t y

i s o r may

produc t ive

f i n a n c i a l loss.

(under l in ing

added)

A t

t r i a l ,

t he case does no t appea r

t o

have been put

i n t h i s

way.

I t w a s c o n t e n d e d

t h a t

t h e

fact t h a t

t h e

appel lan t ' s husband engaged par t - t ime employees es tab l i shed

he r

d imin i shed

ea rn ing

capac i ty .

The

learned

trial

Judge

c o r r e c t l y

rejected

th i s approach and

i t s

co ro l l a ry , name ly ,

t h a t t h e e x t e n t o f h e r d i m i n u t i o n i n e a r n i n g c a p a c i t y c o u l d

be gauged by

t h e quantum

t h e wages

paid

t o t h e c a s u a l

employee.

A s

Mi tche l l

s a i d

i n Bivone v. Welfare (1971)

1 S.A.S.R.43.1

a t p.433:

"Certainly wages which an employer paid

f o r work

which

a n incapac i t a t ed employee

would otherwise have done

could n o t be

cons idered par t o f the employee ' s

damage

merely by reason

t h e fact that

t h e

employer

s t i l l paid the employee 's

wages . ' I

H i s Honour

w a s p ressed wi th

some observa t ions of

the Cour t

Appeal i n New South Wales

i n Allan v.

Loadsman,

(1975)

N.S.W.L.R.789,

s u g g e s t i n g t h a t f a i l u r e b y

p l a i n t i f f

t o quant i fy d iminut ion

i R earn ings

i s

f a t a l t o a

claim

f o r

anything more

than nominal

damages

for d iminut ion of earn ing

capac i ty .

Such

approach

to the a s ses smen t o f

i n j u r e d

p l a i n t i f f ' s

damages

would

deny

compensation even

if a grave

r i s k of

s u b s t a n t i a l f u t u r e

loss

income

appeared, and

that

approach is not suppor tab le

(see G a m s e r v.

Nominal Defendant

(1977) 136 C.L.R.145

a t p.157 per Aickin

J.).

do no t f ind

it necessary t o analyze the

judgments i n Allan v. LOadsman, supra.

If t ha t

t ended

to produce any misunderstanding

what

i n j u r e d p l a i n t i f f

must prove

i n e s t a b l i s h i n g h i s

claim

f o r loss of

or diminution

i n

earn ing capac i ty , the misunders tanding has been

rernoved:

see Baird v. Roberts

(1977)

N.S.W.L.R.389

a t p.397

e t seq;

8 .

Kealley

Jones

(1979)

1 N.S.W.L.R.723

a t PP.733-734;

Yammine v.

Kalwy

(1979) 2 N.S.W.L.R.151

a t ~ p . 1 5 5 ~ 1 5 7 .

Where

p l a i n t i f f ' s i n j u r i e s a d v e r s e l y

affect

h i s a b i l i t y

t o engage i n income-earning act ivi ty ,

it i s

n e c e s s a r y t o

assess

compensat ion for diminut ion in earning

capac i ty

upon

t h e e v i d e n t i a r y m a t e r i a l s a v a i l a b l e , e v a l u a t i n g

t h e r i s k s o f f u t u r e

losses

of earnings

and

b e a r i n g i n

mind

any

f a i l u r e on

the p a r t of

t h e p l a i n t i f f

t o prove any

r e l e v a n t

facts

which he might reasonably have been expected

t o prove

(Callaghan v. Wm. C. Lynch Pty.Limited (1962)

N.S.W.R.871;

Ivkovic

Austral

ian

Iron

& Steel L t d .

(1963)

S.R. (N.S .W.)

598

a t pp.603,604,607,608).

Depending

upon

t h e

e v i d e n t i a r y m a t e r i a l a v a i l a b l e ,

t h e

assessment

may

"of

necess i ty invo lve

what

i s

guesswork rather than est imat ion"

(per

Menzies J. in

Jones

Schiffman

(1971)

1 2 4 C.L.R.303

a t p.308).

I t w a s therefore incumbent upon t h e

t r i a l J u d g e ,

and

is now

incumbent

upon

us , t o cons ide r whe the r t he

appel lant ' s undoubted physical impairment might in

t h e

f u t u r e

r e su l t i n r educed ea rn ings . Th i s cons ide ra t ion

takes

i n t o

account the

fact t h a t i n many

ways

t h e a p p e l l a n t w a s i n an

excep t iona l s i t ua t ion , no t on ly because

her

husband

was

and

i s her employer but

a lso because he has paid her benevolent ly

f u l l wages

d e s p i t e

h e r

d i s a b i l i t i e s .

In Breska v.

Lysaghts

Works Pty.Ltd.

(1957)

.W.N.

(N .S .W. )

168

and

Smith

, -

. .

Aus t r a l i an

I ron

& Steel Ltd. (1960) 77 W.N.

(N.S.W.)889,

where the employer companies benevolently paid full

wages

to in ju red employees , t he

damages

were

not assessed on the

f o o t i n g

that

t h e

benevolence e l imina ted the r i sk of fu ture

economic

loss.

Here

the

a p p e l l a n t i s n o t only

a t r i s k o f

l o s i n g income

secretary;

she has

also l o s t t h e c a p a c i t y

t o e a r n income as a nurs ing sister - an employment

which

may

have been avai lable

t o h e r b u t f o r

her

i n j u r i e s , i f h e r

employment by

her husband had terminated for any reason.

Even

though,

for tuna te ly ,

there

i s no present expectat ion

t h a t h e r

employment w i l l cease ' be fo re the t i m e when

she would

i n

any event have given

working,

it is n o t d i f f i c u l t t o

b r i n g t o mind events i n which an earlier terminat ion of

her

p r e s e n t

employment

could occur.

The

amount of

t h e

award

fo r d iminu t ion in ea rn ing

capac i ty cannot

c a l c u l a t e d w i t h p r e c i s i o n b u t

t h e

award

would

n o t b e f a i r

t h e a p p e l l a n t

i f

it were

no t i nc reased

an amount i n t h e order of

$8 ,000

t o sa t . i s fy t h i s head of

damage.

The second matter of chal lenge w a s founded on

the

addi t iona l ground

of appeal added pursuant t o leave granted

t h i s c o u r t .

A t t h e t r i a l a

claim w a s made

t h e

a p p e l l a n t

for t h e c o s t of

employing a

domestic

servant .

10.

Evidence w a s g iven,

which

the t r i a l Judge accepted,

that

one aspect

h e r a c t i v i t i e s w h i c h w a s . v e r y s i g n i f i c a n t l y

a f f e c t e d was

the

performance of

h e r normal household duties.

She

could perform

a t

the da t e o f t he

t r i a l o n l y l i g h t

housework, and could not engage

scrubbing,

heavy cleaning,

moving

f u r n i t u r e o r

l i f t i n g w e i g h t s .

H e r medical

adviser

s ta ted tha t

i n h i s

view

it was

reasonable that she would

n e e d a s s i s t a n c e

i n h e r

housework.

Such

a s s i s t a n c e

w a s

a t

t h e t i m e of

t h e hear ing provided

for the appellant on t h e

bas i s o f fou r hour s

f o r t n i g h t , c o s t i n g

$15

p e r f o r t n i g h t

which sum

the t r i a l Judge found

t o have been paid

t h e

a p p e l l a n t o u t o f

t h e

housekeeping allowance given

her

husband.

these

c i rcumstances

concluded

that

because

t h e

burden of th i s expendi ture

fell

t h e

appel lan t ' s husband

and because there

w a s no

ev idence tha t

t h e

p rov i s ion

such ass i s tance caused

any

personal

loss

t o . her,

t h e

c o s t of

employing domest ic ass is tance could not

claimed

t h e appe l l an t .

I n h i s r easons fo r

re ject ing the

claim

t h e t r ia l

J u d g e s t a t e d t h a t h e

was

r e f e r r e d

counse l to

Pegrem

The Commissioner f o r Government Transport (1957) 74 W.N.

( N . S . W . 1 4 1 7 .

However,

before

u s

i t w a s common

ground

t h a t

he w a s n o t referred

t o recent

relevant

a u t h o r i t i e s , and

i n

p a r t i c u l a r t o

G r i f f i t h s

Kerkemeyer

(1977) 139

C . L . R . 1 6 1 .

. -

11.

B e f o r e t h i s C o u r t , c o u n s e l f o r t h e a p p e l l a n t r e l i e d

t h i s a u t h o r i t y

as w e l l as Donnelly v.

JOY-

[l9741 ~-13.454

and Beck v.

Far re l ly

(1975)

1 3 S.A.S.R.17,

t o s u p p o r t h i s

submiss ion tha t

w a s

n o t h i n g t o t h e p o i n t t h a t t h e

appel lan t ' s husband pa id the

wages

the

domestic

se rvan t s .

I t was n o t t h e

payments made

t h e husband which

c o n s t i t u t e d t h e r e l e v a n t

loss,

he submit ted, but

the

loss

t h e a p p e l l a n t o f h e r c a p a c i t y t o

the

housework,

f o r

t h a t was

t h e loss which produced

the need

for

domestic

a s s i s t ance .

The

submission

i s

in accordance wi th au thor i ty .

I t

a p p e a r s f i r s t t o h a v e

been enunciated

i n i t s

p resen t

form

Megaw J. i n Donnelly v.

Joyce,

supraf

a t pp.461-462

and

t h e e f f e c t o f t h a t p a s s a g e

i s

s t a t e d by

Stephen

i n

G r i f f i t h s v.

Kerkemeyer,

supra,

a t p.173:

'I [T] he

c r i t i c a l p o i n t

i s h is Lordship ' s

a f f i r m a t i o n t h a t

when

p l a i n t i f f ,

r e s u l t o f h i s a c c i d e n t - c a u s e d i n j u r i e s , becomes i n need of goods or services

t h a t n e e d

i s i t s e l f

loss

suf fered by

him, f o r which he	may recover damages
Lc

aga ins t

t he

de fendan t .

I t

i s

t h e n ,

h i s

L o r d s h i p s a i d , i r r e l e v a n t t o h i s

e n t i t l e m e n t t o t h o s e

damages

t h a t t h e

need has been sa t i s f ied

t h e g r a t u i t o u s

supply t o him of the needed

goods or

s e r v i c e s .

Gibbs J.

s a i d a t pp.168-169:

1 2 .

- However i n my opinion

this

Court

should

not . abandon the pr inc ip le tha t

a p l a i n t i f f

whose

i n j u r i e s h a v e c r e a t e d

need!

for

h o s p i t a l o r n u r s i n g

services

cannot recover

damages

i n r e s p e c t o f t h a t

need (except

cour se fo r l o s s o f amen i t i e s

pain and

s u f f e r i n g ) u n l e s s t h e s a t i s f a c t i o n

t h e

need

i s

may

be product ive of f inanc ia l

loss.

However i t should

longer

held

t h a t t h e f a c t t h a t t h e

services have been

.and w i l l be provided gratui tously

i s

conc lus ive o f t h i s ques t ion ,

The

matter

should,

as i t were,

be viewed

i n t w v s t ages .

F i r s t , i s it reasonably necessary

to provide

t h e s e r v i c e s , a n d

would

it be reasanably

n e c e s s a r y t o

s o a t a

c o s t ? If SO.,

t he

fu l f i lmen t o f t he need

i s

l i k e l y

t o be

product ive

f i n a n c i a l loss.

N e x t ,

i s t h e

c h a r a c t e r o f t h e b e n e f i t

which

the

p l a i n t i f f

r ece ives

the g ra tu i tous p rov i s ion . o f t he

s e r v i c e s s u c h t h a t

it ough t t o

brought

i n t o a c c o u n t i n r e l i e f o f t h e w r m g d o e r ? I f

n o t ,

t h e

damages are recoverable. '*

Counse l for the respondent d id not d i spute tha t the

services had t o be procured.

The p o i n t he made w a s t h a t t h e

housekeeping services

were

provi .ded not mere ly for the benef i t

o f

t he appe l l an t bu t

fo r

t he f ami ly

a whole,

I t w a s

submi t t ed tha t t he case

d id

n o t

f a l l w i t h i n t h e p r i n c i p l e s

e x p r e s s e d

i n

G r i f f i t h s

Kerkemeyer,

supra.

support

t h i s submiss ion he r e fe r r ed to the

judgment

o-f

Mahoney

J . A .

Trevor

Johnson v.

K e l e m i c ,

r epor ted

i n

(1979) F.L.C.78,487

p a r t i c u l a r l y a t pp.78,494

78,496,

and

t o Kovacs v.

Kovacs,

r ecen t

( 6 May

1 9 8 0 ) unreported

judgment

the Court of

Appeal

New

South Wales.

the

former

case, no

allowance

was

made

t o t h e p l a i n t i f f i n r e s p e c t o f

services

g r a t u i t o u s l y

p r o v i d e d t o h e r

her husband

who

a t tended

to her acc ident -

caused problems and

moved

he r f r equen t ly du r ing the n igh t .

13.

The

case

i s d i s t i n g u i s h a b l e

f r o m t he p re sen t

case,

f o r i n

the former

case

Mahoney

J .A.

was

s a t i s f i e d t h a t t h e

s e r v i c e s were

such tha t normal ly they

would

not have

been

obtained

for

reward.

A t p.78,494

said:

"Where

the Cour t

i s s a t i s f i e d that,

i f t h e

s e r v i c e s

w e r e

n o t s u p p l i e d g r a t u i t o u s l y , t h e

p l a i n t i f f would have arranged

to have them

supp l i ed fo r r eward ,

t he pos i t i on

i s

clear.

But

i f t h e C o u r t

i s s a t i s f i e d t h a t ,

i f

t h e

s e r v i c e s

were

no t supp l i ed g ra tu i tous ly the

p l a i n t i f f would n o t do so.. ., is t h e

p o s i t i o n

t h e same?

For example, it may be

t h a t t h e n a t u r e o f t h e s e r v i c e s

i s

s u c h t h a t

they are not such

as may normally be obtained

for reward, and are such tha t they are o r

pa r t ake o f t he no rma l inc iden t s o f f ami ly l i f e . "

I n Kovacs

v. Kovacs,

supra,

the

Court

Appeal

w a s concerned with domestic

assistance provided by a husband

f o r

an incapac i t a t ed wi fe

who

was

t h e p l a i n t i f f s e e k i n g

compensation.

The Court w a s n o t unanimaus,

b u t

t h e q u e s t i o n

a t

i s s u e

w a s

whether the services which the husband

p rov ided g ra tu i tous ly shou ld be r e f l ec t ed in the

damages

awarded.

I t was no t

sugges t ed

tha t

the

serv ices provided

were

not needed

t h e p l a i n t i f f .

Here

t h e q u e s t i o n

i s

w h e t h e r t h e p l a i n t i f f

' s accident has given

rise

t o a

need

o f t h e

same

kind

t h e needs

which

a t t rac t compensa t ion

u n d e r t h e p r i n c i p l e s e x p r e s s e d i n G r i f f i t h s v .

Kerkemeyer,

supra.

our

judgment,

there

i s no

r e l e v a n t

d i s t i n c t i o n .

1 4 .

Where,

according t o the p r a c t i c e of

a family of

which

t h e p l a i n t i f f

i s

member,

the p l a in t i f f pe r fo rms

p a r t i c u l a r domestic

chores and

i s d i sab led from

cont inuing

them by

the conduct

tortfeasor,

t h a t i n c a p a c i t y

is a

loss

s u f f e r e d b y t h e p l a i n t i f f , a n d ,

subject t o what

w a s

s a i d i n G r i f f i t h s

Kerkemeyer,

sup ra ,

t o t h e b e n e f i t

subvent ions rece ived

from t h i r d p a r t i e s ,

the

cost of

p rov id ing the

services which are needed because

t h e

incapac i ty should be borne by the tortfeasor. This i s n o t

a case where t h e r e w a s a re-arrangement of domestic chores

consequent upon

a n i n j u r y ,

and

the even t s

wh,ich occurred

a f te r

t h e a c c i d e n t

showed

t h a t it was

reasonably necessary

t o provide the r e q u i s i t e s e r v i c e s

a t a

cost.

There w a s no

sugges t ion made

t h a t t h e

payment

t h e cost by

t h e a p p e l l a n t ' s

husband

goes

i n relief

o f

t he

tortfeasor.

Indeed,

the

in fe rence i s open t o be

drawn

t h a t i f t h e husband had

n o t

pa id

for them,

t h e a p p e l l a n t

would

he r se l f have pa id

for them

o u t

h e r e a r n i n g s .

In ou r op in ion , t he

trial

Judge should have

made

award

t h i s a s p e c t

t h e a p p e l l a n t ' s

claim.

Counsel

for

t he r e sponden t ca l cu la t ed

f i g u r e of

$4,620

be ing the

p r e s e n t c a p i t a l v a l u e

$15

p e r f o r t n i g h t

€or

yea r s ,

us ing 6 % tables,

and the appropr ia teness

t h i s f i g u r e

w a s

no t d i sputed by counse l

f o r

t h e a p p e l l a n t ,

are o f

t he

view

t h a t t h e a p p e l l a n t ' s

damages

should be increased accordingly.

15.

I n t h e r e s u l t , t h i s C o u r t s h o u l d i n c r e a s e t h e

award by an amount which, having regard

t h e views

w e

have

expressed,

w i l l y i e l d f a i r compensation.

The

a d d i t i o n of

amounts

t o t a l l i n g $12,620

to t h e amount

already awarded

w i l l n o t d u p l i c a t e

any matter which the

l e a r n e d trial

Judge has a l ready

allowed

for

i n h i s

assessment , nor

w i l l it produce an asses,sment which

i s

unfa i r .

Accord

ingly

the

appea

should

B e

allowed

and

t h e

a p p e l l a n t ' s

damages

i n c r e a s e d t o $44,329-97.

The

respondent must pay the appel lan t ' s

costs

t h i s a p p e a l .

'I c e r t i f y t h a t t h i s

and the

1 4

preceding pages

are a t r u e copy of

-the Reasons

fo r Judgment herein

t h e i r H.onours M r .

J u s t i c e Brennan

and

M r .

J u s t i c e F i s h e r .

(oate	: /X June 1 9 8 0 .
l

I N THE FEDERAL COURT 0.F AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

No. F.C, 25 of 1979

DISTRICT

REGISTRY

GENERAL DIVISION

ON WPEAL FROM THE SUPREME COURT OF

'THE AUSTRALIAN	CAPITAL	TERRITORY
BETWEEN:
LYN CUMMINGS

Appellant

-and-

CANBERRA

THEAT~E TRUST

Respondent

McGREGOR J.

18 June l980

agree with the decision reached

by my

brothers .

A s I disagree with

some o f the reasons they

have expressed

i s necessary t o add something f o r myself.

F i r s t I do not agree there

i s any material from

which the inference

is open t o be drawn t h a t i f her husband

had not paid

f o r domestic services, the appellant

would

have

done so herself out

o f her own earnings.

The learned trial

Judge did not

draw the inference. In

opinion it was not

open t o him o r t o us.

Therefore

I would not

increase

the

amount o f the appel lant ' s verdict

on such

a basis o r ,

it follc

by any process of capitalising the

sums paid or expected t o

payable .

A s I discern from his reasons h is

Honour did f ind

proven l o s s o f earning capacity

in the sense

o f a reduction

o f

physical a t t r ibute .

I t w a s then shown by

the evidence

which was no,t questioned

and which

H i s Honour appeared t o accept that .she was not able

f u l l y t o do

( i )

the

secretar ia l

work she

previously

undertook;

(ii)	the work o f a nurse i f ever she might seek	t o
undertake -it;

(iii) all her housework.

These

were

a l l t o

some

extent a t l ea s t t he sub jec t

o f

a'measure'on

the

evidence.

The

amounts paid t o secre ta r ies

was re fer red t o i n evidence. The earnings o f a nurse were

accepted by his Honour as ffalmost exactlyf1 the same as she now earns. The worth o f the th i rd i s s imilar ly able t o be

es t imated in that the housekeeping

assis tance cost

$15.00

a	for tnight .

"On the evidence,

I think

that as mat ters s tood just

before

the

accident,

although

one can

imagine events which

would cause her

t o wish t o

earn

nurs ing s i s te r ,

such events were improbable.

she

e n t i t l e d t o damages

f o r l o s s o f an

earning

capacity which it was improbable

3 .

that she would ever have wished

t o exercise?

But

whatever'be

the

answer t o t h i s question, it appears that on the evidence

before me

I should not calculate

t h e p l a i n t i f f ' s

damages

f o r loss

o f

earning capacity on the

basis

o f her l o s s of her capacity

t o

earn as a nursing s is ter , s ince she has shown tha t she i s now employed f o r a remuneration which

i s almost exactly the

same as

tha t o f

nurs ing s i s te r ,

a t

any r a t e i f no regard be had t o

penalty and overtime rates.

h i s

Honour

refused the claim because not presently

operative and -it was	improbable t h a t it ever should
operate.

H i s Honour

also

rejected the claim

f o r the cost

o f employing

domestic

assistance.

If the claim was made

exp l i c i t l y in those	terms	it may	be	said that ,	w i t h respect,
he was correct.

noted tha t the burden o f t h i s expense has

f a l l e n on the

husband;	t h a t no personal l o s s was caused t o her and
therefore	-

l'.

. .

. the cost

employing domestic

servants cannot

be part o f the

p l a i n t i f f

damages.

The

arguments

and

au thor i t ies re fe r red

on appeal,

seems,were not put to the learned trial Judge. Appellant seeks t o .have a sum added t o the damages on the Ilneedsll

p r inc ip le re fer red

to in au tho r i t i e s

t o which

re fe r

he rea f t e r .

Griff i ths v.

Kerkemeyer( 1976-1977)139 C.L.R.

161 Gibbs J.

said a t page .l65 -

Itin Beck

Far re l ly ,

Bray C . J ,

pointed out the diff icul ty

o f

reconciling the principle

l a i d

down

i n G r a h a m v.

Baker with

Donnelly

Joyce.

I n my

opinion it i s not r igh t

t o

say that a p l a i n t i f f

who

su f fe r s i n ju r i e s

tha t

create.

a need f o r medical or hospi ta l

treatment,

nursing

assistance

or	pharmaceutical supplies

thereby necessarily suffers

l o s s t h a t

c a l l s f o r

compensation by way o f damages.

(I am of

course not intending

t o speak o f damages

f o r l o s s

o f amenities o r pain and

suffering) .

- I n my opinion,

i n cases o f t h i s kind also,

the

p l a i n t i f f

e n t i t l e d

t o

damages only t o the extent

tha t the

need thus created

i s

o r may be productive o f

f inzncial loss.

..'

. '

Later (p.

169) he went o f -

"It i s unnecessary t o consider

a l l the implications

o f

th i s

change i n approach.

I t should

not create

any

d i f f i c u l t i e s so

far as the provision

o f gratuitous

services is concerned. Where

necessary services have

been

provided gratuitously by a

r e l a t i v e or

f r iend ,

should

now, as a general rule,

held that the value

t he

services so

provided should not

reduce the

damages payable t o

t he p l a in t i f f .

I read

t h i s quotation as

i f a f t e r Itprovidedlt h i s I b m u r

had added -

f o r

the in jured p la in t i f f

and to imply tha t h i s Honour would add the sums in quest ion

t o any

verd ic t .

But an

essent ia l

i s tha t the services ,c lothes

wages

(or t he v i s i t i ng

o f parents

i n Wilson

McLeay

(1961) 106 C.L.R.

523)were f o r p la in t i f f personal ly

- not as

here

for

the household;

o r the husband's business.

A s I

read his judgmen3

i n t h e

Gr i f f i t h ' s

case,

Stephen J.

t rea ts

the mat te r

s imi la r ly .

See

173 and 179.

He said a t p. 175 -

'!The

p r i n c i p l e i n

Donnelly v. Joyce

readily enables an injured

p l a i n t i f f

t o recover

damages

f o r

his accident-caused needs

met

by	thi rd par ty subvent ions in

those very cases

most

ca l l ing

f o r it.

I r e f e r t o those

deserving

cases

concerned

with

charitable subventions

by fr iends

o r r e l a t i v e s who,

t o benef i t

t h e p l a i n t i f f ,

and

with no

thought

o f

re l iev ing the

wrongdoer,

gratui tously

provide him with funds,

services o r goods .

Underlining i s mine - intended t o emphasise that the provis ion

of goods

o r services must

fo r t he p l a in t i f f .

In the

same case Mason J. (P. 192) a l s o expressed

the opinion that the relevant passages

quoted from Megaw J -

!l . . . .

accurately expresses the law....

He continued -

"The resgoncknt 's relevant

l o s s is h i s

incapacity t o look after himself

as demonstrated by the need f o r

nursing services

and

t h i s l o s s i s

t o be quantified by reference t o

the value

o r cos t of providing

these services.

7 .

--.

There may well be an area o f domestic service

rendered

t o or

for

an ' in ju red p l a in t i f f

where

even though

a	ttneedtl is demonstrated money worth ( o r f u l l money worth)

o f such

services

i s not

recoverable.

Samuels J.A.

r e fe r s

t o t h i s sub jec t i n Kovacs v.

Kovacs

(N.S.W.

Court o f Appeal

May

1980).

Perhaps t h i s i s pa r t i cu la r ly so in respec t

of some services when provided by a

near re la t ion.

But

I do not re ly

upon that for the view I express.

It was

not anyway the subject	o f close discussion	a t the appeal
o r on the evidence.

There

i s a

d i s t inc t ion in . the cases

o f

Donnelly,

Beck v. Farrelly

and Gr i f f i t h s v.

Kerkemeyer

from	the present in tha t the p la in t i f f s in those cases

v i r t u e of

a gratuitous provision actually received

something

they needed personally; whereas here

the

appellant received nothing other than being relieved

the

necessi ty t o have

carried out

sec re t a r i a l and domestic

services f o r her husband

and

i n t h e i r

household respectively.

i s argued

tha t

( i n t h e

Donnelly sense) her

l o s s i s

the exis tence

o f

the need

for

those serv ices ( secre ta r ia l ,

domestic).

Yet

those services

were not provided

t o o r f o r

her

personally.

Accordingly,

i n so far as the

verdict

d i d not provide

f o r the additional cost

s ec re t a r i a l

o r domestic services,

it cannot, i n my view, be said t o

be	def ic ient in the sense those authori t ies envisage.

I t may be of some ass i s tance , in

a case where the

facts

are not s imilar ,

and

which

was

decided before the

Donnelly and G r i f f i t h s cases, viz,,

Bivone v. Welfare

& Anor.

(1971) 1 S.A.S.R.

431 t o note what Mitchell J. said

(by way o f ob i t e r ) p.

433 -

"Certainly' wages which an

employer paid f o r work which

an incapacitated employee

would otherwise have done,

could not be considered part

o f the employee' S damagesk merely

by reason

o f

the fac t tha t the

employer still paid the

employee v S

wages. (I

But h

er. finding does not dispose

t h e p l a i n t i f f ' S

c l a

i m

i n t h i s a r e a .

I n my

view,

the appellant did suffer such

physical detriment as,reduced her abil i ty

t o

housework

o r ac t a s

a secretary.

There w a s n o t created

thereby,

view,

llneedfl which

should have been reflected

in the

v e r d i c t i n t h e

Donnelly sense.

But

t h i s does not

put

end

to	her r igh ts .

Her physical detriment (confirmed

i n p a r t by her

i n a b i l i t y t o do housework) reduced her capacity t o earn both as a Secretary-stenographer and as a nursing s is ter . Some measurement o r quant i f icat ion of that detr iment as

stenographer i s found

i n t h e

amount

paid for addi t ional

secre ta r ia l ass i s tance .

Again,

has

not

been

argued

that she should recover those-precise

amounts,

o r

t h a t

i f

uninjured she

would have done

th i s addi t iona l

work thereby

t o earn those

sums in addi t ion

t o wages which were paid t o he)

Some measure i s t o be found i n h i s Honour's

of the potential earning

o f

nu r s ing s i s t e r

judgment quoted.

Damages are recoverable

where it i s proven t h a t

an established-by-evidence condition

may be 'a possible

cause o f f i nanc ia l loss ( I t i s o r may

be productive of

f inanc ia l

loss1 ' )

in the fu ture .

Cases

such as Callaghan v.

Wm.

Lynch

Pty. Limited

1962 N.S.W.R.

871 (Callaghan) refers t o the possible

recurrence o f a condition caused

by defendant 's tor t ious

actions. If such

recurrence

i s not a

"mere poss ib i l i t y t t

but a " r ea l chance" even	i f improbable, it should be
evaluated.

I n Ivkovic v.

Australian-Iron &.Steel Ltd.

1963

S.R.

(N.S.W.)

598, 603, 604, 607,

608,

there i s reference

t o the decision in Callaghan

and an acceptance that

it i s

s u f f i c i e n t f o r a

p l a i n t i f f

t o prove

p o s s i b i l i t y of

p a r t i a l economic loss.

And cf.

Chaplin

Hicks

1911

2 K.B.

786 Jones v. Griffi th

1969 1 W.L.R.

795.

Thurston v.

Todd 19661 N.S.W.R.

321 per Jacobs

J . A ,

a t 327.

The

p o s s i b i l i t y t h a t

she might have

t o work

secretary otherwise than for her

husband,

o r as a nursing

s i s t e r , i s , i n my

view,

not so remote nor

in tha t ca tegory

t f , . . . .poss ib i l i t i es tha t a re

s l i g h t , o r ohances

whi-ch are nebulous.

(Callaghan p.

877)

so t h a t it should be disregarded.

I n my

opinion the

sum

awarded does not take account

and i s inadequate t o compensate her for these aspects

her diminished physical potential in respect of earning

capacity.

Speaking for myself, I shciuld have sought

t o

increase her damages by the sum I thought appropriate

f o r the impairment of her earning capacity.

It i s so

l i t t l e d i f f e r e n t from

the amount by

which

the majority

have increased the

award o f damages

t o he r , t ha t

concur

in the, conclusion they reached

and the order proposed.

[1980] FCA 209

18 Jun 1980