Cummings, Lyn v Canberra Theatre Trust

[1980] FCA 209

L

. -

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

of cost of household ass i s tance where paid for

by p l a i n t i f f ' s husband.

Lyn Cummings v. Canberra Theatre Trus t

N o . F.C.25 of 1 9 7 9

Coram : Brennan, McGregor and Fisher JJ.

Date :	1 8 June 1980.
Canberra.

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I N THE FEDERAL COURT OF AUSTRALIA)

1

AUSTRALIAN CAPITAL TERRITORY

1 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 of 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 be varied by 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" .

3. 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

1 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 of 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 by 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

2.

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 of

her earn ing capac i ty and , by amendment of 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 an 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 a sum t o c o v e r b o t h p a s t and f u t u r e cost of

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 a c h a i r upon which she w a s p repar ing

t o s i t , t o view a 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 a 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 a 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 a 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 is

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 d id 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 a 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 of 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 a length of t i m e .

I 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 . 'I

On 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 do 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 of Secre ta ry in her husband ' s

p r a c t i c e , a t t h e rate of $200 -QO, a

week. It 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

do 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 h: able t o perform

the o rd ina ry du t i e s o f a nurs ing sister. fie noted, however,

that she had

"vo lun ta r i ly g iven up t h i s occupation before

the accident occurred, i n order- that she

could a c t as a 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 , On t h e

evidence, I 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 of earn ing

capac i ty on t h e b a s i s of h e r loss of capac i ty to ea rn as a

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.

. -

. . .

5.

. 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 of 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 it 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. As 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 of a r e d u c t i o n i n e a r n i n g

capaci ty had been established, he 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 he 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 .

A diminut ion in earn ings i s a na tura l and f requent

coficomitant of a 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

, - . .

6.

ob ta ined work or r e t u r n e d t o work after an i n j u r y a n d h a s

been pa id dur ing a 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 , it

d o e s n o t follow t h a t h e h a s s u s t a i n e d no loss of 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

of 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

a d i m i n u t i o n i n e a r n i n g s as t h e r e s u l t of his i n j u r i e s i s

ano the r ques t ion , and i f he 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 a 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 an award of 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

of 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 of

h i s e a r n i n g c a p a c i t y i s o r may be produc t ive

of f i n a n c i a l loss. I' (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

7.

be gauged by t h e quantum of t h e wages paid t o t h e c a s u a l

employee. A s Mi tche l l J. 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 of 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 of Appeal i n New South Wales i n Allan v. Loadsman,

(1975) 2 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 a 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 an approach to the a s ses smen t o f an 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 of 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.).

We do no t f ind it necessary t o analyze the

judgments i n Allan v. LOadsman, supra. If t ha t ca se t ended

to produce any misunderstanding of what an 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) 2 N.S.W.L.R.389 a t p.397 e t seq;

8 .

Kealley v. 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 a 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 v . 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 v. 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 it 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) 74 .W.N. (N .S .W. ) 168 and Smith v.

, -

. .

9.

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 as a 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 up 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 be 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 to t h e a p p e l l a n t i f it were no t i nc reased

by 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

by 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 by 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 of 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 in 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 a 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 by t h e

a p p e l l a n t o u t o f t h e housekeeping allowance given to her by

her husband. In these c i rcumstances he concluded that

because t h e burden of th i s expendi ture fell on 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 of 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

be claimed by 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 by counse l to Pegrem v.

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 v. 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 on

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 it 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 of the domestic se rvan t s .

I t was n o t t h e payments made by 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

by 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 do 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 by 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 J. 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 a p l a i n t i f f , as a

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 a 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 by 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 . 'I

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

1 2 .

11 - 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 a 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 of

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

need i s or may be product ive of f inanc ia l

loss. However i t should no longer be 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 do 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 of 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 by 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 be 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 as 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 v. Kerkemeyer, supra. In support of

t h i s submiss ion he r e fe r r ed to the judgment o-f Mahoney J . A .

in 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,

a r ecen t ( 6 May 1 9 8 0 ) unreported judgment of the Court of

Appeal of New South Wales. In 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 by 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 he 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 of 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 by 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 as 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. In 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 a 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 of a 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 v. Kerkemeyer, sup ra , as t o t h e b e n e f i t

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

In ou r op in ion , t he trial Judge should have made an

award on t h i s a s p e c t of 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 a 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 of $15 p e r f o r t n i g h t €or 20 yea r s ,

us ing 6 % tables, and the appropr ia teness of 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 , We 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 to 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 l 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 of 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 of

'

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

I agree with the decision reached by my brothers .

A s I disagree with some o f the reasons they have expressed it

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 my 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

be payable .

A s I discern from his reasons h is Honour did f ind a

proven l o s s o f earning capacity in the sense o f a reduction

o f a physical a t t r ibute .

2.

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 as a nurs ing s i s te r ,

such events were improbable.

Is 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 a 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.

So 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.

He 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 of employing domestic

servants cannot be part o f the

p l a i n t i f f s damages.

4.

The arguments and au thor i t ies re fe r red on appeal, it

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 I re fe r

he rea f t e r . In Griff i ths v. Kerkemeyer( 1976-1977)139 C.L.R.

161 Gibbs J. said a t page .l65 -

Itin Beck v. 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 v. 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

a 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 is 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.

..' . '

5.

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 , it should

now, as a general rule, be

held that the value of 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

or wages (or t he v i s i t i ng o f parents as i n Wilson v. 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 p. 173 and 179.

He said a t p. 175 -

6.

'!The p r i n c i p l e i n Donnelly v. Joyce

1

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 be 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.... II

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

'6 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

by 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 of the

necessi ty t o have carried out more 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.

It 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 of 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 -

0.	1
' .,

"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 of 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 a

physical detriment as,reduced her abil i ty t o do housework

o r ac t a s a secretary. There w a s n o t created thereby, in

my view, a 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 an 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

a 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, it 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 a nu r s ing s i s t e r

judgment quoted.

I

9.

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. C. 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 a p o s s i b i l i t y of

p a r t i a l economic loss. And cf. Chaplin v. 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 as

a 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 of

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

of and i s inadequate t o compensate her for these aspects of

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 I concur

in the, conclusion they reached and the order proposed.