Hilbrands v Vorillas
[1988] TASSC 103
•28 October 1988
Serial No B35/1988[i]
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Hilbrands v Vorillas [1988] TASSC 103; B35/1988
PARTIES: HILBRANDS, Betty
v
VORILLAS, Aleck
HILBRANDS, Frederick
v
VORILLAS, Aleck
FILE NO/S: 2461/1984 and 699/1986
DELIVERED ON: 28 October 1988
JUDGMENT OF: Cox J
Judgment Number: B35/1988
Number of paragraphs: 35
Serial No B35/1988[ii]
List "B"
File Nos 2461/1984, 699/1986
BETTY HILBRANDS v ALECK VORILLAS
FREDERICK HILBRANDS v ALECK VORILLAS
REASONS FOR JUDGMENT COX J
28 October 1988
These two assessments of damages were heard together and arise out of a motor vehicle accident at Kingston on the 3 February 1984 when the defendant's vehicle was driven at a speed of about 35 kilometres per hour into the back of the stationary car driven by the female plaintiff. She claims damages for substantial personal injuries and the male plaintiff, who is her husband, claims damages for loss of consortium.
Immediately following the collision, I find the female plaintiff felt considerable pain in her spine and was taken to her family doctor at Snug by her parents who lived close to the scene of the accident. Dr Hamilton noted that she complained of a painful neck and shoulders and pain down the inner aspect of the right arm. She had a full range of neck movements, however the muscles of her neck and shoulder girdles were tender on both sides. Upper limb power and reflexes were normal. In his view she had suffered a mild to moderate whiplash injury. She was given Diazapan as a muscle relaxant and advised on fitting of a cervical collar.
An x–ray of the cervical spine the next day showed no evidence of fracture, dislocation or other abnormality. On review three days later she had begun to have severe headaches and her muscles were still tender. The use of the collar was emphasised and Mersyndol prescribed for her headache.
On the evening of the accident the female plaintiff had been travelling to work at the Don Camillo Restaurant in Sandy Bay where she was then employed three nights per week as a waitress. She was off work for a fortnight, but then resumed her duties. At this time she was having a lot of pain behind the eyes, blurry vision, a lot of pain in the left arm and pain from the neck through to the head. The worst aspect of her pain was the shooting pain into the head. She continued to wear the collar driving to and from work, but found it too restrictive while working. She persisted at work for about two months but found that working caused her so much pain the following day that she "used to just cry all day with a pain in my head, arm and shoulders".
She returned to Dr Hamilton on the 2 April 1984 with the history that, although her symptoms had settled for a while, they had returned and were as severe as ever. A course of physiotherapy was ordered, but this did not help and on the 12 April 1984 Dr Hamilton referred her to Mr David Cull, neurosurgeon, for opinion and treatment. He found that immediately after the accident she had developed symptoms consistent with a soft tissue injury to the neck and prescribed conservative treatment. By the time he reviewed her in November 1984 she had given up work and listed her main problems as constant occipital headaches, a pressure feeling around the ears and head, a lump like feeling in the back of her neck, pain down both arms which she described as a shooting pain which was fleeting and which occurred when she used her arms. In the meantime she had seen Dr Michael Jackson, an anaesthetist specialising in pain control and had been treated with several injections, one epidural and one nerve block and also some acupuncture. None had helped reduce the pain. Mr Cull considered that her main problem at that time was due to muscle tension and spasm in the neck. He could find nothing to suggest a disc injury or nerve root irritation in the neck. He anticipated that her condition would be improved after she learnt relaxation techniques.
Notwithstanding these expectations, the female plaintiff's condition did not improve. She continued to consult Dr Jackson and in March 1985 was seen by Mr John Liddell, neurosurgeon, Mr Cull having left the State. She continued to complain of constant headaches, and neck movement produced a sharp shooting pain in the back of her neck associated with occasional shooting pains down both arms more marked on the left than the right. On examination he found her neck movements were all mildly and diffusely restricted and she had a severe degree of tenderness in the mid line posteriorly in the lower cervical region. He could detect no other abnormalities in her neurological examination, nor in cervical spine x–rays taken at that time. In September 1985 a cervical discogram at C56 and C67 showed both discs were morphologically abnormal, but neither reproduced her pain nor was her pain relieved by the injection of local anaesthetic into both discs. In December 1985 a further discogram showed that the disc at C34 was normal but that of C45 was abnormal and the injection into that disc produced a severe exacerbation of her normal pain. Mr Liddell recommended a spinal fusion at this level, but stressed to the patient that he could not confidently offer complete relief of her symptoms.
In late February 1986 the female plaintiff underwent an anterior cervical discectomy at C45. Unfortunately the surgery produced no change in her condition, notwithstanding that there was no movement at the fusion site. Because of her ongoing discomfort Mr Liddell repeated the diagnostic discography at C56 on the 30 September 1986 and on that occasion it reproduced her pain. On that basis he suggested that a second spinal fusion at that level might improve her symptomatology. She however has been, and still is, reluctant to undergo further surgery, especially as all the hopes she had pinned on the first fusion had been dashed. Mr Liddell has continued to review her and found her symptoms unchanged. Since the failure of the discectomy he has noticed her become quite depressed. As he could not rate the prospect of a second fusion alleviating her symptoms above a mere possibility, he was reluctant to urge that course upon her and considered she was not being unreasonable in declining to undergo it. The same view is expressed in essence by Mr F. G. Binns, orthopaedic surgeon, and Dr Jackson.
Despite the best efforts of the medical experts who have treated the female plaintiff she is, after 4½ years, still suffering the same painful and debilitating symptoms. None of those who have examined her can offer any treatment which can confidently be said to be likely to improve it other than the medication she presently takes to control it.
The evidence given by the plaintiff's medical witnesses was not seriously challenged by the defence. Mr G. P. Duffy, neurosurgeon, was called by the defendant and he stated that in the absence of objective signs compatible with her symptoms he felt there was a significant conscious or unconscious exaggeration of the symptoms. Nevertheless, I prefer, with respect, the general body of opinion advanced by the plaintiff's experts who have seen considerably more of her throughout the whole period since the accident than Mr Duffy (who appears to have seen her only twice) and who have therefore had a greater opportunity to observe the inconsistencies one would expect to find in a person who is exaggerating his or her symptoms, whether consciously or not. I am satisfied that the female plaintiff has been experiencing the kind and degree of pain of which she has consistently complained. I am also satisfied that she will continue to suffer these symptoms for the rest of her life.
The female plaintiff was born in Holland in 1945 and migrated to Australia with her family when she was five years' old. She has lived most of her life in Kingston and the Channel area. She had a happy childhood in a close knit family and was educated at the Taroona High School to grade nine. She was of cheerful disposition, keen on sports and achieved membership of the State basketball team in about 1963. She was also a good swimmer. After several years working as a pharmacy assistant upon leaving school she, at the age of 20, married her first husband who was a member of the RAAF. They lived in Sale, Victoria, for a few years and when she was expecting her first child her husband was killed in a motor vehicle accident.
The female plaintiff returned to her parents in Tasmania where her daughter was born and she remarried in May 1970. The male plaintiff was also of Dutch origin and had migrated at a later age. He is about 2½ years younger than she and is a self–employed brick layer. After their marriage she bore three further children, a son and two daughters, the child of the first marriage being brought up by the male plaintiff as his own child. At the time of the accident the children were respectively 15, 13, nearly 11 and nearly 6 years of age. In the early years of the marriage the female plaintiff had some work as a pharmacy assistant and the family spent two years overseas during which time they returned to Holland. Upon their return to Australia in about August 1975 they had few savings and the female plaintiff a few months later procured work as a full time waitress at the Don Camillo Restaurant working five nights per week. After about 2½ years the family moved to Snug where they had bought a block of land containing three quarters of an acre and resided in a caravan on the site where the male plaintiff, with the assistance of his wife, built a home of approximately 17 squares. The female plaintiff gave considerable help to her husband preparing mortar, cleaning bricks and doing general carrying and labouring work on the project. They installed an in–ground swimming pool and a barbeque area and the female plaintiff laid out and established a garden with extensive lawns. The house was habitable by about 1978, but the male plaintiff continued to work on it up until the time of the accident, shortly before which it was placed on the market for sale.
In the period between late 1975 when she commenced to work at the Don Camillo and the time of her accident, the female plaintiff worked for some years on a full time basis of five nights per week, each of six hours. She ceased to work prior to the birth of her last child in 1978, but when that child was about 18 months old she resumed work on a part time basis, at first working one night per week. Not long afterwards, however, she had got back to three nights per week and there were times when she worked full time again when other staff were on holiday. A few months before the accident her husband suffered an attack of pericarditis and had to cease work temporarily. For a month or so in that period the female plaintiff was working five nights per week. However, at the time of the accident her normal working times were three nights per week and this would have continued, on the probabilities as I find, at least until the youngest child started school full time when some changes might have been made. I will discuss these possibilities later.
The female plaintiff derived considerable satisfaction from her work, being an energetic and outgoing person. She was undaunted by the travelling time which extended her working day by up to another hour. It was she who tended the garden and mowed the lawns. In addition she did all her normal housework, was a keen and productive seamstress and knitter and took an interest in the local Brownie group. She enjoyed informal entertaining in her home and had a good relationship with her four children. She and her husband had an excellent relationship and presented as a stable and happy couple.
By way of contrast, their enjoyment of life since the accident has declined dramatically. The female plaintiff is in constant pain. She is unable to do heavy housework or ironing. The children have had to shoulder the burden of assisting with housework beyond what would be regarded as normal or reasonable in the average family. She is unable to manage gardening or to participate in the children's recreational pursuits. She is irritable, frustrated and depressed at her lot and feels guilty that her reactions have soured her relationship with her children and husband. She rarely entertains and has to rest for several hours in the day, thus discouraging former friends minded to visit her from doing so. Sexual relations between the plaintiffs, previously of a frequent and highly satisfying nature, have been severely curtailed, there being a diminution in both quantity and quality.
Dr R A Pargiter examined the female plaintiff in April 1987 and found psychological symptoms consisting of insomnia, irritability, low mood, morbid thought, reduced concentration and activities, tearfulness, tightness of the throat, headaches and palpitations. He made a formal diagnosis of Prolonged Depressive Reaction, or, alternatively, Chronic Reactive Depression. In relation to her then prognosis he said:–
"The prognosis for her psychological state is bound up with that for her physical condition. There is a self reinforcing system whereby one exacerbates the other so that there is probably some scope for psychiatric/rehabilitative intervention. More intense relaxation therapy in a setting of physical and social rehabilitation, together with counselling and possibly anti–depressant medication might well allow her to accept what at this stage appears to be a chronic condition."
Fifteen months later Dr Pargiter found that the female plaintiff's own overall assessment of her progress in that period had deteriorated markedly, both physically and mentally. He noted that her face was more lined and worn and that there was a hopeless tone to her voice and her general demeanour was one of melancholy. He did not alter his diagnosis or prognosis, did not anticipate that resolution of the litigation would be likely to result in any significant improvement in her condition, but thought that some relief of her depression and distress might be obtained if she would accept the need for long term psychiatric treatment in which antidepressant medication and family therapy would probably play a part.
The female plaintiff, whose evidence generally I found credible and unexaggerated, has suffered a grave impairment of bodily integrity and function. Her lifestyle has been altered drastically. Her sleep pattern has been grossly disturbed. She has lost the ability to undertake activities related to both work and relaxation which previously gave her pleasure and satisfaction. She has suffered a change in personality and is now an unhappy and depressed person whose relationship with other members of her family has been severely affected and whose marriage has been put under considerable strain, a strain it may not survive. The Queensland Full Court in Hird v Gibson [1974] Qd R 14 held that, if the break up of a marriage is a foreseeable consequence of the defendant's tort, that is a proper factor to be taken into account in assessing the injured victim's damages. In that case it had occurred, but in the present it is only a possibility. It would be appropriate to allow damages for such eventuality if the chance of this occurring is substantial rather than speculative (Davies v Taylor [1974] AC 207 per Lord Reid at 212). While there is some possibility it may occur I do not rate the chance very highly having regard to the length of time the parties have in fact stayed together, their cohesion as a family group and the possibility that with psychiatric treatment acceptance of their lot will become more palatable. I bear in mind in assessing the female plaintiff's damages that the strain on her marriage in the past has detracted from her general enjoyment of life and will continue to do so for at least some time to come, but I do not make any extra allowance for the contingency that the parties will permanently separate. The female plaintiff will continue to suffer considerable pain and to be deprived of many of the amenities of life she previously enjoyed. Under this head of damages I award her $35,000.
In my view there is no realistic likelihood that the female plaintiff will ever resume work. But for the accident I am satisfied she would have continued to work well into the future. She was highly regarded by her employer and his head waiter who now has his own restaurant and she would have been assured of steady work in the restaurant industry for as long as she had wished to work. The opportunity existed for working longer hours and for changing from night to day shifts. In addition to her enjoyment of the work itself, she had an added incentive to work as her husband's cardiac condition rendered his ability to act as sole breadwinner less certain than one in perfect health. I do not wish to overstate this factor as the plaintiffs had the opportunity to present medical evidence on the male plaintiff's condition and future prospects when the family general practitioner Dr Hamilton was called, but no such evidence was led. I treat his condition therefore as one which could be such as to interfere with his ability to earn (as the evidence shows it has on occasion in the past).
The female plaintiff gave evidence that upon her youngest daughter going full time to school she would have increased her workload to five days or nights per week. She also said she intended to work until her husband retired, that is when she would have been about 67½ years of age. I am satisfied she would have continued to work for about three days or nights per week for many years to come, but I think it unlikely she would have continued much beyond the usual retiring age of 60 years. I also think it highly unlikely that she would have increased her work to a full time level. Had she done so, working five nights per week on an indefinite basis, I cannot imagine that this would have been regarded as satisfactory by her children or her husband, notwithstanding his claims that he would not have resented her doing so. Even before the accident they had resolved to sell the large Snug property and move to a more central position at Kingston for the reason (among others) that he thought "she was doing far too much work". Even though the additional income would have been welcome, there was not on the evidence any compelling demonstration of any financial hardship on their part, save when the male plaintiff was unable to work, and the disruption to their life by her working five nights per week indefinitely would have been unnecessary and intolerable to him in my view. Even a change to day time work five days per week, though no doubt more palatable to her husband than five nights' absence per week, would have seriously impinged upon the time available to enjoy the company of her children and to indulge in the lifestyle to which she had become accustomed. I do not think it probable she would have worked so as to earn any more than the wage attributable to three nights per week. I propose to assess her economic loss on that basis, but in determining an appropriate discount for future contingencies I bear in mind the fact that she may from time to time have worked for greater periods of time, perhaps because of her husband's ill health, to fill in while another employee was ill or on holiday, or because she had some specific project such as an overseas trip or the like for which she wished to save.
As I understand the submission of counsel for the plaintiff, by virtue of the fact that the female plaintiff has been paid workers' compensation on average weekly earnings for one who worked three nights per week, there will only be an accrued loss of earnings to date if I find that she would at some stage in the interim have worked for some greater number of days. As I have not done so it seems inappropriate to make an award under that head and then reduce it to zero having regard to the payments made. However, I will give the parties the opportunity to be heard on this aspect.
As to the future the nett weekly loss of income, having regard to tax and to the cost of travelling between her home at Kingston and her place of employment (namely $20.40 weekly), amounts at present to $146.52. It is now approximately 16½ years to her 60th birthday and nearly 24 years to her husband's 65th birthday. She might well have worked beyond the former anniversary, but as I have said I think it unlikely she would have continued in employment to the latter. Taking a point nearly halfway between the two dates gives a loss of 20 years' employment which on 3% discount tables produces a present value of $115,458. An appropriate discount for contingencies in the circumstances would be something in the order of 12½ – 15% and I accordingly allow a round figure of $100,000.
The disabilities of the female plaintiff have, since the accident, created a need for assistance of a domestic nature. She cannot undertake heavy housework and in consequence her children and other members of her family have assisted her in doing this work. This has included vacuum cleaning, washing and scrubbing bathrooms and floors, hanging out the washing on the clothesline and retrieving it and ironing. One of the children regularly accompanies her on her weekly shopping expeditions and helps by handling and carrying all the goods she buys. For about six months after her fusion, assistance averaging at least eight hours per week was provided by her mother and sister–in–law and at other times her immediate family have helped with these household chores contributing at least four hours per week. I find that there will be a continuing need to provide such services, although the time spent in doing so will be reduced to some extent as the children grow up and leave home. I am satisfied that it would have been quite reasonable in the circumstances for the female plaintiff to have secured the paid services of some person to assist her for such times to date and, in accordance with the principles expressed in Griffiths v Kerkemeyer (1977) 139 CLR 161, I propose to make an allowance for the voluntary services rendered to date on the rates agreed between the parties as reasonable. To the date of trial this amounted to $7,340. The current rate per hour is $8 and I think it would be reasonable to allow for an average of three hours per week of paid domestic assistance for the rest of the plaintiff's life. With a life expectancy of 37.3 years, $24 per week discounted at 3% amounts to $28,296. I round both figures off and allow $35,000 in respect of the female plaintiff's past and future needs for domestic assistance.
The female plaintiff will continue to require medication and review by her general practitioner. A claim in the sum of $14,737 has been made in respect of this need. On the evidence this claim has been properly quantified, but counsel for the defendant submits that it would be unduly pessimistic to find that her present need for medication will continue at the same level indefinitely. I do not consider that this is so. Three drugs are presently prescribed, Mersyndol, Serepax and Rohypnol and having regard to the chronic nature of her injuries I think it not unreasonable to make allowance for the likelihood that they or other similarly expensive forms of medication will be required throughout her life. Indeed if psychiatric treatment is undertaken some further medication may be required, although such drugs may merely replace what she is presently taking. I allow the amount claimed.
Dr Pargiter recommends treatment which the female plaintiff would be well advised to undergo. It would extend over an initial period of 1–2 years and, if successful, could continue over many years. The evidence as to cost is imprecise, Dr Pargiter estimating the cost of the first year at $1,000 and "probably a little less in subsequent years". I allow $3,500 under this head. If the treatment is, after two years, unsuccessful any unexpended surplus should be considered as compensating a consequential undervaluing of the level of her general damages for pain, suffering and general distress, for in assessing that figure I have taken into account the possibility that her condition may be somewhat improved by this treatment. She also claims a capital sum in respect of periodic physiotherapy and massage. At present she has a massage once a week at a cost of $27. It gives no long term benefit, but does give temporary relief while the treatment is being administered. I feel unable on the evidence to make a positive finding that the female plaintiff has an ongoing need for physiotherapy and make no allowance for its future provision.
It is reasonable in my view to make some allowance for the cost of travelling to attend her general practitioner and this has been quantified in the sum of $849 which I consider reasonable. Some allowance should be made for travelling to treatment centres other than the rooms of her general practitioner, for example her psychiatrist, and those who would combine with him in her treatment. I will allow $1,200.
I assess the female plaintiff's damages (subject to any submissions about her past economic loss) in the sum of $189,437 made up as follows:–
Pain and suffering and loss of the
enjoyment and amenities of life $35,000.00
Lost earning capacity 100,000.00
Provision of domestic assistance,
past and present 35,000.00
Future medication and general
practitioner review 14,737.00
Provision for psychiatric treatment 3,500.00
Travelling 1,200.00
Grand total $189,437.00
The male plaintiff seeks damages for loss of consortium and his counsel invites me to consider this claim under three sub–headings – loss of services, loss or impairment of companionship and society and impairment of the sexual relationship.
The leading case of Toohey v Hollier (1955) 92 CLR 618 makes it clear that, while the loss which is to be compensated is only one of a temporal as opposed to a spiritual nature, that temporal loss is not limited to actual expense, past or prospective, which has been or will be incurred by the husband. Compensation is to be confined to material or temporal loss capable of estimation in money. "Such elements as mental distress are to be excluded but the material consequences of the loss or impairment of his wife's society, companionship and service in the home and the expense of her care and treatment incurred as the result of her injury form proper subjects of compensation to the husband." (Ibid, at 627). In an earlier passage in the joint judgment of Dixon CJ and McTiernan and Kitto JJ at 624 their Honours with seeming approval said of the approach taken by the trial judge whose award they did not vary:–
"It is clear enough that of the elements taken into account in arriving at the assessment of damages none represented distress of mind, diminished happiness, lessened enjoyment of home life or of conjugal society. There was no compensation for anything beyond the interest which the male plaintiff may be supposed to possess in the conduct by the wife of the household affairs and in the performance of domestic duties to his material advantage and the past loss of her society and assistance and the prospect of a suspension again occurring of such society and assistance and of further medical or other expenses being incurred. But it seems at least probable that the assessment of the husband's less specific damages took into account the material consequences to the husband of the wife's reduced capacity to conduct the household affairs and perform domestic duties."
So far as the claim for loss of services is concerned, the evidence shows that the female plaintiff has a reduced capacity for heavy housework and other household chores such as ironing and shopping. To the extent that others, including the male plaintiff, have so far met her needs in this regard an allowance has already been made in accordance with the principles expressed in Griffiths v Kerkemeyer (supra). Furthermore, an allowance has been made to meet those needs in the future. Those allowances have been made to meet the needs of the female plaintiff, but insofar as they cover needs common to both they have coincidentally gone a substantial way towards meeting the needs of the male plaintiff and it is not fair or just that he should also be allowed damages to provide the same service. No doubt there are some services of a domestic nature formerly rendered to him by his wife which were additional to those already covered in her award which she no longer performs. When considering the monetary value of this shortfall, I bear in mind the words of Hutley JA in J K Kealley v Jones [1979] 1 NSWLR 723 at 741:–
"Though I appreciate that it is theoretically correct that a husband is entitled to monetary compensation for having to perform more services in the home than he did prior to the accident, where such services are not so onerous as to preclude him from working, with a consequent loss of actual money, I can see little justification for making anything more than a nominal award. In assessing damages in this situation, regard must be had to the public mores in Australia and, where a husband and wife are both working, unless they are in extremely well paid positions permitting the employment of full time domestic assistance, the sharing of domestic burdens with the wife is expected of the husband, even where his wife is perfectly healthy. To give monetary compensation to a husband just because there is some small variation of the amount of work in the home which he is required to perform in his leisure time would seem to me to disregard the realities of the Australian domestic scene."
See also the comments of Johnston J. in Andrewartha v Andrewartha (1987) 44 SASR 1 at 15 – 16 where his Honour said:–
"It is plain that the proper level of damages for loss of services can vary enormously. One can envisage circumstances where a very substantial award of damages can properly be made. I instance a situation where spouses have a quite young family, the children being below school going age and where by a considered judgment involving both spouses, the husband works full–time and the wife remains at home looking after the children. In these circumstances it is likely that, if by some tortious act of a third party, the wife's capacity to perform virtually any household functions is destroyed, the husband could make a substantial claim under this head. It would clearly appear necessary that in order to maintain his employment and at the same time provide care for his family, he would be obliged to engage the services of paid help for a not inconsiderable part of the week (and indeed the position for damages would be exactly the same if the roles were reversed and the wife was suing for damages for loss of consortium of the husband).
On the other hand, where the spouses in question are childless or alternatively the children have grown up and moved out of the home and where their manner of life is simple and undemanding and they are accustomed to share various household tasks, then it would seem to me that the quantum of damage allowed under this head will be very small, there being no reason in the facts as supposed to prevent the husband from rearranging things so that whereas before he provided some part of the services for both of them, now he will provide all the services or much the greater part of the services for himself (assuming the wife is otherwise cared for)."
This case, like that of Mr Andrewartha, is neither of those instances and I think the proper approach is to include an allowance for loss of servitium, which while more than nominal is nonetheless modest.
The male plaintiff is entitled to damages for the diminution of the comfort and companionship given by his wife. He is not entitled to damages for "lost happiness" (per Hutley JA in Kealley v Jones (supra) at 739) or the "pain and suffering, distress and depression, the heartache and sorrow, the mental, emotional and 'spiritual' losses" which Mr Andrewartha was found to have suffered over the years following the accident (per White J in Andrewartha v. Andrewartha (supra) at 2). Samuels JA in Kealley v Jones (supra) at 746 – 747 essayed this explanation of the limits to be placed upon recovery:
"In my view, the limitation to be placed upon recovery is this. The husband may claim damages for his wife's lost or impaired capacity to provide the domestic services or companionship she was wont and able to render before injury. It is, therefore, the wife's diminished performance which is in question. Hence, no damages are recoverable if she continues to do what she did before although, as Hutley J.A. has put it, 'with a scowl rather than a smile'; and the husband has no remedy for distress caused by his wife's moroseness or melancholy, or by her suffering from her own injuries, provided her efficiency remains unimpaired. Nor, it seems to me, can he recover damages specifically for his lessened enjoyment of his home when his wife proves unable to provide her accustomed conjugal assistance. The damages are to compensate him for the loss of services and society, and not for the feelings of emotional deprivation which the wife's incapacity may produce."
He may also claim damages for the loss or impairment of the sexual relationship with his wife previously enjoyed by him. Damages are not confined to situations where there is a total loss, whether temporary or permanent, of the capacity to engage in sexual intercourse (Best v Samuel Fox & Co Ltd [1952] AC 716; Shutt v Extract Wool and Merino Co Ltd (1969) 113 Sol J 672 and Mignot v Bostock, a decision of Chambers J, unreported, No 251974). In respect of this heading Samuels JA said in Kealley v Jones (supra) at 751:
"... however delicate the inquiry may be, the availability of sexual intercourse is a comfort of a most material kind which is provided by one spouse to another."
In the present case the plaintiffs had enjoyed a very active sexual life. In the few months between the accident and the date upon which the female plaintiff gave up work the frequency of it was reduced from daily to monthly and from that time until the unsuccessful fusion the evidence suggests that it was about weekly. For the last 18 months, according to both plaintiffs, there have been hardly any occasions at all when they have had intercourse, the wife not feeling any inclination or desire to do so and the husband refraining partly because of fear that such attentions would hurt her and partly because of doubts about his love for his wife and anxiety about whether they have a future together. All these inhibitions have stemmed from her chronic pain and her changed personality consequent upon it and her feelings of frustration. Damages may in my view be awarded to the male plaintiff for the loss of this feature of the marriage, although not for the emotional distress abstinence, which the circumstances have in effect forced upon them, may have caused or exacerbated.
Bearing in mind the limitations upon this kind of claim I award the male plaintiff $7,500 damages for loss of consortium.
Notes of Cases Reference: [1988] Tas R (NC) 20; see [1988] Tas R 168.
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Notes of Cases Reference: [1988] Tas R (NC) 20; see [1988] Tas R 168.
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