Hodges v Frost

[1984] FCA 99

Re: JANELLE MAREE HODGES
And: BRENDA FROST
Re: JAMES KEITH FROST
And: JANELLE MAREE HODGES
Nos. ACT G89 and G90 of 1983
53 ALR 373
Damages

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Gallop J.
Morling J.
Kirby J.

CATCHWORDS

Damages - personal injuries - assessment - whiplash injury resulting in disablement - services provided to wife gratuitously by the husband - damages recoverable in respect of gratuitous services - measure of damages - application and limitations of the decision in Griffiths v Kerkemeyer.

Practice - Federal Court - damages for personal injuries - principles governing interference by appellate court with award of trial judge - whether damages unreasonable or error of fact or law.

HEARING

CANBERRA

#DATE 12:4:1984

ORDER

(1) In the appeal Janelle Maree Hodges and Brenda Frost (No ACT G 89 of 1983), appeal dismissed with costs.

(2) In the appeal James Keith Frost and Janelle Maree Hodges (No ACT G 90 of 1983), appeal dismissed. No order as to costs.

JUDGE1

I have had the advantage of reading the reasons for judgment prepared by Kirby J. I agree with his reasons and the orders he proposes.

JUDGE2

I have had the advantage of reading the reasons for judgment prepared by Kirby J. I agree with his reasons and the orders he proposes.

JUDGE3

On 8 June 1980 Mrs Brenda Frost ('the wife') suffered injuries in a motor car accident. She was travelling in a car driven by James Keith Frost ('the husband'). Remarkably, the husband escaped personal injuries. The wife's injuries were occasioned by the negligence of Janelle Maree Hodges. Separate proceedings were commenced in the Supreme Court of the Australian Capital Territory on behalf both of the wife and the husband. The wife claimed damages for personal injuries and consequential losses. The husband claimed damages for the deprivation of his wife's 'comfort, society and fellowship' and for his performance of household duties consequent upon the wife's 'greatly reduced capacity'.

The two proceedings were tried before Kelly J on 21 October 1983. Liability was admitted in each case by Mrs Hodges. As Mrs Hodges is the Appellant in the wife's case and the Respondent in the husband's appeal it is convenient to refer to her as the defendant. His Honour proceeded to an assessment of damages. There was little significant dispute on the evidence. He gave a verdict of $63 900 to the wife and $12 500 to the husband, in each case with costs. The defendant appeals to this Court from the verdict in favour of the wife, claiming, in essence that the sum awarded was excessive and based upon an incorrect application of the law. As a defensive measure, the husband then appealed against the adequacy of the verdict in his case. However, it was made plain on the appeal that the husband's appeal would not be pressed if the Court were disposed to dismiss the appeal against the wife's verdict.

The case raises an important question concerning the entitlement of an injured person to receive compensation in respect of the services gratuitously performed in a domestic context by one member of a family for another, in this case by the husband for the wife. In considering an appeal from an award of damages made by a judge sitting without a jury, this Court will be slow to interfere with the award unless it is satisfied that the trial judge has acted on a wrong principle of law, or has misapprehended the facts or has for these or other reasons made a wholly erroneous estimate of the damage suffered.

See Miller v. Jennings (1954) 92 CLR 190, Dixon CJ and Kitto J at 195-6; and Gamser v. Nominal Defendant (1976-77) 136 CLR 145, Gibbs J at 148; Aickin J at 158. Additionally, where an attack is made on the amount of a damages verdict, the Court must look to the findings of fact of the trial judge. Where, as here, the trial judge has accepted the plaintiffs as witnesses of truth, it is appropriate, upon those matters in respect of which there is no specific finding of fact, for the Court, on appeal, to look at the evidence in the way most favourable to the respondent to the appeal. See Owen J in Besser v. The Broken Hill Propriety Co Limited (1958) 75 WN (NSW) 425, 426.

In order to consider whether the verdicts in the two actions, or either of them, evidence an appealable error, it is necessary to turn to the evidence proved in the two cases, and to his Honour's judgments.

Facts

The wife was born in 1925 and was thus 55 at the time of the accident. She had grown up in the country near Canberra. Her marriage to the husband was her second marriage. She had one child by the husband. She had returned to work in the Public Service in 1974 as a Clerical Assistant in the Defence Department. The husband gave evidence that prior to the accident the wife enjoyed good health and that their marriage was a 'normal' one. Indeed, he ventured the opinion that it was 'probably on modern standards, much above the normal relationship: a happy marriage'. The husband was a driver employed by the Department of Administrative Services. Although the wife worked, she did her own housework and preferred the husband not to do it. A psychiatrist (Dr William Knox) wrote a report which was admitted into evidence in which he expressed the view that the wife 'has been a moderately obsessional lady throughout her life, liking to keep things under control. She has always cared about keeping her house neat and tidy'.

Then, on 8 June 1980, the accident occurred. Within an hour the wife was suffering stiffening in the neck. Within two days she saw a doctor who diagnosed whiplash injury. She was off work until 28 June 1980. But even after her return to work, she lost a number of days until she finally retired from work in July 1984, about six months earlier than she had intended. She gave evidence that it had been her intention, but for the injury, to retire on her 60th birthday ie in April 1985. This evidence was accepted by Kelly J.

The whiplash injury suffered by the wife followed a not atypical course. She had to wear a neck collar, including to bed. She underwent physiotherapy but this provided only temporary relief. She suffered aching in the neck and headaches for which she took painkillers and medication to assist her to sleep. She suffered interference in her enjoyment of life in a number of respects such as dancing, walking, wallpapering, tending to a flower garden, and she was nervous in traffic. According to her husband, her disposition changed. She came home from work tired and irritable. If she tried to do housework herself, the resulting pain made her irritable and hard to live with. Whereas before the accident he did no housework in normal circumstances, after the accident he had to 'reorganise' himself 'completely' to do the vacuum cleaning, some washing, most of the ironing and cooking the evening meal. He estimated that he spent most of the time between 5 and 7 pm on these tasks each night, with time out for the meal itself. He would also spend three hours on Sunday doing the housework and on Saturdays he tried to do as much as he could.

The husband gave evidence that before the accident the sexual relationship between husband and wife had been 'quite normal, happy and satisfactory'. Afterwards there had been a 'very big change'. Sexual relations had 'fallen off to a great extent'. There were lengthy periods when intercourse would not occur at all. The wife claimed that she had 'lost interest through pain'. She estimated that intercourse was taking place with about half the frequency of before the accident. Kelly J that there were 'minor discrepancies' as between husband and wife in the matter of the frequency of sexual intercourse. He preferred the evidence of the husband to that of the wife but acknowledged that the discrepancies were 'really minor' and would not much affect his decision.

The wife's decision to retire early was supported by medical evidence. Dr Gytis Danta, a neurologist, expressed an opinion that it was very common for people to find that prolonged sitting, particularly stooping over desk work, significantly aggravated the pain associated with a whiplash injury. In August 1983 he prognosticated that the wife 'will have to be retired out of the Public Service if her symptoms do not improve, and this is quite likely'. Clinically, he said, the symptoms and lack of response to treatment were 'quite in keeping' with the injury described. He said:

My impression was that the prognosis was poor on account of the chronicity of her symptoms and the fact that she has not responded to any form of treatment. I had little to suggest in the form of treatment, but generally symptoms tend to improve with time. She may well continue with her pain for a number of years.

A similar view as to the prognosis was expressed by Dr Knox. He believed that the wife would continue 'with a degree of physical and emotional incapacity for at least several years'. He also expressed the view that whilst her symptoms would abate 'to some extent' there would be 'a permanent impairment to some extent both physically and emotionally in this lady'. When asked questions as to the complaints of pain and headaches and the time during which the wife was likely to continue to take or need to take headache tablets, Dr Danta said:

When I saw her the symptoms had been present for some three years and there was no sign of any improvement, so it is very likely that the pain is going to continue for a number of years.

When asked for his best estimate about the number of years she was likely to have 'these headaches' he said:

It is very difficult to predict, possibly two, three or even five years.

It is perhaps important to note that Dr Danta's estimate of five years was addressed to questions relating to headaches and headache medication. The written reports that were before his Honour estimate the duration of the general disabilities resulting from the whiplash injury more guardedly ('a number of years' Dr Danta; 'several years', Dr Knox).

Components of the verdicts

In addition to out-of-pocket expenses, loss of wages and compensation for early retirement, the plaintiff claimed for future medication, for loss of capacity to do her housework and general damages, including for pain and suffering. On the appeal, the defendant challenged the claim for medication. But the amount involved was small , it was not disputed in cross examination at the trial and the allowance of it does not involve an appealable error.

The principal dispute on appeal related to the compensation awarded to the wife in respect of the husband's gratuitous performance of household duties. Evidence was admitted, without objection, of the hourly rates for the provision of housekeeping services charged by the ACT Emergency Housekeeper and Home Help Service Inc. According to this evidence the rate per hour in the relevant period was $5.50 (7 July 1980 to 5 July 1981); $6.00 (6 July 1981 to 2 July 1982) and $6.50 (3 July 1982 continuing as at 18 October 1983).

In calculating the compensation payable Kelly J took into account what he took to be the principle laid down by the High Court in Griffiths v Kerkemeyer ( 1977-78) 139 CLR 161. He concluded that the husband spent a total of 15 hours a week doing work which was previously done about the house by the wife. On the basis of the figures supplied by the emergency housekeeping service, he calculated that the total past amount 'in respect of those services' would amount to $15 892.50. He deducted from the sum an amount of $890 'to make some allowance for ordinary contingencies in life'. As to the future, he allowed a period of five years which 'on the figures given to me would be $23 692.05'. He rounded this sum to $23 000. Doubtless conscious of the medical evidence then so recently given he added:

I would have deducted a good deal more from the figure but for the fact that I have to take into account the possibility that the condition from which the plaintiff suffers may extend beyond the period of five years which I have considered to be likely and I take care of that particular contingency in that way . . . I expect (the pain and suffering) to continue for another five years, on the balance of probabilities, gradually diminishing as she foregoes the stresses and strains which are associated with her working, taking into account also the fact that at her age the stresses and strains of life are likely to increase in any event.

His Honour awarded in respect of pain and suffering of the wife $17 500. He declared himself to be conscious of the need to avoid 'overlap' between the 'Griffiths v Kerkemeyer components' and other elements of general damages.

It is helpful to summarise the heads of compensation which made up the wife's verdict:

Loss of wages 1500

Loss of sick leave to retirement 100

Future medication 1875

Out-of-pockets as agreed 1432

Loss of wages due to early retirement 5000

Allowance for domestic services rendered to date

of trial 15000

Allowance for domestic services in future 23000

Other general damages, pain and suffering etc 17500

-----

$65407

Kelly J rounded the total and entered a verdict for $63 900.

In the husband's case, after referring to McIntyre v. Miller (1980) 30 ACTR 8, 9 in which reference was made to Toohey v. Hollier (1955) 92 CLR 618 concerning compensation for loss of consortium, his Honour awarded a verdict of $12 500. Again, he referred to the need to be careful not to result in an 'overlap of damages', by which he must be taken to mean burdening the defendant twice in respect of compensation payable as a result of the household activities of the husband. He said:

What the plaintiff recovers in the associated action, that is the plaintiff' wife, is damages for her loss of capacity. The money which she received in that regard may well be paid by her in token of her wifely affection to the husband for the work he has done on her behalf during the years and which he may be expected to perform over the years, but she does not hold that money in trust for him. She holds that money on her own behalf.

Taking into account the husband's separate loss of service, comfort and enjoyment of his wife's presence and the interference in their sexual activity, Kelly J reached a global sum of $12,500.

Gratuitous services

The nub of this appeal is whether Kelly J correctly applied to the facts of the case the principles enunciated by the High Court in Griffiths v. Kerkemeyer. Until that decision, it was settled law in Australia that a plaintiff could not recover an item of damages consisting of expenses which had not yet been paid, unless the plaintiff was legally liable to pay those expenses. This principle was implicit in the earlier decision of the High Court in Blundell v. Musgrave (1956) 96 CLR 93. Even before Griffiths v. Kerkemeyer it was suggested by Gibbs J, then sitting as Judge of the Supreme Court of Queensland, that the plaintiff could succeed if he could prove a compelling moral obligation to pay which would probably be observed Renner v. Orchard (1967) QWN 3, 6. Cf Glass JA in Burnicle v. Cutelli (1982) 2 NSWLR 26, 32. This approach to compensating the plaintiff derived from the normal principle of damages compensation that the liability of the tortfeasor is co-extensive with the actual and likely financial loss of the plaintiff.

Into this fairly simple and easily applied principle of compensatory damages the High Court of Australia injected a new principle in its decision in Griffiths v. Kerkemeyer. The reasons for the acceptance of this new principle may be summarised. Clearly, it was influenced by developments of the common law in England, specifically the decision of the Court of Appeal of England in Donnelly v. Joyce (1974) 1 QB 454. In that case it was held, in respect of gratuitously provided services, that compensation was payable not for financial loss as such but for 'the need for those . . . services, the value of which for purposes of damages . . . is the proper and reasonable cost of supplying those needs' (ibid, 462). Secondly, there had been developments in Australia. Bray CJ in Beck v. Farrelly (1975) 13 SASR 21 had declared that the principle in Donnelly v. Joyce of providing a source of compensation to a plaintiff in respect of gratuitous services was 'in accord with popular conceptions of justice'. A similar notion had earlier been advanced by Lord Reid in Parry v. Cleaver (1970) AC 14. In short, it was considered 'revolting to the ordinary man's sense of justice' that the wrongdoer should gain and the victim should suffer loss because friends and relations or others had offered gratuitous assistance as a result of their benevolence. Thirdly, Stephen J in Griffiths v. Kerkemeyer (ibid, 171) suggested that the law, faced by a policy choice between letting the loss lie where it fell, upon the provider, or allowing for recovery, would choose the latter 'either ensuring or merely anticipating that he will suitably remunerate the provider from the proceeds so recovered'. Although Lord Denning in Cunningham v. Harrison (1973) QB 942 had expressed the view that a plaintiff husband in that case would hold the damages awarded to him, attributable to the service rendered, on trust to pay them over to his wife, this view appears to have been rejected. See Stephen J, Griffiths v. Kerkemeyer, ibid, 171. That is not to say that account will not be taken of the possibility of 'suitable remuneration'. In the present case, Kelly J appears clearly to have had these principles in mind and expressed the essence of them in his oral judgments.

Further explanations can be offered for the principle in Griffiths v. Kerkemeyer. Only Stephen J in that case referred to theories of loss distribution (ibid, 176). But in terms of public policy, it is at least arguable that the law of damages should encourage the provision of non-institutional care by acknowledging some entitlement to compensation in respect of gratuitous services benevolently offered by relatives and friends. Such services may prove to be more efficacious and certainly more congenial than paid services in respect of which there would be no dispute as to recovery. They may be available during longer hours. Encouraging such facilities may actually minimise the liability of defendants. A rule against such compensation could have a tendency to force injured persons to secure more expensive, less convenient, less readily available and less congenial paid services. Alternatively, by depriving some victims of injury of the opportunity of compensation for proper assistance, it could result in a proportionate increase in compensation under other heads of damages such as for pain and suffering. This point was also made by Stephen J in Griffiths v. Kerkemeyer (ibid, 179).

Finally, it is made plain in Griffiths v. Kerkemeyer and in cases since that what is being compensated for is the loss of the injured victim's own capacity, not the benevolent activities of relatives and friends. True it is, to put a money value on that loss of capacity, regard is had to the nature, intensity and duration of the gratuitous services. However, the compensation, though calculated with these services in mind, is not for the services but for the loss of capacity which the services may help to evidence.

In the well known passage in Griffiths v. Kerkemeyer Gibbs J (as he then was) laid down the proper approach. The fact that services had been or will be provided gratuitously was no longer to be conclusive of the question. Instead, the matter was to be viewed in two stages. He said at pages 168-9:

First, is it reasonably necessary to provide the services, and would it be reasonably necessary to do so at a cost? If so, the fulfilment of the need is likely to be productive of financial loss. Next, is the character of the benefit which the plaintiff receives by the gratuitous provision of the services such that it ought to be brought into account in relief of the wrongdoer? If not, the damages are recoverable.

Attempted gloss

Since the decision in Griffiths v. Kerkemeyer, attempts have been made to refine and clarify the principle which the case enunciated. In the infinite variety of factual circumstances, it is not a simple task to discern clear guiding rules from the judgments of appeal courts which have had to reflect upon the operation of the Griffiths v. Kerkemeyer decision in awarding compensation in respect of gratuitously offered services. Clearly, it is not correct to approach compensation to a victim of injury by adding to all other rights to compensation the new factor comprising money damages calculated by reference to nothing more than commercial rates for household assistance. Great care must be taken in the application of the Griffiths v. Kerkemeyer principle. It is convenient to collect a number of rules suggested by the authorities:

(1) The services must be reasonably necessary (Gibbs J, 168). That is, they must go beyond the mere arrangement of domestic chores or the tender attention to comfort that can be expected in an affectionate environment.

(2) The services must be such that, but for the gratuitous and benevolent activities, it would have been necessary to secure assistance at a cost. Obviously, this will be a matter of judgment and degree to be determined upon the facts of each case. (Griffiths v. Kerkemeyer, ibid, Gibbs J, 168).

(3) Where gratuitous services have been given, it must be considered whether they should be discounted so that they do not amount to a windfall for the wrongdoer. The plaintiff is not relieved from the general obligation to mitigate loss and to avoid unnecessary costs and extravagance. In some cases of minor residual injuries, sensible rearrangements in the home will be reasonably expected and will relieve the wrongdoer from liability. In Griffiths v. Griffiths v. Kerkemeyer Stephen J (ibid, 175) suggested that the would have the task of 'persuading the court' that the charitable subvention of services should be debited against the plaintiff to reduce or extinguish this otherwise established entitlement to damages. He said that this task would be a 'difficult one'. The notion that the defendant bears an onus, whether in a strict legal sense or an evidentiary onus, was suggested by Samuels JA in in Kovac v. Kovac & Anor (1982) 1 NSWLR 656,669.

(4) The calculation of compensation with reference to charges made for the supply of services on a commercial basis may not always be appropriate. The plaintiff must mitigate his damage (see Gibbs J, Griffiths v. Kerkemeyer, ibid, 164). Services provided by relatives and friends may not be exactly the same as those provided by commercial agencies. The latter will also necessarily have an element of profit in their charges. On the other hand, the former may provide services in a more cost-effective, intensive and prolonged manner, thereby reducing the pain, suffering and general damages of the accident victim.

(5) The compensation awarded, though referable to the activities of others, is not strictly compensation for them. It must be for the need to look after the plaintiff himself, not the need to look after others. This point was made by Mahoney JA in Burnicle v. Cutelli (1982) 2 NSWLR 26,37. In that case, the majority (Reynolds and Mahoney JA) disallowed the inclusion in the damages of amounts in respect of the plaintiff's need to look to her daughter to satisfy duties of the plaintiff's husband, son and other daughter, formerly performed by her but after the accident performed by the Such an entitlement was said to be an unacceptable extension of the principle in Griffiths v. Kerkemeyer.

(6) Any award that is made is subject to the over-riding reuirement that the component attributable to Griffiths v. Kerkemeyer will be scrutinised against the test that the total verdict must be reasonably proportionate to the magnitude of the loss suffered by the plaintiff. This requires allowance to be made for the ordinary vicissitudes of life and the inevitable uncertainty of calculating damages which have a component referable to the future. But it also requires that regard should be had to the over-riding principle of reasonableness governing assessment of damages at large. See Samuels JA in Kovac v. Kovac, ibid, 669.

(7) It now seems clear that interest is not payable on the component of the verdict calculated under this head of damages. Glass JA has explained this rule on the ground that the plaintiff, not being out of pocket, cannot claim interest any more than he could claim such interest on unpaid medical accounts. See Glass JA in Burnicle v. Cutelli (1982) 2 NSWLR 26, 30 applying Settree v. Roberts (1982) 1 NSWLR 649. Subsection 53A(1) of the Australian Capital Territory Supreme Court Act 1933 as amended by s 17 of the Statute Law (Miscellaneous Amendments) Act No 176 of 1981 provides for the payment of interest to be included in a sum for which judgment is given in the Supreme Court of the Australian Capital Territory. Subsection 53A(2) provides that the amendment made by subsection 53A(1) does not apply to proceedings initiated before the commencement of the section. The actions giving rise to this appeal were instituted by writs of summons issued on 4 June 1981. Accordingly, apart from the authorities on the payment of interest on the component of the verdict attributable to gratuitous services, no interest is payable in the present matters by reasons of statute. No interest was ordered to be paid.

(8) The distinction has been drawn between gratuitous and benevolent services offered by relatives and friends (in respect of which compensation may be recovered) and such services offered free of charge by the State (where it may not). See Gibbs J, Griffiths v. Kerkemeyer,. ibid, 165, 169. Although such services offered by the State may equally evidence a loss of the capacity for which compensation is essentically paid, a distinction has been drawn on 'strong grounds of policy' between services offered by the State to everyone and those that result from sacrifices made by relatives and friends. Only the latter are compensable under the Griffiths v. Kerkemeyer rule.

Reorganisation of 'family chores'

It was urged that a further principle for the limitation of the Griffiths v. Kerkemeyer rule has lately come to be accepted by the Court of Appeal of New South Wales. This new principle is said to originate in certain observations made in the decision of that Court in Johnson v. Kelemic (1979) FLC (p 90-657. That was a most unusual case in which compensation was claimed for additional losses consequent upon a supervening whiplash injury as it affected a woman already rendered quadraplegic in an earlier accident not the subject of a claim. The difficulties in that case of sorting out the additional necessities of providing services to the wife were remarked upon by all three judges (Reynolds, Samuels and Mahoney JJA). Furthermore, in that case, the wife did not attempt to make out a claim based on the principle declared in Griffiths v. Kerkemeyer, possibly because that decision had then only lately been handed down by the High Court.

The view that Griffiths v. Kerkemeyer should be confined in circumstances of domestic rearrangement was expressed by Reynolds JA and Mahoney JA in Burnicle v. Cutelli (above). Acknowledging that an injured plaintiff who had lost part of a capacity to do housework, the exercise of which gave her pride and satisfaction, was entitled to an award of general damages, Reynolds JA rejected the contention that Griffiths v. Kerkemeyer required or allowed the quantification of the loss of capacity by reference to the value of the service provided by a third party:

To quantify the injured housewife's loss of capacity to perform the work voluntarily for the benefit of others by the measure of the value of those services if performed by a third party may be a convenient and simple way to do so, but it does not seem to accord with established principles or to be a satisfactory way of assessing what is reasonable. The Pearson Report suggested that such value or cost may provide a useful guide. Brandon J at first instance in Daly's case (1981) 1 WLR 120 (CA)thought that it was one way of measuring the loss. With the greatest respect, I am unable to see how it can be measured that way or that it does provide a useful guide (ibid,29).

Reynolds JA felt that the amount of damages awarded in that case were adequate to comprehend the plaintiff's partial loss of capacity to render voluntary service to others. Mahoney JA agreed. It was stressed that the Griffiths v. Kerkemeyer principle was 'an exception to the traditional basis for an award of damages' (ibid, 37). The public policy which had led to the decision did not require the injured woman in that case to be compensated'because others have lost the benefit of the services she would have provided to them'. Mahoney JA referred to what he had said in Kovac v. Kovac (above, 672ff). In that case at 674 his Honour had mentioned that, since Griffiths v Kerkemeyer, the amounts awarded for housekeeping care, by reference to the case, had 'become increasingly large'. Acknowledging that the decision, like Donnelly v. Jones, represented a 'change in approach' and that the duty of courts in Australia was to apply Griffiths v. Kerkemeyer, Mahoney JA pointed to an 'apparent anomaly' in the principle. The plaintiff does not suffer the difficulties (because they have been obviated by the gratuitous services); but nor does he pay out the cost of the services (because they have been provided gratuitously). Nevertheless, his damages include what he would have paid out and hence he has a net financial benefit. According to Mahoney JA this 'is overcompensation, in the sense that he receives more than, in difficulties or in costs, he has lost' (ibid, 677).

These observations led Mahoney JA back to the principle of the 'sense of outrage' which initially produced the line of authority culminating in Griffiths v. Kerkemeyer. If a husband, whose wife had previously prepared his meals, was even more dependent for those services on his wife after an injury, it would not be outrageous to award no compensation for such continuing domestic services. It would be otherwise, if significant rearrangement of the housekeeping were required, as where a wife had performed such duties which subsequently had to be performed by the husband.

The Court was referred to a decision of the Court of Appeal of the Supreme Court of New South Wales in Keeley v. Jones (1979) 1 NSWLR 723 in which Hutley JA suggested that the award of monetary compensation to a husband for a small increase in the amount of work he was required to perform in the home would be to disregard the realities of the Australian domestic scene. It was suggested that regard should be had to the 'public mores in Australia'. Where a husband and wife were 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' (ibid, 741). However, although reported in 1979 this case was determined in September 1976 before the High Court had declared the Australian law on compensation in respect of the need evidenced by gratuitous services, whether provided by husband, wife, friend or otherwise in Griffiths v. Kerkemeyer.

In 1980 the issue of the compensability of the cost of household assistance came before the Full Court of this Court in Cummings v. Canberra Theatre Trust (unreported, 18 June 1980). In that case, the Court (Brennan, McGregor and Fisher JJ) agreed in the result. In a joint judgment, Brennan and Fisher JJconsidered the principle in Griffiths v. Kerkemeyer and suggested how the principle should be applied. The case involved a claim for the cost of employing a domestic servant. It was accepted that the plaintiff was very significantly affected in the performance of her household duties. She needed assistance and it was found that she had paid for such assistance out of housekeeping given to her by her husband. Brennan and Fisher JJ stressed that the loss to be compensated under Griffiths v. Kerkemeyer was 'the loss by the appellant of her capacity to do the housework, for that was the loss which produced the need for domestic assistance' (ibid, Brennan and Fisher JJ, 11). After referring to Johnson v. Kelemic and Kovac v. Kovac, a distinction was drawn by their Honours between services gratuitously provided, such as moving the injured person during the night and the instant case where external services were not only obtained but actually paid for. After referring to Kovac v. Kovac and Griffiths v. Kerkemeyer, Brennan and Fisher JJ said that they could see no relevant distinction in the case before them from the principles expressed by the High Court. They said:

Where, according to the practice of a family of which the plaintiff is a member, the plaintiff performs particular domestic chores and is disabled from continuing them by the conduct of a tortfeasor, that incapacity is a loss suffered by the plaintiff and, subject to what was said in Griffiths v. Kerkemeyer, supra, as to the benefit of subventions received from third parties, the cost of providing the services which are needed because of the incapacity should be borne by the tortfeasor. This is not a case where there was a rearrangement of domestic chores consequent upon an injury, and the events which occurred after the accident showed that it was reasonably necessary to provide the requisite services at a cost. There was no suggestion made that the payment of the cost by the appellant's husband goes to the relief of the tortfeasor. Indeed, the inference is open to be drawn that if the husband had not paid for them, the appellant would herself have paid for them out of her earnings. In our opinion, the trial judge should have made an award on this aspect of the appellant's claim.

Although the decision in Cummings v. Canberra Theatre Trust is referred to in the judgments of Reynolds and Mahoney JJA in Burnicle v. Cutelli (above) the decision is not discussed by their Honours. Only Glass JA, who took a somewhat different view to Reynolds and Mahoney JJA, referred to the decision at any length. He adopted the view stated in it by Brennan and Fisher JJ and said:

I would adopt with respect the view of the Federal Court that expense incurred by anyone in the provision of domestic services can be recovered by the plaintiff since to disallow the claim will go in relief of the tortfeasor. But where the services have been and will be gratuitously provided, recovery also depends upon proof that it was reasonably necessary to procure the services at a cost and therefore that it is reasonable to charge the cost of the gratuitous service to the tortfeasor. The answer to that question will, of course, be governed by the need of the plaintiff, the character of the services, the level of the intensity at which they are provided, the person who provides them and such questions (ibid, 35).

There is nothing in the reported decision in States other than New South Wales that lend support to the notion that the principle in Griffiths v. Kerkemeyer is to be read down to exclude, as if in a special category, gratuitous domestic assistance provided by family or friends to the victim of an injury. See eg O'Keefe v. Schluter (1979) Qd R 224; Wallington v. State Electricity Commission of Victoria (1979) VR 115; Richardson v. Schultz (1980) 25 SASR 1, 23, 24. It is the duty of this Court to apply the principle stated in Griffiths v. Kerkemeyer. Insofar as there is any suggested modification of that principle evidenced in judgments of the Court of Appeal of the Supreme Court of New South Wales, it does not appear to be a unanimous view in that Court as the judgment of Glass JA (above) illustrates. Nor is it a view that appears to accord with the approach taken by the Full Court of the Federal Court on the only occasion in which this issue has been considered, namely in Cummings v. Canberra Theatre Trust. In any case, it is possible to read at least some of the judgments in the Court of Appeal of New South Wales as going no further than to stress the fact that, as Gibbs J pointed out in Griffiths v. Kerkemeyer, there must be established a necessity to provide the service. It must be a necessity for the injured party. And because it 'would be reasonably necessary to do so at a cost', the services must go beyond those of minor changes of domestic routine or attentive care that can be expected of loving relatives and friends.

Wife's verdict

Against this discussion of the 'exceptional' principle in Griffiths v. Kerkemeyer and the cases since, it is necessary now to turn back to what was done in the present case and to consider this appeal in the light of the principles governing this Court in reviewing an appeal against a damages verdict.

No dispute, or no appealable dispute, arises in relation to the component totalling $9,907, being for loss of wages, sick days, early retirement, out-of-pocket and future medication. Nor, in the light of the evidence of prolonged and continuing pain, discomfort and inconvenience and interference in sexual relations, can the award of $17,5000 for general damages be challenged. The defendant, however, challenges the components respectively of $15,000 and $23,500 for past and future domestic care provided by the husband. The defendant contends that no component should have been so allowed following Griffiths v. Kerkemeyer because the plaintiff had not established by evidence the need for such services or because, if there was a need, the loss should be assessed as part of general damages and not measured by the value of the services as performed by a third party. Specifically, it was contended that the services were not reasonably needed 'at a cost'. The defendant contended that, at the very least, part of the services being rendered by the husband were being rendered for his own benefit so should not be allowed to that extent. The defendant also contended that the reorganisation of 'family chores' did not give rise to the application of the principle in Griffiths v. Kerkemeyer.

Kelly J accepted both the husband and wife as truthful witnesses. It was open to him on the evidence to accept that the plaintiff had received a painful whiplash injury which made it difficult for her to perform many work and domestic duties. The combination of the evidence of the husband and the wife, together with the medical evidence and the acceptance of the truthfulness of the two plaintiffs, renders the defendant's first contention hopeless. It was clearly open to Kelly J to hold, as he did, that the husband spent a total of 15 hours a week doing work that was previously done by the wife about the house and that he did so by reason of injuries she had suffered and their consequences. Indeed, upon the evidence proved and scarcely challenged at the trial, no other finding would have been reasonably open to His Honour.

The question remains whether, even if it were reasonably necessary to provide the services, it would be reasonably necessary to do so 'at a cost'. This was not a case as in Cummings v. Canberra Theatre Trust where monies were actually expended on domestic assistance. But that is only because the husband, at some inconvenience, rearranged his life to provide the services himself. Having regard to the extent of the injuries, the painful nature of them and their persistence, the fact that they incapacitated the wife from work and the inference that they incapacitated her from performing heavy domestic duties, it was clearly open to Kelly J to conclude that but for the gratuitous intervention of the husband, it would have been reasonably necessary to secure domestic assistance at a cost. The husband continues to work. Somebody must perform the domestic duties. To the date of the trial they were performed by the husband. This is precisely the case in which Griffiths v. Kerkemeyer suggested that the sense of justice of the ordinary person would be shocked if no compensation were recovered in respect of the proved need. Had the wife secured paid domestic assistance, there is little doubt that the defendant, on the accepted medical and lay evidence, would have conceded the obligation to pay for it. This is the very inconsistency which Griffiths v. Kerkemeyer aimed to remove from the law.

As to the contention that the services rendered by the husband should not be allowed 'at market price', it does appear that Kelly J took this principle into account. First, he had regard to the commercial costs of providing the domestic service, as proved by the tender of the charges made by the ACT Emergency Housekeeper and Home Help Service Inc. It is notable that this document was admitted into evidence without objection on the part of the defendant. He did not exceed the costs of the commercial charge but merely referred to them as a guide to the assessment of the proper value of the services. See Mason J in Griffiths v. Kerkemeyer, above, 187. He then reduced the resulting calculation ($15,892.50) to a round sum of $15,000. The total verdict he also reduced by a further $1,500, although it was suggested that this further reduction might have been a mathematical error. Certainly, in the result, the figure was discounted.

Although it is true, as the defendant contends, that the services of a domestic nature rendered by the husband were partly for his own benefit and only partly for the benefit of the injured wife, it is difficult to disentangle the domestic duties he performed. Somebody had to clean the house and cook the meals. Whilst allowance may be made for the fact that some ironing, washing and other duties were not specifically for the wife's needs, these must be considered marginal. The basic need to perform the domestic duties which the wife, on the evidence, so enjoyed before the injury, arose as a result of the disabilities that followed it.

Insofar as the defendant's contention is that reorganisation of 'family chores' does not of its nature give rise to damages of the type discussed in Griffiths v. Kerkemeyer, this is inconsistent with the principle that underlies that decision and with the decision of the majority of this Court in Cummings v. Canberra Theatre Trust. Insofar as there are expressions of view to the contrary in the Court of Appeal of the Supreme Court of New South Wales, this Court should follow its own decision, should prefer the dissenting view in the Court of Appeal of Glass JA and should apply, without further limitation, the principle in Griffiths v. Kerkemeyer.

It is true, as the defendant contends, that care must be taken not to regard compensation in cases such as the present as a simple exercise of calculating, as in special damages, the equivalent cost of commercial domestic services. What is being compensated for is the need amounting to a loss of a capacity. But it is clear from a reading of Kelly J's judgment that he had this distinction in mind. It is also clear that he took pains to ensure against double compensation both in respect of loss of capacity sounding in domestic assistance and pain and suffering resulting from the deprivation of the satisfaction that had previously attended the performance of household duties. Furthermore, His Honour was also at pains to avoid double compensation for the efforts of the husband both in the wife's claim and in the husband's own claim for loss of consortium.

There remains the allowance for the loss of domestic capacity in the future. As stated above, the period of five years of continuing disability accepted by Kelly J for the purpose of his assessment, was open on the evidence. Indeed, insofar as a fixed period of five years was mentioned, it related not to disability but to the continuance of headaches. This seems to have been recognised by Kelly J in his statement that the condition of the wife 'may extend beyond the period of five years which I have considered to be likely'. The defendant argued that five years was a maximum and that allowance should be made for the remission that would attend retirement and for the gradual improvement prognosticated by the medical evidence. It does appear that His Honour approached the matter on the basis that continuing assistance would be needed by the husband. Such a finding was clearly open to him. But the five year period mentioned by Kelly J represented a compromise between the various strands in the medical evidence. Taking that evidence on the basis most favourable to the wife, it was open to Kelly J to make allowance for 'physical and emotional incapacity for at least several years' (Dr Knox) or even for a poor prognosis in which it was quite likely that her symptoms would not improve (Dr Danta). In these circumstances, it would have been open to Kelly J, in fixing the compromise period of five years, to take into account, as plainly he did, the possibility that this would prove an under-estimate.

Accordingly, although the allowance of $23,000 for loss of capacity requiring future domestic assistance seems high, regard must be had to the fact that it has been calculated on a basis that takes into account the possibility that the disability will last longer and could even prove permanent.

It must be stressed that on the evidence this was not a case of minor changes in the domestic habits of husband and wife. It was a case of significant dislocation of the settled pattern of their married relationship. It involved some inconvenience to the husband. It was not simply a matter of turning the pillows or an occasional friendly act. Nor was it a case of a member of the family stepping in to assist a large family unit. Here, the needs were the commingled needs of husband and wife, but no less the needs of the wife because they were in some cases mutual.

Although an appeal court might conclude that the sum awarded is high, even very high as it was in this case, the proper bases for interference, and the substitution of a fresh assessment, are those stated above. There was no misapprehension of the facts in this case. So far as the principles of law are concerned, his Honour carefully applied the decision in Griffiths v. Kerkemeyer. The final question remains whether the resulting verdict in the wife's case one which is 'wholly erroneous' , 'out of all reason' or 'wholly disproportionate to the circumstances' Cf Gamber v. Nominal Defendant (above).

Two additional considerations should be taken into account in answering this question. The first is that even if the allowance for loss of domestic capacity in the future were thought to be too high and should be reduced, there would be a necessity to increase, even if not proportionately, the other general damages component of the verdict. Thus, although the amount for general damages ($17 500) is already quite high, it was open to His Honour to make a high award on the basis of the evidence concerning the painful nature of the wife's disabilities and the interference in her sexual relations with her husband. If the sums for loss of capacity in terms of domestic assistance, past and future, were reduced, it would clearly be necessary to allow the wife compensation under the head of general damages for a disruption of her domestic life. In the circumstances proved, namely that she was a house-proud woman, used to and enjoying her domestic duties, this sum could be a substantial one. Courts have often put a small money value on the damages for loss of this satisfaction. But for a woman of the proved disposition and background of the wife in this case, such a dislocation would be a major disruptive consequence of the injuries she sustained. One way or the other, then, the allowance for this relocation of domestic duties would be a significant one.

The husband's claim

The second consideration relates to the husband's claim for loss of consortium. The husband has appealed, contending that the damages allowed for loss of consortium ($12 500) were inadequate. He too suffered serious disruption of his sexual relationship with his wife for which he is entitled to compensation. Kelly J was careful not to compensate him in his action for the work he had done for his wife and for which allowance had already been made in the wife's case. He said that though the wife did not hold the money in trust for him, but in respect of her own loss of capacity, 'regard may well be paid by her in token of her wifely affection to the husband for the work he has done on her behalf during the years and which he may be expected to perform over the years'. It was made clear by the Appellant's counsel that, so far as they were concerned, no fine distinctions were made between their verdicts. The appeal by the husband was brought defensively.

If, as the defendant contended, the loss and inconvenience suffered by the husband should form compensation in his action for loss of consortium by way of general damages, again the transfer of part of the compensation to the husband's verdict would not avail the defendant in the aggregate amount payable. The two cases were heard together at first instance and on appeal. The only relevance, in practical terms , of a reassignment of part of the verdict would be a possible relevance as to costs. The contention that compensation in respect of the gratuitous services is payable only in the husband's action as part of general damages depends on certain observations in Kealley v. Jones (above). But that decision preceded Griffiths v. Kerkemeyer. There may be reasons of policy for resisting the suggestion that gratuitous services in a domestic situation should be pursued, if at all, in the action for loss of consortium. First, it ignores the new authority, clearly laid down in Griffiths v. Kerkemeyer. Secondly, it ignores the principle of compensating the injured victim for a loss of capacity for which reference to gratuitous services is simply used as evidence. Thirdly, the action for loss of consortium is in many respects anomalous. It has been criticised, including recently and in Australia (see eg Samuels JA in Kealley v. Jones (above, 744)) as 'archaic'. It is anomalous in that it denies recovery to a wife or indeed others. (Best v. Samuel Fox & Co Limited (1952) AC 716). Because of 'judicial distaste' for the action, the damages recovered in such actions have tended to be consequentially restricted. It seems too late now to breathe life into this legal antiquity as a vehicle for compensating the wide range of persons who offer gratuitous assistance to modern accident victims and who are now within the protection of the rule in Griffiths v. Kerkemeyer. But in the present case, from the comparatively short list of recently published decisions involving loss of consortium awards placed before the Court, it seems appropriate to say that the award given by Kelly J in the husband's case was not, on the evidence before him, particularly generous. Certainly His Honour was conscious of the need to avoid double payment for the domestic services provided by the husband, for he so expressed himself, in terms. In the light of the decision foreshadowed in respect of the wife's appeal, and in the light of the way the appeal in the husband's case was conducted, it is not necessary to explore at length the principles of damages in cases for loss of consortium. Suffice to say, however, that it is possible that the verdict in the husband's case could have been marginally increased, in reflection of any reduction of the allowance in the wife's verdict for the loss of capacity to perform domestic duties. Whether the husband's efforts merely provide the means to measure the wife's need amounting to her loss of capacity compensable in her case or a separate head of loss compensable in his case for loss of consortium, is not a matter that it is necessary to determine in this appeal. There is no overlap or double accounting between the two verdicts.

Conclusions and costs

The conclusions may, thus, be briefly stated. No appealable error has been established in this case. Kelly J did not have the benefit, as this Court has, of the careful analysis of Griffiths v. Kerkemeyer and the cases since. Some of the observations in the Court of Appeal of the Supreme Court of New South Wales evidence an attempted retreat from some of the implications of Griffiths v. Kerkemeyer. True it is, the decision introduces a new and, in some ways, an anomalous principle for compensation in actions of tort in Australia. On the other hand, there are important public policies which support the principle. However that may be, until the principle is modified by legislation or qualified by the High Court, it is the duty of this Court to apply it. Kelly J endeavoured to apply it in the wife's case, now appealed by the defendant. On the evidence before him and accepted by him and on the findings he made, it was open to Kelly J to conclude that the undoubted loss of capacity suffered by the wife and reflected in the gratuitous services of her husband could best be measured by reference to something less than the commercial cost of supplying equivalent domestic services. He did not exceed those costs. Indeed, he discounted them, as he discounted the whole verdict by reference, presumably, to an overriding principle of reasonableness. He made no allowance for interest but none was provided for by law. There was no component for gratuitous services provided by the State. It was open to him to find that gratuitous services offered by the husband were reasonably necessary as a result of the wife's disabilities consequent upon the injury and not a minor rearrangement of domestic chores nor the tender affections that are a commonplace within a family. No reason was established by the defendant at the trial, nor was any reason offered on appeal, why the defendant should have the benefit of these gratuitous services. It was not as if the husband was, in the circumstances of this case, offering services gratuitously as a benefit of the defendant motorist. If there is an onus of a legal or evidentiary kind on the defendant in this regard, it was certainly not discharged. True it is, part of the needs met by the husband were for himself. But in such a small domestic unit, somebody had to do the work which the wife could not do and the activities solely referable to the husband's needs can be taken to be negligible.

Although the sum awarded for loss of domestic capacity is very nearly the highest amount that could have been allowed in this case, Kelly J had the advantage of seeing both husband and wife and assessing both the extent of the wife's disabilities and their likely duration. Even if the award for loss of domestic capacity were to be reduced, there would have to be some increase in the wife's award for general damages, to compensate. In all of the circumstances, although the verdict is high, indeed very high, it is not so high that it can be said to be 'wholly erroneous', 'out of all reason' or 'wholly disproportionate to the circumstances', so that this Court should interfere.

In the wife's case, the appeal of the defendant should be dismissed with costs. In the husband's case, the appeal should also be dismissed. However, as no significant additional time was taken in argument and as the husband's appeal was brought largely as a defensive measure, following the appeal by the defendant in the wife's case, it is appropriate that there should be no order as to costs.

ORDERS

In the appeal Janelle Maree Hodges and Brenda Frost (No ACT G 89 of 1983), appeal dismissed with costs.

In the appeal James Keith Frost and Janelle Maree Hodges, appeal dismissed. No order as to costs.