Inghams Enterprises Pty Ltd v Karanfilov

[2004] HCATrans 231

[2004] HCATrans 231

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B44 of 2003

B e t w e e n -

INGHAMS ENTERPRISES PTY LTD

Applicant

and

ZAKLINA KARANFILOV

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 23 JUNE 2004, AT 11.04 AM

Copyright in the High Court of Australia

MR P.A. KEANE, QC:   May it please the Court, I appear with my learned friend, MS R.M. TRESTON, for the applicant.  (instructed by Bruce Thomas)

MR W.D.P. CAMPBELL:   May it please the Court, I appear with my learned friend, MR F.H. DAWSON, for the respondent.  (instructed by Sciacca’s Lawyers)

GLEESON CJ:   Yes, Mr Keane.

MR KEANE:   Your Honours will see the section of the Act, the construction of which is in issue, at page 47 of the record in paragraph 6, if I could ask your Honours to go ‑ ‑ ‑

GLEESON CJ:   Am I right in thinking that this legislation, after being interpreted by the Queensland Court of Appeal, was then re-enacted by the Queensland Parliament?

MR KEANE:   It was, your Honour.  It was re-enacted within a matter of ‑ ‑ ‑

GLEESON CJ:   Well, I am sure the Queensland Parliament was very well advised.

MR KEANE:   Our learned friends make a point about that, your Honour, and we say perhaps they attribute a rapid reaction capacity that is a little optimistic, particularly in relation to legislation like this.  Indeed, the reason for the application is to seek to obtain the most authoritative statement of its proper construction.  Your Honours see the text at paragraph [6] at page 47.  We note that his Honour Justice Jerrard in the Court of Appeal at page 49 in the first sentence in paragraph [17] said:

The basic intent in enacting s 315 is obvious from its terms.  Damages are not to be awarded for the past or future provision of gratuitous services ordinarily provided to a claimant by family or household members.

Having had that appreciation of the intent of the Act, his Honour was persuaded or dissuaded from giving effect to its obvious intent by two considerations.  The first is the example that his Honour refers to at paragraph [14] beginning at the bottom of page 48, that is to say, the example of a case where some services are provided prior to trial, the service provider, being a spouse, is injured and cannot provide them any more.  Does that mean that future services cannot be compensated for or the cost of future services cannot be compensated for?

The other consideration that weighed with his Honour was the examination of the text, which his Honour sets out in paragraphs [17] and [18] at page 49 and, in particular, the point his Honour makes in paragraph [17], that:

The appellant would have a strong argument if the words in 315(c) themselves formed part of 315(b), or qualified only the “services of a kind” described in (b), but that is not how the section is drafted.  The words in (c) qualify the “services of any kind” in the introductory phrase in the section, and not just those in (b).

Justice White expressed similar views at paragraph [52], pages 57 to 58.  Your Honours, if we might say so with the greatest respect, if one reads section 315, not perhaps astute to deny its evident intent but, as it were, reddendo singula singulis, the problems identified by Justice Jerrard and Justice White do seem to disappear, in our respectful submission. 

Reading the section, as we say, reddendo singula singulis, one can see that subsection (a) is concerned to provide that the prohibition on the award of damages for the value of services of any kind that have been provided is to be applied both to services rendered prior to and after, that is to say, “are to be” provided in the future, that is to say, after trial.  So it is fixing the scope of the application of the prohibition.  It is not describing the particular kinds of services that are subject to it.  That work is done in (b) and (c).  So we submit (c) really does belong rather naturally with (b).  So far as services prior to trial are concerned, (b) and (c) together say that within the prohibition services of a kind that have been provided by a member of the worker’s family or household and for which the worker is not liable to pay, and so far as ‑ ‑ ‑

GLEESON CJ:   Just pausing there about for workers not liable to pay, we are here concerned, are we not, with the value of future “professional services”, to pick up an expression used in the reasons, for which the worker will be liable to pay?

MR KEANE:   We are and the point, your Honour, is that that is actually the point of (c), in our respectful submission, because it says so far as, we submit, services that are services that would ordinarily be provided to the worker by a member of the worker’s household and would ordinarily not be liable to pay, it is distinctly contemplating the possibility that the worker will be liable to pay for them.  That is why it speaks of the ordinary case, as opposed to services for which the worker will or will not be liable to pay.

GLEESON CJ:   I thought this was to do with Griffiths v Kerkemeyer damages in situations where unpaid services are being provided, but valued, and it is eliminating that.

MR KEANE:   Yes.

GLEESON CJ:   But this case is not about unpaid services, is it?

MR KEANE:   Well, it is about services that would be unpaid were it not for the fact of the award of damages.  That is the mischief in our ‑ ‑ ‑

GLEESON CJ:   Well, is there a finding of fact that if no damages were awarded, the family member would continue to provide these services without pay?

MR KEANE:   In effect, yes.

GLEESON CJ:   Where do we find that?

MR KEANE:   Your Honours, at page 23 of the record, in paragraphs [75] and [76] and, in particular, in [76] where:

Mr Karanfilov gave evidence that if Mrs Karanfilov is successful in the litigation, he will return to work as they would be able to pay someone to come in and do the domestic tasks formerly done by her which he has attended to.

So that it is because of that ‑ ‑ ‑

GLEESON CJ:   But it is not the purpose of this legislation, is it, to force the husband to give up work to look after his wife?

MR KEANE:   No, it is to cast the burden of providing for household services on the family where the family would ordinarily, in the absence of an award of damages, bear that burden.  The mischief, and we say that with respect, of the result ‑ ‑ ‑

GLEESON CJ:   Then it must be the purpose of this legislation in a case like the present to force the husband to give up work and spend his time caring for his wife.

MR KEANE:   Not to give up work, your Honour, simply to bear the cost of doing it, because it says if the services would ordinarily be provided by a member of the household and would ordinarily not be paid for, then there shall not be an award of damages in respect of them.

GLEESON CJ:   Well, the services would not ordinarily be provided at all.  It is because of the accident that the services are provided. 

MR KEANE:   That is right.

GLEESON CJ:   A wife is injured.  She requires care for the future.  Are you saying that ordinarily in our society the husband would give up work and devote himself to the care of his wife?

MR KEANE:   No, your Honour.  We are simply saying that insofar as costs will be incurred, insofar as the past is concerned, insofar as they have been provided for and have not been paid for, you get no damages; insofar as the future is concerned, insofar as they are to be or would ordinarily be provided by a member of the household and would not be paid for ‑ ‑ ‑

GLEESON CJ:   If you looked at this as a matter of legislative policy, this is the problem that the legislature would have to face up to if it wanted to amend this legislation to overcome the effect of the decision in question.  Parliament would then have to ask itself whether it really intended to produce the result, not only that it does away with Griffiths v Kerkemeyer awards, but that husbands, spouses, do not return to work and engage paid nursing or caring assistance for an injured spouse.

MR KEANE:   Your Honour, we would submit that before Parliament needs to make that choice the question is whether the problem identified in paragraph [10] at page 48 of his Honour’s reasons, which is that the evident intent of the Act that services that are ordinarily provided gratuitously shall not be the subject of an award of damages, whether the evident intent can be defeated by a decision that the services will not be rendered gratuitously because of the award of damages.  Because I am getting an award of damages, I am no longer going to provide the services gratuitously.

GLEESON CJ:   A lot turns on this word “ordinarily”, does it not, and what it means in this context?

MR KEANE:   It does, your Honour.  As to that, our submission is that Justice White suggested “ordinarily” means ordinarily in the sense of but for the accident.  We submit, with respect, that cannot be right because the section contemplates and operates on the footing that the accident has occurred and the services are to be provided.  We submit that “ordinarily” means ordinarily within the circumstances of the household, absent the award of damages. 

We say that because the section assumes that damages will be awarded by reference to the ordinary situation.  In other words, the award of damages assumes the ordinary situation.  The award of damages is not an element of the ordinary situation.  It does seem to us, with respect, that his Honour Justice Jerrard recognised that in paragraph [10] at page 48.  But having recognised that, the decision does not give effect to that proposition and we submit that the circumstance that sections 315(b) and (c) refer to what would ordinarily be the case in respect of future care is a clear indication that the section is intended to apply where future care will be paid for but would not ordinarily be so.

Your Honours, we submit that that view is a view that is fairly arguable.  It is, indeed, as Justice Jerrard appreciated at paragraph [17], the evident intent of the Act and it is one that is important in the sense that this section affects many and, indeed, no doubt most ‑ ‑ ‑

GLEESON CJ:   Where is that statement again – you began with it, I know – about the evident intent of the Act?

MR KEANE:   At paragraph [17], your Honour, page 49:

The basic intent in enacting s 315 is obvious from its terms.  Damages are not to be awarded for the past or future provision of gratuitous services ordinarily provided to a claimant by family or household members.

GLEESON CJ:   If you had to construe that sentence as distinct from the legislation, it itself would raise some questions, would it not, in particular, what you mean by this expression “ordinarily provided”?

MR KEANE:   Well, quite, your Honour, but as his Honour appreciates – and we have referred your Honours to paragraph [10] and the finding of fact that was made in the case – the only circumstance that denies that this is a situation of services ordinarily provided or ordinarily unpaid for is the circumstance that there is an award of damages.  In our respectful submission, whatever else it means, it certainly does not include that element.

GLEESON CJ:   So the result in the present case would have been different if the husband had had sufficient independent means to say, “I am going to engage professional services for the future, regardless of whether I get an award of damages”?

MR KEANE:   No, your Honour.  In that case, the ordinary circumstances of the family independent of the award of damages would have been that the services were paid for.

GLEESON CJ:   Yes.  So, in that respect, the damages to which a wealthy husband would be entitled would be greater than the damages to which a poor husband would be entitled.

MR KEANE:   That is right.  That is a result, but it is a result that occurs because of the circumstances of the family.

GLEESON CJ:   It would have been an interesting question for the legislature to face up to too, if it decided to amend ‑ ‑ ‑

MR KEANE:   Well, your Honour, as we say and we submit with respect, the first question is the authoritative determination of the provision.  If it please the Court.

GLEESON CJ:   Thank you, Mr Keane.  Yes, Mr Campbell.  Just remind us of the dates, will you?  This decision was given on 6 June 2003.  When was the legislation re-enacted?

MR CAMPBELL:   1 July 2003.  The primary judge decision had been given on 20 May 2002, more than a year before the Court of Appeal decision as well.

GLEESON CJ:   …..Mr Keane, I can think of some very interesting issues that Parliament would have to face up to if it decided to amend the legislation to overturn this decision.

MR CAMPBELL:   Yes, your Honour.  Your Honour, I should also say that our researches have not shown any District Court or Supreme Court decision where this case has been applied to enable damages to be recovered for paid future care.  So it is a decision that, whilst on its face is said to have been an important one, has not been applied since in Queensland in the last two years.

GLEESON CJ:   Why not?

MR CAMPBELL:   It appears there has been no case where the rather unique facts of this case have arisen, that is, where a finding of fact was made that the injury was so severe that the husband was forced to give up his job and was accepted that if – and it was not just a question of if the damages are sufficient, but if the plaintiff won the case on liability and damages were recovered, he would then be able to afford to go back to work again, which his evidence was he wanted to do.  He really did not want to be home rendering domestic‑type services.  So the findings of facts in this case were all important.

It is suggested that perhaps there might be sham arrangements entered into, that every injured worker would say, “My spouse, if I recover, will go back to work and we will pay somebody to come in and do domestic‑type services to help me”.  But, of course, that in every case would be up for a decision by the court as to whether that is a truthful assertion or not.  In this case it was up for debate and her Honour accepted that this plaintiff’s spouse would, in fact, return to work and pay somebody if the plaintiff won.  The plaintiff, of course, was a person on social security at the time of the trial, as was her spouse. 

GLEESON CJ:   Is there legislation like this in other States?

MR CAMPBELL:   There is no comparable provision in any other State.  I suppose the other more important point is four judges have now looked at it and are unanimous in their construction of the provision.

GLEESON CJ:   Yes, thank you.  Yes, Mr Keane.

MR KEANE:   Your Honours, the only thing to say in reply is that whether or not a party gives up work, the situation of which this Act speaks is a situation where – and where the case is important, is a situation where services have been provided unpaid, would ordinarily continue to be so, but because of the award of damages the plaintiff can choose to increase the award of damages by deciding to take paid rather than unpaid services that would ordinarily be provided by the family member.  That is distinctly the policy of which the section is directed.

GLEESON CJ:   The issue in this case concerns the interpretation of legislation, which we are informed does not exist in any State other than Queensland.  The legislation since being interpreted by a unanimous decision of the Court of Appeal of Queensland which in turn upheld a decision of a primary judge has been re-enacted by the Queensland Parliament.  We are of the view that the interpretation placed on the legislation by the Queensland Court of Appeal is not attended by sufficient doubt in those circumstances to warrant a grant of special leave to appeal.  The application is refused with costs.

AT 11.23 AM THE MATTER WAS CONCLUDED