Nguyen & Anor v Nguyen

[1989] HCATrans 144

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No Bl3 of 1989

B e t w e e n -

HIEN VAN NGUYEN,

TRONG HIED NGUYEN by his next

friend HIEN VAN NGUYEN,

THI KIM LAN NGUYEN by her

next friend HIEN VAfT, NGUYE~T,

Appellants

and

THANG VAN NGUYEN

Respondent

BRENNAN J
DEANE J

DAWSON J

TOOHEY J

McHUGH J

Nguyen(2)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 27 JUNE 1989, AT 12.37 PM

Copyright in the High Court of Australia

BlT9/l/SH 1 27/6/89

MR C.G.S.L. JENSEN:  May it please the Court, I appear for

the appellants. (instructed by Russell & Hanley)

MR J.A. GRIFFIN, QC:  May it please the Court, I appear

with my learned friend, MR W.D.P. CAMPBELL, for

the respondent. (instructed by Heiser Bayly

& ~1or tens en)

MR JENSEN: If it please the Court, I hand up the appellants'

outline of submissions.

BRENNAN J:  Yes, Mr Jensen.

MR JENSEN: If it please the Court, the principal aspect

of this appeal is the overruling in SEYMOUR V

BRITISH PAINTS. All members of the Full Court

in this case acknowledged that that case was

wrongly decided and also WILLIAMS V FLEMING which
was based upon it and SEYMOUR, in my submission,
has been universally rejected in States all around

Australia and in the United Kingdom and ought

to be overruled.

I have listed, in my list, cases, for example,

from South Australia, DOODY V FEDERATION INSURA~CE,
CORNISH V WATSON in Western Australia - - -

BRENNAN J: If you wish to give us these two for considerJ::on

you should, I think, perhaps give us the references

to them as well, Mr Jensen.

MR JENSEN:  Very well, Your Honour. DOODY V FEDERATION

INSURANCE, (1977) 16 SASR 173; CORNISH V WATSON,

(1968) WAR 198 and, of course, in New South Wales,

the principal recent authority is SWAN V WILLIM!S

(DEMOLITION) PTY LTD, (1987) 9 NSWLR 172. In

England, the rule for which I contend was established

by HAY V HUGHES, (1975} QB 790-.

Your Honours, the present Queensland law which debars recovery of damages for loss of

the wife and mother where no replacement, paid
housekeeper has been obtained, in my submission,

leads to an artificial and unjust result. The recovery of substantial damages, then, depends on whether the bereaved husband has the financial

and emotional resources to replace his wife with

a paid housekeeper and, in my submission, that

must be illogical and must be unjust. For example,

in this particular instance, the appellant widower

in fact suffered a significant grief reaction

and this, in my submission, is a case where the

timorous and grief stricken is wrongly kept :rom
the relief of the law because of that artificial

rule. The law, likewise, presently prefers the

rich over the poor.

BlT9/2/SH	2	MR JENSEN	r: 1s;s9
Nguyen(2)

Your Honours, the appellants simply adopt what

His Honour Mr Justice Gibbs, as he then was,

said in dissent in SEYMCUR V BRITISH PAINTS,

where His Honour said, at page 230:

However, the evidence that the husband does not

in tend to r e p 1 a c e the w i f e ' s - - -

BRENNAN J: What is the reference, Mr Jensen?

MR JENSEN: Page 230 in SEYMOUR, Your Honour.

BRENNAN J:	What volume of the reports?
MR JENSEN:	1967, Your Honour.  Your Honour has a photocopy.

At page 230, Your Honour, about a third from the

bottom:

However, the evidence that the husbane does not intend to replace the wife's services

does not mean that they had no value. It

merely shows that he is prepared to use
his own time and labour instead of expending

money in replacing the services.

And, at the bottom of the page:

The use to which he proposes to put his damages

is irrelevant to their assessment.

That, in a nutshell, is what the appeal is concerned with.

Your Honours, in NAUM's case Your Honours

have copies - at page 16 - - -

BRENNAN J:	The reference being?
MR JENSEN:	Your Honours have the photocopy.
BRENNAN J:	The list of cases is given simply for the

us to r~fer to cases, it is desirable to give	purpose of having them in Court. If you wish
us the volume reference, Mr Jensen.

MR JENSEN:  Thank you, Your Honour. Your Honours, that

is reported at (1974) 2 NSWLR 14.	His Honour
Mr Justice Jeffrey, referring to	SEYMOUR, said
at page 16E, of that principle:

Not only does it offend the principle that

damages are not to be measured by reference

to what the plaintiff will do with them

when he gets them; it fails also t6 identify

the loss in a case such as this for which

the damages are to be a compensation.

B1T9/3/SH	3	27/6/89
Nguyen(2)

At the bottom of the page:

To regard the expenditure of money on

such a replacement as a condition of

the existence of a loss suffered by the

widower which is capable of being regarded

as a pecuniary loss is, in the apt words

of Sugerman J in WILSON V RUTTER, "to
mistake the measuring rod for the thing
to be measut"ed."

The very simple point in this case the appellants contend is this, that the services of the wife and

mother as to which the appellants had reasonable

expectation, when deprived by her death gave

rise to a loss. What· the appellants ha'Je 'done

or not done since is completely irrelevant.

If I can move on - - -

DEANE J: It is a strange notion in modern times, is it

not, that when your wife is killed you lose something

of pecuniary value because it is her job to look

after you and you have to look after yourself.

MR JENSEN:  Well, Your Honours, in my submission,it is

well recognized that the services of a wife and

mother are benefit reducible to money value.

DEANE J: Well, I put it in terms of "wife".

MR JENSEN:	In terms of?
DEANE J:	Of "wife".
MR JENSEN:	Of why?
DEANE J:	Of ''wife", I said, not "mother".

MR JENSEN:  "Wife", yes. In my submission, there is ample

authority to support that contention that the

services of a wife are benefits reducible to

money value.

DEANE J: Except you escape the obligation,if you are

the supporting partner, of having to pay for

the services through support.

MR JENSEN:  Well, Your Honour, in my submission, the law

recognizes that the services of the wife have

a value to those for whom the services are provided.

DEANE J:  I was not querying that you can point to a lot

of support in cases. All I suggest to you is

it is a rather odd notion in contemporary

circumstances.

MR JENSEN:  Yes.

B1T9/4/SH	MR.JENSEN	27/6/89
Nguyen(2)

BRENNAN J:	That is a proposition you might like to mull over during the luncheon adjournment, Mr Jensen.
The Court will adjourn until 2. 15.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.24 PM:

BRENNAN J:	Yes, Mr Jensen.
MR JENSEN:	Your Honours, in response to His Honour

Mr. Justice Deane's question, in my submission,
in a dependency action the law protects the
reasonable pecuniary ex~ectations of the relatives.

If those expectations include the expectation of

a husband receiving wifely services, then so

be it. The law does not pass judgment on the

desirability of a husband receiving such services.

Your Honours, I move on to the question

of assessment of damages in a claim of this kind

on the footing that SEYMOUR's case will be overruled.

BRENNAN J:  Now, do we need to trouble with that, at this

stage, or must we not first address the question
of the principle by reference to which damages

should be assessed?

MR JENSEN:	I am sorry, I have not followed Your Honour.
BRENNAN J:	Are you proposing now to deal with the quantum

of the assessment?

MR JENSEN:  Yes, Your Honour.

BRENNAN J:  Perhaps we should consider, first, what the

principle is by reference to which the damages

should be assessed because it may be a question,

if we are with you on the matter of principle,

that the appropriate order is that the matter

should be returned to the Full Court for a

reconsideration of the quantum.

MR JENSEN:  Yes, Your Honour. Your Honour, in my submission,

pass judgment on a trio of cases: VESELINOVIC

the matter ought not to be returned to the Full

V THORLEY, CARRICK V COMMONWEALTH OF AUSTRALIA and

KOVAC V KOVAC. Now, they are three decisions

of the Court of Appeal of New South Wales or

the Full Court of Queensland and there is a

BlT9/5/SH	5	27/6/89
Nguyen(2)

dispute as to the applicability of those cases

to a claim of this kind. In my submission, those

cases ought to be held to be inapplicable to

such a claim.

Your Honours, those cases attempt to delimit

the damages in a GRIFFITHS V KERKEMEYER claim

where the services being gratuitiously supplied

are supplied in the family or domestic context.

Your Honours, the theoretical basis for delimiting damages in that situation appears, in my respectful

submission, persuasively in KOVAC V KOVAC, where

at pages 667 to 668 - - -

BRENNAN J:	The reference again, please, Mr Jensen?
MR JENSEN:	I am sorry, Your Honour, it is (1982) 1 NSWLR 656

and the relevant passages appear at 667 to 668 and

679.       In KOVAC V KOVAC, the passage in GRIFFITHS V

KERKEMEYER, in the judgment of His Honour

Mr Justice Gibbs, as he then was, at page 168, is

taken up and it is said that in such a claim there is

a two-stage process in determining whether the

gratuitious services ought to be brought into

account. At page 667, the passage from GRIFFITHS V

KERKEMEYER, at letter B, is referred to:

First, is it reasonably necessary to provide

the services and would it be reasonably

necessary todo 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 gratuitious

provision of the services such that it

ought to be brought into account in relief

of the wrongdoer? If not, the damages are

recoverable."

Now, in KOVAC V KOVAC, that second proposition is

used to come to the proposition that where the

services are rendered in a domestic context and

might be expected in any event, that could be

occasion for letting them go in relief of the

tortfeasor and that is the gravamen of KOVAC

V KOVAC. VESELINOVIC and CARRICK - - -

BRENNAN J:	Where does it say that in KOVAC V KOVAC?
MR JENSEN:	At page 679B, Your Honour, the second paragraph:

It is, in my opinion, by the application

of a test such as this, that an answer

may be given to the second question

referred to by His Honour Mr Justice Gibbs,

whether the character of the benefit is

such that it ought to be brought into

account in relief of the wrongdoer.

B1T9/6/SH	6	27/6/89
Nguyen(2)

Now, the appellants do not cavil with any

of this. VESELINOVIC and CARRICK are Queensland

extensions or adoptions of KOVAC V KOVAC in New

South Wales.

McHUGH J:	But are VESELINOVIC and CARRICK dependency claims?
MR JENSEN:	No, Your Honour, they are GRIFFITHS V KERKEMEYER

claims.

McHUGH J: Well, who has ever suggested that these cases

apply to a dependency claim?

MR JENSEN:	The Full Court, in this case, Your Honour. His Honour Mr Justice Thomas expressly adopted the
principles of VESELINOVIC V THORLEY as being
applicable and His Honour Mr Justice Derrington
also, in a brief reference, suggested that even
if SEYMOUR was not applicable, the VESELINOVIC
considerations would have to apply.

The appellants contend that these cases,

indeed, are quite inapplicable to a dependency
claim; that it should be totally irrelevant that
the dependants battle on in a family context

supplying services; that those cases may be

a cc e p t e d , in my s u b mi s s ion, as co r r e c t i n the

area in which they operate in personal injury cla i=is

but, with respect, they are totally inapplicable,

totally irrelevant in this context.

GRIFFITHS V KERKEMEYER, of course, created

a limited exception to the rule regarding volu~tary

services and KOVAC and the other cases further

limit that exception by saying that for services

rendered in a family context some discounting

should be applied to the claim so that the claim

remains reasonable. Now, all that may be conceded

but that has little to do with a death claim.

In a dependency claim, the tort does not create

a need for services, it takes away the provision

by the deceased of services and the appellants

submit that that trio of cases that the Full Court
considered applicable are totally irrelevant.

The appellants ask why should the deceased's services not be valued at the cost of hiring a

housekeeper? Why should the subsequent events,

the attempts of the relatives to cope with the

loss be relevant? Prima facie, the appellants

submit the pecuniary and material value of the

deceased's services would be the cost of hiring

a replacement housekeeper.

Your Honours, the appellants rely strongly

upon the decision of the Court of Appeal in

New South Wales in SWAN V WILLIAMS (DEMOLITION) PTY LTD and the contentions I put forward are in

B1T9/7/SH	7	27/6/89
Nguyen(2)

accordance, I submit, with SWAN's case. The that the cost of employing a housekeeper is the

prima facie measure of loss even where the

widower had, to some extent, borne the brunt of

the loss himself.

(Continued on page 9)

B1T9/8/SH	8	27/6/89
Nguyen(2)

MR JENSEN (continuing); And that is made quite clear,

for example, at page 189 in the judgment of

His Honour Mr Justice Samuels where the assessment

is based on the services of a full time housekeeper

and the figures are set out.

Your Honours, in saying that the subsequent events after the death are totally irrelevant - - -

DEANE J:	Do all these cases turn on there being children?
I mean, are there anywhere there have not been any children, where the husband has been said to be entitled to get damages because he has
to live like any single man and look after himself?

MR JENSEN:  Not that I am aware of, your Honour. They

all seem to involve a widower and children.

There are cases involving children only but I

cannot presently recall -

DEANE J: Children only are obvious and the children and

MR JENSEN:  I beg your pardon, Your Honour.

DEANE J: Children only, in my question, put it on the

other side but what do you say about the case

where you have husband and wife -no children -
and the wife does not work but looks after the
house? Is there really support in authority for
the proposition that the husband is entitled

to some pecuniary compensation because he has

lost his wife's services around the house?

MR JENSEN:	Yes, Your Honour, in SWAN, for example.
DEANE J:	But that is children again and underlying it is the fact that somebody has to look after the matrimonial home and the children.
MR JENSEN:	Of course, this case is a case of children

and - - -

DEANE J:	I appreciate that but if we are looking at principle, is your proposition thiE": that the
husband is at work and claimed damages for the
loss of the wife because she does not cook his
dinner any more and he has to cook it himself?
MR JENSEN:	Yes, I do contend that, 1 Your Honour, for the

reason I announced after the luncheon adjournment.

DEANE J: It seems quite mid-Victorian to me, if I might

say so.

MR JENSEN:  Your Honour, the law, as I said, does not pass

judgment on the worth or desirability of the

husband expecting his wife to render those services.

BlTl0/1/ND	9	27/6/39
Nguyen(2)

But once that proposition is established, the law compensates for loss of that benefit.

DAWSON J: If he was, in fact, cooking his own dinner before

his wife died he would not recover anything.

MR JENSEN:	No, of course.
DEANE J:	So the more selfish you are the better you do?
MR JENSEN:	That is so, Your Honour, and, conversely, the

more benevolent the deceased was the higher the

damages will be.

DEANE J:	And what if you cleaned her shoes, is that a
set-off like getting your dinner cooked for you?

MR JENSEN:  No, Your Honour, I would submit not. Your Honour,

as I say, the law simply does not pass judgment
on those matters. It simply recognizes that

if the relatives had a reasonable expectation

of them and the tortfeasor has deprived them

of those benefits, they are compensable.

McHUGH J:  NAUM's case was a case where there were no children

involved but there the husband was 61 and the

wife was 59, was it not?

MR JENSEN:	I beg your pardon, Your Honour.
McHUGH J:	NAUM's case was a case where there were no children

involved but the husband recovered damages?

MR JENSEN:	Yes, Your Honour.
McHUGH J:	The children were grown up in NAUM.
MR JENSEN:	Yes, Your Honour, the two sons were, respectively

32 and 23. There is no material distinction

or conceptual distinction, in my submission,

between a claim where there is a widower and

children and a claim where there is merely a

widower. Your Honours, in saying that subsequent events

are irrelevant, there perhaps ought to be a concession

for .the traditional cut off point of remarriage
and perhaps that is too strongly entrenched to
say otherwise although one might have some doubt

as to the ope~ation of that rule vis-a-vis the

children. But, save for that exception, the appellants

do submit that subsequent events are irrelevant.

Your Hon o u r s , i n s u mm a r y on th a t po i n t ,

this Court ought to declare that the trio of

GRIFFITH V KERKE~EYER cases I have referred to

are inapplicable to the claim and that the root

BlTl0/2/ND	27/6/89
Nguyen(2)

principle of assessment is simply an evaluation

of the expected services of the deceased.

If I could come now to the detailed matters

in the assessment - - -

BRENNAN J:  Do we need to trouble you about that if you

have exhausted what you wish to say on matters

of principle, because may there not be something
to be said for this that if the Court should
be with you on matters of principle the appropriate
order would be that the matter should go back

to the Full Court for assessment?

MR JENSEN:  Yes, I see what Your Honour is saying.

Your Honour, the appellants would urge the Court

not to do that.	Your Honour, the appellants
ask that the litigation be finalized.	T~e

widower, on my instructions continues to suffer

grief and depression and finds it difficult when

confronted with the ongoing liti~ation. I

understand what Your Honour is saying if the

principle can be established.

BRENNAN J: Let me put a further question to you: has

any attempt been made on the assumption that

you should succeed on principle to quantify the

damages on which the parties might agree?

MR JENSEN:  No I must say, Your Honour, that the respondent

simply does not accept that that trilogy of cases

is inapplicable.

McHUGH J: Mr Jensen, I am still puzzled. I did not understand

the Court of Appeal judgments to fully adopt

KOVAC V KOVAC and cases like that and say they

are fully applicable to this sort of claim.

They took aspects of them, did they not? What

is the matter with what Mr Justice Thomas said

at page 145 of the appeal book, where he said

at about point 4 on the page:

The principles recognised in KOVAC V KOVAC

and CARRICK V COMMONWEALTH OF AUSTRALIA

require the primary measure of damage to

be substantially less than the commercial

cost of engaging outside labour, especially

when the prospect of some personal leisure

overlaps with the caring activities .....

Again no discount was allowed for the

significant factors ..... applicable in cases

where the provider of the services performs

them within his own home.

Do you challenge that principle?

B '. ~ 10 / 3 /ND	1 1	JENSEN	27/6/89
Nguyen(2)

MR JENSEN:  Yes, Your HonOl..li-. The appellants saY.·that those consideraHons

are legally irrelevant. If the widower chooses - ~.1.. •

to battle on and render services in the domestic

context that ought not give any relief to the

defendant. Theoretically, after the death of

the deceased, the moment after her death, a

court is able to quantify the loss to the dependants.

McHUGH J:  But all His Honour is saying in that passage

is, is it not, that you do not assess it on the

basis of what it would .cost you to replace it

commercially?

MR JENSEN:  Perhaps, Your Honour, it is a matter of degree

that those cases do make important differences

in the end result because if, for example, a

domestic rate is $5 an hour the judges are inclined

to sa~ halve that where th{ services are

intermingled with other leisure activities and being performed in the home. In Queensland it seems to be accepted, in my submission, that

application of those principles can be quite

important to the result.

McHUGH J:  I am sure they are but, in any event, you challenze

the applicability of that proposition I read

to you?

MR JENSEN:	Yes, Your Honour.
BRENNAN J:	Although you challenge that proposition, what

proposition do you put in its place? We are

speaking now of the quantification of damage,

are we?

MR JENSEN:	Yes, Your Honour.
BRENNAN J:	And what are we seeking to quantify?
MR JENSEN:	In my submission, the proper approach to

quantification is to have some regard to subsequent

events but only to assist in establishing the

value of the deceased's services, not to - - -

BRENNAN J:	In determining the value of the deceased's services one may look at the commercial rate
of securing services of a like kind. But, is it vour
proposition that, having found the commercial "
rate for securing services of a like kind, as
a matter of law that is the quantification of
the damage?
MR JENSEN:	No, Your Honour, I would not put it as absolutely

as that. I submit that that would be the prima

facie loss and the court perhaps would look at

the events that bave occurred in deciding whether

BlTl0/4/ND	12	27/6/89
Nguyen(2)

that prima facie loss is a fair and adequate

assessment of the value,but where the appellants

part company with the judgment below is that

the appellants see that the Full Court prefers

some principle that the damages must be discounted

or diluted because of subsequent events.

BRENNAN J:  What do you say about the proposition that

it costs $300 a week and all found to provide
a full time housekeeper for a family but the
housekeeper must be given a day off a week?

Where does that lead ·you in terms of the assessment?

MR JENSEN:  That would be the prima facie measuring stick

for the deceased's services. If it cost $300 to

replace the deceased in monetary terms that would

be the prima facie loss. '

McHUGH J: vlhat about the day off?

MR JENSEN:	That would be relevant in assessing the figure.
McHUGH J:	You would increase the $300?
MR JENSEN:	Your Honours, we are only talking in broad

terms. Cases make it quite clear that these

assessments are jury assessments and that, of

course, is another point. The Full Court really

has generated some glosses on the GRIFFITHS V

KERKEMEYER principle that .perhaps the imprecision

of the assessment being undertaken does not justify.

BRENNAN J: Is Justice Thomas saying anything different

from what you have just been submitting?

MR JENSEN:  I submit so, Your Honour. Your Honour, in

VESELINOVIC itself, in my submission, it is made

clear in the judgment of His Honour

Mr Justice Derrington that there would be

significant discounting on the GRIFFITHS V

KERKEMEYER claim where the services are provided
in the home.	There is reference to the fact

that the services can be intermingled with leisure

activities; the fact that agency fees are applicable

and so on and, in my submission, those factors

are put forward as more than relevant moderating

circumstances.	They have a deeper significance
than that.

Your Honours, corning back to Your Honour

the presiding Judge's proposition, I am instructed

to urge that this Court, having established those

basic principles, determine what the Full Court

should have done with the defendant's appeal.

BRENNAN J:  Mr J~nsen we will not shut

you out irnmediatelv from putting those propositions

BlTl0/5/ND	1 3	27/6/89
Nguyen(2)

but we will hear the respondent before we decide

what we shall do about the course to be taken

on the quantification of damages. Yes, Mr Griffin.

MR GRIFFIN: It might be convenient if I hand up the

synopsis.

BRENNAN J: Mr Griffin, do you propose to argue in favour

of the non-concession? In other words, are you

supporting SEYMOUR or not?

MR GRIFFIN:	Your Honour, I cannot ever recall having been so burdened by the weight of contrary authority.
So,whilst we make no formal concession, we do
not propose, or did not propose to address any substantial argument in an endeavour to persuade
Your Honours to follow SEYMOUR's case. We do, an inconsistency, however, between allowing a
husband compensation for the loss of his wife's
services and the practice in claims by the wife
because when a wife beings a LORD CAMPBELL'S '
ACT claim she recovers financial loss by reference to what has become now a fairly well-known formula. She does not recover, in addition, any compensation in respect of her husband's services and if it
were to be said, for example, that with the money
that she gets from her claim in substitution
for her husband's income she could pay for those
services,that really would not answer the point
because in the marriage situation she is getting both the financial benefit and the services.
McHUGH J:	But in the COMPENSATION TO RELATIVES ACT or

LORD CAMPBELL'S. ACT cases, it is not

unusual, is it - certainly not in New South Wales -
for the wife to claim not only damages for the
financial dependency but also for the provision

of various services, for example, the husband

might have been a very good handyman and things

of that nature?

MR GRIFFIN: 

Yes, I rrust say, Your Honour, I 'waS really relyi,.1g on the Queensland practice where, perh~ps, we

have not been so inventive but the claims are

simply based on financial loss.

McHUGH J: 

Yes, I see.

MR GRIFFIN: 

But, apart from that, the authorities are fairly

clear, or at least the authorities that exist
at this stage, that the husband can bring a claim

in respect of the loss of his wife's services

even in the absence of children. One starts,

for example, with SEYMOUR's case itself where

Mr Justice Gibbs, as he then was, would have

allowed the husband a net three pounds per week
for compensation in respect of the loss of his

wife's housekeeping services.  In circumstances

BlTl0/6/ND 

Nguyen(2) 

27/6/89

in which there were no children I think the

TlO parties in SEYMOUR's case were - - -

DEANE J: That does not help much though, does it? I mean,

Mr Justice Gibbs was a dissentient in that case.

MR GRIFFIN:  He was a dissentient, yes.

DEANE J:  And circumstances must vary. I mean, if you

have an incapacitated male whosewife looks after

him, obviously, that is something buc if you have

a completely able-bodied man, on what basis does

he claim that he is entitled to financial

compensation for having to look after himself?

MR GRIFFIN:  Yes, we would thoroughly agree, Your Honour,

but another decision is the -

DEANE J:	I mean, the only approach you could really get would be in a more primitive society, how much Yt would cost to buy a new wife on the auction
block, or something.

MR GRIFFIN:  Yes. Another decision is the BUDGET RENT-

A-CAR decision in which Your Honour

Mr Justice McHugh participated, (1984) 3 NSWLR 303

an~ whilst in that case there were children at

the time of the trial, the husband's domestic

assistance was allowed for a period of 30 years.

And that, of course, went well past the point

at which the youngest child would have ceased

to be self-supporting. That, then, is another

authority in support of the proposition.

There is, also, NAUM's case and. in England

the matter was considered by Deputy Judge Neill,

as he then was, in MEHMET's case. MEHMET's case

is on our supplementary list of authorities,

(1977) 2 All ER 529. And whilst that was a case

in which there were children, the judge,

Deputy Judge Neill, specifically looked at the

questions; that is, the value of the lost services

of the children and the value of the lost services

of the husband independently.

And it is apparent from an examination of

his judgment that he was prepared to allow the

husband something in respect of his own loss.

That appears at page 537 of the judgment where,

at about point F, having reached the conclusion

that the children were entitled to the value

of the lost services, he then dealt with the

claim of the husband and he said:

The third head of claim is in respect

of the plaintiff's own loss. It is said

by counsel for the plaintiff that in addition
to the services which the children have

lost the plaintiff himself has lost the care

B 1 T 11 /1 /ND	1 S	27/6/89
Nguyen(2)

and attention of his wife. This is true

but I must here too take account of the

fact that the plaintiff is part of the family

unit to which he is now rendering services

as a full-time housekeeper, and of the fact

that damages under the first heading are
being assessed by reference to those services.

There is therefore the danger of the overlap

of damages under two different heads. I

have come to the conclusion that the total

damages should include an acknowledgement

of the fact that the husband has lost the

services of his wife but that in respect

of the period for which damages are to be

assessed under the first heading the additional

sum should be quite small.

Then if one proceeds over to page 539, one sees

that the deputy judge allowed the plaintiff a

figure which continued on after the period in

which the children would have been self-supporting.

He took what he said was an appropriate period

for the time while bhe family are to be considered

as a unit as 9 years and then 15 years for the

individual loss suffered by the plaintiff.

So those are decisionsthat do stand

as authority for the proposition that the husband

is entitled to compensation in his own right

and in respect of the services he himself has

lost.

But that is all we had proposed to say on

the question of whether SEYMOUR V BRITISH PAINTS

should stand. Perhaps it might be convenient

if I deal with the matters of CARRICK and

VESELINOVIC. I should say, Your Honours, that

we would support our learned friend's proposition

that this Court should take the opportunity to

lay down the principles on which damages in a

claim such as this ought to be assessed. In our submission, it would not be sufficient

simply to overrule SEYMOUR V BRITISH PAINTS.

The whole question of the applicability of GRIFFITHS

V KERKEMEYER to this type of claim is uncertain,

GRIFFITHS V KERKEMEYER being a personal injuries

case and this case being a dependency action.

We, of course, submit that many of the factors

that have been referred to in the personal injuries

cases are equally relevant here but we submit

that this Court should consider whether that

is so.

BlTll/2/ND	16	27/6/39
Nguyen(2)

There are other questions here such as the

involvement of the pension that the widower

husband received. There are many areas of

uncertainty that really should be resolved by

a statement from this Court, particularly bearing

in mind that the Court has not considered the

area generally since GRIFFITH V KERKEMEYER itself

and we now have a plethora 0£ State court

decisions dealing with many aspects of it and

a great deal of light could be thrown on the

area, in our submission, by a decision from this

Court.

BRENNAN J: 

But what _are t..>-ie areas of principle which require

elucidation and have not been elucidated by State
court decisions?

MR GRIFFIN: 

I think the general area of the applicability

of the cost of supplying a housekeeper, particularly

in circumstances in which no housekeeper is in

fact employed, as in the present circumstances.

Where a housekeeper is, in fact, employed, whether

it be a personal injuries case or a dependency

case, the position is, of course, quite clear:

one simply takes the cost of the housekeeper.

Similarly, if a stranger or even a relative is

brought in,in circumstances which equate to the

provision of a commercial housekeeper, the position

then is quite clear as well. There is no probleT.

in that situation about applying the standard

housekeeper's rates, notwithstanding that the

relative does not charge.

But when you have got the present situation,

whether it be in relation to personal injuries

or in relation to a dependency situatio~ of the

husband extending the extent of his services,

as it were, and performing services that he would

not otherwise have performed, that seems to be

an area of very considerable uncertainty.

BRENNAN J: Is that uncertainty reflected in the cases?
MR GRIFFIN:	I believe it is, Your Honour, even in the

personal injuries cases.

BRENNAN J:  Can you make that, proposition good by reference

to the authorities?

MR GRIFFIN:' Yes. The most relevant cases are the three

decisions to which our learned friend referred,

KOVAC's case, CARRICK's case and VESELINOVIC,

and, if I could take Your Honours to KOVAC' s case,

perhaps the question is really encapsulated by

asking whether what Mr Justice Samuels said in

KOVAC V KOVAC is correct.	KOVAC V KOVAC is
(1982) 1 NSWLR 656.	I will not take Your Honours

B 1 T 11 / 3 /ND	27/6/89
Nguyen(2)

to the whole of it but if Your Honours go to

page 668, first of all, at point D, His Honour

said:

If the principle confirmed in GRIFFITHS

is to be regarded as informed by considerations

of policy, as I think it must (see eg

Lord Reid's remarks in PARRY V CLEAVER,
quoted with approval by Gibbs J in GRIFFITHS,

and those of Stephen Jin the same case),

I do not believe that any head of policy

(or theory of loss distribution) requires

the ordinary currency of family life and

obligation to be wholly ignored; or the

inclusion in the area of compensation of

the support commonly expected and received

amongst the members of a family group, even

though the actual occasion for its provision

may be the tort-caused disability of the

recipient. As I said in JOHNSON V KELEMIC,

"I agree with Mahoney JA that not every item of assistance and support rendered

by one member of a family to another ought

reasonably to be regarded as sounding in

damages"; and see the remarks of Mahoney JA.

In that case the effect of the decision

in GRIFFITHS was not directly in point because

the claim was (unsuccessfully) made by the

provider himself. But in BLOOMFIELD V

BRAMBRICK the question did distinctly arise, and this Court examine the principle in

some detail and expressed the view that

not all services gratuitously rendered to

satisfy an accident caused need can be charged

to the defendant.

If I could proceed now to page 669, at a, little

under letter B, His Honour said:

It is no longer admissible for a defendant

to argue that because services will be provided

gratuitously their cost is not recoverable,

whether the argument proceeds on the footing

that gratuitous services are not reasonable

or necessary or that legal liability to

pay is lacking or upon any other basis.
But it is open to a defendant to contend

that, granted the reasonableness and necessity

of gratuitous services, and their potential

cost, he ought not to have to pay for them,

or all of them, either having regard to
the character of the benefit they represent
or by dint of the overriding principle of
reasonableness which must inform all assessments
of damages at large in cases such as the

present.

4 /ND 27/6/89

Nguyen(2)

Just taking the present case, Your Honours, one has, as Your Honours have seen, the figures

for providing a housekeeper in the household.

No housekeeper was ever provided, no substitute

was ever obtained. It was not likely that one

ever would be obtained. What does one do in

that situation? Does one simply take the commercial

cost and say, "Well, $200 a week for so many

years and that yi2lds so much and we don't make

any adjustments to that", or does one, on the

other hand, say, "Well, this is one of those
cases in which it is totally artificial to look

at the matter by reference to commercial cost."

That has been said in some of the English

cases, that there are circumstances in which

it is quite artificial even to approach the question

by reference to the commercial cost of the services.

TOOHEY J:  But when you put the matter that way, Mr Griffin,

you are really inviting this Court to make findings,

are you not, not merely to examine principle,

to make findings on the various heads that may

be offered in support of the appellant's claim?

MR GRIFFIN: Certainly the Court would, on this invitation,

assess the damages because they have never previously

been assessed except by the master.

TOOHEY J:  But you would be inviting the Court to make

findings, to deal with a variety of questiora,

on none of which this Court has had the benefit

of any view from the Full Court?

MR GRIFFIN:  Yes, that is true that the Full Court or the

majority of the Full Court did not pronounce

on the damages issues at all and that is certainly

the case but I think it is none the less true

to say that the areas of principle which I have

identified are the areas that are in qu~stion.

McHUGH J:  At the back of my mind I have got a feeling

that there is - is there not some conflict between

the decision of the Full Court of the Federal

Court in these New South Wales'decisions of KOVAC?

Is there a case called FROST or some name like

that that - - -

MR GRIFFIN:  I think there is, yes.

McHUGH J: - - - which I think may have criticized KOVAC

and might have gone further.

MR GRIFFIN:  The problem is really also exemplified by

the Queensland case of VESELINOVIC. That was

a personal injuries case in which the wife had

BlTll/5/ND	27/6/89
Nguyen(2)

sustained fairly serious injuries but she did

not need, apparently, full time help.

BRENNAN J:  We do not seem to have copies of that at the

moment.

MR GRIFFIN:	I am sorry, Your Honour.
BRENNAN J:	I do no~ think it is your fault, Mr Griffin,

we just simply have not got copies of it so that

if you have to cite from it, could you read it

to us, the passages that you have in mind.

MR GRIFFIN: Yes, Your Honour. In that case the husband who was actually

on workers' compensation at the time that the
injury was sustained, in effect, stayed on workers'

compensation and then stayed away from work on

unemployment benefits and assisted his wife.

And the question arose as to how that was to

be compensated. There was, of course, the usual

evidence as to what it would have cost to have

a housekeeper there over the entire relevant

period.

Mr Justice Connolly and Mr Justice Thomas

took the view that the appropriate approach in

the circumstances of that case was not to look
at the cost of providing a housekeeper but rather

to ascertain what the husband had lost by staying

away from work. From his lost wages they deducted

the workers' compensation that he had received

and the unemployment benefits and came to a figure

of $30,000 which compared with the figure of,

I think, $97,000 which would have been the cost

of commercial care.

On the other hand, Mr Justice Derrington thought that the commercial rate should be the

starting point and, however, that many adjustments

should be made to the commercial rate and he

reached a figure, I think, in relation to the pretrial period of $60,000. In the end, the

lack of guiding principle in these cases seems

to contribute to the plucking of a figure out

of the air, if I might say that, and perhaps

that is exemplified in the present case in

Mr Justice Thomas's judgment where, having used

the commercial cost of supplying the housekeeper

at a commercial rate, he then refers to a number

of discounting features that he regards as relevant

and then says, for instance in relation to the

pretrial period, the figure of $70,000 is not

appropriate but the figure of $45,000 is.

One is accustomed to that sort of thing

in relation to the assessment of damages but

one does have the feeling that it is partly because

BlTll/6/ND	20	27/6/89
Nguyen(2)

of the ~uiding lack of principle in this situation

ttat these figures do tend to be plucked out

of the air.

BRENNAN J: There is a risk, is there not, in endeavouring

to dress up as a proposition of principle something

which is no more than a difficult and perhaps

tendentious area of assessment and if this Court
were to endeavour to confine under the guise
of principle that which is no more than the finding
of fa~t then it would not be an appropriate discharge

of our function.

MR GRIFFIN:	That is true, Your Honour.
BRENNAN J:	Then, if we are concerned with,, for example,

the discounting factors to which Justice Thomas
referred, must we not confine ourselves to the
items which might arguable give rise to a question

of principle, if there are any?

(Continued on page 22)

B 1 T 11 / 7 /ND 2 1 27/6/89

Nguyen(2)

MR GRIFFIN:  Yes We· 1, the way I would have put it would

be this: t'. .t there are here sufficient areas of

principle wnich are apparently in dispute.

BRENNAN J:  Perhaps they would lend themselves to a

proposition so that we could examine them for the

purposes of determining whether they are principles

or not.

MR GRIFFIN:  Yes. And, because of that, the appropriate

course for this Court to take would be to embark

upon the assessment of the damages in the

circumstances of this case. That is the way I

would put it. But, of course, if Your Honours

see it more appropriate for the matter to go back,

then so be it. But, if the matter goes back and

these matters are still in dispute, the matter

may well then come back before Your Honours and

the matter will then have had a very long and

sorry history. I cannot add anything to those

submissions as to why Your Honours should embark on

the question of the appropriate damages.

BRENNAN J:	Can you identify any question of principle that is raised on this aspect to· the matter save	fo:::-
the sentence in Justice Samuels' judgment in
KOVAC at page 669, where His Honour ·says:

it is open to a defendant to contend

that - - -

MR GRIFFIN:  Well, there is that, Your Honour; coming to

more specific things, I would submit that it is a

question of principle whether in a case such as

the present the damages ought to be assessed on :~e

basis of the loss to the provider of the services

on the one hand or the cost of supplying the

services conrrnercially on the other. And then tte:::-e

is an area to which our learned friend referred,

namely, that the question of whether in cases such

as this one should value the services on the basis

that they are performed in one's own home or

whether one should value them on the basis that
they are being provided by a stranger who comes into

the home. That, in my submission, is a question of

principle in relation to the valuation of services
of this kind, whether one is looking at it in terms
of the services provided by the wife initially, or
in terms of the services that the husband now
provides in substitution for what the wife
previously provided, that question being, does one

proceed to that valuation on the basis that those

services are being provided by an occupant of the

household, or does one proceed to it on the basis that som2one

BlT12/1/JH	22	27/6/89
Nguyen(2)

has to be brought in to provide the services?

That was a question that His Honour

Mr Justice Derrington addressed in

VESELINOVIC, (1988) 1 Qd R 191, where he said,

having considered that question:

The correct rate is a commercial rate

which would be paid to a stranger

performing this service in her own

home and having only those constraints

upon her activity experienced by the

plaintiff's husband. And the same

principle must be applied appropriately

in respect of the other services

provided.

Now, in many other cases, applying GRIFFITHS V

KERKEMEYER, no consideration has been given to the

question of whether these services should be

valued on the footing that they are being provided

in one's own home as opposed to being provided by

a stranger who is being brought into the home.

That, in my submission, is a question of principle

in cases of this kind.

DEANE J:  Mr Griffin, I am a little bit lost on exactly

where the past economic loss award fits in. Was

that referred to by Mr Justice Thomas in his - - -

MR GRIFFIN:  I believe it was not, Your Honour, not as

such.

DEANE J:  That is damages that the husband received for his

own injuries for loss of earnings during the period

he was at home looking after himself and the

children?

MR GRIFFIN: 

Yes, the master thought that the widower husband

had some employability but not a very great deal
of employability so, for the period of 5\ or 6 years,

he allowed him $17,000 by way of past economic

loss. 

DEANE J: 

Because of lack of.capacity - because of his injuries?

MR GRIFFIN: 

Lack of capacity because of his injuries, yes.

DEANE J: 

And, was that against your client also?

MR GRIFFIN: 

Yes, there were two - - -

DEANE J: 

Is there not an element of doubling up in that?

MR GRIFFIN: 

Well, there could well be, Your Honour, yes.

Bl TL~/2/JH	23	27/6/89
Nguyen(2)

DEANE J:	But, you do not make any point of - - -
MR GRIFFIN:	We do, we use it rather as a means of

demonstrating, as Your Honour will have seen from

the submissions, that it is quite inappropriate

in circumstances of this kind to measure the

damages by reference to the commercial cost of a

housekeeper because we point out in the submissions

that the plaintiff has really received, in all,

over $120,000 in respect of this pre-trial period.

DEANE J:  But, was there any damages - and, only if the

evidence is there - was there any damage

recovered by him for future economic loss by

reason of his injuries?

MR GRIFFIN:  No, there was not, Your Honour. It was

really in relation to his grief reaction which -

I think the general effect of the evidence was

that he had largely overcome it by the time of

the trial.

DEANE J:	I see, thank you.
MR GRIFFIN:	Your Honour, we had intended to give

Your Honours the reasons in the personal injuries action. We do think Your Honours should have those

and they should have been included in the record,

the main reason for that being that the master, in

fact, makes cross-reference to the personal

injuries decision. As Your Honours know the

personal injuries action and the dependency action

were heard by the master at the same time; he gave

two separate judgments, of course. But, if one

looks at page 116 of this record one sees that he

makes cross-reference to findings of fact which

he has made in the personal injuries action. He says:

I have set out in my reasons for judgment

in Mr Hien Van Nguyen's action for

damages on his own account, the

circumstances in which Mr and Mrs Van Nguyen

lived by arrival in Australia and coming to

Brisbane and of their intentions.

Similarly, on the next page, page 117 at about line 20, there is reference again to the personal

injuries action. So we do think that Your Honours

should have the reasons for judgment in the

personal injuries action.

Now, of course, when the matter came before

the Full Court, the Full Court had the judgment in

the personal injuries action because there were

appeals in both matters which were dealt with one

after the other by the Full Court and, of course,

the record included the judgment of the master in

the personal injuries action.

BlT12/,3/JH	24	27/6/89
Nguyen(2)

BRENNAN J:	Do you wish to produce them?
MR GRIFFIN:	We wish to produce that and I understand that

our learned friend has - - -

BRENNAN J:  Do you have anything to say about that,

Mr Jensen?

MR JENSEN:  Your Honour, I have no objection to the

production of material. I do object to the

respondent raising arguments not raised before the

Full Court and I intended coming on to that point

later.

BRENNAN J:  Yes. Mr Griffin, have you said all you wish to

say on the question of the issues of principle

that, on your submissions, do face the Court

at the moment?

MR GRIFFIN:	Yes, Your Honour.
BRENNAN J:	Mr Jensen?
MR JENSEN:	Your Honour, could I be heard further on that

matter? There is one matter that I omitted

to mention.	Your Honours, another matter of
principle which is	inextricably bound up with

the end result is the question of material

benefits in services going beyond a 9 -to~

housekeeper. Now, there is a considerable body o:

authority to suggest that the connnercial cost of

a housekeeper is a necessary beginning point but not

the end point in the assessment because something

needs to be allowed for the material benefits of a

wife and mother that go beyond housekeeping. I,

therefore, support my learned friend's contention
that really there are matters of substance and

principle inextricably bound up with the findings

and evidence in the case.

Your Honours, in SWAN V WILLIAMS (DEMOLITION),

that is made clear at pages 187 aqd 189 where,

at page 187 D,. :-lis Honour Mr Justice Samuels

says:

I agree with counsel that there are

elements in the relationship which go beyond

satisfaction by proof of the cost of hiring

a housekeeper.

At letter E:

"The loss of a mother may involve many

things which may be regarded as of a

pecuniary character". I take this statement

to be intended to remind judges that the

loss of a loving mother and affectionate spouse

Bl T12/4 / JH	25	27/6/89
Nguyen(2)

cannot be compensated merely by the

cost of hiring a housekeeper and

companion for the children, however

accomplished such a mother substitute

might be.

Then, on page 189 at letter E, between D and E,

His Honour says:

The final figure produced by the

calculation is $94,896. However, looking

at this amount in order to see whether,

the spuriously accurate mathematics having

been done, it properly represents what

seems to me to be the loss, leads me to

the conclusion that it makes insufficient

allowance for intangibles and other lost

benefits of value, difficult though they

might be to assess in money terms. It seems

to me that some increase ought to be made and

I will therefore add what is necessary to

bring the total to $110,000.

BRENNAN J:	Well, that is not a proposition against which you would striv~ is it?
MR JENSEN:	No, Your Honour, but those matters of principle

and the weight to be given to factors such as that,

in my submission, are bound up with the totality

of the evidence.

TOOHEY J:  Well, Mr Jensen, is there any finding, either by

the master or by the Full Court, on that aspect?

MR -JENSEN:	No, Your Honour but that is a matter that I would upon as offsetting' any alleged ge~erosity in the award and it is a matter this Court would need to	rely
address and pass judgment on as to whether those
factors are relevant and to provide some guide to
the courts as to what weight or how significant
that factor is. That proposition appears
established in England as well now and my learned	friend has referred to MEHMET and PERRY and it is
also established in the more recent decision of reasons, Your Honours, I join with my learned friend in urging the Court to arrive at the conclusion that one cannot dispose of the case to
decide in the abstract, as it were, the principles
and then - - -

DEANE J:  Well, except the reason you got leave to appeal

was SEYMOUR and none of these complications down the

line, so far as I recall, highlighted the application

for leave to appeal. Now, if you succeed on

SEYMOUR, why is not the appropriate course to

send it back to the Court of Appeal so we will have

·Bl T12-; 5 / JH	26	27/6/89
Nguyen(2)

what we would have had if SEYMOUR had not been

there, that is, the benefit of the superior court
of this State as to what they see as the

appropriate method of attacking what is

essentially a practical problem of assessment?

MR JENSEN:  Because, Your Honour, the parties will still

be in dispute as to the application of that
trilogy of cases and, secondly, as to the

application and significance of the matter I have

just mentioned, being the - - -

DEANE J:  And you will get a decision of the Full Court

of the Supreme Court which will probably be the

end of the matter.

MR JENSEN:  I do not know, Your Honour, but I mentioned

earlier in my instructions on the state of health

of the widower.

BRENNAN J:  I think the Court will adjourn for a short time

to decide what course it will take.

AT 3.31 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.35 PM

BRENNAN J:  The Court will not proceed to the hearing of

argument on questions other than the principles

which govern the assessment of damages in cases

of this kind. We will not proceed to a

consideration of the application of those

principles to the case in hand. Now, that being

so, do you have anything further to say, Mr Jensen,

on the submissions that you have already made?

MR JENSEN:  Your Honours, the question of the impact of

social security benefits, in my submission, is a matter of principle. Your Honours, it was clear from exhibit 10 at page 93 of the record that there

was a considerable difference in the married rate of

unemployment benefit which the family would have

received if the deceased had survived, as opposed to the supporting parent benefit that the widower

received. I simply submit that this Court ought

to rule that that, in principle, is a relevant

countervailing factor against any generosity in

the award.	The difference in that rate in the two
kinds of oension were substantial	Extrapolated

to the date of judgment, it was some $17,500.

27/6/89

Nguyen(2) B1Tl2/6/JH 27

TOOHEY J:  How does that arise in the instant case as

opposed to its implications for a claim for

damages for personal injuries by Mr Nguyen,

Mr Jensen?

MR JENSEN:	Well, Your Honour, it is submitted that one has to take into account the reduced level of
welfare benefits to the widower simply in the
balancing process of looking at the gains and losses to him. It is simply put forward as a counter discounting factor but in view of the Court's ruling I simply ask that that matter be
accepted as a matter of principle to offset any
discounting factor.
DEANE J:	Did he receive those amounts or did he receive

something else?

MR JENSEN:  Yes, those amounts were received. He was on

unemployment benefit at the date of the accident.

DEANE J:  I see. So, instead of the family unit getting

what is in the second column, they only got what

was in the first column?

MR JENSEN:	Yes.
McHUGH J:	But, he did not have to support his wife.
MR JENSEN:	No, because one would then adjust for the cost of her maintenance but, of course, one would not
do that twice. The respondents have raised that as a separate contention but one would not take
that off twice.
BRENNAN J:	What we-have not got here is the unemployment

benefit for a man with two children.

MR JENSEN:  Yes, Your Honour, in the second column, the

column on the right, in exhibit 10:

have received as an unemployed married The benefit which Mr H.V. Nguyen would person supporting a wife and two
children - - -

BRENNAN J:  That is a married person. What I am saying is,

what we have not got is unemployment benefit for

an unmarried man and two children.

MR JENSEN:	Yes, Your Honour, we do not have that.
BRENNAN J:	We have?
MR JENSEN:	No, Your Honour, no, I am sorry.

B1Tl3/l/JH	28	27/6/89
Nguyen(2)

BRENNAN J:  Do we know whether it might have been more

or less than the figures in the first column

for supporting parents?

MR JENSEN:	It would be less, I think.
BRENNAN J:	Yes.
MR JENSEN:	Your Honours, they are the only matters I

propose raising that relate to principle as
opposed to the evidence in the findings.

Your Honours, in relation to the respondent's outline, I do object to points being taken which

were not taken in the Full Court and they appear

to be two: namely, the deductibility of the

supporting parent's benefit and, secondly,

the question of overlap with the

widower's own personal injuries claim. Those
matters are not raised in the notice of
contention under Order 70 rule 6(5), but the

point of substance, in my submission, is that

they simply were not run as arguments in the

Full Court.

Now, in my submission, this is an appeal from

the Full Court where the defendant was the

appellant so, in my submission, the test here

is what the Full Court should have done on the

defendant's notice of appeal. Now, the

defendant's notice of appeal did not raise those

matters and I can hand up the defendant's synopsis

in the Full Court if that is necessary but those points simply were not argued in the Full Court;

and that surely must be the test, what the Full

Court would have done, or should have done, with

the defendant's notice of appeal.

If this Court is against my objection to those

arguments being raised, I have prepared argument

on them, but at this point I object to my learned

friend raising those points.

BRENNAN J:  I think we should hear what you have to say

on them, Mr Jensen.

MR JENSEN:	On those points, Your Honour?
BRENNAN J:	Yes.
MR JENSEN:	In relation to the pension, no doubt my learned friend will rely upon MEHMET V PERRY, (1977) 2 All ER 529, and in that case the supplementary benefit paid to the widower was taken into account. In
my submission, the decision there is explicable in terms of the way the claim was framed because
the widower there claimed more than the cost of

B1Tl3/2/JH	29	27/6/89
Nguyen(2)

employing a housekeeper. He pitched his claim

rather higher, being his loss of income in

giving up his work to care for the family. In my

submission, it was obviously reasonable and

right to bring into account the supplementary

benefit he received from the State when he pitched

his claim at his own loss of earnings. That, in

fact, is analogous to VESELINOVIC V THORLEY,

to the relatives' claim there.

In my submission, MEHMET V PERRY ought to

be distinguished from this case. Secondly,

Your Honours, in my submission, section 15C(d)

of the COMMON LAW PRACTICE ACT is a code. That

section provides for exclusion of certain

payments.

BRENNAN J:	What does it say?
MR JENSEN:	It provides that this group of payments:

shall not be taken into account -

(d) a sum paid or payable on the death

by way of pension, benefit or allowance

under any law of the Cormnonwealth or of

any State or Territory of the

Cormnonwealth or of any other country.

So that the relevant wording is "a sum paid

or payable on the death by way of pension". Now,

the respondent says that the supporting parent's

benefit was not a pension "payable on death".

In my submission a fortiori it must follow that

the pension is not taken into account.

Section 15C, in my submission, exhaustively states

which pensions can be taken into account and if it

is not a pension "payable on death" a fortiori,

surely it ought to be disregarded.

character as the loss in question and in principle	supporting parent's pension does not have the same Thirdly, Your Honours, in principle the
ought to be disregarded quite apart from
section lSC. That pension is not paid because the
widower has lost his wife but simply because he has
the upbringing of two children.

DEANE J:  Was that taken into account in his own personal

injuries action in assessing loss of past

earnings?

MR JENSEN:  No, Your Honour, I think the master was

persuaded to follow HOLTMAN V SAMPSON, the case I will

refer to, as he was bound to do. The point has been

the subject of decision of the Full Court in this

State in a case not on my list, HOLTI1AN V SAMPSON, (1985)

2 QdR 475-476, dealing in a personal injuries case with the
deductibility of the supporting parent's benefit. The Court

said there:

B1Tl3/3/JH	30	JENSEN	27 /6/89
Nguyen(2)

MR JENSEN (continuing):

It is difficult to see any basis upon which

they should be brought into account in diminution

of damages. Their payment has no relationship

to any incapacity resulting from the accident.

They seem to be payments made by the government

because of her status of supporting parent (as

defined), intended for her enjoyment, and not

provided in relief of any liability in others

to compensate her.

There is reference to ESPAGNE's case and

REDDING V LEE on which the appellants also rely. In

my submission, the reasoning of the Full Court there

is compelling and convincing that this particular

pension is paid because the widower is bringing up

children rather than working outside the home. The

receipt of the pension has little, if anything, to

do with the tortious loss of his late wife and that

matter ought to be disregarded.

Your Honours, in relation to the overlapping with

the personal injuries claim, I simply submit that the

points raised are quite irrelevant. For example, in
point 5, I think it is, of my learned friend's outline

there is a tabulation which speaks of the sum for

past economic loss of $17,000. Now, in my submission,

that is totally irrelevant to assessing the loss of

these parties through the death of the deceased.

There is simply no two things comparable that are being compared.

The widower was on unemployment benefits at the time of the acciden~ in any event, so how it becomes

relevant to tabulate hi.s social security benefits

from the accident the appellants cannot see.	They
are my submissions.

BRENNAN J:	Mr Griffin.
MR GRIFFIN:	If the Court pleases. Your Honours, firstly, we

would submit on the question of principle that the

dissenting judgment in SEYMOUR's case correctly
states the law in the sense that it restricts losses

to losses which can be assessed in monetary terms.

It is submitted that where the majority disagreed

with His Honour Mr Justice Gibbs in SEYMOUR was

simply on the question whether the services performed

by a wife for her husband could be assessed in

monetary terms. That is apparent if one looks at the

majority judgments and the judgment of Mr Justice Gibbs

in that case and I will not take Your Honours to

those passages.

The views expressed by Mr Justice Gibbs have

been followed in many other decisions but it is

submitted that the underlying principle, namely that

the services must be services which are quantifiable

Nguyen(2) B1Tl4/l/DR 31 27/6/89

in monetary terms remains. For that reason we would

submit that lost affection and companionship of the
wife and mother remain uncompensable. That has also
been the position taken in the English cases and

HAY V HUGHES, to which our learned friend referred this morning, (1975) QB 790, is an example. Without

taking Your Honours to the passages, we would refer

Your Honours to Lord Edmund-Davies at 809 and

Lord Justice Buckley at 810-811.

There has, however, been a recognition in England

of the proposition of the services of a mother, as opposed to a husban4 capable of being assessed in pecuniary terms. are not limited to housekeeping

services simpliciter but that help in homework and

instruction in upbringing, things of that kind, are

to be included. That recognition may be seen by

looking at MEHMET V PERRY to which we referred this

morning, (1977) 2 All ER 529. That was the case of

the death of a wife who was the mother of five children,

two of whom had a rare blood disorder.

Following the death of the wife the husband stayed

at home to look after the five children particularly

the two with the disease and no housekeeper was

engaged. Deputy Judge Neill referred to a judgr:ienc

of Justice Watkins in REGAN V WILLIAMSON in which

there was this acknowledgement that a mother does

more than merely housekeeping work and Deputy

Judge Neill went on and said that he recognized that

but at page 537, letter f:

Nevertheless in assessing the value of the

lost services I think that a jury would pay

some regard to the fact that the children have

lost the personal attention of their mother

and that they now have only one parent to look

after them instead of two. I propose therefore

to award an additional sum under this heading

but to keep it within modest limits.

So, we would submit that the Court would acknowledge the correctness of that recognition

but none the less reaffirm that what is compensable

in this area is something that can be described as

services - that services can be interpreted broadly

so as to encompass assistance with housework and

assistance with homework and instruction in upbringing -

but once one goes past that one is in the area of

affection and companionship and the Court should

reassert that affection and companionship are not

compensable in cases of this kind. Proceeding from

there the Court shoul~ in our submission, take the

view that as the services that are in auestion are

services with a pecuniary value the yardstick of the

cost of commercial services where no substitute is, in

fact, employed such as in the circumstances of the

present case, is highly artificial and should not be

adopted at all.

B1T14/2/DR	32	27/6/89
Nguyen(2)

MR GRIFFIN (continuing): As I said before, if a substitute

is in fact employed, it is an entirely different

matter, but in the present circumstances we

submit that it is totally artificial to even use
as a starting point the commercial cost of bringing

a housekeeper into this house, in circumstances in

which what has happened is that the husband, who

previously carried out some services himself,

expands the range of his services to cover what the

wife had previously done. We submit that that

is in accordance with what Lord Justice Ormrod

said in DALY V GENERAL STEAM NAVIGATION (1981) 1

WLR 120, especially at 130 where the passage appears, and that is the passage to which I have referred

earlier as stating that there will be circumstances

in which the calculation of the damages by reference

to housekeeping rates is totally artificial.

DALY itself was a personal injuries case where

the husband, with some help from his daughter, had

looked after his wife who suffered personal injuries,

and it was held that in respect of the pre-trial period the cost of housekeeping services was not

the appropriate yardstick. The circumstances were

that the husband had apparent.!.y continued in full time

work, but given up some part time earnings in order

to assist his wife, and the court held that the

appropriate damages in respect of the past were the

part time earnings which the husband had given up

and the housekeeping costs had actually been

expended.

It seems to have been expected that if the

plaintif had had the benefit of a full time

housekeeper she certainly would have been looked after better than she was by her husband and her

daughter, but the court, in effect, said, "Well that is to be brought into account in the award for payment, suffering and loss of amenity. In

relation to care the appropriate damages are the

lost part time earnings of the husband and the

housekeeping services actually engaged".	None the
less, in relation to the future the court took a

different view, saying that the estimated cost

of actually providing the services was the correct

approach. That, in our submission, is the correct

approach here as well.

In our submission the notional cost of a

housekeeper is not the appropriate test for the

past and indeed is not something that should be

used as a starting point.	The situation with respect
to the future is, however, different.	One does not

know, for example, that the husband is going to

perform these services for the rest of the period

that the children will be infants. One cannot be

BlT15/l/FK	33	27/6/89
Nguyen(2)

certain of that, and it is possible that

corrnnercial housekeeping will be used, and in those

circumstances, rather in line with the approach in

DALY's case, it is not inappropriate, in our submission,

to look then at the housekeeping rate, at least as a

starting point. Of course, we submit that many

adjustments need to be made.

BRENNAN J:  I do not follow why this involves some problem

of principle, Mr Griffin. If you postulate that the

subject matter of compensation is the loss of

particular services, and services of that kind can

be secured in substitution, would you not start by

saying, "How much will it cost to secure those

services?"?

MR GRIFFIN:	In relation to the future, yes, Your Honour.
BRENNAN J:	Why not in relation to the past?

MR GRIFFIN: Well, in relation to the past, the Court should

take into account what has, in fact, occurred.

BRENNAN J:  Be it so, but if one does take into account what

has in fact occurred, let us assume that the services

were provided, not by the husband but by an aunt or

by a neighbour next door. Let us assume further

they were provided gratuitously because the deceased

and the neighbour next door were dear friends and the

children always played there.	Now what would be the
measure of compensation?

MR GRIFFIN: In those circumstances that Your Honour has

raised, the cost of connnercial care.

BRENNAN J: Well then, what is the difference between the aunt

coming in and the decision to leave the aunt at home

and the husband doing it?

MR GRIFFIN:  Because the husband is already there. He was

going to be there in any event and he merely extends

the range of his services.

BRENNAN J:  So be it. He extends the range of his services by

providing those services which could have been provided

by the aunt and which used to be provided by the

mother. Why should that go in diminution of the

damages?

MR GRIFFIN:  Because, it is whether one looks at it in terms of

what the wife did before she died, or looks at it in

terms of what the husband is doing now. It is simply

not to be equated - it cannot be equated with

bringing in a commercial housekeeper to perform those

services. It may be that if those services are not

provided by the husband or, if they had not been provided

by the wife, the only way to have them provided is by

incurring the commercial cost. But that does not mean

BlTlS/2/FK	34	27/6/89
Nguyen(2)

that if they have not been provided in that

way, or in a manner analogous to that, they should

be valued by reference to com:~ercial cost.

BRENNAN J:  But if you have got a household of two young

children, it does not take much imagination to see

that there has to be shopping, house cleaning,

and washing and the variety of things that happen

in the household. Now, it is something which is, for those of us who might have been burdened with

the problem for a temporary period, something that

is more than a full time job. Why is it that

the husband's services,because he is already in the

house,	count for less than those of the woman
next door?

MR GRIFFIN:  They do not really count for less. But what one is

really saying is that because if the husband had not

done them, one could only have had them performed by

bringing in someone else and having them perforned,

that the true value of the husband's services is to

be measured by the cost of bringing in someone else

in circumstances in which no one else was brought

in.

BRENNAN J:  How do you value them? Do you value them more because

he was more devoted to the task than a stranger?

MR GRIFFIN:  You certainly value them by taking into account

the fact that he performs the~ in his own home.	He
performs them in circumstances in which he was

already performing some of them in any event; it is

merely an extension of what he was doing previously,

and, of course, if he does sustain any particular

out-of-pocket expense or does incur any expenditure,

anyloss, then that is compensated. If he loses

part time earnings because he gives up a part

tim: job, that is compensated. If he stays away

trom work for six months because there are particular

problems, that is compensated.

(Continued on page 36 )

BlTlS/3/FK	35	27/6/89
Nguyen(2)

But, to value it by reference to something that

never happened and which is not analogous - and

which is not at all analogous - i~in our submission,

totally artificial. The only reason that one

gets to evaluation of that kind is because one

says if he had not done it, then the only way

that they could have been done was by bringing

in a housekeeper to do it on a commercial basis

and, in our submission, that is not a sufficient

reason for saying that the value of these

additional services he is performing is the cost

of bringing in a housekeeper for eight hours

a day, seven days a week which is what was said

here with the resultant assessment by the master

of a figure of $70,000 for the value of these

additional services that the widower husband

performed, circumstances in which, if he had

working for the whole period, he would only have

earned, according to the exhibit, $69,000, with
the ultimate result being that, in respect of

that five or six-year period up to trial, he

received the supporting parent's pension of

$42,000. he received past economic loss of
$17,000, and then there was this further assessment

of $70,000.

BRENNAN J: That really raises a different problem, does

it not, and that is that if you have a poorly

paid husband whose services in the market in
whatever capacity are worth not more than X dollars,

then the fact that he is performing work which

ordinarily would have commanded more in the market

when done by a commercial housekeeper does not

entitle him to enhance his earning capacity?

MR GRIFFIN: 

Yes.

BRENNAN J: 

And that is a very special circumstance of

diminution that may be applicable here but is
it anything in terms of principle?

MR GRIFFIN:  Well, it really does raise a question

of principle, as to whether it is appropriate

to value in such circumstances, by reference

to the cost of the housekeeping cost.

BRENNAN J:	Yes.
MR GRIFFIN:	Your Honours, we submit that the supporting

parent's benefit ought to be taken into account.

In dependency cases, gains are always offset

against losses and, if one is assessing the

pecuniary value of the loss of the deceased's

services in looking after the children, one

should offset against that, a government benefit

that was awarded to him on account of the fact

that he was looking after children.

BlT16/l/SH	36	27,6/89
Nguyen(2)

BRENNAN J:	Do you have a reference to the prov1s1ons of the SOCIAL SECURITY ACT under which that
benefit is paid?

MR GRIFFIN: Yes, Your Honour. Whilst that is coming,

our learned friend referred Your Honours to

section 15C(d) of the COMMON LAW PRACTICE ACT

which states that:

There shall not be taken into account:

(d) a sum paid or payable on the death

by way of pension, benefit or allowance

under any law of the Commonwealth -

and so on and our simple point about that is

that the supporting parent's pension that the

plaintiff widower received in the present case

was not a sum paid or payable on the death by

way of pension, benefit or allowance. It is
true that the sum was paid after the death but,
unlike, for example, a widow's pension, it was

not a pension that was payable on death. It

was a pension payable because the plaintiff widower

looked after children.

Your Honours, supporting parent's benefits

are provided for in section 83AAA of the SOCIAL

SERVICES ACT, introduced in 1977 by Act No 159

of 1977 and it provides, in effect, inter alia,
for a father of a child to be able to obtain

the benefit and supporting mothers are also

entitled.

MEHMET's case, Your Honours, to which our

learned friend referred, is a clear authority

for supporting the proposi~ion that such a benefit

ought to be deducted. MEHMET's case is (1977)

2 All ER 529. In that case, having given up

his work to look after the children, the husband

received a government benefit called a supplementary
benefit.	By the time of trial, he had received

£4197 by way of that benefit and Deputy Judge Neill

held that that sum should be deducted from the

dependency award. At page 538, he drew a distinction

between such a benefit in a dependency case on

the one hand and a personal injuries case on
the other and he said that the benefit in that

case was:

not one of the benefits which s 2 of the

FATAL ACCIDENTS ACT 1959 allows the court

to ignore in balancing dependant's gains

against losses.

We submit that the general process here is quite

different from the process of deducting or not

deducting government benefits from damages that

BlT16/2/SH 27/6/89

37

Nguyen(2)

are awarded in personal injuries cases. Here,
one is considering a quite distinct question;
namely, the question of the gains and losses

that a plaintiff in a dependency action has had

as a result of the death of the deceased.

That brings me to various factors referred

to by Mr Justice Thomas, starting at the foot

of page 144 of the record. The first one is

one that Your Honours may or may not see as a

question of principle. His Honour was of the

view that - at page 144 - this was a case of

shared responsibility in relation to domestic
work. It was not a case in which, according
to the evidence, the wife did it all and this,

then, is provided as a reason given by His Honour

why it is not appropriate to apply the domestic

rate. If Your Honours need the evidence on that

point - - -

BRENNAN J: This is, clearly, an application problem,

is it not?

MR GRIFFIN: It probably is, Your Honour, yes, and I do

not press it as a question of principle if Your

Honours do not see it as such, but it is the first

discounting factor to which Mr Justice Thomas

referred.

BRENNAN J: Well, as I understand what His Honour was

saying, it is that services which were lost were

not the full housekeeping services but only some

of the housekeeping services.

MR GRIFFIN:· Yes, that is right. It probably does not

raise any question of principle. The second

that he deals with is the question to which our

learned friend referred, namely, the issue identified

in KOVAC V KOVAC and CARRIC V THE COMMONWEALTH

which really identify differences between services

on the one hand, with services provided by a	performed gratuitously by a member of the family,
housekeeper or an outsider on the other ~nd the
identified matters are really broadly dealt with
in that judgment of Mr Justice Samuels to which
I have already referred the Court, the general
thrust being that there are certain incidents
of family life that ought not to be ignored in
this process and the notion that, when an accident
of this kind occurs, everything becomes compensable
is not to be encouraged.

The next matter to which Mr Justice Thomas

referred and which I have also dealt with is

that question raised by Mr Justice Derrington

in the VESELINOVIC case; namely, when one is

using the cost of housekeeping services as a

starting point for the purpose of assessing a

BlT16/3/SH	38	27/6/39
Nguyen(2)

loss in a domestic situation, whether it is
correct, by way of comparison, to say that the

person performing the services in his own home

obtains a considerable benefit as a result of

doing so.

(Continued on page 40)

BlT16/4/SH	39	27/6/89
Nguyen(2)

MR GRIFFIN (continuing):  There are features, of course,

which indicate that at least to a certain extent

that must be the case. For instance, agency fees

and travelling fees must, of course, be ignored,

if one is valuing the services of someone who is

performing them in one's own home, but should it go
further than that and recognize that if one is
performing occasional services in one's own home

that the valuation of those services is vastly

different from the cost of bringing someone in to perform the services. If something has to be

done every half an hour, for instance, and it is
something which is not of any great moment, a

person already in the household can do that quite

readily and without much inconvenience, but to have

that done commercially, you would have to bring

someone in and pay him on an hourly basis,

notwithstandin~ that he was only going to actually

do something e1ery half hour.

There is a clear distinction between the two

and what Mr Justice Derrington says in VESELINOVIC

is that the first situation should simply be

compensated on the footing that the services are
being carried out by someone in his own home, so that

the true measure is the cost of getting someone to do

that commercially but in an equivalent situation;
that is to say that the commercial cost that would Je

charged by someone in his own home for doing those

services. That is, in effect, the point that

Mr Justice Derrington makes and Mr Justice Thomas

took that up and said that that was equally
applicable here.

In our submission, those principles that have been recognized in those cases are equally applicable

to the dependency situation. They are really matters

of common sense that one must reach when one

endeavours to assay the task of working out the

applicability of the housekeeping rate to domestic

services which are carried out by a person in his
own home.	The other matter was the question of the
wife's support in the future.	I do not think that

there is really any need for Your Honours to concern

yourselves about that in the light of the fact that

Your Honours are only looking at matters of principle because it seems quite clear that the master erred

in failing to deduct in relation to the future on

account of the deceased wife's own support.

We have nothing further, if the Court pleases.

DEANE J:  Mr Griffin, could I divert you for a moment. The

Full Court held they were bound by SEYMOUR and

WILLI.Ai.~S V FLEMING. Is there any other Full Court

decision that was supposed to have bound them,

because in SEYMOCR there were no children and i~

WILLIAMS V FLEMING the Full Court made it quite

B1Tl7/l/HS	40	27/6/89
Nguyen(2)

clear that a critical factor was that there were

no children to be looked after.

MR GRIFFIN:	Yes.
DEANE J:	Now, that being so, why did either of those

decisions apply to this case where there were
children that had to be looked after?

MR GRIFFIN:  Certainly that distinction does emerge but

SEYMOUR's case was always taken as establishing

the proposition that unless the widower either had

engaged or intended to engage a housekeeper, then

services of a housekeeping nature were not compensable

in a dependency case.

DEANE J:  But in WILLIAMS the learned trial judge made it

quite clear that the case turned on there being no

young children and the Full Court quoted that

extract from his judgement as explaining their

decision and went on to stress that it was a case where it was simply a matter of a husband looking

after himself.

MR GRIFFIN:  Yes. That was not seen as the significance of

WILLIAMS. Where WILLIAMS was seen as significant

was that it decided that SEYMOUR V BRITISH PAINTS was not inconsistent with GRIFFITHS V KERKEMEYER.

DEANE J:  Yes, I follow that, but if you look at the Full Court

decision in WILLIAMS it is really saying, "This is a

case where it would not be reasonable for the husband

to bring in a housekeeper to look after himself".

MR GRIFFIN:  Yes, so that damages would not be payabl~ in

these circumstances in any event.

DEANE J:  It seems to me that it has nothing to do with this

case, apart from the effect of GRIFFITHS, and so on.

MR GRIFFIN:  Yes. I think that is right, Your Honour.

BRENNAN J:  Thank you, Mr Griffin. Anything in reply, Mr Jensen?

MR JENSEN:  Your Honours, I have nothing in reply. May I

hand up the respondent's synopsis of argument in
the Full Court as the objection I took seems still

to be a live issue?

BRENNAN J:	Yes, Mr Jensen.
MR GRIFFIN:	Your Honours, might I be heard on that?
BRENNAN J:	Yes, Mr Griffin, I would think so.
MR GRIFFIN:	First of all, in his submissions my learned friend contended that this aware can be supported

B1Tl7/2/HS	41	27/6/89
Nguyen(2)

inter alia on the ground that there was a

discrepancy of $17,505 between the supporting
parent's benefit that the plaintiff obtained because

he looked after the chi:dren on the one hand, and the married employment benefit that he would have

received had his wife been alive.

In answer to that we say that we are entitled

to contend that such a discrepancy ought not to be

brought into account and as part of that contention

we ought to be able to say that the supporting

parent's benefit itself ought to be taken into

account in diminution of damages. Secondly, in

the Full Court, as I recall, nothing was made of

the fact that the plaintiff was in receipt of

government benefits except in the context of the
general argument that it was unrealistic and

inappropriate, at least in relation to the past, to

value the damages in this case by reference to the

cost of housekeeping services, but the primary

question before the Full Court, as Your Honours now

well know, was the effect of SEYMOUR's case.

In setting aside SEYMOUR the majority did net

consider the question of damages at all and it ~s

simply a matter which goes to the proper assessmµn~
of damages and in those circumstances although ~~

is true that it was not specifically put to the

Full Court that the pension ought simply to be

deducted, none the less that point should be open

at this stage.

BRENNAN J:	Yes.
MR GRIFFIN:	So far as overlapping is concerned, the question

of overlapping only arises when one knows how da~a~es

are going to be approached and, in our submission,

there is no substance in the point that our frier.d

takes in relation to overlapping. All of these

matters were before the Full Court.

BRENNAN J:  Thank you. Mr Jensen, that interposition by you

tendering that document was in order to make up something

you wished to say in your principal argument.	Have
you anything to say in reply?

MR JENSEN:	No, Your Honour.
BRENNAN J:	The Court will consider its decision in this

matter.

AT 4.25 PM THE MATTER WAS ADJOURNED SINE DIE

B1Tl7/3/HS	42	27/6/89
Nguyen(2)