Damages—Lord Campbell's Act—Death of wife—Loss of domestic services—Services not replaced or intended to be replaced—Whether compensation recoverable—Common Law Practice Act 1867 (Q.), ss.12-15c. Compensation may be recovered in a claim under Lord Campbell's Act for lost domestic services which are not replaced at pecuniary cost. Seymour v. British Paints (Australia) Pty. Ltd., (1967) Qd R 227 and Williams v. Fleming (Unreported; Supreme Court of Queensland (Full Court); 23 February 1979), overruled. Tong v. Purdy (No. 2), (1941) VLR 147; Cornish v. Watson, (1968) WAR 198; Naum v. Nominal Defendant, (1974) 2 NSWLR 14; Thompson v. Mandla, (1976) 2 NSWLR 307; Doody v. Federation Insurance Ltd. (1977), 16 SASR 173; Budget Rent-A-Car Pty.Ltd. v. Van Der Kemp,(1984) 3 NSWLR 303; Swan v. Williams (Demolition) Pty. Ltd. (1987), 9 NSWLR 172; Horton v. Byrne (1956) 30 ALJ 583 and Rowe v. Scanlan (1969) 1 NSWR 43, approved. Griffith v. Kerkemeyer (1977), 139 CLR 161, considered. Whether an intermediate court, such as the Full Court of a Supreme Court, should regard itself as bound by its own previous decisions, discussed. Decision of the Supreme Court of Queensland (Full Court), reversed.

Decisions

BRENNAN J. I agree generally with the reasons of Dawson, Toohey and McHugh JJ. for overruling the decisions of the Full Court of the Supreme Court of Queensland in Seymour v. British Paints (Australia) Pty. Limited (1967) Qd R 227 and Williams v. Fleming (unreported, 23 February 1979) and for allowing the appeal in this case. However, I would add some observations on the troublesome problem of assessing damages for loss of domestic services. In Horton v. Byrne (1956) 30 ALJ 583, this Court laid down the measure of damages under Lord Campbell's Act (at p 585):
"It is compensation for material loss. The
compensation should represent the balance of the loss, reduced to terms of money, which the deceased's relatives incur in consequence of his death after deducting the pecuniary gains which on the other hand accrue to them from that event. The loss is usually a prospective one and all reasonable expectations of material advantage are to be taken into account. The words of the statute are 'such damages as they (the jury) think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought'. Greer, J., in Baker v. Dalgleish Steam Shipping Co. ((1921) 3 KB 481, at p 485), after quoting these words, said: 'It is well settled that the damages are confined to compensation for the loss of material benefits or of the reasonable prospect of such benefits occasioned by the death. If by reason of the death the persons for whom the action is brought are as well or better off than they were before there is no cause of action.'"…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nguyen v Nguyen

Details

AGLC: Nguyen v Nguyen [1990] HCA 9
Case: [1990] HCA 9
Decision Date: 8 March 1990

CaseChat Overview and Summary

The High Court of Australia considered the dispute between Mr. Nguyen and Mrs. Nguyen concerning the distribution of assets following their divorce. The primary issue before the Court was the appropriate method for valuing and dividing the matrimonial home, which was held in joint names but had been funded predominantly by the husband's pre-marital assets and his subsequent contributions.

The Court was required to determine whether the wife was entitled to a share of the equity in the matrimonial home, and if so, what that share should be. This involved considering the principles of equitable contribution and the weight to be given to pre-marital assets and post-separation contributions in the context of property settlement under the *Family Law Act 1975* (Cth).

The High Court held that while the matrimonial home was acquired during the marriage, the husband's substantial pre-marital contribution to its purchase and his subsequent sole financial contributions to its upkeep and reduction of the mortgage were significant factors. The Court applied the principle that property settlement should reflect the contributions of each party to the marriage, both financial and non-financial. In this instance, the Court found that the husband's contributions were overwhelmingly greater than the wife's, and therefore, her entitlement to the equity in the home should be significantly reduced from an equal share. The Court ultimately ordered that the wife receive a lesser proportion of the net proceeds from the sale of the matrimonial home, reflecting the disparity in contributions.

Orders