Roads & Traffic Authority of NSW v Jelfs

[2000] HCATrans 102

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S111 of 1999

B e t w e e n -

ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES

Applicant

and

DENNIS JELFS

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 MARCH 2000, AT 11.32 AM

Copyright in the High Court of Australia

MR D.J. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR P.R. STERNBERG, for the applicant.  instructed by I.V. Knight, Crown Solicitor for New South Wales)

MR D.A. WHEELAHAN, QC:   And I with MS M.L. SNEDDON, for the respondent, your Honours.  (instructed by John G. McDonald & Partners)

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, this application, if I can say one thing first, it is concerned with the award which appears at page 20, line 50, of $337,593, the last item before the total on the page.  The real question, your Honours, is whether it was an appropriate course to award that sum without any deduction at all. 

Could I just say a couple of things about it.  Your Honours, the award was made on the basis that the respondent’s wife, had she lived, would have spent 20 hours a week on the care of the respondent and that, accordingly, an amount equal to the commercial cost of obtaining services should be the basis of quantification.  Your Honours, could I just pause to say it was not in dispute that at the time of her death the period of 20 hours per week was an appropriate estimate, and the second thing is that there was not any argument about what were appropriate commercial rates.

Your Honours, as Justice Deane said in Nguyen v Nguyen (1990) 169 CLR 245 – yours Honours, could I say I think your Honours may have been given - - -

GLEESON CJ:   Yes, we have that.

MR JACKSON:   - - - may have been given copies of that, however, which are in the computerised form.  Can I give your Honours copies from the Commonwealth Law Reports.

GLEESON CJ:   Thank you.

MR JACKSON:   I was going to refer to the last paragraph on page 256 and I wanted, at the end of the paragraph, to refer particularly to the last sentence in it where his Honour said:

Where the surviving spouse was the sole breadwinner, an award of damages for loss of gratuitous services will only be justified if the value of those services exceeds the benefit of being relieved of any obligation of financial support.

Your Honours, that is one passage.  The other passage to which I wish to refer is one which one sees in the joint reasons of Justices Dawson, Toohey and McHugh at page 265 where their Honours counselled against the automatic translation to damages of the cost of outside help.  Your Honours will see that in the first new paragraph on the page, about point 3, and the passage goes through to the end of that paragraph.

KIRBY J:   Which begins “In evaluating”?

MR JACKSON:   Yes, your Honour, “In evaluating”.  The point that I would seek to make, your Honour, if I can put it very shortly, is this, that in this case the respondent’s evidence, as the Court of Appeal said at page 41, in paragraph 29, the last line on the page:

was that he had spent 3-4 hours a day, on most days, doing those things that his late wife had previously done for him.

And, your Honours, they were – and it is the reference in the appeal book, page 144, to which their Honours refer, is, if I could quote:

cooking, cleaning, attending to the payment of bills and other matters of a domestic type.

Your Honours, we would simply seek to say those things would have been for her benefit as well.  Some deduction should have been made.  It is necessarily imprecise to say – one is in an area that is necessarily imprecise.  Our submission is that it should have been of the order of a third or a quarter but it was not right for there to be no deduction and establishes a precedent, your Honours, that will be of significance in cases of this kind.

KIRBY J:   I wonder if that is a correct principle.  It is true that she was getting the benefit for herself from her own housework but looking at it from the point of view of his loss and the damage that has been done to him, he has lost the benefit of her doing it and, therefore, the fact that she was getting for herself, in a sense, is out of the equation in a case which is concentrating on the damage to him.  There may not be a logical fallacy there but it just strikes me as a bit fallacious to say you have to reduce that because some of that was for her benefit.  He says he spends three to four hours a day.  One can understand that.

MR JACKSON:   Yes, he spent three to four hours a day doing the things that she had done for him.

GLEESON CJ:   But the critical passage in the reasoning is at paragraph 32, is it not, on page 43 of the application book?  Where is the error in that?

MR JACKSON:   The error, in our submission, is that your Honours will see that the point that is being addressed there is to say:

I see no error in the decision to treat 20 hours per week as a constant in the circumstances of this particular marriage.

The point we would seek to say is that it may be fine to say that the 20 hours per week is an appropriate number of hours if one is looking at the time but inherent in what is being done is that the activities that are being carried on are ones that do not just benefit – they benefit her as well.

GLEESON CJ:   The last seven words of that paragraph seem to detract from the importance of the decision as a matter of general principle.

MR JACKSON:   Your Honour, that is simply the way in which it is put addressing the argument but the general principle underlies what has been said there.  Your Honours, those are our submissions.

GLEESON CJ:   We do not need to hear you, Mr Wheelahan.

MR WHEELAHAN:    I am sorry to hear that, your Honour.

GLEESON CJ:   It might be to your client's advantage.

KIRBY J:   Do you insist, Mr Wheelahan?  Do you insist?

MR WHEELAHAN:   No, your Honour.

GLEESON CJ:   The Court is of the view that the decision of the Court of Appeal in this case turned on the application of well-settled principles to the facts of the case and that there is no reason to doubt the correctness of the decision.  In those circumstances, the application should be dismissed.

Can you resist an order for costs?

MR JACKSON:   No, your Honour.

GLEESON CJ:   The applicant must pay the respondent's costs of the application.

AT 11.40 AM THE MATTER WAS CONCLUDED