Smith & Anor v Ross

[1988] HCATrans 122

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl22 of 1987

B e t w e e n -

RAY SMITH and RAY SMITH TRACTORS

PTY LIMITED

Applicants

and

WILLIAM NOEL ROSS

Respondent

Application for special leave to

appeal

MASON CJ DAWSON J TOOHEY J

Smith

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 JUNE 1988, AT 10.51 AM

Copyright in the High Court of Australia

SlT4/l/RB 1 10/6/88

MR R.J. ELLICOTT, QC:  Your Honours, I appear with MR A.S. MORRISON,

for the applicant. (instructed by P.J. McGahen)

MR D.F. JACKSON, QC:  May it please the Court, I appear with

my learned friend, MR C.T. BARRY, for the respondent.

(instructed by McClellands)

MASON CJ:  Mr Ellicott.

MR ELLICOTT: Your Honours, this matter involves two applications,

one to extend time, the other for special leave. The

application to extend time is in circumstances where

the time for appeal expired on 8 September last year

and application for special leave was not made until

18 November, I think, so it was some two months out

of time. The matter is dealt with at page 7 of the

appeal book and in that it is indicated that it is a Dl9.tter
which the Government Insurance Office of New South Wales

took time to consider the matter, after discussing the matter with counsel, to see whether it was a matter in

which it was proper to trouble this Court as a matter

that involved principles which fell within the special

leave area.

As a result of that consideration, they decided

that they would trouble this Court and they put on

an application. In those circumstances, we ask that

the Court extend the time, but no doubt the Court at

the same time would want to know what those special

grounds are.

MASON CJ: Well, I think so, otherwise your submission seems to

indicate that the Court ought to extend time as a matter
of course merely to enable the Government Insurance

Office to give extended consideration to an appeal.

MR ELLICOTT:  No, Your Honour. I hope those grounds will

indicate that this is an important matter that warrants

the intervention of the Court. Your Honours,

simple facts are often a good vehicle for laying down

questions of principle and the facts here are

extremely simple. If Your Honours have no doubt read

the papers - - -

MASON CJ:	They generally are the best vehicle, are they not?
MR ELLICOTT:	Yes, and maybe sometimes when principles are

complicated they need to be complicated, but in this

case they are very simple and the principles involved

are, we would submit, such that if we are right in our

submission, then this Court ought to take up the matter

and express the principles for the guidance of those

who deal with the cases involving negligence.

.c,

1.L is our submission that ·· ·· - ·

MASON CJ:You are not suggesting those who are ignoring the

principles.

SlT4/2/RB	2	10/6/88
Smith

MR ELLICOTT:	Your Honour, I would submit that if we are right that those principles have either been ignored or are
not clear; they are not sufficiently clearly stated,
because in this case it does appear that our client, the
defendant, was driving a truck in what, in effect, was a
college campus; had the right of way; on a 21-foot
roadway, driving a truck; he was driving at 30 kilometres an hour and he slowed down to 10 - that seems to be the
admitted fact - and the plaintiff, the respondent,
assumed from that, even though he had a give way sign
in front of him and had to give way on the right and
was not admittedly taking proper care and keeping a
proper look-out, assumed from that that the vehicle was
going to stop.  So he proceeded into the intersection
and obviously there was an accident, a very unfortunate one from the point of view of the respondent, because he
is now a paraplegic.

Those facts, simply stated, we would submit are

not a case for finding negligence in any circumstances against the defendant and if that is so, and of course I can take Your Honours to the facts, then those who

are involved in this decision,and perhaps others, are

in need of guidance in relation to what the appropriate

principles are. Not because the principles as to

negligence have not been widely stated and dealt with

by this Court on many occasions, but it may be that there

is a misapprehension of what it is that would enable it

to be said that a driver was able to assume that another

was not going to exercise his or her right of way. In

this particular case, it looks as if what happened was

that the defendant slowed - he may have slowed for a

number of reasons. We would say that is unimportant, but

overtly he was acting quite carefully; indeed, you would

have to applaud him for his care because he slowed down

at this intersection where he had a right of way - did

not stop - - -

DAWSON J:  How is this a matter of principle, rather than a.·matter

of fact?

MR ELLICOTT:  It may sound a matter of fact, Your Honour, but- - -

DAWSON J: It does.

MR ELLICOTT:  It may sound that, but the reason is that it was

said that from those simple facts the plaintiff was

entitled to assume that the defendant was going to stop.

Now, before - - -

DAWSON J:  You did say there was no evidence on which negligence

could be found?~

MR ELLICOTT:  Yes, I am saying there is no evidence on which any

negligence can be found in those circumstances. It just

could not possibly be negligence and the only

SlT4/3/RB	3	10/6/88
Smith

explanation of why the courts below have gone wrong

is that they have not paid sufficient attention to

a - it might be a difficult question that needs

analysis, namely when is it that one driver is entitled

to assume that another driver is going to forgo his

or her right of way. Now, in this case, did not put up

a hand, did not wave him on, slowed down to 10 kilometres

an hour, which is in a university or college campus on

a 20-foot road is not actually very slow, it might be

at an ordinary intersection but it is not in a college

campus, and on a 20-foot roadway, and he slows down but

he down not stop. Now, just because an act by one is

capable of being interpreted as evincing an intention

to stop does not make that assumption a valid assumption.

That, we would submit, is the point here, that you

cannot assume that another driver is going to give way

or give away to a person on his left-that is not

exercise his right of way - if all he does is simply

slow down. He has got to do something which would

constitute a clear indication to a reasonable person

that that person who was, at that point, not giving way

to a give way sign, not giving way to his right and not

keeping a look-out, it would have to be something that

overtly indicated to that person that he, in this case

the defendant, was giving up his right of way. And it

is in those circumstances that we would submit this is

a clear case of an extraordinary finding of negligence

and it involves an important point.	The facts are
simple.	One does not need to stress the fact that at

this very moment thousands of vehicles around the

country are approaching intersections and that these

are rules of the road and this question of principle can

not only apply at these types of intersections but at

T-intersections and these principles no doubt could

apply in other cases where people have rights which they might

be entitled to exercise but they may be indicating,

either on the10ad or in some other circumstances, but

particularly on the road, that they are not going to

exercise those rights.

Now, what do they have to do, is the question, we

would submit?

DAWSON J:  If this had been a jury trial would you not say the

judge ought to have taken it away from the jury?

MR ELLICOTT:  Yes, Your Honour. It could not possibly be

negligence.

MASON CJ:	By the way, this is not the only head of negligence alleged or found against your client, is it? I thought
that the courts below concluded that your client, apart
.C1:c.d,-, c...S ;_~: ~,c:..E. issuing this implied invitation to the plaintiff to stop, failed to keep a proper look-out and
was negligent in accelerating when in the circumstances

S1T4/4/RB	4	10/6/88
Smith

he should have stopped altogether. Now, I know there

is a difficulty in terms of the second of those two

findings, because there may be some problem about

causation, but you do have to face up, do you not,
to a finding of failure to keep a proper look-out and

a finding that he was negligent in accelerating?

MR ELLICOTT:  Your Honour, the finding of - any finding of a

failure to keep a proper look-out, we would submit,

is irrelevant to the question. It just does not touch

on the question of negligence because the question of

negligence has to be overtly considered; a driver

approaching an intersection with a right of way,

slowing down; another driver assuming from the slowing

down - and that is the point that is relied on for the

reason why the plaintiff then proceeded into the

intersection. He was not conscious, if there was a

failure to keep~ proper look-out, of the defendant

having not kept a proper look-out. That is a finding,

of course, that we would want to challenge in an appeal.

MASON CJ:	But assuming that by stopping you could avoid the accident, then failure to keep a proper look-out would
have been extremely relevant, even if the plaintiff had regarded the defendant's slowing down as an
invitation to proceed across the intersection.
MR ELLICOTT:	But, Your Honour, there is no suggestion that the

failure to keep a proper look-out was something that

happened at the point of the intersection. That was

something to do with his driving along the road and

wondering where he was going to find a particular

location - probably to deliver some goods - and he was

looking for some signs, but that was on approaching the

intersection. But there is no suggestion that he failed

to keep a proper look-out vis-a-vis the actions of the driver of the motor cycle, the plaintiff, once he got to the intersection. That is not the failure that is held against him because, as he moved into the

intersection the evidence is he accelerated and he

accelerated obviously in a hope that he could avoid this

accident which he had not caused, that he could avoid

the damage - - -

MASON CJ: What about the finding of acceleration? What do you

say about that?

MR ELLICOTT:	Say about what?
MASON CJ:	The finding that he was negligent in accelerating.
MR ELLICOTT:	Your Honour, what we would say about that is that

is a natural reaction on the part of the defendant to

a circumstance; that is to say that seeing that there

coti:.i.d be a collision li.'e 'tried to avoid it. 1fow, it is

a bit like - I do not know whether Your Honours remember

the case of BYRNES V SNARE, a T-intersection, and the

SlT4/5/RB	5	10/6/88
Smith

lady trying to avoid the accident, she was on the

highway, she veers off to the right in order to avoid

this person on her left and it was said that she was

negligent in doing that and this Court said that she

was only acting in an instinctive way to try and avoid

the accident and that is all that has happened in this

circumstance, that the defendant, going across the

intersection, seeing the thing about to happen, speeds

up in the hope that it will not happen. But it does

happen. And that was terribly unfortunate that it did

happen. But it was not an act of negligence, in our

submission, on his part.

Now, I do not know that I have to argue all those

matters but simply to indicate that there is a real question that there was no act of negligence on the defendant's part and that there is a question of public

importance involved in the fact that the principles

relevant to these matters, we would submit, need to be

clarified.

MASON CJ: What is the principle that needs to be clarified?

I mean, what is the proposition for which you contend that you say ought to be accepted by this Court and was rejected by the Court of Appeal?

MR ELLICOTT:  Your Honour, first of all there was no rejection

because there was no forensic consideration of the matter,

if I may put it that way. There was no intellectual

attempt to deal with this problem. It was just assumed
that because a person - that is the plaintiff - could

have interpreted an action as being an intention to

stop, that that justified a finding of negligence.

MASON CJ: Let us assume that the Court of Appeal directed their

intellectual attention to this, what is the proposition

that should have commenced their judgment with?

MR ELLICOTT: If they had, then they should have found that

a driver does not, you can say, is forfeiting his right

unless he indicates in an overt way that he is doing of way - a driver is not forfeiting his right of way so to a reasonable person. Now, by that, slowing down

could never so indicate. If he puts up his hand to stop,

conventional way of indicating you are going to stop, that

is fine .. Or, if by some device he is able to say,

come on, and waves the person on, yes, but under no

circumstances, we would submit, can a defendant be held

to be negligent where all he has done is overtly to

obey the rules of the road.	He comes to an intersection
and he slows down.	True, he has a right of way, and he

proceeds on, believing that the man on his left is

going to observe the rules of the road.

-~,

MASON CJ:  But is not that proposition impossibly wide? I mean,

a driver who is observing the rules of the road can

SlT4/6/RB	6	10/6/88
Smith

none the less see that by observing the rules of the road he is going to contribute to an accident, is he

not under a common law duty to take action that will

avoid the accident?

MR ELLICOTT:	Your Honour, I am not suggesting that, but the question is when does that particular point of time
arise. In this case, it did not arise until he is
into the intersection and the accident could not have
been avoided. That seems to be the evidence.

MASON CJ: Yes, but I am concerned at the moment with what is

the proposition of law that the Court of Appeal should

have embraced.

MR ELLICOTT:  I thought Your Honour put to me a question of fact

but the proposition of law is that which I have put,

that in principle a driver cannot be held to have

forgone his right of way unless he overtly indicates

what, to a reasonable person, would be an intention to stop and give that right of way - forgo that right of

way. And that, we would submit, is a principle which

can be applied and can be applied in many instances.

Just because - if Your Honours take the case that

I referred to - just because a woman who was driving along a highway and has a T-intersection on her left which she knows is dangerous, driving at 100 kilometres

an hour, a person comes gradually on to the road, just

because she knows that that is a dangerous intersection,
it does not make her liable for negligence because that
person decides, contrary to the rules of the road, to go

out on to the road, thereby forcing her to go on to the

other side of the road and aave a collision. The fact

is that if she had not gone on to the other side of the

road, there would not have been a collision, in that

particular case. But that is a good instance, we would

submit, of where a defendant driving a vehicle, and

driving within the rules of the road, is not required

to comply with some great standard imposed on them when

what they are doing is something they are doing lawfully.

And that was the case here.

MASON CJ:  The alternative view, of course, is that the Court of

Appeal impliedly accepted the proposition of law that you say should preface the discussion of the critical

question but made a mistake in concluding that what your

client did could be reasonably understood as an

invitation to proceed across the intersection. Now, if

that is the view of the Court of Appeal decision you do

have difficulty, do you not?

MR ELLICOTT·:  One would hope that if Their Honours were coming

r.0 thAt. r,np~l1.1.sion they would have saj cl ~omE=>.t:h,i.ng A.hout

it. But they do not even consider any such principle.

Can I take Your Honours to the part of the judgment

SlT4/7/RB	7	10/6/88
Smith

where I submit they - at page 29 from line 19:

He was cross-examined about a statement which

he made to the investigating police officer

that he was travelling towards the intersection

at about 10 kilometres an hour. He then

conceded that his speed may have been as slow

as that. Bearing in mind that he had

previously stated that he had slowed down on

approaching the intersection, his admission
that is speed may have only been 10 kilometres

an hour was of significance.

Well, they do not ask the question, 10 kilometres an

hour in a college campus. I ask Your Honours to ask

that question yourselves.

This became quite apparent when he, an experienced

truck driver, agreed that at 10 kilometres an

hour his truck could give the appearance to

other road users of slowing to a stop.

That is not an admission; that is a reasonable man

saying, yes, they might have formed that view. Then

further on - I will read the rest but the other part is

at line 19:

His Honour obviously found this portion of the

appellant's evidence difficult to accept and

it may have provided one of the reasons which

led his Honour to prefer to evidence of the

plaintiff's witnesses. It is unnecessary,

however, to determine whether this evidence

should or should not have been accepted in

the light of the appellant's admission that

he had approached the intersection at about

30 kilometres an hour, had then slowed to

10 kilometres an hour and that proceeding at

this pace he could have given the impression

to another road user that the truck was about

to stop.

Now, we would submit that that indicates an error

in law on the part of the Court of Appeal, when they

said, "could have given the impression to another

road user that the truck was about to stop". That

was taken from a statement by the defendant. He

agreed his truck could give the appearance to other

road users of slowing to a stop. Of course it could,

but that is not - the fact is it did not stop and the

fact is he did not do anything.overtly to indicate that

he was going to stop and that, we would submit, is where

they fell into error and that is where they failed to

"°t ,,	f'O~.~:i.nP.r .t:.1-:-e Y-""A. l _j 9 snA nf .• n.e.gJ igence in this case.
We would submit, Your Honours, that.al.one is an important ground which raises important questionsof principle of a

S1T4/8/RB	8	10/6/88
Smith

public nature that relate, not only to this case but to

other cases and that it is an area of the law that has

never been truly investigated, that is when is it that

it can be said that one person who has a right has

indicated to another that he or she is not going to exercise that right so as to enable the other to do

an act which it would not otherwise have been regarded

as lawful or non-negligent for that person to do.

Now that, we submit, is the area where this

Court ought to give some direction to the courts below.

MASON CJ:  But the problem though, Mr Ellicott, is this, is it

not, that immediately conjures up a vast variety of

factual situations. It seems impossible to give an

answer that will provide guidance and assistance

unless you are dealing with particular fact situations.

MR ELLICOTT:  Yes, but I said at the beginning, Your Honour, that

simple facts - and this is a simple case, there is no question about that, we can all contemplate it fairly

quickly - it is a good vehicle for expressing matters

of principle because if our submission is right, that

merely slowing to 10 kilometres an hour in these

circumstances is not negligent - if our submission is

right on that - then there is an occasion for this

Court to lay down principles for saying, well, what

is it that another driver will do which will indicate -
what is it that a driver will do that will indicate to

another driver that he is not going to exercise a right of way. And we would submit that that can be stated in a way which would be of great assistance, not only to the

judges who found what we would submit is an extraordinary

result in this case, but also to courts who deal with

traffic cases and the like, who may glean from this

that it is a basis for saying that a person who acts

quite properly on the road is to be found to have acted

negligently.

Now, that is one question. Allied with that is

the question of contributory negligence and really the

as does through the facts in relation to the finding	same sense of extraordinary finding reflects on that
of negligence.

MASON CJ: It would carry through into apportionment.

MR ELLICOTT:  They carry through and I do not think I need to

say any more than say that we would regard, with great

respect, and submit that that particular proposition

is equally a matter of importance in a case such as this.

TOOHEY J:  But are you not in a difficulty there, Mr Ellicott?

If you look at page 31, line 1~, it is said:

In the Notice of Appeal, and in the written

submissions, the appellant challenged

SlT4/9/RB	9	10/6/88
Smith

his Honour's deduction of only 50% .....

However, counsel did not in his oral

submissions maintain that challenge -

MR ELLICOTT:  Yes, Your Honour, I appreciate that apparently

is what happened below and however, the Court of Appeal

did rule on it and it is a question which would, we

would submit, be a proper ground for appeal if the

first ground is a proper ground for appeal.

Now, the remaining ground relates fundamentally

to a question of damages and fundamentally the cost of
future care. In this case, again the facts are simple.

The respondent's mother cared for the respondent before

the accident. He lived in the family home with his

mother, he was not married.

DAWSON J:	He was 19, was he not, or something?
MR ELLICOTT:	Yes. She did all the things that you would expect

a mother to do for a son of 19. She made the bed, she

cooked et cetera, cleaned the house. After the accident

she did fundamentally the same things. She cooked the

meals, made the beds, cleaned the house and he did not

become involved in that before the accident and

apparently did not become involved in that after the

accident. Now, being a paraplegic, he does have some

problems with bed sores, with the urinary tract and with

bowel, but he is a person who had been training in

martial arts and he takes a keen interest in paraplegic

games and he is, in that sense, relatively fit. That is

to say, he is able to do most things for himself at the

moment, so those facts are, as I say, fairly simple.

Now, Your Honours will be familiar with the case of GRIFFITHS V KERKEMEYER and Your Honours will recall

that that overruled an earlier case and it applied a proposition that in relation to voluntary care, that

could be the subject of compensation. But the case

itself did not deal with a case such as this. That was

an extreme case of, I think, a quadraplegic, where the

person was very much a vegetable and the person had to

be cared for throughout the whole day and it was a case
dealing with nursing care. This part of this case deals

with family care, that is to say the provision of that

T4 assistance which a person gets from the family.

At page 36 one finds the relevant matter dealt

with at line 7:

The next figure that was the subject of complaint by the appellant was the amount of

$227,308 for future care. The course of reasoning

_which 1/78.P BB.i r1 :t-r\ J .o.-.:ic1 ro P rlnmon~tration of

error took this course. There was evidence led,

which his Honour accepted, that prior to the

SlTS/1/RB	10	10/6/88
Smith

accident the plaintiff was looked after

by his mother. Since the accident he has

been looked after as before. The proper

approach, therefore, dictated that the

services of his mother provided in the way
of ordinary housekeeping destroyed any

suggestion of a present need for housekeeping

assistance or nursing attention and would

continue to destroy that need for perhaps

three to five years.

So it was a limited submission but it was based on the

proposition that the injury had not caused the need.

For this reason His Honour's approach, which allowed

him differential figures for the next 14 years, the

following 15 years and finally, the remainder of his

life was erroneous in that he should have delayed the

connnencement of the period during which the need was

shown for three to five years. Now, His Honour says,

and this was adopted by the other judges:

This approach might have some validity, if this

was truly a claim under GRIFFITHS V KERKEMEYER.

There was indeed such a claim for the past but

that claim was the subject of agreement.	The
future, however, presented another problem.

Dr. Yeo, whose evidence was accepted, attested

to the respondent's need for domestic help and

nursing assistance in the future. His Honour

simply accepted that evidence, which included

details of the need. His Honour then proceeded

to assess the cost of meeting the need, which

had been spelled out by Dr. Yeo, by applying -

a table.

In these circusmtances I do not understand the basis upon which there should be a conclusion that the need should not be found to exist for the first three to five years

after the date of trial. The fact that his

mother may meet that need for a time - and

this is perhaps questionable - is, in my view,

beside the point. What his Honour was concerned

to compensate was the accident-caused need for

domestic assistance and nursing assistance in

the future and whilst the circumstances of the

past might in particular cases have a bearing

on the evaluation of the need, I do not quite

understand how that could be so in this case.

Now, Your Honours, we would submit that that is a

fundamental failure to understand the propositions in

C";RIFFJ'T:HS V KJRKF.MF.YF.~" ,9n<1 5 t". c1.J so is a failure, we

would submit, to apply those principles to family care

situations. And there have been cases, both in this

SlTS/2/RB	11	10/6/88
Smith

Court and another one in South Australia to which I

can refer Your Honours, where the court has approached

the question of damages in relation to family care on
the basis of what extra care did the accident occasion?

What did the injury occasion? What extra need for care

did it occasion? And if before the accident the person

injured was receiving benefits and care within the

family, say a husband, and after the accident continued

to receive that care, then that was not compensated for.

DAWSON J:  I find that difficult to understand. Why is not a

19-year-old or 20-year-old entitled to be in an

independent position if need be?

MR ELLICOTT:	Your Honour, because - - -
DAWSON J:	I mean ..... before the accident.

MR ELLICOTT: But, with great respect, that is not the issue,

because the question is what need, what need did the

injury occasion to that person, to this plaintiff,

this respondent? It is not a question of human rights

or a question of the rights of people to be independent,

it is a question of whether - - -

DAWSON J:  What need did he have to enable him to live his life

as he did before?

MR ELLICOTT:  But it is a need based on what he would want to

do in the context in which he lived and he lived in a

home with his mother, his opportunity to get married

had gone, he was going to stay in that home, and he

was obviously going to stay there for a period. One

does not take the person out of that persons' family

circumstances and say, oh well, we will award that

person damages on the basis that that person might want

to set up home by himself. That, we would submit, is

not - - -

DAWSON J:  By the same token, if he was not living at home

before the accident you could say, well, you are able

to go now and live with your mother, no damages.

MR ELLICOTT: Well, Your Honour, with great respect, no, you could not say that. What you have to do is look at

the particular plaintiff and say, what is the particular

plaintiff doing? What need has this accident occasioned -

DAWSON J:  You look at the particular need rather than the

particular plaintiff.

MR ELLICOTT:  Yes, the particular need. Well, what is the

particular need? The particular need is that this
p~r~on, as a result 0f.~he acci~ent ~ and that is an

important thing, as a result of the injury - will need

care later on but during the period when it can be

SlTS/3/RB	12	10/6/88
Smith

reasonably expected that his mother can continue to
provide the service that she previously provided, then
during that period the injury has not occasioned the

need. That is one way of putting it.

DAWSON J:	Mr Ellicott, if he had not been living at home and was compensated for nursing services and so on, and
then went back to live at home, you would say he was over compensated.

MR ELLICOTT:  No, Your Honour. The decision has to be made when

the case is being tried and it has to be made in the context of awards of damages and it is only a way of

getting at the overall total, and obviously, when you

get to that total you might reduce it or you might not think it is enough. But in applying the principles of

GRIFFITHS V KERKEMEYER one is not instructed in relation

to the area of family care to go beyond what is reasonable

in terms of damages and what is reasonable has to be

taken into account in terms of what would the husband,
say, provide anyhow, or what would the mother, say,

provide anyhow, or what would the wife provide anyhow? And unless one approaches it that way, then the

whole question of damages becomes multiplied and we are

trying to give perfect compensation, and that is not the

principle behind it. Now, Your Honours, in a case of

KOVAC V KOVAC - first, I perhaps should remind Your Honours of GRIFFITHS V KERKEMEYER, 139 CLR 168, Mr Justice Gibbs

as he then was said this:

However, in my opinion this Court should not

abandon the principle that a plaintiff whose

injuries have created a need for hospital or
nursing services cannot recover damages in
respect of that need (except of course for loss
of amenities or pain and suffering) unless the
satisfaction of the need is or may be
productive of financial loss. However it should

no longer be held that the fact that the

services have been and will be provided

gratuitously is conclusive of this question.

The matter should, as it were, be viewed in	two stages. First, is it reasonably necessary
to provide the services, and would it be reasonably necessary to do so at a cost? If so, the fu1filment of the need is likely to be productive of financial
loss. Next, is the character of the benefit
which the plaintiff receives by the gratuitous
provision of the services such that it ought
to be brought into account in relief of the
wrongdoer?

Now, that raises a question, and he says:

If not, the damages are recoverable.

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Now, that raises a very distinct question and it has

been taken up by the Court of Appeal in a number of

cases and it is illustrated by KOVAC V KOVAC, and it

not unlike an approach, for the purposes of this case,

to one adopted by Mr Justice Mitchell in South Australia,
and I will come to that. At pages 192 and 193

Your Honour the Chief Justice dealt with the matter, but at 193:

It is now recognized that the true loss if

the loss of capacity which occasions the need
for the service. In consequence the existence
of a legal liability to pay is not the dominant

consideration. Furthermore, the old view,

by insisting upon the existence of a legal

liability to pay as a condition of recovery in respect of the provision of the service,

threw up issues of fact which were not susceptible

of accurate determination. In relation to the

provision of voluntary services there is the

inevitable and intractable question: For how

long will the voluntary service be provided?

Now, that can be turned the other way to ask, if you

are going to ask the question, for how long will it be

provided, for how long will it need to be provided,

that is the need which has been occasioned by the

injury, and if there is a need which is being answered

already and will continue until a point of time, for
instance, when a mother might cease to give that need -

and it is a matter for the judge to assess it at the

time - then that is not a need. For how long will it

be provided, one would say - - -

DAWSON J: That is an extraordinary proposition, Mr Ellicott,

because the need is being met there is no need.

MR ELLICOTT:  I do not know whether it reflects upon the Court

of Appeal but it is an approach that Their Honours

have adopted in KOVAC V KOVAC, we would submit, in

the sense that they have said, picking up what the

former Chief Justice said in that case, well, you must
then ask the question:	is the character of the benefit

which the plaintiff receives by the gratuitous

provision of the services such that it ought to be

brought into account in relief of the wrongdoer?

Now, I think we gave Your Honours references to KOVAC V

KOVAC, (1982) 1 NSWLR 656, and could I, just to

demonstrate it, because I appreciate Your Honours do

not want to hear a full appeal on this matter at the

moment - - -

MASON CJ:	I almost thought we had, Mr Ellicott.
MR ELLICOTT:	Your Honours, this pari:icuiar -a.s·J:-l~Ct, I woula have

to take Your Honours to the case of KOVAC V KOVAC and I

may have to read some passages to convince Your Honours

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Smith

that there is a real question here.	(1982) 1 NSWLR 656,
at page 679 - - -

MASON CJ:  We do not have copies of it, Mr Ellicott.

MR ELLICOTT: Shall I just read it, Your Honours?

MASON CJ: Yes, read it.

MR ELLICOTT:  Your Honours, may I emphasize that what Their Honours

did was to pick up that question that Mr Justice Gibbs

as he then was expressed and the one thing that they

noted was that in GRIFFITHS V KERKEMEYER it was a case

of nursing services; it was not a case of family care.

So that was the first distinction. The second thing

was that they said that in approaching this problem you

did not forget the rules of compensation, the rules of damages and that the compensation had to be reasonable

in the circumstances. Now, this is what

Mr Justice Mahoney said at page 679:

But, granted that particular services of this "family life" kind satisfy the test of reasonableness in this sense, it is, in my opinion, proper to consider whether the

application of the GRIFFITHS V KERKEMEYER

principle and the award of the standard or

market cost of the gratuitous services

would be in the circumstances reasonable.

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

Gibbs J -

that is the question I have just read to Your Honours -

viz, whether the character of the benefit

is such that it ought to be brought into

account in relief of the wrongdoer.

In relief of the wrongdoer, that is to say should it be

deducted. Now, I put the proposition the other way as

well. I have said the need continued and therefore

you do not compensate it or that the need was not

created by the accident. But another way of putting it,

this is what Their Honours are dealing with, the other

way of putting it is to say: these are the family

services, they are going to be provided anyhow and it

is not reasonable to lay them at the door of the

wrongdoer. He goes on:

The kinds of circumstances which suggest the relevance of such a principle may be illustrated

by reference to the two decisions of this Court

to whi.~h I h.::ivi:> re.:f ~:r"l".'1'?.d. In JOHNSnl\l V KELEMIC

(1979) FLC 78,487, the plaintiff was a

quadriplegic. A claim was made by reference to what the husband did, eg, helping the plaintiff

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in and out of her wheelchair, and talking

to her and comforting her in the evenings.

The husband also did things which would be

part of what would be done by a nursing aide
employed to give home or hospital care, eg,
the turning of the plaintiff in bed several

times during the night. Each of these things

was directed to and was appropriate for relief

of the difficulties which arose from her need.

In BLOOMFIELD V BRAMBRICK (Court of Appeal, 17th August, 1979, unreported) the injuries had rendered the plaintiff nervous; she had

difficulty with certain types of heavier

housework; and she had difficulty in using

public transport unaided. In these things,

she was helped by her mother, who sat with

her when she was nervous, helped her with

the housework, and sometimes drove her to the

shops. The plaintiff was unmarried and lived

with her mother in her mother's home. These

difficulties were real difficulties and arose

from a need created by her injuries. In each

of these cases it was held that the GRIFFITHS V

KERKEMEYER principle did not warrant the

inclusion in the damages of the standard or

market cost of these services.

DAWSON J: That is a little difficult to understand but it must

be that once you are compensating for the need, the

only relevance of the way in which the need is being

met is to show what the need is and perhaps that is

all that is being said there.

MR ELLICOTT:  With respect, it is saying more than that because - - -

DAWSON J: If it does, I do not follow how it stems from

GRIFFITHS V KERKEMEYER.

MR ELLICOTT:  It stems because of the question that Sir Harry Gibbs

asked an<il that was:	is the character of the benefit
such that it ought to be brought into account in relief

of the wrongdoer, that is to say, should it be deducted?

Should the wrongdoer have to pay for it when it is a

service that is going to be provided within the context of

a home in any event? And this case of KOVAC by

majority applied that proposition and said, in effect,

it should not be. He goes on and says:

"In JOHNSON V KELEMIC, in an observation

with which Samuels JA expressed agreement, I

said the cost should not be allowed: 'It

was not suggested, either in evidence or in

address, that the husband or other persons

suffered or wou.1d suffer finAnr.5;:iJ 10!=:s h,r

reason of the provision of the.relevant .

services -

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same here with the mother -

Some at least of the services in fact

provided comprised, on the evidence,

substantially the kinds of things which

members of the family might be seen as

doing for disabled persons in the family

group, in the course of ordinary day to

day living, eg, the helping in and out of

the wheelchair, the talk and comfort

afforded to her in the evenings. But there

are some of the services which would be part of those things to be done by a nursing aide as part of the duties of home or hospital

care, eg, the turning the wife from time to

time whilst in bed. It does not appear from

the evidence that, were services of the latter

kind not provided by her family, the wife

would be likely to engage some person simply

to provide them for reward."

Now, I will not read on, but I hope that is sufficient

to indicate, so far as the Court of Appeal is concerned,
there is a real question. And whether one says it is a

case of no need being created in the relevant sense

by the accident or by the injury, or whether one says

this need should not be compensated for because it is
going to be, even though caused by the accident,

provided for by the family unit in any event and

therefore it is not reasonable that it be compensated

or held at the door of the defendant - whichever way one
puts it, so far as the Court of Appeal was concerned,

then that was a question which was an extension of

GRIFFITHS V KERKEMEYER and if this Court believes that

it is not an extension of GRIFFITHS V KERKEMEYER, then

KOVAC V KOVAC and a lot of other cases are lurking in

the books in New South Wales which suggest to the

contrary. And those matters ought to be laid to rest.

The case of CHRISTOPOULOS in South Australia I

shall very quickly refer to. It is (1978) 21 SASR 463.

This was a case of personal injuries in the course of

employment. At the foot of page 465 Justice Mitchell

said:

There is a further claim for damages for the

services rendered to the plaintiff by his

wife and by other members of the family
within the principle laid down in BECK V

FARRELLY, approved in GRIFFITHS V KERKEMEYER.

The plaintiff's wife prepares his bath and

assists him to bath and to dress. She said

that she was engaged five or six hours a day

in looking after ,her_ husbanc!t .. ~he lll.c;_y .. 12e _.

household duties but she is not engaged for engaged five or six hours a·day in dofng her

SlTS/8/RB	17	10/6/88
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five or six hours a day in looking after

the plaintiff. It is clear that, as is

usual with persons of Greek nationality of

the type of the plaintiff and his wife, the

plaintiff was never accustomed to doing any

household tasks.

Why they should pick on the Greeks I am not sure.

He was asked in cross-examination whether he could prepare a meal for himself and he said, "My wife prepares the food for me."

I then said to him, "You have never had to

get a meal for yourself in all your life?"

and his answer was, "Never."

Now I could go on and read that but really, what it says

in the end was that she was not going to compensate

because what happened before and what happened after

were the same. The need was not created. But the

learned justice regarded that as an extension of

GRIFFITHS V KERKEMEYER. That is no different to this

case and the proper approach to compensation, we would submit, would be for the court to look at the position

and say, "How long is it reasonable to expect that the
mother is going to continue to do these family care

tasks for the plaintiff?" and not to lay that at the

door of the defendant as they have.	They can do that.
It may be a difficult matter to assess.	The mother might

die but in all the circumstances, those are judgments

courts have to face in any event on questions of damages.

All sorts of eventualities may occur, but it is a
task that the court could undertake and it is which this
court, the Court of Appeal, declined to undertake and

declined to, saying that it was not truly a claim under

GRIFFITHS V KERKEMEYER. We would submit that it - - -

MASON CJ: That was because it was a claim for the future rather

than the past. That was the view taken by the primary

judge and it is the view taken by the Court of Appeal, and I gather it is the view that is taken in New South

Wales.

MR ELLICOTT:  Your Honour, that does not mean, by saying the

past, prior to the accident; it just means up to the

date of the hearing and the court still has to assess

whether that is a continuing need caused by an

accident that occurred in 1983. They are looking at
it in 1986. That does not answer, with great respect,

the proposition that we are putting, because the court

would still have to say, "Sitting here in 1986 and

having regard to a need, if you are going to treat it as

such, that was created by the injury, is there a continuing

need in the future to provide something for this particular

plaintiff?" And if that was a need of the c.:i1araci..er

that is just being discussed in KOVAC V KOVAC, family

SlTS/9/RB	18	10/6/88
Smith

care that is being provided anyhow, then the proper

approach in allowing compensation by way of damages

is to treat what the family is providing as something

that that person is going to get anyway and should

not be laid at the door of the defendant.

Now, if we are right about that, and I would

submit that KOVAC V KOVAC should be enough to convince

this Court that there is a real issue involved in this

matter if the light of the rather simple facts that

face the Court, if that is enough then we would submit

this is obviously a case on that point for special

leave to appeal and of such importance that Your Honours,

in the circumstances, would grant an extension of time.

MASON CJ:  The Court need not trouble you, Mr Jackson.

Notwithstanding Mr Ellicott's arguments, we

do not consider that the proposed appeal on the question

of negligence raises any matter of general principle.

The issues of negligence and apportionment which

certainly were debatable turned on the particular facts

of the case and their resolution in this Court would

not, in our opinion, result in an elucidation of the

principles of negligence.

As to the point concerning the award of damages for nursing care and assistance, we are not persuaded that the approach adopted by the primary judge and the

Court of Appeal was erroneous or attended with

sufficient doubt to justify the grant of special leave

to appeal.

The application is therefore refused.

MR JACKSON:  I would ask for the costs of the application.

MASON CJ: You do not resist that, Mr Ellicott?

The application is refused with costs.

AT 11.46 AM THE MATTER WAS ADJOURNED SINE DIE

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