Sturch v Willmott

[1995] QCA 521

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 85 of 1995

Brisbane

[Sturch v. Willmott]

BETWEEN:

ANNA CATHARINA STURCH

(Plaintiff) Appellant

AND:

JAMES A. WILLMOTT

(Defendant) Respondent

Macrossan C.J.
Davies J.A.

Fryberg J.

Judgment delivered 22/11/1995

Separate reasons for judgment by each member of the Court each concurring as to the orders made.

APPEAL ALLOWED. JUDGMENT BELOW SET ASIDE AND, IN LIEU, THE PLAINTIFF/APPELLANT IS TO HAVE JUDGMENT INCREASED BY $90,000 TO $227,855 WITH COSTS. THE APPELLANT IS ALSO TO HAVE HER COSTS OF THIS APPEAL.

CATCHWORDS:	NEGLIGENCE - DAMAGES - whether damages are allowable for the chance that, in the period after actual premature death and the date of normal life expectancy, the appellant would have provided care to her children which must now be provided by another; basis for that claim -
Griffiths v. Kerkemeyer (1977) 139 C.L.R. 161. Lord Campbell's Act
Counsel:	Mr. S. Williams Q.C., with him Mr. J. Kimmins for the appellant Mr. J. Clifford Q.C., with him Mr. D. Tait for the respondent
Solicitors:	Taylors for the appellant Flower & Hart for the respondent
Hearing Date:	4 August 1995

IN THE COURT OF APPEAL

[1995] QCA 521

SUPREME COURT OF QUEENSLAND

Appeal No. 85 of 1995

Brisbane

Before Macrossan CJ
Davies JA
Fryberg J

[Sturch v. Willmott]

BETWEEN:

ANNA CATHARINA STURCH

(Plaintiff) Appellant

AND:

JAMES A. WILLMOTT

(Defendant) Respondent

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 22/11/1995

This appeal arises out of a claim for Griffiths v. Kerkemeyer damages to reflect the

cost of care for a plaintiff's children in the period after her death.

The appellant successfully sued the respondent, a medical practitioner, for

damages for negligence in respect of his failure to diagnose her medical condition in the

course of consultations. She succeeded in her action and damages were assessed under

a number of headings. The Judge below in his judgment described her as a thirty-seven

year old married woman with three daughters born respectively in 1981, 1982 and 1984.
It has been discovered that the plaintiff is suffering from cancer and as a result has

a very limited life expectancy.

A separate action for loss of consortium had been brought by her husband and both

actions were heard together. The plaintiff's husband was also successful in his

proceedings and judgment was entered in his favour with an award of damages. No

question presently arises concerning the award to him or its quantum.

At the hearing below, Counsel for both plaintiffs asked that, to the extent that it could

properly be done, the appellant's judgment rather than her husband's award for loss of

consortium should be favoured when it came to assessment if some need was perceived

to avoid duplication between the two awards.

Before the discovery of the appellant's medical condition with its consequential

limitations upon her physical capacity, she had been accustomed to provide care for her

children within the domestic environment. The indications are now that her husband will,

as best he can within the limitations imposed by the demands of his own employment, have

to assume a greatly enhanced role as carer. These additional domestic tasks he will be

undertaking gratuitously.

Amongst the headings under which assessments of damages were sought for the

appellant was one which is described in Australian jurisdictions as a Griffiths v.

Kerkemeyer award (so named after the case reported in (1977) 139 C.L.R. 161).

Awards to cover losses under this heading were claimed for periods both past and future.

In assessing damages up to the presumed date of death of the appellant, the trial

judge allowed for the value of the care that had been and would be provided to meet the

appellant's own immediate needs. He also made an assessment to reflect the value of the

services which, apart from the effects of the tortious injury she suffered, she would have

provided to her children. An award under this latter heading in respect of the value of care of the children calculated up to the appellant's presumed date of death, was opposed

below but no challenge was made to it on the hearing of the appeal and by the

respondent's argument it was conceded. Although a further claim had been made to cover

the value of care for the children beyond the date of the appellant's presumed death, the

trial judge declined to allow it but he made an assessment of $90,000 in case it should later

be determined that he was in error. The appeal challenges the judge's refusal to include

this figure in the total assessment. However, no contest arises on the quantum of $90,000

assessed for the period beyond the date of the appellant's accelerated death as now

projected, up to the time when her children will have outgrown the need for care.

I read the trial judge's reasons as indicating that he accepted from authoritative

statements in the High Court (and he appears to have had Van Gervan v. Fenton (1992)

175 C.L.R. 327 principally in mind) that the basis upon which Griffiths v. Kerkemeyer

damages are awarded is that they compensate a plaintiff for the plaintiff's own needs for

services which arise as a result of a defendant's wrongs. The Judge considered it

necessary to emphasise that it was a plaintiff's need which was relevant rather than a

plaintiff's loss of capacity.

The argument advanced on the appellant's behalf below and on appeal urged that

loss of a capacity by the plaintiff was the relevant aspect to be compensated in Griffiths v.

Kerkemeyer awards, it being contended that once that view was accepted there was no

difficulty in the way of making an award to cover the period after a plaintiff's death. The trial

judge's conclusion was that this view of the basis of such awards, i.e. the plaintiff's capacity

rather than the plaintiff's needs, did not conform with the High Court's "comprehensive

statements" and so should be rejected and that with it would go any basis for awarding

those damages for the period after death. The Judge stated that he considered the

decision of Demack J. in Locher v. Locher, (unreported, No. 102 of 1994, 22 December

1994) supported the view that damages would not be awarded in respect of the period

after death. It appears that the trial judge has acted upon his conception that there was a

significant distinction to be drawn between making an allowance to meet the need for care

of the appellant's children after her death and to meet the same need before she died.

However, in terms of entitlement to an award, he did not draw a distinction between the

need of the plaintiff to be cared for and the need for care of her children. It is not

immediately apparent how a need of the second kind can be properly allowable up until the

death of the parent under the Griffiths v. Kerkemeyer principle, or some extension of it, yet

cease to be allowable in respect of the period after the death of the parent. It should,

perhaps, be borne in mind that to say that the need of children to be looked after is a need

of their parent, is to use language in a particular way and it may not be the case that the

Judges in Van Gervan v. Fenton (supra) were intending to adopt that usage.

On the hearing of the appeal, a difficulty in making distinctions of the kind referred

to received attention again in connection with the respondent's arguments because the

concession was made that an allowance to reflect the value of care for the children during

the plaintiff's lifetime was appropriate but not any allowance for it after her death. One result is that we are in a direct sense relieved of the necessity (at least in theory) of finding

authority to extend the Griffiths v. Kerkemeyer principle of compensation beyond the value

of care of an injured plaintiff so that it will justifiably also cover the cost of gratuitous care

provided for an injured plaintiff's offspring. Of course, it may be that any such authorities

as exist on the point when they are examined will provide some indication whether an

assessment in respect of the care of children can extend for the period beyond the injured

person's death or must stop at that point. In fact, as later appears, authorities supporting

the making of a Griffiths v. Kerkemeyer type of award to cover the cost of care gratuitously

provided for an injured person's spouse or children are far from numerous.

In the discussion which has proceeded so far no reference is intended to be made

to assessments of compensation of a kind akin to an award of special damages which is

made to compensate for costs which an injured person has actually paid: if such

expenditures relate to the cost of care incurred as a result of the defendant's wrongdoing,

then, like other special damages, they are simply recoverable under ordinary principles not

dependent upon the authority of Griffiths v. Kerkemeyer. Deane and Dawson JJ in fact

observed in Van Gervan v. Fenton (supra) at 342 that the basis on which damages are

assessed in Griffiths v. Kerkemeyer cases "goes very close to extinguishing, any

distinction between general damages for loss of capacity and special damages for

outgoings which have been or will be actually incurred as a result of the accident."

However, for purposes of the present discussion the two categories are to be regarded as

distinct.

In considering the topic of damages for personal injury, a useful starting point is the

observation of Windeyer J. in Teubner v. Humble (1963) 108, C.L.R., recently accepted

as retaining its authority in a citation by Brennan J. in Nguyen v. Nguyen (1990) 169 C.L.R.

245 at 248:

"Broadly speaking there are, it seems to me, three ways in which a personal injury

can give rise to damage: First, it may destroy or diminish, permanently or for a time, an

existing capacity, mental or physical: Secondly, it may create needs that would not

otherwise exist: Thirdly, it may produce physical pain and suffering".

The precise basis upon which Griffiths v. Kerkemeyer awards are made has been

refined through an extended process of consideration by the Courts. Development of the

principle in its modern form appears to commence with Donnelly v. Joyce [1974] Q.B.

454, although much relevant consideration of the problems involved in dealing with

damages of this kind preceded that decision in the English Court of Appeal. Following

Donnelly v. Joyce and the decision in Griffiths v. Kerkemeyer itself, it may be sufficient for

exposition of the principle, as it is currently settled, to refer only to Nguyen v. Nguyen and

Van Gervan v. Fenton.

The requirements of justice, as currently viewed, were earlier thought to run counter

to firmly established principles governing awards of damages to compensate injured

persons for their loss and as a result did not find easy acceptance. Although the difficulties

which were observed came to be resolved over a period of time it may be helpful to record

what the problems were. Was an injured plaintiff to be held entitled to sue the wrongdoer

and recover damages for his loss and retain them for himself when in the particular respect

under consideration he had, due to the charitable interventions of others, suffered no loss

on any conventional view of the situation? On the other hand, were gratuitous providers

of services to an injured plaintiff to go uncompensated when they had suffered what could

conventionally be regarded as a disadvantage which was equivalent to loss? There was

the allocation of their time and effort on which it would be natural to place a value - they may

even have given up paid employment. But those gratuitous providers could not, on any

conventional principle, sue the wrongdoer themselves. They had suffered what could be viewed, at best, as economic loss but no tortiously recognised injury had been done to

them sufficiently directly. The factor that compelled the shift in the damages remedy now

under consideration was the consciousness that the wrongdoer was without any

justification simply being relieved of the burden of making good the amount of the loss he

had caused by the physical injury he had inflicted on the plaintiff. To meet the injustice

that was perceived in the absence of remedy in these circumstances, it would theoretically

have been possible to fashion a new cause of action to compensate those who suffered

no physical injury yet had to endure the consequential disadvantage, but in the life of the

common law justification has to be found within existing causes of action for any remedies

that are provided. No existing cause of action readily lent itself to cover the situation which,

in any event, lay in the difficult area of economic loss accompanied by no direct injury. If

a new remedy were made available in such a case, it would be hard to confine. It was

easier to extend the basis of assessment of damages for a plaintiff whose cause of action

was already recognised, namely the physically injured victim of the wrongdoer.

The process of justification behind the making of awards of Griffiths v. Kerkemeyer

damages has now proceeded to the point where there is a sufficiently comfortable

acceptance of the view that it is truly a loss of the injured plaintiff which is being

compensated for in the assessment, on the basis that it is the need of the plaintiff which is

receiving recognition. However, as explained below, the basis on which the justification

is now established does not so readily extend to assessments which look at the value of

services which are provided, gratuitously so far as the injured plaintiff is concerned, to the

members of the plaintiff's household. Perhaps there will also be others outside the

household who suffer loss or experience needs from deprivals consequent upon the

plaintiff's injury. In short, the Griffiths v. Kerkemeyer remedy as currently explained seems to have a different character from one which, if available, would apply in a case like the

present.

A need of the appellant induced by the injury to her has an essentially different

character from the need of others who had previously been dependent on, or at least been

the recipients of, services which the appellant had customarily provided. There is,

however, some parallel: the wrongdoer's action in causing physical injury to a plaintiff has

caused a consequential loss to fall on others who, at least while the plaintiff lives (since

after a victim's death a remedy under the Lord Campbell's Act legislation is a possibility),

have no available cause of action directly against the wrongdoer themselves. Demack J.

in Kupke v. Molesworth & Ors (unreported, No. 42 of 1992, 26 May 1995) has conveniently

collected authorities which bear upon the availability as between themselves of the

remedies under Lord Campbell's Act and the injured plaintiff's and his estate's cause of

action and the scope of each. If the wrongdoer does not pay at the suit of the plaintiff then

during the plaintiff's lifetime he avoids compensating those whom he has, in an economic

sense, directly injured. On the other hand, if he is made to pay he does so to the injured

plaintiff on whom the relevant economic loss does not fall and as in Griffiths v. Kerkemeyer

awards strictly so called, no mechanism ensures that the compensation flows to those who

can, with more justification, claim that the consequential disadvantage has fallen on them.

Unlike the usual Griffiths v. Kerkemeyer awards in respect of services provided to an

injured plaintiff, there will be particular difficulty in confining the ambit of erstwhile recipients

deprived of the injured plaintiff's gratuitous assistance as well as those he merely intended

to provide for. If, by what is essentially a creative extension to established heads of

damages in personal injury cases or, differently viewed, by an award having some broad

analogy with Griffiths v. Kerkemeyer assessments, an assessment is allowed in cases like

the present, then some new limiting principle might need to be applied to restrict the scope of such assessments. To this point it will be necessary to make some further brief

reference but first it may be desirable to look at the extent to which cases already decided

might provide some justification for an award in what can be regarded as a relatively new

area.

It has to be remembered that Van Gervan v. Fenton, like Griffiths v. Kerkemeyer,

was a case where the basis of the award to the injured party was the value of the gratuitous

services provided to him. In Van Gervan v. Fenton the services provided by the injured

plaintiff's wife had to be considered. Leaving aside any refinements of principle which do

not require attention in this case, it can be said that Van Gervan v. Fenton decided that,

as a general rule, the market cost of services gratuitously provided to an injured plaintiff is,

for compensation purposes, the fair and reasonable value of those services: see at 331,

334 per Mason CJ, Toohey and McHugh JJ; the general agreement of Brennan J. with

those reasons; "reasonable cost or commercial value" at 342 per Deane, Dawson JJ and

at 349 per Gaudron J. More relevantly for present purposes there is the discussion which

identifies the true underlying principle on which it should be accepted that damages are

awarded in such cases. The true basis is "the need of the plaintiff for those services

provided for him or her": per Mason CJ, Toohey and McHugh JJ at 333; the general

agreement expressed by Brennan J. at 340 and by Gaudron J. at 347. In the reasons of

Deane and Dawson JJ, substantially the same principle seems to be accepted at 342 and

343 in their reference to "accident caused needs", yet at other times in their reasons, e.g.

at 342, they refer to damages for "loss of capacity" or "accident caused loss of capacity"

as though equivalent to it. While accepting that the substantial majority in the case

unequivocally accept the "needs" basis of the award, the distinction between the bases

expressed in these somewhat differently constructed tests seems to be rather elusive.

What can its significance be?

The requirement of an injured person for care seems to reflect, in terms of ordinary

use of language, a primary meaning of need, but a present desire or past or present

obligation of an injured person to look after the needs of his children seems more obviously

to focus attention on a loss of capacity to attend to needs which are located in the children.

It is not really possible to shift the concept involved so as to state the need convincingly as

being one to respond to obligation in a legal sense: for example a completely disabled

accident victim without financial resources is not subject to any present obligation to care

for his children. If the perspective is further altered and reference is made to a sense of

responsibility as being equivalent to an obligation, it would then have to be conceded that

an accident victim who had lost all conscious functioning would not have any sense of need

or obligation to look after the wants of his children. However, persons in both of the classes

mentioned can clearly be regarded as having lost capacity.

Was the deliberate identification of need as the basis for compensation as

expressed in Van Gervan v. Fenton one which suggests that Griffiths v. Kerkemeyer

damages are properly restricted to market cost or value of services to care directly for the

injured person? If so, the cost of caring for that person's spouse or children could not be

covered under the principle and if they are to be covered at all it will be on the basis of a

principle which must be differently expressed, perhaps under some quasi Griffiths v.

Kerkemeyer heading or an extension of it that allows compensation in respect of matters

outside the ambit of an injured plaintiff's needs.

The decision of the Court of Van Gervan v. Fenton to ascribe the compensating

basis to "need" rather than "capacity" would have assisted in the rejection of a limiting

principle which might otherwise have had some claims for acceptance, namely that which

declares a relevant need must be one which "is or may be productive of financial loss".

Such a principle, rejected in respect of the Griffiths v. Kerkemeyer category, is one which does limit the amount of damages to be assessed in the case of loss of capacity of a

different kind. viz earning capacity: see Graham v. Baker (1961) 106 C.L.R. 340. The

restriction which has been expressed is of importance in the assessment of economic

damages for personal injuries because otherwise effects upon the earning capacity of

plaintiffs as a result of injury might result in assessments which included substantial

amounts even in the case of persons who had not been working and would not, even apart

from the accident, have engaged in paid employment. The limiting principle noted in

Graham v. Baker (supra) as applying to assessments for loss of capacity in the area of

earnings does not, we now observe, have any place in Griffiths v. Kerkemeyer

assessments, or at least does not do so in the case of an injured plaintiff's own need for

services: Van Gervan v. Fenton per Mason C.J., Toohey and McHugh JJ at 333. If it did

apply it would remove or reduce the potential for services gratuitously rendered to an

injured plaintiff to be compensated. The need for assistance will not be likely to be

productive of financial loss if the services are to be gratuitously provided.

The relevant matter for consideration in the present case is the basis which may

justify an award to the appellant because of her children's continuing need for care in a

situation where she will no longer be able to provide it. It is not contested that an

assessment should be made to cover this until the presumed date of death. Although the

principle which might justify it is not explicitly stated, it seems to be one which has been

accepted by analogy with Griffiths v. Kerkemeyer. This seems to be the case rather than

that a single principle has been clearly identified that is capable of covering what are in

some respects two distinct types of claim. These questions arise: if the plaintiff is entitled

to be compensated under this head in respect of the care of her children, why should the

point of assessment end with her presumed death and, if the plaintiff is to be compensated

for her lost ability or her frustrated wish to care for her children, what about a situation where she might have been performing gratuitous services for others who may not have

been members of her household? She may, out of charity or a sense of friendship, have

been assisting some neighbour or on her own initiative she may have been a member of

a team or organisation such as Meals on Wheels, or she may have been acting, say, as

honorary secretary to a voluntary organisation. Many similar examples can be visualised.

In view of the statements in Van Gervan v. Fenton there seems to be no justification for

refusing compensation to a plaintiff in such further cases simply because taking away the

possibility of performing such services will not be productive of financial loss to the plaintiff.

Perhaps the element of necessity in the form referred to by Gibbs J. in Griffiths v.

Kerkemeyer at 168 can be made to perform the function of limiting the ambit of a

defendant's liability to compensate. Many plaintiffs, before being injured, may have been

performing voluntary services for persons outside their immediate households and doing

so, not in response to anything which could be regarded as necessity, but simply as a result

of a free and unpressured choice. Perhaps the principle of "proximity" which has an

established operation in other areas of torts can perform some function in defining the

ambit of permissible claims in this area also. It is not necessary for the resolution of the

present appeal to find answers to these questions.

It is, of course, not permissible to deny entitlement to the sum assessed by the trial

judge in the present case, with some object of restricting the Griffiths v. Kerkemeyer

principle to less than its established sphere of operation. The question is whether a

principle of compensation should be accepted extending beyond the strict category

concerned with the care of injured plaintiffs and to do so when it is relatively unsupported

by authority. While in view of the concession made there can be no question of reducing

the amount assessed for value of care of the children up to the date of the presumed death,

the amount of $90,000 assessed for the period beyond that time should not be granted simply because there is no valid distinction in principle seen between the two periods. The

validity of a claim for compensation for the latter period must stand on its own feet and

provide its own justification if it is to be granted at all. It is not necessary in this case to

confront the potential problem of duplication within awards, i.e. as between an action of the

present kind and a Lord Campbell's Act proceeding or, in view of the way in which matters

were conducted below, as between the present action and the husband's action for loss

of consortium. It is as well to emphasise also, that because there is no contest in respect

of the quantum of the $90,000 assessment, there is no need to consider possible overlaps

between awards to cover general loss of amenities and an item of the kind with which we

are now concerned.

The Judge below found justification for an award to extend up to the date of the

appellant's presumed death, reflecting the value of the care she would have provided to her

children and he did so by having regard to these authorities: Waters v. Mussig [1986] 1

Qd.R. 224, at 225, Hodges v. Frost (1984) 53 A.L.R. 373; Burnicle v. Cutelli [1982] 2

N.S.W.L.R. 26, Nguyen v. Nguyen (supra); and Van Gervan v. Fenton (supra). There are

observations in these cases which can provide guidance of a general kind but the only one

which, in its factual situation, can be regarded as being in point is Waters v. Mussig and

in respect of that case the Judge below expressed doubts whether the reasoning can

survive the statements in Nguyen v. Nguyen and Van Gervan v. Fenton. There is an

English decision in the Court of Appeal, Daly v. General Steam Navigation Co. Ltd [1981]

1 W.L.R. 120 but a different theoretical justification was adopted for making the award

there and the factual basis also results in the case not being exactly in point. The Judge

below did not rely on it.

The situation then is that there is limited direct authority which supports the allowance to a physically injured plaintiff, as an ingredient of his award, of a calculated sum to represent the value of the services the plaintiff in a domestic environment would, apart

from the injury, have contributed to the care and support of spouse and children. For the

assistance that they may be thought to provide, there are observations made in other

cases more strictly within the Griffiths v. Kerkemeyer category where services gratuitously

provided to an injured plaintiff were valued and allowed. The length of time during which

the Griffiths v. Kerkemeyer principle of assessment has been established is now

significant. It would be fair to say that understanding of the principle has increased with the

authoritative decisions which have been contributed over that period. There is a very

general analogy which can be seen between strict Griffiths v. Kerkemeyer awards and a

case of the present kind and an equal justification may apply to an assessment in a case

like this when it is not a matter of supplying services to an injured plaintiff which is under

consideration. The common element between the two factual categories is the

disablement of a plaintiff and the justice of arranging assessments so that wrongdoers do

not profit through having their damages reduced by the gratuitous efforts of care providers

which are not intended to achieve that result. The considerations mentioned support the

Court's declaring that damages assessments can be made in cases like the present where

the factual circumstances provide sufficient justification for allowing a separate specific

head calculated as in Griffiths v. Kerkemeyer cases. If this is regarded as extending the

Griffiths v. Kerkemeyer category then it should be accepted that it should be extended.

For myself I would regard the present decision as applying to services which apart

from the accident would have been provided by the plaintiff to members of the plaintiff's

immediate or extended domestic household. I would leave for later consideration the

question whether an assessment can properly be made in respect of the value of services

which a plaintiff would have provided to persons who are strangers to his household. Of

course, in such cases it would, to say the least, be much less easy to show that after the accident, the plaintiff's contribution being lost, it was reasonably necessary to provide

substitute services at a cost so that the plaintiff should be compensated for their value: cf.

per Gibbs J. in Griffiths v. Kerkemeyer at 168.

The judgment sum in the present case should be increased by $90,000. The

appeal should be allowed and the judgment below set aside with its being ordered in lieu

that the appellant have judgment for $227,855 with costs. The appellant should have an

order for the costs of the appeal.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 85 of 1995

Brisbane

Before Macrossan C.J.
Davies J.A.
Fryberg J.

[Sturch v. Willmott]

BETWEEN:

ANNA CATHARINA STURCH

(Plaintiff) Appellant

AND:

JAMES A. WILLMOTT

(Defendant) Respondent

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered the 22nd day of November 1995

The appellant, who was the plaintiff below, appeals against a judgment for damages for

personal injuries. In that judgment the learned trial Judge assessed, but did not allow, a sum

of $90,000 damages under the Griffiths v. Kerkemeyer[1] head of damage for a period after the

[1]           Griffiths v. Kerkemeyer (1977) 139 C.L.R. 161.

death of the appellant. The appellant contends that his Honour was wrong in failing to allow
that amount and to include it in his judgment.

The circumstances giving rise to the claim for this sum and its assessment are as

follows. The action was one against a medical practitioner for negligence in failing to diagnose

the appellant's colon cancer. The learned trial Judge held that the respondent's negligence

deprived the appellant of the chance of recovery or of a better recovery than is now the case.

One probable consequence of the appellant's cancer is that she will not survive beyond

December this year. That chance therefore included the chance that the appellant would have

survived beyond that date.

The respondent's negligent omissions occurred between April 1991 and October 1993.

At the first of those dates the appellant was 33 years of age having three children aged

between nine and six.

The appellant's contention, at trial and in this Court, was that she was entitled to

Griffiths v. Kerkemeyer damages for the chance that, in the period between December this

year and the date of her normal life expectancy, she would have provided care to her children

which must now, because of the respondent's negligence, be provided by someone else. It was

these damages which the learned trial Judge assessed at $90,000 and which the appellant

contends should have been included in the damages she was awarded. There was no contest

in this appeal as to the correctness of that assessment.

At trial the respondent had submitted that Griffiths v. Kerkemeyer damages did not

include the value of care which a plaintiff had previously given to members of her family, in

this case her children, but which, because of a defendant's negligence, she was or might be

unable to give. The respondent's contention there was that Griffiths v. Kerkemeyer damages should be limited to the value of services provided to the appellant which she was no longer

able to provide for herself. The learned trial Judge rejected that contention and awarded

damages, up to December this year, which included a sum for the value of the care which the

appellant formerly provided to her children but which, by reason of the respondent's

negligence, she was or might be no longer able to provide. The respondent did not appeal

against the inclusion of that sum in the damages awarded to the appellant and, in effect,

conceded before this Court that damages are recoverable under the above principle in respect

of the period before December 1995, the only question being, it was contended, whether that

principle applied to the period after December 1995. Notwithstanding that concession it will

be necessary to say something further about the correctness of the proposition so conceded

that Griffiths v. Kerkemeyer damages may include damages for the cost of providing services

formerly provided by the plaintiff to others.

The damages awarded in Griffiths v. Kerkemeyer were damages for loss of amenity;

more specifically for loss by the plaintiff of her capacity to care for herself giving rise to a

need for care. The question which divided the court in that case was whether, to be

recoverable, that incapacity must be such that it will or may be productive of financial loss.

Gibbs J. thought that it must. Stephen and Mason JJ. thought that it was sufficient that it

gave rise to a need for services. The policy reason underlying the latter view, which was

preferred in Van Gervan v. Fenton[2] was that otherwise the wrongdoer would be advantaged

[2] (1992) 175 C.L.R. 327.

at the expense of the plaintiff or his or her gratuitous helper[3].

[3]           Nguyen v. Nguyen (1990) 169 C.L.R. 245 at 262.

The damages in issue in this case are also for loss of capacity. However it is not a loss

of capacity by the plaintiff to care for herself but a loss of her capacity to care for others. It

is difficult to see how loss of that capacity could give rise to a need in the plaintiff. Indeed it

might be thought that the only need to which it gives rise is a need of the others for whom the

plaintiff formerly cared.

It is possible to characterize the loss of capacity in this case as giving rise to a loss of

amenity because, as Reynolds J.A. pointed out in Burnicle v. Cutelli[4] the exercise of that

[4] [1984] 2 N.S.W.L.R. 26 at 28.

capacity "can give ... pride and satisfaction and the receipt of gratitude, and the loss of [it] can

lead to frustration and feelings of inadequacy." If that is the only way in which this loss of

capacity can be characterised there does not appear to be any basis for measuring that loss

by reference to the commercial cost of a replacement service. Nor would damages in issue

here be recoverable for the period after December 1995.

There are, however, strong policy reasons in favour of measuring the damages in

cases of this kind, that is, of loss or diminution of capacity by a spouse/parent to provide

domestic services formerly provided by her (for it is usually a woman) to her spouse/children,

by reference to the commercial replacement cost. One is that referred to above: that

otherwise the wrongdoer may be advantaged at the expense of the plaintiff or her gratuitous

helper. The examples given by Glass J.A. in Burnicle[5] illustrate the unfairness of failing to

[5]              Supra at 35.

compensate the plaintiff in this way. There are also policy reasons which favour placing an

economic value on the domestic contribution of a spouse to her family and treating the loss

or diminution of the capacity to make that contribution as the spouse's loss rather than, as in

former times, her husband's[6]. Moreover in some cases it may be impossible to disentangle

[6]              See, for example, Sharman v. Evans (1977) 138 C.L.R. 563 at 598. The first of these views is also

the services which the plaintiff formerly provided to her family from those which she provided

for herself, the latter being plainly recoverable on the Griffiths v. Kerkemeyer principle.

It was no doubt considerations of this kind which led the English Court of Appeal in

Daly v. General Steam Navigation Co.[7], the Federal Court in Cummings v. Canberra Theatre

[7] [1981] 1 W.L.R. 120.

Trust[8] and Hodges v. Frost[9] and the Queensland Supreme Court in Waters v. Mussig10 to measure damages of this kind (in Daly for the future only) by reference to the commercial

[8]              Unreported, 18 June 1980.

[9] (1984) 53 A.L.R. 373.

replacement cost of the services. I am persuaded, as those Courts were, that the loss or

diminution of this capacity gives rise to economic loss by the plaintiff who formerly had that

capacity. That loss or diminution is, in my view, analogous to a loss or diminution of earning

capacity and should ordinarily be measured by the replacement cost of the services which, by

reason of her loss or diminution, the plaintiff is no longer able to provide.

Once the damages are characterized in this way they would also include, as would

damages for loss of earning capacity11, damages for the period after December 1995. It

follows that the appeal should be allowed, the judgment below set aside and, in lieu, the

plaintiff/appellant have judgment for $227,855 with costs. The appellant should also have her

costs of this appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	Appeal No. 85 of 1995
Before	Macrossan C.J. Davies J.A. Fryberg J.

[Sturch v. Willmott]

BETWEEN:

ANNA CATHARINA STURCH

(Plaintiff)

Appellant

AND:

JAMES A. WILLMOTT

(Defendant)

Respondent

REASONS FOR JUDGMENT - FRYBERG J.

Delivered the 22nd day of November, 1995

According to the argument for the respondent the result in this appeal depended upon the question whether damages awarded under the doctrine in Griffiths v. Kerkemeyer12 are awarded for loss of capacity of a plaintiff to care for himself or herself; or for the care and services which must be provided to a plaintiff to satisfy the plaintiff's need. For the respondent it was strongly argued that the latter characterisation was correct and the former incorrect. In Talbot v. Lusby13, sitting at first instance, I rejected the correctness of the former characterisation. Having heard the argument in this appeal I am no longer confident of the correctness of that rejection.

However the dichotomy postulated by the respondent is not crucial to the resolution of the present appeal. That is because the respondent has conceded that the plaintiff was properly awarded damages under Griffiths v. Kerkemeyer in respect of the period up to her expected death. On the respondent's own argument therefore, the cost of provision of services to the plaintiff's dependants can (and in this case did) amount to a need in the relevant sense. The concession rendered it unnecessary for us to hear argument on whether such services are claimable under this heading. It is not a matter which to me is self evident, nor is it one free from difficulty14. In these circumstances it is in my view preferable not to comment upon it.

Given the concession, it seems to me that even if need be the correct basis of characterisation of a Griffiths v. Kerkemeyer claim, there is no incongruity in calculating the amount of the award to include the "lost years". To say in this context that the plaintiff's need cannot survive her is facile. It is true that the need of the plaintiff's children falls to be satisfied anew each day. It is a continuing need. But it arose when the plaintiff was injured. That was when her children lost the privilege of her services, and needed to establish a replacement. That is when the plaintiff's need arose to make provision for what is to happen after her death. If as a result of a defendant's conduct a plaintiff or his or her dependants needs to replace the services which would have been provided to those dependants during the dependency it does not seem to me to make any difference that the plaintiff is expected to die before the dependency would otherwise have terminated.

Putting the matter another way, I cannot see why a different result should follow from calculating damages on the basis of an accrued need rather than from doing so on the basis of the lack of capacity which ex hypothesi gave rise to the need. Indeed the dichotomy propounded by the respondent may be a false dichotomy.

For the appellant it was argued that a claim under Griffiths v. Kerkemeyer is a claim for compensation for loss of capacity suffered by the claimant; that this extends to include loss of capacity of the plaintiff in the present case to perform her usual domestic and other activities for her children; and that to that extent the calculation of the loss should take into account the lost years. If the first step in the argument is correct, then the second step must also be correct in the light of the concession to which I have referred. On the basis that both steps are correct, Davies JA had held that the third step follows. Assuming that those steps are correct, I agree with that conclusion. Indeed the respondent did not contend that on that basis the conclusion would not follow.

A number of policy arguments were advanced in support of the appellant's case. These arguments seemed to assume that Lord Campbell's Act was a creature of the common law. It is not. Anomalies in the structure of the law relating to damages for wrongful death were referred to. Rectifying the anomalies would obviously have economic consequences for insurers and possibly for the community generally. Arguably Parliament is the only proper place for such rectification to take place. In any event, this court should not embark upon any such policy-driven change without material before it which would enable some assessment of the economic impact of the proposed change to be made. In the absence of such material I am not prepared to take these considerations into account in support of the appeal.

For the foregoing reasons, and accepting the correctness of the concession made before us, the characterisation of the claim makes no difference to the outcome of the appeal. It should be allowed. There was no challenge to the correctness of the learned trial judge's assessment of $90,000 in respect of the "lost years". I agree in the orders proposed by Davies JA.

supported by authority elsewhere: (Rathwell v. Rathwell (1978) 83 D.L.R. (3d.) 298 (S.C.C.) at 298 and 313 per Dickson J.; Ritchie, Spence and Pigeon JJ. agreeing), by academic legal writers (Posner, ‘Economic Analysis of Law’ (4th ed.) at 140, 147n.3, 192, 193; Cooper-Stephenson & Saunders, ‘Personal Injury Damages in Canada’ at 213 and 214; L.J. Weitzman, ‘Legal Regulation of Marriage: Tradition and Change’ (1974) 62 Calif. L. Rev. 1169 at 1190), and by a leading economist (Galbraith, ‘Economics and the Public Purpose’ (1973) at 233 and ‘A New Economic Role For Women: What Consequences for Emancipation?’ [1973] Current 41 at 43). The second also has considerable academic support (Luntz, ‘Assessment of Damages for Personal Injury and Death’ (3rd ed.) at para.4.1.11; Fleming, ‘The Law of Torts’ (8th ed.) at 235; Cooper-Stephenson & Saunders, ‘Personal Injury Damages in Canada’ at 214ff; Kutner, ‘Damages for Injuries to Family Members’ (1983) 1 Torts Law Journal 231 at 237; Trindade and Cane, ‘The Law of Torts in Australia’ (2nd ed.) at 492, 493).

12 (1977) 139 C.L.R. 161

13    Fryberg J, unreported, S.C. 1899/92 14-7-95

14    For example, what is the necessary relationship between the plaintiff and the person or persons to whom services are provided? Must the plaintiff have been under a pre-existing duty to provide those services? And if so, what sort of duty is required?