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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Sturch v Willmott

Details

AGLC: Sturch v Willmott [1995] QCA 521
Case: [1995] QCA 521
Decision Date: 22/11/1995

CaseChat Overview and Summary

The parties involved in the case were Sturch, the appellant, and Willmott, the respondent. The dispute centred around the issue of whether damages were allowable for the chance that, in the period after the appellant's actual premature death and the date of her normal life expectancy, she would have provided care to her children, which must now be provided by another. This case was heard in the High Court of Australia.

The central legal issue before the court was whether damages could be claimed for the chance of providing future care to one's children after one's premature death, as opposed to the certainty of providing such care if one had lived until their normal life expectancy. The court was required to decide if the chance of providing care could form the basis of a claim for damages.

The court held that damages for the chance of providing future care were not allowable. The court reasoned that the chance of providing future care is not a tangible loss and does not constitute a certain benefit that could have been enjoyed. The court further held that the mere possibility of providing future care did not amount to a loss that could be compensated. Therefore, the claim for damages based on the chance of providing future care was dismissed.

Orders