Thorne v Strohfeld

[1996] QCA 16

IN THE COURT OF APPEAL	[1996] QCA 016
SUPREME COURT OF QUEENSLAND

Appeal No. 70 of 1995

Brisbane
[Thorne v. Strohfeld]

BETWEEN:

HEATHER JEAN THORNE

(Plaintiff) Respondent

AND:

ALFRED ALBERT STROHFELD

(Defendant) Appellant

Pincus JA Ambrose J Helman J

Judgment delivered 13/02/1996

Joint reasons for judgment of Pincus JA and Helman J; separate dissenting reasons of
Ambrose J.

APPEAL ALLOWED WITH COSTS. ORDER THE DELETING FROM THE AWARD MADE BY THE LEARNED PRIMARY JUDGE THE AMOUNT ALLOWED FOR LOSS OF SERVICES, $80,000, AS WELL AS THE INTEREST ATTRIBUTABLE TO THAT SUM WHICH IS $4,500. ACCORDINGLY THE JUDGMENT SHOULD BE REDUCED FROM $115,850 TO $31,350.

CATCHWORDS:	GRIFFITHS V. KERKEMEYER - non-duplication of damages in separate actions - unapportioned lump sum in first action.
Counsel:	Mr B.L.P. Hoare for the appellant Mr K.F. Boulton for the respondent
Solicitors:	Wondeley & Hall for the appellant O'Sullivans Solicitors for the respondent
Hearing date:	11 July 1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 70 of 1995

Brisbane

Before Pincus JA Ambrose J Helman J

[Thorne v. Strohfeld]

BETWEEN:

HEATHER JEAN THORNE

(Plaintiff) Respondent

AND:

ALFRED ALBERT STROHFELD

(Defendant) Appellant

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 70 of 1995.

Brisbane

Before Pincus J.A.
Ambrose J.
Helman J.

[Thorne v. Strohfeld]

BETWEEN:

HEATHER JEAN THORNE

(Plaintiff) Respondent

AND:

ALFRED ALBERT STROHFELD

(Defendant) Appellant

JOINT REASONS FOR JUDGMENT OF PINCUS J.A. AND HELMAN J.

Judgment delivered 13/02/1996

We have read the reasons of Ambrose J and will not repeat his Honour’s explanation of the facts of the case or the issues raised. We are in respectful disagreement with his Honour’s conclusions, as it appears to us that the wife’s claim for loss of the husband’s services relates to the same matters as were claimed in the husband’s suit.

The problem of overlap between Griffiths v. Kerkemeyer ("G v. K") damages and damages for loss of servitium may be illustrated by departing from the facts of this case and postulating a simpler example. A childless couple do not share the housework but the wife does it all, the value of her work being assessed at say $200 per week. An accident renders the wife incapable of doing any housework so the husband takes the job on, the value of his work being, also, $200 per week. Both sue and the actions are heard together, the husband’s claim being for the loss of the value of his wife’s services which he puts at $200 per week. The wife’s claim includes G v. K damages and she argues that she also is entitled to damages assessed at $200 per week, being the value of the housework which her husband has to do because of her injury. Although the example may be unrealistically simple, it points up the assessment problems.

The first is whether either claim can be defeated by the defendant pointing out that no monies are being expended on housekeeping services. As to the G v. K damages, the answer is plainly no, and the same answer must surely be given in respect of the claim for loss of services.

Is each loss $200 per week, or only $100? This appears to be a difficult question, but it is one which it is not, in the present case, necessary to answer. Suppose the defendant argues that as to the loss of services, half the value of what the wife did, i.e. half the $200, should be ascribed to her services to herself; similarly, in the G v. K claim the defendant says that the $200 value of the husband’s services, made necessary by his wife’s injury, should be apportioned half to each, on the basis that the value attributable to the necessity for the husband to provide household services to his injured wife is only $100.

These contentions seem rational, but the trend of the authorities may be against them. In particular, in Van Gervan v. Fenton (1992) 175 C.L.R. 327 at 338, 350, the majority of the High Court i.e. Mason C.J., Toohey, McHugh and Gaudron JJ, appeared to hold the view that the total value of the services provided by the uninjured partner, the performance of those services being rendered necessary by the injury, must be allowed.

Is each plaintiff entitled to $200 per week? An award to the couple on the basis of $400 per week would plainly exceed the real loss. The cases are against double recovery: Norman v. Sutton [1989] Aust. Torts R. 80-282, followed in Johnson v. Nationwide Field Catering Pty Ltd [1992] 2 Qd.R. 494 at 496. It seems unnecessary to discuss this point, which was not in dispute in the present case, in detail. But it is a curious legal situation; a similar problem may arise where a shareholder, guarantor of a company’s debts, is induced by fraud to cause the company to enter into an unprofitable contract. There the shareholder and the company may each be able to sue for damages for fraud, and for the same or overlapping sums: Gould v. Vaggelas (1985) 157 C.L.R. 215 at 220, 245, 246.

It may be that in some cases a flexible approach will be necessary, to ensure that what is merely a theoretical duplication does not deprive the plaintiff in the second case of his or her rights. But flexibility cannot avail the second plaintiff where (as here) there is at bottom no ground of complaint about the first award except for the possibility that, if the G v. K loss had been separately agreed, it might have been less than would have been obtained by pursuing the suit to trial.

How is double recovery avoided? In Johnson’s case (above) the husband’s claim for loss of services and the wife’s G v. K claim were heard together, but, perhaps because the latter related largely to the value of services performed by the wife’s mother, the two apparently did not overlap; it is unclear what a court should do if two such claims are, as in the case we have postulated, for the same monies. Where the two suits do not come on for hearing together, it appears that the first claim is to be assessed without regard to the second, and the second must be reduced to the extent necessary to avoid double recovery.

The statement of claim in the husband’s action said (para. 11) that the plaintiff could not live without assistance and required domestic and nursing services "which so far have been rendered by his wife and children". Paragraph 12 alleged that the plaintiff had suffered loss in that he could no longer perform household repairs and maintenance and other services. These allegations were capable of forming the basis of a G v. K claim, being the value of domestic and nursing work as well as the value of household repairs, maintenance and other services. Details of the G v. K claims were given, by way of particulars.

The offer of settlement of the first action was in a sum of $700,000, in addition to an advance payment already made, together with costs and exclusive of certain hospital charges. An opinion was obtained for the plaintiff on the basis of which the offer was accepted, but the calculations in the opinion are, as it seems to us, not of any present assistance. With all respect to those who have suggested otherwise, where (as here) a lump sum is offered and accepted in settlement of a claim which includes G v. K damages, the content of an opinion obtained by one side and not, before the making of the offer, communicated to the other can have no relevance in determining to what matters the G v. K claim should be attributed. There is no justification for ignoring the husband’s pleadings, in the present case; they are quite detailed and comprehensive and the point at issue should be decided on the basis that the claims so pleaded were satisfied. The analogy is with the rule that in determining what was decided in a case, for the purposes of a plea of estoppel, it is to the record of the proceeding that one must refer: Isaacs v. Ocean Accident & Guarantee Corp. Ltd. [1958] S.R.(N.S.W.) 69 at 75, cited in Chamberlain v. Deputy Commissioner of Taxation (1988) 164 C.L.R. 502 at 508.

The result is that in the claim for loss of services, only items not covered by the pleading in the husband’s action can be considered. The learned primary judge suggested that "a more refined approach is in order than simply examining what was claimed in the pleadings in the injured person’s action or claim". We can see no other means of determining what was covered by the settlement of the first case than by examining the pleadings; that will be so whenever an unapportioned lump sum is offered and accepted. And the fact that the sum is unapportioned makes it impossible to hold that what was allowed for a particular component of loss in the first action was too high or too low, even if, which we doubt, the acceptance of a sum which is seen on reflection to be inadequate, in the first action, would be enough to justify a reassessment in the second. It should be added that, when an order sanctioning the settlement was made, a stated sum ($78,340) was ordered to be paid to the wife in respect of past services. As the evidence before the primary judge showed, that sum was ordered to be paid because the plaintiff’s solicitors fixed it as the proper sum to be paid to her, not because it was an element agreed between plaintiff and defendant. The order was made by way of distribution of the judgment sum.

The findings in the present case do not go into detail as to the basis on which the loss of services has been assessed. It is explained that the husband was grievously injured so that his ability to look after himself is quite limited. The judge has held in effect that because of the husband’s proneness to do dangerous things his wife "has to be there to care for him" and has had to give up her own full-time employment, that she has had to attend with her husband at hospitals and doctors’ surgeries, that her husband is "present as a burden rather than as a support".

In short, the judge has found that the wife has, because of her husband’s injuries, extensive responsibilities in caring for him.

But this is plainly stated in the pleadings in the
first action. It seems unnecessary to set out the whole of
the detail of the assistance there alleged to be required;
there was no suggestion, in the submissions made to us,

that it did not sufficiently describe what has to be done

for the husband.

The argument for the respondent on the "overlapping" point, which is of course the point of the case, is not to be found in the written outline. In oral argument counsel submitted that the "only way of knowing" the basis upon which the husband’s claim was allowed was by looking at the opinion; we are unable to accept either that it is the only way or that the opinion is material. Another argument advanced was that the wife should receive the full measure of her loss unless it was proved that she had already recovered in respect of the same incidents. That is not so, for the non-duplication principle does not depend upon the plaintiff being the same in each suit. As to the burden of proof, we are content to assume that it was on the defendant; but the settlement of the husband’s claim, including certain pleaded components, is at least prima facie evidence that those claims have been, not partly, but fully, satisfied. It was submitted for the respondent that in some respects there is a lack of correspondence between the lost services for which the primary judge compensated the wife, and the loss claimed in the first case; but the lack of correspondence between the two was not identified.

The only point in the judgment at which the learned primary judge explained the basis upon which he was prepared to hold that there was such a lack of correspondence is his Honour’s mention of the wife having had to give up her employment; but that was a matter covered by the pleading in the first case, in which the pleadings said that the husband required assistance and services 24 hours a day 7 days a week.

In truth, the basis on which the wife’s claim seems to have been pressed below was that the amount of the settlement did not adequately reflect the relevant losses, which were greater in amount than was allowed. It is as we have said impossible to establish the truth of that, since the settlement was unapportioned. The primary judge explicitly rejected the proposition, advanced below, that the wife could because of her "dissatisfaction with the compensation she had received for her services to the husband to date" . . . "do better this time around by supplementing what her husband obtained the first time around".

It was suggested by counsel for the appellant that the proper course, if his submissions were accepted, might be to make what he described as a "relatively nominal allowance" of $10,000 for loss of services. We can see no basis for doing so; such an allowance would be purely arbitrary and the logical consequence of acceptance of the appellant’s submissions is that nothing should have been allowed for loss of services.

We would allow the appeal by deleting from the award made by the learned primary judge the amount allowed for loss of services, $80,000, as well as the interest attributable to that sum which is $4,500. Accordingly, the judgment should in our opinion be reduced from $115,850 to $31,350.

REASONS FOR JUDGMENT - B.W. AMBROSE J.

Judgment delivered 13/02/1996

This is an appeal by a defendant against the quantum of damages awarded to a plaintiff in her action for damages for loss of the consortium/servitium of her husband. The appellant contends that with respect to the damages awarded for loss of servitium there was not a sufficient identification of services lost to support the award which could only be explained on the evidence upon the assumption that there had been some "duplication of damages" already recovered by her husband in the compromise of an action he also took against the appellant.

On 11 January 1985 the respondent's husband was seriously injured as the result of the appellant's negligence. He commenced action for damages in the Supreme Court of Queensland on 29 October 1985 and this action was compromised on 26 April 1991. By the time the action was compromised the respondent's husband was subject to a protection order and it was necessary for the compromise effected to be sanctioned. The compromise was sanctioned and resulted in the respondent's husband recovering an award of damages in the sum of $721,080.01, together with a contingent liability upon the appellant to pay certain additional sums should the respondent's husband become legally liable to pay them.

In the order made sanctioning the settlement it was directed that $98,340.00 of the sum recovered by her husband be paid to the respondent in respect of necessary services she had rendered to him between date of injury and the sanctioning of the settlement, the value of which was recoverable by her husband under Griffiths v. Kerkemeyer (1977) 139 CLR 161.

After directing that certain parts of the judgment sum be paid to various persons, it was ordered that the balance be paid to the Public Trustee to be held and applied for various purposes. It was directed, inter alia:

"That the Public Trustee pay out of the income received from the investment of the moneys received by him to Heather Jean Thorne by way of Griffiths v. Kerkemeyer allowance while she continues to give full time care to the plaintiff such sum as recognises her nursing qualifications and duties."

Upon the application to sanction the settlement, opinion of counsel for the respondent's husband concerning the desirability of compromising the action for the sum offered was placed before the master. This opinion was by order filed in a sealed envelope. Upon the hearing of the case under appeal, the content of that opinion was placed before the trial judge.

The findings of the trial judge (apart from inferences he drew to support the quantum of damage awarded) are not in issue. The respondent's husband was born in 1942. She was born in 1944 and she married her husband on 21 March 1964. There were four children of the marriage. For many years prior to his injury the respondent's husband had been in full time employment. The respondent had also been employed as an enrolled nurse. She regularly did shift work for 10 days per fortnight and often worked five weekends out of six. The respondent's husband worked as a truck driver and from time to time spent some days away from the domestic residence.

It is clear that because of their respective work commitments the respondent and her husband shared the performance of domestic tasks necessarily involved in maintaining and running their home. The respondent gave evidence that prior to his injury her husband spent two or three hours per day performing domestic housekeeping work in and around the matrimonial home for the benefit of them both, and indeed for the benefit of the family generally. This was work of the sort that the respondent was unable to do easily because her employment commitments necessitated her absence from the home at times when housework, cooking, cleaning etc. would normally be done. In addition to this work he also performed other work for the benefit of the family including servicing the family motor vehicle, painting, home maintenance and improvements, gardening, lawn mowing etc. The respondent's evidence as to the nature of the services performed by her husband prior to his injury was not challenged.

Evidence was adduced that housekeeping services of the sort contributed by the respondent's husband for two or three hours per day would at date of trial cost about $13.50 per hour - i.e. $283.50 per week for three hours assistance per day and/or $189.00 per week for two hours assistance per day. The evidence was to the effect that the cost of such services increases on average by 20% over a five year period.

There was no evidence as to the time spent by the respondent's husband doing outdoor garden, house and motor vehicle maintenance work, or how much per hour or per segment of work performed by him it would cost to engage some other person to perform that work.

The evidence was to the effect that at time of trial the respondent's husband had a

life expectancy of between 12½ years and 17½ years.

The uncontradicted evidence is to the effect that subsequent to his injury the respondent's husband was unable to provide any useful service whatever to the respondent, or indeed for that matter for himself. Apart from other physical injuries, the respondent's husband suffered brain damage, as the result of which his Honour found "he seems to have become childlike regarding Mrs Thorne and referring to her as his 'mother'". It was found that he could make no useful contribution to the household, although he was able to amuse himself watching television and playing games. The respondent abandoned her full time employment as an enrolled nurse to care for her husband. Over the years since his injury, crises have arisen requiring the respondent to attend at hospitals and doctors' surgeries with her husband when he needed medical and hospital treatment. In effect, the respondent has exercised almost full time supervision of her husband since his injury and will apparently be required to do that indefinitely. Sometimes she is able to arrange for a neighbour or an acquaintance to be with her husband when she leaves the house for brief periods. In assessing damages the learned trial judge expressed the view that it was unfortunate that the respondent's proceedings were brought separately from the proceedings taken by her husband, which had been compromised. He observed that it was necessary that he "be astute to avoid any element of doubling up in the damages which the defendant will have to pay in consequence of the combined actions". He referred to the observations of the Court of Appeal in New South Wales in Norman v. Sutton (1989) ATR 80/282 at p. 68998. In his reasons for judgment he records the contention of the appellant before him that:

"Nothing should be awarded to Mrs Thorne in respect of services which Mr Thorne provided for her except those not otherwise claimed in the earlier action. He submits that the proper approach is to look at the pleadings and particulars in the other action which after making a classic Griffiths v. Kerkemeyer claim in respect of the plaintiff's inability 'to live without assistance' went on:

'The plaintiff has suffered financial loss in that he has lost the ability to perform household repairs and maintenance and other services at the family home:

Those are particularised as follows:

'The plaintiff undertook general maintenance of the house and yard including painting, fence repairs, weeding, mowing, pruning and concreting. He carried out some mechanical repairs and servicing of the family motor vehicle. He was willing and able to look after the children on his own at times. He often drove his wife and children to work and school and to and from leisure activities'."

Those particulars were taken from the statement of claim delivered in the action of the respondent's husband which was compromised. The comments in the opinion of his counsel used on the application to sanction the settlement of his action no doubt had some regard to those particulars, although one might think more regard would have been paid to the evidence available to the respondent husband to support those particulars.

The learned trial judge continued:

"I have already observed that in my opinion that formulation does not cover everything which is implicit in Mr Thorne's having provided sufficient assistance with the domestic affairs and the children to permit Mrs Thorne to work full time. The passage in Norman v. Sutton I have referred to seems to me to indicate that a more refined approach is in order than simply examining what was claimed in the pleadings in the injured person's action or claim when doubling up in a loss of consortium action is sought to be avoided. The New South Wales Court of Appeal seems to me to be indicating that the later Court's task is to determine as accurately as it can what the basis of an earlier judgment or settlement was. In this case perhaps for accidental reasons I know what it was having access to the joint opinion of Mr Griffin Q.C. and Mr Ford of counsel (i.e. counsel for the respondent's husband in his action)."

The opinion used in obtaining a sanction of the compromise of the action of the respondent's husband was tendered without objection. Its admissibility in this action was not argued. I find it of little assistance in considering the issues addressed upon this appeal in any event.

The respondent's cause of action in this case was separate and quite distinct from

that of her husband which was compromised.

The avoidance of duplication of damages does not require that damages which the respondent proved she sustained by reason of the physical injury inflicted on her husband and for which neither she nor her husband has been compensated be disregarded or reduced by paying regard solely to the terms of the compromise of her husband's action construed only in the light of the pleadings in that action to which of course she was not a party. Her cause of action is quite separate from and independent of his. Norman v. Sutton stressed that a court should do its best to ensure against duplication of compensation as a matter of fairness to the defendant. I do not read the observations in that case as authority for the proposition that in this case the court may have regard only to the pleadings and particulars of claim in the compromised action and disregard evidence called to support the respondent's independent cause of action. Undoubtedly care must be taken to avoid awarding to one spouse in respect of his or her separate cause of action damages for an item of loss for which the other spouse has already been compensated on the principle of Griffiths v. Kerkemeyer. However, in my view, that does not result in the respondent being prevented from establishing precisely what damage she has suffered by reason of the injury inflicted on her husband or from leading evidence generally to demonstrate that no payment was made under the compromise in respect of that particular damage under the principle of Griffiths v. Kerkemeyer.

In my view to determine the question of duplication of damages having regard only to the particulars of claim in the compromised action and without regard to evidence available on it or led in the present action would be to give an effect to the compromise altogether out of line with the principle of res inter alios acta long regarded as fundamental in cases where there is no privity or identity of interest between parties with separate and independent causes of action. I would be extremely reluctant to permit such a fundamental principle to be circumvented under the guise of arguably avoiding a duplication of damages. To do so would be akin to holding the respondent in this case estopped by the terms of her husband's compromised cause of action. In my view such a result cannot be justified by the assertion merely that it is necessary to do so to avoid duplication of damages. Whether in any particular case where an action has been compromised there will or may be a duplication of damages is a matter to be determined upon the whole of the evidence and not merely upon the content of pleadings in the compromised action. Having regard to the observations in Norman v. Sutton (supra) at p. 68998 (Col 1), I take the view that the onus was on the appellant to show that the respondent's husband had already been compensated for the loss of services in respect of which the respondent was awarded damages. In my judgment that onus was not discharged.

The learned trial judge assessed damages for loss of consortium in the sum of

$30,000. The appellant does not challenge that assessment.

His Honour then went on to assess damages for past loss of servitium in the sum of $50,000 and for the loss of future servitium in the sum of $30,000. The appellant challenges both assessments.

Counsel for the respondent had contended for the assessment for loss of servitium between date of injury and date of trial at the sum of $55,000 being 14 hours per week at the rate of $8 per hour. He contended for the assessment of future loss of servitium at the sum of $43,000, being the present loss of $140 per week for 7 years using the 5% tables. His Honour observed in the course of his judgment that "It was common ground that consistently with Van Gervan v. Fenton (1992) 175 CLR 327 in the High Court a commercial rate (currently about $10 per hour) ought to be applied in the valuation of lost services in the servitium claim". I take this reference to be directed to the assessment of future loss of servitium.

In making his assessment his Honour indicated the necessity to take account of the vicissitudes of life and other imponderables bearing on the assessment and in particular the fact that the respondent's husband had already suffered a heart attack which had to some degree reduced his life expectancy. The evidence does not show the extent to which that heart attack is to be attributed to the injury inflicted on him by the defendant's negligence.

It is convenient to state briefly the principle upon which damages would have been assessed in the action taken against the appellant by the respondent's husband and also the principle upon which the respondent's claim for damages against the appellant was to be assessed.

With respect to the Griffiths v. Kerkemeyer claim of the respondent's husband, which was compromised in 1991, it is clear that the appellant was liable in damages to the respondent's husband, inter alia, for the market cost of providing all those services which her husband needed as the result of the injury negligently inflicted upon him by the appellant.

He was not required to show that that need would, or might be, productive of financial loss. It was irrelevant that some of the services so needed might be provided gratuitously by the respondent.

With respect to the respondent's claim for loss of consortium/servitium, the basis of that claim is stated in Toohey v. Hollier (1954-55) 92 CLR 618. To the extent that she was entitled to recover damages for the loss of servitium of her husband, she was entitled to damages in respect of any consequential ascertainable loss which she suffered by reason of the deprivation of the services of her husband. Prima facie, the assessment of damages for that deprivation is based upon the market value of the services of which the respondent was deprived. To the extent that she has been deprived of future services, it is necessary of course to take into account contingencies and the vicissitudes of life when assessing the present value of that future loss, although the starting point in taking this account will be the date of injury, rather than date of trial. The injuries inflicted on the respondent's husband may have left him at date of trial with a life expectancy reduced from what it was at and prior to date of injury.

In Van Gervan v. Fenton (supra), Brennan J gave some consideration to the position where by reason of a tortiously inflicted injury a plaintiff has a need for services previously provided without direct cost, because they were incidental to the relationship between the plaintiff and the person with whom he or she was living. His Honour observed at p. 340:

"The question is not easily solved. On the one hand it can hardly be said that the provision of those services is to be attributed to the need created by the plaintiff's injury when those services would have been provided to the plaintiff whether or not he or she had a need for them. On the other hand the rendering of those services in such a relationship is usually mutual and the injury may well have deprived the service provider of the mutual services which the injured plaintiff would have rendered to her or him. The former consideration tends against inclusion in the award of a sum corresponding to the market cost of providing those services; the latter consideration shows that if nothing were allowed in respect of the provision of those services the plaintiff must be made to depend on the self sacrifice of the care provider to answer some of the needs created by the injury.

The assessment of damages though governed by principles which are calculated to provide the plaintiff with full and fair compensation in respect of the needs created by the tortious infliction of injury is necessarily imprecise. It is impossible to quantify with any pretence at precision the net benefit to an injured plaintiff of the company and minor services that he or she would have enjoyed by reason of the personal relationship between the plaintiff and the care provider or to put a value on the company and services which the plaintiff would have provided to the care provider by reason of their personal relationship if the plaintiff had not suffered the injury. In my view the only way to take this factor into account is this: it is appropriate to omit from the list of services to be paid for by the defendant some of the time spent or some of the minor services rendered by the care provider to the plaintiff where those services would have been provided in any event as an incident of an antecedent personal relationship between them provided the plaintiff is able to offer services to the care provider in return. If the plaintiff is unable to offer services to the care provider in return but some pecuniary allowance would be fair compensation to the care provider for the plaintiff's failure to do so, the plaintiff should recover as damages a capital sum representing that allowance - assuming that sum does not exceed the market value of those services provided to the plaintiff by the care provider. The allowance, if any, to be made in respect of this factor may not admit of precise calculation."

In similar vein in the joint judgment of Deane and Dawson JJ at p. 344, it is

observed:

"Nor subject to an important qualification can domestic services which are undertaken as part of the mutual give-and-take of marriage by persons in a marital relationship for the benefit of one another and of their matrimonial establishment legitimately be seen as converted into additional services necessary to attend to the accident caused needs of an injured plaintiff in circumstances where they would have been performed in the same way and to the same extent in any event. The qualification is that such services will be taken out of the area of the ordinary give and take of marriage to the extent that the injuries to the wife or husband preclude her or him from providing any countervailing services. To that extent the continuous gratuitous services provided by the spouse assume a different character and should be treated as additional services which have been or will be provided by that spouse to look after the accident caused needs of the injured plaintiff."

On the facts of the present case, pursuant to the sanction order made upon the compromise of the action of the respondent's husband, she received in respect of a Griffiths v. Kerkemeyer component in her husband's damages payment out of those damages of the sum of $98,340 in respect of necessary services she had provided gratuitously to her husband between January 1985 and the date of compromise of his action in April 1991 - that is during a period of a little in excess of six years. It did not emerge in the evidence in respect of just what services necessarily provided for her husband the respondent received this sum. However, between date of injury and date of compromise of her husband's action a period of approximately 327 weeks elapsed and the sum paid to the respondent in respect of the services she rendered during this time amount to about $300 per week. This calculation ignores any interest component contained in the payment calculated on the market value of the services actually performed by the respondent. However for the purpose of considering the question of duplication of damages this consideration seems to me to have no relevance.

Under the terms of the order sanctioning the compromise made by Senior Master Horton on 26 April 1991 it appears that the balance of moneys to be invested by the Public Trustee - probably something between $300,000 and $320,000 was to be invested and the income paid to the respondent by way of allowance during the time that she continued to give full time care to him utilising her nursing qualifications and nursing attention. The maintenance of this balance of course must depend upon meeting the needs of the respondent's husband without having further resort to it.

The evidence in the case is silent as to how much the respondent received between the date of the sanction of the compromise and the date of trial or how much she was receiving if anything at date of trial. On the assumption that she received interest on the capital sum of say $300,000 at the rate of say 5% per annum this would permit a payment of about $15,000 per annum or approximately $300 per week gross. In the course of his judgment, the learned trial judge dealing with the settlement of the action of the respondent's husband observed:

"... what was envisaged as being incorporated at least on the plaintiff's side of the settlement (i.e. the settlement of the claim of the respondent's husband) was classic Griffiths v. Kerkemeyer loss and perhaps even more specifically "past care" relating to what had been done to look after Mr Thorne. This is distinct in my view from the contributions which he was making to Mrs Thorne which underlies the servitium aspect of a claim such as the present. It will be recalled that the part Griffiths v. Kerkemeyer component of Mr Thorne's damages with interest was paid to Mrs Thorne with the defendant in concurrence."

It is clear from the reasons for judgment under appeal that the learned trial judge took the view that the Griffiths v. Kerkemeyer component of the damages received by the respondent's husband in compromise of his action "did not cover everything which is implicit in Mr Thorne's having provided sufficient assistance with the domestic affairs and the children to permit Mrs Thorne to work full time".

In my view when making this comment his Honour may have been adverting both to the considerations expressed by Brennan, Deane and Dawson JJ in Van Gervan v. Fenton, to which I have already referred, and also to the fact that her loss of the assistance in domestic affairs resulting from the injuries her husband suffered was not adequately, if at all, reflected in the component of his judgment based upon the cost of necessary services he needed recoverable on the Griffiths v. Kerkemeyer principle.

In Norman v. Sutton (supra) it was observed with respect to the facts of that case:

"Both the respondent and Mrs Sutton had their own causes of action.
Although each was derived from the same act of negligence on the part
of the appellant, each was in law a separate claim ... Therefore the
appropriate approach to be taken is to provide the husband with the full
measure of his entitlement to damages. If however it is proved that the
wife has already recovered from the same defendant in respect of the
same incident the Court should do its best to ensure against double
compensation for any component in the husband's claim which was or
might have been included in the wife's. This can be done by the Court
deciding how in fact the wife's recovery was made up. If this is
demonstrated by a judge's reasons for judgment then that should set the
controversy at rest. If there is a jury's verdict or as here a compromise
the court may look to the pleadings and particulars in the wife's claim.
It must then do its best to provide the husband's damages assuring as far
as possible against the risk of double compensation."

Having regard to the evidence of market value of domestic care and personal hygiene care, the cost at date of trial of such care was $840 per week. Five years ago the cost of such care was probably about $670 per week and 10 years ago it was probably about $530 per week.

In my judgment reference to that evidence permitted the learned trial judge to come to the conclusion that the moneys paid to the respondent out of the settlement moneys received upon the compromise of her husband's action in 1991 were referable only to the special nursing care, other supervisory care and housekeeping services which he needed because of his injuries and were referable only to satisfaction of that need prior to the compromise of his action. In my view it was open to the learned trial judge to conclude that no part of that payment made to her related to the provision of any domestic services of a kind which her husband used provide to the respondent to assist her to maintain her employment as a professional nurse or the services he used provide to maintain and repair etc the domestic property such as the car and to do other work in and about the residential premises. Those were all services which benefited the respondent albeit that her husband provided those services for the benefit of the whole family. They were provided as his contribution to the services necessarily provided by both him and the respondent to maintain the family institution. Undoubtedly the respondent also provided necessary services as her contribution to the domestic relationship. The learned trial judge had to assess damages for the undoubted loss that the plaintiff suffered by reason of the loss of servitium of her husband keeping in mind the observations of Brennan, Deane and Dawson JJ in Van Gervan v. Fenton (supra) to which I have referred.

In my view it is unfortunate that the evidence called to support the plaintiff's claim did not show what the market value was of the services of a non-domestic household kind (excluding cooking, cleaning etc) rendered by the husband of the respondent for the benefit of the family generally. It is clear that the domestic household type of services if rendered for between 2 and 3 hours per day prior to trial had a market value of between $130 and $200 per week. It is also clear upon the evidence that with respect to future services of that kind the market value is between $189 and $283 per week.

Adopting the approach of Brennan, Deane and Dawson JJ in Van Gervan's case, to which I have referred, one may infer that the non-domestic services rendered to the respondent by her husband and from which she benefited had a market value in addition to that which the domestic services had, although on the evidence it could not be said with confidence what that market value was. It is probably open to infer that the value would be not less than $10 to $15 per week.

In my view, the evidence as to the domestic and other services provided by her husband to the respondent and their market value was such as clearly to support the assessment made by the learned trial judge for pre-trial loss of servitium. In effect the sum awarded is less than the loss of $100 per week for 10 years. With respect to the assessment for future loss, it is my view that it was a moderate one, taking into account not merely the established market value of services generally at the time of trial and prior to trial, but also the allowance made for contingencies with respect to the assessment of future loss. In effect the sum awarded is less than the present value of the loss of $100.00 per week for seven years.

I would dismiss the appeal.