Weinert v Schmidt

WEINERT v SCHMIDT
[2002] SASC 340
Full Court: Perry, Williams and Gray JJ

PERRY J I have had the benefit of perusing in draft the reasons for judgment of Gray J, with which, with one exception which I will come to, I agree.
In particular, I agree that there should be a finding of contributory negligence on the part of the respondent, and that it is appropriate to reduce the damages otherwise recoverable by her on that score by 10%.
As for the appeal and cross-appeal on the question of damages, I would allow the cross-appeal, which was limited to the assessment of the amount to be allowed for loss of superannuation benefits, and I agree that it should be increased to $75,000.
Furthermore, I agree with Gray J that the learned trial judge was in error in awarding $530,000 for future gratuitous services. The evidence did not justify an award of those dimensions on that head of damage.
The point of difference I have with the reasons of Gray J is that, with respect to him, I do not agree that it is appropriate to allow in favour of the respondent an award of damages to compensate for her ability to provide services to other members of her family.
I dealt with this topic at some length in my decision in Kite and Anor v Malycha.[1] In that case a specific claim was advanced on behalf of the plaintiff who, as I found, was entitled to damages for the negligent failure of a surgeon to diagnose and treat a malignant breast tumour, for loss of the plaintiff’s capacity as a homemaker.
[1] (1998) 71 SASR 321.
My judgment was delivered soon after the decision of the Queensland Court of Appeal in Sturch v Willmott.[2] In that case, the court upheld, and indeed increased, an award of damages to reflect the value of the plaintiff’s services which she would have provided to her children were it not for the negligence of the defendant.
[2] [1997] 2 Qd R 310.
In my judgment in the Kite case, I set out my reasons for declining to follow that decision. I will not pause to repeat those reasons here, although I adhere to the position which I expressed in the Kite case, notwithstanding subsequent developments in the case law on the topic throughout Australia.[3] As I pointed out in Kite:[4]
“If the common law is to undergo change in this area, I think it better that the existing common law remedy for loss of services, at present only available to the husband (and in South Australia, by statutory extension, to a wife[5]) be extended to children or other dependents during the lifetime of the mother, rather than leaving such claims to be dealt with under Lord Campbell’s Act legislation. .... In ordinary circumstances, where there is an impairment of the homemaker’s ability to discharge that role, it should be met by an action for loss of services by any family member affected by it. If the ability is lost through death, Part 2 [of the Wrongs Act 1936] affords an appropriate remedy. Change to the common law to give rise to this result would create far fewer anomalies and be much more consistent with basic principle than would be the case if Mrs Kite’s claim was to be allowed on any of the bases contended for.”
[3] This is conveniently summarised in Luntz, Assessment of Damages for Personal Injury and Death, 4^th edition, 2002, para [4.1.13] headed “Housekeeping Services provided to Others”, page 259.
[4] Ibid 343.
[5] See s 33 of the Wrongs Act 1934.
Notwithstanding the trend of authority in recent years,[6] I think it better that persons who suffer the impact of a given loss, in this case the family of the injured homemaker, have an action in their own right. At least in such circumstances one can be sure that the award of damages will be received by those who have suffered the impact of the loss. Such a result cannot necessarily be guaranteed if damages with respect to the impact of the loss on others are to be paid to the injured party. When that occurs, there is no guarantee that the damages will be utilised to replace the services for which the loss of the capacity to provide is intended to compensate.
[6] See the comprehensive analysis of trends, and discussion of the legal, social and political influences underlying them, by Spigelman CJ in his paper Negligence: The last outpost of the Welfare State, delivered to the Sixth Colloquium of the Judicial Conference of Australia, Launceston, April 2002 and republished in the collected papers of the conference.
In any event, I do not accept that this is an appropriate case in which to make an award of the kind in question.
So far as I can see, there is no claim for an award on this head, as opposed to loss of voluntary services to be provided to the plaintiff, in the District Court. There is no mention of such a claim in the judgment under appeal. Neither is there a reference to this head of damages in either the notice of appeal or the notice of cross-appeal. Mr Trim QC, who appeared for the respondent, did not address an argument suggesting that his client should have, but was not, given the benefit of an award on this head. Rather, he directed his arguments towards upholding the award of $530,000 for the provision of future care and assistance to the respondent.
Notwithstanding those observations, I nonetheless agree with the revised calculation of damages put forward by Gray J. The amount which he allows for loss of the provision of gratuitous services in the future, namely $200,000, in which he incorporates an allowance for future loss of housekeeping capacity, is in my view, an appropriate amount for the loss of future gratuitous services standing alone.
I therefore agree that the reassessment of damages should be in the amount of $1,191,326.36, and that the award of that amount should be reduced by 10% by reference to the respondent’s contributory negligence.
In the result, the appeal and cross-appeal should be allowed. The judgment under appeal should be quashed, and there should be substituted a judgment in favour of the plaintiff against the defendant in the sum of $1,072,193.73 plus interest.
It will be necessary to hear the parties on the question of interest and costs.
WILLIAMS J In my opinion no award of damages should be made to compensate the respondent for her inability to provide services to others; upon this point I agree with Perry J. In other respects I agree with the reasons of Gray J and I concur in the orders which he proposes.
GRAY J This is an appeal against a judgment in favour of a plaintiff following a vehicle collision on an unsealed narrow country road.
The trial proceeded before a judge of the District Court who concluded that the defendant Allan Edwin Weinert (the appellant) was negligent. He exonerated the plaintiff Heather Schmidt (the respondent) from negligence. Ms Schmidt sustained severe personal injury in the collision. Her damages were assessed at $1, 458,326.36[7].
[7] Judgment was entered in that sum together with interest and costs.
Circumstances of the Collision
On Monday 24 November 1997 at about 12.10 pm Mr Weinert was driving a petrol tanker in a northerly direction on Mount Road Mount Crawford. It was a non articulated vehicle. He approached a bend in the road to his right. Ms Schmidt was driving a small vehicle in a southerly direction to the north of the bend. The vehicles collided some 35 metres to the south of the bend. As a result Ms Schmidt’s vehicle was extensively damaged.
Mr Weinert was travelling on a route that was well known to him. As he drove north his vehicle was in the centre of Mount Road partly on the incorrect side of the road. He was travelling at about 50 kilometres an hour. In accordance with his usual practice he de-accelerated as he approached the bend. He first observed Ms Schmidt’s vehicle as it proceeded towards him around the bend. He described the right rear side of her vehicle as “drifting out”. He estimated her speed to be about 70 kilometres an hour. Mr Weinert applied his brakes when he saw the vehicle coming out of the bend. He did not move to the left. The tanker’s speed had reduced to about 10 kilometres an hour when the collision occurred. At impact the tanker was partly on the incorrect side of the road. His account was that Ms Schmidt lost control of her vehicle and that the near side front door collided with the front of his tanker.
Ms Schmidt’s account was markedly different. She was familiar with Mount Road. She was aware that it was usual for trucks to travel in the middle of the road because of a need to avoid overhanging tree branches. As a result she was aware that trucks travelled partly on the incorrect side of the road. As she travelled south and approached the bend her speed was about 40 kilometres an hour. Her vehicle was in third gear. She caught a glimpse of the cabin of the tanker before she entered the bend. She was unable to determine its position on the road or its speed at that time. Ms Schmidt described the bend as a “sharp bend”.
Ms Schmidt continued around the bend reducing her speed to about 30 kilometres an hour. She was aware that the road surface was slippery. When she came out of the bend she saw the tanker coming towards her in the middle of the road. She realised that it was travelling on the incorrect side of the road but continued on as she thought that the driver would pull over to the left. She soon realised that the tanker was not altering its course of travel or position on the road. She heard the tanker’s horn. Her vehicle “twitched” as a result of its wheels coming into contact with loose material on the side of the road. Her vehicle moved to the right. Apart from the reduction of speed before the bend Ms Schmidt did not apply her brakes. A collision occurred.
Ian Craig Tanner came upon the scene after the collision. He claimed to have seen skid marks leading to Ms Schmidt’s vehicle.
Police attended at the scene[8]. Photographs were taken of the position of the vehicles after impact as well as general views of the area including Mount Road both north and south of the bend. These photographs confirmed the presence of overhanging trees. The road was raised in the centre and sloped to a grassy verge on either side. The surface of the road was unsealed. It could be described as a typical country road. There was a small area of loose raised material on either side of the road. There would appear to have been sufficient space for the vehicle and tanker to have passed had the tanker remained in the middle of the road.
[8] No police were called to give evidence. No plan of the scene was tendered to depict the position of the vehicles, the point of impact or other marks on the road.
It was not disputed that the bend in the road together with the trees and the vegetation on the side of the road cause a substantial obstruction to view. Glimpses of approaching vehicles were possible, however both views were substantially restricted.
The Judge’s Findings on Liability
The judge preferred Ms Schmidt’s account of the incident to that of Mr Weinert. Some aspects of her evidence were discounted but the judge otherwise considered that her account was accurate and reliable. The judge concluded:
“... I was impressed with the plaintiff’s recollection, and the clarity of her evidence. There appeared to me to be no reason why her recollection of the period of her first observation through the tree to the moment of the collision cannot be relied upon.
The Judge rejected Mr Weinert’s account:
“It was the defendant’s evidence that his speed along Mount Road was approximately 50 kilometres per hour but it could have been 60 kilometres per hour. In his evidence in chief he guessed that when he had first seen the Barina it was about 50 metres from him and travelling at about 70 kilometres per hour. But he said, frankly, “…as I say, it’s only a guess. It’s a long time ago and it’s – well, it’s a split second.” On the whole of the evidence, and bearing in mind the opinion of the expert witnesses, to which I shall refer at a later stage, it is obvious that that estimate can not be correct and that the plaintiff’s speed was much closer to the plaintiff’s evidence of it.”
The judge also rejected the evidence of Mr Tanner:
“Whilst the absence of Mr Tanner’s evidence would have been the subject of criticism, I do [not] think that I can place reliance upon it. From his position he could not have been expected to observe the position of the defendant’s truck in the short distance prior to impact. The fact that he could not observe any obvious injuries and his general impression that there was no obvious sign of bleeding suggest to me that what must have been an horrific sight, given the extent of damage to the plaintiff’s vehicle and the frightening nature of the experience, his recollection is flawed, and I cannot place reliance upon him.”
The judge concluded:
“There is no difficulty in coming to the conclusion that the defendant was negligent in the manner of driving of his truck in allowing it to remain in a position effectively straddling the centre of the road as it approached the bend and I make that primary finding. I think also that the defendant was negligent in his lookout. The plaintiff was able to observe the defendant’s truck when a distance of about 200 metres separated them. The defendant did not observe the plaintiff’s vehicle until approximately 50 metres separated them.
Ultimately, I come to the conclusion, on the balance of probabilities, that the plaintiff upon rounding the bend to her left was confronted with the sight of the defendant’s vehicle effectively straddling the imaginary centre line of the road; that she took evasive action by steering her car to the left; that she hit the mound of gravel on the left hand side of the road, overcorrected by steering sharply to the right and in the course of doing that lost control so that the left hand side of her vehicle was forced into the path of the truck so that the collision which I have described occurred.
I cannot see that there is any reasonable basis upon which it can be concluded that the plaintiff was negligent.”
Issues on Appeal - Liability
Counsel for Mr Weinert complained that the judge had made inappropriate findings about credibility, proceeded on material misapprehensions of fact and erred in exonerating Ms Schmidt of any responsibility for the collision.
Credibility
Counsel for Mr Weinert complained about the judge’s findings on credibility. It was not suggested that the errors of fact permeated the credibility findings. It was suggested that the overall weight of the evidence and the commonsense of the situation necessitated the rejection of Ms Schmidt as a credible witness. Emphasis was placed on her extensive injuries and their likely effect on her memory and suggested inconsistencies in her testimony. It was also said that Ms Schmidt’s account was inconsistent with the evidence of Mr Tanner the defence expert, and Mr Weinert’s clear account of the collision. As a result it was said that Ms Schmidt’s account should be rejected as unreliable.
Counsel for Ms Schmidt contended that this submission amounted to no more than a repetition of the arguments that were put at trial. It was said that the judge was entitled to come to the conclusions reached. These conclusions were reasonable, supported by the evidence and open as discretionary findings. No error in approach was identified.
In Devries v Australian National Railways Commission[9] Brennan, Gaudron and McHugh JJ observed:
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use of has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable'.”
These principles were discussed in State Rail Authority of New South Wales v Earthline Constructions Pty. Ltd (In Liq)[10]. Kirby J said:
“Appellate judges must necessarily perform their statutory function. They must rehear the matter and form their own conclusions on the evidence recorded at the trial. Rising to their duty, they must condescend to a re-examination of the facts, if their statutory charter so requires or permits. Yet that re-examination obliges appellate judges to take into account, and give full weight to, the advantages which the trial judge had and which, in the nature of their different functions and purpose, they may not have.”
Kirby J acknowledged the technological and social advances that have increased an appellate court’s ability to assess a witness’s credibility. However he continued:
“None of the foregoing considerations requires the abandonment of the respect which appellate courts, by present legal authority, must pay to the advantages enjoyed by the trial judge. Instead, they require renewed attention to precisely what the advantages are which the trial judge has over those enjoyed by the appellate court, conducting a second look at the facts, usually with more opportunity to evaluate particular facts than is possible in the midst of a trial and with the appellate advantage of viewing such facts in the context of the record of the complete trial hearing.”
[9] (1992-93) 177 CLR 472 at 479
[10] (1999) 73 ALJR 306 at 330
Each party called an independent engineering expert. Their respective reconstructions of the collision were similar but there were some differences. The judge preferred the opinions of the expert called by Ms Schmidt to those of the defendant’s expert. The judge concluded:
“There is little to separate the opinions of the two experts except from the slight difference in their opinions as to the speed of the two vehicles at impact. Mr Hall disagreed with Mr Aust’s interpretation of the skid marks indicated in the photograph and disagreed with comments made by Mr Aust as to the damage to the frontal area of the plaintiff’s Barina on the basis that clearly (as I accept) the left hand side of the Barina was crushed by the defendant’s truck.
Whilst there is little conflict between the two witnesses, except as to the question of the speed of the plaintiff’s Barina, having heard them both in chief and under cross-examination, I prefer the evidence of Mr Hall wherever there is a conflict of opinion between him and Mr Aust.”
On critical aspects of the incident Ms Schmidt’s account received a level of support from this expert. The Judge also noted that Mr Weinert conceded that he had only seen Ms Schmidt’s vehicle for a split second before impact.
No error has been shown on the part of the judge. He has not been shown to have had regard to irrelevant material or failed to have had regard to relevant material. He has not arrived at a palpably inappropriate conclusion. His acceptance and rejection of each of the witnesses’ evidence were open to him.
The judge was entitled to generally accept and act on Ms Schmidt’s evidence. The judge was entitled to reject the evidence of Mr Weinert. No error has been shown in the rejection of Mr Tanner’s evidence. The judge was entitled to prefer the evidence of the expert called by Ms Schmidt.
Errors of Fact
It was complained that the judge made two errors of fact. It was said that he misunderstood Ms Schmidt’s evidence about when she first saw the tanker.
The judge proceeded on the basis that Ms Schmidt observed the tanker as she came out of the bend and that it was then 200 metres away. Her evidence was that the distance of the tanker from her vehicle at that time was about 50 metres. The 200 metres referred to by Ms Schmidt was the distance between the vehicle and the tanker when she initially caught a glimpse of its cabin before she entered the bend.

The second error identified related to the path of Ms Schmidt’s vehicle shortly before impact. It was said that the judge understood that Ms Schmidt had moved her vehicle “sharply” to the right after she had encountered difficulty with the loose material at the left of the road. This was a misunderstanding. Ms Schmidt spoke of moving to the right but did not speak of having turned “sharply”.
These errors were material. They show that the judge misapprehended the circumstances of the collision. There is a significant difference between Ms Schmidt observing the tanker cabin through trees across a bend in the road and an observation of the tanker as Ms Schmidt came through the bend. The sharp movement to the right would appear to be as a result of Ms Schmidt losing control of the vehicle on the loose material and oversteering rather than a deliberate driving manoeuvre. These errors of fact require this court to carefully review all of the evidence and reconsider the issue of negligence.
These errors however do not undermine the judge’s finding that Ms Schmidt was a reliable witness. On both matters Ms Schmidt’s evidence had been straight forward. As earlier observed the judge misunderstood her evidence.
Mr Weinert’s Negligence
Counsel for Mr Weinert complained about the finding of negligence made against him. This complaint must be rejected. On Mr Weinert’s own admission he was driving a heavy tanker[11] approaching a bend where visibility was substantially obscured and his vehicle was partly on the incorrect side of the road. These matters establish negligence. In any event Mr Weinert’s negligence was conceded during addresses at trial. On appeal it was accepted that this concession had been made. Accordingly there is no need to further consider the complaint
Ms Schmidt’s Negligence
[11] The tanker was said to weigh approximately 13 tonnes
Mr Weinert further complained about the finding that Ms Schmidt was not guilty of negligence. There is substance to this complaint. The errors of fact identified earlier demonstrate that the judge misunderstood aspects of Ms Schmidt’s evidence. Additionally the judge did not address the issue of defensive driving and what if any steps Ms Schmidt should have taken as she was approaching the bend. Ms Schmidt was aware that the tanker was travelling north and approaching the bend. From her experience she knew that the driver’s view of her approach was obscured and that if the tanker driver was driving in accordance with usual practice the tanker may be partly on the incorrect side of the road. Ms Schmidt was not entitled to assume that the tanker driver would see her in sufficient time to move to the left enabling her vehicle to pass safely.
The circumstances of this collision attract the salutary remarks of Wells J in Stoekel v Harpas[12]. Although made three decades ago these observations remain apposite:
"Three or four decades ago it was, speaking generally, reasonable to expect a driver to deal with the exigencies of motor and pedestrian traffic as they presented themselves from moment to moment, but he was not asked to look very far ahead and to seek out possible trouble. Today, I think that the situation has changed fundamentally. Population has increased; a high proportion of families have at least one car and not infrequently two; accidents are numerous; and death on the roads has become tragically familiar. In these circumstances, I think courts, when performing the role of a jury, are entitled, indeed bound, to require of motorists a measure of what is sometimes called defensive driving, or a look out that not only sees immediate, or immediately developing, danger, but looks well ahead and searches for potential danger. Nowadays, for example, a young child on the footpath is not just a person so many feet away, but is a human being that may suddenly present himself in your path; a green light is not just an authority to spring off the mark without further thought, but is an invitation to look to right and left before moving off in case someone is trying unsuccessfully to beat the lights; a bus is not just a stationary vehicle, but represents cover from which, at any time, a pedestrian may emerge; a car with its turning flicker on may not be going to turn, but may have left his flicker on inadvertently; the car that you are following is to be kept a respectable distance in front of you because, at any moment, the driver may stop or slow down virtually without notice; a crest in the road is not just another part of the road, but is a danger point where a motorist, coming in the opposite direction, may well seek to pass on the rise. All these situations, and countless others besides, call for consideration by the reasonable driver because experience has repeatedly shown that perils on the road, as time goes by, seem to be giving less and less warning of their emergence. Of course, what I have said has its corollaries for other road users, but because of the marked increase in the power, weight and speed of today's vehicles, as compared with those of the immediate post-war period, the implications for the drivers of motor vehicles are, in my view, stronger. The courts have, from time to time, spoken of the need to guard against human follies, but, in my opinion, there is a need for courts to emphasize that the guarding referred to includes an ever-present attempt to foresee dangers well ahead of the immediate driving situation."
In Walton v Rowbottom[13] von Doussa J observed that community expectations for careful driving had heightened since 1971:
"...The cost to the community of death, bodily injury and property damage on the road, has continued to grow. In an effort to encourage greater care and to deter bad driving penalties for offences under the Road Traffic Act have been progressively increased. The community now requires not only a measure of defensive driving, but a measure of protective driving - to protect drivers, cyclists or pedestrians. Drivers must guard against all reasonably foreseeable dangers. Prominent amongst the foreseeable risks which drivers must have in mind is the one that other road users may be careless. ... Many provisions of the Road Traffic Act establish arbitrary standards the breach of which is punishable. They do not establish immutable 'rights' to drive up to the limits prescribed regardless of prevailing circumstances. ..."
[12] (1971) 1 SASR 172 (n)
[13] Unreported Judgment No 9362 17 September 1986
In the present case the judge made a specific finding that Ms Schmidt was aware of the usual practice of truck drivers on Mount Road:
“After she drove her vehicle around the bend to which I have referred, the plaintiff observed the defendant’s vehicle, which she described as being ‘in the middle, middle of the road, coming up the middle’. She said that it was [about] 200 metres away, and then continued, ‘well, normally, in that area, tankers drive up the middle of the road, that’s pretty well normal around there because of the trees that overhang, so I didn’t panic seeing him driving up the middle of the road and I just thought to myself ‘Well, are you going to move over, mate?’ and he didn’t basically.
She said that she steered to the left, hit gravel on her left hand verge, felt her car ‘twitch’, steered sharply to the right, and a collision occurred.”
Ms Schmidt said that she had looked at her speedometer when she was in third gear as she approached the bend and noted her speed. She considered that she needed to change into second gear but was hesitant to take her hands from the steering wheel and remained in third gear as the tanker approached. She was aware that she was travelling at 30 kilometres an hour when she came out of the bend.
Ms Schmidt ought to have been aware that she was approaching a potentially dangerous situation. Her view around the bend was obscured. The road surface was slippery. If Mr Weinert did not see her vehicle until it came through the bend he would have only a minimal time in which to react. The vehicles were approaching at a combined speed of at least 80 kilometres an hour[14]. This would leave less than three seconds for evasive action to be taken. Ordinary reaction time would substantially erode this short period.
[14] On Mr Weinert’s estimate the combined approach speed was 150 kilometres per hour.
Ms Schmidt was under a duty to guard against the possibility that the tanker driver would not see her prior to reaching the bend. She was not entitled to simply assume that he would see her vehicle and move to his left. There was a real risk that Ms Schmidt would confront the tanker at least partly in her path on or shortly after the bend. She was familiar with Mount Road, its width, the condition of its verges and the existence of overhanging branches. For Ms Schmidt to proceed on the assumption that the tanker driver would move over did not meet the standard of care that a normal prudent driver should exhibit.
There were a number of courses open to Ms Schmidt. She could have reduced her speed so that if she needed to move further to the left she could safely do so. This would more than likely have allowed her to respond more quickly and safely. She could have used her horn. Bearing in mind her knowledge of the usual truck driving practice and the obstruction to view, Ms Schmidt could have slowed or come to a stop prior to reaching the corner. To simply proceed as she did was to drive at a standard below that of a normally prudent driver. The judge was in error in exonerating Ms Schmidt of any negligence.
Apportionment
Section 27A[15] of the Wrongs Act 1936 (SA) requires a consideration of the extent to which Ms Schmidt’s damages should be reduced. The court is required to reduce the damages to such extent as it thinks just and equitable having regard to Ms Schmidt’s share in the responsibility for the damage.
[15] This section was repealed in 2001
The principles guiding the court on the issue of apportionment are well established. They were summarised in Podrebersek v Australian Iron & Steel Pty Ltd[16] as follows:
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v Norris) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd; Smith v McIntyre and Broadhurst v Millman, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."
These remarks were approved by Mason, Wilson and Dawson JJ in Bankstown Foundry Pty Ltd v Braistina[17].
[16] (1985) 59 ALJR 492 at 493-494
[17] (1985-1986) 160 CLR 301 at 311
A comparison of the culpability of the two drivers in this case leads to the conclusion that Mr Weinert was substantially more culpable. As earlier observed he was driving a heavy tanker partly on the incorrect side of an narrow unsealed country road. He left a minimum distance for other vehicles to pass. He maintained his position on the road as he approached a bend at a time when his view was at the least substantially obscured. As the driver of a large heavy-laden vehicle Mr Weinert owed a duty of the utmost care. In Cox v Shepherd[18] Murphy J observed:
“Reasonable care on the part of those in charge of such a vehicle [a huge heavy vehicle] is the utmost care.”
[18] (1979) 53 ALJR 591 at 595 - see also Gibbs J at 594
Ms Schmidt’s culpability was much less. As earlier observed her negligence was in failing to drive defensively. Having regard to the culpabilities of each driver Mr Weinert is to be held 90 per cent responsible for the collision and Ms Schmidt 10 percent responsible.
Issues on Appeal - Damages
A Summary
The impact between the vehicles was severe. The tanker hit Ms Schmidt’s vehicle and partially ran over it. She was trapped for two hours before the roof of her vehicle was cut away and she was freed from the wreck. She was retrieved by helicopter and taken to hospital.
An initial review of Ms Schmidt’s injuries indicated that they were extensive and her life was in danger. They included a closed head injury with a loss of consciousness, damage to the left eye, multiple broken ribs and a punctured lung. Her right leg was fractured both above and below the knee and her left leg was fractured above the knee, near the hip joint. She suffered damage to her teeth, and injuries to her hands, right arm and left elbow.
On arrival at hospital Ms Schmidt was resuscitated and underwent surgery to both legs. She had further surgery within a matter of days. She spent three days in the intensive care unit. She was transferred to the high dependency unit for a week and spent a further week in the orthopaedic ward. She was transferred to the Julia Farr Centre for three weeks. She was then discharged to convalesce at home in the care of her husband. Two weeks after discharge she had further surgery to her right leg. Physiotherapy and hydrotherapy followed. Her mobilisation was delayed given the fractures to both legs and shoulder.
Ms Schmidt suffers permanent disabilities as a result of the collision. She suffers head and neck pain and double vision. She described a “clunking” of her left ribs and “scraping” of the tendons in her upper left leg. She has a hypersensitive area on her right thigh. She has stiffness in the left hip, right wrist and ankle. She suffers numbness in her left hand. Her injuries have resulted in unsteadiness and general weakness. She cannot lift heavy objects and feels insecure performing many tasks as a result of her impaired vision and general instability. The injuries and numerous surgical procedures have left substantial scarring. The judge concluded:
“It appears clear from the opinion of Mr Pohl that her condition will deteriorate in the future, principally because of a probability of the development of osteoarthritis in her joints on either side of the various fractures.”
Ms Schmidt wears glasses to reduce the effects of her double vision. She has a particular problem when she moves her head and with angles of sight. This causes difficulty with tasks such as crossing the road. She has trouble looking quickly from left to right and cannot look down without her balance being affected. She now fears driving and does so only when absolutely necessary.
Counsel for Ms Schmidt summarised the injuries and their effect:
- Ms Schmidt suffered severe personal injury in the collision
-the closed head injury has recovered well in comparative terms but has left a serious problem with double vision and some impairment to memory.
-Ms Schmidt has been left with fear concerning traffic and a state of general anxiety. This state of anxiety is acute when travelling in a vehicle or otherwise in traffic.
-the double vision is disabling, affects balance and has led to a restricted lifestyle
-the fracture injuries have not healed perfectly and have left ongoing disabilities including pain, discomfort and loss of mobility that restricts daily life
-there is a risk of deterioration in regard to aspects of her bone injuries including osteoarthritic changes
-Ms Schmidt will require further treatment in regard to her injuries for the remainder of her life
-Ms Schmidt has suffered a marked loss of earning capacity, will never work again as a nurse and is unlikely to find other remunerative employment
-Ms Schmidt has a limited need for attendant care with respect to some aspects of everyday life
-Ms Schmidt has been unable to fully perform the normal duties of a wife and mother
Numerous medical reports were tendered. A number of medical practitioners also gave evidence. There was little dispute about the nature and extent of Ms Schmidt’s injuries. The argument primarily addressed the extent to which she was affected by her injuries.
The Judge’s Assessment
The judge’s damages assessment was as follows:

Non-economic Loss $69,750.00

Pre-trial economic Loss $68,183.51

Future economic Loss $620,000.00

Future Medical Expenses $7,863.90

Loss of Superannuation $12,000.00

Past Voluntary Services $103,000.00

Expenses of Future Care and Assistance $530,000.00

Special Damages as Agreed $45,028.95

Travelling Expenses – Plaintiff’s Parents $2,500.00

$1,458,326.36

Loss of Earning Capacity

The judge made the following findings concerning Ms Schmidt’s loss of earning capacity:
“The plaintiff was aged 24 at the time of the collision. She was a registered nurse, a registration which she maintains at the present time, although she has been unable to obtain work with The Queen Elizabeth Hospital. She is now 28 years of age. It is obvious to me that she had enjoyed her work very much and been anxious for promotion. That is borne out by the evidence of Patricia Nora Blowes, currently the Acting Divisional Director of Surgical Nursing at The Queen Elizabeth Hospital, a most experienced nurse who has held a series of senior positions. She had known the plaintiff for some time as a nurse working in one of the wards for which Ms Blowes was responsible. She described the quality of the plaintiff’s work as “very, very good”, and whilst it is relevant under another head of damage, she was of the opinion that the plaintiff had the potential to develop professionally to higher levels of nursing and to take senior positions.
For the purpose for this head of damage however, it is clear, Ms Blowes opinion of the plaintiff reinforces the evidence of the plaintiff herself, that she was an enthusiastic nurse, devoted to that profession, and that she enjoyed her work.
...
My finding is on the balance of all that evidence that, to put it simply, The Queen Elizabeth Hospital was not prepared to re-employ the plaintiff because, as it was put to her by the hospital, she was a worker’s compensation risk. Obviously, also, she has severe physical limitations, and impairment of her sight. For practical purposes I think that that situation will maintain for the rest of her life, and will preclude her from employment as a nurse, and indeed most, if not all, forms of employment.
...
First of those, of course, is the potential for the plaintiff to exploit (to use Mr Day’s word) her residual earning capacity. My view is that there is none. Mr Day argued that there was some residual earning capacity but in view of the plaintiff’s skeletal and visual incapacities, and the disturbance of her balance, there is no real prospect, in my view, of her ever being employed, even in a limited nursing capacity such as in taking blood.
...
It is obvious that if the plaintiff considered returning to work of a more manual nature she would simply be unable to perform it. She has a very limited capacity to perform her domestic tasks, for example being able to vacuum only one room at a time; having difficulty hanging out washing; needing assistance to stand from a crouched position and so on. She has a limited capacity to walk to the extent, as I have said, that she cannot walk more than a few hundred metres without protection and assistance.
It is clear to me, as Mr Day submitted, that the plaintiff is a highly motivated and determined woman who has made a remarkable recovery from very serious injuries, but despite that it seems to me, sad as it is to say, that the plaintiff has entirely lost her earning capacity both in the physical sense and in a practical one to the extent that in the labour market she is unemployable. If there is some specialised job which she could do, I cannot think of it. But if there were, it would be extremely unlikely that she would be employed.
...
As far as her future career was concerned, it must be remembered that she had completed her Bachelor of Nursing Degree in 1992. As I have said, Ms Blowes described her nursing skills as ‘very, very good’. It was Ms Blowes opinion that, in terms of the plaintiff’s promotion prospects, the plaintiff was ‘she was a very good nurse.…if she had continued to professionally develop….I think she would have probably had the potential to apply for whatever senior jobs were being offered and may have been successful in her application for these positions’ ”.

Counsel for Mr Weinert complained about the finding that Ms Schmidt was to be compensated on the basis of a total loss of earning capacity. It was said that despite the severity of her injuries she could be expected to find some employment. Apart from the possibility of work within the nursing profession and “clerical or light duties” nothing further was identified.
As earlier observed the judge found that because of Ms Schmidt’s disabilities she was unlikely to find any work in the nursing profession even of a light nature. This was in part related to the likelihood that employers would view her as a poor workers compensation risk. Evidence from the expert witnesses supported the view that Ms Schmidt was unlikely to find remunerative employment. The conclusions of the judge in this respect were well supported by the evidence.
The judge’s allowance proceeded on the basis that Ms Schmidt’s pre-accident capacity would not be exercised beyond 60 years of age. Ms Schmidt said that she would have retired at the age of 60 years. The judge made no allowance for the possibility that she may exercise her earning capacity after she attained that age[19]. The evidence supported the conclusion that Ms Schmidt had previously had prospects of promotion. The positive contingencies in this case may well outweigh the negative contingencies. In Bresatz v Przibilla[20] as Windeyer J observed:
“All ‘contingencies’ are not adverse: all ‘vicissitudes’ are not harmful. A particular plaintiff might have had prospects of chances of advancement and increasingly remunerative employment. Why count the buffets and ignore the rewards of fortune? Each case depends upon its own case.”
[19] Medlin v SGIC (1994-1995) 182 CLR 1
[20] (1962) 108 CLR 541
The award for future loss of earning capacity was well justified.
Superannuation
It was accepted by both parties that the judge had not properly assessed the damages which arose from Ms Schmidt’s loss of superannuation benefits. This was linked to her loss of earning capacity as the benefits arose as an incident of her employment. Counsel for Ms Schmidt sought the present day value of the loss of superannuation benefits. The benefits represented amounts that would have been paid by Ms Schmidt’s employer to the benefit of Ms Schmidt pursuant to a statutory obligation. The actuarial calculations were not in dispute and led to a total value of approximately $75,000. This calculation was based on retirement at age 50 years. The resultant amount of $75,000 for both past and future loss was a conservative and reasonable estimate. An amount of $63,000.00 should be added to the award to compensate for this loss.[21]
Gratuitous Services
[21] This complaint was the subject of the cross appeal.
The judge made a substantial award in respect of Ms Schmidt’s need for future gratuitous services:
“The plaintiff is content to adopt a calculation on the basis that the plaintiff’s condition will not deteriorate. It is my view, on the evidence of Mr Pohl, that it probably will, but on the other hand as the children grow, the demands on the plaintiff and therefore the demands on her husband to assist her may well decline. Using the current rates set and accepted in Exhibit P10, and assuming a similar rate of 4 hours assistance per day will continue for the whole of life, based on the actuarial calculations, the submission is that I should allow $531,804.00 under this head. I allow $530,000.00 for future care and assistance.”
Counsel for Mr Weinert complained that the evidence did not support the existence of a need for four hours daily assistance throughout life. An analysis of the evidence demonstrates that the estimate four hours a day was arrived at having regard to tasks performed by Ms Schmidt’s husband in and around the house, partly for his own benefit, partly for his wife’s benefit and partly for the benefit of their children. Those tasks included bathing the children, mowing the lawn and assisting to clean the house.
Counsel for Ms Schmidt contended that Ms Schmidt’s injuries affected her every day living. Her injuries and ongoing disabilities left her with a dependency and a need for the services of others.
Ms Schmidt described how her disabilities gave rise to a need for assistance. Her double vision creates difficulty in negotiating traffic, using supermarket trolleys and generally with respect to balance. She described the everyday tasks to which she could attend, given sufficient time. She said that she was able to attend to her personal needs including showering and dressing. She regularly undertook the preparation and cooking of meals for the family. Other tasks could be performed but with considerable difficulty and over an extended period. She was able to clean and vacuum the house. However it would take longer time than previously due to general weakness and pain. She could undertake general gardening, but not if it involved bending down or squatting. She felt capable of undertaking renovating work, although tasks on ladders caused problems with her balance.
Ms Schmidt is likely to continue to require assistance from time to time. Over time however she is likely to adapt to this particular disability and develop techniques to compensate for her difficulties. Ms Schmidt will be unfit for heavy duties and will require assistance from time to time with lifting heavy objects, shopping and with difficult or awkward manoeuvres. Again over time she is likely to develop techniques to cope with these difficulties.
An allowance must be made for Ms Schmidt’s ongoing needs. However the evidence fell well short of establishing a need for four hours daily assistance for the rest of her life. That estimate came from Ms Schmidt’s husband. The evidence was general. No detailed analysis of Ms Schmidt’s needs and the assistance provided was undertaken. The estimate may well have reflected attendances at earlier stages of Ms Schmidt’s recovery. Ms Schmidt is to be compensated on the basis of a total loss of earning capacity. This necessarily gives her considerably more time to attend to every day activities. A task that might be beyond her given limited time may be well within her capabilities over an extended time.
Counsel for Ms Schmidt also submitted that Ms Schmidt’s injuries affected her ability to provide for others. In particular reference was made to her restricted ability to care for her children and her husband and the ongoing nature of this disability. Ms Schmidt’s injuries make it difficult for her to lift her young children, cope with loads of heavy washing or attend to shopping. Other domestic chores present problems when heavy lifting, bending or squatting is required. It was said that as a result of Ms Schmidt’s character, aptitude and ability to make the best of her circumstances, it is likely that she will be able to complete most of the general range of daily chores usually attended to by a wife with young children.
As earlier observed Ms Schmidt sustained severe personal injury leaving her with permanent disabilities. Her injuries are such that she has suffered a diminution in her ability to undertake a number of everyday activities and she suffers restriction in her ability to care for her husband and young children. Much of what she can do is now performed at a slower pace. Over time a number of her problems will worsen with the ageing process, although it is likely that she will further adjust to her disabilities. It is clear that Ms Schmidt has suffered a diminution in her capacity to perform domestic services and to care for others. Her capacity to manage her household has been diminished. It is pertinent to recall that:
“care for children, the aged the sick, people with disabilities and people unable to look after themselves is considered quintessentially women’s work.”[22]
[22] Graycar “Love’s Labour’s Cost The High Court Decision in Van Gervan v Fenton” (1993) 1 (2) Torts Law Journal 122 at 123
At the same time Ms Schmidt has the need for the services of others from time to time. There are tasks that she is unable to perform. Her husband provides assistance and support. As a number of the tasks are directed to the general family benefit there is an overlap between meeting her needs and addressing her loss of capacity to provide for the needs of others.
It is well settled that Ms Schmidt is entitled to compensation for the loss of the capacity to look after herself and the resulting need for services or care. It is also settled that it is not to the point that the needs may be met by the gratuity of others. The approach of the High Court has emphasised that compensation is to be awarded for a plaintiff’s need for services of others arising from injury. However this need arises as a result of a plaintiff’s loss or impairment of the ability to care for themselves. Viewed in this way the recovery is for a loss of capacity. The measure of compensation is the reasonable cost of meeting the need.[23]
[23] Griffiths v Kerkemeyer (1977-78) 139 CLR 161, Van Gervan v Fenton (1991-1992) 175 CLR 327
The court’s approach to awarding compensation for loss of capacity to work in the home has changed. In recent times it has been recognised that
“For many women and some men, their own needs extend to care for other members of the family as naturally as they extend to the capacity to attend to their own personal functions.[24]”
[24] Sullivan v Gordon (1998-1999) 47 NSWLR 319 at 322
Professor Harold Luntz[25] described the historical position and the change.
[25] Harold Luntz, Assessment of Damages for Personal Injury and Death (4^th edition, 2002) 259-261
In the past a loss of capacity to undertake housework and other gratuitous services for the benefit of family was seen as a loss to the family rather than a loss to the individual who previously provided the services. A family member could in some cases recover damages where the injured person died and the services that they previously provided had to be replaced. If an injured person survived, then damages could be pursued through an action for loss of consortium.[26]
[26] Case law suggests that this was only an action open to a husband, not a wife. This type of action has been widely criticised and abolished in some jurisdictions.
Another approach has been preferred by many courts. This approach involves the consideration that a loss of capacity to provide gratuitous services to others is to be treated as the injured person’s loss. A plaintiff in this position may recover damages on this basis or by extending the principles identified by the High Court in Griffiths v Kerkemeyer[27]. This type of damage has been identified as a separate and distinct head of damage often referred to as loss of housekeeping capacity[28].
[27] (1977-1978) 138 CLR 161
[28] Sullivan v Gordon (1998-1999) 47 NSWLR 319. See also Carter v Anderson 160 DLR (4^th) 464. Kroeker v Jansen (1995) 123 DLR (4^th) 652 approved the approach that the loss of housekeeping capacity is a pecuniary loss, even if services are replaced by someone else in the family.
Ms Schmidt’s capacity to provide for other family members has been impaired. Such a loss has now been recognised as compensable in the United Kingdom, Canada, and several Australian States.
United Kingdom
In Daly v General Steam Navigation Co Ltd[29] the court approved the approach of a trial judge who treated a loss of housekeeping ability as a separate head of damage, rather than falling within the ambit of general damages. Bridge LJ approved the following remarks of the judge:
“I have considered first whether it is right to treat the plaintiff’s partial loss of housekeeping capacity as a separate head of damage, or whether it should be regarded only as one element in the loss of the amenities of life for which general damages have to be awarded.
…
Having considered the matter, I have reached the conclusion that this disability should be treated as a separate head of damage. When a person in paid employment suffers a total or partial loss of earnings by reason of disability, such loss is invariably treated as a separate head of damage, with separate assessments of past and future loss. Where the person concerned is a housewife, who is disabled wholly or partly from doing housekeeping in her own home, she does not suffer an actual loss of earnings… Nevertheless, she is just as much disabled from doing her unpaid job as an employed person is disabled from doing his paid one, and I think that she is, in principle, entitled to be compensated separately for he loss in a similar way.”
[29] [1980] 3 All ER 696 at 700
In Lowe v Guise[30] the plaintiff’s injury resulted in him being unable to care for his brother at the previous level. Rix LJ upheld the claim:
“As a matter of principle, I would have thought than an injured claimant who has been prevented by his injuries from working should be entitled to say that prima facie he has suffered loss. The most obvious form of that loss is of course loss of earnings or loss of earning capacity where the claimant has been employed or might be expected to be employed. It was common ground that, contrary to that prima facie situation, a claimant who chooses not to work, either through wealth or idleness, will in this respect have no claim, subject to any argument that he would have altered his way of life at some point in the future. But the appellant in the present case had worked, in caring for his brother, even though his financial compensation for doing so was limited to the invalid care allowance. What then has he lost, if he cannot work for more than 35 hours but still retains the whole of that allowance? Mr King says ‘nothing’, and submits that non-pecuniary loss, such as the self-fulfilment of useful work or the gratification of helping his disabled brother, has to be and is totally compensated by his award of general damages for pain, suffering and loss of amenity.
I would not dispute that last submission: but in my judgment an injured claimant who works albeit gratuitously for his family, a fortiori or at any rate within the nucleus of a family home, does suffer loss, the loss of being able to contribute the value of his service to the needs of his family. Just as the wife’s care of her injured husband, or the husband’s care of his injured wife, can be and is to be valued in pecuniary terms, even though gratuitously provided, and is to be compensated, through the injured person’s claim, as the provider’s loss: so it seems to me that the injured claimant’s loss of the ability to contribute his or her service to the needs of the family is a real loss suffered by the claimant, or transferred by the claimant by reason of his or her injuries on to another member of the family household who is in turn obliged to contribute his or her service.
…
[30] [2002] 3 All ER 454
His Lordship referred to the Pearson Report[31] a Royal Commission Report on civil liability and quoted the following relevant recommendations:
“It seems to us that a person who loses the capacity to render services to others suffers a real loss. The housewife who can no longer care for her family has not lost money, but she has lost money’s worth. If her services are replaced by hired help, the family as a whole may suffer substantial pecuniary loss. But we do not think her claim should be determined by the way in which her services are replaced. Even if they are partly replaced free of charge by a friend or relative, we consider that damages should be recoverable…
Again, we think that it is right to regard the loss of the capacity to render services gratuitously as primarily the plaintiff’s loss, rather than the loss of those who used to benefit from the services. We consider therefore that damages should be recoverable by the plaintiff in his own right.”
[31] Royal Commission on Civil Liability and Compensation for Personal Injury (1978)
Rix LJ concluded that the appellant’s loss of ability to care for his brother at the level he had prior to his injury was a loss of something of real value to appellant as well as to his brother. The loss was also one born by his mother as she too was required to accept the care and responsibilities that the appellant was now unable to perform.
Canada
In Canada, the classification of this area of compensation as a separate head of damage is well established[32].
[32] Hall v Miller (1989) 64 DLR (4th) 369; Fobel v Dean (1991) 83 DLR (4th) 385
In Kroeker v Jansen[33] the plaintiff suffered a diminution in her ability to perform household tasks. Both the trial and appeal courts held that this diminution gave rise to a compensable head of damage[34]:
“... on recent developments in the applicable law, and on the persuasive authorities available then and published since, the trial judge did not err in assessing damages for loss of future ability to perform household tasks. It was the means by which, together with the other heads of his award, he caused the appellants to compensate the respondent ‘for the full amount of [her] loss’.”
[33] Kroeker v Jansen (1995) 123 DLR (4^th) 652
[34] Kroeker v Jansen (1995) 123 DLR (4th) 652 at 659
In Carter v Anderson[35] Roscoe JA observed:
“Housekeeping capacity is ordinarily not an amenity. Its loss is not an intangible loss comparable to the appellant’s loss of ability to dance…[the plaintiff] did not go next door and ask to mop her neighbour’s kitchen floor because she enjoyed mopping. Managing one’s home and keeping it clean and organized is important and necessary for the health and safety of the family. The partial or total loss of that ability has economic value which should be recognized.”
Australia
[35] Carter v Anderson 160 DLR (4^th) 464 at 473
In Sharman v Evans[36] Murphy J observed:
“The expression ‘loss of earning capacity’ does not precisely describe this element of loss in its modern application. What is measured is the impairment or destruction of the capacity to engage in work that is economically valuable, whether it would be paid for in money or not. It is a loss of working capacity sometimes referred to as loss of economic capacity. There is a discernible factor of economic loss in loss of ability to do non-earning work of economic value. The allocation for loss of earning capacity should not be reduced because of Miss Evans’ former prospects of marriage. A woman who loses her capacity to make the usual contributions of a wife and mother in a household suffers great economic deprivation. Actions for loss of services correctly treat this as economic injury, but as a loss to the husband on the archaic view of the husband as master or owner of his wife. The economic loss is one to the wife or mother. It is her capacity to work, either in the household or outside, which is affected.”
[36] (1977) 138 CLR 563 and 598
In Cummings v Canberra Theatre Trust[37] the Federal Court was asked to consider whether an accident which prevented the plaintiff from undertaking heavy housework gave rise to the same kind of need as that which attracted compensation in Griffiths. The court could see no distinction. Brennan and Fisher JJ observed:
“Where, according to the practice of a family of which the plaintiff is a member, the plaintiff performs particular domestic chores and is disabled from continuing them by the conduct of a tortfeasor, that incapacity is a loss suffered by the plaintiff and …the cost of providing the services should be borne by the tortfeasor.”
[37] Unreported 18/6/80 at 14
The court considered that the principle did not extend to cases where household chores had to be rearranged but did include cases where the services of the injured party needed to be replaced. The Federal Court approved this approach in Hodges v Frost[38] where it was decided that compensation was to be awarded for the plaintiff’s own lost capacity, not the gratuitous services of her family and friends.
[38] (1984) 53 ALR 373 at 380 and 384
In Waters v Mussig[39] the Queensland Supreme Court followed Hodges and concluded that a single mother who had been living in her parent’s home could recover damages for her loss of capacity to perform gratuitous services, more specifically for the care of her children.
[39] [1986]1 Qd R 224

In Sturch v Willmott[40] the Queensland Supreme Court considered that the loss of capacity to care and provide support is a compensable head of damage. Davies JA commented[41]
“The damages in issue in this case are 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.
…
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.
[40] [1997] 2 Qd R 310
[41] Sturch v Willmott [1997] 2 Qd R 310 at 321
In Sullivan v Gordon[42] the New South Wales Court of Appeal held that compensation payable to an injured plaintiff extended to a lost or diminished capacity to care for others.
[42] (1998-1999) 47 NSWLR 319
Ms Schmidt’s inability to care for others is a disability or loss which can legitimately be said to have arisen from Mr Weinert’s negligence. It is a capacity that Ms Schmidt formerly had that has now been substantially reduced. In the ordinary course women have and exercise the capacity to care for children, their husbands and in many cases ageing parents. If this capacity is reduced then in principle there is no reason why this loss should not sound in damages. This is a compensable head of damage.
Ms Schmidt’s damages should allow for her reduced capacity to care for herself and her consequent need for support and assistance from others as well as her reduced capacity to care for others. The evidence only permits a broad allowance to be made.
The judge was in error in awarding $530,000.00 for future care and assistance. He failed to have regard to the extent to which Ms Schmidt could undertake activities if allowed to go at her own pace. His approach involved double compensation. An allowance of four hours per day for the remainder of Ms Schmidt’s life was not supported by the evidence. An allowance of $200,000.00 is an appropriate amount under this head of damage.
Pain and Suffering
The judge assessed Ms Schmidt’s damages for pain and suffering in accordance with the scale at a figure of 45. This rates her disabilities as being in the worst 25 per cent of cases. Ms Schmidt’s ongoing disabilities are severe. She has been left with double vision for the rest of her life. She suffers ongoing pain and is likely to do so in the future. Her condition is likely to deteriorate over time. The judge’s assessment was well within his discretion.
Conclusion
Ms Schmidt’s damages should be re-assessed as follows:
Non-economic loss  $69,750.00
Pre-trial economic loss  $68,183.51
Future economic loss  $620,000.00
Future medical expenses  $7,863.90
Loss of superannuation  $75,000.00
Past voluntary services  $103,000.00
Future loss of Ms Schmidt’s capacity to care  $200,000.00
for herself and to care for others
Special damages as agreed  $45,028.95
Travelling expenses   $2,500.00
$1,191,326.36
Ms Schmidt is entitled to recover 90 % of her damages. The award is reduced by 10 % on account of her responsibility for the collision. Damages of $1,072,193.72 should be awarded.
The appeal and cross appeal should both be allowed. Judgment should be entered for Ms Schmidt for $1,072,193.73 together with interest and costs. The parties will need to be heard on the issues of interest and costs.
LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT
1 (1998) 71 SASR 321.
2 [1997] 2 Qd R 310.
3   This is conveniently summarised in Luntz, Assessment of Damages for Personal Injury and Death, 4^th edition, 2002, para [4.1.13] headed “Housekeeping Services provided to Others”, page 259.
4 Ibid 343.
5    See s 33 of the Wrongs Act 1934.
6    See the comprehensive analysis of trends, and discussion of the legal, social and political influences underlying them, by Spigelman CJ in his paper Negligence: The last outpost of the Welfare State, delivered to the Sixth Colloquium of the Judicial Conference of Australia, Launceston, April 2002 and republished in the collected papers of the conference.
7 Judgment was entered in that sum together with interest and costs.
8 No police were called to give evidence. No plan of the scene was tendered to depict the position of the vehicles, the point of impact or other marks on the road.
9 1992-93) 177 CLR 472 at 479
10 1999) 73 ALJR 306 at 330
11     The tanker was said to weigh approximately 13 tonnes
12 (1971) 1 SASR 172 (n)
13     Unreported Judgment No 9362 17 September 1986
14On Mr Weinert’s estimate the combined approach speed was 150 kilometres per hour.
15     This section was repealed in 2001
16 (1985) 59 ALJR 492 at 493-494
17 (1985-1986) 160 CLR 301 at 311
18 (1979) 53 ALJR 591 at 595 - see also Gibbs J at 594
19     Medlin v SGIC (1994-1995) 182 CLR 1
20 (1962) 108 CLR 541
21     This complaint was the subject of the cross appeal.
22Graycar “Love’s Labour’s Cost The High Court Decision in Van Gervan v Fenton” (1993) 1 (2) Torts Law Journal 122 at 123
23Griffiths v Kerkemeyer (1977-78) 139 CLR 161, Van Gervan v Fenton (1991-1992) 175 CLR 327
24     Sullivan v Gordon (1998-1999) 47 NSWLR 319 at 322
25Harold Luntz, Assessment of Damages for Personal Injury and Death (4^th edition, 2002) 259-261
26Case law suggests that this was only an action open to a husband, not a wife. This type of action has been widely criticised and abolished in some jurisdictions.
27 (1977-1978) 138 CLR 161
28Sullivan v Gordon (1998-1999) 47 NSWLR 319. See also Carter v Anderson 160 DLR (4^th) 464. Kroeker v Jansen (1995) 123 DLR (4^th) 652 approved the approach that the loss of housekeeping capacity is a pecuniary loss, even if services are replaced by someone else in the family.
29 [1980] 3 All ER 696 at 700
30 [2002] 3 All ER 454
31Royal Commission on Civil Liability and Compensation for Personal Injury (1978)
32Hall v Miller (1989) 64 DLR (4th) 369; Fobel v Dean (1991) 83 DLR (4th) 385
33     Kroeker v Jansen (1995) 123 DLR (4^th) 652
34     Kroeker v Jansen (1995) 123 DLR (4th) 652 at 659
35     Carter v Anderson 160 DLR (4^th) 464 at 473
36 (1977) 138 CLR 563 and 598
37     Unreported 18/6/80 at 14
38 (1984) 53 ALR 373 at 380 and 384
39 [1986]1 Qd R 224
40 [1997] 2 Qd R 310
41     Sturch v Willmott [1997] 2 Qd R 310 at 321
42 (1998-1999) 47 NSWLR 319

Non-economic Loss	$69,750.00
Pre-trial economic Loss	$68,183.51
Future economic Loss	$620,000.00
Future Medical Expenses	$7,863.90
Loss of Superannuation	$12,000.00
Past Voluntary Services	$103,000.00
Expenses of Future Care and Assistance	$530,000.00
Special Damages as Agreed	$45,028.95
Travelling Expenses – Plaintiff’s Parents	$2,500.00
$1,458,326.36

[2002] SASC 340

24 October 2002