Blundell v Musgrave

[1956] HCA 66

High Court of Australia|1956-07-01|Before: Taylor JJ, Smith J

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Court

High Court of Australia

Decision date

1956-07-01

Before

Taylor JJ, Smith J

Source

Original judgment source is linked above.

Judgment (64 paragraphs)

[1]

High Court of Australia Dixon C.J. McTiernan, Williams, Webb, Fullagar and Taylor JJ. Blundell v Musgrave [1956] HCA 66

[2]

This appeal is from a decision of Smith J. with respect to an item of damages reserved for his consideration in an action for personal injuries otherwise tried by a jury. The action for damages was brought in respect of injuries caused to the plaintiff by the negligence of the defendant in driving a motor car. The plaintiff is a naval rating an engineering mechanic. While on leave on 19th June 1954 he was run down in Drummond Street, Carlton, by a motor car driven by the defendant. He sustained injuries which included a fracture of the tibia and fibula of his left leg. At the trial his claim for general damages was submitted to the jury but by the agreement of the parties the special damages claimed, which consisted of a single item, were reserved for the determination of the judge. It was a claim in respect of a sum of £594 8s. 8d., covering hospital and ambulance expenses. The jury found a verdict for the plaintiff and assessed the damages at a sum of £1,000. They found, however, that the plaintiff himself was partly at fault and reduced the award of damages by one third. The sum of £594 8s. 8d. was an amount in which, according to the plaintiff's case, he was liable to the Navy Department of the Commonwealth for hospital treatment and ambulance services. The question whether he was so liable was considered to depend on matter of law and therefore to be for the decision of the learned judge. After the plaintiff was injured he was taken to St. Vincent's Hospital but on the following day he was conveyed to the Flinders Naval Depot. He was placed in the Flinders Naval Hospital, where he remained for a period of one hundred and seventy-three days from 20th June 1954. He was again in that hospital for a period of twelve days from 10th December 1954 and for a period of fourteen days from 2nd February 1955. At one period he was conveyed by naval ambulance from the Flinders Naval Hospital to a hospital in Melbourne. The amount of £594 consists of charges for the periods in hospital and for the services of the Naval ambulance. The question is whether the charges should be included in the damages recoverable from the defendant. Smith J. decided that they did form an item of special damage which the plaintiff was entitled to recover from the defendant. From that decision the defendant now appeals by special leave. The correctness of the conclusion depends on the question whether they were charges which as between himself and the Navy Department the plaintiff must bear. There is no doubt that, if he must bear them, it is an expenditure on his part occasioned by the injuries which he received.

[6]

It may be safely stated as a general proposition of law that, before a plaintiff can recover in an action of negligence for personal injuries an item of damages consisting of expenses which he has not yet paid, it must appear that it is an expenditure which he must meet so that at the time the action is brought, though he has not paid it, he is in truth worse off by that amount. Generally speaking the question whether he must meet the expense is to be decided as a matter depending upon his legal liability to pay it. Indeed, it seems to have been taken for granted by Lord Ellenborough C.J. in Dixon v. Bell [1] that legal liability was the only criterion. For in that case he directed the jury that inasmuch as a physician could not enforce payment of his fees by action against his patient, a plaintiff who had been injured by the negligence of the defendant could not recover as special damages the fees of a physician who had treated him unless and until he had actually paid the fees. It may be that his Lordship went too far and that, where the situation of the plaintiff is such that as a matter of moral and social obligation he is bound to bear an expense which he could only escape at the cost of his reputation for honest dealing, that is enough. But, however this may be, the basis on which a plaintiff recovers expenses as special damages is that he will have to pay them whether he obtains the amount from the defendant as damages or not. The question here must therefore be whether the plaintiff really stands in a situation in which he must pay the expenses which apparently now stand debited to his pay account whether he recovers from the defendant or not. For it cannot be enough to entitle a plaintiff to recover from a defendant in respect of money still to be paid that the plaintiff is liable to pay it if and only if he recovers a corresponding amount from the defendant. His liability or the necessity of his meeting the expenditure must be independent of his recovery from the defendant. But it is on the plaintiff that the burden rested of showing that, subject to no such condition, it had become incumbent upon him to bear the expenditure in question. An accountant from the Navy Office was called as a witness with a view of proving this to be so. But speaking with reference to the document already mentioned he said: "What that means is that the amount of the medical expenses are to be placed in the debit claim (? column) of his ledger. He has to be charged with that but at the same time in view of the largeness of the amount it is obvious that he cannot pay it, and the Naval Board directs that deduction is not to be made from his pay until such time as he recovers the amount of the medical expenses from the other party." No doubt the case is a difficult one, but it seems in the end to depend upon the question whether the Naval Board took a definitive decision under reg. 118 (7) to charge the pay account of the plaintiff so that he fell under the necessity of paying the amount in any event. In the absence of direct and precise evidence of what the Naval Board decided it is necessary to fall back upon the document of 25th July 1955 of the Flinders Naval Depot. From the bare reading of that document it would appear that the plaintiff was not placed under actual necessity of paying or bearing the hospital and ambulance charges unless he recovered from the defendant in respect of the amount. But in addition the evidence of the accountant shows that this is how the decision had been understood administratively. It seems very unlikely that the decision meant that in any event the naval rating was to pay.

[36]

The Naval Defence Act provides that the Governor-General may make regulations not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for securing the discipline and good government of the Naval Forces, or for carrying out or giving effect to the Act, and, in particular, prescribing matters for or in relation to a number of subjects including the good government of Naval establishments. By s. 7 the Naval Board is constituted as a board of administration for the Naval Forces and it is to have such powers as are prescribed. By s. 31 the Permanent Naval Forces are liable to continuous naval service and are at all times liable to be employed on naval service. By s. 36, the Naval Discipline Act and the Naval Discipline (Dominion Naval Forces) Act 1911 and the King's Regulations and Admiralty Instructions for the time being in force in relation to the King's Naval Forces shall, subject to the Act and to any modifications and adaptations prescribed by the regulations, apply to the naval forces. It is unnecessary to refer in detail to the provisions of these enactments, regulations and instructions beyond saying that the Queen's Regulations, as might be expected, make comprehensive provision with respect to medical and hospital treatment for members of the forces. It is sufficient to say that the general regulation-making power, subject to any provision of the Act, extends to the prescription of conditions regulating the service of members of the naval forces, whilst the provisions of s. 36 are sufficiently wide to enable regulations to be made, at least, for the purpose of adapting the provisions of the Queen's Regulations to local conditions. This being so there is no reason why the regulation-making power should not be taken to extend to authorising the making of regulations providing free hospital and medical treatment for members of the Naval Forces either absolutely or upon conditions. Accordingly, there is no reason why sub-reg. (7) should be regarded as invalid. It is merely a qualification of a right given to members to receive free medical treatment and merely provides that this benefit may be withheld by the Naval Board when, in the exercise of its discretion, it considers that the circumstances are such that the cost should not be borne by the Department of the Navy.

[37]

Regulation 118 (7) confers on the Naval Board a discretion to disallow free medical attendance or make a charge for such attendance in circumstances where they consider the cost should not be borne by the Department. The sub-regulation commits the exercise of the discretion to the Board and to no one else. It is for the board to decide what are the circumstances in which they will disallow the free medical attendance or make a charge for such attendance. The discretion must, like every other discretion, be exercised bona fide for the purpose for which it is conferred. But here the very purpose of the sub-regulation is to authorise the board to consider whether the circumstances are such that the cost should not be borne by the department. The sub-regulation authorises the board to act under it whenever they consider circumstances are such as to justify them in calling upon a member of the Permanent Naval Forces to pay for his medical attention personally instead of these expenses being borne by the department. Some misconduct on the part of a member causing an illness or injury which gave rise to the expenses could be a material circumstance but there are many other kinds of circumstances on which the board could rely. Any circumstance which could be reasonably relevant to the honest exercise of the discretion would be sufficient. It is not for the Court to attempt to prescribe in advance what circumstances would and what circumstances would not be relevant. Suffice it to say that the fact that the expenses arose from an injury to a member caused by the negligence of some person which gave that member a right to sue that person for damages could certainly be reasonably regarded by the board as a circumstance why the member should be required to bear the expenses himself. If a member could recover these expenses as damages from a tort-feasor, there is every reason why the board should consider that such expenses should be charged against the member rather than be defrayed out of the public purse. If authorities are needed relating to the extent to which the Court will define the bounds of a discretion or prescribe the manner of its exercise there are several collected in the judgment of Williams J. in Hall v. Braybrook [1] . In two of the cases there mentioned the repository of the discretion was authorised to exercise it in all the circumstances of the case and these words were held to confer a very wide discretion. In R. v. Mills [2] the question was whether the justices of the county into which an apprentice was to be bound had a general discretion to consider the propriety of the binding or whether their discretion was confined to considering the fitness respectively of the master and the apprentice. Lord Tenterden C.J. said: "here they have a general discretion, after enquiring into all the circumstances of the case" [3] . A circumstance that the justices were held to be entitled to take into account so as to afford to the parish of Wivenhoe that protection which they considered themselves bound to give was that the parish ought not to be liable to have paupers from a distance settled on it. If the board was entitled, as we think it was, to disallow the free medical attendance or make a charge for such attendance because of the circumstance that the respondent could sue the appellant in tort for damages, the respondent, on such disallowance and upon being charged, as he was, for such attendance, became legally liable to pay the board for his medical attendance and he therefore became entitled to recover these expenses from the appellant as part of his damages. The fact that, if he had failed in the action, the board would probably not have pursued its claim, supplies, as has been said, no reason why the appellant should escape this liability.

[45]

The plaintiff appears to have been taken immediately after the accident to St. Vincent's Hospital in Melbourne, and two days later (i.e. on 20th June 1954) to the Naval Hospital at Flinders. From this point onwards the evidence is not very satisfactory. It would appear that a ledger account is kept at the Navy Office in Melbourne for each member of the Naval Forces, in which his pay and allowances are credited and amounts charged against him are debited. There is in evidence what purports to be an instruction from the Commanding Officer at Flinders Naval Depot to the officer in charge of the ledgers. This document is headed "Recruit Stoker J. A. Musgrave O.N. 50229: Medical Expenses". It then proceeds: "In accordance with instructions issued by the Naval Board, Medical expenses as indicated hereunder, have been disallowed by the Naval Board in accordance with N.F.R. & I Art. 186 (11) are to be charged against the pay account of the above-named rating. Pending the result of legal proceedings which have been instituted, action is NOT to be taken to recover this charge from his pay account. In the event of rating being drafted an appropriate notation is to be made on his transfer list." Then follow particulars showing how the amount of £594 8s. 8d. is made up. At the foot appears the following: - "The amount of £594 8s. 8d. has been charged against the pay account of the above-named rating at List 15 No. M728 in ledger of H.M.A.S. Cerebus (sic) for quarter ending 30 Sep. '55." Then come what purport to be the initials of two ledger-keepers, the date 27.7.55. and the signature "E. Robins, Commissioned Writer Officer". The whole is on a roneographed form with the particulars filled in. An accountant in the Department of the Navy gave evidence that the decision of the Naval Board to "disallow" the "expenses" was made on 19th August 1954, and was communicated to the commanding officer at Flinders Naval Depot by letter dated 20th August 1954. Neither this letter nor any minute or record of the resolution or decision of the Naval Board was put in evidence. Nor does it appear that the decision of the Naval Board was ever communicated to the plaintiff, though it does appear that he became aware some time later that the sum of £594 8s. 8d. had been debited in his pay account in respect of treatment for his injuries. The writ in the plaintiff's action was issued on 15th December 1954. The case has proceeded throughout on the assumption that the "decision" of the Naval Board is correctly stated in the document of 25th July 1955, and that it was, at some stage before the action came on for trial, communicated to the plaintiff.

[53]

I would make, with respect, one comment on Allen v. Waters & Co. [1] , which is equally applicable to Dennis's Case [2] . The actual form of the judgment does not appear from the report in either case. But in Allen v. Waters & Co. [1] Goddard J. said: - "Any sum which is now recovered by the husband will be held by him for the hospital and will have to be paid by him to the hospital" [3] . The Master of the Rolls said: - " he can recover it solely with the liability imposed on him of handing over the money to the hospital" [4] . And in Dennis's Case [2] , Denning J., after saying that the plaintiff should recover the amount of wages lost, added: "but subject to the direction that the amount paid to the plaintiff by the Ministry of Pensions and the London County Council" (his employer) "shall be paid to those bodies out of the sums recovered" [5] . I am unable to see any justification for the imposition of a condition or the giving of a direction of this kind in a judgment for damages at common law. In an action of tort a plaintiff is entitled to have his damages assessed according to law, and to have judgment for the damages assessed ex debito justitiae. It is not really within the jurisdiction of the court to exact an undertaking as a condition of giving such a judgment, or to give a direction to the plaintiff as to what he shall do with the amount of his judgment. What he does with his money is no concern of the Court. Five years after Allen v. Waters & Co. [1] , in Liffen v. Watson [6] , Goddard J. himself, having become Goddard L.J., said: - "What she does with the compensation when she receives it is a matter for her and nobody else" [7] . This seems to me to be clearly right. In an action for damages for personal injuries the court is concerned only with the interests of the plaintiff. It is in no way concerned with the interests of his creditors - still less with the interests of someone who may be thought to have a moral claim on him. As Harvey C.J. (speaking for the Appellate Division of the Supreme Court of Alberta) said in Greenaway v. Canadian Pacific Railway Co. [8] : "unless the expense is one which she (the plaintiff) actually makes as a result of the accident, the defendant should not be called on to pay for it for the benefit of someone other than the injured person" [9] .