Carol Ann Worbs v Bluescope Steel [2005] NSWCA 54 | Case summary

Domestic Services 8. Consistently with the evidence of Mr John Partridge and Dr Marantos I date this claim from 1 July 2003. I allow two hours per day at $26.50 per hour, that is $371 per week. From 1 July 2003 until 6 April 2004, 40 weeks, less three weeks of hospitalisation equals 37 weeks, total $13,727. Personal Care 9. There is little difference between the plaintiff's schedule of cost at $17,881.90 and the defendant's schedule at $15,957. I allow $17,000. Interest on Griffiths v Kerkemeyer 10. $30,720 x 4.5% x 10 months = $1,152.25 $30,727 x 9% x 14 months = $3,226.30 Domestic Care And Services Provided To Others 11. This head of damages is the only really contentious matter that concerns me. The plaintiff claims a sum of $182,902 in respect of the commercial cost of replacing the domestic services formerly provided by Mrs Partridge to her able-bodied husband and adult son Malcolm, from the date she was incapacitated by her illness until the date of her husband's death, predicted by the life tables as 19 April 2013. 12. In Sullivan v Gordon (1997) 47 NSWLR 319 the Court of Appeal, overruling Burnicle v Cutelli (1982) 2 NSWLR 26, held that the accident-caused need of a disabled plaintiff should not be confined to self care because "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" (Mason P at 322). Sullivan v Gordon was applied in Franklins Ltd v Burns [2005] NSWCA 54 so as to allow a claim in respect of domestic assistance the plaintiff could no longer provide for her able-bodied husband and 23 year old son. 13. The decision in Sullivan v Gordon constituted a novel development in the law, the ambit of which is not yet clear. As Mason P asked rhetorically in his judgment; "What is it that is really compensated? And what are the limits of recovery?" Guidance In Principle Identification of the Loss 14. In Teubner v Humble (1962-1963) 108 CLR 491 at 505 Windeyer J said this: Broadly speaking there are, it seems to me, three ways in which a personal injury can give rise to damage: First, it may destroy or diminish permanently or for a time an existing capacity, mental or physical; Secondly, it may create needs that would not otherwise exist; Thirdly, it may produce physical pain and suffering. 15. His Honour then pointed out that in the first category the loss of a capacity to earn was up to a point calculable by conventional means and "the sum that might have been earned by the exercise of a faculty or skill then becomes the measure of the economic value to the individual of the faculty or skill in respect of which he has been damaged". 16. His Honour went on: The destruction or diminution of a faculty has another, and non economic, result because of the deprivation of the ability to participate in normal activities and thus to enjoy life to the full and to take advantage of the opportunities that otherwise it might offer. This element is commonly and conveniently (but not, I think, very happily) called a 'loss of amenities.' It results from the destruction or impairment of a faculty, just as does 'loss of wages'. But a man's labour and skill have a market value. He can sell them. So that compensation for loss of capacity to earn money is susceptible of pecuniary assessment, although it is not precisely determinable because of the uncertainties of the future. But a man cannot sell his capacity for enjoyment. It has no calculable monetary value. The destruction of the one is thus not, I think, to be compensated on the same principles as the destruction of the other. . . . Passing from considerations arising from faculties or capacities destroyed or diminished to those arising from specific needs created: in most cases the most obvious of such needs are the cost of past and future medical and nursing attention, and of special equipment, crutches, a wheelchair and such like, but the list is not closed. Any requirement which arises as a consequence, and not too remote consequence of the injury, can I think be considered. 17. Because a plaintiff may not profit from his injury, he may recover in respect of the loss of an earning capacity only insofar as the loss of that capacity is or may be productive of financial loss (Graham v Baker (1961) 106 CLR 340). For the same reason, a plaintiff who in consequence of injury developed a need for services was generally permitted to recover special damages only insofar as the satisfaction of that need was productive of financial loss (Blundell v Musgrave (1956) 96 CLR 73). 18. Donnelly v Joyce (1973) 3 All ER 475 recognized that where a defendant's tort created a need for nursing services the plaintiff was entitled to recover from the defendant an amount representing the proper and reasonable cost of services necessary to satisfy those needs even if the services are or were supplied gratuitously by a third party. The loss was there identified as the creation of the plaintiff's need, not his liability to pay for its satisfaction. Further, for reasons of policy, notwithstanding that the plaintiff may have benefited from gratuitous subvention and suffered no financial loss, the Court held that the principle that a plaintiff could recover special damages only if he was subject to a legal liability to pay another was not engaged. 19. In Griffiths v Kerkemeyer (1977-1978) 139 CLR 161 the High Court of Australia adopted Donnelly v Joyce, both Gibbs J and Stephen J expressing their reasons consistently with the language of the Court in Donnelly v Joyce in terms of the plaintiff's needs. Mason J, however, expressed the principle in these terms: ... the old view based upon the proposition that a plaintiff is not entitled to recover from the defendant the services provided to him unless he can show that he is under a legal liability to pay for them is no longer acceptable. That view proceeded upon the footing that the relevant loss was the legal liability to pay for the services. It is now recognised that the true loss is the loss of capacity which occasioned the need for the service. 20. Although this formulation has been repeated in subsequent authority, Donnelly v Joyce did not recognise the loss as the plaintiff's loss of his capacity to care for himself. The plaintiff in that case was a six year old child in need of daily transport to hospital and skilled nursing care for which his mother received special instruction. The plaintiff before his injuries did not possess the capacity to attend to these needs were he to become injured. 21. The distinction between creation of a need and the loss of capacity is important. Although both are capable in some cases of pecuniary assessment by conventional means, public policy concerning the effect of third party subventions may differ in each case. The Effect of Third Party Subventions 22. Both Donnelly v Joyce and Griffiths v Kerkemeyer proceeded upon the basis that the nature of the loss should be first identified with precision before determining whether damages may be recovered despite third party subventions. (See Gibbs J at 167, Stephen J at 175, McGaw LJ 481). The cases constitute authority for the proposition that where the defendant's tort has created a need for services to be provided to a plaintiff, no gratuitous subvention by a third party may reduce the tortfeasor's liability to pay to the plaintiff the money sum reasonably necessary to satisfy the need. 23. Stephen J in Griffiths v Kerkemeyer said at 175: The principle in Donnelly v Joyce readily enables an injured plaintiff to recover damages for his accident caused needs met by third party subventions in those very cases most calling for it ... in such cases the courts will clearly not treat the gratuitous subventions as properly to be debited against the plaintiff. It is just such a case with which this appeal is concerned. No hard and fast rule can or should be laid down as applicable to all that great variety of other types of subventions which may come before the courts. 24. Gibbs J at 168 cited as appropriate the words of Lord Reid in Parry v Cleaver [1970] AC 14: It would be revolting to the ordinary man's sense of justice and therefore contrary to public policy that the sufferer should have his damages reduced so that he would gain nothing from the benevolence of his friends or relations or of the public at large and that the only gainer would be the wrongdoer. 25. Both Donnelly v Joyce and Griffiths v Kerkemeyer considered the effect of subventions in which the categorisation of the loss as a need was a necessary but preliminary exercise. I believe it obvious that in cases concerning the recoverability of damages for loss of capacity, the policy concerning third party subventions may be distinctly different, particularly when a third party, formerly the beneficiary of services provided by the plaintiff, is the gratuitous provider of those services to himself. It may not revolt a community sense of justice that able-bodied persons with no other demands upon their time attend to their own domestic chores. 26. Mahoney JA in Burnicle v Cutelli (1982) 2 NSWLR 26 at 36 recognized a distinction between those policies appropriate to subventions which operate in cases concerning compensation for a plaintiff's lost capacity, and those which concern the satisfaction of his/her needs. His Honour there said: In considering this submission, a distinction must be made. A plaintiff who, because of a defendant's negligence, cannot do what she could before, is entitled to have that fact taken into account in the assessment of her damages. The familiar case is that in which the plaintiff can no longer earn wages. In such a case the effect upon her economic capacity is taken into account. It is the loss of capacity and not the loss of wages for which the damages are given: Fitch v Hyde-Cates (1982) 56 ALJR 270 at p 276; although no doubt the amount of the wages apt to be lost will bear upon the amount of such damages. Upon this basis, the present plaintiff is entitled to have taken into account the fact that she can no longer provide relevant services. Whether the basic theory is that damages for that loss are also to be awarded as for the loss of a capacity as such or for the loss of the satisfactions apt to be derived from doing what formerly she did, it is not necessary to determine. The court is to take into account, in assessing the plaintiff's damages, that she can no longer provide such services and the damages are to compensate her for the loss of that capacity and for the satisfactions which she would have derived from the exercise of it. In calculating the plaintiff's damages in the present case, I have taken that into account. It is, in my opinion, included in the general damages awarded to her. But that is not what is here in question. The plaintiff seeks to have her damages calculated by reference to the market or other cost of providing the services which, by the exercise of her lost capacity, she would have provided to her family. I do not think that such a claim falls within the Griffiths v Kerkemeyer principle. In Kovac v Kovac [1984] 1 NSWLR 656, I stated my views as to the basis of the Griffiths v Kerkemeyer principle and I do not repeat the detail of them. In my opinion, damages to be awarded to a plaintiff injured by negligence remain compensatory, ie, they are to be awarded for loss actually (whether immediately or prospectively) suffered by the plaintiff. The Griffiths v Kerkemeyer principle is, in the sense and to the extent discussed, an exception to the traditional basis for award of damages. It proceeds on the basis that the injury has established in the plaintiff a need for services. The actual detriment suffered by the plaintiff as the result of that injury will, in fact, be less than it otherwise would have been because the services necessary to satisfy that need have been supplied gratuitously by a third party. It requires that in assessing the plaintiff's damages, the fact that the services were rendered be accepted but that the fact that they were rendered gratuitously be ignored. This it does by reason of the public policy to which the court referred in Griffiths v Kerkemeyer. … I do not think that the public policy on which Griffith v Kerkemeyer principle is based require that a plaintiff be compensated because others have lost the benefit of the services she would have provided to them ... I am conscious that it is the function of this court to apply the principles established by Griffiths v Kerkemeyer but to accede to the plaintiff's present submission would in my opinion, be not to apply it but significantly to extend it. (emphasis added) 27. The essential point made by the court in Sullivan v Gordon when overruling Burnicle v Cutelli is that, in some cases, a loss of capacity to provide services to a plaintiff's family may constitute an accident-caused need. 28. The Queensland Court of Appeal in Sturch v Willmott (1997) 2 Qd R 3 also recognized that considerations different to those obtaining in Griffiths v Kerkemeyer may apply when a claim is made in respect of a lost capacity to care for others. Both Macrossan CJ and Davies JA there accepted that a claim by a mother for damages in respect of the cost of replacing her services to infant children was a claim in respect of lost capacity not falling within the Griffiths v Kerkemeyer principle. Each allowed the claim by analogy to Griffiths v Kerkemeyer. Macrossan CJ upon the basis that: The common element between the two factual categories is the disablement of a plaintiff and the justice of arranging assessments so that wrongdoers do not profit through having their damages reduced by the gratuitous efforts of care providers which are not intended to achieve that result. .... for myself I would regard the present decision as applying to services which apart from the accident would have been provided by the plaintiff to members of the plaintiff's immediate or extended household. 29. His Honour did, however, express the following caution: Unlike the usual Griffiths v Kerkemeyer awards in respect of services provided to an injured plaintiff, there will be particular difficulty in confining the ambit of erstwhile recipients deprived of the injured plaintiff's gratuitous assistance as well as those he merely intended to provide for. If, by what is essentially a creative extension to established heads of damages in personal injury case, or differently viewed, by an award having some broad analogy with Griffiths v Kerkemeyer assessments an assessment is allowed in cases like the present, then some new limiting principle might need to be applied to restrict the scope of such assessments. ... perhaps the element of necessity in the form referred to by Gibbs J in Griffiths v Kerkemeyer at p 168 [later disapproved by the High Court in Van Gervan v Fenton (1991-1992) 175 CLR 327] can be made to perform the function of limiting the ambit of the defendant's liability to compensate. The Relevance of Actions under Lord Campbell's Act for Loss of Services 30. Where a claim is made in respect of the cost of replacing services formerly provided by an incapacitated plaintiff, a different result ought not follow if the action is brought personally by a living plaintiff rather than by the former beneficiaries of his/her services pursuant to a Lord Campbell's action after death if the death results from the injury. 31. In Nguyen v Nguyen (1989-1990) 169 CLR 245 the High Court held that compensation may be recovered in a claim under Lord Campbell's Act for lost domestic services which are not replaced at a pecuniary cost. Although such a claim is of a different nature to a Griffiths v Kerkemeyer claim, based as it is on a lost material benefit rather than on the creation of a need, damages in each case one would think should be equally, in the terms of Lord Campbell's Act, "proportional to the injury". 32. In relation to claims under Lord Campbell's Act, Deane J in Nguyen v Nguyen had this to say concerning proportionality: In a context where the ultimate burden of liability to pay damages under a Lord Campbell's action will ordinarily be cast upon the community generally through the direct and indirect cost of insurance premiums, that question must be answered by reference to current local standards and values. For example, it could scarcely be accepted as reasonable according to present-day standards and values in this country that the circumstances that it was probable that an able-bodied 20 year old man, who was unlikely to remarry or marry, would have received gratuitous and complete household care and services from a self supporting wife or mother for a period of many years should create a situation where domestic inaction was rewarded by what represented, for practical purposes, the objective value of the services of a full-time housekeeper for the foreseeable future. In a modern context, the circumstances in which it will be reasonable for substantial compensation to be awarded to an adult on the basis that he or she is to be compensated for the loss of the services of a full-time or part-time daily housekeeper, as distinct from occasional domestic help, will, in my view, ordinarily be limited to those cases in which some special need can be identified, such as infant children, infirmity or the unusual demands of a particular occupation. The most obvious of such cases of special need is a case where the surviving spouse is not only to look after his or her own needs but must assume sole responsibility for the care of infant children. 33. In the present case counsel for the plaintiff has conceded that $160,000 is an appropriate award of general damages to compensate the late Mrs Partridge for her loss of amenity, her physical pain, her grief, her mental torment, and her need for existence. In that circumstance a claim of $182,902 in respect of what is alleged to be her discrete need to provide domestic services to her husband and son, who stand in no need for these services does at face value appear disproportionate. The Rule in Sullivan v Gordon 34. Sullivan v Gordon again concerned the claim by an injured plaintiff for the cost of providing care to an infant child. In allowing the claim Beazley JA, with whom Mason P and Stein JA agreed said: For my part, I cannot see any logical basis for the distinction drawn in Burnicle v Cutell i between the measure of damages in a traditional Griffiths v Kerkemeyer claim and the measure of damages for the loss sustained by the inability to care for a dependent child. The decision does not, in my opinion, reflect the true nature of a claim of this type, based as it is on a loss of pre-accident capacity which gives rise to a specific post accident need: see Nguyen v Nguyen and Van Gervan v Fenton . 35. Both Donnelly v Joyce and Griffiths v Kerkemeyer were concerned to specifically identify the loss of the plaintiff as his/her need in order to address the further question of subvention. The judgments in each case express strong policy reasons why the subvention by gratuitous assistance of third parties in satisfying the plaintiff's needs in each particular case should not go in aid of a tortfeasor. 36. For reasons already expressed I find it difficult to categorize a claim of a Griffiths v Kerkemeyer type as based on a loss of pre-accident capacity. An injured newborn baby as plaintiff is entitled to the commercial value of nursing care gratuitously provided to satisfy an accident-caused need, although it had no pre-accident capacity to tend its own wounds. Similarly I find it difficult to categorize a claim of a Sullivan v Gordon type as being based on an accident-caused need. Any need of a mother or spouse to provide services to his/her family is inherent in the relationship and the circumstances of those to whom the services are provided. The defendant's tort does not create the need, but deprives the plaintiff of the capacity to satisfy it. 37. In overruling Burnicle v Cutelli the Court of Appeal in Sullivan v Gordon necessarily and specifically categorised the plaintiff's loss as a need created rather than as a capacity lost. This was a step necessary in order to apply the policy that gratuitous subventions which satisfy a plaintiff's accident-caused needs do not reduce a tortfeasor's liability to pay the commercial cost of satisfying those needs. Notwithstanding the analysis of Macrossan CJ in Sturch v Wilmott, who doubted such a categorisation was apt, I am bound to apply Sullivan v Gordon in its terms. 38. I believe Sullivan v Gordon to be authority for the proposition that if a plaintiff is deprived of the capacity to provide services to members of his/her immediate household, and in a particular case the desire of the plaintiff to provide these services constitutes a need, then no subvention by third parties may come in aid of the tortfeasor who is to pay the commercial cost of replacement services. 39. A condition precedent to the operation of the rule is that the tribunal of fact should first find that the plaintiff after his/her injury felt a specific need that the particular services be provided to others in the household. Most spouses provide domestic services to their husband, wife or children from motives of natural love and affection; some from fear, resignation or economic duress; others in acknowledgment of a reciprocal duty owed to breadwinners or of the special needs of infants or disabled persons. If, in the absence of evidence, need is to be inferred in every case where a plaintiff is disabled from providing services in a domestic household, Sullivan v Gordon claims must rest upon a stereotypical legal fiction. 40. In the absence of direct evidence, a plaintiff's need may be readily inferred where the services are provided to young children or disabled members of the household. It may be more difficult to infer the need where the services are provided to otherwise idle resident adult children who are quite capable of looking after themselves. Without inquiry into the circumstances or need of the recipient for the services, how may it be concluded that an understandable emotional wish constitutes a need? Rationally, one would think that the compensable need of a plaintiff to provide services to others would not exceed the need of the beneficiary to receive them. 41. In Kars v Kars (1996) 187 CLR 354 Toohey J, McHugh J, Gummow J and Kirby J restated the principle underlying Griffiths v Kerkemeyer as requiring the plaintiff to be compensated for his or her need "as established by the evidence." Implicit in the authorities including Sullivan v Gordon is the proposition that the need also be objectively reasonable. 42. If the plaintiff's loss is merely one of capacity to provide services to others in a domestic household which loss is not referable to her reasonable need I can see no reason why the Tribunal should not, if the claim is to sound in other than general damages, consider differently the effect of third party subventions for which "no hard and fast rule can or should be laid down" (per Stephen J in Griffiths v Kerkemeyer at 175). Decided Cases 43. Sturch v Willmott and Sullivan v Gordon concerned the easily recognized need of a mother to care for young children. In Cummings v Canberra Theatre Trust (Federal Court of Australia 18 June 1980 unreported) the services of an injured wife to her husband and children were replaced by engagement of a servant, the husband being engaged full-time in his practice as an architect. At p 14 of the judgment Brennan and Fisher JJ said: This is not a case where there was a rearrangement of domestic chores consequent upon an injury, and the events which occurred after the accident showed that it was reasonably necessary to provide the requisite services at cost. There was no suggestion made that the payment of the cost by the appellant's husband goes in relief of the tortfeasor. 44. Franklins v Burns allowed the claim of an injured plaintiff who was at the time of her trial in receipt of paid domestic assistance provided by the workers compensation insurer and whose husband had been compelled to reduce his working hours in order to assist. 45. I have been referred to no decided case in which a claim has been allowed in respect of gratuitous services provided to themselves by otherwise capable adult persons with no other demands upon their time and who formerly provided no economic support nor corresponding services to the injured plaintiff. The Facts 46. Mr and Mrs Partridge married on 10 February 1954 when she was 20 and he was 29. Mrs Partridge bore six children including Malcolm who was born on 25 April 1958 and aged 45 at the time his mother fell ill. 47. Malcolm worked as a bricklayer with Australian Iron and Steel until 1979 when he suffered some injury in respect of which he brought a compensation claim. He continued work with the steel works until 1986 when at the age of 28 he received an amount of compensation or damages. With the exception of a period as a salesman between 1990 and 1993 he has not worked since. Malcolm is a part owner of the house at 27 Shellharbour Road, Warilla where Mr and Mrs Partridge have lived since at least 1986. Malcolm still lives in the house, having initially occupied it with his wife and their child Crystal. Some time in the late 1990s Malcolm's wife left the home as did Crystal. In March 2003 Crystal and her boyfriend, with whom she was living by then, moved back into the house. 48. At the time Mrs Partridge fell ill the household consisted of herself, her husband John, her son Malcolm, her granddaughter Crystal and Crystal's boyfriend. Although Mrs Partridge said that her husband John had emphysema and diabetes there is no evidence that he is incapable of providing domestic services to himself. The evidence is to the contrary. Although Malcolm may have had a psychotic episode in the late 1990s, which explains the departure of his wife, there is no evidence that he is presently disabled. 49. Mr Partridge gave evidence that his wife spent perhaps 21 hours cooking each week and that he contributed perhaps 6 hours. Mr Partridge estimated his wife spent 3 to 4 hours per week in cleaning and he assisted for about 3 hours per week. He further estimated that Mrs Partridge spent 3 hours a week in the laundry and that his contribution was perhaps half an hour. They each spent half an hour to an hour in the garden each week and 3 hours shopping together. It appears that Malcolm, Crystal and the boyfriend contributed very little. In all, upon Mr Partridge's evidence, Mrs Partridge spent about 30 hours in providing services to the household and he about 10 hours. 50. I cannot accept that Mrs Partridge had any need to provide services for her adult son Malcolm, who is otherwise unemployed and idle. In evidence Malcolm said of his mother: She'd look after the house, it was part of the family thing was mum looked after us and the house. ... We went to work, we were the breadwinners, and mum looked after us. It is obvious on the evidence that Malcolm did not fulfil his side of such a bargain. 51. In the numerical calculus carefully drawn by counsel for the plaintiff, Mr Partridge benefited to the extent of one-sixth of the services provided by himself and Mrs Partridge to the household and contributed one quarter of the labour. 52. Without the assistance of Mrs Partridge it is reasonable to assume that Mr Partridge could satisfy his own needs with the 10 hours he formerly contributed to the household. His additional time spent shopping is no less for the want of his wife's assistance. The gardening will require a contribution of perhaps one hour per week in addition to his own time to replace Mrs Partridge's lost services. I see no reason why this additional work may not be done by himself or by Malcolm, both of whom hold a proprietary interest in the premises. 53. In all the circumstances I cannot find that Mrs Partridge possessed any need to perform services for her husband in addition to those services that he was capable of and did provide himself. After her incapacity he was capable of providing, and did provide, services for himself without disruption to his personal lifestyle, or cost to either his pocket or that of Mrs Partridge. I disallow the Sullivan v Gordon claim. 54. Damages are awarded then as follows: General damages $160,000.00 Interest on general damages $18,400.00 Loss of expectation of life $15,000.00 Out of pocket expenses $11,359.87 Funeral expenses $2,822.25 Griffiths v Kerkemeyer $30,727.00 Interest on Griffiths v Kerkemeyer $4,378.55 Total $242,687.67 Mr A McSpedden instructed by Turner Freeman appeared for the Plaintiff Mr TM Rowles instructed by Sparke Helmore appeared for the Defendant

Carol Ann Worbs v Bluescope Steel

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