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[1977] HCA 45
High Court of Australia
1977-07-01
Mason JJ, Gibbs J
Original judgment source is linked above.
High Court of Australia Gibbs, Stephen and Mason JJ. Griffiths v Kerkemeyer [1977] HCA 45
ORDER Appeal and cross-appeal dismissed with costs.
I have had the advantage of reading the reasons for judgment prepared by my brother Mason and am in agreement with him that the appeal and cross-appeal should be dismissed. I have no need to add anything to what he has said as to the particular circumstances of this case. But there are two matters of principle which I must discuss.
It was suggested in this case, as it has been in other cases recently, that it was wrong for the learned trial judge to allocate specific amounts to various heads of damage, instead of considering directly what global sum represented fair compensation for the injuries and their consequences. It seems to be necessary to repeat that the remarks of Barwick C.J. in Arthur Robinson (Grafton) Pty. Ltd. v. Carter [1] as to the manner in which a jury should approach the assessment of damages do not express the doctrine accepted by this Court as to the duty of a judge sitting without a jury to assess damages. It is never wrong and often convenient for a judge to examine separately the various heads of damage and to show the amount that he allocates, tentatively or finally, to each head. The judge will of course remember the need to avoid inflating the total figure by adding up overlapping items, but any error of that kind is more likely to be revealed if he itemizes his award than if he does not. My views on this subject have recently been more fully stated in Sharman v. Evans [2] in a joint judgment with my brother Stephen, and in Gamser v. Nominal Defendant [3] , and I mention the matter again only because misconception on the subject appears to persist.
The second question is whether the learned trial judge was justified in including in the award amounts in respect of the value of the services provided and to be provided for the respondent by his fiancee and by members of his family, when the respondent was not under any legal obligation to pay for those services.
It is common in cases where a plaintiff has been injured for some member of his family, or a devoted friend, to perform for him services that have been rendered necessary by his injuries. Sometimes the relative or friend provides care of a kind that would otherwise have to be provided in a hospital or nursing home, or by a paid nurse or team of nurses working in the plaintiff's home. Sometimes the service provided is of a domestic nature - for example the relative or friend does housework that the injured plaintiff is unable to do. In some cases the relative or friend suffers financial loss by providing the service - he may have to give up his employment or forego wages that would otherwise have been earned. In other cases the relative or friend may assume a heavy physical and emotional burden but may not suffer actual financial loss, either because he has no outside employment or because it is possible to perform the services in his spare time. These situations are of an everyday character but the law governing the right of the injured plaintiff to recover the cost or value of the services has been uncertain, and the decisions conflicting.
In England the uncertainty appears to have been to some extent resolved by a number of recent decisions and particularly by Donnelly v. Joyce [4] . In that case it was held by the Court of Appeal that a plaintiff is entitled to recover the fair and reasonable cost of nursing services provided by a relative or friend, and that the question whether the plaintiff is under a legal liability, or a moral obligation, to pay for the services is quite irrelevant. Of course the services must have been reasonably required by the plaintiff because of his physical condition attributable to the accident, and the plaintiff could not expect to be awarded more than it would have cost if the services had been provided by a qualified person on a commercial basis because he must mitigate his damage [5] . A similar conclusion has been reached by the Court of Appeal in a number of other cases: Cunningham v. Harrison [6] ; Davies v. Borough of Tenby [7] ; and Taylor v. Bristol Omibus Co. Ltd. [8] . The Full Court of South Australia in Beck v. Farrelly [9] has followed Donnelly v. Joyce [4] , although it was recognized that that case represented a departure from earlier law.
The principle on which the recent English cases were decided was stated most clearly in Donnelly v. Joyce. Megaw L.J. there said [10] :
We do not agree with the proposition, inherent in Mr. Hamilton's submission, that the plaintiff's claim, in circumstances such as the present, is properly to be regarded as being, to use his phrase, "in relation to someone else's loss", merely because someone else has provided to, or for the benefit of, the plaintiff - the injured person - the money, or the services to be valued as money, to provide for needs of the plaintiff directly caused by the defendant's wrong-doing. The loss is the plaintiff's loss. The question from what source the plaintiff's needs have been met, the question who has paid the money or given the services, the question whether or not the plaintiff is or is not under a legal or moral liability to repay, are, so far as the defendant and his liability are concerned, all irrelevant. The plaintiff's loss, to take this present case, is not the expenditure of money to buy the special boots or to pay for the nursing attention. His loss is the existence of the need for those special boots or for those nursing services, the value of which for purposes of damages - for the purpose of the ascertainment of the amount of his loss - is the proper and reasonable cost of supplying those needs. For reasons which I shall give, I respectfully consider that this statement of principle may require a little qualification. 1. [1974] Q.B., at pp. 461-462.
It is trite to say that in the assessment of damages for personal injuries a distinction may be drawn between damage which can be measured in money and that which cannot. On the one hand it is impossible to establish by any process of calculation or estimation what amount of money represents such matters as pain, disfigurement or loss of a limb. The plaintiff recovers damages for injury of that kind even if it does not result in any financial loss. On the other hand, where the injury has destroyed or diminished the plaintiff's earning capacity, or has created needs for services that would not otherwise have existed, it is possible (although often difficult) to calculate or estimate what pecuniary loss has already resulted or is likely to result from the damage. It has been held in this Court that where the plaintiff has suffered a diminution of earning capacity he recovers damages "not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss": Graham v. Baker [11] . Accordingly if the plaintiff is rendered incapable of working but his employer continues to pay his ordinary wages in full, the impairment of his earning capacity does not result in any loss. Difficulty has arisen, in some cases, in deciding which of the benefits that a plaintiff has received should be regarded as mitigating his loss, and which should not. However the discussion in cases such as National Insurance Co. of New Zealand Ltd. v. Espagne [12] and Parry v. Cleaver [13] would have been pointless if damages could have been recovered for impairment of earning capacity without any resulting pecuniary loss. Why then should a plaintiff recover damages because he now has a need for nursing services, if that need is not likely to be productive of financial loss? In Beck v. Farrelly [14] , Bray C.J. pointed out the difficulty of reconciling the principle laid down in Graham v. Baker [15] with Donnelly v. Joyce [16] . In my opinion it is not right to say that a plaintiff who suffers injuries that create a need for medical or hospital treatment, nursing assistance or pharmaceutical supplies thereby necessarily suffers a loss that calls for compensation by way of damages. (I am of course not intending to speak of damages for loss of amenities or pain and suffering.) In my opinion, in cases of this kind also, the plaintiff is entitled to damages only to the extent that the need thus created is or may be productive of financial loss. If, for example, the state will provide the necessary services free, the plaintiff will suffer no loss and can recover no damages. Indeed it was so held in England inCunningham v. Harrison [17] , a decision which in other respects supports Donnelly v. Joyce.
The decision of this Court in Blundell v. Musgrave [18] appears to me to make it impossible to accept all that was said in Donnelly v. Joyce [16] . In Blundell v. Musgrave a naval rating, injured by negligence, received medical treatment in a naval hospital. A charge was made against him in respect of that treatment and he claimed to recover the amount so charged from the negligent defendant. It was not suggested that the plaintiff was contractually liable to meet the charge, but in support of his claim reference was made to regs. 150A and 118 of the Naval Financial Regulations. Under reg 150A no legal liability on the part of the plaintiff to pay the charge could arise until after he had recovered or received damages from a third party, and for that reason the whole Court held that reg. 150A was irrelevant to the question whether the plaintiff was entitled to recover the charge from the tortfeasor [19] . Regulation 118 provided that members of the permanent naval forces should be granted free medical attendance but empowered the Naval Board to make a charge for such attendance where they considered that the cost should not be borne by the Department. The majority of the Court held that the charge had been lawfully imposed on the plaintiff and that it was of no consequence that the Board might forgive the whole or part of the charge in the event of the plaintiff not succeeding in the action. They concluded by saying that the plaintiff, on being charged, became legally liable to pay for his hospital attendance, and "therefore" became entitled to recover these expenses from the defendant [20] . Dixon C.J. and Fullagar J. dissented on the ground that the plaintiff was not legally liable to pay the charge. Dixon C.J. said [21] :
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 had 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 [21a] that legal liability was the only criterion 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. Fullagar J. said that it is, generally speaking, necessary for the plaintiff to prove that he has incurred a legal obligation to pay the fees before they can be recovered [22] . 1. (1956) 96 C.L.R. 73. 2. [1974] Q.B. 454. 3. (1956) 96 C.L.R., at p. 85. 4. (1956) 96 C.L.R., at p. 88. 5. (1956) 96 C.L.R., at p. 79. 6. (1816) 1 Stark 287, at p. 289 [171 E.R. 475, at p. 476]. 7. (1956) 96 C.L.R., at p. 92.
The statements of Dixon C.J. and Fullagar J. that as a general rule the plaintiff cannot recover an item of damages consisting of expenses which he has not yet paid unless he is legally liable to pay them did not represent a dissenting view; those judges enunciated more fully the principle which the majority accepted almost without question. It is implicit in the decision in Blundell v. Musgrave [23] that if the plaintiff's injuries created a need for hospital treatment, the loss which sounds in damages is not the need itself, but the cost of satisfying it. The decision is consistent with Graham v. Baker [24] but not entirely consistent with the reasoning in Donnelly v. Joyce [25] .
However Blundell v. Musgrave [23] was a case in which the hospital services supplied in satisfaction of the plaintiff's need were provided by a hospital conducted by the naval authorities and for practical purposes could be regarded as having been provided free of charge. We are not at present concerned with, and need not consider that aspect of the decision which concerned the fact that the plaintiff was contingently liable to pay for the hospital treatment - the contingency being that he recovered damages.
It would seem logical that the principle of Blundell v. Musgrave should be applied not only to cases where hospital or nursing services are available at no cost from some public or semi-public institution, but also where they are provided gratuitously by a relative or friend. When sitting in the Supreme Court of Queensland I considered myself bound to apply the principle to a case of the latter kind: Renner v. Orchard [26] . But it is I think now open to this Court to hold that the decision in Blundell v. Musgrave [23] should not be applied where services are voluntarily provided by relatives or friends. In the first place, we now have a body of English authorities which has departed from the view which was previously accepted. And there has already been a decision of this Court which conforms to the approach taken in England: Ferguson v. E. A. Watts Pty. Ltd. [28] . Equally important, the principle in Donnelly v. Joyce [29] , if confined to gratuitous services, is "in accord with popular conceptions of justice" to use the words of Bray C.J. in Beck v. Farrelly [30] . Some of the words used by Lord Reid in a different context in Parry v. Cleaver [31] also appear applicable to the kind of case now under discussion:
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. It would seem unjust to an ordinary person that damages under this head could only be recovered if the injured plaintiff had retained sufficient capacity, and shown sufficient foresight, to enter into a binding contract to pay for the services with which he was provided. And although, under the principle formerly accepted, the plaintiff might have lost his special damages if he was not liable to pay for the services provided to him, it would have been easy for him to correct the position for the future once he realized that his damages depended upon whether or not he bound himself to pay for the services. A rule having that effect placed a premium on astuteness. For all these reasons, we should, I think, accept that the conclusion reached in Donnelly v. Joyce [29] was correct. 1. [1967] Q.W.N. 3. 2. (1956) 96 C.L.R. 73. 3. (1974) 48 A.L.J.R. 402n. 4. [1974] Q.B. 454. 5. (1975) 13 S.A.S.R., at p. 21. 6. [1970] A.C., at p. 14. 7. [1974] Q.B. 454.
However in my opinion this Court should not abandon the principle that a plaintiff whose injuries have created a need for hospital or nursing services cannot recover damages in respect of that need (except of course for loss of amenities or pain and suffering) unless the satisfaction of the need is or may be productive of financial loss. However it should no longer be held that the fact that the services have been and will be provided gratuitously is conclusive of this question. The matter should, as it were, be viewed in two stages. First, is it reasonably necessary to provide the services, and would it be reasonably necessary to do so at a cost? If so, the fulfilment of the need is likely to be productive of financial loss. Next, is the character of the benefit which the plaintiff receives by the gratuitous provision of the services such that it ought to be brought into account in relief of the wrongdoer? If not, the damages are recoverable. In Donnelly v. Joyce the Court of Appeal [32] relied on the earlier decision in Liffen v. Watson [33] a case in which the plaintiff was held entitled to recover in respect of the loss of board and lodgings, notwithstanding that after the accident her father had provided her with free board and lodgings. In other words, the question there was whether the plaintiff "ought to be debited with the amount or value of a subvention of which" she had "had the benefit", to use the words of Fullagar J. in Blundell v. Musgrave [34] . It used to be thought that a case such as Donnelly v. Joyce [35] was of a different kind, and that the sole issue in such a case was whether the plaintiff was entitled, in the assessment of damages, "to be credited with the amount of an actual or prospective expenditure by him", to continue to quote Fullagar J. [34] . That view must now be revised.
It is unnecessary to consider all the implications of this change in approach. It should not create any difficulties so far as the provision of gratuitous services is concerned. Where necessary services have been provided gratuitously by a relative or friend, it should now, as a general rule, be held that the value of the services so provided should not reduce the damages payable to the plaintiff. Notwithstanding that Lord Reid, in the passage cited from Parry v. Cleaver [36] equated public with private benevolence, I consider that if the hospital, medical and nursing services provided by the state are such that the plaintiff has been and will be supplied with all the services that he reasonably requires at no charge to himself, the case will, as a general rule, be one in which the wrongdoer should have the benefit of that circumstance. There appear to me to be strong grounds of policy which distinguish services which the state makes available for all persons, or for all in a certain category, on the one hand, from services provided as a result of a sacrifice made by a relative or friend of the plaintiff, on the other hand. It is unnecessary to consider those cases such as Wilson v. McLeay [37] , where the question was whether expenditure incurred by relatives in visiting the injured plaintiff could be taken into consideration in assessing damages. Nor is it necessary for present purposes to consider the validity of the criticism made in Donnelly v. Joyce [38] , of the view expressed by Dixon C.J. in Blundell v. Musgrave [39] that a moral or social obligation to repay an expenditure may be relevant, although it may be mentioned that the decision in Roach v. Yates [40] , upon which the Court of Appeal relied in Donnelly v. Joyce, appears to have rested on the assumption that the plaintiff was under a moral obligation to pay for the nursing services he had received.
I agree that the appeal and the cross-appeal should be dismissed.
The facts and circumstances of this appeal appear from the reasons for judgment of my brother Mason, with whose conclusions as to what should be its outcome I agree.
One matter of quite general importance in the assessment of damages for personal injuries was argued in this appeal and it is to it that I will confine myself in this judgment. It concerns the case of a plaintiff whose accident caused need for nursing services has been or is to be satisfied by the supply of those services gratuitously by a third party, often his mother, wife, or other relative, in this case his fiancee.
The learned trial judge, Bright J., allowed a full recovery of damages in respect of such services, undiminished by the fact that the plaintiff, a quadriplegic, had been, and might continue for perhaps half of the remaining thirty years of his life to be, nursed and cared for by his fiancee, with some assistance from his relatives and with some paid help, all this without payment by the plaintiff and without his incurring any legal obligation to pay. His Honour's award of damages in respect of the plaintiff's need, past and future, for this nursing and care was computed at rates appropriate to those which the evidence showed would have been payable for care in a good nursing home.
The question is whether his Honour was correct in doing this or whether, on the contrary, a plaintiff's right to damages should be restricted to the amount of expense or legal liability actually incurred or to be incurred by him for services of this kind. The question is an important one. The perils of the road, combined with advances in medical knowledge and treatment, ensure that every year a number of road victims survive as helpless invalids, requiring constant attention during many years in the future. For some of them satisfactory care in home surroundings is both possible and adequate, indeed it may have distinct psychological advantages as compared with a life-time in hospital. But it necessarily entails devoted care on someone else's part, often a wife or woman relative who may have to abandon her ordinary employment to nurse the plaintiff and who will in any event find the task a demanding one.
In the past it has been customary to disregard the value of such voluntary services when assessing damages in such cases. The result has been to benefit defendants, their insurers and, ultimately, the community at large at the expense of those who, behaving "like an ordinary decent human being" (per Megaw L.J. in Watson v. Port of London Authority [41] ) have voluntarily undertaken the care of a loved one maimed on the roads; the instance of the wife in Arthur Robinson (Grafton) Pty. Ltd. v. Carter [42] provides a case in point.
In certain restricted circumstances the law has permitted recovery by the provider of such gratuitous services directly from the wrongdoer where the relationship of provider to recipient has been that of parent and infant child, husband and wife or master and servant. But in the absence of any satisfactory legal basis, in the broad generality of cases, for the recovery of damages from the wrongdoer by the provider of such gratuitous services, the law must either let the loss lie where it falls, upon the provider, or allow for recovery by the injured party, either ensuring or merely anticipating that he will suitably remunerate the provider from the proceeds so recovered.
In 1961 Taylor J., sitting in the original jurisdiction of this Court in Wilson v. McLeay [43] , broke new ground in this field. He was not concerned with the gratuitous provision of nursing care but with the case of the provision to the plaintiff, who was of full age, of the "reasonable attendance" of her parents, who at their own cost travelled from Queensland to visit her in hospital in Sydney and later so that she might be escorted back to her home in Queensland. The plaintiff had sought to recover, as special damages in her action against the defendant, the actual amount which her parents had paid as out-of-pocket expenses; his Honour in fact awarded a rather smaller amount as part of her general damages, no doubt in light of the expert medical evidence [44] . The plaintiff had, it should be noted, in the course of her evidence, offered to undertake to reimburse to her parents their expenses if an amount representing them were included in her damages.
His Honour's judgment is important in a number of respects: for its recognition of the plaintiff's entitlement, by way of general damages, to "some allowance for the reasonable attendance of her parents", regardless of who had borne the expense of that attendance, there being, he thought, a "necessity for some such expenditure"; for his method of quantifying that item of general damages, not "merely by taking the precise amount of the expenditure incurred" by the parents; for his Honour's rejection of the notion that an undertaking such as the plaintiff had given could be in any way relevant to a plaintiff's entitlement to such damages; finally for his rejection of the plaintiff's entitlement to recover the amount of these expenses as special damages.
Perhaps the most significant feature of his Honour's judgment is that he treated the situation as one in which he was concerned to compensate the plaintiff, not her parents; the damages which he awarded were not special damages representing reimbursement of expenses incurred, they could hardly be since the plaintiff to whom they were awarded had not incurred them. They were, rather, general damages awarded to her for some loss of her own, not that of her parents. That loss was concerned with the fact that "it was reasonably necessary that she should have some-one there with her then" [45] the plaintiff having need "in the alleviation of her condition that she should have the comfort and assistance of her parents" [46] , she having found herself, with serious injuries and permanent disability, in hospital, far from home.
His Honour rejected the solution offered by the then very recent decision of Paull J. who, in Schneider v. Eisovitch [47] , had awarded as special damages a similar item of expenditure incurred by third parties but had required of the plaintiff an undertaking to pay over the sum awarded to her to those who incurred the expenses. Paull J. had found precedents for the latter requirement: in Allen v. Waters & Co. [48] , Goddard J. had said, of a sum recovered by a plaintiff in respect of hospital expenses which his Lordship considered that the plaintiff was under no legal liability to pay, that the sum would be held by the plaintiff "for the hospital and will have to be paid by him to the hospital" [49] . Again in Dennis v. London Passenger Transport Board [50] Denning J. had allowed recovery of lost wages upon terms that the plaintiff undertake to pay to his employer so much of the damages so recovered as equalled a pension and sick pay which he had received during the relevant period from his employer.
In Wilson v. McLeay Taylor J. [51] described the extraction of any such an undertaking from the plaintiff as amounting to "a confession that a plaintiff has no right at all to recover such expenditure". Sitting as he was in first instance and delivering judgment only two days after the hearing began, he refrained from any elaborate legal analysis, but it is nevertheless clear that the basis of his award of damages was to compensate the plaintiff for a loss suffered by her, the loss being her accident-caused need for the presence of her parents.
By denying recovery, as special damages, of the actual amount of the parents' expenses and instead awarding general damages Taylor J. was able to avoid conflict with the statements of principle expressed by Dixon C.J. and Fullagar J. in Blundell v. Musgrave [52] . Their Honours had there said that to recover, as an item of special damages, an outgoing paid or incurred, the outgoing must have been paid by the plaintiff or, if only incurred, must have been incurred by him so as to involve him in legal liability (whether a strong moral obligation would suffice, Dixon C.J. left open). It will be necessary to say something more concerning Blundell v. Musgave; for the moment it is enough to note how Taylor J. dealt with the matter.
Wilson v. McLeay [53] was fruitful in a number of subsequent Australian decisions; Cutcheon v. Davis [54] and O'Connell v. Brisbane City Council [55] provide instances. But it was not until Megaw L.J., speaking on behalf of the Court of Appeal in Donnelly v. Joyce [56] , elaborated upon the principle involved in the decision of Taylor J. that its full reach became clear. Only then did the long disregarded authority of Roach v. Yates [57] receive recognition, the case of Liffen v. Watson [58] also being cited in support of the principle which Megaw L.J. enunciated.
That principle most clearly emerges when his Lordship comes to identify with precision the particular loss suffered by the plaintiff and which is to be compensated. The passage may be read in full at pp. 461-426, the critical point is his Lordship's affirmation that when a plaintiff, as a result of his accident-caused injuries, becomes in need of goods or services that need is itself a loss suffered by him, for which he may recover damages against the defendant. It is then, his Lordship said, irrelevant to his entitlement to those damages that the need has been satisfied by the gratuitous supply to him of the needed goods or services. The position is put very clearly by Scarman L.J. in Davies v. Borough of Tenby where his Lordship said [59] :
The defendants' wrong has created a need for the services. Nursing and attendance are services which can only be provided by an expenditure of effort or money, or both: an estimate must be made of the capital value of such effort and money, past and future, and compensation awarded accordingly. How or on what terms they are provided is not of critical importance: the extent to which they have been, are now, and are likely in the future to be needed is all important, and the court, looking at all the circumstances including the market price of such services, must put a fair value upon them, 1. [1974] 2 Lloyd's Rep. 469, at p. 479.
Donnelly v. Joyce [60] has been applied in a number of later cases; there are no less than three subsequent decisions of the Court of Appeal, Davies v. Borough of Tenby [61] , Hay v. Hughes [62] and Taylor v Bristol Omnibus Co. Ltd. [63] . In Australia, antedating Donnelly v. Joyce itself and citing Wilson v. McLeay [4] , is the judgment of Windeyer J. in Bresatz v. Przibilla [5] which accords recognition to the principle applied by Taylor J. and later elaborated in Donnelly v. Joyce; later occurs the unreported decision of three members of this Court in Ferguson v. E. A. Watts Pty. Ltd. [6] . A number of decisions of State Supreme Courts have applied Wilson v. McLeay [4] and, more recently, Donnelly v. Joyce; of particular interest are the carefully reasoned judgments of Bray C.J. and Mitchell J. in the Full Court of South Australia in Beck v. Farrelly [7] , the authority upon which Bright J. relied in the present case.
What the principle articulated by Megaw L.J. in Donnelly v. Joyce [60] has done for the pre-existing law is, I think, well illustrated by a perceptive passage in Professor Luntz's Assessment of Damages (1974). In par. 10.502 the learned author refers to the distinction drawn by Fullagar J. in Blundell v. Musgrave [8] , between expenditure with which a plaintiff seeks to be credited and subventions with which the defendant seeks to have the plaintiff debited. When relatives or friends come to an injured person's aid and nurse or otherwise gratuitously assist him and he subsequently seeks to recover damages from the defendant so that he may reimburse them, the problem falls, the author says, into Fullagar J.'s. first category, expenditure with which a plaintiff seeks to be credited, and the plaintiff in consequence receives scant consideration from the courts; whereas had it fallen within the second category the courts would have been very ready to reject the prospect of the benefit conferred by the charitable donor being diverted from victim to wrongdoer. Had the learned author had an opportunity of considering a full report of Donnelly v. Joyce [9] , which did not appear in the reports until after publication of his work, he might have been able to regard the problem quite differently; the plaintiff should in the light of that decision, be regarded as having suffered a compensable loss, represented by his accident-caused need for services, and the defendant's task would be the difficult one of persuading the court that in such a case, within Fullagar J.'s second category, the charitable subvention of services should be debited against the plaintiff, so as to reduce or extinguish this otherwise established entitlement of the plaintiff to damages.
In effect, the analysis made by Megaw L.J. in Donnelly v. Joyce [9] serves to disclose for the first time a loss suffered by the injured plaintiff whereas previously the loss appeared to be one suffered by the charitable provider yet nevertheless sought to be recovered by the plaintiff.
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. I refer to those deserving cases concerned with charitable subventions by friends or relatives who, to benefit the plaintiff, and with no thought of relieving the wrongdoer, gratuitously provide him with funds, services or goods. 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 of that great variety of other types of subventions which may come before the courts. For many of them what was said in Parry v. Cleaver [10] and, in Australia, by Windeyer J. in Paff v. Speed [11] and in greater detail in National Insurance Co. of New Zealand Ltd. v. Espagne [12] , per Dixon C.J. [13] and per Windeyer J. [14] will provide the answer. As Windeyer J. pointed out, in appropriate cases the intent of the provider will be determinative, so that, where the intent is that the injured person shall enjoy the benefits of the subvention in addition to whatever rights he may have against the wrongdoer, the value of the subvention will not go in diminution of damages to be awarded to the injured person. In relation both to this aspect and also to the more general of the two-stage approach, first identifying the loss as the plaintiff's accident-caused need and then examining the deductibility or otherwise of the third party's subvention, the article by Mr. Carr in Modern Law Review, vol 37, (1974), p. 341 provides a most helpful analysis.
Again, if theories of loss distribution be resorted to test the desirability of the principle in Donnelly v. Joyce, it is clear that the charitable friend or relative is a peculiarly inappropriate person to be saddled with any ultimate loss, being inherently unlikely to have any capacity to serve as an efficient loss distributor. Accordingly a result which allows the injured person to recover damages in respect of the provider's services, so that he may be in a position to reimburse the provider, is a desirable policy goal; the wrongdoer, likely to carry liability insurance, will prove a much better loss distributor - see generally Luntz, op. cit., pars. 4.111 and 8.105-8.107.
What may be thought of as a defect, of the law generally rather than of this particular principle, namely that instead of allowing recovery by the charitable provider of gratuitous services, he must instead rely upon the injured party to effect reimbursement out of the damages he recovers, is not, perhaps, entirely inappropriate. The provider's subvention, representing the charitable act of a friend or relative, is rewarded in kind by a payment voluntarily made by the injured person, who has been put in funds for that purpose rather than somewhat incongrously giving rise to a right of direct recovery from the wrongdoer. Admittedly this becomes less appropriate when what the provider gives is perhaps many years of care of an injured person, the provider acting out of a sense of duty and suffering great hardship in consequence. However in the present state of the law there seems to be little offering by way of alternative. In Cunningham v. Harrison [15] , Lord Denning expressed the view that a plaintiff husband would hold the damages awarded to him but attributable to the services rendered to him by his wife on trust to pay them over to her. No such view was stated in Donnelly v. Joyce and it may be that the observation by Megaw L.J. in that case [16] that the Court's conclusion "on the issue of principle, although not necessarily on matters mentioned obiter, is the same as that stated in Cunningham v. Harrison " [15] , was directed to this aspect. In Taylor v. Bristol Omnibus Co. Ltd. Lord Denning [17] , again made reference to how such damages, once recovered, should be dealt with but was less specific than he had been in Cunningham v. Harrison. Stamp L.J. concurred in the judgemnt of Orr L.J., who said nothing to suggest that the plaintiff would take the damages other than beneficially. No other members of the Court of Appeal have, I think, in the cases decided since Cunningham v. Harrison, said anything by way of adoption of the views of Lord Denning. I have already referred both to the rejection by Taylor J. in Wilson v. McLeay [18] of the imposition of restrictions upon what a plaintiff may do with damages which he recovers and to what Fullagar J. has said in this regard in Blundell v. Musgrave [19] . There is, I think, some difficulty in the concept of a trust in favour of a provider attaching to some perhaps wholly unquantified part of an award of damages and this will be the greater if the provider's services lie wholly or partly in the future. However, quite apart from difficulties of this sort, and from those additionally mentioned by Bray C.J. in Beck v. Farrelly [20] , the plaintiff should, I think, be regarded as beneficially entitled to the judgment he obtains without question of the imposition of any trust in respect of some part of his damages in favour of one who has rendered, or may in the future render, gratuitous services to him.
In some cases, by recourse to what Megaw L.J. has called anomalous or anachronistic rules (Donnelly v. Joyce [21] ), the relationship of the parties and the circumstances of the case may enable recovery directly by the provider in an action for loss of consortium (Toohey v. Hollier [22] ), or in an action per quod servitium amisit (per Windeyer J. in Commissioner for Railways (N.S.W.) v. Scott [23] and see generally the observations of Pape J. in Lloyd v. Lewis [24] ) or even, according to Fullagar J. both in Blundell v. Musgrave [25] and in Commissioner of Railways (N.S.W.) v. Scott [26] , wherever the provider is under a legal obligation to provide or pay for services to the injured person. A prospect of direct recovery by the provider of his economic loss might, by reliance upon some sufficient degree of proximity, also be found in the principle discussed in the judgments of Caltex Oil (Australia) Pty. Ltd. v. Decca Survey Australia Ltd. [27] . However, in the majority of cases it is the principle in Donnelly v. Joyce that appears most likely to provide a relatively satisfactory remedy where charitable subventions are in question. How a right of direct recovery by a provider, where it exists but has not been availed of at the time the injured person's action comes to trial, may affect the latter's right to damages for the loss represented by his accident-caused need may prove troublesome; clearly the wrongdoer should not be exposed to liability twice over, nor should the injured person recover damages if the services he receives are "paid for" by damages recovered by the provider from the wrongdoer. Perhaps the existing criterion for deductibility or otherwise of subventions, the intention of the provider, will require to have added to it a further factor: whether the provider has a right of direct recourse against the wrongdoer. Such a consideration would not be out of keeping in the context since the possession of the right might be regarded as overcoming any intention by the provider to confer a gratuitous benefit upon the injured person.
Two further observations concerning the operation of the principle in Donnelly v. Joyce [28] are necessary. The principle adopts, in some respects, quite explicitly what Ogus, Law of Damages (1973), p. 172, calls the conceptual approach to damages. It is concerned not with what outlays of money the plaintiff will in fact incur as a consequence of his injuries but with the objective monetary "value" of his loss - as to which see Ogus, op. cit., p. 176. It is for this reason open to objection in cases quite remote from the facts of the present case but to which Taylor J. referred in a passage from his judgment in Wilson v. McLeay [29] . His Honour said in that passage that "if at the trial it appeared that no expenditure for that purpose had, in fact, been incurred [by the provider] no allowance should be made". Sangster J. commented on this passage in Gillespie v. Steer [30] , but, with respect, appears to have there mistaken the identity of the loss which Taylor J. was concerned to compensate. Nevertheless the passage does occasion some difficulty; it seems to involve a departure from the principle that it is for the plaintiff's loss, represented by his need, that damages are to be awarded. Perhaps the answer lies in two considerations: first the practical and evidentiary one that the failure of the contemplated provider to in fact expend money on satisfying the plaintiff's need may itself cast doubt upon the existence of that need; secondly that if the need in fact existed and has gone unprovided for, perhaps because of the impecuniosity of the contemplated provider or because the plaintiff is a friendless orphan devoid of providers, the detriment he suffers as a result of the accident is the greater and, if he is not to recover, as I rather think he should, under this particular head of damages, his damages for loss of amenities and pain and suffering will be the greater.
Another consequence of the adoption of this approach is that in this particular area of the law it deprives of all substantiave significance the distinction between special and general damages: if a plaintiff's accident-caused need is the loss to be compensated, the reasonable cost of satisfying that need being only a means of quantifying the damages to be awarded, the distinction between these two kinds of damages becomes unreal. Apart from the use of special damage to describe that which a plaintiff must suffer in torts not actionable per se if he is to have a remedy and to distinguish, in contract, between losses arising naturally from breach and other losses, the term then seems to serve little other useful purpose. The need for particularity of pleadings, for instance, of expenses incurred or wages lost, so that a defendant is not taken unawares, is undoubted but it rests upon no more than a need for fairness towards the defendant. All this Lord Donovan pointed out in Perestrello e Companhia Limitada v. United Paint Co. Ltd. when he said [31] :
Accordingly, if a plaintiff has suffered damage of a kind which is not the necessary and immediate consequence of the wrongful act, he must warn the defendant in the pleadings that the compensation claimed will extend to this damage, thus showing the defendant the case he has to meet and assisting him in computing a payment into court. The limits of this requirement are not dictated by any preconceived notions of what is general or special damage but by the circumstances of the particular case. "The question to be decided does not depend on words, but is one of substance" (per Bowen L.J. in Ratcliffe v. Evans [32] ).
The same principle gives rise to a plaintiff's undoubted obligation to plead and particularise any item of damage which represents out-of-pocket expenses, or loss of earnings, incurred prior to the trial, and which is capable of substantially exact calculation. Such damage is commonly referred to as special damage or special damages but is no more than an example of damage which is "special" in the sense that fairness to the defendant requires that it be pleaded.
The obligation to particularise in this latter case arises not because the nature of the loss is necessarily unusual, but because a plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which make such calculation possible.
In Teubner v. Humble [33] Windeyer J., spoke of the creation of needs that would not otherwise exist as one way in which a personal injury can give rise to damage. His Honour adverted to the impossibility of surely predicting the future but otherwise drew no distinction of kind between past and future damage of this character [1] ; nor does any true distinction, I think, exist, other than the degree of certainty with which each may be quantified. The damages to be awarded for each can in these circumstances scarcely be different in kind; being more precisely known, past expense or loss incurred must, for the reasons already stated, be particularized, but that is all. 1. [1969] 1 W.L.R. 570, at p. 579. 2. [1892] 2 Q.B. 524, at p. 529. 3. (1963) 108 C.L.R. 491, at p. 505. 4. (1963) 108 C.L.R., at p. 507.
It follows that there must be logical difficulty in now applying, in the light of recent decisions, the special rules applicable to special damages which were enunciated by Dixon C.J. and by Fullagar J. in Blundell v. Musgrave [2] . There application may, of course, be avoided, as they were in Wilson v. McLeay [3] and have been in some subsequent cases, by treating the damages awarded as general damages but to do so would then appear to leave no class of damages to which can be given the name "special". In Donnelly v. Joyce [4] Megaw L.J., while apparently attaching no significance to the nomenclature, did describe the damages in question as special damages; in that case what was in fact claimed and actually awarded was an amount equal to the mother's actual loss of earnings and this for reasons to which I refer below. In later cases little significance appears to have been thought to attach to the particular name given to describe the damages awarded. All this is, I think, the result of an approach which looks not to expenses incurred or earnings lost but, rather, to needs created or capacity lost.
If therefore Wilson v. McLeay [3] and Donnelly v. Joyce [4] be regarded as expressing true doctrine for Australia something should be said about one aspect of the latter case which may otherwise mislead. Megaw L.J. treated as the measure of the infant plaintiff's loss, which he had identified [5] , as the existence of his accident-caused need, the amount of his mother's loss of wages incurred while nursing him. His Lordship no doubt did this because it was likely to be less than the cost of skilled nursing services and was all that the plaintiff had claimed in his action. As Bray C.J. points out in Beck v. Farrelly [6] , his Lordship stated that had skilled nursing services cost less a question of mitigation of damages would have arisen. Be that as it may, it is clear that Megaw L.J. regarded the measure of damages as "the value of the mother's services" [1] , being "the fair and reasonable cost of the special attention necessitated by the defendant's wrongdoing" [2] . As is pointed out in Winfield and Jolowicz on Tort, 10th ed. (1975), p. 577, that cost "will not, of course, necessarily be the same as the earnings given up by the friend [or relative] who renders the assistance".
It remains only to mention one further matter: my failure to make other than passing reference to Cunningham v. Harrison [3] and, in particular, to the judgment of Lord Denning [4] , where his Lordship, obiter, recognized an injured husband's right to recover for the value of his wife's services rendered in caring for him. His Lordship went on to refer to the wife as having in such a case rendered services "necessitated by the wrongdoing" and no doubt had in mind that same principle which Megaw L.J. elaborated in Donnelly v. Joyce [5] , the hearing of which coincided with, and judgment in which followed immediately after, that in Cunningham v. Harrison. I have taken as my start-point the later of the two decisions partly because it is in Donnelly v. Joyce that for the first time matters of principle are discussed in detail; partly also because, as Taylor J. pointed out in reference to the earlier judgment of Paull J., to qualify the plaintiff's entitlement to damages, whether by concepts of trust, as Lord Denning suggests, or by means of an exacted undertaking, does appear to come close to a denial of the plaintiff's right of recovery: the reasoning of Megaw L.J. is free of this ambiguity.
This is an appeal by the defendant against whom the respondent, who suffered severe injuries and became quadriplegic as a result of a road accident occasioned by the appellant's negligence, recovered judgment on 10th December 1975 in the sum of $249,736, representing damages and interest, in the Supreme Court of South Australia (Bright J.). The judgment was for $221,936 damages and $27,800 interest. The appellant's case is that the damages awarded were excessive, and there is a cross-appeal on the ground that the damages awarded were inadequate.
The relevant facts may be briefly recounted. The respondent was born in the Netherlands on 24th January 1950 and came to Australia with his parents in 1959. He left school when fourteen years of age and has since then been in continuous employment, although he has pursued various occupations in that time. Some four weeks before the accident he took a position as a shipwright's assistant on 14th February 1972 at Whyalla. The primary judge found that he had a good physical constitution, was always hard-working and anxious to improve himself and that he had considerable prospects of advancement. As a result of the accident he is completely unemployable and wholly unable to look after himself. He has no control of his lower limbs or trunk, he has limited control of his arms but none of his hands which remain permanently clenched. He cannot feed himself even with the aid of a special spoon. He cannot bathe or dress himself, clean his teeth or shave. He has no control of his urinary or excretory functions. He has no sensation below the shoulder line and is therefore liable to injury if force is applied to his body. He uses a special chair which he cannot operate himself, although he will be able to operate an electric chair if, but only if, a house is specially built to his needs.
He suffers from repeated spasms and cannot be left alone during the day or at night. It is hoped that the spasms may be diminished by a new drug which he is taking but the primary judge was not prepared to find on the evidence that the spasms would be eliminated or significantly diminished. At the present time he suffers from twenty or more spasms a day. In addition he sweats profusely and this in itself requires that someone be constantly in attendance not merely to wipe the sweat away but also to provide him with water to drink. Another danger to him is presented by bedsores which are a source of infection and of which he is unaware due to his lack of sensation. He suffers from recurrent bouts of bronchitis and accumulates large quantities of phlegm which can only be expelled by pressure on his diaphragm. He can type with pegs attached to his arms, though he is unable to correct errors. He can read, though he needs assistance in the turning of the pages.
He retains his mental powers and maintains a cheerful disposition for the most part despite his appalling misfortune. This is no doubt due in large measure to the selfless devotion of his fiancee and his family who have lavished care and attention upon him. He lives now in a house with his fiancee who, though she is in full-time employment, cares for him with the assistance of members of his family. For her it is an extremely arduous life.
As a quadriplegic he is extremely vulnerable to disease and injury. Notwithstanding the improved methods of care for quadriplegics, the primary judge found that the respondent's life expectancy is now reduced to a period of fifty-five years. The judge was not satisfied that the respondent and his fiancee would marry. In any event he concluded that she could not continue to care for him without paid assistance. Without her help it will be necessary for the respondent to enter a nursing home. Even with her help it will be necessary for him to enter such a home at recurring, and decreasing, intervals of time. The judge estimated that the respondent would spend six weeks a year in a nursing home in the next few years, increasing to most, if not all, of the year by the time the respondent attains the age of forty-five.
The judge calculated the amount of damages awarded as follows:
Special damages 9,936 Non-economic loss 30,000 Economic loss measured in wages lost to 10.12.75. 16,000 Economic loss from 11.12.75. to presumed date of death 60,000 Cost of equipping house 1,000 Value of services rendered by fiancee and family to 10.12.75. 15,000 Cost of future care of plaintiff 80,000 Sundry future expenses i.e. maintenance of equipment personal expenses and medical expenses not elsewhere included 10,000 $221,936
The component in the item "Cost of future care of plaintiff" for voluntary services to be rendered by the fiancee and the family is $40,000.
I have already found a life expectancy for a period ceasing at the age of 55. This is a period of about thirty years from date of judgment. I accept the Public Actuary's opinion that a capitalization rate of 8½% is reasonable. The value of each $1 of weekly loss is therefore somewhere between $500 and $600. I do not propose to find an exact figure: I treat these calculations as merely guides or indicators. The weekly loss at the present rate of wages is $115. I need not repeat my earlier comments on the plaintiff's industriousness and likelihood of advancement. I believe that in this case risk of loss of earnings is more than counterbalanced by chance of increased earnings. I recognize the dangers of this approach and make it not as a general approach but specifically in relation to the present case. I disregard inflation. I fix a figure of $60,000 on this head.
With respect to the overall assessment of damages in the amount of $221,936 as a whole his Honour said:
From the aggregate figure he must first pay the special damages, $9,936. Then he ought to pay the $15,000 for services rendered. He will gradually absorb the $10,000 for future expenses. He intends to build a house to his special requirements with wide passages, ramps, extensive concrete paths, special bathroom facilities and so on. He will have to furnish it. This will absorb the $1,000 and, I should think, another $45,000, for the house cannot be small. He will probably buy another car, say $5,000. Those amounts aggregate over $55,000 on which he will not receive interest, leaving $135,000 for investment. At 8½% he would get a little over $200 per week. If $165 per week is taken out for cost of weekly care and further sums for recurrent costs on house and car, food for plaintiff and fiancee and perhaps an assistant, not to mention income taxes, it is clear that whilst he lives at home he must necessarily eat into his capital. I think that he would do so, even if in a nursing home for, if there, he would still have to support his fiancee in the house. Capital erosion, of course, occurs at an increasing rate as the capital sum diminishes.
The calculation of interest was based on the view that interest at the rate of 8½% per annum, the rate found to be appropriate, should run on the following components in the award of damages:
2/5 of $16,000 = 6,400 2/5 of $15,000 = 6,000 30,000 60,000 $102,400
Interest was made to run from 30th September 1972 to 10th September 1975.
The appellant's case is that the learned judge erred in the following respects:
(a) In calculating the respondent's future economic loss he did not apply correctly the actuarial evidence and made no allowance for contingencies adverse to the respondent;
(b) Likewise, in calculating economic loss to the date of judgment he made no allowance for such contingencies;
(c) He did not deduct from the cost of the respondent's future car the cost of his sustenance;
(d) He quantified amounts for specific heads of damage contrary to the approach counselled by Barwick C.J. inArthur Robinson (Grafton) Pty. Ltd. v. Carter [6] and thereby created an overlapping between the various heads of damage;
(e) He included in the damages an amount of $15,000 in respect of the value of the services already rendered to the respondent by his fiancee and his family and an amount of $40,000 in respect of services to be provided by them in the future.
On the other hand, the respondent submits that the damages awarded for non-economic loss were inadequate, that in assessing future economic loss and the cost of the respondent's future care the actuarial calculations were discounted for no stated reason, that the allowances made for the cost of providing special features in the respondent's proposed house were inadequate, and that there was a failure to make allowance for taxation in the assessment of the future economic loss.
No complaint is made by the parties of the amounts calculated in respect of special damages ($9,936). Nor is there any dispute as to the quantification of the value of services rendered by the family before judgment ($15,000), though the appellant questions the legal basis for its inclusion in the award of damages.
I begin with the respondent's criticism that the primary judge erred in assessing future economic loss. It is conceded by the appellant that the judge was wrong in finding that the respondent's life expectancy was about thirty years for the purpose of assessing this head of damage. Skelton v. Collins [7] establishes that in calculating future economic loss the court looks to the injured person's life expectancy before, and not after, the accident. Accordingly, his Honour should have taken as the foundation for this calculation the actuarial evidence which was that at an interest rate of 8½ per cent per annum, a rate which is not in dispute, the present value of an annuity of $1 a week to a man aged twenty-six, the annuity being payable throughout life, was $595. Instead he took a figure "somewhere between $500 and $600", which was erroneously designed to reflect a life expectancy of thirty years approximately, this being the life expectancy after the accident, and by reference to a weekly wage loss of $115 arrived at a total of $60,000 for future economic loss.
Taking the figure of $595 and multiplying it by $115 would give a result of $68,425. This, it should be emphasized, is purely a mathematical exercise and must be viewed in the light of the assessments made in respect of other heads of damage. It would not have been inappropriate to have discounted this amount down to $60,000 to allow for adverse contingencies. However, his Honour made no allowance in this respect because he considered that the respondent would have bettered himself and improved his earnings. For my part, notwithstanding this finding, I am of the opinion that some allowance should have been made for contingencies, even if it be significantly smaller than usual. The materials in evidence were not sufficiently powerful to demonstrate convincingly that the respondent's earning capacity was so great as to eliminate the possiblity of a reduction in a continuing level of earnings at $115 per week due to unfavourable contingencies, contingencies which, it might be thought, would very likely affect a person entering upon the occupation of a shipwright's assistant at Whyalla. The figure of $60,000 for future economic loss is to my mind not an excessive figure; if anything, it may be slightly less than the figure I myself would set upon this head of damage.
The allowance of $16,000 for economic loss up to the date of judgment was challenged by the appellant on the ground that it reflected no discount for contingencies. This criticism was based on the observations of Barwick C.J. in the Arthur Robinson Case [8] . To this there are several answers: first, that what was done here accords with accepted practice, though the lapse of four years between the date of injury and trial tends to suggest that some discount might have been made; secondly, the respondent has not had the benefit of the wages he would have earned in that time; and thirdly, the figures on which the calculations were made reflect tax rates which were excessive in that they were applicable to a man with no allowable deductions.
The amount set for non-economic loss, though accepted as correct by the appellant, was strongly criticized by the respondent. If I were called upon to place a money sum on this head of damage in isolation and without regard to the evaluation of other heads of damage, I would regard the amount of $30,000 as somewhat low. However, we are not engaged in making an isolated assessment independently of assessing other heads of damage. The amount arrived at has been viewed in association with the provision made in respect of other matters. So viewed the amount wears a different complexion and I am unable to see that it is too low.
The next item challenged by the appellant was the figure of $80,000 for the respondent's future care. It was expressed to be based on a nursing home cost of $165 per week. Two principal objections were made by the appellant to it. First, it includes the cost of the respondent's sustenance and consequently leads to overlapping because the respondent's sustenance should be provided out of other heads of damages, a point made by Taylor J. in Skelton v. Collins, where his Honour said [9] :
In the ordinary run of cases it is no doubt proper to assess damages substantially by reference to the amount of wages actually lost up to the date of trial and by reference to the present value of any probable future loss of that character. But where, as here, there is nothing to suggest that, if the appellant had not been injured, his wages would have been more than sufficient to provide for his own maintenance during his shortened life, it was erroneous to award a sum for loss of wages in addition to a larger sum calculated to provide for his complete maintenance and care during that period. See also Taylor v. Bristol Omnibus Co. Ltd. [10] . The criticism is therefore well founded. It follows that an amount of about $15 per week should be subtracted from the estimate of costs to reflect the cost of sustenance, thereby reducing the figure of $80,000 by one-eleventh to $73,000 approximately. 1. (1966) 115 C.L.R., at p. 106. 2. [1975] 1 W.L.R. 1054, at p. 1060; [1975] 2 All E.R. 1107, at p. 1113.
The second objection taken to the estimation of the cost of future care was that the calculation assumed that there was a need for full-time nursing home care as from the date of the judgment. In my opinion this objection is not well based. We know from the judge's findings that the need for full-time nursing home care would not eventuate until the respondent attains the age of forty-five or thereabouts. His Honour saw the need for nursing home care as one which would develop increasingly over the years. The learned judge thought it proper to value the services provided by the respondent's family by reference to the cost of nursing home care and he contemplated that of the total amount of $80,000 set against this head of damage $40,000 represented the value of services to be provided by the family. The total amount of $80,000 does not seem to have been computed on the footing that it would provide $165 per week during the respondent's expected life. If one takes a life expectancy of fifty-five years, an interest rate of 8½ per cent per annum and the present value postulated by his Honour of $550 for an annuity of $1 a week, the product of $80,000 is $145 per week. Consequently the total amount involves a discount of $20 per week on the stated figure of $165 per week. This discount may have been intended to reflect a somewhat smaller allowance for those periods of time in which the respondent is expected to remain at home. But whether this be so or not I am unable to see that his Honour erred in valuing the cost of the services to be provided by the fiancee and the family by reference to the cost of providing nursing home care. Indeed, in my view it was correct so to do and I am fortified in this opinion by what Lord Denning M.R. had to say in Taylor v. Bristol Omnibus Co. Ltd. [11] .
The consequence is that, although his Honour erred by failing to deduct from the amount to be allowed the actual cost of sustenance of the respondent, he discounted the standard costs of $165 per week when on the approach which he had taken there was no occasion to do so. On balance it seems to me that the amount of $80,000 is a fair estimate of the cost of future care.
The amount of $10,000 allowed for sundry future expenses is intended to cover medical expenses of at least $3 per week, supplies of materials made necessary by reason of the respondent's condition costing $7 per week and special equipment amounting to $9 per week, in all a total of at least $19 per week. In this respect also the amount arrived at by the primary judge is less, though in this case only slightly less, than the actuarial calculations would indicate. But the difference is so slight that it may be disregarded.
The amount of $1,000 allowed for the cost of equipping a house seems to be a conservative estimate. The expert evidence indicates that a residence suitable to the respondent's needs would require to have wide doors, wide passages, ramps leading from ground level to house level, considerable paving around and about the house and a special bathroom larger in size than the usual bathroom. In addition a large garage would be required capable of taking a fairly large car which is the only type of car suited to his needs. It would have to provide storage space for his chairs. Consequently, the house which the respondent requires is more expensive than the average house, partly because it is larger and partly because it has features which are uncommon. Again, if I were looking at this head of damage in isolation I should have been disposed to have fixed a somewhat larger amount because it is very likely that the respondent will be compelled to spend money in either building a suitable house or in making alterations to an existing house in order to make it suitable and in acquiring furniture specially adjusted to his circumstances. It is probable that he will not recover the full value of his expenditure when he comes to resell.
The appellant's general attack on the method by which the learned judge arrived at his overall assessment of damages, that is by setting round money sums on individual heads of damage, and by resorting to actuarial calculations, is supported by the criticisms made of that approach by Barwick C.J. in the Arthur Robinson Case [12] and reiterated by him more recently in Ruby v. Marsh [13] . But the views expressed by the learned Chief Justice were not accepted by the other members of the Court in the Arthur Robinson Case or in Ruby v. Marsh. More recently they have been rejected by a majority of the Court in Sharman v. Evans [14] , and Dessent v. The Commonwealth [15] ; see also Gamser v. Nominal Defendant [16] , per Gibbs J. [17] , per Stephen J. [18] . The assessment of damages for personal injury by setting money sums on particular heads of damage and of resorting to actuarial calculations accords with past practice here and in the United Kingdom: see the Arthur Robinson Case [19] ; General Motors-Holden's Pty. Ltd. v. Moularas [20] ; and Taylor v. Bristol Omnibus Co. Ltd. [21] .
Apart from the question of law as to the recoverability of the value of services provided and to be provided by the respondent's fiancee and members of his family, a question which remains to be considered, it is my opinion that neither the appellant nor the respondent has shown that the damages awarded were relevantly disproportionate to the injuries which he sustained. Although his Honour disadvantaged the respondent in calculating economic loss with a life expectancy of fifty-five years in mind, he gave the respondent the advantage of making no discount for unfavourable contingencies. Likewise, although the actuarial figures would have supported a higher figure for the cost of future care of the respondent, the amount allowed for this item included the cost of sustenance which should have been omitted. The third matter is the allowance for the cost of equipping a house, which might well have been increased. However, these differences in estimation substantially cancel out. They do not persuade me that the overall sum awarded was an erroneous assessment of the damages to which the respondent is entitled and they entirely fail to demonstrate that the amount awarded was wholly disproportionate to the respondent's injuries.
This brings me to the outstanding question of law. In Blundell v. Musgrave, Dixon C.J. said [22] :
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 [23] , that legal liability was the only criterion. His Honour went on to say [24] : It may be 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 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. 1. (1956) 96 C.L.R. 73, at p. 79. 2. (1816) 1 Stark. 287, at p. 289 [171 E.R. 475, at p. 476]. 3. (1956) 96 C.L.R., at pp. 79-80.
Fullagar J. said [25] that it was not necessary for the plaintiff in an action for damages for personal injuries caused by negligence "to prove that he has paid the fees chargeable for the services rendered, but it is, generally speaking, necessary for him to prove that he has incurred a legal obligation to pay those fees". His Honour went on to say: "The right to recover depends, of course, on a practical certainty, or at least a high degree of probability, that the payment will have to be made. The existence of a legal liability is strong prima facie evidence that the payment will have to be made. But it is not conclusive evidence." After referring to Canadian authority which supported this view, Fullagar J. said that Allen v. Waters & Co. [26] , a decision of the Court of Appeal, could only be justified (if at all) on the ground that the amount recovered by the plaintiff for hospital fees payable in respect of his wife, who was injured by the defendant's negligence, was that it was an amount which he was legally liable to pay to the hospital though it was statute-barred. His Honour went on to distinguish Liffen v. Watson [27] and Dennis v. London Passenger Transport Board [28] as cases which did not involve the question "whether the plaintiff is entitled, in the assessment of his damages, to be credited with the amount of an actual or prospective expenditure by him, but whether he ought to be debited with the amount or value of a subvention of which he has had the benefit" [29] .
Neither Dixon C.J. nor Fullagar J. made any reference to the Court of Appeal decision in Roach v. Yates [30] where it was held that the plaintiff was entitled to recover the minimum expense which he would have to incur in retaining the nursing services of his wife and his sister-in-law, there being no legal liability on him to pay salary or fees to them. And it is Roach v. Yates that has proved to be the source of a powerful line of authority in England to which I shall shortly refer. The other members of the Court in Blundell v. Musgrave [31] did not find it necessary to consider the question.
Subsequently, in Wilson v. McLeay [32] , Taylor J. expressed the view that an injured plaintiff may recover as part of her damages an allowance to permit the reasonable attendance upon her of her parents who lived a great distance away, a view which appears to be in conformity with an unreported decision of the Court in Morgan v. Hosking [33] : see [34] .
Since then it has been held in a succession of cases in England, in particular by the Court of Appeal, that an "injured plaintiff can recover the value of nursing and other services gratuitously rendered to him by a stranger to the proceedings": Hay v. Hughes [35] . See Wattson v. Port of London Authority [36] ; Cunningham v. Harrison [37] ; Donnelly v. Joyce [38] ; Davies v. Borough of Tenby [39] ; Taylor v. Bristol Omnibus Co. Ltd [40] . In Cunningham v. Harrison the plaintiff recovered the value of nursing services rendered to him by his wife, there being no legal agreement that he would pay her for what she did. In Donnelly v. Joyce an infant plaintiff recovered the value of nursing services provided by his mother who gave up her employment to care for him. The Court rejected the argument that in the absence of a legal liability to pay, the reimbursement sought was reimbursement of another person's loss. Megaw L.J., who delivered the judgment of the Court, said [41] :
The loss is the plaintiff's loss. The question from what source the plaintiff's needs have been met, the question who has paid the money or given the services, the question whether or not the plaintiff is or is not under a legal or moral liability to repay, are, so far as the defendant and his liability are concerned, all irrelevant. The plaintiff's loss, to take this present case, is not the expenditure of money to buy the special boots or to pay for the nursing attention. His loss is the existence of the need for those special boots or for those nursing services, the value of which for purposes of damages - for the purpose of the ascertainment of the amount of his loss - is the proper and reasonable cost of supplying those needs. and went on to say: it does not matter, for that purpose, whether the plaintiff has a legal liability, absolute or conditional, to repay to the provider what he has received, because of the general law or because of some private agreement between himself and the provider; it does not matter whether he has a moral obligation, however ascertained or defined, so to do. The question of legal liability to reimburse the provider may be very relevant to the question of the legal right of the provider to recover from the plaintiff. That may depend on the nature of the liability imposed by the general law or the particular agreement. But it is not a matter which affects the right of the plaintiff against the wrongdoer. 1. [1975] Q.B. 790, at p. 807. 2. [1969] 1 Lloyd's Rep. 95, at pp. 101-102. 3. [1973] Q.B. 942. 4. [1974] Q.B. 454. 5. [1974] 2 Lloyd's Rep. 469. 6. [1975] 1 W.L.R. 1054; [1975] 2 All E.R. 1107. 7. [1974] Q.B., at p. 462.
The Court followed its earlier decisions in Roach v. Yates [42] and Liffen v. Watson [43] and stated that in so far as Allen v. Waters & Co. [44] might be thought to be inconsistent with those decisions, it preferred them. The Court referred to, but declined to follow, the observations of Dixon C.J. in Blundell v. Musgrave [45] and regarded the decision of Taylor J. in Wilson v. McLeay [46] as being consistent with the conclusions which it reached.
In Beck v. Farrelly [47] , the Full Court of the Supreme Court of South Australia adopted and applied the recent English decisions and the fomulation of the relevant principle by the Court of Appeal in Donnelly v. Joyce [48] . It was correct in so doing, for in my opinion the passages from the judgment of Megaw L.J. which I have quoted accurately express the law on the question. The respondent's relevant loss is his incapacity to look after himself as demonstrated by the need for nursing services and this loss is to be quantified by reference to the value or cost of providing those services. The fact that a relative or stranger to the proceedings is or may be prepared to provide the services gratuitously is not a circumstance which accrues to the advantage of the appellant. If a relative or stranger moved by charity or goodwill towards the respondent does him a favour as a disabled person then it is only right that the respondent should reap the benefit rather than the wrongdoer whose negligence has occasioned the need for the nursing service to be provided. Enough has been said in the cases which have been decided more recently to indicate that the old view based on 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 service. It is now recognized that the true loss is the loss of capacity which occasions the need for the service. In consequence the existence of a legal liability to pay is not the dominant consideration. Furthermore, the old view, by insisting upon the existence of a legal liability to pay as a condition of recovery in respect of the provision of the service, threw up issues of fact which were not susceptible of accurate determination. In relation to the provision of voluntary services there is the inevitable and intractable question: For how long will the voluntary service be provided? Although the new approach does not entirely eliminate this question, it descends to the level of a less critical consideration.
In Donnelly v. Joyce the value of the nursing services provided by the mother was calculated by reference to the wages which she had sacrificed by giving up her employment and the damages were assessed on this footing. But the case does not decide that this is the true measure of the relevant head of damage. The decision is, I think, to be explained on the ground that the case was conducted on the footing that if the damages were recoverable in respect of the nursing services provided by the mother they were to be calculated by reference to the wages which she had sacrified. In general the value or cost of providing voluntary services will be the standard or market cost of the services - see Taylor v. Bristol Omnibus Co. Ltd. [49] , which I have already referred.
Although there has been a suggestion in some of the cases, notably Allen v. Waters & Co. [50] , Schneider v. Eisovitch [51] and Cunningham v. Harrison [52] , that a plaintiff should hold that part of the damages awarded as is referable to services provided gratuitously in trust for the person providing the services, it is a suggestion which is unacceptable. There is no foundation for the erection of a trust. The theory on which the plaintiff is permitted to recover is that the damages are awarded as compensation for his loss, whether he is under a legal liability or other obligation to pay for the services or not.
Here no problem arises in connexion with the provision of a service by the state for which no charge is made. Although there is no occasion to decide the question now, I should in passing express my inclination to agree with Lord Denning M.R. in Cunningham v. Harrison [53] that the defendant is not bound to pay for it.
As Bray C.J. and Mitchell J. have pointed out in Beck v. Farrelly [54] , the principle enunciated in Donnelly v. Joyce [55] may pose some questions in related fields, notably in connexion with the decision of this Court in Graham v. Baker [56] (see also Modern Law Review, vol. 37 (1974), at pp. 341-348), but there is no need to discuss them here.
Griffiths
Kerkemeyer