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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
Civil Action No. 403 of 2009
BETWEEN:
MOHEEZ NOSHEEN ALI
of Lot 27 Mana Place, Nadawa, Nasinu, in the Republic of Fiji Islands, Manager but currently unemployed.
PLAINTIFF
AND:
KAVAIA SAVOU RADRUTA aka KAVAIA S RAIDRUTA
of Lot 2, Mana Place, Nadawa, Nasinu in the Republic of Fiji Islands, Farmer.
DEFENDANT
BEFORE : Master Deepthi Amaratunga
COUNSEL : Mr. R. Naidu for the Plaintiff
Mr. A. Vulaono for the Defendant
Date of Hearing : 31st January, 2013
Date of Decision : 19th February, 2013
DECISION
Revelation of interim payment order at hearing by Defendant
Non disclosure of interim payment (O29.r.15)
15. The fact that an order has been made under rule 11 or 12 shall not be pleaded and, unless the defendant consents or the Court so directs, no communication of that fact or of the fact that an interim payment has been made, whether voluntarily or pursuant to an order, shall be made to the Court at the trial, or hearing of any question or issue as to liability or damages until all questions of liability and amount have been determined.’ (emphasis added).
Assessment of Damages
General damages
Pain and suffering and loss of amenities of life
'My Lords, claims for damages in respect of personal injuries constitute a high proportion of civil actions that are started in the courts in this country. If all of them proceeded to trial the administration of civil justice would break down; what prevents this is that a high proportion of them are settled before they reach the expensive and time-consuming stage of trial, and an even higher proportion of claims, particularly the less serious ones, are settled before the stage is reached of issuing and serving a writ. This is only possible if there is some reasonable degree of predictability about the sum of money that would be likely to be recovered if the action proceeded to trial and the plaintiff succeeded in establishing liability. The principal characteristic of actions for personal injuries that militate against predictability as to the sum recoverable are, first, that the English legal system requires that any judgment for tort damages, not being a continuing tort, shall be for one lump sum to compensate for all loss sustained by the plaintiff in consequence of the defendant's tortious act whether such loss be economic or non-economic, and whether it has been sustained during the period prior to the judgment or is expected to be sustained thereafter. The second characteristic is that non-economic loss constitutes a major item in the damages. Such loss is not susceptible of measurement in money. Any figure at which the assessor of damages arrives cannot be other than artificial and, if the aim is that justice meted out to all litigants should be even-handed instead of depending on idiosyncrasies of the assessor, whether jury or judge, the figure must be “basically a conventional figure derived from experience and from awards in comparable cases” ...
The need for a judge in assessing damages for non-economic loss to have regard to awards in comparable cases has led to progressive general increases in the level of awards, particularly for serious injuries. These have been intended to reflect, though admittedly imperfectly, the general increase in the level of salaries and wages and, more particularly since inflation became rampant, the decrease in the real value of the money due to this cause. It is with the increase in the nominal amount of awards in “the money of the day” (to borrow the apt phrase used by Barwick CJ in O'Brien v McKean [1968] HCA 58; (1968) 118 CLR 540 at 545) due to inflation that your Lordships are primarily concerned in the instant case. That increase in awards has taken place irregularly by fits and starts rather than following the actual shape of the rising curve of inflation; and there have been periods, particularly between 1973 and 1979, when it lagged significantly behind the decrease in real value of the money of the day. This was pointed out in Walker v John McLean & Sons Ltd [1979] 2 All ER 965 at 970, [1979] 1 WLR 760 at 765, where the Court of Appeal reaffirmed the rule of practice that damages for non-economic loss are to be assessed by reference to the value of money at the date of the trial and not at some other and lower sum calculated by reference to an earlier and higher value of the pound ...
Lord Wilberforce, Lord Edmund-Davies and Lord Scarman [in Pickett v British Rail Engineering Ltd [1979] 1 All ER 774, [1980] AC 136] pointed out the fallacy underlying the new “no interest” guideline propounded by Lord Denning MR in Cookson v Knowles. As Lord Wilberforce succinctly put it ( [1979] 1 All ER 774 at 782, [1980] AC 136 at 151): “Increase for inflation is designed to preserve the 'real' value of money, interest to compensate for being kept out of that 'real' value. The one has no relation to the other. If the damages remained, nominally, the same, because there was no inflation, interest would normally be given. The same should follow if the damages remain in real terms the same.” ...
If judges carry out their duty of assessing damages for non-economic loss in the money of the day at the date of the trial, and this is a rule of practice that judges are required to follow, not a guideline from which they have a discretion to depart if there are special circumstances that justify their doing so, there are two routes by which the judge's task of arriving at the appropriate conventional rate of interest to be applied to the damages so assessed can be approached ...
My Lords, given the inescapably artificial and conventional nature of the assessment of damages for non-economic loss in personal injury actions and of treating such assessment as a debt bearing interest from the date of service of the writ, it is an important function of the Court of Appeal to lay down guidelines both as to the quantum of damages appropriate to compensate for various types of commonly occurring injuries and as to the rates of “interest” from time to time appropriate to be given in respect of non-economic loss and of the various kinds of economic loss. The purpose of such guidelines is that they should be simple and easy to apply though broad enough to permit allowances to be made for special features of individual cases which make the deprivation caused to the particular plaintiff by the non-economic loss greater or less than the general run of cases involving injuries of the same kind. Guidelines laid down by an appellate court are addressed directly to judges who try personal injury actions; but confidence that trial judges will apply them means that all those who are engaged in settling out of court the many thousands of claims that never reach the stage of litigation at all or, if they do, do not proceed as far as trial will know very broadly speaking what the claim is likely to be worth if 100% liability is established. The Court of Appeal, with its considerable case-load of appeals in personal injury actions and the relatively recent experience of many of its members in trying such cases themselves is, generally speaking, the tribunal best qualified to set the guidelines for judges currently trying such actions, particularly as respects non-economic loss; and this House should hesitate before deciding to depart from them, particularly if the departure will make the guideline less general in its applicability or less simple to apply. A guideline as to quantum of conventional damages or conventional interest thereon is not a rule of law nor is it a rule of practice. It sets no binding precedent; it can be varied as circumstances change or experience shows that it does not assist in the achievement of even-handed justice or that it makes trials more lengthy or expensive or settlements more difficult to reach. But, though guidelines should be altered if circumstances relevant to the particular guideline change, too frequent alteration deprives them of their usefulness in providing a reasonable degree of predictability in the litigious process and so facilitating settlement of claims without going to trial. As regards assessment of damages for non-economic loss in personal injury cases, the Court of Appeal creates the guidelines as to the appropriate conventional figure by increasing or reducing awards of damages made by judges in individual cases for various common kinds of injuries. Thus, so-called “brackets” are established, broad enough to make allowance for circumstances which make the deprivation suffered by an individual plaintiff in consequence of the particular kind of injury greater or less than in the general run of cases, yet clear enough to reduce the unpredictability of what is likely to be the most important factor in arriving at settlement of claims. “Brackets” may call for alteration not only to take account of inflation, for which they ought automatically to be raised, but also, it may be, to take account of advances in medical science which may make particular kinds of injuries less disabling or advances in medical knowledge which may disclose hit her to unsuspected long-term effects of some kinds of injuries or industrial diseases.'
In Walker v John McLean & Sons Ltd [1979] 2 All ER 965, [1979] 1 WLR 760 the plaintiff was a paraplegic. The parties had accepted the accuracy of the table of comparative values of the pound found in Kemp and Kemp The Quantum of Damages (4th edn, 1975) vol 2, p 601. Cumming-Bruce LJ said [1979] 2 All ER 965 at 970, [1979] 1 WLR 760 at 765:
'Great caution has to be exercised in the examination and analysis of comparable awards because the facts inevitably differ and the influence of other items in each total award play a part which it is not always easy to identify or measure ... In our view the recorded awards since 1973 are open to the criticism that they demonstrate that generally the courts have failed during the last five years to take sufficient account of the fact that the damages awarded for loss of amenity were worth significantly less than similar awards in earlier years. We do not encourage the application of a rigid multiplier to accord arithmetically with the changing values of the pound shown in the table to which we have referred. We content ourselves with the observation that by his award of £35,000 under this head the judge restores a consistency with awards made before 1973 which cannot be found in many awards made since that year.' (emphasis is mine)
‘.. he sustained closed segmental fractures of his right femur and tibia/fibula. He had undergone surgery with interlocking intramedullary nails on his right thigh and leg on the 8th of July, 2009.
Pertinent findings on examination include, an obvious shortening of his right leg as compared to his left, motor and sensory function of 4/5 on his right and generalized pain on his right hip and knee region. There is decreased range of motion on the right hip region.’(emphasis is mine)
Further P1 states as follows
‘Recent x-rays of his right leg showed the implants in good position without any evidence of metal failure or loosening. The fractures have healed but the x-ray of the right hip showed intra-osseous bony growth on the greater trochanter region. This condition is known as Myositis Ossificans which can cause pain and discomfort on the affected region....
Presently the patient now walks with a limp on the right leg and has subjectively complained of persistent on and off pain on his right hip and knee.’
‘6. The Parties agree to the following
| 22.50 |
| 5.50 |
| 7.00 |
| 300 |
| 300 |
| |
| |
| |
‘Special Damages- The plaintiff will not be allowed at the trial to give evidence of any special damage which is not claimed explicitly, either in his pleading or particulars (Hayward v Pullinger and Partners Ltd [1950] 1 All E.R 581; Anglo –Cyprion Trade Agencies Ltd v Paphos which the plaintiff has sustained must be pleaded and particularized otherwise it cannot be recovered (Ilkiw v Samuels [1963] 1 WLR 991; [1963] 2 All ER 879......
.....in personal injury actions, any benefits accrued, whether by way of unemployment benefit or from other sources, should be disclosed at the earliest possible moment on the pleading (Cheesmand v Bowaters United Kingdom Paper Mills Ltd [1971] 1 WLR 1773; [1971] 3 All E.R. 513 CA)
Services rendered to the Plaintiff gratuitously by a relative or friend in provision of nursing care or domestic assistance of the kind rendered by the injuries the plaintiff suffered are special damages and they are considered accordingly and U.K House of Lords decision of Hunt (now Severs) v Severs [1994] UKHL 4; [1994] 2 All ER 385.
“We do not agree with the proposition, inherent in counsel for the defendant'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 wrongdoing. 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. That, in our judgment, is the key to the problem. So far as the defendant is concerned, the loss is not someone else's loss. It is the plaintiff's loss.
Further at 481
Then, as regards agreements between the provider and the plaintiff. There are cases, particularly in recent years (though again, so far as we are aware, none which is binding on us) in which it has been held that the plaintiff's right to recover damages in respect of money paid or the value of services rendered on his behalf by some other person can be brought into existence if, subsequent to the wrongdoing, a contract for reimbursement is made between the plaintiff and the provider. For example, the decisions in Haggar v de Placido and in McDonnell v Stevens so hold. With all respect, this, in our judgment, is erroneous doctrine. Of course, if such an agreement is made, it may be relevant to the question whether the provider can recover from the plaintiff. But it should not be, and, as we think, is not, relevant to the question of the liability of the defendant wrongdoer, its extent, or the question to whom the liability is owed. The defendant is not a party to the contract. He knows nothing of its making. It is res inter aliosacta.” (emphasis added)
“6. Res inter aliosacta
1st Automotive's next point was that it did not matter whether Mrs. Dimond was liable to pay for the hire of the Ford Mondeo. The fact was that Mr. Lovell had negligently deprived her of 8 days use of her Suzuki. This was her loss and the fact that she had been lucky enough to obtain the use of another car for nothing was, as one used to say, res inter aliosacta. It should not affect Mr. Lovell's liability, any more than if a friendly neighbour who happened to be going on holiday had put his car at her disposal. The neighbour would be surprised to learn that his generosity had been for the benefit of Mr. Lovell.
This argument has very respectable support in the authorities. Mr. Wingate-Saul began with the decision of this House in Parry v. Cleaver [1970] A.C.1. Lord Reid there said, at p. 14, that it would be unjust for damages to be reduced to take into account benefits that the plaintiff received "from the benevolence of his friends or relations or of the public at large" so that "the only gainer would be the wrongdoer." Lord Reid also said that benefits from insurance taken out by or for the plaintiff should be disregarded because "the plaintiff has bought them" and it would be unjust that "the money which he prudently spent on premiums...should endure for the benefit of the tortfeasor." He applied this reasoning to hold that benefits from a contributory disability pension fund should also be disregarded.
In Donnelly vce [197>[1974] Q.B. 454 Megaw L.J. derived from these decisions a general theory that benefits received from third parties were res inter aliosacta. A boy o sustained bad injuries to his leg in a road accident. For For six months he required daily attention. His mother gave up her job to look after him. The claim for damages on behalf of he boy included the mother's loss of earnings. This was objected to on the grounds that the boy had incurred no obligation to repay his mother for her services. Megaw L.J. said, at p. 462, that the fact that the boy had obtained the necessary care without payment was irrelevant to his claim:
"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. That, in our judgment, is the key to the problem. So far as the defendant is concerned, the loss is not someone else's loss. It is the plaintiff's loss."
A general principle that benefits provided by third parties are res inter aliosacta is obviously strongly supportive of 1st Automotive's argument. And that principle was applied by the Court of Appeal in McAll v. Brooks [1984] R.T.R 99 on facts very similar to the present case. The plaintiff reasonably required a replacement car after his own had been damaged in an accident. His insurance brokers provided the car under an arrangement that was alleged to be illegal insurance business and would have prevented them from being subrogated to the plaintiff's claim for damages in respect of the loss of the use of his car. Lawton L.J. said, at p. 103, that the principle in Donnelly v. Joyce [1973] EWCA Civ 2; [1974] Q.B. 454 made the relationship between the plaintiff and his insurance company irrelevant:
"It is admitted by the defendant that the plaintiff had a need for a replacement car. Lords Insurance Brokers Ltd. satisfied that need. It is accepted that the charge of £328 was a reasonable charge having regard to all the circumstances. On the authority of Donnelly's case that need had to be paid for by the defendant as the wrongdoer."
That is the high water mark of authority in favour of 1st Automotive. But since high water the tide has retreated. The courts have realized that a general principle of res inter aliosacta which assumes that damages will be paid by "the wrongdoer" out of his own pocket is not in accordance with reality. The truth is that virtually all compensation is paid directly out of public or insurance funds and that through these channels the burden of compensation is spread across the whole community through an intricate series of economic links. Often, therefore, the sources of "third party benefits" will not in reality be third parties at all. Their cost will also be borne by the community through taxation or increased prices for goods and services. So in Hunt v. Severs [1994] UKHL 4; [1994] 2 A.C. 350 the House of Lords rejected the broad res inter aliosacta principle of Donnelly v. Joyce [1973] EWCA Civ 2; [1974] Q.B. 454. Lord Bridge of Harwich cited, at p. 360, the passage from the judgment of Megaw L.J. which I have quoted and said:
"With respect, I do not find this reasoning convincing. I accept that the basis of a plaintiff's claim for damages may consist in his need for services but I cannot accept that the question from what source that need has been met is irrelevant. If an injured plaintiff is treated in hospital as a private patient he is entitled to recover the cost of that treatment. But if he receives free treatment under the National Health Service, his need has been met without cost to him and he cannot claim the cost of the treatment from the tortfeasor. So it cannot, I think, be right to say that in all cases the plaintiff's loss is 'for the purpose of damages . . . the proper and reasonable cost of supplying [his] needs.'"
The House treated the two cases mentioned by Lord Reid in Parry v. Cleaver [1970] A.C.1, 14 ("the fruits of insurance which the plaintiff himself has provided" and "the fruits of the benevolence of third parties") as "apparent exceptions to the rule against double recovery" founded on the special considerations of policy which Lord Reid had explained: see Lord Bridge of Harwich, at p. 358. The House declined to create another exception for the case in which, as in Donnelly v. Joyce [1973] EWCA Civ 2; [1974] Q.B. 454, the plaintiff claims compensation for the reasonable cost of necessary services which have in fact been provided voluntarily by a third party. It decided that in such a case damages cannot be recovered for the plaintiff's own benefit. He can sue only if he claims as trustee for the person who provided the services: see p. 363. This case is of course far away from the gratuitous provision of services (usually by a relative) which was considered suitable for recovery as trustee in Hunt v. Severs [1994] UKHL 4; [1994] 2 A.C. 350. If Mrs. Dimond is allowed to sue Mr. Lovell as trustee for 1st Automotive, the effect will be to confer legal rights upon 1st Automotive by virtue of an agreement which the Act of 1974 has declared to be unenforceable. This would be contrary to the intention of the Act. The only way, therefore, in which Mrs. Dimond could recover damages for the notional cost of hiring a car which she has actually had for free is if your Lordships were willing to create another exception to the rule against double recovery. I can see no basis for doing so. The policy of the Act of 1974 is to penalise 1st Automotive for not entering into a properly executed agreement. A consequence is often to confer a benefit upon the debtor, but that is a consequence rather than the primary purpose. There is no reason of policy why the law should insist that Mrs. Dimond should be able to retain that benefit and make a double recovery rather than that it should reduce the liability of Mr. Lovell's insurers.” (emphasis added)
“The starting point for any inquiry into the measure of damages which an injured plaintiff is entitled to recover is the recognition
that damages in the tort of negligence are purely compensatory. He should recover from the tortfeasor no more and no less than he
has lost. Difficult questions may arise when the plaintiff's injuries attract benefits from third parties. According to their nature these may
or may not be taken into account as reducing the tortfeasor's liability. The two well-established categories of receipt which areto be ignored in assessing damages are the fruits of insurance which the
plaintiff himself has provided against the contingency causing his injuries (which may or may not lead to a claim by the insurer
as subrogated to the
rights of the plaintiff) and the fruits of the benevolence of third parties motivated by sympathy for the plaintiff's misfortune.
The policy considerations which underlie these two apparent exceptions to the rule against double recovery are, I think, well understood:
see, for example, Parry v.Cleaver [1970] A.C. 1, 14 and Hussain v. New Taplow Paper Mills Ltd. [1988] A.C. 514, 528. But I find it difficult to see what considerations of public policy can justify a requirement that the tortfeasor himself should
compensate the plaintiff twice over for the self same loss. If the loss inquestion is a direct pecuniary loss (e.g. loss of wages),
Hussain's case is clear authority that the defendant employer, as the tortfeasor who makes good the loss either voluntarily or contractually,
thereby mitigates his liability in damages pro tanto. The Court of Appeal, in the judgment appealed from, readily accepted a number
of examples advanced in argument for the appellant defendant as showing that a tortfeasor may mitigate his liability by making good
in kind the physical damage which his tort has caused to the plaintiffs property. In a wide-ranging argument before your Lordships,
where many hypothetical examples were examined of gratuitous services rendered by a tortfeasor to an injured plaintiff in satisfaction
of a need occasioned by histon, Mr. McGregor, for the respondent plaintiff, was constrained to acceptas a general rule that the tortfeasor,
having provided those services, cannot also be held liable to the plaintiff in damages for their value. But he submitted that where
the tortfeasor is a relative or close friend of the plaintiff and gratuitously provides services of an intimate personal or domestic
character, he is required by law, as a narrow exception to the general rule, also to pay the plaintiff the value of those services.
The law with respect to the services of a third party who provides voluntary care for a tortuously injured plaintiff has developed
somewhat erratically in England. The voluntary carer has no cause of action of his ownagainst the tortfeasor. The justice of allowing the injured plaintiff to recoverthe value of the services so that he may recompense the voluntary carer has
been generally recognised, but there has been difficulty in articulating a consistent juridical principle to justify this result.
In Roach v. Yates [1938] 1 K.B. 256 the injured plaintiff needed to be cared for day and night and his wife and sister-in-law both gave up their employment to provide that care for him and together lost wages of £3 a week. A claim for the value of their services at £3 a week was included inthe special damages claimed and a similar claim made as an element in general damages related to future loss. The services were given voluntarily but the plaintiff was held entitled to recover in respect of them. Referring to the nursing services required by the plaintiff, Greer L.J. said, at p. 263:
"He can get those services, and perhaps get them better than in anyother way, from the attendance which is being given to him by hiswife and his sister-in-law; but he would naturally feel that he oughtto compensate them for what they have lost by giving up the work at which they were earning the sum of £3 a week. I think that Mr.Beyfus was right in saying that we must take into account, at any rate for the period during which the plaintiff may now be expected to live, the sum of £3 a week as the minimum expense which the plaintiff would have to incur in retaining the nursing services of his wife and his sister-in-law."
In Schneider v. Eisovitch [1960] 2 Q.B. 430, the plaintiff and her husband were involved in a road accident in France in which the plaintiff was injured and the husband killed.
The plaintiffs brother-in-law and his wife voluntarily flew out to France to assist the plaintiff back to England and to arrange
the return of the husband's body for burial. The plaintiff claimed their expenses as part of her damages. Paull J. said with respect
to this claim,
at p. 440:
"Before such a sum can be recovered the plaintiff must show first that the services rendered were reasonably necessary as a consequence
of the tortfeasor's tort; secondly, that the out-of-pocket expenses of thefriend or friends who rendered these services are reasonable,
bearing in mind all the circumstances including whether expenses would havebeen incurred had the friend or friends not assisted;
and, thirdly, that the plaintiff undertakes to pay the sum awarded to the friend or
friends."
In the event Paull J. held that these conditions were satisfied and that the plaintiff was entitled to recover. In Wattsonv. Port of London Authority [1969] 1 Lloyd's Rep. 95, the plaintiffs wife had for a period given up her work and consequently lost earnings in order to look after her injured husband. Megaw J. held that the wife's loss was properly included in the husband's damages. Referring to the fact that there had been no contract between husband and wife with respect toher services in caring for him, Megaw J. said, at p. 102:
"That is not how human beings work and it would, in my judgment - and I say this because I think it ought to be said - be a blot on
the law if the law were to be such that a wife who in these circumstances had held her husband to make a contract to repay her he
should recover damages for that amount; but if she behaves like an ordinary decent human being and does not put construction upon
the act of that service, there is financial disadvantage to the plaintiff as a result. In my judgment, this position is covered in
substance in the judgment of
Mr. Justice Paull in the case of Schneider v. Eisovitch [1960] 2 Q.B.430. The essence of the judgment appears at p. 440, and in this case I do not think it matters that there is no firm
undertaking on the part of the plaintiff that if he is awarded this sum ... he will repay that money to his wife."
In the cases of Cunningham v. Harrison [1973] Q.B. 942 and Donnellyv. Joyce [1973] EWCA Civ 2; [1974] Q.B. 454 judgments were delivered by different divisions ofthe Court of Appeal on successive days. In Cunningham the wife of aseverely disabled plaintiff, who had initially looked after him, had died beforethe trial. Lord Denning M.R. said, at pp. 951-952:
"Before dealing with [the claim for future nursing expenses] I would like to consider what the position would have been if the wife had not died and had continued to look after her husband, as she had been doing. The plaintiff's advisers seem to have thought that a husband could not claim for the nursing services rendered by a wife unless the husband was legally bound to pay her for them. So, on their advice on July 11, 1972, an agreement was signed whereby the husband agreed to pay his wife £2,000 per annum in respect of her nursing services. We were told that such advice is often given by counsel insuch cases as these when advising on evidence. I know the reason why such advice is given. It is because it has been said in some cases that a plaintiff can only recover for services rendered to him when he was legally liable to pay for them: see for instance Kirkham v.Boughey [1958] 2 Q.B. 338, 342 and Janney v. Gentry (1966) 110 S.J.408. But, I think that view is much too narrow. It seems to me that when a husband is grievously injured - and is entitled to damages –then it is only right and just that, if his wife renders services to him instead of a nurse, he should recover compensation for the value of the services that his wife has rendered. It should not be necessary to draw up a legal agreement for them. On recovering such an amount, the husband should hold it on trust for her and pay it over to her. She cannot herself sue the wrongdoer ... but she has rendered services necessitated by the wrong-doing, and should be compensated for it. If she had given up paid work to look after him, he would clearly have been entitled to recover on her behalf; because the family income would have dropped by so much: see Wattson v. Port of London Authority [1969] 1 Lloyd's Rep. 95, 102, per Megaw J. Even though she had not been doing paid work but only domestic duties in the house, nevertheless all extra attendance on him certainly calls for compensation."
In Donnelly v. Joyce, the injured plaintiff was a boy of six. His mother gave up her work for a period to provide necessary care for him and the disputed item in his claim related to the mother's loss of wages. The judgment of the court delivered by Megaw L.J. contains a lengthy review ofthe authorities, but the key passage relied on by the trial judge and the Court of Appeal in the instant case is at [1974] Q.B. 461-462 and reads as follows:
"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 plaintiffs loss. The question from what source the plaintiffs 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 plaintiffs 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. That, in our judgment, is the key to the problem. So far as the defendant is concerned, the loss is not someone else's loss. It is the plaintiff’s loss.
"Hence it does not matter, so far as the defendant's liability to the
plaintiff is concerned, whether the needs have been supplied by the plaintiff out of his own pocket or by a charitable contribution
to him from some other person whom we shall call the 'provider'; 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."
With respect, I do not find this reasoning convincing. I accept that the basis of a plaintiffs claim for damages may consist in his need for services but I cannot accept that the question from what source that need has been met is irrelevant. If an injured plaintiff is treated in hospital as a private patient he is entitled to recover the cost of that treatment. But if he receives free treatment under the National Health Service, his need has been met without cost to him and he cannot claim the cost of the treatment from the tortfeasor. So it cannot, I think, be right to say that in all cases the plaintiffs loss is "for the purpose of damages ... the proper and reasonable cost of supplying [his] needs".
In Scotland the law on this subject has developed differently. In Edgar v. Postmaster General 1965 S.L.T. 158 it was held by a majority of the Inner House of the Court of Session that the injured pursuer's averment that his accident had caused his wife to give up work to look after him and there by lose wages was irrelevant. Having pointed out that the wife, not being a party to the action, could not recover the loss, the Lord President (Lord Clyde) continued at p. 160:
"If, on the other hand, the averment is intended to form the basis for a claim for domestic assistance for which the pursuer would have had to pay if he had not been able to secure it gratuitously the claim is, in my opinion, an irrelevant one. It would have been another matter altogether if the pursuer had actually paid some third party, or had entered into a contract to pay some third party for this domestic assistance. It could then have formed a relevant item in his claim for damages. But if the assistance which he got was given gratuitously and there is no undertaking or understanding by him to pay for it (and that is the situation in the present case) then I am quite unable to see how he can claim to be reimbursed for a payment he has not and cannot be compelled to make. In Scotland, damages necessarily involves a loss either actual or prospective, and the plain fact of the matter is that the pursuer has sustained no such loss at all in regard to this item.” The difference in this regard between Scottish and English law was examined by the Scottish Law Commission in their report in 1978 (Scot. Law Com. No. 51). In paragraph 20 they adopted the view that "the value of the services of persons who have assisted the injured person should be recoverable by the latter in his action against the wrongdoer" but considered that "the principle should only apply as between members of the injured person's family group or circle". In paragraph 22 they criticised the reasoning used in the judgment of Megaw L.J. in Donnelly v. Joyce in the following terms:
"In cases where services have been rendered gratuitously to an injured person, it is artificial to regard that person as having suffered a net loss in the events which happened. The loss is in fact sustained by the person rendering the services, a point vividly illustrated in cases where he has lost earnings in the course of rendering those services. We suggest, therefore, that it is wrong in principle, in cases where services have been rendered gratuitously by another to an injured person, to regard the latter as having in fact suffered a net loss."
They concluded at paragraph 23:
"... that it would be right to devise an approach which will enable the injured person to recover in his own action the value of services which have been rendered to him by relatives but which would, at the same time, enable the relative to recover, if he so wished, the value of these services from the injured person."
The Commission's recommendations in this respect were implemented by Part II of the Administration of Justice Act 1982, which applies to damages for personal injuries in Scotland and which by section 8 provides:
"8-(l) Where necessary services have been rendered to the injured person by a relative in consequence of the injuries in question, then, unless the relative has expressly agreed in the knowledge that an action for damages has been raised or is in contemplation that no payment should be made in respect of those services, the responsible person shall be liable to pay to the injured person by way of damages such sum as represents reasonable remuneration for those services and repayment of reasonable expenses incurred in connection therewith.
"(2) The relative shall have no direct right of action in delict against the responsible person in respect of the services or expenses referred to in this section, but the injured person shall be under an obligation to account to the relative for any damages recovered from the responsible person under this section."An elaborate definition of "relative" in section 13(1), which I need not here set out, implements the Commission's recommendation that this provision should apply only if the person rendering the services and the injured person belong to the same "family group or circle".
Thus, in both England and Scotland the law now ensures that an injured plaintiff may recover the reasonable value of gratuitous services rendered to him by way of voluntary care by a member of his family. Differences between the English common law route and the Scottish statutory route to this conclusion are, I think, rarely likely to be of practical importance, since in most cases the sum recovered will simply go to swell the family income. But it is nevertheless important to recognise that the underlying rationale of the English law, as all the cases before Donnelly demonstrate, is to enable the voluntary carer to receive proper recompense for his or her services and I would think it appropriate for the House to take the opportunity so far as possible to bring the law of the two countries into accord by adopting the view of Lord Denning M.R. in Cunningham v. Harrison that in England the injured plaintiff who recovers damages under this head should hold them on trust for the voluntary carer. By concentrating on the plaintiff's need and the plaintiffs loss as the basis of an award in respect of voluntary care received by the plaintiff, the reasoning in Donnelly diverts attention from the award's central objective of compensating the voluntary carer. Once this is recognised it becomes evident that there can be no ground in public policy or otherwise for requiring the tortfeasor to pay to the plaintiff, in respect of the services which he himself has rendered, a sum of money which the plaintiff must then repay to him. If the present case had been brought in Scotland and the claim in respect of the tortfeasor's services made in reliance on section 8 of the Administration of Justice Act 1982, it would have been immediately obvious that such a claim was not sustainable.The case for the respondent plaintiff was argued in the Court of Appeal without reference to the circumstance that the defendant's liability was covered by insurance. But before your Lordships Mr. McGregor, recognising the difficulty of formulating any principle of public policy which could justify recovery against the tortfeasor who has to pay out of his own pocket, advanced the bold proposition that such a policy could be founded on the liability of insurers to meet the claim. Exploration of the implications of this proposition in argument revealed the many difficulties which it encounters. But I do not think it necessary to examine these in detail. The short answer, in my judgment, to Mr.McGregor's contention is that its acceptance would represent a novel and radical departure in the law of a kind which only the legislature may properly effect. At common law the circumstance that a defendant is contractually indemnified by a third party against a particular legal liability can have no relevance whatever to the measure of that liability. (emphasis added)
I add a short postscript with reference to a number of Australian authorities which were helpfully drawn to your Lordships' attention.
The decision of the High Court of Australia in Griffiths v. Kerkemeyer (1977) 139C.L.R. 161, adopts in substance what I may call the principle of Donnelly v. Joyce. Since then there has been a significant number of Australian decisions, both reported and unreported, rejecting claims by injured
plaintiffs to recover the value of gratuitous services rendered to them by defendants. The reported decisions to this effect by single
judges are: Gowling v. Mercantile Mutual Insurance Co. Ltd. and Gowling [1980] 24 S.A.S.R. 321; Jones v. Jones [1982] TASRp 26; [1982] Tas.R. 282; Gutkin v. Gutkin [1983] 2 Qd.R. 764; and Maanv.Westbrook [1988] 2 Qd.R. 267. To the like effect are the decisions of the Full Court of the Supreme Court of Western Australia in Snape v. Reid (1984) Aust. Torts Reports, 80-620; and of the Full Court of the Supreme Court of Tasmania in Motor Accidents Insurance Board v. Pulford (1993) Aust. TortsReports, 81-235. The only contrary decision is that of the Court of Appealof New South Wales in Lynch v. Lynch [1991] 25 N.S.W.L.R. 411. In thiscase the Court's reasoning was expressly related to the circumstance that the claim arose out of an accident which was the
subject of a particular statutory compulsory insurance scheme. I do not think it would be helpful to encumber this opinion with a
detailed examination of the case. I am content to say that I agree with the criticism of the decision by the Full Court of the Supreme
Court of Tasmania in Motor Accidents Insurance Board v. Pulford, who declined to follow it.
"The plaintiff said he was cared for by his wife after the accident. This care is likely to continue into the future. This is care over and above that which a wife would give to an otherwise healthy husband and I believe she should be compensated. As I have said elsewhere, the time for gratuitous care by relatives is long gone. It was nearly 8 years ago that the accident happened. I arrive at the appropriate value of compensation by taking $40.00 a week as the appropriate cost of care over those 8 years which computes to $40.00 x 52 x8 = $16,640.00. I make no allowance for future care because over time this need may dissipate."
'At the trial, the parties agreed on the cost of providing full-time home nursing care by non-medically trained person.'
So, in that case parties have been adequately informed of the need and they have also agreed to the cost of providing a commercial rate, which the court granted in appeal.
| | General Damages | $25,000 |
| | Interest on General Damages @ 7% for 3 years(as agreed by the parties from the date of writ to trial) | $ 4,200 |
| | Special Damages | $ 635 |
| | Interest on special damages @ 7% for 3 years and 6 months | $ 156 |
| | Past Economic Loss | $15,295 |
| | Future Medical Expenses | $ 3,000 |
| | Total | $48,286 |
Dated at Suva this 19th day of February, 2013.
.................................................
Master Deepthi Amaratunga
High Court, Suva
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