[Home] [Databases] [WorldLII] [Search] [Feedback] High Court of Australia

Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245 (8 March 1990)

CATCHWORDS

Compensation may be recovered in a claim under Lord Campbell's Act for lost domestic services which are not replaced at pecuniary cost.

Seymour v. British Paints (Australia) Pty. Ltd., (1967) Qd R 227 and Williams v. Fleming (Unreported; Supreme Court of Queensland (Full Court); 23 February 1979), overruled.

Tong v. Purdy (No. 2), [1941] VicLawRp 34; (1941) VLR 147; Cornish v. Watson, (1968) WAR 198; Naum v. Nominal Defendant, (1974) 2 NSWLR 14; Thompson v. Mandla, (1976) 2 NSWLR 307; Doody v. Federation Insurance Ltd. (1977), 16 SASR 173; Budget Rent-A-Car Pty.Ltd. v. Van Der Kemp,(1984) 3 NSWLR 303; Swan v. Williams (Demolition) Pty. Ltd. (1987), 9 NSWLR 172; Horton v. Byrne (1956) 30 ALJ 583 and Rowe v. Scanlan (1969) 1 NSWR 43, approved.

Griffith v. Kerkemeyer [1977] HCA 45; (1977), 139 CLR 161, considered.

Whether an intermediate court, such as the Full Court of a Supreme Court, should regard itself as bound by its own previous decisions, discussed.

Decision of the Supreme Court of Queensland (Full Court), reversed.

HEARING

DECISION

2. When a claim is made for the loss of the services which would or might have been provided by a deceased spouse, the entire family situation before the death must be compared with the entire family situation after the death. By that comparison, it is possible to ascertain the "balance of the loss" - on the one hand, the savings made by the plaintiffs in consequence of the death and their exemption from providing services to the deceased spouse; on the other, the benefits conferred on the plaintiffs by the deceased spouse - and the true nature and extent of the "injury resulting from (the) death to the parties". When that comparison is made and the "balance of the loss" is ascertained, evaluation of the loss can proceed.

3. An evaluation must be made not only by reference to the loss considered, so to speak, in isolation but also by reference to any effect of the loss on the plaintiff provided the effect is not too remote. Thus, in assessing damages for a tortiously inflicted personal injury, the court has regard to three commonly encountered sequelae to personal injury identified by Windeyer J. in Teubner v. Humble [1963] HCA 11; (1963) 108 CLR 491, at p 505:

" Broadly speaking there are, it seems to
me, three ways in which a personal injury
can give rise to damage: First, it may
destroy or diminish, permanently or for a
time, an existing capacity, mental or
physical: Secondly, it may create needs that
would not otherwise exist: Thirdly, it may
produce physical pain and suffering."

4. When a personal injury creates a need which can be met by the provision of services, the physical disability of the plaintiff not only occasions the need but is usually of such a kind that it precludes the plaintiff from satisfying it himself. Medical and nursing attention, rehabilitation services, or help in performing domestic chores are familiar examples. When a loss of services in a Lord Campbell's Act claim creates a need, however, the plaintiff can often satisfy the need himself. In either case the question may arise: should the tortfeasor be liable to pay for outside assistance to satisfy the need? That question usually requires an affirmative answer in answering a personal injury claim but the answer is likely to be more problematical in assessing a Lord Campbell's Act claim. Why the difference? Because often the plaintiffs in a Lord Campbell's Act claim can reasonably be expected so to adjust their lifestyles as to modify the need or to satisfy the need themselves, without significant depreciation of their lifestyles. That is not to deny the reality of the loss or of the need it creates, but an adjustment which can reasonably be expected and which allows the plaintiffs to modify the need or to satisfy their needs is an adjustment that the plaintiffs are bound to make to mitigate their loss. Reciprocally, the tortfeasor is liable to pay for outside assistance if, but only if, such assistance is reasonably necessary to satisfy the need occasioned by the loss. If it is not reasonably necessary to bring in outside assistance because the need can be met by the plaintiffs themselves, damages are limited to an allowance for the increased burdens (if any) assumed or to be assumed by the plaintiffs. If it is reasonably necessary for the plaintiffs to bring in outside assistance, the tortfeasor is liable to pay for that assistance. The test of reasonable necessity to satisfy the needs created by the loss draws upon contemporary social standards and expectations as well as the particular circumstances of the case.

5. It is as erroneous in principle as it is false in fact to treat the commercial cost of providing substitutionary services for the services lost as the invariable yardstick of the assessment. Frequently, it would be quite unreasonable to bring in outside assistance at commercial rates to perform substitutionary services for the deceased's family when those services can be performed by family members; frequently, it would be unreasonable to bring in outside assistance at commercial rates to provide the surviving spouse with the services which were provided by the deceased spouse for the benefit of them both. On the other hand, the tender ages of children, conditions of health or the demands of an outside occupation, or some other factor may make it reasonably necessary to bring in outside assistance even at commercial rates to provide services in substitution for all or some of the domestic services lost.

6. That is not to say that the liability of the defendant is necessarily determined by the cost to the plaintiffs of obtaining substitutionary services. Services may be provided by relatives or friends gratuitously or at small cost as a benevolent gesture to the family and, in such a case, it may be that the value of the services is to be assessed at a sum greater than the charge made to the family. For example, where the benevolent provider gives up his or her own employment to provide the plaintiffs with substitutionary services, the commercial cost of services of that kind or the income which the provider has lost may be an appropriate starting point in the assessment. However, the factors relevant to the reasonable necessity of bringing in outside help to provide substitutionary services include the actual cost of securing those services.

7. In my opinion, damages under Lord Campbell's Act in respect of the provision of substitutionary services are assessed according to the same principles as those which govern the assessment of damages in personal injury cases in respect of needed services. Those principles were stated by Gibbs J. in Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161, at pp 168-169:

"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."

8. The Full Court will assess damages for the net loss of services occasioned by the death of the deceased according to its view of the likely family history had the deceased not been killed and of the family history since her death. In the particular circumstances of this case, it is possible, but not inevitable, that the Court will make an assessment on a basis which will raise the question whether the receipt by the first appellant of a supporting parent's benefit should be deducted, in part or in whole, from the amount provisionally assessed. The question of deductibility of a supporting parent's benefit was advanced in argument before this Court as a question of principle but that question may not fall for consideration unless the basis adopted for provisionally assessing damages would yield compensation to Mr Van Nguyen for his own loss of earnings without taking account of his receipt of the benefit. It is premature to consider the question of deductibility in the absence of an assessment which raises that question. All that can properly be said is that a supporting parent's benefit is not within the categories of benefits which s.15C of the Common Law Practice Act 1867 (Q.) excludes from consideration and that, absent a contrary statutory provision, it would be wrong to award a surviving spouse full compensation for earnings lost by the assumption of domestic burdens without taking some account of statutory benefits to which the spouse is entitled by reason of his or her assumption of precisely those burdens.

9. I respectfully agree with the majority judgment as to the Full Court's practice in following its previous decisions.

10. I would allow the appeal with costs, set aside the orders of the Full Court of the Supreme Court of Queensland and remit the matter to that Court to rehear the appeal to that Court and to determine that appeal in accordance with this judgment. The costs of the proceedings in the Supreme Court will be in the discretion of the Full Court.

DEANE J. The facts and issues involved in this appeal and the background of decisions in the Supreme Court of Queensland in the present and earlier cases are set out in the joint judgment of Dawson, Toohey and McHugh JJ. I shall endeavour to avoid unnecessary repetition. On the question whether the Full Court of the Supreme Court is bound to follow and apply its own earlier decisions in the absence of some contrary decision of this Court, I agree with what is said in that joint judgment. There remains for consideration the question of the entitlement of the appellant husband and infant children to an award of compensation for the loss of the household services of the deceased as a wife and mother.

2. Lord Campbell's Act (the Fatal Accidents Act 1846 (U.K.): 9 & 10 Vict. c.93) introduced a new cause of action into the law of England. It was adopted in all the Australian colonies and, subject to procedural modifications and the exclusion of account being taken of certain payments in the assessment of damages, persists in Queensland in its original form (Common Law Practice Act 1867 (Q.), ss.12-15C). The statute did not impinge upon the vexed area of the common law in which, as a result of the continuing effect of outmoded notions of the status of women and the relationship between husband and wife, a husband is accorded the right to recover damages from a wrongdoer for loss of the "consortium" (including "servitium") of his incapacitated wife but a wife is denied any corresponding right to recover damages from a wrongdoer who has incapacitated her husband (see, e.g., Guy v. Livesey (1618) Cro Jac 501 (79 ER 428); Hyde v. Scyssor (1619) Cro Jac 538 (79 ER 462); Wright v. Cedzich [1930] HCA 4; (1930) 43 CLR 493, at pp 534-535; Best v. Samuel Fox & Co. Ltd. (1952) AC 716; and, for reference to some statutory modifications of the common law position, Fleming, The Law of Torts, 7th ed. (1987), p 624, and Suppl (1989), p 14). The right of action which Lord Campbell's Act created was in an area where the common law conferred no right of action at all, namely, where the injured person had died. In that area, as if to pile anomaly upon anomaly, the unprincipled "rule" in Baker v. Bolton [1808] EWHC J92 (KB); [1808] EWHC J92 (KB); (1808) 1 Camp 493 (170 ER 1033) to the effect that "the death of a human being could not be complained of as (a civil) injury" prevailed to preclude the right of a husband to sue for damages for loss of consortium and to produce, to that extent, equality between the position of husband and wife (see Admiralty Commissioners v. S.S. Amerika (1917) AC 38; Woolworths Ltd. v. Crotty [1942] HCA 35; (1942) 66 CLR 603; and, for helpful and thoughtful recent discussion, Swan v. Williams (Demolition) Pty. Ltd. (1987) 9 NSWLR 172, at pp 175-184, 190-191).

3. The right of action which Lord Campbell's Act created was neither worded in discriminatory terms nor confined by traditional notions of the content of the husband's "right" to the "consortium" or "servitium" of his wife. It is for the benefit of a family unit which includes parents and children as well as surviving spouse. The damages recoverable in such an action are "such damages as (the jury or judge) may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought". The amount of damages so recovered "shall be divided amongst the before- mentioned parties in such shares as the (jury or judge) ... shall find and direct". In these circumstances, there is no warrant for confining the damages recoverable in a Lord Campbell's Act action within the limits of the measure of damages applicable in an action where the injured person has not died. The measure of the damages recoverable in a Lord Campbell's Act action is that specified by the statute. It is such damage as is "proportioned" to that "injury". Not surprisingly, however, the breadth of the word "injury" and the vagueness of the word "proportioned" have combined to provide new fields for judicial exegesis.

4. The effect of the decided cases has been to define the "injury" for which damages can be recovered in a Lord Campbell's Act action in a way which excludes damages for some of the more imponderable aspects of the detriment which might be sustained on the death of a spouse, parent or child. The reason for this judicial restriction of the scope of the action was explained by Jeffrey J. in Naum v. Nominal Defendant (1974) 2 NSWLR 14, at p 16:

"The inexactitude of the statute's language
made the judges of a century ago fearful of
the liberties a jury might take with the
defendant's purse were their deliberations
not to be confined by limitations about which
the statute itself is quite silent. It was
Coleridge J.'s opinion in Blake v. Midland
Railway Co. ((1852) 18 QBD 93, at p 111
[1852] EngR 10; (118 ER 35, at p 42)), expressed,
interestingly enough, in a judgment in which
the sponsor of the Act through Parliament
concurred, that, if it permitted a
calculation by the jury other than of the
pecuniary loss sustained by members of the
family from the death of one of them, 'a
serious danger might arise of damages being
given to the ruin of defendants'."

5. The cases also establish that the "injury" or "pecuniary loss" for which damages can be recovered in a Lord Campbell's Act action is "net loss, on a balance of losses and gains ..." (Public Trustee v. Zoanetti [1945] HCA 26; (1945) 70 CLR 266, per Latham C.J. at p 271; and see also Lincoln v. Gravil [1954] HCA 24; (1954) 94 CLR 430, at p 441). Dixon J. summarized the position (Zoanetti, at pp 276- 277) as follows:

"... in ascertaining the pecuniary loss
resulting from (the) death (of the deceased)
there must be taken into consideration, on
the one side, the reasonable expectations of
benefit upon which the claimant would have
been entitled to rely, had his life not been
brought to an end, and, on the other side,
the pecuniary benefits, arising on his death,
to which the claimant had (scil. "has") a
reasonable expectation, whether as of right
or otherwise."

6. The word "pecuniary" in the above quotations is not used in a narrow or technical sense. It is used in conjunction with "loss" or "gain" to connote the loss or gain of "material" benefits as distinct from emotional or non-material benefit such as love or companionship. Again, to quote from Dixon J.'s judgment in Zoanetti (at p 279):

"'The basis' (of the action) 'is not what
has been called solatium, that is to say,
damages given for injured feelings or on the
ground of sentiment, but damages based on
compensation for a pecuniary loss': per Lord
Haldane, Taff Vale Railway Co. v. Jenkins
((1913) AC 1, at p 4). The pecuniary loss
to which the damages are confined consists
in the loss of material benefits or of the
reasonable prospect of material benefits
which depended on the continuance of the life
of the deceased. What must be ascertained is
whether any and what loss has been sustained
by the relatives of the deceased after
comparing the material benefits depending
upon his life with any material gains
accruing from his death."

7. It has long been recognized that the loss of gratuitous domestic services, which are replaced or will be replaced at pecuniary cost, may provide a basis for compensation under Lord Campbell's Act if the circumstances are such that "there was a reasonable prospect of (the services) being rendered freely in the future but for the death" (Berry v. Humm & Co. (1915) 1 KB 627, per Scrutton J. at p 631; and see also, e.g., Feay v. Barnwell (1938) 1 All ER 31; Marsh v. Absolum (1940) NZLR 448; Hine v. O'Connor (1951) SASR 1; O'Connor v. Lloyd (1962) WAR 37; Price V. Girle (1966) QWN 50). The judgments in most, if not all, of those cases were, however, worded in terms that suggested that the damages awarded were, in the words of Scrutton J. (Berry v. Humm & Co., at p 631), for the actual past and future "monetary loss incurred by replacing (the lost) services" (see, to the same effect, Hine v. O'Connor, per Abbott J. at p 12). In Seymour v. British Paints (Australia) Pty. Limited (1967) Qd R 227, the Full Court of the Supreme Court of Queensland (Wanstall and Douglas JJ.; Gibbs J. dissenting) held that damages for the loss of such services which would have been rendered by a deceased wife could not be recovered in a Lord Campbell's Act case where the evidence failed to show "that expense has been incurred or is likely to be incurred by the widower in employing a servant to keep house for him, or to come by the day and clean and wash and iron, or in having his washing done at a laundry or his meals prepared by a caterer" (per Wanstall J. at p 228). The basis of the majority decision was that, in circumstances where there was "no prospect of the (claimant's) incurring expense in employing a housekeeper", it was "impossible to quantify as 'a hard matter of pounds, shillings, and pence' the value to him of future domestic services which his wife may have performed if she had survived" (ibid., at p 227). Seymour has not, however, been followed in other jurisdictions in this country (see, e.g., Naum v. Nominal Defendant; Cornish v. Watson (1968) WAR 198; Thompson v. Mandla (1976) 2 NSWLR 307; Budget Rent-A-Car P/L v. Van Der Kemp (1984) 3 NSWLR 303; Swan v. Williams (Demolitions) Pty. Ltd.; Doody v. Federation Insurance (1977) 16 SASR 173; and note the earlier case of Tong v. Purdy (No. 2) [1941] VicLawRp 34; (1941) VLR 147 referred to by Gibbs J. in Seymour, at p 230). The approach which it reflects does not, in my view, lie well with that accepted by this Court in Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 where it was held that the fact that financial expenditure was not and will not be incurred in obtaining domestic services does not mean that it is impossible to assess monetary compensation for the need of such service. It is true that the assessment of the damages "proportioned" to the injury sustained may be more difficult in a case where the services have not been and will not be replaced than in a case where the actual cost of replacement services has been incurred and is available to assist in determining the value of the lost services. In both cases, however, the injury is the same. It is the loss of the services: "the widower, who does without and fends for himself, suffers loss as much as the widower who replaces the lost services with those of a housekeeper" (Budget Rent-A-Car P/L v. Van Der Kemp, per McHugh J.A at p 309; and see, generally, Wilson v. Rutter (1955) 73 WN (N.S.W.) 294, at p 298; Rowe v. Scanlan (1969) 1 NSWR 43, at p 45). That loss is a loss of a material benefit which is capable of being valued in monetary terms. In that regard, the reasoning of Gibbs J. in the following extract from his Honour's judgment in Seymour (at p 230) must, in my view, be accepted as correct:

"When it is held that a husband who has been
deprived of his wife's services by her death
is entitled to damages, that can only be
because her services were a benefit reducible
to money value. Domestic services do in fact
have a pecuniary value which is capable of
assessment, and the cases to which I have
referred must, in my opinion, rest on the
ground that the deprivation of services
is just as much a pecuniary loss as the
deprivation of income or of contributions of
food and clothing. The damages have to be
assessed as at the date of the wife's death
and at that date the husband had lost his
wife's services and that was a pecuniary loss
because the services had a pecuniary value.
Evidence of subsequent events is of course
admissible to show what the facts in reality
were and to render it unnecessary for the
court to speculate about probabilities when
the facts are known: Williamson v. John I.
Thornycroft & Co. (1940) 2 KB 658; Willis
v. The Commonwealth [1946] HCA 22; (1946) 73 CLR 105.
However, the evidence that the husband does
not intend to replace the wife's services
does not mean that they had no value. It
merely shows that he is prepared to use his
own time and labour instead of expending
money in replacing the services. If the wife
had contributed, not services, but additional
foodstuffs for her husband's meals, it would
seem to me that his damages should be
assessed having regard to the pecuniary value
of the contributions of which the death had
deprived him, even if it appeared that he did
not intend to supply himself with the
additional foodstuffs, but intended to use
his damages, when he obtained them, in some
other way. The use to which he proposes to
put his damages is irrelevant to their
assessment (cf. Blundell v. Musgrave [1956] HCA 66; (1956)
96 CLR 73, at p 95 per Fullagar J.)."

8. Accordingly, Seymour v. British Paints and Williams v. Fleming (unreported, Full Court of Supreme Court of Queensland, 23 February 1979), which purportedly applied Seymour, must be overruled to the extent that they stand as authorities precluding recovery of compensation for lost domestic services which are not replaced at pecuniary cost. In referring to "domestic services", I intend to include ordinary housekeeping, house maintenance and gardening services and any additional material services, such as hairdressing, dressmaking or teaching, which one spouse may render to the other spouse or to her or his children.

9. That is not to say that a surviving spouse, child or parent is automatically entitled to the benefit of a substantial award of damages against the wrongdoer in every case where a deceased provided, and was likely to continue to provide, gratuitous and substantial domestic services. Nor does it necessarily mean that any of the claimants in Seymour v. British Paints and Williams v. Fleming was entitled to a substantial award of damages in circumstances where they were, apparently, all able-bodied and capable of looking after themselves. As has been seen, it is settled that the "injury" or "pecuniary loss" for which damages can be recovered is net loss, on a balance of losses and gains. Commonly, in a modern marital relationship in this country, the spouses share, to a greater or lesser extent, the necessary domestic chores and responsibilities. When one spouse dies, the assessment of the value of the lost benefit of the gratuitous services of the deceased as spouse or homemaker must take account of the fact that those services were, at least in part, for the benefit of the deceased as well as for the benefit of the surviving spouse and of the fact that the surviving spouse is relieved of the burden of rendering gratuitous services for the deceased. The injury constituted by the loss may be reduced by the prospect of remarriage. Against the value of the lost services, there must be debited any financial benefit accruing to the surviving spouse by reason of the death. Where the surviving spouse was the sole bread-winner, an award of damages for loss of gratuitous services will only be justified if the value of those services exceeds the benefit of being relieved of any obligation of financial support.

10. Moreover, the entitlement of a relative in a Lord Campbell's Act action is to such damages as are "proportioned" to the injury sustained by reason of the death. The word "proportioned" plainly introduces an element of what is reasonable in the circumstances. It follows that the mere fact that a deceased would, if he or she had lived, probably have provided gratuitous domestic services as a spouse, parent or child does not mean that the surviving relative is automatically entitled to damages calculated by reference to what it would cost in some actual or hypothetical marketplace to acquire all of the services which he or she would probably have enjoyed but for the death. The notion of what represents reasonable or proportionate compensation must take account of the need for the relevant services in the circumstances of the particular case. So to say is not to confuse the loss of services with the need for them. It is simply to recognize that it would be unreal to seek to ascertain the damages "proportioned" to the "injury" sustained by a particular claimant by way of loss of services without taking account of whether there was a reasonable need of the services or, in an extreme case, whether the applicant might even be properly seen as better off without them. Put differently, the damages "proportioned" to the "injury" which a particular claimant sustains by way of lost gratuitous services cannot be realistically assessed without regard being paid to the question whether the particular services were superfluous to the reasonable needs of the particular claimant. In a context where the ultimate burden of liability to pay damages under a Lord Campbell's Act action will ordinarily be cast upon the community generally through the direct and indirect cost of insurance premiums, that question must be answered by reference to current local standards and values. For example, it could scarcely be accepted as reasonable according to present-day standards and values in this country that the circumstance that it was probable that an able-bodied twenty-year-old man, who was unlikely to remarry or marry, would have received gratuitous and complete household care and services from a self-supporting wife or mother for a period of many years should create a situation where domestic inaction was rewarded by what represented, for practical purposes, the objective value of the services of a full-time housekeeper for the foreseeable future. In a modern context, the circumstances in which it will be reasonable for substantial compensation to be awarded to an adult on the basis that he or she is to be compensated for the loss of the services of a full- time or part-time daily housekeeper, as distinct from occasional domestic help, will, in my view, ordinarily be limited to those cases in which some special need can be identified, such as infant children, old age, injury, infirmity or the unusual demands of a particular occupation. The most obvious of such cases of special need is a case where the surviving spouse is left not only to look after his or her own needs but must assume sole responsibility for the care of infant children. The present is such a case.

11. It follows that the appellants, being the surviving spouse and infant children of the deceased, were not precluded from obtaining an award of compensation for the loss of domestic services of the deceased by reason of the fact that those services had not been and were not likely to be replaced by hired help. That being so, the appeal must be allowed. I agree with Dawson, Toohey and McHugh JJ. that the appropriate course to be followed in all the circumstances is to remit the matter to the Full Court of the Supreme Court so that that court can review the assessment of damages made by the learned master freed from the authority of Seymour v. British Paints and the subsequent case of Williams v. Fleming. As Thomas J. demonstrates in his judgment in the Full Court, the assessment of damages in circumstances where neither the deceased nor the surviving spouse was in employment and where the household income was essentially derived from social service benefits gives rise to some practical questions which are not free of all difficulty. This Court has not, however, heard argument on those questions and it is appropriate that they be left for the consideration of the Full Court.

DAWSON, TOOHEY AND McHUGH JJ. This action was brought under the Queensland equivalent of Lord Campbell's Act, namely, ss.12 to 15C of the Common Law Practice Act 1867 (Q.). The plaintiffs claimed damages arising from the death of Nu Thi Nguyen. The deceased died as the result of injuries received when a motor car, driven by the defendant, in which she was a passenger, left the road and collided with a power pole. The plaintiffs were the husband of the deceased and their two children, born on 20 May 1976 and 8 September 1980 respectively. Negligence was admitted and the action proceeded as an assessment of damages before a Master of the Supreme Court. Damages were awarded in the sum of $179,573 of which the sums of $28,000 and $34,000 were apportioned to the two children, the second and third plaintiffs, respectively. The total sum was arrived at as an assessment of the value of the housekeeping services lost to the family as a result of the death of the deceased, to cover a period ending upon the younger child attaining the age of 16 years.

2. In fact the husband has not engaged anyone to perform housekeeping services for himself and the two children, nor does he intend to. Apart from a period when a relative helped out temporarily, the husband has himself performed the functions which had previously been performed by his wife. The family, who are of Vietnamese origin, arrived in Australia in November 1980. The wife was killed in July 1981. The husband had obtained work as a labourer at a brickworks for a short time but, apart from that, has not worked since his arrival in Australia. The wife never worked. The family has depended on unemployment benefits and, after the death of the wife, a supporting parent's benefit.

3. The defendant appealed against the award of damages to the Full Court. The point taken was that, save for a small amount of approximately $6,000, the plaintiffs were not entitled to any recompense for the loss of the wife's housekeeping services because those services have been and will be performed by the husband at no cost. This point was upheld by a majority in the Full Court and the damages were reduced to the sum of $6,079, apportioned as to $1,079 and $2,000 to the second and third plaintiffs respectively.

4. The majority applied the previous decisions of the Full Court in Seymour v. British Paints (Australia) Pty. Limited (1967) Qd R 227 and in Williams v. Fleming (unreported, 23 February 1979). In Seymour, a husband's claim under the Common Law Practice Act for damages for the loss of his wife's domestic services was rejected because the husband did not, and did not intend to, replace his wife by employing a housekeeper. It was held (Wanstall and Douglas JJ.; Gibbs J. dissenting) that:

"... there being no prospect of the
appellant's incurring expense in employing a
housekeeper, it is impossible to quantify as
'a hard matter of pounds, shillings, and
pence' the value to him of future domestic
services which his wife may have performed if
she had survived." (per Wanstall J. at
p 227)

"There is no question here of what may be
called sentimental damage, bereavement or
pain and suffering. It is a hard matter of
pounds, shillings and pence, subject to the
element of reasonable future probabilities."

5. But as Gibbs J. pointed out in dissent, domestic services have a pecuniary value which is capable of assessment and deprivation of those services "is just as much a pecuniary loss as the deprivation of income or of contributions of food and clothing" (at p 230). He went on to make it clear that the fact that a husband does not intend to replace the services "does not mean that they had no value. It merely shows that he is prepared to use his own time and labour instead of expending money in replacing the services." (at p 230)

6. Subsequently, at first instance in Williams v. Fleming (unreported, 21 March 1978), Connolly J. purported to follow Seymour in refusing to award damages to a husband and his two daughters under Lord Campbell's Act for the loss of the wife's domestic services. The Full Court upheld the decision of Connolly J., merely endorsing his reasoning. Although Connolly J. purported to follow Seymour, it would seem that he regarded that case as turning upon somewhat different considerations from those upon which it was actually decided.

7. In Williams v. Fleming the two daughters were, apparently, of such an age as to be able to care for themselves as well as for their father. Connolly J. observed that there was no suggestion that it was necessary to replace the wife's services. He continued (at pp 4-5):

"By this I mean that the male plaintiff is in
good health and is capable of caring for
himself. It is not a case of an invalid
husband who is forced to turn to others, and
it is not a case where there are young
children whom a father cannot care for
without bringing in outside help. Since the
death of Mrs Williams, Ruth and subsequently
Margaret, have borne the brunt of running the
household, but they were, after all, grown
women and living in it and this seems to me
to be a perfectly natural thing for them to
have done. Of course in the normal course of
events Margaret may be expected to leave home
at some time in the future but there was no
suggestion by the plaintiff that he would
then be forced to obtain the services of a
housekeeper. In this state of the evidence
it seems to me that the decision in Seymour
v. British Paints (Australia) Pty. Ltd. ...
governs the situation."

"As I read that decision of the Full Court,
it is authority for the proposition that
it is not the value of a deceased wife's
services which is allowable as damages in an
action under Lord Campbell's Act, but the
need to replace them measured by the cost,
incurred or likely to be incurred, of doing
so."

8. Seymour did not go as far as that, but it had been submitted to Connolly J. that the case of Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161, which had been decided subsequently by this Court (Gibbs, Stephen and Mason JJ.), was inconsistent with Seymour. Connolly J. appears to have been prompted by this submission to express the effect of Seymour as he did in order to support his conclusion that it was consistent with Griffiths v. Kerkemeyer. He undertook this exercise expressing doubts whether Griffiths v. Kerkemeyer, being a common law action for damages for personal injuries, had any direct application to a claim under Lord Campbell's Act. As will appear, we think that his doubts were well-founded.

9. In Griffiths v. Kerkemeyer it was held that the plaintiff, who was rendered a quadriplegic as the result of the negligence of the defendant, was entitled to recover by way of damages a sum representing the value of nursing and other services gratuitously provided for him in the past and to be provided in the future by his fiancee and members of his family. In reaching its conclusion, the Court followed the decision of the Court of Appeal in Donnelly v. Joyce [1973] EWCA Civ 2; (1974) QB 454, and viewed the damages in question as damages for one component of the plaintiff's loss occasioned by his physical disability. The disability gave rise to the need for nursing and other care. The need was met by the services gratuitously provided. The value or cost of those services was, in the circumstances, an appropriate means of quantifying that aspect of the plaintiff's loss which was represented by the need. As the need represented the loss, the value of the services required to fulfil that need served as a means of assessing the loss. The fact that there were persons, prompted by motives of concern for the plaintiff, who were prepared to provide the services gratuitously was, it was held, not something which should diminish the damages to the advantage of the defendant. It was only right in the circumstances that the plaintiff should benefit rather than the wrongdoer whose negligence was the cause of the plaintiff's loss.

10. This approach was a divergence from the view previously taken that expenses in an action for damages for personal injuries could only be recovered where there was, or would be, a legal obligation to pay them. Gibbs J. elaborated the new approach at pp 168-169:

"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."

11. The claim in Griffiths v. Kerkemeyer was, as we have said, a claim for damages for personal injuries. It was of a different nature from a claim under Lord Campbell's Act, which is a claim for the loss of a material benefit. The plaintiff's loss in Griffiths v. Kerkemeyer was caused by his physical disability. It was in accordance with accepted principle to assess part of that loss by reference to the cost of the services which were required to satisfy the need to which the disability gave rise. What was novel about the decision was the application of that principle even though the plaintiff had not borne and would not bear the cost of the services. The novelty was not in valuing the necessary services, both retrospectively and prospectively; there was nothing new in that. The novelty lay in giving the plaintiff the cost of those services even though he had not paid, and would not pay, for them, in order that he, and not the defendant, should reap the benefit.

12. By way of contrast, a claim for damages under Lord Campbell's Act is a claim for recompense for some tangible advantage which has been lost by reason of the death of the deceased. As Gibbs J. observed in Ruby v. Marsh [1975] HCA 32; (1975) 132 CLR 642, at p 658, in relation to a claim for damages sustained through the death of a husband and father, the loss occurred "at the moment of death" and:

"The expectation of future benefit was
destroyed by the death and no subsequent
event can increase or diminish the extent of
the pecuniary loss then suffered, although it
is true that subsequent events may be
relevant to the assessment of damages in so
far as they render it unnecessary for the
court to speculate about possibilities that
may have existed at the date of death when
the facts themselves have become known."

13. In the present case the plaintiffs claimed for "loss of the deceased's domestic capacity being the value of services such as child care, cooking, washing, ironing and cleaning". There may be other services previously performed by a deceased wife and mother such as tuition in schooling. She may also have performed services by the exercise of skills such as dressmaking. These too may represent a tangible advantage lost by death, which loss may be compensated in damages. There is no reason why "services" in this context should be given an unduly narrow construction, as if a wife were no more than a housekeeper: see Doody v. Federation Insurance (1977) 16 SASR 173; Fisher v. Smithson (1977) 17 SASR 223; Regan v. Williamson (1976) 1 WLR 305; (1976) 2 All ER 241; Mehmet v. Perry (1977) 2 All ER 529. The evidence may justify only a small amount by way of damages or it may justify a large amount. The result will depend upon the facts established before the court. To borrow the illustration offered by Ritchie J. in Vana v. Tosta (1967) 66 DLR (2d) 97, at pp 110-111, if a wife or mother was so physically or mentally incapacitated as to have been unable to play any useful part in the lives of the family, there may be no resulting pecuniary loss. Whatever the circumstances, compensation "should represent the balance of the loss, reduced to terms of money, which the deceased's relatives incur in consequence of (her) death after deducting the pecuniary gains which on the other hand accrue to them from that event": Horton v. Byrne (1956) 30 ALJ 583, at p 585.

14. Griffiths v. Kerkemeyer has nothing to say about a claim under Lord Campbell's Act for damages for the loss of domestic services. As we have said, such a claim is not related to need. A husband claiming for the loss of housekeeping services by reason of the death of his wife may have no need of those services in that he may be able to perform them himself. But if he has suffered the loss he is entitled to recover for it and, as Gibbs J. pointed out in Seymour, at p 230, it does not matter whether he intends to use the damages to replace the services or not. As Jeffrey J. observed in Naum v. Nominal Defendant (1974) 2 NSWLR 14, at p 16, the view that a widower should not recover damages where he replaces his wife's services himself:

"... fails ... to identify the loss in a case
such as this for which damages are to be a
compensation. A widower who loses the wife
who looked after him suffers loss when he
thereafter does without and fends for himself
as much as such a widower who incurs expense
by replacing the lost services with those of
a housekeeper. The loss of the former may
be less easy to compute, but a loss it is
nevertheless. It is not the payment to a
housekeeper which constitutes the loss: that
is merely some evidence relevant to finding
the financial measure of the deprivation
which each of the supposed widowers has
equally suffered. To regard the expenditure
of money on such a replacement as a condition
of the existence of a loss suffered by the
widower which is capable of being regarded
as a pecuniary loss is, in the apt words of
Sugerman J. in Wilson v. Rutter ((1955) 73
WN (N.S.W.) 294, at p 298), 'to mistake the
measuring rod for the thing to be measured.'"

15. In evaluating the loss in these circumstances, "(c)ompensation for the loss of a wife's gratuitously rendered domestic services should not be confused with the actual cost to the bereaved husband (of) providing substitute services. This no doubt affords a guide to the amount but the actual expenses of the plaintiff for a limited period are not necessarily its measure": per Sugerman J.A in Rowe v. Scanlan (1969) 1 NSWR 43, at p 45. In practice evidence is often led of the cost of engaging domestic help between the date of death and the hearing of the action: see, for instance, Budget Rent-A-Car P/L v. Van Der Kemp (1984) 3 NSWLR 303, at p 306. But the damages to be assessed are those suffered by the plaintiff and cannot always be equated with the cost of such help. The services formerly rendered by a deceased wife may not be capable of being reproduced faithfully by services which are commercially available and the scope and cost of the only services commercially available may be disproportionate in comparison with the scope and value of the services which were actually provided by the deceased wife. In circumstances such as that it will not be reasonable to regard the cost of substitute services as any more than a starting point in assessing a plaintiff's loss. Indeed, in cases where the disproportion is severe, the cost of commercially available services may offer no real guide at all. It must always be borne in mind that the damages to be assessed are those suffered by the plaintiff by reason of the death alone.

16. Where the services are likely to be replaced as a result of remarriage, the reasonable prospect of that remarriage will serve to reduce the compensation to which a plaintiff will be entitled, not because the plaintiff's need for the services will then be satisfied, but because the plaintiff's loss is thereby directly reduced. The prospect of remarriage has always been regarded in claims under Lord Campbell's Act as providing a gain to the husband in the form of a revival of the capacity to marry. It is something which he would not have had, if his wife had not died: Carroll v. Purcell [1961] HCA 81; (1961) 107 CLR 73, at p 79. In some families, the children might reasonably have been expected in the course of time to have taken up, to a greater or lesser extent, the household duties previously performed by a parent. In that event, the loss incurred by reason of the death of that parent is the less. Of course, if the children take up the household duties, not in the ordinary course of events, but only because of the death of the parent, that will not reduce the total loss and it is irrelevant that the services do not need to be replaced by someone outside the household.

17. Although the question must always be "what loss the claimant has in fact sustained by the death" (Baker v. Dalgleish Steam Shipping Co. (1922) 1 KB 361, at p 372), courts have been reluctant to conclude that where someone outside the immediate family voluntarily takes over the care of the household, especially the care of infant children, a deduction should be made from the assessment of damages due to a plaintiff, and reluctant to recognise that the loss suffered by a plaintiff is thereby reduced. The reasoning behind this reluctance has taken a variety of forms. In Hay v. Hughes [1974] EWCA Civ 9; (1975) QB 790, the grandmother of two children assumed their care upon the death of their mother, and the Court of Appeal held (at p 809) that the grandmother's services should be ignored in calculating the loss suffered by the children on the basis that:

"At the time of their mother's death it was
anyone's guess what would happen to them and
the defendant had not discharged the onus of
establishing that at that time there was a
reasonable expectation that the grandmother
would act as she subsequently did."

"The loss resulting from the death is one
thing; the steps which may be taken as a
result of spontaneous individual volition
by one, two or three uncles or relatives
or friends ... to alleviate the loss so
resulting are quite different. ... It would
to my mind be quite odious if a court had to
assess what benefits had accrued, or were
likely to accrue, to a victim of a tragedy
from such motives."

"'In your own interests you must stay away.
You must not expect us to befriend you or
look after you or help you in any way,
because if we do it will undermine your legal
rights.' ... I found myself wondering what
would have been the legal position if having
heard the argument (the beneficiary's uncle)
had come back to the witness box and said:
'From now on my door is closed to (the
beneficiary). I see now I have done her
damage by befriending her and taking her into
my family and home and treating her as my own
child. But if I resile before it is too late
I can restore her to the position she had
before of having a claim in law against those
responsible at law for the death of her
father. That I now do by casting her out
from my home and family: fiat justitia.'"

"In cases where an orphan has been taken
in by a close relative there has been a
general, though not universal, reluctance to
say either that the orphan has suffered no
loss or has acquired a benefit. The logical
reason for not saying 'no loss' is that no
services can really replace the services of a
mother (I repeat that the loss is one of
actual services, not of love)."

18. Whatever be the true basis of the reluctance - and it may be partly the belief that voluntary unsolicited assistance cannot be permanently relied upon - it has been accepted that this form of assistance should not be brought into account in relief of the wrongdoer. But these are all questions of the extent of the loss suffered and are different questions from those raised in Griffiths v. Kerkemeyer where the problem was not so much the extent of the loss as its quantification by reference to the need for services to which the loss gave rise in circumstances where the services are provided without cost to the plaintiff.

19. The Full Court in the present case were unanimously of the view that Seymour was wrongly decided. They were correct in that view. Nevertheless, the majority applied Seymour and Williams v. Fleming, following what was said to be the prevailing practice in Queensland whereby the Full Court regards itself as bound by its own previous decisions. Authority in Queensland upon the point is sparse and not altogether consistent. Perhaps the most authoritative statement is to be found in Reg. v. Gassman (1961) Qd R 381 where the Court of Criminal Appeal held that it was not free to depart from a previous decision. Mack J. said, at pp 384-385:

"There does not seem to me to be any
reason why the rule of stare decisis should
not be the same for the Court of Criminal
Appeal as for the Full Court.
The cases in Queensland appeal courts
show that the occasions on which previous
decisions will not be followed are limited to
decisions pronounced per incuriam and those
in conflict with higher authority."

20. The extent to which the Full Court of the Supreme Court of a State regards itself as free to depart from its own previous decisions must be a matter of practice for the court to determine for itself. An example of such a determination is the Practice Statement of the House of Lords in 1966: Practice Statement (Judicial Precedent) (1966) 1 WLR 1234. The arguments in favour of certainty and against rigidity have been rehearsed on numerous occasions and no purpose is to be served by repeating them here: see, e.g., Australian Agricultural Co. v. Federated Engine-Drivers and Firemen's Association of Australasia [1913] HCA 41; (1913) 17 CLR 261, per Isaacs J. at pp 274-279; Attorney-General for N.S.W. v. Perpetual Trustee Co. (Ltd.) [1952] HCA 2; (1952) 85 CLR 237, per Dixon J. at pp 243-244. It should be observed, however, that neither the Court of Appeal in New South Wales nor the Full Courts in Victoria and South Australia regard themselves as strictly bound by their previous decisions: see Bridges v. Bridges and Hooper (1944) 45 SR (N.S.W.) 164; Richardson v. Mayer (1964-5) NSWR 105; Bennett & Wood Ltd. v. Orange C.C. (1967) 1 NSWR 502; Flanagan v. H.C. Buckman & Son (1972) 2 NSWLR 761; Forster v. Forster [1907] VicLawRp 31; (1907) VLR 159; Jenerce v. Pope (1971) 1 SASR 204; Raynal v. Samuels (1974) 9 SASR 264; Reg. v. Barnes (1978) 20 SASR 1. There is no reason to think that the practice in Tasmania is any different, but in The Transport Trading and Agency Co. of W.A Ltd. v. Smith (1906) 8 WAR 33 there was the suggestion of a contrary practice in Western Australia. In Victoria a procedure is adopted whereby a Full Bench of five or more judges is convened if a decision of a Full Court of three judges is to be reviewed: see Kidd, "Stare Decisis in Intermediate Appellate Courts", (1978) 52 Australian Law Journal 274. The Full Court of the Federal Court will depart from a previous decision if convinced that it is wrong: Chamberlain v. The Queen [1983] FCA 78; (1983) 72 FLR 1, at pp 8-9; [1983] FCA 78; 46 ALR 493, at p 498.

21. Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predicability of the law: see Queensland v. The Commonwealth [1977] HCA 60; (1977) 139 CLR 585, per Aickin J. at pp 620 et seq.

22. This Court has never regarded itself as bound by its own decisions, which is all the more appropriate now that it is a court of last resort for all purposes. There is a point of view that different considerations should govern the situation of an intermediate court of appeal: see Young v. Bristol Aeroplane Co. Ltd. (1944) KB 718; Davis v. Johnson [1978] UKHL 1; (1979) AC 264; Miliangos v. Frank (Textiles) Ltd. (1976) AC 443. But even if that view were correct, now that appeals to the High Court are by special leave only, the appeal courts of the Supreme Courts of the States and of the Federal Court are in many instances courts of last resort for all practical purposes. There is no equivalent of s.12 of the Administration of Justice Act 1969 (U.K.) to authorize "leap-frog" appeals which would by-pass those courts as the Court of Appeal may be by-passed in the United Kingdom. See, however, Sanofi v. Parke Davis Pty. Ltd. (No.1) [1982] HCA 9; (1982) 149 CLR 147. In these circumstances, it would seem inappropriate that the appeal courts of the Supreme Courts and of the Federal Court should regard themselves as strictly bound by their own previous decisions. In cases where an appeal is not available or is not taken to this Court, rigid adherence to precedent is likely on occasions to perpetuate error without, as experience has shown, significantly increasing the corresponding advantage of certainty.

23. For the reasons which we have given, both Seymour and Williams v. Fleming should be overruled. Since it does not appear that the members of the Full Court accepted the assessment of damages made by the Master, apart from the fact that it was made in disregard of those decisions, it is appropriate that this matter should be remitted to the Full Court for reconsideration in accordance with these reasons, upon the basis that Seymour and Williams v. Fleming no longer represent the law in Queensland. The appeal should be allowed and the matter remitted to the Full Court of the Supreme Court for this purpose.

ORDER

Set aside the orders of the Full Court of the Supreme Court of Queensland and order that the matter be remitted to that Court for further hearing and determination in accordance with the judgment of this Court.

Order that the costs of all proceedings in the Supreme Court be in the discretion of the Full Court.