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High Court of Australia |
THE NATIONAL INSURANCE CO. OF NEW ZEALAND LTD. v. ESPAGNE [1961] HCA 15; (1961) 105 CLR 569
Damages
High Court of Australia
Dixon C.J.(1), McTiernan(2), Fullagar(3), Menzies(4) and Windeyer(5) JJ.
CATCHWORDS
Damages - Action for personal injuries caused by negligence - Matters to be considered in reduction of damages - Invalid pension - Awarded for permanent blindness occasioned by negligence - Pension to be disregarded in assessment of damages - Social Services Act 1947-1957 (Cth), Pt. III, s. 25.
HEARING
Sydney, 1960, September 1, 2; 1961, April 6. 6:4:1961DECISION
1961, April 6.2. It is complained that the damages are excessive. The appellant says that in any view 23,000 pounds is more than commensurate with the injury but he also says, and this is the matter to be first considered, that an invalid pension under the Social Services Act 1947-1957 (Cth) was after the accident awarded to the plaintiff in respect of his condition on the footing of total blindness and that Stanley J. had excluded the pension from his consideration as a factor mitigating damages and was in error in doing so. (at p571)
3. I am of opinion that Stanley J. was right in disregarding the invalid pension and refusing to treat it as a matter going to the reduction of damages whether in its future operation or in its operation up to the date of the trial. I base that opinion, not upon any specific authority, but upon general reasoning as applied to the character of the statute. There is no lack of judicial authority upon the very difficult subject which this case touches. For in one aspect or another it has been repeatedly necessary to say what effect in reducing the assessment of damages for physical injuries ought to be given to this or that advantage actually or possibly accruing to the plaintiff which but for his injuries he would not have obtained. There are three recent Australian decisions where the matter is considered (Shuter v. Crosby (1956) VLR 47 - Smith J.; Cook v. Marshall Sawmilling Co. Pty. Ltd. (1959) 77 WN (NSW) 40 - Jacobs A.J. and Fraser v. Maxwell (1959) QSR 322 - Wanstall J.) and these support my conclusion. But otherwise none of the authorities govern this particular case and I can find little guidance in the terms which so many of them use in designating or describing the matters or the considerations which are to be excluded or the relation of the cause of action to them. In the context terms like "collateral" or "res inter alios acta" as a description of the advantage to be disregarded and "causa sine qua non" as a description of the relation of the injury to the advantage tell me nothing. Nor is there much assistance to be found in contemplating, as seems sometimes to be recommended, the supposed injustice of relieving the wrongdoer or his insurer. Intuitive feelings for justice seem a poor substitute for a rule antecedently known, more particularly where all do not have the same intuitions. But unfortunately the plain fact is that no legal rule exists that can be applied to every case where an advantage accrues to the injured man which but for the injuries he would not have obtained. To inquire whether the advantage is collateral or not seems to me to ignore the fact that ex hypothesi the advantage arises because the plaintiff suffered the injuries. To say it is res inter alios acta appears difficult when the very man injured is one of the parties between whom the thing is done; how can he come within the word "alios"? To say the injury is only a causa sine qua non, while the precedent or additional conditions whence the advantage arises form a causa causans, seems to me simply to be the expression of a voluntary preference for one of two essential factors which must combine in producing the result and to bring it forward at the expense of the other which is correspondingly pushed back. The problem however certainly does not admit of the exclusion of all causation from its elements. For the problem is to compensate a man for bodily or other "physical" injuries which he has suffered in consequence of the negligent management of the instrument capable of harm. The tort is committed at the moment when he is injured. What we are concerned in is the consequences to him. The consequences must be traced out and so far as they lie in the future they must be pre-estimated and the result assessed together with the consequences which have already accrued and translated into money. I am disposed to adopt the view that fundamentally the damages are for the bodily and physical injuries and the incapacities and deterioration involved in them, using the word "physical" of course in a sense wide enough to include all mental and nervous conditions. There are many consequential heads of damage to which it is customary to direct evidence and which are submitted to a distinct or separate consideration. But in theory as I see it these are really evidentiary even if the evidence is often conclusive to show that they or some notional element based directly upon them must go into the assessment. (at p572)
4. It is at the point where one or another such evidentiary fact is advanced that the question arises whether some particular compensatory or relevant advantage which the plaintiff may or does obtain must be taken into account on the other side, that is to say, on the theory I adopt, in reduction or even refutation of its evidentiary effect. Now as I have already said it appears to be futile to look in the present state of the law for a rule of general application capable of furnishing a ready solution to all or most such questions. The legislature in the United Kingdom has intervened with reference to advantages arising under the national insurance legislation: see Law Reform (Personal Injuries) Act, 1948 and Halsbury Laws of England, 3rd ed. vol. 11, pp. 258-260. But that is not the whole field. It is hardly possible to work out any principle which would apply to every case. But, be that as it may, I think that it is wiser as well as better in the general interest to say simply what is the reasoning which leads to the conclusion that the pension under the Social Services Act 1947-1957 should not be taken into account in reduction of damages. The reasoning begins with a distinction which I think is clear enough in general conception. There are certain special services, aids, benefits, subventions and the like which in most communities are available to injured people. Simple examples are hospital and pharmaceutical benefits which lighten the monetary burden of illness. If the injured plaintiff has availed himself of these, he cannot establish or calculate his damages on the footing that he did not do so. On the other hand there may be advantages which accrue to the injured plaintiff, whether as a result of legislation or of contract or of benevolence, which have an additional characteristic. It may be true that they are conferred because he is intended to enjoy them in the events which have happened. Yet they have this distinguishing characteristic, namely they are conferred on him not only independently of the existence in him of a right of redress against others but so that they may be enjoyed by him although he may enforce that right: they are the product of a disposition in his favour intended for his enjoyment and not provided in relief of any liability in others fully to compensate him. This is readily seen in the case of benevolence. If a fund is raised by subscription for the benefit of a badly injured neighbour obviously this cannot operate in relief of the liability of a man who negligently caused the injury. So in a contract of accident insurance; where in the absence of special stipulation the insurer will not succeed by subrogation or otherwise to the insured's right of recourse against others in the case of injury by their negligence. But for the reason given it does not follow that the negligent parties can treat the insurance as operating in relief of their liability. It was effected by the money of the plaintiff for his own benefit in the event of an accident, a benefit both independent of and cumulative upon whatever right of redress against others might arise out of the circumstances of the accident. (at p573)
5. The invalid pension conferred under the provisions of Pt. III of the Social Services Act 1947-1957 of the Commonwealth is within the conception which it has been attempted to explain. An invalid pension is granted in the exercise of an administrative discretion, though doubtless a discretion exercisable on grounds which are not at large, and it is granted as a benefit to the person after a consideration of his general situation. It is true that there are very special provisions concerning a pension to a blind person: see ss. 22 (g), 24 (a), 25 (1) (f) and (2), 27 (1) (a), 28 (2) (a), 36 and 46 (2). But a grant even of such a pension cannot be obtained as of strict right and it is plain that it is granted after a consideration of the position or situation in which the applicant stands and entirely for his use and benefit and not in relief of any person antecedently liable to him to compensate him in any way for his loss of vision. I agree in the conclusion reached by Wanstall J. in Fraser v. Maxwell (1959) QSR, at pp 325-328 and Jacobs A.J. in Cook v. Marshall Sawmilling Co. Pty. Ltd. (1959) 77 WN (NSW) 40 and, except as to payments of pension made before the trial, by Smith J. in Shuter v. Crosby (1956) VLR 47 . (at p574)
6. Before writing the foregoing I have had the very great advantage of reading the judgments of Windeyer J. in this case and in Paff v. Speed [1961] HCA 14; (1961) 105 CLR 549 and of Fullagar J. in the latter case and I agree generally in them upon this question although I do not come to the same conclusion as Fullagar J. does in Paff v. Speed [1961] HCA 14; (1961) 105 CLR 549 as to the excessiveness of the damages assessed in that case. I agree too subject to the observation appearing above with the judgments of Menzies J. and, subject to the variances in the mode of reasoning which will readily be seen, I agree also with the judgments of McTiernan J. in the two cases. But there remains the first matter upon which the appellant relied in the present appeal, namely the contention that however the case may be viewed, the assessment of damages is in fact excessive. The very magnitude of the sum assessed must of course challenge attention. But when one comes to look at the plight of the plaintiff and his sufferings it is not difficult to see why the learned judge considered that he was warranted in making so large an award. Indeed after considering the evidence I have formed the opinion that the assessment is fully justified. (at p574)
7. I think that the appeal should be dismissed. (at p574)
MCTIERNAN J. This is an appeal against the judgment of Stanley J. in the Supreme Court of Queensland. The learned judge had awarded the plaintiff Espagne (Edwards) a sum of 24,491 pounds 9s. 10d. damages for injuries received in an accident in which a motor car owned by the defendant, Archer, was involved. The sum awarded consisted of 23,000 pounds general damages and 1,491 pounds 9s. 10d. special damages. The defendants claim that this award is manifestly excessive. This claim does not seem to me to be a reasonable one having regard to the evidence. One need only turn to the following facts which are found in the judgment of Stanley J.: "I find that before the accident he had good sight in both eyes. As a result of the accident he is totally blind. He has lost his sense of smell and has been left with a very impaired sense of taste. He has suffered some but not a great deal of actual pain. He has been disfigured. His face is scarred - the frontal bone above his eyes being depressed and he wears dark glasses to conceal his obviously useless eyes. He, too, has suffered brain damage and has not readjusted himself nearly so much as Miss Lill. His personality has been much more adversely affected. Edwards has to take drugs to overcome the traumatic epileptic tendencies that have developed in him. While a competent bush worker, his education is not of a very high standard. But his mental ability to understand generally has not been diminished and he is left very much at a loss. If one asks - What can he do? It is difficult to find an answer. He cannot get about as readily as a man with sight. He can sit about, converse with people who are willing to converse with him and listen to the radio. He cannot read or see pictures or watch television. His efforts at rehabilitation in the appropriate institution have so far been a complete failure owing to his mental maladjustment consequent upon the injuries received. It has not been possible to teach him such crafts as basket-weaving, etc. He has lost the senses of sight and smell and his sense of taste has been radically impaired. His earning power has apparently been completely destroyed". I understand that, in the context of his Honour's remarks, the statement that the respondent's "mental ability to understand generally has not been diminished" must be read in a very limited sense. The sum of 23,000 pounds cannot be regarded as an excessive sum in view of these injuries. (at p575)
2. However it is said that the learned trial judge did not take into account the fact that the plaintiff had been awarded 526 pounds 5s. 0d. as an invalid pension under the Commonwealth Social Services Act. It was also contended that the possibility of future payments of such pension should have been taken into account. In Paff v. Speed [1961] HCA 14; (1961) 105 CLR 549 I expressed the view that a pension payable under the Police Superannuation Fund of New South Wales could not be taken into account in assessing damages for personal injury. I do not think that a Commonwealth Social Services pension is in a different position. As I pointed out in Paff's Case [1961] HCA 14; (1961) 105 CLR 549 the injury is not the causa causans of the receipt of the pension and it would not be just or reasonable for a tortfeasor to claim in the assessment of damages caused by his wrong a credit in respect of a payment received by the injured party from another party towards which the tortfeasor himself has not made nor is liable to make a contribution. No doubt the invalid pension receivable by the plaintiff is provided for by tax and contribution levied under the Income Tax and Social Services Contribution Assessment Act 1936-1959. Presumably the defendants were taxpayers under that Act and the plaintiff also. It seems to me that it is not possible to quantify what amount, if any, of the tax and contribution paid by either defendant or the plaintiff is attributable to or forms part of the invalid pension which is receivable by the plaintiff. It must be borne in mind that tax and contribution levied is utilized not only for invalid pensions, but also for other social service payments such as child endowment. (at p576)
3. The defendants also claimed in the assessment of special damages that the judge had failed to take into account the incidence of income tax on the earnings of the plaintiff. I am not prepared to interfere with his Honour's decision on this point. The plaintiff was a casual worker in the outback. The liability of his earnings to tax would be a difficult matter for a court to determine. Having regard to the evidence I am not satisfied that in respect of this matter the trial judge reached a wrong conclusion or applied a wrong principle of law. I would dismiss the appeal. (at p576)
FULLAGAR J. In this case I do not think that I can usefully add anything to the judgments of the Chief Justice and Windeyer J. I agree that the appeal should be dismissed. (at p576)
MENZIES J. In an action which was heard simultaneously with the action in Lill v. Archer (unreported) because each plaintiff was claiming against the same defendants damages for injuries suffered in the same motor-car accident, Stanley J. awarded the plaintiff Espagne 25,120 pounds, of which 23,000 pounds was general damages. From this award, certain deductions were made resulting in a judgment for 24,491 pounds 9s. 10d. The appeal to this Court against the amount of the award was heard together with the appeal in the Lill Case (unreported). (at p576)
2. Although I have disposed of the latter case quite shortly, this case does
raise questions of considerable difficulty. At the
time of the accident the
plaintiff was an able-bodied man, twenty-two years of age. He had received
little formal education or systematic
training, but he was a competent bushman
who had been earning 20 pounds to 22 pounds a week with lodging and keep,
going from one
job to another, fencing, droving and doing other station work
with little loss of time. The probabilities were that had he not been
injured
he would have continued to earn round about 1,000 pounds a year. As a result
of the accident he is totally and permanently
blind, he has lost any sense of
smell, his sense of taste has been impaired, some damage has been done to his
brain, and he has epileptic
tendencies which have to be controlled by drugs.
His face has been heavily disfigured and he has not been able to do anything
to
occupy his time. He is but the wreck of a man. His earning capacity has, of
course, been completely lost. His Honour's award of 25,120
pounds was made up
as follows:
Loss of earning capacity . . . . . . 10,000 poundsThe special damages were loss of wages from the date of the accident to the trial, 118 1/2 weeks at 22 pounds 10s. 0d. per week, discounted to 106 weeks at 20 pounds per week. In making his award the learned trial judge refused to take into account both a sum of 526 pounds 5s. 0d. which Espagne had to the date of trial received from the Commonwealth of Australia by way of invalid pension under the Social Services Act 1947-1957 and the possibility of further payments thereunder, and the first question is whether his Honour was correct in assessing damages without regard to Espagne's invalid pension. (at p577)
Pain, suffering, ill health, the impairment
of his senses and the loss of capacity
to do anything but exist . . . . 13,000 pounds
Special damages . . . . . . 2,120 pounds
3. Subject to special provisions, a person with the necessary residential qualification who is permanently incapacitated for work or is permanently blind is qualified to receive an invalid pension (s. 24). By s. 25 the granting of a pension is prohibited upon a number of specified grounds, and beyond observing that the most general of these is that a person does not deserve a pension, I propose to leave this section and return to it later to consider with some particularity the ground covered by sub-s. (1) (d). A person seeking a pension must lodge a claim with a registrar of social services (s. 37) who shall refer it to a magistrate for investigation (s. 38). The Act does not provide in terms for the granting of a pension but it is to be inferred that to grant or refuse a pension is a matter for the Director-General of Social Services, and s. 39 provides that where a pension is granted it shall be paid from the date determined by the Director-General. The rate of pension is that determined by the Director-General as reasonable and sufficient and not exceeding the maximum fixed by the Act itself (s. 28). There are in ss. 44 and 45 a number of provisions, having no application to a permanently blind pensioner, requiring pensioners to supply information that might afford grounds for review of any pension that has been granted. Section 46 provides for the cancellation, suspension, reduction or increase of a pension by the Director-General on three stated grounds, namely, (a) the pensioner's property or income, (b) the failure of the pensioner to provide information, and (c) for any other reason. Of these grounds the last is the only one that applies to a pensioner who is permanently blind. The Act makes provision for a pension to cease if the pensioner should leave Australia (s. 49); in the event of a pensioner becoming an inmate of a benevolent home, for payment of part of the pension to the home rather than the pensioner (s. 50); and for the forfeiture of pensions during imprisonment (s. 52). A pension is absolutely inalienable (s. 144). (at p578)
4. Although it is consistent with the Act that within limits the Commonwealth is under a legal obligation to pay instalments of a pension that has been granted (e.g. ss. 41, 42 and 146), there can be no doubt that no person is legally entitled to the grant of a pension and that a pension which has been granted may, in accordance with s. 46, be cancelled, suspended or reduced against the will of the pensioner, although where the pensioner is totally blind this cannot be done on the ground that the pensioner is the owner of property or the recipient of income. (at p578)
5. It is now necessary to return to s. 25 (1) (d), which is in these terms: "An invalid pension shall not be granted to a person . . . if he has an enforceable claim against any person, under any law or contract, for adequate compensation in respect of his permanent incapacity or permanent blindness". This prohibition may be compared with s. 115 relating to sickness benefits and s. 135R relating to the entitlement to statutory compensation of a person who has been granted rehabilitation benefits under Pt. VIII. It is not clear what are the limits of s. 25 (1) (d). Presumably it would cover a claim for workers' compensation and a claim under an accident insurance policy, but does it apply to a common law claim for damages? I think not, for three reasons: first, that although the word "law" could, of course, include the common law, its use in conjunction with the word "contract" would suggest that it means a special law; secondly, that damages are not awarded in respect of "permanent incapacity" or "permanent blindness", notwithstanding that these things are properly to be taken into account in the assessment of general damages; and thirdly, the phrase "adequate compensation" itself would be an unusual way to describe common law damages which nowadays commonly depend upon the degree of fault of the plaintiff as well as upon the loss that he suffers. It is to be observed that s. 25 (1) (d) was not regarded as prohibiting the grant of a pension to Espagne, and I think that this was right for the reasons given and not merely because of whatever doubt there may have been about his having an enforceable claim for damages for negligence. (at p579)
6. Espagne had, therefore, at the date of trial rightly received from the Commonwealth 526 pounds 5s. 0d. by way of invalid pension in respect of the permanent incapacity and the permanent blindness caused by the negligence for which the defendants were responsible, which incapacity and blindness would have to be taken into account in assessing damages in an action founded upon that negligence. It is to be recalled that in this case the assessment of damages included as special damages the sum of 2,120 pounds wages lost between the date of the accident and the date of trial, so it may be asked whether in calculating the special damages to which Espagne was entitled the amount of 526 pounds 5s. 0d. which the plaintiff received from the Commonwealth because of his incapacity and blindness over that period should in the calculation of damages be deducted from the wages which the plaintiff was unable to earn over the same period because of his incapacitating injuries. I think this question should be answered in the negative for the simple reason that although it is as compensation that damages are awarded, in the aspect under consideration it is as compensation for lost wages, and the fact that the Commonwealth has seen fit to make to a person seeking such damages pension payments does not affect the amount of wages that he has lost. This is apparent in this case where the pension on account of blindness would have been paid if and notwithstanding that Espagne retained some capacity to work and did in fact earn wages. It is true that the consequence of this conclusion is that a plaintiff would receive both lost wages and a pension, and in a sense each may be regarded as a result of the injuries sustained; furthermore it is true as a general proposition that damages as loss of earnings should be assessed so that "the injured person should be placed in the same financial position, so far as can be done by an award of money, as he would have been had the accident not happened", to use the language of Lord Goddard in British Transport Commission v. Gourley [1955] UKHL 4; (1956) AC 185, at p 206 . I think, however, that even if it were the case that a Commonwealth pension had been granted for the very same injury as gives rise to incapacity which has prevented the earning of wages, the receipt of the pension should not be regarded as something to be taken into account as mitigating damages for wages lost by reason of that injury, and the same would be true of any voluntary charitable payment whether it be described as too remote, collateral or as a payment by somebody having no connexion with the litigation. The loss of capacity or the blindness only qualifies a person to receive an invalid pension, which may be granted or refused, so that the injury should be regarded as the occasion rather than the cause of the pension payment. To deduct what has been received in assessing damages would really amount to depriving the injured person of his pension or the gift made to him as the case may be. Here I should observe that in Shuter v. Crosby (1956) VLR 47 , Smith J. did hold that payment of an invalid pension already received should be taken into account in assessing damages for the negligence occasioning the personal injuries which were themselves the occasion for the pension. The ruling was, however, one made in the course of a trial without any opportunity for considering the point and was given without reasons; while according the greatest respect even to an extempore decision of that learned judge, I have, for the reasons I have given, reached a contrary conclusion here. (at p580)
7. Leaving now the 526 pounds 5s. 0d. paid by way of pension up to the trial and looking to the future, I see even less reason for regarding the operation of the Social Services Act as mitigating general damages. To the reasons which I have given for my conclusion that the pension already paid should not be deducted from wages lost in calculating special damages, I add as a further reason for the concluson that the possibility of future payments should not be taken into account in assessing general damages, the circumstance that the pension may cease. I refrain from expressing any opinion upon the question whether in this particular case, where the pensioner is not only incapacitated but is totally blind, the liability of the appellant to pay such damages as put the pensioner beyond the need for further assistance could afford any ground for reviewing his pension; it is sufficient for present purposes to refer to provisions such as ss. 48-52 and to the recognition in s. 46 (1) (c) and (2) that a permanently blind person may in some circumstances have his pension calcelled, suspended or reduced. (at p580)
8. So far I have considered the question of the effect of the Social Services Act upon the calculation and assessment of damages for injuries caused by negligence, as one of principle, but there are authorities to which I should refer. In doing so I put aside the cases arising under Lord Campbell's Act and corresponding legislation: for instance, Lincoln v. Gravil [1954] HCA 24; (1954) 94 CLR 430 . This distinction between the assessment of damages under Lord Campbell's Act and that at common law was adverted to by Bramwell B. in Bradburn v. Great Western Railway Co. [1854] EngR 538; (1874) LR 10 Ex 1 , which is the earliest and most authoritative case in this branch of the law. (at p581)
9. In that case the Court of Exchequer Chamber rejected without elaborate reasoning - and with some dismay that it had been advanced - a contention that damages for injuries caused by the defendant's negligence should be reduced by what the plaintiff had received under an accident insurance policy. Although the accident was the occasion which gave rise to an entitlement under the policy, the insurance moneys were not regarded as having been received because of the accident. What the headnote describes as the reasoning of that case was followed by the Court of Appeal in Payne v. Railway Executive (1952) 1 KB 26 when it was held that a naval disability pension granted to the plaintiff was rightly disregarded in assessing damages for the defendant's negligence. There, there was evidence that the pension would be reduced in consequence of the judgment, but the broad basis of the decision was that the plaintiff did not receive his pension because of the accident but because he was a sailor and that the accident was no more than the occasion for the payment of the pension. This was expressed by saying that service in the Navy was the causa causans, and the accident the causa sine qua non: cf. Hochstrasser v. Mayes (1960) AC 376 . In Judd v. Board of Governors of the Hammersmith, West London and St. Mark's Hospitals (1960) 1 All ER 607 Finnermore J. applied Payne's Case (1952) 1 KB 26 and held that pension payments to the plaintiff out of an employer and employees fund should not be considered in assessing damages for injuries caused by the defendant's negligence and treated the payment of the pension as a consequence of the plaintiff's service with his employer and his own contributions to the fund, and not as a consequence of the accident. His Lordship apparently accepted the argument for the plaintiff expressed as follows: "Counsel for the plaintiff makes the submission in law that the whole of the pension must be disregarded: whether because it is res inter alios acta, or whether it is too remote, or whether because it is wrong to allow a tortfeasor or wrongdoer to benefit by what somebody else has done by way of provision for his future, matters not, nor does it matter, if it be the fact, or if it be the result, that the plaintiff benefits to this extent by having his pension and having also his compensation for his loss of earnings." (1960) 1 All ER, at pp 608, 609 . This citation conveniently collects some of the forms of expression that have from time to time been adopted in refusing to allow a defendant in the assessment of damages the advantage of payments made to a plaintiff by third parties, but whatever mode of expression may be used it seems that in each case where a payment has been disregarded it has been on the basis that the payment was not made because of the accident, notwithstanding that the occasion for the payment was the accident and its consequences. In the same way in British Transport Commission v. Gourley [1955] UKHL 4; (1956) AC 185 the approach adopted was whether a reduction claimed was or was not too remote to operate to diminish damages. It is abundantly clear here that Espagne was not granted and paid a pension because of the negligence which caused his blindness and incapacity. He was granted and paid it because the Act so provides upon its own terms when a person from any cause becomes totally incapacitated or totally blind. (at p582)
10. My conclusion that Espagne's invalid pension should be disregarded is, I am reassured to find, in line with a number of Australian decisions (see, for instance, Cook v. Marshall Sawmilling Co. Pty. Ltd. (1959) 77 WN (NSW) 40 , Fraser v. Maxwell (1959) QSR 322 , and Shuter v. Crosby (1956) VLR 47 as to future payments). (at p582)
11. The appellant also contends that the amount of general damages awarded to Espagne is more than could have been arrived at by the exercise of a sound discretion. The mere statement of what he was and what he is now is, I think, sufficient to dispose of this argument. There is, however, one aspect of the assessment that has occasioned me some misgiving. As has already been said, Stanley J. assessed special damages by calculating lost wages from the date of the accident to the date of the trial, but in assessing general damages he allowed 10,000 pounds for the loss of future earnings and as I understand the judgment the calculation upon which this sum was based started from the date of the accident rather than from the date of trial in that it treated the plaintiff as a man of twenty-two, whereas at the date of the trial he was nearly twentyfive. He was born on 14th July 1935, the accident happened on 29th December 1957 when he was twenty-two, and the trial took place in May 1960 when he was twenty-four. It seems, therefore, that there may have been some duplication in the award of special damages and the award of 10,000 pounds for loss of earning capacity. I have, however, come to the conclusion that not only is this matter not covered by the notice of appeal but it is not something that in all the circumstances of this case should lead to any variation of the judgment of Stanley J. (at p583)
12. For the foregoing reasons I would dismiss the appeal. (at p583)
WINDEYER J. This is an appeal by The National Insurance Company of New Zealand Limited, one of the defendants in an action tried by Stanley J. in the Supreme Court of Queensland. His Honour awarded the plaintiff, the present respondent, 24,491 pounds 9s. 10d. as damages for personal injuries he received when a motor car in which he was a passenger ran off the road and overturned. His Honour found that the accident was caused by the negligence of the driver of the vehicle, one Brinskey. The writ named as defendants Brinskey, Archer the owner of the vehicle and the appellant, which had elected to be joined pursuant to The Motor Vehicles Insurance Act of 1936 (Q.). Brinskey, however, had disappeared and the writ could not be served on him: so the case went to trial against the appellant and Archer, who has not appealed. The appeal is only as to the amount of damages. The sum his Honour awarded was made up of 23,000 pounds general damages, and 2,120 pounds treated as special damage, being his Honour's estimate of the amount (106 weeks at 20 pounds a week) that the plaintiff if he had not been injured might have earned between the date of the injury and the date of the trial. The assessment is challenged on three grounds: first, that his Honour did not take into consideration an invalid pension granted to the plaintiff because of his injuries: secondly, that in calculating loss of earnings his Honour, it was said, failed to take the effect of income tax into consideration: thirdly, that in any event the amount awarded for general damages was excessive. (at p583)
2. At the time of the accident the respondent Espagne, or Edwards as he was commonly known, was aged twenty-two. He was an active man and a skilled bush worker. He was able to earn 1,000 pounds a year, or more if continuously employed; and he had had no difficulty in obtaining fairly regular employment. As a result of the accident he has been made totally blind; his brain has been damaged; he has lost all sense of smell; and his sense of taste is seriously impaired. His Honour said that "his efforts at rehabilitation in the appropriate institution have so far been a complete failure owing to his mental maladjustment consequent upon the injuries received. It has not been possible to teach him such crafts as basket-weaving, etc". He has to take drugs regularly to control a tendency to traumatic epilepsy. His ability to understand and to converse has not been affected; but his education is not of a high standard and he is at a loss for something to do. The gravity of his injuries and the awful deprivations they have caused are apparent. (at p584)
3. The accident happened on 29th December 1957. On 13th February 1958 the plaintiff was granted a pension under the Social Services Act 1947 as amended, of 4 pounds 7s. 6d. per week: the rate was afterwards increased as a result of amendments of the Act. Up to the date of trial, 10th May 1960, he had received 526 pounds: and he was then being paid a pension at the rate of 247 pounds per annum (9 pounds 10s. 0d. per fortnight). In assessing damages his Honour, following earlier decisions of the Supreme Court of Queensland, declined to make any deduction for the amount the plaintiff had thus received, or any allowance for the continuance of his pension in the future. Whether he was right is the important question in this case. Similar questions have arisen elsewhere and have given rise to much discussion by courts and commentators. (at p584)
4. Disability pensions, sick pay and similar benefits are common incidents of employment to-day: and they and various forms of social welfare services, free medical aid, invalid pensions and workers' compensation do in fact alleviate the consequences of many tortious injuries. For lawyers the question is still what is the measure of the damages for which a wrongdoer is liable. But the ultimate contest is often whether the cost of ameliorating the lot of a sufferer is to be borne by an insurer or by the State - and sometimes, when the State is itself the insurer, it is in what way and by which agency of the community injuries to an individual are to be alleviated. The problems thus arising were considered in England in 1946 by the Departmental Committee on Alternative Remedies. A summary of proposals that it had before it is given by Professor Friedman in his article Social Insurance and the Principles of Tort Liability (1949) 63 Harvard Law Review, 241, at p 253. The result of its labours was the compromise embodied in the Law Reform (Personal Injuries) Act, 1948, s. 2. But no arbitrary statutory solution is available for us. We must seek it in the common law. (at p584)
5. Before discussing general principles, it is necessary to consider the nature of invalid pensions granted by the Commonwealth. The respondent's pension was granted under the Social Services Act 1947-1957. The Act was afterwards amended and at the date of the trial it was the Social Services Act 1947-1959: but, apart from a difference in the rates of pension, the amendments are largely irrelevant for present purposes. The Act regulates the grant of pensions; but it does not create an enforceable right to a pension. The only rights it gives to claimants appear to be a right to have a claim for a pension determined by the Director-General of Social Services in accordance with the Act (ss. 13, 37, 38), and, perhaps, a right in a pensioner to whom a pension has been granted to have any amounts actually accrued paid to him (see s. 146). The Act authorizes the payment of pensions and other benefits out of the National Welfare Fund (s. 136) to qualified persons to whom such pensions or benefits have been granted: and it prescribes the conditions on which they may be granted. Any person over the age of sixteen years, who has resided in Australia for five years and is permanently incapacitated for work or is permanently blind, is qualified for such a pension (s. 24). But being thus qualified is not enough to ensure a grant. For - in addition to various express disqualifications (s. 25 (1) (c) and (e), ss. 138, 140 and cf. s. 22) - the Act provides that a pension "shall not be granted to a person if he is not deserving of a pension" (s. 25 (1) (a)), although it does not indicate what renders a claimant undeserving. The rate of a pension is to be what, subject to a prescribed maximum, the Director-General determines to be "reasonable and sufficient having regard to all the circumstances of the case" (s. 28 (1)): and when a pension is granted it is payable from a date to be determined by the Director-General (s.39). In all cases, except those of permanently blind persons, the annual rate at which the pension is determined by the Director-General is, however, reduced by the amount by which the income of the claimant or pensioner exceeds 182 pounds per annum. And the Director-General may, having regard to the income or value of the property of a pensioner, cancel or suspend, reduce or increase any pension except that of a permanently blind person. A blind person's pension cannot be cancelled, suspended or reduced on account of his income or the value of his property. However, under s. 46 the Director-General may cancel or suspend any pension "for any other reason": and that applies whether or not the pensioner be blind. The grounds the Act prescribes for the exercise of the powers it confers are thus expressed in terms appropriate to the exercise of a discretion, and not appropriate as precise criteria of legal rights. Moreover a pension can be reviewed from time to time, and discontinued or reduced because of the pensioner's income or the value of his property (s. 28 (2), s. 46). This means that a pension (of anyone except a blind person) is reducible if the pensioner afterwards recovers substantial damages: and it may be assumed that ordinarily a reduction will be made, because as Scrutton L.J. said, "it is difficult to believe that a public department would put upon the taxpayer a burden which should be discharged by the wrongdoer" (Baker v. Dalgleish Steam Shipping Co. (1922) 1 KB 361, at p 373 ). (at p586)
6. Therefore, as a pension (except that of a blind pensioner) may be discontinued or reduced having regard to any amount recovered as damages, those damages must be assessed without regard to the prospects of the continuance of the pension. But whether pension moneys received before the date of trial are also to be ignored does not emerge so clearly from the terms of the Act. And in 1956 Smith J., when giving a ruling on evidence in the course of a trial in the Supreme Court of Victoria, held that the prospect of an invalid pension (not for blindness) being continued should be disregarded in assessing damages; but that amounts received up to the date of trial should be taken into consideration (Shuter v. Crosby (1956) VLR 47 ). Section 46 provides for the cancellation, or suspension of a pension "which is being paid", or for a variation in its rate, having regard to the income or value of the pensioner's property. But there is no provision for the refunding of any moneys already received. This points the distinction that Smith J. made. But, with respect for this view, my approach to the question leads me to a different conclusion. The policy of the Act seems clearly enough to be that (except in the case of blind persons) grants of pensions, rates of pensions and continuance of pensions are, within the limits prescribed, dependent upon the value of the property that a claimant or pensioner has or may acquire. In other words invalid pensions (except for blindness) depend upon a "means test". To reduce the amount recoverable because the plaintiff had received pension moneys before the date of trial would be to reduce the value of the property to be taken into consideration against a claim for a continuance of the pension. It may be urged that not to take payments received into account conflicts with the common law doctrine that damages in tort are compensatory, and that a defendant should not be called upon to pay again for harm for which the Commonwealth has already provided compensation. How far the principle that damages are compensatory only remains to-day unqualified in the common law I shall consider later. At this point it is only necessary to say that the Commonwealth disburses its bounty according to the statute; and it may override the common law. To read the Act as meaning that the grant of a pension diminishes a pensioner's claim against a wrongdoer would be to the advantage of the wrongdoer and his insurer: but it would be, or might be, to the disadvantage of the Commonwealth and of the pensioner. This is not, in my view, the result that the statute on its true construction produces. I am therefore of the opinion that, because of the terms of the Act, evidence of the grant of an invalid pension, or of a claim for a pension, for disabilities other than permanent blindness is irrelevant in an action for damages for personal injury. But the respondent is permanently blind and blinded persons are in a special position under the Act: and that it is now necessary to consider. (at p587)
7. The pension of a permanently blind person, like all invalid pensions under the Act, can be terminated on any ground that is comprehended by the description "any other reason" in par. (c) in s. 46 (1). But, no doubt, a blind pensioner can count on a continuance of his pension, unless there is any reason to suppose that he may become insane or be imprisoned for an offence (ss. 48, 45). But s. 25 (1) (d) must be considered. It provides that "an invalid pension shall not be granted to a person if he has an enforceable claim against any person, under any law or contract for adequate compensation in respect of his permanent incapacity or permanent blindness". The meaning of this is most obscure. What is an enforceable claim under any law or contract? Does it include a good cause of action for damages at common law? If so, the pension was not properly granted: and it should presumably be cancelled. But this can hardly be what is meant; for, as the Chief Justice observed during the hearing of this appeal, an action for damages for negligence cannot provide adequate compensation when there is contributory negligence and a statutory provision for apportionment of damages as in Queensland. Moreover, the phrase "claim under any law or contract" seems inapt to include rights of action in tort. I am inclined to think that it refers rather to statutory provisions, such as workers' compensation, and to contractual rights, whether under contracts of employment or by insurances such as accident policies. If that be so, the provision has no application here; the pension was lawfully granted; and it may be assumed that there is little likelihood of its being suspended or reduced in the future. What then is the position? The Act alone does not provide a clear answer. Aid must be sought from a consideration of cases and of principles. (at p587)
8. In actions under Lord Campbell's Act the amount received as a pension granted consequent upon death, and the value of the prospect, or probability, of continuance of a pension must - in the absence of any statutory provision displacing the general rule - be taken into account in assessing damages. The authorities for this are collected in the judgment of Fullagar and Kitto JJ. in Lincoln v. Gravil (1954) 94 CLR, at pp 443, 444 ; to which may be added a reference to discussions in some more recent cases, Peacock v. Amusement Equipment Co. Ltd. (1954) 2 QB 347 ; Bowskill v. Dawson (No. 2) (1955) 1 QB 13 ; Mead v. Clarke Chapman & Co. Ltd. (1956) 1 All ER 44 ; Jenner v. Allen West & Co. Ltd. (1959) 2 All ER 115 . But damages under Lord Campbell's Act are for the loss of pecuniary benefits consequent upon death. A common law action for damages for personal injury, on the other hand, is not a claim to have a pecuniary loss made good, but to have a pecuniary compensation for all the consequences of physical injury. The distinction becomes thin when the element in general damages that is commonly called economic loss is separately considered: and I confess that there is much in the reasoning in the judgments concerning damages for the pecuniary consequences of death that seems to me logically applicable to the purely economic consequences of physical and mental incapacity. A pension diminishes the pecuniary loss that results when the death of the father deprives a family of the contribution he made to their support. Why, it may be asked, does not a disability pension similarly diminish the monetary loss a man himself suffers by being unable to work? But the same question could be asked about the proceeds of an insurance policy. And there law rather than logic gives the answer. (at p588)
9. The decision in Bradburn v. Great Western Railway Co. [1854] EngR 538; (1874) LR 10 Ex 1 , has stood too long and on too firm a foundation of policy and justice to be unsettled by demands for logical consistency. It does not depend upon general doctrines of subrogation; for accident policies are not contracts of indemnity and subrogation does not apply (Halsbury, 3rd ed. vol. 22, p. 261), although an accident policy may require that the insured in the interests of the insurer shall prosecute any claim for damages that he may have. How far then is the decision in Bradburn's Case [1854] EngR 538; (1874) LR 10 Ex 1 to be extended by analogy and what general principle is to be extracted from it? That is the question as I see it. My brother Fullagar, distinguishing cases under Lord Campbell's Act, has said that "cases at common law are governed, in respect of pensions and other sums which become payable by reason of injury, by the rule in Bradburn v. Great Western Railway Co. [1854] EngR 538; (1874) LR 10 Ex 1 , which has generally, I think, been regarded as laying down an important general principle": Attorney-General for N.S.W. v. Perpetual Trustee Co. (Ltd.) (1952) 85 CLR, at p 292 . And in the Supreme Court of New South Wales Jacobs A. J., said recently in Cook v. Marshall Sawmilling Co. Pty. Ltd. (1959) 77 WN (NSW) 40 : "It would be a simple approach to say that upon an injury happening a plaintiff cannot have both what he has lost and what he has received, but would not have received if there had not been an injury. It seems clear, however, that this is not the principle of law" (1959) 77 WN (NSW), at p 41 . I agree: but the problem is to state the principle in relation to the dominant rule, as Earl Jowitt called it, that the wrongdoer is liable only for such damages as by reason of his wrongdoing the plaintiff sustained (British Transport Commission v. Gourley (1956) AC, at p 202 ). And in the application of this principle matters occurring after an injury that in fact mitigate its consequences are ordinarily to be taken into account in assessing damages. Faced with this, those who invoke the "rule in Bradburn's Case [1854] EngR 538; (1874) LR 10 Ex 1 "recognize that it may result in the defendant being liable to pay for harm the consequences of which have already been mitigated, and in the plaintiff therefore getting pecuniary compensation from two sources for the same damage. They offer, however, a variety of formulae to explain and define the cases in which this can occur. These are called "collateral matters", "res inter alios acta", "causa causans", "voluntary receipts", "non-exoneration of wrongdoers", "remoteness" and by other labels. I shall examine each of these. (at p589)
10. In Mayne on Damages, 11th ed. (1946) p. 151 it is said that: "Matters completely collateral, and merely res inter alios acta, cannot be used in mitigation of damages". But this does not provide a practical test of relevancy. The expression "matters completely collateral" is entitled at best only to the qualified approval that Lord Reid gave it: "I cannot find better words (for a general description of what is too remote) but I do not think that every case can be solved merely be applying those words to it" (1956) AC, at p 214 . Indeed Mayne's passage really raises as many difficulties as it allays, as Asquith L.J., as he was, recognized in Shearman v. Folland (1950) 2 KB 43 . "It is easier", he said, "to formulate this maxim than apply it. What in a given case is, and what is not 'collateral'? Insurance affords the classic example of something which is treated in law as collateral. Where X. is insured by Y. against injury which comes to be wrongly inflicted on him by Z., Z. cannot set up in mitigation or extinction of his own liability X.'s right to be recouped by Y. or the fact that X. has been recouped by Y. . . . . There are special reasons for this. If the wrongdoer were entitled to set off what the plaintiff was entitled to recoup or had recouped under his policy, he would in effect be depriving the plaintiff of all benefit from the premiums paid by the latter, and appropriating that benefit to himself" (1950) 2 KB, at p 46 . But those special reasons are not present in the case of an invalid pension. And the expression res inter alios acta seems to have little application. Indeed that phrase, extracted presumably from the maxim res inter alios acta alteri nocere non debet, is here misleading, as Lord Goddard pointed out in Gourley's Case (1956) AC at pp 206, 207 . (at p590)
11. Next it is urged that pensions are to be disregarded in assessing damages, because it has been said that the plaintiff's injuries are not the causa causans of their receipt. This approach to the question was one of those pointed out in Payne v. Railway Executive (1952) 1 KB 26 . It has been taken judicially in Canada and recently approved in New South Wales. But the signposts in Latin do not really make this path easy. Sir Frederick Pollock long ago sounded a warning that "the lawyer cannot afford to adventure himself with philosophers in the logical and metaphysical controversies that beset the idea of cause". An examination of such cases as I have been able to discover - some of which are mentioned below - in which the expression causa causans was used makes me think that either it has no certain meaning for legal purposes or, if it has, that its use in some cases was catachrestic. It can be a dress for what would otherwise be a naked petitio principii. But before going further it is well to notice that for legal purposes questions of cause and consequence have usually been said to be questions of fact. They arise in issues joined on averments that in pleadings of the older sort commonly commenced with the word "whereby". In an action for negligence what was the cause of an accident, or in an action on a marine policy what was the proximate cause of the loss, are questions of fact to "determined by applying common sense to the facts of each particular case" (Stanley v. Gypsum Mines Ltd. [1953] UKHL 4; (1953) AC 663, at p 681 ; Fitzgerald v. Penn [1954] HCA 74; (1954) 91 CLR 268 ; and cases referred to in Halsbury, 3rd ed. vol. 22, p. 91). In such cases, Lord du Parcq has said "a jury would not have profited by a direction couched in the language of logicians, and expounding theories of causation, with or without the aid of Latin maxims" (Grant v. Sun Shipping Co. Ltd. (1948) AC 549, at p 564 ). It is true that the authorities, especially those concerning perils of the sea, show that sometimes questions that are to be determined on common sense principles have only been finally determined by the House of Lords: but they were nevertheless issues of fact. Yet the argument here was not that the relevance of the pension was a question of fact. Rather it was that before a jury evidence of the pension would have been inadmissible. However, if it be material to know whether or not the plaintiff's injury was the causa causans of his pension, we must know what this means, whether the issue be one to be decided by the judge or the jury. (at p591)
12. We may take as a starting point Viscount Haldane's statement in Thom or Simpson v. Sinclair (1917) AC 127 : "My Lords, the expression 'cause' is almost invariably used in a way that lacks precision. In strict logic the cause cannot be pronounced to be less than the sum of the entire conditions. But in ordinary speech and practice we select some one or more out of what is an infinite number of conditions to be treated as the cause" (1917) AC, at p 135 . And, as he went on to illustrate, which one we select varies with the purpose in hand. The definition of cause as the sum of the conditions, derived from John Stuart Mill, had met philosophical criticism before Lord Haldane's reference to it. "A serious metaphysical mistake" Bradley called it (Principles of Logic 2nd ed. (1922), p. 210); and Bosanquet had said that "the totality of the relations would be a better phrase" (Logic, 2nd ed. (1911) vol. 1, 251). But this need not concern us, for questions of cause and consequence are not the same for law as for philosophy and science. That, it seems to me, is better than saying that law stops short of philosophy in considering causation. Philosophy and science seek the explanation of phenomena and look to relationships and concurrences. Law is not concerned rerum cognoscere causas, but with attributing responsibility to persons. "The object of a civil inquiry into cause and consequence is to fix liability on some responsible person" is how Lord Sumner put it in Weld-Blundell v. Stephens (1920) AC, at p 986 . For this purpose the common notion of cause as understood in ordinary speech suffices. It involves concepts of a sequence of events in time and of agency that are inherent in the meaning of the Latin word "causa" - see, for example Cicero De Fato XV, 34 - so that a consequence is thought of as the product of its cause. And thus, while there is a causal connexion in fact between an earlier event and a later event whenever without the former the latter would not have occurred as it did, one causa sine qua non is taken as that on which legal responsibility or culpability depends. I have said elsewhere (1960) 103 CLR, at pp 583, 584 that the distinction between the cause to which legal liability attaches and other necessary, and therefore causal, antecedents of an event - sometimes called the conditions or the occasion for the operation of the effective cause - is not, in my view, a merely arbitrary choice of one equivalent rather than another as the determinant for legal purposes. As the purpose of the inquiry into causes is to attribute or apportion legal responsibility, and not to find ultimate explanations, the factor chosen by the common law is that which common sense fixes upon as relevant to responsibility in a particular case. I do not intend to venture here into a topic that has been lately much discussed by juristic writers: but to speak of decisions as based on policy or convenience or justice surely presupposes that the law is able to enunciate a policy and to apply it, that considerations of convenience and justice are not matters of mere caprice? "In the varied web of affairs, the law" said Lord Wright, "must abstract some consequences as relevant, not perhaps on the grounds of pure logic but simply for practical reasons" (Liesbosch, Dredger v. S. S. Edison (Owners) [1933] UKHL 2; (1933) AC 449, at p 460 ). And in looking back to cause instead of forward to consequences the same rule applies. (at p592)
13. The commencement of all this is in the maxim in jure non remota causa sed proxima spectatur and Lord Bacon's famous paraphrase of it: "It were infinite for the law to consider the causes of causes, and their impulsions one of another; therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree." The reference to "the causes of causes" is significant. When Bacon wrote the expression causa causans meant the primary or original cause in a sequence in which each subsequent factor is the product of its antecedents: so that causa causans was contrasted with causa causata, a caused cause, that is a secondary or intermediate cause in such a sequence. The Oxford Dictionary has an example of this use in the seventeenth century. But in more modern times there have sometimes been some shiftings of the meaning of causa causans by lawyers - especially when the expression is used in connexion with marine insurance and shipping contracts. Lord Esher treated causa causans as the equivalent of "real cause" or "efficient cause", which he distinguished from causa proxima or last cause. That was the way in which he had used the terms when he was at the Bar - in an argument that Pollock C.B. approved in Lloyd v. General Iron Screw Collier Co. [1864] EngR 499; (1864) 3 H & C 284 (159 ER 539) - and he adhered to it when on the Bench (Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Co. (1883) 10 QBD, at p 531 ; Pink v. Fleming (1890) 25 QBD 396 ). "This question" he said "can only arise where there is a succession of causes which must have existed in order to produce the result" (1890) 25 QBD, at p 397 . It is, however, now authoritatively established that in marine insurance a proximate cause - and the term appears in the Marine Insurance Act - means proximate in efficiency rather than in time. The proximate cause is "the dominant cause", "the real efficient cause", what was "in substance" the cause (Leyland Shipping Company v. Norwich Union Fire Insurance Society (1918) AC, at 363, 369, 355 ). This rule, when taken with earlier statements, in which the causa causans was said to be the "real cause", might suggest that, in this context, causa causans and causa proxima are the same thing. But in Becker Gray & Co. v. London Assurance Corporation (1918) AC 101 Lord Sumner said: "It must be admitted that the terminology of causation in English law is by no means ideal. It would be the better for a little plain English. I think 'direct cause' would be a better expression than causa proxima. Logically the antithesis of proximate cause is not real cause but remote cause. Lord Ellenborough uses causa causans as its equivalent in Gordon v. Rimmington (1807) 1 Camp 123 (170 ER 899) " (1918) AC, at p 114 . And in P. Samuel & Co. v. Dumas (1924) AC 431, at p 468 Lord Sumner again made clear that the causa causans and the causa proxima of an event are not necessarily the same. More recently it has been said that, the proximate cause being that which is "predominant in efficiency" it is to be found among and distinguished from other co-operating causes (Yorkshire Dale Steamship Co. v. Minister of War Transport (1942) AC 691, at p 706 and see Boiler Inspection and Insurance Company of Canada v. Sherwin-Williams Company of Canada Ltd. (1951) AC 319 . But, as Lord Asquith of Bishopstone pointed out (Stapley v. Gypsum Mines Ltd. (1953) AC, at p 687 ) there is in all of this a deep fission between law and logic. How can one factor be logically more efficacious than another in producing a result for which both must exist? See also Heskell v. Continental Express Ltd. (1950) 1 All ER, at p 1048 ; West Wake Price & Co. v. Ching (1957) 1 WLR 45, at p 49 . This question has its special difficulties for contributory negligence: and it may affect the apportionment of damages for negligence where that is provided for, although there, generally speaking, the law has abandoned vain ideas of causal efficacy for the more practical comparison of degrees of departure from the standard of care of a reasonable man. (at p593)
14. The idea of cause and consequence is a necessary element in law, especially in the law of crime and tort. And it is, it seems to me, neither surprising nor perhaps undesirable that some phrases long used to expound its significance and application should continue to be used. Some of them have a long history: the expression "efficient cause" for example goes back at least to scholastic theology. St. Thomas Aquinas spoke of "causa efficiens omnium entium" (Summa Theologiae Q. XLIV). But if Latin distinctions are thought to be useful, then it seems important to avoid cross divisions. Causa causans and causa causata refer to different occurrences in a causal sequence. Causa proxima and causa remota are contrasted in another way. Causa causans may be and often is used to mean the cause or "real cause", being that to which legal responsibility attaches, as distinct from a causa sine qua non, a matter that in the particular case does not attract legal responsibility. But causa causans and causa sine qua non are not mutually exclusive expressions: and remarks by Lord Bramwell in the course of his speech in Wilson Sons & Co. v. The Xantho (1887) 12 App Cas, at p 514 ought not, it seems to me, to be read as suggesting the contrary. Lord Wright in Smith Hogg & Co. v. Black Sea & Baltic General Insurance Co. (1940) AC 997 said: "'Causa causans' is supposed to mean a cause which causes, while 'causa sine qua non' means, I suppose, a cause which does not, in the sense material to the particular case, cause, but is merely an incident which precedes in the history or narrative of events, but as a cause is not in at the death, and hence is irrelevant" (1940) AC, at p 1003 . But it may be permissible to doubt whether when pressed to a final analysis this distinction is as real or as helpful as its frequent repetition, especially in connexion with negligence and contributory negligence, might suggest. The judgment of Pigott B. in Bradburn's Case [1854] EngR 538; (1874) LR 10 Ex 1 shows that these doubts are not removed when English instead of Latin words are used to denote causal relationships. He said of the plaintiff's having received the proceeds of an accident policy: "He does not receive that sum of money because of the accident, but because he has made a contract providing for the contingency; an accident must occur to entitle him to it, but it is not the accident, but his contract, which is the cause of his receiving it" (1874) LR 10 Ex, at p 3 . This statement may be examined without canvassing the decision in the case. The contractual right of an insured person to be paid by the insurer the sum assured by the contract arises when the event insured against happens, and not unless it does happen. An insurance policy and an accident were both necessary for Bradburn to get the money. Why then was one the cause and the other not? The selection of one causal factor rather than another as that on which legal responsibility depends seems to me very different from asserting, for quite another purpose, that money is received under a contract because the contract was made and not because it was performed according to its terms. The statement has been often quoted. But to me it and some cases in which it has been relied upon seem to provide some justification for Dr. Glanville Williams' generalization (in (1954) 17 Modern Law Review pp. 68, 69) that "a vague doctrine like that of legal causation is a convenient formula for purporting to justify an opinion which in fact proceeds from an intuitive sense of justice applied to the case as a whole". Moreover, if Latin labels be at all useful for these purposes - which I greatly doubt - then it seems it would be proper to say that the accident was the causa causans of the receipt of the money by Bradburn. That would accord with what is, I consider, the correct use of this expression, as Lord Lindley, then Lindley L.J., used it in Cullerne v. London & Suburban Building Society (1890) 25 QBD 485, at p 489 . Speaking of an illegal resolution by directors of a building society authorizing advances to members and of a loss incurred when the directors relying on the resolution made an advance, he said: "It probably is true that if no such resolutions had been passed no such advances as they authorized would have been made ; but the real cause of the loss sustained by the society is the improper advance ; the resolution was not the causa causans of the loss, but only a causa sine qua non. If the resolution alone had been passed nothing would have happened ; it would have had no result. A new wrongful act by independent persons was the real cause of the loss. The resolution, therefore, was not the real cause, not the causa causans". An accident is not the consequence of effecting an insurance against accident. Both must occur for the policy holder to be paid : but they are not "causes of causes impulsions one of another". (at p595)
15. It is Lord Summer's use of the expressions causa causans and causa sine qua non in Admiralty Commissioners v. S. S. Amerika (1917) AC 38, at pp 60, 61 that has brought them into discussions of the present question. Speaking of a pension paid by the Admiralty to the dependents of naval ratings who were drowned he said : "The money . . . was lost to the Exchequer directly because the Crown through its officers was pleased to pay it. The collision was the causa sine qua non ; the consequent drowning of the men was the occasion of the bounty ; but the causa causans of the payment was the voluntary act of the Crown" (1917) AC 38, at pp 60, 61 . That case was concerned with the damages the Crown had suffered. It was not an action by an injured man or by the dependents of a deceased man. The drownings were caused by the collision, which was caused by the negligence of the "Amerika"; but the payment was to be regarded as caused by the intervention of a new agency, the decision of the Admiralty Commissioners : this was the causa causans of the Crown's loss of the money paid as pensions. But when it is sought to apply Lord Sumner's words to cases like the present the question is what was the cause of the recipient getting the pension. Baker v. Dalgleish Steam Shipping Co. (1922) 1 KB 361 also arose because of a collision between a naval vessel and another vessel, which was wholly to blame. The widow of a petty officer who was drowned was granted a pension by the Admiralty. The question was whether it should be taken into account in assessing damages in an action brought by her against the owners of the negligent ship. It was held that it should be. The application of Lord Sumner's remarks to the pension moneys there in question was alluded to by Younger L.J. as he was then : "The death", he said, . . . "due to causes for which the appellants are responsible was and will be both the causa causans and the causa sine qua non of their payment. I take these words from the judgment of Lord Sumner in Admiralty Commissioners v. S. S. Amerika (1917) AC 38, at p 61 and apply them, as I think properly - he was not there doing so - to the recipients" (1922) 1 KB, at pp 379, 380 . As Baker's Case (1922) 1 KB 361 arose under Lord Campbell's Act, the decision has no direct bearing on this case : but in Payne's Case (1952) 1 KB 26 , which the respondent here relies upon, the question arose in an action brought by a naval rating disabled in a railway accident who was receiving a naval pension granted because of his disabilities. Cohen L.J., as he was then, in the course of his judgment said : "It seems to me that the accident in this case was not the causa causans of the receipt by the plaintiff of the disability pension but the causa sine qua non. The causa causans was his service in the Royal Navy" (1952) 1 KB, at p 36 . But does this dictum stand with other decisions? The Admiralty paid the pension because he was disabled while serving in the Navy. But why was service in the Navy the causa causans of its payment or of its receipt by the plaintiff? Was not the disability there the causa causans, as in Baker's Case (1922) 1 KB 361 the death was? These distinctions between causes can be elusive. They may be unreal. But they have been resorted to by courts for the solution of questions such as arise in this case. I have dealt with them at such length out of respect for those who find them helpful, and to show why I do not. (at p596)
16. Damages are given as compensation for the consequences of a tortious act when the harm is of a kind that a reasonable man could have foreseen. Consideration of cause and consequence are thus necessarily involved in the assessment of damages. But in cases such as this the question is not whether a harm that the plaintiff has suffered is, in the relevant sense, a consequence of the defendant's negligence, but whether an advantage that the plaintiff has gained is to be regarded as mitigating that harm. Causal considerations cannot be decicive of the latter question, unless there be a general rule of law that all benefits, or foreseeable benefits, received by an injured person because of, or as a consequence of, his injury are to be set-off against the damages he can recover from a wrongdoer. In my view, there is no such rule. Cases under Lord Campbell's Act, such as Jenner v. Allen West & Co. Ltd., (1959) 2 All ER 115 , turn on considerations arising from the terms of the statute. But that is not the question here. We should gratefully appreciate Viscount Simond's recent reference to the "grave danger of being led astray by scholastic theories of causation and their ugly and barely intelligible jargon" (Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd., (1961) 2 WLR, at p 136 . I therefore go to another approach that has been taken. (at p597)
17. It is generally accepted that aid given by friends and philanthropic persons to ameliorate the lot of a sufferer ought not to be taken into account in assessing damages. Subscriptions from members of the public or workmates to a fund for the dependants of men killed in an accident, for example, have for various reasons been disregarded in actions under Lord Campbell's Act (GreymouthPoint Elizabeth Railway & Coal Co. v. McIvor (1897) 16 NZLR 258 ; Redpath v. Belfast and County Down Railway (1947) NI 167 ; Baker v. Dalgleish Shipping Co. (1922) 1 KB, at 380, 381 ; Peacock v. Amusement Equipment Co. Ltd. (1954) 2 QB, at p 354 ; Wilson v. Rutter (1955) 73 WN (NSW) 294, at p 298 ). My brother Fullagar said in Attorney-General for N.S.W. v. Perpetual Trustee Co. (Ltd.) [1952] HCA 2; (1952) 85 CLR 237 : " . . . it would surely be out of the question to reduce damages by a sum which some benevolent persons had collected for the benefit of a man crippled in an accident" (1952) 85 CLR, at p 292 . This applies even more cogently to damages for personal injuries than to actions under Lord Campbell's Act. For, if voluntary pecuniary aid may not be set against pecuniary loss, then even more surely it should be disregarded in reckoning damages which include compensation for pain and suffering and for deprivations or diminutions of what life has to offer. What has to be ascertained under Lord Campbell's Act is the pecuniary loss resulting from the death. There may be no such loss : there could be a gain. But damages for personal injuries are not to be assessed by constructing a profit and loss account. The compassion, kindness and sympathy of friends and the gifts of charitable persons cannot be weighed against pain and suffering. True it is that a defendant may show that a plaintiff, prevented by his injuries from carrying on his previous vocation, has nevertheless found other, and perhaps more remunerative, employment. A man who loses an arm may earn afterwards more money than he did before ; but he has always lost, among much else, the capacity to work in any occupation in which two hands are needed. The victim of a tort is never in the eye of the law a gainer. The balance of account is never in favour of the wrongdoer. (at p598)
18. The benefits of benevolence do not reduce damages recoverable. That may be accepted. Why is this? It is not the result of a distinction between benefits given voluntarily and benefits paid for. Indeed one reason given for disregarding insurance moneys is just the opposite, namely that they have been paid for by premiums : and, relying on this as an analogy, a distinction has in some cases been made between contributory and non-contributory pension schemes that are incidents of contracts of service. That distinction, however, seems unsound, for the right to have a pension or the chance of having a pension from his employer is part of what a servant earns by his labour. Brereton J. has discussed this, I think convincingly, in Watson v. Ramsay (1960) 78 WN (NSW) 64 . (at p598)
19. The most satisfying of the reasons that have been given for refusing to diminish damages because of voluntary gifts is that they are given for the benefit of the sufferer and not for the benefit of the wrongdoer. That, it may be said, cuts across the principle that damages for negligence are compensatory and not punitive. It may be that, at all events since Bradburn's Case [1854] EngR 538; (1874) LR 10 Ex 1 , there are some limits to strictly logical applications of that principle. But I do not think the two propositions necessarily come into collision. A donor can say who is to benefit by his generosity. If, out of sympathy for a man unfortunately responsible for a motor accident, someone gives money to the victim, stating that he does so in the interest of the tortfeasor and to diminish the damages he must pay, effect must be given to his intention. If, on the other hand, the donor's expressed intention is that the injured man shall enjoy his bounty in addition to whatever rights he may have to recover damages from the tortfeasor, effect must in my opinion, be given to that intention. And if nothing be said, the intention of the giver may be inferred from the circumstances. There are statements in some of the cases that a wrongdoer ought not to be allowed to reduce his liability because of the generosity of others. These have been criticised as importing a punitive consideration into the assessment of compensation. That, of course, would be wrong. But as I understand the proposition it is really elliptical and means that the generous giver intended his generosity to benefit the injured man and not to affect the wrongdoer's liability, and that, that being the nature of his gift, it would so take effect. (at p599)
20. Courts in the United States have met these problems. Their decisions are not uniform in result or in reasoning; and, although I have found them helpful, I need say no more of them than that they are usefully collected and discussed in the annotations to Cunnien v. Superior Iron Works Co. (1921) 18 Am LR 667 and Shea v. Rettie (1934) 95 Am LR 571 , and in the Law of Torts by Professors Harper and James (1956) Vol. 2, para. 1337-1350 (which reproduces an article in 27 New York University Law Review, 537) and (1949) 63 Harvard Law Review, 330 and (1954) 68 Harvard Law Review 366) (at p599)
21. In Gourley's Case [1955] UKHL 4; (1956) AC 185 , Lord Goddard said: "A plaintiff may seek to increase or a defendant to diminish damages by items which are held to be too remote" (1956) AC, at p 207 . It was argued here that an invalid pension is an item that is too remote: but merely adopting this description is not enough. Remoteness - the term sanctioned by high authority and long usage in considering for what consequences of a wrongful act the wrongdoer is responsible - states, but does not define, a criterion. In the present context it is a description of what is irrelevant: it does not provide a test of relevancy. (at p599)
22. What finally emerges? Phrases such as causa causans, collateral matter and so forth being discarded, how are we to ascertain what is remote? Is there a governing principle in all these cases? So far as any rules can be extracted, I think they may be stated, generally speaking, as follows: In assessing damages for personal injuries, benefits that a plaintiff has received or is to receive from any source other than the defendant are not to be regarded as mitigating his loss, if: (a) they were received or are to be received by him as a result of a contract he had made before the loss occurred and by the express or implied terms of that contract they were to be provided notwithstanding any rights of action he might have; or (b) they were given or promised to him by way of bounty, to the intent that he should enjoy them in addition to and not in diminution of any claim for damages. The first description covers accident insurances and also many forms of pensions and similar benefits provided by employers: in those cases it is immaterial that, by subrogation or otherwise, the contract may require a refund of moneys paid, or an adjustment of future benefits, to be made after the recovery of damages. The second description covers a variety of public charitable aid and some forms of relief given by the State as well as the produce of private benevolence. In both cases the decisive consideration is, not whether the benefit was received in consequence of, or as a result of the injury, but what was its character: and that is determined, in the one case by what under his contract the plaintiff had paid for, and in the other by the intent of the person conferring the benefit. The test is by purpose rather than by cause. (at p600)
23. Nevertheless it is not, I think possible, to enunciate an exhaustive rule for all parts of this vexed topic. And the questions that arise can never be determined in the abstract. Each must depend on the terms of the particular contract, pension scheme, charitable benefaction or statute governing the benefit conferred. In this case it is the Social Services Act. Invalid pensions are one of the benefits - in an inexact sense a right - that Australians have. No doubt all such social services go to make up the economic and social conditions in which monetary compensation must be weighed. What money will buy, what must be paid for and what may be had free, and what opportunities for rehabilitation and adjustment are available for all citizens are matters of which judges and juries can never really be ignorant or unmindful. Thus in 1951 Lord Normand said: "no doubt the recent expansion of the social services must be set against the depreciation of the pound sterling" (Glasgow Corporation v. Kelly (1951) 1 TLR 345, at p 347 ). But to say this is not to say that the amount of a pension is relevant or to be taken into account in determining the damages recoverable from a tortfeasor. I have already said that, in my opinion, invalid pensions granted to persons not permanently blind should be disregarded in assessing damages because they are discretionary and are variable according to the damages recovered. Pensions to permanently blind persons are also, I think, to be disregarded; but for a different reason. That reason is that the manifest policy of the Act, as I read it, is that a blind pensioner is to have his pension in addition to whatever rights of action or proprietary rights he may have. The distinction between blindness and other disability is that the Commonwealth when granting a pension undertakes in the one case an obligation that cannot afterwards be diminished if compensation be recovered from the wrongdoer: in the other case it may be. But in neither case is the wrongdoer's liability reduced: for the pension is not given by the Commonwealth to aid him. This view is in accordance with the reasoning of Jacobs A.J. in Cook v. Marshall Sawmilling Co. Pty. Ltd. (1959) 77 WN (NSW) 40 to which I have already referred, and with which I generally agree: it accords too with the decision of Wanstall J. in Fraser v. Maxwell (1959) Qd R 322 . In Francis v. Brackstone (1955) SASR 270 Ross J. was not concerned with a pension but with voluntary payments made by an employer to a servant during incapacity. His Honour, however, considered some of the matters that I have. And I am glad to find that, subject to what I have said in Paff v. Speed (1961) 105 CLR 549 , his conclusion, is generally consistent with mine. In Baker v. Graham (1961) SR (NSW) 609 the Supreme Court of New South Wales considered similar questions. As appears from what I have said, I do not concur in their Honours' reasoning at all points; but in very many respects my view does not differ from theirs. (at p601)
24. The other grounds of appeal may be briefly disposed of. The learned trial judge stated that he did not overlook the incidence of tax in assessing the plaintiff's future loss from incapacity to work. And, in assessing his loss under that head up to date of the trial, he discounted the claim based on an average weekly earning of 22 pounds and reckoned it at 20 pounds per week. It seems to me that in the circumstances that ground of appeal was not made out. In all the circumstances the sum at which his Honour assessed the plaintiff's damages was not, I think, excessive. (at p601)
25. I consider that the appeal should be dismissed. (at p601)
ORDER
Appeal dismissed with costs.
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