Wilson v McLeay [1961] HCA 56; (1961) 106 CLR 523 (15 September 1961)

HIGH COURT OF AUSTRALIA

WILSON v. McLEAY [1961] HCA 56; (1961) 106 CLR 523

Damages

High Court of Australia
Taylor J. (1)

CATCHWORDS

Damages - Personal injuries - General - Special - Plaintiff seriously injured in motor accident - In hospital outside home State - Visits to her by parents from home State - Whether their travelling and hotel expenses should be taken into consideration in assessing damages - If so, whether should be included in special damages or whether some allowance should be made in respect thereof in assessing general damages.

HEARING

Brisbane, 1961, September 13, 15. 15:9:1961
ACTION for Trial.

DECISION

September 15.
TAYLOR J. delivered the following written judgment: -
The plaintiff, who is a young woman nearly twenty-two years of age, sues the whilst she was a passenger in a motor car of which the first-named defendant was the registered owner and which the second-named defendant was driving at the time of the accident. The plaintiff is a resident of the State of Queensland and the two defendants are residents of the State of New South Wales. Liability is admitted and the only issue is that of damages. (at p524)

2. The accident happened whilst the plaintiff was holidaying in Sydney and her injuries were sustained when the motor car in which she was travelling collided with an electric light pole in Military Road, Neutral Bay. This was on 18th April 1960. She was thrown through the windscreen and seriously injured. The injuries which she suffered were extensive lacerations to the face including a laceration running for six inches across her forehead to the left eye, one about an inch long extending to the left eye and another which involved the left eyelid. There were also a number of abrasions and incisions mainly on the left side of the face and chin. Additionally, she sustained a comminuted oblique fracture of the lower third of the left humerus and a fracture of the right femur. She also had comparatively minor injuries to the left foot. After the accident she was taken to the Mater Misericordiae Hospital at North Sydney where she remained until 15th July 1960. On the latter date she was discharged and taken home to Queensland by her mother who had come to Sydney for that purpose. (at p525)

3. Altogether the plaintiff was in hospital for something over twelve weeks on this occasion. Her right leg underwent traction for ten weeks of this period and her arm was in plaster for six weeks. Her facial injuries were treated by extensive plastic surgery and when she was finally discharged she left on crutches and with the greater part of her face in bandages. (at p525)

4. There is no doubt that the plaintiff's injuries were serious and that she is left with considerable permanent impairment. The fracture of the arm has firmly united and she will be left with no disability as a result of that injury. But her leg, although firm union has taken place, reveals substantial angulation at the point of the fracture with the result that there appears to be considerable bowing of the thigh. Additionally the process of union has resulted in a shortening of the leg by as much as an inch or an inch and a quarter. According to the evidence the result will be that additional strain will be thrown on the joints of the leg and upon her lower spine. This, it is said, will render her more susceptible to the results of arthritic changes and periods of strain will probably result in backache. Also, as a result of the shortening of the leg she walks, and will continue to walk, with a perceptible limp. This, and the more general consequences of the shortening of the leg, may be alleviated by the wearing of a built-up shoe at appropriate times. Altogether the permanent loss of function of the right leg is estimated at something between twenty-five and thirty per cent. No suggestion is made that the plaintiff's injuries will result immediately in any future economic loss in the field of employment for which she has qualified herself and in which she is at present engaged. But it is clear that the condition of her leg means that she will be at some disadvantage in the general labour market if she wishes to advance herself. The injury to the leg was serious, it has resulted in a substantial loss of function which must, to some extent, limit her activities, the probable consequences of her general physical condition in the future are not without significance and it is said that the angulation of the fracture has produced a noticeable deformity. (at p525)

5. The plaintiff's facial injuries have left her with extensive scars and notwithstanding a further operation performed in Sydney in December 1960 for the purpose of reducing them they are still visible. Furthermore, the healing process which followed the treatment to the left side of the face has resulted in some alteration of the natural contours of the face. The result is that there is some lack of symmetry in the face itself. There was evidence, which was not challenged, that prior to the accident the plaintiff was a most attractive looking girl and it was said that the injuries have resulted in a substantial change in her appearance. In addition to the matters already mentioned it is said that her facial complexion has also changed. Notwithstanding this the plaintiff has by no means lost all of her attractiveness and her temperament has permitted her to adjust herself in a considerable measure to her present condition. But she will bear the result of these injuries for the rest of her life and, in a young woman, are such as to call for substantial compensation. Taking into consideration the various matters to which I have referred I assess the plaintiff's general damages at 6,000 pounds. (at p526)

6. In addition the plaintiff proved a loss of wages resulting from the accident between the time of the injury and 21st February 1961 amounting to 408 pounds and various items of special damages for hospital and medical expenses, damages to her clothing and other incidental items amounting to 604 pounds 9s. 0d. (at p526)

7. A further claim was made in respect of three items totalling 267 pounds 5s. 0d. In the main this amount represents the expenses incurred by the plaintiff's mother on two occasions and by her father and mother on one occasion in coming to Sydney from Queensland to see her. The first occasion was immediately after her injury when her mother flew down to Sydney while the plaintiff was still unconscious. Her mother remained on that occasion for a fortnight. A few weeks later her father and mother flew down to Sydney and remained for a week. Finally her mother again came to Sydney for the purpose of taking her home again, when she was discharged from hospital on crutches. The three items in question related to aeroplane fares to and from Sydney on the occasion of these visits, accommodation in Sydney and, in addition, the cost of trunk line telephone calls to the hospital whilst the plaintiff was an inmate. The plaintiff was asked by her counsel whilst she was in the witness box whether she would undertake to make a refund to her parents in the event of an amount representing these items being included in the damages awarded. She said she was prepared to give such an undertaking and, then, on the authority of observations made by Paull J. in Schnieder v. Eisovitch (1960) 2 QB 430 I was asked to include this expenditure. The facts proved in that case showed that the plaintiff and her husband were involved in a highway accident whilst motoring with the defendant in France. The husband was killed and the plaintiff was injured. On being told of her husband's death the plaintiff suffered serious physical consequences and her brother-in-law and his wife came to France from England for the purpose of taking the plaintiff home to England. In her claim for damages in the subsequent action the plaintiff sought to include the expenses incurred by her brother-in-law. Paull J. found that the services so rendered by the brother-in-law and his wife were reasonably necessary as a consequence of the defendant's wrong and that the services so rendered were reasonable and, upon the plaintiff undertaking to reimburse her brother-in-law, he included the amount in question in his award. The course which the learned judge took was the subject of some mild criticism in the Law Quarterly Review (1960) 76 LQR 187) and it seems to have met with the disapproval of Diplock J. in Gage v. King (1961) 1 QB 188 . With respect to Paull J. I also feel difficulty in adopting his formula with respect to these items. Indeed, an acknowledgment that the extraction of such an undertaking is necessary as a condition precedent to recovery, constitutes, it seems to me, a confession that a plaintiff has no right at all to recover such expenditure. But my dissent from Paull J. does not mean that I think that the necessity for some such expenditure should not be taken into account in assessing general damages. As was pointed out in Graham v. Baker [1961] HCA 48; (1961) 106 CLR 340 a plaintiff's entitlement to damages accrues when he is injured by the negligence of the defendant. And if an assessment of damages were then to be made it would, it seems to me, be proper, in a case such as the present, to make some allowance to permit the plaintiff to provide for the reasonable attendance of her parents. She was in hospital many hundreds of miles from home, her injuries were serious and such as to call for such comfort and consolation as her parents' reasonable attention could provide. Of course, if at the trial it appeared that no expenditure for that purpose had, in fact, been incurred no allowance should be made. But that is not the position in the present case and the assessment of general damages should include some allowance on this account. I am fortified in this conclusion by the reasoning in the unreported case of Morgan v. Hosking (1960) 104 CLR 667 (note) . That was a case where a young girl, fifteen years of age, was so badly injured that she was left "an inert paralysed wreck" and it was likely that the constant and expert nursing which she needed would require her confinement to hospital for the rest of her life. In dealing with the question of damages this Court considered that "she should be in a position to pay the expenses of the constant visits of her parents which, as the evidence shows, mean so much to her". Her parents' visits were no doubt considered to constitute part of the care and attention rendered necessary by the consequences of the defendant's negligence. The present case, though it does not present the tragic features of that case, is somewhat special and, according to the medical evidence, it was of some importance in the alleviation of her condition that she should have the comfort and assistance of her parents. Having listened to the evidence, I do not think the claim under this head should be quantified merely by taking the precise amount of the expenditure incurred; I think it will be sufficient to add to the amounts already specified the sum of 200 pounds. In the result I assess the plaintiff's damages at 7,212 pounds 9s. 0d. and there will be judgment for the plaintiff for that amount. (at p528)

ORDER

Judgment for the plaintiff for 7,212 pounds 9s. 0d. with costs.