Terry v Leventeris [2011] HCATrans 274 (29 September 2011)

Last Updated: 6 October 2011

[2011] HCATrans 274

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A12 of 2011

B e t w e e n -

CHRISTOPHER JAMES TERRY

Applicant

and

NICHOLAS LEVENTERIS AS REPRESENTATIVE OF THE ESTATE OF SOPHIA LEVENTERIS (DECEASED)

Respondent

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 29 SEPTEMBER 2011, AT 11.52 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR M.C. LIVESEY, QC, for the applicant. (instructed by Hunt & Hunt Solicitors)

MR R.J. WHITINGTON, QC: May it please the Court, I appear with my learned friend, MR B.J. KRUPKA, for the respondent. (instructed by Wallmans Lawyers)

MR WALKER: May it please your Honours. The evidence of Mr Daniels’ affidavit shows that most of the claims administered in this State include a component which would be governed by the law that raises the issues in this case. That does not mean that most cases raise this issue. It means that there is a claim of a kind that needs to comply with the law in question. At the relevant time it was, as your Honours know, subsection 24H(3) of the Wrongs Act 1936 (SA) which has been materially re-enacted thereafter. It is alive, an important issue. The scale of things is an annual scale of the kind of cases that would be governed by the rule in question of about $50 million.

The question therefore arises, what does this case throw up in relation to the meaning of the statutory provision because it is, in our submission, that this is a case in many ways of a usual kind, but of a kind urgently needing the intervention of this Court, namely there was a statute governing, and it has not been straightforwardly observed in the fashion that its terms call for.

BELL J: Can I just take this up with you? If one looks to the Court of Appeal’s judgment at application book 40, paragraph 37, the court notes, one would think unexceptionally, that what is important is to apply the statutory test, and a test is stated - - -

MR WALKER: They accurately set it out, yes.

BELL J: Now, I appreciate there are matters that you say underlie its application to the facts of this case, but what do you say stands in the judgment of the Court of Appeal in the nature of error?

MR WALKER: That is the page I was going to start with too, your Honour, but it is the next two paragraphs that really are the critical demonstrations of error. In the next two paragraphs, there is, in our submission, an elision of a factual difference over the relevant period following the accident in the findings of fact at first instance, to which I will come, and second, there is an acknowledgment – see paragraph 39 in particular – that the trial judge did not make findings enabling the statutory integers to be answered or even addressed.

BELL J: But that does not raise the broad point of principle.

MR WALKER: Nor does a recitation and an accurate paraphrase of a statute mean that there has been no error in the duty to simply apply the statute. It can be no answer that the Full Court, as we submit, has not applied the statute to say, well, the Full Court recited the statute and accurately paraphrased it. So it did, in paragraph 37. In our submission, it is not a question of underlying facts or any subtle nuances that demonstrates the error. Could I highlight it in particular by going first to paragraph 38 on page 40 of the application book at about line 38. You will see that following at three months where there is all of:

housework, domestic chores, bathing, dressing and grooming –

from which the deceased, injured woman was prevented from performing, on her own account “almost totally dependent on her husband”. Thereafter – and “thereafter” of course is what drives for nearly eight years the award on this account – thereafter, his Honour agreed in by the others in the Full Court says as follows –

thereafter –

that is following three months –

she required the assistance her husband gave her –

and that is intended to be their Honours’ summary or paraphrase – they are not purporting to alter any of the findings of fact in the court below and, in our submission, as soon as one goes to page 14 of the application book, paragraphs 35 and 36, one sees not only error at first instance, but also a finding of fact that shows that error at both levels. This is in paragraph 35 in particular. The finding of fact, and by contrast of what the statute required, proceeds as follows, at about line 12 or so:

in the three months . . . almost totally dependent on her husband, not only for housework and other domestic chores but also for bathing, dressing and grooming.

That is what repeated in paragraph 38 in the Full Court. Then, significantly, the finding with respect to the kind of activities from which she was precluded by her accident-caused condition. At first instance, the finding was as follows, and I quote –

Thereafter, her condition improved somewhat and she resumed some housework and domestic chores but her husband continued to do much of such work, including some cooking –

We interpolate, probably some eating as well, and that is the significance –

She was able to manage personal grooming. Both Mr and Mrs Leventeris did the housework and other chores significantly more slowly –

et cetera, so both of them are, to use the language that one sees in the older cases, there is some give and take. It is less slightly give and take by both of them, but it is still contributions to the household.

Our point is this. That is a finding of fact in no way departed from in the Full Court with respect to statutory wording which quite plainly provides no footing for what might be called a legislative reversal of CSR v Eddy. The significance is this. In CSR v Eddy, there was a consideration of the common law in light of what could be regarded as both black-letter jurisprudential questions going back to the compensatory principle, and the distinction between general damages for losses that could not be financially measured, and then losses of a kind which could be, as in Griffiths v Kerkemeyer, measured by the reasonable market price subject to the usual qualifications about the nature of the market. But in CSR v Eddy, of course, the important finding and the majority reasoning included a refusal to extend, as it is sometimes called – whether by way of exact analogy or by some actual incremental move – to extend Griffiths v Kerkemeyer on grounds it included policy doubts as well.

The legislation in question in this case reflects the legislative enunciation of binding policy, that is, statute law, as well as obviously a response to what had been perceived to be - whether it be accurate or not, it does not matter - supposedly overgenerous awards in this area in some cases of a sufficient substance financially to attract parliamentary attention. The politics does not matter. What matters is the perceived mischief from a legislative response is about limitation. The limitation is expressed, we submit, in words which positively require distinction between the provision of services for others and services for oneself, talking from the point of view of the injured plaintiff. It is services for oneself that may be the subject of the capped provision – capped in this case by reference to average earnings – not services to others.

BELL J: Can I just take this up with you? The factual findings going to this aspect of the claim to which you have taken us at paragraph 35 of the primary judgment are expressed in relatively broad terms, but one finds the primary judge’s finding at paragraph 45 on the next page. That is expressed with respect to the deceased plaintiff’s needs. So one does not find in, as I read it, the primary judgment or in the Full Court, support for the contention that you advance that in reality, there is a component in here for the services she was providing to the husband.

MR WALKER: May I try and persuade your Honour to flip that exactly oppositely in this sense. That general language of conclusion in 45 which refers to Mrs Leventeris’ varying needs is of course a summary or a conclusion about findings of fact that one finds, I think not only principally, but wholly in paragraph 35, and what one finds in 35 is a non-discrimination of a kind that the statute requires, particularly construed in light of the common law which both presented the mischief and provides a background against which construed the statute, which distinguishes between services to oneself and services to others.

The housework and other domestic chores, which are referred to in paragraph 35, and the diminished capacity to perform them is of course within the description of Mrs Leventeris’ varying needs in paragraph 45. The varying is the up and down depending upon physical condition from time to time, but the needs quite plainly include what is referred to in paragraph 35, and we know that it includes past the three weeks because that is the huge bulk of the rather sizeable benefit to the estate, Mrs Leventeris having died.

We know as well by a distinct finding of fact in 35 that as between that which was at least as much for others as for herself, namely the household chores, we know that as well as that, there was consideration given to what was only for her – bathing, dressing and grooming – and that she could do that.

BELL J: Where do we get any detail about the proposition that you advance that doing household chores was at least as much for others as for herself? The evidence was that she was a scrupulous housekeeper - - -

MR WALKER: She did the lion’s share, is the expression, also rendered as 80 per cent. Your Honours, there is no indication that she was not doing this for the benefit of her husband.

BELL J: These are difficult issues though, and if one really wants to tease out the matters that you are raising, surely one would want a better foundation. It is not enough to put that in a household in which there is more than one person any doing of household chores necessarily inures to the benefits of the others, since one would assume that a tidy housekeeper might do that work in any event.

MR WALKER: There is housework and housework. Some people tidy when it is not necessary in my observation, your Honour – well, they call it tidying. But cooking is different. Mostly, if it is any good it is consumed and mostly it is not consumed by solitary sitting in separate rooms from each other. There is every indication here that it was the ordinary case which actually does not lend itself in any particular piece of litigation to a Taylorist time and motion schedule of who is doing what and “I cook five potatoes, and you only ate one of them” sort of thing.

This was, to use the language used before this Court, the ordinary give and take of two people in a household where one is not to suppose what I think Justice Gaudron called gross incompetence or selfishness on the part of one of them – I think your Honour was talking about the male partner. Your Honours, this is, as it were, the ordinary case, and this Court is most unlikely ever to be presented with stopwatch precision.

What we have instead in paragraph 35 at first instance is a finding which very evocatively marks off that which we know is for her, not for others as well, and says she is able to do that and so you only have a class where the plaintiff should have failed rather than should be insulated from appellate review by the failure to make more detailed facts because the statute, 24H(3), clearly enough by what must be regarded as the pleonastic recognition for the sake of emphasis of that which is required in (a) and necessary in (b) clearly enough is not talking about that which people in a household do for each other. There are no - - -

FRENCH CJ: I am sorry, I am just looking at paragraph 47 of your submissions. Is this really a case about the failure of the court below to apply the statute to the particular facts?

MR WALKER: We submit that the findings required by the statute meant that it was a transitional stage only, that is, we would not say it was irrelevant but it was only transitional to what the statute called for to note that Mrs Leventeris was not as capable as she was to do household chores after the accident - - -

FRENCH CJ: You say they have not applied the statute. Let us accept for the sake of argument they have not applied the statutory criteria.

MR WALKER: The statute requires by an ordinary reading of both paragraphs (a) and (b) of the relevant provision that one leaves out of account that it simply will never come within the purview of this permitted head of recovery what a spouse is doing for that spouse, for himself or herself depending upon the sex of the injured plaintiff.

Now, in our submission, it is plain to demonstration that there has been no such finding in this case. It is also plain to demonstration that this is a case where the husband was plainly benefiting to some degree pre-accident by the 80 per cent performance of household work by the wife. After the accident, he is probably, if I may put it this way, pulling his weight a bit more. They were both on disability pensions, so I do not mean any personal criticism when I say that, but that only highlights a failure to make the findings that the statute requires because the statutory test must preclude compensation for being unable to provide what at common law – see CSR v Eddy – would not be available and which this statute plainly limits further by applying a financial cap.

FRENCH CJ: They got it wrong on the facts in this case on that basis. They failed to apply the statute to the particular facts of the case on your characterisation of the deficiencies in the findings. Does that raise a question of general principle? It does not really raise the question of statutory interpretation, does it?

MR WALKER: No, I cannot put it – we do not seem to have any difference, for example, on the written submissions between us about statutory interpretation.

FRENCH CJ: So, is it really a sort of visitation case?

MR WALKER: To a degree, it is. It is damned if we do, damned if we do not, in this regard. It is, of course, of general importance - indeed, axiomatically of general importance that statutory tests be applied and that where it can be seen as a failure to do so either by omission or mistaken direction, the former may not depend upon interpretation, the latter may well. In each case, something of, in our submission, self-evidently great public importance, unless it be a very obscure statute, emerges of failure for the law to be observed, particularly in regard to how judicial determination proceeds.

It is for those reasons that, in our submission, it is not mere visitation - it is visitation of a special kind, namely, this is an example of how not to do that which is uncontroversially called for as a matter of interpretation. So, I accept, indeed, I think I am going to try and embrace that there is no interpretation crux or puzzle or difficulty calling for this Court to resolve. Rather, there is a failure at the threshold to enter in upon the findings of fact that are requisite in order for those straightforward rules to be observed. That is the way in which we put the public importance of the matter.

In terms of what might be called “legal disputation” it is difficult to resist drawing to attention on page 85 of the application book footnote 32 of

our learned friend’s written submissions where, as it were – and we are happy to point this out - there may be on the way in which our friend has put it, there may well be a matter that obviously requires this Court, no other court is in a position to pronounce upon Vail v Formato which is also a decision of the Full Court.

We, with respect, submit that there is nothing in Van Gervan v Fenton in this Court’s reasoning in the majority including Justice Gaudron in that and Justice Brennan, there is nothing that would suggest that Vail v Formato is wrong in the proposition that, in our submission, one would gather from a matter of ordinary reasoning, see page 66 in our written submission at about line 20 in 43.2. If there is a “typical rearrangement of domestic chores” then hitherto in this State it has been understood that that would not represent what I will call Griffiths v Kerkemeyer the statutory analogue head of claim. If that is all one has, one cannot know that there has been compensation for the need that has arisen, that is the loss that has been created by reason of an inability to look after oneself, rather than others, or rather than contributing to common chores.

BELL J: I think in this State Sullivan v Gordon was always resisted.

MR WALKER: Yes. May it please the Court.

FRENCH CJ: Now, you seek the grant of special leave on the basis of an undertaking to pay the respondent’s costs in any event?

MR WALKER: Yes, that underlines, obviously, what we accept and declared were the test case nature of it.

FRENCH CJ: Yes, thank you, Mr Walker. Yes, Mr Whitington.

MR WHITINGTON: If the Court pleases, in our submission, this matter is not a fit vehicle for special leave as, we say, is demonstrated by my learned friend’s oral submissions in that, essentially, what the applicant seeks to agitate are factual questions which have either been decided against it by two courts below or which were not agitated at all at trial. Therefore, there is no sufficient basis in the findings of the court to underpin the questions that might be sought to be agitated.

If we understood my learned friend in his oral submissions, and I must say we found it difficult to extract the point from the written submissions, with respect, my learned friend may seek to raise two questions arising out of the judgment below. The first is, is it an error to compensate a plaintiff for the loss of a capacity to provide services to others. If that is the point sought to be raised, that is decisively determined by CSR v Eddy. The plaintiff has no right to an award of damages to compensate the loss of provision of services to others.

The other point that may be sought to be raised is this. Is it an error to award a plaintiff damages equivalent to the cost of services to satisfy a need, an accident-created need in the plaintiff, which services provide a kind of commingled or mutual benefit to another person in the household. We say that again is decided decisively against the proposition by CSR v Eddy because CSR v Eddy says that if the plaintiff has an accident-generated need, then they are entitled to compensation and the fact that there might be collateral or mutual benefits falling out of that provision of services to somebody else in a household should be neither here nor there.

The Court will remember that in CSR v Eddy the Court made the point that households are not stable and so if, for instance, it would have been said that a plaintiff might benefit from services provided gratuitously by members of a household who might move on, that should be discounted. Likewise, if it is to be said that a plaintiff’s damages to compensate for a need to be – the services should be discounted by the fact that the services rendered might benefit somebody else in the household, again it can be said that person might move on.

BELL J: Can I just interrupt for a minute? I think Mr Walker’s further point is in light of the provision of the Wrongs Act, what is required is an exercise more elaborate than perhaps might be absent that statutory provision to direct attention in a circumstance such as the findings of the primary judge at paragraph 35 to the necessity for the plaintiff to require services as – so that there is a test of necessity introduced under the sub 2(b).

MR WHITINGTON: But, with great respect, we say that is no more than a repetition of the common law. If the Court could turn up the section – the Act – the Court has it in various places but, in our submission, in the application book at page 78 in footnote 2 subsection (1)(a) and then critically subsection (2) and subsection (3). Now, our learned friends submit and we agree that this is a section founded on the common law and one sees that, for instance, from subsection (2). Damages awarded:

to allow for the recompense of gratuitous services -

and so on. It proceeds from the premise that there is a common law right to those damages. Now, the common law right to those damages can only exist where there is a capacity, an accident-generated incapacity, which results in a need. Subsection (3) says that the court may only make an award if, first of all:

the gratuitous services are reasonably required by the injured person –

Well, that is a reflection upon the law.

FRENCH CJ: Can only make an award “in excess of” the prescribed limit.

MR WHITINGTON: In excess of the prescribed limit, yes, and it would be necessary if the services were not provided gratuitously by a close relative to engage another person. The concept of “necessity” there is simply saying that assume that the services actually or hypothetically are not provided, would it be necessary for them to be procured from another person first of all? Well, if the services are necessary in the first place, they are reasonably required, it would be necessary to procure them from somebody else.

There are essentially three categories of provider indicated here: a gratuitous provider who is a close relative, in which case compensation follows; a non-gratuitous provider through the market, in which case compensation follows; or thirdly, a gratuitous provider outside the stipulated claims, such as another close relative or a friend or a service like Meals on Wheels, which is gratuitous, in which case compensation would not follow.

None of that raises any question of principle and to the extent that my learned friend says that the factual findings did not address that question we say two things. First, my learned friend has picked on a particular passage in a collocation of findings and one must read the relevant finding in context. Secondly, there was no suggestion in this case that there was any other available person to provide the services gratuitously.

The case was conducted on the basis that the wife and the husband lived in the household and it followed, prima facie, that if anybody was going to provide services gratuitously it would be the husband. If there was a need and he did not provide, they would have to come through the market. There was no suggestion in the case at trial that there was someone else available to provide those services. So against that background his Honour the trial judge’s findings at application book 14 and 15 are quite orthodox and one cannot start and stop with paragraph 35, one must go then to paragraph 36:

I find that, as a result of the defendant’s negligence, [the plaintiff] became incapacitated to such an extent that she needed the assistance which her husband gave her. The assistance given by her husband was reasonable in the circumstances.

It may be one would like to see a more elaborate finding more closely scrutinising each and every aspect of the housework or the need and so on, but this is an adequate finding upon which this Court can fairly assume that his Honour came to a conclusion that there was a need for the services provided. It then goes at paragraph 39:

For the first three months . . . [the plaintiff] was almost completely dependant on her husband. Had he been unable or unwilling to assist, she would have had to engage someone to attend to most of her personal and domestic needs in that period.

Then paragraph 40:

once his late wife’s capacity had become more or less stable, he was spending about eighteen to twenty hours rendering the necessary domestic assistance.

Then paragraph 41 and paragraph 45. If you read those conclusions compendiously it is plain that his Honour has addressed himself to the question of both the underlying need of a reasonable requirement for the services and the necessity that they be provided by a third party provider if the husband did not do it. Minor issue is taken with the reference to Mr Richter’s evidence about 11 hours, but in the scheme of this case that is neither here nor there.

If the Court then goes forward to the reasons of Justice Gray in the Full Court and comes to paragraph 37, he correctly recites the limbs of the test. In paragraph 38 he broadly covers the ground I have just covered in those findings, so he has addressed his mind to the correct findings of the trial judge, and then he says this at 39:

It is implicit in the Judge’s findings that –

We might grab at this one –

he considered that gratuitous services were provided -

Well, in fact that was not implicit, that was explicit in paragraph 36 –

that they were reasonably required –

Well, that was also an explicit finding, and then – and this is implicit:

that if the husband did not provide those services it would be necessary to pay a person to provide those services.

That is the clear effect of what his Honour has found. Against that - - -

BELL J: It would almost follow on that view that upon a finding that services were reasonably required, the balance of subparagraph (b) in the provision would be met.

MR WHITINGTON: Exactly, your Honour, except for this. It might be said if reasonably required, the services are reasonably required it would be necessary to meet the plaintiff’s need, somebody has to provide them. The assumption is that the close relative does not or cannot. What then follows? If there is available another gratuitous provider it may be that there is a disentitlement to compensation but there was no suggestion here of any other gratuitous provider, so the question then becomes, is it reasonable to infer that they would be provided through the market?

That is the effect of the reasoning here and there was never any suggestion in this case that there was another gratuitous provider and if the Court wants to establish that they could turn to the notice of appeal to the Full Court, and it is quite revealing. It is at page 20 in the application book, and essentially it seeks to agitate questions of fact. The relevant ground is ground 5.

The only ground of appeal that might be said to have agitated in the Full Court an issue agitated on this application is ground 5.5 which is what I call the commingling issue. Well, it might be said to raise the commingling issue. If one comes forward to the proposed notice of appeal in this matter, one has that at page 54, and ground 1 simply seeks to reagitate a matter of fact and evidence. Ground 2 seeks to agitate matters of fact and evidence and finding. Ground 3 agitates matters of fact and evidence.

Likewise, grounds 4 until we come to ground 4.5, which again, might possibly be said to raise the commingling issue, but the commingling issue was never properly agitated at trial and without it being properly agitated at trial how can this Court conceivably be expected to carve up, as my learned friend said, the potatoes into the number that the wife cooked and the husband ate when that was never an issue at trial.

What is more we have been back to the written submissions and the oral submissions in the Full Court and we cannot see where this issue was ever addressed in the terms of the commingling proposition in the Full Court. So this Court does not have the benefit of any consideration of that question by either the trial court or the Full Court. So we say that there is no question of statutory interpretation raised here.

There is no question of fundamental principle arising out of Griffiths v Kerkemeyer or Van Gervan. I was going to take the Court briefly to CSR v Eddy just to say that the commingling issue was dealt with by Justice McHugh in that report at paragraph 115 in these terms. He said:

To the extent that his injury prevented him from performing these tasks and necessitated the provision of services from another person, there is no reason why he would not be eligible for Griffiths v Kerkemeyer damages at the market rate for those services. The same is true in relation to the domestic duties that he performed around the house. As the Federal Court of Australia said in v Frost, “[h]ere, the needs were the commingled needs of husband and wife, but no less the needs of the [husband] because they were in some cases mutual”.

We say, although that is not of course in the joint judgment of the Chief Justice and Justices Gummow and Heydon, that proposition is entirely consistent with the joint judgment and follows from it. So at that level no point of principle arises. Then my learned friend seeks to raise a matter of public policy concerning, as I understand it, the drain on the third party scheme in the State through awards of these kinds of damages. The Court has the affidavit in the application book at page 70 and the relevant evidence is in the exhibit at page 75.

If the Court would come for a moment to the column “Total Settlements with Gratuitous Services Payments” and over that period June 2003 to May 2011, would the Court accept my arithmetic that there are in total some 19,007 settlements? As for the total amount paid out, it is something in the order of $72.63 million and I think - - -

BELL J: I am sorry, you are looking at the June 2010 to May 2011grouping - - -

MR WHITINGTON: I am looking, your Honour, at the right-hand column, “Total Paid for Gratuitous Services”.

BELL J: Yes.

MR WHITINGTON: We have totalled those, your Honour, and I hope my arithmetic is correct, but a rough review suggests it is in the order of magnitude of $72.63 million and if you divide the number of total claims into that total payment of damages for this head of damages, the amount is a little under $4,000 per claim, which is around, in any event, the statutory cap of four weeks average weekly earnings. In other words, it cannot be said on this evidence that these types of claim are bleeding the fund and of

course there are many other claims in excess of the number of 19,007 where there have been no claims made or allowed for gratuitous service claims in any event.

BELL J: I think the point of this evidence was simply to illustrate that the determination of this case might have consequences rather larger than the $86,000 at issue between the parties.

MR WHITINGTON: Yes, and we accept that that was the point to justify the tender and we do not object to the material being before the Court of course, but we read it differently. We say when you understand it it suggests that the public policy issue is de minimus and that it does not justify this Court taking on what would otherwise be a very awkward case and would require this Court to have to trawl through the evidence and make its own - - -

FRENCH CJ: Enough of the in terrorem arguments, Mr Whitington. They usually do not cut much ice, but thank you very much.

MR WHITINGTON: If the Court pleases.

FRENCH CJ: Yes, Mr Walker.

MR WALKER: Your Honours, in our submission, the citation of Justice McHugh in CSR v Eddy, although his Honour’s reasons in large measure concord with those of the majority, is on a point where there is a difference in the nature of dissent. Second, in our submission, perhaps one thing that emerges from the way in which my learned friend has put it in address is that at page 40 of the application book, paragraph 37, what I earlier described as an adequate paraphrase perhaps does need to be looked at a little more critically because my friend has well elided that which was the very point argued in the Full Court by reference to the expression “rearrangement of the domestic burden”, an expression used in addressing the Full Court. At line 24 on page 40 you will see that the ellipsis practised by his Honour is to talk about:

gratuitous services provided were reasonably required –

There is an ellipsis because the statute, which you can conveniently find by turning back a page, talks about “reasonably required by the injured person”. Of course it is correct, as my learned friend has appropriately pointed out, that one sees in paragraph 40 on page 40 the expression “the needs of Mrs Leventeris” and one sees on page 41 the same expression in paragraph 43. Nonetheless, in our submission, the point was an important point, the point is a straightforward one of statutory interpretation and it certainly does not require trawling through the evidence. That is appropriately set out, the catch is fully displayed for that which is edible and that which is not, in paragraph 37 and 38.

BELL J: But when one goes back to the primary judge’s findings to the additional paragraphs to which Mr Whitington directed attention, whether there is some error in settling on the figure of 11 hours or not, it does seem tolerably clear that what his Honour was purporting to do there was to assess the hours of provision of services respecting the needs of the deceased plaintiff.

MR WALKER: No. Page 15, paragraphs 40 and 41. What his Honour is there referring to is “commercial cleaner or ‘helper’”, and then paragraph 41:

house-cleaning, shopping and laundry . . . preparation of an evening meal –

That is precisely what the Full Court in this State had earlier warned about simply assuming can be the subject of a Griffiths v Kerkemeyer, let alone a statutory award. It does have to be – it is for the plaintiff to prove what is the need of the plaintiff and it does not include, under the statute, if one goes back to the terms of the statute under paragraph (a) of subsection (3) the first limb:

gratuitous services are reasonably required by the injured person –

To use the relationship of this case, they are not the services of the husband to do for himself what the wife used to do for him.

BELL J: That is what I am saying. There is no suggestion in those paragraphs of that confusion.

MR WALKER: Well, there is instead a failure to make any distinction. There is a lumping together of those things which of their nature plainly are for at least both, they may be more for him or more for her depending upon the nature. That is for the plaintiff to show and it is for the court to require under the second limb in paragraph (b), the notion of it being a financial need under the statute to be compensated in favour of the plaintiff that if these services are not gratuitously provided there would have to be someone retained to do so. It simply does not survive a moment’s thought if one inserts the notion of the wife needing to hire someone to look after the husband because she can no longer do for him what she used to do. That is not what the statute requires or permits.

BELL J: There is nothing in the judgment that would lead one to conclude that that was the basis of reasoning.

MR WALKER: Well, that is why I say paragraphs 40 and 41 at page 15, “house-cleaning, shopping and laundry” and “evening meal”, plainly include for him. Now, one simply cannot read it to the contrary because she used to do 80 per cent of the housework. It is not suggested that that is because she was, as it were, the most demanding member of the household and it was her laundry, not his, shopping for her, not him, house cleaning only for her, not him, and above all cooking for her and not him. May it please the Court.

FRENCH CJ: Thank you, Mr Walker.

This application raises no question of the proper interpretation of the applicable statute, nor of the common law in relation to the award of damages for gratuitous services. It rather involves a complaint about the application of the principles and the statute to findings of fact which it is said did not meet the criterion which those principles and the statute imposed for recovery of damages for the provision of gratuitous services. Assuming that to be the case, the case does not, in our opinion, raise a question of principle or a question of sufficient importance to the administration of justice to warrant the grant of special leave. Special leave will be refused with costs.

MR WALKER: May it please the Court.

FRENCH CJ: The Court will now adjourn briefly to reconstitute.

AT 12.41 PM THE MATTER WAS CONCLUDED