Csr Ltd v Eddy

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,Gummow,Heydon JJ,McHugh J,Callinan J
• Judgment Date: 21 October 2005
• Neutral Citation: [2005] HCA 64,2005-1021 HCA B
• Docket Number: S523/2004 & S524/2004
• Date: 21 October 2005

[2005] HCA 64

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Callinan AND Heydon JJ

S523/2004 & S524/2004

Csr Limited & Anor

Appellants

and

Jarradd Eddy as Administrator Ad Litem representing the Estate of the Late John Thompson

Respondent

Representation:

D F Jackson QC with TGR Parker for the appellants in both matters (instructed by Makinson & d'Apice Lawyers)

M J Joseph SC with F L Austin and S P W Glascott for the respondent in both matters (instructed by Alex Stuart & Associates)

CSR Limited v Eddy

Negligence — Damages — Asbestos-related disease — Compensation for plaintiff's inability to provide domestic assistance to wife — Whether damages are recoverable where a personal injury prevents a plaintiff from providing gratuitous personal or domestic services for another person (‘ Sullivan v Gordon damages’) — Whether Sullivan v Gordon damages are analogous to Griffiths v Kerkemeyer damages — Whether Sullivan v Gordon should be accepted as part of the common law of Australia — Whether Sullivan v Gordon damages could be recovered for those years in which services may have been provided after the plaintiff's death up until the expected date of death but for the tort.

Costs — Resolution of legal point — Relevance of recurrent litigant — Relevance of plaintiff with no interest in legal position beyond litigation.

ORDER

• 1. Appeal allowed in Matter No S523 of 2004.

• 2. Appeal dismissed in Matter No S524 of 2004.

• 3. Set aside order (1) of the Court of Appeal of the Supreme Court of New South Wales dated 26 November 2003 and, in its place, order that:

  • (a) the appeal to that Court is allowed; and

  • (b) the judgment of the Dust Diseases Tribunal of New South Wales dated 4 April 2003 be reduced to $300,419.49.

• 4. Appellants to pay the costs of the respondent in this Court.

1 Gleeson CJ, Gummow AND Heydon JJ. The defendants (who are the appellants in this Court) admitted liability for negligently exposing the plaintiff to asbestos and thereby causing him to contract mesothelioma. The trial judge, Judge O'Meally, the President of the Dust Diseases Tribunal of New South Wales, ordered the appellants to pay $465,899.49 in damages to the plaintiff 1. The New South Wales Court of Appeal dismissed an appeal against that judgment with costs 2.

2 The appellants now appeal against those orders 3. The point at issue relates to one element in the damages: the figure of $165,480. That sum was described in the courts below as ‘ Sullivan v Gordon damages’ 4. It was awarded as compensation for the plaintiff's inability, after the onset of mesothelioma, to continue to provide domestic assistance to his wife, who suffered from osteoarthritis. She found it difficult to bend and twist and thus to do housework and gardening. Before the onset of mesothelioma, the plaintiff had helped with vacuuming, cleaning, gardening and general maintenance, so far as a pre-existing injury permitted. At the time of the trial in 2003 the plaintiff was aged 61, and it was agreed that he was expected to die in 2004. The plaintiff's wife was aged 60. The figure of $165,480 was calculated on the basis that services would have been rendered for another 20 years, that the plaintiff would have rendered them for one and a half hours a day, and that the cost was $25 per hour. The product of that calculation was discounted by 20 percent for contingencies. No issue is now taken with the correctness of the figure awarded provided the relevant head of damage is recoverable in law, nor, after argument, was any taken at the trial. It is to be noted that the Sullivan v Gordon damages of $165,480 were awarded in addition to general damages of $165,000 and damages under Griffiths v Kerkemeyer5 of $71,640 for the period before trial and for the period between the trial and the plaintiff's expected date of death 6.

3 In New South Wales the right to Sullivan v Gordon damages stems from a decision of the Court of Appeal bearing that name 7. In the present proceedings the appellants challenged the correctness of Sullivan v Gordon at first instance, but the primary judge correctly held himself to be bound by it 8. The appellants also challenged its correctness in the Court of Appeal, but the Court of Appeal understandably refused to grant leave to re-argue it on the ground that it was a very recent decision by a bench of five judges specially constituted to determine the correctness of a contrary earlier decision of that Court 9.

The issues

4 There are four questions for decision:

• (a) whether, where a personal injury prevents the plaintiff from providing gratuitous personal or domestic services for another person, the damages recoverable can include an amount calculated by reference to the commercial value of the services;

• (b) whether that head of damages is recoverable, in the case of an injury leading to death, for the ‘lost years’, that is, in this case, for the 19 years in which the services might have been provided after the plaintiff's actual death up until the date to which he was expected to have lived had the tort not been committed;

• (c) whether, in the event of the answers to (a) or (b) being favourable to the appellants, the matter should nevertheless be remitted for reconsideration of the figure awarded for general damages; and

• (d) whether the answer to any of the first three questions should result in alteration to the Court of Appeal's costs order.

Each question should be answered in the negative.

The state of the law

5 In considering the arguments of the parties, it is convenient to summarise the legal background against which they must be evaluated.

6 First, in Griffiths v Kerkemeyer10 this Court (Gibbs, Stephen and Mason JJ) held that in a claim for personal injury the plaintiff was entitled to recover an amount equivalent to the commercial cost of nursing and domestic services which had been provided in the past and would be provided in the future by the family or friends of the plaintiff.

7 Secondly, in Van Gervan v Fenton11 Mason CJ, Brennan, Toohey, Gaudron and McHugh JJ affirmed the view of Stephen and Mason JJ in Griffiths v Kerkemeyer that the true basis of the claim was the need of the plaintiff for the services; that the plaintiff did not have to show that the need was or might be productive of financial loss; and that the plaintiff's damages were not to be determined by reference to the actual cost to the plaintiff of having the services provided or by reference to the income forgone by the provider, but by reference to the cost of providing those services generally in the market.

8 Thirdly, in one jurisdiction there is legislation reversing the rules stated in the Griffiths v Kerkemeyer line of cases 12, and in other jurisdictions there is legislation restricting the availability or the quantum of this head 13.

9 Fourthly, some jurisdictions, whether by purported application of the rules in Griffiths v Kerkemeyer, or by extension of them, or otherwise, permit recovery of damages reflecting the impaired capacity of plaintiffs to provide domestic services to their families. This claim was rejected in New South Wales by

Reynolds and Mahoney JJA (Glass JA dissenting) in Burnicle v Cutelli14. That case was followed by a majority (Kennedy and Olney JJ, Wickham J dissenting) of the Full Court of the Supreme Court of Western Australia in Maiward v Doyle15. To those jurisdictions can be added Scotland 16. However, the Queensland Court of Appeal (Macrossan CJ, Davies JA and Fryberg J) accepted the claim in Sturch v Willmott17. So did the English Court of Appeal in Daly v General Steam Navigation Co Ltd18 and the Full Court of the Federal Court of Australia sitting on appeal from the Supreme Court of the Australian Capital Territory 19. A bench of five members of the New South Wales Court of Appeal in Sullivan v Gordon then adopted a concession by counsel that Sturch v Willmott was correct and Burnicle v Cutelli was incorrect 20. Since then, Sullivan v Gordonhas been followed in Western Australia 21 and the Australian Capital Territory 22. The opposite view has been taken by a majority of the Full Court of the Supreme Court of South Australia 23. Principles similar to those stated in Sullivan v Gordon are applied in Canada 24, although there have been dissenting judgments 25. In the United States there is an avenue of recovery for ‘a homemaker who is not a wage earner but whose earning capacity is devoted to providing household services’ 26. This was done by extension of principles relating to loss of earning capacity.

10 Finally, the Sullivan v Gordon principle has been assumed, subject to various limitations to be examined later, by the legislatures in Queensland 27 and Victoria 28, and enacted in the Australian Capital Territory 29.

11 The arguments of the respondent in this Court call for the resolution of the question whether the common law of Australia is reflected in the Sullivan v Gordon authorities. If the answer is yes, the authorities opposed to Sullivan v Gordon must be overruled; if no, the Sullivan v Gordon authorities must be.

Sullivan v Gordon as authority

12 The status of Sullivan v Gordon as an authority is heavily qualified by the procedural course which that case took. It was argued on two separate occasions. On the first occasion three judges sat. Neither party referred to Burnicle v Cutelli, although the court evidently did. It directed that the matter be re-listed before five judges for further argument on the correctness of that case. Beazley JA said 30:

‘[I]f that decision was to stand, it would govern the outcome of this part of the appellant's claim so as to restrict the plaintiff to having this part of her lost capacity reflected in general damages only. Although making no reference to Burnicle v Cutelli, the trial judge clearly applied the...