IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 403 of 2009

BETWEEN:

MOHEEZ NOSHEEN ALI 
of Lot 27 Mana Place, Nadawa, Nasinu, in the Republic of Fiji Islands, Manager but currently unemployed.
PLAINTIFF

AND:

KAVAIA SAVOU RADRUTA aka KAVAIA S RAIDRUTA
 of Lot 2, Mana Place, Nadawa, Nasinu in the Republic of Fiji Islands, Farmer.
DEFENDANT

BEFORE : Master Deepthi Amaratunga

COUNSEL : Mr. R. Naidu for the Plaintiff
Mr. A. Vulaono for the Defendant

Date of Hearing : 31st January, 2013
Date of Decision : 19th February, 2013

DECISION

A.	INTRODUCTION

1.	The Defendant admitted liability for negligence and the assessment of damages hearing was fixed for hearing before me. The Plaintiff, his wife and a Doctor gave evidence on behalf of him. The Defence did not call any evidence and in their submission revealed that an interim payment had been also made. Since the Defendant had revealed the award of the interim payment, it is not a ground to recuse, as per Order 29 rule 15. The Plaintiff also claimed a special damages for the 3 month time period where the wife of the Plaintiff took care of him while being admitted in the hospital. The Plaintiff did not plead such special damage in its statement of claim and all the special damages claimed in the statement of claim was agreed in the Pre-trial Conference without any dispute. The issue of special damages for the care of the wife was revealed for the first time in the written submission, and even at the trial no evidence was led regarding cost of such care, though there is undisputed evidence to the effect that such care was rendered during the time period when the Plaintiff was hospitalized. The wife of the Plaintiff was unemployed and no evidence was led to quantify the damage through evidence to value such services. 

B.	ANALYSIS

Revelation of interim payment order at hearing by Defendant

2.	The Plaintiff did not reveal the order of the court for the interim payment, but the Defendant in the closing submissions revealed that an interim payment had already been 	made by the court and also mentioned the quantum.

3.	Normally the fact of interim payment is not disclosed to the court at the hearing of assessment of damages or at the hearing of the liability. But a mere disclosure of that fact ipso facto does not become a ground for recusal of the matter by a judge or a master as the case may be.

4.	The law relating non-disclosure of the interim payment is contained in Order 29 rule 15 and it states as follows:-

Non disclosure of interim payment (O29.r.15)
15. The fact that an order has been made under rule 11 or 12 shall not be pleaded and, unless the defendant consents or the Court so directs, no communication of that fact or of the fact that an interim payment has been made, whether voluntarily or pursuant to an order, shall be made to the Court at the trial, or hearing of any question or issue as to liability or damages until all questions of liability and amount have been determined.’ (emphasis added).

5.	If the revelation of the interim payment is from the Defendant that is not prevented in the said provision of law. This is understandable as the prejudice, if any, by the revelation of the interim payment is always to the Defendant and no prejudice to the Plaintiff. So the revelation by a Defendant should not be a hindrance to hear the matter for assessment or liability. So, I proceed to assessment of damages, despite the revelation of the interim payment by the Defendant.

Assessment of Damages
6.	The plaintiff was admitted to Colonial War Memorial Hospital, which is a public hospital, on the 27th June 2009, on the date of the accident. He was unconscious for one week. He was hospitalized for 3 months for treatment after he regained conscience. His right leg was fractured and it was a closed multiple fracture. His right side of the face and hand abrasions and bruises.Both the Plaintiff and the wife of the Plaintiff, gave evidence on the state of the Plaintiff soon after the incident and this evidence regarding the plight of the Plaintiff and injuries suffered are not challenged in the cross-examination. The Plaintiff was unconscious for nearly one week, after the accident and the wife of the Plaintiff more vividly explained the events after the accident, and she also remained in the hospital for nearly three months to look after the Plaintiff as he could not move, or walk without assistance.

General damages 
Pain and suffering and loss of amenities of life

7.	The principles governing the amount of such awards and the function of this court in relation thereto are set out by Lord Diplock in his speech in Wright v British Rail Board [1983] 2 All ER 698 at 699–700, 702–703, 705–706, [1983] 2 AC 773 at 776–778, 780, 782, 784–785:

'My Lords, claims for damages in respect of personal injuries constitute a high proportion of civil actions that are started in the courts in this country. If all of them proceeded to trial the administration of civil justice would break down; what prevents this is that a high proportion of them are settled before they reach the expensive and time-consuming stage of trial, and an even higher proportion of claims, particularly the less serious ones, are settled before the stage is reached of issuing and serving a writ. This is only possible if there is some reasonable degree of predictability about the sum of money that would be likely to be recovered if the action proceeded to trial and the plaintiff succeeded in establishing liability. The principal characteristic of actions for personal injuries that militate against predictability as to the sum recoverable are, first, that the English legal system requires that any judgment for tort damages, not being a continuing tort, shall be for one lump sum to compensate for all loss sustained by the plaintiff in consequence of the defendant's tortious act whether such loss be economic or non-economic, and whether it has been sustained during the period prior to the judgment or is expected to be sustained thereafter. The second characteristic is that non-economic loss constitutes a major item in the damages. Such loss is not susceptible of measurement in money. Any figure at which the assessor of damages arrives cannot be other than artificial and, if the aim is that justice meted out to all litigants should be even-handed instead of depending on idiosyncrasies of the assessor, whether jury or judge, the figure must be “basically a conventional figure derived from experience and from awards in comparable cases” …

The need for a judge in assessing damages for non-economic loss to have regard to awards in comparable cases has led to progressive general increases in the level of awards, particularly for serious injuries. These have been intended to reflect, though admittedly imperfectly, the general increase in the level of salaries and wages and, more particularly since inflation became rampant, the decrease in the real value of the money due to this cause. It is with the increase in the nominal amount of awards in “the money of the day” (to borrow the apt phrase used by Barwick CJ in O'Brien v McKean (1968) 118 CLR 540 at 545) due to inflation that your Lordships are primarily concerned in the instant case. That increase in awards has taken place irregularly by fits and starts rather than following the actual shape of the rising curve of inflation; and there have been periods, particularly between 1973 and 1979, when it lagged significantly behind the decrease in real value of the money of the day. This was pointed out in Walker v John McLean & Sons Ltd [1979] 2 All ER 965 at 970, [1979] 1 WLR 760 at 765, where the Court of Appeal reaffirmed the rule of practice that damages for non-economic loss are to be assessed by reference to the value of money at the date of the trial and not at some other and lower sum calculated by reference to an earlier and higher value of the pound …

Lord Wilberforce, Lord Edmund-Davies and Lord Scarman [in Pickett v British Rail Engineering Ltd [1979] 1 All ER 774, [1980] AC 136] pointed out the fallacy underlying the new “no interest” guideline propounded by Lord Denning MR in Cookson v Knowles. As Lord Wilberforce succinctly put it ([1979] 1 All ER 774 at 782, [1980] AC 136 at 151): “Increase for inflation is designed to preserve the 'real' value of money, interest to compensate for being kept out of that 'real' value. The one has no relation to the other. If the damages remained, nominally, the same, because there was no inflation, interest would normally be given. The same should follow if the damages remain in real terms the same.” …

If judges carry out their duty of assessing damages for non-economic loss in the money of the day at the date of the trial, and this is a rule of practice that judges are required to follow, not a guideline from which they have a discretion to depart if there are special circumstances that justify their doing so, there are two routes by which the judge's task of arriving at the appropriate conventional rate of interest to be applied to the damages so assessed can be approached …

My Lords, given the inescapably artificial and conventional nature of the assessment of damages for non-economic loss in personal injury actions and of treating such assessment as a debt bearing interest from the date of service of the writ, it is an important function of the Court of Appeal to lay down guidelines both as to the quantum of damages appropriate to compensate for various types of commonly occurring injuries and as to the rates of “interest” from time to time appropriate to be given in respect of non-economic loss and of the various kinds of economic loss. The purpose of such guidelines is that they should be simple and easy to apply though broad enough to permit allowances to be made for special features of individual cases which make the deprivation caused to the particular plaintiff by the non-economic loss greater or less than the general run of cases involving injuries of the same kind. Guidelines laid down by an appellate court are addressed directly to judges who try personal injury actions; but confidence that trial judges will apply them means that all those who are engaged in settling out of court the many thousands of claims that never reach the stage of litigation at all or, if they do, do not proceed as far as trial will know very broadly speaking what the claim is likely to be worth if 100% liability is established. The Court of Appeal, with its considerable case-load of appeals in personal injury actions and the relatively recent experience of many of its members in trying such cases themselves is, generally speaking, the tribunal best qualified to set the guidelines for judges currently trying such actions, particularly as respects non-economic loss; and this House should hesitate before deciding to depart from them, particularly if the departure will make the guideline less general in its applicability or less simple to apply. A guideline as to quantum of conventional damages or conventional interest thereon is not a rule of law nor is it a rule of practice. It sets no binding precedent; it can be varied as circumstances change or experience shows that it does not assist in the achievement of even-handed justice or that it makes trials more lengthy or expensive or settlements more difficult to reach. But, though guidelines should be altered if circumstances relevant to the particular guideline change, too frequent alteration deprives them of their usefulness in providing a reasonable degree of predictability in the litigious process and so facilitating settlement of claims without going to trial. As regards assessment of damages for non-economic loss in personal injury cases, the Court of Appeal creates the guidelines as to the appropriate conventional figure by increasing or reducing awards of damages made by judges in individual cases for various common kinds of injuries. Thus, so-called “brackets” are established, broad enough to make allowance for circumstances which make the deprivation suffered by an individual plaintiff in consequence of the particular kind of injury greater or less than in the general run of cases, yet clear enough to reduce the unpredictability of what is likely to be the most important factor in arriving at settlement of claims. “Brackets” may call for alteration not only to take account of inflation, for which they ought automatically to be raised, but also, it may be, to take account of advances in medical science which may make particular kinds of injuries less disabling or advances in medical knowledge which may disclose hit her to unsuspected long-term effects of some kinds of injuries or industrial diseases.'

In Walker v John McLean & Sons Ltd [1979] 2 All ER 965, [1979] 1 WLR 760 the plaintiff was a paraplegic. The parties had accepted the accuracy of the table of comparative values of the pound found in Kemp and Kemp The Quantum of Damages (4th edn, 1975) vol 2, p 601. Cumming-Bruce LJ said [1979] 2 All ER 965 at 970, [1979] 1 WLR 760 at 765:

'Great caution has to be exercised in the examination and analysis of comparable awards because the facts inevitably differ and the influence of other items in each total award play a part which it is not always easy to identify or measure … In our view the recorded awards since 1973 are open to the criticism that they demonstrate that generally the courts have failed during the last five years to take sufficient account of the fact that the damages awarded for loss of amenity were worth significantly less than similar awards in earlier years. We do not encourage the application of a rigid multiplier to accord arithmetically with the changing values of the pound shown in the table to which we have referred. We content ourselves with the observation that by his award of £35,000 under this head the judge restores a consistency with awards made before 1973 which cannot be found in many awards made since that year.' (emphasis is mine)

8.	Accordingly, even though the court is granted with the discretion to determine the damages the touchstone of that award should be the predictability and coherence as to the quantum of the damage. For this similar injuries and awards of the court has to be compared with the analysis of the circumstances in each of the case being compared with the facts of those cases where awards already being made.

9.	The Plaintiff was unconscious for nearly one week and after that he obtained treatment while being an in-patient of the hospital for nearly 3 months. Even after 3 months he could only discharge from the hospital, on a wheel chair and could not move freely on his own. The Plaintiff explained the ordeal that he went through after the accident and it had taken about 18 months for him to walk. He had explained how he was carried even to the hospital for treatment to out-door-clinics, after the discharge from the hospital. The Plaintiff suffered multiple closed fracture on his right leg. The medical report of Doctor Alvin A De Asa marked as P1 states as follows:-

‘.. he sustained closed segmental fractures of his right femur and tibia/fibula. He had undergone surgery with interlocking intramedullary nails on his right thigh and leg on the 8th of July, 2009.

Pertinent findings on examination include, an obvious shortening of his right leg as compared to his left, motor and sensory function of 4/5 on his right and generalized pain on his right hip and knee region. There is decreased range of motion on the right hip region.’(emphasis is mine)

10.	The Plaintiff’s fracture on the right leg was treated with a surgery where interlocking intramedullary nails were inserted on the right thigh. The right leg was shortened after the treatment and the sensory function was 80%(i.e. 4/5) on the right leg. The Plaintiff still suffers from a generalized pain on his right hip and knee region and the range of motion on the hip region has also decreased.

Further P1 states as follows

‘Recent x-rays of his right leg showed the implants in good position without any evidence of metal failure or loosening. The fractures have healed but the x-ray of the right hip showed intra-osseous bony growth on the greater trochanter region. This condition is known as Myositis Ossificans which can cause pain and discomfort on the affected region….

Presently the patient now walks with a limp on the right leg and has subjectively complained of persistent on and off pain on his right hip and knee.’

11.	This medical report was obtained on 27th March, 2012 and the total impairment assessment was 18% according to 6th Edition, of American Medical Association Guide Line for impairment assessment, the Defendant produced another medical report obtained on 13th May, 2010, Marked as P10, but it had not indicated any percentage of impairment. In the cross examination of Dr. Asa stated that Arthritis can be controlled by the behaviour of the patient. He said that a reducing the weight and moderate exercise and confining to a healthy diet could control it and according to the medical witness a ‘healthy way of life’ is recommended for such a patient. At the same time he stated that Plaintiff has not adhered to such behaviour pattern or change of attitude in order to mitigate the injury. So, there is evidence that not reducing the weight and not adhering to a ‘healthy way of life’ the Osteoarthritis in Plaintiff which can be controlled to some extent has not materialized and this has caused some additional pain and suffering.The Plaintiff state that he does not have time for such activities, but this cannot be accepted as the time management is needed for proper allocation of space for physical activity and change of diet depends mainly on the will of a person. The Whole Person Impairment (WPI) attributed to Osteoarthritis was 3% WPI and even by ‘healthy way of life’ it is not possible to completely eliminate the Osteoarthritis, but it can be controlled and WPI would in that event be less than 3% from the total 18 WPI. So if the Plaintiff adhered to healthy way of life the impairment would be 15WPI<18 WPI (more than 15 and less than 18% WPI).

12.	When assessing the damages for the pain and suffering one should always look for similar cases and the damages awarded for pain and suffering. From the numerous cases submitted to me the nearest comparable injury suffered to the Plaintiff is found in High Court Lautoka Civil Action HBC 349 of 1997 Govind Sami v Karl Francis O’Brain. In that case the injuries to the claimant were, Bodily lacerations and abrasions, fractured left ankle, fractured right calcaneum (heel bone) and Fractured Ribs. Though the injuries were more serious where even the ribs of the patient were fractured, due to the fact that patient could walk after plaster of pariscast, he was discharged from the hospital much earlier than the Plaintiff. In that case, the injuries were fractured left ankle, fractured right heel bone and fractured ribs. Fractured ribs would result in constant pain, since breathing is continuous and expansion and contraction of mussels that connect to the ribs continuously, as opposed to a pain in one leg which will aggravate only when the leg is used to move. The symptoms complained in that case are much similar to the Plaintiff’s existing complains regarding pain, and limp. The percentage disability with reference to Department of Labour and Industry Schedules Chapter 5223 of the Minnesota Physical Impairment Manual was 18% and the award granted by Justice Gates (as his lordship then was) was FJ$ 40,000. The impairment assessment was not according to AMA Guide Lines, but the symptoms and injuries are similar to certain extent.

13.	I have not been presented with a case where a claimant had 15<18 WPI percentage under the 6th Edition of the American Medical Association Guidelines. But, I consider the award of Justice Gates (as his lordship then was) as a guide and considering the totality of the evidence before me I award $25,000 for Pain and suffering and loss of amenities of life. I have also took in n to consideration that cases like Vakatawa v Wise [2008] FJHC 169(13th August, 2008) where similar sum (i.e. $25,000) was awarded for more serious injuries. One has to be careful to tread on via media in awarding damages under this heading as the authorities supplied by the parties are on the extreme side, depending on the party that submits them.

C.	PAST ECONOMIC LOSS

14.	The Plaintiff was employed at a DVD kiosk at the time of the accident. Though he did not produce any letter of appointment it can be accepted not disputed. He said he was paid $115 per week for his services there. The Defendant’s contention is that this place of business was closed after the accident and the closure of the said business was not a result of the accident hence the Plaintiff would not have earned the income he earned at the time of the accident continuously. I do not accept this contention. The Plaintiff explained why the business was closed. In fact the business improved and a supermarket established by the same person who owned the DVD shop. The Plaintiff was re-employed in the said supermarket as a supervisor at $140 per week ($20 per day) after the accident when he was fit to work. So, the Plaintiff had potential to earn at the time of the accident, and of the closure of the place he worked, to be converted to a supermarket is not a reason for denial of the damages for past economic loss. For past economic loss I consider the wage of $115 per week as yardstick to calculate the loss of the income of the plaintiff and the time period is from the date of accident to 15th January, 2012 (133 weeks), since that was the time he was deprived of work due to the accident. There is no evidence of Plaintiff refusing to work when he was fit for work, and proper analysis of the evidence would show that the Plaintiff being the sole breadwinner of the family, would have been eager to work, and he had grabbed the first opportunity to work, which is under his former employer, in a different capacity in a different business. The employer converted his business from DVD parlor to a supper market and the Plaintiff was employed for a higher salary, even though he had some impairment. In the circumstances I award for Past Economic Loss-( $115x133)=$15,295

D.	FUTURE ECONOMIC LOSS

15.	The Plaintiff in his evidence stated that he was now employed as a supervisor by his former employer for a higher salary in a better organization. Prior to the accident he was employed at a DVD shop and he had engaged in numerous types of activities including carrying big boxes containing DVDs. Now, he is a supervisor in a super market and does not engage in labour intensive activities. He now earns $140 per week as against the previous income of $115 per week. In the circumstances there is no loss of future income proved and I decline to award any sum for future economic loss.

E.	SPECIAL DAMAGES

16.	At the Pre-Trial conference all the special damages claimed by the Plaintiff according to the statement of claim, and particularized were agreed between the parties, and Pre-Trial Conference minutes states as follows

‘6. The Parties agree to the following

a.	Cost of obtaining police report	22.50	
b.	Cost of obtaining medical report	5.50	
c.	Land Transport Authority search fees	7.00	
d.	Travelling expenses (to and from hospital)	300	
e.	Medical expenses	300	
f.	Interest on the award of general Damages from the date of accident 27/06/09 to the date of trial at 7% pear annum		
g.	Interest on the award of special damages from the date of accident (27/06/09) to the date of trial at 7% p.a		
h.	Multiplier-15.		

17.	The Total agreed Special Damages are $635 and I award that amount as special damages. The Plaintiff’s counsel in his written submission tried to add another $200 as special damages, but this is contained in P 11 which is the cost of the Doctor for attending court to give evidence, which is attributable to cost of the trial and not as a special damage to the Plaintiff.

F.	DAMAGES FOR CARE BY THE WIFE

18.	The Plaintiff neither pleaded nor led any evidence to quantify the damages for the care given by the wife for the 3 months, when the Plaintiff was treated initially at the hospital. When the oral evidence was taken it was not contended for any claim, and no evidence was led to quantify the services rendered by wife gratuitously and not even a suggestion was made to this effect to either quantify or to suggest that Plaintiff is going to claim for that services. This item of damages contained only in the written submissions and undoubtedly an afterthought after the conclusion of hearing.

19.	The Plaintiff couldn’t go to the washroom, he could not stand on his feet to have proper bath, he couldn’t eat by himself. He couldn’t move from one place to another. His wife took care of him day and night during this period, at the hospital. In the afternoons his wife used to go home and cook meals for the family and this took only about 1-2 hours and rest of the time she was with the Plaintiff in the hospital.

20.	The wife of the Plaintiff was pregnant with the second child, at the time of the incident and she did all her household chores and also looked after herself and the unborn child in the midst of all the extra work she had to do while taking care of the Plaintiff at the hospital. She had to look in to the first child’s needs as well. This certainly would have been a daunting task and no ordinary person would have committed for such an ordeal, even for money, but for her love and dedication to the Plaintiff and to the family, gave her strength to do all the work. No amount of money can actually compensate her for her efforts, but whether she is legally entitled for compensation and if so whether this claim is properly made in this action are the issues before me. Prima facie the Plaintiff does not have a claim for what the wife had done voluntarily, because what the Plaintiff is being compensated are the losses incurred to him, but case law has developed this area of which I would discuss later. The Plaintiff in the submissions claims for the care of the wife and a brief submission was made to that effect with one U.K and another Australian High Court decision and Defendant in their submission did not address the issue sufficiently, and understandably since there was no such claim or an issue raised in pleadings or in trial.

21.	1988 (White Book) Supreme Court Practice U.K at page 298 state as follows 18/12/32

‘Special Damages- The plaintiff will not be allowed at the trial to give evidence of any special damage which is not claimed explicitly, either in his pleading or particulars (Hayward v Pullinger and Partners Ltd [1950] 1 All E.R 581; Anglo –Cyprion Trade Agencies Ltd v Paphos which the plaintiff has sustained must be pleaded and particularized otherwise it cannot be recovered (Ilkiw v Samuels [1963] 1 WLR 991; [1963] 2 All ER 879……

…..in personal injury actions, any benefits accrued, whether by way of unemployment benefit or from other sources, should be disclosed at the earliest possible moment on the pleading (Cheesmand v Bowaters United Kingdom Paper Mills Ltd [1971] 1 WLR 1773; [1971] 3 All E.R. 513 CA)
Services rendered to the Plaintiff gratuitously by a relative or friend in provision of nursing care or domestic assistance of the kind rendered by the injuries the plaintiff suffered are special damages and they are considered accordingly and U.K House of Lords decision of Hunt (now Severs) v Severs [1994] 2 All ER 385.

22.	The Plaintiff neither pleaded damages for gratuitous care in the pleadings nor produced any document in their affidavit verifying list of documents. No such issue was ever raised in Pre Trial minutes or at the trial when the oral evidence was led, to quantify the care. When the Plaintiff and his wife gave evidence the gratuitous care by the wife during initial 3 months after the accident was revealed, but no evidence was led to quantify it. There was no indication as to such a claim either in pleadings or particulars.In the circumstances I would decline to order any sum for such gratuitous services on the above grounds as it is a special damage and defendant should not be taken by surprise in the closing submissions, where at the hearing,not even a suggestion was made by the Plaintiff to quantify the damages or to indicate such a claim is being made,for the care of the wife while being hospitalized. Without prejudice to the above reasoning, I will furtheranalyze the issue of damages for the gratuitous care by wife of the Plaintiff.

23.	There was no evidence that wife of the Plaintiff was ever employed, either prior or after the accident, nor any evidence was led to quantify such services from the market. No evidence was led to value such services from the commercial rate. In the circumstances the counsel for the Plaintiff has pluck an amount from air to quantify the damage, and I cannot disregard rules of evidence and analysis of evidence to arrive at a figure to award such compensation.

24.	The Plaintiff in its submission state that cost of care is recoverable and cite England Court of Appeal case of Donnelly v Joyce [1973] 3 All ER 475. In this case the injured was a child, aged six, and was severely injured when a lorry driven by the defendant ran over his legs. In consequence of the injuries to his right leg the child was kept in hospital for some three months and for two months thereafter had to attend daily as an out-patient. The injured leg required special bathing and dressing every evening as well as at midday. The motherof the child had a part-time job which involved working from 6 to 8.30 pm six nights a week. As soon as the child had been discharged from hospital the mother gave up her job in order to care for him and court ordered the sum of money the mother of the child lost due to her giving up her employment. In that case the need for such care and also the quantification of that service through evidence was available for the court to determine a value.

25.	It was held in Donnelly v Joyce[1973] 3 All ER 475 at 479-480

“We do not agree with the proposition, inherent in counsel for the defendant's submission, that the plaintiff's claim, in circumstances such as the present, is properly to be regarded as being, to use his phrase, 'in relation to someone else's loss', merely because someone else has provided to, or for the benefit of, the plaintiff-the injured person-the money, or the services to be valued as money, to provide for needs of the plaintiff directly caused by the defendant's wrongdoing. The loss is the plaintiff's loss. The question from what source the plaintiff's needs have been met, the question who has paid the money or given the services, the question whether or not the plaintiff is or is not under a legal or moral liability to repay, are, so far as the defendant and his liability are concerned, all irrelevant. The plaintiff's loss, to take this present case, is not the expenditure of money to buy the special boots or to pay for the nursing attention. His loss is the existence of the need for those special boots or for those nursing services, the value of which for purposes of damages--for the purpose of the ascertainment of the amount of his loss--is the proper and reasonable cost of supplying those needs. That, in our judgment, is the key to the problem. So far as the defendant is concerned, the loss is not someone else's loss. It is the plaintiff's loss.

Further at 481

Then, as regards agreements between the provider and the plaintiff. There are cases, particularly in recent years (though again, so far as we are aware, none which is binding on us) in which it has been held that the plaintiff's right to recover damages in respect of money paid or the value of services rendered on his behalf by some other person can be brought into existence if, subsequent to the wrongdoing, a contract for reimbursement is made between the plaintiff and the provider. For example, the decisions in Haggar v de Placido and in McDonnell v Stevens so hold. With all respect, this, in our judgment, is erroneous doctrine. Of course, if such an agreement is made, it may be relevant to the question whether the provider can recover from the plaintiff. But it should not be, and, as we think, is not, relevant to the question of the liability of the defendant wrongdoer, its extent, or the question to whom the liability is owed. The defendant is not a party to the contract. He knows nothing of its making. It is res inter aliosacta.” (emphasis added)

26.	This finding was under much criticism in Dimond v Lovell [2000]2AllER897 by House of Lords and Lord Hoffmann in House of Lords in that case Held,

“6. Res inter aliosacta

1st Automotive's next point was that it did not matter whether Mrs. Dimond was liable to pay for the hire of the Ford Mondeo. The fact was that Mr. Lovell had negligently deprived her of 8 days use of her Suzuki. This was her loss and the fact that she had been lucky enough to obtain the use of another car for nothing was, as one used to say, res inter aliosacta. It should not affect Mr. Lovell's liability, any more than if a friendly neighbour who happened to be going on holiday had put his car at her disposal. The neighbour would be surprised to learn that his generosity had been for the benefit of Mr. Lovell.

This argument has very respectable support in the authorities. Mr. Wingate-Saul began with the decision of this House in Parry v. Cleaver [1970] A.C.1. Lord Reid there said, at p. 14, that it would be unjust for damages to be reduced to take into account benefits that the plaintiff received "from the benevolence of his friends or relations or of the public at large" so that "the only gainer would be the wrongdoer." Lord Reid also said that benefits from insurance taken out by or for the plaintiff should be disregarded because "the plaintiff has bought them" and it would be unjust that "the money which he prudently spent on premiums...should endure for the benefit of the tortfeasor." He applied this reasoning to hold that benefits from a contributory disability pension fund should also be disregarded.

 In Donnelly v. Joyce [1974] Q.B. 454 Megaw L.J. derived from these decisions a general theory that benefits received from third parties were res inter aliosacta. A boy of six sustained bad injuries to his leg in a road accident. For six months he required daily attention. His mother gave up her job to look after him. The claim for damages on behalf of he boy included the mother's loss of earnings. This was objected to on the grounds that the boy had incurred no obligation to repay his mother for her services. Megaw L.J. said, at p. 462, that the fact that the boy had obtained the necessary care without payment was irrelevant to his claim:

"The question from what source the plaintiff's needs have been met, the question who has paid the money or given the services, the question whether or not the plaintiff is or is not under a legal or moral liability to repay, are, so far as the defendant and his liability are concerned, all irrelevant. The plaintiff's loss, to take this present case, is not the expenditure of money to buy the special boots or to pay for the nursing attention. His loss is the existence of the need for those special boots or for those nursing services, the value of which for purposes of damages - for the purpose of the ascertainment of the amount of his loss - is the proper and reasonable cost of supplying those needs. That, in our judgment, is the key to the problem. So far as the defendant is concerned, the loss is not someone else's loss. It is the plaintiff's loss." 

A general principle that benefits provided by third parties are res inter aliosacta is obviously strongly supportive of 1st Automotive's argument. And that principle was applied by the Court of Appeal in McAll v. Brooks [1984] R.T.R 99 on facts very similar to the present case. The plaintiff reasonably required a replacement car after his own had been damaged in an accident. His insurance brokers provided the car under an arrangement that was alleged to be illegal insurance business and would have prevented them from being subrogated to the plaintiff's claim for damages in respect of the loss of the use of his car. Lawton L.J. said, at p. 103, that the principle in Donnelly v. Joyce [1974] Q.B. 454 made the relationship between the plaintiff and his insurance company irrelevant:

"It is admitted by the defendant that the plaintiff had a need for a replacement car. Lords Insurance Brokers Ltd. satisfied that need. It is accepted that the charge of £328 was a reasonable charge having regard to all the circumstances. On the authority of Donnelly's case that need had to be paid for by the defendant as the wrongdoer." 

That is the high water mark of authority in favour of 1st Automotive. But since high water the tide has retreated. The courts have realized that a general principle of res inter aliosacta which assumes that damages will be paid by "the wrongdoer" out of his own pocket is not in accordance with reality. The truth is that virtually all compensation is paid directly out of public or insurance funds and that through these channels the burden of compensation is spread across the whole community through an intricate series of economic links. Often, therefore, the sources of "third party benefits" will not in reality be third parties at all. Their cost will also be borne by the community through taxation or increased prices for goods and services. So in Hunt v. Severs [1994] 2 A.C. 350 the House of Lords rejected the broad res inter aliosacta principle of Donnelly v. Joyce [1974] Q.B. 454. Lord Bridge of Harwich cited, at p. 360, the passage from the judgment of Megaw L.J. which I have quoted and said:

"With respect, I do not find this reasoning convincing. I accept that the basis of a plaintiff's claim for damages may consist in his need for services but I cannot accept that the question from what source that need has been met is irrelevant. If an injured plaintiff is treated in hospital as a private patient he is entitled to recover the cost of that treatment. But if he receives free treatment under the National Health Service, his need has been met without cost to him and he cannot claim the cost of the treatment from the tortfeasor. So it cannot, I think, be right to say that in all cases the plaintiff's loss is 'for the purpose of damages . . . the proper and reasonable cost of supplying [his] needs.'"

The House treated the two cases mentioned by Lord Reid in Parry v. Cleaver [1970] A.C.1, 14 ("the fruits of insurance which the plaintiff himself has provided" and "the fruits of the benevolence of third parties") as "apparent exceptions to the rule against double recovery" founded on the special considerations of policy which Lord Reid had explained: see Lord Bridge of Harwich, at p. 358. The House declined to create another exception for the case in which, as in Donnelly v. Joyce [1974] Q.B. 454, the plaintiff claims compensation for the reasonable cost of necessary services which have in fact been provided voluntarily by a third party. It decided that in such a case damages cannot be recovered for the plaintiff's own benefit. He can sue only if he claims as trustee for the person who provided the services: see p. 363. This case is of course far away from the gratuitous provision of services (usually by a relative) which was considered suitable for recovery as trustee in Hunt v. Severs [1994] 2 A.C. 350. If Mrs. Dimond is allowed to sue Mr. Lovell as trustee for 1st Automotive, the effect will be to confer legal rights upon 1st Automotive by virtue of an agreement which the Act of 1974 has declared to be unenforceable. This would be contrary to the intention of the Act. The only way, therefore, in which Mrs. Dimond could recover damages for the notional cost of hiring a car which she has actually had for free is if your Lordships were willing to create another exception to the rule against double recovery. I can see no basis for doing so. The policy of the Act of 1974 is to penalise 1st Automotive for not entering into a properly executed agreement. A consequence is often to confer a benefit upon the debtor, but that is a consequence rather than the primary purpose. There is no reason of policy why the law should insist that Mrs. Dimond should be able to retain that benefit and make a double recovery rather than that it should reduce the liability of Mr. Lovell's insurers.” (emphasis added)

27.	In Housecraft v Burnett [1986] 1 All ER 332) the mother of the child did not give up the employment while being engaged in the looking after the child. The issue was whether the amount payable as damages was the commercial rate of employing another person to do the same type of work that mother did and the Court of Appeal affirmed the judge’s assessment which was below the commercial rate of employing an outsider.

28.	The said judgment Donnelly v. Joyce [1994] 2 A.C. 350.of the England Court of Appeal came under heavy criticism for several reasons. At least two House of Lords decisions distanced from the reasoning in Donnelly v. Joyce, House of Lords in Hunt v Severs, [1994] 2 A.C. 350 at 357 paragraph H-358-para A- page -363 para G held as follows

“The starting point for any inquiry into the measure of damages which an injured plaintiff is entitled to recover is the recognition that damages in the tort of negligence are purely compensatory. He should recover from the tortfeasor no more and no less than he has lost. Difficult questions may arise when the plaintiff's injuries attract benefits from third parties. According to their nature these may or may not be taken into account as reducing the tortfeasor's liability. The two well-established categories of receipt which areto be ignored in assessing damages are the fruits of insurance which the plaintiff himself has provided against the contingency causing his injuries (which may or may not lead to a claim by the insurer as subrogated to the
rights of the plaintiff) and the fruits of the benevolence of third parties motivated by sympathy for the plaintiff's misfortune. The policy considerations which underlie these two apparent exceptions to the rule against double recovery are, I think, well understood: see, for example, Parry v.Cleaver [1970] A.C. 1, 14 and Hussain v. New Taplow Paper Mills Ltd. [1988] A.C. 514, 528. But I find it difficult to see what considerations of public policy can justify a requirement that the tortfeasor himself should compensate the plaintiff twice over for the self same loss. If the loss inquestion is a direct pecuniary loss (e.g. loss of wages), Hussain's case is clear authority that the defendant employer, as the tortfeasor who makes good the loss either voluntarily or contractually, thereby mitigates his liability in damages pro tanto. The Court of Appeal, in the judgment appealed from, readily accepted a number of examples advanced in argument for the appellant defendant as showing that a tortfeasor may mitigate his liability by making good in kind the physical damage which his tort has caused to the plaintiffs property. In a wide-ranging argument before your Lordships, where many hypothetical examples were examined of gratuitous services rendered by a tortfeasor to an injured plaintiff in satisfaction of a need occasioned by histon, Mr. McGregor, for the respondent plaintiff, was constrained to acceptas a general rule that the tortfeasor, having provided those services, cannot also be held liable to the plaintiff in damages for their value. But he submitted that where the tortfeasor is a relative or close friend of the plaintiff and gratuitously provides services of an intimate personal or domestic character, he is required by law, as a narrow exception to the general rule, also to pay the plaintiff the value of those services. The law with respect to the services of a third party who provides voluntary care for a tortuously injured plaintiff has developed somewhat erratically in England. The voluntary carer has no cause of action of his ownagainst the tortfeasor. The justice of allowing the injured plaintiff to recoverthe value of the services so that he may recompense the voluntary carer has been generally recognised, but there has been difficulty in articulating a consistent juridical principle to justify this result.

In Roach v. Yates [1938] 1 K.B. 256 the injured plaintiff needed to be cared for day and night and his wife and sister-in-law both gave up their employment to provide that care for him and together lost wages of £3 a week. A claim for the value of their services at £3 a week was included inthe special damages claimed and a similar claim made as an element in general damages related to future loss. The services were given voluntarily but the plaintiff was held entitled to recover in respect of them. Referring to the nursing services required by the plaintiff, Greer L.J. said, at p. 263:

"He can get those services, and perhaps get them better than in anyother way, from the attendance which is being given to him by hiswife and his sister-in-law; but he would naturally feel that he oughtto compensate them for what they have lost by giving up the work at which they were earning the sum of £3 a week. I think that Mr.Beyfus was right in saying that we must take into account, at any rate for the period during which the plaintiff may now be expected to live, the sum of £3 a week as the minimum expense which the plaintiff would have to incur in retaining the nursing services of his wife and his sister-in-law."

In Schneider v. Eisovitch [1960] 2 Q.B. 430, the plaintiff and her husband were involved in a road accident in France in which the plaintiff was injured and the husband killed. The plaintiffs brother-in-law and his wife voluntarily flew out to France to assist the plaintiff back to England and to arrange the return of the husband's body for burial. The plaintiff claimed their expenses as part of her damages. Paull J. said with respect to this claim,
at p. 440:

"Before such a sum can be recovered the plaintiff must show first that the services rendered were reasonably necessary as a consequence of the tortfeasor's tort; secondly, that the out-of-pocket expenses of thefriend or friends who rendered these services are reasonable, bearing in mind all the circumstances including whether expenses would havebeen incurred had the friend or friends not assisted; and, thirdly, that the plaintiff undertakes to pay the sum awarded to the friend or
friends."

In the event Paull J. held that these conditions were satisfied and that the plaintiff was entitled to recover. In Wattsonv. Port of London Authority [1969] 1 Lloyd's Rep. 95, the plaintiffs wife had for a period given up her work and consequently lost earnings in order to look after her injured husband. Megaw J. held that the wife's loss was properly included in the husband's damages. Referring to the fact that there had been no contract between husband and wife with respect toher services in caring for him, Megaw J. said, at p. 102:

"That is not how human beings work and it would, in my judgment - and I say this because I think it ought to be said - be a blot on the law if the law were to be such that a wife who in these circumstances had held her husband to make a contract to repay her he should recover damages for that amount; but if she behaves like an ordinary decent human being and does not put construction upon the act of that service, there is financial disadvantage to the plaintiff as a result. In my judgment, this position is covered in substance in the judgment of
Mr. Justice Paull in the case of Schneider v. Eisovitch [1960] 2 Q.B.430. The essence of the judgment appears at p. 440, and in this case I do not think it matters that there is no firm undertaking on the part of the plaintiff that if he is awarded this sum ... he will repay that money to his wife."

In the cases of Cunningham v. Harrison [1973] Q.B. 942 and Donnellyv. Joyce [1974] Q.B. 454 judgments were delivered by different divisions ofthe Court of Appeal on successive days. In Cunningham the wife of aseverely disabled plaintiff, who had initially looked after him, had died beforethe trial. Lord Denning M.R. said, at pp. 951-952:

"Before dealing with [the claim for future nursing expenses] I would like to consider what the position would have been if the wife had not died and had continued to look after her husband, as she had been doing. The plaintiff's advisers seem to have thought that a husband could not claim for the nursing services rendered by a wife unless the husband was legally bound to pay her for them. So, on their advice on July 11, 1972, an agreement was signed whereby the husband agreed to pay his wife £2,000 per annum in respect of her nursing services. We were told that such advice is often given by counsel insuch cases as these when advising on evidence. I know the reason why such advice is given. It is because it has been said in some cases that a plaintiff can only recover for services rendered to him when he was legally liable to pay for them: see for instance Kirkham v.Boughey [1958] 2 Q.B. 338, 342 and Janney v. Gentry (1966) 110 S.J.408. But, I think that view is much too narrow. It seems to me that when a husband is grievously injured - and is entitled to damages –then it is only right and just that, if his wife renders services to him instead of a nurse, he should recover compensation for the value of the services that his wife has rendered. It should not be necessary to draw up a legal agreement for them. On recovering such an amount, the husband should hold it on trust for her and pay it over to her. She cannot herself sue the wrongdoer ... but she has rendered services necessitated by the wrong-doing, and should be compensated for it. If she had given up paid work to look after him, he would clearly have been entitled to recover on her behalf; because the family income would have dropped by so much: see Wattson v. Port of London Authority [1969] 1 Lloyd's Rep. 95, 102, per Megaw J. Even though she had not been doing paid work but only domestic duties in the house, nevertheless all extra attendance on him certainly calls for compensation."

In Donnelly v. Joyce, the injured plaintiff was a boy of six. His mother gave up her work for a period to provide necessary care for him and the disputed item in his claim related to the mother's loss of wages. The judgment of the court delivered by Megaw L.J. contains a lengthy review ofthe authorities, but the key passage relied on by the trial judge and the Court of Appeal in the instant case is at [1974] Q.B. 461-462 and reads as follows:

"We do not agree with the proposition, inherent in Mr. Hamilton's submission, that the plaintiff's claim, in circumstances such as the present, is properly to be regarded as being, to use his phrase, "in relation to someone else's loss," merely because someone else has provided to, or for the benefit of, the plaintiff - the injured person –the money, or the services to be valued as money, to provide for needs of the plaintiff directly caused by the defendant's wrong doing. The loss is the plaintiffs loss. The question from what source the plaintiffs needs have been met, the question who has paid the money or given the services, the question whether or not the plaintiff is or is not under a legal or moral liability to repay, are, so far as the defendant and his liability are concerned, all irrelevant. The plaintiffs loss, to take this present case, is not the expenditure of money to buy the special boots or to pay for the nursing attention. His loss is the existence of the need for those special boots or for those nursing services, the value of which for purposes of damages - for the purpose of the ascertainment of the amount of his loss - is the proper and reasonable cost of supplying those needs. That, in our judgment, is the key to the problem. So far as the defendant is concerned, the loss is not someone else's loss. It is the plaintiff’s loss.

"Hence it does not matter, so far as the defendant's liability to the
plaintiff is concerned, whether the needs have been supplied by the plaintiff out of his own pocket or by a charitable contribution to him from some other person whom we shall call the 'provider'; it does not matter, for that purpose, whether the plaintiff has a legal liability, absolute or conditional, to repay to the provider what he has received, because of the general law or because of some private agreement between himself and the provider; it does not matter whether he has a moral obligation, however ascertained or defined, so to do. The question of legal liability to reimburse the provider may be very relevant to the question of the legal right of the provider to recover from the plaintiff. That may depend on the nature of the liability imposed by the general law or the particular agreement. But it is not a matter which affects the right of the plaintiff against the wrongdoer."

With respect, I do not find this reasoning convincing. I accept that the basis of a plaintiffs claim for damages may consist in his need for services but I cannot accept that the question from what source that need has been met is irrelevant. If an injured plaintiff is treated in hospital as a private patient he is entitled to recover the cost of that treatment. But if he receives free treatment under the National Health Service, his need has been met without cost to him and he cannot claim the cost of the treatment from the tortfeasor. So it cannot, I think, be right to say that in all cases the plaintiffs loss is "for the purpose of damages ... the proper and reasonable cost of supplying [his] needs".

In Scotland the law on this subject has developed differently. In Edgar v. Postmaster General 1965 S.L.T. 158 it was held by a majority of the Inner House of the Court of Session that the injured pursuer's averment that his accident had caused his wife to give up work to look after him and there by lose wages was irrelevant. Having pointed out that the wife, not being a party to the action, could not recover the loss, the Lord President (Lord Clyde) continued at p. 160:

"If, on the other hand, the averment is intended to form the basis for a claim for domestic assistance for which the pursuer would have had to pay if he had not been able to secure it gratuitously the claim is, in my opinion, an irrelevant one. It would have been another matter altogether if the pursuer had actually paid some third party, or had entered into a contract to pay some third party for this domestic assistance. It could then have formed a relevant item in his claim for damages. But if the assistance which he got was given gratuitously and there is no undertaking or understanding by him to pay for it (and that is the situation in the present case) then I am quite unable to see how he can claim to be reimbursed for a payment he has not and cannot be compelled to make. In Scotland, damages necessarily involves a loss either actual or prospective, and the plain fact of the matter is that the pursuer has sustained no such loss at all in regard to this item.” The difference in this regard between Scottish and English law was examined by the Scottish Law Commission in their report in 1978 (Scot. Law Com. No. 51). In paragraph 20 they adopted the view that "the value of the services of persons who have assisted the injured person should be recoverable by the latter in his action against the wrongdoer" but considered that "the principle should only apply as between members of the injured person's family group or circle". In paragraph 22 they criticised the reasoning used in the judgment of Megaw L.J. in Donnelly v. Joyce in the following terms:

"In cases where services have been rendered gratuitously to an injured person, it is artificial to regard that person as having suffered a net loss in the events which happened. The loss is in fact sustained by the person rendering the services, a point vividly illustrated in cases where he has lost earnings in the course of rendering those services. We suggest, therefore, that it is wrong in principle, in cases where services have been rendered gratuitously by another to an injured person, to regard the latter as having in fact suffered a net loss."

They concluded at paragraph 23:

"... that it would be right to devise an approach which will enable the injured person to recover in his own action the value of services which have been rendered to him by relatives but which would, at the same time, enable the relative to recover, if he so wished, the value of these services from the injured person."

The Commission's recommendations in this respect were implemented by Part II of the Administration of Justice Act 1982, which applies to damages for personal injuries in Scotland and which by section 8 provides:

"8-(l) Where necessary services have been rendered to the injured person by a relative in consequence of the injuries in question, then, unless the relative has expressly agreed in the knowledge that an action for damages has been raised or is in contemplation that no payment should be made in respect of those services, the responsible person shall be liable to pay to the injured person by way of damages such sum as represents reasonable remuneration for those services and repayment of reasonable expenses incurred in connection therewith.

"(2) The relative shall have no direct right of action in delict against the responsible person in respect of the services or expenses referred to in this section, but the injured person shall be under an obligation to account to the relative for any damages recovered from the responsible person under this section."An elaborate definition of "relative" in section 13(1), which I need not here set out, implements the Commission's recommendation that this provision should apply only if the person rendering the services and the injured person belong to the same "family group or circle".

Thus, in both England and Scotland the law now ensures that an injured plaintiff may recover the reasonable value of gratuitous services rendered to him by way of voluntary care by a member of his family. Differences between the English common law route and the Scottish statutory route to this conclusion are, I think, rarely likely to be of practical importance, since in most cases the sum recovered will simply go to swell the family income. But it is nevertheless important to recognise that the underlying rationale of the English law, as all the cases before Donnelly demonstrate, is to enable the voluntary carer to receive proper recompense for his or her services and I would think it appropriate for the House to take the opportunity so far as possible to bring the law of the two countries into accord by adopting the view of Lord Denning M.R. in Cunningham v. Harrison that in England the injured plaintiff who recovers damages under this head should hold them on trust for the voluntary carer. By concentrating on the plaintiff's need and the plaintiffs loss as the basis of an award in respect of voluntary care received by the plaintiff, the reasoning in Donnelly diverts attention from the award's central objective of compensating the voluntary carer. Once this is recognised it becomes evident that there can be no ground in public policy or otherwise for requiring the tortfeasor to pay to the plaintiff, in respect of the services which he himself has rendered, a sum of money which the plaintiff must then repay to him. If the present case had been brought in Scotland and the claim in respect of the tortfeasor's services made in reliance on section 8 of the Administration of Justice Act 1982, it would have been immediately obvious that such a claim was not sustainable.The case for the respondent plaintiff was argued in the Court of Appeal without reference to the circumstance that the defendant's liability was covered by insurance. But before your Lordships Mr. McGregor, recognising the difficulty of formulating any principle of public policy which could justify recovery against the tortfeasor who has to pay out of his own pocket, advanced the bold proposition that such a policy could be founded on the liability of insurers to meet the claim. Exploration of the implications of this proposition in argument revealed the many difficulties which it encounters. But I do not think it necessary to examine these in detail. The short answer, in my judgment, to Mr.McGregor's contention is that its acceptance would represent a novel and radical departure in the law of a kind which only the legislature may properly effect. At common law the circumstance that a defendant is contractually indemnified by a third party against a particular legal liability can have no relevance whatever to the measure of that liability. (emphasis added)

29.	The above long quote vividly describes the law relating to damages to gratuitous services in England and Scotland. It had developed over the years and according to the said House of Lords decision, the law relating to damages for gratuitous care in England had developed ‘erratically’ and one has to be careful in application of such authorities and principles. It was further held that ‘Thus, in both England and Scotland the law now ensures that an injured plaintiff may recover the reasonable value of gratuitous services rendered to him by way of voluntary care by a member of his family’. The House of Lords in Hunt v Severs (supra)stated ‘The justice of allowing the injured plaintiff to recover the value of the services so that he may recompense the voluntary carer has been generally recognised, but there has been difficulty in articulating a consistent juridical principle to justify this result”. If the Defendant had provided such gratuitous services, the Plaintiff could not claim for that services, since the claim against the Defendant would have decreased by that amount. This would encourage any Defendant to provide services that are needed to a plaintiff, voluntarily which would result mitigation of damages to the Plaintiff. This is the rationale accepted in Hunt v Severs in House of Lords in England and also affirmed in Dimond v Lovell [2000]2 All ER 897.

30.	The law relating to care by third parties in Australia was discussed in Hunt v Severs (H.L.(E))[1994] 2 A.C. 350.at paragraph H 363- para C p 364 and stated as follows

I add a short postscript with reference to a number of Australian authorities which were helpfully drawn to your Lordships' attention. The decision of the High Court of Australia in Griffiths v. Kerkemeyer (1977) 139C.L.R. 161, adopts in substance what I may call the principle of Donnelly v. Joyce. Since then there has been a significant number of Australian decisions, both reported and unreported, rejecting claims by injured plaintiffs to recover the value of gratuitous services rendered to them by defendants. The reported decisions to this effect by single judges are: Gowling v. Mercantile Mutual Insurance Co. Ltd. and Gowling [1980] 24 S.A.S.R. 321; Jones v. Jones [1982] Tas.R. 282; Gutkin v. Gutkin [1983] 2 Qd.R. 764; and Maanv.Westbrook [1988] 2 Qd.R. 267. To the like effect are the decisions of the Full Court of the Supreme Court of Western Australia in Snape v. Reid (1984) Aust. Torts Reports, 80-620; and of the Full Court of the Supreme Court of Tasmania in Motor Accidents Insurance Board v. Pulford (1993) Aust. TortsReports, 81-235. The only contrary decision is that of the Court of Appealof New South Wales in Lynch v. Lynch [1991] 25 N.S.W.L.R. 411. In thiscase the Court's reasoning was expressly related to the circumstance that the claim arose out of an accident which was the subject of a particular statutory compulsory insurance scheme. I do not think it would be helpful to encumber this opinion with a detailed examination of the case. I am content to say that I agree with the criticism of the decision by the Full Court of the Supreme
Court of Tasmania in Motor Accidents Insurance Board v. Pulford, who declined to follow it.

31.	In Narayan v Narayan, High Court, Lautoka, Civil Action No: HBC 22 of 2003L (08 September 2009) Inoke J said: 

"The plaintiff said he was cared for by his wife after the accident. This care is likely to continue into the future. This is care over and above that which a wife would give to an otherwise healthy husband and I believe she should be compensated. As I have said elsewhere, the time for gratuitous care by relatives is long gone. It was nearly 8 years ago that the accident happened. I arrive at the appropriate value of compensation by taking $40.00 a week as the appropriate cost of care over those 8 years which computes to $40.00 x 52 x8 = $16,640.00. I make no allowance for future care because over time this need may dissipate." 

32.	 In Singh v Lal HBC 303 of 2009 Justice Mutunayagam applied Australian High Court case of Vand Gervan v Fenton 109 ALR 283 and awarded a damage based on commercial rate of the services provided by the third party gratuitously. Accordingly, the Plaintiff should prove the commercial rate for such services through evidence and the Plaintiff did not lead any evidence to that effect or agree with the Defendant on a figure that is acceptable.

33.	 In Vand Gervan v Fenton109 ALR 283 at 291 it was stated

'At the trial, the parties agreed on the cost of providing full-time home nursing care by non-medically trained person.'

So, in that case parties have been adequately informed of the need and they have also agreed to the cost of providing a commercial rate, which the court granted in appeal.

34.	In sharp contrast,the present action the Plaintiff did not claim such an item in its pleading and also did not lead evidence to quantify either the commercial rate or any other (i.e. lost income of the family, lost wages). No such issue was raised or agreed in the pre-trial minutes, indicating no such issue was prevalent before the trial or at the trial. I cannot take a figure from air and award compensation to the Plaintiff when the Defendant was unaware of such a claim. If he knew he would have provided evidence to quantify or this would have agreed between the parties considering that parties have agreed to all the special damages and even for interest rates applicable to general and special damages. So, I do not award compensation for the services rendered by the wife since there is no evidence to quantify such services at the trial.

G.	FUTURE MEDICAL EXPENSES

35.	Though there were some evidence indicating that the Plaintiff would be subjected to a surgery in future the evidence is that it can be obtained free of charge from the Public Hospital. Since the Plaintiff was treated at the same Public Hospital the Plaintiff would obtain the treatment from the same hospital. The Plaintiff in his evidence did not indicate any dislike or preference to a private hospital and even stated that he is awaiting surgery, from the same public hospital. The Plaintiff needs some medications to relieve the pain and after surgery he may need some further medication and in the circumstances I would award $3000 as damages for future medical expenses.

H.	CONCLUSION

36.	The Plaintiff is granted $25,000 as general damage for pain and suffering and loss of amenities of life and for past economic loss he is awarded a sum of $15,295 and a special damage of $635. In the pretrial conference the parties agree to the interest on the general damages 7% p.a form the date of writ to date of trial (i.e.9.11.2012) and for special damages 7% p.a from the date of accident to the date of trial. The Plaintiff is granted a cost of $2,000 as the cost of this action. Since I have been informed by the Defendant that an interim award had been made for $10,000 that should be deducted from the total sum.

I.	FINAL ORDERS 

i.		General Damages	$25,000	
ii.		Interest on General Damages @ 7% for 3 years(as agreed by the parties from the date of writ to trial) 	$ 4,200	
iii.		Special Damages 	$ 635	
iv.		Interest on special damages @ 7% for 3 years and 6 months 	$ 156	
v.		Past Economic Loss 	$15,295	
vi.		Future Medical Expenses 
	$ 3,000	
	Total	$48,286	

a)	Total award for damages $38,286 (i.e. $48,286 - $10,000).

b)	The Plaintiff is granted a cost of $2,000 assessed summarily.

Dated at Suva this 19th day of February, 2013.

………………………………………….
Master Deepthi Amaratunga
High Court, Suva