Toohey v Hollier [1955] HCA 3

High Court of Australia Dixon, C.J. McTiernan and Kitto JJ. Toohey v Hollier [1955] HCA 3

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Mar. 2, 1955 Dixon, C.J. McTiernan and Kitto JJ.

This appeal concerns an assessment of damages awarded to a husband in an action of negligence which he and his wife brought in the Supreme Court of Western Australia for the recovery of damages suffered by them respectively in consequence of bodily injuries sustained by the wife. The appellant is the defendant in the action which was tried by Wolff J. The respondent is the male plaintiff in the action. No complaint is made of the award of damages to the female plaintiff and she is not a party to the appeal. The bodily injuries which she sustained were inflicted in a collision which occurred on 14th January 1952 at a junction of two streets in East Perth between a motor vehicle in which she was a passenger and a motor vehicle driven by the defendant. At the trial the defendant did not deny his liability to either party on the cause or causes of action. In the case of the female plaintiff the sole question was the amount at which the damages recoverable by her should be assessed on the ordinary principles that apply when serious bodily injuries are occasioned. In the case of the male plaintiff the defendant conceded that he was entitled to recover certain expenses to which he had been put in consequence of his wife's injuries. But the male plaintiff's claim was not confined to such expenses and the parties were not at one as to the basis upon which anything beyond them should be assessed. His claim as he pleaded it was that as a result of the injuries sustained by his wife he lost her society and her services and was put to expense in nursing her and for medical attendances and was compelled to employ an additional servant for thirty-seven weeks. Wolff J. fixed the general damages recoverable by the female plaintiff at £3,500. This covered pain and suffering and other consequences of her bodily injuries. A small sum of £20 16s. 0d. was added for special damages consisting in the loss of a watch and certain other articles. To the male plaintiff his Honour awarded a sum of £568 3s. 0d. described as special damages consisting in medical and surgical expenses arising from his wife's injury, wages paid to a housekeeper for thirty-seven weeks, the value of the latter's board and lodging and certain other out-of-pocket expenses. His Honour also awarded to the male plaintiff, under the description of general damages in respect of his claim, an amount which he assessed at £1,000. The defendant's appeal is limited to this award of £1,000 described as general damages. The defendant asks that the judgment in favour of the male plaintiff be reduced to the sum of £568 3s. 0d. or such other sum as the Court may think proper upon the ground that damages ought not to have been awarded to the male plaintiff for loss of consortium and that the sum assessed was excessive. The appellant maintains that if any sum could be awarded in respect of loss of consortium in addition to the items included in the assessment of £568 3s. 0d. it could only be an estimate properly made of the expenses which the male plaintiff might be expected to incur in the future for hospital and medical treatment of his wife and the replacement of her services.