Nguyen v Nguyen [1990] HCA 9

High Court of Australia Brennan, Deane, Dawson, Toohey and McHugh JJ. Nguyen v Nguyen [1990] HCA 9

ORDER Appeal allowed with costs. Set aside the orders of the Full Court of the Supreme Court of Queensland and order that the matter be remitted to that Court for further hearing and determination in accordance with the judgment of this Court. Order that the costs of all proceedings in the Supreme Court be in the discretion of the Full Court.

Cur. adv. vult.

The following written judgments were delivered:—

1990, March 7 Brennan J.

I agree generally with the reasons of Dawson, Toohey and McHugh JJ. for overruling the decisions of the Full Court of the Supreme Court of Queensland in Seymour v. British Paints (Australia) Pty. Ltd. [1] and Williams v. Fleming [2] and for allowing the appeal in this case. However, I would add some observations on the troublesome problem of assessing damages for loss of domestic services. In Horton v. Byrne [3] , this Court laid down the measure of damages under Lord Campbell's Act:

It is compensation for material loss. The compensation should represent the balance of the loss, reduced to terms of money, which the deceased's relatives incur in consequence of his death after deducting the pecuniary gains which on the other hand accrue to them from that event. The loss is usually a prospective one and all reasonable expectations of material advantage are to be taken into account. The words of the statute are "such damages as they (the jury) think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought". Greer, J., in Baker v. Dalgleish Steam Shipping Co. [4] , after quoting these words, said: "It is well settled that the damages are confined to compensation for the loss of material benefits or of the reasonable prospect of such benefits occasioned by the death. If by reason of the death the persons for whom the action is brought are as well or better off than they were before there is no cause of action." A loss of domestic services is a material loss. However, to identify lost domestic services or the loss of a reasonable prospect of domestic services as a material loss sounding in damages is to solve but part of the problem; next, it is necessary to assess the compensation to be awarded for that loss. 1. [1967] Qd R. 227. 2. Unreported; 23 February 1979. 3. (1956) 30 A.L.J. 583, at p. 585. 4. [1921] 3 K.B. 481, at p. 485.