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. When a claim is made for the loss of the services which would or might have been provided by a deceased spouse, the entire family situation before the death must be compared with the entire family situation after the death. By that comparison, it is possible to ascertain the "balance of the loss" — on the one hand, the savings made by the plaintiffs in consequence of the death and their exemption from providing services to the deceased spouse; on the other, the benefits conferred on the plaintiffs by the deceased spouse — and the true nature and extent of the "injury resulting from [the] death to the parties". When that comparison is made and the "balance of the loss" is ascertained, evaluation of the loss can proceed. An evaluation must be made not only by reference to the loss considered, so to speak, in isolation but also by reference to any effect of the loss on the plaintiff provided the effect is not too remote. Thus, in assessing damages for a tortiously inflicted personal injury, the court has regard to three commonly encountered sequelae to personal injury identified by Windeyer J. in Teubner v. Humble [5] : Broadly speaking there are, it seems to me, three ways in which a personal injury can give rise to damage: First, it may destroy or diminish, permanently or for a time, an existing capacity, mental or physical: Secondly, it may create needs that would not otherwise exist: Thirdly, it may produce physical pain and suffering. Of course, not every personal injury destroys or diminishes earning capacity, or creates a need, or produces physical pain and suffering. These are simply heads of damage which must be taken into account when the facts show that the personal injury has had one or more of those effects. In like manner, when the plaintiffs in a Lord Campbell's Act claim have lost the services or the reasonable prospect of the services which would have been rendered by the deceased, the loss may produce a need for services of a like kind. In both contexts, "need" connotes a requirement the satisfaction of which alleviates or eliminates the loss or its sequelae. Yet a significant difference can be observed between the making of assessments in personal injuries claims and the making of assessments in Lord Campbell's Act claims. 1. (1963) 108 C.L.R. 491, at p. 505. When a personal injury creates a need which can be met by the provision of services, the physical disability of the plaintiff not only occasions the need but is usually of such a kind that it precludes the plaintiff from satisfying it himself. Medical and nursing attention, rehabilitation services, or help in performing domestic chores are familiar examples. When a loss of services in a Lord Campbell's Act claim creates a need, however, the plaintiff can often satisfy the need himself. In either case the question may arise: should the tortfeasor be liable to pay for outside assistance to satisfy the need? That question usually requires an affirmative answer in answering a personal injury claim but the answer is likely to be more problematical in assessing a Lord Campbell's Act claim. Why the difference? Because often the plaintiffs in a Lord Campbell's Act claim can reasonably be expected so to adjust their lifestyles as to modify the need or to satisfy the need themselves, without significant depreciation of their lifestyles. That is not to deny the reality of the loss or of the need it creates, but an adjustment which can reasonably be expected and which allows the plaintiffs to modify the need or to satisfy their needs is an adjustment that the plaintiffs are bound to make to mitigate their loss. Reciprocally, the tortfeasor is liable to pay for outside assistance if, but only if, such assistance is reasonably necessary to satisfy the need occasioned by the loss. If it is not reasonably necessary to bring in outside assistance because the need can be met by the plaintiffs themselves, damages are limited to an allowance for the increased burdens (if any) assumed or to be assumed by the plaintiffs. If it is reasonably necessary for the plaintiffs to bring in outside assistance, the tortfeasor is liable to pay for that assistance. The test of reasonable necessity to satisfy the needs created by the loss draws upon contemporary social standards and expectations as well as the particular circumstances of the case. It is as erroneous in principle as it is false in fact to treat the commercial cost of providing substitutionary services for the services lost as the invariable yardstick of the assessment. Frequently, it would be quite unreasonable to bring in outside assistance at commercial rates to perform substitutionary services for the deceased's family when those services can be performed by family members; frequently, it would be unreasonable to bring in outside assistance at commercial rates to provide the surviving spouse with the services which were provided by the deceased spouse for the benefit of them both. On the other hand, the tender ages of children, conditions of health or the demands of an outside occupation, or some other factor may make it reasonably necessary to bring in outside assistance even at commercial rates to provide services in substitution for all or some of the domestic services lost. That is not to say that the liability of the defendant is necessarily determined by the cost to the plaintiffs of obtaining substitutionary services. Services may be provided by relatives or friends gratuitously or at small cost as a benevolent gesture to the family and, in such a case, it may be that the value of the services is to be assessed at a sum greater than the charge made to the family. For example, where the benevolent provider gives up his or her own employment to provide the plaintiffs with substitutionary services, the commercial cost of services of that kind or the income which the provider has lost may be an appropriate starting point in the assessment. However, the factors relevant to the reasonable necessity of bringing in outside help to provide substitutionary services include the actual cost of securing those services. In my opinion, damages under Lord Campbell's Act in respect of the provision of substitutionary services are assessed according to the same principles as those which govern the assessment of damages in personal injury cases in respect of needed services. Those principles were stated by Gibbs J. in Griffiths v. Kerkemeyer [6] : The matter should, as it were, be viewed in two stages. First, is it reasonably necessary to provide the services, and would it be reasonably necessary to do so at a cost? If so, the fulfilment of the need is likely to be productive of financial loss. Next, is the character of the benefit which the plaintiff receives by the gratuitous provision of the services such that it ought to be brought into account in relief of the wrongdoer? If not, the damages are recoverable. These are the principles which ought to have guided the assessment of damages in this case. For the reasons given by Dawson, Toohey and McHugh JJ., it is necessary to remit the matter to the Full Court for reconsideration and assessment of the plaintiffs' damages. 1. (1977) 139 C.L.R. 161, at pp. 168-169. The Full Court will assess damages for the net loss of services occasioned by the death of the deceased according to its view of the likely family history had the deceased not been killed and of the family history since her death. In the particular circumstances of this case, it is possible, but not inevitable, that the Court will make an assessment on a basis which will raise the question whether the receipt by the first appellant of a supporting parent's benefit should be deducted, in part or in whole, from the amount provisionally assessed. The question of deductibility of a supporting parent's benefit was advanced in argument before this Court as a question of principle but that question may not fall for consideration unless the basis adopted for provisionally assessing damages would yield compensation to Mr. Van Nguyen for his own loss of earnings without taking account of his receipt of the benefit. It is premature to consider the question of deductibility in the absence of an assessment which raises that question. All that can properly be said is that a supporting parent's benefit is not within the categories of benefits which s. 15C of the Common Law Practice Act 1867 Q. excludes from consideration and that, absent a contrary statutory provision, it would be wrong to award a surviving spouse full compensation for earnings lost by the assumption of domestic burdens without taking some account of statutory benefits to which the spouse is entitled by reason of his or her assumption of precisely those burdens. I respectfully agree with the majority judgment as to the Full Court's practice in following its previous decisions. I would allow the appeal with costs, set aside the orders of the Full Court of the Supreme Court of Queensland and remit the matter to that Court to rehear the appeal to that Court and to determine that appeal in accordance with this judgment. The costs of the proceedings in the Supreme Court will be in the discretion of the Full Court. Deane J. The facts and issues involved in this appeal and the background of decisions in the Supreme Court of Queensland in the present and earlier cases are set out in the joint judgment of Dawson, Toohey and McHugh JJ. I shall endeavour to avoid unnecessary repetition. On the question whether the Full Court of the Supreme Court is bound to follow and apply its own earlier decisions in the absence of some contrary decision of this Court, I agree with what is said in that joint judgment. There remains for consideration the question of the entitlement of the appellant husband and infant children to an award of compensation for the loss of the household services of the deceased as a wife and mother. Lord Campbell's Act (the Fatal Accidents Act 1846 U.K.: 9 & 10 Vict. c. 93) introduced a new cause of action into the law of England. It was adopted in all the Australian colonies and, subject to procedural modifications and the exclusion of account being taken of certain payments in the assessment of damages, persists in Queensland in its original form (Common Law Practice Act 1867 Q., ss. 12-15C). The statute did not impinge upon the vexed area of the common law in which, as a result of the continuing effect of outmoded notions of the status of women and the relationship between husband and wife, a husband is accorded the right to recover damages from a wrongdoer for loss of the "consortium" (including "servitium") of his incapacitated wife but a wife is denied any corresponding right to recover damages from a wrongdoer who has incapacitated her husband (see, e.g., Guy v. Livesey [7] ; Hyde v. Scyssor [8] ; Wright v. Cedzich [9] ; Best v. Samuel Fox & Co. Ltd. [10] ; and, for reference to some statutory modifications of the common law position, Fleming, Law of Torts, 7th ed. (1987), p. 624, and Suppl. (1989), p. 14). The right of action which Lord Campbell's Act created was in an area where the common law conferred no right of action at all, namely, where the injured person had died. In that area, as if to pile anomaly upon anomaly, the unprincipled "rule" in Baker v. Bolton [11] to the effect that "the death of a human being could not be complained of as [a civil] injury" prevailed to preclude the right of a husband to sue for damages for loss of consortium and to produce, to that extent, equality between the position of husband and wife (see Admiralty Commissioners v. S.S. Amerika [12] ; Woolworths Ltd. v. Crotty [13] ; and, for helpful and thoughtful recent discussion, Swan v. Williams (Demolition) Pty. Ltd. [14] ). 1. (1618) Cro. Jac. 501 [ 79 E.R. 428]. 2. (1619) Cro. Jac. 538 [ 79 E.R. 462]. 3. (1930) 43 C.L.R. 493, at pp. 534-535. 4. [1952] A.C. 716. 5. (1808) 1 Camp. 493 [170 E.R. 1033]. 6. [1917] A.C. 38. 7. (1942) 66 C.L.R. 603. 8. (1987) 9 N.S.W.L.R. 172, at pp. 175-184, 190-191. The right of action which Lord Campbell's Act created was neither worded in discriminatory terms nor confined by traditional notions of the content of the husband's "right" to the "consortium" or "servitium" of his wife. It is for the benefit of a family unit which includes parents and children as well as surviving spouse. The damages recoverable in such an action are "such damages as [the jury or judge] may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought". The amount of damages so recovered "shall be divided amongst the before- mentioned parties in such shares as the [jury or judge] shall find and direct". In these circumstances, there is no warrant for confining the damages recoverable in a Lord Campbell's Act action within the limits of the measure of damages applicable in an action where the injured person has not died. The measure of the damages recoverable in a Lord Campbell's Act action is that specified by the statute. It is such damage as is "proportioned" to that "injury". Not surprisingly, however, the breadth of the word "injury" and the vagueness of the word "proportioned" have combined to provide new fields for judicial exegesis. The effect of the decided cases has been to define the "injury" for which damages can be recovered in a Lord Campbell's Act action in a way which excludes damages for some of the more imponderable aspects of the detriment which might be sustained on the death of a spouse, parent or child. The reason for this judicial restriction of the scope of the action was explained by Jeffrey J. in Naum v. Nominal Defendant [15] : The inexactitude of the statute's language made the judges of a century ago fearful of the liberties a jury might take with the defendant's purse were their deliberations not to be confined by limitations about which the statute itself is quite silent. It was Coleridge J.'s opinion in Blake v. Midland Railway Co. [16] , expressed, interestingly enough, in a judgment in which the sponsor of the Act through Parliament concurred, that, if it permitted a calculation by the jury other than of the pecuniary loss sustained by members of the family from the death of one of them, "a serious danger might arise of damages being given to the ruin of defendants". Jeffrey J.'s statement that Lord Campbell C.J. "concurred" in the judgment in Blake's Case is, perhaps, open to question in the light of the content of some of his Lordship's interventions in the course of argument of that case [17] and of the fact that the report of the case makes a point of noting [18] that "Coleridge and Crompton JJ. were the only Judges in Court" at the time when judgment was delivered. Be that as it may, Blake's Case has long been accepted as establishing that, in a Lord Campbell's Act case, "[n]othing can be given by way of solatium for the injured feelings of the relatives All that can be dealt with or assessed is pecuniary loss" (Barnett v. Cohen [19] , per McCardie J.). 1. [1974] 2 N.S.W.L.R. 14, at p. 16. 2. (1852) 18 Q.B. 93, at p. 111 [118 E.R. 35, at p. 42]. 3. (1852) 18 Q.B., at pp. 106-108 [118 E.R., at p. 40]. 4. (1852) 18 Q.B., at p. 108n. [ 118 E.R., at p. 40n.]. 5. [1921] 2 K.B. 461, at p. 469. The cases also establish that the "injury" or "pecuniary loss" for which damages can be recovered in a Lord Campbell's Act action is "net loss, on a balance of losses and gains " (Public Trustee v. Zoanetti [20] , per Latham C.J.; and see also Lincoln v. Gravil [21] ). Dixon J. summarized the position (Zoanetti [22] ) as follows: in ascertaining the pecuniary loss resulting from [the] death [of the deceased] there must be taken into consideration, on the one side, the reasonable expectations of benefit upon which the claimant would have been entitled to rely, had his life not been brought to an end, and, on the other side, the pecuniary benefits, arising on his death, to which the claimant had [scil. "has"] a reasonable expectation, whether as of right or otherwise. Subsequently in his judgment [23] , Dixon J. pointed out that this "rule", which requires that "in estimating the pecuniary injury caused by the death of the deceased" account be taken of "the benefits accruing as well as [of] the benefits lost", is "no more than a specific application of a principle governing the ascertainment of loss arising from a given occurrence in every case of legal responsibility". 1. (1945) 70 C.L.R. 266, at p. 271. 2. (1954) 94 C.L.R. 430, at p. 441. 3. (1945) 70 C.L.R., at pp. 276-277. 4. (1945) 70 C.L.R., at p. 278. The word "pecuniary" in the above quotations is not used in a narrow or technical sense. It is used in conjunction with "loss" or "gain" to connote the loss or gain of "material" benefits as distinct from emotional or non-material benefit such as love or companionship. Again, to quote from Dixon J.'s judgment in Zoanetti [24] : "The basis" (of the action) "is not what has been called solatium, that is to say, damages given for injured feelings or on the ground of sentiment, but damages based on compensation for a pecuniary loss": per Lord Haldane, Taff Vale Railway Co. v. Jenkins [25] . The pecuniary loss to which the damages are confined consists in the loss of material benefits or of the reasonable prospect of material benefits which depended on the continuance of the life of the deceased. What must be ascertained is whether any and what loss has been sustained by the relatives of the deceased after comparing the material benefits depending upon his life with any material gains accruing from his death. 1. (1945) 70 C.L.R., at p. 279. 2. (1913) A.C. 1, at p. 4. It has long been recognized that the loss of gratuitous domestic services, which are replaced or will be replaced at pecuniary cost, may provide a basis for compensation under Lord Campbell's Act if the circumstances are such that "there was a reasonable prospect of [the services] being rendered freely in the future but for the death" (Berry v. Humm & Co. [26] , per Scrutton J.; and see also, e.g., Feay v. Barnwell [27] ; Marsh v. Absolum [28] ; Hine v. O'Connor [29] ; O'Connor v. Lloyd [30] ; Price v. Girle [31] ). The judgments in most, if not all, of those cases were, however, worded in terms that suggested that the damages awarded were, in the words of Scrutton J. (Berry v. Humm & Co. [26] ), for the actual past and future "monetary loss incurred by replacing [the lost] services" (see, to the same effect, Hine v. O'Connor [32] , per Abbott J.). In Seymour v. British Paints (Australia) Pty. Ltd. [33] , the Full Court of the Supreme Court of Queensland (Wanstall and Douglas JJ.; Gibbs J. dissenting) held that damages for the loss of such services which would have been rendered by a deceased wife could not be recovered in a Lord Campbell's Act case where the evidence failed to show "that expense has been incurred or is likely to be incurred by the widower in employing a servant to keep house for him, or to come by the day and clean and wash and iron, or in having his washing done at a laundry or his meals prepared by a caterer" [34] , per Wanstall J. The basis of the majority decision was that, in circumstances where there was "no prospect of the [claimant's] incurring expense in employing a housekeeper", it was "impossible to quantify as "a hard matter of pounds, shillings, and pence" the value to him of future domestic services which his wife may have performed if she had survived" [35] . Seymour has not, however, been followed in other jurisdictions in this country (see, e.g., Naum v. Nominal Defendant; Cornish v. Watson [36] ; Thompson v. Mandla [37] ; Budget Rent-A-Car Pty. Ltd. v. Van Der Kemp [38] ; Swan v. Williams (Demolition) Pty. Ltd. [39] ; Doody v. Federation Insurance [40] ; and note the earlier case of Tong v. Purdy [No. 2] [41] referred to by Gibbs J. in Seymour [42] ). The approach which it reflects does not, in my view, lie well with that accepted by this Court in Griffiths v. Kerkemeyer [43] where it was held that the fact that financial expenditure was not and will not be incurred in obtaining domestic services does not mean that it is impossible to assess monetary compensation for the need of such service. It is true that the assessment of the damages "proportioned" to the injury sustained may be more difficult in a case where the services have not been and will not be replaced than in a case where the actual cost of replacement services has been incurred and is available to assist in determining the value of the lost services. In both cases, however, the injury is the same. It is the loss of the services: "the widower, who does without and fends for himself, suffers loss as much as the widower who replaces the lost services with those of a housekeeper" (Budget Rent-A-Car Pty. Ltd. v. Van Der Kemp [44] , per McHugh J.A.; and see, generally, Wilson v. Rutter [45] ; Rowe v. Scanlan [46] ). That loss is a loss of a material benefit which is capable of being valued in monetary terms. In that regard, the reasoning of Gibbs J. in the following extract from his Honour's judgment in Seymour [42] must, in my view, be accepted as correct: When it is held that a husband who has been deprived of his wife's services by her death is entitled to damages, that can only be because her services were a benefit reducible to money value. Domestic services do in fact have a pecuniary value which is capable of assessment, and the cases to which I have referred must, in my opinion, rest on the ground that the deprivation of services is just as much a pecuniary loss as the deprivation of income or of contributions of food and clothing. The damages have to be assessed as at the date of the wife's death and at that date the husband had lost his wife's services and that was a pecuniary loss because the services had a pecuniary value. Evidence of subsequent events is of course admissible to show what the facts in reality were and to render it unnecessary for the court to speculate about probabilities when the facts are known: Williamson v. John I. Thornycroft & Co. [47] ; Willis v. The Commonwealth [48] . However, the evidence that the husband does not intend to replace the wife's services does not mean that they had no value. It merely shows that he is prepared to use his own time and labour instead of expending money in replacing the services. If the wife had contributed, not services, but additional foodstuffs for her husband's meals, it would seem to me that his damages should be assessed having regard to the pecuniary value of the contributions of which the death had deprived him, even if it appeared that he did not intend to supply himself with the additional foodstuffs, but intended to use his damages, when he obtained them, in some other way. The use to which he proposes to put his damages is irrelevant to their assessment (cf. Blundell v. Musgrave [49] , per Fullagar J. 1. [1915] 1 K.B. 627, at p. 631. 2. [1938] 1 All E.R. 31. 3. [1940] N.Z.L.R. 448. 4. [1951] S.A.S.R. 1. 5. [1962] W.A.R. 37. 6. [1966] Q.W.N. 50. 7. [1915] 1 K.B. 627, at p. 631. 8. [1951] S.A.S.R., at p. 12. 9. [1967] Qd R. 227. 10. [1967] Qd R., at p. 228. 11. [1967] Qd R., at p. 227. 12. [1968] W.A.R. 198. 13. [1976] 2 N.S.W.L.R. 307. 14. [1984] 3 N.S.W.L.R. 303. 15. (1987) 9 N.S.W.L.R. 172. 16. (1977) 16 S.A.S.R. 173. 17. [1941] V.L.R. 147. 18. [1967] Qd R., at p. 230. 19. (1977) 139 C.L.R. 161. 20. [1984] 3 N.S.W.L.R., at p. 309. 21. (1955) 73 W.N.(N.S.W.) 294, at p. 298. 22. [1969] 1 N.S.W.R. 43, at p. 45. 23. [1967] Qd R., at p. 230. 24. [1940] 2 K.B. 658. 25. (1946) 73 C.L.R. 105. 26. (1956) 96 C.L.R. 73, at p. 95. Accordingly, Seymour v. British Paints and Williams v. Fleming [50] , which purportedly applied Seymour , must be overruled to the extent that they stand as authorities precluding recovery of compensation for lost domestic services which are not replaced at pecuniary cost. In referring to "domestic services", I intend to include ordinary housekeeping, house maintenance and gardening services and any additional material services, such as hairdressing, dressmaking or teaching, which one spouse may render to the other spouse or to her or his children. 1. Unreported; Supreme Court of Queensland (Full Court); 23 February 1979. That is not to say that a surviving spouse, child or parent is automatically entitled to the benefit of a substantial award of damages against the wrongdoer in every case where a deceased provided, and was likely to continue to provide, gratuitous and substantial domestic services. Nor does it necessarily mean that any of the claimants in Seymour v. British Paints and Williams v. Fleming was entitled to a substantial award of damages in circumstances where they were, apparently, all able-bodied and capable of looking after themselves. As has been seen, it is settled that the "injury" or "pecuniary loss" for which damages can be recovered is net loss, on a balance of losses and gains. Commonly, in a modern marital relationship in this country, the spouses share, to a greater or lesser extent, the necessary domestic chores and responsibilities. When one spouse dies, the assessment of the value of the lost benefit of the gratuitous services of the deceased as spouse or homemaker must take account of the fact that those services were, at least in part, for the benefit of the deceased as well as for the benefit of the surviving spouse and of the fact that the surviving spouse is relieved of the burden of rendering gratuitous services for the deceased. The injury constituted by the loss may be reduced by the prospect of remarriage. Against the value of the lost services, there must be debited any financial benefit accruing to the surviving spouse by reason of the death. Where the surviving spouse was the sole breadwinner, an award of damages for loss of gratuitous services will only be justified if the value of those services exceeds the benefit of being relieved of any obligation of financial support. Moreover, the entitlement of a relative in a Lord Campbell's Act action is to such damages as are "proportioned" to the injury sustained by reason of the death. The word "proportioned" plainly introduces an element of what is reasonable in the circumstances. It follows that the mere fact that a deceased would, if he or she had lived, probably have provided gratuitous domestic services as a spouse, parent or child does not mean that the surviving relative is automatically entitled to damages calculated by reference to what it would cost in some actual or hypothetical marketplace to acquire all of the services which he or she would probably have enjoyed but for the death. The notion of what represents reasonable or proportionate compensation must take account of the need for the relevant services in the circumstances of the particular case. So to say is not to confuse the loss of services with the need for them. It is simply to recognize that it would be unreal to seek to ascertain the damages "proportioned" to the "injury" sustained by a particular claimant by way of loss of services without taking account of whether there was a reasonable need of the services or, in an extreme case, whether the applicant might even be properly seen as better off without them. Put differently, the damages "proportioned" to the "injury" which a particular claimant sustains by way of lost gratuitous services cannot be realistically assessed without regard being paid to the question whether the particular services were superfluous to the reasonable needs of the particular claimant. In a context where the ultimate burden of liability to pay damages under a Lord Campbell's Act action will ordinarily be cast upon the community generally through the direct and indirect cost of insurance premiums, that question must be answered by reference to current local standards and values. For example, it could scarcely be accepted as reasonable according to present-day standards and values in this country that the circumstance that it was probable that an able-bodied twenty-year-old man, who was unlikely to remarry or marry, would have received gratuitous and complete household care and services from a self-supporting wife or mother for a period of many years should create a situation where domestic inaction was rewarded by what represented, for practical purposes, the objective value of the services of a full-time housekeeper for the foreseeable future. In a modern context, the circumstances in which it will be reasonable for substantial compensation to be awarded to an adult on the basis that he or she is to be compensated for the loss of the services of a full-time or part-time daily housekeeper, as distinct from occasional domestic help, will, in my view, ordinarily be limited to those cases in which some special need can be identified, such as infant children, old age, injury, infirmity or the unusual demands of a particular occupation. The most obvious of such cases of special need is a case where the surviving spouse is left not only to look after his or her own needs but must assume sole responsibility for the care of infant children. The present is such a case. It follows that the appellants, being the surviving spouse and infant children of the deceased, were not precluded from obtaining an award of compensation for the loss of domestic services of the deceased by reason of the fact that those services had not been and were not likely to be replaced by hired help. That being so, the appeal must be allowed. I agree with Dawson, Toohey and McHugh JJ. that the appropriate course to be followed in all the circumstances is to remit the matter to the Full Court of the Supreme Court so that that court can review the assessment of damages made by the learned Master freed from the authority of Seymour v. British Paints and the subsequent case of Williams v. Fleming. As Thomas J. demonstrates in his judgment in the Full Court, the assessment of damages in circumstances where neither the deceased nor the surviving spouse was in employment and where the household income was essentially derived from social service benefits gives rise to some practical questions which are not free of all difficulty. This Court has not, however, heard argument on those questions and it is appropriate that they be left for the consideration of the Full Court. Dawson, Toohey and McHugh JJ. This action was brought under the Queensland equivalent of Lord Campbell's Act, namely, ss. 12 to 15C of the Common Law Practice Act 1867 Q.. The plaintiffs claimed damages arising from the death of Nu Thi Nguyen. The deceased died as the result of injuries received when a motor car, driven by the defendant, in which she was a passenger, left the road and collided with a power pole. The plaintiffs were the husband of the deceased and their two children, born on 20 May 1976 and 8 September 1980 respectively. Negligence was admitted and the action proceeded as an assessment of damages before a Master of the Supreme Court. Damages were awarded in the sum of $179,573 of which the sums of $28,000 and $34,000 were apportioned to the two children, the second and third plaintiffs, respectively. The total sum was arrived at as an assessment of the value of the housekeeping services lost to the family as a result of the death of the deceased, to cover a period ending upon the younger child attaining the age of sixteen years. In fact the husband has not engaged anyone to perform housekeeping services for himself and the two children, nor does he intend to. Apart from a period when a relative helped out temporarily, the husband has himself performed the functions which had previously been performed by his wife. The family, who are of Vietnamese origin, arrived in Australia in November 1980. The wife was killed in July 1981. The husband had obtained work as a labourer at a brickworks for a short time but, apart from that, has not worked since his arrival in Australia. The wife never worked. The family has depended on unemployment benefits and, after the death of the wife, a supporting parent's benefit. The defendant appealed against the award of damages to the Full Court. The point taken was that, save for a small amount of approximately $6,000, the plaintiffs were not entitled to any recompense for the loss of the wife's housekeeping services because those services have been and will be performed by the husband at no cost. This point was upheld by a majority in the Full Court and the damages were reduced to the sum of $6,079, apportioned as to $1,079 and $2,000 to the second and third plaintiffs respectively. The majority applied the previous decisions of the Full Court in Seymour v. British Paints (Australia) Pty. Ltd. [51] and in Williams v. Fleming [52] . In Seymour , a husband's claim under the Common Law Practice Act for damages for the loss of his wife's domestic services was rejected because the husband did not, and did not intend to, replace his wife by employing a housekeeper. It was held (Wanstall and Douglas JJ., Gibbs J. dissenting) that: " there being no prospect of the appellant's incurring expense in employing a housekeeper, it is impossible to quantify as "a hard matter of pounds, shillings, and pence" the value to him of future domestic services which his wife may have performed if she had survived." [53] , per Wanstall J. In so holding, the majority appear to have thought that they were doing no more than applying the well-established principle that under Lord Campbell's Act damages are confined to compensation for the loss of material benefits, or the reasonable prospect of such benefits: Baker v. Dalgleish Steam Shipping Co. [54] ; Horton v. Byrne [55] . Indeed, the words quoted by Wanstall J. are those used by Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd. [56] , where, in describing a claim by a widow in respect of the death of her wage-earner husband, he said: There is no question here of what may be called sentimental damage, bereavement or pain and suffering. It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities. 1. [1967] Qd R. 227. 2. Unreported; 23 February 1979. 3. [1967] Qd R., at p. 227. 4. [1921] 3 K.B. 481, at p. 485. 5. (1956) 30 A.L.J. 583, at p. 585. 6. [1942] A.C. 601, at p. 617. But as Gibbs J. pointed out in dissent, domestic services have a pecuniary value which is capable of assessment and deprivation of those services "is just as much a pecuniary loss as the deprivation of income or of contributions of food and clothing" [57] . He went on to make it clear that the fact that a husband does not intend to replace the services "does not mean that they had no value. It merely shows that he is prepared to use his own time and labour instead of expending money in replacing the services". [57] 1. [1967] Qd R., at p. 230. 2. [1967] Qd R., at p. 230. Subsequently, at first instance in Williams v. Fleming [58] , Connolly J. purported to follow Seymour in refusing to award damages to a husband and his two daughters under Lord Campbell's Act for the loss of the wife's domestic services. The Full Court upheld the decision of Connolly J., merely endorsing his reasoning. Although Connolly J. purported to follow Seymour , it would seem that he regarded that case as turning upon somewhat different considerations from those upon which it was actually decided. 1. Unreported; 21 March 1978. In Williams v. Fleming the two daughters were, apparently, of such an age as to be able to care for themselves as well as for their father. Connolly J. observed that there was no suggestion that it was necessary to replace the wife's services. He continued: By this I mean that the male plaintiff is in good health and is capable of caring for himself. It is not a case of an invalid husband who is forced to turn to others, and it is not a case where there are young children whom a father cannot care for without bringing in outside help. Since the death of Mrs. Williams, Ruth and subsequently Margaret, have borne the brunt of running the household, but they were, after all, grown women and living in it and this seems to me to be a perfectly natural thing for them to have done. Of course in the normal course of events Margaret may be expected to leave home at some time in the future but there was no suggestion by the plaintiff that he would then be forced to obtain the services of a housekeeper. In this state of the evidence it seems to me that the decision in Seymour v. British Paints (Australia) Pty. Ltd. governs the situation. Seymour , of course, merely held that a pecuniary value cannot be placed upon housekeeping services which are not to be replaced. In the passage cited Connolly J. expresses the view that, having regard to the domestic set-up in the Williams' household, there was no need to replace the deceased wife's services and that it was for that reason that damages were not recoverable. Indeed, he went on to say of Seymour : As I read that decision of the Full Court, it is authority for the proposition that it is not the value of a deceased wife's services which is allowable as damages in an action under Lord Campbell's Act, but the need to replace them measured by the cost, incurred or likely to be incurred, of doing so. Seymour did not go as far as that, but it had been submitted to Connolly J. that the case of Griffiths v. Kerkemeyer [59] , which had been decided subsequently by this Court (Gibbs, Stephen and Mason JJ.), was inconsistent with Seymour . Connolly J. appears to have been prompted by this submission to express the effect of Seymour as he did in order to support his conclusion that it was consistent with Griffiths v. Kerkemeyer. He undertook this exercise expressing doubts whether Griffiths v. Kerkemeyer, being a common law action for damages for personal injuries, had any direct application to a claim under Lord Campbell's Act. As will appear, we think that his doubts were well-founded. 1. (1977) 139 C.L.R. 161. In Griffiths v. Kerkemeyer it was held that the plaintiff, who was rendered a quadriplegic as the result of the negligence of the defendant, was entitled to recover by way of damages a sum representing the value of nursing and other services gratuitously provided for him in the past and to be provided in the future by his fiancee and members of his family. In reaching its conclusion, the Court followed the decision of the Court of Appeal in Donnelly v. Joyce [60] , and viewed the damages in question as damages for one component of the plaintiff's loss occasioned by his physical disability. The disability gave rise to the need for nursing and other care. The need was met by the services gratuitously provided. The value or cost of those services was, in the circumstances, an appropriate means of quantifying that aspect of the plaintiff's loss which was represented by the need. As the need represented the loss, the value of the services required to fulfil that need served as a means of assessing the loss. The fact that there were persons, prompted by motives of concern for the plaintiff, who were prepared to provide the services gratuitously was, it was held, not something which should diminish the damages to the advantage of the defendant. It was only right in the circumstances that the plaintiff should benefit rather than the wrongdoer whose negligence was the cause of the plaintiff's loss. 1. [1974] Q.B. 454. This approach was a divergence from the view previously taken that expenses in an action for damages for personal injuries could only be recovered where there was, or would be, a legal obligation to pay them. Gibbs J. elaborated the new approach [61] : However in my opinion this Court should not abandon the principle that a plaintiff whose injuries have created a need for hospital or nursing services cannot recover damages in respect of that need (except of course for loss of amenities or pain and suffering) unless the satisfaction of the need is or may be productive of financial loss. However it should no longer be held that the fact that the services have been and will be provided gratuitously is conclusive of this question. The matter should, as it were, be viewed in two stages. First, is it reasonably necessary to provide the services, and would it be reasonably necessary to do so at a cost? If so, the fulfilment of the need is likely to be productive of financial loss. Next, is the character of the benefit which the plaintiff receives by the gratuitous provision of the services such that it ought to be brought into account in relief of the wrongdoer? If not, the damages are recoverable. 1. (1977) 139 C.L.R., at pp. 168-169. The claim in Griffiths v. Kerkemeyer was, as we have said, a claim for damages for personal injuries. It was of a different nature from a claim under Lord Campbell's Act, which is a claim for the loss of a material benefit. The plaintiff's loss in Griffiths v. Kerkemeyer was caused by his physical disability. It was in accordance with accepted principle to assess part of that loss by reference to the cost of the services which were required to satisfy the need to which the disability gave rise. What was novel about the decision was the application of that principle even though the plaintiff had not borne and would not bear the cost of the services. The novelty was not in valuing the necessary services, both retrospectively and prospectively; there was nothing new in that. The novelty lay in giving the plaintiff the cost of those services even though he had not paid, and would not pay, for them, in order that he, and not the defendant, should reap the benefit. By way of contrast, a claim for damages under Lord Campbell's Act is a claim for recompense for some tangible advantage which has been lost by reason of the death of the deceased. As Gibbs J. observed in Ruby v. Marsh [62] , in relation to a claim for damages sustained through the death of a husband and father, the loss occurred "at the moment of death" and: The expectation of future benefit was destroyed by the death and no subsequent event can increase or diminish the extent of the pecuniary loss then suffered, although it is true that subsequent events may be relevant to the assessment of damages in so far as they render it unnecessary for the court to speculate about possibilities that may have existed at the date of death when the facts themselves have become known. In this type of claim the loss can be identified directly and it is unnecessary to point to some need by which it is represented. Commonly the claim is based upon the loss of the financial contribution made by the deceased to the household and is referred to as a claim for the loss of a breadwinner. But the deceased may have made a contribution in services rather than money in which case damages are recoverable for their loss, whether or not they are, or are to be, replaced, provided that a pecuniary value can be placed upon them. And as Gibbs J. pointed out in Seymour [63] , if the services are housekeeping services there is no reason why a pecuniary value should not be placed upon them. Why the majority in Seymour should have reached the contrary conclusion merely because the housekeeping services were not to be replaced is far from clear. To deny that the services were a material benefit merely because they were not to be replaced was plainly an error and it is the contrary view taken by Gibbs J. rather than that of the majority which has prevailed elsewhere in Australia: Tong v. Purdy [No. 2] [64] ; Rowe v. Scanlan [65] ; Cornish v. Watson [66] ; Naum v. Nominal Defendant [67] ; Doody v. Federation Insurance Ltd. [68] ; Budget Rent-A-Car Pty. Ltd. v. Van Der Kemp [69] ; Swan v. Williams (Demolition) Pty. Ltd. [70] . 1. (1975) 132 C.L.R. 642, at p. 658. 2. [1967] Qd R. 227. 3. [1941] V.L.R. 147. 4. [1969] 1 N.S.W.R. 43. 5. [1968] W.A.R. 198. 6. [1974] 2 N.S.W.L.R. 14. 7. (1977) 16 S.A.S.R. 173, at p. 175. 8. [1984] 3 N.S.W.L.R. 303. 9. (1987) 9 N.S.W.L.R. 172. In the present case the plaintiffs claimed for "loss of the deceased's domestic capacity being the value of services such as child care, cooking, washing, ironing and cleaning". There may be other services previously performed by a deceased wife and mother such as tuition in schooling. She may also have performed services by the exercise of skills such as dressmaking. These too may represent a tangible advantage lost by death, which loss may be compensated in damages. There is no reason why "services" in this context should be given an unduly narrow construction, as if a wife were no more than a housekeeper: see Doody v. Federation Insurance [71] ; Fisher v. Smithson [72] ; Regan v. Williamson [73] ; Mehmet v. Perry [74] . The evidence may justify only a small amount by way of damages or it may justify a large amount. The result will depend upon the facts established before the court. To borrow the illustration offered by Ritchie J. in Vana v. Tosta [75] , if a wife or mother was so physically or mentally incapacitated as to have been unable to play any useful part in the lives of the family, there may be no resulting pecuniary loss. Whatever the circumstances, compensation "should represent the balance of the loss, reduced to terms of money, which the deceased's relatives incur in consequence of [her] death after deducting the pecuniary gains which on the other hand accrue to them from that event": Horton v. Byrne [76] . 1. (1977) 16 S.A.S.R. 173. 2. (1977) 17 S.A.S.R. 223. 3. [1976] 1 W.L.R. 305; [1976] 2 All E.R. 241. 4. [1977] 2 All E.R. 529. 5. (1967) 66 D.L.R. (2d) 97, at pp. 110-111. 6. (1956) 30 A.L.J. 583, at p. 585. Griffiths v. Kerkemeyer [77] has nothing to say about a claim under Lord Campbell's Act for damages for the loss of domestic services. As we have said, such a claim is not related to need. A husband claiming for the loss of housekeeping services by reason of the death of his wife may have no need of those services in that he may be able to perform them himself. But if he has suffered the loss he is entitled to recover for it and, as Gibbs J. pointed out in Seymour [78] , it does not matter whether he intends to use the damages to replace the services or not. As Jeffrey J. observed in Naum v. Nominal Defendant [79] , the view that a widower should not recover damages where he replaces his wife's services himself: fails to identify the loss in a case such as this for which damages are to be a compensation. A widower who loses the wife who looked after him suffers loss when he thereafter does without and fends for himself as much as such a widower who incurs expense by replacing the lost services with those of a housekeeper. The loss of the former may be less easy to compute, but a loss it is nevertheless. It is not the payment to a housekeeper which constitutes the loss: that is merely some evidence relevant to finding the financial measure of the deprivation which each of the supposed widowers has equally suffered. To regard the expenditure of money on such a replacement as a condition of the existence of a loss suffered by the widower which is capable of being regarded as a pecuniary loss is, in the apt words of Sugerman J. in Wilson v. Rutter [80] , "to mistake the measuring rod for the thing to be measured." Nor does the fact that the domestic services were provided gratuitously by the wife raise any question about the husband's entitlement to damages. Indeed, the loss is incurred, or is the more, because the services were provided gratuitously. 1. (1977) 139 C.L.R. 161. 2. [1967] Qd R., at p. 230. 3. [1974] 2 N.S.W.L.R. 14, at p. 16. 4. (1955) 73 W.N.(N.S.W.) 294, at p. 298. In evaluating the loss in these circumstances, "[c]ompensation for the loss of a wife's gratuitously rendered domestic services should not be confused with the actual cost to the bereaved husband [of] providing substitute services. This no doubt affords a guide to the amount but the actual expenses of the plaintiff for a limited period are not necessarily its measure": per Sugerman J.A. in Rowe v. Scanlan [81] . In practice evidence is often led of the cost of engaging domestic help between the date of death and the hearing of the action: see, for instance, Budget Rent-A-Car Pty. Ltd. v. Van Der Kemp [82] . But the damages to be assessed are those suffered by the plaintiff and cannot always be equated with the cost of such help. The services formerly rendered by a deceased wife may not be capable of being reproduced faithfully by services which are commercially available and the scope and cost of the only services commercially available may be disproportionate in comparison with the scope and value of the services which were actually provided by the deceased wife. In circumstances such as that it will not be reasonable to regard the cost of substitute services as any more than a starting point in assessing a plaintiff's loss. Indeed, in cases where the disproportion is severe, the cost of commercially available services may offer no real guide at all. It must always be borne in mind that the damages to be assessed are those suffered by the plaintiff by reason of the death alone. 1. [1969] 1 N.S.W.R. 43, at p. 45. 2. [1984] 3 N.S.W.L.R. 303, at p. 306. Where the services are likely to be replaced as a result of remarriage, the reasonable prospect of that remarriage will serve to reduce the compensation to which a plaintiff will be entitled, not because the plaintiff's need for the services will then be satisfied, but because the plaintiff's loss is thereby directly reduced. The prospect of remarriage has always been regarded in claims under Lord Campbell's Act as providing a gain to the husband in the form of a revival of the capacity to marry. It is something which he would not have had, if his wife had not died: Carroll v. Purcell [83] . In some families, the children might reasonably have been expected in the course of time to have taken up, to a greater or lesser extent, the household duties previously performed by a parent. In that event, the loss incurred by reason of the death of that parent is the less. Of course, if the children take up the household duties, not in the ordinary course of events, but only because of the death of the parent, that will not reduce the total loss and it is irrelevant that the services do not need to be replaced by someone outside the household. 1. (1961) 107 C.L.R. 73, at p. 79. Although the question must always be "what loss the claimant has in fact sustained by the death" (Baker v. Dalgleish Steam Shipping Co. [84] ), courts have been reluctant to conclude that where someone outside the immediate family voluntarily takes over the care of the household, especially the care of infant children, a deduction should be made from the assessment of damages due to a plaintiff, and reluctant to recognise that the loss suffered by a plaintiff is thereby reduced. The reasoning behind this reluctance has taken a variety of forms. In Hay v. Hughes [85] , the grandmother of two children assumed their care upon the death of their mother, and the Court of Appeal held [86] that the grandmother's services should be ignored in calculating the loss suffered by the children on the basis that: At the time of their mother's death it was anyone's guess what would happen to them and the defendant has not discharged the onus of establishing that at that time there was a reasonable expectation that the grandmother would act as she subsequently did. Similarly, in Peacock v. Amusement Equipment Co. Ltd. [1] , a gift of money to the plaintiff by his stepchildren after the death of his wife was not taken into account in assessing the damages to which the plaintiff was entitled, on the basis that he could have had no reasonable expectation of such a gift at the time of the wife's death [2] . In other cases, the reluctance has stemmed from the belief that the care provided by the relatives was not a consequence of the death of the deceased but flowed rather from an independent source, namely, the generosity and altruism of the relatives:Voller v. Dairy Produce Packers Ltd. [3] ; Wilson v. Rutter [4] . In the words of Chapman J. in Rawlinson v. Babcock & Wilcox Ltd. [5] : The loss resulting from the death is one thing; the steps which may be taken as a result of spontaneous individual volition by one, two or three uncles or relatives or friends to alleviate the loss so resulting are quite different. It would to my mind be quite odious if a court had to assess what benefits had accrued, or were likely to accrue, to a victim of a tragedy from such motives. He took the view [6] that, were such assistance to be deducted from the damages, relatives would be bound to say: "In your own interests you must stay away. You must not expect us to befriend you or look after you or help you in any way, because if we do it will undermine your legal rights." I found myself wondering what would have been the legal position if having heard the argument [the beneficiary's uncle] had come back to the witness box and said: "From now on my door is closed to [the beneficiary]. I see now I have done her damage by befriending her and taking her into my family and home and treating her as my own child. But if I resile before it is too late I can restore her to the position she had before of having a claim in law against those responsible at law for the death of her father. That I now do by casting her out from my home and family: fiat justitia." The same attitude is reflected in a recent decision of the Court of Appeal in Spittle v. Bunney [7] , where Croom-Johnson L.J. [8] attempted to identify its logical basis: In cases where an orphan has been taken in by a close relative there has been a general, though not universal, reluctance to say either that the orphan has suffered no loss or has acquired a benefit. The logical reason for not saying "no loss" is that no services can really replace the services of a mother (I repeat that the loss is one of actual services, not of love). See also Gillett v. Nominal Defendant [9] ; Cornish v. Watson [10] . 1. [1922] 1 K.B. 361, at p. 372. 2. [1975] Q.B. 790. 3. [1975] Q.B., at p. 809. 4. [1954] 2 Q.B. 347. 5. [1954] 2 Q.B., at pp. 353, 355. 6. [1962] 1 W.L.R. 960; [1962] 3 All E.R. 938. 7. (1955) 73 W.N.(N.S.W.) 294, at p. 298. 8. [1967] 1 W.L.R. 481, at p. 487. 9. [1967] 1 W.L.R., at p. 485. 10. [1988] 1 W.L.R. 847; [1988] 3 All E.R. 1031. 11. [1988] 1 W.L.R., at p. 853; [1988] 3 All E.R., at p. 1036. 12. [1976] 2 N.S.W.L.R. 65n. 13. [1968] W.A.R. 198. Whatever be the true basis of the reluctance — and it may be partly the belief that voluntary unsolicited assistance cannot be permanently relied upon — it has been accepted that this form of assistance should not be brought into account in relief of the wrongdoer. But these are all questions of the extent of the loss suffered and are different questions from those raised inGriffiths v. Kerkemeyer [11] where the problem was not so much the extent of the loss as its quantification by reference to the need for services to which the loss gave rise in circumstances where the services are provided without cost to the plaintiff. 1. (1977) 139 C.L.R. 161. The Full Court in the present case were unanimously of the view that Seymour [12] was wrongly decided. They were correct in that view. Nevertheless, the majority applied Seymour and Williams v. Fleming, following what was said to be the prevailing practice in Queensland whereby the Full Court regards itself as bound by its own previous decisions. Authority in Queensland upon the point is sparse and not altogether consistent. Perhaps the most authoritative statement is to be found in Reg. v. Gassman [13] where the Court of Criminal Appeal held that it was not free to depart from a previous decision. Mack J. said [1] : There does not seem to me to be any reason why the rule of stare decisis should not be the same for the Court of Criminal Appeal as for the Full Court. The cases in Queensland appeal courts show that the occasions on which previous decisions will not be followed are limited to decisions pronounced per incuriam and those in conflict with higher authority. See also Wilks v. Bugler and Galloway, James Campbell & Sons Ltd. [2] ; Reg. v. Johnson [3] ; Reg. v. Scott-Hogarth [4] ; Reg. v. Kaporonowski [5] . 1. [1967] Qd R. 227. 2. [1961] Qd R. 381. 3. [1961] Qd R., at pp. 384-385. 4. [1930] St. R. Qd 113, at p. 120. 5. [1964] Qd R. 1. 6. [1965] Q.W.N. 17. 7. [1972] Qd R. 465. The extent to which the Full Court of the Supreme Court of a State regards itself as free to depart from its own previous decisions must be a matter of practice for the court to determine for itself. An example of such a determination is the Practice Statement of the House of Lords in 1966: Practice Statement (Judicial Precedent) [6] . The arguments in favour of certainty and against rigidity have been rehearsed on numerous occasions and no purpose is to be served by repeating them here: see, e.g., Australian Agricultural Co. v. Federated Engine-Drivers and Firemen's Association of Australasia [7] , per Isaacs J.; Attorney-General (N.S.W.) v. Perpetual Trustee Co. (Ltd.) [8] , per Dixon J. It should be observed, however, that neither the Court of Appeal in New South Wales nor the Full Courts in Victoria and South Australia regard themselves as strictly bound by their previous decisions: see Bridges v. Bridges and Hooper [9] ; Richardson v. Mayer [10] ; Bennett & Wood Ltd. v. Orange City Council [11] ; Flanagan v. H.C. Buckman & Son [12] ; Forster v. Forster [13] ; Jenerce v. Pope [14] ; Raynal v. Samuels [15] ; Reg. v. Barnes [16] . There is no reason to think that the practice in Tasmania is any different, but in Transport Trading and Agency Co. of W.A. Ltd. v. Smith [17] there was the suggestion of a contrary practice in Western Australia. In Victoria a procedure is adopted whereby a Full Bench of five or more judges is convened if a decision of a Full Court of three judges is to be reviewed: see Kidd, Stare Decisis in Intermediate Appellate Courts Australian Law Journal, vol 52 (1978) 274. The Full Court of the Federal Court will depart from a previous decision if convinced that it is wrong: Chamberlain v. The Queen [18] . 1. [1966] 1 W.L.R. 1234. 2. (1913) 17 C.L.R. 261, at pp. 274-279. 3. (1952) 85 C.L.R. 237, at pp. 243-244. 4. (1944) 45 S.R. (N.S.W.) 164. 5. [1964-5] N.S.W.R. 105. 6. [1967] 1 N.S.W.R. 502. 7. [1972] 2 N.S.W.L.R. 761. 8. [1907] V.L.R. 159. 9. (1971) 1 S.A.S.R. 204. 10. (1974) 9 S.A.S.R. 264. 11. (1978) 20 S.A.S.R. 1. 12. (1906) 8 W.A.R. 33. 13. (1983) 72 F.L.R. 1, at pp. 8-9; 46 A.L.R. 493, at p. 498. Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predicability of the law: see Queensland v. The Commonwealth [19] , per Aickin J. 1. (1977) 139 C.L.R. 585, at pp. 620 et seq. This Court has never regarded itself as bound by its own decisions, which is all the more appropriate now that it is a court of last resort for all purposes. There is a point of view that different considerations should govern the situation of an intermediate court of appeal: see Young v. Bristol Aeroplane Co. Ltd. [20] ; Davis v. Johnson [21] ; Miliangos v. Frank (Textiles) Ltd. [22] . But even if that view were correct, now that appeals to the High Court are by special leave only, the appeal courts of the Supreme Courts of the States and of the Federal Court are in many instances courts of last resort for all practical purposes. There is no equivalent of s. 12 of the Administration of Justice Act 1969 U.K. to authorize "leapfrog" appeals which would by-pass those courts as the Court of Appeal may be by-passed in the United Kingdom. See, however, Sanofi v. Parke Davis Pty. Ltd. [No. 1] [23] . In these circumstances, it would seem inappropriate that the appeal courts of the Supreme Courts and of the Federal Court should regard themselves as strictly bound by their own previous decisions. In cases where an appeal is not available or is not taken to this Court, rigid adherence to precedent is likely on occasions to perpetuate error without, as experience has shown, significantly increasing the corresponding advantage of certainty. 1. [1944] K.B. 718. 2. [1979] A.C. 264. 3. [1976] A.C. 443. 4. (1982) 149 C.L.R. 147. For the reasons which we have given, both Seymour [24] and Williams v. Fleming should be overruled. Since it does not appear that the members of the Full Court accepted the assessment of damages made by the Master, apart from the fact that it was made in disregard of those decisions, it is appropriate that this matter should be remitted to the Full Court for reconsideration in accordance with these reasons, upon the basis that Seymour and Williams v. Fleming no longer represent the law in Queensland. The appeal should be allowed and the matter remitted to the Full Court of the Supreme Court for this purpose. 1. [1967] Qd R. 227.