Redding v Lee

151 CLR 117
47 ALR 241

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(Judgment by: GIBBS CJ)

Between: REDDING
And: LEE
Between: EVANS
And: MULLER

Court:

Judges:
Gibbs C.J.Mason J.
Murphy J.
Wilson J.
Brennan J.
Deane J.
Dawson J.

Subject References:
Damages

Judgment date: 19 May 1983 NBERRA

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Judgment by:
GIBBS CJ

These two appeals, which were heard in succession, raise for consideration the same question of principle, namely, whether the courts, in assessing the damages payable for personal injuries which have caused the plaintiff to suffer a loss of earning capacity, should take into account benefits which the plaintiff has received under the Social Security Act 1947 (Cth), as amended, but which he would not have received had it not been for his injuries.

In the first matter, Redding v. Lee, the question arose on a case stated for the opinion of the Full Court of the Supreme Court of South Australia. It was stated in the case that the plaintiff claimed damages for negligence causing him bodily injury, that one element in the assessment of the plaintiff's damages was a claim for loss of wages and that the plaintiff had, before the trial, been in receipt of an invalid pension. It appears to have been admitted, although it was not expressly stated in the case, that the incapacity which gave rise to the entitlement to the pension resulted from the injury caused by the negligence. The Full Court was asked the following question:

"Should the payments of invalid pension above referred to be deducted from the plaintiff's loss of wages arising out of the accident?"

The Court answered that question, no (1981) 28 SASR 372.

The second matter, Evans v. Muller, is an appeal from the Full Court of the Supreme Court of Queensland. At first instance, Connolly J., in assessing the economic loss of the plaintiff before the date of the trial, deducted from the amount which he estimated represented the plaintiff's net loss of wages after tax from the date of the accident up to the trial the amount ($7,250) which during that period the plaintiff had received by way of unemployment benefits (1982) Qd R 139. On appeal the Full Court, by a majority, held that the amount of $7,250 should not have been deducted (1982) Qd R 209.

It is trite to say that a court, in assessing compensation for economic loss suffered by an injured plaintiff, endeavours to compensate the plaintiff for what he has actually lost, i.e., to restore him to the financial position in which he would have been if he had not been injured. It might therefore be thought that where the plaintiff has, as a consequence of his injuries, received a financial benefit which he would not have otherwise received, such benefit would reduce the amount of his financial loss and must be taken into account in the assessment of his damages. In many cases the benefit will of course be taken into account. Sometimes the receipt of the benefit will mean that the plaintiff has suffered no loss, and therefore can recover no damages. If a plaintiff is unable to work, but nevertheless receives wages or sick pay, he cannot claim that he has suffered a loss of wages; if he needs medical attention, but it is provided free, he cannot claim that he should be credited with an amount for expenditure on medical attention which it has not been necessary to make: see Paff v. Speed (1961) 105 CLR 549 , at p 567; Graham v. Baker (1961) 106 CLR 340 , at pp 343, 346. I have already said something about this matter in Griffiths v. Kerkemeyer (1977) 139 CLR 161 , at pp 168-169. However, the present are not cases in which the provision of the benefit has meant that the plaintiff has not suffered financial loss. In the present cases, the question is whether the plaintiff, having suffered a loss, "ought to be debited with the amount or value of a subvention of which he has had the benefit", to use the words of Fullagar J. in Blundell v. Musgrave (1956) 96 CLR 73 , at p 93. Although logic might suggest that a plaintiff should be debited with the amount of any benefit which he has received in consequence of his injuries and which in fact reduces his loss, the authorities show that that is certainly not true in every case.

The common law has clearly recognized two types of receipts that are not to be brought into account in the assessment of damages for financial loss, notwithstanding that the sums have been received in consequence of the injuries for which the plaintiff sues, namely, moneys payable to the plaintiff under a contract of insurance which he has taken out, and gifts made by a benevolent third party seeking to ameliorate the situation in which the plaintiff has been placed by his injuries. It has been said that "The common law has treated this matter as one depending on justice, reasonableness and public policy": Parry v. Cleaver (1970) AC 1 , at p 13. However, since "intuitive feelings for justice seem a poor substitute for a rule antecedently known. .. " (National Insurance Co. of New Zealand Ltd. v. Espagne (1961) 105 CLR 569 , at p 572 ), it seems necessary to seek to discover the principle according to which the cases have been decided or if, as Dixon C.J. said in National Insurance Co. of New Zealand Ltd. v. Espagne (1961) 105 CLR 569 , at p 572 , "no legal rule exists that can be applied to every case where an advantage accrues to the injured man which but for the injuries he would not have obtained", at least the principle which governs the question whether pensions under the Social Security Act should be brought into account. The latter question was the subject of consideration by this Court in National Insurance Co. of New Zealand Ltd. v. Espagne, where it was held that an award of an invalid pension under the Social Services Act 1947 (as the Social Security Act was then called), for permanent blindness, was rightly disregarded in the assessment of damages. The judgments in that case that have come to be regarded as authoritative were those of Dixon C.J. and Windeyer J., with both of whom Fullagar J. concurred. By the time that case was decided, it had been held that in assessing damages the law would disregard, not only insurance moneys and gifts, but also the proceeds of a disability pension: see Payne v. Railway Executive [1952] 1 KB 26 , where one view expressed was that the pension was one of the fruits of the plaintiff's service, and in that respect analogous to the proceeds of an insurance policy. (That case was not followed in Browning v. The War Office [1963] 1 QB 750 , which wasitself not followed in Parry v. Cleaver, but these developments had not occurred when National Insurance Co. of New Zealand Ltd. v. Espagne was decided.) Various reasons had been suggested for disregarding receipts of these kinds; it was said that they were merely "collateral", or that they were res inter alios acta , or that the injury was only a causa sine qua non rather than a causa causans of the advantage which the plaintiff received. In National Insurance Co. of New Zealand Ltd. v. Espagne, Dixon C.J. and Windeyer J. (1961) 105 CLR, at pp 589-598 convincingly showed these explanations to be inadequate, and suggested a different principle. Dixon C.J. said (1961) 105 CLR, at p 573 :

"There are certain special services, aids, benefits, subventions and the like which in most communities are available to injured people. Simple examples are hospital and pharmaceutical benefits which lighten the monetary burden of illness. If the injured plaintiff has availed himself of these, he cannot establish or calculate his damages on the footing that the did not do so. On the other hand there may be advantages which accrue to the injured plaintiff, whether as a result of legislation or of contract or of benevolence, which have an additional characteristic. It may be true that they are conferred because he is intended to enjoy them in the events which have happened. Yet they have this distinguishing characteristic, namely they are conferred on him not only independently of the existence in him of a right of redress against others but so that they may be enjoyed by him although he may enforce that right: they are the product of a disposition in his favour intended for his enjoyment and not provided in relief of any liability in others fully to compensate him."

Windeyer J. said (1961) 105 CLR, at pp 599-600:

"In assessing damages for personal injuries, benefits that a plaintiff has received or is to receive from any source other than the defendant are not to be regarded as mitigating his loss, if:

(a)

they were received or are to be received by him as a result of a contract he had made before the loss occurred and by the express or implied terms of that contract they were to be provided notwithstanding any rights of action he might have; or

(b)

they were given or promised to him by way of bounty, to the intent that he should enjoy them in addition to and not in diminution of any claim for damages. The first description covers accident insurances and also many forms of pensions and similar benefits provided by employers: in those cases it is immaterial that, by subrogation or otherwise, the contract may require a refund of moneys paid, or an adjustment of future benefits, to be made after the recovery of damages.

The second description covers a variety of public charitable aid and some forms of relief given by the State as well as the produce of private benevolence. In both cases the decisive consideration is, not whether the benefit was received in consequence of, or as a result of the injury, but what was its character: and that is determined, in the one case by what under his contract the plaintiff had paid for, and in the other by the intent of the person conferring the benefit. The test is by purpose rather than by cause."

Although the remarks made by Dixon C.J. before the statement of principle which I have cited suggest that the statement was intended to be limited to the question whether the pension under the Social Services Act should be taken into account, the principle which he enunciated was broad enough to cover other cases (such as the receipt of the proceeds of an insurance policy or of a private benefaction) in which advantages received by the plaintiff are disregarded. The statement of Windeyer J. expressly covers such cases. The test suggested is a general one, and it requires the court to consider the nature of the benefit which the defendant seeks to set off against the damages, and to inquire whether the person or body supplying the benefit intended that the plaintiff should enjoy it in addition to whatever damage he might recover from the defendant. In the case of a benefit provided under statutory authority, the intention of the legislature, in providing the benefit, must be gleaned from the statute itself as a matter of interpretation. If the statute expressly provides (as some statutes relating to workers' compensation have done) that a plaintiff who has recovered damages shall repay the amount of the benefit it will be clear that the receipt of the benefit must be disregarded in the assessment. In many cases, however, the statute under which the benefit is provided will give no assistance of this kind. Then it will be necessary to consider closely the nature of the benefit itself. The conclusion that the benefit is intended for the plaintiff personally and not in reduction of the damages may more readily be drawn when it is seen that the receipt of the benefit is not dependent on the loss of wages or earning capacity (I shall refer again to the distinction) for which the plaintiff claims damages (cf. Parry v. Cleaver (1970) AC, at p 42 , per Lord Wilberforce) and is not intended to replace the lost wages or remedy the loss of earning capacity.

It may rightly be said that the test suggested in National Insurance Co. of New Zealand Ltd. v. Espagne (1961) 105 CLR 569 is far from precise, and that its application can lead to differences of opinion in particular cases, as the authorities amply demonstrate. However, it is difficult to suggest a more exact criterion once it is accepted, as it must be, that justice requires that certain benefits must be disregarded in the assessment of damages notwithstanding that they would not have been received but for the injuries for which the plaintiff sues and notwithstanding that in fact they have mitigated the plaintiff's loss. In any case, it is probably right to say, as Menzies J. said in Paff v. Speed (1961) 105 CLR, at p 563 , that the effect of the cases is that "as a general rule pensions do not go in mitigation of common law damages". Parliament has been no more successful than the courts in laying down a satisfactory principle; the Commonwealth Parliament has not essayed the task, and the solution arrived at in England by s. 2 of the Law Reform (Personal Injuries) Act 1948, which requires the courts to deduct the sum equal to one half of the amount of certain benefits paid or payable over five years if the payments are made as a result of the accident, was no more than a compromise. National Insurance Co. of New Zealand Ltd. v. Espagne was followed by this Court in Graham v. Baker (1961) 106 CLR 340 , Ramsay v. Watson (1961) 108 CLR 642 , at pp 649-650 , and Jones v. Gleeson (1965) 39 ALJR 258 , in which cases it was held that payments from a superannuation fund to which the plaintiff had contributed should not be taken into account in the assessment of damages. It has of course been applied in the Supreme Courts of the States. The principle of the decision has been accepted by the English courts: see Parry v. Cleaver (1974) AC 1, esp at pp 40-42 but also at pp 19, 28-30, 37 ; Daish v. Wauton [1972] 2 QB 262 , at pp 271-2, ; and Lincoln v. Hayman (1982) 1 WLR 488 , at pp 491-492; [1982] 2 All ER 819 , at pp 820-821. There is no doubt in my opinion that this Court should continue to follow the decision itself and to accept as correct the principles enunciated by Dixon C.J. and Windeyer J.

It remains to apply this principle to the present cases. An invalid pension, with which Redding v. Lee is concerned, was held in National Insurance Co. of New Zealand Ltd. v. Espagne to be a benefit of a kind which should not be taken into account in the assessment of damages. The pension in that case had been granted because of the permanent blindness of the plaintiff and the Social Services Act drew a number of distinctions between an invalid pension granted for permanent blindness and one granted for permanent incapacity. It is however clear that the Court considered that the conclusion that an invalid pension should not be taken into account was even more clearly warranted where the pension was granted for permanent incapacity than in the case of a pension granted for permanent blindness (cf. at pp. 574, 586- 587). In any event, it could not be suggested that the reasoning in National Insurance Co. of New Zealand Ltd. v. Espagne did not apply to the case of an invalid pension granted for permanent incapacity, and there can be no doubt that if the decision in that case is to be followed (as in my opinion it should) the appeal in Redding v. Lee must be dismissed unless, as the appellant contended, amendments to the statute have so changed the nature of the pension that the decision in National Insurance Co. of New Zealand Ltd. v. Espagne is inapplicable to the Act in its present form.

The argument for the appellant was mainly based on the following changes to the statute. By s. 15A of the Social Security Act, an appeal from a decision of the Director-General, including a decision to refuse or reduce the amount of a pension, now lies to the Administrative Appeals Tribunal; no such appeal previously lay. The provisions of s. 25(1)(a), that an invalid pension shall not be granted to a person "if he is not deserving of a pension", have been repealed. It was said that the Director-General now has no real discretion to grant or refuse a pension, and that the fact that an invalid pension is now available virtually as of right is an important point of distinction from National Insurance Co. of New Zealand Ltd. v. Espagne. It is true that in that case reference was made in the judgments (1961) 105 CLR, at pp 574, 578 to the fact that an invalid pension was granted in the exercise of an administrative discretion, and not as a matter of strict right. However, none of the Justices who decided that case based his decision simply on the fact that the pension was discretionary. I respectfully agree with the view expressed by Lord Reid in Parry v. Cleaver (1970) AC, at p 17 , that "if it is right to deduct a pension which the plaintiff receives as of right, it cannot be right to disregard the whole of a discretionary pension" - this is particularly clear when the pension has in fact been received before trial. National Insurance Co. of New Zealand Ltd. v. Espagne is not authority for the proposition that a pension which is discretionary should be disregarded for that reason alone, or that a pension which is available as a matter of strict right must be taken into account in the assessment of damages. It is therefore unnecessary to consider to what extent a discretion remains available in the grant of an invalid pension.

Further reliance was placed on the amendments to ss. 28(2), 44 and 46, which, at the time when National Insurance Co. of New Zealand Ltd. v. Espagne was decided, made the means of the claimant or pensioner - his property as well as his income - relevant to the assessment of the rate of pension and to the question whether the pension once granted should be cancelled or suspended. As a result of amendments since made to those sections, now only the income, and not the property, of the claimant or pensioner is relevant for those purposes. However, in the Act in the form upon which National Insurance Co. of New Zealand Ltd. v. Espagne (1961) 105 CLR 569 was decided those sections did not apply to a blind pensioner: see ss. 28(2)(AA), 46(2) and s. 44 itself. In this respect the amendments since made merely equate the position of a person to whom a pension is granted on the ground of permanent incapacity to that which was occupied by a blind pensioner at the time when National Insurance Co. of New Zealand Ltd. v. Espagne was decided. The amendments to which reference was made in argument provide no ground to distinguish the Social Services Act in its present form from the statute considered in National Insurance Co. of New Zealand Ltd. v. Espagne.

For the reasons I have given it should in my opinion be held that payments, actual or prospective, of an invalid pension granted for permanent incapacity should be disregarded in the assessment of the damages of a plaintiff whose incapacity has been brought about by the negligence of the defendant. I would accordingly dismiss the appeal in Redding v. Lee.

I turn now to consider the question which arises in Evans v. Muller, whether unemployment benefits should be taken into account. Unders. 107(1) of the Social Security Act, a person who is not in receipt of, inter alia, an invalid pension, is qualified to receive an unemployment benefit in respect of a period (called "the relevant period") if, inter alia

"(c)

the person satisfies the Director-General that-

(i)

throughout the relevant period he was unemployed and was capable of undertaking, and was willing to undertake, paid work that, in the opinion of the Director-General, was suitable to be undertaken by the person; and

(ii)

he has taken, during the relevant period, reasonable steps to obtain such work."

By s. 107(7):

"'unemployment', in relation to a person, includes-

(a)

unemployment of the person arising by reason of a person or persons being, or having been, engaged in industrial action;

(b)

unemployment of the person resulting from the termination of his employment; and

(c)

the person being, or having been, stood down or suspended from his employment or work."

The question whether unemployment benefits may be deducted in the assessment of damages has been the subject of conflicting decisions in the courts of the States and Territories. The leading authority in favour of the view that payments of unemployment benefits received by a plaintiff are to be brought into account is Tuncel v. Renown Plate Co. Pty. Ltd. (1976) VR 501 , where the matter was fully and carefully discussed by the Full Court of the Supreme Court of Victoria. The Court referred (1976) VR, at p 505 , to the statement in National Insurance Co. of New Zealand Ltd. v. Espagne (1961) 105 CLR, at p 573 , that if the injured plaintiff has availed himself of certain benefits, such as hospital and pharmaceutical benefits, he cannot establish or calculate his damages on the footing that he did not do so. Their Honours then said that they were unable to see, why, as a matter of logic, any distinction could be drawn in relation to unemployment benefits. Their Honours went on to say (1976) VR, at p 509 :

"The unemployment benefits payable by the Commonwealth and the compensation payable by the tortfeasor are concerned with the same subject matter, namely payment for periods when the plaintiff was in fact not working. The actual amounts payable were arrived at by the same mode of calculation for both payments. Both are based directly on the precise periods the plaintiff was not working. They would be similarly calculated on a weekly rate."

This decision was followed in South Australia in McIntosh v. Mair (1979) 21 SASR 150 and in Queensland in Cobb v. O'Donoghue (1980) Qd R 402. The same result had earlier been reached in Western Australia in Samios v. Repatriation Commission (1960) WAR 219, at pp 232-233. On the other hand, in other cases in Queensland including Henman v. Stephenson (1980) Qd R 410 , it was held that the benefits should not be taken into account, and this view was also expressed in the Supreme Court of the Australian Capital Territory by Blackburn C.J. in Canny v. John Pfeiffer Pty. Ltd. (1979) 37 FLR 105 ; 28 ACTR 11 and Morley v. Murray (1980) 42 FLR 271 ; 31 ACTR 25.

Two cases in this Court need to be mentioned. In Neall v. Watson (1960) 34 ALJR 364 , it was held that a pension under the Social Services Act was not to be taken into account, but it is not clear from the report (or from the appeal book, to which I have referred) what was the nature of the payment in question; the amount of the pension shows that it must have been either an unemployment benefit or a sickness benefit: see s. 112 of the Act as amended by the Social Services Act, 1957. The Court said of the plaintiff (1960) 34 ALJR, at p 366 :

"While out of work he received 6 pounds 2s. 6d. per week from the Social Service Department. And for the maintenance of his children - he now has six children - he got 9 pounds 5s. per fortnight from the Children's Welfare Department less any amount that he earned from time to time. He has, it seems, undertaken to repay the amounts he has thus received 'if I succeed in this litigation'. That, however, presumably meant succeed in establishing that the respondent was liable for his present condition. But, however, this may be, these allowances ought not to affect the damages he is entitled to in this action."

The Court in Tuncel v. Renown Plate Co. Pty. Ltd. may have been right in saying that "the nature of the payments seems to have been sickness benefits payments" (1976) VR, at p 509. However, the significance of the case lies in the fact that it does not seem to have mattered to the five Justices who joined in the decision what sort of pension it was. They appear to have proceeded on the general rule stated by Menzies J. in Paff v. Speed (1961) 105 CLR, at p 563 that pensions do not go in mitigation of damages. On the other hand, in the course of a dissenting judgment in Dessent v. The Commonwealth (1977) 51 ALJR 482, at p 485 , Barwick C.J. said:

"If the judge had attempted to assess a sum for loss of earning capacity which would manifest its presence on the appellant's retirement, he may have considered the effects of the availability of unemployment relief (see Tuncel v. Renown Plate Co. Pty. Ltd....)"

This remark however was obiter, since Barwick C.J. was of the opinion that there was no finding that the appellant suffered any loss of earning capacity which in itself called for any substantial award of damages.

In England it was held by the Court of Appeal in Parsons v. B.N.M. Laboratories Ltd. [1964] 1 QB 95 and in Nabi v. British Leyland (UK) Ltd. (1980) 1 WLR 529 ; [1980] 1 All ER 667 that unemployment benefit must be deducted from an award in respect of loss of earnings. The English cases are not precisely in point, since the statutory provisions are different, and in any case it was recognized in Nabi v. British Leyland (UK) Ltd. (1980) 1 WLR, at p 538; (1980) 1 All ER, at p 675 that the question should be reviewed in the light of Parry v. Cleaver (1970) AC 1. On the other hand in Canada (Bourgeois v. Tzrop (1957) 9 DLR (2d) 214 and Boarelli v. Flannigan (1973) 36 DLR (3d) 4 ) and Northern Ireland (Fitzpatrick v. Moore (1962) NI 152 ) unemployment benefits have been held not to be deductible.

In the present state of the authorities the matter must be decided by the application of the principles which I have endeavoured to state. It seems to me, with all respect, that the Court in Tuncel v. Renown Plate Co. Pty. Ltd. (1976) VR 501 fell into error in drawing an analogy between the case of unemployment benefits and one in which hospital or pharmaceutical benefits have been received. As I have already endeavoured to show, if an injured person receives hospital treatment, but pays nothing because the costs are met by a scheme of hospital benefits, he suffers no loss. He cannot claim as part of his damages a cost of hospital treatment which he did not incur. The plaintiff in Evans v. Muller did, however, suffer a loss: he lost his wages. The question in that case is whether, as against that loss, the defendant must be given credit for the benefit which the plaintiff received and which, when received, in fact had the effect of reducing the loss. However, and again with all respect, I cannot share the view of Blackburn C.J. in Canny v. John Pfeiffer Pty. Ltd. (1979) 37 FLR, at p 108; 28 ACTR, at p 31 that the judgment in Tuncel v. Renown Plate Co. Pty. Ltd. cannot be reconciled "with the proposition that loss of wages is a means of valuing the loss of the capital asset which is earning capacity". It is beyond question that the Court in Graham v. Baker was correct in saying that "an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss" (1961) 106 CLR, at p 347. In assessing damages it is therefore not inappropriate to look at the economic loss in fact suffered or likely to be suffered by the plaintiff and to deduct from the amount of that loss any benefit that is proper to be considered in accordance with the principles laid down in National Insurance Co. of New Zealand Ltd. v. Espagne (1961) 105 CLR 569 . However, I do agree with the view which Blackburn C.J. suggested in Morley v. Murray (1980) 42 FLR, at pp 272-273; 31 ACTR, at p 31 , that considerable practical difficulties would arise in taking into account the possibility that the plaintiff might in future receive unemployment benefit.

If in the present case we were to inquire what result would best accord with public policy, there would, on the one hand, be much to be said for the view that in reality the plaintiff's loss was reduced by the receipt of the unemployment benefits, and that since both the benefits and the insurance moneys which are used to meet the defendant's liability for damages are provided as a result of contributions made by the public in one form or another, the plaintiff should not be allowed to recover his loss of wages twice over. On the other hand, exactly the same might be said of a benefaction provided by a benevolent association financed by public contributions, and in such a case logic yields to charity. Further, it is also very much in the public interest that the assessment of damages for personal injuries should not become so complex that settlements are discouraged, trials are prolonged and appeals are multiplied. There is no doubt that to take unemployment benefits into account will add to the complications of an assessment. I have already referred to the difficulty of taking into account, in assessing future loss of earning capacity, the possibility that the plaintiff will or may receive unemployment benefits in the future. The benefit must be reduced if the income of the plaintiff exceeds quite a small weekly amount (s. 114 of the Social Security Act) and the effect of the award of damages itself on the plaintiff's income will be very difficult to predict. Yet there is no reason in principle to distinguish between present and future receipts of unemployment benefit in making an assessment. There are other complications in relation even to unemployment benefit received before trial. The plaintiff is not entitled to the benefit unless he has taken reasonable steps to obtain work (s. 107(1)(c)) and it therefore seems right to deduct from the benefit the costs of unsuccessfully endeavouring to obtain work. If the plaintiff does not apply for the benefit, it would seem to follow, as a matter of logic, that if the benefit is deductible from the damages, a failure to apply for the benefit will amount to a failure to mitigate damages. That view was not taken by Demack J. in Vassilef v. B.G.C. Marine Services (NSW) Pty. Ltd. (1980) Qd R 21, at p 22 , but if it were correct it would create additional problems in making the assessment.

However, in my opinion, rather than embark afresh on a consideration of what, on balance, might best suit the public interest, when such an inquiry is unlikely to lead to any definite conclusion, we should endeavour to maintain consistency in the application of the principle that has been established in the National Insurance Co. of New Zealand Ltd. v. Espagne (1961) 105 CLR 569 . In applying that principle it is clear that the unemployment benefit is conferred on a person who is entitled to it independently of the existence in that person of a right of redress against others. The entitlement to a benefit does not depend on the fact that the person concerned has been done any wrong; his unemployment may be due to the termination of his employment because of the depressed state of the public economy. Further, a person may be entitled to a benefit although he has suffered no injury; indeed, to be eligible for the benefit, the person concerned must satisfy the Director-General that he "was capable of undertaking... paid work that, in the opinion of the Director-General, was suitable to be undertaken by the person" (s. 107(1)(c)(i) and he must not be in receipt of an invalid pension. Moreover, the benefit may in some circumstances be paid throughout a particular period notwithstanding that the recipient has undertaken paid work during the whole or part of that period: s. 107(3). The benefit does not depend either on the fact that the person entitled to it has suffered a diminution of his earning capacity, or has lost wages that he was previously able to earn, since a person who has never shown any capacity to earn and who has never in fact earned anything may get the benefit. The benefit is intended to provide some relief against destitution for a needy person who is unemployed, whether or not his unemployment is due to an injury, and whether or not he has any cause of action for damages. In my opinion it should be concluded that the Parliament intended that unemployment benefit should enure entirely for the benefit of the person who receives it and should not relieve from liability any other person who may be liable to pay damages to him. The case seems to me to fall entirely within the principles enunciated in National Insurance Co. of New Zealand Ltd. v. Espagne and I am unable to see any valid point of distinction between the unemployment benefit now in question and the invalid pension considered in that case.

For these reasons I would hold that the Full Court in Evans v. Muller was correct in deciding that the unemployment benefit should not be taken into account in the assessment of damages.

I would dismiss the appeal in each case.