Grazyna Zurkowska v Ilona Matic and Nrma Insurance Limited [1986] ACTSC 25 (24 April 1986)

SUPREME COURT OF THE ACT

GRAZYNA ZURKOWSKA v. ILONA MATIC and NRMA INSURANCE LIMITED
S.C. No. 1313 of 1982
Compensation to Relatives Action - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Compensation to Relatives Action - motor vehicle accident - cause of action in negligence - finding of negligence on the part of the first defendant - no contributory negligence on the part of the deceased.

Damages - assessment of damages - contingency of deceased terminating financial support - contingency of plaintiff remarrying - no question of principle.

Compensation (Fatal Injuries) Ordinance 1968 (A.C.T.)

Hollebone v. Greenwood (1968) 71 SR(NSW) 714

Government Insurance Office of New South Wales v. Maher [1981] FCA 76; (1981) 55 FLR 187

HEARING

CANBERRA
24:4:1986

ORDER

There will be judgment for the plaintiff against the first defendant in the sum of $190,475, apportioned as to $177,000 in respect of the plaintiff and $13,475 in respect of the son.

DECISION

This is an action for damages brought by the widow of Witold Stanislaw Zurkowska (hereinafter referred to as "the deceased") on her own behalf and on behalf of the son of the widow and the deceased. The claim arises out of the death of the deceased in a motor vehicle accident on 20 March 1982 and is brought pursuant to ss.7 and 13 of the Compensation (Fatal Injuries) Ordinance 1968 (the Ordinance).

2. The plaintiff and the deceased were married at Pulawy in Poland on 1 January 1973 in a civil ceremony and on 20 January 1973 in a religious ceremony. The son was born on 2 July 1973. The deceased was born on 15 May 1946 (almost 36 years of age at the date of death). The plaintiff was born on 24 September 1944 (41 years of age at the date of trial).

3. Liability for the cause of death is in issue. The plaintiff has to establish that the death of the deceased was caused by a lawful act, neglect or default, and the act, neglect or default is such that it would, if death had not ensued, have entitled the deceased to maintain an action and recover damages in respect of the injuries sustained (s.7 of the Ordinance).

4. The plaintiff's case was that on 20 March 1982 the deceased was lawfully driving motor vehicle registered number ACT YND 722 in a general northerly direction along Kent Street, Deakin, in the Australian Capital Territory, approaching the intersection of that street and Strickland Crescent. At the same time one Minas Lyristakis was driving motor vehicle registered number ACT YLW 515 in a southerly direction in Kent Street approaching the same intersection. In other words, Lyristakis was proceeding in the opposite direction to the deceased and approaching the same intersection from the other side of the intersection. At the same time the defendant, Ilona Matic, was driving motor vehicle registered number ACT YBK 064 in a general westerly direction along Strickland Crescent approaching the same intersection.

5. The plaintiff's allegation is that the first defendant failed to stop at a "Stop" sign which obliged her to stop and give way to the deceased travelling on her left. A collision occurred within the intersection which caused the deceased to veer on to his incorrect side of Kent Street and collide with the vehicle driven by Lyristakis in the opposite direction. As a result of the injuries sustained in that second collision the deceased died.

6. The writ of summons by which the proceedings were instituted was originally issued on 15 July 1982 and named the first defendant only as a defendant. On 30 November 1984 it was ordered by consent that NRMA Insurance Limited be added as a second defendant and that the plaintiff be at liberty to file and serve an amended Statement of Claim. That course was apparently adopted because after service of the writ of summons upon her the first defendant had died. It was agreed on the hearing that this was an entirely unnecessary step in the action as the plaintiff's cause of action would have endured against the estate of the first defendant pursuant to the Law Reform (Miscellaneous Provisions) Ordinance 1955 (s.4(1)).

7. Counsel for the defendants took no point about the unnecessary addition of the second defendant as a party and agreed that it is appropriate simply to make no order in respect of the second defendant. By their separate defences both defendants denied negligence and pleaded contributory negligence on the part of the deceased in failing to keep a proper lookout, travelling at an excessive speed in the circumstances, entering an intersection when it was not safe to do so and failing to take any adequate steps to avoid a collision with the firstnamed defendant's motor vehicle.

8. I am satisfied on the evidence of Mr and Mrs Lyristakis, Sergeant R.J. Gresham, Senior Constable D.J. Dwyer, Mrs E.A. Burgess, Mr M.J. Considine, and the further evidence of the photographs and plan that the death of the deceased occurred as a result of the injuries sustained by him in the accident which ensued when the first defendant failed to stop at the "Stop" sign at the intersection, causing the collision between her vehicle and the deceased's vehicle in the intersection and the subsequent collision between the deceased's vehicle and the oncoming vehicle. I therefore find negligence on the part of the first defendant.

9. I turn to the question of contributory negligence. The submission made by counsel for the defendants was that on the evidence the deceased had an ample opportunity to observe the first defendant's vehicle which was entering the intersection from the deceased's right and despite that opportunity he failed to take appropriate evasive action. It was further submitted that the course of the deceased's vehicle after the collision with the first defendant's vehicle was indicative of speed on the part of the deceased.

10. It is necessary to review the evidence relating the facts of the collision. Mr Lyristakis gave evidence that as he was driving in Kent Street approaching the Strickland Crescent intersection he could see two cars coming towards him on the other side of the intersection. He said he could not estimate how fast they were going before the intersection but that it was about 60 kph. He also saw the first defendant's vehicle enter the intersection from Strickland Crescent on his left. He said that he did not actually see her vehicle stop but saw it half way through the intersection. Asked how fast the vehicle was travelling he said probably about 20 kph.

11. Mrs Lyristakis said that she was travelling as a front seat passenger with her husband and that she saw a car approaching the intersection from their left heading towards the Mint. When she first saw it it was back from the actual white line. At no time did it come to a standing position and it was travelling all the time. It came across the white line and she realised that that vehicle and the vehicle of the deceased, which was coming in the opposite direction, were very, very close and that there was an impact. She estimated the speed of the first defendant's vehicle to be no more than 10 kph and said that it did not stop at the intersection.

12. Mrs Burgess was travelling in a taxi behind the first defendant's vehicle in Strickland Crescent. She saw the first defendant's vehicle go across the intersection very slowly. She also saw the deceased's vehicle coming from the left and saw the first defendant's vehicle clip the back of the deceased's vehicle, which then swerved and hit the other car coming in the opposite direction in Kent Street. Asked about whether the first defendant's vehicle had stopped at the "Stop" sign she said that she really did not know whether it had stopped or not.

13. The last eye witness was Mr Considine. He was driving his motor vehicle in an easterly direction in Strickland Crescent on the opposite side of the intersection to the first defendant, intending to cross Kent Street and proceed east. He was in a good position to witness the accident. He was stationary at the intersection looking to his right and waiting for a space to go through. He became aware of the first defendant's vehicle when it was crossing the intersection at 5-10 kph. He saw the deceased's vehicle coming from his right and it came towards Mr Considine "to make as much room as he could to go around". The first defendant's vehicle just clipped the tail of the deceased's vehicle which eventually collided head on with the car coming from Mr Considine's left. He estimated the speed of the deceased's vehicle to be 60 kph.

14. The first defendant was interviewed by Sergeant R.J. Gresham on the day of the accident at her home at 7 Eggleston Crescent, Chifley. He asked the first defendant what had happened and she said:

"We came along that street; I saw the stop sign and

stopped; I looked to the left and to the right; I
only saw a white car on my left side, which was far
away; I started to move the car off to cross the
intersection; I nearly cross the intersection when
I saw something flash across the front of my car;
when I saw the flash, I just stopped the car, and
my daughter who was with me told me not to stop
there but to drive across the road."

Later when asked whether her vehicle collided with any other vehicle as she crossed the intersection she said she did not feel hitting anything, that she just saw something flash past the front of her car. She said she braked but did not know what it was.

15. I am satisfied on the evidence that the deceased was travelling at a reasonable speed in all the circumstances, that he took some evasive action when he could see that the first defendant was not going to give way to him, and that he must have been keeping a proper lookout in all the circumstances. The defendants have not satisfied the onus of establishing contributory negligence. There will therefore be judgment for the plaintiff.

16. The deceased was a University scientist by occupation, specialising in micro-biology. He had published some 18 papers in Poland and another 8 papers after his arrival in Australia. He and the plaintiff decided that Australia would be the best place for them and their son as a family and accordingly the deceased applied for and obtained a research fellowship at the Australian National University. He came to Australia to take up that position in October 1980. The plaintiff and their son stayed behind in Poland as she had some academic commitments which she had to complete during that academic year. They did not arrive in Australia until 17 July 1981.

17. Professor J.A. Pateman, Professor of Genetics and Head of the Department of Genetics in the Research School of Biological Sciences at the Australian National University, said in evidence that he was the Chairman and Convenor of the Selection Committee for the appointment which the deceased obtained. He said that there were some 5-10 applicants for the position. The reason the deceased was selected was that he was not only well qualified in a general sense but that he had some specific expertise. He was clearly the most suitable applicant. The appointment was for a period of three years with a strong possibility of a further two years. In Professor Pateman's opinion the deceased would almost certainly have been able to stay for the additional two years if he had wished to do so. That would have taken him up to October 1985. If he had done so, his salary would have been at the top of the research fellow grade.

18. With regard to career prospects generally Professor Pateman said that the deceased would have been a good prospect for a lectureship, which are tenured positions in Australian universities. In Professor Pateman's opinion the deceased would probably have gained promotion to senior lecturer. That would have been the deceased's minimum level of expectation and he might well have expected to have become a senior lecturer within five years. Furthermore, the deceased's expertise was commercially valuable and he could have gained positions in private industry. Professor Pateman knew of the deceased's publications and from them knew that the deceased was well qualified and that is why he gained the position as a research fellow.

19. I accept Professor Pateman's evidence about the deceased's qualifications and prospective career path, there being no evidence to the contrary.

20. After the plaintiff and their son arrived in Canberra the family was reunited, initially at Bruce Hall at the Australian National University, and then they moved to a university house at 35 Carroll Street, Hughes. They were living there at the time of the deceased's death. According to the plaintiff they established many friends, Australian and Polish, and spent all their spare time together as a family. Before their arrival the deceased had maintained contact with the plaintiff and the son by letters and telephone calls to Poland. They both attended evening classes to learn the English language and had both applied for permanent resident status in Australia. The plaintiff actually obtained her Australian citizenship in February 1985. They had formed a mutual decision that Australia was the best place to live as a family. They were very happy here and were making plans for their future. Those plans included buying a home and a beach house.

21. The son Milosz proved to be a very intelligent and capable student. His school reports in evidence demonstrate how well he was progressing at Hughes Primary School. The deceased and the plaintiff intended that he would go to the Canberra Grammar School for his secondary education and that after Grammar School he would go on to a university education. Furthermore, they both wished to have more children but had not been successful up to the time of the death.

22. The plaintiff denied in cross-examination that there was any danger of the marriage not lasting. She was asked to translate from Polish into English a letter from the deceased to another woman. The terms of the letter were affectionate and related to the deceased's intention to visit Japan with the other woman. The plaintiff's evidence was to the effect that she did not believe that that was her husband's intention because she and her husband were planning the trip to Japan themselves. She said that she just could not believe that her husband had in fact invited some other woman to Japan and that she was sure that he was going to take the plaintiff.

23. She denied that she knew anything about any association between her husband and a lady by the name of Bosenna Czuchanska until that lady made a claim to the University in respect of the deceased's superannuation which, of course, was after his death. The plaintiff said that she did not know that that lady was alleging that she was the deceased's defacto wife, that she absolutely did not believe it. She was shown a document in cross-examination and agreed, having seen the document, that her husband had instructed an advocate in Poland to commence divorce proceedings on 13 September 1980, which was just a few weeks before he left Poland to come to Australia on 6 October 1980. She denied that she and her husband had had any discussions whatsoever about divorce prior to his leaving Poland.

24. After the claim for superannuation the plaintiff was shown a photograph of Bosenna Czuchanska. She recognised her as a clerk at the Lublin University, Poland, who had worked in the same Department of the University as the plaintiff. The plaintiff was told that her husband had been seen twice with the same woman in Australia. She asked her husband about it and her husband had denied it. She denied that he had lived with Bosenna Czuchanska at Bruce Hall for a period of 6 months.

25. Bosenna Czuchanska gave evidence on behalf of the defendants. I am satisfied on her evidence that she and the deceased had been conducting an intimate relationship which commenced in Poland before the deceased's emigration to Australia, and continued in Australia after Bosenna Czuchanska arrived on 17 January 1981. They lived together as man and wife at Bruce Hall for about a month. Even after the arrival in Australia of the plaintiff and the son, the intimate relationship continued. In addition to the evidence of Bosenna Czuchanska there were a number of photographs, letters and diaries in the possession of Bosenna Czuchanska to support her oral evidence about her relationship with the deceased.

26. I am satisfied on the evidence that Bosenna Czuchanska arrived in Australia with the intention of taking up a permanent relationship with the deceased. He picked her up at Canberra Airport on her arrival there and drove her to his room at Bruce Hall. After she moved to her own flat, he continued to see her regularly and provide her with some financial assistance. The photographs and her evidence establish that the relationship was continuing right up to the date of the deceased's death.

27. It was submitted on behalf of the defendants that such was the strength of the relationship that it would have inevitably caused the plaintiff and the deceased to have separated. There was certainly some evidence that the plaintiff had accepted the fact of the relationship between the deceased and the other woman. Bosenna Czuchanska gave evidence of four telephone conversations when the plaintiff asked her for more time for herself as she was ill and had to have an operation, that it was too early for the plaintiff if the deceased was going to leave her, and that she would suffer too much. The first such conversation took place a few months before the deceased met his death. In later conversations, which occurred a few days apart soon after the first conversation, the plaintiff pleaded with Bosenna Czuchanska to leave the deceased alone.

28. Those telephone conversations were not put to the plaintiff in cross-examination and consequently I have not had the benefit of her evidence in relation to them. Nor did counsel for the plaintiff seek to recall the plaintiff to give evidence in reply in relation to those telephone conversations.

29. I am satisfied on the probabilities that they did occur because of what the plaintiff is alleged to have said to Bosenna Czuchanska. There was some evidence to the effect that she had consulted a doctor about a medical condition which had to be rectified by a small operation.

30. It was submitted on behalf of the plaintiff that, even if there was a relationship between the deceased and Bosenna Czuchanska, that did not mean necessarily that the relationship was likely to cause the marriage to terminate and that, in any event, the ultimate question from the point of view of damages was whether the deceased would have terminated his financial support of the plaintiff and her son. It was submitted that the deceased at all times demonstrated an ongoing concern for the welfare of the plaintiff and their son. He did not try to discourage them from coming to Australia, maintained significant contact with them both while they were in Poland and he was here, on their arrival he established a home for them, the atmosphere in the home was a normal domestic one, he never shirked his obligations to support the plaintiff and the son in any way and there was nothing to indicate that he would not support them in the future.

31. I am satisfied that there was a relationship with the other woman, that it was very strong and likely to continue. I am, however, unable to prophesy whether the marriage would have broken down entirely or not. It is significant that the relationship had already been going on for about five years before the deceased emigrated to Australia. The marriage survived that period and the subsequent period in Australia. In the assessment of damages for future economic loss I propose to take into account the relationship and the impact of that relationship on the marriage as one of the adverse contingencies affecting the future support of the plaintiff and the son.
I turn to the question of dependency. The plaintiff made estimates of the expenditure of the family income, being the deceased's salary, at the date of death. Her estimates were in evidence as Exhibit 12:

4 wkly Annual

1. Housing rent $ 300 $ 3600
2. Electricity 50 600
3. Books (Grazyna) 40 480
4. Books (Witold) 30 360
5. Books (Milosz) 15 180
6. Toys (Milosz) 10 120
7. Theatre, cinema
concerts 70 840
8. Other entertainment
(restaur., parties) 100 1200
9. Newspapers, magazines 30 360
10. Polish new released
books 10 120
11. Correspondence 30 360
12. Holidays 100 1200
13. Car Expenses 60 720
14. Car loan repayment 188 2256
15. Food 400 4800
16. Clothing (Grazyna) 80 960
17. Clothing (Witold) 40 480
18. Clothing (Milosz) 20 240
19. Calls to Poland 20 240
20. Support Families
in Poland 40 480
21. Household supplies 30 360
22. Saving 300 3600
-----
$ 2003

32. There were in evidence two reports by Messrs E.S. Knight and Co., consulting actuaries, in which calculations of past and future economic loss have been made. The first report calculates the loss as at 16 October 1985 and the second report updates those calculations to 1 January 1986. The accuracy of the calculations was not disputed by the defendants but the assumptions upon which the calculations were made were not accepted by the defendants. It is necessary therefore to review the assumptions upon which the calculations were made. Those assumptions were:

"(a) Dr Zurkowska was born on 15/5/46 and died on 20/3/82;

(b) at the date of his death Dr Zurkowska was contributing
to the support of the following members of his family

Dependant Date of Birth

Grazyna Zurkowska (widow) 24/09/44
Milosz Zurkowska (son) 02/07/73

(c) but for his death Dr Zurkowska would have spent the
following percentages (mid-range from Table 9.1,
Luntz, Second Edition) of his after-tax income on
the support of his wife and son

(i) from 20/3/82 to 31/12/85 (past)

Widow: 65%
Son: 5%

(ii) for the future joint lifetimes of Dr Zurkowska
and his wife from 31/12/85 to 15/5/2011 (age 65
for the deceased): Widow 65%

(iii) for the future joint lifetimes of Dr Zurkowska
and his son from 31/12/85 to 2/7/95 (age 22
for the son): Son 5%

(d) but for his death Dr Zurkowska would have been
employed as a Research Fellow in a Research School,
being paid at the rates set out in Attachment A to
the letter from The Australian National University
dated 3/10/85 but increased by 3.8% where appropriate
for the 4/11/85 National Wage Case decision, until
promotion to Senior Lecturer on 1/1/91;

(e) but for his death Dr Zurkowska would have stayed as a
Senior Lecturer from 1/1/91 until retirement at age 65
being paid at rates set out in pay scales attached to
your letter of 7/11/85 as provided by The Australian
National University but increased by 3.8% where
appropriate for the 4/11/85 National Wage Case decision;

(f) the deceased has not had nor would he have had any
tax deductions or rebates."

33. The facts assumed in (a) and (b) above were proved in evidence and may be adopted for the purposes of calculating past and future economic loss. The rates of pay set out in (d) above were established in evidence (Exhibit 6). I propose also to act on the assumptions that the deceased would have continued to be employed as a research fellow in a Research School until promotion to senior lecturer on or about 1 January 1991 and would have stayed as a senior lecturer until retirement at age 65, being paid at the rates specified for senior lecturer. In my view that was more probably than not the career path which the deceased would have followed.

34. I find that the deceased would have earned approximately $79,507 between the date of death and 31 December 1985. I think it is reasonable to adopt dependency percentages of 65% for the plaintiff and 5% for the son. Applying those percentages to the above figure of $79,507 the past loss of support in respect of the plaintiff is $51,680 and for the son, $3,975. Some adjustment to those figures, however, is necessary to take account of the vicissitudes of life between the date of death and 31 December 1985 and some favourable adjustment to the figures to bring them up to the date of judgment. I bear in mind also that those vicissitudes include the possibility that the marriage could have broken down, with some consequent adjustment to the extent of support which the deceased would have afforded the widow between the date of death and the present date, but recognising that in that eventuality the extent of the support of the son would probably not have varied.

35. Accordingly I think it is reasonable to allow the plaintiff $42,000 for past loss of support and make no adjustment to the figure of $3,975 in respect of the son.

36. For the purpose of quantifying as from 1 January 1986 the value of future loss, the actuaries have adopted a discount rate of 3% per annum and made no allowances for inflation or for tax upon income from investment of the sum awarded. Legally this is the correct method of calculation. At a dependency rate of 65% the value at 1 January 1986 of future loss of support to the plaintiff until the deceased would have attained the age of 65 years is $265,881. The figure for the son up to 22 years of age and on the same assumptions at a dependency rate of 5% is $9,835. These figures are based upon mortality rates for the deceased, the plaintiff and the son as set out in the Australian Life Tables 1980-82 but otherwise take no account of the vicissitudes of life such as sickness, earlier death, divorce and unemployment.

37. There was no evidence at all from the plaintiff about any prospects of remarriage. There was certainly no evidence of any current relationship which could result in marriage. My task would be easier if there were some evidence at least of how the plaintiff feels about remarriage. In the absence of any evidence at all, I think it is reasonable to take less account of the prospect of remarriage. Counsel for the defendant did not take up the invitation to suggest the rate of appropriate deduction to be made because of the contingency of the prospects of remarriage. I have to apply my own judgment. The plaintiff is a highly educated, attractive woman. As stated earlier she is now 41 years of age and in good health.

38. In Hollebone v. Greenwood (1968) 71 SR(NSW) 424 Sugerman AP, with whom Holmes J.A and Hardie A.J.A agreed, said:

"When a widow remarries, or is likely to remarry, the
question for the purposes of assessing damages under
the Compensation to Relatives Act is whether and to
what extent she and the dependent children are likely
to be as well off in a pecuniary sense as a result of
the remarriage as they were under their dependency
upon their deceased husband and father. This question
is not answered by pointing merely to the legal
obligations to maintain which flow from the remarriage
and stating that they will now stand in the place of
the dependency which has been lost. It is not
sufficiently answered even by showing that the earnings
of the second husband are equal to or greater than those
of the first husband. All the ups and downs of life
must be allowed for. The second husband may be an
invalid or may turn out to be an alcoholic. He may be
perfectly able to work but unwilling to perform his
obligation, whether it be legal or moral, to support
his wife and stepchildren properly. He may die shortly
after the remarriage or there may be separation and
divorce and the wife may have some good reason for not
pursuing her right to maintenance. It may indeed be the
wife's fault, or the result of faults on both sides, that
the second marriage does not turn out successfully . . ."

This passage was adopted by the Federal Court in Government Insurance Office of New South Wales v. Maher [1981] FCA 76; (1981) 55 FLR 187 at 194.

39. Applying those principles in respect of the prospects of remarriage and taking account of the other vicissitudes, particularly the prospect of the marriage breaking down, I think it is reasonable to apply a deduction rate of 50% to the figure of $265,881 set out above in respect of the widow. In round figures that yields a figure of $132,940. To bring that figure up to date I make a slight adjustment and provisionally assess the sum of $135,000 for future loss of support. To this there should be added the amount which I have already found for past loss of support, namely $42,000.

40. I do not think it is reasonable to make much of an adjustment to the provisional assessment of the value at 1 January 1986 of the future loss of support to the son until he attained the age of 22 years. It is more probable than not that even if the plaintiff and the deceased were divorced before he attained that age, the deceased would have continued to support him at the rate of 5% of his own net salary. Nevertheless, some slight adjustment for the vicissitudes of life and to bring the figures up to date is necessary and I adjust the figure to $9,500. To this has to be added $3,975 for past loss of support. The aggregate of all those figures is $190,475.

41. There will be judgment for the plaintiff against the first defendant in the sum of $190,475, apportioned as to $177,000 in respect of the plaintiff and $13,475 in respect of the son.