Application Under the Criminal Injuries Compensation Act 1983 and Rebecca Newton By Her Next Friend Sophie Mosessen [1992] ACTSC 70 (7 August 1992)

SUPREME COURT OF THE ACT

APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT 1983 and REBECCA
NEWTON by her next friend SOPHIE MOSESSEN
No. CIC 88 of 1991
Criminal Injuries Compensation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A Hogan

CATCHWORDS

Criminal injuries compensation - Death of mother - Loss of financial support - Society Security Pensions - Not received by applicant.

Criminal Injuries Compensation Act 1983: Ss 5(2)(b); 15(2)(a)

HEARING

CANBERRA
7:8:1992

Counsel for the Plaintiff: R.J. Patrick

Instructing Solicitors: Colquhoun Murphy

Counsel for Defendant: K.J. Holmes

Instructing Solicitors: Australian Government

Solicitor

ORDER

The Court orders that:
1. Compensation be awarded to the applicant in the sum of $40,000.00.

DECISION

This is an application for compensation under the Criminal Injuries Compensation Act 1983.

2. On 4 October 1989 one Peter Richard Dowling was indicted in this Court on a charge that on or about 25 March 1988 he did murder Bente Mosessen ("the deceased"). He was acquitted of the charge.

3. The application is made on behalf of the daughter of the deceased, by her next friend, who is the mother of the deceased. It is made pursuant to S.5(2)(b) of the Act, and counsel for the Territory properly concedes that at the time of the death the applicant was totally dependant upon the deceased.

4. The deceased was born on 4 November 1963. The applicant was born on 24 June 1981. At the date of the death the deceased was therefore aged 24 years and her daughter 6 years and 9 months.

5. On 12 February 1982 the deceased began to receive a supporting mothers pension from the Department of Social Security. During each of the years between then and her death she continued to receive a pension in varying amounts.

6. Early in 1986 the deceased had obtained temporary employment with AIDAB as a Clerical Assistant Grade 2. Departmental records show that she was employed on a series of contracts, and that she worked continuously from 10 April 1986 to 9 April 1987. Her salary up to 16 January 1987 was at the annual rate of $14,410, and after 19 January 1987 at the rate of $14,741.

7. A further contract was issued to her for the period 5 May 1987 to 1 August 1987, at a salary of $14,741, but she worked pursuant to that contract only from 5 May to 7 May 1987. The evidence does not disclose why she ceased work and failed to complete that contract. It is probable that for a time she reverted to deriving all her income from the Departmental pension. The Department's records show that in the financial year 1 July 1986 to 30 June 1987 she received a gross pension of $1,641.50, being a taxable pension of $861.50.

8. In the period from 1 July 1988 to 18 April 1988 (which is later than the date of the death), there was paid a gross pension of $5,789.20, being a taxable pension of $4,549.20.

9. On 29 January 1988 she obtained employment as a shop assistant with Coles, and she was working in that occupation at the time of her death. Her gross earnings were $923.17, from which tax was deducted of $81.00.

10. There is one income tax return in evidence, that for the 1986/87 tax year, which shows a taxable income of $12,011, on which tax of $958.94 was payable. That gives an average nett income of $212.54 a week.

11. The combination of her earnings from Coles and her pension during the financial year 1987/88 up to the date of her death gives a gross average of about $260 a week, and an average nett income of about $225.00 a week.

12. In the circumstances of this case it is inevitable that the evidence about financial matters is meagre. I agree that it is reasonable to approach the case on the basis that at the time of her death the applicant's mother had an income earning capacity of at least $225.00 a week. There is some evidence that she was becoming dissatisfied with working at Coles, and there is no reason to suggest that she might not have been able to obtain work again in the public service as a clerical assistant, which would have yielded her considerably more than that sum.

13. The ultimate fact to be determined is the financial loss that the applicant has suffered as a result of her mother's death. A principal factor in quantifying that loss is an estimate of the amount that the mother would have expended on her had she not been killed. The source from which her mother would have derived the money to expend on the applicant does not really matter. Also, the amount that her guardian has been able to expend on her, and the sources from which she has derived it, also do not determine the question, except to demonstrate that it would be practically impossible to care for the applicant without expending at least $52.00 a week. On the other hand, I think it would not be proper to assume that as much as half of the earnings of the deceased would have been expended on the applicant.

14. As a matter of judgment I think that an amount of about $80.00 a week is a reasonable starting point.

15. Counsel for the Territory has submitted, and counsel for the applicant did not contest, that the sum of $55.10 per week, which is paid to the applicant's next friend for the benefit of the applicant by the Department of Social Security, should simply be deducted from the amount that the mother would have expended. On the evidence in this case I am not persuaded that this is a correct approach.

16. The letter from the Department discloses that the guardian's own pension payments had been supplemented between March 1988 and May 1992 by "Mother's/Guardian's Allowance" payments of $2,760.60, "additional pension for children" payments of $5,287.80, and "family allowance" payments of $1,764.20 in respect of the applicant.

17. Those payments do not come within the literal meaning of S.15(2)(a), since they are not a pension or allowance that the applicant is receiving or entitled to receive as a consequence of the death of her mother. There is no evidence of the extent, if any, to which the guardian's own circumstances are relevant to those amounts, nor of what type of pension went to make up the payments that the deceased was receiving in respect of the applicant before her death. I might assume, for example, but there is no evidence, that the deceased had been receiving "family allowance" payments in respect of the applicant, just as the guardian did later, so that to that extent the death of the mother made no difference to the fact that there was that source of income for the support of the applicant. But the evidence is not in such a state as would enable me to base any meaningful calculations upon the pension or other payments made to the guardian.

18. If an adult receives a prescribed injury, and suffers financial loss as a result, it is obviously relevant to take into account any pension that the person receives, and S.15(2)(a) of the Act requires that account be taken of any such receipt. The amount is received directly by the applicant, is readily quantified, and can be simply subtracted from what would otherwise be the loss.

19. The receipt by the guardian of Social Security benefits in respect of the applicant does not seem to me to be so directly consequential upon the relevant prescribed injury, nor to reduce in any readily calculable way the loss that the applicant herself has suffered as the result of the loss of her mother, at any rate in the state of the evidence in this case, and I do not propose to reduce the compensation to be awarded on account of it.

20. The total of a weekly amount of $80.00 a week from 26 March 1988 to the date of this decision is $18,228.

21. The present value of $80.00 a week from this date till 24 June 1999, when the applicant will attain the age of 18 years, at a discount rate of 3 percent, is about $26,387.

22. That figure must be discounted on account of the normal contingencies, though over a period of only 7 years, and of the risk that the deceased might not have continued in work at all times, and that economic circumstances might have forced the applicant to enter the work force and become less dependent upon her mother before the age of 18. On the other hand there is the possibility, and it is on the evidence no more than that, that the deceased might have continued to support the applicant beyond her 18th birthday. A discount of 20 percent would give a result of $21,110.

23. On the basis of these calculations one arrives at a figure of the order of $40,000.

24. Is such a sum excessive as a replacement of the financial support that this applicant would probably have received from her mother between the ages of 7 and 18, taking into account the various contingencies, and even allowing for the fact that her guardian receives some Social Security benefits because she is caring for the applicant? I think not.

25. As a matter of judgment therefore, I award to the applicant compensation in the sum of $40,000.