Parker v Commonwealth [1965] HCA 12; (1965) 112 CLR 295 (30 March 1965)

HIGH COURT OF AUSTRALIA

PARKER v. THE COMMONWEALTH [1965] HCA 12; (1965) 112 CLR 295

Crown - Damages - High Court

High Court of Australia
Windeyer J.(1)

CATCHWORDS

Crown - Commonwealth - Tort - Negligence - Defence Forces - Act of member of defence force in peace time - Injury to civilian - Whether Commonwealth liable.

Damages - Assessment - Lord Campbell's Act (Vict.) - Pension under Superannuation Act 1922-1959 (Cth) - Whether amount attributable to entitlement to pension deductible from amount of damages awarded to dependants - Wrongs Act 1958 (Vict.), s. 19.

High Court - Action against Commonwealth - Tort - Personal injury - Act on high seas - Whether admiralty or ordinary jurisdiction - Action heard in Victoria - Law applicable - Colonial Courts of Admiralty Act, 1890 (53 & 54 Vict. c. 27), (Imp.) - Judiciary Act 1903-1960 (Cth), ss. 79, 80.

HEARING

Melbourne, 1965, March 5;
Sydney, 1965, March 30. 30:3:1965
ACTION.

DECISION

March 30.
WINDEYER J. delivered the following written judgment: -
On 10th February 1964, at night time, two ships of the Royal Australian Voyager, came into collision on the high seas some twenty miles off the Australian coast. The ships were exercising together. The Melbourne struck the Voyager and she sank. Some men were drowned. One of those in the Voyager who lost his life was Horace Stanley Parker. His widow who is the executrix of his will, suing on behalf of herself and a child, brings this action against the Commonwealth, claiming damages on the basis that her husband's death was caused by the negligence of the officers and crew of the two ships and of other servants of the Commonwealth. (at p298)

2. The action was commenced in the Admiralty jurisdiction of this Court. But in 1939 Parliament repealed s. 30 (b) of the Judiciary Act and since that date the sole source of the Admiralty jurisdiction of this Court has been the Imperial Act, the Colonial Courts of Admiralty Act, 1890. The jurisdiction thus derived is the same as that which in England the High Court of Justice had in its Admiralty jurisdiction in 1890: see Nagrint v. The "Regis" [1939] HCA 6; (1939) 61 CLR 688 and F. Kanematsu & Co. Ltd. v. The Ship "Shahzada" [1956] HCA 57; (1956) 96 CLR 477, and the discussions of this topic by Professor Cowen in his work Federal Jurisdiction in Australia (1959) pp. 57-65 and by Doctor Wynes in his Legislative, Executive and Judicial Powers in Australia, 3rd ed. (1962) pp. 623-627. Until the enactment of the Maritime Convention Act, 1911 (Imp.), actions for loss of life could not be brought in the Admiralty jurisdiction in England: Seward v. The "Vera Cruz" (1884) 10 App Cas 59 The plaintiff's rights are therefore it seems no greater, perhaps rather less, in an action in the Admiralty jurisdiction than they would be in an ordinary action in the original jurisdiction of the Court. I propose therefore to consider the case as if it were an ordinary action at law: see Huddart Parker Ltd. v. The Ship "Mill Hill" [1950] HCA 43; (1950) 81 CLR 502 (at p298)

3. Paragraphs 12 and 13 of the statement of claim are as follows: "12. (a) By reason of the provisions of the Commonwealth of Australia Constitution and of ss. 56 and 64 of the Judiciary Act 1903-1960 the Commonwealth of Australia is responsible and vicariously liable for the acts neglects and defaults of its officers and servants in the course of their service. (b) If the death of the deceased was caused by the wrongful act neglect or default of its officers or servants then the Commonwealth of Australia is liable to an action for damages for the benefit of the plaintiff and the said child as the widow and child of the said deceased. 13. The death of the said deceased was caused by the wrongful acts neglects or defaults of the officers of the said Voyager and of the officers of the said Melbourne and other officers and servants of the Commonwealth of Australia or of some of such officers and servants." (at p298)

4. Lengthy particulars of the negligences alleged are given in the statement of claim. The commanders and officers of the two ships are said to have been negligent in various ways in navigation and control. In addition there are allegations that they failed to ensure that the ships were in a seaworthy and safe condition, to have adequate life-saving equipment readily available, and to ensure that all persons aboard were properly trained and prepared for the eventuality of a collision. The particulars of negligence alleged against the other unspecified officers and servants of the Commonwealth are that they allowed the ships to proceed to sea when they and their equipment were not in a seaworthy and safe condition and when their officers and crew were not sufficiently trained and skilled for the purpose. Indeed the particulars are a catalogue of diverse defects and delinquencies alleged against numerous persons and of miscellaneous reproaches and criticisms. All of the acts of omission and commission alleged could not have been the proximate cause of the death of the plaintiff's husband. But the Commonwealth, apparently taking the view that some parts of the allegations were true, by its statement of defence admitted without discrimination the plaintiff's allegations of negligence, although not in terms the particulars. It is consistent with the defendant's admission of par. 13 that the death of the deceased was caused entirely by the negligence of some member or members of the Navy. The statement of defence also expressly admits par. 12 as above set out. (at p299)

5. It was suggested that the Commonwealth had thus admitted its liability and that all that this Court had to do was to assess the plaintiff's damages. This is a mistaken view. To speak of an admission of liability can be misleading. A defendant may admit any allegation of fact. But a defendant cannot by admitting that facts alleged entitle the plaintiff to have damages require the Court to assess and award damages unless those facts would in law have that consequence. The Court can only assess damages when it appears, from facts admitted or proved, that there was a legal wrong entitling the plaintiff to damages according to some measure recognized by law. The plaintiff's case is not advanced by the Commonwealth's having admitted par. 12 of her statement of claim. Strictly that paragraph should not have been there, for it does not state a fact but asserts a proposition of law; and the rules of the Court (O.20, r. 4) provide that a pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party relies. But the paragraph does bring to notice that the plaintiff's claim is based on the proposition that the Commonwealth is liable for the faults of its servants. That this is so is, speaking generally, beyond question; and whether in this case it be put that the Commonwealth is liable as shipowner for damages caused by the faulty navigation of its ships, or more directly as a master is for the consequence of its servant's negligence, seems to me immaterial. The law on the matter may be stated in the words of Starke J. as follows: "In Australia, the Constitution and the Judiciary Act 1903-1940, ss. 56 and 64, enable any person making any claim against the Commonwealth whether in contract or in tort to bring a suit in respect of the claim against the Commonwealth. The Commonwealth is thus made responsible for the acts, neglects or defaults of its officers in the course of their service as in a suit between subject and subject unless the officer is executing some independent duty cast upon him by law." . . . "But the Commonwealth comes under no legal liability for the acts or omissions of its officers unless such acts or omissions be tortious, or in other words unless such acts or omissions would as between subject and subject be tortious.": Shaw Savill and Albion Co. Ltd. v. The Commonwealth [1940] HCA 40; (1940) 66 CLR 344, at pp 352, 353 And, as was said by Dixon C.J., McTiernan and Williams JJ. in another case - Asiatic Steam Navigation Co. Ltd. v. The Commonwealth (1956) 96 CLR 397, at p 416 - the consequence of the provisions of the Constitution and the Judiciary Act is "to impose upon the Commonwealth a substantive liability in tort ascertained as nearly as may be by the same rules of law as would apply between subject and subject". Notwithstanding some differences of approach, in the end "you look to the substantive law as between subject and subject as the basis of the delictual liability of the Commonwealth" (1956) 96 CLR, at p 417 The result is that an action for negligence does not lie against the Commonwealth unless either the servant said to be negligent owed to the plaintiff (or in the case of death to the deceased person) a duty of care in the performance of his duties to the Commonwealth, or the Commonwealth itself had a duty to the plaintiff (or to the deceased) which the servant was selected to perform and bound to perform with due care: see per Latham C.J. in Field v. Nott [1939] HCA 41; (1939) 62 CLR 660, at p 670 Whether the so-called "vicarious" liability of a master for the tortious acts of his servant arises because the master is answerable for his servant's torts, or because the acts of his servant are imputed to him so as to make him himself liable in tort, has been much discussed and has provoked differing views, judicial and academic: Staveley Iron & Chemical Co. Ltd. v. Jones (1956) AC 627; Tooth & Co Ltd v. Tillyer [1956] HCA 49; (1956) 95 CLR 605 and references were given; see also the article by Doctor Glanville Williams in 79 Law Quarterly Review 522 and Darling Island Stevedoring and Lighterage Co. Ltd. v. Long [1957] HCA 26; (1957) 97 CLR 36 But, however the principle of liability should be expressed, I think that the Commonwealth is only liable for the acts or omissions of a servant if the servant would himself be liable: cf. Hall v. Whatmore (1961) VR 225, at p 229 In the recent case of Imperial Chemical Industries Ltd. v. Shatwell [1964] UKHL 2; (1965) AC 656, at p 686, Lord Pearce said: "Unless the servant is liable the master is not liable for his acts; subject only to this, that the master cannot take advantage of an immunity from suit conferred on the servant (Broom v. Morgan (1953) 1 QB 597)" To the exception which his Lordship there mentions I shall refer later. (at p301)

6. It was not disputed that the plaintiff could only have a right of action against the person or persons whose negligence caused the death of her husband if he but for his death would have had a right of action against him or them. It will therefore be necessary to consider his position. Could he have brought an action for damages if he had not died? Could he have sued the person or persons, whoever they were, by whose fault the collision occurred? Despite the wide generalities of the statement of claim, the collision was, it seems, probably the effective cause in a legal sense of the death of the deceased: and the persons whose negligence is said to have caused the collision are, or at the time were, members of the Navy. Would the deceased man Parker, had he lived, have had a right of action against them for personal injuries? That, I think, depends upon what was his status when in the Voyager. It is said that he was a civilian. That raises an important question. (at p301)

7. It is certain that no one, civilian or member of the armed forces, can bring an action for negligence based upon anything done in the course of actual operations of war: see Shaw Savill and Albion Company's Case [1940] HCA 40; (1940) 66 CLR 344 Such acts are not justiciable in the civil courts. On the other hand, it is equally certain that members of the armed services - and, through them and with them, the Commonwealth - are liable to civilians injured by negligent acts done in the course of peace-time duties. The case of a member of the forces injured by the negligence of a fellow member is, however, in a different category. And as I understand that there are cases of that kind now pending in this Court, I shall not express any final opinion on the question they raise. Nevertheless I feel bound to say that, as I see the matter at present, the law does not enable a serving member of any of Her Majesty's forces to recover damages from a fellow member because acts done by him in the course of his duty were negligently done. And if the negligent person is not himself liable, the Commonwealth in my opinion cannot be liable. The courts in England have for nearly two hundred years said, and rightly in my opinion, that to allow a member of the forces to bring an action against another member for an act done in the course of duty would be destructive of the morale, discipline and efficiency of the service, and that for that reason the common law does not give a remedy even if the conduct complained of were malicious. It is not necessary that I trace the line of well-known cases from Sutton v. Johnstone (1786) 1 TR 493 (99 ER 1215), and including Heddon v. Evans (1919) 35 TLR 642, in which these principles have been discussed. The question in its broader aspect is, the House of Lords said in Fraser v. Balfour (1918) 87 LJ (KB) 1116, still open, at all events before their Lordships. And I think it is still open before this Court: see Gibbons v. Duffell [1932] HCA 26; (1932) 47 CLR 520, at p 527 But, whatever be the true position in relation to malicious injuries and defamation, my present view is that actions of negligence are not maintainable by a member of the forces against a fellow member, whether commander, comrade or shipmate, in respect of acts done by him in the course of duty. (at p302)

8. Casualties can occur in the course of warlike operations against bandits or guerillas short of actual war. It seems impossible to import the concepts of the law of negligence, of safe systems of work and so forth, into such situations. And casualties sometimes occur as the result of negligent acts done in training for war or in the discharge by members of the forces of their peace-time duties. Accidents occur for military vehicles on the highway as well as for naval vessels on the high seas. The latter may sometimes attract more public attention. But the consequences for men concerned, or for their dependants, are the same. Their position in law does not differ. I must therefore view this case in a context of strict law, as laid down and applied in the past and as applicable at the present time to members of the armed services when on duty at home or abroad wherever our forces are deployed. I suppose no one would question the moral claims of the dependants of men who lose their lives in the performance of their duty in the Navy, Army or Air Force, whether in war or in peace. But claims, however strong, upon the compassion and the bounty of the Crown, and claims based upon statutory provisions for pensions, are far removed from a legal right to prosecute an action for damages. Claims that are not within the cognizance of a court of law must be dealt with administratively. Considerations different from the niggling processes of the Fatal Accidents Acts may govern their assessment. Moreover, they can be met without creating a corresponding right in the Commonwealth to be indemnified by any person: whereas when the Commonwealth is liable for damages by reason of the negligence of its servants it would seem that, in many cases, it has a legal right - whether or not it would be likely to enforce it - to recover from those negligent servants the amount of the damages it has to pay. (at p303)

9. It is worth noticing here that when the Crown Proceedings Act, 1947 (U.K.) made the Crown in the United Kingdom liable in tort at the suit of a subject, it was expressly provided (s. 10) that no act or omission by a member of the armed forces while on duty should render either himself or the Crown liable in tort for any personal injury to or death of another member of the armed forces. That preserved the common law so far as the member was concerned; and it made it clear that the Crown was not to become liable in tort if its servant were not. (at p303)

10. I should add that I have considered whether the question of the liability of the Commonwealth can be separated from that of the liability of a member of the forces at the suit of a fellow member. Is the case one in which an immunity of the servant can co-exist with a liability of his master, the Commonwealth, thus bringing the topic into the same category as the much discussed case of Broom v. Morgan (1953) 1 QB 597 to which Lord Pearce referred in the passage I have quoted above? I think not. I recognize that there may to-day be grounds in social policy for allowing an immunity to Crown servants while subjecting the Crown to liability: see the remarks by Professors Friedmann and Benjafield in their work Australian Administrative Law, 2nd ed. (1962) p. 107, and references there. But, as the law stands, that is not so. Whatever view one takes of the basis of the decision in Broom v. Morgan (1) the immunity of a husband from action by his wife there under consideration is the result of their relationship one to another. The immunity of a member of the forces from action by a fellow member is of a different order. It arises from their common relationship to the Crown and from the special nature of their service. It is not that members of the forces have no duty to be careful. They have, for they are liable to punishment by court-martial for neglect of duty, and they must perform their duties having due regard to the safety of their fellows and to the orders of their superiors. To neglect safety precautions prescribed, or to subject a person or a ship unnecessarily to hazard is an offence. But that a man may be punished for carelessness does not mean that he had a common law duty of care neglect of which could give rise to a civil action for damages. (at p304)

11. It is for these reasons that I find it necessary to consider what exactly was the position of the plaintiff's husband when in the Voyager. Was he while there in the same position as a member of the Navy? Was he then subject to naval discipline?: cf. Marks v. Frogley (1898) 1 QB 888 I know of no reported case in which a similar question has actually arisen for determination by a court. But it is noteworthy that the Admiralty admitted liability in actions brought by the widows of certain civilians who were in H.M.S. Truculent, a submarine, when she collided with a merchant ship and sank with much loss of life: see The Admiralty v. Owners of the Steamship Divina; The Truculent (1952) P 1 (at p304)

12. Parker, the deceased man, had served in the Navy as a rating. In December 1949 he was discharged upon the expiration of his then twelve-year period of engagement. He then entered upon two years' training as an electrician under the Commonwealth Rehabilitation Scheme. Having qualified as an electrician, he re-engaged in the Navy in 1952 for six years. He was discharged on 8th April 1958 upon the expiration of that period. At the time of his discharge he was a Chief Electrician, his rank being I assume Chief Petty Officer. Upon discharge he was immediately employed in a civil capacity as a Technical Officer at the Naval Dockyard, Williamstown. That was an appointment of a permanent character. Subject only to whatever prerogative or other right of dismissal the Crown had, he would not have had to retire until he reached the age of sixty-five. His work in the dockyard was largely concerned with the electrical equipment of ships. In the course of his duties he went to sea on occasions for brief periods while ships were doing trials after being in the dockyard. In this case the Voyager had refitted at Williamstown. There were certain final adjustments to be made in her electrical weapon control system, which could only be made under operating conditions. Parker therefore remained aboard pursuant to orders to carry out these adjustments while she was at sea. His employment at the dockyard was by virtue of the Naval Defence Act 1910-1952 (Cth), s. 41, which enables persons to be employed in a civil capacity in connexion with the Naval Forces or in connexion with any services auxiliary to the Naval Defence or any works or establishments in connexion with Naval Defence. Persons so employed are not subject to the Commonwealth Public Service Act. Their discipline is regulated by the Naval Establishment Regulations made under the authority of the Naval Defence Act. The Naval Board can punish those who commit offences against these Regulations. The Imperial Naval Discipline Act makes various persons, not regular members of the Royal Navy, subject to the disciplinary code it enacts: see Halsbury, 3rd ed. vol. 33, pp. 938,939. And it may be that in England a person in a position similar to that of the deceased would, while in a ship, be subject to the Act. But the Naval Defence Act applies the Naval Discipline Act to members of the Australian Naval Forces only, not to other persons. No doubt the deceased was when at sea subject to the general discipline of the ship he was in. But a breach of discipline on his part would not have been triable by naval court-martial, but would have been dealt with by the Officer-in-Charge of the dockyard or by the Naval Board. I conclude, therefore, that he was in the Voyager in a purely civil capacity and thus not himself disqualified from bringing an action for negligence. (at p305)

13. By what law does the plaintiff then get a right of action for his death? There are two questions in this. The first arises because at common law no action lies for the death of a person. The second arises because the doctrine of common employment, until abolished, applied as between members of the crew of a ship, including the master; and this protected the shipowner from liability for harm suffered by one of them by the negligence of another: Hedley v. Pinkney & Sons Steamship Co. Ltd. (1894) AC 222; Huddart Parker Ltd v Cotter [1942] HCA 34; (1942) 66 CLR 624 The harshness of both these rules of the common law has been ameliorated by statute in all States of the Commonwealth. In each State there is a statute similar to the English Fatal Accidents Act, 1846, Lord Campbell's Act, giving the dependants of a man tortiously killed a right to compensation for the pecuniary loss his death has caused them. And in each State the doctrine of common employment has been abolished. But the enactments on both matters are confined, in their direct operation, to events occurring within the States enacting them. There is not, as far as I am aware, any Commonwealth Act dealing with either matter. In an action against the Commonwealth based upon acts occurring within a State the State law would be applied: Washington v. The Commonwealth of Australia (1939) 39 SR (NSW) 133; Pitcher v Federal Capital Commission [1928] HCA 44; (1928) 41 CLR 385 But the State law does not reach out into the high seas. And in this case the wrongful act and the resultant death both occurred there. The ships were both Commonwealth ships. The law to be applied is Commonwealth law. The Court sits to exercise federal jurisdiction. But there is no federal enactment operating directly; and the common law denies a remedy. The solution of this difficulty must be sought by asking whether federal law attracts and adopts State law, making it for purposes of an action in this Court the lex fori. Sections 79 and 80 of the Judiciary Act are the relevant provisions. Opinions have differed somewhat as to the manner in which these sections operate: see Pedersen v. Young [1964] HCA 28; (1964) 110 CLR 162 But in whatever way they make the law of a State applicable as federal law, they do so only when the Court is exercising jurisdiction in that State. For this reason it seemed to me in Pedersen's Case (1964) 110 CLR 162 - where the Court was sitting in New South Wales to hear a demurrer, a proceeding which could determine the action which had been commenced in New South Wales - that there was no federal law that attracted any Queensland statute to that proceeding. In the present case I sat in Victoria. I heard evidence and argument there and at the conclusion stated my opinion on the legal matters involved, thus assuming and exercising jurisdiction in the case. But I reserved my decision so that I might put my reasons fully in writing and because I wished to consider submissions that had been made as to the amount of damages to be awarded. Adjudication is no doubt an essential part of the exercise of jurisdiction; but, with the assent of counsel for both parties, I am delivering my judgment in New South Wales to avoid keeping the parties waiting until the Court next sits in Melbourne; and I do so on the view, which both parties urge, that jurisdiction in the case is to be taken as having been exercised in Victoria. Counsel for the plaintiff and for the Commonwealth were in agreement that the law to be applied was to be found in the provisions of the Wrongs Act of Victoria corresponding to the Fatal Accidents Act, 1846, Lord Campbell's Act. Two approaches leading to that conclusion were suggested. (at p306)

14. One takes as its starting point that, the action being heard in Victoria, the Commonwealth is subjected to the law of Victoria, including the rules of private international law applicable there: Musgrave v. The Commonwealth [1936] HCA 80; (1937) 57 CLR 514 Then, having regard to the decision in Davidsson v. Hill (1901) 2 KB 606, it is said that the conditions existed necessary to give the plaintiff a right of action according to the doctrine of Phillips v. Eyre (1870) LR 6 QB 1: the law of Victoria being by adoption the lex fori. See Koop v. Bebb [1951] HCA 77; (1951) 84 CLR 629 and a learned article, The Conflict of Laws and the English Fatal Accidents Act by Mr. P. R. H. Webb in 24 Modern Law Review (1961) p. 467. (at p307)

15. The other approach is more direct. It looks simply to the words of s. 80 of the Judiciary Act - that, so far as the laws of the Commonwealth are not applicable or are insufficient to provide adequate remedies, "the common law of England, as modified by the Constitution and by the statute law in force in the State" shall govern the Court in the exercise of its jurisdiction there. The doctrine of common employment was abolished in Victoria by the Employers and Employees Act, 1945. That is a modification by statute of the common law: so too is the introduction of a right of action for damages consequent upon a death. Thus ran the argument. It may be that constituting an entirely new right of action is not well described as a modification of the common law. But I think that would be too narrow a view. As was said in Koop v. Bebb (1951) 84 CLR, at p 641 in the judgment of Dixon, Williams, Fullagar and Kitto JJ., the mischief which Lord Campbell's Act was to remedy "was revealed as a lacuna in the law of liability for wrongs". I am prepared to regard the filling of the lacuna as a modification of the common law. Furthermore s. 79 may be invoked as having the effect succinctly stated by the Court in Commissioner of Stamp Duties (N.S.W.) v. Owens (No. 2) [1953] HCA 62; (1953) 88 CLR 168: "The purpose of that section is to adopt the law of the State where federal jurisdiction is exercised as the law by which, except as the Constitution or federal law may otherwise provide, the rights of the parties to the lis are to be ascertained and matters of procedure are to be regulated" (1953) 88 CLR, at p 170 Whatever path be taken the same end is reached - that I must have regard to the law of Victoria. (at p307)

16. I therefore go now to consider what sum should be awarded as damages, assessed in accordance with the law of Victoria contained in the Wrongs Act. All that the Act, following the words of Lord Campbell's Act, says as to damages is that they shall be proportionate to the injury resulting from the death to the persons for whose benefit the action is brought. As the learned authors of the last, the seventh, edition of Winfield on Tort p. 133 observe, "the Act is remarkably reticent about what is recoverable and the courts have had their hands pretty full in implementing it on this point". Their endeavours have not produced an altogether simple body of law. But the governing principles, which are now well established, may be stated in two sentences. The first is from the judgment of Pollock C.B. in Franklin v. The South Eastern Railway Company [1858] EngR 669; (1858) 3 H & N 211 (157 ER 448) where he said that the damages "should be calculated in reference to a reasonable expectation of pecuniary benefit, as of right or otherwise, from the continuance of the life" (1858) 3 H & N, at p 214 (157 ER, at p 449) The other is from the speech of Lord Porter in Davies v. Powell Duffryn Associated Collieries Ltd. (1942) AC 601 where his Lordship said that the damages "are given to compensate the recipient on a balance of gains and losses for the injury sustained by the death" (1942) AC, at p 623 I do not think it necessary to discuss the numerous cases in which the manner of applying these principles has been considered. The computation of losses must be made with the guidance that is furnished by decisions of courts. On the other side of the account there have been legislative directions, less so in Victoria than in some other jurisdictions, that certain benefits accruing to the dependants of the deceased upon his death are not to be set off against the loss they suffered. In particular it is now generally provided by statute that the proceeds of life policies are to be disregarded. (at p308)

17. In the period of six months or so immediately before his death the deceased had actually received, after deducting tax and superannuation contributions, an average of about 36 Pounds a week by way of salary, for overtime work and for what were called trial allowances being amounts paid to him in respect of times spent at sea in ships during their trials. His remuneration was as a Technical Officer Grade 1. He would in the ordinary course have advanced within about a year to the next grade, Technical Officer Grade 2, and have become entitled to a higher salary. He could confidently expect that, after two annual increments, he would receive the maximum salary of that grade, namely 76 Pounds 17s. 5d. a fortnight, and also earn overtime and trial allowances. It is improbable that he would have advanced further; and I propose to assume that for the rest of his working life he would receive salary at whatever was from time to time the top rate of a grade 2 officer of his category. Counsel's estimate, necessarily somewhat speculative, was that he would have received a net income, after deductions for tax and superannuation, of about 40 Pounds per week. On the evidence I think this estimate is justified. It seems most unlikely that the salary of the grade would be reduced in the future. At the time of his death he was forty-four. His wife, the plaintiff, was forty. Their daughter, an adopted child, was seventeen. The husband and wife lived in a cottage which, subject to a mortgage, he owned. This property was valued for probate purposes at 3,800 Pounds. The amount of the mortgage debt, which had been progressively reduced, was 1,641 Pounds at the date of death. The daughter was then a trainee nurse at a Melbourne hospital. She had her board and residence there. After deductions for board and for taxation, she was receiving from the hospital 9 Pounds a fortnight. She will, in the ordinary course, finish her training and become qualified as a trained nurse in March 1966 or about then. On her time off from the hospital, about two days each week, she lived at home. She occasionally received small sums as pocket money from the deceased or the plaintiff. She also got at irregular intervals some aid towards purchasing clothes and in other ways. Whether given by her father or her mother, the source of all this was ultimately his earnings. (at p309)

18. The plaintiff had an exact knowledge of the economy of the household. I thought her a truthful and careful witness. She said that the deceased used to bring home his pay envelope unopened each fortnight - he was paid fortnightly. He kept 6 Pounds for himself and she had the management and disbursement of the balance, most of which went into an account on which she operated. The outgoings attributable to the house, instalments of principal and interest, rates, electricity charges and so forth were all met in this way as well as the ordinary expenses of housekeeping. She seems to have managed the family finances for the general benefit of the household. She bought her husband's clothes. The household furniture is said to have been her property. It was not included in his estate for probate purposes. It, or some of it, was however bought by his earnings. It included a television set, washing machine and other articles of a similar kind all paid for in this way. She had a motor car bought in the same way. She was not regularly employed herself, although she had some parttime work as a saleswoman in a shop for a period. She undertook this as a temporary arrangement to help meet the cost of some alterations and renovations to the house. Speaking generally, she was dependent on her husband. It is not necessary to set out the details of her evidence as to the way in which his earnings were expended. She arrived at a conclusion that the advantages measurable in money that she and the daughter were together receiving at the time of her husband's death amounted to 26 Pounds per week; and this was put forward as the amount of her direct pecuniary loss. It may be that, as counsel for the Commonwealth suggested, a more rigorous dissection of the expenditure would produce a lesser figure. But such calculations are difficult. They can become niggardly. The plaintiff and her husband had enjoyed together whatever they had. It is almost impossible to put separate prices upon their separate participations. But some assumptions must be made. I think that it is reasonable to conclude, on the basis that the deceased's salary would be 40 Pounds per week, that the advantages the plaintiff would have derived for herself and her daughter would have been a home in which to live and other benefits having a pecuniary value of not less than 25 Pounds per week. I propose to base an initial calculation on that sum. By what figure should I multiply it? The husband and wife each had, it seems, a normal expectation of life. He was in good health. She suffers from attacks of giddiness, but medical evidence was given that this condition would not significantly reduce her expectation of life. An actuary was called. Taking into account the statistical probabilities of death, as shown by the Australian life tables, he calculated what in the case of a husband aged forty-four and a wife aged forty is the present capital value of an income of 1 Pounds per week payable while both husband and wife live, the income to cease on the husband attaining the age of sixty-five. Calculated at 4 1/2% it is 631Pounds; at 5%, 607 Pounds; at 6%, about 560 Pound- this last was not exactly calculated. It seems to me that to-day a rate of 5% may be assumed and that this may for the purpose of the calculation be taken as giving a figure of 600 Pounds. Multiplied by 25 this gives 15,000 Pounds. Some deduction it might be suggested should be made at this point, as the husband's earnings might, because of ill health or from some other cause, cease before he reached the age of sixty-five - the contingency of his death is allowed for in the actuarial calculation. But as against a possible cesser of salary before sixty-five there is the important certainty of superannuation upon retirement - and from this the wife might be expected to benefit. There are other possibilities too such as some remunerative employment after sixty-five. Predictions of what the future might have held, if death had not occurred when it did, make the assessment of damages "proportionate to the injury resulting from death" very much a matter of speculation. Reliance upon calculations based upon average life expectancies, without regard to the seeming probabilities of the individual case, can give a specious appearance of certainty to an unsure conclusion. No two cases are alike. One matter that it is always said must be taken into consideration in cases of this kind is the possibility of a widow remarrying. As this Court said in Carroll v. Purcell (1961) 107 CLR, at p 79, "This, for what it is worth in any particular case, has so long been regarded as having some value in the assessment of damages in fatal accident cases that it is profitless to debate how far the established rule is justified". The plaintiff said when asked about this: "Nobody can foretell the future. If I still feel the way I do now, I will never remarry". I was told by the actuary who gave evidence that about one-third of the women who become widows at the age of forty remarry at some time. This piece of information seems to me interesting but not very helpful. So much depends upon matters peculiar to the person and her circumstances, on various factors both emotional and material. However, I have taken the possibility of the plaintiff's remarrying into consideration along with various other prospects that counsel mentioned, or which have occurred to me, as telling one way or the other in the estimation of the pecuniary loss in this case. I have noticed, so far as seemed to me proper, a number of contingencies and probabilities and I have given a passing not to what seemed to be mere possibilities. One thing weighs against another. I think, doing the best I can with imponderable data, that the pecuniary loss resulting from the death for the plaintiff and her daughter should be assessed at 15,000 Pounds. But this is only one side of the account. From the loss must be deducted any pecuniary gains. (at p311)

19. By his will the deceased left his whole estate to the plaintiff. It consisted of the cottage and personalty valued at 1,332 Pounds. So far as the former is concerned, the general rule that has been adopted in this Court has been to make no deduction because a wife on her husband's death has succeeded to what had been their matrimonial home - "when the widow merely continues to enjoy as owner what she previously enjoyed as wife": Zordan v. Metropolitan (Perth) Passenger Transport Trust (1963) 37 ALJR 159, at p 161; see Carroll v Purcell [1961] HCA 81; (1961) 107 CLR 73; Peipman v Turner (1960) 78 WN (NSW) 362 (See note 35 ALJR 139) It may be proper in some cases to take into account the value of a house, at least to the extent of the acceleration of succession to an absolute and irrevocable interest. In this case, however, I think the general rule should be followed and the house left out of account. (at p311)

20. I turn then to the personal property left by the deceased. The reported cases seem to show that, speaking generally, personalty in the form of savings and investments by a husband to which his wife succeeds on his death is not to be regarded in the same way as her succession to the matrimonial home. I do not think that there is any "strictly proper approach" to this question. I fully share the doubts that Kitto J. expressed in Public Trustee (W.A.) v. Nickisson [1964] HCA 62; (1964) 111 CLR 500, at pp 505, 506 But in the present case the question really does not arise except in respect of an amount of 82 Pounds that was in a Savings Bank account in the husband's name. This was the proceeds of a taxation reimbursement. I do not think it should be taken into account. There is no reason for supposing that the husband was making savings in the ordinary way as investments. The wife in effect made savings out of his earnings and spent them mainly in the purchase of things for their home, that is for their common enjoyment. In any event the item is too small to weigh much in the scale. The other items of personal estate to which the plaintiff succeeded by will are as follows: (a) The proceeds of two insurance policies, one on the life of the deceased producing 656 Pounds. This is not to be taken into account for it is excluded by the provisions of the Wrongs Act. The other was a policy the deceased held on the life of his daughter. I need not consider the effect of the Act on it as the amount received by the estate of the deceased in respect of it was only 46 Pounds, its surrender value at the date of death. (b) Wages and overtime accrued due to the deceased 270 Pounds. This should be left out of account being already involved in the calculation of loss. (c) The sum of 277 Pounds to which the deceased was entitled in lieu of long service leave. No separate argument was addressed to me on this. With some hesitation, I have come to the conclusion that it is not to be entirely ignored, neither is the full amount deductible. The plaintiff has received this amount now for her sole benefit. But it would in due course have come to her husband had he lived, and I can assume that she would then have shared in it. I think that I should deduct 100 Pounds in respect of it. (at p312)

21. The plaintiff became entitled on the death of the deceased to a pension of 284 Pounds 7s. 6d. for life or until remarriage. This pension comes to her, I assume, by virtue of the Superannuation Act 1922- 1959 (Cth). The deceased was a contributor. And, as stated above, in estimating his prospective income at 40 Pounds per week I took into consideration that his periodic contributions had been deducted. And in considering the duration of his earning life and the loss resulting from his death I was mindful that upon his retirement or earlier disablement his income would not be simply cut off but he would have received superannuation entitlements. The question then is, am I to take into account, as a gain to be set off against her loss, the pension she is receiving? In the United Kingdom since 1959 no account is taken of such a pension (7 & 8 Eliz. II c. 65, s. 2 (2)). Nor would it be taken into account in New South Wales since 1928 (No. 8 of 1928, s. 2 (1)). But those are the results of express statutory provisions. All that the Wrongs Act of Victoria provides (s. 19) is that "there shall not be taken into account any sum paid or payable on the death of the deceased under any contract of assurance or insurance . . .". In Tinka v. Lenan (1956) VLR 580, Sholl J. held that a pension under a superannuation scheme came within this description. There were decisions to the contrary, or tending to the contrary, in England before the law was amended there in 1959: see Carling v. Lebbon (1927) 2 KB 108; Lory v Great Western Railway Co. (1942) 1 All ER 230; Smith v. British European Airways Corporation (1951) 2 KB 893; Bowskill v Dawson (No 2) (1955) 1 QB 13; O'Neill v Smith & Co Ltd (1957) 3 All ER 255 Wanstall J. in the Supreme Court of Queensland considered the matter in Cockburn v. Brock (1959) QdR 254, and came to a conclusion different from that of Sholl J. Other cases on this topic are referred to in a useful article in the University of Queensland Law Journal, Vol. 4, p. 451. There is no authority binding upon me that is directly in point. As I see it, the question whether or not a particular pension scheme comes within the description "contract of assurance or insurance" must depend upon the nature of that scheme. The question is not I think resolved by asking simply whether or not it is a contributory scheme. Whether participation by employees is voluntary or compulsory and whether and to what extent it is subsidized by the employer may be matters for consideration in some cases. The question is different in fatal accident cases from that which arises in the assessment of damages for personal injuries. The distinction is adverted to in Lincoln v. Gravil [1954] HCA 24; (1954) 94 CLR 430, at pp 443, 444; The National Insurance Co. of New Zealand Ltd. v. Espagne [1961] HCA 15; (1961) 105 CLR 569, at p 588, and cases there mentioned. Counsel did not address me at any length on this matter, the plaintiff being content to rely upon the decision in Tinka v. Lenan (1956) VLR 580 But, with respect to the learned judge in that case, I do not think that I should regard the statutory pension that the plaintiff is receiving as a sum "payable under a contract of assurance or insurance". The question is, then, how much should be deducted because of it? (at p313)

22. According to the evidence, the average expectation of life of a woman aged forty is thirty-six years. And I take the present value of 284 Pounds per annum at 5% for thirty-six years to be 4,600 Pounds. But this pension would cease on remarriage and that possibility must again be allowed for. It must be considered this time in an unqualified way for the evidence is that remarriage puts an end to the pension; whereas what Viscount Simon said in Nance v. British Columbia Electric Railway Co. Ltd. (1951) AC 601, at p 615, suggests that the possibility that must be allowed for in estimating the widow's loss is that she "might remarry in circumstances which would improve her financial position", a qualified contingency. According to the evidence the average period of widowhood of a woman of forty - that is the average period until death or remarriage - is somewhere about nineteen years. I shall assume the pension in this case will continue for fifteen years. And, for ease of calculation, I shall take the pension of 284 Pounds per year as the equivalent of 5 Pounds 10s. 0d. per week, exactitude being unnecessary in the midst of so much speculation. The present value (at 5%) of 5 Pounds 10s. 0d. per week for fifteen years is, I believe, 2,970 Pounds. The assumption that the pension will cease in fifteen years may of course well be mistaken. It is quite likely that the plaintiff will live for many more years and will remain a widow. I have not overlooked that some allowance can be made in her favour for the contributions towards the pension made by the deceased as these, being deducted from his pay envelope each fortnight, reduced the amount which he took home to his wife. It is impossible to arrive at any scientifically accurate evaluation. The matter is not susceptible really of computation. But I think that 3,000 Pounds should be taken as the value of the pension. (at p314)

23. In the final result, therefore, I assess the damages at 11,900 Pounds (being 15,000 Pound, less 3,000 Pound for the pension and 100Pound for the long service leave payment). It remains only to apportion this amount between the widow and her daughter. Counsel suggested 400 Pound for the daughter, as her financial dependence on the deceased was small and was soon coming to an end. I think, however, that she could probably have expected to have some pecuniary benefits on occasions from her father after she had qualified as a nurse. For example, her wedding, if she should marry, as is I suppose quite likely, might have been such an occasion. I apportion the damages as follows: to the plaintiff Evelyn Parker 11,300 Pound; to Frances Evelyn Parker, her daughter, 600 Pound; the latter amount to be paid into Court and invested in accordance with the rules until Frances Evelyn Parker attains the age of twenty-one. The defendant is to pay the plaintiff's costs. (at p314)

ORDER

Judgment for the plaintiff for 11,900 Pound. The said amount to be divided as follows among the persons for whose benefit the action was brought: To the plaintiff, 11,300 Pound: to Frances Evelyn Parker, 600 Pound, to be paid into Court and invested for the benefit of the said Frances Evelyn Parker until she attains the age of twenty-one years or it is earlier directed by a Justice of this Court to be paid to her or applied for her benefit.

The defendant to pay the plaintiff's costs of the action.