Dwight v Bouchier & Ors [2003] NSWCA 3 (6 February 2003)

Last Updated: 10 February 2003

NEW SOUTH WALES COURT OF APPEAL

CITATION: Dwight v Bouchier & Ors [2003] NSWCA 3

FILE NUMBER(S):

40041/01

HEARING DATE(S): 4 December 2002

JUDGMENT DATE: 06/02/2003

PARTIES:

Lance Voss Dwight (Appellant)

Grada Bouchier (First Respondent)

Hawkesbury Valley Holdings (No 2) Pty Ltd (Second Respondent)

Roads and Traffic Authority (Third Respondent)

JUDGMENT OF: Mason P Stein JA Heydon JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 7408/00

LOWER COURT JUDICIAL OFFICER: Hosking DCJ

COUNSEL:

J D Hislop QC/Ms P J Gormley (Appellant)

B H K Donovan QC/J H Reimer (First Respondent)

H J Halligan (Second Respondent)

M Cashion SC/W S Reynolds (Third Respondent)

SOLICITORS:

Henry Davis York (Appellant)

Muggletons (First Respondent)

Johnstone Robertson (Second Respondent)

Crown Solicitors (Third Respondent)

CATCHWORDS:

TORT - negligence - duty of care - motor accidents - liability - quantum - Compensation to Relatives Act 1897 - ND

LEGISLATION CITED:

Compensation to Relatives Act 1897

Evidence Act 1995

Motor Accidents Act 1988, s 72

State Roads Act 1986

DECISION:

1) Appeal on liability dismissed. 2) Appeal on quantum of damages allowed in part. 3) Appellant is to pay the costs of the appeal. 4) Judgment and verdict of the trial judge be set aside and there be substituted a verdict for the first respondent in the sum of $801,814, apportioned as to $595,176 for the first respondent and the balance of $206,638 for the children. 5) The orders for costs made by the trial judge should not be disturbed.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40041/01

DC 7408/00

MASON P

STEIN JA

HEYDON JA

Thursday, 6 February 2003

DWIGHT v BOUCHIER & ORS

Tort - negligence - duty of care - motor accidents - liability - quantum -Compensation to Relatives Act 1897

The plaintiff brought a claim under the Compensation to Relatives Act 1897 (NSW) for economic loss occasioned by the death of her husband and sustained by herself and her two children fathered by the deceased. The deceased was fatally injured while driving along a public road. A collision occurred when a semi-trailer moving along the road in the opposite direction attempted to overtake a stationary third vehicle by deviating onto a slip lane, the road shoulder and an adjacent ditch. The truck driver, the first defendant's employee, lost control of the vehicle which veered onto the opposite side of the road, colliding with the deceased's vehicle. The second defendant was the owner of land adjacent to where the accident occurred, who had installed a pipe in the ditch to facilitate access to its property. The third defendant was the RTA, the authority responsible for the public roadway.

The trial judge found for the plaintiff as against the first defendant, rejected the plaintiff's claims against the second and third defendants, and dismissed cross-claims brought by the first defendant against the second and third defendants in aid of a statutory contribution claim. On appeal, the first defendant conceded liability, but argued that the trial judge erred (1) in finding the second and third defendants not to be liable, and (2) in his assessment of the quantum of damages for which the first defendant was liable, whether or not the second and third defendants were also liable.

Held (Stein JA, Mason P and Heydon JA agreeing), allowing the appeal in part,

1. The conclusion that the second and third defendants were not liable was sound both in terms of liability and causation. The second and third defendants were not liable because there was sufficient space for the truck to have passed the stationary car on its near side by travelling partly on the remaining space on the lane proper and partly on the slip lane. Even if there were negligence by the second and third defendants in placing or allowing the pipe to be placed in the ditch, the presence of the pipe did not cause the damage sued for: that damage was caused by the truck's deviation at an inappropriate speed off the road surface and into the ditch with an uneven surface punctuated by property accesses such as that of the second defendant: [11]-[13], [24]-[25], [31].

2. On the evidence available it was open to the trial judge to assess damages as he did in relation to all heads of damages but one. In respect of one head of damage, future loss of earnings by the plaintiff due to death of the deceased, there was little or no evidence to support the judge's finding in favour of that claim. The claim was no more than speculative and ought to have been rejected. Accordingly the verdict of $901,814 should be reduced by $100,000 to $801,814: [44]-[53], [56]-[57], [61]-[62], [67], [71]-[72], [74], [76], [80]-[81].

Husher v Husher [1999] HCA 47; (1999) 197 CLR 138, applied; Phali v Commissioner for Railways [1964-5] NSWR 1545; McIntosh v Williams [1976] 2 NSWLR 237; Gullifer v Pohto [1978] 2 NSWLR 373;

De Sales v Ingrilli [2002] HCA 52, considered.

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40041/01

DC 7408/00

MASON P

STEIN JA

HEYDON JA

Thursday, 6 February 2003

DWIGHT v BOUCHIER & ORS

Judgment

1 MASON P: I agree with Stein JA and the additional remarks of Heydon JA.

2 STEIN JA:

Introduction

3 This is an appeal from a judgment and verdict entered in a claim under the Compensation to Relatives Act 1897. Grada Bouchier brought the action on behalf of herself and the two children of the marriage with her deceased husband, George Bouchier. She sued three parties. The first defendant was Lance Dwight, the owner of the truck which collided with the car being driven by the deceased in the Bells Line of Road on 26 September 1989. Dwight is the present appellant. The other defendants were the owner of land adjacent to where the accident occurred, Hawkesbury Valley Holdings (No 2) Pty Ltd and the Roads and Traffic Authority of NSW (the RTA), the authority responsible for the roadway.

4 On 24 July 2001 Hosking DCJ found a verdict in favour of the plaintiff against the first defendant Dwight in the sum of $901,814, apportioned as to $206,638 for the two children equally, and the balance for the plaintiff. His Honour found a verdict for the second and third defendants on the plaintiff's claim against them and dismissed the cross-claim by Dwight against those parties.

5 The appellant appeals both on the issue of liability and on the quantum of damages awarded. However, ground 1 in the Notice of Appeal was abandoned at the hearing and the appellant's case on liability is confined to the cross-claims against the landowner and the RTA.

Liability

6 The appellant does not now challenge the finding of negligence against him. However, Mr Hislop QC submits on his behalf that his Honour overstated the appellant's degree of culpability and erred in finding that the second and third respondents were not also negligent and liable to contribute to the plaintiff's verdict. His written submissions suggest an equal apportionment.

7 The appellant was the owner of a Mack prime mover semi-trailer which was being driven by John Phillip Cattell on the day of the accident (26 September 1989) in a westerly direction on the Bells Line of Road at North Richmond. The vehicle consisted of a prime mover and an unladen semi-trailer said to weigh about 12 tonnes. As Cattell approached Crooked Lane he deviated to the left to overtake a car which was stationary on the roadway waiting to make a right hand turn into the lane. The driver of the stationary vehicle was waiting for on-coming vehicles to pass so he could turn with safety.

8 In order to overtake the stationary car on its left side, Cattell deviated the truck partly onto a slip lane, the road shoulder and an adjacent ditch. Indeed, it appears that the wheels of the left hand side of the truck travelled in the ditch until the near side wheel collided with a pipe located in the ditch at the entrance access to the property owned by the second respondent. At this point the driver lost control of the truck and it veered onto the incorrect side of the roadway and collided with the vehicle driven by the deceased, causing his death. The collision occurred at a point about 60m west of the intersection with Crooked Lane.

9 The speed limit on the roadway was 80 kph, the weather fine and there was still some daylight. The truck had its headlights illuminated. There is no doubt that Mr Cattell was driving too fast to safely make the manoeuvre attempted. His own assessment of his speed was 60 kph estimated without the aid of the speedometer which was not working. There was evidence from at least two experts that 60 kph was too fast a speed to attempt the manoeuvre. Mr Vaughan's opinion was that a safe speed would have been 30 to 40 kph.

10 I need to say something more about the roadway at the accident scene. In the vicinity of the intersection with Crooked Lane the sealed pavement consists of two lanes, one in each direction divided by a broken centre line. The westbound lane was 3.2m wide. A bitumen slip lane was constructed in the vicinity of the T intersection on the southern side of the Bells Line of Road. This was about 2.0m wide commencing 30-40m before the intersection and tapering off to the west of the intersection to 1.8m. The slip lane all but disappeared about 25m past the intersection. Adjacent to this slip lane was a gravel earthen shoulder about 0.6m wide. Next to the shoulder was a ditch or depression which ran parallel to the road.

11 From the edge of the ditch to the broken centre line of the road was a total distance of 5.8m. Adjacent to the ditch were properties which had access to the road over the ditch. The access of the second defendant was via a gravel entry over the ditch. This access had existed since before 1962. In about July 1989, the second defendant caused a drainage pipe to be constructed in the ditch in the vicinity of the gravel access to the property. This pipe was struck by the truck when it left the road to perform the overtaking manoeuvre. The pipe was located about 17 to 18m west of the centre projection of Crooked Lane in the Bells Line of Road. The overall width of the truck was 2.5m and it was 17m long. The stationary car which was waiting to turn right into Crooked Lane was estimated to be close to the centre line and had a width of 1.9m or less.

12 Thus it can be seen that there was sufficient space for the truck to have passed the stationary car on its near side by travelling partly on the remaining space on the lane proper and partly on the slip lane. This is without taking account of the available road shoulder. It was the opinion of Mr Vaughan that the roadway was sufficiently wide to allow for the truck to safely pass provided an appropriate speed was chosen, viz 30 to 40 kph. His Honour accepted Mr Vaughan's opinion.

13 However, the truck drove partly off the roadway proper into the ditch and travelled with its left wheels along the ditch in order to manoeuvre around the stationary vehicle. This was an unnecessary manoeuvre and meant that the truck was travelling on an uneven surface punctuated by property accesses such as that of the second defendant. It is because the truck was travelling partly off the road and in the ditch that it collided with the pipe, causing the driver to lose control. The driver's attempt to perform the manoeuvre at an inappropriate speed given the circumstances, partly utilising the unmade ditch, was the direct cause of the accident. It is over simplistic to ignore the driver's path of travel off the road proper and along the ditch and submit, as the appellant does, that the cause of the accident was the pipe.

14 If the truck driver had slowed to a reasonable speed and passed the stationary vehicle using the available road pavement, or even the road shoulder, he would have been able to safely return to his lane. It was by travelling too fast and utilising the ditch, which was not part of the roadway, which caused the accident. If the driver had not driven in the ditch, he would not have struck the pipe.

15 His Honour said:

It is clear to me from these photographs and from the evidence that Mr Cattell allowed his nearside wheels to go, not only onto the dirt shoulder beyond the left hand edge of the bitumen slip way, but actually down into the bottom of the drain itself. In my view it is clear beyond question that Mr Cattell was responsible for this collision. He drove far too fast for the conditions. He allowed the nearside wheels, as I have said, of his rig to go down into the bottom of the drain, which meant that he lost his ability to steer the vehicle out of it.

16 These conclusions were not only in accordance with the evidence, they were plainly correct.

17 His Honour noted the evidence of Mr Joy, who prepared an expert report on behalf of the appellant, that to attempt the manoeuvre in question would require particular caution and that 60 kph was too fast a speed to attempt such a manoeuvre. Of this evidence his Honour said:

... In my view that concession was a statement of the overwhelmingly obvious, it must have been obvious to any sensible person in that situation at that time that it was a hazardous manoeuvre in the extreme to attempt to pass a stationary vehicle in the position of the beige vehicle on such a narrow strip of road in such a large vehicle of about twelve and half tonnes at a speed even approaching 60 kilometres per hour.

18 As I have said, his Honour accepted the expert evidence of Mr Vaughan. That is that if Cattell had been travelling at an appropriate speed (30 to 40kph) he could have safely passed the waiting vehicle without risk. There was very probably sufficient roadway width for him to do so. If Cattell had not travelled with his left front wheel along the drainage ditch, there would have been minimal risk of the collision occurring.

19 An attempt was made by the appellant to minimise or reduce the truck driver's level of culpability so as to obtain a contribution from the second and third respondents, should they, or either of them, be found to be liable. One such attempt was to say that admissions made by the appellant's driver after the accident should not have been admitted as against the appellant. Two observations may be made about this. First, the evidence was not objected to by counsel for the appellant appearing at the trial. Second, the evidence was probably admissible under the Evidence Act, 1995.

Liability of the second and third respondents

20 The appellant's case against the landowner was that it was negligent to have placed the pipe at a point both near the road and where the slip lane had almost ended. It was foreseeable that a vehicle passing on the near side of vehicles turning right into Crooked Lane would collide with the pipe. Further, the pipe had been placed there without approval and without any warning to mark its presence. It is submitted that it was the truck striking the pipe which caused the fatal accident.

21 His Honour's reasoning was that the pipe was not placed on any portion of the roadway, or the slip lane. The pipe was installed along the line of the drain which ran parallel to the shoulder of the road. In making these findings of fact, his Honour was clearly correct. His Honour continued by saying that in no sense could the pipe be regarded as part of the road itself. Again, I think that that is right.

22 There was no formal evidence of what constituted the road in question and there is no definition in the State Roads Act 1986. A road is usually constructed within a road reservation. The road will usually be owned by its controller, a local authority or the RTA. In this case, although there was no formal proof, it appears to have been accepted that the road was controlled and owned by the third respondent. There was also no evidence of where the property boundary was located between the road and the land of the second respondent.

23 In my view the likely situation is that the road comprised the two-lane bitumen surface, the slip lane and the road shoulder. The ditch was not part of the road. Therefore, the pipe was not constructed within the road.

24 His Honour said that he was not convinced that the second respondent was negligent in placing the pipe where it did - that is, off the roadway and road shoulder. His Honour also said that he did not think that it would have been reasonably foreseeable that anyone would drive a vehicle in the ditch and collide with the pipe. Finally, the judge held that the pipe was not causative of the accident.

25 There was no clear evidence or enunciation of the approval requirements for the pipe. Indeed, whether any approval was in fact required. Thus, while the second respondent did not seek or obtain any approval, it is not obvious what approval the second respondent needed, given that it had had driveway access to the road since prior to 1962. Also, the matter is complicated by the absence of evidence as to who is the owner of the land on which the pipe was constructed. It may well be that it is on the second respondent's land.

26 I do not think that this court should disturb his Honour's finding that he was not satisfied that the second respondent's placing of the pipe in the ditch constituted a negligent act. As to foreseeability, it may be that his Honour applied the incorrect test and the so-called undemanding test of foreseeability was met. However, it matters not because his Honour was clearly correct on causation. There was simply no causal connection between the presence of the pipe in the ditch and the fatal accident. It is plain that the direct cause of the accident was the manner in which Mr Cattell drove the truck.

27 Mr Cattell attempted to manoeuvre his truck past the stationary car on its left at a speed which was excessive in the circumstances, and did so by travelling partly off the road and shoulder in the ditch where the pipe was located.

28 In my opinion, his Honour was correct to find that the second respondent was not liable to the plaintiff.

29 The appellant's case against the RTA was twofold. First, that its construction of the slipway was inadequate for the purpose and that it was contrary to relevant engineering guidelines. The overtaking area in the slipway was inadequate. Further, the slipway, as it was constructed, constituted an invitation to drivers to take a dangerous course.

30 His Honour's conclusion was that it was not foreseeable to the RTA that vehicles would seek to travel off the roadway in the ditch. In addition, his Honour said that it was not any defect in the construction of the slipway which caused the accident. His Honour accepted expert evidence that the slip lane was adequate even for a semi-trailer provided a driver was taking adequate care and travelling at an appropriate speed. There was no causal connection between anything the RTA did, or omitted to do, in relation to the construction of the slipway, and the fatal accident.

31 I think that the evidence supports his Honour's findings. The expert evidence led about the slipway makes it apparent that there was adequate space for a vehicle of the size and length of the appellant's to safely pass a stationary vehicle on the left if the driver took reasonable care and drove at an appropriate speed. There was no need for Cattell to drive the truck partly off the roadway surface (including off the shoulder) and utilise the drain adjacent to the road. The roadway itself did not present an invitation to the driver of the truck to leave the road and travel partly through the ditch.

32 His Honour was in my view correct to conclude that there was no causal connection between the acts or omissions of the third respondent and the accident. Accordingly, his Honour was entitled to find a verdict in favour of the RTA.

33 It follows that the appeal on liability should be dismissed.

The appeal on quantum

34 The verdict of $901,814 in favour of the plaintiff and the two children was made up as follows:

(a) Past loss of benefit from the accident

to trial, a period of 12 years $387,690

(b) Future loss of benefit while children

remained dependant $232,224

(c) Future loss of benefit for plaintiff after

children cease to be dependant $ 63,633

(d) Past handyman assistance $ 25,653

(e) Future handyman assistance $ 30,114

(f) Loss of value of future accumulation of assets

by the deceased $ 60,000

(g) Funeral expenses $ 2,500

(h) Future loss of earnings by plaintiff due to death

of deceased $100,000

35 All of the above items are challenged except for funeral expenses.

Past and future loss of benefits

36 Central to the appellant's criticism of his Honour's judgment is the contention that the deceased's pre-tax earnings in the last full year taxation return was $15,570. The appellant argues that the loss of benefit should have been calculated by reference to that figure after deduction of tax and the deceased's personal expenditure. His Honour however chose to accept the first respondent's evidence that the family `lived out of the business' taking about $100,000 per annum for the purpose of the family living, including the salaries shown in their income tax returns. This led his Honour to attribute an income of $50,000 per annum to the deceased.

37 The appellant submits that his Honour was wrong to do so because the first respondent's evidence was not confirmed by any document and was inconsistent with the taxation returns. It was unrealistic for his Honour to accept the evidence of the first respondent since she was a person who defrauded the revenue. To find that the first respondent was `apparently honest' was, so it was submitted, to misuse the advantage of a trial judge.

38 Mr Hislop submitted that on public policy grounds the court below should have had no regard to any claim of income above that disclosed in the tax return. No authority was cited to support this proposition.

39 The appellant also submits that his Honour was in error because the funds (over and above the disclosed income) were the property of the company and the deceased had no legal interest in the company. It is true that the deceased had no legal interest in the company. The company was owned by the first respondent and her brother-in-law. However, the reality of the situation is plain. The company was the vehicle for the family business. The deceased was the principal worker and manager of the family business. He worked extraordinarily long hours, at least 80 hours per week. While his wife worked in the business, she was reducing her hours, especially after the birth of the children in 1987 and 1988. The deceased ran the family business and had two full time employees and casuals. The first respondent desired to ease out of working other than part time in the business because she wanted to have more children.

40 The question arises as to whether the trial judge was entitled to accept the evidence of the first respondent about the drawings of $100,000 per annum from the business and the family's living out of the business when the documentary evidence was to the contrary. Indeed, it seems that the first respondent conceded that the taxation returns did not represent the true earnings of the company or the deceased.

41 Of the first respondent his Honour said:

... The plaintiff does not seem to have been a woman who gave a great deal of thought to the legal structure of the business arrangement between she and her husband. Initially she was a sole trader and according to the books the deceased was an employee of the business earning a wage. Sometime before the deceased's death, it appears only perhaps months before the deceased's death, there was an incorporation of a company Grada's Garden Pty Limited. The plaintiff, when asked about this, thought that she and her late husband had shares equally in this company but the true position appears to have been that there were 100 issued shares in it of which she had 99 and her brother-in-law, one share.

The plaintiff said in evidence that a lot of records, particularly the records in relation to the deceased before the business began, have been misplaced, and that once the deceased came into the Grada's Garden business he came in a partnership role even though the books showed him as an employee for tax purposes.

42 His Honour considered that the reality of the situation was that the deceased and the first respondent were in a family partnership together. This was so even though the books showed the deceased as an employee. The business continued to function as a working partnership after incorporation. The real situation was that the husband and wife pooled their joint incomes from the business for the benefit of the family.

43 In accepting the first respondent's evidence of drawings of about $100,000 per annum from the business, part of which was undeclared, his Honour said that he found the plaintiff to be `an apparently honest woman and I have no reason to doubt her evidence in that respect'.

44 The appellant is critical of his Honour for this statement. As I have said, it is submitted that the judge misused his advantage as the trial judge.

45 It seems to me that his Honour was in the best position to make an assessment of the credibility of the first respondent's evidence at the trial. She gave evidence at some length and was cross-examined, in particular about the financial situation of the business. It was obvious to the trial judge that the first respondent had participated with the deceased to conceal the true earnings of the business, including the misstatement of the income of both the plaintiff and the deceased, from the Commonwealth. Indeed, the first respondent conceded that the tax returns did not represent the true position.

46 But this did not mean that his Honour was bound to reject the first respondent's evidence about the drawing of about $100,000 per annum out of the business for the family's expenses of living.

47 His Honour was not bound by the tax returns, nor was he the prisoner of any supposed principle which says that if a person understates his or her income to the Commonwealth, that person cannot recover in a civil claim any more than the stated figure in his or her tax return. The task of his Honour was to assess what the true position was and, in so proceeding, he had the taxation evidence pointing in one direction and the evidence of the first respondent, which sought to explain what actually occurred.

48 In addition to the taxation returns and the plaintiff's evidence, his Honour had other evidence which supported the evidence of the first respondent corroborating her claims as to what actually occurred with the business takings and income. For example, there was the evidence of Paul Bouchier, brother of the deceased. His evidence lent some corroboration to an annual turnover of the business being in the vicinity of $600,000.

49 Some of the documentary evidence also lent support to the first respondent's evidence about $100,000 per annum being drawn from the business. For example, it seems that the declared income for 1987 was $27,000 for the deceased and $44,000 for the first respondent, a total of $71,000. Given the evidence of the work performed by the deceased in the business, as compared to that of the first respondent at that time, a more realistic and reasonable break-up would be $50,000 to the deceased and the balance to the first respondent.

50 $50,000 per annum was also not unreasonable if the deceased had left the business and resumed work as a builder, his former trade and employment. Given his undoubted work ethic, energy and drive, his Honour was entitled to conclude that if the deceased left the garden business, he would likely earn $1,000 per week gross as a carpenter, indeed more.

51 His Honour's approach in accepting the reality of the business is consistent with that of the High Court in Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 at 147 - 149 regarding the assessment of lost earning capacity. In the joint judgment the following was said:

20. There are two critical elements. First, the whole of the income of the partnership came from the efforts of the appellant and the exploitation of his earning capacity. As a matter of practical reality, his wife's contribution to the income was negligible. Secondly, the partnership was a partnership at will. The appellant would very probably have chosen to maintain those arrangements but that was his choice. If he chose to make some other arrangement concerning the fruits of his labour, effect would be given to that choice, whatever view his wife may have held. What the appellant would have had under his control and at his disposal but for the accident was, therefore, the whole of the fruits of his skill and labour. And it is, then, the whole of those fruits that he has lost.

52 The court stressed the importance of the facts in each case. Their Honours said:

23. Deciding what value is to be ascribed to the loss of future earning capacity of an injured plaintiff requires close attention to the facts of each case. The task is not one to be undertaken by seeking to classify cases as concerning "sole traders" or "partnerships" or "wage-earners" or "trading trusts", and then attempting to deduce some rule of general application to all cases failing within the classification thus devised. Rather the inquiry is about what could the plaintiff have done in the workforce but for the accident and what sum of money would the plaintiff have had at his or her disposal.

53 In my opinion, there is no reason why the approach of the High Court in Husher, based on the particular facts of this case, should not be extended to corporations.

54 In my opinion his Honour was entitled to look to the realities of the situation. In this case the reality was that the business was a family partnership to which the deceased contributed the lion share. His Honour was not obliged to confine himself to the tax returns in assessing the deceased's pre-accident income. He was obliged to consider the evidence as a whole, including the first respondent's oral testimony.

55 It was also submitted on behalf of the appellant that his Honour made no allowance for the possibility that back taxes, penalties and interest might be charged by the Taxation Office.

56 In McIntosh v Williams [1976] 2 NSWLR 237 at 245 Moffitt P considered that the chance of discovery of undisclosed earnings and the imposition of back taxes and penalties was a contingency which should have been allowed for in the assessment of damages.

57 In this case the trial judge reduced the figure of $1,000 per week gross by the applicable tax to a net figure of $635 p.w., back dated to the accident. The judge allowed a 10% reduction for contingencies. He did not specifically include the adverse contingency relating to possible back taxes and penalties. I do not see that this matters. If the Commonwealth believes that it has cause, it can proceed against the estate of the deceased and the first respondent and seek the payment of any back tax and imposition of penalties. If this occurs, those amounts will be liable to be paid. It seems to me that the contingency allowed was sufficient to include the possibility of successful action by the Taxation Office.

58 In giving reasons his Honour made it plain that he was seeking to compensate the first respondent and the children for the loss of her husband's income which she suffered `as a wife' and not as a business partner.

59 An attack was also made on the allowance made by his Honour for personal expenses of the deceased. His Honour found that the deceased had very modest personal spending habits. He had little time for personal spending and was not extravagant. His Honour selected a dependency percentage for the first respondent and two children of 77.5% in accordance with Professor Luntz's tables. Hosking DCJ added that he had little doubt that the deceased spent only about 25% of his real earnings on himself, adding `if that'.

60 The appellant drew attention to a portion of the evidence of the first respondent wherein in cross-examination she said that her husband could spend his income on whatever he liked and that he did. I do not see that this evidence amounts to any more than that the deceased could have spent any part of his income on himself and did in fact spend some part of it on his own personal expenses. This portion of the evidence should not be construed as meaning that the deceased spent the whole of his income on himself. I accept his Honour's assessment of the particular evidence. Properly understood and considered in its context, the evidence is hardly inconsistent with his Honour's findings, which were reasonable and well and truly available.

61 In addition, criticism was made of the judge's allowance for an increase in the income of the deceased between 1989 and the trial in 2001. His Honour allowed an increase of 38% based, it seems, upon movements in the Consumer Price Index over the period. It is submitted that this was not open to his Honour especially given a recession in the flower industry in 1991.

62 In my opinion, it was legitimate for his Honour to rely on movements in the CPI and it is not suggested that they were other than in the order of the percentage his Honour selected.

63 In any event, his Honour's assessment was not based just on the plant business that the deceased was engaged in, but also took account of the possibility that he might resume work as a builder. I can see no error in his Honour's approach to this aspect of the quantification of damages.

64 The next line of attack was upon his Honour's selection of 10% for contingencies. It is submitted by the appellant that there was no basis for reducing the figure below the conventional 15%. In particular, his Honour should have made allowance for the respondent's prospects of remarriage or the possibility of marital breakdown. The possibility of marital breakdown was however never put below.

65 His Honour assessed the prospects of the first respondent remarrying as `relatively slim'. This was not an unreasonable conclusion given that she had not remarried in the 12 years between the death of her husband and the trial. She was then 45 years of age and had two children aged 12 and 13 years. Also, there was no evidence of any likelihood of remarriage. Even if she did re-marry, who is to know if it would be to her financial benefit.

66 In De Sales v Ingrilli [2002] HCA 52 Gaudron, Gummow and Hayne JJ said in their joint judgment:

77. Nor can the prospect of remarrying or forming a new relationship properly be seen as a matter which, under the general heading of "the vicissitudes of life", enlarges the discount which otherwise must be made from the present value of the benefits which the deceased was providing at death. The assessment of that discount is not easy. It must reflect not only the fact that the future may have been better than the past but also the fact that it may not. It is wrong to fasten upon one of the myriad possible paths that life may take and say that, on account of that possibility, it is right to enlarge the discount that must be made. The discount can be assessed only as single sum which reflects all of the possibilities.

And,

79. Ordinarily, such cases apart, no separate allowance should be made for the possibility, even probability, that a new relationship will be formed. That is because it cannot be said, even on the balance of probabilities, whether, having regard to the whole of the period which must be considered, that relationship would be to the financial advantage or disadvantage of those relatives of the deceased for whose benefit the action is brought.

67 Their Honours mentioned that the deceased's earnings may have improved over time but that was but one aspect of a range of possibilities, some fortunate and some not, which must be taken into account in estimating the extent of the pecuniary loss suffered in consequence of the death.

68 I can discern no error in his Honour's approach or in his conclusion that a 10% contingency was appropriate.

Assessment of loss of benefit

69 As already mentioned his Honour chose a dependency percentage figure of 77.5. This is attacked as erroneous on the basis that it is applicable where a family consists of one breadwinner, a spouse and two children. Here the first respondent was deriving income from the business and was contributing significantly to the family funds.

70 It has often been acknowledged that valuing the chance of the loss of some material benefit from a deceased had he lived is notoriously difficult, and that mathematical accuracy is impossible, eg Phali v Commissioner for Railways [1964 - 1965] NSWR 1545 at 1547. Because of the hypothetical nature of the exercise, arithmetic can at best be only a guide, Gullifer v Pohto [1978] 2 NSWLR 353 at 364 - 365.

71 When the evidence is examined it is obvious that the principal breadwinner was the deceased. There were not equal contributions to the available family funds by him and his wife. The reality was, as found by his Honour, that the majority of the income was derived from the efforts of the husband. Moreover, the first respondent was withdrawing from a working involvement in the business after the birth of the children and it was her intention not to work full-time in the business in the future because she had planned to have more children. The deceased was running the business with the aid of full-time staff. Had the accident not occurred it is likely that this situation would have continued with the involvement of the first respondent decreasing over time.

72 There is no requirement to adopt a percentage lower than 77.5 simply because the deceased is not the sole breadwinner in a family. Luntz makes this plain (pp 500 - 501, 4th Edition). Again, I can see no error in his Honour's selection of the percentage of dependency.

73 The appellant also seeks to make the point that the death of the deceased did not affect the gross sales of the business according to the records. I am unable to see the significance of this to the issue of the deceased's financial contributions to the family. In any event, there would be a set-off against the turnover post death by reason of the need to employ additional staff to replace the deceased.

74 The appellant further submits that there was no evidence that the deceased had any intention to return to the building trade. However, this was not the case and the first respondent gave evidence of her husband's possible intention, see Black AB 26.

Handyman services

75 The appellant challenges the award of $2,000 per annum from the time of death of the deceased for the remainder of his life expectancy, reduced by 10% for vicissitudes. The trial judge allowed $25,653 between death and the trial and $30,114 for the future. It is argued that such an award, of less than 6 hours per week, is impermissible under the Motor Accidents Act 1988. However, s 72 of that Act does not apply to a claim for loss of services provided by a deceased to his family. It is not a Griffiths v Kerkemeyer claim. There is ample authority for the benefit to include the value of services which the deceased would have provided around the home, see Luntz at 505, footnote 169 and also at 492. Such gratuitous services may be claimed as a loss of benefit. The 6 hour per week threshold in s 72 is inapplicable to the claim.

Accumulation of assets

76 The appellant challenges his Honour's allowance of $60,000 for the loss of opportunity of the first respondent to receive future assets from the deceased if he had survived. In so finding his Honour took into account the receipt by the first respondent of the deceased's share in a property he had owned with his brother. The appellant submitted that there was no evidence of any savings of the deceased likely to lead to an accumulation of assets which would have been passed onto his family.

77 There was evidence that the deceased had accumulated assets prior to his death and there was evidence supporting the inference that he had the ability to accumulate assets over his life. He was frugal and when the children grew up, he would not have to support them. He would likely then have increased financial resources available to invest in assets. In arriving at the figure of $60,000, his Honour took account of the accelerated benefits received by the first respondent on account of the Strathfield property.

Personal loss of earnings

78 Lastly, the appellant attacks his Honour's allowance of $100,000 for the loss of the first respondent's own earnings caused by the death of the deceased. The appellant submits that such a claim is not maintainable under the Compensation to Relatives Act. It seems to me that there may be circumstances in which such a claim may legitimately be made under the Act. For example, if a working wife has to give up work to look after children previously cared for by a non-working house husband. However, that is not the case here.

79 His Honour's approach to this aspect of the claim was as follows. The first respondent maintained that after the death of her husband she was unable to maintain her income at the level it was when her husband was alive. His Honour said that it was very difficult to quantify this loss. It depended on the first respondent showing that her earnings were substantially less than they would have been had the deceased lived. It was made more difficult by the understatement of her true income position in the tax returns.

80 After attempting to find support for the claim in the tax returns, and finding only a little inconclusive evidence, his Honour said:

Doing the best I can it appears to me that the plaintiff has herself suffered some loss of earnings because of the death of her husband independent of her dependency on him from his own earnings. ...

Mr Donovan has sought damages of more than $400,000 under this head, but I am not prepared to allow a sum of anything like that because, in my view, it is simply too speculative to do so, however I do accept that the plaintiff herself has suffered losses because she no longer has her husband to work with, in addition to his actual loss of financial support. I also accept that this loss has been ongoing, although I am quite unable to quantify the likely amount of it. I propose allowing, as Mr Donovan called it, an unquantified sum of $100,000 for this loss which I think is no more than is reasonable compensation for this undoubted but unquantifiable loss. If this figure is any way in error I suspect that that is so because $100,000 tends to be on the conservative side.

81 On my examination of the material before the trial court, there is little or no evidence to support the claim for loss of benefit. It was, in my opinion, no more than speculative. The claim ought to have been rejected by his Honour. If any inferences were available, they pointed equally to the proposition that the first respondent's earnings were not, post death, less than they would have been had the deceased survived.

82 It follows from the above that the verdict of $901,814 should be reduced by $100,000 to $801,814, apportioned as to $595,176 to the first respondent and the balance $206,638 for the children. The variation in the verdict should not affect the appropriate order for costs of the appeal, which should be paid by the appellant. The appellant lost on liability and succeeded on only one issue of damage.

Orders

83 1) Appeal on liability dismissed.

2) Appeal on quantum of damages allowed in part.

3) Appellant is to pay the costs of the appeal.

4) Judgment and verdict of the trial judge be set aside and there be substituted a verdict for the first respondent in the sum of $801,814, apportioned as to $595,176 for the first respondent and the balance of $206,638 for the children.

5) The orders for costs made by the trial judge should not be disturbed.

84 HEYDON JA: I agree with Stein JA. In relation to the admission made by the appellant's driver, apart from written submissions to the effect that the admission was inadmissible, counsel argued orally that even if it was admissible, the driver's distressed condition meant that the admission should not have been "used as part of the matrix of facts going to negligence" and the trial judge should not have given the admission "the weight that he appears to have given it". However, the admission was a piece of evidence to be weighed with all the other evidence. No appellable error in the trial judge's reliance on it has been demonstrated.

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LAST UPDATED: 07/02/2003