Andersen v State of South Australia

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
ANDERSEN & ANOR v STATE OF SOUTH AUSTRALIA & ORS
[2010] SASCFC 20
Judgment of The Full Court
(The Honourable Justice Sulan, The Honourable Justice Anderson and The Honourable Justice Layton)
5 August 2010
CRIMINAL LAW - PROCEDURE - CRIMINAL INJURIES COMPENSATION - SOUTH AUSTRALIA - GENERALLY
DAMAGES - GENERAL PRINCIPLES
ORDERS FOR COMPENSATION - FINANCIAL LOSS - LIMITATIONS TO COMPENSATION FOR FINANCIAL LOSS - OFFSETTING BENEFITS OBTAINED INDEPENDENTLY
Appellants appeal against a decision of District Court judge dismissing an application under the Victims of Crime Act for compensation for financial loss arising out of the death of their father - whether payments made by the State to foster carers of the appellants and for other payments should be offset against compensation for the financial loss suffered - whether trial judge correctly calculated financial loss suffered by the appellants as a result of the death - appeal dismissed.
Victims of Crime Act 2001 (SA); Criminal Injuries Compensation Act 1977 (SA); Children's Protection Act 1993 (SA), referred to.
Pulic Trustee v Zoanetti (1945) 70 CLR 266; National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569, applied.
Nguyen & Ors v Nguyen (1989-1990) 169 CLR 245; Trace v South Australia (1986) 132 LSJS 437; Manser v Spry (1994) 181 CLR 428; Haines v Bendall (1991) 172 CLR 60; Parry v Cleaver [1970] AC 1; Boyle v Morshead (1982) 33 SASR 1; Zheng v Cai (2009) 239 CLR 446, considered.

ANDERSEN & ANOR v STATE OF SOUTH AUSTRALIA & ORS
[2010] SASCFC 20
Full Court: Sulan, Anderson and Layton JJ
THE COURT
Introduction

This is an appeal by two infants (“the appellants”) by their Next Friend from a decision of a District Court judge who concluded that they were not entitled to a payment of compensation pursuant to s 20(1)(b) of the Victims of Crime Act 2001 (“the Act”). The appellants sought compensation for financial loss arising out of the murder of their biological father. The judge found that payments made by the State for foster carers and other services should be offset against any financial loss and therefore there was no compensation payable. It was submitted that the judge erred in his approach both with respect to his interpretation of the Act and to the assessment of compensation awarded for their financial loss.
Section 20(1) of the Act provides:
20—Orders for compensation
(1)Subject to this Act, on an application for statutory compensation, the court may order—
(a) that the victim be paid by the Crown such amount as the court thinks fit by way of compensation for the injury arising from the offence; or
(b) that the dependants of a dead victim be paid by the Crown such amount as the court thinks fit by way of compensation for the financial loss suffered by them (to be proportioned between the various claimants as the court thinks fit); or
Sub-section 20(3)(a)(iii) provides for a maximum of $50,000 to compensate the dependants for their financial loss or the aggregate of financial and non‑financial loss. The $50,000 is the maximum to be apportioned regardless of how many dependants there are.
It was not disputed that the appellants were dependants of the deceased and are therefore prima facie entitled to receive compensation for their financial loss, but it was argued that the judge wrongly applied s 20(1)(b) when he deducted the amounts paid by the State for foster carers and for other services provided to the appellants.
The first issue to be determined by the Court is whether the trial judge correctly calculated the financial loss suffered by the appellants consequent upon the loss of their father. This involves a consideration of whether he wrongly excluded domestic services provided by the deceased. It was correctly conceded by the respondent that the judge erred when he excluded those services. The issue remaining is whether payments made by the South Australian government to the appellants’ foster carers and for other services provided to the children may be offset against any financial loss. That will involve an estimate of what the deceased’s financial contribution would have been but for his death, and whether both the loss to date and the future financial loss for the appellants was correctly assessed.
For the reasons which follow, the Court would dismiss the appeal. The Court concludes that the total compensation of $50,000 to which the appellants would otherwise be entitled is to be offset against payments made by the State of South Australia for the care provided to the appellants until they are 18 years of age. Because those payments, however calculated, exceed the maximum of $50,000, no compensation is payable. The reasons are as follows.
Background facts
On 26 January 2005 Robert Andersen (“the deceased”) was murdered. He was set on fire and burnt to death in the grounds of a suburban hotel by his former partner, Vicki Yvonne Brooks and her then partner, Dennis William Childs. Both Ms Brooks and Mr Childs are currently serving a life sentence for murder. The appellants are the biological children of the deceased and Ms Brooks.
The deceased and Ms Brooks separated some ten years before he was murdered. Ms Brooks had custody of the appellants until some time shortly after the murder. The deceased had been granted access to the appellants on alternative Saturdays. Some three and a half months after the murder, on 13 May 2005 Ms Brooks was taken into custody. The appellants were placed in alternative care by the Department of Families and Community Services. Since 5 February 2007, both appellants have been subject to orders placing them under guardianship of the Minister for Family and Community Services until they attain 18 years of age.
At the time of the murder the children were aged 9 and 10 and they are now 14 and 16. Since 4 July 2005 they have been in foster care or other carer arrangements and their respective carers have received regular payments from the Department.
At trial it was contended that after Ms Brooks and the deceased separated, the deceased had been providing regular financial support to the appellants and that he continued to do so up until his death. The appellants were unable to quantify the exact amount of financial assistance that they had received over the years.
A number of witnesses testified as to the financial contributions made by the deceased to the appellants during the course of his life. Ms Bishop, the deceased’s sister, gave evidence that she had observed the deceased make contributions to the appellants’ welfare by purchasing clothing and giving the appellants gifts and money over the years. Ms Andersen, the deceased’s daughter, from time to time saw the deceased give money to Ms Brooks for the maintenance of the appellants of $100 or more.
Ms Brooks gave evidence that the deceased contributed nothing for the maintenance of the children. Child support payments were collected from the deceased. Most of the payments were made in 2003 and 2004, when he was working.
Evidence as to the remuneration received by the carers was very vague. Each appellant was placed in a combination of alternative care by the Department and home-based care as discussed later in these reasons.
The Court heard evidence from Mr Chi-Sing-Wong, an employee of the Department’s foster placement services. He gave evidence about the placement of the appellants on the Life Without Barriers Program which provides them with psychological treatment and support and provides some support for their carers. Mr Wong anticipated that the appellants would remain in that program until they reached the age of 18.
The reasons of the trial judge
In assessing the compensation to be awarded under s 20(1) of the Act, the trial judge said at [8]:
[8]The issues that ultimately fell to be determined were whether the deceased was providing financial support for the plaintiffs and, if so, to what extent, and whether the subsidies payed (sic) by the Department for the care of the plaintiffs and the costs of the departmental residential care ought to be taken into account in determining whether they have in fact suffered financial loss as a result of the murder.
With respect to the deceased’s financial contributions, the trial judge preferred the evidence of Ms Bishop and Ms Andersen. He concluded:
[16]… I thus find that the deceased was making financial contributions towards the maintenance and welfare of the plaintiffs at the time of his death and that he had done so since he and the second defendant separated. Accordingly, I find that the plaintiffs were financially dependent on the deceased to some degree at least.
Counsel for the appellants at trial, submitted that the loss of financial support from Ms Brooks, one of the convicted murderers, was directly attributable to the death of the deceased and thus formed part of the overall financial loss suffered by the appellants arising out of the murder and accordingly that the loss was compensable under s 20(1). The Judge rejected this contention. He concluded at [48]-[49]:
[48]... the VCA is silent on the question of whether the loss of financial support from the offender can be taken into account in determining the financial loss suffered by the dependants of someone who is killed in the commission of an offence.
[49]Section 20(1)(b) of the VCA does not, by its terms, expressly exclude any loss of financial support provided by the offender. Nor does it, either expressly or by necessary implication, disclose an intention by Parliament that the loss of financial support from the offender is to be taken into account in determining the overall financial loss. However, its terms are more apt to disclose in (sic) intention to provide compensation limited to loss of financial support which had previously been provided by the dead victim.
The judge dealt with possible contingencies before quantifying the financial loss to the appellants arising out of the death of the deceased. The judge concluded that the deceased would have provided some continuing financial support to the appellants after they turned 18, but made only a small allowance for this contingency. The judge made a modest allowance for the possibility that the deceased might have eventually obtained custody of the appellants.
Further allowance was made on account of child support payments which would likely have continued at the minimum rate of $12 per week, but the judge was not prepared to find that these payments would have been paid on a regular basis. He made no allowance for the contingency that the Child Support Agency might have required the deceased to pay more by way of child support in the future.
In considering damages for the loss of domestic services, the judge concluded that loss of domestic services should not be included within a calculation of financial loss. The judge concluded at [60]:
[60]Although “financial loss” is not defined by the VCA the terms of s 20(b)(4) make it plain that Parliament intended to limit compensation under s 20(b)(4) to financial loss arising out of the death. Thus if Parliament had intended that loss of domestic services was to be taken into account in determining financial loss one would have expected it to say so in clear and unambiguous terms and an intention to declare that loss of services are to be taken into account in this way does not arise by necessary implication. The submission must be rejected.
As indicated earlier in these reasons, the respondent properly conceded that the judge erred in not taking account of domestic services: see Nguyen & Ors v Nguyen (1989-1990) 169 CLR 245 at 247 per Brennan J.
When quantifying the loss, the judge adopted a broad brush approach given the imprecise nature of the evidence. His Honour concluded that it was reasonable to assume that the deceased purchased clothing and presents for the appellants, and gave money to Ms Brooks for the benefit of the appellants. He determined that the deceased had been making financial contributions towards the maintenance and welfare of the appellants for quite some time and that he would have continued to do so after the time of his death.
The judge concluded that the deceased would have been contributing around $80 per week towards the maintenance and welfare of both appellants ($40 each), which included the cost of the clothes he purchased for them and the presents he gave them.
In determining the question of whether the departmental payments should be taken into account in an order for compensation under the Act, the judge relied on the decision of Trace v South Australia (1986) 132 LSJS 437. That case was an application for compensation brought by the children of their murdered mother under the provisions of the now repealed Criminal Injuries Compensation Act 1977, with reference to similar provisions in the Wrongs Act 1936 (SA). The judge referred to the following passages taken from Trace at pp 442 and 443, in his reasons at [55] and [68]:
[55]Clearly, it is the pecuniary loss to the dependants of a deceased person that form the basis of the assessment of damages under sections 19 and 20 of the Wrongs Act. In my opinion the expression “financial loss” in section 7 of the Criminal Injuries Compensation Act carries precisely the same connotation. It follows, therefore, that those cases in which consideration has been given to assessing the pecuniary losses of the dependant or dependants of a deceased person pursuant to the provisions of the Wrongs Act are directly in point in assessing claims for compensation under the Criminal Injuries Compensation Act brought by the dependants of deceased victims of crime.
…
[68]What must be considered in the present case is whether the applicant had a reasonable expectation of benefit, in financial terms, from his mother had she not lost her life. If having regard to what has occurred since her death, he has not suffered any loss in financial terms, then no award is to be made. On the other hand, if, upon the balance of losses and gains being struck, he is found to have lost some reasonably probability of pecuniary advantage as a result of her death, he is entitled to an award to compensate for the loss.
Emphasis added
The judge decided that the approach of the Court in Trace was applicable to the interpretation of s 20(1)(b) of the Act.
The judge concluded at [72]:
[72]Accordingly, any pecuniary benefits which might reasonably have been expected to accrue to the plaintiffs on the death of the deceased must be balanced against the future financial loss which arose as a result of his death. In this regard there is a threshold question of whether there was a reasonable expectation of a benefit which would arise as a result of the death.
The findings made by the judge as to the costs incurred by the State for the care of the appellants are somewhat confusing, but in fairness, so too is the evidence. This is, to some extent, due to the different arrangements which were made for each of the children. The nature of the care given to each of the children included foster care, home-based care with relatives and emergency accommodation. In addition, both appellants were at various times placed on a program called “Life Without Barriers”. The program provides subsidies to carers to provide for food, lodging, domestic services and some other expenditure, which is additional to that which would be paid for long-term foster care. In addition, coordinators of Life Without Barriers program receive subsidies.
Summarising the judge’s findings, without descending into the detail of the payments made for each appellant, the arrangements were as follows.
In relation to the first appellant, Rhys Andersen, he was in foster care from 4 July 2005 until 28 July 2005 and the foster carers were paid subsidies totalling $620. The appellant was then placed in departmental care until 7 August 2008. On that date he commenced living with Mr Andersen and his partner and was on a special Life Without Barriers program. That situation continued until trial. Mr Andersen is the half-brother of the first appellant.
The second appellant, Branden Dunstan, was placed in either foster care or the care of a relative from 4 July 2005 to 15 September 2006 during which period his carers were paid amounts totalling $14,800. He was then taken into emergency accommodation. He then commenced on the Life Without Barriers program in September 2007, and that was his situation at trial.
Carers of children in the Life Without Barriers program receive subsidies of $600 per week or $31,200 per year (which was consistent with the evidence given by Mr Andersen). In addition, co-ordinators of the Life Without Barriers program receive subsidies of $48,200 per annum. Thus, the total Life Without Barriers program amounts to some $80,000 per year.
The judge also found that even if the appellants had not been in the Life Without Barriers program, the cost of foster care alone would have been between $8,840 and $9,800 per year.
In short the cost to the State of providing minimum care, let alone the care which they had through Life Without Barriers, would far exceed the maximum of $50,000 if it is assumed that each appellant would remain in some form of care until they are 18 years of age.
Grounds of appeal
The grounds of appeal are:
1.That with respect to calculation of the financial loss suffered by the applicants as a consequence of the death of their father His Honour erred:
(a)     in determining to make only a small allowance for financial support for the children after they turn 18 and further erred in failing to fix an amount;
(b)     in failing to make an allowance for the possibility that the children may have come into the father’s care at sometime during their lifetime and that consequently his financial contribution may be greatly increased.
(c)     in failing to find the deceased’s financial contribution to the children would have increased in time:
(i)by inflation;
(ii)by increased efficiency of the Child Support Agency.
(d) in finding that loss of domestic services is not for the purposes of the Victims of Crime Act a financial loss suffered by the children and further erred in finding that on the basis of available evidence that the deceased was providing no domestic services to the plaintiffs in any event.
2.That His Honour erred in finding that foster payments made by Families SA to the carers of the children were a financial gain to the children to be offset against the deceased’s financial contribution and in particular erred in failing to find that the need for foster placement was caused as a result of the death of the father not the incarceration of the mother.
In the alternative:
3.If the money paid to foster carers is a relevant financial gain obtained by the children (which is not admitted) then His Honour erred in failing to take into account the loss of the financial contribution made by the mother towards the care of the children prior to her incarceration.
Submissions by counsel for the appellants
Dr Salu, counsel for the appellants, submitted that monies paid or to be paid to the foster carers was a consequence of their mother being incarcerated and was not a consequence of the death of their father. He submitted that if Ms Brooks had not been incarcerated then such payments would not have been necessary, as she would have continued to care for the appellants. He submitted that the payments were not a financial gain to be offset against the deceased’s financial contribution. He also submitted that the cases supporting the offset of compensation in other circumstances are not analogous.

In relation to the calculation of compensation, Dr Salu submitted that there is no evidence that the monies paid by the Government to the foster carers have been spent in the manner found by the trial judge. Although the payment was nominated to be for “provision for food, lodging, domestic services and some other expenditure for each plaintiff” there was no evidence that it was disbursed in that manner.
He also submitted that the judge erred in that he:
·made an inadequate allowance for financial support of the children after they reached the age of 18;
·failed to make allowance for the possibility that the appellants may have come into the deceased’s care at some time during their lifetime and that consequently his financial contribution may have been greatly increased;
·failed to find that the deceased’s financial contribution to the appellants would have increased in time by inflation or the increased efficiency of the Child Support Agency.
Submissions by counsel for the respondent
The respondent relied on the basic principle that the appellants should not be better off financially than if they had not been placed in foster care before the incident: see Manser v Spry (1994) 181 CLR 428. Mr White, counsel for the respondent, submitted that the State has taken over the financial responsibility of that support. He contended that the appellants are receiving, either directly or indirectly, funds which come directly from State revenue. If the circumstances giving rise to compensation and giving rise to payments to carers and associated payments are the same, and the payments are from the same source, that can be described as “double dipping”.
Mr White argued that in determining whether, pursuant to the Act, compensation should take into account the carer’s payments, the issue turns on the character and purpose of payments.
Mr White answered the appellants’ argument by submitting that it was artificial to draw a distinction between the monies which were payable by the State because of incarceration of the mother, from monies payable because the appellants’ father was murdered. It was submitted that the incarceration of the mother, the appellants’ placement into care and the payments by the State, are all direct consequences of the murder which deprived the appellants of their father’s support. It made it impossible for their mother to continue to have their care. It was submitted that the consequences of the offence could not be sensibly separated.
Offset of State Government payments
As we have stated, the main issue in the appeal is whether payments made by the State Government for care of the appellants should be offset against any assessment made as to financial loss sustained by the appellants based on what they would have received from the deceased if he had not been murdered.
(1) The statutory scheme
The issues in the present appeal are to be considered having regard to the nature and purpose of the statutory scheme which provides a mechanism for compensation of financial and non financial losses to victims of crime. It seeks to recognise the harm that victims suffer as a result of criminal offending, to assist in their recovery from the effects of the criminal conduct and to advance victims’ welfare in other ways. The Act provides limited monetary compensation from public funds to those victims most directly affected.
The ambit of the Act extends to compensation for financial loss suffered by the dependants of a deceased victim. It also provides compensation for grief suffered by a deceased’s spouse or partner and the parents of a deceased child. While non-financial loss is defined, financial loss is not.
(ii) Applicable legal principles
In Haines v Bendall (1991) 172 CLR 60 (the majority, Mason CJ, Dawson, Toohey and Gaudron JJ) in considering the general approach to a calculation of compensatory damages, said at page 63:
The settled principle governing the assessment of compensatory damages, whether in actions of tort or contract, is that the injured party should receive compensation in a sum, which so far as money can do, will put that party in the same position as he or she would have been in if the contract had been performed or the tort had not been committed. Compensation is the cardinal concept. It is the ‘one principle’ that is absolutely firm and must control all else.
Citations omitted
There is a further well-established principle that a plaintiff cannot recover more than he or she has lost: see Parry v Cleaver [1970] AC 1 at 13.
It is not disputed by either counsel that the correct approach to be adopted in the calculation of compensation under the Act is the well-recognised principles which are applicable to Lord Campbell’s Act. In Public Trustee v Zoanetti (1945) 70 CLR 266 at 271 Latham CJ summarised the assessment of damages under Lord Campbell’s Act as follows:
It has long been established that in the assessment of damages under Lord Campbell’s Act an account is taken of pecuniary losses and also of pecuniary gains accruing to a particular dependant by reason of the death of a person caused by a wrongful act, neglect, or default of a defendant. Any benefit, whatever its source (whether from the defendant or from some other source), provided that it results from the death of the deceased, must be taken into account. What can be awarded under the Act is pecuniary loss, that is, net loss, on a balance of losses and gains.
There is further support for this proposition in the authorities dealing with assessments made under the former Criminal Injuries Compensation Act: see Boyle v Morshead (1982) 33 SASR 1 where Legoe J said at page 6:
In ordering payment of a sum pursuant to the Criminal Injuries Compensation legislation a court should assess what would be payable according to the principles applicable to an award of damages in a civil suit. See In re Poore (1973) 6 SASR 308 per Bray CJ at p 313, per Hogarth J at pp 315 and 318.
The question of whether an additional benefit to which a plaintiff is entitled is relevant to and whether it goes to the reduction of the damages which a tortfeasor is to pay for the loss or damage caused by the tort was addressed by Dixon CJ in National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 at 573:
There are certain special services, aids, benefits, subventions and the like in which most communities are available to injured people. Simple examples are hospital and pharmaceutical benefits which lighten the monetary burden of illness. If the injured plaintiff has availed himself of these, he cannot establish or calculate his damages on the footing that he did not do so. On the other hand there may be advantages which accrue to the injured plaintiff, whether as a result of legislation or of contract or of benevolence, which have an additional characteristic. It may be true that they are conferred because he intended to enjoy them in the events which have happened. Yet they have this distinguishing characteristic, namely, they are conferred on him not only independently of the existence in him of a right of redress against others but so that they may be enjoyed by him although he may enforce that right: they are the product of a disposition in his favour intended for his enjoyment and not provided in relief of any liability in others fully to compensate him. This is readily seen in the case of benevolence.
Windeyer J observed that such questions must never be decided in abstract and that “each must depend on the terms of the particular contract, pension scheme, charitable benefaction or statute governing the benefit conferred”: see Espagne’s case at page 600 as cited in Manser v Spry (1994) 181 CLR 428 at 436. A more recent decision of the High Court approving and applying Espagne’s case is Zheng v Cai (2009) 239 CLR 446.
The general principle therefore is that a court is required to consider the nature of the benefit which is sought to be set off against a plaintiff’s damages and to inquire whether the person or body supplying the benefit intended that the plaintiff should enjoy it in addition to any damages which he or she might recover.
(iii) Basis of carer’s payments
In this matter the nature of the carer’s payments and their relevant purpose can be ascertained by having regard to the objects of the Family and Community Services Act 1972 (SA) (“FCSA”).
We adopt the reasons of the trial Judge in respect of the overall scheme of the FCSA and also with respect to the Minister’s responsibilities under the Children’s Protection Act 1993 (SA) (“CPA”). At [85]-[86] of his reasons the judge observed:
The objectives of the Minister and the Department include the promotion of the welfare of individuals within the community and the powers conferred to achieve these objectives include the provision of services to assist individuals to overcome personal or social problems, to mitigate the effect of disruption of family relationships or to assist children to overcome any disadvantages suffered by them and by keeping the public informed as to the availability of welfare services. It is also the responsibility of the Minister to establish such programs and facilities for the care or welfare of children as he thinks fit and foster care is a program specifically provided for the FACA. In addition, if the Minister is of the opinion that a child is at risk and that a guardianship order ought to be made in order to secure the care of the child, then he or she may apply to the Youth Court for such an order.
It can thus be seen that it is to be expected that the Department and the Minister will intervene and exercise their respective powers to ensure that any disadvantaged child will be properly cared for.
Citations omitted
Both the FCSA and the CPA make it plain that the schemes are in place to assist families with a variety of social and financial difficulties, including the provision of assistance for single parents. In circumstances where children are suddenly deprived of financial support and domestic services and there is nobody else who is willing or able to step into that breach, the Department is required to intervene and assume responsibility.
While it may be argued that the appellants would not have been put into foster care but for Ms Brooks’ incarceration, it cannot be said that the appellants would not have gained financial support from the Department as a result of the death of the deceased. We reject the submission that the provision of payments to the carers arises solely as a consequence of Ms Brooks’ incarceration. Having examined the scheme for compensation of victims, the applicable legal principles and the basis on which the carers’ payments were made, we now turn to the way in which the judge made his calculations.
The calculation of actual financial loss
From a consideration of the authorities referred to, what is to be assessed is the financial loss suffered as a consequence of the death of the deceased. This requires assessing what the dependants could be reasonably expected to have received from the deceased and then deducting from that amount any reasonably expected gains acquired as a consequence of the death of the deceased. This assessment requires consideration of retrospective as well as prospective features.
The appellants bear the onus of proving the first part of the financial loss which would be likely to have been provided by the deceased to the dependants into the future. The respondent bears the burden of proving any offsetting advantages which the dependants receive as a consequence of the death.
The cases of Zoanetti, Manser and Nguyen in a general sense stand for the principle that if monies are received by dependants in respect of support which may otherwise have been given by the deceased victim, those monies should be deducted in order to avoid double payment. The application of this principle is quite clear insofar as payments made by a government or by a same party is concerned. It is less clear if payments are made by a third party.
The respondent’s argument was that there was at least a payment of $600 per week which should be deducted. It was submitted that it could be inferred that although there was a lack of evidence, it was likely to have been for services referred to by the judge. They submitted that there were processes for the monitoring of monies paid to foster carers. Therefore, it was argued, any monies that could reasonably be expected to have been provided by the deceased were more than covered by the departmental payments after his death. Hence no compensation was payable.
In assessing what monies could reasonably have been provided by the deceased, counsel for the respondent submits that the deceased did not regularly exercise his visitation rights and on that basis, the appellants could expect no more that $30 per week support from the deceased had he not died. The evidence about the provision of domestic services was vague and non-specific. We agree that $30 per week for that support is a generous allowance in the circumstances.
There is no evidence to support a finding that the appellants would have come into the deceased’s care at some time in the future or that he would have continued to provide financial support for them past the age of 18. The deceased had a problem with alcohol. His employment was irregular. In respect of his financial affairs there was uncertainty about his maintaining a regular income. It is most unlikely that he would have ever been able to be the full time carer for his children. The evidence in our view did not support the appellants’ submission that the deceased’s contributions would have increased with inflation. The deceased was not in regular employment. It is unlikely that situation would have improved in the future.
It would appear that the judge has been quite generous with the amount that he assessed insofar as the deceased’s contribution to the appellants is concerned. As the respondent submits, to arrive at a figure of $80 per week was to accept the appellants’ argument at its highest. The amount was likely, in our view, to be somewhat less.
We are satisfied that with regard to payments made to the foster carers of $600 per week the amounts were on balance likely to have been paid in accordance with the Act. Even though there was no evidence as to the actual disbursements, we are prepared to infer that they paid for those living expenses which had previously been paid for by the deceased. The factual situation is that, at best, the deceased was paying $80 per week, but the amount paid to carers for the benefit of the dependants was $600 per week.
Conclusion
In our view, an assessment of financial losses should take into account any financial gains to the appellants as a result of their father’s death. We conclude that pursuant to the Act the judge was correct to take into account the benefits which have accrued as a consequence of the death.
As to the specific items, we conclude that the trial judge was correct in taking into account the subsidies paid by the Department for the care of the appellants and the costs of the departmental residential care in so far as they could remedy the financial loss resulting from the loss of financial support provided by the deceased.
It is clear that the intention of the legislature was to avoid double compensation and that its operation was intended as a mechanism of last resort. We conclude that the Act is not intended to operate as a benefit existing independent to and cumulatively upon a right to damages at common law or by statute. Further support is gained for this conclusion given that the financial source of the benefit is derived from the same source as payments made to the carers, that is, State Revenue.
Section 20(1)(b) provides a limit of $50,000 for compensation which is to be divided between the two appellants. We have set out the alternative methods of calculation earlier in these reasons at [29]-[33] In our view it is unnecessary to calculate the precise amount, given that the total loss would, on either method of calculation, exceed $50,000.
It is not necessary to consider the Notice of Alternative Contention having regard to the finding that compensation pursuant to s 20(1)(b) should be offset against the payments made to the carers.
We therefore dismiss the appeal.

[2010] SASCFC 20

5 August 2010

Key Legal Topics

Areas of Law

Criminal Law

Negligence & Tort

Legal Concepts

Damages

Remedies

Appeal

Statutory Construction

Intention