Bill Palmer v Prestiage Baking Industries Pty Ltd

[1981] FCA 111

Clty Mutual Bulldlng,	PRINCIPAL REPORTER,
Hobart Place,	AUSTRALIAN CAPITALTERRITORY
CANBERRA CITY, A C.T 2601
PO Box476
Telephone. (062)	49 7322

CORRECTION TO T W S C R I P T

In the matter of B111 PALMER and Denlse Gay BAMMAN

as executrlx of the rnll of Peter James BAMMAN, heard in

the Federal Court of Australla before Fox, Blackburn and
Shepparc JJ, at Canberra on Thursday, 2 AprIl 1981, please

substltute pages 44 - 47 for transcript previously Issued.

Thls transcript has been re-issued at the request

of the court, to incorporate the JUdgInent dellvered by

the Court.

per:

W. J. MILLS

Principal Reporter

13/7/1981 . .

I a m so r ry no t t o be able to be more Informed,

t h a t i s as much as we have been

your	Honours,	but
able	t o f l n d o u t	about.

FOX J:  You have got a f a n range of select lon then.

MR GROVE: Yes, your Honour, bu t w e would wlsh t o p u t t h a t on

record w e made t h a t - - -

SHEPPARD J:  But I n case w e have t o come t o t h l s , what do you

say the s lgnif lcance of Barrell 1s f o r u s , If any?

H a s It no s lgn l f l cance or does it suggest a dlscount

of two per cent or - - -

M R GROVE:  No, your Honour, w e would c o n t e n d t h a t t h e t r u e

p r i n c l p l e	1s	t o be	found In an unreported decision
of	the Cour t	of Appeal	i n New South Nales i n

Saul v Menon. That 1s unreported, your Honour, of

18 August 1980.

SHEPPARD J:  I th lnk it 1s reported, M r Grove.

MR GROVE: Your Honour, i n t h e i n d i c a t l o n of t h e New South Wales

Law Reports it is supposed t o be comlng o u t i n t h e

n e x t b l t , p a r t 3, your Honour. I can glve your Honours

the r e f e rence now. I looked f o r it las t nlght . It

1s l980 2 NSWLR, page 314, and we would contend tha t

t h a t 1s t h e t r u e p r lnc lp l e r ecogn lz lng i f one were

before a s l n g l e judge of t h e Supreme Court of New

South Wales - f o r example, we are no t , hu t ce r t a ln

matters of au tho r i ty would be re levant , bu t our

contentlon would be I n t h m c o u r t t h a t t h e t r u e p r l n c l p l e

i s found In Saul v Menon and t h a t is what ought t o be

followed, Barrell notwithstanding.

Your Honour, w e would r e c o g n l z e t h l s d i f f i c u l t y

a b o u t I t , t h a t would be our contentlon and having

sard It w e would wlsh t o p r o t e c t o u r p o s l t i o n i n

r e l a t l o n t o it. Indeed, I welcome t h a t - - -

FOX J:  The headnotes In these cases seem lntermlnable these

days. They go on fo r abou t two t o three pages, each

Judge expresslng	a d l f f e r e n t view as It were, even	i n
New South Wales.

M R GROVE:  Your Honour, w e can Inform you i n t h e two cases,

Teodorowych and Brassell of the Court of Appeal, they

are j o i n t judgments -

FOX J:  Yes, qu i t e . We have not seen the headnote of It ye t .

M R GROVE:	Your Honours,	those	are t h e matters w e wish t o p u t .
FOX J:	The	cour t w l l l ad jou rn th i s	case u n t r l 2 - 1 5 a t whlch

tune It may be I n a p o s l t l o n t o dellver judgment o r

It may on t h e o t h e r hand w l s h t o r e s e r v e i t s decis lon.

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FOX J: The cour t w i l l d e l l v e r Judgment i n t h i s matter now.

This 1s an appeal from the Supreme Court of the

Aus t r a l l an Cap l t a l Te r r i t o ry in r e spec t o f an actlon

under t h e Compensatlon	(Fatal	Injur	les)	Ordinance
1968	of	the Aus t ra l ian Capl ta l Ter r l to ry .	In	the
a c t i o n l i a b l l l t y	w a s adnutted	and	t h e matter	f o r

determlnation by the learned	trial judge was one of
damages only.

The de fendan t i n tha t ac t lon has appea led to

t h i s c o u r t c l a i m l n g t h a t t h e damges awarded were

excessive.	I do not propose	to	go	through	a l l t h e
f a c t s , b u t	t o m e n t i o n	some	basic ones.	The	deceased
w a s born	on	12 J u l y 1952.	H e d i e d l n	an accldent	on

20 January 1979. He had been married t o the

p la in t i f f ,	t he r e sponden t be fo re us ,	on	3	June	1972.
The	p l a l n t i f f h e r s e l f	had been born	on	5	January 1953,

and w a s t h e r e f o r e 26 years o ld a t t h e t i m e of her

husband' S death. There are two chi ldren of t h e

marriage, both boys, one of whom was born posthumously.

The e l d e r r i s Paul Anthony, who was born on 3 January

1975; the second	1 s Chrlstopher Peter born on
1 October 1979.

The deceased , ln respec t of whose dea th the

i

clalm i s made, w a s employed i n t h e Commonwealth Publ ic

l Servlce and was a t t h e time a c t l n g I n a Class 6

pos l t lon In the Thi rd Div is lon of the Publ ic Serv ice .

The learned trial Judge found, and hls f lndlng 1 s not

a t t a c k e d , t h a t lt was expected that the deceased

would go as far as Class 9 i n the Th l rd Div l s ion

but no f u r t h e r . The judge found tha t t he ne t weekly

income of the deceased af ter deducting tax and

superannuation w a s a t t h e t i m e of death $257. H e

made a t o t a l award i n t h e	sum	of	$213,096-25.	H e
oppor t loned th l s	sum	a s t o	50	p e r c e n t t o t h e - p l a l n t i f f

and as t o 25 per cent to each of the ch i ldren . He

t r ea t ed the ch i ld ren , fo r t he pu rpose of h l s

1 ca l cu la t lons , as be lng l ike ly to be dependent until

they were 2 1 years o ld respec t lve ly .

Three points have been ralsed on t h i s a p p e a l .

The a p p e l l a n t f i r s t p o l n t s t o t h e f a c t deposed t o i n

t he ev idence o f t he p l a ln t l f f he r se l f t ha t she had

been worklng before the deceased's death, was working

a t t h a t t i m e , and worked f o r a time a f t e r h i s d e a t h .

Counsel has a l so p rope r ly r e fe r r ed t o the fact t h a t

l a t e r i n h e r e v l d e n c e t h e p l a l n t l f f s a y s t h a t s h e

was total ly dependant upon the deceased. Counsel

d id no t s eek to use the ev ldence to	whlch	I	have	r e fe r r ed
I n	any	d l r e c t	way,	b u t s a y s , r a t h e r , t h a t t h e e f f e c t

was not explored below.

It may be tha t tha t ev idence would have had l i t t l e

o r no	impact.	The f a c t 1s t h a t t h e	matter having been
d i s c l o s e d i n t h e p l a m t i f f ' s e v i d e n c e ,	it	was	not

palman 2.4.8 1	45
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followed up on behalf of the defendant by

cross-examlnatlon or by evidence or argument.

In my vlew r t 1s now too la te f o r t h e m a t t e r t o

be r a l sed .

The second polnt refers to the balance which

the learned trlal Judge found between c e r t a l n

c l rcumstances to	whlch	he	r e f e r r e d I n h l s	judgment.
H e d ld no t	go	I n t o d e t a l l w l t h	respect	t o t h e s e

mat te rs bu t In genera l what he d l d do w a s t o e q u a t e

the value of the provis lon of labour In the sense

of odd jobs done by the deceased, and of superannuatlon

benefl ts wlth ci rcumstances whlch mlght, i n g e n e r a l ,

be called v i c l s s l t u d e s and wlth the "re-marrlage

fac tor" or rev ived capac l ty to marry .

The learned judge, as I have sa ld , d id no t dea l

In de ta l l wi th these mat te rs bu t found a balance

between	them.	I t has not	been shown t o us t h a t h e
was wrong o f v i c l s s l tudes	i n r e l a t l o n	a t	l e a s t t o t h e q u e s t l o n

and re-marrlage it i s p l a l n t t h a t

these are pa r t i cu la r ly wl th ln the p rovmce of a

t r x a l Judge and t h l s c o u r t would n o t I n t e r f e r e

un le s s t he re w e r e p l a ln i nd lca t lonso f hlm bemg wrong

Thls 1 s no t t he case , and In my view we should not

accept th i s submlss lon as be lng suf f lc len t ly cogent

t o cause us t o u p s e t t h e J u d g e ' s d e c l s l o n .

l

The t h i r d m a t t e r r e a l l y had two aspec ts , one

of whlch I th ink was passed from fa l r ly qu lck ly .

That was r e fe rence to the expend l tu re shown i n t h e

evldence concernlng mortgage payments and It was sa id

I t h a t when they came t o an end an allowance dlfferent

from t h a t whlch the learned judge made should be

made	In r e spec t o f t he	amounts whlch,	up	tlll then,
would be d lsbursed In	respect of	the	mortgage.	There

1s scant evldence about the mortgage, beyond t h e

f a c t t h a t It existed and	c e r t a l n payments were made.
W e do no t know when	It would have come t o an end
and t o what extent payments towards	It were on account

of p r l n c i p a l o r were on account of I n t e r e s t . I n any

event, the consequences, If one had s u f f l c i e n t

lnformatlon upon whlch t o work them out , would not

necessa r l ly a l t e r t he a s ses smen t of damages: one

would have t o work o u t J u s t what would be the appropr la te

way m proceedlngs such as these to t rea t the re leased

income.

The o ther aspect , whlch mlght be regarded a s

a fou r th p o i n t , r e l a t e d t o t h e c a l c u l a t l o n of t h e

ult lmate degree of dependency of the wife . The learned

judge took It a t 60 per cent, havlng In mlnd t h e

amounts accrulng and t h e dependency s i t u a t i o n . I n respec t of the ch l ldren success lve ly a t ta ln lng the age

of 2 1 it 1 s s a l d , I n s h o r t , t h a t h l s Honour has wrongly

es t lmated the re leased Income. t h a t 1 s t h e lncome

whlch would no t lona l ly be released upon the ch i ld ren

palman 2 . 4 . 8 1 46

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successively attaining	2 1 ,	and has a l located
t h e r e l e a s e	i n a wrong fashion.	This IS, however,

e s s e n t i a l l y a matter of estimation and of Judgment,

and i n my view h i s Honour has n o t been shown t o

be wrong. I t was put by counsel for the respondent

t h a t it i s no t assumed tha t the deceased would no t

have spent more on h i s wife when the ch l ld ren were

o f f h i s hands. That 1s what I unde r s t and the f lna l

p o l n t t o have amounted to . It was a mat ter of

judgment and I n my oplnlon no basis has been shown

for upset tmg the assessment hade	by	the learned
judge .

There are no f u r t h e r p o i n t s and i n my opinlon

therefore the appeal should be disnussed with costs .

BLACKBURN J:	I agree.
SHEPPARD J:	I a l s o agree.

FOX J: The order of t h e c o u r t is t h a t t h e a p p e a l be

dismissed with costs .

M R GROVE:  If your Honours p lease .

MR WILLIAMS: If the cour t p leases .

AT 2.31 PM THE MATTER WAS ADJOURNED

INDEFINITELY

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