New South Wales
Court of Appeal
CITATION: Black v Walden [2008] NSWCA 108 HEARING DATE(S): 10/4/08
JUDGMENT DATE:
29 May 2008JUDGMENT OF: Mason P at 1; McColl JA at 2; Bell JA at 3 DECISION: 1. Allow the appeal and set aside the verdict and judgment in the District Court and in lieu thereof substitute verdict and judgment for the respondent in the sum of $857,714
2. In the event that the parties are unable to agree on the order for costs, written submissions on the form of the order (of not more than 10 pages in length) may be delivered to the Associate to McColl JA by 4.00pm on Friday 14 June 2008. The matter will be dealt with on the papers unless sufficient reason is identified in the written submissions for the proceedings to be listed for further hearing.CATCHWORDS: DAMAGES – wrongful death – death of spouse – Compensation to Relatives Act 1897 – provision of services to family farming business not trading in profit – the value of the benefit of the transmission of jointly owned assets (apart from the matrimonial home) to the surviving spouse LEGISLATION CITED: Compensation to Relatives Act 1897 (NSW)
Fatal Accidents Act 1846 (UK)CASES CITED: Budget Rent-a-Car Systems Pty Ltd v Van Der Kemp (1984) Aust Torts Rep 90-688
Cape Distribution Ltd v O’Loughlin [2001] EWCA Civ 178
Carroll v Purcell (1961) 107 CLR 73
Daniels v Jones [1961] 1 WLR 1103
De Sales v Ingrilli [2002] HCA 52; 212 CLR 338
Franklin v South Eastern Railway Company (1858) 3 H&N 211
Geaghan v D’Aubert [2002] NSWCA 260; 36 MVR 542
Griffiths v Kerkemeyer (1977) 139 CLR 161
Gullifer v Pohto [1978] 2 NSWLR 353
Lewis v Dalton (1986) Aust Torts Rep 80-069
Nguyen v Nguyen (1990) 169 CLR 245
Parker v The Commonwealth of Australia (1965) 112 CLR 295
Public Trustee v Zoanetti (1945) 70 CLR 266
Walden v Black [2006] NSWCA 170
Zordan v Metropolitan (Perth) Passenger Transport Trust (1963) 37 ALJR 159TEXTS CITED: Fleming, The Law of Torts, (Sydney, The Law Book Company Limited, 9th ed) PARTIES: Barry Gordon Black (Appellant)
Edwin Peter Walden (Respondent)FILE NUMBER(S): CA 40334/07 COUNSEL: Mr K Rewell SC / Mr B Smith (Appellant)
Mr B Gross QC / Mr T Boyd (Respondent)SOLICITORS: Curwoods Lawyers (Appellant)
Andrew Warren Associates (Respondent)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 5690/06 LOWER COURT JUDICIAL OFFICER: Goldring DCJ LOWER COURT DATE OF DECISION: 2/5/07
CA 40334/07
DC 5690/06Thursday 29 May 2008MASON P
McCOLL JA
BELL JA
Barry Gordon BLACK v Edwin Peter WALDEN
Judgment
1 MASON P: I agree with Bell JA.
2 McCOLL JA: I agree with Bell JA.
3 BELL JA:
Introduction
The respondent’s wife, Janet, was killed in a motor vehicle accident on 27 August 1997. The respondent brought an action under the Compensation to Relatives Act 1897 (NSW) (the Act) against the appellant, the driver of the vehicle in…
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Details
- AGLC
- Black v Walden [2008] NSWCA 108
- Case
- [2008] NSWCA 108
- Decision Date
CaseChat Overview and Summary
The appeal in *Black v Walden* concerned damages awarded for the wrongful death of a spouse, brought under the *Compensation to Relatives Act 1897* (NSW). The primary dispute revolved around the assessment of the financial benefit conferred upon the surviving spouse by the transmission of jointly owned assets, excluding the matrimonial home, following the deceased's death. The case was heard in the Court of Appeal of New South Wales.
The central legal issues before the Court of Appeal were how to value the benefit to the surviving spouse arising from the transmission of jointly owned assets, particularly in the context of a family farming business that was not trading for profit. This required the court to consider the appropriate methodology for quantifying this benefit and its impact on the overall damages calculation under the Act.
The Court of Appeal determined that the value of the benefit of the transmission of jointly owned assets to the surviving spouse should be assessed by reference to the value of those assets to the survivor, rather than their value to the deceased. This principle was applied to the family farming business, where the court found that the business was not operating for profit and therefore the value of the assets transmitted to the survivor was to be assessed on a different basis than if it were a commercial enterprise. The court allowed the appeal, setting aside the District Court's verdict and judgment and substituting a new judgment in favour of the respondent.
The central legal issues before the Court of Appeal were how to value the benefit to the surviving spouse arising from the transmission of jointly owned assets, particularly in the context of a family farming business that was not trading for profit. This required the court to consider the appropriate methodology for quantifying this benefit and its impact on the overall damages calculation under the Act.
The Court of Appeal determined that the value of the benefit of the transmission of jointly owned assets to the surviving spouse should be assessed by reference to the value of those assets to the survivor, rather than their value to the deceased. This principle was applied to the family farming business, where the court found that the business was not operating for profit and therefore the value of the assets transmitted to the survivor was to be assessed on a different basis than if it were a commercial enterprise. The court allowed the appeal, setting aside the District Court's verdict and judgment and substituting a new judgment in favour of the respondent.
Orders
Orders of the court
1. Allow the appeal and set aside the verdict and judgment in the District Court and in lieu thereof substitute verdict and judgment for the respondent in the sum of $857,714 2. In the event that the parties are unable to agree on the order for costs, written submissions on the form of the order (of not more than 10 pages in length) may be delivered to the Associate to McColl JA by 4.00pm on Friday 14 June 2008. The matter will be dealt with on the papers unless sufficient reason is identified in the written submissions for the proceedings to be listed for further hearing. (per Bell JA with Mason P and McColl JA agreeing)
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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