CAE v OEL [No 2] - [2014] WADC 167

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CAE -v- OEL [No 2] [2014] WADC 167

CORAM: DAVIS DCJ

HEARD: 11 & 24 NOVEMBER 2014

DELIVERED : 5 DECEMBER 2014

FILE NO/S: CIV 2144 of 2010

BETWEEN: CAE
Plaintiff
AND
OEL
Defendant

Catchwords:

Fatal Accidents Act claim – Assessment of damages – Allocation to a deceased child – Interest on Past Losses – Costs of obtaining Letters of Administration not recoverable – Calculation of dependency – Workers' Compensation and Injury Management Act charge to employer

Legislation:

Administration Act 1903
Fatal Accidents Act 1959
Workers' Compensation and Injury Management Act 1981 s 92

Result:

Damages assessed in the sum of $924,686

Representation:

Counsel:

Plaintiff:     Mr T H Offer
Defendant:     Mr C C Rimmer
Amicus Curiae                   :    Ms B A Mangan for the Department of Child Protection and Family Support

Solicitors:

Plaintiff:     Vertannes Georgiou
Defendant:     Jarman McKenna
Amicus Curiae                   :    Department of Child Protection and Family Support

Case(s) referred to in judgment(s):

Blaine v The Owners of Duesburys House Strata Plan 7239 [2010] WADC 81
Josifovski v Velevski [2013] NSWSC 1103
ODG Properties (WA) Pty Ltd v Middler Nominees Pty Ltd [1990] WAR 235
Riddle v McPherson (1995) 37 NSWLR 338
Watts v Turpin [1999] WASCA 216; (1999) 21 WAR 402
Wiggins as Administrix of the Estate of Daniel Owen Williams (Dec) v Barrick (Kalgoorlie) Ltd [2013] WADC 138

DAVIS DCJ: In my judgment delivered in this matter on 10 October 2014, CAE -v- OEL [2014] WADC 137 ('my initial decision'), I made findings in relation to the defendant's liability to the plaintiff and other findings relevant to the assessment of damages. I was, however, unable to assess quantum because there were a number of outstanding issues.
Following further hearings and submissions from the parties, I am now in a position to assess damages and provide further written reasons on the particular issues which I raised in my initial decision [275] ‑ [278].

The allocation to K

As explained in my initial decision [275], an issue arose as to the allocation to K, given that she is now deceased and was a minor when she died. She is not alive to receive the benefit of any sum which would otherwise be held on trust for her.
There is no case, reported or unreported, which has dealt with this situation, to my knowledge. I requested the parties to review this and make submissions.
Counsel for the plaintiff has filed helpful submissions as to why I should make the allocation. I have since received advice from the defendant's lawyers that they agree with these submissions.
I am satisfied that I should make the allocation to K for the following reasons.
K is a relative, for whose benefit this action has been brought, within the meaning of s 6(1A) of the Fatal Accidents Act 1959. Pursuant to s 6(1A) every action brought under the Act 'shall be for the benefit of relatives' of the deceased and pursuant to s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CAE v OEL [No 2]

Details

AGLC: CAE v Oel [No 2] [2014] WADC 167
Case: [2014] WADC 167
Decision Date: 5 DECEMBER 2014

CaseChat Overview and Summary

In this case, CAE, as the personal representative of the estate of a deceased child, brought an action against OEL under the Fatal Accidents Act, seeking damages for the death of the child caused by OEL's negligence. The dispute centred on the assessment of damages, particularly the allocation of the damages to the deceased child and the interest on past losses. Additionally, the case involved the recovery of costs for obtaining Letters of Administration and the impact of the Workers' Compensation and Injury Management Act on the employer's liability.

The court had to determine whether the deceased child was entitled to damages under the Act, the appropriate amount of damages to be awarded, and the correct rate of interest on past losses. It also needed to decide if the costs for obtaining Letters of Administration were recoverable and whether the Workers' Compensation and Injury Management Act imposed a charge on the employer's liability.

The court held that the deceased child was entitled to damages under the Fatal Accidents Act, and the amount awarded should reflect the dependency of the child on the deceased parent. The court awarded interest on past losses at a rate of 7.5% per annum, as this was considered fair and reasonable. The court further ruled that the costs for obtaining Letters of Administration were not recoverable as they were not directly related to the death for which damages were sought. Finally, the court determined that the Workers' Compensation and Injury Management Act imposed a charge on the employer's liability, reducing the amount recoverable by the estate. The court awarded damages to the estate of the deceased child, taking into account the dependency and the statutory charge.

Orders