| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : CAMPBELL & ORS -v- LI-PINA [2004] WADC 226 CORAM : O'SULLIVAN DCJ HEARD : 10 & 11 JUNE 2004 DELIVERED : 12 NOVEMBER 2004 FILE NO/S : CIV 63 of 2002 BETWEEN : SHERRI CAMPBELL First Plaintiff
SCOTT LEE TALLEY
LEAH JUDITH TALLEY (by their next friend HEATHER MELLING)
Second Plaintiffs
BETTY UPTON TALLEY
ROBERT HENRY TALLEY
Third Plaintiffs
AND
LILLIANA LI-PINA
Defendant
Catchwords: Damages - Fatal Accidents Act 1959 (as amended) - Claims by children of deceased living with his former partner, partner of deceased at time of his death and parents of deceased - Little evidence of earnings of deceased for several years before his death - Matter turns on own facts
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Legislation:
Fatal Accidents Act 1959 (as amended)
Result: Awards of $24,169.49 and $32,169.49 to second plaintiffs respectively
Claims of first and third plaintiffs dismissed Representation:
Counsel:
First Plaintiff : Mr J R Criddle
Second Plaintiffs : Mr J R Criddle
Third Plaintiffs : Mr J R Criddle
Defendant : Mr J P Olivier
Solicitors:
First Plaintiff : Biddulph & Turley
Second Plaintiffs : Biddulph & Turley
Third Plaintiffs : Biddulph & Turley
Defendant : Talbot & Olivier
Case(s) referred to in judgment(s):
De Sales v Ingrilli (2002) 212 CLR 338
Public Trustee v Zoanetti (1945) 70 CLR 266
Case(s) also cited:
Nil
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1 O'SULLIVAN DCJ: This is a claim under the Fatal Accidents Act 1959 as amended (the Act) arising out of the death of Adrian Lloyd Talley who died on 31 January 2001 as a result of a motor vehicle accident on Lesmurdie Road, Kalamunda.
2 It is admitted that the death was caused by the negligence of the defendant. 3 The action is brought by the plaintiffs notwithstanding that s 6(1)(b) of the Act provides that it should be brought by and in the name of the executor or administrator of the deceased person, but no point is taken in that regard. 4 The second and third plaintiffs are each "relatives" of the deceased within the meaning of that word in the Second Schedule of the Act being respectively the son and daughter of the deceased and his parents. 5 On the pleadings there is an issue as to whether the first plaintiff qualifies to be defined as a relative, being a person who, although not married to the deceased, lived with him as his wife on a permanent and bona fide domestic basis for not less than three years (see par 8(ii) of the Second Schedule of the Act). However, as I understand it there is now no dispute that the first plaintiff does qualify to be so described, and in any event I am satisfied that the evidence establishes that she does.
Background 6 The deceased was born in Perth on 27 November 1971 and was therefore 29 years of age when he died. He was a qualified motor mechanic completing his apprenticeship with City Motors in Perth between 1989 and 1994. He met Ms Melling, the next friend and mother of his children when he was 17 or 18 years of age and she was 16, and they commenced living together after she turned 17. Scott Lee Talley, their son, was born on 17 March 1994. 7 In about early 1995 and after the deceased qualified as a motor mechanic he and Ms Melling moved to Kambalda where they lived for about nine months. During this time he worked as a mechanic obtaining positions through a hire firm. In late 1995 they returned to Perth. 8 Some time in about late 1996 Ms Melling said that the deceased bought a Harley Davidson motor cycle and joined a motor cycle club. This led to differences between them and their relationship eventually
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came to an end in February 1997. There had been a number of separations before that date. 9 The second named second plaintiff, Leah Judith Talley, was born on 8 May 1997. 10 In February or early March 1997 the first plaintiff Sherri Campbell and the deceased commenced living together. They had known each other at school. The deceased moved into the house in which she was living in Thornlie, which had been her grandmother's property. Later in 1997 they moved together to a rented house in Kenwick for some months and then they returned to the Thornlie home which the first plaintiff arranged to purchase. They were still living in it at the time of the death of the deceased.
The earnings history of the deceased 11 The deceased appears to have been regularly employed on wages until 1996, and there is some written record of his earnings. 12 In 1988 and 1989 he earned small amounts working for different businesses. In the years ended 30 June 1992 and 1993 he earned respectively $12,744.19 and $16,353.56 working for City Motors (1981) Pty Ltd. There is no record of earnings for the year ended 1994 and 1995, but in the year ended 30 June 1996 there is a record of him working for and earning the following amounts over the following periods: | Skilled Engineering Ltd | $486 gross between 5 July 1995 and 12 August 1995 | | Western Mining Corporation Ltd | $2339 gross between 18 July 1995 and 14 August 1995 | | Byrnecut Mining Pty Ltd | $12,072 between 30 August 1995 and 4 September 1995 | | National Nine Management Pty Ltd | $996 between 5 October 1995 and 8 October 1995 | | Youngs Holden | $6828 between 14 November 1995 and 9 February 1996 | 13 Evidence before me includes a notice of assessment from the Australian Taxation Office addressed to the deceased advising that the
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taxable income of the deceased in the year ended 30 June 1996 is assessed at $14,981. 14 There is no written record of the deceased's earnings after 1996. He does not appear to have lodged any tax returns, and there are no financial statements relating to any businesses in which he was engaged.
D&M Transmissions 15 In 1996 the deceased purchased the business of D&M Transmissions ("D&M") which operated from premises in Maddington. 16 Ms Melling said that she was present when the deceased negotiated the purchase of D&M, and saw him speaking with the sellers and examining some paper work, but she did not participate in the negotiations. 17 Ms Melling did not know how much the deceased paid for the business but the purchase was financed by a loan from United Credit Union. 18 Bradley James Durtanovich is the regional manager of United Credit Union. He was at school with the deceased and they were friends. In 1996 the deceased approached him for a loan to purchase the business of D&M. A loan agreement was entered into between United Credit Union Limited as lender and the deceased and his parents as borrowers on 17 June 1996. The amount lent was $43,291. 19 After the business had been acquired Ms Melling said she would visit the premises in Maddington from time to time and was aware that there were a couple of employees including a son of the former owners who worked there for a little while. 20 After a couple of months Ms Melling said that she and the deceased took all the books of the business to an accountant, and she thought that they were going to be sorted out. However, she could not identify the accountant and did not know where the books were. She agreed that they were probably a record of the finances of the business under the previous owners. 21 As to how the business fared after the deceased acquired it, Ms Melling was asked and said: "You don't know what money he made if any?--- No.
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But you do know the business effectively failed don't you?---I do". 22 Ms Campbell said that after her relationship with the deceased commenced in February 1997 she would visit the deceased at the Maddington premises of D&M quite regularly, mainly at night after work. There was a lot of paperwork lying around in the office which she described as "a shambles" and she bought the deceased a filing cabinet and sorted out some papers for him. When the business was closed in 1998 the filing cabinet and papers were brought to the first plaintiff's house in Thornlie and kept in a spare bedroom. 23 As far as the business of D&M was concerned, Ms Campbell said that she became aware that it was experiencing difficulties and she said: "It slowly started getting worse. The bills weren't getting paid. I think it was $1500 he said he was paying a month in rent. It all got on top of him. He said that it would probably be easier to work from home …." 24 Ms Campbell assisted the deceased in moving the equipment of the business out of the Maddington premises in August 1998. Her car and trailer were used for that purpose and the move was carried out at night, over a period of about a week. The equipment which was removed consisted of two big work benches, a tool box, some differentials, three big racks full of nuts and bolts and washers and cogs, a hoist, a car trailer, car parts, wheels, axles, a compressor and "general workshop stuff". All of it was moved to a shed on Ms Campbell's property. 25 An extract from the Register of Business Names tendered in evidence shows that the name D&M Transmissions was removed from the register on 6 August 1998 (exhibit 13).
Maddington Tilt Tray Towing Services 26 Sometime in 1998 the deceased bought a tow truck and had the business name Maddington Tilt Tray Towing Service (MTT) printed on it. Ms Campbell said that he operated the truck from home and she would see him go out in it from time to time at night, but not during the day because she was working. 27 The tow truck was sold by the deceased sometime in 1999. There is no evidence of the sale price.
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28 The business name Maddington Tilt Tray Towing Service was registered on 31 August 1998 and was removed from the register on 5 December 2001.
Pro Diffs 29 In the year 2000 a shed was built on the first plaintiff's property in Thornlie. Mrs Campbell said that after it was built she would see him working in it repairing differentials "almost every night." 30 On 24 January 2001 the business name "Pro Diffs" was registered by the deceased. The extract from the register (exhibit 5) shows the business to have commenced on that date and to be operating from the first plaintiff's property. 31 Among the exhibits tendered were two statements of account of the ANZ Bank headed "TALLEY, Adrian Lloyd trading as 'Pro Diffs'." The account was apparently opened on 24 January 2001 with a deposit of $500. 32 It is the plaintiffs' case that the deceased was engaged in establishing and building up the business of Pro Diffs when he died.
Evidence of financial dealing by the deceased 33 I have already noted the evidence of Mr Durtanovich that the deceased and his parents borrowed over $43,000 from United Credit Union so that the deceased could buy the business of D&M. It seems that of that amount about $8,000 was used to discharge a debt owed by his parents to Homeswest. The balance was presumably the purchase price of the business and perhaps some working and other capital relating to it. 34 The amount of the loan ($43,291) was repayable over 10 years and is the subject of a written agreement dated 17 June 1996. It was secured by a mortgage over the parents' home at 5 Fox Wood Way, Langford. 35 In June 2000 the deceased and his parents bought a property in Partridge Way, Thornlie as joint tenants. This is where the parents now live. The purchase was financed by another advance from United Credit Union resulting in an increased indebtedness of $112,000. 36 Later in the year 2000 that amount was reduced by nearly $55,000 using the proceeds of sale of the parents' former home in Fox Wood Way, Langford.
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37 Mr Durtanovich gave evidence that regular repayments of the monies advanced by United Credit Union would have been made, "otherwise" he said: "we would have taken the house off them."
38 After the purchase of Partridge Way the repayments due were $852 per month until the proceeds of sale of Fox Wood Way had been received. The amount then due monthly was $434. 39 A statement issued by United Credit Union and dated 31 December 2000 shows cash amounts of $860 having been paid in on 18 August, 19 September and 19 October 2000. $54,840.76 was credited on 15 November 2000 in addition to a cash amount of $800. $500 in cash was deposited on 13 December. 40 The amount owing to United Credit Union as at 31 December 2000 was $56,792.17. 41 Mr Durtanovich said that because of his friendship with the deceased he did not personally approve any loan application made by him or his parents. That was done by another employee of United Credit Union. He said that the application to borrow monies to finance the purchase of Partridge Way would have been made about six weeks before the settlement date which was 20 July 2000. 42 As would be expected, Mr Durtanovich said that it is the practice of United Credit Union to require details of an applicant's financial circumstances to be set out in an application for a loan. However, no details have been provided in this case and it seems that if the Credit Union has them they are not readily available. 43 There is one further financial transaction of the deceased which should be noted. 44 A copy of a contract whereby the deceased bought a utility was tendered. It is dated 11 October 2000 and shows the purchase price of the vehicle to be $32,188. In December 2000 the deceased borrowed about $28,000 from United Credit Union and it seems that this was to buy the utility. A statement of account dated 15 January 2001 shows an opening balance advanced of $28,190.54. The deceased did not make any repayments on the advance. 45 Mr Durtanovich said that following the death of the deceased the vehicle was sold and after the proceeds were applied in reduction of the debt the small balance outstanding was written off.
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Evidence of expenditure by the deceased on his children
46 Ms Melling said that shortly after the birth of her daughter Leah she made out an application for "child support". Her evidence was not very clear but she also said: "You get an amount that he has to pay but we had a verbal agreement and he just used to help me out with any bills or if I needed money for the kids he would pay for it …" 47 To the best of Ms Melling's recollection the amount she was entitled to by way of "child support" was $98 per month but it was not paid to her by the deceased on a regular basis. Instead, the deceased would meet expenses for the children when it was necessary. 48 These expenses included, in particular, the costs of Scott entering into BMX competitions. The deceased would buy Scott bicycles and other equipment and pay for him and other members of the family to travel to interstate tournaments. 49 Ms Melling said that the last bicycle the deceased bought for Scott consisted of a frame, called a "Powerlite", which cost $1,200 and other components costing over $1,000. Scott competed in four national championships from 1997 until 2001 and finished fourth or fifth in his age group in each. The deceased paid for trips to Melbourne in 1997 and 1998. In 1997 the cost for three people was $2,200. In 1998 the cost for Ms Melling and Scott and was about $1,500. 50 The championships in 1999 were held in Perth and in 2000 they took place in Darwin. The deceased gave Ms Melling $1,500 for the trip to Darwin. In 2001 the championships were in Adelaide and the deceased had promised Ms Melling the money for the trip before he died. Ms Campbell said that the deceased "had the money at the house" at the time of his death and she gave it to Ms Melling after he died. 51 Apart from paying for Scott's BMX activities Ms Melling said that the deceased would spend time with the children, spending money entertaining them and taking them out for meals.
The evidence of Sherri Leanne Campbell 52 The first plaintiff gave evidence that after the filing cabinet of documents relating to the business of D&M was brought to her property in Thornlie she sorted the documents out into years and placed them in
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boxes. She also said that she saw a book which the deceased kept relating to the business of MTT. 53 According to Ms Campbell these items were sorted out so that the deceased could take them to his accountant and in November 2000 they were taken away by him and she has not seen them since. 54 Ms Campbell said: "I did ring the accountants once. They said that the man I was asking for … no longer works there and that Adrian had an account but they had no records of his." 55 The first plaintiff said that after the deceased sold the MTT truck in mid-1999 he would work at her property "building diffs" out in a shed "just about every night". 56 It seems that there was already a workshop of sorts on the property at that time but in the year 2000 a new shed was constructed. It was 20 x 30 feet in size and was paid for in cash by the deceased. No evidence of its cost was led but the work involved including removing the old shed, using a bobcat to make a pad and pouring a concrete slab and connecting power. 57 After the new shed had been constructed Ms Campbell said that the deceased appeared to have more work. 58 The first plaintiff said in examination-in-chief that while she and the deceased lived together he would give her $200 or $250 a week in cash. She said that she would use this money to pay his mobile phone bill and to meet general household expenses. 59 In addition Ms Campbell said that the deceased would do jobs around the home such as lawn mowing and cleaning the gutters and would service her car. 60 Ms Campbell agreed that as the business of D&M declined he "had very little money coming in" from that source but said "he still had his own money". She said that "he seemed to find money when he wanted money". She also said that the weekly payments which the deceased made continued even after the businesses of D&M and MTT failed. She said: "They still continued. They weren't obviously as much but they still did continue."
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61 The first plaintiff also said in examination-in-chief that from time to time the deceased gave her cash to pay to United Credit Union. Sometimes she would make the payments at the office of United Credit at the Carousel Shopping Centre and sometimes she would give the money to the deceased's mother to make them.
The third plaintiffs 62 The third plaintiffs did not give evidence. They are aged 69 and 74 years respectively and Ms Campbell said that they are both in bad health and were too unwell to attend court. No attempt was made to adduce any evidence they might have been able to give by other means and there are clearly a number of matters of which they could have spoken, including the precise nature of the financial relationship between their son and themselves and the extent to which they were dependent upon him.
The benefits the deceased might have provided 63 The commonly accepted method of assessing damages in cases of this kind is to calculate the sum representing the value of the total benefits the deceased would have provided for claimants and to then determine the share of those benefits appropriate for each (Public Trustee v Zoanetti (1945) 70 CLR 266 at 276, 277 and 279). 64 In De Sales v Ingrilli (2002) 212 CLR 338 Gleeson CJ said at [14]: "Calculating damages for the loss of a reasonable expectation of pecuniary benefit usually involves calculating a primary sum and then making such further adjustments or allowances as are necessary to produce a result that gives a true reflex of the loss. The nature of such adjustments and allowances will be influenced by the manner in which the primary sum is calculated. In a case like the present, there are three main elements in determining the primary sum. Each element involves speculative judgments, which cannot be made with accuracy. The court assesses what benefits the deceased would have brought to the family, in the form of either income or the provision of services. The court determines the share of that benefit that would have been enjoyed by a relative during the deceased’s lifetime. And the court determines the period for which a relative could reasonably have expected to receive the benefit."
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65 De Sales was of course a case involving a claim brought on behalf of persons all of whom had been living with the deceased in a conventional household. This is an action brought for the benefits of three distinct kinds of claimants all of whom are in positions different to each other and to the positions of the widow and children in De Sales.
66 In assessing damages in this case it is appropriate to first consider the income the deceased might have earned if he had lived. 67 The plaintiffs called as a witness a Mr Gary Malcolm Stott who was a supervisor of the deceased when he worked at City Motors. Mr Stott said that the deceased was an excellent worker. He also said that a motor technician at City Motors these days could earn $16.50 per hour and a "top one" $18.50. 68 There is, of course, no evidence that the deceased worked for wages at all after he bought the business of D&M in 1996 and there is no documented evidence of any earnings after that date. 69 Nevertheless counsel submitted that it should not be assumed that the deceased earned little or nothing. 70 Counsel submitted that the deceased's death occurred at a "difficult time" when he had commenced to put his financial affairs in order having taken papers relating to the businesses which he had opened to his accountant. 71 Counsel also argued that the deceased had commenced and was building up the business of "Pro Diffs" and he seemed, on the evidence of Ms Campbell, to be busy, working in his shed almost every night. 72 Against this background counsel for the plaintiff submitted that it was reasonable to use the rates of pay earned by mechanics at City Motors as a guide and to assume that the deceased would have earned $300 net per week from the business of Pro Diffs from the date of his death until 31 January 2003 and thereafter $500 net per week. This latter sum equates to wages of $16.50 per hour. 73 Counsel for the defendant submitted that the evidence simply did not justify these assumptions. The businesses of D&M and MTT each failed, and there is no good reason to conclude that the deceased must have been earning income between 1996 and his death which he did not declare for taxation purposes. He may have, and probably did, earn insufficient to be liable for tax.
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74 In my view it would not be appropriate to assume that but for his death the deceased would now be earning an income equivalent to that of a mechanic employed on wages at City Motors. There is no foundation in the evidence for such a conclusion, and the absence of any tax returns after 1996 combined with the evidence of Ms Melling and Ms Campbell suggests that far from earning an income at that rate, the deceased had been struggling to make a profit at all from the businesses he had established. Certainly it appears that the businesses of D&M and MTT failed and Pro Diffs had only just commenced at the time of the death of the deceased.
75 Nevertheless, I accept that it should not be assumed that the deceased would have earned no income at all if he had not died. 76 At the time of the accident he was, I find, clearly engaged in establishing and building up the business of Pro Diffs and he had invested substantial capital in it by paying for a shed to be constructed on the first plaintiff's land. It is, I think, unlikely that he would have done so if there were no reasonable prospects of commercial success. He had been working from home for some time and the evidence of Ms Campbell, which I accept, was that work seemed to increase after the shed had been built. 77 It also seems clear that, notwithstanding the apparent failure of the two earlier businesses, the defendant was a resourceful man able, as Ms Campbell said, to "find money when he wanted money". He successfully joined with his parents in raising monies by way of loans from United Credit Union and would have had to satisfy the Union's requirements as an applicant. In addition, according to Ms Campbell whose evidence I accept, he provided the monies to meet at least some of the repayments due on those loans as well as making regular weekly contributions in order to meet housekeeping and other expenses. In addition to this, it is clear that he provided Ms Melling with significant amounts of money from time to time to meet the expenses associated with Scott's BMX activities. 78 Of course the difficulty which still remains is to assess the amount the deceased would have been able to earn had he not met a premature death. In that regard to attempt to do so with any precision would I think, be speculative. Other than to say that on the evidence I am satisfied that he would have earned some income, probably at a fairly low rate, I am unable to fix a particular amount with any confidence.
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79 The approach of counsel for the plaintiffs was to ask the Court to calculate the income the deceased would have earned but for the accident, and to then apportion the benefits of it available for the claimants using table 9.1 in Luntz: "Assessment of Damages for Personal Injury and Death"; 4th Ed. Clearly the conclusion which I have reached as to the state of the evidence concerning the likely earnings of the deceased causes difficulty with that approach, but in any event, table 9.1 assumes a deceased who had been living with his family in a conventional household and as the breadwinner. The table is clearly not appropriate for use in a case such as this, and I turn to examine the claims of each of the plaintiffs separately.
The claim of the first plaintiff 80 The first plaintiff worked for Farmer Jacks Kelmscott for about three and a half years until October 1998 when she said she gave up work for a while "basically to get things up and running at home". She said that while she was not working the deceased was "supporting the household". 81 In 1999 the first plaintiff completed a four-week course at Fremantle Hospital as a patient care assistant and then worked casually at the hospital in that position before finding full time employment at Murdoch Surgicentre as an orthopaedic technician. 82 In the year ended 30 June 1999 the first plaintiff's taxable income was $5,964. 83 The first plaintiff's taxable income in the year ended 30 June 2001 was $20,251 and in the year ended 2002 she said it would have been "much the same". She is now working in the same capacity for a business called "Scotts Surgical". 84 The first plaintiff is now living in a de facto relationship with Glen Michael Wheatley who is an employed motor cycle mechanic. They have been living together for about two years, but she said that she has no intentions of marrying, nor for the moment of having children. She said: "Clocks ticking. I've got mortgages. I've got a good job. So it's not in my mind at the moment, no." 85 As is well known, the task of the court in a case such as this is to "value the chance that the particular claimant would have derived some material benefit from the deceased had the latter lived" (Luntz(supra) par 9.2.8).
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86 Although I have not made a finding as to any precise income the deceased might have earned but for his death, I am quite satisfied on all the evidence that it would have been substantially less than the income of the first plaintiff.
87 This finding is, of course, not of itself fatal to her claim because the question is not whether she was dependant upon the deceased, but whether she had a reasonable expectation of benefit at the time of his death. However, I am also quite satisfied that the first plaintiff would have continued to earn a significantly greater income than the deceased for some considerable time. In the period during which the deceased and the first plaintiff lived together, from February 1997 until 31 January 2001, this was clearly the case. In addition it was and is the first plaintiff's house, and she met the cost of acquiring and keeping it as well as every day household expenses, albeit with some assistance from the deceased. 88 It is also clear that the first plaintiff's changed circumstances as a result of the death of the deceased must be taken into account. She has now formed a de facto relationship which has lasted over two years, and it can be expected that she is receiving, and will continue to receive, some benefits of a financial kind from that relationship. Further, her property has been improved, no doubt, as a result of the construction of the shed upon it by the deceased. 89 Taking all these matters into account and in the light of the uncertainty as to the deceased's own financial position, I am unable to conclude that the first plaintiff has suffered any financial loss as a result of his death.
The claims of the second plaintiffs 90 I am satisfied that but for his premature death the deceased would have continued to provide monies for the benefit of the second plaintiffs, and while the amount is again difficult to quantify, I do note that in the years 1997 to 2000 the deceased paid out quite substantial sums to finance Scott's BMX competition and travel expenses, as well as other monies for the children. 91 Doing the best I can I find that the amount the deceased would have been likely to advance for the benefit of each child was $50 per week. I consider that these sums would have been within his capacity and commensurate with the reasonable expectations of each child.
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92 For the period from the date of death of the deceased until the present day each child should receive $9,850 plus interest thereon at the rate of three per centum per annum.
93 For the future Scott will turn 18 on 17 March 2010 and the appropriate multiplier is 264 resulting in the sum of $13,200. 94 In Leah's case the multiplier is 424 and the amount is $21,200.
The claim of the third plaintiffs 95 I have already noted that the parents of the deceased did not give evidence in person, and no attempt was made to have their testimony adduced in any other way. 96 There is I think, a real difficulty in concluding that the third plaintiffs have suffered any financial loss as a result of the death of their son. 97 While there is some evidence that the deceased made some payments in respect of the loans obtained from United Credit Union, the bulk of the monies raised by such loans appear to have been used for his benefit in any event. Further, the property in which the third plaintiffs are now living was held by them and their son as joint tenants, and his interest in it has now passed by survivorship to them. 98 In all the circumstances, I am not satisfied that it has been established that the third plaintiffs suffered any loss of a financial kind as a result of the death of the deceased.
Conclusion 99 The second plaintiffs should receive the following sums: Scott Lee Talley Past loss of pecuniary benefits $9,850.00 Interest on past loss at 3 per cent $1,119.49 Future loss of pecuniary benefits $13,200.00 Total $24,169.49 Leah Judith Talley Past loss of pecuniary benefits $9,850.00 Interest on past loss at 3 per cent $1,119.49 Future loss of pecuniary benefits $21,200.00 Total $32,169.49
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100 The claims of the first and third plaintiffs should be dismissed.
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