Campbell v Li-Pina - [2007] WASCA 64

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CAMPBELL -v- LI-PINA [2007] WASCA 64

CORAM: STEYTLER P
McLURE JA
BUSS JA

HEARD: 4 APRIL 2006 & 17 JANUARY 2007

DELIVERED : 23 MARCH 2007

FILE NO/S: FUL 5 of 2005

BETWEEN: SHERRI CAMPBELL
Appellant
AND
LILLIANA LI-PINA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :O'SULLIVAN DCJ
Citation  :CAMPBELL & ORS -v- LI-PINA [2004] WADC 226
File No  :CIV 63 of 2002

Catchwords:

Damages - Assessment - Fatal Accidents Act 1959 (WA) - Action by de facto partner - Matters to be taken into account - Basis of assessment - Subsequent relationship

Legislation:

Fatal Accidents Act 1959 (WA), s 4, s 6

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr J R Criddle
Respondent: Mr D R Sands

Solicitors:

Appellant: Biddulph & Turley
Respondent: Talbot & Olivier

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

Allan v The Commonwealth (1980) 24 SASR 581
De Sales v Ingrilli (2002) 212 CLR 338

STEYTLER P: I agree with McLure JA.
McLURE JA: The appellant appeals from the decision of O'Sullivan DCJ dismissing her claim under the Fatal Accidents Act 1959 (WA) ("the Act") arising out of the death of her de facto husband ("the deceased") on 31 January 2001. On 4 April 2006 the appellant applied for leave to rely on additional evidence relating to the cessation of a subsequent de facto relationship that was in existence at the date of trial. The appeal was adjourned to enable the respondent to obtain instructions and to determine whether the appellant was required to attend for cross‑examination. The Court was informed at the start of the adjourned hearing that the relationship had recommenced.
The deceased was aged 29 when he died in a motor vehicle accident caused by the negligence of the respondent. He was the father of two children from a previous de facto relationship of some seven years which ended in February 1997.
In February or March 1997 the appellant and the deceased commenced cohabiting. They were still living together at the time of the deceased's death in 2001. Initially they lived in rented accommodation and thereafter in a house in Thornlie which the appellant was purchasing.
The deceased was a qualified motor mechanic. He was employed on wages until 1996. There was little evidence of the deceased's earnings after 1997. He did not appear to have lodged any taxation returns and there were no financial statements relating to any business in which he engaged.
In 1996 the deceased purchased the business of D & M Transmissions & Automotive Service which operated from premises in Maddington. The business was unsuccessful and ceased in 1998. The equipment of the business was moved to a shed on the appellant's property in Thornlie.
Some time in 1998 the deceased purchased a tow truck and carried on a business under the business name Maddington Tilt‑Tray Towing Service ("MTT"). The tow truck was sold by the deceased some time in 1999. In 2000 an old shed on the appellant's Thornlie property was removed and a new 20 ft x 30 ft shed was constructed and paid for in cash by the deceased. After it was built, the deceased worked in it almost every night repairing differentials. On 24 January 2001 the deceased registered the business name Pro Diffs. The business name extract shows

the business to have commenced on 24 January 2001 and to be operating from the appellant's Thornlie property.

The appellant's evidence was that when she and the deceased first lived together he would give her $200 or $250 per week in cash that she used to pay his mobile telephone bill and to meet general household expenses. In addition, the deceased would do jobs around the home such as lawn mowing, cleaning the gutters and servicing the appellant's car. The weekly payments made by the deceased continued after the failure of his businesses although the amount he contributed decreased to around $100 to $150 per week. The deceased did not contribute in any way to the purchase of the Thornlie property.
The trial Judge rejected the appellant's submission that but for his death the deceased would be earning an income equivalent to that of a mechanic employed on wages ($16.50 per hour). The trial Judge said (at [74]):
"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 [the deceased's former de facto partner] and [the appellant] 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."
Although the trial Judge accepted it should not be assumed that the deceased would have earned no income at all if he had not died, he said (at [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."
The trial Judge rejected the appellant's submission that the Court should calculate the income the deceased would have earned but for the accident and then apportion the available benefits to the claimant using Table 9.1 in Luntz "Assessment of Damages for Personal Injury and Death" 4th ed at [9.3.3]. The trial Judge concluded that Table 9.1 was not applicable in this case because the Table "assumes a deceased who had been living with his family in a conventional household and as the breadwinner" (at [79]). As will be seen, Table 9.1 is not confined to situations where the deceased is the breadwinner.
Although the trial Judge did not make a finding as to the income the deceased might have earned but for his death, he was satisfied on all of the evidence that it would have been substantially less than the appellant's income. For about three and a half years until October 1998 the appellant worked for Farmer Jacks, Kelmscott. She then qualified in 1999 as a patient care assistant and commenced full‑time employment as an orthopaedic technician. Her taxable income in the year ended 30 June 2001 was $20,251 and was much the same in the year ended 30 June 2000. At the time of trial the appellant was living in a de facto relationship with Glen Wheatley who was an employed motor cycle mechanic. At the time of trial (10 and 11 June 2004) they had been living together for about two years but had no present intention of marrying or having children. The appellant and Mr Wheatley separated in the period between August 2005 and June 2006. The relationship then recommenced.
Referring to his finding that the deceased's income was substantially less than the appellant's, the trial Judge said (at [87] ‑ [89]):
"This finding is, of course, not of itself fatal to her claim because the question is not whether she was dependant [sic] 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 [appellant] 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 [appellant] lived together, from February 1997 until 31 January 2001, this was clearly the case. In addition it was and is the [appellant'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.
It is also clear that the [appellant'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.
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 [appellant] has suffered any financial loss as a result of his death."
The deceased's children were also claimants under the Act. The trial Judge found that the deceased would have been likely to advance for the benefit of each child the sum of $50 per week until they turned 18.
In substance, the appellant claims that the trial Judge erred:
(1)in failing to make an assessment of the primary sum that would have been available to the relatives of the deceased had it not been for his premature death;
(2)in taking into account the alleged benefits derived from the de facto relationship entered into by the appellant after the deceased's death;
(3)by equating the appellant's entitlement to a "reasonable expectation of benefit" with the concept of a "financial loss" arising from the deceased's death;
(4)in failing to have regard to seven specified matters including the age of the appellant and the deceased at the date of death; that the deceased had been in constant employment since aged 17; the deceased's contribution to household expenses; that the deceased had commenced the Pro Diffs business shortly before his death and had taken steps to register the business for taxation purposes; that the deceased had the option of becoming an employed mechanic if the Pro Diffs business failed; that the appellant was entitled to a presumption that the relationship with the deceased and the appellant's expectation of benefit from the continuation of the deceased's life would have continued for the balance of their joint lives subject to a discount for the normal vicissitudes of life; and the deceased's contributions by way of services;
(5)in reaching an inconsistent conclusion in relation to the deceased's capacity to provide benefits to his children;
(6)in failing to assess the appellant's entitlement to damages on the following bases:
(i)the deceased had a capacity to earn income as an employed mechanic from the date of the wrongful death until the deceased attained the age of 65 years subject to a discount for the possible failure of the Pro Diffs business which was conducted by the deceased at the date of his death;
(ii)in accordance with the tables published in Luntz, at least 65 per cent of the deceased's income would have been available to the deceased's relatives but for the premature death;
(iii)the appellant is entitled to damages based on an assessment of the amount of the deceased's net income available to the relatives of the deceased less the amount awarded to the deceased's children subject to a discount for the normal contingences of life including the contingency that the appellant may derive some financial benefit from her de facto relationship with Mr Wheatley.

Legal Principles under the Act

Where the death of a person is caused by a wrongful act, and the victim, had he or she survived, would have been entitled to sue, the wrongdoer is liable to be sued in an action brought for the benefit of relatives of the deceased: s 4(1) of the Act.
Section 6(1) provides that an action under the Act is brought for the benefit of relatives of the deceased. The term "relative" was at the material time defined in Sch 2 to include a de facto partner of the deceased who was living in a de facto relationship with the deceased and had been living on that basis with the deceased for at least three years immediately before the deceased died. It was accepted that the appellant was a de facto partner of the deceased. "Relative" also includes a son or daughter of the deceased.
Section 6(2) of the Act provides:
"In every action the court may give such damages as it thinks proportioned to the injury resulting from the death to the parties respectively for whom and for whose benefit the action is brought."
The damages are compensation for "injury". Injury is not defined in the Act. Two points have been noted about what damages are recoverable for injury. First, damages are calculated by reference to the pecuniary benefit that could reasonably have been expected from the continuance of the life of the deceased had death not occurred. Secondly, damages for injury are calculated on a balance of pecuniary gains and losses consequent upon the death: De Sales v Ingrilli (2002) 212 CLR 338 at [11] per Gleeson CJ. Loss of an expected benefit is not restricted to loss of direct financial support. A claimant's loss may include the value of services the deceased would have provided around the home.
Gleeson CJ in De Sales spoke of the usual approach to be taken in calculating damages for injury. He said (at [14] ‑ [15]):
"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 … The primary sum awarded is the present value of a relative's total expected benefit. The calculation of the primary sum might itself be done by a method that involves allowing for contingencies such as are taken up in actuarial calculations of life expectancy, and the present value of a future income stream.
The court may then be required to allow for further contingencies that may affect the loss of benefit sustained by the claimant. Courts take account of such contingencies in two ways. Certain contingencies may be provided for by way of a general allowance for the 'vicissitudes of life'. Such contingencies may be relatively unlikely to occur, or their occurrence may be impossible to predict with any accuracy. Other contingencies may be more likely to occur, and more susceptible to specific calculation in the circumstances of a particular case. In these circumstances, if the tribunal assessing damages is a judge sitting without a jury, it may be appropriate to apply a special discount for the specific contingency in question."
In De Sales, a widow brought an action for damages under the Act following the death of her husband in August 1990. She was aged 27 at the time of her husband's death. They had been married for five years and had two young children. After her second child was born in April 1990 the widow worked full time, without salary, in the family home. She had not remarried at the time of trial in 1999 and had only been involved in one relationship of limited duration since her husband's death. The trial Judge discounted the damages by 5 per cent on account of the prospect that the widow would obtain a future financial benefit from remarriage and allowed no discount for the general vicissitudes of life. On appeal, the Full Court of the Supreme Court of this State held that the damages should be discounted by 20 per cent for the prospects of an advantageous remarriage or relationship and by 5 per cent for general contingencies. The High Court held that the Full Court erred in allowing a discount of 20 per cent for the widow's prospects of remarriage or forming an advantageous relationship.

The Deceased's Income

The appellant claims in substance that the trial Judge erred in concluding that it was not possible to assess the income the deceased would have been able to earn in his working life had he not met a premature death. There is merit in this contention.
The trial Judge found (at [76] ‑ [77]):
"At the time of the accident [the deceased] 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 [appellant'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 [the appellant], which I accept, was that work seemed to increase after the shed had been built.
It also seems clear that, notwithstanding the apparent failure of the two earlier businesses, the [respondent] [sic] was a resourceful man able, as [the appellant] 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 [the appellant] 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 [his former de facto partner] with significant amounts of money from time to time to meet the expenses associated with [his son's] BMX activities."
The evidence established that in June 1996 the deceased (with his parents) borrowed $43,291 from United Credit Union Limited ("United Credit") which, apart from $8000, was for the purchase of the business of D&M Transmissions. The loan was secured by a registered mortgage on the deceased's parents' home in Langford. The loan agreement provided for repayment by instalments of $572 per month. There had been no default in payment and the evidence was that the deceased funded the payments. In July 2000 the deceased and his parents increased their borrowings from United Credit to enable the deceased's parents to purchase a new home. Further, in December 2000 United Credit provided finance of $28,000 to the deceased for the purchase of a Ford utility vehicle.
The appellant claimed at trial and in the appeal that it was not unreasonable to infer that the deceased would have earned the equivalent of an apprentice mechanic's wage ($300 net per week) for a period of two years after his death in the establishment phase of the Pro Diffs business. Thereafter, it was contended, it was not unreasonable to infer that the deceased would have earned a net weekly income of $500 which is equivalent to the average net weekly wage of a mechanic. Having regard to the trial Judge's findings set out above and the other (unchallenged) evidence as to the deceased's borrowings and outgoings, the figures relied on by the appellant are reasonable and an appropriate basis for calculating the deceased's future income. The trial Judge's error in failing to determine the deceased's future income caused him to depart from the orthodox approach to the calculation of the appellant's loss. The position of both parties in the appeal was that this Court has the necessary material to consider and determine the appellant's loss of a reasonable expectation of pecuniary benefit.

Calculation of Loss

The appellant calculated her loss by reference to (1) future net income of the deceased of $300 and $500 per week; (2) the percentages in Table 9.1 in Luntz relating to a surviving spouse and two children in a two income family with equal incomes; (3) the 6 per cent discount tables for the calculation of loss from the date of the judgment; and (4) a discount for vicissitudes (including the prospect of a beneficial relationship) of 10 per cent. The calculation is as follows:

(i)	Period 31/1/01 to 31/1/03 ‑ 104 weeks $300 x 20.8% x 104 x 90% =	$5840.64
(ii)	Period 31/3/03 to 10/12/04 ‑ 88.57 weeks $500 x 20.8% x 88.57 x 90% =	$8290.15
(iii)	Period 11/12/04 to 17/3/2010 (Scott's 18^thbirthday) ‑ 5 years 3 months 7 days $500 x 20.8% x 235 x 90% =	$21996.00
(iv)	Period 18/3/2010 to 8/5/2015 (Leah's 18^th birthday) ‑ 5 years 1 month 21 days $500 x 23.9% x (410‑235) 175 x 90% =	$18821.25
(v)	Period 9/5/2015 to 27/11/2036 (deceased's 65^th birthday) 21 years 6 months 19 days $500 x 31.2% x (769‑410) 359 x 90% =	$50403.60
$105351.64

The appellant also claimed for loss of the deceased's services. The deceased provided gardening, vehicle and house maintenance services to the appellant. There was no evidence as to the time spent in the provision of those services. The claim is based on an average of two hours per week at $15 per hour. For the period from the date of death to judgment the amount claimed is $5789.10. From the date of judgment to the deceased's 65^th birthday, with a discount for contingencies of 10 per cent and a multiplier to age 65 of 769, the claim is for $20,763.
The appellant's method of calculation of her loss of a reasonable expectation of pecuniary benefit is consistent with that outlined by Gleeson CJ in De Sales. However, a number of variables in the appellant's calculation are based on assumptions that have no evidentiary foundation. In particular, Table 9.1 relied on by the appellant for the percentage of partner and child "dependency" is based on the income of the deceased and his or her partner being equal and that income being pooled to pay all the family expenses, including those for the joint benefit of all family members. The facts in this case do not conform to that stereotype (or that of the family the subject of the decision in De Sales).
First, the trial Judge found that the appellant had earned and would continue to earn a significantly greater income than the deceased. That finding is not challenged and is supported by the evidence. The appellant said that when she started work as a patient care assistant at Fremantle Hospital in April 1999 she was employed as a casual worker receiving up to $400 or $500 per week. She acknowledged (at T 69) that she was earning much more money than the deceased. However, whether or not the appellant had and would continue to have a larger income than the deceased is not itself relevant. It is how their funds were or would be applied in fact that is relevant. The evidence in this case is that the appellant and the deceased did not operate as a single economic unit. The incomes of the deceased and the appellant were not completely pooled. Each had outgoings for which they were solely responsible and each made separate contributions to the payment of some household expenses. Further, the appellant said that if the deceased wanted money she would give it to him. The evidence as to the deceased's contribution to household expenses is as follows:
"What happened in relation to payment of household expenses?‑‑‑[The deceased] would give me money weekly, from $200 to $250. That would cover ‑ he would give me the money to pay his mobile phone bill. I would just go and pay it.
What else was that money spent on?‑‑‑Food, electricity, gas, food for the [two] dogs."
The matter was pursued by the trial Judge:
"O'SULLIVAN DCJ: You mentioned in answer to a question from Mr Criddle that the deceased gave you from time to time amounts for household expenses and to pay his mobile phone?‑‑‑Yes.
What were those amounts?‑‑‑His phone bill was always about $200 and over and it was normally probably about $150 a week to 200 maybe.
How often would he give you this money?‑‑‑Pretty much every week."
The appellant confirmed that the deceased provided her with $150 to $200 per week during the 12 months prior to his death. I infer from the appellant's evidence that the deceased's phone bill was at least $200 per month. The appellant paid the rent and mortgage payments and also contributed to other household expenses including food. The trial Judge's finding that the appellant "met the cost of acquiring and keeping [the appellant's house] as well as every day household expenses, albeit with some assistance from the deceased" is open on the evidence. In addition she provided services to the deceased in the form of cooking, cleaning, washing and ironing.
There are two points to note about this evidence. First, the extent to which the appellant benefited during the deceased's lifetime is relevant and often the best evidence in estimating the future provision the deceased would have made: De Sales at [17] per Gleeson CJ and [67] per Gaudron, Gummow and Hayne JJ. Secondly, damages for injury are calculated on the balance of pecuniary gains and losses consequent upon the deceased's death. It is apparent from the evidence that the appellant provided pecuniary benefits (including valuable services) to the deceased during his lifetime which ceased upon his death. However, regard should only be had to actual expenditure saved or financial opportunities that arise as a result of the deceased's death rather than pecuniary benefits to the deceased that have no corresponding cost (actual or opportunity) to the appellant. Regard should not be had to expenses that are constant regardless of the number of people in the household.
These considerations are reflected in alternative methods of calculating pecuniary benefit where incomes are pooled and all expenses paid from the pool. The method adopted in England is to add the two incomes, apply the conventional dependency figure where there is one breadwinner (66 per cent if there are no children, 75 per cent if there are) and deduct the survivor's income (Luntz at [9.3.3]). In Allan v The Commonwealth (1980) 24 SASR 581 the deceased and the claimant pooled their income from which all expenses were paid. Wells J treated the financial benefit received by the claimant from the deceased as roughly equivalent to the amount by which the deceased's contribution to the joint income exceeded the claimant's.
It follows from the trial Judge's findings as to the extent and allocation of their respective incomes that the appellant has not established on the balance of probabilities that she received a net positive pecuniary benefit from the deceased up to the time of his death. To the contrary, the evidence points in the other direction, namely that the balance of pecuniary benefit was in the deceased's favour. That is not a finding as to the deceased's income or capacity to provide but rather a reflection of how he allocated and disposed of his income. This conclusion is not inconsistent with the deceased providing a financial benefit to his children.
However, that is not the end of the matter. Regard must then be had to whether the position would or may have changed in the future. If for example it can be established on the balance of probabilities that the deceased and the appellant would have had children and the appellant would have given up work for a period and become wholly or partially dependent on the deceased, the calculation of the loss must reflect that. If that can not be established on the balance of probabilities, contingencies become relevant. There are positive contingencies for which an allowance must be made and negative contingencies for which a discount will be required. As stated by Gleeson CJ in De Sales at [15], contingencies that are relatively unlikely to occur or their occurrence may be impossible to predict with any accuracy, are provided for by way of a general allowance for the "vicissitudes of life". Where contingencies are likely to occur and are more susceptible to specific calculation, it will be appropriate to apply a specific discount or allowance (as the case may be) for the contingency in question. The trial Judge erred in failing to consider these matters.
The likely period of the appellant's relationship with the deceased is a relevant factor. It impacts not only on the period of the likely pecuniary benefit but is also relevant to possible changes in the extent of any pecuniary benefit to the appellant. The appellant claimed that De Sales is authority for the proposition that there is a presumption that a marriage or de facto union will continue, with the possibility of relationship breakdown being accommodated in the provision for general vicissitudes of life. That is the case for a conventional marriage (in law or in fact) of the type considered in De Sales unless there is evidence that the marriage is likely to fail: De Sales at [16]. If there is evidence of a prospect of failure, the usual course is to make a separate discount for that specific contingency. However, it is not entirely obvious that the High Court's reasoning in relation to a married couple with dependent children that functions as a single economic unit should necessarily apply to the circumstances of this case. Notwithstanding this reservation and the fact that there is little evidence relating to the long‑term prospects of the relationship between the appellant and the deceased, I will assume in the appellant's favour that, but for the deceased's premature death, the relationship would have continued until the deceased was aged 65. However, that finding is of no consequence unless there was a prospect of the deceased providing increased pecuniary benefits to the appellant in the future. The trial Judge found that the appellant would continue to have a significantly higher income than the deceased. The only evidence that supported a possible alteration to the extent of the pecuniary benefit from the deceased to the appellant was linked with their intentions in relation to starting a family. The appellant's evidence was as follows (at T 43):
"Did you have any discussions with [the deceased] about having children?‑‑‑Yes, but things had to be a lot different. The business had to be up and running, he had to be up to support me because I was quite ‑ supporting myself for a long time so I wasn't willing to give up work and end up like half the society."
In my assessment, it is not open on the evidence to find on the balance of probabilities, and the evidence does not justify making a specific allowance for the chance, that the appellant would have become a net pecuniary beneficiary in the relationship. On the appellant's evidence, that possibly was linked with having children which in turn depended upon the deceased establishing and maintaining a successful business. It is one thing to earn a modest income and, as the historical pattern of the deceased's business failures disclose, another to establish and maintain a successful business that generates sufficient income to support a family. Further, a general allowance for the loss of this chance should be offset by a corresponding discount in relation to the potential pecuniary benefits that may arise from the appellant's relationship with Mr Wheatley.
A separate and substantial discount for remarriage or relationship is only warranted where there is evidence that a new relationship has been formed or is proposed and that it will bring financial benefit to the claimant: De Sales. Otherwise, a general discount for contingencies is

the appropriate course. Although there was no evidence as to what if any pecuniary benefit the appellant received as a result of the relationship with Mr Wheatley, the trial Judge inferred that the appellant was receiving and would continue to receive benefits of a financial kind from that relationship. Notwithstanding that Mr Wheatley was in stable employment and received a net weekly wage similar to that of the appellant, I see no basis in the evidence to infer that the appellant was or would be a net pecuniary beneficiary in that relationship unless at some time in the future they decided to have children. The evidence relating to the new relationship does not support a specific substantial discount. However, the possibility of a financially advantageous relationship with Mr Wheatley would attract a general discount equivalent to the general allowance for the possibility that the appellant would become a net financial beneficiary in her relationship with the deceased. Thus, although the trial Judge erred in his approach to the determination of the application, the errors do not alter the outcome. Accordingly, the appeal must be dismissed.

BUSS JA: I agree with McLure JA.