GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
TERESA MARGARET DE SALES APPELLANT
AND
ALBERT INGRILLI RESPONDENT
De Sales v Ingrilli
[2002] HCA 52
14 November 2002 P57/2001
ORDER
1. Appeal allowed in part.
2. Set aside order 2 made by the Full Court of the Supreme Court of Western Australia on 1 December 2000.
3. If, within 28 days of the date of the order of this Court, the parties submit to the Registrar a signed minute of their agreement to the amount for which judgment should be entered, in place of order 2 of the orders of the Full Court, order that, in place of order 2 of the Full Court's order, judgment is to be entered for that sum. If the parties do not, within that time, submit such a signed minute, the matter is to be remitted to the Full Court for further hearing and determination in accordance with the reasons of this Court.
4. Respondent to pay appellant's costs of the appeal.
On appeal from the Supreme Court of Western Australia
Representation:
B L Nugawela for the appellant (instructed by Friedman Lurie Singh)
M J Buss QC with N P Dobree for the respondent (instructed by Hoffmans)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
De Sales v Ingrilli
Damages – Wrongful death of spouse – Basis upon which to assess damages to surviving spouse and dependants – Whether discount for prospect of remarriage should be made – Discount for general contingencies.
Lord Campbell's Act – Compensation to relatives – Damages – Basis upon which to assess damages for spouse and dependants – Whether discount for prospect of remarriage should be made – Whether such consideration is already included in discount for general contingencies.
Precedent – Damages – Whether discount for prospect of remarriage should be made – Whether too speculative – Whether based upon outdated norms – Whether previous expressions of the law regarding such discounts should be reconsidered and re-expressed.
GLEESON CJ. In assessing damages to be awarded to a surviving spouse under fatal accidents legislation, what, if any, account should be taken of the chance of the surviving spouse remarrying and thereby obtaining some financial benefit which offsets or diminishes the claimed loss?
The appellant's husband was killed in an accident on the property of the respondent, in Western Australia, on 12 August 1990. The respondent was found to have been negligent, and the deceased to have been partly to blame. Issues of liability are not presently relevant. The deceased was 31 at the time of his death; the appellant 27. The deceased and the appellant were married in April 1985, when they were 26 and 22. There were two children of the marriage, born in October 1987 and April 1990. From 1985 to 1989, the appellant…
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.
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AGLC
De Sales v Ingrilli [2002] HCA 52
Case
[2002] HCA 52
Decision Date
CaseChat Overview and Summary
The appeal concerned the assessment of damages for the wrongful death of a spouse and parent, brought by the surviving spouse, Mrs De Sales, on behalf of herself and their two children under the *Fatal Accidents Act 1959* (WA). The dispute arose after the primary judge made a five per cent deduction from Mrs De Sales' share of the damages to account for the prospect of remarriage. The respondent, Mr Ingrilli, cross-appealed, arguing for a significantly higher deduction. The High Court of Australia considered whether such a deduction was appropriate and, if so, on what basis.
The central legal issue before the High Court was whether, in calculating damages for a surviving spouse and dependants under the *Fatal Accidents Act*, a deduction should be made for the contingency of the surviving spouse remarrying. This involved considering whether such a deduction was speculative, based on outdated norms, and whether it was already encompassed within a general discount for the vicissitudes of life. The court also had to determine if previous legal pronouncements on this matter required reconsideration.
The High Court, in allowing the appeal in part, determined that ordinarily, no deduction should be made for the prospect of remarriage. This was because such a consideration was too speculative and potentially based on outdated societal norms. The majority reasoned that any such consideration was already implicitly included within the general discount for the vicissitudes of life. The court set aside the order of the Full Court of the Supreme Court of Western Australia regarding the quantum of damages and provided a mechanism for the parties to agree on a revised sum, failing which the matter would be remitted for further determination.
Orders
Orders of the court
1. Appeal allowed in part.
2. Set aside order 2 made by the Full Court of the Supreme Court of Western Australia on 1 December 2000.
3. If, within 28 days of the date of the order of this Court, the parties submit to the Registrar a signed minute of their agreement to the amount for which judgment should be entered, in place of order 2 of the orders of the Full Court, order that, in place of order 2 of the Full Court's order, judgment is to be entered for that sum. If the parties do not, within that time, submit such a signed minute, the matter is to be remitted to the Full Court for further hearing and determination in accordance with the reasons of this Court.
4. Respondent to pay appellant's costs of the appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
(dissent)
GAUDRON, GUMMOW AND HAYNE JJ
The reasoning of the majority was in conformity with the general approach taken in Western Australia and I am not persuaded that it involved any error.Conclusion I would allow the appeal. I agree with the orders proposed by Gaudron, Gummow and Hayne JJ although, for the reasons given, I am of the view that the order to replace order 2 made by the Full Court of the Supreme Court of Western Australia should reflect a discount for remarriage of five per cent and a discount for general vicissitudes of five per cent. The issue in this appeal is whether, in assessing damages to be allowed in an action brought on behalf of a surviving spouse (or de facto spouse) and children under the Fatal Accidents Act 1959 (WA) ("the Fatal Accidents Act") in respect of the wrongful death of the partner and parent, the prima facie value of what is lost should be reduced for the contingency that the surviving partner will remarry. Ordinarily, no deduction should be made on this account, whether as a separate deduction, or as an item added to the amount otherwise judged to be an appropriate deduction for the vicissitudes of life, and in this case there should have been no deduction on this account. The appellant, Mrs De Sales, was born in 1963; her late husband was born in 1959. They married in 1985 and there were two children of the marriage, a daughter born in 1987 and a son born in 1990. Mr De Sales was killed in 1990 in an accident in a dam upon the property of the respondent at Karnup in Western Australia. Mrs De Sales brought an action in the District Court of that State on behalf of herself and the two children in reliance upon the Fatal Accidents Act. However, Mrs De Sales is not the executrix of the will of her husband and no action was instituted by the executor. Nevertheless, no point has been taken respecting the constitution of the action. The issue of liability was tried separately and first. It was resolved eventually when the Full Court of the Supreme Court upheld a decision of the District Court that there was an entitlement to recover two-thirds of damages to be assessed, the deceased having been one‑third to blame by way of contributory negligence. The assessment of damages then came on for hearing in the District Court in 1999. The primary judge (H H Jackson DCJ) sat without a jury. In the course of his reasons, his Honour said:"[I]n my view a modest reduction should be made for the chance of obtaining support from remarriage, and I deduct five per cent. The deduction should only be made from the share of award that is apportioned to [Mrs De Sales]." An appeal and cross‑appeal were taken on various grounds to the Full Court (Wallwork, Parker and Miller JJ)[21]. One ground taken by Mrs De Sales was that the primary judge had erred in making the deduction of five per cent "in the absence of any or adequate evidence (or findings) as to [her] prospects of remarriage, remarriage rates generally or prospects of financial dependency upon remarriage". On the other hand, in the cross-appeal, the respondent contended that the primary judge had erred in making that deduction because the evidence warranted a significantly higher deduction of "(say) 25%".[21]De Sales v Ingrilli (2000) 23 WAR 417.