De Sales v Ingrilli - [1999] WADC 80

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CIVIL

LOCATION: PERTH

CITATION: DE SALES -v- INGRILLI [1999] WADC 80

CORAM: HH JACKSON DCJ

HEARD: 13, 14 AND 15 JULY 1999

DELIVERED : 25 OCTOBER 1999

FILE NO/S: CIV 3442 of 1992

BETWEEN: TERESA MARGARET DE SALES
Plaintiff
AND
ALBERT INGRILLI
Defendant

Catchwords:

Fatal Accidents Act 1959 claim - Widow and two children - Assessment of damages.

Legislation:

Fatal Accidents Act 1959, ss6, 8.

Result:

Damages assessed in the sum of $544,693.00. Apportionment - Plaintiff: $411,858; Tara Marguerite De Sales: $64,260; Jordan Tanis De Sales: $68,575.

Representation:

Counsel:

Plaintiff: B L Nugawela
Defendant: D M Bruns

Solicitors:

Plaintiff: Friedman Lurie Singh
Defendant: Hoffmans

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

Monarch Steamship Co Ltd v A/B Karlshamus Oljefabriker (1949) AC 196
Nguyen v Nguyen (1990) 169 CLR 255
Public Trustee v Paniens [1971] SASR 297
Public Trustee v Zoanetti (1945) 79 CLR 266
Van Gervan v Fenton (1992) 175 CLR 327
Wards & Ors v State of Western Australia (1998) 159 ALR 483

Case(s) also cited:

Biddulph & Lenegan, unreported; FCt of SCt of WA; Library No 990076; 19 February 1999
Dislieff v Connell, unreported; DCt of WA; Library No 970227; 30 July 1997
Frichot v Zalmstra and Dwyer, unreported; DCt of WA; Library No 970158; 15 May 1997
Mobil Oil Corporation v Registrar of Trade Marks (1984) VR 25

HH JACKSON DCJ:

Preliminary

This action, so far as quantum is concerned, was heard before me on 13 to 15 July 1999. I then reserved my decision. On 6 October 1999 I delivered written reasons for decision and heard motions for judgment. Orally I pronounced judgment in terms of the written reasons. I also pronounced certain costs orders. However as a result of submissions then made I reserved the issue of the investment of the sums awarded to the two children of the plaintiff pending clarification of the plaintiff's instructions.
Subsequently I was asked to relist the matter for submissions not only as to that issue but other issues.
On doing so I was informed that the plaintiff sought an order that the sums awarded to the two children be invested with the Public Trustee.
I was also, however, addressed on certain arithmetic and calculation errors found in my original reasons for decision.
Further I was asked to make further costs orders concerning "reserved" costs, and to consider the question of interest in the period of time lost to the plaintiff by this reconsideration.
As no formal judgment had been extracted I indicated that I would reopen these matters, so far as possible consistent with my powers to do so, and issue a new set of written reasons dealing with the issue of investment of the sums awarded to the children and with the arithmetic and calculation issues, and further that I would then hear further submissions as to costs.
I am assisted in terms of reopening these issues by the provisions of the "slip rule", O21 r10 of the Rules of the Supreme Court, and by consideration of the matters and authorities noted under the heading Reopening after reasons for decision in (1999) 73 ALJ 624-626. I accept the submissions by Mr Bruns that in so doing I am not permitted to alter my "methodology" in reaching my conclusions.
The reasons which follow are the reasons rewritten after my consideration of the issues thus raised. The changes made are to be found under the subheadings Fund management fees and Conclusions. I make no further allowance for interest.

Background

The plaintiff was born on 11 February 1963 and married on 13 April 1985. There were two children of the marriage, Tara Marguerite De Sales born 7 October 1987 and Jordan Tanis De Sales born 24 April 1990. The plaintiff's husband died in an accident in a dam owned by the defendant on 12 August 1990 aged 31. This action is brought by the plaintiff on behalf of herself and the two children of the marriage pursuant to ss6 and 8 of the Fatal Accidents Act, 1959. The plaintiff is not the executrix of the will of her late husband and no action has been brought by the executor of the will.
The Court is empowered to award "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": s6(2) The amount of damages recovered is required to be divided among the deceased's relatives in such shares as the Court directs: s6(4).
The damages are assessed by reference to the reasonable expectation that the deceased would have provided a material benefit had he not died, balanced against the pecuniary benefits arising on the death: Public Trustee v Zoanetti (1945) 79 CLR 266.
Although only one action is brought the dependants should be individually compensated for pecuniary loss resulting from the death, whether actual or prospective, of which there was a reasonable expectation at the date of death referable to the relationship between the claimant and the deceased. One method is to assess one lump sum using a multiplier determined with reference to the date of death and to divide the result into pre-trial and post-trial components, allowing interest on the former.

Liability

Liability was tried separately and was eventually resolved when the Full Court of the Supreme Court upheld the decision of the District Court apportioning liability two-thirds against the defendant.

Evidence

The plaintiff's evidence incorporated a proof of evidence, Exhibit 1, by consent. A chronology of relevant events is Exhibit 6. The deceased was born in 1959 and the plaintiff in 1963. They met in 1983 by which time the deceased was qualified as a Bachelor of Business (WAIT), Certified Practising Accountant and Tax Agent. The plaintiff is a computer data entry operator. They married in April 1985 and lived in a home he had purchased. In early 1986 the deceased commenced employment with the Lombardo group of companies. Jointly they paid off the matrimonial home. In late 1986 the plaintiff ceased employment and in early 1987 commenced full time study hoping to qualify in interior design. After the birth of the first child in October 1987 she returned to study part-time and in November 1988 to part-time work, 10-15 hours per week. In December 1989 the plaintiff ceased work and in April 1990 the second child was born. They purchased land at Samson on which to build. The plaintiff later returned to study but ceased after her husband's death. The deceased was posthumously awarded a Fellowship of the Taxation Institute of Australia.
Since the death the plaintiff essentially has worked full-time as a secretary or office worker and now as a stock controller.
Each of them came from "strict Catholic working class backgrounds", as she described them.
They were interested in restoring old homes and restored the matrimonial home in which they were living when Mr De Sales died in 1990. He did a considerable amount of restoration and renovation work, gardening and domestic duties in his spare time before his death. They intended to sell the house, building a larger one on the block they had purchased.
The deceased was a good husband and father and a loyal and ambitious employee, and financially astute.
The plaintiff has not remarried since her husband's death in 1990 and she has no plans to remarry, although not resolved against it. Her aim is to educate her children to University and then to travel and study in Europe. The daughter has expressed a wish to be a teacher.
Mr M A Mitchenson gave evidence and a proof of evidence made by him was admitted by consent as Exhibit 7. He is currently 40 and a financial controller for the Lombardo group of companies, a position he also held from 1982 to 1986 at the end of which the deceased took over the position until his death in 1990. At that time Mr Mitchenson replaced the deceased and was paid $60,000 gross per annum. At July 1997 his salary had increased to $71,200 gross per annum, plus six per cent superannuation contributions and the provision of a motor vehicle, all expenses paid. In May 1998 this increased to $73,336 plus superannuation and vehicle and together also with professional subscriptions of $625 per annum. In July 1999 he valued the vehicle provision for fringe benefits tax purposes at a grossed up value of $15,285.04: Exhibit 8.
The evidence of some witnesses was tendered by the admission of a proof of evidence by consent.
Mr Anthony Terribile, Exhibit 10, a certified practising accountant, was a school friend of the deceased and they studied together at university. He described the deceased as kind and gentle, in good health and bright. They later remained in contact and the deceased sent clients for taxation advice.
"Based on my experiences in the area of public accounting, I would say that if Frank followed a career path like mine, he would be earning well over $100,000 per annum (earnings before income tax) and perhaps even up to $150,000 per annum."
Mr G Paganoni's evidence is Exhibit 11A. He is a certified practising accountant. He describes the deceased as "a very sound and methodical financial controller", pleasant yet very business-like, ambitious and quietly spoken, "a very dedicated worker … able to work under immense pressures."
Mr G Pittorini's evidence, Exhibit 12, is also that of a school friend of the deceased who also became a certified practising accountant.
"If Frank was a partner in a public accounting firm today (had he chosen that career path) he would be earning about $100,000 before income tax. Frank was very dedicated at school and so I think he would have been a good public accountant."
Mr M Lombardo, the managing director of companies in the Lombardo group of companies gave evidence both orally and by the admission into evidence by consent of a proof of evidence, Exhibit 15. He found the deceased to be a capable professional financial controller and company secretary. In a reference given in August 1991 and annexed to his proof of evidence Mr Lombardo said:
"Frank de Sales had responsibility for all accounting and financial matters for the group and in that role displayed an extremely good knowledge of these areas of business. He was a hard working man and highly motivated and I am firmly of the view that he would have had an extremely successful career in his chosen profession had his life not been tragically cut short.
I believe that Frank was looking to or had already undertaken courses and further studies with a view to enhancing his qualifications and knowledge.
Within my group of companies Frank was at the pinnacle as far as his areas of expertise are concerned, and would probably have been looking to move on to a larger organisation where he would have had a greater scope to utilise his talents to the fullest.
Frank was an extremely good accountant who was well liked and respected by all those who worked with him, and had a great deal to offer any organisation."
Essentially his proof of evidence made in 1997 reasserted this. It added:
"If Frank was around today, all things being equal, he would earn at least $71,000 per annum as wages, if not more. This figure is based on what I am currently paying an employee today, in a similar position as what Frank was in prior to his untimely death. In addition, he would receive a fully maintained motor vehicle (costing between $35,000 to $45,000) renewable every 2 years, plus a contribution towards superannuation at the rate of 6% of gross salary per annum, the use of a mobile telephone (all expenses paid), memberships of professional accounting bodies and periodicals ... . These are all the emoluments I am presently paying a financial controller today, performing the type of job that Frank was performing prior to his death. If Frank remained in employment after 1990 and continued to perform as well as he had been performing, he certainly would have been promoted within my organisation and could have occupied positions such as director of some of the companies. In that event, he would have earned significantly in excess of what I am paying a financial controller today."
Giving oral evidence, Mr Lombardo confirmed the deceased's precision and promptness and rated him as the best financial controller he had had.
Since the death of the deceased the Lombardo group has grown. Apart from that, however, it seems that the deceased had probably gone as far in the organisation as he could at that time. His replacement, Mr Mitchenson, was paid more for strategic reasons rather than for reasons personal to him or the deceased. Mr Lombardo's evidence strongly suggested that but for his premature death the deceased was likely to have received a significant rise in income within a reasonably short period.
A secretary and personal assistant to Mr Lombardo, Ms E Searle, gave evidence by the admission of a proof of evidence, Exhibit 13. She testifies to the deceased's hard work and long hours, his dedication both to his work and his family.
An affidavit sworn by Mr M M Dominkovich to which is annexed a proof of evidence, was admitted by consent as expressing the opinion of Mr Dominkovich. He was manager of Challenge Bank, Fremantle from 1988 when the deceased was financial controller for the Lombardo group, a large and valued client of the bank.
"Frank was superb in his dealings. He was very disciplined and capable and for the size of operations he was running, he was very very efficient.
In my role as a business banking manager, I see many people in the type of job that Frank performed. I formed the impression that Frank really knew what he was doing. I have no problems at all saying that Frank would have been in the top 5% of all financial controllers with whom I have had dealings. …
I usually had professional dealings with Frank once or twice a week, until his death. …
Frank and I developed a social friendship between 1988 to 1990 --- but our professional relationship always came first. … As a person Frank possessed the utmost absolute integrity. He spoke very much about his family and I gained the impression that he lived for his children and wife. I didn't meet his wife Teresa De Sales until many years after Frank died."

Past Loss of Dependency - Plaintiff's Claim

For the fortnightly period from 1 July to 22 August 1990 the deceased's gross income was $6,615.40, with tax deducted of $2,095.40: Exhibit 9. That is an annual net income of $29,380.
The plaintiff claims loss of dependency for herself and both children on the basis that for 2.5 years or thereabouts until 28 February 1993 from the time of his death the deceased would have continued to receive a net income of $29,380 together with the value of the fully serviced motor vehicle, say $15,000 per annum. No claim is made for loss of superannuation benefits for this period.
Thereafter the plaintiff claims on the basis of a net salary equal to the commencing salary paid to Mr Mitchenson, $40,136 per annum net together with the loss of the use of the vehicle and loss of superannuation benefits at five per cent until 30 June 1995 and at six per cent until 30 June 1996. Thereafter the plaintiff claims on the basis of an increased annual net salary of $45,857.80 (that paid at the time to his successor) together with loss of the use of the vehicle, loss of superannuation benefits at six per cent and also loss of professional subscriptions of $600 per annum until 30 June 1998.
Thereafter until trial loss of dependency is claimed on the basis of the net salary paid to the deceased's successor at the time, $46,957.87, together with loss of the use of the vehicle, loss of superannuation benefits at seven per cent and loss of professional subscriptions, $625.
The affidavit of Juliana Stack, manager of Research and Surveys at the Australian Institute of Management [New South Wales], sworn 13 July 1999 was admitted by me as Exhibit 16 under the provisions of s79C of the Evidence Act. The annexed explanatory notes concerning the Institute's Annual National Salary Surveys and the tabulated survey results dealing with a number of years were also so admitted although at trial I gave differing rationales in each case.
The annual survey results have been published on an annual basis since 1964; and
"… are available for use by corporate entities across Australia as a benchmark for determining whether the remuneration packages offered by them for particular occupational classifications are comparable with those being offered for those occupational classifications in the general labour marketplace."
They are based on actual answers to detailed questionnaires completed by the sample population, before being collated and statistically analysed. The 1998 survey questionnaire was forwarded to approximately 800 companies and the 1998 National Salary Survey was prepared from the information completed by the 492 respondent companies.
The smallest of the range of companies surveyed in 1998 had annual turnovers in the range of up to $15m and up to 80 employees. The largest had annual turnovers in the range of $181m or more and 1,601 or more employees.
The survey results support the evidence of Mr Mitchenson that the value to the deceased of the supply by his employer of a fully-serviced motor vehicle was in excess of $15,000 given that the liability for fringe benefits tax lies upon the employer.
I think it appropriate, however, to significantly reduce the value attributed to use of the vehicle because of the component attributable thereto for business use, including travel to and from work.
I do not regard the loss of professional subscriptions to be recoverable in the hands of the plaintiff.
The plaintiff's evidence is that prior to his death she and her husband pooled their incomes and expenditures. Her summary of expenditures for herself and the children for 1991 is Exhibit 2A. From these she estimated the expenditures for 1990, the documentation having been lost or mislaid upon her husband's death. The estimates totalling expenditure of $34,730.75 are Exhibit 2B. The 1991 figures are lower, the plaintiff suggested, because after the death of her husband and the sale of the matrimonial home, she had a house constructed on their other block while she lived with her parents, thus saving money. The 1990 figures represent expenditures for herself, her husband and the children until his death and thereafter for herself and the children.
The plaintiff also claims loss of past dependency for domestic and household services. The plaintiff's evidence, and that of others, which I accept, is that prior to his death the deceased was a devoted family man who spent time caring for the two children in various ways. However, nowhere in the evidence was the time so spent quantified, nor the nature of the "services" gratuitously so provided carefully elaborated other than to say that he cared for the children at times when the plaintiff was studying and at times fed them in the morning or took them to his office at weekends. She claims for loss of child care services which he would have provided at the rate of $11.50 per hour up to the time at which the younger child of the marriage would have turned 15. The plaintiff claims two hours per day under this head. Given the paucity of evidence on these matters and the limiting factors spelled out in Nguyen v Nguyen (1990) 169 CLR 255, Van Gervan v Fenton (1992) 175 CLR 327 and other cases as to the services required to satisfy the needs created by the loss of the deceased and given that the need for such services diminishes as children mature, I think the plaintiff's claim is overstated.
The plaintiff then claims interest at five per cent on these items to trial. Four per cent, I think, a reasonable figure.
One common approach to the issue is to adopt the broad or generalised percentage approach to loss of dependency set out in Table 9.1 in Luntz Assessment of Damages for Personal Injuries and Death, 3rd Ed. On the resulting figures concerning household expenditures in 1990 and 1991, the plaintiff claims a percentage loss of dependency, using Table 9.1, of 81 per cent, the upper limit of the range where a deceased on an average income leaves an adult and two child dependants. This is argued on the basis of the deceased being a devoted family man who acquired property, planned private and tertiary education for his children and did not spend on habits such as tobacco and alcohol and on the plaintiff not working or having definite plans to do so. The children were of course, still both of school age at the time of trial.

The usual approach is to make an assessment of loss in respect of the claimants as a whole and then to apportion the loss among the claimants, the value of shared benefits such as housing or electricity being divided amongst the claimants without regard to the fact that the deceased might also have benefited from the expenditure had he lived. Another is to attempt an individual assessment. As Luntz makes clear his table was prepared by an actuary from the Australian Bureau of Statistics Household Expenditure Survey 1984.
"It shows the range of expenditure between the fifth and sixth decile groups. In determining the percentages of dependency it has been assumed that expenditure on current housing costs, fuel and power, and on household equipment and operation will be the same regardless of the number of members of the household (eg mortgage and household insurance costs do not depend on the number of people in the household). It has also been assumed that expenditure on alcohol and tobacco relates to adults only in equal shares and that all other expenditure relates to all members of the household, twice as much being expended on each adult as on each child (eg 5/7 of each item of expenditure will relate to a wife and her three children in a family consisting of 2 adults and 3 children, 4/6 of each item in a family consisting of 2 adults and 2 children, etc)."

Future Loss of Dependency - Plaintiff's Claim

The plaintiff then claims until 30 June 2002 on the basis of a continued net income of the deceased comprising net salary of $46,957.87 plus loss of fully serviced car, $15,000 per annum, plus loss of superannuation benefits at seven per cent until 30 June 2000 and thereafter at eight per cent, loss of professional subscriptions of $625 per annum, and loss of domestic and handyman services on the same basis as that claimed for the period prior to trial.
The plaintiff did not argue on the basis of the evidence of Mr Pittorini or Mr Terribile that I should assume an income based on public accountant earnings or that I should adopt figures from the Australian Institute of Management's annual national surveys. Mr Bruns stressed that the deceased was at the relevant times in any event, earning less than the A.I.M. survey results would suggest.
Then until 30 June 2005 the loss of superannuation benefits is claimed at nine percent. Since the younger child attains 15 years on 24 April 2005 no claim for future gratuitous services for the children is claimed thereafter. The plaintiff also claims loss of the deceased's services as a handyman at the rate of 6.5 hours per week to age 50 in March 2009.
The same rate of dependency, 81 per cent, is claimed until the younger child presumably completes tertiary education at 24 years of age.
Thereafter the plaintiff claims 66 per cent loss of dependency, being the mid-point in Luntz' Table 9.1 for adult dependants with no dependant children.
The plaintiff claims loss of dependency to 2029 at which age the deceased would have been 70 but in the last five years at a simple rate of $60,000 per annum net income, using the approach adopted in Public Trustee v Paniens [1971] SASR 297.
In determining a retirement age attributable to the deceased the plaintiff refers to the deceased being in good health, a non-smoker and non-drinker, very career-minded, with an actuarial life expectancy at trial of 37.41 years. In addition, the plaintiff says, government policy is towards encouraging self-supporting retirement, leading many to work past 65 years, the Lombardo group of companies can be expected to survive Mr Lombardo's retirement, and the claim makes no allowances for increases in remuneration say, by directors' fees or promotion.
Usually in my experience counsel rely on the apparent presumption that persons will remain in the workforce until the age of 65 unless either that fact or some other intended age of retirement is expressly given in evidence. It has not been my experience that recourse is had to statistical evidence on the matter, although such evidence is readily available.
The Court is entitled to rely upon its own (historical) knowledge and research in addition to taking judicial notice of the facts of history: Ward & Ors v State of Western Australia (1998) 159 ALR 483 referring to Monarch Steamship Co Ltd v Karlshamns Oljefabriker A/B (1949) AC 196 .
In an article entitled Older Workers, Families and Public Policies published in the current issue of the Australian Institute of Family Studies' journal, Family Matters, Issue 53, Winter 1999, Ilene Wolcott sets out figures published by the Australian Bureau of Statistics showing that whereas in 1969 some 90 per cent of Australian men were labour force participants at ages from 55 to 59, slightly less than 70 per cent at ages 60 to 64 and just over 25 per cent at ages from 65 and older, by 1999 these percentages had fallen to just over 70 per cent, about 45 per cent and less than 10 per cent respectively. Given that I am not prepared to find that in over 20 years time the plaintiff would have remained in the work force past 65 years.
Mr Nugawela does press for contingencies to be treated as positive, partly on the basis of the deceased's potential to achieve higher incomes. A further 10 per cent is claimed.
It is also argued that,
"… there being no evidence of remarriage rates generally or their specific applicability, nor any evidence of the prospects of remarriage (let alone questions of financial dependancy, if any, upon remarriage), there is no need to isolate the widow's share of the damage (from which, traditionally, deductions on account of financial dependancy upon the prospect of remarriage, are made)."
Of course, to the various claims must be applied the appropriate six per cent multiplier.

Defendant's Submissions

Mr Bruns argues that the plaintiff has adopted too mathematical an approach to a situation in which what is being valued is loss of the chance of support. In addition, however, he argues that while the approach of adopting a figure from Luntz' Table 9.1 may be appropriate in some cases, it must yield to the facts of the particular case. The figures for 1990 and 1991 family expenditures produced by the plaintiff show a dependency rate of the plaintiff and her children of only 56 per cent: see Table 3 entitled "Plaintiff's Particulars of Actual Family Expenditure from Pooled Incomes", although the plaintiff's evidence and chronology suggests that the plaintiff in fact did not work at paid employment after December 1989. However, the figures are self-evidently incomplete and atypical on their face. The item for food for 1991 is only $106.90, compared to $5,200 in 1990. Mortgage payments are $482 compared to $7,440, no doubt because the mortgage was repaid.
In any event, he argues that both the company supplied motor car and professional subscriptions should be ignored, there being no evidence of the use or value to the plaintiff and children and that there is no adequate basis to assume that either or both children would achieve tertiary education and be dependent to age 24. Similarly, employer superannuation contributions are not recoverable until age 55 or retirement and there is no evidence as to the use to which the accumulated superannuation fund would then have been put by the deceased.
In addition, he says there is a paucity of evidence as to the domestic child care and handyman services provided by the deceased, whether the couple were likely or planned to have further children and little about the likelihood of the plaintiff returning to work. At the time of the deceased's death the plaintiff had a young baby and was studying interior design. He does, however, concede that a modest global amount should be allowed for gratuitous services lost.
Mr Bruns also drew attention to some relatively minor date, arithmetic and calculation discrepancies in the plaintiff's calculations.
Given the plaintiff's age he argues there should also be a significant discount for the possibility of remarriage.
In addition, the contingencies of illness, early death and unemployment must be considered.
The issue of discount for the contingencies and vicissitudes of life has two aspects - those which might have affected the deceased had he lived and those which have affected or might affect the claimant dependants. However, in the latter case the courts traditionally exclude a number of possibilities while having regard to others. Thus the possibility of the widow's remarriage is taken into account while the possibility that she may have a revived capacity to earn is not, nor are actual earnings. The plaintiff at trial was only 36 and although almost nine years has passed since the deceased's death I think some discount must, on the case law authorities, be made under this remarriage heading, much criticised though the principle is. I limit that to five per cent. It would appear that in principle the earnings of a dependent wife after the date of her husband's death are not to be taken into account in relation of damages: Carroll v Purcell (1961) 107 CLR 63. In any event it was the evidence of the plaintiff that she was not working at the time of her husband's death. She had two young children. In those circumstances I do not reduce the award for benefit she would have received had she returned to work.
Gratuitous services by the deceased lost to the claimants are allowed but only relatively nominal sums for loss of the intangible benefits of parental care and nothing for solatium or emotional suffering.
Similarly, certain benefits accruing to the claimants as a result of the death are set off against damages but others are not. Often benefits consist of the accelerated benefits of the value of money or property inherited from the deceased. The plaintiff received the entire distribution of her husband's estate: see Exhibits 3A-C. It comprised the land and house being the matrimonial home, together with his half interest in the land upon which the new house was later built, and proceeds of his life assurance. However, property that was available and enjoyed by the relative during his/her lifetime and would have been enjoyed in the future, such as the matrimonial home where the relative is a surviving spouse, will not be taken into account as a deduction.
The defendant argues that the receipt of the new house should be regarded as an accelerated benefit. I am, however, of the view that there is no basis for any reduction on account of accelerated benefits. The matrimonial home and furniture would have been available to the plaintiff to reside in and use with the deceased. No doubt but for his death he or they would have paid off any mortgage incurred on the new house when built and resided therein. The life assurance benefits are the subject of s s5(2) of the Fatal Accidents Act.

Funeral Expenses

The plaintiff, and the deceased's estate on her behalf, paid funeral expenses of $4,495. A memorial cost a further $4,600 and a grant of right of burial or Cemetery Board fees, $540. See Exhibit 4. The Cemetery Board fees of $540 I do not allow as they relate to the future remains of the plaintiff.
The plaintiff claims these together with interest thereon from 20 November 1990 and 13 March 1991 respectively at five per cent per annum. The funeral costs, it seems, included a service fee of $1,435, casket $1,280 and incidental expenses. However, the funeral expenses may well include provision of some funeral cars for family members.
The defendant argues that the cost of a headstone is not recoverable under the statutory provisions. The authorities seem, however, now to allow a simple headstone. I allow the headstone cost, plus the funeral service, casket fees and three-quarters of the incidental expenses, together with interest.

Apportionment

The apportionment of damages as between the plaintiff and her two children is necessary.
Although some indication was given by Mr Nugawela that statistical evidence would be sought to be led as to the cost of raising children that course was not pursued. However, such evidence is readily available, although the difficulty and complexities of the exercise and the resulting uncertainties should not be underestimated.
Two articles published in the current issue of the journal of the Australian Institute of Family Studies, Family Matters, issue 53, Winter 1999 at pp62-76, discuss the present cost of children in Australia. Both make the complications and difficulties clear. The Institute has decided to cease publication of the well-known updated figures based on Lovering's 1982 Basket of Goods Approach and those based on Lee's 1989 Expenditure Survey Approach because of economic changes since those original figures were produced and the use of more subtle techniques.
It is I think fair, however, to conclude that using those approaches and the newer approaches discussed therein the cost to a middle income family of a young child can currently be put in a weekly range of between $55, where housing, transport, school fees and uniforms, child care and medical and dental expenses are excluded, and up to $190 where they are included and that the cost of two such children is about 55 per cent greater than the cost of one. These costs increase as children become older. I allow a present figure of $100 in respect of each child.

Fund Management Fees

While a perfunctory attempt was made to include in the claim the cost of fund management fees assuming management thereof by the Public Trustee, there is no evidentiary basis before me upon which any assumption or finding could be made that the plaintiff will not be ready, willing and able to manage the award made to her personally or those made to the children of the marriage. After trial I thought Mr Nugawela had abandoned the claim for fund management fees on that basis.
I am now informed however that insofar as the award of damages in favour of the two children of the marriage is concerned the plaintiff's wish and instructions are that those funds be invested with the Public Trustee. That of course is consistent with O70 r14 of the Rules of the Supreme Court and I accept that that order should be made.
Mr Nugawela says he did not, or did not intend to, abandon the resulting claim to fund management fees of 1.25 per cent of the capital fund in each case. As this confusion or error seems to have resulted from my misunderstanding of his position I think I am empowered, and should exercise my power, to allow that amount in each case, as I would have done if the matter had been more clearly before me originally.

Conclusions

In my view the approach taken on behalf of the plaintiff is in some areas, such as future income, too arithmetic, as Mr Bruns argues, but in others lacks detail. I am unable arithmetically to calculate, for example, either loss of gratuitous child care or handyman services or the precise value of the motor vehicle. In the absence of more detailed evidence of family expenditures, I am content to use the Table 9.1 in Luntz as a general guide and to apply it to what I think to be a fair assessment of the plaintiff's economic value to the claimants.
Assuming a net income at trial equal to Mr Mitchenson's, adding a modest amount for loss of use of a motor vehicle provided by the employer, and loss of superannuation benefits and a modest amount for gratuitous services to age 50 and discounting for the period between death and the achievement of such an income by the deceased, I assess the claim on a lost net present annual figure of $60,000, or in weekly terms, $1,150.
Taking into account all of the evidence and making use of Table 9.1 of Luntz" Assessment of Damages for Personal Injuries and Death (3rd Ed) at 396, in my view it would be reasonable to postulate a past and future loss of dependency of 75 per cent.
The deceased was 31 years of age at his death. If he had not died the plaintiff would have been dependent on him until he reached the age of 65 years and the children until each reached say, 22 years. The multiplier on the six per cent weekly discount tables for a period of 34 years is 772. I calculate the discounted value of 75 per cent of $1,150 per week for 34 years from date of death as follows:
75 per cent x 772 x $1,150 = $665,850.
Given my findings I do not discount for the usual contingencies so far as the deceased is concerned but nor do I add a premium.
The deceased's children would have received financial benefits from the deceased until, say, the age of 22 or for about 19 years for Tara and 22 years for Jordan. At $100 per week each this would represent about $60,000 ($100 x multiplier of 600) for Tara, and $64,700 ($100 x multiplier of 647) for Jordan. These sums must be deducted from the overall dependency amount of $665,850.
Luntz (supra) at 9.3.12, suggests that there is some doubt as to whether or not loss of parental support, guidance and training can be claimed in an action of this nature. However, I think on balance there should, although the sum awarded should be low. I allow the sum of $10,000 to Tara and the same for Jordan under this heading.
As I have said, in 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 the plaintiff.
It follows that the award should be formulated prior to apportionment as follows:
Tara -
for loss of pecuniary benefits  $60,000
for loss of parental guidance   10,000
$70,000
I allow interest on that sum as follows:
$70,000 x 4/100 x 9 years = $25,200                    25,200
$95,200
Jordan -
for loss of pecuniary benefits  $64,700
for loss of parental guidance   10,000
$74,700
I allow interest on that sum as follows:
$74,700 x 4/100 x 9 years = $26,892   26,892
$101,592
Mrs De Sales -
For loss of pecuniary benefits (from the sum of $665,850) must be deducted awards of $95,200 and $101,592 to Tara and Jordan, leaving a balance of $469,058. From that amount must be deducted a contingency of five per cent for the prospect of remarriage, leaving $445,605. I add to that $8,650 for funeral expenses, a total of $454,255.
I allow interest on that sum as follows:
$454,255 x 4/100 x 9 years = $163,531, a total award to Mrs De Sales of $617,787

Apportionment for issue of liability

One third is to be deducted from the award in respect both of the plaintiff personally and each child of the marriage by reason of the findings on liability.
That reduces the final awards to the following:
Tara       $63,467.00 plus 1.25 per cent =     $64,260.00
Jordan     $67,728.00 plus 1.25 per cent =     $68,575.00
Mrs De Sales  $411,858.00
Total  $544,693.00