De Sales v Ingrilli

[2000] WASCA 374

DE SALES -v- INGRILLI [2000] WASCA 374

Reported Decision:	(2000) 23 WAR 417
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 374
Case No:	FUL:174/1999	Heard:	2 JUNE & 28 JULY 2000
Coram:	WALLWORK J PARKER J MILLER J	Delivered:	1/12/00
No of pages:	41	Judgment Part:	1 of 1
Result:	Appeal allowed Award of $609,399 substituted for award of $544,693 Cross appeal allowed on issue of funeral expenses
PDF Version

Parties:	TERESA MARGARET DE SALES ALBERT INGRILLI
Catchwords:	Damages Fatal accidents action Proper basis upon which to assess past and future loss Allowance for dependency Discount for prospect of remarriage Whether allowance should be made for parental guidance Whether allowance should be made for prospective earnings after deceased's normal age of retirement Proper allowance for funeral expenses Whether allowance should be made for simple headstone
Legislation:	Fatal Accidents Act 1959, s 5(1) Law Reform (Miscellaneous Provisions) Act 1941, s 5
Case References:	Biddulph v Lenegan, unreported; FCt SCt of WA; Library No 990076; 19 February 1999 Black v Motor Vehicle Insurance Trust [1986] WAR 32 Bowen v Tutte (1990) A Torts Rep 81-043 Bresatz v Przibilla (1962) 108 CLR 541 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Cookson v Knowles [1977] QB 913 Cunningham v Nominal Defendant (1970) 17 FLR 61 Foyster v Goynich [1984] WAR 80 Gammell v Wilson [1982] AC 27 Goldstein v Salvation Army Assurance Society [1917] 2 KB 291 Hamlyn v Hann & Anor [1967] SASR 387 Henderson v Oswald [1965] WAR 54 Hermann v Johnston [1972] WAR 121 Jenkins v Harrison [1964] VR 637 Jongen v CSR Ltd (1992) A Tort Rep 81-192 Kember v Thackrah [2000] WASCA 198 Key v Commissioner for Railways (1941) 41 SR (NSW) 60 Knight v Anderson (1997) 17 WAR 534 Knight v Anderson (1997) 17 WAR 85 Lamb v Southern Tablelands County Council (1988) A Tort Rep 80-220 Malec v Hutton Pty Ltd (1990) 169 CLR 638 Matthew v Floor [1939] SASR 389 McDonald v Hughes [1957] St R Qd 448 Medlin v The State Government Insurance Commission (1995) 182 CLR 1 Mills v Shire of Mundaring, unreported; FCt SCt of WA; Library No 970403; 15 August 1997 Morris v Zanki (1997) 18 WAR 260 Poseidon Ltd & Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 Ruby v Marsh (1975) 132 CLR 642 Stanton v Ewart F Youlden Ltd [1960] 1 All ER 429 State Government Insurance Office (Qld) v Biemann (1983) 154 CLR 539 Tilbee v Wakefield [2000] WASCA 143 Watson v Burley (1962) 180 CLR 635 Zotovic v Dobel Boat Hire Pty Ltd (1985) 62 ACTR 29 Australian Telecommunications Commission v Parsons (1985) 59 ALR 535 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 Charleston v Smith [1999] WASCA 261 Dislieff v Connell, unreported; DCt of WA; Library No D970227; 30 July 1997 Frichot v Zalmstra & Anor, unreported; DCt of WA; Library No D970158; 15 May 1997 Heffernan v Occidental Minerals Corporation of Australia [1978] 2 NSWLR 412 Jacobs v Varley (1976) 9 ALR 219 Marsh v Absolum [1940] NZLR 448 McIntosh v Williams [1979] 2 NSWR 543 Nguyen v Nguyen (1990) 169 CLR 255 O'Brien v McKean (1968) 118 CLR 540 Pope v Ewendt (1977) 17 SASR 45 Smith v NSW Bar Association (No 2) (1992) 176 CLR 256 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 Turner v Owen (1984) A Torts Rep 80-667 Van Gervan v Fenton (1992) 175 CLR 327 Willis v The Commonwealth (1946) 73 CLR 105

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : DE SALES -v- INGRILLI [2000] WASCA 374 CORAM : WALLWORK J

PARKER J
MILLER J

HEARD : 2 JUNE & 28 JULY 2000 DELIVERED : 1 DECEMBER 2000 FILE NO/S : FUL 174 of 1999 BETWEEN : TERESA MARGARET DE SALES

Appellant

AND

ALBERT INGRILLI
Respondent

Catchwords:

Damages - Fatal accidents action - Proper basis upon which to assess past and future loss - Allowance for dependency - Discount for prospect of remarriage - Whether allowance should be made for parental guidance - Whether allowance should be made for prospective earnings after deceased's normal age of retirement - Proper allowance for funeral expenses - Whether allowance should be made for simple headstone

Legislation:

Fatal Accidents Act 1959, s 5(1)

Law Reform (Miscellaneous Provisions) Act 1941, s 5

Result:

Appeal allowed

(Page 2)

Award of $609,399 substituted for award of $544,693
Cross appeal allowed on issue of funeral expenses

Representation:

Counsel:

Appellant : Mr B L Nugawela
Respondent : Mr M J Buss QC

Solicitors:

Appellant : Friedman Lurie Singh
Respondent : Hoffmans

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

Biddulph v Lenegan, unreported; FCt SCt of WA; Library No 990076; 19 February 1999
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) A Torts Rep 81-043
Bresatz v Przibilla (1962) 108 CLR 541
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Cookson v Knowles [1977] QB 913
Cunningham v Nominal Defendant (1970) 17 FLR 61
Foyster v Goynich [1984] WAR 80
Gammell v Wilson [1982] AC 27
Goldstein v Salvation Army Assurance Society [1917] 2 KB 291
Hamlyn v Hann & Anor [1967] SASR 387
Henderson v Oswald [1965] WAR 54
Hermann v Johnston [1972] WAR 121
Jenkins v Harrison [1964] VR 637
Jongen v CSR Ltd (1992) A Tort Rep 81-192
Kember v Thackrah [2000] WASCA 198
Key v Commissioner for Railways (1941) 41 SR (NSW) 60
Knight v Anderson (1997) 17 WAR 534
Knight v Anderson (1997) 17 WAR 85
Lamb v Southern Tablelands County Council (1988) A Tort Rep 80-220
Malec v Hutton Pty Ltd (1990) 169 CLR 638
Matthew v Floor [1939] SASR 389
McDonald v Hughes [1957] St R Qd 448


(Page 3)

Medlin v The State Government Insurance Commission (1995) 182 CLR 1
Mills v Shire of Mundaring, unreported; FCt SCt of WA; Library No 970403; 15 August 1997
Morris v Zanki (1997) 18 WAR 260
Poseidon Ltd & Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
Ruby v Marsh (1975) 132 CLR 642
Stanton v Ewart F Youlden Ltd [1960] 1 All ER 429
State Government Insurance Office (Qld) v Biemann (1983) 154 CLR 539
Tilbee v Wakefield [2000] WASCA 143
Watson v Burley (1962) 180 CLR 635
Zotovic v Dobel Boat Hire Pty Ltd (1985) 62 ACTR 29

Case(s) also cited:

Australian Telecommunications Commission v Parsons (1985) 59 ALR 535
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Charleston v Smith [1999] WASCA 261
Dislieff v Connell, unreported; DCt of WA; Library No D970227; 30 July 1997
Frichot v Zalmstra & Anor, unreported; DCt of WA; Library No D970158; 15 May 1997
Heffernan v Occidental Minerals Corporation of Australia [1978] 2 NSWLR 412
Jacobs v Varley (1976) 9 ALR 219
Marsh v Absolum [1940] NZLR 448
McIntosh v Williams [1979] 2 NSWR 543
Nguyen v Nguyen (1990) 169 CLR 255
O'Brien v McKean (1968) 118 CLR 540
Pope v Ewendt (1977) 17 SASR 45
Smith v NSW Bar Association (No 2) (1992) 176 CLR 256
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Turner v Owen (1984) A Torts Rep 80-667
Van Gervan v Fenton (1992) 175 CLR 327
Willis v The Commonwealth (1946) 73 CLR 105

(Page 4)

1 WALLWORK J: The husband of the appellant (plaintiff) died in an accident when he was 31 years of age. His widow and children claimed damages arising from his death and these reasons are concerned only with the assessment of those damages. Liability has already been decided.

2 In calculating the damages due to the appellant and the children, the learned Judge accepted that the deceased would have worked between the age of 31 years (when he died) and 65 years, which is a period of 34 years. His Honour applied a 6 per cent discount multiplier to the whole 34 year period in order to determine the loss of dependency.

3 The first ground of appeal argued (2.1) was that the learned Judge failed to make separate calculations for the losses occurring prior to the trial (a period of approximately 8.87 years) and the losses occurring after the trial to the time when the deceased would have reached 65 years of age. It was submitted that the calculation of the damages by the method adopted by the learned Judge had produced a sum in the region of $340,000 less than would have been calculated had the calculation been done in the normal manner.

4 Leaving aside the difference in the amounts which are arrived at by the different methods, the rationale behind calculating the damages separately for the pre-trial and post-trial periods is that if that is not done, amongst other things, it results in the awarding of interest on the sum awarded for future loss of dependency.

5 The respondent conceded that it was usual to determine an award in a fatal accidents case by the two stage process argued for by the appellant. The respondent referred to State Government Insurance Office (Qld) v Biemann (1983) 154 CLR 539 at 547-548 where Gibbs CJ, Mason, Deane and Dawson JJ, when discussing fatal accident claims said:

"In other words, the general discretion given to a trial Judge by s 72 to award interest should be exercised in fatal accident claims as well as in actions for personal injury, so as to draw a distinction between detrimental consequences suffered before the date of the trial and those to be suffered thereafter. Accordingly, in cases which arise under s 72 of the Queensland Act and under such legislation of other States as is indistinguishable from that section, it will be appropriate for a trial Judge when he is able to do so, to split the award into two parts, as did the trial Judge in this case, the first part reflecting loss of dependency before the trial and the second part

(Page 5)

reflecting loss of dependency after that date; and to award interest only on the loss before the date of the trial, making no award of interest in respect of the loss to be suffered after that date."

6 In my view, ground 2.1 of the appeal, insofar as it refers to the two stage approach, should be upheld.

7 The next ground of appeal which was argued was ground 1 which is:

"In calculating the apportionment to the widow for 'loss of pecuniary benefits' his Honour ought to have deducted only the loss of pecuniary benefits attributed to the infants."

8 His Honour assessed the total loss of pecuniary benefits at $665,850. He then deducted the amounts due to the children and allowed the remainder to the widow. Included in the amounts calculated by his Honour for the children was the sum of $10,000 for loss of parental guidance for each of them plus interest on the total due to each child over the nine years prior to the judgment. His Honour deducted the total sum due to each child from the sum he had calculated for the overall dependency. It is conceded for the respondent in his outline of submissions, that the Judge's approach in this regard was wrong.

9 In my view his Honour should not have deducted the amounts of interest which were due to the children from the $665,850. The ground of appeal is sustained. I will discuss the award for loss of parental guidance later in these reasons. It would affect the total award.

10 Concerning the sum allowed for the loss of dependency, the annual loss calculated by his Honour (being $60,000) included an allowance for loss of car benefits. The appellant claimed that the provision of a motor vehicle was part of the deceased's salary. It was submitted that a sum equivalent to the entire annual value of the vehicle should have been allowed because the provision of the car had indirectly benefited the family; that if the deceased had not had a car as part of his salary package, his salary could have been perhaps $15,000 per annum greater. It was said that the employer had paid fringe benefits tax on the vehicle supplied to the deceased.

11 It was submitted for the respondent that there had been a paucity of evidence as to the extent to which the vehicle, which the deceased had been given in the course of his employment, would have conferred an

(Page 6)

indirect benefit; that no allowance ought to have been made in relation to that vehicle.

12 In my view the appellant's contention in this regard is in accord with authority and should be upheld.

13 Also included in the claim for loss of dependency was a sum to compensate the family for the loss of handyman services for 6.5 hours a week at an hourly rate of $11.50. That sum was claimed until 22 March 2029 when the deceased would have turned 50 years of age. It had been conceded for the respondent at trial that the rate of $11.50 was appropriate and that some allowance should be made for this aspect. Reliance was placed on Biddulph v Lenegan, unreported; FCt SCt of WA; Library No 990076; 19 February 1999.

14 There was also a claim for the value of childcare services which the deceased would have provided at 12 hours per week at $11.50 per hour until the youngest child reached 15 years of age. It was submitted for the respondent that there had been a paucity of evidence with respect to the claim for gratuitous services. There had however, been an agreement between the parties at the trial that a rate of $11.50 per hour would be applicable for child care services.

15 In my view it was reasonable for sums to be allowed in the award for damages for both the loss of handyman and childcare services.

16 There was also a claim for loss of superannuation benefits which was based on the statutory rates enacted in the Superannuation Guarantee (Administration) Act 1992. It was claimed that this was allowable on the authority of Knight v Anderson (1997) 17 WAR 85 and Jenkins v Harrison [1964] VR 637. See also Morris v Zanki (1997) 18 WAR 260 and Mills v Shire of Mundaring, unreported; FCt SCt of WA; Library No 970403; 15 August 1997. It was submitted that the approach in this State at least has been to calculate the capitalised value of the weekly income stream (Morris v Zanki (supra)) - any other approach would necessitate actuarial evidence which would be expensive and undesirable.

17 It was argued for the respondent that there had been no evidence as to when the superannuation would have become payable, or as to what amount would become payable, or as to whom it would become payable.

18 On the authority of the recent decision of the Western Australian Full Court in Kember v Thackrah [2000] WASCA 198, the appellant's contentions should be sustained.

(Page 7)

19 It was submitted for the appellant that the learned trial Judge had correctly taken the abovementioned components, except for childcare services, into account in reaching his figure for an annual loss at $60,000 although his Honour had not revealed how he had calculated the separate allowances in his reasons.

20 It was also submitted for the appellant that the learned trial Judge had not been wrong in adopting an average annual loss of dependence at $60,000.00 and an annual average dependency rate of 75 per cent. It was claimed that on one analysis the award was low. It had been 15 per cent less than the sum which the appellant had claimed. It was argued that there was authority in the decided cases which supported the use of an average figure, both for past losses and future losses.

21 On the other hand it was submitted for the respondent that it was by no means certain as to how the learned trial Judge had arrived at the sum of $60,000 for the average annual loss; that it was not possible to segment the $60,000 in any way. It was submitted that the Judge had simply arrived at the sum of $60,000 in the context of a paucity of evidence; further that there had been difficulties in making an allowance relevant to the motor vehicle and the superannuation payments.

22 At par 81 of his reasons the learned Judge said:

"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 on weekly terms $1150."

23 Mr Mitchenson was the employee who had replaced the deceased after his death. It was argued for the respondent that up to the date of his death the deceased had been earning substantially less than the salary which Mr Lombardo had been "grudgingly willing" to pay Mr Mitchenson to secure his services after the death of the deceased. It was submitted that it could be seen from the particulars of the claim which had been prepared for the appellant, for the period between August 1990 and February 1993, that the net salary of the deceased had been $29,380 at the time of his death. It was conceded that Mr Lombardo had said in evidence that the deceased had been due for a pay rise; also that there

(Page 8)

were other fringe benefits which should be taken into account. However, it was noted that when Mr Mitchenson had been re-employed, he had been paid $40,136 net. That was soon after the death of the deceased.

24 Mr Lombardo gave evidence that at the time of the deceased's death, the deceased was being paid $43,000 gross per year plus other benefits. That in order to bring Mr Mitchenson back to the company Mr Lombardo had had to pay him $60,000 a year. Mr Lombardo said in evidence that the deceased's wage did not reflect what he should have been earning. Mr Lombardo said:

"He was to be looked at after the Christmas break and we had made substantial money that year on a couple of good deals. But at the time I didn't want to pay Mr Mitchenson that much money; but I then just didn't want to go through having to start somebody over again as Mike Mitchenson had worked for me as a junior some years before."

Mr Lombardo conceded that he had felt obliged to pay Mr Mitchenson more than he would have paid the deceased. He said: "It was up more than I wanted to pay, yes."

25 It was conceded for the respondent that despite the premium at which he had started, it would have been fair to use Mr Mitchenson's salary for the purpose of calculating the damages. However, it was submitted that there would then be an element of positive discrimination built into that sum for the benefit of the appellant.

26 It was also conceded for the respondent that the deceased had been a competent accountant and that there was a possibility that he might have worked after 65 years of age. However it was argued there was at least an equal prospect that he would have retired before he had reached 65 years of age.

27 Ground (v) of the cross-appeal is that the 75 per cent dependency rate which was applied to the whole of the future loss of dependency, should not have been so applied on the assumption that the children would no longer have been dependent after the age of 18. The respondent also submitted that the children should not have had their dependency extended to the age of 22 years. The respondent's calculations are based on the proposition that their dependency would have ended at 18 years of age.

(Page 9)

28 In my view it is relevant to the extent of the children's dependency, that the evidence was that the deceased had been a successful accountant. The appellant had been a successful business woman. There was evidence that one of the children wanted to be a teacher. The appellant had said in evidence that when the children had finished at University and had become independent, she wanted to go to Europe and study. I would not agree that it was unreasonable for the children's' dependency to be allowed to 22 years of age.

29 Ground (vi) of the cross-appeal complains of the award of $10,000 to each of the two children for "loss of parental support, guidance and training". It was said that this had not been claimed by the appellant and that there was no entitlement at law for it; further and alternatively that there had been no evidence for such an award.

30 As I understand the law in Australia, it is not usual to allow a sum for loss of parental guidance as his Honour did in this case. Although it is done in some other countries, it is not the practice in Australia to my knowledge: "Assessment of Damages", Professor Luntz, 3rd Ed at 403-404.

31 In my view ground (vi) of the cross-appeal is made out.

32 Ground (vii) of the cross-appeal is that the learned Judge erred in making no deduction for contingencies. It was suggested for the respondent that if the dependency of the children was allowed to the age of 22 there should have been some deduction for contingencies.

33 So far as I am aware, there is not usually a deduction made from the children's damages to allow for contingencies. Those could have gone either way had the deceased lived - cf "Luntz - Assessment of Damages", 3rd Ed, at 435.

34 The next ground argued for the appellant was ground 3. It is that the learned trial Judge erred in failing to make some allowance for the prospects of the deceased earning income beyond the age of 65.

35 It was submitted for the appellant that because his Honour's reasons revealed that approximately 10 per cent of males work beyond the age of 65, his Honour should have made some allowance for the deceased's earnings after 65 years of age. Reliance was placed on the reasons of the Justices of the High Court in Malec v Hutton Pty Ltd (1990) 169 CLR 638 at 643. It was also conceded that this was a discretionary matter, but it was submitted that his Honour had failed to take relevant considerations

(Page 10)

into account. It was conceded that there had been no evidence from Mr Lombardo to the effect that he would have expected the deceased to work past the age of 65. However, it was submitted that the deceased may have become a director of one of Mr Lombardo's companies and that he would have received about $5000 per annum for such a directorship.

36 It was conceded that in his reasons for judgment his Honour had very accurately summarised the appellant's contentions on this aspect at the trial. However, it was argued that the learned Judge had gone too far by taking judicial notice of some publications without notice to the parties. It was conceded that an allowance for earnings after the age of 65 would be minimal and that it would be "a jury man's figure".

37 At the trial the appellant had calculated a sum for this component at $40,000. That was on the basis of an annual income of $60,000 net. There had been no evidence as to the deceased's intentions in this regard. However it was submitted for the appellant that the learned trial Judge had failed to take into account that the deceased had been in good health, a non-smoker, highly regarded, very career minded and that he had had a life expectancy of 87 years. The material success of the Lombardo group and general government policy were also relied on. It was submitted that his Honour had failed to take into account those relevant considerations; that as there was an approximate 10 per cent chance that the deceased would have worked beyond the age of 65 that chance should have been taken into account in the assessment of damages on the basis of Malec v Hutton Pty Ltd (supra) at 643.

38 Reliance was also placed upon the dicta of McHugh J in Medlin v The State Government Insurance Commission (1995) 182 CLR 1 at 24 where his Honour said:

"A further question arises as to whether the Supreme Court erred in failing to award damages for loss of earning capacity for the period beyond aged 65. No mention of this issue was made in the judgment of the Supreme Court. There is no reason why the plaintiff's impairment of earning capacity should be treated as ceasing at aged 65. However, the financial loss which flows from that impairment in respect of the period beyond aged 65 is of a different measure from the loss for the period up to age 65. It will be necessary to look at all the circumstances, including the intention of the plaintiff, to determine what, if any, post retirement remunerative activities the plaintiff would probably have engaged in if the accident had not occurred and

(Page 11)

for how long he would have continued engaging in those activities. Once that has been done the court must determine the extent to which the plaintiff's capacity to engage in these activities has been impaired and the loss which flows therefore."

39 The plaintiff in that case was a Professor and the head of Philosophy at Flinders University.

40 In this case in my view, his Honour properly considered the relevant evidence and was not satisfied that the deceased would have worked past the age of 65. He had no evidence that the deceased would have been likely to have worked past the age of 65. Many people retire before reaching 65 years of age. In Medlin (supra), Deane, Dawson, Toohey and Gaudron JJ said that the first requirement for a plaintiff who is seeking to recover damages for loss of earning capacity is to prove that:

"… the plaintiff's earning capacity has in fact been diminished by reason of the negligence caused injury."

41 In my opinion his Honour was entitled to make the finding he did on this aspect and this ground of appeal is not sustained.

42 The last ground of appeal argued for the appellant was that his Honour had erred in making a deduction of 5 per cent on account of the widow's prospects of financial dependency upon remarriage in the absence of any, or adequate evidence or findings as to the appellant's prospects of re-marriage, re-marriage rates generally, or prospects of financial dependency upon re-marriage. Ground (viii) of the cross appeal asserts that the learned Judge erred in making deduction of only 5 per cent against the prospect of the appellant remarrying.

43 Reference was made to the decision in Lamb v Southern Tablelands County Council (1988) A Tort Rep 80-220 at 68,199 where a widow at 31 years of age had had 20 per cent deducted from her share of the award on account of her prospects of re-marriage, without making any deductions for other contingencies. It was submitted for the respondent that in this case the deduction should have been 25 per cent to allow for all contingencies including re-marriage. Reference was also made to Knight v Anderson (supra) where a deduction of 25 per cent was made for various contingencies.

44 At the time of the trial the appellant was 36 years old. She had successfully re-entered the workforce and was independently redeveloping her career. His Honour was aware of the history of the

(Page 12)

family since the deceased's death. The appellant had not set her mind against the prospect of re-marriage. At the time of the trial the children were aged 12 and 9.

45 In this case, in my opinion, the learned Judge was entitled to take 5 per cent from the damages for the contingency of re-marriage. It was a minimal sum and I personally would have set it higher. That is because the appellant was relatively young and very capable with two children who would not take long to reach adulthood.

46 In my opinion this ground of appeal has not been made out. However neither would I interfere with his Honour's judgment as urged by the respondent.

47 At the hearing of the appeal, counsel for the appellant, in submissions dated 1 June 2000, submitted schedules which detailed the appellant's claim. The annual claim for loss of dependency, which includes sums for the loss of the motor vehicle, superannuation benefits and "gratuitous services" (not including childcare services), commences in the period 31 August 1990 to 28 February 1993 at the sum of $55,556. By the date of the trial the annual claim amounts to $78,267.87.

48 It was submitted for the appellant that the average annual loss of dependency claim on the allowed heads to the time of the trial was $67,441.90 and that the average future annual loss of dependency claim on the allowed heads was $71,703.40. That was said to be 15 per cent greater than the $60,000 annually, which was allowed by the learned Judge. The point was made that the claim for the future 25 years loss of dependency was based on Mr Mitchenson's salary at the date of the trial.

49 The appellant, in its submission dated 26 May 2000, has calculated the total sum for past loss of dependency, including interest, before the apportionment for liability at $548,964. I would allow that sum in accord with the above reasons. In my view the calculations submitted by the respondent are far too conservative, disregarding for example, a proper allowance for the motor vehicle which formed part of the deceased's salary.

50 With respect to the damages for the dependency after the trial, the calculations of the appellant include the extra $20,000 for loss of parental support. I would deduct that sum. Tara's future loss of dependency would then be calculated at $42,380 and not the $52,380 calculated by counsel for the appellant. Jordan's future loss would be $47,570 and not $57,570 as submitted.

(Page 13)

51 I would also only allow the 75 per cent dependency until Jordan reached 22 years of age, being for 13 years. The multiplier would then be 475.7 and the sum calculated would be $410,291.25. After the 13 years until 25 years, I would reduce the dependency to 60 per cent for the remaining 12 years. That sum would be $145,728. The total would then be $556,019. From that sum would be deducted $42,380 for Tara being $100.00 per week for 11 years and $47,570 for Jordan, being $100.00 per week for 13 years.

52 The total for the two children being $89,950 would be deducted from the $556,019 leaving $466,069 for the appellant. From that would be deducted 5 per cent for the prospect of remarriage, leaving the appellant $442,765.55 plus funeral expenses. I am in full agreement with Miller J's reasons concerning the funeral expenses which he would calculate at $7335 before apportionment.

53 Tara's past and future loss before apportionment would then be $63,648.00 plus $42,388.00 being $106,036.00. Jordan's sum would be $111,218.00 before apportionment.

54 The appellant's past and future loss before apportionment would be $421,668.00 plus $450,100 being $871,768.

55 If each of the dependent's awards were then reduced by one-third for the issue of liability, the resulting sums are:

Appellant: 871,768 x 0.6667 = 581,207

Tara: 106,036 x 0.6667 = 70,694

Jordan: 111,218 x 0.6667 = 74,149

56 The total award would then be $726,050 plus the sum of $4,889 for the funeral expenses.

57 I would therefore allow the appeal in accord with the above reasons.

58 PARKER J: I agree with the reasons and orders proposed by Miller J.

59 MILLER J: The appellant brought an action on behalf of herself and her two children pursuant to the provisions of s 6 and s 8 of the Fatal Accidents Act 1959 seeking damages for loss of dependency consequential upon the death of her late husband, Frank De Sales, who was killed on 12 August 1990 whilst attempting to repair a valve on the pipe of a

(Page 14)

suction pump located in a dam upon the respondent's property in Karnup. Whilst swimming towards the location of that suction pump, Mr De Sales, (the deceased), experienced difficulties in the water and drowned. The question of the respondent's liability for alleged negligence was determined by a decision of the District Court on the basis that the appellant was entitled to recover two-thirds of damages to be assessed under the provisions of the Fatal Accidents Act, the deceased having been held one-third to blame by way of contributory negligence.

The Factual Background

60 The assessment of damages came on for hearing before H H Jackson DCJ in the District Court of Perth on 13 July 1999. Very little evidence was adduced before his Honour by way of oral evidence, but a good deal of written material was tendered by consent, including proofs of evidence of the appellant and various other witnesses. The proof of evidence of the appellant revealed that she was born on 11 February 1963 and was therefore 36 years of age at the date of trial. She had been married to the deceased on 13 April 1985 at which time she was 22 years of age. At the date of death of the deceased on 12 August 1990, she was 27 years of age. There were two children of the marriage, Tara De Sales born 7 October 1987, and Jordan De Sales born 24 April 1990. Those children were therefore aged almost 3 years and 4 months respectively at the time of their father's death. By the date of trial, they were 11 and 9 years of age respectively.

61 The appellant in her statement of evidence revealed that when she and her husband were married, she was employed, but by November 1986 she had ceased work. She then studied interior design at Leederville TAFE in early 1987. After an interruption to her studies occasioned by her first pregnancy and birth of the child Tara, she returned to Leederville TAFE on a part-time basis and was still studying part-time when she again became pregnant in late 1989. She continued her studies up to and after the birth of the child Jordan and was still a part-time student at the date of death of the deceased. Unfortunately, she was unable to complete the interior design course because of the death of the deceased. However, she had been working part-time from November 1998 for between 10 and 15 hours per week in office administration work which occupation she followed until December 1989. She was not in fact working at the date of death of the deceased, but since that time, she has commenced full-time work and has been engaged in a number of office jobs. At one time she ran her own business but in September obtained a position as a stock

(Page 15)

controller with Visy Board in Perth. At the time of trial she was anticipating a transfer to Melbourne for financial reasons. Her disposable income was anticipated to increase upon that transfer.

62 The appellant gave evidence that the deceased was born on 23 March 1959 and was 31 years of age at the date of his death. He had been educated at St Patrick's Catholic Primary School, Christian Brothers College and WAIT. He obtained a business degree in February 1981 and in the same year was registered as a tax agent. He became a certified practising accountant in August 1981. It was his ambition to become an associate of the Society of Certified Practising Accountants. The deceased's work history included company secretarial work and accounting work with companies like M G Kailis, Prok Engineering, Ocean Shipyards Pty Ltd and, finally, the Lombardo Group. In or about 1987 the deceased became overall financial controller of the Lombardo Group.

63 Evidence was given at trial by Michele Lombardo, director of the various companies which comprised the Lombardo Group. Mr Lombardo's proof of evidence was tendered in evidence and it revealed that the deceased had been recruited from Ocean Shipyards (WA) Ltd (a subsidiary of the Lombardo Group) to become financial controller of Anchorage Investments Pty Ltd, a key company in the Lombardo Group. He also acted as company secretary for a large number of companies (between 15 and 20) within the Group and, according to Mr Lombardo, was a voracious worker whom he described as "A1 compared to other financial controllers". He added that if the deceased "was around today, I would have absolutely no hesitation offering him a job. I would have to say given his rate of progression, if he was around today, he would have even matured further." Mr Lombardo pointed out that at the date of the deceased's death, the Lombardo Group was being rationalised and was becoming involved in other areas of commercial opportunity such as mining. He described the deceased as a person who "would have been a fulcrum in that process and would certainly have been one of the top candidates for receiving bonuses and other rewards." Mr Lombardo 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

(Page 16)

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 … 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 a 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."

64 There was evidence from Michael Arthur Mitchinson that he was, at the time of trial, the financial controller for the Lombardo Group of Companies, having returned to work with the Group after a period of absence during the 1980s when he worked for L R Connell. Mr Mitchinson had been recruited back to the Lombardo Group after the deceased's death and upon his return in September 1980 was paid $60,000 gross per annum with the benefit of a company car and superannuation. By July 1997, he was paid $71,200 per annum plus 6 per cent superannuation, professional subscriptions (about $600) and had the use of a company car with all expenses paid. That salary increased to $73,336 in May 1998 and by the time of the hearing of this appeal, it had increased to $75,900 per annum.

65 The appellant and the deceased were, on any view of the evidence, a loving and close couple. They were intent upon seeing that their children were properly educated and cared for. They had purchased a family home and bought a block of land in Samson upon which they intended to build another home. This home was in fact completed by the appellant after the death of the deceased. The appellant testified that it is her intention to have the two children educated to university level and that upon their completion of university studies, she will go to Europe to study art and culture. She had at the time of trial been a widow for 9 years and although she had for a time after the death of the deceased had a relationship with another man, she had not entered into any de facto relationship. At trial she testified that she had no ongoing relationship with anybody and because she was intending to move interstate, any future relationships were entirely unknown. She did, however, apparently answer (although the transcript records no answer) that she had not set her mind against a relationship. Whether this question was intended to refer to marriage or a relationship is unclear.

(Page 17)

The Trial Judge's Findings

66 Against this background, the learned trial Judge approached the assessment of damages by finding:

(1) Assuming that the deceased would at the time of trial ve been earning the equivalent of Mitchinson, the claim should be assessed on a lost net present annual figure of $60,000 or $1150 per week.

(2) It would be reasonable to postulate a past and future loss of dependency of 75 per cent of that sum.

(3) If the deceased had not died, the appellant would have been dependent upon him until he reached the age of 65 years and each of the children dependent until they respectively reached the age of 22 years.

(4) In applying the appropriate multiplier to the loss so calculated, there should be no discount for the usual contingency so far as the deceased was concerned but nor should there be added any premium.

(5) The financial benefits which each of the children would have received should be calculated at $100 each per week.

(6) There should be an allowance of $10,000 to each of the children for loss of parental support, guidance and training.

(7) There should be a modest reduction for the appellant's prospects of remarriage, that deduction being 5 per cent and applicable only to the share of the award apportioned to the appellant.

67 In the end result, his Honour's calculations led to an award of $544,693 made up as follows:

Tara: $ 64,260

Jordan: $ 68,575

Appellant: $411,858

TOTAL: $544,693

(Page 18)

68 This was the net award after deduction of one-third for contributory negligence. Leaving aside contributory negligence, the award was made up as follows:

Tara: $ 95,200

Jordan: $101,592

Appellant $617,787

TOTAL $814,579

The Methodology Of Assessment

69 In approaching the assessment of damages, his Honour said:

"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."

70 The methodology adopted by his Honour was to make the assessment without separating loss into pre-trial and post-trial components. This is one of the bases upon which the appellant challenges the assessment. The appellant contends that his Honour ought to have differentiated the 34-year period over which damages were assessed into past loss of dependency for nine years and future loss of dependency for 25 years and submits that in failing to do this, his Honour effectively (and erroneously) applied the statutory 6 per cent discount (Law Reform (Miscellaneous Provisions) Act 1941 s 5) on past loss of dependency and also awarded interest on future loss of dependency. The respondent concedes that it is usual to separate past assessment from future assessment, but contends that assessments of damages in Fatal Accidents Act cases are quite different from assessments of damages in personal injuries cases. The respondent does however concede in the cross-appeal that it would be usual to determine the award in the two-stage process of first determining losses suffered up to the date of trial and, secondly, by assessing the prospective detriment likely to be suffered. Damages in the nature of interest may be awarded in respect of the first component but not

(Page 19)

the second; State Government Insurance Office (Qld) v Biemann (1983) 154 CLR 539 (at 547-8).

71 Professor Harold Luntz in his work, Assessment of Damages for Personal Injury and Death (third edition) refers [at par 1.6.7] to a "controversy" having arisen in relation to the assessment of damages for wrongful death in terms of the question whether a single or two-stage process of assessment should be undertaken. Professor Luntz points out that consistently with his opinion with regard to damages for loss of earning capacity, Barwick CJ in Ruby v Marsh (1975) 132 CLR 642 (at 647-51) took the view that damages under Lord Campbell's Act are awarded in respect of a single loss - loss of expectation of benefit - which occurs at the time of death, and that, though facts occurring between the date of death and the assessment may be taken into account to assist in the valuation of that loss, no division should be made between the effects of the loss prior to the date of assessment and the effects thereafter.

72 Professor Luntz accurately summarises the reasons of the other members of the Court in Ruby v Marsh [at 1.6.7] as follows:

"McTiernan J agreed 'in the main' with the Chief Justice's reasons (at 655). Gibbs J distinguished (at 659 - 60)between damages for loss of earning capacity in a personal injury action and damages for loss of expectation of benefit in an action for wrongful death, being of the opinion that in the first case, but not the second, there might be 'compensation for loss or damage to be incurred or suffered after the date of the award' within the meaning of the Victorian legislation providing for the payment of interest on damages (see [11.3]). Stephen J, on the other hand, acknowledged that the practice had been different, but thought that damages under Lord Campbell's Act, like damages in personal injury actions, should be computed in times of changing money values, at least in cases in which there was a substantial delay between death and trial, 'in two stages, looking first to the past loss of benefits and secondly to those which lie in the future' (at 665). Jacobs J, too, saw no distinction between personal injury claims and those for wrongful death, though he recognised that the common practice in the latter had been to make a single assessment (at 668 - 9)."

73 Professor Luntz [at 1.6.8] makes reference to the English and to other Australian cases on the subject and without reaching any conclusion appears to favour the view that the two-stage process is presently that

(Page 20)

which is appropriate for Fatal Accidents Act assessments. The paragraph is in the following terms:

"[1.6.8] Despite the views expressed by a majority of the court in Ruby v Marsh, supra, the common practice has undoubtedly changed and damages under Lord Campbell's Act are now assessed in most cases in two stages, corresponding to the division into 'special' and 'general' damages for loss of earning capacity in a personal injury action. In England the change of practice was formally decreed in Cookson v Knowles [1977] QB 913 (CA) and affirmed on appeal to the House of Lords, [1979] AC 556. The main reason given for the change was that at the time of the trial the court is able to take into account matters that have occurred since the death, including increases in the earnings from which the deceased would have provided the benefits for the dependants; and in inflationary times such increases are likely to be very considerable. In Johnson v Ryan [19771 1 NSWLR 294, though the case was not regarded as one suitable for making the division, it was said that such a course was 'now permitted and commonly adopted' (at 303). This was confirmed in Heffernan v Occidental Minerals Corporation of Australia [1978] 2 NSWLR 412 (CA), where it was said (at 418) that the proper method is now to divide the calculations into pre-trial and post-trial loss, otherwise a long period between death and trial would lead to error in the assessment. The Full Court of the Federal Court has also sanctioned the use of the two-stage approach on the ground that facts are to be preferred to prophecies (Australian Telecommunications Commission v Parsons (1985) 59 ALR 535 (Fed Ct of A, FC)), 542. Even in Victoria it has been held that a trial judge is entitled to deal separately with the pre-trial and post-trial loss (Barker v Neilsen (Vic FC, 31 March 1981, unreported)."

74 In State Government Insurance Office (QLD) v Biemann (1983) 154 CLR 539, Gibbs CJ, Mason, Deane and Dawson JJ (at 546 - 547) discussed Ruby v Marsh and Cookson v Knowles [1977] QB 913 in the context of the division of a Fatal Accidents Act assessment into two parts and said:

"Since Ruby v Marsh (29) this Court has had no occasion to consider an award of interest on a verdict in a fatal accident claim. However, the House of Lords considered the question in Cookson vKnowles (30). It held (1) that in a normal fatal

(Page 21)

accidents case, the damages ought, as a general rule, to be split into two parts: (a) the pecuniary loss which it was estimated the dependants had already sustained from the date of death up to the date of trial, and (b) the pecuniary loss which it was estimated they would sustain from the trial onwards: (2) that interest on the pre-trial loss should be awarded for a period between the date of death and the date of trial at half the short term interest rates current during that period; and (3) that no interest should be awarded on future loss. The relevant statutory provision, s 3 of the Law Reform (Miscellaneous Provisions) Act 1934, as amended by s 22 of the Administration of Justice Act 1969, gave the trial judge a discretion. The House of Lords judgment effectively prescribed the guidelines according to which that discretion was to be exercised.

Although in Cookson v Knowles Lord Fraser of Tullybelton said (31) that s 79A is in terms broadly similar to those of the English legislation considered in that case, s 79A differs from the English legislation, as it does from s 72 of the Queensland Act, in a number of respects, which were relied upon by Kneipp J in his dissenting judgment in the present case. First, s 79Aprovides that the judge "shall" award interest "unless good cause is shown to the contrary", and not that he "may" do so. Secondly, s 79Adoes not expressly permit the giving of interest on part only of the amount awarded. Thirdly - and this important ground of distinction was pointed out in Cullen v Trappell (32) - s 79Acontains, and s 72 does not, an express prohibition on the allowance of interest on that part of the damages which is awarded as compensation for loss or damage to be incurred or suffered after the date of the award. The decision in Ruby v Marsh (33) depended on the particular words of s 79A and in particular on the question whether the words of s 79A(3)(b)are concerned with a juristic concept or a practical one. That question does not arise in the present case, where, to use the words of Thompson v. Faraonio (34), the effect of s 72 "was simply to leave the point resting on principle", namely, the principle expounded in relation to actions for personal injuries in Fire and All Risks Insurance Co. Ltd. v Callinan (35)and in relation to fatal accident claims in Cookson v. Knowles (36). In other words, the general discretion given to a trial judge by s 72 to award interest should be exercised in fatal accident claims as well as in actions for personal injuries so as to draw a

(Page 22)

distinction between detrimental consequences suffered before the date of the trial and those to be suffered thereafter. Accordingly, in cases which arise under s 72 of the Queensland Act and under such legislation of other States as is indistinguishable from that section, it will be appropriate for a trial judge (1) when he is able to do so to split the award into two parts, as did the trial judge in this case, the first part reflecting loss of dependency before the trial and the second part reflecting loss of dependency after that date; and (2) to award interest only on the loss before the date of trial, making no award of interest in respect of the loss to be suffered after that date. In our view, the comments made by Gibbs J in Cullen v Trappell (37) which we have already quotedshould be applied to fatal accident claims, subject to the qualification that we are here concerned with loss of dependency and not with pain and suffering and loss of amenities."

75 Consistent with this statement of principle, it is now appropriate in fatal accident claims in Western Australia, at least when the trial judge is able to do so, to split the award into two parts, the first part reflecting loss of dependency before trial and the second, loss of dependency after trial. Interest is of course only to be awarded on pre-trial loss. To the extent that the learned trial Judge allowed interest in this case on the post-trial assessment of damages, the assessment is, in my view, flawed and must therefore be redone.

Re-assessment of Damages for Loss of Dependency

Past Loss of Dependency

76 In his proof of evidence, Michael Arthur Mitchinson stated that when he resumed work with the Lombardo Group in September 1990 (replacing the deceased), he was paid $60,000 gross per annum together with a company car and superannuation. As I have indicated, that sum increased as the years went by. It was Mr Mitchinson's salary which his Honour considered appropriate to utilise as a base for his calculations of both past and future loss of earning capacity (although, of course, his Honour did not divide the two.) In reaching a figure of $60,000 per annum net, the learned trial Judge assumed that the deceased would have earned at trial a net income equal to that of Mitchinson. He added a "modest amount" for loss of use of the motor vehicle provided by the employer; an amount to represent loss of superannuation benefits; and a "modest amount" for

(Page 23)

gratuitous services to age 50. His Honour also applied an unstated discount for "the period between death and the achievement of such an income by the deceased". The end result was the figure of $60,000.

77 It is true that the learned trial Judge did not disclose in his reasoning precisely what was allowed for items such as loss of use of a motor vehicle, loss of superannuation benefits and gratuitous services. Nor was the discount in relation to the period between death on the achievement of such an income specified. However, an accurate arithmetical calculation of loss in these circumstances is impossible. The task of assessment of damages under Lord Campbell's Act legislation has been described as "always difficult"; McDonald v Hughes [1957] St R Qd 448 per Philp J (at 449). In Matthew v Floor [1939] SASR 389, Cleland J (at 392 - 393) suggested that it was appropriate to use a "broad axe and sound imagination" in such an assessment.

78 In my view, the learned trial Judge was entitled to use Mitchinson's salary at the date of trial as a base for his calculations. Although Mr Lombardo conceded that at the time of his death the deceased was being paid only $43,000 per annum and it was necessary to increase that figure to $60,000 to bring Mitchinson back to take over the position, Mr Lombardo was adamant that the deceased was the better worker. He said:

"Mr Mitchinson must therefore have been someone you thought would be a valuable employee?---No, not at all. Yes, I thought he would be a valuable employee under the circumstances. I was in a hole at the time and probably Frank's wage didn't probably reflect what he should have been getting. He was to be looked at after the Christmas break and we had made substantial money that year on a couple of good deals but at the time I didn't want to pay Mitchinson that much money but I then just didn't want to go through having to start somebody over again as Mike Mitchinson had worked for me as a junior some years before.

He had also worked in this exact position, hadn't he?---Not the exact position I didn't think. He was a junior and I sold out; I sold a large proportion of the group and he then became company secretary for a short period and then moved on to Perth.

(Page 24)

So you felt obliged to pay Mitchinson - - -?---I didn't have any - I had no option. He was receiving that sort of money. He had been - - -

If I could just finish the sentence. You felt obliged to pay Mitchinson more than you would have paid De Sales because of the hole you were in?---It was up more than I wanted to pay, yes."

Bearing in mind that Mitchinson's base salary at the date of trial was $46,958 net, it is apparent that the deceased, had he lived and retained his position in the Lombardo Group, could have been earning much the same.

79 It was entirely appropriate for the learned trial Judge to make an allowance for loss of superannuation benefits. Although contested by the respondent, an allowance for superannuation was clearly called for in the base figure adopted by His Honour as the starting point for loss of dependency: Kember v Thackrah [2000] WASCA 198. The basis upon which loss of superannuation benefits should be calculated may remain unclear (see Jongen v CSR Ltd (1992) A Tort Rep 81-192) but the entitlement is clear. The inclusion of an allowance for loss of use of the motor vehicle was also justified, as the deceased had been provided by his employer with a motor vehicle as part of his salary package. It avoided the need for him to acquire a vehicle for himself and it provided for the family a means of transport in out-of-work hours.

80 The appellant in further and better of particulars of amended of statement of claim dated 15 July 1999 had estimated the benefit of the motor vehicle to the deceased as $15,000 per annum, and at trial there was tendered an affidavit of one Juliana Slack sworn 13 July 1999 in which Ms Slack, a manager of research and surveys at the Australian Institute of Management (NSW) annexed a copy of a 1998 AIM national salary survey data table for the position of financial controller. In this table the pay component value of a motor vehicle was variously assessed at $20,522 (in the case of a vehicle purchased at a cost of $40,000 and travelling 30,000 kilometres per annum) and $17,348 (in the case of a vehicle purchased at a cost of $30,000 and travelling the same kilometres). Mitchinson in his evidence placed a value of $15,205.04 on the motor vehicle with which he was provided (being the figure returned for fringe benefit tax purposes). There seems therefore to have been evidence in the case which would have justified the contention of the appellant that $15,000 per annum represented the value to the deceased of the motor vehicle with which he was provided. Just what the value was to

(Page 25)

the dependants of the deceased is another question and in relation to it, his Honour gave no indication as to how he made the calculation.

81 Professor Luntz in his work [par 9.3.6] refers to the value of use of a car made available to the deceased as an appropriate allowance in calculating the value of services which the deceased would have provided to his dependants in addition to any benefit they would have derived from his earnings. Similarly, Professor Luntz cites numerous cases which identify an entitlement to an allowance for work done by the deceased around the family home. One such case is Watson v Burley (1962) 180 CLR 635 where the Court simply stated (at 638) that "the deceased was an enterprising and industrious man who outside his working hours had built the family home and maintained a useful garden which provided the family with vegetables". An allowance for gratuitous services (described by the learned trial Judge as "modest") was therefore entirely appropriate albeit that it was not specified in the assessment.

82 One of the primary issues is whether an allowance of $60,000 per annum or $1150 per week net was an appropriate measure of the base figure from which dependency of the appellant and her two children should be calculated. Whilst recognising a lack of arithmetical precision in the calculation, it does seem to me that reference to the evidence of Mitchinson and Lombardo justified the figure chosen by his Honour, but only as a base figure for calculating future loss of dependency. It was on the high side, but I am not disposed to interfere with it in recalculating future loss.

83 I cannot however accept the learned trial Judge's use of $60,000 as the base figure for calculating past loss of dependency. The deceased's net income at the date of his death was $29,380, which was a good deal less than the $40,136 Mitchinson received when he took the deceased's position. Although Mr Lombardo intended to review the deceased's position in the next year, it seems unlikely his salary would have risen to $60,000 gross. It seems clear that he would have reached Mitchinson's position by the time of trial, but no doubt it would have been by gradual increments in salary. Mitchinson's salary had risen by $5000 net to $45,857.80 net on 1 July 1996, and to $46,957.87 net by 1 July 1998. It indicates that the increments were likely to be no more than $1000 net each two years.

84 From all of this I conclude that an appropriate base figure for past loss of dependency purposes should have been $50,000 and not $60,000. This figure I calculate by taking $38,000 as the mean between the

(Page 26)

deceased's net income at date of death ($29,380) and Mitchinson's net income at the date of trial ($46,958). To this I would add $12,000, being an allowance of $7500 for the benefit to the wife and children of the company car; $2500 per annum for handyman services; and $2000 net for superannuation benefits. The end result is the figure of $50,000, which is $961.50 per week.

85 I should add that the learned trial Judge allowed gratuitous services of the deceased only until age 50 (although I cannot see where there was any discount to account for this). Why his Honour limited the allowance in this way is unexplained. There seems no reason why those services should not have been allowed until at least age 65. That is what I propose to do in the recalculation of future loss of dependency.

86 The learned trial Judge calculated both past and future loss of dependency of the dependants of the deceased at 75 per cent. In doing so, his Honour utilised table 9.1 from Professor Luntz's work which suggests a dependency of wife and children in variously composed households when applied to the average income of the family. The table is taken from the ABS Household Expenditure Survey 1984 (Preliminary) CAT6534.0 and is said to assume in determining percentages of dependency 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. For two adults and two children in the household, the percentage of dependency of the wife and children is given as 74-81 per cent. It is from this that his Honour took the figure of 75 per cent for loss of dependency. The respondent did not contend at the hearing that the 75 per cent dependency rate was itself wrong, but contended that the learned trial Judge had erred in applying that dependency rate to the whole of the future loss of dependency. With this I agree. However, in relation to past loss of dependency, the allowance was entirely appropriate.

87 In the result, the learned trial Judge should have calculated past loss of earning capacity in accordance with the following formula:

$961.50 net per week x 480.14 (weeks from date of death to ultimate date of judgment) x 75 per cent = $346,240.

I would make no deduction for contingencies for that period.

(Page 27)

Future loss of dependency

88 As the deceased was 31 years of age at the date of his death, he could have been expected to have worked until age 65. His Honour concluded that literature on the subject of retirement (particularly a paper "Older Workers, Families and Public Policies" published by Australian Institute of Family Studies 1999) and figures published by the Australian Bureau of Statistics indicated that by 1999 only about 45 per cent of males in the workforce were still working past 64 years of age. His Honour concluded:

"Given that I am not prepared to find that in over 20 years' time the plaintiff would have remained in the workforce past 65 years."

89 This conclusion is challenged by the appellant who contends that his Honour ought to have invited the parties to comment upon the applicability and weight of the survey in question, which was not the subject of any actual evidence before his Honour. Further, the appellant contended that there should have been an allowance for the loss of opportunity of the deceased to work beyond the age of 65 years. Reliance was placed upon Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 and Poseidon Ltd &Sellars v Adelaide Petroleum NL (1994) 179 CLR 332. These cases deal with the evaluation of damages for lost opportunity and the principles therein expressed must be accepted. However, the decision in Medlin v The State Government Insurance Commission (1995) 182 CLR 1 is perhaps more relevant. There, McHugh J (at 24) said of a university professor who at the age of 56 years of age had been injured in a motor accident and had been obliged to retire:

"His Honour's finding may be viewed as the prima facie measure of the plaintiff's economic loss for the period up to age sixty-five. It is subject to any finding which the court assessing the plaintiff's damages makes in relation to the question of what alternative forms of employment, if any, were reasonably available to the plaintiff after his early retirement.

A further question arises as to whether the Supreme Court erred in failing to award damages for loss of earning capacity for the period beyond age sixty-five. No mention of this issue is made in the judgments of the Supreme Court. There is no reason why the plaintiff's impairment of earning capacity should be treated as ceasing at age sixty-five. However, the financial loss which flows from that impairment in respect of the period beyond age

(Page 28)

sixty-five is of a different measure from the loss for the period up to age sixty-five. It will be necessary to look at all the circumstances, including the intentions of the plaintiff, to determine what, if any, post-retirement remunerative activities the plaintiff would probably have engaged in if the accident had not occurred and for how long he would have continued engaging in those activities. Once that has been done, the court must determine the extent to which the plaintiff's capacity to engage in these activities has been impaired and the loss which flows therefrom."

90 However, in that case the individual in question was an experienced professor of philosophy skilled in research work who may well have had the capacity to have continued in his chosen field past the age of 65 years. The deceased in this case was a financial controller qualified in the discipline of accountancy, who the learned trial Judge was, in my view, entitled to expect would have retired by the age of 65 years. Although it was argued on the hearing of the appeal that the deceased may have gone on to some form of directorship in the Lombardo Group after his retirement at 65 years of age, there was nothing in Lombardo's evidence to really justify such a conclusion. Whilst the group had outside directors in some of its subsidiaries, Lombardo was unable to say what they were earning. In Anchorage Investments the directors were limited to members of Mr Lombardo's family and they were paid directors' fees of $5000 per annum with substantial superannuation benefits. Any directorship that the deceased was given would appear to have been likely to have been an executive directorship as distinct from an outside directorship. I am therefore of the view that it was appropriate to measure future loss of dependency in terms of a working life of the deceased until aged 65 years. If one assumes the figure of $1150 net per week for future loss of dependency, the appropriate multiplier for the 25 years of working life the deceased had ahead of him is 686.9. When applied to $1150 per week, it results in a figure of $789,935.

91 I agree with the submission of the respondent that the learned trial Judge erred in applying the 75 per cent dependency rate to the whole amount of the future loss of dependency. At the date of trial, the age of the deceased's daughter was eleven and that of his son nine. The dependency clearly needed to be reduced as the children became independent. The respondent's submission is that the dependency should have reduced to 69 per cent in October 2005 when the deceased's daughter attained 18 years of age and to 63 per cent in April 2008 when the son attained 18 years of age. Reliance was placed upon table 9.1 in

(Page 29)

Professor Luntz's work at par 9.3.2 which suggests that in a household of two adults and one child the percentage of dependency of the wife and child is 69 - 76 per cent and where there are no children the dependency of the wife is 63 - 69 per cent.

92 The respondent's submissions assume that each of the children will become independent at the age of 18 years. However, the learned trial Judge concluded on the evidence, that the children were likely to remain dependent until 22 years of age. He accepted that they would be candidates for tertiary education, a conclusion which, in my view, was open given the achievements of the deceased and the appellant. Further, the appellant's clear desire for her children to attain university qualifications was unchallenged.

93 I would accept the respondent's submissions in relation to the sliding scale of dependency, although extending the suggested percentages until each of the children had attained the age of 22 years. The result would be as follows:

(a) Dependency at 75 per cent for 11 years until the deceased's daughter attains the age of 22 years:

$1,150 x 423.9 = $487,485 x 75 per cent = $365,613.

(b) Dependency at 69 per cent from the year 2010 to the year 2012 when the deceased's son attains the age of 22 years:

$60,000 x 1.83 = $109,800 x .526 (to allow for the fact that the loss does not commence for 11 years) = $57,754 x 69 per cent = $39,850.

(c) Dependency at 63 per cent for 12 years from the year 2012 to the year 2024 when the deceased could have been expected to have retired at 65 years of age:

$60,000 x 8.38 = $502,800 x .468 (to allow for the fact that the loss does not being for 13 years) = $235,310 x 63 per cent = $148,245.

94 It has been necessary to use the 6 per cent annual tables in the second and third of the above calculations for ease of application of the long-term discount occasioned by the fact that the loss does not begin until a number of years have elapsed. There is therefore some minor inconsistency between use of the weekly multiplier for the first of the calculations and

(Page 30)

use of the annual multiplier for the second and third. The difference is, however, infinitesimal.

95 The overall result is that I reach a figure of $553,708 by way of loss of dependency for the wife and two children of the deceased before any deduction for contingencies is made. As to those contingencies, the question of the prospect of remarriage of the appellant looms largest. A deduction for that contingency would be appropriate only in relation to the award to her. The question is the percentage that should be applied. The learned trial Judge allowed only 5 per cent, describing it as a "modest reduction for the chance of obtaining support from remarriage". In Knight v Anderson (1997) 17 WAR 534, the Full Court was concerned with the trial Judge's deduction of 25 per cent from the appellant's share of the award of damages for the prospect of her remarriage. The Court was not prepared to vary that deduction in the circumstances of the case. An unsuccessful attempt was made to adduce evidence of the relationship between the appellant and a third party which had come to light post-trial. In Tilbee v Wakefield [2000] WASCA 143, an overall deduction of 60 per cent was made in circumstances where the widow was found to be in a de facto relationship. In Hermann v Johnston [1972] WAR 121, Burt J said, in relation to the question of prospect of remarriage of a widower (at 124):

"In such a matter as this, and in the absence of any statistical evidence, and in the absence of any evidence bearing upon the expectations or intentions of the particular plaintiff, it may be thought that the task of assessing the chance of remarrying is beyond the reach of human judgment: see Buckley v John Allen & Ford (Oxford) Ltd [1967] 2 WLR 759, at pp 762, et seq;[1967] 1 All ER 539. But such has been held not to be the case. 'It would be wrong to assume that, even in the absence of positive evidence as to the matrimonial prospects, the possibility of remarriage can be ruled out: see Goodburn v Thomas Cotton Ltd [1968] 2 WLR 229, at p 236; [1968] 1 All ER 518, per Edmund Davies LJ. And further it would seem that the judgment as to the probability is one required to be made by the Court charged with the responsibility of making the assessment of the surviving spouse having regard, inter alia, to that court's assessment of the personal qualities thought by it to be possessed by that person and to be relevant to that person's matrimonial prospects. Hence, if in the opinion of the court of trial the survivor is a 'personable young woman' or man as the case might be, this can be had regard to as bearing upon the

(Page 31)

likelihood of remarriage: Zordan v Metropolitan Transport Trust (1963) 37 ALJR 159; [1963] ALR 513.

Accepting this to be the law, then it is apparent enough that judgment as to the chance of remarriage is a difficult one to make, but, and by the same token, once made it is a difficult one to challenge on appeal, it not being enough, I think, for the Court of Appeal on the written evidence to say that it would have been inclined to take a somewhat different view."

96 Granted that it is difficult to challenge a trial Judge's assessment of the prospects of remarriage or the "revived capacity to remarry", as it is sometimes put, the fact remains that in this case the learned trial Judge's deduction for that contingency was very slight. For my own part, I would think that for a woman of the appellant's age and credentials a 20 per cent deduction would be appropriate.

97 The question of deduction for other contingencies is also relevant. In Kember v Thackrah (supra) Malcolm CJ reviewed the Western Australian cases on deductions for contingencies in assessments of damages for loss of earning capacity, pointing out that in Western Australia, save in exceptional circumstances, a deduction of more than 15 per cent is generally considered to be unreasonable. The standard rate of discount for contingencies in this State was said by his Honour to be "in the vicinity of 2 per cent to 6 per cent", reference being made to Foyster v Goynich [1984] WAR 80 at 81; Black v Motor Vehicle Insurance Trust [1986] WAR 32 at 34 and Bowen v Tutte (1990) A Torts Rep 81-043.

98 It seems to me that in this case a small deduction for the general contingencies of life should be considered. It is true that in Bresatz v Przibilla (1962) 108 CLR 541 at 544, Windeyer J pointed out in relation to the contingencies of life that they are not always adverse:

"We were told that in South Australia it is a common practice to subtract twenty-five per cent 'for contingencies'. Indeed counsel for the appellant, in the calculations he made in support of his claim for higher damages, conceded that this should be done. But he did not explain why. I know of no reason for assuming that everyone who is injured and rendered for a period unable to work would probably in any event have been for a quarter of that period out of work, or away from work and unpaid. No statistics were presented to justify this assumption. Moreover,

(Page 32)

the generalization, that there must be a 'scaling down' for contingencies, seems mistaken. All 'contingencies' are not adverse: all 'vicissitudes' are not harmful. A particular plaintiff might have had prospects or chances of advancement and increasingly remunerative employment. Why count the possible buffets and ignore the rewards of fortune? Each case depends upon its own facts. In some it may seem that the chance of good fortune might have balanced or even outweighed the risk of bad."

However, in this case I would consider a deduction for general contingencies of 5 per cent to be appropriate, with the result that in relation to the widow's entitlement, there should be an overall deduction of 25 per cent. As to the entitlement of the children, I consider a deduction of 5 per cent would be appropriate, particularly as the calculations assume that they will continue their education until tertiary level.

99 I would make no allowance for "loss of parental support, guidance and training" which his Honour was inclined to do. I know of no authority to support the view that such an allowance is appropriate. Professor Luntz deals with the matter at par 9.3.12, pointing out that in England the matter has been left open for consideration. Generally, however, loss of a parent's care, education and training is not considered to be a material loss for which damages are recoverable by the children: Hamlyn v Hann & Anor [1967] SASR 387.

Conclusion on assessment for loss of dependency

100 In my view, for the reasons I have set out above, the appropriate basis upon which his Honour should have assessed damages in this case was as follows:

Past loss of dependency $346,240

Future loss of dependency $553,708

Total: $899,948

101 I would agree with the learned trial Judge that the dependency for each of the children should be allowed at $100 per week. In the case of Tara, that dependency should be calculated as to two components. The first is for past loss of dependency between the date of her father's death and the date of trial which is a period of nine years. At $100 per week, or $5,200 per annum, the amount arrived at is $46,800. Thereafter, the

(Page 33)

calculation should be for a period of 10 years until 2009 when she attains 22 years of age. The multiplier at 6 per cent on the weekly tables is 395.5 and applied to $100 per week, it gives $39,550. From this sum, I would deduct 5 per cent for contingencies, leaving $37,572. The total figure I would therefore allow Tara is $84,372. Jordan is also entitled to past loss of dependency of $46,800, being the date between the death of his father and trial. Thereafter, he is entitled to $100 per week for a period of 13 years. The multiplier to be applied is 475.7, which gives $47,570. From this I would deduct 5 per cent for contingencies, leaving $45,191. The total to which I consider Jordan entitled is therefore $91,991.

102 Each of the children is entitled to interest on the past loss of dependency, and adopting the formula used by the learned trial Judge, the result is as follows:

Tara: $46,800 x 4 per cent x 9 = $16,848

Jordan: $46,800 x 4 per cent x 9 = $16,848

No deduction for contingencies should be made in relation to interest as it applies only to past loss of dependency.

103 The appellant's entitlement is as follows:

Past loss of dependency: $346,240

Less children's entitlement: $93,600

$252,640

Plus interest ($252,640 x 4 per cent x 9) $ 90,950

$343,590

Future loss of dependency $553,708

Less children's share:

Tara $37,572

Jordan $45,191 $82,763

$470,945

Less 25 per cent for contingencies: $353,208

TOTAL: $696,798

104 The end result is that I calculate the entitlement of the appellant and her children as follows:

Tara: $101,220

(Page 34)

Jordan: $108,839

Appellant: $696,798

Total: $906,857

105 After deducting one-third for contributory negligence, the entitlement is as follows:

Tara: $ 67,473

Jordan: $ 72,552

Appellant: $464,485

Total: $604,510

Special Damages

106 The only item of special damages which requires consideration is that of funeral expenses.

Funeral expenses

107 It appears from the learned trial Judge's reasons that the appellant and the estate of the deceased paid funeral expenses of $4495. In addition, a memorial was erected at a cost of $4600 and there were Cemetery Board fees of $540. The learned trial Judge disallowed the Cemetery Board fees but allowed the cost of the funeral service, casket fees, three-quarters of incidental expenses and the cost of the memorial (which his Honour described as a "headstone").

108 The respondent in the cross-appeal contends that his Honour erred in awarding $4600 for a "simple headstone" when the evidence showed "that the headstone was far from simple and the law allows recovery for only a simple headstone." At the hearing of the appeal it was argued that the learned trial Judge had erred in allowing the $4600 for the cost of erection of "a special memorial" and should have made no allowance at all because it was not a "funeral expense". This contention went further than the ground of appeal, but counsel for the respondent was allowed to pursue it.

109 Section 5(1) of the Fatal Accidents Act provides that in a fatal accidents action damages may be awarded "in respect of … the funeral expenses of the deceased person if the expenses have been incurred by the parties for whose benefit the action is brought". Counsel for the respondent relied upon Key v Commissioner for Railways (1941) 41 SR (NSW) 60 where a court comprising Jordan CJ, Halse Rogers and

(Page 35)

Roper JJ held that the cost of erection of a tombstone to the memory of the deceased was not recoverable as part of the reasonable expenses of his funeral under s 3(2) of the Compensation to Relatives Act 1897 (NSW). Jordan CJ (at 70) said:

"It was contended also that in any event the cost of subsequently erecting a tombstone in memory of the deceased was not recoverable as part of the reasonable expenses of the funeral. This is a question which constantly arises in these cases, but the practice has not been uniform. Some judges have ruled that the cost of a tombstone is recoverable, others that it is not. … The Act says that 'any reasonable expenses of the funeral of the deceased person may be recovered'. According to the dictionary meaning of the word 'funeral' - and this is its natural and ordinary meaning in New South Wales - it is the name given to 'the ceremonies connected with the burial (or cremation) of the body of a dead person,' 'a burial (or its equivalent) with the attendant observances.' It is common knowledge that the erection of a tombstone or other monument to the memory of a deceased person forms no part of his funeral and is unconnected with his burial. If a memorial is in fact erected at the place of the grave, this is not done at the time of the funeral, but is left for a considerable period until the ground has so settled as to make the site suitable for the purpose. I am of the opinion, therefore, that the cost of subsequently erecting a tombstone to the memory of the deceased is not recoverable as part of the reasonable expenses of his funeral."

The decision in Key v Commissioner for Railways (supra) appears to be the only decision of a Full Court on this subject. It was, however, delivered nearly 60 years ago, and Jordan CJ's reference to "common knowledge" at that time as to whether a monument to the memory of a deceased person forms part of his funeral and/or is connected to his burial does not accord with later views on the subject. The decision has however been followed in Australia in more recent times, particularly in the Supreme Court of the Australian Capital Territory, where in Cunningham v Nominal Defendant (1970) 17 FLR 61, Dunphy J described the reasoning of Jordan CJ as "good law and sound common sense", adding (at 63 - 64):

"If left to my own decision, I consider that the reasoning of Jordan CJ in Key v Commissioner for Railways makes good law and sound common sense, and I would have no difficulty in

(Page 36)

following the judgment of the Full Court of New South Wales. However I think that a very significant alteration has been made to the ACT Compensation (Fatal Injuries) Ordinance by the 1968 amendment which substitutes 'the reasonable expenses of burial of the deceased' for 'the reasonable expenses of the funeral of the deceased' as expressed in the 1938 Ordinance.

It seems to me that 'burial' connotes the interment of the deceased in the ground and nothing more, and therefore the word has a much more limited meaning than has 'funeral'. This is emphasized by the fact that the word 'cremation' follows the word 'burial'. This opinion is supported by the fact that the change was brought about by legislative action and the legislature must have intended the consequences of its action, which seems to me to cut down the benefit which may have been conferred by the use of the word 'funeral'. That change occurred through the enactment of an entirely new Ordinance and not via a simple amendment to s 5 of the original Ordinance."

110 It will be seen that the observation of Dunphy J in relation to Key v Commissioner for Railways was strictly obiter by reason of the alteration that had been made to the relevant legislation in the Australian Capital Territory. In Zotovic v Dobel Boat Hire Pty Ltd (1985) 62 ACTR 29, Blackburn CJ followed Cunningham v Nominal Defendant. In the course of his Honour's judgment, (at 32) he reviewed a number of authorities both in England and Australia:

"Two English cases, Hart v Griffiths-Jones [1948] 2 All ER 729 and Stanton v Ewart F Youlden Ltd [1960] 1 WLR 543, were both at first instance. In the former, the erection of a monument was held to be not included in the phrase 'funeral expenses'; in the latter, a portion of the cost of the gravestone which was necessary to complete the grave was held to come within that phrase, but the cost of a 'memorial set up as a sign of love and affection' was held to be outside it. In Henderson v Oswald [1965] WAR 54, a judge of the Supreme Court of Western Australia held that the reasonable cost of 'an ordinary stone or tablet on the grave, but not an expensive tombstone' was allowable under a statutory provision in exactly the same terms as the English one. In Hamlyn v Hann & Heagney [1967] SASR 387, a judge of the Supreme Court of South Australia decided to follow Stanton v Youlden and not to follow Key v

(Page 37)

Commissioner for Railways, being of opinion that there was a 'current of authority' which tended to extend the meaning of 'funeral expenses' which was the relevant phrase to be construed. The decision of Dunphy J after consideration of these authorities was that Key v Commissioner for Railways should be followed, and his Honour was fortified in this decision by the alteration to the law which was effected by the making of the Ordinance. The Ordinance superseded an earlier Ordinance in which the relevant words were exactly the same as those which had to be construed in Key v Commissioner for Railways, namely 'the reasonable expenses of the funeral'. Dunphy J held that 'the reasonable expenses of burial' was a narrower phrase than 'the reasonable expenses of the funeral'. This, he thought, was emphasized by the fact that the words 'or cremation' immediately follow the word 'burial'. His Honour held that the memorial headstone in the case before him could not possibly be brought within the phrase 'the reasonable expenses of burial'. He therefore disallowed that claim.

Since Cunningham's case there have been two further South Australian decisions on the meaning of 'funeral expenses' in the same context. In Doody v Federation Insurance Ltd (1977) 16 SASR 173, Hogarth J followed Hamlyn v Hann, holding that it was binding on him since, on appeal, the Full Court had increased the amount of damages but made no criticism of the decision of Bright J to include the cost of the headstone. In Tripodi v Leonello and Arnold (1981) 29 SASR 86, Sangster J said that the point did not go on appeal in Hamlyn v Hann, but followed the decision of Bright J on another ground, namely what was 'reasonable' by way of funeral expenses. But in my respectful opinion that view assumes that the expenditure in question was part of the 'funeral expenses', which is a prior question to whether the expenditure was reasonable."

111 Further cases are gathered together in Professor Luntz's work at pars 9.65 - 9.68, with the author commenting that "where the legislation does not so provide specifically (as it now does in New South Wales) there has been a division of opinion as to whether the cost of a tombstone may be recovered" (par 9.6.6). The learned author lists the cases in which headstone expenses have been allowed, commencing with the decision in Stanton v Ewart F Youlden Ltd [1960] 1 All ER 429 (par 9.6.6):

(Page 38)

"Then in Stanton v Ewart F Youlden Ltd [1960] 1 All ER 429, 432, McNair J held that 'a stone over a grave may properly be considered as part of the funeral expenses if it is a reasonable expenditure for the persons in the position of the deceased and of the relatives who are responsible for the actual ordering of the stone; but in so far as it is merely a memorial set up as a sign of love and affection, then it should not be included'. The distinction so made was confirmed in Gammell v Wilson [1982] AC 27 (CA & HL), 43, where it was said that the cost of a headstone, finishing off and marking the grave, is part of the funeral expenses, but a memorial is not. Meanwhile, in Henderson v Oswald [1965] WAR 54 Negus J allowed the cost of an ordinary stone or tablet such as would be placed on a single grave. Bright J followed Stanton's and Henderson's cases in Hamlyn v Hann [1967] SASR 387 (FC), 391, where the point was not raised on appeal to the Full Court. This was followed in Doody v Federation Insurance Ltd (1977) 16 SASR 173 and Tripodi v Leonello (1981) 29 SASR 86. Henderson's case was also preferred to Key's in Jurek v Solomon [1969] SASR 279, 281, though no claim for the cost of a headstone was actually made. In Suley v City Joiners Pty Ltd (1970) 65 QJPR 141 Hoare J allowed $150 for a tombstone, stating (at 143) that the 'more recent authorities indicate that a reasonable sum may be claimed for the erection of a headstone on a grave'."

112 In Gammell v Wilson [1982] AC 27 the Court of Appeal (Megaw & Brandon LJJ and Sir David Cairns) approved the reasoning of Rowlatt J in Goldstein v Salvation Army Assurance Society [1917] 2 KB 291, 295 and specifically approved the principle that "there is a distinction between a headstone finishing off, describing and marking the grave, which is part of the funeral expense, and a memorial, which is not". Sir David Cairns (at 55) thought the stone in the case to be "very near the boundary between a headstone and a memorial", but was prepared to agree that it was open to the trial Judge to allow what he did. The issue was not dealt with in the House of Lords as the appeal was on limited grounds which did not include reference to the subject of a headstone.

113 For some 35 years the decision in Henderson v Oswald [1965] WAR 54 has been followed in this State. The conclusion of Negus J (at 55) was succinct:

"It is convenient to deal with the claim for funeral expenses, etc, at once. Plaintiff is entitled to recover expenses reasonably

(Page 39)

incurred, including the cost of the funeral, the cremation and an ordinary stone or tablet on the grave, but not an expensive tombstone. The station in life and occupation of plaintiff and his wife is relevant on the question of what is reasonable: cf Goldstein v Salvation Army Assurance Society [1917] 2 KB 291; Key v Railway Commissioners (1941), 41 SR (NSW) 60; Hart v Griffiths Jones [1948] 2 All ER 729; Stanton v Youlden Ltd ]1960] 1 WLR 543; [1960] 1 All ER 429."

114 The claim in the case was for a headstone expenditure of £227, of which £75 was allowed. His Honour said:

"… The account of Smith & Co, however, is in a different category. Plaintiff's wife was cremated, not buried, and much of the work for which they charged seems to have been done to satisfy her parents' sentiments rather than to prevent the earth sinking in the family gave or to mark the place of burial of the ashes. I can only guess at a fair allowance. I should think £75 would be ample and will give judgment for that amount unless the parties would both prefer me to ask the Master to take evidence of the actual cost of an ordinary stone such as would be placed on a single grave, polished on one side and bearing a minimum inscription of the names of the wife and plaintiff and the dates of the wife's birth and death."

The reliance placed by Negus J upon Goldstein v Salvation Army Assurance Society (supra) and Stanton v Ewart F YouldenLtd (supra) was particularly important, as the Court of Appeal in Gammell v Wilson (supra) approved the reasoning in the former, which was echoed by McNair J in the latter case (at 432) as follows:

"There remains for consideration an item of £194 15s which was the amount of an account by Messrs J Samuel & Sons, monumental masons. That account was rendered on Aug 27, 1956, and it covers the following items: 'To marble memorial erected over the grave of Sarah Stanton including 120 lead letters, £155; To synagogue fees, £34 19s; to 90 extra letters at 1s 2d each, £5 5s'., making a total of £194 15s. That was paid by the plaintiff by two cheques, one for £100, dated Sept 3, 1956, and the other for £94 15s, dated Oct 10, 1956.

The question which I have to consider here is whether any part of that account can properly be regarded as funeral expenses, either as funeral expenses of the estate or as funeral expenses

(Page 40)

reasonably and properly incurred by the plaintiff in his personal capacity. The evidence on this point is extremely scanty. I am quite clear that in so far as the stone is merely a memorial erected some six months later to the memory of the wife, the payment for it, although some six months later to the memory of the wife, the payment for it, although it is a perfectly proper payment for a man in the plaintiff's position to make on his own behalf, cannot on any view be considered to be a funeral expense; on the other hand, if the truth be that no stone of any kind was erected over the grave at the time and that some time would have to be allowed for the grave to settle completely, then some part of the payment ought to be considered as a funeral expense. The legal position is that a stone over a grave may properly be considered as part of the funeral expenses if it is a reasonable expenditure for the persons in the position of the deceased and of the relatives who are responsible for the actual ordering of the stone; but in so far as it is merely a memorial set up as a sign of love and affection, then it should not be included."

115 In my view, the reasoning of McNair J is a correct statement of the law and should be followed by this Court. It is, in my view, more in keeping with contemporary understanding of the extent of funeral expenses than was the decision of Jordan CJ in Key v Commissioner for Railways some 60 years ago. It follows that the conclusion of Negus J in Henderson v Oswald (supra) should, in my view, be approved and followed by this Court.

116 In the present case there was a dearth of evidence on the subject of whether the "memorial" was merely a memorial, or whether it was a headstone which coincidentally also served as a memorial. The learned trial Judge had before him only an account of Bellevue Monumental Works which indicated that a "memorial" had been erected at a cost of $4400 to which extra artwork was added on the base at a further cost of $200. This suggests that the "tablet" was both a headstone and memorial. There was a note on the invoice to the effect that "the blue pearl vase has arrived and will be placed as soon as possible". There does not appear to have been any evidence before the learned trial Judge in relation to the cost of "an ordinary stone or tablet" but it does seem that the "memorial" erected was much more than such an ordinary headstone. This is not uncommon in cases of this nature. In Stanton v Ewart F Youlden Ltd, McNair J made "the best estimate" that he could and in Henderson v Oswald, Negus J made a "guess at a fair allowance". Doing likewise, I

(Page 41)

would allow one-half of the cost of the headstone, namely $2300. I would also allow the $540 for Cemetery Board fees which the learned trial Judge disallowed. His Honour mistakenly thought these fees related to the future burial of the plaintiff, whereas they in fact related to the burial of the deceased. The figure for funeral expenses should therefore be $7,335, made up as follows:

Funeral expenses $4,495

Headstone $2,300

Cemetery Board Fees $ 540

TOTAL $7,335

117 A deduction of one-third for contributory negligence would leave $4,889 to be added to the entitlement of the appellant, giving her an ultimate award of $469,374.

118 The awards then become:

Tara: $ 67,473

Jordan: $ 72,552

Appellant: $469,374

Total: $609,399

119 For these reasons, I would allow the appeal, set aside the award of damages made by the learned trial Judge and substitute for it that which I have set out above. I would allow the cross-appeal on the issue of funeral expenses, but otherwise dismiss it.