Emily Kepa, for and on behalf of the estate and dependants of Frank Billy, deceased v Lessbrook Pty Ltd (In Liquidation)
[2012] QSC 311
•12 October 2012
SUPREME COURT OF QUEENSLAND
CITATION:
Emily Kepa, for and on behalf of the estate and dependants of Frank Billy, deceased & ors v Lessbrook Pty Ltd (In Liquidation) [2012] QSC 311
PARTIES:
EMILY KEPA, FOR AND ON BEHALF OF THE ESTATE AND DEPENDENTS OF FRANK BILLY, DECEASED
(plaintiff)
v
LESSBROOK PTY LTD (ACN 010 855 875) (IN LIQUIDATION)
(defendant)FLORENCE KEPA, FOR AND ON BEHALF OF THE ESTATE AND DEPENDENTS OF FRED BOWIE,
DECEASED
(plaintiff)
v
LESSBROOK PTY LTD (ACN 010 855 875) (IN LIQUIDATION)
(defendant)FRANCIS BOWIE, FOR AND ON BEHALF OF THE ESTATE AND DEPENDENTS OF MARDIE BOWIE,
DECEASED
(plaintiff)
v
LESSBROOK PTY LTD (ACN 010 855 875) (IN LIQUIDATION)
(defendant)MIMIA WHAP, FOR AND ON BEHALF OF THE ESTATE AND DEPENDENTS OF HELENA WOOSUP, DECEASED
(plaintiff)
v
LESSBROOK PTY LTD (ACN 010 855 875) (IN LIQUIDATION)
(defendant)ELIZABETH STEPHEN, FOR AND ON BEHALF OF THE ESTATE AND DEPENDENTS OF GORDON KRIS, DECEASED
(plaintiff)
v
LESSBROOK PTY LTD (ACN 010 855 875) (IN LIQUIDATION)
(defendant)FILE NO/S:
191 of 2007
192 of 2007
193 of 2007
194 of 2007
195 of 2007DIVISION:
Trial
PROCEEDING:
Claim
ORIGINATING COURT:
Supreme of Queensland
DELIVERED ON:
12 October 2012
DELIVERED AT:
Cairns
HEARING DATE:
12, 13, 14, 15, 18 and 19 June 2012, 31 August 2012
JUDGE:
Henry J
ORDER:
In matter 191/07:
Judgment for the plaintiff (Emily Kepa, for and on behalf of the estate and dependents of Frank Billy, deceased) against the defendant in the sum of $500,000.1.
I direct pursuant to s 35(9) of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) that:2.
(a)$5,065.50 of the judgment sum is payable for funeral expenses;
(b) the balance of the judgment sum, after deduction from it of any costs not recovered from the defendant, shall be divided amongst the following persons in the following proportions:
(i)Emily Kepa 50.87 per cent
(ii)Sebastian Billy14.31 per cent
(iii) Xavier Joseph Billy15.17 per cent
(iv) Kurtrinah Kepa-Billy16.12 per cent
(v)Bessie Billy 3.53 per cent
I will hear the parties as to costs.3.
In matter 192/07:
Judgment for the plaintiff (Florence Kepa, for and on behalf of the estate and dependents of Fred Bowie, deceased) against the defendant in the sum of $500,000.1.
I direct pursuant to s 35(9) of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) that:2.
(a)$5,065.50 of the judgment sum is payable for funeral expenses;
(b)the balance of the judgment sum, after deduction from it of any costs not recovered from the defendant, shall be divided amongst the following persons in the following proportions:
(i)Florence Patricia Kepa43.9 per cent
(ii)Bettina Bowie9.56 per cent
(iii) Leon Bowie10.17 per cent
(iv) Renia Bowie11.42 per cent
(v)Solomon Bowie12.09 per cent
(vi) Fred Bowie Junior12.86 per centI will hear the parties as to costs.3.
In matter 193/07:
Judgment for the plaintiff (Francis Bowie, for and on behalf of the estate and dependents of Mardie Bowie, deceased) against the defendant in the sum of $388,255.20. 1.
I direct pursuant to s 35(9) of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) that:2.
(a) $5,065.50 of the judgment sum is payable for funeral expenses;
(b) the balance of the judgment sum, after deduction from it of any costs not recovered from the defendant, shall be divided amongst the following persons in the following proportions:
(i)Francis Bowie91.84 per cent
(ii)Johnny Tamwoy3.30 per cent
(iii) Anni Martha Bero4.86 per cent
I will hear the parties as to costs.3.
In matter 194/07:
Judgment for the plaintiff (Mimia Whap, for and on behalf of the estate and dependents of Helena Woosup, deceased) against the defendant in the sum of $500,000. 1.
I direct pursuant to s 35(9) of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) that: 2.
(a) $5,065.50 of the judgment sum is payable for funeral expenses;
(b) the balance of the judgment sum, after deduction from it of any costs not recovered from the defendant, shall be divided amongst the following persons in the following proportions:(i)Mimia Whap34.46 per cent
(ii)Ramsley Woosup 3.85 per cent
(iii) Glendon Woosup11.36 per cent
(iv) Tabua Woosup12.28 per cent
(v)Dereece Whap13.22 per cent
(vi)Rita Whap16.87 per cent
(vii)Robert Bagie 3.98 per cent
(viii) Olive Bagie 3.98 per cent
I will hear the parties as to costs.3.
In matter 195/07:
Judgment for the plaintiff (Elizabeth Stephen, for and on behalf of the estate and dependents of Gordon Kris, deceased) against the defendant in the sum of $500,000.1.
I direct pursuant to s 35(9) of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) that:2.
(a) $5,065.50 of the judgment sum is payable for funeral expenses;
(b) the balance of the judgment sum, after deduction from it of any costs not recovered from the defendant, shall be divided amongst the following persons in the following proportions:
(i)Elizabeth Stephen53.17 per cent
(ii)Ruby Stephen5.03 per cent
(iii)Fanny Stephen6.43 per cent
(iv)Emma Stephen7.67 per cent
(v)Fredricka Stephen11.39 per cent
(vi)Rim Stephen12.81 per cent
(vii) Maryanne Stephen0.36 per cent
(viii)Padaila Kris1.57 per cent
(ix)Wanika Mooka 1.57 per cent
I will hear the parties as to costs.3.
CATCHWORDS:
DAMAGES – DEPENDENCY CLAIM – ASSESSMENT OF DAMAGES – where a passenger aircraft crashed, killing passengers – where the spouse of each deceased passenger claims damages for and on behalf of the estate and the dependents – where the claims are made under the Civil Aviation (Carriers’ Liability) Act 1964 (Qld) which in turn applies part of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) – how that damage is to be assessed – how the value of services is to be assessed in pecuniary terms
DAMAGES – DEPENDENCY CLAIM – ASSESSMENT OF DAMAGES – whether the relatives’ share of the financial benefit the deceased would have brought to the family should be assessed using an averages approach or a factual approach – which averages approach is appropriate
DAMAGES – DEPENDENCY CLAIM – ASSESSMENT OF DAMAGES – LOSS OF INCOME – where each of the deceased were at the time of their deaths completing apprenticeships and or TAFE courses – whether they would have completed their courses – whether there were prospects of consistent employment on completion – how those factors are to be taken into account
STATUTES – INTERPRETATION – TRADITIONAL ADOPTION – where the relevant definition of family members included “adopted persons” – whether traditionally adopted persons are “family members”
STATUTES – INTERPRETATION – where s 35(3) of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) did not expressly address whether or not a passenger’s child born after the death was for the purposes of the section a child of the passenger – whether it can be said the child sustained damage within the section by reason of his father’s death
DAMAGES – DEPENDENCY CLAIM – ASSESSMENT OF DAMAGES – SERVICES – where each of the deceased provided services, including hunting and gathering – to what extent the hunting and gathering activities are compensable as a lost service – whether the award should be based on the loss of the material benefit of food on the table or by the hours such activity occupied – where the hunting and gathering is a way of life
DAMAGES – DEPENDENCY CLAIM – ASSESSMENT OF DAMAGES – SERVICES – whether the loss of each of the deceased as hunter-gatherer extends to the loss of parental education of traditional local knowledge and skill needed to fish
DAMAGES – DEPENDENCY CLAIM – ASSESSMENT OF DAMAGES – VICISSITUDES OF LIFE – where the deceased were indigenous – where indigenous persons have lower than average lifespans and higher than average incidence of poor health – whether the usual allowance for the vicissitudes of life should be increased –
STATUTES – INTERPRETATION – INTEREST AND COSTS – whether the financial cap under the applicable act is inclusive of interest
Civil Aviation (Carriers’ Liability) Act 1959 (Cth) pt 4
Civil Aviation (Carriers’ Liability) Act 1964 (Qld) s 4, s 5
Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 207BColombera v MacRobertson Miller Airlines [1972] WAR 68
De Sales v Ingrilli (2002) 212 CLR 338
Nguyen v Nguyen (1990) 169 CLR 245
Re M and the Adoption of Children Act (1989) 13 FamLR 333
Ruby v Marsh (1975) 132 CLR 642
Schimke v Clements & Suncorp-Metway Insurance Ltd [2011] QSC 182
Saunders v Ansett Industries (1975) 10 SASR 579
SS Pharmaceutical Co Ltd & Anor v Qantas Airways Ltd (1988) 92 FLR 231Swiss Bank Corp v Brink’s MAT Ltd [1986] QB 853
Thornton v Lessbrook Pty Ltd [2010] QSC 308COUNSEL:
G R Mullins for the plaintiffs
R Williams QC, T W Quinn, J Trevino for the defendantSOLICITORS:
Cleary and Lee for the plaintiffs
Norton White for the defendant
CONTENTS
Page Matters relating to all claims 7 Emily Kepa, for and on behalf of the estate and dependants of Frank Billy, deceased (191/07) 22
Florence Kepa, for and on behalf of the estate and dependants of Fred Bowie, deceased (192/07) 34
Francis Bowie, for and on behalf of the estate and dependants of Mardie Bowie, deceased (193/07) 45
Mimia Whap, for and on behalf of the estate and dependants of Helena Woosup, deceased (194/07) 54
Elizabeth Stephen, for and on behalf of the estate and dependants of Gordon Kris, deceased (195/07) 64
MATTERS RELATING TO ALL CLAIMS
Introduction
On 7 May 2005 a passenger aircraft crashed near Lockhart River in Far North Queensland. Among the lives lost in that tragedy were five indigenous persons from the communities of Injinoo and Bamaga, near the western tip of Cape York Peninsula.
They were:
1. Frank Billy, the de facto husband of Emily Kepa;
2. Fred Bowie, the de facto husband of Florence Kepa;
3. Mardie Bowie, the wife of Francis Bowie;
4. Helena Woosup, the de facto wife of Mimia Whap; and
5. Gordon Kris, the de facto husband of Elizabeth Stephen.
Each of the spouses of the deceased claim damages for dependency for and on behalf of the estate and dependents of each of the deceased persons.
These were not the only claims arising from the tragedy. A claim arising from the death of a policewoman in the crash was dealt with in Thornton v Lessbrook Pty Ltd.[1]
[1][2010] QSC 308.
It was convenient to hear these five claims together, particularly given the likelihood of generally similar approaches being adopted in the determination of the pecuniary value of the financial support and services provided by the deceased persons to their dependents.
The claims are made under the Civil Aviation (Carriers’ Liability) Act 1964 (Qld) which, pursuant to s 4, applies to the carriage of a passenger in an aircraft operated by the holder of an airline licence in the course of commercial transport operations under a contract for the carriage of the passenger within Queensland. This case involved such carriage.
Section 5 of the Queensland Act applies the provisions of pt 4 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (“the Commonwealth Act”) to such carriage. Within pt 4, s 28 imposes no fault liability upon the carrier for damage sustained by reason of a death or personal injury suffered by a passenger resulting from an accident on board the aircraft. However, s 31 of the Commonwealth Act limits the liability of a domestic carrier to the amount of $500,000 in respect of each passenger.
It is common ground that the no fault liability imposed by s 28 and its quid pro quo, the damages limit imposed by s 31, applies to the five claims. Quantum is in issue.
Legislative constraints
The liability under pt 4 of the Commonwealth Act is, pursuant to s 35(2), in substitution for any civil liability of the carrier under any other law in respect of the death of the passenger. Thus, the liability under the modern form of a Lord Campbell’s Act action contained in pt 4 of the Supreme Court Act 1995 (Qld) is excluded. This necessarily excludes the application of s 23A of the Supreme Court Act, which precludes the court from taking into account financial benefits that a spouse may receive as a result of a new relationship.
However, s 35(2) does not have the effect of excluding ch 3 of the Civil Liability Act 2003 (Qld). That chapter applies to assessment of, not liability for, an award of personal injury damages.[2] Personal injury includes fatal injury pursuant to the dictionary of Sch 2 of that act. The chapter’s provisions of potential relevance include s 57, which provides that in assessing an amount of damages as a lump sum for a future loss of gratuitous services the amount must be the present value calculated using the prescribed discount rate, which is five per cent.
[2]Civil Liability Act 2003 (Qld), s 50.
Who benefits?
Under the Commonwealth Act only one action is to be brought in respect of the death of any one passenger “for the benefit of all persons for whose benefit the liability is … enforceable”.[3] The amount recovered in the action is to be divided amongst the persons entitled in such proportions as the court directs.[4]
[3]Section 35(6).
[4]Section 35(9).
The liability imposed by s 28 is enforceable, pursuant to s 35(3), “for the benefit of such of the passenger’s family members as sustained damage by reason of his or her death”.[5]
[5]Section 35(3) (emphasis added).
Are traditionally adopted persons “family members”?
At the relevant time s 35(5) of the Commonwealth Act provided:
“For the purposes of subsection (3) the members of the passenger’s family shall be deemed to be the wife or husband, de facto spouse, parents, step-parents, grandparents, brothers, sisters, half-brothers, half-sisters, children, step-children and grandchildren of the passenger, and, in ascertaining the members of the passenger’s family, an illegitimate person or an adopted person shall be treated as being, or as having been, the legitimate child of his mother and reputed father or, as the case may be, of his adopters.”
An issue in the proceedings is whether traditional adoptions, well known to occur in the Torres Strait Islands and some Cape communities, gives rise to relationships within the definition of family members.
The practice of traditional adoption involves a child being given over in infancy to relatives of the child’s parents for those relatives to raise as their own child.[6] Such adoptions do not yet have legislative recognition.
[6]Nicholson CJ observed in Lara v Marley [2003] FamCA 1393 at [38] that the practice has a spiritual or cultural significance that is not relevant in “western adoption”.
The plaintiff identified an argument that such adoptions may now fall within the broader definition of family member contained in s 5 of the Commonwealth Act in its present form. However, the plaintiff did not press the argument[7] because the relevant legislation is the Commonwealth Act as it was at the time of the crash. It contained no such broader definition. The applicable definition of family member is that in s 35(5), referred to above.
[7]T6-28, L 55.
The words “adopted person” in s 35(5) are not defined. However, adoption has a meaning well known to the law, deriving from its history as an arrangement created by statute. As Young J observed in Re M and the Adoption of Children Act:
“Adoption came from Roman law ideas. Because of the feudal system in England there was little place for notions of adoption in the common law until it was introduced relatively recently by statute.”[8]
[8](1989) 13 FamLR 333, 334.
The ordinary meaning of an adopted person is a person who became the child of a person or persons other than the child’s biological parents in consequence of a formal legal event provided for by statute. That event will typically have the practical effect of extinguishing the legal rights and obligations that ordinarily exist as between biological parent and child and deeming those rights and obligations created as between the child and the adoptive parent or parents. In Queensland at the time of the crash that event was an order for adoption by the chief executive under the Adoption of Children Act 1964 (Qld). There is no suggestion of such an order having been made in any of the present cases.
The context of the references to an adopted person and adopters in s 35(5) does not suggest a broader than ordinary meaning. For instance, s 35(5) specifically recognised de facto spouse in addition to husband and wife. The latter derives from a formal legal event whereas the former does not. There could have been, but was not, a similar recognition in respect of informal or traditional adoptions. Section 35(5) does not include relationships by way of traditional adoption.
Those connected to a deceased by traditional adoption will only come within the Commonwealth Act’s definition of family members if they are in any event caught by the definition because of a legally recognised familial connection. For example, if a deceased male had been traditionally adopted by his grandparents and raised as if he were their own son, his grandparents would come within the definition of family member, not because they were his traditionally adoptive parents but because they were at law his grandparents.
Assessment methodology
The damage sustained by the family members, which attracts liability and thus falls to be assessed, is, pursuant to s 28 of the Commonwealth Act, “damage sustained by reason of the death”.
Section 35(8) provides that in awarding damages the court is not limited to the financial loss resulting from the death. This means the loss need not be a monetary loss and may include future expected financial benefits and services.[9] It may for instance include the value of services the deceased would have provided around the home.[10] However, to assess damages it will be necessary to value the loss in pecuniary terms.
[9]McKenna v Avior Pty Ltd [1981] WAR 255.
[10]De Sales v Ingrilli (2002) 212 CLR 338, 347, 348.
The loss to be assessed is the net pecuniary loss, that is, the balance of the pecuniary loss to the deceased’s relatives from the death over the pecuniary gains accruing from that event.[11] The proceeds of insurance policies or other benefits payable consequent upon death are excluded by s 38 from being taken into account in reduction of damages. An example given by Gleeson CJ in De Sales v Ingrilli[12] of a pecuniary gain accruing from death was the inheritance by a spouse of the capital from which the deceased spouse earned all of his or her income. None of the five cases here involved any material pecuniary gain accruing from death.
[11]Public Trustee v Zoanetti (1945) 70 CLR 266, 278; Lincoln v Gravil (1954) 94 CLR 430, 441; McKenna v Avior Pty Ltd [1991] WAR 255.
[12](2002) 212 CLR 338, 347.
The loss is the loss which occurred at the moment of death, as was explained by Gibbs J in Ruby v Marsh:
“What was then lost was a prospect of pecuniary benefit in the future. The expectation of future benefit was destroyed by the death and no subsequent event can increase or diminish the extent of the pecuniary loss then suffered…No doubt the effects of such a loss may continue to be felt over a very long period but the loss itself — the loss for which compensation is given — is incurred at the death.”[13]
[13](1975) 132 CLR 642, 658.
Notwithstanding that the loss of expectation of benefit is the loss which occurred at the time of death the conventional approach is to assess the loss of expected benefit in two stages, namely up to the time of judgment and thereafter.[14] Such an approach is justified, inter alia, on the basis that by the time of trial the court may take into account the events since death if relevant “in so far as they render it unnecessary for the court to speculate about possibilities that may have existed at the date of death when the facts themselves have become known”.[15]
[14]Discussed in Harold Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) 67, 68 (“Luntz on Damages”).
[15]Ruby v Marsh (1975) 132 CLR 642, 658.
Because the court is dealing with the hypothetical situation of predicting what would have happened had there been no death, the assessment process is inherently imprecise. It is not susceptible to scientific demonstration or proof.[16] While the use of the ostensibly precise device of mathematical calculations in the assessment process is appropriate, it is inevitable those calculations must be premised upon various imprecise assumptions as to future variables about which reasonable minds may differ.
[16]See, eg, the observations of Deane, Gaudron and McHugh JJ in Malec v JC Hutton (1990) 169 CLR 638, 643.
There exists a risk that an accumulation of conscientiously assessed variables may give rise to an unjust outcome. The obvious safeguard against that risk is to ensure not only that the assumptions made in the process are fair and reasonable but also that they give rise to an ultimate outcome which is fair and reasonable.
In De Sales v Ingrilli[17] Gleeson CJ helpfully explained the process of calculating damages for loss of expectation of pecuniary benefit:
“Calculating damages for the loss of a reasonable expectation of pecuniary benefit usually involves calculating a primary sum and then making such further adjustments or allowances as are necessary to produce a result that gives a true reflex of the loss. The nature of such adjustments and allowances will be influenced by the manner in which the primary sum is calculated. In a case like the present, there are three main elements in determining the primary sum. Each element involves speculative judgments, which cannot be made with accuracy. The court assesses what benefits the deceased would have brought to the family, in the form of either income or the provision of services. The court determines the share of that benefit that would have been enjoyed by a relative during the deceased's lifetime. And the court determines the period for which a relative could reasonably have expected to receive the benefit. For example, a surviving spouse may say that it was reasonable to expect to receive a benefit measured as a share of the deceased's income until the deceased's expected age of retirement. A child of the deceased may reasonably expect to receive such a benefit until the child reaches an age of expected financial independence. The primary sum awarded is the present value of a relative's total expected benefit. The calculation of the primary sum might itself be done by a method that involves allowing for contingencies such as are taken up in actuarial calculations of life expectancy, and the present value of a future income stream.
The court may then be required to allow for further contingencies that may affect the loss of benefit sustained by the claimant. Courts take account of such contingencies in two ways. Certain contingencies may be provided for by way of a general allowance for the ''vicissitudes of life''. Such contingencies may be relatively unlikely to occur, or their occurrence may be impossible to predict with any accuracy. Other contingencies may be more likely to occur, and more susceptible to specific calculation in the circumstances of a particular case.”
[17](2002) 212 CLR 338, 348.
In summary, it is therefore necessary to ask:
1. What is the value of the benefits the deceased would have brought to the family in income and services?
2. What share of that would each family member have enjoyed the benefit of during the deceased’s lifetime?
3. For what period could each family member reasonably have expected to receive the benefit?
4. What further contingencies should be applied to the primary sum so calculated?
Value of benefits brought by deceased
As already mentioned, the assessable benefits brought to the family by the deceased extend beyond the deceased’s earnings to the value of the deceased’s unpaid domestic services.
Services
The exercise of valuing lost services is theoretical and not premised on a requirement that they are in fact replaced because the fact they may not be replaced does not mean they were not a material benefit.[18]
[18]Ibid 256, 263, upholding the minority view of Gibbs J in Seymour v British Paints (Australia) Pty Ltd [1967] Qd R 227.
It is well settled that the loss of services commonly encountered in the setting of a suburban household, such as household maintenance and child care, is compensable.
Similarly, it is well settled that calculation of the value of those services is not approached by reference to the commercial value of replacement services, as it tends to be to assess the Griffith v Kerkemeyer[19] component in personal injuries cases. The distinction is that the latter form of case is concerned with valuing need whereas dependency cases are concerned with valuing loss.[20] The extent to which those values coincide in a case will vary.
[19](1977) 139 CLR 161.
[20]Nguyen v Nguyen (1990) 169 CLR 245, 263, 265, 267, 268.
It was explained in Nguyen v Nguyen that the actual expenses of substitute services is relevant in that it may provide some guidance, however:
“[T]he damages to be assessed are those suffered by the plaintiff and cannot always be equated with the cost of such help. The services formerly rendered by a deceased wife may not be capable of being reproduced faithfully by services which are commercially available and the scope and cost of the only services commercially available may be disproportionate in comparison with the scope and value of the services which were actually provided by the deceased wife. In circumstances such as that it will not be reasonable to regard the cost of substitute services as any more than a starting point in assessing a plaintiff's loss. Indeed, in cases where the disproportion is severe, the cost of commercially available services may offer no real guide at all.”[21]
[21](1990) 169 CLR 245, 265.
In the five cases here, the application of an hourly rate of $20 for the approximate hours of service by the deceased provides results after discounting that are fair and not disproportionate in comparison with the scope and value of the services that were actually provided by the deceased.
Hunting and gathering
A more difficult question arising in these proceedings is whether and to what extent the hunting and gathering activities of a deceased are compensable as a lost service. Evidence was lead of deceased having regularly hunted crayfish, fish, turtle and dugong and in turn supplying their families with food from the catch.
The defendant submits any award in connection with such activity ought not be based on the hours such activity occupied and should be based solely on the loss of the material benefit it delivered to the family, viz, food on the table. The defendant emphasises that approach is consistent with the principle that the damages are to be confined to compensation for the loss of the reasonable prospect of material benefits to dependents that depended on the continuance of the deceased’s life.[22]
[22]Public Trustee v Zoanetti (1945) 70 CLR 266, 279; Horton v Byrne (1956) 30 ALJR 583, 585.
The defendant also submitted there was really no loss of food from fishing in any event because the local community members would share their catch so that the families’ deceased would not go wanting. That submission involves a somewhat more optimistic outlook than is warranted by the evidence but in any event it wrongly focuses upon need when it is loss that is relevant. The plurality in Nguyen v Nguyen observed it is irrelevant to the assessment of loss that kind hearted relatives, friends and other community members may help out in the aftermath:
“Although the question must always be "what loss the claimant has in fact sustained by the death" (Baker v. Dalgleish Steam Shipping Co.), courts have been reluctant to conclude that where someone outside the immediate family voluntarily takes over the care of the household, especially the care of infant children, a deduction should be made from the assessment of damages due to a plaintiff, and reluctant to recognise that the loss suffered by a plaintiff is thereby reduced. The reasoning behind this reluctance has taken a variety of forms. In Hay v. Hughes, the grandmother of two children assumed their care upon the death of their mother, and the Court of Appeal held that the grandmother's services should be ignored in calculating the loss suffered by the children on the basis that:
“At the time of their mother's death it was anyone's guess what would happen to them and the defendant has not discharged the onus of establishing that at that time there was a reasonable expectation that the grandmother would act as she subsequently did.”
…In other cases, the reluctance has stemmed from the belief that the care provided by the relatives was not a consequence of the death of the deceased but flowed rather from an independent source, namely, the generosity and altruism of the relatives: Voller v. Dairy Produce Packers Ltd.; Wilson v. Rutter. In the words of Chapman J. in Rawlinson v. Babcock & Wilcox Ltd.
“The loss resulting from the death is one thing; the steps which may be taken as a result of spontaneous individual volition by one, two or three uncles or relatives or friends...to alleviate the loss so resulting are quite different. ...It would to my mind be quite odious if a court had to assess what benefits had accrued, or were likely to accrue, to a victim of a tragedy from such motives.”
…Whatever be the true basis of the reluctance – and it may be partly the belief that voluntary unsolicited assistance cannot be permanently relied upon – it has been accepted that this form of assistance should not be brought into account in relief of the wrongdoer.”[23]
[23](1990) 169 CLR 245, 266, 267 (citations omitted).
What then has been lost? It is not food on the table acquired with income. If it were, it would be subsumed within the loss of income component. Nor should the loss be confused as having a value necessarily commensurate with the purchase price of seafood at a fish shop in the context of an urban lifestyle in which most food is bought.
The loss is not the loss of food on the table per se. It is the loss of food on the table provided by the services of the deceased as part of a way of life; that is, it is the loss of a service. It is likely that service was in any event the only realistic option in that remote location by which such food could be readily procured and provided. However, the service was carried out in accordance with long standing custom, albeit with modern adjustments, such as outboard motors. Hunting and providing like this was a way of life. It bears no comparison to the occasional fishing trip to which some urban dwellers recreationally aspire. To value the provision of this service by reference to the purchase price of fresh seafood from a hypothetical (non-existent) local fishmonger is to value it only by reference to the urban way of life. It is in effect to say the only compensable method of provision of seafood in any way of life is the use of money to buy seafood. It is effectively to deny to the family served the intrinsic worth of a service that is integral to their way of life.[24]
[24]See Schimke v Clements & Suncorp-Metway Insurance Ltd [2011] QSC 182 for an example in the setting of a husband and wife’s farm in the Lockyer Valley of how a service performed by one of them was integral to their way of life.
It is appropriate to value this service by reference, as a starting point, to a price per hour of time spent performing it. It is an activity requiring special skill,[25] including the skilful use of spears and harpoons, which mostly results in a good catch. Drawing on the hourly rate of a qualified carpenter employed by the local Council, currently $23.40 and increasing to $24.10 next year, a reasonable allowance would be $25.00 per hour. However, as discussed earlier the hypothetical cost of a replacement service is only a starting point and care needs to be taken that its use does not give rise to a disproportionate outcome.
[25]As was explained, for example, in the evidence of Robert Bagie: Ex 1, Page 17-24.
In that context it would be unrealistic to attribute the entire time spent fishing as essential solely to the provision of food to dependents. Some component of that time was in some cases attributable to catching seafood distributed to persons who were not dependents. Also, some time was inevitably attributable to the inherent personal value it held to the deceased participant, who would also consume some of the catch. The aim of the exercise is to attribute a pecuniary value to a service, namely the provision of seafood to dependents in the context of the family’s way of life. That ought not be confused with attributing a pecuniary value to the way of life lived by the deceased or with provision of seafood to additional persons who were not dependents.
There will be some discounting of the compensable time to allow for those considerations and thus ensure the price per hour approach does not give rise to a disproportionate outcome.
Guidance and training
As to whether the loss of the deceased as a hunter-gatherer extends beyond the loss of the provision of food, the plaintiff submits that part of the loss also involves the loss of parental education. In particular, it is submitted the loss includes the value of a deceased imparting traditional local knowledge and skill needed to fish to a deceased’s children when they would accompany a deceased fishing. This submission finds support in the authorities,[26] however, it is irrelevant given that ultimately none of the evidence in the five cases identified any delineation between general time spent caring for children by the deceased and time spent specifically educating them in traditional fishing and hunting.
Share of benefit
[26]Regan v Williamson [1976] 1 WLR 305, 309; Nguyen v Nguyen (1990) 169 CLR 245, 256, 263, 264.
Income
There are two potential methods of assessing the relatives’ share of the financial benefit the deceased would have brought to the family.
One is an averages approach. That approach might involve the use of basic rules of thumb as explained in Luntz on Damages:
“Thus for a period of dependency where there are no children, one-third of the deceased’s income is deducted, on the conventional assumption that one-third of the income is spent for the benefit of each of the partners personally and one-third for their joint benefit. During a period when there are children, the deduction for the deceased’s own expenditure is reduced to 25%. … [In the case of two income families the] two incomes are added together, the conventional dependency figure is then applied (66% if there are no children, 75% if there are) and then the survivor’s income is deducted.”[27]
A variant of the averages approach is the use of average dependency percentages derived from household expenditure surveys, as explained in table 9.1 in Luntz on Damages.
[27]Luntz on Damages, 499, 500 (citations omitted).
The other method is the factual approach of calculating the apportionment of income that as a matter of fact occurred. That method is said by Luntz to be fraught with contingencies and the subject of often unreliable, evidence so the averages approach is preferred, at least as a starting point.[28]
[28]Ibid 499.
The defendant submits the factual approach is particularly inappropriate here because of the dearth of specific evidence of expenditure and because the witnesses exhibited difficulty in the witness box providing factual detail of the kind supplied in their filed statements, which served as evidence in chief pursuant to directions.[29] The plaintiffs acknowledge the absence of records of expenditure and the absence anyway of any particular complexity in the financial lives of each of the deceased. They urge the adoption of table 9.1 in Luntz on Damages.[30]
[29]Defendant’s Outline [117], [118].
[30]Plaintiffs’ Outline [25].
That table of dependency percentages, prepared by reference to household expenditure surveys, is essentially a refined version of the averages approach. The defendant submits the use of the table is probably inappropriate, because the broad categories of expenditure considered in the survey are not all apt for families in the Injinoo and Bamaga communities.[31] The same might be said however of many families in many places. It was in the nature of the exercise that gave rise to table 9.1 that it necessarily involved averaging out diverse results. It is nonetheless a useful guide. Obviously significant or unusual individual circumstances would warrant some adjustment of the figures arrived at by whichever averages approach is adopted.
[31]Defendant’s Outline [115].
In the circumstances, I intend to take the averages approach by reference to table 9.1 and where appropriate adjust the figures arrived at to allow for the individual circumstances of each case.
Services
There will be three main categories of services assessed in the claims. The first, domestic assistance, includes internal and external housework. The second, child care, relates to time spent taking care of the children of the relevant household. The third, fishing and hunting, relates generally to the provision of seafood.
The plaintiff’s proposed approach to assessing the dependents’ shares of each of these varied. This aspect was not discretely identified by the defendant, which chose not advance its own proposed quantum calculations or submit any detailed assessment urged by it in respect of any of the cases.[32]
[32]The sole calculations it provided in submissions were limited to some income calculations advanced in the light of improved median income levels disclosed by the 2011 Census.
In respect of the latter two categories, child care and fishing and hunting, the plaintiff submits the total value of the services ought be divided equally as between each dependent. This is fair on the face of it in respect of child care. As to fishing and hunting it may on one view slightly disadvantage the spouse in later years when the spouse is the only dependent because tasks such as preparing to take the vessel onto the water and time taken in travelling to fishing spots are unlikely to vary in a proportionate way depending on the number of people to be supplied. It follows there can be no disadvantage to the defendant in adopting the proportionate approach pragmatically advanced by the plaintiff.
As to the former category, domestic assistance, the plaintiff characterises it as a service to the dependent spouse only, so that no part of the amount is apportioned to child dependents. On one view the dependent spouse was not the sole beneficiary of this service and all dependent members of the household suffered damage as a result of the loss of the service. However, responsibility for running households, which includes ensuring housework is tended to, does not rest with dependent children. The cases reveal a varied approach to this issue.[33] In the present five cases the position of counsel for the plaintiffs must be assumed to have been advanced with the interests of all dependants in mind. I accept it is appropriate, as the plaintiff urges, to compensate the surviving spouse only in respect of this category.
[33]Discussed in Luntz on Damages [9.4.6], footnotes 259, 260.
However, the taking of that approach may confer additional advantage to the surviving spouse in the years after the children are no longer dependents. For example, if domestic assistance took 12 hours a week in a household of five children it may be that, depending on the nature of the assistance, 12 hours a week would no longer be required once the children are no longer dependent. That is not to say the hours required would reduce proportionately. For example, the time taken to wash clothes may reduce but a lawn will take the same time to mow regardless of how many children remain dependent. I will, though, where the assistance provided makes it appropriate to do so, allow for a reduction in hours needed in assessing the value of the service in the era when children are no longer dependents.
Connected with this is the reality that as children grow older they become more able to contribute to housework, even though still dependents. That consideration means that I will take into account that there would have been some easing of the hours of service even before the children ceased dependency in determining the extent of the abovementioned reduction.
Period of expected benefit
Dependent children
In the case of dependent children, in each of the five claims the plaintiff has not contended that the period of dependency should extend beyond 18 years of age. I will cease calculation of dependency for children by reference to their 18th birthday.
Spouse
The period of dependency in respect of the relevant spouse will be premised on the relationship having been a lasting one but for the death. The prospect that the relationship might at some stage in the future have broken up will be catered for in discounting for the ordinary vicissitudes of life.
At trial, the defendant repeatedly explored the prospect of spousal dependency ceasing by reason of the spouse entering into a new relationship.
The current general principle is that the mere hypothetical prospect of re-marriage or future entry into a de facto marriage is no more or less a part of the general vicissitudes of life than the prospect of divorce or separation and no allowance for it, either additional to or separate from that otherwise made for general contingencies, ought be made.[34]
[34]De Sales v Ingrilli (2002) 212 CLR 338, 366, 395.
Where the prospect is more than hypothetical, and supported by evidence of entry into a new marriage or de facto marriage or of a concrete intention to do so, such evidence without more would not warrant a variation in approach. Such evidence would also need to include evidence of the probable financial consequences of the relationship and show that those financial consequences will be financially beneficial to the claimant for it to be taken into account. Even then, it ought not be assumed those financial consequences will inevitably continue.[35]
[35]Ibid 367. See also Thornton v Lessbrook Pty Ltd [2010] QSC 308, [76]-[83].
Despite the time invested by the defendant in exploring this issue in evidence the upshot is that there was no evidence in any of the cases of a concrete mutual intention to enter into and maintain a permanent new spousal relationship, let alone evidence of any substance as to the probable financial consequences thereof.
Contingencies
The defendant acknowledges the general allowance for contingencies or the vicissitudes of life is typically 15 per cent.[36]
[36]Defendant’s Outline [181].
However, the defendant submits the circumstances of the indigenous communities of the deceased and plaintiffs are not typical, pointing in particular to lower than average lifespans and higher than average incidence of poor health among indigenous persons.[37] They submit “an unusually high general discount should be applied for contingencies before proceeding to deal with the especially notable features of the individual claims”.[38]
[37]Ex 26, Tabs 14, 15.
[38]Defendant’s Outline [182].
The plaintiff initially contended that no regard ought be had to below average longevity or above average incidence of health problems of indigenous persons, the implication being that regard should only be had to the averages for Australians generally. Indigenous persons form part of the broader overall population base from which general statistics about health and longevity are drawn. It obviously follows those statistics ought not be disregarded merely because a case involves indigenous persons. The plaintiff submitted, and I accept, that the apparently lesser longevity of indigenous persons should only impact upon the contingency discount to the extent of a couple of per cent.[39] If there is specific evidence relating to the poor health or life expectancy of someone in a particular case that is obviously a feature that can properly warrant a discount of greater substance. However, in the absence of such evidence it would not be reasonable to discount to a significant extent, that is, beyond the couple of per cent conceded by the plaintiff, to allow for the generally lower life expectancies and higher incidence of health problems of indigenous persons.
[39]T6-58, L 45.
I will discount generally for the vicissitudes of life, in some instances beyond 15 per cent, particularly when making assessments of future loss. The higher discounting adopted for future loss will reflect the higher variability inherent in forecasting well into the future and subsume the aforementioned modest discount conceded by the plaintiff in respect of the health and longevity of indigenous persons.
Any discounting or reductions for especially notable features will be identified separately from general discounting for the vicissitudes of life with a view to avoiding unintended double discounting.
Apportionment
The plaintiffs submit, assuming the award exceeds the cap, that the apportionment to be directed pursuant to s 35(9) ought reflect each dependent’s proportionate share of what the total award would be but for the cap. Save for the issue of funeral expenses the submission is uncontroversial. It is prima facie the fairest method and it is not suggested there is evidence in this case warranting a departure from it.
The amount awarded for funeral costs is intended to reimburse an actual expense incurred in direct connection with death. It is of a different character than the balance of the award. Full reimbursement of that expense ought be assured. In the event the total award exceeds $500,000 I will award the full funeral cost and apportion the balance of the $500,000 as discussed above.
Credibility of information relied on
Much of the information needed for the assessment process came from the plaintiffs’ witnesses, including the content of their witness statements provided pursuant to a pre-trial direction and exhibited largely in lieu of evidence in chief. The defendant submitted generally that the information advanced through the plaintiffs’ witness statements was unreliable “because most of the witnesses were unable or unprepared to respond to important questions asked in cross-examination”.[40]
[40]Defendant’s Outline [27]
I reject that submission. I detected no such general trend of witness inability or unwillingness to answer questions. There were times when the indigenous witnesses of the plaintiff appeared to be slow in answering questions or seemed confused by the wording of questions. These are traits well known by the court as common to many indigenous witnesses from remote communities. Eliciting information from such witnesses is difficult enough for the purposes of taking a written statement. However, in a courtroom it requires particular patience and the use of questioning genuinely rather than superficially calculated at actually obtaining information. The cross-examination in the case was entirely courteous and proper, but, as might be expected of cross-examination, it was not of a nature likely to have obtained significant amounts of detailed information from such witnesses.
The examination and cross-examination of the witnesses in court did not, in the general sense asserted by the defendant, indicate the information provided in the witness statements ought be regarded as unreliable.
Fund management fees
The plaintiff claims fund management fees as charged from time to time by the Public Trustee of Queensland according to the Public Trustee Act 1978 (Qld) and regulations on all claims in respect of minors.[41]
[41]See Further Updated Statements of Loss and Damage.
The defendant submits the plaintiff has not pleaded or particularised any claim for fund management fees in respect of any of the children of the deceased persons.
The calculation of any management fees that might be awarded turns upon the quantum of the awards I will make. It was common ground between the parties that the potentially complicated calculation of management fees would be best left for further submissions failing agreement on the topic between the parties once my reasons are known. However, it also appeared to be common ground that in the event an award exceeds $500,000 and the award is thus capped at $500,000, the issue is academic.
As will be seen the awards in four of the five cases will reach the capped amount. Further, in the one claim falling short of that mark the relevant dependent has already come of age and will not need fund management. There is therefore no need to reserve this issue for further consideration after delivery of my reasons.
Superannuation
The defendant submits that because superannuation contributions are not available until retirement, the prospect of the spouses of the deceased enjoying that financial benefit was remote and so speculative as to warrant heavy discounting if allowed at all.
The plaintiff acknowledged one way to make allowance for superannuation was to take it into account as a generally positive contingency, rather than assess it specifically. The alternative of a purported specific assessment would be so qualified by variables that would be unlikely to deliver precision.
In the circumstances, in determining the appropriate discounting in respect of the future loss of income of surviving spouses I will simply have general regard to superannuation as a positive contingency.
Interest and costs
The defendant submits the financial cap on liability in s 31 of the Commonwealth Act is inclusive of interest and legal fees. The liability to which s 31 refers, as is apparent from s 28 and s 35, is the liability for damage sustained by reason of the death.
On the ordinary meaning of that language costs do not fall within the capped amount, because they are not part of the value of the damage sustained. Rather, they represent the separate financial consequence of the plaintiffs having to institute proceedings to recover that which the defendant is obliged by law to pay.
This conclusion accords with the conclusion reached by Applegarth J in Thornton v Lessbrook Pty Ltd,[42] following Colombera v MacRobertson Miller Airlines.[43]
[42][2010] QSC 308, [143]-[147].
[43][1972] WAR 68.
As to whether interest falls within or without the capped amount, the view that interest is not included in the capped amount was adopted in South Australia in Saunders v Ansett Industries.[44]The liability to which the cap applies is the damage sustained by reason of the death. Interest is arguably not part of the value of that damage because the damage sustained is the pecuniary value of the loss of expected benefit at the time of death, not the time of judgment.
[44](1975) 10 SASR 579.
The value of the loss at the time of death obviously did not include interest. The purpose in awarding interest is to ensure adequate compensation for the plaintiffs having been deprived of the pecuniary value of their loss during the lapse in time between the loss and the judgment. Put differently, it is to ensure a plaintiff is not financially disadvantaged in the quantum of its award by delays in a defendant honouring or being forced to honour its lawful obligation.
However, delays are not always the fault of a defendant. Delay in litigation can sometimes be the result of the unrealistic expectations of a plaintiff or other variables over which a carrier has little control. It would be a curious outcome if a provision intended to cap carriers’ financial liability left carriers liable to pay more than the cap by reason of the vagaries affecting the speed of disposition of cases in the jurisdiction where the action proceeds.
The better view is that the amount of the cap on liability is inclusive of any interest. That was the preferred view in Swiss Bank Corp v Brink’s MAT Ltd.[45] That matter was followed in SS Pharmaceutical Co Ltd & Anor v Qantas Airways Ltd,[46] which the plaintiff accepts is the most persuasive authority on the point.[47]
[45][1986] QB 853.
[46](1988) 92 FLR 231 244, 245.
[47]Plaintiffs’ Outline [199].
The correct interpretation then is that s 31’s limitation on financial liability is inclusive of interest.
Workcover payments
Workcover has made substantial payments to persons in consequence of the deaths with which the present claims are concerned.[48] Not all of those persons are dependents entitled to damages in the present claims.
[48]Ex 21-25.
Section 207B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) in effect provides an amount paid by Workcover as compensation to a person is a first charge on any amount of damages recovered by the person to the extent of the amount paid and the entity from whom damages are recoverable must pay Workcover the damages to the extent of the amount of the first charge.
The plaintiff submits this provision raises the risk that the defendant’s insurer might pay all damages to Workcover notwithstanding that there will not be a complete coincidence in identity of the dependents who are awarded damages in the claims and the persons who received compensation from Workcover. The plaintiff therefore seeks a stay of the judgment once pronounced, with a view to advancing argument before me about the distribution of the damages payments.
The plaintiff’s submission is premised on the defendant erroneously paying money to Workcover in an amount greater than that component of the compensation that was paid by Workcover to the successful dependents in these claims. There is no reason at this stage to assume the defendant will make such an error. Indeed, it is contrary to its financial interests to do so. It cannot wash its hands of its obligation to pay damages by making erroneous payments to Workcover.
In the circumstances I will not delay or stay judgment to accommodate argument on an issue that is presently academic.
Each of the claims now falls for consideration in the light of the foregoing overview.
EMILY KEPA, FOR AND ON BEHALF OF THE ESTATE AND DEPENDENTS OF FRANK BILLY (191 OF 2007)
Persons concerned
The persons concerned in this claim are:
Deceased: Frank Lawrence William Billy, born 23 March 1984
His de facto wife: Emily Kepa, born 15 February 1976 (now 36)
His children: Sebastian Billy, born 8 October 2001 (18 in 2019)
Xavier Joseph Billy, born 10 February 2003 (18 in 2021)
Kurtrinah Kepa-Billy, born 30 December 2003 (18 in 2021)
His natural mother: Bessie Billy
The plaintiff asserts that in addition to the above persons, Gordon and Gloria Solomon also come within the Commonwealth Act’s definition of family members. No sufficient evidence has been advanced that they do.
The relevant evidence was given in the statement of Emily Kepa:
“Frank was a member of a large extended indigenous family. His natural father was Lionel Solomon and his natural mother was Bessie Billy. I am not entirely certain of the identity of his adoptive father and mother, but I think it was either Gordon and Gloria Solomon or the mother, Marjorie Solomon.”[49]
[49]Ex 4, Page 2.
That evidence is ambiguous as to whether Gordon and Gloria Solomon were in fact the persons who traditionally adopted Frank Billy but as already explained traditional adoption will not make a person a family member within the meaning of the Commonwealth Act. There is no evidence that Gordon or Gloria Solomon come within any of the relationships within the Act’s definition of family member. They are not potential beneficiaries of an award under the Act.
Background
Before Frank Billy’s death he, his de facto wife Emily Kepa and their three children lived at 41 Ware Street, Injinoo.
Frank Billy and Emily Kepa had been in a permanent relationship since 2000.
At the time of Frank Billy’s death, Emily Kepa was occupied caring for their children and not in paid employment.[50]
[50]Ibid 3.
The defendant emphasised that since the crash Emily Kepa has had two children to other men, one of whom visits her from time to time and provides some assistance around the home. The evidence fell well short of there being any concrete intention to enter into a permanent de facto relationship and of any material financial beneficial consequences. Such limited evidence of assistance by her male visitor as was given was not materially relevant to quantifying the value of her loss.
Ms Kepa’s statement only referred to one of the two children she had had since the crash. However, the one she did not mention was traditionally adopted out. This is an obvious explanation why her statement did not mention the child. I detected no lack of candour in Ms Kepa. She appeared to be a credible witness.
Income – past loss of benefit
At the time of his death, Frank Billy was employed as an apprentice carpenter by the Injinoo Community Council. The apprenticeship was funded by the Commonwealth Development Employment Project Scheme (“CDEP”). He commenced the apprenticeship on 31 March 2003 and was due to complete it on 29 March 2007.[51]
[51] Ibid.
Forecasting his likely income until the point he was due to complete his apprenticeship on 29 March 2007 is relatively straightforward. However, the parties are poles apart as to what was likely to then follow.
The defendant submits Frank Billy would not have completed his apprenticeship and that even if he did there is scant evidence of his prospects of consistent employment as a carpenter. It submits that the most appropriate guide to his likely future income is the median total personal weekly income figure published in the Australian Bureau of Statistics Census Profile for Injinoo.
The plaintiff submits Frank Billy would have completed his apprenticeship and progressed at the very least to employment as an employed carpenter. While there was evidence led of the potentially higher income he could earn as a subcontract carpenter or a carpenter in the mining industry that was not pressed as a basis for assessment. That moderation in approach is appropriate in light of Emily Kepa’s evidence. She said Frank Billy enjoyed construction work and was looking forward to being a carpenter in the community and Torres Strait region. However while she said he might even have pursued work in big construction projects a little further afield he was unlikely to move away from his local community for lengthy periods.
It ought be appreciated that in not pressing for an assessment of Frank Billy’s future income by reference to the income he could potentially earn as a subcontract carpenter or carpenter in the mining industry the plaintiff was not conceding such a possibility was completely unlikely. Not all contingencies are adverse. The favourable contingency that Frank Billy might potentially have earned more than an employed carpenter is not fanciful.[52] It remains of background relevance in identifying what discounting for contingencies ought occur in the imprecise exercise of forecasting likely income.
[52]The example of Mimia Whap, who was a parks and gardens labourer at the time of the crash and is now earning over $80,000 a year truck driving in the mines, demonstrates significant increases in income for persons from remote communities are not fanciful.
Funeral expenses
An award for funeral expenses paid by Workcover in the amount of $5,065.50[171] is sought. There is no issue taken by the defendant in respect of the reasonableness of that amount.
[171]Ex 22; Further Updated Statement of Loss and Damage.
There should be an award of $5,065.50 for funeral expenses.
Management fees
There is no need to consider management fees because the award total exceeds $500,000.
Total award
The total award is therefore:
| Dependent | Past Economic Loss | Future Economic Loss | Past Loss Services | Future Loss Services | Total |
| Elizabeth | $66,854.91 | $163,331.69 | $46,053.00 | $64,685.25 | $340,924.85 |
| Ruby | $14,055.12 | $18,152.60 | $32,207.72 | ||
| Fanny | $18,833.93 | $22,416.20 | $41,250.13 | ||
| Emma | $22,578.84 | $946.62 | $25,000.20 | $668.80 | $49,194.46 |
| Fredricka | $22,578.84 | $16,595.37 | $25,000.20 | $8,876.80 | $73,051.21 |
| Rim | $22,578.84 | $22,966.58 | $25,000.20 | $11,552.00 | $82,097.62 |
| Maryanne | $2,329.00 | $2,329.00 | |||
| Padaila | $6,579.00 | $3,480.00 | $10,059.00 | ||
| Wanika | $6,579.00 | $3,480.00 | $10,059.00 | ||
| Funeral | $5,065.50 | ||||
| Total | $646,238.49 |
That amount is fair and reasonable but it exceeds the $500,000 limit, so there will be judgment for the plaintiff against the defendant in the sum of $500,000.
It is necessary to direct an apportionment of that amount as between the various dependents.
Apportionment
Subject to the deduction from that balance of any costs not recovered from the defendant, the balance shall be divided proportionately among the remaining dependents.
The proportionate entitlements are calculated as follows:
$646,238.49 - $5,065.50 = $641,172.99
Elizabeth: 100/641,172.99 x 340,924.85 = 53.17 per cent
Ruby: 100/641,172.99 x 32,207.72 = 5.03 per cent
Fanny: 100/641,172.99 x 41,250.13 = 6.43 per cent
Emma: 100/641,172.99 x 49,194.46 = 7.67 per cent
Fredricka: 100/641,172.99 x 73,051.21 = 11.39 per cent
Rim: 100/641,172.99 x 82,097.62 = 12.81 per cent
Maryanne: 100/641,172.99 x 2,329 = 0.36 per cent
Padaila: 100/641,172.99 x 10,059 = 1.57 per cent
Wanika: 100/641,172.99 x 10,059 = 1.57 per cent
Orders
My orders in claim 195 of 2007 are:
1. Judgment for the plaintiff (Elizabeth Stephen, for and on behalf of the estate and dependents of Gordon Kris, deceased) against the defendant in the sum of $500,000.
2. I direct pursuant to s 35(9) of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) that:
(a) $5,065.50 of the judgment sum is payable for funeral expenses;
(b) the balance of the judgment sum, after deduction from it of any costs not recovered from the defendant, shall be divided amongst the following persons in the following proportions:
(i) Elizabeth Stephen 53.17 per cent
(ii) Ruby Stephen 5.03 per cent
(iii) Fanny Stephen 6.43 per cent
(iv) Emma Stephen 7.67 per cent
(v) Fredricka Stephen 11.39 per cent
(vi) Rim Stephen 12.81 per cent
(vii) Maryanne Stephen 0.36 per cent
(viii) Padaila Kris 1.57 per cent
(ix) Wanika Mooka 1.57 per cent
3. I will hear the parties as to costs.
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