Gary Charles Armstrong by his next friend Katrina Theresa O'Pray v Proctor
[2003] WADC 252
•18 NOVEMBER 2003
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GARY CHARLES ARMSTRONG by his next friend KATRINA THERESA O'PRAY & ORS -v- PROCTOR [2003] WADC 252
CORAM: BLAXELL DCJ
HEARD: 21, 22 AUGUST 2003
DELIVERED : 18 NOVEMBER 2003
FILE NO/S: CIV 2853 of 2000
BETWEEN: GARY CHARLES ARMSTRONG by his next friend KATRINA THERESA O'PRAY
First Plaintiff
CASEY MARIE FISHER
Second PlaintiffSTEVEN BRIAN FISHER
Third PlaintiffAND
MARK PETER PROCTOR
Defendant
Catchwords:
Negligence - Motor vehicle accident - Claim for damages under Fatal Accidents Act 1959 - Whether each of the plaintiffs suffered pecuniary loss - Whether the deceased stood "in loco parentis" to the second and third plaintiffs - Whether deceased was contributorily negligent by failing to wear a seatbelt
Legislation:
Fatal Accidents Act 1959
Result:
First, second and third plaintiffs awarded damages of $33,024, $10,270, and $8,535 respectively
Representation:
Counsel:
First Plaintiff : Mr K S Pratt
Second Plaintiff : Mr K S Pratt
Third Plaintiff : Mr K S Pratt
Defendant: Ms B A Mangan
Solicitors:
First Plaintiff : Stephen Browne Lawyers
Second Plaintiff : Stephen Browne Lawyers
Third Plaintiff : Stephen Browne Lawyers
Defendant: Phillips Fox
Case(s) referred to in judgment(s):
Aafjes v Kearney (1976) 8 ALR 455
Bennet v Bennet (1879) 10 Ch D 474
Khan v Terry Shields Toyota Pty Ltd (1990) 6 NSW CCR 233
McIntosh v Williams [1976] 2 NSWLR 237
Nash v Commissioner for Railways (1962) 63 SR (NSW) 357
Potts v Niddrie & Benhar Coal Co Ltd (1913) AC 531
Case(s) also cited:
Barnard v Towill (1998) 72 SASR 27
Coe v Kernovske (1990) 10 MVR 563
Commissioner for Railways v Nash [1963] NSWR 30
David Peter Jonkers v SA Police [1996] 67 SASR 401
Hoare v Rudd (1989) 9 MVR 229
Hornery v O'Neal (1995) 21 MVR 457
Hunt v National & General Insurance Co Ltd [1974] Qd R 157
Johnson v Ryan [1977] 1 NSWLR 294
Lee v Burn (1998) 27 MVR 186
Nigel Mark Cartwright v Her Majesty's Advocate [2001] ScotHC 46
Nominal Defendant (NSW) v Neal (1995) 21 MVR 29
Phillips v Camerson & Ors [1999] EWHC Ch 245
R v CT [2001] ACTSC 65
Richard v Mills [2003] WASCA 97
Rosecrance v Rosecrance (1998) 27 MVR 371
Till v Theuma (1994) 19 MVR 61
Wakefield v Tilbee [1999] 22 SR (WA) 343, [1999] WADC 43
Williams v The Commissioner of Road Transport &Tramways (NSW) (1933) 50 CLR 258
BLAXELL DCJ: In this action a claim is made under the Fatal Accidents Act 1959 on behalf of each of the plaintiffs for damages allegedly sustained by them as a result of the death of Gary Charles Armstrong ("the deceased") on 7 November 1999. At the time of his death the deceased was a passenger in a vehicle being driven by the defendant which left the road and rolled over. The defendant admits that the death resulted from his negligence in the manner of driving of the vehicle.
The first plaintiff was born on 27 September 1989 as a result of a relationship between the deceased and Katrina Theresa O'Pray. The second and third plaintiffs are twins born on 2 November 1984 as a result of a previous relationship between Ms O'Pray and one Allen Fisher. It is claimed that for a period of approximately 10 years up until the date of death, all three plaintiffs were financially dependent upon the deceased.
Apart from the quantification of the damages that may be recoverable, the issues that I am required to determine can be summarised as follows:
(a)Whether the deceased was contributorily negligent in failing to wear a seatbelt while travelling in the vehicle at the time of his death;
(b)Whether, immediately before his death, the deceased stood "in loco parentis" to each of the second and third plaintiffs;
(c)Whether each of the plaintiffs have sustained pecuniary loss as a result of the death.
Whether there was contributory negligence
It is common ground that at about 3.00 am on 7 November 1999 the deceased was one of two passengers in a Toyota Tray Top Utility being driven by the defendant along Park Ridge Drive, Bouvard. The vehicle had seatbelts fitted for the driver, the passenger, and another person seated in the middle. The deceased was seated in the lefthand passenger's position.
As a result of the defendant travelling at an inappropriate speed and failing to properly control the vehicle, it left the road, mounted the lefthand verge, and rolled over several times. The police officers who later attended the scene had been notified of the accident at approximately 3.15 am, but did not arrive until approximately 5.00 am. By that time an ambulance had taken the defendant and middle seat passenger to hospital, and the police officers found the deceased's body lying near the driver's door outside the vehicle. The police officers also observed that the seatbelts for the driver and middle passenger had been cut, whereas the deceased's seatbelt was intact but jammed in the retracted position.
A photograph of the damaged vehicle has been tendered (Exhibit 6) but it is not clear from the evidence whether this represents the condition of the vehicle immediately following the accident. In this regard there is no evidence from any member of the ambulance or emergency services who were first on the scene to say whether or not the vehicle was cut open to retrieve the injured. Nor is there any direct evidence from either the defendant or the middle seat passenger as to whether or not the deceased was wearing his seatbelt at the material time.
I am nevertheless asked to draw an adverse inference against the deceased on this issue, based upon the facts that his seatbelt was found to be jammed in the retracted position, that the other two seatbelts had been cut, and that his body was found outside the vehicle.
In my view the state of the evidence does not allow me to come to such a conclusion, because there are other possible explanations for the facts as found. It is not known whether an ambulance or emergency services officer may have removed the deceased from the vehicle. It is also possible that if this did occur and the deceased's seatbelt had to be unclipped, that the latter became jammed in the retracted position as a result of the damage to the vehicle. Depending upon the position of the vehicle when it came to rest, it is entirely possible that the rescue workers were readily able to unclip the deceased's seatbelt but could not reach the buckles for the others, resulting in them being cut. A further possible inference is that the seatbelt was jammed before the accident and the deceased was thus unable to use it.
For all of these reasons I am unable to find that there was any negligence by the deceased which contributed to the damages claimed.
The relationship "in loco parentis"
The second and third plaintiffs can only claim damages if each was a "relative" within the meaning of the Act. The relevant category of "relative" as defined by schedule 2 to the Act is as follows:
"(e)Any person who stood in loco parentis to the deceased person immediately before his death."
In the present instance, the essential question is whether the deceased immediately prior to his death had assumed the role of parent to each of the two children. As to the evidence that is necessary to justify such a finding, the authorities are not entirely clear. The decisions in Bennet v Bennet (1879) 10 Ch D 474, 477 and McIntosh v Williams [1976] 2 NSWLR 237, 249 suggest that it may be enough to show that the deceased took on the duty of a father to provide for or support each child. However, in Nash v Commissioner for Railways (1962) 63 SR (NSW) 357, 362, it was held in relation to the equivalent New South Wales Act that:
"What the Act appears thus to embrace is a state of notional parenthood, of de facto incorporation into a family, irrespective of ties of blood, marriage or adoption, and regardless of legitimacy. It would accordingly not appear to be sufficient, to found a claim under the in loco parentis relationship, merely to show that the deceased, either in the role of 'father', or of 'child', provided, or might reasonably have been expected to provide, benefits or services measurable in money to another member of the family. It is necessary to show that the 'father' stood in the shoes of an actual father, and the 'child' in the shoes of an actual child, looking to the 'father' for care, protection, maintenance and upbringing, as the 'father' looked to him, perhaps, ultimately, for some support in his declining years. We are, in other words, not concerned, … merely to seek a person taking upon himself the duty of making financial provision for a child, and a child so provided for; what must be shown is a relationship of foster parent and foster child with all its incidents."
Accordingly, if the Act is to be construed in accordance with the dictum in Nash, potential claimants need to jump a higher hurdle than that set up by McIntosh by proving that there was a foster relationship "with all its incidents".
In this State the amendment (in 1985) which added the in loco parentis relationship to the categories of relatives able to claim was based upon recommendations contained in a report by the Law Reform Commission of Western Australia. A perusal of that report (Project No 66 paragraphs 3.14‑3.17) and of the Attorney General's Second Reading Speech in respect of the Amendment Bill (Hansard 24 March 1984 p 6463‑4) shows that the focus of the Bill was:
"… to extend the class of persons who may claim under the Act, by bringing in a number of people who were members of the deceased person's household or dependent upon him."
This suggests that the decision in Nash provides too narrow a basis on which to construe the Act. It follows in my view that on a proper construction of the Act it is enough to establish a loco parentis relationship if there is proof that the deceased took upon himself the duty of a parent to contribute to the financial support of a child.
Whether the deceased stood “in loco parentis” to the second and third
plaintiffs
In the present instance the evidence as to the nature of the relationship between the deceased and the second and third plaintiffs overlaps with the evidence as to the extent to which they were financially dependent upon him. That evidence comes from Ms O'Pray, Ms Tracey Turner (a close friend of Ms O'Pray with whom the deceased used to board), Mr K W Barwick (the third plaintiff's former boxing instructor), and from each of those plaintiffs themselves. There were no major inconsistencies in the various accounts, and all of these witnesses impressed me as being honest and credible. I accordingly make the following findings.
For approximately five years up until 1985 Ms O'Pray had an intimate relationship with the father of the second and third plaintiffs, Allen Fisher. Mr Fisher did not at any time live with Ms O'Pray, and at all material times he resided with his mother. When the twins were born he acknowledged his paternity but did not contribute in any way to their support.
Subsequently, Mr Fisher has had very little contact with the second and third plaintiffs. He lives in Bunbury, and has telephone contact with them perhaps two or three times per year. He has not contributed to their maintenance or provided them with any pocket money or the like. In this regard he even declined a specific request from the second plaintiff on one occasion for $10 to spend at the Royal Show.
Not long after her relationship with Mr Fisher came to an end, Ms O'Pray met the deceased. He was at that time the caretaker of a block of flats where her friend Ms Turner was living. In Ms O'Pray's words, she and the deceased soon "became a couple and saw each other exclusively and regularly".
However, the deceased and Ms O'Pray did not live together until she became pregnant with the first plaintiff in 1989. In the meantime he frequently visited her and her two children at her home in Hilton. In 1989 he moved into the house and remained there for approximately two years. During this period the couple and the three children lived together as a normal family.
By this time the deceased had developed a very close relationship with the second and third plaintiffs. They each called him "Dad" and he acted as a father towards them. In this regard he not only provided financial support to the family as a whole, but he provided the children with pocket money, took them on outings, and helped them with their homework.
By 1991 there was an issue between the deceased and Ms O'Pray as to his consumption of alcohol. Ms O'Pray considered alcohol to be "evil" and would not allow any to be kept in the house. Because of this disagreement the deceased moved out of the family home and into a caravan in the backyard of Ms O'Pray's mother's house a short distance away.
After the deceased had shifted out of Ms O'Pray's house, he continued to see her and the children on most days. Nearly all of his meals were eaten with them, and essentially the only change in his relationship with the family was that he slept overnight elsewhere. In this regard, he and Ms O'Pray continued to be "intimate a lot", and he also provided financial support, participated in activities with the children, provided them with pocket money, attend school events, and helped them with their homework.
The deceased also met the costs of the second and third plaintiffs attending a private school from Grade 5 onwards. These costs included fees (at a reduced rate), uniforms, and books. When the twins later left the private school and attended Hamilton Hill High School, the deceased continued to pay for their uniforms and books.
The costs of certain special activities engaged in by the second or third plaintiffs were also met by the deceased. These included boxing training over a number of years for the third plaintiff, and instruments and uniforms for the second plaintiff's pursuit of music and dancing.
Between 1991 and 1999 the deceased sometimes resided in the caravan at Ms O'Pray's mother's house, sometimes in shared accommodation with Ms Tracey Turner, and towards the end, sometimes on a boat owned by the defendant. All of these locations were in reasonably close proximity to where Ms O'Pray and her children were residing, and he continued to see them on most days. Shortly prior to his death the deceased shifted back into Ms O'Pray's house for approximately a month, but this arrangement came to an end when he became drunk at a function.
At the time of his death the second and third plaintiffs still referred to him as “Dad”, and they have also done so posthumously in their evidence.
The evidence generally satisfies me that immediately prior to his death he treated the second and third plaintiffs as if they were his own children. In the third plaintiff's words, the deceased "was like a father to me, he was like a mate sort of thing". Similarly the second plaintiff regarded the deceased as her father, and for example regularly provided him with a leather wallet on Father's Day. The deceased responded in a consistent fashion and referred to the second plaintiff as his "little princess". There was clearly a very affectionate relationship between the deceased and each of the second and third plaintiffs.
In my view the evidence clearly establishes that the second and third plaintiffs were persons to whom the deceased stood in loco parentis immediately before his death.
The evidence as to the dependency of each of the plaintiffs
During the course of the deceased’s relationship with Ms O’Pray, he worked intermittently in a number of semi‑skilled occupations, and mostly as a factory hand. In this regard I accept the accuracy of the “schedule of work history and earnings” which was tendered during counsels’ submissions.
I also accept the evidence of Ms O’Pray that in addition to the employment as detailed in the schedule, the deceased sometimes carried out welding work for truck drivers (usually introduced to him by his uncle) in respect of which he received cash payments.
For approximately the first six years of Ms O’Pray’s relationship with the deceased she did not work and was in receipt of social security benefits. However, in about 1995 she worked as a cook at the Stella Maris Seamen’s Centre, and not long afterwards commenced a small café business which lasted for approximately two years.
As I understand the evidence, Ms O’Pray has not worked since approximately 1998 and she has once again been in receipt of social security benefits. As at the date of the deceased’s death, Ms O’Pray was receiving a supporting parent’s benefit and child endowment totalling in excess of $470 per fortnight.
As I have already found, during most of the period of the deceased’s relationship with Ms O’Pray and her children, he provided financial support to the children individually and to the family as a whole. Individual payments were made in respect of pocket money (averaging $10‑$15 per week per child), school fees, uniforms and books, the third plaintiff’s boxing training and equipment, the second plaintiff’s music lessons, instruments and costumes, occasional clothing purchases for each child, and birthday and Christmas gifts (of the order of $50 to $100 per child on each occasion).
Payments made by the deceased which benefited the family as a whole included grocery bills (of $100 or more) paid by him most weeks when he accompanied Ms O’Pray shopping. The deceased was also usually with Ms O’Pray and paid for the costs when she filled up the petrol tank in her car. In addition the deceased met the costs of frequent excursions and outings for the family as a whole on weekends.
It should be noted that payments by the deceased which benefited the family as a whole also benefited himself. In this regard he ate most of his meals with the family, relied upon Ms O’Pray to be driven around (because he did not have a motor driver’s licence), and also participated in the weekend outings.
In addition to the above, the deceased was at all material times liable to make child support payments for the benefit of the first plaintiff pursuant to the Child Support (Assessment) Act 1989. The evidence is not entirely clear as to how this situation came about. According to Ms O’Pray there was initially a “private arrangement” for payment of $50 per week which was accepted by the child support agency. However, these arrangements were formalised after one or two years and thereafter the deceased was obliged to make the payments to the agency for disbursement to Ms O’Pray.
According to the child support documents tendered by consent (Exhibit 1), the deceased was in arrears (to the extent of $3,983) as at the date of his death. Ms O’Pray, however, is adamant that there were no arrears and that her former solicitor (Ms J Mugambwa) had investigated the matter and confirmed that there was a “mistake”.
It was also relevant to note that (as I understand the evidence) the quantum of the child support payments required of the deceased was calculated without regard to the fact that he was already making a financial contribution to the family including the first plaintiff. Accordingly, in the event of there having been no arrears, the deceased to some extent would have been doubling up on his payments for the benefit of the first plaintiff.
At the date of death the first plaintiff was attending Grade 6 at a private school and the fees were being paid by the deceased. As a consequence of the death the first plaintiff was taken out of the private school and since then has attended Government schools. He is now 14 years of age and the evidence does not allow me to determine when he is likely to cease his education or what his future employment prospects might be.
The second plaintiff ceased her schooling at the end of Year 11 approximately one year after the deceased’s death. For approximately one and a half years thereafter she had part‑time employment as a shop assistant. As at the date of trial she was not working and was seven months pregnant.
The third plaintiff completed his Year 10 schooling, and after being unemployed for eight or nine months then obtained work as a deckhand. Subsequently he was an apprentice chef until becoming an apprentice butcher approximately 18 months prior to trial. The third plaintiff appears to be well settled in his present employment.
The quantum of pecuniary loss
It is submitted on behalf of the second and third plaintiffs that the pecuniary loss that they each suffered as a result of the death of the deceased can be reasonably quantified at $40 per week. Ms O’Pray’s evidence was understandably imprecise as to the extent of the financial benefits which flowed from the deceased to each member of her family. However, in my view that evidence amply justifies the claim of $40 per week for each of the second and third plaintiffs as at the date of death.
I consider it to be a fair inference from the evidence that if the death had not occurred, the payments of pocket money would have ceased when each of the twins became employed. Accordingly, it would be fair to reduce the estimated pecuniary loss of each of the second and third plaintiffs during the periods when they have been employed to $25-$30 per week. I consider it reasonable to assume that this financial assistance would have continued until each of the plaintiffs left Ms O’Pray’s home, or until they turned 20 years of age (whichever would have been the sooner).
In all of the circumstances and given the imprecise nature of the evidence, I consider the assessment of damages to each of the second and third plaintiffs to be a matter of judgment rather than calculation. On this basis, and doing the best I can, I assess the past pecuniary loss of the second and third plaintiffs to be $7,500 and $6,500 respectively. I also calculate the interest on this past loss to be $770 and $785 respectively.
Based on the findings I have made, that pecuniary loss will continue for a little less than one year. I assess this future loss to be $2,000 for the second plaintiff and $1,250 for the third plaintiff. Accordingly the second plaintiff is entitled to a total award of $10,270, and the third plaintiff a total award of $8,535.
Turning now to the first plaintiff, the evidence does not satisfy me on the balance of probabilities that the deceased was up to date with his child support payments at the time of his demise. Nevertheless the first plaintiff had “an effective and valuable legal right” on which he was entitled to depend (see Potts v Niddrie & Benhar Coal Co Ltd (1913) AC 531, 537‑8 as approved in Aafjes v Kearney (1976) 8 ALR 455). In this regard, the fact that there may have been arrears would not imply any abandonment of the first plaintiff’s right to child support payments (Khan v Terry Shields Toyota Pty Ltd (1990) 6 NSW CCR 233).
Accordingly, it is reasonable to quantify the first plaintiff’s pecuniary loss as at the date of death at the rate of the child support payments, namely $85.55 per week. In my view it would not be reasonable to add to this sum any pecuniary loss in respect of the payments made directly to the family by the deceased. The deceased was under no legal obligation to make these payments, and it is likely that the same would have ceased and/or been adjusted if enforcement action had been taken in respect of the arrears of child support. It follows that the first plaintiff’s past pecuniary loss should be assessed at the rounded off figure of $18,000. I calculate interest on this past loss to be $2,160.
As to future loss, it is likely that the child support payments would have ceased altogether upon the first plaintiff becoming 18 years of age. It is also likely that they would have ceased or been reduced at an earlier time in the event of him leaving school and commencing employment. In my view it is reasonable to assume that the child support liability would have continued at the full rate for another two years, and that there would have been a continuing dependency at the rate of perhaps $25 per week for another four years.
On this basis, and after discounting in the usual manner, I assess the first plaintiff’s future pecuniary loss to be the sum of $12,864. It follows that the first plaintiff is entitled to an award in the total sum of $33,024.
For all of the above reasons there will be judgment for each of the plaintiffs in the following amounts:
-first plaintiff: the sum of $33,024
-second plaintiff: the sum of $10,270
-third plaintiff: the sum of $8,535
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