Graeme Daniel Medcraft v Brett Fitzpatrick No. 4203 Judgment No. SCGRG 93/937 Number of Pages 6 Damages General Principles

[1993] SASC 4203

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA MULLIGHAN(1), DUGGAN(2) AND BOLLEN(3) JJ

CWDS
Damages - general principles - Damages - Wrongs Act 1936, Part II - fatal accident - young woman aged 20 years killed in road accident - action by putative spouse for damages on behalf of himself and two young children aged 5 years and 4 years - spouse aged 23 years at trial - stable relationship - damages assessed at $129,558 including solatium and funeral expenses - loss of services of wife and mother allowed at $95,000 - loss of deceased's prospective financial contribution allowed at $30,000 - damages reduced by l5 per cent to reflect agreement as to apportionment - $30,000 apportioned to each child - appeal on ground that total award manifestly excessive and not justified by the evidence - no attempt on appeal to interfere with amounts apportioned to the children - extent of award for loss of services as a wife not justified by the evidence and manifestly excessive - appeal allowed and damages reduced to $103,558 before apportionment - amount of judgment reduced to $88,024. Fisher v Smithson (1978) 17 SASR 223; Tripodi v Leonello and Arnold (1982) 31 SASR 9; Nguyen and Ors v Nguyen (1990) 160 CLR 245; Nistico v Fanning and Anor (1990) 54 SASR 6 referred to and Wrongs Act 1936, Part II.

HRNG ADELAIDE, 14 September 1993 #DATE 29:9:1993
Counsel for appellant:     Mr S Walsh Qc
Solicitors for appellant:    Stratford and Co
Counsel for respondent:     Mr P J Humphries
Solicitors for respondent: Reilly, Downs
   and Humphries

ORDER
Award of damages varied.

JUDGE1 MULLIGHAN J The late Linda Ann Hutchins died from injuries sustained in a road accident on 11th January 1991. She was a passenger in a motor vehicle driven by the appellant. At the time of the accident she was aged 20 years and had two children Rebecca Hutchins, who was born on 17th July 1987, and Alicia Fitzpatrick, who was born on 18th September 1988. The respondent, the putative spouse of the deceased, brought an action against the appellant under Part II of the Wrongs Act 1936 on behalf of himself and the children claiming damages on his own and their behalf arising out of the death of the deceased and also for solatium and funeral expenses. The respondent and the deceased commenced living together in September 1987. He is the father of the child Alicia. He treated the child Rebecca as if she was his own daughter, although that is not the case. She was born to the deceased as a consequence of her earlier relationship with another man. The respondent had in mind to adopt this child which remains his intention. 2. The action came to trial in the District Court. The appellant alleged that the deceased had failed to take care of her own safety by failing to wear a seat belt and by being a passenger in the vehicle when she knew, or ought to have known, that the appellant's ability to drive a motor vehicle was impaired due to his consumption of alcohol. The appellant claimed that any damages awarded to the respondent or the children should be reduced for those reasons. When the action came to trial the parties had resolved that issue and had agreed that the damages should be reduced by 15 per cent. The learned Trial Judge proceeded to assess the damages. There were two witnesses, the respondent and Mrs. Hutchins, the mother of the deceased. The learned Trial Judge accepted their evidence and assessed damages in the sum of $129,558, made up as follows:- Loss of services of wife and mother $95,000 Loss of deceased's prospective contribution $30,000 Solatium $ 4,200 Funeral expenses $ 358 $129,558 In accordance with the agreement as to apportionment of liability, the learned Trial Judge entered judgment for the respondent in the sum of $110,124.30 and apportioned $30,000 for each child and the balance to the respondent. 3. The appellant appeals against the assessment of damages but does not seek to interfere with the amounts apportioned to the children. He contends that the total award is manifestly excessive, including the amount allowed for the deceased's prospective contribution, which he claims is not justified by the evidence, and that the learned Trial Judge had failed to make sufficient allowance for the possibility of remarriage by the respondent. Other grounds were included in the Notice of Appeal but were not argued. 4. The respondent and the deceased met in Western Australia and commenced to live together when they were both aged 17 years. They moved to Mt. Gambier at about that time. They were devoted to each other and to the children. Both of them had discussed their intention to live together and the proposed move to Mt. Gambier with their respective parents and received their approval which indicates that they regarded their relationship seriously and as likely to be permanent. The evidence discloses that they had both formed the intention to marry but had not made the necessary arrangements. It is likely that, but for the accident, they would have cohabitated for a long time. The deceased was a very good mother and housekeeper and devoted all of her time to the respondent and the children. At the time of her death the children were aged 3 years and 2 years respectively. At the time of the trial they were aged 5 years and 4 years. At that time the respondent was aged 23 years. 5. During their life together the respondent had very little employment. Apart from brief periods of time he received unemployment benefits. The deceased did not have work outside the home. Initially, she received a supporting parent's pension but, upon both of them attaining the age of 18 years, they received the one unemployment benefit paid at the rate applicable for a married couple. There was no evidence as to the amount of that benefit or as to the financial arrangements within the family, except that the deceased managed the family finances. She attended to all housekeeping tasks for the family, including the cooking, washing, ironing and cleaning. The respondent relied upon her to provide nearly all of the necessary domestic services. In view of the ages of her children, the deceased must have worked hard. She did some sewing for the children. She made toys and clothes for them. She made curtains for one room and she also painted a room. The respondent did little to assist her in the home but he attended to all of the outside chores. They rented a house, with three bedrooms, from the South Australian Housing Trust. Obviously, they were a young couple who were in the process of establishing themselves when the deceased was tragically killed. For the sake of completeness, I mention that the respondent and the deceased had a brief period of separation in 1990 but quickly resumed their relationship. 6. Since the death of the deceased, the respondent has continued to live in the house with the children. He cares for them and attends to their needs. He receives some assistance from Mrs. Hutchins at weekends but he bears the responsibility for their care. He attends to all housekeeping chores adequately but, according to Mrs. Hutchins, not to the same standard as the deceased. He has not yet obtained employment but intends to do so. He receives the appropriate pension. Before the death of the deceased, the respondent had only worked for brief periods since commencing to live with her. He has no plans to remarry and has not formed any relationship which could lead to marriage, but he acknowledges that he would marry again if the right person came along and also accepted the children. The child Rebecca started school in the middle of last year and the child Alicia will commence school shortly. The respondent intends to try and obtain work when both children are at school and at hours which will permit him to continue to care for them. 7. The learned Trial Judge did not express reasons for the amounts which he ascribed to each component of the award. He referred to various decisions of this Court and to other cases and no doubt applied the principles discussed in them. He accepted that the respondent had forgone opportunities for work since the death of the deceased by reason of his having to replace the lost services of the deceased. He accepted that there was the contingency that the respondent may remarry and acknowledged the difficulty in assessing damages for the loss of services provided by a devoted and competent mother. 8. As there is no challenge to the amounts apportioned to the children, it is appropriate to regard those awards as reasonable and appropriate in the circumstances. The focus, on this appeal, is whether the award to the respondent is manifestly excessive or has been assessed on an erroneous basis. 9. The task of the learned Trial Judge in assessing damages was all the more difficult because he had no evidence of the financial arrangements of the family as they existed before and after the death of the deceased or as to the monetary value of housekeeping services which is customarily led in cases of this nature and which can be a useful guide in assessing the value of the services lost. Even though such evidence can only be used in that way and is not essential to the making of an assessment for loss of services, Nguyen and Ors. v. Nguyen (1990) 169 CLR 245 per Dawson, Toohey and McHugh JJ at p 265, the lack of it, in the present case, complicated the task of the learned Judge. The learned Trial Judge had to make an award for the loss of the services which the deceased would, but for her death, have rendered to the respondent, Fisher v. Smithson (1978) 17 SASR 223, and the loss of pecuniary benefits which he would have received had she survived, Tripodi v. Leonello and Arnold (1982) 31 SASR 9. 10. I do not think there can be a successful challenge to the award for prospective financial contribution. Whilst the deceased had only been employed for brief periods at a young age, the evidence established that she worked hard in caring for her family and that she had sufficient for paid employment. Her devotion to her family would very likely have caused her to seek employment when both children were at school, which was her intention, and it is a reasonable possibility that she would have eventually been successful. Had she done so, it is likely that she would have been generous to the children and to her husband and that they would all have benefited financially from her in a significant way. Although the learned Trial Judge did not have any evidence as to the detail of the financial arrangements between the deceased and the respondent, as to the likely earnings of the deceased if she had survived and obtained employment or as to the monies which she could have had available to spend on her family, the evidence did establish that the respondent and the children had suffered a loss of this nature and there was sufficient evidence to permit the learned Trial Judge to make an award on the basis of a broad approach. I think the award of $30,000 was justified by the evidence, particularly in view of the stability of the relationship between the deceased and the respondent and the likelihood that it would endure for a long time. Consideration of the usual contingencies could not justify a lower award. This ground of appeal must fail. I now turn to the award for loss of services made in favour of the respondent. 11. Assuming that the amounts awarded to the children had also been discounted by 15 per cent to reflect the agreement as to apportionment of liability, my calculation is that the award to the respondent under this head of loss, excluding solatium and funeral expenses, was $56,000. No doubt the learned Trial Judge included in the awards to the children a significant component for the loss of prospective contribution which they would have received from the deceased in the future had she not been killed. It follows that some such component must also have been present in the award to the respondent. As I have said, had the deceased survived and obtained employment, it is very likely that she would have expended significant sums of her money for the direct benefit of the children. Consequently, the amount awarded to the respondent on that account could not have been much greater than the amounts included for that reason in the awards to the children. So, it may be accepted that in making the award of $56,000 to the respondent, the major proportion of it, perhaps as much as $45,000 or so, was an allowance for loss of services to him. It is well established that such services, including housekeeping services, have a pecuniary value which is capable of assessment and are compensable even though they were given gratuitously by the deceased and have been replaced, so far as is practicable, by the labour of the surviving spouse or a relative: Nguyen and Ors. v. Nguyen (supra) and Nistico v. Fanning (1990) 54 SASR 6. 12. It seems to me that the learned Trial Judge was obliged to determine what services the deceased had provided for the respondent and would have been likely to have continued to provide. He then had to, in effect, value those services and then have regard to appropriate contingencies. A very important contingency is that the respondent may marry. In view of his age and his attitude to marriage, there must be a heavy discount for the chance of marriage. There are other "unfavourable" contingencies, such as premature death of the respondent and the possibility that if the deceased had survived, her relationship with the respondent may have, at some future time, come to an end. 13. Even accepting that the deceased provided extensive and valuable services for the respondent and was likely to have done so for some time had she not been killed, it is difficult to see how there could be an award in favour of the respondent for loss of services in the order of about $45,000 or so which must have been the case. The evidence could not justify the conclusion that the extent and value of the services lost could be quantified to such an extent. Furthermore, the reduction justified by the relevant contingencies prevents such a high award. The evidence does not justify an award to the respondent in excess of about $20,000 for loss of services. The total award to the husband for such services and prospective financial loss, after allowing for contingencies, should not exceed $30,000. In my view, this ground of appeal succeeds and the damages should be reduced by $26,000 to $103,558. The amount of the judgment should be reduced to $88,024.

JUDGE2 DUGGAN J In my view the amount of the judgment in favour of the respondent should be reduced to $88,024. I agree with the reasons for this reduction which have been given by Mullighan J.

JUDGE3 BOLLEN J I regret that I cannot agree with the majority in this matter. 2. I think that we must remember that the deceased would, in all probability, have given her services as wife and mother for many years. She would have made some "contribution" for many years. Of course, "contingencies" must be considered but even so the loss to husband and children would probably have continued for a long time. 3. The husband and the deceased were each very young. They had not yet stabilised their "financial life". That made it more difficult than usual for the plaintiff to offer much in the way of amounts or figures to the Judge. The Judge was required to proceed by way of assessment, not calculation. 4. I do not think it possible to say of the award as an whole that it is manifestly excessive. Still less do I think that that can be said when one takes into account that there is no dispute about the apportionment of $30,000 to each child. That is to say, there is no dispute but that each child was entitled to that amount. 5. In all the circumstances I think that the learned Judge reached a figure which was generous but not manifestly excessive. 6. I would dismiss the appeal.