Hanlon v Hanlon
[2006] TASSC 1
•19 January 2006
[2006] TASSC 1
CITATION: Hanlon v Hanlon [2006] TASSC 1
PARTIES: HANLON, Colleen Margaret on her own behalf
and as Litigation Guardian of
HANLON, Joel Raymond
HANLON, Adam James
v
HANLON, Raymond Eric
BIRD, Kevin
BIRD, Heather
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 1075/2001
DELIVERED ON: 19 January 2006
DELIVERED AT: Hobart
HEARING DATE: 17 –19, 21, 24 – 27 October, 24, 25 November 2005
JUDGMENT OF: Underwood CJ
CATCHWORDS:
Torts – Negligence – Essentials of action for negligence – Standard of care – Particular persons and situations – Other cases – Boating accident – Driving at excessive speed.
Wyong Shire Council v Shirt (1979) 146 CLR 40, applied.
Aust Dig Torts [49]
Torts – Negligence – Apportionment of responsibility and damages – Generally – Damages for psychiatric harm on learning of death of husband and child – Alleged that deceased partly responsible for his own death – No reduction for contributory negligence – Wrongs Act has no application.
Wrongs Act 1954 (Tas), s4(1).
Lloyd v Lewis [1963] VR 277; Meadows v Maloney (1973) 4 SASR 567, referred to.
Aust Dig Torts [69]
Torts – Negligence – Fatal Accidents Act legislation – Damages – Measure of damages – Particular heads of damages and factors in assessment – Benefit from deceased husband or father – Measurement of the expectation of the financial benefit – Factors taken into account.
Fatal Accidents Act1934 (Tas), s5.
Public Trustee v Zoanetti (1945) 70 CLR 266; Davies v Powell Duffryn Associated Collieries Limited [1942] AC 601, applied.
Aust Dig Torts [142]
Torts – Negligence – Fatal Accidents Act legislation – Damages – Measure of damages – Generally - Gratuitous services – Discount factor 3%.
Common Law (Miscellaneous Actions) Act 1986 (Tas), s4.
Todorovic v Waller (1981) 150 CLR 402; Nguyen v Nguyen (1990) 169 CLR 245, applied.
Targett & Anor v Targett (1999) 9 Tas R 234, followed.
Aust Dig Torts [140]
REPRESENTATION:
Counsel:
Plaintiff: R J Phillips and S Taglieri
First Defendant: D J Gunson SC and A R McKee
Second and Third Defendants: C A Cunningham
Solicitors:
Plaintiff: Phillips Taglieri
First Defendant: Gunson Williams
Second and Third Defendants Simmons Wolfhagen
Judgment Number: [2006] TASSC 1
Number of paragraphs: 150
Serial No 1/2006
File No 1075/2001
COLLEEN MARGARET HANLON on her own behalf and as
Litigation Guardian of JOEL RAYMOND HANLON
and ADAM JAMES HANLON
v RAYMOND HANLON, KEVIN BIRD and HEATHER BIRD
REASONS FOR JUDGMENT UNDERWOOD CJ
19 January 2006
Introduction
These proceedings arise out of a family boating tragedy on Arthurs Lake in Central Tasmania on 29 August 1999. The plaintiff, Colleen Hanlon, brings these proceedings:
· to recover damages for loss and injury caused by reason of psychiatric harm she sustained; and
· pursuant to the provisions of the Fatal Accidents Act 1934, for the benefit of herself and her two children, Joel and Adam.
The plaintiff is the widow of the first defendant's son, Craig Hanlon. On the morning of Sunday, 29 August 1999, the first defendant, his son Craig and two of the latter's young children, Sam and Joel, went fishing on Arthurs Lake in the first defendant's boat. About lunch time the boating party decided to return to shore. The first defendant was driving the boat and made a sharp turn to starboard. The boat tipped violently to the port side. All the occupants, except Joel, were thrown out of the boat. The first defendant was rescued from the water by two fishermen who heard his cries for help. Craig Hanlon, the plaintiff's husband, and their son Sam, drowned.
The plaintiff's case is that the death of her husband and son was caused by the negligent driving of the first defendant. She claims that she and her two surviving children were dependants of the deceased, and additionally, the first defendant's negligence caused her to suffer psychiatric injury.
The plaintiff joined Kevin and Heather Bird as second and third defendants in this action. Mr Bird manufactured the first defendant's boat. The statement of claim alleges that both the second and third defendants manufactured the boat. By their defences it is admitted that Mr Bird manufactured the boat, but denied that Mrs Bird did so. So far as I can ascertain, there is no evidence that Mrs Bird had anything to do with the manufacture of the boat, but this issue is immaterial as the plaintiff's claim that the second and third defendants were negligent, and that their negligence caused the death of her husband and one of her children fails. There is no evidence to sustain it. In his closing address, Mr Phillips, senior counsel for the plaintiff, conceded this by making no submissions to support the plaintiff's claim against the second and third defendants. Accordingly, I shall hereafter simply refer to the first defendant as "the defendant".
The family
At the time of the boating accident, the plaintiff was aged 36. She was born in a South Australian country town not far from Murray Bridge. Her father worked as a guard on the South Australian Railways and her mother was occupied by home duties. She has two brothers and two sisters. She left school during, or at the end of, the first term of year 12 and did a three week course at a secretarial school. However, she did not do secretarial work. Before long she travelled to Townsville and worked in a pizza shop. After 12 months in Townsville, she returned home and worked as the maitre d'hotel at the Murray Bridge Community Club. She enjoyed this work and stayed with the club for three years. The plaintiff then returned to Townsville, obtained work as a bar manager and met her husband who was then a private in the Army. The deceased left the Army and in June 1988, returned to his home town, Hobart. He turned 21 on 14 October in that year.
The plaintiff and the deceased kept in touch with one another. She left Townsville to attend the deceased's 21st birthday party in Hobart. Her intention was to return to her home town in South Australia after the party but, as events turned out, she stayed in Hobart with the deceased, who was then living with the defendant and his wife. The deceased had a job at the "Zinc Works", Risdon. The plaintiff and the deceased stayed with the latter's parents for about six months and then moved into their own rented accommodation where they lived as man and wife. The plaintiff gained employment in a Hobart restaurant, and what was to become the family home at 5 Malabar Road, Claremont, was purchased.
The plaintiff's first child, Sam, was born on 24 May 1990. Accordingly, he was 9 at the time of his death at Arthurs Lake. In her evidence, which I generally accept, the plaintiff said that at the time of Sam's birth, she and the deceased agreed that she would stop work to raise their family. Thereafter, the only paid employment engaged in by the plaintiff prior to the death of her husband was occasional home selling of Tupperware products and Le Rev cosmetics.
On 7 November 1992, the plaintiff and the deceased married in a Catholic Church in her home town. Their second son, Joel, was born on 23 December 1993 and the third child, Adam, was born on 1 March 1998. Joel, who was the only member of the fatal boating party not thrown out of the boat, was aged 5, and Adam was only 18 months old at the time of the death of their father and brother.
The deceased remained an employee at the Zinc Works, Risdon, from the time he returned to Hobart in 1988 until his death in 1999. By way of recreation, he enjoyed and spent a considerable amount of his spare time hunting and fishing. He maintained the family home. He was close to the defendant, who shared common recreational interests with him. The plaintiff managed the home and the children. The Hanlon family could have been described as a typical working class Australian family.
The defendant's boat
The defendant, who is employed as an electrician by Aurora Energy, was aged about 53 at the time of the deaths of his son and grandson. His first boat was a 12 foot Savage aluminium dinghy with a 15 horsepower outboard engine. He bought that boat about nine years before the accident. He took it out fishing on Fortescue Bay and on various lakes in the State's highlands. He has been a recreational fisherman for most of his adult life.
In 1993 the defendant decided to get a bigger boat. After talking to a friend who had bought a boat from the third defendant, the defendant went to see Mr Bird at his place of business at Murdunna. The defendant asked Mr Bird to build him a 15 foot aluminium dinghy like the one Mr Bird had built for the defendant's friend. Mr Bird did as he was asked, and the defendant bought the boat and trailer to fit it.
The unchallenged evidence of Mr Bird was that he is a qualified boilermaker and welder. He said that in 1980 he bought a small business that was making aluminium boats at Murdunna. With the business, Mr Bird bought plans, presses, jigs and all the equipment necessary to make the boats. All the boats built by Mr Bird were built with the same jig, but they were not all the same length. However, the method of construction was basically the same for every boat. The hull was built out of sheets of aluminium that were welded together. It was built in two parts. One part comprised the curved bottom of the hull and the other, the sides. The two parts were joined together by welding the top edge of the curved hull and the bottom edge of the sides to a strip of aluminium called a chine. In about 1987, Mr Bird altered the chine that he and his predecessor had used to join the top and the bottom of the boat together by using strips of stock aluminium that had grooves cut into them. The edges of the welded sheets of aluminium were slipped into these grooves making it easier to weld them into place. The chine, with grooves cut into it, was a little wider than its predecessor which had no grooves cut into it. Viewed from the outside, the chine on Mr Bird's aluminium boats protruded out from the sides of the boat like an aluminium shelf, in the case of the defendant's boat, about five centimetres wide, running from the bow to the stern. As well as enabling the bottom and the sides of the boat to be welded into a single piece, the chine served as a spray deflector when the boat was being driven at speed.
To the stern of the defendant's boat, Mr Bird welded a bracket or "pod" on which the outboard engine or engines could be mounted. This addition, aft of the stern, maximised the amount of space available to those inside the boat.
The defendant consulted Eastern Shore Marine at Mornington with respect to the kind of engine he should put on his new boat. Mr Bush of Eastern Shore Marine gave evidence that his company was, and is, the holder of a Yamaha outboard engine franchise. As a result of the consultation with Mr Bush, and perhaps also with the encouragement of Mr Bird, the defendant bought and fitted a used 50 horsepower Yamaha outboard engine to his boat as its primary source of power. The defendant said the boat performed satisfactorily, except that sometimes when loaded with people and/or heavy gear, it was not always easy to get it to plane across the water.
The defendant decided to get a more powerful engine. In early February 1999, he bought a new 70 horsepower Yamaha engine and fitted it to his boat. The defendant made fairly widespread enquiries of those who sold engines for boats before he made his purchase. He was questioned at some length about whether he sought advice from those to whom he made his enquiries with respect to the suitability of fitting a 70 horsepower engine to a boat the size of his. The defendant said that he did not seek such advice, but he did disclose the size of his boat to at least some of those to whom he spoke. He said that no one suggested to him that a 70 horsepower engine was too powerful for his boat. I accept that evidence. In his evidence-in-chief, Mr Bush said that he told the defendant that a 70 horsepower engine would be too powerful for his boat, and had he tried to buy such an engine from him, Mr Bush said that he would have tried to talk him out of it. I do not accept that evidence. In cross-examination Mr Bush admitted that he could not actually remember giving the defendant the claimed advice, but asserted that it is the advice he would have given him. At all events, as will be seen, whether the defendant was advised that a 70 horsepower engine was too powerful for his boat is immaterial to the issue of whether the defendant was in breach of the duty of care he owed the deceased at the time of the boating accident.
At the same time as the defendant bought the new 70 horsepower Yamaha outboard engine, he bought a new 8 horsepower auxiliary Yamaha outboard.
In his evidence-in-chief, the defendant said that between the date he bought the new engines and the accident, he had used them in salt water at Marion and Fortescue Bays and about a dozen times on Lake Echo and about the same number of times on Arthurs Lake. However, that evidence was contradicted by the defendant's cross-examination and at odds with other evidence to which I shall refer shortly. I hasten to add that I do not suggest that the defendant did anything other than his best to give his evidence as accurately and truthfully as he could. It was clear that he found the retelling of the tragic deaths and the events leading up to them emotionally distressing.
The events leading up to the accident
Arthurs Lake is man-made. It was made by the Hydro Electric Commission as part of its electricity generating network. There are many areas of the lake in which stand dead gum trees. Totally submerged logs lying just below the surface are not uncommon. Rocks are a hazard and the water temperature is very low. The weather at Arthurs Lake can change quickly and the surface become rough.
In about April 1999, the defendant bought a shack at Arthurs Lake. The intention was to make the shack the regular holiday place for the defendant and his family. The defendant moved into the shack over the Easter holiday period in 1999. He and others spent that time clearing up and moving into the shack. In that year, the fishing season on Arthurs Lake closed on the Sunday closest to the end of April 1999, very shortly after the defendant bought his new motors. The defendant agreed with Mr Phillips that there is no point fishing in Arthurs Lake towards the end of the season as the fish are then of very poor quality.
In these circumstances, it is unlikely that the defendant used his new engines on Arthurs Lake between the time he bought them and the re-opening of the season on the Sunday closest to 1 August 1999, very shortly before the accident. The defendant agreed that he did not go onto the lake on the day the 1999 fishing season opened, approximately four weeks before the accident.
The defendant was unable to remember whether he had used his boat in the intervening two weekends before the accident. However, he was able to remember, and I so find, that he and members of the family went out in the boat on the day before the accident, 28 August 1999. On that day the boat was used for trolling for fish for about four hours. The defendant explained that normally he used the 70 horsepower engine to get to and from the fishing spots and the 8 horsepower engine for trolling.
The defendant agreed that at the time of the accident neither of his engines had been used for 10 hours, that being the due time for the first service, a service that the defendant said he would not have missed. The defendant said that his wife kept a shack diary, but did not know if she recorded every fishing trip in it. During the course of pre-trial discussions about discovery of this diary, the defendant's solicitors wrote to the plaintiff's solicitors and advised that "the first trip in the boat for the season was the day before the fatal accident".
The totality of all this evidence leads inescapably to a finding that I make, that the defendant's experience of handling the boat with a 70 horsepower engine was limited to less than 10 hours, and the preceding day was the only time before the accident that the engine had been used on Arthurs Lake.
The accident
Not surprisingly, Joel did not give evidence. The rescuers did not see the events that led to three people being thrown out of the defendant's boat, so the only eye witness to the accident was the defendant.
The defendant said that he, his son and his two grandsons, launched his boat from the ramp close to the Arthurs Lake dam wall. They then travelled north past Snake Point into the area of Tea Tree Bay where they started trolling. There were enough life jackets in the boat for everyone on board. However, none of them was suitable for a child. Suitable or not, the evidence is clear that no one in the boat wore a lifejacket. The defendant said that people in his boat normally did not wear a lifejacket.
The party moved to various fishing spots on the lake and trolled for fish until about noon, when it was decided to head back to the launching ramp near the dam wall. At that time, the weather was fine with a light northerly wind blowing. There was a chop on the surface of the lake which the defendant estimated to be about 12 inches high. The defendant's evidence in this respect was corroborated by Mr Schofield, one of the rescuers who was a former part-time member of the New South Wales Police Rescue Squad.
In order to get back to the launching ramp, the defendant drove the boat east across the lake towards Brazendale Island. He knew that if he followed this path, a particular clump of dead trees would come into view, and that if he turned right at that point and headed south, he would arrive back at the launching ramp.
The defendant was standing behind the steering wheel and in front of the driver's seat. Joel was sitting in the port side passenger seat. The deceased was standing behind him and Sam was sitting in the small seat at the rear port side of the boat. The engine controls were in front of the defendant. They were fitted with an emergency stop switch to which was fitted a lanyard. If the lanyard was jerked, the switch pulled out and the engine stopped instantly. It was a safety device. One end of the lanyard was fitted with a clip so the driver could clip it to his body or clothing. In the event of the driver leaving the controls with the lanyard attached to his or her person, the engine would stop immediately. The defendant did not have the lanyard attached to him or his clothing.
The defendant said that he drove the boat "flat out" across the water towards Brazendale Island. He said that he did not know what his speed was and did not look at the speedometer to check it, but he estimated it to have been in the vicinity of 40 kilometres per hour. I find this to be a gross under-estimation of the speed. Mr Peter Fisher, an experienced boat builder, gave evidence that after the accident the defendant consulted him to try and ascertain what had happened to cause three occupants of his boat to be tipped into the water. Mr Fisher and his apprentice took the boat onto the Derwent and tested it. He found the boat's top speed to be in the order of 45 miles per hour or approximately 83 kilometres per hour. Mr Fisher was a precise and careful witness and I accept his evidence with respect to the boat's top speed on the occasion he and his apprentice were in it.
With respect to the morning of the accident, it is not possible to make a precise finding of the boat's speed as it headed across the lake towards Brazendale Island, but the defendant said, and I accept, that the throttle on the boat was as far forward as it would go and the boat must have been travelling in excess of 60 kilometres per hour across the surface of the lake.
When the clump of trees came into view, the defendant called out to the others in the boat to "hang on" and without slackening the speed, turned the wheel hard to starboard. Without knowing how it happened, the defendant was thrown out of the port side of the boat. The deceased and Sam were thrown into the water too, I infer, also over the port side.
When the defendant surfaced, he saw the boat with Joel in it, still going quite fast, but when it was about 70 metres away from him, it stopped. The defendant could see Sam in the water about 20 metres away from him, but there was no sign of the deceased. The defendant called out to Joel, to start the motor but to no avail. The defendant tried to swim to the boat but his waterlogged clothes made this impossible. The water was bitterly cold. The defendant started to scream for help. He told Sam to be brave and to keep treading water.
Mr Schofield and his two companions were in a boat on the other side of Brazendale Island. They heard the sound of a freely revving motor as if the propeller was not properly in the water. This noise lasted for about three seconds, settled and then there was a loud noise, followed by silence.
The defendant's cries for help were heard and Mr Schofield and his companions went looking for him. They found the boat with Joel in it. Joel pointed to the defendant and the rescuers went over and pulled him out of the water. By this time the defendant was very close to death. When he was pulled into the boat, the defendant said, "Why did I do that?" He told his rescuers that his son and grandson were in the water. The rescuers immediately radioed for help and went looking for the other two, but without success. They tried to keep the defendant warm whilst looking for his son and grandson. After a short while, the rescuers decided they had to get the defendant to shore for medical attention, so they picked up Joel and made a landfall.
The body of Sam Hanlon was not found until 3 October 1999, and the deceased's body was not found until 14 October that year.
The cause of the accident
A tremendous amount of trial time and energy was expended upon ascertaining the precise cause of the accident.
Captain John Lewis is a marine surveyor. He was appointed an investigator pursuant to the Marine and Safety (Courts of Inquiry and Survey) Regulations 1997. On 6 September 1999, Captain Lewis witnessed the police test drive the boat on the River Derwent. The test was conducted at the direction of Inspector Stephen Williams, who is the head of the Police Search and Rescue Squad, and a person who has a great deal of experience with boats. There were three police officers in the defendant's boat, one in the driver's seat, one in the passenger seat and one in the aft port side seat.
The boat was driven at speed. It was made to do sharp turns, tight circles and figures of eight. As the boat was being driven into a sharp starboard turn, it flipped onto its port side and the police officer in the rear of the boat was tipped out. This was witnessed by Captain Lewis and Inspector Williams.
It seemed to me that the testing lacked any scientific precision. Nobody noted the various speeds at which the boat was being driven. There were no specific predetermined tests carried out and someone forgot to bring along the video camera, or the camera they had did not work properly.
The police officer in the passenger seat of the boat estimated its speed to have been in the order of 45 kilometres per hour at the time the officer was tipped out. However, I have no confidence in the accuracy of his estimation. He said that the boat might have then hit a wave that it had created by being driven about. This officer estimated that in his opinion, the boat's top speed on that day was between 55 and 65 kilometres per hour. Why it was not possible to note the speeds from the instruments is a mystery.
Inspector Williams told the Court that about 15 years earlier he had been standing on the beach at South Arm watching a plywood runabout "operating" in the waters off South Arm. He noted that the chines on the boat were extended and that the boat had a very "small keel". How he was able to observe the latter whilst standing on the beach was not explained. He described this boat as being about 14 feet long with an outboard motor on the back. He did not know the horsepower of this motor. He told the Court that a wind blew up a slight chop on the water and he noticed that every now and again, when the boat turned, the chines dug into the water and the boat lurched to the side opposite to the turn. Inspector Williams said that he took his eyes off the boat for about ten minutes, "and a little boy came back in and said 'the driver had fallen out'."
Based upon these observations 15 years ago, Inspector Williams felt confident in opining that exactly the same thing happened to the defendant's boat when the police officer was thrown out of it whilst it was being tested. I find this an unsubstantial basis for this opinion.
Captain Lewis also expressed the opinion that the boat's chines dug into the water and tipped it in the direction opposite to the turn. He said that he based this opinion on the observations of the testing conducted by the police officers, evidence of which he gave in far greater detail than that given by Inspector Williams.
I interpolate at this stage to observe that as I understand the defendant's case, extensive attention was paid to the precise cause of the boat tipping the defendant, the deceased and his son into the water in order to support an argument that this was a wholly unexpected event, not reasonably foreseeable by the defendant or a person situated as was the defendant. As will be seen shortly, I have reached the clear conclusion that this argument is not supported by the evidence, nor the law, but before turning to that, I shall briefly refer to the other evidence that was directed to the precise cause of the accident, as it occupied a considerable amount of trial time.
As mentioned earlier, the defendant consulted Mr Fisher to see if the boat could be modified to ensure that the mishap did not occur again. Understandably, the defendant wanted to get rid of his boat, but did not want its sale to put anyone's life at risk. Mr Fisher test drove the boat on the River Derwent several times. On the first occasion he carefully conducted a series of tests. He said:
"We found that we could run the vessel up to approximately forty miles per hour [74 kph] with quite normal operating. It would turn in all directions. You'd get it to do sharp turns, any turn you like, and it wouldn't falter. Once we went over – around – approximately forty mile an hour and plus, if you pulled it into an extremely tight turn it would chine walk."
Mr Fisher explained the boat began to make the sharp turn normally, leaning over into the direction of the turn and then it "let go" and violently flicked over to heel in the opposite direction. He said that the movement was from about 30 degrees heel to one side, to about 30 degrees heel to the other side. Mr Fisher said, at the same time, the stern of the boat was twisting and moving sideways or "fishtailing".
In an effort to stop the boat flicking from one chine to another chine or "chine walking", Mr Fisher shaved the width of the chine back from about 5 centimetres to 2 centimetres over its length from the curve at the bow all the way back to the boat's transom. However, the boat continued to "chine walk" but at a slightly slower speed.
Mr Fisher considered the problem for some time and thought that the cause might well have been the keel leaving the water due to the sharpness of the turn. He considered this might have caused the boat to slide across the water. The keel might then have dropped back into the water, "grabbed" and caused it to tip over to the opposite chine. Accordingly, Mr Fisher shaved 25 to 30 millimetres off the bottom of the 60 millimetre deep keel. At about the same time Mr Fisher filled in the underside of the engine bracket or pod. The evidence was uncertain as to whether this was done before the keel was shaved or at the same time, but at all events, when asked how the boat handled after modification of the keel, Mr Fisher said:
"It handled more like a – I would say, a speedboat where we could turn it at maximum speed in calm water and because it never had the keel on it, it then would gentle slip sideways with no gripping effect and no chine walk. That was in calm water. I would not have liked to do that at 45 miles per hour in rough water. It would have been too dangerous."
At the conclusion of his evidence-in-chief, Mr Fisher said with respect to his experience of driving boats fast:
"Basically when I've got boats into a chine walking situation it comes back to driving it too fast in the wrong conditions."
In cross-examination Mr Fisher said that chine walking was not a common experience but every boat has "a limit" and if "you push it faster you will experience [chine walk]". He added that as an experienced driver, he could feel when a chine walk was about to happen and would drop the boat's speed back. So far as the second and third defendants are concerned, Mr Fisher could find no fault with the design or manufacture of the boat.
There was cross-examination about whether the boat was overpowered. Mr Fisher did not consider the 70 horsepower engine too much power for the defendant's boat, but added the opinion that "it was at the upper limit".
This cross-examination about whether the boat was overpowered ignores the critical fact that the amount of power that is applied to a boat in any given set of conditions depends entirely on the driver.
Mr Michael Seward is a naval architect and gave evidence about the various forces that operate on boats when driven at different speeds and in different conditions. The evidence was interesting but not a great deal of assistance in resolving the key issue of liability. Mr Seward said that in addition to its structural function, the keel of a boat is designed to give it directionable stability. In this context, Mr Seward said:
"The keel, as I said, it helps - gives the vessel some directional stability but I guess it's like any vehicle, you could use the analogy of a motor vehicle, turning any vehicle is of itself more risky than driving in a straight line. There are a whole set of dynamic – hydrodynamic things that force a setup. And, you know, when you're coming to turn basically you should slow down, whether you're in a boat or an aircraft or a train or a truck."
With reference to the modification made to the defendant's boat by Mr Fisher, Mr Seward agreed that it "chine walked" simply because it was driven too quickly into a sharp turn.
Mr Seward expressed no opinion critical of the design or manufacture of the defendant's boat.
In his evidence-in-chief, the defendant said that he had experienced no difficulties with the boat prior to the accident, that he had previously executed "a sharp right-hand turn in the vessel such as that which [he] did on the day of the accident" and he had not experienced anything like what happened on the day of the accident. A careful reading of the evidence-in-chief in which this passage appears indicates that the defendant's senior counsel, Mr Gunson SC, intended to focus the witness's attention on his driving of the boat after it had been fitted with the 70 horsepower engine, but the critical questions were ambiguous in this respect and the defendant may well have understood them to have been referring to his handling of the boat at any time after he bought it in 1993. The position became clear in cross-examination when the defendant said that he had never executed "a sharp right-hand turn with the new 70 horsepower motor" prior to the accident. He said that he understood earlier questioning about this issue to have been referring to sharp right hand turns before the accident with either the 70 horsepower or the 50 horsepower engine on the back.
This then is the position of the first defendant immediately before the accident:
(a)he was driving his boat powered by a new engine, one that was 40 per cent more powerful than his previous engine;
(b)he had had less than 10 hours' experience driving his boat with the more powerful engine;
(c)he drove the boat as fast as he could get the engine to push it without looking at the instruments to ascertain his speed;
(d)the speed was in excess of 60 kilometres per hour;
(e)the water he was crossing was very cold and possibly contained large logs floating just below the surface;
(f)he was not attached to the engine emergency stop lanyard;
(g)neither he nor his passengers were wearing life jackets;
(h)without slackening his speed, the defendant executed a very sharp turn to starboard, a manoeuvre that he had not previously made with the 70 horsepower engine;
(i)the defendant did not know what the boat would do when turned hard at top speed, but he did know that the turn was likely to cause some disturbance to his passengers, for he directed them to hold on just before he executed it.
I find that the speed and degree of the turn to starboard caused the keel to lift out of the water and after the boat had slid sideways for some unspecified distance, drop back in again. This, in turn, caused the boat to tip very violently to port and consequently eject all the occupants except Joel.
Was there a breach of the defendant's duty of care?
I direct myself in accordance with the following passage from Wyong Shire Council v Shirt (1979) 146 CLR 40 at 47 – 48:
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."
The foregoing passage remains the law with respect to the standard of care to be observed. See Vairy v Wyong Shire Council [2005] HCA 62.
No one suggested that the relationship between the defendant and the deceased did not give rise to a duty of care, just as a car driver owes his passengers a duty of care. The duty was not to engage in conduct that might expose the passengers to the risk of harm.
Mr Gunson submitted that "the reasonable person would not have foreseen the turn at top speed might cause the boat to chine walk, nor that any person would have been likely to have been injured by making a sharp turn at speed". When considering the standard of care to which the defendant was obliged to conform, foresight that the boat might "chine walk" is not the question. The first question is whether the reasonable person, situated as was the defendant, would have foreseen that the conduct listed in pars(a) – (i) above involved a risk of injury to his passengers. Obviously, that conduct did involve a risk – one that was neither far-fetched nor fanciful. The next question is what would the reasonable man have done in response to that risk given the matters set out in the quoted passage from the judgment of Mason J? The probability of the occurrence of injury was high. Given the remoteness of the lake and the temperature of the water, the magnitude of the risk was very high indeed. The risk could have been easily avoided by doing no more than slowing down to execute a sharp turn to starboard or by making a gradual sweeping turn in that direction.
I find that the defendant was in breach of his duty of care owed to the deceased and the plaintiff is entitled to recover damages.
As there was no evidence that the second and third defendants were in breach of any duty that they might have owed the plaintiff, there will be judgment for the second and third defendants against the plaintiff. Notices of contribution were exchanged between the first defendant and the second and third defendants. Both will be dismissed.
Contributory negligence
By par19 of his defence, the defendant alleged that the deceased's death "was caused by, or alternatively contributed to, by the negligence of the deceased". The particulars plead a failure to wear a life jacket, a failure to be seated and a failure to hold on to the boat. Mr Phillips submitted that, as a matter of law, this plea has no application to the plaintiff's claim for damages for psychiatric harm.
The common law treated contributory negligence as a complete defence provided it was a cause of the damage suffered. The harshness of this rule was ameliorated by the introduction of the so-called "doctrine of last opportunity". See Davies v Mann (1842) 10 M & W 546: 152 ER 588.
It soon became apparent that the doctrine of last opportunity was just as unsatisfactory as the contributory negligence defence it sought to ameliorate. The doctrine became encumbered with refinements and analyses. Constructive last opportunity appeared as did "unconscious last opportunity". These developments are traced in the judgment of the court in Alford v Magee (1952) 85 CLR 437. At 464, the court put the brakes on these refinements to the last opportunity doctrine, confirmed the common law rule that if the accident was caused "partly by negligence on the part of the defendant and partly by negligence on the part of the plaintiff [the jury's] verdict should be for the defendant". However, their Honours accepted that there may be cases in which the original last opportunity doctrine might still arise, but that they would be rare.
This unsatisfactory state of affairs led to statutory reform, in this State, by the enactment of the Tortfeasors and Contributory Negligence Act 1954, now called the Wrongs Act 1954.
Accordingly, the defence, par19, seeks to rely upon a statutory provision which abolished the common law defence of contributory negligence and which is enacted in the Wrongs Act, s4(1), in these terms:
"(1) Where a person suffers damage as the result partly of that person's wrongful act and partly of the wrongful act of any other person, a claim in respect of that damage is not defeated by reason of the wrongful act of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent [up to 100%] as the court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage; but ¾
(a)…
(b)…".
[The words in square brackets are not relevant to these proceedings as they were added by Act No 41 of 2003.]
Relevant to these proceedings, the Wrongs Act, s2, defines wrongful act to mean:
"… an act or omission on the part of a person suffering damage that causes or contributes to the damage and that constitutes a failure on the part of that person to take reasonable care for the protection of his or her person or property."
The Wrongs Act, s4(4), extended the provisions of s4(1) to include claims made pursuant to the Fatal Accidents Act 1934 by enacting:
"(4) here a person dies as a result partly of that person's wrongful act and partly of the wrongful act of any other person, and accordingly if an action were brought for the benefit of the estate under the Administration and Probate Act 1935 the damages recoverable would be reduced under subsection (1) f this section, any damages recoverable in an action brought for the benefit of the dependants of the person under the Fatal Accidents Act 1934 shall be reduced to a proportionate extent."
Accordingly, if the deceased's death was caused partly by his wrongful act (as defined) the plaintiff's claim pursuant to the Fatal Accidents Act will be subject to reduction as provided by the Wrongs Act, s4(1). However, Mr Phillips submitted that with respect to the plaintiff's claim for damages for psychiatric harm, the provisions of s4(1) have no application because she did not suffer harm partly as a result of her wrongful act.
It seems to me that as a matter of statutory construction this submission is correct. The apportionment of liability provisions of the Wrongs Act (apart from the extension created by s4(4)) do not contemplate that a person might recover damages for psychiatric harm suffered by reason of the acts or omissions of the others in which he or she had no involvement. This is perhaps not surprising as the concept of recovery of damages for "nervous shock", as it used to be known, was in its infancy at the time the apportionment legislation was introduced. See Chester v Waverley Corporation (1939) 62 CLR 1; Hay or Bourhill v Young [1943] AC 92; Storm v Geeves [1965] Tas SR 252.
To support his argument, Mr Phillips relied upon Lloyd v Lewis [1963] VR 277. In this case it was held that as a parent of a child injured by the tortious conduct of another had the right to sue the tortfeasor to recover the costs of the child's hospital treatment and like expenses, that claim was not subject to reduction by reason of the child's contributory negligence. Pape J analysed the basis of the parent's action and held that it was independent of the action brought on behalf of the child to recover damages for loss, injury and damage that she had suffered. He said, at 282:
"Once it is established that the parent's action is an independent action, it seems to me to follow on principle that where there is a finding of contributory negligence against the child, the verdict for the parent ought not to be correspondingly reduced. Section 26 of the Wrongs Act 1958 deals with the case where a person suffers damage as the result partly of his own fault and partly of the fault of another person, and I can see no basis on which it can be said that the father has in any way suffered damage 'partly [by reason] of his own fault'."
Nettlefold J referred with approval to Lloyd v Lewis in Tracy Hennessy v Lancaster B8/1985 with respect to Pape J's conclusion that the parent's action was independent of the child's action "and therefore unaffected by the child's contributory negligence" (at 3).
In Meadows v Maloney (1973) 4 SASR 567, the plaintiff brought a claim for damages for loss of the society and services of his wife who was injured by the tort of the defendant. The wife was held to be partly responsible for her injuries and the husband's claim was reduced accordingly, notwithstanding that his cause of action was separate from that of his wife. However, the provisions of the Wrongs Act 1936 – 1959 (SA), s27(a), were materially different from the Wrongs Act (Tas), s4(1), in that the former provided:
"Where ¾
(a) a person (in this subsection called 'the injured person') suffers damage as a result partly of his own fault and partly of the fault of any other person or persons; and
(b) by reason of the damage to the injured person a third person suffers damage (whether by way of loss of the society or services of the injured person or otherwise),
then, in any claim by the third party for the damage so suffered by him the fault of the injured person shall be taken into account under subsection (3) of this section for the purpose of reducing the damages recoverable by the third party as if the said fault were the fault of the third party."
See also Hasaganic v Minister of Education (1973) 5 SASR 554, a decision to like effect.
I hold that the plaintiff's damages, other than those that are recovered pursuant to the provisions of the Fatal Accidents Act, are not liable to reduction by reason of any wrongful act on the part of the deceased.
With respect to the particulars of contributory negligence, there is no evidence whether or not the deceased was holding onto the boat just before he was thrown out of it. There is no basis for inferring that if the deceased had been seated he would not have been thrown out. Indeed, the inference is to the contrary, given that Sam was seated just behind him but was also thrown out of the boat. The point that was advanced in argument on behalf of the defendant was that the deceased's wrongful act, viz, an omission that contributed to his death within the meaning of the Wrongs Act, was his failure to wear a life jacket.
There was evidence that the life jackets in the boat were not in the best condition, but they would have kept the deceased afloat for the length of time it took the rescuers to come to the scene. It is true, as Mr Phillips submitted, that there was no evidence of how the deceased was ejected from the boat, but it seems to me likely that as the defendant was ejected from a position on the starboard side and came to the surface, and as Sam was ejected from a seated position just behind the deceased and also came to the surface, that had the deceased been wearing a life jacket, he, too, would have floated after being thrown out of the boat. There was no evidence of the cause of the deceased's death, but I infer it was from hypothermia or drowning.
Contributory negligence is concerned only with those acts and/or omissions of the deceased that contributed to his death. See Hotson v East Berkshire Health Authority [1987] 1 AC 750; Fitzgerald v Penn (1954) 91 CLR 268. The onus of proving that the pleaded acts or omissions contributed to the deceased's death lies upon the defendant. See Nicholson v Nicholson (1994) 35 NSWLR 308 at 314 – 315; Labathas v Woolworths Limited [2000] ACTSC 30; Woolworths Limited v Arnold [2005] NSWCA 21.
In this case, before the defendant is entitled to call in aid the provisions of the Wrongs Act, s4(1) and (4), he must establish that it is more probable than not that the deceased's failure to take the safety precaution of wearing one of the life jackets in the boat contributed to his death in the same way as a defendant driver must prove that the plaintiff passenger's failure to wear a seatbelt contributed to the damage (as defined by the Wrongs Act) the passenger sustained. But for the deceased's death, no damage would have been sustained pursuant to the provisions of the Fatal Accidents Act.
Had the deceased been wearing a life jacket, the probabilities are that he would have remained above the water until the rescuers arrived on the scene. Mr Schofield said in an affidavit he made for the coronial enquiry, that when he and his companions pulled the defendant from the water, "He was very blue in the face and very weak. We pulled him on board and he had no strength to assist us". In his oral evidence at trial, Mr Schofield said, "By the time we got to [the defendant] he was gurgling water and from my observations he only had a short time in him before he was going under … he was very cold, he was blue and he was obviously … in distress". The rescuers put some dry, warm clothing on the defendant. One of Mr Schofield's companions said in his coronial affidavit that the defendant was so weak he could not lift an arm to assist his removal from the water. In cross-examination the defendant said that when he was pulled from the water, "My body was closing down, just about at the stage – closing down, I was very, very close to death."
The day after the accident, police divers searched the lake for bodies. The coronial affidavit of one of the divers deposes the temperature of the water that day was 5oC. The defendant agreed in his evidence that he was very weak indeed when he was pulled from the water.
I infer that the defendant was close to death from hypothermia when he was pulled from the water. There was no evidence of how long he had been in the water but it was a considerable time because at first, the rescuers did not appreciate that the cries they heard were cries for help. Mr Schofield's affidavit deposed that it was not until "after about ten minutes" that they decided to investigate the cries as initially they thought that the noise came from people camping on a nearby island.
In the light of all this evidence, I am not persuaded that it is more probable than not that the deceased's failure to wear a life jacket contributed to his death. It would have done nothing to avoid hypothermia. The defendant was on the brink of death when he was pulled from the water. An inference from the evidence is that had the deceased been wearing a life jacket, he would have been still alive. Another inference is that the rescuers would not have reached him before he died from hypothermia. I cannot say that one inference is more probable than the other.
The damages recoverable pursuant to the Fatal Accidents Act are not liable to reduction pursuant to the provisions of the Wrongs Act, s4(1) and (4). I turn to the issue of damages.
The plaintiff's claim for damages for psychiatric injury
The plaintiff was at the defendant's shack the weekend of the tragedy. Expecting the return of the fishing party, she and her mother-in-law walked down towards the launching ramp about 12.30 pm on Sunday 29 August 1999. On the way there, she met people who told her that there were two little boys in the lake. Fearing the worst, she returned to the shack to get her car. Whilst there, friends told her that Joel was safe but her husband and Sam were missing. The plaintiff was, of course, desperately worried, but in the beginning thought that both had probably swum to shore. Her hopes faded as the time passed between then and when each of the bodies was found. They were finally buried on 20 October 1999.
Before the bodies were found, the plaintiff said that she used to dream about them floating to the bottom of the lake. Joel immediately appeared to be disturbed by the accident, but refused to discuss it saying that "it makes you too sad mummy". The plaintiff consulted her general practitioner who prescribed antidepressants but they made her vomit so after further consultation she stopped taking them. The plaintiff and her two children went to stay with her parents in South Australia for the Christmas break 1999.
The plaintiff described her life in the immediate aftermath of the accident as being in "a fog". She, the defendant and his wife consulted a Mr Trevor Hatten, consultant psychologist, for tensions had grown up between the plaintiff and the deceased's parents. The plaintiff said that she began to feel very isolated.
The plaintiff did not receive treatment from a psychiatrist but was seen by two psychiatrists. On 17 July 2002, she was seen by Dr I Sale as arranged by her own solicitors, and on 14 September 2004, she was seen by Mr N Rose, psychiatrist in Victoria, as arranged by the solicitors for the defendant. Each psychiatrist made a written report which was tendered in evidence. It is convenient to set out parts of Dr Sale's report because it encapsulates the factual evidence given by the plaintiff:
"Consequences
Mr Hatten conducted an assessment a few months after the deaths of Craig and Sam. Obviously that assessment would be influenced by the intensity of Ms Hanlon's grief at the time.
Over more recent times, Ms Hanlon referred to her emotional status as varying a great deal, 'like a roller‑coaster'. She can become markedly distressed on particular dates, eg on birthdays, on the anniversary of the events in question: There have been times when she has felt markedly depressed. She has also been irritable. At one stage she was prescribed an antidepressant, namely Cipramil, but this was not tolerated.
Initially, there were marked sleeping problems but this improved. There was also weight gain. She found that she was prone to drink excessively if out socially. There have been some problems with memory and she has also been anxious, particularly if the children are absent from her.
Always somewhat orderly and something of a worrier, these traits have increased. She check locks and windows repeatedly. She also checks her children at night eg to make sure they are breathing.
Overall though she thought that her situation had improved.
Ms Hanlon's status has been aggravated by two issues. Firstly, there is the behaviour of her son, Joel. It will be recalled that Joel was with the boat for sometime, a helpless witness of what was occurring. Subsequent to the tragedy, Joel's behaviour became very difficult. He is irritable, and has often caused damage to property, eg walls, Ms Hanlon's car. He is difficult to reason with, and at times he has been clinging, eg when he started school.
He is subject to nightmares. His behaviour can be regressive in quality at times.
Joel saw a psychologist over a period of about a year. He was also seen by a paediatrician who prescribed Catapres, which is taken on an as needed basis.
The other difficulty for Ms Hanlon is the downturn in her relationships with her husband's family.
…
Comment
Understandably, Ms Hanlon experienced intense grief following the boating accident that led to the deaths of her husband and oldest son. She continues to grieve for them, experiencing increased sorrow at particular times, eg during August.
In general, normal grief is said to substantially recede after one calendar year has passed. However, this is a somewhat artificial and arbitrary measure. There are obviously different levels of grief, depending upon the nature of the incident and the relationship that has been disrupted. Grief for the loss of a child will be particulary lengthy.
Thus, there may be some debate as to whether the protracted nature of Ms Hanlon's grief is normal or abnormal."
By way of elaboration of Dr Sale's summary, the plaintiff explained in her evidence that upon her return from South Australia in early 2000, Joel went to Roseneath Primary School, Grade 1. She said that he was prone to very angry outbursts. She said that he was all right when people were around but became angry and uncontrollable when alone with her or his younger brother Adam. She said that Joel had said on more than one occasion that he wanted to kill himself because he wanted to be with his Dad, and on one occasion, slightly cut his throat with a knife. The following passage taken from the evidence-in-chief of the plaintiff is illustrative:
"… we've had four or five broken windows, took the hammer to all the window sills, he took a knife to the trampoline, Adam cops it, you know, if Adam says the wrong thing Joel will jump him there and just hit him, he - what else - just recently, he had his tool box and stabbed Adam's bedroom window – a bit of Adam's bedroom door with big gashes and he was pulling it down – there's big gashes in the door, he punched my mirror in my car, my rear vision mirror. "
I interpolate to observe that there is no claim by Joel for damages for psychiatric harm suffered by him. This evidence was led upon the basis that Joel's behaviour was a result of the accident and was a stressor prolonging the psychiatric harm suffered by the plaintiff by reason of the death of her husband and son.
After the accident, the plaintiff developed an "itchy rash" on her head and the palms of her hands which resulted in the loss of some skin but this condition has now disappeared. In addition to drinking excessively after the accident as referred to in the report, the plaintiff said she started "binge eating" with resultant weight gain.
In December 2002, the plaintiff returned to live in her home town in South Australia and was still living there at the date of trial. In his closing address, Mr McKee, junior counsel for the defendant, accepted that if a finding of negligence was made against the defendant, the plaintiff did thereby suffer compensable psychiatric harm, but submitted that she recovered from her psychiatric illness shortly after she returned to South Australia at the end of 2002.
Returning to Dr Sale's report, after the reference to whether the protracted nature of the plaintiff's grief was normal or abnormal, he continued:
"Setting that issue aside, she has also experienced some symptoms that are indicative of psychiatric disorder over and above grief. For example, she has developed a need to obsessionally check windows and locks, or the health status of her children. She has also developed a skin rash. Her alcohol use can be problematical on social occasions. There has been weight gain. She has experienced anxiety symptoms, tremor and shortness of breath.
I would regard Ms Hanlon as having developed an Anxiety Disorder as a consequence of the tragedy that led to the death of her husband and oldest son. I do not believe that her difficulties warrant a diagnosis of Posttraumatic Stress Disorder. This diagnosis was made at an earlier stage, but that assessment was performed at a time when her grief would have been particularly intense.
A contributor to Ms Hanlon's anxiety symptoms is the situation with her son, Joel. Joel appears to have suffered a significant level of difficulties. Given what happened to him, that is not surprising.
Ms Hanlon's situation is gradually improving with time. I would expect this process to slowly continue. She now has occasional consultations with the psychologist but the need for this will probably diminish.
I expect that she will probably eventually return to her home state of South Australia. I expect that that would be a beneficial change for her."
Mr Rose said that although he was of the opinion that the plaintiff did not suffer from any psychiatric illness when he saw her in September 2004, he did not disagree with Dr Sale's opinion that in July 2002, she was suffering from an anxiety disorder.
I accept the opinions and facts set out in Dr Sale's report and find that the defendant's tort caused the plaintiff to suffer an anxiety disorder, not amounting to a post-traumatic stress syndrome.
By way of special damages, the plaintiff claims $17,055 fees paid, or owed, by her to Mr Hatten. Mr Hatten was called to give evidence that the fees were payable. He said that he first saw the plaintiff weekly and then monthly. He said that the consultations ceased after the plaintiff returned to South Australia at the end of 2002, apart from three or four phone conversations.
The questions are whether the need for these consultations was created by the defendant's tort and whether the cost of them is reasonable. Mr Hatten said that he counselled the plaintiff to help her cope with the symptoms from which she suffered. Prima facie, it is likely that the plaintiff would need such counselling to assist her with her anxiety disorder and the inference is inescapable that the need was created by the defendant's tort. Dr Rose, however, doubted the need for the counselling to go on for as long as it did. I share his doubt, particularly after December 2002, and also share his doubt as to the need for the frequency of the consultations. There is no evidence as to whether the fees charged by Mr Hatten were reasonable or not. Although the onus is on the plaintiff, there is no reason to suspect that the fees charged and which are detailed in documents tendered in evidence were other than reasonable. I think the best way to approach this assessment is to take a broad brush upon the basis that the tort caused the need for them, and that the cost was more or less reasonable but the number of consultations was excessive. Upon this basis I allow the claim in the sum of $15,000.
Whilst dealing with fees for psychologists' consultations, it is convenient to deal with a claim by way of special damages pursuant to the provisions of the Fatal Accidents Act. The claim is for $1,700 for fees paid to clinical psychologist, Ms Starke. Ms Starke did not give evidence. The plaintiff said that she took Joel to see Ms Starke, I infer, for assistance with his behavioural problems. Ms Starke's account was tendered in evidence by consent. It shows that she is a psychologist practising in Sandy Bay. The account details 17 visits during the year after the death of Joel's father charged at $100 per visit. The first was on 10 March 2000 and the last on 14 November in that year. The plaintiff gave evidence of Joel's disturbed behaviour after the accident and I find that the defendant's tort caused the need for these consultations. Prima facie the amount claimed appears to be reasonable. However, counsel made it clear that the only plaintiff in the action was the widow. She claimed on behalf of herself and the two children pursuant to the Fatal Accidents Act, and for loss and injury suffered by her. The relevance of Joel's disturbed behaviour was that it caused the plaintiff's anxiety to persist longer than would have been the case had Joel not been disturbed. Although there were no submissions about this, it seems to me that the expenditure on Ms Starke cannot be described as a lost benefit caused by the death of the deceased and cannot form part of the claim under the Fatal Accidents Act. Section 10(2) of that Act provides for the recovery of medical expenses incurred as a result of the wrongful act causing death, but I think that that is a reference to medical expenses for the treatment of the deceased. There is no evidence that Joel suffered from a psychiatric illness. As there is no claim that Joel is entitled to recover damages for psychiatric harm, this expenditure by or on his behalf is not recoverable as part of his claim. It might be possible to argue that it was expenditure in mitigation of the plaintiff's loss as it was an attempt to shorten the period of time during which she suffered from an anxiety disorder but there was no evidence of Joel's illness, if any, nor of whether it was an appropriate mitigatory step to take.
Evidence was given by two clinical psychologists, Ms Rooney and Ms Forrester, both of whom practice in South Australia. Ms Rooney saw both Joel and Adam. Ms Forrester saw only Joel. Ms Rooney first met the family on 3 May 2004 and has "had them in ongoing therapy since then". She found disturbed behaviour in the case of both children, particularly Joel. Ms Forrester found no evidence of disturbance in the case of Joel. Significantly, the histories taken from the plaintiff by each psychologist were quite different.
There is no need to rehearse this psychological evidence. As I have said, it was led, as was the other evidence, to show that a tort caused stressor, Joel's disturbed behaviour, which, it was claimed, persisted after the move to South Australia and caused the plaintiff's psychiatric illness of anxiety disorder to continue after her resettlement in her home town. I am not persuaded that the illness has so persisted. The plaintiff agreed that she felt a lot better after she had returned to live in South Australia, although she was experiencing difficulty bringing up the boys, particularly Joel, whom I note, was close to being a teenager at the date of trial. There is no psychiatric opinion to support a diagnosis of psychiatric illness after July 2002. There is psychiatric opinion evidence that in 2004 the plaintiff suffered from no psychiatric illness. I find that the plaintiff's psychiatric illness of anxiety disorder continued until shortly after her return to South Australia at the end of 2002.
In making that finding, I should say that I have no doubt the plaintiff still grieves for the loss of her husband and her eldest son. There is also no doubt that there are many events that occur and memories that periodically return to sharpen that grief, but the law has long held that:
"… save in exceptional circumstances, a person is not liable, in negligence, for being a cause of distress, alarm, fear, anxiety, annoyance, or despondency, without any resulting recognised psychiatric illness. See eg Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 469 per Lord Goff of Chieveley."
Per Gleeson CJ in Tame v New South Wales (2002) 211 CLR 317 at 329 (par7).
As Cox CJ said in Whayman v The Motor Accidents Insurance Board [2003] TASSC 149 at par28:
"Damages for an injury of this nature are extremely difficult to assess. No amount of money can compensate the plaintiffs for the loss of a loved son. The value of that loved son can in no way be measured in financial terms and an award of damages is not intended to place a value on the person lost. At best, it represents an acknowledgment that the plaintiffs have lost something beyond price and a finite sum is determined by the Court as some form of solace to those wronged by the tortious acts of the driver of the other car."
With respect to the plaintiff's claim for damages for psychiatric illness, I assess her general damages in the sum of $20,000. To that must be added the special damages of $15,000, making a total award of $35,000.
With respect to the claim to be assessed pursuant to the provisions of the Fatal Accidents Act, I shall not include an allowance of $1,700 by way of special damages for Joel's consultation with Ms Starke.
The Fatal Accidents Act claim
At the date of the death of the deceased, the plaintiff and the two surviving children were wholly dependent upon the deceased's earnings. As mentioned earlier in these reasons, the deceased worked continuously at the Zinc Works from the time of his return to Tasmania in 1988 until the date of his death. Zinifex Limited is the present operator of the Zinc Works. At the time of his death, the deceased was a Level 7 operator in the castings division. This is the highest level achievable in the castings division at the Zinc Works. Counsel have agreed the following primary figures:
(a)but for his death, the deceased would have earned a net income of $254,952.50 between 29 August 1999 and 30 September 2005 (17 days before the trial commenced);
(b)he was utilising his capacity to earn income at the date of death to generate $920.63 net per week.
Before dealing with the submissions that were made with respect to the calculations or assessments that should be made upon the basis of those agreed figures, it is necessary to refer to the evidence concerning the family finances and the deceased's relationship with the plaintiff.
At the time of his death the deceased worked four days on and four days off. He worked 12 hour shifts, two day shifts, followed by two night shifts. I find the probabilities are that he would have remained an operator in the castings division at the Zinc Works for the rest of his working life. The only occasion the deceased sought work elsewhere was when he applied for a position with the same company at a different smelter in another State. The wages payable at that position were higher than the wages he was then earning. The application was unsuccessful.
The deceased looked after the garden at home. His lawns were known as the "bowling greens". He grew vegetables. The plaintiff's evidence was that she saved between $10 and $15 per week because the deceased grew their own vegetables. The deceased used his trailer to gather the firewood necessary to supply the wood heater in the family home. He painted the roof. He helped a friend paint the weatherboards. He looked after and serviced the two motor vehicles the family owned. As mentioned earlier, the deceased was a very keen hunter and brought home game that the family ate. He made up cooked patties from wallaby meat. He also cooked fished that he caught. The deceased helped with the children by looking after them when the plaintiff went out and occasionally by bathing them. The plaintiff said that the deceased also helped with the housework, vacuuming, dusting, washing the dishes and so on. She estimated that he spent between five to seven hours a week doing this work and in the order of three hours a week doing work in the garden, especially during the growing season.
In common with the majority of "middle Australian" males, the deceased always did the barbecue cooking. This was about once a week during the summer months and more often during the frequent camping trips which the family took. If he was not working, the deceased also often cooked Sunday breakfast for the family. He also did sundry other chores around the house such as twice yearly cleaning the exterior of the windows and the heavy duty work maintaining a swimming pool the family owned. The picture painted by the plaintiff's evidence leads me to conclude that the basic arrangements were that the plaintiff looked after the children and the house, and the deceased looked after the outside and the grounds. I think it most unlikely that the deceased spent as much as five to seven hours a week doing household chores.
In her detailed and carefully formulated closing submissions, Ms Taglieri, junior counsel for the plaintiff, tendered a list of services that the deceased provided, together with page references from the transcript of evidence, and submitted that they totalled about 15 hours per week. However, I consider this to be an over estimate and a more realistic figure would be in the order of 10 – 12 hours per week.
The Fatal Accidents Act, s5, entitles the plaintiff to recover "such damages as [are] proportionate to the injury resulting from … the death". It is well settled law that the section only contemplates recovery of pecuniary losses resulting from the death. It is also well settled law that in ascertaining the extent of that pecuniary loss, regard shall be had to "the reasonable expectation of benefit upon which the claimant would have been entitled to rely had his life not been brought to an end …", per Dixon J (as he then was) in Public Trustee v Zoanetti (1945) 70 CLR 266 at 276 – 277. See also Davies v Powell Duffryn Associated Collieries Limited [1942] AC 601.
With respect to the gratuitous services rendered by the deceased, this claim is not concerned with any need for services that may have been created by the defendant's tortious conduct, but with the value of the loss of those services insofar as there is a reasonable expectation that the deceased would have continued to render them. See Nguyen v Nguyen (1990) 169 CLR 245.
With respect to the question of "reasonable expectation", Daviesv Taylor [1974] AC 207, is authority for the proposition that the onus is on the plaintiff to show that she has "lost a reasonable prospect or chance of enjoying financial benefit", per Lord Morris of Borth-y-Gest at 214. I do not think that there was any dispute in this case about the applicability of those legal principles.
Apart from a minor exception to which I shall refer shortly, it was not suggested by the defendant's counsel that the losses had been offset by any benefit that had accrued by reason of the death of the deceased.
Closing submissions on behalf of the defendant concentrated on the plaintiff's reasonable expectation of receiving pecuniary benefit from the deceased not being as great as she claimed because:
· there was a substantial risk that the marriage would have broken down;
· it is unlikely the deceased would have continued to work until aged 65;
· the plaintiff would have been likely to return to the workforce and thus the level of benefit received from the deceased would have diminished;
· the plaintiff has good remarriage prospects;
· the plaintiff has accrued a benefit in that she moved to a smaller home with electric heating instead of wood.
With respect to the last point, the plaintiff's evidence was that within 12 months of the deceased's death, she sold the house at Malabar Street and bought a smaller one. In that house there was a heat pump instead of a wood heater and the house in which she now lives is heated by gas. The house that replaced the Malabar Street house also had smaller lawns, but the one she now lives in has bigger lawns. The pecuniary benefit occurred from the initial change of house is very small in the scheme of things, but will be borne in mind when consideration is given to the contingency factor.
There was friction in the marriage. The plaintiff said that the deceased drank too much and there were arguments about this. She said that his excessive drinking began soon after her first son was born. On three occasions during the 12 years they lived together, the deceased assaulted her. Twice he slapped her and once he kicked her. On three occasions the plaintiff left the deceased over his drinking, but on each occasion they reconciled after a few weeks. The deceased was always repentant and agreed to moderate his drinking. He had had some success at this at the time of his death, but he would still become intoxicated, on average, once a fortnight. He bought two dozen stubbies of beer a week and smoked cigarettes. He used to drink with male friends in a shed in the backyard of the family home. The plaintiff described the shed as "a little boys' club".
The plaintiff said at the time of each of the three separations there was a young baby whom she was breastfeeding. She said she was tired and emotional and there were arguments.
The plaintiff has not remarried. She is not, to use a modern expression, in a relationship with anyone, although she was in such a relationship with a resident of the United States of America for a brief time in December 2004. She has no plans to marry, but frankly conceded that she could not foretell the future or, as she said, "the twists and turns" of life.
Most, if not all, marriages go through periods of disharmony. Matrimonial relationships are put under great stress with the advent of children and short periods of argument and separation on occasions of stress are not uncommon. The plaintiff said that there was never any question over the love she and the deceased had for each other. Excessive consumption of alcohol was a stressor. These are relevant matters when assessing any discount for "the vicissitudes of life", but I do not conclude from the totality of the evidence that the plaintiff's marriage was on the brink of collapse. There was a risk that the parties might separate, but then that risk is present in any marriage. It was perhaps slightly higher in this case because of the deceased's excessive consumption of alcohol, but the friction this caused would have lessened as the demands made on the plaintiff by her having to care for the children diminished as they grew older.
With respect to remarriage prospects, Gaudron, Gummow and Hayne JJ said in De Sales v Ingrilli (2003) 212 CLR 338 at 357:
"Ordinarily, no deduction should be made on this account [remarriage prospects], whether as a separate deduction, or as an item added to the amount otherwise judged to be an appropriate deduction for the vicissitudes of life ...".
At 395, Kirby J expressed agreement with that passage in the joint judgment. In the course of the joint judgments, their Honours repeated that which was said in Carroll v Purcell (1961) 107 CLR 73 at 79 that "the death of one spouse inevitably results in a revived capacity in the other to marry", but emphasised that it was the financial consequences to the widow that were relevant to an assessment of damages under the Fatal Accidents Act, not the fact of remarriage itself. At 366 and 367, their Honours said:
"It is these last points about the financial consequences of a new relationship which are of critical importance. They deny the validity of looking separately at some 'discount for remarriage' over and above whatever discount is made for the 'vicissitudes of life'. Among those vicissitudes are all the hazards and benefits that may befall a person or, where the claim is made for a surviving spouse, may befall a couple during life. Any new union, which is formed after the termination of the union which underlies a claim made pursuant to a wrongful death statute modelled on Lord Campbell's Act, is as exposed to precisely the same kinds of hazard and danger as was the earlier union. It, too, may end in death, separation or divorce. The financial advantages and disadvantages to one partner will change throughout the continuance of the union as the careers and ambitions of the partners change both with and against their will. Those, who today are receiving income from personal exertion, may, tomorrow, cease doing so for any number of reasons. Those who are employed may have the employment terminated. Those who are self-employed may fall ill, or the venture in which they are engaged may fail. Those who receive income from investments may invest unwisely or unprofitably. Those who are now not employed outside the house may later forge a new career either because they want to or because they feel they should or must do so. And so the examples can be multiplied. Yet if these possibilities are taken to account in assessing the vicissitudes to which the former union was subject (and they must) to ignore them when considering a new union, by assuming that the new union would be destined to survive and prosper, would be to shut one's eyes to reality.
It is, therefore, wrong to treat the prospect of remarriage or the prospect of forming some new continuing relationship as a separate item for which some identified discount must be made from whatever calculation is made of the present value of future benefits that would have flowed from the deceased to the relatives. Even if the prospects that a surviving spouse would remarry or enter a new continuing relationship could be assessed (and there will be few cases where that would be possible), predicting when that would occur is impossible, and predicting some likely outer limit of time by which it would probably have occurred is only slightly less difficult. But most importantly, it cannot be assumed that any new union will be, or will remain, of financial advantage to any of those for whose benefit the action is brought. That being so, some financially advantageous marriage or relationship must be treated as only one of many possible paths that the future may hold. It is wrong to single it out for special and separate allowance. That others in the past have had damages reduced on this account is not reason enough to continue the error."
Their Honours continued:
"Nor can the prospect of remarrying or forming a new relationship properly be seen as a matter which, under the general heading of 'the vicissitudes of life', enlarges the discount which otherwise must be made from the present value of the benefits which the deceased was providing at death. The assessment of that discount is not easy. It must reflect not only the fact that the future may have been better than the past but also the fact that it may not. It is wrong to fasten upon one of the myriad possible paths that life may take and say that, on account of that possibility, it is right to enlarge the discount that must be made. The discount can be assessed only as a single sum which reflects all of the possibilities."
Their Honours went on to say that the foregoing passage did not deny the relevance of evidence at trial of the formation of some new relationship and its consequences in any particular case. They then repeated, at 367, that apart from such cases "… no separate allowance should be made for the possibility, even probability, that a new relationship will be formed".
The present case is not out of the ordinary and I direct myself in accordance with the majority in De Sales upon the issue of the plaintiff's prospects of remarriage when assessing any percentage reduction for "the vicissitudes of life".
With respect to the plaintiff's prospects of returning to the workforce
At the time of trial, the plaintiff was earning between $60 - $90 per week cleaning houses. The plaintiff said that she probably would have gone back to work in 2005, but only if Adam was coping well at school, and then only during school hours. I infer that she was referring to unskilled or semi-skilled part-time work. With respect, the submission that by reason of her return to work the plaintiff's reasonable expectation would be to receive a lesser pecuniary benefit, I observe that it does not follow that any return to work by the plaintiff would result in the prospect of her receiving a lesser pecuniary benefit. As to this proposition, see Dominish v Astill [1979] 2 NSWLR 368 at 387 – 388; Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR 1 at 13 – 14. The likelihood is that her earnings, which would probably be modest, would be spent on joint benefits such as improvements to the house, family holidays and perhaps some luxuries for herself. This likelihood is increased in this particular case, for although the deceased spent money on beer, cigarettes and his hobbies of hunting and fishing, he was otherwise a very frugal man. He spent very little on clothes, preferring to use the clothes issued by his employer. He did not own a suit and rarely bought a pair of jeans. The plaintiff cut his hair. Curiously, the deceased always did the family shopping. He apparently was always anxious to seek out the bargains.
The plaintiff gave evidence that the arrangement was that the deceased kept about $30 to $50 per week (1999 dollars) and the rest of his wages went into the bank and was used by both of them for general family expenditure.
With respect to the likely date of the deceased's retirement from work, Ms Taglieri submitted that I should find that it would not have been likely to occur until the deceased reached 65 years of age. Mr Pennicott, the workers compensation adviser and Human Resources Officer at Zinifex Limited, said that of the 80 operators in the castings division, only four were over the age of 60 years, and the oldest of the four is 63. Mr Pennicott said that the work used to be heavy manual labour, but added:
"Basically it's a manual labourer type role where they do some manual component, that's a machine operation, and over the last few years the manual components of the work are diminishing and being replaced by more machine operations so the role is, I suppose, changing more from heavy manual labour to more a machine operator with a smaller component of heavy manual work. Two examples of reduction in the heavy component have been that they used to have to hammer out these things called block moulds with a sledge hammer, quite heavy demanding work which is now replaced by a hydraulic system, and another one is that by Christmas this year they're going to replace the hand stacking ten kilo zinc slabs, where they now manually stack them into bundles the machine's going to do that from now so there'll be more operating the machinery than manually stacking them by hand."
The plaintiff said that the deceased had seen many of his friends retire from the Zinc Works at aged about 55 years and they died within a few years of retirement. The deceased said that he did not want that to happen to him. They talked about him doing other work after he retired from the Zinc Works, but I observe that he would not have found that easy to do, given his age and limited skill base.
The evidence clearly showed that the deceased was energetic and, as the plaintiff said, a good provider. The heavy nature of the work in the castings division of the Zinc Works was lessening and I think in all the circumstances the probabilities are that the deceased would have continued to work until aged about 62 years. The plaintiff's brother also works in the castings division at Risdon. He spoke of the diminution in the manual labour at the work place and the emphasis the employer placed upon occupational health and safety issues. He said, "It's not a job you walk away from."
Mr Pennicott's evidence was that the work was secure and the pay rate likely to remain steady, increasing with the cost of living. He said that over the last few years, the company had paid two bonuses, one of approximately $800 and one of about $1,400. In 2004 and 2005, every employee was given $1,000 worth of the company's shares. These are benefits, a proportion of which the plaintiff could have expected to receive, and with respect to the future, they are favourable contingencies in that similar payments might be made in the future.
There was no detailed evidence of how the deceased's wages were actually spent. Mr Gunson submitted that this meant it was difficult, if not impossible, to make any assessment. With respect to this, Ms Taglieri relied upon the ABS, Household Expenditure Survey 1998 – 1999, Summary of Results, published in Lunz, Assessment of Damages for Personal Injury and Death, 4th ed, at 501. Mr Gunson submitted that I should not have regard to this, absent evidence as to how it was compiled. This submission overlooks the provisions of the Evidence Act 2001, s159, and the observation of McHugh J in De Sales v Ingrilli (supra) at 373 that evidence from this survey was more sophisticated than evidence of actual expenditure from the surviving spouse. In my view, resort to the survey was an entirely appropriate course to follow with respect to this case, and likely to prove a more reliable basis than any figures produced from the plaintiff's memory of what was spent on what six years prior to her giving evidence. The Full Court of Western Australia in De Sales v Ingrilli (2000) 23 WAR 417 approved reliance by the trial judge on the ABS figures, subject only to some modification in the light of specific evidence given in the case. This issue was not the subject of the appeal to the High Court. Recourse to this table was also approved by the New South Wales Court of Appeal in RTA v Cremona [2001] NSWCA 338. See also the cases noted in Luntz at 499, footnote 142.
In accordance with the table, I find that the pecuniary benefit the plaintiff and two children could have reasonably expected was 76 per cent of the deceased's net income. This percentage applies to the whole of the period between the date of death and 30 September 2005, and I assess it in the sum of $193,763.90. I appreciate that this calculation should be extended to the date of judgment, but to include it in the period for future loss will not distort the figures to any extent, figures which are, after all, not simply a calculation but a matter of judgment.
With respect to the past period, there is no reason to apply any discount for the vicissitudes of life. In the light of the events that have occurred, the only possible risk is that had the drowning accident not occurred, the deceased may have suffered some incapacity, not covered by workers compensation, preventing him earning income between August 1999 and September 2005.
With respect to the future, Ms Taglieri submitted that it should be considered in two periods:
(a) until Adam turns 16; and
(b) until the deceased would have reached 65 years of age.
When Adam turns 16 on 1 March 2014, Joel will be 20, turning 21 in December that year. Ms Taglieri submitted that because Joel was doing well at school, it is likely he would pursue some tertiary education or study, and therefore remain a dependant past the age of 16. The plaintiff said that Joel was doing well at school. She said that she had just got a report "and he got As and Bs". She expressed the hope that he would remain at school until he finished Year 12. She expressed no further ambition for him (other than that he would become a fine young man).
The plaintiff had no tertiary education and, I infer, nor did her father. Joel's father had been engaged in manual work ever since he was 21 years of age. Accordingly, it does not appear likely that there would have been any family expectations for tertiary education for any of the children. However, these days matriculation is a pre-requisite for qualification for many trades, followed by extensive technical and theoretical instruction. Given that Joel appears to be a good student, there is a likelihood that he would remain dependant past the end of his school life for some period. Whether it would be for as long as Ms Taglieri submitted I am, of course, unsure. The evidence was that at the date of trial, Joel was in Grade 6. He will complete Year 12 at the end of 2011, just before he turns 18. It is quite likely that his dependency would continue until he was 20 years old, which is a year short of the period postulated by Ms Taglieri. As the figures submitted on behalf of the plaintiff calculating the extent of the dependency were agreed, it is not worth tinkering with them on this account, for over the whole period any alteration in the total sum would be very small indeed, so I shall accept them.
The evidence was that at the date of trial, Adam was in Grade 2. The plaintiff said that he "struggled" at school. Although it is early days for him, there is no basis for assuming that but for the death, Adam's dependency would continue past the age of 16 years. He will reach that age on 1 March 2014. That will be the beginning of Year 11 for him, so I find the likelihood is that Adam's dependency would cease at the end of that school year or the beginning of 2014. During the 9 years from 2005 to 2014, the plaintiff and Adam could reasonably have expected to have benefited from 71.9 per cent of the deceased's income.
I observe that there is no absolute precision about these periods or percentages. The former are complicated by the fact that Joel was born at the end of a school year and Adam at the beginning. According to the plaintiff's evidence, Joel did not start in Grade 1 at Roseneath Primary School until the start of the year after his 7th birthday, but Adam started in Grade 1 a week or so before he turned 6.
It is necessary to ascertain the present value of the future expectations. Ms Taglieri submitted that with respect to the claim for loss of gratuitous services, the appropriate discount rate is 3 per cent in accordance with the principle established by Todorovic v Waller (1981) 150 CLR 402. She submitted that the Common Law (Miscellaneous Actions) Act 1986, s4, applied only to that part of the award that was based on the loss of expectation of financial benefit. That Act, s4, provides:
"(1) Where an award of damages that relates to personal injury or the death of a person is to include compensation, awarded as a lump sum, in respect of damages for future loss that is referable to –
(a) loss or impairment of capacity to earn;
(b) loss or diminution of future probable earnings;
(c) loss of the expectation of financial support; or
(d) a liability to incur expenditure in the future –
the present value of the future loss shall be quantified by adopting –
(e) a discount rate of 7 per cent; or
(f) such other discount rate of a percentage fixed by the Governor.
(2) …
(3) …
(4) … "
The section concerns (inter alia) an award of damages that relates to the death of a person, but only insofar as the award includes lump sum compensation in respect of damages for future loss that is referable to "loss of the expectation of financial support". In Ruby v Marsh (1975) 132 CLR 642, Barwick CJ said at 651 that in Philpott v Glen (1973) 47 ALJR 555 at 557, Pape J:
"… quite rightly points out the damages to be awarded under [the Victorian equivalent of the Fatal Accidents Act (Tas)] are not given for the loss of earning capacity which has been destroyed by death, but for the loss of the expectation of financial support by the deceased."
This point of distinction was made by the Full Court of Queensland in Gwydir v Peck [1983] 1 Qd R 351, where the legislation was confined to future loss referable to deprivation or impairment of the earning capacity or liability to incur expenditure in the future.
I accept Ms Taglieri's submission that while 7 per cent is the appropriate discount rate with respect to that part of the award that is referable to loss of expectation of financial support, the Common Law (Miscellaneous Actions) Act said nothing about compensation for loss of gratuitous services. Section 5, which abolished the rule in Griffiths v Kerkemeyer (1977) 139 CLR 161 is confined to "an award … that relates to personal injury of a person." This point was relied upon by Wright J in Targett & Anor v Targett (1999) 9 Tas R 234 at 239 – 240.
I note in passing, that the Civil Liability Amendment Act 2005, which came into force on 15 December 2005, repealed the Common Law (Miscellaneous Actions) Act 1986 and enacted a discount rate of 5 per cent for causes of action that accrue after that date.
Mr McKee did not dispute the method adopted by Ms Taglieri for the calculation of damages, nor the arithmetic. His submission was confined to the factual assumptions upon which those calculations were based. Accordingly, I shall adopt those calculations as follows:
First period:
Net weekly earnings $920.63 x 76% = $699.67 discounted by 7% for 9 years (352)
$246,283.84
Second period:
Net weekly earnings $920.63 x 65.6% = $603.93 discounted by 7%
Multiplier 27 years is 647
Less first period 352
295$178,159.35
Total future loss
$424,443.19
With respect to the pecuniary value of the gratuitous services, counsel agreed that $12 was an appropriate hourly rate. In accordance with my finding of 10 – 12 hours per week, the calculation with respect to the past is $130 x 316 weeks, $41,080. With respect to the future, it is unrealistic to claim, as did the plaintiff, that but for the death, the deceased would have continued to provide services to the same extent as he was doing immediately prior to his death until he reached 75 years of age. As the children grew up, the extent of the services would diminish. It is likely that after the children left home the plaintiff and the deceased would have moved to a smaller house, and so on.
As stated earlier, a discount figure of 3 per cent is appropriate to ascertain the present value of providing gratuitous services in the future. Having said that, it is, of course, an exercise of judgment and guesswork, for what would have happened will now never be known. I assess damages for future loss of services in the sum of $100,000. For those with a compulsive need to resort to mathematics, that sum roughly equates to 8 x $12 x 1038.
Finally, there is a claim for the loss of a reasonable expectation of receiving a financial benefit from the deceased's superannuation. Mr Bundzulla, an actuary, gave evidence of his opinions and calculations. There was no evidence to the contrary. Assuming an annual wage increase of 4 per cent per annum, which is a reasonable assumption, the present value (discounted at the rate of 7 per cent) upon retirement at age 60 is $92,345, and upon retirement at 65 is $100,470. Consistent with my earlier finding, it is appropriate to assess the present day value of the deceased's superannuation in the sum of $95,000. The likelihood is that the expectation of the plaintiff with respect to this income would be slightly less than the 65.6 per cent figure published in the ABS Household Expenditure Survey. I would fix it at 60 per cent, or the sum of $57,000.
With respect to that part of the assessment of damages pursuant to the Fatal Accidents Act which is referable to future expectations, I have to apply a contingency factor. The prospect of marriage breakdown and consequent loss of expected benefit is a factor, but it does not weigh heavily in my view. I do not take into account any prospect of replacing the expected benefit as a result of re-marriage. On the benefit side, I think it is unlikely the deceased would have changed his employment or improved his financial position. A small favourable contingency to bear in mind is the prospect of future share issues and bonus. Having regard to the plaintiff's brother's evidence about the emphasis on occupational health and safety issues at the Zinc Works, and the secure nature of the employment, I think it is appropriate in all the circumstances to reduce the relevant part of the award by 15 per cent.
Summary of assessment
General damages for psychiatric harm $20,000.00
| Special damages for psychiatric harm | $15,000.00 |
| Sub-Total | $35,000.00 |
| Past loss of financial benefit | $193,763.90 |
| Past loss of gratuitous services | $41,080.00 |
| Sub-Total | $234,843.90 |
| Future loss of financial benefits | $424,443.19 |
| Future loss of gratuitous services | 100,000.00 |
| Future loss of superannuation | 57,000.00 |
| Sub-Total | $581,443.19 |
| Less 15 per cent | 87,216.47 |
| Sub-Total | $494,226.72 |
| Total | $764,070.62 |
It is necessary to apportion the damages between the plaintiff and the two children. As no submissions were made with respect to that, I will hear counsel for the plaintiff before making any orders. As this means that final judgment cannot be pronounced immediately, I invite both counsel to carefully check the calculations that I have made in this judgment so that if they contain any error, it can be corrected before proceeding to make final orders.
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