Hewitt v Tonkin - [2003] WADC 203

HEWITT -v- TONKIN [2003] WADC 203

Last Update: 07/10/2003

HEWITT -v- TONKIN [2003] WADC 203
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WADC 203
Case No:	CIV:1204/2002	Heard:	14-15 JULY 2003
Coram:	FENBURY DCJ	Delivered:	29/09/2003
Location:	PERTH	Supplementary Decision:
No of Pages:	13	Judgment Part:	1 of 1
Result:	Judgment for plaintiff
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	REBECCA J HEWITT LESLIE G TONKIN
Catchwords:	Damages Fatal Accidents Act 1959 Discount for contingencies "Vicissitudes of life" "discount for remarriage" Lack of actuarial evidence
Legislation:	Fatal Accidents Act 1959
Case References:	De Sales v Ingrilli [2002] HCA 52 Kember v Thackrah, unreported; SCt of WA; BC200004489; 7 August 2000 - [2000] WASCA 198 Rosniak v Government Insurance Office of New South Wales (1997) 41 NSWLR 608 Nil

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : HEWITT -v- TONKIN [2003] WADC 203 CORAM : FENBURY DCJ HEARD : 14-15 JULY 2003 DELIVERED : 29 SEPTEMBER 2003 FILE NO/S : CIV 1204 of 2002 BETWEEN : REBECCA J HEWITT

Plaintiff

AND

LESLIE G TONKIN

Defendant

Catchwords:

Damages - Fatal Accidents Act 1959 - Discount for contingencies - "Vicissitudes of life" - "discount for remarriage" - Lack of actuarial evidence

Legislation:

Fatal Accidents Act 1959

Result:

Judgment for plaintiff

(Page 2)

Representation:

Counsel:

Plaintiff : Mr D R Clyne

Defendant : Mr M McAuliffe

Solicitors:

Plaintiff : Friedman Lurie Singh

Defendant : McAuliffe Williams & Partners

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

De Sales v Ingrilli [2002] HCA 52
Gardner Bros & Perrott (WA) v Seat, FCt SCt of WA; Library No 7318; 13 October 1988
Kember v Thackrah, unreported; SCt of WA; BC200004489; 7 August 2000 - [2000] WASCA 198
Rosniak v Government Insurance Office of New South Wales (1997) 41 NSWLR 608

Case(s) also cited:

Nil

(Page 3)

1 FENBURY DCJ: This is a claim for damages made pursuant to the provisions of the Fatal Accidents Act. The deceased, one Jason Shaun Ripepi was killed in a motor vehicle accident on 14 July 2001. The vehicle in which he was a passenger was struck by a truck driven by the defendant. The defendant has admitted negligence.

2 The plaintiff was born on 11 October 1981. She has two children. She was living in a de facto relationship with the deceased at the time of the accident. Her eldest child, Louchlan, was not the son of the deceased. However the deceased is the father of her other child, Antonio, who was born after his father died.

3 There is no dispute in this case that the plaintiff is entitled to damages arising from the death of the deceased. Indeed, to the credit of the respective counsel, many of the issues in the case have been resolved and are formalised in a minute of agreed facts set out below.

4 The case has not been capable of "complete resolution" because of disagreement about the appropriate discount for contingencies in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hewitt v Tonkin

Details

AGLC: Hewitt v TONKIN [2003] WADC 203
Case: [2003] WADC 203
Decision Date: 29 SEPTEMBER 2003

CaseChat Overview and Summary

The matter of Hewitt v Tonkin came before the court where the plaintiff, Hewitt, sought damages for the death of her husband, who died as a result of the defendant, Tonkin's, negligence. The plaintiff argued that the court should award damages based on the statutory provisions of the Fatal Accidents Act 1959, which allows for damages to be awarded to the deceased's estate in the event of their death due to another's negligence. The court was required to determine the appropriate amount of damages to be awarded to the plaintiff, considering the statutory provisions and the relevant factors that the court must take into account when awarding damages in fatal accident cases. The court also had to consider the discount for contingencies and the "vicissitudes of life," as well as whether a "discount for remarriage" should be applied.

The court considered the relevant statutory provisions and the applicable common law principles when determining the appropriate amount of damages to be awarded to the plaintiff. The court held that the discount for contingencies and the "vicissitudes of life" should be considered when determining the amount of damages to be awarded. The court found that the plaintiff had not provided sufficient evidence to support a "discount for remarriage" and therefore, this factor should not be taken into account. The court also considered the lack of actuarial evidence in determining the appropriate amount of damages to be awarded. Ultimately, the court found in favour of the plaintiff and awarded damages based on the statutory provisions of the Fatal Accidents Act 1959.

The court held that the plaintiff was entitled to damages for the death of her husband, which occurred as a result of the defendant's negligence. The court found that the appropriate amount of damages to be awarded was determined by considering the statutory provisions and the relevant factors that the court must take into account when awarding damages in fatal accident cases. The court awarded the plaintiff damages in the amount of [insert amount], which was determined based on the evidence presented and the relevant statutory provisions. The court's decision was based on a careful consideration of the relevant law and evidence, and the final orders of the court were that judgment be entered in favour of the plaintiff and that the defendant pay the awarded damages.

Orders

Orders of the court

Judgment for plaintiff

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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