Isaac Geoffrey Mather BY His Next Friend Elke Lunn v Insurance Commission of Western Australia - [2025] WADC 78

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   ISAAC GEOFFREY MATHER BY HIS NEXT FRIEND ELKE LUNN -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2025] WADC 78
CORAM:   CURWOOD DCJ
HEARD:   17 - 18 FEBRUARY 2025; FURTHER WRITTEN SUBMISSIONS BY DEFENDANT ON 28 FEBRUARY 2025
DELIVERED          :   30 OCTOBER 2025
FILE NO/S:   CIV 2181 of 2023
BETWEEN:   ISAAC GEOFFREY MATHER BY HIS NEXT FRIEND ELKE LUNN
First Plaintiff
JETHRO JAMES MATHER BY HIS NEXT FRIEND ELKE LUNN
Second Plaintiff
AND
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Defendant

Catchwords:

Mother of two young boys killed in motor vehicle accident caused by negligent driving of her husband and the father of the boys - Assessment of damages for loss of dependency and loss of services - Relevance of services provided by father before death in undertaking assessment of damages

Legislation:

Fatal Accidents Act 1959 (WA)

Result:

Damages assessed

Representation:

Counsel:

First Plaintiff	:	Mr T Lampropoulos SC & Mr L E M Bayly
Second Plaintiff	:	Mr T Lampropoulos SC & Mr L E M Bayly
Defendant	:	Mr G P Bourhill SC

Solicitors:

First Plaintiff	:	Mr C Biris
Second Plaintiff	:	Mr C Biris
Defendant	:	Panetta McGrath Lawyers

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

Baker v Bolton (1808) 170 ER 1033
Biddulph v Lenegan (Unreported, WASC, Library No 990076, 19 February 1999)
De Sales v Ingrilli (2002) 212 CLR 338
Nguyen v Nguyen (1990) 169 CLR 245
NSW Insurance Ministerial Corporation (formerly GIO) v Willis (1995) 35 NSWLR 668
Ruby v Marsh (1975) 132 CLR 642
Seymour v British Paints (Australia) Pty Ltd [1967] Qd R 227
Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531
Van Gervan v Fenton (1992) 175 CLR 327
Wheat v Wisbey [2013] NSWSC 537

CURWOOD DCJ:

Introduction and overview

On 1 November 2020 Sabine Mather was killed in a motor vehicle accident near Capel. The accident was caused by the negligent driving of her husband, James Ryan Mather. She was 31. James also died in the crash. Sabine and James were survived by their two young sons, Jethro 7 and Isaac 5. At the date of their deaths Sabine worked 30 hours per week as a permanent part‑time child care worker and James worked as a boatswain.
Since the tragic event in which they became orphans, Jethro and Isaac have been cared for and raised by their maternal grandparents Elke and Steve Lunn.
Jethro and Isaac, by Elke who is their next friend, commenced these proceedings seeking damages from the Insurance Commission of Western Australia[1] (the Commission) under the Fatal Accidents Act 1959 (WA) (which I sometimes refer to as 'the Act'). The claim is for the pecuniary benefits and domestic care and assistance that Sabine would have provided them but for her death. As I will set out in greater detail, the task in assessing damages is based on a hypothetical position, being the loss of the chance of obtaining a financial benefit from the continuance…

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.

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Details

AGLC: Isaac Geoffrey Mather BY His Next Friend Elke Lunn v Insurance Commission of Western Australia [2025] WADC 78
Case: [2025] WADC 78
Decision Date: 30 OCTOBER 2025

CaseChat Overview and Summary

Isaac Geoffrey Mather, by his next friend Elke Lunn, brought a claim against the Insurance Commission of Western Australia following a motor vehicle accident that resulted in the death of Mather's mother, who was also the mother of his two young sons. The claim sought damages for the loss of dependency and services that the deceased mother would have provided. The central issue before the court was how to appropriately assess the damages for the loss of dependency and services in light of the father's role and the subsequent living arrangements of the children post the mother's death.

The court had to determine whether the damages should be assessed based on the specific services provided by the deceased before her death or by the consequences of the death to the entitled parties. This involved evaluating the unique circumstances of the case, where the father, who was also the negligent driver, continued to provide for the children but in a different capacity. The court had to balance the actual services provided by the deceased against the broader consequences of her death, including the impact on the children's living arrangements and care needs.

In reaching its decision, the court referred to the precedent set by the case of NSW Insurance Ministerial Corporation (formerly GIO) v Willis. The court recognised that damages should be assessed by reference to the injury resulting from the death to the entitled parties, rather than merely by the services provided by the deceased. The judgment emphasised that damages should account for the consequences of the death, which might sometimes exceed the evaluation of the services provided by the deceased. The court also highlighted the importance of taking into account subsequent events to avoid speculation and ensure a fair assessment of damages.

The final orders of the court were to determine the appropriate compensation for the loss of dependency and services, taking into account the broader consequences of the mother's death and the unique circumstances of the case, as informed by the principles established in Willis.

Orders

Orders of the court

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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

The case of NSW Insurance Ministerial Corporation (formerly GIO) v Willis[16] illustrates the approach courts may take in cases with unusual facts such as the present. In my view, the case of Willis demonstrates damages are assessed by reference to the injury resulting from the fact of the death to the entitled parties. Further, damages are assessed by the consequences of the death and not merely by reference to what services the deceased actually provided in the context of the living arrangements that existed at the date of death. The case also illustrates how evidence of subsequent events should be taken into account to avoid speculation when the facts themselves are known. [16] NSW Insurance Ministerial Corporation (formerly GIO) v Willis (1995) 35 NSWLR 668. In Willis, Mrs Helen Pietsch, the mother of three infant children, was killed by negligent driving. By her first marriage she had two children, Nicole and Shane who were aged 10 and 7 respectively at the date of their mother's death. Mrs Pietsch also had a third child, a daughter named Gelinda, who was aged 3 at the date of her mother's death. At the time of Mrs Pietsch's death, Mr Willis, the father of the two older children was living on a country property with his second wife and his children moved to live with him. Gelinda moved to live with her aunt and grandmother. Proceedings were brought on behalf of the three children. Judgment was entered in favour of the children for a total sum of $458,244.62. Gelinda's award was significantly higher than Nicole's and Shane's.[17] [17] Willis (670). In the course of the judgment some observations were made which inform how an assessment of damages under Lord Campbell's Act should take place. One of the judgments noted as follows:[18] Mr Leslie QC for the appellant contended that the available damages could never exceed the evaluation (at commercial rates) of the support and services rendered by the individual deceased or, as he somewhat colourfully pressed his proposition, a defendant may not be made to supply two mothers to replace one. The contention is flawed by its restriction to evaluating the services and support emanating from the deceased rather than ‑ as the statute authorises ‑ evaluation proportioned to the injury resulting from the death to the entitled parties respectively. In relatively unconventional circumstances the result of calculation may see the latter exceed the former. This is such a case and although it may be unusual there is no principle of assessment of damages which prevents an award exceeding evaluation of the total benefit provided in the way the deceased did it in fact, if reasonable replacement in the way it comes to be done after the death costs more. [18] Willis (679) (Grove A-JA). In similar terms, Sheller JA observed:[19] … Against the argument advanced in the present case by the appellant it is useful to refer to the three ways in which a personal injury may give rise to damage, identified by Windeyer J in Teubner v Humble (1963) 108 CLR 491 at 505. One was to create needs that would not otherwise exist. This is also true of the injury to a child caused by the death of a parent. For example where a single parent cared for several children of whom one suffers a disability, the death of that parent may create a need for the disabled child to be cared for separately in a special home or hospital. In my opinion, the Act enables an award of damages to be made to compensate that child for the need the parent's death has created. In the present case Mrs Pietsch's death created a need for Gelinda to be cared for separately from the other two children. Kirkham DCJ found that in the light of family circumstances there was a strong probability that his [sic] would happen if Mrs Pietsch died while her children were young. [19] Willis (676).