Isaac Geoffrey Mather BY His Next Friend Elke Lunn v Insurance Commission of Western Australia
[2025] WADC 78
•30 OCTOBER 2025
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 of the life of the deceased who is the subject of the action. This requires a determination of the monetary value of the gains that Jethro and Isaac would have obtained from Sabine if she had not died on 1 November 2020.
[1] Relying on s 7(2) of the Motor Vehicle (Third Party Insurance) Act 1943 (WA).
The Commission admits liability for James' negligence and admits that Jethro and Isaac are entitled to maintain an action and recover damages in respect of Sabine's death for the purposes of s 4 of the Act. The trial before me therefore is concerned only with the assessment of damages for Jethro and Isaac's claims for loss of dependency and loss of services.
A threshold issue: The appropriate counterfactual to assess damages
A threshold issue arises from the fact that James' negligence caused not only Sabine's death but also his own death. This raises an important question of what is the appropriate counterfactual against which the boys' loss is to be assessed?
The Commission's position
The Commission argued that the damages to be awarded could only compensate Jethro and Isaac for domestic services and financial support that Sabine would have provided in the context of a two‑parent household. With respect to domestic services, the services that James was providing at the date of death, and would have continued to provide but for his death, cannot be attributed to Sabine in a hypothetical assessment and awarded to the plaintiffs. Further, for the purposes of assessing Jethro and Isaac's claims for loss of dependency based upon Sabine's lost income, Sabine's level of personal consumption should be calculated as a percentage of household income in a two‑parent household based upon James' and Sabine's total incomes at the date they died.
The Commission's position was that any other approach would result in Jethro and Isaac receiving compensation not only for services their mother would have provided, but also for services their father would have provided. Further, it would be wrong to award any sum which compensates Jethro and Isaac for services previously provided by their father, as this would provide compensation for the loss of services provided by both parents. Rather, the Fatal Accidents Act only permits recovery of material benefits that Sabine would have provided, and compensation cannot extend to benefits that James would have provided.
Plaintiffs' position
Jethro and Isaac's position is that, but for her wrongful death, Sabine would have been their sole parent providing all care and financial support for them from 1 November 2020. Taking this approach, any care James provided before his death (about which no evidence was led), or would have provided but for his death, is irrelevant to the assessment of damages.
Loss of dependency (pecuniary benefits)
The parties agreed that the claim for loss of dependency should be calculated across three separate periods:
•Period 1: From Sabine's death (1 November 2020) until 31 January 2021.
•Period 2: From 1 February 2021 (the commencement of the 2021 school year) until the date of judgment. Periods 1 and 2 comprise the plaintiffs' past loss of pecuniary benefits.
•Period 3: Future loss of pecuniary benefits from the date of judgment until the dates when Jethro and Isaac would cease to be financially dependent on Sabine.
The parties agree that it is appropriate to use a blended rate for Period 2, such blended rate taking account of pay rises Sabine would have received for her ongoing service, rising seniority and promotions she would have obtained within the child care business that she worked for, Bayswater Child Care Association (BCCA). However, they disagree on what the appropriate blended rate should be. It is therefo3re necessary for me to reach conclusions about what Sabine's likely income would have been during Period 2 and Period 3. The calculation of the claim for loss of pecuniary benefits also requires an assessment of Sabine's personal consumption of her income. Specifically, should that be based on a single‑income household or a dual‑income household, which is directly tied to the threshold issue concerning how James' death is to be treated.
Loss of services and the boys' additional needs
Jethro, Sabine's older son, has dyslexia and learning difficulties. Isaac has ADHD (for which he takes medication, likely for the rest of his life) and associated learning difficulties. The parties differ on how, if at all, these conditions affect the calculation of the plaintiffs' loss.
The plaintiffs contend that they are likely to require more supervision than children of the same age without these conditions. Further, as they grow into adulthood, it is likely that they would require more ongoing financial and domestic support than would otherwise be the case.
The Commission's position is that to the extent that I find Jethro and Isaac have these conditions it increases the likelihood they would not pursue tertiary educations, and they would be more likely to enter the workforce at or around the age of 18 and their financial dependence on Sabine was likely to end at an earlier age.
What are the issues between the parties to be determined in order to assess damages?
By way of summary, in approaching the assessment of damages in this case, I consider the following issues need to be determined:
1.Should the damages for Sabine's wrongful death be calculated on a hypothetical assumption that from the date of her death she would be a sole parent or on the basis that that she would have been a dual parent providing services and income in a two‑parent household?
2.But for her death, what income would Sabine likely have earned from 1 November 2020 to the date of judgment? This requires an assessment of whether she would have worked full‑time hours from 2021 onwards, her likely pay increases and her likely rate of promotion at BCCA.
3.In determining Sabine's future lost earnings so as to determine Jethro and Isaac's loss of dependency, should her personal consumption factor assume a single or dual income household?
4.Do Jethro and Isaac require an extended period of financial dependency or care, supervision and domestic services due to:
(a)Jethro's dyslexia, dysgraphia and emotional dysregulation;
(b)Isaac's ADHD with associated functional impairment; and
if so, until what ages would Sabine have provided Jethro and Isaac financial support and domestic services?
5.What is a reasonable allowance for the number of hours for past care, supervision and domestic services that Sabine would have provided to Jethro and Isaac from 1 November 2020 until the date of judgment?
6.Related to issue 4, what is a reasonable allowance for the number of hours for future care, supervision and domestic services that Sabine would have provided to Jethro and Isaac from the date of these reasons?
7.Related to issue 1, should the total allowance for care, supervision and domestic services be reduced because James' negligent driving caused Sabine's death? If so, by what percentage or other method should this reduction be calculated?
8.Should the plaintiffs' damages be reduced for general contingencies?
In the next part of my reasons, I will set out the legal principles and my view of how damages should be assessed in light of issue 1. I will then set out the background facts, so far as can be determined from the evidence, and my views about how Sabine's employment and her likely income could be assessed. Next, I will turn to Jethro and Isaac's medical conditions and their living arrangements since their parents' death and how domestic services which have benefited them have been replaced since their parents' deaths. I will then deal with the parties' contentions as to the assessment of damages and the assumptions I should adopt. Finally, I will set out my calculations for Jethro and Isaac's claims for loss of dependency and loss of services.
The findings I make with respect to the calculation of Jethro and Isaac's claims for loss of dependency and loss of services I make on the basis that I am reasonably satisfied based on all the information before me that the assessment I have made is the best estimate available. In doing so, I appreciate that what I am assessing is a hypothetical situation of what would have happened if Sabine had lived, which as I will refer to below, has been referred to as a situation that puts the court in the impossible position of having to make assumptions and predictions about a future that cannot occur.[2]
[2] See [24] below.
For the reasons that follow I have calculated the damages for Jethro and Isaac's claims for loss of dependency and loss of services, subject to hearing from the parties before judgment is entered, in the sum of $2,774,947 which shall be proportioned:
•for Jethro's benefit $1,272,998.50;
•for Isaac's benefit $1,501,948.50.
The parties have agreed that upon publication of these reasons judgment should not be entered because a trustee to hold and invest Jethro and Isaac's awards has not yet been agreed between them. Further, the appointment of a trustee cannot occur until the quantum of damages is known and estimates of trustee fees can be obtained. Accordingly, as I have noted in the conclusion of my reasons, I will order the case be adjourned for 14 days after the publication of these reasons, without any orders being made, so that estimates of trustee fees can be obtained and the parties can confer as to the appropriate orders to give effect to these reasons including, if it be necessary, the correction of any arithmetical errors in my calculations so that the judgment amount entered is consistent with these reasons for decision.
Relevant legal principles
Western Australia's Fatal Accidents Act is a derivative of the Fatal Accidents Act 1846 (UK) which is commonly known as Lord Campbell's Act.[3] The legislation bears the name of Lord John Campbell who as a politician championed the law reform achieved by the legislation and who was responsible for its introduction.[4] Prior to the enactment of Lord Campbell's Act, the families of persons killed due to the negligence of another party could not claim compensation for the wrongful death. The common law position was expressed in Lord Ellenborough's ruling in Baker v Bolton[5] as follows:
In a civil Court, the death of a human being could not be complained of as an injury, ….
[3] All Australian states adopted a version of Lord Campbell's Act after it introduced the new cause of action for wrongful death into the law of England.
[4] For a comprehensive, elucidating and entertaining account of the historical background of the legislation and Lord Campbell's life see Professor Peter Handford, Lord Campbell and the Fatal Accidents Act (2013) 129 The Law Quarterly Review 420. See especially pages 423 - 424 for accounts of how Lord Campbell was remembered immediately after his death in 1861, including a description that '(he) was the triumph of mediocrity' amongst other pejorative descriptions of his character and abilities. Happily, subsequent historians and biographers when referring to his attributes as a law reformer have been much kinder than his contemporaries.
[5] Baker v Bolton (1808) 170 ER 1033.
Accordingly, the basis of the plaintiffs' cause of action is statutory. Aside from the Fatal Accidents Act no remedy would be available to the plaintiffs for the events of 1 November 2020.
Section 4(1) of the Fatal Accidents Act, which confers the right of action, relevantly provides:
Where the death of a person is caused by a wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued is liable to an action for damages, notwithstanding the death of the person injured, …
Section 6(1) provides that the action is brought for the benefit of relatives of the deceased. The term 'relative' is defined in sch 2 to include relevantly a husband or wife, father or mother, son or daughter and people in certain other specified degrees of blood relationship and any de facto partner. In this case, no controversy turns on the sole plaintiffs being Sabine's sons. Section 6(2) relevantly provides:
In every action the court may give such damages as it thinks proportioned to the injury resulting from the death to the parties respectively for whom and for whose benefit the action is brought.[6]
[6] Section 6(4) states that any damages recovered shall be divided amongst the persons for whose benefit the action was brought in such shares as the court sees fit.
The statutory cause of action conferred by the Act (and its equivalents in England and Australia) have interpreted the 'injury', for which damages are recoverable, as being the loss of the chance of obtaining a financial benefit from the continuance of the life of the deceased who is the subject of the action. The monetary value of the 'injury' occasioned by the death is the product of the loss of the expectation of material benefits, or of the reasonable prospect to material benefits, less any gains accruing from the death.[7] For this reason, the cases refer to damages for injury as being calculated on a balance of pecuniary gains and losses consequent upon the death.[8]
[7] Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531 [13] - [14], [53]; De Sales v Ingrilli (2002) 212 CLR 338 [11], [14] (Gleeson CJ); [91] - [92] (McHugh J).
[8] See for example Nguyen v Nguyen (1990) 169 CLR 245, 256 - 257 (Deane J); De Sales v Ingrilli [9] (Gleeson CJ).
As McHugh J explained in De Sales v Ingrilli:[9]
In an action under the Fatal Accidents Act, the first issue is to determine the value of the gains that the relatives would have obtained from the deceased if he or she had not died. That inquiry requires the court to determine what would have happened if the deceased had lived, a course that immediately puts the tribunal of fact into the impossible position of having to make assumptions and predictions about a future that cannot occur. Even in simple cases, the probability must be very high that the assumptions and predictions are wrong and wrong by a wide margin.
[9] De Sales v Ingrilli [95].
The damages recoverable by Jethro and Isaac are for the loss of benefits they expected to receive, dependent upon the continuation of their mother's life. This includes her direct financial support to them and the value of services it was expected she would provide to them. To calculate damages for the loss of a reasonable expectation of pecuniary benefit involves calculating a primary sum and then making such further adjustments or allowances as are necessary to produce a result that gives a true reflex of the loss.[10]
[10] De Sales v Ingrilli [13] - [14] (Gleeson CJ); Nguyen v Nguyen (257) (Deane J).
A claim for damages under Lord Campbell's Act is a claim for recompense for some tangible advantage which was then lost by reason of the death of the deceased. The claim is not related to need. For example, a relative claiming for the loss of housekeeping services by reason of the death of a deceased may have no need of those services in that the relative may be able to perform them herself or himself. Notwithstanding, if the relative has suffered the loss he or she is entitled to recover for it. It does not matter whether the relative intends to use the damages to replace the services or not.[11]
[11] Nguyen v Nguyen (262) - (264) (Dawson, Toohey & McHugh JJ).
There are, therefore, three basic principles to be applied in a claim arising from Lord Campbell's Act:
1.Pecuniary losses only: Damages are calculated for pecuniary loss only by reference to the pecuniary benefits that could reasonably have been expected from the continuance of the life of the person whose death has triggered the claim. Loss of an expected benefit is restricted to loss of direct financial support but may include the value of services the deceased would have provided around the home, or which would otherwise have supported the activities of the claimant.
2.Balancing of pecuniary gains and losses resulting from death: In setting off gains to a claimant by balancing both pecuniary gains and losses resulting from death, the savings made by the claimant in consequence of the death of the deceased must be taken into account. For example, where a claimant provided certain services to the deceased until his or her death, the fact that it is no longer necessary for the claimant to provide those services to the deceased, must be considered when assessing benefits the deceased would have conferred upon the claimant. Further, savings made by the claimant in consequence of the death of the deceased must be taken into account.
3.No requirement to establish need: A claimant's entitlement to be compensated for the loss of domestic services provided by the deceased is not dependent upon the claimant's need for such services.[12]
[12] This statement of the relevant principles is derived from Luntz H & Harder S, Assessment of Damages for Personal Injury and Death (5th ed, 2021), par 10.2.3.
The date of assessment
The loss occurs 'at the moment of death' or date of death.[13] In Nguyen v Nguyen, Deane J made reference with approval to the decision of Gibbs J, when he sat as a judge of the Supreme Court of Queensland, in Seymour v British Paints (Australia) Pty Ltd[14] where his Honour said:
The damages have to be assessed as at the date of [the wife's] death and at the date the [the husband] had lost [his wife's] services and that was a pecuniary loss because the services had a pecuniary value. Evidence of subsequent events is of course admissible to show what the facts in reality were and to render it unnecessary for the court to speculate about probabilities when the facts are known …
[13] Nguyen v Nguyen (255), (256), (263).
[14] Seymour v British Paints (Australia) Pty Ltd [1967] Qd R 227.
Dawson, Toohey and McHugh JJ also made reference with approval to a similar passage of Gibbs J (as he then was) in the decision of Ruby v Marsh[15] where he stated:
… The expectation of future benefit was destroyed by the death and no subsequent event can increase or diminish the extent of the pecuniary loss then suffered, although it is true that subsequent events may be relevant to the assessment of damages in so far as they render it unnecessary for the court to speculate about possibilities that may have existed at the date of death when the facts themselves have become known. …
[15] Ruby v Marsh (1975) 132 CLR 642, 658; see Nguyen v Nguyen (263).
Application of the principles to the unique factual circumstances of the present case
As far as I can ascertain, no authority has dealt with an assessment of damages under Lord Campbell's Act for orphaned children in circumstances where a negligent act of one parent killed both of the children's parents in one incident.
On first principle, one would expect an assessment of damages for the statutory cause of action in this case to consider the hypothetical survivor, but for the wrongful death, raising the couple's children as a sole parent, as that is the hypothetical assumption that the legislation requires.
In such circumstances, it would appear to be somewhat anomalous to take into account domestic services of the 'at fault' parent who caused both deaths. To treat services James may have provided had he survived as a 'gain which must be set off' appears inconsistent with the principle explained in [27.2] above. Similarly, it would seem to be anomalous to arbitrarily reduce the direct financial support or the value of services Sabine would have provided around the home on the basis that, for the hypothetical assessment, James would have survived and provided financial support and domestic services when he clearly could not. This appears inconsistent with the principle explained in [27.1] above.
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).
Similar observations apply in this case. A claim for damages under Lord Campbell's Act is a claim for recompense for a tangible advantage which had been lost by reason of the death of the deceased.[20] In relation to a claim for damages sustained through the death of a parent, the loss occurs 'at the moment of death'. In this case, the expectation of future benefit on the part of Isaac and Jethro was destroyed by the death of Sabine.
[20] Nguyen v Nguyen (262) ‑ (263).
James' death, to the extent it was not already evident at the immediate 'moment of (Sabine's) death', is relevant for the assessment of damages because that event renders it unnecessary for the court to speculate about possibilities that may have existed at the date of death when the facts themselves have become known.[21]
[21] Ruby v Marsh (Gibbs J).
There is a tension in comments in previously decided cases where reference has been made to damages being assessed by reference to the actual circumstances of the family as they were before the death of the provider.[22] In Nguyen v Nguyen, Brennan J observed that the entire family situation before death must be compared with the entire family situation after the death.[23]
[22] See for example De Salesv Ingrilli [186] (Callinan J).
[23] Nguyen v Nguyen (247).
A difficulty with ascertaining the 'balance of the loss' in this case is that, as a matter of reality after Sabine's death, James could not confer any benefits on Jethro and Isaac. No financial benefits have been conferred on Jethro and Isaac as a consequence of Sabine's death. Nor has James' death caused any beneficial financial benefits to flow to Jethro and Isaac.
What has occurred since Sabine's death is that through the natural love and affection of their grandparents, who have stepped in to provide domestic services and supporting income for them, the boys have been saved from extreme financial hardship and, at worst, becoming wards of the State. While it is the case that if James had survived the fatal accident, one would expect that he would have provided services (and potentially significant domestic services) to his sons. Notwithstanding, the assessment required is to determine, at the date of Sabine's death, the loss of chance of the plaintiffs obtaining a financial benefit from the continuance of the life of Sabine.
Accordingly, in the circumstances as known to the court, the continuance of the life of Sabine would have seen her providing all domestic services for her sons and all financial support for them. As I will turn to later in my reasons, I accept there would be short periods when one would expect other family members, specifically her parents, would have assisted Sabine, but that does not alter the fundamental position.
It seems anomalous that a claim by Jethro and Isaac in respect of their mother's death should be liable to abatement on account of a possibility that their father could provide domestic services to them when the reality of the situation is that there was no prospect which existed at the date of Sabine's death that that could occur. To assess damages in this way would be a strange proposition when the court is required to assess the benefit in monetary terms of the loss of the chance from the continuance of the life of Sabine. If she had lived, in the unusual circumstances of this case, she would have been a sole parent.
In De Sales v Ingrilli, Kirby J highlighted some anomalies that exist in Lord Campbell's Act claims by making these observations:
128… The law requires that 'any benefit accruing to a dependant by reason of the relevant death must be taken into account ... the balance of loss and gain to a dependant by the death must be ascertained, the position of each dependant being considered separately'. … This being so, a court must endeavour to work out the balance of financial gains and losses as best it can.
…
130... The law on the subject is full of anomalies and fine distinctions. Why, for example, should help given by a step‑parent to a child who has lost a parent be deducted in the calculation of damages under the Act, but not similar support given by a grandparent or other volunteer? Sometimes, the only apparent justification for the lines drawn by judicial decisions in this area has been that of a policy choice. The logic of several of the decisions is questionable, a fact recognised by this and other courts.
(footnotes omitted)
Determination of issue 1
In my view, the assessment of damages for the statutory cause of action takes place to compensate Jethro and Isaac for loss by reason of the wrongful death of their mother. That loss occurs at the moment of her death. The assessment has to take place on the facts that have become known at the date of Sabine's death. In this case, the fact that had become known at the date of death was that James had also died. The two boys were orphans.
The assessment of the tangible advantage which Jethro and Isaac lost by reason of the death of their mother was the loss of the pecuniary benefits and domestic services their mother would have provided to them as their parent, taking into account her primary duty to maintain her children under s 66B(1) and s 66 of the Family Law Act 1975 (Cth).
The objective of an assessment for the statutory cause of action is to assess damages by placing a financial value on the pecuniary benefit that Isaac and Jethro could reasonably have been expected to receive by the continuance of the life of their mother. That requires an assessment of what benefits Sabine would have brought to the family, in this case to Jethro and Isaac, in the form of income and the provision of services.[24]
[24] Such calculation being for a financial sum of the benefits Sabine would have brought to her sons being conducted on a basis of pecuniary gains and losses consequent upon the death: See for example, De Sales v Ingrilli [11] - [12] (Gleeson CJ).
It is difficult to see a rationale for trying to ascertain in the short period of her sons' lives what domestic services their father provided to them and to then extrapolate those services over the entire period of their adolescence and early adulthood as a means of mitigating damages for the loss of the services their mother would have provided to them for that entire period of their childhood (and early adulthood), had she survived the wrongful act of their father as the tortfeasor.
Such a construction, in my respectful view, would give rise to what Kirby J referred to in De Sales v Ingrilli as an anomaly and fine distinction, the only apparent justification for which would be of a policy choice.
Accordingly, I determine that damages for Sabine's wrongful death should be calculated on the basis that from the date of her death she would have been a sole parent, providing all financial support and domestic services to Jethro and Isaac. This conclusion resolves issues 1 and 7.
No evidence was led as to Sabine's performance of domestic services
Having determined that damages should be assessed on the basis that Sabine would have been a sole parent from the date of her death, I now turn to the evidence led at trial and the methodology for calculating the quantum of the lost benefits that would have been provided by Sabine to Jethro and Isaac.
The plaintiffs did not adduce any evidence of the domestic care and assistance that either of their parents provided to them prior to 1 November 2020. Accordingly, I am unable to make any findings about how domestic tasks were performed by Sabine and James in the family home before their deaths or the division of responsibilities between them. I approach the assessment of domestic care and assistance services without this baseline evidence. What is known is that on the weekend of the fatal crash, Jethro and Isaac were staying with their grandparents and being looked after by them.
What was the evidence that was led at trial?
The plaintiffs led evidence at the trial from two witnesses, Elke Lunn, Jethro and Isaac's grandmother and primary carer, and Dr Jane Steele a qualified specialist paediatrician. The Commission did not call any witnesses to give evidence.
The plaintiffs prepared a trial bundle containing a number of reports prepared by Dr Steele, reports from the boys' school psychologists, various school reports and school results, and correspondence to Elke from Jethro and Isaac's teachers. The plaintiffs' trial bundle also contained a number of Sabine's tax returns, pay slips and other employment records as well as pay rates, enterprise agreement and award classification comparison documents for the pay rates from BCCA and the relevant award.
The Commission did not object to any documents in the plaintiffs' bundle and I accepted the bundle as Exhibit 1. The Commission also tendered a bundle of tax returns and financial documents for James and Sabine which I received as Exhibit 2. The documents in Exhibit 2 included Sabine's 2021 tax return which was filed after her death and which disclosed the income of her spouse, James for the four month period 1 July 2020 to 31 October 2020 was $30,316 gross.[25] I also received a document of hourly pay rates at the BCCA as of 2 December 2024 entitled 'BCCA Argument and Award Classification Comparison' as Exhibit 3. One difficulty which arises in the assessment of Sabine's lost income is that the hourly pay rates of the BCCA award are not complete for all positions for the years 2022, 2023 and part of 2024. Nevertheless, I was able to take a broad brush approach to Sabine's likely income which I explain in [144] ‑ [146] below.
[25] Although the tax returns form part of the Exhibit 2, no evidence was led about what James' occupation was or any of his employment history. The Commission relied upon James' income for the purposes of the calculation of Sabine's personal consumption.
Sabine and her family - Sabine's background and her family relationships
Like many people in modern Australia, Sabine was the daughter of migrants. Her mother Elke (born 3 September 1960) and father, Steve (born 29 February 1960) were originally from Germany. At the date of the trial they had been married for over 37 years. They live in inner suburban Perth. Jethro and Isaac have lived with Elke and Steve since the death of their parents. Elke has been their primary caregiver.
Elke and Steve emigrated to Australia when they were each about 24 years of age. Sabine was born on 3 August 1989 and her brother, Daniel, was born in 1991. When Sabine was in primary school the family lived in Papua New Guinea. In 2000 the family returned to live in Perth.
Sabine attended high school at Chisholm College and completed Year 12 in 2006. She commenced studying at university, initially accounting and later teaching, but she did not complete an undergraduate degree.
In 2008 or 2009 Sabine met her future husband, James. According to her mother, the relationship affected her studies as James was a seaman who worked away but when he was in Perth, Sabine did not attend university. Elke said that 'love was more important than studying at that age' for Sabine. Sabine eventually deferred her studies and worked on a short‑term basis as a receptionist in several jobs.
On 16 July 2012 Sabine commenced working in the 'long day care' part of BCCA's Salisbury Child Care Centre business. This part of the business catered to children under kindergarten age. Sabine was then 22 years old. She subsequently obtained qualifications in child care including a Certificate III diploma in child care. Sabine was working at the same day care centre as a team leader at the date of her death.
Bayswater Child Care Association - Sabine and Elke's employer
Bayswater Child Care Association is a not‑for‑profit organisation that conducts three day care centres, Silverwood Child Care Centre (Silverwood) in Morley, Noranda Child Care Centre in Noranda and Salisbury Child Care Centre (Salisbury) in Bedford. At the date of trial, Elke had worked for BCCA for 17 years and was employed as the manager of the long day care operations of BCCA's three day care centres.
Each day care centre provides a service to working parents who need child care while they are working. BCCA also provides other child care services at each centre including before and after school care and vacation care. By 'long day care', Elke explained that each of the centres provides an educational program plus child care for children on weekdays from 7.15 am (Silverwood) or 7.30 am (Noranda and Salisbury) until 6.00 pm.
Elke said in evidence that lower‑middle income families receive child care subsidies. A government benefit pays part of the centre's fee leaving a 'gap' which is payable by the child's parent or guardian to the centre. One of the benefits of employment for BCCA staff is that if they require any child care services for their own children, the centre gives a discounted price which would be 50% of any gap fee.
Employment terms and pay rates
BCCA employees are subject to an enterprise bargaining agreement which is negotiated every five years. The next enterprise bargaining period was due to commence by July 2025. BCCA's enterprise bargaining agreement rates of pay are higher than the child care award with the result being that BCCA pays its employees at a higher rate compared with child care centres which pay the Children's Services Award.
BCCA's full‑time employees work 76 hours per fortnight (or 38 hours per week) and have four weeks of holidays and 76 hours (or two weeks) of special leave. This additional special leave is provided to employees in consideration of staff members undertaking workplace training or staff meetings after hours. Staff members also have available to them 10 days of annual sick leave.
Employment positions and promotional opportunities available at Bayswater Child Care Association
The senior employment position at each of BCCA's day care centres is a position called 'Centre Coordinator'. Each centre has three 'team leader' positions. Sabine occupied a team leader position at Salisbury at the date of her death. Two or more other child care workers work under each team leader to support the team leader.
The plaintiffs tendered in evidence an extract of BCCA's pay rates.[26] The plaintiffs also tendered schedules of pay rates for BCCA's various employment positions for the years 2021 until the date of trial. The latest document was prepared in December 2024.[27]
[26] Exhibit 3.
[27] Exhibit 1, plaintiffs' trial bundle, page 244.
At the time of her death, Sabine's team leader position was categorised as a Level 4A position on the BCCA pay scale. A team leader children's services educator holding a diploma qualification had three levels of payment rates: Level 4A (which Sabine held at the date of her death), Level 4B, and Level 4C. The position of Centre Coordinator also had three pay rates: Levels A, B and C.
Elke's unchallenged evidence was that, subject to an annual work performance review, there is an automatic graduation from Level 4A to Level 4B and Level 4C respectively. The same observations apply to levels of payment rates for other positions including Centre Coordinator. Unless an employee suffers an adverse performance review, there is an automatic graduation from Level A to Level B and Level C on an annual basis.
Accordingly, in 2021 Sabine would have been paid as a Level 4B team leader. On a full‑time basis Sabine would have been paid $1,216.38 gross per week/$979.38 net per week.
Evidence of promotional opportunities
In her evidence, Elke described her promotion within BCCA's business. She described how she originally started working for BCCA as the team leader in the 'kindy room', which was the job Sabine was performing at the date of her death. She started at Silverwood. In her evidence she said she 'just climbed up' from there.
After a year as a team leader in the kindy room, Elke was promoted to be the Centre Coordinator at Silverwood. She was then promoted to the role of an assistant manager for BCCA and, later, to her current role as the manager of the long day care aspect of the business. She has been an assistant manager or manager for over eight years.
Elke's duties as manager of BCCA's long day care include going to each of the three centres to deal with issues that arise with staff, any complaints from parents and regulatory compliance for the business. She sits in on staff interviews and is involved in decision‑making, with others, as to the employment of staff. She evaluates pay rises and co‑signs wages for employees each fortnight and, from the nature of her role, manages the long day care aspect of the three centres.
Elke's evidence was that since the accident, four Centre Coordinators have left BCCA. Two of the Centre Coordinators that left were based in Noranda. BCCA had difficulties in filling each of those vacancies with a suitable applicant as they arose. One of those opportunities arose in 2021, another in 2022. Additionally, two further vacancies arose in 2023, at Silverwood and at Salisbury, where Sabine had previously worked.[28]
[28] ts 41.
Elke and BCCA's chief executive officer interview candidates for Centre Coordinator positions.
Elke described Sabine's prospects of promotion within BCCA to a Centre Coordinator's role by saying 'the possibility' was 'quite high' for her to actually get that job (the Centre Coordinator position) 'especially when we had difficulties to find somebody suitable'.[29] In her evidence, Elke also described an instance at BCCA where a daughter was promoted to the managerial position her mother held.
[29] ts 41.
Assessment of Sabine's career trajectory
To assess the plaintiffs' claim for loss of pecuniary benefits, I must determine two issues:[30] First, whether Sabine would have commenced full‑time employment from 1 February 2021; and second, whether she would have received promotions within BCCA. In making these assessments, I accept that they are based to a degree on speculation, but I outline below the evidence upon which I consider those facts can be assumed for the purposes of the assessment of Sabine's likely promotion in the business.
[30] Aside from the issue of Sabine's level of personal consumption which I turn to later in these reasons.
Would Sabine have worked full-time hours from 1 February 2021?
At the time of her death, Sabine was working 60 hours a fortnight. Elke's unchallenged evidence was that Sabine told her shortly before her death that she wanted to go full‑time at the beginning of the next school year. Elke also confirmed that Sabine had made a request to the Salisbury coordinator and the coordinator was happy to agree or make that possible. Elke also said that the general practice of BCCA's business was that staff would move to the 'next room' each year because as the children grew up there was a need for continuity of care. The request for full‑time work also facilitated the change in care of the children Sabine had been working with.
The Commission did not dispute the evidence that Sabine had made a request to her coordinator that she wanted to go to full‑time hours. I find that Sabine would have commenced working full‑time hours from 1 February 2021 (38 hours per week or 76 hours per fortnight) from 1 February 2021. I am comfortably satisfied that Sabine would have worked full‑time in BCCA's Salisbury Child Care Centre (or one of BCCA's other centres) from that date.
Promotion to Centre Coordinator
Elke gave evidence about the structure of BCCA's business, BCCA's enterprise bargaining arrangements, and the scope for promotions within the business. She spoke of her own promotion from the position she was occupying when she first joined the business, which was the same as Sabine's. She spoke about her rise through the business to the position of manager of long day care. I accept Elke's evidence in this respect (and her evidence generally) as being honest, truthful and reliable.
Notwithstanding that Elke is Sabine's mother and herself acknowledged that she had a view of her daughter by virtue of that relationship, she said that Sabine was very passionate about the children in her care, was a good mother, responsible and reliable, and that those attributes were what the business was looking for in employees. Her evidence was that BCCA sought out motivated people who were responsible, reliable and had a good rapport with children.[31] She described her daughter as being passionate and well respected within the organisation.
[31] See generally ts 42.
On the evidence available, I consider there was a strong probability that Sabine would have been promoted within the business to the position of Centre Coordinator, likely in 2022, but possibly as early as 2021 or as late as 2023, given the availability of positions and her respect within the business. I outline my conclusions as to Sabine's promotions within BCCA in [136] and [144] below.
Sabine's children
Jethro
Jethro was born on 2 February 2013. Jethro is Sabine's older son. At the time of trial, he had just turned 12 years of age and was attending his first year at high school, Year 7 at Chisholm College.
Jethro was 7 years and 9 months when his parents died. Since their death he has lived with his grandparents, Elke and Steve Lunn. After his parents' death he attended Hillcrest Primary School. It is intended that he will remain at Chisholm College until he finishes school.
Jethro has been diagnosed with dyslexia and dysgraphia. He has been in a special needs program and has had regular tutoring in his time living with his grandparents. He has had behavioural issues at school, and although he had delays in his reading ability, he can read now but spelling is still an issue for him.[32] He engages on occasions in aggressive and defiant behaviour.[33] For some years he has been under the supervision of Dr Steele, a paediatrician.
[32] ts 46.
[33] ts 48.
Dr Steele, a qualified specialist paediatrician gave evidence with respect to both Jethro and Isaac's medical conditions. She first met with Jethro on 6 October 2021.
Dr Steele prepared a report on 26 October 2021 that stated that multiple members of Jethro's family had been diagnosed with ADHD[34] including his father and maternal uncle, Daniel. With respect to the diagnosis of emotional dysregulation, Dr Steele referred to that condition as a symptom that is often seen in children with ADHD where they find it difficult to contain their emotions, feel criticism more strongly than other children and find it difficult to control what comes with those emotions. Having said that, Dr Steele confirmed that she had not diagnosed Jethro with ADHD.
[34] Attention deficit hyperactivity disorder.
Dr Steele was taken to further reports of 20 July 2022 and 14 March 2023. With respect to the diagnosis of emotional dysregulation as against ADHD, Dr Steele said that emotional dysregulation is seen more commonly in children with ADHD but it was also seen in neurotypical or 'normal' children. Dr Steele said that her experience is that children who feel things strongly continue to be adults who feel things strongly. Into adulthood, some manage their emotions more readily and it is very difficult at Jethro's age to predict the future possible progress of his condition.
Dr Steele's most recent review of Jethro was on 9 April 2024 and at the time of that report she stated that he was currently going well and there were no significant concerns. During her evidence at trial, Dr Steele clarified that position to say that she had had a recent phone call from Elke about concerns that had been raised since he started high school, and she would be seeing him again. When cross‑examined about testing for ADHD, she said that with Jethro she had undertaken two assessments, and he was borderline but 'didn't quite meet criteria'.
Dr Steele was asked a question about the inevitability of a person having ADHD having difficulties with employment and she answered, 'not in every single person with ADHD'.
Isaac
Isaac was born on 18 March 2015. At the date of his parents' death Isaac was 5 years of age. At the date of trial, he was 9 years of age, about to turn 10.
Elke described Isaac as having difficulty reading and writing, struggling with maths at school, and requiring tutoring. He has been diagnosed with ADHD and is taking medication for his ADHD. He is easily distracted, often forgetful [35] and has a short attention span.
[35] ts 50.
Dr Steele confirmed that Isaac had been diagnosed with ADHD, dyslexia and dysgraphia. She described these conditions as follows:
1.Dyslexia is a specific learning disorder whereby a person suffering from it has difficulty reading and processing academic information and learning from it and that such condition is not curable and is a lifelong condition. Further, it is extremely difficult to predict in each individual how it may progress over his or her lifetime.
2.Dysgraphia is a specific learning disorder of written expression whereby a child struggles with understanding instructions and being able to express them in written form. Similarly to dyslexia, that condition is not curable but manageable in most children over time.
3.ADHD is a neuro developmental condition where children who are diagnosed with the disorder have difficulty maintaining focus, difficulties with hyperactive behaviour and impulsivity.
Dr Steele said that Isaac had a combined sub-type of ADHD where he has significant difficulties with attention and focus and also with hyperactive and impulsive behaviour. This is a life‑long condition that is managed with medication.
Dr Steele first saw Isaac on 29 September 2021 and has generally seen him every six months since then. A number of reports of Dr Steele form part of Exhibit 1. From the reports, Isaac has been taking Ritalin LA for some time. In a report of 15 February 2023, it was recorded that the Ritalin was working well to help Isaac stay on task and control his hyperactive behaviour, but late afternoon homework was becoming 'tricky' as the effects of Ritalin had worn off by then.
Additional medication was prescribed being methylphenidate hydrochloride which was administered just before lunch. Prescribing medication was described as having been somewhat difficult because Isaac has had difficulties in being under weight. The most recent report of September 2024 confirms Isaac's current problems as being ADHD, developmental trauma, specific learning disorder in reading, and specific learning disorder in written expression.
At the time of the trial, Isaac was being treated with Ritalin LA 20 mg in the morning and Ritalin IR 5 mg at lunchtime and also different medication in the early evening, guanfacine.
Dr Steele described assessing and reassessing individuals generally every six months to address and reassess medication and see how patients are going from an academic and behavioural point of view.[36] She described that where individuals cease taking medication, the ADHD features will re‑emerge, specifically hyperactivity and impulsivity. Her opinion was, as I have noted, that it was likely that Isaac would retain the need for medication to adulthood.
[36] ts 80.
Dr Steele said in her evidence that repercussions can be significant for children, adolescents and adults with ADHD if the condition is not managed appropriately and it is more difficult for sufferers to hold down a job because of their disorganisation, time management skills and the way they communicate. They can be loud and talk a lot which a number of people in the community do not have an understanding about.[37]
[37] ts 83.
In cross‑examination Dr Steele referred to the history presented to her by Elke was consistent with respect to Isaac[38] with her having to spend more time that would otherwise be expected in looking after a child because of the condition of ADHD. Further, it was not inevitable that ADHD will cause a problem with employment with every single person with ADHD.
[38] ts 84.
Jethro and Isaac's living arrangements since their parents' death
Elke gave evidence of a typical week in the lives of Jethro and Isaac as at November 2022.[39] In summary, both boys get up at around 7.00 am each school day. Elke drives them to school and walks them to their classroom commencing at 8.20 am. She then drives to work, finishing at 3.45 pm. After work Elke picks the boys up from out‑of‑school care and they arrive home at 4.15 pm. She then prepares snacks for the boys, supervises their homework, allows free play while she prepares dinner, pre‑packs lunches, and lays out uniforms for the next day. At 6.00 pm the family eats dinner together. At 7.00 pm there is a late snack and at 7.45 pm Isaac takes his medication and is permitted some play time on Xbox. At 8.00 pm Isaac goes to bed and Jethro's bedtime is around 8.45 pm. She would read to the boys one to one. For each weekday the routine is similar.
[39] Plaintiffs' trial bundle (Exhibit 1), pages 230 ‑ 234.
On Saturdays, both boys would attend lessons at Leederville, being described as 'intervention', Isaac for 45 minutes from 8.30 am and Jethro for one hour from 9.15 am. They then have a tutor who provides feedback to Elke before leaving after 10.30 am. For the rest of the Saturday there is no set routine, but the family tries to organise fun activities including encouraging play dates with friends, meeting up with cousins, going swimming, going to skate or BMX parks, movies or shopping. On Sundays everyone gets up a bit later and Steve takes the boys out so that Elke can have some time to herself. Meals and bedtimes remain the same on weekends.
Elke's working hours were less than full‑time. She worked Monday, Wednesday and Friday 8.45 am to 3.45 pm and Tuesdays and Thursdays 8.45 am to 2.45 pm.
During school holidays Jethro and Isaac would attend vocational care, and Elke would try to take some days off to arrange fun activities.
Effect of Jethro and Isaac's learning difficulties
An issue in assessing damages for loss of pecuniary benefits and services is determining when Jethro and Isaac would cease to be financially dependent on Sabine and would no longer require her domestic services. This requires an assessment of how their medical conditions and learning difficulties would affect their education, workforce participation, and capacity to live independently.
While in some cases, financial dependency might cease at age 18, in other cases financial independence on the part of a young adult may take a much longer period. In case law for family provision matters reference is often made to what a community expectation is with respect to a moral obligation of a parent towards an adult child. It is commonly said that ordinarily, the community expects parents to raise, and educate their children to the very best of their ability while they remain children, probably to assist them with a tertiary education, where that is feasible and, where funds allow, to provide them with a start in life such as a deposit on a home although it might well take a different form.[40] So called 'community expectation' in a wider sense in the Australian community is very diverse.
[40] See for example Wheat v Wisbey[2013] NSWSC 537 [128].
The days when young adults became financially independent a short time after leaving secondary school appear much more infrequent than they were, even several decades ago. Many young adults, upon leaving secondary school, pursue tertiary education. Tertiary education commonly takes students until ages 21 ‑ 22 to complete. Some young adults pursue employment immediately after finishing secondary school, some go through TAFE and other vocational training pipelines to achieve permanent employment. It is not uncommon for young adults to be financially dependent on their parents in the age bracket of 18 ‑ 22 years of age. When looking at Sabine's transition to employment, she studied for a period, had some short‑term receptionist jobs and then started working in child care when she was 22. In this case, the evidence points to neither Jethro's nor Isaac's circumstances as being typical when compared to children their age. It appears to me that their conditions will potentially affect their educational progress and delay their transition to permanent employment.
In determining a period of dependency, I must assess what benefits Sabine would reasonably have been expected to provide to her sons had she lived. This is not limited to a bare minimum standard but extends to what a reasonable parent in Sabine's position would provide, taking into account the particular needs and circumstances of her children.
As I have said, modern Australian experience shows that many young adults remain partially dependent on their parents well into their 20s, particularly while completing tertiary education, vocational training and establishing themselves in the workforce. Young adults continue to live at home with a parent (or parents) longer than they once did. Property rental options are more expensive and less plentiful than was once the case. So much is obvious to all members of the community. Where children have additional needs that may affect their educational outcomes, or outcomes in obtaining permanent employment, it is reasonable to assume a period of dependency (full and partial) would extend further, than the completion of secondary education.
The Commission's submission on past and future loss of care, supervision and services benefits was, in substance, as follows:
1.From the date of Sabine's death to the date of delivery of reasons a reasonable allowance for the provision of care, supervision and services benefits to Jethro and Isaac that would have been performed by Sabine would equate to 6 hours per day or 42 hours a week.[49]
2.With respect to future loss of care, supervision and services:
(a)Sabine would provide care, supervision and services for a total of 42 hours per week for both of the boys until they turned 15. As I understood the submission, these hours would not include any of the time that Jethro and Isaac was sleeping overnight.
(b)From the ages of 15 - 18 a 50% reduction should be made to account for the likelihood that Jethro and Isaac will be working part‑time jobs, contributing to household chores (including dishes, cleaning and landscaping) and generally living more independently without requiring constant supervision in waking hours.
(c)From the age of 18 it is unlikely that Sabine would have provided any care, supervision or services in circumstances where both Jethro and Isaac were likely to be working full‑time, driving independently and may have entered into relationships and would likely be providing services themselves to assist Sabine while living at home. It was, however, acknowledged by senior counsel for the Commission that the plaintiffs may still be living at home after the age of 18 and that Sabine for example, 'might be cooking dinner for them' but otherwise services would drop off completely after the boys turned 18 respectively.
[49] Defendant's amended schedule of damages filed 28 February 2025, par 47.
In calculating Jethro and Isaac's future losses of care, supervision and services benefits, I consider it is appropriate to make that calculation over four distinct periods:
1.Period 1 being the period from the date of delivery of these reasons until the date Jethro turns 15 being 2 February 2028.
2.Period 2 being the period from 3 February 2028 until Jethro turns 18 being 2 February 2031.
3.Period 3 being the period from 3 February 2032 until the date Isaac turns 18 being 18 March 2033.
4.Period 4 being distinct periods from when Jethro and Isaac each turn 18 until a time when Sabine would no longer provide domestic services for their benefit. In Jethro's case likely in his early 20s but, as I will turn to, in Isaac's case probably up to age 25. However, over the age of 18 I consider that domestic services would decrease in frequency and the number of hours Sabine would spend.
Protective supervision during sleeping hours
As I have noted, the parties had different views of whether compensation should be allowed for the hours when the boys would be sleeping.
But for the fatal accident, Jethro and Isaac would have received the benefit of parental care, supervision and services from Sabine at all times, or the vast majority of times, they were not at school. This includes times when they would be sleeping.
Jethro and Isaac, being young children, could not be left alone and someone had to be available to attend to their needs if they arose. This type of passive care is a form of service, and the value of such care is compensable. In the High Court decision of Van Gervan v Fenton[50] Deane and Dawson JJ described such care (in the different context of gratuitous services) as 'protective attention' and noted that constant care and attention constitutes the provision of services.
[50] Van Gervan v Fenton (1992) 175 CLR 327.
I consider that protective supervision is a form of domestic service recoverable within the terms of the Act. So much so was seemingly recognised by the calculation of loss in Biddulph.
For the reasons already given, I do not accept the Commission's submission that sleeping hours or 'protective attention' should be excluded from an assessment on the basis that James would have provided those services or care jointly as part of a two‑parent household with Sabine or on any other basis.
Domestic and supervision services date of death to date of trial
At the date of the death of their parents Jethro was 7 and Isaac was 5. At the date of the delivery of these reasons for decision Jethro is now 12 and Isaac is 10. Clearly from the date of Sabine's death to the date of these reasons the boys were (and are) of such a tender age that they required (and continue to require) supervision and domestic services and assistance. It was not contended otherwise by the Commission.
A starting point for calculating loss of services, as suggested by the plaintiffs, is to determine the total number of hours in a week (168 hours) and then deduct the hours when Sabine would not have been providing domestic services, care and attention (including 'protective attention') for the benefit of the boys. I accept Elke's evidence as being honest, accurate, reliable and truthful, and I accept her description of the care services that she and Steve have provided to Jethro and Isaac since Sabine's death based primarily on the schedule Elke prepared in 2022. This evidence informs my assessment of what services Sabine would have provided. I also accept the Commission's assessment that 42 hours of direct services by Sabine is a reasonable estimate of the time that Sabine would spend providing care, supervision and services for the benefit of Jethro and Isaac (but as I have explained, that would not include the hours that the boys would be sleeping).
For the period from Sabine's death to the date of these reasons, I make the following findings about the hours when Sabine would not have been providing domestic services:
1.School hours and after-school care: There is approximately 200 school days per year in Western Australia. Sabine would have worked full‑time from February 2021, and as an employee of BCCA, she would have had access to after-school care and holiday care. The time from drop-off to pick-up, including use of after-school care to facilitate her full-time work, would be approximately 8½ hours per school day (including mandatory breaks). This equates to 40 hours approximately per week on average over the year.
2.Time with family, friends and activities: If Sabine had survived, she would reasonably have relied on her parents (the boys' grandparents) to assist in raising the boys. The evidence shows that on the weekend of the fatal accident, the boys were being cared for by their grandparents. I consider it reasonable that the boys would spend time with grandparents, other family members, and friends, and would participate in supervised sporting activities including training. A reasonable allowance is 10 hours per week.
3.School holiday programs: There are approximately 60 weekdays of school holidays per year (6 weeks summer, 2 weeks in April, 2 weeks in July, 2 weeks in September/October). As a sole parent working full-time, Sabine would likely have utilised vacation care programs at BCCA. I consider a reasonable estimate of Sabine's use of vacation care programs would be 30 days per year to cover times when she would be working herself, but also potential periods when she may not be working but the boys would benefit from being engaged in other activities. At 7.5 hours per day, this equates to 225 hours per year or 4.33 hours per week (rounded to 4.5 hours per week for calculation purposes).
Based upon these assumptions the total hours when Sabine would reasonably have been providing domestic services and supervision to both boys together equates to 111 hours per week calculated as follows:
Description
Number of hours per week
Total hours
168
Less time Sabine was not providing domestic services
School hours/after school care and time that Sabine was working
42.5
Time Jethro and Isaac likely spend with other family members including their grandparents, friends or sporting activities supervised by other adults but not Sabine
10
Vocational/holiday programs
4.5
Sub total
57 hours
Total time Sabine provided services to children
111 hours
I consider 111 hours per week to be the appropriate baseline figure for a calculation of lost domestic services for the period from Sabine's death to the date of the publication of these reasons. This figure represents the hours Sabine would have been providing domestic services, including both active care and protective supervision, to both boys together. Given that the boys lived together as a family unit and much of the care would have been provided to them jointly, it is appropriate to calculate the total hours for both boys together and then allocate the allowance equally between them. If an assumption is made of the average number of hours the boys were sleeping, the figure of 111 hours is also broadly consistent with the Commission's submission of 42 hours per week of direct services being provided by Sabine.
Returning to the weekly figure of 111 hours per week, my calculation of the loss of Sabine's past services is as follows:
111 hours per week x $35 $3,885.00 $3,885 x 259 weeks $1,006,215.00 Less contingencies of 5% ($50,310.75) Sub-total $955,904.25 Interest $955,904.25 x 3% x 4.97 years $142,525.32 Total (including interest - $1,098,429.57), round to $1,098,430.00
It is appropriate to divide that award, including interest, equally between Jethro and Isaac. Accordingly, for the loss of Sabine's past services including interest to the date of publication of these reasons I calculate that Jethro and Isaac are each entitled to a sum $549,215.
Future domestic and supervision services
Period 1: Until Jethro turns 15 (date of reasons - 2 February 2028)
Between the date of these reasons and 2 February 2028, I consider that the number of hours required for the domestic care and attention for both children will be commenced at a number of hours similar to the figure in [182] above. It is reasonable to assume that the likely number of hours that Sabine would have provided care, supervision and services to each of the boys until they turn 15 would be a total of 42 hours per week and which would include the time spent in waking hours. When combined with the hours for when the boys would be expected to be asleep, in the period to 2 February 2028, I would calculate that to be a further amount of around 63 hours. Combined with the sum of approximately 42 hours in direct services that would see a slight drop over the hours from the time of death. Accordingly, an appropriate calculation for this period is 105 hours per week. The calculation in this respect is as follows:
105 hours per week x $35
$3,675.00
Appropriate multiplier
111.2
Calculation: $3,675 × 111.2
$408,660.00
(minus 5% for contingencies)
($20,433.00)
Loss for period to 2 February 2028
$388,227.00
In my opinion it is appropriate to apportion this sum equally, being:
(a)Jethro: $194,113.50; and
(b)Isaac: $194,113.50.
Period 2: Date Jethro turning 15 until turning 18 (3 February 2028 - 2 February 2031)
I consider that a reasonable age to cease any allowance for overnight domestic supervision services (namely, a time when the boys are sleeping but require supervision in the form of 'protective supervision') is until they turn 18 respectively. In the period from Jethro turning 15 until turning 18 it is reasonable to assume that, at least in Jethro's case, he will be able to achieve more independence in these years. During this period, I consider Isaac will progressively achieve more independence as well. At the time Jethro turns 18, Isaac will be about to turn 16. Consequently, it is reasonable to assume that the number of hours provided in domestic and supervision services may would reduce. In my view, an appropriate weekly figure during this period for the care, supervision (including overnight supervision) and domestic services that Sabine would have provided would equate to 85 hours per week.
The calculation in this respect is as follows:
85 hours per week x $35
$2,975.00
Appropriate multiplier
125.8
Calculation: $2,975× 125.8
$374,255.00
(minus 5% for contingencies)
($18,712.75)
Loss for period from 2 February 2028 to 2 February 2031
$355,542.25
Say
$355,540.00
In my opinion it is appropriate to apportion this sum equally, being
(a)Jethro: $177,770; and
(b)Isaac: $177,770.
Period 3: Date Isaac turning 18 (from 3 February 2031 to 18 March 2033)
After Jethro turns 18 and until Isaac turns 18, overnight supervision services would only be required for Isaac. As I have already outlined, I consider a reasonable time for each of the boys to cease being awarded any overnight supervision services is when they attain the age of 18. In the period of time from February 2030 until Isaac turns 18 on 18 March 2033, I consider that both Jethro and Isaac will be progressively more independent and at the date that Isaac turns 18, Jethro would already be 20 years of age. As I will shortly turn to, I consider it is reasonable that Sabine would continue to provide some level of domestic services to both of her sons after they had turned 18.
With respect to Isaac, I consider a reasonable allowance for the care, domestic and supervision services that Sabine would have provided to Isaac[51] during the period of time from 3 February 2031 to 18 March 2033 equates to 67 hours a week, being 12 hours per week in provision of care, supervision and services to Isaac during 'waking hours', noting that during waking hours the need for supervision would be reducing and it is reasonable to assume that each of the boys would have a greater level of independence. However, night‑time supervision would still be required in this period for Isaac. I consider a reasonable weekly allowance of, say, 67 hours, calculated taking into account an appropriate deferred multiplier, is as follows:
[51] I have separately calculated the services Sabine would have provided to Jethro during the period 3 February 2030 to 18 March 2033 as part of a global assessment of services to Jethro after he had turned 18 in the next part of my reasons.
67 hours per week x $35 $2,345.00 Appropriate multiplier 76.4 Calculation: $2,345 × 76.4 $179,158.00 (minus 5% for contingencies) ($8,957.90) Loss for Isaac from 3 February 2031 to 18 March 2033 $170,200.10 Say $170,200.00
With respect to calculating a reasonable number of hours for the provision of domestic services for the period from when the boys each turn 15 until the age of 18, I have accepted the submissions of the Commission that in that period of time from when the boys each turn 15 until the age of 18, a reasonable level of hours for the provision of domestic services would be around 21 hours per week for the benefit of both boys. The Commission also submitted that no allowance for domestic services should be made for either Jethro or Isaac once they turn 18. I have not accepted this part of the Commission's submissions.
Period 4: After Jethro and Isaac turn 18
For the periods after the age of 18 I propose to assess lump sums for each of Jethro and Isaac. I consider that for the periods from when both Jethro and Isaac turn 18, it seems probable that they would remain living at home. The number of services reasonably expected to be provided by Sabine would be lower and more infrequent as the plaintiffs get older and after they turn 18. However, for the reasons I have outlined when discussing the boys' medical conditions, I consider it probable that Sabine would continue to provide domestic assistance and services to both of her sons into their early 20s.
I consider that Sabine would be likely to provide more services to Isaac than Jethro after the age of 18. For domestic services for Jethro after he turns 18, I will make a further total allowance of $25,000. For the period from when Isaac turns 18, I consider Sabine would be likely to provide more ongoing care and assistance services to Isaac and for a longer period of time than for Jethro given his medical conditions. I consider a reasonable lump sum allowance for Isaac for domestic care and assistance services after the age of 18 is $45,000.
As I have said, I have reduced the calculation of all future losses by 5% for contingencies to account for the inherent uncertainties in long‑term assessments, including the possibilities that the boys may achieve greater independence than anticipated, that Sabine may have had periods when she was unable to provide services, or that circumstances may have changed in ways that cannot be predicted.
Summary of my calculations
By way of summary, my assessment of the calculation of the total damages for Jethro and Isaac is as follows:
1.
Past Loss of Pecuniary (including interest)
$272,600.00
(a) Jethro: $136,300; and
(b) Isaac: $136,3002.
Future Loss of Pecuniary
$419,950.00
(a) Jethro: $190,600; and
(b) Isaac: $229,3503.
Past Loss of Care, Supervision and Services (including interest):
$1,098,430.00
(a) Jethro: $549,215; and
(b) Isaac: $549,2154.
Future Loss of Care, Supervision and Services
$983,967.00
(a) Jethro: $396,883.50; and
(b) Isaac: $587,083.50TOTAL:
$2,774,947.00
(a) Jethro: $1,272,998.50; and
(b) Isaac: $1,501,948.50
Appropriate orders to be made
The parties have agreed that upon publication of these reasons for decision, I should not enter judgment for a period of at least 14 days so as to enable the appointment of an appropriate trustee. The reason for this is so that reasonable trustee fees may be added to the amounts calculated by way of damages. It is appropriate to defer entry of judgment, as the sums of money to which Jethro and Isaac are entitled to need to be held on trust for their benefit until they reach the age of 18. Further, there may need to be minor adjustments to the figures I have calculated to take into account the period from the delivery of these reasons to the date when judgment is ultimately entered including as to interest. Accordingly, I make the following orders:
1.The proceedings be adjourned to 9.15 am on 12 November 2025 for the entry of judgment and the making of formal orders consistent with these reasons for decision.
2.The parties confer and file a minute of agreed orders, or absent agreement separate minutes of orders, to give effect to these reasons for decision (and where necessary to correct any arithmetical errors in calculations) and to propose a trustee (and prescribe a sum of money which should be set aside for trustee fees), and for the appropriate costs orders of the proceedings.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LP
Associate to His Honour Judge Curwood
30 OCTOBER 2025
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