Kuhlewein v Fowke
[2000] QSC 404
•10 November 2000
SUPREME COURT OF QUEENSLAND
CITATION: Kuhlewein v Fowke [2000] QSC 404 PARTIES: GERHARD KUHLEWEIN
(first plaintiff)
and
MATTHIAS KUHLEWEIN
(second plaintiff)
and
KORNELIA KUHLEWEIN, SAMUEL KUHLEWEIN,
ANITA KUHLEWEIN, DANIEL KUHLEWEIN and
MARISA KUHLEWEIN
(third plaintiffs)
and
SIMONE KUHLEWEIN
(fourth plaintiff)
v
ROBERT NATHAN FOWKE
(first defendant)
and
VACC INSURANCE CO LTD
(second defendant)FILE NO: S11008 of 1998 DIVISION: Trial Division DELIVERED ON: 10 November 2000 DELIVERED AT: Brisbane HEARING DATE: 21-22 August 2000 JUDGE: Mullins J ORDER: Action be adjourned for further hearing or submissions in relation to calculation of interest and the amount of the administration fees payable to the Public Trustee in respect of the awards assessed in favour of each of the third plaintiffs. CATCHWORDS: DAMAGES – LORD CAMPBELL'S ACTION – plaintiffs' wife and mother killed in car accident – assessment of damages – compensation for pecuniary loss to extent deceased made financial contribution to household – compensation for loss of services to extent deceased made contribution in services to household – whether husband's damages to be discounted to reflect succession to wife's interest in joint and partnership assets. Motor Accident Insurance Act 1994
Supreme Court Act 1995Daniels v Jones [1961] 1 WLR 1103
Lewis v Dalton (1986) Aust Torts Reports 80-045
Lewis v Dalton (1986) Aust Torts Reports 80-069
McCullagh v Lawrence [1989] 1 QdR 163
Nguyen v Nguyen (1990) 169 CLR 245
Nguyen v Nguyen (No 2) [1992] 1 QdR 405
Nicol v Rabbitt [2000] QCA 287COUNSEL: P D McMurdo QC and M W Jarrett for the plaintiffs
P V Ambrose for the defendantsSOLICITORS: Thynne & Macartney for the plaintiffs
Gadens Lawyers for the defendants
MULLINS J: Mrs Ulrike Kuhlewein who was born on 26 March 1953 died on 29 November 1995 as a consequence of injuries sustained in a motor vehicle accident on the D'Aguilar Highway on that date. That accident involved a collision between the vehicle driven by Mrs Kuhlewein and the vehicle driven by the first defendant which was insured in accordance with the Motor Accident Insurance Act 1994 with the second defendant as the licensed insurer. The liability of the first defendant for the accident is not in issue. The quantum of damages appropriate to be awarded to each of the plaintiffs is in issue.
| [2] | The first plaintiff Mr Gerhard Kuhlewein was the husband of Mrs Kuhlewein. He was born on 10 January 1942 and married Mrs Kuhlewein on 8 June 1978. |
Mr and Mrs Kuhlewein had seven children. The eldest is Matthias Kuhlewein (to whom I shall refer as "Matthias") who is the second plaintiff. He was born on 23 April 1979. The second eldest is Simone Kuhlewein (to whom I shall refer as "Simone") who is the fourth plaintiff. She was born on 29 January 1982.
The remaining children are the third plaintiffs who are infants suing by their father as next friend. Kornelia Kuhlewein was born on 24 December 1983. Samuel Kuhlewein was born on 12 March 1985. Anita Kuhlewein was born on 25 January 1987. Daniel Kuhlewein was born on 23 November 1991. Marisa Kuhlewein was born on 5 June 1995.
| [5] | The plaintiffs' action claiming damages against the defendants is brought pursuant to section 17 of the Supreme Court Act 1995. |
Background
Mr and Mrs Kuhlewein were farmers in Germany. Mr Kuhlewein also undertook contract harvesting. They sold their assets and moved to Australia in 1984. They purchased jointly a pineapple farm at Wamuran which included a house in which they resided. There was not a sufficient income from working the farm, so they built and furnished some townhouses at a cost of $292,000 on land which had been purchased by them jointly in Caboolture. Those townhouses were then rented by them.
In 1988 Mr and Mrs Kuhlewein decided to purchase a private bus line, with one bus doing local bus runs. The bus business was conducted by Mr and Mrs Kuhlewein as partners. The business was built up, so that by the date of Mrs Kuhlewein's death, there were 15 buses in the fleet, 22 bus runs and 11 part-time employees. The bus runs were school runs. The business also undertook some charters which were mostly school charters.
The pineapple farm was leased out in 1993. At the date of Mrs Kuhlewein's death, the Kuhlewein family lived on the earnings from the bus business, the rent from the pineapple farm and the net receipts from the townhouses.
Mr and Mrs Kuhlewein did not maintain separate bank accounts for their personal affairs and the bus business. They had a joint bank account into which all rents from the farm and the townhouses and receipts from the bus business were paid and out of which all expenses both business and personal were paid.
Mrs Kuhlewein's share of the partnership profits from the bus business were not significant in the period 1 July 1991 to her death. Mrs Kuhlewein's share of the net profit or losses from the bus business for the years ended 30 June 1992, 1993, 1994 and 1995 were respectively $2,928, ($25,796), ($13,311) and ($14,300). In each of those years, however, the partnership was able to claim a significant amount as a depreciation expense. As that is a notional expenditure not actually made, the amount attributed to depreciation represented funds available to Mr and Mrs Kuhlewein to spend.
Prior to her death Mrs Kuhlewein was in good health. Mr Kuhlewein considered her to be healthier than him. Mr Kuhlewein was 11 years older than Mrs Kuhlewein. At the date of her death, her life expectancy would have been 40 years and Mr Kuhlewein's life expectancy would have been 25 years. They had a happy marriage and their family was truly close knit.
Mrs Kuhlewein's role as homemaker
Mrs Kuhlewein was primarily responsible for the housework and caring for the children. She did the shopping, cleaning, washing and cooking. She made a lot of the clothes for the children and herself. She supervised the children's homework. Mr Kuhlewein would help with the breakfast and cleaning up after meals and, when he was at home to do so, other chores around the house.
According to Mr Kuhlewein, the children were all taught the value of hard work and the older ones helped with chores around the house. Matthias stated that before his mother died the children over 10 years had to make their beds and clean their rooms on a daily basis. He did weekend chores, because school work was the priority during the week. Before Mrs Kuhlewein's death, Mr Kuhlewein expected the children as they got older to do more jobs around the house and to help look after the younger children. By way of example, Simone would help bring the clothes in from the line and was learning to cook.
Mrs Kuhlewein's role in the bus business
Mrs Kuhlewein undertook the administration of the business, because she was more literate in English than Mr Kuhlewein and had the capacity and ability to deal with administrative matters. This involved telephone liaison with Queensland Transport about the contracts for the school runs, dealing with inquiries from the schools and parents, and attending meetings with Queensland Transport officials, school representatives, and the committees of parents formed in respect of each school run.
When there was only the one bus, Mrs Kuhlewein drove the bus, while Mr Kuhlewein worked on the farm. Subsequently, Mrs Kuhlewein did some driving of the buses as a stand-in driver on an irregular basis.
Mrs Kuhlewein kept the books and accounts of the business. Although she used the computer to print out forms and the summaries of the relevant information, she did not use any computer accounting program. She worked from an office which was part of the house. Sometimes she would get up at 4.00am in order to work on the accounts. There was one phone number for both the house and the bus business. There was a telephone just outside the kitchen, so that Mrs Kuhlewein could handle telephone calls for the business without having to go to the office. As the first bus run of the morning started from their home, Mr Kuhlewein would sometimes take the younger children on the bus with him to free Mrs Kuhlewein from looking after the children. Sometimes Mrs Kuhlewein would lock herself in the office, when she wanted no interruptions to her work, telling the children what time she would then be available for them.
Mrs Kuhlewein did all the banking. She dealt with their accountant Mr Robinson.
Role of Mr Kuhlewein in the bus business
Mr Kuhlewein conducted the menial tasks in the bus business: greasing and maintaining the buses, changing tyres and driving the runs. He did more driving after the farm was leased out. He was always involved in the decision making of the business, such as when to buy a new bus. When Mr Kuhlewein gave evidence, he emphasised Mrs Kuhlewein's contribution to the success of the bus business. It is apparent from the history of the bus business and the astuteness of the decisions made by Mr Kuhlewein since Mrs Kuhlewein's death, that Mr Kuhlewein was also a significant contributor to the success of the bus business, both before and after his wife's death.
Changes in business after Mrs Kuhlewein's death
On 20 December 1995 Mr Kuhlewein entered into a contract with Russell and Madeleine Reynoldson to purchase for the price of $175,000 four school bus runs described in permit 765 and school bus registered no 755 CFN. That contract provided for the purchase price to be paid by way of $75,000 as a deposit on 30 January 1996 and then 10 monthly payments of $10,000 per month commencing on 30 March 1996.
The contract provided for Mr Reynoldson to be employed as manager of the bus business at a salary of $675 per week for the first year and to be renegotiated on 13 December 1996. The conditions of his employment provided for in the contract were that he was to work an average of 40 to 50 hours per week, with annual paid leave of 6 weeks.
From the period 15 January to 30 June 1996 Mr Reynoldson earned a gross salary of $16,200. For the years ended 30 June 1997, 1998 and 1999 he earned respectively $36,828, $39,853 and $40,592. The average gross weekly earnings including superannuation of Mr Reynoldson during his period of employment by Mr Kuhlewein was $798.06 per week.
| [22] | After Mrs Kuhlewein's death the office was transferred from within the house to the shed building which was on the same property across from the house. |
Mr Reynoldson performed his duties as manager from the office and did a lot less driving of buses than Mrs Kuhlewein had done. The records and accounting for the business became fully computerised.
| [24] | At the beginning of 1998 Matthias commenced working part-time in the bus business and learnt how to run the business by watching Mr Reynoldson. |
Mr Kuhlewein purchased a liquid waste business in November 1998 that was then run out of the office with the bus business. The liquid waste business involves pumping out septic tanks, grease traps, chemical toilets, and holding tanks and taking away liquid waste such as oily waters. The business covers the area from north of the Brisbane River to the Caloundra Shire. The business requires trucks and employs drivers. Most of the work comes in over the telephone.
| [26] | Both Mr Reynoldson and Matthias were involved in the administration of the liquid waste business in organising the work for and despatching the drivers. |
In February 1999 Matthias left home and the business to travel around Australia with his fiancee. In addition to Mr Reynoldson, the business then employed one Denise Stanway as a full-time office administrator/receptionist/bookkeeper. She remained employed until early November 1999 when Matthias returned from his travels and resumed working for the family business on a full-time basis. By Christmas 1999 Mr Reynoldson had also ceased being employed by Mr Kuhlewein. Matthias earns the amount that was being paid to Mr Reynoldson which was $831 gross per week plus superannuation. At the same time Simone commenced working full-time in the family business. Simone spends much of her work time on the telephone in relation to the liquid waste business, in particular, and does bookkeeping and basic secretarial duties.
Although Matthias was at school and was not privy to all that Mrs Kuhlewein did in relation to the bus business, he was able to comment on a comparison of the role of his mother in the bus business and that now undertaken by him, by reference to the historical records of the business. He considered that he was undertaking a similar role in the bus business to that of his mother, although he did consider that the business had probably "grown a little bit". Matthias considered that the business expanded under Mr Reynoldson. Mr Kuhlewein had also purchased a bus run to Bribie Island from BT & PM Williamson for $15,000 in the year ended 30 June 1997 and a bus run from one Sinclair for $50,000 in the year ended 30 June 1998, although the Bribie Island bus run was considered by Mr Kuhlewein to have caused a lot of trouble and was subsequently sold.
The plaintiffs prepared a schedule (Exhibit 9) which showed the gross income from the bus business for each year ending 30 June from 1992 to 1999. The information in that schedule is as follows:
Year Gross Income 1992 $44,848.26
1993 113,474.17
1994 231,269.61
1995 388,632.35
1.7.95-29.11.95 annualised 519,500.83 30.11.95-30.6.95 annualised 497,928.03 1997 578,029.87 1998 658,202.11 1999 773,995.95
As Mrs Kuhlewein's date of death was 29 November 1995, the partnership lodged a tax return for the period 1 July 1995 to 29 November 1995. The gross income for that period was $214,820.86. For the purpose of making a comparison between how the business operated under Mrs Kuhlewein and how it operated under Mr Reynoldson, the plaintiffs have "annualised" that figure which results in the sum of $519,500.83. Similarly the gross income for the period 30 November 1995 to 30 June 1996 was $283,913.26 which the plaintiffs have "annualised" to produce the figure of $497,928.03.
Mr Ambrose of Counsel submitted that annualising is a mathematical exercise which does not necessarily produce a figure from which a true comparison can be made. By way of example, he pointed out that the period 30 November 1995 to 30 June 1996 may contain more school holidays than the period from 1 July to 30 November 1995, so that annualising the gross income for the period December to June 1996 may not necessarily produce an annual income from which meaningful comparisons can be made.
I do not consider that it assists in annualising the gross receipts for the period to Mrs Kuhlewein's death and for the period after her death in the financial year ended 30 June 1996. Having regard to the nature of the business and that it operated by employing part-time drivers, the business obviously continued operating after Mrs Kuhlewein's death until Mr Reynoldson was able to take over the management of the business less than one month later. In considering the gross income of the business, I will look at the actual gross income for the year ended 30 June 1996 of $498,734.12, but recognise that the results of that year were as a result of Mrs Kuhlewein's management until her death and from 27 December 1995 were due to Mr Reynoldson's management.
The gross income for the 1992 to 1995 financial years shows a steady increase which was being carried through until Mrs Kuhlewein's death. The business was obviously expanding and that is reflected by the fleet comprising 15 buses at Mrs Kuhlewein's death. The addition of Mr Reynoldson's bus and four runs was an immediate expansion of the business after Mrs Kuhlewein's death. By 30 June 1999 the bus business had a fleet of 21 buses. The gross income for the years ended 30 June 1997, 1998 and 1999 reflect a steady increase in the size of the bus business after Mrs Kuhlewein's death.
From November 1998 Mr Reynoldson's duties extended to managing the liquid waste business and Matthias has continued with that role, in addition to managing the bus business. No additional payment has been made to Mr Reynoldson or Matthias for the work undertaken in respect of the liquid waste business. The gross income from the liquid waste business for the period from November 1998 until 30 June 1999 was $161,798.93.
Family circumstances after Mrs Kuhlewein's death
After Mrs Kuhlewein's death, relations from Germany came to visit Mr Kuhlewein to help look after the children, as did one of Mr Kuhlewein's friends. Mr Kuhlewein then decided to remarry, so that there would be someone to look after the younger children. On 2 October 1996 he married his second wife in Germany. She lived with Mr Kuhlewein and the children at the home at Wamuran until late June 1999, when they separated. The plaintiffs make no claim for loss of domestic services between the date of Mr Kuhlewein's remarriage and the date of his separation from his second wife.
| [36] | After Mrs Kuhlewein's death, Mr Kuhlewein could not manage the townhouses. They were sold before the end of the financial year ended 30 June 1996. |
Matthias completed high school in 1996. He studied law and international business at Griffith University full-time in 1997. For the first half of 1998 he studied part- time. He then gave up studying to work part-time in the bus business until he went on the trip around Australia in 1999.
Simone completed high school in 1999. Instead of undertaking further study, she has remained at home and worked in the family business. Simone states that she does most of the cooking and some of the housework, but that her brothers and sisters also help.
Mr Kuhlewein was adamant when giving evidence that he would not marry again. His attitude seems to be influenced by the failure of his second marriage. I accept that in all the circumstances there are no prospects that he will remarry in the future.
The law
A claim for damages for wrongful death can involve a claim for pecuniary loss to the extent that the deceased made a financial contribution to the household and a claim for loss of services to the extent that the deceased made a contribution in services to the household. As Mrs Kuhlewein was both involved actively as a partner in the bus business and a homemaker, the plaintiffs' claim is for both pecuniary loss and loss of services.
Compensation for the loss of gratuitously rendered domestic services by a wife and mother is not related to need, but to the loss of the services which would have been rendered. Damages are recoverable for this loss, whether or not they are replaced, provided that a pecuniary value can be placed upon them: Nguyen v Nguyen (1990) 169 CLR 245, 263. In that case the following comments were made in the joint judgment of Dawson, Toohey and McHugh JJ at 265-266:
"But the damages to be assessed are those suffered by the plaintiff and cannot always be equated with the cost of such help. The services formerly rendered by a deceased wife may not be capable of being reproduced faithfully by services which are commercially available and the scope and cost of the only services commercially available may be disproportionate in comparison with the scope and value of the services which were actually provided by the deceased wife. In circumstances such as that it will not be reasonable to regard the cost of substitute services as any more than a starting point in assessing a plaintiff's loss. Indeed, in cases where the disproportion is severe, the cost of commercially available services may offer no real guide at all. It must always be borne in mind that the damages to be assessed are those suffered by the plaintiff by reason of the death alone.
Where the services are likely to be replaced as a result of remarriage, the reasonable prospect of that remarriage will serve to reduce the compensation to which a plaintiff will be entitled, not because the plaintiff's need for the services will then be satisfied, but because the plaintiff's loss is thereby directly reduced. The prospect of remarriage has always been regarded in claims under Lord Campbell's Act as providing a gain to the husband in the form of a revival of the capacity to marry. It is something which he would not have had, if his wife had not died: Carroll v Purcell (1961) 107 CLR 73, at p 79. In some families, the children might reasonably have been expected in the course of time to have taken up, to a greater or lesser extent, the household duties previously performed by a parent. In that event, the loss incurred by reason of the death of that parent is the less. Of course, if the children take up the household duties, not in the ordinary course of events, but only because of the death of the parent, that will not reduce the total loss and it is irrelevant that the services do not need to be replaced by someone outside the household."
The High Court in Nguyen v Nguyen remitted the matter to the Full Court of the Supreme Court of Queensland for further hearing and determination in order to assess the damages for wrongful death of the deceased wife and mother. As the surviving husband in that case was unemployed, an issue arose on how the contribution of the husband to the domestic duties should be taken into account in assessing the loss of the domestic services of the wife and mother. Deane J in the course of his judgment in the High Court had stated at 256-257:
"When one spouse dies, the assessment of the value of the lost benefit of the gratuitous services of the deceased as spouse or homemaker must take account of the fact that those services were, at least in part, for the benefit of the deceased as well as for the benefit of the surviving spouse and of the fact that the surviving spouse is relieved of the burden of rendering gratuitous services for the deceased."
The further determination of the matter in the Full Court is reported as Nguyen v Nguyen (No 2) [1992] 1 QdR 405. After setting out the above quote from the judgment of Deane J, Derrington J (with whom the other members of the Full Court agreed) stated at 413:
"This should not be misunderstood for compensation must be given for the services of the deceased which were lost to the respondents even though they may have been co-existential with her own benefit from her actions; and conversely the respondents are not required to set off benefits which she received from their efforts for their own benefit where the benefit to her cost them no more. But to the extent that matters done for her benefit, whether by her or by them, did cost more in money or effort, it must be taken into account."
This aspect of assessment of damages for loss of domestic services was considered by the Court of Appeal in Nicol v Rabbitt [2000] QCA 287 at paragraph 11 where Williams J (with whom the other members of the court agreed) stated:
"Counsel for the appellant also submitted that no account was taken of the fact that some of the work performed by the deceased was also for the benefit of the deceased. What is important for present purposes is that the work must have been for the benefit of the surviving spouse in order for there to be a relevant loss. On principle it is not to the point to say that someone else, for example the deceased, also received a benefit from the performance of the task. A reading of the record suggests that there was no attempt made by counsel for the defendants to separate out and quantify any benefit received by the deceased alone from performing the work in question. If the deceased and the surviving spouse jointly benefited from what was done by the deceased then the surviving spouse has suffered a loss represented by the value of the work in question without any deduction."
Another issue of law which arose was whether there should be a reduction or discount in damages to reflect any benefit to Mr Kuhlewein by succeeding to Mrs Kuhlewein's interest in the partnership and to the assets they had owned jointly prior to her death. This is on the basis that Mr Kuhlewein has received a pecuniary advantage by the acceleration of the benefits to him (other than the matrimonial home) from Mrs Kuhlewein's death which he would otherwise have received, if he had survived Mrs Kuhlewein in the normal course of events. It is well settled that no reduction should be made for acceleration in succession to the deceased spouse's interest in the matrimonial home.
In Daniels v Jones [1961] 1 WLR 1103 the trial judge had reduced the damages awarded to a widow for a claim for the wrongful death of her husband by 12½% which was what he valued as the widow's expectancy in the deceased's assets. The defendant appealed against the amount of damages on the basis that the trial judge's assessment of the dependency was too high and that of the widow's inheritance was too low. The appeal was dismissed. On the aspect of the reduction of damages due to the acceleration of the widow's inheritance Holroyd Pearce LJ stated at 1110:
"On the facts of this case I would not myself accept that the whole of the estate that came to the wife was a benefit, less the 12½ per cent chance which she had of inheriting had the accident not occurred. The judge did not take into account the benefit which the wife had during her husband's life from the capital which was invested in his name. In some cases, of course, a wife derives little benefit from capital invested in her husband's name. But in such a case as the present the wife could clearly call on it if it were needed almost to the same extent as if it stood in her own name. It may be said that there must always in theory be some material benefit in a wife having capital actually under her control instead of under the control of a husband, even when he is clearly prepared to use it for family purposes, and if need arises to spend it on his wife (for example, if an expensive illness so required). But in this case that benefit was small in real fact. There was but little profit to the wife in having the capital (shorn by death duties) in her own hands instead of having a larger sum (not so shorn) in her husband's hands."
Willmer LJ stated at 1114:
"But whatever its value, the reality of the situation is that for all practical purposes the widow (and her family) were enjoying the benefit of it almost as much before the death of the deceased as they do now. The fact that the widow, under the deceased's will, has now become absolutely entitled to what is left of the estate is in the circumstances a change of form rather than of substance."
Pearson LJ stated at 1116:
"The widow has acquired title to the remaining investments, and, though as a matter of practical reality she is very little better off financially by reason of this transfer of title, probably some small allowance should be made under this head."
In Lewis v Dalton (1986) Aust Torts Reports 80-045, the widow succeeded to the house, a fishing vessel, some money in a joint bank account and shares which she had jointly owned with her deceased husband. McPherson J (as he then was) found that the only benefit to the widow was that she now owned those assets solely instead of jointly and stated at 67,904:
"Having regard to the way in which the parties lived their married life and pooled their resources I find it difficult to see that any real benefit is accrued to Mrs Lewis as a result of the early death of Mr Lewis, at least in relation to those assets. She has, in substance, now no better or greater access to or control of those assets than she had before his death, or, if she has any greater access or control, it is, in my view, really not capable or worthy of assessment in money terms."
That decision was affirmed on appeal reported at (1986) Aust Torts Reports 80-
069.In McCullagh v Lawrence [1989] 1 QdR 163 the Full Court dismissed an appeal from the trial judge's decision where the conclusion was reached that the benefit to the widow of the acceleration to the jointly owned assets was outweighed by the fact that, if the deceased had not been killed, he would probably have accumulated assets for the benefit of the family which exceeded the value of the acceleration. It was held that that conclusion was justified by the evidence.
It is therefore clear that the question of any benefit to Mr Kuhlewein of his succeeding to the jointly owned property and Mrs Kuhlewein's interest in the partnership must be considered, but that it is the substance of the benefit which must be considered.
Having regard to the closeness of their relationship and the pooling of all financial resources which took place between Mr and Mrs Kuhlewein, Mr Kuhlewein's position is similar to that of the plaintiff in Lewis v Dalton in that Mr Kuhlewein obtained no greater access to those assets than he had while Mrs Kuhlewein was alive. What is different in this case is that in the normal course Mr Kuhlewein would not have expected to survive Mrs Kuhlewein and therefore succeed to her interests, so that there is not strictly an acceleration of benefit, but succession to a benefit which Mr Kuhlewein would not have ordinarily expected. The result of Mrs Kuhlewein's death is that Mr Kuhlewein has sole access to the whole pool of their assets. Mr Ambrose submitted that a discount of 20% should be applied to the sum attributed to Mr Kuhlewein's pecuniary loss in order to reflect this benefit. I consider that excessive, having regard to the reality of Mr Kuhlewein's enjoyment of that whole pool of assets prior to Mrs Kuhlewein's death. In all the circumstances, however, some regard should be given to the receipt of benefits which would not normally have been expected to be inherited by Mr Kuhlewein. I will do so by taking that into account in fixing the overall discount that should apply in assessing Mr Kuhlewein's future pecuniary loss.
Assessment of pecuniary loss
The plaintiffs' approach to the calculation of pecuniary loss is that, as a result of Mrs Kuhlewein's death, the bus business had to employ Mr Reynoldson, so that the family's loss should be calculated by reference to the average gross weekly wage paid to Mr Reynoldson. From the average weekly sum paid to Mr Reynoldson, the plaintiffs have deducted the sum of $100 as representing the amount of the notional earnings retained by Mrs Kuhlewein for her own use.
It was submitted on behalf of the plaintiffs and I accept that the evidence showed that Mrs Kuhlewein was an exceptional woman, and that she had a great energy and dedication to the family which was reflected by the fact that she ran the bus business from home and managed the household.
The defendants accepted that an appropriate methodology for calculating the loss of pecuniary benefit arising from Mrs Kuhlewein's contribution to the bus business is to place a value on her contribution by reference to what it cost the business to replace her services. The defendants submitted that what was paid to Mr Reynoldson was not a true measure of the cost of replacing Mrs Kuhlewein's services, as Mr Reynoldson had the one job of managing the business which he did for 40 to 45 hours each week without the distraction of having to look after children, and the business immediately grew with the acquisition of Mr Reynoldson's bus and runs.
The defendants submitted that as Mr Reynoldson's wage was a tax deduction for the business, the expectation of benefit from Mrs Kuhlewein's contribution should not be the gross figure paid to Mr Reynoldson. The defendants also submitted that as both Mr and Mrs Kuhlewein took little by way of funds out of the business, so that funds were available for further use in the business, in the normal course of events Mrs Kuhlewein would have expected to enjoy future benefit from those funds which had remained in the business. It therefore followed that her real interest in the funds notionally treated as the value of her earnings was greater than the sum of $100 per week allowed for Mrs Kuhlewein's own use by the plaintiffs in their calculations.
Although Mrs Kuhlewein had presided over the expansion of the bus business to the stage which it had reached by her death, I infer from the description of what Mr Reynoldson did in the business together with the acquisition of his bus and runs that the bus business would not have expanded in the same way, if it had continued to be operated in the way it was operated immediately prior to Mrs Kuhlewein's death. The limitations on Mrs Kuhlewein's involvement in the business as a result of the domestic demands would have been a bar to the expansion of the business past a certain size. Although Mrs Kuhlewein was clearly a remarkable woman, I am not satisfied that in all the circumstances she would have been able to maintain the same level of contribution to the administration of the business undertaken by Mr Reynoldson on a full-time basis without the distractions of the household. The gross receipts of the business in the year ended 30 June 1995 averaged $30,800 per month. By 30 June 1999 they had grown to an average of $64,500 per month. There is also the consideration that from November 1998 Mr Reynoldson's wages covered his work in the liquid waste business.
I therefore consider that something less than Mr Reynoldson's wages and certainly no more than 80% of his average wages should be used to value the services of Mrs Kuhlewein to the business. I also accept that there is some force in the defendants' submission that using a gross figure for the notional earnings of Mrs Kuhlewein overcompensates the plaintiffs. The business has obtained the benefit to some extent of the tax deduction of the wages paid to Mr Reynoldson and then to Matthias which affected the funds available for use by Mr Kuhlewein and the dependent children. I also accept that the pooling of resources meant that Mrs Kuhlewein may in the normal course have obtained a greater benefit from her notional earnings through reinvesting them in the business than is reflected by the simple allowance of $100 per week as retention for Mrs Kuhlewein's own use. Little, if any, discount needs to be made for the vicissitudes of life in calculating past pecuniary loss, because of the business being well established by the time of Mrs Kuhlewein's death. These matters which affect the fixing of the figure for calculating economic loss are not, however, capable of precise calculation. Using the plaintiff's methodology of the same average wage figure for past pecuniary loss and future pecuniary loss, I conclude that an appropriate figure for calculating this loss of dependency is $400 per week.
The plaintiffs submit that the loss of dependency sum should be divided so that the children receive two-thirds and Mr Kuhlewein receive one-third. On the basis of the number of dependent children and access which Mr Kuhlewein had to his share of the net profits from the business and the rents, I consider that a more appropriate division of the sum for past loss of dependency is that the children receive three quarters and Mr Kuhlewein one quarter. Matthias' past loss of dependency should be calculated until he finished full-time study at the end of 1997. Simone's past loss of dependency should be calculated until she finished school at the end of 1999. The other children's dependency should be calculated until each is approximately 18 years old.
The calculation is as follows for past loss of dependency:
Mr Kuhlewein:
253 weeks x $100 $25,300 Children:
27.12.95-31.12.97(104 weeks)1/7 x 104 x $300
Matthias 4,457.14 6/7 x 104 x $300
Younger children 26,742.86 1.1.98-31.12.99 (104 weeks) 1/6 x 104 x $300
Simone 5,200.00 5/6 x 104 x $300
Younger children 26,000.00 31.12.99-10.11.00 (45 weeks)
Children younger than Simone 45 x $300 13,500.00 Total amount for each child:
Matthias $4,457 Simone 9,657 Kornelia 12,357 Samuel 12,357 Anita 12,357 Daniel 12,357 Marisa 12,357
| [58] | Interest will need to be calculated on the assessment of damages for past loss of dependency. |
In calculating future loss of dependency, it is reasonable to proceed on the basis that Mr Kuhlewein's dependency would have remained one-quarter ($100 per week) until there were only three dependent children, when it is reasonable to proceed on the basis that Mr Kuhlewein's dependency would have increased to one-third of the available amount. In the light of Mr Kuhlewein's interest in the partnership, it is reasonable to proceed on the basis that his financial dependency would never have exceeded one-third of the funds available from Mrs Kuhlewein to spend on him until she would have retired at approximately 65 years of age.
By the time that Marisa is the only dependent child, it is also reasonable to assume that the full two-thirds of the funds available from Mrs Kuhlewein would not have been spent on Marisa. I will use $200 per week for that calculation.
The first stage of the calculation of future loss of dependency is for the period from the date of delivery of these reasons until Kornelia is approximately 18 years old. The calculation using the 3% tables is as follows:
1st stage
1 year from 11.11.00
Mr Kuhlewein:
1 year @ $100 per week $5,140.00 (multiplier 51.4)
Kornelia and younger children:
1 year @ $300 per week 15,420.00
The second stage of the calculation of future loss of dependency is for the period until Samuel is approximately 18 years of age. I will do this calculation using the 3% tables on the basis of 1 year deferred for the 1 year of the first stage:
2nd stage
1 year from 11.11.01
Mr Kuhlewein:
1 year @ $100 per week $ 4,990.00 (multiplier 49.9)
Samuel and younger children:
1 year at $300 per week 14,970.00
The third stage of the calculation of future loss of dependency is for the period until Anita is approximately 18 years old. I will do the calculation using the 3% tables on the basis of 2 years deferred for the 2 years comprising the first and second stages:
3rd stage
2 years from 11.11.02
Mr Kuhlewein:
2 years @ $133 per week $12,715.00
(multiplier 95.6)
Anita and younger children:
2 years @ $267 per week25,525.00
The fourth stage of the calculation of the future loss of dependency is for the period until Daniel is approximately 18 years old. I will do the calculation using the 3% tables on the basis of 5 years deferred the 4 years comprising the first, second and third stages:
4th stage
5 years from 11.11.04
Mr Kuhlewein:
5 years at $133 per week $28,648.00 (multiplier 215.4)
Daniel and Marisa:
5 years @ $267 per week 57,512.00
The fifth stage of the calculation of future loss of dependency is for the period until Marisa is approximately 18 years old. I will do the calculation using the 3% tables on the basis of 4 years deferred for the 9 years comprising the first to fourth stages:
5th stage
4 years from 11.11.09
Mr Kuhlewein:
4 years @ $133 per week $20,070.00 (multiplier 150.9)
Marisa:
4 years @ $200 per week 30,180.00
The sixth stage of the calculation of future loss of dependency is for the period until Mrs Kuhlewein would have been approximately 65 years old. I will do the calculation using the 3% tables on the basis of 4 years deferred for the 13 years comprising the first to fifth stages:
6th stage
4 years from 11.11.13
Mr Kuhlewein:
4 years @ $133 per week $17,835.00 (multiplier 134.1)
The summary of these calculations of future loss of dependency is:
Mr Kuhlewein:
1st stage $5,140 2nd stage 4,990 3rd stage 12,715 4th stage 28,648 5th stage 20,070 6th stage 17,835
$89,398Kornelia 1st stage $3,084 Samuel 1st stage 3,084 2nd stage 3,743
$6,827Anita 1st stage 3,084 2nd stage 3,743 3rd stage 8,508
$15,335Daniel 1st stage 3,084 2nd stage 3,743 3rd stage 8,508 4th stage 28,756
$44,091Marisa 1st stage 3,084 2nd stage 3,743 3rd stage 8,508 4th stage 28,756 5th stage 30,180
$74,271
Because of contingencies, the calculation of the amount for future loss for Mr Kuhlewein should be discounted. Taking into account the vicissitudes of life and some small discount for the succession by Mr Kuhlewein to Mrs Kuhlewein's interests which he would not have expected in the ordinary course and which thereby gave him access and control over the whole pool of their assets, I consider an appropriate discount is 20% in total. That brings the assessment of the future loss of dependency for Mr Kuhlewein back to the sum of $71,518.
Taking into account how I have fixed the figure which is the basis for doing the loss of dependency calculations and that, apart from Marisa, the calculations for each of the children range over a relatively short period into the future, I consider that, of the children, only the calculation of the future loss of dependency for Marisa should be discounted in some way for the vicissitudes of life. That can be done by rounding the amount calculated for Marisa down to $70,000.
Assessment of loss of domestic services
When Mrs Kuhlewein died, the youngest child Marisa was only 5 months old. The next youngest Daniel was 4 years old and the eldest Matthias was 16 years old. Although Mrs Kuhlewein did not work outside the home, her involvement as a partner in the bus business and in managing it did impinge to some small extent on her providing domestic services to Mr Kuhlewein and to the children. It also had the effect of encouraging participation in the household chores by both Mr Kuhlewein and the older children. Although Matthias stated that when he was 16 he was "probably pretty hard to get along with" and did what he was expected to do and then locked himself away in his room to do his homework, his other evidence on the involvement of his siblings and himself in the household chores before his mother's death clearly supports the conclusion that the children in the Kuhlewein family would have been expected, as they became able to do so, to participate in the household duties previously performed by their mother.
The plaintiffs' claim for loss of domestic services is calculated by heavily discounting a calculation of the commercial cost of household care by a personal care attendant for the numbers of hours estimated by the plaintiffs as being appropriate. Evidence was given by Ms Susan De Campo of Domicare Queensland on the relevant commercial rates.
One question which arose was the date to which the dependence for domestic services should be calculated in respect of each child. The calculation in the plaintiffs' amended statement of loss and damage (Exhibit 1) proceeded on the basis that each child would be dependent until 20 years of age. Further calculations (Exhibits 11 and 12) were provided on the basis that each child would have been dependent until the age of 17 or 18 respectively. Having regard to the closeness of the family, the attitude of co-operation engendered by their parents and the extent of the participation by the older children in the household chores before their mother's death, I consider the children would have been independent of their mother's services or providing services to her which would, in effect, cancel out the loss of any services which Mrs Kuhlewein may have continued to provide, by the time each child was 17 years old.
The passage in the joint judgment in Nguyen v Nguyen (set out in paragraph 41 above) refers to the problem that the cost of commercially available domestic services may not be any real guide to the value of the deceased wife's domestic services that have to be replaced. That is, in effect, acknowledged by the approach of the plaintiffs in this case in calculating the value of the loss of domestic services. For example, in calculating past loss of domestic services for the period of 43.85 weeks between Mrs Kuhlewein’s death and Mr Kuhlewein's remarriage, the Domicare rates are $15 per hour for weekdays and $16 per hour for weekends. The plaintiffs' claim is for 13.5 hours for each day on the basis that Mrs Kuhlewein’s domestic schedule occupied her between 6:00am and 7.30pm daily. The total calculation of $1,444.50 per week at the Domicare rates is then discounted to one- third and the claim then is made for $481.45 per week.
There are no Domicare rates for employing a person to provide domestic services in a home on a full-time basis or on a live-in basis, rather than on an hourly basis, because Domicare does not provide the service of carers on a full-time or live-in basis.
Little of Mrs Kuhlewein’s time was spent on providing domestic services for which only she benefited. Dressmaking for herself was the only such activity identified. On the other hand, her activities in the bus business meant that she was a little less available than full-time for domestic services to benefit Mr Kuhlewein and the children. On the basis of the ages of the younger children, I accept that around $480 per week is a reasonable assessment of the value of those domestic services in the period immediately after death. Although those domestic services could be divided among Mr Kuhlewein and the children, there is no need to do so when Mr Kuhlewein was responsible for providing the replacement services during that period. The past losses of domestic services should therefore be regarded as a loss incurred by Mr Kuhlewein.
The second period for past loss of domestic services is from 1 July 1999 to the date of delivery of these reasons. The Domicare rates had increased by this time. From 1 September 1999, the Domicare rate was $19.80 per hour for weekdays and $29.60 for weekends. In the normal course, one would have expected the older children to be participating in the household at an even greater level by this time, even allowing for the fact that Matthias left home in early 1999. On the basis that Mrs Kuhlewein would have been providing slightly less domestic services in this period because of the available contribution of Mr Kuhlewein and the older children, but taking into account the number and ages of the dependent children, I consider that it is reasonable to continue to use the figure of $480 per week for this calculation.
The calculation of past loss of domestic services is therefore as follows:
Period from 29.11.95 to 2.10.96 (43.85 weeks) @ $480 per week $21,048 Period from 1.7.99 to 10.11.00 (71 weeks) @ $480 per week $34,080 Interest will need to be calculated on these amounts.
In calculating future loss of domestic services, for the reasons I have given in relation to $480 per week being an appropriate figure for the recent past domestic losses, I consider that $480 per week would be a reasonable amount to assess loss of domestic services until Samuel were approximately 17 years old. This amount would reasonably reduce to $360 while there were two or three dependent children and then to $240 while Marisa remained dependent. After Marisa becomes independent, I consider $120 per week for domestic services for Mr Kuhlewein for the rest of his expected life is a reasonable estimate of the benefit which Mr Kuhlewein would have received from Mrs Kuhlewein for domestic services. This is on the basis of the pattern of assistance provided by Mr Kuhlewein to Mrs Kuhlewein in the domestic chores, when he had the opportunity while she was alive.
I therefore calculate the first stage of the future loss of domestic services for the period from the date of delivery of these reasons until Samuel is approximately 17 years old, using the 3% tables, as follows:
1st Stage
2 years from 11.11.00 @ $480 per week
(multiplier 101.3) $48,624
I calculate the second stage of future loss of domestic services for the period until Daniel is approximately 17 years old, using the 3% tables, on the basis of 6 years deferred for the two years of the first stage of the calculation:
2nd stage
6 years from 11.11.02 @ $360 per week
(multiplier 270.5) $97,380
I calculate the third stage of future loss of domestic services for the period until Marisa is approximately 17 years old, using the 3% tables, on the basis of 4 years deferred for the eight years comprising the first and second stages:
3rd Stage
4 years from 11.11.08 @ $240 per week
(multiplier 155.4) $37,296
The fourth stage of the calculation of future loss of domestic services is then for the period until the end of Mr Kuhlewein’s expected life. Using the 3% tables this calculation is on the basis of 8 years deferred for the 12 years comprising the first, second and third stages:
4th stage
8 years from 11.11.12 @ $120 per week
(multiplier 260.7) $31,284
The total of these calculations for future loss of domestic services is:
First stage $ 48,624 Second stage 97,380 Third stage 37,296 Fourth stage 31,284 $214,584
This total amount for future loss of domestic services must then be discounted for the vicissitudes of life. For the total amount, I consider 15% an appropriate discount. That brings the amount for total future loss of domestic services back to $182,396. This amount is recoverable by Mr Kuhlewein, as he has had the responsibility of providing the domestic services which would have been provided by Mrs Kuhlewein and I am satisfied after listening to his evidence that he intends to continue to do so.
Mr Kuhlewein seeks to recover the sum of $2,756 paid by him on 18 December 1995 on account of the expenses for Mrs Kuhlewein’s funeral. Although strictly not recoverable in a dependency claim, the defendants have no objection to the funeral expenses being dealt with in this action. Mr Kuhlewein therefore must also recover the sum of $2,756 for funeral expenses. The question of interest on that amount remains to be resolved.
Another head of damage claimed by the third plaintiffs is the cost of administration expenses which will be payable to the Public Trustee in relation to the awards in favour of each of them. The letter from the Public Trustee of Queensland dated 18 August 2000 (Exhibit 2) sets out administration fees by reference to amounts of damages which differ from those which I have calculated in these reasons.
Presumably, before the administration fees can be finally calculated, the interest on past pecuniary loss for each of the third plaintiffs must be determined.
| [86] | In summary, apart from the administration fees and interest which are yet to be determined, my assessment of damages is: |
Mr Kuhlewein:
Past loss of dependency $25,300 Future loss of dependency 71,518 Past loss of domestic services 55,128 Future loss of domestic services 182,396 Funeral expenses 2,756 Matthias:
Past loss of dependency 4,457 Simone:
Past loss of dependency 9,657 Kornelia:
Past loss of dependency 12,357 Future loss of dependency 3,084 Samuel:
Past loss of dependency 12,357
Future loss of dependency 6,827 Anita:
Past loss of dependency 12,357 Future loss of dependency 15,335 Daniel:
Past loss of dependency 12,357 Future loss of dependency 44,091 Marisa:
Past loss of dependency 12,357 Future loss of dependency 70,000
I will therefore adjourn the action for further hearing or submissions in relation to the calculation of interest and the amount of the administration fees payable to the Public Trustee in respect of the awards assessed in favour of each of the third plaintiffs. It will also be necessary to hear submissions from the parties on the question of costs and the form of orders which should be made in respect of the awards in favour of the third plaintiffs.
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