Linda McAulley as representative of the Estate of the late Basil Upton v Alcoa of Australia Ltd - [2001] WADC 126

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: LINDA McAULLEY as representative of the Estate of the late BASIL UPTON -v- ALCOA OF AUSTRALIA LTD & ORS [2001] WADC 126

CORAM: COMMISSIONER REYNOLDS

HEARD: 10 MAY 2001

DELIVERED : 1 JUNE 2001

FILE NO/S: CIV 3518 of 1996

BETWEEN: LINDA McAULLEY as representative of the Estate of the late BASIL UPTON
Plaintiff
AND
ALCOA OF AUSTRALIA LTD
First Defendant
CORNHILL BUILDING & FABRICATION PTY LTD
Second Defendant
MALAVOCA PTY LTD
Third Party

Catchwords:

Damages - Plaintiff dies after accident - Plaintiff's cause of death unrelated to the accident - Measure of damages - Whether damages should include loss of earning capacity beyond the date of death - s 4(1) and 4(2) of the Law Reform (Miscellaneous Provisions) Act 1941-1982 - Application to amend statement of claim to include future economic loss for period beyond date of death

Legislation:

Fatal Accidents Act 1959

Law Reform (Miscellaneous Provisions) Act 1941-1982
Law Reform (Miscellaneous Provisions) Act 1944 NSW
Law Reform (Miscellaneous Provisions) Amendment Act
Mines Safety and Inspection Act 1994

Superannuation Guarantee (Administration) Act 1992

Result:

Application by the plaintiff to amend dismissed

Representation:

Counsel:

Plaintiff:     Mr B L Nugawela
First Defendant             :     Mr C C Rimmer
Second Defendant         :     Ms L M Bishop
Third Party                   :     No appearance

Solicitors:

Plaintiff:     Friedman Lurie Singh
First Defendant             :     Jackson McDonald
Second Defendant         :     Pynt McKay
Third Party                   :     No appearance

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

Atkinson v Fitzwalter [1987] 1 WLR 201
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Fitch v Hyde‑Cates (1982) 2 ALJR 270
Hawker Corp Ltd v Commonwealth [1986] 65 ACTR 32
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638

Case(s) also cited:

Adelaide Chemical & Fertiliser Co Ltd v Carlyle (1940) 64 CLR 514
Baker v Willoughby [1970] AC 467
Chapman v Hearse & Anor (1961) 106 CLR 112
Gammell v Wilson [1982] AC 27
Jobling v Associated Dairies Ltd [1982] AC 794
March v E & M H Stramare (1991) 171 CLR 506
Performance Cars Ltd v Abraham [1962] 1 QB 33
Sharman v Evans (1977) 138 CLR 563
Sinclair v James [1894] 3 Ch 554
Skelton v Collins (1966) 115 CLR 94

COMMISSIONER REYNOLDS:

Introduction

The plaintiff in these proceedings is Linda McAulley as representative of the estate of the late Bail Upton. When these proceedings were commenced by writ on 17 October 1996 the plaintiff was Basil Upton. In the statement of claim dated 27 November 1996 it is alleged inter alia that:
1.Basil Upton was employed at all material times by Malavoca Pty Ltd, now the third party in these proceedings;
2.the first defendant carried on business as a mine at the Jarrahdale Minesite in Western Australia ("the Minesite");
3.the second defendant contracted with or was engaged by the first defendant to provide earthmoving services;
4.on or about 21 December 1995 Basil Upton was operating a scraper along a winrow at the minesite when a wheel of the scraper collided with a boulder submerged within the winrow, dislodging the boulder and creating a depression into which the wheel of the scraper fell causing a severe jarring of Basil Upton's spine ("the Incident");
5.the boulder had been placed on the winrow by an employee of the second defendant who was operating an excavator.
On 30 January 1998 Basil Upton ("the Deceased") died intestate of coronary arteriosclerosis with thrombosis. The Deceased's cause of death is totally unrelated to the Incident. Linda McAulley was the defacto spouse of the Deceased for many years immediately preceding his death. On 5 March 1999 the Court ordered that Linda McAulley be appointed the person to represent the estate of the Deceased in these proceedings.
On 12 May 1999 the plaintiff made an application seeking leave to amend the statement of claim in terms of a minute of proposed re‑amended further amended statement of claim dated 30 April 1999. The plaintiff's application has already been before the Court on several occasions. Various procedural orders have been made which have resulted in the plaintiff filing a further amended minute of proposed re‑amended further amended statement of claim dated 8 September 2000 ("the Amended Minute").
The Deceased was born on 26 August 1946 and so he was 49 years of age at the time of the Incident and 51 years of age at the time of his death. Notwithstanding the death of the Deceased on 30 January 1998 the Amended Minute includes a claim by the plaintiff for loss of future earning capacity and loss of future superannuation benefits to be assessed on the basis that the Deceased would have earned approximately $619 gross per week or $472.70 net per week and would have continued working to the age of 70 years. Using the 6 per cent multiplier of 599.5 for 19 years (being the difference between the age of the Deceased when he died of 51 years and the age that it is alleged he would have continued working to of 70 years) the plaintiff claims inter alia future economic loss of $371,090.50 calculated as follows:
599.5 x $619 gross per week = 371,090.50.
I note that the plaintiff has claimed future economic loss by reference to gross earnings rather than net earnings but I need not concern myself about that. The key issue concerns the plaintiff claiming future economic loss for a period of time after the death of the Deceased when the cause of death is totally unrelated to the Incident. The plaintiff also claims loss of future superannuation benefits in the sum of $25,976.33 being 7 per cent (in accordance with s 20 of the Superannuation Guarantee (Administration) Act 1992) of the sum of $371,090.50.

The issue in dispute

Counsel for the plaintiff has submitted that the Deceased's cause of action for damages including damages for future economic loss and loss of future superannuation benefits survives the Deceased's death for the benefit of his estate by force of the Law Reform (Miscellaneous Provisions) Act 1941-1982 ("the Act 1941-1982") and further that the provisions of s 4(2)(e) of the Act 1941-1982 would only curtail the plaintiff's claim for loss of capacity to earn or future probable earnings if the death of the Deceased resulted from the Incident and not where it resulted from a supervening event totally unrelated to the Incident. It is further submitted that the death of the Deceased by a supervening event is one of a multiple of sufficient causes of loss to the estate of the Deceased and is not a subsequent independent event constituting a novas actus interveniens sufficient to break the chain of causation.
It has been submitted on behalf of both the first defendant and the second defendant that the Act 1941-1982 does not operate so as to enable the plaintiff to claim any damages for future economic loss and loss of superannuation benefits for any period beyond the date of death of the Deceased. It is further submitted that the Amended Minute is defective by including a claim by the plaintiff for damages in relation to future economic loss and loss of future superannuation benefits for a period beyond the date of the Deceased's death. It is submitted that such a claim would not be arguable at trial and that therefore leave should not be granted to the plaintiff to amend the statement of claim in accordance with the Amended Minute. See Hawker Corp Ltd v Commonwealth [1986] 65 ACTR 32 at 38 and Atkinson v Fitzwalter [1987] 1 WLR 201 at 210 and 223.
Before I move on to consider this issue I should mention that the Amended Minute also includes an allegation that at the time of the Incident the first defendant and the second defendant as principal owed the Deceased a statutory duty of care pursuant to s 9, s 12, s 13 and s 14 of the Mines Safety and Inspection Act 1994 ("The MS&I Act") as a deemed employer. Section 14 of the MS&I Act relates to the duties of manufactures, importers and suppliers of any plant for use at a mine and not to the duties of employers. At the hearing of the plaintiff's application counsel for the plaintiff properly conceded that the references to s 14 of the MS&I Act in the Amended Minute should be deleted. Therefore it is not necessary for me to consider this second issue any further.

The analysis of the issue in dispute

At common law, personal representatives could neither sue nor be sued for any tort committed against or by the deceased in his or her lifetime. This is expressed in the common law maxim of actio personalis moritur cum persona. Therefore at common law, if the victim of a tort causing personal injury died before judgment was given in an action for damages then the action was abated. No action could be brought on behalf of the victim's estate whether the death was due to the injury sustained by the initial tort or due to some independent cause. Eventually statutory reform took place to at least partly overcome the common law position. Reform was initiated in England with the Law Reform (M.P.) Act 1934. This legislation became the model for statutory reform in Australia. The statutory reform came about in this State by the Law Reform (Miscellaneous Provisions) Act, 1941, No 29 of 1941, which was assented to on 15 December 1941 ("the Act 1941").

Subsections 4(1) and 4(2) of the Act 1941 provided as follows:
"4. (1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of his estate. Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims under section ninety‑four of the Supreme Court Act 1935, for damages on the ground of adultery.
(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person ‑
(a) shall not include any exemplary damages;
(b)in the case of a breach of promise to marry shall be limited to such damage, if any, to the estate of that person as flows from the breach of promise to marry;
(c)where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included;
(d)shall not include any damages for the pain or suffering of that person or for any bodily or mental harm suffered by him or for the curtailment of his expectation of life;"
The Hansard Report dated 5 November 1941 at p 1723 shows that during the second reading of the Bill which preceded the Act 1941 Mr McDonald commented on damages for pain and suffering, injury and loss of expectation of life as then provided in a proposed amendment to par 4(1)(d) of the Bill which subsequently became s 4(1)(d) of the Act 1941. He said:
"Those damages would not go, of course, to the person who sustained the pain or suffering or had the injury or loss of expectation of life, but would go as part of his estate to the people who might be creditors or might be beneficiaries in no relation at all to the person who died.
The damages might go to some charity or might be collected by some stranger. The immediate relatives are protected under a different statute altogether, under which they can obtain damages to the extent of the financial loss which they might incur by reason of the death of the person injured. This amendment will not affect that legislation, which has been in force for 60 or 70 years."
He later went on to say:
"The amendment means that the estate of a deceased person can now, under this Bill, if passed, recover damages from the wrong‑doer for the wrong which is done to the deceased person. The estate of the deceased person can recover hospital and medical expenses and any wages which the deceased person lost prior to his death, but cannot recover damages for the pain and suffering or for the loss of expectation of life of the deceased person."
Three points arise from these comments by Mr McDonald. First, the provisions of the Act 1941 relate to the estate of the deceased as distinct from the dependants of the Deceased. It may be in some cases but it is not necessarily always the case that the beneficiaries of the estate of a deceased or the persons entitled on an intestacy would be the same persons as those who were dependant on the deceased before his or her death. The Act 1941 did not diminish the rights of dependants to recover damages from the wrong‑doer for what they had lost both past and future in the way of monetary support by reason of the death of the person upon whom they were wholly or party dependant. Subsection 4(5) of the Act 1941 provided as follows:
"(5)The rights conferred by this Act for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Imperial Act 9th and 10th Victoria, Chapter 93 (adopted in Western Australia by the Act 12th Victoria No 21), as amended by the Act No 37 of 1900, and so much of this Act as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under the said Act as it applies in relation to other causes of action not expressly excepted from the operation of subsection (1) of this section."
The Act 12th Victoria No 21 assented to on 11 May 1849 was an Ordinance for adopting certain Acts of the Imperial Parliament in the administration of justice in Western Australia. One of the Acts adopted was that intituled An Act for compensating the Families of Persons killed by Accident. It was known as the Fatal Accidents Act. It was specifically referred to during the second reading of the Bill which preceded the Act 1941. Eventually in 1959 the Parliament of Western Australia passed our on Fatal Accidents Act, 1959 which was assented to on 8 October 1959. It consolidated and amended the Law as to compensating the families of persons killed by accident. It repealed 12th Victoria No 21 insofar as it adopted the Imperial Act for compensating the families of persons killed by accident and 64th Victoria No 37.
Secondly, to the extent that there was comment in the second reading of the interrelationship between the provisions of the Bill preceding the Act 1941 and the Imperial Fatal Accidents Act adopted by this State in 12th Victoria No 21 and the restriction of damages such comment was confined to cases where the death of the deceased resulted from the act or omission of the tortfeasor or wrong‑doer. No comment was made in relation to the restriction of damages to cases where the deceased had died from a cause or causes totally unrelated to the act or omission of the tortfeasor or wrong‑doer.
Thirdly, it was thought by the legislators at the time that the Act 1941 was passed that it precluded a claim for loss of earning capacity beyond the date of death of the deceased. This was also the belief of the public and the legal profession for sometime thereafter.
In Fitch v Hyde‑Cates (1982) 2 ALJR 270 delivered 6 April 1982 the High Court of Australia considered the Law Reform (Miscellaneous Provisions) Act 1944 NSW and in particular s 2(2)(c) of that Act which was drafted in identical terms to s 4(2)(c) of the Act 1941. The High Court unanimously held that the loss by the deceased of earning capacity or wages in respect of the years of his life of which he had been deprived was a loss of the deceased rather than his estate, and accordingly was not excluded from damages by s 2(2)(c) of the Law Reform (Miscellaneous Provisions) Act 1944 NSW. The High Court was of the view that the words "loss or gain to his estate consequent on his death" provided therein are apt to refer to incidental loss or gains to the estate consequential on death namely, pensions, superannuation benefits and insurance monies.
Subsection 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 NSW was also drafted in identical terms to s 4(2)(d) of the Act 1941. The High Court also unanimously held that the words "bodily or mental harm" and "curtailment of his expectation of life" in s 2(2)(d) did not extend to economic loss flowing from the shortening of the victim's life.
Accordingly the High Court held that neither s 2(2)(c) nor s 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 NSW excluded recovery by the estate of the deceased person for loss of earning capacity during his lost years of life.
The High Court noted that there was a possibility of duplication of damages under both s 2 of the Law Reform (Miscellaneous Provisions) Act 1944 NSW and the Compensation to Relatives Act 1897 operative in New South Wales and identified the necessary set‑offs that would need to be made.
The decision in Fitch v Hyde‑Cates corrected the view that had been generally held up to that point in time as previously mentioned, namely, that the Act 1941 excluded a claim for damages for loss of earning capacity beyond the date of death of the deceased. In light of the very real potential financial consequences of the decision in Fitch v Hyde‑Cates Parliaments in Australia reacted relatively quickly and passed legislation which expressly excluded an award for damages under this head of damage.
In Western Australia the Law Reform (Miscellaneous Provisions) Amendment Act ("the Amendment Act") was passed and later assented to on 22 November 1982. The Amendment Act changed the title of the Act 1941 to the Law Reform (Miscellaneous Provisions) Act 1941-1982 and it added s 4(2)(e) to s 4(2)(a) - (d) inclusive of the Act 1941. Subsection 4(2)(e) of the Act 1941‑1982 provides as follows:
"(e)shall not include any damages for the loss of the capacity of that person to earn, or for the loss of future probable earnings of that person, during such time after his death as he would have survived but for the act or omission which gives rise to the cause of action."
In Fitch v Hyde‑Cates the respondent was the adminstratrix of the estate of the deceased and had sued the appellant for damages pursuant to s 2 of the Law Reform (Miscellaneous Provisions) Act 1944 NSW. The deceased had died in 1975 as a result of injuries suffered by him in a motor vehicle collision. The appellant was the driver of the other vehicle involved in the collision. Subsection 4(2)(e) of the Act 1941‑1982 was as mentioned a legislative response to Fitch v Hyde‑Cates and it clearly relates to damages for loss of earning capacity where the deceased dies as a result of the act or omission of the tortfeasor or wrong‑doer which gives rise to the cause of action. In this case before me the Deceased did not die as a result of any act or omission by one or both of the first defendant and the second defendant. The Deceased's cause of death is totally unrelated to the Incident on 21 December 1995. Therefore in my view the provisions of s 4(2)(e) do not apply in this case.
In my view there is no merit in the submission made on behalf of the plaintiff that because the exception in s 4(2)(e) of the Act 1941-1982 does not apply therefore the plaintiff is entitled to damages pursuant to s 4(1) of the Act 1941‑1982 which should include damages for loss of future earning capacity and loss of future superannuation benefits calculated to when the Deceased would have attained 70 years of age ie 26 August 2016, notwithstanding the fact that he died on or about 31 January 1998 and from a cause or causes totally unrelated to the Incident.
Subsection 4(1) of the Act 1941‑1982 keeps all of the Deceased's causes of action alive for the benefit of his estate. If liability is ultimately established then how damages should be properly assessed generally and bearing in mind the provisions of s 4(2) of the Act 1941-1982 is another matter. If on a proper construction of s 4(1) and 4(2) of the Act 1941‑1982 it would be necessary to assess the plaintiff's damages on the basis that the Deceased would have continued working to age 70 years then that would mean that a tortfeasor or wrong‑doer would be better off if a person died as a result of his wrong doing rather than from some totally unrelated cause.

An assessment of damages is made by considering past and existing facts as at the time of the assessment and the possibility of future events and their timing as determined at the time of the assessment. It is necessary to consider what the future may have held but for the incident that has given rise to the cause of action. It is well settled that before taking a past or existing fact into account in order to assess the quantum of damage it is necessary to first be satisfied of such fact on balance of probabilities. When considering a future event and the timing of it it is necessary to have regard to the extent of the possibility of such event occurring and its timing. See Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.
Accepting that not all contingencies are negative and require a discount to be applied to an award of damages (see Black v Motor Vehicle Insurance Trust [1986] WAR 32) it is often the case that when all contingencies including the vicissitudes of life are weighed up some discount is applied to arrive at a figure for an award of damages. If the plaintiff/victim of a tort is alive when damages are assessed the contingencies of life expectancy and future ill‑health are assessed and weighed with all other contingencies and an allowance one way or the other is determined.
In this particular case the death and date of death of the Deceased are known facts and damages should be assessed having regard to such known facts. What would otherwise be a contingency, namely life expectancy, has sadly been realised by the death of the Deceased. In my view it cannot be properly said where the death of the Deceased is totally unrelated to the Incident that his death would provide an unjust windfall to the first defendant and/or the second defendant if either one or both of them was found to be liable in relation to the Incident. I note that in par 19 of the Amended Minute under the heading "Particulars of Future Loss of Earning Capacity" in subpar (b)(i) it is pleaded inter alia that "... but for the accident the Deceased would have continued working up to the age of 70 years." That pleading is simply not open. The sad fact of the matter is that the Deceased died on or about 30 January 1998 due to a cause totally unrelated to the Incident. Further, the cause of death of the Deceased being totally unrelated to the Incident the Fatal Accidents Act 1959 does not apply.

Conclusion

For all of these reasons leave for the plaintiff to amend the statement of claim in terms of the Amended Minute is refused. I will hear from the parties on the wording of the final orders and costs.