Mahoney, Mahoney & Mahoney v Dewinter
[1993] QCA 66
•15 March 1993
IN THE COURT OF APPEAL [1993] QCA 066
SUPREME COURT OF QUEENSLAND
No. 182 of 1992
Before the Court of Appeal
The President
Mr Justice McPherson
BETWEEN:
ANN MAHONEY, CLINTON CHRISTOPHER MAHONEY
and KELLIE ANN MAHONEY (infants by their
next friend, the said ANN MAHONEY)
Plaintiff (Respondents)
AND:
MICHAEL HAROLD DEWINTER and
CARMEL FRANCES DEWINTER
Defendants (Appellants)JUDGMENT - THE COURT
Delivered the Fifteenth day of March 1993
MINUTE OF ORDER
Appeal dismissed with costs.
CATCHWORDS
MASTER AND SERVANT - NEGLIGENCE - Road accidents - Fatal accidents Legislation - Lord Campbell's action - Damages - Quantum
Counsel:K. Bolton for the respondent/plaintiffs
S. Williams Q.C., with him Ross Dickson, for the appellant/defendants
Solicitors: Thompson, King Connolly t/a for Keith J. Hunter & Associates, Southport for the respondent/plaintiffs
Murrell Stephenson for the appellant/defendants
Hearing date: 9 March 1993
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
No. 182 of 1992
BETWEEN:
ANN MAHONEY, CLINTON CHRISTOPHER MAHONEY
and KELLIE ANN MAHONEY (infants by their
next friend, the said ANN MAHONEY)
Plaintiff (Respondents)
AND:
MICHAEL HAROLD DEWINTER and
CARMEL FRANCES DEWINTER
Defendants (Appellants)JUDGMENT - THE COURT
Delivered the Fifteenth day of March 1993
This appeal is confined to the quantum of damages awarded to the respondent plaintiff and her two infant children arising out of the death of the plaintiff's husband on 14 December 1985 in an accident for which the appellant defendants are responsible. They were the employers of the deceased.
The damages awarded were as follows. The plaintiff received a total of $171,750 comprising (apart from interest) $50,250 for past dependency assessed to the date of judgment on 31 July 1992, and $115,695 for future dependency thereafter. Each child received $35,500 representing $10,500 for past and $25,000 for future dependency. All three of them were wholly dependent on the deceased at his death.
The deceased was aged 32 years at death. His widow, the plaintiff, was almost 31, and the two children were 2½ years and almost 2 years of age. By the time of trial the plaintiff was 37 and the children were 9 and 7 years old.
The deceased was a truck driver who was killed while driving a truck in the course of his employment. There were some difficulties in ascertaining the amount of income lost in the 6.5 years before judgment. However, basing his calculations on the award rates ruling from the time of death in 1985, his Honour arrived at a net figure of $112,157.33 representing loss of income for the whole of the period. He discounted this figure by 15% to allow for contingencies, and then applied a dependency factor of about 75%, so as to arrive at a total for past support lost by the widow and children of $71,250. It was this sum that was apportioned as to $21,000 to the two children and the remaining $50,250 to the widow.
No challenge is made to the figure of $112,157.33 representing total pre-trial earnings lost, but on appeal criticism was directed both to what is said to be the paucity of the 15% discounting factor, as well as to the adoption of 75% as the appropriate percentage to be applied in assessing the level of dependency.
As regards the first of these two points, the appellants' case on appeal was essentially that, while 15% was approximately the correct discount factor to be applied in an ordinary case, there were matters in the present case that were so far from ordinary as to call for a much more substantial discount. These matters comprised a mix of various circumstances, which included the deceased's disqualification from driving; a fraud he perpetrated to obtain another licence; his consequent vulnerability to prosecution; the state of his general health; the inherent dangers associated with truck driving; his past pattern of employment; his fraudulent receipt of employment benefits; and so on.
On examination, few of these factors can be seen to merit prolonged consideration. The deceased smoked and was considerably overweight; but in the end the medical evidence goes little further than to emphasise in the most general way the dangers that circumstances like that present to human health; nor does the evidence establish more than that the deceased was a moderate drinker. As regards the risks of truck driving, the deceased had in 1983 and 1984 been involved in two previous driving accidents, one of them serious. He was perhaps most unlucky to be involved in 1985 in the third and fatal incident, which was, it may be said, due to no fault of his own but to the grossly defective condition of the brakes on his employers' vehicle. But, although the dangers of truck driving are obviously greater than of many purely sedentary occupations, there was nothing proved at trial that shows the risk involved in truck driving to be a factor requiring special attention in this case going beyond others of its kind.
The main attack on the paucity of the discounting factor adopted by the trial judge was rested on the driver's licence disqualification. It was sustained by the deceased in March 1985 in Victoria on an occasion when he had been unexpectedly called on to do work for his employer after attending a funeral wake where he had consumed alcohol. It was a four‑year suspension, which deprived him of what (apart from labouring work) was practically his sole livelihood. In consequence he and his family moved to Queensland in April 1985; and, after some not very successful efforts to obtain other work, the deceased applied for and obtained a licence in Queensland. He failed to disclose his existing disqualification, and he gave particulars of his name and address and place of birth that were false in various respects. This meant that under statute the licence was void and he was liable to be penalised. It obviously placed his income-earning ability at some risk in the long term; but it did so to a degree that depends on how seriously one rates the possibility of his deception being discovered. How serious that possibility was it might be difficult to say. If he was found out, he faced prosecution and a penalty; and not only for this offence, but also for the occasion between 28 November and 12 December 1985, when he continued to receive unemployment benefits after he had begun working for the defendants. However, it is perhaps unlikely that for either offence he would have been sentenced to imprisonment for any term that would have been likely to interfere with his ability to go on working.
It remains correct to say that the deceased's previous employment and income-earning pattern had been disrupted by the two earlier accidents and the period of disqualification. The defendants nevertheless do not quarrel with the adoption of the award rate as the basis for calculating pre-trial loss. In late 1985 the award rate was $291.69 gross per week, or approximately $238 weekly after tax, together with some small extras such as tonnage and travel allowances. Judging by the amounts actually paid, which totalled $1040 in the three weeks before his death, the deceased is likely to have been earning considerably more than the award rate. His Honour's adoption of $238 per week as the basis for calculation thus in a real sense already made allowance for contingencies, like less‑than-full employment, accidental injury, discovery of the disqualification, and so on; and if contingencies were already catered for in this way, there would be little justification for applying a discount factor at a rate higher than the 15% adopted by the learned trial judge.
Much the same observation applies to the complaint about the dependency factor of 75%. The challenge is not directed to the use of a percentage of that order in the case of a dependent widow and children; what is said is that, when the evidence here is looked at, the figures do not support its use in this case. The plaintiff said the deceased took about $80 for food and accommodation on each of his trips away; they paid $100 weekly in rent, and about $90 to $100 on "weekly consumables". On this footing, their weekly expenditure would have come to more than the average weekly net income of $238 that his Honour ascribed to the deceased in the course of assessing the pre-trial loss.
Plainly there is a shortfall somewhere. It is difficult, however, to see how its recognition assists the defendants. The trial judge accepted the plaintiff as a credible witness. If, as she said, she and the deceased were spending $270 or more a week it can only be explained on the footing that his income was in fact more than the weekly sum of $238 net adopted for the purpose of the calculation. Once that is known, fixing on a 75% dependency level is by no means unreasonable, and certainly does no injustice to the defendants.
Overall, it cannot be said that any of the complaints levelled at the assessment of compensation for the pre-trial loss of dependency is made good.
Turning to the period after trial, the learned trial judge adopted 8 years as the period of full dependency of both the widow and two children. This is consistent with the ages of the children at trial and with the plans the couple had in mind for their future. His Honour then applied the dependency factor of 75% to gross award rate of pay for a truck driver at 25 December 1991, which produced a weekly after-tax amount of $275. Using the 3% table, this resulted in a total of $102,300.
After that initial period of 8 years, the widow was allowed a further amount of damages for loss of dependency for herself alone. In arriving at this period the trial judge accepted that the deceased's obesity meant that there was some prospect that he might not have worked to age 65. He nevertheless adopted that age as the outer limit of the widow's dependency, and then proceeded to make a deduction for contingencies. Using what he said was the conventional figure at this stage of two-thirds of the deceased's earnings, he arrived at a weekly after-tax amount of $245 which, when capitalised over the 18 years limited to commence after the initial 8 year period, produced the present sum of $140,875 on the 3% table. To accommodate contingencies and imponderables, his Honour then discounted that sum by 55% (which, as he pointed out, is the equivalent of a 10 year deduction). In practical terms this had the consequence of reducing the period of the widow's post-trial dependency from 18 to 8 years commencing after the initial 8 year term of joint dependency with the children.
In arriving at the 55% discount figure his Honour took express account of three main contingencies. These were: (i) the "stronger than usual" prospect that the widow would remarry; (ii) the prospect that the deceased would not have worked to 65; and (iii) the prospect that his obesity might have reduced his life expectancy to "somewhat below average".
On appeal the attack on this part of the judgment was levelled primarily at what was alleged to be the insufficiency of the discount allowed for the prospect of remarriage by the widow. The prospect is admittedly one to which proper consideration and weight should be given particularly in the case of a young widow : see Elford v. F.A.I. General Insurance Co. Ltd. (C.A. 1.4.1992). The fact remains, however, that it is one to be determined by reference principally to the circumstances of the particular plaintiff herself, and not in some quite abstract fashion. In that regard it may be noted that no information was provided of the statistical likelihood of remarriage by a 37 year old widow.
In the case of the plaintiff here, she has returned to Victoria and now lives with her children in a housing commission house in Shepparton. She has formed a close attachment to a man named Rogers, to whom she describes herself as informally engaged. The association commenced some four years ago and includes their having sexual relations. He is a divorcee with grown up children but with no current financial obligations to his former wife or children. The plaintiff and Rogers live in separate houses but occasionally stay overnight at the home of one or the other. He has proposed marriage to her and she wears an "unofficial" engagement ring. She has nevertheless so far declined his proposals of marriage, doing so for reasons of the heart or mind which, according to her own evidence, she cannot fully explain and about which she has consulted her doctor. While not ruling out the possibility of marriage in the future, there is a psychological barrier which she has found difficult to overcome.
Assessing the plaintiff's prospects of remarriage in these circumstances presented a difficult task for the trial judge. It seems evident that if the plaintiff does not marry Rogers, there is perhaps little real prospect that she will marry anyone in the foreseeable future. An obvious but discreditable motive for her not wishing to marry Rogers now might be thought to be a concern about losing or seriously diminishing the value of her dependency claim against the defendants. No suggestion to that precise effect was put to her in cross-examination. In any event, his Honour plainly accepted her evidence. He describes her as "a fundamentally truthful person". Her reservations about remarrying are therefore to be considered genuine. His Honour nevertheless acknowledged the possibility of remarriage, saying that "clearly the plaintiff's prospects of remarriage were to be taken into account in assessing her future dependency entitlement, even if it was a contingency that in a particular it was difficult to give pecuniary effect to".
The present case was one in which that difficulty existed. It is, however, plain that the discount of 55% over 18 years was designed to take account of the prospect of remarriage as well as the other contingencies and imponderables, including those, like ill-health and obesity, already mentioned. In view of the obvious difficulties of assessment, it is really not possible to be critical of the extent of the discount applied, or to insist that, on the evidence, it ought to have been more.
The case is not one in which the trial judge has been shown to have made any specific error of law or fact, or to have fallen into any other error that substantially affects the quantum of damages awarded. For all these reasons the appeal should be dismissed with costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
No. 182 of 1992
BETWEEN:
ANN MAHONEY, CLINTON CHRISTOPHER MAHONEY
and KELLIE ANN MAHONEY (infants by their
next friend, the said ANN MAHONEY)
Plaintiff (Respondents)
AND:
MICHAEL HAROLD DEWINTER and
CARMEL FRANCES DEWINTER
Defendants (Appellants)The President
Mr Justice McPherson
Judgment of the Court delivered on the Fifteenth day of March 1993
Appeal dismissed with costs.
CATCHWORDS
MASTER AND SERVANT - NEGLIGENCE - Road accidents - Fatal accidents Legislation - Lord Campbell's action - Damages - Quantum
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