| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MICKELBERG -v- AERODATA HOLDINGS LIMITED & ANOR [2003] WADC 75 CORAM : O'BRIEN DCJ HEARD : 20 OCTOBER TO 3 NOVEMBER 2000 & 14 NOVEMBER 2002 DELIVERED : 25 MARCH 2003 FILE NO/S : CIV 931 of 1987 BETWEEN : FAYE SUSANNE KIMM MICKELBERG Applicant
AND
AERODATA HOLDINGS LIMITED
First Respondent
AGRICULTURAL & GENERAL AVIATION PTY LTD
Second Respondent
Catchwords: Claim for damages under Fatal Accidents Act 1959 - Assessment of damages
Legislation: Fatal Accidents Act 1959
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Result:
Total damages in the sum of $293,560 Representation:
Counsel:
Applicant : Ms J Pinnington
Second Respondent : Mr B A Winburn-Clarke
Solicitors:
Applicant : Lawton Gillon
Second Respondent : Srdarov Richards Burton
Case(s) referred to in judgment(s):
De Sales v Ingrilli [2002] HCA 52
Case(s) also cited:
Batchelor v Burke (1981) 148 CLR 448
Carrol v Purcell (1961) CLR 73
Houareau v Bouyer, unreported, FCt SCt of WA, Library No. 8287, 30 May 1990
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O'BRIEN DCJ:
Background to the assessment of damages 1 On appeal against my decision dismissing the applicant's claim against the respondents for damages, the Full Court of the Supreme Court of Western Australia gave judgment in her favour against the second respondent ("AGA"). The Full Court ordered that the applicant be entitled to an amount equal to 40 per cent of the damages suffered by the applicant. Further, the Full Court ordered that" "The action be remitted to her Honour Judge O'Brien for assessment of the damages suffered by the applicant on the basis of the evidence given and the submissions made at trial and therefore the making of appropriate orders for costs and generally". 2 The applicant's appeal as against the first respondent was dismissed by consent. 3 Following the Full Court's decision, AGA made application to the High Court for special leave to appeal. I am informed that this application will be listed in April. 4 By notice of motion dated 15 August 2002 as amended, AGA applied for a stay of assessment of damages pending the determination of its application for special leave to appeal in the High Court and the appeal should leave be granted. 5 The parties subsequently agreed that damages be assessed but that execution on any damages or costs of the proceedings be stayed pending the outcome of AGA's appeal to the High Court. 6 The Full Court's order as outlined above was to the effect that the assessment of damages be based on the evidence and the submissions made at trial. Counsel for AGA effectively relied on written submissions made by the first respondent. Following the appeal, I directed the parties to provide submissions outlining the evidence on which they relied upon which damages should be assessed and up-to-date tables reflecting their respective calculations of the applicable damages.
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The evidentiary basis for the assessment of damages
7 The applicant claims only loss of direct pecuniary benefit that she and her daughter, Paula, could reasonably have expected from the continuance of her husband's life had death not occurred. In this case, that pecuniary benefit is reflected only by the income the deceased would have earned in his working life. 8 The evidence of the applicant is the primary evidence relating to the damages. Her evidence was not challenged significantly, or at all, insofar as her dependency on the deceased was concerned. 9 The deceased was born on 14 February 1948. There is no evidence as to his date of birth. AGA appears to accept this date subject to the applicant providing proof. To date I have received no notification that the date of the deceased's birth is in dispute. The applicant was born on 29 October 1947. She married the deceased on 16 July 1966. There are two children of the marriage. Paula Lorraine Mickelberg, who was born on 8 March 1969, was the only dependent child for the purpose of the application. 10 The deceased was a pilot at the time of his death on 27 February 1986. The deceased made a will on 24 May 1983 and the applicant is his sole beneficiary.
The deceased's financial position 11 The relevant evidence in relation to the deceased’s income and potential income is as follows. On 9 January 1973, the deceased obtained a commercial pilot's licence. He received his senior commercial licence on 14 May 1976. 12 In 1982, the deceased obtained his first full-time employment as a pilot when he was employed as a helicopter pilot with Mayne Bristows. He held this position until 1983. 13 On 15 February 1983, the deceased was imprisoned. Following a successful appeal against his conviction, the deceased was released from prison on 4 November 1984. 14 The applicant testified that prior to being imprisoned, the deceased was generally in full-time employment. There is no evidence to the contrary. The applicant testified that she was always responsible for handling the family's finances.
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15 When he was released from prison, the deceased obtained work with the first respondent as a commercial pilot and held the position of Chief Pilot. He had been offered a job by Bernfield Pacific Helicopters in New Guinea as a first officer shortly prior to his death and intended to take up the offer.
16 The evidence of the applicant is that the deceased neither smoked, gambled nor had any projects that he financed.The applicant testified that the deceased was "a good provider". 17 The evidence is that at the date of trial, if working as a commercial pilot, the deceased would have earned an annual salary in the region of $100,000 to $120,000. 18 From 1 July 1985 until the date of his death on 27 February 1986, the deceased earned a salary of $26,888.50. This equates to an annual income of $40,555.15.
The dependency of the applicant 19 The applicant's evidence is that she did not work from around 1978 to the time of the deceased's death. She testified that she had no intention of working. This was because the deceased was often away from home and the couple agreed that when he was at home, the applicant should have some time with him. The applicant has not re-married since the deceased's death. 20 Shortly after the deceased's death, the applicant obtained work as a patient care attendant at Graylands Hospital. 21 It was submitted on behalf of the first respondent, a submission supported by AGA, that the evidence is uncertain as to whether the applicant went to work in July 1986 strictly out of financial need, rather than as an exercise of choice. Alternatively, AGA submits that if there was initially a financial need, that the applicant would have worked as a matter of choice at some time in the future and that the Court should make an appropriate deduction for that contingency even if Mr Mickelberg had not been killed. 22 This issue was not followed up in cross-examination by either of the respondents at trial. Mr Mickelberg's primary occupation was that of a pilot. Prior to his death he had been offered a job away from home in New Guinea. The evidence supports a finding that the applicant returned to work strictly out of financial need and has worked since then because
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of financial need. I observe that the deceased earned a reasonably high income during his life and worked as a pilot with the potential for incremental increases in his salary. Given the applicant's evidence that she decided not to work to spend time with her husband when he was at home, in my view, it is highly unlikely that she would have obtained work in a position equivalent to her present one for what was and still is a relatively modest income. There is no direct evidence nor is there any evidence from which I can draw an inference that the applicant would have resumed employment during the course of her marriage in any event. However, it is a contingency which I take into account in the assessment of the damages. 23 In written closing submissions dated 3 November 2000, AGA submitted that damages must take into account the acceleration of benefits through the applicant effectively being in the position of a life tenant under a trust in respect of her residence and which has prevailed since the death of the deceased. In my view, the evidence supports the finding that the house in which the applicant lived belonged and was registered in the name of her daughter Michelle. Her daughter, Michelle, allowed the applicant to live in the house without charge on condition that the applicant paid all relevant outgoings. There is no basis for making any deduction in relation to this arrangement. 24 In summary, I find that the applicant was financially dependent on the deceased before his death.
The dependency of the daughter ("Paula") 25 When her father died, Paula was 16 years of age and in Year 12 at school. She finished her TEE in 1986 and commenced to study veterinary science at Murdoch University the following year. 26 Paula lived with the applicant for approximately two years and then obtained a part-time live-in position while she continued to study. The applicant continued to support her financially. The applicant ceased to support Paula financially when she graduated after five years of study. Paula did not have an Aus-Study loan because of her small income and because of the applicant's income. 27 AGA submitted that there should be a discount of 5 per cent in assessing Paula's dependency on her father given her small income when she was studying. However, the applicant testified that she financially
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supported her daughter throughout her degree and I am satisfied that whatever Paula's income, that she was primarily dependent on her mother. 28 Paula was financially dependent on her mother from the date of the death until she finished her degree in December 1991. The applicant claims the dates of Paula's dependency are from 30 March 1986 until 30 June 1991. Adopting the first respondent's submission, AGA claims that Paula was financially independent from 30 June 1992. In the absence of any detailed evidence on the issue, I shall calculate damages on the basis that Paula was financially dependent from 30 March 1986 to 30 June 1991. 29 AGA's submission is that the applicant's delay in prosecuting the trial meant that the claim could otherwise have been settled or gone to trial by 30 June 1992. In my view, no allowance should be made for this. There was no evidence adduced at trial to suggest there had been any undue delay in bringing the matter for trial. Indeed, the respondents made application at some stage to dismiss the action for want of prosecution and that application was dismissed.
Contingencies 30 AGA submits that there is no evidence that the deceased would have worked until the age of 65 years having regard to his occupation of a pilot, it being a high risk occupation with a high early retirement rate. The submission is that it is more likely the deceased would have worked to age 55 or 60. There is no evidence to support this submission. It is usually assumed in cases of this sort that the deceased would have worked until retirement age. 31 In written submissions by the first respondent, adopted by AGA at trial, no deduction is claimed for any prospect of re-marriage. In De Sales v Ingrilli [2002] HCA 52, by a majority of four to three, the High Court held that there should be no separate discount to reflect the prospects of re-marriage. However, such a discount could be taken into account as one of a number of general vicissitudes of life. I take into account that the applicant has not remarried nor been financially provided for by a third party since her husband's death. 32 Consideration of the negative and positive contingencies, which might arise, always involves a deal of speculation. The evidence adduced at trial concerning the circumstances of the family was very limited. The issue of contingencies was discussed by the High Court in the De Sales
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case. I do not repeat the examples given by the High Court but they are illustrative of the type of contingencies which would ordinarily be taken into account. Whilst there is no fixed rate applicable in Western Australia, given the respective ages of the deceased and the applicant at the time of his death and the evidence outlined above, I am of the view that 10 per cent is the appropriate discount for contingencies in this case.
Dependency rates 33 I refer to and adopt the Table of Dependency of Surviving Parent and Children being Table 9.1 in Assessment of Damages for Personal Injury and Death, 4th ed, Harold Luntz at p 503, which is commonly used in District Court actions of this kind and is always relied upon by the parties in this case. 34 During the time Paula was dependant, the level of dependency is calculated at 71.9 per cent being for the spouse and 43.8 per cent for the child.
35 From 1991 onwards, the level of dependency for the spouse alone is 65.6 per cent.
Income 36 I adopt the table of income prepared by the applicant's representatives, which is based on the deceased's last known income, adjusted according to the Consumer Price Index. This is a revised table which incorporates the dependency rates referred to in table 9.1 in Luntz. The applicant's calculations make no allowance for employer contributions to superannuation nor for the deceased's prospects of promotion. The income estimated for the 2003 financial year is around 63 to 76 percent of the income which the evidence suggested the deceased would have earned at the date of trial. In all the circumstances, the applicant's calculations are conservative. I do not include as an attachment the applicant's table of calculations. Based on those calculations I have recalculated the period from 1 July 2002 up to the date of judgment, being a period of 268 days as follows: | Date | CPI | Gross Income | Tax | Medicare Levy | Net Income | 65.6% Dependency | Interest | Total | | 30/06/02-25/03/03 268 days | 1.88 | $55,969 | $13,887 | $750 | $41,332 | $27,114 | $812 | $27,926 |
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37 The applicant had calculated the past loss up to 31 December 2002. The difference between that figure and the recalculation up to date of judgment is $10,208 which I have added to the total calculated by the applicant.
Interest rates 38 Several Supreme Court interest rates applied during the 15-year period of "past" loss (1986 until date of judgment). These varied from 14 per cent to 6 per cent (as per the table submitted by the applicant). The applicant has calculated interest on the basis of the prevailing interest rate for the relevant income period and halved it. This appears to be an acceptable method of determining the rate where loss of earnings has occurred progressively during the period from the date of death up to the date of judgment (cf Luntz p 610).
Proportion of damages 39 It is necessary for me to determine what proportion of the damages should be allocated to the applicant and what proportion to her daughter. The applicant calculates the interest on the combined amount (past loss) payable to the applicant and Paula. I leave it to the applicant's legal representatives to calculate the interest applicable to the respective amounts allocated to the applicant and Paula and apply it accordingly. All totals have been rounded up. Past loss 40 Period when spouse and one child dependent 01/03/86 to 30/06/91: 41 Period when spouse only dependant: 01/07/91 to 25/03/03 (including interest) $333,202 Total past loss $468,028
Future loss 42 25/03/03 (date of judgment) to 14/02/13 (date of deceased's 65th birthday): (Page 10)
Less dependency (65.6%) $ 34,046 Net weekly income $654.00
25/03/03 – 14/02/13 (retirement age)
Say 10 yrs @ $654 x 451.7 (multiplier) $295,412 Less contingencies @ 10% $ 29,541 Total future loss$265,871 Plus past loss $468,028 $733,899 Less 60%
(reduction for contributory negligence) $440,339 TOTAL LOSS$293,560
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