Norris v Routley

[2016] NSWCA 367

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Norris v Routley; Routley v Norris [2016] NSWCA 367

Hearing dates:

6 September 2016

Date of orders:

16 December 2016

Decision date:

16 December 2016

Before:

McColl JA at [1]; Gleeson JA at [2]; Payne JA at [13]

Decision:

(1) Dismiss the appellant’s motion dated 3 May 2016 to lead further evidence with costs.

 

(2) Dismiss the appeal.

 

(3) Appellant to pay the costs of the respondent to the appeal as agreed or assessed.

 

(4) Application for leave to cross-appeal refused.

 (5) Respondent to pay the appellant’s costs of application for leave to cross-appeal as agreed or assessed.

Catchwords:

DAMAGES - Compensation to Relatives Act 1897 (NSW) s 4 - appellant wife of deceased - respondent doctor of deceased - respondent admitted liability in respect of deceased’s death - quantification of damages - quantification of deceased’s consumption of household income - application of Luntz standard consumption percentages - evidence that deceased had frugal consumption habits - evidence that household income would increase - Luntz percentages adopted by expert witnesses - discretionary judgment - whether actual error demonstrated

   

DAMAGES - Compensation to Relatives Act 1897 (NSW) s 4 - quantification of damages - value of deceased’s domestic services - quantification of domestic services after sons ceased to be dependent - whether to discount the value of domestic services performed by deceased to reflect the fact that some such services were performed for his own benefit - whether actual error demonstrated

EVIDENCE - Supreme Court Act 1970 (NSW) s 75A - further evidence on appeal - special grounds - appellant sought to tender evidence of revised consumption percentages based on data more recent than that used by Prof Luntz - evidence that Prof Luntz intended to include revised percentages in new edition of book - whether evidence could have been obtained at trial with reasonable diligence - whether prejudice would be caused by admission of evidence

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 56
Compensation to Relatives Act 1897 (NSW) s 4
Supreme Court Act 1970 (NSW) ss 75A, 101
Uniform Civil Procedure Rules 2005 (NSW) r 51.53

Cases Cited:

Akins v National Australia Bank (1994) 34 NSWLR 155
Axiak v Pezzano [2002] NSWCA 65
Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69
De Sales v Ingrilli (2002) 212 CLR 338; [2002] HCA 52
House v The King (1936) 55 CLR 499
Lawrence v Gunner (No 3) [2016] NSWCA 18
Nguyen v Nguyen (1990) 169 CLR 245
Norbis v Norbis (1986) 161 CLR 513
Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9
Taylor v Walker [2016] NSWCA 100
Tjiong v Tjiong [2012] NSWCA 201
Wiki v Atlantis Relocations (NSW) Pty Limited (2004) 60 NSWLR 127; [2004] NSWCA 174

Texts Cited:

Prof Harold Luntz, Assessment of Damages for Personal Injury and Death (4th ed, LexisNexis Butterworths, 2002)

Category:

Principal judgment

Parties:

Mary Norris (appellant / cross-respondent)
Douglas Routley (respondent / cross-appellant)

Representation:

Counsel:
D R J Toomey SC / S J Holmes (appellant / cross-respondent)
J K Kirk SC / Z Heger (respondent / cross-appellant)

  Solicitors:
Toby Tancred (appellant / cross-respondent)
Avant Law (respondent / cross-appellant)

File Number(s):

2016/66704

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Common Law

Citation:

Norris v Routley [2015] NSWSC 883

Date of Decision:

07 July 2015

Before:

Harrison J

File Number(s):

2013/111968

Judgment

1. McCOLL JA: I agree with Payne JA’s reasons and the orders his Honour proposes.

2. GLEESON JA: I agree with Payne JA. I would add the following observations in relation to the disputed aspect of the calculation of the appellant’s damages for the wrongful death of her spouse. This related to the assessment of the share of household income that would have been consumed by the appellant’s spouse but for his untimely death.

3. It may be accepted that the consumption figures applied by the primary judge when assessing the share of household income that would have been consumed by the deceased spouse were very high as the respondent implicitly conceded in its written submissions at trial. However, it must be emphasised that those figures largely reflected the assumptions made by the appellant’s own expert, Mr Gaudion, on instructions from the appellant’s solicitors. Those assumptions were based on the standard consumption percentages set out in table 9.1 of Luntz’s Assessment of Damages for Personal Injury and Death (4th ed, LexisNexis Butterworths, 2002) adjusted in Mr Gaudion’s supplementary report for the period during which the appellant’s two teenage sons remained dependents. His Honour rejected that proposed adjustment and there is no challenge to that aspect of his Honour’s reasons.

4. Notwithstanding the tender by the appellant of Mr Gaudion’s two reports, the appellant advanced a different case at trial, namely that the standard consumption figures in the Luntz tables were inappropriate, and that “some lesser rate of consumption” by the deceased spouse should be applied in calculating the appellant’s damages for the wrongful death of her spouse. The premise of that contention was that, prior to his untimely death, the appellant’s spouse had lived a frugal life as a stay-at-home father. It was submitted that it should be inferred that the appellant’s spouse would not materially change (and increase) his spending habits (had he lived) when the household income was assumed to be significantly greater in consequence of the appellant’s greater earning capacity as a specialist doctor.

5. The appellant emphasised that the monetary effect of the assumption, which his Honour accepted, was a three-fold increase in the deceased spouse’s consumption of household income between the financial year ending 30 June 2014 (in the order of $1288 per week) and the financial year ending 30 June 2020 (in the order of $3885 per week). This, the appellant contended, was simply unrealistic. At a high level of abstraction, that submission had some initial attraction.

6. However, for the reasons given by Payne JA, there was a paucity of evidence at trial from which any reliable inference could be drawn by the primary judge justifying the adoption of lower consumption figures (for the deceased spouse) than those assumed by the parties’ experts. The primary judge could only act upon the evidence before him and the inferences which could be reasonably drawn from that evidence. The evidence as to the deceased spouse’s spending habits and likely future expenditure (assuming an increased household income) was wholly inadequate to support the case advanced at trial, different as it was to that contained in Mr Gaudion’s reports.

7. In recognition of that difficulty, the appellant sought to rely on further evidence on appeal under s 75A(8) of the Supreme Court Act 1970 (NSW), seeking to demonstrate that the Luntz tables were unreliable. It was contended that the further evidence established that the Luntz tables were based on out-of-date statistical data.

8. To adduce further evidence on appeal the appellant needed to demonstrate “special grounds” under s 75A(8). The power to receive further evidence on appeal which satisfies that requirement, can be seen as providing a limited exception to the important principle of the finality of proceedings.

9. For the reasons given by Payne JA, the tender of further evidence on appeal must be rejected. While the further evidence seems credible and arguably probative, the appellant failed to establish that it could not have been discovered with reasonable diligence at the time of trial. Indeed, Mr Gaudion, the appellant’s expert, acknowledged that he had previously received papers proposing alternative (and, it may be inferred, lower) consumption figures to those contained in the Luntz tables.

10. It is not to the point, as Mr Gaudion suggested in his affidavit in this Court, that these papers had not been peer-reviewed and proposed to be included in a future edition of Luntz at the time he received them. The papers alerted Mr Gaudion to the existence of a contestable opinion that the statistical data underlying the consumption figures in the Luntz tables was out-of-date, and, accordingly, those consumption figures were an unreliable indicator of a deceased spouse’s expected consumption of household income.

11. As Payne JA explains, it was open to the appellant to obtain an expert report in relation to that alternative view at the time of trial. If that had occurred the respondent could have tested that very different evidence at trial. To allow the appellant to now rely on further evidence on appeal would open up a new factual inquiry unsuitable for ultimate determination by this Court. The best the appellant could hope for on appeal relying on the further evidence would be a re-trial limited to the issue the subject of the further evidence. However, before a re-trial could be ordered, the Court would need to be satisfied that some substantial wrong or miscarriage had been occasioned: Uniform Civil Procedure Rules 2005 (NSW), r 51.53(1).

12. It is not necessary to consider that question here because the appellant fails at the anterior point of establishing “special grounds” for the reception of further evidence. The interests of justice run both ways. The obvious prejudice to the respondent that receipt of the further evidence would cause is detailed in the reasons of Payne JA. While the categories for “special grounds” under s 75A(8) are not closed, the appellant was unable to point to any sufficient reason why the further evidence should be received in the present case.

13. PAYNE JA: This appeal solely concerns damages issues arising in a case under the Compensation to Relatives Act1897 (NSW).

14. In 2013, the appellant, Dr Mary Norris, sued Dr Douglas Routley, the respondent, under the Compensation to Relatives Act following the death of Dr Norris’ husband. Liability was admitted. The primary judge ultimately awarded the appellant damages in the sum of $21,757.

15. Dr Norris’ appeal challenges the deduction for personal consumption by the deceased made by the primary judge in calculating the appellant’s entitlement to damages. The statutory basis for the award of damages is s 4(1) of the Compensation to Relatives Act which enables the court to award damages "proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action is brought”.

16. In addition, the appellant filed a motion to lead further evidence about the appropriate percentage or figure to use as a deduction for personal consumption by the deceased into the future.

17. The application for leave to cross-appeal by the respondent challenges the primary judge’s findings in two respects about the amount of hours of domestic services the deceased would have provided to his family had he lived.

The primary judgment

18. The appellant married Terrence Michael Norris (the deceased) in 1990. They had two sons, both of whom were still at school at the date of Mr Norris’ death.

19. Mr Norris suffered from liver disease, contracted following a hepatitis C infection. He passed away on 31 May 2011, aged 52. Dr Routley was Mr Norris’ treating specialist. Dr Routley accepted that his negligent failure to refer Mr Norris for a liver transplant, or otherwise to arrange a liver transplant in a proper or timely manner, was a cause of Mr Norris’ untimely death.

20. At the time of Mr Norris’ death he was a full time stay at home father and worked casually as a gardener and landscaper. He did the majority of the housework and was the primary carer of the Norris’ two sons. At the time of Mr Norris’ death, Dr Norris was in the process of establishing her own specialist medical practice, and the primary judge found that if Mr Norris had not passed away he would have commenced working as Dr Norris’ practice manager.

21. The primary judge summarised his conclusions at [118] as follows:

1. Mr Norris would have survived until the date of Dr Norris’s retirement at the age of 65 years in 2026.

2. Mr Norris would have commenced work on 1 July 2011 as Dr Norris’s practice manager in a half-time capacity earning $35,044 per annum after tax until 30 June 2013.

3. Mr Norris would have continued to work thereafter as Dr Norris’s practice manager in a 75 percent capacity from 1 July 2013 earning $47,928 per annum after tax until 30 June 2014.

4. Mr Norris would have continued to work thereafter as Dr Norris's practice manager in a full time capacity from 1 July 2014 earning $60,945 per annum after tax until Dr Norris's retirement at the age of 65 years in 2026.

5. Mr Norris would have provided 27 hours per week of domestic and childcare services valued at $54 per hour commencing on 1 June 2011 until their younger son turned 18 notionally on 30 June 2017.

6. Mr Norris would have provided 21 hours per week of domestic services valued at $54 per hour commencing on 1 July 2017 until at least the date of Dr Norris's retirement at the age of 65 years in 2026.

7. (Subject to correction if applicable) the out of pocket costs of Mr Norris’s liver transplant would have been $84,370.

8. The care costs incurred for Mr Norris as a liver transplant recipient would have been $10,000.

9. The rates of consumption of the household income by Mr Norris were 24 percent until 31 December 2014, 28.1 percent from 1 January 2015 until 31 December 2017 and 34.4 percent thereafter. (italics added)

22. Only three of these conclusions are in issue in this appeal. The appeal solely concerns finding 9 and the cross-appeal solely concerns findings 5 and 6.

Findings re Mr Norris’ consumption (including costs of medical care)

23. The primary judge made the following intermediate findings of fact about Mr Norris’ personal consumption expenditure (including costs of medical care) had he lived (being reflected in his ultimate finding 9):

1. the primary judge held at [89]-[92] that there was no basis to depart from the dependency and consumption percentages set out in Table 9.1 of Professor Luntz’s work, Assessment of Damages for Personal Injury and Death, 4th Edition (“the Luntz table”);

2. his Honour found at [89] that the Norris household was a normal one, and dismissed the appellant’s submission that, because teenage boys consume more than average, Mr Norris’ proportion of household consumption should be reduced. His Honour found that this factor “must be taken to have informed the preparation of the Luntz schedules”. In any event, the primary judge recorded at [83] that, “In the end, Dr Norris did not pursue this rationale for departing from Luntz”; and

3. his Honour further found that there was no evidentiary basis for concluding that Mr Norris’ consumption habits were anything other than normal: see [91].

24. Turning to the costs associated with Mr Norris’ medical care, the primary judge reproduced at [110] a substantial portion of a report by Professor Gow which set out the amount of time that patients take off work after receiving a liver transplant, the frequency of consultations over time, and the cost of medications.

25. The primary judge found at [111] that it was not possible to calculate a “precise or even vaguely reliable estimate of the costs of continuing care and treatment for Mr Norris had he survived and received a transplant”.

26. In particular, there was no evidence as to whether the family would be required to bear the entire burden of such costs, or whether health insurance would cover a portion. His Honour concluded “the care costs buffer or cushion of $10,000 related to Mr Norris’ liver transplant suggested by Mr Toomey of counsel should be adopted as appropriate”.

Grounds of appeal

27. The grounds of appeal were as follows:

1. the primary judge erred by applying the consumption percentages in the Luntz table to determine what would have been the deceased’s consumption of combined household income in the particular circumstances of this case.

2. the primary judge erred by:

1. failing to recognise that the Luntz table treats, as a part of the deceased’s consumption, amounts put aside as savings for the retirement years; and

2. failing to adjust the Luntz table percentages downwards to take account of the fact that the deceased would not have consumed retirement savings.

3. The primary judge erred by finding that there was no evidentiary or other basis for departing from the percentages referred to in the Luntz table.

4. The primary judge erred by failing to give any, or any proper, weight to the evidence of the deceased’s historical lifestyle choices and consumption habits.

The appellant’s motion to lead further evidence

28. Mr D Toomey SC, who appeared with Mr S Holmes, sought to tender further evidence on the appeal. The Court rejected that tender on 6 September 2016. The following are my reasons for participating in that order.

29. The appellant sought to adduce the following evidence:

1. an affidavit of Michael Lee sworn on 19 April 2016. Mr Lee is a chartered accountant. The affidavit annexes three papers authored by Mr Lee and Ms Julia Bossert. The first of the papers is dated January 2015 and the other two are dated February 2016. The papers use statistical data more recent than that used in preparing the Luntz table to show that as household income increases the level of personal consumption of members of the household, as a percentage of the total, decreases.

2. a report of Michael Lee dated 19 April 2016. This report applies the revised percentages suggested in Mr Lee’s 19 April 2016 affidavit to the factual circumstances of the case. Mr Lee concludes that:

... the appropriate range of personal consumption as a percentage of the after-tax household income is between 8% and 9.9% as opposed to 24% to 34.4% [as appears in Luntz]. The impact of this opinion is that the value of the deceased’s personal consumption would be valued at $596,624 as opposed to $1,318,107.

Mr Lee’s report concerning consumption percentages, if applied to the primary judge’s remaining findings in these proceedings, would involve an increase in the damages payable to the appellant of $721,483.

3. an affidavit of Corey Plover sworn on 14 April 2016. This affidavit (together with Mr Lee’s affidavit) establishes that Mr Plover compiled the Luntz table. Mr Plover now endorses the revised percentages provided by Mr Lee. He stated that the revised percentages would be submitted as replacement figures for publication in the upcoming edition of Professor Luntz’s work.

4. an affidavit of Nicholas Gaudion sworn on 27 April 2016. This establishes that Mr Gaudion, who was the expert in this area called by the appellant at trial, was not aware of the proposed revision to the Luntz table at the time of the hearing.

5. an affidavit of Professor Harold Luntz sworn on 2 May 2016. This confirms that it is Professor Luntz’s intention to include the revised percentages provided by Mr Lee in the next edition of his book.

30. In support of the motion the appellant relied upon an affidavit of the appellant’s solicitor, Mr Tancred, in which he says that he was not aware of the proposed revision to the Luntz table at the time of the hearing before the primary judge.

31. Section 75A of the Supreme Court Act 1970 (NSW) provides for the admission of evidence in an appeal:

75A Appeal

...

(7) The Court may receive further evidence.

(8) Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds.

(9) Subsection (8) does not apply to evidence concerning matters occurring after the trial or hearing.

32. Although the categories are not closed, there are three conditions that must usually be satisfied in order for “special grounds” under s 75A(8) to be established: Lawrence v Gunner (No 3) [2016] NSWCA 18 at [24] per Gleeson JA; Akins v National Australia Bank (1994) 34 NSWLR 155 at 160; and Tjiong v Tjiong [2012] NSWCA 201 at [166]:

1. the evidence could not have been obtained with reasonable diligence for use at the trial;

2. the evidence must be such that there must be a high degree of probability that there would be a different verdict; and

3. the evidence must be credible.

33. The appellant made the following submissions in support of the motion:

1. on the question of special grounds:

1. admission of the Lee report, which applies the conclusions of the January 2015 paper, required “special grounds” pursuant to s 75A(8).

2. all other new evidence “concerns matters occurring after the trial” and therefore special grounds were not required.

2. in relation to the Lee report, the appellant submitted that the evidence satisfied the three requirements in Akins, namely it was not available before the trial, it was credible and it was highly probative.

1. re unavailability: It was submitted that as the appellant’s expert Mr Gaudion was not aware of the material before the trial “the further evidence may properly be regarded as ‘unavailable’ to the party seeking to proffer it on the appeal”. The appellant emphasised that the question was whether the evidence could have been obtained with reasonable diligence.

2. re credibility: It was submitted that this was self-evident given the identity of the witnesses.

3. re probative value: It was submitted that the application of the evidence in this case was “likely to make a difference of some $700,000 to the Appellant’s damages”. Further, the appellant submitted that the position reached by applying the revised tables “accords in broad terms with the Deceased’s consumption for which the Appellant argued at trial, albeit without the statistical support now contained in the further evidence”. It was submitted that the appellant ought to have the benefit of the new evidence “given that it involves no real shift in the way the Appellant put her case at trial”.

4. re interests of justice: It was submitted that damages should be assessed on the basis of current statistics rather than statistics which are now 17 years old.

34. Finally, the appellant submitted that the fact that it was “within the realms of possibility for the Appellant’s solicitor to discover the existence of the 2015 Lee/Bossert paper does not mean that ‘reasonable diligence’ would necessarily have led to its discovery”.

Consideration of the application to lead further evidence

35. The appellant submitted that the Luntz and Plover evidence concerned matters occurring after the hearing, namely, Mr Plover’s endorsement of the Lee and Bossert approach, and Professor Luntz’s decision to adopt the Lee and Bossert approach.

36. In my view, the Lee evidence, the Luntz evidence and the Plover evidence was “further” rather than “fresh” evidence. It does not contain evidence of matters occurring after the trial. This is because:

1. the Plover evidence comprised an endorsement of the approach proposed in the 2015 Lee/Bossert paper which was itself an evolution of the 2012 Lee/Bossert paper. Just as it was open to obtain an expert report in the nature of Mr Lee’s report before the trial, it was open to obtain an expert endorsement of that report before the trial; and

2. Professor Luntz’s evidence also comprises, at a level of abstraction given his avowed lack of expertise in actuarial studies, an endorsement of the expert evidence of Mr Lee, based upon Mr Plover’s endorsement.

37. Accordingly, special grounds needed to be demonstrated in respect of that further evidence.

38. To have allowed the further evidence to be tendered on appeal would, as the respondent submitted, have been to allow a party who had made no attempt to lead expert evidence of a certain kind, when unsuccessful at first instance, to have a second chance at adducing that evidence.

39. The prejudice to the respondent if the evidence was admitted was obvious. Both parties led expert evidence on this question of Mr Norris’ consumption. The experts were agreed that the Luntz table was the appropriate basis for the calculation of that personal consumption percentages. The respondent’s expert (and the primary judge) did not address any case based on Mr Lee’s work. There was no occasion to test the evidence, as no doubt would have occurred if the Lee percentages had been advanced before the primary judge. To have permitted the appellant to lead this evidence on appeal would have meant allowing the bifurcation of critical evidence.

40. It is to be noted that the appellant consented to the respondent being given a further opportunity to lead evidence on this issue if the further evidence she sought to lead was admitted. This approach, however, would have led to a completely undesirable bifurcation of the appellate process. The Court would have needed to reconvene at a later date and determine, on the basis of all of the new evidence, whether to proceed to determine the appeal or remit the matter to the primary judge. Such an approach, if ever desirable, would have been in the present case completely inconsistent with the requirement in s 56 of the Civil Procedure Act 2005 (NSW) for the just, quick and cheap resolution of the matters in dispute. It would only have encouraged attempts to re-litigate matters on appeal by tendering further evidence which could have been led at trial.

41. While the further evidence here in issue is undoubtedly credible and probative, the appellant did not establish that the evidence could not have been discovered with reasonable diligence. To the contrary, the evidence discloses that the 2015 Lee/Bossert paper referred at paragraph [29(1)] was widely available in the legal community and was published, including online, well prior to the trial.

42. Further, the evidence of the appellant’s expert at the trial, Mr Gaudion, on this appeal did not establish that he was unaware of Mr Lee’s work, but rather sought to establish a much narrower proposition, namely, that Professor Luntz proposed to adopt aspects of Mr Lee’s work in his revised work – “I first became aware of the proposed update or revision of [the Luntz table] figures when I was advised by Toby Tancred on or around 26 February 2016”.

43. On the question of whether Mr Lee’s work was available to him, Mr Gaudion said “I have vague recollections of having previously reviewed papers proposing alternatives to [the Luntz table] figures, but none that were peer reviewed and proposed to be included in a future edition of the text ...”.

44. The evidence demonstrated that the Lee evidence could have been discovered with reasonable diligence. The evidence of Mr Plover and Professor Luntz, that the Lee percentages for personal consumption would be incorporated in a new edition of Professor Luntz’s work, took the matter no further.

45. As the appellant elsewhere correctly submits, it was not mandatory for any party or the court below to use the Luntz table in reaching a conclusion about personal consumption. As it happens, both parties (at least in the expert evidence which was tendered) pressed the percentages in the Luntz table on the primary judge as the basis for making his decision. The fact that an expert, even an eminent expert such as Professor Luntz, has changed his position in a matter of significance in a case, after that case was concluded, is not of itself sufficient to demonstrate special circumstances. This is especially so where, as here, the basis of Professor Luntz’s change of position was academic work by Mr Lee that was available, and it seems known at least at a high level, to the expert for the appellant who gave evidence before the primary judge at the time he gave that evidence.

Grounds 1-4 of the appeal – Mr Norris’ consumption of household income

46. It is convenient to address the grounds of appeal together as they raise essentially the same issue, namely the appropriate allowance for Mr Norris’ consumption of household income, in slightly different respects.

Appellant’s submissions

47. The appellant’s principal submission was that the primary judge’s finding that Mr Norris would have consumed 24 per cent of the projected combined weekly household income until 31 December 2014, 28.1 per cent from 1 January 2015 until 31 December 2017 and 34.4 per cent thereafter, which percentages were derived from the Luntz table, ignored the evidence of Mr Norris’ frugal habits and modest tastes.

48. The appellant drew the Court’s attention to evidence given by Dr Norris orally in chief and by leave (as the matters were not addressed in her affidavit evidence) concerning Mr Norris’ lifestyle and spending habits to the following effect:

1. Mr Norris was born and raised in Orange in Central West NSW;

2. after completing school he worked as a labourer and a gardener;

3. Mr Norris’ eating and drinking habits were modest. He did not eat out often. He did not consume alcohol and ate healthily;

4. apart from golf, which he played once a week at a public golf course, and fishing on Lake Macquarie, he lived a simple lifestyle. He did not own a boat;

5. Mr Norris did not want to travel overseas. In their 21 years of marriage Mr Norris had been on two overseas holidays, one to Fiji, before having children, and one to Korea with their adopted Korean sons;

6. Mr Norris’ car was an 11-year-old Holden Rodeo at the time of his death. His only other significant asset was a Ducati motorcycle which required restoration;

7. Mr Norris did not dress in expensive or extravagant clothes. He purchased his clothes from discount stores such as Lowes and Rivers; and

8. even when the family’s income increased, as it did when Dr Norris first qualified as a registrar, Dr Norris did “not really” notice any change in Mr Norris’ hobbies or spending habits.

49. It was submitted that the primary judge incorrectly treated the Luntz table percentages as a default position to be displaced by cogent evidence and thereby incorrectly attributed to the Luntz table(s) “an evidentiary status they do not enjoy”.

50. Finally, the appellant submitted that the primary judge erred in finding that there was insufficient evidence to depart from the Luntz table percentages because:

... the picture painted of the deceased by the unchallenged and uncontradicted evidence formed a solid foundation for a finding that not only would he not have consumed such vast sums but that his consumption patterns were, and were likely to remain, modest.

Respondent’s submissions

51. The respondent submitted that the primary judge adopted a proper approach in treating the Luntz table as being a representation of average expenditure, which could be departed from depending upon the evidence. In Axiak v Pezzano [2002] NSWCA 65 at [57] the Court referred to the Luntz table as “a standard reference point in these cases”.

52. The Court in Axiak also said at [58]:

The determination of an appropriate dependency rate involves a discretionary judgment. Actual error needs to shown before such an assessment will be reversed on appeal.

The respondent submitted that in this case no actual error has been shown and the appellate court should not disturb the primary judge’s findings.

53. The respondent submitted the appellant’s evidence at trial:

... does not provide any basis for arriving upon a particular reduction of the Luntz percentages or a particular dollar amount that Mr Norris would have consumed. The appellant does not engage in an analysis of the data and assumptions underlying the Luntz percentages and compare them to the evidence. Nor did she tender any evidence below as to the amounts that were actually expended on Mr Norris during his lifetime as a proportion of household income.

Therefore the evidence does not support the departure from Luntz contended for.

The legal test to be applied

54. In De Sales v Ingrilli (2002) 212 CLR 338; [2002] HCA 52 Gleeson CJ at [14] provided an overview of the approach to be used in calculating damages under the Western Australian equivalent of the Compensation to Relatives Act:

Calculating damages for the loss of a reasonable expectation of pecuniary benefit usually involves calculating a primary sum and then making such further adjustments or allowances as are necessary to produce a result that gives a true reflex of the loss.  The nature of such adjustments and allowances will be influenced by the manner in which the primary sum is calculated.  In a case like the present, there are three main elements in determining the primary sum.  Each element involves speculative judgments, which cannot be made with accuracy.   The court assesses what benefits the deceased would have brought to the family, in the form of either income or the provision of services.  The court determines the share of that benefit that would have been enjoyed by a relative during the deceased's lifetime.  And the court determines the period for which a relative could reasonably have expected to receive the benefit.  For example, a surviving spouse may say that it was reasonable to expect to receive a benefit measured as a share of the deceased's income until the deceased's expected age of retirement.  A child of the deceased may reasonably expect to receive such a benefit until the child reaches an age of expected financial independence.  The primary sum awarded is the present value of a relative's total expected benefit.  The calculation of the primary sum might itself be done by a method that involves allowing for contingencies such as are taken up in actuarial calculations of life expectancy, and the present value of a future income stream.

55. McHugh J commented at [100] on the necessarily imprecise nature of the task:

Whatever figure is used for contingencies in a wrongful death claim, however, it would be a miracle if the amount awarded in a particular case got near the correct figure.  Fortunately for judges and juries – unlike investment fund managers – their assessments of future earnings and dependencies cannot be proven to be wrong.  At all events, they cannot be proven wrong unless the amount awarded bears no reasonable relationship to the figures proved in evidence. 

56. In Nguyen v Nguyen (1990) 169 CLR 245 Brennan and Deane JJ commented on the method for determining a claim for the loss of the value of housekeeping services. Brennan J said at 247:

When a claim is made for the loss of the services which would or might have been provided by a deceased spouse, the entire family situation before the death must be compared with the entire family situation after death. By that comparison, it is possible to ascertain the ‘balance of the loss’ – on the one hand, the savings made by the plaintiffs in consequence of the death and their exemption from providing services to the deceased spouse; on the other, the benefits conferred on the plaintiffs by the deceased spouse.

Deane J said at 256-7:

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 to the deceased … Against the value of the lost services, there must be debited any financial benefit accruing to the surviving spouse by reason of the death. Where the surviving spouse was the sole breadwinner, an award of damages for loss of gratuitous services will only be justified if the value of those services exceeds the benefit of being relieved of any obligation of financial support.

57. In Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 French CJ, Crennan and Bell JJ said at [13]:

It is the loss of the chance of obtaining a financial benefit from the continuance of the life of the deceased that is the subject of the action. The money value of the injury occasioned by the death is the product of the loss of the expectation of material benefits less any gains accruing from the death. The assessment of the former takes into account not only the expectation of support derived from the deceased’s income and capital but also the value of any services that the deceased would have provided had life continued.

58. Before the primary judge three relevant questions arose:

1. what benefits the deceased would have brought to the family, in the form of either income or the provision of services;

2. the share of that benefit that would have been consumed by the deceased during the deceased's lifetime; and

3. the period for which the deceased would have expected to receive the benefit.

59. On this appeal, the answers to the first and third questions are no longer controversial. It is only the answer to the second question which is relevant to drawing a conclusion about the entire family situation before the death compared with the entire family situation after the death.

60. There is no legal rule which prescribes how a party may seek to prove the share of any benefit that would have been consumed by the deceased during the deceased's lifetime. Whilst Table 9.1 of Professor Luntz’s work has been described as a “standard reference point” (Axiak at [57]), proof of the deceased’s likely consumption had he or she lived is left to party presentation of evidence in the usual way. Table 9.1 of Professor Luntz’s work enjoys no special legal or evidential status.

61. McHugh J in De Sales, shortly before his Honour expressed the view that it would be a “miracle if the amount awarded in a particular case [of the present kind] got near the correct figure”, described some of the ways of proving the likely consumption of the deceased had he or she lived thus (at [96]):

In most cases, the starting point of the inquiry will be the income of the deceased at the time of death and how much of that income went to the benefit of the relatives.  Unless the income of the deceased was very high, the evidence showing the relatives' benefit at the time of death will probably be determined by taking the deceased's income and deducting an amount to cover the cost of the deceased's food, clothing and personal expenditure.  Such evidence may range from that of the surviving spouse painting a picture of the deceased as a frugal, shabbily dressed, selfless provider for the family to more sophisticated evidence, based on Household Expenditure Surveys of the Australian Bureau of Statistics.  Once the cost of the deceased's support is deducted, judges and juries almost automatically assume that the relatives have had the benefit of the residue of the net income of the deceased.  To this residual sum will be added a sum for any services, measurable in money, which the deceased provided for the family.  Thus, there is room for large errors even in the relatively simple task of estimating the financial dependency of the family at the date of death.  But the scope for error at this stage is almost insignificant compared to the scope for error in determining the benefits that the family would have received if the deceased had survived. (italics added)

62. This Court’s role in considering the primary judge’s findings about the determination of an appropriate dependency rate (which is the necessary corollary of the share of household income that would have been consumed by the deceased had he lived) concerns a discretionary judgment.

63. Actual error needs to shown before such an assessment will be reversed on appeal: Axiak at [58]. By “actual error” the Court plainly had in mind the principles governing appellate review of a broad evaluative judgment of the kind here engaged. In Norbis v Norbis (1986) 161 CLR 513 at [5] Mason and Deane JJ said of appellate review of such a decision:

The principles enunciated in House v. The King were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal. (italics added)

Consideration

64. The calculation of damages by the primary judge had the following components:

1. with regards to the relevant period, the primary judge found that Mr Norris would have survived until the end of his anticipated life expectancy, which would have effectively coincided with the date of Dr Norris’ retirement at the age of 65 years in 2026. Mr Norris would work as his wife’s practice manager (starting part time, gradually increasing to full time) until that time;

2. with regards to the value of services provided to the family by the deceased, the primary judge found Mr Norris would have provided 27 hours per week of domestic and childcare services valued at $54 per hour from 1 June 2011 to 30 June 2017, reducing to 21 hours per week thereafter until Dr Norris’ retirement at the age of 65 in 2026. This was calculated to be valued at $713,217. The only challenge to this finding is the application for leave to cross-appeal by the respondent about the number of hours of domestic services to be provided in future addressed below;

3. it was also found that Mr Norris would have contributed $646,988 to the family’s income by way of his work as Dr Norris’ practice manager;

4. from this was deducted the percentage of the family income that the deceased would have spent. This was calculated on the basis of the combined family income of Dr Norris and Mr Norris. Dr Norris’ income (after tax) was found to be $148,740 for the year to 30 June 2011, increasing to $526,414 per annum for the year ending 30 June 2017 and each year until retirement. Mr Norris’ income (after tax) was found to be $4,400 for the year to 30 June 2011 increasing to $60,945 for the year to 30 June 2017 until retirement;

5. the primary judge accepted that Mr Norris’ position as an employee of his wife was a legitimate form of tax advantaged income splitting. That is, Dr Norris would permit sufficient flexibility in the working arrangements so that Mr Norris could continue to provide all the services to the family that he had been providing and a proportion of the family income – that being paid to Mr Norris – would effectively be taxed at a much lower rate;

6. from this overall contribution to family income, both in his salary and in the value of services he would have provided, Mr Norris’ consumption was calculated (utilising the Luntz percentages) and deducted. This calculation is the only issue on this appeal.

65. As McHugh J explained in De Sales, it was open to Dr Norris to seek to prove the appropriate deduction for Mr Norris’ likely expenditure had he lived by a number of means, including those ranging from that of the surviving spouse painting a picture of the deceased as a frugal, shabbily dressed, selfless provider for the family to more sophisticated evidence, based on Household Expenditure Surveys of the Australian Bureau of Statistics.

66. As noted at [62]-[63] above the determination of an appropriate deduction for Mr Norris’ likely expenditure had he lived involves a discretionary judgment. Error needs to be shown before such an assessment will be reversed on appeal.

67. There are a number of particular features of the appellant’s presentation of the case on this issue that need to be noted.

68. The first is that the case the appellant sought to advance before the primary judge through the expert called on damages issues, Mr Gaudion, was expressly predicated on the acceptance of the Luntz table providing the basis for the calculation of the appropriate figure for Mr Norris’ likely expenditure had he lived.

69. In Mr Gaudion’s first report, dated 15 March 2013, he calculated Mr Norris’ consumption of household income based on the Luntz table. That can be seen in Schedule 1 to the report, which contains an entry entitled “Mr Norris’ Consumption % (as per Luntz)”. These percentages are identical to the figures in the Luntz table and are used to calculate the precise amount of Mr Norris’ likely consumption had he lived. It appears that Mr Gaudion chose to use the percentages from the Luntz table himself, as a matter falling within his expertise.

70. In Mr Gaudion’s second report, dated 24 February 2014, he continued to calculate Mr Norris’ consumption of household income based on the Luntz table, although he was instructed to adopt lower rates of consumption while Dr Norris’ sons remained dependant (20 per cent as per the instruction vs 24 per cent as per Luntz). The Luntz percentage (34.4 per cent) was still used for the period during which Dr Norris’ sons were no longer dependant. The financial model reflecting these assumptions can be seen in Schedule 1 to the report, which contains an entry entitled “Mr Norris’ Consumption % (as instructed)”. These percentages are identical to the figures in the Luntz table (save for the period of dependency) and are used to calculate the precise amount of Mr Norris’ consumption had he lived.

71. The primary judge rejected the appellant’s case that by reason of the likely consumption of two teenage boys the percentage for consumption by Mr Norris should have been smaller. No challenge was made to that finding on appeal.

72. Mr Gaudion’s reports were the only expert evidence on damages led by the appellant. Those reports were addressed by expert reports filed by the respondent from a Mr Ivey dated 12 November 2013 and 27 November 2014. Mr Ivey also calculated Mr Norris’ consumption of household income based on the Luntz table.

73. The second particular feature of the presentation of this part of the case by the appellant is that the case opened by her Senior Counsel at trial was quite different and apparently not based on use of the Luntz percentages at all:

It would seem that the core issue between the parties is the likely consumption of overall household income by Mr Norris. It is the plaintiff’s case that Mr Norris’ earnings as a practice manager would have more than covered his consumption and that at the very best for the defendant, that aspect of the case would nearly cancel out his earnings, leaving still a loss to the plaintiff and her two sons in respect of the services that he would have provided to them and the household.

74. Despite this dramatic shift in approach, the appellant nevertheless tendered the expert reports of Mr Gaudion and did not seek in the expert evidence or cross-examination of the witnesses in concurrent session to support the case opened that damages payable should in effect reflect the value of the services that Mr Norris would have provided and that his income as practice manager would have “more than covered his consumption”.

75. The third particular feature of the presentation of the damages case by the appellant is that the calculation on this new approach to damages was expressed only in the appellant’s closing submissions. The appropriate deduction for Mr Norris’ consumption was expressed as being, alternatively, 70 per cent, 80 per cent, 90 per cent or 100 per cent of “his own income over his lifetime” (this last calculation was referred to by the appellant below as “Scenario Four”). His own income was identified as $60,000 per annum net being his salary as practice manager. Dr Norris also made a claim that a figure of 25 per cent of household income over Mr Norris’ lifetime should be used.

76. On appeal the “scenario” advanced as most likely was Scenario Four, which was that 100 per cent of the $60,000 per annum net earned by Mr Norris would be the full extent of his consumption, giving rise to damages (prior to adjustments) of $608,799. The effect overall can be seen from a table agreed by the parties and provided to the primary judge. If the appeal succeeds the figure $1,318,107 would be replaced with $646,988, giving rise to damages of $692,876.

Table of damages – Judgment of the primary judge

Item of calculation	Losses	Gains
Funeral and other expenses	$8,579.74	$0
Loss of income of the deceased	$646,988	$0
Loss of services from the deceased	$713,217	$0
Consumption of the deceased	$0	$1,318,107
Out of pocket costs of liver transplant	$0	$18,920.67
Care costs of liver transplant	$0	$10,000
Totals	$1,368,784.74	$1,347,027.67
Net loss	$21,757.07

Table of damages – Adjusted as per the appellant’s case on appeal

Item of calculation	Losses	Gains
Funeral and other expenses	$8,579.74	$0
Loss of income of the deceased	$646,988	$0
Loss of services from the deceased	$713,217	$0
Consumption of the deceased	$0	$646,988
Out of pocket costs of liver transplant	$0	$18,920.67
Care costs of liver transplant	$0	$10,000
Totals	$1,368,784.74	$675,908.67
Net loss	$692,876.07

77. The strongest argument in favour of the appellant’s approach in this Court is that when the percentages derived from the Luntz table are applied to the much greater income to be earned by Dr Norris in later years as a specialist doctor, the figure used by Mr Gaudion (which the appellant had tendered) showed that Mr Norris’ yearly consumption in the last two years of the model would be $202,052 and, thus, his weekly consumption would be $3,885. This, the appellant submitted, did not “measure up”. She argues the primary judge would have appreciated this was unrealistic if his Honour had converted the Luntz percentages to dollar figures in light of his findings as to household income.

78. Because this is the critical issue in this case it is necessary to set out the reasoning of the primary judge on this issue at some length. The primary judge said at [85]-[89]:

[85] Dr Routley accepted that the Luntz schedules were not fixed rules and that they necessarily yielded to the particular evidence in each case. However, he emphasised that they were commonly applied and were well supported by statistical analyses of household expenditure conducted by the Australian Bureau of Statistics. If Dr Norris wished to make a case to depart from the use of the Luntz schedules, she ought to have done so relying upon cogent evidence: see Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR 1 at 15. Moreover, even where evidence of a deceased’s consumption habits is available, it is not to be accepted unquestioningly: see, for example, Feher v Perrett Traders Pty Ltd (1988) 6 MVR 433 at 437. In that case the Court assessed the dependency of the widow and her three children at 76 percent even though the evidence put it at 83.9 percent.

[86] In this case Dr Routley submitted that there was no evidence sufficient to warrant or justify a departure from the Luntz percentages. There is no evidence of what the overall household expenditure was or what it was spent on, and there is no evidence of what proportion of the expenditure was directed to any particular member of the family. Similarly, there is no evidence about the family’s practice with respect to retained and unspent income, expenditure of anticipated superannuation funds or associated plans for retirement.

[87] Dr Norris’s case on this issue was finally based upon the proposition that Mr Norris’s consumption would only have come out of his own income, and only a proportion of it. However, this approach does not accord with applicable principle requiring all relevant gains and losses accruing to or burdening the family to be taken into account. This is referred to elsewhere in these reasons. Limited only to a consideration of the relevant evidence, Dr Routley submitted that the argument could not in any event be sustained. That is for at least the following reasons:

(1) There is no evidence suggesting or supporting the proposition that Dr Norris and Mr Norris ran their finances separately. The evidence is to the contrary. For example, Mr Norris and the family drew upon his superannuation to support them when Dr Norris was studying.

(2) Mr Norris was the primary caregiver. He would not appear to have had any significant independent income prior to his death, apart from his limited income from a small horticultural enterprise. Mr Norris would appear therefore to have been drawing upon Dr Norris’s income for his own expenditures.

(3) Dr Norris’s own evidence was in essence that from the time that she embarked upon her medical training, she and Mr Norris were engaged in a joint endeavour to raise a family, put her through medical school and establish her in private medical practice. Dr Routley insisted that there was no evidentiary or inferential support for the suggestion that Mr Norris was somehow external to or removed from that venture or that he would not have been drawing upon Dr Norris’s income as a specialist medical practitioner.

[88] In summary, Dr Routley submitted that there was no evidentiary or other basis for a departure from the percentages referred to in Luntz.

[89] I agree. The Norris family household does not emerge from the evidence as anything other than a very normal one in my opinion. Even the fact that Dr Norris was and remains the primary breadwinner does not in modern Australia set it apart as noteworthy or deserving of special comment. The respective contributions and costs to a family’s economy associated with the presence or absence of adolescent boys must be taken to have informed the preparation of the Luntz schedules. No different assumptions should be made about the costs of keeping Dr Norris’s sons. (italics added)

79. As I have said, the appellant submitted that the primary judge should have converted the Luntz percentages into dollar figures. Pausing there, it is to be noted that Mr Gaudion did convert the percentages into yearly dollar figures in his reports (which were in evidence) in a line contained in his model described as “Mr Norris’ Consumption $”.

80. It was submitted that if the primary judge had discerned that his findings had the result that Mr Norris’ weekly consumption in the last two years of Mr Gaudion’s damages model was $3,885 per week, it would have been obvious that his consumption could not have been so significant. It was submitted that House v The King (1936) 55 CLR 499 error was thereby demonstrated.

81. This was because, it was submitted, the primary judge adopted the Luntz percentages as “a default position”, only to be departed from with cogent evidence. The primary judge, it was submitted, failed to take into account a material consideration, namely whether the dollar amount of $3,885 per week (as distinct from a percentage of household income) represented a realistic estimate of the deceased’s consumption in light the evidence as to his relatively frugal consumption habits.

82. Further, it was submitted that the Luntz table assumes complete consumption of household income every week. However, the appellant submitted that “as the Respondent himself puts it, it is unrealistic in the ‘real world’ to assume that that will be so”.

83. On the assumption that 100 per cent consumption of household income is unrealistic, then an amount should be deducted from the dollar figure of Mr Norris’ consumption calculated according to the Luntz table. The amount subtracted represents “that component of the ‘consumption’ that notionally comprised savings”. That amount would have “inured to the benefit of the Appellant and her sons”. The appellant submitted that this methodology was put to the primary judge but not addressed in his Honour’s reasons. The ultimate submission was that the failure to carve out from the personal consumption figure an amount which would not actually be consumed by Mr Norris, but rather saved, resulted in an over estimation of his consumption.

84. The appellant also submitted that it was “axiomatic” that from a household income of almost $600,000 there would be savings.

85. I was initially attracted to the appellant’s submissions but I have concluded that those submissions should each be rejected.

86. The primary judge in a long and careful judgment addressed the evidence that was led before him and the submissions made to him. He made findings which in my view were open to him. His approach disclosed no error of principle. The criticisms of the primary judgment do not adequately address the real problems of proof that existed in the appellant’s case. House v The King error has not been demonstrated.

87. It was not an error of principle for the primary judge to rely upon the percentages drawn from the Luntz table. Despite the appellant’s abandonment of the Luntz table in submissions – tentatively in opening and completely in closing by Senior Counsel – the damages expert called by the appellant specifically used the Luntz table percentages. That evidence was tendered and never withdrawn. No competing expert evidence was called.

88. The primary judge was aware of the annual dollar amount for Mr Norris’ consumption that those percentages provided. It was set out in terms in the expert report tendered by the appellant.

89. Rather than indicating House v The King error on the part of the primary judge, the complaint that the primary judge failed to refer specifically to that annual figure for consumption, broken up into a weekly consumption figure, highlights the evidential failure at the heart of the appellant’s case on this issue.

90. The only evidence for the contention that, as household income increased, Mr Norris would have consumed a proportion of household income which was less than that suggested by the Lutz table, was oral evidence from Dr Norris in chief, which evidence was not contained in her statement. It only went this far:

Q: So may we take it that when you were a registrar, your income increases substantially from when you were a student.

A: Yes.

Q: Did you notice any difference in the lifestyle that [Mr Norris] led in terms of his hobbies? Habits? Spending Habits?

A: Not really. (italics added)

91. Whatever that last question and answer meant (given the three qualifications contained in the question), the answer “not really” is a weak reed upon which to mount a House v The King challenge to the primary judge’s findings which were based, in large part, on expert evidence tendered by the appellant’s Senior Counsel after she had given that evidence. Unsurprisingly, given the vague and tentative nature of this evidence, Senior Counsel for the respondent asked no questions on that subject in cross-examination.

92. The appellant led no evidence at all about what the overall household expenditure was when Mr Norris was alive or what it was spent on. There was no specific evidence led of what proportion of the expenditure was attributable to any particular member of the family. Similarly, there was no evidence about the family’s practice with respect to retained and unspent income, expenditure of anticipated superannuation funds or any plans for saving for retirement.

93. The primary judge recognised that the appellant’s case on this issue was, at least in closing submissions, based upon the proposition that Mr Norris’s consumption would only have come out of his own income, and only a proportion of it. While I accept that the appellant was seeking to find an anchor in the evidence to support a claim for damages that the expert evidence she had called did not support, the approach suggested to the primary judge was contrary to principle.

94. The primary judge’s approach was that all relevant gains and losses accruing to or burdening the family need to be taken into account. That approach was correct as a matter of principle, as the passages in De Sales and Nguyen in the High Court quoted above make clear. The appellant sought to distinguish the notion that Mr Norris’ consumption was limited to his income (on the one hand) from the notion that Mr Norris’ consumption was roughly equal to his income (on the other hand). This in my view was a distinction without a difference. The primary judge did not fall into appellable error in failing to draw that distinction.

95. The appellant led no evidence that the figure of $60,000 (being the proposed salary he would receive) would bear any relationship to Mr Norris’ likely future expenditure. Why this figure, rather than any other figure, for example $100,000 per annum, should have been adopted by the primary judge was not explained. In my view, the primary judge made no error of principle in failing to adopt this sum as identifying the limits of Mr Norris’ likely consumption had he lived.

91. Even if the appellant’s complaint about Mr Norris’ consumption being limited to $60,000 is treated as a submission about the preferable view of the facts, the suggestion that Mr Norris’ consumption for the remainder of his life would be limited to “his income” was inconsistent with the evidence before the primary judge. Dr Norris and Mr Norris ran their finances jointly. Dr Norris (and the family) drew upon Mr Norris’ superannuation to support them when Dr Norris was studying. That evidence is inconsistent with an approach to personal consumption that separates out as delineating the limits of his future consumption his income from the practice management job.

92. The evidence also disclosed that prior to Mr Norris’ death he was not earning any significant independent income. Mr Norris was drawing upon Dr Norris’s income for his own expenditures. That evidence is also difficult to reconcile with a submission that the primary judge fell into appealable error in finding that the submission that Mr Norris’ consumption for the remainder of his life would be limited to “his income” or the figure of $60,000 should be rejected.

93. The evidence of Mr Norris’ frugality provides little assistance in assessing a particular reduction or a particular dollar amount that Mr Norris would have consumed in the future. If the appellant had seriously pressed a case based on Mr Norris’ frugality before the primary judge, I would have expected evidence to be led about the amounts actually spent by Mr Norris, as a proportion of household income, and a much more precise identification of the subject of those expenditures. That is particularly so when the critical inference the appellant now seeks the Court to draw was in the teeth of the conclusion contained in the expert reports tendered by the appellant.

94. Even if I were to prefer a different figure to that adopted by the primary judge for estimating Mr Norris’ likely consumption, I can discern no error of principle in the approach he took in accepting the Luntz table which was accepted by the only experts who gave evidence before him and his giving little weight to the lay evidence, such as it was, of Mr Norris’ frugal habits. That evidence, quoted above, was threadbare at best and was not supported by any documentary or expert material. No House v The King error was exposed in the primary judge’s approach to the evidence before him.

95. As to the appellant’s “savings” submission, I am prepared to accept that on its face the Luntz table assumes 100 per cent consumption of household income.

96. However, I do not accept that the primary judge fell into House v The King error by failing to himself subtract an amount for likely savings. The evidence before him did not compel such a conclusion and there was no error of principle in failing to do so.

97. It is true that the primary judge accepted that Dr Norris’ income would increase substantially over the relevant period as she became established as a medical specialist. I accept that, in theory, substantial savings from that income were a possibility.

98. In this case, however, the appellant did not lead any evidence that the family retained income after meeting expenses, or planned to do so in future.

99. The appellant has not articulated any particular reduction to the Luntz table percentages to account for savings or identified any suggested dollar amount founded in evidence to support the existence of such savings.

100. Even if I were to prefer a different figure to that adopted by the primary judge, I can discern no error of principle in the approach he took to the Luntz table and the absence of evidence of savings or any plan to save.

Conclusion

106. This was a case where it was open to the primary judge to approach the case in the way he did. While I am sympathetic to Dr Norris’ tragic loss, that is not a sufficient basis to conclude that this Court should intervene.

107. I propose that the appeal should be dismissed with costs.

Proposed cross-appeal

108. As noted at the outset, the respondent seeks leave to cross-appeal to challenge the primary judge’s findings in two respects about the amount of hours of domestic services the deceased would have provided to his family had he lived.

109. The proposed grounds in the application for leave to cross-appeal are as follows:

1. the primary judge erred by:

1. finding that Mr Norris would have performed 21 hours per week of domestic services commencing on 1 July 2017 until at least the date of Dr Norris’ retirement in 2026; and

2. failing to find that Mr Norris would have performed 15 hours per week of domestic services commencing on 1 July 2017 until the date of Dr Norris’ retirement in 2026.

2. the primary judge erred by failing to discount the amount of domestic services performed by Mr Norris to reflect the fact that some of those services would have been for his own benefit.

110. The respondent accepted that leave to cross appeal was required as the amount in issue is less than $100,000: s 101(2)(r)(i) Supreme Court Act. Ordinarily, leave to cross-appeal to the Court of Appeal in matters involving small claims is limited to matters which involve issues of principle, questions of general public importance or an injustice which is reasonably clear: see, for example, Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 per Kirby P.

Findings re value of household services provided by Mr Norris

111. It will be recalled that the primary judge found that (at [118]):

5. Mr Norris would have provided 27 hours per week of domestic and childcare services valued at $54 per hour commencing on 1 June 2011 until their younger son turned 18 notionally on 30 June 2017.

6. Mr Norris would have provided 21 hours per week of domestic services valued at $54 per hour commencing on 1 July 2017 until at least the date of Dr Norris's retirement at the age of 65 years in 2026.

112. The primary judge made the following intermediate findings of fact relevant to the hours of household services that Mr Norris would have provided had he lived:

1. historically the burden of childcare and domestic services was cast on Mr Norris. There was “no evidentiary basis” for concluding that the “arrangement would not in effect have become entrenched by the time that the boys left home or would not have continued thereafter”: [103]; and

2. the assumption that Dr Norris’ practice would have become busier and that she would have less spare time was “available”. This “diminishes the likelihood that the domestic work arrangements would have altered”: [104].

113. The primary judge rejected the respondent’s submission that the evidence was insufficient to establish either that Mr Norris would have done 21 hours household work after the sons ceased to be dependent or that Mr Norris did all the household work (i.e. his wife, Dr Norris, would do some too). The primary judge described the estimate of 21 hours per week as “modest” and found that Dr Norris’ household work would have been “in addition to, rather than in substitution for, any of the work performed by Dr Norris”: [105].

114. The primary judge also rejected Dr Routley’s submission that, since some of Mr Norris’ household work would have benefitted him (as a member of the household) the value of that work should be discounted. His Honour said at [106]:

The burden of that submission is ... that some of the services were in fact exclusively for his benefit. That contention requires the deconstruction of the content of the services to demonstrate the proposition. That has not occurred. ... Unless the evidence reveals that all 27 hours before 2018 or all 21 hours thereafter did not benefit the Norris household in general, there is no basis for reducing Dr Norris’ claim.

Ground 1 – finding that Mr Norris would have provided 21 hours of domestic services

115. The proposed cross-appellant (respondent) submitted that the primary judge accepted that Mr Norris would have provided 27 hours of domestic services while the sons were dependant and 21 hours after that point.

116. The 27 hours figure was the subject of a report of a Ms Molloy (a registered nurse), an expert called by the appellant, who gave evidence about Dr Norris’ household and domestic situation and future needs.

117. That report provided an itemised estimate of the time spent (and to be spent) on various tasks by Mr Norris while the sons were dependant:

Child supervision and transport   6

Kitchen meal prep          7

Clothes care             3

Housework            

- General and spring cleaning   4.5

- Kitchen            0.5

- Bathrooms            1

External cleaning and maintenance   1

Gardening and mowing      2

Shopping and business      2

Total               27

118. The cross-appellant submitted that the Molloy report did not specifically address the services that would have been required after the sons ceased to be dependant. That was found by the primary judge to be 21 hours. That figure was apparently calculated by removing the top line of the breakdown above – i.e. the six hours of child supervision and transport.

119. This, the cross-appellant submitted, was an error, because having found that Mr Norris would have provided 21 hours of “communal” domestic services while the boys lived at home (as per the table above), it was submitted Mr Norris would not have spent that much time on similar “communal” tasks after the boys left home. For instance, the figure for cleaning should have been reduced because the boys’ bedrooms would have required less frequent cleaning.

Consideration of ground 1 of the cross-appeal

120. As I have said, actual error needs to be demonstrated before the primary judge’s assessment of this question will be reversed on appeal: Axiak at [58].

121. The primary judge was obliged to assess the weight to be given to Ms Molloy’s evidence and his Honour did so, giving reasons for his assessment of the expert evidence and the lay evidence and discharging his obligation as identified in Wiki v Atlantis Relocations (NSW) Pty Limited (2004) 60 NSWLR 127; [2004] NSWCA 174; and Taylor v Walker [2016] NSWCA 100 at [54] (per Ward JA).

122. The evidence before the primary judge permitted the finding made by his Honour. The proposed cross-appellant led no evidence that there would be a reduction in Mr Norris’ provision of “communal” domestic services due to the boys’ ceasing to be dependent.

123. More fundamentally, the suggestion that there would be a reduction in Mr Norris’ provision of “communal” domestic services due to the boys’ ceasing to be dependent was not put to Ms Molloy (who was not cross-examined) or Dr Norris in cross-examination by the respondent.

124. This ground of the proposed cross-appeal does not involve an issue of principle, question of general public importance or an injustice which is reasonably clear. To the contrary, the finding of the primary judge was open and no error has been demonstrated in the approach he took to this question.

125. I would refuse leave to cross-appeal on ground 1 of the proposed cross-appeal.

Ground 2 – services for Mr Norris’ own benefit

126. The cross-appellant submitted, focussing for this purpose on Mr Norris himself rather than the two children, that the 27 hour estimate in respect of a household with two adults and two children was excessive.

127. It was submitted that the primary judge erred in failing to “compare the current situation to the situation that would have obtained had Mr Norris survived”.

128. The essential submission was that the amount of domestic services required for a household of two adults and two children is more than the amount required for a household of one adult and two children. It was submitted that the appellant had “been relieved of the need (not previously fulfilled by her, but by Mr Norris himself) to provide domestic services to Mr Norris”. Therefore, it was submitted, the 27 hours estimate should be reduced.

129. The applicant for leave to cross-appeal placed considerable emphasis on a passage from the judgment of Deane J in Nguyen v Nguyen 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 to the deceased.

Consideration of ground 2 of the cross-appeal

130. Actual error needs to be demonstrated before the primary judge’s assessment of this question will be reversed on appeal: Axiak at [58].

131. As with ground 1, the suggestion that there should be a reduction in Mr Norris’ provision of “communal” domestic services due to Mr Norris not being required to perform domestic services for himself was not put to Ms Molloy or Dr Norris by the respondent.

132. There was no evidence led by the respondent that any of the services provided were for Mr Norris’ own benefit.

133. The passage from the judgment of Deane J in Nguyen is of limited relevance in the present case. His Honour was there addressing a different question where, unlike in the present case, the spouses shared domestic chores. Further, the majority in Nguyen came to a different conclusion about the availability of this head of damages in a claim under the Lord Cambell’s Act and its analogues such as the Compensation to Relatives Act.

134. This ground of the proposed cross-appeal does not involve an issue of principle, question of general public importance or an injustice which is reasonably clear. To the contrary, the finding of the primary judge was open to him and what is now submitted to be the logical conclusion to draw was not addressed by the respondent in evidence or cross-examination.

135. I would refuse leave to cross-appeal on ground 2 of the proposed cross-appeal.

Orders

136. Accordingly, I propose the following orders:

1. Dismiss the appellant’s motion dated 3 May 2016 to lead further evidence with costs.

2. Dismiss the appeal.

3. Appellant to pay the costs of the respondent to the appeal as agreed or assessed.

4. Application for leave to cross-appeal refused.

5. Respondent to pay the appellant’s costs of application for leave to cross-appeal as agreed or assessed.

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Decision last updated: 16 December 2016