Norris v Routley

[2015] NSWSC 883

Supreme Court

New South Wales

Medium Neutral Citation:	Norris v Routley [2015] NSWSC 883
Hearing dates:	22 - 24 June 2015
Date of orders:	07 July 2015
Decision date:	07 July 2015
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	See [119]
Catchwords:	DAMAGES – assessment of damages – claim for damages pursuant to Compensation to Relatives Act – where liability admitted – where losses and gains to the estate to be set off in determination of plaintiff’s claim – whether losses to the plaintiff consequent upon the death of the deceased are more or less than the financial benefits accruing after death – where calculation of damages dependent upon multiple integers
Legislation Cited:	Civil Liability Act 2002 Compensation to Relatives Act 1897 Lord Campbell’s Act 1846
Cases Cited:	Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 HL Feher v Perrett Traders Pty Ltd (1988) 6 MVR 433 Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52 Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR 1 MacArthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145 Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245 Parker v Commonwealth [1965] HCA 12; (1965) 112 CLR 295 Penrith City Council v Parks [2004] NSWCA 201 Public Trustee v Zoanetti [1945] HCA 26; (1945) 70 CLR 266 Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9; (2014) 88 ALJR 473 Victorian Railways Commissioners v Speed [1928] HCA 3; (1928) 40 CLR 434
Texts Cited:	Luntz, Assessment of Damages for Personal Injury and Death, 4th Ed
Category:	Principal judgment
Parties:	Dr Mary Helen Norris (Plaintiff) Dr Douglas Routley (Defendant)
Representation:	Counsel:  D R Toomey (Plaintiff) J K Kirk SC with Z Heger (Defendant)   Solicitors:  Whiteley, Ironside & Shillington (Plaintiff) Avant Law Pty Ltd (Defendant)
File Number(s):	2013/111968
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Terence Michael Norris was the late husband of the plaintiff Dr Mary Helen Norris. Mr Norris suffered from liver disease, secondary to a hepatitis C infection, from which he died on 31 May 2011. He was then 52 years of age. Dr Norris brings these proceedings on her own behalf and on behalf of the estate of the deceased claiming damages under the Compensation to Relatives Act 1897. It is accepted for the purposes of these proceedings that Mr Norris was a suitable candidate for liver transplant surgery that would in all likelihood have saved and prolonged his life and that his death in effect was caused by the defendant’s negligent failure in a proper or timely way to arrange it.

2. The single remaining issue requiring determination by me is the quantum of the damages to which Dr Norris has become entitled. The answer to that question necessitates the resolution of a series of competing factual disputes.

Background facts

3. Dr Norris is a medical practitioner specialising in obstetrics and gyneacology. She was born in September 1961. She married the deceased in 1990. They have two sons born in 1996 and 1999 respectively. The elder boy is in his first year of university in Melbourne and the younger boy is in year 10 at High School. They live at Eleebana near Lake Macquarie in New South Wales.

4. At the date of his death Mr Norris worked as a full-time stay at home father and casually as a gardener and landscaper.

5. Dr Norris originally trained at Royal North Shore Hospital as a nurse specialising in midwifery. She later graduated from Charles Sturt University in 1992 with a Bachelor of Health Science degree. The family relocated from Orange to Newcastle in 1997 in order to facilitate Dr Norris’s further studies. In due course Dr Norris graduated from Newcastle University with a Bachelor of Medicine degree. In 2007 she became a member of the Australian and New Zealand College of Obstetricians and Gynaecologists.

6. Mr Norris fully supported Dr Norris in her pursuit of a specialist medical career. He willingly accepted the role of full time carer for their sons. He did the majority of all household tasks even though Dr Norris would assist from time to time when her work schedule allowed.

7. Dr Norris currently works as a staff specialist in obstetrics and gynaecology at the John Hunter Hospital. She also works in her own private practice. Before Mr Norris died it had been her intention to establish and increase the workload in her private practice to four days per week whilst retaining her staff specialist position in the public system one day per week. Dr Norris currently works 15 hours per week in her private practice and two days per week as a staff specialist in the public sector. Those hours do not include out of hours attendances at deliveries and emergency consultations, or after hours commitments at the John Hunter Hospital. At the date of Mr Norris’s death Dr Norris worked a full day from 8am to 6pm on Mondays in her private practice, a full day from 8am to 6pm on Tuesdays, Thursdays and Fridays at the John Hunter Hospital, and half a day on Wednesdays from 8am to 1pm at the hospital with the balance of the day in her private practice. Dr Norris was in addition on call 62 days, including six weekends, each year in her role as staff specialist at the hospital. She remained on call at all times with respect to her private patients unless she was being covered by a colleague by prior arrangement.

8. Following her husband’s death Dr Norris gradually withdrew from public practice hours while her elder son studied for his Higher School Certificate to one fifth of a full time equivalent work load. That workload doubled after her son’s exams were completed. Dr Norris proposes to do the same thing when her younger son is in his final year of school. Dr Norris’s current work load consists of Mondays, Wednesdays and Thursdays 9am to 3pm in private practice, and Tuesdays and Fridays 8am to 5pm at the hospital. The equivalent pro rata after hours obligation in the hospital remains, as well as the 24 hour on call obligations for private patients.

9. Mr Norris assisted Dr Norris in the establishment of her medical practice. It was their joint intention that he would become her practice manager. In her evidentiary statement dated 16 December 2014 at paragraph [32], Dr Norris said that, even before he was formally appointed to or assumed the position of her practice manager, and before he became a paid employee of her business in that or any other capacity, Mr Norris did the following things:

“[32] [My husband] attended to virtually every administrative and practical task in the establishment of my private practice because I was busy working as a staff specialist. He arranged business loans with the bank, he looked for and identified premises from which I would practice, he organised a lease of those premises, he attended to advertising of the establishment of my practice, he arranged the fit out of the surgery including connection of phones and computers, plumbing, electricity and signage and he purchased furniture and plants, he identified and procured medical equipment including an ultrasound machine, examination beds, lights, as well as office equipment such as printers and photocopiers, he liaised with Medicare and the various medical health insurance funds to permit me to be paid, he established banking facilities and merchant facilities to permit me to be paid by EFTPOS or credit card, he arranged for me to be accredited to perform ultrasound procedures, he identified and hired a secretary for me, he identified and hired ultrasound staff, he communicated with my accountant in relation to all matters that were necessary to the establishment of my practice including registration GST and establishing various accounting systems, he arranged my business insurance, workers compensation and professional indemnity insurance, he arranged my income protection and life insurance, he established systems for payment of staff wages and superannuation, he arranged direct debit to procedures for payment of regular accounts and organised various systems for the running of the practice. I would not have been able to do any of this given the time that was required to work as a staff specialist.”

10. It was also the joint intention of Dr Norris and Mr Norris that he would continue to work as her practice manager. Dr Norris said at paragraph [33] of her evidentiary statement that in that capacity she anticipated that Mr Norris would be doing the following things:

“[33]…attending to payment of staff wages and superannuation, preparing quarterly BAS statements, continuing to liaise with my accountant, banks and insurance companies, attending to payment of bills and accounts, attending to general office maintenance and repairs, procuring medical and office supplies, attending to promotion of the practice and establishing and maintaining a website, liaising with medical representatives, attending to ongoing ultrasound accreditation and generally being in charge of the practice.”

11. While establishing the practice Mr Norris also attended to various tasks around the home, including looking after their children. The boys were very close to their father and he took a great interest in their lives and actively assisted them pursuing their hobbies and studies. He was the primary carer for the boys from the time when Dr Norris enrolled at the University of Newcastle and attended to the overwhelming majority of the practical tasks involved with looking after and raising them. Following his death, Dr Norris was required to do all of the things that Mr Norris had previously done. Dr Norris said that she was therefore “not able to continue with the development of [her] private practice” and that she was also required to reduce the hours that she worked as a staff specialist in public practice.

The claim

12. The general nature of Dr Norris’ claim can be gleaned from the latest version of her Schedule of Damages. Her claim is divided into three categories.

13. The first is the loss of income to the household. Despite some apparent confusion about the source of the income that makes up that part of the claim, it was ultimately, and in my view accurately, accepted that Mr Norris’s income was in the particular circumstances of this case the only relevant income requiring consideration in this category. At one stage of the proceedings, including the briefing of accounting experts to consider the losses claimed, the parties appear to have proceeded upon the basis that Dr Norris’ own income could have been important. That approach has now been abandoned, primarily but not only for the reason that s 12(2) of the Civil Liability Act 2002 would have applied to it. However, Dr Norris’s income remains important in determining the total household income and the proportion of total household income represented by Mr Norris’s contribution to it. It is also essential for the purposes of calculating the percentage of the total household income that Mr Norris would have utilised exclusively for his own purposes. The relevant losses claimed by Dr Norris in this category are therefore those caused by the disappointed expectation of a financial benefit that Mr Norris would himself have provided if he had survived.

14. The second category of loss claimed is the loss of the notional value of the domestic services provided by Mr Norris at the date of his death that he would have continued to provide to the household had he survived. The nature and extent of those services would have changed over time as the needs of the family changed. In particular, the children of Dr Norris and her husband would respectively have ceased to be dependent upon him when each turned 18 years of age. Mr Norris’s provision of these services in all respects would have ceased by no later than the end of his predicted or assumed life expectancy from natural causes as a transplanted liver recipient by reason of the associated medically informed prospect of his earlier death.

15. The third category is limited to the reasonable cost of funeral and testamentary expenses. That category is arithmetically agreed in the amount of $8,580.

The legislative framework

16. Dr Norris’s claim is brought pursuant to s 3(1) of the Compensation to Relatives Act which provides that, where the death of a person is caused by a “wrongful act, neglect or default” and that wrongful act, neglect or default would (if death had not ensued) have entitled the party injured to recover damages in respect thereof, then “the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured”. The “wrongful act, neglect or default” in the present case is Dr Routley’s negligence in failing to arrange an earlier referral of Mr Norris for liver transplant assessment.

17. Under s 4, every such action “shall be for the benefit of the spouse, brother, sister, half-brother, half-sister, parent and child of the person whose death has been so caused” and “shall be brought by and in the name of the executor or administrator of the person deceased”. Where there is no executor or administrator of the deceased’s estate or where the executor or administrator does not bring an action under the Act within six months of the deceased’s death, the action may be brought by one of the persons on whose behalf the claim may be brought: s 6B(1).

18. A Court may award damages “proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action is brought”: s 4(1). This means that the “injury for which damages are payable is not the injury [to the deceased] but to the claimant and the parties for whom she brought the proceedings”: Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9; (2014) 88 ALJR 473. Those damages are to be divided amongst the persons on whose behalf the claim is brought in such shares as the Court thinks fit: s 4(1).

19. A claim under the Act may be brought for pecuniary loss only and claimants are not able to seek damages for grief or suffering: Victorian Railways Commissioners v Speed [1928] HCA 3; (1928) 40 CLR 434 at 444; Public Trustee v Zoanetti [1945] HCA 26; (1945) 70 CLR 266 at 276; Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245 at 253; Taylor at [12]. It is the loss of chance of obtaining a financial benefit from the continuance of the deceased’s life that is the subject of the action. The claimant must establish a “reasonable expectation” of the particular benefit lost. The expected benefit may be in the form of financial support, such as the deceased’s earnings, as well services gratuitously provided by the deceased, such as housekeeping, handyman services and child care.

20. Part 2 of the Civil Liability Act imposes certain constraints on claims for damages. It applies “to and in respect of an award of personal injury damages, except an award that is excluded from the operation of this Part by section 3B”: s 11A (1). It also applies “regardless of whether the claim for damages is brought in tort, in contract, under statute or otherwise”: s 11A (2). “Personal injury damages” are defined in s 11 as “damages that relate to the death of or injury to a person”. Damages recoverable under the Act are plainly “damages that relate to the death of … a person”. No exclusion under s 3B applies in this case.

21. Section 12 of the Civil Liability Act applies to an award of damages for, among other things, “the loss of expectation of financial support”. In Taylor the Court held that this phrase refers, and only refers, to a claim under the Compensation to Relatives Act. Section 12(2) provides that, in the case of any such award, the Court is to disregard the amount by which the claimant’s gross weekly earnings would (but for the death) have exceeded an amount that is three times the average weekly earnings at the date of the award. A majority of the Court in Taylor held that s 12(2) applies to the earnings of the persons bringing the claim (and not to the deceased’s earnings). Dr Norris acknowledged in these proceedings that s 12 applies to limit the damages that could have been claimed by reference to her income.

22. Section 13 of the Civil Liability Act provides as follows:

“13 Future economic loss – claimant’s prospects and adjustments

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”

23. “Future economic loss” is not defined in the Civil Liability Act. However, the term is broad enough to encompass, in the context of a claim under the Compensation to Relatives Act, an award for the loss of a plaintiff’s own earnings and the loss of a deceased’s earnings, as well as the loss of a deceased’s domestic services. This becomes clear when one reads Division 2 as a whole. Division 2 is entitled “Fixing damages for economic loss” Division 2 then deals with a number of different forms of loss, including “loss of expectation of financial support” in s 12(1)(c). In Taylor, the majority held that this phrase encompasses a claim under the Compensation to Relatives Act for lost earnings as well as a claim for the loss of domestic services. This in turn suggests that such losses are “economic loss” within the meaning of Division 2 and that any award for such losses occurring in the future is an award for “future economic loss”. The breadth of the term “economic loss” is reinforced by s 15 dealing with damages for gratuitous attendant services and s 15B dealing with damages for loss of capacity to provide them.

24. Section 13 therefore applies to the whole of Dr Norris’s claim. It confirms that the Court is to make a determination as to her most likely future circumstances, such as the domestic services she was likely to receive, and is then to adjust the award of damages by reference to the percentage possibility that the events might have occurred but for the injury resulting from Mr Norris’s death. Section 13(2) has been described as “a statutory implementation of the practice of making a deduction in relation to future economic loss for ‘vicissitudes’, for which 15 percent is the percentage conventionally adopted in most cases”: MacArthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145 at [6]; see also Penrith City Council v Parks [2004] NSWCA 201 at [56].

25. Section 14 of the Civil Liability Act provides as follows:

“14 Damages for future economic loss – discount rate

(1) If an award of damages is to include any component, assessed as a lump sum, for future economic loss of any kind, the present value of that future economic loss is to be determined by adopting the prescribed discount rate.

(2) The prescribed discount rate is:

(a) a discount rate of the percentage prescribed by the regulations, or

(b) if no percentage is so prescribed – a discount rate of 5%.

(3) Except as provided by this section, nothing in this section affects any other law relating to the discounting sums awarded as damages.”

26. Having regard to the meaning of “future economic loss” outlined above, the five percent discount rate applies to any award for the loss of Mr Norris’s earnings and the loss of his domestic services.

Preliminary matters

27. It is not in dispute in these proceedings that Mr Norris worked casually as a gardener and landscaper and was the primary carer for the two children of the marriage. He performed the majority of the domestic duties including cooking, cleaning, shopping, household management, as well as transport of the children to and from school and sporting activities.

27. Dr Norris is an obstetrician and gynaecologist and had commenced the transition from her position as an employed staff specialist at John Hunter Hospital to operating her own private practice.

28. It is also agreed between the parties that all of Dr Norris’s losses should be set off against any gains to the household consisting of her and her sons or her alone after the younger turns 18 years of age consequent upon the death of Mr Norris. It is also agreed that Mr Norris would have been employed as Dr Norris’s practice manager but would not have commenced work as such before 1 July 2011. His equivalent full time salary at commencement would have been approximately $60,945 per annum after tax and a discount rate of five percent should apply to his future earnings in order to represent the present value of that future loss.

29. There is disagreement about whether or not Mr Norris would have worked for more than one day per week as Dr Norris’s practice manager. She maintains that the role was a full time job and that he would have been capable of performing it. Dr Routley maintains that Mr Norris would have been physically unable to do both his full time job as Dr Norris’s practice manager as well as the claimed load of domestic and child care chores. This is discussed in more detail below.

30. Dr Norris contends that Mr Norris would have worked at least until she retired at the age of 65. Mr Norris would by then on his birthday in August 2026 have turned 68 years of age. The evidence suggests that at the date of his anticipated liver transplant Mr Norris would have had a life expectancy of between 17 and 20 years being an end date of somewhere between November 2027 and November 2030.

31. These matters underpin what is the fundamental difference between the parties. Dr Norris maintains that the net effect upon the income of the household after the death of her husband was a loss of both his salary as her practice manager and the loss of his valuable domestic services as a homemaker and childcare provider. It is not otherwise in dispute that the approach taken by Dr Norris to the actual establishment of such a loss is structurally and legally sound.

32. Dr Routley maintains however that the death of Mr Norris did not deprive the Norris household of anything that produced a loss at all. In plain terms, Dr Routley contended that the benefits contributed to the household by Mr Norris during his lifetime were exceeded by the costs of supporting him as one of its members. In other words, even taking account the combination of Mr Norris’s salary on the one hand and the economic benefit of the services that he provided for no fee, for which the household would otherwise notionally have been required to pay, on the other hand, the proportion or percentage of the total household budget consumed by Mr Norris exceeded the total monetary value of his contribution in both respects.

33. Dr Routley therefore emphasised that s 4(1) of the Compensation to Relatives Act allows for the recovery of damages “proportioned to the injury” resulting from the death. The guiding principle in assessing the damages recoverable by a person claiming under the Act in respect of a death caused by tortious conduct is to assess what is required to restore the claimant to the position he or she would have been in but for the death of the deceased. This requires an assessment of both the losses and the gains resulting from the death. As was said in Zoanetti at 276-7:

“… in ascertaining the pecuniary loss resulting from [the deceased’s] death there must be taken into consideration, on the one side, the reasonable expectations of benefit upon which the claimant would have been entitled to rely, had [the deceased’s] life not been brought to an end, and, on the other side, the pecuniary benefits arising on his death, to which the claimant had a reasonable expectation, whether as of right or otherwise.”

35. So much is implied by the terms of the Act itself. Section 3(3) specifically excludes from account certain benefits, such as any sum paid under a contract of insurance following the death of the deceased. The implication is that, but for that provision, such benefits would otherwise have to be brought to account.

36. I am therefore required to assess the net loss to Dr Norris resulting from the death of Mr Norris. The net loss will not always or necessarily be a positive amount. As was observed in Speed at 444:

“It may be unpleasant to say so, but some families actually gain pecuniarily by the death of the [deceased]; and if there is no actual loss by the death, no damages, even nominal, can be recovered.”

37. Luntz has observed that even though it is a rare case where relatives make a “profit” from the deceased’s death (in the sense of being in a better financial position than if the death had not occurred), where that is the case, the court must recognise it by making no award of damages: see Assessment of Damages for Personal Injury and Death, 4th Ed at [9.2.9].

38. Several factual issues lie at the heart of these differences in approach and require determination by me. They include the following matters:

1. The probable average net annual earnings in present day terms derived by Dr Norris from her practice until retirement.

2. The probable net annual earnings of Mr Norris in present day terms derived from his work as a practice manager until retirement.

3. Mr Norris’s life expectancy at the date of his anticipated liver transplant and his projected working life having regard to the hypothetical medical issues that he would have faced if he had survived.

4. Whether Mr Norris could simultaneously have worked full time as Dr Norris’s practice manager and provided domestic and childcare services to the extent claimed.

5. Whether in the case of Mr Norris there is any basis for departing from the dependency calculations suggested by Luntz, having regard to Mr Norris’s particular needs and lifestyle.

6. The anticipated value or cost of Mr Norris’s weekly consumption of the family income during his life.

7. The value of the services that Mr Norris would have provided to the household during his life.

8. The cost of medical care and treatment for Mr Norris.

General principles – accounting for losses and gains resulting from death

39. It will in due course be necessary to determine these eight issues of fact. Before proceeding to do so, however, some further reference to the applicable principles should be made.

40. Historically the most usual Compensation to Relatives Act claim has been one by a dependent wife for damages arising from the death of her husband, who was the family breadwinner: Taylor at [14] and [53]. In that context, this process of “setting off” losses against gains usually occurs when assessing the loss of the deceased’s income. Generally speaking, the deceased’s income is calculated (after deducting tax and work-related expenses) and “set-off” against the amount that the deceased would have consumed, such as the amounts that would have been spent on the deceased’s food, clothing, general living and personal expenses, and medical treatment.

41. This case is somewhat unusual in that context. Dr Norris was the primary breadwinner and she claims for the loss of Mr Norris’s earnings, which were significantly lower than hers, as well as for the loss of the domestic and childcare services that he provided. The general principle in such cases is that all of the losses should be ascertained and then “set off” against the deceased’s own consumption costs. In circumstances where a deceased’s consumption costs exceed the total losses claimed by a plaintiff, no loss will have been sustained

42. This approach of setting off all losses against any gains finds support in the Act. Section 4(1) provides that “the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action is brought”. The claim is thus for damages resulting from the death. The stated requirement for an assessment of caused losses invokes one assessment of overall loss.

43. The question necessarily focuses attention in a case such as this on the net effect on household income. That is the conventional approach. Here, Dr Norris claims on behalf of herself and her two sons. It is necessary to compare the situation of the family if Mr Norris had not died with the situation produced by his death. That contemplates the taking account of any loss of his income and any savings or benefits to the household arising from his death, and comparing it to the hypothetical situation in which Mr Norris had not died as the result of Dr Routley’s tortious conduct.

44. This approach also conforms to the relevant and longstanding authorities. In Parker v Commonwealth [1965] HCA 12; (1965) 112 CLR 295 at 308, Windeyer J quoted with approval the following statement by Lord Porter in Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 at 623: the damages under Lord Campbell’s Act “are given to compensate the recipient on a balance of gains and losses for the injury sustained by the death”. Lord Porter went on to say: “To discover this balance gains as well as losses must be taken into account, whether there be duplication of damages or not”. The House of Lords in Davies held that amounts that would flow to dependants because of a claim by the deceased estate (under the survival of actions legislation) should be taken into account in assessing damages under a Lord Campbell’s Act claim.

45. In Nguyen, the deceased’s husband and two children brought a claim for the value of the housekeeping services lost as a result of the deceased’s death. Brennan J observed (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.”

46. Deane J observed 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.”

47. Unlike the present case, in Nguyen the claim was for lost services only. However, the observations of Brennan J and Deane JJ support the conclusion that if a deceased’s consumption costs should be set off against the value of lost domestic services where that is the only loss claimed, that gain should also be set off against the value of lost domestic services, even where the loss of a deceased’s income is also claimed.

48. To the same effect, French CJ, Crennan and Bell JJ observed in Taylor 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.”

49. The approach of setting off losses against gains finds support in the common law principles relating to the compensatory nature of an award of damages. In the context of tort, the fundamental principle governing the assessment of compensatory damages is that they are designed to put a plaintiff in the position he or she would have been in had the tort not been committed: see Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52 at [264]. That assessment requires a comparison “of a plaintiff’s damage or loss caused by the negligent conduct, with the plaintiff’s circumstances absent the negligent conduct”: Harriton at [251]. Because damage is the gist of an action in negligence, there is a “requirement that a plaintiff is left worse off as a result of the negligence complained about”: Harriton at [251]. Correspondingly, compensatory damages could not be awarded to a plaintiff who is left better off as a result of the alleged tort.

The probable average net annual earnings in present day terms derived by Dr Norris from her practice until retirement.

50. Dr Norris’s projected contribution of income to the household is an essential integer in the calculation of the losses claimed by her as the result of the death of Mr Norris. Her claim was at one time formulated as the loss of income foregone by her to replace the contribution made by Mr Norris that was eradicated by his death. Her claim is no longer put forward on that basis.

51. Nevertheless, Dr Norris’s income remains as an important fraction of the whole family income in the years of Mr Norris’s projected economic contribution to the home. Its precise calculation is, however, fraught with some uncertainties and difficulties.

52. At the date of the death of Mr Norris, Dr Norris was in the throes of converting her professional working arrangements from that of a staff specialist at the John Hunter Hospital with no private patients to that of full time medical specialist with one day per week working as a staff specialist. At paragraph [29] of her statement, Dr Norris put it as follows:

“[29] I presently work as a staff specialist in Obstetrics and Gynaecology at the John Hunter Hospital and I also work in my own private practice. Prior to [my husband’s] death it had been my intention to establish and increase my workload in my private practice to four days per week but I always wanted to remain working as a staff specialist in the public system for one day per week…”

53. The timing and realisation of that intention was obviously frustrated and delayed by the death of Mr Norris. Following her husband’s death, Dr Norris “gradually withdrew from public practice hours” while her elder son completed his Higher School Certificate to one fifth of a full time equivalent load. She later increased her public load to two fifths of a full time equivalent and proposes to adopt the same course for her younger son’s examination year.

54. This interruption to Dr Norris’s plans created corresponding uncertainties for the accounting experts. Reduction in income occasioned by these events necessarily had to be factored into calculations in a fair way. Similarly, savings or postponed losses of setting up in full time practice caused by the altered plans had also to be fairly accommodated in the resultant calculations. Even though the accountants had unrestricted access to Dr Norris’s income tax particulars, unknown and unpredictable circumstances made the calculation of Dr Norris’s contribution to the family income over the anticipated life of Mr Norris a less than scientific process.

55. I have examined the material to which the accountants have had access to the extent that it is revealed in the material that is in evidence in these proceedings. It seems to me that in the particular circumstances of this case it is permissible and appropriate to approach the calculation of Dr Norris’s expected or anticipated net income for the years until retirement by taking the net income figures produced by Mr Gaudion and described as “After Tax Annual Income – Dr Norris” between 1 July 2011 and 30 June 2020 in his Schedule 1 at page 57 of exhibit “A1”. These are also the figures conveniently adopted by Dr Routley in Table C to his written submissions. Table C is set out below.

The probable net annual earnings of Mr Norris in present day terms derived from his work as a practice manager until retirement

56. Dr Norris claims an amount representing the loss to the household of Mr Norris’s net income contribution. Various formulations of the amount of this loss are to be found throughout the pleadings, the particulars and various expert accountants’ schedules of loss. Doing the best I can I consider that the amount of the loss of Mr Norris’s income is the total of the amount of his projected net annual earnings for the years commencing 1 July 2011 and ending on 30 June 2026, but staged between 1 July 2011 and 30 June 2013 in the way assumed by Mr Gaudion. This is referred to in more detail later in these reasons.

57. Dr Routley’s expert calculated Mr Norris’s likely income as $180,220 after applying a 30 percent discount for vicissitudes. This figure is referred to in Table C as follows:

Income Mr Norris	Income Dr Norris	Total projected Income	Rate of Consumption	Consumption
31.5.11 – 30.6.11	0	11,899	11,899	24%	2,856
1.7.11 – 30.6.12	0	178,325	178,325	24%	42,798
1.7.12 – 30.6.13	0	219,077	219,077	24%	52,578
1.7.13 – 30.6.14	0	287,193	287,193	24%	68,926
1.7.14 – 31.12.14	0	168,744	168,744	24%	40,499
1.1.15 – 30.6.15	0	165,993	165,993	28.1%	46,644
1.7.15 – 31.12.17	0	1,212,750 (present value of future loss)	1,212,750	28.1%	340,783
1.1.18 – 30.6.23	257,457 (present value of future loss)	257,457	34.4%	88,565
1.1.18 – 30.6.26	2,100,370 (present value of future loss)	2,100,370	34.4%	722,527
1.7.26 – 30.6.31
Total	257,457	4,344,351	4,601,808	1,406,176
Discount 30% for vicissitudes: $180,220	Discount 30% for vicissitudes: $984,323

58. The difference between the amount for the loss of the benefit of Mr Norris’s income that is claimed by Dr Norris and the amount of $180,220 allowed by Dr Routley is a product of the different base figures upon which the parties have respectively calculated the competing amounts and the different years during which they have assumed or contended he would have worked. That is to some extent explained by the following matters.

59. First, Dr Norris’s expert accountant Mr Gaudion in his report dated 22 August 2014 has assumed that Mr Norris would have commenced working as her practice manager in a half-time capacity from 1 July 2011 earning $35,044 per annum after tax. He also assumed that Mr Norris would have commenced working at 75 percent capacity in that role from 1 July 2013 earning $47, 928 per annum after tax. Mr Norris would then have moved to full time work in Dr Norris’s practice from 1 July 2014 earning $60,945 per annum after tax. In contrast, Dr Routley’s table shows that he does not accept or allow for Mr Norris earning any income in these years and indeed not until the commencement of 2018 when the younger of the boys had left the family home.

60. Dr Norris’s staged approach to the point where Mr Norris assumed full time work as her practice manager in the financial year commencing 1 July 2014 is to be preferred in my view. Mr Norris’s premorbid involvement in the setting up of the medical practice suggests that he would have taken up his role as her practice manager sooner rather than later. The staging of his assumption of the role as practice manager realistically takes account of the needs of the children, and roughly coincides with the elder of the two becoming independent. The undiscounted sum of $257,457 is therefore in my opinion considerably understated by the amount that Mr Norris would have earned as Dr Norris’s practice manager for the five financial years ending 30 June 2012 to 2017 inclusive.

58. Secondly the undiscounted sum of $257,457 is also underestimated by reason of its projected end date. Dr Norris has proceeded upon the basis that Mr Norris would have continued to work as her practice manager until she retired at the age of 65. Dr Routley has not accepted that Mr Norris would have continued to work until as late as that.

59. As discussed elsewhere, I consider that Mr Norris would have worked to the end of his anticipated life expectancy, which would have effectively coincided with the date of Dr Norris’s retirement at the age 65. That would mean that a further three years of Mr Norris’s income would be available for inclusion in the total for his income and in my opinion should be added to the sum of Mr Norris’s anticipated net income to be used to calculate Dr Norris’s losses.

Mr Norris’s life expectancy at the date of his anticipated liver transplant and his projected working life having regard to the hypothetical medical issues that he would have faced if he had survived

63. Professor Paul Gow provided a report dated 31 October 2014 dealing with this issue. He was not cross-examined. Part of his report is in the following relevant terms:

“(f) What is the median survival for a liver transplant recipient with hepatitis C?

Survival after liver transplantation in Australia is published and made public on the Australian and New Zealand Liver Transplant Registry website. The percentage of patients transplanted for hepatitis C in Australia alive after five years is 79%, 10 years 66%, 15 years 53% and 20 years 41%. The median survival is in the order of 17 years.

(g) Would you expect improvement in survival if the patient receives successful treatment of hepatitis C?

The survival of patients transplanted for hepatitis C is inferior to many other diseases and this is due to issues relating to recurrence of hepatitis C in the transplanted liver causing early organ failure. It is expected but not yet proven that this issue will disappear as the post new anti-virals become available. What I would expect to happen is that the survival for hepatitis C improves to become similar to that of other diseases where recurrence is much less of a problem (hepatitis B and primary biliary cirrhosis). The projected survival therefore, in hepatitis C patients when potent anti-virals are available, would be in the order of 80%-85% five year survival, 80% 10 year survival, 70% 15 year survival and 65% 20 year survival with a median survival of 20 years or more.”

64. In purely statistical terms based on medical comparisons, Mr Norris would have had a life expectancy of 17 years at the date of his notional transplant operation. That estimate is the median survival figure presumably calculated by reference to a broad range of liver transplant patients with diverse medical histories, with all of the attendant and associated risks of illness, organ rejection and disability, but with hepatitis C as the common presenting cause of their liver failure. Some of the individuals would have been hypothetically better placed to outlive Mr Norris and some would not.

65. I consider that it is appropriate to adopt the median figure of 17 years described by Professor Gow as applying to Mr Norris in this case. The availability of as yet unavailable anti-virals need not be considered. Professor Gow’s evidence is that there is as yet “no black or white information about the efficacy of the use of medications used after liver transplant” and the projected difference in outcomes is only three years. These would in my analysis be years in which neither Dr Norris nor the deceased would in any event have been working so that the loss calculations from Dr Norris’s perspective could be no better.

Whether Mr Norris could simultaneously have worked full time as Dr Norris’s practice manager and provided domestic and childcare services to the extent claimed

66. Dr Norris contended that even though her husband would have worked for her as a full time practice manager, he would nonetheless have been able to carry on with the childcare and household domestic services that he had to some extent already provided and that it was anticipated he would continue to provide after he took up that employment. It seems clear that even despite his deteriorating health in the months prior to his death, Mr Norris was an active participant in arranging and organizing steps in preparation for the commencement of his wife’s private practice.

67. It is not an issue in these proceedings that Mr Norris would have assumed that role had he survived, even though his health would inevitably have been compromised to a certain extent. His survival is hypothetically predicated upon the receipt of a donor liver and successful transplant surgery in or about November 2010. The continuing need for maintenance of that precarious position is accepted on both sides. Accordingly, the physical and emotional consequences of full time employment and domestic responsibilities have to be evaluated in the light of that reality.

68. Dr Routley emphasised that a matter of importance is deciding when Mr Norris would have commenced his work for Dr Norris. Dr Routley accepted that Mr Norris played a key role in establishing the private practice. He was not paid for that work. Dr Norris accepted that once her practice had built up to six pregnancies per month she would need a full time practice manager. Dr Norris accepted that this would have been from at least mid-2011.

69. Dr Routley also stressed that Mr Norris was responsible for his work as a full time stay at home carer. On the projections provided by Dr Norris, she would have been dealing with 20 pregnancies per month by 1 June 2012 at the latest, being 24 months from the commencement of her private practice. Dr Routley argued that if Dr Norris required an effective full time practice manager for six pregnancies per month, then it would be unrealistic to suggest that she could have made do with anything less when her workload reached the higher figure. He submitted that it was “simply unrealistic to expect that [Mr Norris] could do both jobs.”

70. In that setting Dr Routley submitted that I should assume that Dr Norris would have had to employ someone else as her practice manager until the younger of her sons turned 18 in 2017. After that Dr Routley accepted that Dr Norris would have employed her husband as a full time practice manager.

71. I was simultaneously urged by each of the parties to adopt a real world or common sense view of this issue but with what I suspect was the competing anticipation on each side that in doing so I would arrive at entirely dissimilar conclusions. Dr Norris contended that Mr Norris should be found to be capable of doing both his paid and unpaid work without interference with one by the other. The only modification to that contention is to be found in the staged process by which Mr Norris would have progressed to full time work as a practice manager, achieving that status by the start of the 2014 financial year.

72. Dr Routley contended in contrast that Mr Norris could not have produced simultaneous benefits to the family at full capacity as a practice manager and as a provider of domestic and childcare services. Dr Routley emphasised that the evidence was in effect all one way on this issue and that my choice of outcomes was foreclosed by the facts in the case. That submission can be explained as follows.

73. Dr Norris gave evidence and was cross-examined about the nature and extent of the work that Mr Norris could have been expected to confront working as her practice manager. Some of that evidence was as follows:

“Q. Leaving aside who would have been fulltime practice manager, you would have needed a fulltime practice manager from at least mid-2011, would that be fair?

A. That's correct. Well, he was yes, that is correct, yes.

Q. You gave evidence this morning when my friend was asking you some questions about practice manager, you said something like, ‘No, you need a fulltime practice manager to manage that work load.’ So it's important, is it, to have someone there in the rooms overseeing the practice on a fulltime basis?

A. They are they don't have to be physically there, but think certainly have a role and the role can be on site and on site.

Q. Your husband's primary role in 2011 was as the primary care giver at home; is that a fair statement?

A. Yes, that's correct.

Q. That was the way you and he had mutually decided to arrange your family life?

A. That's correct.

Q. It reflected that that your joint intention was, wasn't it, that your husband would stay at home and be the stay at home parent at least until your second son finished the HSC?

A. Yes, that's correct.

Q. Which will, all being well, take place at the end of 2017?

A. Correct, yes.

Q. So, can I suggest to you, Dr Norris, given that, it wouldn't have been possible for your husband to be a fulltime practice manager and a stay at home parent looking after your kids?

A. I disagree.

Q. It's evidence to the Court, is it, that you expected your husband to have been a fulltime practice manager from at least mid-2011 in this universe where he had not passed away and also be the fulltime stay at home parent until the end of 2017?

A. Yes, because you can fulfill your role in a six hour day and also then you can do your job off site. So that we had software in our home, Genie software so that he could keep an eye on the practice at home as well. So you can be flexible in your role as a practice manager. It doesn't mean you have to be on site to do that eight hours a day. That's a role that has hours that can be very flexible, as long as you have a home office set up that can allow you to do that and we had that set up.

Q. It was your joint intention, was it, that he be a fulltime carer at home up till the time your second son finished his HSC?

A. Yes, that's right. That's correct.

Q. See, going back to paragraph 15 of Mr Gaudion's report at page 63, you indicated to Mr Gaudion, directly or indirectly, that you needed a fulltime practice manager running, as I said earlier, at about six pregnancies a month. Doesn't that suggest that if it was running at 20 pregnancies a month, it would have been a very demanding role, indeed?

A. Yes, it would have been a demanding role, but, you know, I think you're trying you're saying to me that he couldn't have been a primary carer, plus a practice manager which, you know, he would have been able to cope with that, because the boys well, when he died, they were 11 and 14, so they did need quite a lot of attention, but as they grew older, they do become a bit more independent, but, yes, he would have coped with being a fulltime care giver and a practice manager. He was very capable and willing to work very hard to do that. So it's not - it's doable to do both those jobs.”

74. Dr Routley emphasised that despite Dr Norris’s understandable protestations to the contrary, a “full time” job by definition excluded the prospect of anyone so employed performing tasks in competition with the hours required to work full time. Whereas that proposition might bemuse the hundreds of thousands of Australian men and women in single parent households across the country, it could at one level correspond to a common sense or real world view of what Mr Norris could have expected in his challenging role as a medical practice manager.

75. An alternative, competing and in my view preferred assessment is that Mr Norris could well have managed both roles. First, his prospective employer was his wife. Although it may not necessarily or universally be the case, having regard to the evidence in this case it seems likely, if not highly probable, that Mr Norris’s work environment and his working relationship with his employer would have been uncharacteristically friendly and industrially benign. It would surprise me if a considerable amount of flexibility were not in those circumstances one of its predominant characteristics.

76. Secondly, despite Dr Norris’s endorsement of the onerous nature of the tasks involved in performing the job, her view is to some extent belied by an examination of precisely what it involved. The individual tasks are set out in paragraphs [32] and [33] of Dr Norris’s statement and are quoted earlier in these reasons. Doing the best I can, taking into account my experience of the world and of small professional undertakings, the individual matters to which it was anticipated Mr Norris would have been required to attend were in no obvious or apparent respects particularly onerous or even time consuming. The majority of the tasks appear to be either one-off establishment or set-up tasks or ones that only required attention on an annual or other periodic basis.

77. Thirdly, the responsibilities were also not obviously related to patient numbers. Although there may be some minor exceptions to the proposition, I find it difficult to identify in paragraphs [32] and [33] of Dr Norris’s statement any single activity whose scope or content rose or fell in response to the level of patients attending the practice. Certainly income and outgoings would reflect patient numbers but I do not perceive there to be any corresponding increase in the need for practical management of the consequences.

78. Fourthly, in a related fashion, none of the tasks identified for Mr Norris as a practice manager appears to be tied to attendance at the surgery on a regular basis or at all. Home office facilities or the equivalent provision of electronic equipment is now the norm and Mr Norris could largely and conveniently have managed the job from his home. There is also no apparent requirement that the work be performed on weekdays or in normal office hours and Mr Norris would undoubtedly have had the option of seven day weeks and after hours to complete his tasks. Inasmuch as the business world is as close as the mobile telephone and the computer, a great majority of Mr Norris’s tasks as a medical practice manager with no patient/client interaction could have been performed from home or at other locations and at almost any time that suited him.

79. Mr Kirk SC for Dr Routley submitted that I could not come to such a conclusion having regard to the evidence given by Dr Norris. I disagree. She insisted that the performance of both roles was “doable.” I am otherwise not bound to conclude that her evidence was literally the last word on the issue. Approaching the matter in a common sense and realistic fashion it seems to me that Dr Norris is completely correct in suggesting that Mr Norris could have performed both jobs. It would in my opinion be unrealistic and artificially technical to treat anything said by her as necessarily foreclosing any of the conclusions I have reached on this issue.

Whether in the case of Mr Norris there is any basis for departing from the dependency calculations suggested by Luntz, having regard to Mr Norris’s particular needs and lifestyle

80. In assessing Mr Norris’s likely consumption costs, Dr Routley assumed that he would have consumed the household income in accordance with what he characterised as “the standard percentages” set out in Table 9.1 of Luntz. Relevantly these are 24 percent while two children were dependent, 28.1 percent when one child is dependent (from January 2015) and 34 percent when no children were dependent (from January 2018).

81. Dr Routley was extremely critical of both the proposition that the Luntz tables ought not to apply in this case at all and of Dr Norris’s attempts to demonstrate it. Dr Routley submitted that Dr Norris’s representatives have been driven by what he described as “an increasingly desperate attempt to avoid the conclusion [that has been] apparent from the start.” That is a reference to an email from Mr Gaudion to Mr Tancred dated 12 October 2012, part of which is in the following relevant terms:

“We have prepared a preliminary calculations [sic] in respect to a loss of financial dependency claim adopting different alternatives with respect to income of Mary and her Husband. The initial scenario involved adopting the income from Mary’s tax returns and the advised $8k per annum for her Husband and applying principles and percentage proposed by Luntz. We then looked at other alternatives such as increasing the expected salary of Mary’s Husband and the reasonable of such assumptions. If Mary’s Husband was performing sufficient work to justify a full time practice manager salary then it would also be reasonable to assume that there would be an increase in Mary’s earning as well. In all of the scenarios considered under which we considered the assumptions were reasonable, Mary’s Husband effectively consumed more of the household income than he contributed and therefore there was no loss of financial dependency.” [Emphasis added]

82. Dr Norris’s case was originally founded upon an acceptance of the Luntz tables and percentages. So much is apparent from Mr Gaudion’s first report. However, after further examination, Mr Gaudion produced a second report. The only relevant adjustment was to the consumption figures while the two boys were still at home. There was no adjustment to the 34.4 percent figure after they ceased to be dependent. That was so even though the matter had been the subject of careful consideration and discussion, including with Dr Norris herself. The resulting adjustment involved treating each of the boys as consuming four percent more each of the total household expenditure. The justification for this would appear to have been based upon the notion that “teenage boys would consume more than average”.

83. Dr Routley contended that any such adjustment was ill founded and not available on the evidence. That is because there can be no suggestion that the idiosyncrasies of teenage boys have not already been taken into account in the preparation of the Luntz schedules. In the end, Dr Norris did not pursue this rationale for departing from Luntz.

84. Dr Norris ultimately proceeded upon the basis that Mr Norris “never ate much food and apart from his golf and fishing lived a very modest, simple lifestyle.” He bought his clothes at bargain outlets. There was other evidence to suggest that Mr Norris had frugal and inexpensive tastes and habits.

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.

90. Nor is there evidence that would support findings of fact about such matters. The allocation of an extra four percent to each boy in the circumstances of this case is no more or less than a convenient arithmetical adjustment intended to reduce Mr Norris’s consumption costs by a corresponding or similar amount. It has been convincingly exposed as a means to deal with the looming prospect that the family had suffered no economic loss as a result of Mr Norris’s death. It would be perfectly legitimate if there were some factual basis for the adjustment. In the present case it seems to have been merely an unsupported accounting artifice.

91. There is also no satisfactory or convincing support for the proposition that Mr Norris’s personal habits or expenditure patterns set him apart as a statistically significant exception to the Luntz assumptions.

92. It will be apparent that in my opinion the dependency and consumption proportions referred to in Luntz should be applied in this case.

The anticipated value or cost of Mr Norris’s weekly consumption of the family income during his life

93. Dr Routley’s expert accountant calculated that Mr Norris’s consumption costs would amount to $984,323 on present day values. That sum is calculated up until the expected retirement date of Dr Norris in September 2026. No allowance has been made for Mr Norris’s consumption after that time as there is no information available from which it could be calculated. However, on the assumption that Mr Norris would not by then have been either working or alive, there is no disadvantage to Dr Norris in not exploring that as the end result would have favoured Dr Routley in any event. That figure of $984,323 is explained by Dr Routley in Table C extracted earlier.

94. However, for reasons that will be apparent, that figure of $984,323 no longer remains accurate. Having regard to my conclusions about Mr Norris’s projected income, which are not currently reflected in Table C in its present form, the figure requires adjustment to account for the increase in Mr Norris’s income before it can apply to calculate his personal consumption of family expenditure expressed as a dollar amount.

The value of the services that Mr Norris would have provided to the household during his life

95. Dr Norris claims $777,615 for the loss of Mr Norris’s domestic services based upon the following assumptions:

1. Mr Norris would have provided 27 hours per week of domestic services valued at $54 per hour commencing on 31 May 2011 until their younger son turned 18 at the end of June 2017.

2. Thereafter Mr Norris would have provided 21 hours per week of domestic services valued at $54 per hour until at least the date of Dr Norris’s retirement at the age of 65 years.

96. I have not attempted independently to confirm the accuracy of the calculation that produced the figure of $777,615.

97. Dr Routley accepted that 27 hours of domestic services would have been provided until the younger son turned 18. However, he argued that it was reasonable to assume that Mr Norris would not have commenced providing domestic services until 1 July 2011, given the likely recovery time from his liver transplant surgery.

98. Dr Routley also contended that Mr Norris would himself have received some benefit from the services that he provided to the family: see Nguyen at 256-7. He argued as follows:

1. While both children were dependent, Mr Norris would have received the benefit of 25 percent of 21 hours per week (i.e. 5.25 hours per week) so that Dr Norris and her sons could only be compensated for the loss of 21.75 hours per week (i.e. 27 hours minus 5.25 hours).

2. While one child was dependent, Mr Norris would have received the benefit of 33.33 percent of 21 hours per week (i.e. 7 hours per week) so that Dr Norris and her sons could only be compensated for the loss of 20 hours per week (i.e. 27 hours minus 7 hours).

99. Dr Routley submitted that there was insufficient evidence to establish that Mr Norris would have provided 21 hours of domestic services per week after the children ceased to be dependent and that it was likely that the required hours of communal services would have reduced once that happened. Moreover, unsurprisingly, there were some chores that Dr Norris did herself. Dr Norris said that Mr Norris was “the primary care giver in our household” but she agreed that she did “bits and pieces from time to time…once in a while if [she] wasn’t working.” The children both indicated in their statements that Mr Norris had done “most” of the work around the house, with the exception of the period when Dr Norris had been doing her specialist training.

100. Dr Routley conceded that Mr Norris would have been employed full time from 1 January 2018 after the younger boy ceased to be dependent. However, he submitted that it was unrealistic to suggest that the full burden of domestic duties would have fallen on him, over Dr Norris, during that period. That was said to be so given that the evidence suggests that Mr Norris enjoyed significant leisure time playing golf and fishing once each week when healthy prior to his death. Dr Routley submitted that that regime would have continued. Dr Routley submitted that in any event the duties would have been shared by at least the retirement of Dr Norris in 2026.

101. In these circumstances Dr Routley calculated that an amount of $388,405 should be allowed for Dr Norris’s claim for the loss of domestic services.

102. In my opinion that sum underestimates the value of the likely services that would have been provided. This is for a number of reasons.

103. First, the historical structure of the family from at least the time of the decision to support Dr Norris in her medical studies was such as to cast the burden of responsibility for childcare and domestic services upon Mr Norris. By the time of the events that generated these proceedings, nothing about that arrangement, with the exception of Mr Norris’s assumed health related difficulties in maintaining his role, had changed. There is no evidentiary basis in my opinion for concluding either that the arrangement would not in effect have become entrenched by the time that the boys left home or would not have continued thereafter.

104. Secondly, the available assumption that Dr Norris’s practice would have become busier over the years as her experience increased and her reputation became more widely known in my opinion diminishes the likelihood that the domestic work arrangements would have altered. The progressive reduction in Dr Norris’s spare time as her work increased rather suggests that her ability or inclination to assume a greater role in domestic chores would have been more likely to diminish than expand. The opposing view is counterintuitive. In a related way, the reduction in the number of hours of domestic work required following the boys’ departure from the household would in my view have increased the likelihood that Mr Norris would have maintained his monopoly on the provision of domestic services. The house would by then have consisted of only two people, thereby further reducing the prospect that Dr Norris would have become a greater contributor to the reduction of Mr Norris’s workload.

105. Thirdly, I do not accept that the 21 hour estimate is sufficient to account for all of the domestic services that the Norris household would have required after the children left. The average of three hours per day seems to me to be modest as an estimate of the time required to perform the work that it contemplates. To the extent that Dr Norris became involved in domestic chores it seems likely to me that they would have been in addition to, rather than in substitution for, any of the work performed by Mr Norris. The boys’ evidence that their father did “most” of this work supports that conclusion.

106. Fourthly, it is beside the point that some of the services provided by Mr Norris may have coincidentally been of some benefit to him. The burden of that submission is not in truth that some of the services provided a coincidental benefit to him but 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. As far as the evidence currently stands, Mr Norris provided services of a kind that benefited the household, even if he benefited personally from their provision. 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’s claim.

107. It will be necessary in due course for the parties to calculate the monetary value of these services consistently with my findings in the way described later in these reasons.

The cost of medical care and treatment for Mr Norris

108. It is uncontroversial that in assessing the losses and gains resulting from Mr Norris’s death, I am required to take into account his own consumption costs. Dr Routley accepted that that included his general living expenses but went further to submit that in this particular case that should include the anticipated expenses that would have been incurred in order to treat Mr Norris following his liver transplant.

109. Dr Norris opposed that course. She contended that the evidence relied upon by Dr Routley in this respect neither establishes that the medical treatment for which he contends would have been necessary, nor that it would have cost what is alleged. The evidence also does not establish the quantum of any care costs for Mr Norris in the period between the date of the anticipated transplant operation in November 2010 and 1 July 2011, which is the agreed date upon which Mr Norris would have returned to his active work inside and outside the home.

110. The material from which any conclusions about these posited costs can be drawn is once again the report of Professor Gow. Relevantly he provided the following information:

“(b) What would be his likely care needs following discharge from hospital by reference to the length of time and extent of his care needs?

Again in response to this question the recovery course period varies considerably between patients but I will try and describe an average recovery period.

Typically patients discharge from hospital after about 14 days. For the next 3-4 weeks we would typically see patients two times per week in our post-transplant clinic. Patients for the first month after discharge patients would need somebody with them for most of the day for most of that month to assist with their physical needs, driving and coordinating outpatient investigations. By approximately six weeks after transplantation we would be seeing patient fortnightly and by three months after transplantation we would be seeing people 3-4 weekly.

We would normally suggest to patients that they are not safe to drive for the first three months after transplantation because of issues relating to their general weakness and side effects from medications. In most patients we would not expect them to be able to return to work within the first six months after transplantation but would expect the majority of patients to return to work between 6 and 12 months after a successful liver transplant.

During the first few weeks of discharge from hospital, patients would need significant assistance at home with their activities of daily living. Some may need minor assistance with dressing. People would need assistance with all food preparation and transport to and from hospital. We would expect patients however to be otherwise to self-caring at home.

(c) What would be his post-transplant need for ongoing medical follow up?

After the first few months most of the acute medical issues have resolved and we would be seeing patients roughly 3-4 weekly from this period. By one year after transplantation we would be seeing patients every 2-3 months in clinic. Stable patients at five years we would be seeing at six months and this would be the general minimum required for post-transplant outpatient review.

In well stable patients there [sic] general day to day health needs would be met by their GP and not necessarily specifically complicated by having a liver transplant. Patients outside of the first few months after transplantation would be expected to be having blood tests at a minimum of every four weeks within the first year and every three months after the first five years for ongoing review.

(d) What would be his need for ongoing medications to avoid organ rejections and what would be the likely cost of these medications?

Patients after liver transplantation need lifelong immune suppression therapy. The immune suppression therapy changes with time. In the first 3-6 months after transplantation patients are typically on three different immune suppression medications in addition to a number of other medications to prevent infection, ulcer disease etc. However, these drug needs reduce significantly with time, and a hepatitis C patient at one year may just be on two medications and someone at five years may just be on one medication.

The pharmacy costs for typical patient are $36.90 per script dispensed per medication. Each medication script would supply the patient with 2 months medication. Once a patient has spent $1400 in a calendar year, the script cost per medication changes to $6. In the first year after transplantation we would expect the majority of patients would reach this $1400 mark. In the second year after transplantation patients may be spending in the order of $800 for their pharmacy costs and in the fifth year maybe $200-$400 for their pharmacy costs.”

111. A precise or even vaguely reliable assessment of the costs of continuing care and treatment for Mr Norris had he survived and received a transplant is not possible. On the other hand, practical recognition must be given to the fact that Mr Norris’s hypothetical survival was only as a seriously ill and vulnerable organ recipient in constant need of medical assistance and monitoring. The course that his individual maintenance would have taken is however necessarily a matter of barely educated fortune telling. I have no information about Mr Norris’s health care insurance arrangements or whether or not or to what extent he or the family would have been out of pocket concerning these costs. In my opinion, the care costs buffer or cushion of $10,000 related to Mr Norris’s liver transplant suggested by Mr Toomey of counsel should be adopted as appropriate.

112. I do not understand there to be any dispute that the costs of the liver transplant surgery itself would have been $84,370. However, once again I am uninformed about whether that sum represents the total cost to the family after medical insurance refunds or is the gross cost of the whole procedure. If there is continuing disagreement about this item it can be determined and taken into account in the final calculations that I will require the parties to perform.

Miscellaneous

113. First, although I was urged by Dr Norris to make findings concerning Mr Norris’s superannuation, I consider that the submissions about this topic were misconceived. I have accepted a net annual income after tax for Mr Norris of $60,945 in his years of full time work as a practice manager. That net figure is predicated upon a gross salary of $70,000. Tax and superannuation deducted from that gross salary at applicable rates would presumably together produce a sum of less than $60,945. There has therefore been no disadvantage to Dr Norris as the result of any failure separately to consider loss of superannuation benefits. I remain of the view, which I put to Mr Toomey during submissions, that if one notionally accepts, as I have, a life expectancy of 17 years coinciding with the year Dr Norris turns 65 and retires, the issue is hardly one of significance in money terms in any event.

114. Secondly, I am not satisfied that I have had the advantage of sufficient argument or submissions on the question of the appropriate deductions for vicissitudes in all of the places where they affect the calculations of losses. If it appears to be necessary, that topic can be further explored following, or as a prelude to, performance of the calculations that I propose to require the parties to perform.

Findings and conclusions

115. The written submissions prepared by Mr Kirk also contained a Table E. That table is as follows:

Item of calculation	Losses	Gains
Funeral and other expenses	$8,579.74
Loss of income of the deceased	$180,220
Loss of services from the deceased	$388,405
Consumption of the deceased	0	$984,323
Out of pocket costs of liver transplant	0	$84,370
Care costs of liver transplant	0	$34,906
Totals	$577,204.74	$1,103,599.00

116. The only figure in that table that remains current is the sum of $8,579.74 for funeral and other expenses. All other sums will require recalculation.

117. I do not understand there to be any dispute that Table E accurately provides a framework for the necessary comparison of accumulated or anticipated gains and losses to the Norris household consequent upon Mr Norris’s death, even if the sums included in it are in several respects either in contest or an inaccurate reflection of the corresponding conclusions that I have reached about them or both. In any event I consider that the accounting of gains and losses contemplated by the table accords with the method of calculation described in chapter 9 of Luntz.

118. I have not performed the final calculations utilising the sums or multipliers generated by my findings and conclusions. The disposition of this case will require a reworked version of Table E substituting figures derived from calculations drawn from my findings. Those conclusions and findings can be summarised 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.

1. 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.

2. 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.

3. 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.

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

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

6. The rates of consumption of the household income by Mr Norris are 24 percent until 31 December 2014, 28.1 percent from 1 January 2015 until 31 December 2017 and 34.4 percent thereafter.

Orders

119. I propose at this stage to do no more than to relist this matter for directions and final orders on a date to be arranged in consultation with my Associate. I will direct the parties in the meantime to prepare a document in the form of Table E incorporating the respective calculations informed by the findings and conclusions made or reached by me. I will also hear any argument or submissions that either party wishes to make about the application of discounts for vicissitudes where appropriate.

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Decision last updated: 07 July 2015