Oldfield, Joanne v Dabrowski, Katherine Mary - [1982] FCA 172

Re: JOANNE OLDFIELD
And: KATHARINE MARY DABROWSKI
No. ACT G13 of 1981
Damages

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.
Kelly J.
Ellicott J.

CATCHWORDS

Damages -Assessment of damages suffered by widow and children of deceased - When appeal Court will interfere - Whether assumptions made as to future income, business expenditure, working life, and expenditure on family were realistic - Miscalculation of net disposable income - Assumption made as to likelihood of contribution from second husband - Discount rate to be applied.

Compensation (Fatal Injuries) Ordinance, 1968.

HEARING

SYDNEY

#DATE 20:8:1982

ORDER

1. The appeal and cross-appeal be allowed.

2. The judgment of the Supreme Court of the Australian Capital Territory be set aside and in lieu thereof there be judgment for the respondent in the sum of $805,000 apportioned as to the sum of $500,000 to the respondent, as to the sum of $90,000 to the child Nadya Katharine, as to the sum of $100,000 to the child Jan Alexander and as to the sum of $115,000 to the child Michal Alexander.

3. The appellant pay into the Supreme Court of the Australian Capital Territory the sum of $305,000 to be applied by that Court for the benefit of the said children in the above amounts in accordance with its Rules.

4. The appellant pay the respondent's costs of the action in the Supreme Court of the Australian Capital Territory.

5. The respondent pay the appellant's costs of the appeal.

6. The appellant pay the respondent's costs of the cross-appeal.

JUDGE1

The respondent as executrix of the will of her late husband, Dr Alexander Golski, brought proceedings against the appellant in the Supreme Court of the Australian Capital Territory under the Compensation (Fatal Injuries) Ordinance 1968 to recover damages on her own account and on account of the three children of her marriage to Dr. Golski. It is not now in dispute that Dr. Golski's death on 6 May 1978 came about as a result of the negligence of the appellant. Judgment was entered in favour of the respondent for $1,198,562.00 damages with costs. Of that sum $729,773.65 was apportioned to the respondent, $129,343.45 to the child Nadya Katharine, born 22 August 1967, $146,779.45 to the child Jan Alexander, born 11 November 1968 and $192,665.45 to the child Michal Alexander, born 13 October 1970.

The respondent was born on 21 September 1941. On 16 April 1966 she married Dr Golski who was born on 16 December 1937. On 29 January 1980, she married Wojciech Zbigniew Dabrowski and a child of that marriage, a boy, was born on 19 March 1981.

The appellant appealed, alleging in summary that his Honour the learned trial Judge erred:-

(a) in applying a discount rate of 4% in calculating the present value of prospective loss and in making an allowance for the incidence of income tax to be levied on the notional income to be derived from the investment of the lump sum made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Oldfield, Joanne v Dabrowski, Katherine Mary

Details

AGLC: Oldfield, Joanne v Dabrowski, Katherine Mary [1982] FCA 172
Case: [1982] FCA 172
Decision Date: 20 AUGUST 1982

CaseChat Overview and Summary

The appeal involved Joanne Oldfield against Katherine Dabrowski, where the primary concern was the assessment of damages awarded to the widow and children of a deceased individual. The Supreme Court of the Australian Capital Territory had previously assessed the damages, and the current appeal sought to review the accuracy and fairness of these assessments. The court was tasked with determining whether the assumptions made regarding future income, business expenditure, working life, and family expenditure were realistic, and whether there was an error in calculating the net disposable income. Additionally, the court examined the appropriateness of the discount rate applied in the original judgment.

The legal issues before the court involved a thorough analysis of the methodology used to calculate the damages, particularly focusing on whether the assumptions made about future income and expenditures were reasonable and whether the net disposable income was correctly calculated. The court also needed to decide if the assumption about the likelihood of a contribution from the second husband was justified and appropriate. Moreover, the selection of the discount rate was scrutinized to ensure it aligned with standard practices.

The court found that the assumptions made in the original judgment were not entirely realistic and led to an overestimation of the damages. The miscalculation of the net disposable income and the inappropriate assumption about the second husband's contribution further compounded the errors. Additionally, the discount rate applied was deemed inappropriate. Consequently, the court set aside the original judgment and entered a new judgment that apportioned the damages more accurately, ensuring the awards were proportionate and fair to the respective parties. The court also ordered the payment of costs associated with the appeal and cross-appeal, directing the appellant to pay specific sums into the court for the benefit of the children.

Orders

Orders of the court

1. The appeal and cross-appeal be allowed.

2. The judgment of the Supreme Court of the Australian Capital Territory be set aside and in lieu thereof there be judgment for the respondent in the sum of $805,000 apportioned as to the sum of $500,000 to the respondent, as to the sum of $90,000 to the child Nadya Katharine, as to the sum of $100,000 to the child Jan Alexander and as to the sum of $115,000 to the child Michal Alexander.

3. The appellant pay into the Supreme Court of the Australian Capital Territory the sum of $305,000 to be applied by that Court for the benefit of the said children in the above amounts in accordance with its Rules.

4. The appellant pay the respondent's costs of the action in the Supreme Court of the Australian Capital Territory.

5. The respondent pay the appellant's costs of the appeal.

6. The appellant pay the respondent's costs of the cross-appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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