Pastras v Amaca Pty Limited
[2009] NSWDDT 3
•24 February 2009
Dust Diseases Tribunal
of New South Wales
CITATION: Pastras v Amaca Pty Limited [2009] NSWDDT 3 PARTIES: Christos Pastras as legal personal representative of the Estate of the Late Dionysios Pastras
Amaca Pty LimitedMATTER NUMBER(S): 7252 of 2007 JUDGMENT OF: Kearns J CATCHWORDS: DUST DISEASES TRIBUNAL :- compensation to relatives
Wrongs Act (Victoria)
loss of services on death of deceased
whether dependants to be compensated for loss of tangible benefits provided by the deceased
whether loss to be measured by commercial value of time spent by deceased in undertaking services or by commercial cost of replacing his labour or by commercial value of tangible benefits provided by the deceased
services included gratuitous labour to a business owned and operated by a dependant and non-dependant
whether value of loss of that gratuitous labour to be compensated on the basis of the loss to the business or the loss to the dependantLEGISLATION CITED: Wrongs Act 1958 (Victoria) CASES CITED: Nguyen v Nguyen (1990) 169 CLR 245
Black v Walden [2008] NSWCA 108
NSW Insurance Ministerial Corporation v Willis (1995) 35 NSWLR 668
Biddulph v Lenegan BC9900509, Court of Appeal, WA
K v J.M.P. Co Ltd [1976] QB 85
Johnson v Ryan [1977] 1 NSWLR 294
Radovanovic v Motor Vehicle Insurance Trust [1980] WAR 105
Dodds v Dodds [1978] 1 QB 543
Gullifer v Pohto [1978] 2 NSWLR 353
Roads & Traffic Authority v Jelfs (2000) Aust Torts Reports 81-583 (Court of Appeal, NSW); (2000) 7 Leg Rep SC 3 (HCA, special leave refused)
Henry v Perry [1964] VR 174
R v Criminal Injuries Compensation Board, ex parte K [1999] QB 1131
De Sales v Ingrilli (2002) 212 CLR 338
Watson v Burley (1962) 108 CLR 635
Nicol v Rabbitt [2000] QCA 287
Walden v Black [2006] NSWCA 170; [2008] NSWCA 108TEXTS CITED: Assessment of Damages for Personal Injury and Death, 4th Edition DATES OF HEARING: 10/02/2009, 11/02/2009
DATE OF JUDGMENT:
24 February 2009LEGAL REPRESENTATIVES: Mr P Semmler QC with Mr S Tzouganatos, instructed by Turner Freeman, appeared for the plaintiff
Mr D J Russell SC, instructed by DLA Phillips Fox Lawyers, appeared for the defendant
JUDGMENT:
The claim
1. Dionysios Pastras (the deceased) died on 5 October 2006 as a result of contracting mesothelioma following exposure to asbestos. His death was caused by the negligence of the defendant. Liability is admitted. The matter falls for assessment of damages only. This is a claim by the deceased’s dependants under the Wrongs Act 1958 (Victoria). The claim is brought by the plaintiff, Christos Pastras, the son of the deceased on his own behalf and for the benefit of his mother, Ioanna, and his sister, Olga.
The legislation
2. The relevant sections of the Wrongs Act are s16 and s17 and are as follows:
“16. Whensoever the death of a person is caused by a wrongful act neglect or default and the act neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof,
then and in every such case 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.
17. (1) Every such action shall be for the benefit of the dependants 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; and in every such action the jury or the court if the trial is without a jury may give such damages as they or it think proportioned to the injury resulting from such death to the parties
respectively for whom and for whose benefit such action is brought; and the amount so recovered after deducting the costs not recovered from the defendant shall be divided amongst the beforementioned parties in such shares as the jury or
court by their or its verdict find and direct.
(2) In subsection (1) the word dependants means such persons as were wholly mainly or in part dependent on the person deceased at the time of his death or who would but for the incapacity due to the injury which led to the death have been so dependent.”
3. A submission was made querying whether the claimants were dependent on the deceased. The issue is a question of fact. I think the facts and circumstances which I detail in the reasons following establish that the claimants were dependents within the meaning of s17.
Background
4. The deceased was born on 3 February 1940 on the Greek island of Zakynthos. There, he went to school until about 13 years of age. Then, he worked on the family farm until 1965. In 1965, the deceased migrated to Melbourne. There, he worked successively in a number of different jobs. First, he was picking grapes. Then, he worked on the Ford motor vehicle production line. Then, he worked for Golden Top Bakery and then, from 1968 to 1973, he worked for Thermalite. It was when working for Thermalite in Victoria that the deceased was exposed to asbestos and this exposure resulted in his death. The matter has proceeded on the basis that it is the law of Victoria which governs the assessment of damages.
5. In 1966, the deceased married Ioanna. He was still married to Ioanna when he died. There were three children of the marriage – Vicki, in respect of whom no claim is made, Christos, who was born on 20 January 1971 and who is the plaintiff and Olga who was born on 6 February 1980. The plaintiff is married with one son. Olga is single. Vicki is married to George Tamaresis.
6. In 1973, the family returned to the island of Zakynthos. The deceased bought a truck and operated as a courier until about February 2005. His work in that business is no part of this claim as he had ceased doing it before he suffered the illness that led to his death. Apart from driving his truck, the deceased also undertook other activities and it is those activities that form the subject matter of this claim. Those activities have been dealt with by the parties in three categories:
(a) the maintenance of the family home at Abelokipi and its grounds, gardens and animals;
(b) the maintenance of the Pastras Studio apartments and its grounds; and
(c) work in the business of operating boat tours in Laganas Bay, conducted by the plaintiff and George Tamaresis.
7. Before the deceased died, he, Ioanna, Olga, the plaintiff and his wife lived in the same house in Abelokipi which is a town on the island of Zakynthos. I accept that they were a close-knit family unit. The division of tasks was essentially that the women took care of the internal duties in the house and the males looked after the outside work.
8. The deceased became ill with symptoms of mesothelioma on 25 July 2006. From then, he was unable to undertake tasks that he had been performing up until then.
Maintenance of the family home at Abelokipi and surrounds
9. The family home is a two storey house in the village of Abelokipi. It is owned by the plaintiff. The plaintiff and his wife lived upstairs and the other members of the household lived downstairs. The house is on a property of 15,000 square metres. On the property is an olive grove of about 250 trees and crops including potatoes, tomatoes, onions, lettuce, broccoli and cauliflower. There are animals on the property including goats, a cow, rabbits, chickens and dogs. The goats, rabbits and chickens were used for meat. The goats were also used for milk and the chickens for eggs and the cow was used for milk.
10. The deceased worked around the property undertaking maintenance of the house, planting and tending to the crops, feeding the animals, maintaining and picking the olives and various other tasks.
11. The plaintiff assisted in this work, but says that the deceased did most of it. His estimate is that his father spent about 7-8 hours per day from November to March and about 2-3 hours per day from May to October looking after the house and the property.
12. No criticism can be made of the fact that the grounds surrounding the home consisted of olive trees, vegetable patches, grass and held animals. The grounds and surrounds were large and they plainly needed a good amount of care and maintenance. The plaintiff claims for the loss of the deceased’s services in attending to these matters. The claim is put on the basis that the dependants are entitled to damages assessed purely and simply on the basis of determining the number of hours the deceased worked on these matters and then putting a commercial value on those hours. The defendant submits that it is necessary to determine what tangible benefit was lost by the dependants by reason of the deceased’s death. I accept that the defendant’s submission is supported by Nguyen v Nguyen (1990) 169 CLR 245. The defendant further submits that the tangible benefit was the product of his labour, for example, olive oil from the olive trees, bread from the wheat and vegetables from the garden. They were tangible benefits, but in my view, not the only tangible benefits from the deceased’s labour. The ground and surrounds of the home were large and they had to be kept in good order and condition. To use part of the grounds to grow wheat was a reasonable exercise. The reaping of the wheat and other care and attention in the growing of the wheat was an exercise in keeping the grounds and surrounds in good order and condition and, to that extent, was a tangible benefit. The same may be said of the olive trees and other things growing on the property.
13. The defendant also submitted that the tangible benefit that was lost was the loss of what had been achieved by the hours of labour undertaken by the deceased. In the way I have analysed tangible benefit in the preceding paragraph, the loss of tangible benefit is the loss of the deceased’s labours in keeping the property and surrounds in good order and condition. In my view, the dependants are entitled to be compensated for that loss. I do not need to decide whether the test in calculating that loss is the hours reasonably necessary to do that or the hours in fact undertaken by the deceased because I have come to the view that the hours the deceased undertook in the care and maintenance of the family home and its surrounds were hours reasonably necessary to do the task.
14. That brings me to the question of the hours the deceased undertook in that task. The plaintiff submitted that the defendant did not challenge the plaintiff’s or Olga’s evidence on this. I do not think that puts the defendant’s position fairly. Olga was not cross-examined, but there was little point in a repeat cross-examination on matters on which the plaintiff had been cross-examined, and the plaintiff was in a better position to give the evidence than Olga was. I do not draw any adverse inference against the defendant by reason of Olga not being cross-examined. The plaintiff was cross-examined about the hours undertaken by the deceased in his work in and around the property and its surrounds. Further, cross-examination was not necessary for the defendant to make some of the submissions it makes on this point. I shall come to it later, but I find much of the evidence on the hours the deceased worked on the home and grounds to be unsatisfactory.
15. It is necessary to work out the number of hours the deceased spent working on the property. I do not think the evidence bears out the plaintiff’s assertion in paragraph 11 above. In paragraph 44 of Exhibit A, the plaintiff sets out in some detail, the deceased’s daily routine throughout different parts of the year. This is at a time after the deceased had stopped driving his truck. The deceased’s labours in that time are a useful guide because he had ceased driving his truck about 18 months before he became affected by symptoms of mesothelioma. That time provides a better guide than his daily routine when he was driving the truck. In paragraph 44, the deceased’s daily routine is set out to the following effect:
(a) from November to January, being the olive picking season, from 5.30am, he spent about one to two hours feeding animals and doing odd jobs around the farm;
(b) from about 6.30 or 7.00am, he started tending the olives. There is already a tendency here for some overlapping and double-counting of time because if these times are correct, the deceased could not have spent two hours (as allowed in (a) above) undertaking the feeding of animals and doing odd jobs around the farm. This is but an illustration of how assessments in these matters necessarily must be of a broad brush approach. The deceased tended to collecting the olives until about 1.00 or 1.30pm;
(c) from about 1.00pm, he had lunch and a siesta until about 2.00 or 2.30pm;
(d) from about 2.30pm, he then undertook hunting, fishing, maintenance and painting of the Pastras apartments and the old house there and the catamarans and work on the farm. I take that reference to “work on the farm” to be work on the grounds surrounding the home at Abelokipi. There is no definition here of how much time was spent working on the farm. This is a matter of some importance because the deceased spent an amount of his time (how much is not clear) in activities that do not sound in damages, for example, hunting and fishing. He did a lot of fishing (T10.06).
16. If this evidence is correct, then the deceased spent seven to nine hours per day in this period doing work around the family home, plus whatever hours he undertook doing different jobs after 2.30pm. In his schedules of damages, the plaintiff claims for six hours a day in the harvesting of olives and for eight hours a day working around the family home and property from November to March (this being additional to the six hours for olive harvesting) and one and a half hours a day working in and around the Pastras apartments (also additional to the olive harvesting).
17. In addition to the hours described in paragraph 15, the plaintiff gave evidence of the deceased undertaking grass cutting. I find that evidence to be unsatisfactory. The evidence shifted on this from taking a few days to cut it (T18.47) to a couple of days to cut it (T19.05). In the winter months, when the grass grew more, there was no differentiation between the olive season and the non-olive season as to the time taken. To the extent that the evidence was meant to convey that it took whole days to cut the grass, I reject it. That was plainly impossible in the olive season. Even if the evidence was meant to convey that it took a number of working days, being eight hours, I reject it. Again, that was not humanly possible in the olive season. On the other evidence, the deceased could not have started before 2.30pm and eight hours would have him working until 10.30pm and that assumes he did nothing at the Pastras Studios or Laganas Bay which were about eight kilometres away. The evidence a little later (T19.09) tended to modify this by suggesting that the deceased may have spent only a few hours on the task. Further, the evidence did not disclose how long the winter months lasted, to what extent the deceased was cutting grass less frequently in the summer months or even whether it might have taken less time to cut in the summer months because it had not grown so quickly. I find the evidence about the cutting of the grass to be unsatisfactory because I do not think it provides a sufficiently sound basis on which to make any attempt to assess accurately the time the deceased spent on the task and it does leave an impression that the tendency was for the plaintiff to inflate the time his father spent on the task. In saying this, I should say that my views about this evidence are not based on any suggestion that the plaintiff set out to deceive the Tribunal. Not surprisingly, the plaintiff saw his father in a fairly admiring light. He was his close friend as well as his father and he spoke admiringly of him in evidence. I think these matters are likely to have influenced the plaintiff’s perception of the extent of the work his father did in and around the property. No doubt the task was time consuming and I think the best I can do is allow five hours per week for this task spread over the whole year.
18. The evidence supports the claim in the plaintiff’s schedules for the number of hours involved in harvesting the olives and I shall allow that. It does not support the claim for eight hours’ work a day in and around the family home. For the olive harvesting period, for services other than cutting lawn, the evidence does not support more than one to one and half hours per day in the morning and some unspecified time in the afternoon. I think it is reasonable to allow three hours per day for the period November to December.
19. After the olive harvesting period, the claim is for eight hours per day for work on the home and surrounds until 31 March. Again, in my view, the evidence does not support this. Paragraph 44(b) of Exhibit A states that the deceased worked on the house and property for about three hours from 6.30am. In the period immediately preceding this, the work took one to one and a half hours. Why it now took three hours is not explained. No doubt more time was available, because the olive harvesting was over and perhaps jobs were being attended to that could not be done because of lack of time during olive harvesting. Again, I allow three hours a day from January to March.
20. Thereafter, the evidence is sparse as to anything the deceased did on the house or property. No doubt, from time to time, some more work was done during the day. I think it is reasonable to allow three hours per day overall. This, then, allows 15 hours per week each week over the whole of the year for work the deceased did in and around the family home. This is additional to the olive harvesting and cutting lawn. I am satisfied that these are the hours actually worked by the deceased in and around the family home and that the hours to that extent are reasonable.
21. There were some suggestions that some of the activities could have been carried out more quickly and efficiently with the use of some mechanical aids or more efficient mechanical aids, but I do not think the evidence went far enough to suggest that those alternatives were practical and, in any event, the mere fact that some activities could be carried out more quickly and efficiently with mechanical aids does not of itself lead to the conclusion that the hours spent by the deceased in carrying out the activities he did were unreasonable. I am of the view that the hours spent by the deceased in his various activities in and around the house were hours reasonably spent.
22. Accordingly, as earlier indicated, it is not necessary here to try to resolve the debate as to whether the dependants are entitled to damages for hours actually spent by the deceased in performing services or whether the entitlement is limited to hours reasonably spent to get the jobs done.
23. One attack on this part of the claim was that the olive harvesting was done by a number of people. I do not think this is the test. The test here lies in the value of what the deceased did and what the dependants lost by his death. Presumably, if others were not assisting in the harvest, the deceased would have been required to spend more hours doing the task he did.
24. Turning, then, to the plaintiff’s schedules of damages in respect of this aspect of the claim, I allow the claim in respect of the olive picking season as per the schedule, being $17,010 for the past and $36,027.42 for the future. The figures are calculated on the basis of replacement labour at $15.00 per hour. The evidence supports that as a reasonable figure. The plaintiff’s schedules claim damages in Australian dollars. Strictly speaking, it ought to be in Euros. However, this is not an exercise in precision as to the hours worked by the deceased or as to the assessment of the value of his services. It is convenient, therefore, to work in Australian dollars in accordance with the schedule. It is common ground that one Euro is the equivalent of two Australian dollars approximately and, for the same reason, it is convenient to use that conversion rate. I shall say something about the future later [38]. For the deceased’s services in and around the house and property, including the cutting of grass, I allow 20 hours per week from 5 October 2006 to date, being 123 weeks @ $300 per week, $36,900. For the future, the plaintiff’s claim has been assessed on the basis of 30.8 hours per week of services provided by the deceased around the house and property. As I have allowed 20 hours per week, the allowance is close enough to two-thirds of what the plaintiff has claimed and, accordingly, I allow two-thirds of $171,771.60, being $114,514.40.
25. The total allowance for the loss of services in respect of Abelokipi property is $204,451.82.
Pastras Studios
26. At Laganas Bay, the family had a four bedroom house and a block of studios on a 4,000 square metre property. The Studios are owned by the plaintiff and his wife. Ioanna is entitled to the rents during her lifetime. The Studios have 16 small rooms, the rooms are let to tourists and local workers, usually in the tourist season from May to October. The house is sometimes used as a summer home for the family. The grounds surrounding the buildings include some vegetable gardens, one of about 500 square metres and the other about 40 square metres. The deceased used to maintain and repair the buildings on this property and collect rent. He also maintained the gardens and the grounds generally.
27. In my view, the evidence supports the claim in respect of the deceased’s services in and around the Pastras Studios. I accept that he performed services to the extent as set out in the schedule and I consider that the hours spent were reasonable. Accordingly, I allow the claim in respect of the Pastras Studios as per the plaintiff’s schedule.
For the past, the allowance is $14,325.
For the future, the allowance is $42,496.74.
The total allowance in respect of the Pastras Studios is $56,821.74.
Laganas Boat Tours
28. From late 1995, the plaintiff and his brother-in-law, George Tamaresis have conducted a business called “Laganas Boat Tours”. It is operated as a partnership in which the plaintiff and his brother-in-law share equally the income and bear equally the outgoings. Earlier in the 1990s, the plaintiff had studied tourism in Australia. The business of Laganas Boat Tours operates in the tourist season from May to October. It takes tourists to see sea turtles being a particular breed of sea turtle called Caretta Caretta or Loggerhead found at Laganas Bay. The tours also take in the sights around Laganas Bay. The business commenced with three catamarans and licences to convey tourists on the catamarans. Apparently, the business can be conducted only if the operator has a licence. A fourth catamaran has since been acquired and a licence associated with it. This is not an indication of any growth in the business, but was designed to protect the business by keeping competitors out. Each catamaran is capable to carrying 20 passengers.
29. On the beach at Laganas are two pick up points for tourists to catch the catamarans and there was a kiosk at each of these pick up points. For the purposes of these proceedings, it is really only one of those kiosks that bears on the matter. At the kiosk, the customers buy tickets for their tours. Tours may be of one, two or three hours’ duration. From 1995, during each tourist season, the deceased worked at one of these kiosks and the work he did is described in the plaintiff’s statement as “procuring customers, explaining the tours to prospective customers, issuing tickets and collecting the money”. His work was always voluntary and he refused to accept any payment for it.
30. Since his death, his labour has been replaced by two employees. I have difficulty understanding why this is necessary or reasonable. Apart from the description of the deceased’s work in the previous paragraph, he also drove the boat occasionally, did some work cleaning up after the last boat trip of the day and held radio and other licences. The question being considered here is whether the test of the plaintiff’s entitlement is the full cost of two replacement employees or whether the test is the reasonable cost to the plaintiff of replacement labour. The plaintiff made a case that it was necessary to replace the deceased with two employees. In dealing with that case, the work that the deceased did in driving the boats, cleaning up at the end of the day and operating the radio, if he did, may be ignored, because the two employees did not undertake anything other than the work on the beach.
31. It was said that the deceased was particularly good at the work he did, that he was excellent with the tourists and that he spoke and understood English well, that he could explain to the tourists what the tour was about and that if there was a queue of tourists wanting tickets, he could save them from becoming impatient. I have real difficulty in seeing what specialist skill the deceased had in undertaking this task that could not be undertaken by one person. The evidence did not disclose to what extent tourists who were on the beach at Laganas were there for the purpose of undertaking one of these tours or whether they were there, oblivious as to the existence of these tours before they arrived. The latter would seem unlikely as the area was relatively small and there seem to have been any number of signs notifying the existence of these tours. I would think it unlikely that tourists would have been dependent on the deceased’s explanation of what the tour involved before deciding whether or not to undertake these tours and, in any event, it surely cannot be beyond the wit of one person to explain to potential tourists what the tour involves. The evidence does not satisfy me that two people were needed to explain to potential tourists what the tour involved, nor does it satisfy me that two people were needed to sell tickets, collect money and keep people on a queue patient. Another aspect on which the evidence was quite silent was how busy this business was. It is purely a cash business and not one record was produced to show that it was busy and nor did the oral evidence satisfy me that it was busy to an extent that two people were needed to do the work that one used to do. The evidence does not satisfy me that there was any custom that was attracted to the business by reason of the deceased’s skills or that the business has lost any custom for the reason that the deceased is no longer there.
32. That now gives rise to the question as to whether the plaintiff is entitled to the replacement cost of two employees or whether his claim is limited to the reasonable cost of replacing the deceased’s services. I leave aside for the moment the tasks that the deceased did that the replacement employees did not do, such as driving the boat and cleaning up after the last trip.
33. In my view, reasonableness does come into the assessment of damages under the Wrongs Act. Section 17 provides that the court may give “such damages as … it think[s] proportioned to the injury resulting from … death …” In the course of submissions, a number of examples was discussed. It is sufficient at this point to take one. If a man gets down on his hands and knees and cuts his grass with nail scissors and it takes him a month to do so, when the same result could be achieved in half an hour with a lawn mower, are the dependants entitled to damages assessed on the basis that the loss is the loss of one month of services or the loss of half an hour of services? The plaintiff submits the former. I do not accept that. Such an assessment would not be “proportioned to the injury resulting from … death” within the meaning of s17. Further, I have, as invited, looked at cases footnoted in Luntz Assessment of Damages for Personal Injury and Death, 4th edition and other cases and I do not believe they support such a proposition. I have attached to these reasons a schedule of such cases. Further, I think statements in Nguyen are against this proposition:
(a) “… a claim for damages under Lord Campbell’s Act is a claim for recompense for some tangible advantage which has been lost by reason of the death of the deceased” [Nguyen p263]. In the example given, the tangible advantage is not the hours undertaken to achieve the result of a cut lawn, but the result itself;
(b) “… the deceased may have made a contribution in services rather than money in which case damages are recoverable for their loss, whether or not they are, or are to be, replaced, provided that a pecuniary value can be placed upon them” (Nguyen, p263). Again, to use the example given, nobody would place a pecuniary value of one month’s labour to undertake the service of cutting the lawn;
(c) “…if a wife or mother was so physically or mentally incapacitated as to have been unable to play any useful part in the lives of the family, there may be no resulting pecuniary loss.” (Nguyen, p264). This raises another example that was discussed in submissions, for example, if a wife, by reason of incapacity, took a whole weekend to wash up two breakfast dishes that could be done in five minutes whether the loss is measured by a whole weekend’s labour or is measured by five minutes’ labour. The quoted passage is in the context of a wife or mother being entirely incapacitated, but there is no reason, in my view, why it cannot be adapted to meet a case of reduced capacity.
34. In my view, the loss of services in this instance is the loss of the services of one person, being the deceased and those services could be replaced, to a large extent, by one person. The measure of the replacement value of those services is the cost of employing one person to do the tasks that the deceased had done. The deceased also had a licence to drive the boats and drove them to a limited extent. He also had other licences, but the evidence does not disclose to what extent he used them. The services he provided in driving the boats and cleaning up at the end of the day have not been replaced, but that is not the test of entitlement. There is, however, no evidence of the value of his services of driving the boat. I could allow nothing on the basis of lack of evidence, but if I did, I think I would be doing a disservice to the plaintiff where there has been a demonstrable loss not otherwise compensated. I propose to add an allowance of 15% on top of the allowance I otherwise make for this head of claim to compensate for services the deceased provided that have not been replaced, those services being the driving of the boat and cleaning up at the end of the day.
35. The next question that arises on this point is what is the loss to the dependants. It was submitted by Mr Russell SC that the tangible benefit lost was that the plaintiff did not have to employ somebody for wages and, as a result, pay half the cost of his wages. The evidence was the plaintiff and also his brother-in-law paid half the cost of the replacement labour (T40.04). The loss was half of the cost of one person to replace the deceased because the business was operated in partnership with the plaintiff and his brother-in-law and each day all expenses were shared equally and all profits shared equally. Mr Semmler QC, on the other hand, submitted that the loss to the dependants was the total cost of paying the replacement labour, irrespective of what interest, no matter how small, the plaintiff had in Laganas Boat Tours. I think the submission of Mr Russell SC must be correct. When one comes back to the wording of s17, the damages proportionate to the injury resulting from the death of the deceased is, in this instance, the loss to the plaintiff of the deceased’s services. Theoretically, that loss can be calculated quite simply. Somebody with knowledge of the labour market at Laganas Bay could look at what the deceased was doing and say that were he to be paid for his labours, he would receive $X per week. Because the deceased was not being paid, the plaintiff did not have to put his hand in his pocket. Somebody coming in to do that same job for reward would be paid $X per week with the result that the plaintiff would be required to put his hand in his pocket for half of $X per week. That is his loss. It is not appropriate to apply principles of partnership law here because there is no evidence as to what Greek law is in this regard. This is a case of neat financial loss where the loss of the services has cost the dependant, in this instance the plaintiff, directly in money terms. In a pure commercial situation where the plaintiff and his brother-in-law were sharing the expenses and “split the takings equally at the end of each day”, what the plaintiff has lost, in my view, is half the value of the services provided by the deceased and is represented by his share of the cost of replacing the deceased’s services. Black v Walden [2008] NSWCA 108 does not cut across this because there the only persons who benefited from the deceased’s services were dependants who were entitled to claim damages for the loss of the deceased’s services. The cases I have looked at do not touch on this because they do not deal with this situation where there is a commercial arrangement where the dependants’ interests in the deceased services is half the benefit of those services and the other half lies with a person who is not a dependant.
36. This means, in my view, that in respect of this part of the claim, the plaintiff is entitled to one quarter of that amount claimed in the schedules and, accordingly, I allow the claim as follows:
(a) for the past, I allow one quarter of $77,520, being $19,380;
(b) for the future, I allow one quarter of $260,260, being $65,065,
being a total of $84,445.
37. In addition, to compensate for the loss of the deceased’s services in driving the boat and also cleaning up after the last boat trip, I allow amounts being 15% of the figures in the previous paragraph, that is $2,907, $9,759.75 and $12,666.75 respectively.
38. Submissions were made as to vicissitudes. I have not made any reduction for such. The claim for the future runs until the deceased would have turned 75 years of age. I think that claim is reasonable in the circumstances. There are factors that weigh both ways on vicissitudes. On the one hand, it may be that the deceased would have wound down his hours at the property and at the studios and in the business as he approached 75 years of age and also the plaintiff in that time may have taken over more of the work that the deceased had been doing. Further, the business may not have continued. On the other hand, the plaintiff’s life expectancy and family history would suggest a likely lifespan for some time beyond 75 years of age. It may be that the deceased would have continued to provide services beyond that age. The period for the future is only eight years. In the circumstances, I do not think there should be any discount for vicissitudes.
39.
Olive harvesting – past Olive harvesting – future Abelokipi (apart from olive harvesting) – past Abelokipi (apart from olive harvesting) – future Pastras Studios – past Pastras Studios – future Laganas Bay – kiosk work – past Laganas Bay – kiosk work – future Laganas Bay – other work – past Laganas Bay – other work – future
Interest
40. I have allowed damages for the past at $90,522. The plaintiff’s synopsis of damages claims interest at 10% per annum for one year. I think that claim is reasonable. I allow $9,052. The total figure for damages is $367,437.31.
Apportionment
41. It was suggested that it would be appropriate to apportion one third of the damages to each claimant. I agree and shall do so.
Orders
42. Verdict and judgment for the plaintiff in the amount of $367,437.31.
43. I apportion the damages as follows:
(a) plaintiff $122,479.11;
(b) Ioanna $122,479.10; and
(c) Olga $122,479.10.
(1995) 35 NSWLR 668
BC9900509, Court of Appeal, WA
[1976] QB 85
[1977] 1 NSWLR 294
[1980] WAR 105
[1978] 1 QB 543
[1978] 2 NSWLR 353
(2000) Aust Torts Reports 81-583 (Court of Appeal, NSW); (2000) 7 Leg Rep SC 3 (HCA, special leave refused)
[1964] VR 174
, ex parte K [1999] QB 1131
(2002) 212 CLR 338
(1962) 108 CLR 635
[2000] QCA 287
[2006] NSWCA 170; [2008] NSWCA 108
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