Re Carri-Ann Rowlings; Fraser v Thom

[2010] VSC 626

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PRACTICE COURT

No. 2010 of 3554

IN THE MATTER of s 184 of the Property Law Act 1958

AND

IN THE MATTER of the intestate estate of CARRI-ANN MARION ROWLINGS (deceased)

BETWEEN:

and

JILLIAN ELIZABETH MARION FRASER (as representative of the intestate estate of the deceased)	Plaintiff
And
CHARLENE JANE THOM (as representative of the intestate estate of Geoffrey Graeme Rowlings deceased)	Defendant

---

JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 December 2010
DATE OF JUDGMENT:	23 December 2010
CASE MAY BE CITED AS:	Re Carri-Ann Rowlings;  Fraser v Thom
MEDIUM NEUTRAL CITATION:	[2010] VSC 626

---

ADMINISTRATION AND PROBATE - Husband and wife both died in the same car accident – uncertainty as to order of deaths – meaning of “uncertainty” – s 184 Property Law Act 1958 - In Re Comfort (dec’d) [1947] VLR 237; In Re Zappullo (dec’d) [1966] VR 390; Re Brush (dec’d) [1962] VR 596 applied.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Verspaandonk	Williams Winter
For the Defendant	Mr M Simon	McGindle Dalgleish Lawyers

HIS HONOUR:

Introduction

1. Carri-Ann Rowlings and Geoffrey Rowlings, a married couple, died as a result of a head on collision between their vehicle and another on 27 January 2008.  The question for the purpose of this application is the order in which they died.

1. The plaintiff, Mrs Rowlings’ mother, commenced the proceeding by originating motion seeking, amongst other things, an order that she be appointed to represent Mrs Rowlings’ estate in the proceeding, and a declaration for the purposes of s 184 of the Property Law Act 1958 that the circumstances in which Mr and Mrs Rowlings died render it uncertain which of them survived the other. 

1. This matter came before me by summons dated 5 November 2010 seeking only the declaration to which I have referred. 

1. If it is ‘uncertain’ which of them survived the other then s 184 of the Property Law Act 1958 (Vic) (‘the Act’) deems that Mrs Rowlings survived Mr Rowlings because, at the time of death, she was the younger of the two. Section 184 of the Act provides:

In all cases where, after the second day of December One thousand nine hundred and twenty-five, two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the Court), for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.

1. The question regarding the sequence of their deaths is relevant to the destination of their respective estates.  Both died without leaving a will.  Only Mrs Rowlings had any net assets (approximately $272,000).  Mr Rowlings’ estate had a net deficiency (approximately $23,000).  Mr Rowlings died leaving a five year old daughter of a previous relationship.  Mrs Rowlings had no children.

1. The combined operation of various provisions in ss 51 and 52 of the Administration and Probate Act 1958 (Vic) has the effect, in these circumstances, that –

(a)if Mrs Rowlings survived Mr Rowlings then her net estate goes to her parents; but

(b)if Mr Rowlings survived Mrs Rowlings her net estate goes first to Mr Rowlings and then, in turn, to his five year old daughter. 

1. If the presumption in s 184 of the Act applies then the result in subparagraph (a) above would follow. The question is, does the presumption apply?

1. Counsel for both the plaintiff (Mrs Rowlings’ mother) and the defendant (the representative of the intestate estate of Mr Rowlings) agree that the presumption is engaged and that I must apply it in this case.  Although I may derive some comfort from their common submission it still falls for me to analyse the evidence.  I am asked to make a declaration which hinges upon a particular view of the evidence and it is not appropriate that I should act (nor have I been asked to act) simply upon the basis that the parties agree.

Principles

1. I recite some principles relevant to my task. 

1. First, s 184 does not absolve the Court from its task of weighing all the evidence to endeavour to ascertain, without recourse to the presumption, which of the two persons died first.[1]

   [1]In Re Comfort (deceased) [1947] VLR 237.

1. Secondly, the word ‘uncertain’ in s 184 does not merely denote the state of mind in which one entertains doubt as to the matter such that unless the judge is ’certain’, in the sense of being free of any such doubt, the presumption applies.[2]  Rather, if a court is able to come to a conclusion on all the facts upon the usual civil standard of proof – ie on the balance of probabilities – then the statutory presumption is not engaged and the finding of fact is made without recourse to s 184.[3]  It is only if no finding can be made either way that there is relevant uncertainty.

   [2]In Re Plaister (1934) 34 SR (NSW) 547; In Re Comfort (deceased) [1947] VLR 237; In Re Zappullo (deceased) [1966] VR 390.

   [3]In Re Zappullo (deceased) [1966] VR 390.

1. Thirdly, if the statute is engaged because the sequence of deaths is ‘uncertain’ in the sense that a judge cannot be satisfied, on the balance of probabilities, either way, then the court must determine that the deaths occurred in the order of seniority so that the younger is deemed to have survived the older.[4]

   [4]Re Brush (deceased) [1962] VR 596.

1. Fourthly, and in amplification of the third point, once the presumption is engaged there is no further or residual discretion in the court to decide otherwise, for example, in accordance with a particular perception of justice, fairness or deserving circumstance.  In particular, the bracketed words ‘subject to any order of the court’, whatever those words may mean, do not reserve to the court any such discretion.[5]

   [5]Re Brush (deceased) [1962] VR 596.

Evidence

1. Two affidavits have been filed by the plaintiff, both dated 23 June 2010.  By one affidavit the plaintiff exhibits birth and death certificates for Mr and Mrs Rowlings. The plaintiff also exhibits the reports of Coroner Audrey Jamieson into the deaths of both deceased. 

1. There are also affidavits from senior forensic pathologist Dr Malcolm Dodd who performed an autopsy of Mr Rowlings, and senior pathologist Dr Michael Burke who performed a post-mortem examination of Mrs Rowlings.  Each doctor exhibits a copy of a joint supplementary report dated 20 April 2009 which was provided to the coroner on the question of which deceased may have died first. 

1. From the birth and death certificates I am satisfied that Mrs Rowlings was the younger at the date of death, she being 25 years and Mr Rowlings being 30 years.

1. The coroner records that immediately after the collision between the two vehicles, two witnesses went to the vehicle in which Mr and Mrs Rowlings were travelling.  Both independently found Mr and Mrs Rowlings to be deceased.  The paramedics who attended the scene about 30 minutes after the accident found no sign of life in either Mr and Mrs Rowlings. 

1. Dr Dodd and Dr Burke, after being asked to provide a report to the coroner dealing with the question of who died first, said in the report which they jointly signed –

Dr Burke and I have independently reviewed each other’s post-mortem reports and have both reached the conclusion that death in each case would have been swift due to the extensive and complex nature of the trauma incurred at the instant of impact. 

The summary of circumstances report indicates that ambulance paramedics declared the time of death at approximately 1150 hours for both the passenger [Mr Rowlings] and driver [Mrs Rowlings]. 

The injuries are extensive and as such, a qualified opinion in regards to who would have died first in this event cannot be provided with any degree of certainty. 

1. In their respective affidavits the doctors each depose to reaching the conclusion ’that an opinion as to which of Carri-Ann Marion Rowlings and Geoffrey Graeme Rowlings would have died first could not be provided with any degree of certainty’. 

Conclusion

1. In those circumstances I find myself unable to reach any level of persuasion on the balance of probabilities as to which of the deceased died first. 

1. I therefore consider that Mr and Mrs Rowlings died in circumstances rendering it uncertain, within the proper meaning of that word in s 184 of the Property Law Act, which of them survived the other. 

1. Accordingly the statutory presumption in s 184 is engaged.

1. Applying the principles to which I have referred, I have no discretion but to declare that Carri-Ann Rowlings survived Geoffrey Rowlings and I will make the following declaration: 

The circumstances in which both the deceased Carri-Ann Marion Rowlings and Geoffrey Graeme Rowlings died on 27 January 2008 render it uncertain which of them survived the other and thus pursuant to s 184 of the Property Law Act 1958 (Vic) Carri-Ann Marion Rowlings, being the younger at the date of death, is presumed to have survived Geoffrey Graeme Rowlings.