Ross & Ors v Milzewski - [1997] QSC 100

IN THE SUPREME COURT

OF QUEENSLAND

No 10 of 1996

Maryborough District Registry

Before the Hon. Justice Williams

[Ross & Ors v. Milzewski & Anor]

BETWEEN:
TREVOR OSCAR ROSS

(First Plaintiff)

AND:
  LISA JAY ROSS, DANIEL TREVOR ROSS
  AND KENT NOEL ROSS
  (infants by their next friend Trevor Oscar Ross)

(Second Plaintiffs)

AND:
ANTHONY THOMAS MILZEWSKI

(First Defendant)

AND:
SUNCORP INSURANCE AND FINANCE

(Second Defendant)
REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 06/06/1997

CATCHWORDS: DAMAGES - wife killed in motor vehicle accident - left husband and three children - Lord Campbell's Act damages - loss of dependency - judgment for plaintiffs for $343,737.

Counsel:R Morton for plaintiffs
G Mullins for defendants

Solicitors:Carswell & Co for plaintiffs
McInnes Wilson & Jensen for defendants

Hearing Date: 29 May 1997

IN THE SUPREME COURT

OF QUEENSLAND

No 10 of 1996

Maryborough District Registry

[Ross & Ors v. Milzewski & Anor]

BETWEEN:
TREVOR OSCAR ROSS

(First Plaintiff)

AND:
  LISA JAY ROSS, DANIEL TREVOR ROSS
  AND KENT NOEL ROSS
  (infants by their next friend Trevor Oscar Ross)

(Second Plaintiffs)

AND:
ANTHONY THOMAS MILZEWSKI

(First Defendant)

AND:
SUNCORP INSURANCE AND FINANCE

(Second Defendant)
REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 06/06/1997

Wendy Ann Ross, who was born on 18 October 1956, died as a result of a motor vehicle accident on 14 July 1995. The defendants have admitted liability with respect to that accident.
           The first plaintiff, Trevor Oscar Ross, was born on 28 November 1954, and married the deceased on 12 February 1977. There were three children of the marriage, being the second plaintiffs: Lisa born 31 December 1981, Daniel born 5 January 1984, and Kent born 31 August 1987. In the action the plaintiffs claim damages pursuant to the Lord Campbell's Act principle for loss of dependency upon the death of the deceased.
           The first plaintiff is presently the manager of financial services at the TAFE College in Maryborough. He has held that position for approximately nine months, and has been in the public service for some 27 years. The family moved back to Maryborough in about 1993; the parents of both the first plaintiff and the deceased lived in the district. They intended to make their permanent home in Maryborough.
           For the financial year ending 30 June 1995 the first plaintiff was earning $588 per week net after tax and deduction of the Medicare levy. The first plaintiff and his wife purchased a home in Maryborough and were paying off a mortgage on it. Mortgage repayments were $440 per fortnight. Other pre-accident expenses are detailed in exhibit 3.
           Prior to the marriage the deceased had been employed as a clerk in the public service. She worked generally in that capacity until about the time of Lisa's birth in 1981. She did not return to work until about the year 1990. Ultimately in about 1994 she obtained a position as a receptionist at the Kent Street Medical Centre. She was working some 20‑22 hours…

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 Ross & Ors v Milzewski

Details

AGLC: Ross v Milzewski [1997] QSC 100
Case: [1997] QSC 100
Decision Date: 6 June 1997

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of Ross & Ors v Milzewski involved Trevor Oscar Ross, Lisa Jay Ross, Daniel Trevor Ross, and Kent Noel Ross (the plaintiffs) against Anthony Thomas Milzewski and Suncorp Insurance and Finance (the defendants). The dispute arose from the death of Wendy Ann Ross, who was killed in a motor vehicle accident on 14 July 1995. The defendants admitted liability for the accident, and the plaintiffs sought damages under the Lord Campbell's Act for the loss of dependency on the deceased.

The primary legal issue before the court was the quantification of damages for the loss of dependency and domestic services resulting from the death of Wendy Ann Ross. The court had to determine the weekly dependency amount, the period over which dependency should be calculated, and the value of the domestic services provided by the deceased.

Justice Williams, in delivering the judgment, first assessed the dependency loss by considering the financial contributions of both Wendy and Trevor Ross. The court accepted that Wendy's earnings would have been used partly for personal expenses and partly for family needs. The dependency loss was calculated at $200 per week, apportioned equally between the first and second plaintiffs. The court then calculated the past and future loss of dependency, taking into account the number of dependent children and the possibility of remarriage. The dependency loss was further broken down into stages, reflecting changes in the family's composition over time. Additionally, the court assessed the loss of domestic services provided by Wendy, considering the hours spent on domestic chores and the commercial rate for such services.

In conclusion, the court awarded damages totalling $343,737, apportioned among the plaintiffs based on their individual losses of dependency and domestic services. The damages were calculated to reflect the economic and non-economic contributions of Wendy Ross to the family before her death.

Orders