Ross & Ors v Milzewski
[1997] QSC 100
•6 June 1997
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 per week which fitted in with the children's school hours. At the time of her death she was earning $248 net per week. I am satisfied that the position was a permanent one and she could have remained there indefinitely. It was also possible as time went on that she could have worked longer hours.
I am satisfied that there had been discussions between the first plaintiff and the deceased to the effect that each should remain working until the deceased was aged 60, which would mean the first plaintiff was then about 63. Their plans on retirement were to travel.
In answer to a question the first plaintiff responded:"We tried to live off my wage and use Wendy's wage for what we considered to be the simple luxuries of life, we tried to pay off our mortgage at a faster rate, go on better than average holidays to the Whitsundays, the Gold Coast, Dreamworld, Seaworld, that sort of thing, we also put in an inground pool and made improvements to our house and decor."
I accept that that is an accurate statement of how the joint finances were run. The first plaintiff was the principal provider for the children, meeting all their basic needs, including education expenses, out of his wages. I am satisfied that that would have been the philosophy which continued to operate throughout the years the children were growing up.
I was impressed by the plaintiff as a witness; he was open and frank in answering all questions. He admitted that he has socialised with other women since his wife's death but was firmly of the view that another marriage was unlikely. His evidence in that regard was convincing. On the balance of probability he will not remarry whilst any of the children are still at home and by then the chances are he will not alter his accepted lifestyle. The possibility of remarriage is a relevant consideration in the assessment of damages but on the facts of the case it calls for no more than a discounting from what might otherwise be allowed. I have taken that into consideration when making the following calculations.
Each of the children appears to be reasonably bright, and Lisa in particular has good prospects of completing tertiary education. It is clear that the parents would have encouraged all of the children to complete tertiary education if possible. In the end both counsel were in agreement that loss of dependency should be calculated on the basis that each child would remain dependent until attaining the age 20 years.
Counsel for the plaintiffs submitted that I should hold that the loss of dependency as at the date of the deceased's death was $240 per week. On the other hand counsel for the defendants submitted that the loss of dependency at that time should be assessed at $198 per week. It is always difficult, if not impossible, for a witness in the position of the first plaintiff to give precise evidence as to how the income earned by the two was being utilised. In broad terms I accept his evidence, but it is clear that, as in every household, there would be variations and fluctuations from time to time to accommodate changing circumstances. Whilst I accept that the first plaintiff was primarily responsible for meeting the deceased's day to day needs out of his income, I am also satisfied that some of the deceased's earnings would have been spent on herself. Some of the "simple luxuries" referred to by the first plaintiff in the answer quoted above would have included outlaying a little each week for the deceased herself. In the circumstances I assess the loss of dependency with respect to the first and second plaintiffs as at the date of death as $200 per week.
Given that the first plaintiff was primarily responsible for meeting the day to day needs of the family it is appropriate in my view to apportion that $200 per week equally between the first and second plaintiffs; that means the first plaintiff's loss was $100 per week and the three children shared equally the other $100 per week. There were 98 weeks from death to trial and the loss of past dependency must be calculated for that period. I therefore assess the loss of past dependency for the first plaintiff in the sum of $9,800, and in the sum of $3,266 for each of the three children. Interest should be allowed at 5% which gives $921 for the first plaintiff and $307 for each child. That makes the totals for past dependency:
Trevor Oscar Ross $10,721.00
Lisa$3,573.00
Daniel$3,573.00
Kent$3,573.00
TOTAL:$21,442.00
As I have said it was agreed that the relevant dependency for each child should continue until attaining age 20. The future loss of dependency should be calculated in stages.
The first stage is the four year period from trial to when Lisa attains the age of 20. During that period I find that the loss of dependency would be the same as that which applied for the pre-trial period, namely $100 per week for the first plaintiff and a further $100 per week divided equally between each of the three children. Using the 3% discount tables I assess the first plaintiff's loss for that period as $19,700, and the loss for each of the three children as $6,566.
During the second period, that is until Daniel attained the age of 20, there would only be two dependent children, Daniel and Kent. I am satisfied on the whole of the evidence that as the number of dependent children decreased the deceased would have expended more of her earnings on herself, and also the amount attributable to each of the remaining children would increase somewhat. For the second period I assess the first plaintiff's loss of dependency as being $100 per week and that of the remaining two children at $40 each per week. Again using the 3% discount table I assess the first plaintiff's loss of dependency for that period in the sum of $13,300, and the loss for each of the two children at $5,320.
The third period would be until Kent attained the age of 20, and he would then be the only dependent child. During that period the first plaintiff's dependency would increase to $120 per week and Kent's dependency increase to $50 per week. The remaining portion of the deceased's income would have been spent on herself. Using the 3% discount table I assess the first plaintiff's loss for this period in the sum of $14,640, and Kent's loss as being $6,100.
The fourth and final period is that until the first plaintiff and the deceased would have retired; that is ten years from the end of the third period taking the first plaintiff to age about 63. During this period more of the deceased's income would have been expended on herself and the dependency of the first plaintiff would be, in my assessment, $150 per week. Again using the 3% discount table one arrives at a figure of $50,400 for the whole of that ten year period. However there should be some discounting for the normal vicissitudes of life and the possibility of remarriage. In the circumstances I allow $45,000.That assessment for loss of future dependency can be summarised as follows:
First plaintiff $92,640.00
Lisa $6,566.00
Daniel $11,886.00
Kent $17,986.00
TOTAL: $129,078.00
It remains to consider the amounts to be assessed for past loss of domestic services and future loss of domestic services. It was agreed that I should adopt $10 per hour as the relevant commercial rate with respect to the provision of such services. The assessments here call for an application of the principles discussed in Nguyen v. Nguyen (1990) 169 CLR 245, Van Gervan v. Fenton (1992) 175 CLR 327 and Nguyen v. Nguyen No 2 (1992) 1 Qd. R. 405; I analysed those decisions in White v. Mt Isa Mines Limited, unreported, Mt Isa No 6 of 1991, judgment 17 February 1993 and indicated how those principles were to be applied to the facts of a particular case. In general I approach the assessment here along the same lines as I did in White; I will not repeat here what I said in that earlier decision.
It is extremely difficult to calculate the number of hours spent by a person, particularly a wife and mother, in providing domestic services. There will always be a degree of overlapping (for example, childminding whilst cooking the evening meal) which can lead to an exaggerated calculation of the number of hours spent in providing such services. Further, no one period of time will exactly equate with another; illness, school holidays and the like will always cause a variation. In this case the first plaintiff has made a reasonable attempt to quantify the deceased's provision of domestic services in terms of hours, but in the end it can be no more than a realistic guide to the true figure. There is also no doubt that as the children grew older the time spent by the deceased in providing domestic services would reduce. Having heard evidence as to the household in question I have no doubt that the three children would have been encouraged to accept, and in fact would have accepted, responsibility for contributing to the domestic chores. Further, as has indeed happened since the death of the deceased, the children would become more self-reliant as they got older, using their bicycles to get to sporting and cultural activities. The time spent by the wife in providing domestic services to the husband would remain relatively constant; the time so spent would not increase because less time was being spent on providing such services to the children. In consequence as the years went by there would be a significant decrease in the total number of hours per week spent in providing domestic services.
The first plaintiff has in fact engaged the services of a person to do ironing for 2 hours per week at a cost of $25, and another to do cleaning for 2 hours per week at a cost of $20 per week. In addition the deceased's parents are providing childminding services for at least 10 hours per week free of charge. The other services previously provided by the deceased have not been replaced at actual cost, but readjustment of the family responsibilities has ensured that all such tasks are met. That has meant that the first plaintiff has had to sacrifice what would otherwise have been recreational time in order to attend to domestic duties.
Over the approximate two years from date of death to trial the deceased would have spent some 28 hours per week in providing domestic services to the plaintiffs. That time would have been spent cooking, cleaning, washing, ironing, helping with schoolwork, and childminding. In the circumstances I assess the value of the loss of domestic services in the period prior to trial in the sum of $27,440. Interest should be allowed on that at the rate of 5% giving a figure of $2,469. The total therefore under this head is $29,909. In my view all of that should be regarded as a loss incurred by the first plaintiff.
On the evidence I am satisfied that over the next five years the time spent by the deceased on providing domestic services to the plaintiff would have remained the same, that is 28 hours per week. That brings Kent, the youngest child, up to age about 15; by then the children would have been largely able to do most things for themselves. However, the deceased would still have been primarily responsible for cooking, washing, and cleaning. Up until that point of time there would also have been an amount of childminding involved. For that five year period, again having recourse to the 3% discount table, I assess the value of lost services in the sum of $67,760. In the years following that period the services provided by the deceased would primarily have been with respect to the first plaintiff. The services during those years would primarily be cooking, cleaning, washing and ironing. There also has to be a discounting for the usual vicissitudes of life and the possibility of remarriage. In my view all those considerations can be accommodated by a finding that for a further period of twelve years the first plaintiff would have lost domestic services amounting to 21 hours per week. Using the 3% discount table one arrives at a figure for that period of $95,550. That makes a total for the future loss of domestic services of $163,310. Again I am of the view that the whole of that loss is recoverable by the first plaintiff.
My assessment of damages can therefore be summarised as follows:
First Plaintiff - Trevor Oscar Ross(i)Past loss of dependency $10,721.00
(ii)Future loss of dependency $92,640.00
(iii)Past loss of domestic services $29,909.00
(iv)Future loss of domestic services $163,310.00
TOTAL: $296,580.00
Second Plaintiff - Lisa Jay Ross
(i)Past loss of dependency $3,573.00
(ii)Future loss of dependency $6,566.00
TOTAL: $10,139.00
Second Plaintiff - Daniel Trevor Ross
(i)Past loss of dependency $3,573.00
(ii)Future loss of dependency $11,886.00
TOTAL: $15,459.00
Second Plaintiff - Kent Noel Ross
(i)Past loss of dependency $3,573.00
(ii)Future loss of dependency $17,986.00
TOTAL: $21,559.00
That means the total assessment of damages is $343,737 apportioned as above.
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