TAC v Woodley Osteopathic Services Pty Ltd
[2012] VCC 188
•22 February 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT GEELONG AND MELBOURNE
CIVIL DIVISION
DAMAGES
Case No. CI-09-03164
| Transport Accident Commission | Plaintiff |
| v | |
| A Woodley Osteopathic Services Pty Ltd - and - Brendan Woodley - and - Vero Insurance Limited | First Defendant Second Defendant Third Party |
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JUDGE: | Judge Howie | |
WHERE HELD: | Geelong and Melbourne | |
DATE OF HEARING: | 1 - 4, 9,16 August, 6 September 2011, | |
DATE OF JUDGMENT: | 22 February 2012 | |
CASE MAY BE CITED AS: | TAC v Woodley Osteopathic Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 188 | |
REASONS FOR JUDGMENT
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Catchwords: Death and injury arising out of a transport accident; liability for collision with horse; entitlement of Commission to indemnity pursuant to s 104 of the Transport Accident Act 1986; assessment of damages pursuant to Part III of the Wrongs Act 1958
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr RM Meldrum QC and Ms KA Galpin | Wisewould Mahoney |
| For the First Defendant For the Second Defendant For the Third Party | Mr MR Titshall QC and Mr KG Howden | Lander & Rogers DLA Piper Australia Lander and Rogers |
HIS HONOUR:
1 The Transport Accident Commission, the plaintiff in this proceeding, seeks indemnity from the defendants pursuant to section 104 of the Transport Accident Act 1986 with respect to Leanne Burnett who died, and Jaimie Burnett who was injured, when the car in which they were passengers collided with a horse on the Northern Highway Kilmore on 26 August 2006.
2 At the request of the parties the proceeding has been heard in three stages – first, the liability of the defendants; second, the third party claim; and third, the amount in respect of which the Commission is entitled to be indemnified.
3 On 9 August 2011 I held that both defendants were in breach of the duty of care owed to users of the highway and apportioned liability for the accident between them, 90% to the first defendant and 10% to the second defendant.[1] On 6 November 2011 I dismissed the 2nd defendant’s third party proceeding against Vero Insurance Limited.[2] The reasons for these decision are set out in the following paragraphs.
Liability of the defendants
[1] transcript 331-343
[2] transcript 434-437
4 Shortly after 6 pm on the evening of 25 August 2006 a car driven by Dale Burnett collided with a horse on the Northern Highway, not far from Kilmore. The car was travelling south at 100kph and Mr Burnett did not see the horse before colliding with it. The horse, a chestnut mare known as Shantess, was owned by Allan Woodley. It was kept at a property adjacent to the Northern Highway. A. Woodley Osteopathic Services Pty Ltd, the first defendant, was the owner and occupier of the property. Brendan Woodley, the second defendant, lived on the property. Tragically Mr Burnett’s wife, Leanne Burnett, the front seat passenger in the car, was killed. Their daughter, Jaimie Burnett was injured.
5 The plaintiff, the Transport Accident Commission, has made payments in relation to the late Leanne Burnett and Jaimie Burnett pursuant to its statutory obligations. It alleges that the accident was caused by the negligence of the defendants and seeks indemnity from them pursuant to section 104 of the Transport Accident Act 1986.
6 The plaintiff called six witnesses: Richard Owsianny, the driver of another car on the highway, Dr Andrew McLean, an expert in the behaviour of horses, Reginald Barlee and Michael Eddy, who each had a measure of expertise with respect to gates and latching mechanisms, Senior Constable Warren Taylor, who attended the accident and later inspected the gate, and Brendan Woodley, the second defendant. No other witnesses were called. The second defendant tendered some documents.
7 Allan Woodley brought the horse to the property in January 2006 and placed it in a paddock on the western side of the property, adjacent to the Northern Highway, running north-south. He and his wife were the directors of A. Woodley Osteopathic Services Pty Ltd. They lived in Diamond Creek and he attended the property as often as two or three times a week to see family, work on the shiraz vines and attend to the horse. He put supplementary feed in the bin when he thought appropriate. There were also four sheep in the paddock. They belonged to David McMillan, Brendan Woodley’s father-in-law, and had been put in the paddock approximately three months before the accident.
8 On 25 August 2006, Brendan Woodley was on and off the property until lunch time, driving along the driveway several times. He saw the horse in the paddock in the morning. In the afternoon he worked at another vineyard and returned home at approximately 5.15 or 5.30 pm via a route other than the driveway. He did not go past the paddock in the afternoon.
9 At approximately 5.45 pm, after his wife told him that she had heard a loud bang and that she thought there had been an accident on the highway, he walked down the driveway to the highway. He saw the vehicle involved in the accident approximately 100 metres south of the driveway. He was told that the car had collided with a horse. He telephoned his parents as they were due to arrive at the property and advised them to enter the property from the Wandong road on the northern boundary of the property. He walked back up the driveway to the house where he met his father, Allan Woodley, who had just arrived. The two of them then walked down the driveway to the entrance. They approached a police officer and informed him that the horse involved in the accident may have come from the property. Allan Woodley went with the police officer to the scene of the accident and identified the horse as the horse belonging to him.
10 As Brendan Woodley waited at the front gate at the entrance to the driveway, a woman who had stopped her car between the highway and the entrance to the driveway, informed him that she had seen a couple of sheep at a location inside the western fence of the property but outside the southern fence of the paddock. Allan Woodley returned after approximately five minutes and the two men walked back up the driveway. As they did so, Brendan Woodley saw two sheep run along the southern fence of the paddock in the direction of the house. They ran through the carport to the lawn on the eastern side of the house. Allan Woodley and Brendan Woodley’s wife ushered the sheep back through the carport towards the gate of the paddock. Brendan Woodley stood by the gate as the sheep ran through. He did not open the gate for the sheep to go through. It was already ajar one or two metres. He closed the gate after the sheep had gone through.
11 It is apparent that at some time after Brendan Woodley had seen the horse in the morning on 25 August 2006 the horse left the paddock through the open paddock gate and made its way to the Northern Highway through the open front gate and collided with the car.
12 The plaintiff alleges that the accident was due to the negligence of the defendants. It is convenient to first consider the allegation with respect to the first defendant, the occupier of the land.
13 It has not been argued that the first defendant, as occupier of the land, did not owe a duty of care to users of the adjoining highway. Such a duty arose because there was a sufficient relationship of proximity that a reasonable person in the first defendant’s position would foresee that carelessness on its part may be likely to cause damage to a user of the highway - see Wyong Shire Council v Shirt [1979-1980] 146 CLR 40 at 44 per Mason J.
14 In AD & SM McLean Pty Ltd v Meech (2005) 13 VR 241 at 251, Nettle JA said:
I consider that Burnie Port Authority ((1994) 179 CLR 520) dictates that the occupier of land which abuts such a highway and who permits others to agist horses on the land may be held to owe motorists passing on the highway by the property a non-delegable duty to take reasonable care to prevent the horses escaping onto the highway.
15 Whether or not the duty of an occupier is non-delegable springs not from the relationship between occupier and road user, but from the judgment that “an ordinary person acting reasonably would consider it necessary” for the occupier “to exercise ‘special care’ or take ‘special precautions’” having regard to “the magnitude of the foreseeable risk of an accident happening as a result of an activity conducted on the land, and the magnitude of the foreseeable potential injury or damage if an accident does occur” - see Nettle JA at 252.
16 I am satisfied in this case that the location of the paddock in which the horse was placed adjacent to the Northern Highway meant that there was a real and substantial risk that if the horse escaped the property a serious accident involving a user of the highway would occur. In my judgment, an ordinary person acting reasonably would consider it necessary for the occupier of the land in those circumstances to exercise special care or take special precautions to prevent the escape of the horse on to the Northern Highway. I am satisfied that the first defendant as the occupier of the land owed a non-delegable duty to take reasonable care to prevent the escape of the horse from its property.
17 The test of whether there was a breach of the duty was expressed in Wyong Shire Council v Shirt by Mason J at 47 in the following terms:
In deciding whether there had been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
18 In this case the plaintiff submitted that the first defendant failed to respond to the risk of injury to the users of the highway in two principal ways. First, by failing to take steps to ensure that the front gate remained closed at times other than when vehicles passed through the entrance to the property, and, second, by failing to have a latching mechanism on the paddock gate that operated effectively.
19 I make the following findings of fact. The horse was owned by Allan Woodley. He was one of two directors of the first defendant corporation, the other being his wife. He put the horse on the property in January 2006 with the permission of the first defendant. He visited the property to attend to the horse, visit family and work on the shiraz vines. As a director of the corporation which owned and occupied the land, he knew where the horse was located, the proximity of that location to the adjoining highway, the physical facilities of the property and the use made of it.
20 The dwelling where Brendan Woodley and his family resided as tenants of the first defendant was close to the south-eastern corner of the paddock which housed the horse, and approximately 20 metres from the paddock gate located at that corner. Photograph 17 in Exhibit 9 shows the location of the gate in relation to the driveway, carport and dwelling.
21 The driveway to the dwelling was adjacent to the southern fence of the horse paddock. It was approximately 70 or 80 metres in length and led from the dwelling to the western boundary of the property and beyond that to the Northern Highway. The driveway was used by Brendan Woodley and his family and by others, including contractors working on the vines, members of the extended family, persons with interests in the vines, and visitors wishing to gather mushrooms or purchase grapes. A gate, capable of being closed and securely chained, was located at the entrance to the driveway. The first defendant gave no instruction to Brendan Woodley to keep the entrance gate closed or to direct other users of the driveway to keep the entrance gate closed, and placed no sign on the gate directing that it be closed. The gate was normally left open and was open on 25 August 2006. The horse escaped from the property through the open gateway.
22 I am satisfied that a reasonable person in the first defendant’s position would have foreseen that a failure to keep both the paddock gate and the entrance gate securely closed involved a risk of the horse escaping from the property and causing serious injury or death to users of the highway. The degree of the probability of this occurring was real and not far-fetched or fanciful, and the magnitude of the risk was great. There was no significant expense and minimal difficulty or inconvenience in the first defendant instructing its tenant to keep the entrance gate closed when there was stock on the property and to instruct him to direct other users of the driveway to keep the gate closed. Nor was there significant expense, difficulty or inconvenience in placing a sign at the entrance directing that the gate be closed and secured. As the tribunal of fact, I consider that a reasonable person would have taken these steps by way of response to the risks. The first defendant failed to do so and was in breach of the duty it owed to users of the highway to take reasonable care to prevent the escape of the horse from its property. This breach was a cause of the accident.
23 I make the following findings of fact in relation to the paddock gate and its latching mechanism. The gate was a cast iron gate with an attached wire screen located at the south-east corner of the paddock and hinged to the wooden fence post at that corner. A bath in the paddock a few metres to the west of the gate, and the feed bin immediately to the west of the bath, were likely to attract the horse to the general area of the gate. The gate was secured in a closed position by means of a chain attached to the post at the eastern end of the southern fence, inserted through the end of the gate and slotted over a steel pin screwed into the post. The steel pin comprised a piece of steel rod bent at a right angle with one end bent over to make a double thickness and the other end screwed into the post. The pin was positioned on the side of the post inside the paddock. A flat elliptical steel plate with a central slot attached to the chain fitted over the double thickness of the pin. The latching mechanism was of a design commonly used on farm gates attached to timber posts.
24 If placed properly, the latching mechanism effectively secured the closed gate. Nevertheless, I am satisfied that there were shortcomings with the latching mechanism. I accept with some reservation the evidence of Brendan Woodley that in August 2006, while the chain was tight, he was able to apply the latching mechanism without difficulty. The reservation is that difficulty in securing the gate was a matter of degree, and his familiarity with the mechanism would be likely to reduce any difficulty in using it. I am satisfied that the latching mechanism was difficult to apply. Senior Constable Taylor, who examined the gate on 3 May 2007, some nine months after the accident, experienced difficulty in attaching the plate to the pin. Brendan Woodley said that the latching mechanism was very similar then to how it was at the time of the accident. I accept Senior Constable Taylor’s evidence that when he tested the latching mechanism the plate did not easily slide down the pin to a secure position below the doubled section of the pin. I accept his evidence that when the plate was attached to the pin, the chain was pulled taut.
25 Although Mr Barlee, a farmer and fencing contractor, did not inspect the gate and latching mechanism until May 2010, he also found that while the plate could be put on the pin, the chain was tight and it was necessary to turn the pin 45 degrees from the vertical position in order to put the plate in position. In his opinion, the chain was approximately three links too short to enable the plate to fit correctly. Michael Eddy, a mechanical engineer and gate manufacturer and installer, who inspected the gate in September 2010, also found it necessary to turn the pin anti-clockwise in order to attach and remove the plate from the pin. He also found that the chain was too short to enable the plate to be attached when the pin was in a vertical position, and although it could be done when the pin was turned on an angle, it was not easy to do so because of the tightness of the chain. In his opinion, one consequence of a tight chain was that the plate did not easily drop to a resting position at the bend of the pin as intended.
26 The other shortcoming with the gate was that the pin of the latching mechanism was located inside the paddock. The evidence of Mr Barlee was that it was common for stock to rub on a gate and not unknown for stock to open a gate by doing so. In his experience, horses tend to stand at gates and grab them with their mouths and bang their knees and feet against them. Mr Eddy also considered that the pin of the latching mechanism should have been outside the paddock to prevent an animal opening it.
27 Dr McLean, a horse trainer with a PhD in animal cognitive psychology and expertise in the behaviour of horses, inspected the gate in May 2010 and July 2011. He also had difficulty attaching the latch due to the tightness of the chain. In his opinion, it is very unlikely that a horse would be able to open the gate if the plate was properly secured over the pin. However, he considered that if the plate was placed only partially over the pin and remained in the section of double steel rod it would be much easier for a horse to use its lips to move the plate off the pin and open the gate. With the plate in that position, Dr McLean considered that a horse, vibrating the gate, could cause the plate to slide off if the pin was not upright.
28 I am satisfied that the latching mechanism was defective in two respects. The chain was too short, making it difficult to correctly fit the plate over the pin, and the pin was located inside the paddock.
29 It is apparent that on 25 August 2006 the horse escaped from the paddock through the open paddock gate. It follows that the latching mechanism had not been securely applied to the gate. There is no evidence of who last used the gate before the horse escaped or when it was used. The possibility that a person did not secure the gate with the latching mechanism at all is equally probable with the possibility that a person applied the latching mechanism incompletely and the horse was able to move the plate off the pin. In those circumstances, I am unable to find on the balance of probability that the deficiencies in the latching mechanism were the cause of the horse escaping from the paddock.
30 The plaintiff alleges that the second defendant, Brendan Woodley, was negligent in failing to shut the gate; failing to ensure that the gate was shut and latched adequately; failing to shut the front gate properly; failing to request the first defendant to instigate an appropriate failsafe system to ensure that any stock which escaped the paddock could not escape the property; and failing to check the gates where the horse and sheep were kept.
31 I make the following findings of fact with respect to Brendan Woodley. He is, and was at the relevant time in August 2006, a viticulturist. He had lived on the property with his wife since 1997. They have three children, aged five, four and one-ish in August 2006. At the relevant time they were the only people residing on the property. Brendan Woodley leased the dwelling and immediate surrounds from the first defendant.
32 He was not the manager of the property. He provided viticulture services to two vineyards on the property, a vineyard with pinot grapes on the northern portion of the property, and a vineyard with shiraz on the southern portion. The pinot vineyard was leased from the first defendant by three parties, Denise Mary Miller, Regan Consulting Pty Ltd and Telarah Wines, a registered business name owned by Allan and Natalie Woodley and Brendan and Tessa Woodley. The shiraz vineyard was leased from the first defendant by Telarah Wines.
33 Brendan Woodley regularly used the driveway from the highway to his home. The driveway was also used by his wife, by members of their extended family, by persons with interests in the vineyards, by contractors and workers in the vineyards and by visitors seeking mushrooms or grapes. It was the practice of Brendan Woodley to leave open the front gate to the property. Although he occasionally put supplementary feed into the feed bin for the horse at the request of his father, it was not the responsibility of Brendan Woodley as tenant of the house and viticulturist to the vineyards to check the gate to the paddock, or to ensure that it was shut and latched properly, or to request the first defendant to instigate a failsafe system.
34 However, in my judgment, a reasonable person in Brendan Woodley’s position, as the only resident (with his immediate family) on the property, the regular user of the driveway, exercising some degree of responsibility with respect to the property, knowing that if the horse escaped the paddock the risk that it would go to the highway and cause injury or death to highway users was high, would adopt the practice of keeping the front gate shut. In accordance with recognised practice on rural properties, it was probable that if Brendan Woodley kept the front gate closed and secured, other persons who used the gate would close and secure it. Such a response to the risk would involve no expense and minimal difficulty or inconvenience. His failure to keep the front gate closed and secured was a breach of the duty of care he owed to users of the adjoining highway.
35 Making an apportionment between the first defendant and the second defendant as to their respective share of responsibility for the accident “involves a comparison of culpability and the relative importance of the acts of the parties in causing the damage … it is the whole of the conduct of each negligent party in relation to the circumstances of the accident that must be subjected to comparative examination” - see Nettle JA, McLean v Meech at 256. In my opinion the culpability of the first defendant greatly exceeded that of the second defendant. I would apportion 90% to the first defendant and 10% to the second defendant.
Third party claim
36 By an amended statement of claim endorsed on a third party notice, the second defendant, Brendan Woodley, claims relief against the third party, Vero Insurance Limited (“Vero Insurance”). The basis of the claim is a policy of insurance taken out with Vero Insurance. The policy which was entitled "OAMPS Home Insurance" was renewed in March 2006. OAMPS was the abbreviated name of the insurance broker, OAMPS Insurance Brokers Limited. It is not a matter of dispute that the premium of $604 for the policy was paid on 27 March 2006.
37 In determining whether Brendan Woodley is entitled to be indemnified by Vero Insurance, it is necessary to decide first the identity of the insured covered by the policy of insurance, and, second, whether the terms of the policy provided cover for Brendan Woodley for his liability as determined in this proceeding.
38 The insurance policy names "A W Osteopathis Services" as the insured. The policy type is described as OAMPS Home Insurance. The insurance details are stated to be home building $266,800 and legal liability $20 million.
39 It is common ground that the meaning of the policy is to be determined objectively according to what a reasonable person, considering not only the text of the policy, but the surrounding circumstances known to the parties, and the purpose of the transaction, would understand the terms of the policy to mean (see Pacific Carriers v BNP Paribas [2004] 218 CLR 451 at paragraph 22). Despite this, no evidence was led of the circumstances in which the policy was taken out, no witness was called, no evidence was given of the person who arranged the policy, or who paid the premium, or of the intended purpose of the policy. No evidence was called about the identity of the entity, AW Osteopathis Services.
40 It seems more probable than not that the word "osteopathis" is simply a misspelling of the word osteopathic".
41 Mr Horgan SC, for Brendan Woodley, submitted that AW Osteopathis Services should be understood to mean Alan Woodley. In support of that submission, he asserted that the name was one that Alan Woodley used, a business name, or the name of his corporate trustee. Mr Horgan also asserted that as the invoice for the premium was sent to AW Osteopathis Services at the address of Alan and Natalie Woodley, it could be inferred that the handwriting on the letter of renewal was that of Alan Woodley and that he paid the premium.
42 These were no more than assertions by Mr Horgan. There was no evidence that Alan Woodley used the name AW Osteopathis Services. There was no evidence that the writing on the letter of renewal is that of Alan Woodley. There was no evidence that Alan Woodley paid the premium. While the address to which the invoice was addressed was that of Alan and Natalie Woodley, they were the directors and shareholders of A Woodley Osteopathic Services Proprietary Limited, and it is just as likely that the corporation paid the premium as Alan Woodley paid it. No evidence was given about the identity of AW Osteopathis Services and the use of that name. It would not have been difficult to prove some of these matters, but the reality is that they were not the subject of evidence. I am not satisfied that Alan Woodley was the insured referred to in the policy of insurance.
43 Looking at the policy as an objective observer, I consider it to be more probable than not that the person referred to as "the insured" was A Woodley Osteopathic Services Proprietary Limited. The name AW Osteopathis Services appears to be an abbreviation of the name of the corporation. It was the corporation which was the owner of the property on the corner of Wandong and Northern Highway, Kilmore, and, importantly, the owner of the house on the property. Although Mr Horgan submitted that it was the whole of the property that was covered by the insurance, the terms of the policy are clear that it was a policy of home insurance indemnifying the insured for damage to the home and legal liability for an event occurring in the home, or in the yard or garden surrounding the home, or on the bordering footpath.
44 The home was owned by A Woodley Osteopathic Services Proprietary Limited. The policy of insurance was for home insurance that covered two matters – home building and legal liability. There was one home building on the property. It was the dwelling owned by A Woodley Osteopathic Services Proprietary Limited and occupied by Brendan Woodley and his family as tenants of the corporation.
45 It is difficult to make sense of the statement in the schedule that, "Your home is rented by the insured from the owner." No suggestion was made that Brendan Woodley was the insured. Alan Woodley did not rent the home from the owner. A Woodley Osteopathic Services Proprietary Limited did not rent the home from the owner. It was the owner of the home.
46 The legal liability cover provided in the policy was for compensation for bodily injury, death, illness to the insured or the insured's family, damages to property owned or controlled by someone other than the insured or the insured's family, which occurred in the home or the yard or garden of the house or on the bordering footpath, for which the insured, or the insured's family, was legally responsible as owner and occupier of the home or yard, or as users of the bordering footpath.
47 Neither Brendan Woodley, nor the event, the subject of this proceeding, come within the terms of the cover. Brendan Woodley was not family of the insured. The accident on the Northern Highway did not occur in the home or in the yard or garden surrounding the home, or on the bordering footpath.
48 I am not satisfied that Brendan Woodley is entitled to be indemnified by Vero Insurance for his liability for the event, the subject of this proceeding. The third party proceeding should be dismissed.
The Commission’s entitlement to indemnity
49 The issue of the amount of the Commission’s entitlement was not resolved and the proceeding was adjourned to 30 January 2012. The Commission was directed to file and serve the evidence on which it relied by 9 December 2011, and the defendants by 20 December 2011. Save for the morning of 30 January 2012, when there was argument relating to an unsuccessful application by the Commission to amend its statement of claim in order to seek entitlement to indemnity in respect of injury to Dale Burnett and Hannah Burnett, there was no appearance on behalf of the second defendant for this part of the proceeding.
50 Pursuant to subsection (1) of section 104 of the Transport Accident Act 1986 the Commission is entitled to be indemnified by the defendants for such proportion of the amount of its liability to make payments under the Act in respect of the injury to Jaimee Burnett and the death of Leanne Burnett as is appropriate to the degree to which the injury and the death were attributable to the negligence of the defendants.
51 Subsection (2) places a limit on the liability of the defendants. It provides that the liability of a person under subsection (1) shall not exceed the amount which, but for the Act and Parts VB,VBA and X of the Wrongs Act, the person would be liable to pay to the injured person in respect of the injury, or in the case of death, to the dependants of the deceased. Subsection (2) provides a ceiling or limit to the amount to which the Commission is entitled to be indemnified. The parties agree that Parts VB, VBA and X of the Wrongs Act have no application to the present matter. The limit of the defendants’ liability is determined by the amount which they would be liable to pay to the dependants of Leanne Burnett in respect of her death, and to Jaimee Burnett in respect of her injury, but for the Act.
52 Thus section 104 requires determination of the following matters: the amount of the liability of the Commission to make payments under the Act in respect of the injury to Jaimee Burnett; whether that payment exceeds the amount the defendants would be liable to pay but for the Act; the amount of the liability of the Commission to make payments under the Act in respect of the death of Leanne Burnett; and whether that payment exceeds the amount the defendants would be liable to pay but for the Act.
The evidence of Dale Burnett
53 Dale Burnett was 39 years of age at the time of the accident, his date of birth being 31 March 1967. Leanne Burnett was 32 years of age, her date of birth being 26 February 1974. They were married on 29 March 1997. They had been married for 9 years and 5 months when Leanne Burnett died. There were two children of the marriage, two daughters, Jaimee, who was 8 years and 7 months at the time of her mother’s death, her date of birth being 20 January 1998, and Hannah, who was 3 years and 11 months, her date of birth being 23 September 2002.[3] Jaimee was a student at primary school. Hannah had not commenced school or kindergarten. She commenced kindergarten in 2007.
[3] In paragraph 3 of his affidavit Mr Burnett deposed that Hannah’s date of birth was 23 September 2000, but counsel agreed that this was an error and that her date of birth was 23 September 2002.
54 Leanne Burnett and her daughter Jaimee shared an interest in horses. Jaimee belonged to a pony club. Mrs Burnett spent approximately an hour or two a day after school during the week with Jaimee, in activity with horses, and 5 to 10 hours on the weekend. She spent another hour or two a day with horses herself. Every spare minute they had they were out riding horses. She helped a lot at the pony club which Jaimee attended. It included a monthly meeting on a Sunday and other times during the month and on weekends. She took Jaimee and her horse to the pony club and was involved in her activities there, including instruction of her and instruction of other children there. Jaimee was interested in horses as soon as she could walk. She first attended pony club when she was 6. The family owned four horses and a small pony. Three were Mrs Burnett’s and one was Jaimee’s, but Jaimee did not only ride one horse. Jaimee and her mother spent a lot of time together in the care of the horses, feeding, grooming and riding them. Mrs Burnett participated in horse events on a weekend maybe three times a year.
55 The horses were sold or given away following the accident. One was sold for $2000 and another for a few hundred dollars. The float was sold for $5,500. The Land Rover used to pull the float was sold for just under $20,000.
56 Mrs Burnett did the majority of the domestic chores – cleaning, washing, ironing, preparing meals, cooking, general upkeep of the garden. Mr Burnett was absent at work each weekday and on weekends was involved in the paddocks of their property, erecting and maintaining fences. They did some renovations to the house. Mrs Burnett did most of the painting involved with the renovation. Mr Burnett did some domestic chores tidying up, usually when Mrs Burnett was away. He ironed his shirts. She did the shopping. She drove Jaimee to school. She helped with her homework. She attended the school and helped with reading. She supervised and educated her daughters, particularly the older daughter Jaimee, in her personal hygiene and development, facilitated their activities with other children, and encouraged their reading. She cared for Hannah in her daily activities.
57 Dale Burnett and Leanne Burnett wanted their children to do their best at school and probably have tertiary education. They discussed sending them to private schools in the area, Assumption College and Kilmore International School, and believed that it would give them their best entry into tertiary education. Jaimee, who will be in year 9 in 2012, is doing well at secondary school and Hannah, who had an early diagnosis of Aspergers Syndrome and is in grade 3 this year, is now at the expected level. The cost of private school would be $10,000 to $15,000 a year.
58 Before the marriage Leanne Burnett was employed full time as a clerk. At the time of her death she was employed on a part time basis by Kilmore Pastoral Pty Ltd. She had been so employed since 2005, approximately 12 months before the accident. She performed administrative duties in the insurance business of the company. She usually worked one day a week. On occasions she worked two days a week and on occasions worked a couple of hours at home. Mr Burnett did not know definitively what his wife earned, but thought it would have been around $400 or $500 on a good week at the higher end and possibly $200 to $300 at the lower end.
59 Mrs Burnett was modest in her expenditure, save for costs associated with her interest in horses. The money that she earned in her employment was mostly spent on her own needs and expenses related to the horses. She contributed a minimal amount to household items.
60 Leanne Burnett intended to accept an offer made by her employer to work four days a week. She was interested in the work and had obtained qualifications to act in matters of insurance. She considered that she would be able to do some work from home and that it would not interfere with her care of the children. The increase in her income would have been available for the general support of the family.
61 At the time of his wife’s death Dale Burnett was employed by Ron Gee Enterprises Matilda Pty Ltd in Somerton as general manager. The company built Matilda Motor Homes. He had been so employed since 20 March 2006. He enjoyed his work and had been successful in improving the performance of the company. He was absent from home during the week, leaving most mornings at 6 am and returning in the evening at 6 pm. He often worked on Saturday morning and sometimes on Sunday, working on average 5 hours on a weekend. His earnings were approximately $100,000 p.a. plus compulsory superannuation and a car.
62 Mr Burnett did not return to that employment following the death of his wife, but remained at home to care for his two young children. It was a full time task. He spent minimal time in farm work. In February 2007, approximately 6 months after the accident, he commenced employment as a delivery driver with Mitre 10. He worked from 9am to 3pm for 3 or 4 days a week. This enabled him to provide the necessary care for the children. He earned approximately $300 per week. This employment lasted approximately 3 months. Hannah was at kindergarten, initially four days a week and later five.
63 From approximately June 2007 to May 2008, he did other odd jobs. From May 2008 to May 2009 he was employed as a fencing contractor, initially as an employee, and then as the proprietor of the business. He worked approximately 20 to 30 hours per week and earned approximately $600 net per week.
64 In May 2009 Mr Burnett commenced employment as production manager at DAIR with a salary of $80,000 p.a. plus superannuation and a car. He remained in that employment until April 2011, when he commenced employment as production manager with McConnell Seats. In that employment his income is similar to that at Ron Gee Enterprises, and he has the use of a car.
65 In May 2009, according to his affidavit, he commenced a domestic relationship with Keryn Kirkpatrick. In cross examination he said that they started living together at “the end of 2008” or thereabouts. Later he said that “Keryn was around” by February 2009. She has 2 daughters of similar age to Mr Burnett’s daughters. Mr Burnett and Ms Kirkpatrick married on 12 November 2011. Since they have been living together Keryn Kirkpatrick does the sort of housework that Leanne Burnett was doing. She has taken over the role of housekeeper, wife and stepmother. They share responsibility with respect to Jaimee and Hannah, but not with respect to his wife’s two children, as their father sees them regularly. She works 5 days a fortnight, from 9 to 3.
The evidence of Gregory Stute
66 At the time of Leanne Burnett’s death Gregory Stute was the managing director of Kilmore Pastoral Pty Ltd. Leanne Burnett commenced employment with Kilmore Pastoral Pty Ltd in 2005. Mr Stute was absent overseas when she was employed, but he understood that she had worked for the company for about 12 months at the time of her death. She was employed as a part time administration assistant and worked on Wednesdays from 9am to 5 pm.
67 While she was employed Leanne Burnett completed a course with Insurance Australia Group to obtain accreditation as an insurance representative. She was qualified to sell insurance. She assisted Liz Lush, the employee who carried out the insurance work for the company. Ms Lush was originally employed for 5 days a week, but at her request reduced that to 4 days a week in May 2006. She intended to leave the job in September/ October 2006.
68 Mr Stute asked Leanne Burnett to fill the position taken by Liz Lush. He intended to employ her to take over Liz Lush’s job. She was paid $934 net per fortnight ($467 net pw). She also received a car allowance. He intended the job to be for 4 days a week, at the same rate of pay as that paid to Ms Lush, but without a car allowance. Leanne Burnett expressed the wish to take this position. She was going to work 4 days a week.
69 As an employer the company reviewed the salaries of it’s employees every 6 months and generally increased them.
70 Following the death of Leanne Burnett and the retirement of Liz Lush the insurance work for the company was performed by Linda Wong as an independent contractor at a rate of $22 per hour. She worked 5 days a week.
71 From 9 July 2007 the insurance work, sales and administration, was performed by Sharon Mallia. It was full time work. She was paid an annual salary of $35,000 plus an incentive bonus of $2,500 in her first year. By 2010 her salary had increased to $41,000. She received 9% superannuation.
72 Leanne Burnett was a conscientious employee. She was very competent, always punctual, always reliable, very good at her work, learnt quickly, very good with clients and got on well with everybody in the office. Mr Stute considered her to be more competent than Ms Lush, and he had more confidence in her to promote the business. He considered her to have more drive. She was able to get more business. She was very computer literate. She and Linda Wong were fairly similar as workers. Sharon Mallia had a background in the banking business and she also had a lot of drive.
73 Mr Stute sold the business of Kilmore Pastoral Pty Ltd in September/October 2010 to another pastoral company, Rodwells. Sharon Mallia continued to be employed by Rodwells, doing the insurance work, sales and administration. She runs the insurance side of Rodwells in Kilmore.
Liability of the Commission in respect of the injury to Jaimee Burnett
74 The Commission has a liability to make payments under the Act in respect of injury to Jaimee Burnett.
75 Jaimee Burnett was injured in the accident. She was trapped in the car for some time and suffered a five minute loss of consciousness before being taken by helicopter to the Royal Children’s Hospital. A CT scan revealed a left frontal extradural haematoma and right frontotemporal contusions. She also had a fractured finger and facial bruising. She was observed for five days at the hospital and discharged.
76 According to the two brief reports of Dr Dunne, a physician at the Royal Children’s Hospital, when Jaimee was reviewed ten weeks after the accident her father reported that after two or three weeks of fatigue and headaches she had gradually returned to normal and was attending school full time. There were no concerns about changes in her academic ability. When reviewed on 17 May 2007, nine months after the accident, there were no reported cognitive or educational problems, the offer of a neuropsychological assessment had been declined, she had seen a counsellor at school a few times, and her psychological issues were under control.
77 It is not in dispute that the payments made by the Commission in respect of the injury to Jaimee totalled $9,709.15, being the cost of the ambulance of $6,796.40, the costs of the hospital of $2,147.15 and the costs of doctors of $765.60.
78 It is necessary to consider whether the liability of the defendants to indemnify the Commission for payments under the Act in respect of the injury to Jaimee Burnett exceeds the amount the defendants would be liable to pay to her in respect of the injury, but for the Act.
79 Mr Meldrum QC for the Commission submitted that subsection (2) of section 104 required an assessment to be made of damages to which Jaimee Burnett would be entitled for the injuries she suffered in the accident. He submitted that in addition to damages for medical and hospital expenses an assessment should be made of damages for pain and suffering in order to determine the ceiling for the Commission’s entitlement to be indemnified by the dependents. He submitted that the damages for pain and suffering should be assessed at $50,000 to $80,000.
80 Mr Meldrum submitted that a declaration of the Commission’s entitlement to indemnity pursuant to section 104(1) is a once and for all judgment, which precludes a further claim pursuant to the section if further payments are made by the Commission. I am not persuaded that is correct. The section gives the Commission an entitlement to be indemnified for its liability to make payments under the Act. The reasons which require an award of damages to be once and for all, past, present and future, are not applicable to the Commission’s entitlement to indemnity pursuant to this statutory provision. I see no reason why the Commission would be precluded from making a further application, if it was necessary.
81 I agree with Mr Titshall QC that a determination of damages for pain and suffering with respect to the injuries of Jaimee Burnett is neither necessary nor appropriate. Jaimee Burnett was not a party to this proceeding and was not represented. She is a child. The evidence concerning her injuries is confined to two brief reports of Dr Dunne in November 2006 and May 2007 and some brief observations in her father’s affidavit. The evidence that there is suggests that she has had no treatment since being discharged from hospital in August 2006. The court is hardly in a position to make a responsible assessment of damages for her pain and suffering in these circumstances.
82 The payments made by the Commission in respect of Jaimee Burnett’s injuries were payments made in 2006. There have been no payments since. They are the payments made to date. It appears unlikely that there will be any further payments. It is not in dispute that the Commission is entitled to be indemnified by the defendants for these payments. Clearly, there is no real prospect of the payments made by the Commission exceeding the amount the defendants would be liable to pay to Jaimee Burnett in respect of her injuries but for the Act.
83 I am satisfied that the payments made by the Commission under the Act in respect of the injury to Jaimee Burnett do not exceed the amount which the defendants would be liable to pay to Jaimee Burnett, but for the Act. The Commission is entitled to be indemnified by the defendants for the payments made under the Act in respect of the injury to Jaimee Burnett, to be apportioned as to 90% to the first defendant and as to 10% to the second defendant.
Liability of the Commission in respect of the death of Leanne Burnett
84 The Commission has made payments totalling $20,181.25 in respect of the death of Leanne Burnett for medical and funeral expenses (being hospital $3,762.65, ambulance $6,796.40, doctors $2,565.10, funeral expenses $7,057.10). It is not in dispute that the Commission is entitled to be indemnified by the defendants for this amount.
85 The Commission has also made payments to Dale Burnett totalling $293,075.02 for loss of earnings and dependency benefits. The payments commenced with a dependency lump sum on 25 August 2006 and regular dependency payments on a fortnightly basis thereafter to the present and continuing. The fortnightly payments were initially $216 and by January 2012 were $1321.
86 The first defendant contends that the amount paid by the Commission to Dale Burnett exceeds the amount which the defendants would be liable to pay to the dependents of Leanne Burnett in respect of her death, but for the Act. It is necessary therefore to determine the amount that the defendants would be liable to pay to the dependents of Mrs Burnett, but for the Act.
87 The issue of whether the amounts which the Commission is liable to pay the dependents of Leanne Burnett exceeds the amount which the defendants would be liable to pay to her dependents, but for the Act, has been the principal issue in contention between the parties in the third aspect of the proceeding. The parties agree that the amount the defendants would be liable to pay, but for the Act, must be determined on the basis of an amount to which they would be entitled pursuant to Part III of the Wrongs Act 1958 as damages for wrongful death. The Commission contends that the amount is in the order of $1,418,564 plus interest. The first defendant contends that the amount paid by the Commission to the dependents to date exceeds the amount that the defendants would be liable to pay, but for the Act.
88 It is necessary therefore to determine the amount that the defendants would be liable to pay to the dependants of the deceased pursuant to a Wrongs Act claim I respect of her death.
89 The dependants of Leanne Burnett at the time of her death were her husband Dale Burnett and their children Jaimee and Hannah. The amount which the defendants would be liable to pay to the dependents with respect to the death of Leanne Burnett is confined to their pecuniary loss resulting from her death. In addition to funeral and medical costs, the loss to the children and husband of the deceased is the loss of the financial support and the loss of services that they had a reasonable expectation to benefit from, had Leanne Burnett lived. What is required is assessment of the loss of a reasonable expectation of that benefit.
90 The loss suffered by the dependants of Leanne Burnett occurred at the time of her death. In Ruby v Marsh Gibbs CJ observed:[4]
The expectation of future benefit was destroyed by the death and no subsequent event can increase or diminish the extent of the pecuniary loss then suffered, although it is true that subsequent events may be relevant to the assessment of damages in so far as they render it unnecessary for the court to speculate about possibilities that may have existed at the date of death when the facts themselves have become known.
[4](1975) 132 CLR 642 at 658
91 As the damages are to be assessed at the date of Mrs Burnett’s death, when the loss occurred, the assessment requires consideration of the hypothetical situation of what would have happened if she had not been killed. The process is fraught with contingencies, and requires consideration of matters which are inherently uncertain, and for which mathematical calculations provide no more than a guide.
De Sales v Ingrilli
92 In De Sales v Ingrilli.[5] Gleeson CJ explained the calculation of damages for the loss of a reasonable expectation of pecuniary benefit in the following terms. It “usually involves calculating a primary sum and then making such further adjustments or allowances as are necessary to produce a result that gives a true reflex of the loss. The nature of such adjustments and allowances will be influenced by the manner in which the primary sum is calculated.”
[5](2002) 212 CLR 338 at 348
93 Determining the primary sum involves several elements. They are “speculative judgments, which cannot be made with accuracy.” They include determination of three matters – (1) “what benefits the deceased would have brought to the family, in the form of either income or the provision of services”; (2) “the share of that benefit that would have been enjoyed by a relative during the deceased’s lifetime”; and (3) “the period for which a relative could reasonably expect to receive such the benefit. For example, a surviving spouse may say it was reasonable to expect to receive a benefit measured as a share of the deceased’s income until the deceased’s expected age of retirement. A child of the deceased may reasonably expect to receive such a benefit until the child reaches an age of expected financial independence.”
94 “The primary sum awarded is the present value of a relative’s total expected benefit. The calculation of the primary sum might itself be done by a method that involves allowing for contingencies such as are taken up in actuarial calculations of life expectancy, and the present value of a future income stream. … The court may then be required to allow for further contingencies that may affect the loss of benefit sustained by the claimant.”
95 Gleeson CJ[6] identified two categories of contingencies. First, contingencies such as the ‘vicissitudes of life’ which “may be relatively unlikely to occur, or their occurrence may be impossible to predict with any accuracy” and which “may be provided for by way of a general allowance”. Second, contingencies which “may be more likely to occur and more susceptible to specific calculation in the circumstances of a particular case.” For this category “it may be more appropriate to apply a special discount for the specific contingency in question.” Examples of this category are when there is evidence “that a particular person has a higher chance of early death, because of an existing illness”, or where the “evidence showed that the marriage was very likely to fail” because “the deceased had a long-standing relationship with another woman, with whom he had a child.” In this second category of contingencies “it may be appropriate to apply a larger and separate discount for the specific contingency”.
[6]at 348 – 9 paras 15 - 19
96 Allowance may be made for the contingency of remarriage “either as part of a general allowance for vicissitudes or as a specific allowance”.[7] “If there has been a remarriage, or if there is in prospect a marriage to a particular person, the court will be in a position to examine the circumstances of the particular case, and these may, or may not, call for a separate, and perhaps significant discount in a proper case.”[8]
[7]p 351 para 24
[8]p 352 para 27; see also paras 31 - 40
97 In their joint judgment in De Sales v Ingrilli, Gaudron, Gummow and Hayne JJ gave some emphasis to the difficult and unsatisfactory nature of assessing the prospects of remarriage of a surviving spouse.[9]
[9]pp 365 – 367 paras 73, 74, 76, 77, 78
Seldom, if ever, will a court be able to make any useful prediction about whether, or when, one human being will form a close emotional attachment with another. ...
Even if these difficulties of predicting that a surviving spouse will form some new and continuing relationship were to be surmounted, the financial consequences of its occurrence are even less predictable. Who is to say that the new relationship will endure, and that, if it endures, it will provide financial advantage to the person who is now the surviving spouse? And if it is a financially beneficial relationship at its outset, who is to say what events will intervene thereafter? ....
It is, therefore, wrong to treat the prospect of remarriage or the prospect of forming some new continuing relationship as a separate item for which some identified discount must be made from whatever calculation is made of the present value of future benefits that would have flowed from the deceased to the relatives. .... It is wrong to single it out for special and separate allowance. ....
That is not to say that, if there is evidence at trial that a new relationship has been formed, account may not be taken of evidence revealing whether that brings with it financial advantage or disadvantage.
Section 19(2) of the Wrongs Act
98 In Victoria, following the decision of the High Court in De Sales v Ingrilli, the position with respect to remarriage or re-partnering of the deceased’s spouse was altered by the Wrongs (Remarriage Discount) Act 2004. It amended s 19(2) of the Wrongs Act 1958 to provide as follows -
“In assessing damages in an action under this Part, that is commenced on or after the commencement of the Wrongs (Remarriage Discount) Act 2004, no separate reduction may be made on account of –
(a) the remarriage or formation of a domestic partnership; or
(b) the prospects of remarriage or formation of a domestic partnership -
of the surviving spouse or domestic partner, or a surviving former spouse or former domestic partner, of the deceased person.”
99 In his second reading speech the Attorney General stated that the bill was intended to reflect the decision in De Sales v Ingrilli “in which the High Court found that the ‘remarriage discount’ as it was known, no longer applied in Australia” . He stated:[10]
“..the bill in no way prevents the court from making a general discount in these cases for those things recognised as the ‘vicissitudes of life’. … I note that nothing in the bill prevents, for example, the court from taking into account the fact that the plaintiff has married or may marry a wealthy partner. However, this simply would be one of many factors considered in the context of the vicissitudes of life, given no more or less weight than any of the other general factors which make up the vicissitudes of life.”
[10]Hansard 29 October 2003 p 1295
100 The amendment clearly removed from the assessment of damages a separate reduction for remarriage or formation of a domestic relationship. It is not only the prospects of remarriage or partnership that are not to be separately taken into account, but the actual remarriage or formation of a domestic partnership. Remarriage and re-partnership, and the prospects of such happenings, may be treated as part of the general vicissitudes of life.
Loss of income
101 It is convenient to consider the benefit that the deceased would have brought to the family in the form of income in two stages, the income to the date of trial and the income from the time of trial.
102 At the time of her death Mrs Burnett was employed one day a week earning $126.45 net per week. For the period of five weeks from 26 August 2006 to 30 September 2006 her expected earnings were $632.25.
103 I am satisfied that it was Mrs Burnett’s intention to increase her employment to four days a week. I accept that on 1 October 2006 she would have taken the position at Kilmore Pastoral Pty Ltd in which Ms Lush was previously employed attending to the insurance work, both sales and administration. Mr Stute’s evidence was that she was an excellent and capable employee. Initially her wage would have been the same as Ms Lush received, $467 net per week. Thereafter she would have received salary increases from time to time, possibly at six monthly intervals. In 2007 Ms Mallia was being paid $35,000 pa for that work, but working five days a week, and in 2010 she was being paid $41,000. My understanding of Mr Stute’s evidence is that he considered that Mrs Burnett was capable of doing the work in four days a week and he would have endeavoured to maintain that arrangement. Nevertheless, if Mrs Burnett was successful with the work, and he expected she would have been, it may have become necessary for her to work five days a week, as Ms Mallia later did.
104 On the basis that Mrs Burnett would have continued working four days a week for most of the period and received annual increases in the order of 5% on her net weekly wage, it is reasonable to allow an amount of $530 as the average of the loss of her net weekly wage. For the period of 276 weeks to the time of trial that is a loss of $146,280.
105 It is necessary then to consider the loss of income of the deceased from the time of trial into the future.
106 The deceased was born on 26 February 1974. Had she lived, in February 2012 she would have been 38 years of age. It is probable that she would have been working four or five days a week, and if not earning an amount equal to that later paid to Sharon Mallia, a wage similar to that amount, possibly less. The sum of $600 net per week is a reasonable amount to allow. In February 2012, Dale Burnett was almost 45 years of age. His expected working life can be reasonably considered to be a further 20 years, to 2032, when he would be 65 years of age. He is a man who has filled senior management positions. Had she lived, in 2032, Leanne Burnett would have then been aged 58. It is unlikely that she would have worked for a lengthy period after Mr Burnett’s retirement. It is reasonable to allow for the loss of her income for 20 years from the time of trial.
107 The present value of $1 per week for 20 years at 3% compound interest with no allowance for mortality is 788.[11] The present value of $600 per week using the multiplier of 788 is $472,800.
[11]Luntz Assessment of Damages 4th edition Appendix Table 2
108 The total loss of income as a consequence of the death of the deceased is $619,712.25 (being $632.25 to 1 October 2006, $146,280 to time of trial and $472,800 for the future).
109 In February 2012 Jaimee Burnett would be 14 years of age and Hannah Burnett 9 years of age. Dale and Leanne Burnett had ambitions for their daughters to receive a good secondary education at private schools and to proceed to tertiary education or training. It is reasonable to consider that the girls would have been largely dependent on their parents until aged 21, that is, for 7 years until 2019 for Jaimee, and 12 years until 2024 for Hannah.
110 I do not accept the submission of Mr Titshall that money earned by Mrs Burnett would have been spent on herself and her passion for horses. It is artificial to separate her involvement with horses from Jaimee’s involvement with them. It was an interest of each of them and very much a shared activity and had Mrs Burnett lived, it is likely that it would have been increasingly so.
111 It is reasonable to consider that in the period of approximately 20 years to 2032 when the deceased would have continued to work, for half of that period half of Mrs Burnett’s income would have been used for the benefit of Jaimee and Hannah, for their clothing, personal costs, costs associated with their recreation and interests including horses, assistance with the costs of their education, and the general costs of the family and the household, including the cost of holidays. When the education of Jaimee and Hannah was completed, during the remaining half of the period, and having regard to Mr Burnett’s income, it is likely that a lesser proportion of Mrs Burnett’s income would be used for the benefit of Mr Burnett and the household, something in the order of 25%.
112 Taking these matters into account, the share of the benefit of the income of the deceased which the dependants would have reasonably expected to have enjoyed should be assessed at 40% of that income, that is, $247,884.
Loss of services
113 At the time of her death Leanne Burnett provided virtually all of the domestic services necessary for the household comprising her and her husband and their two children then aged 8 and 4. Dale Burnett attended to only a small proportion of the domestic tasks. He worked full time in a responsible management position, leaving home at 6 in the morning and returning in the early evening and working on weekends. The family lived on a property with a dwelling and sufficient land to keep several horses.
114 It was expected that from 1 October 2006 Mrs Burnett would have increased her paid employment from one to four days a week. Obviously when that occurred she would have significantly less time to attend to household tasks.
115 In 2007 Jaimee would continue at primary school and Hannah would commence at kindergarten. In these fairly typical domestic circumstances, it is likely that Mr Burnett would have assumed a greater share of the domestic tasks, but that the major portion of them would continue to be performed by Mrs Burnett. In the typical household she would squeeze them into the time she had, with less time for her personal interest and activities, more housework at weekends, perhaps done less often and more quickly.
116 I do not accept Mr Meldrum’s submission that 40 hours per week be allowed for the time the deceased was involved with household services. His submission that 40 hours per week should be allowed “as prescribed by s 19B of the Wrongs Act”, somewhat begged the question as the section provides for calculation of damages for gratuitous care “If ... the court is satisfied that the deceased would .. have provided gratuitous care to his or her dependants for not less than 40 hours per week”, and provided for an upper limit.
117 The evidence of Susan Rogan, who carries on business providing home care, was that the current rates charged for a person caring for children of school age is on average $36 an hour. The standard rate of pay to the person providing the work is $25 an hour. A rate of $25 per hour to allow for the value of domestic services appears reasonable.
118 The evidence is that the deceased did the majority of the domestic tasks, took Jaimee to school, assisted her in activities with horses, and undertook tasks such as household painting. Doing the best I can, I consider that in circumstances where she would have been working four days a week, an assessment based upon 4 hours a day, or 28 hours a week, is reasonable. Those hours may be longer in the period when children are at home, and possibly less after that, but overall it is a reasonable time to allow.
119 For the period of 282 weeks from the date of accident to the time of trial the value of the services should be assessed at $197,400 (282 x 28 x $25).
120 In the ordinary course of events, subject to contingencies, the deceased would have continued to provide those services during her life and during the life of her spouse. Mr Burnett was 45 years of age at the time of trial. His expectation of life is 33.75 years.[12] The deceased would have been 38 years of age at the time of trial. Her expectation of life would have been 44.93 years.[13] A reasonable period to allow for the continuation of the services is 33 years.
[12]Luntz Table 6
[13]Luntz Table 7
121 The present value of $1 per week for 33 years on the 3% tables is 1,100.[14] Allowing for a weekly rate of $700 (28 x $25) using the multiplier of 1100, the amount required to provide that sum is $770,000.
[14]Luntz Table 2
122 The total of the calculation for loss of services is $967,400 (being $197,400 for the period to the time of trial, and $770,000 for the period after the time of trial).
Loss of superannuation
123 The reasonable expectation was that the deceased would receive superannuation based upon contributions of 9% of her salary. The total loss of her income has been assessed at $619,712. At 9% the superannuation contribution applicable to that sum is $55,774. It is reasonable to allow 40% of that sum as being the loss of the dependants, that is, $22,309.
Vicissitudes of life
124 An allowance should be made for the general vicissitudes of life such as illness, premature death, unemployment, separation, divorce, remarriage. Both Dale Burnett and Leanne Burnett were relatively young at the time of Mrs Burnett’s death. They were in good health. Mr Burnett has in fact remarried and his present wife provides household services which were provided by the deceased. Victorian courts have commonly allowed a deduction of 15% for the general vicissitudes of life.[15] Taking into account Mr Burnett’s remarriage a discount of 20% is appropriate.
Total assessment
[15]see, for example, Evans v Anderson [1992] 1 VR 411 at 428
125 I would assess the damages the defendants would be liable to pay the dependants pursuant to a Wrongs Act claim for the death of Leanne Burnett as follows:
Loss of benefit of deceased’s income $247,884
Loss of benefit of deceased’s services $967,400
Loss of benefit of deceased’s superannuation $22,309
$1,237,593
Discount of 20% for contingencies $247,518
$990,075
Interest
126 This of course is not a judgment in favour of the dependants of the deceased. In the event of such a judgment they would be entitled to damages in the nature of interest. As the financial support of the dependants by the deceased was destroyed at the time of her death, the loss of that support must be treated as having been incurred at that time and interest calculated from that time.[16]
Conclusion
[16]see Ruby v Marsh (1975) 132 CLR 642 at 646, 658, 660
127 I am satisfied that the payments made by the Commission under the Act in respect of the injury to Jaimee Burnett do not exceed the amount which the defendants would be liable to pay to Jaimee Burnett, but for the Act. The Commission is entitled to be indemnified by the defendants for the payments made under the Act in respect of the injury to Jaimee Burnett, to be apportioned as to 90% to the first defendant and as to 10% to the second defendant.
128 The Commission is entitled to be indemnified by the defendants in a sum not exceeding $990,075, and appropriate interest, to be apportioned as to 90% to the first defendant, and as to 10% to the second defendant, for payments made under the Act in respect of the death of Leanne Burnett.
129 I shall hear the parties on the matter of interest, the form of orders and the matter of costs.
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