Telkesi v Cowland No. DCCIV-98-1116 Judgment No. D82

TELKESI v COWLAND
[1999] SADC 82

Judge Muecke
Civil

In this action the plaintiff claims damages pursuant to ss19 and 20 of the Wrongs Act, 1936. The plaintiff was the wife of Mr Zsolt Telkesi (“the deceased”) who died as a result of injuries he suffered when a motor vehicle driven by the defendant collided with the motorcycle he was riding on Thursday 24 August 1995. The accident occurred on the Princes Highway near Monteith, which is near Tailem Bend in the Murraylands of South Australia.
The plaintiff claims such damages as the Court “thinks proportioned to the injury resulting from such death” (Wrongs Act, s20(2)). The plaintiff brings this action for her benefit alone as the wife of the deceased. There were no children of the marriage.
The defendant’s liability to pay damages to the plaintiff is not in dispute. This action comes before me to assess the plaintiff’s damages.
The plaintiff was born on 28 September 1959, and was 35 years of age at the time of her husband’s death. The deceased was 41 years of age when he died, being born on 17 July 1954. The plaintiff and the deceased married on 12 September 1978 when the deceased was 24 years of age and the plaintiff was 18 years of age. At the time of the deceased’s death, he and the plaintiff had been married for just a few weeks short of 17 years.
The plaintiff matriculated at Findon High School in 1976. She obtained admission to study a Bachelor of Science Degree at the University of Adelaide in 1977, but she deferred doing so for a year to see if she could get some employment and to assist her mother to pay for the necessities of study. She commenced a Bachelor of Science course in 1978, but did not complete the first year of study. She and the deceased married on 12 September 1978. She said that her husband had a view that it was his role to support his wife and whilst she didn’t entirely agree with that, she respected her new husband’s wishes and agreed that she would not work but would perform duties associated with the household. Her husband worked as a machinist. The plaintiff attempted to return to her Bachelor of Science studies in 1982 but, again, did not complete the first year of study.
At the end of 1982 the couple were informed by their then landlord (from whom they were renting in Prospect, in metropolitan Adelaide) that they could no longer stay in that rented accommodation. They unsuccessfully sought other accommodation within their financial means. The parents of the deceased offered the couple use of a house and property owned by them at Tailem Bend. That offer was accepted and the deceased and the plaintiff moved to Tailem Bend to live. The deceased obtained some work in the area as a machinist. He then suffered industrial dermatitis which meant that he could no longer work as a machinist. He commenced a mechanical engineering course and sought employment in areas other than as a machinist. Although he did not obtain his qualifications as a mechanical engineer, he obtained work as an hourly paid instructor at the Murray Bridge campus of the Department of Training and Further Education. He also obtained employment with an organisation called Community Lifestyles Incorporated which was, and is, an organisation funded by the South Australian Treasury and which cares for intellectually disabled people and disadvantaged youth. For some years he worked for those two organisations. In late 1987 the plaintiff and the deceased agreed to purchase from the deceased’s parents the house and property at Tailem Bend in which they were living. A mortgage was signed whereby the plaintiff and the deceased were to repay to the deceased’s parents the sum of $27,000 at an annual interest rate of 13 per cent. Payments were made by the plaintiff and the deceased until the deceased’s death in August 1995. The plaintiff has continued to make payments since that time. The plaintiff has, since her husband’s death, continued to live in the house at Tailem Bend. She is still living there.
As part of the “agreement” with her husband that he work and she perform household duties, it was also her role to be responsible for the finances associated with the marriage. That included paying all the bills, including the mortgage after it was entered into in September 1987.
Between the years 1983 and 1991 the plaintiff and the deceased lived in the house at Tailem Bend. The deceased would work at TAFE and with the Community Lifestyles organisation. The plaintiff would perform household duties, including buying food and preparing it, and tending to the finances. The couple had a modest social life, the principal part of which was to attend at the Tailem Bend Hotel each Friday night where they both took part in the Friday night darts competition. They would socialise with friends during that evening, the deceased would have a few schooners, and they would return home. At nights during the week, the deceased would either watch television or prepare for the next day’s teaching at TAFE. The couple would occasionally go to the movies, although the deceased would sometimes not accompany the plaintiff because he was not as interested in the movies as the plaintiff. One interest the deceased did have was in buying old vehicles (it seems mainly vehicles manufactured by Volkswagen) and working on them in his spare time. Relatively small amounts of money were apparently involved in the purchase of these vehicles, and the three vehicles about which I heard evidence were still at the plaintiff’s home in Tailem Bend at the time of the trial.
Other interests of the deceased included attending regularly at church; doing volunteer work for the Offenders’ Aid and Rehabilitation Service (which included doing voluntary work with prisoners at Mobilong Prison outside Murray Bridge); and organising parcels or other assistance for people in the community for St Vincent de Paul.
In 1991 the plaintiff commenced studying at the Murray Bridge TAFE to seek to obtain an Associate Diploma in Accounting. She did not, and has not, completed the Associate Diploma, but had nearly completed it in about 1994. Whilst studying at TAFE she also took on some specialised tax training. This was through a private organisation. During the time she was at TAFE she worked for a couple of hours a week with Our House Tailem Bend Community Centre Incorporated. Between 18 May 1993 and 30 June 1993 she earned $80 gross from that employer. She continued doing some accounting-type work into the financial year 1993-1994. She did some work for Our House Tailem Bend Community Centre Incorporated and for an accounting practice based in Murray Bridge called Tax Force. That was a business name operated by various companies. With Tax Force she was doing reception work and was learning how to process business books and, at tax time, was doing tax returns. Her employer was a tax agent. In the 1993-1994 financial year the plaintiff had a taxable income of $1,464. She paid no tax.
The plaintiff gave evidence that the commencement of her studies was as a result of discussions she had had with her husband about what might happen if one of the married couple died. The plaintiff said that during these discussions she was at a loss as to what she would do if her husband died. So it was decided that since she had started studying and was gaining qualifications, she would look at getting some work in the field to put the qualifications to use. Otherwise, if he died, or was retired, or some other event happened, she would not be so old as to have no reasonable prospect of getting into the workforce and supporting herself. As a result, she said that she registered with the Commonwealth Employment Service to seek employment and her employment with Tax Force was as a result of her so registering. Her work with Tax Force involved full-time work during the tax season, but was otherwise part-time work.
In the financial year 1994-1995 (being the full financial year prior to the death of her husband), the plaintiff had gross earnings of $14,060 from the tax business, Tax Force. She received a few hundred dollars for doing work at the Tailem Bend Community Centre. Her taxable income for that year was $14,981 and her earnings after tax for that financial year were approximately $13,000, which is an average net weekly income of $250.
So far as the earnings of her husband, the deceased, were concerned, certain tax documentation for the financial years 1992-1993 to 1995-1996 was tendered. In the financial year 1992-1993 the deceased’s taxable income was $23,846, which comprised income from his part-time lecturing at TAFE and from his work with Community Lifestyles Incorporated. His net income for that financial year was approximately $19,500, which is an average net weekly income of about $375. In the financial year 1993-1994 the deceased’s taxable income was $27,402, which comprised income from TAFE, Community Lifestyles Incorporated, and some income paid by the Department of Correctional Services. His net income for that financial year was approximately $21,500, which is an average net weekly income of approximately $415. In the financial year 1994-1995 the deceased’s taxable income was $25,666, which comprised income from TAFE, the Community Lifestyles Incorporated, and the Department of Correctional Services. His net income for that financial year was approximately $20,500, which is an average net weekly income of approximately $395. Looking at the three full financial years prior to his death, the deceased had an approximate average net weekly income of $400.
The deceased continued to work with TAFE up to the day of his death, and he continued to earn money from the Department of Correctional Services. It appears that his earnings in the seven and a half weeks he worked in the financial year 1995-1996 were maintained relative to the periods that preceded that period.
Before the plaintiff commenced working she and the deceased operated a joint account with the Australian Central Credit Union. The deceased’s earnings from both TAFE and Community Lifestyles Incorporated were paid directly into that joint account. When the plaintiff started working she opened an account with the Commonwealth Bank at Murray Bridge, and her earnings were paid into that account. She said that the family regarded these two accounts to be the joint resources of the family from which all living and other expenses were to be paid. The plaintiff managed the financial affairs of the couple throughout their marriage, and she paid the bills from these two bank accounts. Some she paid by cheque (for example, when there were sufficient funds to cover a cheque), some by credit cards and some by cash. When necessary, she drew cash from either of the two accounts to pay the day to day expenses of the family. She generally shopped at the Woolworths store in Murray Bridge on Friday evening where she purchased food for the couple. The two accounts were used to pay the mortgage on the house, the services to the house (including electricity, gas and telephone), furniture and other effects in the house, fuel for the various motor vehicles used by the couple, parts to maintain the vehicles, the purchase of the vehicles which the deceased was intending to restore, and the couple’s clothing and other needs. The plaintiff said that her husband would normally carry cash which he would use sometimes to buy his lunch at TAFE, to buy some drinks at the Tailem Bend Hotel on Friday evenings, and to buy petrol, mainly for his motorcycle which he used to get to and from work in Murray Bridge. The plaintiff said that the net income of she and her husband was fully expended by the purchases and payments just referred to. The plaintiff said that the couple had no savings and had no holidays.
She said that she and her husband’s marriage was very strong. They were happy together and there were no problems in the marriage. She said her husband enjoyed his work and generally enjoyed good health.
The plaintiff had commenced on the IVF program so that the couple might have a child or children. That program was unsuccessful for her and after a while she ceased her involvement in it. She said that her husband died without a will and the only assets at his death were the house and property at Tailem Bend and its contents.
The plaintiff said that she and her husband had discussed the future and because of their financial circumstances they could not see the deceased retiring any earlier than the retirement age of 65. She thought it might be possible that he might work on after age 65 if he was allowed to.
In her evidence the plaintiff estimated the amounts of money that the deceased was spending on himself at the time leading up to and at his death. She estimated that he was at that time spending $15 to $20 per week on petrol when using his motorcycle in travelling to and from work between Tailem Bend and Murray Bridge. She estimated that as at the date of his death she was spending between $65 and $70 per week for food and “other accessories” to look after herself and her husband. She said that they shared equally in these purchases. Accordingly, the deceased’s share was somewhere between $32.50 and $35. The plaintiff estimated that she spent between $400, maybe $500, a year on clothes for the deceased. She described the quite basic requirements of her husband for clothing. She estimated that he would, on average, spend about $10 a week at the hotel on Friday nights for his own entertainment (including drinks). This estimated spending gives a range of between about $65 and $75 per week which was being spent by or on behalf of the deceased for his sole needs. The defendant submitted that there was evidence given by the plaintiff which would justify a finding that the plaintiff’s evidence was that half of the whole expenditure on behalf of the family was to the benefit of the deceased solely. In my view, the evidence of the plaintiff was quite to the contrary. Her evidence was to the effect just outlined, being that something between $65 and $75 per week was spent for the sole benefit of the deceased, and the remaining expenditure was either for her own benefit (for example, an increased expenditure for her clothing required for work when she started work), or to cover expenditures which were for the joint benefit of the plaintiff and the deceased. These included mortgage payments on the house at Tailem Bend, payments for the various services, expenditure on furniture and other household effects, purchase of vehicles and parts and various other items.
It was also submitted on behalf of the defendant that I should find that the plaintiff’s estimation of the expenditure for the sole benefit of the deceased must have been an underestimation by her. Certain particular matters were explored with the plaintiff in cross-examination. An example was expenditure on petrol. She said however, there was often a company car involved in the deceased’s work for the Community Lifestyles Incorporated, and his visits to Mobilong Prison were made when he was either going to or returning from work in Murray Bridge.
The plaintiff made a very favourable impression on me. I have no doubt that she was not only telling me the truth in her evidence, but that her evidence regarding her husband’s spending habits is a reliable basis upon which I can make findings as to those matters. She conducted the family’s finances from an early age, and she had the sole responsibility for those finances, in particular the payment of bills and other expenditure. Her training in accounting matters in the years prior to her husband’s death, coupled with my observations of her during her evidence, satisfy me that her evidence is a reliable basis for my findings. There are perhaps two areas which might have caused her to underestimate her husband’s expenditure for his sole benefit. Her husband’s weekly donation to his church of $7 per week should probably be included in expenditure for his benefit alone, although that would not be something one would normally think of in giving evidence in a matter such as this. The plaintiff proffered the detail of this evidence when giving evidence. The other matter might be expenditure that the deceased made sometimes for his lunches at work. These expenditures probably were not included in her estimations of the weekly expenditure for food and other accessories.
If I were to take those matters into account then the amount spent weekly on the deceased for his sole benefit might be something closer to $85. I so find.
As already indicated, the average net earnings of the deceased in the three full financial years prior to his death was approximately $400 per week. In the period between 1 July 1995 and 24 August 1995 (when the deceased died), he continued to be a part-time (or hourly paid) instructor at the Murray Bridge campus of the Onkaparinga TAFE. The Regional Education Manager for that campus gave evidence that the deceased, had he survived, would have continued to teach the automotive program and the adult literacy program that he had taught before he had died. The latter program was the deceased’s predominant teaching area. Mr Haig said that the likely scenario for the deceased, at least to the end of 1997, would have involved 15 hours of teaching per week for 40 teaching weeks of the year, at $39.95 per hour. He would also have taught 40 hours per annum in the automotive program at $31.20 per hour. The above hours would have provided an income to the deceased of $25,218 gross. That sum is to be compared with $16,572 gross that the deceased earned at TAFE in the financial year 1994-1995. However, Mr Haig gave evidence that for the academic years 1998 and 1999, the deceased’s hours would probably have been less than in the previous two academic years. He said that instead of 15 hours per week for teaching the adult literacy program, the deceased might only have been able to do 9 hours per week. This might have occurred as a result of budget cuts suffered by the Murray Bridge campus. He said that in 1998 and 1999 the deceased would have had the same automotive program as in the previous two years, that is 40 hours per annum at $31.20 per hour. The difference in the 1998 and 1999 years would have been six hours per week in teaching the adult literacy program.
The Administrative Officer of the Community Lifestyles Incorporated gave evidence. She explained why the deceased’s hours with that organisation had ceased from the end of December 1994. She explained that the organisation was restructuring itself and that had been completed by about the end of 1995. She said that the organisation’s funding had been increased by the end of 1995 from $200,000 annually to $800,000 annually. She said that that level of funding would not diminish in the future and she hoped that it might increase further.
Mrs Woodland said in evidence that she had spoken to the deceased on the day that he died. She knew at that time that the deceased had apparently preferred to work for a number of organisations in a variety of different fields. The purpose of her call to the deceased on the day of his death was to tell him that a new permanent full-time position with Community Lifestyles Incorporated was available to him if he wished to have permanent full-time employment rather than a variety of different part-time jobs. She said that the salary for the Team Leader position about which she was speaking to the deceased was approximately $26,000 to $26,500. My impression from her evidence was that she was not expecting the deceased to advise her then as to whether he was interested in the Team Leader position, nor did he. Mrs Woodland went on to say in her evidence that had the deceased not died, and had he not wished to take up the Team Leader position, then he could have had as many hours as he wished working part-time for Community Lifestyles Incorporated. Mrs Woodland added that in September 1995 six new staff members were employed pursuant to their restructuring, and those staff members did work which was similar to that which had previously been done by the deceased prior to December 1994.

Both Mr Haig and Mrs Woodland spoke in glowing terms of the deceased, not only of his personal character, but of his special abilities and capabilities in the work that he had done for the Murray Bridge TAFE and the Community Lifestyles Incorporated. Mr Haig spoke of the deceased of being a “highly respected lecturer who had a great sense of being able to teach predominantly very difficult students” who had “particular educational disadvantages”. His death was a great loss to the campus and to his colleagues and students at the campus. Mrs Woodland said the deceased was very much liked and respected by her staff and the consumers supported by the organisation, many of whom would particularly seek the deceased’s support. She described the majority of these consumers as having an intellectual disability or being intellectually disadvantaged. She said that whilst work was slow at Community Lifestyles Incorporated during the restructuring phase in early 1995 the deceased took some time off from her organisation to fulfil other contracts. I inferred from her evidence that he volunteered to take time off working for Community Lifestyles Incorporated to allow other persons who were employed by that organisation to maintain their work for and remuneration from that organisation. Mrs Woodland stated that a place of the employment at her organisation for the deceased was guaranteed.
As indicated by the deceased’s taxation returns, he maintained a relatively constant income in the three full financial years before his death, notwithstanding that, within those three years, the amounts he earned from different organisations varied. The impression I gained of the deceased from all the evidence was that he was content with his life and lifestyle at Tailem Bend, and that he did not aspire to achieve more than his then current income. It probably was the case that the deceased was under-utilising his earning capacity. But my impression was that he was fulfilled in earning what he was earning whilst helping those with disabilities, and doing volunteer work for those less fortunate than himself.
I find that, had he lived, the deceased would have worked until trial and into the indefinite future, much as he had done in the years before his death. I find that had his hours at TAFE been reduced by the economic circumstances of TAFE, the deceased would have worked with the Community Lifestyles Incorporated and the Department of Correctional Services for such periods as were necessary to ensure that he and his wife at least enjoyed the same net income from his labours as had been the case prior to his death. I find that those circumstances would have continued, largely unaltered, until he retired at age 65. I find that at that time he would have retired (the family had made provision for superannuation) although I have no doubt the deceased would have continued his voluntary work beyond retirement.
The marriage of the plaintiff and the deceased was a strong one, they had apparently come to terms with the fact that they could not have children, they had set up a permanent home in Tailem Bend, and there is no reason to think that the marriage would not have endured. The deceased apparently was in good health.
At the time of trial the plaintiff was in a de facto relationship with Mr O’Connor. Mr O’Connor was living at the plaintiff’s home in Tailem Bend. The evidence is not clear as to when Mr O’Connor first moved into the plaintiff’s home. It was probably nine or ten months after the plaintiff met him which occurred after her husband’s death. At the time that the plaintiff met Mr O’Connor he was working on and off as a builder’s labourer in Murray Bridge. He did that work on or off for six months. In that period he only worked on average about half of each week. He then went onto unemployment benefits. His ceasing work as a builder’s labourer coincided with him suffering a nervous breakdown. He has been, and is currently, on anti-depressant medication and he suffered a relapse of his major depression since commencing to live with the plaintiff. For a considerable period after such relapse he did no work. He has recently worked at Metro Meats in Murray Bridge. That work was as a labourer on the slaughter floor between September 1998 and 19 March 1999 when Metro terminated its entire workforce at their Murray Bridge plant. He has not worked since. Whilst he has been living with the plaintiff Mr O’Connor has been paying first $50, and later $70, a week as a contribution for the food consumed by him and his two teenage children who visit every second weekend. He has also contributed to the payment of electricity, gas and telephone accounts. He is currently making these contributions from his savings.
Both the plaintiff and Mr O’Connor spoke of their relationship as being very shaky, although in recent weeks there has been a slight improvement. The plaintiff said that there was no prospect of marriage between her and Mr O’Connor. At least, that prospect was very unlikely. Mr O’Connor said he was definitely not ready for a permanent relationship in marriage.
Evidence of Mr O’Connor’s earnings was tendered. For the 1996-1997 financial year it appears he had a total income from his own labours of $3,487; in the 1997-1998 financial year he had no earnings; and in the 1998-1999 financial year he received net earnings of about $10,000.
In view of some submissions made on behalf of the defendant to which I shall return later, I refer in some detail to the evidence of the plaintiff’s earnings. As indicated above the plaintiff averaged about $250 net per week in the 1994-1995 financial year, which was the last full financial year prior to her husband’s death. This sum was from a taxable income of $14,981. She gave evidence which was to the effect that when the income represented by this sum came into the family, it was expended either for the joint benefit of the plaintiff and the deceased or for her sole benefit. She gave the example of clothing that she considered that she needed to have for the purposes of her work. Furthermore, the estimates of expenditure given by the plaintiff for the sole needs of her husband were estimates given at the time when the plaintiff herself was earning income which averaged about $250 net per week.
In the 1995-1996 financial year the plaintiff had a taxable income of $14,806, which was almost identical to the previous year. In the 1996-1997 financial year she had a taxable income of $19,525, and in the 1997-1998 financial year she had a taxable income of $27,638. Over the last two financial years her taxable income increased gradually. The defendant submitted that I should take account of the earnings of the plaintiff subsequent to the death of her husband. The plaintiff’s evidence was that she had trained herself in accounting, and had sought employment following that training, in order to equip herself better to join the workforce should something happen to her husband. I accept her evidence that that was her purpose in both training and in initially seeking employment. I accept her evidence that it went no further than that in the minds of herself and her husband at the time of her husband’s death in August 1995. But I think that there was some prospect that the plaintiff would have wished, and her husband would have accepted her wish, to continue her part-time work, at least for some time, had her husband not been killed. The couple had been unable to have children, and the options open to the plaintiff to continue to fill her days at Tailem Bend whilst not working were probably limited. Perhaps the plaintiff would not have worked indefinitely, and would not have worked consistently, had her husband not died. But I find that, had her husband not died, she would have been unlikely to have done more hours, and consequently have earned more, in the period subsequent to his death than she was earning in the 14 or so months leading up to his death. I find that the additional earnings she has achieved in the two full financial years before trial were necessitated by the death of her husband and the ongoing need to support herself and partly to support Mr O’Connor.
What I am required to do in this action is to give such damages to the plaintiff as I think proportioned to the injury resulting from the death of her husband. The measure of such damages is primarily “the loss, by reason of the deceased’s death, of the financial support reasonably expected to be given by the deceased had he continued to live” - Ruby v Marsh (1975) 49 ALJR 320. In Burley v Trewartha (1976) 13 SASR 514, Jacobs J. said at page 515:
“The calculation of the plaintiff’s damages ‘for the loss of a reasonable expectation of pecuniary benefits consequent upon the death’ (per Pape J. in East v Breen) involves, among other facts and circumstances to be weighed, ‘an estimation of what the deceased might have contributed for that future during which it is decided he would have continued to contribute financially to or for the dependants’ (Ruby v Marsh at p. 323), and the prospect of the plaintiff’s future earnings would not appear to be relevant, as such, although there may be cases, (and this is not such a case), where the prospect of such earnings may help to support the finding that the deceased’s own contributions, for one reason or another, might have tended to diminish.”
What I have to do is ask what would have been the pecuniary advantages that the plaintiff would have enjoyed from the deceased had he not died when he did. That dependency may be calculated by taking the probable earnings of the deceased after tax and deducting therefrom what would have been spent on the deceased for such things as his food, clothing, and entertainment. I then have to value the chance that the plaintiff would have continued to derive some, and, if so, what, financial benefit from her deceased husband. What the deceased was earning at the date of his death is the starting point for the calculation of the plaintiff’s pre-trial damages, and what the deceased would have been earning at the date of trial is the starting point for a calculation as to the plaintiff’s future damages.
I find that the earnings of the deceased were $400 after tax at the date of his death. I find that the deceased spent $85 per week for such things as food, clothing and entertainment. The benefit to the plaintiff from the deceased’s earnings as at the date of death was, accordingly, $315. There have been 197 weeks between the death of the deceased and trial. $315 x 197 weeks is $62,055.
I find that the plaintiff’s chance of benefiting from the deceased’s probable earnings of $400 net per week to the extent of $315 per week until trial, had not the deceased been killed, was high, almost certain. The deceased’s work history and the evidence of the high regard in which the plaintiff was held by those employing him, lead me to find that the deceased would have continued in the same, or very similar, way as he had in the years prior to his death in the period between August 1995 and trial. I consider it unlikely that the plaintiff would have increased her earnings between August 1995 and trial, had her husband not died. If anything, it was more likely that her earnings would have decreased. The plaintiff has not remarried in the time between the accident and trial and has received no financial assistance of a type which would warrant any significant reduction of the sum of $62,055.
I would allow $62,000 for the plaintiff’s pre-trial damages.
The defendant submitted that I should take account of the actual earnings of the plaintiff subsequent to her husband’s death in assessing her damages. Not only is that contrary to authority (see Carroll v Purcell (1961) 107 CLR 73 and Burley v Trewartha, infra) but the facts do not justify a finding that her earnings before or since the accident were or are such to support a finding that the deceased’s contribution for the plaintiff’s own benefit or for her joint benefit with the deceased might have tended to diminish after August 1995. The evidence supports a finding that, had not the deceased died, the plaintiff and her husband would have continued to organise their lives together in much the same way they did in the years prior to the deceased’s death. And in any event, the loss by the plaintiff of the support provided to her by her husband is not lessened by the fact that the plaintiff had in the past or at some time in the future might have chosen to contribute to the family fortunes by her own earnings (see Burley v Trewartha, infra, at page 515).
For the plaintiff’s future damages I proceed from a finding that, as at trial, the plaintiff had a reasonable expectation of a benefit of $315 per week from her husband’s earnings had he lived. The lump sum equivalent of payments of $1 per week during joint lifetimes of the plaintiff and the deceased, assuming the deceased was still alive, is, for payments ceasing upon the attainment of age 65 by the deceased, $631. $315 by $631 is $198,765. Is there any reason to adjust this figure up or down to take account of favourable or unfavourable contingencies that might effect the chance the plaintiff would have continued to derive a benefit of $315 from the deceased until his retirement?
I do not think that the plaintiff’s prospect of remarriage, such that it might effect her future expectations significantly, is high. She is currently in a relationship where remarriage is thought to be unlikely, and, in any event, it is a relationship which is highly unlikely to lead to a favourable financial outcome for the plaintiff.
In my view, the likelihood that the deceased would have suffered a loss of earnings between now and his retirement at age 65 is largely off-set by the potential, if not the likelihood, that he could have increased his earnings and increased his financial support for his wife. I think that the chances that the deceased would have drawn on the family’s income for his sole benefit to a greater extent than he demonstrated whilst alive, were slight. I think that the likely scenario to the time of his retirement would have been much as it was before his death in all respects. I do, however, make some allowance for the small possibility that his needs might have increased over time; the slight possibility of the failure of the marriage of the plaintiff and the deceased; the slight possibility of the plaintiff remarrying such as to relevantly effect her future damages; and the possibility of the death of the plaintiff or the deceased before he would have retired. I allow $175,000 for the plaintiff’s damages post-trial.
For solatium I award the maximum of $4,200. I see no reason to do otherwise.
I make a modest allowance of $750 for the value to the plaintiff of the lost services of the deceased for limited home maintenance and for the services of and maintenance to motor vehicles. These have, to some extent, been replaced by the deceased’s father and Mr O’Connor.
I award a lump sum for interest in the sum of $300 on the award for solatium, and I award interest on past damages in the sum of $7,500.
Funeral and other expenses have been paid by the defendant. No award is sought for these.
I would give judgment for the plaintiff in the sum of $249,750.

[1999] SADC 82

8 July 1999