Tilbee v Wakefield as Adminstratrix of the estate of the late Kenneth Eric Wakefield on behalf of NATRIECE Leanne Wakefield, Sheldon Kenneth Wakefield, Ashleigh NATRIECE Wakefield and Dannika Leanne Wakefield
[2000] WASCA 143
•25 MAY 2000
TILBEE -v- WAKEFIELD as Adminstratrix of the estate of the late KENNETH ERIC WAKEFIELD on behalf of NATRIECE LEANNE WAKEFIELD, SHELDON KENNETH WAKEFIELD, ASHLEIGH NATRIECE WAKEFIELD and DANNIKA LEANNE WAKEFIELD [2000] WASCA 143
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 143 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:139/1999 | 16 MARCH 2000 | |
| Coram: | PIDGEON J WALLWORK J MILLER J | 25/05/00 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| PDF Version |
| Parties: | LARRY TILBEE NATRIECE LEANNE WAKEFIELD as Adminstratrix of the estate of the late KENNETH ERIC WAKEFIELD on behalf of NATRIECE LEANNE WAKEFIELD, SHELDON KENNETH WAKEFIELD, ASHLEIGH NATRIECE WAKEFIELD and DANNIKA LEANNE WAKEFIELD |
Catchwords: | Negligence Contributory negligence Vehicles and traffic Motor vehicle accident Vehicle driven by a driver with a blood alcohol content of .123 per cent left road Inferences open Earlier incidents of bad driving Knowledge of passenger Whether passenger guilty of contributory negligence Apportionment Evidence Inferences open as to impairment of the competence of a driver with a prescribed blood alcohol content Extent of judicial notice of prohibited levels of blood alcohol Negligence Fatal accident Widow Possible remarriage Effect on dependants |
Legislation: | Fatal Accidents Act (1959) |
Case References: | Carroll v Purcell (1961) 107 CLR 73 Howard v Hamilton (1996) 16 WAR 292 Pennington v Norris (1956) 96 CLR 10 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Public Trustee v Zoanetti (1945) 70 CLR 266 Wild v Eves (1970) 92 WN (NSW) 347 Williamson v John I Thornycroft & Co Ltd [1942] KB 658 Willis v The Commonwealth (1946) 73 CLR 105 Banovic v Perkovic (1982) 30 SASR 34 Black v MVIT [1986] WAR 32 Bowen v Tutte (1990) Aust Torts Reports 68,079 Cook v Cook (1986) 162 CLR 376 Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 Gala v Preston (1991) 172 CLR 243 Jeffries v Fisher [1985] WAR 250 Knight v Anderson, unreported; FCt SCt of WA; Library No 970195; 1 May 1997 McKenna v Avior Pty Ltd [1981] WAR 255 Motor Vehicle Insurance Trust v Wilson [1976] WAR 175 Nguyen v Nguyen (1990) 91 ALR 161 Ruby v Marsh (1975) 132 CLR 642 SGIC v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997 The Insurance Commissioner v Joyce (1948) 77 CLR 39 Williams v Commissioner for Road Transport and Tramways (1933) 50 CLR 258 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : TILBEE -v- WAKEFIELD as Adminstratrix of the estate of the late KENNETH ERIC WAKEFIELD on behalf of NATRIECE LEANNE WAKEFIELD, SHELDON KENNETH WAKEFIELD, ASHLEIGH NATRIECE WAKEFIELD and DANNIKA LEANNE WAKEFIELD [2000] WASCA 143 CORAM : PIDGEON J
- WALLWORK J
MILLER J
- Appellant (Defendant)
AND
NATRIECE LEANNE WAKEFIELD as Adminstratrix of the estate of the late KENNETH ERIC WAKEFIELD on behalf of NATRIECE LEANNE WAKEFIELD, SHELDON KENNETH WAKEFIELD, ASHLEIGH NATRIECE WAKEFIELD and DANNIKA LEANNE WAKEFIELD
Respondent (Plaintiff)
Catchwords:
Negligence - Contributory negligence - Vehicles and traffic - Motor vehicle accident - Vehicle driven by a driver with a blood alcohol content of .123 per
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cent left road - Inferences open - Earlier incidents of bad driving - Knowledge of passenger - Whether passenger guilty of contributory negligence - Apportionment
Evidence - Inferences open as to impairment of the competence of a driver with a prescribed blood alcohol content - Extent of judicial notice of prohibited levels of blood alcohol
Negligence - Fatal accident - Widow - Possible remarriage - Effect on dependants
Legislation:
Fatal Accidents Act (1959)
Result:
Appeal allowed
Representation:
Counsel:
Appellant (Defendant) : Mr K N Allan
Respondent (Plaintiff) : Mr A S Stavrianou
Solicitors:
Appellant (Defendant) : K N Allan
Respondent (Plaintiff) : Wojtowicz Kelly
Case(s) referred to in judgment(s):
Carroll v Purcell (1961) 107 CLR 73
Howard v Hamilton (1996) 16 WAR 292
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Public Trustee v Zoanetti (1945) 70 CLR 266
Wild v Eves (1970) 92 WN (NSW) 347
Williamson v John I Thornycroft & Co Ltd [1942] KB 658
Willis v The Commonwealth (1946) 73 CLR 105
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Case(s) also cited:
Banovic v Perkovic (1982) 30 SASR 34
Black v MVIT [1986] WAR 32
Bowen v Tutte (1990) Aust Torts Reports 68,079
Cook v Cook (1986) 162 CLR 376
Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601
Gala v Preston (1991) 172 CLR 243
Jeffries v Fisher [1985] WAR 250
Knight v Anderson, unreported; FCt SCt of WA; Library No 970195; 1 May 1997
McKenna v Avior Pty Ltd [1981] WAR 255
Motor Vehicle Insurance Trust v Wilson [1976] WAR 175
Nguyen v Nguyen (1990) 91 ALR 161
Ruby v Marsh (1975) 132 CLR 642
SGIC v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997
The Insurance Commissioner v Joyce (1948) 77 CLR 39
Williams v Commissioner for Road Transport and Tramways (1933) 50 CLR 258
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1 PIDGEON J: The first question which arises in this appeal is whether a motor vehicle passenger, who lost his life in an accident, was guilty of contributory negligence by reason of his riding in a car driven by a driver he knew had consumed alcohol. The trial Judge, (His Honour Judge Viol) reached the view that the claim for contributory negligence failed on the question of causation as he was not satisfied that the alcohol the driver consumed was a factor which contributed to the accident. The main question on this aspect of the appeal is the inferences which were open in respect of causation.
Facts relating to the accident.
2 The action was brought by the administratrix of the estate of the deceased on behalf of herself and her three dependent children. The appellant, who was the defendant in the action, was at the time of the accident 33 years old and was the driver of the vehicle. He had arranged to meet the deceased and some friends on the afternoon of Friday 3 February 1995 after he had finished work. They were to meet at the Silver Sands Hotel Mandurah to celebrate the deceased's birthday. The appellant drove there in his Ford F100 utility with a passenger, Mr Paul Rimser, arriving at about 3.00 pm. The deceased arrived shortly afterwards and the three remained there for about an hour. They were joined by others. The appellant said he was drinking full strength beer and he thought that the deceased and others had the same number of drinks as he did. The appellant, Mr Paul Rimser and the deceased then went to the Brighton Hotel. The appellant said they did not stay there long and that he had only one drink there. From there the three went to the Boathouse Tavern, but on the way they stopped at a florist to order some flowers to be picked up later. The appellant thought they arrived at the Boathouse Tavern between 4.00 pm and 5.00 pm. The appellant said that he continued to drink full strength Emu Bitter at the Boathouse Tavern. At 6.00 pm they picked up the flowers before the florist shut, put them in the utility, and then went back into the Boathouse Tavern. They remained there for another hour. The appellant then drove Mr Rimser, and the deceased to the appellant's house in Greenfields, a suburb on the Pinjarra road three or four kilometres from Mandurah. There were two more passengers, the Haese brothers, in the tray of the utility. The appellant said he arrived at his home at about 7.00 pm. He said that during that afternoon he had probably drunk about eight cans of beer.
3 On the journey home Mr Rimser and the deceased were on the bench seat in the cab of the utility with Mr Rimser next to the window and the
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- deceased in the middle. The Haese brothers rode in the tray. No-one was wearing a seat belt. In order to reach his house, the appellant intended to make a left hand turn from Pinjarra Road at Rio Grande Avenue. This is some 3km from the Mandurah town centre. The appellant saw ahead of him, at a set of lights prior to the Rio Grande Avenue turnoff, a small van owned by a person he knew. The following was his evidence in respect of his behaviour relating to that van: (AB150)
"Did you do anything in relation to that - - -?---Anything back at the lights must have been rude because the van moved off slow and we went right up behind him, thinking it was Russell. Then went out around him, but it was his missus.
When you say you went right up behind him, you know, what were you doing? I mean, why did you do that?---Just to give him a bit of a razz, you know.
"After you took off when the lights turned green do you remember anything happening?---Yes. I looked up in the rear vision mirror and I saw this yellow ute behind me. It was very close and it backed off and came up very close again and back off and came close again.
When you say it came very close, how close?---It felt like it was almost going to touch the back of the car.
Right. And what did you do then?---I wasn't too worried because they were friends of my husband's and they were just having a bit of fun with him.
So where did the vehicle go?---It overtook me and headed towards Pinjarra."
5 The witness then saw the appellant's utility overtake another two cars before the next set of lights. These two cars were in different lanes and when the witness was asked how she saw the appellant pass the two cars she said, "He seemed to weave twice before the lights." A woman, driving a vehicle near the Rio Grande Avenue turnoff at about 7.30pm that night, gave the following evidence (AB170):
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- "Now, as you got into the 70 zone, do you remember any other vehicles?---Yes. I noticed this big yellow F100 right behind me.
When you say right behind you, what do you mean by that?---Well, close. It would have been a car's distance but it - I don't know where it came from and it was - all of a sudden it was there. It grabbed my attention.
What grabbed your attention about a car coming within a car length like it did?---Well, he was - he came up close and then pulled out to pass me and then pulled back in front of me and then turned - went over into the slip lane to turn left into Rio Grande.
Did he pass you?---Yes.
Yes. Okay. Now, how far back from Rio Grande did he pass you?---Approximately 100 metres. I'm not real good with distances but it seemed to be quite close. It no sooner got past me than he had to pull over into the slip lane.
And when he pulled over, how far in front of you was that?---Just a car's length.
Did that cause you to modify your driving?---Well, I didn't have to stand on my brakes but it certainly drew my attention to the fact. I just thought it was strange that he would pull out and pass me if he was going to turn left.
Okay, and you were travelling at 70 kilometres per hour at that stage?---That's correct.
And obviously was going faster to get past you?---That's correct."
6 The appellant arrived home, as I mentioned, at about 7pm and remained there for approximately half an hour. As far as he knew, his passengers did not get out of the vehicle. The appellant came out of the house and got into his vehicle with the passengers in the same position as before. He intended to drive eastwards along the Pinjarra Road in order to go to a hotel in Ravenswood or Pinjarra. He drove back along Rio Grande Avenue intending to turn into Pinjarra Road to travel in an easterly direction towards Ravenswood. He saw, walking along Rio Grande
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- Avenue, a girl one or more of them knew, Miss Huxley. The appellant picked her up and she too rode in the front of the utility on the bench seat, but the appellant could not describe how she was sitting. It meant, nevertheless, that there were four people in the front of the appellant's utility. Miss Huxley rode in the vehicle for about a kilometre and was dropped off in Pinjarra Road.
7 The appellant continued driving along the Pinjarra Road with the passengers in the same position in the vehicle. The vehicle entered a right hand bend on its approach to the Serpentine Bridge and this was when the accident happened. The appellant's evidence as to what happened is as follows: (AB154)
"As we come into the bend we were talking about this crabbing trip. I looked at Ken, looked back as we entered the gravel with the left hand side of the ute and there's this drop off. It starts out at nothing and goes to about 10, 12, 15 foot near the bridge, the drop off of the road, the edge.
Yes?---I followed the bend around instead of just pulling the steering wheel out, collected a white post. As I came out I hit - I didn't know at that stage, there's a hole, a washout.
Yes. Just go slowly so his Honour can - yes?---A washout - where the water actually comes off the bridge and goes down this embankment it has worn the side of the road away. Hit that, the ute sort of bounced. I hit the brakes, skidded across sideways and that was the end of that. Hit the bridge."
8 He said that when the left hand wheels went in to the "drop away" he lost control of the vehicle. The vehicle, after it left the bitumen, hit the wash-away, became out of control and hit a fence leading to the bridge. He was injured and taken to hospital and the four passengers were killed.
9 Miss Huxley gave evidence which was summarised by his Honour when he said that she accepted a lift in the vehicle and travelled in it for approximately a kilometre. She thought that the appellant's driving was "perfectly fine". In cross-examination she thought the speed was the same as the other vehicles on the road. She said the passengers were in high spirits.
10 The blood alcohol level of the appellant calculated as at the time of the accident was .123 per cent and the blood and alcohol level of the deceased was .125 per cent at the time of the accident.
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11 His Honour said that it was clear in his view that the manner of driving the vehicle by the appellant caused the accident, and in turn, the death of the deceased. Facts giving rise to negligence had been admitted on the pleadings. His Honour dealt with a number of matters raised in the defence. One of these related to the failure to wear a seat belt. His Honour said there was no evidence upon which he could find that the wearing of the seat belt would have prevented the injuries sustained by the deceased. His Honour also rejected two further defences, namely volenti non fit injuria, and a defence based on the duty of care owed by an intoxicated driver, to a person who knew of the intoxication. There is no appeal against these findings of his Honour. The appeal relates to his Honour's finding on contributory negligence.
12 I shall set out his Honour's findings on the question of contributory negligence and they include findings on the other matters raised as these have a bearing on contributory negligence. His Honour said there was no evidence led by the defendant as to how specifically the deceased was injured. His Honour later said: (AB30)
"Although the defendant may have been showing off as he drove, and may have driven in an unsafe manner before the accident and was involved in an accident as a result of his negligent driving, that behaviour and his driving does not in my view necessarily lead to an inference that the driving was caused by his ingestion of alcohol to the degree required.
The evidence of Dr Karin Margolis also does not in my view, avail the defendant. Dr Margolis' evidence spoke of a number of factors to be taken into account and the variety of reactions to the ingestion of alcohol by various drivers. The blood alcohol level of the deceased does not, therefore, of itself assist the defendant.
On the evidence there are insufficient facts upon which I could be satisfied that the defendant was under the influence of alcohol to such an extent as to be incapable of driving, having proper control of his vehicle.
Further, there is a paucity of evidence as to the deceased's knowledge of the defendant's condition and an insufficient basis of fact upon which such knowledge could be inferred.
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- I find therefore that the defendant has failed to make out the defences of lack of duty and volenti non fit injuria.
Further, I am not satisfied that the plea of contributory negligence has been made out. There is little or no evidence upon which one could find, on the balance of probabilities, that the decision of the deceased to travel as a passenger in the vehicle driven by the defendant, contributed to the death of the deceased. Although, as I have found, there may have been some 'showing off' by the defendant as he drove towards the accident scene, together with some unsafe driving, it is only when the defendant was on the double carriageway that this method of driving was such that the vehicle was placed at risk. The evidence established that he was looking towards the deceased, ie, not paying attention and possibly driving faster than the speed limit, when he moved off and into the gravel on the edge. From that point the vehicle became out of control, particularly when it moved into the wash-out, and thereafter the application of brakes by the defendant and his general failure to control the vehicle properly, led to the vehicle sliding across the bitumen road and colliding with the bridge structure.
In all the circumstances the plea of contributory negligence in paragraph 5 of the defence is not made out."
13 His Honour did not get to the stage of asking the question whether the deceased acted in disregard to his own safety by travelling in a vehicle where the driver had been drinking. The reason was because his Honour considered that causation had not been proved by reason of the fact that it had not been established that the intoxication contributed to the accident.
14 It is submitted by the respondent, and it is implicit that it was his Honour's view, that the inference cannot be drawn for the following reasons. The two prime facts are that the appellant had a blood alcohol content of .123 per cent and the vehicle moved off a main road. It is submitted that it cannot be inferred that intoxication was a cause for the driver to have permitted this to happen as there is a competing inference that it may have occurred through ordinary inattention, particularly as those in the front were talking at the time and the driver's attention was being diverted. It is submitted that it cannot be said that the first inference is the more probable.
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15 Photos of the road and the bend are in evidence. It is a main road constructed to high specifications. There is a continuous white line at each edge of the road and a broken line in the middle. The white line at each edge is some little distance from the gravel. The bend is a comparatively broad one. It is not likely for a vehicle by reason of momentary inattention to cross the white line and move into the gravel. It is a sufficiently well known fact that a blood alcohol level impairs a driver's ability to control a vehicle and even if no evidence to that effect were called, courts can have regard to the legislation passed by Parliament and the general knowledge in this area. A blood alcohol level in excess of .05 per cent is proscribed because it is known that such a level impairs the ability to drive. In the present case the appellant's blood alcohol level was approaching the level where there is a presumption that a person is incapable of driving. There was evidence of demonstrably bad driving after the vehicle left Mandurah and not long before the accident. It was the type of driving consistent with an absence of inhibition caused by alcohol. There was in addition the evidence of the forensic pathologist, Dr Margolis, which was summed up by his Honour as follows: (AB16)
"She prepared a report dated 25 July 1996, Exhibit 7. She was not able to be specific about the effect of alcohol on the defendant, however, she felt it was most likely that he would have been affected to at least some degree by alcohol. She said, 'At this level of alcohol, most people, particularly those who are not regular users of alcohol, would not be able to safely drive a motor vehicle'. She felt that the effect of alcohol on the defendant may have manifested itself in him being less inhibited and perhaps more boisterous."
16 Dr Margolis could do no more than speak generally on the effects of alcohol on an individual. It was a matter for his Honour to find what the appellant actually did and then to examine that in the light of the expected consequences of the effect of alcohol as testified to by Dr Margolis.
17 I consider that the evidence relating to the appellant's behaviour, prior to turning into Rio Grande Avenue, shows that there was the manifestation in the appellant which the doctor thought might be possible as result of his blood alcohol content. There is further evidence as to the demeanour of the group as a whole. The woman who sold the flowers said that five men came into the shop and she said they were "loud, noisy and boisterous". At 6.00 pm two of them came back to pick up the flowers and she did not feel they were any different from the first time she saw them. The barmaid at the Boathouse Tavern described them as "a
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- group of very annoying men". I consider that, on all the evidence, it is compelling that the more probable inference is that the reason why the vehicle left the bitumen was that the alcohol which the defendant had consumed impaired his ability to control it. Inattention by a sober person caused by talking is not likely to be so grave as to cause a vehicle to leave a road of the type on which the vehicle was travelling.
18 The respondent submits that the evidence shows that the appellant was in control of the vehicle after it left the road and up until the time it hit the wash away. I do not consider that this assists the respondent. The act of negligence was allowing the vehicle to leave the bitumen. Once it left the bitumen all types of hazards could be expected.
19 The next question is contributory negligence, a question on which the appellant carries the onus of proof. His Honour said in respect of the appellant's consumption of alcohol(AB29):
"I have referred to the various witnesses as to the defendant's ingestion of alcohol and its effect upon him. The most one could conclude from the evidence of Kim Tomlinson, Christine Walsh and Fiona Huxley, is that the defendant, and/or the deceased, were boisterous and possibly rude, in the hours leading up to the accident. There was no evidence as to their manner of speech, gait, or general physical appearance; there was little or no evidence of the normal 'indicia' of a person being affected by alcohol."
20 The question must be asked whether the deceased acted in disregard of his own safety in continuing to drink alcohol and to ride in the vehicle when he knew that the driver was drinking alcohol and was continuing to do so. I consider that the inference which must be drawn from the evidence before his Honour and on the facts found by him is that the deceased did fail to take care of his own safety. The group were drinking together and had the appearance to outsiders of a boisterous group. The deceased must have been aware of the extent of the drinking and had the appellant under observation. The deceased must have observed the improper manoeuvre on the approach to the van at the lights and the way the other two cars were passed after those lights. When the deceased reached the appellant's home he made the decision to continue to ride with the appellant on a comparatively long journey on a country road. As Murray J said in Howard v Hamilton (1996) 16 WAR 292(at 312) the deceased ought reasonably have anticipated the likelihood of a casual act of negligence by reason of the intoxication of the deceased and the way he
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- had been driving. The only conclusion open is that the deceased did act in disregard of his safety. The impaired ability of the driver, of which the deceased should have been aware, was the cause of the accident.
21 This again in this case is a matter of inference on the facts before the trial Judge. The principles to apply are to be found in Pennington v Norris (1956) 96 CLR 10 at 16 and were considered again in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492. What is involved is a comparison of culpability. I would see the culpability of the appellant as being greater. He put a number of persons in danger. It was a case of the deceased seeing the appellant as a competent driver, but the deceased ought to have known that his ability was significantly diminished, particularly when they left the appellant's home. In these circumstances I would apportion liability so as to reduce the deceased's damages by one third. I would see this apportionment as being consistent with an apportionment made by this Court in Howard v Hamilton where the incompetence of a driver was at a much higher level and where the apportionment was 50 per cent.
Damages
22 The question which was argued on appeal in respect of damages was, when calculating a figure on which to base the assessment for damages, what is the proper figure which should be used to allow for contingencies by reason of the fact that the widow has subsequently formed a relationship that may lead to marriage.
23 The deceased was a plasterer conducting business on his own account. His Honour concluded that his net annual income was $35,000 and this is not now challenged. His Honour then made the observation that there was little evidence available that would be of any use to him as to the extent of the dependency of his wife and the children, and it is not an issue that his Honour was justified in making this remark. His Honour referred to a table appearing in Luntz "Assessment of Damages", 3rd ed at 356 and headed "Table 9.1". His Honour said:
"In the circumstances, I am prepared to accept, as suggested by counsel for the defendant, a figure of 80.5 per cent being an average of the living cost of the family of two adults and three children."
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24 However, counsel for the appellant made the point that at the trial he did no more than say in effect that as there was no evidence "all you can do is perhaps use Luntz as a rule of thumb", but he did not abandon the argument that this aspect of damages failed for lack of proof. It was submitted on appeal that this would be the proper conclusion. The prolix grounds of appeal embrace this proposition.
25 The evidence showed that the wife and children were dependent on the deceased, but was not precise as to the extent of the dependency. I consider the tables in Luntz adopted by his Honour would have shown the very minimum figure in respect of dependency and that is the appropriate figure to use. The main question on appeal is the appropriate reduction by reason of the prospect of the widow being no longer dependant.
26 This has arisen by reason of it being claimed that the widow is no longer dependant as she is now living with Mr Thumbwood and there is a prospect that they will marry. His Honour, under the heading of "Assessment of Damages", said he would deal firstly with the issue of the relationship between the widow and Mr Thumbwood and "whether or not the latter has, since the death of the deceased, contributed towards the maintenance and upkeep of the plaintiff and/or the children and whether or not in the future such contribution may continue." I consider, for reasons to which I shall later refer, that this was the proper way to ask the question. His Honour said that he did not accept the widow's evidence as to the relationship between her and Mr Thumbwood and that he was not satisfied with the reliability of the evidence of Mr Thumbwood. His Honour then, for reasons he stated, found that the widow and Mr Thumbwood had been living together on a de facto basis since November 1997 and that such a relationship would continue in the indefinite future. His Honour said there was a clear possibility that the plaintiff will marry at some time in the future, most probably to Mr Thumbwood. His Honour said in respect of Mr Thumbwood's contribution: (AB33):
"The financial arrangements clearly indicate that Mr Thumbwood contributed to the expenses and upkeep of the plaintiff and the children. Such contribution is difficult to quantify. It seems, on the evidence, that Mr Thumbwood paid off for some time approximately $500 more a fortnight than the plaintiff from the loan of the house, and that some 'joint' general bills 'to the extent of $700' were paid in the early stage by Mr Thumbwood."
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27 His Honour dealt with the matter by making an allowance for contingencies against the widow's share. He said: (AB36)
"I now turn to the question of contingencies. It is clear that these should only operate, if at all, from November 1997 when, I have found, that Mr Thumbwood and the plaintiff began a relationship which involved the assumption of some portion of caring for the family in a financial way by Mr Thumbwood.
Of course, the plaintiff has denied that any contribution was made by her, as was the case with Mr Thumbwood and therefore there is no evidence of any contribution by the plaintiff or Mr Thumbwood as to dependency.
The defendant submitted that contingency figure of 25 per cent should be used as a starting point on the basis of the decision of Knight v Anderson, FCt SCt of WA; Library No 970195; 1 May 1997; after which an additional deduction should be made, taking into account any de facto relationship from November 1997 and support for the family by Mr Thumbwood.
On the other hand the plaintiff has submitted that a figure of 2.2 to 6 per cent may be appropriate, relying on the decision of Malcolm CJ in Bowen v Tutte [1990] A Tort Rep 68,079. It should be noted, however, that in that case Roland J thought that as much as 10 per cent could be applicable, the same figure being adopted by Wallace J in Black v MVIT [1986] WAR 32.
Having considered the evidence and the matters generally, I consider that a deduction for contingencies from the plaintiff's entitlement operating from November 1997 should be on the basis of 20 per cent, and, as far as the children are concerned, the amount of 6 per cent."
28 Mr Allan raised the possibility that the trial Judge may not have properly understood the submission made at trial in respect of the figure of 25%. He said that he submitted that a reduction of 25% was applicable where there was no intention to remarry (Knight v Anderson) but in this case the figure should be substantially greater. I read his Honour's reasons as summarising Mr Allan's original submission in this way.
29 The essence of the submissions on behalf of the appellant is that the allowance for contingencies in the future should have been much higher by reason of a high probability that the widow will cease to be dependent.
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30 The manner in which damages are to be assessed under the Fatal Accidents Act were referred to by Dixon J (as he then was) in Public Trustee v Zoanetti (1945) 70 CLR 266. His Honour said at 276 that two rules are clearly settled. One is that what is recoverable for the benefit of the widow or other relative of the deceased is the pecuniary loss resulting from his death and that nothing may be recovered by way of solatium for the suffering that his death caused to his widow or relative. The other is that in ascertaining the pecuniary loss resulting from his death, there must be taken into consideration (on the one side, the reasonable expectation of benefit upon which the claimant would have been entitled to rely, had his life not been brought to an end, and, on the other side, the pecuniary benefits, arising on his death which the claimant has a reasonable expectation, whether as of right or otherwise). His Honour gave by way of an example property the claimant might receive under the will.
31 His Honour in setting out these principles did not deal with the situation of a widow remarrying. This was, however, considered by the High Court in Willis v The Commonwealth (1946) 73 CLR 105. In that case the widow remarried five months after the death of her husband and the trial Judge found that the second husband had a position and prospects which were at least equal to those of the first husband. Thus five months after the death of the claimant's husband she was as well off as she had ever been from a pecuniary point of view. The Court upheld the trial Judge's finding that she had not suffered pecuniary loss. The Court followed the decision of the Court of Appeal in Williamson v John I Thornycroft & Co Ltd [1942] KB 658. In that case the widow died before the trial. Latham CJ said that in that case it was held that the Court was entitled to take into account the fact that the widow had only a short tenure of life before her dependence was brought to an end. Latham CJ was of the opinion therefore that the learned trial Judge in the case he was considering was right in holding that in respect of support during the period following her second marriage, the widow had not suffered any pecuniary loss by reason of the death of her first husband.
32 In the case of Wild v Eves (1970) 92 WN (NSW) 347, the Court of Appeal in New South Wales, by a majority, took the view that a widow's co-habitation with a man who is supporting her is not a factor which reduces her entitlement other than giving an indication as to the prospects of re-marriage. Jacobs and Moffatt JJA consider that the proper application of the decision of the High Court in Carroll v Purcell (1961) 107 CLR 73 would lead to that view. In that case the High Court held that rent received by the widow for the former matrimonial home and wages earned by her in employment undertaken after her husband's death should
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- not be taken into account in reduction of damages. Manning JA took the view that if a fact is proved to have happened, he did not think it could be ignored. I consider that changes in social conditions which have occurred since Wild v Eves was decided makes the reasoning in that case no longer relevant and for that reason I do not consider it should now be followed. If it is established that a widow has formed a stable relationship with a man and that they are living as man and wife and is being supported by that man, then no distinction could be made by considering whether or not they have gone through a marriage ceremony. Such a widow has in each case ceased to be dependant to the extent of the new monetary support she is receiving. In this case it is a proven fact that the widow did receive support to the extent that the trial Judge found.
33 In the present case the widow has suffered a pecuniary loss, but there is a prospect that this loss will either come to an end or be considerably lessened by her possible marriage with Mr Thumbwood. The evidence showed that he was supporting her and the children to date which means that the widow's loss has been diminished. There is no certainty that the widow's dependency will come to an end as there is always a prospect that the marriage might not come about by reason of one or both of the parties changing their mind. As the trial Judge said, the evidence as to Mr Thumbwood's contribution was difficulty to quantify and it is not certain that the widow would be better off. I am, however, of the view on the trial Judge's findings that the chances of the widow no longer being dependent and thus not suffering the damage claimed, is much higher than the figure of 20 per cent assessed by his Honour.
34 I consider that having regard to his Honour's finding that the widow is at present living on a de facto basis with Mr Thumbwood, and that there is a clear possibility that she will remarry in the future, contingencies should be fixed at a much higher figure. I would assess a figure of 60 per cent for all contingencies. The prospect of dependency coming to an end is a high one, but nevertheless, in all cases of this type there is always a prospect that such a marriage might not come about and the dependency could, for a number of reasons, end.
35 His Honour approached the matter by applying the contingency figure he found from November 1997. The period from November 1997 to the date of the trial in September 1998 would be a period of past loss which normally be proved as a fact rather than assessing a chance. It could be argued that one could not make an assessment over that period by reason of the amount of contribution from Mr Thumbwood not being properly proved. I feel, however, that his Honour's approach in
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- commencing contingencies from November 1997 is, in the circumstances of this case, a fair one. The amount of damages to be awarded is a matter of judgment. The calculations of the type made by his Honour should be made in order to base that judgment and prevent its being guesswork. In order to base a figure of loss from November 1997, I consider it open to make the calculation for dependency at the reduced rate from November 1997 in the way carried out by his Honour. As a matter of judgment, the resultant figure in the circumstances of this case would be the appropriate figure to award. I consider therefore that the amount payable to the widow should be reduced by 60 per cent in lieu of 20 per cent. The amount payable to the children should remain in the way assessed by his Honour who, in that case, made a deduction of 6 per cent.
36 The parties in the appeal brought to light one or two other adjustments they consider should be made. There were some errors in arithmetic, It was agreed that this Court, if the appeal as to damages were allowed, should give its ruling on the appropriate percentage and factors and then remit the matter back to the trial Judge to make the final adjustments. It is my view that damages should be reduced by increasing the contingency figure from 20 per cent to 60 per cent of the widow's share as assessed by his Honour and to operate from the date in November 1977 selected by his Honour.
37 I would allow the appeal accordingly.
38 WALLWORK J: I agree with the reasons for judgment of Pidgeon J. There is nothing I wish to add to those reasons.
39 MILLER J: For the reasons delivered by Pidgeon J, I agree that this appeal should be allowed and the matter be remitted to the learned trial Judge for recalculation of damages in accordance with the apportionment of liability and the deduction for contingencies considered appropriate by Pidgeon J.
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