Walden v Black

[2006] NSWCA 170

New South Wales

Court of Appeal

CITATION:	Walden v Black [2006] NSWCA 170 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	24 February 2006
JUDGMENT DATE:	5 July 2006
JUDGMENT OF:	Beazley JA at 1; Tobias JA at 7; Bryson JA at 127
DECISION:	a) Appeal allowed; b) Set aside the judgment and verdict of her Honour Judge English of 8 October 2004 and in lieu thereof order that there be a new trial as to damages; c) The respondent to pay the appellant’s costs of the appeal but to have with respect thereto a certificate under the Suitor’s Fund Act 1951, if otherwise qualified
CATCHWORDS:	EVIDENCE – witnesses – reliability – appeal against adverse credit finding – role of appellate court – considerations – demeanour – time elapsed between hearing and delivery of judgment - TORTS – negligence – wrongful death – death of spouse – damages – assessment – principles – Compensation to Relatives Act 1897 – domestic, farming and professional services provided by deceased – estimate of time devoted to activities – estimate of services that would have been provided in future - APPEALS – reviewable error – principles – natural justice – whether miscarriage of justice – whether new trial should be ordered – whether new trial would result in different outcome for successful party on appeal
LEGISLATION CITED:	Compensation to Relatives Act 1897 Fatal Accidents Act 1946 (UK) (Lord Campbell’s Act) Suitor’s Fund Act 1951 Supreme Court Act 1970 s 46A Supreme Court Rules 1970
CASES CITED:	CSR Ltd v Della Maddalena (2006) 80 ALJR 458 Daniels v Jones (1961) 1 WLR 1103 De Sales v Ingrilli (2002) 212 CLR 338 Devries v Australian National Railways Commission (1993) 177 CLR 472 Escobar v Spindaleri (1986) 7 NSWLR 51 Fox v Percy (2003) 214 CLR 118 Gillett v Callagher [1963] ALR 392 Gullifer v Pohto [1978] 2 NSWLR 353 Jones v National Coal Board [1957] 2 QB 55 Kuhlewin v Fowke [2000] QSC 404 Lewis v Dalton (1986) Aust Torts Reports 80-045 Nguyen v Nguyen (1990) 169 CLR 245 Parker v Commonwealth (1965) 112 CLR 295 Peakhurst Inn Pty Ltd v Fox [2004] NSWCA 74 Public Trustee (WA) v Nickisson (1964) 111 CLR 500 Roads & Traffic Authority v Jelfs (1999) NSWCA 179 Rosenberg v Percival (2001) 205 CLR 434 Rowe v Scanlan [1969] 1 NSWR 43 Stead v State Government Insurance Commission (1986) 161 CLR 141 Swain v Waverley Municipal Council (2005) 220 CLR 517
PARTIES:	Edwin Peter Walden Barry Gordon Black
FILE NUMBER(S):	CA 40964/04
COUNSEL:	A: B Gross QC / T Boyd R: R R Bartlett SC / B Smith
SOLICITORS:	A: Andrew Warren Associates, Bega R: Curwood & Partner, Sydney
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 23/01
LOWER COURT JUDICIAL OFFICER:	English J
LOWER COURT DATE OF DECISION:	30 November 2005

CA 40964/04
DC 23/01

BEAZLEY JA
TOBIAS JA
BRYSON JA

Wednesday 5 July 2006

EDWIN PETER WALDEN v BARRY GORDON BLACK

Facts:

The wife of the appellant was killed in a motor vehicle accident caused by the negligence of the respondent. The primary judge assessed the compensation the appellant would receive on the basis of, inter alia, adverse credit findings about the evidence given by the appellant and his son. The respondent argued that it was not open to the Court of Appeal to set aside credit-based findings, or to make the findings of fact that would be necessary to reassess compensation.

Held, allowing the appeal with costs and ordering that there be a new trial as to damages:

Per Tobias JA (Beazley JA agreeing)

1. Although an appellate court is required to make proper allowance for the advantage of the trial judge in seeing and hearing a witness, if it concludes that error has clearly been demonstrated, it is obliged to discharge its appellate duties in accordance with the law: [85]; Fox v Percy (2003) 214 CLR 118, Swain v Waverley Municipal Council (2005) 220 CLR 517, Rosenberg v Percival (2001) 205 CLR 434 and CSR Ltd v Della Maddalena (2006) 80 ALJR 458 referred to.

2. In assessing damages arising from a wrongful death, three principles are to be followed:

(a) The court must do the best it can based upon the evidence of those who are in a position to anticipate the services the deceased would have been expected to provide during his or her lifetime: [93]; De Sales v Ingrilli (2002) 212 CLR 338 referred to.
(b) Damages are to be calculated by balancing both pecuniary gains and losses resulting from death: [94]; Nguyen v Nguyen (1990) 169 CLR 245 referred to.
(c) The right to be compensated for the loss of gratuitous services is in no way dependant upon the need for such services: [96]; Nguyen v Nguyen (1990) 169 CLR 245 referred to.

3. When determining whether to order a new trial, a Court must consider several factors:

(a) Per Part 5 Rule 23(1) of the Supreme Court Rules 1970, the Court of Appeal has no power to order a new trial unless some substantial wrong has been occasioned; for example, if the trial judge has departed from the rules of natural justice: [116]-[117], Stead v State Government Insurance Commission (1986) 161 CLR 141 and Jones v National Coal Board [1957] 2 QB 55 referred to.
(b) Because of the need for finality in litigation, a new trial will not be ordered if it would inevitably have the same result as the first trial. However, if a trial properly conducted could possibly produce a different and more advantageous result for the successful party on appeal, a new trial should be ordered: [121].
(c) A court is justified in ordering a new trial if a substantial wrong or miscarriage has been occasioned, and it cannot be found that a new trial could not possibly produce a different result: [125].

Per Bryson JA (dissenting)

4. Following the death of a spouse, it has been clearly established that:

(a) Inheritance by a widow of the matrimonial home and furniture is not treated as a deduction in calculating damages. This is because the passage of ownership to the wife would have no impact on her enjoyment of the home, given the probability that the wife would have continued to have that enjoyment if the husband had survived.
(b) This rule does not apply to other assets, or to widowers or children.
(c) In cases other than the passage of the matrimonial home, the facts must be examined as closely as possible in the circumstances to see whether there are reasons why the prima facie advantage of inheritance to property rights should be taken into consideration: [152].

5. In the present case, these principles may well come into consideration. Accordingly, there is no basis for concluding that a new trial would produce a more favourable result for the appellant, and the appeal should be dismissed.

CA 40964/04
DC 23/01

BEAZLEY JA
TOBIAS JA
BRYSON JA

Wednesday 5 July 2006

EDWIN PETER WALDEN v BARRY GORDON BLACK

Judgment

1 BEAZLEY JA: This matter was heard by Tobias and Bryson JJA pursuant to the provisions of s 46A of the Supreme Court Act 1970.

2 Their Honours being unable to agree on the result, the parties consented to my hearing the matter by reading the transcript of argument as well as the relevant material in the appeal book.

3 Tobias JA has set out the history of the matter and the relevant legal principles. It is not necessary to repeat them. The essential difference between their Honours' approach was whether this Court could and should interfere with her Honour's determination given that it was based upon an adverse credit finding in relation to the evidence of both the appellant and his son.

4 In Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, the High Court once again reviewed the circumstances in which an appellate court may interfere with a credit-based finding of a trial judge. This decision, and the other decisions of the High Court that dealt with this issue, in particular CSR Ltd v Della Maddalena (2006) 80 ALJR 458; [2006] HCA 1, are reviewed in detail by Tobias JA. I respectfully adopt his Honour's reasons on this issue, especially at [82] and [83]. I would add that even if her Honour's credit finding was based, in any way, on demeanour that does not make her judgment impregnable from appellate review. That is particularly so in this case given that many of her findings were either wrong or did not follow from the evidence. I refer in particular to the supposed differences in the evidence given by the appellant and Matthew relating to the time the deceased assisted her father and an unrealistic assessment of the amount of time the deceased would have spent providing domestic assistance to the deceased, in my opinion, 12.5 hours a week would not cover the time involved in meal preparation, let alone take into account other household tasks that the deceased performed; and her Honour's apparent misunderstanding as to the work performed by the deceased on the farm within areas of expertise that were not shared by the appellant or Matthew.

5 It is also apparent that her Honour did not accurately understand the law in this area. One example is her Honour's statement at Red Book 109 T-U that:

"If I were to accept the evidence of the [appellant] and his son, I would be required to make a finding that neither of them are them are able to care for themselves in any way, that however, is contrary to their reluctant concessions made during cross examination".

The question for her Honour's determination was not whether the appellant and Matthew were able to care for themselves, but what was the likely level of services that the deceased would provide in the future. I am inclined to think that her Honour's credit findings were based, in part at least, on her misunderstanding of the law.

6 Having regard to these matters, and as I accept and agree with the reasons of Tobias JA, I agree with the Orders proposed by his Honour.

7 TOBIAS JA: On 27 August 1999, Janet Maude Walden (the deceased), the wife of the appellant, Edwin Peter Walden, was killed in a motor vehicle accident caused by the negligence of the respondent, Barry Gordon Black.

8 On 25 July 2001 the appellant instituted proceedings against the respondent in the District Court of New South Wales claiming damages under the Compensation to Relatives Act 1897 (the Act) with respect to the death of his wife. The respondent admitted liability but denied that the appellant was entitled to any damages.

9 The proceedings were heard by her Honour Judge English (the primary judge) in November 2003. The evidence and the oral addresses concluded on 24 November 2003 after which the parties provided the primary judge with written submissions on or before 24 December 2003. The primary judge reserved her judgment, which was not delivered until 9 September 2004. Having published her findings, her Honour formally entered judgment in favour of the appellant on 8 October 2004, awarding him the sum of $491,393 and costs.

10 The appellant has appealed to this Court alleging that the primary judge erred in her findings in a number of respects resulting in him receiving significantly less compensation than that to which he was properly entitled. It was the appellant’s submission that, in the event that this Court determined that the primary judge had erred, it should itself reassess the compensation to which the appellant was entitled.

11 On the other hand, the respondent submitted that her Honour’s findings were based on an adverse view of the credit of the appellant and his son Matthew as a consequence whereof it was not open to this Court to intervene to set aside what were essentially credit-based findings. However, if this Court did find appealable error, then because issues of credit remained for determination, it was contended that it would be inappropriate for this Court to make the findings of fact necessary to reassess compensation and that accordingly, the matter should be remitted to the District Court for a new trial.

The nature of the appellant’s claim before the primary judge

12 At the time of the hearing in November 2003 the appellant was 66 years of age. At the time of her death in August 1999, the deceased was aged 53 years and was approximately nine years younger than the appellant. They were married in 1968 and had three children - two daughters, Katrina and Carmen, and a son, Matthew. Matthew was 28 at the date of his mother’s death and 32 at the date of the hearing. At the time of his mother’s death Matthew resided with his parents and at the time of the hearing resided with his father as he was involved full-time in the capacity of a dairyman in the operation of the dairy farm which had been owned and conducted jointly by the appellant and the deceased.

13 Prior to the deceased’s death both daughters had moved to Sydney where they continue to live. Katrina was a theatre-nursing sister at St George Hospital and was highly trained as a cancer surgery theatre nurse. She married in 2001 but was widowed three months later. At the time of her mother’s death Carmen was in the final year of her studies at the University of Technology Sydney while as at the date of the hearing she was a property trust manager for a trustee company and was engaged to be married.

14 The appellant’s claim for compensation was advanced under four heads. The first three related to the services she provided to the joint businesses owned and operated by herself and the appellant, the fourth was directed to the domestic services she provided to and for the family.

15 At the time of her death the deceased was involved in three businesses owned and operated by herself and the appellant. The first was a joinery business conducted by Bega Joinery Pty Limited (the joinery business) in which she and the appellant were directors and equal shareholders. The appellant was a cabinet maker/joiner by trade and worked fulltime as such in that business. The deceased worked as an employee of the joinery business providing clerical and administrative services allegedly for four hours per day, five days per week (a total of 20 hours per week).

16 The primary judge found, as this finding was not challenged on appeal, that the deceased and the appellant would have retired from the joinery business on 30 June 2004. The appellant therefore claimed compensation in respect of the loss of the deceased’s services to that business in the sum of $100,475 upon the basis that she would have continued to provide clerical and administrative services to the business until it was either sold or ceased operating at the end of June 2004.

17 The second business in which the deceased was involved related to the letting of some holiday units located at Tathra (approximately 20 minutes drive from the family home near Bega) and which were owned by a family trust which she managed. The appellant claimed that her services in respect of the units amounted to seven hours per week in respect of which the amount of $4,865 was claimed by way of compensation. The primary judge allowed this claim and there was no issue with respect to it upon the appeal.

18 However, the units were sold by the trust in June 2000 for the sum of $319,000 of which $100,000 was used by the appellant to repay a debt to the estate of the deceased’s father; $120,000 was used to pay off the mortgage on the dairy property and $75,000 was used for the purchase of additional land for the dairy and for the upgrading of the dairy farm machinery. I mention these matters because they were relied upon by the respondent as financial benefits received by the appellant as a consequence of the deceased’s death which he may not otherwise have received had she survived him and in respect of which, so it was submitted, a set-off in the amount of $80,000 should be applied in the event that the Court determined to reassess the compensation to which the appellant was entitled.

19 The third business in which the deceased was involved was the ownership, management and running of the dairy farm, which had been in her family since 1896. The deceased and the appellant had purchased the property jointly from her parents in 1992 for $250,000. It comprised an area of 70 hectares although the family owned a further 198 acres which were used for various purposes complementary to the dairy business.

20 The appellant claimed that the deceased worked in the dairy business for at least four hours per day, seven days per week (a total of 28 hours per week). Her work in that business included stock recording, employment of staff and contractors, health management of the herd, resource management, calf rearing, purchase and sale of stock, machinery and equipment and attending industry meetings and shows as a representative of the family. She had been raised on the farm by her parents and had significant experience and expertise in stock management particularly with reference to breeding up the herd. In this respect the deceased reared the calves and selected the best heifers for breeding for the purpose of increasing the value and quality of the herd and thus enhancing the reputation of the dairy.

21 The deceased was an accomplished horsewoman and utilised a horse for the purpose of attending to stock and carrying out inspections of the more remote parts of the property which could not be accessed by vehicles. Furthermore, there was an advantage in using a horse for the purpose of stock inspections as it permitted closer inspection of the cows that were less disturbed than if a vehicle was used for that purpose. The appellant’s evidence was that the deceased placed as much importance on the care and health of the dairy herd as she did with respect to her children. At the time of her death there were approximately 200 head of dairy cattle comprising approximately 100 to 110 milking cows, the balance being calves, heifers and dry cows.

22 The deceased was intimately involved in the recording and registration of the stock as the farm was a registered Holstein stud. The animals were registered and a precise record kept of their pedigree and breeding their milk was tested to identify the highest yield of butterfat and protein.

23 As I have noted, the deceased was particularly skilled in herd management. Neither the appellant nor Matthew had those skills, the latter being mainly concerned with work as a dairyman, that is, herding the milking cows to the dairy, placing the cows in and attaching them to the milking machine and cleaning the equipment at the conclusion of the milking operation. According to the appellant, since the death of the deceased Matthew had taken over some of the work which his mother had previously performed but, due to his lack of skill and experience in herd management, the standard of the herd had significantly deteriorated. His evidence was that the farm had always been a large part of the deceased’s life, and it was her ambition to ensure that it remained in the family and that the family tradition since 1896 of running a high-class dairy operation would continue.

24 In her judgment the primary judge was not prepared to accept that the deceased worked 28 hours per week in the dairy business. She reduced the figure to 21 hours per week up until June 2004. Thereafter her Honour found that there would have been a significant reduction in the deceased’s hours as a consequence of the appellant’s contribution to the running of the farm upon his retirement from the joinery business as well as Matthew’s involvement in the computerisation of the record keeping associated with the farm. She therefore reduced the contribution of the deceased to the dairy farm business after June 2004 to seven hours per week.

25 In calculating the hourly rate at which the deceased’s services should be assessed for the purpose of determining compensation, the primary judge adopted a rate of $37.50 per hour which the appellant did not challenge. Although the appellant originally challenged the primary judge’s reduction of the hours contributed by the deceased to the operation of the dairy farm from 28 to 21, at the hearing of the appeal senior counsel for the appellant abandoned that challenge although he strongly maintained his challenge to the reduction of the deceased’s contribution post-June 2004 from 21 to seven hours.

26 The fourth head of claim advanced by the appellant was based on the deceased’s domestic services with respect to the running of the family home including work in the extensive garden and vegetable patch. Under this heading the appellant claimed that the deceased worked 25 hours per week providing housekeeping, cleaning, cooking and maintenance services to the house and grounds. Her Honour accepted that the deceased performed the role of wife, mother and homemaker with no hired help in respect of the family home, which comprised four bedrooms, two bathrooms and associated living spaces. Accordingly, the claim made for the loss of the deceased’s household services was on the basis of 25 hours per week at a rate of $17 per hour. The figure of 25 hours per week was sourced from the appellant’s evidence although in the Ordinary Statement of Claim (which was amended on a number of occasions but not relevantly for present purposes) the loss of past and future domestic services was claimed at the rate of “at least 20 hours per week”. Nevertheless the appellant’s evidence was that the deceased expended an average of 25 hours per week or three and a half hours per day in providing domestic services for the benefit of himself, herself and Matthew. It was claimed that the deceased devoted that time to the performance of domestic services which included maintenance of the house as well as its grounds and gardens.

27 Following the deceased’s death, the appellant engaged the services of two housekeepers, Joan Smith and Carol Wiley. The former worked for four hours per week performing housekeeping duties whilst the latter did the shopping and cooked meals for approximately four hours per week. It was not suggested that they provided a complete replacement for the deceased’s services. Thus the primary judge noted that the vegetable garden and orchard were no longer maintained. Her Honour found that although Ms Wiley did the shopping and cooking, she did not do so every day but only as a “stop gap”. They were paid $35 and $50 per week respectively which the primary judge averaged at $10 per hour.

28 A significant issue arose during the course of the hearing which the primary judge regarded as particularly relevant to the appellant’s credibility and which related to the amount of time that the deceased devoted to looking after her aged father, Mr Rally Heatherington, who resided in a separate dwelling on the dairy farm but who, since 1979 when he suffered a stroke which left him blind, was looked after by a full-time live-in carer, and also by a district nurse. Mr Heatherington died in August 2000 at the age of 91 years. Although he had been totally blind since 1997 his health was otherwise good. He was mobile and was able to go for walks attended by his carer.

29 It was common ground that the deceased was a loving and caring daughter to her father. The house in which he lived was 500 to 600 metres from the family home and adjacent to the dairy. It was also common ground that at some point in time there was a dispute between the deceased, her father and her brother which resulted in the latter being appointed power of attorney for his father. Some of the evidence would seem to indicate that this occurred in 1999 but, in any event, it did not occur long before the deceased’s death. The issue that arose related to the extent to which prior to that time the deceased spent caring for her father.

30 The appellant contended that after 1997 the deceased did not spend much time with her father and that she provided minimal benefits and services to him given that he had the services of a full-time carer and a district nurse who catered to his physical and medical needs. It was contended that the deceased, although regarding herself as responsible for her father, acted only in a supervisory capacity. According to the appellant, the deceased was close to her father but did not spend much time at his house. On the other hand, Mr Heatherington attended at the family home at least once a week, usually on a Sunday, to eat with the family and watch rugby league on television with the appellant.

31 The respondent contended that the appellant had deliberately underestimated the extent to which the deceased was involved with the care and welfare of her father alleging that this in fact occupied some hours per day. Consequently he submitted that her Honour should find that the appellant had exaggerated the number of hours devoted by the deceased to both the dairy business and her domestic chores, as she would have spent many of them in caring for her father.

The findings of the primary judge

32 As I have already observed, the primary judge accepted the appellant’s claim with respect to the deceased’s management of the units in Tathra in the sum of $4865. However, she rejected the claim in respect of the joinery business and significantly reduced the claims with respect to the deceased’s contributions to the dairy business on the one hand and her domestic services on the other.

33 According to the primary judge, the appellant in his evidence maintained that the deceased devoted 70 hours per week minimum to the joinery business, the dairy, managing the units and performing domestic services. This averaged out at 10 hours per day in circumstances where the primary judge found that the deceased’s day commenced at 6.30am and ended when she normally retired to bed at 10pm. Accordingly, her Honour found (at Red 106V-W) that:

“If the deceased performed the functions as evidenced by the plaintiff and her son, she was an exceptional woman who had a great deal of energy and was selfless, she clearly spent no time on herself despite having some 7 hours a day unaccounted for by her husband and son.”

34 It is not clear how the primary judge determined that some seven hours a day were unaccounted for: on the basis that the services she performed averaged 10 hours per day and that her waking day was 15½ hours, then there were five and a half hours unaccounted for which, no doubt, she was free to spend on herself or on other personal pursuits.

35 As I have already observed, the appellant’s evidence as recorded by the primary judge was that the deceased worked in the joinery business for 20 hours per week, in the administration and letting of the Tathra units for seven hours per week, in the dairy business for 28 hours per week and for 25 hours per week in the provision of domestic services, a total of 80 hours per week as distinct from the minimum of 70 hours per week found by her Honour (at Red 106 P-Q). On an average daily basis, the difference between 70 and 80 hours per week is between 10 hours and 11.4 hours per day. However, it is appropriate to proceed upon the basis of her Honour’s own finding that on the evidence of the appellant, the deceased performed the relevant services for a minimum of 70 hours per week or an average of 10 hours per day.

36 Leaving aside for the moment the primary judge’s findings as to a reduction in the hours the deceased would have spent providing the relevant services after June 2004 when the appellant retired, there does not seem to have been any dispute that the deceased worked in the joinery business for 20 hours per week; nor, as I have already observed, was there any dispute that she worked seven hours per week in respect of the Tathra units. Her Honour found that at the time of her death the deceased worked in the dairy farm business for 21 hours per week rather than 28. As I have already indicated, that figure is no longer the subject of challenge.

37 The major challenge was to the appellant’s evidence that the deceased spent 25 hours per week in providing domestic services. The primary judge (at Red 109F) found that this claim had been “exaggerated” by both the appellant and Matthew and that their evidence with regard to the amount of domestic duties provided by the deceased and their lack of contribution thereto was “unreliable” (Red 109 N-O). She criticised the appellant as being reluctant to admit that the deceased spent time with her elderly father providing services over and above those provided by the paid carers in addition to what she ordinarily did around the house for the appellant and Matthew. That time (with her father) would, according to her Honour, have further added to her waking hours each day. She regarded the appellant’s evidence as contrary to that of Matthew who said “his mother spent quite a bit of time with her father and he assessed that time as half an hour a day every couple of days” (Red 109R).

38 If this evidence of Matthew is to be accepted, as apparently it was, then it would amount to approximately two hours per week which was consistent with the appellant’s evidence that the time spent by the deceased in caring for her father up to the time of her death was “minimal” compared to the hours she devoted to the other services to which I have referred: see Black 53P.

39 Her Honour further held (at Red 109T-U) that if she was to accept the appellant’s and Matthew’s evidence

“I would be required to make a finding that neither of them are able to care for themselves in any way, that however, is contrary to their reluctant concessions made during cross examination.”

The first part of this observation is difficult to follow whereas I shall return to the finding concerning “ their reluctant concessions ” and to the other credit findings of her Honour later in these reasons.

40 The primary judge also found (at Red 110 L-M) that the deceased worked “hand and foot” caring for the appellant and Matthew “but not to the extent claimed by them”. She determined that a proper assessment of the hours spent by the deceased in the provision of domestic services was represented by the services provided by the paid housekeeper and cook (Ms Smith and Ms Wiley), together with some small additional hours which had been provided by those two women without pay. In this respect, the evidence was that they were paid for four hours per week each.

41 Her Honour concluded (at Red 110 Q-S) that she would only allow the appellant 12½ hours per week for the deceased’s domestic assistance including gardening, but that this would be confined to the period from the date of her death until his retirement in June 2004, after which she reduced the number of hours to nine per week until his death. To this number of hours she applied a rate of $10 per hour based on the rates paid to Ms Smith and Ms Wiley and which she regarded as evidence of the rate at which housekeeping type services were provided in a rural area. Although the appellant originally challenged this rate (Ground 6 of the Grounds of Appeal), it was abandoned on the hearing of the appeal.

42 Her Honour rejected (at Red 108 W-109E) the appellant’s claim with respect to the joinery business. She did so upon the basis that this business was a commercial operation and that the company was not merely a vehicle to minimise taxation. Furthermore, since the death of the deceased the business had flourished and the appellant’s income had doubled. This was due to the fact that the appellant, after his wife’s death, drew for himself an amount equivalent to the wages which she had earned when working in the business. He was able to do so as the arrangement he had made with his wife’s replacement, a Mr Mossler, did not involve paying her a wage as she received payment in kind by having access to the business’ computer for the purposes of assisting in the studies she was then undertaking. As the appellant was now drawing the wages that would have been previously paid to the deceased, it followed, according to her Honour, that the appellant had not sustained any loss as a consequence of the joinery business being deprived of the deceased’s services.

43 This finding of the primary judge was challenged on the appeal (Ground 9 of the Grounds of Appeal) and it is convenient to dispose of it at this point. The basis of that challenge was that the income attributed to the deceased in the books of Bega Joinery was part of the overall family income from which the appellant and Matthew derived a benefit and, therefore, on her death represented a financial or material loss to the family. Given the factual foundation of her Honour’s finding on this issue (which was not challenged), in my opinion this ground of appeal has no substance and should be rejected.

44 As I have already noted, her Honour found that after June 2004 the number of hours that the deceased would contribute to the dairy farm business would reduce from 21 to seven hours per week. In so doing, her Honour accepted (at Red 111 G-I) the deceased’s “obvious love of the family farm” and that she would have continued to provide services for the duration of her life while she was able

“although on a reducing basis as she aged, the very nature of farm work she would have been involved herself in being largely physical”.

45 Furthermore, the primary judge found (at Red 111J) that upon the cessation of the joinery business in June 2004, the appellant, contrary to his assertions, would have contributed more towards the domestic chores as a consequence whereof the need for the deceased to provide those services would have reduced. Given that she was no longer required to spend 20 hours per week in the joinery business, her Honour found (at Red 111 L-M) “it more probable than not that she would have naturally chosen to spend more time with her daughters [in Sydney] reducing the time available to spend on the farm and domestic chores”. Her life, her Honour found, would have changed following the cessation of the joinery business in June 2004. She thus found (at Red 111O-Q) that thereafter

“… her hours would have been significantly reduced by the contribution of the [appellant] upon his retirement, the involvement of Matthew …In the computerisation of the record keeping and doing the best I can I assess her contribution in the order of 7 hours per week until what would otherwise have been her death assessed on the life tables.”

The primary judge’s findings with respect to the appellant’s and Matthew’s credibility

46 At a number of points in the primary judge’s judgment, she made adverse findings of credibility with respect to the appellant and his son. Thus, when dealing with the issue of the time the deceased spent with her father, her Honour found (at Red 106C-D) that the appellant

“appeared reluctant to volunteer evidence regrading (sic) the deceased’s relation and involvement with her father.”

47 Again, when dealing with the appellant’s claim with respect to the deceased’s domestic services, her Honour found at Red 109F, as I have already observed in [37] above, that that claim was “exaggerated”. Furthermore, she found the appellant’s and Matthew’s evidence with regard to the amount of domestic duties provided by the deceased, and their own lack of contribution thereto, to be “unreliable”. Her Honour considered (at Red 109 O-P) that the appellant “in particular was reluctant to admit that his wife spent time with her elderly father providing services over and above those provided by paid carers in addition to what she ordinarily did around the house for him and their son”.

48 In the same context, and as I have already noted in [39] above, her Honour found that if she was to accept the appellant’s and Matthew’s evidence, she would be required to make a finding that neither of them was able to care for himself in any way and that this was contrary to their “reluctant concessions” made during cross-examination. I pause to observe that her Honour’s assertion that her acceptance of the appellant’s and Matthew’s evidence would require her to make a finding that neither of them were able to care for themselves is illogical. A reading of their evidence makes it clear that each was perfectly able to care for himself and carry out domestic duties but simply did not need to do so because those duties were carried out for them by the deceased.

49 Immediately following the foregoing observation, her Honour (at Red 109V-110E) articulated her reasons for finding that the appellant’s evidence with respect to his expectations of his wife’s continued provision of domestic services had she lived was not credible:

“The Plaintiff eventually reluctantly conceded that whilst he could not picture himself participating in the domestic chores he would help with the tasks the deceased normally carried out on the farm once they had both retired. He disputed the suggestion that the deceased would be entitled to sit back and take a well earned rest upon their retirement. Yet he was willing to concede that he did help in the orchard by pruning and spray and assisting with (sic) mowing tasks whilst the deceased was alive. He would not concede that he would assist with cooking meals, because that simply ‘wasn’t the way this was done’. However, he ultimately conceded that he was currently providing meals for himself and his son, he was physically capable, he was required to fend for himself during his national service.
During cross examination he conceded that the deceased did not provide the plaintiff and his son with cooked breakfasts and that the son was capable of making his own breakfast before he went to the dairy.”

The appellant’s challenge to the primary judge’s credit findings

50 After finding that the evidence of the appellant and his son with regard to the time spent by the deceased on providing domestic services to the family, and that their lack of contribution thereto was unreliable, the primary judge made the following assertion (at Red 109O-P):

“The [appellant] in particular was reluctant to admit that his wife spent time with her elderly father providing services over and above that provided by paid carers, in addition to what he says she did ordinarily around the house for him and their son.”

51 The cross-examination of the appellant relied upon by the respondent in support of this alleged reluctance on the appellant’s part to make the admission referred to by her Honour was identified by him as being that at Black 50H-61S; 63L-65H and 66N-69F. Although it is true that the appellant’s credibility was squarely put in issue during cross-examination (see in particular Black 59B-C and 68B), a careful reading of the totality of the appellant’s cross-examination so identified does not, in my opinion, reveal any reluctance on the appellant’s part to make the admission referred to by her Honour and which could legitimately be relied upon by her as reflecting adversely upon the appellant’s credibility.

52 It is clear from a fair reading of that evidence that the appellant rejected on numerous occasions as being incorrect, questions which asserted that the deceased spent time with her father other than to a minimal extent compared with the time she spent on her dairy farm duties: see, for example, the cross-examination at Black 53C-Q. It is equally clear from the passages from the cross-examination relied upon by the respondent that the appellant in no way indicated reluctance when he appeared to readily agree with propositions put to him by the cross-examiner. His many answers agreeing with assertions put to him were made in the same straightforward manner as when he denied as correct other propositions that were put to him with which he disagreed.

53 In my view there can be no suggestion that the appellant’s answers were other than clear and straightforward: there was no apparent prevarication of any kind. Where he disagreed with the proposition being put to him by the cross-examiner, he made that clear and at no time did he depart from those denials even though the questions were put to him on a somewhat repetitive basis. His answers were clear, straightforward and totally responsive to the questions he was being asked. In my opinion there was no basis in the transcript of the cross-examination relied upon by the respondent to support the finding by the primary judge that the appellant was reluctant to admit that his wife spent time with her elderly father providing services over and above those provided by paid carers in the sense that that reluctance, which is more accurately described as a refusal to admit, could be said to reflect adversely upon the appellant’s credibility.

54 The primary judge also found in the same context that the appellant’s evidence was contrary to that of Matthew who said that his mother spent quite a bit of time with her father which he assessed as half an hour a day every couple of days. The evidence relied upon by the respondent to support this finding is at Black 142J-143S and 150X-151I (in chief) and 166U-169I (in cross-examination). As far as Matthew’s evidence in chief is concerned, no questions were directed to the issue except to the extent to which he agreed that the deceased would see her father when she came down to the dairy at approximately 7.30am to 8am in the morning but “not really often, but yeah, occasionally he would come down to the dairy or she would see him”.

55 A comparison of Matthew’s evidence in cross-examination at Black 166U-169J with that of the appellant on the same subject matter reveals that it is entirely consistent with the evidence in cross-examination of the appellant to which I have already referred. Both referred to the fact that the deceased transported her father to his local general practitioner, that she would sometimes provide care during the time when neither the carer nor the nurse were there, that occasionally she would accompany him in walks to the mailbox and that once a week she would have her father over to the house for a meal. Having agreed that the deceased was close to her father (as had the appellant), Matthew also agreed that his mother would try and spend quite a bit of time with her father which included seeing him at his house. However, when asked whether she spent quite a bit of time there with him, he responded:

“I wouldn’t say quite a bit of time, no, she’d probably spend half an hour with him every couple of days.”

56 This answer was seized upon by the primary judge as being inconsistent with those of the appellant on the subject of the extent to which the deceased spent time with her father. But, as I have already observed in [38], half an hour a day every couple of days amounts to approximately two hours per week. Further, as the appellant said (at Black 53P), this was minimal compared to the time she spent on her other duties. In my opinion there is nothing in the cross-examination of either the appellant or Matthew on this subject matter to justify her Honour’s finding that they and, in particular, the appellant exaggerated the time the deceased spent in providing domestic services to them. This is particularly so given that the respondent did not call Mr Heatherington’s full-time carer who, one would have thought, could have provided first-hand evidence as to the time, such as it might have been, spent by the deceased with her father.

57 The appellant’s evidence in chief was that the deceased would spend, on average, approximately 25 hours per week providing domestic services: Black 15B-E. He referred to the tasks performed by her in the provision of those services at Black 14S-15D; 19I-P; 25V-26C and 38B-42S. The cross-examination relied upon by the respondent in challenging the number of hours alleged to have been devoted by the deceased to the provision of domestic services was identified as being at Black 107H-109L and 123D-124M. The first of those references established no more than that on most if not all mornings the appellant and Matthew prepared their own breakfast.

58 The second reference established that the tasks performed by the deceased around the house would benefit herself as well as the appellant and Matthew; that the deceased swept and mopped the floors every day and that the appellant did not; that the deceased washed and cleaned up after meals including breakfast; that although the appellant was capable of making up the beds and washing, the deceased attended to those matters.

59 Much of the cross-examination suggested that the appellant would have contributed far more to the household after he retired from the joinery business in June 2004 and would thus have relieved the deceased from many of her domestic activities. That cross-examination is to be found at Black 79R-82S; 96C-98D; 99Y-104H; 112J-112W and 123D-124M. I have already referred to the last-mentioned of those references above as the respondent also relied upon it.

60 In the first of those transcript references, the appellant accepted that upon retiring from the joinery business he would have had more time to spend around the farm and to attend to household matters. He agreed that he would have wanted to help his wife out. However, when asked whether he would have wanted to give his wife a chance to sit back and take a well-earned rest, he responded, “that’s not the way it was”. The following (Black 80 H) exchange then took place (at Black 80M-Q):

“Q. With you at home more and retired it’d be really you who would take up much more of the domestic situation and helping out because you were retired?
A. No, I wouldn’t picture myself in a domestic situation. I would help with the tasks that she would normally carry out on the farm.
Q. But you’d also help around the house, wouldn’t you and why would she need to get up so early and do these things as she’s put it if you’re at home and able to do these things?
A. People have a routine which is hard to break and she may or she may not take an easier life.”

61 After agreeing that the deceased was much younger than he, the appellant disagreed with the cross-examiner that on retirement he would have relieved his wife of the provision of financial management services for the farm and would have taken them over himself for her benefit. The following exchange then occurred (at Black 810-82L):

“Q. You’d be able to give your wife a well earned sleep in and you could help prepare meals and so on, couldn’t you?
A. That’s not the way it would be.
Q. When you say that’s not the way it would be, there’s no reason why you couldn’t have done that, is there by June 2004?
A. It is a possibility but I don’t see that happening.
Q. When you say it’s a possibility there’s no reason why you couldn’t do it is there?
A. Hypothetical, it’s a hypothetical thing that you’re putting to me.
Q. We know its hypothetical because unfortunately --
A. I know my wife and I know that she would have liked to see the farm prosper not --
…
A. And not stagnate.
Q. There’s no question of her stagnating or the farm prospering. There’s no reason why you couldn’t have looked after her domestically seeing you have retired?
A. Yeah, I don’t agree.
Q. There’s no reason why it couldn’t be is there?
A. Yeah, I agree there’s no reason for that. Yes, there is a reason, of course there is a reason.
Q. I suggest to you there’s no reason.
A. I don’t agree with that.
Q. You’re physically and mentally capable.
A. My house was ruled by a woman.”

62 In the second reference referred to above (Black 96C-98D), the appellant agreed that with all the deceased was doing she would have been “pretty tired” (Black 96 J-K). However, he said that she had been doing it every day for “quite some years” (Black 96 M). He agreed that he would want to help her as much as he could after he retired by doing the things she could not. The cross-examination then continued (Black 96 T-X):

“Q. Well you say things she wasn’t capable of she would have been pretty tired wouldn’t she, naturally enough?
A. She was a very fit woman and – no I don’t agree with that, no.
Q. And she was someone who had outside interests didn’t she?
A. That’s right.”

This reference was to her interest in the local pony club, church groups and fairs that she attended on occasion.

63 At Black 98 the appellant disagreed with the proposition that once he had retired from the joinery business he would have expected the deceased to want to go out more, although he accepted that there would have been occasions when she would have wanted to stay with her children in Sydney. He further agreed (Black 99 F-G) that she enjoyed travel and that when they retired she would have “jumped at the chance” to go away and do other things which she had been unable to do prior to their retirement.

64 The appellant was then cross-examined as to what he would have done after his retirement from the joinery business. He observed that as he was a cabinet maker/joiner his wife had a wish list of items she wanted, such as furniture, which he would have concentrated on making at the Bega Joinery factory as a hobby. At Black 102 F-G, when asked whether it was his intention to have done more around the house when he retired, the appellant responded “not necessarily”. When taxed on that answer he said that his interest would be to help the family as a whole as well as his wife. The following exchange then occurred (at Black 102L-V):

“Q. But that wish list wouldn’t in any way have prevented you from doing cooking for yourself or her could it?
A. I don’t agree in any way with that statement.
…
Q. And it wouldn’t have prevented you from doing things like ironing or sweeping or mopping would it?
A. Physically I would be capable of doing that, the last time I fended for myself, sorry Your Honour, I will just answer the question.
Q. The last time you fended for yourself was when?
A. National Service in 1957.
Q. Well no disrespect again but in terms of sweeping or mopping it’s not a learned skill is it?
A. No it’s not.
Q. There’s no reason why you couldn’t and wouldn’t do that about the house?
A. I could do it but I couldn’t see myself in that role.”

65 The primary judge apparently concluded (at Red 109Y-110C) from the foregoing evidence that it involved an ultimate concession upon the part of the appellant that he was currently providing meals for himself. But his son and that he was physically capable of fending for himself having done so during his National Service. I do not regard the manner of his response to the questions asked of him on this subject as involving reluctance to concede anything. Further, the so-called concession is hardly a firm foundation, even in part, upon which to support a serious finding adverse to the appellant’s credit.

66 The appellant was further cross-examined as to his ability to cook. He accepted, naturally, that he currently provided meals for himself but when asked whether he was able to cook before his wife passed away, he responded (at Black 103T-U) that his “wife’s comment was that ‘Peter could not boil water’ “. Again, the primary judge concluded (at Red 109Y) that the appellant would not concede that he would assist with cooking meals because that simply “wasn’t the way this was done”. However, it is clear from the evidence to which I have referred that the appellant willingly accepted that he prepared his own breakfast, had little in the way of cooking skills and, most importantly, in their household it was the deceased who undertook the obligation of preparing meals for the family.

67 It is apparent from the evidence that the deceased regarded household tasks as her sole responsibility – which is not surprising given her country upbringing in the 1950s and early 1960s. Even the primary judge accepted (at Black 110L) that the deceased worked “hand and foot caring for [the appellant] and their son”. However, she did not accept that the deceased did so to the extent claimed by them. That finding was very much based upon her adverse determination as to their creditworthiness which, in turn, was based upon her findings as to the appellant’s reluctance to make concessions under cross-examination. But there were no indications that the so-called concessions relied upon by her Honour were made reluctantly and, in any event, they related to essentially immaterial admissions.

68 At Black 112, after saying that he would hand over the farm to Matthew after June 2004, the appellant was asked whether he and his wife’s involvement at the farm would become somewhat incidental. He disagreed, saying (at Black 112 O-P)that his involvement would “become much more”. The following exchange then occurred (at Black 112S-W):

“Q. Come June 2004, you would have had much more time to dedicate, to relieve your wife of her involvement on the farm?
A. No, that’s not right.
Q. Why not?
A. Janet’s particular skills were with – Janet’s particular skills were with young stock. Birth recording, breeding and my efforts would be directed towards fencing and other improvements.”

69 At Black 113 L-O the appellant agreed that Matthew was proficient with computers and that it was necessary for the dairy business to computerise its record keeping. When it was suggested to him that as a consequence of this changeover in the method of record keeping the deceased would have been less involved in the compilation and preparation of the dairy farm’s records, he responded (at Black 114 E-F) that “the compiling of the necessary data would still be Janet’s and the operation of the computer would be Matthew’s”. At Black 114), the appellant said, to the same effect, that his wife would still have been required to compile the data for Matthew to process through the computer. The appellant was then asked (at Black 114 V-W):

“Q. To the extent that there was any compilation still by your wife, she was preparing Matthew for the taking over of the farm was she not?
A. No I would see her role as not changing.”

70 Finally, when the appellant was challenged at Black 122 V-Y that the work that the deceased performed around the household for the benefit of herself, the appellant and Matthew would not have taken 25 hours per week, he responded “It would have taken slightly less than 25 hours a week if you factored my wife out of that”.

Conclusions with respect to the appellant’s challenge to the primary judge’s credit findings

71 The foregoing analyses of the evidence relied on by the respondent as the foundation of the primary judge’s credit findings lead me to the conclusion that there was no evidentiary basis for the primary judge’s conclusion (at Red 109T-U) that

“If I were to accept the evidence of the [appellant] and his son, I would be required to make a finding that neither of them are able to care for themselves in any way, that however, his contrary to their reluctant concessions made during cross-examination.”

72 In my view there were no “reluctant concessions” of the nature of those found by her Honour. Moreover, acceptance of the appellant’s and Matthew’s evidence did not require her to make a finding that neither of them were able to care for themselves. It is clear that they were indeed able to care for themselves but that this was unnecessary as the deceased considered it her responsibility to provide for their care. The latter fact does not in any way militate against the appellant’s and Matthew’s evidence that the deceased voluntarily provided those services in the manner and to the extent described by them. Furthermore, as the authorities to which I refer below demonstrate, the question of need on the part of the appellant or Matthew in respect of the services gratuitously provided by the deceased is irrelevant in determining the value of those services when they have been lost as a consequence of the death of their provider.

73 Further, a consideration of the foregoing evidence does not reveal “reluctant concessions” on the appellant’s part that whilst he could not picture himself participating in the domestic chores, he would help with the tasks the deceased normally carried out on the farm once they had both retired. Contrary to her Honour’s finding, the appellant did not dispute the suggestion that he and the deceased would be entitled to sit back and take a well earned rest upon their retirement: what he did say when asked (at Black 80H) whether he would want to give her the chance to sit back and take a well earned rest, was “that’s not the way it was”.

74 It is clear from this evidence that, firstly, the appellant did not regard himself as being involved in the domestic activities of his wife and, secondly, that in any event his wife ruled the house and he had no reason to believe that after their retirement from the joinery business that position would not remain the same.

75 I am conscious of the restrictions placed upon an appellate court in reversing credit findings of a trial judge. The relevant authorities are cited by the High Court in Fox v Percy (2003) 214 CLR 118. As was noted by McHugh J in that case at 146-147 [90]

“It is a serious mistake to think that anything said in Abalos or Devries necessarily prevents an appellate court from reversing a trial judge’s finding which is based, expressly or inferentially, on demeanour. Those cases recognise – in accordance with a long line of authority – that it may be done. But there must be something that points decisively and not merely persuasively to error on the part of the trial judge in acting on his or her impressions of the witness or witnesses.”

76 In the present case the primary judge did not, at least expressly, rely upon the appellant’s or Matthew’s demeanour in coming to her credibility findings. Rather, she seems to have relied upon the fact, certainly so far as the appellant was concerned, that he was reluctant to make concessions. But even if demeanour inferentially played a part in her findings, it is to be noted, as Gleeson CJ, Gummow and Kirby JJ said in Fox v Percy at 128-129 [30], that

“it is equally true that … other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses.” (citations omitted)

77 Furthermore, it is insufficient for an appellate court “by ritual incantation about witness credibility” to avoid its duty to exercise its judgment both on the facts and the law: Fox v Percy at 128 [29]. As the joint judgment in that case emphasises (at 126-127 [25])

“Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’.” (citations omitted)

78 In the same vein, an appellate court must acknowledge the constraints upon its capacity to disturb the decision of the trial judge encapsulated by Gleeson CJ in Swain v Waverley Municipal Council (2005) 220 CLR 517 at 519-520 [2] in the following passage:

“In the common law system of civil justice, the issues between the parties are determined by the trial process. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal. Most decisions of trial courts are never the subject of appeal. When there is an appeal, the appellate court does not simply re-try the case. Depending on the nature of the appeal provided by statute, courts of appeal act according to established principles by which their functions are constrained. Those principles reflect the primacy of the trial process and the practical limitations upon the capacity of a court which does not itself hear the evidence justly to disturb an outcome at first instance. Trial by jury carries with it significant limitations of that kind.”

79 Again, in Rosenberg v Percival (2001) 205 CLR 434 McHugh J, after referring (at 447-448 [38] and [39]) to passages from the judgments in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, 482-483 which highlighted the advantage enjoyed by the trial judge in hearing and seeing the witness, remarked (at 448 [41]):

151 The appellant's senior counsel also referred to Kuhlewin v Fowke [2000] QSC 404 (Mullins J).

152 It has been clearly established that inheritance by a widow of a family home, and the furniture in the family home, from her husband is not treated as a deduction in calculating damages. This general rule was established in cases where the facts were relatively uncomplicated, the marital relationship was stable, the wife was supported by the husband as sole breadwinner and there were few if any assets other than the matrimonial home. Its underlying basis is the probability or fair certainty that the wife would have enjoyed the practical advantages of use of the matrimonial home if the husband’s life had continued, and the passage of ownership to her has no impact on this. This general rule may not be applicable to all assets which pass to widows, or to other claimants such as dependent children, or to widowers; nor is it a general rule applicable to investments, business assets, or assets other than the matrimonial home and its furniture. In cases other than the passage of the matrimonial home and furniture to the widow, the facts, imponderable as they often are, must be examined as closely as they can be in the circumstances to see whether there are reasons why the prima facie advantage of inheritance to property rights should be brought into account, or should not be brought into account, or should be subjected to some analysis to ascertain the value of the acceleration.

153 In the present case the assets were co-owned (although the exact details of title were not established in relation of the dairy farm), as well as the matrimonial home there were two other houses and also a dairy farm on the farm property, there were other business assets, and the appellant was some eight years older than his wife, and on ordinary life expectancy tables could not have expected ever to have inherited the property. If the facts had been considered on a proper basis, it might well have appeared that the concession made at the trial was inappropriate. However as I said earlier, the present is not an appropriate case for consideration of these principles on appeal; yet a new trial might re-open their consideration.

154 I do not see a new trial, if granted, as likely to produce any result more favourable to the appellant than that against which he has appealed. If contrary to my opinion it were right to accede to the appellant’s case on appeal, a new trial is unlikely to assist him. The respondent does not cross-appeal and has no claim to be given a new trial. In my opinion the Court of Appeal should dismiss the appeal with costs.

**********

06/07/2006 - References to case name "CSR Ltd v Della Maddalene (2006) 80 ALJR 458" replaced with correct spelling "Della Maddalena". - Paragraph(s) Throughout judgment.