Walden v Black

[2007] NSWDC 98

CITATION:	Walden v Black [2007] NSWDC 98
HEARING DATE(S):	26/03/07 - 30/03/07
JUDGMENT DATE:	2 May 2007
JURISDICTION:	Civil
JUDGMENT OF:	Goldring DCJ
DECISION:	Verdict for the plaintiff in the sum of $1,305,306.
CATCHWORDS:	Compensation to Relatives - loss of domestic services performed without payment - accelerated benefits - jointly occupied property
LEGISLATION CITED:	Compensation to Relatives Act 1897 Motor Accidents Compensation Act 1999 Workers' Compensation Act 1987
CASES CITED:	Henry v Perry [1964] VR 174 Henderson v Oswald [1965] WAR 54 Husher v Husher (1999) 197 CLR 138 Cape Distribution Ltd v O'Loughlin [2001] EWCA Civ 178 De Sales v Ingrilli (2002) 212 CLR 338 RTA v Jelfs (1999) NSWCA 179 Singer v Berghouse (1994) 181 CLR 201 Nguyen v Nguyen (1990) 169 CLR 245 Rowe v Scanlan (1969) 1 NSWR 43 Naum v Nominal Defendant (1974) 2 NSWLR 143 Tripodi v Leonello (1982) 31 SASR 9 Targett v Targett (2001) 9 Tas R 234 Gillett v Nominal Defendant (1976) 2 NSWLR 65 Budget Renta-a-Car Systems Pty Ltd v Van der Kemp (1984) 3 NSWLR 303 Wright v Johnston (1980) 23 SASR 198 Horton v Byrne (1956) 30 ALJR 583 Peipman v Turner (1960) [1961] NSWR 252
PARTIES:	Edwin Peter Walden (Plaintiff) Barry Gordon Black (Defendant)
FILE NUMBER(S):	5690 of 2006
COUNSEL:	B. Gross QC with T. Boyd (Plaintiff) K. Rewell SC with B. Smith (Defendant)
SOLICITORS:	Andrew Warren & Associates, Bega (Plaintiff) Curwood & Partners, Sydney (Defendant)

JUDGMENT

Nature of the proceedings

1 These proceedings are to assess the damages to which Edwin Peter Walden (“Peter”) is entitled under the provisions of the Compensation to Relatives Act, on behalf of himself and his son, Matthew Peter Walden (“Matthew”), following the death of their wife and mother (“Janet”) on 27 August 1999. The defendant has admitted liability for the compensation.

2 There is a dispute about the value that should be placed on the life of Janet to Peter and Matthew. There is also a dispute about the extent to which, if any, Peter and Matthew have received “accelerated benefits”, that is, benefits they received as a result of Janet’s death, which they would not otherwise have received.

Statutory requirements

3 The Act sets out no more than the general principles that govern these issues. The relevant parts are:

“3 An action to be maintainable against any person causing death through neglect despite the death of the person injured
(1) Whensoever the death of a person is caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death has been caused under such circumstances as amount in law to a serious indictable offence.
4 By whom and for whom action may be brought
(1) Every such action shall be for the benefit of the spouse , brother, sister, half-brother, half-sister, parent, and child of the person whose death has been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased, and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action is brought, and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties in such shares as the jury by their verdict find and direct.

4 The other issues depend on the findings of fact. I shall set out the precise questions later, as they can be understood better in light of the circumstances of the case.

Factual evidence from Peter and Matthew

5 The factual evidence in this case comes mostly from Matthew and Peter. They were cross-examined closely, but I accept their evidence in so far as it relates to the businesses operated by the family. There are disputes on some of the work done by various family members. In general, I accept Matthew as an honest and credible witness. Peter took great care with his answers to questions, and thought carefully about his answers, so as not to exaggerate or guess. I also accept him as an honest and credible witness. The defendant did not call any evidence to refute any of their statements. Therefore, in general, I accept their evidence on matters of fact. The disputes in this case are largely about the inferences I should draw from those facts.

The family

6 Peter was born on 25 August 1937. At the date of Janet’s death he was 62 He is now 69. Janet was aged 53 (born 9 September 1945) at the date of her death and if she had survived would now have been aged 61. They were married on 24 February 1968 (when he was 30 and she was 22), and lived together for 31 years as husband and wife, the last 30 years of which they lived on a dairy farm called “Parkview” at Cooper’s Gully, just north of Bega. They had 3 adult children, but only Matthew, the eldest, is alleged to have suffered loss as a result of Janet’s death. He was aged 28 (born 22 March 1971) at the date of Janet’s death and is now aged 36. The 2 daughters, Katrina and Carmen, were both living and working in Sydney at the time of Janet’s death and as at date of trial. No claim is made in respect of either.

7 The family owned, directly or indirectly, a dairy farm, some holiday units at Tathra, and all the shares in Bega Joinery Pty Limited (“Bega Joinery”). For tax purposes, there were three different businesses, organised differently, but as is often the case where accountants give advise to small businesses for tax purposes, the legal niceties of the structure of the business organisations are ignored by the owners. Peter’s evidence was that the family pooled the income from all sources, and applied it as a single fund. The effect of this, as will be demonstrated, is that both before and after Janet’s death, the joinery and holiday units supported the farm financially.

8 Janet, Peter and Matthew lived (and Peter and Matthew continue to live) at Parkview, which is an operating 66-hectare dairy farm. The dairy farm business was a complex which also covered 3 other properties in the general region, a 100 acre property (belonging to Matthew since 1997) approximately 5 kilometres from the main property, on which heifers were held (the “Rixon” property), 80 acres at Cobargo, to which they sometimes sent cows, and 18 acres near Bega from which they obtained hay to feed the animals. Matthew lived in the same house as Peter and Janet, and was fully engaged until late 2004, in working on the dairy farm and related properties. Janet also did substantial work on the dairy farm and related properties.

9 Peter was born and educated in Bega, leaving school at 15 with the Intermediate Certificate. He became an apprentice to his father in the family joinery business in Bega. He completed his apprenticeship as a joiner at 21 or 22 and in about 1966 obtained a financial interest in the joinery business, known as Bega Joinery, conducted by his father, and now operating at 3 West Street, Bega. Peter was and remains in reasonable health and not limited in his physical capacity.

10 Peter and Janet had a close relationship during their marriage. Peter said that he had no prospects of remarriage or any other relationship and that he is reconciled to a life where he did not take on another partner.

11 Janet was born and educated in Bega, and lived all her life on the farm, where Peter and she were living at the time of her death, and which had been in her family since about 1896. After leaving school at 17, Janet successfully completed a bookkeeping and secretarial course at TAFE and also a dressmaking course at TAFE. She was able to make her own clothes and those of her children, as she was skilled at dressmaking. From her early childhood to her death she knew every aspect of the property, the management of the cattle, especially the younger stock, and the other business of the property. She was an accredited equestrian instructor and was a very good horsewoman.

12 Janet was in excellent physical and emotional health before her death.

13 Janet and her father, Ralley Hetherington, were and always had been very close. In the years immediately before Janet’s death her father was aged and totally blind. He lived in a cottage on the Parkview property, and had a full time carer and a district nurse, to take care of his needs. In the years immediately before her death, Janet did not devote much time to caring for her father. Her brother, Ralph Hetherington, who did not live on Parkview, managed Ralley’s affairs after 1997, though before that, Janet oversaw them and participated in the day-to-day care of her father.

The dairy farm business

14 The dairy farm property (the main farm and Rixon), stretched over 66 hectares, some of it a considerable distance into the peaks of the ranges around Bega, and working it involved going as far as 2 miles away from the homestead on the farm property. Peter and Matthew said that riding a horse was an important part of operating the property to attend to stock and carry out inspections. Janet did this. Peter was not a horseperson. Matthew rode horses when young but used a quad bike or other vehicle on the property, rather than a horse. He said that it was not possible to access the property fully or attend to the needs of the stock fully with a vehicle. The advantage of being able to use a horse, as Janet did, was that it kept the cattle quieter and it at most times allowed closer access to the cattle for observation. It also allowed inspection of water sources and dealing with various problems on the property such as detection of eye cancer in animals and growth of weeds.

15 From about 1993 until Janet’s death and since that time, Matthew worked on the family farm and looked after the dairy farm business as the dairyman. Since Janet’s death he ran the dairy farm and had nearly total control of the farm until November 2004.

16 Janet was very knowledgeable about dairy cattle. Janet placed great importance on the care of the animals. She was involved in organisations concerned with dairy cattle or their production, e.g. the Holstein Friesian Association, which is involved in showing cattle. Janet was in a women’s group called Women in Dairy, which had monthly meetings about 30 kilometres north of Bega. This group dealt with various issues within the dairy industry and each meeting would last probably 2 hours. Janet attended most of those meetings. Apart from that organisation, Janet attended the Bega Co-operative Society meetings, (sometimes with Peter, Matthew or both) which were held quarterly, plus an annual general meeting. Those meetings lasted 2 to 3 hours. Janet attended meetings of the Holstein Friesian Association, which were held quarterly and normally lasted 2 hours, in Bega. From time to time Janet attended meetings of the Dairy Farmers Association, which was an association that most dairy farmers belong to. Those various dairy industry organisations would constantly provide literature or publications and Janet normally went through them.

17 Peter and Janet had purchased the Parkview property from Janet’s father. There were 3 houses on the dairy farm. One of them was the original old Hetherington family home (which was rented), another was the home, which Peter built on the property as a home for himself and Janet, and the cottage where Ralley Hetherington was living.

18 Janet and Peter were partners in the family dairy farm, under the name of “EP&JM Walden”.

The Bega Joinery business

19 Until Janet died, Bega Joinery had 2 shareholders and directors, Peter and Janet. It was a family company controlled by Peter and Janet. Both Peter and Janet were recorded as employees of the company, and Janet was company secretary. Janet worked in that business Monday to Friday for approximately 4 hours per day i.e. 20 hours per week. She would arrive at the office/showroom of Bega Joinery at approximately 11.00am, leaving at approximately 3.00pm, i.e. 4 hours daily, including her lunch break, Monday to Friday. She did all the secretarial and typing work either at the office or at home, where she had a separate office and typewriter. The work also included invoicing, quotations, looking after clients’ needs, ordering materials, any necessary banking and everything that was associated with running an office. Janet was the financial manager for all the family businesses (i.e. Bega Joinery, the farm and the Tathra rental property). Peter and Matthew both considered she was quite competent in her skills and financial management for what resources she had.

20 Janet would do the actual cleaning of the office and showroom at Bega Joinery. It was her responsibility to do all the banking and matters in relation to the receipt of money and payment of money.

The income from Bega Joinery

21 On the books Janet and Peter both drew wages from Bega Joinery on a weekly basis, and this was shown in the financial statements. That was a book entry made retrospectively by the accountant at the end of the financial year. No separate payments were actually made to either Peter or Janet. The money was paid in the form of a cheque signed by Peter each week and was used for the benefit of the whole family. At the time of Janet’s death, the only persons who received benefit from that payment from Bega Joinery were Peter, Janet and Matthew.

22 Janet had no skills or practice as a joiner or carpenter. When the ordering and transporting of materials was done, Peter gave Janet the requirements of material for particular jobs and she would complete the ordering, including dealing with carriers and invoicing. Peter sometimes, but not always, would go to the location and install the manufactured goods himself, but he always did the liaising with other trades to get access and to fit in with the overall building project, and to allow Bega Joinery to carry out the installation.

23 Peter had no definite intentions as to when he would have retired as a joiner or stopped operating the Bega Joinery business. Peter does not recall he and Janet discussing that matter. He did say at one stage after Janet’s death, that he intended to operate the joinery business until June 2004, when he intended to retire, but, in fact, he has continued to operate the joinery business, which plainly keeps him active and provides stimulation, interest and contact with others, as well as financial return. These proceedings were conduct on the basis that he would have retired at the end of June 2004.

24 Bega Joinery rented out their previous premises to a tenant, Repco, which paid about $36 000 per annum rent. This sum came into Bega Joinery and then was used as working capital, very little of that being taken in the way of profits, and any balance was put over to the farm itself.

Janet’s work on the dairy farm

25 Peter and Matthew had both observed Janet’s activities for many years. Matthew said that Janet very rarely missed working days. Their evidence was that Janet rose around 6.30am. She then prepared breakfast, did household chores, put on a wash (which was partly dairy – the milk filters, which had to be washed daily - and partly domestic), and discussed with Peter her program for the day. Janet’s dairy work involved her leaving the house at approximately 7.30am each day, 7 days each week, although her times did vary, and she normally put in 1.5 to 2 hours work on the dairy farm during the morning and possibly 2 to 2.5 hours each afternoon.

26 Between 7.30 – 8.00 am and about 9.30 am, she would be in the dairy, attending to the feeding and health requirements of the calves and young stock. These are things that are ordinarily done on a dairy farm. She also moved stock as required and helped with the wash-up process at the dairy. The dairy produces food so it is important that the wash-up is done correctly. During the week, Wednesday was vet’s day when pregnancy testing and general health checks of the herd were done, with Janet participating.

27 At the time of Janet’s death there were approximately 200 head of dairy cattle on the dairy farm, approximately 100-110 in milk, the balance of the stock being young or dry stock. Cows are usually in milk for 300 days after calving.

28 Once a month, both morning and evening, Janet managed the herd recording, a process where the milk of each cow is sampled, and marked with the cow’s herd number. The samples were normally sent to Armidale, to the University Laboratories, for testing. Matthew kept a record of the status of all the animals in the dairy on a board or wheel (called a herd wheel, photos of which are in evidence), which is marked from day to day. Janet made entries in registers, and kept various documents and records in relation to the operation of the dairy farm.

29 The process of herd testing identifies the highest producers of butterfat and protein. Good dairy breeders breed from the highest producing animals. Over time they develop a high producing and healthy herd. Cows identified as low producers are culled (either sold or slaughtered). Herd testing maximises productivity of the cows and helps to maintain the reputation, prestige and value of the herd and the enterprise. It helps determine how much to feed each cow, which cows are performing poorly and should be culled, and breeding decisions. Matthew said that since the absence of herd recording following Janet’s death, there had been milk quality problems; it had not been possible to make appropriate breeding decisions; and overall, the dairy herd had declined in quality.

30 Peter and Janet operated a registered Holstein Stud, so each calf was photographed and identified to the Friesian-Holstein Society. In time the society sent back the registration certificate, which is an important part of the farm’s records. A precise record was kept of each animal’s pedigree and breeding. To operate a dairy stud successfully it is very important to perform the registration process. Janet had a book, which she filled out for registration of stock. When a calf was born, she would photograph it, and fill out a form. These were sent away to the Holstein Friesian Association. Apart from this, she had various communications with that organisation about registration. This took time. Since Janet’s death Matthew has not had time to keep up the registration work and that had an adverse effect on the value of the herd. Buyers of stock tend to prefer registered stock. Any calves born on the property after Janet’s death were not registered at all.

31 Since Janet’s death the process of keeping records has not been kept up, because it requires several people to do the herd recording, and that was no longer possible. Matthew no longer records the birth of or registers the calves. The cows that are not performing so well cannot be identified and are not culled. The herd that Peter and Matthew had from Janet’s death until November 2004 became downgraded and of less value, both for sale and for milk production. This situation is a consequence of Janet’s death, because of the loss of those extra services that she performed before her death.

32 Before her death Janet regularly checked the fence lines to make sure the fences were intact and in good condition, and that there were no weeds in the paddocks, usually in conjunction with her stock work on the horse.

33 Matthew said that before Janet’s death the business activity statement system had not come in, but she looked after the various accounts and bills, ordering of feed, organising for visits by vets, organising grain and fodder which would have to be harvested and stored as well as the movement of grain or fodder from where it was cut. If stock had to be transported for any purpose Janet would organise that. She would organise the sale and purchase of stock from time to time. Janet would normally attend sales, which were held mostly in Nowra or Mittagong. Janet would arrange the provision of bulls to service the cows and would do all the bookwork in relation to dealing with contractors or employees, including any insurance and superannuation.

34 On Sundays she would be up as usual at 6.30am, would probably do a wash, the housework and prepare breakfast, and then go to the dairy at 7.30am. Sundays would give her more time to move stock to back paddocks (e.g. to the 100 acres that they have some distance from the main farm) and to inspect the property. If she was doing work on the farm, she would do the same work as usual, but would possibly spend only 2 hours at the dairy. If stock did not have to be moved, she would devote her day to the vegetable garden or the flower garden, lawns - she loved her garden. They had a large vegetable garden and also an orchard where fruit grew. On Sunday afternoon she would do 2 to 2½ hours at the dairy.

35 The Holstein-Friesian cow can suffer if it is excessively exposed to sunlight, because it is unusually susceptible to photosynthesis, which is a type of skin cancer. Janet planted trees extensively all over the property, mainly for shade for the animals. She propagated seedlings and then grew them up and planted them out. She planted something like 250 trees on the property, and this was an ongoing process.

36 Before Janet's death Peter and Janet fattened their own beef, getting “portable butchers” to butcher the beasts on the farm. They did buy a little meat for the table from butchers and supermarkets. Before Janet's death, most meat, fruit and vegetables was produced on the property.

37 There was some dispute over her actual hours of work on the dairy farm, and Matthew was shown a statement in which he estimated her working hours at 3-4 hours per day. I find, for the purposes of these proceedings, that her hours were within this range, but very much towards the upper end, so that I accept that her loss should be calculated on the basis that she worked 27 hours per week in the dairy business, on average.

Rental properties at Tathra

38 The 6 holiday units at Tathra were known as “Mogareeka Court”. They were two adjacent blocks of units. A family trust, the Edwin Walden Family Trust, owned and rented out the units, through a trustee, Pynwatch Pty Limited. Before her death, Janet looked after the management of those rental premises. Her tasks included cleaning and laundering, with occasional help at peak periods such as holiday time (Christmas and Easter). She also did some work in the gardens there. The units were let on short-term holiday rentals. Peter sometimes went with Janet to the Tathra holiday units in order to check any maintenance problems and to move the garbage out on garbage nights. Peter or Janet would bring the garbage bins back in the next day. It was therefore necessary for Janet to make at least 2 trips a week from Bega to Tathra and back, which takes 20 minutes each way, a total of 40 minutes. Saturday was the traditional changeover time for the holiday tenants and Janet would go to Tathra on that day each week to attend to the changeover tasks, sometimes with Peter. Her activities at the Tathra units mainly involved cleaning the units and preparing them for the new tenants coming in. After finishing cleaning she would sometimes work on the lawns and gardens. They had tenants every month of the year although there would be periods when the units were not occupied. Janet spent on average 7 hours a week on those activities at Tathra. Peter admitted that an agent was sometimes involved in letting the units before Janet died, but Janet did most of the letting.

39 On Saturdays Janet would be in the dairy initially and then would go to Tathra to attend to the rental properties. Before she went down to Tathra she would do the household work, if time allowed. She would normally leave to be in Tathra by about 9.30am. After she got back from Tathra, which could vary depending on when tenants moved in or what time she had to wait to meet them, she would arrive home usually around 4.00pm for milking. She would then be involved with milking or other herd or farm work from 4.30pm for around 2 to 2.5 hours.

Janet’s domestic duties

40 Before her death Janet provided domestic services for Peter and Matthew in the home. The family home has 2 lounge rooms, 2 dining rooms, a sitting room, 4 bedrooms, one main bathroom, a large laundry with separate shower and toilet, 3 patios and 2 offices (a sewing room office and a separate office). The floors within the family home were polished timber, which required more work than carpeted floors. Janet cleaned the house first thing virtually every morning by sweeping those floors or vacuuming them. Janet did all the washing, cooking, cleaning, ironing, dusting and mopping of floors. Janet was an excellent cook. Janet did all of the shopping for the house. Nobody else provided any domestic services within the home. Peter and Janet did not hire domestic help before the accident and Janet did all the domestic work herself. There is a dispute about the time Janet spent doing domestic work, before her death. Peter’s case is that Janet would have spent approximately 25 hours a week providing domestic services for himself and Matthew (based on average of 7 days each week at 3 hours a day plus 4 hours on the lawns and gardens). The defendant’s case is that this took no more than 19 hours each week, including gardening.

41 The house where the family lived was within the Parkview property on approximately half an acre, which was all either lawn or landscaped. This block was separated from the rest of the farm property (which belonged to Janet’s father at the time) when Peter and Janet built their house. Peter and Janet performed the joint work of looking after the lawns and it required both of them to do it.

42 Janet ran her vegetable garden according to season, but was busy virtually 12 months of the year, growing things in season, with the vegetables being quality vegetables (as she was a skilled gardener). The garden and orchard provided most of the fruit and vegetables consumed by the family. She had several vegetable gardens but in total the vegetable garden was about 6m x 4m. Janet looked after all the orchard, which grew a number of citrus trees, as well as apples and stone fruits such as peaches, cherries and nectarines. Peter and Janet initially planted the fruit trees together, and then Peter did the pruning but Janet looked after spraying the trees from season to season, as she was the skilled gardener and Peter did not have many skills in relation to gardening. Since Janet's death the fruit trees have survived, but do not receive the same care, and Peter does not get as much fruit as he used to before Janet died.

43 Peter and Janet also had flower gardens, which were all planted by Janet. It was her garden. She took pride in it and it was quite presentable. Since Janet's death it is very much diminished.

Management and bookkeeping

44 Janet was the money manager and looked after money matters within the home as well as all the businesses. Neither Peter nor Matthew had any role at all in this.

45 On Mondays to Fridays, Janet ordinarily returned from the dairy to the house at about 9.30am, to do office work for the dairy, the Tathra units, the household and Bega Joinery, then go to Tathra (on days when she went there), and then do the banking, the post and arrive at Bega Joinery about 11.00am. Her activities between 9.30am and 11.00am would vary from day to day depending on what had to be done.

Work at Bega Joinery

46 From 11.00am until about 3.00pm or so she would work at the Bega Joinery. The production side of the factory is approximately 18 metres x 36 metres and the showroom/office, which Janet looked after, was about 8 metres x 10 metres. The business offered a quotation service and although it was Peter’s responsibility to collate a material list for the quotation process, it was Janet’s responsibility to do the costing and the formulation of the quotation. Janet managed all the financial records of the business.

Afternoon/evening activities

47 Janet would finish at Bega Joinery somewhere between 3.00pm and 3.30pm. Then she would shop for the house and other items, before returning home by about 4.00pm-4.30pm. She would then part prepare dinner for the night. If it was a hot dinner she would put that into the oven. Then she would change her clothes and go to the dairy. She would then be away from the home, either at the dairy or involved in dairying type work or other work with calves or cows or the herd itself for about 2-2.5 hours.

48 Peter and Janet would have dinner, after he arrived home about 6.30pm or 7.00pm. Matthew sometimes joined them, but mostly arrived home later. After dinner Janet would do typing and bookwork at home; she would take care of herd records, registration and other things in relation to the farm business. She would finish around 10.00pm at which time they would retire to bed.

49 On the evidence presented, I find that, before her death, Janet did the following:

· She was the sole housekeeper, homemaker, laundress and cook for the family. Neither Peter nor Matthew did any housework, cleaning, shopping, washing or laundering.

· She did all the bookkeeping and financial management for the household, the dairy farm, the rental units at Tathra and Bega Joinery.

· She was the principal gardener, producing a significant part of the household’s consumption of vegetables, fruit and flowers.

· She was an active participant in the dairying business, managing the breeding operations and the raising of young cattle, movement of stock, and maintenance of the farm, as well as assisting with milking and cleaning the dairy.

· She managed the Tathra units virtually single-handedly.

· She spent some time cleaning and doing office and sales-related work for Bega Joinery.

50 Although it can only be an approximation, I find that the average weekly time she spent on these activities was as follows:

· Housekeeping etc (not including gardening, but including financial management and bill payment) – slightly less than 3 hours per day or 20 hours per week;

· Gardening – 3 hours per week.

· Tathra Units – 1 hour per day or 7 hours per week, including travel to and from Tathra;

· Bega Joinery – 22 hours per week (including 2 hours per week at home)

· Dairy farm, including clerical and bookkeeping work, attendance at meetings, and management of the property - 27 hours per week.

51 This totals 79 hours per week. It is a very long period for any person to work, but I am satisfied to the requisite standard that Janet was exceptional and worked extremely hard each day.

The situation after Janet’s death.

52 The defendant’s position is as follows. The defendant admits a breach of duty of care resulting in Janet’s death, but denies that there is an entitlement to damages. It says that Peter is entitled to compensation for the loss of pecuniary benefits suffered by himself and Matthew as a consequence of the death of Janet. He is not, the defendant submits, entitled to damages for the loss of Janet’s services

· to Bega Joinery as if Peter was the company.

· to Pynwatch or the trust as if Peter was the company or the trust.

· to the commercial dairy farming partnership as if he was the partnership, rather than one partner in the partnership, nor as if the partnership was merely an extension of the private non commercial ownership of assets by Peter and Janet as husband and wife.

53 It says also that Peter is not entitled to treat the commercial farm property as if it were the family house merely because the family house was on a contiguous property. Peter and Janet held two different, although apparently contiguous properties. One of those was “Parkview” via Bega, which was owned by the dairy farm partnership, and over which there was a tax deductible bank loan to the Commonwealth Bank of $205,979, (on which interest of $27,330 was paid and claimed in the 1999 financial year), and a mortgage to Janet’s father of $120,000. The other was the family home at 14338 Princes Highway, Brogo, which they owned equally as husband and wife, and which was not a commercial enterprise, nor the property of the partnership.

54 The defendant concedes that the principles of acceleration do not apply to the family home, but submits that they do apply to all other property.

55 Before considering these arguments, it is necessary to consider the evidence and make findings of fact about the changes that occurred after Janet’s death and findings of law about some of the defendant’s arguments.

The dairy farm

56 Matthew continued to operate the farm until November 2004, but had some paid assistance from time to time. Peter continues to own the farm. At one period after his mother’s death, Matthew worked continually for 12 months, 7 days a week, with some minimal paid assistance. It was difficult for him to continue to meet the requirements of the farm work. Matthew said that since the abandonment of herd recording following Janet’s death, there had been milk quality problems and it was not possible to make appropriate breeding decisions. Overall, the dairy herd has declined in quality. Matthew said that he had now taken over the task of bookkeeping. Janet used to do this using a ledger system by hand, but Matthew now uses a computer. He was not previously involved in bookkeeping.

57 Before Janet’s death the wage books record that Matthew was paid for an 8-hour day, but he normally worked a 9-hour day. On average, since Janet’s death, his hours have increased to 12 hours or more.

58 Matthew said that other things have slipped since Janet’s death; the general maintenance of the farm, fences and weed control, maintenance of machinery. He attended to the maintenance of fences and machinery before Janet’s death, but his capacity to see to the fences and machinery have deteriorated since Janet’s death, as he found that the extra time he had to spend on the duties that Janet used to do did not allow him enough time to do those jobs to the way they should be done. The rearing of the calves was not done to the same high standard set by Janet. There was a lot more sickness among the stock.

59 Matthew said that after her mother’s death, apart from paid assistance from Bernie Mossler, who was normally there for 2 days a week, he has had other paid help, at times, for up to 2 days a week. However, at times he had no paid help and had to work for 7 days each week. He has done this for 12 months at a time. This had an adverse effect on both himself and the condition of the farm and the stock.

60 Peter has always intended that Matthew would continue to operate the farm into the future and that he should eventually take over as the owner of the farm and continue the family farming tradition. Peter was proud of the farm and of the fact that they retained it. It had been part of Janet’s life. All the debts had been paid.

61 In November 2004, the dairy farm was leased for 3 years, with a 3-year option. The herd, which had been seriously degraded, was sold as a general dairy herd over a period. It was not sold as a pedigree breeding herd, which it had been at the time of Janet’s death. The partnership retained the crop land near Bega and Matthew continues to work this. However Peter and Matthew intend, either at the end of the lease or of the option period, to resume the conduct of the dairy farm themselves.

The rental properties

62 Following Janet’s death, in 2001, the rental properties were sold by the trustees. The trust was a discretionary trust, with the potential beneficiaries being Peter, Janet and their three children. The net proceeds from the sale of the units went to Peter to enable him to pay off debts on the farm, (debts to Ralley Hetherington and the bank) and the balance was used by Peter to purchase additional crop-growing land to grow fodder and to upgrade machinery for the farm.

63 Since November 2004, Matthew has worked as a faming contractor, harvesting and baling crops for other farmers and doing similar work. He uses the machinery purchased or leased since his mother’s death for this purpose, and keeps it at Parkview.

Clerical work at Bega Joinery

64 Following Janet’s death, Peter continued with the joinery business. Marie Mossler (the wife of Bernie, who worked in the dairy) carried out secretarial and support work there for some years. She was not paid wages by Bega Joinery. She was studying at University. After Janet’s death she worked in the joinery business 2 days each week and was available for additional periods. In return for her work, she had the use of equipment such as computers and scanners, and used the office as a study base where she could be contactable while she waited to pick up her five children from various schools or pre-schools in the Bega before taking them home, 18 kms out of Bega. A paid employee, who works 2 days each week, has since replaced her.

Paid domestic work by Joan Smith and Carol Wiley

65 Since Janet's death Peter has had Joan Smith (Monday) and Carol Wiley (Thursday) in to perform household or cleaning or cooking duties on a regular basis, 4 hours a day, 2 days a week (1 day each). Joan Smith did the cleaning for 4 hours, which was not sufficient to do everything that Janet would have done and was not to the same standard. Carol Wiley did cooking, some at Peter’s house, some at her own home. Peter said that if no food was left he would barbecue something for himself. He did not like take-away food, but Matthew ate this sometimes. Peter paid these women $10 per hour each, until 2006, this being the amount they had suggested, but in 2006 he decided that this was not enough, and without being asked, increased the rate to $20 per hour each. Peter knew both women before Janet's death.

66 Since Janet's death the vegetable garden had been left to go back to grass and weeds and there was no vegetable garden. Peter and Matthew had not been able to sustain the vegetable garden. The flower garden and orchard also deteriorated, though Peter was able to keep up the lawns.

What losses have Peter and Matthew suffered as a result of Janet’s death?

Bega Joinery

67 The plaintiff's argument is basically that I should look to the loss to the family unit resulting from Janet's death, rather than looking at the individual businesses. This is because while Janet was alive, the income from the joinery, the dairy farm and the rental units were all, in effect, pooled, and used in common by the family. On the other hand, the defendant argues that I should look at each business unit separately. I am not prepared to accept either of these contentions in its entirety. As I shall explain, I regard Bega Joinery, a company, as a separate legal person. The loss suffered by Peter and Matthew as a result of Janet's death can only be measured, in my view, by the loss of benefits, particularly wages, which Janet received from this company. Any loss that the company may have suffered as a result of the death is not a loss that is compensable for Peter or Matthew under the Compensation to Relatives Act. However, the legal form chosen for the other two businesses, the rental flats and the dairy farm, did not involve a separate legal person. I shall consider these matters in detail.

68 Bega Joinery is a legal person separate from any individual. Matthew was not a shareholder of Bega Joinery. He cannot be said to have suffered a loss because Bega Joinery has lost the services of Janet (as opposed to the benefit of her wages coming into the household). Peter might have been said to have suffered a loss through the diminution of his interest in the company, if it could be proved, on the balance of probabilities that the value of his interest in Bega Joinery was reduced, and even if this could be shown, the loss was his rather than the company’s. He became the owner of her shares in the company, which he would not otherwise have received, and this must be set off against any loss to him.

69 Peter submits that the financial benefits which Janet provided to him and Matthew, from her work in Bega Joinery, whether they are measured in cash or kind, flowed from the matrimonial and family relationship: Henry v Perry [1964] VR 174. Janet earned money and made it available to the pool of family funds from which Peter and Matthew benefited: Henderson v Oswald [1965] WAR 54. I treat this submission as though it related only to the wages, which Janet earned. It cannot relate to other interests.

70 Further, he submits, it does not matter that the business was conducted through a family company rather than as a partnership, or where Peter was a sole trader. The income attributed to Janet in the books and records of account of Bega Joinery was part of the overall family income from which Peter and Matthew derived a benefit. I do not accept this submission. The form in which a person or family chooses to carry on business cannot be disregarded. I do not think Husher v Husher (1999) 197 CLR 138 applies in these circumstances: it is concerned with the diminished earning capacity of a plaintiff who is injured, and does not, in my view, apply to cases claiming damages under the Compensation to Relatives Act. The corporate form is usually chosen for tax and other advantages for the owners of the business. If they opt for the benefits, they must accept the detriments as well.

71 Wages, even though notional, are entirely different. It is clear that Peter and Matthew did lose the benefit of Janet’s wages from Bega Joinery, and the spouse and children of any deceased are entitled to compensation for the loss of wages of a deceased person in such circumstances. Peter’s income was increased after her death to reflect in part the total of the pre-accident income of both Peter and Janet.

72 The portion of her wages Janet spent on herself must be deducted. Her own income (wages, and potentially sometimes distributions) was more than sufficient to meet her own personal living expenses, estimated without challenge in cross-examination, as $150 per week. Her wages from Bega Joinery would have fully met these expenses until June 2004, but not after that date, when Peter and Janet would have retired.

73 The defendant says the pecuniary loss arising from Janet’s death in relation to her earnings from her employment by Bega Joinery is the difference between the total salaries of Peter and Janet prior to death ($795 per week), and Peter’s salary from Bega Joinery post death (average $700), that is, a sum of $95 multiplied by 31.2% for 4.5 years i.e $13 338. I do not accept this submission, as I find that Peter in his own right has lost no income from Bega Joinery as a result of Janet’s death.

74 Matthew has clearly lost the benefit of the wages, with no corresponding gain, as a result of his mother’s death. Peter has lost the benefit of wages, but as a result of her death he has inherited her shares in the company, and has also taken advantage of the situation to increase his own wage to an amount roughly twice the amount it was before Janet died. When such advancement is taken into account, Peter has suffered no compensable loss in relation to her earnings from Bega Joinery as a result of Janet’s death.

75 The amount of compensation due to Peter (in this case on behalf of Matthew, rather than on his own account) is $16 369. This sum is calculated on the basis of one third of Janet’s weekly wage, ($397.13) less $150 per week i.e. $247 per week, $82.30 per week for 4.5 years less 15% for vicissitudes

The Tathra Units

76 The defendant argues that the Tathra units would have been sold at or about the same time as they were in fact sold. It concedes a loss of financial benefit of income from the Tathra units for the period until the sale of the net of tax figure proposed by Mr Ivey, viz $3,800.

77 Peter claims, in relation to the Tathra units, that Janet performed most of the work associated with the management of the units, and I accept this as fact. He then argues, “Where the deceased performed most of the work, but shared the profits equally with the survivor, it is likely that the Court will take the view that most of the survivor’s share is derived from the relationship” (Luntz, paragraph 9.2.14 - see also footnote 121: “The death of the active partner may deprive the survivor of more than the survivor’s own share of the profits: cf Husher v Husher (1999) 197 CLR 138).” As I have stated elsewhere, I do not regard that case as having any application to a claim under the Compensation to Relatives Act. The loss to the family is measured by the loss of rental income from the period from Janet’s death to the sale of the units.

78 The Defendant did not seriously argue that the claim is less because the letting of the units was seasonal or an agent was employed in relation to some of the lettings.

79 The value of Janet’s work in relation to the units had economic value. If not done by her, such work would have been paid for through someone else doing it. To this extent there was a saving, which was a loss sustained by the family. Moreover, the fact that managing agents were appointed at some stages is irrelevant because Janet always did most of the work and did not rely upon managing agents to achieve a maximum rental return on the units and to maintain the units in an attractive manner for letting. The managing agents did not provide cleaning services and it can be assumed cleaning would be an extra cost to the lessor client.

80 The defendant suggested that Peter and Janet were trying to sell the units before her death, and Peter conceded this. The reason is unclear. It remains a fact that they continued to own (through the trust) and manage the units. Even if the units were on the market, the trust still had to seek the best return from them, by cleaning and prompt lettings on the units, while they remained an asset, which was of economic value to the family. A superior rental history and a neater, well-maintained set of units were more likely to attract a proper and satisfactory sale price, if a sale occurred. Her work, therefore, still had value when measured for this purpose, even if the units, or some of them, were vacant from time to time.

81 The defendant does not seriously dispute that the claim should succeed to the extent of $3,800.00, being the after-tax value of the income earned in the period between Janet's death and the sale. I accept that contention.

The Dairy Farm

82 There can be no question the dairy farm was the centre of Janet’s life, rather than an unwanted burden, and that she would have continued to provide services, which she had provided throughout her married life. She had grown up on the property and obviously had a heavy emotional and financial investment in maintaining the property and assisting Peter and Matthew. I am satisfied on the balance of probabilities, as I have said, that Janet’s weekly average hours in the dairy farm were in the order of 27 hours. The loss is, in my opinion, not to be measured solely in terms of hours, but also in terms of the quality of her contribution. It was her contribution that enabled the operation to be run as a pedigree Holstein/Friesian breeding establishment, as well as a quality dairy operation, albeit not a highly profitable one.

83 Another factor in the loss is the sentimental or emotional ties that the family had to the farm. The evidence established beyond doubt that the Walden family were prepared to carry on the dairy farm, not because it was profitable, but because they considered it to be part of the family heritage, bought from Ralley and to be passed on, in time, to Matthew.

84 I find that the loss of Janet’s contribution was a major factor leading first, to the downgrading of the herd and the abandonment of the registration and breeding of pedigree calves, and ultimately to the cessation of dairy work by the Waldens and the leasing of the dairy farm for 3 years with an option to lease it for a further 3 years. The defendant argues that this loss was not, in fact a loss, as the tax returns show that the income to the partnership from the lease exceeded the earnings of the dairy farm in most recent years. This contention cannot be maintained. It is quite clear that the fact that the dairy herd degenerated from a pedigree herd to a normal herd meant that there was a significant diminution in its resale value. Even if the defendant’s other contention is correct, the loss on the sale of the dairy herd must have a significant monetary value, and it is clearly a direct consequence of Janet’s death.

85 The family has also suffered a loss, because the dairy farm business has ceased. In this respect, the English case of Cape Distribution Ltd v O’Loughlin [2001] EWCA Civ 178 is in point, esp. per Judge LJ at [23]. Janet earned little, if anything from the dairy farm. It did not make profits. Yet the loss of her services was vital to the continued operation and potential development of the dairy farm. This activity was significant to the family unit. It is clear that in some years its profit was small and that in some years it made a loss. It is also clear that the time of Janet's death was a period during which the dairy industry in New South Wales was significantly restructured and deregulated. Both accountants who gave evidence agreed that this deregulation affected the profitability, and even the viability, of all dairy businesses in New South Wales. Financial loss is not the only loss to be compensated under the Act. The common law has always recognised that loss of enjoyment and amenities of life is something that can be compensated, although money does not provide perfect compensation. The fact that the family dairy business, which had been carried on by the Hetherington and Walden families for over 100 years, was no longer viable, is highly relevant. I find that if Janet had not died when she did, the family would have continued to operate, and possibly expand, the dairy further and that Janet would have continued to play an important role in it. Matthew’s evidence was that he agreed to lease the dairy because he could not cope with the work without his mother’s assistance. I accept that. I find that the fact that she was unable to contribute her services to the dairy farm was a significant, if not the dominant, factor in the decision that Matthew should cease working the farm and that it should be leased. I accept that Peter and Matthew intend to invest in the farm so that it can be expanded to the point where it becomes economically viable. Matthew is an experienced dairyman and I accept his opinion, that a more heavily capitalised operation could survive as a dairy farm, although as capitalised at the date of Janet's death it could not. Although Peter is not an experienced dairyman, he is a small business owner of long experience, and would understand the importance of maintaining the economic viability of any business operation. It is clear that before Janet's death, the family was using income generated from other business activities to support themselves, and in that sense, to subsidise the dairy business. They chose to do so because of the sentimental or emotional importance of the dairy farm to them. It does not necessarily follow, that had Janet survived, the dairy business would not have become more profitable. It is really irrelevant to these proceedings whether or not it did.

86 There was no reasonable expectation of any change in the family’s routine. Peter and Janet had been married for 31 years. Throughout the marriage Janet looked after her husband and children. When they retired from Bega Joinery business and sold the Tathra units Janet would have had more time to devote to her husband and Matthew and much more time to devote to farm activities. Janet’s attachment to the dairy farm was such that her work would not have reduced below 27 hours per week during Peter’s life.

87 It is difficult to quantify this loss. The best I can do is to award a sum based on the loss of Janet's services and their replacement by a skilled farm worker at the rate suggested by Mr Ivey ($37 per hour). He is an accountant with great experience in rural valuation, and I accept that he is in the best position of all the experts to state the going rate for rural workers/managers. The amount is (past 425 weeks, 27 hours per week, at $37 per hour, $424 575; future – life of Peter, multiplier 555, $471 278; less 15% for vicissitudes) total $895 853.

Domestic work and gardening

88 As Peter grew older, he could require more rather than less care and assistance, he being 8 years older than Janet.

89 As Gleeson CJ stated in De Sales v Ingrilli (2002) 212 CLR 338, 342:

“With an ageing population the value of care provided by one spouse to another may be of increasing importance, and it may be costly to replace.”

90 Further, Mason P stated in RTA v Jelfs (1999) NSWCA 179 (para 32):

“... it is not self-evident that a wife would spend less time looking after her husband as they both grew older. While her capacities would undoubtedly diminish with time, so too would his. Life long experiences of sacrificial service by one partner to another are unlikely to be jettisoned except under very pressing supervening incapacity. It is also possible that the hours spent by a wife looking after her husband could increase rather than diminish over time”.

91 Gaudron J has referred to the “tendency of the Courts to overlook or undervalue women’s work”: Singer v Berghouse (1994) 181 CLR 201, 228. The Australian Law Reform Commission has noted that such under-valuation particularly occurs in relation to unpaid work by farm women: Australian Law Reform Commission, Equality before the Law: Justice for Women, ALRC 69 (1994), Part 11, “Women and Unpaid Work: Farm Women - A case study”.

92 The Defendant may argue that the damages should be reduced to have regard to the fact that Peter and Matthew had the ability to carry out tasks carried out previously by Janet. Peter and Matthew have undoubtedly taken up some of the services carried out by Janet, but that is only because of the death of Janet. As Deane J said in Nguyen’s case at 168:

“It is true that the assessment of the damages “proportioned” to the injuries sustained may be more difficult in a case where the services had not been and will not be replaced than in a case where the actual cost of replacement services has been incurred and is available to assist in determining the value of the lost services. In both cases, however, the injury is the same. It is the loss of the services; ‘the widower, who does without and fends for himself, suffers loss as much as the widower who replaces the lost services with those of a housekeeper’...”.

93 In the same case Dawson, Toohey and McHugh JJ said at page 176:

“In some families, the children might reasonably have been expected in the course of time to have taken up, to a greater or lesser extent, the household duties previously performed by a parent. In that event, the loss incurred by reason of the death of that parent is the less. Of course, if the children take up the household duties, not in the ordinary course of events, but only because of the death of the parent, that will not reduce the total loss and it is irrelevant that the services do not need to be replaced by someone outside the household” (emphasis added).

94 The measure of the loss of services of Janet is the value of the services that would have been provided, rather than either the cost or the extent of the services which are later used in an attempt to replace the services Janet would otherwise have provided: Nguyen v Nguyen (1990) 169 CLR 245; Rowe vScanlan (1969) 1 NSWR 43; Naum v Nominal Defendant (1974) 2 NSWLR 143; Tripodi v Leonello (1982) 31 SASR 9; Targett v Targett (2001) 9 Tas R 234. The voluntary unpaid services by Ms Wiley and Ms Smith (over and above their paid hours) should be ignored altogether: Gillett v Nominal Defendant (1976) 2 NSWLR 65 (note).

95 The services provided by the paid housekeeper and cook were far less than Janet had provided to Peter and Matthew. The housekeeper and cook only come on 2 days each week though they both did additional voluntary work at home. The food that is provided is effectively a fairly modest contribution to the eating and cooking requirements of Peter and Matthew.

96 There is also a major difference in the value of cleaning services between a house which is kept clean in a very efficient manner 7 days a week (as occurred before the accident) and a household where there is intermittent provision of some housecleaning services (as occurred as at the date of trial). Peter and Matthew did not have Janet’s services replaced by paid services of the same quality and extent: See Budget Rent-a-Car Systems Pty Ltd v Van derKemp (1984) 3 NSWLR 303. Further, they suffered losses because in Janet’s absence after her death, they were forced to simply do without the benefit of such services, which were not replaced: Naum v Nominal Defendant (1974) 2 NSWLR 14.

97 Janet was a very capable home manager. This is a relevant factor in assessing the loss: Wright v Johnston (1980) 23 SASR 198. The limited services provided by the two helpers, did not reproduce faithfully all the services provided by Janet and the cost of the services which were actually provided by a substitute cannot reasonably be treated as anything other than a starting point: Nguyen v Nguyen (1989) 169 CLR 245, 265 per Dawson, Toohey and McHugh JJ.

98 There is a dispute about how much time Janet actually spent on domestic work and gardening. I have found that she was an exceptional person, in terms of the work she did. I find that neither Peter nor Matthew did any significant domestic work or cooking before Janet died. Peter, but not Matthew, did some work in the garden and orchard, but this was minor compared to Janet’s contribution. Peter claims the loss is equivalent to 25 hours week. I consider this claim is understated, given the evidence. However, I accept that some of the things that Janet did in the house were for her own benefit. I do not include this within the 21 hours estimated by Mrs Robertson, as I find that what she did for herself was virtually entirely work that she would have done in any event for Peter and Matthew. It is fair to say that many women, especially women living in rural areas, devote themselves to their families rather than their own needs, and this is consistent with all the evidence concerning Janet, which was not challenged. In those circumstances I will calculate compensation for loss of domestic services for Peter and Matthew at 21 hours, and I state that this is a figure, which is arrived at after deductions for any benefit Janet may have received for herself from the housework.

99 The amount paid to Mrs Smith and Mrs Wiley was not “the commercial rate”. Peter said that he simply paid the housekeepers what they wanted. The relevant value is the commercial rate and the evidence on that is unchallenged. The rates paid ($10, but $20 in the last year) for about 4 hours per week to family friends who offered their help, was achievable for some years, but for the quantity of services which I accept as necessary to replace the loss of Janet’s services for the purposes of these proceedings, 21 hours a week, at the commercial rate is the likely replacement cost.

100 In any event, the services provided by the two housekeepers do not replace all the services provided by Janet. In Nguyen v Nguyen 91 ALR 161, Dawson, Toohey and McHugh JJ said at 175:

“In evaluating the loss.... ‘compensation for the loss of a wife’s gratuitously rendered domestic services should not be confused with the actual cost to the bereaved husband of providing substitute services. This no doubt affords a guide to the amount that the actual expenses of the Plaintiff for a limited period are not necessarily its measure’ per Sugerman JA in Rowe v. Scanlan (1969) 1 NSWR 43 at 45. In practice evidence is often led of the cost of engaging domestic help between the date of death and the hearing of the action: see for instance, Budget Rent-a-Car Systems Pty. Ltd. v. Van der Kemp (1984) 3 NSWLR 303 at 306. But the damages to be assessed are those suffered by the Plaintiff and cannot always be equated with the cost of such help. The services formerly rendered by a deceased wife may not be capable of being reproduced faithfully by services which are commercially available and the scope and cost of the only services commercially available may be disproportionate in comparison with the scope and value of the services which were actually provided by the deceased wife. In circumstances such as that it will not be reasonable to regard the cost of such substitute services as any more than a starting point in assessing a plaintiff’s loss. Indeed, in cases where the disproportion is severe, the cost of commercially available services may offer no real guide at all. It must always be borne in mind that the damages to be assessed are those suffered by the plaintiff by reason of the death alone”.

101 Counsel for Peter referred me to Cooper-Stephenson, Personal Injuries Damages in Canada, Carswell, 2nd Ed, 1996, pp 684-685, which refers to the superiority of the value of a wife’s services over a “mere hireling”. This approach is correct and should be adopted here.

102 The defendant takes the view that, given what Peter and Matthew now do by way of domestic and gardening work, and the paid help of Mrs Smith and Mrs Wiley, I should allow 15 hours. I do not consider that the cost of the paid replacement can be any more than a starting point in calculating the value of the loss of Janet.

103 Nor do I consider the opinion of Mr Walker, the expert occupational therapist qualified by the defendant on this matter, to be entitled to great weight either in respect of the time required to provide services or of their value. He stated that his estimate was based on what he considered reasonable in the circumstances. Mrs Robertson, the expert qualified by the Walden family, based her opinion on her observations of households, urban and rural, over 20 years. I find that this is a more appropriate approach. What is reasonable cannot be based on some abstract or theoretical model of what an expert, such as Mr Walker, thinks people ought to do when acting rationally. It needs to be based on observations of what people actually need. Mrs Robertson’s associate, Ms Thomas, actually visited Parkview while Mrs Smith was working there. She made an estimate of what Janet had actually done and the estimate of the reasonable needs of Peter and Matthew was based on this observation.

104 Mr Walker made an assumption that shopping by telephone or Internet was possible in Bega, but I am not satisfied that it was. Even so, it cannot be assumed that it was unreasonable for a person to want to have shopping done in a traditional way. Allowance must be made for Peter’s and Matthew’s actual preferences, which was to have paid assistance to do shopping physically.

105 Mrs Robertson’s estimate of loss was 25 hours per week, including 4 hours gardening. I accept this figure, as the family did not claim more, and I also accept her figures as to the cost of such services, as they are based on actual knowledge and experience of providing domestic assistance, rather than the more theoretical calculations of Mr Ivey and Mr Walker, an accountant and an occupational therapist respectively who based their opinions on abstractions rather than observations.

106 The rate for voluntary care provided under the Motor Accidents Compensation Act and the Workers’ Compensation Act is now about $20 per hour. This rate is not specifically directed at death claims but provides a reasonable additional yardstick as to the value of voluntary domestic services. I consider the rate should be $17-$20 per hour, the hourly rates set out in Ms Robertson’s report.

107 On this basis, the plaintiff’s counsel has formulated the basis of the claim for domestic loss on the basis of 21 hours per week for domestic assistance and 4 hours per week of gardening assistance, calculated at the hourly rates quoted by Dial-an Angel. I accept that formulation.

27 August 1999 - 31 December 1999 ($15 per hour or $315 per week)

$315 x 18 weeks - $5670

1 January 2000 to 31 December 2003 ($17 per hour or $357 per week)

$357 x 208 weeks - $74 256

1 January 2004 - 31 December 2005($18 per hour or $378 per week)

$378 x 104 weeks- $39 312

1 January 2006 to judgment date 2 May 2007 ($21 per hour) or $441 per week)

$441 x 71 weeks – $31 311

Total past loss of past domestic services - $150 549

FUTURE LOST VALUE OF DOMESTIC SERVICES

Period from 1 April 2007 to end of life expectancy of Peter ($21 per hour or $441 per week) using 5% multiplier for 15 years (555) - $244 755

PAST LOST VALUE OF GARDENING SERVICES

(4 hours per week)

27 August 1999 to 31 December 1999 ($20 per hour or $80 per week) $80 x 18 weeks - $1440

1 January 2000 to 31 December 2000 ($22 per hour or $88 per week)

$88 x 52 weeks - $4576

Period 1 January 2001 to 31 December 2005 ($27.50 per hour or $110 per week) $110 x 260 weeks - $28 600

1 January 2006 to judgment date 2 May 2007 ($30 per hour or $120 per week) $120 x 71 weeks - $8520

FUTURE LOST VALUE OF GARDENING SERVICES

Period from 1 April 2007 to end of life expectancy of Peter ($30 per hour or $120 per week) $120 x 5% multiplier for 15 years (555) $66 600

Total value of all lost domestic and gardening services $505 040

Less 15% for vicissitudes

TOTAL $429 284.

108 My observations on this matter reflect my approach to valuation of the loss of Janet’s services in relation to the dairy farm. In a case brought under the Compensation to Relatives Act, the compensation is for the benefit of the family member(s) entitled. The family members are actual human beings. The law is concerned with actual human beings who have actual needs, preferences and wishes, not with what an expert considers some abstract entity, some homo economicus, might, in an economically rational way, be said to require.

109 The losses flowing from Janet's death which are compensable in these proceedings are therefore as follows:

· (on behalf of Matthew) loss of the benefit of Janet's wages from the joinery . - $16 369

· loss of benefits of Janet's services in relation to the Tathra units - $3,800

· loss of benefit of Janet's services to the dairy farm ­- $895 853

· loss of domestic services - $429 284.

110 The pecuniary losses which must be compensated total $1 345 306

Accelerated benefits

111 The defendant concedes that Peter's succession to the family home should not be regarded as an accelerated benefit. It argues, however, that Peter has received other accelerated benefits, which should be set off against the loss he has suffered, and which, it contends, result in the defendant not being liable to pay any sum.

112 An accelerated benefit, for the purposes of this case, is a benefit which a beneficiary has received because of the death of a person, and which the beneficiary would not otherwise have received. The defendant here says that, although the home is excluded from the principle that any accelerated benefit must be set off against the loss caused by the death, the farm property is not. I reject this submission. In Horton v Byrne (1956) 30 ALJR 583, 584, the High Court said, "It must . . . be borne in mind that, had her husband lived, she would have continued to enjoy the use of the house, as well as of the furniture, with him, or of any residence by which it might be replaced, throughout her married life. So that her gain is not very real and certainly is not equal to anything like half the value of full ownership." In Nguyen's case, the High Court appears to have affirmed this principle. In Peipman v Turner (1960) [1961] NSWR 252, 257, the Full Court of the Supreme Court of New South Wales applied the same principle. Where the surviving spouse and children continue to enjoy the benefit of something they enjoyed jointly with the deceased up to the time of death, they do not gain a benefit because of the death. Cape Distribution Ltd v O’Loughlin [2001] EWCA Civ 178 is consistent with this.

113 In this case the defendant argues that the land used for the dairy farm, which was on a separate title to the matrimonial home, should be regarded as a business asset, and that when Janet died, Peter gained a benefit (which he would not have otherwise have enjoyed) by virtue of being the survivor. It is not suggested that Matthew has received any accelerated benefit. It is not clear from the evidence before me whether the land was held as tenants in common or as joint tenants. I do not consider it makes a difference, because what Peter had after Janet’s death, in terms of enjoyment or occupation, was exactly the same as what he enjoyed before her death. The business was certainly operated as a partnership, which works in much the same way as the joint tenancy. Each tenant, or partner, as the case may be, has an interest in the whole of the property. When the other tenant or partner dies, that interest becomes more valuable, but does not change in character. In that sense it cannot be an accelerated benefit. Before Janet died, and after it, Peter enjoyed the dairy farm property just as much as he enjoyed the home. It follows that the increase in the value of his share in the dairy farming land should be regarded in the same way as the increase in the value of his interest in the matrimonial home, and not as an accelerated benefit.

114 The plaintiff concedes that the expense of maintaining Janet prior to her death which is no longer required, might be set off, but such expenses must be seen as coming out of Janet’s salary, so that there is no net gain to Peter and Matthew for which the Defendant can fairly claim any set-off as a collateral benefit. Peter’s wages were not increased by the sum equivalent to Janet’s wages, but by a smaller amount. This may be accidental, but it recognises the fact that Janet’s maintenance is no longer necessary. The question of expenses incurred on Janet herself essentially disappears because her salary more probably than not funded most or all of her living expenses.

115 The sale of the Tathra units merely produced funds that were used for the farm. Matthew’s interests have not changed, as he was merely a discretionary beneficiary of the trust, and had no vested interest. Nor did he gain as a result of his mother’s death. . Peter has gained a benefit, in that he no longer is obliged to pay interest on the mortgage debt to the bank on the farm, which was paid off with the proceeds of the sale. The evidence was that this debt was $206 000 when Janet died. The debt was a joint debt of Janet and Peter. If Janet had survived, presumably she would have paid half the interest. Assuming interest rates of 10%, Peter has saved a sum of about $10 000 per year. I make some allowance for this benefit and will set off a sum of $40 000 on this account.

116 Otherwise I reject the defendant’s arguments regarding set-off of accelerated benefits, as I find that, with the one exception I have noted, neither Peter nor Matthew has received any such benefit.

117 There will accordingly be a verdict for the plaintiff in the sum of

$1 305 306.

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