Wiggins as Administrix of the Estate of Daniel Owen Williams (Dec) v Barrick (Kalgoorlie) Ltd - [2013] WADC 138

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WIGGINS as Administrix of the Estate of DANIEL OWEN WILLIAMS (Dec) -v- BARRICK (KALGOORLIE) LTD [2013] WADC 138

CORAM: HERRON DCJ

HEARD: 8-9 & 25 JULY 2013,

DELIVERED : 23 AUGUST 2013

FILE NO/S: CIV 2 of 2010

BETWEEN: CARLIE MARIE WIGGINS as Administrix of the Estate of DANIEL OWEN WILLIAMS (Dec)
Plaintiff
AND
BARRICK (KALGOORLIE) LTD
Defendant

Catchwords:

Fatal Accidents Act 1959 - Damages - Loss of dependency - Loss of services - Dependent widow and child - Underground miner

Legislation:

Fatal Accidents Act 1959

Result:

Award of damages to Ms Wiggins $969,531
Award of damages to Tyson $417,780

Representation:

Counsel:

Plaintiff: Mr K S Pratt
Defendant: Mr D R Clyne

Solicitors:

Plaintiff: Macdonald Rudder
Defendant: SRB Legal

Case(s) referred to in judgment(s):

Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) Aust Torts Reports 81-043
Campbell v Li-Pina [2007] WASCA 64
De Sales v Ingrilli (2002) 212 CLR 338
Jongen v CSR Ltd (1992) Aust Torts Rep 61
Villasevil v Pickering (2001) 24 WAR 167
Watts v Turpin (1999) 21 WAR 402

HERRON DCJ:

Background

The defendant (Barrick) operates a gold mine, the Kanowna Belle Mine, near Kalgoorlie (the mine). Between 2007 and 2009 Barrick employed Daniel Owen Williams (the deceased) at the mine. On 7 August 2009 during the course of his employment the deceased died as a result of injuries suffered in an accident at the mine.
At the date of his death the deceased was in a de facto relationship with the plaintiff (Ms Wiggins). Ms Wiggins and the deceased commenced living together in May 2006. There is one child of Ms Wiggins and the deceased, a son Tyson Owen John Williams, born on 21 May 2007.
Barrick admits liability for the death of Daniel Owen Williams and admits Ms Wiggins is entitled to maintain an action and recover damages in respect of the deceased's death for the purposes of s 4 of the Fatal Accidents Act 1959 (the Act).
Barrick also admits Ms Wiggins was a de facto partner of the deceased and therefore a relative of the deceased as defined by sch 2 of the Act and for the purposes of s 6.
Therefore this action is only concerned with the assessment of damages, specifically a claim for loss of dependency and a loss of services.

Ms Wiggins

Ms Wiggins is aged 27 years; her date of birth being 20 March 1986.
Ms Wiggins and the deceased met each other in approximately January/February 2006. They commenced living together on 10 May 2006 and thereafter lived continuously together until the deceased's death on 7 August 2009. Initially they boarded with the deceased's parents before renting a house. They later purchased a house together (3 Talmalmo Place, Adeline), although it was solely in the deceased's name because Ms Wiggins was not then working. The house was a three‑bedroom, one bathroom house on a large property. All of the houses in which Ms Wiggins and the deceased lived together were in or around Kalgoorlie.
Ms Wiggins attended the Eastern Goldfields Senior High School until Year 10. She then commenced secretarial studies at the Kalgoorlie campus of Curtin University but did not complete them. She then worked as a chef for three to four years completing an apprenticeship when she was aged approximately 19 years. She worked at various hotels in Kalgoorlie.
Ms Wiggins continued working as a chef until she was approximately five months pregnant with her son Tyson who was born on 21 May 2007. After Tyson was born Ms Wiggins cared for Tyson and was a homemaker for approximately six months. Ms Wiggins thereafter obtained employment as a clerk at Civic Video in Kalgoorlie working two days a week approximately seven to eight hours a day. Ms Wiggins has continued in that employment to the present time.
Ms Wiggins says, and I accept, the deceased was quite traditional and preferred Ms Wiggins to stay at home raising their son but Ms Wiggins for her own personal reasons including her independence, wanted her own employment.

Daniel Owen Williams (the deceased)

It is not in dispute that at the date of his death the deceased was employed by Barrick as an underground miner at the Kanowna Belle Gold Mine. He commenced employment with Barrick in January 2007. He commenced employment as a truck operator but later progressed to working in the service crew. He worked shifts of four days on and four days off. The deceased travelled to and from the mine by carpooling.
According to the deceased's résumé, which was tendered in evidence, the deceased was born and raised in New Zealand. His date of birth is 3 October 1982. He was therefore aged 26 years, nearly 27 years, as at the date of his death.
The deceased worked in a market garden for approximately 20 months in 1998 and 1999. He then worked as a factory hand for three years between 1999 and 2002 and thereafter as a storeman for three years until September 2005. Between February and July 2006 he worked as a driller's offsider in Kalgoorlie. He was working as a driller's offsider when Ms Wiggins first met him. Between July and December 2006 he worked as a truck driver and in the service crew for Byrnecut Mining at Mount Marion.
According to Mr Walford‑Spring, who was employed by Barrick at the Kanowna Belle mine and worked with the deceased in the red crew in the service crew for approximately nine months, the deceased was a fantastic worker, a real go‑getter who always went that extra step. The deceased was good at whatever he put his hand to. Mr Walford‑Spring formed the impression the deceased wanted to work his way to the top in the underground mining industry, that is, he wanted to work as a jumbo operator. Mr Walford‑Spring was the deceased's leading hand.
Although the deceased was employed in the service crew at the time of his death, he was training to be a bogger operator.
Mr Phillip Clarke also worked with the deceased at the Kanowna Belle mine. Mr Clarke also worked for a brief period of approximately three months with the deceased at Beaurepaires in Kalgoorlie when Mr Clarke was employed as the assistant manager and the deceased as a tyre fitter. Mr Clarke regarded the deceased as a good worker. During the deceased's employment with Barrick at the Kanowna Belle mine Mr Clarke was employed as a charge up operator while the deceased worked as a truck operator and in the service crew. He worked the same shift as the deceased. He said the deceased wanted to get in and do the work and loved getting his hands into the work.
Mr Timothy Mavor also gave evidence that he worked with the deceased at the Kanowna Belle mine. They both worked in the red crew. The deceased started a few months after Mr Mavor started. Mr Mavor initially worked as a truck operator and then switched over to a development charge up role. He said the deceased initially started working as a truck operator and then moved to the service crew. Mr Mavor and the deceased used to work together now and again. Mr Mavor formed the view the deceased was a good hard worker. Nothing was too much trouble for him. The deceased at the time of his death was the leading hand in the service crew and had just been given his training paperwork to move up to a bogger operator. Mr Mavor observed the deceased training on the bogger.
Barrick tendered into evidence a letter it sent to the deceased dated 19 January 2009 in which Barrick informed the deceased that a decision had been made to contract out the lateral development work at the Kanowna Belle mine which would result in affected employees being retrenched or moved to similar alternative position within the Kanowna Operations. The letter advised the deceased was assigned to an alternative position as a truck operator, the effective date being 13 March 2009 (TBC). Although there was no evidence as to the meaning TBC, I assume it to mean 'to be confirmed'. Notwithstanding that letter, the deceased remained working as a leading hand in the service crew until the date of his death on 7 August 2009. Clearly therefore Barrick did not follow through on its advice in the letter of 19 January 2009 by assigning the deceased to an alternate position as a truck operator. Counsel for Barrick submitted the letter evidenced there was some risk attached to the deceased's position in circumstances where there were known redundancies in 2009 when Barminco was contracted to take over the development mining work leaving only Barrick employees working in production mining. Counsel submitted the letter assists in proving the uncertainty in employment in the gold mining industry and in particular at Kanowna Belle.
I reject the submission the letter from Barrick of 19 January 2009 to the deceased is evidence his employment was at risk and that there was uncertainty in the gold mining industry or at Kanowna Belle. In my view, and in the absence of any explanation from Barrick, the letter proves if it was the original intention of Barrick to redeploy the deceased as a truck driver, that decision was reviewed and a decision made to keep the deceased on as a leading hand. Perhaps because the deceased was a relatively junior employee in January 2009 (having commenced employment with Barrick in January 2007) an initial decision was made to redeploy the junior employees to their original positions. However, the deceased's work ethic and willingness to undertake his work duties persuaded Barrick to keep the deceased employed as a leading hand in the service crew.
I have earlier noted the evidence of Mr Mavor, which I accept, that at the time of his death the deceased had just been given his training paperwork to move up to a bogger operator and was training on the bogger. In my view it is unlikely the deceased would have been given training paperwork and been permitted to commence training on a bogger if there was any risk that he was going to be redeployed as a truck operator or made redundant. The fact that the deceased remained employed as a leading hand is consistent with Barrick holding him in high regard and providing him with the opportunity to advance in a career as an underground gold miner. I do not accept the letter evidences there was a risk of the deceased being redeployed as a truck driver or being made redundant. On the contrary the fact that Barrick clearly has not acted on the advice in the letter and that the deceased commenced training as a bogger operator suggests, but for his death, he would have remained employed by Barrick at Kanowna Belle.
I find the deceased was a diligent and hard worker who at the date of his death was seeking to advance in a career as an underground gold miner to the fullest extent possible.

Underground gold mining career path

Each of Mr Walford‑Spring, Mr Clarke and Mr Mavor gave evidence consistent with each other as to the career trajectory of an underground gold miner, specifically at the Kanowna Belle gold mine. The evidence was essentially unchallenged and I accept it.
A person with no experience in underground mining is normally initially employed as a truck operator. An inexperienced employee might start with smaller trucks and then move to larger trucks as happened with Mr Clarke. Thereafter the employee would move up to the service crew. The service crew is involved in hanging the various services such as air and water lines, running vent bags, running power cables for underground drills, putting covers on grizzlies and generally hanging up all of the gear necessary for the operation of the underground mine and doing various odd jobs. It involves a lot of carrying and transporting of equipment stores and driving machinery and generally supporting the various operators and broader crew.
Thereafter an underground miner seeking progression would progress to a bogger operator. A bogger collects the ore from the headings and delivers it to stockpiles which are then loaded on to trucks and taken out of the mine. Before qualifying as a bogger operator an underground miner is required to undergo training on a bogger under supervision for a few shifts until a shift trainer confirms the operator's skills are competent enough to allow the person to train on their own. A trainee bogger operator is also required to familiarise themselves with training manuals and undergo written assessments.
A bogger operator seeking advancement would then progress to a charge up operator in mining development and production. A charge up operator works closely with a jumbo operator. The jumbo operator bores into the face of the rock and the charge up operator will then determine what holes needed to be charged to drop the face to the floor. A charge up operator undergoes training and assessment in the use of explosives.
The final progression, which Mr Walford‑Spring described as 'pretty much the top of the rung underground', is a jumbo operator. The jumbo operator drills into the face of a mine or the rock to drop the rock onto the floor.
Each of the witnesses gave evidence that the career progression described above depends upon a number of factors including whether a person seeks progression, the availability of positions, the volatility of the gold mining industry and any consequent impact upon gold prices, whether a mine maintains levels of production and whether a mine undertakes development mining. It also depends upon the experience of the workers. Also, an experienced mine worker is more likely to be offered a position than an inexperienced person. That is, a mine worker who has experience as a bogger operator is more likely to be offered a position as a bogger operator than a person with no experience who requires training.
Mr Walford‑Spring explained that the Kanowna Belle mine operates two 12‑hour shifts; a dayshift and a nightshift.
In relation to the red crew, while the number of miners might vary, typically there would be six truck operators, two or three service crew, five bogger operators, three jumbo operators and two charge up operators.
Mr Walford‑Spring was employed by Barrick from 2006 to 2013. He had worked in mining before he started with Barrick and has been employed in the mining industry for nearly 14 years. When he started with Barrick he was with the underground service crew. He moved on to leading hand service crew and worked in the service crew for, in his words, 'a couple of years' before working his way up to a bogger operator. He worked as a bogger operator until approximately 2010 when he moved into a safety and training role after he was injured at work.
Mr Walford‑Spring was made redundant on 27 May 2013 and given a redundancy package. He then commenced employment with a contracting company, RCR, in a fly‑in, fly‑out occupational health and safety role.
Mr Clarke commenced employment with Barrick in 2006 at the Kanowna Belle mine as a truck driver. He had not previously worked as an underground miner. During his time as a truck driver with the service crew he initially drove smaller trucks and later larger trucks. In October 2007 he commenced training for a charge up operator's position which he explained as mainly dealing with explosives, charging production holes as well as development faces for mine developing. He completed his training and commenced employment as a charge up operator in March 2008. He remains employed in that role at Kanowna Belle mine to the present time.
Mr Mavor gave evidence he will have been employed with Barrick for seven years in October 2013 at the Kanowna Belle mine. He has predominantly worked as a charge up operator. He initially worked as a truck operator.

Salary ranges

Mr Clarke gave evidence that during 2011/2012 he received a base salary of about $104,000 gross per annum. At the end of 2012, the beginning of 2013, the base salary was increased to about $117,000. In addition, he received a quarterly bonus payment and a personal bonus payment. He also received Kanowna site incentive plan payments.
According to Mr Clarke's payroll records, which were tendered in evidence, for the financial year ending 30 June 2013 Mr Clarke earned a gross income of $151,231.41 and received a nett payment after various deductions, including tax deductions, of $107,785.56. His job title is described as 'Operator – Charge Up' and his classification is 'Full‑time – Regular'.
Mr Mavor gave evidence that in the last financial year his base salary was $109,720. He also explained the various bonus payments he received which was consistent with Mr Clarke's explanation. Mr Mavor went on to explain that overtime was also available. Miners were allowed to do a maximum of two days extra on their four days off, that is, work up to an extra two days each shift. However because of family commitments Mr Mavor chose not to work overtime.
Mr Mavor's payroll records were also tendered in evidence. His payroll record for the financial year ending 30 June 2013 reveals Mr Mavor earned $117,617.76 gross and $85,611.70 nett after various deductions.
Ms Emma Hyde, the human resources superintendant for Barrick Gold gave evidence on behalf of Barrick. She is familiar with the recruitment process for employing underground miners. She produced a spreadsheet of salaries currently being paid by Barrick to its employees working at the Kanowna Belle, Raleigh and Rubicon Mines.
She said the current average salary paid for a bogger operator is $106,022 gross per year. For a charge up operator it is $116,367 per year. For a jumbo operator it is $140,702. For an underground shift supervisor the salary paid is $158,404. Finally, for an underground safety and training supervisor the average salary paid is $116,363.
Ms Hyde later accepted in cross-examination that those average salaries were only the base salaries and did not reflect bonus and overtime payments. She agreed the miners could earn a greater salary than the base salary figures she had provided and by way of example was taken to the salary received by Mr Clarke in 2012/2013 of $151,231.41.
Ms Hyde also said that when recruiting for underground operators the only position Barrick considers taking someone on without experience is a truck operator. Otherwise they look for miners with experience. She agreed that usually the greater the experience the higher the salary within the average range is paid. She later clarified that by experienced people she was referring to people who had five years or more underground mining experience. She also said that over the three mines, Barrick employed 33 underground miners over the age of 50 in its three mines and two shift supervisors above the age of 60 years.

Expert evidence

Mr Stephen Heather gave evidence on behalf of Ms Wiggins. He holds a Bachelor of Applied Science in mining engineering which he obtained in 1983. After obtaining his degree he worked in the mining industry for various companies, mainly within Western Australia but also in Fiji. He started as an underground supervisor, eventually working his way up to a mining engineer and in mine management roles including as a general manager and operation manager in the Kalgoorlie region for about five years. He also obtained a first class mine manager's certificate of competency. He worked in the mining industry in those various roles for a period of 17 years.
After he left the mining industry in approximately 1992 and 1993, he spent a few years in different consulting and marketing and promotional roles before in 1995 forming a company with three other partners called Mining People International. Mr Heather is the managing director and principal researcher. The company is involved in three major service areas. First, a supply and recruitment service, where the company for a fee finds employment for individuals in the mining industry. Secondly, Mining People International provides a hire service providing technical individuals or trades and operating staff on subcontract to the mining industry. Thirdly, Mining People International has a small consulting arm involved in remuneration research, salary benchmarking and salary and market trends research.

At the request of Ms Wiggins's solicitors Mr Heather provided two written reports dated 5 September 2012 and 13 November 2012 which were tendered in evidence.
Mr Heather explained the progression of an underground miner's career in similar terms to and consistent with the evidence of Mr Walford‑Spring, Mr Clarke and Mr Mavor.
Mr Heather was told by Ms Wiggins's solicitors at the time of his death the deceased was working as an underground serviceman. He explained an underground serviceman performs a number of tasks to support the broader crew such as catching and carrying, running equipment around, driving things around, delivering equipment stores and people.
He explained that an underground serviceman would generally progress to either a bogger operating role or a charge up role and then onto a jumbo operating role. He explained the charge up operator's job was to gather up the explosives and fill the holes which had been drilled into the production face or the development face with explosives, prime them appropriately and manage everything in relation to the process of getting the face set and ready for blasting.
He explained a bogger operator as using a front‑end loader to pick up the broken rock after the face had been blasted and load it on to the trucks to take the ore away.
A jumbo operator was responsible for drilling the holes in the face using large pieces of equipment. The jumbo operator usually takes up a leadership role with the whole crew and coordinates the crew's activities. He explained a jumbo as being a mobile platform with drills fitted to it with a cabin in which the operator sits and operates levers.
In his first report dated 5 September 2012 Mr Heather provided a range of wages for the various positions for residential workers drawn from Kalgoorlie. Residential workers attract a different salary range to fly‑in, fly‑out workers. The range of gross annual earnings for residential workers drawn from the Kalgoorlie area were itemised as follows:
Leading hand underground serviceman       $77,000 - $122,000
Charge up operator  $92,000 - $145,000
Bogger operator  $99,000 - $160,000
Jumbo operator  $153,000 - $248,000
Mr Heather was also asked for his opinion as to what would have been the deceased's opportunities for advancement given his background and work history. Mr Heather's report noted the deceased commenced employment with Barrick on 29 January 2007 as a member of the underground service crew and within four months transitioned to the position of leading hand service crew. The report also noted the deceased had commenced some training for the position of bogger operator even prior to moving to a charge up operator role. Mr Heather assumed the deceased was to be promoted to bogger operator soon after receiving his competency on such equipment; a period of approximately 27 months since commencing employment with Barrick. Mr Heather was of the opinion the deceased could have moved into a charge up position within another two years which is the average term to stay in a position before moving up to another role in underground mining. After a further two years the deceased could have been promoted to jumbo operator. However Mr Heather emphasised that would depend not only on the deceased's skill but also on available vacancies for the role, noting that on larger mine sites only one jumbo operator is required for approximately every three bogger operators and every two to four charge up operators.
Mr Heather further expressed the opinion that in general terms underground workers move out of jumbo operator roles around the ages of 45 to 50 years. If employees remain in the underground mining industry, the most likely career path thereafter is as an underground shift supervisor or in underground safety and training.
In his viva voce evidence Mr Heather, in response to a question observing that the wage rates provided by him were in September 2012, said that although there was a massive amount of volatility in mining markets generally, and employment was one part of that, the salary rates tend to stabilise particularly in established workforces and operations but that it was not usual to see significant reductions in salary rates. He went on to say that the price for gold had fallen from approximately $1,600 to $1,500 an ounce to approximately $1,250 an ounce currently which had had an impact on hiring intentions and confidence in mining companies causing employers to be cautious in employing. Very few companies were taking on new employees in the current market, particularly around Kalgoorlie.
In cross-examination Mr Heather reiterated the general progression from one position to the next depended upon opportunities being available and whether people retired or progressed to another position. He also confirmed that whether a person progresses depends upon individual assessments being made by supervisors and mine managers. He confirmed that each stage of the progression depended upon the requirements of further training being satisfactorily completed.

Volatility in the gold mining industry and redundancies

As previously noted Mr Walford-Spring was made redundant in his safety and training role on 27 May 2013. He said the reason for the redundancy was that he was the last person signed on the Granny Smith site and therefore the first laid off.
He also said in cross-examination that there were not a lot of jobs available and he applied for 18 jobs before he obtained his current position. I understood him to be referring to jobs in the safety and training area and not in underground mining.
In cross‑examination Mr Clarke confirmed that in 2013 the underground miners were told by Barrick that because of the price of gold the current underground mining plan was to cease production at the mine in 2015. He accepted there was uncertainty in the gold mining industry which was impacting on jobs.
The evidence of Mr Clarke and Mr Mavor was consistent with the expert opinion of Mr Heather. He said that while mining operations were continuing, employers were being cautious in employing people. There were very few companies taking on new employees. Previously a lot of people without experience from the eastern states were able to obtain employment in Kalgoorlie and that had now stopped. Because of the volatility in the gold mining industry, decisions whether or not to employ people or to go ahead with an extra shift were continually being revised and sometimes reversed.
Mr Heather also went on to say that he had experienced six periods of volatility similar to the current period of time. In his experience the volatility always settled down. In times of volatility mining companies will usually mine lower grade ore so that the total cost was spread over a small amount of gold. However the response often was to adjust costs by focusing on high grade ore and to trimming costs. Mr Heather was shown a report in the Western Australia newspaper of 9 July 2013 which highlighted that because of a downturn in the goldfields harvest almost 5,000 jobs had been lost since 1 July 2012. Mr Heather agreed that was in accordance with his experience.
Mr Demeillon was called by Barrick. He had a degree in mining engineering. He is currently the mining manager at Kanowna Belle Mine. He has been employed with Barrick since 2007. He started at the Kanowna Belle Mine in October 2009 shortly after Mr William's death. His initial position at Kanowna Belle was as the underground superintendant. A mining superintendant oversees mining operations including the running of the crews and the foreman. Mining superintendants report to the mining manager who has overall responsibility for the operations of a mine including being responsible for the financial and operating plans and the budgets for the mine. In July each year he prepares a life of mine plan which, if approved by Barrick, commences operation in January the following year.
Mr Demeillon said that the current plan at Kanowna Belle was to mine for another two years until the end of 2015. However, he added that the plan depended upon the current gold price and costs. He said such plans are dynamic which I take to mean that plans will change and be adapted to changing conditions including economic conditions. The gold price was significant in determining future plans. He explained that at a high gold price, Barrick can mine low grade material but as the gold price drops less material is mined. As the gold price goes down the situation is re-assessed and gold price forecasts are made and reviewed. As the gold price drops, less low grade material is mined and the focus is more on high grade material which means less tonnage is mined.
Less tonnage of material being mined results in a need for a lesser number of employees and resources.
Mr Demeillon also gave evidence that in 2009 Barrick altered its structure at the Kanowna Belle Mine by contracting with Barminco for it to undertake development mining for a four year period until 2013. The effect of entering into the contract with Barminco was that during the four year term of the contract, Barrick ceased to employ jumbo operators in development mining and all such jumbo operations were undertaken by Barminco. Barminco provided two bogger operators and two truck operators and Barrick reduced their operators accordingly. Also some bogger and truck operators and service group positions were sub‑contracted to Barminco. This decision would seem to be the reasons for Barrick's letter to the deceased of 19 January 2009 which I have earlier referred to [18] – [19].
In May 2013 the contract with Barminco ended and Barrick have since employed one jumbo operator.
Mr Demeillon later explained in cross-examination that currently Barrick employs four jumbo operators and were also using four Barminco operators to complete some work at Kanowna Belle. During the Barminco contract some jumbo operators were employed at Barrick's Raleigh Mine. After the Barminco contract ended those operators were transferred back to Kanowna Belle.
Mr Demeillon also explained that the development mining undertaken by Barminco opened up new drives and prepared new stopes for mining. Once the development mining is completed the production mining commences.
He explained that Barrick was setting up a lower section in the mine and because of concerns about the rate at which Barrick was able to develop the lower part of the mine they brought in Barminco to increase the development rate so that they could move to production mining sooner.
He also agreed there was no fixed plan to close the mine. He said Barrick was continually exploring and finding additional reserves. They continually revise their life of mine plan paying particular attention to the gold price and operating costs. He agreed that with the recent currency fluctuations and the current gold price around $1,250, conditions were favourable for continuing mining production.
Mr Demeillon said that Barrick had six gold mining operations in Western Australia but there were many other underground gold mining operations not owned by Barrick.

Fatal Accidents Act 1959 damages – principles

In De Sales v Ingrilli (2002) 212 CLR 338 Gleeson CJ [11] – [12] explained the damages recoverable under the Fatal Accidents Act are calculated by reference to the pecuniary benefit that could reasonably have been expected by the continuance of the life had death not occurred. The damages are calculated on a basis of pecuniary gains and losses consequent upon the death.
In relation to a claim for loss of services under the Fatal Accidents Act Gleeson CJ [13] said:
Further, loss of an expected benefit is not restricted to loss of direct financial support. A claimant's loss may include the value of services the deceased would have provided around the home. A starting point for determining the pecuniary value of these services may be the commercial rate for the provision of the services. In this case, in addition to the loss of a share of the deceased's income, the appellant was awarded modest damages for loss of handyman and childcare services provided by the deceased …
He further explained [14] – [15]:
14.Calculating damages for the loss of a reasonable expectation of pecuniary benefit usually involves calculating a primary sum and then making such further adjustments or allowances as are necessary to produce a result that gives a true reflex of the loss. The nature of such adjustments and allowances will be influenced by the manner in which the primary sum is calculated. In a case like the present, there are three main elements in determining the primary sum. Each element involves speculative judgments, which cannot be made with accuracy. The court assesses what benefits the deceased would have brought to the family, in the form of either income or the provision of services. The court determines the share of that benefit that would have been enjoyed by a relative during the deceased's lifetime. And the court determines the period for which a relative could reasonably have expected to receive the benefit. For example, a surviving spouse may say that it was reasonable to expect to receive a benefit measured as a share of the deceased's income until the deceased's expected age of retirement. A child of the deceased may reasonably expect to receive such a benefit until the child reaches an age of expected financial independence. The primary sum awarded is the present value of a relative's total expected benefit. The calculation of the primary sum might itself be done by a method that involves allowing for contingencies such as are taken up in actuarial calculations of life expectancy, and the present value of a future income stream.
15.The court may then be required to allow for further contingencies that may affect the loss of benefit sustained by the claimant. Courts take account of such contingencies in two ways. Certain contingencies may be provided for by way of a general allowance for the 'vicissitudes of life'. Such contingencies may be relatively unlikely to occur, or their occurrence may be impossible to predict with any accuracy. Other contingencies may be more likely to occur, and more susceptible to specific calculation in the circumstances of a particular case. In these circumstances, if the tribunal assessing damages is a judge sitting without a jury, it may be appropriate to apply a special discount for the specific contingency in question. For example, a general discount is sometimes applied to allow for contingencies such as the chance of premature death, injury, sickness or unemployment.
Gaudron, Gummow and Hayne JJ [66] – [67] highlighted that the assessment of pecuniary loss under the Fatal Accidents Act cannot be calculated with accuracy and involves a degree of speculation.
The High Court approved the Full Court's approach in allowing a discount of 5% for general contingences.
See also Campbell v Li-Pina [2007] WASCA 64 per McLure JA (Steytler P and Buss JA agreeing) [15] – [20].

The issues

It is not suggested by Barrick that as a result of Mr Williams' death, Ms Wiggins has received a pecuniary gain or an accelerated benefit. Barrick accepts Ms Wiggins has suffered a pecuniary loss or loss of dependency and loss of services by reason of Mr Williams' death. The only issue is as to what is a reasonable measure of the extent of the pecuniary loss. Specifically, in relation to loss of dependency, what is the probable career path as an underground miner, the deceased would have followed had he not died and what is the probable income he would have earned. It is in issue whether, and if so when, the deceased would have progressed through the various positions and ultimately become a jumbo operator.
In her schedule of damages, Ms Wiggins relies upon table 9.1 in Luntz, The Assessment of Damages (4^th ed). At the time of his death, the deceased was earning $1,879.01 gross per week, and Ms Wiggins $232.17 gross per week. Ms Wiggins was therefore earning about 12% of the deceased's income. Ms Wiggins submits that during the period in which Tyson would have been financially dependent upon his father, the degree of dependency for Ms Wiggins is 41.4% and for Tyson 27.1%. Once Tyson reaches the age of 21 years, it is submitted, he would cease to be financially dependent upon the deceased. The degree of dependency of Ms Wiggins should thereafter, for the balance of the deceased's expected working life, be assessed at 61.5% of the deceased's income.
Barrick agrees it is appropriate to rely upon table 9.1 in Luntz in assessing the degree of dependency. It also agrees the degree of dependency adopted by Ms Wiggins is appropriate.
In my view, the method of assessing the degree of dependency adopted by Ms Wiggins is reasonable and I approach the assessment of past and future loss of dependency on that basis. The issue however remains as to what is the probable income the deceased would have earned in the future.

Assessment

Loss of dependency

Past loss of dependency – Loss of wages

Would the deceased therefore have qualified as a bogger operator and been employed by Barrick in that position and if so, when? I have earlier [15] found that at the time of his death the deceased was working as a leading hand in the service crew and had recently commenced training to become a bogger operator. Ms Wiggins submits the deceased would have continued working as a leading hand service man until obtaining the position of bogger operator during the financial year ending 30 June 2010 or early in the financial year ending 30 June 2011.
I have also earlier [63] noted the evidence, which I accept, that during 2009 Barrick contracted with Barminco for Barminco to take over development mining from Barrick for a four year period. As a result of entering into the contract with Barminco, Barrick ceased to employ jumbo operators and bogger operators in development mining. However, the fact that the deceased, who was employed in the production mining division by Barrick, had shortly prior to his death on 7 August 2009 commenced training as a bogger operator suggests the defendant was likely to have offered the deceased a position as a bogger operator once he qualified and a position became available.
In my view it is likely the deceased would have successfully completed his training as a bogger operator. In his report of 5 September 2012, Mr Heather expresses the opinion that all things being equal, the deceased would have been promoted to bogger operator after completing his training which he had commenced at the date of his death. Although it is not clear how long it would have taken the deceased to qualify as a bogger operator, from Mr Walford‑Spring's description of the onsite training, initially under supervision and then the need to become familiar with the training manual until, in his words, 'you get ticketed', I am left with the impression it may have taken some months for the deceased to complete his training and obtain his ticket to work as a bogger operator. I also note the evidence of Mr Clarke, which I summarised [32] above. Mr Clarke, who had no previous experience as an underground miner, commenced employment with Barrick in 2006. In October 2007 he commenced training for a charge up operator and completed his training later in March 2008. Although the duties of a charge up operator and bogger operator are different, the six months it took Mr Clarke to qualify as a charge up operator is at least an indication of the amount of time it takes to complete the necessary training for each position.
Mr Heather expressed the view, which he described as an assumption, that the deceased could have been promoted to bogger operator within 27 months of starting his employment with Barrick, that is, at or about the time of his death.
In my view, it is unlikely Barrick would have permitted the deceased to train as a bogger operator if it had not intended to employ the deceased in that position. However, considering Barrick was operating a reduced workforce during that period, there may have also been a delay, because there were no available positions, in the deceased being offered the position of bogger operator after he had obtained his qualifications. Given Barrick during 2009 reduced or ceased to employ operators in the development mining division, I accept there may have been some delay before a position became available in production mining and the deceased commenced employment as a bogger operator.

In my view, it is probable the deceased would have continued working as a leading hand in the service crew during 2009 and 2010 until January 2011 when he would have commenced employment with Barrick as a bogger operator.
Thereafter, having already undertaken some training for a position of charge up operator, the deceased would, in time, have progressed to charge up operator. In Mr Heather's view, the deceased could have moved into a charge up position within a further two years of commencing as a bogger operator, potentially a little sooner, as the deceased had already started training in the correct use and handling of explosives for the position of charge up operator. Allowing for the fact that after the contract with Barminco ended in May 2013, following which Barrick employed further operators in the various positions and transferred operators back from the Barrick Raleigh Mine to Kanowna Belle, I accept the deceased would have obtained the position of charge up operator by 1 July 2013.
I have already found it is probable the deceased would have commenced as a bogger operator in January 2011. I accept there were factors such as reduced gold mining production between January 2010 and currently, due in part to the high Australian dollar and higher production costs, which may have adversely impacted upon the deceased's progression during that time. Therefore I think it is unlikely, notwithstanding Mr Heather's opinion the deceased may within another two years, that is, by January 2013, progressed to the next position as charge up operator, the deceased would have achieved such a progression.
I also note the evidence of Mr Demeillon that the current life of mine plan at Kanowna Belle is to mine for another two years until the end of 2015. Barrick's counsel submits that evidence suggests the future of gold mining at Kanowna Belle is uncertain and therefore the deceased's future employment would have been uncertain. However, I have also noted Mr Demeillon's evidence in cross‑examination in which he agreed there is no fixed plan to close the mine and Barrick was continuing to explore and find additional reserves. He also explained the reason Barrick brought Barminco in to undertake development mining was to increase the development rate which in turn leads to production mining commencing sooner. He also agreed that recent currency fluctuations and the reduction in value of the Australian dollar meant conditions were more favourable for continuing mining production.
In my view, that evidence is consistent with Mr Heather's evidence that although the current gold mining industry is as volatile as he could recall, historically the industry goes through cycles and the current cycle is really no different. It is also unlikely Barrick would have entered into a four year development mining contract with Barminco if it was intending to close Kanowna Belle in the near future.
There is no evidence which suggests it is probable gold mining production by Barrick at Kanowna Belle will cease in the foreseeable future. In my view, Kanowna Belle is experiencing, while perhaps not a normal cycle, a cycle to which the defendant has adjusted and which will not lead to the mine ceasing production in 2015. In my view it is likely Barrick will continue gold mining operations at Kanowna Belle into the foreseeable future. It is also my view likely Barrick would have continued to employ the deceased.

The deceased's earnings

In the financial year ending 30 June 2007, the deceased earned $58,735 gross working for Byrnecut Mining and Barrick. For the financial year ending 30 June 2008 he earned $82,879 gross. For the year ending 30 June 2009, the last financial year immediately preceding his death, he earned $97,709 gross which is an average of $1,879 gross per week. In the financial year of his death the deceased earned $10,987.65 gross for the approximately five and a half week period from 1 July 2007 to 7 August 2009 which is an average of $1,997.75 gross per week. Although it is uncertain from the deceased's earnings over the short period of time between 1 July to 7 August 2009 whether he would have maintained that level of income for the remainder of the 2010 financial year had he survived, I accept it is probable he would have earned a greater income than he earned for the financial year ending 30 June 2009, consistently with the increase in his income for each of the years preceding his death.
The average of the income earned in the financial year ending 30 June 2009 and the five and a half week period in 2010 is $1,938.38 gross per week. In my view it is reasonable to assess past loss of dependency for the period immediately following the deceased death on the basis he would have earned an average gross income of $1,950 per week or $101,400 gross per annum.
The parties have helpfully agreed the basis upon which tax is assessed on the gross income. For a gross income of $80,000 in 2009 the tax payable was $17,850. Between $80,001 - $180,000 the tax rate was 38 cents for every $1 over $80,000. Therefore the tax payable on a gross income of $101,400 is as follows:
$80,000
Tax payable $17,850
$21,400 - $0.38 for each $1 = $8,132
Total tax payable $25,982
$101,400
- $25,418 tax
= $75,418 net per annum
$1,450 net per week
In their written submissions and schedules of damages the parties have each calculated past loss to 31 July 2013 and thereafter assessed future loss. I accept that is a reasonable and sensible approach and therefore proceed in the same way.
I have found the deceased would have commenced in the position of bogger operator by 1 January 2011, approximately 15 months after he died.
Ms Wiggins' submits that based upon the range of salaries provided by Mr Heather, an average gross income for a bogger operator is $130,000 gross per annum. Ms Wiggins also submits that, although according to Mr Heather the range of salaries for a charge up operator is slightly less than a bogger operator, the deceased would have earned as a charge up operator at least the same income as a bogger operator. I also note the evidence of Mr Clarke, referred to above [35] that working as a charge up operator he earned for the year ending 30 June 2013 $151,231 gross per annum and $107,785 net. $107,785 net per annum is $2,072 net per week.
I accept that $130,000 gross per annum is a reasonable measure of the income the deceased could have earned as a bogger operator and charge up operator even though it is less than the income currently being earned by Mr Clarke, noting that according to the letter from Barrick to Mr Clarke of 18 December 2012 the 2012 annual sale review increased Mr Clarke's base salary from $114,135 to $117,274 per annum effective from 1 January 2013. [116]
In her schedule of damages, Ms Wiggins' submits that between 2011 and 2013 $130,000 gross per annum equates to between $1,769 and $1,758 net per week. Therefore the average net income during that period is approximately $1,765 net per week, which I find is a reasonable measure of the net income the deceased would have earned as a bogger operator or charge up operator.
Accordingly, I assess past loss as follows:

Leading hand

8 August 2009 – 31 December 2010 - approximately 73 weeks x $1,450 net per week = $105,850

Bogger operator

1 January 2011 – 30 June 2013 – 130 weeks x $1,765 net per week = $229,450

Charge up operator

1 July 2013 – 31 July 2013 – approximately 4 weeks x $1,765 net per week = $7,060
Total = $342,360

Past loss of dependency - superannuation

$342,360 x 9% x 85% = $26,190

Therefore the total sum for past loss is $368,550.
Adopting the rate of dependency agreed by the parties which I have accepted as reasonable, past loss of dependency is:
$368,550 x 68.5% = $252,457
Allocated as to:
(i)Ms Wiggins (41.4%) $152,579
(ii)Tyson (27.1%) $99,878

Interest on past loss

Pursuant to sch 1 of the Workers' Compensation and Injury Management Act 1981 the defendant has paid to Ms Wiggins and Tyson the sum of $254,810.
Past loss of dependency is $252,457. Therefore no interest is payable on past losses.

Future dependency

Loss of wages

The deceased would have turned 31 years on 3 October 2013. I have found that by 1 July 2013 the deceased would probably have moved into a charge up operator role earning a similar income to that which he would have earned as a bogger operator of $130,000 gross per annum.
Thereafter, according to Mr Heather, the progression to a jumbo operator is less certain. Although Mr Heather says that within a further two years the deceased could have been promoted to jumbo operator, assuming the deceased satisfied the training requirements and obtained the necessary skills, such a progression, as indeed is the case with the other positions, depends upon vacancies for the role. There are less jumbo operator positions available than for bogger operators and charge up operators.
However, Mr Demeillon also said that Barrick has recently employed a jumbo operator following the end of the Barminco contract.
I also find that Mr Heather's uncertainty as to whether the deceased would have progressed to a jumbo operator is underlined by Barrick ceasing to employ jumbo operators after the contract with Barminco was entered into in 2009. However, I also note that since the contract ended in May 2013, Barrick have employed another jumbo operator. Mr Demeillon said Barrick currently employs four jumbo operators.
I also note the evidence of Mr Heather in cross-examination, which I accept, when, in response to being shown an article from the West Australian newspaper of 9 July 2013 recording a down-turn in the gold fields industry resulting in the loss of 5,000 jobs, (which Mr Heather accepted was about 10% of the workforce), he agreed it reflected his experience. The newspaper article was consistent with Mr Heather's evidence regarding the volatility and difficulties the gold mining industry is currently experiencing. However, as against that, Barrick have continued to maintain its workforce at Kanowna Belle and, as confirmed by Mr Clarke and Mr Mavor, have made overtime, bonus and incentive payments, although production rates have been slightly less than forecast. I also note Mr Walford-Spring remained employed by Barrick in a safety and training role until he was made redundant in May this year and paid $85,000 as part of a redundancy package.
In my view it is unlikely the deceased would have been employed as a jumbo operator before now.
However, it is also likely the deceased would have continued to have sought progression in the underground gold mining industry with a view to ultimately qualifying as a jumbo operator.
Although I accept there are risks the plaintiff may not have ultimately progressed to a jumbo operator, including the risk of injury as happened with Mr Walford-Spring, I am of the view that it is probable that by the time the plaintiff reached the age of 35 years, in another four years time, which allows for a delay in progression caused by Barrick ceasing to employ jumbo operators during the four year period of the Barminco contract, he would have obtained the position of jumbo operator.
In his report of 5 September 2012 Mr Heather says that underground workers move out of jumbo operator roles around the 45 to 50 years age mark. I accept the deceased, once he commenced in a jumbo operator's role, would have continued in that role under the age of 45 years, that is, for 10 years.
As to the salary the deceased would have earned as a jumbo operator, Ms Wiggins submits, based upon Mr Heather's opinion that the salary range is $153,000 to $248,000 gross per annum, that $200,000 gross per annum is a reasonable measure of the income the deceased would have earned in the future. I have earlier noted Ms Hyde's evidence that the current average salary paid for a jumbo operator is $140,702. However, she conceded that was only a base salary and did not reflect bonus and overtime payments. There is also the evidence of Mr Heather that an inexperienced operator is paid towards the lower end of the range.
Barrick in its submissions accepts there was a reasonable prospect that the deceased may, in due course, have become a charge up operator. However, because of difficulties in the gold mining industry, risks of redundancy and that the deceased may have preferred to remain as a bogger operator given it is apparently a lighter position, it disputes there was any reasonable prospect of the deceased being promoted to a jumbo operator.
I reject the submission the deceased would not have progressed to a jumbo operator. I have already found the deceased would have sought to have advanced his career as an underground gold miner to the fullest extent possible. I have also found that although Barrick sent a letter dated 19 January 2009 to the deceased referring to the possibility of retrenchments and assigning the deceased to a truck operator's position, the deceased remained employed as a leading hand, which suggests he was highly regarded by Barrick and therefore unlikely to be made redundant. That is also consistent with the fact that at the time of his death he had commenced training as a bogger operator. It is unlikely Barrick would have agreed to the deceased commencing training as a bogger operator if there was any risk Barrick would have retrenched him.
Further, in a letter to Mr Clarke of 18 December 2012 Barrick states that 2012 was a very busy year with a significant amount of work being undertaken on the optimisation of the Kanowna Belle underground operation following seismic damage in 2011. The letter also states that although the targeted level of performance was not achieved, Kanowna Belle delivered well on tonnes. The letter records that Kanowna Belle battled with low grades during the year despite the highest ever tonnage mined. The end result was that Barrick produced 228,000 ounces against a plan of 235,000 ounces. The letter concluded by stating that Mr Ovens, the mine general manager for Barrick, believed Barrick would deliver on their targets for the next year. Mr Clarke's base salary was increased effective from 1 January 2013.
I also note that both Mr Clarke and Mr Mavor received bonus or incentive payments during 2012 and 2013 which in my view is consistent with a favourable outlook for Barrick's gold mining operations at Kanowna Belle.
I therefore do not accept the defendant's submission that the fair basis to assess the future income the deceased would probably have earned is the average income of a bogger operator and charge up operator. I also observe the income figures relied upon by Barrick only use the base salary figures provided by Ms Hyde and do not make any allowance for bonus or overtime payments which is reflected in the salaries received by Mr Clarke and Mr Mavor. They are therefore in my view an unestimation of the average income which the deceased would have earned even were I to accept it was reasonable to assess future loss on the basis proposed by Barrick.
In summary, in my view, the assessment of the future loss of income the deceased would have earned is on the basis that for approximately the next four years until 3 October 2017 the plaintiff would have been employed as a charge up operator earning an average income of $130,000 gross per annum. Thereafter he would have worked as a jumbo operator for the next 10 years until the age of 45 years.
In my view it is reasonable to adopt an average income which the deceased would have earned as a jumbo operator of $175,000 gross per annum, taking into account the evidence of Ms Hyde (which only related to a base salary) and the range of salary payable provided by Mr Heather. It also takes into account the fact that the deceased when he started as a jumbo operator would have been inexperienced. It further takes into account the fact that currently there is some volatility in the mining industry which may continue indefinitely into the future, which adversely impacts upon the number of underground miners, including jumbo operators, who are employed and the wage paid to them.
Tax payable on a gross income of $175,000 is as follows:
$80,000
Tax payable $17,547
$95,000 x 0.37 cents = $35,150
Total tax payable $52,697
$175,000 gross per annum
$52,697 tax
$122,303 net per annum
$122,303 net per annum less 1.5% Medicare levy $120,468 say $120,000
$2,307 net per week
After the deceased would have ceased working as a jumbo operator at age 45 years, Ms Wiggins submits he would have continued working in the underground mining industry but in a lighter position, such as a supervisory role, earning not less than $145,000 gross per annum. Ms Wiggins submits the deceased would have continued working in that role until the age of 62 years when he would have retired.
Although Barrick accepts that a retirement age of 62 years is reasonable, it maintains that the deceased would only have continued to earn the average base income between a bogger operator and a charge up operator which it says is $116,367. For the reasons I have earlier expressed, including the income figures relied upon by Barrick are only base salary rates, I reject Barrick's submission. In my view it is reasonable to adopt a rate of $145,000 gross per annum. Such a rate is consistent with the opinion of Mr Heather that an underground shift boss is able to earn $131,000 to $204,000 gross per annum and an underground safety and training advisor, (which I note is a similar position to that in which Mr Walford‑Spring was employed after he was injured), of $117,000 to $140,000 gross per annum. According to Mr Walford-Spring he will earn approximately $230,000 gross per annum in the employment he has just commenced.
Tax payable on a gross income of $145,000 is as follows:
$80,000
Tax payable $17,547
$65,000 x 0.37
$24,050
Total tax payable $41,597
$145,000 gross per annum
- $41,597 tax
$103,403 net per annum
Less 1.5% Medicare levy $101,851 net per annum
$1,958 net per week

Discount for contingencies

Both parties accept future loss should be discounted for contingencies, however there is disagreement as to the appropriate rate.
Barrick submits contingencies need to take into account the risks, uncertainties and dangers inherent in working in the mining industry and in particular underground. Barrick also submits there is a prospect of the plaintiff remarrying given her young age, which needs to be taken into account. It is submitted that in assessing Ms Wiggins' future loss a discount of 12% should be applied. In relation to Tyson a 5% discount should be adopted.
In his closing submissions, counsel for Ms Wiggins submits a range of 10% - 15% is reasonable, which is not to say he accepts 12% as submitted by Barrick's counsel is reasonable, noting that Barrick uses much lower income rates in assessing future loss.
In Western Australia the normal discount for contingencies is in the range of 2% ‑ 6% (Black v Motor Vehicle Insurance Trust [1986] WAR 32; Bowen v Tutte (1990) Aust Torts Reports 81-043). I have earlier [74] referred to the High Court's approval of the Full Court's approach in the De Sales v Ingrilli in allowing a discount of 5% for contingencies. In that case the High Court also overturned the Full Court's allowance of a further discount of 20% for the prospects of remarriage.
I therefore reject Barrick's submission that there should be any further discount for the prospect of Ms Wiggins remarrying.
Where conservative projections are used for the calculation of loss of earning capacity, there may be no need to make any further deduction for negative contingencies: Watts v Turpin (1999) 21 WAR 402, 413.
In my view a reasonable discount for contingencies is at the rate of 10%. I have earlier noted the various risks and uncertainties faced by the deceased in the underground mining industry including safety risks and uncertainty of ongoing employment and progression given some current volatility in the industry. I have to some degree taken those factors into account in making my findings regarding the deceased's probably future career path and the income he would have earned. However, although the income figures I have adopted are more conservative than those which Ms Wiggins submits should be used, it is not in my view so conservative that a normal rate of 5% should be adopted.

Age to which Tyson would have been dependent on the deceased's earnings

Ms Wiggins submits future loss of dependency should be assessed until Tyson reasons the age of 21 years. Barrick submits future loss should only be assessed until the age of 18 years. Counsel for Barrick points out that both Ms Wiggins and the deceased left school at a relatively young age and did not go onto tertiary education. Therefore, it is submitted, Tyson will probably follow a similar education and career path and enter the workforce before the age of 18 years when he would cease to be dependent upon his father's earnings. However that submission ignores the fact that Ms Wiggins served an apprenticeship as a chef over three to four years qualifying at approximately 19 years of age. Although I accept there is no evidence of apprentice wage rates, it is common knowledge that such rates are significantly less than a full adult wage rate for a qualified person having completed an apprenticeship. It would therefore not be unusual that an apprentice aged more than 18 years would remain financially dependent upon a parent until after an apprenticeship was completed and they were earning a tradesman's wage.
Also, while I accept there is no evidence as to his parent's intentions for Tyson's future, which is understandable given he was only a little over two years at the date of his father's death, I do not accept it necessarily follows that because neither of his parents went onto tertiary education he would not have. I also note however that in many of the cases in which the age of 21 has been adopted in calculating future loss of dependency of children, there is some evidence that children were likely to undertake tertiary education.
In my view, future loss of dependency should be assessed on the basis Tyson would probably have remained dependent upon the deceased's earnings until reaching the age of 20 years, that is, a period of a further 14 years. The 6% multiplier for 14 years is 499.4.
The calculation is as follows:
From 1 August 2013 to October 2017 is approximately 4.16 years. The 6% multiplier for 4.16 years is 192.6.
$1,765 net per week x 192.6 = $339,939
less 10% for contingencies = $305,945
From 3 October 2017 to 2 October 2027 6% the multiplier for 10 years is 395.5. The 6% multiplier for a delayed period of four years is 0.792.
395.5 x .792 x $2,307 = $722,635
less 10% for contingencies $650,372
From 4 October 2027 to 3 October 2044 6% multiplier for 17 years is 562.9. The 6% multiplier for a delayed period of 14 years is .442.
562.9 x .442 x $1,958 = $487,153
less 10% for contingencies $438,438

Future loss of dependency

Wages

First period

1 August 2013 to 2 October 2017
$305,945 x 68.5%
$209,572
Allocated to:
(i)Ms Wiggins (41.4%) $126,661
(ii)Tyson (27.1%) $82,911

Second period

1 October 2017 to 2 October 2027
$650,372 x 68.5%
$445,504
Allocated to:
(i)Ms Wiggins (41.4%) $269,254
(ii)Tyson (27.1%) $176,250

Third period

4 October 2027 to 3 October 2044
$438,438 x 61.5%
Allocated to Ms Wiggins $269,639

Superannuation

First period

1 August 2013 to 2 October 2017
$305,945 x 9% x 85% = $23,404 x 68.5% = $16,031
Allocated to:
(i)Ms Wiggins (41.4%) $9,689
(ii)Tyson (27.1%) $6,342

Second period

1 October 2017 to 2 October 2027
$650,372 x 10.5% x 85% = $58,045 x 68.5% = $39,760
Allocated to:
(i)Ms Wiggins (41.4%) $24,030
(ii)Tyson (27.1%) $15,730

Third period

1 October 2027 to 2 October 2044
$438,438 x 12% x 85% = $44,720
Allocated to Ms Wiggins (61.5%) $27,503

Total future loss of dependency

First period

1 August 2013 to 2 October 2017
Ms Wiggins:
(i)Loss of wages $126,661
(i)Loss of superannuation $9,689
Total $136,350
Tyson:
(i)Loss of wages $82,911
(ii)Superannuation $6,342
Total $89,253

Second period

3 October 2017 to 2 October 2027
Ms Wiggins:
(i)Loss of wages $269,254
(ii)Loss of superannuation $24,030
Total $273,284
Tyson:
(i)Loss of wages $176,250
(ii)Loss of superannuation $15,730
Total $191,980

Third period

4 October 2027 to 3 October 2044
Ms Wiggins:
(i)Loss of wages $269,639
(ii)Superannuation $27,503
Total $297,181

Total

Ms Wiggins $706,776
Tyson $281,233

In assessing loss of superannuation, I have applied a discount of 15% for fund administration costs, risks of poor investments and taxation of superannuation in accordance with the approach in Jongen v CSR Ltd (1992) Aust Torts Rep 61, 706 and Villasevil v Pickering (2001) 24 WAR 167 as amended by the Commonwealth legislation in 2007 which reduced the rate of taxation. Previously the accepted discount or deduction was 30% but since the amendment to the Commonwealth's superannuation laws, the accepted deduction is now 15%.
I have also taken into account the gradual rising rate of compulsory superannuation contributions from 1 July 2013 to 12% by 1 July 2019

Loss of services

In her schedule of damages, Ms Wiggins has assessed loss of the deceased's services for herself and Tyson to when Tyson would have reached the age of 21 years.
Ms Wiggins' schedules also submit that it is reasonable to assess loss of services on the basis of eight hours per week until Tyson turns 12 and thereafter six hours per week until Tyson turns 21. Thereafter, it is submitted, the deceased would have provided services to Ms Wiggins estimated at four hours per week until he reached the age of 75 years, that is, 3 October 2057.
The defendant however in its schedule submits that loss of services should be assessed on the basis of five hours per week during the period in which the deceased would have provided services to both Ms Wiggins and Tyson, which the defendant submits would have been until Tyson reached 18 years of age.
I have earlier, in assessing loss of dependency, determined Tyson would probably have remained financially dependent upon the deceased's earnings until he reached the aged of 20 years. In relation to the assessment of loss of services, in my view it is unlikely the deceased would have provided any services to Tyson after he reached the age of 18 years even though Tyson would have remained financially dependent for a further two years. I therefore accept the defendant's submission that loss of services in respect of Tyson and Ms Wiggins should be assessed until Tyson turned 18.
Both parties submit that once the deceased would have ceased providing services jointly to Tyson and Ms Wiggins, he would have continued providing services to Ms Wiggins estimated at four hours per week. The plaintiff submits those services would have continued until the deceased reached the age of 75 years but the defendant submits 72 years is reasonable. I am of the view it is reasonable to assess loss of services for Ms Wiggins until the deceased would have reached the age of 75 years.
Both parties agree $25 per hour is a reasonable rate at which both past and future services should be assessed.
In my view, loss of services during the period in which the deceased would have provided services to both Ms Wiggins and Tyson, should be assessed on the basis of seven hours per week.
In assessing future loss of dependency I applied a discount rate of 10% taking into account the uncertainties regarding the deceased's future career in the underground mining industry and the income he would have earned. However, in relation to future loss of services there is less uncertainty and in my view, the usual discount rate of 5% should be applied in the assessment of future loss and services.
For the reasons I have explained in declining to award interest on past loss of dependency I make no award of interest on damages for past loss of services.

Past loss of services

7 x $25 x 207 weeks = $36,225
Plaintiff $36,225 x 67% = $24,270
Tyson $36,225 x 33% = $11,954

Future loss of services

1 August 2013 to 21 May 2025 (until Tyson reaches 18 years of age)
7 x $25 x 450.5 = $78,837 less 5% for contingencies = $74,895
Ms Wiggins 67% x $74,895 = $50,179
Tyson 33% x $74,895 = $24,750
2025 to 2057 years (32 years) (when the deceased would have reached the age of 75 years)
6% multiplier for 32 years 756.7
6% multiplier delayed for 12 years .497
4 hours x $25 x 756.7 x .497 = $37,607 less 5% for contingencies $35,727

Total

Ms Wiggins $24,270 + $50,179 + $35,727 = $110,176
Tyson $11,954 + $24,715 = $36,669

Summary

Past loss of dependency including superannuation

Ms Wiggins $152,579
Tyson $99,878

Future loss of dependency including superannuation

Ms Wiggins $706,776
Tyson $281,233

Past and future loss of services

Ms Wiggins $110,176
Tyson $36,669

Total

Ms Wiggins $969,531
Tyson $417,780

Worker's compensation payments

As noted above [102] the defendant has made worker's compensation payments to Ms Wiggins in the sum of $254,810. By s 92 of the Worker's Compensation and Injury Management Act 1981 the sum of $254,810 must be deducted from the amount of the judgment and reimbursed to the defendant.
The defendant has already paid the sum claimed for funeral expenses of $8,325 and I therefore award $8,325 for funeral expenses which must be deducted from the judgment sum

Legal costs of administering deceased's estate

Ms Wiggins' claims the sum of $5,683.50 being legal costs she has incurred with respect to the administration of the deceased's estate. Funeral expenses in the sum of $8,325 are also claimed. The defendant admits the funeral expenses claimed but denies the claim for legal costs in relation to the administration of the estate.
By s 5(1) of the Act damages may be awarded in respect of funeral expenses of the deceased person if the expenses have been incurred by the parties for whose benefit the action is brought. The expression 'funeral expenses' is not defined in the Act. In its natural and ordinary meaning the expression does not include the expenses incurred in relation to the administration of a deceased's estate. There is no express provision by which a person entitled to claim damages under the Act is entitled to be reimbursed in respect of legal fees incurred in the administration of a deceased's estate. I was not referred to any authority which supports such a claim. Although the claim was not abandoned, it was not forcefully put by Ms Wiggins. In my opinion, there is no basis upon which she is entitled to be awarded the legal costs claimed.
I reject the claim.

Fees of Public Trustee including Management Expense Ratio (MER)

It is not possible to assess the fees which will be charged by the Public Trustee in respect of the administration of the sum to be invested and managed by it on behalf of Tyson until that sum has been determined. I have now determined Tyson is entitled to an award of $417,780.
I will hear the parties further as to the further sum which should be awarded in respect of the fees that will be charged by the Public Trustee.
I will also hear the parties further in relation to costs.

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WIGGINS as Administrix of the Estate of DANIEL OWEN WILLIAMS (Dec) -v- BARRICK (KALGOORLIE) LTD [2013] WADC 138 (S)

CORAM: HERRON DCJ

HEARD: ON THE PAPERS

DELIVERED : 23 AUGUST 2013

SUPPLEMENTARY
DECISION :18 OCTOBER 2013

FILE NO/S: CIV 2 of 2010

BETWEEN: CARLIE MARIE WIGGINS as Administrix of the Estate of DANIEL OWEN WILLIAMS (Dec)
Plaintiff
AND
BARRICK (KALGOORLIE) LTD
Defendant

Catchwords:

Costs - Application for costs to be taxed without regard to limit prescribed by item 17 Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012

Legislation:

Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012
Legal Profession Act 2008 s 280(2)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: On the papers
Defendant: On the papers

Solicitors:

Plaintiff: Macdonald Rudder
Defendant: SRB Legal

Case(s) referred to in judgment(s):

Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)

HERRON DCJ: On 23 August 2013 I delivered written reasons for decision in this matter and judgment was entered for the plaintiff in the sum of $1,714,721 and for her son Tyson Williams in the sum of $470,921. Further orders were made granting the plaintiff leave to bring an application for special costs orders and for the filing of affidavits and written submissions, with the application to be determined on the papers. Pursuant to those orders the plaintiff brings this application seeking an order that her costs be taxed without regard to the limits prescribed by item 17 'Preparation of case for trial' of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (Costs Determination) and a further order that the defendant pay the plaintiff's costs of the application.
The application is made pursuant to s 280(2) of the Legal Profession Act 2008 which provides:
Despite subsection (1), if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do all or any of the following —
(a)order the payment of costs above those fixed by the determination;
(b)fix higher limits of costs than those fixed in the determination;
(c)remove limits on costs fixed in the determination;
(d)make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or assessed.
The principles of an application pursuant to s 280(2) of the Legal Profession Act are not in dispute. They are set out by the chief justice in Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S).
In determining such an application the court is required to consider:
(a)First, whether the applicant has a fairly arguable case that the bill to be presented to the taxing officer may tax at an amount which is greater than the limit that would be imposed by the relevant costs determination;
(b)Secondly, whether that inadequacy arises because of the unusual difficulty, complexity or importance of the matter.
In considering those two matters I should not usurp or anticipate the role of the taxing officer and, secondly, I should make an order that gives effect to the general principle of allowing the successful party to be compensated for their costs by the unsuccessful party. In addressing the first matter I am required to approach the matter as one of impression and not undertake a detailed evaluation of a draft bill for taxation.
The application is supported by a lengthy affidavit of David Griffith Lang sworn 30 August 2013 which largely contains submissions and opinions.
This action was commenced by writ issued on 30 April 2010. On 29 February 2012 a minute of proposed consent to judgment by which the defendant admitted liability was filed and judgment in terms of the minute was entered.
The action proceeded to trial before me on 8, 9 and 25 July 2013 in respect of an assessment of damages pursuant to the Fatal Accidents Act 1959. The evidence was completed on the second day and the action adjourned to 25 July for closing submissions which occupied no longer than half a day. The plaintiff called five witnesses and the defendant two. A large bundle of documentation including financial documentation and proof of wage rates and ranges was tendered. Neither of the first two days of the trial involved full days. The oral evidence of the plaintiff's witnesses was relatively brief as was the cross-examination of the defendant's witnesses. The factual issues were relatively straightforward. Written closing submissions with detailed calculations of damages for loss of dependency and loss of services were filed.
The plaintiff called one expert regarding economic conditions in the gold mining industry, the availability of employment in the industry and the prospects for promotion, working conditions in the gold mining industry, and the ranges of salaries payable. The expert prepared a written report which was tendered into evidence. The issues addressed by the expert were not complex.
The maximum allowance for preparation of the case is based on 120 hours work. In his affidavit Mr Lang states that based upon the recorded time by the plaintiff's solicitors he estimates 250 hours of time was spent in getting up the case for trial. He also estimates that the maximum which is able to be claimed under the scale, excluding disbursements, is in the vicinity of $123,767.46.
In my view it is not fairly arguable the scale limit is inadequate. The trial was relatively straightforward as was the evidence presented at trial. In my view the limit provided by the scale is adequate for the taxation of reasonable party and party costs.
Neither am I persuaded the trial was unusually difficult or complex. As I have already observed, it involved an assessment of damages under the Fatal Accidents Act for loss of dependency and services of the plaintiff and her son Tyson. Although it was necessary to undertake detailed analysis and calculation of the degree of dependency, there is no unusual complexity in that compared to the usual actions under the Fatal Accidents Act which come before this court. The assessment of damages involved an assessment of the deceased's projected earnings. The parties agreed the degree of dependency and there was therefore no need to undertake a detailed analysis and assessment of the respective past earnings of the plaintiff and the deceased. The parties also agreed that Table 9.1 in Luntz – Assessment of Damages for Personal Injury and Death (4th ed) was the appropriate method of assessing the degree of dependency. There was, for example, no need to analyse and assess the business or partnership records of the plaintiff and the deceased, or obtain forensic accounting evidence, which is not infrequently the case in Fatal Accident Act assessments which come before this court, and which can lead to unusual difficulty or complexity, to determine the degree of dependency.
The claim for loss of services was also relatively straightforward.
Further, given the agreement between the parties regarding the degree of dependency, and although an issue remained as to the proper measure of that degree of dependency, and without suggesting the work which the plaintiff's solicitors undertook in preparing for trial was unimportant, I am not persuaded that the work which was undertaken was of such importance that it justifies uplifting the scale allowed by the Costs Determination.
Accordingly, I dismiss the application and order the defendant pay the plaintiff's costs of the action to be taxed.
I also order the plaintiff pay the defendant's costs of the application.