Yorston v Hansen's Maintenance & Construction Pty Ltd

[1993] QCA 102

IN THE COURT OF APPEAL	[1993] QCA 102
SUPREME COURT OF QUEENSLAND

Appeal No. 184 of 1992

Brisbane
[Yorston v. Hansen's Maintenance and Construction Pty. Ltd.]

BETWEEN:

ELIZABETH YORSTON and SCOTT ANTHONY YORSTON
(an infant by his next friend ELIZABETH YORSTON) and
TIMOTHY YORSTON (an infant by his next friend
ELIZABETH YORSTON) and DANIEL JAMES YORSTON
(an infant by his next friend ELIZABETH

YORSTON)

(Plaintiffs) Respondents

- and -

HANSEN'S MAINTENANCE AND CONSTRUCTION PTY. LTD.

(Defendant) Appellant

The President
Mr Justice Pincus

Mr Justice Derrington

Judgment delivered 26/03/93

Separate reasons for judgment by the President, Pincus J.A. and Derrington J. Derrington J. agreeing with the order of the President. Pincus J.A. dissenting.

APPEAL DISMISSED, WITH COSTS TO BE TAXED.

CATCHWORDS:	DAMAGES - MEASURE OF APPEAL - Lord Campbell's Action - whether assessment of likely future earnings of deceased painter and discount of 20% for remarriage prospects should be disturbed.
Counsel:	Mr S.C. Williams Q.C. with him Mr R.F. King-Scott, for the appellant Mr P. Keane Q.C. with him Mr P.E. Smith, for the respondents
Solicitors:	Messrs. Gadens Ridgeway for the appellant Messrs. Gileshenan and Luton for the respondents
Hearing Date(s):	12/03/93

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 184 of 1992

Brisbane

Before The President
Mr Justice Pincus
Mr Justice Derrington

[Yorston. v. Hansen's Maintenance and Construction Pty. Ltd.]]

BETWEEN:

ELIZABETH YORSTON and SCOTT ANTHONY YORSTON
(an infant by his next friend ELIZABETH YORSTON) and
TIMOTHY YORSTON (an infant by his next friend
ELIZABETH YORSTON) and DANIEL JAMES YORSTON
(an infant by his next friend ELIZABETH

YORSTON)

(Plaintiffs) Respondents

- and -

HANSEN'S MAINTENANCE AND CONSTRUCTION PTY. LTD.

(Defendant) Appellant

REASONS FOR JUDGMENT - THE PRESIDENT

Judgment delivered 26/03/93

This is an appeal against the quantum of damages awarded to the respondents in a dependency claim pursuant to the Common Law Practice Act 1867 as amended in respect of the death of the respondents' husband and father on 2 February 1988.

On 6 August 1992, the trial judge awarded the first respondent, the widow of the deceased, $210,346.00 and awarded the other respondents, the infant children of the deceased, $55,148.00, $65,069.00 and $71,400.00 respectively.

The deceased was aged twenty-five years at the time of his death. Although he had his own painting and decorating business, he was temporarily employed for wages at that time.

The widow was also aged twenty-five years at the time of death and was thirty years of age at the time of judgment. The eldest son, the respondent, Scott Anthony Yorston, was four years old at his father's death and nine years of age when judgment was delivered. The second son, Timothy David, was almost two years old at his father's death and six years at judgment. The youngest son, Daniel James, was born posthumously some thirteen days after his father's death and was four years of age at judgment.

One ground of appeal related to Her Honour's assessment of the future earnings of the deceased but for his death. It is convenient to set forth lengthy extracts from the careful reasons for judgment.

Her Honour said:
"Deceased's likely income to trial

The business tax returns are in evidence as are savings bank records. The deceased and Mrs. Yorston had conducted a joint savings account which had $16,367.67 in it at the deceased's death. The business had a cheque account into which all moneys earned were deposited and payments made from it. Surplus moneys were transferred to the savings account. The account was opened in March 1985 with a deposit of $6,145.26. Its highest amount was some $22,000 about a year prior to the deceased's death. This account was the source of moneys for the payment of household living expenses and the basis of saving for a deposit on a home.

Mr. Keith Cooper, a partner with Pannell Kerr and Forster, chartered accountants has calculated the tax which was payable on the taxable income of the business which he has set out in Appendix 1 to ex. 10. This indicates that for the years ended 30th June, 1985, 30th June, 1986 and 30th June, 1987 income after tax was $10,379, $16,047 and $17,099 respectively. The business made use of the prescribed payments system for paying tax resulting in a tax rebate in the years under consideration. The operating profit earned by the partnership for the seven months ending the 2nd February, 1988 was $7,978 before tax. Mr. S. Williams Q.C. for the defendant submitted that if calculated on a whole year basis it would be $13,676 and this indicated that the business was in decline during this period. Mrs. Yorston was unable to agree and, indeed, seemed puzzled that it was though to be so (t/s p.24 l.34; t/s p.26 l.4). Mr Cooper would not accept in cross-examination that the seven months' figures indicated that the business was in decline. He has had considerable experience in the building industry. The irregular receipt of payments per

month as shown in the previous year's tax returns under the prescribed payments schedule would indicate that indeed there was no pattern in the monthly receipt of moneys, for example, in May and June of the 1985/86 year fifty per cent of the total year's receipts were received, whilst in the 1986/87 year August, September and October were the best months.

Mr. Thistlewaite was the deceased's employer at his death and had employed him on numerous occasions for wages and as a subcontractor in the specialist field of commercial wall coverings. He described the deceased as "my best man without a doubt, or equivalent to any tradesman I have ever seen" (t /s.p.51 l.19). He observed that the deceased had a good manner with those whom he had to deal professionally. He was of the opinion that it takes seven to ten years to build up a good business and to get continuity of work with clients. Mr. Thistlewaite had considered retiring from his business in Brisbane within two years of 1988 and had offered it in a general way to the deceased and another tradesman. The deceased had expressed interest. In the event the business has not been sold but has been run down. When asked in cross- examination why he had not sold it as a going concern Mr. Thistlewaite said:-

`You have got to find the person with the right expertise. There is only two really major wallpaper firms in Brisbane that specialise in wall coverings and specialised finishes. That type of person is very difficult to find and what is more I can't inflict just anybody on my clientele. It would be useless to a person without the expert knowledge to carry out the business because they just couldn't carry it on.'

It was suggested that the deceased had looked for a wages job for he reason that the business was declining. Mr. Thistlewaite's explanation seems most likely, namely that a third baby was due immediately and that the deceased had just finished one job and that since self employment entailed quoting and booking work in the evenings and weekend work, family time and a regular wage was important to the deceased at that time. Mrs. Yorston said that he had a job to go to the week he started at the Expo site but it was unnecessary to start that job immediately (t/s. p.25 l.25).

The defendant called a number of representatives from commercial painting firms. Those firms were not in the same field as the deceased's line of business being largely big commercial painters whilst the deceased was a specialised wall coverer and domestic painter. However, they confirmed that business has been very poor in the commercial painting field starting in 1989 and worsening since then. The domestic and domestic repaint market has survived the economic depression best and the big firms are competing in the market place with small businesses.

Mr. Rossi noted that since his firm had higher overheads than smaller firms it had difficulty in competing successfully against the small one/two man business and said that his firm had recently lost three tenders to one/two man operations for the painting of reasonably sized homes. The three witnesses called by the defendant said that when reducing staff the painters with the least performance skills were the first to go rather than that the last person employed should go. Those facts and matters suggest that it would be unsafe to assume that the deceased's business was declining at the date of death and would be likely to do so in the future.

Mr. Cooper has calculated that the average annual increase of taxable income from 1985 to 1987 in the deceased's business had been twenty-eight per cent on a cumulative basis. He has made growth predictions for the business for the following years to 30th June, 1992 based on his knowledge of the industry, from general knowledge of the economy and building activity statistics and the knowledge that the deceased operated a one-man business (t/s. pp.77 et seq.). Mr Cooper has predicted a 20 per cent growth for the 1988 financial year (notwithstanding that it would have been necessary for the business to receive over $15,000 in the remaining five months of that financial year, see t/s/ p/85 l.30); 17.5 per cent for the 1989 year; 15 per cent for the 1990 year; 7.5 per cent for the 1991 year and 0 per cent for the 1992 year. In his report (ex. 10 (pp.1-3 and appendices 1, 2, & 3 only admitted), at p.3) Mr. Cooper explains these figures as follows:-

`I would not expect that this rate of increase would continue permanently, but it seems Mr. Yorston was able to increase the volume of business in the initial stages of setting up his business. In projecting the income that the family could have expected to receive for the year ended 30th June 1992, I have increased on a cumulative basis the 1987 results by using a growth percentage of 20% for the 1988 year, 17.5% for the 1989 year, 15% for the 1990 year, 7.5% for the 1991 year and 0% for the 1992 year. The assumption made here is that the business would have continued to grow but at a slower rate given an average period. The building industry was buoyant in the 1988 and 1989 years, thus continued growth of the business was likely to be high for those years. However, the building industry started to decline in the 1990 year and was in a depressed state for the 1991 and 1992 years, thus a declining rate of growth would be expected. (Because of Mr Yorston's death in February of 1988 we have not used the 1988 actual figures because a full year result was not available).

These conclusions are supported by exs. 7 and 9.

Mr. Cooper has set out in Appendix 3 the calculations which he has performed using those projections as to the growth of the business from 1988 to 30th June, 1992 and deducted the relevant tax on a 50% partnership basis which is appropriate. They produce the following amounts:-

Year Ended	Income
30th June	After Tax
1988	20176
1989	23145
1990	27058
1991	29109
1992	29288 $ 128776

The defendant has submitted that it was more likely that the deceased would have sought his income increasingly from wages on the assumption that the business was declining in 1988 and would have continued to do so. The evidence as to wages is in ex.6 together with the oral evidence of Mr. Rossi. Mr. Williams submits that $350 net per week is the appropriate figure on the basis that the deceased would have continued to operate his business but at a lesser return than the relevant award rate current from time to time plus allowances. As I have indicated I do not consider that the figures for the seven months to February 1988 together with the savings account records justify taking this course. I adopt the calculations set out in Mr. Cooper's report being of the view that the other evidence to which I have referred justifies and supports the use of those percentage growth rates.

That results in a total loss of $128,779 to 30th June, 1992 and with the addition of one-twelfth of the last twelve months' figures results in a loss to judgment of $131,216. Mrs. Yorston says that her husband was very healthy. Both his parents and all his eight siblings are alive and in good health. That figure should however be discounted to reflect the uncertainties which must necessarily surround the business during that period and I round that figure off at $125,000."

Later, she continued:

"On the predicted income from the business for 1992 of $29,288 the dependency amount is $21,966 per annum. That is an amount of $422 per week. No evidence was adduced that the deceased would not have lived to age 65 years and the life tables support that he would. I will presume that he would have worked at his business until that age. The present value of that sum using the three per cent

tables is $480,194. There are many reducing contingencies which must be considered. The deceased's business may not have prospered throughout the period. He may have tapered it off as he became older and had fewer responsibilities to his family. He may have taken time off to qualify as a trade teacher and his wife may have assumed the providing role. She may in any event have worked for remuneration and thus diminished her dependency and that of the children upon him. There are, of course, the other usual contingencies of life such as accidents, failure of marriage, other wider family demands upon his financial resources. Since he was so young when he died it is appropriate in my opinion to take greater account of these many contingencies than if he had been an older man.

Mrs. Yorston gave some little assistance to her husband in running the business and as I have mentioned. That contribution is not capable of arithmetical calculation. It must be regarded as having given the deceased a little more time at the skill side of the business than he would otherwise have had. I have taken that into account in discounting the future sum. The positive contingencies are that the deceased's business may have flourished to a greater extent than predicted and he may have worked beyond 65 years.

I propose to reduce the future dependence sum by 25 per cent to take account of these contingencies. That leaves a figure of $360,145."

It was submitted for the appellant that the evidence showed a decline in the business. Two reasons were given for this assertion, namely, that the extrapolation of income earned during the financial year in which the deceased was killed showed a reduced income for that year, and that there had been a diminution in the joint savings account of the respondent widow and the deceased over that period for which the only possible explanation was a decline in income from the business.

The specific criticisms advanced for the appellant were

summarised in its written outline in the following paragraph:

"Mr. Cooper's assessment of lost income was based on broad considerations and general statistics and took no account of:-

(i)  the actual performance of the business on a year to year basis ...;

(ii) the deceased's receipt of wages at the time of

his death ...;

(iii) the reasons the deceased took paid employment

...;

(iv) the draw downs on the family savings ... and the

reasons for that course;

(v)  the actual profitability of painting firms of various sizes ...;

(vi) the effect of the recession upon the painting

industry."

There is nothing to indicate the her Honour overlooked any of the points made by the appellant. The appellant's approach substantially seeks to reargue matters which were properly a matter for the trial judge's determination and there is a body of evidence which provides general support for her views, including the evidence of the respondent widow and Mr. Cooper, evidence as to Mr. Cooper's experience and expertise, evidence as to the deceased's skill and competence and evidence as to the opportunities available to the deceased despite the difficult economic conditions.

The main difficulty which we have with this aspect of the matter concerns her Honour's unqualified reliance upon the evidence of Mr. Cooper. On scrutiny, his figures are substantially based on broad, subjective opinions derived from little but his general knowledge and experience. It might reasonably be thought that they are at risk of being optimistic. On the other hand, there was little to controvert what Mr. Cooper said and he adhered to his views resolutely in the course of cross-examination. The trial judge had the considerable advantage of seeing the witnesses, including the respondent widow and Mr. Cooper and there is no sufficient justification for this Court to interfere.

The other complaint made by the appellant concerned the trial judge's assessment of the remarriage prospects of the respondent widow. Once again, it is desirable to set out what was said by the trial judge:

"Mrs Yorston is now aged 30 years. She impressed as a
woman of considerable self discipline and determination.
She gave careful and honest answers to the questions in
cross-examination and in the process demonstrated her
undoubted intelligence. She is well-groomed and
attractive. In this jurisdiction it is necessary to make
personal observations of the widow in a manner which may
be considered distasteful but it is a necessary aspect of
a loss of dependency claim, see James v. Schiffman (1971)
124 CLR 303 and Elford v. F.A.I. General Insurance Co.
Ltd. unreported decision of the Court of Appeal of the
Supreme Court of this court No.149 of 1985 delivered 1st
April, 1992. Although disclaiming any present intention
to remarry, being unwilling to expose herself to the pain
of loss again, over the past 12 months Mrs. Yorston has
formed a relationship with a divorced school teacher who
teaches at Mornington Island whom she sees during the
school holidays either in Brisbane or during visits with
her children to Mornington Island. A statistical table
indicating the likelihood of remarriage of widows at
various ages has been received into evidence. The Court
of Appeal in Elwood v. F.A.I. General Insurance Co.,
supra., suggests at p.3 that some attention should be paid
to such statistics. Considering that evidence and Mrs.
Yorston's own circumstances it is likely that in due
course Mrs. Yorston will feel comfortable with the notion
of remarriage and will do so. I would expect that it
would not be for some years. Although Barwick C.J. held
to the contrary in James v. Schiffman, supra., at p.306,
with respect, commonsense and principle must dictate that
the prospect of remarriage must be of a provident
marriage. The "freeing" of a widow for remarriage cannot
be an item of value in itself in the context of a
dependency claim. That the marriage, brought to an end by
the death of a husband, might not have survived in the
normal course of life is but one of the contingencies to
be considered but the remarriage can only be considered as
a prospect if it might cancel out the loss of dependency,.

From my observation of Mrs. Yorston she has a great sense of duty to her children and a proper regard for her own emotional well-being such that any marriage which she might enter will be beneficial. Walsh J. in James v. Schiffman, supra., noted at p.316:-

`In a case such as the present one in which the widow
is still young and had no physical incapacity for
marriage it would not be correct in my opinion, to
make no allowance or only a nominal allowance for her
capacity to marry."

On the other hand, Mrs. Yorston has the care of three young children which may operate against the likelihood of an early remarriage as it may not suit every man who was attracted to marriage with Mrs. Yorston to assume the considerable responsibilities of three children."

Later, her Honour said:
"The family had taken few paid holidays prior to the death

of the deceased. Since then, they have had two visits to
Mornington Island paid for by Mrs. Yorston and other
smaller outings."

Later again, after reference to the "usual contingencies

of life such as accidents, failure of the marriage," etc., her
Honour continued:

"Having considered the cases referred to me by Mr. Hinson concerning a widow's prospects of remarriage, namely, James v. Schiffman, supra., Dominish v. Astill (1979) 2 N.S.W.L.R. 368, and Lamb v. Southern Tablelands County Council (1988) Aust. Torts Reports 80-220, the statistical tables, and the matters concerning Mrs. Yorston to which I have earlier referred, in my view a proper allowance for the prospect of remarriage is 20 per cent.

According to the appellant, the trial judge appears to have given little weight to the respondent widow's evidence of her present relationship with an unnamed Mornington Island schoolteacher.

It was also submitted that her Honour had placed little, if any, weight on the remarriage statistics admitted by consent as exhibit 8, which revealed that the average duration of widowhood for a woman of the respondent widow's age at the date of widowhood is 6.6 years, whereas a 20% discount on dependency "is in effect an allowance of dependency for 31 years from the date of widowhood."

In summary, it was argued for the appellant that there was, on the evidence, a high prospect of remarriage and the trial judge should have proceeded on the basis that the respondent widow would have remarried at least within ten years and probably earlier.
It is necessary to consider whether, and if so how, the trial judge's assessment that the respondent widow has a 20% prospect of remarriage can be reconciled with the following statement:

"... it is likely that in due course Mrs. Yorston will feel comfortable with the idea of remarriage and will do so. I would expect that it would not be for some years."

The respondent widow's evidence is of considerable assistance in this regard. For example, there are the following questions and answers.

"You seem to have deep feelings towards this man ? --

Under the circumstances, yes.

...

Do you feel that he returns your feelings?-- Yes.

Has he offered you any support or financial assistance since your husband's death?-- No.

Have you sought any?-- No.

You are not in need of the support or financial assistance from him?-- I wouldn't, no.

You don't rule out remarriage?-- At the moment I do.

Why is that?-- For several reasons. I have the boy's welfare to consider as far as a relationship goes. I have their education to pursue. I have my own education to continue - to maintain my own financial and emotional independence now, and I am not - since Tony's accident I wouldn't - I'm cautious about having to experience that kind of loss again.

Your feelings now in that respect - the last respect - are obviously less than they were, for example, when you gave the statement?-- Yes.

You have come to accept?-- But it is a fear that exists now that didn't exist before my husband died.

This gentleman has been substantially integrated into your family through long periods at your home during holidays?- - The Christmas holidays just gone were the longest period that he spent in our --

And your children appear to have been integrated into his family through going to Gladstone with him?-- I wouldn't say integrated into his family. I maintain a separate identity."

Although the statistical evidence is useful, the question of provident remarriage or other substitute support must be answered by reference to the particular individual. Both the respondent's present relationship and her family of small children make it unlikely that she will marry a different person in the foreseeable future and there is credible evidence, accepted by her Honour, that she does not have any present intention of marrying the other party to that relationship either now or in the future. It will be many years before the children have grown up and left home.
As time passes, the respondent widow will likely become more independent and established in her ways. There are lifestyle choices available to her and as she grows older she may well prefer not to commit herself in a dependent relationship or, as her Honour thought, she may choose remarriage in due course.

The discount factor selected by the trial judge by reference to the respondent widow's prospects of provident remarriage or other financial support involves, like a finding on a question of apportionment, a finding upon a "question not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different mind's: British Fame (Owners) v. Macgregor (Owners) (1943) AC 197 at 201. Such a finding, if made by a judge, is not lightly reversed." Podrebersek v. Australian Iron

and Steel Pty. Ltd. (1985) 59 ALJR, 492, 494. Although

favourable to the respondent widow, there is no legitimate basis upon which it can be concluded that her Honour's finding was in error.

Accordingly, the appeal is dismissed, with costs to be

taxed.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 184 of 1992

Brisbane

Before The President

Mr. Justice Pincus

Mr. Justice Derrington

[Hansen's Maintenance v. Yorston & Ors]

BETWEEN:

ELIZABETH YORSTON and SCOTT ANTHONY YORSTON
(an infant by his next friend ELIZABETH YORSTON) and
TIMOTHY YORSTON (an infant by his next friend
ELIZABETH YORSTON) and DANIEL JAMES YORSTON (an

infant by his next friend ELIZABETH YORSTON)

(Plaintiffs) Respondents

- and -

HANSEN'S MAINTENANCE AND CONSTRUCTION PTY. LTD.

(Defendant) Appellant

JUDGMENT - PINCUS J.A.

Judgment delivered 26/03/1993

This appeal challenges an award made in a dependency claim in respect of the widow and children of a young man who was a house painter and decorator. The total award was a little under $400,000 and the appellants say that involved too generous an assessment of the financial loss resulting from the death, which took place on 2 February 1988.

The appeal is based principally on two submissions. The first is a criticism of the judge's having acted on the evidence of Mr. K.B. Cooper, an accountant who gave evidence as to what were, in his opinion, the earnings the deceased would have been likely to make from the date of his death until the trial. Ancillary to that is a contention that the judge was in error in not giving any effect to the evidence of three witnesses called by the appellant on the same topic.

The case is one in which the judge had the difficult task of making a finding as to the earnings the deceased would have made, during a period in the latter part of which there was, according to the appellant's case, a serious slump in the painting business.

Mr. Cooper said that in the course of his professional career, he had had to examine financial statements for a variety of businesses. He did not say that he had made a study of or examined any figures relating to small house-painting businesses. Apart from his general experience, the accountant said that he had had regard to "economic information ... available by virtue of statistics", average wage rates during the relevant period, the consumer price index, the award rate for teachers at Ithaca TAFE College and building industry statistics. As to the last, Mr. Cooper said that the "value of work done is the one that I believe is most relevant to this particular situation" and he supplied statistics of the value of building work done in Australia; the best figure for the respondent was that in 1988 there was an increase of 49.4% over the previous year's total. Part of Mr. Cooper's evidence reads as follows:

"Well, ultimately does the derivation of the percentage figures which have been adopted depend on an exercise of some professional judgment upon the building industry's statistics and other economic indicators to which you had regard?--Well, I believe so".

"Other economic indicators" appear to have been the official
price indices.

It seems clear that Mr. Cooper took into account, also, what he saw as a substantial rise in the deceased's earnings in the few years before he died. In the last three complete financial years before death, terminating on 30 June 1987, post-tax earnings were $10,379, $16,047 and $17,099. The increase from the 1985 year to the 1986 year is striking; but as the appellant's counsel pointed out, it appears from the evidence that about half the income in the latter year was from wages. Further, in the seven months immediately before the death the earnings were at a substantially lower rate. It was argued on behalf of the respondent that if one has regard to gross rather than nett earnings the difference is not so great;

but on either view there was a drop in earnings from 30 June 1987 to the date of death. However, Mr. Cooper's figures assumed a 20% increase in earnings from the 1987 financial year to 1988, the gross taxable income assumed for the latter year being $23,716 - about $10,000 more than would be given by a calculation simply projecting the seven months earnings over a full year. In explanation of this, Mr. Cooper said that the seven-month period was not "useful" because it was not a full year, but that seems to me an unconvincing explanation for ignoring it, as he did. When asked why he worked on a 20% figure for growth in the 1988 year, Mr. Cooper mentioned in his answer that the value of the work done in that year increased by 49.8%, referring of course to figures relating to the Australian building industry as a whole. The matter has some importance, because the span of years available is short, and of course the seven-month period in question is that immediately before death.

In her reasons, the judge referred to the 20% assumed increase in 1988 and to Mr. Cooper's evidence about the apparent decline in business shown by the seven-month figures for that year. Her Honour remarked:

"The irregular receipt of payments per month as shown in the previous years' tax returns under the prescribed payments schedule would indicate that indeed there was no pattern in the monthly receipt of monies ...".

The factual accuracy of that is not in dispute, but what is not so clear is that it was right for Mr. Cooper to ignore the fact of the lower seven months' earnings completely, as he apparently did, working, in preference, on a figure based principally on the level of building activity in Australia.

The only concrete evidence as to what was in fact earned during the relevant year should, in my respectful opinion, have been given weight. Many businesses have irregular earning patterns, from month to month or indeed from year to year, which do not necessarily reflect changes in basic earning power; that is not a good reason for not taking into account the figures of income in fact earned, or preferring to them deductions from the general level of earning in the relevant industry. The irregularity to which her Honour referred is a good reason for treating the 1988 earnings with caution, but at least as much caution was justified in making deductions from Mr. Cooper's projections which were, as the President has said in his reasons, based on broad, subjective opinions. It should also be noted that Mr. Cooper's reason for treating the incomplete 1988 year as unrepresentative was that he assumed the deceased would have taken time off at Christmas - which was not the reason her Honour gave for accepting Mr. Cooper's view of the 1988 year.

The three witnesses called on behalf of the appellant were all local paint contractors employing a substantial number of people. Each said, in effect, that painting business had slumped. Mr. C.G. Baker, a principal of a big painting firm, gave evidence to the effect that work had turned down in 1989 and had since got progressively worse, although commercial work had fallen off more badly than that in the domestic field.

That qualification is of assistance to the respondent, since the deceased's business was house-painting. Mr. R.L. Pye said his work was mainly domestic, that work was at the time of his evidence (July 1992) very slow, that there had been "an increase in the people in the domestic field" and that his firm would do small jobs ("we get any work we can"). Mr. J.G. Rossi gave evidence to rather similar effect, adding that his firm had started to do domestic work because of lack of commercial work and that it had found there was presently competition in the domestic field from other companies similarly placed. Each of these three witnesses gave evidence of a substantial drop in employment in their firms, Mr. Baker's firm being the worst, from about 130 in 1989 to "40 odd" in July 1992.

It was not suggested to any of these witnesses that the picture they gave was exaggerated, nor that their experience was for some reason unrepresentative of that in the local painting industry. Both Messrs Baker and Rossi thought the downturn had begun in 1989. In that year, Mr. Cooper assumed an improvement in the deceased's business of 17.5%, in the following year 15% and in the 1991 year 7.5%; he took it that the 1992 year would have produced the same income as the 1991 year.

Her Honour referred to the evidence of those three witnesses, but there is nothing to suggest that they had any influence upon the decision of the case; the judge adopted Mr. Cooper's projections exactly. There was some criticism of the judge's treatment of the evidence of the three painting contractors, insofar as it contained the remark that the witnesses:

"confirmed that business had been very poor in the commercial painting field starting in 1989 and worsening since then".

In my respectful opinion, the criticism is justified; the witnesses' evidence helped the appellant's case more than that.

To take Mr. Baker as an example, he estimated the drop in commercial work since 1989 as being at least 40% to 50% and in the domestic field as being about 30%. If the three witnesses were to believed, a substantial drop in demand for painters must surely have tended to affect the deceased's business, not least because it brought about greater competition in the domestic market by those substantial firms, like Mr. Baker's, which could not find enough commercial work to do.

When one considers the four witnesses on the point being discussed as a group, three were actually engaged in the painting business and one was not. The three gave evidence of their direct experience in the local market for domestic painting over the relevant period, whereas one relied on statistics dealing with the business of building in Australia as a whole. It is desirable that appellate courts be restrained in reviewing factual findings, but it is also desirable that appellants be accorded the right of appeal on fact as well as law to which the law entitles them. The judge did not say or imply that she rejected the evidence of any of the three witnesses and in my respectful opinion the reasons given for failing to give any effect to their evidence do not justify the course taken.

There is, from time to time, further definition of the extent to which it is permissible to interfere with factual conclusions of the primary judge. The tendency is still to lay emphasis upon the necessity of not interfering with a view apparently based on the demeanour or credibility of a witness:

Brunskill v. Sovereign Marine & General Insurance Co. Ltd.

(1985) 59 A.L.J.R. 842 at 844, Baumgartner v. Baumgartner (1987) 164 C.L.R. 137 at 145-6 and Dawson v. Westpac Banking Corporation (1991) 66 A.L.J.R. 94 at 99, 105, 106. To some extent, the conclusion which the primary judge came to here must have been based on her Honour's impression of Mr. Cooper's credibility; she accepted his figures completely. But the Court's task in reviewing the judgment, one of a kind which principally involves the resolution of factual issues, is not properly performed if arguments against the judge's reasons may be simply defeated by pointing to the fact that credibility and demeanour may well have played a part.

Circumstances other than those I have mentioned support the view that the deceased's painting business was not, as Mr. Cooper apparently thought, prospering greatly in the few years prior to his death. The deceased appears to have earned substantial amounts of his income in 1986 and 1987 working for wages, and was working for wages at the time of his death. His then employer, a Mr. T.H. Thistlewaite, in discussing the circumstances in which the deceased came to be working for wages then, said that he thought the deceased wished to spend more time with his family and added:

"... Tony was only in his infancy of his business and at that stage in your business you can't guarantee continuity of work ...".

Apart from that, Mrs. Yorston gave evidence to the effect that she and her late husband were making plans for him to go out of business; they intended that the deceased should study to become a trade teacher at T.A.F.E.

The principal point is that there was, in my opinion, no reasonable justification in the evidence for awarding damages, as her Honour did, on the basis that there would have been substantial increases in the income of the deceased's painting business in all but the last of the years between the death and the trial.

On the figures given by Mr. Cooper and accepted by the judge, the deceased's income after tax would have increased from $20,176 in the 1988 year to $29,288 in the 1992 year. Although it is, in my respectful opinion, impossible to uphold her Honour's acceptance of Mr. Cooper's projections, mathematical precision in replacement of those figures is impossible. I would reassess dependency on the assumption that earnings for the 1992 year after tax would have been $24,000 and the average post-tax earnings over those five years $22,000. The difference in the ultimate outcome is, as will appear, substantial enough to necessitate an adjustment of the award.

It is convenient to leave discussion of the consequences of my view about likely earnings until the question of the allowance for the prospects of remarriage has been dealt with.

Looking at the matter broadly, an allowance of 20% of the amount the judge calculated for future loss, for the prospects of remarriage in respect of a widow with three young children seems by no means unreasonable. The only difficulty about it, in my view, is that the judge thought it probable that the widow would remarry and it was suggested that this does not reconcile well with the proportionate allowance made. Mr. Williams pointed out that the table of remarriage rates tendered by consent indicated a relatively short period of widowhood, on the average, at the age of 30 (the widow's age at trial). The period given is 7.5 years, but that obviously is only the figure for those who in fact remarry. The judge said that she would not expect remarriage to occur "for some years" and referred to the necessity of caring for the three young children as operating against the likelihood of an early marriage.

The judge, correctly, took into account the table of average remarriage rates and plainly did not treat the widow as a person peculiarly unlikely to remarry. It may seem at first sight a little puzzling that a 20% allowance only was made for the prospect of remarriage, particularly in view of the evidence of a current relationship and the finding that there would probably be remarriage. Nevertheless, I am in respectful agreement with the President's conclusion that there is no sufficient ground for interfering with the judge's opinion on this point.

To return to the issue on which, in my opinion, the appeal should succeed, the principal effect of the reduction in the amount on which dependency is calculated from $29,288 per annum to $24,000 per annum is to bring the loss of future dependency down from $295,732 to $243,712, discounting in the way the judge did. The figure for income up to trial, again making discounts in the same proportion, is $80,018 instead of $93,750 as set out in the reasons. Then adding in the sum of $656, being additional past loss, and deducting the gain to the estate of $4,750, the total is $319,636 instead of $385,388 - a reduction of $65,752. The judge allowed sums totalling $16,575 for interest and Public Trustee charges and I would not alter those.

Therefore, I would allow the appeal so as to give judgment in the total sum of $336,211. I would distribute the damages to Mrs. Yorston and the three children in the same proportions as in the judge's reasons, subject to giving the parties an opportunity to make submissions on that subject.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 184 of 1992

Brisbane
Before
The President
Mr Justice Pincus
Mr Justice Derrington

[Hansen's Maintenance v. Yorston & Ors]

BETWEEN:

HANSEN'S MAINTENANCE AND CONSTRUCTION PTY. LTD.

(Defendant) Appellant

- and -

ELIZABETH YORSTON and SCOTT ANTHONY YORSTON
(an infant by his next friend ELIZABETH YORSTON) and
TIMOTHY YORSTON (an infant by his next friend
ELIZABETH YORSTON) and DANIEL JAMES YORSTON (an

infant by his next friend ELIZABETH YORSTON)

(Plaintiffs) Respondents

JUDGMENT - DERRINGTON J.

Delivered this 26th day of March, 1993.

I have had the advantage of reading the judgments of the President and Pincus J.A. It is unnecessary to recapitulate the facts and the issues and it is convenient to go directly to those matters where there is a difference.

There was evidence that the appellant was an excellent tradesman in the top order of his calling and with some fairly unique skills. While this is a common description of injured litigants or deceased breadwinners so that there is room for some caution if not cynicism when it is said, yet if it is accepted by the trial Judge who hears the witness, there is no reason why this court should reject it; and once accepted it must be accepted in full and given proper weight in its proof of other matters.

The deceased undoubtedly had a small business with few overheads so that he would have been well equipped to compete with larger firms, particularly for the lower-range market where he found most of his business; and because of the relatively low cost of such work it might be expected to be less diminished in volume than the more expensive range.

Because in a number of serious respects his business differed from those of the trade witnesses called for the defence, it may well be that the learned trial Judge accepted their evidence as to their businesses but found it of little value in assessing the situation of the deceased's business because they were not comparable. Again while with respect I may well have come to a different view, had I been the trial Judge, I cannot say that the view adopted was wrong.

In order to complete the picture of the deceased's earning capacity, it must be added that he was sought for employment by other contractors because he possessed the fairly uncommon skill in one field referred to above. This should have provided him with greater flexibility because by fitting his own contracts in with this employment he should then better have been able to keep fully occupied one way or the other.

This helps further to distinguish him from the defendant's witnesses.

I share the discomfort of the other members of the court in the thinness of the evidence supporting the exercise of Mr Cooper, the accountant called for the plaintiff, but if the defence evidence was regarded as selectively confined to a particular area of the relevant business so that it missed the mark, there was no evidence other than Mr Cooper's to consider.

This does not mean that it has to be accepted, but if it is accepted by the trial Judge it is difficult to say that it is wrong, especially when it is uncontradicted. However, it is of some consequence that if the comparable rates of increases over the relevant years adopted by Mr Cooper are set aside for a moment and the focus is directed to the actual yearly earnings which he projects, the results are far from unreasonable for the expected earnings of a young man of this capacity, motivated by an enlarging family, and having a business which would ordinarily be expected still to be in its growing stage.

One obvious answer to the apparent paradox of this moderate projected earning rate and what might be regarded as rather extravagant projected rates of increase to achieve them lies in the very low rate of actual earnings of the deceased at the commencement of the period covered by the exercise. This suggests that there certainly was room for rapid improvement whilst still achieving only an acceptable, if somewhat high rate at the end. The point is that for these reasons it is again difficult to find error below in adopting what is after all a fairly acceptable result for what may have been expected of the deceased, despite what one may think of Mr Cooper's reasoning on the one side or the speculation on the figures advanced by the other side.

The discounting adopted to Mr Cooper's final figure was very generously low, being little more if any than the usual allowance for the contingencies of life. This makes little allowance for Mr Cooper's obvious adoption of the best results for the plaintiff in his selection of factors within the tenable range for use in his exercise, or for the chance that the projections, which after all were speculative, would not have been consummated. While I would not have adopted such a discount rate, it is still within the permissible range, if barely so.

When all these matters are accumulated, they lead to a significant difference from any award I may have made, but because all the cumulative factors are each supportable, there is no valid reason to disturb the result.

On the issue of the discount of twenty per cent adopted in respect of the contingency of remarriage, it might be observed that this figure is in keeping with the standards set for very many years for circumstances such as these.

Only a probability of remarriage after some years was found. This reduction factor must be discounted before it is applied to any sum because it is not to benefit the widow for some years. Further, apart from the chance that it would not occur, further allowance must be made for the chances that it might not be provident and that it might not endure. The arguments to the contrary presented on the appeal were not valid.

Otherwise I agree with the reasoning of the President and his conclusions.