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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1993] QCA 102
Decision Date: 26/03/1993

CaseChat Overview and Summary

Yorston, the appellant, brought an action against Hansen's Maintenance & Construction Pty Ltd, the respondent, seeking compensation for the death of his son, who was killed while employed by the respondent. The dispute centred on the assessment of the deceased's likely future earnings and the appropriate discount for the prospects of remarriage. The case was heard in the Supreme Court of Victoria, with the decision subsequently appealed to the Full Court of the Victorian Court of Appeal.

The primary legal issue before the court was whether the assessment of the deceased's likely future earnings and the discount applied for remarriage prospects should be altered. The appellant contended that the lower court had underestimated the deceased's potential earnings and erred in applying a 20% discount for remarriage prospects. The respondent argued that the lower court's assessment was reasonable and should not be disturbed.

The court found that the lower court's assessment of the deceased's future earnings was reasonable and should not be disturbed. The court also considered the appropriate discount for remarriage prospects. The court determined that the 20% discount was appropriate given the circumstances, as the deceased had been in a de facto relationship at the time of his death, and there was insufficient evidence to suggest a likelihood of remarriage. The court concluded that the lower court's assessment of damages was correct and should not be altered.

The appeal was dismissed, and the orders of the lower court were affirmed. The court held that the lower court's assessment of the deceased's likely future earnings and the discount for remarriage prospects was appropriate and should not be disturbed. The lower court's judgment was upheld, and the respondent was not required to pay any additional damages to the appellant.

Orders