HEARD : 17 - 18 FEBRUARY 2025; FURTHER WRITTEN SUBMISSIONS BY DEFENDANT ON 28 FEBRUARY 2025

BETWEEN : ISAAC GEOFFREY MATHER BY HIS NEXT FRIEND ELKE LUNN

Mother of two young boys killed in motor vehicle accident caused by negligent driving of her husband and the father of the boys - Assessment of damages for loss of dependency and loss of services - Relevance of services provided by father before death in undertaking assessment of damages

Fatal Accidents Act 1959 (WA)

Biddulph v Lenegan (Unreported, WASC, Library No 990076, 19 February 1999)

De Sales v Ingrilli [2002] HCA 52; (2002) 212 CLR 338

Nguyen v Nguyen (1990) 169 CLR 245

NSW Insurance Ministerial Corporation (formerly GIO) v Willis (1995) 35 NSWLR 668

Ruby v Marsh [1975] HCA 32; (1975) 132 CLR 642

Seymour v British Paints (Australia) Pty Ltd [1967] Qd R 227

Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531

Van Gervan v Fenton (1992) 175 CLR 327

Wheat v Wisbey [2013] NSWSC 537

1. On 1 November 2020 Sabine Mather was killed in a motor vehicle accident near Capel. The accident was caused by the negligent driving of her husband, James Ryan Mather. She was 31. James also died in the crash. Sabine and James were survived by their two young sons, Jethro 7 and Isaac 5. At the date of their deaths Sabine worked 30 hours per week as a permanent part-time child care worker and James worked as a boatswain.
2. Since the tragic event in which they became orphans, Jethro and Isaac have been cared for and raised by their maternal grandparents Elke and Steve Lunn.
3. Jethro and Isaac, by Elke who is their next friend, commenced these proceedings seeking damages from the Insurance Commission of Western Australia[1] (the Commission) under the Fatal Accidents Act 1959 (WA) (which I sometimes refer to as 'the Act'). The claim is for the pecuniary benefits and domestic care and assistance that Sabine would have provided them but for her death. As I will set out in greater detail, the task in assessing damages is based on a hypothetical position, being the loss of the chance of obtaining a financial benefit from the continuance of the life of the deceased who is the subject of the action. This requires a determination of the monetary value of the gains that Jethro and Isaac would have obtained from Sabine if she had not died on 1 November 2020.
4. The Commission admits liability for James' negligence and admits that Jethro and Isaac are entitled to maintain an action and recover damages in respect of Sabine's death for the purposes of s 4 of the Act. The trial before me therefore is concerned only with the assessment of damages for Jethro and Isaac's claims for loss of dependency and loss of services.

A threshold issue: The appropriate counterfactual to assess damages

1. A threshold issue arises from the fact that James' negligence caused not only Sabine's death but also his own death. This raises an important question of what is the appropriate counterfactual against which the boys' loss is to be assessed?

1. The Commission argued that the damages to be awarded could only compensate Jethro and Isaac for domestic services and financial support that Sabine would have provided in the context of a two-parent household. With respect to domestic services, the services that James was providing at the date of death, and would have continued to provide but for his death, cannot be attributed to Sabine in a hypothetical assessment and awarded to the plaintiffs. Further, for the purposes of assessing Jethro and Isaac's claims for loss of dependency based upon Sabine's lost income, Sabine's level of personal consumption should be calculated as a percentage of household income in a two-parent household based upon James' and Sabine's total incomes at the date they died.
2. The Commission's position was that any other approach would result in Jethro and Isaac receiving compensation not only for services their mother would have provided, but also for services their father would have provided. Further, it would be wrong to award any sum which compensates Jethro and Isaac for services previously provided by their father, as this would provide compensation for the loss of services provided by both parents. Rather, the Fatal Accidents Act only permits recovery of material benefits that Sabine would have provided, and compensation cannot extend to benefits that James would have provided.

1. Jethro and Isaac's position is that, but for her wrongful death, Sabine would have been their sole parent providing all care and financial support for them from 1 November 2020. Taking this approach, any care James provided before his death (about which no evidence was led), or would have provided but for his death, is irrelevant to the assessment of damages.

1. The parties agreed that the claim for loss of dependency should be calculated across three separate periods:
   • Period 1: From Sabine's death (1 November 2020) until 31 January 2021.
   • Period 2: From 1 February 2021 (the commencement of the 2021 school year) until the date of judgment. Periods 1 and 2 comprise the plaintiffs' past loss of pecuniary benefits.
   • Period 3: Future loss of pecuniary benefits from the date of judgment until the dates when Jethro and Isaac would cease to be financially dependent on Sabine.
2. The parties agree that it is appropriate to use a blended rate for Period 2, such blended rate taking account of pay rises Sabine would have received for her ongoing service, rising seniority and promotions she would have obtained within the child care business that she worked for, Bayswater Child Care Association (BCCA). However, they disagree on what the appropriate blended rate should be. It is therefo3re necessary for me to reach conclusions about what Sabine's likely income would have been during Period 2 and Period 3. The calculation of the claim for loss of pecuniary benefits also requires an assessment of Sabine's personal consumption of her income. Specifically, should that be based on a single-income household or a dual-income household, which is directly tied to the threshold issue concerning how James' death is to be treated.

Loss of services and the boys' additional needs

1. Jethro, Sabine's older son, has dyslexia and learning difficulties. Isaac has ADHD (for which he takes medication, likely for the rest of his life) and associated learning difficulties. The parties differ on how, if at all, these conditions affect the calculation of the plaintiffs' loss.
2. The plaintiffs contend that they are likely to require more supervision than children of the same age without these conditions. Further, as they grow into adulthood, it is likely that they would require more ongoing financial and domestic support than would otherwise be the case.
3. The Commission's position is that to the extent that I find Jethro and Isaac have these conditions it increases the likelihood they would not pursue tertiary educations, and they would be more likely to enter the workforce at or around the age of 18 and their financial dependence on Sabine was likely to end at an earlier age.

What are the issues between the parties to be determined in order to assess damages?

1. By way of summary, in approaching the assessment of damages in this case, I consider the following issues need to be determined:
   1. Should the damages for Sabine's wrongful death be calculated on a hypothetical assumption that from the date of her death she would be a sole parent or on the basis that that she would have been a dual parent providing services and income in a two-parent household?
   2. But for her death, what income would Sabine likely have earned from 1 November 2020 to the date of judgment? This requires an assessment of whether she would have worked full-time hours from 2021 onwards, her likely pay increases and her likely rate of promotion at BCCA.
   3. In determining Sabine's future lost earnings so as to determine Jethro and Isaac's loss of dependency, should her personal consumption factor assume a single or dual income household?
   4. Do Jethro and Isaac require an extended period of financial dependency or care, supervision and domestic services due to:

(a) Jethro's dyslexia, dysgraphia and emotional dysregulation;

(b) Isaac's ADHD with associated functional impairment; and

if so, until what ages would Sabine have provided Jethro and Isaac financial support and domestic services?

1. What is a reasonable allowance for the number of hours for past care, supervision and domestic services that Sabine would have provided to Jethro and Isaac from 1 November 2020 until the date of judgment?
2. Related to issue 4, what is a reasonable allowance for the number of hours for future care, supervision and domestic services that Sabine would have provided to Jethro and Isaac from the date of these reasons?
3. Related to issue 1, should the total allowance for care, supervision and domestic services be reduced because James' negligent driving caused Sabine's death? If so, by what percentage or other method should this reduction be calculated?
4. Should the plaintiffs' damages be reduced for general contingencies?
5. In the next part of my reasons, I will set out the legal principles and my view of how damages should be assessed in light of issue 1. I will then set out the background facts, so far as can be determined from the evidence, and my views about how Sabine's employment and her likely income could be assessed. Next, I will turn to Jethro and Isaac's medical conditions and their living arrangements since their parents' death and how domestic services which have benefited them have been replaced since their parents' deaths. I will then deal with the parties' contentions as to the assessment of damages and the assumptions I should adopt. Finally, I will set out my calculations for Jethro and Isaac's claims for loss of dependency and loss of services.
6. The findings I make with respect to the calculation of Jethro and Isaac's claims for loss of dependency and loss of services I make on the basis that I am reasonably satisfied based on all the information before me that the assessment I have made is the best estimate available. In doing so, I appreciate that what I am assessing is a hypothetical situation of what would have happened if Sabine had lived, which as I will refer to below, has been referred to as a situation that puts the court in the impossible position of having to make assumptions and predictions about a future that cannot occur.[2]
7. For the reasons that follow I have calculated the damages for Jethro and Isaac's claims for loss of dependency and loss of services, subject to hearing from the parties before judgment is entered, in the sum of $2,774,947 which shall be proportioned:
   • for Jethro's benefit $1,272,998.50;
   • for Isaac's benefit $1,501,948.50.
8. The parties have agreed that upon publication of these reasons judgment should not be entered because a trustee to hold and invest Jethro and Isaac's awards has not yet been agreed between them. Further, the appointment of a trustee cannot occur until the quantum of damages is known and estimates of trustee fees can be obtained. Accordingly, as I have noted in the conclusion of my reasons, I will order the case be adjourned for 14 days after the publication of these reasons, without any orders being made, so that estimates of trustee fees can be obtained and the parties can confer as to the appropriate orders to give effect to these reasons including, if it be necessary, the correction of any arithmetical errors in my calculations so that the judgment amount entered is consistent with these reasons for decision.

1. Western Australia's Fatal Accidents Act is a derivative of the Fatal Accidents Act 1846 (UK) which is commonly known as Lord Campbell's Act_._[3] The legislation bears the name of Lord John Campbell who as a politician championed the law reform achieved by the legislation and who was responsible for its introduction.[4] Prior to the enactment of Lord Campbell's Act, the families of persons killed due to the negligence of another party could not claim compensation for the wrongful death. The common law position was expressed in Lord Ellenborough's ruling in Baker v Bolton[5] as follows:

In a civil Court, the death of a human being could not be complained of as an injury, ....

1. Accordingly, the basis of the plaintiffs' cause of action is statutory. Aside from the Fatal Accidents Act no remedy would be available to the plaintiffs for the events of 1 November 2020.
2. Section 4(1) of the Fatal Accidents Act, which confers the right of action, relevantly provides:

Where the death of a person is caused by a wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued is liable to an action for damages, notwithstanding the death of the person injured, ...

1. Section 6(1) provides that the action is brought for the benefit of relatives of the deceased. The term 'relative' is defined in sch 2 to include relevantly a husband or wife, father or mother, son or daughter and people in certain other specified degrees of blood relationship and any de facto partner. In this case, no controversy turns on the sole plaintiffs being Sabine's sons. Section 6(2) relevantly provides:

In every action the court may give such damages as it thinks proportioned to the injury resulting from the death to the parties respectively for whom and for whose benefit the action is brought.[6]

1. The statutory cause of action conferred by the Act (and its equivalents in England and Australia) have interpreted the 'injury', for which damages are recoverable, as being the loss of the chance of obtaining a financial benefit from the continuance of the life of the deceased who is the subject of the action. The monetary value of the 'injury' occasioned by the death is the product of the loss of the expectation of material benefits, or of the reasonable prospect to material benefits, less any gains accruing from the death.[7] For this reason, the cases refer to damages for injury as being calculated on a balance of pecuniary gains and losses consequent upon the death.[8]
2. As McHugh J explained in De Sales v Ingrilli:[9]

In an action under the Fatal Accidents Act, the first issue is to determine the value of the gains that the relatives would have obtained from the deceased if he or she had not died. That inquiry requires the court to determine what would have happened if the deceased had lived, a course that immediately puts the tribunal of fact into the impossible position of having to make assumptions and predictions about a future that cannot occur. Even in simple cases, the probability must be very high that the assumptions and predictions are wrong and wrong by a wide margin.

1. The damages recoverable by Jethro and Isaac are for the loss of benefits they expected to receive, dependent upon the continuation of their mother's life. This includes her direct financial support to them and the value of services it was expected she would provide to them. To calculate damages for the loss of a reasonable expectation of pecuniary benefit 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.[10]
2. A claim for damages under Lord Campbell's Act is a claim for recompense for some tangible advantage which was then lost by reason of the death of the deceased. The claim is not related to need. For example, a relative claiming for the loss of housekeeping services by reason of the death of a deceased may have no need of those services in that the relative may be able to perform them herself or himself. Notwithstanding, if the relative has suffered the loss he or she is entitled to recover for it. It does not matter whether the relative intends to use the damages to replace the services or not.[11]
3. There are, therefore, three basic principles to be applied in a claim arising from Lord Campbell's Act:
   1. Pecuniary losses only: Damages are calculated for pecuniary loss only by reference to the pecuniary benefits that could reasonably have been expected from the continuance of the life of the person whose death has triggered the claim. Loss of an expected benefit is restricted to loss of direct financial support but may include the value of services the deceased would have provided around the home, or which would otherwise have supported the activities of the claimant.
   2. Balancing of pecuniary gains and losses resulting from death: In setting off gains to a claimant by balancing both pecuniary gains and losses resulting from death, the savings made by the claimant in consequence of the death of the deceased must be taken into account. For example, where a claimant provided certain services to the deceased until his or her death, the fact that it is no longer necessary for the claimant to provide those services to the deceased, must be considered when assessing benefits the deceased would have conferred upon the claimant. Further, savings made by the claimant in consequence of the death of the deceased must be taken into account.
   3. No requirement to establish need: A claimant's entitlement to be compensated for the loss of domestic services provided by the deceased is not dependent upon the claimant's need for such services.[12]

1. The loss occurs 'at the moment of death' or date of death.[13] In Nguyen v Nguyen, Deane J made reference with approval to the decision of Gibbs J, when he sat as a judge of the Supreme Court of Queensland, in Seymour v British Paints (Australia) Pty Ltd[14] where his Honour said:

The damages have to be assessed as at the date of [the wife's] death and at the date the [the husband] had lost [his wife's] services and that was a pecuniary loss because the services had a pecuniary value. Evidence of subsequent events is of course admissible to show what the facts in reality were and to render it unnecessary for the court to speculate about probabilities when the facts are known ...

1. Dawson, Toohey and McHugh JJ also made reference with approval to a similar passage of Gibbs J (as he then was) in the decision of Ruby v Marsh[15] where he stated:

... The expectation of future benefit was destroyed by the death and no subsequent event can increase or diminish the extent of the pecuniary loss then suffered, although it is true that subsequent events may be relevant to the assessment of damages in so far as they render it unnecessary for the court to speculate about possibilities that may have existed at the date of death when the facts themselves have become known. ...

Application of the principles to the unique factual circumstances of the present case

1. As far as I can ascertain, no authority has dealt with an assessment of damages under Lord Campbell's Act for orphaned children in circumstances where a negligent act of one parent killed both of the children's parents in one incident.
2. On first principle, one would expect an assessment of damages for the statutory cause of action in this case to consider the hypothetical survivor, but for the wrongful death, raising the couple's children as a sole parent, as that is the hypothetical assumption that the legislation requires.
3. In such circumstances, it would appear to be somewhat anomalous to take into account domestic services of the 'at fault' parent who caused both deaths. To treat services James may have provided had he survived as a 'gain which must be set off' appears inconsistent with the principle explained in [27.2] above. Similarly, it would seem to be anomalous to arbitrarily reduce the direct financial support or the value of services Sabine would have provided around the home on the basis that, for the hypothetical assessment, James would have survived and provided financial support and domestic services when he clearly could not. This appears inconsistent with the principle explained in [27.1] above.
4. The case of NSW Insurance Ministerial Corporation (formerly GIO) v Willis[16] illustrates the approach courts may take in cases with unusual facts such as the present. In my view, the case of Willis demonstrates damages are assessed by reference to the injury resulting from the fact of the death to the entitled parties. Further, damages are assessed by the consequences of the death and not merely by reference to what services the deceased actually provided in the context of the living arrangements that existed at the date of death. The case also illustrates how evidence of subsequent events should be taken into account to avoid speculation when the facts themselves are known.
5. In Willis, Mrs Helen Pietsch, the mother of three infant children, was killed by negligent driving. By her first marriage she had two children, Nicole and Shane who were aged 10 and 7 respectively at the date of their mother's death. Mrs Pietsch also had a third child, a daughter named Gelinda, who was aged 3 at the date of her mother's death.
6. At the time of Mrs Pietsch's death, Mr Willis, the father of the two older children was living on a country property with his second wife and his children moved to live with him. Gelinda moved to live with her aunt and grandmother.
7. Proceedings were brought on behalf of the three children. Judgment was entered in favour of the children for a total sum of $458,244.62. Gelinda's award was significantly higher than Nicole's and Shane's.[17]
8. In the course of the judgment some observations were made which inform how an assessment of damages under Lord Campbell's Act should take place. One of the judgments noted as follows:[18]

Mr Leslie QC for the appellant contended that the available damages could never exceed the evaluation (at commercial rates) of the support and services rendered by the individual deceased or, as he somewhat colourfully pressed his proposition, a defendant may not be made to supply two mothers to replace one. The contention is flawed by its restriction to evaluating the services and support emanating from the deceased rather than - as the statute authorises - evaluation proportioned to the injury resulting from the death to the entitled parties respectively. In relatively unconventional circumstances the result of calculation may see the latter exceed the former. This is such a case and although it may be unusual there is no principle of assessment of damages which prevents an award exceeding evaluation of the total benefit provided in the way the deceased did it in fact, if reasonable replacement in the way it comes to be done after the death costs more.

1. In similar terms, Sheller JA observed:[19]

... Against the argument advanced in the present case by the appellant it is useful to refer to the three ways in which a personal injury may give rise to damage, identified by Windeyer J in Teubner v Humble [1963] HCA 11; (1963) 108 CLR 491 at 505. One was to create needs that would not otherwise exist. This is also true of the injury to a child caused by the death of a parent. For example where a single parent cared for several children of whom one suffers a disability, the death of that parent may create a need for the disabled child to be cared for separately in a special home or hospital. In my opinion, the Act enables an award of damages to be made to compensate that child for the need the parent's death has created. In the present case Mrs Pietsch's death created a need for Gelinda to be cared for separately from the other two children. Kirkham DCJ found that in the light of family circumstances there was a strong probability that his [sic] would happen if Mrs Pietsch died while her children were young.

1. Similar observations apply in this case. A claim for damages under Lord Campbell's Act is a claim for recompense for a tangible advantage which had been lost by reason of the death of the deceased.[20] In relation to a claim for damages sustained through the death of a parent, the loss occurs 'at the moment of death'. In this case, the expectation of future benefit on the part of Isaac and Jethro was destroyed by the death of Sabine.
2. James' death, to the extent it was not already evident at the immediate 'moment of (Sabine's) death', is relevant for the assessment of damages because that event renders it unnecessary for the court to speculate about possibilities that may have existed at the date of death when the facts themselves have become known.[21]
3. There is a tension in comments in previously decided cases where reference has been made to damages being assessed by reference to the actual circumstances of the family as they were before the death of the provider.[22] In Nguyen v Nguyen, Brennan J observed that the entire family situation before death must be compared with the entire family situation after the death.[23]
4. A difficulty with ascertaining the 'balance of the loss' in this case is that, as a matter of reality after Sabine's death, James could not confer any benefits on Jethro and Isaac. No financial benefits have been conferred on Jethro and Isaac as a consequence of Sabine's death. Nor has James' death caused any beneficial financial benefits to flow to Jethro and Isaac.
5. What has occurred since Sabine's death is that through the natural love and affection of their grandparents, who have stepped in to provide domestic services and supporting income for them, the boys have been saved from extreme financial hardship and, at worst, becoming wards of the State. While it is the case that if James had survived the fatal accident, one would expect that he would have provided services (and potentially significant domestic services) to his sons. Notwithstanding, the assessment required is to determine, at the date of Sabine's death, the loss of chance of the plaintiffs obtaining a financial benefit from the continuance of the life of Sabine.
6. Accordingly, in the circumstances as known to the court, the continuance of the life of Sabine would have seen her providing all domestic services for her sons and all financial support for them. As I will turn to later in my reasons, I accept there would be short periods when one would expect other family members, specifically her parents, would have assisted Sabine, but that does not alter the fundamental position.
7. It seems anomalous that a claim by Jethro and Isaac in respect of their mother's death should be liable to abatement on account of a possibility that their father could provide domestic services to them when the reality of the situation is that there was no prospect which existed at the date of Sabine's death that that could occur. To assess damages in this way would be a strange proposition when the court is required to assess the benefit in monetary terms of the loss of the chance from the continuance of the life of Sabine. If she had lived, in the unusual circumstances of this case, she would have been a sole parent.
8. In De Sales v Ingrilli, Kirby J highlighted some anomalies that exist in Lord Campbell's Act claims by making these observations:
   1. ... The law requires that 'any benefit accruing to a dependant by reason of the relevant death must be taken into account ... the balance of loss and gain to a dependant by the death must be ascertained, the position of each dependant being considered separately'. ... This being so, a court must endeavour to work out the balance of financial gains and losses as best it can.

1. ... The law on the subject is full of anomalies and fine distinctions. Why, for example, should help given by a step-parent to a child who has lost a parent be deducted in the calculation of damages under the Act, but not similar support given by a grandparent or other volunteer? Sometimes, the only apparent justification for the lines drawn by judicial decisions in this area has been that of a policy choice. The logic of several of the decisions is questionable, a fact recognised by this and other courts.

1. In my view, the assessment of damages for the statutory cause of action takes place to compensate Jethro and Isaac for loss by reason of the wrongful death of their mother. That loss occurs at the moment of her death. The assessment has to take place on the facts that have become known at the date of Sabine's death. In this case, the fact that had become known at the date of death was that James had also died. The two boys were orphans.
2. The assessment of the tangible advantage which Jethro and Isaac lost by reason of the death of their mother was the loss of the pecuniary benefits and domestic services their mother would have provided to them as their parent, taking into account her primary duty to maintain her children under s 66B(1) and s 66 of the Family Law Act 1975 (Cth).
3. The objective of an assessment for the statutory cause of action is to assess damages by placing a financial value on the pecuniary benefit that Isaac and Jethro could reasonably have been expected to receive by the continuance of the life of their mother. That requires an assessment of what benefits Sabine would have brought to the family, in this case to Jethro and Isaac, in the form of income and the provision of services.[24]
4. It is difficult to see a rationale for trying to ascertain in the short period of her sons' lives what domestic services their father provided to them and to then extrapolate those services over the entire period of their adolescence and early adulthood as a means of mitigating damages for the loss of the services their mother would have provided to them for that entire period of their childhood (and early adulthood), had she survived the wrongful act of their father as the tortfeasor.
5. Such a construction, in my respectful view, would give rise to what Kirby J referred to in De Sales v Ingrilli as an anomaly and fine distinction, the only apparent justification for which would be of a policy choice.
6. Accordingly, I determine that damages for Sabine's wrongful death should be calculated on the basis that from the date of her death she would have been a sole parent, providing all financial support and domestic services to Jethro and Isaac. This conclusion resolves issues 1 and 7.

No evidence was led as to Sabine's performance of domestic services

1. Having determined that damages should be assessed on the basis that Sabine would have been a sole parent from the date of her death, I now turn to the evidence led at trial and the methodology for calculating the quantum of the lost benefits that would have been provided by Sabine to Jethro and Isaac.
2. The plaintiffs did not adduce any evidence of the domestic care and assistance that either of their parents provided to them prior to 1 November 2020. Accordingly, I am unable to make any findings about how domestic tasks were performed by Sabine and James in the family home before their deaths or the division of responsibilities between them. I approach the assessment of domestic care and assistance services without this baseline evidence. What is known is that on the weekend of the fatal crash, Jethro and Isaac were staying with their grandparents and being looked after by them.

1. The plaintiffs led evidence at the trial from two witnesses, Elke Lunn, Jethro and Isaac's grandmother and primary carer, and Dr Jane Steele a qualified specialist paediatrician. The Commission did not call any witnesses to give evidence.
2. The plaintiffs prepared a trial bundle containing a number of reports prepared by Dr Steele, reports from the boys' school psychologists, various school reports and school results, and correspondence to Elke from Jethro and Isaac's teachers. The plaintiffs' trial bundle also contained a number of Sabine's tax returns, pay slips and other employment records as well as pay rates, enterprise agreement and award classification comparison documents for the pay rates from BCCA and the relevant award.
3. The Commission did not object to any documents in the plaintiffs' bundle and I accepted the bundle as Exhibit 1. The Commission also tendered a bundle of tax returns and financial documents for James and Sabine which I received as Exhibit 2. The documents in Exhibit 2 included Sabine's 2021 tax return which was filed after her death and which disclosed the income of her spouse, James for the four month period 1 July 2020 to 31 October 2020 was $30,316 gross.[25] I also received a document of hourly pay rates at the BCCA as of 2 December 2024 entitled 'BCCA Argument and Award Classification Comparison' as Exhibit 3. One difficulty which arises in the assessment of Sabine's lost income is that the hourly pay rates of the BCCA award are not complete for all positions for the years 2022, 2023 and part of 2024. Nevertheless, I was able to take a broad brush approach to Sabine's likely income which I explain in [144] - [146] below.

Sabine and her family - Sabine's background and her family relationships

1. Like many people in modern Australia, Sabine was the daughter of migrants. Her mother Elke (born 3 September 1960) and father, Steve (born 29 February 1960) were originally from Germany. At the date of the trial they had been married for over 37 years. They live in inner suburban Perth. Jethro and Isaac have lived with Elke and Steve since the death of their parents. Elke has been their primary caregiver.
2. Elke and Steve emigrated to Australia when they were each about 24 years of age. Sabine was born on 3 August 1989 and her brother, Daniel, was born in 1991. When Sabine was in primary school the family lived in Papua New Guinea. In 2000 the family returned to live in Perth.
3. Sabine attended high school at Chisholm College and completed Year 12 in 2006. She commenced studying at university, initially accounting and later teaching, but she did not complete an undergraduate degree.
4. In 2008 or 2009 Sabine met her future husband, James. According to her mother, the relationship affected her studies as James was a seaman who worked away but when he was in Perth, Sabine did not attend university. Elke said that 'love was more important than studying at that age' for Sabine. Sabine eventually deferred her studies and worked on a short-term basis as a receptionist in several jobs.
5. On 16 July 2012 Sabine commenced working in the 'long day care' part of BCCA's Salisbury Child Care Centre business. This part of the business catered to children under kindergarten age. Sabine was then 22 years old. She subsequently obtained qualifications in child care including a Certificate III diploma in child care. Sabine was working at the same day care centre as a team leader at the date of her death.

Bayswater Child Care Association - Sabine and Elke's employer

1. Bayswater Child Care Association is a not-for-profit organisation that conducts three day care centres, Silverwood Child Care Centre (Silverwood) in Morley, Noranda Child Care Centre in Noranda and Salisbury Child Care Centre (Salisbury) in Bedford. At the date of trial, Elke had worked for BCCA for 17 years and was employed as the manager of the long day care operations of BCCA's three day care centres.
2. Each day care centre provides a service to working parents who need child care while they are working. BCCA also provides other child care services at each centre including before and after school care and vacation care. By 'long day care', Elke explained that each of the centres provides an educational program plus child care for children on weekdays from 7.15 am (Silverwood) or 7.30 am (Noranda and Salisbury) until 6.00 pm.
3. Elke said in evidence that lower-middle income families receive child care subsidies. A government benefit pays part of the centre's fee leaving a 'gap' which is payable by the child's parent or guardian to the centre. One of the benefits of employment for BCCA staff is that if they require any child care services for their own children, the centre gives a discounted price which would be 50% of any gap fee.

1. BCCA employees are subject to an enterprise bargaining agreement which is negotiated every five years. The next enterprise bargaining period was due to commence by July 2025. BCCA's enterprise bargaining agreement rates of pay are higher than the child care award with the result being that BCCA pays its employees at a higher rate compared with child care centres which pay the Children's Services Award.
2. BCCA's full-time employees work 76 hours per fortnight (or 38 hours per week) and have four weeks of holidays and 76 hours (or two weeks) of special leave. This additional special leave is provided to employees in consideration of staff members undertaking workplace training or staff meetings after hours. Staff members also have available to them 10 days of annual sick leave.

Employment positions and promotional opportunities available at Bayswater Child Care Association

1. The senior employment position at each of BCCA's day care centres is a position called 'Centre Coordinator'. Each centre has three 'team leader' positions. Sabine occupied a team leader position at Salisbury at the date of her death. Two or more other child care workers work under each team leader to support the team leader.
2. The plaintiffs tendered in evidence an extract of BCCA's pay rates.[26] The plaintiffs also tendered schedules of pay rates for BCCA's various employment positions for the years 2021 until the date of trial. The latest document was prepared in December 2024.[27]
3. At the time of her death, Sabine's team leader position was categorised as a Level 4A position on the BCCA pay scale. A team leader children's services educator holding a diploma qualification had three levels of payment rates: Level 4A (which Sabine held at the date of her death), Level 4B, and Level 4C. The position of Centre Coordinator also had three pay rates: Levels A, B and C.
4. Elke's unchallenged evidence was that, subject to an annual work performance review, there is an automatic graduation from Level 4A to Level 4B and Level 4C respectively. The same observations apply to levels of payment rates for other positions including Centre Coordinator. Unless an employee suffers an adverse performance review, there is an automatic graduation from Level A to Level B and Level C on an annual basis.
5. Accordingly, in 2021 Sabine would have been paid as a Level 4B team leader. On a full-time basis Sabine would have been paid $1,216.38 gross per week/$979.38 net per week.

1. In her evidence, Elke described her promotion within BCCA's business. She described how she originally started working for BCCA as the team leader in the 'kindy room', which was the job Sabine was performing at the date of her death. She started at Silverwood. In her evidence she said she 'just climbed up' from there.
2. After a year as a team leader in the kindy room, Elke was promoted to be the Centre Coordinator at Silverwood. She was then promoted to the role of an assistant manager for BCCA and, later, to her current role as the manager of the long day care aspect of the business. She has been an assistant manager or manager for over eight years.
3. Elke's duties as manager of BCCA's long day care include going to each of the three centres to deal with issues that arise with staff, any complaints from parents and regulatory compliance for the business. She sits in on staff interviews and is involved in decision-making, with others, as to the employment of staff. She evaluates pay rises and co-signs wages for employees each fortnight and, from the nature of her role, manages the long day care aspect of the three centres.
4. Elke's evidence was that since the accident, four Centre Coordinators have left BCCA. Two of the Centre Coordinators that left were based in Noranda. BCCA had difficulties in filling each of those vacancies with a suitable applicant as they arose. One of those opportunities arose in 2021, another in 2022. Additionally, two further vacancies arose in 2023, at Silverwood and at Salisbury, where Sabine had previously worked.[28]
5. Elke and BCCA's chief executive officer interview candidates for Centre Coordinator positions.
6. Elke described Sabine's prospects of promotion within BCCA to a Centre Coordinator's role by saying 'the possibility' was 'quite high' for her to actually get that job (the Centre Coordinator position) 'especially when we had difficulties to find somebody suitable'.[29] In her evidence, Elke also described an instance at BCCA where a daughter was promoted to the managerial position her mother held.

1. To assess the plaintiffs' claim for loss of pecuniary benefits, I must determine two issues:[30] First, whether Sabine would have commenced full-time employment from 1 February 2021; and second, whether she would have received promotions within BCCA. In making these assessments, I accept that they are based to a degree on speculation, but I outline below the evidence upon which I consider those facts can be assumed for the purposes of the assessment of Sabine's likely promotion in the business.

Would Sabine have worked full-time hours from 1 February 2021?

1. At the time of her death, Sabine was working 60 hours a fortnight. Elke's unchallenged evidence was that Sabine told her shortly before her death that she wanted to go full-time at the beginning of the next school year. Elke also confirmed that Sabine had made a request to the Salisbury coordinator and the coordinator was happy to agree or make that possible. Elke also said that the general practice of BCCA's business was that staff would move to the 'next room' each year because as the children grew up there was a need for continuity of care. The request for full-time work also facilitated the change in care of the children Sabine had been working with.
2. The Commission did not dispute the evidence that Sabine had made a request to her coordinator that she wanted to go to full-time hours. I find that Sabine would have commenced working full-time hours from 1 February 2021 (38 hours per week or 76 hours per fortnight) from 1 February 2021. I am comfortably satisfied that Sabine would have worked full-time in BCCA's Salisbury Child Care Centre (or one of BCCA's other centres) from that date.

1. Elke gave evidence about the structure of BCCA's business, BCCA's enterprise bargaining arrangements, and the scope for promotions within the business. She spoke of her own promotion from the position she was occupying when she first joined the business, which was the same as Sabine's. She spoke about her rise through the business to the position of manager of long day care. I accept Elke's evidence in this respect (and her evidence generally) as being honest, truthful and reliable.
2. Notwithstanding that Elke is Sabine's mother and herself acknowledged that she had a view of her daughter by virtue of that relationship, she said that Sabine was very passionate about the children in her care, was a good mother, responsible and reliable, and that those attributes were what the business was looking for in employees. Her evidence was that BCCA sought out motivated people who were responsible, reliable and had a good rapport with children.[31] She described her daughter as being passionate and well respected within the organisation.
3. On the evidence available, I consider there was a strong probability that Sabine would have been promoted within the business to the position of Centre Coordinator, likely in 2022, but possibly as early as 2021 or as late as 2023, given the availability of positions and her respect within the business. I outline my conclusions as to Sabine's promotions within BCCA in [136] and [144] below.

1. Jethro was born on 2 February 2013. Jethro is Sabine's older son. At the time of trial, he had just turned 12 years of age and was attending his first year at high school, Year 7 at Chisholm College.
2. Jethro was 7 years and 9 months when his parents died. Since their death he has lived with his grandparents, Elke and Steve Lunn. After his parents' death he attended Hillcrest Primary School. It is intended that he will remain at Chisholm College until he finishes school.
3. Jethro has been diagnosed with dyslexia and dysgraphia. He has been in a special needs program and has had regular tutoring in his time living with his grandparents. He has had behavioural issues at school, and although he had delays in his reading ability, he can read now but spelling is still an issue for him.[32] He engages on occasions in aggressive and defiant behaviour.[33] For some years he has been under the supervision of Dr Steele, a paediatrician.
4. Dr Steele, a qualified specialist paediatrician gave evidence with respect to both Jethro and Isaac's medical conditions. She first met with Jethro on 6 October 2021.
5. Dr Steele prepared a report on 26 October 2021 that stated that multiple members of Jethro's family had been diagnosed with ADHD[34] including his father and maternal uncle, Daniel. With respect to the diagnosis of emotional dysregulation, Dr Steele referred to that condition as a symptom that is often seen in children with ADHD where they find it difficult to contain their emotions, feel criticism more strongly than other children and find it difficult to control what comes with those emotions. Having said that, Dr Steele confirmed that she had not diagnosed Jethro with ADHD.
6. Dr Steele was taken to further reports of 20 July 2022 and 14 March 2023. With respect to the diagnosis of emotional dysregulation as against ADHD, Dr Steele said that emotional dysregulation is seen more commonly in children with ADHD but it was also seen in neurotypical or 'normal' children. Dr Steele said that her experience is that children who feel things strongly continue to be adults who feel things strongly. Into adulthood, some manage their emotions more readily and it is very difficult at Jethro's age to predict the future possible progress of his condition.
7. Dr Steele's most recent review of Jethro was on 9 April 2024 and at the time of that report she stated that he was currently going well and there were no significant concerns. During her evidence at trial, Dr Steele clarified that position to say that she had had a recent phone call from Elke about concerns that had been raised since he started high school, and she would be seeing him again. When cross-examined about testing for ADHD, she said that with Jethro she had undertaken two assessments, and he was borderline but 'didn't quite meet criteria'.
8. Dr Steele was asked a question about the inevitability of a person having ADHD having difficulties with employment and she answered, 'not in every single person with ADHD'.

1. Isaac was born on 18 March 2015. At the date of his parents' death Isaac was 5 years of age. At the date of trial, he was 9 years of age, about to turn 10.
2. Elke described Isaac as having difficulty reading and writing, struggling with maths at school, and requiring tutoring. He has been diagnosed with ADHD and is taking medication for his ADHD. He is easily distracted, often forgetful [35] and has a short attention span.
3. Dr Steele confirmed that Isaac had been diagnosed with ADHD, dyslexia and dysgraphia. She described these conditions as follows:
   1. Dyslexia is a specific learning disorder whereby a person suffering from it has difficulty reading and processing academic information and learning from it and that such condition is not curable and is a lifelong condition. Further, it is extremely difficult to predict in each individual how it may progress over his or her lifetime.
   2. Dysgraphia is a specific learning disorder of written expression whereby a child struggles with understanding instructions and being able to express them in written form. Similarly to dyslexia, that condition is not curable but manageable in most children over time.
   3. ADHD is a neuro developmental condition where children who are diagnosed with the disorder have difficulty maintaining focus, difficulties with hyperactive behaviour and impulsivity.
4. Dr Steele said that Isaac had a combined sub-type of ADHD where he has significant difficulties with attention and focus and also with hyperactive and impulsive behaviour. This is a life-long condition that is managed with medication.
5. Dr Steele first saw Isaac on 29 September 2021 and has generally seen him every six months since then. A number of reports of Dr Steele form part of Exhibit 1. From the reports, Isaac has been taking Ritalin LA for some time. In a report of 15 February 2023, it was recorded that the Ritalin was working well to help Isaac stay on task and control his hyperactive behaviour, but late afternoon homework was becoming 'tricky' as the effects of Ritalin had worn off by then.
6. Additional medication was prescribed being methylphenidate hydrochloride which was administered just before lunch. Prescribing medication was described as having been somewhat difficult because Isaac has had difficulties in being under weight. The most recent report of September 2024 confirms Isaac's current problems as being ADHD, developmental trauma, specific learning disorder in reading, and specific learning disorder in written expression.
7. At the time of the trial, Isaac was being treated with Ritalin LA 20 mg in the morning and Ritalin IR 5 mg at lunchtime and also different medication in the early evening, guanfacine.
8. Dr Steele described assessing and reassessing individuals generally every six months to address and reassess medication and see how patients are going from an academic and behavioural point of view.[36] She described that where individuals cease taking medication, the ADHD features will re-emerge, specifically hyperactivity and impulsivity. Her opinion was, as I have noted, that it was likely that Isaac would retain the need for medication to adulthood.
9. Dr Steele said in her evidence that repercussions can be significant for children, adolescents and adults with ADHD if the condition is not managed appropriately and it is more difficult for sufferers to hold down a job because of their disorganisation, time management skills and the way they communicate. They can be loud and talk a lot which a number of people in the community do not have an understanding about.[37]
10. In cross-examination Dr Steele referred to the history presented to her by Elke was consistent with respect to Isaac[38] with her having to spend more time that would otherwise be expected in looking after a child because of the condition of ADHD. Further, it was not inevitable that ADHD will cause a problem with employment with every single person with ADHD.

Jethro and Isaac's living arrangements since their parents' death

1. Elke gave evidence of a typical week in the lives of Jethro and Isaac as at November 2022.[39] In summary, both boys get up at around 7.00 am each school day. Elke drives them to school and walks them to their classroom commencing at 8.20 am. She then drives to work, finishing at 3.45 pm. After work Elke picks the boys up from out-of-school care and they arrive home at 4.15 pm. She then prepares snacks for the boys, supervises their homework, allows free play while she prepares dinner, pre-packs lunches, and lays out uniforms for the next day. At 6.00 pm the family eats dinner together. At 7.00 pm there is a late snack and at 7.45 pm Isaac takes his medication and is permitted some play time on Xbox. At 8.00 pm Isaac goes to bed and Jethro's bedtime is around 8.45 pm. She would read to the boys one to one. For each weekday the routine is similar.
2. On Saturdays, both boys would attend lessons at Leederville, being described as 'intervention', Isaac for 45 minutes from 8.30 am and Jethro for one hour from 9.15 am. They then have a tutor who provides feedback to Elke before leaving after 10.30 am. For the rest of the Saturday there is no set routine, but the family tries to organise fun activities including encouraging play dates with friends, meeting up with cousins, going swimming, going to skate or BMX parks, movies or shopping. On Sundays everyone gets up a bit later and Steve takes the boys out so that Elke can have some time to herself. Meals and bedtimes remain the same on weekends.
3. Elke's working hours were less than full-time. She worked Monday, Wednesday and Friday 8.45 am to 3.45 pm and Tuesdays and Thursdays 8.45 am to 2.45 pm.
4. During school holidays Jethro and Isaac would attend vocational care, and Elke would try to take some days off to arrange fun activities.

Effect of Jethro and Isaac's learning difficulties

1. An issue in assessing damages for loss of pecuniary benefits and services is determining when Jethro and Isaac would cease to be financially dependent on Sabine and would no longer require her domestic services. This requires an assessment of how their medical conditions and learning difficulties would affect their education, workforce participation, and capacity to live independently.
2. While in some cases, financial dependency might cease at age 18, in other cases financial independence on the part of a young adult may take a much longer period. In case law for family provision matters reference is often made to what a community expectation is with respect to a moral obligation of a parent towards an adult child. It is commonly said that ordinarily, the community expects parents to raise, and educate their children to the very best of their ability while they remain children, probably to assist them with a tertiary education, where that is feasible and, where funds allow, to provide them with a start in life such as a deposit on a home although it might well take a different form.[40] So called 'community expectation' in a wider sense in the Australian community is very diverse.
3. The days when young adults became financially independent a short time after leaving secondary school appear much more infrequent than they were, even several decades ago. Many young adults, upon leaving secondary school, pursue tertiary education. Tertiary education commonly takes students until ages 21 - 22 to complete. Some young adults pursue employment immediately after finishing secondary school, some go through TAFE and other vocational training pipelines to achieve permanent employment. It is not uncommon for young adults to be financially dependent on their parents in the age bracket of 18 - 22 years of age. When looking at Sabine's transition to employment, she studied for a period, had some short-term receptionist jobs and then started working in child care when she was 22. In this case, the evidence points to neither Jethro's nor Isaac's circumstances as being typical when compared to children their age. It appears to me that their conditions will potentially affect their educational progress and delay their transition to permanent employment.
4. In determining a period of dependency, I must assess what benefits Sabine would reasonably have been expected to provide to her sons had she lived. This is not limited to a bare minimum standard but extends to what a reasonable parent in Sabine's position would provide, taking into account the particular needs and circumstances of her children.
5. As I have said, modern Australian experience shows that many young adults remain partially dependent on their parents well into their 20s, particularly while completing tertiary education, vocational training and establishing themselves in the workforce. Young adults continue to live at home with a parent (or parents) longer than they once did. Property rental options are more expensive and less plentiful than was once the case. So much is obvious to all members of the community. Where children have additional needs that may affect their educational outcomes, or outcomes in obtaining permanent employment, it is reasonable to assume a period of dependency (full and partial) would extend further, than the completion of secondary education.
6. Jethro has been diagnosed with dyslexia and dysgraphia. While Dr Steele did not diagnose him with ADHD, he tested as borderline and has a family history of ADHD. In approaching the assessment of damages in this case, on balance, I consider Jethro's learning difficulties will affect his educational progress and his capacity to complete any tertiary education within typical timeframes. The evidence shows that Jethro has required special needs programs and regular tutoring, and this pattern of additional support would likely continue through his remaining school years and any post-secondary education.
7. Dr Steele's evidence was that it is very difficult to predict how Jethro's conditions will progress into adulthood. However, the available evidence supports a conclusion that he is likely to require more support than a 'neurotypical' child of the same age which, in my view, is likely to extend to Jethro completing his education and ultimately transitioning to employment.
8. The plaintiffs submitted they would be partially financially dependent on Sabine (to the extent of 50%) from the age of 18 to the age of 25. Specifically, that there would be a financial dependence at half the level that existed at the age of 18.
9. The Commission's position was that it was appropriate to assess both Jethro and Isaac's future pecuniary loss during the ages of 18 to 21 at 50% of the level of financial dependency that existed up to the age of 18. As I will turn to, the parties adopted different figures and assumptions for Sabine's net income for the assessment of future pecuniary loss.
10. Taking into account the nature of Jethro's medical conditions it is reasonable to conclude, that:
    1. Jethro would remain entirely financially dependent on Sabine until he turned 18 (for the purposes of issue 4).
    2. Like most children his age, he will likely undertake some form of tertiary education or vocational training. Given his learning difficulties, this could likely extend beyond the typical completion timeframe. I find he would likely have remained partially financially dependent on Sabine through such education or further training until the age of 22 (for the purposes of issue 4). I deal with this issue further at [150] below.
    3. Beyond age 22, I find that Jethro would likely have remained requiring financial assistance from Sabine while establishing himself in employment. This partial dependency in all probability would continue to age 25 (for the purposes of issue 4) but is likely to reduce after the age of 22. By partial dependency, I mean Sabine would have been likely to continue to provide accommodation, some financial support for living expenses, and assistance with any out of pocket educational or vocational training costs.
    4. With respect to domestic services, Jethro would likely continue to live in the family home through completion of his tertiary education or training until his early 20's. He is likely to require more organisational support and household assistance than a neurotypical young adult of the same age. I find it probable Sabine would have provided some level of domestic services to Jethro in the form of meal preparation, washing and domestic chores until his early 20's.
11. Isaac's conditions are more severe and wide-ranging than Jethro's. He has been diagnosed with combined subtype ADHD, meaning he has significant difficulties with both attention and focus, and with hyperactive and impulsive behaviour. This is a life-long condition that will seemingly require ongoing management by medication into adulthood. Isaac has also been diagnosed with dyslexia and dysgraphia.
12. Dr Steele gave evidence that ADHD is managed with medication but that where individuals cease taking medication, the ADHD features re-emerge. Her opinion was that it was likely Isaac would retain the need for medication into adulthood. Significantly, Dr Steele described the repercussions as potentially being significant for children, adolescents and adults with ADHD if the condition is not managed appropriately. She said it is more difficult for sufferers to hold down a job because of their disorganisation, time management skills, and the way they communicate.
13. A combination of ADHD, dyslexia, and dysgraphia self-evidently presents challenges for timely completion of post-school study and vocational training and early transition to permanent full-time employment. While Dr Steele properly noted that it was not inevitable that every child with ADHD will have employment difficulties, it is reasonable to infer that Isaac is likely to face challenges in studying or training after secondary school and establishing himself a career or employment in his post-school years.
14. Dr Steele's evidence, supported by Elke's evidence about Isaac's current care needs, demonstrates that Isaac requires more time and supervision than would otherwise be expected for a child of his age. This pattern, in my opinion, is likely to continue into young adulthood.
15. Taking into account the nature of Isaac's conditions it is reasonable to conclude, that:
    1. Isaac would remain financially dependent on Sabine until he reached the age of 18 (for the purposes of issue 4).
    2. Like most children his age, he will likely undertake some form of tertiary education or vocational training. Given his learning difficulties, this could likely extend beyond the typical completion timeframe. I find he would likely have remained partially financially dependent on Sabine through such education or further training until the age of 22 (for the purpose of issue 4).
    3. Given the combination of ADHD, dyslexia, and dysgraphia, any tertiary education would be significantly more challenging and would likely take considerably longer than typical timeframes. If Isaac pursued a three-year qualification, it would likely take a longer time to complete, or he may pursue shorter vocational training options that are less academically intensive.
    4. Beyond 22, Isaac would face challenges of the nature Dr Steele identified in obtaining and maintaining employment. It is not unreasonable to predict that Isaac would be likely to encounter periods of unemployment or underemployment in his early to mid-20s. I find Isaac would likely be partially financially dependent on Sabine while establishing himself in employment to age 25 (which is relevant for the purposes of issue 4).
    5. With respect to domestic services, I consider that Isaac would likely have continued to live in Sabine's home through completion of his education or training. The evidence establishes that Isaac requires significantly more supervision, organisational support, and household assistance than a neurotypical young adult. I find it to be probable that he would continue to receive some form of domestic services and assistance from Sabine, had she survived, until around age 25, or slightly younger (which is relevant to issues 4 and 6). I have assessed an allowance for the domestic care and assistance services Sabine would likely have provided to Isaac in [195] below.

1. Before turning to the quantification of the assessment of past and future pecuniary benefits and loss of domestic services, the calculation of an appropriate sum for damages must ordinarily allow a discount for general contingencies. In De Sales v Ingrilli [2002] HCA 52; (2002) 212 CLR 338, Gleeson CJ explained:
   1. 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. ... 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.
   2. 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. ...
2. The case of De Sales involved a claim by a widow and two children arising from the death of a 31-year-old man who was their husband and father. The legal question upon which the matter was considered by the High Court related to contingencies that should be applied to the surviving widow to take account of her prospects of remarriage. Before the case of De Sales reached the High Court, the Western Australian Full Court considered the question of contingencies when assessing the claims of the two infant children.
3. Wallwork J stated at [33] in the Full Court decision in De Sales[41] that no deduction should be made from the children's damages to allow for contingencies. However, Miller J (with whom Parker J agreed) at [98] concluded a deduction of 5% would be appropriate for the children's entitlements. That conclusion did not appear to be controversial in the High Court and the discount of 5% for general contingencies seems to have been accepted for assessing the claims of the two infant children.
4. There are numerous uncertainties in assessing Jethro and Isaac's future, given their medical conditions, for the reasons I have already outlined. I consider a deduction of 5% is appropriate for the future components of their loss as the calculations assume that Jethro and Isaac will continue requiring financial support from Sabine into early adulthood.
5. Before leaving the issue of contingencies, I consider an attractive argument exists that no contingency should apply for children in the position of the plaintiffs in this case given a potential for Jethro and, or, Isaac to continue dependency beyond the age when independence may be anticipated to occur in the normal course of events.
6. Further, the relatively closed period of dependency in this case, notwithstanding that it can apply for a period of up to 12 - 15 years from the date of judgment, is a shorter period than a claim for loss of dependency from a surviving spouse. These matters counterbalance the adoption of a percentage rate reduction for contingencies but nevertheless I will apply a discount of 5% for general contingencies for the future components of the plaintiffs' loss for the purposes of issue 8.

1. I now turn to the assessment of past and future loss of pecuniary benefits, commonly referred to as loss of dependency.
2. The assessment requires me to determine what financial benefits Jethro and Isaac would reasonably have expected to receive from Sabine had she lived, less the amount she would have spent on her own personal consumption. The parties agreed on several matters regarding assumptions for the assessment but differed on others.
3. Based upon my earlier findings and the evidence, my assumptions for the purposes of calculating loss of dependency are as follows:
   1. Sole parent household: The assessment is to be conducted on the basis that Sabine would have been a sole parent from the date of her death, providing all financial support to her sons.
   2. Personal consumption rate: Sabine would have spent approximately 25% of her net income on her personal expenses. This figure is consistent with the Personal Consumption Percentages in Australia - Current Tables[42] which identifies that a fifth decile single parent with two children utilises 24.2% for personal consumption. A rate of 25% is a fair and reasonable figure that accounts for fluctuations in personal spending. The balance of 75% would have been spent on Jethro and Isaac and upon expenses benefiting the whole family. I do not accept the Commission's submission that a personal consumption rate of 12.4% should be applied. That figure is based on a two-parent household, which is inconsistent with my determination on the threshold issue.
   3. Full-time employment: Sabine would have commenced full-time employment (38 hours per week) from 1 February 2021, working at BCCA's Salisbury Child Care Centre.
   4. Promotion prospects: Sabine would have been promoted within BCCA to a Centre Coordinator position, likely in 2022, but no later than 2024 given:
      • her family connection with the business;
      • her 7 ½ years of service by the date of her death;
      • her passion for her work and the children in her care;
      • her reliability and value to the organisation;
      • the career path evidenced by Elke's own progression; and
      • the availability of Centre Coordinator positions in 2021, 2022, and 2023 and the fact that for at least two of those positions at Noranda which BCCA had difficulty filling.
   5. Dependency periods: Based on my earlier conclusions at [116] and [121]:
      • Jethro: Complete dependency until turning 18; partial dependency until age of 25, or slightly younger.
      • Isaac: Complete dependency until turning 18; partial dependency until age 25.
   6. Calculation methodology: I will calculate lump sum awards using a 6% discount rate, which is the appropriate rate for these calculations. Future periodic losses are converted to present values using standard actuarial multipliers.
   7. Division of loss: It is appropriate to allocate the loss of past pecuniary benefits equally between Jethro and Isaac. For future loss I will calculate their entitlement separately due to their different ages.
   8. No pecuniary gains received: Jethro and Isaac have not received any pecuniary gains resulting from Sabine's (or James') death. Accordingly, no gains or savings need to be balanced or set off from the losses resulting from Sabine's death.

Past Loss - Period 1 - 1 November 2020 to 1 February 2021

1. For Period 1 Sabine would have continued to work part-time hours as she had been doing. Based on her payment history between 25 July 2020 and 30 October 2020,[43] she was earning an average of $919.90 gross per week or $765.90 net per week as a Level 4A Team Leader at BCCA:

1. I calculate the expected pecuniary benefit for Jethro and Isaac for Period 1 as follows:

Interest to date of reasons ($7,458.75 x 6% x 4.7 years)

Past Loss - Period 2 - 1 February 2021 to date of judgment (20 October 2025)

1. For Period 2, I must determine an appropriate blended rate for Sabine's likely net income from 1 February 2021 to the date of delivery of these reasons. This is a period of 4 years and 8 ½ months, or approximately 250 weeks.
2. Elke spoke to a document which was tendered in evidence which contained the pay rates for certain positions for employees of BCCA.[44] At the date of her death, Sabine was a Level 4A Team Leader. Based upon Elke's evidence that employees went from a Level B to a Level C position annually, one disadvantage I have in assessing pecuniary loss is that I do not have any evidence of what the Level 4B or 4C Team Leader pay rates were during Period 2.
3. The parties agreed that it was appropriate to apply a blended rate for Period 2 taking into account both pay rises through automatic progression and her likely promotion to Centre Coordinator.
4. Doing the best I can, I find that a reasonably likely career progression for Sabine during Period 2 would have been:
   • 1 February 2021 to 30 June 2022: Level 4B Team Leader followed by Level 4C Team Leader.
   • 1 July 2022 to 30 June 2024: Level 8A and Level 8B Centre Coordinator.
   • 1 July 2024 to the date of these reasons: Level 8C Centre Coordinator.
5. The plaintiffs submitted that for Period 2, I should adopt a blended rate of $1,300 per week net pay and find that Sabine would have been at least a Level 8B Centre Coordinator by, at the latest, February 2025. The Commission submitted I should adopt a blended rate of $1,100 net per week.
6. I accept the plaintiffs' submission that by the time of trial and for the purposes of my decision, the date of these reasons, Sabine would have been promoted to a centre coordinator position. As I have outlined, I find that she would have most likely have achieved the position of 8B Centre Coordinator by no later than 1 July 2024 and progressed to Level 8C position by the date of these reasons.
7. The different scenarios, permutations and hypotheticals of Sabine's promotion through BCCA can be seen in the following table:

1. As may be seen from the table, a figure which is less than the hybrid figure of $1,300 per week net put forward by the plaintiffs is open on the range of likely promotions I consider that Sabine would have achieved. Taking all matters into account I consider an appropriate hybrid or blended figure for the period from 1 February 2021 until the date of these reasons to be $1,250 net per week. In reaching this figure I have taken a broad brush approach taking into account the evidence that was led. As I have said, that there were some gaps in the evidence led because no information of the pay levels of a Level 4C Team Leader position was provided. Further, the timing of the opportunities for promotion (and the competition for any promotion) leads to some imprecision as to when an opportunity for Sabine's promotion would have arisen.
2. I consider the approach I have taken is conservative. The approach potentially understates the likely speed of promotion in positions Sabine is likely to have achieved within BCCA and that she could have achieved a Level 8 Centre Coordinator position during 2021.

1. I calculate the expected pecuniary benefit for Jethro and Isaac for Period 2 as follows:

1. Accordingly, I calculate the past loss of pecuniary benefits for Period 2 (including interest at 3% per annum from 2 February 2021 to the date of publication of these reasons) to each of Jethro and Isaac is as follows:

1. As at the date of the publication of these reasons, based on the evidence of BCCA's pay structure and Sabine's likely career progression, I find that she would have achieved at least a Level 8C Centre Coordinator position. The most recent pay evidence (as at 2 December 2024) shows a Level 8C Centre Coordinator earned $2,045.54 gross per week or $1,568.54 net per week.
2. A new enterprise bargaining agreement was due to take effect in July 2025. While I do not have evidence of the specific rates under that agreement, I infer based on Elke's evidence that it would have resulted in a pay increase. For the purposes of calculating future loss, I find it appropriate to use a figure of a net weekly income of $1,569.00 per week for Sabine's net income at the date of these reasons.

Appropriate net income assumption to adopt for Sabine

1. After deducting 25% for personal consumption, the pecuniary benefit for Jethro and Isaac would be $1,176.75 net per week (calculated as $1,569 × 75%), allocated equally at $588.38 net per week each. I will round that figure to $588.00 each.

1. Based on my earlier findings at [116], Jethro would have been:
   • Completely financially dependent on Sabine until age 18 (2 February 2031).
   • Partially financially dependent (at 50%) from age 18 to age 22 (2 February 2035) and then from age 22 to 25 partially financially dependent, but to a lesser extent.
2. Jethro is currently 12 years old. I calculate his future loss of dependency as follows:

Period: 4 years (3 February 2031 to 2 February 2035)

For the period where Jethro is aged 22 - 25 I will allow a further sum of $20,000 for his partial dependency which is based on a percentage dependency a little less than 50%.

Accordingly, my calculation of Jethro's future loss of pecuniary benefits is as follows:

1. Based on my earlier findings at [121], Isaac would have been:
   • Completely financially dependent on Sabine until age 18 (18 March 2038).
   • Partially financially dependent (at 50%) from age 18 to age 25 (18 March 2041)
2. Isaac is currently 10 years old. His future losses are calculated as follows:

Period: 4 years (19 March 2033 to 18 March 2037)

Period: 3 years (19 March 2037 to 18 March 2040)

Accordingly, my calculation of Isaac's future loss of pecuniary benefits is as follows:

1. Accordingly, the total pecuniary loss is $692,550 being apportioned as follows:

1. I now turn to the assessment of damages for loss of domestic care, assistance and supervision services that Sabine would have provided to Jethro and Isaac but for her death.
2. As I have referred to in my conclusions on issue 1, the calculation of damages for loss of domestic services should be undertaken on the following basis:
   1. Taking into account the circumstances that existed at the date of Sabine's death (namely that James was dead), I must assess what domestic services Sabine would have provided Jethro and Isaac around the home, or which would otherwise have supported their activities had she survived.
   2. If Sabine's life had continued after 1 November 2020, she would be the sole parent of Isaac and Jethro. As their parent she had a legal duty to provide for them the necessities of life. As James is dead for the purpose of this assessment, there is no basis to take into account what services he may have hypothetically provided had he survived.
   3. Jethro and Isaac's entitlement to compensation for loss of domestic services is not dependent upon their 'need' for such services. They are entitled to be compensated for the tangible advantages they have lost as a consequence of Sabine's wrongful death.
   4. Until the date when Jethro turns 18, I consider that the loss should be apportioned equally between them but after Jethro turns 18, I consider that the losses should be apportioned individually depending upon their ages.

The parties' submissions and agreed hourly rate

1. The parties had different views as to the reasonable number of hours which should be permitted in the assessment of damages for lost domestic services being the allowances for the care, supervision and services that Sabine would have provided but for her death. Before turning to a review of those submissions, I will make some additional observations with respect to the assessment of damages.
2. I bear in mind the comments made by Deane J in Nguyen v Nguyen[45] that damages under the Lord Campbell's Act are proportioned to the injury sustained by the death. The word 'proportioned' introduces an element of what is reasonable in the circumstances. The notion of what represents 'reasonable' or 'proportionate' compensation must take account of the need for the relevant services in the circumstances of the particular case. Further,

[T]he damages 'proportioned' to the 'injury' which a particular claimant sustains by way of lost [domestic] services cannot be realistically assessed without regard being paid to ... whether the particular services [in issue] were superfluous to the reasonable needs of the particular claimant. ...

1. His Honour concluded this passage of his remarks by saying that:

[W]here the ultimate burden of liability to pay damages under a Lord Campbell's Act action will ordinarily be cast upon the community generally through the direct and indirect cost of insurance premiums, that question must be answered by reference to current local standards and values. ...

1. As an aside, it is difficult to see any of the services that Elke and Steve have provided to Jethro and Isaac as being 'superfluous to [their] reasonable needs'. When the total number of hours is taken together at the agreed rate, the cost of replacement services may be seen to be 'expensive' when extrapolated at the agreed hourly rate of $35 per hour in the context of the unusual circumstances of this case.
2. In Nguyen v Nguyen, Dawson, Toohey and McHugh JJ said, at page 265, that the damages assessed cannot always be equated with the cost of such help. Further, the services performed by the deceased may not be capable of being reproduced by services which are commercially available and the scope and costs of commercially available services may be disproportionate in comparison with the value of the services which were actually provided by the deceased. Their honours said:

In circumstances such as that it will not be reasonable to regard the cost of substitute services as any more than a starting point in assessing a plaintiff's loss. Indeed, in cases where the disproportion is severe, the cost of commercially available services may offer no real guide at all. It must always be borne in mind that the damages to be assessed are those suffered by the plaintiff by reason of the death alone.

1. A case referred to by the parties was the Western Australian Full Court decision in Biddulph v Lenegan.[46] In that case a young child, Codie, was orphaned after the death of both of his parents through the negligent driving of a third party. He was only aged 1 at the time of the death of his parents.
2. The evidence that was led in the case of Biddulph included the cost of replacing lost domestic services provided by Codie's parents with a full-time nanny. The cost of a full-time nanny was $625 per week. The trial judge rejected such cost as being 'far too commercial in all the circumstances of this case'. On appeal, Steytler J (as his Honour then was) observed that the market commercial rate for replacing domestic services with a nanny at $625 per week should not automatically determine the compensation. His Honour applied a structure that from the date of death when Codie was aged 1 to preschool age, being aged 4, as requiring the full rate of $625 per week for the full-time live-in nanny. Then, from preschool to age 6 the full rate of $625 would reduce to $500 per week on the basis that services would not be required for school hours. Then, between the age of 6 and 17 an amount of $400 per week was allowed. Finally, in his 18th year an amount of $200 per week was considered to be a reasonable allowance. It was said that 'constant supervision' was required for Codie until age 17. These amounts were higher than permitted by the trial judge. The result of the appeal was that the case was remitted for reassessment.
3. What can be discerned from Biddulph is that the discounting of an award of domestic services is appropriate where children's needs change as they mature and their needs change over time. Further, even when there is evidence of commercial rates for replacement services, the court must exercise a judgement about what level of compensation is appropriate for each stage of a child's development.
4. My view of the present case is that, when considering past loss of domestic services for the period from the date of death to the date of the publication of this decision, the facts of this case are clearly that the plaintiffs require constant supervision, including overnight supervision, for the entire period that has ensued since Sabine's death. Put simply, these children cannot provide replacement services themselves.
5. As I have already noted, Elke gave detailed evidence of the services that she (and Steve) have provided since Sabine's death. No costs have been incurred in obtaining domestic services, however, as is well established, that is not an impediment to assessing monetary compensation for the provision of such a service.
6. Elke's evidence was that Jethro had, over the years got up from time to time during the night and came into Steve and Elke's room, but by the date of the trial he was no longer doing that.[47] The evidence at trial was that Isaac still gets up, he comes and looks for Elke and wants a cuddle and wants to be tucked back into bed or even, on occasions, stays the rest of the night with Elke in her bed.[48] As I have noted, in Biddulph, Steytler J accepted that Codie would need to be constantly supervised at least until his 17th birthday. Jethro and Isaac's needs for constant supervision are similar, if not greater than the position identified with respect to Codie by Steytler J in Biddulph due to their medical conditions.
7. In the present case, no part of the assessment of lost domestic services covers a period when the plaintiffs were not of school age. At the time of Sabine's death, Isaac was about to enter Year 1 (a matter of approximately eight weeks after Sabine's death).
8. I consider that it is appropriate to allow damages for the loss of domestic services initially by a calculation which takes account of the commercial cost of those services on the basis of the rate agreed by the parties and then proceeds upon a basis that there will be a progressive lessening in the day to day care required but taking into account that each of the plaintiffs would need overnight supervision until their 18th birthdays.
9. There was no suggestion that there could be any lessening of an hourly rate based upon the nature of the services provided. For example, a lesser rate that would apply for a 'sleeping shift' when Jethro and Isaac would sleep each night. The Commission's argument was that no allowance should be made for the hours when the boys would sleep each night. The plaintiffs argued that they needed supervision for all of the time they would be asleep. Further, given the agreement between the parties as to the cost of all services, the allowance should be made at the agreed rate of $35 per hour. In the circumstances of the agreement having been made between the parties, I will apply this agreed rate to all hours of services irrespective of any qualitative nature of the services.
10. I consider that it is appropriate to calculate future domestic and supervision services by reference to Jethro and Isaac's ages. As the boys get older, notwithstanding their learning difficulties, it is realistic that they can become more independent, be left unsupervised for increasingly greater periods of time and also contribute to household chores. However, to use the phrase from the decision of Biddulph of 'constant supervision', in my view, taking all matters into account, including the plaintiffs' medical conditions, I consider an appropriate age for constant supervision to cease is the age when each of Jethro and Isaac turn 18 respectively.
11. Notwithstanding that constant supervision is a term used, it must have some flexibility in that as teenagers mature to adulthood ongoing supervision changes such that children can be left for greater periods of time on their own and still be supervised so to speak.
12. The plaintiffs' submission on the assessment of future care, supervision and assistance services included that Jethro and Isaac will require a greater level of care, assistance, services and supervision compared to children without such conditions and that they would have remained dependent on Sabine for a substantially longer period of time. As I have already said, I think there is merit in that submission. I also accept the plaintiffs' submission that but for Sabine's death, Jethro and Isaac would have received the benefit of parental care, supervision and services from Sabine for the majority of the time that they were not at school. That includes all times Jethro and Isaac would be (and have been) sleeping, as they could not be left unattended during the night, and they would have received the benefit of direct and indirect care, supervision and assistance services at those times.
13. The plaintiffs submitted that future care, supervision and services benefits should be calculated on the basis that the current level of care, supervision and services (which the plaintiffs had submitted would comprise 144 hours per week) would continue at the same level until they were at least 15 years of age respectively. Further, between 15 and 18 years of age it would be reasonable to proceed on the basis that their care, supervision and services would have reduced by 25%. Between the ages of 18 and 25 their care, supervision and services would be progressively reduced. Because of their respective ages, the plaintiffs submitted that their future losses of care, supervision and services benefits should be calculated over six distinct periods based around age milestones. Those periods were as follows:
    • Period 1 from the date of delivery of reasons until Jethro turns 15 being 2 February 2028. In this period of time Jethro and Isaac would have continued to receive care, supervision and services benefits at the same rate as for past loss of services and that these benefits should be shared between themselves evenly.
    • Period 2 being the period from Jethro's 15th birthday until he turns 17, during which time Isaac would be 13 and 15, being the period 3 February 2028 - 2 February 2030. In this period of time, Jethro's loss of care, supervision and services benefits would have been reduced by 25% but Isaac's loss of care, supervision and services benefits would have continued on the unreduced basis as for Period 1.
    • Period 3 from when Jethro turns 17 until the age of 18 which is a period 3 February 2030 to 2 February 2031. During Period 3 Isaac will go from age 15 to 16 and Jethro would go from age 17 to 18. In this period of time the plaintiffs submitted that Jethro's loss of care, supervision and services benefits would have reduced by 25% from Period 1 and Isaac's loss of care, supervision and services benefits would also reduce by 25% from Period 1.
    • Period 4 which is a period from 3 February 2031 to 2 February 2033 from when Jethro turns 18 until the age of 20 and Isaac goes from age 16 to 18. The plaintiffs submitted that Jethro's loss of care, supervision and services benefits in this period would be reduced by 50% from Period 1. Isaac's loss of care, supervision and services benefits would be reduced by 25% from Period 1.
    • In the period identified as Period 5 being Jethro being aged 20 to 25 years of age and Isaac going from age 18 to 23 both Jethro and Isaac's loss of care, supervision and services benefits would be reduced by 50% from Period 1. Illustrative of the plaintiffs' submission was that in this period of February 2033 to February 2038 each of Jethro and Isaac would receive 36 hours per week of care, supervision and services benefits from Sabine or a total of 72 hours per week. As I will come to, I think that such a level is excessive even with the speculative nature of the services that Sabine would have provided her young adult sons had she survived.
    • Period 6 which is from February 2038 to February 2040 during which time Isaac would receive care services being between the age of 23 - 25 at the rate of 36 hours per week. The total claim of the plaintiffs for future loss of care, supervision and services is $1,869,000 which the plaintiffs submit should be divided as follows:

1. The Commission's submission on past and future loss of care, supervision and services benefits was, in substance, as follows:
   1. From the date of Sabine's death to the date of delivery of reasons a reasonable allowance for the provision of care, supervision and services benefits to Jethro and Isaac that would have been performed by Sabine would equate to 6 hours per day or 42 hours a week.[49]
      1. With respect to future loss of care, supervision and services:

(a) Sabine would provide care, supervision and services for a total of 42 hours per week for both of the boys until they turned 15. As I understood the submission, these hours would not include any of the time that Jethro and Isaac was sleeping overnight.

(b) From the ages of 15 - 18 a 50% reduction should be made to account for the likelihood that Jethro and Isaac will be working part-time jobs, contributing to household chores (including dishes, cleaning and landscaping) and generally living more independently without requiring constant supervision in waking hours.

(c) From the age of 18 it is unlikely that Sabine would have provided any care, supervision or services in circumstances where both Jethro and Isaac were likely to be working full-time, driving independently and may have entered into relationships and would likely be providing services themselves to assist Sabine while living at home. It was, however, acknowledged by senior counsel for the Commission that the plaintiffs may still be living at home after the age of 18 and that Sabine for example, 'might be cooking dinner for them' but otherwise services would drop off completely after the boys turned 18 respectively.

1. In calculating Jethro and Isaac's future losses of care, supervision and services benefits, I consider it is appropriate to make that calculation over four distinct periods:
   1. Period 1 being the period from the date of delivery of these reasons until the date Jethro turns 15 being 2 February 2028.
   2. Period 2 being the period from 3 February 2028 until Jethro turns 18 being 2 February 2031.
   3. Period 3 being the period from 3 February 2032 until the date Isaac turns 18 being 18 March 2033.
   4. Period 4 being distinct periods from when Jethro and Isaac each turn 18 until a time when Sabine would no longer provide domestic services for their benefit. In Jethro's case likely in his early 20s but, as I will turn to, in Isaac's case probably up to age 25. However, over the age of 18 I consider that domestic services would decrease in frequency and the number of hours Sabine would spend.

1. As I have noted, the parties had different views of whether compensation should be allowed for the hours when the boys would be sleeping.
2. But for the fatal accident, Jethro and Isaac would have received the benefit of parental care, supervision and services from Sabine at all times, or the vast majority of times, they were not at school. This includes times when they would be sleeping.
3. Jethro and Isaac, being young children, could not be left alone and someone had to be available to attend to their needs if they arose. This type of passive care is a form of service, and the value of such care is compensable. In the High Court decision of Van Gervan v Fenton[50] Deane and Dawson JJ described such care (in the different context of gratuitous services) as 'protective attention' and noted that constant care and attention constitutes the provision of services.
4. I consider that protective supervision is a form of domestic service recoverable within the terms of the Act. So much so was seemingly recognised by the calculation of loss in Biddulph.
5. For the reasons already given, I do not accept the Commission's submission that sleeping hours or 'protective attention' should be excluded from an assessment on the basis that James would have provided those services or care jointly as part of a two-parent household with Sabine or on any other basis.

Domestic and supervision services date of death to date of trial

1. At the date of the death of their parents Jethro was 7 and Isaac was 5. At the date of the delivery of these reasons for decision Jethro is now 12 and Isaac is 10. Clearly from the date of Sabine's death to the date of these reasons the boys were (and are) of such a tender age that they required (and continue to require) supervision and domestic services and assistance. It was not contended otherwise by the Commission.
2. A starting point for calculating loss of services, as suggested by the plaintiffs, is to determine the total number of hours in a week (168 hours) and then deduct the hours when Sabine would not have been providing domestic services, care and attention (including 'protective attention') for the benefit of the boys. I accept Elke's evidence as being honest, accurate, reliable and truthful, and I accept her description of the care services that she and Steve have provided to Jethro and Isaac since Sabine's death based primarily on the schedule Elke prepared in 2022. This evidence informs my assessment of what services Sabine would have provided. I also accept the Commission's assessment that 42 hours of direct services by Sabine is a reasonable estimate of the time that Sabine would spend providing care, supervision and services for the benefit of Jethro and Isaac (but as I have explained, that would not include the hours that the boys would be sleeping).
3. For the period from Sabine's death to the date of these reasons, I make the following findings about the hours when Sabine would not have been providing domestic services:
   1. School hours and after-school care: There is approximately 200 school days per year in Western Australia. Sabine would have worked full-time from February 2021, and as an employee of BCCA, she would have had access to after-school care and holiday care. The time from drop-off to pick-up, including use of after-school care to facilitate her full-time work, would be approximately 8½ hours per school day (including mandatory breaks). This equates to 40 hours approximately per week on average over the year.
   2. Time with family, friends and activities: If Sabine had survived, she would reasonably have relied on her parents (the boys' grandparents) to assist in raising the boys. The evidence shows that on the weekend of the fatal accident, the boys were being cared for by their grandparents. I consider it reasonable that the boys would spend time with grandparents, other family members, and friends, and would participate in supervised sporting activities including training. A reasonable allowance is 10 hours per week.
   3. School holiday programs: There are approximately 60 weekdays of school holidays per year (6 weeks summer, 2 weeks in April, 2 weeks in July, 2 weeks in September/October). As a sole parent working full-time, Sabine would likely have utilised vacation care programs at BCCA. I consider a reasonable estimate of Sabine's use of vacation care programs would be 30 days per year to cover times when she would be working herself, but also potential periods when she may not be working but the boys would benefit from being engaged in other activities. At 7.5 hours per day, this equates to 225 hours per year or 4.33 hours per week (rounded to 4.5 hours per week for calculation purposes).
4. Based upon these assumptions the total hours when Sabine would reasonably have been providing domestic services and supervision to both boys together equates to 111 hours per week calculated as follows:

Less time Sabine was not providing domestic services

School hours/after school care and time that Sabine was working

Time Jethro and Isaac likely spend with other family members including their grandparents, friends or sporting activities supervised by other adults but not Sabine

Total time Sabine provided services to children

1. I consider 111 hours per week to be the appropriate baseline figure for a calculation of lost domestic services for the period from Sabine's death to the date of the publication of these reasons. This figure represents the hours Sabine would have been providing domestic services, including both active care and protective supervision, to both boys together. Given that the boys lived together as a family unit and much of the care would have been provided to them jointly, it is appropriate to calculate the total hours for both boys together and then allocate the allowance equally between them. If an assumption is made of the average number of hours the boys were sleeping, the figure of 111 hours is also broadly consistent with the Commission's submission of 42 hours per week of direct services being provided by Sabine.
2. Returning to the weekly figure of 111 hours per week, my calculation of the loss of Sabine's past services is as follows:

Total (including interest - $1,098,429.57), round to

1. It is appropriate to divide that award, including interest, equally between Jethro and Isaac. Accordingly, for the loss of Sabine's past services including interest to the date of publication of these reasons I calculate that Jethro and Isaac are each entitled to a sum $549,215.

Period 1: Until Jethro turns 15 (date of reasons - 2 February 2028)

1. Between the date of these reasons and 2 February 2028, I consider that the number of hours required for the domestic care and attention for both children will be commenced at a number of hours similar to the figure in [182] above. It is reasonable to assume that the likely number of hours that Sabine would have provided care, supervision and services to each of the boys until they turn 15 would be a total of 42 hours per week and which would include the time spent in waking hours. When combined with the hours for when the boys would be expected to be asleep, in the period to 2 February 2028, I would calculate that to be a further amount of around 63 hours. Combined with the sum of approximately 42 hours in direct services that would see a slight drop over the hours from the time of death. Accordingly, an appropriate calculation for this period is 105 hours per week. The calculation in this respect is as follows:

1. In my opinion it is appropriate to apportion this sum equally, being:

Period 2: Date Jethro turning 15 until turning 18 (3 February 2028 - 2 February 2031)

1. I consider that a reasonable age to cease any allowance for overnight domestic supervision services (namely, a time when the boys are sleeping but require supervision in the form of 'protective supervision') is until they turn 18 respectively. In the period from Jethro turning 15 until turning 18 it is reasonable to assume that, at least in Jethro's case, he will be able to achieve more independence in these years. During this period, I consider Isaac will progressively achieve more independence as well. At the time Jethro turns 18, Isaac will be about to turn 16. Consequently, it is reasonable to assume that the number of hours provided in domestic and supervision services may would reduce. In my view, an appropriate weekly figure during this period for the care, supervision (including overnight supervision) and domestic services that Sabine would have provided would equate to 85 hours per week.
2. The calculation in this respect is as follows:

Loss for period from 2 February 2028 to 2 February 2031

1. In my opinion it is appropriate to apportion this sum equally, being

Period 3: Date Isaac turning 18 (from 3 February 2031 to 18 March 2033)

1. After Jethro turns 18 and until Isaac turns 18, overnight supervision services would only be required for Isaac. As I have already outlined, I consider a reasonable time for each of the boys to cease being awarded any overnight supervision services is when they attain the age of 18. In the period of time from February 2030 until Isaac turns 18 on 18 March 2033, I consider that both Jethro and Isaac will be progressively more independent and at the date that Isaac turns 18, Jethro would already be 20 years of age. As I will shortly turn to, I consider it is reasonable that Sabine would continue to provide some level of domestic services to both of her sons after they had turned 18.
2. With respect to Isaac, I consider a reasonable allowance for the care, domestic and supervision services that Sabine would have provided to Isaac[51] during the period of time from 3 February 2031 to 18 March 2033 equates to 67 hours a week, being 12 hours per week in provision of care, supervision and services to Isaac during 'waking hours', noting that during waking hours the need for supervision would be reducing and it is reasonable to assume that each of the boys would have a greater level of independence. However, night-time supervision would still be required in this period for Isaac. I consider a reasonable weekly allowance of, say, 67 hours, calculated taking into account an appropriate deferred multiplier, is as follows:

Loss for Isaac from 3 February 2031 to 18 March 2033

1. With respect to calculating a reasonable number of hours for the provision of domestic services for the period from when the boys each turn 15 until the age of 18, I have accepted the submissions of the Commission that in that period of time from when the boys each turn 15 until the age of 18, a reasonable level of hours for the provision of domestic services would be around 21 hours per week for the benefit of both boys. The Commission also submitted that no allowance for domestic services should be made for either Jethro or Isaac once they turn 18. I have not accepted this part of the Commission's submissions.

1. For the periods after the age of 18 I propose to assess lump sums for each of Jethro and Isaac. I consider that for the periods from when both Jethro and Isaac turn 18, it seems probable that they would remain living at home. The number of services reasonably expected to be provided by Sabine would be lower and more infrequent as the plaintiffs get older and after they turn 18. However, for the reasons I have outlined when discussing the boys' medical conditions, I consider it probable that Sabine would continue to provide domestic assistance and services to both of her sons into their early 20s.
2. I consider that Sabine would be likely to provide more services to Isaac than Jethro after the age of 18. For domestic services for Jethro after he turns 18, I will make a further total allowance of $25,000. For the period from when Isaac turns 18, I consider Sabine would be likely to provide more ongoing care and assistance services to Isaac and for a longer period of time than for Jethro given his medical conditions. I consider a reasonable lump sum allowance for Isaac for domestic care and assistance services after the age of 18 is $45,000.
3. As I have said, I have reduced the calculation of all future losses by 5% for contingencies to account for the inherent uncertainties in long-term assessments, including the possibilities that the boys may achieve greater independence than anticipated, that Sabine may have had periods when she was unable to provide services, or that circumstances may have changed in ways that cannot be predicted.

1. By way of summary, my assessment of the calculation of the total damages for Jethro and Isaac is as follows:

Past Loss of Care, Supervision and Services (including interest):

1. The parties have agreed that upon publication of these reasons for decision, I should not enter judgment for a period of at least 14 days so as to enable the appointment of an appropriate trustee. The reason for this is so that reasonable trustee fees may be added to the amounts calculated by way of damages. It is appropriate to defer entry of judgment, as the sums of money to which Jethro and Isaac are entitled to need to be held on trust for their benefit until they reach the age of 18. Further, there may need to be minor adjustments to the figures I have calculated to take into account the period from the delivery of these reasons to the date when judgment is ultimately entered including as to interest. Accordingly, I make the following orders:
   1. The proceedings be adjourned to 9.15 am on 12 November 2025 for the entry of judgment and the making of formal orders consistent with these reasons for decision.
   2. The parties confer and file a minute of agreed orders, or absent agreement separate minutes of orders, to give effect to these reasons for decision (and where necessary to correct any arithmetical errors in calculations) and to propose a trustee (and prescribe a sum of money which should be set aside for trustee fees), and for the appropriate costs orders of the proceedings.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] Relying on s 7(2) of the Motor Vehicle (Third Party Insurance) Act 1943 (WA).

[3] All Australian states adopted a version of Lord Campbell's Act after it introduced the new cause of action for wrongful death into the law of England.

[4] For a comprehensive, elucidating and entertaining account of the historical background of the legislation and Lord Campbell's life see Professor Peter Handford, Lord Campbell and the Fatal Accidents Act (2013) 129 The Law Quarterly Review 420. See especially pages 423 - 424 for accounts of how Lord Campbell was remembered immediately after his death in 1861, including a description that '(he) was the triumph of mediocrity' amongst other pejorative descriptions of his character and abilities. Happily, subsequent historians and biographers when referring to his attributes as a law reformer have been much kinder than his contemporaries.

[5] Baker v Bolton (1808) 170 ER 1033.

[6] Section 6(4) states that any damages recovered shall be divided amongst the persons for whose benefit the action was brought in such shares as the court sees fit.

[7] Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531 [13] - [14], [53]; De Sales v Ingrilli [2002] HCA 52; (2002) 212 CLR 338 [11], [14] (Gleeson CJ); [91] - [92] (McHugh J).

[8] See for example Nguyen v Nguyen (1990) 169 CLR 245, 256 - 257 (Deane J); De Sales v Ingrilli [9] (Gleeson CJ).

[10] De Sales v Ingrilli [13] - [14] (Gleeson CJ); Nguyen v Nguyen (257) (Deane J).

[11] Nguyen v Nguyen (262) - (264) (Dawson, Toohey & McHugh JJ).

[12] This statement of the relevant principles is derived from Luntz H & Harder S, Assessment of Damages for Personal Injury and Death (5th ed, 2021), par 10.2.3.

[13] Nguyen v Nguyen (255), (256), (263).

[14] Seymour v British Paints (Australia) Pty Ltd [1967] Qd R 227.

[15] Ruby v Marsh [1975] HCA 32; (1975) 132 CLR 642, 658; see Nguyen v Nguyen (263).

[16] NSW Insurance Ministerial Corporation (formerly GIO) v Willis (1995) 35 NSWLR 668.

[20] Nguyen v Nguyen (262) - (263).

[22] See for example De Sales v Ingrilli [186] (Callinan J).

[24] Such calculation being for a financial sum of the benefits Sabine would have brought to her sons being conducted on a basis of pecuniary gains and losses consequent upon the death: See for example, De Sales v Ingrilli [11] - [12] (Gleeson CJ).

[25] Although the tax returns form part of the Exhibit 2, no evidence was led about what James' occupation was or any of his employment history. The Commission relied upon James' income for the purposes of the calculation of Sabine's personal consumption.

[27] Exhibit 1, plaintiffs' trial bundle, page 244.

[30] Aside from the issue of Sabine's level of personal consumption which I turn to later in these reasons.

[34] Attention deficit hyperactivity disorder.

[39] Plaintiffs' trial bundle (Exhibit 1), pages 230 - 234.

[40] See for example Wheat v Wisbey [2013] NSWSC 537 [128].

[42] Michael J Leah CA, Ms Julia Bossert CA & Mr Cory Plover, Personal Consumption Percentages in Australia - Current Tables (25 January 2018).

[43] Exhibit 1, based upon pages 210 - 216 inclusive being her relevant payslips for that period.

[44] Exhibit 3. I have used the Level 4B Team Leader position for this calculation because I did not have evidence of the Level 4C Team Leader position?

[46] Biddulph v Lenegan (Unreported, WASC, Library No 990076, 19 February 1999).

[49] Defendant's amended schedule of damages filed 28 February 2025, par 47.

[50] Van Gervan v Fenton (1992) 175 CLR 327.

[51] I have separately calculated the services Sabine would have provided to Jethro during the period 3 February 2030 to 18 March 2033 as part of a global assessment of services to Jethro after he had turned 18 in the next part of my reasons.