Calculation of Damages
23 Under a claim under the Act only pecuniary loss is calculated, however that task is always difficult and "all but the simplest claims under the Act present uncertain and imponderable elements so that an accurate arithmetic approach is quite impossible." (Phali v Commissioner for Railways 164-5 NSWR 1545 at 1547). In GIO of NSW v Cox (1976) 9 ALR 194 Gibbs J held at 197 that as we can never know for certain what would have happened if the deceased lived, calculations cannot be done on a precise mathematical basis.
24 In Allan v The Commonwealth (1980) 24 SASR 581 Wilson J commented as to the then changes to social customs and said:
"Old ideas of the wife living in a fixed and settled routine, allowed so many pounds a month for the household, in receipt of so much pin money, subject to restraint upon anticipation, and looking forward to the dowerhouse in widowhood or to some other variant secured to her by marriage settlement, have been jettisoned by the community, Gone, too, are the almost mathematically precise ingredients by reference to which a widow might be called on to assess her chances in the re-marriage market. Instead, we are presented with working wives displaying independence in action and in matters of finance, households run almost as joint enterprises by two equally contributing partners in the workforce, marriages that are almost indistinguishable from marriages and, speaking generally, vicissitudes in family life which, in their frequency and magnitude, can bewilder, not only a particular family under review, but also those who witness them. In short, the present day trial judge would be deluding himself and the community if he were to pretend to impeccable scientific reasoning and certainty when assessing compensation to widows and widowers who prefer claims like the one now before me."
25 This is particularly applicable to the present proceedings as indeed much greater changes in society have occurred since that decision in terms of the independence of women. This was a family of extremely high income and therefore high disposable income where the wife has a considerable earning capacity herself in a time where women are very much more financially independent in decision making and in emotional and financial terms from their marriage partners. This is particularly so in the case of the plaintiff who is a very strong willed independent and assertive person in her own right with a high level of skill and education.
26 In these proceedings, a lump sum must be assessed representing the loss to all defendants on whose behalf the action is brought and that sum has to be apportioned between the dependents. In the present case the parties have submitted evidence on a total loss calculation basis, adducing evidence on dependency of these persons on whose behalf the claim is made. The question of the apportionment between the plaintiff and her two children has been reserved for further argument as, indeed, has the question of costs. The issue of trustee management fees was also not argued arising out of the payments both lump sum and periodical made under a workers compensation policy in respect of the death of the deceased was also reserved for argument.
27 Australian courts have now for a long time relied on actuarial computations and in the present proceedings the case for the plaintiff has relied on actuarial evidence based on assumptions furnished by the plaintiff's solicitors. In Cullen v Trappel (1980) 146 CLR 1 at p. 17, it was held that a court should proceed as accurately as possible with the assistance of actuarial material (per Gibbs J) however the Supreme Court of Canada in Andrews v Grand and Toy Alberta Ltd [1978] 2 SCT 229 held at p.236-7:
"The apparent reliability of assessments provided by modern actuarial practice is largely illusionary, for actuarial science deals with probabilities, not actualities. This is in no way to denigrate a respected profession; but it is obvious that the validity of the answers given by the actuarial witness, as with a computer, depends upon the soundness of the postulates from which he proceeds. Although a useful aid and a sharper tool than the "multiplier-multilicand" approach favoured in some jurisdictions, actuarial evidence speaks in terms of group experience. It cannot and does not purport to speak as to the individual sufferer. So long as we are tied to lump-sum awards, however, we are tied also to actuarial calculations as the best available means of determining amount."
28 In these proceedings it is in my view proper that the considerable actuarial calculations admitted in evidence be used as the basis for calculating damages.