//
[2012] QSC 311
General information, not legal advice.
Supreme Court of Queensland
2012-10-12
Henry J
Original judgment source is linked above.
1. Judgment for the plaintiff (Emily Kepa, for and on behalf of the estate and dependents of Frank Billy, deceased) against the defendant in the sum of $500,000.
2. I direct pursuant to s 35(9) of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) that:
(a) $5,065.50 of the judgment sum is payable for funeral expenses;
(b) the balance of the judgment sum, after deduction from it of any costs not recovered from the defendant, shall be divided amongst the following persons in the following proportions:
1. Judgment for the plaintiff (Florence Kepa, for and on behalf of the estate and dependents of Fred Bowie, deceased) against the defendant in the sum of $500,000.
2. I direct pursuant to s 35(9) of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) that:
(a) $5,065.50 of the judgment sum is payable for funeral expenses;
(b) the balance of the judgment sum, after deduction from it of any costs not recovered from the defendant, shall be divided amongst the following persons in the following proportions:
1. Judgment for the plaintiff (Francis Bowie, for and on behalf of the estate and dependents of Mardie Bowie, deceased) against the defendant in the sum of $388,255.20.
2. I direct pursuant to s 35(9) of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) that:
(a) $5,065.50 of the judgment sum is payable for funeral expenses;
(b) the balance of the judgment sum, after deduction from it of any costs not recovered from the defendant, shall be divided amongst the following persons in the following proportions:
1. Judgment for the plaintiff (Mimia Whap, for and on behalf of the estate and dependents of Helena Woosup, deceased) against the defendant in the sum of $500,000.
2. I direct pursuant to s 35(9) of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) that:
(a) $5,065.50 of the judgment sum is payable for funeral expenses;
(b) the balance of the judgment sum, after deduction from it of any costs not recovered from the defendant, shall be divided amongst the following persons in the following proportions:
1. Judgment for the plaintiff (Elizabeth Stephen, for and on behalf of the estate and dependents of Gordon Kris, deceased) against the defendant in the sum of $500,000.
2. I direct pursuant to s 35(9) of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) that:
(a) $5,065.50 of the judgment sum is payable for funeral expenses;
(b) the balance of the judgment sum, after deduction from it of any costs not recovered from the defendant, shall be divided amongst the following persons in the following proportions:
DAMAGES - DEPENDENCY CLAIM - ASSESSMENT OF DAMAGES - where a passenger aircraft crashed, killing passengers - where the spouse of each deceased passenger claims damages for and on behalf of the estate and the dependents - where the claims are made under the Civil Aviation (Carriers' Liability) Act 1964 (Qld) which in turn applies part of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) - how that damage is to be assessed - how the value of services is to be assessed in pecuniary terms
DAMAGES - DEPENDENCY CLAIM - ASSESSMENT OF DAMAGES - whether the relatives' share of the financial benefit the deceased would have brought to the family should be assessed using an averages approach or a factual approach - which averages approach is appropriate
DAMAGES - DEPENDENCY CLAIM - ASSESSMENT OF DAMAGES - LOSS OF INCOME - where each of the deceased were at the time of their deaths completing apprenticeships and or TAFE courses - whether they would have completed their courses - whether there were prospects of consistent employment on completion - how those factors are to be taken into account
STATUTES - INTERPRETATION - TRADITIONAL ADOPTION - where the relevant definition of family members included "adopted persons" - whether traditionally adopted persons are "family members"
STATUTES - INTERPRETATION - where s 35(3) of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) did not expressly address whether or not a passenger's child born after the death was for the purposes of the section a child of the passenger - whether it can be said the child sustained damage within the section by reason of his father's death
DAMAGES - DEPENDENCY CLAIM - ASSESSMENT OF DAMAGES - SERVICES - where each of the deceased provided services, including hunting and gathering - to what extent the hunting and gathering activities are compensable as a lost service - whether the award should be based on the loss of the material benefit of food on the table or by the hours such activity occupied - where the hunting and gathering is a way of life
DAMAGES - DEPENDENCY CLAIM - ASSESSMENT OF DAMAGES - SERVICES - whether the loss of each of the deceased as hunter-gatherer extends to the loss of parental education of traditional local knowledge and skill needed to fish
DAMAGES - DEPENDENCY CLAIM - ASSESSMENT OF DAMAGES - VICISSITUDES OF LIFE - where the deceased were indigenous - where indigenous persons have lower than average lifespans and higher than average incidence of poor health - whether the usual allowance for the vicissitudes of life should be increased -
STATUTES - INTERPRETATION - INTEREST AND COSTS - whether the financial cap under the applicable act is inclusive of interest
Colombera v MacRobertson Miller Airlines [1972] WAR 68
De Sales v Ingrilli [2002] HCA 52; (2002) 212 CLR 338
Nguyen v Nguyen (1990) 169 CLR 245
Re M and the Adoption of Children Act (1989) 13 FamLR 333
Ruby v Marsh [1975] HCA 32; (1975) 132 CLR 642
Schimke v Clements & Suncorp-Metway Insurance Ltd [2011] QSC 182
Saunders v Ansett Industries (1975) 10 SASR 579
SS Pharmaceutical Co Ltd & Anor v Qantas Airways Ltd (1988) 92 FLR 231
Swiss Bank Corp v Brink's MAT Ltd [1986] QB 853
Thornton v Lessbrook Pty Ltd [2010] QSC 308
R Williams QC, T W Quinn, J Trevino for the defendant
Emily Kepa, for and on behalf of the estate and dependants of Frank Billy, deceased (191/07)
Florence Kepa, for and on behalf of the estate and dependants of Fred Bowie, deceased (192/07)
Francis Bowie, for and on behalf of the estate and dependants of Mardie Bowie, deceased (193/07)
Mimia Whap, for and on behalf of the estate and dependants of Helena Woosup, deceased (194/07)
Elizabeth Stephen, for and on behalf of the estate and dependants of Gordon Kris, deceased (195/07)
[1] On 7 May 2005 a passenger aircraft crashed near Lockhart River in Far North Queensland. Among the lives lost in that tragedy were five indigenous persons from the communities of Injinoo and Bamaga, near the western tip of Cape York Peninsula.
1. Frank Billy, the de facto husband of Emily Kepa;
2. Fred Bowie, the de facto husband of Florence Kepa;
4. Helena Woosup, the de facto wife of Mimia Whap; and
5. Gordon Kris, the de facto husband of Elizabeth Stephen.
[3] Each of the spouses of the deceased claim damages for dependency for and on behalf of the estate and dependents of each of the deceased persons.
[4] These were not the only claims arising from the tragedy. A claim arising from the death of a policewoman in the crash was dealt with in Thornton v Lessbrook Pty Ltd.[1]
[5] It was convenient to hear these five claims together, particularly given the likelihood of generally similar approaches being adopted in the determination of the pecuniary value of the financial support and services provided by the deceased persons to their dependents.
[6] The claims are made under the Civil Aviation (Carriers' Liability) Act 1964 (Qld) which, pursuant to s 4, applies to the carriage of a passenger in an aircraft operated by the holder of an airline licence in the course of commercial transport operations under a contract for the carriage of the passenger within Queensland. This case involved such carriage.
[7] Section 5 of the Queensland Act applies the provisions of pt 4 of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("the Commonwealth Act") to such carriage. Within pt 4, s 28 imposes no fault liability upon the carrier for damage sustained by reason of a death or personal injury suffered by a passenger resulting from an accident on board the aircraft. However, s 31 of the Commonwealth Act limits the liability of a domestic carrier to the amount of $500,000 in respect of each passenger.
[8] It is common ground that the no fault liability imposed by s 28 and its quid pro quo, the damages limit imposed by s 31, applies to the five claims. Quantum is in issue.
[9] The liability under pt 4 of the Commonwealth Act is, pursuant to s 35(2), in substitution for any civil liability of the carrier under any other law in respect of the death of the passenger. Thus, the liability under the modern form of a Lord Campbell's Act action contained in pt 4 of the Supreme Court Act 1995 (Qld) is excluded. This necessarily excludes the application of s 23A of the Supreme Court Act, which precludes the court from taking into account financial benefits that a spouse may receive as a result of a new relationship.
[10] However, s 35(2) does not have the effect of excluding ch 3 of the Civil Liability Act 2003 (Qld). That chapter applies to assessment of, not liability for, an award of personal injury damages.[2] Personal injury includes fatal injury pursuant to the dictionary of Sch 2 of that act. The chapter's provisions of potential relevance include s 57, which provides that in assessing an amount of damages as a lump sum for a future loss of gratuitous services the amount must be the present value calculated using the prescribed discount rate, which is five per cent.
[11] Under the Commonwealth Act only one action is to be brought in respect of the death of any one passenger "for the benefit of all persons for whose benefit the liability is ... enforceable".[3] The amount recovered in the action is to be divided amongst the persons entitled in such proportions as the court directs.[4]
[12] The liability imposed by s 28 is enforceable, pursuant to s 35(3), "for the benefit of such of the passenger's family members as sustained damage by reason of his or her death".[5]
Are traditionally adopted persons "family members"?
[13] At the relevant time s 35(5) of the Commonwealth Act provided:
"For the purposes of subsection (3) the members of the passenger's family shall be deemed to be the wife or husband, de facto spouse, parents, step-parents, grandparents, brothers, sisters, half-brothers, half-sisters, children, step-children and grandchildren of the passenger, and, in ascertaining the members of the passenger's family, an illegitimate person or an adopted person shall be treated as being, or as having been, the legitimate child of his mother and reputed father or, as the case may be, of his adopters."
[14] An issue in the proceedings is whether traditional adoptions, well known to occur in the Torres Strait Islands and some Cape communities, gives rise to relationships within the definition of family members.
[15] The practice of traditional adoption involves a child being given over in infancy to relatives of the child's parents for those relatives to raise as their own child.[6] Such adoptions do not yet have legislative recognition.
[16] The plaintiff identified an argument that such adoptions may now fall within the broader definition of family member contained in s 5 of the Commonwealth Act in its present form. However, the plaintiff did not press the argument[7] because the relevant legislation is the Commonwealth Act as it was at the time of the crash. It contained no such broader definition. The applicable definition of family member is that in s 35(5), referred to above.
[17] The words "adopted person" in s 35(5) are not defined. However, adoption has a meaning well known to the law, deriving from its history as an arrangement created by statute. As Young J observed in Re M and the Adoption of Children Act:
"Adoption came from Roman law ideas. Because of the feudal system in England there was little place for notions of adoption in the common law until it was introduced relatively recently by statute."[8]
[18] The ordinary meaning of an adopted person is a person who became the child of a person or persons other than the child's biological parents in consequence of a formal legal event provided for by statute. That event will typically have the practical effect of extinguishing the legal rights and obligations that ordinarily exist as between biological parent and child and deeming those rights and obligations created as between the child and the adoptive parent or parents. In Queensland at the time of the crash that event was an order for adoption by the chief executive under the Adoption of Children Act 1964 (Qld). There is no suggestion of such an order having been made in any of the present cases.
[19] The context of the references to an adopted person and adopters in s 35(5) does not suggest a broader than ordinary meaning. For instance, s 35(5) specifically recognised de facto spouse in addition to husband and wife. The latter derives from a formal legal event whereas the former does not. There could have been, but was not, a similar recognition in respect of informal or traditional adoptions. Section 35(5) does not include relationships by way of traditional adoption.
[20] Those connected to a deceased by traditional adoption will only come within the Commonwealth Act's definition of family members if they are in any event caught by the definition because of a legally recognised familial connection. For example, if a deceased male had been traditionally adopted by his grandparents and raised as if he were their own son, his grandparents would come within the definition of family member, not because they were his traditionally adoptive parents but because they were at law his grandparents.
[21] The damage sustained by the family members, which attracts liability and thus falls to be assessed, is, pursuant to s 28 of the Commonwealth Act, "damage sustained by reason of the death".
[22] Section 35(8) provides that in awarding damages the court is not limited to the financial loss resulting from the death. This means the loss need not be a monetary loss and may include future expected financial benefits and services.[9] It may for instance include the value of services the deceased would have provided around the home.[10] However, to assess damages it will be necessary to value the loss in pecuniary terms.
[23] The loss to be assessed is the net pecuniary loss, that is, the balance of the pecuniary loss to the deceased's relatives from the death over the pecuniary gains accruing from that event.[11] The proceeds of insurance policies or other benefits payable consequent upon death are excluded by s 38 from being taken into account in reduction of damages. An example given by Gleeson CJ in De Sales v Ingrilli[12] of a pecuniary gain accruing from death was the inheritance by a spouse of the capital from which the deceased spouse earned all of his or her income. None of the five cases here involved any material pecuniary gain accruing from death.
[24] The loss is the loss which occurred at the moment of death, as was explained by Gibbs J in Ruby v Marsh:
"What was then lost was a prospect of pecuniary benefit in the future. 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...No doubt the effects of such a loss may continue to be felt over a very long period but the loss itself - the loss for which compensation is given - is incurred at the death."[13]
[25] Notwithstanding that the loss of expectation of benefit is the loss which occurred at the time of death the conventional approach is to assess the loss of expected benefit in two stages, namely up to the time of judgment and thereafter.[14] Such an approach is justified, inter alia, on the basis that by the time of trial the court may take into account the events since death if relevant "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".[15]
[26] Because the court is dealing with the hypothetical situation of predicting what would have happened had there been no death, the assessment process is inherently imprecise. It is not susceptible to scientific demonstration or proof.[16] While the use of the ostensibly precise device of mathematical calculations in the assessment process is appropriate, it is inevitable those calculations must be premised upon various imprecise assumptions as to future variables about which reasonable minds may differ.
[27] There exists a risk that an accumulation of conscientiously assessed variables may give rise to an unjust outcome. The obvious safeguard against that risk is to ensure not only that the assumptions made in the process are fair and reasonable but also that they give rise to an ultimate outcome which is fair and reasonable.
[28] In De Sales v Ingrilli[17] Gleeson CJ helpfully explained the process of calculating damages for loss of expectation of pecuniary benefit:
"Calculating damages for the loss of a reasonable expectation of pecuniary benefit usually involves calculating a primary sum and then making such further adjustments or allowances as are necessary to produce a result that gives a true reflex of the loss. The nature of such adjustments and allowances will be influenced by the manner in which the primary sum is calculated. In a case like the present, there are three main elements in determining the primary sum. Each element involves speculative judgments, which cannot be made with accuracy. The court assesses what benefits the deceased would have brought to the family, in the form of either income or the provision of services. The court determines the share of that benefit that would have been enjoyed by a relative during the deceased's lifetime. And the court determines the period for which a relative could reasonably have expected to receive the benefit. For example, a surviving spouse may say that it was reasonable to expect to receive a benefit measured as a share of the deceased's income until the deceased's expected age of retirement. A child of the deceased may reasonably expect to receive such a benefit until the child reaches an age of expected financial independence. The primary sum awarded is the present value of a relative's total expected benefit. The calculation of the primary sum might itself be done by a method that involves allowing for contingencies such as are taken up in actuarial calculations of life expectancy, and the present value of a future income stream.
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."
[29] In summary, it is therefore necessary to ask:
1. What is the value of the benefits the deceased would have brought to the family in income and services?
2. What share of that would each family member have enjoyed the benefit of during the deceased's lifetime?
3. For what period could each family member reasonably have expected to receive the benefit?
4. What further contingencies should be applied to the primary sum so calculated?
[30] As already mentioned, the assessable benefits brought to the family by the deceased extend beyond the deceased's earnings to the value of the deceased's unpaid domestic services.
[31] The exercise of valuing lost services is theoretical and not premised on a requirement that they are in fact replaced because the fact they may not be replaced does not mean they were not a material benefit.[18]
[32] It is well settled that the loss of services commonly encountered in the setting of a suburban household, such as household maintenance and child care, is compensable.
[33] Similarly, it is well settled that calculation of the value of those services is not approached by reference to the commercial value of replacement services, as it tends to be to assess the Griffith v Kerkemeyer[19] component in personal injuries cases. The distinction is that the latter form of case is concerned with valuing need whereas dependency cases are concerned with valuing loss.[20] The extent to which those values coincide in a case will vary.
[34] It was explained in Nguyen v Nguyen that the actual expenses of substitute services is relevant in that it may provide some guidance, however:
"[T]he damages to be assessed are those suffered by the plaintiff and cannot always be equated with the cost of such help. The services formerly rendered by a deceased wife may not be capable of being reproduced faithfully by services which are commercially available and the scope and cost of the only services commercially available may be disproportionate in comparison with the scope and value of the services which were actually provided by the deceased wife. 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."[21]
[35] In the five cases here, the application of an hourly rate of $20 for the approximate hours of service by the deceased provides results after discounting that are fair and not disproportionate in comparison with the scope and value of the services that were actually provided by the deceased.
[36] A more difficult question arising in these proceedings is whether and to what extent the hunting and gathering activities of a deceased are compensable as a lost service. Evidence was lead of deceased having regularly hunted crayfish, fish, turtle and dugong and in turn supplying their families with food from the catch.
[37] The defendant submits any award in connection with such activity ought not be based on the hours such activity occupied and should be based solely on the loss of the material benefit it delivered to the family, viz, food on the table. The defendant emphasises that approach is consistent with the principle that the damages are to be confined to compensation for the loss of the reasonable prospect of material benefits to dependents that depended on the continuance of the deceased's life.[22]
[38] The defendant also submitted there was really no loss of food from fishing in any event because the local community members would share their catch so that the families' deceased would not go wanting. That submission involves a somewhat more optimistic outlook than is warranted by the evidence but in any event it wrongly focuses upon need when it is loss that is relevant. The plurality in Nguyen v Nguyen observed it is irrelevant to the assessment of loss that kind hearted relatives, friends and other community members may help out in the aftermath:
"Although the question must always be "what loss the claimant has in fact sustained by the death" (Baker v. Dalgleish Steam Shipping Co.), courts have been reluctant to conclude that where someone outside the immediate family voluntarily takes over the care of the household, especially the care of infant children, a deduction should be made from the assessment of damages due to a plaintiff, and reluctant to recognise that the loss suffered by a plaintiff is thereby reduced. The reasoning behind this reluctance has taken a variety of forms. In Hay v. Hughes, the grandmother of two children assumed their care upon the death of their mother, and the Court of Appeal held that the grandmother's services should be ignored in calculating the loss suffered by the children on the basis that:
"At the time of their mother's death it was anyone's guess what would happen to them and the defendant has not discharged the onus of establishing that at that time there was a reasonable expectation that the grandmother would act as she subsequently did."
...In other cases, the reluctance has stemmed from the belief that the care provided by the relatives was not a consequence of the death of the deceased but flowed rather from an independent source, namely, the generosity and altruism of the relatives: Voller v. Dairy Produce Packers Ltd.; Wilson v. Rutter. In the words of Chapman J. in Rawlinson v. Babcock & Wilcox Ltd.
"The loss resulting from the death is one thing; the steps which may be taken as a result of spontaneous individual volition by one, two or three uncles or relatives or friends...to alleviate the loss so resulting are quite different. ...It would to my mind be quite odious if a court had to assess what benefits had accrued, or were likely to accrue, to a victim of a tragedy from such motives."
...Whatever be the true basis of the reluctance - and it may be partly the belief that voluntary unsolicited assistance cannot be permanently relied upon - it has been accepted that this form of assistance should not be brought into account in relief of the wrongdoer."[23]
[39] What then has been lost? It is not food on the table acquired with income. If it were, it would be subsumed within the loss of income component. Nor should the loss be confused as having a value necessarily commensurate with the purchase price of seafood at a fish shop in the context of an urban lifestyle in which most food is bought.
[40] The loss is not the loss of food on the table per se. It is the loss of food on the table provided by the services of the deceased as part of a way of life; that is, it is the loss of a service. It is likely that service was in any event the only realistic option in that remote location by which such food could be readily procured and provided. However, the service was carried out in accordance with long standing custom, albeit with modern adjustments, such as outboard motors. Hunting and providing like this was a way of life. It bears no comparison to the occasional fishing trip to which some urban dwellers recreationally aspire. To value the provision of this service by reference to the purchase price of fresh seafood from a hypothetical (non-existent) local fishmonger is to value it only by reference to the urban way of life. It is in effect to say the only compensable method of provision of seafood in any way of life is the use of money to buy seafood. It is effectively to deny to the family served the intrinsic worth of a service that is integral to their way of life.[24]
[41] It is appropriate to value this service by reference, as a starting point, to a price per hour of time spent performing it. It is an activity requiring special skill,[25] including the skilful use of spears and harpoons, which mostly results in a good catch. Drawing on the hourly rate of a qualified carpenter employed by the local Council, currently $23.40 and increasing to $24.10 next year, a reasonable allowance would be $25.00 per hour. However, as discussed earlier the hypothetical cost of a replacement service is only a starting point and care needs to be taken that its use does not give rise to a disproportionate outcome.
[42] In that context it would be unrealistic to attribute the entire time spent fishing as essential solely to the provision of food to dependents. Some component of that time was in some cases attributable to catching seafood distributed to persons who were not dependents. Also, some time was inevitably attributable to the inherent personal value it held to the deceased participant, who would also consume some of the catch. The aim of the exercise is to attribute a pecuniary value to a service, namely the provision of seafood to dependents in the context of the family's way of life. That ought not be confused with attributing a pecuniary value to the way of life lived by the deceased or with provision of seafood to additional persons who were not dependents.
[43] There will be some discounting of the compensable time to allow for those considerations and thus ensure the price per hour approach does not give rise to a disproportionate outcome.
[44] As to whether the loss of the deceased as a hunter-gatherer extends beyond the loss of the provision of food, the plaintiff submits that part of the loss also involves the loss of parental education. In particular, it is submitted the loss includes the value of a deceased imparting traditional local knowledge and skill needed to fish to a deceased's children when they would accompany a deceased fishing. This submission finds support in the authorities,[26] however, it is irrelevant given that ultimately none of the evidence in the five cases identified any delineation between general time spent caring for children by the deceased and time spent specifically educating them in traditional fishing and hunting.
[45] There are two potential methods of assessing the relatives' share of the financial benefit the deceased would have brought to the family.
[46] One is an averages approach. That approach might involve the use of basic rules of thumb as explained in Luntz on Damages:
"Thus for a period of dependency where there are no children, one-third of the deceased's income is deducted, on the conventional assumption that one-third of the income is spent for the benefit of each of the partners personally and one-third for their joint benefit. During a period when there are children, the deduction for the deceased's own expenditure is reduced to 25%. ... [In the case of two income families the] two incomes are added together, the conventional dependency figure is then applied (66% if there are no children, 75% if there are) and then the survivor's income is deducted."[27]
A variant of the averages approach is the use of average dependency percentages derived from household expenditure surveys, as explained in table 9.1 in Luntz on Damages.
[47] The other method is the factual approach of calculating the apportionment of income that as a matter of fact occurred. That method is said by Luntz to be fraught with contingencies and the subject of often unreliable, evidence so the averages approach is preferred, at least as a starting point.[28]
[48] The defendant submits the factual approach is particularly inappropriate here because of the dearth of specific evidence of expenditure and because the witnesses exhibited difficulty in the witness box providing factual detail of the kind supplied in their filed statements, which served as evidence in chief pursuant to directions.[29] The plaintiffs acknowledge the absence of records of expenditure and the absence anyway of any particular complexity in the financial lives of each of the deceased. They urge the adoption of table 9.1 in Luntz on Damages.[30]
[49] That table of dependency percentages, prepared by reference to household expenditure surveys, is essentially a refined version of the averages approach. The defendant submits the use of the table is probably inappropriate, because the broad categories of expenditure considered in the survey are not all apt for families in the Injinoo and Bamaga communities.[31] The same might be said however of many families in many places. It was in the nature of the exercise that gave rise to table 9.1 that it necessarily involved averaging out diverse results. It is nonetheless a useful guide. Obviously significant or unusual individual circumstances would warrant some adjustment of the figures arrived at by whichever averages approach is adopted.
[50] In the circumstances, I intend to take the averages approach by reference to table 9.1 and where appropriate adjust the figures arrived at to allow for the individual circumstances of each case.
[51] There will be three main categories of services assessed in the claims. The first, domestic assistance, includes internal and external housework. The second, child care, relates to time spent taking care of the children of the relevant household. The third, fishing and hunting, relates generally to the provision of seafood.
[52] The plaintiff's proposed approach to assessing the dependents' shares of each of these varied. This aspect was not discretely identified by the defendant, which chose not advance its own proposed quantum calculations or submit any detailed assessment urged by it in respect of any of the cases.[32]
[53] In respect of the latter two categories, child care and fishing and hunting, the plaintiff submits the total value of the services ought be divided equally as between each dependent. This is fair on the face of it in respect of child care. As to fishing and hunting it may on one view slightly disadvantage the spouse in later years when the spouse is the only dependent because tasks such as preparing to take the vessel onto the water and time taken in travelling to fishing spots are unlikely to vary in a proportionate way depending on the number of people to be supplied. It follows there can be no disadvantage to the defendant in adopting the proportionate approach pragmatically advanced by the plaintiff.
[54] As to the former category, domestic assistance, the plaintiff characterises it as a service to the dependent spouse only, so that no part of the amount is apportioned to child dependents. On one view the dependent spouse was not the sole beneficiary of this service and all dependent members of the household suffered damage as a result of the loss of the service. However, responsibility for running households, which includes ensuring housework is tended to, does not rest with dependent children. The cases reveal a varied approach to this issue.[33] In the present five cases the position of counsel for the plaintiffs must be assumed to have been advanced with the interests of all dependants in mind. I accept it is appropriate, as the plaintiff urges, to compensate the surviving spouse only in respect of this category.
[55] However, the taking of that approach may confer additional advantage to the surviving spouse in the years after the children are no longer dependents. For example, if domestic assistance took 12 hours a week in a household of five children it may be that, depending on the nature of the assistance, 12 hours a week would no longer be required once the children are no longer dependent. That is not to say the hours required would reduce proportionately. For example, the time taken to wash clothes may reduce but a lawn will take the same time to mow regardless of how many children remain dependent. I will, though, where the assistance provided makes it appropriate to do so, allow for a reduction in hours needed in assessing the value of the service in the era when children are no longer dependents.
[56] Connected with this is the reality that as children grow older they become more able to contribute to housework, even though still dependents. That consideration means that I will take into account that there would have been some easing of the hours of service even before the children ceased dependency in determining the extent of the abovementioned reduction.
[57] In the case of dependent children, in each of the five claims the plaintiff has not contended that the period of dependency should extend beyond 18 years of age. I will cease calculation of dependency for children by reference to their 18th birthday.
[58] The period of dependency in respect of the relevant spouse will be premised on the relationship having been a lasting one but for the death. The prospect that the relationship might at some stage in the future have broken up will be catered for in discounting for the ordinary vicissitudes of life.
[59] At trial, the defendant repeatedly explored the prospect of spousal dependency ceasing by reason of the spouse entering into a new relationship.
[60] The current general principle is that the mere hypothetical prospect of re-marriage or future entry into a de facto marriage is no more or less a part of the general vicissitudes of life than the prospect of divorce or separation and no allowance for it, either additional to or separate from that otherwise made for general contingencies, ought be made.[34]
[61] Where the prospect is more than hypothetical, and supported by evidence of entry into a new marriage or de facto marriage or of a concrete intention to do so, such evidence without more would not warrant a variation in approach. Such evidence would also need to include evidence of the probable financial consequences of the relationship and show that those financial consequences will be financially beneficial to the claimant for it to be taken into account. Even then, it ought not be assumed those financial consequences will inevitably continue.[35]
[62] Despite the time invested by the defendant in exploring this issue in evidence the upshot is that there was no evidence in any of the cases of a concrete mutual intention to enter into and maintain a permanent new spousal relationship, let alone evidence of any substance as to the probable financial consequences thereof.
[63] The defendant acknowledges the general allowance for contingencies or the vicissitudes of life is typically 15 per cent.[36]
[64] However, the defendant submits the circumstances of the indigenous communities of the deceased and plaintiffs are not typical, pointing in particular to lower than average lifespans and higher than average incidence of poor health among indigenous persons.[37] They submit "an unusually high general discount should be applied for contingencies before proceeding to deal with the especially notable features of the individual claims".[38]
[65] The plaintiff initially contended that no regard ought be had to below average longevity or above average incidence of health problems of indigenous persons, the implication being that regard should only be had to the averages for Australians generally. Indigenous persons form part of the broader overall population base from which general statistics about health and longevity are drawn. It obviously follows those statistics ought not be disregarded merely because a case involves indigenous persons. The plaintiff submitted, and I accept, that the apparently lesser longevity of indigenous persons should only impact upon the contingency discount to the extent of a couple of per cent.[39] If there is specific evidence relating to the poor health or life expectancy of someone in a particular case that is obviously a feature that can properly warrant a discount of greater substance. However, in the absence of such evidence it would not be reasonable to discount to a significant extent, that is, beyond the couple of per cent conceded by the plaintiff, to allow for the generally lower life expectancies and higher incidence of health problems of indigenous persons.
[66] I will discount generally for the vicissitudes of life, in some instances beyond 15 per cent, particularly when making assessments of future loss. The higher discounting adopted for future loss will reflect the higher variability inherent in forecasting well into the future and subsume the aforementioned modest discount conceded by the plaintiff in respect of the health and longevity of indigenous persons.
[67] Any discounting or reductions for especially notable features will be identified separately from general discounting for the vicissitudes of life with a view to avoiding unintended double discounting.
[68] The plaintiffs submit, assuming the award exceeds the cap, that the apportionment to be directed pursuant to s 35(9) ought reflect each dependent's proportionate share of what the total award would be but for the cap. Save for the issue of funeral expenses the submission is uncontroversial. It is prima facie the fairest method and it is not suggested there is evidence in this case warranting a departure from it.
[69] The amount awarded for funeral costs is intended to reimburse an actual expense incurred in direct connection with death. It is of a different character than the balance of the award. Full reimbursement of that expense ought be assured. In the event the total award exceeds $500,000 I will award the full funeral cost and apportion the balance of the $500,000 as discussed above.
[70] Much of the information needed for the assessment process came from the plaintiffs' witnesses, including the content of their witness statements provided pursuant to a pre-trial direction and exhibited largely in lieu of evidence in chief. The defendant submitted generally that the information advanced through the plaintiffs' witness statements was unreliable "because most of the witnesses were unable or unprepared to respond to important questions asked in cross-examination".[40]
[71] I reject that submission. I detected no such general trend of witness inability or unwillingness to answer questions. There were times when the indigenous witnesses of the plaintiff appeared to be slow in answering questions or seemed confused by the wording of questions. These are traits well known by the court as common to many indigenous witnesses from remote communities. Eliciting information from such witnesses is difficult enough for the purposes of taking a written statement. However, in a courtroom it requires particular patience and the use of questioning genuinely rather than superficially calculated at actually obtaining information. The cross-examination in the case was entirely courteous and proper, but, as might be expected of cross-examination, it was not of a nature likely to have obtained significant amounts of detailed information from such witnesses.
[72] The examination and cross-examination of the witnesses in court did not, in the general sense asserted by the defendant, indicate the information provided in the witness statements ought be regarded as unreliable.
[73] The plaintiff claims fund management fees as charged from time to time by the Public Trustee of Queensland according to the Public Trustee Act 1978 (Qld) and regulations on all claims in respect of minors.[41]
[74] The defendant submits the plaintiff has not pleaded or particularised any claim for fund management fees in respect of any of the children of the deceased persons.
[75] The calculation of any management fees that might be awarded turns upon the quantum of the awards I will make. It was common ground between the parties that the potentially complicated calculation of management fees would be best left for further submissions failing agreement on the topic between the parties once my reasons are known. However, it also appeared to be common ground that in the event an award exceeds $500,000 and the award is thus capped at $500,000, the issue is academic.
[76] As will be seen the awards in four of the five cases will reach the capped amount. Further, in the one claim falling short of that mark the relevant dependent has already come of age and will not need fund management. There is therefore no need to reserve this issue for further consideration after delivery of my reasons.
[77] The defendant submits that because superannuation contributions are not available until retirement, the prospect of the spouses of the deceased enjoying that financial benefit was remote and so speculative as to warrant heavy discounting if allowed at all.
[78] The plaintiff acknowledged one way to make allowance for superannuation was to take it into account as a generally positive contingency, rather than assess it specifically. The alternative of a purported specific assessment would be so qualified by variables that would be unlikely to deliver precision.
[79] In the circumstances, in determining the appropriate discounting in respect of the future loss of income of surviving spouses I will simply have general regard to superannuation as a positive contingency.
[80] The defendant submits the financial cap on liability in s 31 of the Commonwealth Act is inclusive of interest and legal fees. The liability to which s 31 refers, as is apparent from s 28 and s 35, is the liability for damage sustained by reason of the death.
[81] On the ordinary meaning of that language costs do not fall within the capped amount, because they are not part of the value of the damage sustained. Rather, they represent the separate financial consequence of the plaintiffs having to institute proceedings to recover that which the defendant is obliged by law to pay.
[83] As to whether interest falls within or without the capped amount, the view that interest is not included in the capped amount was adopted in South Australia in Saunders v Ansett Industries.[44] The liability to which the cap applies is the damage sustained by reason of the death. Interest is arguably not part of the value of that damage because the damage sustained is the pecuniary value of the loss of expected benefit at the time of death, not the time of judgment.
[84] The value of the loss at the time of death obviously did not include interest. The purpose in awarding interest is to ensure adequate compensation for the plaintiffs having been deprived of the pecuniary value of their loss during the lapse in time between the loss and the judgment. Put differently, it is to ensure a plaintiff is not financially disadvantaged in the quantum of its award by delays in a defendant honouring or being forced to honour its lawful obligation.
[85] However, delays are not always the fault of a defendant. Delay in litigation can sometimes be the result of the unrealistic expectations of a plaintiff or other variables over which a carrier has little control. It would be a curious outcome if a provision intended to cap carriers' financial liability left carriers liable to pay more than the cap by reason of the vagaries affecting the speed of disposition of cases in the jurisdiction where the action proceeds.
[86] The better view is that the amount of the cap on liability is inclusive of any interest. That was the preferred view in Swiss Bank Corp v Brink's MAT Ltd.[45] That matter was followed in SS Pharmaceutical Co Ltd & Anor v Qantas Airways Ltd,[46] which the plaintiff accepts is the most persuasive authority on the point.[47]
[87] The correct interpretation then is that s 31's limitation on financial liability is inclusive of interest.
[88] Workcover has made substantial payments to persons in consequence of the deaths with which the present claims are concerned.[48] Not all of those persons are dependents entitled to damages in the present claims.
[89] Section 207B of the Workers' Compensation and Rehabilitation Act 2003 (Qld) in effect provides an amount paid by Workcover as compensation to a person is a first charge on any amount of damages recovered by the person to the extent of the amount paid and the entity from whom damages are recoverable must pay Workcover the damages to the extent of the amount of the first charge.
[90] The plaintiff submits this provision raises the risk that the defendant's insurer might pay all damages to Workcover notwithstanding that there will not be a complete coincidence in identity of the dependents who are awarded damages in the claims and the persons who received compensation from Workcover. The plaintiff therefore seeks a stay of the judgment once pronounced, with a view to advancing argument before me about the distribution of the damages payments.
[91] The plaintiff's submission is premised on the defendant erroneously paying money to Workcover in an amount greater than that component of the compensation that was paid by Workcover to the successful dependents in these claims. There is no reason at this stage to assume the defendant will make such an error. Indeed, it is contrary to its financial interests to do so. It cannot wash its hands of its obligation to pay damages by making erroneous payments to Workcover.
[92] In the circumstances I will not delay or stay judgment to accommodate argument on an issue that is presently academic.
[93] Each of the claims now falls for consideration in the light of the foregoing overview.
EMILY KEPA, FOR AND ON BEHALF OF THE ESTATE AND DEPENDENTS OF FRANK BILLY (191 OF 2007)
Deceased: Frank Lawrence William Billy, born 23 March 1984
His de facto wife: Emily Kepa, born 15 February 1976 (now 36)
His children: Sebastian Billy, born 8 October 2001 (18 in 2019)
Xavier Joseph Billy, born 10 February 2003 (18 in 2021)
Kurtrinah Kepa-Billy, born 30 December 2003 (18 in 2021)
[95] The plaintiff asserts that in addition to the above persons, Gordon and Gloria Solomon also come within the Commonwealth Act's definition of family members. No sufficient evidence has been advanced that they do.
[96] The relevant evidence was given in the statement of Emily Kepa:
"Frank was a member of a large extended indigenous family. His natural father was Lionel Solomon and his natural mother was Bessie Billy. I am not entirely certain of the identity of his adoptive father and mother, but I think it was either Gordon and Gloria Solomon or the mother, Marjorie Solomon."[49]
[97] That evidence is ambiguous as to whether Gordon and Gloria Solomon were in fact the persons who traditionally adopted Frank Billy but as already explained traditional adoption will not make a person a family member within the meaning of the Commonwealth Act. There is no evidence that Gordon or Gloria Solomon come within any of the relationships within the Act's definition of family member. They are not potential beneficiaries of an award under the Act.
[98] Before Frank Billy's death he, his de facto wife Emily Kepa and their three children lived at 41 Ware Street, Injinoo.
[99] Frank Billy and Emily Kepa had been in a permanent relationship since 2000.
[100] At the time of Frank Billy's death, Emily Kepa was occupied caring for their children and not in paid employment.[50]
[101] The defendant emphasised that since the crash Emily Kepa has had two children to other men, one of whom visits her from time to time and provides some assistance around the home. The evidence fell well short of there being any concrete intention to enter into a permanent de facto relationship and of any material financial beneficial consequences. Such limited evidence of assistance by her male visitor as was given was not materially relevant to quantifying the value of her loss.
[102] Ms Kepa's statement only referred to one of the two children she had had since the crash. However, the one she did not mention was traditionally adopted out. This is an obvious explanation why her statement did not mention the child. I detected no lack of candour in Ms Kepa. She appeared to be a credible witness.
[103] At the time of his death, Frank Billy was employed as an apprentice carpenter by the Injinoo Community Council. The apprenticeship was funded by the Commonwealth Development Employment Project Scheme ("CDEP"). He commenced the apprenticeship on 31 March 2003 and was due to complete it on 29 March 2007.[51]
[104] Forecasting his likely income until the point he was due to complete his apprenticeship on 29 March 2007 is relatively straightforward. However, the parties are poles apart as to what was likely to then follow.
[105] The defendant submits Frank Billy would not have completed his apprenticeship and that even if he did there is scant evidence of his prospects of consistent employment as a carpenter. It submits that the most appropriate guide to his likely future income is the median total personal weekly income figure published in the Australian Bureau of Statistics Census Profile for Injinoo.
[106] The plaintiff submits Frank Billy would have completed his apprenticeship and progressed at the very least to employment as an employed carpenter. While there was evidence led of the potentially higher income he could earn as a subcontract carpenter or a carpenter in the mining industry that was not pressed as a basis for assessment. That moderation in approach is appropriate in light of Emily Kepa's evidence. She said Frank Billy enjoyed construction work and was looking forward to being a carpenter in the community and Torres Strait region. However while she said he might even have pursued work in big construction projects a little further afield he was unlikely to move away from his local community for lengthy periods.
[107] It ought be appreciated that in not pressing for an assessment of Frank Billy's future income by reference to the income he could potentially earn as a subcontract carpenter or carpenter in the mining industry the plaintiff was not conceding such a possibility was completely unlikely. Not all contingencies are adverse. The favourable contingency that Frank Billy might potentially have earned more than an employed carpenter is not fanciful.[52] It remains of background relevance in identifying what discounting for contingencies ought occur in the imprecise exercise of forecasting likely income.
[108] Even though the plaintiff's submission only relies upon income levels of employed carpenters it nonetheless gives rise to a significantly higher forecast income than the defendant's submission. For instance, in the 2006 Census Profile the relevant median total personal weekly income figure was $222 per week and in the 2011 Census Profile it had increased to $313 per week.[53] In comparison, Frank Billy's after tax weekly income if still an apprentice carpenter in 2006 would likely have been about $431 and if an employed carpenter presently would likely have been about $920.[54] Thus, Frank Billy would have earned about twice the local median personal weekly income as an apprentice and about three times that figure as an employed carpenter.
[109] The defendant's submission appears to be particularly parsimonious when it is realised the income level for which the defendant submits - the local median personal weekly income - is less than the income Frank Billy was on when he was killed by the crash of the defendant's plane.
[110] In support of its submission the defendant referred to the records of Tropical North Queensland Institute of TAFE, which was the registered training organisation for Frank Billy's apprenticeship.[55] The defendant emphasised that despite the apprenticeship having been underway for about two years at the time of the crash it appears from the TAFE records produced at trial that Frank Billy was yet to complete any of the 38 requisite TAFE units or subjects[56] and he had a poor attendance record at Cairns TAFE.[57]
[111] There was not much other evidence giving any insight into the probability of Frank Billy completing the apprenticeship. There was, for instance, no evidence from his work supervisor as to his work performance. Nor was there any evidence of a material past work history. The question of whether Frank Billy had worked prior to commencing the apprenticeship was raised briefly with Emily Kepa in cross-examination but she gave inconsistent answers in a manner suggesting she did not understand the question.[58] It appears from the Injinoo Community Council records that Frank Billy had been in employment with Council in 2002, prior to the commencement of his apprenticeship.[59] That evidence gives no material insight into the nature of Frank Billy's work history preceding the apprenticeship.
[112] The defence submits in effect that in the absence of some other information about Frank Billy's work ethic and ability the TAFE records ought prompt the conclusion Frank Billy would not have completed his apprenticeship.
[113] While information about Frank Billy's past history of application in work might have assisted, its absence does not warrant an adverse inference. Frank Billy was only 21 when he was killed and it was certainly not suggested to Emily Kepa that during his short adulthood he had exhibited any lack of industry.
[114] As to the TAFE records, they might not be complete. The records show Frank Billy likely travelled to Thursday Island for carpentry training to occur there on 12 to 16 January 2004 but there were no records produced about the training or course then conducted at Thursday Island.[60] It was ascertained in cross-examination of Ms Kinbacher, who produced the TAFE records, that there is a TAFE on Thursday Island and that while the TAFE records produced should have included records about Frank Billy from the Thursday Island TAFE, such records may have been destroyed because more than 7 years has lapsed.[61]
[115] Despite the TAFE records potentially being incomplete it is unlikely they are completely misleading as to Frank Billy's lack of progress in completing the requisite units. But the fact remains that Frank Billy was still actively engaged in the course. Evidence was given that earlier listed course subjects tend to be easier and take less time than the later listed subjects[62] and that it is possible to catch up on units in later blocks of attendance.[63] Therefore, a lack of completion of subjects at an early stage was not necessarily a critical problem. The only evidence from TAFE as to what the tolerable or expected rate of completion was supposed to be was that extensions could be given at the end of the course in the event some or all of the units were not yet completed.[64]
[116] Further, there was no challenge in cross-examination of Emily Kepa to her evidence that it was anticipated Frank Billy would have completed his apprenticeship in March 2007, that is, within the usual time. Admittedly, this would have been more helpful evidence had there been some greater detail to it. But Emily Kepa's relationship with the deceased meant she was well placed to make this assertion of fact.
[117] Notwithstanding the unchallenged evidence of Emily Kepa on this issue it is reasonable nonetheless to also accord weight to the TAFE records as an indicator that Frank Billy may have taken more than four years to complete his apprenticeship. At the very least, some graduated discounting of Frank Billy's forecast income is called for to allow for the contingency that Frank Billy may have taken more than four years to complete his apprenticeship.
[118] While the significance of Emily Kepa's unchallenged evidence has been tempered by the TAFE records it does not follow persuasive weight should not be afforded to her unchallenged evidence that it was anticipated Frank Billy would actually complete his apprenticeship. To the contrary it falls to be considered with other evidence suggesting Frank Billy was motivated to and would receive support to help him complete his apprenticeship.
[119] Ms Kinbacher confirmed there was funding to support students with challenging circumstances.[65] Frank Billy remained employed as an apprentice. The TAFE records demonstrate he remained enrolled. Notably they confirm that when Frank Billy was killed he was actually on board the flight for the purpose of flying to Cairns to attend his TAFE course.[66] That fact provides some poignant further support for the conclusion that Frank Billy was committed to pursuing his qualification.
[120] On the whole of such limited evidence as there is giving insight into this topic I reject the argument that Frank Billy's income should be assessed as if he would not have completed his apprenticeship and will proceed on the basis he probably would have completed it. The probability of him completing his apprenticeship involves such uncertainty that his likely income obviously ought not be assessed as if it was a near certainty that he would have succeeded. From what starting point should that degree of probability be reflected? For instance, should the starting point be the mean weekly income then adjusted upwards or the income of a qualified carpenter then adjusted downwards?
[121] The use of the mean weekly income in the region as a starting point is inconsistent with the reality that Frank Billy was already earning more as an apprentice than someone on the mean weekly income at the time of his death. In the circumstances of this case it is preferable to have regard to his forecast income as an apprentice and then employed carpenter and discount it to reasonably reflect the degree of uncertainty associated with him finishing his apprenticeship and becoming an employed carpenter.
[122] The discount should also be sufficiently significant to cater for the contingency that after completing his apprenticeship he may not have secured and maintained secure employment. There was little evidence giving helpful insight into the probability of him securing and maintaining employment as an employed carpenter in his region. There is higher than average unemployment in the area and much employment is under the CDEP, which does not enjoy high success in moving its participants into employment beyond the scheme.[67]
[123] A discount of 35 per cent would adequately reflect the degree of uncertainty associated with the probability of Frank Billy completing his apprenticeship and securing and maintaining work as an employed carpenter. While the level of uncertainty might arguably warrant an even higher discount it ought be borne in mind a materially greater discount would result in a forecast income close to the level he was on as an apprentice when he died. Furthermore, the discount of 35 per cent will apply to Frank Billy's forecast potential income only as an employed carpenter and not the potentially higher income that Frank Billy might have earned if he secured work as a subcontract carpenter or a carpenter in the mining industry. As earlier mentioned the contingency that he might have achieved more remunerative employment than that of an employed carpenter cannot be ignored.
[124] Mark Thompson, a forensic accountant, provided summaries in respect of Frank Billy's likely income as an apprentice and then employed carpenter in Sch A to his report.[68] The foundations[69] and calculations for the figures there identified appear to be correct. They are used in the below forecast of Frank Billy's likely income.
[125] The likely after-tax income of Frank Billy between the date of the Lockhart River air crash and the present, had he not died, was as follows:
[126] Applying the figures in table 9.1 in Luntz on Damages the total dependency for three children, where the income of the spouse was zero, is 79 per cent. The table suggests that 28.9 per cent of the total should be attributed to Emily Kepa and 16.7 per cent should be attributed to each child. This yields the sum of $57,652.82 to Emily Kepa and $33,314.95 to each child.
[127] There should be some general allowance for the vicissitudes of life by the discounting of those figures. A discount of 15 per cent, which is commonly adopted in personal injuries cases in Queensland,[70] is appropriate. This makes the loss of past benefit to Emily Kepa $49,004.90 and the loss to each of the children $28,317.71.
[128] For reasons already explained, Frank Billy's future income ought be assessed by reference to his likely earnings if he were to work as an employed carpenter, discounted by 35 per cent.
[129] Continuing the above discussed use of Sch A of Mr Thompson's report, Frank Billy's weekly after-tax income if working as an employed carpenter would likely have been $919.23 in 2012 and $920.19 in 2013. On the available materials the figure would largely have plateaued from then onwards. In the circumstances in assessing future income I will simply adopt a weekly after-tax income figure of $920.19 discounted by 35 per cent to $598.12.
[130] Allowing $598.12 net a week for a period of seven years (when Sebastian reaches the age of 18) (309 multiplier) yields $184,819.08. For Emily Kepa 28.9 per cent of that sum yields $53,412.71. For each of the children 16.7 per cent of that sum yields $30,864.79 each for that period.
[131] For about one year thereafter, the relevant family members will comprise Emily Kepa and the two children, Xavier and Kurtrinah. Allowing $598.12 a week for one year in about eight years time (37 multiplier) yields $22,130.44. Emily Kepa's entitlement is 34.4 per cent thereof or $7,612.87 and the children's percentage is 20.8 per cent or $4,603.13 each.
[132] For about one year thereafter, the relevant family members will comprise Emily Kepa and Kurtrinah. Allowing $598.12 a week for one year in about nine years time (34 multiplier) yields $20,336.08. Emily Kepa's entitlement is 43.8 per cent thereof or $8,907.20 and Kurtrinah's percentage is 28.1 per cent or $5,714.44.
[133] Had Frank Billy survived he would currently be 28 years of age. The plaintiff submitted he could have expected to work for a further 39 years, until aged 67. The defendant submitted that is unrealistic, emphasising indigenous life expectancy for indigenous men is 68 compared to 78 for non-indigenous persons.[71] The defendant subsequently submitted the lower than average life expectancies of the region, and thus the heightened prospect of early death prior to ordinary retirement age, warranted a higher than average discount for the vicissitudes of life.[72] Such modest discounting, as is, for reasons explained at [65] above, warranted by that aspect will be subsumed in the discount for vicissitudes addressed below. The defendant initially also submitted it was apparent from the 2006 Census Profile that males tended to drift out of employment after their mid-40s. However, it properly later disclosed the 2011 Census Profile and acknowledged it shows there is no longer a significant drop of males in work once they reach the 55-64 age bracket.[73] In all of the circumstances I will assume Frank Billy would have worked for another 37 years, to age 65.
[134] Allowing $598.12 a week for a period of 37 years in 10 years time (481 multiplier) yields $287,695.72. Applying a dependency to the extent of 65.6 per cent of that sum allows Emily Kepa $188,728.39.
[135] The plaintiff acknowledges, and I find, a further discount of the sum should be allowed for the prospect, acknowledged by Emily Kepa,[74] that as the children grew older she might have returned to work and thereby have been less reliant on Frank Billy's income. Allowing for that prospect by a discount of 20 per cent is reasonable. That reduces the amount allowed to Emily Kepa to $150,982.71.
[136] The plaintiff submits an overall discount of 15 per cent on each of the claims for future economic loss should be applied to allow for the vicissitudes of life. The defendant contends the discount should be more substantial, particularly emphasising the lower than average life expectancies and higher than average impact of chronic diseases experienced by indigenous persons. As already discussed I will not vary any discount by more than a couple of per cent to allow for that consideration in the absence of more specific evidence. I do not regard the fact that Emily Kepa was eight years senior to Frank Billy as being evidence of a character warranting a particularly high discount. Here the more relevant factor is the long future period being assessed. When that feature is considered in conjunction with the couple of per cent discount mentioned above a discount of 25 per cent is reasonable to make allowance for the vicissitudes of life in respect of the award for Emily Kepa. However in respect of the children, whose compensable period is less, the discount should be 20 per cent.
[137] Applying a discount of 25 per cent for Emily Kepa and 20 per cent for the children gives rise to total awards for future economic loss as follows:
[139] He would assist with the care of the children at home and often take them to the beach for a couple of hours at a time on Sundays. Emily Kepa estimates he would take care of the children for about ten hours per week.[77] Emily Kepa gave evidence that Frank Billy would provide educational guidance to the children that in a cultural context included how to hunt for fish, turtle, dugong and seafood.[78] There was no evidence given as to how long any of the educational guidance would take so I will infer it occurred during those hours when Frank Billy was in any event caring for the children.
[140] Frank Billy would assist his natural mother by mowing her lawn and taking her shopping about once a month for two hours,[79] that is, an average of half an hour per week.
[141] He would go fishing for all of one day, sometimes going out on a second day, about every second weekend. Sometimes he would go out at fishing at night.[80] Emily Kepa estimates the hours he spent fishing averaged eight hours per week.[81] It appears that in addition to Frank Billy's household, Bessie Billy would also receive some of the catch.[82]
[142] The hours of domestic care and assistance to Emily Kepa should be assessed at eight hours per week. Allowing eight hours a week at $20 per hour for a period of 387 weeks to the present yields $61,920.
[143] In respect of the children, there should be an allowance of 10 hours per week at $20 per hour for 387 weeks in the sum of $77,400. That yields $25,800 for each of the three children.
[144] As for Bessie Billy, there should be an allowance of half an hour per week at $20 per hour for a period of 387 weeks yielding a sum of $3,870.
[145] In respect of hunting and fishing, the service ought be valued at $25 per hour given the special skill involved. However, allowing for the full time that Frank Billy would be away hunting and fishing would not reflect the evidence that some component of the catch was distributed to persons who are not dependents and thus some component of the time spent was not attributable to servicing the dependents in this claim. To take into account those features, I will discount the time spent by 20 per cent to 6.4 hours per week. This equates to $160 a week, which is by no means a disproportionate outcome in the circumstances.
[146] Allowing 6.4 hours a week at $25 an hour, that is, $160 per week, for a period of 387 weeks yields a sum of $61,920. This should be divided equally between Emily Kepa, the children and Frank Billy's mother, to yield a sum of $12,384 each.
[147] Applying the above discussed discount of 15 per cent for vicissitudes of life gives rise to total awards for past loss of the benefit of services as follows:
[148] The determination of the award for future loss of services should be generally consistent with the above approach although consistently with the approach to future loss of income I will apply a discount of 25 per cent for the vicissitudes of life in respect of the awards for Emily Kepa and Bessie Billy and 20 per cent in respect of the children.
[149] The plaintiff submits the house and maintenance services are likely to have continued until Frank Billy reached the age of 70 in about 42 years. While such services can be performed until such an age, assuming good health, it may reasonably be inferred there would be a tapering off in the time spent on such tasks in the latter years. I will therefore adopt 65 years of age as a cut-off point, that is, a further 37 years.
[150] Allowing eight hours a week at $20 per hour ($160 each week) for a period of 37 years (894 multiplier) yields the sum of $143,040.
[151] The dependent children will progressively come of age during the first nine of those 37 years. The duration of some, but not all, of the tasks the deceased would have performed had he lived would have eased as the children grew older and in turn ceased dependency.[83]
[152] Allowing for that consideration, the aforementioned sum of $143,040 should be reduced by 15 per cent to $121,584.
[153] The plaintiff submits Emily Kepa's share of the fishing would also have continued to be provided for 42 years but for the reason given above I will allow a further 37 years to age 65. Allowing $32 a week (1/5 of the above identified $160 per week) for a period of 37 years (894 multiplier) yields a sum of $28,608.
[154] This gives rise to a total future loss of benefit of services allowance for Emily Kepa of $150,192. That should be reduced by 25 per cent for contingencies giving rise to the sum of $112,644.
[155] The plaintiff submits for an allowance in respect of fishing for Bessie Billy during a period of 20 years. While Bessie Billy's year of birth was opened as 1958,[84] the evidence merely established she is presently in her fifties. In the circumstances I will allow a further 15 years. Allowing $32 a week for a period of 15 years (555 multiplier) yields a sum of $17,760. Applying a 25 per cent discount for contingencies yields $13,320.
[156] As to the children, they would share 10 hours per week at $20 per hour. That is $66.67 each per week. They would also receive a share of the fishing at $32 per week, giving rise to a total of $98.67 per week by way of ongoing service.
[157] Allowing $98.67 a week for Sebastian for a period of seven years (309 multiplier) yields $30,489.03. Applying a 20 per cent discount for contingencies yields $24,391.22.
[158] Allowing $98.67 a week for Xavier for a period of eight year's (346 multiplier) yields $34,139.82. Applying a 20 per cent discount for contingencies yields $27,311.86.
[159] Finally, allowing $98.67 a week for nine years (380 multiplier) for Kurtrinah yields $37,494.60. Applying a 20 per cent discount for contingencies yields $29,995.68.
[160] Section 35(7) of the Commonwealth Act provides the damages recoverable include the reasonable expenses of the funeral of the deceased.
[161] An award of $5,065.50 for funeral expenses paid by Workcover is sought.[85] There is no issue taken by the defendant in respect of the reasonableness of that amount.
[162] Emily Kepa deposed to there likely being a tombstone opening for Frank Billy's gravesite in the future but no evidence was given regarding the associated cost. The plaintiff did not submit for an award in respect of it.
[163] There should be an award of $5,065.50 for funeral expenses.
[164] There is no need to consider management fees because the award total exceeds $500,000.
[166] That amount is fair and reasonable but it exceeds the $500,000 limit, so there will be judgment for the plaintiff against the defendant in the sum of $500,000.
[167] Deducting the funeral costs leaves a remaining award of $494,934.50.
[168] Subject to the deduction from that balance of any costs not recovered from the defendant, the balance shall be divided proportionately among the remaining dependents.
[169] The proportionate entitlements are calculated as follows:
$772,728.50 - $5,065.50 (funeral expenses) = $767,663 for percentage apportionment
Sebastian: 100/767,663 x 109,857.16 = 14.31 per cent
Kurtrinah: 100/767,663 x 123,715.68 = 16.12 per cent
1. Judgment for the plaintiff (Emily Kepa, for and on behalf of the estate and dependents of Frank Billy, deceased) against the defendant in the sum of $500,000.
2. I direct pursuant to s 35(9) of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) that:
(a) $5,065.50 of the judgment sum is payable for funeral expenses;
(b) the balance of the judgment sum, after deduction from it of any costs not recovered from the defendant, shall be divided amongst the following persons in the following proportions:
FLORENCE KEPA, FOR AND ON BEHALF OF THE ESTATE AND DEPENDENTS OF FRED BOWIE (192 OF 2007)
His de facto wife: Florence Patricia Kepa, born 17 January 1984 (now 28)
His children: Bettina Bowie, born 28 September 2000 (18 in 2018)
Fred Bowie Junior, born 10 November 2005 (18 in 2023)
[172] Fred Bowie Junior had not actually been born at the time of Fred Bowie Senior's death. Florence Kepa was then pregnant with Fred Junior. Section 35(5) of the Commonwealth Act did not expressly address whether or not a passenger's child born after the passenger's death was, for the purposes of s 35(3), a child of the passenger. There is no doubt that Fred Bowie Junior was a child of the deceased but it is less clear whether it can be said Fred Bowie Junior sustained damage within the meaning of s 35(3) by reason of his father's death. In that regard there is no suggestion that his position, once born, was any different than that of his siblings who had lived in the deceased's household. The issue, if there is one, is that assessment of loss occurs by reference to the position at the time of death and at that time Fred Bowie Junior was conceived but not yet born. Can he be said to have sustained damage by reason of his father's death?
[173] The legislation's obvious purpose is to compensate a deceased's family members who, but for the death, would have received financial and other support from the deceased. Fred Bowie Junior, conceived but not yet born at the time of the crash, would inevitably have received such support. Taking a purposive approach[86] to interpreting s 35(3), I conclude he does come within the meaning of the s 35(3) reference to "such of the members of the passenger's family as sustained damage by reason" of the death.
[174] Fred Bowie had another child, Kales Kepa, born 20 February 1999. However, she was traditionally adopted and has lived with her grandmother since she was a few months old. A passing evidentiary reference to Fred Bowie from time to time giving Mary Eseli money for the care of Kales involved no indication of the sums involved.[87] No sufficient evidence has been advanced to establish that Kales Kepa sustained damage by reason of her biological father's death.[88]
[175] The plaintiff asserts that, in addition to the above dependents, Erris and Mary Eseli, the parents by traditional adoption of Fred Bowie, should be treated as dependents. However, for reasons already explained, traditional adoption will not be effective to found membership of the passenger's family pursuant to s 35(5) unless the traditionally adoptive parents are, in any event, related to the deceased by way of the relationships identified in s 35(5). Fred Bowie was the son of Mary Eseli's sister.[89] The relationships of aunt or uncle are not listed in s 35(5). It follows Erris and Mary Eseli are not potential beneficiaries of an award under the Act.
[176] Before Fred Bowie's death he and his de facto wife Florence Kepa lived with their children at 17A MacDonald Road, Injinoo, the residence of Fred Bowie's sister Dulcie Bowie. They had been living there for about six months while the house they ordinarily lived in was being renovated.[90]
[177] Fred Bowie and Florence Kepa had been in a permanent relationship since 2000.
[178] At the time of Fred Bowie's death, Florence Kepa was occupied caring for their children and not in paid employment.[91]
[179] The defendant submitted that evidence of some domestic violence in the relationship suggested the relationship may not have been destined to last. However, such limited evidence as there was on this topic did not suggest the relationship was unlikely to be lasting such as to warrant any variation from conventional discounting for vicissitudes.
[180] The defendant also emphasised Florence Kepa had been in two relationships since the crash. She also bore a child who was traditionally adopted out. It is not entirely clear whether that child was the product of the first of the two relationships or some separate liaison. Florence Kepa was obviously emotionally affected in relation to the first relationship and reluctant to discuss it. I perceived no dishonesty about this on her part. She appeared to be a credible, albeit emotionally vulnerable, witness.
[181] There was some limited evidence of the assistance given to her by her present male friend; however, it was of no material relevance in quantifying the value of her loss. There was no evidence of an intention to enter into a permanent de facto relationship with him and no evidence of any material financial beneficial consequences.
[182] Finally, some evidence was led of Florence Kepa receiving assistance with her children from other adults living at the house she and Fred Bowie had been staying in while their residence was being renovated. Given the temporary nature of those arrangements, that assistance is of no material relevance.
[183] At the time of his death, Fred Bowie was employed as an apprentice carpenter by the Injinoo Community Council. The apprenticeship was funded by the CDEP. He commenced the apprenticeship on 31 March 2003 and was due to complete it on 29 March 2007.[92]
[184] As with Frank Billy, forecasting Fred Bowie's likely income until the point he was due to complete his apprenticeship on 29 March 2007 is relatively straightforward. The divergence between the parties about what was likely to then follow involves, essentially, the same considerations as canvassed above in respect of Frank Billy.
[185] The submissions of the parties on the relevant issues in this context were also largely the same. My consideration of them is adequately canvassed in the analysis relating to Frank Billy.
[186] The evidence of Fred Bowie's TAFE absences was essentially the same as that in respect of Frank Billy. Unlike Frank Billy, Fred Bowie had at least completed one of the subjects required for the apprenticeship.[93]
[187] As with the evidence of Emily Kepa in respect of Frank Billy, Florence Kepa's evidence in respect of Fred Bowie, to the effect it was anticipated Fred Bowie would have finished the apprenticeship about 29 March 2007, was unchallenged.
[188] In all of the circumstances and for the same reasoning as was outlined in respect of Frank Billy, I will approach the assessment of Fred Bowie's likely income by reference to what he would have earned as an apprentice, and then as an employed carpenter. I will allow some graduated discounting of Fred Bowie's forecast income to allow for the contingency that he may have taken more than four years to complete his apprenticeship. Thereafter, a discount of 35 per cent would adequately reflect the degree of uncertainty associated with the probability of Fred Bowie completing his apprenticeship and securing and maintaining work as an employed carpenter.
[189] A forensic accountant, Mark Thompson, provided summaries in respect of Fred Bowie's likely income as an apprentice and then employed carpenter in Sch A to his report.[94] The foundations[95] and calculations for the figures there identified appear to be correct. They are used in the below forecast of Fred Bowie's likely income.
[190] The likely after-tax income of Fred Bowie between the date of the Lockhart River air crash and the present, had he not passed away, was as follows:
[191] Applying the figures in table 9.1 of Luntz on Damages, the total dependency for five children, where the income of the spouse was zero, is 82.8 per cent. The table suggests that 22.3 per cent of the total should be attributed to Florence Kepa and 12.1 per cent should be attributed to each child. This yields the sum of $43,613.24 to Florence Kepa and $23,664.58 to each child.
[192] There should be some general allowance for the vicissitudes of life, by the discounting of those figures. A discount of 15 per cent is again appropriate. This makes the loss of past benefit to Florence Kepa $37,071.25 and the loss to each of the children $20,114.89.
[193] For reasons already explained, Fred Bowie's future income ought be assessed by reference to his likely earnings if he were to work as an employed carpenter, discounted by 35 per cent.
[194] Continuing the above discussed use of Sch A in Mr Thompson's report, Frank Billy's weekly after-tax income, if working as an employed carpenter, would likely have been $919.23 in 2012, and $920.19 in 2013. On the available material, the figure would likely have plateaued from then onwards. In the circumstances, as in the case of Frank Billy, in assessing future income, I will adopt a weekly after-tax income figure of $920.19, discounted for contingencies by 35 per cent to $598.12.
[195] Allowing $598.12 net a week for a period of six years (when Bettina reaches the age of 18) (271 multiplier) yields $162,090.52. For Florence Kepa 22.3 per cent of that sum yields $36,146.19. For each of the children 12.1 per cent of that sum yields $19,612.95 each for that period.
[196] For about one year thereafter, the relevant family members will comprise Florence Kepa, and the children Leon, Renia, Solomon and Fred. Allowing $598.12 net a week for one year in about seven years' time (38 multiplier) yields $22,728.56. Florence Kepa's entitlement is 25.1 per cent thereof or $5,704.87 and the children's percentage is 14 per cent or $3,182.00 each.
[197] For about two years thereafter, the relevant family members will comprise Florence Kepa, and the children Renia, Solomon and Fred. Allowing $598.12 a week for a further two years in about nine years' time (71 multiplier) yields $42,466.52. Florence Kepa's entitlement is 28.9 per cent thereof or $12,272.82 and the children's percentage is 16.7 per cent or $7,091.91 each.
[198] For about one year thereafter, the relevant family members will comprise Florence Kepa, and the children Solomon and Fred. Allowing $598.12 a week for about year in about 10 years' time (33 multiplier) yields $19,737.96. Florence Kepa's entitlement is 34.4 per cent thereof or $6,789.86 and Solomon and Fred's percentages are 20.8 per cent or $4,105.50 each.
[199] For about one year thereafter, the relevant family members will comprise Florence Kepa and Fred. Allowing $598.12 a week for one year in about 11 years' time (31 multiplier) yields $18,541.72. Florence Kepa's entitlement is 43.8 per cent thereof or $8,121.27 and Fred's percentage is 28.1 per cent or $5,210.22.
[200] Had Fred Bowie survived, he would currently be 33 years of age. As with my reasoning in respect of Frank Billy, I will assume Fred Bowie would have worked for another 32 years, to age 65.
[201] Attributing $598.12 a week for a period of 32 years in 12 years' time (395 multiplier) yields $236,257.40. Allowing a dependency to the extent of 65.6 per cent of that sum gives Florence Kepa $154,984.85. The plaintiff acknowledges, and I find, a further discount of the sum should be allowed for the prospect that, as the children grew older, she might have returned to work and thereby have been less reliant on Fred Bowie's income. A discount of 20 per cent makes adequate allowance for that contingency. That reduces the amount allowed to Florence Kepa commencing from 12 years time to $123,987.88.
[202] As with Frank Billy, the plaintiff submits an overall discount of 15 per cent on each of the claims for future economic loss should be applied to allow for the vicissitudes of life, whereas the defendant contends for a more substantial discount. For the reasons already articulated in respect of Fred Bowie, a further discount of 25 per cent is reasonable to make allowance for the vicissitudes of life in respect of Florence Kepa. However, in respect of the children, the discount should be 20 per cent.
[203] Applying a discount of 25 per cent for Florence Kepa and 20 per cent for the children gives rise to total awards for future economic loss as follows:
[204] Florence Kepa estimates Fred Bowie contributed about 15 hours per week in respect of household chores and, implicitly, supervision of the children.[96] However, the more specific estimates provided by her fall somewhat short of that total.
[205] On her evidence, Fred Bowie assisted with cooking and the cleaning of the house for a couple of hours each week. He is said to have mowed the lawn and generally maintained the house for an hour or two each week, but is also said to have mowed the lawn and maintained the cars for a couple of hours each week. Reconciling those overlapping descriptions, I conclude he averaged five hours per week tending to cooking, cleaning, house maintenance, car maintenance and mowing the lawn.
[206] The hours of domestic care and assistance to Florence Kepa should therefore be assessed at five hours per week. Allowing five hours a week at $20 per hour for a period of 387 weeks to the present yields $38,700.
[207] Florence Kepa also gave evidence that Fred Bowie would look after the children for about an hour per day, with an additional couple of hours on the weekend.[97] In the circumstances, I will allow nine hours per week for taking care of the children.
[208] There should therefore be an allowance of nine hours per week at $20 per hour for 387 weeks in the sum of $69,660. Divided by five, this yields $13,932 for each child.
[209] Fred Bowie would hunt for seafood and fish, supplying the household with catches of fish, turtle, dugong, crabs and crayfish that could last for up to a week or longer. He would fish, if not every weekend, every second weekend, sometimes staying out overnight. On some occasions he would fish twice on the same weekend. Florence Kepa's estimate of the amount of time he spent fishing, on average, was eight hours per week.[98]
[210] The plaintiff claims the service ought be valued at $25 per hour, given the special skill involved. As with Frank Billy, I agree that is a reasonable approach. I will discount the time spent hunting and fishing per week to make some allowance for the inevitability that Fred Bowie was himself a beneficiary of some of the time spent. However, I will not discount it to the same extent as with Frank Billy, because his discount also allowed for the fact that some component of the time was attributable to servicing persons beyond his household. There is no evidence in respect of Fred Bowie that some of his catch would be supplied to persons beyond his household. In the circumstances, I will discount the time spent by 10 per cent to 7.2 hours per week. Allowing 7.2 hours a week at $25 per hour, which is $180 per week, for a period of 387 weeks yields a sum of $69,660. This should be divided equally between Florence Kepa and the five children to yield the sum of $11,610 each.
[211] Applying the above discussed discount of 15 per cent for vicissitudes of life gives rise to total awards for past loss of the benefit of services as follows:
[212] The determination of the award for future loss of services should be generally consistent with the above approach. However, consistently with the approach to future loss of income, I will apply a discount of 25 per cent for the vicissitudes of life in respect of the award for Florence Kepa and 20 per cent in respect of the children.
[213] The plaintiff submits the house and maintenance services are likely to have continued until Fred Bowie reached the age of 70 in about 37 years' time. For the same reasons given in respect of Frank Billy, I will adopt 65 years of age as a cut-off point, that is, a further 32 years. Allowing eight hours a week at $20 per hour ($160 each week) for a period of 32 years (845 multiplier) yields the sum of $135,200.
[214] The dependent children will progressively come of age during the first 11 years of those 32 years. The duration of some, but not all, of the tasks the deceased would have performed had he lived would have eased as the children grew older and in turn ceased dependency.[99] Allowing for that consideration, the aforementioned sum of $135,200 should be reduced by 15 per cent to $114,920.
[215] The plaintiff submits Florence Kepa's share of the fishing would also have continued for 38 years, but, as explained above, I will allow a further 32 years. Allowing $30 a week (1/6 of the above identified $180 per week) for a period of 32 years (845 multiplier) yields the sum of $25,350.
[216] This gives rise to a total future loss of benefit of services allowance for Florence Kepa of $140,270. That should be reduced by 25 per cent for contingencies, giving rise to the sum of $105,202.50.
[217] As to the children, they would share nine hours per week at $20 per hour, that is, $36 each per week. They would also receive a share of the fishing at $30 per week (1/6 each of $180), giving rise to a total of $66 per week by way of ongoing service.
[218] Allowing $66 a week for Bettina for a period of six years (271 multiplier) yields $17,886. Applying a 20 per cent discount for contingencies yields $14,308.80.
[219] Allowing $66 a week for Leon for a period of seven years (309 multiplier) yields $20,394. Applying a 20 per cent discount for contingencies yields $16,315.20.
[220] Allowing $66 per week for Renia for a period of nine years (380 multiplier) yields $25,080. Applying a 20 per cent discount for contingencies yields $20,064.
[221] Allowing $66 a week for Solomon for a period of 10 years (413 multiplier) yields $27,258. Applying a 20 per cent discount for contingencies yields $21,806.40.
[222] Allowing $66 a week for Fred for a period of 11 years (444 multiplier) yields $29,304. Applying a 20 per cent discount for contingencies yields $23,443.20.
[223] An award of $5,065.50 for funeral expenses paid by Workcover is sought.[100] There is no issue taken by the defendant in respect of the reasonableness of that amount.
[224] The sum of $5,065.50 should be awarded for funeral expenses.
[225] The plaintiff also seeks the sum of $21,223 for a substantial tombstone ordered and paid for by Mary Eseli. Curiously, this was not incorporated into the plaintiff's further updated statement of loss and damage, although the defendant did not take issue with that omission.
[226] Mary Eseli's statement explained the significance of the tombstone and corresponding tombstone opening in her statement:
"One of our traditional customs relates to the death and burial of deceased persons. When a person dies, a funeral is held and the person is buried at a cemetery. The funeral is not the end of the grieving process. After the funeral, the families of the deceased continue to grieve for a number of years. After the dirt settles on the place where the person was buried, a "tombstone" is built. Traditionally, this may have been a collection of rocks or, after the arrival of Europeans, bottles. Once the tombstone is created, there is a ceremony known as a Tombstone Opening", which is the final farewell to the deceased person. This is usually a community celebration at which we all have a feast."[101]
[227] Ms Eseli explained she has ordered and paid for a tombstone which is now in place, but remains covered pending the opening ceremony later in the year.[102] A photograph taken in the cemetery depicts the tombstone in covered form. It is readily apparent that it is a very significant memorial in size, substantially larger than an ordinary headstone in tablet form. In correspondence annexed to Ms Eseli's statement, the product supplied is referred to as a monument consisting of a headstone, base, ledger, kerbing and plaque.[103]
[228] There were submissions made as to whether a tombstone or headstone memorial comes within the meaning of "the reasonable expenses of the funeral of the passenger" in s 35(7) of the Commonwealth Act. A helpful analysis of the issues appears in Luntz on Damages.[104] It is, however, unnecessary to embark upon an analysis of the issue because it is rendered academic by a more fundamental obstacle.
[229] Section 35(4) of the Commonwealth Act relevantly provides:
"To the extent that the damages recoverable include...funeral...expenses paid...by his personal representative, the liability is enforceable for the benefit of the personal representative of the passenger in his capacity as personal representative."
[230] On the face of it, this provision allows the personal representative to recoup funeral expenses paid for by the personal representative. In some cases there may be evidence that a payment has been made on behalf of the personal representative in which case it will likely be enforceable for the benefit of the personal representative. There is no evidence of that kind in this instance.
[231] In some cases, it may be that a dependent pays for the funeral expenses and it might be reasonably arguable that such expenses can be characterised as damage sustained by reason of the death, pursuant to s 35(3) and thus be recoverable pursuant to s 35(7) which makes plain the damages recoverable includes the reasonable expenses of the funeral of the passenger. However, here the cost has not been incurred by a member of the passenger's family within the meaning of s 35. As already explained, Mary Eseli is not a potential beneficiary of an award under the Act.
[232] In the circumstances, it is unnecessary to determine whether all or some component of the cost of the memorial can be said to come within the meaning of funeral expenses in s 35 because, even if it did, it is not a cost which has been incurred by the estate or a person otherwise entitled to compensation under s 35.
[233] Accordingly, I have no power to make any order compensating all or some of the cost of the tombstone.
[234] There is no need to consider management fees because the award total exceeds $500,000.
[236] That amount is fair and reasonable but it exceeds the $500,000 limit, so there will be a judgment for the plaintiff against the defendant in the sum of $500,000.
[237] Deducting the funeral costs leaves a remaining award of $494,934.50.
[238] Subject to the deduction from that balance of any costs not recovered from the defendant, the balance shall be divided proportionately among the remaining dependents.
[239] The proportionate entitlements are calculated as follows:
$756,327.23 - $5,065.50 (funeral expenses) = $751,261.73
Florence: 100/751,261.73 x 329,804.42 = 43.9 per cent
Bettina: 100/751,261.73 x 71,824.75 = 9.56 per cent
Solomon: 100/751,261.73 x 90,825.88 = 12.09 per cent
1. Judgment for the plaintiff (Florence Kepa, for and on behalf of the estate and dependents of Fred Bowie, deceased) against the defendant in the sum of $500,000.
2. I direct pursuant to s 35(9) of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) that:
(a) $5,065.50 of the judgment sum is payable for funeral expenses;
(b) the balance of the judgment sum, after deduction from it of any costs not recovered from the defendant, shall be divided amongst the following persons in the following proportions:
FRANCIS BOWIE, FOR AND ON BEHALF OF THE ESTATE AND DEPENDENTS OF MARDIE BOWIE (193 OF 2007)
Her de facto husband: Francis Bowie, born 18 August 1973 (now 39)
Her child: Johnny Tamwoy, born 30 July 1992 (turned 18 in 2010)
Her mother: Anni Martha Bero, born 15 August 1957 (now 55)
[242] The plaintiff asserts that in addition to the above persons, Dyle Cook, born 5 November 1995 (18 in 2013) was also a dependent of Francis Bowie and Mardie Bowie. There was no dispute about the evidence of Francis Bowie to that effect, however, Dyle had been traditionally adopted by Francis Bowie and Mardie Bowie and was in fact the biological child of Mardie Bowie's sister, Mary-Ann Cook. For the reasons already explained, Dyle therefore is not deemed to be a member of Mardie Bowie's family for the purposes of s 35(3) of the Commonwealth Act. He is not a potential beneficiary under the Act.
[243] Before Mardie Bowie's death, she and her de facto husband Francis Bowie were living at 62 Lui Street, Bamaga.
[244] Mardie Bowie and Francis Bowie had been in a permanent relationship since the 1990s.[105]
[245] At the time of Mardie Bowie's death, Francis Bowie was employed by the Bamaga Island Council, doing parks and gardens work.[106]
[246] The defendant submitted Francis Bowie is in a new and likely lasting relationship with Estelle Gebadi with the consequence that there should be no allowance for loss of services.[107] I reject that submission.
[247] Firstly, while Francis Bowie and Ms Gebadi are in a relationship, they maintain separate premises, finances and possessions. They are only temporarily cohabiting during a renovation of one of their premises.
[248] More significantly, as the evidence unfolded about their relationship, it became apparent that each held quite different views about the future of their relationship. Francis Bowie wants it to continue. Ms Gebadi's evidence, and her demeanour in giving it, made it plain she wishes to extricate herself from the relationship in a manner which will not cause too much hurt to Francis Bowie who she is concerned is emotionally vulnerable.
[249] A concrete intention to enter into a permanent new relationship, in the sense discussed as potentially relevant in De Sales v Ingrilli, must necessarily be a mutual intention. There is no such mutual intention here. It will be sufficient here for the contingency of a future lasting relationship to be approached as part of the general vicissitudes of life.
[250] At the time of her death, Mardie Bowie was employed as a sports coordinator by the Bamaga Island Council. She was undertaking a traineeship at the council which commenced in about March 2003. She was also undertaking TAFE studies in community recreation. She was due to complete her traineeship and attain the certificate III in communication towards the end of 2007. Had she completed her traineeship she would have become a qualified sports and recreation officer.[108]
[251] Her employer's Workcover report provides an indication of her gross earnings from 2003 to 2005,[109] information which has been used by the forensic accountant, Mark Thompson to provide summaries in respect of her likely income as a trainee sports officer and then a qualified sports and recreation officer in Sch A to his report.[110] The foundations[111] and calculations for the figures there identified appear to be correct. The more difficult issue is whether she would have completed her traineeship, become a qualified sports and recreation officer and secured work in that capacity on a full-time basis.
[252] The defendant emphasises there is only modest and brief evidence as to Mardie Bowie's history of employment before her employment with the council.[112] However, the TAFE records suggest she had progressed through the certificate I and II levels of her qualification, and had completed two of the 26 units required for the certificate III qualification at the time of her death.[113]
[253] The defendant emphasises the absence of material evidence as to what work would have been available in the local area had Mardie Bowie completed her course, and also points to her significant medical difficulties as likely impairing her prospects of carrying out and sustaining employment activities.
[254] Francis Bowie acknowledged in cross-examination Mardie Bowie was admitted to hospital on a number of occasions between 1999 and 2005 because of cellulitis in her legs that would swell up so that she could not walk.[114] He was aware that in the two-year period before her death she suffered from headaches that were getting worse.[115] He recalled that she suffered from being overweight,[116] and that she was hospitalised in both 2004 and 2005 because of problems with her legs in consequence of her being overweight.[117] He agreed that she would engage in a significant binge-drinking session at least once a fortnight, and smoked a packet of cigarettes every few days and, in 2003, smoked as much as a packet a day.[118] Mardie Bowie's medical records[119] confirm these problems, as well as the existence of repetitive symptoms of chest pain. The records noted Mardie Bowie had reported that she smoked in the order of 20 cigarettes a day as at 2003. They recorded the presence of arthritis due to obesity, and noted her weight, for example, as 152 kilograms as at 2002.
[255] As against this, there is no evidence to suggest that these problems had, to date, precluded the proper performance of Mardie Bowie's work duties.
[256] It was probable Mardie Bowie would have completed her qualification, as Francis Bowie's unchallenged evidence on the point anticipated, towards the end of 2007. However, given the dearth of evidence as to the likelihood of available work in her chosen field in the region after becoming qualified, there should still be a significant discount to reflect that degree of uncertainty. In the cases of Frank Billy and Fred Bowie, that discount was 35 per cent, however, there was a greater degree of uncertainty associated with the probability of them completing their apprenticeships. In all of the circumstances, I will adopt a discount of 30 per cent upon the forecast weekly notional income of Mardie Bowie to reflect the contingency that she might not have completed her course and, more particularly, that she might not have secured and been able to perform consistent full-time work in her chosen field. That discount will be introduced in a graduated way from the approximate point of time when she would have transitioned from completion of her traineeship into employment as a qualified sports and recreation officer.
[257] Such a discount will give rise to a moderate result in comparison to the local median total personal weekly income figure of $554 per week as disclosed in the 2011 Census Profile.[120]
[258] The likely after-tax income of Mardie Bowie between the date of the Lockhart River air crash and the present, had she not passed away, was as follows:
[259] Because Francis Bowie was and apparently remains in employment, I will apply the figures in table 9.1 of Luntz on Damages relevant to the situation where both spouses are working. Given the limitations in the evidence about Francis Bowie's income, I will, as is urged in the plaintiff's written submissions[122] apply the dependency percentages premised on his income being approximately the same as that of Mardie Bowie.
[260] However, before moving to the application of dependency schedules, it is necessary to take account of a small but regular diminution of the income available for apportionment under table 9.1. Francis Bowie gave evidence of Mardie Bowie providing some services to her natural mother Anni Bero. This included some generalised assistance when Mardie Bowie would visit her mother in Townsville, but no particular estimate was provided as to what time that consumed. There was, however, an estimate given that Mardie Bowie would send her mother about $50 a fortnight,[123] that is, $25 a week or $1,300 annually. I infer from the context in which that evidence was given that that regular payment was made in order to assist Mardie Bowie's mother. It therefore is a compensable lost benefit flowing from Mardie Bowie's death. Thus in identifying Mardie Bowie's income in the exercise now following it will be necessary to first reduce it by the amount which would go to Anni Bero and thus not have been potentially available to the deceased's spouse and children.
[261] Further, in applying the table 9.1 percentages it will be necessary to take into account Dyle's presence in the household as a second dependent child, albeit not one who can be compensated. This will dilute the respective entitlements of Mardie Bowie and Johnny Tamwoy.
[262] Mardie Bowie's income until mid-2010 about when Johnny Tamwoy turned 18, was $130,417.75. In that time about $6,700 would have been paid to Anni Bero, reducing the income available to $123,717.75. Table 9.1 suggests 20.8 per cent of that amount ought be allocated to Francis Bowie, yielding the sum of $25,753.29, and 15.6 per cent ought be allocated to Johnny, yielding the sum of $19,299.97.
[263] Francis Bowie's statement explained Johnny was not living with them when Mardie Bowie died and that Mardie Bowie would send maybe $50-$100 a fortnight across to Thursday Island for Johnny to help support him.[124] This would give rise, using $75 as an average, to an actual loss of about $12,000 for Johnny prior to him turning 18. That is $8,000 less than the proposed award. It is likely, however, that there would be times of the year when Johnny would have been back living with Mardie and Francis Bowie, for example, during school holidays, in which case a greater amount would be required. In the circumstances, Johnny's above calculated figure of $19,299.97 should be reduced by 25 per cent to $14,474.98.
[264] For the period from 1 July 2010 to the present, Mardie Bowie's adjusted income would have been $58,568.24. In that time about $2,975 would have been paid to Anni Bero, reducing the income available to $55,593.24. With Dyle still a dependent, Francis Bowie would be entitled to 23.9 per cent thereof, yielding a sum of $13,286.78.
[265] As to Anni Bero, allowing $25 a week for a period of 387 weeks yields a sum of $9,675.
[266] There should be some general allowance for the vicissitudes of life by the discounting of those figures. As with the earlier discussed claims, I will adopt a discount of 15 per cent to give rise to total awards for past economic loss as follows:
[267] For reasons already explained, Mardie Bowie's future income ought be assessed by reference to her likely earnings if she were to work as a sports and recreation officer, discounted by 30 per cent. In the circumstances, I will adopt a weekly after-tax income figure of $710 discounted by 30 per cent to $497. That weekly figure should, for so long as an allowance of $25 a week is to continue for Anni Bero, be reduced to $472 a week.
[268] Had Mardie Bowie survived, she would currently be 38 years of age. The 2011 Census Profile does not suggest a particularly significant drop of females in work once they reach the 55-64 age bracket.[125] However, her spectrum of health problems suggests a heightened prospect of incapacity or death prior to ordinary retirement age.
[269] The question arises whether this factor should be allowed for subsequently by way of a higher discount for the vicissitudes of life in comparison to the other claimants or whether it should be the subject of separate discounting in calculating a primary sum as discussed by Gleeson CJ in De Sales v Ingrilli.[126] Given the array of specific evidence about Mardie Bowie's health problems it is appropriate to have specific regard to them as part of the process of determining the primary sum prior to discounting for the vicissitudes of life. In all of the circumstances, I will assume Mardie Bowie would have worked for another 17 years to age 55.
[270] The plaintiff submits the likely disparity in income as between Francis Bowie and Mardie Bowie had she lived, would, in the long run, have been sufficiently material for some allowance to be made for it in identifying an appropriate percentage of dependency. As already mentioned, there is little evidence of substance to provide guidance as to Francis Bowie's income and future income. There was, however, evidence of him suffering from gout to such an extent that his joints swell, interfering with his capacity to work.[127] While Mardie Bowie's spectrum of health problems was broader, the positive evidence that Francis Bowie's health difficulty interferes with his capacity to work supports the plaintiff's submission that, in calculating the future loss of benefit, it ought be assumed that Francis Bowie's likely income would be equal to 90 per cent, rather than 100 per cent of Mardie Bowie's likely income had she lived.
[271] Dealing with Anni Bero first, she was born on 15 August 1957. In the circumstances, I will allow a further 15 years as the period during which she would have continued to receive the benefit of $25 per week. Allowing $25 a week for a period of 15 years (555 multiplier) yields the sum of $13,875. Applying a 25 per cent discount for vicissitudes yields $10,406.25
[272] As to Francis Bowie's award, allowing $472 a week for one more year until Dyle turns 18 (51 multiplier) yields $24,072. Applying the formula identified in table 9.1 of Luntz on Damages, 90 per cent of 23.9 per cent (the dependency of a couple with equal incomes with one child) equals 21.51, and 10 per cent of 43.8 per cent (the dependency of a one-earner couple with one child) equals 4.38. This gives rise to a total percentage of dependency of 25.89. Allowing a dependency to the extent of 25.89 per cent on $24,072 yields $6,232.24.
[273] Allowing $472 a week for a period of 15 years commencing in one year's time (between when Dyle turns 18 to the end of Anni Bero's compensable period) (multiplier 504) yields $237,888.
[274] Applying the formula identified in table 9.1 of Luntz on Damages, 90 per cent of 31.2 (the dependency of a couple with equal incomes) equals 28.08, and 10 per cent of 65.6 per cent (the dependency of a one-earner couple) equals 6.56. This gives rise to a total percentage of dependency of 34.64 per cent.
[275] Allowing a dependency to the extent of 34.64 per cent on $237,888 gives Francis Bowie $82,404.40.
[276] Allowing $497 a week for a further two years commencing after 15 years (when Anni Bero is no longer receiving $25 a week) (48 multiplier) yields $23,856.
[277] Allowing a dependency to the extent of 34.64 per cent on $23,856 gives Francis Bowie $8,263.72.
[278] Francis Bowie's running total for future loss of income is therefore $96,900.36 ($6,232.24 + $82,404.40 + 8,263.72).
[279] The plaintiff submits for an overall discount of 15 per cent to allow for the vicissitudes of life, however, for the more prolonged period now under consideration a more substantial discount ought be applied. In the two other claims already dealt with, I adopted a discount of 25 per cent in respect of the surviving partners. Mardie Bowie's broad spectrum of health problems has already been allowed for in calculating the primary sum. They ought not now occasion a discount beyond the 25 per cent discount I have identified as generally appropriate for the vicissitudes of life in the other claims.
[280] Applying a discount of 25 per cent to $96,900.36 yields $72,675.27.
[281] The plaintiff did not submit for any award for loss of the benefit of services in respect of Johnny. This is because, at the time of Mardie Bowie's death, Johnny was living at Thursday Island, where he was going to school, with his uncle and would be sent money by Mardie Bowie and Francis Bowie for his support.[128]
[282] Mardie Bowie and Francis Bowie would share cooking duties and, while Francis Bowie would mow the lawn, Mardie Bowie would do housework inside which, in addition to her share of the cooking, involved cleaning and washing.[129] Francis Bowie estimated Mardie Bowie's performance of the aforementioned work took about two hours a day, or about 14 hours each week.[130] However, it appears that when Mardie Bowie's health problems would result in her being unable to do housework, Francis Bowie would do work in her place.[131] Allowing for that consideration and the probability that the estimate of 14 hours per week was not a conservative estimate, I will allow 12 hours each week.
[283] Mardie Bowie would have at least one day fishing every second weekend and her catch would be used by the family for family meals.[132] Francis Bowie estimates she spent four to six hours fishing for the family each week.[133] Adopting the middle of that estimate, namely five hours, there should be some allowance made for the fact that on occasion Mardie Bowie's ill health would prevent her fishing.[134] Some allowance should also be made for the fact that some component of the catch would have been distributed to Dyle and, thus, some component of the time spent was not attributable to servicing the dependents in the claim. To allow for those features I will discount the time spent by 25 per cent to 3.75 hours per week.
[284] The plaintiff submits generally for Mardie Bowie's contribution to services to be assessed at $20 per hour.[135] That is, it was not submitted Mardie Bowie's level of fishing expertise warranted a higher amount per hour as was adopted in respect of the two claims considered above. That is reasonable given the limited evidence about this aspect of Mardie Bowie's activity.
[285] Given the common hourly rate it is unnecessary to split the calculation of housework services compared to provision of fish. The total hours are 15.75 hours per week (12 + 3.75).
[286] Allowing 15.75 hours a week at $20 per hour, that is, $315 per week, for a period of 387 weeks yields a sum of $121,905. Applying the above discussed discount of 15 per cent for vicissitudes of life gives rise to a total award for past loss of the benefit of services for Francis Bowie of $103,619.25.
[287] The determination of the award for future loss of services should be generally consistent with the above approach, although consistently with the approach to future loss of income I will assume given Mardie Bowie's poor health that she would not have continued to provide the same hours of service indefinitely. While she may have retained the capacity to provide some services beyond the age of 55 (the age at which her time in paid employment has, because of the evidence of her ill health, been identified as ceasing) it may reasonably be inferred there would gradually have been a tapering off in the time spent providing services. In all of the circumstances I will adopt 55 years of age as a cut-off point, that is, a further 17 years.
[288] The plaintiff submits the level of assistance provided by Mardie Bowie to Francis Bowie would likely have increased over the years, given the impact of Francis Bowie's gout. The evidence of Francis Bowie's current girlfriend, Estelle Gebadi, confirmed the impact of Francis Bowie's gout upon his performance of physical tasks about the house.[136] The evidence does not suggest Francis Bowie's problems in relation to gout will, in the future, be substantially different to the past. Any consideration of them is counter-balanced by the likely slight diminution in the need for household services as Dyle has grown older. In the circumstances, I will not increase the weekly number of hours of 15.75 identified above.
[289] Allowing 15.75 hours a week at $20 per hour ($315 each week) for a period of 17 years (603 multiplier) yields the sum of $189,945.
[290] That figure should be reduced by 25 per cent for vicissitudes, giving rise to the sum of $142,458.75.
[291] Johnny is an adult now. There is no need for management fees.
[292] Funeral expenses paid by Workcover, in the amount of $5,065.50, are sought.[137] There is no issue taken with the reasonableness of that amount.
[293] The sum of $5,065.50 should be awarded for funeral expenses.
[295] That amount is fair and reasonable. It does not exceed the $500,000 limit, so there will be judgment for the plaintiff in the total actual amount, namely $388,255.20.
[296] After reduction for funeral expenses the total balance is $383,189.70.
[297] It is necessary to direct an apportionment of that amount as between the various dependents. The apportionment is calculated as follows:
Francis: 100/383,189.70 x 351,920.33 = 91.84 per cent
1. Judgment for the plaintiff (Francis Bowie, for and on behalf of the estate and dependents of Mardie Bowie, deceased) against the defendant in the sum of $388,255.20.
2. I direct pursuant to s 35(9) of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) that:
(a) $5,065.50 of the judgment sum is payable for funeral expenses;
(b) the balance of the judgment sum, after deduction from it of any costs not recovered from the defendant, shall be divided amongst the following persons in the following proportions:
MIMIA WHAP, FOR AND ON BEHALF OF THE ESTATE AND DEPENDENTS OF HELENA WOOSUP (194 OF 2007)
Her de facto husband: Mimia Whap, born 25 September 1975 (now 37)
Their children: Ramsley Woosup, born 23 November 1995 (18 in 2013)
Her natural mother: Olive Bagie, born 22 December 1957 (now 54)
Her stepfather: Robert Bagie, born 25 March 1963 (now 49)
[300] Before Helena Woosup's death, she and her de facto husband Mimia Whap were living at 101 Mimi Close, Injinoo with their four youngest children.
[301] The older child, Ramsley, was living with his grandmother, Olive Bagie, but still receiving financial domestic and parental support from Helena Woosup.[138]
[302] Mimia Whap and Helena Woosup had been a couple since 1994 and expected to remain together for life.[139] A mild attempt was made in cross-examination of the witnesses in respect of this claim to explore the possibility of domestic violence in the relationship, presumably to undermine the impression otherwise arising from the evidence, that this couple were strongly committed to each other.[140] In the upshot, there was no evidence of any protracted pattern of domestic discord - to the contrary, the evidence as a whole suggested this was a strong relationship, likely to endure permanently.
[303] At the time of Helena Woosup's death, Mimia Whap was employed at the Injinoo Council, working as a labourer/operator earning approximately $290 net per week.[141] Mimia Whap was also earning about $5,600 tax-free per year through his employment in the army reserve which equated to a further $107 net per week.[142]
[304] At the time of her death, Helena Woosup was working part-time, undertaking a traineeship, funded through the CDEP scheme, to become a sports and recreation officer. She commenced her traineeship in about February 2003 and was expected to complete it in 2007.[143]
[305] Her employer's records,[144] which do not appear to be complete, provided information as to her earnings. They were used by Mark Thompson, the forensic accountant, to provide summaries, in Sch A to his report,[145] in respect of her likely income as a trainee sports and recreation officer and then a qualified sports and recreation officer, working for the council or a similar employer. The foundations[146] and calculations for the figures there identified appear to be correct. The pertinent issue is whether she would have completed her traineeship, become a qualified sports and recreation officer, and secured work in that capacity on a full-time basis.
[306] The defendant emphasises the deceased only had a limited recent paid work history, a consequence of the fact that for many years after she left school she was engaged in domestic duties and caring for young children.[147] The tax records suggest she was making reasonable progress towards her qualification, apparently having completed all or most of the certificate I and II levels of her qualification, albeit that in some instances she had repeated subjects.[148]
[307] The defendant also emphasises the absence of material evidence as to what work would have been available in the local area had Helena Woosup completed her course.
[308] In my view, it was probable Helena Woosup would have completed her qualification, as Mimia Whap's unchallenged evidence on the point anticipated, in 2007. However, in the light of the dearth of evidence as to the likelihood of available work in her chosen field in the region after becoming qualified, there should still be a significant discount to reflect that degree of uncertainty. As with Mardie Bowie, I will adopt a discount of 30 per cent upon the forecast weekly income to reflect the contingency that she might not have completed her course and that she might not have secured and been able to perform consistent full-time work in her chosen field. That discount will be introduced in a graduated way from the approximate point of time when she would have transitioned from completion of her traineeship into employment as a qualified sports and recreation officer.
[309] The likely after-tax income of Helena Woosup between the date of the Lockhart River air crash and the present, had she not passed away, was as follows:
[310] Because Mimia Whap was and apparently remains in employment, I will apply the figures in table 9.1 of Luntz on Damages relevant to the situation where both spouses are working. The plaintiff submits that in the period between the crash and now, Mimia Whap's income would initially have been higher but by now would have been lower than Helena Woosup's.[150] That submission assumes only a modest annual increase in Mimia Whap's income had he kept the same job. Bearing in mind the much more dramatic increase in the same era in Helena Woosup's forecast wage and the above discussed discounting of it, I conclude that in the era between the crash and now it is more likely that Helena Woosup's likely overall income in that era would be equal to 90 per cent rather than 100 per cent of Mimia Whap's income.
[311] Applying the formula identified in table 9.1 of Luntz on Damages, the relevant dependency percentages for a two-income family ought be reduced by 10 per cent.
[312] Applying the figures in table 9.1 of Luntz on Damages the total dependency for five children where both spouses are earning an income is 65.6 per cent. That total ought be reduced to 59.04 per cent with the percentage for the spouse of 15.1 per cent being reduced to 13.59 per cent, and the percentage for each child being reduced from 10.1 per cent to 9.09 per cent. Applying those percentages to the above table yields the sum of $21,640.47 to Mimia Whap and $14,474.75 to each child.
[313] There should be some general allowance for the vicissitudes of life by the discounting of those figures. A discount of 15 per cent is again appropriate. This makes the loss of past benefit to Mimia Whap $18,394.40, and the loss to each of the children $12,303.54.
[314] For reasons already explained, Helena Woosup's future income ought be assessed by reference to her likely earnings as a full-time sports and recreation officer, discounted by 30 per cent. In the circumstances, I will adopt a weekly after-tax income figure rounded to $700 and discounted for contingencies by 30 per cent to $490.
[315] Since Helena Woosup's death, Mimia Whap's working fortunes varied. Initially, he did not work in order to look after the children, but in more recent times has obtained work at Weipa in the Rio Tinto mine, generating a more significant income than he would likely have achieved had he stayed in employment at Injinoo. His evidence was to the effect that, but for Helena Woosup's death, he would likely have remained in the Injinoo region, with both of them perhaps pursuing some work in the mines but not for extended periods away from their home base at Injinoo.[151]
[316] It is important to bear in mind that, had Helena Woosup lived, she and Mimia Whap would continue to have approached their working lives in the context that they were a couple who intended to remain together. Had she lived, it is unlikely Mimia Whap would have sought work further away from Injinoo, for example in the mines, unless Helena Woosup was doing likewise. His evidence implies as much. On the other hand, the reality is that he had a longer work history than Helena Woosup. Like her, he was, and is, well motivated. In all of the circumstances, I will continue the above adopted assumption that in the future Mimia Whap was likely to have earned about 10 per cent more than Helena Woosup and reduce the dependency percentages from table 9.1 in Luntz on Damages accordingly.
[317] Allowing $490 a week for one year (when Ramsley turns 18) (51 multiplier) yields $24,990. For Mimia Whap, 13.59 per cent of that sum yields $3,396.14 and, for each of the five children, 9.09 per cent of that sum yields $3,087.09.
[318] For about two years thereafter (when Glendon turns 18) the relevant family members will comprise Mimia Whap, Glendon, Tabua, Dereece and Rita. Allowing $490 a week for two years in three years' time (95 multiplier) yields $46,550.00. For Mimia Whap, 14.94 per cent of that sum yields $6,954.57 and, for each of the four children, 10.26 per cent of that sum yields $4,776.03.
[319] For about one year thereafter (when Tabua turns 18) the relevant family members will comprise Mimia Whap, Tabua, Dereece and Rita. Allowing $490 a week for one year in four years' time (44 multiplier) yields $21,560. For Mimia Whap, 16.65 per cent of that sum yields $3,589.74 and, for each of the three children, 11.79 per cent of that sum yields $2,541.92.
[320] For about one year thereafter (when Dereece turns 18) the relevant family members will comprise Mimia Whap, Dereece and Rita. Allowing $490 a week for one year in five years' time (42 multiplier) yields $20,580. For Mimia Whap, 18.72 per cent of that sum yields $3,852.58 and, for each of the two children, 14.04 per cent of that sum yields $2,889.43.
[321] For about four years thereafter (when Rita turns 18) the relevant family members will comprise Mimia Whap and Rita. Allowing $490 a week for four years in nine years' time (148 multiplier) yields $72,520. For Mimia Whap, 21.51 per cent of that sum yields $15,599.05 and, for Rita, 17.8 per cent of that sum yields $12,908.56.
[322] Had Helena Woosup survived, she would currently be 33 years of age. In all of the circumstances I will assume she would have worked for another 32 years, to age 65.
[323] Allowing $490 a week for a period of 22 years from 10 years' time (432 multiplier) yields $211,680. A dependency to the extent of 28.08 per cent yields $59,439.74.
[324] The plaintiff again submits for an overall discount of 15 per cent to allow for the vicissitudes of life, whereas the defendant contends for a more substantial discount. For the reasons already articulated in respect of the case relating to Frank Billy, a further discount of 25 per cent is reasonable to make allowance for the vicissitudes of life in respect of Mimia Whap's award. However, in respect of the children, the discount should be 20 per cent.
[325] Applying a discount of 25 per cent for Mimia Whap and 20 per cent for the children gives rise to total awards for future economic loss as follows:
[326] The evidence of Mimia Whap is that Helena Woosup would spend one and a-half hours per week washing, six hours per week cooking and about two and a-half hours per week cleaning, a total of 10 hours per week.[152] He estimates Helena Woosup provided at least four hours per weekday by way of child care and six hours per weekend day, giving rise to a total of 32 hours each week by way of general child care.
[327] In the circumstances, I will adopt a starting total of 42 hours per week for Helena Woosup's provision of services to the household.
[328] There should be some small portion of the total attributable to the parental care and assistance provided to Ramsley. Ramsley was no longer living at the family home, but Mimia Whap provided some general evidence that, notwithstanding that fact, Helena Woosup was still providing support to Ramsley. That was not quantified, but it would obviously be significantly less time than in respect of the members of Helena Woosup's household.
[329] An adjustment will also need to be made to reflect the above approach to Helena Woosup's future income which assumed that she would transition from part-time into full-time employment from the start of 2008. That would inevitably have reduced the number of hours she spent on her domestic and parental duties. In the circumstances, for the period from the date of the crash to the end of 2007, a period of 138 weeks, I will allow Mimia Whap 10 hours a week for the washing, cooking and cleaning service provided, and 32 hours a week to the children for child care, but will thereafter reduce each of those amounts by 30 per cent to seven hours and 22.4 hours respectively.
[330] Thus, for the 138 weeks from the date of the crash to the end of 2007, I will allow Mimia Whap 10 hours per week at $20 per hour ($200 per week) for washing, cooking and cleaning, yielding an amount of $27,600. For the remaining 249 weeks to the present, I will allow seven hours per week at $20 per hour ($140 per week), yielding $34,860.
[331] As to the children, for the 138 weeks from the date of the crash to the end of 2007, I will allow 32 hours per week at $20 per hour ($640 per week), yielding a total of $88,320. I will allow five per cent of that sum to Ramsley, namely $4,416, and divide the balance equally between the remaining four children, yielding $20,976 each. For the 249 weeks from the start of 2008 to the present, I will allow 22.4 hours per week at $20 an hour ($448 per week), giving rise to a total of $111,552. I will allow five per cent of that sum to Ramsley, namely $5,577.60, and divide the balance equally between the remaining four children, giving rise to a total of $26,493.60 each.
[332] Applying the above discussed discount of 15 per cent for vicissitudes of life will give rise to total awards for past loss of the benefit of services as follows:
[333] The determination of the award for future loss of services should be generally consistent with the above approach, however, consistently with the approach to future loss of income, I will apply a discount of 25 per cent for the vicissitudes of life in respect of the award for Mimia Whap and 20 per cent in respect of the children.
[334] The plaintiff submits the domestic duties of washing, cooking and cleaning would likely have continued until Helena Woosup reached the age of 70 in 37 years' time. For the reasons given in respect of the case relating to the Frank Billy, I will adopt 65 years of age as a cut-off point, that is, a further 32 years.
[335] Allowing seven hours per week at $20 per hour ($140 each week) for a period of 32 years (845 multiplier) yields $118,300.
[336] The dependent children will progressively come of age during the first nine of those 32 years. The duration of some of the tasks the deceased would have performed had she lived would have eased as the children grew older and in turn ceased dependency.[153]
[337] Allowing for that consideration the aforementioned sum of $118,300 should be reduced by 15 per cent to $100,555.
[338] That sum should in turn be reduced by 25 per cent for vicissitudes, giving rise to an award to Mimia Whap in the sum of $75,416.25.
[339] As to the children, they would share 22.4 hours per week at $20 per hour, a total of $448 per week. Of that amount, Ramsley would be entitled, consistent with the above reasoning, to five per cent, namely $22.40 per week. This leaves $425.60 to be shared between four children, namely $106.04 each per week.
[340] Allowing $22.40 per week for one year when Ramsley turns 18 (51 multiplier) yields $1,142.40. Applying a 20 per cent discount for contingencies yields $913.92.
[341] Allowing $106.40 per week for Glendon for a period of three years (146 multiplier) yields $15,534.40. Applying a 20 per cent discount for contingencies yields $12,427.52.
[342] Allowing $106.40 per week for Tabua for a period of four years (190 multiplier) yields $20,216. Applying a 20 per cent discount for contingencies yields $16,172.80.
[343] Allowing $106.40 per week for Dereece for a period of five years (232 multiplier) yields $24,684.80. Applying a 20 per cent discount for contingencies yields $19,747.84.
[344] Allowing $106.40 per week for Rita for a period of nine years (380 multiplier) yields $40,432. Applying a 20 per cent discount for contingencies yields $32,345.60.
[345] Mimia Whap estimated that in the years to come as Helena Woosup's parents aged, she would have increasingly provided care and assistance to them. He estimated that would be to the extent of at least six hours per week.[154] The plaintiff submits for an allowance of three hours per week each for Robert and Olive Bagie for a period of 20 years. Given the graduated nature of the onset of such care and assistance, I will allow them each three hours per week for a period of 15 years. Three hours per week at the rate of $20 per hour ($60 per week) for a period of 15 years (555 multiplier) yields the sum of $33,300. Applying a 25 per cent discount for contingencies yields the sum of $24,975 each.
[346] Funeral expenses paid by Workcover in the amount of $5,065.50 are sought.[155] No issue was taken by the defendant in respect of the reasonableness of that amount.
[347] The sum of $5,065.50 should be awarded for funeral expenses.
[348] There is no need to consider management fees because the award total exceeds $500,000.
[350] That amount is fair and reasonable but it exceeds the $500,000 limit, so there will be a judgment for the plaintiff against the defendant in the sum of $500,000.
[351] Deducting the funeral costs leaves a remaining award of $494,934.50.
[352] Subject to the deduction from that balance of any costs not recovered from the defendant, the balance shall be divided proportionately among the remaining dependents.
[353] The proportionate entitlements are calculated as follows:
$633,239.80 - $5,065.50 = $628,174.30 for percentage apportionment
Mimia: 100/628,174.30 x 216,525.52 = 34.46 per cent
Ramsley: 100/628,174.30 x 24,181.69 = 3.85 per cent
Glendon: 100/628,174.30 x 71,370.72 = 11.36 per cent
Dereece: 100/628,174.30 x 83,036.12 = 13.22 per cent
1. Judgment for the plaintiff (Mimia Whap, for and on behalf of the estate and dependents of Helena Woosup, deceased) against the defendant in the sum of $500,000.
2. I direct pursuant to s 35(9) of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) that:
(a) $5,065.50 of the judgment sum is payable for funeral expenses;
(b) the balance of the judgment sum, after deduction from it of any costs not recovered from the defendant, shall be divided amongst the following persons in the following proportions:
ELIZABETH STEPHEN, FOR AND ON BEHALF OF THE ESTATE AND DEPENDENTS OF GORDON KRIS (195 OF 2007)
His de facto spouse: Elizabeth Stephen, born 26 October 1970 (now 41)
Their children: Maryanne Stephen, born 9 December 1989 (18 in 2007)
Caroline Stephen, born 15 January 1991 (18 in 2009)
His biological parents: Padaila Kris and Wanika Mooka
[356] Maryanne and Caroline were traditionally adopted to Elizabeth Stephen's aunt and sister respectively. There is little evidence suggesting they were dependents of Gordon Kris. The statement of Elizabeth Stephen contains the proposition that, whilst she traditionally adopted out both children, "they all eventually came back to me".[156] That evidence is not sufficiently precise to allow any conclusion to be drawn as to dependency. The only other evidence touching upon any dependency of either Maryanne or Caroline is Elizabeth Stephen's statement that part of the fishing catch regularly gathered by Gordon Kris would be given to the family who looked after Maryanne.[157] In the circumstances, I will allow some dependency in respect of that service for Maryanne, but there is insufficient evidence of any dependency in respect of Caroline.
[357] The plaintiff also asserts that the persons to whom Gordon Kris had been traditionally adopted are dependents. However, as already explained, traditional adoption will not make a person a family member within the meaning of the Commonwealth Act. There is no evidence that Gordon Kris's traditionally adoptive parents come within any of the relationships within the Act's definition of family members. They are not potential beneficiaries of an award under the Act. Moreover, in so far as Gordon Kris's biological parents are concerned, they are only dependents to the limited extent that they too were beneficiaries of Gordon Kris's service of providing a share of his fishing catch to them.
[358] Before Gordon Kris's death, he, his de facto wife Elizabeth Stephen and their five youngest children lived at 104 Mimi Close, Injinoo.
[359] Gordon Kris and Elizabeth Stephen had been in a relationship since 1986 and in a permanent de facto relationship since 1989.
[361] At the time of his death, Gordon Kris was employed as an apprentice carpenter by the Injinoo Community Council. He commenced the apprenticeship on 31 March 2003 and the normal completion date was 29 March 2007.[160] As with the other deceased apprentices, forecasting his likely income until the point he was due to complete his apprenticeship is relatively straightforward. The real issue is what was to likely then follow.
[362] The defendant submits Gordon Kris would not have completed his apprenticeship and, even if he did, that there is no evidence of any substance as to his prospects of consistent employment as a carpenter. It submits that it was unlikely he would have achieved a higher than average level in the workplace, although it concedes the evidence supports he would have been in the higher range of that average. The defendant also emphasises the lack of evidence as to his actual work capacity or performance.
[363] The plaintiff on the other hand submits Gordon Kris would have completed his apprenticeship and progressed at the very least to employment as an employed carpenter. While there was evidence led of the potentially higher income he could earn as a subcontract carpenter or a carpenter in the mining industry, that was not pressed as a basis for assessment. Moreover, there was no evidence suggesting the prospect of Gordon Kris aspiring to work away from Injinoo in the mining industry. Nonetheless, the contingency that he may have done so or that he may have earned a higher income as a subcontract carpenter rather than an employed carpenter ought not be overlooked in the imprecise exercise of forecasting likely income.
[364] There was no direct evidence advanced on the plaintiff's part as to the probability or expectation of Gordon Kris successfully completing his apprenticeship. The defendant points to Gordon Kris's past enrolment in two TAFE courses. He failed part of the first and withdrew from the second. However, the TAFE records suggest that Gordon Kris was applying himself more diligently in respect of the TAFE course relating to his apprenticeship than he apparently had in respect of the courses he had enrolled in as a younger man. At the time of his death he had completed six of the required 36 units of his course, [161] a better completion rate than a number of the other deceased in this matter.
[365] This feature seems likely to have occasioned the defendant's concession that while Gordon Kris was unlikely to have achieved in the workplace outside of the average, the evidence supports him being regarded as being in the higher range of average.[162] In all of the circumstances, and for the same reasons discussed in respect of Frank Billy, I will approach the assessment on the basis that Gordon Kris would have completed his apprenticeship, importing some graduated discounting of his forecast income to allow for the contingency that he may have taken more than four years to complete it.
[366] In the cases relating to Frank Billy and Fred Bowie, I adopted a discount of 35 per cent to adequately reflect the degree of uncertainty associated with the probability of them completing their apprenticeships, and securing and maintaining work as employed carpenters. While the case relating to Gordon Kris involves the same dearth of evidence as to the latter, the degree of uncertainty as to the former is not quite as significant as it was in respect of Frank Billy and Fred Bowie. In all of the circumstances, I will adopt a discount of 30 per cent.
[367] The forensic accountant, Mark Thompson, provided summaries in respect of Gordon Kris's likely income as an apprentice and then employed carpenter in Sch A to his report.[163] The foundations[164] and calculations for the figures there identified appear to be correct. They are used in the below forecast of Gordon Kris's likely income.
[368] The likely after-tax income of Gordon Kris between the date of the Lockhart River air crash and the present, had he not passed away, was as follows:
[369] Between the time of the crash to about 2 October 2010 (when Ruby turned 18) the approximate adjusted total income would have been about $136,656.49. Applying the figures in table 9.1 of Luntz on Damages, the total dependency for five children where the income of the spouse was zero is 82.8 per cent. The table suggests that 22.3 per cent of the total should be attributed to Elizabeth Stephen and 12.1 per cent should be attributed to each child. This yields the sum of $30,474.40 to Elizabeth Stephen and $16,535.44 to each of the five children.
[370] From about 2 October 2010 to 9 January 2012 (when Fanny turned 18) the approximate adjusted total income would have been about $40,158.02. The total dependency for four children where the income of the spouse was zero is 81.1 per cent. Attributing a dependency of 25.1 per cent of the total to Elizabeth Stephen yields the sum of $10,079.66. Attributing a dependency of 14 per cent of the total yields $5,622.12 each to Fanny, Emma, Fredricka and Rim.
[371] From about 9 January 2012 to the present, the approximate adjusted total income would have been $26,381.90. The total dependency for three children where the income of the spouse was zero is 79 per cent. Attributing a dependency of 28.9 per cent of the total sum to Elizabeth Stephen yields $7,624.37. Attributing a dependency of 16.7 per cent of the total yields $4,405.78 each to Emma, Fredricka and Rim.
[372] There should be some general allowance for the vicissitudes of life by the discounting of those figures. A discount of 15 per cent is again appropriate. This gives rise to total awards for past economic loss as follows:
[373] For reasons already explained, Gordon Kris's future income ought be assessed by reference to his likely earnings if he were to work as an employed carpenter, discounted by 30 per cent.
[374] Continuing the above discussed use of Sch A in Mr Thompson's report, Gordon Kris's weekly after-tax income if working as an employed carpenter would likely have been $919.23 in 2012 and $920.19 in 2013. On the assumption the figure would likely have plateaued from then onwards I will, for the purposes of assessing future income, simply adopt a weekly after-tax income figure of $920.19 discounted for contingencies by 30 per cent to $644.13. Allowing $644.13 net per week for the balance of this year (a period of approximately 11 weeks) by which time Emma will have turned 18, yields $7,085.43.[165] For Elizabeth Stephen, 28.9 per cent of that sum yields $2,047.69. For each of Emma, Fredricka and Rim, 16.7 per cent of that amount yields $1,183.27.
[375] For the next three years thereafter (when Fredricka will turn 18) the relevant family members will comprise Elizabeth Stephen, Fredricka and Rim. Allowing $644.13 net per week for three years (146 multiplier)[166] yields $94,042.98. Elizabeth Stephen's entitlement is 34.4 per cent thereof or $32,350.79, and Fredricka and Rim's percentage is 20.8 per cent or $19,560.94 each.
[376] For about one year thereafter the relevant family members will comprise Elizabeth Stephen and Rim. Allowing $644.13 per week for a further year (when Rim will turn 18) in four years' time (44 multiplier) yields $28,341.72. Elizabeth Stephen's entitlement is 43.8 per cent thereof or $12,413.67 and Rim's percentage is 28.1 per cent thereof or $7,964.02.
[377] Had Gordon Kris survived, he would currently be 45 years old. As with the earlier discussed deceased, I will assume Gordon Kris would have worked for another 20 years, to age 65.
[378] Calculating the remaining 16 years of that period from four years' time (476 multiplier) at $644.13 per week yields $306,605.88. Allowing a dependency to the extent of 65.6 per cent of that sum allows Elizabeth Stephen $201,133.46.
[379] The plaintiff acknowledges a further discount of that sum should be allowed for the prospect that, as the children grew older, she might have returned to work and thereby been less reliant upon Gordon Kris's income. There is no evidence of Elizabeth Stephen having a past work history of any substance. In all of the circumstances, a discount of 15 per cent applied commencing in four years' time will make adequate allowance for the contingency of her return to work. That reduces the amount allowed to Elizabeth Stephen commencing from four years' time to $170,963.44.
[380] As with earlier claims, the plaintiff submits for an overall discount of 15 per cent on each of the claims for future economic loss to allow for the vicissitudes of life, whereas the defendant contends for a more substantial discount. For the reasons already articulated in respect of the earlier claims, a further discount of 25 per cent is reasonable to make allowance for the vicissitudes of life in respect of Elizabeth Stephen. However, in respect of the children, the discount should be 20 per cent.
[381] Applying a discount of 25 per cent for Elizabeth Stephen and 20 per cent for the children gives rise to total awards for future economic loss as follows:
[382] Elizabeth Stephen provided evidence that Gordon Kris would do most of the work outside the house, such as the mowing and gardening, and perform maintenance on their three motor vehicles. In combination, this appears to have consumed about six hours each week.
[383] Elizabeth Stephen estimates Gordon Kris contributed about 14 hours per week taking care of the children.[167]
[384] I will allow $20 per hour for the provision of domestic care and assistance and child care, consistent with the above-discussed claims.
[385] Gordon Kris would hunt for seafood, supplying the household with catches of crayfish, fish, turtle, turtle eggs and dugong. The product of the fishing expeditions would be shared not only with his household but with his adoptive parents, his natural parents and also the family who looked after Maryanne.[168] He would also hunt for pig and share the pig with family. While the evidence on the topic lacked some precision, I infer the amount of time Gordon Kris spent fishing and hunting was, on average, about eight hours per week.[169]
[386] The plaintiff claims that in respect of hunting and fishing, the service ought be valued at $25 per hour given the special skill involved. As with the cases relating to Frank Billy and Fred Bowie, I accept that is a reasonable approach. The evidence suggests the only non-dependents who regularly received a share of the catch were Gordon Kris himself and, more vaguely, those who cared for Maryanne. In the circumstances, only a slight discount of the eight hours a week is required to allow for non-dependents receiving a share of the catch. I will apply a discount of 10 per cent, giving rise to 7.2 hours per week.
[387] Allowing 7.2 hours per week at $25 per hour gives rise to the sum of $180 to be apportioned as between those dependents who did share in the catch, namely Elizabeth Stephen, Ruby, Fanny, Emma, Fredricka, Rim, the deceased's biological parents and Maryanne. That apportionment between nine people gives rise to $20 each per week.
[388] In respect of Elizabeth Stephen, allowing six hours per week for domestic services at $20 per hour yields $120 per week. Combining that figure with her weekly amount in relation to the provision of fishing and hunting services of $20 gives rise to a weekly total of $140. An allowance of that amount for a period of 387 weeks yields the sum of $54,180.
[389] In relation to care for the children, 14 hours per week at $20 an hour equates to a total of $280 to be apportioned as between five children, namely $56 each. In combination with their entitlement to $20 per week in respect of the provision of fish and pig, the relevant weekly amount for them is $76 per week.
[390] In respect of Ruby, $76 per week for 281 weeks (until she turned 18) yields $21,356.
[391] In respect of Fanny, $76 per week for 347 weeks (until her 18th birthday) yields $26,372.
[392] In respect of Emma, Fredricka and Rim, $76 a week for a period of 387 weeks to the present yields $29,412 each.
[393] In respect of Maryanne, $20 a week for a period of 137 weeks (until her 18th birthday) yields $2,740.
[394] In respect of Padaila Kris and Wanika Mooka, $20 a week each for 387 weeks yields $7,740 each.
[395] Applying the above discussed discount of 15 per cent for vicissitudes of life gives rise to total awards for past loss of the benefit of services as follows:
[396] The determination of the award for future loss of services should be generally consistent with the above approach, although consistently with the approach to future loss of income I will apply a discount of 25 per cent for the vicissitudes of life in respect of the awards for Elizabeth Stephen, Padaila Kris and Wanika Mooka, and 20 per cent in respect of the children.
[397] In respect of the fishing and house and maintenance services, the plaintiff submits they are likely to have continued until Gordon Kris reached the age of 70. However, for the reasons given in respect of the earlier discussed claims in this matter, I will adopt 65 years of age as a cut-off point, that is, a further 20 years.
[398] Allowing $140 per week for a period of 20 years (666 multiplier) yields $93,240 for Elizabeth Stephen. The dependent children will progressively come of age during the first four of that 20 years. The demands of the domestic services Gordon Kris provided (not including child care) were unlikely to diminish significantly as the children became less dependent. I will allow for only a slight diminution in demand and reduce the aforementioned sum of $93,240 by 7.5 per cent to $86,247. That should be reduced by 25 per cent for contingencies, giving rise to the sum of $64,685.25.
[399] In respect of Emma, $76 a week for a further 11 weeks yields $836.[170] That should be reduced by 20 per cent for contingencies, giving rise to the sum of $668.80.
[400] In respect of Fredricka, allowing $76 a week for three years (146 multiplier) yields $11,096. That should be reduced by 20 per cent for contingencies, giving rise to the sum of $8,876.80.
[401] In respect of Rim, allowing $76 per week for a period of four years (190 multiplier) yields $14,440. That should be reduced by 20 per cent for contingencies, giving rise to the sum of $11,552.
[402] In respect of Padaila Kris and Wanika Mooka, the evidence provides no assistance as to their age or likely longevity. Given the absence of such information and the knowledge that Gordon Kris was born in 1967, a conservative approach of allowing only a further five years is reasonable. Allowing $20 a week for five years (232 multiplier) yields $4,640 each. That should be reduced by 25 per cent for contingencies, giving rise to the sum of $3,480 each.
[403] An award for funeral expenses paid by Workcover in the amount of $5,065.50[171] is sought. There is no issue taken by the defendant in respect of the reasonableness of that amount.
[404] There should be an award of $5,065.50 for funeral expenses.
[405] There is no need to consider management fees because the award total exceeds $500,000.
[407] That amount is fair and reasonable but it exceeds the $500,000 limit, so there will be judgment for the plaintiff against the defendant in the sum of $500,000.
[408] It is necessary to direct an apportionment of that amount as between the various dependents.
[409] Subject to the deduction from that balance of any costs not recovered from the defendant, the balance shall be divided proportionately among the remaining dependents.
[410] The proportionate entitlements are calculated as follows:
Elizabeth: 100/641,172.99 x 340,924.85 = 53.17 per cent
Fredricka: 100/641,172.99 x 73,051.21 = 11.39 per cent
1. Judgment for the plaintiff (Elizabeth Stephen, for and on behalf of the estate and dependents of Gordon Kris, deceased) against the defendant in the sum of $500,000.
2. I direct pursuant to s 35(9) of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) that:
(a) $5,065.50 of the judgment sum is payable for funeral expenses;
(b) the balance of the judgment sum, after deduction from it of any costs not recovered from the defendant, shall be divided amongst the following persons in the following proportions:
[2] Civil Liability Act 2003 (Qld), s 50.
[5] Section 35(3) (emphasis added).
[6] Nicholson CJ observed in Lara v Marley [2003] FamCA 1393 at [38] that the practice has a spiritual or cultural significance that is not relevant in "western adoption".
[8] (1989) 13 FamLR 333, 334.
[9] McKenna v Avior Pty Ltd [1981] WAR 255.
[10] De Sales v Ingrilli [2002] HCA 52; (2002) 212 CLR 338, 347, 348.
[11] Public Trustee v Zoanetti [1945] HCA 26; (1945) 70 CLR 266, 278; Lincoln v Gravil [1954] HCA 24; (1954) 94 CLR 430, 441; McKenna v Avior Pty Ltd [1991] WAR 255.
[12] [2002] HCA 52; (2002) 212 CLR 338, 347.
[13] [1975] HCA 32; (1975) 132 CLR 642, 658.
[14] Discussed in Harold Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) 67, 68 ("Luntz on Damages").
[15] Ruby v Marsh [1975] HCA 32; (1975) 132 CLR 642, 658.
[16] See, eg, the observations of Deane, Gaudron and McHugh JJ in Malec v JC Hutton [1990] HCA 20; (1990) 169 CLR 638, 643.
[17] [2002] HCA 52; (2002) 212 CLR 338, 348.
[18] Ibid 256, 263, upholding the minority view of Gibbs J in Seymour v British Paints (Australia) Pty Ltd [1967] Qd R 227.
[20] Nguyen v Nguyen (1990) 169 CLR 245, 263, 265, 267, 268.
[21] (1990) 169 CLR 245, 265.
[22] Public Trustee v Zoanetti [1945] HCA 26; (1945) 70 CLR 266, 279; Horton v Byrne (1956) 30 ALJR 583, 585.
[23] (1990) 169 CLR 245, 266, 267 (citations omitted).
[24] See Schimke v Clements & Suncorp-Metway Insurance Ltd [2011] QSC 182 for an example in the setting of a husband and wife's farm in the Lockyer Valley of how a service performed by one of them was integral to their way of life.
[25] As was explained, for example, in the evidence of Robert Bagie: Ex 1, Page 17-24.
[26] Regan v Williamson [1976] 1 WLR 305, 309; Nguyen v Nguyen (1990) 169 CLR 245, 256, 263, 264.
[27] Luntz on Damages, 499, 500 (citations omitted).
[29] Defendant's Outline [117], [118].
[32] The sole calculations it provided in submissions were limited to some income calculations advanced in the light of improved median income levels disclosed by the 2011 Census.
[33] Discussed in Luntz on Damages [9.4.6], footnotes 259, 260.
[34] De Sales v Ingrilli [2002] HCA 52; (2002) 212 CLR 338, 366, 395.
[35] Ibid 367. See also Thornton v Lessbrook Pty Ltd [2010] QSC 308, [76]-[83].
[41] See Further Updated Statements of Loss and Damage.
[42] [2010] QSC 308, [143]-[147].
[46] (1988) 92 FLR 231 244, 245.
[49] Ex 4, Page 2.
[52] The example of Mimia Whap, who was a parks and gardens labourer at the time of the crash and is now earning over $80,000 a year truck driving in the mines, demonstrates significant increases in income for persons from remote communities are not fanciful.
[53] Ex 26, Tab 9; Ex 29, KN2, Page 9. These figures apparently indicate gross income although since July this year a gross weekly income of $313 would be below the tax-free threshold.
[54] Ex 4, Page 61.
[55] Ex 26, Page 91.
[56] Ibid 75 (Academic Advisement Report).
[59] Ex 4, Page 87.
[60] Ex 26, Page 89.
[66] Ex 26, Page 89.
[68] Ex 4, Page 61.
[69] See also evidence of Heather Van Dort.
[70] See, eg, Thornton v Lessbrook Pty Ltd [2010] QSC 308, [98]-[100].
[74] Ex 4 , Page 4.
[76] Ex 4, Page 10.
[79] Ex 4, Page 8.
[85] Ex 23; Further Updated Statement of Loss and Damage.
[86] See, eg, Acts Interpretation Act 1954 (Qld) s 14A.
[88] The Plaintiffs' Outline at [73.1] also indicate Bettina Bowie was traditionally adopted, but there appears to be no evidence to that effect.
[89] Ex 2, Page 14, [5].
[91] Ex 2, Page 5.
[93] Ex 26, Page 24, 25.
[94] Ex 2, Page 70.
[95] See also evidence of Heather Van Dort
[96] Ex 2, Page 7.
[100] Ex 24; Further Updated Statement of Loss and Damage.
[101] Ex 2, Page 16.
[104] [9.6.5]. See also Gammell v Wilson [1982] AC 27.
[105] Ex 5, Page 8.
[106] Ex 5, Page 2.
[108] Ex 5, Page 2.
[111] See also evidence of Heather Van Dort.
[119] Ex 26, p 169-466; Ex 27.
Emily Kepa, for and on behalf of the estate and dependants of Frank Billy, deceased & ors
Lessbrook Pty Ltd
(2002) 212 CLR 338
(1990) 169 CLR 245
(1989) 13 FamLR 333
(1975) 132 CLR 642
(1975) 10 SASR 579
(1988) 92 FLR 231
(1945) 70 CLR 266
(1954) 94 CLR 430
(1990) 169 CLR 638
(1977) 139 CLR 161
(1956) 30 ALJR 583