Lindsay
257As referred to above, the defendants submitted that Lindsay ought to receive no damages since his loss has been reduced to nil as a result of Mrs Rumble's act of applying for, and being granted, an order which had the effect of requiring her to be responsible for him, both on a day-to-day and a long-term basis. Against this, the plaintiffs submitted that, to borrow a term from Nguyen, there would be a "moral revulsion" against accepting the defendants' submissions that the generosity and charity of his grandmother should reduce any award in his favour to award to nominal damages.
258It is not possible, by reference to the evidence, to identify under which provision of the Family Law Act the order in respect of Lindsay was made, since the documents in evidence did not reveal what section was used. I have reviewed the Family Law Act and have been unable to identify any source of power for the making of the order other than the power to make a parenting order under s 65D of the Family Law Act
259As Lindsay's grandparent, Mrs Rumble had standing to apply for such an order pursuant to s 65C(ba) of the Family Law Act. The parenting order ceases to be in force when Lindsay turns 18 (s 65H(2)) or if an adoption order is made (s 65J). Parenting orders have the effect of prohibiting interference with the terms of the order: see, for example, s65M, s65N. The terms of the parenting order require Mrs Rumble to be responsible for Lindsay. However, the order, unlike an adoption order, does not have the effect of making her his parent.
260Accordingly, I do not consider that s 66C applies to impose on Mrs Rumble the legal obligation to maintain Lindsay although this is, in substance, what she had done since he moved in to her house after his mother's death. Young JA in Grosso v Deaton was considering the position of parents of a child and the effect of s 66C, which is distinguishable from the instant case where Mrs Rumble did not become Lindsay's parent although she was, and remains, in loco parentis.
261I requested assistance from the parties to identify cases from other jurisdictions that might bear on the question.
262The plaintiffs referred me to Turner v Owen (1984) Aust. Tort Rep. 80-667, a case in which a single mother died leaving three children. The deceased's mother and sister looked after the three children. The trial judge did not take into account the grandmother's services when assessing damages. The Full Court of the Supreme Court of Western Australia which dismissed the appeal, rejected this ground by reference to the principles in Griffiths v Kerkemeyer. Chief Justice Burt considered that Griffiths v Kerkemeyer required the court in assessing damages in a fatal accident claim to disregard gratuitous services on the ground that they were not rendered to relieve the tortfeasor.
263In my respectful view, this line of reasoning is inconsistent with Nguyen which distinguishes damages to be awarded to an injured plaintiff for gratuitous care (which are to be determined by reference to Griffiths v Kerkemeyer) from those awarded to claimants of the deceased in fatal accidents claims. In the latter category gratuitous assistance that reduces the loss, whether by remarriage or otherwise, is a relevant consideration in assessing damages in such cases.
264The defendants referred me to the following cases.
265In Fawns v Green [1972] WWR 272, a decision of Gregory J of the British Columbia Supreme Court, the deceased and her three-year old illegitimate daughter, lived with her parents. She was employed, as were her parents. She paid her parents for food and board. Three months after their daughter's death, the parents legally adopted the infant. Some two months later they left Victoria and went to live in Winnipeg. The claimant argued that she had lost the care, education and training that she might have expected from her natural mother and that she had gained nothing by the adoption because her grandfather conducted himself, effectively, as her father before the adoption. The defendants argued that the claimant now had a full-time mother (since Mrs Fawns had resigned from work on her daughter's death), whereas the deceased had not only worked but also had other interests that occupied her spare time. The defendants also submitted that the claimant's grandmother's life expectancy was such that the claimant would receive at least as much care and attention as she would have received from the deceased, until she became an adult.
266Justice Gregory accepted the defendant's submissions and concluded that the child had suffered no material benefit by reason of her mother's death after adoption. His Honour said at [27]:
"In my opinion the fact that an orphaned child has been adopted puts her in the same position as a widow who has remarried, only more so, because adoption is irreversible."
267The defendants also referred to Stonehouse v Gamble (1982) 44 BCLR 375, a decision of the British Columbia Court of Appeal. The trial was by jury. The relevant ground of appeal was that the trial judge had erred in instructing the jury to ignore the contributions made by the grandparents who had looked after the deceased's child and became her legal guardians. The Court was taken to Fawns v Green. Justice Anderson (with whom Hinkson and Macfarlane JJA agreed) said at [123]:
"Assuming the above cases [including Fawns v Green] were properly decided, about which I have reservations, I am clearly of the view that the principles enunciated in those cases relating to stepparents and adopting parents should not be extended to cases involving foster parents or grandparents."
268The appeal was dismissed, relevantly on the basis that the trial judge's direction to the jury was correct. Fawns v Green was distinguished in Stonehouse because the grandparents had not adopted the child; they had merely become her guardians.
269The defendants referred to Watson (Administrators of) v Willmott [1991] 1 QB 140. The infant plaintiff was travelling in a car with his parents when his mother was killed in an accident caused by the defendant's negligence. Three months later the plaintiff's father was admitted to a psychiatric hospital to be treated for a severe depressive illness caused by the loss of his wife and the plaintiff, aged three, went to live with his aunt and uncle. Four months after the accident the father committed suicide. The plaintiff remained with his aunt and uncle, who adopted him shortly before his fifth birthday. The parental rights relating to the plaintiff thereby became vested in the adoptive parents in accordance with s 8 of the Children Act 1975 and thereafter, by virtue of paragraph 3(1) of Schedule 1 to that Act, the plaintiff was to be treated as if he had been born a child of the adoptive parents. Justice Garland held that the adoption replaced the non-pecuniary dependency on the deceased mother and that there was, accordingly, no such loss after the date of adoption. However, damages were awarded in respect of the loss up to the date of adoption, notwithstanding that some of the care for that period had been provided by the persons who became the adoptive parents.
270Although the cases referred to above provide some support for there being a clear dividing line between adoption on the one hand and other lesser legal or moral obligations that might be fulfilled with respect to child claimants following fatal accidents, I do not consider that the existence of such a line is consistent either with the principles set out in Nguyen or the well-established preparedness to view legal marriage and de facto marriage as relevant factors. Although distinctions between cases can always be drawn, it must be remembered that it is s 4 of the Compensation to Relatives Act that governs the assessment of damages in fatal accident claims. It would seem to me inimical to the principles of statutory construction for words of such breadth to be constrained by glosses that import such formal distinctions.
271In my view, Lindsay's position, as a matter of substance, is not dissimilar from the position in which he would have been, had Mr Goddard remarried and his new wife taken on full responsibilities as step-mother to Lindsay. The difference is, as far as Lindsay is concerned, that his grandmother is acting as his mother, rather than his step-father's putative wife. Claims under the Compensation to Relatives Act are typically brought on the assumption that the family unit remains intact and is either supplemented, or not, as the case may be, by remarriage of the surviving spouse. In Lindsay's case Mrs Rumble removed him from his immediate family unit and gave him a secure legal position in her own, although she has not formally adopted him.
272Where a surviving spouse has remarried by the date of trial, it is open for damages to be assessed at nil, or a nominal award made, depending on the relative financial advantageousness of the second marriage: Willis v The Commonwealth [1946] HCA 22; 73 CLR 105. The relevance of a subsequent relationship does not depend on there being a legal marriage since de facto relationships are also relevant to the question whether the loss of material benefit has been, or will be, reduced.
273I do not discern any reason in principle to distinguish between remarriage, or a new de facto relationship on the one hand, and legal adoption or the arrangement in place under the Family Law Act that will apply until Lindsay is 18 on the other, for the purposes of Lindsay's claim. The words of the statute do not provide any warrant for viewing the prospects of remarriage as being in a special category although they are commonly distinguished from voluntary assistance given by others. If permanence were any indicator of relevance, one might observe that Mrs Rumble's commitment to Lindsay, as formalised by the Local Court, is unlikely to be less enduring than marriage or a de facto relationship.
274In my view, it is appropriate to make some allowance for Lindsay's loss prior to the making of the orders by the Local Court on 10 February 2006.
275In my view damages ought be assessed on the basis of 25 hours a week for the period of 8 weeks from the date of death to the date of the order, being $5,000.
276Had I rejected the defendants' argument about the effect of the Local Court orders I would have made allowance for 20 hours a week at $25 per hour for the past. I would have made a similar allowance for the future until Lindsay turns 18. The Government benefits to be received by Mrs Rumble that are referable to her care of him would need to be deducted from this figure.