CTHHCA

Lincoln v Gravil

[1954] HCA 24

High Court of Australia|1954-07-01|Before: Kitto JJ, Webb J, Gibson J

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Source facts

Court

High Court of Australia

Decision date

1954-07-01

Before

Kitto JJ, Webb J, Gibson J

Source

Original judgment source is linked above.

Judgment (47 paragraphs)

[1]

High Court of Australia Webb, Fullagar and Kitto JJ. Lincoln v Gravil [1954] HCA 24

[2]

ORDER Appeal allowed with costs; cross-appeal dismissed with costs. Judgment of the Supreme Court varied by increasing the amount ordered to be paid by the defendant to the plaintiff to £2,250. Direct that this amount be divided into the following shares, namely £2,000 for the benefit of the plaintiff, £150 for the benefit of Darryl Alvin Ball, and £100 for the benefit of Beverley Lenna Ball.

[3]

This is an appeal from a judgment of the Supreme Court of Tasmania (Gibson J.) awarding £1,000 damages to the appellant and her two children, the widow and step-children of one W. F. Lincoln, and apportioning £750 to the appellant. The award of damages was made in an action under the Fatal Accidents Act 1934 Tas. arising out of the death of the appellant's husband from injuries caused in a collision in a street in Hobart on 17th July 1951 between the respondent's motor car and the deceased's bicycle. Gibson J. found that the respondent was solely to blame for the collision. The ground of appeal is that the award of £750 damages to the appellant was inadequate. No question arises as to the damages awarded to the children. A cross-appeal, on the ground that the evidence for the appellant was circumstantial and that, assuming that the evidence for the respondent was rightly rejected by the trial judge, still there was a reasonable hypothesis consistent with the absence of responsibility of the respondent for the accident, was dismissed without reserving judgment. The evidence for the appellant was that there were three long scratches on the bitumen made by the deceased's bicycle as it was pushed or dragged along the street by the motor car. These scratches formed three straight lines of varying length, all parallel with the guttering on the deceased's correct side of the street and within five feet of the guttering. The rear wheel of the bicycle was dented as though struck from behind. The respondent, who was the only eye-witness, admitted that the deceased was riding along on his correct side of the street and within a few feet from the gutter; but said that, while there was still ample room for the motor car to pass the deceased, the bicycle was turned to the right across the path of the car when it was too late for the car to avoid hitting it. The respondent's expert evidence was that the bicycle was struck on the side and not behind on the rear wheel.

[8]

As to (2): In Baker v. Dalgleish Steam Shipping Co. [5] , Scrutton L.J. said: "The claim is a new right given by Lord Campbell's Act on new principles, not the transfer of any existing right of the dead man. The claimant is entitled to damages proportioned to the injury resulting to her from the death, and that injury must be pecuniary injury. She is not entitled to money compensation for mental suffering resulting from the death or for loss of the deceased's society. She is entitled to claim on the one hand any pecuniary benefit which it is reasonably probable she would have received if the deceased had remained alive: per Erle C.J. in Pym v. Great Northern Ry. Co. [6] . It is not necessary that she should have a legal right to have received that benefit from the deceased or should have actually received any such benefit before the death: Taff Vale Ry. Co. v. Jenkins [1] . It is enough that she had a reasonable expectation of pecuniary advantage in the future had the deceased survived, which pecuniary advantage may be a voluntary contribution from the deceased. On the other hand, as the question is what is her pecuniary loss by the death, any pecuniary advantage she has received from the death must be set off against her probable loss. This is clear if she receives such advantage as of legal right In my view the same principle applies to voluntary benefits conferred in consequence of the death. Just as in assessing the loss by the death the probability of voluntary contribution destroyed by the death of the contributor may be included to swell the claim, so the probability of voluntary contribution bestowed in consequence of the death may be used to reduce the claim by showing what loss the claimant has in fact sustained by the death. Less weight will be given to voluntary contributions than to those made under legal obligation, just because they are voluntary. Still less weight will be given to voluntary contributions in instalments, because they are obviously terminable; and still less weight if the contributor announces he will reduce his contribution by the amount of compensation obtained from a wrongdoer who causes the death. Greer J. would have had to take into account the extreme probability of the Admiralty not continuing a pension if compensation could be obtained from the wrongdoer. For it is difficult to believe that a public department would put upon the taxpayer a burden which should be discharged by the wrongdoer whose act caused the death. The appellants who should have supplied the evidence gave no evidence of any practice of the Admiralty not to consider compensation from the wrongdoer in assessing the pension" [2] .

[29]

The deceased died on 23rd July 1952, at the age of fifty years. He was in good health, and was employed as a tram driver by the Hobart City Council, in whose tramway service he had been for about thirty years. During the financial year which ended on 30th June before his death, his gross wages amounted in the aggregate to £694 7s. 1d. but deductions of income tax by the employer in accordance with the Income Tax and Social Services Contribution Assessment Act 1936-1952 reduced this amount to £607 7s. 7d. This latter sum represented an average of £11 13s. 0d. per week. The learned judge assumed in the plaintiff's favour that for the future the deceased's net wages, i.e. after deduction of tax, could have been £12 10s. 0d. per week, making this assumption because the deceased and the plaintiff did not marry until 14th February 1952 and consequently it was only from that date that the deceased's wages would have included any element attributable to the fact that his marriage brought him two dependent step-children. Then his Honour assumed (and it was not disputed before us) that the retiring age in the deceased's employment was sixty-five years; and he ascertained from mortality tables that the deceased had an expectation of life beyond that age. The plaintiff, who was only forty-four years of age at the death of the deceased, had a greater expectation of life than he, and the learned judge, recognizing the necessity of allowing for the incalculable contingencies of life, took fifteen years as the period over which the plaintiff might have expected to receive financial benefits from the deceased if he had lived. The selection of fifteen years as an appropriate period is no doubt to be accounted for on the ground that the earning power of the deceased might well have continued for a considerable period after his retirement from the tramways. But his Honour assumed (and he acknowledged that the assumption was arbitrary) that the extent of the plaintiff's financial loss over the period, covering her maintenance and additional gifts, was something of the order of two pounds a week above the current rate of a widow's pension. The plaintiff had given evidence that she was receiving a widow's pension of £7 5s. 0d. a fortnight; so that the learned judge's assumption was that the plaintiff lost by her husband's death £5 12s. 6d. a week for fifteen years. Stating that as far as he could ascertain the widow's pension would not be affected by the damages recovered, his Honour proceeded on the view that the plaintiff could recover only for a loss of two pounds per week; and having capitalized this sum and made what seemed to him to be appropriate deductions (which he did not specify) on account of the contingencies and uncertainties of the case, he reached the figure of £750 as the amount of damages which the plaintiff ought to recover for her own benefit.

[34]

(ii) There was not shown to be any likelihood of the deceased's obtaining further advancement in the tramway's service or otherwise improving his position, and no ground appears for disagreeing with the figure of £12 10s. 0d. which the learned trial judge took as the probable amount of the deceased's average net weekly wages. The evidence which his Honour accepted established that the deceased was accustomed to give the whole of his wages to the plaintiff, and that she returned to him two pounds or £2 10s. 0d. a week for himself. The practice would no doubt have continued if the deceased had lived; and out of the remaining ten pounds or £10 10s. 0d. the plaintiff would have had to pay £1 6s. 0d. for rent, the domestic expenses for the family consisting of the deceased, her two dependent children and herself, and clothes for the children and herself. (We leave out of account two older children who were earning, and contributed to the household purse amounts which his Honour thought would not show any profit to the plaintiff, but which presumably would cover what was expended for their benefit.) She might have had to buy clothes for the deceased, but he had not required any new clothes during the five months of the marriage; and, as against that, the learned judge thought that the deceased might have contributed something towards major items of expense from the money handed back to him out of the wages. The plaintiff was receiving child endowment payments, and his Honour thought one pound per week was the amount which in addition to the endowment, would be spent for the benefit of each of the dependent children while under sixteen. After that age the assumption apparently was that the children would go to work and support themselves. After that it might well be that the deceased's wages would in effect be shared equally by the spouses, so that the plaintiff would receive benefits to the extent of £6 5s. 0d. a week. But when all contingencies are borne in mind it would not be possible to say that £5 12s. 6d. a week as an average is so low a figure to take that if there were no other point in the case an award of damages founded upon that figure ought to be interfered with on appeal.

[35]

(iii) The question whether, in assessing the net loss resulting to a relative from the death of the deceased in a case under Lord Campbell's Act, allowance should be made, by way of deduction from the damages which would be otherwise awarded, in respect of a pension which the relative may receive in consequence of the death of the deceased, has been adverted to in a number of cases. It has been held without exception, so far as we are aware, that unless such a deduction is excluded by special statutory provision there must be taken into account against the items of loss occasioned by the death any right to a pension, and any reasonable expectation (as distinguished from a mere speculative possibility) of a pension, which has arisen in consequence of the death: Baker v. Dalgleish Steam Shipping Co. [1] ; Carling v. Lebbon [2] ; Butler v. McLachlan [3] ; Johnson v. Hill [4] ; Lory v. Great Western Railway Co. [5] ; Salvemini v. Australian Barley Board [6] ; Bishop v. Cunard White Star Co. Ltd. [7] ; Smith v. British European Airways Corporation [8] . The plaintiff, however, based an argument to the contrary upon the decision of the Court of Appeal in Payne v. Railway Executive [9] , by which it was held that the probability of a pension being paid under the provisions of an Order in Council to an injured sailor in the Royal Navy could not be taken into consideration in reduction of the damages he was entitled to recover in an action under the common law against a defendant responsible for the negligence which caused the injury. Counsel recognized that the judgments delivered in that case distinguished the decisions under Lord Campbell's Act, while accepting them as correct; but he submitted that the distinction taken was ill-founded, and the reasoning which led the Court to exclude pensions from consideration in assessing damages at common law should equally lead to their being excluded in the case of damages under Lord Campbell's Act. The validity of the distinction upon which the Court of Appeal insisted, however, is a necessary consequence of defining the damages recoverable under Lord Campbell's Act, by reason of the language of the Act itself, not in terms appropriate to the definition of damages recoverable for personal injury at common law, but as being compensation to the relatives of the deceased equivalent to the pecuniary benefits which they might have reasonably expected from the continuance of his life: Bradburn v. Great Western Railway Co. [1] ; see also per Fullagar J. in Attorney-General for New South Wales v. Perpetual Trustee Co. (Ltd.) [2] . The making of a deduction in respect of a pension which will either certainly or probably be paid to the relative whose compensation is being assessed is necessitated by the principles of assessment expounded by the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd. [3] , and by this Court in Public Trustee v. Zoanetti [4] , and Willis v. The Commonwealth [5] . In some jurisdictions special provision to the contrary has been made by amending legislation, e.g. by s. 40 of the Widows' Orphans' and Old Age Contributory Pensions Act 1936 Imp. and s. 3 (3) of the Compensation to Relatives Act 1897-1953 N.S.W.; but in Tasmania no such provision has been made. Accordingly the learned trial judge's opinion was correct, that it was necessary to allow in his assessment of the plaintiff's damages for any pension which she would be likely to receive as the widow of the deceased.

[36]

(iv) This leads to the question whether his Honour was right in assuming, as he appears to have done, that the plaintiff was likely for the future to receive a pension of £7 5s. 0d. a fortnight, and that this would not be affected by the compensation which he proposed to allow her. The question calls for a consideration of the provisions of Pt. IV of the Social Services Consolidation Act 1947-1953 Cth.. The plaintiff, as matters stood at the time of the trial, was qualified to receive a pension as a class A widow, that is, a widow having the custody, care and control of one or more children (ss. 60 (1) (a), 59); and the pension she said she was receiving, which came to £188 10s. 0d. per annum, was the maximum pension payable to such a widow before the amendment of s. 63 (1) (a) by the Act No. 51 of 1953. That Act, however, increased the amount to £195 per annum or £7 10s. 0d. a fortnight. The plaintiff's property at the death of the deceased consisted of a sum of £280 in the bank, a car which was subsequently sold for £200, £50 to which she was entitled as a death benefit from a provident fund, and her interest in the deceased's estate worth £638. The total was £1,168. This was not enough to disqualify her from receiving a widow's pension, for s. 62 (1) (d) fixes £1,500 as the value of property which a widow may own without being disentitled to a pension. The margin, however, was only £332. There was no evidence that the value of the plaintiff's property had declined since the death of the deceased, so that any damages recovered in excess of £332 would involve the loss of her pension unless some saving provision in the Act should obviate this result. Counsel for the defendant pointed in this regard to sub-pars. (i), (ii) and (iv) of s. 65 (1) (a), by which it is provided that in the computation of the value of property for the purposes of Pt. IV there shall be disregarded (i) the value of all property which is owned by the widow and is her permanent home, (ii) the value of any furniture and personal effects, and (iv) the capital value of any annuity. The plaintiff, counsel said, may lay out any damages she receives in the purchase either of a permanent home, furniture and personal effects, or of an annuity, or of both, and thus avoid losing her pension. It must be borne in mind that if she were to buy an annuity, any excess of the annuity payments over £104 per annum would mean a corresponding reduction of the pension: s. 63 (2) (a). The Director-General, it may be added, is empowered to direct, for any special reason in any particular case, that the value of the whole or any part of the property of a widow shall be disregarded (s. 65 (1) (c)); but this provision should be omitted from consideration in the absence of any evidence to suggest a likelihood of its being acted upon in relation to the plaintiff.

[42]

The figure which we should think reasonable if there were no pension to be considered would be £3,000. This we arrive at by taking ten years' purchase at a round figure of £300 a year, which is slightly less than six pounds per week. To take as a multiplier a number of years' purchase is a method which was approved in a frequently-quoted passage in Lord Wright's judgment in Davies v. Powell Duffryn Associated Collieries Ltd. [1] . In this connection, however, some pertinent observations were made by Black L.J. in Brennan v. Gale [2] . He said: "Lord Wright speaks as if the annual figure is converted into a lump sum by taking a number of years' purchase, and this lump sum is subsequently reduced to allow for all the various uncertainties and matters of speculation and doubt. In practice, however, I think it is much more usual after settling on the basic annual figure to apply to it as a multiplier such a number of years' purchase as will be thought to take into account all the doubts and uncertainties which point to a reduction in the sum to be awarded. What this appropriate multiplier may be in any individual case must depend on the particular circumstances of that case. But there is no real yardstick by which the number of years' purchase can be measured. One has to take into account the probable duration of the earning life of the deceased and also the probable duration of life of the widow, the possibilities of increased earnings on the one hand and of disablement or unemployment on the other, and all the other probabilities and chances which should be taken into consideration in endeavouring to fix a fair compensation for the pecuniary loss. The amounts which have been allowed in reported cases follow no rigid rule. In Davies v. Powell Duffryn Associated Collieries Ltd. [3] , dealing with the case of a man of forty-two years of age who left a widow and three dependent children, the House of Lords increased an amount of £250 fixed by the trial judge to £750. Lord Wright speaks of the £250 as "based on something like three and a half years' purchase of the basic figure". The £750 may therefore be regarded as based on ten and a half years' purchase. In the more recent case of Johnson v. Hill [4] , where the deceased was thirty-nine years of age and one of the questions in issue was whether the prospect of his dependants receiving a pension from the Crown by reason of his death should be taken into consideration, the English Court of Appeal, in the course of their judgment, first fixed an amount which they considered would have been a fair and reasonable sum to award if no allowance fell to be made in respect of what might be received as pension. On the facts set out in the report this sum appears to have amounted to about sixteen years' purchase of the value of the pecuniary benefit which the dependants would have received from the deceased in the course of a year. I merely refer to these cases as instances of the number of years' purchase which have commended themselves to appellate tribunals. The number adopted by individual judges and juries in particular cases will be found to vary greatly; juries have, no doubt, tended on the whole to be more liberal than judges trying cases without a jury. But I think the figure of sixteen years' purchase, which appears to have been the number fixed by the Court of Appeal in Johnson v. Hill [1] will approach the upper limit of any calculation of damages which has received the sanction of an appellate court" [2] .

Lincoln v Gravil - [1954] HCA 24 - HCA 1954 case summary — Zoe