HEARD : 14, 15, 16, 17 SEPTEMBER 1998, 5 MARCH 1999, 23 MARCH 1999, 16 JUNE 1999

BETWEEN : NATRIECE LEANNE WAKEFIELD as Administratrix of the Estate of the late KENNETH ERIC WAKEFIELD on behalf of NATRIECE LEANNE WAKEFIELD, SHELDON KENNETH WAKEFIELD, ASHLEIGH NATRIECE WAKEFIELD and DANIKA LEANNE WAKEFIELD

Fatal Accidents Act - Claim by widow and three children - Decided on own facts.

Total award to widow (plaintiff) and children $430,804

Biddulph v Lenegan, FCt SCt of WA; Library No 990076; 19 February 1999

Black v MVIT [1986] WAR 32

Dislieff v Connell, unreported; DCt of WA; Library No D970227; 30 July 1997

Frichot v Zalmstra, unreported; DCt of WA; Library No D970158; 15 May 1997

Jeffries v Fisher [1985] WAR 250

Knight v Anderson FCt SCt of WA; Library No 970195; 1 May 1997

SGIC v Hitchcock, unreported; FCt of SCt of WA; Library No 970089; 11 March 1997

Wellstead v Forster, unreported; DCt of WA; Library No 4861; 12 April 1996

Whitfield v McPherson (1995) 21 MVR 18

Cook v Cook (1986) 162 CLR 377

Downs Irrigation Co-operative Association Ltd v The National Bank of Australasia Ltd [1983] 1 Qd R 130

East v Breen [1975] VicRp 2; [1975] VR 19

Gala v Preston [1991] HCA 18; (1991) 172 CLR 243

Guidera v Government Insurance Office of New South Wales (1990) A Tort Rep 81-040

Gwydir v Peck [1983] 1 Qd R 351

Harris v Empress Motors [1984] 1 WLR 212

Howard v Hamilton (1996) 16 WAR 292

Insurance Commission v Joyce [1948] HCA 17; (1948) 77 CLR 39

Jeffries v Fisher [1985] WAR 259

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Kickett v SGIC, unreported; FCt SCt of WA; Library No 970505; 3 October 1997

Knight v Anderson (1997) 17 WAR 85

Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

Malouf v Malouf, unreported; DCt of WA; Library No D980119; 14 May 1998

McKenna v Avior Pty Ltd [1981] WAR 255

Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 69 ALJR 118

Mickelberg v Director Perth Mint [1986] WAR 365

Nguyen v Nguyen (1990) 165 CLR 245

Nguyen v Nguyen [1990] HCA 9; (1990) 91 ALR 161

Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370

Robertson v Lestrange [1985] 1 All ER 950

Roggenkamp v Bennett [1950] HCA 23; (1950) 80 CLR 292

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

Spargo v Haden Engineering Pty Ltd [1993] SASC 3793; (1993) 60 SASR 39

The Insurance Commission v Joyce [1948] HCA 17; (1948) 77 CLR 39

William v Commissioner for Road Transport and Tramways [1933] HCA 33; (1933) 50 CLR 258

Woodward v Porteous [1971] Tas SR 386

1 VIOL DCJ: The plaintiff is the administratrix of the estate of her late husband, Kenneth Eric Wakefield ("the deceased"), who died on 3 February 1995 in a motor vehicle accident at Mandurah ("the accident").

2 The plaintiff has brought an action against the defendant pursuant to s6 of the Fatal Accidents Act 1959 ("the Act") on behalf of herself and three children of the marriage, Sheldon Kenneth Wakefield born 20 June 1989, Ashleigh Natriece Wakefield born 14 July 1990 and Danika Leanne Wakefield born 25 March 1994. The plaintiff alleges that she and the three children were solely dependent upon the deceased for their maintenance, welfare, education and advancement in life.

3 It is alleged by the plaintiff that the deceased, who was a passenger in a motor vehicle being driven by the defendant towards the Serpentine River Bridge, Pinjarra Road in Mandurah, died in the accident as a result of the negligent driving of the defendant.

4 As a result of such negligence, the plaintiff says, she and the children "have been deprived of the support of the deceased from the date of his death and continuing".

5 The defendant denies that he owed a duty of care as alleged by the plaintiff in paragraph 6 of the statement of claim to the deceased, admits that his driving was negligent as alleged in paragraph 6 of the statement of claim, but says that the reason for his negligence, and the fact that he did not owe a duty of care to the deceased was that when he drove the vehicle he was under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle. It is said that the deceased travelled as a passenger in the vehicle while not wearing a seat belt after he had been drinking and in the defendant's company prior to the accident and was cognisant of the defendant's condition and consented to the defendant's manner of driving. The defendant says, in particular, that as a result of these matters, (a) the defendant was not in breach of a duty of care to the deceased since he owed no greater duty of care than could be expected of an intoxicated driver; (b) in the premises the deceased voluntarily accepted the risk of accident and injury; (c) alternatively, the deceased was guilty of contributory negligence in riding as a passenger in the vehicle.

6 Alternatively and further, the defendant has pleaded that the deceased failed to wear the seat belt provided to him, the omission of which materially contributed to his injuries to such a degree that any damages awarded should be reduced. In his opening, the plaintiff's counsel admitted on behalf of the plaintiff, that the deceased was not wearing a seat belt at the time of the accident.

7 As to the plaintiff's claim for damages under the Act the defendant does not admit such a claim and puts the plaintiff to proof of the various allegations relied on by the plaintiff.

8 Attached to the amended papers for the judge are two documents, both filed in the Court on 19 September 1997. The first is entitled "Plaintiff's Loss of Financial Support", and the second is entitled "Details of Plaintiff's Yearly Expenses".

9 The matter was heard initially on 14, 15, 16 and 17 September 1998. At the conclusion of the hearing I required counsel for the plaintiff to provide me with detailed submissions as to the plaintiff's claim with a reference to the evidence, and each part of the evidence, which he would say establishes a claim on the part of the plaintiff for damages and the extent of such damages.

10 Written submissions dated 19 October 1998 were received by me and the events followed which are outlined in my Judgment granting the plaintiff leave to re-open her case, such Judgment being delivered on 23 March 1999. Leave was granted to the plaintiff to re-open her case and, inter alia, to call a further witness, Mr Thumbwood, on her behalf. The receiving of Mr Thumbwood's evidence and further submissions from counsel took place on 15 June 1999.

11 In the course of the hearing it became clear that an issue which was being raised by the defendant, although not specifically pleaded in the defence, was as to the living circumstances of the plaintiff since 1997 - the allegation being made by the defendant was that the plaintiff was living on a de facto basis with Mr Thumbwood from that time and continuing. The same allegation was persisted with when the matter was resumed on 15 June 1999. This particular aspect of the matter raised some questions of credibility as did some other aspects of the evidence of some of the witnesses.

12 Alan James Williams is a senior constable attached to the Forensic Branch. He attended the scene of the accident in February 1995 and prepared a plan, Exhibit B. Photographs of the scene and the vehicle involved were taken at the behest of Senior Constable Jamie Dean Langley from the Mandurah Police Station. The photographs became Exhibits C1-7.

13 The evidence of the above two witnesses, the plan and photographs show that the accident took place as the defendant's vehicle was travelling in a south-east direction on the Pinjarra Road and travelling towards Pinjarra. There are two lanes proceeding in a south-east direction with a dotted dividing line and a similar road going in a north-west direction. There was a median strip between the lanes with gravel and shrubs. The edge of the south-east bound lane was made of gravel with a culvert towards a path and some shrubs. The vehicle struck a safety fence protruding in a north-westerly direction from the middle of the bridge. Photograph C4 shows such protruding fence and photograph C5 shows the defendant's vehicle effectively impaled in the edge of that protruding safety fence. The accident therefore happened within 50 metres of the commencement of the bridge itself. The plan shows that there is a single tyre mark going off the bitumen into the gravel on the left-hand side at a point some 165 metres north-west of the rear of the vehicle where it ended up after the accident. The tyre mark is shown to continue on the gravel until there is a guide post shown to have been struck approximately 90 metres from the accident scene. There is then a gravel verge which is washed away and a broken guide post from where there are duel tyre marks along the gravel for a certain distance. The tyre marks then proceed for a distance on the gravel and then back onto the bitumen in a curve to the position where the vehicle struck the guard railing. The opinion of Constable Williams was that after the vehicle went into the wash-away the vehicle started to rotate and proceeded in a right-hand direction. Photo C1 shows the commencement of the single tyre mark off the road some 185 metres from the accident scene. C2 shows the wash out with the two tracks going across to the right-hand side from that wash-out area. C3 shows the vehicle effectively sliding across the road towards the impact position - there are in fact four tyre marks across the road. C5 shows the vehicle embedded in the safety fence as previously described.

14 Kim Madeline Tomlinson was working as a skimpy barmaid for Raunchy Promotions at the Boat House Tavern when the deceased and his friends were drinking there. She described them as "a group of very annoying men". They were being rude to Miss Tomlinson because she would not take her top off. One of the men was rude, swore a lot and harassed her. That person had a black beard and was shorter than a taller person who was nice to her. She did not see them drive off.

15 Christine Kaye Walsh lives in Halls Head and is a florist. She owned the florist next to the Boat House Tavern where the deceased and the defendant bought the flowers. She said those two men were loud and noisy and boisterous The deceased and the defendant collected the flowers at 6.00 o'clock; at that time they were behaving in the same manner as before.

16 Toni Terese Maisey lives in Mandurah. She was driving the "bongo" van. The defendant's car came up to the rear of the van on several occasions "very close" - she was not worried because they were friends of her husband and they were having a bit of fun. The vehicle passed them and weaved twice before the lights, overtaking other vehicles.

17 Rosemary June Freeman is a service station franchisee who was driving along Pinjarra Road and was passed by the defendant's vehicle. It came up close to her, passed her, and pulled back into the slip lane to turn left into Rio Grande Street. By her description The defendant's vehicle obviously pulled out and passed her and then went in front of her in an unsafe manner.

18 Mr Darren Peter Raines was driving towards Mandurah (ie, in the opposite direction to the defendant) when he saw the defendant's vehicle coming across the road at a 45° angle just before it hit the bridge.

19 Miss Fiona Louise Huxley is a waitress and lives in Mandurah. She accepted a lift in the vehicle driven by the defendant. She travelled in the car for approximately a kilometre. She thought the defendant's driving was "perfectly fine". In cross-examination she thought the speed was the same as the other vehicles on the road. The passengers were in high spirits.

20 The defendant, Larry Peter Tilbee, is a 33-year-old concreter.

21 He told me that on the day of the accident arrangements had been made for a group of friends to meet at the Silver Sands Hotel in Mandurah to have a few drinks for the deceased's birthday, which was on 1 February 1995. Most of them were involved in the building industry. He was with Paul Rimsa; he finished work between 1.00 and 2.00 pm and went to the bank and then to the Silver Sands Hotel. He was driving his Ford F100 utility. They stayed at the Silver Sands for an hour or so and had a couple of (full-strength) beers there. He thought they were not drinking in a round but individually. He thought the deceased had the same amount to drink. They decided to go to the Brighton Hotel where there were "raunchies", ie, topless waitresses. He had approximately one drink - the raunchy girls were not there. They decided to go across the road to the Boat House Tavern, where there were also topless waitresses, arriving about 4.00 or 5.00 o'clock. He and the deceased both went to the florist next door to buy some flowers to take home to their respective wives. He had couple more cans. At 6.00 pm he and the deceased went out, picked up the flowers, put them in the utility, went back to the hotel - he thought he left there about 7.00 o'clock. He recalled something about a game called "heads" involving one of the barmaids.

22 He left the hotel to go to his house in Greenfields, which is east of the town. He felt that he had had about eight cans of beer and a squash. Three of them were in the front seat, ie, himself as driver, Paul Rimsa on the left-hand side and the deceased in the middle. None of them were wearing a seat belt. The seat belts for the driver and the passenger on the left-hand side were operative, but the car had just been repaired around the seat and the seat belt for the middle person was not operative. It could have been used if the person had leant down and pushed it up through the seat.

23 His house in Greenfields was accessed by a by-pass road and was about two to three kilometres from the Boat House Tavern. They reached some red lights at the commencement of The Forum Shopping Centre and came up behind a "bongo van". They thought it was being driven by an auto electrician from Mandurah known to them by the name of "Russell". They drove up behind the van a couple of times to give the driver "a bit of a razz", ie, to have a bit of fun. He said he felt he had a normal demeanour; he was in a good mood and he had a few drinks. They were on their way to another hotel, either at Ravenswood or the Premier Hotel, which was south-east towards Pinjarra. They went around the "bongo van" and thereafter he went home for about 20 minutes to half an hour, gave his wife the flowers, saw his children and left. They had nothing to drink there.

24 He commenced driving again with the passengers in the same positions. On the way they gave a girl a lift, making four people in the front seat. He could not remember whether she was sitting on the seat or on somebody's knee. They dropped her off on the way and then proceeded along the Pinjarra Road. He said they were just cruising along, not speeding. They were talking to each other and making plans to go out crabbing in the morning to get some crabs for a party at the deceased's the following night. The road was in a 90 kph zone - he could not recall how fast he was travelling. He looked at the deceased, talking about the crabbing trip, and suddenly went into the gravel on the left-hand side, hit a white post, went through the wash-out and the ute "sort of bounced". He put the brakes on, the car skidded across sideways and then hit the bridge. He lost control of the vehicle when the wheels went into the drop-away on the left-hand side. He confirmed that the plan, Exhibit B, correctly showed the tyre marks of the vehicle.

25 He had a blood alcohol reading calculated at the time of the event as .123 per cent.

26 Ultimately he pleaded guilty to dangerous driving causing death (four people were killed in the accident including the deceased) and was sentenced to two years imprisonment on each count concurrent, with eligibility for parole. In cross-examination he confirmed that he normally drank on the weekends but not much during the week. On the weekends he could drink two to 20 cans, depending on what was happening.

27 Dr Karin Margolis is a medical practitioner and practises as a forensic pathologist at the Forensic Medicine Centre in Perth. She was aware of the blood alcohol reading of the defendant. Having been advised of the weight of the defendant at the time of the accident that made no difference to her findings. She prepared a report dated 25 July 1996, Exhibit 7. She was not able to be specific about the effect of alcohol on the defendant, however, she felt it was most likely that he would have been affected to at least some degree by alcohol. She said, "At this level of alcohol, most people, particularly those who are not regular users of alcohol, would not be able to safely drive a motor vehicle". She felt that the effect of alcohol on the defendant may have manifested itself in him being less inhibited and perhaps more boisterous.

28 In cross-examination Dr Margolis was advised that the deceased had had a blood alcohol level of 0.125 per cent at the time of the accident. She felt that such a person "may not be able to see that the driver is unable to drive safely". He would have had problems with his input of information and as a result to have difficulty in being able "to recognise that somebody is affected by alcohol and that they could be incapable of driving. She agreed that intoxication is a notoriously unpredictable phenomenon and that other factors may affect the extent to which a person may be affected by alcohol, including the consumption of food. She felt that the deceased, with a blood alcohol level as described, may not have been able to make rational decisions about what he was doing, ie, to think about it rationally. This was of course, subject to the variables that she spoke about. In general, she said, "Anything above what is regarded as the legal limit for driving, does impair your judgment and so that would be regarded as impaired judgment at that level".

29 The plaintiff married the deceased on 1 April 1989. The child Sheldon was born on 20 June 1989.

30 The plaintiff left school at 14 and became pregnant while she was working as a pharmacist's assistant. The deceased apparently felt she should stop work and remain home whilst the children were young. The plaintiff described the deceased as very supportive and excellent with the family and with the children. The house at 15 Tacoma Loop in Mandurah was built through the Western Australian Housing Centre with the deceased doing a considerable amount of work on the house. They were still doing improvements on the house when the deceased died. The plaintiff described the considerable amount of work in various areas done on the house by the deceased. The plaintiff and the deceased laid the "roll-on" lawn and planted shrubs and other plants. The deceased maintained their motor vehicles.

31 After the deceased died, various friends assisted with the mowing of lawns and weeding. The plaintiff paid for the maintenance of her motor vehicle. The plaintiff described the deceased's work history in the following terms:

"We - Ken and I got married and then he was working as a brickie's labourer at first and then we - after I had Sheldon we moved to Jerramungup and he worked on the Jerramungup Shire and my waters broke 5 to 7 weeks before I had Ashleigh so I could no longer stay in Jerramungup. I had to go to King Edward Hospital for 3 weeks. She was 7 weeks premature so he couldn't work down in Jerramungup any more. He tried looking for work around Mandurah again and then found work at a limestone quarry in Wanneroo and then we stayed there for a while but the gentleman who was running the show wasn't paying so we thought we would to back to Mandurah and start, you know, just - we were looking for work. It was the depression at the time so there wasn't much work around. We went back to Mandurah and Ken found work as a plasterer's labourer and then plastered with - started off as a plasterer labourer with Russell Hull at Mandurah Plasterers and Russell showed him the tools, how to - instead of just being a labourer, Ken was willing to learn. He wanted to learn and Russell was willing to teach him so Russell showed him how to put the mud on the walls, the sand finish, and then we went out on our own. Russell hurt his back, I think, in a horse accident, a horse riding accident, and so Ken said that we would give it a go so, yes, we gave our own business a go and it was good because if Ken was short of work he could ring up Russell because Russell had plenty, and vice versa. I mean, Russell was really good that way if anyone was stuck. We worked for Perception Homes and Harry Kirby Homes and we still had our own business when Ken passed away in the car accident."

32 Ashley was born on 14 July 1990 and Danika was born on 25 March 1994.

33 The plaintiff assisted to some limited degree in the deceased's business organising the supply of sand and payment of cheques etc. The plaintiff said that she decided to move to Kalgoorlie because she needed time to start a new life for the children; also she had the opportunity of working for Liquorland by way of a transfer in Kalgoorlie. She was in no mental state to continue to live in Mandurah. The plaintiff was on a pension for a while after the accident and found it necessary to get a job. She worked at the Silver Sands Tavern in Mandurah and worked washing air bags sent down from mine sites in the north-west. She also worked at the Halls Head Tavern and Liquorland. She also worked at night at a night club in Mandurah. She in fact only worked there for five nights. She worked at Liquorland Drive-Through Bottle Shop in Kalgoorlie and then obtained a job at Woolworths Liquor Store. She was there in September 1998. She wore a ring on her wedding finger to put people off asking her out and making comments to her. She had men stay at the house in Mandurah but had no man living with her there.

34 She is friendly with a woman by the name of Karen Doulis who moved into the Mandurah house with her. Ms Doulis has been married twice. Her first husband was Steven Thumbwood. After divorcing him she married a friend of the plaintiff's known as "Digger", ie, Michael Deverall. She has been divorced from him and is now living Mandurah. Ms Doulis and Mr Thumbwood had one child by the name of Wade. The child Wade, and Sheldon, ie, the plaintiff's child, were good friends. Wade would occasionally stay at the plaintiff's house in Mandurah.

35 Mr Thumbwood was working up north and would come to the house to pick his son up.

36 The plaintiff moved to Kalgoorlie in 1997, ie to Hopkins Street. She said she did not move there because Mr Thumbwood was there. She and Mr Thumbwood had spoken in Mandurah about moving to Kalgoorlie and buying a house together.

37 Initially when they went to Kalgoorlie they lived in a rented house in Hopkins Street. In that house there were the plaintiff, Mr Thumbwood, two adults by the name of "Sid" and "Jodie", and the plaintiff's three children.

38 The plaintiff and Mr Thumbwood purchased the house in 97 Wilson Street Kalgoorlie as joint tenants - they did not have the advice of a solicitor but a mortgage broker. The plaintiff said that she was not aware of the significance of buying a house as joint tenants until several days before the hearing commenced. The plaintiff then gave evidence as to Exhibit D headed "Comparison of Pre-1995 and 1995 Expenses per Annum". The figures were worked out between the plaintiff, an accountant and the plaintiff's previous solicitor, presumably in 1995. The figures were described by the plaintiff's counsel as figures "giving an indication of what it used to cost the family to live". The document, I was told, was not being referred to to show what the current position is. The plaintiff explained that the column headed "Previous" were the costs incurred by the family before the death of the deceased, and the column headed "Present" were the costs incurred by the family in 1995 but after the death of the deceased. In relation to the mortgage the previous figure was $11,440 per annum and the present figure was "Nil". The plaintiff explained that after the death of the deceased she received an insurance pay out which discharged the mortgage on the house in Mandurah. The plaintiff had some difficulty explaining some of the figures, they having been prepared by the accountant. The plaintiff explained that she still received a pension but I was unable to ascertain the exact amount thereof.

39 The plaintiff then referred to the document headed "Details of Plaintiff's Yearly Expenses" filed on 19 September 1997 and annexed to the pleadings. This document became Exhibit E. The transcript evidences the difficulties as to this document; the plaintiff explained some of the figures in the document and noted that the amount, for example, of $2,000 for dental expenses for Sheldon was not a yearly amount as the document suggested. The same situation applied with the $2,000 noted in relation to Danika. According to the plaintiff's counsel, the figures for school fees were going to be relied on to demonstrate "the possible, probable costs of educating the children if Mr Wakefield had not died". The figures relating to the schooling appear to represent figures which would have arisen had the plaintiff and her late husband continued to live in Mandurah. The plaintiff felt that out of every $100 brought into the family the deceased spent about 10 per cent on himself personally. He also would have personally consumed about 10 to 20 per cent of food and other consumables.

40 The plaintiff told me that Mr Thumbwood lives in the games room at the back of the house; such room has a TV, video cabinet, lounge suite and bed. She and Mr Thumbwood both pay the expenses of living in the house. The plaintiff said she "probably" paid more towards the food because she had three children.

41 The plaintiff's counsel attempted to obtain details of the financial arrangements from the plaintiff. Although I had some difficulty understanding it, the position appears to be this: they pay phone calls according to an itemised account, each pays for their own phone calls; the electricity bills and local government rates are halved and each pays one half. The house is being purchased through a housing loan account and mortgage payments are taken out of what the plaintiff described as "Steve's bank account". When she gave evidence the plaintiff was receiving rent from her house in Mandurah which was paid into a Commonwealth Bank Account in Mandurah and she paid out of that account the sum of $260 per fortnight to Mr Thumbwood as her portion of the mortgage payments. She said that her house in Mandurah was for sale and with the money she intended to put it into the house in Kalgoorlie so that her share would be "paid for virtually".

42 The house in Kalgoorlie cost $178,000. She has made a Will pursuant to which the house in Mandurah was to go to the three children.

43 It was proposed by the plaintiff and her husband that they were going to pay between $5,000 to $10,000 towards their daughters' weddings.

44 The plaintiff agreed that she and her husband owned the house in Mandurah as joint tenants, as was the house in Kalgoorlie with Mr Thumbwood. She was not "aware of " the agent in Kalgoorlie explaining the difference between joint tenants and tenants in common to her. The plaintiff admitted that she did not tell her solicitors that she was buying a property with Mr Thumbwood until the Friday before the case commenced on the following Monday. In fact, she did not tell them about Mr Thumbwood until that day. When it was put to her that she did not tell them until she knew that the defendant's solicitors had disclosed that they had a certificate of title in the names of the plaintiff and Mr Thumbwood she said, "I didn't know you had them". She denied suggesting that Mr Thumbwood was a homosexual and therefore could not be sleeping with her, and denied that she knew that if he was found to be living with her and was contributing to her upkeep and the family's upkeep it would affect her claim for damages. She described her connection with Mr Thumbwood as a "friendship" rather than a "relationship". She confirmed that she registered a mortgage on the property in Mandurah to enable she and Thumbwood to purchase the property in Kalgoorlie. The plaintiff also agreed that upon the purchase of the house at Kalgoorlie some debts of hers and a debt of Mr Thumbwood's for the purchase of a LandCruiser were added to the total figure borrowed for the purchase of the house in Kalgoorlie. The plaintiff agreed that Mr Thumbwood stayed at her house in Mandurah when she had his ex-wife staying there. She could not remember how many nights. She could not recall whether Mr Thumbwood had stayed with her at Mandurah when no other adults were there. She agreed that Mr Thumbwood called her "Hon" on occasions. She agreed she made arrangements to leave Mandurah and go to live in the same premises as Mr Thumbwood. She denied that she slept with Mr Thumbwood in the house in Hopkins Street. She denied that Mr Thumbwood was frequently at her house during 1997. She confirmed that Mr Thumbwood took the children shopping, to school and was in fact "living with them".

45 The plaintiff was unable to give exact details as to her earnings, which varied between $80 top $220 per week. The family allowance was $236 per fortnight and the pension, she thought, was approximately $360 per fortnight. If she earns more than $80 per week she loses a proportion of her pension - she was unable to give me exact details.

46 The plaintiff was re-examined for some time. She appeared to confirm that her husband did the majority of the work in the plastering business, although she did some of the work herself. After the deceased died she sold the equipment for the business and the truck and did not keep the business going. She confirmed that she was receiving the sum of $260 per fortnight rent from the house in Mandurah, that went straight into the joint account, out of which amount fortnightly payments were made by Mr Thumbwood. She confirmed that in relation to that account it was a joint account and she was able to take money out of it - she said, "I could go there and draw money out everyday if I wanted to" (T105). She has a Keycard which enables her to do this. She gets cash out and pays the bills with cash. The plaintiff confirmed that when the housing loan for the purchase of the Kalgoorlie house was taken out, that loan was increased to enable a $30,000 loan owed by the plaintiff to the Health Services Credit Union to be paid out, and Mr Thumbwood's debt on his LandCruiser in the sum of approximately $19,000 to be paid out. In other words, they rationalised their outstanding debts, added them to the housing loan and that loan is repaid out of joint account in the name of the plaintiff and Mr Thumbwood, to which they both contribute. The plaintiff said that she did not have a sexual relationship with Mr Thumbwood and was not intending to enter into any relationship at that point of time. She described her mental condition as being such that she could not handle such a relationship. The plaintiff confirmed that the deceased looked after all payments of expenses and other outgoings of the household before he died.

47 Mr Russell John Hull has a plastering business in Mandurah; the deceased began working for him in 1993. The deceased first worked for Mr Hull as a labourer; after a time Mr Hull taught the deceased plastering. The deceased apparently had a flair for this trade and became Mr Hull's foreman. Ultimately the deceased left Mr Hull's employment to run his own business. Mr Hull observed the deceased doing his own plastering on a house he and the plaintiff were building in Mandurah. Mr Hull told me that after the deceased set up his own business in 1993 in Mandurah the various plasterers there worked together sharing out jobs which became available. Mr Hull's view was that, although, although the deceased was still learning the business, he was progressing and doing very well. The deceased had worked for a variety of builders. According to Mr Hull, although the deceased initially did not like working weekends because of his family situation, in the end he was looking for more work generally and more weekend work - the deceased was working five and six days a week whereas Mr Hull was working seven days a week.

48 In cross-examination Mr Hull said that there was more money to be made in country areas than in Mandurah because the rates were higher. He did not think he would have any trouble starting up again in Mandurah if he returned there. In addition, they could work in Bunbury, Rockingham or various other places from Mandurah.

49 He had been to the house occupied by the plaintiff in Kalgoorlie on several occasions and in particular, a month or so before the commencement of the trial the plaintiff contacted him, and he had been there twice since that time. He described the layout of the house. He said that he had a look around and "briefly" looked into the games room which was attached to the house. He saw Mr Thumbwood there and described him as "the fellow that shared a house with her". He was cross-examined as to his knowledge of the relationship between the plaintiff and Mr Thumbwood and was rather evasive in my opinion, in his answers. When it was put to him finally that the plaintiff and Mr Thumbwood were living together as man and wife, his answers were, "It could be", and "I guess so. I don't know what the living arrangements are".

50 In re-examination Mr Hull described how he had received a letter from some solicitors, and having gone to the house was shown around the house by the plaintiff. I can only conclude that this visit was intended to place Mr Hull in a position where he could describe the layout of the house to me and apparently in preparation for a suggestion that the plaintiff and Mr Thumbwood were living in a de facto situation. Having been asked in re-examination that, "You don't know what Mrs Wakefield and Steve's living arrangements are", his answer was, "They could be living together; I don't know".

51 I got the distinct impression from Mr Hull's evidence that he was more "au fait" with the living situation at the plaintiff's house than he was prepared to admit in Court. His evidence, I concluded, was of more assistance to the defendant's position on the issue of the living arrangements than the plaintiff's.

52 Aaron Alexander Johnson is a plasterer and is the brother of the plaintiff. Mr Johnson was taught plastering by the deceased and Mr Hull. He worked about five days a week for the deceased who traded under the name of K & N Plasterers. They were working on project homes in the Mandurah area. The deceased had a good reputation as a plasterer. They also did some work outside the Mandurah area.

53 In about December 1966 Mr Johnson commenced his own business and since then, although it started quietly, he has worked consistently for three builders and does some private work. After paying wages and materials and other expenses, "on an easy day" he earns about $300 per day gross.

54 In cross-examination Mr Johnson suggested that he earned approximately $60,000 per year. Having put his tax return in over the first six months he received a reimbursement of $4,000 - he did no know what tax he might have paid; he did not have his tax returns with him in Court. He appeared to insist that he earned in the region of $250 per day gross.

55 He was then cross-examined as to the sleeping arrangements at the plaintiff's house in Kalgoorlie. He stayed there a couple of days and slept in the lounge room on a couch. He referred to Mr Thumbwood as "the bloke that's staying there". When asked where Mr Thumbwood slept his answer was "Well, as far as I knew, he was sleeping in the back room, the games room". He was cross-examined further as to the sleeping arrangements, particularly relating to Mr Thumbwood. As with Mr Hull, the answers by Mr Johnson on the subject were evasive in my view. He was asked whether he had, just before the trial, discussed Mr Thumbwood's presence in the house and he said that he had not. I doubted whether this was the case. He said that Mr Thumbwood "most probably" referred to the plaintiff as "Hon". He denied that he knew what the relationship was between the plaintiff and Mr Thumbwood. He knew they had lived in the same house at a previous address in Kalgoorlie but said that they did not sleep in the same bedroom. Finally this was put to him, "You are certainly not going to swear, are you, that he is not her boyfriend are you? You are not prepared to do that." His answer was, "No, I don't know". He described the games room and said that as far as he knew there was furniture in there, including Mr Thumbwood's bed, together with his clothes and other belongings.

56 As previously mentioned, Mr Johnson's evidence left me with some concern - he appeared to be rather evasive as to the true relationship between the plaintiff and Mr Thumbwood.

57 Mr Alan Gordon Deyer is a licensed enquiry agent. He has been in that position for 13 years and was a senior detective in the WA Police Service for 10 years. He was instructed to make enquiries in September 1997 as to whether the plaintiff had established a relationship with any male or whether she was keeping male company on a regular basis. He kept a running account and note of the observations that he made.

58 He observed the plaintiff's house at Mandurah and observed a Mazda sedan with a "For Sale" sign on it, and also observed a Toyota LandCruiser there on occasions. He identified Mr Thumbwood as the driver of the LandCruiser and the fact that he had attended the house occupied by the plaintiff. There were several telephone numbers given on the advertisement on the Mazda Sedan and he rang one of them. A person identified herself as "Natriece" and as he spoke to that person she advised Mr Deyer that the vehicle was owned by her "boyfriend". He then spoke to a person who identified himself as Mr Stephen Leigh Thumbwood. He obtained some details about the possible purchase of the vehicle. Over a period he observed a variety of vehicles and people at the house.

59 Ultimately, he attended at 97 Wilson Street Kalgoorlie and saw the same Mazda sedan parked in the driveway. He saw a middle-aged couple at the house - they apparently used a Subaru Station Wagon. He also saw the plaintiff, her three children and Mr Thumbwood arriving at the house in the Toyota LandCruiser driven by Mr Thumbwood. He went to the house and spoke initially to Mr Thumbwood. He told them he was making enquiries with them in relation to previous owners of the property. In the course of the conversation with Mr Thumbwood he referred to the plaintiff as "hon"; he thought the room at the back of the house appeared to be like a second lounge room or a games room or family room. Later observations involved the plaintiff being seen driving the Toyota LandCruiser on occasions. The Mazda Sedan was parked at the house. On one occasion the plaintiff drove the LandCruister to, apparently, Mr Thumbwood's place of work and drove him home to the house. On a later occasion the plaintiff and Mr Thumbwood drove in the Toyota LandCruiser to collect the plaintiff's children. On a number of occasions he saw the plaintiff and Mr Thumbwood use the Land Cruiser either together or separately.

60 Steven Lee Thumbwood is the driver of a mobile manufacturing unit based in Kalgoorlie. He has been working in the explosives industry for many years. He is 33 years of age. He was divorced from his wife, Karen Doulis (maiden name) in approximately 1992 and she has been remarried and again divorced. After the divorce from Mr Thumbwood, Ms Doulis married a person with the nickname of "Digger". Mr Thumbwood met Digger through Ms Doulis, his former wife. Mr Thumbwood and his former wife had a son who became a friend of the plaintiff and her late husband.

61 Mr Thumbwood moved to Mandurah after he was married to Ms Doulis in about 1985 and lived there for about 12 months. They then went to Kalgoorlie for approximately two years. Mr Thumbwood was then transferred back to Baldivis and lived in Mandurah from 1992 to 1994. He worked for a time near Pinjarra and then worked up north on a fly-in/fly-out basis. He would see his son and collect him from the house owned and occupied by the plaintiff and the deceased. The deceased knew Digger very well. In 1997 Mr Thumbwood was based in Cue. He would spend time off at his father's house in Mandurah. On occasions he stayed at the plaintiff's house in Mandurah. When he stayed there he said that the plaintiff was there, and also his former wife, his son Wade, and her two daughters. He said that he spoke to the plaintiff about living in Mandurah and each of them said that they were not happy living there. He suggested to the plaintiff that she should live in Kalgoorlie. She said she would think about it. Mr Thumbwood said that he put the suggestion to the plaintiff that they would go to live in Kalgoorlie and share a rental property. He said that he would have gone to Kalgoorlie on his own if the plaintiff had not agreed to go with him. Mr Thumbwood said that he had shared properties with women before putting the suggestion to the plaintiff. He said that the plaintiff moved into a house at 101 Hopkins Street in Boulder with her children. There were three bedrooms - the plaintiff and her children occupied one room, he had another and another couple had the third bedroom. Each of the occupants of the rooms paid one third of the rent. The same was done for telephone and food expenses. Because the plaintiff had children she paid more for food. He said that whilst they were at Hopkins Street at no time did he subsidise or assist the plaintiff or her children financially.

62 Mr Thumbwood then suggested to the plaintiff that they should purchase a house in Kalgoorlie because rent was extremely high and paying rent was wasted money. As a result the house at 97 Wilson Street Kalgoorlie was purchased in March 1998 for a price of $178,000. The plaintiff's house in Mandurah was used as "some form of collateral" and a loan was obtained from BankWest. A letter from BankWest was tendered as Exhibit M. He said that the money borrowed from the bank was used for no purpose other than paying for the house. When it was pointed out to him that the loan figure of $235,143 was greater than the house purchase price of $178,000 Mr Thumbwood agreed that some of the loan was to pay off an outstanding loan on his LandCruiser and an outstanding loan of the plaintiff's. In other words, the three debts were combined and payments were made off those. The rent from the plaintiff's house in Mandurah of $260 per fortnight was paid to Mr Thumbwood and out of the bank account the sum of $767 was paid by way of fortnightly repayments. A bank account was opened according to Mr Thumbwood at the time of the loan and the plaintiff had the right to operate that account "under my consent" into which Mr Thumbwood's salary was paid. The account was entitled "S L Thumbwood and N L Wakefield". Because of Mr Thumbwood's work commitments the plaintiff was allowed to access the account for "bills, groceries, things like that". They went "halves" with gas, power and other bills and the plaintiff's share of the shopping was greater, ie, she paid more for food.

63 Mr Thumbwood then told me that the plaintiff's house was sold in approximately May 1999. The plaintiff received a figure of $88,680 which was paid off the loan for the house in Wilson Street. It appeared that the bank had reduced the fortnightly payments of $490 a fortnight and after some discussion with an accountant the repayments by Mr Thumbwood were $362 and the plaintiff's were $127. It was said that this was arrived at because the plaintiff had "contributed more to the loan". He then said that the account from which the plaintiff drew money from time to time was not operated by her without his consent at any time.

64 Mr Thumbwood said that he would stay in the house so long as the mining industry was satisfactory and would leave if good employment was offered to him elsewhere. As to the house at that time, it was possible that the plaintiff could purchase the property from him. He said he had no intention of remarrying. He said he did not share a bedroom with the plaintiff and effectively lived in the "gamesroom" which has a bed, TV, cupboards, chest of drawers and a lounge.

65 Mr Thumbwood agreed that he left his Mazda car at the plaintiff's house in Mandurah on occasions attempting to sell it. He denied that he gave any financial support to the plaintiff or that he had subsidised the repayment of the house loan for her. He denied that he had had a sexual relationship with the plaintiff since the death of her husband. He denied that he had lived in the past as a de facto with the plaintiff or intended to do so in the future.

66 In cross-examination Mr Thumbwood said that he did not know the plaintiff very well when he asked her whether she would like to move to Kalgoorlie with him. He said he stayed with the plaintiff without other adults being in the house in Mandurah on occasions just before they moved up to Kalgoorlie. They went to Kalgoorlie together and stayed at Mr Thumbwood's mother's house for about a week, looking for a house. He said that when they bought the house in Kalgoorlie he did not understand at the time the significance of buying it as joint tenants. As to that, when he was asked, his answer was "not really, no". He said that there had been a change to ownership as tenants in common early this year, ie, after the hearing in September 1998. He said that a bank account in his name was cancelled and a joint account in the names of the plaintiff and himself was set up at the time the loan was granted. His wages are paid into that account. He then agreed that at that time the plaintiff was issued with a card in her name giving her access to the account. "Technically" Mr Thumbwood said, the plaintiff could draw on the account at any time. He disagreed with the plaintiff's assertion in her evidence to the effect that she could go to the bank and draw out money everyday if she wanted to. He agreed that the figures initially showed that he was paying off about $500 a fortnight off the loan more than the plaintiff. He denied that at any time he had called the plaintiff "Hon" or that she had done the same. Nor had she called him "Babe". He also agreed that when the loan was taken out the bank supplied an amount of $1,000, $700 of which was to pay "joint" general bills.

67 Other documentary evidence was admitted. This will be commented on in due course.

68 It is clear in my view that the manner of driving the vehicle by the defendant caused the accident, and in turn, the death of the deceased. There was, however, no evidence led by the defendant as to how, specifically, the deceased was injured. Similarly, there was no evidence upon which I could find that wearing a seat belt would have prevented the injuries sustained by the deceased which led to his death. Also, there is no evidence that the deceased suffered injuries greater than he would have if he had been wearing a seatbelt. The evidence, particularly that of the photographs, shows that whether or not the occupants of the front seat were wearing seatbelts, the impact was such that death or serious injury would result from the impact. The defence of the defendant (as amended at trial on 16 September 1998) refers to the failure of the deceased to wear a seatbelt as being relevant in two respects - in paragraph 5 as a basis for the general defences of lack of duty of care and volenti non fit injuria, and in paragraph 6 as a basis for a plea of contributory negligence seeking the reduction of any damages awarded to the plaintiff. As to the latter, the defendant, in the light of the evidence, has failed to satisfy me that the plea has been made out.

69 I turn now to the defences pleaded in paragraph 5 of the defence. It is admitted that the defendant was driving negligently as particularised in paragraph 6(a) to (d). The evidence confirms the correctness of this admission.

70 Paragraph 5 is a combination of defences, ie, lack of duty of care and volenti non fit injuria, and a plea that the deceased was guilty of contributory negligence in riding as a passenger in the vehicle on the basis of the deceased's level of intoxication and its effect on his driving, and the knowledge by the deceased of such condition. As submitted on behalf of the plaintiff the two defences of "no breach of duty" and volenti non fit injuria were categorised as separate defences by Burt CJ in Jeffries v Fisher [1985] WAR 250 at 252. Further, for each or both of those defences to succeed the defendant must establish on the balance of probabilities that the deceased knew or had actual knowledge of the defendant's drunken condition. In relation to volenti non fit injuria the defendant must establish that the deceased fully appreciated the risk of being a passenger in the vehicle driven by the defendant and accepted that risk. In relation to the "no duty" defence, it must be shown by the defendant that the death of the deceased was caused by the impairment of the defendant's capacity to properly control the vehicle caused by his intoxication. In SGIC v Hitchcock, unreported; FCt of SCt of WA; Library No 970089; 11 March 1997, this matter was considered by Ipp J at pp 4 and 5. His Honour said,

"It may well be, for example, that a passenger may know that the driver might to some degree be under the influence of alcohol but nevertheless believe that the driver was quite capable of driving safely. A belief that the driver was capable of driving safely would negative the proposition that the driver (sic passenger) accepted a danger of which he had full appreciation: O'Shea v The Permanent Trustee Company of New South Wales Ltd [1971] QdR 1; Suncorp Insurance & Finance v Blakeny (1993) 18 MVR 361. More over, knowledge that the driver is to some degree intoxicated does not necessarily imply full comprehension of the extent of the danger involved (without which the defence of volenti non fit injuria cannot succeed): Roggenkamp v Bennett at 300; O'Shea v The Permanent Trustee Company of New South Wales Ltd at 6."

71 Finally, Ipp J at p9 (relying on Whitfield v McPherson (1995) 21 MVR 18 at 24) noted that, "mere tacit consent to be driven by a driver whose capacity to drive safely has been impaired" does not establish the defence of volenti non fit injuria.

72 As to the question of alcohol, the defendant had a relevant blood alcohol level of 0.123 per cent, greater than the statutory limit of 0.05 per cent, and less than the level at which, by statute, in Western Australia, a driver is deemed to be incapable of properly driving his motor vehicle. I have referred to the various witnesses as to the defendant's ingestion of alcohol and its effect upon him. The most one could conclude from the evidence of Kim Tomlinson, Christine Walsh and Fiona Huxley, is that the defendant, and/or the deceased, were boisterous and possibly rude, in the hours leading up to the accident. There was no evidence as to their manner of speech, gait, or general physical appearance; there was little or no evidence of the normal "indicia" of a person being affected by alcohol.

73 As to the manner of driving of the defendant, there is some inconsistency in the evidence. Tony Maisie suggested that the driving of the defendant was perhaps unsafe, but more in the nature of showing off, whereas Rosemary Freeman suggested that the defendant was driving his vehicle in an unsafe manner. On the other hand a passenger in the vehicle for a short time, Fiona Huxley, thought that the defendant's driving was perfectly safe. The passengers she described as being in high spirits.

74 Although the defendant may have been showing off as he drove, and may have driven in an unsafe manner before the accident and was involved in an accident as a result of his negligent driving, that behaviour and his driving does not in my view necessarily lead to an inference that the driving was caused by his ingestion of alcohol to the degree required.

75 The evidence of Dr Karin Margolis also does not in my view, avail the defendant. Dr Margolis' evidence spoke of a number of factors to be taken into account and the variety of reactions to the ingestion of alcohol by various drivers. The blood alcohol level of the deceased does not, therefore, of itself assist the defendant.

76 On the evidence there are insufficient facts upon which I could be satisfied that the defendant was under the influence of alcohol to such an extent as to be incapable of driving having proper control of his vehicle.

77 Further, there is a paucity of evidence as to the deceased's knowledge of the defendant's condition and an insufficient basis of fact upon which such knowledge could be inferred.

78 I find therefore that the defendant has failed to make out the defences of lack of duty and volenti non fit injuria.

79 Further, I am not satisfied that the plea of contributory negligence has been made out. There is little or no evidence upon which one could find, on the balance of probabilities, that the decision of the deceased to travel as a passenger in the vehicle driven by the defendant, contributed to the death of the deceased. Although, as I have found, there may have been some "showing off" by the defendant as he drove towards the accident scene, together with some unsafe driving, it is only when the defendant was on the double carriageway that this method of driving was such that the vehicle was placed at risk. The evidence established that he was looking towards the deceased, ie, not paying attention and possibly driving faster than the speed limit, when he moved off the road and into the gravel on the edge. From that point the vehicle became out of control, particularly when it moved into the wash-out, and thereafter the application of brakes by the defendant and his general failure to control the vehicle properly, led to the vehicle sliding across the bitumen road and colliding with the bridge structure.

80 In all the circumstances the plea of contributory negligence in paragraph 6 of the defence is not made out.

81 I deal firstly with the issue of the relationship between the plaintiff and Mr Thumbwood and whether or not the latter has, since the death of the deceased, contributed towards the maintenance and upkeep of the plaintiff and/or the children and whether or not in the future such contribution may continue.

82 In relation to this issue, even though not specifically pleaded by the defendant, the defendant was, in my view, in the light of the non-admission by the defendant of the relevant paragraphs in the plaintiff's statement of claim (7 to 10) entitled to raise the issue and cross-examine the plaintiff and other witnesses as to the matter. Further, the plaintiff was granted leave to re-open her case to call Mr Thumbwood in relation to the matter.

83 The evidence establishes that the plaintiff and Mr Thumbwood knew each other reasonably well whilst the plaintiff lived in Mandurah. After the death of the deceased Mr Thumbwood slept at the plaintiff's house on occasions, not only while other adults were there, but also whilst the plaintiff and Mr Thumbwood were the only adults in the house. To some extent Mr Thumbwood treated the plaintiff's house as a "base", including advertising his car for sale from the house.

84 Although the plaintiff said she did not know Mr Thumbwood very well, I am unable to accept this and find that they were on reasonably friendly terms when they went to Kalgoorlie for one week to look for accommodation together. Having decided to move to Kalgoorlie to live, at least, in the same house, that situation has remained since 1997. The plaintiff's evidence was that the arrangement has been, in effect, one of "convenience" with no question of sexual involvement, and only the sharing of financial obligations, not only in relation to the house as occupied, but also day to living expenses. On the other hand, there are a number of facts from which, in my view, it can be inferred that the relationship between the plaintiff and Mr Thumbwood has, since 1997, been as alleged by the defendant.

85 Mr Deyer, licensed enquiry agent, whose evidence I have no reason not to accept, spoke of a person identifying herself as "Natriece" (undoubtedly the plaintiff) referring to Mr Thumbwood as her "boyfriend" in relation to the sale of the defendant's car in Mandurah. In Kalgoorlie, according to Mr Deyer, Mr Thumbwood referred to the plaintiff as "Hon". He described some activities of the plaintiff and Mr Thumbwood clearly of a family nature in relation to the driving of the motor vehicle, the children etc. The purchase of the house at 97 Wilson Street Kalgoorlie, involved a series of transactions which in my view are entirely inconsistent with a purely "business" arrangement. The granting of the loan from BankWest was facilitated by the giving of security over the plaintiff's house. The creation and use of a joint bank account with the plaintiff having daily access by means of a credit card indicates an intention to share the proceeds of that account. The mode of payments in and out of the loan account and the assumption of loans by the plaintiff and Mr Thumbwood into the new loan account, are significant in my view.

86 The living arrangements clearly provide the opportunity for the plaintiff and Mr Thumbwood to have a relationship beyond that of "house sharers". As to the registration of the certificate of title as joint tenants, I was not completely satisfied with the plaintiff's and Mr Thumbwood's evidence as to their ignorance of the significance of such arrangement. Such concerns were confirmed by the circumstances leading up to the discovery by the defendant's solicitors of this situation several days before trial. I was particularly concerned at the obvious failure of the plaintiff to advise her own solicitors of the joint purchase of the house with Mr Thumbwood until shortly before trial. I have already commented on the evidence of Mr Hull and Mr Johnson as to their knowledge of the arrangement between the plaintiff and Mr Thumbwood; both of them were evasive and unreliable in this area.

87 Some months before the resumption of the matter in June 1999, the plaintiff and Mr Thumbwood arranged for the title to be altered so that the property was held as tenants in common rather than joint tenants. I consider that this was a clumsy and unsuccessful attempt on the part of the plaintiff and/or her legal advisers to persuade me of the correctness of the plaintiff's evidence in relation to this aspect.

88 I was also not satisfied with the reliability of the evidence of Mr Thumbwood when he denied having any sexual relationship with the plaintiff. His evidence, particularly in cross-examination, left me with the distinct impression that he was loath to admit that the relationship went beyond one of friendship and convenience only. I do not, for example accept his denials in cross-examination that he did not refer to the plaintiff as "Hon". There were a number of inconsistencies of relevance between the plaintiff and Mr Thumbwood as to their monetary arrangements.

89 It follows therefore that on all the evidence I do not accept the plaintiff's evidence as to the relationship between her and Mr Thumbwood. There are a number of facts upon which I can conclude on the balance of probabilities that the plaintiff and Mr Thumbwood have been living on a de facto basis since 1997 and that such relationship will continue in the indefinite future. There is the clear possibility in my view that the plaintiff will remarry at some time in the future, most probably Mr Thumbwood.

90 The financial arrangements clearly indicate that Mr Thumbwood contributed to the expenses and upkeep of the plaintiff and the children. Such contribution is difficult to quantify. It seems, on the evidence, that Mr Thumbwood paid off for some time approximately $500 more a fortnight than the plaintiff from the loan of the house, and that some "joint" general bills "to the extent of $700" were paid in the early stage by Mr Thumbwood.

91 At the conclusion of the plaintiff's case the defendant's counsel made oral submissions as to the quantum of damages to which the plaintiff was entitled. He commented on, correctly in my view, the paucity of evidence led on behalf of the plaintiff as to the earnings of the deceased and the extent of dependency of the plaintiff and children upon him. I required the plaintiff's counsel to provide me with written submissions as to these matters. These submissions did not take the matter much further. I will therefore, in the calculation of damages, do the best I can with the available evidence.

92 The plaintiff's counsel submitted that the deceased was a "man of great potential", reliance being placed upon the evidence of Messrs Hull and Johnson in particular. It was argued that attention should be focused on the capacity to earn the deceased started to demonstrate in the seven months before his death, when an elevation in his earnings apparently occurred. I accept that the deceased was a hard worker and was a quite quick learner in his trade. On the other hand, the calculations by the plaintiff's counsel of net annual earnings by the deceased of $40,322 is in my view not justified on the evidence, nor should it be calculated by the method relied on by the plaintiff's counsel. For example, in my view the adding back of depreciation expenses is fallacious.

93 The defendant's counsel considered the various tax returns and the earnings of the plaintiff and the deceased. He arrived at a possible figure for "potential" earnings of $39,438 but submitted that this figure should be treated with great caution for a number of reasons. For example, the figure, it was submitted, was for far greater than earnings represented in each of the years up to the death of the deceased. Secondly, it was suggested that the evidence showed a lessening of business in the Mandurah area at the time of the deceased's death. At to the latter, it is clear that the deceased went outside the Mandurah area to obtain work, however, I am not satisfied that the position was as bleak as suggested by the defendant. There had been an acceleration of the deceased's earnings and, in turn, his earning capacity just prior to his death.

94 The defendant's counsel pressed for a figure in the region of $30,000 to be adopted for the deceased's earning capacity at the date of his death. I have examined the (limited) available evidence and conclude that a figure of $35,000 per annum net is appropriate as a basis for calculation of past and future loss. At first glance this may seem to be speculative, however, it can be justified on the basis that the net income for the business before tax for the seven months from 1 July 1994 to 3 February 1998 was $28,686. Extending this figure to 12 months and making a deduction for tax (and not allowing any deduction for depreciation expenses) leads to a figure in the region of $35,000 per annum net or $673 net per week.

95 As to the extent of dependency, there was little evidence available of any use to me. Both counsel appear to have accepted that reliance can be made on the relevant table (9.1 at p356) of Luntz, Assessment of Damages, 3rd Ed. Reliance was placed by the plaintiff's counsel on a number of decisions in the District Court where reference was made to these tables in the calculation of dependency, eg, Dislieff v Connell, unreported; DCt of WA; Library No D970227; 30 July 1997; Frichot v Zalmstra, unreported; DCt of WA; Library No D970158; 15 May 1997; Wellstead v Forster, unreported; DCt of WA; Library No 4861; 12 April 1996; and Biddulph v Lenegan, FCt SCt of WA; Library No 990076; 19 February 1999.

96 In the circumstances I am prepared to accept, as suggested by counsel for the defendant, a figure of 80.5 per cent being an average of the living costs of the family of two adults and three children.

97 I am also prepared to proceed on the basis that the deceased would have continued to work as a plasterer in some capacity until 65 years of age. There has been nothing suggested or shown to me to proceed on any other basis.

98 As to the question of the children's dependency, the plaintiff contended, without any evidentiary support, that each child would be dependent until 21. I was given no evidence as to the children's success or otherwise at school, nor as to their possible educational plans for the future. On the other hand, I am entitled to take judicial notice of the fact that the vast majority of children now continue their education beyond 18 and until at least 21. The width and variety of tertiary and/or post-high school courses are such that very few children stop school and seek jobs at 18, as was not unusual in past years. I am, in this case, to proceed on the basis that each child would have been dependent on the deceased until 21.

99 The calculation of past loss, therefore, would be as follows:

$542 x 188 = $101,896. $101,896

Interest (3.61 years at 4 per cent) = 14,713

Total $116,769

100 As to future loss,

02.10.98 to 20.06.2010 = 22.7 years (multiplier 442.49)

2. Period 2.10.98 to Ashleigh's 21st birthday

(born 14.07.90)

02.10.98 to 14.07.2011 - 12.8 years (multiplier 468.14)

$468.14 minus multiplier 11.7 years (442.49) = 26.65

$673 x 77.5 per cent x 26.65 = 13,900

3. Period 02.10.98 to Danika's 21st birthday

(born 25.03.94**)**

02.10.98 to 25.03.2015 = 16.5 years (multiplier 553)

553 minus multiplier 12.8 years (468.1) = 84.9

$673 x 72.5 per cent x 84.9 = 41,425

Total $ 295,348

Deceased's Remaining Working Life 31 years.

Multiplier 31 years = 748.4

748.4 minus multiplier 16.5 years (553) = 195.4

673 x 69 per cent (2 adults) x 195.4 = 90,738

The total future loss in thus - $386,086

101 The plaintiff has claimed additional amounts for the daughters' weddings and loss of deceased's services as a handyman. As to the former I consider that any such claim is subsumed by the claim for future dependency and as to the latter my findings as to the position of Mr Thumbwood in the family preclude any award beyond November 1997. I accept that the value of the deceased's work as a handyman, on the evidence, can be put at $20 per week. The award is thus 192 weeks at $20 per week, ie, $3,840. To this should be added $555 by way of interest ($3,840 x 3.61 x 4%) The total is thus $4,395. The total past loss is thus: $121,164 (ie, $116,769 plus $4,395).

102 The total pecuniary loss is thus:

Past $121,164

Future 386,086

Total $507,250

103 I now turn to the question of contingencies. It is clear that these should only operate, if at all, from November 1997 when, I have found, that Mr Thumbwood and the plaintiff began a relationship which involved the assumption of some portion of caring for the family in a financial way by Mr Thumbwood.

104 Of course, the plaintiff has denied that any contribution was made by her, as was the case with Mr Thumbwood and therefore there is no evidence of any contribution by the plaintiff or Mr Thumbwood as to dependency.

105 The defendant submitted that contingency figure of 25 per cent should be used as a starting point on the basis of the decision of Knight v Anderson FCt SCt of WA; Library No 970195; 1 May 1997; after which an additional deduction should be made, taking into account any de facto relationship from November 1997 and support for the family by Mr Thumbwood.

106 On the other hand the plaintiff has submitted that a figure of 2.2 to 6 per cent may be appropriate, relying on the decision of Malcolm CJ in Bowen v Tutte [1990] A Tort Rep 68,079. It should be noted, however, that in that case Roland J thought that as much as 10 per cent could be applicable, the same figure being adopted by Wallace J in Black v MVIT [1986] WAR 32.

107 Having considered the evidence and the matters generally, I consider that a deduction for contingencies from the plaintiff's entitlement operating from November 1997 should be on the basis of 20 per cent, and, as far as the children are concerned, the amount of 6 per cent.

108 I now turn to the apportionment of the damages between the plaintiff and the children. There is no evidence as to the proportion of the deceased's income which was spent on each child. The notes to Table 9 in Luntz (supra) suggest that twice as much is spent on each adult than on each child in the normal family. I am prepared to accept that basis. The calculation will thus be made on the basis of 2:1:1:1 with two allowed for the plaintiff.

109 Before any adjustment for contingencies, the calculation is thus:

Sheldon 1/5 of $240,023 = $48,004

Ashleigh 1/5 of $240,023 plus 1/4 of $13,900 = 51,479

Danika 1/5 of $240,023, plus 1/4 of $13,900,

Plus 1/3 of $41,425 = 65,287

Total allocated to children = $164,770

110 As to the plaintiff, I consider that the past loss should be totally allocated to her (including that awarded for loss of handyman services).

111 The calculation is thus:

Total future loss $386,086

Less amount allocated to children 164,770

Balance $221,316

Plus past loss 121,164

Total $342,480

112 The apportionment to the plaintiff is thus $342,480.

113 Applying the contingency figures already determined by me, the calculation is thus:

Children

Sheldon, $48,004 x 94% = $45,124

Ashleigh, 51,479 x 94% = $48,390

Danika, 65,287 x 94% = $61,370

Plaintiff

$342,480 x 80% = $273,984

114 There should also be an allowance for the cost of administration of the funds constituted by the awards for the children. The appropriate figure is 1.25% (see s37(1) of the Public Trustee Act 1941). The calculation is $154,884 x 1.25%, ie, $1,936.

115 The awards are thus:

Children

Sheldon $ 45,124

Ashleigh 48,390

Danika 61,370

$154,884

Plus 1.25% 1,936

$156,820

Plaintiff 273,984

Total Award $430,804