Nicol & Nicol v Rabbitt & Anor [2000] QCA 287

[1] MCPHERSON JA: For the reasons given by Williams J, this appeal should be dismissed with costs.

[2] THOMAS JA: I agree with the reasons of and orders proposed by Williams J.

[3] WILLIAMS J: This is an appeal against the quantum awarded by a District Court judge in a Lord Campbell's Act action.

[4] The wife of the first plaintiff died on 30 May 1997 in consequence of injuries sustained in a motor vehicle accident for which the defendants admitted liability. The deceased was aged 57 when she died. She and the first plaintiff married on 3 April 1961 and they had six children; only the second plaintiff was dependent upon the deceased as at the date of her death. As at the date of the deceased's death the first plaintiff was aged 57 and the second plaintiff 15. At the date of trial they were aged 59 and 18 respectively. The family had lived at Cambooya outside Toowoomba for some years. As the deceased was not earning income the only relevant head of loss was loss of domestic services.

[5] As was noted in the reasons for judgment of the learned trial judge it was not contested at trial that the first plaintiff, but for the accident, should have lived "another 20 years or so". In accordance with the approach adopted by counsel on either side at trial that became the basic multiplier used by the judge in making his calculations. That was not challenged on appeal.

[6] The major attack mounted by counsel for the appellant on the reasoning of the learned trial judge was directed to his finding expressed as follows: "I consider that the average length of time spent by the deceased on household duties from which the two plaintiffs benefited would be 30 hours per week." It was submitted that such a finding in the circumstances failed the "goodness gracious me" test, and also was not justified given the specific evidence at trial. The following passages from the reasons are relevant to a consideration of that submission:

"Despite the fact that evidence in cases such as these frequently contains exaggerations (albeit usually honestly made) of the value of a deceased's contribution to the living standards of the family, I have no doubt that this deceased was a devotedly single-minded housewife whose personal financial requirements for her own maintenance were frugal.

The deceased's interests outside the home were few and her absences from the home were almost always for household shopping or for driving the first plaintiff to and from his work in Toowoomba. She invariably prepared the meals, cleaned the house, attended the laundry and she did most of the gardening. Assistance from the plaintiffs in these endeavours occurred relatively rarely."

[7] In the course of his evidence the first plaintiff attempted to calculate the number of hours he spent per week performing household tasks previously undertaken by his wife. The learned trial judge found that he "obtained little help from that". That was primarily because the first plaintiff "does less than she did" and what he does he does "less well and more slowly". The learned trial judge found the evidence of Sandra Gail Nicol, a daughter of the first plaintiff and the deceased, of more benefit in this regard. She was a single mother with two young children. Whilst her mother was alive she saw a great deal of her in and around the home. They lived "in close proximity" and the deceased babysat Sandra's two children twice a week. According to her evidence she dropped around to her mother's place "regularly". Relevantly her evidence was:

"I guess the first impression you get when you walk into Mum's house was a state of order. She was a very orderly person. Everything was spotless, immaculate. Its the difference between being tidy and being clean and tidy. The little things make the difference. I mean, anybody can make a bed and sweep a floor but Mum would plump the pillows and make sure the bedspread was straight and make sure everything was co-ordinated. Dust all the little things on the dressing table ... In the kitchen there was no grease splatters behind the stove and there was no dust on the window sill and there was no cobweb to be seen anywhere. It was just the general impression of complete order. ... Yes, she spent a lot of time in the garden. I don't think Mum had ever really had a garden before so when Mum and Dad moved to Cambooya a lot of time was spent just creating that. ... Knowing how long it takes me to do my home and knowing that my standard is equal to my Mum's, ... I would say that she would spend perhaps 5 or 6 hours a day just housework, garden and shopping ...".

[8] That, and other evidence, clearly entitled the learned trial judge to find, as he did, that the deceased spent a good deal of time each day on housework and other chores which were for the benefit of herself and the plaintiffs. The learned trial judge was obviously impressed with Sandra Nicol and accepted her evidence. He discounted her estimate of 5 to 6 hours per day bearing in mind that the witness also had to contend with young children.

[9] When one bears in mind the time involved driving the first plaintiff to and from his place of employment in Toowoomba on average once or twice a week, a round trip of about 50 minutes, a finding of 30 hours per week does not in my view fail the "goodness gracious me" test.

[10] Further, and more importantly, it cannot be said that the finding was not open to the learned trial judge given the evidence. Certainly a finding of 30 hours per week was at the very upper limit of the range. There is always an element of arbitrariness in a finding such as this, and ultimately all an appellate court can do is decide whether or not the finding was within the range reasonably open. Given the way this trial was conducted, in particular the cross-examination by counsel for the defence on matters relevant to this issue, I am not persuaded that a finding of 30 hours per week was outside the permissible range.

[11] Counsel for the appellant also submitted that no account was taken of the fact that some of the work performed by the deceased was also for the benefit of the deceased. What is important for present purposes is that the work must have been for the benefit of the surviving spouse in order for there to be a relevant loss. On principle it is not to the point to say that someone else, for example the deceased, also received a benefit from the performance of the task. A reading of the record suggests that there was no attempt made by counsel for the defendants to separate out and quantify any benefit received by the deceased alone from performing the work in question. If the deceased and the surviving spouse jointly benefited from what was done by the deceased then the surviving spouse has suffered a loss represented by the value of the work in question without any deduction.

[12] It must be remembered that in cases such as this the claim is "for recompense for some tangible advantage which has been lost by reason of the death of the deceased. ... In this type of claim the loss can be identified directly and it is unnecessary to point to some need by which it is represented." (Nguyen v Nguyen (1990) 169 CLR 245 at 263). Even if the first plaintiff here did not have a strict need for the provision of all of the services, nonetheless he lost the benefit of those services which had previously been provided by his wife.

[13] At trial there was an admission that the appropriate commercial rate for the provision of household services between the date of death and 24 June 1999 was $10 per hour and thereafter $12 per hour. That commercial rate was then used by counsel for each party in making submissions to the trial judge as to the appropriate award of damages. In other words the trial was clearly conducted upon the basis that the task for the trial judge was to ascertain the time spent by the deceased in providing the household services in question and thereafter calculate the plaintiffs' loss by using that commercial rate. There are passages in Nguyen, in particular at 263-5, which suggest that that may often be an unsuitable method to adopt; but here the trial was clearly conducted on the basis that the calculation should be made in that way. Counsel for the appellant could not, and did not, contend in those circumstances that the learned trial judge erred in calculating the loss as he did.

[14] It follows that once the learned trial judge held that the deceased spent on average 30 hours per week in providing the services in question the assessment of damages became merely an arithmetical exercise.

[15] The second plaintiff completed year 12 at High School at the end of 1998. He obtained his first job about a week before the trial which commenced on 7 September 1999. In the intervening period he had attended some job experience courses. His employment was as a trainee vacuum cleaner salesman in Brisbane. It was described in evidence as "a trial job". It apparently involved selling on a door to door basis. There was clear evidence that if the second plaintiff for any reason did not remain in that job he would return to live at Cambooya and seek employment in the Toowoomba district. The learned trial judge found: "I regard his continuing employment prospects as at least doubtful and should he lose this job, he is likely to return to the Cambooya home and look for work in the Toowoomba area." Because of that the learned trial judge decided to "allow him one year post trial as the period he probably would have been the beneficiary of his late mother's domestic services". That finding was also challenged by the appellants.

[16] Given the age of the second plaintiff and his job outlook that finding was not unreasonable.

[17] Once it is accepted that a figure of 30 hours per week should be used as the measure of the deceased's domestic services there is no basis for challenging the basic calculations made by the learned trial judge. The overall assessment is clearly not manifestly excessive.

[18] Counsel for the appellant referred at some length to the assessment of loss in White v Mt Isa Mines Ltd (unreported, Supreme Court Mt Isa, No 6 of 1991, Williams J). That was a case where the male principal breadwinner died, and the trial judge was critical of the widow's evidence as to the time spent by the deceased performing domestic chores. It was a decision on its own particular facts and is not determinative of any issue raised by the claim now under consideration.

[19] It was conceded by counsel for the plaintiffs that the learned trial judge did make one error in calculation. He allowed the second plaintiff, as noted above, dependency for one year after trial, and awarded $7,000 for that loss. But then he allowed that sum again when calculating the first plaintiff's loss for the period 7 September 1999 to 7 December 2004 (when the first plaintiff will retire). It was conceded that $7,000 should be deducted from the judgment, but it was also conceded that that had no consequences upon the costs order made at trial. The concession with respect to the $7,000 was made at a very early stage by the legal representatives for the plaintiffs and in consequence that variation to the judgment does not impact upon the question of costs of the appeal. It was agreed that the $7,000 should be deducted from the judgment in favour of the first plaintiff.

(1) Order that the judgment of 9 September 1999 be varied by deleting the figure of $159,050 in the judgment in favour of the first plaintiff and inserting in lieu thereof the amount $152,050;