Public Trustee (WA) v Nickisson

1a. That judgment be entered for the plaintiff as administrator of the estate of Derek Nigel Williams deceased for the sum of £4,000 for the benefit of Gregory David Morris Williams an infant son of the deceased.

1b. That judgment be entered for the plaintiff as administrator of the estate of Charlotte Christina Williams deceased for the sum of £1,500 for the benefit of the said Gregory David Morris Williams.

3. By omitting par. 2 thereof and substituting the following new paragraph:

2. That the defendant pay the costs of the plaintiff of this action.

4. By omitting par. 4 thereof and substituting the following new paragraph:

4. That all moneys now or at any time in Court to the credit of this action be paid out to the plaintiff to be applied by him in accordance with this order.

I agree with the reasons which my brother Menzies expresses, and which I have had the opportunity of reading, for setting aside so much of the order of the trial judge in this case as assessed as general damages the sum of £1,500 and ordered the payment of any costs to the defendant and for substituting therefor orders assessing the special damages in the total sum of £5,500, £4,000 in right of the estate of Derek Nigel Williams and £1,500 in right of the estate of Charlotte Christina Williams, and an order that the defendant pay the costs of the action. The appeal should be allowed.

The appellant sued the respondent in the Supreme Court of Western Australia for damages in respect of a collision in which three persons were killed. The three persons were a husband (Derek Williams) and his wife (Charlotte Williams) and one of their two children (Rory Williams). The appellant sued in three different capacities: as administrator of the husband's estate, as administrator of the wife's estate, and as the person entitled to administer the deceased child Rory's estate. In all three capacities he claimed funeral expenses and in each of the first two he claimed under s. 4 of the Fatal Accidents Act, 1959 W.A. damages for the benefit of the surviving child of Derek and Charlotte, a boy named Gregory who was seven years of age at the time of the accident. After trial a formal judgment was drawn up. It is hardly a satisfactory document, being distinguished by an odd disregard of technical distinctions and even of conventional grammar. In terms it awards to the appellant in all his capacities, inter alia, a sum of £1,500 which it describes as general damages and orders to be held for the benefit of Gregory. The reasons for judgment of the learned trial judge (Negus J.) show that he intended the £1,500 as damages for the injury resulting to Gregory from the death of his mother only. His Honour held that on a balance of financial losses and gains no injury resulted to the boy from the death of his father. It seems to be implied from a provision in the formal judgment as to costs, but it is not expressed, that the claim for the death of the father is dismissed. The notice of appeal to this Court describes the appellant as claiming in his three capacities that the whole judgment should be set aside and the amount of the general damages increased. The grounds stated, however, show that no more is intended than an appeal against the dismissal of the claim that was made for the benefit of Gregory in respect of the death of his father. The appeal has been argued on the footing that the appeal is limited in this way, and I proceed to consider it accordingly.

Before the accident Gregory had substantial prospects of receiving financial benefits from both his mother and his father, who were respectively thirty-three and forty years of age and were in good health. Both were in employment, and, since Rory either predeceased them or was mortally injured when they died, Gregory was the only child they had to provide for. They had been ambitious for him and for themselves, and though their means were not great their expenditures had been mainly centred upon maintaining and improving their family life. His Honour considered that the mother, if she had lived, would have contributed for Gregory's benefit during the fourteen years that remained of his minority after the date of the accident about £104 a year for board, lodging, clothing and other necessaries, together with her personal services worth about £52 a year, and that she would have provided for him an additional £26 a year for the six years during which he might be receiving a college education. Spread over the fourteen years her contribution may be taken roughly at £170 a year. This is what is compensated for by the £1,500 which the judgment awarded for the benefit of Gregory.

In order to consider whether the judge was right in thinking that no injury resulted to Gregory from the death of his father, it is necessary to start by fixing a figure which may reasonably be taken as the probable weekly amount of financial benefit the boy would have derived from his father on the assumption that the mother's contribution would have continued until he turned twenty-one, since the boy is being compensated for the loss of it. This figure must be fixed in the light of the fact that at the time the father died the mother and the other child, Rory, were either dead or moribund, and that therefore the father, if he had not been injured, would have had no wife or child other than Gregory to provide for, unless he should remarry.

The judge concluded from the evidence that to provide for Gregory at the standard his parents might have been expected to maintain for him until the age of twenty-one if both had so long lived would cost on the average £364 a year for board, lodging, clothing and other necessaries, plus £52 a year for the extra personal services of a mother, and in addition about £182 for the cost of his attending college from about the age of eleven to about the age of sixteen (college fees, fares, books, etc.)

This comes to something like £500 a year over the whole period. As I have said, it must be taken that the mother would have supplied about £170 a year. It may well have been by some such calculation that the judge worked it out that Gregory's loss due to his father's death was about £260 a year for the fourteen years and £156 for the six years - roughly £330 or so a year over the whole period. But his Honour proceeded to reduce to an unspecified extent the amount he had arrived at, in order to allow for payments that he thought Gregory would probably have received in respect of board, etc., under a Commonwealth scholarship and for a variety of contingencies including the possible death of one or both of the parents or of Gregory himself, the possible ill-health or unemployment of one parent or the other, and possible earnings by Gregory in vacations. On the other hand he took into account the possibility of unexpected prosperity for the family. After mentioning other minor considerations for which he thought it right to make allowance, his Honour reached, but did not specify, a final figure as the present value (as at the father's death) of the annual value of the benefits Gregory might have expected from his father. His Honour indicated only that the figure was less than £2,750, which was the amount that Gregory was likely to receive from his father's estate, insurance moneys being left out of account by reason of s. 5 (2) (a) of the Fatal Accidents Act.

The father was earning at the time of his death about £1,600 a year (including bonus) as cost accountant on the staff of a well-established company. There was evidence as to his prospects in the employment of that company, including evidence that at the time of the hearing his successor was earning about £2,100 (including bonus), and it seems to me reasonable to take it that during the fourteen years before Gregory's attaining twenty-one the father would probably have received, if he had lived, an average salary (including bonus) of about £2,500 a year. Remembering on the one hand that when he died he had no dependent but Gregory, and, on the other hand, that if he had survived he might have remarried and might have had other children before Gregory was off his hands, I think with great respect to the learned primary judge that he under-estimated the average annual value of the financial benefits Gregory was likely to derive from his father.

It was proper, no doubt, to work out an approximate figure on the assumption that Gregory would have been given a college education, though of course the calculation must be treated as only one of several methods by which some guidance may be sought on the more general question. Gregory might have developed ideas or aptitudes leading in other directions. Conversely, he might have wanted and been given not only a college education but a university education. He was not a dull boy by any means, and his parents had hopes that he might take a university course. He might have eased the burden on his father by winning scholarships or taking early employment, or, conversely, his father, having no one else to support, might have heaped upon him every advantage his means could supply. But I am bound to say that even accepting the learned judge's views as to what ought to be taken to be the most probable course of events I should have considered that substantially higher figures than his Honour's ought to have been adopted in order to cover the father's reasonably probable expenditure on Gregory while under twenty-one, and I should have thought also that some not insignificant allowance ought to have been made for the likelihood of his father's helping him in the earlier stages of his career after that age.

I have come to the conclusion that if Gregory had received nothing from his father's estate a reasonable assessment of what s. 6 (2) of the Fatal Accidents Act describes as damages "proportioned to the injury resulting from the death" (of the father) would have been not less than £5,000. Needless to say I have not arrived at that figure by any mathematical calculation, but by considering figures so far as they seemed to give one a lead and then endeavouring to give due weight to all the factors which, though not expressible in figures with any approach to precision, yet should not be denied an effect upon judgment.

Finally there is the question of allowing for the fact that Gregory is entitled to receive from his father's estate a sum of £2,750 or thereabouts, over and above insurance moneys. Once again it is to be remembered that the extent of the injury resulting to Gregory from his father's death must be assessed on the footing that, because of the deaths or impending deaths of his mother and brother, Gregory was the only member of the family in a position to inherit anything from his father. Some judges have felt serious doubt as to the propriety of making any deduction at all in these cases in respect of moneys inherited from the deceased person. It has been said that this is because "although the widow and children may have got the moneys from the estate earlier in time, these moneys in the cases before them (the judges) were probably substantially less than they would have been had the husband and father died in the normal course of events, by reason of savings that he would have made out of his future earnings. The strictly proper approach would be to make a deduction for the acceleration and then make an addition for the future savings lost, and this two-stage calculation was employed in the two Privy Council cases of Royal Trust Co. v. Canadian Pacific Railway [1] and Nance v. British Columbia Electric Railway [2] ." See Mayne and McGregor on Damages, 12th ed. (1961), p. 716, par. 844.

The matter is obviously speculative in the highest degree. In the present case the father might never have left Gregory anything, even if at his death "in the normal course of events" he had left a considerable estate. He might not have acquired more assets in the interval: he might have lost or spent even the little that he had. What the learned authors call the strictly proper approach seems to me of very doubtful general application. But at least in a case like the present, where there is no special reason to take account of a particular expected increase in the father's assets and it is hardly possible to hazard a guess as to whether the years of life that the father might have enjoyed if the accident had not occurred would or would not have seen the dissipation of the £2,750 that he in fact possessed when he was killed, it seems to me that it cannot be right to deduct the whole of the amount inherited from the damages which would have been awarded if there had been no inheritance. I therefore think, with respect, that in the present case his Honour should not have treated the whole £2,750 as a benefit resulting to Gregory from his father's death. Doing the best I can to make a reasonable allowance on this aspect of the case, I think that no more than £1,000 should be deducted from the damages otherwise allowable.

In the result I am of opinion that a reasonable amount of damages to allow in this case is not less than the £4,000 which the other members of the Court think should be awarded. I therefore agree that the appeal should be allowed and the judgment of the Supreme Court varied to include judgment for the plaintiff as administrator of the father's estate for £4,000 for the benefit of Gregory. It must follow that the plaintiff should recover the whole costs of the action.

This appeal arises in proceedings that were curiously framed. Derek Williams (aged forty years), his wife Charlotte Williams (aged thirty-three years) and their infant son Rory were all killed in a motor-car accident which happened on 20th April 1962. The only member of the family that survived the catastrophe was another son Gregory who was born on 20th September 1954. The Public Trustee, as administrator of the intestate estates of Derek and Charlotte and as the person entitled to administer the estate of Rory, brought an action against the present respondent, the person whose negligence caused the accident, to recover £296 15s. 3d., the expenses of burying the three deceased, and to obtain damages under the Fatal Accidents Act on behalf of Gregory. There was but one claim for damages and it was alleged that Gregory was totally supported by the earnings of his father and his mother and that by the death of both his parents he lost benefits they would have conferred upon him. The defendant paid £296 15s. 3d. into court in respect of the claim for funeral expenses and a further sum of £1,500 which the defendant said was sufficient to satisfy in full the whole of the claim on behalf of Gregory. When the case came on for trial negligence was admitted, as was liability to pay the funeral expenses claimed, and the only issue for determination was the damages to be awarded under the Fatal Accidents Act. Negus J., in his consideration of the matter, quite properly treated the action as making two claims for damages, one for pecuniary loss resulting from the death of Derek and the other for pecuniary loss resulting from the death of Charlotte. In respect of the first claim he found that Gregory had suffered no pecuniary loss; in respect of the second claim he awarded £1,500 damages. His Honour's reasons for judgment concluded as follows: "I assess the total damages as £1,500 plus funeral expenses £296 15s. 3d.: namely £1,796 15s. 3d., and enter judgment accordingly". Judgment was thereupon entered as follows: "1. That judgment be entered for the plaintiff The Public Trustee in and for the State of Western Australia as administrator of the estate of the late Derek Nigel Williams deceased and Charlotte Christina Williams deceased and as the person entitled to administer the estate of the late Rory William Morris Williams deceased for the sum of £1,796 15s. 3d. consisting of funeral expenses of £296 15s. 3d. and £1,500 general damages". It was also ordered that the plaintiff should have the costs of the action up to the date of the payment into court by the defendant and as from that date the defendant's costs should be paid by the plaintiff.

The appellant accepts as correct the award of £1,500 damages in respect of the death of Charlotte and appeals to this Court only against so much of the judgment as decided that the appellant, as the administrator of the estate of Derek, was not entitled to any damages because Gregory did not sustain any pecuniary loss by reason of the death of his father. Notwithstanding the state of the pleadings and the form of the order, it is, I think, possible for us to deal with this appeal upon its merits.

Derek Williams was, at the time of his death, employed by James Hardie & Co. Pty. Ltd. as a cost accountant. His Honour found: "He had a responsible position and the desire and determination to do better. His future with the company was quite bright. He was earning approximately £1,425 gross a year and normally, as he did his work properly, received a bonus of 12½% of that salary every year. His salary in the same position could have risen to £1,950 gross a year plus the same bonus in the course of a few years if all had gone well. He might have been promoted, in which case he would have earned more, but it is unlikely he would have been promoted higher than the position of office manager, or have received even that promotion in less than 5 years after the date of the accident, if he received it that early. The present office manager earns £2,400 gross a year plus the bonus of 12½%". It also appears that the deceased was a good father who would do what he could for the advancement of his sons. He and his wife, who was also working, planned to build a family home upon a block of land which they had already purchased. He had assurance policies worth £4,400 approximately in force upon his life. His net estate was £7,100 approximately, which included the insurance moneys as aforesaid which were not to be taken into account in the assessment of damages under the Act. See s. 4 (2) (a).

The very statement that a boy of seven, who had a forty-years-old father careful for his son's welfare who was earning about £1,500 a year and who could be expected to be earning at least £2,200 in a few years, suffered no financial loss by reason of his father's death because he inherited about £2,700 sounds incredible and, notwithstanding the meticulously careful assessment of the learned judge leading to that conclusion, I am satisfied, with respect, that it was wrong.

It seems that a good deal of attention was given at the trial to Gregory's prospects of being given a university education after some years at a public school. Gregory's chances of obtaining a Commonwealth Scholarship were also canvassed. For my part, I do not think it of much importance whether or not his father would have given him such an education. Had he done so, Gregory would probably have had to help himself substantially by scholarships and holiday earnings and, had he not, he would, I am satisfied, have made some different yet adequate provision for his son's welfare and advancement. The difficult question, to which of course it is not possible to give a precise answer, is not so much the particular way in which his father would have looked after and helped him but the extent to which the father would in all probability have used what he had for the maintenance, welfare and advancement of his son in one way or another. There are, of course, all sorts of imponderables to be taken into account but as here the brother Rory was either dead or about to die when the father died (Willis v. The Commonwealth [1] ), Gregory could properly be looked at as an only child subject to the possibility that, if his father had not died when he did, he may have had more children. The father was well employed, with good prospects of earning over £2,500 a year before Gregory would reach the age of seventeen years. In these circumstances and leaving inheritance out of account, I consider that to award anything less than the present value of £400 a year for ten years (viz. £3,080) would clearly be too little. In saying this I am not, of course, assuming that in each of the ten years from Gregory's seventh to seventeenth year his father would have spent £400 upon him. During these years, however, it is probable that Gregory would have been well provided for by his father and although in the earlier years that provision would no doubt have required less than £400 per annum, in later years it might well have required more. Furthermore, it is unlikely that all assistance from his father would have ceased when the boy reached the age of seventeen years. The figures I have taken are, therefore, but a rough overall estimate of the least that probably would have been expended before Gregory was independent of parental assistance. I think, however, that in all the circumstances of this case the award should be somewhat higher than the minimum figure I have mentioned because Gregory is entitled to the same sort of security as he would have had while living in his father's home while preparing with his father's assistance for the kind of vocation open to the bright son of a good father in moderate circumstances. In arriving at the figure of £4,000, which I regard as the proper award, I have made a deduction of £500 by reason of Gregory's inheritance at the age of seven of the whole of his father's estate of £2,700. Had the father not died when he did, Gregory might never have inherited the whole of his estate and, furthermore, it is probable that any inheritance would have had to wait for a long time. An estate of about £2,700 will produce about £3 a week, leaving the capital intact, and this is of sufficient significance, even having regard to Gregory's prospects while his father was alive of getting more later, to warrant some deduction from what would have been the appropriate award if there had been no inheritance.

For the foregoing reasons I consider that the appeal should be allowed and the judgment varied by increasing it by £4,000 for damages for injury resulting to Gregory by reason of the death of his father. The order as to costs should also be set aside and the costs of the trial given to the plaintiff.