Apportionment in the dependants' action
51 During argument in the appeal concern was expressed about the way in which the award in the dependants' action was apportioned as between the respondent and his daughter Dana with respect to past care. The judgment indicates that the award of $8724 in favour of Dana was the sum sought by the respondent, who was the sole plaintiff at trial.
52 The trial judge made separate calculations with respect to the past care components of the award in the dependants' action. These were then aggregated with other components to make up the requisite single award. By implication the apportionment of the award is in accordance with the identified components.
53 When Mrs Jelfs died on 12 September 1989, Peter (born 19 November 1973 - then aged almost 16) was still at school and Dana (born 27 February 1972 - then aged 17) was employed at the Department of Social Security. Dana took leave without pay from the beginning of 1990 and while on leave resigned her position on 6 March 1990. Because of the respondent's condition and the age of her brother, Dana virtually took over where her late mother had left off. She did the cooking, cleaning, washing, shopping and driving for the family. She spent 20-30 hours per week in these activities. She moved to Innisfail when the family moved, although (after a period) she moved into separate accommodation there. But she continued to do virtually all the work until about mid 1992.
54 Sometimes it is appropriate to treat the death of one parent as shifting to the survivor the role of maintaining the children. In those circumstances the children suffer no loss in consequence of their parent's death and this is reflected in the apportionment exercise (see Luntz, Assessment of Damages for Personal Injury or Death 3rd ed, 1990, [9.4.5]). But this is not an invariable rule. There can be cases where the surviving parent might squander the damages awarded and not provide for the children as well as the deceased had done (ibid).
55 Here the Court knows the facts, and so there is no need to speculate about them. Those facts show that Dana's loss in consequence of the death of her mother was real and substantial. Her father certainly did not take on the deceased's role. It is conventional and appropriate in the case of a young adult who has gone to work to treat his or her dependence upon the deceased as ceasing at age 18 and this seems to have been the basis for the slight award to Dana for part care ($8724).
56 Since, however, that was the sum claimed by the respondent there is a sense of unease that the rights of Dana may not have been given their proper due.
57 The appeal should be dismissed with costs.
58 I have had the benefit of reading the judgment of Handley JA. Since the issue of the daughter's entitlement has not been fully argued at this stage of the proceedings I would prefer to reserve my position on the issue.
59 I concur with the additional orders proposed by Handley JA in the dependants' action. They will allow the appeal to be disposed of, and they will ensure that the apportionment issue can come back to the Court if the family members are unable to reach agreement.
60 HANDLEY JA: In this appeal I have had the benefit of reading the judgment of Mason P. I agree with his Honour's reasons and conclusions but I am not able to acquiesce in the apportionment of the judgment for $527,475 in the action under the Compensation to Relatives Act (the Act). The plaintiff in that action was the widower, but it was brought not only for his benefit but also for the benefit of the two children of the marriage, Peter, who was almost 16 at the date of death, and Dana who was then 17.
61 Section 4 (1), so far as relevant, enables such an action to be brought:
"… for the benefit of the … husband … and child of the person whose death has been so caused and shall be brought by and in the name of the executor or administrator of the person deceased, and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action is brought, and the amount so recovered ... shall be divided amongst the before-mentioned parties in such shares as the jury by their verdict find and direct".
62 The present action was not brought by the widower pursuant to s 4 but pursuant to s6B(1) which provides where there is no executor or administrator, or where such person does not bring an action under the Act, "the person or any one or more of the persons for whose benefit the action might be brought by such an executor or administrator may bring the action". Sub s (2) provides:
"Any action so brought shall be for the benefit of the same person or persons and shall be subject to the same provisions and procedure, as nearly as may be, as if it were brought by such an executor or administrator".
63 The effect of these provisions was considered by Lord Wright in Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 who said, 611-2:
"The general nature of the remedy under the Fatal Accidents Act has often been explained … the claim is, in the words of Bowen LJ in The Vera Cruz [No 2] (1884) 9 PD 96, 101: for injuriously affecting the family of the deceased. … The damages are to be based on the reasonable expectation of pecuniary benefit or benefit reducible to money value. … The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing, on the one hand, the loss to him of the future pecuniary benefit, and, on the other, any pecuniary advantage which from whatever source comes to him by reason of the death".
See also Nguyen v Nguyen (1990) 169 CLR 245.
64 I am concerned at the apportionment which awarded $8,724 to Dana, said to be the amount claimed, and $72,900 for Peter, inclusive of interest in each case, for loss of past care, and $104,300 to the widower for past care out of the total verdict of $527,475.
65 The facts in relation to the daughter's loss, as stated by Mason P, were that following the death of the mother on 12 September 1989 Dana, who was then employed at the Department of Social Security:
"… took leave without pay from the beginning of 1990 and while on leave resigned her position on 6 March 1990. Because of the respondent's condition and the age of her brother Dana virtually took over where her late mother had left off. She did the cooking, cleaning, washing, shopping and driving for the family. She spent 20-30 hours per week in these activities. She moved to Innisfail when the family moved, although [after a period] she moved into separate accommodation there. But she continued to do virtually all the work until about mid 1992".
66 As the President states:
"These facts show that Dana's loss in consequence of the death of her mother was real and substantial. Her father certainly did not take on the deceased's role. However it is conventional and appropriate in a case of a young adult who has gone to work to treat his or her dependence upon the deceased as ceasing at age 18. This seems to have been the basis of the slight award to Dana for past care … Indeed the judgment indicates that it was the sum claimed [presumably by the respondent, who was the plaintiff in the dependants' action]".
67 I am unable to acquiesce in an apportionment for Dana of $8,724 for loss of past care out of a total award under this head of $185,803 when:
(1) She replaced her mother as the care provider for this family on a part time basis until the beginning of 1990 and then on a full time basis until mid 1992;
(2) She gave up a full time job with the Department of Social Security to do so, and lost the earnings and the economic and social benefits of full time employment during this period, and the springboard that would have provided for promotion or a transfer to a better job;
(3) The damages for lost services she replaced with her labour and at the cost of her personal earnings have been awarded to her father and brother who received the benefit of the care she provided.
68 A result so unjust, anomalous and discriminatory should only be accepted by the Court if it is mandated by directly binding authority or intractable statutory language but this is not the case. The Court cannot make final orders to give effect to my prima facie view because the daughter and the son were not separately represented and the Court has not heard full argument on the question which does not concern the appellant.
69 An injured plaintiff who recovers an award for past gratuitous services under the principles in Griffiths v Kerkemeyer (1977) 139 CLR 161, provided by members of his or her family, does not hold that award in trust for the persons providing those services. See Kars v Kars (1996) 187 CLR 354. However in my respectful opinion this does not support the apportionment of the award for loss of past care made in this case. The critical distinction is that under the Act each dependant is a party to an action brought for his or her benefit. The position was explained by Hutley JA in McIntosh v Williams [1976] 2 NSWLR 237, 250-1:
"A person on whose behalf an action is brought has an individual and personal claim for loss … The court can order a person who ought to have been joined as a party but is not to be joined … If it were necessary, the court could stand over the determination of the appeal so that [the infant] could appeal, as she has an individual personal right".
70 Subsequently in McIntosh v Williams [No 2] [1979] 2 NSWLR 543, 560-1 Hutley JA added:
"Though only one action can be brought, and it is for the benefit of all diverse claimants, those claimants have individual rights, and there may be occasion in which these individual rights would have to be vindicated. Instances in which the courts have had to treat rights as individual are to be found in Mead v Clarke Chapman & Co Ltd [1956] 1 WLR 76 and Mulholland v McCrea [1961] NI 135. As stated in McGregor on Damages, 13th ed … p 801 'the fact that only one action may be brought is … only designed to promote ease of administration, and the action is given to the dependants as individuals and not as a class, so that each dependant is entitled to compensation for the loss resulting to him personally'."
71 This has been settled law for a very long time. In Pym v The Great Northern Railway Co (1863) 4 B&S 397, 407 (122 ER 508, 512) Erle CJ, delivering the judgment of the Exchequer Chamber, said:
"The remedy … given by the statute is not given to a class but to individuals … this requires the jury to consider how each of the parties is situated, and how the interest of each is affected".
72 The principles which govern an award under the Act for loss of the services of a mother were stated in Nguyen v Nguyen (1990) 169 CLR 245 at 254, 254 by Deane J:
"It has long been recognised that the loss of gratuitous domestic services, which are replaced or will be replaced at pecuniary cost, may provide a basis for compensation under Lord Campbell's Act if the circumstances are such that there was a reasonable prospect of [the services] being rendered freely in the future but for the death … the assessment of the damages proportioned to the injury sustained may be more difficult … where the services have not been and will not be replaced than in a case where the actual cost of replacement services has been incurred … In both cases, however, the injury is the same. It is the loss of the services: 'the widower, who does without and fends for himself, suffers loss as much as the widower who replaces the lost services with those of a housekeeper': Budget Rent-A-Car Pty Ltd v Van Der Kemp [1984] 3 NSWLR 302, 309 per McHugh JA … That loss is a loss of a material benefit which is capable of being valued in monetary terms".
73 Brennan J said 247, 249:
"When a claim is made for the loss of the services which would or might have been provided by a deceased spouse, the entire family situation before the death must be compared with the entire family situation after the death. By that comparison it is possible to ascertain the balance of the loss - on the one hand the savings made by the plaintiffs in consequence of the death and their exemption from providing services to the deceased spouse; on the other the benefits conferred on the plaintiffs by the deceased spouse - and the true nature and extent of the injury resulting from [the] death to the parties".
74 At 263, 266, in their joint judgment, Dawson, Toohey and McHugh JJ said:
"… the deceased may have made a contribution in services rather than money in which case damages are recoverable for their loss, whether or not they are, or are to be, replaced, provided that a pecuniary value can be placed upon them … if the services are housekeeping services there is no reason why a pecuniary value should not be placed upon them … In some families, the children might reasonably have been expected in the course of time to have taken up, to a greater or lesser extent, the household duties previously performed by a parent. In that event, the loss incurred by reason of the death of that parent is the less. Of course, if the children take up the household duties, not in the ordinary course of events, but only because of the death of the parent, that will not reduce the total loss and it is irrelevant that the services do not need to be replaced by someone outside the household". (emphasis supplied)
75 Dana only took up the household duties because of the death of her mother, and the Judge held, correctly, that her actions did not reduce the total loss. However he then ignored her contribution when apportioning this part of the award. When a widower "does without and fends for himself" he has been held to suffer loss as much as the widower who employs a housekeeper. The same principle should apply when an unmarried daughter such as Dana provides the replacement services. In doing so she suffers loss as much as the widower considered in Naum v Nominal Defendant [1974] 2 NSWLR 14, 16, and Budget Rent-A-Car Ltd v Van Der Kemp [1984] 3 NSWLR 303, 309. In Nguyen v Nguyen itself the widower, a recent migrant from Vietnam, who had not been able to obtain employment in this country, took over the role of housekeeper formerly undertaken by his late wife, and he was entitled to the damages awarded for the loss of his wife's gratuitous domestic services.
76 In Mehmet v Perry [1977] 2 All ER 529 a widower who gave up full time employment to look after his young family was held to have acted reasonably. Brian Neill QC held that damages for the loss of his wife's housekeeping services should be assessed by reference to his loss of wages, rather than the cost of employing a housekeeper (536) "because it represents the cost in the circumstances of providing the services of the plaintiff as a full time housekeeper in substitution for the deceased".
77 This decision was followed in Cresswell v Eton [1991] 1 WLR 1113 and earlier in Watkins v Lovegrove, referred to at 1121-2, where Robert Goff J said:
"…it is well recognised that the pecuniary loss … recoverable … may include pecuniary loss suffered in the replacement of services rendered gratuitously by the deceased. This type of loss, is of course, of particular importance if the deceased was the wife of the dependant … a husband may be able to recover damages in respect of the cost of employing a housekeeper to perform the services previously performed gratuitously by his deceased wife. However, it may happen that the husband may decide himself to perform - for example in respect of the care of his children - services previously performed by his wife. If he acts reasonably in so doing, I can see no reason why … any pecuniary loss suffered by him in so acting should not be a recoverable head of damage as being a monetary loss incurred in replacement of services rendered gratuitously by his deceased wife. There is ample authority that such loss is so recoverable; for example … in Mehmet v Perry …".
78 In my opinion therefore authority, as well as justice and principle, point to the conclusion that the Judge erred in his apportionment of the award for past care. If Dana had appealed against the apportionment I would therefore have been disposed, in the absence of a cogent argument from the widower or the brother, who have not been heard, to allow her appeal. Dana, who attained her majority in February 1990, has not appealed and has not been separately represented at any stage. However there is no reason to think that she is aware of her rights, and the respondent, her father, has not challenged the apportionment on her behalf.
79 What is the Court to do? It is not powerless because SCR Pt 51 r 22(1) provides that it may exercise its powers notwithstanding that there is no appeal from some part of the decision, that a party to the proceedings in the Court below has not appealed, or that any ground for allowing the appeal or varying the decision is not stated in any notice of appeal.
80 This makes it necessary to consider the duty, if any, owed by the respondent to his daughter in the conduct of these proceedings. In Erwin v Shannon's Brick, Tile & Pottery Co Ltd (1938) 38 SR (NSW) 555, (Erwin) 560, 561 Jordan CJ held that every action under the Act:
"is brought by the plaintiff in a fiduciary character and inures for the benefit of all relatives within the class who have in fact suffered injury … it would be the clear duty of the plaintiff … to present properly the cases of all the interested dependants".
81 In McIntosh v Williams [1976] 2 NSWLR 237, 246, 250-1 this Court, when ordering a new trial, made orders to ensure that the claim of an illegitimate child of the deceased, who was not then a party, was not ignored by the widow who was bringing an action for the benefit of the dependants. Hutley JA said, 251:
"The respondent has fiduciary duties to the class of dependants on whose behalf she is bringing this action, and it would be a breach on her part of her fiduciary duty to this child not to press her claim".
82 See also per Samuels JA at 258; Avery v L & N E Railway Co [1938] AC 606, 613 per Lord Atkin; Erwin ibid 561 per Jordan CJ.
83 The nature of the discretion to apportion damages under the Act was considered in Gullifer v Pohto [1978] 2 NSWLR 353, 363, where this Court said:
"The apportionment specifically provided for by s 4 is a determination made between the claimants … The statute prescribes no criteria to be applied in making the apportionment. Different considerations may apply to the apportionment from those to be applied in the assessment of the award against the defendant. An example is the case earlier referred to where a loss of services of a wife and mother is shared in whole or in part by the widower and the children. If, to the date of trial, the widower has replaced the loss by the employment of substitute services, it will usually be proper to apportion the whole of the compensation for at least that part of the common loss to the widower. This is not the occasion to examine the exercise of the wide jurisdiction to apportion … ".
84 The Court earlier said, at 360:
"… the loss of the household services rendered by the deceased … was sustained by the husband, but it was also sustained by the claimant children. So far as a child suffers such a loss it was a loss common to the child and father but compensable as one loss by the defendant. Usually, in assessing the verdict or judgment to be given against the defendant, it is not necessary to be concerned with the loss of their mother's services by the children. The particular loss of such services sustained by a child claimant does require particular consideration when the court comes to determine the different question involved in apportionment of the judgment between the claimants … Upon the apportionment issue, the loss by the child is one which it can be expected will be replaced at the cost of the father, so that most of the common loss may properly be apportioned to the father. If however the child has suffered a loss to the date of trial without replacement .. the loss of the child, in addition to its relevance to the award against the defendant, needs to be brought to the account of the child in the apportionment ". (emphasis supplied)
85 That of course is the present case because the loss by Dana of the benefit of her mother's services was not replaced at the cost of the father or at all, and she has replaced the services lost by her father and her brother with services provided by herself, but these matters have not been brought to account in her favour in the apportionment.
86 In my opinion there has been a prima facie breach of fiduciary duty by the respondent towards Dana from which he will derive a substantial financial benefit which this Court should not ignore. The following orders should therefore be made:
87 (1) Appeal dismissed with costs.
(2) Order that the appellant pay into Court within 21 days the sum of $185,803 out of the judgment for $527,475 awarded for the cause of action under the Compensation to Relatives Act being the award for past loss of care together with post judgment interest accrued on that amount to the date of payment in.
(3) Pursuant to its powers under SCR Pt 51 r 22(1) the question of the proper apportionment of the monies ordered to be paid into Court between the respondent, Dennis Jelfs, and the other persons, Peter Jelfs and Dana Jelfs, for whose benefit the action was brought, is adjourned for a directions hearing before the President at 9.30 am on Friday 25 June.
(4) The respondent Dennis Jelfs is within 7 days to serve on Peter Jelfs and Dana Jelfs copies of the Court's reasons for judgment including the orders therein and a letter from his solicitors informing them that the proceedings will be before the Court on the date referred to so that the Court can consider any application for a variation of the apportionment of the sum of $185,803 plus interest in Court representing the award for past loss of care before the monies are paid out of Court to the persons entitled and that the costs of those persons, reasonably incurred, are likely to be ordered to be paid out of the funds in Court.
88 GILES JA: I agree that, for the reasons given by Mason P, the appeals should be dismissed with costs. I adopt for myself what his Honour has said in paras 58 and 59 of his reasons.