Walden v Black [2006] NSWCA 170 | Case summary

Walden v Black [2006] NSWCA 170 | Case summary | Zoe

Wednesday 5 July 2006 EDWIN PETER WALDEN v BARRY GORDON BLACK Judgment 1 BEAZLEY JA: This matter was heard by Tobias and Bryson JJA pursuant to the provisions of s 46A of the Supreme Court Act 1970. 2 Their Honours being unable to agree on the result, the parties consented to my hearing the matter by reading the transcript of argument as well as the relevant material in the appeal book. 3 Tobias JA has set out the history of the matter and the relevant legal principles. It is not necessary to repeat them. The essential difference between their Honours' approach was whether this Court could and should interfere with her Honour's determination given that it was based upon an adverse credit finding in relation to the evidence of both the appellant and his son. 4 In Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, the High Court once again reviewed the circumstances in which an appellate court may interfere with a credit-based finding of a trial judge. This decision, and the other decisions of the High Court that dealt with this issue, in particular CSR Ltd v Della Maddalena (2006) 80 ALJR 458; [2006] HCA 1, are reviewed in detail by Tobias JA. I respectfully adopt his Honour's reasons on this issue, especially at [82] and [83]. I would add that even if her Honour's credit finding was based, in any way, on demeanour that does not make her judgment impregnable from appellate review. That is particularly so in this case given that many of her findings were either wrong or did not follow from the evidence. I refer in particular to the supposed differences in the evidence given by the appellant and Matthew relating to the time the deceased assisted her father and an unrealistic assessment of the amount of time the deceased would have spent providing domestic assistance to the deceased, in my opinion, 12.5 hours a week would not cover the time involved in meal preparation, let alone take into account other household tasks that the deceased performed; and her Honour's apparent misunderstanding as to the work performed by the deceased on the farm within areas of expertise that were not shared by the appellant or Matthew. 5 It is also apparent that her Honour did not accurately understand the law in this area. One example is her Honour's statement at Red Book 109 T-U that: "If I were to accept the evidence of the [appellant] and his son, I would be required to make a finding that neither of them are them are able to care for themselves in any way, that however, is contrary to their reluctant concessions made during cross examination".

The question for her Honour's determination was not whether the appellant and Matthew were able to care for themselves, but what was the likely level of services that the deceased would provide in the future. I am inclined to think that her Honour's credit findings were based, in part at least, on her misunderstanding of the law. 6 Having regard to these matters, and as I accept and agree with the reasons of Tobias JA, I agree with the Orders proposed by his Honour. 7 TOBIAS JA: On 27 August 1999, Janet Maude Walden (the deceased), the wife of the appellant, Edwin Peter Walden, was killed in a motor vehicle accident caused by the negligence of the respondent, Barry Gordon Black. 8 On 25 July 2001 the appellant instituted proceedings against the respondent in the District Court of New South Wales claiming damages under the Compensation to Relatives Act 1897 (the Act) with respect to the death of his wife. The respondent admitted liability but denied that the appellant was entitled to any damages. 9 The proceedings were heard by her Honour Judge English (the primary judge) in November 2003. The evidence and the oral addresses concluded on 24 November 2003 after which the parties provided the primary judge with written submissions on or before 24 December 2003. The primary judge reserved her judgment, which was not delivered until 9 September 2004. Having published her findings, her Honour formally entered judgment in favour of the appellant on 8 October 2004, awarding him the sum of $491,393 and costs. 10 The appellant has appealed to this Court alleging that the primary judge erred in her findings in a number of respects resulting in him receiving significantly less compensation than that to which he was properly entitled. It was the appellant's submission that, in the event that this Court determined that the primary judge had erred, it should itself reassess the compensation to which the appellant was entitled. 11 On the other hand, the respondent submitted that her Honour's findings were based on an adverse view of the credit of the appellant and his son Matthew as a consequence whereof it was not open to this Court to intervene to set aside what were essentially credit-based findings. However, if this Court did find appealable error, then because issues of credit remained for determination, it was contended that it would be inappropriate for this Court to make the findings of fact necessary to reassess compensation and that accordingly, the matter should be remitted to the District Court for a new trial.

The nature of the appellant's claim before the primary judge 12 At the time of the hearing in November 2003 the appellant was 66 years of age. At the time of her death in August 1999, the deceased was aged 53 years and was approximately nine years younger than the appellant. They were married in 1968 and had three children - two daughters, Katrina and Carmen, and a son, Matthew. Matthew was 28 at the date of his mother's death and 32 at the date of the hearing. At the time of his mother's death Matthew resided with his parents and at the time of the hearing resided with his father as he was involved full-time in the capacity of a dairyman in the operation of the dairy farm which had been owned and conducted jointly by the appellant and the deceased. 13 Prior to the deceased's death both daughters had moved to Sydney where they continue to live. Katrina was a theatre-nursing sister at St George Hospital and was highly trained as a cancer surgery theatre nurse. She married in 2001 but was widowed three months later. At the time of her mother's death Carmen was in the final year of her studies at the University of Technology Sydney while as at the date of the hearing she was a property trust manager for a trustee company and was engaged to be married. 14 The appellant's claim for compensation was advanced under four heads. The first three related to the services she provided to the joint businesses owned and operated by herself and the appellant, the fourth was directed to the domestic services she provided to and for the family. 15 At the time of her death the deceased was involved in three businesses owned and operated by herself and the appellant. The first was a joinery business conducted by Bega Joinery Pty Limited (the joinery business) in which she and the appellant were directors and equal shareholders. The appellant was a cabinet maker/joiner by trade and worked fulltime as such in that business. The deceased worked as an employee of the joinery business providing clerical and administrative services allegedly for four hours per day, five days per week (a total of 20 hours per week). 16 The primary judge found, as this finding was not challenged on appeal, that the deceased and the appellant would have retired from the joinery business on 30 June 2004. The appellant therefore claimed compensation in respect of the loss of the deceased's services to that business in the sum of $100,475 upon the basis that she would have continued to provide clerical and administrative services to the business until it was either sold or ceased operating at the end of June 2004. 17 The second business in which the deceased was involved related to the letting of some holiday units located at Tathra (approximately 20 minutes drive from the family home near Bega) and which were owned by a family trust which she managed. The appellant claimed that her services in respect of the units amounted to seven hours per week in respect of which the amount of $4,865 was claimed by way of compensation. The primary judge allowed this claim and there was no issue with respect to it upon the appeal. 18 However, the units were sold by the trust in June 2000 for the sum of $319,000 of which $100,000 was used by the appellant to repay a debt to the estate of the deceased's father; $120,000 was used to pay off the mortgage on the dairy property and $75,000 was used for the purchase of additional land for the dairy and for the upgrading of the dairy farm machinery. I mention these matters because they were relied upon by the respondent as financial benefits received by the appellant as a consequence of the deceased's death which he may not otherwise have received had she survived him and in respect of which, so it was submitted, a set-off in the amount of $80,000 should be applied in the event that the Court determined to reassess the compensation to which the appellant was entitled. 19 The third business in which the deceased was involved was the ownership, management and running of the dairy farm, which had been in her family since 1896. The deceased and the appellant had purchased the property jointly from her parents in 1992 for $250,000. It comprised an area of 70 hectares although the family owned a further 198 acres which were used for various purposes complementary to the dairy business. 20 The appellant claimed that the deceased worked in the dairy business for at least four hours per day, seven days per week (a total of 28 hours per week). Her work in that business included stock recording, employment of staff and contractors, health management of the herd, resource management, calf rearing, purchase and sale of stock, machinery and equipment and attending industry meetings and shows as a representative of the family. She had been raised on the farm by her parents and had significant experience and expertise in stock management particularly with reference to breeding up the herd. In this respect the deceased reared the calves and selected the best heifers for breeding for the purpose of increasing the value and quality of the herd and thus enhancing the reputation of the dairy. 21 The deceased was an accomplished horsewoman and utilised a horse for the purpose of attending to stock and carrying out inspections of the more remote parts of the property which could not be accessed by vehicles. Furthermore, there was an advantage in using a horse for the purpose of stock inspections as it permitted closer inspection of the cows that were less disturbed than if a vehicle was used for that purpose. The appellant's evidence was that the deceased placed as much importance on the care and health of the dairy herd as she did with respect to her children. At the time of her death there were approximately 200 head of dairy cattle comprising approximately 100 to 110 milking cows, the balance being calves, heifers and dry cows. 22 The deceased was intimately involved in the recording and registration of the stock as the farm was a registered Holstein stud. The animals were registered and a precise record kept of their pedigree and breeding their milk was tested to identify the highest yield of butterfat and protein. 23 As I have noted, the deceased was particularly skilled in herd management. Neither the appellant nor Matthew had those skills, the latter being mainly concerned with work as a dairyman, that is, herding the milking cows to the dairy, placing the cows in and attaching them to the milking machine and cleaning the equipment at the conclusion of the milking operation. According to the appellant, since the death of the deceased Matthew had taken over some of the work which his mother had previously performed but, due to his lack of skill and experience in herd management, the standard of the herd had significantly deteriorated. His evidence was that the farm had always been a large part of the deceased's life, and it was her ambition to ensure that it remained in the family and that the family tradition since 1896 of running a high-class dairy operation would continue. 24 In her judgment the primary judge was not prepared to accept that the deceased worked 28 hours per week in the dairy business. She reduced the figure to 21 hours per week up until June 2004. Thereafter her Honour found that there would have been a significant reduction in the deceased's hours as a consequence of the appellant's contribution to the running of the farm upon his retirement from the joinery business as well as Matthew's involvement in the computerisation of the record keeping associated with the farm. She therefore reduced the contribution of the deceased to the dairy farm business after June 2004 to seven hours per week. 25 In calculating the hourly rate at which the deceased's services should be assessed for the purpose of determining compensation, the primary judge adopted a rate of $37.50 per hour which the appellant did not challenge. Although the appellant originally challenged the primary judge's reduction of the hours contributed by the deceased to the operation of the dairy farm from 28 to 21, at the hearing of the appeal senior counsel for the appellant abandoned that challenge although he strongly maintained his challenge to the reduction of the deceased's contribution post-June 2004 from 21 to seven hours. 26 The fourth head of claim advanced by the appellant was based on the deceased's domestic services with respect to the running of the family home including work in the extensive garden and vegetable patch. Under this heading the appellant claimed that the deceased worked 25 hours per week providing housekeeping, cleaning, cooking and maintenance services to the house and grounds. Her Honour accepted that the deceased performed the role of wife, mother and homemaker with no hired help in respect of the family home, which comprised four bedrooms, two bathrooms and associated living spaces. Accordingly, the claim made for the loss of the deceased's household services was on the basis of 25 hours per week at a rate of $17 per hour. The figure of 25 hours per week was sourced from the appellant's evidence although in the Ordinary Statement of Claim (which was amended on a number of occasions but not relevantly for present purposes) the loss of past and future domestic services was claimed at the rate of "at least 20 hours per week". Nevertheless the appellant's evidence was that the deceased expended an average of 25 hours per week or three and a half hours per day in providing domestic services for the benefit of himself, herself and Matthew. It was claimed that the deceased devoted that time to the performance of domestic services which included maintenance of the house as well as its grounds and gardens. 27 Following the deceased's death, the appellant engaged the services of two housekeepers, Joan Smith and Carol Wiley. The former worked for four hours per week performing housekeeping duties whilst the latter did the shopping and cooked meals for approximately four hours per week. It was not suggested that they provided a complete replacement for the deceased's services. Thus the primary judge noted that the vegetable garden and orchard were no longer maintained. Her Honour found that although Ms Wiley did the shopping and cooking, she did not do so every day but only as a "stop gap". They were paid $35 and $50 per week respectively which the primary judge averaged at $10 per hour. 28 A significant issue arose during the course of the hearing which the primary judge regarded as particularly relevant to the appellant's credibility and which related to the amount of time that the deceased devoted to looking after her aged father, Mr Rally Heatherington, who resided in a separate dwelling on the dairy farm but who, since 1979 when he suffered a stroke which left him blind, was looked after by a full-time live-in carer, and also by a district nurse. Mr Heatherington died in August 2000 at the age of 91 years. Although he had been totally blind since 1997 his health was otherwise good. He was mobile and was able to go for walks attended by his carer. 29 It was common ground that the deceased was a loving and caring daughter to her father. The house in which he lived was 500 to 600 metres from the family home and adjacent to the dairy. It was also common ground that at some point in time there was a dispute between the deceased, her father and her brother which resulted in the latter being appointed power of attorney for his father. Some of the evidence would seem to indicate that this occurred in 1999 but, in any event, it did not occur long before the deceased's death. The issue that arose related to the extent to which prior to that time the deceased spent caring for her father. 30 The appellant contended that after 1997 the deceased did not spend much time with her father and that she provided minimal benefits and services to him given that he had the services of a full-time carer and a district nurse who catered to his physical and medical needs. It was contended that the deceased, although regarding herself as responsible for her father, acted only in a supervisory capacity. According to the appellant, the deceased was close to her father but did not spend much time at his house. On the other hand, Mr Heatherington attended at the family home at least once a week, usually on a Sunday, to eat with the family and watch rugby league on television with the appellant. 31 The respondent contended that the appellant had deliberately underestimated the extent to which the deceased was involved with the care and welfare of her father alleging that this in fact occupied some hours per day. Consequently he submitted that her Honour should find that the appellant had exaggerated the number of hours devoted by the deceased to both the dairy business and her domestic chores, as she would have spent many of them in caring for her father.

The findings of the primary judge 32 As I have already observed, the primary judge accepted the appellant's claim with respect to the deceased's management of the units in Tathra in the sum of $4865. However, she rejected the claim in respect of the joinery business and significantly reduced the claims with respect to the deceased's contributions to the dairy business on the one hand and her domestic services on the other. 33 According to the primary judge, the appellant in his evidence maintained that the deceased devoted 70 hours per week minimum to the joinery business, the dairy, managing the units and performing domestic services. This averaged out at 10 hours per day in circumstances where the primary judge found that the deceased's day commenced at 6.30am and ended when she normally retired to bed at 10pm. Accordingly, her Honour found (at Red 106V-W) that: "If the deceased performed the functions as evidenced by the plaintiff and her son, she was an exceptional woman who had a great deal of energy and was selfless, she clearly spent no time on herself despite having some 7 hours a day unaccounted for by her husband and son." 34 It is not clear how the primary judge determined that some seven hours a day were unaccounted for: on the basis that the services she performed averaged 10 hours per day and that her waking day was 15½ hours, then there were five and a half hours unaccounted for which, no doubt, she was free to spend on herself or on other personal pursuits. 35 As I have already observed, the appellant's evidence as recorded by the primary judge was that the deceased worked in the joinery business for 20 hours per week, in the administration and letting of the Tathra units for seven hours per week, in the dairy business for 28 hours per week and for 25 hours per week in the provision of domestic services, a total of 80 hours per week as distinct from the minimum of 70 hours per week found by her Honour (at Red 106 P-Q). On an average daily basis, the difference between 70 and 80 hours per week is between 10 hours and 11.4 hours per day. However, it is appropriate to proceed upon the basis of her Honour's own finding that on the evidence of the appellant, the deceased performed the relevant services for a minimum of 70 hours per week or an average of 10 hours per day. 36 Leaving aside for the moment the primary judge's findings as to a reduction in the hours the deceased would have spent providing the relevant services after June 2004 when the appellant retired, there does not seem to have been any dispute that the deceased worked in the joinery business for 20 hours per week; nor, as I have already observed, was there any dispute that she worked seven hours per week in respect of the Tathra units. Her Honour found that at the time of her death the deceased worked in the dairy farm business for 21 hours per week rather than 28. As I have already indicated, that figure is no longer the subject of challenge. 37 The major challenge was to the appellant's evidence that the deceased spent 25 hours per week in providing domestic services. The primary judge (at Red 109F) found that this claim had been "exaggerated" by both the appellant and Matthew and that their evidence with regard to the amount of domestic duties provided by the deceased and their lack of contribution thereto was "unreliable" (Red 109 N-O). She criticised the appellant as being reluctant to admit that the deceased spent time with her elderly father providing services over and above those provided by the paid carers in addition to what she ordinarily did around the house for the appellant and Matthew. That time (with her father) would, according to her Honour, have further added to her waking hours each day. She regarded the appellant's evidence as contrary to that of Matthew who said "his mother spent quite a bit of time with her father and he assessed that time as half an hour a day every couple of days" (Red 109R). 38 If this evidence of Matthew is to be accepted, as apparently it was, then it would amount to approximately two hours per week which was consistent with the appellant's evidence that the time spent by the deceased in caring for her father up to the time of her death was "minimal" compared to the hours she devoted to the other services to which I have referred: see Black 53P. 39 Her Honour further held (at Red 109T-U) that if she was to accept the appellant's and Matthew's evidence "I would be required to make a finding that neither of them are able to care for themselves in any way, that however, is contrary to their reluctant concessions made during cross examination."

The first part of this observation is difficult to follow whereas I shall return to the finding concerning " their reluctant concessions " and to the other credit findings of her Honour later in these reasons. 40 The primary judge also found (at Red 110 L-M) that the deceased worked "hand and foot" caring for the appellant and Matthew "but not to the extent claimed by them". She determined that a proper assessment of the hours spent by the deceased in the provision of domestic services was represented by the services provided by the paid housekeeper and cook (Ms Smith and Ms Wiley), together with some small additional hours which had been provided by those two women without pay. In this respect, the evidence was that they were paid for four hours per week each. 41 Her Honour concluded (at Red 110 Q-S) that she would only allow the appellant 12½ hours per week for the deceased's domestic assistance including gardening, but that this would be confined to the period from the date of her death until his retirement in June 2004, after which she reduced the number of hours to nine per week until his death. To this number of hours she applied a rate of $10 per hour based on the rates paid to Ms Smith and Ms Wiley and which she regarded as evidence of the rate at which housekeeping type services were provided in a rural area. Although the appellant originally challenged this rate (Ground 6 of the Grounds of Appeal), it was abandoned on the hearing of the appeal. 42 Her Honour rejected (at Red 108 W-109E) the appellant's claim with respect to the joinery business. She did so upon the basis that this business was a commercial operation and that the company was not merely a vehicle to minimise taxation. Furthermore, since the death of the deceased the business had flourished and the appellant's income had doubled. This was due to the fact that the appellant, after his wife's death, drew for himself an amount equivalent to the wages which she had earned when working in the business. He was able to do so as the arrangement he had made with his wife's replacement, a Mr Mossler, did not involve paying her a wage as she received payment in kind by having access to the business' computer for the purposes of assisting in the studies she was then undertaking. As the appellant was now drawing the wages that would have been previously paid to the deceased, it followed, according to her Honour, that the appellant had not sustained any loss as a consequence of the joinery business being deprived of the deceased's services. 43 This finding of the primary judge was challenged on the appeal (Ground 9 of the Grounds of Appeal) and it is convenient to dispose of it at this point. The basis of that challenge was that the income attributed to the deceased in the books of Bega Joinery was part of the overall family income from which the appellant and Matthew derived a benefit and, therefore, on her death represented a financial or material loss to the family. Given the factual foundation of her Honour's finding on this issue (which was not challenged), in my opinion this ground of appeal has no substance and should be rejected. 44 As I have already noted, her Honour found that after June 2004 the number of hours that the deceased would contribute to the dairy farm business would reduce from 21 to seven hours per week. In so doing, her Honour accepted (at Red 111 G-I) the deceased's "obvious love of the family farm" and that she would have continued to provide services for the duration of her life while she was able "although on a reducing basis as she aged, the very nature of farm work she would have been involved herself in being largely physical". 45 Furthermore, the primary judge found (at Red 111J) that upon the cessation of the joinery business in June 2004, the appellant, contrary to his assertions, would have contributed more towards the domestic chores as a consequence whereof the need for the deceased to provide those services would have reduced. Given that she was no longer required to spend 20 hours per week in the joinery business, her Honour found (at Red 111 L-M) "it more probable than not that she would have naturally chosen to spend more time with her daughters [in Sydney] reducing the time available to spend on the farm and domestic chores". Her life, her Honour found, would have changed following the cessation of the joinery business in June 2004. She thus found (at Red 111O-Q) that thereafter "… her hours would have been significantly reduced by the contribution of the [appellant] upon his retirement, the involvement of Matthew …In the computerisation of the record keeping and doing the best I can I assess her contribution in the order of 7 hours per week until what would otherwise have been her death assessed on the life tables."

The primary judge's findings with respect to the appellant's and Matthew's credibility 46 At a number of points in the primary judge's judgment, she made adverse findings of credibility with respect to the appellant and his son. Thus, when dealing with the issue of the time the deceased spent with her father, her Honour found (at Red 106C-D) that the appellant "appeared reluctant to volunteer evidence regrading (sic) the deceased's relation and involvement with her father." 47 Again, when dealing with the appellant's claim with respect to the deceased's domestic services, her Honour found at Red 109F, as I have already observed in [37] above, that that claim was "exaggerated". Furthermore, she found the appellant's and Matthew's evidence with regard to the amount of domestic duties provided by the deceased, and their own lack of contribution thereto, to be "unreliable". Her Honour considered (at Red 109 O-P) that the appellant "in particular was reluctant to admit that his wife spent time with her elderly father providing services over and above those provided by paid carers in addition to what she ordinarily did around the house for him and their son". 48 In the same context, and as I have already noted in [39] above, her Honour found that if she was to accept the appellant's and Matthew's evidence, she would be required to make a finding that neither of them was able to care for himself in any way and that this was contrary to their "reluctant concessions" made during cross-examination. I pause to observe that her Honour's assertion that her acceptance of the appellant's and Matthew's evidence would require her to make a finding that neither of them were able to care for themselves is illogical. A reading of their evidence makes it clear that each was perfectly able to care for himself and carry out domestic duties but simply did not need to do so because those duties were carried out for them by the deceased. 49 Immediately following the foregoing observation, her Honour (at Red 109V-110E) articulated her reasons for finding that the appellant's evidence with respect to his expectations of his wife's continued provision of domestic services had she lived was not credible: "The Plaintiff eventually reluctantly conceded that whilst he could not picture himself participating in the domestic chores he would help with the tasks the deceased normally carried out on the farm once they had both retired. He disputed the suggestion that the deceased would be entitled to sit back and take a well earned rest upon their retirement. Yet he was willing to concede that he did help in the orchard by pruning and spray and assisting with (sic) mowing tasks whilst the deceased was alive. He would not concede that he would assist with cooking meals, because that simply 'wasn't the way this was done'. However, he ultimately conceded that he was currently providing meals for himself and his son, he was physically capable, he was required to fend for himself during his national service. During cross examination he conceded that the deceased did not provide the plaintiff and his son with cooked breakfasts and that the son was capable of making his own breakfast before he went to the dairy."

The appellant's challenge to the primary judge's credit findings 50 After finding that the evidence of the appellant and his son with regard to the time spent by the deceased on providing domestic services to the family, and that their lack of contribution thereto was unreliable, the primary judge made the following assertion (at Red 109O-P): "The [appellant] in particular was reluctant to admit that his wife spent time with her elderly father providing services over and above that provided by paid carers, in addition to what he says she did ordinarily around the house for him and their son." 51 The cross-examination of the appellant relied upon by the respondent in support of this alleged reluctance on the appellant's part to make the admission referred to by her Honour was identified by him as being that at Black 50H-61S; 63L-65H and 66N-69F. Although it is true that the appellant's credibility was squarely put in issue during cross-examination (see in particular Black 59B-C and 68B), a careful reading of the totality of the appellant's cross-examination so identified does not, in my opinion, reveal any reluctance on the appellant's part to make the admission referred to by her Honour and which could legitimately be relied upon by her as reflecting adversely upon the appellant's credibility. 52 It is clear from a fair reading of that evidence that the appellant rejected on numerous occasions as being incorrect, questions which asserted that the deceased spent time with her father other than to a minimal extent compared with the time she spent on her dairy farm duties: see, for example, the cross-examination at Black 53C-Q. It is equally clear from the passages from the cross-examination relied upon by the respondent that the appellant in no way indicated reluctance when he appeared to readily agree with propositions put to him by the cross-examiner. His many answers agreeing with assertions put to him were made in the same straightforward manner as when he denied as correct other propositions that were put to him with which he disagreed. 53 In my view there can be no suggestion that the appellant's answers were other than clear and straightforward: there was no apparent prevarication of any kind. Where he disagreed with the proposition being put to him by the cross-examiner, he made that clear and at no time did he depart from those denials even though the questions were put to him on a somewhat repetitive basis. His answers were clear, straightforward and totally responsive to the questions he was being asked. In my opinion there was no basis in the transcript of the cross-examination relied upon by the respondent to support the finding by the primary judge that the appellant was reluctant to admit that his wife spent time with her elderly father providing services over and above those provided by paid carers in the sense that that reluctance, which is more accurately described as a refusal to admit, could be said to reflect adversely upon the appellant's credibility. 54 The primary judge also found in the same context that the appellant's evidence was contrary to that of Matthew who said that his mother spent quite a bit of time with her father which he assessed as half an hour a day every couple of days. The evidence relied upon by the respondent to support this finding is at Black 142J-143S and 150X-151I (in chief) and 166U-169I (in cross-examination). As far as Matthew's evidence in chief is concerned, no questions were directed to the issue except to the extent to which he agreed that the deceased would see her father when she came down to the dairy at approximately 7.30am to 8am in the morning but "not really often, but yeah, occasionally he would come down to the dairy or she would see him". 55 A comparison of Matthew's evidence in cross-examination at Black 166U-169J with that of the appellant on the same subject matter reveals that it is entirely consistent with the evidence in cross-examination of the appellant to which I have already referred. Both referred to the fact that the deceased transported her father to his local general practitioner, that she would sometimes provide care during the time when neither the carer nor the nurse were there, that occasionally she would accompany him in walks to the mailbox and that once a week she would have her father over to the house for a meal. Having agreed that the deceased was close to her father (as had the appellant), Matthew also agreed that his mother would try and spend quite a bit of time with her father which included seeing him at his house. However, when asked whether she spent quite a bit of time there with him, he responded: "I wouldn't say quite a bit of time, no, she'd probably spend half an hour with him every couple of days." 56 This answer was seized upon by the primary judge as being inconsistent with those of the appellant on the subject of the extent to which the deceased spent time with her father. But, as I have already observed in [38], half an hour a day every couple of days amounts to approximately two hours per week. Further, as the appellant said (at Black 53P), this was minimal compared to the time she spent on her other duties. In my opinion there is nothing in the cross-examination of either the appellant or Matthew on this subject matter to justify her Honour's finding that they and, in particular, the appellant exaggerated the time the deceased spent in providing domestic services to them. This is particularly so given that the respondent did not call Mr Heatherington's full-time carer who, one would have thought, could have provided first-hand evidence as to the time, such as it might have been, spent by the deceased with her father. 57 The appellant's evidence in chief was that the deceased would spend, on average, approximately 25 hours per week providing domestic services: Black 15B-E. He referred to the tasks performed by her in the provision of those services at Black 14S-15D; 19I-P; 25V-26C and 38B-42S. The cross-examination relied upon by the respondent in challenging the number of hours alleged to have been devoted by the deceased to the provision of domestic services was identified as being at Black 107H-109L and 123D-124M. The first of those references established no more than that on most if not all mornings the appellant and Matthew prepared their own breakfast. 58 The second reference established that the tasks performed by the deceased around the house would benefit herself as well as the appellant and Matthew; that the deceased swept and mopped the floors every day and that the appellant did not; that the deceased washed and cleaned up after meals including breakfast; that although the appellant was capable of making up the beds and washing, the deceased attended to those matters. 59 Much of the cross-examination suggested that the appellant would have contributed far more to the household after he retired from the joinery business in June 2004 and would thus have relieved the deceased from many of her domestic activities. That cross-examination is to be found at Black 79R-82S; 96C-98D; 99Y-104H; 112J-112W and 123D-124M. I have already referred to the last-mentioned of those references above as the respondent also relied upon it. 60 In the first of those transcript references, the appellant accepted that upon retiring from the joinery business he would have had more time to spend around the farm and to attend to household matters. He agreed that he would have wanted to help his wife out. However, when asked whether he would have wanted to give his wife a chance to sit back and take a well-earned rest, he responded, "that's not the way it was". The following (Black 80 H) exchange then took place (at Black 80M-Q): "Q. With you at home more and retired it'd be really you who would take up much more of the domestic situation and helping out because you were retired? A. No, I wouldn't picture myself in a domestic situation. I would help with the tasks that she would normally carry out on the farm. Q. But you'd also help around the house, wouldn't you and why would she need to get up so early and do these things as she's put it if you're at home and able to do these things? A. People have a routine which is hard to break and she may or she may not take an easier life." 61 After agreeing that the deceased was much younger than he, the appellant disagreed with the cross-examiner that on retirement he would have relieved his wife of the provision of financial management services for the farm and would have taken them over himself for her benefit. The following exchange then occurred (at Black 810-82L): "Q. You'd be able to give your wife a well earned sleep in and you could help prepare meals and so on, couldn't you? A. That's not the way it would be. Q. When you say that's not the way it would be, there's no reason why you couldn't have done that, is there by June 2004? A. It is a possibility but I don't see that happening. Q. When you say it's a possibility there's no reason why you couldn't do it is there? A. Hypothetical, it's a hypothetical thing that you're putting to me. Q. We know its hypothetical because unfortunately -- A. I know my wife and I know that she would have liked to see the farm prosper not -- … A. And not stagnate. Q. There's no question of her stagnating or the farm prospering. There's no reason why you couldn't have looked after her domestically seeing you have retired? A. Yeah, I don't agree. Q. There's no reason why it couldn't be is there? A. Yeah, I agree there's no reason for that. Yes, there is a reason, of course there is a reason. Q. I suggest to you there's no reason. A. I don't agree with that. Q. You're physically and mentally capable. A. My house was ruled by a woman." 62 In the second reference referred to above (Black 96C-98D), the appellant agreed that with all the deceased was doing she would have been "pretty tired" (Black 96 J-K). However, he said that she had been doing it every day for "quite some years" (Black 96 M). He agreed that he would want to help her as much as he could after he retired by doing the things she could not. The cross-examination then continued (Black 96 T-X): "Q. Well you say things she wasn't capable of she would have been pretty tired wouldn't she, naturally enough? A. She was a very fit woman and - no I don't agree with that, no. Q. And she was someone who had outside interests didn't she? A. That's right."

This reference was to her interest in the local pony club, church groups and fairs that she attended on occasion. 63 At Black 98 the appellant disagreed with the proposition that once he had retired from the joinery business he would have expected the deceased to want to go out more, although he accepted that there would have been occasions when she would have wanted to stay with her children in Sydney. He further agreed (Black 99 F-G) that she enjoyed travel and that when they retired she would have "jumped at the chance" to go away and do other things which she had been unable to do prior to their retirement. 64 The appellant was then cross-examined as to what he would have done after his retirement from the joinery business. He observed that as he was a cabinet maker/joiner his wife had a wish list of items she wanted, such as furniture, which he would have concentrated on making at the Bega Joinery factory as a hobby. At Black 102 F-G, when asked whether it was his intention to have done more around the house when he retired, the appellant responded "not necessarily". When taxed on that answer he said that his interest would be to help the family as a whole as well as his wife. The following exchange then occurred (at Black 102L-V): "Q. But that wish list wouldn't in any way have prevented you from doing cooking for yourself or her could it? A. I don't agree in any way with that statement. … Q. And it wouldn't have prevented you from doing things like ironing or sweeping or mopping would it? A. Physically I would be capable of doing that, the last time I fended for myself, sorry Your Honour, I will just answer the question. Q. The last time you fended for yourself was when? A. National Service in 1957. Q. Well no disrespect again but in terms of sweeping or mopping it's not a learned skill is it? A. No it's not. Q. There's no reason why you couldn't and wouldn't do that about the house? A. I could do it but I couldn't see myself in that role." 65 The primary judge apparently concluded (at Red 109Y-110C) from the foregoing evidence that it involved an ultimate concession upon the part of the appellant that he was currently providing meals for himself. But his son and that he was physically capable of fending for himself having done so during his National Service. I do not regard the manner of his response to the questions asked of him on this subject as involving reluctance to concede anything. Further, the so-called concession is hardly a firm foundation, even in part, upon which to support a serious finding adverse to the appellant's credit. 66 The appellant was further cross-examined as to his ability to cook. He accepted, naturally, that he currently provided meals for himself but when asked whether he was able to cook before his wife passed away, he responded (at Black 103T-U) that his "wife's comment was that 'Peter could not boil water' ". Again, the primary judge concluded (at Red 109Y) that the appellant would not concede that he would assist with cooking meals because that simply "wasn't the way this was done". However, it is clear from the evidence to which I have referred that the appellant willingly accepted that he prepared his own breakfast, had little in the way of cooking skills and, most importantly, in their household it was the deceased who undertook the obligation of preparing meals for the family. 67 It is apparent from the evidence that the deceased regarded household tasks as her sole responsibility - which is not surprising given her country upbringing in the 1950s and early 1960s. Even the primary judge accepted (at Black 110L) that the deceased worked "hand and foot caring for [the appellant] and their son". However, she did not accept that the deceased did so to the extent claimed by them. That finding was very much based upon her adverse determination as to their creditworthiness which, in turn, was based upon her findings as to the appellant's reluctance to make concessions under cross-examination. But there were no indications that the so-called concessions relied upon by her Honour were made reluctantly and, in any event, they related to essentially immaterial admissions. 68 At Black 112, after saying that he would hand over the farm to Matthew after June 2004, the appellant was asked whether he and his wife's involvement at the farm would become somewhat incidental. He disagreed, saying (at Black 112 O-P)that his involvement would "become much more". The following exchange then occurred (at Black 112S-W): "Q. Come June 2004, you would have had much more time to dedicate, to relieve your wife of her involvement on the farm? A. No, that's not right. Q. Why not? A. Janet's particular skills were with - Janet's particular skills were with young stock. Birth recording, breeding and my efforts would be directed towards fencing and other improvements." 69 At Black 113 L-O the appellant agreed that Matthew was proficient with computers and that it was necessary for the dairy business to computerise its record keeping. When it was suggested to him that as a consequence of this changeover in the method of record keeping the deceased would have been less involved in the compilation and preparation of the dairy farm's records, he responded (at Black 114 E-F) that "the compiling of the necessary data would still be Janet's and the operation of the computer would be Matthew's". At Black 114), the appellant said, to the same effect, that his wife would still have been required to compile the data for Matthew to process through the computer. The appellant was then asked (at Black 114 V-W): "Q. To the extent that there was any compilation still by your wife, she was preparing Matthew for the taking over of the farm was she not? A. No I would see her role as not changing." 70 Finally, when the appellant was challenged at Black 122 V-Y that the work that the deceased performed around the household for the benefit of herself, the appellant and Matthew would not have taken 25 hours per week, he responded "It would have taken slightly less than 25 hours a week if you factored my wife out of that".

Conclusions with respect to the appellant's challenge to the primary judge's credit findings 71 The foregoing analyses of the evidence relied on by the respondent as the foundation of the primary judge's credit findings lead me to the conclusion that there was no evidentiary basis for the primary judge's conclusion (at Red 109T-U) that "If I were to accept the evidence of the [appellant] and his son, I would be required to make a finding that neither of them are able to care for themselves in any way, that however, his contrary to their reluctant concessions made during cross-examination." 72 In my view there were no "reluctant concessions" of the nature of those found by her Honour. Moreover, acceptance of the appellant's and Matthew's evidence did not require her to make a finding that neither of them were able to care for themselves. It is clear that they were indeed able to care for themselves but that this was unnecessary as the deceased considered it her responsibility to provide for their care. The latter fact does not in any way militate against the appellant's and Matthew's evidence that the deceased voluntarily provided those services in the manner and to the extent described by them. Furthermore, as the authorities to which I refer below demonstrate, the question of need on the part of the appellant or Matthew in respect of the services gratuitously provided by the deceased is irrelevant in determining the value of those services when they have been lost as a consequence of the death of their provider. 73 Further, a consideration of the foregoing evidence does not reveal "reluctant concessions" on the appellant's part that whilst he could not picture himself participating in the domestic chores, he would help with the tasks the deceased normally carried out on the farm once they had both retired. Contrary to her Honour's finding, the appellant did not dispute the suggestion that he and the deceased would be entitled to sit back and take a well earned rest upon their retirement: what he did say when asked (at Black 80H) whether he would want to give her the chance to sit back and take a well earned rest, was "that's not the way it was". 74 It is clear from this evidence that, firstly, the appellant did not regard himself as being involved in the domestic activities of his wife and, secondly, that in any event his wife ruled the house and he had no reason to believe that after their retirement from the joinery business that position would not remain the same. 75 I am conscious of the restrictions placed upon an appellate court in reversing credit findings of a trial judge. The relevant authorities are cited by the High Court in Fox v Percy (2003) 214 CLR 118. As was noted by McHugh J in that case at 146-147 [90] "It is a serious mistake to think that anything said in Abalos or Devries necessarily prevents an appellate court from reversing a trial judge's finding which is based, expressly or inferentially, on demeanour. Those cases recognise - in accordance with a long line of authority - that it may be done. But there must be something that points decisively and not merely persuasively to error on the part of the trial judge in acting on his or her impressions of the witness or witnesses." 76 In the present case the primary judge did not, at least expressly, rely upon the appellant's or Matthew's demeanour in coming to her credibility findings. Rather, she seems to have relied upon the fact, certainly so far as the appellant was concerned, that he was reluctant to make concessions. But even if demeanour inferentially played a part in her findings, it is to be noted, as Gleeson CJ, Gummow and Kirby JJ said in Fox v Percy at 128-129 [30], that "it is equally true that … other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses." (citations omitted) 77 Furthermore, it is insufficient for an appellate court "by ritual incantation about witness credibility" to avoid its duty to exercise its judgment both on the facts and the law: Fox v Percy at 128 [29]. As the joint judgment in that case emphasises (at 126-127 [25]) "Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect'." (citations omitted) 78 In the same vein, an appellate court must acknowledge the constraints upon its capacity to disturb the decision of the trial judge encapsulated by Gleeson CJ in Swain v Waverley Municipal Council (2005) 220 CLR 517 at 519-520 [2] in the following passage: "In the common law system of civil justice, the issues between the parties are determined by the trial process. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal. Most decisions of trial courts are never the subject of appeal. When there is an appeal, the appellate court does not simply re-try the case. Depending on the nature of the appeal provided by statute, courts of appeal act according to established principles by which their functions are constrained. Those principles reflect the primacy of the trial process and the practical limitations upon the capacity of a court which does not itself hear the evidence justly to disturb an outcome at first instance. Trial by jury carries with it significant limitations of that kind." 79 Again, in Rosenberg v Percival (2001) 205 CLR 434 McHugh J, after referring (at 447-448 [38] and [39]) to passages from the judgments in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, 482-483 which highlighted the advantage enjoyed by the trial judge in hearing and seeing the witness, remarked (at 448 [41]): "One of the consequences of the 'advantage' of seeing and hearing the witnesses is that the trial judge is in a far better position than an appellate court to know what individual weight should be assigned to the various factors - credibility, matters for and matters against - that must be evaluated in making the ultimate findings of fact in the case. Where a finding is based on credibility and other facts support the finding , the case would need to be exceptional before an appellate court could set aside the finding on the ground that, judging by the transcript, the trial judge gave insufficient weight or consideration to other facts and circumstances in the case. The common law tradition is an oral tradition. Trial by transcript can seldom be an adequate representation of an oral trial before a judge or an oral trial before a judge and jury." (emphasis added) 80 In the present case, I have sought to demonstrate that the "facts" or "objective considerations" relied on by the primary judge to support her findings on credibility do not stand up to analysis and are not, in my opinion, supported by other facts in the case. Furthermore, those findings were not expressed by her Honour to be "founded on scrutiny of a witness giving evidence": Rosenberg at 488 [162] per Kirby J. In any event, as Kirby J went on to observe in that case (at 488 [163]) (omitting footnote references): "I have stated in SRA that, in my opinion, judges of trial should be slow to rely upon impressions derived from such observations, given the very strong doubt that is cast on the safety and reliability of such impressions by a now substantial body of scientific evidence. Contemporary judges in Australia know about such dangers where the English judges of the nineteenth century, who voiced their faith in the reliability of judicial observation, did not. This is why most judges, and equivalent decision-makers, today endeavour to rest their conclusions, as far as possible, on objective considerations, contemporaneous facts and logical inferences, rather than a self-claimed capacity to tell truth from falsehood by visual or aural impression." 81 More recently, Kirby J, with the agreement of Gleeson CJ, returned to this topic in CSR Ltd v Della Maddalena (2006) 80 ALJR 458. At 466 [23] (omitting footnote references) his Honour observed: "It would be a misfortune for legal doctrine if, so soon after Fox v Percy corrected the non-statutory excesses of earlier appellate deference to erroneous fact-finding by primary judges, the old approach was restored, as, for example, by reversion to the previous formulae about the 'subtle influence of demeanour' that could have affected the primary judge's conclusion, even though no express reference was made to such consideration. A survey of the history of the approach by this and other appellate courts to the principles of appellate review bears witness to varying attitudes over time to questions of this kind. However, this Court should not now restore the pre- Fox v Percy approach. It has no foundation in the statutory provisions governing intermediate courts. On the contrary, it frustrated the performance by those courts of their statutory obligation to conduct an appeal by rehearing. It would involve such courts returning to non-statutory inhibitions upon the provision of appellate relief based on nothing more than the suggestion that the present 'one case' in which (by inference exceptionally) 'the subtle influence of demeanour' cannot be overlooked. If that proposition is sustained, the important gain of Fox v Percy stands in peril of being lost. This Court would then re-endorse a serious impediment to the performance of the jurisdiction and powers of intermediate appellate courts in Australia. This should not be done." 82 As I have noted in [76] above, the primary judge did not, at least expressly, rely upon the appellant's or Matthew's demeanour in coming to her credibility findings. Given the expressed basis upon which her Honour made her findings as to the creditability of those witnesses, it may well be that she had in mind the same concern that Kirby J later articulated in Della Maddalena (at 470 [44] and [45]) that any revival of the notion of an unexpressed and unstated "subtle influence of demeanour" would be inconsistent with the new emphasis contained in the High Court's reasons in Fox v Percy. His Honour accepted (at 470 [46] (omitting footnote references) that: "a judge cannot, in his or her reasons, expound all of the considerations that influence the decision in hand. '[T]ime and language do not permit exact expression' of every factor that has contributed to a judicial decision. However, trial judges in Australia know the common disapproval of appellate courts of attempts to render trial conclusions appeal-proof by expressed reliance on the demeanour and appearance of witnesses where that is unnecessary or inappropriate. They also know the scientific unreliability of many such assessments. They are aware of the general desirability of founding judicial conclusions (as far as possible) on rationality and logic." 83 In Della Maddalena Callinan and Heydon JJ in their joint judgment were not prepared to go as far as Kirby J (and, for that matter Gleeson CJ), that the revival of the notion of an unexpressed and unstated "subtle influence of demeanour" would be inconsistent with the High Court's reasons in Fox v Percy. On the other hand, it would appear from the following paragraph in their Honour's judgment that reliance upon "the subtle influence of demeanour" requires careful consideration in each case before it is permitted to trump appellate intervention. At 492 [180] their Honours said: "There are cases in which the advantages enjoyed by trial judges over appellate courts are exaggerated. A complete written record, a degree of detachment from the trial itself, and the sum of the collective knowledge and experience of three or more judges may themselves on occasions place the appeal court in a superior position to that of the trial judge to decide the case. But this is not such a case. This is one case in which 'the subtle influence of demeanour' cannot be overlooked; it is a case in which it 'does not follow that, because [the trial judge] made no express reference to ... demeanour ... , demeanour ... played no part in [his] findings'. The position of the appellants' counsel before the Full Court and in this Court was that demeanour was not critical in determining credibility issues at trial, but that it could not be eliminated. In truth it must have been of some significance and, although the advantage which the trial judge had may have been reduced by the time between when he heard the evidence and when he gave judgment, it has not been shown to have been reduced to nothing. …" 84 However, the facts in Della Maddalena were very different to those in the present case and it is clear that Callinan and Heydon JJ relied on the fact that the trial judge had formed an impression of the respondent in that case by reference to certain video recordings and his reaction to those recordings when questioned by reason of delays, evasions or reluctance to answer the questions that were put to him. As their Honours noted, these were "all matters of especial relevance in a case of this kind and ones which only the trial judge, and not a court of appeal, could perceive and weigh against all of the other relevant evidence in the case."

I should add that the fifth judge in Della Maddalena, Hayne J, did not find it necessary to consider this issue. 85 Accordingly, although an appellate court is required to make proper allowance for the advantage of the trial judge in seeing and hearing the witness, if it concludes that error of the relevant kind has been clearly demonstrated, it is obliged to discharge its appellate duties in accordance with the requirements of the law. In the present case, the appellant's and Matthew's evidence was not challenged by any other evidence called on behalf of the respondent. Notwithstanding the lack of independent corroborative witnesses (other than from a Mr Mossler, who was a relief milker at the dairy), there was no evidence which conflicted with that of the appellant or Matthew. The challenge came only in cross examination, which was not backed up by any witness called on behalf of the respondent, for example, the deceased's father's live-in and full-time carer. No documentary evidence was relied on by her Honour or by the respondent on the appeal to support her credit findings. To adopt and adapt the observation of Kirby J in the last sentence of [46] of his judgment which I have set out above, in my opinion the primary judge attempted but failed to found her conclusions with respect to the credibility of the appellant and Matthew "on rationality and logic". I should, however, add the following further observations. As I have noted, the primary judge relied in making her credit findings essentially upon the alleged reluctance of the appellant to make concessions. A careful reading of the transcript does not bear this out. However, the written page of the transcript does not evidence, if it had been the case, lengthy pauses in the giving of answers by the appellant after a question had been asked of him in cross-examination which might be indicative of a reluctance to give a particular answer contrary to his interests. 86 But in the foregoing respect two matters must be noted. The first is that there is no suggestion by her Honour that such was the case, that is, that the appellant would pause for a time before he gave an answer which she regarded as indicative of a reluctance to provide an answer amounting to a concession. The second is that at least in the respondent's written submissions in chief and in reply to her Honour (and which form part of the material before this Court), there is no suggestion either of a reluctance to make concessions evidenced by pauses before the giving of answers which the cross-examiner might have considered to be against the appellant's interests or to make concessions otherwise. True there were some oral submissions at the close of the evidence that were not transcribed but, again, the respondent before this Court made no suggestion that the transcript did not tell the whole story. 87 Finally, I note that the primary judge reserved for nearly nine months. With respect, her judgment does not give the impression that in writing it she was assisted by having a transcript of the evidence. In fact the contrary would seem to be the case. Thus in the passage from her conclusion (at Red 109 Y) which I have set out in [49] above, her Honour says: "He would not concede that he would assist with cooking meals, because that simply ' wasn't the way this was done '. " (emphasis added) 88 The purported quote from the appellant's evidence which I have emphasised in the above passage is inaccurate. The correct quote is "That's not the way it was" at Black 80H and "That's not the way it would be" at Black 81O-P. It thus seems that her Honour was relying on her notes in which she had recorded the answer but not with strict accuracy.

89 The matters referred to in the two preceding paragraphs also tell against any relevant unexpressed and unstated reliance by the primary judge in the present case on the "subtle influence of demeanour". The delay of eight months between the conclusion of the evidence and the delivery by the trial judge of his reasons was regarded by Kirby J in Della Maddalena as a relevant factor when he said (at 470 [47]): "In fairness, I believe that this [founding judicial conclusions (as far as possible) on rationality and logic] was the approach that the primary judge took to the evidence in the present trial. In doing so, he may have been affected by the substantial delay (eight months) between the conclusion of the hearing and the delivery of his reasons. Such delay (as the Full Court noted) rendered the impact of any judicial recollection of the respondent's demeanour unlikely to be such as would "justify any credibility findings on that basis". 90 I emphasise that the above observations are not intended as a criticism of her Honour, given the pressure and resource constraints, especially with respect to obtaining transcripts, under which judges of the District Court operate. But the apparent lack of a transcript when preparing a judgment some nine months after the final written submissions were filed and nearly 10 months after the oral evidence concluded, does point to the dangers of relying on memory and, no doubt, some notes made at the time, when making serious adverse credit findings founded on the nature of the reasons which her Honour adopted. 91 In my opinion, therefore, no proper foundation was established in her Honour's reasons which justified her in effectively wholly rejecting the appellant's and Matthew's evidence that the deceased, on average, spent approximately 25 hours per week providing domestic services to the family. In particular, there was no justification in her reasoning process for reducing that number of hours by half upon the basis that after the deceased's death the appellant engaged Ms Wiley and Ms Smith to provide cleaning, shopping and cooking services for a period of 8 hours per week. I appreciate that her Honour added a further 4½ hours per week with reference to "some small additional hours which have been provided by those two women without pay" (at Red 110N) but her determination to allow the appellant only 12½ hours per week for domestic assistance including gardening from the date of the deceased's death until his retirement in June 2004 involved an unjustified rejection of the totality of the appellant's evidence on this issue. 92 For the foregoing reasons and even after making due allowance for the fact that the primary judge had the advantage of seeing and hearing the relevant witnesses, in my opinion the primary judge misused that position of advantage and, therefore, erred in a manner which justifies appellate intervention to set aside her assessment of the appellant's loss which was based on, or significantly coloured by, her rejection of his and Matthew's evidence due to its alleged unreliability and exaggeration.

93 Three principles in the assessment of damages under the Fatal Accidents Act 1946 (UK) (Lord Campbell's Act) are relevant to the present case. The first is that damages are calculated by reference to the pecuniary benefits that could reasonably have been expected from the continuance of the life of the person whose death has triggered the claim. Relevantly, loss of an expected benefit is to be restricted to loss of direct financial support but may include the value of services the deceased would have provided around the home, or which would otherwise have supported the activities of the claimant. The point to be made is that such an assessment, given the death of the person who could provide direct evidence as to the services he or she would have provided during his or her lifetime, must necessarily contain an element of speculation: De Sales v Ingrilli (2002) 212 CLR 338 at 348 [14] per Gleeson CJ. Nevertheless, the court must do the best it can based upon the evidence of those who may be in a position, as a consequence of past experience and an historically close relationship with the deceased, to anticipate the services which the deceased might reasonably have been expected to continue to provide during his or her lifetime. 94 The second principle is that damages are to be calculated by balancing both pecuniary gains and losses resulting from death: Nguyen v Nguyen (1990) 169 CLR 245 at 247 per Brennan J; 253 per Deane J; 264 per Dawson, Toohey & McHugh JJ; De Sales at 347 [11] and, 350 [18] per Gleeson CJ. 95 Thus, in determining the "balance of the loss" for the purpose of determining the true nature and extent of the "injury resulting from [the] death to the parties", the savings made by the claimant in consequence of the death of the deceased must be taken into account. In particular, the fact that it is no longer necessary for a claimant to provide certain services which he or she may have otherwise provided to the deceased until his or her death must be compared to the benefits conferred upon the claimant by the deceased during the latter's lifetime: Nguyen at 247. 96 As I have observed, a claimant's loss of expected benefits is not restricted to loss of direct financial support but includes the value of the services the deceased would have provided such as domestic services. In this context the third principle relevant to the issues in the present case is that the appellant's entitlement to be compensated for the loss of the gratuitous domestic services provided by the deceased is in no way dependant upon his need for such services: Nguyen at 255. Thus in Nguyen, Dawson, Toohey and McHugh JJ in their joint judgment, after distinguishing a Griffiths v Kerkemeyer claim as being different in nature to a claim under Lord Campbell's Act, observed (at 263) (omitting citations): "By way of contrast, a claim for damages under Lord Campbell's Act is a claim for recompense for some tangible advantage which has been lost by reason of the death of the deceased. As Gibbs J observed in Ruby v Marsh in relation to a claim for damages sustained through the death of a husband and father, the loss occurred 'at the moment of death' and: 'The expectation of future benefit was destroyed by the death and no subsequent event can increase or diminish the extent of the pecuniary loss then suffered, although it is true that subsequent events may be relevant to the assessment of damages in so far as they render it unnecessary for the court to speculate about possibilities that may have existed at the date of death when the facts themselves have become known.' 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. Commonly the claim is based upon the loss of the financial contribution made by the deceased to the household and is referred to as a claim for the loss of a breadwinner. But 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. And as Gibbs J pointed in Seymour , if the services are housekeeping services there is no reason why a pecuniary value should not be placed upon them." 97 Again, their Honours further observed (at 264) (omitting citations): " Griffiths v Kerkemeyer has nothing to say about a claim under Lord Campbell's Act for damages for the loss of domestic services. As we have said, such a claim is not related to need. A husband claiming for the loss of housekeeping services by reason of the death of his wife may have no need of those services in that he may be able to perform them himself. But if he has suffered the loss he is entitled to recover for it and, as Gibbs J pointed out in Seymour , it does not matter whether he intends to use the damages to replace the services or not. As Jeffrey J observed in Naum v Nominal Defendant , the view that a widower should not recover damages where he replaces his wife's services himself: '… fails … to identify the loss in a case such as this for which damages are to be a compensation. A widower who loses the wife who looked after him suffers loss when he thereafter does without and fends for himself as much as such a widower who incurs expense by replacing the lost services with those of a housekeeper. The loss of the former may be less easy to compute, but a loss it is nevertheless. It is not the payment to a housekeeper which constitutes the loss: that is merely some evidence relevant to finding the financial measure of the deprivation which each of the supposed widowers has equally suffered. To regard the expenditure of money on such a replacement as a condition of the existence of a loss suffered by the widower which is capable of being regarded as a pecuniary loss is in the apt words of Sugerman J in Wilson v Rutter , 'to mistake the measuring rod for the thing to be measured'. Nor does the fact that the domestic services were provided gratuitously by the wife raise any question about the husband's entitlement to damages. Indeed, the loss is incurred, or is the more, because the services were provided gratuitously. In evaluating the loss in the circumstances, '[c]ompensation for the loss of a wife's gratuitously rendered domestic services should not be confused with the actual cost to the bereaved husband [of] providing substitute services. This no doubt affords a guide to the amount but the actual expenses of the plaintiff for a limited period are not necessarily its measure': per Sugerman JA in Rowe v Scanlan . … But the damages to be assessed are those suffered by the plaintiff and cannot always be equated with the cost of such help. The services formerly rendered by a deceased wife may not be capable of being reproduced faithfully by services which are commercially available and the scope and cost of the only services commercially available may be disproportionate in comparison with the scope and value of the services which were actually provided by the deceased wife. In circumstances such as that it will not be reasonable to regard the cost of substitute services as any more than a starting point in assessing a plaintiff's loss. Indeed, in cases where the disproportion is severe, the cost of commercially available services may offer no real guide at all. It must always be borne in mind that the damages to be assessed are those suffered by the plaintiff by reason of the death alone." 98 To the same effect, in De Sales v Ingilly, Gleeson CJ at 347-348 [13] observed: "A starting point for determining the pecuniary value of these [domestic] services may be the commercial rate for the provision of the services. … a husband whose wife worked full-time in the home might recover for the financial loss he suffers as a result of his wife's death, because her services were of value to him. Such an amount is recoverable even if the services are subsequently performed by the surviving spouse or a third party at no cost. With an aging population, the value of the care provided by one spouse to another may be of increasing importance; and it may be costly to replace."

99 As I have already indicated, the primary judge reduced the number of hours which, according to her, the deceased would have spent providing domestic services to the family after the retirement of herself and the appellant from the joinery business from 12½ hours per week to nine hours per week until the deceased's death. Again, this reduction seems to have been founded upon her Honour's rejection of the appellant's evidence that after their retirement from the joinery business there would have been no change to the deceased's regime with respect to the household including the hours that she devoted thereto. 100 Subject to the evidence in any particular case, it is pertinent to recall in this context the following observation of Mason P in Roads & Traffic Authority v Jelfs (1999) NSWCA 179, where (at [32]) in accepting 20 hours per week as a constant in the circumstances of the particular marriage in that case, his Honour observed: "However, it is not self-evident that a wife would spend less time looking after a husband as they both grew older. While her capacities would undoubtedly diminish with time, so too would his. Lifelong experiences of sacrificial service by one partner to another are unlikely to be jettisoned except under very pressing supervening incapacity. It is also possible that the hours spent by a wife in looking after a husband could increase rather than diminish over time." 101 In my opinion, the President's observations are pertinent to the present case. The appellant was nine years older that the deceased so it was likely than his capacities would diminish well in advance of hers. Furthermore, there is no doubt that the present case exemplifies what the President referred to as the "sacrificial service by one partner for another" which was "unlikely to be jettisoned except under very pressing supervening incapacity". If the evidence of the appellant was generally accepted, I would see nothing that would justify a reduction in the hours spent by the deceased in providing domestic services even after June 2004 which, on the relevant life expectancy tables, would be a for a further period of 11 years at which time she would only have been aged 69. 102 The primary judge made a similar reduction in respect of the hours that she considered the deceased would devote to the dairy business after June 2004. Although the appellant's evidence was that the deceased spent 28 hours per week in relation that business, her Honour reduced that to 21 hours per week up until June 2004 and the appellant abandoned any challenge to that figure. However, her Honour then found (at Red 111O-Q) that after the appellant's retirement from the joinery business, the hours the deceased devoted to the dairy would have been "significantly reduced by the contribution of the [appellant] upon his retirement, and the involvement of Matthew Walden in the computerisation of the record keeping"

as a consequence whereof she assessed the deceased's future contribution to the operation of that business to seven hours per week. 103 I have already referred (at [69] above) to the fact that computerisation of the record keeping by Matthew would not have obviated the need for the deceased to compile the necessary data for Matthew to enter into the computer. Furthermore, her Honour's finding that the appellant would increase his contribution to the dairy business after his retirement from the joinery business overlooks his evidence, if accepted, that he would continue his activities as a cabinet maker/joiner and that he would not have been involved in his wife's specialised activities with respect to the operation of the dairy business in which she had particular skills and experience with respect, in particular, to herd management. That this was so was corroborated by the appellant's evidence-in-chief which was not challenged, that since the deceased's death the quality of the herd had significantly deteriorated (see Black 22F-23S). Her Honour referred to this evidence at Red 106E-I. 104 Although the appellant accepted that upon his retirement he would assist with the tasks that his wife would normally carry out on the farm (Black 80N), he denied that he himself would become more involved in the areas in which she was an expert. As the appellant said (at Black 112V-W): "Janet's particular skills were with - Janet's particular skills were with young stock. Birth recording, breeding and my efforts would be directed towards fencing and other improvements." 105 The appellant also agreed that after their retirement from the joinery business, he would have expected his wife to do more travelling and to spend more time with her daughters in Sydney. Her Honour found (at Red 111L-M) that it was "more probable than not that [the deceased] would naturally have chosen to spend time with her daughters reducing the time available to spend on the farm and domestic chores". This finding was in contrast to her finding the preceding paragraphs that "because of the deceased's obvious love of the family farm she would have continued to provide services for the duration of her life whilst she was able, although on a reducing basis as she aged" in terms of the more physical aspects of the dairy activities. However, it is clear from that part of the appellant's evidence, which was not challenged, that the deceased was not involved with the more physical aspects of the dairy's operations except to occasionally pick up a small calf that was unable to walk and transport it on horseback. 106 Furthermore, it must be remembered that upon her retirement from the joinery business and upon the sale of the Tathra units, the deceased would have had a further 27 hours per week available to carry out activities unrelated to the home and the farm. Even if one accepted that there would have been no reduction in her domestic and dairy farm activities after June 2004, they would have only amounted to some 46 hours per week or some 6.5 hours per day on average. 107 In the foregoing circumstances, in my opinion no proper basis was advanced by the primary judge on the evidence, had it been accepted, to reduce the amount of assistance rendered by the deceased in the running of the dairy from 21 hours to only seven hours per week or one hour per day. In this context, it was not really in issue that the deceased was keen to ensure that the dairy farm did not stagnate, that it was financially successful and that the herd, both from the point of view of its breeding quality and milk quality, was maintained at the highest level. In these circumstances the suggestion that she would have only spent one hour per day on her farming activities was, in my opinion, well outside the range of any possible reduction which her Honour could have properly adopted based upon even the unchallenged evidence. 108 It follows from the foregoing that in my opinion the primary judge has erred in a number of respects that justify the appellate intervention of this Court to, prima facie, set aside her Honour's verdict.

(i) $31,625 representing a loss of 12.5 hours per week at $10 per hour from 27 August 1999 to 30 June 2004 (ii) $990 representing the period 1 July 2004 to the date of her Honour's reasons for decision of 9 September 2004 being $10 per hour for 9 hours per week. (iii) $51,500 representing 9 hours per week at $10 per hour being $90 per week x the multiplier on the 5% tables for the appellant's life expectancy at the time of his wife's death being just under 16 years, the 5% multiplier being 572.22. Farm Services assessed at $402,413 comprising: (i) $198,214 representing 21 hours per week at $37.50 per hour from 27 August 1999 to 30 June 2004 (ii) $2809 representing the period from 1 July 2004 to the date of her Honour's reasons for judgment (9 September 2004) (iii) $201,390 representing 7 hours per week at $37.50 per hour being $262.50 per week x 767.2 which is the 5% multiplier for a period of just under 26 years which would be the deceased's life expectancy at the time of hearing. 111 Two observations need to be made with respect to the above calculations. The first is that her Honour made no allowance for vicissitudes. The normal discount would be 15%. 112 It is not clear why her Honour made no allowance for contingencies as they were sought by the respondent and appeared, at least to some extent, to be accepted by the appellant in his written submissions made at trial. Certainly, in any recalculation of damages an allowance for vicissitudes of 15% would normally be adopted and this was not contested by the appellant in the Schedule of Damages, which he submitted to this Court as being appropriate to adopt if this Court was to reassess damages. 113 The second is that her Honour did not set off any sum in respect of any pecuniary gains to the appellant (such as benefits derived by him from his wife's estate) as a consequence of her death. However, this is not surprising given that in the appellant's written submission at trial, he submitted (at Red 56-58) that there should be no such set off (as any change was one of form rather than substance) except an allowance to reflect a modest saving on the deceased's keep amounting to no more than $120-$150 per week. In his written submissions at trial (at Red 72) the respondent essentially agreed with that submission.

What course should the Court now take? 114 As I noted in [10] above, the appellant submitted that if error be found sufficient to warrant the setting aside of the primary judge's assessment of damages, this Court should reassess those damages itself. On the other hand, as I noted at [11] above, the respondent submitted at that this course would be inappropriate and that a new trial should be ordered as the appellant and Matthew's credit was still in issue. 115 In my opinion there is force in the respondent's submissions. I have sought in these reasons to demonstrate that that her Honour erred in the findings she made to underpin her conclusion, which informed her assessment of damages, that the evidence of the appellant and Matthew was both unreliable and exaggerated. That is not to say that she was necessarily wrong in rejecting their evidence but that she could not do so for the reasons she gave. Accordingly, the respondent correctly submitted that this Court could not determine the still outstanding issue of the appellant's and Matthew's credit and that this could only occur in a new trial. 116 However, by virtue of Part 5, Rule 23(1) of the Supreme Court Rules 1970, the Court has no power to order a new trial on the ground of error of law or on any other ground unless it appears to it that some substantial wrong or miscarriage has been thereby occasioned. 117 Often the issue so posed arises where there has been a departure by the trial court from the rules of natural justice. The leading authority in such a case is that of the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141. In a joint judgment, the Court adopted (at [145]) the general principle as expressed by the English Court of Appeal in Jones v National Coal Board [1957] 2 QB 55 at 67: "There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his properly before the judge … No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it." 118 The joint judgment then stated what it regarded as an important qualification to that general principle (at [145]): "That qualification is that the appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge in the first trial. An order for a new trial in such a case would be a futility." 119 The Court then illustrated this qualification in its application to questions of law but, in its application to questions of fact, observed: "Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that the compliance of the requirements of natural justice could have made no difference." 120 The Court then held that the Full Court of South Australia had failed to apply the correct criteria if it was saying no more than that a new trial would probably make no difference to the result. The Court then concluded (at 147): "All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result."

See also, Escobar v Spindaleri (1986) 7 NSWLR 51 at 57-58; Peakhurst Inn Pty Ltd v Fox [2004] NSWCA 74 at [33]-[35]. 121 Of course, the rule is intended to recognise the need for finality in litigation and the desirability of avoiding the hardships which a retrial may cause. Thus, a new trial will not be ordered if the Court is satisfied that the error of the primary judge did not really bear upon the result. But if a trial properly conducted could possibly have produced a different and more advantageous result for the successful party on the appeal, then a new trial should be ordered. 122 In the present case there can be no doubt that the primary judge's errors bore directly upon the result. That is self-evident. However, it is the fact that the appellant received a not inconsiderable award of damages in the amount of $491,393. Furthermore, that sum was arrived at without her Honour discounting any item for vicissitudes or setting off any sum representing the relieving of the appellant of his obligation to provide financial support for the deceased. According to the appellant in his written submissions at trial, that sum should be between $120 and $150 per week. According to the respondent's supplementary submissions on the appeal, there should be an allowance of $350 per week. If the latter was accepted, the set off according to the respondent's calculations would amount to approximately $290,000. Furthermore, the respondent now submits that there should be a further allowance of $80,000 representing the appellant's gains from the deceased's estate. 123 The respondent therefore submits that if the foregoing matters were taken into account on a new trial, any reassessment, even on the basis of the acceptance of the appellant's and Matthew's evidence, would be no greater than the judgment sum determined by her Honour. Accordingly, in those circumstances, no miscarriage of justice has occurred. 124 On the other hand, as I have noted, the appellant tendered to the Court a Schedule of Damages which, it was submitted, this Court should adopt if it chose to reassess damages. Leaving aside the amount attributed in that schedule to the Bega Joinery business, it totals $1,366,646. Those figures allow for a discount of 15% for vicissitudes but make no allowance for any set-off. If the set-offs advocated by the respondent are factored into the above total, it reduces to approximately $996,000. The difference between that sum and her Honour's assessment is manifest. 125 Of course, it is mere speculation to assume that the appellant's Schedule of Damages would be accepted on a new trial in its entirety. The same observation can be made with respect to the respondent's calculation of what he contends are the appropriate set offs. All that this demonstrates is that one cannot predict with any confidence that on a new trial the appellant is unlikely to achieve a different and better result than he achieved before the primary judge. It must therefore follow that this Court cannot find that a new trial in which damages are assessed in accordance with law, could not possibly produce a different result to that determined by her Honour. Accordingly, in my opinion the errors of the primary judge which I have identified lead me to the conclusion that a substantial wrong or miscarriage has been occasioned to the appellant, justifying an order from this Court that there be a new trial to assess the compensation to which the appellant is entitled due to the wrongful death of his wife.

The orders which should be made 126 In view of my conclusions set out in the above reasons, I would propose the following orders: a) Appeal allowed. b) Set aside the judgment and verdict of her Honour Judge English of 8 October 2004 and in lieu thereof order that there be a new trial as to damages. c) The respondent to pay the appellant's costs of the appeal but to have with respect thereto a certificate under the Suitor's Fund Act 1951, if otherwise qualified. 127 BRYSON JA: The elements and the means of proof of the elements relating to damages under the Compensation to Relatives Act 1897 (NSW) are highly imponderable, demonstration of accuracy or failings in a particular assessment is unusually debatable, and these difficulties extend to the demonstration of error on appeal. 128 The issues and the relevant facts in this appeal appear from the judgment of Tobias JA a draft of which I have the advantage of having read. I adopt paras [7] to [45] of his Honour's reasons, except that I do not adopt the concluding references to credit findings in para [38]. 129 The appellant's claim that his late wife worked for a total of about 80 hours a week in ways which were very largely for his benefit was a very difficult claim to accept. It is not surprising that this was rated down in the Trial Judge's findings to about 60 hours per week. Looked at in general terms, this is quite a large number of hours per week to encounter in a finding about benefits conferred on the appellant as her husband. How the figures amounting to about 60 hours per week were reached in detail is not shown clearly by the Trial Judge's reasons, in particular how the claim of 25 hours per week in housekeeping led to a finding of 12.5 hours per week is not clearly shown. Of course, as with most elements in the calculation of damages for loss of dependency on death, the subject dealt with is imponderable and cogent reasoning is difficult to bring to bear. Specifically in relation to housekeeping, it seems clear that higher conclusions about the number of hours per week which Mrs Walden spent on housekeeping were available. However the overall result, and the attribution of about 60 hours per week to endeavours which benefited the appellant, are not unsatisfactory and in substance show a high level of acceptation of the appellant's claim. 130 It does not appear on the face of the judgment that there was any allowance for vicissitudes of the life of the late Mrs Walden, or of the life of the appellant, to which the expectation of continuing benefits was subject. An allowance of 15% is conventional when assessing damages for personal injuries, although it may not always be appropriate; the selection of an appropriate allowance is a matter for judicial decision, but in the present case it does not appear that there was any such allowance. The vicissitudes which call for consideration relate to two lives, not one, and the absence of any allowance must have unduly favoured the appellant in the assessment of damages. 131 The award relating to contribution to farm work appears to have assumed that the deceased would have continued to participate in farm work until she was aged 84 years and the appellant was about 91 years; and that both would have continued to be proprietors of the farm and business until then. 132 The assessment of the appellant's loss of his wife's contribution to the dairy business, which was $402,414.00, is very remarkably high. The figure was reached on calculations relating to the value of the time which she contributed to the dairy business and could be expected to contribute to it had she not died. Considerations of several kinds lead me to think that this is a very remarkably high assessment. These are her co-ownership and entitlement to a half share in the business, the profits and the business assets, and the appellant's having become the sole owner of all the capital assets of the dairy business, including land, cattle and dairy plant and equipment; also the history of the dairy business over recent years, in which, during drought, there had been net losses in the four years of which the evidence speaks, followed by a profit in the year 1999-2000 of $21,953.00. It seems very unlikely that the goodwill of the business, as distinguished from the capital assets, had a value as high as $402,414.00. The advantages which her prospective work in the business would confer on the owners of the business should not, on a reasonable evaluation, be as much as or exceed the present value of the business: that is the best available measure of the advantages of conducting the business in the future. 133 But further, treatment of the whole of the deceased's work related to the dairy business as a contribution to the economic well-being of the appellant appears to me to be unjustified, as in the hypothesis of her continuing to work in this way she would be a co-owner of the business and entitled equally with the appellant to profits and other advantages from conducting it, with, on the probabilities so far as they can be seen, an expectation of inheriting his interest from him or joining with him in conferring benefits on their son. 134 These factors make it impossible, in my opinion, to suppose that $402,414.00 was less than just, or that the total award of damages was less than just; there appear to me to be on balance far more reasons for thinking that the award may have been excessive. There is no cross appeal or notice of contention, and I regard this conclusion as very adverse to deciding, if it were otherwise appropriate to do so, that a new trial should be ordered. 135 At many points the appellant's case depended on acceptance of his evidence and credibility, and the Trial Judge's readiness to rely on his evidence is unusually important. The Trial Judge formed a generally unfavourable view of his credibility and said (Red 109F) to the effect that the claim in respect of domestic services was exaggerated, (Red 109O), and that the evidence of the appellant and his son with regard to the amount of domestic duties provided by the deceased and their lack of contribution was unreliable. Her Honour also said (Red 109P) "The [appellant] in particular was reluctant to admit that his wife spent time with her elderly father providing services over and above that provided by paid carers, in addition to what he says she did ordinarily around the house for him and their son … It is contrary to the evidence of Matthew Walden …". Her Honour also said (Red 109V) "The [appellant] eventually reluctantly conceded that whilst he could not picture himself participating in the domestic chores he would help with the tasks the deceased normally carried out on the farm once they had both retired." Her Honour said (Red 109Y-110B) "He would not concede that he would assist with cooking meals, because that simply 'wasn't the way this were done'. However, he ultimately conceded that he was currently providing meals for himself and his son, he was physically capable, he was required to fend for himself during his national service." 136 On my reading of the evidence of the appellant including the cross-examination, I do not see clear signs of exaggeration, unreliability or reluctance to make admissions or reluctant concessions. I do not see that the way in which the appellant dealt in evidence with his capacity to provide meals for himself and his son gave any real ground for dissatisfaction with his credibility. However I do not have the Trial Judge's advantages of hearing the appellant give his evidence and observing him as he did so, or the advantage of being in a position to assess the reliability of his evidence in relation to the conduct of the trial generally. It does appear to me that there could well be a basis for adverse views of the appellant's credibility to be taken in relation to his evidence on the care the deceased gave to her late father, and on the claims on her time and her activities in relation to the assessment of the amount of time she spent on domestic attendances. There are other aspects of his evidence which may well have contributed to the conclusion that his credibility was unsatisfactory; I mention his evidence relating to attempts to sell the Tathra units during the deceased's lifetime, the need to pay land tax, and how this need was resolved; these indeed are not matters which the Trial Judge herself mentioned. It is not really possible for me to know what impression these and other matters in his evidence created when the evidence was given. 137 The appellant's evidence in chief dealing with the Tathra Units was plainly not frank and complete in the following passage: (Black 36S-U) Q. In relation to the Tathra units, before your wife's death, what did you intend to do with those units? A. They were our - to be kept indefinitely as our superannuation. We bought them as new units and added to them, so yeah, we intended to keep them.

This answer did not refer to extended and unsuccessful efforts, including an auction, to sell the units, or to a need to sell associated with a heavy land tax obligation, which was resolved in some way which the appellant did not explain when asked. 138 There is ample room for the advantages that the Trial Judge, being present at the trial and hearing the evidence as it was given, to have played an appropriate part in the conclusion reached. The reading of the transcript does not in my opinion show that the Trial Judge made any inappropriate use of the advantages which she so enjoyed. I do not feel that there were satisfactory explanations expressed in the judgment for all the conclusions reached, but overall I do not think there is a good basis for concluding that the damages award was inadequate. 139 No consideration was given to any advantage which passed to the appellant from his becoming the owner of the business assets; during his wife's lifetime he was a co-owner with his wife, and these passed into his sole ownership. Their passage into his sole ownership is not an event which, on the broad view which is all that is available in claims such as this, was ever likely to happen, as he was some eight years her senior and her life expectancy was considerably longer than his. The business assets are the shareholding in the Bega Joinery Pty Ltd and the assets of the dairy business, including the land on which dairying was conducted, the livestock and the dairy plant and equipment; and an asset in the nature of goodwill of the dairy business or value attributed to its continuing conduct as a business. There is a similar element in respect of the Tathra holiday units, which were subject to a discretionary trust which they controlled; while the terms of the trust were being complied with it is difficult to think of them as co-owners of the trust property, but the trust does not seem to have been any impediment to Mr Walden's disposing of the Tathra home units and directing how the proceeds of the sale should be applied after Mrs Walden's death. The matrimonial home does not come under consideration in the same way. 140 The present appeal is not an appropriate occasion for applying principles relating to the impact of passage of ownership of assets to a surviving spouse. In written submissions to the Trial Judge (Black 237-239) the appellant's counsel contended that the change in ownership of assets was a change of form rather than of substance and that no reduction should be made for accelerated succession. In the respondent's written submission at trial this was accepted in principle, with qualifications relating to Bega Valley Joinery Pty Ltd. For this reason the Trial Judge gave no consideration to accelerated succession. If there were a new trial on the issue of damages it would be open to the respondent to take a different position, and to seek to lay an evidentiary basis for it. 141 In relation to passage of a matrimonial home owned by her husband to his widow it is a well-established general rule that no deduction to the widow's damages is made because the widow merely continues to enjoy as owner what she previously enjoyed as wife. This general rule, and the earlier decisions of the High Court which established it, were stated in Parker v Commonwealth (1965) 112 CLR 295 at 311 by Windeyer J. I set out Windeyer J.'s observations on this subject, and the following passage, at pages 311 to 312: By his will the deceased left his whole estate to the [appellant]. It consisted of the cottage and personalty valued at £1,332. So far as the former is concerned, the general rule that has been adopted in this Court has been to make no deduction because a wife on her husband's death has succeeded to what had been their matrimonial home - "when the widow merely continues to enjoy as owner what she previously enjoyed as wife": Zordan v Metropolitan (Perth) Passenger Transport Trust (1963) 37 ALJR 159, at p 161; see Carroll v Purcell (1961) 107 CLR 73; Peipman v Turner (1960) 78 WN (NSW) 362 (See note 35 ALJR 139) It may be proper in some cases to take into account the value of a house, at least to the extent of the acceleration of succession to an absolute and irrevocable interest. In this case, however, I think the general rule should be followed and the house left out of account.

I turn then to the personal property left by the deceased. The reported cases seem to show that, speaking generally, personalty in the form of savings and investments by a husband to which his wife succeeds on his death is not to be regarded in the same way as her succession to the matrimonial home. I do not think that there is any "strictly proper approach" to this question. I fully share the doubts that Kitto J expressed in Public Trustee (WA) v Nickisson (1964) 111 CLR 500, at pp 505, 506. But in the present case the question really does not arise except in respect of an amount of £82 that was in a Savings Bank account in the husband's name. This was the proceeds of a taxation reimbursement. I do not think it should be taken into account. There is no reason for supposing that the husband was making savings in the ordinary way as investments. The wife in effect made savings out of his earnings and spent them mainly in the purchase of things for their home, that is for their common enjoyment. In any event the item is too small to weigh much in the scale. 142 Windeyer J. went on to deal with several other items of property, in terms which showed that his Honour did not regard them as subject to a clear or concrete rule, and allowed a small part of one of them. 143 Windeyer J.'s judgment is inconsistent with there being a rule to the effect that passage of ownership of property between spouses is to be disregarded. In my opinion there could be no legal principle to that effect, and I have not seen the attribution of such a rule to principle. 144 In Gillett v Callagher [1963] ALR 392 the deceased had by a will given rural property to his widow and children and (393) … the learned trial judge took the view that the benefits accruing under the will to the wife and children of the deceased would enable them "to continue to [live] in at least the same style as hitherto" with the added benefit to the wife "of herself [having] control of her share of the estate's income".

The High Court set this decision aside and awarded damages, saying (394) that the decision took no account of two things: [First], the indications plainly are that had he lived the family fortunes would have continued to improve with a corresponding increase in the standard of living which the wife and children would have enjoyed and with the strong probability that at the end of his life the deceased would have made adequate provision for them by his will. Secondly, the loss of the deceased's management of the family concern will have to be replaced if it is to succeed. The fact that as a result of his premature death his testamentary dispositions took effect earlier than would otherwise have been the case is a matter to be taken into account in estimating the extent of the pecuniary loss which the wife and children have suffered but, on the facts in the present case, it would be wrong to regard the acceleration of those dispositions as outweighing the other considerations to which we have referred. 145 The High Court's reasons include a plain statement to the effect that the acceleration of the testamentary disposition and the receipt of testamentary benefits is a matter to be taken into account. 146 Public Trustee (WA) v Nickisson (1964) 111 CLR 500 related to a claim for damages by a child of seven years of age, the only survivor in his family, for the death of his father. The father's estate had passed to the appellant; the estate was worth about £2750 (disregarding insurance moneys) and the dependency was assessed (by Kitto J.) at £5000: see page 505. Kitto J. (see page 506) was of this view: ... 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 £2750 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 £1000 should be deducted from the damages otherwise allowable. 147 In Rowe v Scanlan [1969] 1 NSWR 43, the appellant claimed damages for the death of his wife, and one item claimed related to household furniture which the wife was purchasing out of her earnings; the couple did not own a matrimonial home. The Court of Appeal of New South Wales (Herron CJ, Sugerman and Asprey JJA) were of the view (p46) that no deduction should be made with regard to the husband's acquisition of the furniture; their Honours referred to the general rule stated by Windeyer J. in Parker v Commonwealth and said "that general rule, applicable to the matrimonial home, would appear to be of equal force in relation to what may be termed the matrimonial furniture." 148 Senior counsel for the appellant referred, in written submissions at trial, and again on the appeal, to Lewis v Dalton (1986) Aust Torts Report 80-045. McPherson J. dealt with a dependent widow's compensation for future earnings and savings of the deceased, and also dealt with accelerated vesting of the deceased's estate (see pages 67,903, 67,904). The assets of which there was accelerated vesting were a house, fishing vessels, some money in a joint bank account and a deposit in a building society. McPherson J. said at 67,904: The benefit to Mrs Lewis of these items lies, if it exists at all, only in the fact that formerly she owned those items jointly with her husband and now, as a result of her husband's death and the disposition in her favour under his will she owns them solely. Having regard to the way in which the parties lived their married life and pooled their resources I find it difficult to see that any real benefit has accrued to Mrs Lewis as a result of the early death of Mr Lewis, at least in relation to those assets. She has, in substance, now no better or greater access to or control of those assets than she had before his death, or, if she has any greater access or control, it is, in my view, really not capable or worthy of assessment in money terms. In relation to this question I am disposed to follow the decisions cited to me … of Daniels v. Jones (1961) 1 W.L.R. at p. 1103; Gullifer v. Pohto (1978) 2 N.S.W.L.R. at p. 353, and Cornish v. Watson (1968) W.A.R. at p. 198. 149 In Daniels v Jones (1961) 1 WLR 1103 12.5% of the value of assets which the appellant widow inherited from her late husband was brought into account in the deduction in the assessment of damages; this was affirmed on appeal. 150 Gullifer v Pohto [1978] 2 NSWLR 353 at 361 and following related to accelerated benefit of inheritance by young children of assets of their mother. The Court of Appeal gave extended consideration to the means and difficulty of assessing the claims of each individual claimant and in the course of doing so said (364-365): A substantial early inheritance, particularly from a mother where a home and supporting father remains, falls into a somewhat different category from the early acquisition by the widow of the title to the family home in which she would have lived in any event. So long as the law remains that benefits, such as estate benefits, are to be brought to account, their value must be assessed and, in proper cases, by the guide of any relevant calculation. 151 The appellant's senior counsel also referred to Kuhlewin v Fowke [2000] QSC 404 (Mullins J). 152 It has been clearly established that inheritance by a widow of a family home, and the furniture in the family home, from her husband is not treated as a deduction in calculating damages. This general rule was established in cases where the facts were relatively uncomplicated, the marital relationship was stable, the wife was supported by the husband as sole breadwinner and there were few if any assets other than the matrimonial home. Its underlying basis is the probability or fair certainty that the wife would have enjoyed the practical advantages of use of the matrimonial home if the husband's life had continued, and the passage of ownership to her has no impact on this. This general rule may not be applicable to all assets which pass to widows, or to other claimants such as dependent children, or to widowers; nor is it a general rule applicable to investments, business assets, or assets other than the matrimonial home and its furniture. In cases other than the passage of the matrimonial home and furniture to the widow, the facts, imponderable as they often are, must be examined as closely as they can be in the circumstances to see whether there are reasons why the prima facie advantage of inheritance to property rights should be brought into account, or should not be brought into account, or should be subjected to some analysis to ascertain the value of the acceleration. 153 In the present case the assets were co-owned (although the exact details of title were not established in relation of the dairy farm), as well as the matrimonial home there were two other houses and also a dairy farm on the farm property, there were other business assets, and the appellant was some eight years older than his wife, and on ordinary life expectancy tables could not have expected ever to have inherited the property. If the facts had been considered on a proper basis, it might well have appeared that the concession made at the trial was inappropriate. However as I said earlier, the present is not an appropriate case for consideration of these principles on appeal; yet a new trial might re-open their consideration. 154 I do not see a new trial, if granted, as likely to produce any result more favourable to the appellant than that against which he has appealed. If contrary to my opinion it were right to accede to the appellant's case on appeal, a new trial is unlikely to assist him. The respondent does not cross-appeal and has no claim to be given a new trial. In my opinion the Court of Appeal should dismiss the appeal with costs. **********

Walden v Black

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Before

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Judgment (48 paragraphs)

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Legislation Cited (1)

Cases Cited (17)

Cited By (2)