Assessment of damages for death

Death

[See also Wrongful Death]

 

Articles

Kutner P, ‘Reforming Wrongful Death Law’  (1999) 7 Torts Law Journal 46

 

Children (of)

Hole v SGIC 4/5/90 [1990] SADC 1591 Burnett J – P(f) homemaker injured MVA July 1985 when 25 (29 at trial). Fractured pelvis, involving a separation of the front of the pelvis and of the sacro-iliac joints, fractured right clavicle and suffered lacerations to the knee and ankle. 20% loss of total body function. Six months pregnant at the time and the child in her womb was fatally killed as was her mother. Emotional difficulties (reactive depression/grieving) ‘serious, debilitating and distressing’. With pain she managed to go on to work at kinder­garten and meatworks.

PNEL $15,000; FNEL $35,000; PEL $1,500; FEL $45,000; specials $1,491.30; airfare for husb to visit $1,000; BvF $3,500; Total $102,491.30  Not on austlii

 

In Karamesinis v Australian Crowd Control Services 1/5/12 [2012] VCC 507 Saccardo J awarded each of changerssoftware.com the deceased’s parents (the Ps) $175,000 in general damages. The mother is 57 and the father 69. The deceased, their oldest son (who was 30), died in 2007 as a result motorup.com.au of an altercation with a crowd controller at a nightclub. The Ps had already lost their only other child (another son) in tragic circumstances two years earlier in 2005. Both P’s were suffering significant mental issues before the death of their oldest son as a result of the death of their youngest son. However, the subsequent death crushed them, and they are unlikely to recover from their severe psychiatric symptoms including PTSD, anxiety and depression.

 

Contingency of premature death

[See Contingencies – Premature death/life expectancy]

 

Employee

See Barclay v Penberthy; Penberthy v Barclay 2/10/12 [2012] HCA 40 where in the case of a plane crash caused by engine failure and negligent pilot response it was held that the action per quod servitium amisit continues as part of the common law of Australia and as a remedy for particular loss. The rule in Baker v Bolton also continues to apply.

 

Loss of child caring services

In Grosso v Deaton 20/4/12 [2012] NSWCA 101 [61 MVR 349] the COA canvassed the relevant principles of assessment in a case under the Compensation to Relatives Act 1897 (NSW) where a single mother caring full-time for her 12 year old and eight year old sons (of different fathers) was killed in a car accident. The claim was brought by the children’s grandmother as executor of the deceased’s estate. The claim was for loss of domestic services and loss of an expectation of financial benefit. After the death, the fathers of the boys (who both worked full-time) provided care. The impact of this on damages considered. “To the extent that a father was providing some assistance or maintenance prior to the mother’s death, allowance must be made in calculating the loss for those other contributions. If, upon death, relatives, including the father, step into the mother’s role, the loss may be ameliorated or eliminated … On the other hand, it is clear that the provision of services by ‘relatives or friends gratuitously or at small cost as a benevolent gesture to the family’ does not preclude the recovery of the true value of those services from the tortfeasor … However, the principle that recovery is not precluded by the provision of gratuitous services replacing those of the deceased, is qualified, in the case of a spouse, by the requirement that allowance be made for the possibility of remarriage” @19-20.

[Fisher] “I turn now to the first matter, the question of the allowance made by the learned Judge for the services of the appellant’s mother. He recognized the authority of Beck v Farrelly … and, more importantly, of the decision of the High Court in Griffiths v Kerkemeyer … He recognized, that is, that an allowance can be made for past present and future care rendered gratuitously to an injured plaintiff by his relatives or friends, and, as I understand him, he thought that there was no reason why the same principle should not be applied to a claim under s19 of the Wrongs Act [SA as it then was] and, with respect, I agree.

The rationale of the principle in question is that the injured plaintiff has suffered a loss corresponding to his need for the services so provided. The fact that a friend or a relative provides the services gratuitously ought not to accrue to the advantage of the wrongdoer; see Griffiths v Kerkemeyer.

But, said the learned Judge, here the appellant has not suffered any such loss for he still gets the same services from his mother as he got from her before the accident. I think that is largely true, but not completely so. For before the accident the deceased looked after the child. After the accident he had a need for the child-caring services which she formerly provided and which he lost by reason of her death. That need has been supplied gratuitously by his mother. Nevertheless he should be compensated for the loss. If it is said that if there had been no accident the deceased would probably have worked and the grandmother have looked after the child, the answer is that the household would then have had the benefit of the deceased’s wages and the obligation on the appellant to maintain the family would have been reduced.

I think that the appellant should clearly have been allowed something for the loss of his wife’s child-caring services up to the date of the trial. Up to that date the chance of remarriage, is not relevant because he has not remarried. I think he should also be allowed something for the chances of that loss continuing after the trial, though there the question of possible outerspaces.com.au remarriage is relevant.”

Fisher v Smithson (1978) 17 SASR 222 @ 232-233 Bray CJ (Full Court) Not on austlii

 

Of claimant (from non-compensable causes)

In Leventeris v Terry 27/8/10 [2010] SADC 115 Judge Boylan assessed damages for past voluntary services in a case where the claimant died of non-accident-related injuries before her claim was decided. Such damages to benefit her estate. Appeal dismissed in Terry v Leventeris 12/4/11 [2011] SASCFC 26 [57 MVR 524]

 

In Lappin v TJF Scaffolding Maintenance & Hire P/L & VWA 26/10/10 [2010] VCC 1644

the P, a scaffolder, “suffered an injury [at work] to his lower spine with derangement of the inter-vertebral discs at the lower levels, and possibly some injury to the facet joints. The radiology does not disclose any frank prolapse, nor evidence of neurological compromise. Despite the lack of any prolapse to the lower spine … the injury did produce significant pain to the worker, which required him to take an extensive range of painkilling, anti-inflammatory and various other forms of medication, including anti-depressants” @62. P also suffered some sexual dysfunction and he became ‘depressed, irritable and isolated’. P was not able to continue his passion with boxing. P was injured in 2002 and died in 2008 due to an unrelated motorcycle accident. Approach to assessment of general damages for a closed period, due to P’s subsequent death, discussed. Judge O’Neill awarded $50,000 in general damages among other heads.

 

Overtime

[See Overtime – Stopped doing it after wife died]

 

Proportion of deceased’s income available to family

[Eden] “The proportion of a husband’s income that is made available to his wife and children will be influenced considerably by many variable matters other than the number of children. The size of his income, his own personal habits and attitudes, and the possible earnings of the wife and children themselves are just some of the determining factors. The evidence that is given on these subjects by wives and children may not always be ideal, but it ought to be a better guide in most cases than the rough averaging that must lie behind the Table 9.1 calculations. That, indeed, is recognized by Professor Luntz. He speaks of the table giving ‘some guidance … in cases where better evidence is not available’. One can conceive of a case in which the usual oral evidence would simply not be available, but that would be uncommon. For the rest, it seems to me that a dependant’s case is best presented along conventional lines.”

Stanbury v Eden (1985) 38 SASR 437 @ 439   Not on austlii

 

Relative (of)

Rolla F & Tilve A, ‘Europe – Italy- The Supreme Court reiterates that damage ensuing from the death of a relative can be compensated’  (2012) 22(5) Australian Product Liability Reporter 224