ee AA gaggo: ek 34 CATCHWORDS Damges ~ fatal injury - claims under Compensation (Fatal Injuries) Act (N.T.) - de facto wife and two children - loss of support, solatium, consortium, care and guidance and household services - appropriateness of two stage (pre- trial and post-trial) process of assessment of damages - whether adequate allowance made for contingencies/vicissitudes in assessment of pre-trial component of damages,.in particular, prospect of wife marrying or entering into another de facto relationship - whether damages for loss of consortium and solatium recoverable by de facto wife - whether damages for solatium and loss of care and guidance recoverable by child where not actual child of deceased - quantum of damages. Compensation (Fatal Injuries) Act (N.T.) ss.4(2), 7, 8, 10, 13 State Government Insurance Office (Qld.) v. Biemann (1983) 49 A.L.R. 247 — con. AUSTRALIAN TELECOMMUNICATIONS COMMISSION, DANNY O'BRIEN and WALTER WILLIAM HALL v. BESSIE PARSONS, REUBEN JOSEPH PARSONS and LESLIE MARK PARSONS by their next friend BESSIE PARSONS No. NT 43 of 1983 Woodward, Neaves and Beaumont, JJ. 20 February 1985. Sydney. IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION BETWEEN: AND: Judges making order: Date order made: Where made: THE COURT ORDERS THAT: ed No. NE 45 of 1983 ON APPEAL from the Supreme Court of the Northern Territory . AUSTRALIAN TELECOMMUNICATIONS COMMISSION, DANNY O'BRIEN and WALTER WILLIAM HALL Appellants BESSIE PARSONS, REUBEN JOSEPH PARSONS and LESLIE MARK PARSONS by their next friend BESSIE PARSONS Respondents ORDER Woodward, Neaves and Beaumont, Jd. 20 February 1985. Sydney. 1. The appeal be dismissed. 2. The appellants pay the respondents' costs of the appeal. IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION ed No. NI 43 of 1983 ON APPEAL from the Supreme Court of the Northern Territory . BETWEEN: AUSTRALIAN TELECOMMUNICATIONS COMMISSION, DANNY O'BRIEN and WALTER WILLIAM HALL Appellants AND: BESSIE PARSONS, REUBEN JOSEPH PARSONS and LESLIE MARK PARSONS by their next friend BESSIE PARSONS Respondents CORAM Woodward, Neaves and Beaumont, dd. DATED: 20 February 1985. REASONS FOR JUDGMENT THE COURT: This is an appeal from a judgment of a single judge of the Supreme Court of the Northern Territory (Muirhead, J.) in claims made under the Compensation (Fatal Injuries) Act (N.1.) ("the Act"). In the proceedings, the learned judge awarded the first respondent damages in the total sum of $181,000.00; the second respondent, an infant, the sum of $16,500.00; and the third respondent, also an infant,. the sum of $24,500.00 (see (1983) 28 N.T.R. 19). The appellants, the defendants below, appeal against each of these awards. A claim was also made by the first respondent in the proceedings under the Law Reform (Miscellaneous Provisions) Act (N.@.). This claim was dismissed by the learned judge for want of title to sue. No appeal is brought against this dismissal. The claims made in the proceedings arise out of the death of Mark Leslie Parsons on 15 March 1976. The deceased died as a result of electrocution suffered in the course of his employment with the first appellant. Liability was admitted. The writ was not issued until 15 March 1982, six years after the death of the deceased. The first respondent and the deceased did not marry put they had lived in a de facto relationship for about three years prior to his death. The second respondent, born on 17 dune 1968, is the natural son of the first respondent by a previous association. The deceased stood in loco parentis to the second respondent who lived with the family and was accepted by the deceased as his child. The third respondent, born shortly after the death of the deceased on 18 April 1976, is the son of the deceased and the first respondent. The action was brought under s.7(1) of the Act which provides: "Where the death of a person is caused by a wrongful act, neglect or default and the act, neglect or default is such that it would, if death had not ensued, have entitled the person injured to maintain an action and recover damages in respect of the injury, the person who would have been liable, if the death had not ensued, is liable to an action for damages notwithstanding the death of the person injured ..." By s.8(1) of the Act, not more than one action may be brought against any one person in respect of a death. By s.8(2), subject to 8-13, any auch action shall be brought by and in the name of the personal representative of the deceased person for the benefit of those members of the deceased person's family who sustained damage by reason of his death. In the present case, no application was made for the grant of letters of administration of the deceased's estate. In such a case, s.13(1) enables an action to be brought by any one or more of the persons for whose benefit an action may be brought. In that event, s.13(2) provides that such action shall be for the benefit of the same persons and subject to the same provisions, mutatis mutandis, as if it were brought by the personal representative of the deceased on behalf of those persons. 4. A member of a deceased person's family is defined py s.4(2)(c) of the Act to include a person to whom the deceased stood, "immediately before his death, in loco parentis. By s.4(3), as it stood at the relevant date, a person who, although not legally married to the deceased, was, immediately before the death of the deceased, living with the deceased as wife, on a permanent and bona fide domestic basis shall be treated as the wife of the deceased. Damages are dealt with by s-10. Section 10(1) provides that the Court may award to the parties respectively for whose benefit the action is brought, such damages as it may think proportioned to the injury resulting from the death of the person injured. By s.10(2), the amount of damages recovered under the section shall, after deducting the costs not recovered from the defendant, be divided amongst the persons for whose benefit the action is brought in such shares as the Court determines. Section 10(3) identifies a number of heads of damages, to which specific reference will be made later. By s.10(4), in assessing damages in an action, no reduction shall be made on account of (inter alia) the remarriage or prospects of remarriage of the surviving spouse. 5. The learned judge first considered damages for loss of dependency. He proceeded by a two stage assessment and awarded damages for loss of support in the total sum of $198,000.00 as follows: To the first respondent —- to date of trial . $ 38,000 future 129,000 To the second respondent - to date of trial 5,000 future 4,500 To the third respondent — to date of trial 5,000 future 16,500 $198, 000 In connection with this aspect of the claim, his Honour made the following findings of fact, none of which is challenged in this appeal (28 N.@.R. at p.24). The first respondent was born on a cattle station in the Territory on 1 July 1948. She is of part Aboriginal descent. She was taken from her mother at the age of four and brought up in a church home at Alice Springs until she was 15 years of age. She then went interstate for a year and returned to Darwin. At the age of 20 years she gave birth to the second respondent as a result of a rather casual relationship. She returned to Alice Springs where she worked as a cleaner. She acquired a Housing Commission flat and she met the deceased, of Evropean origin, in early 1973. He was working as a truck driver at the time and he had a stable employment history until his death. They lived together and shared expenses. His relationship with the second respondent was 6. good. They moved to Darwin in September 1974 and obtained temporary accommodation, having applied for a Housing Commission home. She obtained cleaning work of a temporary nature at the Darwin Hospital. The cyclone in December 1974 disrupted their plans. The first respondent was temporarily evacuated to Alice Springs but she and the second respondent returned to Darwin in about May 1975. She did not work again before the deceased's death, being supported by his earnings. They lived in a Housing Commission caravan erected on a block of land previously occupied by a house destroyed in the cyclone. He paid the rent and supplied her with housekeeping. The evidence did not permit the learned judge to make precise findings as to the actual measure of support at that time. They budgeted on a cash basis. The deceased was a non-smoker but a moderate drinker. He owned two motor vehicles during their association, but one was "smashed" and at the time of his death they had no vehicle. They lived from week to week enjoying simple pleasures. In April 1976, shortly after the deceased's death, the first respondent changed her surname by deed poll from Connors to Parsons. She gave evidence that they planned to marry after the child she was expecting was born in April 1976 and she had informed others of this expectation. The learned judge found her evidence on this aspect to be somewhat equivocal T. and he was not satisfied on the probabilities that marriage would then have taken place. But his Honour thought that this did not intrude upon the claim for loss of the benefits of her dependency as he was satisfied that her relationship with the deceased was reasonably stable. The learned judge accepted the following facts" agreed by the parties with respect to the economic loss claimed (28 N.T.R. at p.25): "1. The deceased commenced to work for Telecom on 13 September 1975. At date of death he was a temporary linesman.. On that date his pay, clear of tax was $190. He had performed his work in a satisfactory manner and had this performance continued he would probably have achieved permanent status in or about the year 1978. By the date of trial (2 November 1983) if he had remained in Telecom's employ he would probably have achieved the status of lines serviceman, with the possibility of having achieved the status of lines supervisor grade l. 2. At date of trial the following wage levels were current - all clear of tax: Linesman $320 Lines serviceman $340 Lines supervisor $360 3 Since date of death 'wastage' from all eauses from the position of linesman has been about 2 per cent. 4. Between the date of death and the trial date, assuming survival, continuing work with Telecom and the probabilities referred to above, the deceased's total earnings clear of tax would have amounted to $90,000." After referring to the evidence of Mr. Stratford, a consulting actuary, to be dealt with later, his Honour made the following further findings (28 N.T.R. at p-27): "In this case, as I have said, I have very little evidence of a family budget. It appears that when their association commenced the deceased contributed little, living with the wife, in her flat and using her effects. I can only find that once they came to Darwin he regularly contributed towards the upkeep of the wife and her son and that a measure of support would have continued in the future. He appears to have lived from day to day and to have been in financial difficulties in meeting commitments to those who financed the purchase of a car -— itself for a time a family asset which he did not possess at date of death. The wife, when she worked, seems to have pooled her earnings with those of the deceased and there was evidence which satisfies me that for some time she was drawing a supporting mother's pension to which she was not entitled and which in the course of time it became necessary for her to repay. In all the circumstances the best I can do is to approach the matter on the basis that 40% of his net earnings would have been applied to his own support and personal expenditure, a finding I have applied to the past as well as the future." It was common ground that the deceased's normal retiring age would have been 65. The learned judge accepted the evidence of Mr. Stratford that the present value of an annuity commencing on the trial date of $1.00 per week net loss on the joint lives of the deceased and the first respondent was $924.00. His Honour then expressed his conclusions as follows (28 N.?.R. at p.28): 9. "Making allowance for the deceased's own support, the loss to the dependants at date of trial calculated on this basis is $54,000 (60% of $90,000). Only limited allowance for contingencies such as unemployment, sickness and the like should be made over this period of almost eight years bearing in mind the evidence of the low wastage experienced by Telecom and the evidence that the deceased was @ young man who appears to have had a healthy existence. I allow $48,000 for economic loss to date of trial. The youngest child was born shortly after his father's death but I see no point in differing the allowance to the children over this period when they would probably have been wholly maintained by hin. On this aspect I apportion $5000 to each of the children and $38,000 to the wife. As to the future, I consider justice will be done if I work on the net salary of a lines supervisor - $340. (His Honour plainl intended to refer to a lines serviceman. Again I intend to assess damages for the family as a whole and make an apportionment I consider reasonable. Applying Mr Stratford's calculation that $924 is the appropriate value of an annuity of $1 per week and using round figures one reaches an initial assessment of $314,000 which must be reduced py 40% to allow for the deceased's own future support and personal expenditure, including of course proportionate share of household expenses such as rent, food and clothing. Reduced in this manner one arrives at a total of $188,400, (60% of $314,000)." But the learned judge thought that this sum should be substantially reduced to take account of contingencies. He said (28 N.T.R. at p.28): "There must in my view be a more substantial reduction for contingencies. I am not persuaded the parties would have married and one's experience dictates that of their nature de facto relationships are still apt to be more transitory than marriages. I do 10. not overlook the link between partners that children provide. Furthermore in the long run the assessment must be a matter of judgment; guided, but not based on actuarial calculation. The parties may have had further children. The plaintiff says they planned a family of four but eventually her dependency would probably have decreased below the proportion of 60% which I have allowed as appropriate for the family. To calculate this actuarily seems to me to be a useless exercise as the data is hypothetical. I consider justice will be done, in accordance with the dictates of the statute, if I make a more substantial discount. I allow $150,000 for the future economic loss suffered by the family." The learned judge considered it probable that the deceased would have supported the two children until they were 16 to 18 years of age. He apportioned $129, 000.00 to the first respondent and $4,500.00 and $16,500.00 to the second and third respondents respectively. Whilst conceding that a two stage process of assessment is conventional in personal injury litigation, the appellants challenge its employment in a claim under Lord Campbell's legislation except for the limited purpose of the calculation of interest before judgment in those jurisdictions where such interest may be claimed. (In the Territory, interest cannot be awarded before judgment.) 'The appellants not only question the adoption of the two stage assessment process in point of principle. They also challenge its application as being unfair in the particular 11- circumstances of this case. They point to the delay. in the institution of the proceedings; the absence of any legally enforceable right to support against the deceased; the relatively short period of employment of the deceased by the first appellant; the unsatisfactory nature of the evidence of actual support by the deceased;- and the real possibility that the relationship between the first respondent and the deceased would not have subsisted. In our opinion, the learned judge was correct in adopting a two stage method of assessment. The propriety of such an approach has been assumed, if not squarely decided, in a number of the authorities in this area, including at least three decisions of the Supreme Court of the Northern Territory handed down between 1979 and 1982 by Muirhead, Jd., Gallop, J. and Forster, C.J. respectively. It will be sufficient to refer to only two decisions of the High Court. In Jacobs v. Varley (1975) 9 A.L.R. 219, although the Court was divided on the ultimate fate of the appeal, there was no suggestion by any justice that the Fuil Court of the Supreme Court of South Australia erred in adopting the two stage method in a claim under Lord Campbell's legislation. Although in dissent, Gibbs, J. (as he then was) said (with the concurrence of Stephen, J.) (at pp.223-4): 12. "In assessing damages in the present case it is first necessary +o compensate the dependants for the loss of the benefit which they might reasonably have expected to derive during the period from the date of death to the date of trial ... The second period to be considered in the making of an assessment is that commencing with the date of the judgment." Of the majority who favoured dismissal of the appeal, the reasoning of Mason, J. at least assumed that the Full Court's technique was appropriate. His Honour's analysis of the Full Court's assessment of loss, first, up to the trial, and, then, after the trial, was consistent only with his approval of such an approach (at pp.229; 231). More recently, the question arose for consideration in State Government Insurance Office (Q1d.) v. Biemann (1983) 49 A.L.R. 247 in the context of a claim for interest in an action under Lord Campbell's legislation. The trial judge had awarded interest pursuant to s.72 of the Common Law Practice Act, 1867 (Q1d.) both on the amount representing loss of dependency to the date of trial and that representing future loss of dependency. It was held by the High Court that, on the true construction of s.72, the discretion to award interest should be exercised in fatal accident claims as in personal injury actions, so as to draw a distinction between detrimental consequences suffered before the date of trial and those suffered thereafter. Accordingly, under s./72 and legislation indistinguishable 13. from it, the trial judge should split an award into two parts: one representing loss of dependency before trial, the other representing loss of dependency after that date. Interest (at half the current short term rate) should only be awarded on the amount representing loss before trial. In their joint judgment, Gibbs, C.J., Mason, Deane and Dawson, JdJ., after discussing, in particular, the decisions and reasoning in Ruby v. Marsh (1975) 132 C.L.R. 642 and Fire and All Risks Insurance Co. Limited v. Callinan (1978) 140 C.L-R. 427, said (at p.252): "Since Ruby v Marsh this court has had no occasion to consider an award of interest on a verdict in a fatal accident claim. However, the House of Lords considered the question in Cookson v_ Knowles ... It held (1) that in a normal fatal accidents case, the damages ought, as a general rule, to be split into two parts: (a) the pecuniary loss which it was estimated the dependants had already sustained from the date of death up to the date of trial, and (b) the pecuniary loss which it was estimated they would sustain from the trial onwards; (2) that the interest on the pre-trial loss should be awarded for a period between the date of death and the date of trial at half the short term interest rates current during that period; and (3) that no interest should be awarded on future loss. ... Although in Cookson v Knowles Lord Fraser of fullybelton said ... that s 79A (of the Victorian legislation considered in Ruby v.- Marsh) is in terms broadly similar to those of the English legislation considered in that case, s 794A @iffers from the English legislation, as it does from s 72 of the Queensland Act, in a number of respects ... First, s 794 provides that the judge 'shall' 14. award interest 'unless good cause is shown to the contrary', and not that he 'may' do so. Secondly, s 79A does not expressly permit the giving of interest on part only of the amount awarded. Thirdly - and this important ground of distinction was pointed out in Cullen v Trappell ... ~ s 79A contains, and s 2 does not, an express prohibition on the allowance of interest on that part of the damages which is awarded as compensation for loss or damage to be incurred or suffered after the date of the award." Their Honours proceeded to distinguish Ruby v.- Marsh: "The decision in Ruby v Marsh depended on the particular words of s 79A and in particular on the question whether the words of s 79A(3)(b) are concerned with a juristic concept or a practical one. That question does not arise in the present case, where, to use the words of Thompson v_Faranio, the effect of s 72 'was simply to leave the point resting on principle', namely, the principle expounded in relation to actions for personal injuries in Fire and All Risks Insurance Co Ltd v Callinan and in relation to fatal accident claims in Cookson v_ Knowles. In other words, the general discretion given to a trial judge by s 72 to award interest should be exercised in fatal accident claims as well as in actions for personal injuries so as to draw a distinction between detrimental consequences suffered before the date of the trial and those to be suffered thereafter. Accordingly, in cases which arise under s 72 of the Queensland Act, and under such legislation of other States as is indistinguishable from that section, it will be appropriate for a trial judge (1) when he is able to do so to split the award into two parts, as did the trial judge in this case, the first part reflecting loss of dependency before .the trial and the second part reflecting loss of dependency after that date; and (2) to award interest only on the 15. loss before the date of trial, making no award of interest in respect of the loss to be suffered after that date." Although the matter of immediate concern in Biemann's Case was the question of interest, the reasoning of the Court is consistent with its approval of the two stage method of assessment even where interest is not an issue. The appellants place much reliance upon the recent decison of the House of Lords in Graham v. Dodds [1983] 1 W.L.R. 808. But, in ovr view, the case is of no assistance here. The point there considered was whether, under the English multiplier system, the relevant date in a clain under Lord Campbell's legislation, is the date of death or the date of trial. The House held that, whereas in the case of personal injury if the plaintiff had survived to the date of trial that was a know fact and accordingly the multiplier appropriate to the length of his future working life had to be selected as at that date, in the case of a fatal accident there was uncertainty as to what might have happened to the deceased after the date of his death had he survived and, accordingly, the multiplier had to be selected as at the date of death and the number of pre-trial years for which special damages were awarded should then be deducted from that multiplier. 16. Although the decision in Graham v. Dodds clarified some aspects of the reasoning in Cookson v. Knowles, supra (see Yell, Assessing Damages in Fatal Accident Cases, Litigation, (1983) Vol.3 No.1 at p.15), it is concerned only with the multiplier/multiplicand system peculiar to the United Kingdom. The decisions in Jacobs v. Varley and in Biemann's Case are authoritative and must govern the general position in this country even if not squarely decisive of the question to be determined in this appeal (see also Iuntz, Assessment of Damages, 2nd Fd. at pp.59-60). Moreover, adoption of the two stage method of assessment is consistent with the policy consideration that whilst the assessment of damages must be referable to the date of death, the Court. "is bound to use such facts as have come to light since the date of death which are relevant to the assessment, rather than speculations to which recourse would have had to be made had the court been confined to such facts as were known at the date of death. Further, the court will award damages in money of-the day of the award, not being deterred therefrom by the fact that in the interval since the date of death the value of money may have changed. See O'Brien v. McKean ..." (per Barwick, C.d., Ruby v. Marsh, supra, at p.647; see also Willis v. The Commonwealth (1946) 73 C.L.R. 105 at p.109). 17. As has been mentioned, the appellants also criticise the application by the learned judge of the two stage approach in the particular circumstances of this case. Many of the criticisms are no more than attempts to challenge the weight of the evidence. For example, his Honour's findings that the deceased would probably have continued to contribute 60% of his income to the support of his family, and that he was unlikely to have separated from the first respondent, were both challenged. fThere was, however, ample evidence to support these findings. On the other hand, the submission that allowance should be made for the respondents' delay in the institution of proceedings should, along with one or two other matters, be separately dealt with. In O'Brien v. McKean (1968) 118 C.L.R. 540, Barwick, C.J., observed, obiter, that it was possible that a plaintiff who delayed could obtain a substantial advantage by his own dilatory conduct (at p.545). A similar reaction was expressed by Lord Bridge in Graham v. Dodds, supra, (at p-815). It is true that, in some cases, some advantage could accrue in this way. It is equally true that a plaintiff could be disadvantaged by the occurrence of certain events which occur between the date of injury or death and the date of trial. A plaintiff who delays the commencement of proceedings, for sufficient reasons or otherwise, runs a measure of risk accordingly (see Iuntz, op. cit. at p.39). 18. Whatever be the outcome of the taking of the risks inherent in the delay, it cannot, as a matter of principle, justify any departure from or modification of the two stage method of assessment of damages. As has been said, that method is rooted in the policy that courts prefer facts to prophecies. That policy is fundamental and should not be displaced by the introduction of a principle which attempts to assess what is a reasonable time within which the litigation ought to have been commenced. Any such assessment would, in any event, raise its own difficulties. For one thing, it is not easy to lay down objective criteria for this purpose. For another, it is to be expected that disputes would arise as to what should be regarded as a sufficient explanation of delay which has occurred. If it matters, it is not claimed in the present case that the first respondent was in any personal sense blameworthy for the delay which occurred. In our opinion, the learned judge was not bound to take into account in reduction of the claim the late institution of these proceedings. The appellants next draw attention to the fact that, in making allowance for contingencies when assessing pre-trial damages, his Honour did not expressly refer to the possibilities that the parties might have separated, or the deceased might have died before the trial from some cause other than that for which the appellants were responsible. It seems unlikely that a judge as experienced as his Honour 19. would have overlooked these factors, and he was not, obliged to list all the contingencies which he had in mind in making the reduction which he did. In any event, by adopting the figures of actual earnings lost between death and trial which were agreed between the parties, his Honour was not using the money values of the date of trial for the earlier years' figures. It would be reasonable to offset this against the factors advanced by the appellants (cf. Jacka v. Horsten (1980) 88 LSJS 419 at p.424, in the Full Court of South Australia). It is also suggested that the learned judge erred by failing to take into account in reduction of the clain for loss of dependency the circumstance that, unlike a legal wife, the first respondent had no enforceable right of support against the deceased. In our opinion, this is an irrelevant consideration. The first respondent satisfied the statutory definition of a de facto wife for the purposes of the Act. The question of actual support, one of fact only, was determined adversely to the appellants. No ground for disturbing that finding within the established principles has been demonstrated. The appellants also attack the use made by the learned judge of the actuarial evidence. It is submitted that a multiplier of 1,080 should have been adopted as from the date of death. But this submission depends for its 20. acceptance upon the adoption of a single step assessment of loss of dependency. Since, for reasons already given, a two stage approach is required, the criticism urged by the appellants cannot be sustained. In coming to his conclusions, the learned judge quite properly took into account, as contingencies, the ordinary vicissitudes of life for which allowance should properly be made. The appellants, however, say that the learned judge erred in this respect by failing to take account of the prospects of the first respondent's marrying or entering into a further de facto relationship. They rely, in this connection, upon a finding that the first respondent engaged in a relationship with a soldier who fathered a chila born to the first respondent shortly before the trial of the action. The appellants submit that the Supreme Court should have taken these circumstances into account in reduction of the claim for loss of dependency. It is true, as the appellants say, that the requirement made by s.10(4)(h) of the Act that, in assessing damages, no reduction shall be made on account of the remarriage or prospects of remarriage of the surviving spouse is not, in its literal terms, applicable to the possibility that the first respondent may enter into another de facto marriage. On the other hand, even if there were no statutory exclusion of the consideration of that 21. possibility, it does not follow that it was properly a matter to be taken into account, even apart from the construction of s.10(4)(h) to which reference will later be made. In Wild v. Eves [1970] 2 N.S.W.R. 526, in an action under Lord Campbell's legislation, the question arose whether a widow's cohabitation with a man is a factor which reduces her or the children's entitlement to damages. The majority (Jacobs and Moffitt, JJ.A.), after referring to Carroll v. Purcell (1962) 107 C.L.R. 73, said (at p.327): "Thus the High Court stresses the inevitability of the result of the spouse's death being a revived capacity to remarry with the implication of the consequent dependency on the new husband. This is distinguished from the factual result of a spouse's death being a greater opportunity to earn, an opportunity which is greater or smaller by choice. When we apply this distinction in the present case, we find that death of a husband simply does not revive a capacity as distinct from an opportunity to cohabit with another man. That capacity always existed. The case can be envisaged of a continued dependency despite such cohabitation. It is true that there is a far greater opportunity for such cohabitation without the sanction of matrimonial proceedings or withdrawal of maintenance by a husband. But to a lesser degree these sanctions may exist in the case of a wife who insists on working. The difference though very large is one of degree, not of kind. In short there is no revived capacity to cohabit as there is a revived capacity to remarry, and that test of capacity is the one which has been laid down." 22. It was held that the plaintiff's cohabitation with a man was not a factor which reduced her entitlement to damages except so far as it might be evidence from which an inference could be drawn that the plaintiff would remarry. A fortiori it did not reduce the entitlement of a child. Manning, J. dissented. In his view, the possibility of a de facto relationship could generally be ignored but, where it had actually occurred by the trial and was continuing, it should be taken into account. It may well be that this aspect of the operation of Lord Campbell's legislation has not yet been finally settled in other jurisdictions (see Iuntz, op.cit. at p-451) but, in any event, in our view, the provisions of s.10(4)(h), when properly construed, require the court to ignore both the possibility of a de facto relationship and the existence of such relationship if it has already occurred. In our opinion, s.10(4)(h) should be construed so as to extend not only to legal marriages but to de facto marriages as well. Any other interpretation would lead to a result which would be both capricious and irrational (see Cooper Brookes (Wollongong) Pty. Timited v. Federal Commissioner of Taxation (1981) 147 C.L.R. 297 per Mason and Wilson, JJ. at p-.321). Since the legislative scheme as a whole seeks to elevate de facto marriages to the status of legal marriages, it is permissible to imply into s.10(4)(h) a provision to the same effect dealing with de facto relationships (see 23. Cooper Brookes, supra, per Gibbs, C.J. at pp.305-7; per Stephen, J. at pp-.312-3; per Mason and Wilson, JJ. at pp.320-3). In the first place, the marriage of the survivor of a de facto relationship covered by s.4(3)(c) of the Act should be treated as a "remarriage" falling within s.10(4)(h) (see Bennett v. Liddy (1979) 25 A.L.R. 340 at p.352). It would be entirely anomalous if such a marriage were to be disregarded but a fresh relationship of the type contemplated by s.4(3)(c) had to be taken into account. In our opinion, as a matter of law, the learned judge correctly disregarded the liaison relied on by the appellants. In any event, as a matter of fact, the appellants have failed to establish any basis upon which an inference could reasonably be drawn that the first respondent is likely to remarry or engage in another permanent de facto relationship. The appellants also attack the award made by the learned judge to the first respondent in the sum of $10,000.00 in respect of loss of consortium and solatiun. By s.10(3) of that Act it is provided that: "(3) Damages in an action may include - eee (c) if the deceased person is survived py a wife or husband - damages for loss or impairment of consortium of husband and wife in the same manner 24. as damages would be assessed in 2 claim in tort by a husband for damages for loss or impairment of - consortium; (£) solatium." It is suggested that, in the case of a de facto relationship, these provisions can have no application since the juristic source of these concepts is the legal relation of husband and wife and nothing short of such a relationship will suffice as a foundation for such a claim. It is further submitted that any claim for consortium ended with the death of the deceased. 'The appellants also argue that damages can only be awarded under the Act for loss of expectation of a pecuniary benefit, yet the respondents are seeking to recover damages in respect of the destruction of an incident which could not have conferred any material penefit. In short, even if a loss was suffered, it fell outside the statute. In our opinion, the contentions now advanced on behalf of the appellants should not be accepted. Given the intention of the legislature to equate a de facto marriage with a legal marriage in all relevant respects, it must follow that s-10(3)(c) and (f) should be construed so as to extend their operation to a person in the position of the first respondent notwithstanding that no formal marriage occurred. Any other result of the operation of these 25. provisions would be capricious and irrational. Such a literal result is thus to be avoided as a matter of the proper construction of the statute (see Cooper Brookes, supra). In our view, the jurisdiction of the Court to award damages under these heads was established. The appellants also criticise the quantum of the award but any such appeal can only be entertained if the trial judge has acted on a wrong principle of law or has misapprehended the facts or has, for these or other reasons, made a wholly erroneous estimate of the damage suffered (see Hodges v. Frost (1984) 53 A.L-R. 373 at p.375 and the authorities there cited). No such error has been demonstrated in the award of $10,000.00 on this score. The only allegation of error which has any substance at all is that, by requiring damages for loss of consortium to be assessed "in the same manner as damages would be assessed in a claim in tort by a husband for damages for loss or impairment of consortium" (s.10(3)(c)), the Act had limited such damages to the period, if any, between injury and death. It was argued that support for this approach may be found in Sloan v. Kirby & Redman (1979) 20 SASR 263 at pp.275-8. But in that case, White, J. was construing legislation which assimilated a wife's position to that of a husband in claims for loss of consortium arising from either death or disablement. In the present case, the relevant paragraph is concerned only with the claims arising from 26. death, but with claims of either a wife or a husband. It would be extraordinary if the only claims which could be entertained were those relating to a possible period between injury and death. fhe words "in the same manner", in the passage cited above, must be read as relating to the nature and extent of damages rather than to the period. The learned judge also awarded the sum of $7,000.00 to the second respondent in respect of solatium and loss of care and guidance. The latter head of damage is specifically mentioned in s.10(4)(e)(ii). The appellants suggest that solatium is not available because the second respondent was not the actual child of the deceased. In our opinion, the submission should be rejected. The Act treats a child to whom the deceased stood in loco parentis as on an equal footing to an actual child. The learned judge found, on the facts, that the necessary relationship was established so as to deem the second respondent to be the child of the deceased. It follows that, as a matter of construction of s.10(3) of the Act, his Honour had jurisdiction to award damages under these heads. Any other construction would give s.10(3) an operation which would be absurd in the sense explained in Cooper Brookes, supra, and should be rejected accordingly. 27- Finally, the appellants submit that, because the second respondent had resumed his relationship with his actual father, the award of damages on this account was excessive. The learned judge considered this aspect of the claim with some care. There can be no suggestion that he was not fully seized of the circumstances of the claim. In our opinion, no basis for interfering with his assessment has been made out. We would dismiss the appeal with costs. | certify that this and the ve preceding pages are a true copy of the reasons for judgment herein of the Court " Ko Ark —— . Associate Dated 20 Gas