. CATCHWORDS Action for damages in respect of death of wife - Findings that deceased would have continued to work and have no children - Remarriage before trial - Finding that second wife who had one child at remarriage and one thereafter and planned to have one more would never work for gain - Whether admitted loss from death balanced by services rendered by second wife. ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY GERARD CAELLI v. ANTONIO LOPEZ No. ACT G50 of 1985 CORAM: Evatt, Kelly & Neaves JJ 19 December 1986 Canberra, A.C.T. . IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY ) ) ) ) No. ACT G.50 of 1985 DISTRICT REGISTRY ) ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: GERARD CAELLI Appellant AND: ANTONIO LOPEZ Respondent CORAM: Evatt, Kelly and Neaves JJ PLACE: Canberra, A.C.T. DATE: 19 December 1986 MINUTE OF ORDER THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellantg pay the respondent's costs to be taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G 50 of 1985 DISTRICT REGISTRY GENERAL DIVISION ON_ APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN : GERARD CAELLI Appellant AND: ANTONIO LOPEZ Respondent CORAM: Evatt, Kelly and Neaves JJ. DATE: 19 December 1986 REASONS FOR JUDGMENT: Evatt and Neaves JJ. Gerard Caelli ("the appellant") has appealed to this Court from a judgment of the Supreme Court of the Australian Capital Territory whereby he was awarded damages in the sum of $14,356.55 against Antonio Lopez ("the respondent"). The damages were awarded under the Compensation (Fatal Injuries) Ordinance 1968 (A.C.T.) ain respect of the death of the appellant's wife caused, as was admitted, by the negligence of the respondent. The appeal is brought on the ground that the damages awarded are grossly disproportionate to the appellant's loss. The appellant was born on 24 June 1958. He graduated from the University of Newcastle with a degree in mathematics 2. and computing. He married Helen James ("the deceased"), on 16 August 1980, her date of birth being 23 December 1959. At the time of the marriage the appellant was still a student. The appellant and the deceased came to Canberra at the beginning of 1982. The appellant tock up employment with the Australian Bureau of Statistics and he continued to be employed there at the date of his wife's death, 8 December 1982. His earnings at that time, after tax, were $520 per fortnight. At the time of her death the deceased was a registered nurse employed by the Capital Territory Health Commission at the Woden Valley Hospital. Her average earnings, after tax, were of the same order as those of the appellant, perhaps a little higher. The appellant and the deceased had a joint account with a building society into which their respective earnings were paid and from which their expenses were met. Those expenses included instalments under a mortgage of a jointly-owned house in which they resided, instalments under a hire purchase agreement on a motor vehicle, the cost of running the motor vehicle, payments ona washing machine and ordinary living expenses. The appellant assessed his loss per week as a result of his wife's death at $140 and this assessment was accepted by the trial judge as reasonable. It was not challenged on appeal. There was evidence before the trial judge, which he accepted, that the deccased disliked children, wanted none of 3. her own and had no intention of ceasing to work. His Honour also accepted that the appellant was content to go along with the wishes of the deceased that they should not have children. The appellant did, however, say in cross-examination that, although the tacit understanding between himself and his wife was that they were not going to have children, he thought he may have changed his mind after some 10 years of marriage. On 4 August 1984, less than two years after the death of the deceased, the appellant re-married. His second wife, Francine Claire Caelli, was born on 8 December 1957. She had been married previously and had a child of that marriage, a girl aged 5 years at the date of trial. Before her first marriage she had trained and worked as a nursing aide at the Woden Valley Hospital. After the date of her first marriage and until the birth of her daughter some 11 months later she worked us a children's nanny. She had not worked since and did not antend to do so. She gave birth on 19 April 1985 to another daughter of which the appellant is the natural father. The trial judge accepted the appellant's evidence that since his second marriage he has wholly supported his wife and her daughter by her first marriage. He also wholly supports his own daughter. The appellant and his present wife hope to add to their family in the future. His wife has no desire or intention of joining the work force. The damages awarded represent funeral and other expenses amounting to $2,596.55 and an amount of $140 per week for the period of 84 weeks from the date of the deceased's death to the date of the appellant's remarriage ($11,760). The trial judge found that the loss of financial support occasioned to the appellant by the death of the deceased was offset by the value of support gained by him by his subsequent marriage. His Honour referred to the services performed by the appellant's present wife and continued: "The deceased was unable to supply those services in the same measure as they are supplied by Mrs Caelli and will continue to be supplied. The deceased was unable to supply those services to the same extent because she was largely occupied in her employment, not in the same kind because she never became and would never have become a mother. I am quite unconvinced that the deceased's contribution of $140 per week to the plaintiff's support is not outweighed by the value of the domestic services rendered by Mrs Caelli over and beyond those rendered by the deceased." The trial judge took account of the fact that the appellant and the deceased "apparently shared the household tasks virtually equally". Evidence to that effect was given by the appellant's sister. In answer to questions put to her by the trial judge she gave the following avidence: "OQ. Can you just tell me this as a result of your own observations - in his first marriage, what was the situation so far as household chores, cooking and the like, was concerned? A. It tended to be a half and half thing; very much shared. What is the situation now? A. Oh, I think about the same, although I think Francine does a little bit more now, but he does do a fair bit still. 0. What, of cooking? A. No, not the cooking any more. Francine docs that. Cleaning of the house? A. He, sort of, does a bit of washing and pegging out: at the week-end he tends to help a bit." The witness added that the quantity of work to be done at that time was a lot more than when the appellant lived with his first wife. This is clearly understandable having regard to the presence of two young children in the home. For the appellant it was submitted that the trial judge erred in failing to give damages beyond the date of the appellant's remarriage. It was said that there was no sufficient evidence to warrant his Honour's conclusion that the pecuniary benefit to the appellant arising from his remarriage was at least equal to that which the appellant derived from the deceased. In our opinion, the evidence before the trial judge entitled him to conclude that the appellant's second wife provided services different in kind and quantity from those provided by the deceased and, so far as quantity is concerned, of a significantly greater amount. The services s0 provided are capable of having a pecuniary value placed upon them, difficult as that task may be. This was the task which his Honour had to assay, albeit on the meagre material available to him. The matter was, ultimately, one of fact although depending on general reasoning. The trial judge did not, in our opinion, fall into any error in point of principle in assessing in the manner he did the pecuniary loss suffered by the appellant in consequence of the death of his first wife. It was also submitted for the appellant that his Honour should have discounted the pecuniary value to the appellant of his present wife's services by reference to the burdens by way of maintenance and support which he assumed upon remarriage, particularly the cost of maintaining and supporting his wife and the child of her first marriage. In our opinion his Honour was correct in rejecting that submission. Such considerations cannot properly be taken into account either to increase or to reduce the damages payable in consequence of the respondents negligence. In the result, the appeal should be dismissed with costs. I certify that this and the preceding 5 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Evatt and the Honourable Mr Justice Neaves. Vuk Kieu Associate Dated: 19 December 1986 IN_THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G.50 of 1985 DISTRICT REGISTRY GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: GERARD CAELLI Appellant AND: ANTONIO LOPEZ Respondent CORAM: Evatt, Kelly and Neaves JJ 19 December 1986 REASONS FOR JUDGMENT KELLY J In an action brought in the Supreme Court of the Australian Capital Territory under the Compensation (Fatal Injuries) Ordinance 1968 (the Ordinance) of that Territory the appellant was awarded the sum of $14,356.55 as damages in respect of the death of his wife caused, as was admitted, by the negligence of the respondent. He has appealed against the amount awarded as inadequate and grossly disproportionate to the loss he suffered. -2- The appellant was born on 24 June 1958, his deceased wife on 23 December 1959. They married on 16 August 1980. She was killed on 8 December 1982. They had no children. The appellant remarried on 4 August 1984. His second wife was born on 8 December 1957. She had a child of an earlier marriage, born on 12 July 1980. The appellant gave evidence, accepted by the learned trial Judge, that since the second marriage he has completely supported his wife and her child, regarding her as his daughter. The couple have a child of their own, born on 19 April 1985. The appellant's deceased wife was a nursing sister, he a graduate in mathematics and computing. He earned $520 clear of tax per fortnight, she a little more at a hospital. They pooled their earnings and shared their expenses. The appellant assessed his loss per week as a result of the death of his wife at $140 and this assessment was accepted by the learned trial Judge as reasonable. Before this Court counsel for the respondent described it as amply proved. His Honour found that the deceased disliked children and that she had repeatedly said that she wanted none of her own, having no intention of ever stopping work. By contrast, the appellant's present wife has no intention of ever going out to work, seeing her future as a mother in the home. She would like to have another child in the not too distant future. In evidence the appellant said that he shared with the deceased her intention not to have any -3- children. He knew that for at least 10 years he would not want any but after that he might have changed his mind. He did not know. Whether the deceased would have fallen in with any change of mind he might have had and agreed in an attempt to have children at some later stage is a matter on which, on the evidence, there must be extreme doubt. Indeed, his Honour found that she would never have become a mother and this finding was clearly open to him. The learned trial Judge described the appellant's attitude to his two wives as follows:- "The plaintiff, apparently a man of easy temperament, was content to go along with the wishes of the deceased, but he is also prepared to abide by the wishes of Mrs Caelli. There appears to be no doubt that he 1s happily married and there appears to be no reason why he should not continue to be so. He loves his child and he treats his wife's child as his own." He said that account had to be taken of the fact that the appellant and the deceased apparently shared the household tasks virtually equally. His finding seems to have been made on the evidence of the appellant's sister. His Honour had asked her to tell him, as a result of her own observations, what was the situation in the appellant's first marriage so far as household chores, cooking and the like were concerned. She replied that it tended to be a half and half thing, very much_ shared. She said the Situation in the second marriage at the time of the trial was about the same but she thought the appellant's second wife did a little bit more now although he did a fair bit still. She said also that the quantity of housework to be -4- done at the time of the trial was a lot more than when the appellant's first wife was alive. This evidence seems to have been accepted by the learned trial Judge. There seems to have been no reason why it should not. It is naturally to be expected that there will be much more housework in a household consisting of a man, his wife and their two small children, the wife not working, than in one consisting of a childless couple both of whom work. In giving judgment his Honour said:- "It is claimed on the plaintiff's behalf, however, that the loss of financial support occasioned by the death of the deceased, has not been offset by the value of support gained by his subsequent marriage. In effect, it seems to be suggested that in comparison with the deceased Mrs Caelli and the children constitute a financial liability. I do not accept this submission. It fails to take account of the value that flows to the plaintiff from the various services performed as wife and mother, from which services the plaintiff derives benefit and pleasure. The deceased was unable to supply those services in the same measure as they are supplied by Mrs Caellz and will continue to be supplied. The deceased was unable to supply those services to the same extent because she was largely occupied in her employment, not in the same kind because she never became and would never have become a mother. I am quite unconvinced that the deceased's contribution of $140 per week to the plaintiff's support 1s not outweighed by the domestic services rendered by Mrs Caelli over and beyond those rendered by the deceased," Thereafter his Honour limited the appellant's damages to $11,760, representing a loss for the 84 weeks between the date of death and the date of remarriage at $140 per week, plus $2,596.55 for funeral and ambulance expenses and the cost of a memorial rosebush. Noting that the appellant had received $40,000 workers' -5- compensation aS a result of the death of his wife and that he received also and continued to receive $7,500 per annum in respect of superannuation entitlements, his Honour rejected a claim for interest under s.53A of the Supreme Court Act 1933. his reasons for the rejection:- "According to the Ordinance, of course, these sums are not to be taken into consideration in the reduction of damages and indeed they have not been. But to allow the plaintiff interest on his damages for loss of support savours too strongly, in my view in these Circumstances, of double-dipping and in the exercise of my discretion I decline to award interest." In Horton v. Byrne (1956) 30 A.L.J. 583, the Court said, at p.585:- Limited "The general nature of the measure of damages under Lord Campbell's Act has often been stated. It is compensation for material loss. The compensation should represent the balance of the loss, reduced to terms of money, which the deceased's relatives incur in consequence of his death after deducting the pecuniary gains which on the other hand accrue to them from that event. The loss 1s usually a prospective one and all reasonable expectations of material advantage are to be taken into account." He gave High In Davies v. Powell Duffryn Associated Collueries, 11942} A.C. 601, when referring to equivalent English legislation, Lord Wright said, at pp.614 and 617:- "... the Fatal Accidents Acts ... give a claim for damages to be assessed on the balance of profit and loss and to _ be proportioned to the injury resulting from the death to the individual. The injury suffered by the individual from the death cannot be computed without reference to the benefit also accruing from the death to the same individual from whatever source. ..." "[Calculation of the damages] is a hard Matter of pounds, shillings and _ pence, subject to the element of reasonable future probabilities", Matters to be taken into account include the possibility of or, as here, the actuality of re-marriage with its attendant benefits. Willis v. The Commonwealth (1946) 73 C.L.R. 105. In my opinion, the plaintiff's remarriage was foreseeable in the relevant legal sense. So, too, was the possibility that, having regard to his age, he would marry a woman likely, whether a widow, divorcee, or single mother, to have already had a child or children and to wish to have more, The likelihood would then be that there would be a greater domestic burden in the household than had existed under the previous marriage. But it was also foreseeable that he would derive some benefit by way of more assistance to meet the greater domestic burden which the new marriage in such circumstances might be expected to create. In Hollebone v. Greenwood (1968) 89 W.N.(Pt.2) (N.S.W.) 105, Sugerman AP, with whom Holmes and Hardie JJA agreed, said at p.110:- "When a widow remarries, or iS likely to remarry, the question for the purposes of assessing damages under the Compensation to Relatives Act is whether and to what extent she and the dependent children are likely to be as well off in a pecuniary sense as a result of the remarriage as they were under their dependency upon their deceased husband and father." The dictum was approved by the Court of Appeal in Mackenzie v. McNamara [1970] 3 N.S.W.R. 421 where it was effectively -7- held that detriments created by a new marriage which had already occurred in that case, have to be taken into account with the benefits. See also Goodburn v. Thomas Cotton Ltd. [1968] Q.B. 845 at pp.854 and 855, per Davies LJ and Edmund Davies LJ respectively. Cf. Price v. Girle [1966] Q.W.N. 50. The damages which may be awarded the parties for whose benefit an action under the Ordinance is brought are such as the court may think proportioned to the injury resulting from the death of the person injured. Section 10(1). The damages are to be assessed on the balance of pecuniary benefit and loss, Counsel for the appellant submitted that the onus lay upon the respondent to establish the effect which the re-marriage had on the reduction of the pecuniary loss of the appellant. He cited Curwen v. James [1963] 2 All E.R. 619 in support of that submission. See also Mead v. Clarke Chapman & Co., Ltd. {1956] 1 All E.R. 44. In the view I take there must be very considerable doubt as to the correctness of the dicta in those cases which might seem to support the submission unless they be taken to refer to an evidentiary onus only and not to the burden of proof. See, generally, Currie v. Dempsey (1967) 69 S.R.(N.S.W.) 116 at pp.122-7, per Walsh JA (as he then was) and, particularly, Stewart v. Dillingham Constructions Pty. Ltd. [1974] V.R. 24 at p.28. In my opinion where benefit and burden are capable of being quantified in money terms, as must be the case . -8~ following Griffiths v. Kerkemeyer, there 1S every reason for taking both into account in deciding a claim under the Ordinance. It 1s for the appellant to prove loss and benefit if the net figure which is the damages proportioned to the injury 1s to be ascertained. No defence was filed in the action so that all damages remained in .issue throughout. The only onus which might have been cast on the respondent would have arisen when the appellant had established prima facie his dependency, the amount of his loss and the amount of any benefit required to be taken into account. As earlier indicated, the appellant proved a loss of $140 per week. It would appear from the evidence probable that the first mortgage of $40,000 on _ the Matrimonial home would not have been paid out until at least 1996 and it may reasonably be assumed that, had she lived, the deceased would have continued to contribute towards repayment of principal and interest as she had done to the date of her death. The appellant had no more to do in the second household but neither had he much less, Leaving aside for the moment questions of benefit and burden attendant upon his second marriage, his loss could therefore have been no more than the proven $140 per week. But it would have been necessary to offset against this any benefit which he received from his second marriage and which would have been capable of being calculated, it would seem, in the way commonly adopted following Griffiths v. Kerkemeyer (1977) -9- 139 C.L.R. 161, as "a hard matter of" money, "Subject to the element of reasonable future probabilities". However, if such a benefit, although received, had in practical terms come into being to meet a burden (I do not use the word pejyoratively) not present in the first marriage, I think the new burden ought to be offset against the new benefit. The evidence establishes satisfactorily, I think, having regard to the onus that I think was borne by the appellant, that save for one comparatively insignificant aspect the relevant benefit received from the second marriage and capable of Measurement in money was at least offset by the burden freshly taken up. It may be that the relevant burden was heavier than the benefit because of the obligations which the appellant undertook in relation to his present wife's child but in the way the appellant's case was conducted, I see no reason to consider this aspect further. His case was limited, rightly I think, to a claim that his loss of financial support from his late wife did not cease on his remarriage. It is true that evidence was led at the trial to show the weekly cost of supporting the two children. However, the value to him of his second wife's services was not established and if the cost of the children's maintenance was a relevant factor, allowance for that factor would have had to be made. I think, however, that some small allowance should have been made for the fact, deposed to by the appellant's sister, that his present wife "did a little bit -10- more now although he did a fair bit still". On the scanty material available I would assess this as equivalent to $20 per week. Before an award of damages ought to be interfered with, ",.. the court ... should be satisfied that the 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. It is not enough that there 1s a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency." Davies _v. Powell Duffryn Associated Collieries, Limited (1942) A.C. 601 at p.617, per Lord Wright. Bearing that in mind, I am nevertheless satisfied that the learned trial Judge erred so that the appeal should be upheld. The appellant gave particulars of his claim in part as follows:- "The plaintiff's present wife ... is intent on maintaining a role as a wife and mother and will not be able to reenter the workforce for a period of approximately 10 years. It is further alleged that the plaintiff will suffer an income loss in respect of a loss equal to the income of his former wife for a period of 10 years." I take him to have meant a period of 10 years from the date when particulars were given, 22 May 1985. If he meant something less I think it would have been too great a discount. I think that to calculate the damages. by reference to a period ending in May 1995 would have "11. sufficient regard to unfavourable contingencies and the imponderables which necessarily attend resolution of a case under the Ordinance. In my opinion there ought to have been judgment for the appellant calculated on the basis that he suffered a loss of $140 per week for 84 weeks to 4 August 1984, a loss of $120 per week for the period of approximately 50 weeks ending on 24 July 1985, the date of trial and a continuing loss thereafter at the rate of $120 per week, appropriately discounted by 3%, estimated to end in May 1995. No challenge 1s made to the out-of-pocket expenses allowed by the learned trial Judge. I would therefore assess damages, exclusive of interest, at $73,756.55. As to interest, I think that, as a matter of discretion, none should be awarded. The amount of $40,000 already recovered as workers' compensation more than covers the appellant's damages, both special and general, to date. He has had the benefit of that money for what I must assume, in the absence of precise evidence, has been a very large part of the period since his first wife's death. I therefore see no reason why he should have interest. In my opinion the appeal should be allowed and there should be substituted for the judgment of the learned trial Judge judgment for the appellant in the sum of $73,756.55. I certify that this and the ean. preceding pares are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice KEULY Roreala Kreulen Associate Datedt A Decew eur \VSG