NORTHERN RIVERINA COUNTY COUNCIL v PEARCE [1990] NSWCA 140

NORTHERN RIVERINA COUNTY COUNCIL v PEARCE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS JA, CLARKE JA and MEAGHER JA 10, 11 and 12 September 1990, 21 December 1990

[1990] NSWCA 140

DAMAGES for financial loss — two stage calculation (from death to trial and from trial into the future) the approved method of assessment. ACCELERATED BENEFIT arising from deceased's death — query the rate of interest appropriate to employ in calculating present value (at deceased's death) of property to which plaintiff (widow) succeeds on account of death. WIDOW/PLAINTIFF AND DECEASED/HUSBAND PARTNERS IN RURAL ENTERPRISE — widow contributed no capital or significant labour to partnership — partnership profits separately distributed held the total distribution should be regarded as money generated by the deceased's efforts and provided by him for the benefit of the plaintiff and children — Malyon v Plummer (1964) 1 QB 330 and Di Battista v Molton (1971) VR 565 applied.

Samuels AP I have had the benefit of reading in draft the judgment prepared byMeagher JA, and I need not therefore recapitulate the facts which he recites. It seems to me that McInerney J made at least two errors which require this Court's intervention. First of all, a purely mathematical error which would, however, increase the assessment, if one accepts the learned judge's figures, by some $18,000; and, secondly, his decision to increase the amount of the allowance for 'dependancy' accrued from death to judgment to allow for inflation. This he did by applying an annual increase of 4%, the plaintiff having sought a very much larger percentage than that. The second error is one of principle, and offends the rule established in O' Brien v McKean (1968) 118 CLR 540.

It follows that the judgment below must be set aside, and the damages reassessed. It is not a case in which Robinson v Riley (1971) 1 NSWLR 403 applies, because there are, with respect, other flaws in the learned judge's calculations to which I will come. There is no credit issue in the case; the question of the extent of any allowance for the prospects of remarriage, which might ordinarily be illuminated by the opportunity to see the plaintiff, is well covered by his Honour's findings. Both parties consented to our reassessing rather than sending the case down for a new trial, and I feel that this Court is fully able to do so, the relevant requirements of s107 of the Supreme Court Act 1970 having been satisfied. I will use the words 'dependency' and 'dependant' to indicate the expectation of financial benefit lost by the deceased's death, and those who would have expected to receive it.