CLEMENTSON v TIMMER [1990] NSWCA 45

CLEMENTSON v TIMMER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, MAHONEY JA and WADDELL AJA 16 October 1990, 13 December 1990

[1990] NSWCA 45

Personal injuries — damages DAMAGES — motor vehicle accident — husband killed — wife also suffers personal injuries — wife brings actions for damages for personal injuries and under Compensation to Relatives Act 1897 for self and two younger children of the marriage — trial judge (Enderby J) awards $450,000 under the Act — also awards $200,417 for economic loss in personal injuries claim — deducts $100,000 in the claim under the Act for the value of work which the wife would have contributed to a bakery partnership with her husband — whether over compensation of economic loss having regard to the two claims — whether double counting in the components of the judgments relating to economic consequences of the death of the husband — examination of competing expert evidence by accountants based upon the projected receipts of the bakery business, the anticipated retirement of the husband, had he not been killed and probable contribution to the business of the wife after children reach school leaving age — held (1) In circumstances of such dual claims it is necessary to avoid duplication of compensation or over compensation resulting from the overlapping of claims and of relevant heads of compensation. O'Brien v McKean (1968) 118 CLR 540, 555-6; Rosetti vy Government Insurance Office of New South Wales, unreported, Court of Appeal, 26 July 1977 applied; (2) However, on a proper analysis of the evidence and on the cases presented by the parties at trial, there was no such duplication; (3) Accordingly, the judgment entered in the personal injuries claim should be affirmed and the appeal against it dismissed with costs; (4) In the claim under the Act, on the evidence, the respondent's dependency in respect of the future loss occasioned by the death of her husband and his contribution to the bakery partnership should be reduced from 75% allowed by the trial judge to 70%; (6) Accordingly the judgment entered in the claim under the Act should be reduced by $33,730; (7) But the appellant should pay the costs of the both appeals having regard to the small amount of time in the appeals devoted to the only issue upon which the appellant succeeded. Compensation to Relatives Act 1897.