Lloyd-Jones v Pontil Pty Ltd [2003] NSWCC 15

Compensation Court of New South Wales

CITATION : Lloyd-Jones v Pontil Pty Ltd [2003] NSWCC 15 Irene D Lloyd-Jones PARTIES : v Pontil Pty Ltd MATTER NUMBER(S) : 6434 of 2001 JUDGMENT OF: Neilson J at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 07/07/2003, 08/07/03 EX TEMPORE JUDGMENT DATE : 07/08/2003

FOR APPLICANT: Mr P L Perry instructed by Booth Brown Samuels & Olney appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr P J Nolan instructed by Moray & Agnew appeared for the respondent.

JUDGMENT: 1. This is a claim under s 26 of the Workers Compensation Act 1987. The claim arises out of the tragic death of the late Colin Stephan Lloyd-Jones in an explosion at the North Parkes Mine on 24 November 1999. The applicant was employed by the respondent which is a drilling contractor. He was employed as a driller's assistant to work in the North Parkes Mine. 2. His period of employment with the respondent commenced on 17 October 1999. He appears to have worked merely five weeks prior to his death. However, the deceased had worked on and off for the current respondent over a period of some 10 years. 3. The applicant in these proceedings is Mr Colin Stephan Lloyd-Jones' mother, Mrs Irene Dorothy Lloyd-Jones, who resides at Raumati South in the Dominion of New Zealand. 4. To understand the claim it is necessary to look to the background relationship between the deceased worker and his mother. The applicant, Mrs Lloyd-Jones, was born on 21 March 1929. She is currently seventy-four years of age. In 1949 she married the late Brian Lloyd-Jones. There were 11 issue of the marriage. Those issue were Graham who was born on 22 September 1950, Susan who was born on 9 September 1952, Douglas who was born on 21 January 1954, Rose who was born on 28 July 1955, Colin the deceased who was born on 5 September 1958, Geoffrey who was born on 12 February 1960, Adele who was born on 17 May 1961, David who was born on 4 November 1962, Alexander who was born on 10 August 1965, Marilyn who was born on 19 October 1966 and Pauline who was born on 14 October 1967. 5. Mr Brian Lloyd-Jones died on 22 October 1973. At that time Colin was 15 years of age. The youngest of Mrs Lloyd-Jones' children was then 6 years of age. At the time of her husband's death the applicant commenced to receive a widow's pension in the princely sum of NZ$45.00 per week. It was obviously very difficult to raise so many children on such a meagre income and the applicant had to do odd jobs "to make ends meet". She worked as a cleaner and used her skills as a dressmaker to sew items which she sold to make income. 6. Colin left school at the end of 1973 when he was 15, the year of his father's death. An elder brother, Douglas, went to Australia in early 1974 and commenced working as a contract cleaner. Douglas undertook to Mrs Lloyd-Jones to care for his younger brother, Colin, and Colin left the matrimonial home in Wellington to move to Australia to work with Douglas in the contract cleaning business. 7. Over the next 10 years the contact between Colin and his mother was limited. They did not meet. They corresponded by greeting cards and on the telephone. However, it appears that probably at the end of the 1980's Colin commenced travelling to Wellington to visit and stay with his mother, I infer, during the Christmas holiday period. 8. The applicant's recollection of dates is not particularly satisfactory but that is completely understandable. I do know that the applicant sold the property in Wellington in 1993, probably, and then moved to Carterton, where she rented a property for approximately 12 months and then she bought the property at Raumati South where she now lives. 9. Prior to the applicant's selling the property in Wellington, Colin had visited on a number of occasions, which the applicant can recollect, and on those occasions Colin did substantial work on the applicant's property. On one visit of approximately four weeks Colin excavated beneath the house in order to build there a flat. It appears that the only one of his siblings then living at home was David, who had some health problems. He was a chronic asthmatic and had lost the sight of one eye in a motor vehicle accident. The inference to be drawn from his state of health is that he was not a particularly robust labourer. 10. Colin hired a jackhammer and excavated earth and rock from beneath the house, but more importantly removed concrete piers which were the foundations of the house. He then had to support the house by erecting concrete walls or barriers within which the flat was constructed. After the flat was constructed, David lived in it for a while with his wife. David and his wife then separated but a child was born shortly after the separation. David had obviously left the flat at the time of the separation but came to live in the flat again with a new de facto partner and he was living in the flat with his de facto partner when he died on 9 June 1992 as the result of a ruptured aneurysm. 11. What happened to David prior to his death and his commencing to reside in the flat indicates to me that the flat was constructed, not as initially thought in 1991, but earlier. 12. The important thing to note is that during the four weeks during which the flat was constructed, that the deceased, Colin, worked virtually non-stop on the property and hired, for example, the jackhammer with which to do the work. On another visit Colin erected a dividing fence on the block of land on which the applicant's house stood. This visit may have been between 27 December 1991 and 15 February 1992. 13. The length of the dividing fence was 140 feet and was built along a slope. The backyard of the property was towards the top of the slope, the front of the property was towards the bottom of the slope. Also the adjoining land which was being fenced off was at a higher level than the applicant's block, so that one can understand as the applicant told me, that not only was a fence erected but it was necessary to do some excavation in order that the fence would stand properly. The evidence discloses that the weight of earth from the adjoining property was one of the reasons that the old fence came down. 14. Again, Colin worked assiduously on the fence the entire period of his visit. He might only have one day off for each week of his visit. The applicant told me that Colin was a very methodical person and would work from 8.30 in the morning to 5.00 pm or 6.00 pm each evening. 15. When Colin visited the applicant he essentially provided food for the applicant and himself and any visitors that they had. The applicant told me of the deceased's going to buy a side of lamb and fruit and vegetables. When the deceased left to return to Australia to continue his work, he would leave a supply of provisions for the applicant which would keep her going for a further three weeks. 16. The provision by Colin of foodstuffs for the family home enabled the applicant to buy herself a few luxuries which included items of clothing, shoes and medication. 17. As I have earlier mentioned, David died of a ruptured aneurysm on 9 June 1992. Colin returned to Wellington on the following day and stayed with the applicant until 22 July 1992 when he returned to Australia. This period was seven weeks and was a period in which the applicant was consoled in her loss by Colin. 18. In the following year the applicant sold the property at Wellington and moved to Carterton. Whilst the applicant was living at Carterton Colin again visited and helped the applicant look for and purchase a property at Raumati South. 19. When I have regard to Exhibit C it can be seen that Colin visited New Zealand between 26 December 1994 and 2 March 1995, a period of some 10 weeks. 20. Two of the applicant's neighbours, Helen and Sean Ferris, in a letter addressed to the applicant's solicitors which has been tendered by consent, point out that the applicant moved into the property at Raumati South in 1995. The applicant's recollection is clear that Colin was present when contracts were exchanged for the purchase of the house at Raumati South, but was not present when she moved into the property. It appears therefore that the applicant's estimate of the move into Raumati South was inaccurate and the move should be seen as being early in 1995. 21. It may be that the applicant sold the property in Wellington in late 1993 or early 1994 then moved to Carterton for a year and in early 1995 moved into her property at Raumati South. I do accept, however, that Colin visited his mother for the 10 week period over Christmas and New Year 1994/95 and greatly assisted her in the selection and purchase of her new home and otherwise cared for her. 22. The deceased, Colin, visited the applicant twice more prior to his tragic death. Between 31 December 1995 and 23 January 1996, a period of just over three weeks, Colin visited the applicant at Raumati South and did substantial work on her property. He also visited the applicant between 27 December 1997 and 23 February 1998, a period of eight weeks, and again did substantial work on the applicant's property. 23. The house at Raumati South in which the applicant now resides is weatherboard and covered by a galvanised iron roof. The applicant referred to it as having been built as a weekender in the 1920's. An addition had been made to the original cottage which one might describe as the traditional wash house. It contained the bathroom, lavatory and laundry. When Colin visited on the first occasion he assisted in the construction and installation of new bathing facilities in the house and the former wash house was turned into a living area which gave the applicant a larger bedroom. 24. A drain was found to be blocked and had to be dug up for inspection and was found to be blocked by a dead hedgehog. This was essentially labouring work done by Colin. 25. The roof was leaking in the area where the wash house was joined to the original structure and the leaking roof was repaired by Colin. 26. On a further visit Colin did substantial work in the garden and surrounding area of the cottage. He removed a number of trees and cut them up for firewood. There are in evidence four photographs (Exhibit F) showing Colin doing labouring work with the trees on the property. That labouring work included a fairly large excavation. 27. Colin also poisoned and then cut down a bamboo grove. He pulled down then burnt an old wooden fence and had commenced the construction of a new fence prior to returning to Australia. 28. From the applicant's unchallenged description, it is clear that Colin worked constantly on every day of his visit to his mother in New Zealand on her property, making life much easier for her and making her life more enjoyable. There may have been a day off here and there and on those days off the applicant deposed to Colin's taking the applicant on drives or to visit friends, taking the applicant on outings which she otherwise would not enjoy. 29. On the evidence before me of the 10 children of the marriage of Brian and Irene Lloyd-Jones who survived David's death, it was only the deceased, Colin, who gave her support and comfort after David's death. 30. The eldest child, Graham, may live in Wellington at the current time but has or is about to move to Sydney. The applicant has had very little to do with him for the last 10 years. Susan lives in London. Douglas still lives in Sydney. Adele lives in Canberra. Roslyn lives in Wahroonga. Geoffrey lives in Taiwan. Alexander lives in the North Island of New Zealand, some 50 to 60 kms distant from the applicant, but he has separated from his first wife and the applicant sees very little of him. She does have some visits from his children. Marilyn lives in Japan and Pauline lives at Beaudesert in Queensland. 31. The applicant all told has 23 grandchildren but the evidence discloses that she only has contact occasionally with Nicola, a daughter of Alexander. Of the nine surviving children of Mrs Lloyd-Jones' children only one essentially, Alexander, now lives in New Zealand and has his own family to look after and has very limited contact with his mother. As I said, the evidence discloses that Colin was the only person who regularly gave support to the applicant. 32. Colin never married, had not lived in any de facto relationship and did not have any children. He was available to care for his mother and did so at his own expense by commuting every second year to New Zealand to be with his mother, to care for her emotionally and physically and to support her physically and economically. 33. The question for my determination is how to value the financial support which Colin provided to his mother. The pattern is clear that the deceased was visiting his mother essentially every second year for approximately seven weeks in each second year, for example, between 17 December 1991 and 15 February 1992 Colin was in New Zealand with the applicant for a period of some seven weeks. After David's death, Colin was again in New Zealand for approximately seven weeks. The visit in 1994/95 was 10 weeks, the visit in 1995/96 was limited to three weeks but the visit in 1997/98 was for eight weeks. I accept the submission of learned counsel for the applicant that I should average those visits as being approximately seven weeks every second year. 34. Colin was 41 years of age at the time of his death. From the photographs (Exhibit F) and from the applicant's description of Colin's athleticism the only inference to be drawn is that Colin was in rude good health and would easily have expected to live the normal span of years but for his tragic death in the North Parkes Mine. 35. The life expectancy for a 41 year old male in 1998 was 39.66 years, that is approximately 40 years. 36. Colin and his mother had discussed the future both indirectly and directly. Quite understandably Mrs Lloyd-Jones was concerned about who would be able to care for her in her declining years. For example, she raised with Colin who would provide and chop the firewood when the supply that he had made ran out. Colin assured the applicant that she need not worry about the future. Colin told his mother that if there were problems he would ring her and he would come back to care for her. 37. There were explicit conversations in which Colin made it clear in the event of any problem developing he would come back and care for either the applicant herself or for her property. Indeed the inference to be drawn from the conversations between Colin and his mother was that Colin eventually hoped to return to live in his native land, indeed the property at Raumati South was made to resemble Australia somewhat by the planting of 25 gum trees and wattle trees along the boundary. The garden that was constructed was to remind Colin of his period of life in Australia. 38. In mentioning the garden I should point out that the evidence discloses that when Colin was present four truckloads of soil were delivered and Colin hired a bobcat and spread the soil over the property in order that the garden might be created. That is just another example of the type of work Colin was regularly doing on the property at Raumati South. In that exercise also Colin broke up an old concrete path with a sledgehammer and then buried the remains of the path on one part of the property, probably to be covered over by the new garden. 39. The applicant herself as I said is now 74 years of age. She has had a cardiac stent inserted but has no ongoing cardiac problems. She told me that she has been given a rosy prognosis in that regard by her treating surgeon. The applicant has had a problem with high cholesterol that has now been reduced to a safe level by prescribed medication. The applicant otherwise is in good health and I have no hesitation in finding that she has a normal life expectancy. The life expectancy for a 74 year old lady under the 1998 life tables is 13.78 years and I find that the applicant has a life expectancy of 14 years. 40. The probabilities in my view are these: had Colin survived he would have continued to visit his mother for approximately seven weeks every second year. Colin and his mother had discussed a visit over Christmas and New Year 1999/2000 but Colin told his mother that he would not be visiting her as, I infer from what she said, he was dissuaded by what could be described as 'millennium hype' by those who do not know when a millennium begins. However, I infer that Colin would have visited his mother for seven weeks over Christmas and New Year 2000 and 2001 and over Christmas and New Year 2002/2003. 41. For the further 14 years of the applicant's life one would anticipate at least seven more visits by Colin to his mother. I will return to that finding in a moment. 42. The next question is how do I value the visits by Colin to the applicant over those seven week periods? There is in evidence a letter from a company known as "Jill's Of All Trades Limited" of New Zealand indicating that handyman, or perhaps one should say handywoman rates, are between NZ$25 and NZ$35 per hour. Jill's of All Trades Limited also runs a gardening company called the "Nice Little Garden Company", and gardening services are provided at rates between NZ$22 and NZ$50 per hour. That range for these services is accordingly between approximately NZ$25 and NZ$50 per hour. NZ$25 is currently A$20.75 and NZ$50 is currently A$41.50. 43. It appears to me therefore that the applicant if she paid for someone to provide to her the services which Colin provided would be paying approximately A$30 per hour. The evidence is clear that Colin worked assiduously for at least six days each week for at least eight hours each day. $30 per hour for eight hours per day for six days per week comes to $1440. However it must be moderated for two reasons at least. Firstly, the worker himself was not earning that much in Australia at the time of his death and secondly, although he was a bit of a jack of all trades or as the applicant described him "a typical New Zealand male able to do anything" he was not a professional gardener or a professional handyman. 44. Wage records are part of Exhibit K and the first indicates that Colin was earning $1051 per week gross or $887 per week net. The second indicates that over a period of eight days the applicant worked for seven days and his net earnings in that period were $1140.87. Over a fortnight Colin's net earnings were $1540. His income tax assessment notice for financial year end of 30 June 1998 indicates that the deceased's average gross earnings were $850 per week and his net earnings were $633 per week. 45. However, again it must be stressed that it was the value that the applicant received from Colin's work that must be estimated, not Colin's earning capacity. I would moderate $1440 per week to $1000 per week. The value in the labour provided by Colin to his mother during each visit should be seen as being $7000. To that must be added the value to the applicant of Colin's providing food for the consumption of his mother, himself and their visitors during each seven week period and provisioning the freezer, refrigerator and pantry for at least three weeks thereafter. One can see 10 weeks of provisioning which I estimate as being $150 per week, indicating a total figure of $1500 in food and groceries that Colin provided to his mother for her own benefit. It appears to me that the cost for two at the current time would be in excess of $300 per week. 46. Colin also used Mrs Lloyd-Jones vehicle when he was in New Zealand for his own use but also for the applicant's use and he filled it with fuel each week. I would estimate that fuel at $30 per week and 7 x $30 is $210. 47. The remaining financial input by Colin to Mrs Lloyd-Jones was the cost of materials and tools that Colin used in his various works and the value to Mrs Lloyd-Jones of, for example, Colin's repairing things, Colin's fixing the motor mower, Colin's hiring of machines such as the bobcat at Raumati and the jackhammer in Wellington, the hiring of equipment as it was needed for carrying out the handyman's work. That part of the new dividing fence that Colin erected at Raumati South was paid for by him. He also paid for galvanised iron that was used to repair the roof and paint that had to be placed on the roof and on the building itself. 48. It has been submitted by Mr Perry for the applicant that I should value that at $70 per week or $490 per visit. I think that is excessive. I would value that input as being approximately $290 per visit. 49. If my mathematics be correct then the value to the applicant of food provided by Colin, fuel for her car, and the cost of materials, tools, fuels and the hire of equipment for each visit amounts to $2000. Therefore I value the financial benefit to Mrs Lloyd-Jones of each visit by Colin at $9000. 50. Up to the present time Mrs Lloyd-Jones could have expected two visits from Colin, as I said in 2000/2001 and 2002/2003, so that the total value of financial support that Mrs Lloyd-Jones has lost to the current time is $18,000. In the future she could expect at least seven further visits at a financial benefit to her of $9000. 51. The next consideration, of course, is the unpleasant rule we must all face in that as we become older we become more feeble, less able to look after ourselves and prone to maladies. It is always possible that the applicant in the future might have some cardiac problems or perhaps even a stroke. As we have learned medically to care for our hearts, the incidence of death by heart disease has diminished. We have all commenced to live longer only to succumb to the more insidious and painful malady of cancer. Any of those sorts of problems might befall the applicant in the future. Even if they do not, one can expect a gradual deterioration in physical and mental health over the next 14 years. 52. Equally one can accept that the applicant's ability to look after her physical surroundings will also decline over the coming years. She will be less able to do things that she can now do. Even so, she points out to me, that it is likely the roof will need replacing, the fence which has been erected now needs repair. One can expect many problems in the future with a property that is essentially a dwelling house that is some 90 years old. 53. Equally one can note the applicant's evidence that her seaside property is often cold and buffeted by high winds. Storm or tempest could do damage to the property which, given his assurance to the applicant in the past, one would expect Colin to have attended to. Equally being New Zealand one can even postulate that there might be some earthquake damage to the property which might require Colin's assistance to repair. 54. There are therefore two things to consider: the applicant's declining health as she ages and increasing feebleness and also the deterioration of an old property which requires increasing amounts of repair. 55. The question is how to value the financial support that the applicant might have expected from Colin if he had survived the blast at the North Parkes Mine in the future, in light of his promise to care for his mother. It can be looked at, as counsel has submitted, in two ways. The first is to say well there might be three medical emergencies prior to the applicant's death which would require Colin's attention. Equally even if there were no medical emergency, it is likely that as the applicant became more feeble Colin would visit more regularly, perhaps instead of making a biennial visit to making an annual visit. 56. If there were a medical emergency, it is likely that the applicant would be in hospital for at least a week. It is likely that Colin would care for his mother emotionally but that does not found economic support. However, people are not kept in hospital for long periods of time these days and one could expect after a stroke or a heart turn discharge within a week and on Colin's returning with his mother to her home, to care for her for say a period of some six weeks. Whether Colin was caring for the applicant herself or for the house, one could still value that care as being $1000 per week. If one were to use Dial An Angel figures, one would come to a figure much greater than $1000 per week. 57. The other items of support that I have identified would also need to be slightly moderated because, for example, during the week when the applicant was in hospital, Colin would not be required to feed the applicant nor to drive her around in a motor vehicle. 58. It appears to me that I should value such three further visits as being worth $7500. 59. To apply the proper discount rate and to provide for vicissitudes it is necessary to reduce the global amounts which I have indicated to a weekly amount in present day values. On an annual basis the value of one ordinary visit is $3500 and the value of three extra visits at $7500 per visit averaged over a 14 year period comes to $1607. That makes an annual total of $5107 which can be seen to be $100 per week. 60. The discount rate which I apply is 3 per cent. That is the discount rate accepted by judges applying the common law. It was submitted on behalf of the respondent that a 5 per cent discount rate should be used because that is now used in assessing common law damages. It is correct, as far as I am aware, that that figure is used in assessing common law damages at the rate that is fixed by statute not by the common law. 61. Mr Nolan was unable to point me to any case in which it was held that the discount rate at common law is 5 per cent. Therefore I will use the discount rate of 3 per cent which has been established at common law. I am advised that the multiplier at 3 per cent over 14 years is 598.2, so the total for the future comes to $59,820. That must be discounted for vicissitudes. The traditional discount rate at common law in New South Wales is 15 per cent. That is fixed by decisions at the Court of Appeal which are binding on me. 62. I note that very recently McHugh J in the High Court has indicated that that discount rate is too great for ordinary wage earners: see De Sales v Ingrilli (2002) 77 ALJR 99, 193 ALR 130. However, his Honour's observation at par 99 of the decision is strictly obiter dictum. I think it appropriate to apply the traditional 15 per cent discount in this case as I am bound to in any event by authority. Of course here there are two sets of vicissitudes to be taken into account, what might happen to Colin in the future and what might happen to the applicant herself in the future. It is always possible that either could meet a tragic death. It is always possible that, for example, Colin may have married or moved himself out of reach of the applicant for some reason or another. 63. Applying the 15 per cent discount rate the figure of $59,820 should be reduced to $50,847. 64. I decline to discount for vicissitudes the amount of $18,000 which I have allowed for the past. That is because clearly no vicissitudes have occurred to the applicant which would call out for any discount and given Colin's age of 41 years at the time of his death, his robust athleticism and his failure to contract any meaningful relationship in his 41 years and given the short period of time which has elapsed between his unfortunate death and the current time I do not believe that any discount is applicable for vicissitudes to what may have happened to Colin. 65. The total of $50,847 and $18,000 is $68,847. 66. I have enquired of counsel about the funeral expenses, but I have been advised that they have been paid for by the respondent itself. 67. To the sum of $68,847 must be added interest on the amount I have allowed for the past. Mr Perry is claiming interest at the rate of 6 per cent per annum under the Jamberoo Accord rather than the rate under the Supreme Court Act. Under the accepted principles interest must run on $9000 at 6 per cent for the 3.63 years. If my mathematics and my calculator be accurate, that amounts to $1960.20. 68. The total sum then becomes $70,807.20. 69. I have enquired of the representatives of the parties whether any further reasons for judgment are required and am told that no reason is required. 70. I make an award for the applicant for $70,807.20 pursuant to s 26. 71. I order the respondent to pay the applicant's costs. 72. A submission was made to me that I should make a specific order that the respondent pay for the applicant's costs in travelling here at Sydney. That submission was probably based on some old case law but that case law is not applicable to the current claim. The authorities make it clear that where, for example, a cause of action arises in, say, Sydney where the applicant was living in Sydney and employed in Sydney but at a time prior to a hearing in Sydney betakes himself to some foreign part such as Perth for no reason associated with the injury, then the costs of that applicant's returning to Sydney for the hearing of his case are not proper party and party costs. 73. This is not such a case. The applicant was at all material times in New Zealand. She found it necessary to come to Sydney to enforce her rights therefore the respondent would under normal principles have to pay for the applicant's costs of attending at Sydney for the hearing of her case in any event. 74. I certify that the applicant's counsel is entitled to full refresher for today. 75. I certify additional conference $200. Mr P L Perry instructed by Booth Brown Samuels & Olney appeared for the applicant. Mr P J Nolan instructed by Moray & Agnew appeared for the respondent.