Lisle v Brice[2000] QDC 228

2. (a)
   no action lies in respect of the death of the Deceased by the taking of his own life pursuant to the provisions of the Supreme Court Act 1995, or at all, by reason of questions of public policy and the application of the maxim non oritur actio ex turpi causa;
3. (b)
   the death of the Deceased by the taking of his own life, and the loss and damage claimed by the Plaintiff pursuant to the Supreme Court Act 1995, was to remote a consequence of the accident of 6 July 1995 to be attributable in law to the said accident as it was an injury, loss or damage of a type or to the extent which could not have been reasonably foreseen;
4. (c)
   any loss and damage suffered by the Plaintiff and any other alleged dependants of the Deceased, was not caused by the accident but was caused by the conscious, deliberate and rationale acts of the Deceased in taking his own life or by reason of the circumstances pleaded in paragraph 2(b) hereof."

The defendants abandoned reliance on the doctrine of Ex turpi causa non orituiactio.

Personal and Medical History of Plaintiff.

4. [4]
   It is convenient to refer to the Chronology (Exhibit 28). It provides an overview of the events in the deceased’s life both pre-accident and post-accident. A copy is attached to the reasons for judgment for convenience. It was not contested and the evidence in the case substantially supports its accuracy. Of particular interest is the referral to the West Moreton Integrated Mental Health Service on 24^th January 1996.  By 1^st February 1996 when seen by Dr. Redman, the deceased was diagnosed with depression (Exhibit 13).  It should be mentioned that he had some symptoms of post traumatic stress disorder but was not diagnosed with same.

5. [5]
   Prior to this, on 25^th July 1995, he saw an occupational therapist (Exhibit 4).  Ms. O'Leary, in her report, records symptoms complained of by the deceased which are similar to those relied upon by the psychiatrists who later saw him and who diagnosed depression. Ms. O'Leary recognised that some psychological intervention was warranted some weeks after the subject accident.  Ms. O'Leary records that the deceased had undergone physiotherapy on three occasions between the accident and when she saw the deceased.  This was within the period of three weeks.  He was also complaining of tinnitus.  The deceased was concerned at that stage that the business he was running with the plaintiff and her brother, Trevor Harry, could not meet the existing orders for nutcrackers.  This fact may be of some significance in the overall analysis in this case.

6. [6]
   Evidence was called from various persons including the plaintiff, Mr. Harry, long time friends Wayne Francis Pinna and Denis Neal, the deceased’s mother, Jean Mackay, and his daughter Jodie Lisle. The general thrust of that evidence, which I accept, was that prior to the subject accident the deceased was a "happy go lucky” person who could cope with any setbacks such as unemployment and accidents. He had an enthusiasm for the business which made nutcrackers and which he was trying to develop. After the accident, he became more serious and withdrawn, he lost interest in the business and told his daughter and Mr. Pinna that he did not want to be a burden on anyone. The deceased also lost interest in his hobbies such as fishing and slot cars. This evidence, in itself, would satisfy me that the subject accident was a material contributing factor to his depression, if not the substantial cause in the first instance. It is also relevant that he complained of the tinnitus to some of these people as a source of worry and annoyance. The post-accident history provided by the deceased’s general practitioner, Dr. Weller, is consistent with the observations of the lay witnesses (Exhibit 14). Also, Ms. Leivesley’s evidence confirms that notwithstanding any vulnerability pre-accident, the deceased was coping and was accommodating any pre-existing health problems (Transcript 143.54).

7. [7]
   It is convenient to note at this stage that Dr. Black, an ear, nose and throat specialist, stated that the accident was not the cause of the tinnitus, but that at times of increased stress, anxiety or depression, it is more likely to be noticed by the sufferer. It is a manifestation of the sufferer’s “general coping mechanism or underlying psychological status that heightens their awareness rather than tinnitus producing an anxiety status or depression” (Exhibit 9). Therefore, it is open to infer that the extent to which the accident undermined the deceased’s coping mechanism has resulted in his being more aware of the tinnitus, which seemed to irritate him adversely.                             

8. [8]
   Exhibit 15B is a typed summary of the hospital notes to be found in Exhibit 15A, being those of the Kilcoy Medical Centre. Dr. Redman found the history to be typical of a patient seeing a general practitioner for various ailments. The entry of 18^th October, 1994,  was relied upon by the defence as showing that the deceased was suffering from depression prior to the accident:

“Still feeling lousy. Headaches, coughing – phlegm, query colour.    Patient states always unwell, for years either back or gastro-intestinal upset (extensively investigated, nil cause), or infection illness.  Recent chest pain with limp arms.  Investigated at Prince Charles Hospital – no results.  Patient appears to relish recounting these woes.  On pension for back.  “DSS want me to get back to work”, appears to consider this prospect (improbable?).

On examination – ears nose and throat OK, chest clear.

Amoxicillin (antibiotic)” 

9. [9]
   Both Dr. Redman and Dr. Wright, who treated the deceased, rejected the proposition that the deceased was suffering from depression as early as October 1994. I accept their evidence. They were in a better position than Dr. Walsh to assess the deceased. Dr. Redman saw the deceased as early as February 1996, whereas Dr. Walsh did not see him until February 1998. Dr. Walsh saw him on two occasions for medico-legal purposes. As pointed out by Dr. Wright, the history recorded on 18^th October 1994 was consistent with complaints by a hypochondriac.  A hypochondriac is one who has groundless fears.  Dr. Walsh attempted to distinguish the deceased’s condition.  However, it is recorded that there appeared to be no results confirming some of the complaints of the deceased.

10. [10]
    Dr. Redman, who first saw the deceased some 8 months after the accident, was unable to say that his episode of depression was triggered by the car accident. However, she did affirm that his post traumatic stress disorder symptoms appeared to be directly related to the car accident. His phobia to frogs was also exacerbated by the accident. Ms. Leivesley, a psychologist, saw the deceased some four months after the accident and made the following findings:

1. “a.
   The deceased was experiencing depression and distress in his daily life and the stressors were related to personal relationships, the general activities of daily living and work demands.
2. b.
   The tinnitus and headaches caused him considerable distress and contributed to feelings of anxiety and depressiveness.
3. c.
   His health concerns were elevated prior to the accident particularly his back problems.
4. d.
   Anxiety in relation to driving was related to the accident.
5. e.
   His mood change and attitude were related to the accident (Exhibit 5).”

11. [11]
    Ms. Leivesley expressed the view that the deceased’s pre-accident symptoms or health concerns made him more vulnerable to additional health problems. She also stated in cross-examination (133.50), that if one is unable to work or participate in the activities which one values, then that is certainly a precipitator to depression. The deceased had, because of his neck injury, I find, lost an immediate ability to carry on with the tasks expected of him in the business of making nutcrackers. Certainly, by January 1997, he had no neck pain as a result of his normal day to day activities. This was confirmed by Dr. Boys in Exhibit 10. Any ongoing problems were related to his back injury, which pre-dated the subject accident. This history was supported by the plaintiff in her evidence as to what she observed.

12. [12]
    The deceased also suffered from a degenerative neck condition. I accept Dr. Gillett’s opinion that the accident did accelerate the degenerative process due to the effects of this accident on this pre-existing degenerate neck condition (Exhibit 11). Any ongoing symptoms after say January 1997, would not be related to the accident. The importance of the orthopaedic evidence is that it establishes that the deceased was suffering an injury to the neck, which as at February 1996 left the deceased with a permanent partial disability of some 4% loss of bodily function. I accept the evidence of Dr. Gillett (Exhibit 7 p. 3) that with the fullness of time he would return to his work, but suffer some discomfort. As mentioned, by January 1997, the deceased had recovered from his neck injury but not, I believe, the psychiatric problems, which followed same.

13. [13]
    Probably the clearest evidence of the effect of the accident and the deceased’s inability to contribute fully to the business is found in Ms. Leivesley’s evidence at p. 140.42:

“What significance would that have in his overall psych, as it were, or his attitude, especially when you saw him in 1995? – I would have expected that to have had quite a substantial impact because it was my impression that he was very pleased with being able to establish a business.  He’d invented this nut cracker and had reached a point where, because of a review of it, they were getting orders.  So he perceived it as he had really been quite successful, one, in his capacity to actually create something saleable and to start up a business and, you know, given that he had been on the disability support pension for quite a time, then that would have been a big boost just to his self-esteem. A loss – that sort of loss would be substantial.  It’s like going from, you know, you’ve maybe worked for a long time, you’ve been unable to work for a lengthy time and then all of a sudden work, which people value highly, is within your grasp again and you lost it.

Self-esteem is an important consideration in treating depression? – Yes. because loss of self-esteem is a symptom that you always look   for in depression.”

14. [14]
    Ms. Leivesley did concede that there were other stressors which may have the deceased’s ability to cope (136.5). The significance if these are twofold. Firstly, they would have contributed to his problems together with the neck injury. Secondly, even if the symptoms of depression had subsided, other stressors unrelated to the accident may have precipitated his symptoms on an ongoing basis: the tinnitus, the altercations with his neighbour and police. Of course, permeating all of this is the fact that the deceased did not get as involved in the business since the accident. It had previously been his prime interest in life. Prior to the accident there is no doubt he was enthusiastic about developing the business. Whether he would have handled the stresses related to same is another matter. There may be concurrent causes of a medical condition. However, it cannot be said, as was contended by the defence, that the deceased went into remission. He was on medication throughout: (Ex 15B).

15. [15]
    The deceased was seen by Dr. Wright, a psychiatrist, in May, 1998. Dr. Wright’s diagnosis proceeded on an incorrect factual basis, namely, that the deceased had suffered a concussion which resulted in a period of unconsciousness. The deceased reported a loss of memory of events for a few hours prior to the accident. None of the medical reports or the ambulance report support those facts. Dr. Wright diagnosed an organic affective disorder with superimposed episodes of major depression. In cross-examination, Dr. Wright could not substantiate the former diagnosis. However, the symptoms reported at that time by the deceased and the plaintiff are consistent with a clear change in his personality post-accident. Apart from what Dr. Wright believed to be a head injury, he stated that the major depression had resulted from a psychological reaction to the accident (Exhibit 20). Reference was made in Exhibit 22 at page 3 to “Post Traumatic Stress symptomotology”. Dr. Wright opined that the accident “set off a chain reaction of events the ultimate outcome of which was a tragic one”.

16. [16]
    Dr. Wright confirmed in cross-examination that, having treated the deceased up until his death, the deceased had the capacity to discern the difference between right and wrong. The circumstances of the death and its planning as depicted from the photographs (Exhibit 38), indicated to Dr. Wright that the deceased was unlikely to be insane or acting under any delusions. Dr. Wright stated that the deceased had a biological predisposition to depression and that the accident may have triggered psychological symptoms or a post traumatic syndrome (102.30). He acknowledged that there were other stressors in his life. These included a previous back injury, financial difficulties and other health problems. Dr. Wright did concede that the deceased was possibly predisposed to depression (107.12). He also reiterated that the deceased believed that his life had changed since the accident (108.20). The deceased could not explain why.

17. [17]
    Dr. Walsh, a clinical psychologist called by the defence, was unable to find any causal relationship between the accident and the depression. He stated that there was a temporal relationship between the two events, but there were many other events in the life of the deceased which were of equal significance to the accident. It is only necessary for the plaintiff to establish that the said accident contributed to the depression and moreover the suicide. Nothing said by Dr. Walsh detracted from the clear observations of the lay witnesses referred to previously, and the evidence of Dr. Wright that the psychological affects of the accident did trigger the depression. No other reason was obvious apart from the accident (93.10). Dr. Walsh in chief stated that it is not impossible that people could become depressed in the space of a matter of weeks, particularly if it is clear to them that they have suffered a major and permanent injury from an accident (150.40). He went on to say that given the facts in the present case, it would be unusual.

18. [18]
    Dr. Walsh states that other stressors may have been the cause of the reactivation of the depression from time to time. The basis for this was that there were periods of remission, and that other events, for example, being assaulted were the more likely to precipitate a relapse (151.30). Dr Walsh may have overlooked the fact that the deceased was on drugs for depression from February 1996. I am satisfied, on the evidence of Dr. Walsh and on the medical records, that the deceased did not suffer a head injury in the accident. I am also satisfied, on the evidence of Dr. Redman and Dr. Walsh, that the deceased had a pre-existing personality which made him more vulnerable to depression. This finding is consistent the defence cross-examination.

19. [19]
    Dr. Walsh did support the view that a loss of self-esteem can be directly related to depression. He stated that “if a person loses the ability to work and their self-esteem is vested in …their career , then a loss of self- esteem could then develop”. This view was supported by Ms. Leivesley, and I find that this occurred in the present case. It also supported by those who knew him more intimately. This loss of self-esteem immediately after the accident contributed in a material way to the symptoms leading to his depression. Towards the end of his life he stated that he did not want to be a burden on anyone. It is common ground, on the medical evidence, that his suicide resulted from his depressed state (Dr. Walsh, 154.20).

20. [20]
    The nature of the cross-examination of Dr. Redman included attempting to establish that when she saw the deceased in February and thereafter, he was not complaining of neck symptoms or tinnitus. However, when one looks at the records of the Kilcoy Medical Centre (Exhibit 15B), there were complaints made of the neck problem from the date of the accident, headaches for two years as at February, 1998, and tinnitus from time to time through to February, 1998. Dr. Redman also confirmed that as at April, 1996, the deceased could not point to any one stressor as being the cause of his depression, but she added that this is not unusual when one is suffering depression. On 31^st July, 1996, the deceased was discharged from the care of the Health Service.  Unfortunately, his condition worsened and by November, 1996, he was given further treatment.

21. [21]
    In October, 1996, there is a note that he was worried about the business. In the realm of things, Dr. Redman did not see that as significant (67.43). In fact, by 5th December, 1996, she noted that he was enthused about the business (68.34). The reality, of course, as observed by those working with him was that he had lost interest in the business from the date of the accident. In April, 1998, the deceased had another relapse. The cause was unknown. At that point the business was going well. That success was, I find, as a result of the efforts of the plaintiff and Mr. Harry. The defence suggested in cross-examination (76.17), that as the business was the main issue mentioned by the deceased that it may have been the predominant stressor. Dr. Redman conceded that it may have been but that it may not have been the only stressor. I accept that synopsis. Although the business was doing well, the deceased was not as involved as previously. His loss of self-esteem was, I find, related to an inability to remain as involved as he was pre-accident. The initial precipitator which affected his attitude and which lead to his depression was the accident and the resultant neck injury. I accept the analysis in this respect of Dr. Redman (78.40). Dr. Redman did not accept that there was a pre-existing depressive illness which could be diagnosed (88.8).

22. [22]
    On the evidence before me and taking into account the above analysis, I find that:

1. a.
   That the deceased suffered from depressive symptoms some weeks after the accident which occurred on 6^th July, 1995.
2. b.
   That he was diagnosed in or about February, 1996 with depression.
3. c.
   That although there were other stressors prior to the suicide, the said accident continued to be a material contributing factor to his depression.
4. d.
   That the said depression was the cause of his suicide on 28^th October, 1998.  
5. d.
   That the deceased had a pre-existing vulnerability to psychological problems

Legal principles

Causation

23. [23]
    Probably one of the most helpful analyses of this area of the law is to be found in the decision by the New South Wales Court of Appeal in Kavanagh v. Akhtar (1998) 45 NSWLR 588 at 597(f).  After citing the High Court decision in March v. E. & M. H. Stramere Pty. Ltd. (1991) 171 CLR 506,  Mason P. at 597 stated that causation is to be approached as a question of fact to be answered by “applying common sense to the facts of [the] particular case”: March (at 515 and 523).  Reference was also made to the decision of Medlin v. State Government Insurance Commission (1995) 182 CLR 1 for the proposition that causation is not necessarily negated by the intervention of some act or decision of the plaintiff which constitutes a more immediate cause of the loss or damage than the defendant’s negligence.  Mason P. at 597 quoted the joint judgment from March p. 6-7:

“…in some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed.  An example of such a case is where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision.”

24. [24]
    In applying those statements to the present case, the evidence establishes that the deceased lost self-esteem as a result of his inability to contribute to the business as he formerly did, initially because of his neck injury. Also, in that state of mind, he was more aware of the tinnitus. In my view the accident was an direct cause in so far as the neck injury was concerned, and an indirect cause of the psychological problems which resulted in symptoms of post-traumatic stress disorder and then depression. In my view, it was unlikely that the depression would have occurred but for the deceased’s accident-caused injuries. Although the latter finding supports the conclusion that the suicide had been caused by the accident, it is not a compelling reason: Medlin op.cit. p. 9; March op.cit. 515-516.

25. [25]
    The conceptual distinction between reasonable foreseeability as a test for both remoteness of damage and causation has to be recognised: Chapman v. Hearse (1961) 106 CLR 112 at 122:

“…in effect, the argument of the respondent proceeded upon the basis that if the ultimate damage was ‘reasonably foreseeable’ that circumstance would conclude this aspect of the matter against the appellant.  But what this argument overlooks is that when the question is whether damage ought to be attributed to one of several ‘causes’ there is no occasion to consider reasonable foreseeability on the part of the particular wrongdoer unless and until it appears that negligent act or omission alleged has, in fact, caused the damage complained of.  As we understand the term ‘reasonably foreseeable’ is not, in itself, a test if ‘causation’; it marks the limits beyond which a wrongdoer will not be held responsible for damage resulting from his wrongful act.”

26. [26]
    In considering causation one has to have regard to questions of policy or “normative” questions: State Rail Authority v. Wiegold (1991) 25 NSWLR 500. 

27. [27]
    In that case, after an earlier accident, the plaintiff, Mr Wiegold, cultivated Indian hemp and was prosecuted. He claimed that he was induced into criminal conduct because of the accident. Applying the “but for” test and also public policy considerations, the court held that the crime could not be said to have been caused by the negligence of the wrongdoer. In Queensland, attempted suicide is no longer an offence. The relevant section was repealed in 1979. Aiding a suicide is an offence.

28. [28]
    In a case of Nominal Defendant v. Gardikiotis (1995-1996) 186 CLR 49 at 55, McHugh J. stated:

“Under the common law theory of common sense causation, a free informed and voluntary act of the plaintiff or a third party, which builds on a situation resulting from the defendant’s tort and causes loss or damage to the plaintiff, negatives any causal connection between that tort and the loss or damage.  That is so even though the act of the plaintiff or third party would not have occurred but for the defendant’s tort.”

29. [29]
    The plaintiff, Mrs Gardikiotis, sought to recover from the wrongdoer the cost of administering the funds being the proceeds of her successful action for personal injuries. This was not a case where the plaintiff had been under a legal incapacity of infancy or had sustained mental or physical impairment which necessitated management of her affairs. Although it was the act of the plaintiff which required the monies to be managed, the negligent act of the wrongdoer did not cause any disability. The court refused to allow the claim.

30. [30]
    In Kavanagh, the mere fact that the hair-cutting was a conscious act of the wife did not break the chain of causation, given the injury related reasons for that step.  Similarly, the deceased in the present case may have made a “free informed and voluntary act” but it did not necessarily mean that it broke the chain of causation.  The findings as discussed above point in an opposite direction.

Remoteness

31. [31]
    In Kavanagh op.cit. 600 Mason P. referred to the decision of Commonwealth v. McLean (1996) 41 NSWLR 389 at 402-407 and presented the following propositions:

1. “1.The "egg shell skull" principle makes a defendant liable for damage of an unforeseeable extent, but not for unforeseeable damage of a different kind.  Under this principle a defendant is liable for additional damage of an foreseeable kind suffered by a plaintiff who has some special vulnerability: Commonwealth v McLean (at 406E).
2. 2.In personal injury cases where psychiatric injuries supervene on physical injuries the plaintiff's right to recover depends on the foreseeability of psychiatric injury, at least where the harmful consequences supervene as a result of voluntary and deliberate conduct by the plaintiff or a third party:  Commonwealth v McLean (at 407),  citing Mahony v J Kruschich (Demolitons) Pty Ltd (1985) 156 CLR 522 and March v. E. & M. H. Stramere Pty. Ltd. (1991) 171 CLR 506.
3. 3.A wrongdoer is responsible for all damage of the same type or kind as that which was reasonably foreseeable, even if the particular damage, or its extent, were not reasonably foreseeable, or the damage occurred in an unexpected or unforeseeable manner:  Commonwealth v McLean (at 403E), citing Chapman v Hearse (1961) 106 CLR 112 at 120-121.”

32. [32]
    A starting point to discuss the issues involved is to determine whether, in a case where a deceased takes his own life, his dependants are prevented from recovering on legal grounds. The facts in Wright v. Davidson et al. (1992) 88 DLR (4^th) 698 are similar to the present case.  It was held by the Court of Appeal in British Columbia that there being no evidence of disabling mental illness, the suicide must be taken as a new intervening act, so that it was not a reasonably foreseeable consequence.  In that case, the deceased was injured in a motor vehicle accident for which the defendants were responsible.  She had suffered a minor head injury, and was also sore in the neck, shoulder and chest.  She had headaches, low back pain, dizzy spells, and noise in her ear.  She committed suicide some ten months after the accident.  Her husband sued the defendants under the equivalent of the Queensland Lord Campbell’s action legislation.  At first instance, it was held that there was a direct causal link between the accident and the suicide.  The trial judge followed an earlier decision Hayes Estate v. Green (1983) 30 Sask. R. 166 (Q.B.).    In the latter case, there was no evidence of any blow to the head but only a severe neck sprain, which gave the deceased pain and discomfort.  The suicide occurred some five and one-half months after the accident.  In Wright’s case there were no other alternative causes posited.   Mrs. Wright had no head injury and did not suffer from an incapacity at the time of her death.  Accordingly, it was held that her suicide was a novus actus interveniens, such that it could not be said that her death was a reasonably foreseeable consequence of any wrongdoing.  The Court applied the minority reasoning in Haber v. Walker [1963] V.R. 339, namely that in addition to causation, the death by suicide must have been a consequence of the negligence of the defendant which was reasonably foreseeable.  I accept that in a Lord Campbell’s action, that principle applies. Both counsel in the present case also accepted that approach.

33. [33]
    The Court of Appeal in Wright’s case did not follow the earlier English decision of Pigney v. Pointers Transport Ltd. [1957] 1 W.L.R. 1121 on the ground that it predated the decision in Overseas Tank Ship (U.K.) Ltd. v. Morts Dock & Engineering Co. (The Wagon Mound (No. 1)), [1961] 1 A.C. 388 (P.C.).  In  Pigney’s case it was held that liability results where the damage is directly traceable to a negligent act, and once the act is negligent the fact that its exact operation was not foreseen is immaterial.  The approach in Hughes v. Lord Advocate [1963] A.C. 837 seem more relevant.  One need not foresee the exact way in which an accident occurs, as long as one anticipates the general type of consequences which occur.  The question to be decided was not whether it is reasonably foreseeable in an abstract way that a suicide may occur after a car accident, but the much more limited question whether on the day in question it was reasonably foreseeable that negligent driving might result in the train of events which did in fact occur: Versic v Conners (1969) 90 W.N. (Pt. 1) (N.S.W.) 33.

34. [34]
    In Versic, the driver of a vehicle drowned in a suburban street after a motor vehicle accident.   Herron C.J. (p. 35), applied The Wagon Mound test as expanded in Hughes v. Lord Advocate op. cit.   His Honour referred to his reasoning in Beavis v. Apthorpe  (1964) 80 W.N. (N.S.W.) 36.  In that case, the plaintiff contracted a disease in the course of medical treatment.  The questions for determination were whether reasonable foresight of the category which includes the damage actually suffered is enough or whether reasonable foresight of the actual damage itself  is essential.  It was held that the liability of the defendant for the plaintiff’s tetanus depended not upon whether he could reasonably have foreseen that the plaintiff would have contracted tetanus but upon whether he could reasonably have foreseen injury to the plaintiff of that general nature or type.  The latter principle was applied in Sayers v. Perrin and Others (No. 3) (1966) Qd. R. 89 at 96-7.  Unlike Sayers’ case, Versic involved a Lord Campbell’s action.

35. [35]
    The majority decision in Haber v. Walker op.cit., has been questioned in Versic v. Conners op.cit. at 35 and by  Wanstall A.C.J. in Richters v. Motor Tyre Service Proprietary Limited (1972) Qd. R. 9 at 22, and not followed in Wright’s case op. cit. p. 705.  In Haber’s case, a majority of the Court of Appeal  held that in a Lord Campbell’s action, that The Wagon Mound test did not apply.  It was held that the specific legislation did not require that the suicide or death of the breadwinner  need be foreseeable.  The question is whether there is an unbroken chain of causation. I adopt the approach in Versic’s case and Wright’s case op.cit. See also the discussion in Zavitsanos v. Chippendale [1970] 2 N.S.W.R.495 at 499-500.

36. [36]
    The plaintiff’s counsel in the present case relies, at least in his written submissions, on the majority decision in Haber. Reference was made to the approach adopted by Demack J. in Kupke v. The Corporation of the Sisters of Mercy and Ors. (1996) 1 Qd.R. 300 at 304,306.  That is, the plaintiff can recover if the wrongful death is causally related to the accident.  In a similar factual situation to the present case, the Court of Appeal in Wright’s case held that the death was not shown to be a consequence of the negligence which is reasonably foreseeable.  If that were the law, the present plaintiff would fail in her action.  However, the plaintiff relies upon the decision of N.S.W. Insurance Ministerial Corporation v. Myers (1995) 21 MVR 295 at 296 (C.A.); Telstra v Smith (1998) Aust. Torts Rep. 81-487.  The defence seek to distinguish those cases on the grounds that they were both attempted suicides and are illustrations of the “eggshell skull” principle.  On the view I take of the facts, it is unnecessary to decide this vexed question.

37. [37]
    In the present case, it is not suggested that the deceased was insane within the meaning of the M’Naughten test or S. 27 of the Criminal Code. The act of hanging seemed to be a conscious and deliberate decision. Those facts do not necessarily disentitle a claim by a dependent: Reeves v. Commissioner of Police of the Metropolis [2000] 1 A.C. 360.  A deliberate and informed act did not negative causation where the defendant is in breach of a specific duty imposed by law to guard against that very act.  Once that breach is established, the deceased’s act in taking his own life did not entitle the defendant to rely on the defences of novus actus interveniens or volenti non fit injuria.   The decisions referred to seem to have moved away from the requirement that for the plaintiff to succeed, she must prove that at the time of the suicide the deceased was insane so as to be irresponsible within the meaning of the provisions of S. 27.  Counsel for the defence accepted that proposition.   The case of Murdoch v. British Israel Federation [1942] N.Z.L.R. 600 is of no assistance for that reason.  In Reeves’ case there was equal apportionment of liability.  Contributory negligence has not been pleaded in the present case, nor is it relied upon.

“Egg-Shell Skull”.

38. [38]
    The facts of the present case add a gloss to the principles discussed so far. The defence attempted to establish that the deceased, Mr. Lisle, has a pre-disposition to depression. I have found that the condition was not diagnosed but that he had a personality which probably made him vulnerable to psychological problems. I find that he was suffering from symptoms of a post-traumatic stress disorder which lead to depression as a result of the accident. A tortfeasor takes his victim as he finds him.

39. [39]
    In such cases there may be a predisposition to other conditions, upon which the accident may have acted as a precipitating cause entailing more serious consequences as would otherwise have been the case: Sayers op. cit. at 95.  This was touched upon by the Court of Appeal in Wright’s case op. cit. at 702.  The decision of Cotic v. Gray (1981) 124 D.L.R. (3d) 641 was referred to. 

40. [40]
    The majority in Cotic’s case applied the so called “thin-skull” doctrine to a deceased who was subject to emotional upset and fits of severe depression prior to the accident.  The wife of the deceased commenced an action seeking damages under the equivalent Lord Campbell’s legislation.  Following the accident, his condition degenerated and sixteen months later he committed suicide.  The Court of Appeal held that the “remoteness- foreseeability” argument is interwoven with two other principles namely, the “egg-shell” or “thin-skull” doctrine because of the deceased’s vulnerability by reason of his history of mental illness, and the novus actus interveniens defence or the alleged break in the chain of causation by the deceased’s suicide.  Similar matters are raised by the defence in the present case.  As pointed out in Cotic at 665, there is no difference in principle between an egg–shell skull and an egg-shell personality. 

41. [41]
    In Cotic’s case, it was unnecessary to decide whether the deceased’s suicide was  foreseeable in the general sense (Lacourciere J.S. at 665-6).   Because of the so-called “egg-shell skull” principle, the defendant has to take his victim as he finds him, a psychologically vulnerable individual.  The Court of Appeal assumed that the jury were satisfied that the accident , while not necessarily the sole cause, was a direct and substantial cause without which the suicide would not likely have happened.  In the present case, based upon the facts discussed previously, I make a similar finding: see also Telstra Corporation Limited v. Smith (1998) Aust. Torts Rep. 81-487 at p. 65,263.   Wilson J.A., in Cotic’s case, stated that the concept that the wrongdoer takes his victim as he finds him has little to do with foreseeability.  It was further stated that once liability for the accident is admitted, then the only issue in an “egg-shell skull” case is causation.  In the context of this case, the remarks of  Wilson J.A. at 673 seem apposite:

“In my opinion, it is inappropriate in a thin-skull case to view the peculiar vulnerability of the victim as causative in law.  Undoubtedly as a factual matter the decease’s psychiatric condition played a role in his subsequent suicide but the law would be taking away with one hand what it had given with the other if it were to permit the victim’s peculiar vulnerability to break the causal chain, or constitute a novus actus interveniens or, worse still, be treated as the effective cause of his damage” Negretto v. Sayers [1963} S.A.S.R. 313 at 319.

42. [42]
    Cases such as Beard v. Richmond and Others (1987) Aust. Torts Reporter 80-129 can be distinguished as the anxious disposition in that case could not be compared to “an eggshell skull”.  Unlike the present case, the neck injury and resulting pain of the plaintiff in Beard’s case, did not cause the anxiety which predisposed the plaintiff to succumb to the palliative effects of drug abuse.  It was probable that she would have decided to abuse drugs at some time.   The principles referred to in such cases as The Wagon Mound (No. 1) and Hughes v. Lord Advocate do not affect the doctrine of the “egg shell skull”: Smith v. Leech Brain & Co. Ltd. [1962] 2 Q.B. 405 at 414.

Limitation of Damage involving “egg-shell skull”

43. [43]
    One other principle should be referred to. It was put, with respect, correctly in Cotic’s case at 669 by Lacourciere J.A.:

“There is a qualification on the “thin-skull principle”, and it is that if the victim’s condition  was such that the damage suffered was bound to happen in any event due to a pre-existing condition, then recovery is limited to compensation for the acceleration of the inevitable damage: see Negretto v. Sayers [1963] S.A.S.R. 313 at 319.”

44. [44]
    In the present case, I am not satisfied that the suicide would have happened in any event. Certainly, once the accident occurred, there were other stressors in the deceased’s life which contributed to his depression. The fact that there are voluntary acts of the plaintiff, or other stressors intervening, does not prevent the initial negligence of the first defendant in the present case from being a cause of the injury or death. The question is whether the suicide is or is not, for purposes of the law, caused by the motor vehicle accident: NSW Insurance Ministerial Corporation v. Myers (1995) 21 MVR 295 at 297.  

Application of Legal Principles

45. [45]
    I have held that the accident which involved the deceased contributed in a material way to the depression. The suicide was a result of that depression. In cases where there are contributing causes to a condition, the onus is upon the defence to “unravel” same: Watts v. Rake (1960) 108 CLR 158.   I am not satisfied “that had there been no accident he would eventually and prematurely have been incapacitated by the seeds of disability within him” (p. 160); see also the discussion in Sayers op. cit. 94-95.  I am satisfied that the said accident continued to contribute to his depression as his disinterest in being involved in the business occurred immediately after the accident and seemed to be a concern for him.  He recognized this with statements such as “not wanting to be a burden” to others.  

46. [46]
    The deceased was vulnerable psychologically. The said accident precipitated his depression and continued to contribute to it in a material way. Liability for the accident has been admitted. I am satisfied that the accident was a cause of the deceased’s suicide. Relying on the evidence of the lay witnesses referred to previously, his pre-accident disposition and the post-accident disposition to which they refer, it is clear as a matter of common sense that the subject accident continued to contribute to his depression. Given his vulnerable personality, any lack of foreseeability does not prevent the plaintiff from recovering. In that event, the plaintiff has a valid cause of action against the defendants.

Quantum

Estate Claim

47. [47]
    The claim for Griffiths v. Kerkemeyer is agreed at $800.00. There was a need for the deceased to be cared for after the accident and there were some tasks which he could not do (Exhibit 33). That exhibit also contains a claim for travelling. This seems fair and reasonable given the previous findings. The sum of $3,296.67 is allowed for under that head of damage. Other out of pocket expenses are referred to in Exhibit 32. These were not challenged. These include medical, pharmaceutical and travelling, and do total some $5,483.02. In respect of interest on $4081.27, the rate of 10% is allowed for the period of 3.35 years making $1,367.22. This produces a total of $1304.00 for interest. Other damages include funeral expenses of $3,592.00 and the costs of obtaining administration which is $2,424.90. The interest on the funeral costs is $424.00 being 10% on that sum for 1.75 years.

Past Economic Loss

48. [48]
    At the date of the accident, the deceased was 43 years of age. His marriage to the plaintiff was his second marriage. In or about October, 1987, the deceased suffered an injury to a pre-existing back condition which prevented him from full-time work thereafter. On 12^th April, 1990, he was awarded a disability pension.  In the financial year ended 30^th June, 1994, the deceased and the plaintiff received some income from the business which produced nutcrackers.  The deceased’s share was a modest $213.00.  The business was carried on as a hobby up until the accident in July, 1995.  The deceased was very enthusiastic about the business.  The deceased had taken over the prototype of the nutcracker from another person who had agreed to share the patent with him.  The patent expired last December.  Interest has already been shown to make a mould to manufacture the nutcracker.  This may have a catastrophic effect on the business, as presently the plaintiff and her brother Mr. Harry manufacture the item by hand.  It is open to them to upgrade their process.  Some capital funds may assist. 

49. [49]
    Initially, the process of manufacture involved some drill presses and the jaws part of the nutcracker being made in Brisbane. As at 30^th June, 1995, prior to the accident, the demand was growing for nutcrackers.  The deceased, the plaintiff and Mr. Harry had applied for finance to expand the business.  They intended to borrow $6,000.00 each to expand the business (Exhibit 36). This “Venture Summary” is dated 6^th February, 1995, but was never finalised.  The bookkeeping records (Exhibit 34) show that for the financial year ended 30^th June, 1995, the total earnings were $21,144.65 and the total expenditure was $16,865.52.  This leaves taxable income of $4,279.00. The deceased, according to the plaintiff, contributed some 80% of the output for the business, prior to the accident.  This was challenged by the defence.

50. [50]
    At the time of the accident the deceased was in receipt of a Disability Support Pension of $141.00 per week. An analysis of the Profit and Loss Statements of the business trading as “TJ’s Nutcrackers” for the years ended 30^th June, 1996 to 2000 has been done by a Mr. Dooley, a chartered accountant with Messrs.Vincents.  Prior to the death of the deceased, the business was operated via a partnership and after his death on 28^th October, 1998, the business was transferred to the plaintiff and she has continued to operate the business as a sole trader.  Her brother, Mr. Harry, is the only employee most of the time.

51. [51]
    The claim by the estate in relation to past economic loss between 6^th July, 1995 and 28^th October, 1998 is $24,317.00.  This, according to Mr. Dooley, represents 80% of the total wages incurred by the partnership between that period.  Mr. Dooley notes that the total wages paid by the partnership were paid to Mr. Harry.  The basis for this claim is that if the accident had not occurred the deceased would have done the work and that the cost to the partnership is the cost of Mr. Harry’s wages.  The basis upon which Mr. Dooley rejects this is not accepted as :

1. (i)
   the “Venture Summary” was never given effect to
2. (ii)
   Mr. Harry received a nominal sum by way of remuneration of about $200.00 prior to the accident.
3. (iii)
   He may have assisted initially in the running of the business but he basically took over the manufacturing after the accident.

52. [52]
    It may be that as the business expanded, Mr. Harry would have been employed full-time, but I find that that was unlikely to occur until the turnover increased considerably. The back condition of the deceased would, I find, have prevented him from producing the output reached by 30th June, 1997. By that stage, his direct contribution in a temporal sense may have been as high as 50% only. He did do most of the deliveries until his death. There were also the other stressors in his life unrelated to the accident which may have restricted his contribution from time to time. If the deceased had been capable of performing 80% of the work required until his death in October, 1998, then the net loss to the business would be $21,471.00. This figure is not really challenged by counsel for the plaintiff. However, this must be further discounted to allow for those other stressors, but adjusted upwards for his overall contribution particularly the time he gave. I accept that prior to the accident he was working at least six (6) hours per day. An allowance of 50% of the wages paid post accident is somewhat conservative as the deceased’s lack of capacity post accident is likely to have exceeded this. Mr Harry’s contribution is evidence of this. I allow the sum of $15,000.00 for past economic loss from the date of the accident to the death of the deceased.

53. [53]
    Summary of Estate Claim

Griffiths v Kerkemeyer $800.00

Pharmaceutical and travelling 5,483.00

Interest 1,367.22

Funeral costs  3,592.00

Interest 424.00

Letters of Administration  2,424.90

Economic Loss to date of death  15,000.00

Interest Past Loss 5% for 3.25 years

and 10% for 1.75 years 5,062.00

$34,152.12

Dependency Claim

Quantum

54. [54]
    Loss of Dependency Claim - Section 17 Supreme Court Act 1995.

S. 17 provides as follows:

“Whensoever the death of a person shall be caused by a wrongful act neglect or default and the act neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof then  and in every such case the person who would have been liable if death had not ensured shall be liable to an action for damages notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount  in law to crime.”

55. [55]
    The defence submission is that the claim does not fall within a Lord Campbell’s action or a loss of dependency claim. It is submitted that the relationship between the parties was a commercial one and existed as at the date of the death of the deceased. If this submission were correct, then the plaintiff would not be able to sue to recover damages: Nowland v. Boardman (unreported decision of Lee J., Supreme Court of Queensland, 8^th March, 1996).  It was held in that case that the loss under the statute must be limited to that which is related to the cessation of the matrimonial relationship, as opposed to the cessation of their business relationship.  Put another way, did the provision of the assistance or services rendered by the deceased arise out of their matrimonial relationship?  With due respect to his Honour, I accept and apply that statement.  I accept the submissions of the defence that the decision of Husher v. Husher (1999) CLR 138 does not affect that statement.

56. [56]
    The bases upon which I find that the arrangements between the parties involved their matrimonial relationship as distinct from a commercial arrangement are as follows:

1. a.The parties married on 7^th March, 1981.
2. b.The parties were both receiving a disability pension as at the date of his death.
3. c.In the year ended 30^th June, 1995, the deceased received the sum of $1,903.00 from the nutcracker business which was still in the “hobby” stage.
4. d.The proposed “Venture Summary” document dated 6^th February, 1995 was never proceeded with.  It envisaged that there would be a partnership between the deceased, the plaintiff and her brother, Mr. Harry.  That never occurred and the business continued to be run from a shed on the parties’ property.  The plaintiff received the deceased’s share of the property on his death.
5. e.It was the initial enthusiasm of the deceased which kept the plaintiff motivated to continue the business, notwithstanding his interest flagged after the accident.
6. f.That as the business grew, the parties may have employed Mr. Harry to assist them to meet demand, but the hub of the business revolved around the marital relationship.  It may be that once the business grew to a certain level, the parties would have become partners, each contributing equally.  That position may never have been achieved, as Mr. Harry and the plaintiff run the business themselves. 
7. g.It was never suggested that the parties income went  other than  to the joint household.  With two children and living on a pension, even with the modest extra income, it would be subsistent living.   It is reasonable to infer that the substantial part of the income went to meeting the needs of life. 
8. h.The deceased, who had the greater capacity to earn, was required to share his earnings with his family.  The role of Mr. Harry grew as did his earnings, particularly on the death of the deceased (Ex. 27 Appendix 1 and Ex. 40).  Prior to the accident he would only help a few hours per week (200.1-10).  The deceased would work for some hours, have a rest and then continue.   The business was run conveniently as a family concern.  The plaintiff’s contribution prior to the accident was limited to a few hours per week.  Her contribution also increased on her husband’s death.
9. i.The distribution of the income for the years ended 30^th June, 1996, 1997 and 1998, show that the wages and profits were not distributed commercially.  The efforts of the plaintiff and the deceased gave them less than two-fifths of the total (see the table below).

57. [57]
    In the circumstances, the passage in Burgess v. Florence Nightingale Hospital for Gentlewomen [1955] 1 Q.B. 349 at 362  seems apposite:

“It seems to me that when a husband and wife, either with separate incomes or with a joint income to which they are both beneficially entitled, are living together and sharing their expenses, and in consequence of that fact their joint living expenses are less than twice the expenses of each one living separately, then each, by the fact of the sharing, is conferring a benefit on the other.  I think that such a mutual benefit clearly arises from the relationship by virtue of which they are living together, namely, the relationship of husband and wife, and accordingly comes within [Lord Campbell’s Act}.”

Assessment of Quantum

Methodology

58. [58]
    As at the date of death viz. 28^th October, 1998, only the plaintiff and her son Bobby Jay Lisle were dependent on the deceased.  John had left school and was eligible for Social Security  benefits.  He was no longer dependent.  Bobby was born on 25^th October, 1984.  He is still at school (Grade 11).  It is anticipated that he has about three more years or so of dependency.  This was not contested.  Applying the table in Luntz, some 70% of any contribution made by the deceased to the household can be apportioned to the plaintiff and Bobby.  The percentage was not challenged.  The only concession made by the defence was that any difference between the pension amount pre-death and post-death can be so apportioned.   As between the plaintiff and Bobby, it is proposed to allow a two thirds to one third apportionment from October, 1998 to say October, 2003, or five years.  Thereafter, the plaintiff is entitled to the  whole amount. However, it was submitted that there was no direct evidence that the deceased made such payments to the household.  There was evidence that he was a person of moderate needs.  I infer that the parties had no savings to invest in the business, as the proposed venture (Ex. 27) was an attempt to raise funds.

Loss of support - pension of deceased.

59. [59]
    The difference between the joint pensions and the post-death pension received by the plaintiff was $260.00 per fortnight, or $130.00 per week. If one allows 70% of that figure, then the loss of dependency referable to the pension only is say $90.00 per week. This does not take into account any increases and so is a conservative figure. From the date of death to trial the number of weeks is say 92 weeks. The loss to the dependents is $8,280.00. The amount to be allowed for the future is dependent on the life expectancy of the deceased had he not had the accident. In argument, the defence quoted 24 years which would have taken the deceased to age 73. It was not suggested that the pension otherwise received by the deceased would decrease once Bobby became independent. On the other hand, no allowance has been made for any increase since death. The defence initially suggested 24 years as an appropriate life expectancy. If one allows $90.00 per week for 24 years using the 3% tables, the amount would be $80,721. Over 16 years the figure would be $59,868.00. This figure has used the base figure of $90.00 with a multiplier of 665.2. Twenty four years was described as generous by counsel for the plaintiff. I agree. One has to discount that for the usual vicissitudes of life and the added discounting factors in the present case.

60. [60]
    In relation to the loss of support as a result of the loss of pension, I allow the following:

a. Date of death to date of trial $8,280.00

b. Date of trial for 16 years say 60,000.00

The share for Bobby is : a. one third  $2,760.00

b. one-third for 3 years  4,488.00

-------------

$ 7,248.00

Interest on $2,760.00 at 5% for 1.75 years 240.00

------------- 

$ 7,488.00

-------------

The share for the plaintiff is: a. two-thirds  5,520.00

$61,032.00

Interest on $5,520.00 at 5% for 1.75 years   483.00

-------------

$61,515.00

-------------

Earnings from the business

61. [61]
    The plaintiff gave evidence that the deceased’s contribution prior to the accident was 80% of the joint contribution. The plaintiff said that she would work some three hours per week pre-accident. The deceased would work 3 to 4 hours in the morning, rest, and then do a similar amount of time in the afternoon. Obviously, the 80% is therefore a conservative figure pre-accident. The parties were entitled to earn up to $150.00 before their pensions were affected. If one looks at the total of the wages paid and the net profit over the period, the following is shown in respect of the years ended 30^th June:

1995 1996 1997 1998 1999 2000

Wages  295 1,480 14,929 10,062 13,515 20,370

Profit 4,279 2,330 2,821 4,975  5,945 23,295

-----------------------------------------------------------------------------------------------------------

4,574 3,810 17,750 15,037 19,460 43,575

Ex. 29,34 Ex. 27 Ex. 27 Ex. 27 Ex. 27 Ex 31

62. [62]
    In so far as the pre-death period is concerned, the estate claim, it is dealt with elsewhere in these reasons. The comments made by way of background are apposite to the present discussion. The defence has submitted that apart from the loss of pension, there has been no evidence presented which would allow a court to assess damages. Reference was made to such cases as Ray Teese Pty. Ltd. v. Syntex Australia Limited (1998) 1 Qd.R. 104 and Lanestar Pty. Ltd. and Anor. v. Arapower Pty. Ltd. and Ors. (BC9605947 an unreported decision of the Queensland Court of Appeal given on 22 November, 1996).  These were both commercial cases involving loss of profits.  This is a dependency action.  There is sufficient evidence before me to provide a basis to assess the loss of support to the dependents.  The plaintiff has given evidence as to the hours worked by the deceased pre-accident.  There are reliable tax returns for the relevant years and details of the earnings of the replacement labor  provided by Mr. Harry.  The analysis appears above. 

63. [63]
    Although the business flourished, the profits to the plaintiff and the deceased did not. It was necessary to get Mr. Harry more involved in the business as the popularity of the nutcracker improved. His assistance was more crucial as a result of the accident and the loss of interest and motivation of the deceased following the accident. This has been discussed earlier. I accept that prior to the accident, the deceased did provide some 80% contribution of the labor required for the manufacturer of the product, marketing and deliveries. Given the limited contribution of the plaintiff pre-accident, this figure would have more than allowed for any contribution by Mr. Harry, at least pre-accident. Thereafter, I make the following findings:

1. a.The plaintiff has shown that there was a loss of earning capacity on the part of the deceased post-accident.  He took a less active role.  This was supported by the other lay witnesses and particularly Mr. Harry.  It has already been discussed in these reasons that the deceased’s physical incapacity and later his psychological state was as a result of the accident.
2. b.The need to involve Mr. Harry on a more extensive basis was as a result of the lost capacity of the deceased to do the work required.  It is accepted by counsel for the plaintiff that the evidence does establish that the deceased had a pre-existing back condition prior to the accident.
3. c.There were other stressors which would have affected the deceased from time to time and apart from the accident would have required him to seek casual assistance in the manufacturing of the nutcrackers and deliveries.
4. d.Although it may be difficult to make a determination about a weekly loss, a lump sum approach is often adopted or an estimate made:  Jones v. Schiffmann (1971) 124 CLR 303 at 308.    A deduction for the deceased’s needs would be necessary.
5. e.Having observed the plaintiff, I accept her evidence that she has no prospects of re-marriage, at this stage.  It is intended, however, to make some deduction for that contingency.
6. f.The production of the business increased because Mr. Harry obtained more machinery and so increase the capacity to produce without putting on additional staff (196.1).  The deceased may have done this in any event.
7. g.Even with the increased production, supply has not always met demand and extra staff has had to be employed (196.50).
8. h.That with the loss of the patent, it is possible that other competitors may produce the nutcracker and more efficiently if a mould is used.  There has already been one approach by an interested manufacturer.
9. i.Without the help of the deceased, even after the accident, Mr. Harry could not have met the demand (201.10-31).  The deceased also did the deliveries.
10. j.The accident and its effect on the deceased had a dampening effect on the development of the business (19.55)
11. k.As any profits were split between the parties it is necessary to allow for the lost tax benefit of splitting income.  The plaintiff now is entitled to all of the net proceeds. 
12. l.The fact that the deceased had a vulnerable personality requires substantial discounting of any assessment.  This will be taken into account by limiting his productive years in the business to seven (7).

64. [64]
    If one considers the net amount of his likely earnings, then one must allow for the fact that the deceased would have been contributing less by way of the actual hours as time went on. After the death, and for the year ended 30^th June, 1999, a net loss for the deceased may have been in the range of lost capacity of $100 to $150 per week, if one assumes that the deceased would have contributed to a substantial proportion of the contribution of Mr. Harry but for the accident.  This is calculated on the basis that after the accident if his contribution was only 50% of the overall contribution as reflected by the wages paid, then the net weekly sum would have been in the vicinity of half of $13,515 less tax.  This would give a loss of some $130.00 net per week approximately.  Of course, the wages paid the following year increased to $23,546.00. Half of this after tax is approximately $8750.00 per annum or $168.00 per week.  The tax deducted is approximate only as variables such as the Medicare levy and the dependants at the time complicate matters.  Having considered all of the factors  referred to, it is proposed to allow a loss of $100.00 for seven years.  One has to determine the lost capacity.  It cannot be an exact arithmetical calculation based upon different formula. The dependency would be 70% of $100.00 per week for 92 weeks being the pre-trial period.  The total is $6,440.00.  In relation to the post-trial period during which Bobby is dependent, namely 3 years, using the 3% table, $100.00 loss per week would amount to $14,960.00.  During that same period the apportionment continues to be one third to Bobby and two-thirds to the plaintiff.  The loss of $100.00 per week over seven (7) years is $32,930.00.  After three years, the plaintiff’s dependence reduces to 65% (Luntz “Assessment of Damages” 3^rd ed. Table 9.1).

The distribution of the income from the business would be as follows:

Share to Bobby:

a. one third of $6,440 $2,146.00  

b. one third of  70% of $14,960 $3,490.00

5,826.00

Share to plaintiff:

a. two thirds of $6,440. $4,294.00

b. two thirds of  70% of $14,960 6,982.00

c. Balance  $32,930 

14,960. 

----------

Because the plaintiff gets the benefit of all of the profits, no allowance has been made in that regard.  It is only the lost capacity which has been assessed.

1. 1.Summary of Damages

Estate Claim $34,152.12

Lord Campbell’s action

Bobby Lisle  -  loss  from pension of deceased $7,488.00

Plaintiff  -  loss  from pension of deceased  $61,515.00

-  loss from business earnings $22,956.00 $84,471.00

----------------