Thornton v Lessbrook Pty Ltd[2010] QSC 308

SUPREME COURT OF QUEENSLAND

1. The plaintiff was engaged to be married to Ms Sally Urquhart. Their wedding was planned for 9 September 2005. On 7 May 2005 Ms Urquhart was killed when the aircraft in which she was a passenger crashed on approach to the Lockhart River airport in Far North Queensland. 

2. The plaintiff’s claim is for pecuniary loss pursuant to the Civil Aviation (Carriers’ Liability) Act 1964 (Qld) (“the State Act”).  This claim resembles the statutory cause of action traditionally known as a Lord Campbell’s Act action.  It involves a determination of the pecuniary value of the financial support and services that Ms Urquhart would have been expected to provide to the plaintiff if she had lived.  The State Act applies Part 4 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (“the Commonwealth Act”).  In essence, Part 4 of the Commonwealth Act creates a system of no fault liability for aircraft passengers who are injured in an accident.  Section 31 limits the liability of a domestic carrier, such as the defendant, to $500,000.

3. The plaintiff was a police officer at the time of Ms Urquhart’s death, and still is. Ms Urquhart was a police officer with a very promising future. She joined the police force with a degree in Science and an honours degree in Law. The police force was her chosen career in preference to a career in the legal profession. In her relatively short career as a police officer she showed qualities that marked her for promotion.

4. A senior officer who had the opportunity to witness her performance in Cairns and remote indigenous communities gave evidence about these qualities.  In addition to the academic qualifications gained prior to appointment to the police service, Ms Urquhart had personal qualities that made her suited to serving as a police officer.  She had a deep commitment to serving her community.  She had skills in communicating with, and working with, others.  Acting Assistant Commissioner Hollands’ evidence about career paths open to Ms Urquhart and the evidence of all witnesses about her attributes make it probable that Ms Urquhart would have achieved rapid promotion through the ranks.

Issues

5. The parties agreed about the substantial issues in the action.

6. The first issue is the income that Ms Urquhart would have earned to date and in the future. This involves an assessment of her likely career path and a number of contingencies, including the effect of having children on her career.

7. The second issue is the likely earnings of the plaintiff.

8. The third issue is the approach to calculation of the plaintiff’s pecuniary loss. This has a number of aspects.

9. One aspect is the loss of Ms Urquhart’s financial support, which in a case such as this is sometimes loosely and inaccurately described as the loss of “dependency”. More precisely, it is the loss of the chance that the plaintiff would have derived some material benefit from Ms Urquhart if she had lived. The plaintiff does not need to prove that he was or would have been dependent upon Ms Urquhart. Instead, he seeks to recover the value of the material benefit that he has lost because Ms Urquhart is not alive to supplement his own earnings.

10. A second aspect is the loss of services to which the plaintiff had a reasonable expectation of benefit. Damages are awarded for losses sustained and not for needs created. Compensation is awarded for the loss of domestic services, and the fact that no expenditure is incurred to replace the benefit does not mean that no loss has been sustained.  The Court is required to value the loss and may have regard to the commercial cost of purchasing such services.^[1] 

11. A third aspect is taking account of benefits arising from Ms Urquhart’s death, such as benefits derived from her estate. The general principle is that the assessment of damages in such a claim must take account of “the pecuniary benefits, arising on [the] death, to which the claimant had a reasonable expectation, whether as of right or otherwise.”^[2]  That general principle is subject to statutory provisions that certain sums are not to be taken into account by way of reduction of damages.  Section 38 of the Commonwealth Act, which is applied by the State Act, contains a number of matters which are not to be taken into account by way of reduction of damages, including a sum paid or payable on the death of a passenger under a contract of insurance and a sum paid or payable out of a superannuation fund.  A particular issue arises in this action concerning the treatment of death benefits and superannuation benefits that were paid to the plaintiff, who was also the administrator of Ms Urquhart’s estate.

12. The assessment of the damages to which the plaintiff is entitled requires consideration of a variety of contingencies. These include contingencies affecting:

(a)Ms Urquhart’s expected earnings;

(b)the plaintiff’s expected earnings;

(c)the continuation of the relationship between the plaintiff and Ms Urquhart;

(d)whether a relationship which the plaintiff has commenced in recent months with a new partner will continue, and, if so, the financial benefits and services that the plaintiff may enjoy from that relationship.

The contingencies also include contingencies that affect personal injury claims in general, including the risk of illness, injury, unemployment and other misfortunes, as well as the contingency of good fortune.  As Windeyer J observed in Bresatz v Przibilla^[3] “all ‘contingencies’ are not adverse:  all ‘vicissitudes’ are not harmful.” 

13. As to the contingency that the plaintiff may experience either financial advantage or financial disadvantage as a result of a new relationship, through an apparent oversight the reform effected by s 23A of the Supreme Court Act 1995 (Qld) does not affect the assessment of damages in this proceeding.  That section applies in a proceeding under Division 5 of the Supreme Court Act 1995.  This is not such a proceeding.  Accordingly, the contingency of a financially beneficial marriage or relationship is governed by the principles discussed by the High Court in De Sales v Ingrilli,^[4] and not by s 23A.

14. Finally, there are legal issues concerning the limitation on a carriers’ liability, in particular whether the $500,000 limit on liability contained in s 31 of the Commonwealth Act includes interest and costs.

Evidence about the plaintiff and Ms Urquhart, their relationship and their plans for the future

15. The plaintiff was born in 1974. After completing grade 12, he undertook a six month vocational carpentry course at TAFE. He worked as a tradesman for a short time after completing his apprenticeship.

16. The plaintiff joined the Queensland Police Service Academy in October 1997.  He was sworn in as a first year constable in April 1998 and commenced at the Brisbane City Station.  After being there for six months, he moved to the Indooroopilly station for another six months.  In 2002, he was transferred to Cairns. He was appointed a Senior Constable in 2003 when he moved to the Bamaga Station.  He remained at Bamaga until 7 May 2005, at which time he returned to Brisbane.  In November 2005, he transferred to Edmonton (near Cairns) and in April 2007 he returned to Brisbane to rejoin the Public Safety Response Team.

17. He currently holds the rank of Senior Constable. He intends to apply for promotion to the position of Sergeant. However, he wishes to remain in the Public Safety Response Team. Only a limited number of Sergeant or team leader positions become available each year in the Public Safety Response Team.

18. The plaintiff met Ms Urquhart at the end of 2001 and their relationship commenced at the start of February 2002. At that time, the plaintiff was living at a police house at Hamilton and Ms Urquhart was living at a unit in Clayfield.  Their relationship developed further and the plaintiff began to spend some nights at Ms Urquhart’s residence.  The plaintiff moved into Ms Urquhart’s residence around May 2002.

19. In October 2002, Ms Urquhart, having finished her first year constable program, was transferred to Cairns.  The plaintiff applied for a compassionate transfer on the basis that they were in a de facto relationship and joined Ms Urquhart in Cairns. Both the plaintiff and Ms Urquhart worked at the Cairns Police Station and they leased a residence together.  In March 2003, they were both transferred to Aurukun where they were provided with a house within the police compound.  The plaintiff and Ms Urquhart then transferred to the Bamaga Police Station in August 2003 upon the plaintiff’s successful application to the position of Senior Constable at that station.   The plaintiff owned his own vehicle and a boat.

20. The plaintiff was responsible for the maintenance of the yard, including mowing the lawn, maintaining the gardens, cleaning the car and boat, and washing a dog two or three times per week. He estimated that he spent approximately eight to ten hours undertaking these tasks. Ms Urquhart was responsible for domestic chores, including cleaning inside the unit, washing clothes, ironing, cooking, shopping and organising things. The plaintiff estimated that Ms Urquhart spent about seven hours per week cooking for his benefit. He estimated that she spent about three to four hours, as a minimum, undertaking chores such as cleaning, washing, ironing, vacuuming and so on, for his benefit each week. She spent approximately two to three hours per week shopping at the supermarket or ordering groceries which were to be shipped to them. The plaintiff had anticipated that this division of domestic tasks would continue into the future.

21. The plaintiff’s and Ms Urquhart’s day to day living expenses were shared, including payments for groceries and loan repayments for a vehicle which they had purchased together in Bamaga with a joint loan. The plaintiff was the primary card holder for a Westpac Credit Card and Ms Urquhart had a card attached to his account. Most expenses were paid through this account, and although Ms Urquhart did have a separate account with the Queensland Teachers Credit Union, they regarded their incomes as a combined income and shared their expenses. They also pooled their funds in a savings account which was to pay for their wedding and honeymoon. Their expenses in a remote community did not necessarily reflect what their expenses would have been upon returning to Brisbane.  Their accommodation was provided.  However, the cost for most ordinary consumer items was higher than in Brisbane.

22. The plaintiff described his relationship with Ms Urquhart at the time as “very loving”. In June 2004, he proposed and they planned to marry on 9 September 2005.  At the time of Ms Urquhart’s death, they had planned almost everything and had paid for most of the wedding expenses.  The plaintiff and Ms Urquhart planned to return to Brisbane upon the expiration of their period of service at Bamaga in August 2005. They intended to live on the North side of Brisbane, near Ms Urquhart’s parents, whose proximity would be helpful in raising a family.  The plaintiff’s mother lived on the Sunshine Coast, and was also available to assist them. The plaintiff and Ms Urquhart had discussed having two children, although they planned to travel and enjoy married life for some time before having children.

23. The plaintiff recalled a meeting between (then) Superintendent Hollands, Assistant Commissioner Peter Barron and Ms Urquhart at Bamaga.  He stated that they “quizzed” Sally about what she wanted to do within the Queensland Police Service and told her “she could go wherever she wanted” due to her character and education.  He described Ms Urquhart as “definitely earmarked to go to the commissioned officer level”.

24. The plaintiff was supportive of Ms Urquhart in her career and recognized that she had greater potential for advancement in the police force that he did. He stated that he has never had aspirations of being a commissioned officer. He wished to remain involved in operational duties and continue in his mentoring work with younger officers. He believed he would struggle to obtain a rank higher than senior sergeant due to his lack of tertiary qualifications and his desire to maintain an operational role.

25. By contrast, Ms Urquhart was motivated to be a commissioned officer, and was encouraged by senior officers to pursue advancement to senior ranks.

26. Ms Urquhart was born in 1977 and attended high school to grade 12. She was School Captain and received an OP 4, as well as various awards for sporting and other achievements. She attended Griffith University and received a second class honours law degree and a Bachelor of Science.  After working in a private legal practice for a short time, she decided to pursue a career in the police service.

27. Ms Urquhart intended to gain promotion through the ranks of senior constable, sergeant and senior sergeant and then to commissioned ranks. The plaintiff stated that she was looking at positions within the tactical crime squads with a view to moving through as a detective. Ms Urquhart had discussed with her father her plans to have children with the plaintiff whilst maintaining her career within the Queensland Police Force.

28. The evidence did not descend to detail, if such detail was available, concerning the number of police constables who had Ms Urquhart’s academic qualifications, or similar academic qualifications, so early in their careers. The impression conveyed by Mr Hollands’ evidence is that it is rare for police officers to have those qualifications before joining the police force. The acquisition of legal qualifications is an advantage, as illustrated in Mr Hollands’ own career path. Mr Hollands actively encouraged Ms Urquhart to progress her career. This included moving into the prosecutions section at some stage. A period of service as a police prosecutor would not have attracted the usual operational shift allowance, but Ms Urquhart would have been paid the lower allowance given to police prosecutors. Mr Hollands explained that officers with suitable skills go to police prosecutions because they achieve accelerated promotion and also obtain a good understanding of the law.  This understanding aids future promotion and is important in occupying positions at a management level.  He explained that someone who was astute in terms of their own career management would move into prosecutions for three years, obtain advanced promotion and then move back to obtain additional operational experience.  They then might move back into a legal or policy area.  Someone who was prepared to maintain mobility in terms of career progression was going to “get ahead relatively quickly.”

29. In the light of a foreshadowed objection, Mr Mullins was careful not to elicit arguably impermissible opinion evidence from Mr Hollands. Instead, he obtained evidence from this impressive witness concerning:

• the qualities of Ms Urquhart that Mr Hollands observed and which prompted him to actively encourage her to progress her career in a way that would enable her to get ahead relatively quickly;

• the qualities required of a police officer to gain promotion through the ranks.

30. Ms Urquhart gained the respect and support of the indigenous communities in which she served. She was friendly and outgoing and this enabled her to mix well with the indigenous community. On one particular occasion at Bamaga there were difficult issues to be addressed at a community meeting and Mr Hollands was to make a presentation. Ms Urquhart calmed the whole situation and the police were able to convey the information that they wanted to communicate. Mr Hollands reflects that without Ms Urquhart’s presence that would not have occurred.

31. Ms Urquhart related well to other police who visited the remote communities. She demonstrated what Mr Hollands described as a lot of maturity. She was well-educated and her legal training enabled her to produce affidavits, statements and other documents of “an exceptionally high quality” compared to other constables with her level of service.  She demonstrated her willingness to be mobile and was prepared to take up “hardship postings” that required a greater ability to get along with other people than working in a metropolitan area where police enjoy more support from other police if something goes wrong.

32. Mr Hollands described Ms Urquhart as an “exceptional individual”, whose maturity, hospitality and legal training would enable her to progress through the ranks more quickly than others.

Salaries for Police officers

33. Exhibit 2 shows a pay scale for police officers for the period of 2007 to 2009. The rank of constable has six pay points, or levels to which officers may be promoted, ranging from $46,348 to $56,275 per annum. Constables are required to complete the constable development program, which takes three years. It is possible for officers who have completed the constable development program to have accelerated progression, especially if they are applying for remote positions. Otherwise, officers move up the pay scales as they accumulate points by completing additional programs and courses. Not every officer progresses to the rank of senior constable and progression is subject to positions becoming available. Senior Constables receive salaries which range from $57,876 to $69,421 per annum. From the position of senior constable, an officer could apply to become a sergeant within one to two years upon completion of the management development program. Salaries for sergeants range from $69,744 to $77,913 per annum. The next rank is that of Senior Sergeant, and the pay scale ranges from $81,310 to $86,340 per annum. Inspector is the next rank ($107,926 to $114,464 per annum), then Superintendent ($118,385 to $125,388), then Chief Superintendent ($130,960 to $134,099).

34. There are 11 Assistant Commissioners and two Deputy Commissioners. The Commissioner is the Director General and Chief Executive Officer of the department.

35. Mr Hollands gave evidence of his salary and benefits at the level of Chief Superintendent, which is his usual role. In that role, he receives $5,140 per fortnight (approximately $130,000 per annum), 18 per cent superannuation, and in his present posting is provided with a house. He has use of a vehicle and a mobile phone. His telephone bill is also paid for. Whilst acting in the role of Assistant Commissioner he receives $6,149 per fortnight (approximately $160,000 per annum), plus the additional benefits mentioned in relation to the position of Chief Superintendent. He noted that Assistant Commissioners within metropolitan areas would not be provided with accommodation. Deputy Commissioners would receive about $219,000 per annum as a total package, and the Commissioner’s salary is almost $400,000, with the possibility of a bonus.

36. Police officers working at police stations which have a 24-hour rotating roster receive an operational shift allowance. This allowance is granted on the basis of doing multiple shifts. It may also be given to someone undertaking shift work in a section like intelligence where they undertake some weekend work. The plaintiff has received the operational shift allowance for all of his 12 years of service, apart from when he was stationed at Bamaga, due to that station not operating 24 hours.

37. Officers only lose the operational shift allowance by moving to a non-operational position for 28 days or more. Officers in the rank of inspector or above do not receive the allowance as they are not expected to undertake shift work, such as night shifts. The allowance is 21 per cent of an officer’s base pay, and was 21 per cent in 2005. Officers continue to receive the allowance when they are on holidays. Officers within the prosecutions section do not receive the operational shift allowance but rather receive a different type of allowance which is significantly less than 21 per cent. Officers who do not receive the operational shift allowance may be remunerated by way of penalty rates for working on weekends.

38. Mr Hollands stated that a person with the qualities of integrity, education, life experience and ambition might progress to senior constable after five years. If they decided to go into a specialist area, such as prosecutions, and had a legal qualification, they could become sergeant after six years of service. He suggested that such a person could progress to senior sergeant after three years as a sergeant. They could progress to the level of inspector after three or four years of service at the rank of senior sergeant. In short, a person with the qualities described could gain promotion to the rank of inspector after between 13 and 15 years of service.

Ms Urquhart’s expected earnings

39. Mr Hollands’ evidence and the evidence of other witnesses leads me to conclude that Ms Urquhart had the qualities and the ambition necessary to progress rapidly through the ranks. Consistent with government policies concerning gender equity, Ms Urquhart might have gained appointment to positions over any male applicants who were equal on merit. It is likely that by now she would have reached the rank of sergeant.

40. If she and the plaintiff were able to have children then it is likely that they would have had two children by the time Ms Urquhart was in her mid to late thirties. It is reasonable to assume that Ms Urquhart may have taken leave whilst each infant was very young. Ms Urquhart’s and the plaintiff’s parents would have been available to provide child minding and other support to any children.

41. The period during which Ms Urquhart would probably have been on maternity leave may have delayed her promotion compared to a situation in which she had remained in full time employment and gained additional experience. The evidence from the witnesses, including Ms Urquhart’s father, persuades me that Ms Urquhart would have combined being a mother with her career.

42. There is the possibility that over time Ms Urquhart may have become disillusioned with life in the police force, pursued another more remunerative career or chosen to perform unpaid work as a wife and mother. These and other contingencies exist. However, I find it probable that Ms Urquhart would have remained in the police force. It was her chosen career and she was career-oriented. A career in the police force offered secure employment, the reward of serving her community and a structured career path to the commissioned officer ranks to which Ms Urquhart had the qualities to reasonably aspire. If Ms Urquhart fulfilled her potential it is possible that she would have eventually achieved a rank higher than Chief Superintendent, such as the rank of Assistant Commissioner. She had the potential to achieve such a rank on merit and also with the benefit of government gender equity policies. The evidence is that there is currently a female Assistant Commissioner. With an increasing number of female recruits into the police force it is likely that there will be more female Assistant Commissioners in time. I do not accept the defendant’s submission that the growing number of female officers in the ranks might reduce the impetus to achieve gender equity in higher ranks. The maintenance of a relatively low percentage of female Assistant Commissioners compared with the overall percentage of female officers in all ranks may be hard to publicly justify.

43. In any case, one of the contingencies is that Ms Urquhart would have reached the highest ranks in the police force. It is more probable than not that she would have reached the ranks of being a commissioned officer after a relatively rapid rise through the lower ranks. I reach this conclusion based upon:

(a)Her possession of the personal qualities that Mr Hollands identified as important to progression through the ranks, including integrity, life experience and an ability to communicate well with people;

(b)Her possession of the educational qualifications that Mr Hollands thought was a most important attribute to progression through the ranks;

(c)Her commitment to serving the community in her chosen career as a police officer;

(d)The practical demonstration of that commitment in difficult postings in remote indigenous communities where she displayed personal and professional qualities that earned the respect of superior officers;

(e)Her good health;

(f)Her possession of qualifications and experience that made her a suitable candidate to pursue the career path suggested by Mr Hollands, including a period in the prosecution service when she would gain rapid promotion before resuming operational duties;

(g)The support of the plaintiff, who recognised Ms Urquhart’s potential for career advancement to a level higher than he was likely to achieve and who was supportive of her aspirations;

(h)The support of Ms Urquhart’s family and the plaintiff’s family, including the assistance they were likely to provide to her and the plaintiff in the care of children;

(i)Government policy supportive of gender equity;

(j)The support of senior officers who recognised Ms Urquhart’s qualities and potential for promotion.

44. The defendant’s submissions point to the absence of specific evidence in relation to Ms Urquhart’s performance at the Police Academy or any formal record of her service after graduation.  However, the absence of such evidence does not detract from the evidence of witnesses concerning Ms Urquhart’s qualifications and actual performance.  The defendant’s submissions also point to Mr Hollands’ limited experience of participating in promotion panels for senior ranks, and submit that the selection panels in which he actually participated were of limited relevance.  However, I consider that Mr Hollands’ experience in relation to appointments, his responsibility as an Acting Assistant Commissioner for human resource management issues and his own experience in gaining promotion made him a reliable and informative witness.  His evidence assists in reaching a view about the likely career path of Ms Urquhart.

45. The defendant submits that the most tangible comparison, for the purposes of career progression, might be the movement through the ranks of Mr Hollands. It submits that his qualifications were superior to those of Ms Urquhart in that in addition to legal qualifications he had management qualifications which, it might be expected, would be at a premium in assessment of candidates for the more senior ranks that involve substantial management responsibilities. I generally accept the submission that Mr Hollands’ career progression provides a useful point of comparison. He holds a Masters degree in Business Administration and a Graduate Diploma in Executive Leadership obtained through the Australian Institute of Police Management. There is no reason to suppose that, like Mr Hollands, Ms Urquhart could not have acquired such qualifications in the course of her career. A point of difference between them is that Ms Urquhart graduated in law before joining the police force. Mr Hollands completed his law degree externally whilst a police officer. Mr Hollands considered that joining the police force with a law degree, compared to completing it part time whilst in the police force, would give a person a much greater prospect of acceleration.

46. The determination of Ms Urquhart’s likely rise through the ranks cannot be precise. However, on the basis of my conclusion that she would have had a relatively rapid rise through the ranks, I consider that the table included in the plaintiff’s submissions provides a reasonable representation of her likely career path. Ms Urquhart probably would have reached the rank of Senior Constable in the financial year ended 30 June 2007.  Depending upon a period of service within the Police Prosecution Service and available positions as a Sergeant, she probably would have achieved the rank of Sergeant within the next few years.  By now she would probably be a Sergeant at pay point 3.2 or 3.3, and would have progressed to the rank of Senior Sergeant within the next few years.  After a period of about three years as a Senior Sergeant she probably would have gained promotion to an Inspector.  This probably would have occurred some time after 1 July 2014.  She may have remained an Inspector for between seven and ten years before being promoted to the rank of Superintendent and eventually Chief Superintendent.  There is a distinct possibility that she would have achieved an even higher rank in the final stages of her career.

47. The plaintiff’s calculations apply an uplift of 21 per cent to the pay rates for both the plaintiff and Ms Urquhart to reflect the evidence that almost all police officers receive an operational shift allowance of 21 per cent. However, this does not properly reflect the fact that during some part of her career Ms Urquhart may have been a police prosecutor, undertaken policy work or served in some other position that did not attract the operational shift allowance. However, I accept that for a substantial part of her career, either as a uniformed police officer or as a detective, she would have received an operational shift allowance.

The plaintiff’s expected earnings

48. If Ms Urquhart had lived then the plaintiff probably would have returned to Brisbane and taken up the same or similar duties to those that he now performs.  I accept his evidence concerning his reduced scope for promotion in wishing to perform certain operational duties.  The parties are essentially agreed concerning his future progress through the ranks, as reflected in the tables in their respective submissions.

49. I find that it is likely that the plaintiff will gain promotion to the position of Sergeant in the next few years and eventually be promoted to the rank of Senior Sergeant in accordance with the career path suggested in the parties’ submissions. In performing such duties the plaintiff receives an operational allowance of 21 per cent.

Calculation of pecuniary loss

50. Various approaches to the calculation of pecuniary loss are discussed in the authorities and in Professors Luntz’ work.^[5]  In the case of two-income families in which incomes are pooled, one approach, in the absence of particular circumstances that tell to the contrary, is to assess loss on the basis that the surviving spouse received the benefit of 66 per cent of the joint income if there are no children.^[6]  The two incomes are added together, a dependency figure of 66 per cent is then applied if there are no children and then the survivor’s income is deducted.  In Halvorsen Boats Pty Ltd v Robinson the New South Wales Court of Appeal said that there was much to be said for adopting such a conventional approach in the absence of particular circumstances which tell to the contrary.^[7] 

51. Another approach, guided by actuarial calculations based upon now somewhat dated Australian Bureau of Statistics figures for household expenditure, appears in Table 9.1 of Professor Luntz’ work. The parties in this matter helpfully used this table in their submissions along with calculations based upon the “conventional method” which can be summarised as:

“Weekly dependency = (d + p) x 0.66 – p

where d is the deceased’s weekly wage and p is the plaintiff’s weekly wage.”

Within the parties’ calculations were certain assumptions or contingencies, including those already addressed concerning the likely career paths of Ms Urquhart and the plaintiff. 

The contingency of children being born

52. An issue concerns the approach to the contingency of children being born. Different approaches have been adopted to the impact on the calculation of damages of children being born. Some courts have taken the view that damages should not be assessed upon the hypothesis that, except for the death, the dependent spouse and the deceased would have had children with a consequent increase in the surviving spouse’s expectations of pecuniary benefits (or dependency).^[8]  For example, in Halvorsen Boats the Court, adopting the approach that a court should act on the basis of a certain fact, and on the basis that it was certain at the date of trial that a dependent widow would not have children by the deceased, ruled that compensation was to be determined without any allowance for the prospect of the widow’s reduced earning capacity if she bore children to the deceased.  Learned authors are divided on the correctness of such an approach.  Professor Luntz describes the theory as illogical, but considers that its outcome is to be welcomed as a matter of policy.^[9]  In Malone v Rowan^[10] Russell J questioned why the prospects of having a family and the consequent increased dependency should be treated differently from other contingencies.  In Biddulph v Lenegan^[11] the Court concluded that the prospect of further children should not have been discounted.  Halvorsen Boats was distinguished as dealing with a different situation.  In Biddulph it was acknowledged that, were it not for the deaths of both parents they would, very probably, have had additional children.  In those circumstances the Court concluded that it was obliged to take that probability into account in assessing the extent of the benefits which had been lost by the one child that they did have. 

53. More recently in Campbell v Li-Pina^[12] the Court of Appeal of Western Australia concluded that regard should be had to whether the financial position of the deceased and the surviving spouse would or may have changed in the future.  McLure JA, with whom Steytler P and Buss JA agreed, observed:

“If for example it can be established on the balance of probabilities that the deceased and the appellant would have had children and the appellant would have given up work for a period and become wholly or partially dependent on the deceased, the calculation of the loss must reflect that.”

54. This is not a case in which the contingency is one of the surviving spouse giving up work to have children and becoming wholly or partially dependent on the deceased. Instead, it is a case in which it is likely that at some stage the deceased would have given birth to one or two children, taken maternity leave during which time she may have been wholly or partially dependent on the plaintiff, and thereafter resumed her career. The defendant relies upon this contingency in two respects. The first is to reduce the deceased’s income to nil during two periods of maternity leave, during which time there would have been a reduced income pool available for the support of the plaintiff, Ms Urquhart and their family. The second relates to the period after the resumption by Ms Urquhart of paid employment when she and the plaintiff would have been required to support children from their joint incomes.

55. The defendant submits that the advent of children would not only have impacted upon Ms Urquhart’s career. It submits that it would have operated to “erode the plaintiff’s dependency.” As to the impact on dependency, it submits that the advent of children reduces the dependency of the spouse and that this reality is reflected in Professor Luntz’ Table 9.1. That table produces percentage figures for the dependency of a surviving parent and children, depending upon the number of children. The defendant submits that it is necessary to adjust the plaintiff’s original calculations of dependency to reduce the plaintiff’s forecast dependency, since the plaintiff’s projections ignore the impact of children on dependency.

56. I accept the defendant’s submission that there is no reason in principle to treat the prospect of children having been born as different to any other contingency. This contingency should be taken into account in assessing Ms Urquhart’s expected income by taking into account the possibility of periods of unpaid maternity leave. In that regard the defendant’s adjusted calculations are based upon separate six month periods of maternity leave in the first half of 2008 and the first half of 2010. By reference to various certified agreements and awards the defendant contends that this would have involved unpaid maternity leave.

57. There is a degree of uncertainty as to when the plaintiff and Ms Urquhart would have had children. They intended to have two children after some period of married life together. If they were able to have children then it is uncertain whether the arrival of children would have been delayed for some time during which Ms Urquhart advanced her career and the couple secured their financial position.  The evidence is not so clear as to permit a conclusion to be reached, on the balance of probabilities, that Ms Urquhart would have had children and taken maternity leave when she reached a particular age.  However, I think it likely that she and the plaintiff would have had children when she was in her mid to late thirties.

58. If, as the defendant contends, any maternity leave would have been unpaid maternity leave then the plaintiff’s calculations would need to adjust Ms Urquhart’s income accordingly. There would need to be some corresponding adjustment for family allowance and any taxation benefits that the plaintiff would have derived. If, however, the plaintiff and Ms Urquhart had children after the passage of the recently-enacted Commonwealth legislation governing paid maternity leave^[13] then Ms Urquhart’s income would not be reduced to nil, as the defendant contends it should be.  In any event, I consider it appropriate to take into account the distinct possibility that the arrival of children would have led to Ms Urquhart’s absence from work on maternity leave for a period of about six months after each birth, and the possibility that if such maternity leave had been taken prior to the passage of recent Commonwealth legislation it would have reduced Ms Urquhart’s income, reduced the amount of Ms Urquhart’s and the plaintiff’s pooled income and reduced the extent of the plaintiff’s financial “dependency” on Ms Urquhart during the period of leave.  If Ms Urquhart did not receive paid parental leave, then she would have been largely dependent on the plaintiff’s income during the period of leave.  The absence of such an adverse impact upon the plaintiff’s finances as matters have transpired should be taken into account in the assessment of his loss.

59. Next, and consistently with the principle that the birth of children of the relationship should be regarded as a contingency that should be taken into account in assessing the extent of financial loss that the plaintiff has or will suffer because of the death of Ms Urquhart, I accept the defendant’s submission that account should be had of the financial impact that the advent of children would have had on the plaintiff’s dependency when Ms Urquhart returned to work after maternity leave. Some caution is required in simply adopting Table 9.1 from Professor Luntz’ work. The table presents a percentage of dependency of the surviving parent and children in circumstances in which the child or children are assumed to have their own claims for loss of dependency.  Still, the table reflects the reality that the existence of dependent children reduces the percentage dependency of the surviving parent.  In the case of both single-income and double-income families, the table shows a reduction in the percentage dependency of the surviving spouse if the deceased had dependent children.  At the same time the percentage dependency of the family (the combined percentages of the surviving parent and the dependent children) increases if there are children.^[14]  A similar recognition appears in the conventional dependency figure of 66 per cent if there are no children and 75 per cent if there are.^[15]

60. In this case one is not concerned with the dependency of children of the relationship who are potential claimants. One is concerned with hypothetical, unborn children. The birth of a child and the expenses associated with supporting it would have reduced the amount available from Ms Urquhart’s income and the plaintiff’s income to support certain joint living expenses and to make provision for savings. During the periods after a child was born and both Ms Urquhart and the plaintiff were working, the joint support of a child would have affected in percentage terms the extent of the plaintiff’s dependency on Ms Urquhart’s income, and also affected the extent of Ms Urquhart’s dependency on the plaintiff’s income. Each would have had an increased dependence on the other’s income to fund costs associated with a child, and also would have had to devote some part of their own income for child support. In other words, the birth of a child or children would reduce the amount available from their pooled joint income for some joint and individual expenses and for savings.

61. To the extent that the additional costs associated with a child were financed out of the plaintiff’s income, it would have increased his dependence upon Ms Urquhart’s income. Contrary to the position adopted in Halvorsen Boats but consistent with principle and more recent authority, any allocation of part of the plaintiff’s income to assist in the support of a child would have increased his dependence on Ms Urquhart’s income.  To like effect, the costs of supporting a child that were met out of Ms Urquhart’s income would have reduced the amount that was available from it to support herself, the plaintiff and to save.  In general terms, the birth of children would have reduced the percentage of the plaintiff’s income that was available for Ms Urquhart’s personal financial support and their joint  expenses and also reduced the percentage of Ms Urquhart’s income that was available to support the plaintiff and their joint expenses.  The arrival of children would have increased the plaintiff’s dependence on Ms Urquhart’s income, and her dependence on his income for the purpose of supporting their children.

62. I have regard to Luntz’ Table 9.1 as indicative of the impact of additional children on the percentage dependency of a surviving parent. The table does not purport to address the complex problem associated with determining an appropriate adjustment for the contingency of unborn children.

63. The plaintiff’s submissions noted and relied upon the line of authority in which some courts have ignored the prospective financial impact of unborn children, based on the theory that the deceased’s passing without children is a certain fact. Alternatively the plaintiff submitted in his original submissions that if these authorities are not followed then the prospect that the income of the deceased may have been reduced should be taken into account as a general contingency. He submits that he and Ms Urquhart were likely to have had children but the financial impact upon Ms Urquhart’s career (and the related dependency) was likely to be small in the overall scheme of her working life. I do not accept that the financial impact of children would necessarily have been small in the overall scheme of Ms Urquhart’s working life.  However, I accept the submission that the financial impact of unborn children should be taken into account as one of many contingencies.

64. In response to questions posed by me^[16] the parties made further submissions concerning the contingency of children being born, and noted some errors in calculations in their original submissions.  In the light of those submissions I turn to consider how account should be taken of the contingency that the plaintiff and Ms Urquhart would have had children.

65. The first respect in which it should be taken into account is for any periods of unpaid parental leave that would have been taken by Ms Urquhart. This will affect the assessment of past economic loss. One approach is to deduct what otherwise would have been the amount of the loss calculated during a recent six month period. On the plaintiff’s calculations this amounts to a reduction of about $9,000 assuming six months’ leave was taken in the year ended 30 June 2010. To this figure should be added an amount to reflect the benefit the plaintiff now has of Ms Urquhart not being financially dependent on him during this period of unpaid parental leave.

66. A similar adjustment would be required in respect of the calculation of future loss if a child had been born and unpaid parental leave had been taken by Ms Urquhart prior to the introduction of paid parental leave on 1 January 2011. However a deduction on account of periods of unpaid parental leave should recognise that this is a contingency, not a certainty.

67. I shall take account of the contingency of a child being born and Ms Urquhart taking unpaid parental leave before 1 January 2011 by increasing the percentage discount upon past loss that would have been appropriate in the absence of that contingency. I have regard to the parties’ calculations of the impact of a child being born, and proceed on the basis that one child may have been born before the introduction of paid parental leave, and any second child would have been born after its introduction.

68. The next and more significant respect in which the birth of children affects the plaintiff’s dependency is during the years when children would have been dependent. The adoption of the conventional dependency figure of 66 per cent during these years cannot be supported. Neither party submits that Luntz’ Table 9.1 can be directly applied. The defendant submits however that it is a useful tool in arriving at a figure for the plaintiff’s separate dependency upon Ms Urquhart’s income. If, for example, the plaintiff’s and Ms Urquhart’s incomes had been the same, and they had two children, the plaintiff’s dependency would have been 20.8 per cent and each child’s dependency would have been 15.6 per cent, with a total dependency on Ms Urquhart’s income of 52 per cent according to this table.  The figure of 20.8 per cent represents 40 percent of the total dependency of 52 per cent.  This figure of 40 per cent may be applied to the conventional calculation of family dependency, as follows:

[[.75 x (d + p)] – p] x .40

69. If, as I find, by now Ms Urquhart’s income would have exceeded that of the plaintiff’s a larger percentage than 40 per cent would be appropriate. It might be calculated by a process of linear interpolation of the kind adopted in Table 9.1 where the income of spouses are not equal or by a similar process of adjustment of the kind undertaken in the plaintiff’s calculations.^[17]

70. Calculations of the kind undertaken by the parties in their original submissions, and their supplementary submissions are at best a guide. One limitation on using percentages derived form Luntz’ Table 9.1 is that it is based upon the assumption that children were born at the time of trial. A calculation of the financial impact on dependency of children that were not born to the plaintiff and Ms Urquhart, and who will not now be born, is a calculation that assumes a hypothetical fact: that they would have had children by now or would have had them at some time in the future. Any assessment must take account of the contingency of infertility, the contingency of only one child being born, as well as the possibility that, contrary to their plans, they might have had more than two children. At some stage of the assessment of loss account must be taken of the contingency of a new relationship (to be discussed below) and that the plaintiff and a new partner may have three or more children, this being to the plaintiff’s financial disadvantage compared to his financial situation if he and Ms Urquhart had two children.

71. Leaving such complexities aside, and assuming that the plaintiff and Ms Urquhart probably would have had two children by about this time or in the next few years, I consider that the percentage to be applied to the 75 per cent conventional calculation should be higher than 40 per cent, namely 45 per cent.

72. An alternative is to simply adjust the conventional 66 per cent figure to take account of the contingency of the birth of children and its financial impact on the plaintiff’s loss of dependency. In the absence of actuarial evidence, a figure of 60 per cent seems reasonable.

73. For ease of calculation the period of assumed dependency of children should be a period of 21 years from 1 July 2010: 21 years being the likely period that each child would have relied upon the plaintiff and Ms Urquhart for financial support.

The contingency of a new relationship

74. Another contingency in contention in the proceedings is the formation by the plaintiff of a new relationship which may be to his financial advantage or disadvantage. This issue is governed by the general law as discussed in De Sales v Ingrilli.^[18]  Both parties agree that s 23A of the Supreme Court Act 1995 does not apply to the present proceeding.  The opening words of s 23A make clear that the section only applies to a proceeding under Part 4, Division 5 of the Supreme Court Act 1995.  The claim in this matter is not such a proceeding.  The claim in this proceeding is a statutory cause of action created by the State Act, not the cause of action created by s 17 of the Supreme Court Act 1995.  Accordingly, as a matter of statutory construction, the provisions of Part 4, Division 5 of the Supreme Court Act 1995 governing the assessment of damages, including s 23A, do not apply to the present proceeding.

75. Section 23A of the Supreme Court Act 1995 was enacted as a result of the report of the Queensland Law Reform Commission ‘Damages in an Action for Wrongful Death’.^[19]  By apparent oversight the reforms effected by the introduction of ss 23A and 23B do not apply to the assessment of damages under the cause of action created by the Civil Aviation (Carriers’ Liability) Act 1964 (Qld).  Whether those reforms should apply to a statutory cause of action of the kind claimed in this proceeding is a matter deserving of the attention of the legislature.  The policies that persuaded the legislature to amend the Supreme Court Act 1995 in respect of what is commonly known as “a wrongful death action” or a “Lord Campbell’s Act action” brought pursuant to s 17 of the Supreme Court Act 1995 seem equally applicable to the assessment of damages in respect of the death of a passenger that gives rise to a claim under the State Act.  However, these are matters for the legislature.  I accept the parties’ submissions that, as a matter of construction, s 23A of the Supreme Court Act 1995 does not apply to the present proceeding.

76. In De Sales v Ingrilli a majority of the High Court held that, ordinarily, no separate allowance should be made for the possibility, even probability, that a new relationship will be formed and proved to be to the financial advantage of the plaintiff.  A distinction, however, was drawn between making a separate allowance for the possibility or even probability that a future relationship might bring financial advantage and a case in which the surviving spouse had, at the time of trial, established a relationship with an identified person.  In such a case, account may be taken of evidence of the probable financial consequences of that relationship.  However, Gaudron, Gummow and Hayne JJ, with whom Kirby J agreed, stated:

“In each case, however, it would be wrong to assume that the financial consequences revealed in evidence will inevitably continue.”^[20]

77. In this matter the defendant submits that there should be “a separate and substantial discount or deduction for a new relationship” and that the appropriate course is to take into account the evidence in relation to the income earned by Ms Hay, with whom the plaintiff has recently formed a relationship. The defendant submits that the appropriate course is to credit her net income against that of Ms Urquhart. The plaintiff submits that such a course is not justified by the principles in De Sales and that the evidence concerning the plaintiff’s relationship with Ms Hay should be taken into account by a modest alteration of the normal discount for contingencies.  The parties’ submissions make it necessary to address the principles discussed in De Sales and the relevant evidence.

78. In De Sales a majority of the High Court ruled that, ordinarily, no deduction should be made on account of the contingency that a surviving partner will remarry, whether as a separate deduction, or as an item added to the amount otherwise judged to be an appropriate deduction for the vicissitudes of life.^[21]  The judgment of Gaudron, Gummow and Hayne JJ questioned why the possibility of remarriage, or the formation of some other continuing relationship, should be considered separately from all other contingencies that may be to the advantage or disadvantage of surviving relatives.  Their Honours observed that to consider it separately assumes that it is a contingency whose likelihood of occurrence can be separately assessed with reasonable accuracy, and that the financial consequences of its occurrence will, more probably than not, tend in one direction (financial advantage) rather than the other.^[22]  Such assumptions may be flawed, and their Honours observed:

“Seldom, if ever, will a court be able to make any useful prediction about whether, or when, one human being will form a close emotional attachment with another.”^[23]

Their Honours continued:

“Even if these difficulties of predicting that a surviving spouse will form some new continuing relationship were to be surmounted, the financial consequences of its occurrence are even less predictable.  Who is to say that the new relationship will endure, and that, if it endures, it will provide financial advantage to the person who is now the surviving spouse?  And if it is a financially beneficial relationship at its outset, who is to say what events will intervene thereafter?  Will the new spouse or partner suffer some catastrophe and the person who is now the surviving spouse then have to care and provide for the new partner, the children of the first union, any children brought by the new partner to the new union, and any children born of the new union?  Who can say?”^[24]

Their Honours regarded the point about the financial consequences of a new relationship as being of critical importance.  They observed that any new union was exposed to precisely the same kinds of hazard and danger as was the earlier union and it may end in death, separation or divorce.  The financial advantages and disadvantages to one partner change throughout the continuance of the union as the careers and ambitions of the partners change both with and against their will.^[25]  Their Honours stated that to assume that “the new union would be destined to survive and prosper, would be to shut one’s eyes to reality”.^[26]

79. The joint judgment reached the following conclusions:

“76.It is, therefore, wrong to treat the prospect of remarriage or the prospect of forming some new continuing relationship as a separate item for which some identified discount must be made from whatever calculation is made of the present value of future benefits that would have flowed from the deceased to the relatives.  Even if the prospects that a surviving spouse would remarry or enter a new continuing relationship could be assessed (and there will be few cases where that would be possible), predicting when that would occur is impossible, and predicting some likely outer limit of time by which it would probably have occurred is only slightly less difficult.  But most importantly, it cannot be assumed that any new union will be, or will remain, of financial advantage to any of those for whose benefit the action is brought.  That being so, some financially advantageous marriage or relationship must be treated as only one of many possible paths that the future may hold.  It is wrong to single it out for special and separate allowance.  That others in the past have had damages reduced on this account is not reason enough to continue the error.

“77.Nor can the prospect of remarrying or forming a new relationship properly be seen as a matter which, under the general heading of “the vicissitudes of life”, enlarges the discount which otherwise must be made from the present value of the benefits which the deceased was providing at death.  The assessment of that discount is not easy.  It must reflect not only the fact that the future may have been better than the past but also the fact that it may not.  It is wrong to fasten upon one of the myriad possible paths that life may take and say that, on account of that possibility, it is right to enlarge the discount that must be made.  The discount can be assessed only as a single sum which reflects all of the possibilities.”.^[27]  (emphasis added)

80. The position might, however, be otherwise in a case in which there is evidence at trial that a new relationship has been formed and evidence reveals whether the relationship brings with it financial advantage or disadvantage. Gaudron, Gummow and Hayne JJ stated in respect of such a new relationship:

“If the relationship is reflected in marriage, or if there is relevant legislation creating rights between de facto partners, the property rights of the partners will no doubt loom large in that assessment.  Likewise, if there is evidence that a surviving spouse (or de facto spouse) intends, at the time of trial, to establish such a relationship with an identified person, account may be taken of evidence of the probable financial consequences of that relationship.  In each case, however, it would be wrong to assume that the financial consequences revealed in evidence will inevitably continue”.^[28]

Such cases apart, ordinarily, no separate allowance should be made for the possibility, even probability that a new relationship will be formed.^[29]  Kirby J agreed with the joint reasons that, in a wrongful death case, ordinarily, no deduction should be made on account that a surviving spouse or domestic partner will remarry or form a new domestic relationship of economic significance.^[30]

81. The defendant relies upon the separate judgment of Gleeson CJ in support of a submission that where there is some evidence to take a matter from the realm of speculation, a specific adjustment is more appropriate. However, the paragraph cited from the judgment of Gleeson CJ concerning the circumstances in which it may be appropriate to apply “a larger and separate discount”, related to the specific contingency of premature death in which it may be clear on the evidence that a particular person has a high chance of early death because of an existing illness.^[31]  Of greater relevance for present purposes are the specific observations of Gleeson CJ concerning cases in which there are “special or unusual circumstances which make it possible to predict, with some greater degree of certainty, the likelihood of a financially beneficial remarriage.”  His Honour stated:

“32.Subject to the procedural difficulty referred to below, the possibility of a plaintiff remarrying to pecuniary advantage should ordinarily be treated as one of the “vicissitudes of life”.  Allowance is to be made for the contingency of a financially beneficial remarriage, in the same way as allowance is made for the contingency of premature death, injury, unemployment or financial ruin.  It is a chance which usually cannot be predicted with any degree of certainty in a particular case, but which, in the population as a whole, is not a chance that can be disregarded as insignificant

“33.However, there may be some cases in which there are special or unusual circumstances which make it possible to predict, with some greater degree of certainty, the likelihood of a financially beneficial remarriage.  In some cases, a plaintiff may be able to show unusual circumstances which suggest that there is almost no chance of remarriage.  Or, it may be arguable that actual remarriage, to a person who offers no financial benefit, effectively precludes the chance of a financially beneficial remarriage.  In other cases, a defendant may be able to show special circumstances which suggest that the chances of the plaintiff’s loss being reduced by a financially beneficial remarriage are notably higher.  Such circumstances include where a person has actually remarried, to his or her pecuniary advantage, before the trial.  In these circumstances, there may be concrete evidence which suggests that part or all of the plaintiff’s loss will be replaced by benefits received from their new spouse.  Similarly, there may be special circumstances where a person is engaged to be married, or living in a de facto relationship, and that relationship is or will be financially beneficial.  In such circumstances, the evidence may be less strong than in the case of actual remarriage, but may still be sufficiently concrete to allow a special discount to be made.”^[32]

82. Gleeson CJ also observed:

“36.The treatment of the chance of receiving support from remarriage as a factor of modest significance, unless there are special or unusual circumstances which indicate an unusually low or high chance of remarriage, is consistent with the approach taken by the courts in relation to divorce.  A court may treat the chance that a plaintiff might have become separated or divorced from the deceased as one of the general contingencies covered by the discount for the “vicissitudes of life”.  Despite the fact that divorce is now a common occurrence in our society, it is difficult to predict with accuracy in any particular case.  Only where there is concrete evidence of marital difficulty or estrangement will there be an assessment of the specific likelihood of divorce in a particular case.

“37.In the ordinary case, the contingency of a financially beneficial remarriage should be treated as part of the “vicissitudes of life”.^[33]

In separate judgments McHugh and Callinan JJ concluded that there should be a discount for the possibility of future formation of a financially beneficial relationship.^[34]

83. The defendant submits that in this case the evidence of the recent formation of a relationship between the plaintiff and Ms Beth Hay and of a past relationship with a Ms Jenns are relevant with respect to a discounting or deduction in relation to past loss of services and that the relationship with Ms Hay is also relevant as a discounting or deduction factor with respect to assessment of damages in respect of future services. The defendant further submits that it is appropriate for there to be a separate and substantial discount or deduction on account of the new relationship with Ms Hay by bringing into account evidence in relation to her net income. The defendant’s submission in this regard seeks to rely upon the judgment of the Court of Appeal of Western Australia in Campbell v Li-Pina^[35] in which De Sales was applied.  However, the relevant passage in Campbell states as follows:

“A separate and substantial discount for remarriage or relationship is only warranted where there is evidence that a new relationship has been formed or is proposed and that it will bring financial benefit to the claimant:  De Sales.  Otherwise, a general discount for contingencies is the appropriate course.”^[36]

Neither De Sales nor Campbell supports the proposition that it is appropriate to make a separate and substantial discount simply where there is evidence of a new relationship.  Whether it is appropriate to make a separate allowance, and the extent of any allowance, depends upon evidence that reveals whether the new relationship brings with it financial advantage or disadvantage.  Further, as Gaudron, Gummow and Hayne JJ stated in De Sales, it would be wrong to assume that the financial consequences revealed in evidence will inevitably continue.

84. I turn to consider the evidence concerning the plaintiff’s previous relationship with Ms Jenns and his recently-formed relationship with Ms Hay.

85. The plaintiff met Ms Jenns in May 2007. At the time he was residing with a friend and was paying that friend rent. He moved in with Ms Jenns in February 2008 and resided with her until November 2008.^[37]  Ms Jenns owned the home in which she and the plaintiff resided.  The plaintiff did not pay rent but paid “a lot of the bills, rates, insurance, electricity”, paid a few other large bills and also contributed “a lot towards an overseas holiday”.  The relationship with Ms Jenns did not endure.  During it the plaintiff and Ms Jenns maintained separate bank accounts.

86. Whilst it is appropriate to take account of the relatively brief relationship between the plaintiff and Ms Jenns, I do not consider that the relationship warrants any separate discounting or deduction in relation to past financial dependency. The plaintiff had the benefit of accommodation at Ms Jenns’ home for several months but he made a financial contribution towards expenses associated with that accommodation and other expenses. The provision of some domestic services by Ms Jenns during the period of their relationship should also be taken into account in assessing damages for past loss of services.

87. The plaintiff formed a relationship with Ms Hay in November 2009. The relationship progressed and Ms Hay moved into his home in March 2010. He describes her as his partner and she describes him as her partner. Ms Hay has moved her possessions into the plaintiff’s home. The plaintiff’s home is regarded as her home. When asked at the trial about how he perceived the relationship, the plaintiff stated:

“It’s going very well.  I suppose the answer if it’s going to be long-term is probably in the same book as who’s going to win the 2010 Melbourne Cup, but I don’t know where it’s going to go in the future. I wouldn’t have – wouldn’t be in the situation that I’m in if I didn’t think it was going to go anywhere, but I – time will tell I suppose. At the moment, I’m very happy, we get on very well ...”

88. Presently, the plaintiff and Ms Hay do not share finances. They own no shared property. The plaintiff performs the majority of household tasks. They maintain separate credit cards and are not responsible for each other’s debts. Ms Hay works as the State Co-ordinator for the Indoor Netball Federation of Queensland and earns approximately $45,000 gross per annum in that employment.

89. It is unnecessary to determine whether the plaintiff’s new relationship with Ms Hay constitutes a de facto relationship.^[38]  For the purpose of applying the principles discussed by the majority in De Sales it constitutes a “new relationship”.  The evidence concerning the duration of the relationship and the separation of the parties’ finances does not permit a conclusion to be drawn as to whether the new relationship presently “brings with it financial advantage or disadvantage” to the plaintiff.^[39]  Their relationship is not of a duration that would give rise to rights under relevant legislation adjusting property interests between de facto partners.  This is not a case in which the evidence is such as to make any confident assessment of “the probable financial consequences” of the relationship.  Even if it was possible to make any informed prediction of those consequences it would be wrong to assume that the relationship and those financial consequences will continue for a lengthy period. 

90. I do not accept the defendant’s submission that it is appropriate to take account of the evidence in relation to the plaintiff’s new relationship with Ms Hay by crediting her net income against that of Ms Urquhart. The defendant’s submission in this regard is not supported by the majority judgment in De Sales.  Nor do I consider that this is a case in which it is appropriate to make a separate and substantial discount on account of the new relationship.  As stated in Campbell v Li-Pina^[40] in reliance upon De Sales, such a course is only warranted where there is evidence that a new relationship has been formed or is proposed and that it will bring financial benefit to the claimant.  Despite the mutual commitment between the plaintiff and Ms Hay, their status as each other’s “partner” and their hopes for a long-term relationship, their relationship is in its infancy.  If it continues and progresses to a stage in which the parties pool their incomes, acquire property together and conduct their financial affairs in a similar fashion to the manner in which the plaintiff and Ms Urquhart financially supported each other, then the plaintiff may derive a significant financial benefit in due course.  It is also possible, depending upon the course of the relationship and future events, that the relationship may be to the plaintiff’s financial disadvantage.  Like any relationship, it may end in separation.  If it continues Ms Hay and any children of the relationship may be entirely or heavily dependent on the plaintiff’s income for their financial support. 

91. Ms Hay was not called as a witness, despite being in Brisbane at the time of the trial, and there was no attempt by the plaintiff to explain her absence.  I accept the defendant’s submission, which is not contested by the plaintiff, that I should infer that Ms Hay’s evidence would not have assisted the plaintiff’s case.^[41]  The absence of evidence from Ms Hay concerning her background, qualifications, present employment and plans for the future does not permit informed predictions to be made about these matters, other than in reliance upon the plaintiff’s evidence concerning their relationship and uncontested documentary evidence concerning Ms Hay’s employment.  Whilst I should infer that Ms Hay’s evidence would not have further assisted the plaintiff’s case, Ms Hay’s absence does not lead me to reject the plaintiff’s evidence, and the defendant’s submissions did not invite me to do so.  I found the plaintiff to be a reliable and honest witness.  His evidence, which I have earlier quoted concerning the present and future state of his relationship with Ms Hay, was given frankly.  To his credit, he did not attempt to suggest that his relationship with Ms Hay was likely to end as his relationship with Ms Jenns had ended after several months.  I accept that he has a commitment to making the relationship work, but cannot say whether the relationship is going to last in the long-term.  The defendant did not cross-examine the plaintiff concerning Ms Hay’s employment, qualifications and career plans.  However, I accept that the defendant has discharged what may be described as an evidential onus^[42] in raising an issue concerning whether the plaintiff is likely to receive financial support in the future from Ms Hay.

92. There are uncertainties concerning the future duration of the plaintiff’s relationship with Ms Hay and at what point they may combine their financial resources in a mutually-supportive relationship and, if so, the extent of any financial advantage which the plaintiff will then enjoy. In any event, Ms Hay’s present gross income is substantially less than Ms Urquhart’s income would have been at present. Whilst the plaintiff’s relationship with Ms Urquhart was subject to the usual vicissitudes of life and the risk that it would end in separation or divorce, their relationship had endured for a substantial period including hardship postings in Far North Queensland, they had made a mutual commitment to a shared life and planned to marry in a few months. By contrast, the plaintiff’s relationship with Ms Hay is at an early stage.

93. In the absence of evidence that the plaintiff’s new relationship with Ms Hay presently brings with it financial advantage or will bring to him financial advantage in the long-term, I do not consider that this is an appropriate case for a separate, let alone substantial, discount or deduction on account of the plaintiff’s new relationship with Ms Hay. I am not in a position to reach any conclusion based upon “evidence of the probable financial consequences” of the relationship.^[43]  The relationship may prove to be of significant financial benefit to the plaintiff.  Even if this proves to be the case such financial benefit may not last long into the future.  If the relationship proves to be a long-term relationship it may prove to be to the plaintiff’s financial disadvantage if, for example, Ms Hay ceases employment and relies upon the plaintiff to support her and any children of the relationship.  Given the present duration of the relationship, the absence of financial arrangements between the parties to it and uncertainty concerning its long-term future, it is inappropriate to make a separate discount or deduction for what the defendant contends will be advantageous financial consequences to the plaintiff arising out of that relationship.  Instead, I consider that account should be taken of the contingency of financial advantage to the plaintiff by increasing slightly the discount for contingencies that would have applied in the absence of evidence concerning the formation of a new relationship with Ms Hay.  The increase in the discount for contingencies should be moderate. 

94. If I had adopted the defendant’s submission that there should be a separate discount or deduction on account of the new relationship then any separate discount or deduction would have been moderate because, to adopt the words of Gleeson CJ in De Sales, this is not a case in which there is “concrete evidence which suggests that part or all of the plaintiff’s loss will be replaced by benefits received from their new spouse.”^[44]  The evidence concerning the new relationship and its likely financial consequences for the plaintiff is not “sufficiently concrete to allow a special discount to be made.”^[45]

Discount for contingencies:  conclusions

95. The projected incomes of Ms Urquhart and the plaintiff, and the consequential calculation of the financial “dependency” of the plaintiff upon Ms Urquhart should be discounted for a variety of contingencies. As previously outlined, the defendant’s submissions make adjustments to the plaintiff’s calculations for the impact of children, and the defendant also submits that there should be a separate and substantial discount on account of the new relationship with Ms Hay. For the reasons that I have given, I decline to adopt this approach. However, I consider that account should be taken of the financial impact of the advent of children upon the extent of the dependency of Ms Urquhart and the dependency of the plaintiff upon each other’s income. I also consider that account should be taken of the possible financial advantage or disadvantage to the plaintiff of his new relationship with Ms Hay.  This contingency should be reflected by way of an increase in the percentage discount for contingencies that would have been appropriate had the issue of a new relationship not arisen for consideration. 

96. I should not assume that the relationship with Ms Hay will continue indefinitely. But if it continues for a substantial period it is, on balance, likely to be to the overall financial advantage of the plaintiff, rather than to his disadvantage. Any financial advantage will be in the future, and if the relationship continues for a substantial time, it might include periods when Ms Hay is not in paid employment for a variety of reasons.

97. The new relationship with Ms Hay has only been in existence for a period of months and has not been shown to the plaintiff’s financial advantage. There should be an increase in the percentage discount for contingencies in respect of past financial dependence because the financial impact of children would only have been in recent years, if at all. The financial consequences of children being born and of the new relationship with Ms Hay should be taken into account in respect of loss of future financial dependency. In arriving at an appropriate assessment of damages in respect of both past loss of financial dependency and future loss of financial dependency I have had regard to the calculations produced by the parties.

98. De Sales discussed what were said to be standard discounts for vicissitudes in cases in Western Australia and other jurisdictions.  I note in passing that subsequently the “discount rate” in Western Australia has increased and that the Court of Appeal in Western Australia has observed that, except in special circumstances, a discount of more than 15 per cent is unreasonable.^[46]  I have had regard to the discounts for contingencies applied by judges of this Court in the wrongful death cases cited in the parties’ submissions, and the circumstances in which they were applied.  The plaintiff submits that the standard discount in Queensland for vicissitudes or contingencies in a claim for economic loss as a consequence of personal injury is 15 per cent.  This is on the basis that the injured plaintiff may not work into the future for reasons that include illness, unemployment, care of a child or early retirement.  Naturally, each case depends upon its own circumstances including the age of the plaintiff and the age of the deceased, their health, their employment history and prospects, the security of their employment and a wide variety of other circumstances.  As Gleeson CJ explained in De Sales, calculating damages for the loss of a reasonable expectation of pecuniary benefit usually involves calculating a primary sum and then making such further adjustments or allowances as are necessary to produce a result that gives a true reflex of the loss.  The nature of such adjustment and allowances will be influenced by the manner in which the primary sum is calculated.  Each element involves speculative judgments, which cannot be made with accuracy.  The primary sum awarded is the present value of a claimant’s total expected benefit.  The calculation of the primary sum might itself be done by a method that involves allowing for contingencies.  As Gleeson CJ explained:

“The court may then be required to allow for further contingencies that may affect the loss of benefit sustained by the claimant.  Courts take account of such contingencies in two ways.  Certain contingencies may be provided for by way of a general allowance for the “vicissitudes of life”.  Such contingencies may be relatively unlikely to occur, or their occurrence may be impossible to predict with any accuracy.  Other contingencies may be more likely to occur, and more susceptible to specific calculation in the circumstances of a particular case.  In these circumstances, if the tribunal assessing damages is a judge sitting without a jury, it may be appropriate to apply a special discount for the specific contingency in question.  For example, a general discount is sometimes applied to allow for contingencies such as the chance of premature death, injury, sickness or unemployment.  The chance that a person will die prematurely is generally low and is impossible to predict with any accuracy in most cases.  However, in some cases it may be clear on the evidence that a particular person has a higher chance of early death, because of an existing illness.  In these circumstances, it may be appropriate to apply a larger and separate discount for the specific contingency of premature death.”^[47]

99. In this case, the primary sum before allowing for further contingencies is based upon the probability of Ms Urquhart and the plaintiff pursuing their intended career paths and earning incomes over lengthy careers in the police force. The findings that I have made in respect of these matters are generally reflected in the table that appears in the plaintiff’s original written submissions. However, that table did not take account of the contingency of having children and the impact of children on the plaintiff’s financial dependency on Ms Urquhart’s income, or any period of unpaid maternity leave. It also did not bring into account any financial consequence of the plaintiff’s new relationship with Ms Hay.

100. In the case of loss of past financial dependency, I consider that a discount for contingencies of 15 per cent is appropriate. In the case of loss of future financial dependency, I consider that a discount for contingencies of 20 per cent is appropriate after arriving at a figure that takes account of the financial consequences of the birth of children.

The calculation of past loss of financial “dependency”

101. I adopt for convenience the term “dependency”, which is also used in the parties’ submissions. I have had regard to the plaintiff’s calculations in his submissions and to the adjusted and rival calculations appearing in the defendant’s submissions. In most Lord Campbell Act actions an accurate arithmetical approach is impossible, and this case is no exception. Tables of the kind produced by the parties are a useful guide. The plaintiff’s tables more closely reflects my findings concerning Ms Urquhart’s expected career path and earnings. I note that there are some differences in the pay rates adopted by the parties. The plaintiff’s table adopts financial years whereas the defendant’s table adopts pay periods commencing on 1 September 2005, which reflects the likely date of promotions.  The plaintiff’s table is based upon group certificates, rather than tax assessment notices which take account of allowable deductions unrelated to income from personal exertion.

102. The substantial differences between the parties’ respective tables arises because of the absence of specific recognition in the plaintiff’s tables of unpaid maternity leave and the adoption of a uniform 66 per cent dependency figure in the plaintiff’s original table for calculation by the “conventional method”, whereas the defendant’s table adopts different percentages depending upon periods of unpaid maternity leave when Ms Urquhart would have been dependent upon the plaintiff, and also contains adjusted dependency figures depending upon whether it is assumed that one or two children would have been dependent. The plaintiff’s calculations overstate the level of financial dependency by applying an uplift of 21 per cent to the pay rates for both the plaintiff and the deceased to reflect the evidence that almost all operational police officers receive an operational shift allowance of 21 per cent. However, there would have been periods during Ms Urquhart’s career when she would not have received a 21 per cent operational shift allowance, and would have received a lesser allowance, such as an allowance when she was a police prosecutor, or no allowance during periods when she may have worked standard hours in a management or policy area that did not attract a shift allowance.

103. I have also had regard to the evidence that was given by the plaintiff as to income and expenditure in the period leading up to Ms Urquhart’s death. For the reasons that appear in the plaintiff’s submissions this yields a dependency of $295 per week. However, this level of dependency does not reflect the likely level of dependency when the plaintiff and the deceased returned to Brisbane.  Whilst at Bamaga they had the benefit of employer-provided accommodation.  On the other hand, their ordinary living expenses for groceries, petrol and other items exceeded the cost of these items in Brisbane.  They received a remote area allowance.  Whilst the evidence concerning income and expenditure at Bamaga is of limited assistance it provides some additional evidence of the extent of the plaintiff’s financial “dependency” upon Ms Urquhart’s income.

104. A comparison between the plaintiff’s table and the defendant’s table in their original submissions is instructive. For the first year or so there is no significant difference between the calculation of dependency. There are some differences in the calculation of net weekly income. However, one might compare the plaintiff’s figure of $234.47 per week in the financial year ended 30 June 2006 with the defendant’s figure of $237.59 per week for the period ending 30 June 2006. By 30 June 2010, however, there is a marked difference in the calculated dependency.  The plaintiff’s calculation based on Luntz’ Table 9.1, is $301.78.  The defendant’s calculation for the period ended 30 June 2010 is affected by an assumption that this would be a period of unpaid maternity leave.  However, the defendant’s figures for recent years are markedly less than those reached in the plaintiff’s calculations.  A number of factors produce these differences.  The plaintiff’s calculations assume more rapid promotion for Ms Urquhart than the defendant’s calculations.  The defendant’s calculation assumes that Ms Urquhart would have joined the prosecution service or some other non-operational role in late 2007 where she would not have been entitled to a shift operation allowance.  More importantly, the defendant’s calculations in recent years adopt a reduced percentage for dependency on the basis that there would have been one or two children, and that there would have been periods of maternity leave. 

105. The plaintiff’s calculations arrive at a figure of $75,148.56. For the reasons that I have given, this figure overstates Ms Urquhart’s expected earnings in some respects and requires adjustment before applying the 15 per cent discount that I have adopted for a variety of contingencies. However, the defendant’s calculations substantially understate the extent of loss in the light of my findings concerning Ms Urquhart’s career path and probable earnings. Having derived assistance from the parties’ respective calculations, I consider that the plaintiff’s calculations are more indicative of the plaintiff’s loss than the defendant’s calculations.

106. As a rough guide to the past loss of dependency, and leaving aside possible periods of unpaid maternity leave and the financial impact of the arrival of any children in recent years, which I propose to deal with as part of a single discount for contingencies, I conclude that a reasonable figure for the past loss of dependency is one that averages $250 per week over the period of 5.25 years to 30 June 2010. A figure of $250 per week or $13,000 per annum over 5.25 years equates to $68,250. Applying a discount of 15 per cent to this figure produces an amount of slightly more than $58,000. I adopt the figure of $58,000 in respect of past loss of financial support or “dependency”.

Interest

107. The plaintiff received a lump sum payment of $153,000 from WorkCover in respect of Ms Urquhart’s death, which will be refunded by way of a charge on the judgment sum.^[48]  The receipt by him of lump sum compensation of $153,000 in September 2005 leads me to conclude that it is inappropriate to exercise my discretion to award interest on the sum for past loss of financial dependency.  The absence of an award for interest makes it unnecessary for me to consider the divergence of judicial opinion as to whether the limitation on liability contained in s 31 of the Commonwealth Act includes interest.  I note that the plaintiff accepts that the decision in SS Pharmaceutical Co Ltd v Qantas Airways Ltd^[49] is the most persuasive authority on the point. 

The calculation of future loss of financial “dependency”

108. Again, I have derived assistance from the calculations made by each party which include calculations based upon Table 9.1 of Luntz and the conventional figure of 66 per cent where both spouses are earning and there are no children or, in the case of the defendant’s table, adjusted percentages assuming the birth of children. For the reasons I have previously given, I consider that the defendant’s table is too conservative concerning Ms Urquhart’s probable promotion. Ms Urquhart would probably have been promoted to the position of Sergeant at pay point 3.2 or 3.3 by now. Her weekly net income, assuming redeployment to an operational role, would well have been substantially in excess of $1,000 per week, and the plaintiff’s financial dependency (assuming no children) would have been in the order of $440 per week adopting the conventional method of 66 per cent of their combined income less the plaintiff’s income. The dependency would have been less assuming the arrival of children who were dependent upon the incomes of both the plaintiff and Ms Urquhart during periods when they both worked. In future years the financial dependency of the plaintiff would have increased as Ms Urquhart was promoted to the positions of Senior Sergeant, Inspector and eventually Superintendent.

109. The plaintiff’s calculations overstate the amount of the loss of future financial dependency for the reasons that I have previously given in respect of past loss. However, the defendant’s figures understate the extent of the loss, again, for the reasons previously given by me. These include a more conservative assessment of Ms Urquhart’s likely rank at the present time and in the future.

110. If one was to assume that the plaintiff and Ms Urquhart would not have had children by now then the plaintiff’s calculations for the period commencing 1 July 2010 of $442.45 using the conventional method is a reasonable guide to the extent of the plaintiff’s dependency. If, however, children had been born there may have been some slight delay to Ms Urquhart’s promotion and a financial impact on their combined incomes, and therefore the extent to which Ms Urquhart’s income was available to support the plaintiff.

111. The contingency of the birth of children needs to be taken into account. One approach is to attempt to take account of the advent of children by adjusted percentages, based upon the Luntz Table or a 75 per cent rule of thumb. Such an approach may give an inaccurate appearance of arithmetic precision. I have regard to those calculations. The plaintiff’s supplementary table of loss of pecuniary benefit after 1 July 2010^[50] adopts a range of percentages.  It generally reflects my findings concerning the career path that Ms Urquhart would have pursued.  It calculates figures for future loss on different bases.  It does not take into account periods when Ms Urquhart may not have received the operational shift allowance.  However, I conclude that for most of her years in senior levels in the police force Ms Urquhart would have been entitled, like other senior officers, to such an allowance save for periods when she was performing policy work or other work that was performed during standard hours.  The calculation of loss of future financial dependency cannot be undertaken with precision.  However, I have found the plaintiff’s supplementary table a useful guide.

112. It includes calculations which reduce what would otherwise be the 66 per cent dependency figure to 60 per cent and 50 per cent. It also calculates what would have been, in effect, the family’s dependency upon Ms Urquhart, by adopting the conventional dependency figure of 75 per cent for a parent and two children, and then applies a percentage of 45 per cent to the figure arrived at to reflect the plaintiff’s share of this dependency. I principally rely on these calculations as a guide in arriving at the plaintiff’s loss of “dependency” after 1 July 2010. They calculate the following amounts:

113. I consider an appropriate figure which takes account of the birth of children is $300,000 before applying a discount of 20 per cent for a variety of other contingencies. This produces a figure of $240,000 for loss of future financial dependency.

Loss of superannuation

114. Ms Urquhart was entitled to superannuation benefits of 18 per cent of her gross income. The plaintiff claims compensation by way of 18 per cent of both past and future economic loss “to reflect the plaintiff’s loss of benefits of superannuation”. Section 56 of the Civil Liability Act 2003 provides that the maximum amount of damages that may be awarded to an employee for economic loss due to the loss of employer superannuation contributions is the relevant percentage of damages payable for the deprivation of impairment of the earning capacity on which the entitlement to the contributions is based.  Section 56(2) provides the relevant percentage is that prescribed by law.  That percentage is nine per cent.  The section does not apply to this claim as the damages are not awarded to an employee.

115. The plaintiff submits that if he has lost amounts by way of past and future loss of financial dependency then he has also lost the benefit of 18 per cent of that same income by way of lost superannuation benefits. The defendant submits that it is wrong in principle to treat superannuation for Ms Urquhart on the same basis as wages income. Superannuation is not available until retirement, and the defendant submits there is no basis to adopt the plaintiff’s approach, which assumes the same percentage of dependency with respect to superannuation as with respect to wages income.

116. I accept the defendant’s submission that it is wrong to treat superannuation on the same basis as wages income. However, I do not accept the defendant’s further submission that, where the plaintiff himself will have his own superannuation entitlements, there is no proper foundation upon which to treat him as having established an expectation of dependency on retirement with respect to the superannuation entitlements of Ms Urquhart. The defendant submits that the position in this case is “clearly distinguishable from the paradigm case of the homemaker’s reasonable expectation of access to the superannuation entitlements of a breadwinner”. I do not accept this submission. In an era in which two-income families are commonplace it is unhelpful to determine issues by reference to what are said to be paradigm cases of a homemaker who is dependent upon the breadwinner. The superannuation to which Ms Urquhart would have been entitled had she survived and pursued a career in the police force until retirement is a benefit to which the plaintiff would have had a reasonable expectation of sharing, just as Ms Urquhart would have had a reasonable expectation of sharing the benefits of the plaintiff’s superannuation upon his retirement. Account should be taken of the benefits likely to have been enjoyed by the plaintiff from a superannuation fund to which Ms Urquhart’s employer would have contributed and of any voluntary contributions to superannuation that Ms Urquhart may have made to superannuation, particularly during the latter stages of her career when she and the plaintiff probably would have had a substantial joint income with a significant level of discretionary spending. I shall, however, confine my consideration to the 18 per cent employer contribution to her superannuation.^[52]

117. The reason why superannuation must be treated differently to wages income is, as the defendant submits, it is not available until retirement. However, it is a significant financial benefit. The plaintiff claims that he has lost the benefit of 18 per cent on top of the loss of the dependency by way of that income.  The defendant submits that it is not easy to deduce any “rule of thumb” which might be applied to a household comprised of the plaintiff and Ms Urquhart and how it might be speculated their superannuation entitlements would be dealt with at a point in time decades into the future.  However, an appropriate and reasonable assumption is that each of them would have drawn upon their superannuation upon their retirement.  Depending upon the legislative provisions that operated at the time each retired, there may have been some scope to begin to draw down upon superannuation by way of an annuity after reaching the age of 55 and prior to any actual retirement.  There may have been financial and taxation advantages in doing so whilst continuing to contribute towards superannuation.  But I shall proceed on the basis that the plaintiff and Ms Urquhart would each have accessed his or her employer-funded superannuation entitlements upon retirement and used this for their mutual support.

118. The loss of Ms Urquhart’s expected superannuation benefits should be reflected in a separate award. The defendant argues that the award should recognise the fact that superannuation contributions are taxed upon payment into the fund and on payment out of the fund.^[53]    I accept that the taxation of superannuation should be taken into account along with a number of other factors in arriving at the present value of the loss of an employer’s compulsory contribution to superannuation.  However, this does not justify a calculation based on 70 per cent of the contribution.  In personal injury cases in Queensland the usual practice is to award the loss based on the compulsory contribution rate of 9 per cent to avoid complicated calculations involving the assumed growth of superannuation funds and the impact of concessional rates of taxation.^[54]  For reasons that are discussed in a number of authorities there is much to commend the adoption of a rule of thumb involving the rate of the employer’s compulsory contribution.^[55]  The fact that this is in the nature of a Lord Campbell’s Act action, rather than a personal injuries case, does not alter the general principles governing the assessment of damages for the present value of lost superannuation benefits that would have been received in the future.  Some of these principles were discussed by Dutney J in Helsham v Rye^[56] and I respectfully adopt his Honour’s analysis.

119. The application of the employer’s contribution rate of 18 per cent to both past and future economic loss is appropriate in the circumstances of the case. It takes account of, amongst other things, the fact that the figures to which it is applied are based on contingencies and discounts for the present value of future losses net of tax.

120. I note the defendant’s oral supplementary submissions made on 29 July 2010 that, applying life expectancy tables, Ms Urquhart would have been expected to survive the plaintiff, and continued to enjoy part of her superannuation benefits after the plaintiff’s death. I do not consider that this calls for a further adjustment. The manner in which the plaintiff and Ms Urquhart would have used and possibly exhausted their combined superannuation entitlements following retirement is highly speculative. The plaintiff had an expectation of sharing in the benefit of Ms Urquhart’s superannuation following her retirement for as long as he lived, and possibly inheriting it.  The plaintiff and Ms Urquhart may have spent it on themselves or used it to enhance the welfare of children or grandchildren.  It was a benefit to which the plaintiff had a reasonable expectation following his retirement and the retirement of Ms Urquhart.

121. The calculation of the loss of superannuation is based on a calculation of loss of financial dependency that already takes account of a variety of contingencies. I consider that the figure of 18 per cent reflects a fair assessment of the financial loss suffered by the plaintiff in not being able to benefit from the substantial superannuation that Ms Urquhart probably would have received upon retirement from a lengthy career in the police force, during which time her employer would have contributed 18 per cent towards her superannuation.

122. I assess loss of superannuation benefits at 18 per cent x ($58,000 + $240,000) = $53,640.

Loss of services

123. The plaintiff and Ms Urquhart had an informal division of domestic duties. At Bamaga the plaintiff took care of the dog, motor vehicles, boat, garden and lawn mowing whilst Ms Urquhart attended to various household chores. The services supplied by the plaintiff were about 8-10 hours per week. Ms Urquhart provided services for approximately 13 hours per week, including one hour per day of cooking; about three hours per week of shopping and obtaining supplies and about three to four hours per week of cleaning, washing, ironing and other general household work at a minimum.

124. The plaintiff’s evidence was that it was likely that this “division of labour” would have continued in the long term. However, his submissions accept that as Ms Urquhart progressed during her career, it is unlikely that she would have continued to provide services to such an extent given that her career and her job prospects would have been very demanding.  However, it is likely that she would have continued to provide significant services during the course of their lifetime.

125. Account should be taken of the fact that Ms Jens provided some domestic services to the plaintiff during the period of approximately 26 weeks when they lived together, and the contingency that Ms Hay or some other future partner will provide domestic services that have the effect of reducing the plaintiff’s future loss of services.

126. The parties agree that the commercial rate for care and assistance is $20 for past care and $22 for future care. Nguyen v Nguyen^[57] and the authorities that have followed it recognise that a surviving spouse is not automatically entitled to the benefit of a substantial award of damages calculated at commercial rates in every case where the deceased provided, and was likely to continue to provide, gratuitous and substantial domestic services.  I respectfully adopt the discussion of the authorities of Williams J (as his Honour then was) in White v Mt Isa Mines Ltd.^[58]  I have regard to the observations of Brennan and Deane JJ in Nguyen v Nguyen.  The majority judgment of Dawson, Toohey and McHugh JJ accepted that quantification of the tangible advantage that has been lost by reason of the death of the deceased is not necessarily to be made by reference to the actual cost of providing substitute services.^[59]  A number of authorities proceed to value lost services on the same basis as personal injury cases, namely at the commercial rate.^[60]   Commercial rates are not to be treated as “the invariable yardstick of the assessment”,^[61] and may only be “a starting point in assessing the plaintiff’s loss”.^[62]  This is not to say that damages should be assessed only where the lost services have been or are likely to be replaced by services that are paid for.  Account must be taken of the value of the domestic services that Ms Urquhart would have provided for the plaintiff’s benefit even if they are now performed, or will be performed, by the plaintiff or by others voluntarily.  The provision of these services by the plaintiff or by others voluntarily may involve a substantial opportunity cost.  Still, as Mason CJ, Toohey and McHugh JJ stated in Nguyen,^[63] in some cases the market cost may be too high to be the reasonable value of the services.  Nguyen v Nguyen (No 2)^[64] supports the proposition that the quantification of the loss must be kept within reasonable bounds.

127. The domestic services that Ms Urquhart supplied for the plaintiff’s benefit, and which one might have expected her to continue to provide to him, were significant in their contribution to the plaintiff’s material comfort and welfare. I do not consider that a quantification of the value of those lost services that has reference to the commercial cost of substitute services is inappropriate or will lead to a quantification that is out of proportion to the loss actually suffered by the plaintiff.

128. As to past loss of the value of services, the plaintiff claims 11 hours per week at the rate of $20 per hour for a period of 269 weeks in the sum of $59,180. Some credit should be given for some services provided by Ms Jenns over 26 weeks. Four hours per week for 26 weeks at $20 per hour yields about $2,000. I consider that there should be some further adjustment for some services provided in recent months by Ms Hay. I assess reasonable compensation for past loss of services at $55,000. This figure should be reduced by 15 per cent on account of general contingencies. This results in an amount of $46,750.

129. As to future loss of services, the plaintiff claims 10 hours per week at the rate of $22 per hour for a period of 37 years (until the deceased reached 70) in the sum of $196,680.  That sum should be discounted for contingencies including the contingency that services may be provided by Ms Hay or some other future partner.  A higher percentage than 20 per cent should be applied in this regard because of the prospect that a future partner might have more time and capacity to provide these services than Ms Urquhart would have in pursuing a demanding career.  The plaintiff suggests a reduction of 20 per cent to yield a sum of $157,344.  However, I do not consider that a reduction of 20 per cent is sufficient to reflect the contingency that as Ms Urquhart’s career progressed she would have had less time to continue to provide the domestic services that she provided in earlier years.  The assessment of compensation for loss of services is governed by the principle of reasonableness. Still, the plaintiff’s loss is real and substantial.  He or others will have to perform the domestic work that Ms Urquhart would otherwise have performed.  These substituted services will come at either a direct cost or an opportunity cost, if, for example, the plaintiff undertakes these tasks.  I consider that it is appropriate to reduce the sum of $196,680 by 35 per cent to take account of contingencies in general, the specific contingency of a reduction in the number of hours that Ms Urquhart would be able to provide domestic services as a busy senior police officer, and, more generally, to arrive at a reasonable quantification of the plaintiff’s loss.  This produces a figure of $127,842.

Benefits received as a consequence of Ms Urquhart’s death

130. In assessing damages in a claim such as this there must be taken into account “the pecuniary benefits, arising on [the] death, to which the claimant had a reasonable expectation, whether as of right or otherwise.”^[65]  Ms Urquhart died intestate in consequence of which the plaintiff obtained a grant of letters of administration as the de facto spouse entitled on intestacy.^[66]  The assets to which the plaintiff became entitled on intestacy appear in a statement of assets and liabilities that was tendered.^[67] 

131. The financial benefit which the plaintiff obtained on the intestacy should be taken into account in accordance with the statement of principle of Dixon J in Public Trustee v Zoanetti, subject to statutory exclusions.  The benefit may be the value of the accelerated receipt of the deceased’s estate.  The benefit to the claimant for which credit must be given is not simply the value of the assets that were received on the distribution of the estate since, typically, the claimant would have received similar assets on the later death of the deceased, if not more.^[68]  The authorities establish that in many cases the benefit from immediate receipt is likely to be far outweighed by the fact that if the deceased had lived longer a much larger estate would have been accumulated and passed on to the beneficiaries.^[69]  A strictly proper approach may be to make a deduction for the acceleration and then make an addition for the future savings lost.^[70]  However, I do not consider that such an approach is required in the circumstances of the present case.  This is a case in which it is likely that the plaintiff would have received a much larger estate if Ms Urquhart had lived for many decades and the loss of this benefit outweighs the accelerated receipt of the amount he received upon intestacy.  Had Ms Urquhart not died in such tragic circumstances and had lived to a normal life expectancy then she may have survived the plaintiff.  But for any number of reasons she may not have, and in that event the plaintiff would have, either alone or with others, stood to inherit what would have been, in some decades time, a substantial estate made up of assets acquired either in Ms Urquhart’s name, or jointly owned assets that the plaintiff had a reasonable expectation of acquiring by survivorship.  In the circumstances, I do not consider it appropriate to give credit for the value of the acceleration of receipt of the benefits that the plaintiff has in fact gained as a result of Ms Urquhart’s death.

The Section 38 exclusion

132. The assets of Ms Urquhart included a small amount of money held in a Credit Union and some unpaid wages and holiday pay. The balance of her estate consisted of household and personal chattels, the value of which was not ascertained at the date of compilation of the statement of assets and liabilities upon which the parties relied, and a number of superannuation benefits. Some of these were small amounts in the order of a few hundred dollars. The most substantial was a BT Business superannuation policy that had a reported investment value of $2,487.17 and a “current value of life assurance cover” of $77,500, and a Q Super account with an entitlement of $36,150 and a “death benefit” of $200,000. The combined value of the entitlements and death benefits in the BT and Q Super accounts therefore exceed $300,000.

133. The liabilities of the estate were apparently funeral expenses which had yet to be ascertained and a possible income tax liability. Ms Urquhart held a joint car loan with the plaintiff with a credit union that was secured over the vehicle, which was jointly owned. In summary, the estate had relatively inconsequential liabilities and the overwhelming majority of the assets that the plaintiff acquired upon intestacy were in respect of superannuation and death benefits associated with superannuation policies.

134. Section 38 of the Commonwealth Act relevantly provides:

“38.Proceeds of insurance policies etc.

In assessing damages in respect of liability under this Part there shall not be taken into account by way of reduction of the damages:

(a)a sum paid or payable on the death of, or injury to, a passenger under a contract of insurance;

(b)a sum paid or payable out of a superannuation, provident or like fund, or by way of benefit from a friendly society, benefit society or trade union; ...”

135. Although there was passing reference in the plaintiff’s oral evidence to the relevant sums being paid to him, I conclude on the basis of the document styled “Estate of Sally Elizabeth Urquhart Deceased” and in the absence of any application to reopen so as to clarify the matter, that the superannuation entitlements and death benefits were paid to the plaintiff as administrator of Ms Urquhart’s estate whereupon he had an entitlement to the net assets on intestacy.

136. The defendant correctly submits that, as a matter of construction, s 23 of the Supreme Court Act 1995 does not apply to the present claim.  Yet the defendant points to the additional words contained in s 23 to argue that the absence of similar words in s 38 of the Commonwealth Act affects the construction of s 38 of the Commonwealth Act.  Section 23 of the Supreme Court Act 1995 contains a similar range of matters to s 38, being sums that are not to be taken into account in assessing damages in respect of a person’s death.  Section 23 concludes with the following words:

“whether any such sum or gratuity is paid or payable to or is received or receivable by the estate of the deceased person or by any person for whose benefit the action is brought.”

The existence of a different State statute in this form, like the existence of other State provisions, is not an appropriate aid to the interpretation of s 38 of the Commonwealth Act.  Section 38 of the Commonwealth Act should be construed according to its text, its statutory context and the apparent purpose of the Commonwealth legislature in excluding certain benefits from being brought into account in accordance with the general principles discussed in Public Trustee v Zoanetti.  The additional concluding words in s 23 of the Supreme Court Act 1995 may have been included out of an abundance of caution to address the kind of argument advanced by the defendant.  Their presence in that Act does not affect the interpretation of s 38 of the Commonwealth Act.

137. The defendant submits that it should make a difference in the application of s 38 as to whether the benefit that is paid under a life insurance policy or out of a superannuation fund is paid to a claimant directly or indirectly. The plaintiff, however, submits that the language of s 38 is directed to the source of the payment, not the identity of the immediate payee. I accept the plaintiff’s submission that the interpretation contended for by the defendant adds a gloss to the words that appear in the statute, namely that the identity of the recipient is relevant to whether the payment is taken into account.

138. One can imagine a variety of circumstances in which a sum that is paid or payable under a life insurance policy on the death of a passenger, or a sum that is paid or payable out of a superannuation fund (including a death benefit that forms part of a superannuation entitlement) is not paid directly to the claimant in a loss of “dependency” action. A payment made to be held on trust for the benefit of an infant beneficiary is one such example. In this and other cases it is difficult to discern in the words of s 38 or its context a legislative intent as to why it should make a difference as to whether the beneficiary was paid the sum directly or received its benefit indirectly. Subsections 38(a) and (b) focus upon the source of the benefit, not the identity of the immediate recipient. I acknowledge that in a case such as the present the amounts paid to an executor or administrator may be used to pay creditors (if any) of the deceased and other expenses. However, in such a case a reduction of the quantum of the sum does not affect the character of the source of the payment, and the net benefit that is paid to the claimant will be the result of the sum that was paid under a life insurance policy or out of a superannuation fund.

139. I accept the plaintiff’s submission that it is more likely that the legislature intended that funds received by the dependents or the estate, the entitlement to which arose because of an arrangement entered into by the deceased, should not reduce the liability of the defendant. The apparent policy of s 38(a) and (b) is to exclude from the operation of the principle that benefits should be taken into account, the benefits that arise when a sum is paid under a life insurance policy or out of a superannuation fund. These are benefits that are paid because insurance premiums or contributions to superannuation gave rise to entitlements which the legislature apparently intended should not be brought into account in favour of defendants in proceedings such as these.

140. I conclude that the benefits that the plaintiff received by reason of the payment of death and superannuation benefits should not be brought into account by way of reduction since, upon its proper construction, s 38 precludes this.

141. Accordingly, had I brought into account any accelerated benefit arising from the early receipt of Ms Urquhart’s estate, s 38 would have operated to exclude from any such benefit the death cover benefits and superannuation entitlements that were paid to the plaintiff as administrator, the benefit of which he gained as the surviving spouse of the deceased.

Proceedings in the United States

142. The plaintiff was cross-examined about other proceedings that he had commenced with others in the United States against other defendants.  No submission was made that any contingent benefit that the plaintiff may derive in the event that these proceedings are successfully prosecuted or settled should be brought into account.  I note in passing that the claims made in the US proceedings include claims for heads of damages that are not available in the present action including damages for distress and exemplary damages.  Damages for distress are not recoverable in the present proceedings and the possibility of recovering such damages in proceedings in another jurisdiction does not justify them being brought into account.  I assume that the absence of such a submission involves a recognition by the defendant that in accordance with the principles discussed in Public Trustee v Zoanetti it is inappropriate to bring into account in an action such as the present claims for distress or consolation, being heads of damages that are not recoverable in the present proceeding.

Costs and the limitation on liability

143. The defendant submits that the reasoning in Swiss Bank Corp v Brink’s-MAT Ltd^[71] and the absence of any provision in the statute with respect to costs of the kind contained in Article 22(4) of the Convention considered in that case means that a carrier’s liability cap of $500,000 under s 31 of the Commonwealth Act is inclusive of costs and legal fees.

144. There is Australian authority to the contrary in Colombera v MacRobertson Miller Airlines Ltd.^[72]  I do not accept the defendant’s submission that the statutory cap of  $500,000 is inclusive of costs.  The defendant seeks to treat interest and costs in a similar fashion.  However, I do not consider that this is an appropriate interpretation of the statutory cap. 

145. The Commonwealth Act includes in its schedules various conventions including the “Montreal No 3 Convention”. Article 22 deals with limits on liability. Article 22(3)(c) states:

“The costs of the action including lawyers’ fees shall not be taken into account in applying the limits under this Article.”^[73]

The terms of this and other conventions which appear as Schedules to the Commonwealth Act are not directly applicable to the interpretation of s 31.  The specific provisions made in Warsaw Convention, as amended, concerning costs informed the judgment in Swiss Bank.  Bingham J (as his Lordship then was) observed in respect of article 22(4) of the Warsaw Convention as amended at The Hague^[74] that it indicates that the awarding of costs or legal fees on top of the sum limited was permissible, and that if those who framed the conventions intended interest to be awarded in addition to the monetary limits and to be treated in the same way as court costs or legal expenses, it would have been the subject of special mention.  The fact that conventions make specific provision to the effect that legal costs are to be not included in the limit was essential to the reasoning in Swiss Bank.  The reasoning in Swiss Bank does not, however, determine the interpretation of s 31 of the Commonwealth Act.

146. I interpret “the liability of a domestic carrier” with which the limitation of liability provisions of s 31 deal to be its liability under Part IV. In the case of liability in respect of the death of a passenger, s 35(2) provides, subject to s 37, that the liability under Part IV is in substitution for “any civil liability” of the carrier under any other law “in respect of the death of the passenger or in respect of the injury that resulted in the death of the passenger”. The terms of s 35 concerning liability in respect of death are apt to refer to civil liability to pay damages, and possibly interest on damages. This is the nature of the liability of a domestic carrier that is limited by s 31. The language of these sections is not apt to include a discretionary award of costs as a civil liability “in respect of the death of a passenger” that is subject to the limitation in s 31. Had the Parliament wished to reverse the effect of the decision in Colombera to instead provide that an order for costs falls within the limitation of liability in s 31, then it might have done so by clear words.  Section 31 is at least ambiguous concerning the nature of “the liability” to which the section refers.  The defendant does not contend that Colombera is plainly wrong and that I should not follow it.

147. In the absence of clear words that suggest that the $500,000 limit on liability extends to the discretionary power to award costs, I conclude that the statutory limit applies in this case to the plaintiff’s claim for damages but not to my discretion to order costs.

Conclusion

148. The plaintiff has established his claim. Damages are assessed under the following heads:

• Past loss of financial dependency in the sum of $58,000

• Future loss of financial dependency in the sum of $240,000

• Loss of superannuation benefits at 18 per cent of past and future economic loss in the sum of $53,640

• Past loss of services in the sum of $46,750

• Future loss of services in the sum of $127,842

These amounts total of $526,232.

149. The assessment of damages is subject to the statutory limit of $500,000 imposed by s 31 of the Commonwealth Act. Subject to submissions on costs, including whether the order for costs should be other than on a standard basis, the orders of the Court will be:

1. Judgment for the plaintiff against the defendant in the sum of $500,000.

2. The defendant pay the plaintiff’s costs of and incidental to the proceeding to be assessed on a standard basis.