HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJTERESA MARGARET DE SALES APPELLANT
AND
ALBERT INGRILLI RESPONDENT
De Sales v Ingrilli
[2002] HCA 52
14 November 2002
P57/2001ORDER
1. Appeal allowed in part.
2. Set aside order 2 made by the Full Court of the Supreme Court of Western Australia on 1 December 2000.
3. If, within 28 days of the date of the order of this Court, the parties submit to the Registrar a signed minute of their agreement to the amount for which judgment should be entered, in place of order 2 of the orders of the Full Court, order that, in place of order 2 of the Full Court's order, judgment is to be entered for that sum. If the parties do not, within that time, submit such a signed minute, the matter is to be remitted to the Full Court for further hearing and determination in accordance with the reasons of this Court.
4. Respondent to pay appellant's costs of the appeal.
On appeal from the Supreme Court of Western Australia
Representation:
B L Nugawela for the appellant (instructed by Friedman Lurie Singh)
M J Buss QC with N P Dobree for the respondent (instructed by Hoffmans)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
De Sales v Ingrilli
Damages – Wrongful death of spouse – Basis upon which to assess damages to surviving spouse and dependants – Whether discount for prospect of remarriage should be made – Discount for general contingencies.
Lord Campbell's Act – Compensation to relatives – Damages – Basis upon which to assess damages for spouse and dependants – Whether discount for prospect of remarriage should be made – Whether such consideration is already included in discount for general contingencies.
Precedent – Damages – Whether discount for prospect of remarriage should be made – Whether too speculative – Whether based upon outdated norms – Whether previous expressions of the law regarding such discounts should be reconsidered and re-expressed.
Fatal Accidents Act 1959 (WA).
Lord Campbell’s Act 9 & 10 Vict c 93.
GLEESON CJ. In assessing damages to be awarded to a surviving spouse under fatal accidents legislation, what, if any, account should be taken of the chance of the surviving spouse remarrying and thereby obtaining some financial benefit which offsets or diminishes the claimed loss?
The appellant's husband was killed in an accident on the property of the respondent, in Western Australia, on 12 August 1990. The respondent was found to have been negligent, and the deceased to have been partly to blame. Issues of liability are not presently relevant. The deceased was 31 at the time of his death; the appellant 27. The deceased and the appellant were married in April 1985, when they were 26 and 22. There were two children of the marriage, born in October 1987 and April 1990. From 1985 to 1989, the appellant had worked for various periods part-time as a data entry operator. She had also undertaken some part-time study. After her second child was born, she worked full time, without salary, in the family home. The deceased was a practising accountant and tax agent, and was employed as a financial controller and company secretary. He also did some gardening and other domestic work in the home. Following her husband's death, the appellant took up full-time employment as a secretary, office worker and later, stock controller. The appellant had not remarried at the time of trial in 1999. In the period since her husband's death, she has been involved in one relationship of limited duration, in which marriage was never contemplated.
The appellant commenced proceedings in the District Court of Western Australia under the Fatal Accidents Act 1959 (WA) ("the Fatal Accidents Act"). She claimed damages under that Act on behalf of herself and her two children for injury they sustained as a result of the death[1]. Liability was tried first. The respondent was found liable, but his liability was reduced by one-third on account of the contributory negligence of the deceased. The assessment of damages was then undertaken by HH Jackson DCJ. The nature of the claim made on behalf of the appellant and her children will be examined below. The trial judge made no deduction for the general "vicissitudes of life", but applied a discount of five per cent to the appellant's damages to reflect the chance of the appellant obtaining financial benefit from remarriage ("the remarriage discount").
[1]No objection was raised as to the appellant's standing to bring these proceedings, on the grounds that she was not the executor of the deceased's estate, as prescribed by s 6(1)(b) of the Fatal Accidents Act.
There was an appeal, and cross-appeal, to the Full Court of the Supreme Court of Western Australia. One of the grounds of the appeal and of the cross-appeal concerned the remarriage discount. The respondent argued that the trial judge erred in not applying a significantly higher discount, of say 25 per cent. The appellant argued that no remarriage discount should have been applied. By majority, the Full Court allowed the appeal[2]. Miller J, with whom Parker J agreed, found that the discount applied by the trial judge was "very slight", and that "for a woman of the appellant's age and credentials a 20 per cent deduction would be appropriate." The overall deduction made in relation to the appellant's damages was 20 per cent for the possibility of remarriage and five per cent for general contingencies. The general contingencies applied also in the case of the children. Wallwork J, in dissent, would have rejected this aspect of the appeal on the basis that the trial judge was entitled to apply a discount of five per cent for the contingency of remarriage, even though he himself would have set the discount higher. He did not disagree with the trial judge's decision not to make a deduction for general contingencies, but the brief reasons he gave, and an accompanying reference to a text book, suggests that his Honour may have been addressing a question different from that which the majority had in mind.
[2]De Sales v Ingrilli (2000) 23 WAR 417.
The appellant appeals to this Court against the findings of the Full Court as to the appropriate discount to be applied for the chance of the appellant obtaining support from remarriage. The appellant contends that the Full Court and trial judge erred in that they should not have applied any discount for the prospects of remarriage. Alternatively, the appellant submits that the Full Court erred in increasing the remarriage discount. There is also a complaint about the discount of five per cent for general contingencies.
The nature of the cause of action
The issue in the present appeal must be considered in the light of the nature of the cause of action being pursued by the appellant, and of the manner in which she formulated her claim for damages.
In Western Australia, as in other Australian jurisdictions, legislation (the Fatal Accidents Act), provides that, where the death of a person is caused by a wrongful act, and the victim, had he or she survived, would have been entitled to sue, the wrongdoer is liable to be sued in an action brought for the benefit of relatives of the deceased. Such legislation originated in the United Kingdom in 1846 with Lord Campbell's Act[3]. Section 4 of the Fatal Accidents Act provides:
"Where the death of a person is caused by a wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued is liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under such circumstances as amount in law to a crime."
[3]9 & 10 Vict c 93.
Section 6(1) provides that an action under the Act is brought for the benefit of relatives of the deceased. The term "relative" is defined in Sch 2. It includes, amongst others, a husband or wife, father or mother, son or daughter, people in certain other specified degrees of blood relationship, and any person who, although not married to the deceased, lived with the deceased as husband or wife on a permanent and bona fide domestic basis in certain circumstances and for a certain time. (For the purposes of these reasons it is unnecessary to distinguish between legal and de facto marriage.)
Section 6(2) provides:
"In every action [under this Act] the court may give such damages as it thinks proportioned to the injury resulting from the death to the parties respectively for whom and for whose benefit the action is brought."
Section 6(4) states that any damages recovered shall be divided amongst the persons for whose benefit the action was brought in such shares as the court sees fit.
Such legislation performs a clear, but limited, social purpose. It seeks to provide some compensation to certain classes of person who suffer in a certain manner in consequence of the death of another, where the death resulted from an actionable wrong. The persons for whose benefit such an action may be brought do not include all those who might suffer injury in such a case; but they are the only persons who can recover damages under the legislation. A person might suffer financial loss in consequence of the death of an employer, a benefactor, a business or professional associate, or someone who stood in some other relationship to that person, including a supportive relationship not covered by the definition of "relative"; but that does not give rise to an entitlement to claim. It is only persons who fall within the defined class of relative for whose benefit an action may be brought.
The Fatal Accidents Act, like its British predecessor, is directed to compensation for "injury". Injury is not defined. It has been interpreted to mean the loss of a benefit the claimant would otherwise have reasonably expected to receive from the deceased, had the accident not occurred. As explained by Windeyer J in Parker v The Commonwealth[4], two points should be noted about what damages are recoverable for injury. First, damages are calculated by reference to the pecuniary benefit that could reasonably have been expected from the continuance of the life had death not occurred. Damages do not compensate for non-pecuniary injuries such as grief. The provision for apportionment of damages according to "shares" supports the construction of injury as a pecuniary concept[5]. Second, damages for injury are calculated on a balance of pecuniary gains and losses consequent upon the death[6]. In some circumstances, this may mean no damages are recoverable. For example, if a deceased person had earned all of his or her income from capital, and, upon death, that capital was inherited by the surviving spouse, the surviving spouse would have suffered no pecuniary loss[7].
[4](1965) 112 CLR 295 at 308.
[5]Blake v The Midland Railway Co (1852) 18 QB 93 at 110 per Coleridge J [118 ER 35 at 41].
[6]Public Trustee v Zoanetti (1945) 70 CLR 266; Nguyen v Nguyen (1990) 169 CLR 245.
[7]Grand Trunk Railway Company of Canada v Jennings (1888) 13 AC 800 at 804.
Historically, the paradigm case under the Fatal Accidents Act was a claim by a dependent wife for damages arising from the death of her husband, who was the family breadwinner. The injury for which damages were recoverable was often described as a loss arising from "dependency". This was the description given to the appellant's claim by the trial judge and the Full Court in this case. In fact, it was the way her claim was expressed in her Statement of Claim. And it was apt in her case. However, injury can occur in circumstances in which there is no dependency. For example, it is now common for both parties to a legal or de facto marriage to have salaried or income-producing occupations. Each may expect to obtain financial advantage from the other, even where they are both fully able to support themselves from their own income, and are therefore not "dependent" in any sense. Characterising the loss as arising from dependency was reasonable in this particular case, but it would be inaccurate and misleading as a comprehensive description of the basis of claims under the Fatal Accidents Act. It would also be erroneous to assume that injury of the kind for which the legislation compensates can only be offset or diminished by a new relationship if that relationship involves dependency.
Further, loss of an expected benefit is not restricted to loss of direct financial support. A claimant's loss may include the value of services the deceased would have provided around the home[8]. A starting point for determining the pecuniary value of these services may be the commercial rate for the provision of the services. In this case, in addition to the loss of a share of the deceased's income, the appellant was awarded modest damages for loss of handyman and childcare services provided by the deceased[9]. Similarly, a husband whose wife worked full-time in the home might recover for the financial loss he suffers as a result of his wife's death, because her services were of value to him. Such an amount is recoverable even if the services are subsequently performed by the surviving spouse or a third party at no cost[10]. With an ageing population, the value of the care provided by one spouse to another may be of increasing importance; and it may be costly to replace. Perhaps a time will come when the paradigm case of a claim under the Fatal Accidents Act will be, not that of a young person injured by the loss of a salary-earning spouse, but that of a person of mature age injured by the loss of a carer.
[8]Nguyen v Nguyen (1990) 169 CLR 245 at 247 per Brennan J, 254 per Deane J, 263-265 per Dawson, Toohey and McHugh JJ.
[9]See also Watson v Burley (1962) 108 CLR 635 (deceased had built family home and maintained a vegetable garden for the benefit of the family); Moffat v The Railway Commissioners of New South Wales (1895) 11 WN (NSW) 101 (deceased child had provided babysitting services to parents).
[10]Nguyen v Nguyen (1990) 169 CLR 245 at 249-250 per Brennan J, 255 per Deane J, 264-265 per Dawson, Toohey and McHugh JJ.
Calculating damages for injury
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 adjustments and allowances will be influenced by the manner in which the primary sum is calculated. In a case like the present, there are three main elements in determining the primary sum. Each element involves speculative judgments, which cannot be made with accuracy. The court assesses what benefits the deceased would have brought to the family, in the form of either income or the provision of services. The court determines the share of that benefit that would have been enjoyed by a relative during the deceased's lifetime. And the court determines the period for which a relative could reasonably have expected to receive the benefit. For example, a surviving spouse may say that it was reasonable to expect to receive a benefit measured as a share of the deceased's income until the deceased's expected age of retirement. A child of the deceased may reasonably expect to receive such a benefit until the child reaches an age of expected financial independence. The primary sum awarded is the present value of a relative's total expected benefit. The calculation of the primary sum might itself be done by a method that involves allowing for contingencies such as are taken up in actuarial calculations of life expectancy, and the present value of a future income stream.
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.
An example of a case in which a large, and separate, discount was made for particular contingencies is the decision of the Court of Appeal of New South Wales in McIntosh v Williams[11]. That was a widow's claim under the Compensation to Relatives Act 1897 (NSW). The evidence showed that the marriage was very likely to fail. The deceased had a long-standing relationship with another woman, with whom he had a child. The Court of Appeal addressed the contingencies of divorce and remarriage separately from general vicissitudes, and made a discount of 50 per cent on account of those matters.
[11][1979] 2 NSWLR 543.
A typical process of reasoning in relation to a widow's claim is seen in the judgment of the Privy Council in a Canadian case, Nance v British Columbia Electric Railway Co Ltd[12]:
"A proper approach to these questions is, in their Lordships' view, one which takes into account and gives due weight to the following factors; the evaluation of some, indeed most, of them can, at best, be but roughly calculated.
Under the first head - indeed, for the purposes of both heads - it is necessary first to estimate what was the deceased man's expectation of life if he had not been killed when he was; (let this be 'x' years) and next what sums during these x years he would probably have applied to the support of his wife. In fixing x, regard must be had not only to his age and bodily health, but to the possibility of a premature determination of his life by a later accident. In estimating future provision for his wife, the amounts he usually applied in this way before his death are obviously relevant, and often the best evidence available; though not conclusive, since if he had survived, his means might have expanded or shrunk, and his liberality might have grown or wilted. … Supposing, by this method, an estimated annual sum of $y is arrived at as the sum which would have been applied for the benefit of the plaintiff for x more years, the sum to be awarded is not simply $y multiplied by x, because that sum is a sum spread over a period of years and must be discounted so as to arrive at its equivalent in the form of a lump sum payable at his death as damages. Then a deduction must further be made for the benefit accruing to the widow from the acceleration of her interest in his estate on his death intestate … and a further allowance must be made for a possibility which might have been realized if he had not been killed but had embarked on his allotted span of x years, namely, the possibility that the wife might have died before he did. And there is a further possibility to be allowed for - though in most cases it is incapable of evaluation - namely, the possibility that, in the events which have actually happened, the widow might remarry, in circumstances which would improve her financial position."
[12][1951] AC 601 at 614-615.
An example of a similar process of reasoning, in a case where a widower was claiming for the loss of the domestic services of his wife, is seen in the judgment of Deane J in Nguyen v Nguyen[13]:
"As has been seen, it is settled that the 'injury' or 'pecuniary loss' for which damages can be recovered is net loss, on a balance of losses and gains. Commonly, in a modern marital relationship in this country, the spouses share, to a greater or lesser extent, the necessary domestic chores and responsibilities. When one spouse dies, the assessment of the value of the lost benefit of the gratuitous services of the deceased as spouse or homemaker must take account of the fact that those services were, at least in part, for the benefit of the deceased as well as for the benefit of the surviving spouse and of the fact that the surviving spouse is relieved of the burden of rendering gratuitous services for the deceased. The injury constituted by the loss may be reduced by the prospect of remarriage."
[13](1990) 169 CLR 245 at 256-257.
In both judgments reference is made to the prospect of remarriage as a potential discounting factor. The first judgment was written in 1951; the second in 1990.
The appellant's claim
The present appeal is concerned with only two aspects of the manner in which the damages awarded to the appellant were calculated: general contingencies and the possibility of remarriage. Even so, in considering how these subjects were treated, it is essential to bear in mind the way she put her claim. Inevitably, this set the context in which the subject of contingencies arose for decision.
The appellant said that at the time of her husband's death she and her children were financially totally dependent upon the income he brought in to the household from his salaried employment. She contended that, if he had not died, she would have continued to receive the same level of support from him until he reached 65 and perhaps for even longer; each of the children would have been dependent on him until they respectively reached the age of 22. The claim then assessed the deceased's probable earnings from the time of his death until the age of 65, at which he would have retired. It also assessed the extent to which the deceased would have provided for his wife and children out of his income. On the basis of those projections, a loss was calculated and its net present value arrived at. There was also a claim for the value of gardening and domestic services provided by the deceased.
It is obvious that such a claim required consideration of numerous contingencies; some positive, some negative. The assumptions that the marriage would have endured, that the deceased would have remained in his existing employment until the age of 65, that he would then have retired, that the appellant would herself have lived until her husband turned 65, that she would have received the same level of support from her husband over the whole of that period, and that the children would remain dependent until the age of 22, are all self-evidently speculative. But that is the context in which the issue of the possibility of remarriage arose. A widow's claim was made upon the basis that she was fully supported financially by her husband, and could reasonably have expected to continue to receive the same level of support until he turned 65. She also claimed that he provided domestic services of value, for the loss of which she should be compensated. Her claim was for loss of financial support and loss of services. That is the background against which the Western Australian courts allowed for the possibility that such loss might be diminished in consequence of remarriage.
Counsel for the appellant urged on this Court that changes in the role and status of women have made even the consideration of such a possibility outmoded and irrelevant. It may be acknowledged that, in today's society, it is easy to think of individual cases, or of circumstances, in which a widow would not be better off financially as a result of remarrying. It is just as easy to think of individual cases, or of circumstances, in which a married woman would not suffer financial harm as a result of the death of her husband. What follows from that? Some of the arguments of counsel, if taken to their logical conclusion, might suggest that the whole idea underlying the cause of action is now out of date, and that the real solution to the problem is to repeal the Fatal Accidents Act. But we must take the Act, and the appellant's claim, as we find them.
The consequence of making no allowance for the contingency of remarriage (either as part of a general allowance for vicissitudes or as a specific allowance) must be to increase (by a factor of five to 20 per cent, on the approach of the Western Australian courts in this case) the amount to which the appellant is entitled. The primary argument of the appellant, if correct, means that, by reason of changes in the role and status of women, and their increasing independence, a modern widow will be taken to have suffered a significantly greater (not lesser) financial loss in consequence of the death of a husband than her counterpart in earlier times.
Remarriage: actual; prospective; or possible
If a claimant under the Fatal Accidents Act has remarried before the date of trial, that remarriage is taken into account because, as Mahoney JA pointed out in A A Tegel Pty Ltd v Madden[14], it may falsify, or affect, an assumption which would otherwise be adopted in assessing the extent of the injury to the claimant resulting from the death of the deceased. In that case, the Court of Appeal of New South Wales[15] held that a de facto relationship entered into after death and subsisting at trial should be taken into account to reduce the amount to which the claimant was entitled. But even in the case of actual remarriage, what is being allowed for is only a possibility: the possibility that the remarriage will provide pecuniary benefit to the claimant, and that this will wholly or partly reduce the injury sustained by death.
[14][1985] 2 NSWLR 591 at 611-612.
[15]Kirby P, Mahoney and McHugh JJA.
The courts have never assumed that remarriage will inevitably result in such a benefit. In 1968, in Goodburn v Thomas Cotton Ltd[16] Edmund Davies LJ, speaking of possible remarriage by a widow, said:
"She may marry a shirker, or a man with … extravagant personal tastes, or perhaps a man who subsequently walks out on her."
There are probably just as many work-shy, or extravagant, or unreliable men now as there were in 1968. But changing social conditions may also have made it less safe to assume that remarriage will be to the financial benefit of a widow or widower. A widow who remarries might, through her own income, support her new husband. A widower who remarries might marry someone who is unwilling or unable to provide the same domestic services as his previous wife. Even so, it is important to bear in mind, as noted earlier, that financial benefit from remarriage does not necessarily involve dependency.
[16][1968] 1 QB 845 at 855.
If there has been a remarriage, or if there is in prospect a marriage to a particular person, the court will be in a position to examine the circumstances of the particular case, and these may, or may not, call for a separate, and perhaps significant, discount in a proper case.
Where there has been no remarriage, and no particular marriage is in prospect, there is a double contingency involved: (1) the likelihood of a claimant's remarriage; (2) the likelihood of pecuniary benefit from that remarriage.
In assessing the first question, of the likelihood of a claimant's remarriage, courts have sometimes looked to statistical evidence as to the probability of a widow's remarriage. However, such statistics may not take into account factors such as when the remarriage is likely to occur, and its likely duration. The statistics referred to in argument in the present case are outdated, they are only available for widows, and they relate solely to legal remarriage. Attempts by courts to make a subjective assessment of a particular claimant's chances of remarriage are also fraught with danger. In most cases, courts cannot safely predict, either from statistics or a subjective assessment of the claimant in court, whether the claimant is more or less likely than any other person to remarry.
The second contingency the court must assess is the likely pecuniary benefit from any remarriage. It may be reasonable to assume that, as a general rule, marriage brings certain benefits of pecuniary value, in the form of financial support or assistance, or services. But the court is usually unable to predict what will occur in a particular case. It would be impossible to calculate the actual likelihood of financial benefit by reference to any available statistics. A subjective assessment of the particular probability would again be dangerous, as there is no basis on which the court can predict whether a particular plaintiff will marry "well".
The fact that these contingencies cannot be predicted with any certainty does not relieve the court of the task of taking account of them. There are many uncertainties that attend the contingency of a financially beneficial remarriage: when it occurs, whether it will last and for how long, and whether it is or continues to be financially advantageous. In predicting whether a plaintiff will benefit from a de facto relationship, there may be additional uncertainty. For example, in some states there is no legislative provision for courts to make orders for the division of property between de facto partners, or for the payment of maintenance, upon termination of a de facto relationship[17].However, these uncertainties are no greater than many that attend the assessment of other "vicissitudes of life", such as the chance of a person becoming unemployed. In assessing the contingency of unemployment, there are uncertainties as to when a person would have lost employment, whether he or she would have been able to find other employment, and if so, when and on what terms. As a minority of the South Australian Law Reform Committee stated[18]:
"As far as [the] difficulty [of assessing the contingency of remarriage] is concerned, it seems to us to be of the same character as a great many other conjectural questions which a judge must answer before he can arrive at a just solution to a claim, and we can see no ground in principle or in policy for singling out the factor of remarriage for special exemption."
[17]This is currently the position in Western Australia and Queensland. In relation to property orders, cf Property (Relationships) Act 1984 (NSW), s 20; Property Law Act 1958 (Vic), s 279; De Facto Relationships Act 1996 (SA), s 9. In relation to maintenance orders, cf Property (Relationships) Act 1984 (NSW), s 27; De Facto Relationships Act 1991 (NT), s 26; Domestic Relationships Act 1994 (ACT), s 19.
[18]South Australian Law Reform Committee, The Factor of the Remarriage of a Widow in Assessing Damages in Fatal Accidents under the Wrongs Act, Report No 27 (1972) at 9.
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.
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[19]. 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.
[19]Gillies v Hunter Douglas Pty Ltd [1963] QWN 31; Holloway Estate v Giles (2001) 201 Nfld & PEIR 181; 605 APR 181.
Courts have, in some cases, cited a plaintiff's attractive physical appearance, or pleasant demeanour in the witness box, as meriting a higher discount for the possibility of remarriage. However, there is no sound basis for assuming that factors such as appearance, education or job prospects will affect a particular person's chance of financially beneficial remarriage in a predictable manner. Concepts of "marriageability" can be dangerously misleading.
Reference was earlier made to the remark by Miller J about the appellant's "credentials". It seems clear that he was not intending to refer to the appellant's physical appearance. This Court was told that the appellant was not in court during argument of the West Australian appeal, and there is no reason to believe that Miller J had ever seen the appellant or had any idea of what she looked like. Whatever else he had in mind, it cannot have been the appellant's looks. Nor should it have been. As to the appellant's age, there was nothing special about that.
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[20].
[20]eg McIntosh v Williams [1979] 2 NSWLR 543.
In the ordinary case, the contingency of a financially beneficial remarriage should be treated as part of the "vicissitudes of life". Only in special cases will a separate and substantial assessment of a remarriage discount be warranted. This was not such a case.
There was, however, a procedural reason in this case which led the trial judge to deal with the question separately, as a matter of practical necessity. Having reached the view that other general vicissitudes balanced each other out (a matter to which it will be necessary to return), and having apparently also concluded that the contingency of remarriage was not relevant to the claims of the children (a view that was open to him, and has not been challenged in this appeal), then he was obliged to deal with it separately (if he intended to make allowance for it at all) because it affected only one of the three claimants and not the other two. Given the other aspects of his reasoning, this was a proper course.
Assessing the appropriate allowance to be made for contingencies or vicissitudes is a matter of factual judgment. Until recently, in most Australian jurisdictions it would have been a matter for a jury; and the jury would have been invited to bring to bear their common sense and experience of life. When such an exercise is undertaken by a judge sitting without a jury, the reasoning involved in the assessment will be exposed more clearly to appellate scrutiny. But it remains essentially factual.
A jury's verdict would not reveal any allowance for contingencies. A judge may, or may not, decide to make a separate allowance for some particular contingency, including beneficial remarriage. There is a logical problem about an appellate court accepting that a judge may treat the possibility of beneficial remarriage as one of the vicissitudes of life, to be taken into account with other contingencies, and at the same time, declaring that a judge may not give it any weight. I have difficulty in understanding how this Court can decide that the possibility of beneficial marriage may be taken into account as one of the general vicissitudes or contingencies, and at the same time deny to a trial judge the capacity, as a matter of factual judgment in a particular case, to treat it as increasing the allowance for vicissitudes that would otherwise be made. If it ought to be left out of account altogether, that is one thing. If it may be taken into account, that is another. Once that point is reached, the question becomes one of factual judgment in the particular case.
In my view, no error has been shown in the decision of the trial judge as to the allowance to be made for the possibility of remarriage. It was reasonably open to him to conclude that five per cent was an appropriately modest allowance for the possibility of a financially beneficial remarriage. There was no sufficient justification for the Full Court to increase the five per cent to 20 per cent; and, for the same reason, there is no sufficient justification for this Court to reduce it to nil.
As to the matter of other, or general, vicissitudes the position is more complicated. All the members of the Full Court found various errors in the trial judge's assessment of damages, in relation to matters not the subject of the present appeal. On the question of general vicissitudes the majority took one approach; the reasoning of Wallwork J on the point was brief and enigmatic.
The reasoning of the majority was in conformity with the general approach taken in Western Australia and I am not persuaded that it involved any error.
Conclusion
I would allow the appeal.
I agree with the orders proposed by Gaudron, Gummow and Hayne JJ although, for the reasons given, I am of the view that the order to replace order 2 made by the Full Court of the Supreme Court of Western Australia should reflect a discount for remarriage of five per cent and a discount for general vicissitudes of five per cent.
GAUDRON, GUMMOW AND HAYNE JJ. The issue in this appeal is whether, in assessing damages to be allowed in an action brought on behalf of a surviving spouse (or de facto spouse) and children under the Fatal Accidents Act 1959 (WA) ("the Fatal Accidents Act") in respect of the wrongful death of the partner and parent, the prima facie value of what is lost should be reduced for the contingency that the surviving partner will remarry. Ordinarily, no deduction should be made on this account, 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, and in this case there should have been no deduction on this account.
The appellant, Mrs De Sales, was born in 1963; her late husband was born in 1959. They married in 1985 and there were two children of the marriage, a daughter born in 1987 and a son born in 1990. Mr De Sales was killed in 1990 in an accident in a dam upon the property of the respondent at Karnup in Western Australia.
Mrs De Sales brought an action in the District Court of that State on behalf of herself and the two children in reliance upon the Fatal Accidents Act. However, Mrs De Sales is not the executrix of the will of her husband and no action was instituted by the executor. Nevertheless, no point has been taken respecting the constitution of the action. The issue of liability was tried separately and first. It was resolved eventually when the Full Court of the Supreme Court upheld a decision of the District Court that there was an entitlement to recover two-thirds of damages to be assessed, the deceased having been one‑third to blame by way of contributory negligence.
The assessment of damages then came on for hearing in the District Court in 1999. The primary judge (H H Jackson DCJ) sat without a jury. In the course of his reasons, his Honour said:
"[I]n my view a modest reduction should be made for the chance of obtaining support from remarriage, and I deduct five per cent. The deduction should only be made from the share of award that is apportioned to [Mrs De Sales]."
An appeal and cross‑appeal were taken on various grounds to the Full Court (Wallwork, Parker and Miller JJ)[21]. One ground taken by Mrs De Sales was that the primary judge had erred in making the deduction of five per cent "in the absence of any or adequate evidence (or findings) as to [her] prospects of remarriage, remarriage rates generally or prospects of financial dependency upon remarriage". On the other hand, in the cross-appeal, the respondent contended that the primary judge had erred in making that deduction because the evidence warranted a significantly higher deduction of "(say) 25%".
[21]De Sales v Ingrilli (2000) 23 WAR 417.
In the Full Court, Wallwork J dealt with these matters as follows[22]:
"At the time of the trial the appellant was 36 years old. She had successfully re‑entered the workforce and was independently redeveloping her career. His Honour was aware of the history of the family since the deceased's death. The appellant had not set her mind against the prospect of re‑marriage. At the time of the trial the children were aged 12 and nine.
In this case, in my opinion, the learned judge was entitled to take 5 per cent from the damages for the contingency of re‑marriage. It was a minimal sum and I personally would have set it higher. That is because the appellant was relatively young and very capable with two children who would not take long to reach adulthood.
In my opinion this ground of appeal has not been made out. However neither would I interfere with his Honour's judgment as urged by the respondent."
[22](2000) 23 WAR 417 at 424.
Parker J agreed with the reasons of Miller J. Miller J differed from Wallwork J. Miller J did refer to a passage in the judgment of Burt J in Hermann v Johnston[23]. There, in the course of dealing with the question of the prospect of remarriage of a widower, Burt J had said[24]:
"In such a matter as this, and in the absence of any statistical evidence, and in the absence of any evidence bearing upon the expectations or intentions of the particular plaintiff, it may be thought that the task of assessing the chance of remarrying is beyond the reach of human judgment[25]. But such has been held not to be the case."
Miller J expressed his conclusion as follows[26]:
"Granted that it is difficult to challenge a trial judge's assessment of the prospects of remarriage or the 'revived capacity to remarry', as it is sometimes put, the fact remains that in this case the learned trial judge's deduction for that contingency was very slight. For my own part, I would think that for a woman of the appellant's age and credentials a 20 per cent deduction would be appropriate."
His Honour went on[27] to favour only "a small deduction for the general contingencies of life" and to conclude:
"I would consider a deduction for general contingencies of 5 per cent to be appropriate, with the result that in relation to the widow's entitlement, there should be an overall deduction of 25 per cent."
[23][1972] WAR 121.
[24][1972] WAR 121 at 124.
[25]See Buckley v John Allen & Ford (Oxford) Ltd [1967] 2 QB 637 at 644‑645.
[26](2000) 23 WAR 417 at 437.
[27](2000) 23 WAR 417 at 437‑438.
In this Court, Mrs De Sales contends, in the alternative, that the Full Court erred in not accepting her submission that there should not have been any discount by the trial judge for her prospect of remarriage and, if that not be accepted, the majority of the Full Court erred in increasing the figure of five per cent to 20 per cent.
Before turning to these submissions, it is convenient to begin with some consideration of the powers and scope of the relevant provisions of the Fatal Accidents Act and with the relevant antecedents, beginning with the British legislation of 1846, generally known as Lord Campbell's Act[28].
[28]9 & 10 Vict c 93.
In estimating damages under Lord Campbell's Act, a jury could not take into consideration mental suffering or loss of society and was permitted to award compensation only for "pecuniary loss". That expression did not appear in the statute. However, in delivering the judgment of the Court of Queen's Bench on a motion for a new trial in Blake v The Midland Railway Company, Coleridge J said[29]:
"The title of this Act may be some guide to its meaning: and it is 'An Act for Compensating the Families of Persons Killed;' not for solacing their wounded feelings. Reliance was placed upon the first section, which states in what cases the newly given action may be maintained although death has ensued; the argument being that the party injured, if he had recovered, would have been entitled to a solatium, and therefore so shall his representatives on his death. But it will be evident that this Act does not transfer this right of action to his representative, but gives to the representative a totally new right of action, on different principles. Sect 2 enacts that 'in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought.' The measure of damage is not the loss or suffering of the deceased, but the injury resulting from his death to his family. This language seems more appropriate to a loss of which some estimate may be made than to an indefinite sum, independent of all pecuniary estimate, to sooth the feelings; and the division of the amount strongly leads to the same conclusion: 'And the amount so recovered' ' shall be divided amongst the before mentioned parties in such shares as the jury by their verdict shall find and direct.'" (emphasis added)
That decision was followed by the Court of Exchequer in Franklin v The South Eastern Railway Company[30] and subsequently by the Supreme Court of the United States when construing a federal statute based upon Lord Campbell's Act[31].
[29](1852) 18 QB 93 at 109‑110 [118 ER 35 at 41].
[30](1858) 3 H & N 211 [157 ER 448].
[31]Michigan Central Railroad Company v Vreeland 227 US 59 at 69 (1913).
In outline, and to some extent in their specific terms, the provisions of the Fatal Accidents Act follow Lord Campbell's Act. In particular, s 4 states:
"Where the death of a person is caused by a wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued is liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under such circumstances as amount in law to a crime."
Further, sub‑ss (1), (2) and (4) of s 6 state:
"(1) (a) Every action brought under this Act shall be for the benefit of relatives of the person whose death has been caused in any manner referred to in section four of this Act.
(b) The action shall be brought by and in the name of the executor or administrator of the deceased person as the case may be.
(c) In this Act –
'relative' has the meaning given in Schedule 2 to this Act[[32]].
(2) In every action the court may give such damages as it thinks proportioned to the injury resulting from the death to the parties respectively for whom and for whose benefit the action is brought.
…
(4) The amount of damages recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the persons for whose benefit the action was brought in such shares as the court finds and directs." (emphasis added)
[32]Schedule 2 includes the spouse, de facto spouse, children and stepchildren of the deceased.
Other expressions, found in the cases, such as "contingencies" and "vicissitudes of life" also do not appear in the statute. Speaking of Lord Campbell's Act in Parker v The Commonwealth, Windeyer J observed[33]:
"As the learned authors of the last, the seventh, edition of Winfield on Tort[34] observe, 'the Act is remarkably reticent about what is recoverable and the courts have had their hands pretty full in implementing it on this point'. Their endeavours have not produced an altogether simple body of law. But the governing principles, which are now well established, may be stated in two sentences. The first is from the judgment of Pollock CB in Franklin v The South Eastern Railway Company[35] where he said that the damages 'should be calculated in reference to a reasonable expectation of pecuniary benefit, as of right or otherwise, from the continuance of the life'[36]. The other is from the speech of Lord Porter in Davies v Powell Duffryn Associated Collieries Ltd[37] where his Lordship said that the damages 'are given to compensate the recipient on a balance of gains and losses for the injury sustained by the death'[38]."
[33](1965) 112 CLR 295 at 307‑308.
[34]Jolowicz and Ellis Lewis (eds), (1963) at 133.
[35](1858) 3 H & N 211 [157 ER 448].
[36](1858) 3 H & N 211 at 214 [157 ER 448 at 449].
[37][1942] AC 601.
[38][1942] AC 601 at 623.
It was decided early in the operation of Lord Campbell's Act that the action was defeated by contributory negligence on the part of the deceased[39]. The apportionment legislation which now applies in jurisdictions including Western Australia[40] expressly applies to actions brought under the Fatal Accidents Act. Hence the apportionment of liability respecting the contributory negligence by Mr De Sales.
[39]Tucker v Chaplin (1848) 2 Car & K 730 [175 ER 305].
[40]Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA), ss 3, 4(2).
It was stressed by this Court in Carroll v Purcell[41] that the balance of gains and losses for which compensation is to be paid must be struck by reference to the gains and losses which must result from the death in question. The ability of a widow to go out to work was said in Carroll v Purcell not to be the result of a revived capacity to undertake gainful employment or a gain resulting from the death of her spouse; her ability to work "was always there"[42]. On the other hand, "[t]he death of one spouse inevitably results in a revived capacity in the other to marry"[43].
[41](1961) 107 CLR 73 at 79. See also Henry v Perry [1964] VR 174.
[42](1961) 107 CLR 73 at 79.
[43](1961) 107 CLR 73 at 79. See also Jones v Schiffmann (1971) 124 CLR 303 at 306 per Barwick CJ; Nguyen v Nguyen (1990) 169 CLR 245 at 265‑266 per Dawson, Toohey and McHugh JJ.
The cases do not readily disclose the stage at which remarriage and the potentiality thereof first was cast into the balance of gains and losses spoken of by Lord Porter in Powell Duffryn[44]. Earlier, in New Zealand[45], the probability or possibility of remarriage had been treated as too remote. In England, Stephen J had spoken of "a bare chance of receiving some very slight pecuniary help [as] really too remote [a] head of damage"[46]. In the United States, where in many jurisdictions with legislation modelled on Lord Campbell's Act evidence touching remarriage is not admitted, even where this has come to pass before trial[47], one of the grounds relied upon is that to allow such evidence would require speculation by the factfinder[48].
[44][1942] AC 601 at 623. See the authorities from various jurisdictions collected in Boberg, "Deductions From Gross Damages in Actions for Wrongful Death", (1964) 81 South African Law Journal 194 at 215‑216.
[45]Greymouth-Point Elizabeth Railway and Coal Company v McIvor (1897) 16 NZLR 258 at 265‑266.
[46]Stimpson v Wood (1888) 57 LJ QB (NS) 484 at 486.
[47]"Admissibility of Evidence of, or Propriety of Comment as to, Plaintiff Spouse's Remarriage, or Possibility Thereof, in Action for Damages for Death of Other Spouse", 88 ALR 3d 926 (1978); cf Willis v The Commonwealth (1946) 73 CLR 105.
[48]Kober, "The Case of the 'Wife After Death': Reflections on the Admissibility of Evidence of Remarriage Under the Massachusetts Wrongful Death Statute", (1980) 15 New England Law Review 227 at 231‑232.
What is apparent is that, when accepting the practice, this Court, the House of Lords and the Privy Council have emphasised that what is involved is the prospect of the receipt of material benefit, not merely the reacquisition of marital status itself, and the difficulty in evaluation of that prospect of material benefit.
In Powell Duffryn, Lord Wright spoke of[49]:
"having due regard to uncertainties, for instance, that the widow might have again married and thus ceased to be dependent, and other like matters of speculation and doubt".
Later, in the course of delivering the advice of the Privy Council in Nance v British Columbia Electric Railway Company Ltd[50], Viscount Simon had observed with respect to the assessment of damages under the relevant British Columbian legislation[51]:
"And there is a further possibility to be allowed for – though in most cases it is incapable of evaluation – namely, the possibility that, in the events which have actually happened, the widow might remarry, in circumstances which would improve her financial position."
[49][1942] AC 601 at 617.
[50][1951] AC 601.
[51][1951] AC 601 at 615.
In the judgment of this Court in Horton v Byrne[52], the statement was made:
"It is established by authority that in cases of this kind the contingency of the widow remarrying must be taken into account[53]. It is needless to say that no formula has been suggested for arriving at the deduction to be made because of that contingency. It has been left as something which should appeal to the good sense of a jury as an argument for moderation. But it is obvious that age, 'encumbrances' and personality are factors to be weighed. There are contingencies which are alienable and may accordingly be expressed without great difficulty in a money sum. But remarriage is not one of them."
[52](1956) 30 ALJ 583 at 585.
[53]See Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 at 617; Nance v British Columbia Electric Railway Company Ltd [1951] AC 601 at 615; Willis v The Commonwealth (1946) 73 CLR 105.
Thereafter, it was said in this Court in Carroll v Purcell[54] of the possibility of a widow remarrying:
"This, for what it is worth in any particular case, has so long been regarded as having some value in the assessment of damages in fatal accident cases that it is profitless to debate how far the established rule is justified."
[54](1961) 107 CLR 73 at 79.
That was said in 1961. The essence of Mrs De Sales' case is that changes since that time merit further consideration as to how far that "established rule" is to be justified in terms of principle. Society has changed markedly since Lord Campbell's Act was first enacted. The Fatal Accidents Act, unlike its predecessor, deals not only with surviving spouses but with survivors of de facto relationships. Very great changes occurred during the last half of the twentieth century in the nature and durability of family relationships, in the labour market, and in the expectations that individual members of society have for themselves and about others – economically, socially, domestically, culturally, emotionally. Even if once it were the case, no longer can a court make any assumption about the role that an individual can be expected to play in the family or in the economy. Yet it is assumptions of conformity to some unstated norm which underpin the making of a "discount for remarriage".
To assess the pecuniary loss that the death has caused the relatives, it is necessary to take account of what may have happened in the future had the death not occurred and, as well, to take account of what may happen to the relatives in the future even though the death has occurred. These predictions, about the "vicissitudes of life", are "very much a matter of speculation"[55]. It follows that the pecuniary loss that has resulted from death cannot be calculated with accuracy. The best that can be done is to assess a sum which will, as far as the limits implicit in the task will permit, represent the value of that loss, assessed at the date of judgment.
[55]Parker v The Commonwealth (1965) 112 CLR 295 at 310 per Windeyer J.
Some calculations, which will assist in assessing the value of the loss, can be made. The amount of financial benefit being provided by the deceased to the relatives, immediately before death, can be demonstrated. The present value of that stream of income, if it were to continue into the future, can be calculated (although choosing the appropriate discount rate and the length of time for which the stream is to be assumed to continue will affect the result).
How is account then to be taken of life's uncertainties? Had the deceased not died as he or she did, who is to say how long a life the deceased would have led? What would have happened? Would the deceased have continued to earn at the level being earned before death? Or would death, incapacitating illness or financial calamity (in one form or another) have intervened? If it had, would any of the survivors have then contributed to the financial well‑being of the family? Even if there were no disaster (physical, financial or other) would the financial contribution made by the surviving spouse or de facto spouse, have changed anyway? And if action is brought on behalf of a surviving spouse, or de facto spouse, can it be assumed that the relationship would have endured? Will the surviving spouse remarry after the date of judgment, or form some continuing relationship which will have some financial consequence for any of those for whose benefit the action is brought? All these, and more, are possibilities that may have to be reflected in any assessment of the present value of the economic loss suffered by all of the relatives as a result of the deceased's death, not just a surviving spouse. Because the assessment requires estimation and judgment rather than calculation, seldom, if ever, will it be right to express the result as if it were correct to the nearest dollar. That falsely asserts a degree of accuracy in the assessment that is impossible. All that can be done is to select a percentage or lump sum to allow for the estimated value of those possibilities which may or may not have eventuated if the deceased had lived and those which may or may not eventuate in the future.
Of course, in doing that, it is necessary to take due account of the fact that what is sought is a sum for damages that will represent, at the date of judgment, the present value of the benefits which would have been received over time. In assessing those damages, it would be wrong to think that reducing the period during which the benefits will be received from (say) 20 years to 15 years would reduce the amount of damages to be awarded by 25 per cent. The reduction thus effected would be much less than 25 per cent. Conversely, and confining attention to the period of future receipts, to make a deduction of (say) five per cent from the amount that is calculated as the present value of benefits to be received over 20 years is not to assume that the period of benefits that is being considered is reduced from 20 years to 19. It would assume that the benefits would cease much earlier than the end of the nineteenth year. And, of course, a deduction from the present value may reflect not only a reduction in the future period that is being taken to account, it may reflect a reduction in the amount that it is expected will be received. Fixing when that reduction occurs affects the calculation of present value. If it is assumed that the reduction will occur early in the period, the effect on present value is large. If it is assumed that it will occur late in the period, the effect is small.
I would emphasize however that statistics can only be a starting point. Statistics should only be considered in the light of the evidence in the case as to the more important, indeed probably in most cases, the critically important factors, of disposition and inclination of the surviving spouse to remarry or form a relationship, opportunity to do so, and its likely financial advantages, if any, to that survivor.
I would therefore accept only one of the appellant's contentions in relation to the first two submissions. It is important that the emphasis not be misplaced. If a court were to reduce the damages simply because of some prospects of remarriage or of another relationship, the court would be in error. What the court should have regard to is the prospect that the surviving dependant, may in the future remarry or enter into a relationship which may improve, replace, or go some way for some period, towards replacing, the financial benefits lost by reason of the death of the provider of them. It may also be that a prospect of lawful marriage might be more beneficial than of another relationship, because more substantial legal rights may sometimes arise out of the former[252]. This may not be able to be done precisely, but it should not be done arbitrarily, and it cannot be done by using some guideline as a touchstone. It has to be done however by reference to the actual circumstances, some only of which may be the personal attributes of the survivor, male or female, and especially disposition and opportunities, as assessed by the judge or jury whose task it is to assess the damages in a particular case.
[252]s 72 of the Family Law Act 1975 (Cth) confers legal rights upon spouses who are unable to support themselves. People in de facto relationships are also accorded rights, but not universally so, as against their partners, by the Property (Relationships) Act 1984 (NSW); Property Law Act 1958 (Vic) Pt 9 ("Property of De Facto Partners"); De Facto Relationships Act 1996 (SA); De Facto Relationships Act 1991 (NT).
In summary, discounting of the kind which was done here should not be abolished. Guidelines are impractical and neither can nor should be introduced. The emphasis should be upon what a new relationship, if any, is likely to produce, in financial benefit. The survivor's disposition to remarry, and opportunity to do so are very important factors.
The discount should, if it is to be made, be made separately and specifically, and not as part of a general discount for contingencies. I say this for two reasons. If it is identified it will be examinable on appeal. Courts should strive to produce examinable, transparent judgments. Indeed there may be a strong case for the expression of a percentage for each factor that a judge regards as a discounting one whenever that is possible. The second reason is that, although each case is unique, as happens with assessments of damages for pain and suffering, a pattern tends to emerge from a number of judgments to provide a basis for future judicial assessments, and, in turn, settlements[253].
[253]cf Kember v Thackrah [2000] WASCA 198 in which a pattern of discounts for contingencies of between 2 per cent to 6 per cent in Western Australia was identified.
Should the Full Court have interfered here? I would myself have been inclined to think a discount of 5 per cent too little. It hardly seems likely that in the decades after the appellant's husband's death she would not enter into a relationship or relationships that would give her only 5 per cent of what the deceased would have given her had he lived, that is of approximately $30,000 in present value. But the assessment was one peculiarly for the trial judge. The Full Court neither saw nor heard her give evidence. A perusal of the record provides an incomplete basis for assessing whether the appellant had a disposition towards forming a financially supportive relationship, and was the kind of person who would have an opportunity of doing so. There is no suggestion that the primary judge failed to take into account any relevant factors or took into account irrelevant ones. Accordingly the Full Court should not have substituted the discount under this head that it did. However the matter should be remitted to the Full Court for further consideration in the light of the reasons of this Court for judgment as it is not clear how, if at all, the restoration of a discount of 5 per cent only, might affect the allowance for contingencies and the assessment generally.
I would allow the appeal with costs and order that the matter be remitted to the Full Court for further consideration.