Dillon v Nominal Defendant & Ors [2005] QSC 232

State Reporting Bureau ]2CC6) QSC £33 Queensland Government Department of Justice and Attorney-General rvi Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J REVISED COPIES ISSUED State Reporting Bureau Date: 3 August, 2005 Claim No 570 of 2003 PAULINE MARGARET DILLON Plaintiff and JAHLEEL HLIWA GILL BY HER LITIGATION Second Plaintiff GUARDIAN PAULINE MARGARET DILLON and SASKIA INGRID GILL BY HER LITIGATION Third Plaintiff GUARDIAN PAULINE MARGARET DILLON and NOMINAL DEFENDANT and JOHN JOSEPH MARANO and FAI ALLIANZ LIMITED (ACN 094 802 525) First Defendant Second Defendant Third Defendant CAIRNS .. DATE 02/08/2005 JUDGMENT EARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal affence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for ■heir protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those :ategories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 lh Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 5 -- HIS HONOUR: This is the matter of Dillon and Nominal Defendant. The applicants Jahleel Hliwa Gill and Saskia Ingrid Gill were, at the relevant time, the dependent children of Damien David Gill who died on the 2nd of December 2000. Each of the applicants claim loss of dependency consequent upon his death and now seek the sanction of the settlement of claims for damages for loss of dependency made on their behalf. The applicants, both of whom were infants, were born respectively on the 17th of June 1992 and the 27th of October 1999, and were thus five years and one year respectively at the date of death of their father. The claim by the applicants was joined to a claim by their mother, Pauline Dillon, who was also dependent upon the earnings of the deceased. The circumstances in which Mr Gill died cannot be established with any certainty. On the night in question he was found in an injured state in a laneway near to his home in Mossman, Queensland. His injuries were consistent with his having been run over by a motor vehicle, which was never identified, but his position on the roadway could never be established. It seems that the injuries were caused by a low impact collision. Consequently, one can only speculate at the circumstances which led to these injuries. What has been established with precision is that the deceased had consumed a considerable quantity of alcohol. Post-mortem testing showed he had a blood alcohol percentage of 0.289 per 02082005 T17/LET M/T CNS2/2005 (Jones J) 1 10 20 30 40 50 2 JUDGMENT 60 -- 2 of 5 -- 1 02082005 T17/LET M/T CNS2/2005 (Jones J) cent. So, there were various suggestions that were put forward as might be potential findings of a Court if the matter went to trial. One of these was that the deceased was lying on the carriageway before being run over. The second was that he might have been standing before being knocked or pushed to the ground by an unidentified vehicle. Different scenarios, of course, would result in different levels of contributory negligence being found against him. In all the circumstances the potential for a substantial finding of contributory negligence against the deceased was quite high. The ultimate settlement reflects an allowance of approximately 50 per cent on this account. I have had the benefit of reading a detailed opinion by Mr Glen of counsel which refers in detail to the evidence and to the relevant authorities, and this leads me to conclude that the allowance made is well within the appropriate range. The deceased was 36 years of age at the time of his death. He was a preschool teacher of some years standing and was intending to continue in that occupation. At the date of his death his net weekly income was $845. This rate of remuneration for a person in his position has increased in the intervening years and, as well, the deceased had some prospects for promotion. Mr Glen of counsel, in an extensive opinion, has analysed the likely household income for the past period and for the future, the expenses of the household, and the likely funds to 10 20 30 40 50 3 JUDGMENT 60 -- 3 of 5 -- be attributed to the needs of the applicants and their mother for these past and future periods. The opinion takes account of the relevant variables in an assessment of this kind and has led the author to an assessment of approximately $600,000. That allowance is well within the appropriate range which might have been arrived at upon a contested hearing. The settlement amount for all claimants of $295,000 is appropriate in the circumstances. The apportionment of 23 per cent of that amount to Jahleel and 30 per cent to Saskia is appropriate to their entitlements, and I accordingly sanction the settlement arrived on their behalves. It is proposed that the funds ordered to the infants be invested in a trust fund to be held by the Trust Company of Australia Limited. Details of the expenses associated with the institution and maintenance of that trust fund have been detailed and these will be borne additionally by the defendants . In all those circumstances I am prepared to sanction the settlement, and I will make orders in terms of the draft initialled by me and placed with the papers. 02082005 T17/LET M/T CNS2/2005 (Jones J) 1 10 20 30 40 50 4 JUDGMENT 60 -- 4 of 5 -- 02082005 T17/LET M/T CNS2/2005 (Jones J) HIS HONOUR: In addition to the written orders which I have 1 initialled and placed with the papers I order that the three opinions of Mr Glen of counsel be placed in a envelope to be sealed and marked "Not to be opened except with the leave of the Court." 20 30 40 50 5 JUDGMENT 60 -- 5 of 5 --