Craw v Sunstate Shopfitters Pty Ltd & Anor [1992] QSC 294

\ ) L/ TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Cowts, George Street, BRJSBANE. 0. 4000 Tel. (07) 227.4360 (Copyright in this transcript is vested in the Cro-wn. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION .. THOMAS J No 1741 of 1989 KATRINA MARIA CRAW and SUNSTATE SHOPFITTERS PTY LTD and SOMER & STAFF CONSTRUCTIONS PTY LIMITED BRISBANE .. DATE 28/07/92 .. JUDGMENT ·.... :· 1 REVISED COPIES ISSUED St~ta R~pcrting ·BurEau Dsle3f I· .- .. :i~ . • __ •• c Plaintiff First Defendant Second Defendant· -- 1 of 10 -- 4'~ ...... I 280792 JUDGMENT HIS HONOUR: After taking into account the amount that has to be deducted in favour of the Workers' Compensation Board, the judgment in substance will be in favour of Michelle for $15,000 and in favour of Katrina Maria Craw for $77,952.95. 10 I publish my reasons. It seems to me the appropriate order for costs will be that the defendants should pay the plaintiff's costs of the action to be taxed on the Supreme Court scale up to and including 2 August 1991 and thereafter on the scale of costs in the District Court applicable to actions where judgment exceeds 0 $50,000. 30 0 40 0 50 60 2 JUDGMENT -- 2 of 10 -- ('-- / IN THE SUPREME COURT OF QUEENSLAND No. 1741 of 1989 BETWEEN: KATRINA MARIA CRAW Plaintiff AND: SUNSTATE SHOPFITTERS PTY. LTD. First Defendant SOMER & STAFF CONSTRUCTIONS PTY. LTD. Second Defendant REASONS FOR JUDGMENT - THOMAS J. Delivered the Twenty-seventh day of July, 1992 CATCHWORDS: Counsel: Solicitors: Damages dependency claim prospects of substitute support and contingencies - quantum. W.T. McMillan for the plaintiff C. Egan for the defendants Paul Richards & Associates for the plaintiff W.H. Tutt & Quinlan for the defendants Hearing Date: 23rd July, 1992 I -- 3 of 10 -- ( ( i \, IN THE SUPREME COURT OF QUEENSLAND No. 1741 of 1989 BETWEEN: KATRINA MARIA CRAW Plaintiff AND: SUNSTATE SHOPFITTERS PTY. LTD. First Defendant SOMER & STAFF CONSTRUCTIONS PTY. LTD. Second Defendant REASONS FOR JUDGMENT - THOMAS J. Delivered the Twenty-seventh day of July, 1992 This is a dependency claim on behalf of the widow and stepdaughter of Geoffrey Thomas Craw who died on 18th August, 1987. Liability has been agreed and it is my task to assess damages. The deceased (to whom I shall refer as "Geoffrey") was born on 22nd May, 1952. The plaintiff, whom he married in January 1984 was his junior by three years and four months. At the time of the fatal accident he was thirty-five and she was thirty-one. The plaintiff's daughter Michelle who was born in December 1973 was thirteen years old at that time. There were no children of the marriage which preceded the accident by only three and a half years. It was apparently a good stable marriage and there was a good relationship between Geoffrey and Michelle. -- 4 of 10 -- 2 Geoffrey was registered with his union as a carpenter and joiner and from time to time worked in steel or aluminium fabrication. He did however suffer periods of unemployment, one of which lasted for approximately twelve months. In the result his earning capacity during the marriage averaged only $220 net per week. His net wage today, in the field in which he generally worked, assuming he were employed, would be $406 per week. During the marriage Mrs. Craw from time to time showed a willingness to supplement the family income, although I think she preferred a domestic role. She had previously worked in various capacities, and as there were no further children it is probable that she would have continued to do part-time cleaning work or engage in other activity to supplement the family income, particularly when the vicissitudes of the building industry meant that Geoffrey was not earning. In the event she has made a number of attempts since Geoffrey' s death directed towards earning income although without great success. The extent to which she would have contributed to the joint earnings will of course reduce the dependency figure. In the present case I would rate her likely contribution to the joint income as less than substantial, and would regard Geoffrey as the primary bread winner. However the prospect of her earning from time to time has to be taken into account. The assessment in the present case has been facilitated by the agreement of the parties reached during the hearing to the effect that the total loss of dependency (of both claimants) between death and the trial is $40,162.65. It is also agreed that Michelle's dependency ceased in April 1990 and that she is 0 CJ 0 0 -- 5 of 10 -- 3 now employed at a pharmacy. The remaining task is to apportion that loss between the claimants and to assess Mrs. Craw's loss of dependency from today's date forward. Geoffrey was a hard worker and it is probable that he would have taken employment when it was available. His support was worth more than mere wages, as he was a handy man who contributed to the building of the matrimonial home. Mrs. Craw now owns this property which is worth about $150,000, but there is no ( suggestion of accelerated benefit in the present case. The value of his future support should take into account his ability to perform maintenance and perhaps to undertake capital improvements in whatever dwelling the parties may have occupied. This factor tends to offset to some extent the diminution necessary for the prospect of unemployment although it does so only in part. ( The other major factor in this case involves assessment of Mrs. Craw's prospects of remarriage, or of receiving substitute support from some other source. She is an attractive thirty-six year old woman and she has had an intimate relationship with a male friend for the past sixteen months. It is primarily a \__. weekend relationship and Mrs. Craw says she likes the arrangement the way it is. It is impossible to tell whether this particular relationship will blossom into greater commitment, but I think it quite probable, particularly in the longer term, that she will enter a relationship with a man ready, willing and able to contribute to her support. She has not been left in a disadvantageous situation and is not encumbered by children. It would be unrealistic to think that she will not at some stage derive some substitute financial support from another source. -- 6 of 10 -- 4 The main factors then which call for discounting of the multiplier period or of the dependency figure are the extent to which Mrs. Craw would have contributed to joint earnings, the amount which should be deducted for the husband's own needs and the prospect of substitute support. The exercise involves a number of competing discretions, and mathematical accuracy is impossible. However one must endeavour to see what result follows from the application of particular criteria. I have performed a number of calculations based upon varying criteria and will set out one of them as a specimen only. One can only hope in an exercise of this kind that the errors tend to cancel out. Weekly earnings if fully employed Less 25% for unemployment Add $40 per week for value as handyman Assume weekly earnings of $60 contributed by plaintiff Total of joint earnings Deceased therefore contributed 85% of the joint earnings Allow 60% of joint earnings as attributable $406.00 $305.00 $345.00 $405.00 to support of plaintiff $243.00 Of this deceased would provide 85% $207.00 This is prima facie the dependency figure. Project this for 20 years (to age 60 for deceased) on 3% actuarial tables $163,116.00 Reduce by one-third for prospect of substitute support $108,744.00 Other exercises have produced lower and higher results. In the end I think a fair assessment for future loss is $110,000.00. The apportionment of the pretrial loss must proceed on the basis () 0 0 0 -- 7 of 10 -- ( 5 that support would have been provided for Michelle for three years between aged thirteen and sixteen. $15,000.00 seems a reasonable apportionment of the agreed sum for pretrial loss of dependency. In the result there would be judgment for the plaintiff for $150,162.65, of which $15,000.00 is payable to Michelle and the balance payable to the plaintiff, Katrina Maria Craw. As Michelle is now an adult the judgment should order payment of $15,000.00 to Michelle, assuming she adopts the action, and the balance of $135,162.65 to the plaintiff. However the plaintiff has already received payment of $57,209.70 from the Workers Compensation Board, and these payments must be deducted from the judgment. I shall hear submissions on the form of order, but in substance there will be judgment for Katrina Maria Craw for $77,952.95 and for Michelle for $15,000. -- 8 of 10 -- I , ;.---·,_ ORDER Paul Richards & Associates Solicitors 231 George Str, BRISBANE QLD 4000PH: 229 8044 IN THE SUPREME COURT OF QUEENSLAND No. 1741 of 1989 BETWEEN: KJ>TRINA MARIA CRAW Plaintiff SUNSTATE SHOPFITTERS PTY. LTD. First Defendant SOMMER & STAFF PTY. LIMITED Second Defendant BEFORE THE HONOURABLE MR. JUSTICE THOMAS THE TW~NTY-EIGHT DAY OF JULY 1992 UPON HEARING ~1r. McMillan of Counsel for the Plaintiff and Mr. Egan of Counsel for the Defendants. I DO ORDER:- 1. That Judge.ment in this action be entered in favour of the Plaintiff for the sum of NINETY TWO THOUSAND NINE HUNDRED AND FIFTY TWO DOLLARS NINETY FIVE CENTS ($92,952:95). 2. That the Defendants pay to the solicitors for the Plaintiff, Messrs. Paul Richards & Associates the judgment sum of NINETY TWO THOUSAND NINE HUNDRED AND FIFTY TWO DOLLARS NINETY FIVE CENTS ($92,952:95). 3. That of the said sum of NINETY TWO THOUSAND NINE HUNDRED AND FIFTY TWO DOLLARS NINETY FIVE CENTS ($92,952:95) the Plaintiff's Solicitors hold on -- 9 of 10 -- ''~ 2 trust for MICHELLE LISA DAVEY the sum of FIFTEEN THOUSAND DOLLARS ($15,000:00), such sum to be paid to the said Michelle Lisa Davey upon demand by her. 4. That the Defendants pay to the Plaintiff's costs of and incidental to the action to be taxed on the Supreme Court scale of costs until the 2nd day of August 1991 and thereafter on the District Court Scale of Costs appropriate for actions where the judgment sum obtained exceeds the sum of FIFTY THOUSAND DOLLARS ($50,000:00). Associate -- 10 of 10 --