Duncan v Cubit [1990] QSC 207

10 IN THE SUPREME COURT OF UEENSLAND CIVIL JURISDICTION No. 118 of 1989 BEFORE MR. JUSTICE CONNOLLY CAIRNS, 7 JUNE 1990 I pc\'I'- -t:-[' r''lp•r:-l"' i"SI 'E"i i l ~ ._ ..- ._; .. ' _, \_,' I• .... ' J '-.) ,_; .. J ! '· I c,..,, .. , :-:>,::~r-"r,~ Du">ct-u I ! • -''· , • , ,\i:"•:J ... ,1 ... I.,:; L 1 .__, ; i ! ~~=!l~'...6. 1 1Q :I (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: CHRISTINE MARY DUNCAN -and- JEAN FRANCES CUBIT JUDGMENT Plaintiff Defendant HIS HONOUR: In this case there will be judgment !for the plaintiff for $188,292 for her own benefit and ! 30 I i$55,000 for the benefit of her daughter Rebekah Louise 1Elliot Duncan, which sum I order to be held by a trustee in ! ! !Australia or in the United Kingdom for the said child until i lshe attains the age of 18 years, with power to advance both !capital and income for her proper maintenance and support I 40 I :(including the acquisition of an interest in land). I order ithat the defendant pay the costs of the action to be taxed. ' :I give liberty to apply. I publish my reasons. so I 60 I------------1 --- ·------------- ··-·---------·-- ·-·--·-·-·- -----·-· -----·------' G·)vt. Printer, Old ' 1 1U (-' __ -l -- 1 of 6 -- I , ~ (Issued subject to correction upon revision.) 10 20 IN THE SUPREME COURT OF UEgNSLAND CIVIL JURlSDICT..ION No. 118 Of 1989 BEFORE MR. JUSTICE CONNOLLY ~AIRNS, 7 JUN& 1990 (Copyright in this transcript is vested in the Crown. copies thereof must not be made or sold without the written authority of the Chief Court Rep?rter,Court Reporting Bureau.) 'BETWEEN; CHRISTINE MARY DUNCAN -and- JEAN FRANCES CUBIT JUDGMENT Plaintiff Defendant HIS HONOUR~ The plaintiff is the widow of William 30 George Duncan who died in a motor vehicle collision on 16 ~overnber 1988, for which the defendant accepts full liability. The plaintiff brings these proceedings for her own benefit and that of Rebekah Louise Elliot Duncan, the sole child of the marriage, who was born on 21 June 1987. 4 0 The plaintiff herself was born on 10 January 1963 and she is competent to bring this action, there being no personal representative of the deceased. 50 ____ 60 The deceased was born on 17 November 1961. The plaintiff and the deceased had been married since 26 April 1987 and Rebekah was about 18 months old at the time of his death. The plaintiff was then aged 25 and they were working at the Sheraton Mirage hotel where the deceased was a security officer and the plaintiff had work four days a week at the creche associated with the hotel. Because the ~--·· --···Govt. P1lnter, QIO 1 10 20 30 '10 50 -- 2 of 6 -- I I 10 20 parties shared responsibility for the care of their infant daughter, it was possible for the plaintiff also to do part-time night duties as a nurse at the Cairns Base Hospital, for which she received $90 per week after tax. It is accepted that the deceased earned $395 per week after tax and that husband and wife were pooling the income which each of them derived. They had proposed to buy a house in the Cairns area and had made.application in this behalf. The sole question before the court is to determine the damages ' .. recoverable by mother and daughter for the loss of support of the deceased. So far as economic loss is concerned, the parties seem to be agreed that the deceased would have applied a figure of the order of 68 or 70 per.cent of his earnings towards his wife and child. Eighty weeks, have elapsed, and on lO 20 30 30 Mr. Darvall 1 s percentage of 68 per cent this would amount to $21,448. In addition, the plaintiff has lost the $90 per week which her husband made it possible for her to earn by taking care of the child and freeing the plaintiff to work at hours when she would otherwise have been tied to the 40 40 house by the need to care for her child. It is, I think, a sum which she is entitled to recover. Her loss includes loss of the service provided in this respect by the deceased, without which she would have been unable to earn that sum, and the pecuniary value of the loss in this 50 respect is, I think, the lost income of the wife. This would accord with the judgment of the majority in Van Nguyen v. Van Nguyen (1990), 64 A.L.J.R. 222. This sum over . \ 80 weeks amounts to $7,200. The total for past economic __ , ___ .§g_loss is thus $28,64~-*---~ ... ?.? not think it apf?_:~P:_:'-ate to Go-1. P,lnior. Qld. 2 50 -- 3 of 6 -- FROt1 CN.K.JLIQ:R I CT COURT . (·MON) 10,·22,190 15:33 N0,2084068367' PAE 4.. '· JO apportion this sum between mother and daughter as the support of the C~ild has obviotlsl-y:-been supp.lied wholly by the mother up to trial, There is a claim for interest under the Common Law Practice Act and I allow interest of 12 per cent for half the period on the footing that the loss accrued progressively over the 80 weeks, a sum of $2,644. ,so far as future economic loss is concerned, the problem is, as usual, complicated. There were various approaches to the assessment of the.damages. I take the 20 30 situation of Rebekah first. Mr. McCreanor contended for an overall figure of $70 per week until Rebekah at~ains the age of 18. I think that, with respect, Mr. Darvall's approach is to be preferred. He suggested $70 per week until she reaches the age of six which would be three years, $80 for 10 20 30 the next seven years until she reaches the age of 13, and $100 a week for the five years which will elapse therefore until she reaches the age of 18. on the 3 per cent tables this would aggregate to $61,200. I reduce it for obvious contingencies to $55,000. ~o 40 So far as the plaintiff is concerned, Mr. Darvall suggested a figure of $200 per week for the future, and on the 3 per cent tables such a sum would discount over various periods to $238,000 over 38 years, that is to say until the 50 plaintiff attains the age of 65; $207,000 over 30 years (until she attains the age of 57} ~ and $184,000 over 25 years, that is to age 52. The evidence establishes that the take home po.y of tho deceiiliHid would, by thP timA nf t.ri.al, have been of the order of $440, so that the sums contended GO>'I, Prinlilr, Oki. 3 '- ...... -.. ·-···-·--: , .,1 ,' so -- 4 of 6 -- .. ·"\ take-home pay which may fairly be regarded as available for the support of his wife and children. - Two factors in particular are relevant in assessing the loss the plaintiff has sustained. The first is Rebekah's need for her mother's care until she becomes an adult. This 10 10 20 ill severely restrict the exteGt to which the plaintiff, who is a trained nurse, w_ill be able to work, whether as a nurse or in some other suitable occupation. She has returned to England where she was born and where her parents live. She is, understandably, not ~n employment. Obviously, she will resume her employment when the child is older, but she will then be faced with the cost of child care. I do not think, however, that her ability to earn an income has any real bearing on the extent of her loss of her husband's support. 30 This is because they always intended -10 so that both should work to improve their situation in life. It follows that the plaintiff ·cannot mitigate her loss by her own efforts. The other factor to which regard must be had is her prospects of remarriage. Understandably, she does not at present contemplate marriage and would seem to be living a somewhat withdrawn life, devoting herself to Rebekah. However, she is an intelligent, well-trained and personable young woman and I do not think that her present feelings and situation will continue for the rest of her life. On the other hand, it would not be right to make assumptions in relief of the defendant which would see her remarry in the short term. Mr. McCreanor's approach was that r should award the ___ 6 9- ... ~resent value __ ?f ___ ~~50 per week for -~5--~~~rs --~~~2_!: 000) GOVI Prtnlor. Qld. 4 20 30 ~o 60 -- 5 of 6 -- 10 20 30 40 50 60 discounted for all contingencies by 50 per cent, the resultant sum being apportioned between the plaintiff and the child. The result would, however, do less than justice to the plaintiff, particularly if Rebekah's needs are met, as would be likely, in priority to her own. On the balance, I prefer Mr. Darvall's approach. However, even the lowest .of his suggested periods, 25 years 1 seems to be rather on the long side, the figure of $200, " hen.added to the figures on which I have based the child's award, not representing any significant discounting for contingencies. I propose to allow $200 for 20 years, which on the 3 per cent tables results in a figure of just under $157,000. It is not suggested that anything falls to be set off against this sum. There will be judgment for the plaintiff for $188,292 for her own benefit and $55,000 for the benefit of her daughter Rebekah Louise Elliot Duncan, which sum I order to be held by a trustee in Australia or the United Kingdom for the said child until she attains the age of 18 years, with power to advance both capital and income for her proper aintenance and support (including the acquisition of an interest in land). The defendant must pay the costs of the action to be taxed. There will 'be liberty to apply. 10 20 30 40 ... _ ·---·-···~-·-- -- ·-- •.•. ., .. _____ _, __ . ________ ·--•----------,·-··"··- .. ·-······ ·- 60 Govl. Printer, Q1g. 5 • "1• • I ' -- 6 of 6 --