Elford v FAI Insurance Ltd & Ors [1991] QSC 143

10 10 ! 30 40 50 60 ' Coui-t ,r:>,:"nr-d:•,·in r:,:r···.:,·, : ..,,;i"'.._,, ..:.. • ..-1,,,i, -'~-' IN THE SUPREME COURT OF ·i ~~~::_~.t · to ~-!fL~J QUEENSLAND .. · CHAMBERS No. 1491 of 1985 ;BEFORE SENIOR MASTER HORTON, Q.C. BRISBANE, 31 MAY 1991 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of theChief Court Reporter,Court Reporting Bureau.) BETWEEN: LOYOLA KATHLEEN ELFORD -and- F.A.I. INSURANCE LIMITED -and- McDONALD, WAGNER AND PRIDDLE PTY. LTD. -and- Plaintiff Defendant First Third Party THE NOMINAL DEFENDANT (QUEENSLAND) Second Third Party -and- JOHN HOLLAND-CHRISTIANI and NEILSON JOINT VENTURE (a firm) JUDGMENT Fourth Party SENI0RMASTE:R: Judgment for the plaintiff against the defendant in the sum of $992,669 together with costs of and incidental to the action to be taxed, including reserved costs, if any, to be taxed. I certify for the engagement of two counsel. I give liberty to apply with respect to arithmetical -Govt. Printer, Qld. 1 10 20 30 40 50 60 -- 1 of 26 -- errors. I publish my reasons. 10 10 20 20 30 30 40 40 50 50 60 60 -Govt. Printer, Qld. 2 -- 2 of 26 -- IN THE SUPREME COURT OF QUEENSLAND NO. 1491 OF 1985 BETWEEN: LOYOLA KATHLEEN ELFORD Plaintiff AND: F.A.I. INSURANCE LIMITED Defendant McDONALD, WAGNER AND FRIDDLE PTY. LTD. First Third Party AND: THE NOMINAL DEFENDANT (QUEENSLAND) Second Third Party AND: JOHN HOLLAND-CHRISTIANI and NEILSON JOINT VENTURE (a firm) Fourth Party REASONS FOR JUDGMENT - SENIOR MASTER HORTON Q.C. Delivered the Thirty-first day of May, 1991 Robert Glen Elford died on the fifth day of September, 1983 when the Toyota Hiace motor vehicle in which he was travelling as a passenger left the road surface on the concrete jetty at the Dalrymple Bay coal terminal facility some 1 .3 kilometres from shore and plunged into the sea. Judgment has been entered in favour of the plaintiff, the lawful widow of Robert Glen Elford as executrix of his estate and on behalf of herself and her three children, James Gregory -- 3 of 26 -- Elford born on 14th March, 1978, Luke Patrick Elford born on 3rd September, 1980 and Rebecca Gillian Elford born on 3rd January, 1984 pursuant to the provisions of the Common Law Practice Act (ss. 12 and 15d). Probate of the deceased's will was granted to the plaintiff on 7th May, 1985. The deceased was born on the sixth day of June, 1956 and hence, was some 27 years of age at the time of his death. He was a qualified engineer employed by John Holland (Constructions) Pty. Ltd. in that capacity and had been so employed since January 1978 when he graduated from the University of Queensland as a Bachelor of Civil Engineering with Second Class Division A Honours. His projected professional career was in fact the only substantial issue in dispute at trial and hence, it is necessary for me, in some detail, to trace his professional career up to the date of death as well as make some assessment of his projected career path. He had been educated at after matriculation, at the private _Catholic University of schools and Queensland. Professor Colin James Apelt was called and gave evidence at trial. He is presently the head of the Department of Civil Engineering at the University of Queensland and has been the head of that department since 1982. I infer from this evidence, that Professor Apelt was a member of the teaching staff of the University Department prior to his appointment as its head in 1982. Professor Apel t has a recollection of the deceased and describes him, as the holder of a 2A Honours degree, as a person- -- 4 of 26 -- l. (a) who would have done more work than the average class student; and ( b) whose performance placed him in the upper group of student performance. Such graduates are regarded as suitable immediately for entering into post-graduate studies if they so desire, as persons who would have no difficulty whatever in gaining employment usually with a range of options open to them, ultimately reaching senior levels in their profession. Upon graduation he applied for two positions and John Holland (Constructions) offered him a job in construction. This apparently involved travel throughout Queensland to construction sites and it was the mutual decision of both the plaintiff and the deceased that as the plaintiff was prepared to travel with her husband and the deceased himself preferred the construction career path, -the Holland offer was accepted. He commenced working at the Wivenhoe Dam project and then he was transferred by John Holland to Mackay working on the Mackay Harbour railway project. After this project ·was completed, he was transferred to Cairns where he worked on the Naval Base project. Ultimately, he was transferred back to Mackay to work on the Dalrymple Bay project where he worked up until the time he met his death. This was the couple's second period of service in Mackay and as Mackay seemed to be somewhat the centre of major construction work, a decision was made to purchase a home in -- 5 of 26 -- that town which could be rented out when the deceased was transferred to other construction sites in the future. He commenced employment as a project engineer which appears, within the construction stream, to be the junior position for a qualified engineer. It was in this position at this level that he was serving at the time he met his death, but I accept the evidence of one Robert John Douglass, the former Queensland Branch Manager of John Holland {Constructions) that the plaintiff, had he not met his death, would have been kept on the staff of John Holland (Constructions) after completion of the Dalrymple Bay project and a position as a project engineer on a smaller job with a strong foreman allocated to him by the company · as his next posting. There was before me at the trial a plethora of evidence from those engineers employed and formerly employed by John Holland (Constructions) Pty. Ltd. deposing to the deceased' s ability and application as an engineer. All spoke of him in glowing terms and indeed Mr. Douglass who was Queensland Manager had this to say:~ "It '.s my belief that he had the ability to certainly eventually become a State Manager if the opportunity arose. That was what he wished to do. I don't think he was lacking in any of the skills we required to do that." Mr. Barton, who is presently the State Manager Civil Division of John Holland (Constructions) had been the project manager on the Dalrymple Bay coal loading facility and had known the deceased since he commenced his employment with John Holland in 1978. He was of the view that he had had a reasonable opportunity to assess the deceased's qualities as an engineer -- 6 of 26 -- .5. and rated him very highly for his age, speaking of him as being well above what was expected. He spoke in glowing terms of his academic qualifications and he, like Mr. Douglass, saw him as being capable of going up to State Manager and beyond in the fullness of time. This assessment in Mr. Barton's case involved considerations of factors other than his capacity as a straight technical engineer and involved an assessment of his capacity as a manager as well as his technical skills. Mr. Barton's career path was one of almost exclusive employment with John Holland (Constructions) since graduation. At the time of his appointment at 38 years of age as project manager to the Dalrymple Bay coal loading facility, he had served as a project manager on a number of other civil construction jobs, project which he although none as big as the Dalrymple Bay described as one of the largest civil engineering projects ever carried out in Queensland. This was a position as a senior project manager of which there are presently three in Queensland with only one Construction Manager over them before reaching his present position of State Manager Civil Division. Under the senior project managers are some four or five ordinary project managers. Below that position there are project engineers which apparently was the position occupied by the deceased at the time of his death. Gary James Whyte, an engineer was also called by the plaintiff and gave evidence before me. He is presently the Managing Director of Seymour Whyte Constructions Pty. Ltd., an -- 7 of 26 -- _§_ engineering firm that principally deals with civil work but occasionally carrying out building work. Prior to his going into business on his own some three and a half years ago he had been employed by John Holland (Constructions) for 1 4 years and before that with Leighton Contractors for a further 14 years. At the time he left John Holland's employ he was employed as a project manager and had been so employed for approximately ten years. He knew the deceased, the deceased having worked under his immediate supervision on the Cairns Naval Base project. His assessment of the deceased was that he was a very good engineer, academically "very good" - a person to whom it was easy to delegate, with potentially good management skills. Mr. Whyte in his present business activity had recently employed a project engineer aged 32 years with eight years experience behind him. His "salary package" was consistent of -remuneration to approximately $48,500 per annum together with petrol for a motor car and superannuation. Overall therefore, the assessment of the deceased as a project engineer by those who had worked with him at John Holland (Constructions) was that he was indeed a young engineer of the highest calibre and application, and a man with a particularly rosy future ahead of him in his career. It is also important in my view to note that Mr. Douglass as a former Queensland director of John Holland said that such were the deceased's capabilities and promise that, notwithstanding the completion of the Dalrymple Bay project and the subsequent downturn in the building industry, the -- 8 of 26 -- 1 deceased would have formed part of a core of employees whom the employer would have retained. from the evidence of Mr. Barton and Mr. Whyte professional It is clear that such a group does exist. I am satisfied that the deceased would have been one of such group, retaining his employment notwithstanding the present marked downturn in the building industry. Neville Graham Patterson, a consultant was called by the plaintiff. personnel management He is the director of a company which special_ises in recruitment within the building, engineering and construction industries and has had a number of years experience in this activity. He had prepared a report dealing with salaries and benefits for engineers, in the construction industry at the various levels at which John Holland (Constructions) Pty. Ltd. employed engineers and through which I am satisfied the deceased would have progressed were it not for his early death. The project engineer 1evel at which the deceased was employed at the time of his death, provided for Brisbane salaries of $27,668 in 1983, $31,000 in 1984, $34,000 in 1985, $37,500 in 1986 and $40,000 in 1987. In addition to these salaries the project engineer is supplied with a company vehicle for use at site, a bonus sharing scheme generally returning some $3,000 to $5,000 per annum, superannuation and site allowances. A project engineer, which position I am satisfied the deceased would have achieved in 1988, carried a Brisbane salary of $40,000 to $45,000 per year, in 1989 a Brisbane -- 9 of 26 -- Ji salary of $45,000 to $50,000 per year and in 1990 a Brisbane salary of $45,000 to $55,000 per year. In addition to these salaries, a company vehicle would be supplied for work and for private use but this vehicle would be on site during working hours. In addition to this benefit would be superannuation, private telephone, bonus sharing scheme returning some $3,000 to $8,000 per annum together with site allowances. I pause at this stage to remark that the prognosis by Mr~ Patterson that the defendant would have achieved the position of project manager in January 1988 is somewhat less optimistic than that of Mr. Douglass who in evidence indicated that it was his intention, had it not been for the deceased's death, to find him a small project with a strong site foreman on the completion of the Hay Point job. Nevertheless it appears from argument by the plaintiff's counsel that the scenario foreshadowed by Mr. Patterson is the one contended for and I am prepared to act upon Mr. Patterson I s scenario being a more conservative one than the one ~ndicated by Mr. Douglass. The position of construction manager is the next up in the John Holland hierarchy and this position in 1990 carried a Brisbane salary of $80,000 to $90,000 per year with similar benefits to those enjoyed by a project manager save and except that the bonus level for a construction ~anager ranges from $5,000 to $15,000 per annum. The highest level within John Holland is State Manager and this has a salary range of $90,000 to $110,000 per annum with similar benefits to those of a construction manager. -- 10 of 26 -- In addition to the benefits listed above, there may be further benefits associated with remote location and the fact that at the lower levels, an engineer would work a six day week or alternatively a five day week of 48 hours per week. I am satisfied that as of May 1991 the deceased, had it not been for his death, would have continued with John Holland (Constructions) Pty. Ltd. achieving the position of project manager in approximately 1988 earning a· salary and benefits roughly in accordance with those set out in the report of Mr. Patterson, but particularised by reference to Mr. Elford's actual earning rate at the date of death, namely a gross salary of $26,350 plus $7,753 site allowance and a bonus of $4,949 for the year ending 30th June, 1983. The report of Norbert Calabro, who was called as a witness at the assessment was admitted over the objection of Counsel for the defendant. I allowed the report and evidence simply on the basis that i~ did that which I was not able or inclined to do, namely convert gross annual salary and benefit into net benefits. It was on that basis and that basis alone that the material was placed before me and it is on that basis alone that I act on that material. Mr. Calabro calculated the net loss of benefits to the deceased between death and the 20th August, 1990 as follows:- 5th September, 1983 to 30th June, 1984 $24,012 1st July, 1984 to 30th June, 1985 1st July, 1985 to 30th June, 1986 1st July, 1986 to 30th June, 1987 $31,200 $32,422 $34,268 -- 11 of 26 -- 1Q 1st July, 1987 to 30th June, 1988 $36,712 1st July, 1988 to 30th June, 1989 $39,858 1st July, 1989 to 30th June, 1990 $42,484 1st July, 1990 to 20th August, 1990 $ 6,760 TOTAL $247,716 To this sum must be added a further sum to bring the sum up to the 31st May, 1991 namely $965.71 per week for 41 weeks making $39,594 making a grand total of $287,310. It is clear from the evidence that the deceased would have received benefits by way of superannuation payments and productivity superannuation contributions made by the employer on his behalf although not received by him by way of regular income. The plaintiff also contends that a substantial benefit would have accrued in the form of the provision of a motor vehicle. I am persuaded that there is force in the argument regarding tfie . superanriuation benefits which have been calculated in the sum of the net benefit of $28,145 together with $1,638 each being a net after tax benefit to the d~ceased to August 1990. I am however not persuaded that I should bring into account when calculating past income a figure to reflect the use of a car, albeit for private purposes. It is clear from the evidence that as a project engineer he had the use of a vehicle on site. The evidence establishes that he was collected each morning from work by a fellow employee and delivered home each afternoon. Had he 1 i ved to become a -- 12 of 26 -- 11 project manager he would have had the use of this vehicle to bring home every afternoon and weekend. The vehicle, however, would have had to have been at the work site during the day and hence, I do not feel that any benefit which accrued to the deceased would be such as to relieve the deceased of the necessity of providing a privately owned family car for the use of the plaintiff and the children during the hours when he and the company vehicle were at site. What it would have done was to decrease the proportion of his weekly wage he expended on his need to get himself to work each day. Accordingly, I decline to make any allowance for the provision of a motor vehicle to the deceased. Accordingly therefore the net lost benefits to the 20th May, 1991 is calculated as follows:- Lost periodic payments $287,310 Lost superannuation benefits to 31st May, 1991 $32,000 Total $319,310 I turn now to the assessment of what the deceased would have earned between 20th May, 1991 and his anticipated retiring age. There was much emphasis laid in cross-examination at trial as to the relevant salaries paid to professional engineers employed by the Brisbane City Council, other local authorities and the State Government. found a suggestion by the defendant This was in order to that the plaintiff's career path in his professional life might not have always led him through the more lucrative avenue of private construction -- 13 of 26 -- work but may have involved him in working for a salary for a government or semi-government entity. In my view it is highly unlikely, given the deceased' s academic capabilities and his successful start with John Holland (Constructions) Pty. Ltd. that he would have either elected to join or be forced to join, due to economic circumstances, the public service where remuneration is substantially less than in the private sector. Equally unlikely in my view was· the possibility that he would have switched over to design work in Brisbane as a professional engineer having established a preference and a success at the construction side of his professional activities. It may well have been that his professional career may have taken him to employers other than John Holland (Constructions) Pty. Ltd. He may well have followed Mr. Douglass and Mr. Whyte and gone into business on his own. I am satisfied however that his career path, had it not been for his death, was _highly likely to take him to the upper- ech~lons of the private engineering construction industry. The approach that I see I am obliged to adopt following the de-cision of the High Court in Malec v. J.C. Hutton Pty. Ltd. 64 A.L.J.R. 316 where the majority at p.318 had this to say:- 11The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring." -- 14 of 26 -- .Ll. Brennan and Dawson JJ. at p.316, in my view best described the approach in saying:- "By contrast, earning capacity can be assessed only upon the hypothesis that the plaintiff had not been·cautiously injured (or killed): What would he have been able to earn if he had not been tortuously injured {or killed)? To answer that question a court must speculate to some extent. As the hypothesis is false - for the plaintiff has been injured {killed) - the ascertainment of earning capacity involves an evaluation of possibilities not establishing a fact as a matter of history." In an assessment such as this, what then I am obliged to do is to ascertain the deceased's future earning capacity by evaluating the possibilities and then, of course, going on·to evaluate what proportion of the total sum reached, having evaluated the deceased's earning possibilities, he would have devoted to his family. The evidence of all the witnesses was glowing as to his prospects as based upon the five years that he had been with John Holland (Constructions). In my view it is highly likely that he would have reached the upper echelons of his profession. Whether that involved becoming a State Manager or a construction manager is really not necessary or possible to decide - I am satisfied that his prospects of enjoying this degree of success were extremely high. Because of the period involved between the present and his anticipated retirement at the age of 65 years I must also have regard to the exigencies not only of life in general, but life in the professional world of engineering. It is important however, not to lose sight of the fact that all the exigencies of life are not negative. He may well have left John Holland (Constructions) following Mr. Whyte and Mr. -- 15 of 26 -- ll Douglass to found his own company. him a millionaire or alternatively bankrupt. The company may have made it may have made him a I was invited by counsel for the plaintiff to attempt to predict a career path for the deceased, allocating a projected weekly wage for the professional levels he was likely to achieve at certain stages of his career. To do this however seems to me to fly on the face of the approach laid down by the High Court in Malec's case, supra, and to imply a degree of scientific precision which in reality is quite foreign to the assessment process. My task, as I see it, is to assess a sum in today's money which will represent an evaluation of what his income was likely to have been, averaged over the future lost period. I allow a weekly lost sum of $950 until he attained the age of 60 years. I turn now to the question of dependency. The parties James was born September, 1980 were married on the 1st September, on the 14th March, 1978, Luke on and Rebecca on the 30th January, five months after her father's death. 1977 and the 3rd 1984 some They had married at a young age but after both had managed to acquire a university degree. Each had been educated at private Catholic schools, and not unnaturally, both the plaintiff and the deceased, according to the plaintiff's evidence which I accept, intended that their children would be educated to tertiary standard. To date that -- 16 of 26 -- 12. intention appears to have been well founded for both the boys are high achievers at their private Catholic schools. The plaintiff said in evidence that it was their intention to have a large family and accordingly it seems to me that the deceased would have had a very large call on his net wage to support and educate his family to the standard that both and his wife had enjoyed. The plaintiff during the course of the marriage undertook occasional part time work as a physiotherapist. This work was either of a locum nature or on weekends. This work, I accept, was undertaken more for the purpose of maintaining her professional skills than earning income, and in the case of the relieving work at the hospital, it required her to pay babysitting fees. At present, she works 20 hours per week over five days during school hours, earning $16.90 per hour plus 7.5% of fees rendered. She had bought into a physiotherapy practice, but found this too stres~ful, ultimately selling her interest at a loss. I am satisfied that had the deceased not been killed, the plaintiff would have, from time to time, performed some physiotherapy work when and if that work was available. I am, however, satisfied that with their joint intention to have more children and given the peripatetic nature of the deceased's employment, the physiotherapy work would have contributed little to the family income. The deceased worked as a project engineer which meant he was collected from home each morning and returned there after work. When he progressed up the professional ladder, he would -- 17 of 26 -- 1.§ have been provided with a car, the benefits of which I have earlier disregarded for the purpose of assessing the lost income. However, any car owned by the family and paid for from his wages would have been for family purposes, he being supplied with a company car for both his professional and private use. He wore shorts and shirt to work, as well as boots provided by the employer. On Friday he would spend approximately one hour at the local hotel with his workmen as well as playing squash one night each week. His principal recreation was spending what available time he had with his family and to this end Sunday became a day for family outings. The deceased 1 s salary was paid into a trading bank account, the cheque book for which was held by the plaintiff as was the credit card. Hence, whilst the deceased was a professional man, earning a visited with none of the associated with professional professional usual expenses men living in salary, he was and interests a city. His clothing and recreational expenses were minimal, freeing most of his· income for family pur·poses. Boarding school fees would, no doubt, have been part of the future calls upon his purse given his chosen career path and this expense for three children followed by the possible expense of accommodating his children in Brisbane whilst they were university students would have required substantial savings during the period of their primarr education. -- 18 of 26 -- ll r recognise of course, the possibility that by the time the children enrolled at university he would have achieved a position which involved the family being based in Brisbane. The plaintiff's evidence persuades me that the deceased was an energetic and competent handyman around the house. The plaintiff is now forced to employ paid labour to perform those tasks which the deceased would, had he lived, performed gratuitously for himself and the family unit. I make, however, no individual assessment with respect to this contribution. No evidence was led by either the plaintiff or the defendant as to any accelerated benefits received by the plaintiff and accordingly it would appear that any benefit to which I must have regard was already being enjoyed by the plaintiff during the deceased's lifetime. I make no allowance in this regard. The plaintiff said in evidence that she does not intend to remarry and that her present situation as the mother of three young children and somewhat closed social circle minimises her chances of meeting single males. I decline to make any allowance for the prospects of.remarriage. There are · different periods during which the deceased would have had differing calls upon his weekly wage as in turn James, (presently aged 13 years), Luke (presently aged nearly 11 years) and Rebecca, ( presently aged 7 years) would have completed firstly their primary, secondary and finally tertiary educations. -- 19 of 26 -- JJi I am satisfied however, that, as one ceased his dependency upon his that child' s share father, to his the deceased would have devoted remaining dependents rather than spending it on himself. In other words, each of the remaining dependents (and in particular the plaintiff) would have enjoyed more benefits. As to the loss to trial, I find that had he lived the deceased during this period would have contributed some 80% of his income to the family which· I assess as 80% of $319,310 namely $255,448 which I apportion as follows:- 60% of $255,448 to the plaintiff $153,268 40% of $255,448 equally between the 3 children $102,180 or $34,060 each. Then would have followed a period from June 1991 for some 25 years until the deceased's anticipated retirement allowing some adjustment for life's vicissitudes. By the year 2005 when Rebecca attained the age of 21 years and completed her tertiary education the deceased would have divided his income between himself and the plaintiff with the plaintiff receiving 60% of the deceased's income. Hence, would have for some 14 devoted 80% years of his from today income to I am satisfi~d he the plaintiff and those of his children who remained dependent upon him. In arriving at this somewhat arbitrary apportionment I bear in mind that Rebecca as the youngest child and a daughter may well have received benefits not available to her brothers and in particular, celebration. substantial expenditure on a wedding -- 20 of 26 -- li I have already assessed a weekly loss to the deceased of $950 of which 80% is $760. For the plaintiff I allow the following proportions of $760 for the following periods:- 60% of $760 namely $456 for 14 years (until Rebecca ceases her dependency) and thereafter 60% of $950 namely $570 for the following 11 years which applying to the 3% tables I calculate at $418,326 plus $36,610 making a total future loss for the widow of $454,936. For James I allow the figure of $1 01 per week for 11 years giving a total of $49,357. For Luke I allow the figure of $101 per week for 11 years and thereafter $150 per week for 2 years giving a total of $49,357 and $10,919 making a grand total of $60,274. For Rebecca I allow the figure of $1 01 per week for 11 years, $49,357, $150 per week for 2 years, $10,919 and $300 per week for 1 year, $10,438 giving a grand total of $70,712. Accordingly, for future loss I assess damages as follows:- The plaintiff James Luke Rebecca Total Future Loss $454,936 $ 49,357 $ 60,274 $ 70,712 $635,277 Special damages as follows have been admitted and allowed in the estate claim:- -- 21 of 26 -- Funeral Expenses Cost of depositions Testamentary Expenses Total $1,958.00 $ 55.60 $1,863.00 $3,876.60 Mr. Williams of Queens Counsel who appeared for the plaintiff submitted that I should exercise my discretion with respect to interest and award interest at commercial rates from February .1990 when he submits the case ought to have been tried. It is certainly correct that the setting down of this matter was strongly opposed on several occasions by a representative of the defendant both at the callover and in chambers. Apparently an appeal in another action arising out of the same motor vehicle incident was pending, dealing, I assume, with the issue of which d.ri ver and hence which insurer was responsible for the traffic incident. In the end, I cannot see how this action dealing as it does with damages consequent upon the death of the passenger ought to have been delayed because of a dispute ultimately between insurers of motor vehicles. Exhibit 39 being a letter to the plaintiff's solicitors from Westpac Banking Corporation of 14th August, 1990 establishes interest rates on large sums of money ranged from 17. 5% and 1 4. 5% during the relevant period. The Full Court decision of Serisier Investments Pty. Ltd. v. English recognises that a court may depart in certain circumstances -- 22 of 26 -- .ll from the usual practice of awarding interest on past economic loss calculated by reference to 12% Here it is clear that the matter would have been given an earlier hearing date had it not been for the objections of the defendant, objections which I should say I am by no means persuaded were valid. Mr. Williams Q.C. asks for interest on past losses, calculated by reference to 12% {in reality 6% because of their accruing nature) until February 1990 and thereafter on the total sum at a commercial rate which he nominates at 15.5% My initial inclinations were to grant this request, but having regard to the absence of any evidence of a warning of this request to the solicitors for the defendant at the time of their opposition to listing and the prevailing practice in personal injuries and related matters in this Court, I am not prepared to exercise my discretion and depart from the usual practice. The plaintiff, on behalf of herself and her then two children received a payment from the Workers Compensation Board in the sum of $46,660 allocated $15,560 to herself and $31,100 for payment was according to Compensation brought into the children James and Luke. · The the "set aside and invested for being a letter of it is clear that such children's children" Exhibit Board, and 5' the sum Workers must be account as regards each of the three children {see Exhibit 9) when calculating interest. calculate interest as follows:- Plaintiff {past loss) Interest on $153,268 less $15,560 Accordingly I -- 23 of 26 -- 22 $137,708 at 6% for 7.75 years $ 64,034.22 Total $217,302.00 James ) ) $34,060 less $10,367 Luke ) ) $23,693 at 6 % for 7.75 years$ 11,017.00 Rebecca) Total $ 45,077.00 each Grand Total $352,533.00 I allow interest on the admitted special damages:- $1,918 of the admitted special damages for 7 years at 12% Total $ 1,611.12 $ 5,487.12 It is clear that protection orders must be made for each of the three children to operate until they attain the age of 18 years. The assessment which I make with respect to each of the children are as follows:- James Past economic loss plus interest Future loss Total Past economic loss plus interest Future loss Total $ 45,077 $ 49,355 $ 94,432 ======== $ 45,077 $ 60,274 $105,351 ======== -- 24 of 26 -- Rebecca Past economic loss plus interest Future loss Total $ 45,077 $ 70,712 $115,785 ======== The Public Trustee charges both a commission on receipt of the capital sum (2.5% - 3.5%) together with interest at 6% on the annual income derived thereon. This second commission of course will depend upon the income earned by the fund and, more importantly, just what fund remains from year to year after the advances made for the maintenance, support and education of the children by the Public Trustee. Pursuant to his powers under the Public Trustee Act and the Trust Act. Therefore any calculation of the charges levied by the Public Trustee during the currency of each protection order must be estimates only. In each case, I allow the sums of $5,000, $6,000 and $6,500 respectively for the awards of James, Luke and Rebecca. Accordingly therefore I assess damages as follows:- Estate Claim $3,876.00 Interest thereon $1,611.12 The Plaintiff Past Loss Interest Future Loss $153,268 $ 64,034 $5,487.12 $217,302 $454,936 $672,238 -- 25 of 26 -- James Past Loss Interest Future Loss $34,060 $11,017 Public Trustee Fees Past Loss Interest Future Loss $34,060 $11, (r1 7 Public Trustee Fees Rebecca Past Loss Interest Future Loss $34,060 $11,017 Public Trustee Fees $45,077 $49,355 $ 5,000 $45,077 $60,274 $ 6,000 $45,077 $70,712 $ 6,500 $99,432 $111,351 $122,289 Accordingly, I give judgment for the plaintiff against the defendant in the sum of $1,010,797.12 . . I give liberty to apply with respect to arithmetical errors. -- 26 of 26 --