Thornton v Lessbrook Pty Limited t/as Transair  QCS 308
The plaintiff was engaged to Ms Sally Urquhart ('the deceased') who was killed when the aircraft in which she was a passenger crashed in far north Queensland, in 2005. The plaintiff's claim for pecuniary loss was brought pursuant to the Civil Aviation (Carriers Liability) Act 1964 (QLD). The decision examines the assessment of damages where the deceased was likely to maintain her career and earn more than the plaintiff.
Civil Aviation (Carriers Liability) Act 1959 (Commonwealth) limits the liability of a domestic carrier to $500,000. Both the plaintiff and the deceased were police officers and, in particular, the deceased was a police officer with a very promising future. The deceased joined the police service with degrees in science and law and the court heard evidence from a senior police officer that the deceased would have achieved rapid promotion through the ranks of the police service.
There were a number of issues the court was asked to address concerning the assessment of damages; the likely earnings of the plaintiff and the likely earnings of the deceased. The court was required to consider a number of contingencies including the continuation of the relationship between the plaintiff and the deceased, the possibility of children and the impact of a new relationship which the plaintiff had commenced.
The court also had to determine whether the statutory cap of $500,000 included costs and interest and whether the assessment should take into account benefits arising from the deceased's death such as a life insurance policy and payment from a superannuation fund.
It was accepted that the plaintiff and the deceased contemplated having at least two children. Debate surrounded the approach to an assessment including whether parental leave would be paid or unpaid, the length of any parental leave and the financial impact of any children particularly on the level of dependency of the plaintiff. His Honour pointed out that through an apparent oversight, the reforms effected by s23A of the Supreme Court Act 1995 (QLD) did not affect the assessment of damages. Accordingly, the contingency of a new relationship was governed by the principles discussed by the High Court in DeSales v Ingrilli (2003) 212 CLR 338.
The court concluded that the deceased's income would have exceeded that of the plaintiff. Of note, His Honour commented that the use of Professor Luntz's table (Assessment of Damages for Personal Injury and Death fourth edition) is at best a guide. His Honour pointed out that one limitation on using the percentages derived from Luntz's table 9.1 is that it was based upon the assumption that children were born at the time of trial. His Honour stressed that any assessment must take into account the possibility of infertility, the possibility the couple had only one child, as well as the possibility that the plaintiff and the deceased may have had more than two children. His Honour noted the absence of actuarial evidence.
The plaintiff gave evidence that he was currently in a relationship although not as a defacto and since the crash had previously been in a short-term relationship for several months. The court observed that the plaintiff's new partner earned substantially less than the deceased and the relationship was in its early days in comparison with the relationship between the plaintiff and the deceased.
His Honour concluded that this was not an appropriate case for a 'separate and substantial discount or deduction for the new relationship'. His Honour stressed that he was not in a position to reach any conclusion based upon 'evidence of the probable financial consequences' of the relationship. The absence of evidence that the new relationship will bring financial advantage in the long-term to the plaintiff was highlighted by the court. Instead, His Honour thought it more appropriate to take account of the possibility of financial advantage through the new relationship by increasing slightly the discount, but noted that the increase in the discount for contingencies should be moderate.
His Honour determined that for past loss of financial dependency a discount of 15% was appropriate. For future loss of financial dependency, His Honour considered a discount of 20% to be appropriate. The plaintiff had received a lump sum payment from WorkCover and as it offset any interest, His Honour considered it unnecessary for him to decide the point as to whether the cap of $500,000 included interest.
However, His Honour did not accept that the limit on liability included costs:
In this case, His Honour determined that the benefits the plaintiff received by way of superannuation benefits and death benefits should not be brought into account by way of reduction. Section 38 of theCivil Aviation (Carriers Liability) Act 1959 dictated that those benefits should not be taken into account by way of a reduction of damages. His Honour's assessment of damages totalled $526,232 and given the limit on liability, judgment was entered in the sum of $500,000 plus costs.
The decision is a reminder that assessments in dependency claims are complicated and involve exhaustive examination of a number of contingencies pertinent to each case. His Honour confirmed that the Luntz table is to be used as a guide only. Further, if an assessment is to be calculated outside the s23A Supreme Court Act (QLD) reforms, and a new relationship is to produce a significant reduction, there must be concrete evidence which demonstrates that part of all of the plaintiff's loss will be replaced by benefits received from the new spouse.
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