Case Study: Death Dependency Compensation Claims

On 26 August 2010, in the Supreme Court of Queensland, Brisbane, His Honour Justice Applegarth, delivered his decision in the matter of Thornton v. Lessbrook Pty Ltd [2010] QSC 308. This is the Background of the Claim and Death Dependency Case Study:  

On 7 May 2005 Ms Sally Urquhart and 14 other people were on board a small airplane flying from Bamaga on Cape York to Cairns when the plane struck the ridge known as South Pap, which is 11 km from the Lockhart River Airport. The plane was completely destroyed on impact and all 15 passengers died as a result of same. At the time of her death Ms Urquhart was engaged to be married to the plaintiff, Trad Thornton, they had planned to be married on 9 September 2005.  

At the time of the crash both Ms Urquhart and the plaintiff were officers in the Queensland Police Service and were stationed out of Bamaga. Ms Urquhart was a Constable and the plaintiff a Senior Constable.  

The plaintiff brought this claim against the owner of the airplane and it’s insurer under the Civil Aviation (Carrier’s Liability) Act 1964 (Qld) and the Civil Aviation (Carrier’s Liability) Act 1959 (Cth). His claim was for the pecuniary loss he had incurred due to the untimely and wrongful death of his fiancé, which is traditionally known as a Lord Campbell’s Act case. The plaintiff’s claim is for loss of domestic services and loss of expected input into the household income which the deceased would have been expected to provide had she lived, most often this is called loss of dependency however the surviving spouse does not need to be dependant upon the deceased spouse to be entitled to an award.  

The Commonwealth Act creates a no fault system which limits the defendant’s liability to $500,000.  

Issues in Issue

There were a number of issues which set this claim apart from other Lord Campbell’s Act claims, those being:

  • At the time of her death Ms Urquhart was in a lesser paid position than that of the plaintiff although evidence provided at trial suggested that she would have been promoted ahead of him and would have, within a relatively short period of time, earned considerably more than him.
  • The effect children would have had on Ms Urquhart’s career and earning capacity and what effect any career breaks for maternity leave would have had on her promotional opportunities and income
  • The approach to calculating the pecuniary loss
  • The benefits paid under Ms Urquhart’s superannuation policies as death benefits and whether those ought to be taken into consideration when determining the award that should be made against the defendant and it’s insurer
  • Whether the plaintiff would experience financial advantage or disadvantage from a new relationship. Due to the nature of the legislation it became apparent that s. 23A of the Supreme Court Act 1995 does not apply to these claims
  • Whether the $500,000 limitation on damages had to include interest and costs

Contingencies and Reasons for the Court’s Decisions

It was accepted that due to Ms Urquhart’s educational qualifications, her personal qualities and government gender equity policies she would have progressed quickly through the Queensland Police Service ranks and more likely than not become a commissioned officer within a relatively short period of time. His Honour determined that the plaintiff would have continued in a similar career progression that he has done had Ms Urquhart survived and continued their lives together. It was decided that it would be likely that the plaintiff would have achieved the rank of sergeant in the next few years and progressed sometime in his career to senior sergeant.  

His Honour, when considering the effect children would have on Ms Urquhart’s income and career progression cited a number of precedent cases, the precedents vary with regard to whether the prospect of children ought to be taken into consideration when determining the financial loss the death has had on the surviving spouse and the possible income the deceased would likely brought into the household. There are a number of precedent cases which assert that the calculations should be determined on certain fact that being that at the time of Ms Urquhart’s death she and the plaintiff did not have children. Other precedent decisions reject this concept choosing to have the prospect of children being borne into the relationship and the likely effect that would have had on the income not only brought into the household but that of the household pool due to have more people dependant upon same being a contingency on the amount to be awarded for this loss. The latter of these two principals was accepted and used in this death dependency case.  

It was decided that it would be more probably than not, taking into consideration Ms Urquhart’s health and the decisions made by the couple prior to her death, that they would have had two children sometime in Ms Urquhart’s mid to late thirties. After considering table 9.1 of Luntz and also the traditional method of calculation His Honour decided that neither method of calculation took into account, specifically the prospect of unborn children. He then determined that the usual methods ought to be reconfigured to allow slightly more than usual for the contingencies of more or less children actually being born, infertility, and the prospect of a new relationship where the new partner may bring more or less income into the household and the couple may decide to have more or less children. In any event the prospect of unborn children was taken into account in the calculations when the Court determine the likely loss of household income / dependency the plaintiff would have had the benefit of had Ms Urquhart survived.  

Another contingency that was taken into account was the prospect of the plaintiff entering into a new relationship, whether this prospect was governed by s. 23A of the Supreme Court Act 1995 (Qld) or whether case law precedent ought to be applied when determining whether the prospect of the surviving spouse is likely to receive financial advantage or disadvantage from entering into a new relationship. It was agreed between the parties that on construction s. 23A of the Supreme Court Act 1995 (Qld) did not apply to claims brought under the Civil Aviation (Carrier’s Liability) Act 1964 (Qld) and as such it was a matter for the Court to decide whether to consider the prospect of a new relationship of the plaintiff when deciding how his damages should be calculated. The decision in De Sales v. Ingrilli [2002] HCA 52 held that, ordinarily, no separate allowance should be made for the possibility, even probability, that a new relationship will be formed. A distinction to this principal however was in the event that, at the time of trial, the plaintiff had entered into a new relationship. However, Their Honours also considered that if the likelihood of remarriage should be treated as a separate contingency then it would seem that it is one that can be determine with a level of certainty and this was further discussed in the decision paying particular regard to the unknown quantity of any relationship. Their Honours then discussed their views on whether a plaintiff had entered into a new relationship at the time of the trial and it was decided that it should only be considered with more weight if there is evidence that the new relationship brings with it financial advantage or disadvantage.  

Since Ms Urquhart’s death the plaintiff had entered into two separate relationships, one in 2007 and the other in 2009. The first relationship lasted approximately nine months and derived no joining of finances and the length of same did not give rise to de facto property settlement legislation. The second relationship was current at the time of trial but was only seven months old, the plaintiff and his new partner did not share finances and he derived no financial gain from the relationship at the date of trial. His Honour determined that since the relationship was of such a short length and the plaintiff derived no financial gain or disadvantage from same then a separate contingency or deduction should not be made, His Honour instead decided to apply a higher discount than usual to the overall discount for contingencies of life and vicissitudes.  

In deciding the amount of the plaintiff’s award, His Honour provided a figure for lost dependency which took into account the financial consequences of children of the relationship; he then provided a 20% discount for contingencies rather than the usual 15%.  

Due to the plaintiff having been provided a $153,000 statutory payment by WorkCover Queensland shortly after Ms Urquhart’s death His Honour did not invoke his discretion to award interest on the award amount and as such did not explore whether interest ought to be within or separate to the damages limitation under the Act.

The plaintiff was provided with an awarded for domestic services, which was discounted for the period of time he had resided with his first partner and then second partner since Ms Urquhart’s death.  

His Honour considered the defendant’s argument that the death benefits received by the plaintiff at the time of Ms Urquhart’s death should be taken into account to reduce the amount of the award made under this action. The main reason for the argument was the acceleration of him receiving same due to the deceased untimely death and the wording of s. 38 of the Civil Aviation (Carrier’s Liability) Act 1959 (Cth). His Honour considered this argument and decided that those amounts should not be taken into account when deciding the award to be made to the plaintiff and the liability of the defendant.  

On the question of whether costs ought to be included in the statutory cap His Honour decided that without clear words to that effect he was able to use his judicial discretion to award costs on top of the damages cap and did so.  

The plaintiff was awarded $526,232 being reduced to adhere to the legislative cap of damages being $500,000 and costs on a standard basis either to be agreed or assessed.

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