HALL & ORS v ALICE SPRINGS VETERINARY CLINIC PTY LTD & ORS

Supreme Court of the Northern Territory of Australia Asche C.J.
3, 4, S, 6 May 1988 and 12 January 1989 at Darwin

NEGLIGENCE - Liability - whether at time of accident pilot was a servant of the first defendant - whether at time of accident pilot was acting within the course of his employment

NEGLIGENCE - Proof - expert evidence - plane crash - pilot and passenger killed - failure to exercise proper control over aircraft - flying at an unsafe altitude - failure to maintain reasonable regard for stall speed of aircraft

DW..AGES - Assessment - fatal accident - death of husband - claim under Compensation (Fatal Injuries) Act - wife and two children - solatium and loss of consortium - solatium, loss of care and guidance for children - household services - economic loss to date of trial, future economic loss: Fatal Injuries (Compensation) Act (NT) ss 7 and 10

Cases cited:
Bennett v Liddy (1979) 25 A.L.R. 340
Dilworth v Peko Wallsend Operations Ltd (Unrep. decision of Supreme Court of the N.T. - 18/12/81)
Parsons &   Ors v Australian Telecommunications Commission & Ors (Unrep. decision of Supreme Court of the N.T. - 2/12/83)

Cases followed:

Curator of Estates of Deceased Persons and Rozario v Fernandex (1977) 116 A.L.R. 445
Martin v Ferguson (Unrep. decision of Supreme Court of the N.T. - 10/2/84)

Counsel for the Plaintiff:
Solicitor for Plaintiff:
Counsel for First and
and Second Defendants:
Solicitor for First and and Second Defendants:

I. Barker Q.C. Mildrens
T.A. Gray Q.C.

Ward Keller

•

asc880236

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
No. 872 of 1981
No. 348 of 1984

BETWEEN:

VIRGINIA MARGARET HALL and TANYA CHERIE HALL and WILLIAM
MARSDEN HALL by their next
friend VIRGINIA MARGARET HALL
Plaintiffs

AND:
ALICE SPRINGS VETERINARY CLINIC
PTY LTD trading as ALICE SPRINGS VETERINARY CLINIC
First Defendant

AND:

EDAH PTY LTD trading as ALICE SPRINGS VETERINARY CLINIC

Second Defendant

AND:

ALROY DOWNS PASTORAL COMPANY PTY LTD

Third Defendant
AND:

CORAM:	ASCHE C.J.

DOUGLAS ALEXANDER CURTIS and
LOUISA ALICE CURTIS as Executor of the Will of BRUCE DOUGLAS CURTIS (Deceased)
Fourth Defendant

1

REASONS FOR JUDGMENT
(Delivered 12th January 1989)

The plaintiff Virginia Margaret Hall is the widow of Russell John Hall who died on 6 November 1978 as a result of an aircraft accident.	At the time of the accident the deceased was a passenger in a Cessna 172 aircraft being piloted by one Bruce Douglas Curtis who also died in the accident.

The plaintiff brings one action (No. 348 of 1984) in her capacity as representative of the estate of the deceased; and another action (No. 872 of 1981) pursuant to the Compensation (Fatal Injuries) Act on behalf of herself and the two children of the marriage Tanya Cherie Hall born on 5 March 1972 and William Marsden Hall born on 3 April 1974.	The two actions were consolidated by order of Forster C.J. on 6 December 1984.

At the commencement of the hearing of these proceedings I gave leave to the plaintiff to file an amended Statement of Claim.	That amended Statement of Claim restricts itself to damages under the Compensation (Fatal Injuries) Act.

The case for the plaintiff is that at the time of the accident Dr Curtis was negligent in his control

and operation of the aircraft.

Originally four defendants were joined.	As I understand it the first three defendants were sued as employers of Dr Curtis, there being some doubt as to which entity was the actual employer.	The fourth defendants were the executors of Dr Curtis' estate.		All defendants entered appearances.	Notice of discontinuance against the third defendant was filed on 3 May 1988.		Mr Barker Q.C. who appears for the plaintiff has told me that the plaintiff has also discontinued against the
fourth defendant and although I can find no formal notice of that on file I accept that the fourth defendant has been properly informed of this and no-one has appeared before me to represent the fourth defendant.	As to the second defendant Mr Barker informed me at the commencement of the hearing that the second and first defendants were actually the same entity and that in effect the action would be proceeding against the first defendant only.	Mr Gray Q.C., who with Mr Cameron appeared somewhat fleetingly for the first and second defendants in circumstances which I will later mention, assured me that on his instructions the second defendant was a separate corporate entity and was not incorporated until 2 February 1979 i.e., some 3 months after the accident.	Mr Barker did not seek to challenge that assertion.		There appears to have been some agreement that Notice of Discontinuance would be filed against the

second defendant and on the basis that is or will be so, I will treat the action as against the first defendant only and consequently I will make no order of dismissal of the plaintiff's case against the second defendant; no such order being sought by Mr Gray.

For the purpose of any possible future proceedings I think I should set out the basis of the appearance and subsequent disappearance of Mr Gray and Mr Cameron from the proceedings.	That was very properly and frankly explained by Mr Gray.	As is by no means unusual in these matters he and Mr Cameron were appearing for the first and second defendants but on the instructions of their insurers.	At the eleventh hour, and only because of receiving notice of a proposed amendment to the Statement of Claim, (which amendment, in this particular, is not now relied on, and does not appear in the amended Statement of Claim which I have given leave to file), the insurers became aware that Dr Curtis was a director of the first named defendant.		Whether that should have been discovered earlier and by whom is not a matter on which I would wish to comment.	As I understand it, that fact was considered to make a substantial difference to the attitude of the insurers.	It was apparently thought, (and I am to some extent conjecturing here for the policy is not before me), that the terms of the policy under which the first defendant was insured did not cover, at least for actions such as this, the actions of a

director.	Whether that is so or not is, of course, not for me to decide.	The insurers, however, took the view that they were not prepared to continue to instruct counsel in the matter.	Hence Mr Gray and Mr Cameron withdrew.	The solicitors on the record for the first and second defendants who obviously also received their instructions from the insurers then gave notice of ceasing to act for the first and second defendants.	Mr Robinson of McCormack & Co, Solicitors then announced his appearance for the first defendant but informed me that his instructions came from a director of the first defendant who had nothing to do with the company at the relevant time and the first defendant had no resources to resist the plaintiff's claim, although that was not to be construed as admitting it.	He too, then withdrew, leaving the case uncontested.	No application was made by him for an adjournment on behalf of the first defendant.

I very much fear that, if the plaintiff now succeeds in her claim, she will have grave difficulties in recovering such damages as may be awarded.	That, unfortunately, is not something that can be dealt with in these proceedings and my task is limited to considering the evidence adduced on her behalf and making such orders as properly flow from that evidence.

The first two issues, as I see it, are to determine whether at the time of the accident Dr Curtis

was the pilot of the plane which crashed killing both himself and the deceased; and whether at that time he was a servant or agent of the first defendant, which I will from now on refer to as "the defendant".

Those issues are simple.	Mr J.W. Perryman was, at the time of the accident, Manager of Alroy Downs Station which employed the deceased.		There is evidence from Mr J.W. Perryman that on 6 November 1978 arrangements were made for the deceased (who was not a pilot and indeed disliked flying) to fly with Dr Curtis (who was a pilot as well as being a veterinary surgeon) to check movements of cattle.	Mr J.J. Perryman (a son of Mr J.W. Perryman) was one of the first at the scene of the accident and his evidence is unequivocal that when he arrived both the deceased and Dr Curtis were still in the plane, both dead, and the deceased was in the passenger's seat and Dr Curtis was in the pilot's seat.	I have no hesitation in finding that at the time of the accident Dr Curtis was the pilot.

The second issue is covered by the answers on behalf of the defendant to interrogatories delivered on behalf of the plaintiff.	Answers to interrogatories 2 and 3 establish that on and prior to 6 November 1978 the defendant employed Dr Curtis and that at that date he was at Alroy Downs (the station where the accident occurred) for purposes connected with his employment with the

defendant as a veterinary surgeon.	Exhibit "D" is a letter signed by a Dr Brown and a Dr Oliver dated 15 November 1978 to a Mr Steron of Aviation & General Insurance Company.	It is written on paper bearing the letterhead "Alice Springs Veterinary Clinic" and with the names "Dr Brown"; and "Dr Oliver" in capital letters on the top left hand corner.	The letter reads:-

"We, the undersigned, employed the late Dr Bruce Douglas Curtis as a veterinary surgeon.
Dr Curtis held a current, unrestricted Private Pilot's Licence and he was approved by us, the undersigned, to pilot our aircraft concerned i.e. VH AFV."

Mr J.W. Perryman gave evidence that a Dr Brown frequently attended the Alroy Downs Station in his capacity as a veterinary surgeon and that he usually arrived by plane and used the plane to fly to various parts of the station to check the paddocks and test cattle for the purposes of brucellosis and T.B. testing. The same procedure had been used by another veterinary surgeon, a Dr Bradley.	Mr Perryman was we.11 aware of the practice of these veterinary surgeons to use aircraft for the better discharge of their duties on Alroy Downs and Mr Perryman himself had often been with Dr Brown and Dr Bradley on such flights.		Dr Curtis had arrived by plane the day before the accident.	He, too, had previously done veterinary work on the station although Mr. Perryman had not seen him flying before the date of the accident.

However the arrangement on 6 November 1978 was quite clear that the deceased was using the plane in the course of his inspection of cattle.	I conclude from the evidence that it was not only customary but expected that veterinary surgeons in the course of their contracts with the station would use planes when available to carry out their duties, that this was a reasonable and efficient means of carrying out those duties, and that this would be well known to those conducting the defendant's business.	I find that at the time of the accident Dr Curtis was employed by the defendant and was acting in the course of and within the scope of his employment with the defendant.

The next issue is whether at the time of the accident Dr Curtis was negligent in his control and management of the aircraft.	That involves examining the background and circumstances of the accident in detail.

The deceased, at the time of the accident, was employed as head stockman at Alroy Downs, a cattle station of about 3600 square miles immediately south of Brunette Downs Station and north of the Barkly Highway. It ran a herd of approximately 35,000 head of cattle and about 500 horses.	For its veterinary services it usually contracted with the defendant.	Apart from normal veterinary duties those services were required as part of a government assisted programme in the Northern Territory

to stamp out brucellosis and tuberculosis in cattle (the "BTEC" programme).	This involved mustering and yarding cattle, injecting them and testing for positive reaction to those diseases.	Those found to be positive were destroyed and compensation was paid.	It was common to use aircraft to locate cattle so that they could be the more easily mustered.

Dr Curtis had flown to Alroy Downs on 5 November 1978, .which was a Sunday, and, on the Monday, either injected or examined some 800 or 900 head of cattle at the homestead.	There was another mob of cattle about 8 miles away which then had to be driven to the homestead yard while the earlier mob were released, taking care they did not mingle with the incoming group. Mr J.W. Perryman gives evidence that the deceased suggested that he and Dr Curtis fly out to check where these cattle were.	That was agreed.

The plane flew to No. 8 Bore where the cattle were located.	It was seen by two witnesses who were already at No. 8 Bore waiting to muster the cattle.	Mr Stanfield was there as a jackeroo.	He saw the plane come down from the general direction of the homestead and fly round almost completing a circle and then "fly back - almost to the direction it came, and went up - or it rose sharply and fell back and into the ground".	He estimated its height before it fell to the ground as 200-300 feet.

The plane hit the ground about 200-300 yards from him. He went immediately to it and found both the pilot and the passenger dead in their seats.	The plane was still standing on its nose.	Three pictures of the plane in this position are exhibited (Exhibit "L").	The front part of the plane is directly into the ground and with the wings touching the ground, the front part crumpled. The rear section of the plane is tilted at an angle of about 80° to the ground.

Mr J.J. Perryman, another jackeroo and the son of Mr J.W. Perryman, the manager, was also at No. 8 Bore. He says he saw the plane come from the north, circle twice at a height which he estimated at about 100-150 feet.	He thought that the pilot or passenger was going to drop a note, which was apparently quite a usual practice.	Then, he said, "It just started to climb out pretty steep, then it sort of rolled over and come back down".		His evidence continues:-

"Well on the last circle they sort of straightened up and headed out and then the aeroplane just climbed up fairly steep and then it just stopped and just come back down, sir."

Q:		Was it flying parallel to the ground and then went upwards?
A:	Yes.	It was flying level and then just went straight up.	Well, not straight up.	In a, probably about a 70° angle, I suppose, sir.
Q:		And you think it was then about how far from the ground?

A:	It would have been 100 foot.
Q:		As it turned up to an angle of 70° what happened?
A:	Well it sort of - it just went up for a while and then it sort of just stopped flying and sort of dipped in on one side and the nose sort of rolled over and it come straight back down, sir."

He said that the aircraft had come straight down on its nose and that he could hear the engine going all the time until it hit the ground.		The propeller was still spinning as it hit the ground.	When he reached the aircraft he observed Dr Curtis in the pilot seat and the deceased in the passenger seat and both were then dead.

Mr Lawford, a flying instructor, was then called.		He has held a commercial pilot's licence since 1959 and is rated by the Department of Transport as an instructor for single and twin engine aircraft.		He is authorised to test persons for a private pilot's licence. He is a pilot with extensive experience of various aircraft both in the R.A.A.F. and civilian life.		He has been an instructor since 1962.	He has flown over 75 different types of light aircraft including the Cessna 172, and he is thoroughly familiar with that type of plane.	He has logged 10,800 hours as a pilot.	I have no hesitation in accepting him as an expert on the flying characteristics of the Cessna 172 and as qualified to give an opinion as to the way in which the accident

occurred.	That opinion was formed after reading reports of the crash by inspectors employed by the Department of Civil Aviation, including reports as to the engine, airworthiness and electrical system of the aircraft and hearing the evidence of Mr J.J. Perryman, and observing the photographs Exhibit "L".	He was asked these questions:-

"Now, can you, from your experience as a pilot, express a view about why that aircraft crashed?
--- Well, specifically, it probably crashed because it stalled and either spun or spiralled at a height too low to effect recovery.
By stalling what do you mean precisely? --- By stalling I mean that the angle that the airflow reaches the wings or moved past the wings, which is normally in the order of 7 or 8 degrees, would have exceeded an angle where the wings functioned normally and, when that happens, the aircraft would normally drop the nose which is - if it is pointing into the air, the nose would point down, and in the situation which has been described with the nose well up in the air, it is quite likely that the left wing would drop because of the effect of the propeller and it would enter either a spin or a spiral.

So by stalling it is, in effect, not being held up? --- Yes, the function of the wings and the function of the angle of attack is to produce lift which counters the weight of the aeroplane and when that angle of attack exceeds about 16 degrees, the airflow breaks down and the wings cease producing lift normally and a number of things can follow, one of which is what happened to this aeroplane.
This is regardless of the fact that the engine is still working normally? --- Yes.	The only effect that the engine would have is that the aircraft tends to rotate in the reverse direction to the propeller.	That's not normally a major factor, but if an aeroplane is going to spin, everything else being equal, it will spin to the left.

When the nose went up, as Mr Perryman, the last witness, told us it did, what was going to happen then? --- If he'd lowered the nose straight away probably nothing.	But probably from the time that the nose had been pointing up for, perhaps 1 or 2 seconds, it was virtually inevitable that the aircraft would have crashed given that it was about 200 or 300 metres above the ground.
How does the ordinarily competent pilot avoid that situation? --- He doesn't do it.
Well, do you mean by that that you don't go so close to the ground for a start? --- Well, there are several things.	First of all, it's not normally done to fly that low, and if you are flying that low, it's most certainly not done to pull the nose up to say 60 or 70 degrees.	It is virtually committing suicide.
How low, consistent with safety, would you fly a 172 - - - ? --- And do that manoeuvre? - - - You could probably do it and recover from it above, perhaps, 1000 feet.	But normally, given that it's a fairly - it's a fairly violent manoeuvre which a 172 doesn't normally do but, if you were going to do it, the general principle would be that you would be able to recover by 3000 feet above the ground.
So that manoeuvre at that height, you say, inevitably led to that crash?	- - - Yes, yes.
HIS HONOUR:	What was the angle you gave me, if flying that low you wouldn't pull the nose up - I think you said say 50 or 60 degrees? - - - Yes, I was basing it on one of the witnesses who said that in his opinion the nose came up to 60 or 70 degrees.	If that were the angle, then it was certainly a most unsafe manoeuvre.

MR BARKER:	Do you see anything about the circumstances of the crash, having regard to what you've heard and what you've read, consistent with anything but pilot error?	In other words, do you see any other factor bearing upon it beyond the error or misjudgment of the pilot?		We are talking in terms of probability?		- - -	Quite so.	Well, first of all, it was an error on the pilot's part to go below 500 feet because that's breaking one of the basic rules of flying.

HIS HONOUR:	I'm sorry, to go what? --- To go below 500 feet above the ground.	Below 500

feet, yes? --- The lower you go, the more unsafe it is in the sense that if anything untoward happens, the greater the degree of risk.	Now, there are several possibilities which could've explained the very high nose-up attitude, but there's a fairly low degree of probability attached to it.
MR BARKER:	What do you say is the most likely cause? --- The most likely cause was that the pilot just tried a manoeuvre which he wasn't qualified to do, and shouldn't have done it at that height."

Mr Waddingham is a licensed aircraft engineer of extensive experience and a member of the Institute of Airworthiness Surveyors.	He inspected the engine of the aircraft after the crash and could find no evidence of mechanical or electrical malfunction and so reported to the Department of Transport and Communications.

Mr Gurner, a licensed aircraft engineer since 1947 inspected the magneto of the aircraft to establish whether it was functional at the time of the crash and could find nothing to suggest it was not capable of acting in the normal manner immediately before impact.

Mr Kenyon, a licensed aircraft maintenance engineer since 1959 with a great deal of experience examined the engine of the aircraft after the crash and found no evidence of any malfunction.	He says it was a reasonably new engine in good condition.

The result of all this evidence is plain that

the accident occurred not because of any mechanical or electrical faults in the aircraft but by human error.  The evidence of Mr Perryman and Mr Stanfield establishes that immediately before the crash the aircraft was flying at a height somewhere between 100 feet and 300 feet and then rose sharply at an angle of about 70°.	Mr Lawford considered that if a plane was flying at that height it
was "virtually committing suicide" to pull the nose up to 60-70°.	He was quite emphatic that was not a manoeuvre which would be executed by an ordinarily competent pilot. It was in his opinion a most unsafe manoeuvre.	I am therefore satisfied that the accident was caused by the negligence of the pilot Dr Curtis in the following particulars:-

Failing to exercise proper control over the aircraft.

Flying at an altitude which was unsafe in all the circumstances.

Failing to have any reasonable or proper regard to the stall speed of the aircraft.

Manoeuvring the aircraft in a manner and in a position which was unsafe in­ all the circumstances.

I therefore turn to the question of damages.
These fall into various heads pursuant to the Fatal Injuries (Compensation) Acts. 7 and s. 10 under which damages are claimed.		I deal first with the claims pursuant to s. 10.	No evidence was put before me and no

claim seems now to be made as to s. 10(3), (a) and (b) of the Act which relate to funeral and medical expenses of the deceased.

However, lest I am wrong in this, or if there has been some oversight I will give liberty to apply on this issue.	Otherwise on the question of damages, I follow substantially the approach of Muirhead J. in Martin v Ferguson (unrep 10/2/84).

Plaintiff's widow's claim for solatium and loss of consortium - Ss. 10(3)(f) and (c).

His Honour Muirhead J. considered that "these items may conveniently be dealt with together to prevent overlapping and in accordance with the approach in previous decisions of this Court".	One of those decisions on which His Honour relied was Curator of Estates of Deceased Persons and Rozario v Fernandez (1977) 116 A.L.R. 445.	At p. 456 Ward J. says:-

"The present case being one arising from death and not injury, the loss of consortium was complete and, even if one excludes elements such as mental distress from being compensable elements of the consortium, many of the same elements obviously could be claimed under the· head of solatium pursuant to para (f) of sub-s. (3)."

In Mrs Hall's case she married the deceased on
25 September 1971.	She was born on 5 March 1953.	He was

born on 24 August 1951.	Hence she was 18 and he was 20 at the time of the marriage.		They had known each other for some two years previously and all the evidence points to a stable happy marriage.	She and the family followed the deceased to his various employments in outback stations and she adjusted to the isolation of that life and the various absences of her husband in the course of his employment with cattle.	She says:

"I	felt at first the isolation upset me a bit coming from a large family, but by the time we got to Alroy I'd decided that this was where I was going to spend the rest of my life so I may as well get in and enjoy it and accept the fact.	I was quite a lot settled at Alroy."

Mrs Hall described the marriage as "old fashioned in that he was the boss but that's how it was". It was plain that she felt no sense of resentment in that situation.	She gave her evidence well and with considerable restraint and dignity and I accept entirely the picture of a couple with the prospects of a long happy married life which was tragically terminated.	The result was much sorrow and loneliness on the part of Mrs Hall.	I accept her evidence (p. 146) that she was quite devastated at the time and for at least 2 years thereafter.		Many years later she formed an association with another man whom she presently does not intend to marry and I cannot see how it could be said that such association had any relevance to the devastation she

suffered in the first few years after her husband's death.

Muirhead J. in a somewhat similar case (Martin v Ferguson) of a happy marriage terminated while the parties were still young awarded the sum of $15,000 for solatium and loss of consortium.	In doing so he paid heed to previous awards of this court in Curator of Estate of Deceased Persons and Rozario v Fernandez (1977-
78) 16 ALR 445 : Bennett v Liddy 25 ALR 340 : Dilworth v Peko Wallsend Operations Ltd (unrep 18/12/81) : Parsons & Ors v Australian Telecommunications Commission & Ors (unrep 2/12/83).

Taking into account those authorities I consider that a fair sum in the circumstances of this case is $20,000.

Damages for solatium and loss of care and guidance for the children.	ss. 10(3)(f) & (e)(ll).

At the time of his death on 6 November 1978 the deceased's two children, Tanya Cherie Hall born 5 March 1972 and William Marsden Hall born 3 April 1974 were aged approximately 6½ and 4½ respectively.

Following, again, the approach of Muirhead J.
in Martin v Ferguson I treat these heads of damages i.e.

solatium and loss of care and guidance as interrelated although each having certain special individual aspects. I appreciate that such awards are normally dealt with by way of modest figures.	In Martin's case His Honour awarded a male child of 15 at the date of his father's death the sum of $4,000 under the composite heading and a female child of 13 at the date of her father's death the sum of $8,000 (which His Honour divided as to $5,000 for solatium and $3,000 for loss of care and guidance).	For two younger children aged 4 and 2 respectively at the date of their father's death His Honour considered it not appropriate to award solatium but he allowed $2,000 in each case for loss of care and guidance.

In the present case the evidence is clear enough that the children had a good and affectionate father to whom they were devoted and the fact that he was absent from time to time on his duties for periods of 2-3 weeks clearly did not lessen their devotion.	Mrs Hall speaks of the children getting up at 4.00 a.m. to have breakfast with him before he set out on his duties.
There is no doubt that his care and guidance would have greatly assisted their development although Mrs Hall has obviously put herself out to provide what they missed by his death and Tanya is doing well academically and hopes to proceed to tertiary education.	William has had some education problems and has slipped some grades but Mrs Hall says that when he applies himself he does well and

is keen on sport and talks about being a teacher in physical education.

In the circumstances I consider that Tanya should be awarded $5,000 for solatium and $5,000 for loss of care and guidance.	Although Muirhead J. felt it was not appropriate in Martin v Ferguson to grant solatium for a child of 4 I consider that the circumstances of William (at 4½) and his strong attachment to his father at the time warrants a sum of $2,000 for solatium and
$6,000 for loss of care and guidance.

Under these heads, therefore, the child, Tanya, should receive $10,000 and the child, William, $8,000.

Loss of household services customarily performed by the deceased s. 10(3)(d)

There is not much evidence of household services customarily performed by the deceased.	The reason is plain enough that the deceased's duties required him to work 7 days a week very often away from home for 2-3 weeks at a time.	Even when he was home he would leave to get to his work in the early hours of the morning.	Such activities left little room for any household services customarily performed by the deceased. The "old fashioned" approach accepted by the spouses obviously meant that the deceased did nothing of an

ordinary domestic nature such as cooking or washing - at least not customarily.	The evidence seems limited to his helping Mrs Hall to paint the house and to do "handyman" jobs required from time to time.

It appears to me that the evidence of this sort of assistance was stronger in Martin v Ferguson (where Muirhead J. allowed $7,000) than it is here.		That of course is no criticism of the deceased but merely reflects the consequence of his employment.	I consider that a lump sum of $3,000 would be appropriate.

Reasonable expenses that would be incurred for hire of home care for the children s. 10(3)(e)(l).

The only way in which this item is put is that Mrs Hall was working for some years at a "9-5" job which required her getting the children to school before she got to work.	That could be managed, although with difficulty, but the real problem was to have someone at home to meet the children after school.	With flexitime Mrs Hall was sometimes able to do this herself, but not always.	For one year therefore she took in two boarders at a reduced rate on condition that they were home each day to meet the children.	Mrs Hall says that because of this she charged the boarders a total of $50 per week rather than a total of $100 per week which would otherwise be a fair charge.		On this basis the cost to

her was $50 per week for this service or an annual cost of $2,500.	I think one should discount this figure because Mrs Hall herself was home to meet the children on occasions and Mrs Hall managed to arrange various camps for the children during holiday periods, so the services of the boarders would not be needed during such times.	I consider a fair sum under this heading would be $1,500.

Fast Economic Loss

So far as the deceased's notional earnings are concerned from date of death to date of trial i.e. from 6 November 1978 to 3 May 1988 those can be calculated in two ways.	Mr Forwood is a rural consultant and manager with wide experience in the cattle industry in the Northern Territory.	He produced the awards made relating to the pastoral industry in the Northern Territory between those dates and from that it was a relatively simple matter to calculate the potential increased earnings of the deceased had he remained employed in the capacity of head stockman during that time.	There is evidence from Mr J.W. Perryman, who was manager at Alroy Downs at the time of the accident.	Mr J.W. Perryman gives evidence of his own experience in the cattle industry which I accept as considerable and as competent. The deceased was employed as head stockman and consequently directly under the control of Mr J.W. Perryman.	Mr J.W. Perryman describes the deceased as a

very good head stockman.	From his evidence it is clear that the deceased carried out his many and varied duties most competently.	That evidence is supported by the evidence of Mr J.J. Perryman, the son of Mr J.W. Perryman.	Mr J.J. Perryman at the time was a jackaroo responsible to the deceased.	He described the deceased in warm terms both as to his personality and as to his professional competence.	This evidence allows me to draw with some confidence the inference that the deceased would have continued successfully in his employment.
Consequently the variations in award payments produced by Mr Forwood would have applied to the deceased.	Following this pattern Mr Johnston, a chartered accountant, has calculated the net income the deceased would have earned by way of wages and benefits and after payment of tax up to 3 May 1988.	That comes to a figure of $103,196.	(See
Ex	II  z11 )      •

However, there is evidence that the deceased received other benefits not within Mr Johnston's calculations.	These include rent-free accommodation, free electricity, use of motor vehicle and provision of food.	Mr Forwood has made various calculations as to the value of these to the household over the relevant period. These appear in Ex. 11 R".	The basis of the calculations appear in the evidence of Mr Forwood and in Ex. 11 R 11 and I accept them save for one error in the reckoning of foodstuffs for the last period - 17 weeks to 30 April

1988.	The figure given is $6,091 which is obviously a slip since the multiplication is by 52 when it should be
17.	The correct figure should therefore be 17 x $117.14
= $1,991.	The total figure therefore should be $38,802 not $42,902 as shown.	The ultimate result is shown in the following figures:

Electricity		4,879	
House Rental		32,724	
Use of Motor	Vehicle	19,953	
Foodstuffs		38,802	
Total		96,358	

Appreciating that these figures are not the precise mathematical calculations that they appear to be they seem to me soundly based and sufficient to accept as being as close an approximation as one can get.

The total loss to the household by the death of the deceased up to 3 May 1988 is therefore the loss of the deceased's income and the other benefits set out above i.e. $103,196 (income) plus $96,358 (other benefits) equals $199,544.

I mention here a matter which has caused me concern and that is the very long delay between the death of the deceased and the trial of this action.	I note that proceedings were not commenced until October 1981

but even then a delay of 6½ years ensued. I am satisfied that this delay was not caused by the court processes but there is nothing before me to explain it or, perhaps more importantly, to indicate where the fault, if any, lies.
Ultimately the case was undefended in the circumstances I have already set out and this means that I have had no submissions by the defendants that the plaintiff, by this delay, may have received a greater award of damages than she may have been entitled to had the matter been determined earlier.	Since, however, nothing appears adversely to the plaintiff on this issue I cannot do more than proceed on the material before me and accept the calculations to 3 May 1988.	I do not think, however, that, in the circumstances, it would be appropriate to extend those calculations further to the date of judgment.

A submission has however been made to me that there was every likelihood that the deceased would very soon have received promotion as manager either of one of the stations controlled by the defendant or, possibly, on some other station.	I have already mentioned the respect which Mr J.W. Perryman had for his ability and the evidence is that Mr J.W. Perryman had already recommended him as a manager for a property known as Avon Downs and all the indications were that he would have received that position.	(See Transcript p. 65).	I conclude that, had the deceased lived, he would have been offered and

accepted that post commencing about 1st January 1980. That would have entitled him to a higher salary of
$25,000.	Indeed somewhat higher salaries have been put to me but I consider the probabilities remain for the lower figure of $25,000 having regard to his untested experience in that post.	Plaintiffs' counsel have put before me certain figures on this assumption which would take the figure for loss of income from $103,196 to
$177,373 based on the deceased continuing as Head Stockman to 31 December 1979 then becoming Manager on 1 January 1980 at a salary of $25,000 per annum.	I consider that they are figures which should be accepted. Other benefits would, I assume, remain the same so that the total past economic loss becomes $177,373 plus
$96,358 equals $273,731.

From this figure should be deducted the cost of the deceased's support over the relevant period.	Bearing in mind that the deceased was frequently away from home on his duties and that, when he was, his food was supplied by the station, it seems to me that I should deduct no more than 25% from the above figure to represent the deceased's support.	That then produces a figure of $205,298.

As to apportionment of that figure between the plaintiff and children, plaintiffs' counsel, in the calculations supplied, has suggested 50% to the plaintiff

and 25% to each of the children.	I am prepared to accept this at $102,649 for the plaintiff and $51,325 for each child.	For reference I have marked the calculations supplied by counsel after final address as Ex. BB.

Future Economic Loss

There is nothing to show the deceased was not in good health at the time of his death.	His widow remains in good health and I accept that, except for the accident, both would in the normal course of events have attained 65 and that the deceased would have continued to work and support the children to age 18 and the plaintiff during his lifetime.	The actuarial figure produced (EX. AA) is the present value of an annuity of $1 per week of net loss on the joint life of a male born 24 August 1951 and a female born 23 July 1953	and ceasing on the attainment, by the male of age 65 or prior failure of the joint existence is $925.	Ex. "SS" is calculated, inter alia, on the interest rate of 3% per annum.	The evidence is that the deceased, had he remained in the pastoral industry, and that seems to have been the life for which he was most suited, and in which he expected to
continue - would have continued to receive the benefits by way of house rental, electricity and motor vehicle. Those figures are calculated in the statement submitted to me by counsel for the plaintiff using the weekly value

as estimated by Mr Forwood (Ex. R) and multiplying by
925.	For convenience I set them out here:-

House rental $103 p.w. x 925 Electricity $14.87 p.w. x 925 Motor vehicle $55.40 p.w. x 925

95,275
13,755
51,245

I am not certain how the total figure of
$47,018 for foodstuffs is arrived at by counsel.	The multiplication is obviously based on a weekly figure of
$50.80 x 925.	I assume this is based on a calculation that the children would cease to have the advantage of foodstuffs provided after they turned 18 and thereafter the needs of the household would be approximately halved from the latest value of $117.14 per week shown in Mr Forwood's calculations but some allowance made for the few years the children may remain in the family until they turn 18.	My calculations would have reached a slightly higher figure but the discrepancy is not significant so that I will accept the figure given of
$4i,018.	The total continuing benefits would therefore be $207,293 which, added to the calculation of future earnings $374,098 brings a figure of $581,391.	From that must be deducted a proportion attributable to the deceased's use and consumption.	counsel suggests this should be 25% on the same basis as past economic loss but that seems to me too low.	Muirhead J. in Martin v Ferguson took the view that after the children left

school the deceased would have utilised more of his earnings for his own support and I think it should be recognised that the deceased's share in the earnings and benefits would increase with the departure of the children.	As the children will depart very soon I think the proportion attributable to the deceased overall should be 40%.	To that I would add some deduction for contingencies.	As Professor Lunt points out in his book "Assessment of Damages" (2nd Edition) at pp. 300-302, there seems to be a rather pessimistic approach by the courts in these matters on the basis that unfavourable contingencies are more likely to arise than favourable ones.	That seems to be the general trend and in this case no doubt one should reflect at least on the uncertainties of the pastoral industry and the physical demands made on those in it, of which Mr J.W. Ferryman's evidence at p. 63-4 might serve as an example.	On the whole I think that a deduction of 5% for contingencies would be appropriate.	So that for the figure of future economic loss of $581,391 a discount of 45% brings that figure to $319,765.

Some apportionment of this figure should be made for the children.	The child Tanya is 16 but is continuing at school and provision should be made for two years.	On a rough approximation a further loss of support should be $4,000 per year taking as a guide the previous figure $38,185 as representing the total for _10

years previously.	Similarly the child William is 14 and although he may not presently have the academic attainments of his sister the likelihood is that he will need further education not necessarily in the higher education field but perhaps in the TAFE sector and it would be appropriate to allocate a sum of $4,000 per year for him also.	That gives a figure of $8,000 for Tanya and $16,000 for William.	On that basis the plaintiff should receive the balance of $295,765.

In summary therefore the damages should be:-

Plaintiff Widow

Economic loss to date of trial	102,649	
Future economic loss	295,765	
Solatium and loss of consortium	20,000	
Loss of household services	3,000	

Reasonable expenses for care of the children

1,500

422,914

Tanya

Economic loss to date of trial Future economic loss

51,325
8,000

Solatium and loss of care and guidance

10,000
69,325

William
Economic loss to date of trial Future economic loss
Solatium and loss of care and guidance

51,325
16,000

8,000

75,325

There will be judgment for the plaintiff, Virginia Margaret Hall in the sum of $422,916, for the plaintiff, Tanya Cherie Hall in the sum of $69,325 and for the plaintiff, William Marsden Hall in the sum of
$75,325.	In all cases the judgment is against the first­ named defendant. The first named defendant to pay the costs to be taxed in default of agreement.	The amounts due to the infant plaintiffs to be paid into court pending an order as to their investment with liberty to apply on this question.

Liberty to apply on question of medical and funeral expenses of the deceased.