Yesterday Justice James D. Henry of the Supreme Court of Queensland handed down his decision in Emily Kepa, for and on behalf of the estate and dependants of Frank Billy, deceased & ors v Lessbrook Pty Ltd (In Liquidation), a case resulting from the crash of a passenger aircraft near Lockhart River in far north Queensland in early May 2005.

In many respects Frank Billy’s case is a routine judicial decision on the liability of in a claim in respect of a death – in this case five deaths – bought under the Civil Aviation (Carriers’ Liability) Act 1964 (Qld), s. 5 of which applies the provisions of pt 4 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth).

But this case is important – and distinctive – in at least one respect. It is the first time that I am aware of that an Australian Court has considered – and granted – claims for the loss of traditional hunting and fishing services provided by a deceased person to his dependents.

There have been cases where the owners of traditional Aboriginal designs have successfully claimed for breach of copyright for the unlawful use of those designs, see for example: Bulun Bulun v R & T Textiles Pty Ltd (1998) 41 IPR 513 and George M*, Payunka, Marika & Others v Indofurn Pty Ltd (1994) 54 FCR 240 (“George M*, Payunka, Marika & Others v Indofurn Pty Ltd (“the Carpets Cases”).

In his assessment of losses to the plaintiff’s in Frank Billy’s Case, Justice Henry first considered the uncontroversial issue of recovery for the loss of so-called “domestic services”:

[23] Section 35(8) provides that in awarding damages the court is not limited to the financial loss resulting from the death. This means the loss need not be a monetary loss and may include future expected financial benefits and services. It may for instance include the value of services the deceased would have provided around the home [par. 23].

…

[32] The exercise of valuing lost services is theoretical and not premised on a requirement that they are in fact replaced because the fact they may not be replaced does not mean they were not a material benefit.

[33] It is well settled that the loss of services commonly encountered in the setting of a suburban household, such as household maintenance and child care, is compensable.

He then went on to examine issues not before – to my knowledge – examined in similar cases in this country; how to quantify a loss of traditional food-gathering services:

Hunting and gathering

[37] A more difficult question arising in these proceedings is whether and to what extent the hunting and gathering activities of a deceased are compensable as a lost service. Evidence was lead of deceased having regularly hunted crayfish, fish, turtle and dugong and in turn supplying their families with food from the catch.

The defendant opposed an award of losses for those services, submitting that if made it should be made on the basis of the loss of material benefit to each family and that any such losses would in any event have been mitigated by members of the local community who would share their catch with the families of the deceased.

Justice Henry had little sympathy for that argument, considering it inconsistent with the High Court of Australia’s case of Nguyen v Nguyen (1990) 169 CLR 245 and that the defendant’s submission ” … involves a somewhat more optimistic outlook than is warranted by the evidence but in any event it wrongly focuses upon need when it is loss that is relevant.”

In two important paragraphs, Justice Henry sets out what he considers the nature of the loss of services to each family arising from their unique cultural, economic and geographic circumstances:

[40] What then has been lost? It is not food on the table acquired with income. If it were, it would be subsumed within the loss of income component. Nor should the loss be confused as having a value necessarily commensurate with the purchase price of seafood at a fish shop in the context of an urban lifestyle in which most food is bought.

[41] The loss is not the loss of food on the table per se. It is the loss of food on the table provided by the services of the deceased as part of a way of life; that is, it is the loss of a service. It is likely that service was in any event the only realistic option in that remote location by which such food could be readily procured and provided. However, the service was carried out in accordance with long standing custom, albeit with modern adjustments, such as outboard motors. Hunting and providing like this was a way of life. It bears no comparison to the occasional fishing trip to which some urban dwellers recreationally aspire. To value the provision of this service by reference to the purchase price of fresh seafood from a hypothetical (non-existent) local fishmonger is to value it only by reference to the urban way of life. It is in effect to say the only compensable method of provision of seafood in any way of life is the use of money to buy seafood. It is effectively to deny to the family served the intrinsic worth of a service that is integral to their way of life.

Justice Henry refers briefly to the role of the deceased persons as parental educators, and while that part of the claim was unsuccessful in this instance, he does provides some guidance as to how such evidence could be provided in future:

Guidance and training

[45] … the plaintiff submits that part of the loss also involves the loss of parental education. In particular, it is submitted the loss includes the value of a deceased imparting traditional local knowledge and skill needed to fish to a deceased’s children when they would accompany a deceased fishing. This submission finds support in the authorities, however, it is irrelevant given that ultimately none of the evidence in the five cases identified any delineation between general time spent caring for children by the deceased and time spent specifically educating them in traditional fishing and hunting.

Justice Henery determined three categories of services that would be assessed in the claims: domestic assistance – including internal and external housework; child care – relating to time spent taking care of the children; and fishing and hunting, which relates generally to the provision of seafood.

There are many complexities involved in cases of this kind that I cannot touch on here.

If your are interested I suggest you examine these for your self in the full judgment here.

Of particular interest to me is how Justice Henry assessed the evidence from the plaintiffs and their witnesses.

Credibility of information relied on

[71] Much of the information needed for the assessment process came from the plaintiffs’ witnesses, including the content of their witness statements provided pursuant to a pretrial direction and exhibited largely in lieu of evidence in chief.

The defendant submitted that the plaintiffs’ witness statements were unreliable, as most of the witnesses were unable or unprepared to respond to important questions asked in cross-examination.

Justice Henry rejected that submission, considering that:

[72] … I detected no such general trend of witness inability or unwillingness to answer questions. There were times when the indigenous witnesses of the plaintiff appeared to be slow in answering questions or seemed confused by the wording of questions. These are traits well known by the court as common to many indigenous witnesses from remote communities. Eliciting information from such witnesses is difficult enough for the purposes of taking a written statement. However, in a courtroom it requires particular patience and the use of questioning genuinely rather than superficially calculated at actually obtaining information. The cross-examination in the case was entirely courteous and proper, but … it was not of a nature likely to have obtained significant amounts of detailed information from such witnesses.

[73] The examination and cross-examination of the witnesses in court did not, in the general sense asserted by the defendant, indicate the information provided in the witness statements ought be regarded as unreliable.

In regard to damages I note that s. 31 of the Commonwealth Act limits the liability of a domestic carrier to the amount of $500,000 in respect of each passenger – so while Justice Henry has considered that awards greater than that amount were due in most cases he was bound by that section to award the lower statutory maximum.

It is useful to examine Justice Henry’s reasoning behind each award, particularly in relation to the evidence provided about the nature, skill and extent of each person’s hunting activity. Quantifying the assessment of the various losses in these matters is a complex and tortuous task and here Justice Henry devotes 51 or so of the 74 page judgement to the assessment and consideration of the quantification of the losses and their apportionment between the various beneficiaries.

Justice Henry found for each of the five plaintiffs and awarded the following amounts by way of damages:

Frank Billy:$772,728.50* – reduced to $500,000 by the operation of s. 31.

The traditional knowledge and services component of the award to Frank Billy’s descendants was quantified in the following manner by Justice Henry:

[146] In respect of hunting and fishing, the service ought be valued at $25 per hour given the special skill involved. However, allowing for the full time that Frank Billy would be away hunting and fishing would not reflect the evidence that some component of the catch was distributed to persons who are not dependents and thus some component of the time spent was not attributable to servicing the dependents in this claim. To take into account those features, I will discount the time spent by 20 per cent to 6.4 hours per week. This equates to $160 a week, which is by no means a disproportionate outcome in the circumstances.

[147] Allowing 6.4 hours a week at $25 an hour, that is, $160 per week, for a period of 387 weeks yields a sum of $61,920.

Fred Bowie: $756,327.23* – reduced to $500,000 by the operation of s. 31.

The traditional knowledge and services component of the award to Fred Bowie’s descendants  was quantified in the following manner by Justice Henry:

[210] Fred Bowie would hunt for seafood and fish, supplying the household with catches of fish, turtle, dugong, crabs and crayfish that could last for up to a week or longer. He would fish, if not every weekend, every second weekend, sometimes staying out overnight. On some occasions he would fish twice on the same weekend. Florence Kepa’s estimate of the amount of time he spent fishing, on average, was eight hours per week.

[211] The plaintiff claims the service ought be valued at $25 per hour, given the special skill involved. As with Frank Billy, I agree that is a reasonable approach. I will discount the time spent hunting and fishing per week to make some allowance for the inevitability that Fred Bowie was himself a beneficiary of some of the time spent. However, I will not discount it to the same extent as with Frank Billy, because his discount also allowed for the fact that some component of the time was attributable to servicing persons beyond his household. There is no evidence in respect of Fred Bowie that some of his catch would be supplied to persons beyond his household. In the circumstances, I will discount the time spent by 10 per cent to 7.2 hours per week. Allowing 7.2 hours a week at $25 per hour, which is $180 per week, for a period of 387 weeks yields a sum of $69,660.

Mardie Bowie: $388,255.20

The traditional knowledge and services component of the award to Mardie Bowie’s descendants was quantified in the following manner by Justice Henry:

[284] Mardie Bowie would have at least one day fishing every second weekend and her catch would be used by the family for family meals. Francis Bowie estimates she spent four to six hours fishing for the family each week. Adopting the middle of that estimate, namely five hours, there should be some allowance made for the fact that on occasion Mardie Bowie’s ill health would prevent her fishing. Some allowance should also be made for the fact that some component of the catch would have been distributed to Dyle and, thus, some component of the time spent was not attributable to servicing the dependents in the claim. To allow for those features I will discount the time spent by 25 per cent to 3.75 hours per week.

[285] The plaintiff submits generally for Mardie Bowie’s contribution to services to be assessed at $20 per hour. That is, it was not submitted Mardie Bowie’s level of fishing expertise warranted a higher amount per hour as was adopted in respect of the two claims considered above. That is reasonable given the limited evidence about this aspect of Mardie Bowie’s activity.

[286] Given the common hourly rate it is unnecessary to split the calculation of housework services compared to provision of fish. The total hours are 15.75 hours per week (12 + 3.75).

Helena Woosup: $633,239.80* – reduced to $500,000 by the operation of s. 31.

The judgment contained no information about Helena Woosup’s traditional hunting activities.

Gordon Kris: $646,238.49* – reduced to $500,000 by the operation of s. 31.

The traditional knowledge and services component of the award to Gordon Kris’s descendants was quantified in the following manner by Justice Henry:

[386] Gordon Kris would hunt for seafood, supplying the household with catches of crayfish, fish, turtle, turtle eggs and dugong. The product of the fishing expeditions would be shared not only with his household but with his adoptive parents, his natural parents and also the family who looked after Maryanne. He would also hunt for pig and share the pig with family. While the evidence on the topic lacked some precision, I infer the amount of time Gordon Kris spent fishing and hunting was, on average, about eight hours per week.

[387] The plaintiff claims that in respect of hunting and fishing, the service ought be valued at $25 per hour given the special skill involved. As with the cases relating to Frank Billy and Fred Bowie, I accept that is a reasonable approach. The evidence suggests the only non-dependents who regularly received a share of the catch were Gordon Kris himself and, more vaguely, those who cared for Maryanne. In the circumstances, only a slight discount of the eight hours a week is required to allow for non-dependents receiving a share of the catch. I will apply a discount of 10 per cent, giving rise to 7.2 hours per week.

[388] Allowing 7.2 hours per week at $25 per hour gives rise to the sum of $180 to be apportioned as between those dependents who did share in the catch, namely Elizabeth Stephen, Ruby, Fanny, Emma, Fredricka, Rim, the deceased’s biological parents and Maryanne. That apportionment between nine people gives rise to $20 each per week.

[389] In respect of Elizabeth Stephen, allowing six hours per week for domestic services at $20 per hour yields $120 per week. Combining that figure with her weekly amount in relation to the provision of fishing and hunting services of $20 gives rise to a weekly total of $140. An allowance of that amount for a period of 387 weeks yields the sum of $54,180.

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