A tale of two boys: – Geoffrey (Isaac) Mather by his next friend Elke Lunn v Insurance Commission of Western Australia [2025] WADC 78
On 1 November 2020, Sabine Mather was killed in a motor vehicle accident caused by the negligent driving of her husband, James Mather. James Mather also died in the accident. The couple left two young sons, Jethro (7) and Isaac (5) (the boys), who thereafter lived with and were cared for by their maternal grandparents. The Insurance Commission of Western Australia (ICWA) admitted liability under the Fatal Accidents Act 1959 (WA) for the negligent driving of James Mather. The only issue to be determined by the Court was the actual assessment of damages for loss of dependency and services, in other words, how much should the boys be compensated.
By way of summary, in approaching the assessment of damages in this case, the Court considered the following issues were required to be determined:
- Should the damages for Sabine’s wrongful death be calculated on a hypothetical assumption that from the date of her death she would be a sole parent or on the basis that that she would have been a dual parent providing services and income in a two‑parent household?
- But for her death, what income would Sabine likely have earned from the date of accident to the date of judgment? This requires an assessment of whether she would have worked full‑time hours from the date of accident onwards had she not died, her likely pay increases and her likely rate of promotion at work.
- In determining Sabine’s future lost earnings so as to determine the boys’ loss of dependency, should her personal consumption factor assume a single or dual income household?
- Do the boys require an extended period of financial dependency or care, supervision and domestic services due to their pre-existing medical conditions and if so, until what ages would Sabine have provided the boys with financial support and domestic services?
- What is a reasonable allowance for the number of hours for past care, supervision and domestic services that Sabine would have provided to the boys from date of accident until the date of judgment?
- What is a reasonable allowance for the number of hours for future care, supervision and domestic services that Sabine would have provided to the boys from the date of judgement?
- Should the total allowance for care, supervision and domestic services be reduced because James’ negligent driving caused Sabine’s death? If so, by what percentage or other method should this reduction be calculated?
- Should the boys’ damages be reduced for general contingencies?
Damages were assessed by the Court on the basis that Sabine Mather would have been a sole parent from the date of her death after having rejected ICWA’s argument that the assessment should reflect a two-parent household or that the father’s hypothetical services should reduce damages. The court assessed the combined damages for the boys to be $2,774,947 by individually awarding Jethro the sum of $1,272,998.50 and Isaac the sum of $1,501,948.50. A further order was made that a trustee be appointed to manage the boys’ awards.
Claims under the Fatal Accidents Act compensate for the loss of the chance of receiving pecuniary benefits from the continuance of the deceased’s life. This loss is assessed at the moment of death, using known facts to avoid speculation. Therefore, at the moment of Sabine’s death, it was already known that James had also died, leaving the boys orphaned. It would have been contrary with the principle to reduce the boys’ damages by reference to services the negligent parent might have provided or assess the loss as though a two-parent household would have continued.
The court held that Sabine would have provided all financial support and domestic services as a sole parent, thus justifying a finding that the boys’ learning and behavioural conditions extended dependency and increased care needs. Whilst the grandparents generously cared for the boys, this did not reduce their damages, as voluntary support is not a compensable “gain”.
This is an important Western Australian authority on damages in accordance with the Fatal Accidents Act where a negligent act kills both parents, and the negligent or at fault parent also dies. This case also confirms that damages should focus on the actual consequences of death, not artificial reconstructions of pre-death household roles. This case reinforces that replacement care costs may exceed the value of services previously provided without offending principles and good morals.
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