Catastrophic Accidents

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

BAKER -v- LOCK [2018] WADC 48

The plaintiff, Mr Jesse Baker (Mr Baker) visited Mr Robert Lock (Robert) at his residence (premises) to discuss and pay for repairs that Robert had agreed to make to Mr Baker’s motorcycle. Whilst the two men and another man, were seated in a rear shed at the premises, Robert lit a cigarette lighter proximate to an open paint thinners tin or drum causing an immediate explosion and consequent fire which consumed the shed. All three men suffered burns.

Mr Baker sued William and Lynette Lock, parents to Robert (Mr and Mrs Lock), as owners of the premises by alleging that they owed him a duty of care, breached that duty and caused his injuries pursuant to the Occupiers Liability Act 1985 (OLA).

The issues for determination were as follows:

1. Was Mr Baker injured in the explosion and fire at the premises? 

The Court concluded that “… I [t was] am satisfied that Mr Baker suffered serious burns as a direct consequence of the explosion and fire caused by Robert lighting a cigarette lighter which ignited vapour from an open thinners drum in the rear shed of the premises…” 

2. Did Mr and Mrs Lock occupy the premises pursuant to the OLA or were they landlords at the relevant time? 

The Court found that it was “… satisfied on all of the evidence that Mr and Mrs Lock left Perth and agreed with their son Robert and daughter Ms Lock that they would stay in the premises…”, thus not being occupiers but landlords to Robert.

3. If Mr and Mrs Lock were occupiers or landlords, what, if any, was the statutory duty of care they owed to Mr Baker?

The Court indicated that it found the “… arrangement between Mr and Mrs Lock and Robert…was a periodic verbal tenancy agreement where Mr and Mrs Lock were the landlords and Robert and Ms Lock the tenants…”, hence Robert had a duty of care as occupier of the premises to all lawful entrants. 

4. Was there any other common law duty of care they owed to Mr Baker? 

The Court concluded that “Although Mr and Mrs Lock owed Mr Baker a common law duty of care as landlords due to an invitee to the premises, their duty did not extend to the danger created by Robert.  Mr and Mrs Lock owed Mr Baker no other common law duty …”

Although Mr and Mrs Lock owed a duty of care to Mr Baker pursuant to the provisions of the OLA and also at common law, those duties had no application in this case.” Because even if Mr Baker was able to establish duty and breach as pleaded, none of those breaches caused his injuries.  It was not the storage of flammable substances in a shed to which visitors had access that caused the explosion. Rather the explosion was caused by Robert introducing an ignition source proximate to an open thinners drum. It follows that Mr Baker’s claim against Mr and Mrs Lock was dismissed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.