The late Mr Norris died from liver disease in 2011, at the age of 52. He was survived by his wife, Dr Norris, and their two teenage sons. In 2013 Dr Norris sued Dr Routley, her late husband’s treating specialist, who accepted that his negligent failure to refer Mr Norris for a liver transplant was a cause of his untimely death.

At first instance, the trial judge awarded Dr Norris damages in sum of $21,757. Her appeal challenged the deduction for personal consumption by her deceased spouse made by the trial judge and sought to lead evidence to demonstrate that the Luntz table (Table 9.1) was based on out-of-date statistical data.

Mr Norris was a stay at home father, and worked casually as a gardener and landscaper. He undertook the majority of the housework and was the primary carer for their sons. At the time of his death, Dr Norris was establishing her own specialist medical practice and it was held that if he had not passed away, Mr Norris would have commenced working as her practice manager.

Dr Norris contended that the trial judge erred in his failure to depart from the Luntz table to determine what would have been the deceased’s consumption of combined household income in the particular circumstances of this case. The trial judge had found that there was no basis to depart from the consumption percentages set out in Table 9.1. He found that the Norris household was a normal one and dismissed Dr Norris’ submission that, because teenage boys consume more than average, Mr Norris’ proportion of household consumption should be reduced.

On appeal, Dr Norris sought to adduce new evidence in the form of the affidavit of Michael Lee, a chartered accountant who authored papers (with Ms Julia Bossert) which demonstrate statistical data, more recent than that used in the Luntz table, to show that as a household income increases the level of personal consumption of the members of the household, as a percentage of the total, decreases. Dr Norris also sought to adduce an affidavit of Professor Luntz confirming his intention to include the revised percentages provided by Mr Lee in the next edition of his book.

In dismissing the appeal, the Court held that there is no legal rule which prescribes how a party may seek to prove the share of any benefit that would have been consumed by the deceased during their lifetime. Whilst Table 9.1 of Professor Luntz’s book had been described in other decisions as a “standard reference point”, proof of the deceased’s likely consumption had he or she lived is left to the evidence as presented at trial. The Court confirmed that Table 9.1 enjoys no special legal or evidential status.

The Court also noted that in order for the appeal to be upheld, actual error needs to be shown before the decision will be reversed. It noted that it was open to Dr Norris to seek to prove the appropriate deduction for Mr Norris’ likely expenditure had he lived by a number of means, including those ranging from depicting the deceased as a frugal, shabbily dressed, selfless provider for the family to more sophisticated evidence, based on Household Expenditure Surveys of the ABS. However, she led no evidence at all about what overall household expenditure was when Mr Norris was alive or what proportion of the expenditure was attributable to any particular member of the family. At trial the expert engaged by Dr Norris had based his calculations on the Luntz table with only minor amendment.

The Court of Appeal concluded that even if it were to prefer a different figure to that adopted by the trial judge, there was no error of principle in the approach that the trial judge took in accepting the Luntz table given that it was accepted by the only expert who gave evidence before him. The appeal was therefore dismissed, as was the application to adduce fresh evidence. On this point, the Court of Appeal noted that the evidence now sought to be relied upon by Dr Norris would have been available to her at the time of trial.

Whilst this appeal was unsuccessful, the updated information giving rise to the Lee and Bossert papers will soon be the preferred method adopted for calculating dependency in fatal accident claims. We have already noticed Plaintiff solicitors adopting these figures for their calculations of damages and this will no doubt only increase with time. As referred to in this decision, Professor Luntz has also stated that he will include the new figures in the next edition of his text book.

Details of the Lee and Bossert tables for personal consumption expressed as percentage of after tax household income may be found here.

To read the full decision in Norris v Routley [2016] NSWCA 367, click here.