Court of Appeal

Perry v Killmier & Anor [2014] QCA 064 (13/10363) Muir and Gotterson JJA and Applegarth J 4 April 2014

Full-text: QCA14-064.pdf

Catchwords

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where the appellant’s partner was killed in a collision between a vehicle driven by her (the deceased) and a vehicle driven by the first respondent – where the appellant alleged in proceedings commenced by him that he and the deceased were living together as husband and wife at the time of her death – where the appellant claimed relief including $857,299 damages for loss of dependency resulting from the first respondent’s breach of a duty of care – where the primary judge found that the accident had been caused by the first respondent’s negligence and that the deceased’s negligence had contributed to the accident to the extent of 30 per cent – where the appellant failed on a dependency claim brought under s 18 of the Supreme Court Act 1995 (Qld) – where there was a delay between the primary judge’s judgment and publication of reasons – whether the primary judge erred in finding that the appellant was not a de facto spouse of the deceased – whether forensic advantage was lost in hearing the evidence due to the delay between the hearing and the delivery of judgment – whether the primary judge gave adequate reasons for judgment

Summary Notes

General Civil Appeal – Insurance Law – Claim for Loss of Dependency – where the appellant’s partner was killed in a collision between a vehicle driven by her (the deceased) and a vehicle driven by the first respondent – where the appellant alleged in proceedings commenced by him that he and the deceased were living together as husband and wife at the time of her death – where the appellant claimed relief including $857,299 damages for loss of dependency resulting from the first respondent’s breach of a duty of care – where the primary judge found that the accident had been caused by the first respondent’s negligence and that the deceased’s negligence had contributed to the accident to the extent of 30 per cent – where the appellant failed on a dependency claim brought under s 18 of the Supreme Court Act 1995 (Qld) – where the appellant and the deceased had not lived together as a couple on a genuine domestic basis for a continuous period of at least two years ending on the deceased’s death – where the appellant, in order to establish the de facto relationship relied on s 18(2)(a)(ii) of the 1995 Act – where the primary judge erred in attributing too great a role in his determination to financial and property matters – where a couple’s degree of financial interdependence and the manner in which they decide to hold property does not necessarily say a great deal about whether they are living together as a couple on a genuine domestic basis – where what is to be determined is not the existence, imminence or even the likelihood of marriage but whether the deceased and the appellant were de facto partners – where in determining whether a person is a “de facto partner”, the focus must be on whether by reference to all relevant circumstances the person and another “are living together as a couple on a genuine domestic basis but who are not married to each other or related by family” – where the deceased and the appellant were living together as a couple on a genuine domestic basis at the date of the deceased’s death and that the primary judge erred in not making this finding – where the evidence also establishes that the circumstances of the couple’s de facto relationship show “a clear intention that the relationship be a long term, committed relationship”. Appeal allowed. Judgment given and order made of the primary judge be set aside. The second respondent pay the appellant $280,686.70 with costs on the indemnity basis.