The price of a hunter-gatherer’s services: Frank Billy’s case

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.

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Categories: Animals, Indigenous land management, Northern development, Some places I've been, The Law, The Northern Myth

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  1. You can see the MSM’s take on this matter here – for The Australian: (copy the header and Google it) and on the ABC Qld here:

    by Bob Gosford on Oct 13, 2012 at 4:21 pm

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