: Justice for dependents of Lockhart River plane crash victims

Justice for dependents of Lockhart River plane crash victims

Kate Galloway

In Emily Kepa, for and on behalf of the estate and dependants of Frank Billy, deceased v Lessbrook Pty Ltd (In Liquidation) [2012] QSC 311 compensation was awarded to the dependents of five passengers killed in the 2005 Lockhart River plane crash. The decision is notable for its approach to issues affecting Aboriginal and Torres Strait Islander Australians.

Compensation often covers loss of services that are ‘commonly encountered in the setting of a suburban household, such as household maintenance and childcare’ [33]. In this case the claim included traditional hunting and fishing, but the defendant argued for compensation for the price of the food alone. The court found instead that the loss was ‘loss of food on the table provided by the services of the deceased as part of a way of life’ [41], pursuant to ‘an activity requiring special skill’ [42] and could not be equated to the ‘purchase price of fresh seafood from a hypothetical (non-existent) local fishmonger’ [41]. On this basis the court awarded $25/hour compensation for this service — commensurate with the wage of a qualified carpenter.

The defendant sought a significant discount to the deceased’s projected income to allow for ‘lower life expectancies and higher incidence of health problems of Indigenous persons.’ This was rejected as ‘Indigenous persons form part of the broader overall population base from which general statistics about health and longevity are drawn… [T]hose statistics ought not be disregarded merely because a case involves Indigenous persons.’ [66]

Finally, in finding the (Indigenous) witnesses credible, the court acknowledged ‘traits well known by the court as common to many Indigenous witnesses from remote communities’ [72]. While courteous, the ‘cross-examination…was not…likely to have obtained significant amounts of detailed information from such witnesses’ [72] signalling judicial recognition of the role of cross-cultural factors in court process.

KATE GALLOWAY teaches law at James Cook University.

(2012) 37(4) AltLJ 289
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