In assessing damages under the Compensation to Relatives Act 1897, the Malec v Hutton principle requires that the chance of the marriage not surviving must be measured and brought into account as a discount, even where the trial judge finds on the balance of probabilities that the marriage would have survived. Similarly, the chance that a deceased would have changed business practices (such as abandoning bulk billing) must be assessed. Section 3(3)(b) of the Act does not preclude a claim for lost superannuation entitlements; it only prevents deduction of certain benefits, and superannuation payments already received reduce the loss rather than being caught by the non-deduction provision. Pre-judgment interest at Supreme Court rates remains appropriate notwithstanding the Full Federal Court's holding in Whitaker that such interest is not taxable income.
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