Aafjes v Kearney
8 ALR 455(Judgment by: Barwick CJ)
Between: Aafjes
And: Kearney
Judges:
Barwick CJMcTiernan J
Gibbs J
Stephen J
Mason J
Subject References:
Workers' compensation
Dependants of a worker
Worker
Death of in course of employment
Employer liable to pay compensation to dependants
Whether child of deceased employee wholly or partially dependent on deceased worker
Legislative References:
(NSW) Workers' Compensation Act 1926 - s 7(1)(a); s 8(1)
Case References:
Potts v Niddrie and Benhar Coal Co Ltd - [1913] AC 531; 82 LJ (PC) 147, applied
Kauri Timber Co (Tas) Pty Ltd v Reeman - [1972-73] ALR 1266; 128 CLR 177
Farmer v Cotton's Trustees - [1915] AC 922, distinguished
Judgment date: 3 March 1976
Melbourne
Judgment by:
Barwick CJ
Peta Kearney, a child of a deceased worker who lost his life in the course of his employment, applied to the Workers' Compensation Commission of New South Wales for compensation on the footing that she was wholly dependent on her father for support at the time of his death. The Commission found that she was so dependent and made the appropriate award.
The facts which the Commission accepted were that the deceased and the mother of the child were divorced, the mother having custody and the father an obligation by order of the Supreme Court of New South Wales to pay a sum of $6 per week towards the maintenance of the child. The father made payments under this order but not regularly: indeed, at times, he failed to pay at all. The child's mother remarried. The child lived with her in the home of her stepfather, who made no financial contribution to her maintenance, though he allowed her to lodge in his home. Her mother paid for the child's food, clothing, medical, dental and educational needs out of the money received by her from the father and, as well, herself provided the cutlery, cooking utensils, bedding and such-like which were used by the child.
After a period in the year prior to his death during which the father had failed to make maintenance payments, an agreement was made between the father and the mother that the father should pay $12 per week through the Children's Court at Manly for maintenance of the child. Apparently the father was performing his obligations at the time of his death.
There were further facts, though for my part they would seem to have small significance. The mother at the date of the death of the father was employed by her husband to do secretarial work at a salary of $20 per week. But, by the time the application for compensation came on for hearing, divorce proceedings between the mother and her husband were on foot.
At the instance of the present appellant, Aafjes, the employer of the deceased, the Commission, pursuant to s 37(4)(b) of the Workers' Compensation Act 1926 (NSW) as amended, stated a case for the opinion of the Supreme Court. The substantial question asked was whether the Commission erred "in law in holding that the applicant was wholly dependent for support upon the deceased worker at his death".
The Supreme Court, by majority, answered this question in the negative, rejecting the contention of the appellant that the child, the now respondent, was dependent on her mother, or alternatively, on her stepfather, and that that dependence precluded a finding that she was wholly dependent on her father for support.
The Supreme Court, both the majority and the minority, canvassed a number of authorities. But, for my part, the question of dependence or no dependence, whole or partial, is a question of fact. It has been said to be so in many authorities by distinguished members of the House of Lords. It cannot be turned into a question of law by the citation of authorities. The only question of law which can emerge in a case such as the present is whether there was any evidence on which the Commission could conclude that in fact the respondent was wholly dependent on her father for support. In this respect, I respectfully agree with the words of Viscount Haldane LC in Potts v Niddrie and Benhar Coal Co Ltd [1913] AC 531 at 531 at 536-8:-
"I am of opinion that the sheriff-substitute could properly hold that these children were wholly dependent. They had the right to look to their father for maintenance, and it is plain that those in whose care they were did so look, and endeavoured as best they could to make the right effective. The children had no other means of support which could render their position one of partial dependence. It was only by assistance from their brothers, assistance which might have ceased at any moment, that they were saved from actual want. The father was under an obligation to maintain them which had already been enforced, and which might have been enforced again at any moment had he lived. Under these circumstances I think that the younger children could be held to be wholly dependent within the meaning of the Act of Parliament. The case is quite different from that of New Monckton Collieries Ltd v Keeling [1911] AC 648, recently decided by this House. There, there had been what was tantamount to an abandonment of the wife's right. She had left her husband more than twenty years before his death, and had virtually given up looking to him for support for herself and her children. Here the wife had kept her right alive, and was apparently only waiting for the opportunity to enforce it. The obligation of the father remained in existence. It was a valuable asset, and she and the children had nothing else that was reliable to look to.
The Lord Justice-Clerk says in his judgment that the true question is not, Had the applicant a legal right to maintenance by the deceased? but, Was the applicant actually receiving support from one who was under an obligation to give support, and who was also the servant of the master whom it is proposed to make liable in compensation?
My Lords, I cannot agree with this view of the true question. I agree that a mere legal right may not, in certain circumstances, be sufficient. It was held insufficient in the case before this House which I have quoted. The long period of desertion by the wife so qualified it that, as Lord Atkinson pointed out, there was no evidence on which the arbitrator could properly find the fact of dependency.
Here I think there was evidence on which he could find that fact, and if this be so the finding of fact is conclusive. The true question in the present case is, in my opinion, whether there was, as one of the facts to be taken into account, an effective and valuable legal right. If there was such a right, and there was no legal difficulty in the way of enforcing it, then the mere fact that a want of opportunity to resort to it, which might have proved only temporary, had reduced the mother and children for the time to living on charity, cannot affect the conclusion that by the father's death they lost something on which they could depend.
I wish to add that I have, since the argument, examined the reported authorities. There has been a good deal of divergence in judicial opinion as to what dependency means. There has been a disposition to draw highly refined distinctions, and the decisions arrived at and the reasons for them have not been always consistent. I think that this tendency and its consequences will be lessened if it is borne firmly in mind that the question is always primarily one of fact, on which the conclusion of the arbitrator ought only to be set aside if it is apparent that there was no evidence to support it, or if error in law appears on the face of it. I am of opinion that this is what the Act of Parliament has laid down as the principle to be followed, and that the intention therefore was to confine the power of review by the Courts within the narrow limits I have indicated."
With due respect, I commend this view, one which I hold strongly myself, to those who are asked such a question as the question asked in the present case stated. If that view is followed, certainty and early finality in these matters will be advanced, whereas if it is not, unnecessary and avoidable subtlety and complexity will be further introduced into this area of the administration of the law to the great disadvantage of those for whose benefit this legislation was designed.
In my opinion, the Commission was clearly entitled to hold on the material before it that the respondent was wholly dependent for support upon her father. That material afforded evidence of that fact and no principle of law precluded the conclusion. In that connection, I would express my dissent from the view that because "the facts are clearly stated" that "the question as to whether on facts found which legal category is the appropriate one is ... a question of law". On the contrary, the conclusion of dependence is one of fact and not the assignment of a situation to a legal category. The view from which I express my dissent would turn every conclusion of dependence into a question of law. But that would clearly be erroneous and contrary to every decision of high authority, including Potts v Niddrie and Benhar Coal Co Ltd, supra.
This is not a case where in the path to the conclusion of dependence there is need to construe an act or instrument, though even in that case, there is much to be said against the view expressed by Lord Parker in Farmer v Trustees of the late William Cotton [1915] AC 922 at 932. That case is no warrant, in my opinion, for treating the conclusion of dependence in this case as other than a question of fact.
For these reasons, I would answer the relevant question in the negative and dismiss the appeal.