Aafjes v Kearney
8 ALR 455(Judgment by: Gibbs J)
Between: Aafjes
And: Kearney
Judges:
Barwick CJ
McTiernan J
Gibbs JStephen 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:
Gibbs J
The facts of this case are set out in the judgment of my brother Mason which I have had the advantage of reading. I agree with him that this appeal must be dismissed.
The matter came before the Court of Appeal by way of a case stated by the Workers' Compensation Commission of New South Wales under s 37(4) of the Workers' Compensation Act 1926 (NSW), as amended. The stated case raised for the decision of the court a number of questions which, upon analysis, may all be reduced to one: Did the Commission err in law in holding that the respondent was wholly, rather than in part, dependent for support upon the worker (her father) at the date of his death? The disadvantage of the procedure for which s 37(4) provides in a case such as the present is that the court is called upon to consider whether the alleged error is one of law or of fact - an inquiry of a sterile and technical kind but frequently productive of disagreement. It is well settled that the question whether there is any evidence to support a challenged finding - in this case, that the respondent was wholly dependent on the deceased worker - is one of law. If there is no evidence to support a finding, there has been an error of law. Moreover, there will be an error of law if the Commission has acted "upon a view of the facts which could not reasonably be entertained" or, in other words, if "the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal": Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 at 29, 36; [1955] 3 All ER 48 . For, as Lord Radcliffe said in that case ([1956] AC at 36; [1955] 3 All ER at 57):
"I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination, or as one in which the evidence is inconsistent with, and contradictory of, the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test. For my part, I prefer the last of the three, since I think that it is rather misleading to speak of there being no evidence to support a conclusion when, in cases such as these, many of the facts are likely to be neutral in themselves, and only to take their colour from the combination of circumstances in which they are found to occur."
On an analogous principle, "where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only". This statement by Lord Parker of Waddington in Farmer (Surveyor of Taxes) v Cotton's Trustees [1915] AC 922 at 932, has been accepted as correct by Fullagar J in Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51, and by Windeyer J in Australian Iron & Steel Pty Ltd v Luna (1969) 123 CLR 305 at 320-1; [1970] ALR 257 at 267. As appears from the way in which this rule is stated, the rule does not apply it all the material facts have not been found, eg if it remains to draw an inference of fact before the ultimate facts can be determined.
At the date of death of her father the respondent lived with her mother and the mother's second husband, in their home and her mother provided her with household items such as cutlery, cooking utensils and bedding. Her mother also made some of her clothing. In these circumstances it is understandably argued that the respondent in fact depended for an important part of her support upon her stepfather and her mother and therefore could not have been wholly dependent upon her father. In Kauri Timber Co (Tas) Pty Ltd v Reeman [1972-73] ALR 1266 at 1273-4; 128 CLR 177 at 188-9, I accepted that one person is dependent on another for support if the former in fact depends on the latter for support, even though he does not need to do so and could have provided some or all of his necessities from another source. I adhere to that view, but it does not follow from it that a person who in fact receives some support from one person cannot properly be said to be wholly dependent on another. It is not the mere fact of receipt of support but the dependence or reliance upon another to provide it that matters. The question whether there is in fact dependence or reliance at the date of death is not to be answered by looking only to the circumstances as they existed at that date; "past events and future probabilities" have to be considered: Lee v George Munro (1928) 21 BWCC 401 at 408.
The fact that at the date of death a daughter was being supplied with some of the necessities of life by some third person does not necessarily mean that she was not then wholly dependent for her support upon her father. Obviously enough if the assistance provided by the third person was only intermittent or casual, and unlikely to be continued in the future, it would not prevent the daughter from being wholly dependent on her father (cf the cases cited in Kauri Timber Co (Tas) Pty Ltd v Reeman supra (ALR at 1273-4; CLR at 188). But even if the assistance was substantial and likely to be continued, it would not necessarily have the effect that the child had to be regarded as a partial dependent of her benefactor and therefore as not wholly dependent on her father. For example, a child whose home was in the country and who lived with her grandparents while attending a school in the city would not for that reason alone cease to be wholly dependent upon her father.
The conclusion that I have reached - that a daughter may be wholly dependent upon her father notwithstanding that she in fact receives support from other sources - is supported by authority, although it is true that the cases in which this was decided are distinguishable on their facts from the present case: see Potts v Niddrie and Benhar Coal Co Ltd [1913] AC 531; Lee v George Munro and Cunningham v M'Gregor & Co (1901) 3 F 775.
It must follow that the facts that the respondent was at the date of her father's death provided with lodging by her stepfather and received some benefits from her mother were not necessarily inconsistent with a finding that she was wholly dependent on her father. It is not our function to consider whether the determination of the Commission was, as a matter of fact, right or wrong. Still less are we concerned with the fact that the Act appears to have the extraordinary result that the respondent, if wholly dependent, is entitled to $13,500 together with additional weekly payments, but if partly dependent is entitled to no more than $2000. There was no error of law in the decision of the Commission and the appeal should be dismissed.