Aafjes v Kearney
8 ALR 455(Decision by: Mason J)
Between: Aafjes
And: Kearney
Judges:
Barwick CJ
McTiernan 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
Decision by:
Mason J
The Workers' Compensation Commission found that the respondent, an infant daughter of the deceased, was wholly dependent for support upon her father at the time of his death on 2 March 1973, notwithstanding that she was provided with accommodation and some clothing by her mother and stepfather. The Commission stated a case which was designed to raise the question whether its determination was erroneous in law. By a majority, the Court of Appeal answered the questions asked in the stated case adversely to the appellant employer. The facts recited in the case disclose that the deceased died as a result of injuries arising out of or in the course of his employment, that his marriage with the respondent's mother was dissolved on 15 August 1965 and that she re-married on 27 December 1968. By the terms of the decree for dissolution of the marriage the deceased was required to pay $6 per week towards the respondent's maintenance. These payments were not made regularly and for a time during 1972 they were not made at all. Late in that year the respondent's mother prevailed upon the deceased to pay $12 per week for the maintenance of the respondent, although no variation of the court order was made to this effect.
The respondent lived with her mother in the matrimonial home established by the mother and her stepfather. He contributed no money towards her maintenance, the mother paying for the respondent's food, clothing, medical, dental and educational needs from the sum of $12 per week provided by the deceased. The mother also made some of the respondent's clothing. The stepfather provided accommodation for the respondent in the matrimonial home.
The appellant's case is that there was no evidence on which the finding in favour of the respondent could be sustained. The submission is, therefore, that on the facts recited there was no evidence to sustain the conclusion that the respondent was "a dependant wholly dependent for support" upon the deceased, to quote the language of s 8(1) of the Workers' Compensation Act 1926 (NSW), as amended.
The question which has arisen is not substantially dissimilar to questions which arose in English and Scottish cases on the provisions of cl 1 of the First Schedule to the Workmen's Compensation Acts of 1897 and 1906 by which an entitlement to compensation was conferred "if the workman leaves any dependants wholly dependent upon his earnings at the time of his death". In these decisions it was consistently affirmed by the House of Lords that the question of dependency was not a question of law but was primarily a question of fact (Main Colliery Co Ltd v Davies [1900] AC 358; Hodgson v West Stanley Colliery [1900] AC 229, and Potts v Niddrie and Benhar Coal Co Ltd [1913] AC 531. As Lord Shaw of Dunfermline observed in the second of these cases (at 239), "not only whether dependency exists but whether it is whole or is partial are questions of fact". It follows that a finding by the tribunal of fact is conclusive unless there was no evidence to support it or it was vitiated by some error of law (Potts' Case, at 538).
As often happens in the field of workers' compensation where the questions are primarily questions of fact, the decisions are not notorious for their uniformity. Consequently it is not an illuminating experience to explore the cases in any detail. It is, however, instructive to look at Pott's Case, for there the House of Lords had occasion to examine the application of the statutory provisions to a situation in which the applicant had a legal right to support by the deceased but was nevertheless in receipt of benefits from others. None the less it was held that the arbitrator was entitled in these circumstances to find that the applicant was a dependent wholly dependent upon the deceased's earnings at the time of his death. There the workman had deserted his wife and child. For two years he made spasmodic payments amounting to £2 in all, which sum was applied to support of the family. Payments then ceased and a court order for maintenance was made against him, but between that time and his death in 1911 virtually nothing was obtained from him. The wages then due to him by his employer were paid to his wife. From the time of desertion the wife and the family were supported entirely from the earnings of the two elder children.
Viscount Haldane LC said (at 537-8):
"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."
His Lordship distinguished New Monckton Collieries Ltd v Keeling [1911] AC 648; [1911-13] All ER Rep Ext 1586, on the ground that there the wife had abandoned her right to support over a long period of time. Lord Shaw of Dunfermline said (at 541):
"On the one hand, there may be a temporary absence of a husband or a father, with the expectancy of immediate aid on the part of those left behind. That is the one extreme. On the other hand, there may be a long absence entirely acquiesced in, and those left behind may live a separate and completely independent life, having no reliance whatsoever either upon support actually obtained or possible through the agency of the law. Between those two extremes there are many gradations, leaving room for the arbitrator to pronounce upon dependency - whether it is total or partial, or whether it exists."
These observations reflect an approach which should, in my opinion, be taken to s 8(1) of the New South Wales Act. Indeed, on a comparison of the language of the provisions there is much to be said for the view that in s 8(1) the association of the words "wholly dependent" with the words "for support" makes it even more apparent that the existence of a legal obligation to support is an important factor to be taken into account in the application of the section. The English provisions were more susceptible to a construction which confined their application to the inquiry: Are the deceased's earnings the applicant's sole source of support?
In Pryce v Penrikyber Navigation Colliery Co Ltd [1902] 1 KB 221 at 223, Collins MR said:
"I understand by the words 'wholly dependent' that there was no other source of income during the lifetime of the deceased other than his earnings on which the applicant was dependent."
However, as Samuels J remarked in the Court of Appeal, the emphasis in this passage was upon the word "earnings", as the Master of the Rolls was making the point that the widow's succession to the deceased's personal estate after his death did not detract from her dependence on his earnings during his lifetime.
Stirling LJ's observation in the Penrikyber Case (at 224):
"Put broadly, the test raised by the Act is whether what the workman was earning at the time of his death was the sole source to which the applicant could have looked for maintenance at that time",
was like the Master of the Rolls' remarks, approved in Hodgson v West Stanley Colliery (at 239). However, as the later decision of the House of Lords in Pott's Case and the recent decision of this court in Kauri Timber Co (Tas) Pty Ltd v Reeman [1972-73] ALR 1266 (at 1274) show, "the question of dependency is governed by factual and not by theoretical considerations".
The dominating consideration here and in the United Kingdom is a strong disinclination, founded on common sense, to attribute to the legislature an intention to deprive an applicant of a claim based on total dependency for support where a legal obligation to provide that support exists which has not been abandoned, merely because the applicant is in receipt of benefits from others, whether proceeding from charity or some other motive.
Once this approach to s 8(1) is adopted, as in my opinion it should be, the conclusion is inevitable that there was evidence to support the Commission's decision on the issue of fact. The deceased was under a legal duty to maintain the respondent. This duty had been enforced by a court order. Although the order was not complied with for some time, a subsequent agreement between the deceased and the mother had resulted in the deceased paying $12 per week, twice the amount specified in the court order. The fact that the respondent was permitted by her stepfather to live in the home which he and her mother had established should not be regarded as a contribution by him to her support or maintenance but rather as a kindness and benefit on his part to the respondent's mother so as to enable her to enjoy the society and companionship of her daughter. Seen in this light the provision of accommodation did not detract from the respondent's total dependence for support on her father. Nor, for that matter, did the provision of some clothing by the mother have that effect.
In the result, therefore, the Commission was entitled to find as it did, and the answers given by the Court of Appeal to the questions in the stated case should be confirmed.
I would dismiss the appeal.