Aafjes v Kearney

8 ALR 455

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(Decision by: McTiernan J)

Between: Aafjes
And: Kearney

Court:

Judges: Barwick CJ

McTiernan JGibbs 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

Hearing date: 18 November 1975 - Sydney
Judgment date: 3 March 1976

Melbourne

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Decision by:
McTiernan J

An employer is liable under the Workers Compensation Act of New South Wales (s 7(1)(a)) to pay compensation in accordance with this Act to the dependants of a worker who sustains a fatal injury in the employer's service. The term "dependants" is defined by s 6(1). They are members of the worker's family wholly or in part dependent for support upon the worker at the time of his death. Where the worker leaves any dependants wholly dependent for support upon him at that time, compensation is payable by the employer under s 8(1). Where the worker leaves partial dependants, compensation is payable in accordance with s 8(2).

Whether the relation of dependency exists, and if it does, whether the dependency is total or partial are questions of fact. The appellant, as the employer of a deceased worker, admits he is liable to pay compensation in respect of the death of the worker, to the respondent, the worker's youngest child. The question at issue is whether the respondent is entitled to the amount of compensation stipulated by s 8(1)(a), $13,250, or to an amount determined under s 8(2).

On an application by the respondent to the Workers' Compensation Commission, Judge McGrath found that she was wholly dependent for support upon the worker at the time of his death and awarded her $13,250. His Honour said in his judgment that if it had befallen to him to assess compensation under s 8(2) he would have assessed it at the sum of $2000.

In determining the application the Commission exercised jurisdiction conferred by s 36. Subject to s 37, the decision of the Commission is final in every case. By sub-s (4) of s 36 the jurisdiction of the Commission extends to determining:

"(g)

the existence and extent of dependency".

At the request of the applicant, the judge stated a case, which called in question his finding on the question of the extent of the respondent's dependency for support upon her father, for the decision of the Supreme Court thereon. The case contains findings of fact made by the judge and a number of questions, each of which is framed as a question of law. The first question is as follows: "Did the Commission err in law in holding that the applicant was wholly dependent for support upon the deceased worker at the date of his death?" The hearing of the stated case took place before Moffitt P, Hutley and Samuels JJ A. The court - Hutley JA dissenting - answered the question in the negative. The judgment of the court affirmed the award of the Commission.

The argument of counsel for the appellant was directed to the question quoted above. It rested upon the division, in the definition, of "dependants" into two classes - total dependants and partial dependants. Counsel urged, as I understand the argument, that the findings in the stated case as to the help given to the respondent by her mother since the dissolution of the marriage of the respondent's parents and the finding that her mother's second husband has allowed the respondent to stay in their house, precluded a decision that the respondent was wholly dependent for support upon her father. I do not think that the learned judge was obliged to hold that what the respondent's mother supplied to her, or the aid she gave to her since she divorced her first husband, or the concession of a room to the respondent by her mother's second husband in their house, amounted to substantial support. The finding that the respondent's mother has instituted proceedings for the dissolution of her second marriage might have been considered by the judge. The contributions of money which the respondent's father was making in the months before his death created a real situation approximating to her being wholly dependent for support upon her father.

There is nothing in the stated case to suggest that before the dissolution of the marriage of her parents the respondent was not fully dependent for sustenance, shelter and other necessaries upon her father. This situation was not destroyed. She did not become, like a stranger, economically or otherwise independent of her father. There is nothing in the stated case to show that the former situation changed during the rest of her father's life from the total natural dependence proper in a girl in her nonage, to partial dependence. The extent of her dependence is not exactly measured by the payments the respondent's father was making. The probability that she would expect him to be her stand-by in case of necessity may have been considered by the Commission.

I would answer "No" in the first question and in each of the other questions.

In my opinion the appeal should be dismissed.