Cunha v Workers Compensation (Dust Diseases) Authority - [2016] NSWDC 227

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Cunha v Workers Compensation (Dust Diseases) Authority [2016] NSWDC 227
Hearing dates: 2-4 August 2016
Date of orders: 04 August 2016
Decision date: 04 August 2016
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
1. Appeal allowed.

2. Order 1 made by the defendant in its award of 20 November 2015 set aside

3. In lieu of that order:
“the amount of $332,850.00 be awarded to the dependant in accordance with s 8(2B)(b)(i)(c) of the Act”

4. Defendant to pay interest on the difference between $332,850 and $99,855 from 20 November 2015 to date at the rate specified in UCPR 36.7
.
5. Defendant to pay the plaintiff's costs.
6. Liberty to apply on three days’ notice.
Catchwords: WORKERS COMPENSATION – Dust diseases – Calculation of death benefit for widow of worker who died of asbestosis – Whether receipt of age pension under Commonwealth legislation required a finding of partial dependency when widow had been totally dependent on her husband prior to the grant of the aged pension – In the alternative to finding of total dependence, correct method of assessing extent of partial dependence
Legislation Cited: Civil Liability Act 2002
Workers Compensation Act 1987
Workers Compensation (Dust Diseases) Act 1942
Cases Cited: Aafjes v Kearney (1976) 180 CLR 199
Claydon v Jayton Pty Ltd t/as Stocktrans (1999) 18 NSWCCR 381
Coles Myer Ltd v Rudzinski [2006] NSWCA 161
Dionisatos (for the Estate of the Late George Dionisatos) v Acrow Formwork and Scaffolding Pty Ltd (2015) NSWCA 281
Fisher v Hebburn Ltd (1960) 105 CLR 188
Kauri Timber Co (Tas.) Pty Ltd v Reeman (1973) 128 CLR 177
McCafferty's Management Pty Ltd v Pimlott (1995) 12 NSWCCR 360
New Monckton Collieries Ltd v Keeling (1911) AC 648; (2011) 4 BWCC 332
Norris v Routley [2015] NSW SC 883
O'Brien v Workers Compensation (Dust Diseases) Board (2000) 22 NSWCCR 193
Potts v Niddrie and Benhar Coal Co Ltd (1913) AC 531
Warilla Timber and Hardware Pty Ltd v Newton (1995) 11 NSWCCR 546
Workers Compensation (Dust Diseases) Board v Veksans (1993) 32 NSWLR 221
Category: Principal judgment
Parties: Maria Cunha (Appellant)
Workers Compensation (Dust Diseases) Authority (Respondent)
Representation:
Counsel:
Mr Simic (Appellant)
Mr J Sheller (Respondent)
Solicitors:
Taylor & Scott Lawyers (Appellant)
Insurance & Care NSW (Respondent)

File Number(s): RJ43/2016
Publication restriction: No

Judgment

HIS HONOUR: This is an appeal pursuant to s 8I of the Workers Compensation (Dust Diseases) Act 1942 (“the Act”). Although the Act provides for "appeals", it is clear that what is involved is a hearing de novo. There is a complete rehearing of the matters in question before this Court. This Court is not concerned whether the Dust Diseases Authority, the defendant in these proceedings, erred or failed to give proper reasons. It is not required to provide reasons for its decisions. The Court does not refer the matter back to the authority but it determines a matter brought before it under s 8I. Those principles were established…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cunha v Workers Compensation (Dust Diseases) Authority

Details

AGLC: Cunha v Workers Compensation (Dust Diseases) Authority [2016] NSWDC 227
Case: [2016] NSWDC 227
Decision Date: 04 August 2016

CaseChat Overview and Summary

In the case of Cunha v Workers Compensation (Dust Diseases) Authority, the primary issue was the calculation of a death benefit for a widow of a deceased worker who had succumbed to asbestosis. The widow had been totally dependent on her husband before his death and had subsequently received an age pension under Commonwealth legislation. The court was tasked with determining whether the receipt of this pension necessitated a finding of partial dependency for the purposes of calculating the death benefit. If partial dependency was found, the court also needed to decide the correct method of assessing the extent of that partial dependence.

The court concluded that the receipt of the age pension did not automatically imply partial dependency. Instead, the widow's total dependency on her husband prior to his death should be recognised. Furthermore, the court held that the correct method of assessing the extent of any partial dependency was to consider the widow's circumstances and the contribution of the age pension to her financial situation. The court found that the widow had not been partially dependent on her husband at the time of his death.

Consequently, the appeal was allowed, and the order made by the defendant on 20 November 2015 was set aside. In its place, the court ordered that the amount of $332,850 be awarded to the dependant in accordance with the relevant statutory provision. The defendant was also directed to pay interest on the difference between the awarded amount and the previously awarded amount, from the date of the original award to the date of the court's decision. Additionally, the defendant was ordered to pay the plaintiff's costs. The decision concluded with liberty granted to apply for further orders on three days' notice.

Orders

Orders of the court

1. Appeal allowed.

2. Order 1 made by the defendant in its award of 20 November 2015 set aside

3. In lieu of that order:

“the amount of $332,850.00 be awarded to the dependant in accordance with s 8(2B)(b)(i)(c) of the Act”

4. Defendant to pay interest on the difference between $332,850 and $99,855 from 20 November 2015 to date at the rate specified in UCPR 36.7

5. Defendant to pay the plaintiff's costs.

6. Liberty to apply on three days’ notice.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Cunha v Workers Compensation (Dust Diseases) Authority [2016] NSWDC 227
Hearing dates:	2-4 August 2016
Date of orders:	04 August 2016
Decision date:	04 August 2016
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	1. Appeal allowed. 2. Order 1 made by the defendant in its award of 20 November 2015 set aside 3. In lieu of that order: “the amount of $332,850.00 be awarded to the dependant in accordance with s 8(2B)(b)(i)(c) of the Act” 4. Defendant to pay interest on the difference between $332,850 and $99,855 from 20 November 2015 to date at the rate specified in UCPR 36.7 . 5. Defendant to pay the plaintiff's costs. 6. Liberty to apply on three days’ notice.
Catchwords:	WORKERS COMPENSATION – Dust diseases – Calculation of death benefit for widow of worker who died of asbestosis – Whether receipt of age pension under Commonwealth legislation required a finding of partial dependency when widow had been totally dependent on her husband prior to the grant of the aged pension – In the alternative to finding of total dependence, correct method of assessing extent of partial dependence
Legislation Cited:	Civil Liability Act 2002 Workers Compensation Act 1987 Workers Compensation (Dust Diseases) Act 1942
Cases Cited:	Aafjes v Kearney (1976) 180 CLR 199 Claydon v Jayton Pty Ltd t/as Stocktrans (1999) 18 NSWCCR 381 Coles Myer Ltd v Rudzinski [2006] NSWCA 161 Dionisatos (for the Estate of the Late George Dionisatos) v Acrow Formwork and Scaffolding Pty Ltd (2015) NSWCA 281 Fisher v Hebburn Ltd (1960) 105 CLR 188 Kauri Timber Co (Tas.) Pty Ltd v Reeman (1973) 128 CLR 177 McCafferty's Management Pty Ltd v Pimlott (1995) 12 NSWCCR 360 New Monckton Collieries Ltd v Keeling (1911) AC 648; (2011) 4 BWCC 332 Norris v Routley [2015] NSW SC 883 O'Brien v Workers Compensation (Dust Diseases) Board (2000) 22 NSWCCR 193 Potts v Niddrie and Benhar Coal Co Ltd (1913) AC 531 Warilla Timber and Hardware Pty Ltd v Newton (1995) 11 NSWCCR 546 Workers Compensation (Dust Diseases) Board v Veksans (1993) 32 NSWLR 221
Category:	Principal judgment
Parties:	Maria Cunha (Appellant) Workers Compensation (Dust Diseases) Authority (Respondent)
Representation:	Counsel: Mr Simic (Appellant) Mr J Sheller (Respondent) Solicitors: Taylor & Scott Lawyers (Appellant) Insurance & Care NSW (Respondent)
File Number(s):	RJ43/2016
Publication restriction:	No