Dorothea Eleanor Bilston v WorkCover Corporation (Lach Transport Pty Ltd) No. SCGRG 95/907 Judgment No. 5537 Number of Pages 7 Workers' Compensation

[1996] SASC 5537

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA DOYLE CJ(1), MILLHOUSE(2) AND WILLIAMS(3) JJ

CWDS
Workers' compensation - entitlement to and liability for compensation - persons entitled to compensation - Workers Rehabilitation and Compensation Act1986 (SA), s44 - entitlement of spouse to lump sum payment in relation to death as a result of a compensable injury - s44(3) requiring that spouse "cohabiting" with worker at date of death - worker living interstate in order to get work - cohabitation continued although worker and spouse living apart - answer depends upon circumstances, reasons for living apart, relationship and intentions of parties - matter remitted to Tribunal for further consideration. Workers Rehabilitation and Compensation Act, 1986 (SA) s44, referred to.

HRNG ADELAIDE, 4 March 1996 #DATE 3:4:1996 #ADD 20:5:1996

Counsel for appellant:     Mr P Day

Solicitors for appellant:    Michelle and Co

Counsel for respondent:     Mr D Peek

Solicitors for respondent: Gun and Davey

ORDER
Appeal allowed.

JUDGE1 DOYLE CJ The appeal is limited by section 100(3) of the WorkersRehabilitation and Compensation Act ("the Act") to a question of law.

2. By its decision the Tribunal set aside a determination of a Review Officer. That determination was that Mrs Bilston was entitled to a lump sum payment under section 44(1)(b)(i) of the Act. As well as setting aside that determination the Tribunal determined that Mrs Bilston was not entitled to payment under section 44(1)(b)(i) of the Act.

3. Mrs Bilston is the wife of a deceased worker. There is no doubt that the worker died as the result of a compensable disability. There is no doubt that Mrs Bilston is his spouse. Section 44(1)(b) of the Act entitles the spouse of a worker who has died as a result of a compensable disability to a lump sum payment. But section 44(3) provides as follows:
    "(3) A spouse is not entitled to a lump sum under subsection
    (1)(b)(i) unless -
    (a) the spouse was cohabiting with the worker on the date of
    the worker's death; or
    (b) although the spouse was not cohabiting with the worker
    on the date of the worker's death it is, in the opinion of
    the Corporation, fair that the spouse should receive a lump
    sum under that provision."

4. It is convenient to state the facts briefly. The Tribunal does not appear to have rejected any of the factual findings made by the Review Officer. Mrs Bilston and her husband were living apart, and had been living apart for about three years before his death. They separated when the deceased moved from the family home in Sydney to get work in South Australia. On the findings that occurred because a business in which the deceased was a partner was in financial difficulty, and was in substantial debt. Apparently the deceased was able to obtain work in South Australia and had had a long term desire to live in Clare in South Australia, something that the family had discussed and planned for a number of years. It looks as if the deceased in effect wanted to disown the debts incurred in the business, because Mrs Bilston's reason for remaining in Sydney was, in part, that she would not leave until the business was sold and the debts were discharged. In addition, she wanted to remain in Sydney until their three children, whose ages ranged between 19 and 24 at the time of death, had left home. After the deceased moved to Clare he maintained contact by telephone with his family, and made occasional trips to Sydney to see his family. On some occasions intercourse took place between Mr and Mrs Bilston. The transcript of submissions before the Tribunal indicates that Mrs Bilston had given evidence that she did plan to move to Clare once the debts were cleared and the children had left home. As far as I can ascertain the Tribunal did not reject this evidence, although it is not expressly referred to by the Tribunal or by the Review Officer. I note that the Review Officer found that Mrs Bilston gave her evidence in a straight forward manner. It is also worth mentioning that the evidence established that she had (through the business in Sydney) provided $10,000 as a deposit or initial payment on the house at Clare in which the deceased was living.

5. The question then was whether Mrs Bilston was cohabiting with the worker on the date of the worker's death.

6. In my opinion the Tribunal took too narrow an approach. In my opinion it erred as a matter of law in its application of section 44(3) of the Act to the facts of the case.

7. The Tribunal said that the purpose of the lump sum was not to compensate the spouse for the loss attributable to the loss of weekly earnings of the worker. Such loss was met by the making of a payment under a different provision of the Act. It followed, the Tribunal reasoned, that the purpose of the payment was to compensate for other losses such as loss of services. The Tribunal reasoned that its approach to the meaning of "cohabiting" need not be a liberal one, but should be an approach which ensured that "those who qualify are justly entitled to be compensated for the losses provided by the provision".

8. In my opinion this resulted in a too narrow a focus to the case. The statutory expression is the critical thing. I consider that an approach which focused upon ascertaining whether or not Mrs Bilston had suffered losses of the type which the lump sum payment was designed to compensate was incorrect. I do not deny the relevance, in a general way, of the matters to which the Tribunal adverted, but it seems to me that the Tribunal gave them undue prominence. Cohabitation was the ultimate issue.

9. But that is not all that the Tribunal said on the meaning of "cohabiting". The Tribunal said that its approach was consistent with what was said by Jacobs J in In Re Fagan (1980) 23 SASR 454 at 464 where His Honour referred with approval to the following remarks of Lord Goddard CJ in Wheatley v Wheatley (1950) 1 KB 39 at 43:
    "... The cohabitation of two people as husband and wife
    means that they are living together as husband and wife, the
    wife rendering wifely services to her husband; the husband
    rendering husband-like services to his wife. They must live
    together not merely as two people living in one house, but
    as husband and wife. ... "

10. Jacobs J then went on to say (at 464):
    "... It does not necessarily imply that they are always
    living together under the same roof, and there may be states
    of cohabitation where they see as much of each other as they
    can, and yet are not separated because there has not been
    any real suspension of their ordinary conjugal relation. A
    man may be cohabiting with his wife even if he is away on a
    visit or on business because the conjugal relationship is
    not determined in any share or form ... "

11. With all of that I agree. The emphasis of these passages is two-fold. First, that the relationship must be that of husband and wife. Secondly, that such relationship may continue although the parties are not living together under the same roof.

12. I mention here that common sense suggests that proper allowance must be made for the varying circumstances affecting the lives of spouses. Financial and other necessities might compel spouses to live apart for a considerable period of time, with relatively little contact between them, and one must be careful not to be unduly influenced by the fact of physical separation. It is also necessary to be realistic and to recognise the somewhat elusive nature of the notion of living together as husband and wife. This is something the meaning of which could change with changes in social conditions and attitudes, and with age and no doubt for other reasons.

13. I return to the reasons of the Tribunal.

14. The Tribunal then went on to say, no doubt influenced by the importance which it attached to the purpose of the compensatory payment, that the passage just cited from the judgment of Jacobs J:
    "... also contemplates that during the period of physical
    separation, there is not an absolute suspension of the
    exchange of services that one would normally expect as
    between husband and wife. It is the exchange or the
    expectation of an exchange of services that is critical to
    the finding of co-habitation."

15. To my mind, without wishing to be pedantic, this passage is also suggestive of error. Circumstances may force spouses into a situation in which there is simply no scope for the exchange of services one would normally expect, and yet, in my opinion, one would not necessarily say that cohabitation had ceased. This is because while the notion of cohabitation is that of living together as husband and wife, cohabitation is as much a relationship as a set of facts, and the relevant relationship may persist although the facts which would be necessary to bring the relationship into existence no longer exist. However, I note that the Tribunal did refer to the expectation of an exchange of services, and I acknowledge that that points in the right direction.

16. The critical part of the Tribunal's reasoning then follows. It said that the Review Officer erred in focusing on the question of whether or not the marriage was intact at the time of death. I agree that that was not the central issue. The Tribunal then said:
    "... The focus should have been as to whether or not the
    deceased and his wife were living together as man and wife
    at the time of his death and if physically separated whether
    such separation was temporary or indeterminate and in any
    event whether there had been a suspension of the exchange of
    services ordinarily expected to exist as between husband and
    wife."

17. In my opinion this passage is again suggestive of error. The fact that the separation between Mr and Mrs Bilston was indeterminate was not critical. It was indeterminate in the sense that until the business was sold, the debts were met and the children had left home, there was no real prospect of them resuming life together under the one roof. But, in my opinion, the evidence from Mrs Bilston that that was their intention was important evidence. Likewise, the suspension of the exchange of services was not of critical importance, once one understood the nature of the reasons for the separation of the spouses.

18. The Tribunal went on to say that if the Review Officer had taken the correct approach he would have found:
    "... that their separation was indeterminate. He would have
    further found that there had been a (sic) indefinite
    suspension of the exchange of services to which I have
    referred notwithstanding the infrequent and intermittent
    resumption of connubial intercourse over the three year
    period prior to the deceased's death."

19. In my opinion neither the indeterminate nature of the separation nor the fact of the indefinite suspension of the exchange of services led to the conclusion which the Tribunal reached.

20. It seems to me, when one bears in mind the factual background and the legal principles, that the Review Officer was right when he said: "I accept that Mrs. Bilston and her husband maintained a relationship as best they could under the circumstances that prevailed in that part of their lives and during that time in their marriage, that is between 2nd September, 1988 and 2nd September, 1991."

21. I do not intend to attempt any definition of the term "cohabit". As I have indicated, the term can apply in such varying circumstances that there is no point in general terms in going beyond the proposition that it refers to the state of living together as husband and wife. In my opinion, cohabitation, once that state exists, may continue although husband and wife are living apart. A conclusion that cohabitation continues depends upon a consideration of the circumstances under which they are living, the reasons why they are living apart and a consideration of the relationship between and intention of the parties.

22. In the present case there had been a lengthy period of cohabitation. The circumstances of the separation do not suggest an intention to terminate the marriage or the marital relationship. The underlying relationship of husband and wife was, on the evidence, preserved after a fashion notwithstanding the physical separation. There was evidence, which does not appear to have been rejected, of an intention to resume residence under the one roof when circumstances permitted. In my opinion, on those facts, and the other facts which I summarised earlier it was open to the Review Officer to be satisfied that cohabitation continued. I can see no error of law in the approach of the Review Officer. In my opinion the approach of the Tribunal put undue weight on the indeterminate or indefinite duration of the physical separation and undue emphasis upon the suspension of the exchange of services as between husband and wife, and gave insufficient attention to the state of the marital relationship.

23. Counsel for the respondent sought to support the decision reached by a slightly different approach. He argued that the central element of cohabitation was the fact of living together under the one roof (he did not, of course, ignore the other aspects), and he argued that once spouses had established separate residences or households, then ordinarily cohabitation had come to an end. He emphasised, quite correctly, that cohabitation was a matter distinct from the existence or continuance of a marital relationship. He acknowledged that in exceptional cases the circumstances might enable one to conclude that cohabitation continued although separate places of residence had been established.

24. To my mind that approach gives undue weight to the fact of a single place of residence, and insufficient weight to the relationship which is an important aspect (although not the decisive or only aspect) of cohabitation.

25. In my opinion ordinary usage, and the case law, support the view that a man and a woman may readily be said to be cohabiting although they have established separate residences for a period which is significant or which is, at a given moment, of indefinite duration.

26. It therefore is my opinion that the Tribunal erred as a matter of law. Nor, in my opinion, is the decision supportable on the basis that because separate residences had been established, cohabitation was at an end. In my opinion the appeal should be allowed. It does not follow that the Review Officer's conclusion was correct, even though it does not disclose error of law. The Tribunal was entitled to reach its own conclusion, provided that it applied the law correctly. While it is regrettable that the parties should incur further expense, the matter must be remitted to the Tribunal for further consideration of the facts and the law in the light of these reasons. The Review Officer reached a decision which he was entitled to come to, applying the law as stated by me, but it cannot be said that that was the only conclusion which could be reached on the facts.

27. The Tribunal also held that Mrs Bilston was not entitled to a lump sum under the provisions of section 44(3)(b). This decision was also challenged on appeal. The Tribunal dealt with the entitlement to a lump sum on this basis at the invitation of counsel, and even though the Corporation's determination gave no indication that it had directed its mind to this provision. It appears that Mrs Bilston had not advanced a claim on that basis. No submissions had been made on the application of section 44(3)(b) before the Review Officer. The Review Officer had, despite that, expressed an opinion favourable to Mrs Bilston.

28. On the hearing of this appeal counsel raised the proper application of section 44(3)(b), and the question of whether a decision under the provision gave rise to a reviewable decision.

29. The Court indicated that it did not wish to hear submissions on these matters. The Court took the view that as the Corporation had not made any decision under the provision there was no reviewable decision in that respect. The Court took this view because, whatever may be the correct application of the provision, in its view a decision rejecting a claim on the basis that cohabitation had ceased could not be treated as a decision under section 44(3)(b), the provisions of which raise quite different issues. The Court expressed no view on the question of the correct application of the provision or the question of whether it could give rise to a reviewable or appealable decision. The invitation of counsel to decide the matter could not give the Tribunal a jurisdiction which it lacked at least until a primary decision was made. The Court took the view that Mrs Bilston would have to initiate a claim under the provision if she wished to test its meaning. It is a pity that this should be so, but the provision gives rise to obvious problems, and the expression by this Court of views at large is unlikely to be a profitable exercise.

30. Accordingly, I would allow the appeal, set aside the decision of the Tribunal, and order that the Tribunal determine the appeal to it in the light of these reasons.

JUDGE2 MILLHOUSE J I agree.

JUDGE3 WILLIAMS J I agree.