Holdlen Pty Ltd v Walsh

[2000] NSWCA 87

Reported Decision: [2000] 19 NSWCCR 629

New South Wales

Court of Appeal

CITATION:	Holdlen Pty Ltd v Walsh [2000] NSWCA 87
FILE NUMBER(S):	CA 40482/99 & 40483/99
HEARING DATE(S):	12 April 2000
JUDGMENT DATE:	26 April 2000
PARTIES :	Holdlen Pty Ltd - Appellant Leah Denise Walsh - Respondent
JUDGMENT OF:	Meagher JA at 1; Giles JA at 2; Heydon JA at 53

LOWER COURT JURISDICTION :	Compensation Court
LOWER COURT FILE NUMBER(S) :	6896/97 & 7215/98
LOWER COURT JUDICIAL OFFICER :	Geraghty J

COUNSEL:	R I Harrington - Appellant J Poulos QC & G A Rich - Respondent
SOLICITORS:	Curwood & Partners, Sydney - Appellant Tonkin Drysdale Partners, Woy Woy - Respondent
CATCHWORDS:	WORKERS COMPENSATION - injury - some years later death by suicide - award to worker's dependants if death resulted from injury - trial judge found it did - whether error in point of law - evidence of causal link - no error - discussion of cases calling for inquiry into worker's sanity at time of suicide - need for inquiry doubted - discussion whether s 14(3) of Workers Compensation Act can apply in a case of death by suicide - not necessary to decide. - WORKERS COMPENSATION - injury - award to dependants wholly dependent for support on worker - trial judge found child wholly dependent - whether error in point of law - worker obliged to pay maintenance - total dependency not incompatible with worker's wife in fact providing support - evidence on which total dependency could be found - no error.
CASES CITED:	(a) CAUSATION - Koorangang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; Accident Compensation Commission v C E Heath Underwriting Insurance (Aust) Pty Ltd (1994) 121 ALR 417; Sutherland Shire Council v Baltica General Insurance Co Ltd (1995) 39 NSWLR 87. (b) INSANITY AND S 14(3) - Fenton v Thorley & Co Ltd (1903) AC 443; Grime v Fletcher (1915) 8 BWCC 69; Withers v London, Brighton and South Coast Railway Company (1916) 2 KB 772; Marriott v Maltby Main Colliery Co Ltd (1920) 13 BWCC 353; Bevan v Lancasters Steam Coal Collieries (1926) 20 BWCC 241; Johnson v Warren (1928) 21 BWCC 411; Church v Dugdale & Adams Ltd (1929) 22 BWCC 444; Parry v English Steel Corporation Ltd (1939) 32 BWCC 272; King v Associated Battery Makers of Australia Pty Ltd (1954) WCR 105; Mitchell v Hunt (1960) WCR 56; Bird v Australian Iron & Steel Pty Ltd (1979) WCR 227; Muscat v NSW Harness Racing Club Ltd (1995) 11 NSWCCR 1; March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; Medlin v State Government Insurance Commission (1995) 182 CLR 1; Director of Public Prosecutions for Northern Ireland v Lynch (1975) AC 653; MMI Workers Compensation (NSW) v Kennedy (1993) 9 NSWCCR 482. (c) DEPENDENCY - Aafjes v Kearney (1976) 180 CLR 199; McCaffety's Management Pty Ltd v Pimlott (CA, 5 December 1995, unreported).
DECISION:	Appeal dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40482/99 & 40483/99

CC 6896/97 & 7215/98

MEAGHER JA
GILES JA

HEYDON JA

Wednesday 26 April 2000

HOLDLEN PTY LTD v WALSH

JUDGMENT

1    MEAGHER JA: I agree with Giles JA.

2    GILES JA: This is an appeal from awards of a lump sum and weekly payments in respect of the child of a deceased worker pursuant to s 25 of the Workers Compensation Act 1987. The worker was injured at work on 14 November 1994. He committed suicide on 14 or 15 October 1997. By s 25, if death results from an injury and the worker leaves any dependants wholly dependent for support on the worker, compensation by way of a lump sum and weekly payments is payable in respect of the dependants. The entitlement to compensation is relevantly subject to s 14(3), by which compensation is not payable in respect of “any injury to or death of a worker caused by an intentional self-inflicted injury”.

3    The appellant challenges the trial judge’s findings that the worker’s death resulted from the work injury, that the worker was insane at the time of his death, and that the child was wholly dependent for support on the worker; it also contends that the trial judge failed to give effect to s 14(3).

4 By s 32 of the Compensation Court Act 1984 the appeal is limited to an appeal in point of law. A finding contrary to the weight of the evidence, even a perverse finding, would not be an error of law: a finding for which there was no evidence at all would be an error of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139.

Causation

5    The appellant submitted that there was no evidence of a chain of causation between the worker’s injury and his death. The submission as developed overlapped with the submission in relation to the finding of insanity. For the present, I put that finding aside.

6    The following is a shortened account of the events leading to the worker’s suicide. The trial judge’s account was more detailed, and was well founded in the evidence.

7    The worker injured his right knee in June 1994. The injury, a rupture of the anterior cruciate ligament, was not a work injury. In August 1994 the worker underwent reconstruction of the ligament. He returned to work in September 1994.

8    The injury on 14 November 1994 was a fracture of the patella of the same knee. On 16 November 1994 the fracture was reduced and stabilised by way of circlage wiring.

9    The wiring caused the worker significant discomfort, and was removed in January 1995. However, there was continuing anterior right knee pain, with “crunching” while walking, and at the end of March 1995 or in early April 1995 the worker underwent an arthroscopy with paletto-femoral chrondroplasty. The treating surgeon considered that the anterior cruciate ligament graft had been damaged at the time of the injury on 14 November 1994.

10    The pain, at times severe, continued, despite much treatment. At some time, it seems upon the procedure last mentioned, the worker ceased work. He could not cope with the pain, or with the restrictions on his activity and financial stringency. He became angry, anxious and depressed, and increased his drinking to excessive levels with occasional binges. He put on 15 kg in weight. In September 1995 he and his wife, who had suffered under his radically changed nature, separated. This added to the worker’s distress.

11    In February 1996 the worker underwent a revision of the cruciate ligament reconstruction, but this did not relieve his condition and the psychological sequelae remained. Intensive rehabilitation, consultation with psychologists, and attendance at a pain clinic brought no relief. In a report of 20 July 1996 Dr Dragutinovich, a clinical psychologist, referred to his “significant anxiety and depression related to loss associated with his knee condition”, the loss being summed up as “no job - no money - no woman”.

12    In early August 1997 the worker damaged or aggravated the anterior cruciate ligament graft. He was told he had to have a further reconstruction. In early October 1997 he and his then girlfriend broke up. When he took his life about a week later the worker left a note for his wife saying, amongst other things, that he could not cope, and a note for his parents saying “I don’t care any more and I need to find some peace and happiness.”

13    The appellant contended that the worker’s death resulted from the June 1994 injury and its effect on the worker’s life thereafter, and in particular its revival in August 1997 with the immediate trigger the break-up with the worker’s girlfriend. However, the requirement that the worker’s death “results from” the injury of 14 November 1994 does not involve a notion of proximate cause, and it is sufficient if the injury of 14 November 1994 materially contributed to the worker’s death: Koorangang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; Accident Compensation Commission v C E Heath Underwriting Insurance (Aust) Pty Ltd (1994) 121 ALR 417; Sutherland Shire Council v Baltica General Insurance Co Ltd (1995) 39 NSWLR 87. The trial judge found that the injury of 14 November 1994 made a real contribution to the separation, to the change in life style, and to the financial circumstances of the worker, “all of which led to a desperate act which he committed while overcome with depression”.

14    There was ample evidence on which this conclusion, and so the finding under challenge, could be based. It was not only in the course of events which I have summarised, but also in the medical evidence.

15    The report of Dr Moses, the worker’s general practitioner from March 1996, said -

“It is my understanding that as a result of his accident and the subsequent multiple surgeries, and his almost constant pain and limitation, he became chronically depressed and irritable, abusing alcohol and losing his marriage. Hence my opinion that Mr Walsh’s work injury was a most substantial contributing factor to his death.”

16    Mr Ervine, a psychologist who expressed his opinion only on the papers but whose report was described by the trial judge as “impressive, thorough and detailed”, said that the injury of 14 November 1994 “contributed to a train of events which culminated in [the worker’s] death”, and that “the injuries sustained in the work place in November 1994 and subsequent psychological and physical difficulties, including the inability to work as he had previously were substantial contributing factors in his death”.

17    It is impossible, in my view, to accept the submission that there was no evidence of a chain of causation between the worker’s injury and his death. Subject to the submission in relation to the finding of insanity, there was evidence on which the finding was open, and error in point of law has not been shown.

18    Although not a ground in the notice of appeal, the appellant also submitted that the trial judge failed to give sufficient reasons as to the chain of causation, or as to why the events proximate to the worker’s suicide did not break the chain of causation. The respondent did not take the point that there was no ground in the notice of appeal.

19    It is not necessary to give long or elaborate reasons provided that the basis of the decision is articulated, and in particular where there is no appeal on questions of fact description of the reasoning process from one fact to another or to the conclusion of fact is not essential: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. It is enough to say that the trial judge carefully set out the course of events and the various medical and related opinions, in greater detail than do these reasons, and made it abundantly plain why he came to his conclusion. There is nothing in this submission.

Insanity and section 14(3)

20    The challenge to the finding of insanity and the contention that the trial judge failed to give effect to s 14(3) are related, and should be considered together.

21    Early in his reasons the trial judge recorded the appellant’s position that the worker was not insane “as insanity is understood by the law” and that s 14(3) precluded the awards: he also referred to “the shoals created by causation and s 14(3)”. He did not thereafter refer expressly to s 14(3). Why did he make a finding on whether the worker was insane at the time of his death, and what part did s 14(3) play?

22    The legislation in the United Kingdom early in this century provided for compensation for “personal injury by accident”, including “where death results from the injury” (Workmen’s Compensation Act 1906 (UK) s 1(1), First Schedule cl 1(a); Workmen’s Compensation Act 1925 (UK) ss 1(1), 8(1)). It did not expressly deal with self-inflicted injuries, but the words “by accident” were taken to exclude injuries of that kind (Fenton v Thorley & Co Ltd (1903) AC 443 at 448 per Lord Macnaghten) and death by suicide was regarded as excluded unless the worker was found to have been insane at the time of the suicide (Grime v Fletcher (1915) 8 BWCC 69; Withers v London, Brighton and South Coast Railway Company (1916) 2 KB 772; Marriott v Maltby Main Colliery Co Ltd (1920) 13 BWCC 353; Bevan v Lancasters Steam Coal Collieries (1926) 20 BWCC 241; Johnson v Warren (1928) 21 BWCC 411; Church v Dugdale & Adams Ltd (1929) 22 BWCC 444; Parry v English Steel Corporation Ltd (1939) 32 BWCC 272).

23    The point of inquiry into sanity can be seen in the reasons of Warrington LJ in Marriott v Maltby Main Colliery Co Ltd (at 359) -

“The dependants of a workman who seek to recover compensation for the death of a workman occasioned by suicide have to establish that although death was occasioned by his own act, yet in fact it resulted from the injury by accident which he had previously suffered. Now, in order to do that, it seems to me that the defendants have to prove three things (1) that at the time he committed suicide, he was, in fact insane; (2) that the insanity was the result of the accident, and (3) that the suicide itself was the result of the insanity.”

24    That is, the inquiry into sanity was regarded as going to causation. Suicide, an intentional act of the worker, would break the chain of causation between the injury and the death unless the worker’s mental state, described as insanity, was such that it should not be regarded as an intentional act. Hence the other requirements that the suicide be the result of the insanity and the insanity be the result of the injury, because without them even the “unintentional” act would break the causal chain. Hence also the overlap in the appellant’s submissions to which I earlier referred, because insanity goes to causation.

25    In Church v Dugdale & Adams Ltd Lord Hanworth MR described Marriott v Maltby Main Colliery Co Ltd as “the locus classicus for … the guidance to be found in these cases”, and continued (at 449) -

“The upshot of all that is, that when one turns to see the facts of the case before the Court it is necessary to find not merely that there has been suicide, not merely at the time of the suicide that there was some depression and some delusions, but you must find that the condition of the man was such that the accident disabled him from exercising a judgment, and in that sense caused the accident. If you find merely that in consequence of the accident he is brooding in fear of poverty, or in distress, or in a mental condition which is consistent with the condition of a person not suffering from an accident, there you do not find and are not entitled to draw the inference that his mind has become unhinged so as to dethrone his power of volition, and in that sense there is no proof and no necessary connection between the accident and the suicide.”

26    A test of whether the worker was “suffering from mental derangement sufficient to dethrone his power of volition” was affirmed in Parry v English Steel Corporation Ltd, in which it was said (at 275) that it was beyond question that there could be “such a destruction of volition as may cause the suicide to be referable to what caused the destruction of the volition - possibly the accident - even though there is no insanity in the legal sense”.

27    So in Willis’s Workmen’s Compensation Acts, 37th ed (1945) it was said that suicide resulting from insanity consequent on personal injury by accident “is rightly held to be death resulting from the injury” (at 243), with the explanation (at 244) -

The principle upon which these mental cases are decided is no different from that applicable to other cases, though it is much more difficult to apply. The principle is that, in order to succeed the applicant must show a complete chain of causation, unbroken by the intervention of some new cause. It is not necessary to show that the injury itself has directly affected the brain, or that it has produced some physiological injury to which the mental derangement can be attributed.”

28    In New South Wales the Workmen’s Compensation Act 1916 followed the United Kingdom legislation (s 5(1), Schedule 1 cl 1(a)), but the Workers’ Compensation Act 1926 provided for compensation for “injury” (s 7(1)) and added the proviso that no compensation should be payable “on account of any injury to or death of a worker caused by an intentional self-inflicted injury” (s 7(3)(c)).

29    The proviso, now found in s 14(3), was clearly enough intended to govern compensation for self-inflicted injuries, in place of the words “by accident”. Was it also intended to govern death by suicide when considering whether death resulted from an injury?

30    Section 7(3)(c) was not referred to in King v Associated Battery Makers of Australia Pty Ltd (1954) WCR 105, a suicide case in which it was asked (at 103) whether the worker was insane and if so whether his insanity resulted from his injury. Nor was it referred to in Mitchell v Hunt (1960) WCR 56, in which the same approach was taken and it was found (at 62) that there was “a complete chain of causation”.

31    In Bird v Australian Iron & Steel Pty Ltd (1979) WCR 227 the employer submitted that s 7(3)(c) precluded recovery where death resulted from suicide, which the judge described (at 229) as “a novel and ingenious interpretation of that subsection”. Apparently accepting that it governed the causal link between injury and death, however, his Honour said that the use of the word “intentional” in association with “self-inflicted” was designed to preserve and incorporate “the existing case law on the matter” in the interpretation of s 7(3)(c), and that s 7(3)(c) did not preclude recovery of compensation when the death was by suicide. Applying the test of dethronement of the power of volition, it was held that the death was not caused by an intentional self-inflicted injury.

32    Section 14(3) of the 1987 Act is to the same effect as s 7(1)(c) of the 1926 Act, although referring to compensation payable “in respect of” rather than “on account of” the injury or death. In Muscat v NSW Harness Racing Club Ltd (1995) 11 NSWCCR 1, another suicide case, there was an inquiry into sanity without mention of s 7(3)(c). Together with King v Associated Battery Makers of Australia Pty Ltd and Mitchell v Hunt, Bird v Australian Iron & Steel Pty Ltd was cited for that approach.

33    Section 14(3) is not easy to construe. The word “injury”, used twice, must be used in two different senses, notwithstanding that it is defined in s 4. On one view, the first injury is a physical condition short of death caused by an injury as defined, and the injury as defined must not be an intentional self-inflicted injury. On this construction s 14(3) says nothing about death by suicide in a case such as the present, because it could apply only if the 14 November 1994 injury was an intentional self-inflicted injury. On another view, the first injury is an injury as defined and the second injury is an act of injuring; this appears to have been the view taken in Bird v Australian Iron & Steel Pty Ltd. On this construction s 14(3) can arguably apply to death by suicide in a case such as the present, because the death of a worker by suicide could be said to be caused by an intentional self-inflicted act of injuring.

34    There may be some difficulties, despite the hallowed past of the approach, in inquiring into insanity as going to causation in a suicide case.

35    First, the premise is that, absent a finding of insanity, the intentional act of suicide would break the chain of causation between the injury and the death. But it is now more readily recognised that in causation, said to be a question of fact although tempered by value judgments and infused with policy considerations because with a view to allocating legal responsibility (March v E & M H Stramare Pty Ltd (1991) 171 CLR 506), an intentional act even of the person wronged may not break the chain of causation. The intentional act may be part of the chain of causation, for example the resignation of the plaintiff in Medlin v State Government Insurance Commission (1995) 182 CLR 1; the reasons of Deane, Dawson, Toohey and Gaudron JJ include (at 10) -

“The necessary causation between a defendant's negligence and the termination of a plaintiff's employment, in the sense that the termination of the employment is the product of an accident-caused loss of earning capacity, can exist notwithstanding the fact that the immediate trigger of the termination of the employment was the plaintiff's own decision to retire prematurely. If, for example, it appears that a plaintiff's decision to retire prematurely would not have been made were it not for the fact that the effect of accident-caused injuries is that continuation in employment would subject him or her to constant pain and serious risk of further injury, it may well be that commonsense dictates the conclusion that the plaintiff's decision to retire prematurely was a natural step in a chain of causation which suffices to designate, for the purposes of the law of negligence, the termination of the employment as a product of those injuries.”

36    If this be so, I do not see why, if the facts be appropriate, death by suicide could not be found to have resulted from work-related injury without a finding that the worker was insane.

37    Secondly, describing the inquiry as one into insanity may mislead. Insanity is a concept of varying content, and the true inquiry (if the validity of any such inquiry be assumed) is into the worker’s mental state so that it might be found whether his suicide should be regarded as an intentional act. The test of dethronement of the power of volition has been adopted, and it does not necessarily turn on insanity. The law recognises in contexts not involving insanity that the will may be overborne or subjected to such influences that, although an act is deliberate, it is not regarded as the actor’s intentional act. In the context of duress, for example, Lord Simon said that duress “deflects, without destroying, the will of one of the contracting parties” (Director of Public Prosecutions for Northern Ireland v Lynch (1975) AC 653 at 695), and Lord Scarman took as one of the elements of duress “pressure amounting to the compulsion of the will of the victim” (Universe Tankships Inc of Monrovia v International Transport Workers Federation (1983) 1 AC 366 at 400). Lord Scarman said that the classic case of duress is “not the lack of will to submit but the victim’s intentional submission arising from the realisation that there is no other practical choice open to him” (ibid). Suicide, while deliberate, may often (but not always) be the product of a will so overborne or influenced by the worker’s circumstances that it should not be regarded as an intentional act breaking the chain of causation. Insanity is not a necessary step to this result.

38    If s 14(3) on its proper construction can apply to death by suicide in a case such as the present, which as will be seen it is not necessary to decide, the same considerations arise. Although the section refers to intentional self-inflicted injury, the deliberate act of suicide may be the product of a will so overborne or influenced by the worker’s circumstances that it should not be regarded as an intentional act.

39    In asking whether the worker was insane at the time of his suicide the trial judge followed the traditional line of cases to which I have referred, apparently regarding insanity as going to causation rather than s 14(3). After referring to the cases, he said:

“The defendant’s [sic] succeed if suicide was the result of insanity and the insanity was the direct result of the injury sustained. If the depression affecting the deceased was so great that he had lost the ability to control his suicidal impulses, the power of his volition would be seriously compromised. It seems to me clear on the evidence, the evidence of the widow, the evidence of the treating psychologists and of Mr Ervine, that the deceased’s chronic serious depression was affecting him to such an extent that he had lost the ability to control his suicidal impulses. This appears also clear from the suicide notes which he wrote before his death.
Since it seems to me that the deceased’s power of volition was seriously compromised, I find that he was insane at the time of his death, so that his mind was so unhinged as to dethrone his power of volition, and that this condition was casually [sic: causally] related in a relevant sense or materially contributed to by the injury the deceased had sustained in November 1994, which required constant treatment and which had compromised his life.”

40    The appellant did not contend that the trial judge was in error in following these cases. Indeed, it said that he applied the correct test. Its submission was that there was no evidence on which the trial judge could have found that the worker was insane when he committed suicide, because the question of insanity required expert medical evidence based on established facts and there was no such expert evidence; it also put as a separate submission that the trial judge failed to give effect to s 14(3). In the light of what I have said, there could only have been a failure to give effect to s 14(3), assuming that on its proper construction it can apply to the worker’s death, if there was no evidence on which the trial judge could have found that the worker was insane when he committed suicide. The submissions turn on the same question.

41    I do not think it matters that the finding was in terms of insanity, as it was in truth a finding that the worker had “lost the ability to control his suicidal impulses” and his “power of volition was seriously compromised”. It is not necessary to take further, in the present case, the possible difficulties in the traditional line of cases, or to decide whether s 14(3) now governs death by suicide when considering whether death resulted from an injury. On the approach taken by the trial judge, accepted by the appellant to have been correct, if there was evidence on which the finding could have been made there was no error in point of law. The finding would be equally inviolate if removed from the perhaps misleading aura of insanity and seen as a finding that the worker’s suicide was not an intentional act breaking the chain of causation, and if seen as a finding that the worker’s suicide was not an intentional self-inflicted injury within s 14(3). If s 14(3) on its proper construction can apply to death by suicide in a case such as the present, the finding negates its application in this case.

42    The question for the trial judge was one of fact, the worker’s mental state. It did not turn on a medical concept of insanity. It was a question of fact the trial judge could decide on the evidence of the worker’s injury and its effect, without expert medical evidence, and there was no need for the special experience of an appropriately qualified medical practitioner (cf MMI Workers Compensation (NSW) v Kennedy (1993) 9 NSWCCR 482 at 489). That is not to say that expert medical evidence would not have been admissible and valuable, but there was no error in point of law in making the finding in its absence.

43    The evidence of the injury of 14 November 1994 and its effect on the worker, culminating in the notes left for his wife and his parents, underpinned the trial judge’s finding. For present purposes, the question is not whether the finding was correct or incorrect. There was evidence on which the finding could be made. Nor does it matter that Dr Lovell, a psychiatrist, expressed the opinion that on the balance of probabilities the worker “could not be regarded as being insane at the time of his death despite his blood alcohol level”. The significance of Dr Lovell’s opinion is not easy to judge when he was not asked to elucidate what he meant by insanity, but in any event the fact that there was evidence to the contrary of the trial judge’s finding does not mean that there was error in point of law.

44    The appellant submitted in the alternative that the trial judge had failed to give sufficient reasons to explain his conclusion as to insanity.

45    The trial judge had, as already noted, carefully examined the course of events and the medical and related opinions, and had referred to the cases to enunciate what the appellant acknowledged was the correct legal test. He had come to his finding in the passage earlier set out. The process of reasoning was clear.

46    The appellant suggested that the trial judge “failed to address” a number of “issues”. The “issues” came down to the absence of expert medical evidence of insanity, the evidence from the wife of the worker to the effect that the worker was not unduly depressed and reasonably lucid shortly before his death, the contention that the suicide involved a degree of premeditation, and the fact that the worker’s parents were not called to give evidence. The trial judge included the wife’s evidence in his account of the facts, and there is no reason to think he overlooked any of the “issues”. I do not think his reasons were inadequate for want of specific mention of any of the “issues” at the time he stated his findings.

Dependence

47    The appellant submitted that there was no evidence of total dependency of the child on the worker.

48    The worker had separated from his wife in September 1995. The child remained with the wife. The worker was paying maintenance for the child, although not regularly because he did not have enough money. His taxation refund cheque would go to his wife to make up the irregular payments. At the time of the injury and at all times thereafter the worker’s wife was in employment. At the time the worker was injured her income was approximately the same as his, and it had thereafter increased.

49    In Aafjes v Kearney (1976) 180 CLR 199 it was held that there was evidence on which a finding of total dependency could be made when the child was entitled to be maintained by the worker, even thought the wife had remarried, the child lived with her and the child’s stepfather, and the wife made some contribution to the child’s support.

50    According to Meagher JA in McCafferty’s Management Pty Ltd v Pimlott (CA, 5 December 1995, unreported), if the worker was under a legal obligation to support his child, the child was totally dependent on him even if the worker’s wife was under an equal obligation. The family was living as a unit at the time of the worker’s death, with both the worker and his wife in employment, and Clarke JA considered that it was open as a matter of law to find total dependency.

51    Dependence does not look only to the fact of receipt of support, but also to reliance on another to provide it. Total dependence is not incompatible with the fact of receipt of support from someone else. There was evidence in the present case on which the trial judge could find total dependency.

52    In my opinion, the appeal should be dismissed with costs.

53    HEYDON JA: I agree with Giles JA.

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