James Allen Rose-Barnett & ors by their representative Sharyn Gaye Rose v Ta Edison Pty Ltd

[2008] NSWWCCPD 10

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:James Allen Rose-Barnett & ors by their representative Sharyn Gaye Rose v T A Edison Pty Ltd  [2008] NSWWCCPD 10

APPELLANTS:  James Allen Rose-Barnett; Benjamin Luke Rose-Barnett and Kyle Mathew Rose-Barnett by their representative Sharyn Gaye Rose

RESPONDENT:  T A Edison Pty Ltd

INSURER:CGU Workers Compensation (NSW) Limited

FILE NUMBER:  WCC5253-07

DATE OF ARBITRATOR’S DECISION:          9 October 2007

DATE OF APPEAL DECISION:  30 January 2008

SUBJECT MATTER OF DECISION: Death claim; Meaning of “stands in the place of a parent” in section 4 of the Workplace Injury Management and Workers Compensation Act 1998

PRESIDENTIAL MEMBER:  Deputy President Bill Roche

HEARING:On the papers

REPRESENTATION:  Appellant:      Taylor & Scott Lawyers

Respondent:    Turkslegal

ORDERS MADE ON APPEAL:  Paragraph two of the Arbitrator’s determination dated 9 October 2007 is revoked and the following order made:

“The matter is remitted to the same Arbitrator to assess the quantum of the compensation payable to James Allen Rose-Barnett; Benjamin Luke Rose-Barnett and Kyle Mathew Rose-Barnett under sections 25 and 26 of the Workers Compensation Act 1987.”

Paragraphs one, three, four, five, six, seven, eight and nine of the Arbitrator’s determination of 9 October 2007 are confirmed.

The Respondent Employer is to pay the Appellants’ costs of the appeal.

BACKGROUND TO THE APPEAL

1. In the course of performing work for Mr Van Den Bruggen on 27 October 2004 Paul Dudley Hunt (‘the deceased/Mr Hunt’) was electrocuted.  As a result of his injuries, he died on 27 January 2005.  Mr Van Den Bruggen had been contracted by T A Edison (the Respondent Employer) to install a MATY system in a commercial building at 52 Railway Parade, Burwood. 

1. The Arbitrator found that as at 27 October 2004 Mr Van Den Bruggen did not hold a policy of insurance under the Workers Compensation Act 1987 (‘the 1987 Act’) and that he was not a self-insurer under that legislation. That finding being made by the Arbitrator, counsel for the Respondent Employer conceded that his client was liable as a principal under section 20 of the 1987 Act (Statement of Reasons for Decision (‘Reasons’), paragraph four). It was also conceded that the deceased was a worker or deemed worker employed by Mr Van Den Bruggen on 27 October 2004 (Reasons, paragraph five).

1. The deceased left several people dependent on him for support.  Without recounting the full history of the pleadings, the claimants were ultimately identified as:

First Applicant:     Jessica Madeline Hunt (the deceased’s eldest daughter, ‘Jessica’);

Second Applicant: Samantha Josephine Hunt (the deceased’s daughter,       ‘Samantha’);

Third Applicant:     Sharyn Gaye Rose (the deceased’s de facto wife, ‘Ms Rose’);

Fourth Applicant:  James Allen Rose-Barnett (Ms Rose’s eldest son, born 27   August 1990, ‘James’);

Fifth Applicant:     Benjamin Luke Rose-Barnett (Ms Rose’s second son, born 15 January 1993, ‘Benjamin’);

Sixth Applicant:    Kyle Mathew Rose-Barnett (Ms Rose’s youngest son, born 18 March 1995, ‘Kyle’).

1. Mr Hunt is not the biological father of Ms Rose’s children.  Though Ms Rose has a fourth child (Kristy Alice Rose-Barnett), that child is not an applicant for compensation.  The Arbitrator found, and it is not challenged on appeal, that:

(a)Mr Hunt started living with Ms Rose and her children in December 2003, having met her in June 2002 (Reasons, paragraph 60);

(b)on 2 October 2004 Mr Hunt and Ms Rose entered an agreement to lease premises together at 41 Hillcrest Street, Terrigal for rent of $310.00 per week for a term of six months commencing on 2 October 2004 (Reasons, paragraph 61), and

(c)by at least 2 October 2004 the relationship between Mr Hunt and Ms Rose was a genuine de facto relationship (Reasons, paragraph 66), which continued up to the date of Mr Hunt’s death (Reasons, paragraphs 67 and 68).

1. The Arbitrator found that all of the Applicants were partly dependent for support on the deceased, but only awarded compensation to Jessica, Samantha and Ms Rose.

1. In respect of the claims by James, Benjamin and Kyle, the Arbitrator found:

(a)that they were not Mr Hunt’s stepsons (Reasons, paragraphs 92-96);

(b)notwithstanding that the boys were not Mr Hunt’s stepsons, it remained to be determined whether they were persons to whom Mr Hunt stood “in the place of a parent” under section 4 Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), and

(c)the boys were not persons to whom Mr Hunt stood in the place of a parent and were therefore not entitled to compensation (Reasons, paragraph 98 –109).

1. On 6 November 2007 James, Benjamin and Kyle (‘the Appellants’) filed an Appeal Against Decision of Commission Constituted by Arbitrator. As all of the Appellants are under the age of 18 years the Commission has by Direction issued on 16 January 2008 appointed Ms Rose to represent them in the appeal (see Part 6 Rule 6.2 of the Workers Compensation Commission Rules 2006). By statement dated 21 January 2008 Ms Rose agreed to represent the Appellants in the appeal and to waive her right to be heard.

1. The Appellants served the appeal on the solicitor for Jessica and Samantha, Slater & Gordon, on 15 November 2007.  By letter dated 18 January 2008 Slater & Gordon informed the Commission that they did not intend to file any submissions on behalf of Jessica.  I assume that they have adopted the same position in respect of Samantha.

1. The essential issue on appeal is whether the Arbitrator erred in not finding that James, Benjamin and Kyle were persons to whom the deceased stood in the place of a parent.

LEAVE TO APPEAL

Monetary Threshold

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

1. There is no issue that the thresholds in section 352(2)(a) and (b) are satisfied.

Time

1. The appeal was lodged on 6 November 2007, within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

1. I grant leave to appeal.

PRELIMINARY MATTERS

1. Section 354(6) of the 1998 Act provides:

“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. 

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 9 October 2007, records the Arbitrator’s orders as follows:

“The determination of the Commission in this matter is as follows:

1.That Sharyn Rose, James Rose-Barnett, Benjamin Rose-Barnett and Kyle Rose-Barnett be the [sic], respectively, the third, fourth, fifth and sixth Applicants to these proceedings and not Respondents to these proceedings. 

2.That there be an award for the Respondent with respect to the claims of James Rose-Barnett, Benjamin Rose-Barnett and Kylie [sic] Rose-Barnett.

3.That the Respondent pay Jessica Hunt as compensation under Section 25(1)(b) of the Workers’ Compensation Act 1987:

a.$93.10 a week for the period 28 January 2005 to 31 March 2005;

b.$94.60 a week for the period 1 April 2005 to 30 September 2005;

c.$96.50 a week for the period 1 October 2005 to 31 March 2006; and

d.$98.50 a week for the period 1 April 2006 to 17 August 2006.

4.The Respondent pay Jessica Hunt as a compensation under Section 26 of the Act the amount of $33,868.00;

5.The Respondent pay Samantha Hunt as compensation under Section 25(1)(b) of the Act

e.$93.10 a week for the period 28 January 2005 to 31 March 2005;

f.$94.60 a week for the period 1 April 2005 to 30 September 2005;

g.$96.50 a week for the period 1 October 2005 to 31 March 2006; and

h.$98.50 a week for the period 1 April 2006 to 30 September 2006;

i.$100.40 a week for the period 1 October 2006 to 31 March 2007;

j.$102.30 a week for the period 1 April 2007 to 30 September 2007;

k.$104.10 a week from 1 October 2007

and to continue in accordance with the provisions of the Act;

6.That the Respondent pay Samantha Hunt as compensation under Section 26 of the Act the amount of $37,249.80;

7.The Respondent pay Sharyn Rose as compensation under Section 26 of the Act the amount of $49,224.90.

8.The Respondent pay each of the Applicant’s costs as agreed or assessed;

9.The costs of each party for Item F of Table 1 of Schedule 6 to the Regulation be increased by 30%.”

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are whether the Arbitrator erred:

(a)in not finding that the deceased stood in the place of a parent to James, Benjamin and Kyle, and

(b)in not awarding James, Benjamin and Kyle compensation under section 25(1)(b) and section 26 of the 1987 Act.

REVIEW

1. The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission.  In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:

“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”

1. The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:

“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”

1. This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’).  To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).

1. The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 where Spigelman CJ said at [28] and [30]:

“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.

30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”

1. Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion.  The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).

1. I intend to apply the above principles in the matter before me.

SUBMISSIONS

1. The Appellants submit:

(a)that the Arbitrator accepted that the deceased financially supported them (Reasons, paragraph 78);

(b)that shortly before his death Mr Hunt determined to move into new and larger premises with Ms Rose and them, and he accepted joint legal responsibility for the provision of accommodation for them;

(c)that the evidence of the role played by Mr Hunt in their support is set out at paragraph 104 of the Arbitrator’s Reasons where he said:

“The evidence establishes that Mr Hunt provided financially for the children in that he paid money to Sharyn to assist with their household budget, in which household Mr Hunt, Jessica, Sharyn and her three youngest children resided.  He thus contributed to ensuring the children had shelter and victuals, which of course is necessary for their well-being.  He also involved himself in their sport, particularly James, whom he took to rugby league training and games, including a game in Coffs Harbour.  The evidence relating to the extent to which he involved himself in the other children’s sport is that ‘when possible’ he took them to training and matches.  There is evidence that he took the children fishing.  The evidence also indicates that he spoke to the children about their transferring to Terrigal High School when he and Sharyn took a lease of premises in Terrigal. Beyond that there is no specific evidence of the role Mr Hunt played in mentoring these children with respect to any matter.”

(d)despite this evidence the Arbitrator found that there was “scant evidence” (Reasons, paragraphs 103, 106 and 107) to substantiate a finding that Mr Hunt stood in the place of a parent to them;

(e)whether a worker stands “in the place of a parent” is essentially a question of fact.  Reliance is placed on Chartier v Chartier 1999 CanLII 707 (S.C.C.); (1999) 168 D.L.R. (4^th) 540 (‘Chartier’) where the Supreme Court of Canada considered whether a man stood in the place of a parent in the context of the Divorce Act, R.S.C 1985 when his former wife sought an order for child support where the man was not the child’s biological father.  The headnote to that case states, among other things:

“A determination of whether a person stands in the place of a parent must take into account all relevant factors, viewed objectively.  The court must determine the nature of the relationship and do so by looking at a number of factors, including intention.  Intention will not only be expressed formally.  The court must also infer intention from actions and take into consideration that even expressed intentions may sometimes change.  The actual fact of forming a new family is a key factor in drawing an inference that the step‑parent treats the child as a child of the marriage.  Some of the relevant factors in defining the parental relationship are:  whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; and, the nature or existence of the child’s relationship with the absent biological parent.”

(f)applying the reasoning in Chartier, there is a well founded basis to conclude that the deceased stood in the place of a parent with respect to them;

(g)to the extent that the Arbitrator considered to what extent the deceased “displaced” the natural parent, the Arbitrator erred.  The fact of dependency is a factual enquiry;

(h)the Arbitrator erred in giving no weight to the fact that the deceased lived in a de facto relationship with their mother who was partially dependent on him;

(i)the Arbitrator gave no weight to the fact that the deceased contributed $300.00 [sic] per week to the care and sustenance of the family, including them;

(j)the deceased:

i.lived in the same house as them;

ii.lived in a de facto relationship with their mother;

iii.partially supported Ms Rose;

iv.contributed $300.00 [sic] per week to the family;

v.had joint responsibility for the lease of the house in which they lived;

vi.set up house with Ms Rose and them;

vii.took an active interest in their educational activities, and

viii.took an active interest in their sporting and recreational activities.

1. The Respondent Employer submits:

(a)the Arbitrator applied the correct approach;

(b)there is little evidence to support a conclusion that the deceased was involved in all aspects of the physical, mental, moral, educational and general welfare of the children and that he could make definitive decisions about those issues;

(c)the children had a solid relationship with their biological father;

(d)the Arbitrator did consider the fact that the deceased was in a de facto relationship with Ms Rose;

(e)the fact that the deceased took an interest in the Appellants’ educational, sporting and recreational activities does not prove that he acted in the place of a parent;

(f)the sum of $300.00 per week was not substantial and would not have been enough to support three children.  It was merely a contribution to the living and accommodation expenses on the deceased’s own behalf;

(g)the Arbitrator’s decision was within his discretion and he made no errors in coming to his decision;

(h)Aafjes v Kearney [1976] HCA 5; [1975] 180 CLR 199 (Aafjes) supports the view that biological parents have a legal obligation to support their children and de facto partners do not have the same obligation.  It also supports the view that the provision of accommodation by a worker to a de facto partner’s children does not automatically make those children partially dependent on the worker, and

(i)the deceased’s interest in the children’s sporting and recreational activities together with his decision to rent a home with Ms Rose should only be considered to be in the interests of maintaining his relationship with Ms Rose and not as evidence of him stepping into the place of a parent.

PRELIMINARY MATTERS

1. The reference to Mr Hunt contributing $300.00 per week to the family is not consistent with the evidence from Ms Rose at paragraph nine of her statutory declaration dated 29 June 2006 that he contributed $400.00 per week, which was accepted by the Arbitrator (see his Reasons at paragraph 77).

1. The Arbitrator’s finding that the Appellants were not Mr Hunt’s stepchildren is not challenged on appeal.

DEPENDENCY

1. The term “dependant” is defined in section 4 of the 1998 Act as follows:

“dependants of a worker means such of the members of the worker’s family as were wholly or in part dependent for support on the worker at the time of the worker’s death, or would but for the incapacity due to the injury have been so dependent, and includes:

(a) a person so dependent to whom the worker stands in the place of a parent or a person so dependent who stands in the place of a parent to the worker, and
(b) …

(c) …”

1. The definition involves two concepts and, to be entitled to compensation, an Applicant for benefits under sections 25 and 26 of the 1987 Act must satisfy both. First, an Applicant must be “a member of the worker’s family” and, second, he or she must be a “dependant of the worker” who was “wholly or in part dependent for support on the worker” at the time of death (‘dependency’). The definition includes a person who is wholly or in part dependent for support on the worker “to whom the worker stands in the place of a parent”.

1. I do not understand the Respondent Employer to formally challenge the Arbitrator’s finding that the Appellants were partly dependent for support on Mr Hunt.  If I am wrong and such a challenge is made, I reject it.  The Arbitrator found that Mr Hunt paid $400.00 per week to Ms Rose, which was pooled with other money and used to pay rent and household expenses (Reasons, paragraphs 77 and 78).  That finding was open on the evidence and discloses no error.  I do not accept the submission that Mr Hunt’s contribution was only a contribution to “the living and accommodation expenses on the deceased’s own behalf”.  Ms Rose used the money she received from Mr Hunt to provide for the family.  Ms Rose’s boys were part of that family and clearly benefited, albeit in a very modest way, from Mr Hunt’s financial contribution. 

THE ARBITRATOR’S APPROACH

1. The Appellants argue that the Arbitrator erred in considering the extent to which the deceased “displaced” the natural parents.  I do not accept this submission.  The Arbitrator did not use the term “displaced”.  He considered the responsibilities and powers of a biological parent (Reasons, paragraph 102) and then considered to what extent the deceased fulfilled those responsibilities with respect to James, Benjamin and Kyle.  In other words, he considered the extent to which the deceased stood in the place of a parent.  In my view, that is precisely the question posed by the legislation. 

1. Whilst the Arbitrator considered it useful to have regard to the functions being fulfilled by the natural parents he did not consider it necessary that a worker be a “surrogate parent of the person in the sense of substituting completely for an absent parent” (Reasons, paragraph 101) in order to stand in the place of a parent within the terms of section 4 of the 1998 Act. The Arbitrator did not consider the fact that the natural parents also played a role in the upbringing of their children necessarily disqualified a child from coming within the definition in section 4. He added that the worker’s role with respect to the child “must be substantial and more than just taking an interest or providing limited assistance with the upbringing of the child” (Reasons, paragraph 101). This approach was reasonable and appropriate, and I agree with it.

1. The Arbitrator concluded that the evidence relating to how and the extent to which Mr Hunt fulfilled the responsibilities and powers of a parent was “particularly scant” (Reasons, paragraph 107) and did not enable him to conclude that Mr Hunt stood in the place of a parent to the three boys. 

1. However, whilst the Arbitrator’s general approach was appropriate, the application of that approach in this matter has to be considered in the light of all the evidence, the authorities referred to below, the objectives of the legislation and the fact that the Workers Compensation Acts (the 1987 Act and the 1998 Act) are beneficial legislation.  Under “System Objectives”, Section 3(c) of the 1998 Act provides that the purpose of the Act is to, among other things, “provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, and payment for reasonable treatment and other related expenses.”  Entitlements under beneficial legislation should not depend on “distinctions which are too nice” (per Mahony JA in Articulate Restorations & Developments Pty Ltd v Crawford (1994) 10 NSWCCR 751 at 765). At the same time, the principle thatbeneficial legislationshould be given a liberal construction does not entitle a court to give it a construction that is unreasonable or unnatural (per McColl JA in Amaca Pty Ltd  v Cremer & ors [2006] NSWCA 164, citing IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 (at 11 – 12) per Brennan CJ and McHugh J).

THE AUTHORITIES

1. The expression “in the place of a parent” has been considered in several authorities.  In Nash v The Commissioner for Railways [1963] SR (NSW) 357; [1963] NSWR 30 (‘Nash’) the Full Court was concerned with a claim under the Compensation to Relatives Act, 1897-1953.  The plaintiff claimed damages on behalf of himself and his wife, and on behalf of a child to whom the plaintiff’s deceased son allegedly stood in loco parentis.  In this context, the Court said at 362:

“What the Act appears thus to embrace is a state of notional parenthood, of de facto incorporation into a family, irrespective of ties of blood, marriage or adoption, and regardless of legitimacy.  It would accordingly not appear to be sufficient, to found a claim under the ‘in loco parentis’ relationship, merely to show that the deceased, either in the role of ‘father’, or of ‘child’, provided, or might reasonably have been expected to provide, benefits or services measurable in money to another member of the family. It is necessary to show that the ‘father’ stood in the shoes of an actual father, and the ‘child’ in the shoes of an actual child, looking to the ‘father’ for care, protection, maintenance and upbringing, as the ‘father’ looked to him, perhaps, ultimately, for some support in his declining years. We are, in other words, not concerned,...merely to seek a person taking upon himself the duty of making financial provision for a child, and a child so provided for; what must be shown is a relationship of foster parent and foster child with all its incidents.”

1. The Court held that there was evidence that before the birth of the child the deceased “was planning for its care, maintenance and upbringing” (362), which was sufficient to show a proposed parent-child relationship with all its incidents.  There was therefore sufficient evidence that the deceased stood in loco parentis to the child.

1. In Roser v Waltons Ltd [1974] WCR 138 (Roser) Judge Ferrari held that the words “child of the worker” used in section 8(1)(b) of the Workers Compensation Act 1926 (the 1926 Act) included an ex nuptial child born to the deceased’s daughter after his death.  Though it was not necessary for the determination of the matter, his Honour also considered whether the child was “a person to whom the worker stood in loco parentis” within the meaning of section 8(1) of the 1926 Act.  His Honour considered and distinguished Nash, saying at 148:

“Under the Workers’ Compensation Act, it is between the injured or deceased worker and the dependant that the in loco parentis relationship must exist.  The relevant entitlement of the dependant is itself in respect of support proceeding from the relationship, and (save in respect of the arbitrary provision in respect of total dependency and its operation as a maximum) the extent of that support is the measure of the compensation.”

1. His Honour added at 149 that:

“it must at any rate suffice that he [the deceased worker] assumed to provide shelter and food and clothing, as a father would, during childhood or for an indefinite period, and I do not think it matters that he might have done this under circumstances that left it likely that the child’s mother would also contribute to the child’s support.  In this and in other respects, it would seem unlikely that the quasi father should have to aspire beyond the standards of fathers themselves.” (emphasis added)

1. Whilst I am far from satisfied that Nash can be distinguished for all of the reasons suggested by Ferrari J (at 148 and 149 of Roser), it is correct that Nash was concerned to determine what was meant by the term in loco parentis in the particular context of the Compensation to Relatives Act and is therefore not binding on me.  Nevertheless, it is obviously of considerable persuasive weight in determining the question before me.

1. Nash was also considered by Judge Blaxell in Gary Charles Armstrong by his next friend Katrina Theresa O’Pray & ors -v- Proctor [2003] WADC 252 (‘Armstrong’).  This case concerned a claim for damages under the Fatal Accidents Act 1959 (WA). Under that Act the plaintiffs were entitled to recover damages if they were a “relative” of the deceased (Mr Armstrong) who was killed in a car accident due to the fault of a third party. The Act defines “relative” to include “(e) any person who stood in loco parentis to the deceased person immediately before his death”. 

1. His Honour noted (at [11]) that Bennet v Bennet (1879) 10 Ch D 474, 477 and McIntosh v Williams [1976] 2 NSWLR 237, 249 (McIntosh) suggest that “it may be enough to show that the deceased took on the duty of a father to provide for or support each child”.  His Honour also referred to the Attorney General’s Second Reading Speech in respect of the Amendment Bill (Hansard 24 March 1984 p 6463-4) which showed the focus of the Bill was:

“…to extend the class of persons who may claim under the Act, by bringing in a number of people who were members of the deceased person’s household or dependent upon him.” (at [13])

1. After quoting the Second Reading Speech his Honour added, at [14]:

“This suggests that the decision in Nash provides too narrow a basis on which to construe the Act. It follows in my view that on a proper construction of the Act it is enough to establish a loco parentis relationship if there is proof that the deceased took upon himself the duty of a parent to contribute to the financial support of a child.” (emphasis added)

1. In Armstrong, the deceased lived with the children and their mother (Mrs O’Pray) as a family for about two years.  In this time he developed a close relationship with the children, who called him ‘Dad’, and provided financial support to the family as a whole. After two years he left the family home to live in a caravan at the back of Mrs O’Pray’s mother’s house a short distance away.  He continued to see Mrs O’Pray and the children, have nearly all his meals with them, provide financial support to them, participate in activities with the children, provide them with pocket money, attend school events and help them with their homework.  In these circumstances the Court held that the evidence “clearly” established that the children were persons to whom the deceased stood in loco parentis immediately before his death.

1. In Chartier, the Supreme Court of Canada had to determine whether a child was a “child of the marriage” under the Divorce Act, R.S.C 1985.  A “child of the marriage” under that Act includes “(b) any child of whom one is the parent and for whom the other stands in the place of a parent”.  The Court considered (at [39]) the following matters to be of importance in determining if a person stands in the place of a parent:

(a)the fact of forming a new family is a key factor in drawing an inference that the step-parent treats the child as a member of his or her family;

(b)whether the child participates in the extended family in the same way a biological child would;

(c)whether the person provides financially for the child (depending on ability to pay);

(d)whether the person disciplines the child as a parent would;

(e)whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child, and

(f)the nature or existence of the child’s relationship with the absent biological parent.

DISCUSSION AND FINDINGS

1. The question to be determined has been described as “probably one of the most difficult of legal problems to solve” (James LJ in Fowkes v Pascoe (1875) 10 Ch. App. 343 at 350). With the passage of time and the constantly changing dynamics and make up of the modern family, the problem has not become any easier.

1. Having regard to the above authorities and the beneficial nature of the workers compensation Acts, it is my view that a worker is in the place of a parent where he or she accepts, in a real and substantial way, the responsibilities of a parent to provide for the care, maintenance and upbringing of the child concerned.  The provision of shelter, food and clothing (Roser) will be an important and often a critical factor, but it is equally important to consider the circumstances in which the worker provides the shelter, food and clothing and the nature of the relationship the worker has with the child.  The nature of a parental relationship “is complex and includes more than financial support” (Chartier, at [43]). A generous relative may provide financial support for a child, but not be in the place of a parent. To come within the terms of section 4 of the 1998 Act the worker must also assume responsibility for other aspects of the child’s upbringing, as a parent would.

1. Whilst a parent’s responsibilities with respect to a child extend to every aspect of the child’s life, including the physical, mental, moral, educational and general welfare of a child (Reasons, paragraph 102, citing Secretary Department of Health & Community Services v JWB & SMB [Marion’s Case] (1992) 175 CLR 218), that does not mean that it must established that the worker assumed responsibility for every aspect of a child’s upbringing before he or she can be said to be in the place of a parent. The evidence must, however, establish that the worker accepted and fulfilled, in a significant and meaningful way, the responsibilities of a parent with respect to the child’s care, maintenance and upbringing. The fact that the worker merely provided support to the child (financial or otherwise) will be a factor relevant to that determination, but will not, on its own, be determinative.

1. The question is one of fact and degree that requires careful consideration of all the circumstances of the relationship.  The Appellants submit that there is a well founded basis to conclude that Mr Hunt stood in the place of a parent to them and that the Arbitrator erred in not reaching that conclusion.

1. The evidence in favour of finding that Mr Hunt stood in the place of a parent in respect of the boys is that he:

(a)lived with Ms Rose, her three boys, and Jessica as a family;

(b)made a financial contribution, albeit a limited one, to the family’s expenses.  That money contributed to the cost of rented accommodation for the family and “other requirements including phone, food, petrol and clothing” (Ms Rose’s statement 29 June 2006, paragraph nine);

(c)regarded James, Benjamin and Kyle “as his own and he provided for them as well as his daughter Jessica as best he could” (Ms Rose’s statement 29 June 2006, paragraph 13);

(d)signed a lease with Ms Rose for larger accommodation for the family at Terrigal;

(e)convinced James to get involved in rugby league and play on weekends;

(f)drove James to his training sessions and all games;

(g)attended with James at an end of season parents’ trip away with James’ rugby league team to Coffs Harbour;

(h)took Benjamin and Kyle to cricket training and matches, when possible;

(i)took James, Benjamin and Kyle fishing on a number of occasions;

(j)always bought presents for James, Benjamin and Kyle on their birthdays and other special occasions such as Easter and Christmas;

(k)played a role in the boys’ development and had a say in the way they lived their lives, and

(l)had a lot of input as to where the boys went to school and spoke to each boy individually about the move to Terrigal and the choice of schools available in Terrigal.

1. In addition, Ms Rose stated that James, Benjamin and Kyle “all regarded Paul as their stepdad and when they were talking to people they used the phrase ‘my stepdad’” (Ms Rose’s statement 17 August 2007).

1. Against this evidence, the Arbitrator made the following observations at paragraph 106 of his Reasons:

(a)there was no evidence regarding the extent to which Mr Hunt assisted the children or mentored them with respect to their development through their teenage years or whether they turned to their father;

(b)there was no evidence that Mr Hunt involved himself in the discipline of the children;

(c)there was no evidence that Mr Hunt concerned himself with the children’s health requirements or that he took them to medical appointments or attended to them when they were sick;

(d)there was no evidence that Mr Hunt involved himself with the ensuring that the children were fed, bathed and clothed, or had their hair cut, and

(e)there was no evidence that Mr Hunt guided the children in matters of religion or moral dilemmas or problems with their peers.

1. It is true that the evidence did not deal with these issues in any detail. The determination of this case would have been much easier if it had. That does not, however, deny the significance and weight of the evidence set out at [49] above. Ms Rose’s evidence that Mr Hunt “played a role in the boys’ development and had a say in the way they lived their lives” was important evidence that Mr Hunt did “mentor” them in their formative years.

1. Whilst there is evidence that the boys had contact with their biological father, that evidence does not enable a conclusion to be drawn about the nature of that relationship or whether it was one that would have precluded Mr Hunt standing in the place of a parent.  No authority has been cited to suggest that a relationship with a biological parent necessarily prevents a person from standing in the place of a parent.  In Chartier, the Court merely noted that the relationship with the biological parent is one factor to take into account.  The question is whether, in all the circumstances, Mr Hunt stood in the place of a parent in his relationship with the boys.  The fact that they still had contact with their biological father did not diminish the nature of the relationship they had with Mr Hunt and did not preclude him from standing in the place of a parent under the terms of the 1998 Act.

1. I do not regard the lack of evidence about matters of discipline, health requirements, feeding, bathing and clothing to be significant in the ultimate determination of the case.  Though parenting is a shared responsibility, these matters are frequently left to the parent not engaged in outside paid employment.  The evidence is that Ms Rose did not work during her relationship with Mr Hunt and that she spent all her time looking after the extended family (Ms Rose’s statutory declaration 29 June 2006, paragraph 10).  Similarly, whether Mr Hunt guided the boys in religious matters or “moral dilemmas” was not determinative of whether he stood in the place of a parent.  Many parents leave religious matters to the church and moral issues to teachers and other people.  To the extent that the Arbitrator considered these matters to be decisive, he was in error.

1. The Arbitrator was unduly influenced by the lack of detailed evidence that Mr Hunt “assisted the children or mentored them with respect to the emotional turmoil” associated with their age (Reasons, paragraph 106).  Many parents, particularly fathers, do not assist or mentor their children through every stage of their development.  Some never provide that kind of support.  The evidence is that Mr Hunt played a real and significant role in the boys’ lives. 

1. The Arbitrator referred to the fact that the Appellants were relatively young when they lived with Mr Hunt and “would have depended heavily on others for virtually all of their needs, specifically discipline, guidance, religious affairs, health, clothing and the like” (Reasons, paragraph 105).  He considered that the responsibilities and powers of a parent for such young children were “broad and pervasive” and extended to “virtually all matters affecting their lives ranging from the mundane, such as ensuring their hair is combed, to the more serious, such as medical treatment and guidance in relation to morality and relationship[s] with peers” (Reasons, paragraph 105).  I agree that a parent’s responsibilities are broad and pervasive.  However, that does not mean that a worker is not in the place of a parent if he or she does not fulfil every one of those responsibilities.  It is not necessary that the evidence establish that he fulfilled the role of a perfect parent.  Where, as here, the children’s mother did not work and Mr Hunt did, it would have been surprising if he had accepted responsibility for every matter relating to the boys’ upbringing.  The absence of evidence that Mr Hunt involved himself in all such matters was not determinative and did not diminish the persuasive value of the evidence that Mr Hunt accepted substantial responsibility for the boys’ maintenance, welfare and upbringing, as a parent would. 

1. At paragraph 107 of his Reasons the Arbitrator stated that the evidence was vague and fell “far short of what is required to enable” him to conclude that Mr Hunt stood in the place of a parent to the Appellants.  I do not believe that the evidence fell short of establishing that Mr Hunt stood in the place of a parent.  I am comfortably satisfied that the evidence establishes that he had a close relationship with the boys and that he accepted a real and meaningful responsibility for their maintenance, welfare, education and upbringing.  He also provided them with guidance and support, as would a parent.  He involved himself in their lives in a real and substantial way such that he stood in the place of a parent with respect to them.  The Arbitrator was in error in finding to the contrary, such a finding being contrary to the overwhelming weight of the evidence.

1. The Respondent Employer relies on the principles discussed in Aafjes where Mason J observed that the fact that a stepfather allowed a child to live in the home he and her mother had established should not be regarded as a contribution by the stepfather to the child’s support or maintenance but “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 child’s total dependence for support on her biological father. Gibbs J made similar observations at 208.

1. However, the issue before the Court in Aafjes was not whether the stepfather stood in the position of a parent but whether the fact that the child lived with her mother and her stepfather detracted from the biological father’s legal obligation to provide support.  The Court held that it did not.  That does not determine, or provide any guidance in determining, the issue before me.  On the evidence before me, there is nothing in Aafjes that prevents Mr Hunt being found to be in the place of a parent. 

1. It follows that I do not accept the Respondent Employer’s submission that there is little evidence to support the finding that Mr Hunt stood in the place of a parent. 

1. I agree with the Respondent Employer’s submission that it is not sufficient to merely take an interest in a child’s sporting, educational and recreational activities in order to stand in the place of a parent.  However important those matters are to the determination of the issue (and they are certainly most relevant), there must also be an assumption of responsibility to provide support (both financial and otherwise), as a parent would, and an acceptance of the general responsibilities of being a parent.  Having carefully considered the whole of the evidence, I am satisfied that Mr Hunt accepted and fulfilled those responsibilities with respect to the boys.

DECISION

1. Paragraph two of the Arbitrator’s determination dated 9 October 2007 is revoked and the following order made:

“The matter is remitted to the same Arbitrator to assess the quantum of the compensation payable to James Allen Rose-Barnett; Benjamin Luke Rose-Barnett and Kyle Mathew Rose-Barnett under sections 25 and 26 of the Workers Compensation Act 1987.”

1. Paragraphs one, three, four, five, six, seven, eight and nine of the Arbitrator’s determination of 9 October 2007 are confirmed.

COSTS

1. The Respondent Employer is to pay the Appellants’ costs of the appeal.

Bill Roche

Deputy President  

30 January 2008

I TUYET WALLIS CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE