Johnson v Scott
[1989] TASSC 59
•25 October 1989
Serial No 58/1989
List "A""
CITATION: Johnson v Scott [1989] TASSC 59; A58/1989
PARTIES: JOHNSON, Tracey Lee
v
SCOTT, Andrew
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: WC 13/1989
DELIVERED ON: 25 October 1989
JUDGMENT OF: Wright J
Judgment Number: A58/1989
Number of paragraphs: 18
Serial No 58/1989
List "A"
File No WC13/1989
TRACEY LEE JOHNSON v ANDREW SCOTT
REASONS FOR JUDGMENT WRIGHT J
25 October 1989
The plaintiff Tracey Lee Johnson, of Broadmarsh claims to be a dependent female within the meaning of s3(1) of the Workers' Compensation Act 1927 who was wholly dependent on the earnings of Timothy John Triffett who died on or about 28 July 1988 as a result of injuries by accident arising out of and in the course of his employment with the defendant.
The plaintiff was born on 30 October 1969. She alleges that she commenced to live with the deceased worker at her parents' house at Broadmarsh in March 1985. She was then 15½ years old and was attending the Campania District High School. The deceased worker was born on 30 October 1966. The couple had first met each other in January 1985. They commenced a sexual relationship the following month. The plaintiff confided in her mother and told her that she wished to commence living with the deceased worker. After a family discussion it was decided that she could do so. The deceased worker moved in to her parents' home and thereafter he and the plaintiff shared a double bed and to all intents and purposes commenced living as a married couple.
The plaintiff and her mother gave evidence confirming the commencement and continuation of this somewhat unusual arrangement. No attack was made upon their credit worthiness but counsel for the defendant did submit that although the plaintiff and the deceased worker moved out of her parents' home in December 1985, and set up house together at other places in Tasmania where they lived together continuously until the date of his death, during the initial period of time from March 1985 to December 1985 whilst they were living under the parents' roof, the plaintiff could not be characterised as a dependent female within the meaning of the Workers' Compensation Act 1927. It was submitted firstly that the plaintiff was not then "a woman" being only 15½ years of age when the relationship commenced. It was also submitted that she could not be said to have "lived with him as if she were his wife" because in the eyes of the law she was not capable of contracting a valid marriage to him, and thirdly it was submitted that whatever the relationship it could not be characterised as "a permanent and bona fide domestic" relationship.
I reject all of these submissions. In my opinion, the term "a woman" simply denotes an adult female – not in the sense of a female who has attained the age of majority but rather one who has reached the age of puberty and is physically capable of entering into a sexual relationship with a male. There is no reason to suppose, and no authority has been quoted to me to lead me to conclude that the term "a woman" in s3 of the Workers' Compensation Act 1927 is intended to have any special or restricted meaning. In my opinion, it is used as no more than a synonym for a female who is no longer a child. Secondly, the requirement that a person claiming to be a dependent female shall demonstrate that she has lived with the deceased worker for not less than three years "as if she were his wife on a permanent and bona fide domestic basis" in my opinion, does not require her to establish that she was legally capable of entering into a marriage with the deceased worker at all times during that three year period.
The test predicated is a practical one. It requires the claimant to establish that, as a matter of fact, she and the deceased worker were behaving towards each other during the relevant period as a husband and wife would normally behave by providing mutual comfort and support, observing normal matrimonial duties and fulfilling normal matrimonial obligations. Whether the relationship of man and wife exists involves a consideration of the whole of their interpersonal relationships including such factors as, a) permanence; b) genuine emotional support; c) commitment to each other; d) financial support where appropriate and e) an indication to the world at large that the relationship exists. (See per Young J, Weston v Public Trustee [1986] 4 NSWLR p407 and In the Marriage of Pavey (1976) 25 FLR 450 at p455).
Counsel for the defendant also submitted that it was contrary to public policy to allow the claim of a dependent female under the Workers' Compensation Act 1927 when, for the purpose of proving her entitlement, it was necessary that she show that during some part of the relevant three year period, she was involved in a relationship which could have rendered the deceased worker liable to criminal prosecution for sexual intercourse with a young person under the age of 17 years (under s124 of the CriminalCode) and her mother, to prosecution for permitting unlawful sexual intercourse with a young person on premises (under s125 of the Code). It was submitted that the intercourse was unlawful up to the time that the plaintiff attained 17 years of age, notwithstanding the existence of a statutory defence available to the deceased worker under s124(3). This submission however was not supported by authority of any kind and when it is remembered that under the Marriage Act (Commonwealth), permission may be granted to a female as young as 14 to marry, it can be seen that the embargo upon intercourse with young women under the age of 17 years is by no means absolute.
To my mind, public policy would be more affronted by the notion that a young woman, perhaps with children to care for, should be shut out from the benefits intended to be conferred by social legislation of this kind because of her precocious sexual involvement with the deceased. Accordingly, I reject this submission also.
On the whole of the evidence I am satisfied that the plaintiff, for a period of not less than three years immediately before the date on which the deceased worker died, was a woman who, although not legally married to him, had lived with him as if she were his wife on a permanent and bona fide domestic basis. This finding satisfies the requirements of s3(1) of the Workers' Compensation Act and, provided the plaintiff can also show that she was dependent wholly or in part, upon the deceased worker's earnings at the date of his death, she is entitled to an award of compensation under Rule 2 of the Schedule to the Workers' Compensation Act 1927.
The plaintiff gave evidence that she left school at the end of July 1985 and then went straight to a job at Banjo's Bakery in Elizabeth Street, Hobart. She worked there as a bakery assistant for a period of three months and upon her employment being terminated, she applied for and was granted unemployment benefits by the Department ofSocial Security. She commenced receiving these benefits on or about 11 November 1985. To enable her to secure these benefits, she misrepresented the nature of the relationship which then existed between herself and the deceased worker. She told the Department that she was not living in a de facto relationship when plainly enough, she was. Had her general credibility as a witness been attacked, it may well be that the magnitude of her admitted mendacity would have seriously affected her prospects of success in the action. However, I should make it plain that I do not question the stance adopted by defence counsel in declining to challenge her veracity in the witness box. Indeed, it was plain to me that the plaintiff was essentially a truthful witness, despite the obvious fraud that she perpetrated upon the Department of Social Security. Consequently, her conduct in this respect only has relevance insofar as it bears upon the question of her dependency upon the deceased worker.
She continued receiving regular unemployment benefit payments from November 1985 up until the deceased worker's death. The total amount paid to her in this way appears to have been in the vicinity of $8,744.80. During the whole of this period of time the deceased worker was in regular employment and it is plain enough that he was contributing substantially to the day to day living expenses of the household consisting of himself and the plaintiff from his wages.
The plaintiff was asked how she spent the money which she received from the Department of Social Security. The evidence she gave was as follows:
"Well for starters with Tim's pay his pay went only on our very bare necessities, our complete budget, our food, our rent, our petrol, our bills money and whatever was left over we would have as pocket money and we would halve it. Now because Tim's budget, or Tim's money, came to only the exact amount it left us nothing to actually be able to afford and go and buy furniture, things like that etc. for a little house, so there wouldn't have been a hope in the world of us getting ahead without the Unemployment Benefits, so with the Unemployment Benefits I bought furniture for our home, I bought all requirements of furniture, I also bought a chain saw which Tim used to cut our wood with, I bought a lawn mower ... I bought a bed, a wardrobe, a dressing table, I paid off with the Unemployment Benefits a fridge and a washing machine for us. I also paid off a ute which Tim needed and I also bought kitchen utensils, I bought irons, I bought blankets, I bought pillows and sheets, towels, all types of linen, curtains, I also paid off a tax debt which Tim had and it was more or less anything to do with actual our little house, it was never ever spent on ourselves or to buy food or anything like that, it was always just for the benefit and use of the house."
She also said that the utility was purchased with a loan taken out by her father in his name which she repaid to him. The washing machine and refrigerator were purchased with finance provided by Avco Finance Company and repayments were made by her to that company from the unemployment benefits received. She and the deceased arranged to purchase a block of land at Pelham. This purchase was financed by the Commonwealth Bank of Australia and payments were made in respect of that loan. The first two payments were made by the deceased worker from money which he obtained from selling wood and the last three payments were made from the plaintiff's unemployment benefits. The tax payment that she made on behalf of the deceased worker amounted to $325.
The plaintiff claimed that at the time that the deceased was killed, he had partly completed a course which would qualify him as a tree faller. Upon completion of that course and the grant of a licence, (from whom she did not say) his wages would have increased. She suggested that when this occurred, she would have ceased claiming unemployment benefits. I have a great deal of difficulty in accepting her evidence in this respect. I am not satisfied that this question was ever seriously adverted to by the plaintiff and I tend strongly to the conclusion that had the deceased worker not been killed, the claim for and payment of, unemployment benefits would have continued for a substantial period of time into the future. At all events the plaintiff does not persuade me on the balance of probabilities that this source of income would have ceased soon after the date of the deceased worker's death if he had not been killed as and when he was.
It was submitted by the plaintiff's counsel that it cannot be assumed that these payments of unemployment benefits to which she was not entitled and which ceased soon after she consulted solicitors following the death of the deceased worker, would have continued for any appreciable time into the future. It was submitted that it was likely that the Department of Social Security would have checked on her entitlement to payments and would have discovered that she was not entitled to unemployment benefits and thereupon terminated payments. There is however, no evidence one way or the other, upon which such a conclusion could be reached. I was not told of the frequency with which reviews are conducted of a claimant of this kind, nor was there any foundation laid for the conclusion that such false claims as this are normally detected by such a mechanism.
It was further submitted to me that notwithstanding the plaintiff's receipt of these unemployment funds, and her expenditure of them in the manner described she was still at all relevant times, totally dependent upon the deceased worker. Reliance was placed upon observations made by the High Court in Kauri Timber Co Tasmania Pty LtdvReeman (1972) 128 CLR 177 and Aafjes v Kearney (1975) 8 ALR 455. However, as was stressed in both cases, the question of whether or not one person is dependent upon another is purely a question of fact to be decided having regard to all the circumstances pertaining to the financial and other arrangements existing during the relevant relationship. The facts in both Kauri Timber Co and Aafjes are clearly distinguishable from the present case.
In assessing the plaintiff's dependency upon the deceased worker I have been considerably assisted by the approach adopted by Thomson J in Orr v The Attorney–General [1968] NZLR 1080, especially at pp1082 and 1083. In my opinion, the plaintiff was making regular contributions to household expenditure from the unemployment benefits which she received. I think it would be a mistake to regard this income as hers and hers alone and it would equally be a mistake to regard her as being totally dependent upon the husband simply because a substantial part of the monies which she was receiving were spent upon durable goods whilst the husband was expending the greater part of his income upon consumables. They were effectively pooling their resources and neither had established a personal fund for the purpose of satisfying his or her individual requirements. They were in a sense mutually dependent upon one another, although the deceased worker was clearly providing a much larger proportion of the family income than was the plaintiff. In my opinion, she cannot be said to be wholly dependent upon him.
I find however, that the plaintiff was partially dependent and is therefore entitled to compensation in accordance with Schedule 1, r2, subr(2)(b). This requires me to award such compensation, not exceeding B x 284 ($70,517 at the relevant time) as is reasonable and proportionate to the injury to the plaintiff. It has been conceded that in assessing this sum, I should properly take account of the plaintiff's future prospects including prospects for marriage and employment. There can be no doubt that the plaintiff is an attractive, articulate and intelligent young woman. She is now nearly twenty years of age. I think her prospects for both future employment and marriage are good. I am also required to have regard to past events and the future prospects of the plaintiff and the deceased worker as they appeared at and prior to the date of his death. See Hodges v Scott's Provision Stores Pty Ltd [1964] NSWR 887; Borson v CA Hine & Co Pty Ltd [1965] WAR 19 and Aafjes, per Gibbs J at p461.
Because of the lack of clear evidence as to the constituent elements of the plaintiff's living expenses and requirements either on 28 July 1988 or at the present time, I am unable to embark upon the sort of calculations undertaken by Brettingham–Moore J in Butler v Courthaulds Hilton Ltd (No 28/1985). There are many cases however in which questions of reasonableness and proportion are best approached as a matter of broad, but conservative judgment rather than calculation. I think this is such a case. In my opinion, a proper amount to award the plaintiff would be the sum of $36,000. There will be judgment accordingly.
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