Kuenzel v Workers Compensation (Dust Diseases) Board of New South Wales - [2012] NSWDC 243

District Court

New South Wales

Medium Neutral Citation: Kuenzel v Workers Compensation (Dust Diseases) Board of New South Wales [2012] NSWDC 243
Hearing dates: 13 and 14 August 2012
Decision date: 26 October 2012
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Set aside the determination of the Workers' Compensation (Dust Diseases) Board of New South Wales dated on or about 24 August 2011.
(2) A finding that the first plaintiff was dependent for support upon the deceased immediately before his death pursuant to section 8(1) of the Act.
(3) A finding that the second plaintiff was dependent for support upon the deceased immediately before his death pursuant to section 8(1) of the Act.
(4) A finding that the first plaintiff is entitled to compensation from the defendant in accordance with section 8(2) of the Act.
(5) A finding that the second plaintiff is entitled to compensation in accordance with section 8(2) of the Act or in the alternative in accordance with section 8(2B) of the Act.
(6) Liberty to apply.
(7) Exhibits retained for 28 days.

Catchwords: WORKERS' COMPENSATION - prior to diagnosis of dust disease disability, worker purchased a home jointly with his daughter and her husband - whether daughter and her infant son "dependent for support" on the worker - turns on own facts
Legislation Cited: Workers Compensation Act 1987 (NSW), s 2A
Workers' Compensation (Dust Diseases) Act 1942 (NSW), ss 1, 3, 8 and 8I
Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 3
Cases Cited: Amaca Pty Ltd v Novek [2009] NSWCA 50
Ball v Newey (1988) 13 NSWLR 489
Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187
Middleton v Kiama District Hospital [1970] 3 NSWR 136
Petrohilos v Hunter (1991) 25 NSWLR 343
So v So [2004] NSWCA 67
TNT Group 4 Pty Limited v Halioris & Anor (1987) 8 NSWLR 486
Warilla Timber & Hardware Pty Ltd v Newton (1995) 11 NSWCCR 546
Workers' Compensation (Dust Diseases) Board v Veksans (1993) 32 NSWLR 221
Texts Cited: -
Category: Principal judgment
Parties: First Plaintiff: Rhonda Kuenzel
Second Plaintiff: Cristian Kuenzel by his tutor Rhonda Kuenzel
Defendant: The Workers' Compensation (Dust Diseases) Board of New South Wales
Representation: Plaintiffs: Mr S Tzouganatos
Defendant: Mr J Sheller / Mr T Holmes
Plaintiff: Turner Freeman Lawyers
Defendant: WorkCover Authority of NSW Legal Group

File Number(s): RJ00268/12
Publication restriction: None

Judgment

The plaintiffs by statement of claim filed on 15 May 2012 appeals against a determination of The Workers' Compensation (Dust Diseases) Board of New South Wales (in letters dated 24 August and 24 November 2011) for refusing their application for compensation as dependents of the late Dusan Pauchlik (the deceased). This appeal was brought pursuant to s 8I Workers' Compensation (Dust Diseases) Act 1942 (NSW) ("the Act").

The plaintiffs, Rhonda Kuenzel and her infant son Cristian Kuenzel (hereafter referred to as "the first plaintiff" and "the second plaintiff" respectively), are the daughter and grandson of the deceased, who was diagnosed with malignant pleural mesothelioma in…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: Kuenzel v Workers Compensation (Dust Diseases) Board of New South Wales [2012] NSWDC 243
Case: [2012] NSWDC 243
Decision Date: 26 October 2012

CaseChat Overview and Summary

In the case of Kuenzel v Workers Compensation (Dust Diseases) Board of New South Wales, the deceased worker, prior to his diagnosis with a dust disease, had purchased a home jointly with his daughter and her husband. Following his death, his daughter and her infant son sought workers' compensation benefits from the Workers Compensation (Dust Diseases) Board of New South Wales, which was ultimately denied. The daughter and infant son appealed the decision to the court. The primary legal issues before the court were whether the daughter and her infant son were considered "dependents for support" on the deceased worker immediately before his death, and if so, whether they were entitled to compensation under the relevant statutes.

The court examined the definition of "dependent for support" as outlined in the relevant legislation. It was necessary to determine if the daughter and her son met the criteria for dependency, which included financial dependence on the deceased worker. The court considered evidence regarding the financial relationship between the deceased worker, his daughter, and her husband, as well as the living arrangements and the dependency of the infant son. The court held that the daughter and her infant son were indeed dependent on the deceased worker for support immediately before his death, satisfying the requirements of the statute.

As a result of the court's findings, the determination of the Workers Compensation (Dust Diseases) Board of New South Wales was set aside. The court made several findings in favour of the daughter and the infant son, confirming their status as dependents for support under the Act. Consequently, the court ordered that the daughter and the infant son were entitled to compensation from the defendant, either under the primary provision of section 8(2) or alternatively under section 8(2B) of the Act. The court granted liberty to apply and retained the exhibits for 28 days.

Orders

Orders of the court

(1) Set aside the determination of the Workers' Compensation (Dust Diseases) Board of New South Wales dated on or about 24 August 2011.

(2) A finding that the first plaintiff was dependent for support upon the deceased immediately before his death pursuant to section 8(1) of the Act.

(3) A finding that the second plaintiff was dependent for support upon the deceased immediately before his death pursuant to section 8(1) of the Act.

(4) A finding that the first plaintiff is entitled to compensation from the defendant in accordance with section 8(2) of the Act.

(5) A finding that the second plaintiff is entitled to compensation in accordance with section 8(2) of the Act or in the alternative in accordance with section 8(2B) of the Act.

(6) Liberty to apply.

(7) Exhibits retained for 28 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Kuenzel v Workers Compensation (Dust Diseases) Board of New South Wales [2012] NSWDC 243
Hearing dates:	13 and 14 August 2012
Decision date:	26 October 2012
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Set aside the determination of the Workers' Compensation (Dust Diseases) Board of New South Wales dated on or about 24 August 2011. (2) A finding that the first plaintiff was dependent for support upon the deceased immediately before his death pursuant to section 8(1) of the Act. (3) A finding that the second plaintiff was dependent for support upon the deceased immediately before his death pursuant to section 8(1) of the Act. (4) A finding that the first plaintiff is entitled to compensation from the defendant in accordance with section 8(2) of the Act. (5) A finding that the second plaintiff is entitled to compensation in accordance with section 8(2) of the Act or in the alternative in accordance with section 8(2B) of the Act. (6) Liberty to apply. (7) Exhibits retained for 28 days.
Catchwords:	WORKERS' COMPENSATION - prior to diagnosis of dust disease disability, worker purchased a home jointly with his daughter and her husband - whether daughter and her infant son "dependent for support" on the worker - turns on own facts
Legislation Cited:	Workers Compensation Act 1987 (NSW), s 2A Workers' Compensation (Dust Diseases) Act 1942 (NSW), ss 1, 3, 8 and 8I Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 3
Cases Cited:	Amaca Pty Ltd v Novek [2009] NSWCA 50 Ball v Newey (1988) 13 NSWLR 489 Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187 Middleton v Kiama District Hospital [1970] 3 NSWR 136 Petrohilos v Hunter (1991) 25 NSWLR 343 So v So [2004] NSWCA 67 TNT Group 4 Pty Limited v Halioris & Anor (1987) 8 NSWLR 486 Warilla Timber & Hardware Pty Ltd v Newton (1995) 11 NSWCCR 546 Workers' Compensation (Dust Diseases) Board v Veksans (1993) 32 NSWLR 221
Texts Cited:	-
Category:	Principal judgment
Parties:	First Plaintiff: Rhonda Kuenzel Second Plaintiff: Cristian Kuenzel by his tutor Rhonda Kuenzel Defendant: The Workers' Compensation (Dust Diseases) Board of New South Wales
Representation:	Plaintiffs: Mr S Tzouganatos Defendant: Mr J Sheller / Mr T Holmes Plaintiff: Turner Freeman Lawyers Defendant: WorkCover Authority of NSW Legal Group
File Number(s):	RJ00268/12
Publication restriction:	None