Richardson v Turfco Australia Pty Ltd
[2016] NSWWCCPD 43
•6 September 2016
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Richardson v Turfco Australia Pty Ltd [2016] NSWWCCPD 43 | |
| APPELLANT: | Michele Richardson | |
| FIRST RESPONDENT: | Turfco Australia Pty Ltd | |
| SECOND RESPONDENT: | John Rozs | |
| FIRST RESPONDENT INSURER: | Employers Mutual NSW Ltd | |
| FILE NUMBER: | A1-7026/15 | |
| ARBITRATOR: | Ms C McDonald | |
| DATE OF ARBITRATOR’S DECISION: | 28 April 2016 | |
| DATE OF APPEAL DECISION: | 6 September 2016 | |
| SUBJECT MATTER OF DECISION: | Death benefits, s 25 of the Workers Compensation Act 1987; dependency; meaning of “wholly or partly dependent for support” | |
| PRESIDENTIAL MEMBER: | President Judge Keating | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Firths – The Compensation Lawyers |
| First Respondent: | Hicksons Lawyers | |
| Second Respondent: | Rishworth Dodd Solicitors | |
| ORDERS MADE ON APPEAL: | 1. The Senior Arbitrator’s Certificate of Determination of 28 April 2016 is revoked. 2. The matter is remitted to another Arbitrator to determine afresh. | |
INTRODUCTION
This matter concerns a claim in respect of a ‘lump sum death benefit’ pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act). The appellant claims that the Arbitrator erred in not finding that she was dependent upon her deceased son for support at the date of his death, in circumstances where it is not disputed that the deceased died in the course of his employment.
BACKGROUND
On 1 December 2014, in the course of his employment, Blaine Ty Rozs, the deceased, was tragically run over by a tractor causing fatal injuries. The deceased was aged 19.
On 15 December 2015, Ms Richardson, the deceased’s mother, lodged in the Commission an Application in Respect of Death of Worker (the Application). She claimed that she was dependent upon the deceased at the date of his death and therefore claimed lump sum compensation pursuant s 25 of the 1987 Act.
On 23 December 2015, the respondent employer filed a reply advising that its insurer, Employers Mutual Ltd, had conceded liability to make the payment pursuant to s 25. However it contended that the claim for compensation had not “been fully ‘duly made’ until the Commission makes a determination” in respect to whom the lump sum payment ought to be made.
On 27 January 2016, the second respondent, Mr John Rozs, the deceased’s father, filed a miscellaneous application claiming an interest in these proceedings. He contended that Ms Richardson was not a “dependant of the deceased and that the lump sum should be paid to the Estate”. In a Direction issued by the Commission on 28 January 2016, the Application was amended to name Mr Rozs as the second respondent.
The matter proceeded to conciliation and arbitration before Senior Arbitrator McDonald on 10 March 2016. The issue in dispute only concerned whether Ms Richardson was wholly or partially dependent upon the deceased for support at the date of his death, in accordance with s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and therefore entitled to the death benefit payable under s 25.
On 28 April 2016, the Senior Arbitrator delivered her decision and statement of reasons. She found that the appellant was not wholly or partially dependent for support on the deceased. Accordingly, the lump sum benefit was paid to the deceased’s legal personal representative, to be administered on intestacy. The Senior Arbitrator issued a Certificate of Determination in the following terms:
“The Commission determines:
1. There were no persons wholly or partly dependent for support on the deceased worker at the date of his death.
2. Pursuant to ss25 and 32 of the Workers Compensation Act 1987, the First Respondent is to pay the sum of $517,400 to the deceased worker’s legal personal representative.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
Ms Richardson appeals the Senior Arbitrator’s determination.
ON THE PAPERS
Section 354(6) of the 1998 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.”
Having regard to Practice Directions Nos 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.
THRESHOLD MATTERS
Monetary threshold
There is no dispute between the parties that the monetary threshold requirements in s 352(3) of the 1998 Act have been met.
Time
An appeal under s 352 must be made within 28 days of the decision appealed against (s 352(4) of the 1998 Act). An Arbitrator’s decision is made when the Commission issues a Certificate as to the determination of the dispute as required by s 294(1) of the 1998 Act (Pt 16 r 16.2(2) of the Workers Compensation Commission Rules 2011).
The second respondent submits that the appeal appeared to “be outside the prescribed period of 28 days which expired on 19 May 2016”, noting that the Senior Arbitrator’s determination was made on “21 April 2016” and the appeal was filed on 26 May 2016. No further submissions have been developed.
The appellant submits that the appeal was lodged and registered within time, noting that the decision appealed against is dated 28 April 2016 and the appeal was lodged on the 28th day being 26 May 2016.
The first respondent makes no submissions in relation to the appeal and submits to the decision to be reached by the Presidential member.
Contrary to the second respondent’s submissions the decision appealed against was made on 28 April 2016, not 21 April 2016. This is the date the Commission issued the Certificate of Determination and Statement of Reasons to the parties via email. The Certificate of Determination attached to that email was mistakenly dated 21 April 2016. This error was corrected and the Commission advised the parties of the error by email on 3 May 2016. The Commission’s electronic records verify this.
As the time to appeal is calculated from the date the decision is issued, in the present matter that being 28 April 2016, it follows that the last day for lodging the appeal within the 28-day period allowed by s 352(4) was 26 May 2016. Accordingly, the appeal has been filed within time.
EVIDENCE
Ms Richardson
In evidence is a statement of Ms Richardson dated 30 November 2015. She states that the deceased was her third child, of four children. The deceased lived with Ms Richardson and his younger brother, Tom. Ms Richardson had a very close personal relationship with the deceased. There was never a thought that this situation would change.
At the time of the deceased’s death Ms Richardson was a single parent, and had been for several years. She claims that the deceased’s father had been absent from the deceased’s life for 10 years. She added that the father “never freely or willingly paid for the support of his children” and “refuses to pay any child support for [her youngest son] Tom who is now 15 years of age”. In about 2011 she felt the only way she could protect herself and her children from their father, who was allegedly abusive, was “to stop child support” and apply for an Apprehended Domestic Violence Order which she did.
Ms Richardson states that the deceased provided her with significant financial support. She states that she “could not have survived without [the deceased’s] financial contribution to the household”. He paid $70 per week for board which she claimed “covered most of our utilities”. He would also “often buy groceries for the household”. The deceased also gave Ms Richardson “additional money for food on occasions” she needed when she did the grocery shopping or needed to pay unexpected bills or anything else. The deceased would also bring home take-away food such as Chinese food.
Ms Richardson also states that the deceased would give Tom $20 per week in pocket money. He would often take Tom shopping for clothes or anything else that he needed and take him out for lunch.
The deceased shared the use of Ms Richardson’s car. He paid for petrol, registration, and insurance costs.
The deceased also provided Ms Richardson with a significant amount of domestic assistance and personal care. Ms Richardson describes the deceased as the “man of the house”, taking on “a lot of responsibility for undertaking the domestic chores inside and outside” the home. He did the family’s washing and folding of clothes. He took the rubbish bins in and out. He “would do the washing up, vacuum the floor, mow the lawns and doing the edges with a wiper-snipper”. He washed the car. He walked and fed the dog and fed the chickens. Shortly before the deceased’s death, he undertook the “lion-share of major renovations” to the family home. This involved knocking down walls, loading the construction waste into skip bins, and painting. The deceased told Ms Richardson that it was his “mission” to fully renovate the house.
In an Application to Admit Late Documents, lodged in the Commission on 3 March 2016, is a supplementary statement of Ms Richardson, dated 17 February 2016. Attached to that statement is a series of the deceased’s bank statements covering the period 3 April 2013 to 2 January 2015. Ms Richardson refers to those statements and highlights a number of payments made direct to her account in respect of “board” and “some utilities”. She states that if the deceased “was ever to miss payment of board he would then often make it up by buying groceries, giving me cash for bills or bringing home take-away food”. She also refers to a number of transactions made at petrol stations for fuel and the supermarket for groceries.
Ms Richardson adds that at the date of the deceased’s death she was working as a disability support worker, working 20-25 hours per week. This allowed her to pick up and drop off her youngest child from school. Given her limited part-time earnings, she claims that she “was financially dependent upon [the deceased’s] contribution to the household, which was enormous, in order to run our family”.
Ms Richardson also attaches to her statement a number of her bank statements and loan statements covering the period 26 September 2012 to 4 July 2014. She refers to these statements and highlights a number of deposits into those accounts from the deceased’s account.
The funeral notice
In evidence is the deceased’s funeral notice which, amongst other things, records “[b]eloved son of Michele and her partner Neil”. There is no reference to “Neil” in Ms Richardson’s written evidence.
Ms Richardson’s oral evidence
The Senior Arbitrator permitted Ms Richardson to be cross-examined during the arbitration proceedings on 10 March 2016. The cross examination was limited to Ms Richardson’s relationship to a person described as “Neil” in the funeral notice. The relevant evidence from that cross-examination is as follows.
Ms Richardson said (at T4.8) at the time of the deceased’s death she was “seeing Neil” and that it was “a very casual relationship”. Neil did not provide “any financial support” to Ms Richardson or her children. Ms Richardson states (at T4.11): “[Neil] had his own house, his own mortgage, he had three children of his own”. She added that Neil became a great support person for her at the time of the deceased’s death.
Ms Richardson said that (at T5.2) “Neil was present” at the time the funeral notice was written by the funeral director. She added (at T5.21):
“Neil said, ‘Can you just write and Neil at the end?’ And at the time it was a very emotional time and I – out of being polite I just felt I couldn’t write ‘and my boyfriend Neil at the end’ so I chose to put ‘and my partner Neil’ because I felt it reflected that at the time how he was.”
She added in cross-examination by the second respondent’s counsel (at T9.15) that Neil was a great support person and she felt that recording him in the funeral notice “[w]as the polite thing to do for him”. She added “he wasn’t my partner, no, in the sense of living arrangements or anything like that, no, or financial support, no, he wasn’t”.
In response to a question by the appellant’s counsel (at T6.5) whether her finances were mixed at any time in any way with Neil’s finances Ms Richardson responded “Not at all. Never. Never” (T6.7). In response to a further question whether she supported Neil’s household expenses or whether Neil supported her household expenses Ms Richardson responded “Never. Not at all. Never. The relationship ended shortly after [the deceased’s] death” (T6.9). Ms Richardson said her relationship with Neil was “on and off for about a year and a half” (T6.17). She added that they “never lived together, shared accommodation, anything like that” (T6.25).
Mr John Rozs
In evidence is a statement of Mr Rozs dated 1 March 2016. He states that he was not a dependant of the deceased but disputes that Ms Richardson was a dependant of the deceased.
Mr Rozs was severely injured in a motor bike accident in 2005. He states that he was receiving weekly payments of compensation in respect of a workplace injury until about 2013. Attached to his statement are documents to support this information and which detail his modest earnings.
Also attached to his statement is a document from the Australian Government Child Support Agency to Mr Rozs, dated 10 August 2010, recording consistent weekly payments of child support from August 2007 to August 2010. Attached to his statement is also a letter from the Australian Government Child Support Agency to Mr Rozs, dated 29 September 2011, which records that Ms Richardson’s application to stop child support was accepted and that child support payments would cease from 14 September 2011.
Other
In an Application to Admit Late Documents, lodged in the Commission on 3 March 2016, is a statutory declaration of Jessica Rozs, Crystal Rozs and Tom Rozs each dated 24 January 2016 stating that the only person who was dependent upon the deceased was Ms Richardson. Also attached is a statutory declaration of Victoria Akehurst, the deceased’s girlfriend, dated 24 January 2016, stating that she was neither wholly or partly dependent on the deceased for financial support. Neither of the persons making those declarations provided any information concerning the extent of any physical support provided by them or the deceased to Ms Richardson.
In evidence are photographs and two videos of the deceased. The photographs depict the deceased in what appears to be the family home undertaking renovation works. They show the deceased painting and removing walls. The photographs appear to depict the deceased undertaking the renovation work on three occasions. The videos depict the deceased filming the family home which is in the stage of renovation. One video depicts the deceased stating that he will be renovating all weekend.
THE SENIOR ARBITRATOR’S REASONS
The Senior Arbitrator provided a helpful summary of the evidence and the submissions before her. In terms of Ms Richardson’s evidence, she noted an inconsistency between her evidence concerning the extent of child support provided by Mr Rozs and the documents relating to their divorce and from the Child Support Agency. The Senior Arbitrator accepted that Mr Rozs did provide child support including a period in respect of which his only income was from weekly payments of workers compensation. The Senior Arbitrator did not accept Ms Richardson’s explanation for the funeral notice with respect to the deceased’s death which acknowledged the contribution of her partner “Neil”. Ms Richardson’s evidence was that at about the time of the deceased’s death, she was in a casual relationship with Neil who did not live with her or provide financial support. Ms Richardson claimed that the relationship ended after the deceased’s death.
The Senior Arbitrator expressed caution in relation to the acceptance of Ms Richardson’s evidence given that she did not provide copies of any bank statements for the period after mid-2013.
The Senior Arbitrator concluded that as much of Ms Richardson’s evidence was not probative she could only accept her evidence when supported by documentary material.
The Senior Arbitrator analysed the meaning of “dependency” in some detail. The Senior Arbitrator noted the definition of “dependants” in s 4 of the 1998 Act and concluded (at [63]) that the definition makes clear that dependants are “members of the deceased’s family who depended on him for support” (emphasis in original).
The Senior Arbitrator considered the definition of dependant under the Succession Act 2006 and a number of cases in which that term had been discussed. She noted that, unlike the workers compensation legislation, dependency in the context of the Succession Act 2006 is not limited by the words “for support” nor is it limited to dependency as at the date of the deceased’s death.
The Senior Arbitrator considered a number of authorities under the workers compensation legislation on the issue of dependency and concluded that the words, in the definition of dependency, “for support” meant “financial support”. She said (at [72]):
“A consideration of cases on the issue of dependency in the context of workers compensation legislation shows that ‘for support’ means ‘financial support.’ Those cases include Kauri Timber Co (Tas) Pty Ltd v Reeman [1973] HCA 8; (1973) 128 CLR 177 (Reeman), Aafies v Kearney (1975) 180 CLR 199, TNT Group 4 Pty Limited v Halioris (1987) 8 NSWLR 486, McCafferty’s Management Pty Limited v Pimlott (1995) 12 NSWCCR 360.”
The Senior Arbitrator rejected the submission that the provision of “succour” or practical physical support is sufficient on its own to create dependency for support (at [74]).
The Senior Arbitrator considered, but rejected, the submission that the terms of the Superannuation Industry (Supervision) Act 1993 (Cth) or the regulations to the legislation provided any practical assistance to the issues before her (at [76]–[77]). The entitlement to benefits under the superannuation legislation was subject to the establishment of “an interdependency relationship”, which is a different concept to ‘dependent for support’. Moreover there was no evidence about what the trustee of the fund was told and what information was relied upon to determine the interdependency relationship in the circumstances of this case.
In terms of assessing the extent of the financial dependency, the Senior Arbitrator noted at the outset that the documentary evidence submitted by Ms Richardson left several matters unexplained. Her statements were silent on the impact of various government benefits she received, but her bank statements demonstrate that towards the middle of 2013 those payments were reasonably substantial.
In her first statement Ms Richardson said that the deceased’s contribution of $70 per week covered most of the family utilities, whilst in her second statement she stated that the contribution covered “some” of the bills for utilities. There was no evidence of what sums were spent on utilities or other outgoings.
The documentary evidence did not support the claim that the deceased paid for registration and insurance of Ms Richardson’s car. The Senior Arbitrator accepted that there were some payments in respect of the car but could not determine if the payments exceeded the deceased’s own use of the vehicle.
Ms Richardson’s accounts show that she spent substantial sums of money at supermarkets, suggesting that she purchased the groceries for the household.
Ms Richardson did not say that the board paid by the deceased reimbursed her for the cost of his accommodation and keep. The Senior Arbitrator concluded that $70 per week would not have done so. Sums spent at fast food outlets and other locations such as hotels did not support the contention that the deceased expended those sums other than for his own meals and entertainment.
The Senior Arbitrator ultimately concluded (at [90]) that the evidence did not show that the amount paid to Ms Richardson by the deceased exceeded the cost of his own upkeep.
The Senior Arbitrator examined a number of authorities dealing with the question of the impact of the payment of board and dependency including Warilla Timber and Hardware Pty Ltd v Newton (1995) 11 NSWCCR 546 (Newton), McDowell v The Perpetual Trustee Co Ltd (1938) WCR 261 and Marov v Lagoon Smash Repairs Pty Ltd (1994) NSWCCR 306. In broad terms, those cases involved the payment by the worker of board in varying amounts similar to that paid by the deceased.
The Senior Arbitrator concluded that Ms Richardson had not sought to estimate the family’s outgoings, nor placed a value on the assistance given by the deceased around the home ([101]). She added that Ms Richardson’s evidence that the deceased provided assistance in a variety of household tasks did not go beyond establishing that the duties he performed were in the normal “ebb and flow of family life” ([101]).
The Senior Arbitrator concluded (at [102]) that there was no evidence that the performance of any of those tasks avoided the need for Ms Richardson to incur expense on items such as car or garden maintenance or that she is now incurring expense for those tasks to be undertaken.
The Senior Arbitrator accepted that there was one possible exception and that concerned the work that the deceased undertook on Ms Richardson’s home, but again concluded that the evidence was insufficient to allow her to draw any conclusions about the nature of such work ([103]). There was no evidence as to the nature of the renovations that were undertaken or how much of the renovation work was undertaken by licensed tradesmen even though it would have been a simple matter to provide that evidence ([104]).
The Senior Arbitrator ultimately concluded (at [105]) that she was not satisfied that Ms Richardson was partially dependent upon the deceased for support at the date of his death. There was no evidence that any other person was wholly or partially dependent. Consequently she ordered that, pursuant to ss 25 and 32 of the 1987 Act, the first respondent pay the sum of $517,400 to the deceased’s legal personal representative.
GROUNDS OF APPEAL
The appellant alleges that the Senior Arbitrator erred:
(a) by reading a gloss into the definition of “dependants” defined in s 4 of the 1998 Act and holding that dependant means only a person who receives “financial support” from the deceased;
(b) in failing to construe the legislation by giving it a beneficial interpretation as required for remedial legislation;
(c) in failing to find that practical physical support provided by the deceased “represents or may be described as ‘financial support’”;
(d) in failing to give any or any adequate weight to the evidence, and
(e) in rejecting the appellant’s evidence of support by the deceased to the appellant demonstrated by:
(i)an alleged failure to produce bank statements corroborating her evidence when such evidence was not challenged by cross-examination or otherwise;
(ii)finding there was no evidence as to the nature of renovations undertaken, and
(iii)taking into account an irrelevant consideration, namely the extent to which renovations were undertaken by licensed tradesmen.
LEGISLATION
Dependant is defined in s 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) a divorced spouse of the worker so dependent, and
(c) a person so dependent who:
(i) in relation to an injury received before the commencement of Schedule 7 to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 -although not legally married to the worker, lived with the worker as the worker’s husband or wife on a permanent and genuine domestic basis, or
(ii) in relation to an injury received after that commencement-is the de facto partner of the worker.
Note : ‘De facto partner’ is defined in section 21C of the Interpretation Act1987 .”
Section 25 of the 1987 Act provides:
“25 Death of worker leaving dependants
(cf former s 8 (1))
(1) If death results from an injury, the amount of compensation payable by the employer under this Act shall be:
(a) the amount of $750,000 (the ‘lump sum death benefit’), which is to be apportioned among any dependants who are wholly or partly dependent for support on the worker or (if there are no such dependants) paid to the worker’s legal personal representative, and
(b) …”
It is common ground that at the time of the deceased’s death the lump sum payable pursuant to s 25 is $517,400.
SUBMISSIONS
The meaning of dependency (ground (a))
The appellant’s submissions
The appellant submits that the Senior Arbitrator erred by concluding (at [72]) that upon consideration of the authorities to which she referred, dependency in the context of the workers compensation legislation “shows that ‘for support’ means ‘financial support’”.
It is submitted that the cases upon which the Senior Arbitrator relied to form that conclusion “do not reflect the current form of the legislation”. The cases to which the Senior Arbitrator referred included Kauri Timber Co (Tas) Pty Ltd v Reeman [1973] HCA 8; 128 CLR 177, Aafjes v Kearney [1976] HCA 5; (1994) 180 CLR 199, TNT Group 4 Pty Ltd v Halioris (1987) 8 NSWLR 486 and McCafferty’s Management Pty Ltd v Pimlott (1995) 12 NSWCCR 360.
It is submitted that the Senior Arbitrator placed a “gloss” upon the statutory language to be applied and thereby erred: Uelese v Minister for Immigration and Border Protection [2015] HCA 15 at [47]–[52]; Fish v Solution 6 Holdings Ltd [2006] HCA 22 at [28] and [107]–[110]; Griffith University v Tang [2005] HCA 7 at [104] and [152]; Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Ltd [2009] HCA 19 at [49]; Boughey v R [1986] HCA 29 at [5]; Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd [1968] HCA 60 at [4]; International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49 at [42].
The appellant’s counsel Mr Goodridge further submits:
“Read without a gloss, the term dependant ought to be given its ordinary meaning. The ordinary meaning of ‘dependant’ has received extensive consideration in NSW in cases under the Succession Act 2006 where the term dependant is an important but undefined term.”
Mr Goodridge then referred to a series of cases including Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 (Sadiq), Skinner v Frappell [2008] NSWCA 296 (Skinner), Petrohilos v Hunter (1991) 25 NSWLR 343 (Petrohilos) and Williams v Legg (1993) 29 NSWLR 687 (Williams).
Somewhat unhelpfully, Mr Goodridge neglected to develop the submission in terms of identifying what it was that he contended was the ordinary meaning of the word “dependant”. I infer from the passages to which he referred that he relies on the following general statements of principle:
(a) dependency is not limited to the class of persons actually in receipt of financial assistance (Sadiq);
(b) dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased (Amaca Pty Ltd v Novek [2009] NSWCA 50);
(c) although dependency is not limited to financial dependency, it does involve one person being beholden to another for some material or physical help or succour, emotional dependency is not enough (Skinner);
(d) “dependent” in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed (Petrohilos);
(e) a mother’s services to a young child may satisfy the test of dependency. To suggest that, in a money sense they are valueless, is simply wrong (Petrohilos);
(f) while one of the commonest forms of dependence might be financial dependence, the word used in the statute (which I infer is the Conveyancing Act 1919) is not limited to financial dependence (Williams), and
(g) the word “partly” in the phrase “partly dependent”, whilst a word of “some elasticity”, does not mean “substantially”, but means “more than minimally”, or perhaps, “significantly” (Bremner v Graham [2016] NSWSC 633 at [34] citing Priestley JA at [4] (with whom Hope AJA agreed) in McKenzie v Baddeley [1991] NSWCA 197) (McKenzie)). Meagher JA, in McKenzie at [6], commented that “[c]ommon sense requires that certain trivial activities should be disregarded”.
Ultimately Mr Goodridge concluded that, read without the alleged “gloss”, the findings by the Senior Arbitrator are sufficient to find partial dependency of the appellant upon the deceased.
The second respondent’s submissions
The second respondent, Mr Rozs, submits that the Senior Arbitrator did not reject physical support as a source of dependency. The Senior Arbitrator said (at [74]):
“I do not accept that the provision of ‘succour’ or practical physical support is sufficient on its own to create dependency for support.” (emphasis added)
Read in context, Mr Rozs submits that the Senior Arbitrator’s most basic starting point of a dependency claim is that someone has a need to rely upon someone else for assistance. The mere fact that a child may perform physical services around the family home as part of everyday normal life does not, as the Senior Arbitrator correctly observed, necessarily bespeak of dependency. Further it is submitted that other family members may be quite capable of providing these services either themselves or in another way. To assert that something was done for the family does not prove that it “needed to be done”. The dependency must also be established as at the date of death.
Consideration
I accept Mr Goodridge’s submissions for the reasons that follow.
Prior to an amendment to the Workers Compensation Act 1926 in 1964, compensation to the dependants of deceased workers was intended to compensate for the money loss resulting from the loss of the worker's earning power: New Monckton Collieries Ltd v Keeling [1911] AC 648; Hall v Metropolitan Water, Sewerage and Drainage Board (1926–27) WCR 146. However, the broadening of the concept in 1964 to one of dependence on the worker for support has had the effect of extending the range of matters in respect of which dependants are entitled to be compensated.
In Cooper v Commissioner for Railways (1972) WCR 47 (Cooper) Ferrari J discussed the entitlement of dependants in New South Wales to compensation benefits in the case of the death of a worker in the context of the amendments in 1964. He noted that those benefits were founded upon proof of dependency for support whereas prior to the amendment the former Act required proof of dependency upon the earnings of the worker. His Honour said (at 48–49):
“It appears to me that the effect of the substitution of dependency for support in place of dependent upon earnings is to extend the right to compensation so as to encompass dependants of the deceased who drew their support from him but out of sources other than his earnings.”
In Warilla Timber and Hardware Pty Ltd v Newton (1995) 11 NSWCCR 546 (Newton), Kirby A-CJ (as he then was) considered that s 26 of the 1987 Act, which is relevantly in the same terms as the current s 25 except for the addition of the words “or partly dependent” in the current form of the provision, introduced the concept of “support” which is now the criterion for dependency and not the narrower concept of “earnings”. His Honour said (at 554–555):
“I would therefore be content, for the moment, to assume that that wider criterion is to be taken into account in calculating the reasonable and proportionate injury to the dependants. But so did Maguire CCJ when he arrived at the net loss of $90 per week. As his Honour’s reasons show, that sum incorporated a provision for the amounts which were to be attributed to the worker’s activities around the house. His death deprived his mother of that form of ‘support’ although it was not part of his earnings with the appellant.
Therefore, it can be assumed that the argument is good.”
Acting Deputy President Roche, as he then was, considered the question of dependency under s 26 of the 1987 Act in Albury Real Estate Pty Ltd v Rouseand anor [2006] NSWWCCPD 139 (Rouse). He found that dependency could be established, among other things, from evidence that the deceased had routinely performed “a fair bit of work around the farm feeding stock etc and general maintenance” ([45], [50]). As a result of her husband’s death, the applicant, Mrs Rouse, was then required to pay $15 per hour for half a day a week for someone to cut wood on the farm. In addition she had to pay for general maintenance work that was previously performed by her husband. The Acting Deputy President concluded that although there was no precise calculation of the total value of the “support” provided by the deceased, it was clear from the evidence that the support provided by the deceased was significant ([47]). He concluded that the Senior Arbitrator’s finding that Mrs Rouse was partially dependent for support upon her husband as at the date of death was the correct finding ([48]). Relevantly, the Acting Deputy President noted (at [49]):
“The test is not whether the person is ‘financially dependent’ on the deceased but whether he or she is dependent for ‘support’ (Newton).”
In Abraham Seda Ghati v Sayan [2010] NSWWCCPD 74 (Ghati) O’Grady DP, referring to Ferrari J’s comments in Cooper, held (at [79]):
“I am of the view that it is appropriate in this matter, when considering the existence or otherwise of dependency and whether such is total (whole) or partial, that account should be taken of that evidence concerning the performance by the deceased of sundry services about the home …”
A careful reading of the authorities upon which the Senior Arbitrator relied (referred to at [42] above) to support the finding that the words “for support” in s 26 means “financial support”, do not in fact support that finding. Furthermore the finding is contrary to accepted authority as discussed above.
Further, I do not accept that the Senior Arbitrator’s statement (at [74] of the reasons and [67] above) that the provision of “succour” or practical physical support is sufficient on its own to create dependency for support is an accurate statement of principle.
Whether other family members are capable of providing the practical physical support provided by the deceased is irrelevant. Nor does a dependant have to prove, as Mr Rozs submits, that the practical physical support was provided out of need for such support. The question is whether any person was wholly or partly dependent for support on the worker as at the date of death.
The Senior Arbitrator stated that assistance around the home in a family relationship can create a financial dependency where it obviates the need for dependants to expend money on the provision of those services. However, again the Senior Arbitrator focused on the need to establish a financial dependency which is not in accordance with the language of s 25 and is, as I have indicated, contrary to accepted authority: Newton, Rouse and Ghati.
It follows that the Senior Arbitrator proceeded on the basis of an incorrect statement of legal principle which constituted an error in point of law. Therefore, ground (a) is upheld.
That does not necessarily mean that the appeal must succeed. The critical question is whether the error infected the Senior Arbitrator’s ultimate conclusions, that is, whether they were operative errors in the sense discussed by Basten JA in Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339 (at [17] and [20]) (Akora) and Bathurst CJ in Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45 (at [92]). It is therefore necessary to consider the remaining grounds of appeal.
Interpretation of remedial legislation (ground (b))
Having regard to my findings concerning the meaning of dependent, upholding Mr Goodridge’s submissions, it is unnecessary to deal with the beneficial construction submission (ground (b)).
Was dependency established by the provision of practical physical support? (ground (c))/ weight of evidence (grounds (d) and (e))
Submissions
Mr Goodridge submits that the Senior Arbitrator, having found that the deceased provided Ms Richardson with practical physical support, erred in failing to find that such support may be described as financial support or a financial benefit to Ms Richardson.
Mr Goodridge further submits that there was no requirement to prove the quantum of the value of such services. It can be left to common experience and broad experience to find that such support has a value: Newton. He submits that the work such as the renovation and lawn mowing has value.
Mr Rozs submits that the fact that the deceased may have performed some renovation work on the home on one or perhaps more than one occasion does not prove dependency. He submits that there was no attempt to give specifics with respect to the renovation work and no evidence as to whether the project could have been competed in the absence of the deceased’s services.
Mr Rozs further submits that the Senior Arbitrator’s finding with respect to the renovation work in essence was that “the absence of evidence made it impossible to know whether or not the necessary additional elements of need by the person said to be the dependent are present”. He submits that the assertions with respect to the home renovations were vague, generalised and not put in any context, temporal or otherwise.
Ultimately it is submitted by Mr Rozs that the Senior Arbitrator’s decision turned on the credit of Ms Richardson which was not accepted. Put simply she failed to prove her case. Mr Rozs submits that that was a finding which was open on the facts and indeed was probably inevitable given the way in which her case was put.
Consideration
I accept Mr Goodridge’s submission on these grounds.
The evidence presented to the Senior Arbitrator on this question was poorly presented. Some attempt should have been made by the appellant and her legal representatives to detail and quantify the extent of the practical physical support provided by the deceased to Ms Richardson. However, I am satisfied that for the following reasons, the evidence that was before the Senior Arbitrator, properly considered, was potentially capable of supporting a finding of dependency.
With respect to the renovation work, the Senior Arbitrator concluded that the deceased assisted with some of the work which was undertaken but found that she was unable to draw the conclusion that it had been beyond some demolition and painting.
On the evidence presented, it was open to conclude that the deceased’s contribution to the renovation work was substantial. It is reasonable to infer from the photographs tendered, although they are undated, that the deceased was photographed on at least three occasions undertaking the removal of plaster, demolishing walls and painting ceilings. So much can be gleaned from different clothing being worn by the deceased on those occasions and the activities depicted.
Moreover, the deceased is heard to say in the video (exhibit D) that he would be spending the entire weekend undertaking the renovation work. It follows that Ms Richardson’s evidence that the deceased undertook the “lion’s share of the major renovation” is corroborated by the photographic and video evidence. The unchallenged evidence is that the deceased intended to make it his “mission” to fully renovate the house.
Mr Graham, who appeared for Mr Rozs at the arbitration hearing, submitted (at T26.17) to the Senior Arbitrator that with respect to the physical and domestic support provided:
“That does not demonstrate providing additional assistance that was needed by [Ms Richardson], it simply demonstrates board and sure he did things around the house, but that’s part of, what the courts have often said, the give and take of family life. He was doing some work because he was living there and it was his home.”
It would appear that the Senior Arbitrator accepted that submission. She concluded (at [101]):
“It is to be expected that any member of the household would assist with washing up or folding clothes and the performance of those tasks does not create dependency.”
I have not been directed to, nor have I discovered, any authority for the proposition that practical physical support should be discounted on the basis that it forms part of the “give and take of family life”. That expression has been used in the context of determining the quantum of gratuitous domestic assistance in common law damages actions: Matchan v Lyons [2003] NSWCA 384 (at [4]–[5]) and Roads and Traffic Authority v McGregor [2005] NSWCA 388 (at [160]). However, I do not accept that the support provided by the deceased to the appellant should be discounted unless it could be shown to be trivial in nature: McKenzie.
Mr Goodridge submitted that the Senior Arbitrator overlooked or gave no weight to or failed to give adequate weight to the support given by the deceased as follows:
(a) buying groceries for the household;
(b) providing additional moneys from time to time in addition to the regular $70 board;
(c) occasionally buying takeaway food;
(d) providing pocket money to his younger brother Tom and buying him clothing and other items;
(e) purchasing of petrol;
(f) paying registration and insurance costs;
(g) taking out rubbish bins;
(h) washing up, vacuuming the floor, mowing lawns and cutting edges;
(i) car washing;
(j) feeding the dog and chickens;
(k) contributing to the home renovations;
(l) attending to his mother’s needs when she was ill, driving her to doctors’ appointments;
(m) obtaining and administering medication when needed;
(n) cooking for his younger brother Tom on occasions and driving him to various locations when his mother was ill, and
(o) doing all of the maintenance necessary for the upkeep of the house.
Many of the activities identified above lend significant support to Ms Richardson’s claim of dependency and were either not addressed or given little or no weight. That was also an error.
Further, the Senior Arbitrator held that there was no evidence that the performance of any of the tasks avoided the need for Ms Richardson to incur expenses on items such as car or garden maintenance or that she is now incurring costs for those tasks. Whilst such evidence would undoubtedly have assisted the Senior Arbitrator’s task, its absence was not fatal to her application: Rouse.
Mr Rozs submits that the appellant has failed to address the adverse credit finding in the absence of corroborative evidence. As I have indicated there is corroborative evidence at least with respect to the deceased’s contribution to the renovations. Although the Senior Arbitrator did not accept Ms Richardson’s evidence concerning the role of the person known as “Neil” it does not follow that because she was not accepted on that particular matter that she ought to be disbelieved on all matters: SAS Realty Developments Pty Ltd v Kerr[2013] NSWCA 56 at [115].
CONCLUSION
The Senior Arbitrator was required to determine the Application before her applying the statutory language of s 25, namely to determine whether Ms Richardson was wholly or partly dependent for support upon the deceased worker. The Senior Arbitrator conflated support with financial support which led her into error. Even though the evidence presented before the Senior Arbitrator was sparse and incomplete, properly considered there was sufficient evidence before the Senior Arbitrator to potentially support a finding of dependency.
I am satisfied that the errors identified so infected the Senior Arbitrator’s ultimate conclusions that her determination of 28 April 2016 must be revoked and the matter re-determined by another Arbitrator (Akora).
Given the somewhat unsatisfactory nature of the evidence, and the fact that there are credit issues involved, it is not appropriate for me to attempt to re-determine the application.
In the circumstances, the Senior Arbitrator’s determination of 28 April 2016 is revoked and the matter is remitted to another Arbitrator to determine afresh.
ORDERS
The Senior Arbitrator’s Certificate of Determination of 28 April 2016 is revoked.
The matter is remitted to another Arbitrator to determine afresh.
Judge Keating
President
6 September 2016
13
24
0