Serdzeff v Victorian WorkCover Authority - [2005] VSCA 320

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3702 of 2005

IRENE SERDZEFF
	Appellant
v.
VICTORIAN WORKCOVER AUTHORITY	Respondent

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JUDGES:	MAXWELL, P., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 October 2005
DATE OF JUDGMENT:	21 December 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 320

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Dependency – Partner’s claim as dependant of deceased worker – Meaning of “dependent partner” in Accident Compensation Act 1985 s.92A(2) – Necessary for court to consider separately requirements of s.82(2) and s.92A(2) of the Act – Claimant’s earnings substantially greater than those of deceased worker – Deceased worker’s earnings very small – Claimant partly dependent on deceased worker’s earnings for purposes of s.82(2) – Claimant wholly dependent on worker’s earnings by application of statutory fiction in s.92A(2) – Trial judge erred in finding no dependency – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M. O’Loghlen, Q.C. With Mr P.A. Rosenberg	Ryan Carlisle Thomas
For the Respondent	Mr J. Ruskin, Q.C. With Mr J.P. Gorton	Mills Oakley

MAXWELL, P.:

I have had the advantage of reading in draft the reasons for judgment prepared by Chernov, J.A. I agree that this appeal should be allowed and orders made as his Honour proposes, for the reasons which his Honour gives.

CHARLES, J.A.:

Having had the advantage of reading the reasons for judgment prepared by Chernov, J.A., I agree that this appeal shall be allowed and orders made as his Honour proposes, for the reasons given.

CHERNOV, J.A.:

The appellant, Irene Serdzeff, appeals pursuant to s.52 of the Accident Compensation Act 1985 (“the Act” or “the 1985 Act”) against the order of a judge of the County Court, made on 17 December 2004, dismissing her claim for compensation under s.92A of the Act arising out of the work-related death of her domestic partner, Steven Underwood (“the deceased”), who died at the age of 47 years on 26 February 2003 as a result of injuries he sustained on 12 April 1999 in the course of his employment. For some time prior to the deceased’s injury he and the appellant lived together in a bona fide domestic relationship and, in October 1998, they became engaged to be married. At the time of injury the couple were not married, but it was common ground that the appellant was then a partner of the deceased within the meaning of the Act (“partner”),[1] that this relationship was extant at the time of his death and that the deceased died as a result of work-related injuries. As will be explained more fully later, the appellant sought compensation under s.92A of the Act on the basis that she was a “dependent partner” of the

deceased at the time of his death. The learned judge concluded, however, that the appellant had failed to establish relevant dependency and, accordingly, dismissed her application for compensation. It is against this decision that the appellant has instituted the appeal.

[1]Section 5 of the Act relevantly defines “partner” of a deceased worker as “the worker’s…

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.

Continue reading Serdzeff v Victorian WorkCover Authority

Details

AGLC: Serdzeff v Victorian WorkCover Authority [2005] VSCA 320
Case: [2005] VSCA 320
Decision Date: 21 December 2005

CaseChat Overview and Summary

Serdzeff v Victorian WorkCover Authority is a decision from the Court of Appeal of the Supreme Court of Victoria, where the dispute centred around the entitlement of a claimant, Serdzeff, to compensation under the Accident Compensation Act 1985 as the dependent partner of a deceased worker. The claimant, Serdzeff, appealed against the trial judge's decision that denied her dependency status, which was a prerequisite for her to claim compensation. The legal issues that the court was required to decide included the interpretation of the terms “dependent partner” under section 82(2) and section 92A(2) of the Act, and the extent to which the claimant was dependent on the deceased worker's earnings.

The court found that the trial judge erred by failing to consider the statutory fiction in section 92A(2) of the Act. This section allows for the application of a presumption of dependency in favour of the claimant when the deceased worker's earnings are very small. The court clarified that the requirements of section 82(2) and section 92A(2) of the Act must be considered separately, and the statutory fiction in section 92A(2) can apply even if the claimant's earnings substantially exceed those of the deceased worker. The court found that the claimant was partly dependent on the deceased worker's earnings for the purposes of section 82(2), but was wholly dependent by the application of the statutory fiction in section 92A(2). The court concluded that the trial judge's finding that there was no dependency was erroneous.

The appeal was allowed, and the matter was remitted back to the trial judge for reconsideration in light of the court's findings. The court emphasised that the statutory fiction in section 92A(2) of the Act is an important safeguard for claimants in circumstances where the deceased worker's earnings are very small. The court's decision highlights the importance of correctly interpreting and applying the provisions of the Accident Compensation Act 1985 when determining claims for compensation.

Orders