So v So

Case [2004] NSWCA 67
CITATION: So v So [2004] NSWCA 67
HEARING DATE(S): 2 February 2004
JUDGMENT DATE:
12 March 2004
JUDGMENT OF: Meagher JA at 1; Santow JA at 2; McColl JA at 35
DECISION: (1) Appeal allowed with costs in favour of the appellant; (2) That an award be made in favour of the appellant in the sum of $253,651 pursuant to s25(1)(a) of the Workers Compensation Act 1987 and weekly payments at the rate of $80.60 pursuant to s25(1)(b) of that Act from 20 July 2000 for such period as the appellant was a student until the appellant reached the age of 21 years, and that such award be substituted for the award of His Honour Judge Bourke made on 19 December 2002.
CATCHWORDS: WORDS and PHRASES - meaning of a dependant being "wholly dependent for support" on her mother in terms of s25 of Workers Compensation Act 1987 - history and UK antecedent of legislation - can be wholly dependent on both mother and father notwithstanding greater financial contribution by father - test to be applied based on dependence on the equal and co-ordinate obligation of both parents being discharged - relationship with s26 of Workers Compensation Act 1987. - PRACTICE and PROCEDURE - error of law for purpose of s32 of Compensation Court Act 1984.
LEGISLATION CITED: Compensation Court Act 1984 (NSW) s32
Workers Compensation Act 1926 s8(2)
Workers Compensation Act 1987 s25; s26; ss79 to 82
CASES CITED: Aafjes v Kearney (1976) 180 CLR 199
Ambulance Service of New South Wales v Daniel (2000) 19 NSWCCR 697
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bruest v Commissioner for Railways [1957] 31 WCR 131
Hodges v Scotts Provision Stores Pty Limited (1964) NSWR 887
Holdlen Pty Ltd v Walsh (2000) 19 NSWCCR 629
Hope v the Council of the City of Bathurst (1980) 144 CLR 1
Jeffrey v Commissioner for Government Transport [1957] SR(NSW) 634
Khan v Terry Shields Toyota Pty Ltd (1990) 6 NSWCCR 233
McCafferty's Management Pty Ltd v Pimlott (1995) 12 NSWCCR 360
Potts v Niddrie & Benhar Coal Co Ltd [1913] A.C. 531
Warilla Timber & Hardware Pty Ltd v Newton (1995) 11 NSWCCR 546

PARTIES :

 Marianna SO (Appellant)
Peter SO (Respondent)
FILE NUMBER(S): CA 40014/03
COUNSEL: G Little, SC/ M Crimmins (Appellant)
P Maiden, SC (Respondent)
SOLICITORS: Flynn Conn (Appellant)
Timothy J Doubleday (Respondent)
LOWER COURTJURISDICTION: Compensation Court
LOWER COURT FILE NUMBER(S): CC 47078/01
LOWER COURT
JUDICIAL OFFICER : 		Burke AJ


                          CA 40014/03

                          MEAGHER JA
                          SANTOW JA
                          McCOLL JA

                          12 MARCH 2004
Marianna SO v Peter SO
Judgment

1 MEAGHER JA: I agree with Santow JA.

2 SANTOW JA:

      INTRODUCTION and OVERVIEW
      The principal issue in this case can be simply stated. Did the trial judge err in law in concluding that the appellant was not, in terms of s25 of the Workers Compensation Act 1987 (“the Act”), a dependant “ wholly dependant for support ” on her mother, who died from an injury in course of her employment…

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AGLC
So v So [2004] NSWCA 67
Case
[2004] NSWCA 67
Decision Date

CaseChat Overview and Summary

The appeal in *So v So* concerned the interpretation of "wholly dependent for support" under section 25 of the *Workers Compensation Act 1987* (NSW). The appellant, a child, sought compensation following the death of her mother, arguing she was wholly dependent on her mother for support. The primary judge had found that while the mother made some financial contribution, the child was primarily dependent on her father, and therefore not wholly dependent on her mother for the purposes of the Act.

The central legal issue before the Court of Appeal was whether a dependant could be considered "wholly dependent" on one parent for the purposes of section 25 of the *Workers Compensation Act 1987*, even if another parent also contributed financially to their support. This required the court to consider the legislative history of the provision, including its United Kingdom antecedent, and its relationship with section 26 of the same Act. The court also had to determine if the primary judge's finding constituted an error of law for the purposes of section 32 of the *Compensation Court Act 1984* (NSW).

The Court of Appeal held that a dependant could be wholly dependent on both parents, notwithstanding a greater financial contribution from one parent. The test to be applied was whether the dependant relied on the equal and co-ordinate obligation of both parents being discharged. The court found that the primary judge had erred in law by applying an incorrect test, failing to consider the possibility of a child being wholly dependent on both parents. Consequently, the appeal was allowed, and an award was made in favour of the appellant.

Orders

Orders of the court

(1) Appeal allowed with costs in favour of the appellant; (2) That an award be made in favour of the appellant in the sum of $253,651 pursuant to s25(1)(a) of the Workers Compensation Act 1987 and weekly payments at the rate of $80.60 pursuant to s25(1)(b) of that Act from 20 July 2000 for such period as the appellant was a student until the appellant reached the age of 21 years, and that such award be substituted for the award of His Honour Judge Bourke made on 19 December 2002.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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