Teena Cook and Thales Australia Limited
[2012] AATA 222
•17 April 2012
[2012] AATA 222
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2010/5091
Re
Teena Cook
APPLICANT
And
Thales Australia Limited
RESPONDENT
And Haydn Cook represented by Kathleen Ward
JOINED PARTY
DECISION
Tribunal Deputy President J W Constance Date 17 April 2012 Place Melbourne 1.The reviewable decision made by the respondent Thales Australia Limited on 20 September 2010 is set aside.
2.In substitution for the decision set aside, it is decided that Thales Australia Limited shall pay the total amount of compensation payable under subsection 17(3) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) to the applicant Ms Cook.
3.Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made the respondent shall pay the costs of the proceedings incurred by the applicant.
...[sgd J W Constance]....................
Deputy President J W Constance
CATCHWORDS
COMPENSATION – interpretation of subsection 17(3) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether the son of the deceased employee was wholly or partly dependent upon his father at the time of his death – whether the deceased's son is entitled to compensation payable by the company under subsection 17(3) – partly dependent son not entitled to share in compensation payable under subsection 17(3) – decision under review set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 4(4), 4(5), 17(3), 17(4), 17(5) and 17(8)
Family Law Act 1975 (Cth) s 66C
Compensation (Commonwealth Government Employees) Act 1971 s 43(3)
CASES
Aafjes v Kearney (1994) 180 CLR 199
Click here to enter text.
REASONS FOR DECISION
Tribunal Deputy President J W Constance
Date 17 April 2012
INTRODUCTION
Ms Cook’s late husband, Gary Cook, was employed as an electrician by the respondent company at the time of his death on 2 January 2009. He is survived by Ms Cook and his son, Mr Haydn Cook.
As the death of Gary Cook was determined to be a result of an injury within the meaning of the Safety, Rehabilitation and Compensation Act1988(Cth), on 20 September 2010 the company decided to pay compensation of $412,000.00 in respect of Gary Cook’s death, the sum to be divided equally between Ms Cook and Haydn Cook.
Ms Cook has applied to the Tribunal to review the decision to pay part of the compensation to Haydn Cook. She argues that the total amount should be paid to herself as the only person who was wholly dependent on Gary Cook at the time of his death. This is opposed by Haydn Cook and the company.
For the reasons which follow the decision under review will be set aside and in substitution it will be decided that the total compensation of $412,000.00 is payable to Ms Cook.
LEGISLATION
Subsection 17(3) of the Act provides:
Subject to this section and to sections 16 and 18, if the employee dies leaving dependants some or all of whom were, at the date of the employee's death, wholly dependent on the employee, Comcare is liable to pay compensation in respect of the injury of $120,000 and that compensation is payable to, or in accordance with the directions of, Comcare for the benefit of all of those dependants.
The total amount payable is indexed and was $412,000.00 at the relevant time.
Subsection 17(4) provides:
If the employee dies without leaving dependants who were wholly dependent on the employee at the date of the employee's death but leaving dependants who were partly dependent on the employee at that date:
(a)subject to this section and to sections 16 and 18, Comcare is liable to pay compensation in respect of the injury of such amount, not exceeding $120,000 as Comcare determines, having regard to any losses suffered by those dependants as a result of the cessation of the employee's earnings; and
(b)that compensation is payable to, or in accordance with the directions of, Comcare for the benefit of those dependants.
Subsection 17(8) provides:
Where an amount of compensation is payable under this section for the benefit of 2 or more dependants of the deceased employee, Comcare shall determine the shares of those dependants in that amount as Comcare thinks fit, having regard to any losses suffered by those dependants as a result of the cessation of the employee's earnings.
Under the Act the company exercises the powers given to Comcare by the above provisions.
ISSUES FOR DETERMINATION
The parties agree that both Ms Cook and Haydn Cook were dependants of Gary Cook at the time of his death. It is agreed further that under subsection 4(5) of the Act Ms Cook is taken to have been totally dependent upon Gary Cook at the time of his death as she was his spouse and living with him at the time. I am satisfied on the evidence that these agreements are appropriate.
The issues for determination are as follows.
(1)Was Haydn Cook totally or partly dependent upon Gary Cook at the time of Gary Cook’s death?
(2)Is Haydn Cook entitled to a share in the compensation payable by the company under subsection 17(3) of the Act?
(3)If the answer to (2) is yes, what is the share of the compensation to which Haydn Cook is entitled?
EVIDENCE AND FINDINGS OF FACT
Haydn Cook gave evidence and confirmed the contents of his statement made 22 September 2011.[1] Unless stated otherwise the following facts are found on the basis of the evidence of Haydn Cook.
[1] Exhibit OP2.
Haydn Cook is 17 years old. He is in Year 12 at High School. He lives with his mother, Ms Ward.
Gary Cook and Ms Ward separated when Haydn Cook was about four years old. From that time he lived most of the time with his mother, although he spent many weekends and part of every school holidays with his father and Ms Cook. He had a close relationship with his father and with Ms Cook.
Up until he died, Gary Cook provided food, accommodation, entertainment, clothing and pocket money for Haydn Cook when Haydn was staying with him.
When Haydn Cook was not staying with his father, he lived with his mother in her home. At the time of Gary Cook’s death this was a house rented by Ms Ward at Pambula, New South Wales. On the basis of the evidence before me I am satisfied that when Haydn Cook was staying in her home, Ms Ward provided for all of his needs, although the source of funding for the necessary expenditure is not clear.
At the time of his death, and for several years previously, Gary Cook paid child support to Ms Ward for Haydn Cook at the rate of $275.00 per fortnight.[2]
[2] Ms Cook’s evidence, transcript 19/11/2011.
During the 2008-2009 financial year Ms Ward received a parenting payment single from Centrelink in the sum of $13,965.00 by reason of her care of Haydn Cook during this period.[3] On the basis of the annual payment, at the time of Gary Cook’s death Ms Ward was receiving approximately $530.00 per fortnight by way of parenting payment to assist in Haydn’s care.
[3] Exhibit T1.
REASONING
Issue 1: Was Haydn Cook totally or partly dependent upon Gary Cook at the time of Gary Cook’s death?
As Gary Cook was paying regular child support for Haydn Cook, it is clear that H he was at least partially dependent on his father. This is not in dispute. However the parties do not agree that Haydn Cook was wholly dependent on his father at the time Gary Cook died.
It was argued on behalf of Haydn Cook that he was totally dependent on his father. Counsel relied on the following passage from the judgement of Gibbs J. in Aafjes v Kearney: [4]
“At the date of the death of her father the respondent lived with her mother and the mother’s second husband, in their home and her mother provided her with household items such as cutlery, cooking utensils and bedding. Her mother also made some of her clothing. In these circumstances it is understandably argued that the respondent in fact depended for an important part of her support from her stepfather and her mother and therefore could not have been wholly dependent upon her father. In Kauri Timber Co. (Tas.) Pty. Ltd. V. Reeman (19), I accepted that one person is dependent on another for support if the former in fact depends on the latter for support even though he does not need to do so and could have provided some or all of his necessities from another source. I adhere to that view but it does not follow from it that a person who in fact receives some support from one person cannot properly be said to be wholly dependent on another. It is not the mere fact of receipt of support but the dependence or reliance upon another to provide it that matters. The question whether there is in fact dependence or reliance at the date of death is not to be answered by looking only to the circumstances as they existed at that date; “past events and future probabilities” have to be considered (20). The fact that at the date of death the daughter was being supplied with some of the necessities of life by some third person does not necessarily mean that she was not then wholly dependent for her support upon her father.”
[4] (1994) 180 CLR 199, 207.
It is beyond doubt that a minor may be dependant solely on one party even though some support is provided by another. However I do not accept the argument that the decision of the High Court requires a finding that Haydn Cook was wholly dependent on his father at the relevant time.
In Aafjes v Kearney the High Court made it clear that the determination of the degree of dependency in the circumstances before it was a question of fact. The Court then held that evidence that a person has other means of support in addition to that provided by one parent, does not necessarily exclude a finding of total dependency on that parent.
On the facts before me Ms Ward was providing a home for Haydn Cook at the time of his father’s death. She provided his food and clothing, at least in the sense that she purchased these items for him. Ms Ward did not give evidence. A statement made by Ms Ward was not relied upon on behalf of Haydn Cook. The evidence before me does not establish the expenditure incurred by Ms Ward in providing for Haydn’s needs nor how the payments made by Gary Cook were disbursed. However I am satisfied that as at the date of Gary Cook’s death Ms Ward was in receipt of a parenting benefit in respect of Haydn and had been in recept of this, or a similar benefit, since at least 1996.[5] During the 2008-2009 financial year Ms Ward received a parenting payment single of $13,965.00 which indicates that at the time of Gary Cook’s death she was receiving payments of approximately $530.00 per fortnight to assist in the care of Haydn. On the basis of these facts I am satisfied that Haydn Cook was partly dependent, and not wholly dependent upon Gary Cook for economic support at the time Gary Cook died.
[5] Exhibit T1.
It was argued on behalf of Haydn Cook that some assistance can be obtained in relation to the concept of dependency by looking to the provisions of the Family Law Act 1975 (Cth). It is put that section 66C of that Act imposes an obligation on both parents to maintain a child. While I have some reservations about the usefulness of this comparison of provisions in any event, I do not accept that it assists Haydn Cook’s case. In my view, the proposition that both parents have the primary duty to support their child supports the argument that in Haydn Cook’s situation he was not wholly dependent on either parent.
Issue 2: Is Haydn Cook entitled to a share of the compensation payable by the company under subsection 17(3) of the Safety, Rehabilitation and Compensation Act 1988(Cth)?
Counsel for Haydn Cook and Counsel for the employer both argued that even if he was found to have been partly dependent on Gary Cook he is entitled to share in the payment required under subsection 17(3). It was put that the Act is beneficial legislation and, if the intention of Parliament is not clear it should be interpreted in favour of all dependents, including those who are only partly dependent.
On behalf of Haydn Cook the argument was put as follows:
The reference to a class of persons “ … some or all of whom were … wholly dependent on the employee …” does not exclude by definition those persons who were partly dependent. In the absence of a clear statement excluding a particular class of beneficiaries the definition includes those persons who were partly dependent on the deceased. Indeed the last words of section 17(3) make a reference to compensation being payable for the benefit “… of all those dependents.” The phrase ‘all of those dependents’, when read with the reference to dependents “ … some or all of whom where … wholly dependent …” must, it is submitted, add weight to an interpretation of section 17(3) that includes all those dependents who are dependent for economic support on the deceased whether they be wholly or partly dependent.[6]
[6] Other Party’s Submissions 25/10/11 at para.3.16.
It was argued for the company that “by use of the words ‘some or all’ admits to the cohort including dependents who were not wholly dependent on the employee.” [7]
[7] Respondent’s Submissions 24/10/11 p.7.
I do not accept these arguments. In my view the words “for the benefit of all those dependents” refer to the words “dependants … wholly dependent on the employee” used earlier in the subsection. The word “all” indicates that the compensation is to be shared between all of those who were wholly dependent on the employee.
The interpretation promoted on behalf of Haydn Cook and the employer would render the words “some or all of whom were, at the date of the employee’s death, wholly dependent on the employee” superfluous. If their argument is correct these words could be omitted as the definition of dependant in subsection 4(1) includes the requirement that the person be “wholly or partly dependent on the employee at the date of the employee’s death.”
The scheme of the Act suggests also that subsection 17(3) applies only to dependents who were wholly dependent. If an employee dies leaving only dependants who were partly dependent, the provisions of subsection 17(4) apply, in which case an amount not exceeding the prescribed amount is to be distributed. In this situation Comcare (or the licensed corporation) is given discretion to decide the total amount payable and the amount payable to each of the dependants. This is to be contrasted with the provision relating to dependents who are wholly dependent. In the latter situation the whole of the lump sum is payable.
This interpretation which I have applied means that where there are one or more dependants who are wholly dependent, a dependant who is partly dependent is not entitled to share in a lump payment under either subsection 17(3) or subsection 17(4). This is not an absurd nor an unfair result. Taking into account the provisions of subsection 4(5)[8] of the Act it means that the spouse and prescribed children of a deceased employee who were living with the employee at the time of his/her death, are by definition entitled to share in the entirety of the prescribed amount. This group would normally comprise the employee’s immediate family. Others have to establish that they are wholly dependent to be entitled to share in the lump sum and thus to reduce the amount payable to those entitled by definition.
[8] Subsection 4(5) provides:
It may at first seem unfair that a person in Haydn Cook’s situation is not entitled to any share of the lump sum payable. However the Act provides for a benefit for a person in his circumstances in the form of a weekly payment. This further provision (in subsection 17(5)) supports the argument that where there are wholly dependent persons they are the only dependants to share in the lump sum; this does not mean that a partly dependent person is necessarily left without some compensation.
An examination of the history of this legislation also supports the interpretation I have determined.
Subsection 43(3) of the Compensation (Commonwealth Government Employees) Act 1971 (which preceded the current legislation) provided:
(3) If the employee dies leaving dependants who were, at the date of the death of the employee, wholly dependent upon him, then-
(a)subject to this section and to sections 37 and 44 of this Act, the compensation payable in respect of the injury is Fourteen thousand five hundred dollars; and
(b)that compensation is payable to, or in accordance with the directions of, the Commissioner for the benefit of those dependants and of any dependants who were partly dependent upon the employee at that date.
When the Safety, Rehabilitation and Compensation Act 1988(Cth) was enacted subsection 17(3) did not include the words emphasised above nor their equivalent. However the 1988 Act added a provision which deemed certain persons to be wholly dependent.[9] This is consistent with the intention of Parliament being that only those who were wholly dependent on a deceased worker should share in the lump sum payment.
[9] Subsection 4(5).
CONCLUSION
The reviewable decision made by the respondent Thales Australia Limited on 20 September 2010 will be set aside.
In substitution for the decision set aside, it will be decided that Thales Australia Limited shall pay the total amount of compensation payable under subsection 17(3) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) to the applicant Ms Cook.
Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made the Respondent shall pay the costs of the proceedings incurred by the applicant.
I certify that the preceding 37 (thirty‑seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
.....[sgd]...................................................
Associate
Dated 17 April 2012
Dates of hearing 10 and 11 October 2011 Date final submissions received 13 February 2012 Counsel for the Applicant Mr M Carey Solicitors for the Applicant Ms J Lewin, Maurice Blackburn Counsel for the Respondent Mr J Wallace Solicitors for the Respondent Ms N Fisher, Curwoods Lawyers Solicitors for the Joined Party Mr M Hagan, Kennedy & Cooke
For the purposes of this Act, a person who, immediately before the date of an employee's death, lived with the employee and was:
(a)the spouse of the employee; or
(b)a child of the employee, being a prescribed child;
shall be taken to be a person who was wholly dependent on the employee at that date.
‘Prescribed child’ is defined to mean:
(a)a person under 16; or
(b)a person who:
(i) is 16 or more but under 25;
(ii) is receiving full-time education at a school, college, university or other educational institution; and
(iii) is not ordinarily in employment or engaged in work on his or her own account.
Key Legal Topics
Areas of Law
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Civil Litigation & Procedure
Legal Concepts
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Limitation Periods
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Compensatory Damages
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Standing
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