Toll North Pty Ltd v Blackwood and Lamb

[2015] ICQ 4

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Toll North Pty Ltd  v Blackwood & Lamb [2015] ICQ 004

PARTIES:

TOLL NORTH PTY LTD
(appellant)
v
SIMON BLACKWOOD, WORKERS’ COMPENSATION REGULATOR
(first respondent)
FIONA LAMB
(second respondent)

CASE NO/S:

C/2014/24

PROCEEDING:

Appeal

DELIVERED ON:

29 January 2015

HEARING DATE:

20 August 2014

MEMBER:

President Martin

ORDER/S:

Appeal dismissed.

CATCHWORDS:

WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – PERSONS ENTITLED TO COMPENSATION – DEPENDANTS – DEPENDENCY – EXTENT OF DEPENDENCY – CHILDREN – where the deceased worker fathered three children – where one of the children is from a previous marriage – where the deceased worker contributed to the two household incomes in varying proportions – where the Toll Group Queensland Self Insurance Unit found that the three children were partial dependants – where the Regulator set aside that decision and substituted a new decision that the children were totally dependent on the deceased worker and the second respondent was partially dependent – where the Commission dismissed an appeal from the decision of the Regulator – whether the Commissioner confused a parental duty to maintain a child with a factual finding as to dependence – whether the Commissioner erred in his construction of s 200 and s 201 of the Workers Compensation and Rehabilitation Act 2003 and misapplied the concept of total or partial dependence

Family Law Act 1975 (Cth)
Workers Compensation and Rehabilitation Act 2003, s 200, s 201
Workers’ Compensation Act 1927 (Tas), s 3

CASES:

Aafjes v Kearney (1976) 180 CLR 199
Coles Myer Limited v Rudzinski [(2006) 5 DDCR 36; [2006] NSWCA 161
Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177
McCafferty’s Management Pty Ltd v Pimlott (1995) 12 NSWCCR 360
Potts v Niddrie & Benhar Coal Co Ltd [1913] AC 531
So v So [2004] NSWCA 67
Toll North Pty Ltd v Simon Blackwood (Workers’ Compensation Regulator) & Lamb [2014] QIRC 065

APPEARANCES:

R Treston QC for the appellant instructed by BT Lawyers
P O’Neill for the Regulator, directly instructed
P Rashleigh for the second respondent instructed by James Law

1. Part 11 of the Workers Compensation and Rehabilitation Act 2003 (“the Act”) deals with compensation available on the death of a person who is a “worker” within the meaning of the Act. Section 200 and s 201 of the Act deal with the compensation which is payable when a dependant is totally dependent (s 200) or partially dependent (s 201) on the worker’s earnings.

Factual background

1. The late William Lamb was a “worker” for the purposes of the Act. Each of his children is a “dependant” and a “member of the family” as those terms are defined in s 27 and s 28 of the Act respectively. The relevant facts are conveniently collected in the following paragraphs of the decision under appeal.[1]

   [1]Toll North Pty Ltd v Simon Blackwood (Workers’ Compensation Regulator) & Lamb [2014] QIRC 065.

“[4]     Mr Lamb was the father of three children:
           (a)         Tyler Alice Lamb, born on 23 August 1995;