Toll North Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) & Lamb
[2014] QIRC 65
•10 April 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Toll North Pty Ltd v Simon Blackwood (Workers' | |
| Compensation Regulator) & Lamb [2014] QIRC 065 | ||
| PARTIES: | Toll North Pty Ltd | |
| (Appellant) | ||
| v | ||
| Simon Blackwood (Workers' Compensation Regulator) | ||
| (First Respondent) | ||
| and | ||
| Fiona Lamb | ||
| (Second Respondent) | ||
| CASE NO: | WC/2013/191 | |
| PROCEEDING: | Appeal against Q-COMP decision | |
| DELIVERED ON: | 10 April 2014 | |
| HEARING DATE: | 12 March 2014 | |
| MEMBER: | Industrial Commissioner Neate | |
| ORDERS : | 1. The appeal is dismissed | |
|
Review Unit dated 5 June 2013 is confirmed
3. The Appellant is to pay the Respondents' costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.
| CATCHWORDS: | WORKERS' COMPENSATION – worker died in |
| employment related accident - claim for | |
| compensation by his wife and children – whether at | |
| least one of the children was, at the time of the worker's death, totally dependent on the worker's | |
| earnings – Workers' Compensation and Rehabilitation Act 2003 (Qld) ss 200(1), 201(1) – meaning of "totally dependent" – statutory | |
| interpretation - how to interpret words and phrases in | |
| the Act – no binding judicial authority – whether | |
| guidance can be obtained from judgments applying | |
| other, differently worded legislation – evidence of | |
| wife's earnings at time of worker's death – wife | |
| contributing to household income - whether children were "totally dependent" on the worker's earnings | |
| CASES: | Aafjes v Kearney (1976) 180 CLR 199 |
| Brett Holt Plumbing Pty Ltd v Q-COMP Review Unit | |
| (2005) 178 QGIG 255 Campbell v Westcourt Coal Co (1911) 14 GLR 323 | |
| David Henry Riley and Workcover Queensland | |
| (C/1997/23) - decision Fisher v Hebburn Limited (1960) 105 CLR 188 | |
| Gers v Workers' Compensation Board of Queensland | |
| (1985) 119 QGIG 104 Gordon v T&S Jordan [2000] NSWCC 54 Holdlen Pty Ltd v Walsh [2000] NSWCA 87 I W Applicant v The City of Perth (1997) 191 CLR 1 Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 | |
| Marshall v Director General, Department of | |
| Transport (2001) 205 CLR 603 | |
| Martina Limbach and Workers' Compensation Board of Queensland (C/1994/34) - decision | |
| McCafferty's Management Pty Ltd v Pimlott [1995] 12 NSWCCR 360 | |
| Narelle Patricia Fletcher v Q-COMP (WC/2010/24) - | |
| Decision Nicol v Chant (1909) 7 CLR 569 Potts v Niddrie and Benhar Coal Co Ltd [1913] AC 531 | |
| Project Blue Sky v Australian Broadcasting Authority | |
| (1998) 194 CLR 355 | |
| Re Lambroglou and Commonwealth of Australia | |
| (1989) 19 ALD 33 So v So [2004] NSWCA 67 | |
| Walker Corporation Pty Limited v Sydney Harbour | |
| Foreshore Authority (2008) 233 CLR 259 Walker v Wilson (1991) 172 CLR 195 Wills v Comcare [2001] AATA 973 Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328 WorkCover Queensland v Cook [2003] QIC 147 | |
| APPEARANCES: | Mr W. Campbell, counsel for the Appellant, instructed by Mr Aaron Clark of BT Lawyers Mr P. O'Neill, counsel for the First Respondent, instructed by Ms R. Maroney of the Workers' |
| Compensation Regulator | |
| Mr. P. Rashleigh, counsel for the Second Respondent, instructed by Ms L. James of McInnes Wilson Lawyers | |
| Decision |
[1] This is an appeal by Toll North Pty Ltd ("the Appellant") against the decision of the Review Unit of Q-COMP (now Simon Blackwood, Workers' Compensation Regulator) ("the First Respondent") that Master Callum Lamb, Miss Ellie Lamb and Miss Tyler Lamb are totally dependent upon the late Mr William Lamb, and that Mrs Fiona Anne Lamb ("the Second Respondent") is partially dependent on Mr Lamb, in accordance with ss 200 and 201 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ("the Act").
The issue
[2] The issue in this case is whether:
(a) at least one of the three children of the late Mr Lamb was totally dependent
on his earnings at the date of his death; or
(b) his children and Mrs Lamb were partially dependent on his earnings at the
date of his death.
Background
[3] The relevant facts in this case are not in dispute and can be stated briefly.
[4] Mr Lamb was the father of three children:
(a) Tyler Alice Lamb, born on 23 August 1995; (b) Callum Walter Lamb, born on 4 February 2005; and (c) Ellie Anne Lamb, born on 14 May 2007.
[5] Tyler Lamb's mother is Keryn Ann Lamb (nee Winbank), who was Mr Lamb's first wife. Fiona Lamb (nee Pamplin), Mr Lamb's second wife, is the mother of Callum Lamb and Ellie Lamb.
[6] Mr Lamb was a worker employed by the Appellant as a full-time permanent truck driver. He suffered fatal injuries in the course of his employment in a truck accident on 14 November 2012.
[7] At the time of his death, Mr Lamb was married to Fiona Lamb, with whom he resided with their two children, Callum (then aged 7 years) and Ellie (then aged 5 years).
[8] Tyler Lamb was 17 years old at that time and resided with her mother in Leeton, New South Wales.
[9] At the time of Mr Lamb's death:
(a) Mr Lamb contributed 60 percent of the total household income; (b)
Fiona Lamb, who was in full-time employment at that time, contributed 40 percent of the total household income;
(c)
neither Callum Lamb nor Ellie Lamb derived an income or contributed to the household income;
(d)
Mr Lamb contributed approximately 17.6 percent of his income in child support for the benefit of Tyler Lamb.
Appeal history
[10] An application under the Act for compensation - fatal injury was lodged by Fiona Lamb with the self-insurer on 28 November 2012 (Exhibit 3). In his decision dated 7 March 2013, Justin Crowley, for the Toll Group Queensland Self Insurance Unit, decided that "All of the worker's dependents were at the time of the worker's death, partially dependent on the worker's earnings" (Exhibit 1). Those dependants were Fiona Lamb, Callum Lamb, Ellie Lamb and Tyler Lamb.
[11] Fiona Lamb made an application for claim review, which was received by Q-COMP on 17 April 2013 (Exhibit 4). In the reasons for decision dated 5 June 2013, the relevant Review Officer in the Review Unit of Q-COMP:
set aside the decision of Toll Group Queensland to assess Callum Lamb,
Ellie Lamb and Tyler Lamb as partial dependants; and substituted a new decision that Callum Lamb, Ellie Lamb and Tyler Lamb are totally dependent upon William Lamb, and Fiona Lamb is partially dependent on William Lamb, in accordance with ss 200 and 201 of the Act.
[12] It is against that decision that the appeal is made.
[13] The Appellant seeks a decision that:
(a) the review decision be set aside; (b)
the claim for compensation made by Fiona Lamb on her own behalf and on behalf of Callum Lamb, Ellie Lamb and Tyler Lamb, be accepted on the basis that each was partially dependent upon Mr Lamb at the date of his death for the purposes of s 201 of the Act; and
(c) the First Respondent pay the Appellant's costs.
Approach to resolving the issue
[14] It was common ground between the parties that:
(a)
the appeal is by way of a hearing de novo and is not a rehearing on the record (although the decisions of the self-insurer and Q-COMP were in evidence);
(b) the Appellant bears the onus of proof on the balance of probabilities; and (c)
the determination of whether the children of Mr Lamb were totally or partially dependent on his earnings at the date of his death is a question of fact.
[15] There is no dispute that Mr Lamb was a "worker" for the purposes of the relevant sections of the Act, or that each of his children is a "dependant" and a "member of the family" of the deceased worker as those terms are defined in ss 27 and 28 of the Act respectively.
[16] It is clear from various English[1] and Australian authorities[2] that the matter of dependency (i.e. whether it exists and, if it does, whether it is partial or total) is a matter of fact. It is only possible to disturb a verdict in relation to dependency on the basis that the decision-maker misdirected themselves in some point of law or there was no evidence on which the findings could legally rest. Consequently, it is essential that the statute be interpreted correctly in order that the circumstances of the dependent children at the time of the worker's death can be characterised appropriately.
[1][2][17] The parties referred to and relied on numerous judicial decisions to assist in the interpretation of the relevant words of the Act. It was clear from the parties' submissions that there does not appear to be any judicial authority from the Queensland jurisdiction which deals with the issue in this case. As most of the judgments cited involved the interpretation of legislation in other jurisdictions, it will be necessary to consider the extent to which, if at all, those decisions provide guidance or, in the case of decisions of the High Court, are binding authority when deciding the meaning of the Act.
[18] The absence of direct judicial authority reinforces the need for the issue to be
resolved by reference to s 200(1) of the Act, particularly the words "at the time of
the worker's death, totally dependent on the worker's earnings". What the component
3
words and phrases mean might vary depending on their context and whether a literal reading or a purposive approach is employed, and whether any ambiguity of meaning should be resolved by construing the relevant sections as part of a remedial or beneficial legislative scheme.
Statutory provisions
[19] Part 11 of the Act provides a scheme for the payment of compensation on a worker's death. In summary, the scheme includes payment by an insurer of particular expenses arising from the worker's death and compensation to persons having an entitlement under Part 11 (s 194(3)). Compensation for the death of a worker is payable to, among others, the dependants entitled to compensation (s 196(1)(b)(ii)). In relevant circumstances, compensation for the death of a worker may be apportioned between the persons totally dependent on the worker and persons partially dependent on the worker (s 197). The Act provides for a range of other circumstances, including where a worker left a non-dependent spouse, issue or next of kin (s 201A), or where a worker was under 21 and is survived by a parent ordinarily resident in Australia but left no dependants (s 202), or where a worker is survived by a dependant who dies before payment is made for the dependant's benefit (s 204).
[20] In deciding the issue in this case it is appropriate to start with ss 200 and 201 of the Act, which state:
"200 Total dependency
(1)
This section applies if at least 1 of the worker's dependants was, at the time of the worker's death, totally dependent on the worker's earnings.
(2) The amount of compensation payable for the worker's dependants
is -
(a) if the worker has left dependent members of the worker's family, for the members - $374625; and (aa) if the worker has left a totally dependent spouse, for the spouse - $10000; and
(ab) if the worker has left a totally dependent spouse and dependant members of the worker's family who are under 6, for the spouse - a weekly amount equal to 8% of QOTE while a dependent member is under 6; and
(b) if the worker has left a totally dependant spouse and dependent members of the worker's family who are under 16 or are students, for each member other than the spouse - $20000; and (c) if the worker has left dependent members of the worker's family or a child of the worker's spouse who was totally dependent on the worker's earnings and who are under 16 or students, for each member or child - a weekly amount equal to 10% of QOTE while the member or child is under 16 or a student.
201 Partial dependency
(1)
This section applies if all of the worker's dependants were, at the time of the worker's death, partially dependent on the worker's earnings.
(2) The amount of compensation payable for the worker's dependants is -
(a)
if the worker has left dependent members of the worker's family, for the members - an amount the insurer considers is reasonable and proportionate to the monetary value of the loss of dependence by the dependants; and
(b)
if the worker has left dependent members of the worker's family or a child of the worker's spouse who was partially dependent on the worker's earnings and who are under 16 or students, for each member or child - a weekly amount equal to 7% of QOTE while the member or child is under 16 or a student.
(3) However, the amount payable under subsection (2)(a) -
(a) must not be less than 15% of the amount payable under section 200(2)(a); and (b) must not be more than the amount payable under section 200(2)(a)"
[21] The word "dependant" is defined in s 27 of the Act as:
"a member of the deceased worker's family who was completely or partly dependent on the worker's earnings at the time of the worker's death or, but for the worker's death, would have been so dependent."
[22] The expression "member of the family" of a deceased worker is defined in s 28 of the Act to include the worker's spouse or child. It will be noted that the definition of "dependant" is expressed in somewhat circular terms, particularly in the absence of a statutory definition of "dependent." A person is a worker's dependant if they were dependent on the worker's earnings. The concept of dependency is considered later in these reasons.
[23] For completeness, I note that s 197 of the Act provides:
"197 Total and partial dependants If compensation is payable for the death of a worker who is survived by persons totally dependent on the worker and persons partially dependent on the worker, the compensation may be apportioned between the total dependants and the partial dependants."
A literal reading
[24] Without any applicable definitions in the Act, and in the absence of relevant binding judicial decisions, the phrase "totally dependent" in s 201(1) could be read using its
4
ordinary English meaning of "wholly; entirely; completely" dependent. If s 200(1) is read in isolation, it would seem to follow that if a person is totally, wholly, entirely, completely dependent on the earnings of the worker, then that person cannot be also dependent, in part or in whole, on the earnings of another.
[25] That conclusion could be reinforced by reading s 200(1) in context with ss 201(1) and 197. Those sections clearly provide for circumstances where:
| (a) | at least one (and possibly each) of the worker's dependants was totally dependent on the worker's earnings; or |
| (b) | all of the worker's dependants were partially dependent on the worker's earnings; or |
| (c) | the worker is survived by persons totally dependent on the worker and by persons partially dependent on the worker. |
[26] If "partially dependent" is to be interpreted by reference to the ordinary English meaning of "partial", that is, "being such in part only; not total or general;
5 6
incomplete" or "forming only a part, not complete," then arguably "totally dependent" as used in s 200(1) should be read as only applying in circumstances where the worker's dependant was not also dependent in part on the earnings of another person.
[27] There is some judicial support for that approach. For example, Stephen J (dissenting) wrote in Kauri Timber Co (Tas) Pty Ltd v Reeman ("Kauri Timber"):
"Wholly to depend … upon something involves, as I understand the phrase,
having no other source to look to upon which reliance may be placed and from
7
which assistance of the relevant kind may be obtained".
Purposive approach to interpreting the statute
[28] The legislation must be interpreted in a purposive way. Subsection 14A(1) of the Acts Interpretation Act 1954 (Qld) states:
"In the interpretation of a provision of an Act, the interpretation that will best
achieve the purpose of the Act is to be preferred to any other interpretation."[29] The Appellant quoted the following passage from the judgment of McHugh,
Gummow, Kirby and Hayne JJ in Project Blue Sky v Australian Broadcasting
8
Authority:
"The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole.' In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.' Thus, the process of construction must always begin by examining the context of the provision that is being construed." (citations omitted)
[30] Later in that judgment, their Honours stated:[9]
"… the duty of a court is to give the words of a statutory provision the
meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." (citation omitted)
[31] The Parliament's intention might be discerned, in part at least, from the main objects of the Act which are expressed to be an aid to the interpretation of the Act (s 4). Some of them are directly relevant to cases such as this. In particular the Act
"establishes a workers' compensation scheme for Queensland … for dependants if a
worker's injury results in the worker's death " (s 5(1)(a)). Subsection 5(4) provides,
in part:"It is intended that the scheme should -
(a) maintain a balance between -
(i) providing fair and appropriate benefits for … dependants …; and
(ii) ensuring reasonable cost levels for employers; and
(b) ensure that … dependants are treated fairly by insurers …".
[32] Part 11 of the Act is titled "Compensation on worker's death." The object of this Part, set out in s 194(3), is to provide payment by an insurer of:
(a) particular expenses arising from the worker's injury and death; and (b) compensation to persons having an entitlement to compensation under this Part.
[33] The result of taking a purposive approach to the interpretation of the Act by reference only to the objects quoted above is not self-evident. An argument could be advanced for each party's submissions by reference to those objects, depending on:
(a) what are considered "fair and appropriate benefits" for dependants; (b)
where a "balance" should be maintained between providing such benefits and ensuring "reasonable" cost levels for employers;
(c) what it means for dependants to be treated "fairly" by insurers; and (d) who are "persons having an entitlement to compensation" under Part 11.
Interpreting beneficial or remedial legislation
[34] Mr Rashleigh, on behalf of the Second Respondent, submitted that the legislation
should be interpreted bearing in mind its "beneficial nature". Any ambiguity is to be
resolved in favour of those that benefit under the Act. He relied on Walker v
10
Wilson, a decision of the High Court, as well as passages from the textbook
Statutory Interpretation in Australia. Mr O'Neill for the First Respondent submitted
that the Commission should give appropriate recognition to the fact that the Act is
11
primarily remedial legislation which should be interpreted beneficially.
[35] Mr Campbell for the Appellant contended that there is no question of construing the act as beneficial legislation because, in his submission, there is no ambiguity. The legislation is clear. The questions raised in this case only arise because they have not been argued previously.
[36] It is sufficient to note that there is judicial authority for the proposition that workers'
compensation legislation is beneficial legislation and should be interpreted liberally,
and that ambiguous provisions in beneficial or remedial legislation are to be
interpreted in a manner favourable to those who are to benefit from the legislation
(although the beneficial interpretation approach does not only apply where there is
12
an ambiguity in the legislation).
[37] As an example of that approach, Walker v Wilson was a worker's compensation case
that involved a personal injury by accident while the worker was travelling on a
journey. The case is clearly distinguishable from the present case on the facts and
on the particular section of the Western Australian legislation under which the case
was decided. For present purposes it is relevant to note that, when interpreting that
section, Brennan J preferred the construction that seemed to "conform better with
13
the policy of the Act" and which was "more favourable to the worker". While 14
noting that the case ultimately turned on its own particular facts, Deane, Dawson, Toohey and McHugh JJ stated that the provisions of a section that are "intended to
operate in a wide variety of circumstances … should be construed and applied
'liberally and practically' in a way which will promote the underlying purpose and
object". The relevant phrases in the section "should be treated as having a
sufficiently flexible content to permit their practical application to the varying sets
15
of circumstances in which the sub-paragraph was intended to operate".
[38] That approach to the interpretation of beneficial provisions is subject to the rider that
the interpretation "must be restrained within the confines of the actual language
16
employed and what is fairly open on the words used". In other words, although
such a provision "must be given a liberal and beneficial construction", rather than
one which is "literal or technical", a court or tribunal "is not at liberty to give it a
17
construction that is unreasonable or unnatural." If the words of legislation admit of 18
only one outcome, that must be the meaning attributed to them.
[39] Even when the approach taken in Walker v Wilson applies, the result in a particular
19
case may turn on particular facts proved by evidence before the court.
[40] With those statements in mind, it is appropriate to see whether any of the judgments alluded to earlier provide guidance in construing s 200(1) of the Act.
Use of judicial decisions
[41] The parties referred the Commission to judgments of the House of Lords, the High Court of Australia, the New South Wales Court of Appeal, the Federal Court of Australia, the Supreme Court of the Northern Territory, the Industrial Court of Queensland, the Workers' Compensation Commission of New South Wales, the Compensation Court of New South Wales, the Workers Compensation Tribunal of South Australia, and the Administrative Appeals Tribunal.
[42] The judgments applied legislative provisions with some words and phrases that are different from the Act. Those judgments decided disputes that, on the facts, were different from the present case. The factual findings do not apply here. The primary potential benefit of the judgments derives from the approach taken to the interpretation of similar statutes. Put more precisely, can those judgments assist in deciding whether it is open to find as a matter of law that at least one of the three children of the late Mr Lamb was "totally dependent" on his earnings at the date of his death?
[43] Counsel for the respondent parties referred to and relied on a series of judgments which, they submitted, support an interpretation of s 200(1) that allows for a dependant to be "totally dependent" on more than one person, including the worker.
[44] Although the respondents acknowledged that none of those judgments was made in relation to the section being considered in this case, they submitted that the statutes being construed in those cases were so similar to s 200(1) that the decisions are applicable in the circumstances of this case.
[45] In the Second Respondent's submission, the authorities cited establish that a child can be totally dependent on a worker's earnings at the date of his death even though the child is provided with financial and other support by some other person, including the mother, and in circumstances where the income of the mother and father is pooled for the benefit of the family unit.
[46] The Appellant submitted, however, that the authorities relied on by the First Respondent not only involved relevantly different legislative provisions but were rehearings on the record where the powers of the appellate courts were exercisable only if the appellant could demonstrate that, on the evidence before the court below, the order the subject of the appeal was the result of some legal, factual or discretionary error. In the Appellant's submission, the Commission is not so restricted here. In my view, those are reasons to analyse the decisions carefully, not to disregard them.
[47] In any case, I am mindful of the caution that should be exercised when seeking to apply decisions from other jurisdictions to the interpretation of a different statute.
[48] In Marshall v Director General, Department of Transport[20] ("Marshall"), the High Court considered whether compensation for injurious affection is payable to a dispossessed landowner pursuant to s 20 of the Acquisition of Land Act 1967 (Qld). The High Court was referred to a series of judgments from the House of Lords (on differently worded English legislation) and Australian courts in relation to the correct construction of s 20(1)(b) of that Act. The High Court found that the language of s 20(1)(b) was plain, but then considered the various English and Australian judgments in relation to other legislation.
[20][49] McHugh J noted the similarity in the terms of the various pieces of legislation and
stated that there were no grounds upon which the principles laid down in the English
cases and frequently followed in Australia could be persuasively distinguished
because of the differences in the texts of the English statute and s 20(1)(b). His
21
Honour continued:
"But that does not mean that the courts of Queensland, when construing the legislation of that State, should slavishly follow judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation. The duty of courts, when construing legislation, is to give effect to the purpose of the legislation. The primary guide to understanding that purpose is the natural and ordinary meaning of the words of the legislation. Judicial decisions on similar or identical legislation in other jurisdictions are guides to, but cannot control, the meaning of legislation in the court's jurisdiction. Judicial decisions are not substitutes for the text of legislation although, by reason of the doctrine of precedent and the hierarchical nature of our court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation."
[50] That passage was quoted with approval by the High Court (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) in Walker Corporation Pty Limited v Sydney
22
Harbour Foreshore Authority. The Court was discussing the caution required in construing modern Australian legislation by reference to "principles" derived from a body of case law built up in various jurisdictions where there are in force statutes in the same terms or, at least, in relevantly similar terms.
[51] With that caution in mind, selected judgments are considered below by reference to the following:
(a)
the concept of dependency in the expression "totally dependent on the worker's earnings";
(b)
the difference between the "worker's earnings" as used in s 200(1) of the Act and "support" in other worker's compensation legislation;
(c)
the legal obligation of parents to provide support and the entitlement of dependent children to receive that support; and
(d)
circumstances where both parents are workers with earnings that are applied to support their dependent children.
Dependency
[52] In Kauri Timber,[23] the High Court considered whether the respondent, the widow of a deceased worker, was "wholly dependent upon his earnings" (as provided in the Workers' Compensation Act 1927 (Tas)). The respondent had private income but that was kept separate and not used for the family's living expenses or for her own personal maintenance. Rather it was used for the purchase, running and maintenance of a motor car, and for small purchases such as gifts. The High Court held, by majority (Barwick CJ, McTiernan and Gibbs JJ, Menzies and Stephen JJ dissenting), that the respondent was "wholly dependent" on the earnings of her husband.
[23]
[53] Although that case is distinguishable on its facts from the present case, the judgment contains analysis of a statutory criterion similar to s 200(1) of the Act.
[54] In Barwick CJ's opinion, the critical question in the case was "dependent for
24 25
what?" His Honour stated: "It can be concluded from the cases that the question of dependency is not to be answered by reference to legal obligations; that there is no standard of living which will determine the question; that dependency is not limited to the provision of the bare necessities of life. On the other hand, none of the reported judgments lends support to the view that if anything is spent by anyone other than a husband on or for a wife, irrespective of the object of the expenditure, total dependency is denied. Somewhere between the extremes of the provision of bare necessities and the receipt by the wife of any advantage not provided by her husband there must be a line, no doubt vaguely defined and difficult of precise or even approximate definition or description, which marks off the difference between expenditure which denotes and expenditure which denies dependency."
[55] Barwick CJ continued:[26]
[26]
"Underlying the concept of dependency in connection with these [Workers' Compensation] Acts there is, in my opinion, the notion of maintenance and support. The line to which I have referred is to be found in a case of the present kind in expenditure which is not made for the maintenance and support
of the person claiming dependency. … The expenditure which in my opinion,
is comprehended by it is, I think, related to the provision of the necessities of life having regard to the manner in which the worker's household in which the
claimant to dependency has participated lived. … That does not involve
setting up some standard as a level of expenditure by reference to which
support or maintenance can be referred."
[56] McTiernan J also agreed that the test was whether a person was wholly dependent on
the earnings of the worker for maintenance and support, and that the "the standard of
maintenance and support is not to be equated to some notional standard for a family
of this class, but 'what the family was in fact spending, for the purpose of its
27
maintenance as a family'." According to Gibbs J, the principle underlying the
authorities is that "it is the actual fact of dependence or reliance on the earnings of
another for support that is the test" and the "standard of support is set by the parties
28
themselves".
[57] Although he held that the respondent in that case was wholly dependent on the earnings of her husband for maintenance and support, Barwick CJ indicated that:
"…there may arise cases in which the private income of a wife has been used
to lift the living standard of the family and to increase the area of expenditure which could properly be said to be expenditure for the support or maintenance
of the household, including the wife. … It would be unwise, in my opinion, to
determine what is total dependency in terms appropriate to the necessary
exclusion of such a wife from total dependency. It may be a difficult matter to
decide in point of fact whether or not total dependency on the husband's
earnings exists in such a case. But it must be decided by answering the
question whether she relied for her maintenance and support as distinct from
all the advantages she may have or enjoy entirely on the earnings of her
29
husband."
[58] In Re Lambroglou and Commonwealth of Australia,[30] the Administrative Appeals Tribunal determined an application for review of a determination under the relevant Commonwealth legislation by the widow of a deceased worker. For present purposes, the relevant passage is the discussion of the concept of "dependency". Senior Member J Handley expressed the view that:
[30]
"Dependency … is the reliance by a person upon the earnings of another for
economic support, and that reliance is either whole or in part. If a person does
not earn and relies upon the earnings of another for support, that person is
wholly dependent. If a person does earn, but those earnings are not sufficient to
allow that person to be self-supporting, and relies also on the earnings of
another, that person is partly dependent, that is that person depends in part on
31
the earnings of that other person for support."
[59] In summary, those decisions provide support for the proposition that, in circumstances such as those of the present case, a person is dependent on a worker if that person relies on the worker for economic maintenance and support to provide at least the necessities of life. The standard of support is determined having regard to the manner in which the worker's household, in which the dependant participated, lived. That standard and the level of dependence (be it total or partial) are matters of fact to be decided on the evidence in each case.
Dependency on "earnings"
[60] In ss 200(1) and 201(1) of the Act, the focus of the dependency is on the "earnings" of the deceased worker. In the Appellant's submission, the intention of the Parliament is that the dependency cannot be on any other form of material, capital outlay, domestic or emotional support.
[61] The Appellant notes that the requirement that the dependency be on the earnings of the deceased worker was also a requirement of the legislation that preceded the Act in 1996, 1990 and 1946-1953.
[62] The parties referred to few judgments involving that language. The Appellant
32
referred, for example, to Fisher v Hebburn Ltd, in which the High Court when dealing with similar provisions held that a widow could not be said to be dependent upon her deceased's husband's earnings when he was in receipt of a pension and not "earnings."
[63] Matthews P followed Fisher v Hebburn Limited[33] in Gers v Workers' Compensation
[33]
34
Board of Queensland ("Gers") when discussing what might establish dependency on the earnings of the deceased:
"This restriction to reliance upon the earnings continues to be applied in
Queensland, although in some other States, for example New South Wales, the
effect of Fisher v Hebburn Limited (supra) has by amendment of the legislation
been nullified. Capital outlays benefiting a person as distinct from maintenance
35
items do not evidence dependency."
[64] In Gers there was no suggestion in the evidence that purchase of the motor car evidenced any dependency of the appellant. However, payment of the sums necessary to register and insure a motor vehicle and some maintenance on the house was held to go towards establishing dependency. So, too, did, sums used to purchase articles for use in the appellant's house and to pay for her to have a holiday.
[65] As will be apparent later in these reasons, the judgment of the High Court in Aafjes v
36
Kearney ("Aafjes") was the subject of submissions, not only for the principles
contained in it but also because of its significance for the subsequent decisions of
37
other courts and tribunals. In Aafjes, Mason J noted that s 8(1) of the Workers'
Compensation Act 1926 (NSW) referred to "a dependant wholly dependent for
support" upon the deceased. He stated that there was much to be said for the view
that in s 8(1) the association of the words "wholly dependent" with the words "for
support" makes it even more apparent that the existence of a legal obligation to
support is an important factor to be taken into account in the application of the
38
section. By comparison, the English provisions ("if the workman leaves any
dependants wholly dependent upon his earnings at the time of his death") were more
susceptible to a construction which confined their application to the inquiry: Are the
39
deceased's earnings the applicant's sole source of support?
[66] The Appellant sought to distinguish the High Court's decision in Aafjes[40] because it
[40]
was based on New South Wales legislation which had been amended since the High
41
Court's decision in Fisher v Hebburn Limited. Mr Campbell submitted that
replacing the word "earnings" with "support" effected a change which used a "very
wide provision" that "says nothing about financial support." In the Appellant's
42
submission, that change affects the relevance of the decision in Aafjes to the
construction of s 200(1) of the Act which still speaks of "earnings." The same
submission was made in relation to the decision of the New South Wales Court of
Appeal in McCafferty's Management Pty Ltd v Pimlott ("McCaffety's
43
Management").
[67] The Appellant relied on the decision of the High Court in Fisher v Hebburn Limited which, it submitted, applied similar legislation and made findings consistent with what is being urged by the Appellant in this case. To the extent that other judgments apply legislation that refers to dependency for "support" (which can include a range of things that parents are obliged to provide for their children, beyond their financial earnings), those authorities are distinguishable. Mr Campbell submitted that those authorities do not help answer the question under the Act, which refers to "earnings". At the heart of his submission was the proposition that a person cannot be totally dependent on two people's earnings. A body of judicial authority interpreting the amended legislation does not, he submitted, say that one can be financially dependent on two persons.
[68] Having considered both the High Court's decision and the Appellant's submission, I
have concluded, first, that Fisher v Hebburn Limited has no direct bearing on the
issue in this case. There is no doubt that the Act refers only to dependence on the worker's "earnings." The decision in Fisher v Hebburn Limited indicates the limits
44
of the word "earnings" and is apparently still authority in Queensland on that point. But the issue in this case concerns the circumstances in which a dependant can be said to be "totally dependent" on the earnings of the worker at the date of his death.
[69] Second, and more importantly, the force of the Appellant's submission is conditioned by the meaning of "dependent" in s 200(1), as discussed earlier in these reasons for decision.
[70] Strictly speaking, the judgments applying differently worded legislation are
distinguishable on the basis that these statutes refer to other, broader means by
which the needs of dependants are met. In other words, the cases are distinguishable
because they refer to types of support beyond the scope of "earnings" as interpreted
45
in cases such as Fisher v Hebburn Limited.
[71] However, in other respects the judgments potentially provide guidance in the present case, particularly in relation to the nature of dependency and whether a dependant can be totally dependent on one person while receiving support from another. In my opinion, minor differences of statutory wording (such as "wholly" and "totally") do not detract from the potential utility of judgments interpreting and applying such words and phrases.
[72] The statement in Marshall quoted earlier does not preclude assistance being gained from such other judgments so long as this case is decided by reference to the words of the relevant statutory provision. As will be seen, other judgments are helpful and persuasive in that endeavour.
Parental obligation to provide support for children
[73] It is appropriate now to consider the two separate but related propositions that were at the heart of the Respondents' case:
(a) that both parents are jointly and severally responsible for providing the necessities of life for their children; and (b) that a child can be "totally dependent" on the earnings of both parents
[74] The first proposition is demonstrated by the judgments summarised below.
[75] As long ago as 1913, the House of Lords sought to clarify the legal basis for
dependency, particularly in circumstances where the deceased parent was separated
from and was giving little financial support to the surviving child or children. In
46
Potts v Niddrie and Benhar Coal Company Limited, Viscount Haldane (with
whom Lord De Villiers concurred) wrote that, in certain circumstances, a mere legal
right to maintenance may not be sufficient. However, his Lordship stated, the true
question is whether there was, as one of the facts to be taken into account, an
effective and valuable legal right? If there was such a legal right and there was no
legal difficulty in the way of enforcing it, and if there was evidence on which the
47
fact of dependency could be found, then that finding of fact would be conclusive.
The same conclusion was reached by Lord Shaw and Lord Moulton.
[76] In McCafferty's Management,[48] Meagher JA, when considering whether a daughter was wholly dependent on her deceased father, referred to the "legal obligation of the deceased to support his child." According to Meagher JA:
[48]
"This is in no way diminished if … his wife was under an equal and coordinate
obligation. They were both, in my view, under a joint and several obligation to
provide for her."[77] In Holdlen Pty Ltd v Walsh ("Holdlen"),[49] Giles JA (with whom Meagher and
[49]
Heydon JJA agreed) referred to that aspect of Meagher JA's decision in which he
described the worker's "legal obligation to support his child" and that the worker's
50
wife "was under an equal obligation."
[78] In Gordon v T&S Jordan t/as Blaxland Bakery & Patisserie,[51] the issue was whether
[51]
a child (Billy Joe) was totally dependent on the deceased worker (the child's father)
even though the child's mother (Ms Mulvey) provided equal support. Armitage J
stated that Billy-Joe had "a legal right to receive support from his father" as at the
date of death. Unlike the situation which prevailed in Aafjes, that legal right was
being enforced or rather voluntarily conceded by the deceased, by way of support
which was to all intents and purposes equal to that being provided by Ms Mulvey.
Armitage J referred to McCafferty's Management, "where the principle was
recognised that a child may be totally dependent upon two parents because their
52
liability to provide support is joint and severable."
[79] In Wills v Comcare,[53] the Administrative Appeals Tribunal had to decide whether
[53]
the applicant daughter (Jennifer) was totally dependent on her deceased father
(Joseph) even though her parents were divorced and the applicant lived with and
was supported by her mother (Juliet). In reaching his decision, Senior Member
Muller stated that, at the date of Joseph's death, both he and Juliet were "legally
54
obliged to support Jennifer."
[80] In So v So,[55] Santow JA (with whom Meagher and McColl JJA agreed) referred to
[55]
the focus in cases such as this being on the "legal obligation of the deceased parent
to have supported the child and the reliance placed by that child upon fulfilment of
56
that parental obligation." His Honour stated that in contemporary society, a child will no less rely on its mother as its father "fulfilling an equal and co-ordinate
57
obligation to provide support."
Total dependence on earnings of both parents
[81] In light of the statements about the joint and several obligations of both parents, one can assess the proposition advanced by the respondents that children can be totally dependent on the earnings of both parents. Hence, if one parent dies, the children can be found to have been "totally dependent on the worker's earnings" at the time of the worker's death.
[82] In Aafjes,[58] Gibbs J stated that a person who has received some support from one
[58]
person can 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
59
matters." The fact that at the date of death a child was being supplied with some of
the necessities of life by some third person does not necessarily mean that the child
was not then wholly dependent for their support from the father. "(E)ven if the
assistance was substantial and likely to be continued, it would not necessarily have
the effect that the child had to be regarded as a partial dependant of her benefactor
60
and therefore as not wholly dependent on her father," even where the benefactor was the grandparent, stepfather or mother.
[83] Much reliance was placed on the following statement by Mason J (whom Stephen J
61
agreed) in Aafjes:
"The dominating consideration here and in the United Kingdom is a strong disinclination, founded on common sense, to attribute to the legislature an intention to deprive an applicant of a claim based on total dependency for support where a legal obligation to provide that support exists which has not been abandoned, merely because the applicant is in receipt of benefits from others, whether proceeding from charity or some other motive."
[84] On one reading, Mason J was drawing a distinction between:
(a) support being provided by a person who has a legal obligation to provide that support; and (b) benefits derived from others, where the provision of those benefits proceeds from charity or some other motive, but not from a legal obligation.
That distinction was apparently reinforced in the next paragraph of his Honour's judgment.
[85] If that is a correct understanding of Mason J's approach then, so long as a deceased parent was within the first category, their dependant can make a claim based on total dependency for support even though they are also receiving benefits from a person or persons in the second category. What that analysis does not address is the situation in the present case where both parents are in the first category and there is no one who is in the second category.
[86] The apparently limited scope of Mason J's statement, does not prevent someone who receives support solely from two people who are in the first category, one of whom is a worker, from being totally dependent on the earnings the worker if that worker dies. That conclusion flows from subsequent decisions of the New South Wales Court of Appeal, and it is on those decisions that the Respondents rely.
[87] In McCafferty's Management,[62] at the time of his death, the deceased was earning $659.00 per week and his wife was working and earning $498.00 per week. Their daughter was 14 at the time of her father's death. She was a secondary school student and lived with her parents. The parents pooled their incomes and paid off the mortgage on their house and their hire purchase commitments on their car from the pool. The trial judge found that the daughter was totally dependent upon her father.
[62]
[88] An appeal against that decision was dismissed by the New South Wales Court of
Appeal. In the lead judgment, Meagher JA accepted the finding of the trial judge
63
that the "strong expression of principle" in the judgment of Mason J in Aafjes was
apt to the task before the court in this case where the facts were stronger than in
64
Aafjes. Meagher JA considered that one factor in support of finding that a daughter was wholly dependent on her deceased father (even though, at the time of his death, the mother was also working and had pooled her income with his to meet family expenses) was the legal obligation of the deceased to support his child. That obligation was not diminished if his wife was under an "equal and coordinate obligation." According to Meagher JA, both parents were under "a joint, or joint and several obligation, to provide for" their daughter, and she was "totally dependent on each of them."
[89] Clarke JA was satisfied that the trial judge came to the correct conclusion and agreed with the order proposed by Meagher JA. Clarke JA did not find it a "startling proposition" that the daughter was wholly dependent on each of her parents. However, in the circumstances of the case (including that the wife had intended to retire about three years after the year that the worker died and hence he would have been the only wage earner in the house), Clarke JA found it unnecessary to reach a conclusion on the point.
[90] Priestley JA agreed with Clarke and Meagher JJA that the appeal should be
dismissed because of the likelihood that the deceased would have become the only
wage earner in the household within about three years from the time he was killed,
Priestley JA found it unnecessary to examine the "possible problems" raised about
65
the applicability of Aafjes to cases where the parents are working full-time. [91] Any equivocation that might be inferred from the statements of Clarke and Priestly
JJA seem to have dissipated in subsequent decisions of the New South Wales Court
66
of Appeal. In Holdlen, that Court again considered the question of "total dependency." Giles JA, with whom Meagher and Heydon JJA agreed, wrote:
"Dependence does not look only to the fact of receipt of support, but also to
reliance on another to provide it. Total dependence is not incompatible with the
67
fact of receipt of support from someone else."
[92] Although the facts in that case were significantly different from the facts in the
68
present case, it is relevant to note that the deceased worker in Holdlen paid
maintenance for his child who had remained with the worker's wife when the parents
separated about two years before his death. At the time of the worker's injury, some
three years before his death, and at all times thereafter his wife was in employment.
At the time of his injury her income was approximately the same as his and it had
69
increased subsequently. The Court of Appeal dismissed an appeal from the Compensation Court's findings, including the finding that the child was wholly dependent for support on the worker.
[93] In So v So,[70] the New South Wales Court of Appeal considered whether a student
[70]
was a dependant "wholly dependent for support on the worker," in this case the
student's mother. This was another case where both the father and mother earned
income and each contributed financially to the support of their daughter. The father
also provided the house in which the family lived making repayments of the
mortgage, and he paid the rates and taxes. The Court held that both parents provided
71
"essential support."
[94] It was submitted on behalf of the appellant student that a child could, despite
unequal financial contribution by each parent, be wholly dependent on both. Having
considered judgments in leading English and Australian cases, Santow JA (with
whom Meagher and McColl JJA agreed) wrote that "the focus is not upon the
relative amounts each parent actually paid or provided. Rather it is upon the legal
obligation of the deceased parent to have supported the child and the reliance placed
72
by that child upon fulfilment of that parental obligation." His Honour quoted with 73 74
approval the statement of Giles JA in Holdlen quoted in [91] above.
[95] Santow JA ruled that "no other conclusion was reasonably open than that the
75
appellant was wholly dependent on her mother (as well as her father)."
[96] His Honour also wrote:
"It is a commonplace that there is considerable individual diversity in the
varying ways couples choose to order their individual finances and share their
obligations as householders and parents. They may choose to pool earnings or
the reverse. It is often quite adventitious whether a greater amount emanates
from one parent rather than the other, reflecting the variety of domestic
arrangements as well as unequal earnings. None of that diversity should detract
from finding an 'equal and co-ordinate obligation' by each parent to support the
76
child."
[97] As noted earlier, Santow JA continued:
"in contemporary society … a child will no less rely on its mother as its father
77
fulfilling an equal and co-ordinate obligation to provide support."
[98] A finding that a young child was totally dependent on his deceased father was made
by the Compensation Court of New South Wales in Gordon v T&S Jordan t/as
78
Blaxland Bakery & Patisserie, where the father and mother were living together
but not married. Each was contributing to living expenses,` and the deceased had
provided financial support for the child when the parents were living apart.
79
Armitage J referred to the judgments in McCafferty's Management, in which "the
principle was recognised that a child may be totally dependent upon two parents
80
because their liability to provide support is joint and severable." Armitage J found
that, at the date of the father's death, the child was totally dependent upon the
deceased even though the child was also totally dependent on his mother because of
81
the equal support provided by them. His Honour continued: "As in McCafferty, although this is not an important consideration, the earnings
of the deceased were greater than those of Ms Mulvey as at the date of death.
More importantly, the deceased and Ms Mulvey, while not living together as a
couple in the full sense, were resident at the same premises and contributing
equally both to the rental for the premises and for the daily necessities of life of
82
both themselves and Billy-Joe."
[99] The principle recognised in McCafferty's Management was also recognised and
83
applied by the Administrative Appeals Tribunal in Wills v Comcare, in circumstances where a student with no income of her own was in fact wholly dependent on her father (Joseph, the deceased worker) and her mother (Juliet). The parents' respective financial contributions to the applicant's maintenance and support were 60 percent from her father and 40 percent from her mother.
[100]In reliance on the judgments in the Aafjes[84] and McCafferty's Management[85] cases, Senior Member Muller stated:
[84]
[85]
"At the date of his death Joseph was legally obliged to support Jennifer. Juliet
was also legally obliged to support Jennifer. Jennifer had no income of her own
and she was wholly dependent on each of Joseph and Juliet. The fact that
Jennifer received significant support from Juliet in no way diminishes the fact
86
that she was totally dependent on her father for economic support."
The operation of s 200(2)(b) of the Act
[101]The Appellant made a submission in relation to s 200(2)(b) of the Act. That paragraph specifies the amount of compensation payable for the worker's dependants if the worker has left a totally dependent spouse and dependent members of the worker's family who are under 16 or are students. The paragraph only applies where at least one of the worker's dependants was, at the time of the worker's death, totally dependent on the worker's earnings
[102]The Appellant submitted that s 200(2)(b) cannot be intended to relate to children who are partially supporting themselves through work. The Appellant contended that concept of such a child being only partially dependent upon the deceased parent, if the question of whether dependency is total or partial, is considered by reference to whether the child is also partially dependant on the support of another person. Where a child is partially supported by the earnings of one parent and partially supported by the earnings of the other parent, then the child is, logically, not totally dependent upon either parent. To construe such circumstances in any other way would be to deprive s 201(2)(b) of any meaning. Such an approach to statutory interpretation is impermissible.
[103]There are two responses to that submission. First, as noted in some detail earlier, there are many judicial decisions based on the principle that a child can be dependent on the earnings of both parents and yet be held to be "totally dependent" on the earnings of one parent at the time of that worker's death.
[104]Second, both respondents submitted that children under 16, who are students often engage in paid employment, albeit on a part-time basis. Such a child could be earning quite a substantial sum of money in circumstances where they might be only partially dependent upon the earnings of their parent. That fact does not mean that s 200(2)(b) has no work to do. I agree.
Conclusion on the scope of the "totally dependent" in s 200(1) of the Act
[105] Do the words of s 200(1) of the Act permit the Commission to find total dependency
87
of one or more of the Lamb children on the earnings of their deceased father?
[106]The preceding survey of the judgments establishes that there is judicial authority, or at least persuasive judicial reasoning, to guide the interpretation of s 200(1) of the Act, particularly the scope of the phrase "totally dependent" on the worker's earnings.
[107] In light of those judgments, and bearing in mind the caution provided by McHugh J
88
in Marshall (quoted at [49] of these reasons), I am satisfied that a proper reading of s 200(1) of the Act permits a finding that a child is "totally dependent on the worker's earnings" at the time of the worker's death in circumstances when the child is also dependent on another parent who is under a legal obligation to provide the child with economic maintenance and support.
Analysing the facts
[108]As noted earlier, the question of whether one or more of the children of Mr Lamb were totally or partially dependant on his earnings at the date of his death is a question of fact. That question must be decided on the evidence in this case. Judgments in other cases may provide some assistance but none of them can determine the outcome.
[109]Dependency on the worker's earnings must have existed "at the time of the worker's
death." The Appellant submitted, by reference to previous decisions, that one is
entitled to look at past events to reach a conclusion as to whether there was
dependency at the time of death, and consider probabilities of the future. Clear
89
support for that submission is found in Aafjes where Gibbs J stated that:
"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 that existed at that date; 'past events and future probabilities' have to be considered."
[110] The First Respondent also submitted that:
(a) although the question of dependency is assessed at the date of death, it is not at that date that the degree of quantum of dependency is assessed; and (b) in determining whether there is in fact a dependency and in assessing the extent of a dependency upon a deceased worker, it is appropriate and in fact necessary to give some consideration to future events.
[111]The circumstances of those children and their parents at the date of the deceased's death are set out [4] to [9] and need not be repeated.
[112]In summary, the three children were 5, 7 and 17 years of age when Mr Lamb died. In deciding whether they were totally dependent on Mr Lamb's earnings at that time, it is appropriate to consider two issues in relation to the evidence.
[113]First, I need to assess the financial situation of the children and the extent of their dependence on the earnings of both their parents at the date of Mr Lamb's death. The financial situation of Callum and Ellie Lamb at that date is clear. They depended on the earnings of both parents and apparently had no other source of financial support. Given their ages, they could not have earned income and could not have been other than totally dependent on the earnings of their parents.
[114]Information from the tax returns for the three financial years preceding Mr Lamb's death referred to in Q-COMP's reasons for decision (Exhibit 2) show that, of the total taxable income earned by both parents, the percentage earned by Fiona Lamb was:
2009-2010 27% 2010-2011 31% 2011-2012 38%. [115] However, given that 17.6 percent of Mr Lamb's earnings were going to Tyler Lamb, Fiona Lamb's contribution to the support of the household might have comprised a higher proportion than those figures suggest.
[116]The financial situation of Tyler Lamb is less clear. There is no evidence that she was earning any income at the time of her father's death. Tyler was a Year 11 high school student and intended to continue to university following completion of her Year 12 studies. The evidence is that total household income of Keryn Ann Lamb and Tyler Lamb was derived from the earnings of Keryn Lamb and a contribution from Mr Lamb calculated at approximately 17.6 percent of his earnings. What is not clear is what percentage of the total household income of Keryn and Tyler Lamb comprised Mr Lamb's contribution or, more relevantly, what proportion of the financial support on which Tyler depended was provided by Mr Lamb.
[117]A rough estimate can be made based on figures contained in the decision of Q- COMP (Exhibit 2) showing Keryn Lamb's taxable income in 2010-2011 and 2011- 2012, and the monthly payments of Child Support by Mr Lamb. Those figures suggest that Mr Lamb's contributions were about 20 percent of that household's before tax income. If one assumes that his contribution was devoted entirely to Tyler's support, then the proportion of his contribution to the amount provided for her support would have been greater.
[118]The Appellant submitted that the evidence in relation to Tyler Lamb shows that she was partly supported by a household entirely separate from the household of the deceased Mr Lamb and Fiona Lamb. Consequently, it is submitted, Tyler was not totally dependant on the earnings of the deceased.
[119] When considering that evidence, I am conscious of the statements of Santow JA
90
(with whom Meagher and McColl JJA agreed) in So v So, that "total dependence is
not incompatible with the fact of receipt of support from someone else" and that it is
an "erroneous test of dependency" in which the focus is "simply on a calculation of
relative contribution." Those statements are consistent with the earlier statements in
91
Aafjes by McTiernan J that the extent of dependence is "not exactly measured" by 92
the payments that a dependant child's father was making, and by Gibbs J that it
does not follow that "a person who in fact receives some support from one person
93
cannot properly be said to be wholly dependent on another."
[120]Second, as noted earlier, although dependency is determined at the date of the worker's death, some regard can be had to relevant past events and future probabilities. Accordingly, it is appropriate to look at Fiona Lamb's employment immediately before Mr Lamb's death and the expectations of her ongoing employment at that date.
| [121] In | summary: |
(a) Fiona Lamb commenced employment as a data process receiver with SunRice in Leeton, New South Wales around 2003; (b) she rose through the ranks and, when SunRice became CopRice, retained her employment; (c) apart from periods of maternity leave for the birth of Callum Lamb and then Ellie Lamb, she continued working at CopRice and moved to Queensland in August 2007; (d) at the time of Mr Lamb's death, Fiona Lamb was in full-time employment as a contract sales manager with CopRice; (e) there were no prospects of promotion from that position; and (f) the work involved Fiona Lamb travelling throughout Queensland, and while she was away her husband and her mother would assist in getting the children to and from school and meeting their other needs.
[122]Fiona Lamb resigned from CopRice from 28 June 2013. Her letter of resignation, dated 17 May 2013 (Exhibit 5) was written approximately six months after her husband's death. The reasons for resignation given in that letter were that, since her husband's death:
(a) her children were not coping with her doing this type of work and found it extremely difficult when she went away; (b) she was not coping with driving long distances and customer visits; and (c) she had lost her enthusiasm.
[123]Those reasons and her statement in the letter that she "thoroughly enjoyed working for CopRice" suggest that, but for her husband's death, Fiona Lamb would have continued in employment there.
[124]Fiona Lamb was out of employment for about seven months and said she needed that period to spend time with her children and take care of a range of family and other matters, at least some of which were a result of Mr Lamb's death.
[125]At the time of the hearing, she was employed as a trade coordinator with Bartercard, based in an office in Brisbane and working regular hours, but with a reduction in income and flexibility when compared with her previous position at CopRice.
[126]In my opinion, had Mr Lamb not died in 2012, Fiona Lamb probably would have continued in employment with CopRice for at least some years, with no prospect of promotion. If that is correct, it might be that the proportion of her contribution to the household income would have declined over time. Her financial circumstances (as well as other important aspects of her and her family's life) changed significantly as a result of Mr Lamb's death.
Conclusion
[127]On the evidence in this case it is clear that each of Tyler, Callum and Ellie Lamb was dependent on the earnings of their father Mr Lamb at the time of his death. Mr Lamb was legally obliged to devote at least part of his earnings to the support of his dependent children and he did so. Indeed, the majority of the household income from which Callum and Ellie drew support was provided by Mr Lamb. He also provided a substantial proportion of the financial support given to Tyler.
[128]Given the analysis of s 200(1) set out earlier in these reasons, it is open to the Commission to find that the children were totally dependent on Mr Lamb's earnings at the time of his death if there is evidence to support such a finding.
[129]The evidence summarised above in relation to the two younger children falls well within the range of circumstances that other courts and tribunals have found to satisfy a finding that a dependant is wholly or totally dependent on a deceased parent.
[130]That is enough to deal with the issue in this case, i.e. that at least one of the worker's dependants was, at the time of the worker's death, totally dependent on the worker's earnings.
[131]The evidence in relation to Tyler is less clear. However, by reference to the decision in analogous cases, I consider that such a finding can also be made in relation to her.
[132]Accordingly, I am satisfied that, for the purpose of s 200(1) of the Act, Callum Walter Lamb, Ellie Lamb and Tyler Alice Lamb were, at the time of the death of their father William Lamb, totally dependent on Mr Lamb's earnings.
[133]A finding to the contrary would fly in the face of the trend of modern Australian judicial decisions in relation to the application of statutory provisions comparable to s 200 of the Act. Although those decisions are distinguishable from the facts of this case and the statutory provisions are not identical, the approach taken to the interpretation and application of similar legislation is clear. There is no compelling reason to chart a different course in Queensland.
[134]I note for completeness that because s 200 of the Act applies in the present case, s 201 cannot apply as it operates only if all of the worker's dependants were, at the time of the worker's death, partially dependent on the worker's earnings.
[135] The appeal is dismissed.
| [136] Order | accordingly. |
Potts v Niddrie and Benhar Coal Co Ltd [1913] AC 531.
Eg Aafjes v Kearney (1976) 180 CLR 199; Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177.
3
In Nicol v Chant (1909) 7 CLR 569, Griffith CJ stated "There is no word the primary meaning of which
may not be modified by the context" at 581.
4 th
| Macquarie Dictionary, (Macquarie Dictionary Publishers Pty Ltd, 5 | ed, 2009) 1739. |
| 5 | |
| Ibid 1217. | |
| 6 |
The Australian Concise Oxford Dictionary (Oxford University Press, 1987) 794.
7
Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177, 193.
8
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, [69].
Ibid [78].
10
Walker v Wilson (1991) 172 CLR 195.
11
Citing eg Brett Holt Plumbing Pty Ltd v Q-COMP (2005) 178 QGIG 255, where Hall P referred to the
provisions of the WorkCover Queensland Act 1996 (Qld) about statutory benefits as "plainly in the nature of
beneficial legislation" which "should be construed to give the fullest relief which a fair meaning of its
language will allow without straining or exceeding the true significance of the provision."
12 th
| See DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis, 7 | ed, 2011) [9.2], |
[9.3], [9.4] and [9.6] and cases cited.
13
Walker v Wilson (1991) 172 CLR 195, 199 citing Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR
328 at 335.
14
Walker v Wilson (1991) 172 CLR 195, 201.
15
Ibid 204.
16 th
| DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis, 7 | ed, 2011) [9.2]. |
17
I W Applicant v The City of Perth (1997) 191 CLR 1, 11 (Brennan CJ & McHugh J).
18 th
| DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis, 7 | ed, 2011) [9.2]. |
19
See eg Martina Limbach and Workers' Compensation Board of Queensland (C/1994/34) - decision
(Mackenzie J); David Henry Riley and Workcover Queensland (C/1997/23) -
decision (de Jersey J).
Marshall v Director General, Department of Transport (2001) 205 CLR 603.
21
Ibid 632-633, [62].
22
Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority (2008) 233 CLR 259, [31].
Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177.
24
Ibid 179.
25
Ibid.
Ibid 179.
27
Ibid 180.
28
Ibid 190.
29
Ibid 180.
Re Lambroglou and Commonwealth of Australia (1989) 19 ALD 33.
31
Ibid 36.
32
Fisher v Hebburn Limited (1960) 105 CLR 188.
Ibid.
34
Gers v Workers' Compensation Board of Queensland (1985) 119 QGIG 104, 105; [1985] WCR 418, 424-
5.
35
Campbell v Westcourt Coal Co (1911) 14 GLR 323.
36
Aafjes v Kearney (1976) 180 CLR 199.
37
Ibid.
38
Ibid 211.
39
Ibid 211.
Ibid.
41
Fisher v Hebburn Limited (1960) 105 CLR 188.
42
Aafjes v Kearney (1976) 180 CLR 199.
43
McCafferty's Management Pty Ltd v Pimlott [1995] 12 NSWCCR 360.
44 Although the decision in Fisher v Hebburn Limited still applies in Queensland, there are decisions that
adopt an expanded scope for the meaning of “earnings”. See WorkCover Queensland v Cook [2003] QIC
147; Narelle Patricia Fletcher v Q-COMP (WC/2010/24) - Decision at [76],
[78].
45
Fisher v Hebburn Limited (1960) 105 CLR 188.
46
Potts v Niddrie and Benhar Coal Company limited [1913] AC 531.
47
Ibid 537-538.
McCafferty's Management Pty Ltd v Pimlott [1995] 12 NSWCCR 360.
Holdlen Pty Ltd v Walsh [2000] NSWCA 87.
50
Ibid [50].
Gordon v T&S Jordan [2000] NSWCC 54.
52
Ibid [21].
Wills v Comcare [2001] AATA 973.
54
Ibid at [12].
So v So [2004] NSWCA 67.
56
Ibid [16].
57
Ibid [18].
Aafjes v Kearney (1976) 180 CLR 199.
59
Ibid 208.
60
Ibid 208.
61
Ibid 212.
[1995] 12 NSWCCR 360.
63
Aafjes v Kearney (1976) 180 CLR 199.
64
Ibid.
65
Aafjes v Kearney (1976) 180 CLR 199.
66
Holdlen Pty Ltd v Walsh [2000] NSWCA 87.
67
Ibid [51].
68
Ibid.
69
Ibid [48].
So v So [2004] NSWCA 67.
71
Ibid [15].
72
Ibid [16].
73
Ibid [16].
74
(2000) 19 NSWCCR 629.
75
So v So [2004] NSWCA 67, 32.
76
Ibid [17].
77
Ibid [32].
78
Gordon v T&S Jordan [2000] NSWCC 54.
79
McCafferty's Management Pty Ltd v Pimlott [1995] 12 NSWCCR 360.
80
Gordon v T&S Jordan [2000] NSWCC 54, [21].
81
Ibid [21], [25].
82
Ibid [21].
83
Wills v Comcare [2001] AATA 973.
Aafjes v Kearney (1976) 180 CLR 199.
McCafferty's Management Pty Ltd v Pimlott [1995] 12 NSWCCR 360.
86
Wills v Comcare [2001] AATA 973, [12].
87
See So v So [2004] NSWCA 67 at [16] (Santow JA), citing McCafferty's Management Pty Ltd v Pimlott
[1995] 12 NSWCCR 360.
88
Marshall v Director General, Department of Transport (2001) 205 CLR 603, 632-633, [62].
89
Aafjes v Kearney (1976) 180 CLR 199, 208.
90
So v So [2004] NSWCA 67, [19] and [20].
91
Aafjes v Kearney (1976) 180 CLR 199.
92
Ibid 206.
93
Ibid 207-208.
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