Wills and Comcare
[2001] AATA 973
•26 October 2001
DECISION AND REASONS FOR DECISION [2001] AATA 973
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2000/24
GENERAL ADMINISTRATIVE DIVISION )
Re JENNIFER WILLS
Applicant
And COMCARE
Respondent
DECISION
Tribunal Mr. D.W. Muller, Senior Member
Date26 October 2001
PlaceDarwin
Decision (1) The Tribunal sets aside the decision under review and in substitution determines that at the date of the death of her father, Joseph Wills, Jennifer Wills was a dependant who was wholly dependent on her father, within the meaning of those terms in section 17 of the Safety, Rehabilitation and Compensation Act 1988. (2) The matter is remitted to the respondent for assessment. (3) The respondent is to pay the costs of the applicant upon the terms set out in the General Practice Direction.
..............Signed................................
D.W. MULLER
SENIOR MEMBER
CATCHWORDS
WORKERS' COMPENSATION – dependant of deceased worker – wholly dependent – deemed wholly dependent – dependent but for incapacity
Safety, Rehabilitation and Compensation Act 1988: ss4(4), 4(5), 17(3)
Aafjes v Kearney (1975) 180 CLR 199
McCafferty's Management Pty Ltd v Pimlott (unreported Supreme Court NSW Court of Appeal 6 October 1995
Loizos v Carlton and United Breweries Ltd (1994) 94 NTR 31
REQUEST FOR WRITTEN REASONS FOR DECISION
Mr. D.W. Muller, Senior Member
This is an application to review a decision which determined that at the date of the death of the employee, Joseph Wills, who died from work-related injuries, his daughter, Jennifer Wills, was a dependant who was not wholly dependent on her father.
Section 17(3) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) provides for a lump sum payment to be made to dependants of employees who die as a result of their work related injuries, provided that the dependants were wholly dependent on the employee at the date of the employee's death.
The respondent contended that at the date of the death of Joseph Wills, his daughter, Jennifer Wills, was a student who was being supported partly by her father and partly by her mother, Juliet Wills. Hence, it was submitted that Jennifer Wills was not wholly dependent on her father at the date of her father's death.
The Tribunal heard evidence from the applicant, Jennifer Wills and from her mother, Juliet Wills. The Tribunal accepts both witnesses as honest and reliable.
The history of the matter is set out in the section 37 statement. There are no controversial matters in that material.
The Tribunal finds the facts and history of the matter to be as follows:
(i)Joseph Wills married Juliet Wills on 16 January 1982. At that time Joseph Wills was a man in his mid-40s and Juliet Wills was a young woman of about 20 years of age from the Philippines.
(ii)The applicant, Jennifer Wills, was born on 16 August 1982.
(iii)In the early years of the marriage the family was happy and stable. Juliet Wills' sister, Maria Laborte, lived with the family. They had a wide circle of friends in the Darwin area. Joseph Wills embraced his wife's family, culture and friends. He expressed the desire that should he die, he wanted to be buried in his wife's family plot in the Philippines.
(iv)On 8 October 1986, a most unfortunate incident occurred which changed the life of the Wills family forever. Joseph Wills was on duty as a traffic controller at Darwin airport. The management of the airport was putting on a promotion during which "Disney characters" were to be arriving at the airport. There were large numbers of small children at the airport. One of the small children wandered onto the roadway in front of the terminal, into the path of a motor vehicle. Joseph Wills dived in front of the car to save the child. Joseph Wills saved the child but the motor vehicle struck him on the head. He suffered a serious head injury from which he never recovered.
(v)Joseph Wills developed severe headaches. He had to take a large number of drugs to control the pain. He developed a psychiatric illness which was diagnosed as post-concussion syndrome. He became increasingly unpredictable and violent and was unable to control his emotions. He began to accuse his wife, quite wrongly, of infidelity. He began to hit his wife.
(vi)Joseph Wills did not want to give up his work. He fought hard to keep his job. However, he became so unpredictable at work that he was forced to cease work. He last worked on 27 November 1988 on which day he was admitted to hospital. He officially ceased work on 16 April 1989.
(vii)In 1986 Juliet Wills started work with the Northern Territory Public Service. She has worked for the Public Service ever since. From that date on, Juliet Wills contributed to the family income. Taking into account Joseph's income and Juliet's income, the split up of the contribution to the family finances was 60% from Joseph and 40% from Juliet since 1986.
(viii)The violence and unpredictability of Joseph Wills continued into the 90's and by 1995 it had become so serious that Juliet took Jennifer, the applicant, and Maria, Juliet's sister, away from Joseph. They went to live for a time in a women's refuge in Darwin. Juliet took proceedings in court to direct that Joseph was to have no contact with her.
(ix)There were attempts at reconciliation over the next two years but in 1997 the family split up permanently. Joseph went to live in a one bedroom flat and Juliet and her daughter and her sister, went to live in another flat. The parents of the applicant were divorced in 1999.
(x)Juliet never remarried or had boyfriends and Joseph never remarried or had a girlfriend since the breakup of their marriage. Although they lived in two different locations they still regarded themselves as being married to each other. Joseph used to go to the local shopping centre at times when he expected Juliet to be there, to catch a glimpse of her. Maria used to go to Joseph's flat to help him with household chores. Wedding photos and other personal items of the other spouse were on display at both residences. At all times Juliet regarded herself as Joseph's wife. The family understood that Joseph was ill and that it was not his fault.
(xi)Soon after the family split up, Jennifer made contact with her father and developed a very strong relationship with him. Well before his death, Jennifer would stay for two to three days per week with her father. She would spend the other time with her mother. Jennifer's base was at her mother's unit, but she had clothing and personal effects at her father's flat. When she stayed with her father she went to school from her father's flat. When she stayed with her mother she went directly from there to school. She lived with her father for about 35% of the time and with her mother for about the remaining 65%. On the day her father died, Jennifer was at her mother's unit.
(xii)Joseph paid quite considerable sums of money to his daughter for her maintenance. He used to regularly give his daughter $150 to $200 per fortnight in cash. She then passed on most of it to her mother, retaining some for herself. Joseph paid for her clothes, school fees and club subscriptions. Jennifer played tennis fixtures and netball fixtures and her father paid for the associated expenses. Jennifer's mother also paid for her maintenance. On the figures available to the Tribunal the financial contributions of 60% support from Joseph and 40% support from Juliet, for Jennifer, continued after the family split up.
(xiii)At all times relevant to this review, Jennifer has been a full time student. At the date of her father's death Jennifer was in Grade 12. She is now a university student. She has not earned any money of her own. She has never been employed.
(xiv)Jennifer had a number of discussions with her father about her future. He was very keen for her to go to University. He said that if she continued on to University he would pay for her accommodation, tuition and books.
(xv)Joseph's health began to deteriorate rapidly in the first half of 1999 and he died between 8 and 11 June 1999, at his flat.
(xvi)When Joseph died, Juliet took out a personal loan of $10,000 to have Joseph taken to the Philippines for burial in her parent's family plot. Juliet is still paying off this loan and $6,000 is yet to be repaid.
The Tribunal is in no doubt that had Joseph not received the unfortunate blow to his head in 1986, the family would have continued to live together as a happy family.
The question for determination by the Tribunal is whether or not at the date of Joseph's death, Jennifer was wholly dependent on him, simpliciter, within the meaning of that term in s.17(3) of the Act, or alternatively, deemed to be wholly dependent on him pursuant to the provisions of s.4(5) of the Act, or, in the further alternative, deemed to be wholly dependent on him pursuant to either s.4(4) or a combination of s.4(4) and s.4(5) of the Act. The relevant parts of those sub-sections of the Act provide as follows:
"4(4) [Dependent but for incapacity] For the purposes of this Act, a person shall be taken to have been wholly or partly dependent on an employee at the date of the employee's death if the person would have been so dependent but for an incapacity of the employee that resulted from an injury.
4(5) [Deemed wholly dependent] For the purposes of this Act, a person who, immediately before the date of an employee's death, lived with the employee and was:
(a) …..
(b) a child of the employee, being a prescribed child;
shall be taken to be a person who was wholly dependent on the employee at that date.
17(3) [Dependants wholly dependent] Subject to this section and to sections 16 and 18, if the employee dies leaving dependants some or all of whom were, at the date of the employee's death, wholly dependent on the employee, Comcare is liable to pay compensation in respect of the injury of ($x) and that compensation is payable to, or in accordance with the directions of, Comcare for the benefit of all of those dependants."
It is common ground that Jennifer was a "prescribed child" for the purposes of sub-section 4(5) of the Act.
Section 4(1) of the Act defines "dependant" to include the daughter of a deceased employee, and "dependent" as being "dependent for economic support". There is no doubt that at the date of Joseph's death, Jennifer was a dependant of Joseph and was dependent on him for economic support.
It is also common ground that Jennifer was "wholly or mainly" dependent on her father at the date of his injury in 1986.
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 that she was wholly dependent on her father for economic support. In Aafjes v Kearney (1975) 180 CLR 199, Gibbs J at 207 said:
"At the date of 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 upon 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."
In McCafferty's Management Pty Ltd v Pimlott (unreported, Supreme Court of New South Wales Court of Appeal, 6 October 1995), Clarke JA said:
"The respondent's daughter, Amanda, lived with her mother and father. They each worked and pooled their resources in order to meet the family expenses. If his Honour's conclusion is correct it may well be that Amanda was wholly dependent on each of her parents. I do not find that a startling proposition but in the circumstances of this case it is not necessary to reach a conclusion on the point."
The Tribunal's view that Jennifer was wholly dependent on her father, irrespective of the fact that she also received support from her mother, is further reinforced by reference to the provisions of s.4(5) of the Act. That section deems a child of a deceased employee to be a person who was wholly dependent on the employee if the child lived with the employee immediately before the date of the employee's death. No account is taken of the possibility that the surviving parent may have been making a substantial contribution to the support of the child.
The Tribunal also finds that Jennifer was living with her father immediately before the date of his death. She was also living with her mother. She had two homes and she oscillated between them.
The fact that Jennifer was at her mother's flat on the day her father died does not mean that she was not living with her father immediately before the date of his death. The term "immediately before" does not mean the precise moment of death in the context of this case. The meaning to be given to the words "immediately before" was reviewed in some depth by the Supreme Court of the Northern Territory Court of Appeal in Loizos v Carlton and United Breweries Ltd (1994) 94 NTR 31. I adopt what Kearney J said, at page 35.
"The foregoing cases illustrate the different meanings in different contexts. The question is, what is the meaning of the words "immediately before" in their context in s 65(3)? I consider that in s 65(3) they encompass at most some reasonably short period of time immediately preceding "the date on which he first became entitled to compensation". As noted earlier, since 1986 the appellant had been unemployed and during the period to March 1989 had no weekly earnings. Accordingly, he had no "normal weekly earnings" at the very instant before 23 March 1989. But if the words "immediately before" in s 65(3) are given a more flexible construction, as I believe they should, do they embrace any period in 1986 when he was last employed? I think the answer is best expressed by adopting the approach of Blackburn J in Hobbs v London and South Western Railway Co (1875) LR 10 QB 111 at 121:
….. it is something like having to draw a line between night and day; there is a great duration of twilight when it is neither night nor day; but… though you cannot draw the precise line, you can say on which side of the line the case is...
I consider that wherever the precise line limiting the period encompassed by "immediately before" in s 65(3) is to be drawn, giving those words a flexible construction, the appellant is well outside that line on the facts of this case; this applies to any earnings in 1986, or before that time. I consider that this was also the view taken by Martin J."
Consequently, the Tribunal finds that even if Jennifer was not wholly dependent on her father at the date of his death in fact, she is deemed to have been.
There is the further question of the deeming provision, s.4(4). It raises the hypothetical case of the probable domestic arrangements which would have continued had the injury and consequential incapacity not occurred. It is the Tribunal's finding, as set out above, that if Joseph Wills had not been injured the family would have remained together. Jennifer would have been wholly dependent on her father both in fact and/or deemed to be so by s.4(5) of the Act.
The decision under review is set aside and in substitution the Tribunal determines that at the date of the death of her father, Joseph Wills, Jennifer Wills was a dependant who was wholly dependent on her father.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D. W. Muller, Senior Member.
Signed: .....................................................................................
B. Hitchcock, SecretaryDate/s of Hearing 26 October 2001
Date of Decision 26 October 2001
Written reasons 29 November 2001
Counsel for the Applicant Mr. McDonald, QC and
Mrs. R. Webb
Solicitor for the Applicant Ward Keller
Counsel for the Respondent Mr. C. Clark
Solicitor for the Respondent Blake Dawson Waldron
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