John Joseph Rooney v Ann Selina Summerell; Gary Michael Summerell and Nicole Ann Summerell By Their Next Friend and Mother Ann Selina Summerell [1986] ACTSC 5 (20 February 1986)

SUPREME COURT OF THE ACT

JOHN JOSEPH ROONEY v. ANN SELINA SUMMERELL; GARY MICHAEL SUMMERELL and NICOLE
ANN SUMMERELL by their next friend and mother ANN SELINA SUMMERELL
S.C. No. 1338 of 1984
Worker's Compensation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Worker's Compensation - Death of workman "in course of his employment" - Claim by widow and children - Whether and to what extent dependants - Findings of fact by arbitrator - Whether such findings may be departed from - Workmen's Compensation Ordinance 1951 (A.C.T.) First Schedule, para.1. - Meaning of "dependants".

New Monckton Collieries Ltd. v. Keeling (1911) AC 648.

Potts v. Niddrie and Benhar Coal Company, Limited [1891] UKHL 1; (1913) AC 531.

Jeffrey v. The Commissioner for Government Transport (1957) SR (N.S.W.) 634.

A.C.T. Engineering Pty. Ltd. v. Cuckow (1973) 1 ACTR 93.

Aafjes v. Kearney (1976) 8 ALR 455.

SS Hontestroom v. SS Sagaporack (1927) AC 37.

HEARING

CANBERRA
20:2:1986

ORDER

The appeal be dismissed except to the extent hereinafter indicated.

The cross-appeal be allowed.

The award made by the learned Magistrate be varied:-

(a) by setting aside the following paragraphs and
sub-paragraphs thereof:-

"4. THAT GARY MICHAEL SUMMERELL and NICOLE
ANN SUMMERELL were dependants of the deceased
mainly dependent upon his earnings at the
date of death.

5. THAT the sum which is reasonable and
proportionate to the loss to the applicant
(scil. ANN SELINA SUMMERELL) resulting from
the cessation of the earnings of the deceased
is not less than $45,310.00.

6. That the sum which is reasonable and
proportionate to the loss of each of the said
GARY MICHAEL SUMMERELL and NICOLE ANN
SUMMERELL respectively resulting from the
cessation of the earnings of the deceased is:

(a) as to the child, NICOLE ANN SUMMERELL,
not less than $3,000 together with a
weekly payment equal to that provided
for in paragraph 1(a)(i) of the First
Schedule to the Ordinance since the date
of death and continuing.

(b) as to the child, GARY MICHAEL SUMMERELL,
not less than $2,000 together with a
weekly payment equal to that provided
for in paragraph 1(a)(i) of the First
Schedule to the Ordinance since the date
of death and continuing."

7. (iii) THAT the said sum of fifty
thousand three hundred and ten dollars
($50,310.00) be apportioned between the
said ANN SELINA SUMMERELL, GARY MICHAEL
SUMMERELL and NICOLE ANN SUMMERELL in
the proportions following, that is to
say:-

(a) the sum of forty five thousand
three hundred and ten dollars
($45,310.00) to or for the benefit
of the said ANN SELINA SUMMERELL,
and

(b) the sum of two thousand (dollars)
($2,000.00) to or for the benefit
of the said GARY MICHAEL SUMMERELL,
and

(c) the sum of three thousand dollars
($3,000.00) to or for the benefit
of the said NICOLE ANN SUMMERELL.

(v) THAT on payment to the Clerk of the
Court of the said sum of fifty thousand
three hundred and ten dollars
($50,310.00) the Clerk do forthwith pay
to the said ANN SELINA SUMMERELL the sum
of forty five thousand three hundred
(and ten) dollars ($45,310.00) hereby
apportioned to her, and that the balance
invested by the Clerk in the name of
GARY MICHAEL SUMMERELL in the sum of two
thousand dollars ($2,000.00) and in the
name of NICOLE ANN SUMMERELL in the sum
of three thousand dollars ($3,000.00),
for the benefit of the said GARY MICHAEL
SUMMERELL and NICOLE ANN SUMMERELL.

(VI) THAT the said ANN SELINA SUMMERELL,
GARY MICHAEL SUMMERELL and NICOLE ANN
SUMMERELL or any of them be at liberty
to apply to the court from time to time
as they may be advised for any further
or other order as to the application of
any of the said sums so ordered to be
invested and the accruing interest
thereof."

(b) (i) By adding to the end of sub-paragraph
7(ii)(b) thereof the words, ", born 12
October 1971" and

(ii) By adding to the end of sub-paragraph
7(ii)(c) thereof the words, ", born 15
October 1975".

(c) By substituting for paragraph 4 therof the
following:-

"4. THAT GARY MICHAEL SUMMERELL and NICOLE
ANN SUMMERELL were dependants of the deceased
wholly dependent upon his earnings at the
date of death."

The matter be remitted to the learned Magistrate for further consideration

of the method of dealing with the amount ordered to be paid as compensation to the respondents.

The appellant pay the respondents' costs of and incidental to the appeal and cross-appeal, those costs to be taxed.

DECISION

By their application for arbitration under the Workmen's Compensation Ordinance 1951 (the Ordinance) Ann Selina Summerell and her children, Gary Michael Summerell and Nicole Ann Summerell, sought compensation in respect of the death of their husband and father, Barry Michael Summerell. He died on 28 December 1983 following injuries sustained in a fall the day before during the course of his employment by the appellant as a casual garbage runner. By his award handed down on 4 December 1984, Mr W.K. Nicholl SM (as he then was), after making appropriate findings concerning the matters just referred to, found the respondent widow in part dependent and the respondent children mainly dependent upon the deceased's earnings at the date of his death.

2. He further found that the sums which were reasonable and proportionate to the losses sustained by the respondents were respectively -

(a) as to the respondent widow - not less than
$45,310;

(b) as to the child Nicole Ann Summerell - not
less than $3,000 together with a weekly
payment equal to that provided for in
paragraph 1(a)(i) of the First Schedule to
the Ordinance since the date of death and
continuing; and

(c) as to the child Gary Michael Summerell - not
less than $2,000 together with a weekly
payment equal to that provided for in
paragraph 1(a)(i) of the First Schedule to
the Ordinance since the date of death and
continuing.

3. The child Gary Michael was born on 12 October 1971, the child Nicole Ann on 15 October 1975.

4. The appellant was called on behalf of the respondents to give evidence before the learned Magistrate. He identified himself and was asked "Did you employ Barry Michael Summerell as a casual employee?" He replied, "Yes". He was then asked whether the deceased was injured while acting in the course of his employment with him and agreed that when he fell and hit his head on 27 December 1983 he was. He learned subsequently of Summerell's death. He gave no more evidence in chief and was not cross-examined.

5. Mrs Summerell gave evidence. She said that she and the deceased were married on 17 April 1971 and that they lived together until 1980 when they separated for a time. That the separation took place because of the deceased's drinking habits is plain from the evidence. He attended, she said, the Woden Valley Drug Rehabilitation Centre about his drinking. She said that he effectively dried out and resumed living with the family. However about the middle of October 1983 he left the home, again because of his drinking. When he left in October 1983 he was not working but was in receipt of unemployment benefits.

6. From time to time after he left he used give money to his wife out of his unemployment benefit. She put the figure at $20 when he could afford it. She said he paid that amount, not every fortnight, but most fortnights. He was receiving unemployment benefit as a single man. She was then asked the following questions and gave the answers set out:-

"Did you intend, when he left, that it would
be a permanent separation, or not? --- At no
time did I intend to end my marriage with my
husband.

Did he and you discuss that after you had
parted? --- He asked me if I wanted a divorce
and I said, no, I did not, you know, he would
have to go back to AA and dry out.

Did he say he would do that? --- Yes, he said
he was going back to AA.

Did he say anything else about - well, what
did you say when he said that? --- I said,
'That would be good if you could do that'.

Was anything then said about the future? ---
We just assumed, I think, that if he went
back to AA - well we knew that if he went
back to AA that we would reconciliate.

Did he say anything about the family when he
said that? --- He wanted to win us back.

Is that what he said? --- Yes.

Were you willing for that to occur? --- Yes.

In addition to that, whilst he was not living
with you, did he come and see the children
regularly? --- Yes.

Did he do things like mowing the lawns? --- He
maintained the house outside, he mowed the
lawns and anything that needed doing.

He continued to do that sort of thing? ---
Yes.

Did he tell you shortly before his death that
he had a job? --- Yes, he did.

Did you then say anything about the
maintenance? --- I said, 'If you are working,
I need maintenance, because it is not fair,
if you are working ---'

He could contribute more? --- Yes, that I
would put in a maintenance claim.

You did not actually go to the extent of
putting in a maintenance claim? --- No,
because it was just before Christmas and I
thought it would be better to wait until
after Christmas, after the holiday.

Were your children - did your children have
any source of income other than him? --- Only
that I worked part-time.

How much were you earning part-time? --- At
that time, $70 a week and also I was getting
a widow's pension.

At the time of his death you were getting? ---
A supporting parent's pension at the time of
his death.

How much was that? --- $190 a fortnight."

(By "AA" I understood her to have meant

"Alcoholics Anonymous".)

7. During cross-examination Mrs Summerell agreed that before her husband had left the home in 1980 she was working at K-Mart. She worked then on Friday nights only but in December 1983 used work on Friday nights and Saturday mornings save that for the three weeks before Christmas of that year she worked all day each Saturday. During those three weeks she earned about $100 per week but after that her wages reverted to the normal $70 per week. She did not actually work during the weekend before her husband's death because she took that particular weekend off to have a holiday in Sydney. She received child endowment of $55 a month for the two children. She thought that she had received the last payment of $20 from her husband about a week or so before Christmas and the previous payment of $20 about a fortnight before. She said that he paid that sum most fortnights. Her husband mowed the lawns and trimmed trees and apparently did other things in the garden on a fairly regular basis. She said that she had noticed that at the time of his death her husband was drinking less and she could see that he was trying to cut it down, that he was drinking but she would not say heavily. In re-examination she said the first separation lasted less than six months and there was no further separation until October 1983.

8. The only other evidence to which my attention was directed was that contained in a written statement made by Paul Simon Burke and tendered on behalf of the respondents. In part that statement read:-

"I have known Barry Michael Summerell for
about 10 years. I knew him as 'Blackie'.
During all the time I have known him he has
been a very heavy drinker and he started to
drink more when his wife left him about four
or five months ago. He would normally drink
anything he could get his hands on.

On 27 December, I went to 29 Hutchens Close,
Melba to pick up Blackie and take him to
work. That was just 5 a.m. when I went to
Blackie's flat, he was in the toilet
vomiting. I then went to the car and waited
for Blackie to come down, which he did after
about 5 minutes. We then went to Mitchell to
start work. We were dropped off at Mitchell
by my fiancee . . . . Blackie was a bit quiet
and he said that he hadn't gotten to bed till
2 a.m. and had been drinking for all of the
day before."

9. Although no evidence was given concerning the ages of the deceased and his widow the matter was raised by the learned Magistrate who asked whether there was any evidence on the subject. It was pointed out to him that he had seen the widow and it was agreed by counsel for the appellant that the deceased was born on 23 February 1950. It seems clear that in asking the question his Worship had in mind the possibility that he might find the respondents partly dependent upon the earnings of the deceased and be required, therefore, to establish an amount proportionate to their loss in much the same manner as in a claim under the Compensation (Fatal Injuries) Ordinance 1968.

10. In his reasons for determination the learned Magistrate said:-

". . . although the parties had separated a
couple of months before Mr Summerell died,
nevertheless, I am satisfied on the evidence
that he was endeavouring to cure himself of
his alcohol problem and that the wife had
never thought in terms of divorce and looked
to him for her dependence although
temporarily she was maintaining herself by
her part-time job with the benefit of a
pension from the Department of Social
Security and I think that is sufficient to
indicate the way in which I have reached the
decision that I have."

11. "Dependant", in relation to a deceased workman, is relevantly defined in s.6(1) of the Ordinance as a member of the family of the workman who is wholly or in part dependent upon his earnings at the date of his death or who would, but for his incapacity due to the injury, have been so dependent.

12. Where the death of a workman results from an injury sustained by him and arising out of or in the course of his employment the amount of compensation payable to his dependants is to be ascertained by reference to paragraph 1 of the First Schedule to the Ordinance, the relevant part of which provides:

"(a)(i) if the workman leaves any dependants
wholly dependent upon his earnings - the sum
of dollars and, in addition, in respect of
each child under the age of sixteen years at
the date of the death of the workman who was,
at the date of the injury or the date of the
death of the workman, wholly or mainly
dependent upon the earnings of the workman, a
weekly payment, from the date of the death,
of an amount equal to the amount specified in
clause (ii) of the next succeeding
sub-paragraph;

(ii) if the workman does not leave any
dependants wholly dependent upon his
earnings, but leaves dependants in part
dependent upon his earnings - such sum, not
exceeding in any case the amount payable
under clause (i) of this sub-paragraph as is
reasonable and proportionate to the loss to
the dependants resulting from the cessation
of the earnings of the workman;

(b)(ii) dollars in respect of each child,
. . . who . . . is under the age of sixteen years
and wholly or mainly dependent upon the
earnings of the workman;"

13. (I have left blank the actual amounts payable because they are subject to frequent variation: s.12A of the Ordinance. There was, however, evidence before the learned Magistrate that as at 28 December 1983 the sum referred to in clauses (a)(i) and (ii) above was $50,310.08 and the amount of the weekly payment for each infant respondent referred to in clause (b)(ii) was $17.61.)

14. The appellant appeals against the award made by the learned Magistrate on the ground that he was in error in finding that Mrs Summerell was partly dependent upon the deceased at the date of his death and that the children were mainly dependent upon him at that date. An alternative ground of appeal was that the learned Magistrate erred in awarding the amounts of compensation which he did in respect of the partial dependency. In the events that happened the respondents cross-appealed by notice of contention alleging that the learned Magistrate should have found the infant respondents wholly dependent on the earnings of the deceased at the material times.

15. A finding of dependency is a finding of fact. If there is no evidence to support the finding there will be an error of law as there will be if the learned Magistrate acted upon a view of the facts which could not reasonably be entertained or if the facts found are such as could not have been found by a person acting judicially and properly instructed as to the relevant law. Aafjes v. Kearney (1976) 8 ALR 455 at p 460 per Gibbs J (as he then was) and at p 463 per Mason J with whom Stephen J concurred. See Potts v. Niddrie and Benhar Coal Company, Limited [1891] UKHL 1; (1913) AC 531 at pp 542-3, per Lord Moulton. What is required is that there be some evidence upon which the finding can legally rest; Hodges v. Scott's Provision Stores Pty. Ltd. (1964) NSWR 887 at p 890 per Sugerman J (as he then was).

16. The meaning of the phrase "dependent upon his earnings" has been authoritatively considered many times. Street CJ, with whom Owen J and Roper CJ in Eg. concurred, considered it in Jeffrey v. The Commissioner for Government Transport (1957) SR(NSW) 634. At pp 636-7 he said:-

". . . his Honour directed judgment for the
defendant on the ground that 'the
interpretation of the section is to be
decided by ascertaining who at the actual
time of the death of the father was
maintaining the child, who would then be
dependent on that person who was maintaining
her'. His Honour then continued:

'In this case at the time of the husband's
death the child in fact was being maintained
by the mother, and in my view on the strict
interpretation of the section the child was
dependent on the mother for its support, and
not on its father'.

I think that that is a wrong statement of the
law. The matter has been dealt with in
numerous authorities, and in New Monckton
Collieries Ltd. v. Keeling ((1911) AC 648)
it was expressly dealt with by the House of
Lords. Dealing with this question of
dependency, Lord Atkinson said:

'It by no means follows, however, that though
there is no presumption of law that a wife is
dependent upon her husband's earnings merely
because of his legal obligation to maintain
her, this legal obligation is to be ignored
in deciding on the fact of her dependency.
On the contrary, the existence of the
obligation, the probability that it will be
discharged, either voluntarily or under
compulsion, the probability that the wife
will ever enforce her right if the obligation
be not discharged voluntarily, are all
matters proper to be considered by the
arbitrator in determining the question of
fact whether, or not, the wife, at the time
of her husband's injury, looked to his
earnings for her maintenance and support in
whole or in part. It is one of the many
elements to be taken into account.' ((1911)
AC, at p 653.)

Again, Lord Robson said - dealing, of course,
with the problem of the arbitrator under the
Workmen's Compensation Act in England:

'All he has to do is to find whether or not
there is, in fact, dependence on the husband
in whole or in part at the time of his
death. That single question of fact is all
that concerns him, though the circumstances
to be considered in arriving at the answer
may be of infinite variety. The wife does
not necessarily cease to be dependent on the
husband simply because the latter refuses to
recognize or perform his obligation and
succeeds in throwing the burden of her
maintenance for the time being on the wife's
parents or friends, or on the State. They
may fulfil the husband's duty for him, but
the wife's legal dependence is still on him
and not on them, and his death deprives her
of the proper stay and support on which she
alone is entitled to rely.' ((1911) AC, at
p 662.)

That decision was considered and explained
again by the House of Lords in Potts v.
Niddrie and Benhar Coal Co. Ltd. ((1913)
AC 531). Lord Shaw of Dunfermline said -
dealing, of course, with the special facts in
issue in that case:

'With regard to the facts of a case of
desertion, or refusal or omission to support
dependants, these facts may be within a wide
range. On the one hand, there may be a
temporary absence of a husband or a father,
with the expectancy of immediate aid on the
part of those left behind. That is the one
extreme. On the other hand, there may be a
long absence entirely acquiesced in, and
those left behind may live a separate and
completely independent life, having no
reliance whatsoever either upon support
actually obtained or possible through the
agency of the law. Between those two
extremes there are many gradations, leaving
room for the arbitrator to pronounce upon
dependency - whether it is total or partial,
or whether it exists.' ((1913) AC, at
p 541.)

The law is clear that the question is one of
fact, as the section so states expressly.
Past happenings and future probabilities are
all involved, and there was in the present
case, it seems to me, ample, if not
overwhelming, evidence to go to the jury of a
dependence in fact of the plaintiff upon the
deceased officer. It is not for this Court
to find the facts, but to my mind, applying
the proper principles of law, it is clear
that there was evidence to go to the jury,
and clear also that his Honour was in error
in his view as to the law when he stated his
grounds for directing the jury to find a
verdict for the defendant."

17. I refer also to Coulthard v. Consett Iron Company, Limited (1905) 2 KB 869 at pp 874-6 and note particularly the reference by Collins MR at p 875 to Cunningham v. McGregor & Co. (3 F.775).

18. If there was evidence upon which the learned Magistrate might properly have reached his conclusions on the respondents' dependence it matters nothing that another tribunal might on the same evidence have come to a different conclusion. His finding is conclusive unless there was no evidence to support it or it was vitiated by some error of law; Aafjes v. Kearney (supra) at p 463. If questions of credibility were involved the learned Magistrate had the advantage of seeing and hearing the respondent widow give evidence. That advantage is denied this Court and the consequences of that denial are well established. See, for example, SS Hontestroom v. SS Sagaporack (1927) AC 37 at pp 47-8 per Lord Sumner.

19. Since it appears that the learned Magistrate accepted Mrs Summerell as a witness of truth it follows that this Court should accept her evidence as truthful, there being nothing inherently improbable about its essential elements.

20. These I take to be -

(a) that she saw the marriage as continuing and

(b) that she proposed to make a claim for maintenance.

The last element plainly includes reference to maintenance for the children. I disregard as inessential the possibility that the deceased was about to reform his drinking habits. With due deference to the learned Magistrate's finding, I do not think the evidence could possibly support the finding he made on this aspect. It ignores ordinary experience, but, more than that, it ignores Mr Burke's statement put forward on behalf of the respondents as part of their case in favour of Mrs Summerell's vaguely expressed opinion, at best a pious hope.

21. The evidence was that Mrs Summerell had evinced an intention to seek maintenance from her husband, deferring action temporarily having regard to the season. That evidence, accepted as it was, was evidence enough on which the finding of dependency might rest. The fact that she was in receipt of a supporting parent's benefit may be taken as equivalent to the charity afforded a deserted wife by relatives or, as in her case, by the State. New Monckton Collieries Pty. Ltd. v. Keeling (1911) AC 648 at p 662 per Lord Robson.

22. Counsel for the appellant submitted that because the money which the deceased provided towards the family in the last months of his life came from unemployment benefit, it could not be said to come from his earnings. In support of that submission he referred to Fisher v. Hebburn Ltd. [1960] HCA 80; (1960) 105 CLR 188. There the High Court held that a pension under the Coal and Oil Shale Mine Workers (Superannuation) Act 1941 (N.S.W.), the sole source of income of a superannuated worker who subsequently became totally incapacitated for work from a compensable industrial disease, was not earnings of the worker. It could not therefore be said that his wife was dependent on his earnings. See also State Coal Mine Control Authority v. Rogers (1964-5) NSWR 2.

23. In my opinion the facts of the present case are distinguishable from those considered by the High Court in Fisher v. Hebburn Ltd. There the sole source of income and the only possible source of income of the worker concerned was his pension. In this case the deceased, although in receipt of unemployment benefit, was also capable of earning wages and was in fact engaged in employment, presumably for wages, although the evidence is silent as to this, when he received his fatal injury. It was to his earnings that the respondents looked for their maintenance, not to his unemployment benefit.

24. The finding that Mrs Summerell was in part dependent upon the earnings of the deceased cannot, therefore, be disturbed nor can the learned Magistrate's findings that the infant respondents were also dependent upon his earnings.

25. The question raised by the cross-appeal, whether the children were wholly or mainly dependent upon their father's earnings, falls next to be decided.

26. Normally Mrs Summerell was in receipt of earnings of $70 per week. Ordinary experience shows and I think it notorious that that sum would not have provided reasonably adequate support for a woman, be her needs ever so modest, in December 1983. To provide for her maintenance and that of her two children she received a total income of between $177.50 and no more, it would appear, than $185.50 per week made up of wages of $70 from K-Mart, supporting parent's benefit of $95 per week, child endowment of about $12.50 per week and a contribution from her husband of about $10 a week for most fortnights from his unemployment benefit, a contribution which I quantify at no more than $8 per week.

27. In my opinion, the amount of what was called "child endowment" in the evidence should be disregarded. Paragraph 3 of the First Schedule to the Ordinance says:-

"The amount of child endowment paid under
Part VI of the Social Services Consolidation
Act 1947-1950 in respect of a child shall be
disregarded in ascertaining, for the purposes
of this Schedule, whether or not that child
is or was dependent upon the earnings of the
workman."

28. By s.5 of the Social Services Legislation Amendment Act 1982 the Social Services Consolidation Act 1947-1950 eventually became the Social Security Act 1947 and the expression "child endowment" was deleted from Part VI of that Act to be replaced by the expression "family allowance". Despite the changes in nomenclature I think the allowance paid in respect of children remained in substance the same and that the amendments to the Social Services Consolidation Act 1947-1950 did not effect an implied repeal of paragraph 3 of the First Schedule to the Ordinance. It follows that moneys paid in respect of the infant respondents as family allowance, still popularly known as "child endowment", as the evidence shows, are to be disregarded in ascertaining whether or not those infants were dependent upon the earnings of the deceased. It does not matter that in the absence of enough actual contribution to their maintenance by the deceased the State had intervened and paid a benefit for it. New Monckton Collieries Ltd. v. Keeling (1911) AC 648 at p 662 per Lord Robson.

29. It follows from what I have said that of the amounts available in fact for the maintenance of the children and their mother, $70 (the widow's earnings) would have been used for her partial maintenance, the supporting parent's benefit is to be ignored as is the contribution of the State which left untouched the deceased's legal obligation and the "child endowment" or family allowance is to be disregarded. The remainder, some $8 per week, was the deceased's contribution as her husband to his wife's maintenance or as their father to his children's. In any event, the children's right to maintenance from their father is not lightly to be waived or ignored. See, for example, Chalmers v. Chalmers (1964-5) NSWR 1674.

30. In my view, the finding that the infant respondents were mainly dependent upon the deceased's earnings was wrong and there should be substituted for it a finding that they were wholly dependent on those earnings at the date of his death.

31. In reaching this conclusion I appreciate that I am differing from a finding of fact made by the learned Magistrate, a finding not normally to be differed from by an appellate court but I do it the more readily because there is no basis shown on the evidence given for the Magistrate's finding and he gave no reasons to show how he arrived at it.

32. On the conclusion I have reached the provisions of clause 1(a)(i) of the First Schedule to the Ordinance come into play and a lump sum of $50,310 is payable as compensation to the dependants of the deceased together with the appropriate weekly sums payable to each of the children while he or she is under the age of 16 years.

33. It becomes unnecessary, therefore, to attempt to assess the amounts reasonable and proportionate to the loss sustained by the deceased's dependants on the basis that they were only in part dependent upon him. I need, therefore, say nothing further as to the adequacy of the evidence, even supported by the use which the learned Magistrate no doubt made of sub-paragraph 6A(b) of the Fourth Schedule to the Ordinance, upon which he made his findings as to those losses.

34. The amount payable is one of strict statutory entitlement calculated not by reference to losses sustained but by reference to that entitlement. As the Full Court of this Court (Blackburn, Fox and Connor JJ) said in a slightly different context in ACT. Engineering Pty. Ltd. v. Cuckow (1973) 1 ACTR 93 at p 97:-

" . . . it has long been accepted in relation to
workmen's compensation legislation
sufficiently in pari materia with the
present, that the process of quantification
is an independent one which is not governed
by the situation of the particular applicant
. . . "

35. In the result I propose to set aside that part of the learned Magistrate's award set out in paragraphs 4, 5 and 6 and sub-paragraphs 7(iii), 7(v) and 7(vi).

36. I propose to set aside the orders concerning apportionment, payment out and investment so that the learned Magistrate may have the opportunity to consider what orders he should make in these respects having regard to the outcome of the appeal and cross-appeal. In apportioning the total amount to the benefit of the several respondents he seems to have considered himself bound by the findings he made as to losses sustained. Having regard to the philosophy upon which the Ordinance is founded and which is discussed to some extent in ACT. Engineering Pty. Ltd. v. Cuckow (supra), he may come to a different conclusion as to whether the apportionment made is appropriate or even necessary. There has now to be taken into account, too, the making of the Public Trustee Ordinance 1985 and in particular its s.25(3).

37. I emphasise that these are matters for him but it seems to me to be better that they should be dealt with by him rather than by this Court which in matters of machinery ought as a general rule to defer to the experience of those Magistrates who constantly sit in exercise of jurisdiction under the Ordinance.

38. In substance, therefore, the appeal is dismissed and the cross-appeal allowed. The appellant should pay the respondent's costs of and incidental to it.