Francis John Kelly T/As Clean Sweep Services v Shane John Smith By His Next Friend Pamela Joan Smith [1989] ACTSC 48 (6 October 1989)

SUPREME COURT OF THE ACT

FRANCIS JOHN KELLY T/AS CLEAN SWEEP SERVICES v. SHANE JOHN SMITH
by his next friend PAMELA JOAN SMITH
No. S.C.A. 87 of 1988
Workmen's Compensation

COURT

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

CATCHWORDS

Workmen's Compensation - Workman killed by accident arising out of and in the course of employment - Widow and son not yet aged 16 surviving - Application by son for compensation - Widow electing not to apply for compensation but claiming damages under Compensation (Fatal Injuries) Act 1969 - Widow joined as respondent by consent - Whether son wholly dependant on father's earnings - Whether widow ought to have been found a dependant under Workermen's Compensation Act 1951 - Words and Phrases - meaning of "wholly dependant" considered.

Workmen's Compensation Act 1951 - ss.22 and 23; Schedule 1, sub-para 1(a)(i)

Aafjes v. Kearney (1976) 8 ALR 455

ACT Engineering Pty Ltd v. Cuckow (1973) 1 ACTR 93

HEARING

CANBERRA
6:10:1989

Counsel for the Appellant: Mr M. Ingliss
Solicitors for the Appellant: Messrs Macphillamy Cummins & Gibson

Counsel for the Respondent: Mr R. Williams
Solicitors for the Respondent: Messrs Mallesons Stephen Jaques

ORDER

The appeal be dismissed.

DECISION

On 12 December 1988, Magistrate Dainer sitting as an arbitrator under the Workmen's Compensation Ordinance (the "Ordinance") found that on 30 April 1987 George Lauder Smith was a workman to whom the Ordinance applied and who was on that date employed by the appellant. He further found that on that day Mr Smith died as a result of personal injury arising out of and in the course of his employment by the appellant. He found further that Shane John Smith who was born on 30 August 1971 was a dependent of the deceased wholly dependent upon his earnings at the date of death. On those findings he held the first respondent liable to pay compensation to the applicant in accordance with the provisions of the Ordinance.

2. He therefore ordered that the appellant should pay $63,992.25 to the respondent as compensation, that sum being required to be paid to the Clerk of the Court to be paid by him to the Public Trustee for investment on behalf of the respondent pursuant to the Public Trustee Ordinance 1985. He made a finding under the heading "Orders and Awards" that the only person entitled to share in the compensation as a dependant of the deceased was the respondent. He further ordered that the appellant should pay to the respondent until he attained the age of sixteen years on 30 August 1987 a sum of $390.34, representing, as I was told, weekly payments payable pursuant to paragraph 1(a)(i) of the First Schedule to the Ordinance to the respondent in respect of the period from the date of the deceased's death to 30 August 1987. He also ordered that the appellant should pay the respondent's costs of and incidental to the arbitration.

3. Finally, the learned Magistrate ordered that there be no order against or in relation to the second respondent who was the respondent's step-mother and next friend. She was joined in the proceedings before the learned Magistrate at the request of the appellant and her joinder was by consent.

4. The evidence before the learned Magistrate established that the respondent was the son of the deceased who had married the respondent's next friend on 2 November 1974. The deceased had been married to the respondent's mother for some nine months when they separated. A decree of divorce was made absolute on 5 September 1974. The deceased had custody of the respondent from the time he was ten months old. The deceased's second wife did not adopt the respondent but effectively shared in his upbringing throughout the years. The respondent had very little contact with his natural mother.

5. Since the marriage of the deceased and the second Mrs Smith the respondent had always lived with them and had never had support from anybody except from that household.

6. The evidence also established that the respondent was not very good at school and had been investigated for dyslexia. He left school at the age of 14 at the end of 1986. He was never employed after that except for a period of three weeks. The deceased was in receipt of an income of approximately $200.00 per week net at the time of his death while the second Mrs Smith was in receipt of a somewhat larger income. The two incomes were pooled and Mrs Smith was responsible for the financial administration of the household. The deceased smoked three-quarters of a packet of cigarettes a day, drank little and used to spend about $20.00 per week at the TAB in betting.

7. In cross-examination it emerged that for a period of some three years before he began work with the appellant the deceased had been unemployed. During that period, Mrs Smith's income had maintained the family. It appears that the deceased began to work for the appellant some four years before his death. It is clear that during the three years of his unemployment it was Mrs Smith's income that was used to provide for maintenance of the respondent.

8. The appellant appealed against the decision of the learned Magistrate. The grounds of appeal were as follows:-

"1. His Worship erred in law in holding upon the
evidence before him that the First
Respondent was totally dependant upon the
deceased George Lander Smith.
2. His Honour erred in law in finding that the
First Respondent was totally dependant upon
the deceased when there was no evidence upon
which His Honour could make such finding.
3. The decision that the First Respondent was
totally dependant was against the weight of
evidence.
4. That the Learned Stipendiary Magistrate
erred in law in not placing sufficient
weight on the evidence that the first
Respondent was dependant upon both the
deceased worker and the Second Respondent.
5. His Worship erred in law in holding that the
decision of Aafges v. Kearney (1976) 8 ALR
455 was authority for the proposition that
the Applicant was totally dependant upon his
natural parent.
6. His Worship erred in law in holding that
decision of Aafges v. Kearney as binding
authority for the proposition that the
Applicant was not partially dependant upon
his step-mother.
7. His Worship erred in law in failing to award
the amount of compensation in accordance
with paragraph 1 of the First Schedule.
8. His Worship erred in law in failing to
consider the evidence of partial dependancy
of Pamela Joan Smith and make a
determination in respect of such evidence.
9. His Worship erred in law in failing to make
any determination in respect of the Second
Respondent Pamela Joan Smith.
10. His Worship erred in law in failing to find
that Pamela Joan Smith was either partially
dependant, totally or not dependant upon the
deceased worker and award the appropriate
amount of compensation depending on his
finding.
11. His Worship was bound on the evidence before
him to find that both the First and Second
Respondents were dependant upon the deceased
worker at the date of his death.
12. That upon a true construction of Schedule 1
Paragraph 1 of the Workers' Compensation
Ordinance and upon the evidence before him
His Worship erred in law in making no finding
as to the dependancy of the Second Respondent."

9. It will be seen that the grounds fall into two categories. In effect the appellant claims first that the learned Magistrate erred in finding that the respondent was totally dependent upon the deceased and secondly that he was bound in the circumstances, since the second respondent was a party to the arbitration, to make a finding as to her dependency upon the deceased and make an order accordingly.

10. As Gibbs J (as he then was) pointed out in Aafjes v. Kearney (1976) 8 ALR 455 at p 460,

"It is well settled that the question whether
there is any evidence to support a challenged
finding - in this case, that the respondent was
wholly dependent on the deceased worker - is one
of law. If there is no evidence to support a
finding, there has been an error of law.
Moreover, there will be an error of law if the
Commission has acted "upon a view of the facts
which could not reasonably be entertained" or, in
other words, if "the facts found are such that no
person acting judicially and properly instructed
as to the relevant law could have come to the
determination under appeal" Edwards (Inspector
of Taxes) v. Bairstow [1955] UKHL 3; (1956) AC 14 at p 29, 36."

11. At p 461 his Honour went on to say,

"In Kauri Timber Co (Tas) Pty Ltd v. Reeman
[1973] HCA 8; (1973) 128 CLR 177 at 188-9 I accepted that one
person is dependent on another for support if the
former in fact depends on the latter for support,
even though he does not need to do so and could
have provided some or all of his necessities from
another source. I adhere to that view, but it
does not follow from it that a person who in fact
receives some support from one person cannot
properly be said to be wholly dependent on
another. It is not the mere fact of receipt of
support but the dependence or reliance upon
another to provide it that matters. The question
whether there is in fact dependence or reliance
at the date of death is not to be answered by
looking only to the circumstances as they existed
at that date; "past events and future
probabilities" have to be considered
Lee v. George Munro (1928) 21BWCC 401 at 408.
The fact that at the date of death a daughter was
being supplied with some of the necessities of
life by some third person does not necessarily
mean that she was not then wholly dependent for
her support upon her father. Obviously enough if
the assistance provided by the third person was
only intermittent or casual, and unlikely to be
continued in the future, it wouild not prevent
the daughter from being wholly dependent on her
father (of the cases cited in Kauri Timber Co
(Tas) Pty Ltd v. Reeman, supra (ARL at 1273-4;
CLR at 188). But even 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 dependent of her
benefactor and therefore as not wholly dependent
on her father. For example, a child whose home
was in the country and who lived with her
grandparents while attending a school in the city
would not for that reason alone cease to be
wholly dependent upon her father."

12. At pp 463-4 Mason J (as he then was) with whom Stephen J concurred said:-

"As often happens in the field of workers'
compensation where the questions are primarily
questions of fact, the decisions are not
notorious for their uniformity. Consequently it
is not an illuminating experience to explore the
cases in any detail. It is, however, instructive
to look at Potts' Case ((1913) AC 531), for there
the House of Lords had occasion to examine the
application of the statutory provisions to a
situation in which the applicant had a legal
right to support by the deceased but was
nevertheless in receipt of benefits from others.
None the less it was held that the arbitrator was
entitled in these circumstances to find that the
applicant was a dependant wholly dependent upon
the deceased's earnings at the time of his
death. There the workman had deserted his wife
and child. For two years he made spasmodic
payments amounting to pounds 2 in all, which sum was
applied to support of the family. Payments then
ceased and a court order for maintenance was made
against him, but between that time and his death
in 1911 virtually nothing was obtained from him.
The wages then due to him by his employer were
paid to his wife. From the time of desertion the
wife and the family were supported entirely from
the earnings of the two elder children.
Viscount Haldane LC said (at 537-8) "The true
question in the present case is, in my opinion,
whether there was, as one of the facts to be
taken into account, an effective and valuable
legal right. If there was such a right, and
there was no legal difficulty in the way of
enforcing it, then the mere fact that a want of
opportunity to resort to it, which might have
proved only temporary, had reduced the mother and
children for the time to living on charity,
cannot affect the conclusion that by the father's
death they lost something on which they could
depend." .......
"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."

13. Barwick CJ had quoted with approval the words of Viscount Haldane LC in Potts' Case.

14. McTiernan J was of the same view.

15. There can be no doubt that there was evidence before the learned Magistrate from which he could conclude that the deceased was liable to support the respondent. The second respondent was under no such liability.

16. It follows, therefore, that there was evidence before the learned Magistrate from which he could have concluded, as he did, that, to use the words of sub-paragraph 1(a)(i) of the First Schedule to the Act the respondent was wholly dependant upon the earnings of the deceased. No error of law is demonstrated in that finding. Grounds 1 to 7 therefore fail.

17. I turn to the second question. The second respondent did not join in the Application for Compensation because she has taken action under the Compensation (Fatal Injuries) Act 1969 for damages. This action has not yet been completed. In that respect it differs from the situation which obtained in ACT Engineering Pty Ltd v. Cuckow (1973) 1 ACTR 93. In that case a building worker was killed in circumstances which gave rise to a right of action against persons other than the employer (under the Compensation (Fatal Injuries) Ordinance) and to a right of action against the employer under the Workmen's Compensation Ordinance. He was survived by his wife and three infant children. In order that the family might get both compensation and damages, the widow took proceedings under the Compensation (Fatal Injuries) Ordinance on behalf of herself and two of the children, and recovered damages which were apportioned amongst them. Proceedings were then taken under the Workmen's Compensation Ordinance on behalf of the third child. Compensation was awarded, being a fixed sum payable under the Ordinance where the deceased left dependants, and a weekly payment calculated according to the number of children under the age of 16 years. It will be seen that the only basic difference between the two cases is that in the present case the action for damages against a person not the employer of the workman has not been completed.

18. Cuckow's Case was a decision of a bench of three Judges of this Court, Fox, Blackburn and Connor JJ. It established beyond doubt in this Territory the right of dependants to proceed both for compensation and damages where the circumstances permit as in this case. The only question is whether the second respondent, having been joined by consent as a respondent in this case, in some way became an applicant whose claim for compensation had to be considered by the learned Magistrate. I think not. As their Honours said in Cuckow's Case (at p 96),

"Plainly (and this has not been disputed) one
dependant of several, or many, may make an
application for an award. .....It is not
sufficient that different members of a class of
dependants receive compensation and damages
(s.6(6)). The practice whereby some members of a
family obtain damages under Lord Campbell's Act
legislation and another member of that family
obtains compensation under workmen's compensation
legislation is of course well established, and
supported by the highest authority (Kinneil
Cannel and Coking Coal Co Ltd v. Sneddon (1931)
AC 575; (1931) All ER Rep Ext 890; Avery v.
London and North Eastern Railway Co(1938)2 All ER
592; Dey v. Victorian Railways Commissioners
[1949] HCA 1; (1949) 78 CLR 62; (1949)ALR 333; Lulich v. Bell
Bros Pty Ltd (1967) 41 ALJR 268; (1968) ALR 129).
It was next submitted, by way of modification of
the argument we have been discussing, that even
though the magistrate could make an award on
Mark Cuckow's application, the award made should
take into account in some way the fact that some
part of the award should, or might be, paid out
of Court to one of the other members of his
family, all of whom would also be dependants for
the purpose of the Workmen's Compensation
Ordinance. In our opinion the magistrate, having
been satisfied of other relevant matters, was not
obliged to do more than award the amount of
compensation for which the First Schedule
provided. This amount was then payable into
Court, where its disposition was subject to the
other provisions of the First Schedule, and the
rules made under the Ordinance.
At first sight, at least, it is very strange that
one dependant, such as Mark Cuckow in the present
case, should be able to obtain an award which not
only includes a fixed lump sum which is the same
as if several had applied, but which also
includes weekly payments referable to the other
dependants, and the duration of which is governed
by the ages of those persons, and, indeed, by
their continuing existence. However, it has long
been accepted in relation to workmen's
compensation legislation sufficiently in
para materia with the present, that the process
of quantification is an independent one which is
not governed by the situation of the particular
applicant (London Brick Co Ltd v. Robinson [1982] UKHL 1; (1943)
AC 341; (1943) 1 All ER 23; Barwood v.
W H Blackham Pty Ltd (1965) VR 499). The point
which gives rationality to this result is that
the amount of the award, when made, is paid into
Court, where it is not held simply for the
particular applicant, but for a wider class which
speaking generally, comprises all dependants who
could claim. In the Ordinance, the relevant
provision is para 6 of the First Schedule, which
is as follows:-
"6. A payment in the case of death
(including a payment under paragraph 9A of
this Schedule) shall, unless otherwise
ordered in pursuance of the provisions of
this Schedule, be paid into the Court and
any sum so paid into Court shall, subject to
the Rules of Court, and the provisions of
this Schedule, be invested, applied or
otherwise dealt with by the Court in such
manner as the Court in its discretion thinks
fit for the benefit of the persons entitled
thereto under this Ordinance, and the
receipt of the Clerk of the Court shall be a
sufficient discharge in respect of the
amount paid in:
"Provided that, if so agreed, the payment in
case of death shall, if the workman leaves
no dependants, be made to his legal personal
representative, or if he has no such
representative, to the person to whom the
expenses of medical treatment and the
funeral are due."
"There is no provision which defines or describes
who are "the persons entitled thereto under this
Ordinance" (cf. s34(2) of the Workers
Compensation Act 1958 (Vic)). This is not
perhaps very surprising, having in mind the
general framework of the Ordinance. Section 7
which is a key section merely stipulates that an
employer shall, subject to the ordinance, be
liable to pay compensation in accordance with the
First Schedule. Nowhere in the Ordinance is a
right given in express terms to a workman, or his
legal personal representative, or his dependants,
to claim compensation. The right to claim must
be implied. In the case of a workman there is no
difficulty. In relation to dependants, perhaps
the clearest indication that they are entitled to
claim appears from ss22 and 23, when read in
conjuction with s6(6). It is not necessary to
determine at this stage (if it ever becomes
necessary) who are "the persons entitled .....",
and to what extent, but in general it can be said
that they are the dependants of the deceased.
The Workmen's Compensation Rules to which para 6
is in part made subject, provide in rule 49 for
payment into Court and for the disposition of the
amount paid in, and it clearly proceeds on the
basis that dependants are the persons entitled.
"We were at one stage concerned as to whether all
necessary parties had been joined in the
compensation proceedings. Rule 8(2) provides
that where there is a conflict of interest
between the dependants, or if any dependants
neglect or refuse to join in an application, an
application may be made by some only - "the other
dependants in either case being named as
respondents". No objection was taken during the
compensation proceedings that other dependants
should have been joined. The magistrate was made
well aware of the existence of the other members
of the applicant's family and of their success in
the action. It seems that making them
respondents would only have been a formality, and
in the circumstances the magistsrate was entitled
to proceed without them being joined (cf. per
Lord Atkin in Avery v. London and North Eastern
Railway Co (1938) AC 606 at 615; per Latham CJ
in Dey v. Victorian Railways Commissioners [1949] HCA 1; (1949)
78 CLR 62 at 82)."

19. It seems clear from the reasoning of their Honours that it is quite irrelevant whether the action for damages be complete or not at the day when the award for compensation is made.

20. The respondent was legally entitled to commence proceedings on his own behalf for compensation. The fact that the second respondent was joined as a respondent does not force her into the position of an applicant and there is no suggestion that in some fashion she became an applicant for compensation.

21. It follows that the remaining grounds of appeal fail.

22. The appeal will be dismissed with costs.