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Aafjes v Kearney [1976] HCA 5; (1994) 180 CLR 199 (3 March 1976)

DECISION

2. The facts which the Commission accepted were that the deceased and the mother of the child were divorced, the mother having custody and the father an obligation by order of the Supreme Court of New South Wales to pay a sum of $6 per week towards the maintenance of the child. The father made payments under this order but not regularly: indeed, at times, he failed to pay at all. The child's mother remarried. The child lived with her in the home of her stepfather, who made no financial contribution to her maintenance, though he allowed her to lodge in his home. Her mother paid for the child's food, clothing, medical, dental and educational needs out of the money received by her from the father and, as well, herself provided the cutlery, cooking utensils, bedding and suchlike which were used by the child.

3. After a period in the year prior to his death during which the father had failed to make maintenance payments, an agreement was made between the father and the mother that the father should pay $12 per week through the Children's Court at Manly for maintenance of the child. Apparently the father was performing his obligations at the time of his death.

(4) (1913) AC 531.

(6) (1906) 5 F. 438.

(7) [1973] HCA 8; (1973) 128 CLR 177, at pp. 188, 193-194.

(8) (1901) 3 F,. 775, at p. 778.

(9) (1904) 6 F 992.

4. There were further facts, though for my part they would seem to have small significance. The mother at the date of the death of the father was employed by her husband to do secretarial work at a salary of $20 per week. But, by the time the application for compensation came on for hearing, divorce proceedings between the mother and her husband were on foot.

5. At the instance of the present appellant, Aafjes, the employer of the deceased, the Commission pursuant to s. 37(4)(b) of the Workers' Compensation Act 1926 (N.S.W.), as amended, stated a case for the opinion of the Supreme Court. The substantial question asked was whether the Commission erred "in law in holding that the applicant was wholly dependent for support upon the deceased worker at his death".

6. The Supreme Court, by majority, answered this question in the negative, rejecting the contention of the appellant that the child, the now respondent, was dependent on her mother, or alternatively, on her stepfather, and that that dependence precluded a finding that she was wholly dependent on her father for support.

7. The Supreme Court, both the majority and the minority, canvassed a number of authorities. But, for my part, the question of dependence or no dependence, whole or partial, is a question of fact. It has been said to be so in many authorities by distinguished members of the House of Lords. It cannot be turned into a question of law by the citation of authorities. The only question of law which can emerge in a case such as the present is whether there was any evidence on which the Commission could conclude that in fact the respondent was wholly dependent on her father for support. In this respect, I respectfully ague with We words of Lord Haldane in Potts v. Niddrie and Benhar Coal Co. Ltd. (11):

"I am of opinion that the sheriff-substitute could properly hold that these children were wholly dependent. They had the right to look to their father for maintenance, and it is plain that those in whose care they were did so look, and endeavoured as best they could to make the right effective. The children had no other means of support which could render their position one of partial dependence. It was only by assistance from their brothers, assistance which might have ceased at any moment, that they were saved from actual want. The father was under an obligation to maintain them which had already been enforced, and which might have been enforced again at any moment had he lived. Under these circumstances I think that the younger children could be held to be wholly dependent within the meaning of the Act of Parliament. The case is quite different

(11) (1913) AC 531, at pp. 536-538.

8. The Lord Justice-Clerk says in his judgment that the true question is not, Had the applicant a legal right to maintenance by the deceased? but, Was the applicant actually receiving support from one to was under an obligation to give support, and who was also the servant of the master whom it is proposed to make liable in compensation?

9. My Lords, I cannot agree with this view of the true question. I agree that a mere legal right may not, in certain circumstances, be sufficient. It was held insufficient in the case before this House which I have quoted. The long period of desertion by the wife had so qualified it that, as Lord Atkinson pointed out, there was no evidence on which the arbitrator could properly find the fact of dependency.

10. Here I think there was evidence on which he could find that fact, and if this be so the finding of fact is conclusive. 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.

11. I wish to add that I have, since the argument, examined the reported authorities. There has been a good deal of divergence in judicial opinion as to what dependency means. There has been a disposition to draw highly refined distinctions, and the decisions arrived at and the reasons for them have not been always consistent. I think that this tendency and its consequences will be lessened if it is borne firmly in mind that the question is always primarily one of fact, on which the conclusion of the arbitrator ought only to be set aside, if it is apparent that there was no evidence to support it, or if error in law appears on the face of it. I am of opinion that this is what the Act of Parliament has laid down as the principle to be followed, and that the intention therefore was to confine the power of review by the Courts within the narrow limits I have indicated."

(12) (1911) AC 648.

12. With due respect, I commend this view, one which I hold strongly myself, to those who are asked such a question as the question asked in the present case stated. If that view is followed, certainty and early finality in these matters will be advanced, whereas if it is not, unnecessary and avoidable subtlety and complexity will be further introduced into this area of the administration of the law to the great disadvantage of those for whose benefit this legislation was designed.

13. In my opinion, the Commission was clearly entitled to hold on the material before it that the respondent was wholly dependent for support upon her father. That material afforded evidence of that fact and no principle of law precluded the conclusion. In that connexion, I would express my dissent from the view that because "the facts are clearly stated" that "the question as to whether on facts found which legal category is the appropriate one is ... a question of law". On the contrary, the conclusion of dependence is one of fact and not the assignment of a situation to a legal category The view from which I express my dissent would turn every conclusion of dependence into a question of law. But that would clearly be erroneous and contrary to every decision of high authority, including Potts v. Niddrie and Benhar Coal Co. Ltd.

14. This is not a case where in the path to the conclusion of dependence there is need to construe an act or instrument, though even in that case, there is much to be said against the view expressed by Lord Parker in Farmer v. Cotton's Trustees (13). That case is no warrant, in my opinion, for treating the conclusion of dependence in this case as other than a question of fact.

15. For these reasons, I would answer the relevant question in the negative and dismiss the appeal.

McTIERNAN J An employer is liable under the Workers' Compensation Act 1926 (N.S.W.) (s. 7(1)(a)) to pay compensation in accordance with this Act to the dependants of a worker who sustains a fatal injury in the employer's service. The term "dependants" is defined by s. 6(1). They are members of the worker's family wholly or in part dependent for support upon the worker at the time of his death. Where the worker leaves any dependants wholly dependent for support upon him at that time, compensation is payable by the employer under s. 8(1). Where the worker leaves partial dependants compensation is payable in accordance with s. 8(2).

(13) (1915) AC 922, at p. 932.

2. Whether the relation of dependency exists, and if it does, whether the dependency is total or partial are questions of fact. The appellant, as the employer of a deceased worker, admits he is liable to pay compensation in respect of the death of the worker, to the respondent, the worker's youngest child. The question at issue is whether the respondent is entitled to the amount of compensation stipulated by s. 8(1)(a), $13,250, or to an amount determined under s. 8(2).

3. On an application by the respondent to the Workers' Compensation Commission, Judge McGrath found that she was wholly dependent for support upon the worker at the time of his death and awarded her $13,250. His Honour said in his judgment that if it had befallen to him to assess compensation under s. 8(2) he would have assessed it at the sum of $2,000.

4. In determining the application the Commission exercised jurisdiction conferred by s. 36. Subject to s. 37, the decision of the Commission is final in every case. By s. 36(4) the jurisdiction of the Commission extends to determining: "(g) the existence and extent of dependency." At the request of the applicant, the judge stated a case, which called in question his finding on the question of the extent of the respondent's dependency for support upon her father, for the decision of the Supreme Court thereon. The case contains findings of fact made by the judge and a number of questions, each of which is framed as a question of law. The first question is as follows: "Did the Commission err in law in holding that the applicant was wholly dependent for support upon the deceased worker at the date of his death?" The hearing of the stated case took place before Moffitt P., Hutley and Samuels JJA The Court - Hutley JA dissenting - answered the question in the negative. The judgment of the Court affirmed the award of the Commission.

5. The argument of counsel for the appellant was directed to the question quoted above. It rested upon the division, in the definition, of "dependants" into two classes - total dependants and partial dependants. Counsel urged, as I understand the argument, that the findings in the stated case as to the help given to the respondent by her mother since the dissolution of the marriage of the respondent's parents, and the finding that her mother's second husband has allowed the respondent to stay in their house, precluded a decision that the respondent was wholly dependent for support upon her father. I do not think that the learned judge was obliged to hold that what the respondent's mother supplied to her, or the aid she gave to her since she divorced her first husband, or the concession of a room to the respondent by her mother's second husband in their house, amounted to substantial support. The finding that the respondent's mother has instituted proceedings for the dissolution of her second marriage might have been considered by the judge. The contributions of money which the respondent's father was making in the months before his death created a real situation approximating to her being wholly dependent for support upon her father.

6. There is nothing in the stated case to suggest that before the dissolution of the marriage of her parents the respondent was not fully dependent for sustenance, shelter and other necessaries upon her father. This situation was not destroyed. She did not become like a stranger, economically or otherwise independent of her father. There is nothing in the stated case to show that the former situation changed during the rest of her father's life from the total natural dependence proper in a girl in her nonage, to partial dependence. The extent of her dependence is not exactly measured by the payments the respondent's father was making. The probability that she would expect him to be her standby in case of necessity may have been considered by the Commission.

7. I would answer "No" in the first question and in each of the other questions.

8. In my opinion the appeal should be dismissed.

GIBBS J The facts of this case are set out in the judgment of my brother Mason which I have had the advantage of reading. I agree with him that this appeal must be dismissed.

2. The matter came before the Court of Appeal by way of a case stated by the Workers' Compensation Commission of New South Wales under s. 37(4)(b) of the Workers' Compensation Act 1926 (N.S.W.), as amended. The stated case raised for the decision of the Court a number of questions which, upon analysis, may all be reduced to one: Did the Commission err in law in holding that the respondent was wholly, rather than in part, dependent for support upon the worker (her father) at the date of his death? The disadvantage of the procedure for which s. 37(4)(b) provides in a case such as the present is that the Court is called upon to consider whether the alleged error is one of law or of fact - an inquiry of a sterile and technical kind but frequently productive of disagreement. 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" (14). For, as Lord Radcliffe said in that case (15):

"I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test. For my part, I prefer the last of the three, since I think that it is rather misleading to speak of there being no evidence to support a conclusion when in cases such as these many of the facts are likely to be neutral in themselves, and only to take their colour from the combination of circumstances in which they are found to occur."

3. On an analogous principle, "where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only". This statement by Lord Parker of Waddington in Farmer v. Cotton's Trustees (16), has been accepted as correct by Fullagar J in Hayes v. Federal Commissioner of Taxation (17), and by Windeyer J in Australian Iron and Steel Pty. Ltd. v. Luna (18). As appears from the way in which this rule is stated, the rule does not apply if all the material facts have not been found, for example, if it remains to draw an inference of fact before the ultimate facts can be determined.

4. 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 front another source. I adhere to that view but it does not follow from it that a person who in fact

(14) Edwards v. Bairstow, [1955] UKHL 3; (1956) AC 14, at pp 29, 36.

(15) ibid., at p 36.

(16) (1915) AC 922, at p. 932.

(17) [1956] HCA 21; (1956) 96 CLR 47, at p. 51.

(18) [1969] HCA 66; (1969) 123 CLR 305, at pp. 320-321.

(19) [1973] HCA 8; (1973) 128 CLR 177, at pp. 188-189.

5. The conclusion that I have reached - that a daughter may be wholly dependent upon her father notwithstanding that she in fact receives support from other sources - is supported by authority, although it is true that the cases in which this was decided are distinguishable on their facts from the present case (22).

6. It must follow that the facts that the respondent was at the date of her father's death provided with lodging by her stepfather and received some benefits from her mother were not necessarily inconsistent with a finding that she was wholly dependent on her father. It is not our function to consider whether the determination of the Commission was, as a matter of fact, right or wrong. Still less are we concerned with the fact that the Act appears to have the extraordinary result that the respondent, if wholly dependent, is entitled to $13,500 together with additional weekly payments, but if partly dependent is entitled to no more than $2,000. There was no error of law in the decision of the Commission and the appeal should be dismissed.

(20) Lee v. Munro (1928), 21 BWCC 401, at p 408.

STEPHEN J Having had the advantage of reading the reasons for judgment of Mason J I find myself in entire agreement with them and would accordingly dismiss this appeal.

MASON J The Workers' Compensation Commission found that the respondent, an infant daughter of the deceased, was wholly dependent for support upon her father at the time of his death on 2 March 1973, notwithstanding that she was provided with accommodation and some clothing by her mother and stepfather. The Commission stated a case which was designed to raise the question whether its determination was erroneous in law. By a majority, the Court of Appeal answered the questions asked in the stated case adversely to the appellant employer. The facts recited in the case disclose that the deceased died as a result of injuries arising out of or in the course of his employment, that his marriage with the respondent's mother was dissolved on 15 August 1965, and that she re-married on 27 December 1968. By the terms of the decree for dissolution of the marriage the deceased was required to pay $6 per week towards the respondent's maintenance. These payments were not made regularly and for a time during 1972, they were not made at all. Late in that year We respondent's mother prevailed upon the deceased to pay $12 per week for the maintenance of the respondent, although no variation of the court order was made to this effect.

2. The respondent lived with her mother in the matrimonial home established by the mother and her stepfather. He contributed no money towards her maintenance, the mother paying for the respondent's food, clothing, medical, dental and educational needs from the sum of $12 per week provided by the deceased. The mother also made some of the respondent's clothing. The stepfather provided accommodation for the respondent in the matrimonial home.

3. The appellant's case is that there was no evidence on which the finding in favour of the respondent could be sustained. The submission is, therefore, that on the facts recited there was no evidence to sustain the conclusion that the respondent was "a dependant wholly dependent" for support upon the deceased, to quote the language of s. 8(1) of the Workers' Compensation Act 1926 (N.S.W.), as amended.

4. The question which has arisen is not substantially dissimilar to questions which arose in English and Scottish cases on the provisions of cl. 1 of the First Schedule to the Workmen's Compensation Acts of 1897 and 1906 by which an entitlement to compensation was conferred "if the workman leaves any dependants wholly dependent upon his earnings at the time of his death". in these decisions it was consistently affirmed by the House of Lords that the question of dependency was not a question of law but was primarily a question of fact (23). As Lord Shaw of Dunfermline observed in the second of these cases (24), "not only whether dependency exists but whether it is whole or is partial are questions of fact". It follows that a finding by the tribunal of fact is conclusive unless there was no evidence to support it or it was vitiated by some error of law (25).

5. As so 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, 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.

6. Viscount Haldane LC said (26):

"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."

(23) Main Colliery Co. Ltd. v. Davies, (1900) AT. 358; Hodgson v. West Stanley Colliery, (1910) AT. 229; Potts v. Niddrie and Benhar Coal Co. Ltd., (1913) AC 531.

(24) (1910) AC at p.239

(25) Potts' Case, (1913) AC, at p.538.

7. His Lordship distinguished New Monckton Collieries Ltd. v. Keeling (27) on the ground that there the wife had abandoned her right to support over a long period of time.

8. Lord Shaw of Dunfermline said (28):

"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."

9. These observations reflect an approach which should in my opinion be taken to s. 8(1) of the New South Wales Act. Indeed, on a comparison of the language of the provisions there is 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 section. The English provisions were more susceptible to a construction which confined their application to the inquiry: Are the deceased's earnings the applicant's sole source of support?

10. In Pryce v. Penrikyber Navigation Colliery Co. Ltd. (29), Collins MR said: "I understand by the words 'wholly dependent' that there was no other source of income during the lifetime of the deceased other than his earnings on which the applicant was dependent." However, as Samuels J remarked in the Court of Appeal, the emphasis in this passage was upon the word "earnings", as the Master of the Rolls was making the point that the widow's succession to the deceased's personal estate after his death did not detract from her dependence on his earnings during his lifetime.

11. Stirling LJ's observation in the Penrikyber Case (30), "Put broadly, the test raised by the Act is whether what the workman was earning at the time of his death was the sole source to which the applicant could have looked for maintenance at that time", was like the Master of the Rolls' remarks, approved in Hodgson v. West Stanley Colliery (31). However, as the later decision of the House of

(27) (1911) AC 648.

(28) (1913) AC, at p. 541.

(29) (1902) 1 KB 221, at p. 223.

(30) ibid., at p. 224.

(31) (1910) AC, at p. 239.

12. 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. Once this approach to s. 8(1) is adopted, as in my opinion it should be, the conclusion is inevitable that there was evidence to support the Commission's decision on the issue of fact. The deceased was under a legal duty to maintain the respondent. This duty had been enforced by a court order. Although the order was not complied with for some time, a subsequent agreement between the deceased and the mother had resulted in the deceased paying $12 per week, twice the amount specified in the court order. The fact that the respondent was permitted by her stepfather to live in the home which he and her mother had established should not be regarded as a contribution by him to her support or maintenance but rather as a kindness and benefit on his part to the respondent's mother so as to enable her to enjoy the society and companionship of her daughter. Seen in this light the provision of accommodation did not detract from the respondent's total dependence for support on her father. Nor, for that matter, did the provision of some clothing by the mother have that effect.

14. In the result, therefore, the Commission was entitled to find as it did, and the answers given by the Court of Appeal to the questions in the stated case should be confirmed.

15. I would dismiss the appeal.

16. Appeal dismissed with costs.

(32) (1973) 128 CLR, at p. 189.