Kauri Timber Co (Tas) Pty Ltd v Reeman [1973] HCA 8; (1973) 128 CLR 177 (12 April 1973)

HIGH COURT OF AUSTRALIA

KAURI TIMBER CO. (TAS.) PTY. LTD. v. REEMAN. [1973] HCA 8; (1973) 128 CLR 177

Workers' Compensation (Tas.)

High Court of Australia.
Barwick C.J.(1), McTiernan(2), Menzies(3), Gibbs(4) and Stephen(5) JJ.

CATCHWORDS

Workers' Compensation (Tas.) - Calculation of compensation - Total and partial dependency - "Dependant" - Wife with small property income not used for own maintenance and support - Whether wholly dependent on husband's earnings - Workers' Compensation Act 1927 (Tas.), s. 3, 1st Sch., r. 2.

HEARING

Hobart, 1973, February 14;
Sydney, 1973, April 12. 12:4:1973
APPEAL from the Supreme Court of Tasmania.

DECISION

April 12.
The following written judgments were delivered:-
BARWICK C.J. In this matter I have had the advantage of reading the reasons and statutory references necessary for the disposal of the appeal. (at p178)

2. The Chief Justice of Tasmania has found that in fact the respondent was wholly dependent on the earnings of her husband. His Honour did so because, as I understand him, she had not used her private income as a contribution to the maintenance of the family or to buy things for her personal use instead of looking to her husband to provide those things. Her private income was kept separate and not used for the family's living expenses or for her own personal maintenance. (at p178)

3. The reference to contribution to the family income stemmed from the expression used by the Earl of Halsbury in Main Colliery Co. Ltd. v. Davies (1900) AC 358, at p 362 . But his Lordship was there treating "the purpose of its maintenance as a family" as a useful and proper criterion for the resolution of the facts of that particular case. The dependency of a father on the earnings of his son was there in question. The endeavour to set up a standard of living for such a family of which the son was a member and to determine dependency according to what such a family ought to expend to maintain such a notional standard rather than what it did expend was discouraged. Actual expenditure and dependency in relation to that expenditure was to be relied on. (at p179)

4. Little assistance in the resolution of this case, in my opinion, is to be gained from the speeches of the House in that case, beyond the undoubted conclusion that dependency on the earnings of the worker is a question of fact. Indeed, what is in my opinion the critical question in this case is not directly dealt with in the reported decisions: that question, in my opinion, is dependent for what? (at p179)

5. It can be concluded from the cases that the question of dependency is not to be answered by reference to legal obligations; that there is no standard of living which will determine the question; that dependency is not limited to the provision of the bare necessities of life. On the other hand, none of the reported judgments lends support to the view that if anything is spent by anyone other than a husband on or for a wife, irrespective of the object of the expenditure, total dependency is denied. Somewhere between the extremes of the provision of bare necessities and the receipt by the wife of any advantage not provided by her husband there must be a line, no doubt vaguely defined and difficult of precise or even approximate definition or description, which marks off the difference between expenditure which denotes and expenditure which denies dependency. (at p179)

6. As I have said, the question which has not satisfactorily been answered in prior cases is in what respect or for what is the widow to have been wholly dependent on the earnings of her husband. I am unable to agree that if she has any income of her own, she cannot be said to be wholly dependent on her husband, irrespective of the purpose to which she devotes her income and irrespective of the provision which the husband makes for her out of his earnings. It seems to me that Workers Compensation Acts are, as their title indicates, designed for the circumstances commonly found to exist in the household of a worker, chiefly a worker in industry though no doubt a much wider group of employees have the benefit of those Acts. Underlying the concept of dependency in connexion with these Acts there is, in my opinion, the notion of maintenance and support. The line to which I have referred is to be found in a case of the present kind in expenditure which is not made for the maintenance and support of the person claiming dependency. (at p180)

7. Maintenance and support for this purpose will not be the same concept as is relevant in legislation as to testator's family maintenance or in matrimonial causes. The relationship of expenditure on the maintenance and support of the claimant to the earnings of a worker must, in any case, circumscribe the area denoted by the expression, which is to a degree imprecise. The expenditure which in my opinion, is comprehended by it is, I think, related to the provision of the necessities of life having regard to the manner in which the worker's household in which the claimant to dependency has participated lived. Such a view is, in my opinion, consistent with the speeches of the House in Main Colliery Co. Ltd. v. Davies (1900) AC 358 That does not involve setting up some standard as a level of expenditure by reference to which support or maintenance can be referred. But the words "maintenance and support" do involve, in my opinion, the idea that there are some expenditures by the worker's household which are not expenditures for the support and maintenance of that household or of its members, though made out of the worker's earnings. Thus, if, as I think is the case, a wife does not cease to be wholly dependent on the earnings of her husband because she expends some income of her own, irrespective of how she may employ it, there must arise in each case the question whether some use of her private income has made her less than wholly dependent in respect of her support and maintenance on the earnings of her husband. No doubt there may arise cases in which the private income of a wife has been used to lift the living standard of the family and to increase the area of expenditure which could properly be said to be expenditure for the support or maintenance of the household, including the wife. But I should imagine that such cases under worker's compensation legislation would be extremely rare. It would be unwise, in my opinion, to determine what is total dependency in terms appropriate to the necessary exclusion of such a wife from total dependency. It may be a difficult matter to decide in point of fact whether or not total dependency on the husband's earnings exists in such a case. But it must be decided by answering the question whether she relied for her maintenance and support as distinct from all the advantages she may have or enjoy entirely on the earnings of her husband. (at p180)

8. In my opinion, the notion of total dependency in the case of worker's compensation leaves room for a wife to have personal income employed by her for her personal purposes without trenching on that area of expenditure which can properly be called expenditure for her maintenance and support. Total dependency upon the earnings of the husband for support and maintenance does not mean that the whole of the expenditure which may be made for the benefit of the wife whether by herself or, for that matter, by her husband is expenditure for her maintenance and support. Though maintenance and support are not limited to bare necessities, to legal obligations or to some notional standard of living, it yet does not extend, in my opinion, to every expenditure which may be made by husband or wife, whether out of his income or hers. (at p181)

9. In the present case, it was submitted that what was expressed as "transport" for a wife was part of the maintenance and support which she could expect of her husband. Therefore, it was said, her expenditure on the maintenance of her car was an expenditure in relief of her husband's expenditure on her maintenance and support. The suggested conclusion is that therefore she was not wholly dependent upon his earnings. (at p181)

10. In my opinion, it is a source of fallacy to characterize the maintenance of a motor car as the "provision of transport" and then to treat the abstraction "provision of transport" as an obligation of a husband to his wife. As the decisions show, the legal or moral obligations are not decisive of what is maintenance and support in any particular case. In this case the husband, though well able to do so financially, did not provide his wife with "transport" in the form of a car. It could scarcely be said that therefore he did not wholly maintain and support her. There is no suggestion in the case that he did not provide a car because his wife undertook to do so, or in fact did so. The facts of the case rather suggest and the Chief Justice in substance found to the contrary. The use of a motor car was not, in my opinion, part of her maintenance and support. The car was obtained and used by the respondent upon her own initiative and for her own personal purposes. Her use was certainly not limited to the performance of household duties. (at p181)

11. Though I may not agree wholly with the use made by the Chief Justice of the prior decisions, so far from thinking he was wrong in his conclusion of fact, he was in my opinion right. I am also of opinion that the respondent was wholly dependent for her maintenance and support upon the earnings of her husband. I would dismiss the appeal. (at p181)

McTIERNAN J. The appellant is the employer who is liable under s. 5 of the Workers' Compensation Act (Tas.) 1927, as amended, to pay compensation under the Act in respect of the personal injury suffered by the respondent's husband which resulted in his death. The dispute is as to the amount of compensation which the appellant is liable to pay. This falls for calculation in accordance with r. 2 of the 1st Sch. to the Act. In this rule there are formulae for the calculation of compensation. Those considered relevant are the following. One is applicable to the case described in these words:

"(a) If the worker leaves any dependants wholly dependent
upon his earnings ..."

The other is applicable to the case described in this way:

"(b) If the worker does not leave any such dependants but
leaves any dependant in part dependent upon his
earnings ..."

The term "dependants" is defined by s. 3 of the Act to mean:

"such members of the family of the worker in relation to
whom the term is used as -
(a) were dependent, wholly or in part, upon the earnings of
that worker at the time of his death ..."

The remainder of the definition of "dependants" need not be quoted here. (at p182)

2. This definition, so far as quoted above, becomes applicable to a wife by reason of the definition of the term "member of the family", to be found also in s. 3. (at p182)

3. The Act contains no definition of "dependent". The word is used in relation to a dependant who is a member of the worker's "family", as defined, dependent on his earnings at the time of his death. In my opinion, the correct denotation of the word in the present context is dependent at that time on the earnings of the worker for maintenance or means of support. (at p182)

4. The Chief Justice of Tasmania, who heard Mrs. Reeman's claim for compensation under the Act, decided that she was dependent wholly upon the earnings of her husband at the time of his death. It is contended for the appellant that she was dependent only in part upon such earnings at the time of his death. The only ground on which it is so contended is that before and at the time of her husband's death Mrs. Reeman owned a motor car the price of which she paid out of her own modest resources and the running expenses of which she paid out of her separate income derived from such resources. (at p182)

5. The salient features of the evidence, both oral and documentary, appear from the judgment of the learned Chief Justice. His Honour said:

"I accept the plaintiff (Mrs. Reeman) as a completely honest
and reliable witness. I am satisfied that she kept her own money
separate from her husband's, and did not use any of it for
ordinary household expenses or her own maintenance. I find
that she looked wholly to her husband to defray all the
household expenses and her ordinary living expenses (including
clothing) and that (apart from some savings from it) she used
her own money solely to maintain her car and for small
purchases outside the regular family expenditure. I also accept
her evidence that her husband did not drive or use the car at
any time, although he was, of course, a passenger in it from
time to time. He made no contribution to its running expenses
and it was not regarded as a family car."

The learned Chief Justice further said in his reasons for judgment:

"In the present case the wife's small private income was
kept separate and was not put into a common family fund. It
was not used for the family's living expenses, or for the personal
maintenance of the wife. I accept her evidence that she used
it to maintain her car and for 'presents'. No doubt some of
the 'presents' would be household requisites. I would think
that the greater part of her small income would be used to run
her car. Under these circumstances was she wholly dependent
on her husband's earnings?

The expression 'such members of the family of the worker
... as were dependent, wholly or in part, upon the earnings of
that worker at the time of his death' is elliptical. Dependent
for what? For the ordinary necessaries of life? For one's
actual living expenses? In New Monckton Collieries Ltd. v.
Keeling (1911) AC 648, at p 657 Lord Shaw of Dumfermline said:
'The Act of Parliament seems to say: Among the relatives
'of the deceased workman, if there be those who depended
'for support upon his earnings, and who by his death have
'lost that support upon which they depended, then let them
'be compensated for that loss.'" (at p183)

6. In my opinion, his Honour was right in applying the dictum of Lord Shaw to the present case and deciding as follows:

"So that for the plaintiff to establish that she was wholly
dependent on the earnings of the deceased she must show that
she was wholly dependent on those earnings for her maintenance
and support. And it follows from the Main Colliery Case (1900) AC

358, at p 362

that the standard of maintenance and support is not to be
equated to some notional standard for a family of this class,
but 'what the family was in fact spending, for the purpose of
its maintenance as a family'. It is not, in my view, inconsistent
with this notion of total dependency that the plaintiff had some
money of her own which she spent for her private purposes
outside the ordinary family expenditure for maintenance and
support of the wife in this case should not be taken to include
the running expenses of the car. The cost of running the car
should not, in my view of the evidence, be treated as an
ingredient in the family expenditure for the purpose of measuring
the extent to which she was dependent on her husband for
her maintenance and support. I think her pecuniary loss is a
loss commensurate with total dependency." (at p184)

7. The evidence does not justify a finding that a characteristic of the motor car was that it was an article of household use or that the expenditure on it was an item in the wife's maintenance - defrayed by herself. Such expenditure cannot, on the evidence, be regarded as expenses of housekeeping or expenditure by the wife for the purpose of her own maintenance. On the evidence the deceased worker assumed responsibility for the entire maintenance and means of support in respect of all the respondent's necessaries and provided fully for her livelihood out of his earnings as a worker in the employment of the applicant. (at p184)

8. The judgment of the learned Chief Justice is, in my respectful opinion, right. (at p184)

9. I would dismiss the appeal. (at p184)

MENZIES J. The matter for decision in this appeal from a judgment of the Supreme Court of Tasmania is whether the learned Chief Justice was in error in deciding as he did that a wife who had some property producing a small income of her own which she spent mainly upon the upkeep and running of her own motor car was, nevertheless, wholly and not merely partially dependent upon the earnings of her husband. (at p184)

2. The deceased, who died as the result of an accident at work on 31st December 1969, was, at the date of his death, sixty-six years of age, and his wife was then sixty years of age. They lived together in a house which they owned jointly at Stanley. They were not in poor circumstances. The husband was earning a wage of fifty dollars weekly and was in receipt of a superannuation payment of twenty dollars a fortnight from the Tasmanian Government Railways. At the time of his death, he had $5,300 approximately in a State Savings Bank account. According to answers to interrogatories, his income, apart from wages received from the appellant, was as follows: in the financial year 1967-1968, $3,728; in the financial year 1968-1969, $3,007; and in the incompleted financial year 1969-1970, $1,839. The wife had a net annual income of from $200 to $300 from a farm property in which she had an interest, and from sixty dollars to seventy dollars from dividends and interest. It was found that she used her income "solely to maintain her car and for small purchases outside regular family expenditure". It was also found that the deceased regularly handed over to her about half his weekly wages for household expenses (i.e., about twenty-five dollars) out of which she paid the household expenses and bought clothing for herself and husband. He paid the rates and taxes, and light and fuel accounts. (at p185)

3. His Honour said that for the plaintiff:

"... to establish that she was wholly dependent on the
earnings of the deceased she must show that she was wholly
dependent on those earnings for her maintenance and support
And it follows from the Main Colliery Case (1900) AC 358 that the

standard

of maintenance and support is not to be equated to some notional
standard for a family of this class, but 'what the family was in
fact spending, for the purpose of its maintenance as a family'.
It is not, in my view, inconsistent with this notion of total
dependency that the plaintiff had some money of her own
which she spent for her private purposes outside the ordinary
family expenditure for maintenance and support of the wife
in this case should not be taken to include the running expenses
of the car. The cost of running the car should not, in my view
of the evidence, be treated as an ingredient in the family
expenditure for the purpose of measuring the extent to which
she was dependent on her husband for her maintenance and
support."

The basis of his Honour's decision was, therefore, that although the wife had property and income, she made no contribution therefrom to the family expenditure. (at p185)

4. I have with respect come to the conclusion in the circumstances stated, that it was not appropriate to treat "family expenditure" as the touch-stone to determine whether what the wife spent upon herself contributed to her support. I think it was necessary to determine what were the wife's means of living while her husband was living and working. In determining this, I do not think it possible to leave her own property and income out of account simply because what was found to be "family expenditure" was met by her husband out of his wages. "Family expenditure" does not comprehend all that falls within the conception of means of living. (at p185)

5. It appears to me that the provision of some means of travelling was not outside the concept of the means of living of a woman sixty years of age in a small and remote country town. If the wife had provided everything for herself but transport yet had received from her husband out of his wages some $300 a year for the purpose of her transport and travel, surely she would have been partially dependent upon his earnings by reason of that contribution. If ordinary transport falls within the conception of means of living - as I think it does - then for the wife to use $300 of her own for her transport and travel did reduce her dependency upon her husband's earnings to that extent. (at p186)

6. In the circumstances of this man and wife, I consider that the husband's earnings were not the wife's only means of living and the conclusion that they were arose, paradoxically enough, from the adoption of too narrow a conception of what constituted the wife's means of living. If her transport was not part of household expenditure, it was, nevertheless, something forming part of her expense of living. (at p186)

7. I do not find it necessary to go beyond this narrow ground in deciding that the wife was not wholly dependent upon her husband's earnings. (at p186)

8. Accordingly, I consider that the appeal should be allowed. (at p186)

GIBBS J. In this appeal it is admitted that the respondent was a dependant of her late husband who was killed in an accident arising out of and in the course of his employment with the appellant and is entitled to compensation under the Workers' Compensation Act 1927 (Tas.), as amended ("the Act"). The only question in the case is whether she was "wholly dependent upon his earnings" and entitled to compensation calculated in accordance with r. 2 (2)(a) of the 1st Sch. to the Act or was only "in part dependent upon his earnings" and entitled to compensation under r. 2 (2)(b) of the Schedule. It seems to be agreed that because the husband left assets to which the respondent became entitled on his death the amount of compensation, if calculated under r. 2 (2)(b), will be comparatively small. (at p186)

2. The respondent lived with her husband at Stanley in Tasmania. At the date of her husband's death in 1969 she was aged sixty. The husband received from the appellant a weekly wage of fifty dollars which he used to support himself and the respondent. However, the respondent herself had for a good many years been entitled to some assets, namely, an interest in a farm property and some shares and stock which yielded her income which in the two financial years before the death of her husband amounted to $364 and $280 respectively. In 1958 she had bought a 1954 model Austin car and she used about $200 of her income each year to maintain and run this vehicle. The learned Chief Justice of Tasmania, before whom her action for compensation was heard in the Supreme Court, accepted her evidence that she used the rest of her income to buy "special gifts" for her family and "odds and ends" for the house but not for ordinary household expenses, and found that she looked wholly to her husband to defray all her household expenses and her ordinary living expenses (including clothing), and that (apart from some savings from it) she used her own money solely to maintain her car and for small purchases outside the regular family expenditure. He further found that her husband did not drive or use the car at any time, although he was a passenger in it from time to time, and that he did not contribute to the expenses of running it and did not regard it as a family car. On these findings he held that the respondent was wholly dependent upon the earnings of her husband for her maintenance and support. (at p187)

3. The question of law which arose in these circumstances was whether the fact that the respondent had property and income of her own prevented her from being wholly dependent on her husband for her support. The learned Chief Justice of Tasmania held that it did not, because she used her income for her private purposes outside the ordinary family expenditure and did not in fact contribute any of it to the maintenance of the family. The reference to family income and family expenditure that is to be found in some authorities is an echo of some remarks made by the Earl of Halsbury L.C. in Main Colliery Co. Ltd. v. Davies (1900) AC 358 . His Lordship there rejected an argument that the question of dependency had to be determined by reference to the standard of living in the neighbourhood and in the class to which the workman belonged, and said (1900) AC, at p 362 : "What the family was in fact earning, what the family was in fact spending, for the purpose of its maintenance as a family seems to me to be the only thing which the county court judge could properly regard ..." Lord Halsbury spoke of the family earnings and the family spending because the case was one in which the deceased workman, a son, had contributed his earnings to a fund made up of the wages earned by the various member of the family, and upon which the whole family relied for its support. His words were appropriate to the facts of the case before him, but he was not intending to suggest that a wife who applied her own money in buying some of the things necessary for her own support, for example, her own clothing, should be treated as wholly dependent on her husband's earnings because she did not contribute to a family fund. A reference to family expenditure and a family fund may in some cases only distract attention from the statutory test: was she "wholly dependent upon his earnings"? (at p187)

4. The word "dependent" is not defined in the Act, although there is a definition of "dependants" which does not assist in deciding the present question. However, in its relevant sense, the adjective "dependent", as defined in the Oxford English Dictionary, means that the person to whom it is applied "depends or has to rely on something else for support, supply, or what is needed". The word, as this definition shows, is capable of different shades of meaning. It may mean "relying for support", so that it connotes actual reliance, or "having to rely for support", so that it connotes not only reliance in fact but a need to rely for support. The question whether a woman who has property or income of her own but who is in fact entirely supported by her husband can be said to be wholly dependent upon his earnings involves the further question in which of those senses the word is used in the Act. (at p188)

5. It has been held that the fact that a wife was in receipt of earnings of her own does not necessarily mean that she was not wholly dependent on her husband, for her employment may have been only intermittent or casual, and the probability may have been that it would not have continued in the future: Hodges v. Scott's Provision Stores Pty. Ltd. (1964) NSWR 887 ; Borson v. C.A. Hine & Co. Pty. Ltd. (1965) WAR 19 . That does not, however, assist in determining the present case where the respondent has owned her property for a number of years and the proper inference was that she would continue to derive regular income from it. In New Zealand the view has been expressed that a wife who has funds of her own but who does not in fact use any of them for her own maintenance or for household expenses may be regarded as totally dependent on her husband's earnings: McFayden v. Gillooly and Brown (1925) NZGLR 194, at p 195 ; Orr v. Attorney-General (N.Z.) (1968) NZLR 1080, at p 1082 . In both of those cases, which were decisions of judges of first instance, the remarks were obiter. There seems to be no decision of an appellate court directly on the point. In Pryce v. Penrikyber Navigation Colliery Co. Ltd. (1902) 1 KB 221 , where it was held that the fact that money came to a widow on the death of her husband could not be taken into consideration in deciding whether she was wholly dependent, the members of the Court of Appeal did make some remarks as to the meaning of the words "wholly dependent". Collins M.R. said (1902) 1 KB, at p 223 : "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." Stirling L.J. said (1902) 1 KB, at p 224 : "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." These words of Stirling L.J. suggest that a woman will not be wholly dependent on her husband's earnings if she had some other source to which she could look for maintenance, even if she did not resort to that other source, but the statement by Collins M.R. might be thought to express a different view, and is at least ambiguous. Both of these passages were cited, with apparent approval, in Hodgson v. West Stanley Colliery (1910) AC 229, at p 239 , by Lord Shaw of Dunfermline, who apparently saw no conflict between them. In truth it seems to me that these judges did not have in mind the question whether "dependent" in the statutory provision meant "in fact relying for support" or "having to rely for support". (at p189)

6. Although there is little authority on the question that now falls for decision, it has repeatedly been emphasized, in cases in which workers' compensation legislation similar in effect to that of Tasmania has been considered, that the question of dependency is governed by factual and not by theoretical considerations. It has been held that a mother may be dependent on a son who has no legal obligation to maintain her but who in fact contributes to her support: Hodgson v. West Stanley Colliery (1910) AC 229 . On the other hand, a wife would not be dependent on her husband simply because she had a legal right to be supported by him: New Monckton Collieries Ltd. v. Keeling (1911) AC 648 . The fact that a daughter was physically able to support herself by her own exertions did not prevent her from being held to be wholly dependent on her father: Simms v. Lilleshall Coal Co. (1917) 2 KB 368 . The effect of the authorities was summed up in a sentence by Fullagar J. in Fenton v. Batten (1948) VLR 422, at p 423 , when he said: "If the evidence establishes that the alleged 'dependant' relied or relies on another as the source, wholly or in part, of his or her means of subsistence, then dependency is established." The principle underlying these authorities is that it is the actual fact of dependence or reliance on the earnings of another for support that is the test. It follows that the fact that a woman has some property and income of her own does not prevent her from being wholly dependent on the earnings of her husband, if in fact she wholly depends on those earnings for her support, and does not partly support herself out of her own resources. I do not expect that if this view is accepted there will be many claims for workers' compensation made by wealthy widows, for in the nature of things it is unlikely that a woman of substantial wealth would in fact wholly depend on the earnings of her husband for her support On the other hand, it seems to accord with the policy of the Act to hold that a woman who in fact wholly depended on the earnings of her husband for her support should be compensated accordingly even if she has some property and income of her own. (at p190)

7. The argument on behalf of the appellant, however, rested not so much on the fact that the respondent had money available for her own support as on the way in which she used it. The appellant's submission was that the respondent did in fact use her income in partly supporting herself. It was submitted that the provision of an appropriate means of transportation forms an essential part of a person's maintenance and support and that the respondent, in providing herself with her own means of transportation, was assisting to support herself. I cannot agree with this contention. Although nowadays a motor car may be regarded as a necessity by many people in quite humble circumstances it would not be right to decide this case by reference to the standard of living which is assumed to prevail in the community or any section of it. Such an approach would be inconsistent with Main Colliery Co. Ltd. v. Davies (1900) AC 358 . The standard of support is set by the parties themselves. In my opinion the proper inference to be drawn from the evidence in this case is that the respondent and her husband regarded the car as a luxury which the respondent's small means enabled her to afford. Having regard to the findings made in the Supreme Court I would conclude that the respondent's husband in fact supported her entirely, although she provided something additional for her own pleasure or comfort, going beyond what she and her husband thought necessary for her support. Although the respondent had some means of support, she in fact depended entirely on her husband's earnings for her support. (at p190)

8. In my opinion it was right to hold that the respondent was wholly dependent upon the earnings of her husband. I would dismiss the appeal. (at p190)

STEPHEN J. The respondent, widow of a deceased employee of the appellant, and a "dependant" of her late husband within the meaning of the Workers' Compensation Act 1927 (Tas.), sought an award of compensation following his death in compensable circumstances. (at p190)

2. During the lifetime of her husband she had relied upon his earnings, half of which he gave her each week, for the provision of all ordinary housekeeping expenses and the expenses of her personal maintenance and her application for compensation was made on the footing that she had been wholly dependent on his earnings. She had a small private income which she used in maintaining and meeting the running expenses of a motor car which she owned and which she alone drove, her husband travelling in it occasionally as a passenger. She also used it to buy presents and other small purchases outside the scope of regular family expenditure. (at p191)

3. The Tasmanian Act, like the legislation of other States, distinguishes between the case of the dependant of a deceased worker "wholly dependent upon his earnings" and that of a dependant only "in part dependent upon his earnings". If the worker dies in compensable circumstances the former class of dependant is entitled to a substantial lump sum, calculated according to a mathematical formula regardless of the actual pecuniary loss suffered as a result of the worker's death and which, in the present case, would amount to over $11,000; the latter class of dependant, only in part dependent upon the worker's earnings, is entitled to such a sum as is reasonable and proportionate to the injury to that dependant, but not in any event exceeding the amount which would have resulted from the application of the above formula. If, as in the present case, the deceased worker, who was aged sixty-six, is near the end of his working life the pecuniary injury to the respondent flowing from his death will be relatively small if she be regarded as only partly dependent and an award of compensation, calculated on the basis appropriate to partial dependency, will be very much less than the amount produced by the formula calculation applicable to cases of total dependency, which is unrelated to actual pecuniary loss and is unaffected by the age of the worker or of the dependant. This will be so even if the extent of partial dependency is very substantial, as it must be in the present case. (at p191)

4. The only matter in issue before the learned primary judge, Burbury C.J., was whether the respondent was wholly dependent or, on the contrary, only in part dependent upon the deceased's earnings. His Honour held her to be wholly dependent and on this appeal the only ground relied upon by the appellant is that, by reason of her possession of private means of her own, the respondent should have been held to be no more than in part dependent upon the earnings of the deceased. (at p191)

5. The question, then, is whether the possession of private means by this respondent prevents her, in the circumstances, from being wholly dependent for the purposes of the Act; the respondent contends that critical to the answer to this question is the fact that the use made of her private means was solely for her private purposes and not for housekeeping expenses or for her personal maintenance, for which she relied upon her husband's earnings. Full dependency is unaffected by the possession of private means, it is said, if the dependant continues to rely on the worker's earnings for what may perhaps be described as her basic maintenance and support. (at p192)

6. The question arises both because of the, in one respect, uninformative nature of the definition of "dependants" in the Act, a definition akin to that in corresponding legislation in other States and in the United Kingdom and which Warrington L.J. described in Peart v. Bolckow, Vaughan & Co. (1925) 1 KB 399, at p 412 , as "hardly a definition at all", and also because the Act contains no definition of "wholly dependent" or "in part dependent". "Dependants" is so defined as to make it clear enough upon what a member of a worker's family must be dependent, namely his earnings but is silent concerning that for which the member of the family must depend upon those earnings; hence this appeal. (at p192)

7. The particular problem here in question seems seldom to have arisen in the past; however, over the years, in the course of considering quite distinct problems to which the legislation has given rise, courts have described that for which reliance is placed on the deceased's earnings in a variety of ways, ranging from narrow concepts, such as the "necessaries of life": Main Colliery Co. Ltd. v. Davies (1900) AC 358, at p 365 , through phrases such as "her means of subsistence", "the means of living", and "support and maintenance" to "what the family is in fact spending for the purpose of its maintenance as a family ... not restricted to the ordinary necessaries of life": Leete v. Piccadilly Nu-Fabrics Pty. Ltd (1969) WAR 188, at p 193 . (at p192)

8. If dependence refers only to reliance upon a worker's earnings for provision of the necessities of life it will follow that a wife with private means whose husband, from his earnings, provides those essentials, is "wholly dependent" upon those earnings although she may improve her standard of living to a greater or lesser degree by recourse to her own means. This, as I understand it, is an important aspect of the respondent's argument on this appeal. Again it would seem that a wife will be wholly dependent if she subsists on her husband's earnings and either allows her private income, however large, to accumulate or disposes of it to charity; so long as she does not employ it in assisting her husband to maintain her at some minimum or acceptable standard her total dependency will not, it would be contended, be jeopardized. (at p192)

9. That legislation directed towards compensating the families of workers for the loss suffered by the death of the worker should produce such results may seem surprising; the well-to-do wife who, on her husband's death, is left with ample means of her own will nevertheless be treated as fully dependent so long, and so long only, as she refrained, in his lifetime, from assisting him in supporting her. Not so the wife who, from her own income from investments or, more probably, from her earnings, regularly contributes to the expenses of family maintenance; by doing so she forfeits the status of a wholly dependent wife in favour of only partial dependency. (at p193)

10. Uninstructed by authority, I would not have so interpreted the legislation nor do the authorities, to my mind, compel such a conclusion, rather the reverse. (at p193)

11. Since neither the definition of "dependants" in s. 3 of the Act nor the prescription, by r. 2 (2) of the 1st Sch. to the Act, of the different methods of calculating compensation for partial dependency and total dependency cast any light on the matter, recourse must be had to the ordinary meaning of the noun "dependants" and the adjective "dependent". For my part I have been unable to conclude that a wife, who has a modest, but nevertheless not insignificant, private income available to her free of legal and, perhaps, even strong moral claims requiring to be satisfied out of it, is, in any ordinary sense of the word, wholly dependent upon her husband's earnings, and this regardless of what use she makes of her private income. (at p193)

12. A wife placed in such a position cannot, to my mind, be regarded as in fact depending in whole upon those earnings. Wholly to depend, or rely (Lord Halsbury treated the two terms as interchangeable in the Main Colliery Case (1900) AC, at p 361 ) upon something involves, as I understand the phrase, having no other source to look to upon which reliance may be placed and from which assistance of the relevant kind may be obtained. To say this of a wife's reliance upon her husband's earnings when she has in fact an independent income, large or small, seems to me quite inappropriate. (at p193)

13. It has been held in a number of cases that it is inappropriate to so describe a wife who is in regular employment so that her earnings are more than "intermittent earnings ... devoted to specific purposes of the family life": Cockatoo Docks & Engineering Co. Pty. Ltd. v. Walsh (1956) WCR 133, at p 134 per Owen J. The cases of New Monckton Collieries Ltd. v. Keeling (1911) AC 648 , Baird & Co. Ltd. v. Birsztan (1906) 8 F 438 , O'Grady v. C.G. Wakefield & Co. Ltd. (1930) 4 WCR 33 , and Borson v. Hine (1965) WAR 19 , are all instances, in various jurisdictions, of a wife's earnings affecting her claim to dependency. In such cases the task of the court was described by Sugerman J. in Hodges v. Scott's Provision Stores Pty. Ltd. (1964) NSWR 887, at p 893 as follows:

"The factors here, whose effect upon dependency at the
time of death requires to be assessed by the tribunal of fact as
a matter of degree, include such factors as the enduring or
intermittent or casual nature of the wife's employment, the
probabilities of it having continued into the future had the
husband not died, and the probable duration of its continuance."

Because the court may look to the future: Peart v. Bolckow; Vaughan & Co. (1925) 1 KB 399 ; Fenton v. Batten per Fullagar J. (1948) VLR 422, at p 424 - it may conclude that earnings would not have long continued had the worker survived, so that the wife's rate of earnings at the date of his death, not forming an enduring part of the pattern of their life together, may not, in all the circumstances, negate dependency: Borson v. Hine & Co. Pty. Ltd. (1965) WAR 19 ; Blum v. Lipski (1938) VLR 247 . But if this is not the case her earnings will operate to deny total dependency and, if sufficiently large, will deprive her of all dependency upon the worker. (at p194)

14. No different principle should apply if the wife's means are derived from income from property or a pension rather than from her earnings. Indeed the very factors that sometimes enable a court to disregard a wife's own earnings, their temporary character, are less likely to apply if a wife's income is derived, as in the present case, from income-earning assets of an enduring nature. The case, therefore, of a wife having an income from investments is, to my mind, even more clearly one in which total dependency cannot be found. Of course instances may occur, of which a daughter's contributions in Byles v. Pool (1909) 2 BWCC 484 is an example, in which the income is so small that it may be disregarded in deciding the question of fact as to dependency, but this is clearly not such a case, nor was it decided upon this ground. (at p194)

15. It is said that the effect on dependency is different if a wife's earnings or income is spent upon the provision of her necessary maintenance rather than upon what may be classed as luxuries, things clearly in excess of what she requires for ordinary decent living; as I understand it, the distinction is founded upon the view that only in the former case is there a diminution in the extent of the husband's support of his wife, without such a diminution she remains wholly dependent upon his earnings. (at p195)

16. Certainly cases where a wife has sought employment so as to provide some new item of capital equipment for the family over and above their daily needs have sometimes been held not to have affected her dependency but this has been because the employment, due to its particular purpose, was inherently likely to be temporary and could therefore be discounted accordingly in looking to the future. As already mentioned this temporary aspect of earnings from employment will not usually apply to income from property. (at p195)

17. Again, as already mentioned, a number of the reported cases do refer to that for which reliance is placed upon the worker's earnings in terms suggesting that some minimum standard is in question. These decisions were not, however, in any way concerned with the present problem and the phrases used, appropriate enough in a general way, should not be taken out of context so as to found some rule which treats as relevant to dependency all support up to a certain standard but as quite irrelevant any further support after that standard is achieved. Indeed to so state the matter is to reveal what I regard as one substantial objection to the adoption of the respondent's contention; it necessarily involves the determination in each case of an appropriate standard of living to apply to the circumstances of the particular worker and his family; only then will it be possible to determine whether it is on the worker's earnings that reliance has been placed for the provision of that standard of living. This is the very process which, in the absence of amending legislation such as was enacted in the United Kingdom in 1923, the courts, ever since the Main Colliery Case (1900) AC 358 in 1900, have rejected as forming no part of their task in determining claims for compensation under this workers' compensation legislation. As Fullagar J said in Fenton v. Batten (1948) VLR, at p 424 , "Questions of 'scale of living' do not enter into the matter." (at p195)

18. Moreover the authorities do contain passages indicating the inappropriateness of such an approach to dependency, although decisions on the point here in issue are rare, as Burbury C.J. has pointed out. In the Main Colliery Case (1900) AC 358 itself the language of Lord Davey is inconsistent with the concept that dependency is to be determined by the source of part only of a dependent's total support or living standard. He said (1900) AC, at p 363 that the primary judge had put the matter extremely well when he had said that the parents were in part dependent upon their young son's earnings because they "did receive and depend on the son's wages as a part of their income or means of living". His Lordship proceeded: "Observe, my Lords, the County Court judge says 'as a part of their income or means of living' by which I understand him to mean their actual income or means of living" and concluded by agreeing with the Lord Chancellor that to look at actual income and actual expenditure was the correct way to construe the Act, rather than introducing what he called "some vague and uncertain standard which it is impossible to lay down with precision". His Lordship was not there restricting himself to any particular part of the means of living but was concerned to look at the parents' entire income or means of living to determine whether any of it was provided by the son. Again in Pryce v. Penrikyber Navigation Colliery Co. (1902) 1 KB 221, at p 224 , Stirling L.J. described the test to be applied in determining whether a widow had been wholly dependent upon the worker as being "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". This passage was adopted by Lord Shaw in Hodgson v. West Stanley Colliery (1910) AC 229, at p 239 , who referred to the soundness of the view there expressed - see also Maori Trustee v. New Zealand Shipping Co. Ltd. (1952) NZLR 536, at p 538 . (at p196)

19. In the present case Burbury C.J. concluded that, because the test of dependency was one of factual support and not legal entitlement or necessity, the possession by the respondent of a private income did not detract from her status as wholly dependent upon the deceased so long as she used it for purposes outside the normal family budget; he relied upon what was said in that regard by Frazer J. in the New Zealand Court of Arbitration in McFayden v. Gillooly & Brown (1925) GLR 194 . The emphasis which the cases, from the decision in the Main Colliery Case (1900) AC 358 onwards, have placed upon factual support has, in my view, not been concerned at all with the present aspect of dependency but rather with denying to an existing legal obligation to maintain any overriding significance and with discounting the suggestion, made in Simmons v. White Brothers (1899) 1 QB 1005 , that the courts should embark upon a consideration of what standards of living might be thought appropriate to the dependants of a particular worker so as to determine questions of dependency. (at p196)

20. In McFayden's Case (1925) GLR 194 it was, on the facts as found by Frazer J., unnecessary for the determination of the case for him to express any view concerning the dependency of a wife who, having some independent means, chooses to live exclusively off her husband's earnings since his Honour had concluded that the applicant there in question had in fact spent some of her own moneys on her maintenance. However, in an unreserved judgment, he did express the view that, had that not been the case, she would have been totally dependent notwithstanding that she had some 3,000 pounds on fixed deposit, the interest on which was apparently accumulated. He did so in reliance upon the earlier New Zealand case of Young v. Macklow (1909) 11 GLR 621 . That was a very different case, in which a father alleged partial dependency upon a son's earnings but failed because his own earnings were shown to be ample to maintain his wife and himself and were in fact the exclusive source of their maintenance, the son's periodic gifts of money not being precisely accounted for but being, apparently, deposited by his mother, together with other regular savings, to the credit of a savings account to which she continued to add further deposits even after her son's death. In a sense that case is the converse of the view expressed in McFayden's Case (1925) GLR 194 ; the applicant failed because he failed to prove any dependency, indeed he was shown to be in no way dependant upon his son's earnings; it is not, I think, an authority for the quite different proposition enunciated by Frazer J. (at p197)

21. McFayden's Case (1925) GLR 194 has recently been cited with approval by Thomson J. in Orr v. Attorney-General (N.Z.) (1968) NZLR 1080 , a decision of the New Zealand Compensation Court, but has not, it seems, otherwise been the subject of consideration. Without in any way doubting the correctness of the actual decision in McFayden's Case (1925) GLR 194 and the reasons which led Frazer J. to it, I do not consider that the views expressed by him elsewhere in his judgment and applicable to the present case should be regarded as correctly stating the law. (at p197)

22. The question of fact as to claimed dependency and its extent having arisen, the whole of the respondent's means at the date of death of her husband should, in my view, have been taken account of; it appearing that the respondent possessed means of her own apart from reliance upon the worker's earnings, those means should have been taken into account in determining the extent of her dependency. The established principles already referred to, which may, in appropriate circumstances, require that a claimant's means be discounted or disregarded, are inapplicable to the present case. In determining the extent of dependency, it will be irrelevant to determine either to what extent the respondent had recourse to her own means or whether those means were employed to provide a part of the necessities of life or only some additional comforts and pleasures. In so referring to the respondent's means I do not, of course, intend to include any unemployed earning capacity which she may have possessed; its possession will not normally constitute a bar to a finding of full dependency - Simms v. Lilleshall Coal Co. Ltd. (1917) 2 KB 368 - although an able-bodied young man who is wholly reliant upon his father's earnings only because of a disinclination to seek available employment may receive less consideration from the courts - per Lord Ardwall in Moyes v. Dixon (1905) 7 F 386, at p 389 , and per Bankes L.J. in Simms' Case (1917) 2 KB, at p 371 - than did the dutiful daughter in Simms' Case (1917) 2 KB 368 . (at p198)

23. For the reasons stated I would allow this appeal. (at p198)

ORDER

Appeal dismissed with costs.