Chedzey v Collex Waste Management Pty Ltd [1999] NSWCC 19; (1999) 17 NSWCCR 702 (12 April 1999)

Last Updated: 25 April 2000

[1999] NSWCC 19; (1999) 17 NSWCCR 702

CHEDZEY v COLLEX WASTE MANAGEMENT PTY LTD

& OTHERS

[1999] NSWCC 19

Compensation Court of New South Wales: Campbell CJ

19 February 1999 (H)

12 April 1999 (J)

Workers compensation - Persons entitled to compensation - Dependants - Apportionment of compensation - Dependants who recover damages at common law in respect of deceased worker cannot recover compensation - Court or Public Trustee to determine apportioned shares of compensation payable to such dependants - Workers Compensation Act 1987 (NSW), s 25, s 29, s 151Z

Workers compensation - Persons entitled to compensation - Dependants - Dependants who recover damages for nervous shock not precluded from recovering compensation - Workers Compensation Act 1987 (NSW), s 25, s 151Z

Workers compensation - Persons entitled to compensation - Dependants - May include de facto partners not living with deceased at time of death - Workers Compensation Act 1987 (NSW), s 3 "dependants" - Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 4 "dependants"

Words and phrases - "lived with the worker as the worker's husband or wife" - Workers Compensation Act 1987, s 3 "dependants" - Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 4 "dependants"

T.R. Edwards, for the applicant

T.A. Gotterson, for the first respondent

B.G. McManamey, for the second, third and fourth respondents

C. Stomo, for the fifth respondent

G.I. Foster, for the sixth, seventh and eighth respondents

Cur adv vult

1 CAMPBELL CJ: This matter comes before the Court as a claim by alleged dependants of the late Robert Tyler Dolman for compensation in respect of his death pursuant to the provisions of the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998 (collectively referred to as "the Workers Compensation Acts").

2 Robert Tyler Dolman was employed by Collex Waste Management Pty Ltd as a waste removal truck driver. He was involved in a motor cycle accident on 24 February 1995 whilst on a journey between his place of employment and his place of abode. Mr Dolman's motor cycle collided with a motor vehicle at an intersection at Rathmines. He died on 2 March 1995 as a result of injuries sustained in this accident.

3 The following persons claim to be entitled to a share of the compensation payable as a result of Mr Dolman's death:

(a) Donna N. Chedzey, the de facto wife of the deceased, the applicant in these proceedings.

(b) Nikki Lee Stewart, born 3 August 1985, a daughter of the deceased and his divorced wife Sherry Yvette Stewart, the third respondent.

(c) Dylan Tyler Stewart, born 15 February 1987, a son of the deceased and his divorced wife Sherry Yvette Stewart, the fourth respondent.

(d) Julie Francis, the mother of the deceased worker, the fifth respondent.

(e) Christine Boyle, an ex-de facto wife of the deceased worker, the sixth respondent.

(f) Kayne Robert Dolman, born 27 July 1988, a son of the deceased worker and Christine Boyle, the seventh respondent.

(g) Ashley Dolman, born 29 March 1991, a daughter of the deceased worker and Christine Boyle, the eighth respondent.

4 Mr Gotterson, counsel for Collex Waste Management Pty Ltd, the first respondent, accepts that the deceased worker died in circumstances which entitled his dependants to compensation under the Workers Compensation Acts.

5 The issues left for me to determine are those relating to dependency and apportionment.

6 Mr T.R. Edwards of counsel appeared for the applicant.

7 Mr T.A. Gotterson of counsel appeared for the first respondent.

8 Mr B.G. McManamey of counsel appeared for the second, third and fourth respondents.

9 Mr C. Stomo of counsel appeared for the fifth respondent.

10 Mr Foster of counsel appeared for the sixth, seventh and eighth respondents.

11 Counsels' addresses have been recorded and it is therefore unnecessary for me to refer to each submission, merely to ensure that it is noted.

12 It is clearly the position that at least Ashley Dolman was totally dependant on Mr Dolman at the time of his death. Mr Gotterson did not try to persuade me to the contrary. There being at least one person wholly dependent upon Mr Dolman at the time of his death the amount of compensation payable is determined by s 25 of the Workers Compensation Act 1987 (the 1987 Act).

13 S 25 provides:

(1) If death results from an injury, and the worker leaves any dependants wholly dependent for support on the worker, the amount of compensation payable by the employer under this Act shall be:

(a) the amount of $225,300 [as at the relevant date];

(b) in addition, an amount of $40.70 per week [as at the relevant date] in respect of:

(i) each dependant child of the worker under the age of 16 years;

(ii) each dependant child of the worker being a student over the age of 16 but under the age of 21 years.

14 It is accepted by all counsel that Mrs Stewart, in respect of whom no claim was made, was not dependent upon Mr Dolman at the time of his death. Further, it was also accepted that Nikki Lee Stewart and Dylan Tyler Stewart cannot recover compensation under the Act because they have accepted, through their mother, and been paid common law damages in respect of the death of their father: s 151Z of the 1987 Act.

15 Mr Edwards also argued that Mrs Francis could not recover under the Workers Compensation Acts because she had received damages in a common law action for nervous shock following the death of her son. However, that was not an action that arose from the death of Mr Dolman, the basis of the claim for compensation under the Workers Compensation Acts, but rather an action based upon personal injury to Mrs Francis, albeit that personal injury was caused by the event of her son's death.

16 Mr Edwards has submitted that Mrs Boyle, as a former de facto wife of Mr Dolman not living with him at the time of his death, is not a dependant as defined in the Workers Compensation Acts. Relevantly the definition may be stated as follows:

dependants of a worker means such of the members of the worker's family as were wholly or in part dependent for support on the worker at the time of the workers death..., and includes:

(a) ...

(b) a divorced spouse of the worker so dependent; and

(c) a person so dependent who ... although not legally married to the worker, lived with the worker as the worker's husband or wife on a permanent and genuine domestic basis.

17 The first submission was that the words "at the time of the worker's death", governed the subsequent inclusions; however, it is clear that the words relate to the concept of dependency for support.

18 The second submission was that the words "lived with the worker" as a matter of construction of the definition were, in effect, "was living with the worker" or "lives with the worker". Such a meaning is open on the wording of the definition, however, an examination of the history of the definition demonstrates that that was not the intention of the legislature. Prior to the Workers' Compensation (Amendment) Act 1981, the relevant definition in the Workers Compensation Act 1926 read:

A woman is dependent who for not less than three years immediately before the worker's death, although not legally married to him, lived with him as his wife on a permanent and bona fide domestic basis.

19 That Act, by introducing the present language, changed three things:

First, it made the provision gender neutral.

Second, it removed the specified period of three years.

Third, it removed the words "immediately before the worker's death".

Had it been intended to leave in place the requirement that the de facto spouse be living with the deceased at the time of his death these words would not have been deleted.

The Second Reading Speech makes it clear that it was intended, in the words of the then Attorney-General, to avoid discrimination on the basis of, relevantly, marital status. To include as a dependant a person who was a divorced spouse but not one who had formerly lived with the worker on a permanent and genuine domestic basis would be to so discriminate.

I should for completeness note that the use of the word "lives" in the quotation in the Speech of the definition as it would read in its amended form is clearly a misprint or other error.

20 As the later discussion will explain, I consider that all the alleged dependants were at least partly dependent for support upon Mr Dolman, thus it is clear that at least the applicant, Mrs Francis, Mrs Boyle and the two Dolman children are to be taken into account in the apportionment which I shall make of the compensation payable under s 25(1)(a) of the 1987 Act.

21 There remains, however, the issue as to whether the two Stewart children are to be taken into account on that apportionment, the amounts apportioned to them being unrecoverable, or whether they should be ignored and the whole sum of $225,300 apportioned amongst the others.

22 Mr Foster submitted that since s 25(1)(a) provides that the compensation payable by the employer shall be $225,300 that remains the figure to be apportioned among the dependants who are to share in the sums awarded even though there may be other dependants who would have so shared had they not recovered damages and been excluded by s 151Z of the 1987 Act from so sharing. Mr Edwards, Mr McManamey and Mr Gotterson submitted that I should determine an apportioned share of the $225,300 for the two Stewart children as well as the others. The result of this being that the apportioned shares of the others would together be a smaller sum than the $225,300.

23 Counsel did not refer me to authority upon the point, nor was it suggested that cases such as Medaris v Lars Halvorsen & Sons Pty Ltd (1943) 44 SR (NSW) 71 or Watson v Newcastle City Council [1962] HCA 6; (1962) 106 CLR 426, dealing with the splitting of dependants' claims and the interrelation of compensation claims and common law claims, were of assistance.

24 As the matter was argued I consider that the correct view is that requiring apportionment of shares to all dependants.

25 Whilst it is true that s 25(1)(a) provides that the compensation payable where there is a dependant wholly dependent is a specific sum without regard to the number of dependants who may have an entitlement to all or portion of that sum, s 29(1) of the 1987 Act provides that the compensation payable "to each dependant" may be apportioned by the Compensation Court or by the Public Trustee. The section does not limit the apportionment to dependants who have a right to recover compensation.

26 Further, s 151Z does not provide that a worker, which term includes a dependant, who has firstly recovered damages has not been entitled to compensation but rather that such a worker is not entitled to "recover compensation under this Act".

27 The notion that the Court should find an apportioned share to which a dependant would have been entitled does not present an obstacle. Indeed, as is pointed out in Luntz, H Assessment of Damages for Personal Injury and Death 2^nd ed, Butterworths, Sydney, 1983 at 422, in a Compensation to Relatives Act 1897 claim where a beneficiary has not claimed "the total damages should exclude the loss of the beneficiary for whom no claim is made, as that after apportionment each of the claimants should not receive any greater amount than he or she would have received if all had claimed". Thus, depending upon how the common law claim is presented, a judge or jury may be required to undertake the exercise of identifying a share and excluding it from the final amount awarded.

28 I, accordingly, need to determine an apportioned share for the two Stewart children as well as the other dependants I have named above.

[At [29] to [54] his Honour considered the evidence concerning the employment history of the deceased worker and of the relationships he had had with the various alleged claimants for death benefit compensation.]

55 Counsel have put the issue of apportionment to me in a very broad way and the evidence lacks much of the detail that would normally be given in a Compensation to Relatives Act action or where the primary issue is the quantification of partial dependency claims under the Workers Compensation Acts.

56 Whilst, as Egan A-J pointed out in Wratten v Kirkpatrick [1996] NSWCC 2; (1996) 15 NSWCCR 32, the exercise of apportionment involves the examination of all relevant facts, it is conventional for conclusions to be reached and expressed in very broad terms. For example, in Warilla Timber & Hardware Pty Ltd v Newtown (1995) 11 NSWCCR 546, Mahoney A-P, in dealing with a claim for partial dependency noted the "approach which conventionally has been adapted in relations to calculations of this kind in other related areas ...". In Wawrzynczyk v Ziemelis [1968] 3 NSWR 585, the Court of Appeal having assessed damages in a Compensation to Relatives Act claim itself, then stated the apportionment between widow and children in two lines. In Gillett v Callagher (1962) 36 ALJR 72 the High Court having reversed a decision that a widow and two children had suffered no pecuniary loss contented itself with the statement:

In all the circumstances and making the best estimate we can on the rather meagre evidence which was given we think that a sum of £12,000 would be a proper amount to award the plaintiff by way of damages, that sum to be apportioned as follows: £8,000 to the plaintiff and £2,000 to each of the children.

57 Despite these considerations, I think it appropriate in this matter to set out, in a broad way, my estimations of the sort of figures which might reasonably be awarded in respect of each dependent if the matter was being dealt with as one purely of partial dependency. This process can only be a stepping stone to the ultimate apportionment, which is, of course, of a specific sum.

58 The applicant and Mr Dolman had been together for some seven or eight months and had set up home together. She had lost her employment because of lack of work and had not yet obtained social service payments. If she were the sole dependant, the proper finding would probably be that she was wholly dependent and she would then be entitled to the whole sum: see Grubisich v Broken Hill South Ltd [1932] 6 WCR (NSW) 216. However, that is not the situation and future possibilities have to be to considered. It is likely that the applicant would have returned to some part-time work. This would probably reduce the amount by which she would have benefited from Mr Dolman's income. He had a net income of $470. He paid $74 a week in child support and had a legal obligation to pay a further similar sum. I think it reasonable to conclude that the applicant would probably have benefited to the order of $200 per week. On the evidence, prospects of advancement by Mr Dolman do not arise. The period from the date of Mr Dolman's death to when he turned 65 would have been approximately 36 years. At 5 per cent, the present value of $200 a week for that period is $176,000.

59 There are many discounting factors that would need to be applied to that sum. One that would loom large is the possibility that the relationship, like the two before it, might come to an end after a few years.

60 Mr McManamey submitted that an appropriate apportionment to the Stewart children would be $25,000 for Nikki and $30,000 for Dylan. He approached the issue as, in effect, a calculation made on a partial dependency basis of $50 per week for each child over 10 and 12 years respectively. I consider this to be far too high an assessment. Whilst the children's legal entitlements and the early steps taken by Mrs Stewart establish that they are partially dependent, once one turns to look at the reality or likelihood of support being made available, the prospects of any such support look remote indeed. The evidence of Mrs Stewart, including that of the very rare and truncated visits to the children, satisfy me that Mr Dolman was unlikely to provide any support in the future. There is the possibility that Mrs Stewart's situation may alter and a call then made upon the father or that, later in their lives, he might make some gift or give some help to the two. The sum to be allowed for such a possibility could not be large.

61 Mr Stromo, very properly, conceded that the apportionment ultimately made to Mrs Francis would be "rather small". However, in the context, that is not the $1,000 or $2,000 suggested by Mr Gotterson. Mrs Francis, on the evidence, had no other person likely to be able to assist her as she aged. It appeared from her manner, as much as what was said, that her daughter was unlikely to provide such assistance. Mr Dolman had performed handy man, indeed more than handy man, type activities for her in the past and I think it likely that he would have continued to do so in the future. Considering Mr Dolman's situation and that of Mrs Francis, I think it unlikely that he would have provided her with funds in the future; however, there would have been real services such as to entitle her to be considered a partial dependent. The measurement of the present value of the services is not easy.

62 Mrs Boyle had lived with Mr Dolman for some five or six years and she was the mother of two children of which he was the father. They separated on amicable terms and he continued to see her and the children. He accepted responsibility for loans which had provided, amongst other things, the family furniture and car which Mrs Boyle drove until it was damaged. He had provided her with a Visa card and, it would seem, only withdrew it because she was overspending the limit. It seems to me probable that Mr Dolman would have continued to provide a measure of support to Mrs Boyle as the mother of his children. It would, I think, be unreasonable to expect such support to continue beyond the time when Ashley reached 18 years.

63 Mr Dolman was paying $150 a month off the loans. So far as I can see from the documents tendered an attempt to have these payments accepted as part-maintenance payments failed. There is a real possibility that Mr Dolman would have continued to provide benefits of the order of $150 a month to Mrs Boyle for the period I referred to above. The present value of such payments at 5 per cent is $18,525. I include in this the odd $10 Mr Dolman spent from time to time for groceries and the like.

64 At the time of his death Mr Dolman was paying $74 per week maintenance for Ashley as required by the Child Support Agency. Mrs Boyle's application in respect of Kayne was not acted upon because she had not provided a birth certificate. Her evidence, which I accept, is that Mr Dolman said that if she pursued an order for Kayne he would leave his job and she would have no support. She decided to provide for the children from the $74 and her social security payments. The proper approach, on the evidence, is to conclude that Mr Dolman supported each child to the extent of $37. The present values to age 18 at 5 per cent are $19,584 for Ashley and $17,538 for Kayne. However, the entitlement to claim for Kayne remained. Had Mrs Boyle exercised it at some later time, and Mr Dolman not made good his threat, the values would be $39,168 and $35,076 less the delay in applying.

65 Taking these matters into account and other contingencies which I do not take time to set out, I conclude that the appropriate apportionment for me to order is as follows:

The applicant--$133,000

Nikki Stewart--$5,000

Dylan Stewart--$5,300

Mrs Francis--$10,000

Mrs Boyle--$15,000

Kayne Dolman--$27,000

Ashley Dolman--$30,000

66 Kayne Dolman and Ashley Dolman will also be entitled to weekly payments under s 25(1)(b) of the 1987 Act, as would have been Nikki and Dylan Stewart were they not prevented from recovery of compensation under the 1987 Act.

67 Calculations will need to be made on the matter of interest and there may be submissions as to the orders for payment that should be made. Accordingly, I shall direct that the parties bring in Short Minutes dealing with the matters.

68 My findings may be summarised as follows:

(a) Tyler Robert Dolman died on 2 March 1995 as a result of injuries received whilst on a periodic journey between his place of employment and his place of abode.

(b) Ashley Dolman, a child of the deceased, was wholly dependent for support upon him at the time of his death.

(c) Nikki Lee Stewart, Dylan Tyler Stewart and Kayne Robert Dolman, children of the deceased were at least partially dependent for support upon him at the time of his death.

(d) The applicant, a person who although not legally married to the deceased lived with him as his wife on a permanent and genuine domestic basis, was at least partially dependent for support upon the deceased at the time of his death.

(e) Julie Francis, mother of the deceased, was partially dependent for support upon the deceased at the time of his death.

(f) Christine Boyle, a person who although was not legally married to the deceased lived with him as his wife on a permanent and geniune domestic basis, was partially dependent for support upon the deceased at the time of his death.

(g) No other person was dependent for support upon the deceased at the time of his death.

(h) The compensation payable by the first respondent in respect of the death of the deceased is $215,000 and in addition thereto payments under s 25(1)(b) in respect of Kayne Robert Dolman and Ashley Dolman.

69 I direct that the parties bring in Short Minutes as to the award and orders that should be made including orders relating to interest and manner of payment.

70 The first respondent is to pay the costs of the applicant and all other respondents.

Orders accordingly

Solicitors for the applicant: Thomas Mitchell Partners

Solicitors for the first respondent: Pieterse & Pieterse

Solicitors for the second, third, fourth and fifth respondents: Steven Kouris, Solicitors

Solicitors for the sixth, seventh and eighth respondents: Armstrongs