Kofler v Fantam Pty Limited [2001] NSWCC 59 (3 May 2001)

Last Updated: 5 September 2001

NEW SOUTH WALES COMPENSATION COURT

CITATION: Kofler v Fantam Pty Limited [2001] NSWCC 59


PARTIES:
Judith A Kofler
Fantam Pty Limited


CASE NUMBER: 49116 of 1998 of 2001.00


CATCH WORDS: Entitlements & Liability


LEGISLATION CITED:
s 26 of Workers COmpensation Act
Sch 1.2.1 of Workplace Injury Management Act

CORAM: Quirk J

DATES OF HEARING: 25/07/00, 26/07/00, 07/09/00.

DECISION DATE: 03/05/2001


LEGAL REPRESENTATIVES

FOR APPLICANT: T J Willis instructed by Stephens
FOR RESPONDENT: D R Benson instructed by Burridge Harris & Flynn


JUDGMENT:

1. Judith Anne Kofler, the widow of the deceased worker Oskar Ulrich Kofler, claims lump sum compensation in the maximum amount of $228,550 pursuant to s 26 of the Workers Compensation Act. She claims to have been partially dependent upon the deceased at the time of his death on 22 December 1996. The applicant was born on 10 March 1953 and was thus 43 years of age at the time of her husband’s death. The deceased was born on 11 November 1946 and was thus aged 50 at the time of his death.

2. The Application for Determination as filed, pleaded that the deceased was directly employed by the respondent as a truck driver at the time of his injury in a motor vehicle collision which occurred on 12 December 1996 and which ultimately lead to his death by cardiac arrest 10 days later.

3. The applicant was given leave, after a good deal of evidence had been taken, to amend the pleadings to allege, in the alternative, that the deceased was a “deemed” worker within the meaning of Sch 1.2.1 of the WIM Act. The respondent was granted an adjournment to enable it to meet the amendment.

4. The respondent denies that the deceased was employed or was a deemed worker at the time of his injury. Dependency was also an issue, the applicant living apart from the deceased at the time of his death.

5. The facts surrounding the association between the deceased and the respondent company up until the time of death of the deceased on 22 December 1996, are contained mainly in the evidence of Darryl Baff, the managing director of the respondent company, and in the evidence of Gregory Erald Owens, a solicitor who had once acted for the applicant. Mr Owens had formerly taken instructions from the applicant in respect of possible legal proceedings as a result of the death of her husband, gave evidence which went almost entirely to a telephone conversation he had with Darryl Baff on 22 May 1997, some 5 months after the death of the deceased.

6. In the nature of things, this was inevitably a difficult case for the applicant to discharge the onus of proving that the applicant was either a worker or a deemed worker because the one person who could have cast light on the conversations or arrangements between the deceased and Mr Baff on behalf of the respondent, is the deceased himself. It has therefore been necessary for me to draw inferences based in the scanty evidence that is available as to the nature of the relationship between the deceased and the respondent at the date of injury.

7. Certain facts are undisputed and may be summarised as follows:-

- The respondent company operated a saw mill at Billy’s Creek, near Dorrigo, and sold milled timber, in the main, fencing timber.

- Darryl Baff, the managing director of the respondent company, came to know the deceased, a former resident of Dorrigo and whose brother in-law operated the newsagency in Dorrigo, in about 1995.

- Although the deceased was, in 1995, living in Brisbane with the applicant, he was employed by the respondent company between 7 August 1995 to 19 April 1996 as a truck driver and paid a weekly wage, according to the respondent’s records, of $325.40 per week. For that period when employment is admitted, the respondent received a JobStart allowance in respect to the deceased’s employment from the Commonwealth Government.

- The nature of the work performed by the deceased was described by Darryl Baff in very vague terms but included carting timber “at different times” but “not frequently” and performing odd jobs such as helping to overhaul a tractor.

- Although the deceased was a truck driver by occupation, it seems that he was not required to cart timber regularly for the respondent, as the respondent generally used the services of a haulage company, Munz Haulage of Grafton, to cart its timber products.

8. Even though the deceased’s place of employment was at the respondent’s sawmill at Billy’s Creek near Dorrigo, he continued to live in Brisbane, some considerable distance from Dorrigo. According to Mr Baff’s evidence, even when the deceased was admittedly employed by the respondent company, he spent little time at the respondent’s mill.

9. The respondent company owned an unregistered truck which, according to Mr Baff’s evidence, was “parked at the mill not doing nothing”. It was Mr Baff’s evidence, that at the suggestion of the deceased, the deceased took the truck to Brisbane in order to have it refurbished and re-registered. The truck was registered in the name of the respondent company and bore the name of the respondent company on its side. After the repair o f the truck, the deceased carted loads of timber from time to time for the respondent from Billy’s Creek to Brisbane. Whilst in Brisbane, according to Mr Baff, the deceased would “scout around Brisbane and find some orders” for the respondent company. The deceased had certain contacts in Brisbane, who he introduced to the respondent company, and these contacts ordered building timber from the respondent company which sold at a higher price than fencing timber, the usual product of the sawmill.

10. This situation continued until 19 April 1996 at which time the Commonwealth Government job subsidy came to an end.

11. The respondent’s case is that after 19 April 1996, the deceased and the respondent entered into a different “arrangement”, by which the deceased was given the use of the said truck for his own purposes, in return for carting the respondent’s timber when required. It is further, the respondent’s case that no wages or other monies were paid to the deceased by the respondent after 19 April 1996, except for one occasion when the deceased was reimbursed the sum of $100 which he had spent on fuel and a further $50 when the deceased had requested some money from Darryl Baff.

12. There is no dispute that the respondent company paid for the registration and insurance of the truck before and after April 1996, when the deceased’s employment was said to come to an end. The respondent company also paid for any necessary repairs to the truck and for fuel, up to the time of the deceased’s injury on 12 December 1996.

13. It is the applicant’s case that after 19 April 1996, from which time the deceased did not appear in the records of the respondent, namely its wage book, as an employee, that nonetheless the deceased continued to be employed by the respondent and it is asserted that the deceased was probably thereafter, paid wages in cash.

14. In the alternative, the applicant alleges that the deceased was a deemed worker pursuant to Sch 1.2 of the WIM Act which provides as follows:-

2(1) Where a contract:

a) to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor’s own name, or under a business or firm name), or

b) to perform any work as an outworker,

is made with the contractor, who neither sublets the contract nor employs any worker, the contactor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.

15. On 12 December 1996, the day upon which the deceased sustained injury which ultimately lead to his death, he was carrying a load of timber for the respondent from Dorrigo to Brisbane in the truck owned by the respondent company.

16. It is the respondent’s case that the work done by the deceased in carting the load of timber for the respondent on 12 December 1996 was work incidental to a trade or business regularly carried on by the deceased.

17. Mr Baff’s evidence, was that after April 1996, the deceased carted timber for the respondent company to Brisbane, on “several occasions” but could not be more specific as to the number of occasions. He did say“it was only times when small loads of special timber which was mostly building timber” that the deceased carted timber for the respondent. Mr Baff denied paying the deceased any monies after April 1996, apart from the two occasions referred to above. According to Mr Baff’s evidence, there was no arrangement between the deceased and the respondent company in respect of what the deceased did with the truck after he had delivered a load of timber from Dorrigo to Brisbane. It was Mr Baff’s evidence that the deceased could use it as he wished, on those occasions that he was not carting timber for the respondent. He said on one occasion when the truck “came back” it had some debris on it which indicated to Mr Baff “he (the deceased) may have been carting a bit of steel or stuff like that”. He also gave evidence of a conversation with the deceased in which the deceased asked if he could fit “container pins” to the truck which were in fact, never fitted. In respect to the agreement between the deceased and Mr Baff, Mr Baff said that the deceased “didn’t want a wage, wasn’t paid a wage in that period of time” (referring to the period April to December 1996). However, when Mr Baff was asked by his counsel whether there was any payment made to the deceased in cheque, cash or any other form between 19 April 1996 and 12 December 1996, Mr Baff responded “I don’t think so but I don’t deal with that side of it, see Joanne (referring to his daughter in-law) does the book-work”. It was Mr Baff’s evidence that between April and December 1996, he actually saw the deceased on probably less than a dozen occasions.

18. On 12 December 1996, Darryl Baff loaded the truck with building timber using a fork-lift. At the time that the timber was being loaded, the deceased had gone to visit his brother in-law in Dorrigo. Mr Baff said that he probably drove to Dorrigo in his, (Mr Baff’s), Suzuki. The deceased arrived back at the sawmill when the truck was loaded. Mr Baff, in a statement made to Gregory Erald Owens on 22 May 1997, from which statement he did not resile in his oral evidence, stated that he and the deceased “checked out” the truck before his leaving, including the lights, the tyres, the oil, the water and the fuel. The fuel was supplied from a fuel tank at the respondent’s premises. It is Mr Baff’s evidence that on 12 December 1996, the deceased when he arrived at the sawmill in the truck, was accompanied by a person identified as “Ray” who was described by Mr Baff as a friend of the deceased and who he assumed, lived with the deceased. The applicant said in her evidence that “Ray” was an “old man” in his late sixties or early seventies, with whom Oskar lived in Brisbane after she had moved to Gympie.

19. “Ray” was not called to give evidence. Attempts to locate “Ray” had been made but were apparently unsuccessful. It was suggested at one stage that “Ray” may have been a paid employee of the deceased, but there is no evidence to support this proposition.

20. The deceased commenced his trip at about 1pm on 12 December 1996 and at some stage thereafter, Mr Baff received a phone call from the deceased advising him that he had “blown a tyre”. The deceased, according to Mr Baff, advised him that a friend who lived in Maclean, gave him some help with the tyre and that they were “proceeding on”. At some stage later, Mr Baff received a phone call from “Ray” to advise him that there had been a motor vehicle accident and the truck had “been towed”.

21. The circumstances surrounding the motor vehicle accident are contained in Exhibit A, the coroners file, which file contains police investigations into the accident. There is no dispute that on 12 December 1996, when travelling north on the Pacific Highway at Pimlico, the truck driven by the deceased had suffered some electrical problems and the deceased had commenced to pull the vehicle to the left and stop to rectify the problem. Another vehicle came into collision with the rear of the truck and spun onto the incorrect side of the road, stopping in the south-bound lane. The deceased had left the truck to assist the occupants of the other vehicle, when a vehicle travelling north, whilst swerving around the stationary truck, collided with the deceased, who was attempting to cross the roadway. The deceased was hospitalised with multiple fractures and died of a massive pulmonary embolus on 22 December 1996.

22. Gregory Erald Owens gave evidence in the applicant’s case. I found Mr Owens to be a straightforward and convincing witness and accepted his evidence as being independent, notwithstanding the fact that he, at one time, acted for the applicant. He professed little independent recollection of the conversation with Mr Baff and referred to his contemporaneous notes of the conversation. Most of the statements or admissions made by Mr Baff in that conversation were not disputed as being the fact by Mr Baff, with one or two notable exceptions to which I will come in due course, although Mr Baff said that he did not recall having a conversation with Mr Owens. The notes taken by Mr Owens were tendered, Exhibit H, and Mr Owens’ evidence was, in the main, a reiteration of what was contained in those notes. The notes taken by Mr Owens of the conversation with Mr Baff, consist of statements made by Mr Baff in response to questions asked of him by Mr Owens. A number of the statements made by Mr Baff to Mr Owens are uncontroversial and are consistent with Mr Baff’s evidence. However, some of the statements made by Mr Baff in that conversation with Mr Owens, are inconsistent with his evidence and with the documentary evidence, such as it is. For example, Mr Baff, I accept, stated to Mr Owens “Oskar had the truck in Brisbane in early December 1996” and “on 12 December 1996, Oskar had had the truck for his own purposes and had driven back to Billy’s Creek”. Although the impression gained from Mr Baff’s evidence was that he only saw the deceased on odd occasions, the photocopy pages of the log books, which were all that were allegedly found by Mr Baff in his search for the log book, which pages comprise Exhibit B, and which log book entries were completed by the deceased, indicate that on Thursday 5 December 1996, the deceased droved the truck from Brisbane to Billy’s Creek; on 6 December 1996, the deceased drove the truck from Billy’s Creek to Brisbane; on 7 December 1996, from Brisbane to Billy’s Creek and on 12 December 1996, from Brisbane to Billy’s Creek. The log book entries therefore indicate that the deceased had driven from Brisbane to Billy’s Creek on at least three occasions in early December 1996, which would point to the fact that the deceased had more frequent contact with Mr Baff than his evidence suggests. It would also seem probable that given the trips that the deceased made early in December 1996, between Brisbane and Billy’s Creek, that he probably performed work for the respondent in December 1996, other than that carried out on 12 December 1996.

23. Mr Owens gave evidence that during the conversation with Mr Baff in May 1997, and which the contemporaneous notes record, Mr Baff stated that “occasionally he’d (the deceased) ask me for some money - say $100”, something that Mr Baff denied in his oral evidence. Mr Owens also gave evidence that Mr Baff told him during that conversation that “I think he (the deceased) was paid $100 for that run”, which again, was denied by Mr Baff in his evidence. Mr Owens was cross-examined, in particular in relation to the statements of Mr Baff recorded in his notes in respect of the payment of monies, after April 1996. Mr Owens was quite firm that the statement of Mr Baff, recorded by him, “I think he was paid $100 for that run” was a reference by Mr Baff to a payment to the deceased of $100 for the run being undertaken by the deceased on 12 December 1996.

24. Mr Baff’s evidence, to which I have referred in part, did not differ in any significant respect to the matters contained in his statement to Mr Owens, but for the question of payments made to the deceased after April 1996. Although Mr Baff did not recall the conversation with Mr Owens, he denied paying monies to the deceased, apart from one occasion when he refunded $100 to the deceased for money spent on fuel and a further $50 on another occasion, the date of which was unspecified, when the deceased did not have any money. Mr Baff was an unconvincing and unsatisfactory witness, and he gave evidence in a vague and evasive manner. In assessing Mr Baff as a witness, I take into account that he is an unsophisticated country man, with probably little in the way of formal education. However, having said that, I formed a view that he was not being entirely frank in his evidence. Insofar as Mr Baff denied paying the deceased $100 for the trip undertaken on 12 December 1996, I prefer the evidence of Mr Owens, and am prepared to find that $100 was the consideration paid by the respondent to the deceased for carting the load of timber to Brisbane, on which trip the deceased met with the accident which ultimately led to his death.

25. Mr Baff was cross-examined in relation to the alleged failure by the respondent to produce certain financial and other records in answer to a subpoena served upon the respondent by the applicant’s solicitors. For example, no cheque books of the respondent company were produced, particularly cheque books relating to the period April to December 1996. Mr Baff, in his evidence, wished to place responsibility for producing the documents required in the subpoena to his daughter in-law, Joanne. As to the failure to produce log books relating to the truck which the deceased was driving, it was Mr Baff’s evidence that the original log books did not come back with the truck. However, he said that three pages of the log book relating to 6 December 1996, 7 December 1996 and 12 December 1996, were located by him under the seat of the truck. Mr Baff said when asked about the log book:

Well, the original log books were in the truck but, I mean, they didn’t come back with the truck. When we got the truck back we never got them bloody log books.

26. He said a little later in his evidence that the truck was returned to the mill about “six weeks later”, meaning six weeks after the motor vehicle collision on 12 December 1996. Given that Mr Baff’s evidence was that he inspected the truck after its return to him and at that time found only three pages from the log book under the seat, Mr Baff’s statement to Mr Owens some six months later, as recorded in Exhibit H, after being asked by Mr Owens as to the whereabouts of the log book, “log book in truck ... maybe the log book is here ...” is inconsistent. In any event, I was not asked to make any orders in relation to the alleged failure by the respondent to produce documents.

27. Mr Baff conceded that the arrangement between the deceased and the respondent company, was much the same prior to and after April 1996, but for the payment of wages. As can be seen and as is not uncommon in some country cases, the arrangement between the parties, even before the nature of their relationship allegedly changed, and when the deceased was indisputably an employee of the respondent, was anything but orthodox. It seems that the applicant was free to come and go to a much greater extent than what is ordinarily the case with an employee.

28. In respect of the wages admittedly paid by the respondent company to the deceased between August 1995 and April 1996, of $325 per week, it was submitted by both counsel that that sum may not represent what was actually paid to the deceased for that period. Respondent’s counsel submitted that it may well be that the deceased received, in addition to $325 per week, the job subsidy allowance paid by the government to the respondent. This however is not the evidence of the respondent’s witness, Mr Baff. As I understand applicant’s counsel’s submissions, it was suggested that the deceased may have been paid cash, in addition to the declared wages of $325 per week. Once again, there is no evidence that this was the case. There is no doubt that the payment of $325 per week, even in 1996 in Dorrigo, was below the industrial award for a full-time truck driver at that time. One could infer from the payment of such a sum and the evidence of Mr Baff, that less than full-time work was required by the applicant, even when he was admittedly employed, and this may explain the considerable degree of freedom exercised by the deceased. Whilst there is no evidence that he did so, the deceased certainly had the opportunity to perform work for others when he was in Brisbane, even when he was “on the books”. This is therefore, not a case where the looseness of the relationship between the deceased and the respondent, after the relationship changed, should be regarded as absolutely determinative as to the absence of an element of control over the deceased as to the way in which he performed his work.

29. There is scant evidence as to what use the deceased made of the truck at times when he was not carting timber for the respondent. As I have said, Mr Baff’s evidence is that the log books went missing. There were no documents in the nature of financial records, tax returns, et cetera relating to the deceased, tendered. The evidence of the applicant, the widow of the deceased, was that she possessed no financial records relating to the deceased. There is some evidence, namely the finding, by Mr Baff, of metal debris on the truck on one occasion, which indicates the deceased carried materials other than timber on at least one occasion, and I think it may be inferred that he may well have carried loads for others on more than one occasion.

30. The evidence that the deceased carried on a business in his own name after the arrangement between him and the respondent changed, is thin indeed. There is no evidence that the deceased held himself out as being available to carry loads for others by means of advertising, telephone book entry, et cetera. It must be remembered that the deceased did not own the truck in question, and the truck had displayed on it, the name of the respondent rather than the deceased.

31. There is no direct evidence that the deceased, in fact, carried loads for others, except for an inference that may flow from the presence of metal debris on the truck on one occasion, to which Mr Baff referred in his evidence.

32. However, I think one can infer that the deceased derived an income by some means or other in order to support himself and to make the contributions to the applicant’s household, as asserted by her. The applicant’s evidence was that her husband, the deceased, commenced employment with the respondent in about August 1995 and that “from about then” he drove a green truck with “Fantam” on its side. The applicant and the deceased lived together in Brisbane as man and wife until July 1996 when she moved to Gympie to live with her daughter, Kylie. It was her evidence that even after she moved to Gympie, the deceased would visit her regularly in Gympie on weekends. However, she said that he did not discuss the work that he was performing. She said “I knew he was driving a truck”. During cross-examination, she said that between July 1996 and December 1996, she did not know what sources of income her husband had. However, she agreed that “he did have NewStart” in that period.

33. On the evidence available, I think it probable, that in addition to the NewStart allowance, the deceased probably did receive some cash payments from the respondent from time to time in addition to the use of the truck, and that he probably earned additional monies by carrying goods for others on occasions.

34. It was submitted by applicant’s counsel, that notwithstanding the fact that the deceased was no longer “on the books of the respondent”, that he nonetheless continued as an employee of the respondent and paid cash, and was thus, at the time that he sustained injury that led to his death, was performing work in the course of his employment with the respondent. I do not think the evidence supports such a finding. Whilst I prefer the evidence of Mr Owens, in that the deceased received a payment of $100 from the respondent for the trip undertaken on 12 December 1996, and probably received some cash payments from time to time prior to that date, I am not satisfied that on the evidence before me, that the deceased continued to be paid any regular wage by the respondent company.

35. I was referred by applicant’s counsel to Davis v Pioneer Concrete (NSW) Pty Limited (1976) 1 NSWLR 562, which is authority for the proposition, that it is possible in particular circumstances, for the parties to an agreement to enter into separate contracts; for example, in this case, each time a load was delivered by the deceased for the respondent. The circumstances in which the deceased carries the other loads of timber which were referred to in Mr Baff’s evidence, are not known, apart from the fact that the loads were generally of building timber, to one or other of the purchasers introduced to the respondent by the deceased.

36. The respondent submits that the contract or agreement to carry timber for the respondent was in the ordinary course of the deceased’s business as a truck driver, just like any other contract entered into between the deceased and other members of the public from time to time.

37. In Humberstone v Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389 at 401, Dixon J, as he then was, said in relation to the Victorian equivalent of Sch 1 cl 2:

The provision will thus cover men who work for the principal but have no independent business or trade and men who though carrying on an independent trade or business undertake a contract outside the scope or course of that trade or business. The word “trade” is capable of including any handicraft and in that sense it may seem to lack the element of systematic practice or holding out which the idea of openly conducting a distinct or independent trade or business and seeking custom implies. But a consideration of the policy of the provision as well as of its text appears to me to show that the distinction it seeks to draw is between on the one hand an independent contractor whose relation with the principal is special or particular either because it is outside the course of the general business of the contractor or the general practice of his trade or because he has no such general business or is not a general practitioner of his trade, and on the other hand an independent contractor who performs work successively or perhaps concurrently for his customers or others in the course of a definite trade or business carried on systematically or who holds himself out as ready to do so. The language of this sub-section is derived from the provision that stands as s 14(1)(a) of the Victorian Workers’ Compensation Act 1928, where the words are “where any person ... in the course of or for the purpose of his trade or business contracts with any other person.” The suggestion which this language conveys of the existence of a business or the practice of a trade is much strengthened in sub-s. (6) by the words “carried on,” “regularly” and “in his own name or under a firm or business name.” These all indicate a business or trade conceived as independently existing or exercised by a person holding himself out to the public under a name or style. No doubt the policy is a matter of inference but it seems reasonable to suppose that it was considered proper that a person conducting a business in the course of which he contracted to perform work should himself carry the risk of personal injury as one of the hazards of his business, while the man who worked under contract but only for the employer or without any general trade or business or outside his trade or business should, like any ordinary employee, be insured by the Act against the risk of injury in his work.

38. The manner in which the work was performed by the deceased on 12 December 1996, would seem to me to indicate that the carrying of the timber for the respondent was not done in the ordinary course of any business conducted by the deceased.

39. On that particular occasion, Mr Baff took care to load the truck himself rather than have the deceased do so, notwithstanding that he was a professional truck driver; he checked the truck and fuelled it. On that occasion, Mr Baff gave evidence of receiving a phone call from the deceased, advising him of the truck having blown a tyre, and of the help obtained by a friend of the deceased and the fact that they were proceeding on. Although Mr Baff said that he did not determine the route taken by the deceased from Billy’s Creek to Brisbane, this in my view, is of little consequence given the limited options available. The evidence suggests that the deceased felt it necessary to inform Mr Baff of his progress on the trip, by telephoning him about the difficulty with the tyre, and of course later informing Mr Baff through his friend “Ray”, as to the motor vehicle accident. In my view, because of the above matters, it would seem that there was a significant degree of control exercised by Mr Baff on behalf of the respondent company, in relation to this particular trip, although there is no direct evidence as to the degree of control exercised on earlier occasions. Such a degree of control is not consistent with the deceased performing work incidental to his “usual trade or business”.

40. All of these matters might be thought to justify a finding, in the case of this particular contract, the element of control over the deceased’s activities by the respondent, was sufficient to find that he was a worker with in the meaning of the Act, at the time that he was involved in the motor vehicle accident.

41. However, the applicant as I have said, by amendment, relied on Sch 1.2.1 of the WIM Act, which only requires it be proved that the deceased was engaged in a contract for services with the respondent when he suffered injuries, which contract was not made in the ordinary course of his trade or business.

42. I do not think that the contract entered into between the deceased and the respondent in respect of the carting of timber on 12 December 1996, was work incidental to any trade or business regularly conducted by the deceased. In my view, the relationship between the deceased and the respondent was “special or particular”, particularly in relation to the agreement to carry timber on 12 December 1996.

43. I am therefore satisfied that at the very least, the deceased was, at the time of his injury on 12 December 1996, a deemed worker pursuant to Sch 1.2.

Evidence as to dependency.

44. The applicant, Judith Kofler, gave evidence which went almost entirely to the question of her dependency upon the deceased. As I have said, she was unable to give any evidence as to the nature of the relationship that existed between the respondent and the deceased at the time of his death. The applicant and the deceased married on 24 March 1973. There were three daughters of the marriage, the youngest of whom was born on 18 September 1978. The applicant’s evidence was that none of the three children were dependent upon the deceased at the time of his death. She said that during their marriage, the deceased worked in a number of occupations in different parts of Australia, usually it seems, as a truck driver. It was her evidence that the deceased “was always in employment”. She and the deceased moved to Brisbane from Gympie in 1995 and the deceased commenced working for the respondent. She and the deceased had never accumulated anything in the way of assets, had never owned a house and always lived in rented accommodation. When living in Brisbane between 1995 and 1996, the applicant worked part-time for Big W as a “night filler”. It seems that the applicant also worked for Big W when living in Gympie, as her group certificate for the year ending 30 June 1995, part of Exhibit G, disclosed an income of $9,993 when employed by Big W for the period 10 October 1994 to 30 June 1995. A group certificate for the year ending 30 June 1996, disclosed that her income from Big W was $7,130.

45. She said that when living together in Brisbane, the deceased paid “all the bills - the phone bill, the power bill” et cetera. She said that the rent was paid partly from her wage and partly from what monies were provided by the deceased. She said that she did not receive any specific sum from the deceased for the running of the household, but that he paid for the weekly “shopping”.

46. In July 1996, she moved to Gympie to live with her daughter, Kylie, who had herself separated. Notwithstanding their separation, she said that the deceased would “come home (to Gympie) probably every weekend”. When she returned to Gympie in July 1996, the applicant said she obtained work at Woolworths and rented accommodation in Gympie. After her move to Gympie, she said the deceased moved out of the premises that they had rented jointly in Brisbane and moved in to live with “Ray” and “helped him out”. When asked about her financial circumstances from July 1996 to the date of the deceased’s death, she answered “well I was working and Kylie was living with me, and Oskar, and with the Newstart”.

47. She did not give any oral evidence as to what she earned in her position at Woolworths, but her 1997 group certificate for the period 12 November 1996 to 30 June 1997, disclosed an income of $2,467 in respect of her employment with Woolworths. There was no evidence as to the amount she was receiving by way of her NewStart allowance or any income to the household contributed by Kylie.

48. The applicant’s evidence was that even after their separation, the deceased still paid for part of her rent and “living bills”. She said that her rent was $145 per week of which the deceased paid “probably half”. When asked by her counsel “was that on a regular basis?”, the applicant replied “Yes, weekends he’d come home”. In addition to part payment of the rent, the applicant said that the deceased paid her telephone bill, power bill and car registration when due. Her power bill she estimated as being about $170 per quarter; her telephone bill was “probably about $120 monthly” and her car registration was “around say $450”. She also said that the deceased paid for part or all of her grocery bill “when he came home”. She estimated the grocery bill as “probably $100, $120 weekly”. Her evidence in-chief was to the effect that the deceased came home more or less every week, but during cross-examination, as I understood her evidence, she conceded that he in fact, he did not go to Gympie every weekend.

49. I should say that the applicant’s evidence in respect of the amount of the contribution to her household expenses by the deceased was vague and somewhat unsatisfactory. She prefaced most of her answers with the word “probably”.

50. The applicant gave no evidence as to how long she expected the arrangement which existed at the time of the death of the deceased, to continue. There was no evidence as to whether or not the separation may lead to a divorce, or whether she and the deceased intended to resume living together on a full-time basis.

51. On the applicant’s evidence, the deceased paid half of her weekly rent, namely $72.50 per week; the sum of approximately $13 per week towards her power bill; $30 per week for her telephone bill; $8.60 per week for car registration an a contribution to her grocery bill when he was visiting for the weekend, which the applicant estimated cost somewhere between $100 and $120 per week. Her evidence as to the frequency with which the deceased actually contributed to the grocery bill was inconsistent. Accepting that he made a contribution on occasions when he was in Gympie, of either half or more of the bill, doing the best I can I would think that a maximum of $50 per week contribution towards her grocery bill is the highest I can accept on her evidence, given that the deceased would have, I infer, consumed a portion of the groceries purchased himself. On those figures, it would seem that the deceased contributed in the order of $165 per week to the applicant by way of support. Using that figure as a starting point, if this sum is capitalised using the 3 per cent tables, with the expectation that the deceased would work until 65 years of age, the capital sum for the future is in the vicinity of $63,000 to which should be added the sum of approximately $37,000 for past loss of support, making a total of $100,000.

52. However, given the uncertainties as to the future support that could be expected by the applicant, in view of the fact of their separation at the time of the deceased’s death, in addition to the usual vicissitudes, in my view a substantial discount should be applied to that figure.

53. In my view, the amount which is reasonable and proportionate to the injury to the applicant, is the sum of $60,000. In arriving at that figure, I have also taken into account that the deceased may have continued to have provided some support to the applicant even after retiring age, had their marriage continued, and have also taken into account the fact that the applicant has paid the funeral expenses.

I therefore find:-
1. Oskar Ulrich Kofler sustained injuries on 12 December 1996 in or arising out of his “deemed” employment with the respondent, pursuant to Sch 1.2.1 of the WIM Act.
2. As a result of such injuries, Oskar Ulrich Kofler died on 22 December 1996.
3. The applicant was partially dependent for support upon the deceased at the date of his death.
4. I determine the amount of $60,000 to be the amount which is reasonable and proportionate to the injury of the applicant.

I order the respondent to pay to the applicant:
1. $60,000 pursuant to s 26 of the Workers Compensation Act.
2. Costs.

Mr T J Willis instructed by Stephensons appeared for the applicant
Mr D R Benson instructed by Burridge Harris & Flynn appeared for the respondent