Kauri Timber Co (Tasmania) Pty Ltd v Reeman
128 CLR 1771973 - 0412B - HCA
(Judgment by: Menzies J)
Between: Kauri Timber Co (Tasmania) Pty Ltd
And: Reeman
Judges:
Barwick CJ
McTiernan J
Menzies JGibbs J
Stephen J
Subject References:
Workers' compensation
Calculation
Total and partial dependency
Legislative References:
Workers' Compensation Act 1927 (Tas) - The Act
Judgment date: 12 April 1973
Sydney
Judgment by:
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.
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.
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 [F5] 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.
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.
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.
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.
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.
Accordingly, I consider that the appeal should be allowed.