Kauri Timber Co (Tasmania) Pty Ltd v Reeman
128 CLR 1771973 - 0412B - HCA
(Judgment by: Gibbs J)
Between: Kauri Timber Co (Tasmania) Pty Ltd
And: Reeman
Judges:
Barwick CJ
McTiernan J
Menzies J
Gibbs JStephen 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:
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.
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.
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. [F6] 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: [F7]
"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"?
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.
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; [F8] Borson v C. A. Hine & Co Pty Ltd. [F9] 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; [F10] Orr v Attorney-General (N.Z.). [F11] 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, [F12] 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: [F13]
"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: [F14]
"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, [F15] 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".
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. [F16] 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. [F17] 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. [F18] The effect of the authorities was summed up in a sentence by Fullagar J. in Fenton v Batten, [F19] 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.
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. [F20] 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.
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.