Kauri Timber Co (Tasmania) Pty Ltd v Reeman
128 CLR 1771973 - 0412B - HCA
(Judgment by: Barwick CJ)
Between: Kauri Timber Co (Tasmania) Pty Ltd
And: Reeman
Judges:
Barwick CJMcTiernan J
Menzies J
Gibbs 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:
Barwick CJ
In this matter I have had the advantage of reading the reasons for judgment prepared by my brother Stephen. There will be found all the facts and statutory references necessary for the disposal of the appeal.
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.
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. [F1] 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.
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?
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.
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 connection 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.
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 [F2] 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.
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.
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.
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.
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.