Kauri Timber Co (Tasmania) Pty Ltd v Reeman
128 CLR 1771973 - 0412B - HCA
(Judgment by: McTiernan J)
Between: Kauri Timber Co (Tasmania) Pty Ltd
And: Reeman
Judges:
Barwick CJ
McTiernan JMenzies 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:
McTiernan J
The appellant is the employer who is liable under s. 5 of the Workers' Compensation Act (Tas.) 1927, as amended, to pay compensation under the Act in respect of the personal injury suffered by the respondent's husband which resulted in his death. The dispute is as to the amount of compensation which the appellant is liable to pay. This falls for calculation in accordance with r. 2 of the 1st Sch. to the Act. In this rule there are formulae for the calculation of compensation. Those considered relevant are the following. One is applicable to the case described in these words:
- "(a)
- If the worker leaves any dependants wholly dependent upon his earnings ..."
The other is applicable to the case described in this way:
- "(b)
- If the worker does not leave any such dependants but leaves any dependant in part dependent upon his earnings ..."
The term "dependants" is defined by s. 3 of the Act to mean:
"such members of the family of the worker in relation to whom the term is used as-
- (a)
- were dependent, wholly or in part, upon the earnings of that worker at the time of his death ..."
The remainder of the definition of "dependants" need not be quoted here.
This definition, so far as quoted above, becomes applicable to a wife by reason of the definition of the term "member of the family", to be found also in s. 3.
The Act contains no definition of "dependent". The word is used in relation to a dependant who is a member of the worker's "family", as defined, dependent on his earnings at the time of his death. In my opinion, the correct denotation of the word in the present context is dependent at that time on the earnings of the worker for maintenance or means of support.
The Chief Justice of Tasmania, who heard Mrs. Reeman's claim for compensation under the Act, decided that she was dependent wholly upon the earnings of her husband at the time of his death. It is contended for the appellant that she was dependent only in part upon such earnings at the time of his death. The only ground on which it is so contended is that before and at the time of her husband's death Mrs. Reeman owned a motor car the price of which she paid out of her own modest resources and the running expenses of which she paid out of her separate income derived from such resources.
The salient features of the evidence, both oral and documentary, appear from the judgment of the learned Chief Justice. His Honour said:
"I accept the plaintiff (Mrs. Reeman) as a completely honest and reliable witness. I am satisfied that she kept her own money separate from her husband's, and did not use any of it for ordinary household expenses or her own maintenance. I find that she looked wholly to her husband to defray all the 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. I also accept her evidence that her husband did not drive or use the car at any time, although he was, of course, a passenger in it from time to time. He made no contribution to its running expenses and it was not regarded as a family car."
The learned Chief Justice further said in his reasons for judgment:
"In the present case the wife's small private income was kept separate and was not put into a common family fund. It was not used for the family's living expenses, or for the personal maintenance of the wife. I accept her evidence that she used it to maintain her car and for 'presents'. No doubt some of the 'presents' would be household requisites. I would think that the greater part of her small income would be used to run her car. Under these circumstances was she wholly dependent on her husband's earnings?
The expression 'such members of the family of the worker ... as were dependent, wholly or in part, upon the earnings of that worker at the time of his death' is elliptical. Dependent for what? For the ordinary necessaries of life? For one's actual living expenses? In New Monckton Collieries Ltd v Keeling [F3] Lord Shaw of Dumfermline said:'The Act of Parliament seems to say: Among the relatives 'of the deceased workman, if there be those who depended 'for support upon his earnings, and who by his death have 'lost that support upon which they depended, then let them 'be compensated for that loss.'"
In my opinion, his Honour was right in applying the dictum of Lord Shaw to the present case and deciding as follows:
"So 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 [F4] 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. I think her pecuniary loss is a loss commensurate with total dependency."
The evidence does not justify a finding that a characteristic of the motor car was that it was an article of household use or that the expenditure on it was an item in the wife's maintenance-defrayed by herself. Such expenditure cannot, on the evidence, be regarded as expenses of housekeeping or expenditure by the wife for the purpose of her own maintenance. On the evidence the deceased worker assumed responsibility for the entire maintenance and means of support in respect of all the respondent's necessaries and provided fully for her livelihood out of his earnings as a worker in the employment of the applicant.
The judgment of the learned Chief Justice is, in my respectful opinion, right.
I would dismiss the appeal.