STOCKTON HOSPITAL v CHAMBERS [1988] NSWCA 148

STOCKTON HOSPITAL v CHAMBERS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirByY P, MCHUGH and CLARKE JJA 21 March 1988

[1988] NSWCA 148

WORKERS' COMPENSATION — children — "wholly or mainly dependent" — female worker — support from separated husband for children — Commonwealth family allowance — dependency question of fact — commonsense view of whole of the evidence — trial judge entitled to find children mainly dependent on worker.

ORDER Appeal dismissed with costs.

McHugh JA This is an appeal from so much of an award made by the Compensation Court as provided compensation for the respondent on the basis that two of her three children were mainly dependent on her. The question in the appeal is whether there is any evidence which would support that finding of dependency.

The respondent has three children. One of them, for reasons it is unnecessary to go into, is wholly supported by her. In respect of the other two children, a boy of nine and boy of two, she receives $18 per week for each child from her husband from whom she is separated. She also receives a little over $15 per week by way of a family allowance. But by reason of the provisions of s9(1)(d) of the Workers' Compensation Act 1926 any payment made under the Social Service Act 1947 by the Commonwealth does not preclude a child from being totally or mainly dependent for support on the worker for the purpose of the Workers' Compensation Act.

The evidence concerning dependency was rather unsatisfactory, but I have come to the conclusion that there was sufficient material for his Honour to find that the children were mainly dependent upon the respondent worker.

At p 29 of the appeal book the respondent was asked:

LITTLE: Q. So it's your evidence that you spend more than $900 a year on each of those children? A. Yes.

HIS HONOUR: Or more than $18 a week on each of them?