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? CHAMBERS: To feed and clothe them on $18 a week, yes, it does cost more than that. HIS HONOUR: How much more? CHAMBERS: I suppose I spend $100 a week on food." I think there is much to be said for the view that this passage in the evidence is capable of the construction that the respondent spends $100 per week in food on her two children over and above the $18 per week which she gets from her husband. If so, there would be no doubt that the children were mainly dependent upon her. However, there is other evidence upon which the finding of dependency in favour of the respondent can be supported. The respondent gave evidence that she has to buy clothes and shoes for the nine year old boy regularly because he is growing fast. She also said that the children were big eaters. The children live in a home owned by the respondent. She is paying off a mortgage by installments of $260, which I would assume is 2 UNREPORTED JUDGMENTS a monthly payment, so that the children receive from the respondent the benefit of the accommodation provided for them. She also pays $2 per week for school fees. Accordingly, there was evidence that, in addition to the food which she buys, and which I will assume is for the family unit, she buys clothes for the children, that she pays something like $2 per week for one of the children in respect of fees, and that she provides accommodation for them. The respondent's husband contributes about $18 per week to the maintenance of each of the children. Whatever might be meant by the expression "wholly or mainly dependent" in s9 of the Act, it seems to me that it was open to his Honour to find that the respondent provided at least another $25 each per week towards their maintenance and that the children were mainly dependent upon her. I think that as a matter of common sense his Honour could take the view that a substantial portion of the $100 per week spent on food went to the two children. In addition to that there was money spent on clothes and fees and there was also the provision of accommodation. In my view it was open to his Honour to find that the value of the support given by the respondent to each of the two children was not less than $25 per week. I think the evidence and common sense would support an even higher figure. In those circumstances it seems to me that it was open to his Honour to find that these children were mainly dependent upon her. Accordingly no error of law appears from his Honour's finding. In my opinion the appeal should be dismissed with costs. Kirby P I agree for the reasons given by McHugh JA that the appeal should be dismissed with costs. The obstacle which stands in the way of the appellant is the limitation on appeals to this Court from the Compensation Court relevantly to a point of law. As was observed by the High Court of Australia in a unanimous judgment in Aafjes v Kearney (1975) 8 ALR 455, the question whether a person is dependent on another person is purely a question of fact. Accordingly in order to construct the question of law it is necessary for an appellant to argue that there was no evidence upon which the Compensation Court could conclude as it did. This was the burden which was assumed by the appellant. But for the reasons given by McHugh JA it was not discharged. Having said this, I would want to align myself particularly with his Honour's observations about the unsatisfactory nature of the evidence below. It was left partly to inference and calculation in the Court below and in this Court to determine the degree of dependency. That is unsatisfactory because of the juxtaposition in the Workers' Compensation Act 1926 between the phrases of an adjectival character which qualify dependency as that word is used respectively in s9(1)(b), (the section upon which the respondent relied) and s8(2). In the latter, a juxtaposition is drawn between dependents who are "wholly" dependent or "in part" dependent, whereas under the section now under consideration it is necessary to show that the dependents were "totally or mainly" dependent. This juxtaposition should address the attention of those presenting cases in the Compensation Court to the detail of the facts as they relate to the degree of dependency so that the judge determining that degree, by the statutory criteria, is not left in any material respect to speculation. That said, it is in my opinion untenable on the facts proved to say there was no evidence upon which Judge Manser could find as he did. Accordingly I agree with the order proposed. Clarke JA I also agree with McHugh JA's reasons. URJ STOCKTON HOSPITAL v CHAMBERS (Clarke JA) 3 In particular I do not accept the submission that it was not open to his Honour the trial judge to make the finding that the two children were mainly dependent upon the respondent in the absence of clear evidence of the precise amount which was expended upon the children each week. It seems to me that the provision of such a figure would invariably involve an artificial exercise divorced from reality. In my view the task confronting the Court is to determine whether on a common sense view of the whole of the evidence it could be said that there is material which leads to the conclusion that the children or child, as the case may be, were or was mainly dependent on the applicant. If there is evidence upon which such a finding could be supported and there is in this case, no question of law arises. I agree with the orders proposed. KIRBY P: The order of the Court is appeal dismissed with costs.