STATE OF NEW SOUTH WALES (DEPARTMENT OF CORRECTIVE SERVICES) v BROWN [1995] NSWCA 444

STATE OF NEW SOUTH WALES (DEPARTMENT OF CORRECTIVE SERVICES) v BROWN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and MEAGHER JJA 6 September 1995, 1 November 1995 [1995] NSWCA 444

S26 WORKERS COMPENSATION ACT 1927 — trial judge finds widower partially dependent on deceased worker — trial judge awards maximum amount payable under s25 — apparent anomaly of payment to person partly dependent being as great as to a person totally dependent — nonetheless, s26 leaves a decision maker wide scope in deciding what amount of money, up to the statutory maximum, is reasonable and proportionate to the injury suffered by the partial dependent — no error shown in trial judge's assessment.

Priestley JA So far as relevant to this case, s26 of the Workers Compensation Act 1987 provides that "if death results from an injury and the worker does not leave any dependants wholly dependent upon the worker for support but leaves dependants in part so dependent, the compensation payable by the employer under this Act shall be.. such amount" (not exceeding the amount payable under s25, which states the amount payable to dependants wholly dependent on the dead worker) "as is determined by the Compensation Court to be reasonable and proportionate to the injury to those dependants".

The context makes it clear that "injury" where first appearing in the section is used in the sense defined in s4, and where last appearing is used in a different and undefined sense.

At the time relevant to this case the amount payable under s25 to dependants wholly dependent for support on the worker was $221,750.

In proceedings arising from the death of a worker, Mrs TA Brown, Duck CCJ made the following findings, which were not challenged in this appeal. (1) Mrs Brown died on 3 July 1993 on a daily journey within the meaning of the Act. (2) The applicant before Duck CCJ (the respondent in this court) Mr DJ Brown, the widower of the deceased, was partially dependent for support on her at the time of her death. (3) There were no other dependents.