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. Duck CCJ made a fourth finding, namely that the compensation payable by the deceased's employer in respect of her death as being reasonable and proportionate to the injury to Mr Brown as her dependant was $221,750. This finding was challenged by the appellant/employer whose counsel submitted to this court that the amount reasonable and proportionate to the injury to the respondent was $110,875. At the time of her death, at the age of twenty-four, Mrs Brown was earning about $37,500 per annum. Her husband was earning about $32,000 per annum. She was the manager of their financial affairs. They had talked about having children, and indeed she had spoken of having five children. To the extent that they had made plans about their family, their intention was that apart from periods of maternity leave, Mrs Brown would continue to work. 2 UNREPORTED JUDGMENTS A closely similar case had been decided by Moroney CCJ in 1980: Maas Department of Education (1980) WCR, Pt2, 167. He had found partial dependency and awarded the maximum amount payable pursuant to s8(2) of the 1926 Act (the provision corresponding to s26). What at first sight would appear to be the anomaly of a payment to a person partly dependent at times being as great as that to a totally dependent person does not appear to have concerned the drafters of the 1987 Act sufficiently to have written the possibility out of the new Act. Instead the language of s26 was left in very wide and general terms. Ina recent decision of this court on s26, (Warilla Timber and Hardware Pty Ltd v Newton, 11 July 1995, Kirby ACJ, Mahoney AP and Clarke JA) the court emphasised that judges fixing amounts payable to persons partly dependent should give reasons making plain how the amount was arrived at. In a case such as the present however, any attempt to calculate the money value of the partial dependency must inevitably use a very broad brush. Duck CCJ made two necessarily rough calculations, both of which produced a figure in excess of the statutory maximum. The appellant criticised the figuring and the methodology involved in these rough calculations. Once the position is reached, which in this court is the unchallenged starting position, that there was partial dependency by the respondent upon his wife, and there is then taken into account her evident ability with money, her ambition to work, her earnings already being somewhat greater than her husband's, the very many years during which she intended to work and he was likely to continue to be partly dependent upon her, it seems to me to be impossible to say that this court could with any confidence arrive at a figure less than that awarded by Duck CCI. So long as 826 is left in its present vague state, it leaves a very great deal of room for the decision maker to move in when deciding what amount of money, not greater than the statutory maximum, is reasonable and proportionate to the injury suffered by a partial dependant. I am not persuaded that Duck CCJ's rough calculations were wrong, but if they were and this court had to exercise anew the function authorised by s26, I would arrive at the same result. In my opinion the appeal should be dismissed with costs. Clarke JA I agree with Priestley JA. Meagher JA I agree with Priestley JA. Appeal dismissed with costs. Counsel for the Appellant: MW ROBINSON Counsel for the Respondent: AF PUCKERIDGE QC / JL SHARPE Solicitors for the Appellant: HUNT AND HUNT Solicitors for the Respondent: JONES STAFF AND CO