WARILLA TIMBER AND HARDWARE PTY LTD v NEWTON [1995] NSWCA 493

WARILLA TIMBER AND HARDWARE PTY LTD v NEWTON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY ACJ, MAHONEY AP and CLARKE JA 11 July 1995, 11 July 1995

[1995] NSWCA 493

WORKERS COMPENSATION — death benefits calculation of mother's entitlement — net provision likely duration — held: Confined to financial injury — dependence for support — discretion of primary judge — non-mechanistic approach — award reduced.

PRACTICE AND PROCEDURE — Compensation Court — lump sum for death benefits — duty to provide reasoned statement of how sum is arrived at.

WORDS AND PHRASES — "injury" — "for support" — "reasonable and proportionate"

WORKERS' COMPENSATION — death claim — benefits to dependent mother — primary judge (Maguire CCJ) awards $95,000 — employer appeals on ground that such sum is excessive — held: (1) The "injury" to the dependants in s26(b) of the Workers Compensation Act 1987 is confined to financial injury and does not include provision for a solatium for grief etc. Young v Londonderry Colliery Ltd (1924) 27 BWCC 215 referred to; (2) The change from "dependent on earnings" to "dependent for support" in s26 of the Act incorporated wider concepts of dependence, such as for non-paid services rendered by the deceased worker to the dependants, for which allowance should be made; (3) The provision of a capital sum which would produce the net amount paid by the deceased worker to the dependants, without reduction of capital would not be "reasonable and proportionate to the injury"; (4) The calculation of the sum payable did not involve the mechanistic application of actuarial tables but could take into account facts particular to the case in hand; (5) An appellate court would disturb the amount provided by the primary judge only for appealable error; (6) But the sum of $95,000 awarded was excessive and the sum of $60,000 should be