New South Wales Court of Appeal CITATION : So v So [2004] NSWCA 67 HEARING DATE(S) : 2 February 2004 JUDGMENT DATE : 12 March 2004 JUDGMENT OF : Meagher JA at 1; Santow JA at 2; McColl JA at 35 DECISION : (1) Appeal allowed with costs in favour of the appellant; (2) That an award be made in favour of the appellant in the sum of $253,651 pursuant to s25(1)(a) of the Workers Compensation Act 1987 and weekly payments at the rate of $80.60 pursuant to s25(1)(b) of that Act from 20 July 2000 for such period as the appellant was a student until the appellant reached the age of 21 years, and that such award be substituted for the award of His Honour Judge Bourke made on 19 December 2002. CATCHWORDS : WORDS and PHRASES - meaning of a dependant being "wholly dependent for support" on her mother in terms of s25 of Workers Compensation Act 1987 - history and UK antecedent of legislation - can be wholly dependent on both mother and father notwithstanding greater financial contribution by father - test to be applied based on dependence on the equal and co-ordinate obligation of both parents being discharged - relationship with s26 of Workers Compensation Act 1987. - PRACTICE and PROCEDURE - error of law for purpose of s32 of Compensation Court Act 1984. Compensation Court Act 1984 (NSW) s32 LEGISLATION CITED : Workers Compensation Act 1926 s8(2) Workers Compensation Act 1987 s25; s26; ss79 to 82 Aafjes v Kearney (1976) 180 CLR 199 Ambulance Service of New South Wales v Daniel (2000) 19 NSWCCR 697 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bruest v Commissioner for Railways [1957] 31 WCR 131 Hodges v Scotts Provision Stores Pty Limited (1964) NSWR 887 CASES CITED : Holdlen Pty Ltd v Walsh (2000) 19 NSWCCR 629 Hope v the Council of the City of Bathurst (1980) 144 CLR 1 Jeffrey v Commissioner for Government Transport [1957] SR(NSW) 634 Khan v Terry Shields Toyota Pty Ltd (1990) 6 NSWCCR 233 McCafferty's Management Pty Ltd v Pimlott (1995) 12 NSWCCR 360 Potts v Niddrie & Benhar Coal Co Ltd [1913] A.C. 531 Warilla Timber & Hardware Pty Ltd v Newton (1995) 11 NSWCCR 546 PARTIES : Marianna SO (Appellant) Peter SO (Respondent) FILE NUMBER(S) : CA 40014/03 COUNSEL : G Little, SC/ M Crimmins (Appellant) P Maiden, SC (Respondent) SOLICITORS : Flynn Conn (Appellant) Timothy J Doubleday (Respondent) LOWER COURT Compensation Court JURISDICTION : LOWER COURT CC 47078/01 FILE NUMBER(S) : LOWER COURT Burke AJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40014/03 MEAGHER JA SANTOW JA McCOLL JA 12 MARCH 2004 Marianna SO v Peter SO Judgment 1 MEAGHER JA: I agree with Santow JA. 2 SANTOW JA: INTRODUCTION and OVERVIEW The principal issue in this case can be simply stated. Did the trial judge err in law in concluding that the appellant was not, in terms of s25 of the Workers Compensation Act 1987 ("the Act"), a dependant " wholly dependant for support " on her mother, who died from an injury in course of her employment in her husband's restaurant? 3 To describe the circumstances very broadly, the appellant had been awarded a reduced lump sum on the basis that the appellant was only in part dependent upon her mother for support. This was, pursuant to s26 of the Act rather than s25 so giving rise to a further question. If such award was governed by s26 of the Act and not s25, was the award to the appellant as a dependant, "reasonable and proportionate to the injury" she suffered? 4 The appellant contends that the amount of compensation payable should have been calculated as for a dependant wholly dependent for support on her deceased mother, as the worker. In that case, she should have been compensated pursuant to s25(1)(a) of the Act receiving $211,850 (plus indexation). In addition she should have received an amount of $66.60 per week (plus indexation) in respect of the period that the appellant was a "dependant child of the worker being a student over the age 16 years but under the age of 21 years" within the meaning of s25(1)(b)(ii). 5 The relevant provisions of ss25 and 26 of the Act are as follows: 25 Death of worker leaving dependants (1) If death results from an injury, and the worker leaves any dependants wholly dependent for support on the worker, the amount of compensation payable by the employer under this Act shall be: (a) the amount of $211,850, and (b) in addition, an amount of $66.60 per week in respect of: (i) each dependent child of the worker under the age of 16 years, and (ii) each dependent child of the worker being a student over the age of 16 years but under the age of 21 years. (2) Payments in respect of a dependent child under subsection (1) (b) shall continue: (a) except as provided by paragraph (b)—until the child dies or reaches the age of 16 years, whichever first occurs, or (b) in the case of a dependent child who is a student at the time of the worker's death or after reaching the age of 16 years—until the child dies, reaches the age of 21 years or ceases to be a student, whichever first occurs. ……… (5) In this section: "child of the worker" means a child or stepchild of the worker and includes a person to whom the worker stood in the place of a parent. "dependent child of the worker" means a child of the worker who was wholly or partly dependent for support on the worker. "student" means a person receiving full-time education at a school, college or university. 26 Death of worker leaving partial dependants (cf former s 8 (2)) 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: (a) if the employer so agrees—the amount that would have been payable under section 25 if those dependants had been wholly dependent on the worker, (b) if agreement is reached for the payment of an amount less than the amount provided by paragraph (a) and the amount agreed on is approved by the Commission as reasonable and proportionate to the injury to those dependants—the amount so approved, or (c) in default of agreement as to the amount to be paid or in default of approval by the Commission for payment of an agreed amount under paragraph (b)—such amount (not exceeding the amount provided by paragraph (a)) as is determined by the Commission to be reasonable and proportionate to the injury to those dependants." 6 The approach of the trial judge was to identify the total amount paid by way of support to the appellant, apportioning the quantum paid by the surviving husband as against that paid by the mother out of her own funds. The trial judge reapportioned to the father money paid by the father through the conduit of the mother to their daughter. The trial judge concluded that the mother had only partially supported the appellant. On that reasoning it therefore followed that the appellant was not "wholly dependent for support" on her mother. This the trial judge so found, awarding her a lump sum of $7,500 pursuant to s26 of the Act and no weekly payments. 7 The appellant challenges that finding as failing to apply the proper statutory test. In particular the appellant contends that the trial judge failed to pay proper regard to the mother's equal and co-ordinate obligation as a parent to provide support and her daughter's reliance upon her to do so. That constituted the proper statutory test to determine whether she was indeed wholly dependent on her mother for such support. It was submitted that a child could, despite unequal financial contributions by each parent, be in that way wholly dependent on both. SALIENT FACTS 8 I turn now to the salient facts which were not themselves in dispute: (1) Marianna So, the appellant, born 9 October 1983, claimed lump sum compensation pursuant to s25(1)(a) of the Act ($211,850). She also claimed the weekly payments provided by s25(1)(b)(ii) of $66.60 per week for herself as a dependent child of the worker being a student over the age of 16 years but under the age of 21 years. The appellant claimed as the totally dependent daughter of her mother, the late Lydia So, contending that she was wholly dependent on her mother. (2) Peter So, surviving father of the appellant, operated the licensed restaurant at the Dunedoo Golf Club and did so for a number of years. The restaurant traded five nights each week from Wednesday to Sunday inclusive. He employed his wife, Lydia So, mother of the appellant, who worked in the restaurant mainly on Fridays and Saturdays. The family resided in Dubbo and commuted to and from Dunedoo by car. (3) Marianna So, as at mid-2000, was a student in High School. Occasionally she, and her brother Alfred, would give some assistance in the restaurant. That was unremunerated and constituted part of the children's contribution to the family. (4) On 20 July 2000, a function at the Golf Club concluded later than usual. Peter So and Lydia So cleaned up and left for home in the family car about 11 pm. Peter So was driving with Lydia So in the front passenger seat. On the journey their car was apparently run off the road and crashed. Lydia So died the following day, 21 July 2000. Peter So was injured, so seriously that he was unable to continue to conduct the restaurant at the Golf Club and the business ceased soon after the accident. (5) For the financial year ended 30 June 1999, Lydia So had been paid $3,840 for her services at the restaurant, a weekly average of about $73. Her other income was the youth allowance paid by the Commonwealth in respect of Marianna So of $4,448, a weekly average of about $85. Subsequent to Lydia So's death that allowance has been paid directly to Marianna So. Peter So's net income from the business was $15,520 in the same year, representing a weekly average of about $298. (6) Marianna So had prepared a list of financial benefits derived from her mother and that was tendered before the trial judge in evidence (as Exhibit C). It showed gross receipts of $5,800 for the year ended 30 June 2000. That is around $111 per week. Marianna So deposed that she mostly got money from her mother though occasionally she got it from her father. Her father deposed that he gave money to his wife for the children. That appears to have amounted to $20-$30 per week. (7) The appellant lived with her parents in the family home. That was subject to a mortgage. Her father Peter So met the repayments, rates and taxes on the home, insurance and usual out-goings. The restaurant business provided some items of food for the family. The general food items were provided from the family income. (8) Marianna So's brother Alfred also resided at home. As at mid-2000 he was doing a Bachelor of Commerce course and working part-time in Dubbo. He makes no claim under the Act nor does Peter So. Following Lydia So's death Alfred did not undertake the 2001 year of his course. Marianna So completed High School towards the end of 2001. She had intended to enrol at the University of Newcastle in a course in Information Technology but deferred that for 2002 and enrolled for the 2003 year. (9) It was submitted at trial and again on appeal that she was, at the time of her mother's death, wholly dependent for support upon her mother. That submission was not put on the basis of being wholly dependent only on her mother. It was contended that she could be wholly dependent on both her mother and father. The appellant at trial relied on Aafjes v Kearney (1976) 180 CLR 199 and McCafferty's Management Pty Ltd v Pimlott (1995) 12 NSWCCR 360 (Court of Appeal), as also Holdlen Pty Ltd v Walsh (2000) 19 NSWCCR 629 a decision of the Court of Appeal. Reference was also made to a decision of Manser J in the Compensation Court Khan v Terry Shields Toyota Pty Ltd (1990) 6 NSWCCR 233. (10) The late Lydia So had an income of $73 per week from her husband's business. She also received the youth allowance from the Commonwealth because she was the mother of Marianna So. Subsequent to her death that allowance was paid directly to Marianna So. Therefore Marianna never lost the benefit of that allowance even if all of it was previously disbursed to meet her needs. (11) The trial judge noted that on one view of the facts, if Marianna So received her calculated gross receipts of $5,800 from her mother (the year prior to the death) then $4,448 of that sum could have been defrayed from money representing youth allowance provided by the Commonwealth through her mother as conduit, not source. (12) The trial judge likewise noted that the appellant's mother was also the conduit through which some of the money generated by Peter So passed to Marianna's benefit. (13) Both Marianna and Alfred suspended their tertiary education courses following the death of their mother because of obvious financial constraints. The trial judge concluded (at [20]) that while payment of a weekly sum under s25(1)(b)(ii) had thereupon to cease, this had no effect on the situation of a lump sum paid under s26 in circumstances as he saw them of partial dependency. Those financial constraints arose not so much from the death of Lydia So but from the incapacity of Peter So whose business ceased with his injuries. The business was the essential source of the income which supported all the family. (14) The trial judge observed that: "If a wife does not work and has no independent income but channels the income of the husband to defray all overheads, household expenses and the like and provide for the children who receive nothing directly from the father it would seem to me untenable in defence of a claim in respect of the death of the husband to suggest that the children were not totally dependent upon the husband but rather were so dependent upon the wife. It may have been the coat of Joseph but it was the hand of Esau." (15) However, even if that were so, that was not the circumstance here. The wife did work and some of her income ($25 to $30 per week) was found (at [22]) to have been directly provided by her in support of her daughter. The trial judge concluded that Lydia So, from her own resources as distinct from being a channel for those generated by Peter So, partially supported Marianna (at [17]). (16) The trial judge then purported to calculate in financial terms what was reasonable and proportionate to the "injury" to the appellant. It can be inferred that the trial judge was intending to do so pursuant to s26 of the Act. It requires, in the absence of agreement, calculation of such amount "as is determined by the Commission to be reasonable and proportionate to the injury" to the dependant. The trial judge reasoned as follows ([21]): "It is the present value of the total support that she would likely have received from Lydia had she lived. In financial terms the measure of that support as a weekly amount was clearly not large. The evidence does not develop any of the subsidiary benefits that may have been relevant. Lydia had $73 per week from which to offer support. She would likely use some on her own account, at least in theory. In practice she and Peter operated a joint account and there was probably no actual separation of their incomes. It appears to have been a common fund used to satisfy various needs." (17) The trial judge found (at [22]) Alfred "seems to have been more independent than Marianna in that he had some employment and to that extent had funds from which he was able to cater for his own needs to some degree. It would therefore seem likely that Marianna would attract rather more of Lydia's largesse than he. Overall it seems likely that Marianna would have benefited from her mother to the extent of about $25 to $30 per week." (18) In necessarily considering "past happenings and future probabilities" ( Jeffrey v Commissioner for Government Transport [1957] SR(NSW) 634 per Street CJ) the trial judge observed: "Marianna is presently aged 19. Next year she proposed to commence university. The length of the Information Technology course is rather speculative but probably about three years. She should complete those studies by about age 22. Assuming a successful completion she would be reasonably qualified to earn her own living. That would not have ended her relationship with her mother but would surely reduce her dependency on her mother to minimal proportion. Within the few years following that one would anticipate a stable relationship and that she would essentially go her own way." (19) The trial judge then calculated the lump sum ($7,500) that was his sole award as follows (at [25]): "Broadly one would expect the support being given at death to have continued for about five and half years and while then probably not ceasing completely to substantially reduce for a few years thereafter before ceasing for all practical purposes. On the basis of $25-$30 per week the initial period accumulates to between $7,000 and $8,500. Add something of the order of $1,000 to $1,500 for the few years following gives an all up figure of $8,000 to $10,000. All in all I would think the present value of that support to be $7,500." (20) The trial judge made no award of any weekly payment, proceeding, it can be inferred, on the basis that s26 made no provision for anything other than a lump sum, to be determined by the Commission pursuant to s26(c) in default of agreement. In argument on this appeal, the question was for the first time canvassed whether the reference in s26(a) to s25 might suggest the importation into s26 not only of a lump sum award (being such as is determined to be reasonable and proportionate to the injury) but also the capacity to award the weekly payments, notwithstanding the reference throughout s26 to "amount" in the singular. (21) The trial judge then formally found ([26]): "1. Lydia So died on 21 July 2000 as a result of injuries received the day prior of a periodic journey between her place of employment and her place of abode. 2. At the time of death her daughter, Marianna So, was partially dependent upon her for support. 3. There were no other persons dependent in whole or in part upon her. 4. The sum reasonable and proportionate to the injury suffered by Marianna So as a consequence of the death is $7,500." DISPOSITION OF THE APPEAL 9 The UK antecedents of this legislation are described in an appendix to this judgment. It is derived from the researches of counsel for the appellant, Mr Little. It is significant that the original form of that legislation focused on whether a dependant was wholly dependent upon the deceased's earnings at the time of his death. Thus s8(2) of the Workers Compensation Act 1926 referred to a deceased worker who "… does not leave any dependants wholly dependent upon his earnings, but leaves dependants in part dependent upon his earnings". The change in wording from "earnings" to "support" occurred in amendments in 1965. That legislation also incorporated into the section a wider test of dependency; Warilla Timber & Hardware Pty Ltd v Newton (1995) 11 NSWCCR 546 at 554 per Kirby P. 10 In Aafjes v Kearney [1975] 180 CLR 199 Mason J observed that "the English provisions were more susceptible to a construction which confined the application to the inquiry: are the deceased's earnings the applicant's sole source of support?" (at 211). Notwithstanding, that construction was not adopted in the United Kingdom; Potts v Niddrie & Benhar Coal Co Ltd [1913] A.C. 531, cited by Mason J with approval in support of the wider inquiry which he adopted. In Potts (supra) the applicant successfully claimed against her father who had deserted his wife and child leaving support to be provided by others. 11 Viscount Haldane LC in Potts identified the test for being wholly dependent in these terms: "The true question in the present case is, in my opinion, whether there was, as one of the facts to be taken into account, an effective and valuable legal right. If there was such a right, and there was no legal difficulty in the way of enforcing it, then the mere fact that a want of opportunity to resort to it, which might have proved only temporary, had reduced the mother and children for the time to living on charity, cannot affect the conclusion that by the father's death they lost something on which they could depend." (at 538) 12 Likewise Lord Shaw of Dunfermline, similarly cited with approval by Mason J, observed: "On the one hand, there may be a temporary absence of a husband or a father, with the expectancy of immediate aid on the part of those left behind. That is the one extreme. On the other hand, there may be a long absence entirely acquiesced in, and those left behind may live a separate and completely independent life, having no reliance whatsoever either upon support actually obtained or possible through the agency of the law. Between those two extremes there are many gradations, leaving room for the arbitrator to pronounce upon dependency — whether it is total or partial, or whether it exists." (at 541) 13 Aafjes v Kearney (supra) was a case in which the question for determination was whether there was evidence open to the Commission to determine that a child was wholly dependent on the deceased, a divorced husband. Put against that was the fact that the stepfather provided accommodation for the child and its mother and her mother made some of the child's clothing. Nonetheless in concluding that there was evidence open to the Commission to hold that the child was wholly dependent on the absent father, Mason J set out what has since been accepted as the guiding principle: "The dominating consideration here and in the United Kingdom is a strong disinclination, founded on common sense, to attribute to the legislature an intention to deprive an applicant of a claim based on total dependency for support where a legal obligation to provide that support exists which has not been abandoned, merely because the applicant is in receipt of benefits from others, whether proceeding from charity or some other motive. Once this approach to s8(1) is adopted, as in my opinion it should be, the conclusion is inevitable that there was evidence to support the Commission's decision on the issue of fact. The deceased was under a legal duty to maintain the respondent. …… The fact that the respondent was permitted by her stepfather to live in the home which he and her mother had established should not be regarded as a contribution by him to her support or maintenance but rather as a kindness and benefit on his part to the respondent's mother so as to enable her to enjoy the society and companionship of her daughter. Seen in this light the provision of accommodation did not detract from the respondent's total dependence for support on her father. Nor, for that matter, did the provision of some clothing by the mother have that effect." 14 Similarly Gibbs J (at 208) observed: "The question whether there is in fact dependence or reliance at the date of death is not to be answered by looking only to the circumstances as they existed at that date; "past events and future probabilities" have to be considered. The fact that at the date of death a daughter was being supplied with some of the necessities of life by some third person does not necessarily mean that she was not then wholly dependent for her support upon her father. Obviously enough if the assistance provided by the third person was only intermittent or casual, and unlikely to be continued in the future, it would not prevent the daughter from being wholly dependent on her father. But even if the assistance was substantial and likely to be continued, it would not necessarily have the effect that the child had to be regarded as a partial dependent of her benefactor and therefore as not wholly dependent on her father. For example, a child whose home was in the country and who lived with her grandparents while attending a school in the city would not for that reason alone cease to be wholly dependent upon her father." [omitting footnotes] 15 In the present case the assistance provided by the father was substantial. But so too was the assistance of the mother in the straitened circumstances of this family. If one excludes the youth allowance as the trial judge properly did, the amount provided directly by the mother was held to be $25 to $30 per week or $1,300 to $1,500 per year whilst the father gave a similar amount of $20 to $30 per week. Obviously his contribution was in other respects much greater. Thus he provided the house in which the family lived making re-payments of the mortgage, and he paid the rates and taxes. Nonetheless both parents provided essential support. 16 In any event, as is clear from cases following Aafjes v Kearney the focus is not upon the relative amounts each parent actually paid or provided. Rather it is upon the legal obligation of the deceased parent to have supported the child and the reliance placed by that child upon fulfilment of that parental obligation. So in McCafferty's Management v Pimlott (supra), the Court of Appeal concluded that it was open to the trial judge as a matter of law to find total dependency of the child on its deceased parent. This was in circumstances where both parents were working and pooled their incomes from which house mortgage and hire purchase commitments were paid. Meagher JA concluded that the trial judge had been correct to find the child wholly dependent on the deceased father for the following reasons: "1. The legal obligation of the deceased is to support his child. This is in no way diminished if, as is possible, his wife was under an equal and coordinate obligation. They were both, in my view, under a joint, or joint and several obligation, to provide for her; and she was totally dependent on each of them. 2. As Dignam J said in Bruest's case [ Bruest v Commissioner for Railways [1957] 31 WCR 131], in a dictum which is equally applicable here, "the child looks to its father as the principal bread winner of the family", a statement which is still true of what is demanded by social convention if not by legal obligation. 3. Looking at past events and further possibilities, the fact that Mrs Pilmott intended to retire from the work force at the age of 40 emphasizes the totality of the child's dependence on its father." [at 364] 17 I do not understand Meagher JA to be here drawing any distinction in principle between a child looking to its father as compared to its mother. It is a commonplace that there is considerable individual diversity in the varying ways couples choose to order their individual finances and share their obligations as householders and parents. They may choose to pool earnings or the reverse. It is often quite adventitious whether a greater amount emanates from one parent rather than the other, reflecting the variety of domestic arrangements as well as unequal earnings. None of that diversity should detract from finding "an equal and co-ordinate obligation" by each parent to support the child. 18 Moreover, whilst Bruest v Commissioner for Railways [1957] 31 WCR 131 produced the quoted observation that "the child looks to its father as the principal breadwinner of the family" that should not in contemporary society alter the fact that a child will no less rely on its mother as its father fulfilling an equal and co-ordinate obligation to provide support. 19 This approach is wholly consistent with that taken by the Court of Appeal in Holdlen Pty Limited v Walsh (supra). There Giles JA observes "dependence does not look only to the fact of receipt of support, but also to reliance on another to provide it. Total dependence is not incompatible with the fact of receipt of support from someone else" (at [51]). 20 Turning to the present case, as the transcript makes clear (Black, 21 and 25) counsel then appearing for the applicant pressed, so far as he was allowed to, that here was a situation where the applicant was wholly dependent upon her deceased mother for support no less than on the father. He briefly cited the decisions to which earlier reference has been made. The trial judge, with respect, appears to have instead applied an erroneous test of dependency in which the focus, as his reasoning indicates, was simply on a calculation of relative contribution. Indeed even that analysis points to a substantial contribution by the mother of a kind which the appellant in her less than affluent circumstances must have found essential for her support, no less than that which she enjoyed from her father. 21 When one turns to the actual working of ss25 and 26 of the Act the interpretation pressed by the appellant finds support. Section 25 is predicated upon the prerequisite of there being dependants who are "wholly dependent for support on the [deceased] worker". Somewhat confusingly the section concludes with a definition of "dependent child of the worker". That is, however, the expression employed in s25(1)(b) when dealing with the weekly payment as distinct from the earlier lump sum. The definition of that phrase is "a child of the worker who was wholly or partly dependent for support on the worker" [emphasis added]. Nonetheless the opening words of s25 introduce the earlier quoted prerequisite for s25 to apply, namely the circumstance that "the worker leaves any dependants wholly dependent for support on the worker". That initially would suggest that each of the ensuing subparagraphs (a) and (b) are premised upon "dependants wholly dependent for support". If correct, that would preclude a dependent child who was only partly dependent for support on the deceased worker from receiving either the lump sum or the weekly payment in subparagraphs (a) and (b) respectively. 22 Despite this tangled drafting, I am inclined to agree with the submission of the appellant that s25(1)(b) makes available the weekly payment indiscriminately to a child of the worker who is either wholly or partly dependent for support on that worker. That is more logical than the corollary that, in the adventitious circumstance where there was but one child wholly dependent for support on the deceased worker, other dependants who were but partly dependent for support on that worker should nonetheless qualify for both lump sum and weekly allowance. That would be wholly illogical and therefore tells against the interpretation which gives rise to that corollary. The very fact of a claim by someone wholly dependent must leave less not more available for other dependants. Thus I would accept the alternative interpretation of s25 that renders the lump sum in s25(1)(a) ($211,850) as available only to dependants (children or otherwise) who are wholly dependent for support on the worker. However, the weekly payment would be available indiscriminately to a child of the worker who was either wholly or partly dependent for support on the deceased worker. Importantly, that weekly payment is only payable for the period that the child is either under the age of 16 years or, being a student, is over the age of 16 years but under the age of 21 years, being the circumstance here. 23 From this it must follow that were I wrong in my conclusion that the appellant was wholly dependent for support on her mother as the deceased worker, nonetheless she would be entitled to the weekly allowance pursuant to s25(1)(b) but not the lump sum payable under s25. Her rights would otherwise fall for determination under s26. Therefore in default of agreement as to the amount to be paid that amount is determined by the Commission as that which is reasonable and proportionate to the injury suffered by the appellant from her mother's death (s26(c)). That would leave appeal ground 3 in issue, namely, whether the trial judge was in error in holding that the sum of $7,500 was reasonable and proportionate to the injury received by the appellant. But it would resolve appeal ground 4 in favour of the appellant. 24 In an exchange between Bench and Bar an alternative interpretation of the two sections was briefly considered. That interpretation would import into s26 not only the lump sum payment but also the capacity to award a weekly payment. The latter would derive from s26(a) with its reference to "the amount that would have been payable under s25 if those dependants had been wholly dependent on the worker". 25 However, in the result that I consider to be correct, namely, that the appellant was wholly dependent upon her deceased mother, that question does not arise. This is because the determination should correctly have been made under s25 of the Act at the maximum figure of $211,850 (adjusted upwards according to the indexation formula) for the lump sum and $66.60 per week (likewise adjusted) in respect of the weekly allowance. The latter would only be during the period that the appellant was over the age of 16 years and under the age of 21 years and was a student, thus excluding in the latter case the year in which she did not enrol in her studies. 26 There is one final issue to be considered. It is whether this present appeal in terms of the jurisdictional requirement of s32 of the Compensation Court Act 1984 (NSW) involves a question of law. The distinction between questions of law and fact arises here in the context of judicial review of a decision of the Compensation Court. That is a specialised tribunal whose decisions are reviewable only on a question of law. 27 Here, the appeal is brought by the party bearing the onus of proof in claiming qualification for the full amount of the lump sum and the weekly allowance. It is not an appeal by the other party where the issue is typically whether there is evidence to support a finding in favour of the party with the onus of proof. 28 In Ambulance Service of New South Wales v Daniel (2000) 19 NSWCCR 697 at 711-12 Hodgson CJ in Eq followed Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 in adopting a particular discrimen for distinguishing questions of fact from questions of law. But importantly, that discrimen arises in the sufficiency of evidence category of challenge. Hodgson CJ in Eq concluded that in that context the question of sufficiency of evidence is a question of fact when the appeal is brought by the party bearing the onus of proof, whereas it is a question of law when such an appeal is brought by the other party without that onus. This is because in the latter case the appeal is essentially whether the evidence is capable of supporting the finding under challenge. 29 Here, the challenge is not to the sufficiency of evidence to support a particular finding. Rather it is whether facts fully found fall within the provisions of the relevant statutory enactment properly construed. That is classically a question of law; Hope v the Council of the City of Bathurst (1980) 144 CLR 1 at 7 per Mason J. Hope (supra) was a case in which the challenge was brought by the party with the onus of proof. 30 Even in sufficiency of evidence cases, where the party with the onus of proof can demonstrate that "a judge's reasons show that he or she made a finding of fact relying exclusively on material that could not as a matter of law support that finding … they will disclose an error of law"; Hodgson CJ in Eq in Ambulance Service of New South Wales (supra) at 718 [81]. 31 The proposition that a finding contrary to the weight of evidence, even a perverse finding, is not an error of law, is subject to exception. As Glass JA explains in Azzopardi, an error of law may occur after the facts are found at the second stage, following fact-finding, should the tribunal misdirect itself as to the law. It can also occur at the third and final stage when applying the law to facts found, if the tribunal fails to reach the only conclusion reasonably open: "At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test ... will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open ... Accordingly this Court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of the law to the facts found." [at 157] 32 It is apparent the trial judge did misdirect himself as to the law when determining the question of dependency. He looked solely to the fact of receipt of (financial) support when, as Giles JA concluded in Holdlen Pty Limited (supra) "dependence does not look only to the fact of receipt of support, but also to reliance on another to provide it". Nowhere does the trial judge consider the legal obligation of the deceased mother to provide that support nor the reliance placed by the appellant on her mother, no less than her father, to discharge that obligation. Had he done so, no other conclusion was reasonably open than that the appellant was wholly dependent on her mother (as well as her father). Conclusion 33 The question to be resolved in the present appeal is a question of law. Accordingly, appeal lies pursuant to s32 of the Compensation Court Act 1984 to this Court. OVERALL CONCLUSION AND ORDERS 34 I conclude that the appellant succeeds in her appeal. I propose the following orders, which take into account the effect of the indexation formula in ss79 to 82 of the Act upon the amounts payable pursuant to s25(1) of that Act. (1) Appeal allowed with costs in favour of the appellant. (2) That an award be made in favour of the appellant in the sum of $253,651 pursuant to s25(1)(a) of the Workers Compensation Act 1987 and weekly payments at the rate of $80.60 pursuant to s25(1)(b) of that Act from 20 July 2000 for such period as the appellant was a student until the appellant reached the age of 21 years, and that such award be substituted for the award of His Honour Judge Bourke made on 19 December 2002. 35 McCOLL JA: I agree with Santow JA. Appendix to judgment of Santow JA – UK antecedents to Workers Compensation Legislation in New South Wales 1. The first of the English Workmen's Compensation Acts was passed in 1897. It formed part of a considerable body of statute law intended to provide protection for workers and compensation or damages in the event of injury. 2. It was substantially amended in 1906 and consolidated in 1925. It was ultimately repealed in 1946 with effect from 5 July 1948 by the Law Reform (Personal Injuries) Act 1948. It was replaced by benefits payable under the National Insurance (Industrial Injuries) Act 1946. That Act was substantially amended in 1965. In relation to death benefits it provided (copies of relevant sections are attached). 3. The National Insurance Scheme in relation to death benefits (ss.19-24) provides for weekly payments to a widow and children. 4. The first New South Wales Workers Compensation Act was enacted in 1910, repealed and replaced in 1916 and further amended in 1920 and 1926. 5. The NSW Act followed the English Act. 6. The first four lines of section 25 of the current Act are identical in terms to s8 of the 1926 Act. The benefits payable in respect of death have been amended substantially. In essence the Act initially provided for an amount equivalent to the earnings of a deceased worker in a period of four years prior to death but not exceeding 800 pounds. Subsequent amendments have provided for payment of an amount fixed without reference to the earnings of a deceased worker and payable in respect of all workers. The various amounts payable are set out in schedule 6.3.2.1 of the Workers Compensation Act at p.17, 124 of the current (loose leaf) edition of Mills. 7. It was noted by Sugerman J in Hodges v Scotts Provision Stores Pty Limited (1964) NSWR 887 when referring to authorities on the English Act from which the New South Wales Act was derived that there is a more generous scheme in New South Wales than under the UK legislation: "In England the effect of the main colliery case was overridden, and the doctrine of Simmons v White Brothers restored, by amending legislation of 1923; but that legislation, re-enacted in England as section 4(2) of the Workmen's Compensation Act 1925 and requiring a partial dependency "on contributions from that other person for the provision of the ordinary necessaries of life suitable for persons in his class and position" had not been adopted here." ********** Last Modified: 03/12/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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