Toll North Pty Ltd v Workers' Compensation Regulator
[2015] ICQ 4
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- Toll North Pty Ltd v Workers' Compensation Regulator[2015] ICQ 4
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Toll North Pty Ltd v Workers' Compensation Regulator[2015] ICQ 4
Toll North Pty Ltd v Workers' Compensation Regulator[2015] ICQ 4
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Toll North Pty Ltd v Blackwood & Lamb [2015] ICQ 004 |
PARTIES: | TOLL NORTH PTY LTD |
CASE NO/S: | C/2014/24 |
PROCEEDING: | Appeal |
DELIVERED ON: | 29 January 2015 |
HEARING DATE: | 20 August 2014 |
MEMBER: | President Martin |
ORDER/S: | Appeal dismissed. |
CATCHWORDS: | WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – PERSONS ENTITLED TO COMPENSATION – DEPENDANTS – DEPENDENCY – EXTENT OF DEPENDENCY – CHILDREN – where the deceased worker fathered three children – where one of the children is from a previous marriage – where the deceased worker contributed to the two household incomes in varying proportions – where the Toll Group Queensland Self Insurance Unit found that the three children were partial dependants – where the Regulator set aside that decision and substituted a new decision that the children were totally dependent on the deceased worker and the second respondent was partially dependent – where the Commission dismissed an appeal from the decision of the Regulator – whether the Commissioner confused a parental duty to maintain a child with a factual finding as to dependence – whether the Commissioner erred in his construction of s 200 and s 201 of the Workers Compensation and Rehabilitation Act 2003 and misapplied the concept of total or partial dependence Family Law Act 1975 (Cth) Workers Compensation and Rehabilitation Act 2003, s 200, s 201 Workers’ Compensation Act 1927 (Tas), s 3 |
CASES: | Aafjes v Kearney (1976) 180 CLR 199 Coles Myer Limited v Rudzinski [(2006) 5 DDCR 36; [2006] NSWCA 161 Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 McCafferty’s Management Pty Ltd v Pimlott (1995) 12 NSWCCR 360 Potts v Niddrie & Benhar Coal Co Ltd [1913] AC 531 So v So [2004] NSWCA 67 Toll North Pty Ltd v Simon Blackwood (Workers’ Compensation Regulator) & Lamb [2014] QIRC 065 |
APPEARANCES: | R Treston QC for the appellant instructed by BT Lawyers P Rashleigh for the second respondent instructed by James Law |
- [1]Part 11 of the Workers Compensation and Rehabilitation Act 2003 (“the Act”) deals with compensation available on the death of a person who is a “worker” within the meaning of the Act. Section 200 and s 201 of the Act deal with the compensation which is payable when a dependant is totally dependent (s 200) or partially dependent (s 201) on the worker’s earnings.
Factual background
- [2]The late William Lamb was a “worker” for the purposes of the Act. Each of his children is a “dependant” and a “member of the family” as those terms are defined in s 27 and s 28 of the Act respectively. The relevant facts are conveniently collected in the following paragraphs of the decision under appeal.[1]
“[4] Mr Lamb was the father of three children:
- (a)Tyler Alice Lamb, born on 23 August 1995;
- (b)Callum Walter Lamb, born on 4 February 2005; and
- (c)Ellie Anne Lamb, born on 14 May 2007.
[5] Tyler Lamb's mother is Keryn Ann Lamb (nee Winbank), who was Mr Lamb's first wife. Fiona Lamb (nee Pamplin), Mr Lamb's second wife, is the mother of Callum Lamb and Ellie Lamb.
[6] Mr Lamb was a worker employed by the Appellant as a full-time permanent truck driver. He suffered fatal injuries in the course of his employment in a truck accident on 14 November 2012.
[7] At the time of his death, Mr Lamb was married to Fiona Lamb, with whom he resided with their two children, Callum (then aged 7 years) and Ellie (then aged 5 years).
[8] Tyler Lamb was 17 years old at that time and resided with her mother in Leeton, New South Wales.
[9] At the time of Mr Lamb's death:
- (a)Mr Lamb contributed 60 percent of the total household income;
- (b)Fiona Lamb, who was in full-time employment at that time, contributed 40 percent of the total household income;
- (c)neither Callum Lamb nor Ellie Lamb derived an income or contributed to the household income;
- (d)Mr Lamb contributed approximately 17.6 percent of his income in child support for the benefit of Tyler Lamb.”
- [3]In March 2013 the Toll Group Queensland Self Insurance Unit decided that “all of the worker’s dependants were at the time of the worker’s death, partially dependent on the worker’s earnings”. The second respondent, Fiona Lamb, applied to the Regulator for a review and the relevant officer set aside the decision to assess Callum, Ellie and Tyler Lamb as partial dependants and substituted a new decision that those children were totally dependent upon William Lamb and that Fiona Lamb was partially dependent upon him. The appellant unsuccessfully appealed from that decision.
- [4]Toll Group seeks a reinstatement of the decision made by its Self Insurance Unit.
Legislation
- [5]The relevant sections of the Act provide:
“27 Meaning of dependant
A dependant, of a deceased worker, is a member of the deceased worker’s family who was completely or partly dependent on the worker’s earnings at the time of the worker’s death or, but for the worker’s death, would have been so dependent.
28 Meaning of member of the family
A person is a member of the family of a deceased worker, if the person is—
- (a)the worker’s—
- (i)spouse; or
- (ii)parent, grandparent or step-parent; or
- (iii)child, grandchild or stepchild; or
- (iv)brother, sister, half-brother or half-sister; or
- (b)if the worker stands in the place of a parent to another person—the other person; or
- (c)if another person stands in the place of a parent to the deceased worker—the other person.
200 Total dependency
- (1)This section applies if at least 1 of the worker’s dependants was, at the time of the worker’s death, totally dependent on the worker’s earnings.
- (2)The amount of compensation payable for the worker’s dependants is—
- (a)if the worker has left dependent members of the worker’s family, for the members—$374,625; and
(aa) if the worker has left a totally dependent spouse, for the spouse—$10,000; and
(ab) if the worker has left a totally dependent spouse and dependent members of the worker’s family who are under 6, for the spouse—a weekly amount equal to 8% of QOTE while a dependent member is under 6; and
- (b)if the worker has left a totally dependent spouse and dependent members of the worker’s family who are under 16 or are students, for each member other than the spouse—$20,000; and
- (c)if the worker has left dependent members of the worker’s family or a child of the worker’s spouse who was totally dependent on the worker’s earnings and who are under 16 or students, for each member or child—a weekly amount equal to 10% of QOTE while the member or child is under 16 or a student.
201 Partial dependency
- (1)This section applies if all of the worker’s dependants were, at the time of the worker’s death, partially dependent on the worker’s earnings.
- (2)The amount of compensation payable for the worker’s dependants is—
- (a)if the worker has left dependent members of the worker’s family, for the members—an amount the insurer considers is reasonable and proportionate to the monetary value of the loss of dependence by the dependants; and
- (b)if the worker has left dependent members of the worker’s family or a child of the worker’s spouse who was partially dependent on the worker’s earnings and who are under 16 or students, for each member or child—a weekly amount equal to 7% of QOTE while the member or child is under 16 or a student.
- (3)However, the amount payable under subsection (2)(a)—
- (a)must not be less than 15% of the amount payable under section 200(2)(a); and
- (b)must not be more than the amount payable under section 200(2)(a).”
Basis of appeal
- [6]Toll Group, in its notice of appeal, identified some 16 errors in the Commissioner’s reasoning. These grounds were reduced to two basic issues in the appellant’s submissions. First, did the Commissioner confuse a parental duty to maintain a child with a factual finding as to dependence? Secondly, did the Commissioner err in his construction of s 200 and s 201 of the Act and misapply the concept of total or partial dependence?
Findings of the Commissioner
- [7]In paragraph [73] of his reasons, the Commissioner began his consideration of the propositions which he said were at the heart of the respondent’s case:
- (a)That both parents are jointly and severally responsible for providing the necessities of life for their children; and
- (b)That a child can be “totally dependent” on the earnings of both parents.
- [8]The appellant accepts that, at least since the child maintenance provisions were introduced into the Family Law Act 1975 (Cth), the parents of a child have a duty to maintain it. Indeed, it is uncontroversial that the parents of children have a joint and several obligation to provide for them.
- [9]After a lengthy examination of the authorities which have dealt with similar provisions in other legislation, the Commissioner considered the financial circumstances of the children. As to the two younger children he said:
“[113] First, I need to assess the financial situation of the children and the extent of their dependence on the earnings of both their parents at the date of Mr Lamb's death. The financial situation of Callum and Ellie Lamb at that date is clear. They depended on the earnings of both parents and apparently had no other source of financial support. Given their ages, they could not have earned income and could not have been other than totally dependent on the earnings of their parents.”
- [10]Tyler Lamb was 17 at time of Mr Lamb’s death and did not live with him. Her financial situation was, the Commissioner said, less clear.
- [11]His conclusions appear in the following paragraphs:
“[127] On the evidence in this case it is clear that each of Tyler, Callum and Ellie Lamb was dependent on the earnings of their father Mr Lamb at the time of his death. Mr Lamb was legally obliged to devote at least part of his earnings to the support of his dependent children and he did so. Indeed, the majority of the household income from which Callum and Ellie drew support was provided by Mr Lamb. He also provided a substantial proportion of the financial support given to Tyler.
[128] Given the analysis of s 200(1) set out earlier in these reasons, it is open to the Commission to find that the children were totally dependent on Mr Lamb's earnings at the time of his death if there is evidence to support such a finding.
[129] The evidence summarised above in relation to the two younger children falls well within the range of circumstances that other courts and tribunals have found to satisfy a finding that a dependant is wholly or totally dependent on a deceased parent.
[130] That is enough to deal with the issue in this case, i.e. that at least one of the worker's dependants was, at the time of the worker's death, totally dependent on the worker's earnings.
[131] The evidence in relation to Tyler is less clear. However, by reference to the decision in analogous cases, I consider that such a finding can also be made in relation to her.
[132] Accordingly, I am satisfied that, for the purpose of s 200(1) of the Act, Callum Walter Lamb, Ellie Lamb and Tyler Alice Lamb were, at the time of the death of their father William Lamb, totally dependent on Mr Lamb's earnings.”
Parental duty and dependency
- [12]The appellant’s case is that the duty to provide cannot inform the factual enquiry as to the level of dependence “on earnings”. It argued that the concept of dependency on earnings does not readily permit of a factual finding of total dependence on the earnings of one person alone where two income earners pool income to meet family needs. The task, the appellant says, is to closely examine the level of dependence, total or partial, on the earnings of the deceased worker without needing to consider the parent duty to maintain the child. Although legislation in other jurisdictions differs in the manner in which the dependency is expressed, assistance can be gained from a consideration of those authorities in which dependency has been considered.
- [13]The word “dependant” is defined in s 27 of the Act but not in any particularly helpful way. What needs to be considered is what dependant means in the type of legislation under consideration.
- [14]In Kauri Timber Co (Tas) Pty Ltd v Reeman[2] the High Court considered s 3 of the Workers’ Compensation Act 1927 (Tas) in which the “dependants” of a worker were defined as “such members of the family of the worker in relation to whom the term is used as – (a) were dependent, wholly or in part, upon the earnings of that worker at the time of his death …”. The applicant in that case was the widow of the deceased worker. At all material times she had a small income from property of her own, out of which she purchased and maintained a motor vehicle. She did not use any part of her income for ordinary household expenses, which were paid by the worker, who otherwise supported her out of his weekly earnings. Barwick CJ, having referred to an English decision, said that the question of dependency is not to be answered by reference to legal obligations. He also said[3] that “the legal or moral obligations are not decisive of what is maintenance and support in any particular case”. After consideration of the authorities he said[4]:
“In my opinion, the notion of total dependency in the case of workers’ compensation leaves room for a wife to have personal income employed by her for her personal purposes without trenching on that area of expenditure which can properly be called expenditure for her maintenance and support.”
- [15]Gibbs J agreed with him on this point. He said:[5]
“… It follows that the fact that a woman has some property and income of her own does not prevent her from being wholly dependent on the earnings of her husband, if in fact she wholly depends on those earnings for her support, and does not partly support herself out of her own resources.”
- [16]
“It cannot be turned into a question of law by the citation of authorities. The only question of law which can emerge in a case such as the present is whether there was any evidence on which the Commission could conclude that in fact the respondent was wholly dependent on her father for support.”
- [17]In that case, Gibbs J referred to his reasons in Kauri Timber where he accepted that one person is dependent on another for support if the former in fact depends on the latter for support even though he does not need to do so and could have provided some or all of his necessities from another source. He went on to say:[8]
“I adhere to that view but it does not follow from it that a person who in fact receives some support from one person cannot properly be said to be wholly dependent on another. It is not the mere fact of receipt of support but the dependence or reliance upon another to provide it that matters.”
- [18]
- (a)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
- (b)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.
- (c)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 dependant of her benefactor and therefore as not wholly dependent on her father.
- [19]In the same case Mason J affirmed that whether dependency exists and whether it is whole or is partial are questions of fact. It follows, he said, “that a finding by the tribunal of fact is conclusive unless there was no evidence to support it or it was vitiated by some error of law”.[10]
- [20]An attempt was made to distinguish the authorities which deal with legislation where the reference is to total or partial dependence on the worker for support as opposed to the requirements in s 200 of the Act, namely, that the dependant was totally dependent on the worker’s earnings. That, of course, raises the question: in what way is a dependant dependent on a worker’s earnings? It is difficult to conclude other than that the dependency is on the worker’s earnings for support. The reference to “earnings” merely confines the question of dependence to the earnings of the worker as opposed to any other income which that worker might have from, say, interest or rental income. It is for that reason that I regard the authorities which deal with legislation concerning dependency on a worker for support as being of considerable assistance in consideration of the meaning of s 200 and s 201.
- [21]In Aafjes, Mason J did refer to United Kingdom legislation where there was a specific reference to a person being “wholly dependent upon [the worker’s] earnings”. He went on to consider the New South Wales legislation where the word “support” is used and said:[11]
“…the association of the words ‘wholly dependent’ with the words ‘for support’ makes it even more apparent that the existence of a legal obligation to support is an important factor to be taken into account in the application of the section. The English provisions were more susceptible to a construction which confined their application to the inquiry: Are the deceased's earnings the applicant's sole source of support?”
- [22]
“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 effect the conclusion that by the father's death they lost something on which they could depend.”
- [23]In So v So[14] the relevant legislation in New South Wales which refers to a dependant being “wholly dependent for support” was considered. Santow JA (with whom Meagher JA and McColl JA agreed) said that it was clear from cases following Aafjes v Kearney that the focus is not upon the relative amounts each parent actually paid or provided but 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.[15]
- [24]In its written submissions reference the appellant refers to the decision of the New South Wales Court of Appeal in McCafferty’s Management Pty Ltd v Pimlott.[16] In that case the deceased and his wife had both earned income and their child was a secondary school student. The evidence demonstrated that the parents’ income was pooled to pay off the mortgage and meet other commitments. Meagher JA, who gave the leading judgment, concluded that the deceased had a legal obligation to support his wife and that was in no way diminished if his wife was under an equal and coordinate obligation. The other members of the Court, Priestley JA and Clarke JA, did not find it necessary to consider the issue of whether a child could be totally dependent on each of its parents.
- [25]The reasoning of Meagher JA was considered by Santow JA in So v So. After reciting some of the reasons of Meagher JA, Santow JA said:
“[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 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 Ltd v Walsh (2000) 19 NSWCCR 629. 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]).”
- [26]Further consideration was given to the decision in McCafferty in Coles Myer Limited v Rudzinski.[17] The issue in that case was whether the respondent’s children were “totally or mainly dependent for support on the worker …”.
- [27]In that case, McColl JA (with whom Beasley JA and Tobias JA agreed) expressly accepted that “the obligation of each parent to support a child is joint and several, and a child may be in a particular case totally dependent upon one parent for support notwithstanding that he or she is totally dependent also upon the other parent” and that “total dependence is not incompatible with the receipt of support from someone else”.[18]
- [28]The parental duty to maintain a child is relevant to the determination of dependency where both parents contribute to that maintenance. In considering that duty and then assessing the issue of dependence, the Commissioner made no error.
Total v partial dependence
- [29]The argument for the appellant under this heading is that unless one proceeds on the basis that where partial support comes from a source other than the deceased’s earnings, a dependant is not wholly dependent on the earnings of the deceased, but is only partially dependent, would be to leave s 201 of the Act with no work to do.
- [30]This construction centres only on a consideration of the position of children. The definition of dependant in the Act concerns a member of the deceased worker’s family and that term is defined to include people such as a parent, grandparent or stepparent of the deceased as well as a brother, sister, half brother or half sister and so on. Further, a person is a member of the family of a deceased worker if the person is someone who stands in the place of a parent to the deceased worker. The argument that to construe the Act in the way that the Commissioner has leaves no work for s 201 cannot stand. Part of the reasoning with respect to the situation of children is that a particular type of duty is owed which does not exist as between a worker and, for example, the worker’s parents. Different considerations come into existence and s 201 can apply in those circumstances.
Conclusion
- [31]The appellant has not demonstrated that there was any error committed by the Commissioner in arriving at the conclusion he did. There was evidence to support his finding and no error of law has been demonstrated.
- [32]The appeal is dismissed.
Footnotes
[1]Toll North Pty Ltd v Simon Blackwood (Workers’ Compensation Regulator) & Lamb [2014] QIRC 065.
[2] (1973) 128 CLR 177.
[3] Ibid at 181.
[4] Ibid at 180.
[5] Ibid at 189.
[6] (1976) 180 CLR 199.
[7] Ibid at 202.
[8] Ibid at 207-208.
[9] Ibid at 208.
[10] Ibid at 210.
[11] Ibid at 211.
[12] [1913] AC 531.
[13] Ibid at 537-538.
[14] [2004] NSWCA 67.
[15] Ibid at [16].
[16] (1995) 12 NSWCCR 360.
[17] (2006) 5 DDCR 36; [2006] NSWCA 161.
[18] Ibid at [11].