Argles v Workers Compensation (Dust Diseases) Authority

Texts Cited: Nil.

Category: Principal judgment

Parties: Plaintiff – Dorothy Jean Argles
Defendant – Workers Compensation (Dust Diseases) Authority

Representation: Counsel:
Plaintiff – Mr Sharpe, J.
Defendant – Mr Birch, D.
Solicitors:
Plaintiff – Taylor & Scott Lawyers
Defendant – icare

File Number(s): 2024/00275051

Publication restriction: Nil.

Judgment

1. HIS HONOUR: This is an appeal pursuant to s8I of the Workers Compensation (Dust Diseases) Act 1942 (“the Act”). Although the Act provides for “appeals,” it is clear that what is involved is a hearing de novo. There is a complete rehearing of the matters in question before this Court. This Court is not concerned whether the Workers Compensation (Dust Diseases) Authority (“DDA”), the defendant in these proceedings, erred or failed to give proper reasons for its decision. The Court does not refer the matter back to the DDA but it determines a matter brought before it under s8I. Those principles were established in Workers Compensation (Dust Diseases) Board v Veksans (1993) 32 NSWLR 221. As in any litigation, the plaintiff, as an appellant from a decision of the DDA, must establish her case on the balance of probabilities: O’Brien v Workers Compensation (Dust Diseases) Board (2000) 22 NSWCCR 193 (Campbell CJ of the Compensation Court of NSW).

2. The plaintiff, Mrs Dorothy Jean Argles, is the widow of Mr Robert Allan Argles. In her affidavit of 1 March 2025, Exhibit A, she said at [7]:

“In 1975, at age 31, I met my husband Robert Argles (Bob), and we married on 12 July 1975. We lived together as husband and wife for almost fifty years until I lost him to mesothelioma on 29 January 2024.”

The evidence tells me that their marriage was long, happy and fruitful, and that the plaintiff’s loss has been a grievous one.

3. The workers compensation legislation in this State has long provided two types of benefits to the dependants of deceased workers: a lump sum and weekly benefits. There is no dispute that the worker died as the result of his contracting mesothelioma. The Award of the DDA (Exhibit 1) records the death of the worker on 29 January 2024 and continues thus:

“The Medical Assessment Panel constitutes under the Act certified on 29 February 2024 that:

(a) the death of the worker was reasonably attributable to the inhalation of dust in an occupation which causes a dust disease;

(b) such disease was 100% attributable to exposure in New South Wales;

(c) the worker had been previously certified on 2nd February 2023 as being 100% disabled from Pleural Mesothelioma; and

(d) the Authority approved an award to the worker on 21st February 2023.”

The DDA awarded to the plaintiff the weekly payment for a dependent wife and a lump sum of $48,414, which represents 12% of the maximum lump sum ($403,450). The plaintiff is dissatisfied by the quantum of the lump sum awarded to her and, hence, this appeal. The defendant has also paid to the plaintiff the funeral benefit of $10,000: Exhibit 14.

The worker’s career (1)

4. At the time of his death, Mr Argles, the worker, was aged 85 years. He was born in Lindfield on 8 July 1938. His father was a trained builder and ran his own business. His mother cared for the family home and for the worker-to-be and his two siblings. He attended Lindfield Public School and then Chatswood High School. He left school at the age 15 and commenced an apprenticeship with his father as a carpenter. He swore an affidavit in proceedings in the Dust Diseases Tribunal, which became Exhibit B in these proceedings. He summarised his work in his father’s business thus:

“4. … He ran a business as a builder in his own name constructing new buildings and/or renovating existing buildings on rural properties in New South Wales.

5. I worked with my father and the men he organised on these jobs for about 2 years from 1953 to 1955 in and around various country towns of New South Wales including Deniliquin, Hay, Yass and Cootamundra.”

In this work he used various types of fibro sheeting containing asbestos.

5. In 1955, he left his father’s business to continue his apprenticeship with, firstly, FCW Powell & Son (Joinery) Pty Ltd, and, from 1956 to 1958, FCW Powell & Son Pty Ltd working on multiple construction sites around Sydney building and renovating commercial buildings such as St Vincent’s Hospital. He completed his apprenticeship whilst working for this company.

6. In 1958, he went to Papua New Guinea and worked for Hornibrooks for about 4 years. He worked as a carpenter and as an onsite foreman. This was “all new construction work” involved in building roads as well as new industrial and commercial buildings. He did not work with any asbestos building products in PNG.

7. In 1962, he returned to Sydney and started 4 years of work for A.H. Bagnall as either a carpenter or onsite foreman on various building sites in and around Sydney. In this work he again used and was exposed to fibro sheeting.

8. Between 1966 and 1972 he was a self-employed carpenter working for different builders on many different sites around Sydney. He did work renovating many retail, commercial and industrial buildings near Sydney city. He also worked for various builders on “residential jobs”. During those sorts of jobs he was, again, exposed to asbestos based building products.

9. As I recited at [2] supra, he met and married the lady then known as Dorothy Allison in 1975. It is convenient to interpolate her earlier history at this point.

Plaintiff’s background before 1975

10. The plaintiff was born on 10 March 1944 in Kerang in Victoria. Kerang then was a small regional town in north-western Victoria near the Murray River. Her maiden name was Kemp. She left school about age 15. After leaving school, she worked as a clerk with Permewan Wright and then for Swan Hill Borough Council as a clerk for a number of years. The next three paragraphs of her affidavit are:

“4. In about 1964, I moved to Sydney and did clerical work with various companies.

5. In 1967, I married Stan Allison, and we had one child my eldest son Scott who was born on 23 December 1968. On 10 December 1972 Stan died of a heart attack. He left me nothing and I had to borrow money to bury him.

6. About that time I changed jobs and joined the accounts department of Colgate in Balmain. I stayed there for a number of years before changing jobs again to become a credit controller for Schwarzkopf.”

From the time of their marriage “Bob” treated the plaintiff’s son Scott Allison as his own child. “Bob” and the plaintiff had one child of their own, Jordan, who was born on 20 February 1978. The plaintiff’s two sons grew up together, both cared for by “Bob”.

The worker’s career (2)

11. In 1972, the worker obtained a Builder’s License and ran a business called “Online Construction” with a colleague, Fraser East. He was paid wages by his business for about four years from 1972 to 1976. His affidavit contains this:

“54. In this new role, I still was on the tools every now and then to assist the tradesmen but otherwise I was mainly supervising labourers, contractors and liaising with the client on site.

55. I worked on multiple locations across Sydney building new and renovating existing retail, commercial and industrial buildings. Most of that time was spent working on Norman Ross jobs for stores in Arncliffe, Parramatta, Chatswood, Gordon, Ryde and the other not far from a car racing track at some place out in Western Sydney.”

Exposure to asbestos was not as great as it had been earlier in his working career.

12. In 1977, the worker took a position as an employed builder and on-site foreman with Jennings Construction for 3 years until 1980. His affidavit contains this:

“63. I worked on many different sites across Sydney on the construction of new buildings and renovation of existing buildings including for retail, commercial and industrial use.

64. As in my previous role with Online Construction, I still was on the tools on the odd occasion to assist, but otherwise I was mainly looking after the other tradesmen, labourers and contractors on my sites and checking that their work met the plan specifications and the men had sufficient materials.”

Again, in this employment, the worker was exposed to asbestos dust.

Move to Queensland

13. In 1980, the couple (the worker and the plaintiff) decided to move their family from Sydney to Queensland. When the couple married, they lived together in a house that the worker owned, and in which he had been living, in South Strathfield. Future homes that the couple were to live in were bought by the couple as joint tenants, a form of estate planning. Upon moving interstate, the worker obtained registration as a licensed builder in Queensland. Other changes were to banking arrangements. [18] of the plaintiff’s affidavit is this:

“When we moved to Queensland we set up a joint bank account with NAB and later moved our joint bank account to St George Bank. We also purchased some shares in joint names which we sold to do a trip around Australia except some Telstra and Suncorp shares which we kept in our joint names until Bob died. Bob also used to have life insurance with AMP and as a result he had some AMP shares solely in his name that were transferred to me after he died.”

14. Initially in Queensland, the worker was self-employed. He built two new houses and a small commercial property which were sold for profit. Between 1982 and 1984, he worked for Andrew Flemming building and renovating commercial buildings. In 1984, he obtained further employment with Jenning’s Constructions as an employed builder and on-site foreman. Jenning’s Constructions in Queensland was a much larger builder than Andrew Flemming. The worker’s duties were mainly in the construction of new residential high-rise buildings and the renovation of some existing commercial and industrial buildings. He did this work until 1989. In that year he joined the service of Logan City Council as a Building Inspector and went on to become the Infrastructure Superintendent which position he held up to his retirement. According to the worker’s affidavit that occurred in 2002 but the plaintiff says in her affidavit that he retired in 2003. Since the worker turned 65 years old on 8 July 2003, when he was employed in local government, it seems more likely that he retired in 2003.

15. Whilst the worker’s career path is well set out in his affidavit, the plaintiff’s is not. I have already described what the plaintiff did before marrying the worker: vide [10] supra. Her affidavit contains this information:

“10. After Jordan was born, I worked in part-time or casual jobs only, as I was Jordan’s full-time carer. In other words, my employment was dependent on my availability given that I was raising Jordan, as well as Scott.

11. From the time that Jordan was born I was reliant on my husband for support. Bob worked in construction and worked a lot of overtime. I had no income other than my earnings from casual or part-time work.

12 In 1980 [after the move to Queensland] I worked part-time four days a week in credit control for Ingham Chickens for a few years…

13. My last years of work were with John Paul College which was a non-denominational Christian College in Brisbane. I worked three days a week there for about the last nine years of my working life until I retired.

…

16. I retired in about 2003 not long before Bob retired as a building inspector with Logan City Council.”

16. The plaintiff described her husband as “the main bread winner” who “always looked after the boys and myself”. [15] of her affidavit is this:

“Bob’s earnings paid for everything around the home, including the rates, telephone, car, holidays, food, clothes, house maintenance, health insurance.”

Post Retirement

17. At some time that the evidence does not identify, the couple bought a property in Alexandra Headland, between Maroochydore (north) and Mooloolaba (south). This was renovated by the worker. They resided there for about seven years until they sold it, in order to move into a retirement village. The plaintiff deposed in her affidavit to the couple’s making “a very good profit on the sale of the Alexandra Head house”. As well as using funds from the sale to finance their move into the retirement village, these funds financed:

(a) a trip to Europe; (b) a number of “other cruises”; and (c) on financial advice, a substantial superannuation fund for the plaintiff, as the worker was now “too old” to acquire a new superannuation fund.

The plaintiff went on to say this about her superannuation fund:

“23. I rolled my superannuation into an investment with Colonial Life while Bob was alive and like Bob received about $1,000 a month from this which I continue to receive.”

18. The retirement village into which the couple bought was a leasehold interest in their joint names. The name of the village is “The Palms” in Power Road, Buderim. Construction of the Village commenced in 2008 and has been fully completed. It comprises:

19. 4 one bedroom units for independent living.

20. 150 two bedroom units.

21. 35 three bedroom units.

22. Activities or games room.

23. BBQ areas outdoors.

24. Billiards room.

25. Indoor bowling green.

26. Community centre.

27. Gardens.

28. Library.

29. Swimming pool.

30. Spa.

31. Storage area for boats/caravans.

32. Village bus or transport.

33. Bar.

34. Workshop.

The couple purchased a two bedroom unit or “villa”. The sale price currently of two bedroom units is between $425,000 and $848,000 (see Exhibit 13 paragraph 9.1). There is an exit fee when an “owner” permanently leaves the village. There are 3 different exit fees. That applicable to the plaintiff is known as Option A, which is this:

“Option A:

Exit fee is charged at 5% each year for seven (7) years of the Ingoing Contribution advanced by you for each year you reside in your unit (and in respect of any part year the Exit Fee will be calculated on a daily basis) provided that the Exit Fee will not exceed 35% of the Ingoing Contribution advanced by you.”

The plaintiff’s oral evidence informs me that her exit fee would be 35% considering the period of time she has, or almost has, resided in the village. This would have to be considered if she could no longer live independently, i.e. have to move to nursing home accommodation.

The worker’s general health

19. This could be a relevant issue in this case. I shall explain why a little later. Exhibit 11 is a “Patient Health Summary” made by the general practice which the worker last consulted in Sippy Downs, Queensland, which has the same postcode as Buderim. It contains the following “Inactive Past History” which I lay out in table form:

| Date | Diagnosis/Procedure | Body Part/Result | | 1948 | Adenotonsillectomy [removal of tonsils and adenoids] | | | 1950 | Poliomyelitis | | | 1950 | Appendicectomy | | | 1968 | Right facial fracture | | | 2009 | Colonoscopy | | | 2014 | Right supraspinatus tendinosis | | | 20/10/2014 | SCC [Squamous Cell Carcinoma] | Right face | | 4/11/2014 | Seborrhoeic dermatitis | | | 25/11/2014 | Intraepidermal carcinoma | Right hand | | 25/11/2014 | SCC excision | Right upper arm | | 25/11/2014 | SCC excision | Right hand | | 21/03/2017 | Gastroscopy | Normal | | 29/03/2017 | Colonoscopy | | | 13/02/2019 | SCC excision | Left forearm and IEC x 2 | | 02/12/2020 | SCC excision | Left ear | | 09/09/2021 | SCC excision | Left cheek | | 04/03/2022 | Echocardiogram | Dilated LV with LV dysfunction EF 35% dilated LA Normal right sided size and function mild/moderate | | 25/03/2022 | Stent, coronary artery | x2 DES mid LAD | | 25/03/2022 | Angiogram, coronary | 99% stenosis mid LAD-stent | | 07/02/2023 | SCC excision | Left wrist |

Under the heading “Active Past History” are the following which I lay out in table form:

| Date | Diagnosis/Procedure | | 1987 | Deafness, industrial | | 2009 | Cochlear implant | | 04/11/2014 | Solar Keratoses | | 09/09/2015 | Osteoarthritis of lumbar spine | | 27/04/2016 | Heart Block, second degree | | 30/05/2016 | Pacemaker insertion | | 16/06/2016 | Hypertension | | 08/06/2017 | Depression | | 29/04/2019 | Left osteoarthritis of shoulder | | 29/04/2019 | Left supraspinder tendon tear | | 21/05/2019 | Osteoarthritis of cervical spine | | 26/08/2021 | Right biceps tendon rupture | | 24/03/2022 | Non ST elevation myocardial infarction | | 24/03/2022 | Left ventricular systolic dysfunction | | 23/05/2022 | Right osteoarthritis of knee | | 17/06/2022 | Pachychoroid neovasculopathy | | 13/12/2022 | Mesothelioma |

20. There are also in evidence three medical reports, each made by a specialist. The first (Exhibit 10) is from Dr Andrew Pattison FRACP, a respiratory and sleep physician addressed to the worker’s general practitioner and dated 18 November 2022, bearing the unwelcome news of the diagnosis of mesothelioma. The others (Exhibit 12) are from Associate Professor Bryan Chan, Consultant Medical Oncologist the first dated 21 September 2023 addressed to the defendant, about the progress of the worker’s mesothelioma. The further report from the Associate Professor on the same subject is dated 13 December 2023.

21. The lump sum awarded to the plaintiff was calculated according to the life expectancy tables i.e. for how long would the worker have lived had he not contracted pleural mesothelioma and died as a result of that condition. This raises the question: what was the worker’s general state of health – could he have lived longer than the life expectancy tables suggest? The plaintiff adduced no evidence on this point, nor did the defendant, other than tendering exhibits 10, 11 and 12. They left this issue to the Court’s determination.

22. Looking at the “Inactive Past History”, the first matter which is serious is the reference in 1950 to poliomyelitis but there is no suggestion that if the worker contracted that condition, that it was not successfully treated. The result of the colonoscopy of 2009 is not indicated, but the colonoscopy of 29 March 2017 was normal, so I must assume the earlier one was also normal. It is clear that the worker had a number of skin cancers over the years, probably normal for a man of European heritage who worked outdoors and, after 1980, in sunny Queensland. Right supraspinatus tendinosis (2014) may indicate some degenerative condition of the right shoulder partly related to his work as a builder, but that would not reduce life expectancy. The conditions recorded between 4 March 2022 and 25 March 2022 are cardiac conditions mirrored in the ”Active Past History” list after 24 March 2022.

23. Turning to the “Active Past History” list, I make these observations:

(a) Industrial deafness or any deafness requiring a cochlear implant, unless extremely severe, does not normally affect life expectancy; (b) Solar Keroteses are another form of skin cancer just like squamous cell carcinomata and are not usually life threatening – aliter of melonomata; (c) “Orthopaedic” problems do not usually affect life expectancy: the human skeleton reaches maturity in the late 20s of a person’s life, and then starts to degenerate: this accounts for osteoarthritis of the lumbar spine, and of the left shoulder (with consequential tendon damage, and with cervical spine and the knees; the rupture of the right biceps tendon could have been part of this degenerative process; (d) Pachychoroid neovasculopathy is a condition unknown to me but appears to relate to an ocular problem; (e) The concerning conditions are, as in the earlier list, references to a cardiac condition: in addition to coronary artery stents, the worker had a pacemaker inserted on 30 May 2016 and then a myocardial infarction in March 2022.

24. Dr Pattison’s report (see [20] supra) contains this:

“Bob reports being admitted to Sunshine Coast University Hospital in March [2022] with myocardial infarction. He underwent a coronary angiogram and had two drug-eluding stents placed in his LAD. He did have significant LV dysfunction at that stage, although it has mostly recovered on his second [echocardiogram] with an EF of 49%. Despite this, he has had ongoing fatigue and in fact worsening breathlessness since that admission. He had also developed some intermittent right anterior chest pain. He has had 3kg of intentional weight loss. Despite all of this he continues to play golf regularly but uses a cart.”

In the following paragraph, Dr Pattison points out that because of these ongoing symptoms, further investigations were performed which lead to the diagnosis of pleural mesothelioma. There is no suggestion offered by Dr Pattinson that the lung condition contributed to the myocardial infarction.

25. In her affidavit, the plaintiff said this about her late husband’s health and exercise:

“27. Bob prior to his diagnosis of mesothelioma was in very good health. He played golf at least two or three times a week, was always fixing or doing things around the home or our retirement village. We enjoyed a very happy active retirement and married life until he became ill with mesothelioma.

…

31. I greatly miss Bob, and my life will never be the same again. He used to provide me great assistance around the home with domestic duties including cleaning, vacuuming, washing up after meals. He used to love fixing anything that would break in our home and retirement village. After he died the village committee and residents put up a commemorative plaque that says “Bob the Builder” in the club house near the seats and piano stage he built.”

I have no doubt that the worker sought to remain active and did act as the plaintiff said he did: that is attested to by Dr Pattison’s comments about his continuing to play golf. However, in light of the worker’s cardiac condition I could not find that he had other than a normal life expectancy.

The plaintiff’s health

26. The plaintiff said this about her health, in her affidavit:

“32. I was in very good health until about September 2023.

33. In September 2023 I ended up in hospital on the Sunshine Coast for 4 weeks before being transferred to a Brisbane hospital for about another 7 weeks, where I was diagnosed with Guillain-Barre syndrome by a specialist there.

34. At that stage I was looking after Bob. I remember having pain in my hands, arms and legs. That caused me to go to hospital and I effectively lost use of my hands fro a few weeks. Bob by this stage was himself in advanced stages of terminal illness with mesothelioma.

35. Not long after being discharged from the Brisbane Hospital I returned home to be with my husband and care for him until he passed away on 29 January 2024.

36. Since then I have been told that the diagnosis I was given in Brisbane by the specialist is not correct and I have an autoimmune disease that was causing the problems with my hands and feet which is known as Chronic Inflammatory Demyelinating Polyradiculoneuropathy (CIDP). I also was diagnosed with two types of severe arthritis, particularly in my joints. I have been told recently that I will need a fusion of my left ankle.

37. I am currently being treated by a neurologist Dr Andrew Clark on the Sunshine Coast and a Rheumatologist Dr Dave Nichols at Maroochydore. My GP is Dr Oliver Gunson on the Sunshine Coast.

38. I saw an orthopaedic surgeon Dr Jonathan Dick about my left ankle and he wanted to do the fusion but he could not do it because I am not allowed to come off the medication I was on for my CIDP and arthritis including the prednisone. This situation may alter if my treatment and medication changes.

39. At different times I had to use either a walking stick or a frame, but my condition has stabilised, and I have managed to get back my driver’s license.

…..

40. I am still living in the retirement home that my late husband Bob and I purchased here on the Sunshine Coast.

41. I have never felt the same since I became ill in late 2023 and Bob’s death, especially after my falls that caused a brain bleed whilst in hospital.

42. Every three weeks I have infusions of Gamunex as an outpatient of the Sunshine Coast University Hospital and I am about to commence additional infusions of Rituximab (which is known to have positive side effects for neurological patients).

43. It was only with the help of my occupational therapist I was able to get my driver’s license back, after Bob died, in February 2024, but I still feel frail.

44. I get a Government Home Care package 3 which subsidises me for the cost of a rehab neuropathy therapist, an occupational therapist, physiotherapist and a cleaner for 1 and half hours per fortnight, together with gardening, a falls alarm etc.

45. I still try and keep doing things but it is difficult, for example using a saucepan or jug in the kitchen. Everything I do is done at a much slower pace. I’ve lost a lot of my fine motor skills.”

27. The plaintiff also gave some oral evidence about her health:

“Q. In talking with you today, I found out or realised you have quite severe arthritis in your hands.

A. Yes.

Q. How long have you had that for?

A. Quite some years.

Q. Was that something you had while your husband was alive before that?

A. Yes.

Q. We're going back 20 years or so.

A. More.

Q. It affects the way you can use your hands and what you can do with them.

A. Yes.

Q. You also told me this morning that after you were in the retirement home, that is after you retired, you've had a series of melanomas removed from you. Is that right?

A. Yes.

Q. That was while your late husband was fully capable of looking after you and so on?

A. Yes.

Q. Did he do that while that was happening?

A. Yes.

Q. That took several days to recover and so on from each of those procedures? Is that correct?

A. Indeed, yes.

……

Q. The retirement home is for two people, right?

A. Yes.

Q. Up until now, you've been living there on your own?

A. Yes.

Q. If you need now to have further assistance, you'll have to move out of there, is that right? If you need to get care?

A. Yes.

Q. To do that, you'd have to sell the home and hopefully find some place to go to?

A. Yes.”

28. No medical evidence on this issue was adduced by either party. I can ascertain from the life expectancy tables the plaintiff’s median life expectancy (9.97 years) but is that realistic? I know nothing about CIDP, a condition of which I had not heard, until the hearing of this case. Matters of this nature were formerly within the jurisdiction of the Compensation Court of NSW and, when that Court was abolished, became part of the Compensation Jurisdiction of this Court (District Court Act 1973, Part 3 Division 8A). Judges of the Compensation Court were permitted to use some medical knowledge gleaned from their judicial work to deal with some issues, as I have when discussing the worker’s health. I just do not know whether CIDP should be seen as reducing the plaintiff’s life expectancy. Furthermore, with a history of melanomata, a medical report telling me that her skin is currently clear of melanoma and has been so for a number of years would be helpful.

29. Of greater concern to me, is whether the plaintiff will be able to stay in her current residence indefinitely, i.e. to care for herself in her own home. Considering what she said about CIDP and about the osteo-arthritis in her hands, will she be able for, essentially, the next decade, to cook and cater for herself, be able to continue to drive, matters directly arising from her own evidence. In my view, medical evidence would be of great assistance.

30. At [18] supra, I sought to describe the retirement village where the plaintiff now lives, from a publication issued by the village. The plaintiff gave some evidence about her residence in cross-examination. At T11.47 she said they paid “three hundred and something thousand” dollars for their two bedroom unit. She did not know its current value (T12.10). There were “five or six different types of villa” (T13.10). She conceded that her exit fee would be the maximum i.e. 35% of the value of the villa (T13.31 to T13.35). There is no evidence of the current value of the plaintiff’s villa and, therefore, no estimate of how much she might receive if she were to sell her villa. There is no evidence as to the cost of providing the plaintiff with alternative accommodation e.g. nursing home accommodation suitable for her. Had the plaintiff’s husband, the deceased worker, not succumbed to mesothelioma he probably would have been able to assist the plaintiff to stay longer in her current accommodation, but there is no evidence that would allow me to value that support which has been lost. In addition, there is no evidence, for example, of how much travelling the plaintiff does either per week, per month or per annum that would enable me to value the travel that the deceased worker could have provided to her if she lost her driver’s license, nor any medical evidence which might allow me to determine whether she might keep her driver’s license during the term of her life expectancy.

31. I can ascertain from the life expectancy tables that, if the deceased worker had not succumbed to mesothelioma he would now be 87 years old and his median life expectancy, if otherwise in normal range, would be 5.66 years, so that he could have provided support to the plaintiff to date and for a further 5.66 years (altogether 7.26 years) but measuring the extent to which the plaintiff would have relied upon the deceased for support during that period is the difficulty I meet, because of the paucity of the evidence.

Financial Evidence

32. I pointed out in [14] supra, that both the plaintiff and the deceased worker retired in 2003. The worker’s mesothelioma was diagnosed on 13 December 2022 (see [19] supra) almost 20 years after the couple had retired from the work force. The defendant made an award for the worker on 21 February 2023 (see [3] supra) and he died on 29 January 2024 (ibid.)

33. There is no evidence as to the respective incomes of the plaintiff and her husband prior to their retirement. An inference can be drawn from the industrial history of each that the income of the deceased worker would have been much greater than that of the plaintiff. In cross-examination the plaintiff admitted that she had returned to the workforce by at least 1980 and had worked on in some form until 2003. Her evidence then continued:

“Q. Over that period of time, what were your earnings going towards?

A. We shared everything. Everything we owned, bar one national credit card, which accidentally got put in Bob's name only, was just RA and DJ Argyles.

Q. When you say at paragraph 15, Bob's earnings paid for everything around the home, really your earnings were also paying for everything around the home, weren't they?

A. Well, to a lesser degree.

Q. Really, the combined earnings from yourself and Bob were paying for everyone. It was all going into a joint account. That's right, isn't it?

A. Yes, but his was higher than mine. So, obviously, it covered more bills than mine did.

Q. Yes, but your earnings were contributing to the state of finances of the couple.

A. Yes.”

This is only a peripheral issue. In Workers Compensation (Dust Diseases) Authority v Cunha [2017] NSWCA 111 (a quite similar case) Leeming JA (with whom Meagher and Simpson JJA agreed) said this:

“43 The fact that it was common ground that Ms Cunha was dependent upon her husband meant that the only issue for determination by the primary judge was whether, immediately before his death, she was wholly dependent upon him, or only partially dependent upon him. The position more than a decade earlier, before either of them was receiving the age pension, is potentially relevant to the determination of that issue, although it is difficult to see how it would be more than peripheral. The critical issue of the extent of Ms Cunha’s dependency is to be determined at the relevant time 12 years later, when the income of Ms Cunha and her husband was different and had long been different.” (my emphasis)

34. Immediately prior to the defendant’s making an award in favour of the worker (21 February 2023), the income of the couple appears to have been this:

| Form of Income | Mr Argles | Mrs Argles | | Superannuation | $1,140.78 per month (Challenger Life) | $556 per month (Colonial First) | | Age Pension | $773.80 per fortnight | $773.80 per fortnight | | Total* | $672.10 per week | $525.90 per week |

Immediately prior to the worker’s death (29 January 2024) based on income records at December 2023, the couple’s income appears to be this:

| Form of Income | Mr Argles | Mrs Argles | | Superannuation | n/a | $1,026.67 per month | | Aged Pension | $524.04 fortnight | $524.04 per fortnight | | Carer Allowance | n/a | $144.80 per fortnight | | DDA Award | $1,274.50 per fortnight | n/a | | Total* | $899.27 per week | $591.09 per week† |

*The couple were receiving, probably, some small dividends on AMP, Telstra and Suncorp shares but the extent of them, and how they were allocated cannot be ascertained from the financial records in evidence.

†Mr Argles brought proceedings in the Dust Diseases Tribunal seeking damages from Amaca Pty Ltd alleging that it was responsible for supplying asbestos-laden building products which had exposed him to the substances which caused his mesothelioma. On 13 November 2023 he obtained a consent judgment for $545,000 (see Exhibit C). That sum was inclusive of costs and of any moneys refundable to the Commonwealth. As a result of that, $504,250.00 was deposited in the plaintiff’s Incentive Saver Account with the St George Bank on 20 December 2023 (see Exhibit 7). Counsel for the defendant in MFI 5 submitted that this returned to the plaintiff $2,173.98 per month / $1,908.70 per annum according to Exhibit 7 / Exhibit 4. In his written submission MFI 4 at [42] he had relied on the first one of those two sums and therefore on Exhibit 7. That exhibit opens with the deposit of $504,250 on 20 December 2023 and 2 further deposits of $5,500 in total in that month and then on 30 December 2023:

“Credit Interest $309.00

Bonus Interest $526.14”

In the month of January 2024 there were two additional deposits totalling $4,000 and at the end of the month:

“Credit Interest $804.37

Bonus Interest $1,369.61”

As that interest is for a full month, that better shows the interest actually being earned but, of course, there had been further deposits of $9,500 in total which would have earned a little bit of the interest. However, one could easily allow for the total interest of $2,173.98 in that month $2,000 being earned by the initial deposit on 20 December 2023. The reference to Exhibit 4 is incorrect. Exhibit 4 is an Income Statement for 29 October 2023 issued by Centrelink which shows annual interest of $1,908.70 being earned annually by Mrs Argles, as at 20 September 2023, before the settlement had been reached in the Dust Diseases Tribunal. The plaintiff’s income at the time of her late husband’s death could be seen as $591.09 plus $500 ex the DDT settlement plus ($1,908.70 divided by 52) $36.71 which is $1,127.98. That sum is to be compared with the $1,134.59 computed by Mr Birch, for the Defendant.

35. Considering the nature of the deposit of $504,250 and the time of the deposit (20 December 2023 compared to Mr Argles’ death on 29 January 2024) I would categorise this lump sum as a donatio mortis causa, a form of estate planning. Considering Mr Argles’ age at the time he developed symptoms of mesothelioma and the fact that he had been out of the work force for about 19 years, the vast majority of the damages he recovered would have been general damages: pain and suffering, loss of amenity of life and loss of expectation of life. He was terminally ill. The damages were only available to him for about 5 or 6 weeks before his death. It was understandable that a loving husband would do what he did: give his damages to his wife to ensure that she would be financially comfortable for the remainder of her life. In my view it would be erroneous, factually if not legally, to take this payment into account in determining the issue as to whether the plaintiff was dependent to any extent upon the deceased immediately before his death. Having said that I must take into account that even before the deceased obtained his award of damages, his wife had income of $526.90 per week compared to the deceased’s $672.10 per week. Those figures alone preclude a finding of total dependency as has been submitted on behalf of the defendant.

36. I am also acutely aware that the superannuation income enjoyed by the plaintiff came from the sale of the property that the couple had owned at Alexandra Headland (see [17] supra] and may have largely been the fruit of the deceased’s work, but, once that superannuation fund was established, it became the plaintiff’s property and still operates in her favour even after her husband’s death.

37. The award of the defendant, the subject of these proceedings, is Exhibit 1. Clause 5(b) of the findings is this:

“The dependent is entitled to an award of:

…..

(b) a fortnightly payment of compensation at the following rates:

$665.60 commencing on and from 30th January 2024”

That payment is pursuant to section 8(2B)(b)(ii) of the Act. That amount is indexed. From 1 April 2024 it increased to $685.60 per fortnight. Under the Workers Compensation Act 1926, if death resulted from an injury, the total dependents of the deceased were entitled to a share in a lump sum and, in addition, weekly payments for totally dependent children. If the deceased had any partial dependents the appropriate compensation could be agreed or determined but could not exceed the amount(s) payable to those who were totally dependent. The Workers Compensation Act 1987 continues that scheme. In those schemes there is no weekly or fortnightly payment for a totally or partially dependent spouse. The scheme of the present Act is different. Considering the verbiage of s8(2B)(d), which relates to those partially dependent for support on a deceased worker, identifying the payment as being under s8(2B)(b)(ii) contains no admission that the plaintiff was totally dependent upon the deceased worker.

Quantifying the extent of partial dependency

38. In written submissions (MFI 3), the plaintiff argued that she was totally dependent upon the deceased worker but, in light of the decision of the Court of Appeal in Cunha, I do not accept that such a finding can be made. The plaintiff accepted, in the alternative, that a finding of partial dependency could be made but made no submission as to how that should be calculated, merely stating in MFI 3 this:

“21. If contrary to the above [total dependency], the Plaintiff was found to be a partial dependent of the Deceased, then it is submitted that her entitlement under the legislation would approach the maximum amount.”

In his oral submissions, Mr Sharpe, for the plaintiff, made no submission as to how the plaintiff’s entitlement should be calculated. He referred me to authorities such as Maas v Department of Education (1980) 54 WCR 167; Fraser v Totalisation Agency Board (unreported, Comp Ct, 5173 of 1986, Moroney CCJ) which relies on Maas; Aafjes v Kearney (1976) 180 CLR 199; Leot**ta v Public Transport Commission of NSW (1976) 50 ALJR 666, 9 ALR 437. I am acutely aware that dependency is not limited to financial dependency and that in determining its extent that future probabilities are to be taken into account. However, there must be evidence which allows me to gauge the extent of the dependency, evidence which allows me in some fashion to compute non-financial dependency and future probabilities.

39. On the other hand, the defendant’s submissions on this issue are lengthy:

“53. If Mrs Argles is not found to be “wholly dependent”, Mrs Argles nevertheless challenges the award which was made to her. The Authority contends that the award which was made to her was “reasonable and proportionate to the injury” in that it was entirely consistent with the wording and purpose of s 8(2B)(d) of the 1942 Act. The appeal should therefore be dismissed.

F.1 Applicable legal principles

54. The relevant question is the proper construction of the statutory test in s 8(2B)(d) that the award should be “reasonable and proportionate to the injury” to Mrs Argles.

55. The substance of s 8(2B) in its present form was inserted into the Act by the Workers Compensation (Dust Diseases) Amendment Act 1967 (NSW) (1967 Amendment Act). The 1967 Amendment Act changed the compensation payable to a dependent on the death of a worker from a dust disease by inserting s 8(2B)(a)-(d), thereby amending the section to replace a single lump sum payment with a smaller lump sum with weekly payments until the death or remarriage of the spouse. This provision has remained in substance the same since the 1967 amendment, save for a more detailed explanation provided by later amendments of the description of the lump in s 8(2B)(b)(i) and clearer definition in s 8(2B)(b)(ii) and (iii) of the weekly payments for a spouse and for dependent children.

56. In particular, by the insertion of s 8(2B)(d), the 1967 Amending Act gave the Authority a discretionary power to determine an amount reasonable and proportionate to the injury to the person who was partially dependent on the worker for support.

57. The Explanatory Note to the Bill which became the 1967 Act stated as an object of the Bill:

to prescribe, in place of the lump sum compensation now payable under the Act to a worker’s widow in respect of his death, a smaller lump sum together with weekly compensation payable until her death or remarriage, and to provide for the payment of such weekly compensation to widows who obtained awards before the commencement of the amending legislation as well as those who obtain awards in future...

58. The Second Reading Speech to the Bill included the following:

The lump-sum payment to be made is designed to meet the immediate expenses of the widow in connection with funeral arrangements, hire-purchase commitments, securing or retaining accommodation, sundry debts, and similar expenses: NSW Legislative Assembly, Parliamentary Debates (Hansard), 14 March 1967 at 4109.

59. In Dionisatos (for the Estate of the late George Dionysatos*) v* Acrow Farmwork and Scaffolding Pty Ltd (2015) 91 NSWLR 34; [2015] NSWCA 281 at [168]-[169], Gleeson JA (Macfarlan JA agreeing) extracted these passages of the Explanatory Note and the Second Reading Speech. His Honour then held at [212]:

… the awards under s 8(2B)(b) and (d) are not made by reference to any particular expenses which would be incurred by the worker in maintaining or providing for the dependant. Nor are the awards under s 8(2B)(b) and (d) commensurate with the “value” of the loss of support. An award is a defined benefit (or a proportion thereof) given by the Board upon demonstration that the dependant satisfies the criterion of having been either wholly or partially dependent for support on the worker. Consistently with this, the second reading speech for the 1967 Amendment Bill (set out at [169] above) explained that the lump sum payment was designed to meet immediate expenses in connection with funeral arrangements, financial commitments, securing or retaining accommodation, sundry debts and similar expenses. Similarly, the weekly pension may be taken to provide for ongoing financial assistance until the dependent widow dies or remarries.

60. Similarly, Basten JA observed at [27]-[28] in respect of an award under s 8(2B)(d):

The critical feature of the entitlement of a dependant is that it is to be a portion of a rate of compensation prescribed by par (b) of the same subsection. It is not an amount which bears any defined relationship to the loss arising from the dust-related condition or death. Further, the prescribed amount has no particular relationship to the value of gratuitous domestic services, which will, inevitably, vary from case to case.

In other words, although the need for gratuitous domestic services may form the basis of an entitlement based on dependency, and in that respect the payment by the board is “in respect of” that element of dependency, the absence of any relationship between the amount of the payment and the particular dependency demonstrates the inappropriateness of treating the payment as a form of “damages”.

61. That is, in respect of the assessment of what is an award that is to be “reasonable and proportionate to the injury” to Mrs Argles, the Court should proceed on the basis that:

(a) a decision to award a weekly pension is the principal mechanism by which the Authority should provide for ongoing financial assistance until the dependent widow dies;

(b) the lump sum award is not to be commensurate with the loss of the value of support from Mrs Argles. There is no prescribed relationship between the amount of the payment and the degree to which Mrs Argles was dependent on Mr Argles;

(c) rather, the lump sum payment is designed to meet immediate expenses in connection with funeral arrangements, financial commitments, securing or retaining accommodation, sundry debts and similar expenses.

62. Importantly, the Court of Appeal’s approach to s 8(2B)(d) above is inconsistent with the application of the approach in Cunha v Workers Compensation (Dust Diseases) Authority [2016] NSWDC 227 at [57]-[69], in which the primary judge conducted an alternative analysis, seeking to ascertain an amount which was “reasonable and proportionate to the injury” mathematically by assessing the value of the dependency (both financial and non-financial). Ms Cunha sought to crossappeal but her cross-appeal was dismissed on the basis that there had been no partial dependency award and therefore it was outside the Court of Appeal’s jurisdiction to determine: Cunha at [59].

63. The primary judge in Cunha sought to rely on the approach in Warilla Timber and Hardware Pty Ltd v Newton (1995) 11 NSWCCR 546, a case which concerned compensation under the Workers' Compensation Act 1987 (NSW). Significantly, the legislation in Warilla Timber contemplated only a payment of a lump sum, rather than a payment of both a lump sum and a series of weekly payments until death or remarriage. That difference in structure is significant, as the latter strongly suggests that the weekly payments are to be the primary mechanism for providing ongoing financial assistance, as Gleeson JA recognised in Dionisatos above. In any event, Warrilla Timber does not support the detailed mathematical approach taken by the primary judge in Cunha.

F.2 Application to the present case

64. The Court should find that the Authority’s award of a lump sum of $48,414 and a fortnightly payment of compensation, initially at $665.60, was an award which was within the Authority’s statutory discretion to make an award which is “reasonable and proportionate to the injury” to Mrs Argles.

65. It should be noted in this regard that, as the moving party, the plaintiff bears the onus in establishing an alternative “reasonable and proportionate to the injury” for the purposes of s 8(2B)(d). The plaintiff has not sought to establish any particular alternative amount, nor set out a methodology to enable the Court or the defendant to understand what the plaintiff is seeking.

66. The Authority’s position is that, as noted above, the principal mechanism contemplated under s 8(2B)(d) by which the Authority should provide for ongoing financial assistance until the dependent widow dies is the award of weekly payments. The Authority awarded the maximum weekly payments available under s 8(2B)(d). Mrs Argles understandably does not criticise this. Nevertheless, in respect of the integer of compensation which is intended to provide Mrs Argles with ongoing financial assistance until she dies or remarries, Mrs Argles received the maximum possible award from the Authority.

67. The dispute in the present case is the lump sum payment. As noted above, the Authority’s capacity to make a lump sum payment under s 8(2B)(d) was intended to meet any immediate expenses on the part of Mrs Argles following the death of Mr Argles. There is no evidence of Mrs Argles having a need for reimbursement of any such expenses, so as to require a larger lump sum than $48,414. By way of example, the Authority paid to Mrs Argles a separate funeral benefit of $10,000, in accordance with s 8(2A) of the Act. Similarly, Mrs Argles does not require further funds to secure accommodation, as she and Mr Argles appear to have purchased their leasehold interest in their retirement village as joint tenants and therefore the interest passed to her outright upon his death.

68. In the alternative, if the Court were to apply the approach in Warilla Timber and Hardware Pty Ltd v Newton (1995) 11 NSWCCR 546 (which is wrong for the reasons set out above), the Authority calculates that the total lump sum amount which would be awarded to Mrs Argles is nil. The reasoning for this is as follows.

69. It appears that the first step on this approach is to determine the financial extent of the dependency of Mrs Argles upon Mr Argles (contrary to Dionosatos at [212] and [27]-[28] above). As noted above, Mr Argles’ income at the time of his death was $899.27 per week (his $262.02 aged pension + $637.25 payments from the Authority). In addition, Mrs Argles has lost her own carer allowance of $72.40 per week, leading to a total financial loss of $971.67 per week.

70. However, that must be offset against the increased income which Mrs Argles will subsequently receive as a result of the fact that she now receives indexed weekly payments from the Authority, initially at $327.80 per week. It should also be offset against the investment income which Mrs Argles will now receive on the assets which are now wholly within her name (at least $543.50 per week). That leads to a net financial dependency of $100.37 per week.

71. There would need to be a further allowance to reflect the fact that Mr and Mrs Argles were previously incurring expenses as a couple, and now Mrs Argles will only have to meet her individual living expenses. While it can be accepted that a couple can live more cheaply than two individuals, a significant discount should be applied to the couples’ combined expenses of approximately $750 per week to reflect this. Assuming a discount of 25% (which appears to be generous in Mrs Argles’ favour), there should be a reduction in expenses of $187.50 per week which should be taken into account as an offsetting amount.

72. Once that exercise is conducted, it is apparent that Mrs Argles’ future income is sufficient to meet her anticipated expenses from a financial perspective. Even if some further small amount is allowed to represent the loss of Mr Argles’ nonfinancial support, it would need to be assessed at $87.13 per week for there to even be a positive weekly dependency amount.

73. That weekly dependency amount would need to be multiplied by the remaining life expectancy of Mr Argles, with an application of a 5% discount rate. Assuming (which has not been shown to be the case) that Mr Argles had an average remaining life expectancy (but for the mesothelioma) of 6.51 years, the multiplier to be applied is 291.249.

74. By way of comparison, the amount which the Authority awarded of $48,414 represents an amount of $166 per week over 6.5 years at 5%.”

40. With the assistance of my Associate, I managed to understand the reasoning / mathematics applied by Mr Birch in paragraphs 69 and 73 of those submissions. The only figure I do not accept is the amount of the interest he allowed for the donatio mortis causa. He allowed $543.50 per week but I only allowed $536.71 (see [34] †supra). That changes the figure in paragraph 72 of the submissions to $50.42.

41. To award a lump sum greater than that allowed by the defendant, I would be required to value the deceased’s non-financial support at more than $216 per week (i.e. $50.42 + $166) although the approach to life expectancy I have taken differs to that of Mr Birch. This assumes that the deceased, but for mesothelioma had a normal life expectancy (a presumption I am prepared to make) and that the plaintiff has a normal life expectancy (a presumption that I can not make) and that nothing would change during their continuing lives together (but for mesothelioma), another assumption I can not make.

Consideration

42. As I pointed out in [1] supra, the plaintiff must prove her case on the balance of probabilities. As I pointed out in [38] supra, the plaintiff made no submissions as to how her partial dependency should be calculated, a point made by Mr Birch, for the defendant, in paragraph 65 of his submissions, quoted in [39] supra. I need not summarise the evidentiary deficiencies I have earlier identified. Reluctantly, I conclude that the plaintiff has failed to discharge the onus of proof which she bears. I say “reluctantly” because if the appropriate evidence were led, the result might have been otherwise. If the appropriate evidence were gathered, I would be prepared to exercise the Court’s power under District Court Act 1973 section 142J(2).

Order

43. Appeal is dismissed.

Costs

44. In his written submissions, Mr Birch asked to be heard on the question of costs. I must draw his attention, however, to District Court Act 1973 section 142K, and Workplace Injury Management and Workers Compensation Act 1998 section 122(3). If the defendant seeks costs, it must file a Notice of Motion and supporting affidavit(s) to show how it may be entitled to such an order.

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