Cunha v Workers Compensation

l The minimum payment to a dependent spouse is to be 10% of the maximum award regardless of age or disability of the deceased worker. l Where a dependant spouse/partner provides total support (after the death of the worker) to a child or children under the age of 16 or under the age of 21 but still in full time education at a school, college or university, the benefit entitlement applied is to be the maximum lump sum applicable at the time of the death of the worker. Definition of Dependents a. A prescribed relative being: l Where the worker died before 1 December 1998: a surviving spouse of the person l Where the person dies on or after 1 December 1998; if there is no surviving spouse of the person - a father, mother, grandfather, grandmother, step-father, step-mother, grandson, granddaughter, brother, sister, half-brother or half-sister of the deceased worker. b. A surviving spouse and a child or children of the deceased worker Exclusions Surviving dependent children where there is no spouse are not covered by this policy. Awards of compensation are calculated in accordance with section 8(2AA) on a case by case basis."

1. The Act, like the principal Act and similar legislation, gives no discretion to the decision-maker if the appropriate finding be that the spouse was wholly dependent. If the spouse were wholly dependent upon the worker at the time of the worker's death, then the whole of either the lump sum, or the lump sum and the weekly payment, becomes payable, even though, for example, the life expectancy of the spouse might only be a further month or two. In the case of a partially dependent spouse, the prescribed rate of the compensation payable are such "payments" not exceeding those payable in respect of total dependency as may be determined by the decision-maker "to be reasonable and proportionate to the injury" to the dependant. I stress that the provision of s 8(2B)(d) refers to "payments", plural, rather than singular. The lump sum and the weekly payments can be adjusted by the decision maker so that what is paid to the partially dependent spouse is reasonable and proportionate to the injury to that spouse, i.e., the damage done to her or him financially by reason of the loss of support of the deceased worker. The scheme under the present Act is clearly different to that under the principal Act, where the question arises if the only surviving dependant is a partially dependent spouse, where the decision-maker must engage upon essentially an inquiry similar to that under the Compensation to Relatives Act, but limiting the sum payable to the maximum prescribed by the legislation for a totally dependent spouse. Under the regime under this Act the Court is required not only to consider the lump sum, but also the weekly payment.
2. For its own reason, the defendant paid the plaintiff the weekly payment as if she were totally dependent upon her late husband for support, but only thirty per cent of the lump sum payable to her if she were totally dependent upon him for support, but one can glean that the reason for the choosing of thirty per cent of the total lump sum was the fact that when the deceased died he was 79 years of age and the percentage is set out in the table set out in exhibit 2 which I have quoted above.
3. The first consideration is was the plaintiff totally or partially dependent upon the deceased for support at the time of the deceased's death? As often in cases of this nature, it is important to go back to some principles. Once upon a time the test for dependency rested upon the question whether the dependant was "dependent on the earnings" of the worker. That formulation has been changed to "dependent for support" upon the worker. The case is best illustrated by Fisher v Hebburn Ltd (1960) 105 CLR 188. At 197 Fullagar J said this: "The remaining question is whether the appellant is entitled, in addition to what is payable under s 9(1)(a), to a weekly payment under s 9(1)(e) in respect of his wife. He can only be so entitled if his wife was 'dependent on his earnings' at the date of the certificate of the Medical Board. At the time he was earning nothing, but he was, as has been said, in receipt of a pension. His wife may be said to have been dependent on his pension, but she cannot be said to have been dependent on non-existent earnings." The same point was made by Kitto and Menzies JJ at 206: "At all material times the appellant was a married man. Until he ceased work in April 1949, his wife was totally dependent upon his earnings. She has been totally dependent on him ever since, except insofar as she may have been in receipt of a pension of her own; but his means have been confined to a pension or pensions. At the date when his notional incapacity from pneumoconiosis is to be taken as having resulted, namely, 7 July 1955, he had no earnings, and his wife therefore could not be described as dependent on his earnings. Accordingly the award to which the appellant was entitled could not properly include any additional compensation under para (b) [of s 9(1) of the Workers Compensation Act 1926]." The pension there in question was a superannuation allowance for a coalminer. One can see that if the test of dependency upon earnings was replaced with dependency for support, former coalminer who was entitled to a benefit under the Act would have been entitled to have his allowance increased because he had a wife who was totally dependent upon him for support. The distinction must be clearly borne in mind.
4. At common law a man had a legal duty to provide support to his wife. This was considered by the House of Lords in New Monckton Collieries Ltd v Keeling (1911) AC 648; (2011) 4 BWCC 332. The widow in that case had obtained an award from a County Court judge that had been affirmed by the Court of Appeal. The House of Lords set aside the award. The Lord Chancellor, Lord Loreburn said this: "The question in this case is a question of fact whether a particular person is a dependent or not. The Act was passed to provide compensation for certain people who should be damnified because the workman ceased to earn wages. If thereby they were either deprived of actual support, or deprived of a source on which they did and would reasonably rely for it, they might be damnified to a degree greater or less according to the circumstances. The fact that a legal duty lay upon the workman to provide maintenance is an element to be considered, no doubt, because people usually count upon getting what they are entitled to get. But when, as here, the wife has not been supported for 20 years and in no sense relied upon the workman for any help, I think there was no evidence of dependency. In my opinion the appeal should be allowed." His Lordship agreed with the speech delivered by Lord Atkinson who said this: "It cannot in the nature of things be on the mere possession of a legal right, but rather on the effective enforcement of it in some shape or form, that a wife relies for her support. It is also, in my view, impossible to come to the conclusion that there was any reasonable probability that she would ever enforce her right against her husband, or look to the result for her subsistence to any extent." His Lordship went on at some length to point out that there was no doctrine of law or presumption of law that a wife was dependent upon her husband for support. However, subsequent authorities make it clear that a legal duty to support a dependant can be taken into account in assessing whether a person is dependent upon another, and that can also go to the quantum of the dependency.
5. A similar question arose in Potts v Niddrie and Benhar Coal Co Ltd (1913) AC 531. The facts are well set out in the headnote: "In March 1907, a workman deserted his wife and children. Up to 1909 he occasionally made small payments to his wife and two younger children, amounting in all to two pounds, which was applied towards the support of the family. The payments then ceased, and in September 1909, the wife obtained a decree against him for aliment [maintenance] of the two younger children, who were in pupillarity [minors] and recovered 17 shillings from his employers by arrestment [garnishee] used on the decree. The workman then disappeared to avoid further diligence [legal obligation] from his employer and was not traced until his death in April 1911, by accident arising out of and in the course of his employment. The wages due to him on his death were paid to his wife. From the date of his desertion the wife and family were supported entirely, except as above stated, from the earnings of the two elder children. These contributions were not made ex pietate [out of a sense of duty] and could have been recovered from the father under the decree for aliment. The widow claimed compensation under the Workmen's Compensation Act 1906, on behalf of her two pupil [minor] children: Held that there was evidence upon which the arbitrator could find that these children were wholly dependent on the earnings of their father." I trust that I have correctly rendered Scots' law terms into applicable common law terms. The Lord Chancellor, Viscount Haldane, said this: "I am of the opinion that the sheriff-substitute could properly hold that these children were wholly dependent. They had the right to look to their father for maintenance, and it is plain that those in whose care they did so look, and endeavoured as best they could to make the right effective. The children had no other means of support which could render their position one of partial dependence. It was only by assistance from their brothers, assistance which might have ceased at any moment, that they were saved from actual want. The father was under an obligation to maintain them which had already been enforced, and which might have been enforced again at any moment had he lived. Under these circumstances I think that the younger children could be held to be wholly dependent within the meaning of the Act of Parliament. The case is quite different from that of New Monckton Collieries Ltd v Keeling, recently decided by this House. There, there had been what was tantamount to an abandonment of the wife's right. She had left her husband more than 20 years before his death, and had virtually given up looking to him for support for herself and her children. Here, the wife had kept her right alive, and was apparently only waiting for the opportunity to enforce it. The obligation of the father remained in existence. It was a valuable asset, and she and the children had nothing else that was reliable to look to." In a similar vein, Lord Shaw of Dunfermline said this at 541: "With regard to the facts of a case of desertion or refusal or omission to support dependants, these facts may be within a wide range. 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. In the present case there was a resort to the law and a legal affirmation through the decree of dependency. Furthermore, there was evidence of a determination to vindicate the children's right to support. It was, as it were, proved that the wife was determined with regard to her children to shew her and their dependence upon him. There were circumstances of occasional support prior to the decree, and by reason of it, I cannot, all this being so, see my way to reverse the sheriff's finding pronounced in circumstances within the range of the extremes I have mentioned, and essentially upon a fact which a Court of law is not permitted to disturb."
6. I have quoted extensively from those two judgments because firstly they are often now difficult to find, and secondly because they inform much of the subsequent Australian case law which I shall cite tomorrow.

ADJOURNED PART HEARD TO THURSDAY 4 AUGUST 2016

1. HIS HONOUR: The first relevant Australian authority to which I have been referred is Kauri Timber Co (Tas.) Pty Ltd v Reeman (1973) 128 CLR 177. The relevant Tasmanian statute defined "dependants" to be those who were "dependent, wholly or in part, upon the earnings of [the] worker at the time of his death". The plaintiff claimed that she had been wholly dependent upon her husband who had died in compensable circumstances. At all material times the widow had a small income from property of her own, out of which she had purchased and maintained a motor vehicle. She did not use any part of her income for ordinary household expenses which were paid for by the deceased worker who otherwise supported her out of his weekly earnings.
2. The majority of the High Court, Barwick CJ, McTiernan and Gibbs JJ, dismissed the appeal from the decision of the Supreme Court of Tasmania (Burbury CJ). Menzies and Stephen JJ dissented. Barwick CJ said this (at 181): "In my opinion, it is a source of fallacy to characterise the maintenance of a motor car as the 'provision of transport' and then to treat the abstraction 'provision of transport' as an obligation of a husband to his wife. As the decisions show, the legal or moral obligations are not decisive of what is maintenance and support in any particular case. In this case the husband, though well able to do so financially, did not provide his wife with 'transport' in the form of a car. It could scarcely be said that therefore he did not wholly maintain and support her. There is no suggestion in the case that he did not provide a car because his wife undertook to do so, or in fact did so. The facts of the case rather suggest and the Chief Justice in substance found to the contrary. The use of a motor car was not, in my opinion, part of her maintenance and support. The car was obtained and used by the respondent upon her own initiative and for her own personal purposes. Her use was certainly not limited to the performance of household duties. Though I may not agree wholly with the use made by the Chief Justice of the prior decisions, so far from thinking he was wrong in his conclusion of fact, he was in my opinion right. I am also of the opinion that the respondent was wholly dependent for her maintenance and support upon the earnings of her husband."
3. McTiernan J referred to New Monckton Collieries Ltd v Keeling (supra) and held that Burbury CJ was correct in applying the dictum of Lord Shaw in that case to the case then before the High Court. His Honour quoted from the judgment of Burbury CJ: "It is not, in my view, inconsistent with the notion of total dependency that the plaintiff had some money of her own which she spent for her private purposes outside the ordinary family expenditure for maintenance and support of the wife in this case should not be taken to include the running expenses of the car. The cost of running the car should not, in my view of the evidence, be treated as an ingredient in the family expenditure for the purpose of measuring the extent to which she is dependent on her husband for her maintenance and support. I think her pecuniary loss is a loss commensurate with total dependency." McTiernan J went on to point out that the evidence did not justify a finding that a characteristic of the motor car was that it was an article of household use or that the expenditure on it was an item of the wife's maintenance which was being defrayed by herself. The facts of this case might be decided differently in modern times when nearly every married person works and most families have two cars, one used by the husband, the other by the wife in the normal course of family living. Stephen J in his dissent said this: "Because the court may look to the future….it may conclude that earnings would not have long continued had the worker survived, so that his wife's rate of earnings at the date of his death, not forming an enduring part of the pattern of their life together, may not, in all the circumstances, negate dependency…..but if this is not the case her earnings will operate to deny total dependency and, if sufficiently large, will deprive her of all dependency upon the worker. No different principle should apply if the wife's means are derived from income from property or a pension rather than from her earnings. Indeed the very factors that sometimes enable a court to disregard a wife's own earnings, their temporary character, are less likely to apply if a wife's income is derived, as in the present case, the from income earning assets of an enduring nature. The case, therefore, of a wife having an income from investments is, to my mind, even more clearly one in which total dependency cannot be found." The important point to note from his Honour's dictum is that he put the provision of a pension in the same category as income derived from settled property. However, it is unclear what his Honour meant by "a pension". That term has been used in the past to include such things as superannuation allowances under a contractual arrangement between a company which provided annuities and a subscriber.
4. The next decision of the High Court of Australia was decided very shortly thereafter. This was an appeal from McGrath J (as the former Chief Judge of the Compensation Court then was). The Court of Appeal by a majority had affirmed the award made by his Honour. The case is Aafjes v Kearney (1976) 180 CLR 199. The High Court affirmed the decision of the Court of Appeal, affirming the decision of McGrath J. The facts of the case can be gleaned from the headnote: "In 1973 a worker was killed in the course of his employment, leaving a child. The worker's marriage with the child's mother had been dissolved in 1965 and she had remarried in 1968. By the terms of the decree for dissolution of the marriage, the worker was required to pay $6 per week towards the child's maintenance. These payments were not made regularly and for a time during 1972 they were not made at all. Late in 1972 the worker agreed to pay $12 per week for the child's maintenance. The child lived with her mother in the matrimonial home established by the mother and her second husband. The stepfather contributed no money towards the upkeep, her mother supporting her out of the worker's maintenance payments. The mother also made some of the child's clothes. The stepfather provided accommodation for her in the matrimonial home. [McGrath J] determined that at the time of the worker's death the child was wholly dependant for support upon him."
5. Barwick CJ quoted extensively from Potts v Niddrie and Benhar Coal Co Ltd (supra) and went on to say this (at 204): "With due respect, I commend this view, one which I hold strongly myself, to those who are asked such a question as the question asked in the present case stated. If that view is followed, certainty and early finality in these matters will be advanced, whereas if it is not, unnecessary and avoidable subtlety and complexity will be further introduced into this area of the administration of the law to the great disadvantage of those for whose benefit this legislation was designed."
6. The oft-cited dictum in the case comes from the judgment of Gibbs J. Commencing at 207 his Honour said this: "In Kauri Timber Co. (Tas) Pty. Ltd v Reeman, I 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. 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. 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 [Lee v Munro (1928) 21 BWCC 401 at p 408]. 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 dependant 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. The conclusion that I have reached - that a daughter may be wholly dependent upon her father notwithstanding that she in fact receives support from other sources - is supported by authority, although it is true that the cases in which this was decided are distinguishable on their facts from the present case….It must follow that the facts that the respondent was at the date of her father's death provided with lodging by her stepfather and received some benefits from her mother were not necessarily inconsistent with a finding that she was wholly dependent on her father."
7. Mason J, with whom Gibbs J agreed, laid stress on the decision of the House of Lords in Potts v Niddrie and Benhar Coal Co Ltd (supra). His Honour also pointed out that the legal obligation of the father to provide support for his child or for his wife was not abandoned merely because the child or spouse was in receipt of benefits from others, whether proceeding from charity or from some other motive.
8. The next decision to which I have been referred is that of the Court of Appeal in McCafferty's Management Pty Ltd v Pimlott (1995) 12 NSWCCR 360. The principal judgment in that case was given by Meagher JA, with whom Priestley and Clarke JJA concurred. The facts are summarised in the head note thus: "At the time of the worker's death, both he and his wife were working. The deceased was earning $659 per week; his wife $448 per week. Their incomes were pooled from which pool the house mortgage and hire purchase commitments were paid. The trial judge [Maguire CCJ] found the wife partially dependent on the deceased and the couple's child, aged 14 years, totally dependent on her father. The wife had discussed with her husband her intention to retire when she turned 40 - three years after her husband's death." Meagher JA pointed out that Maguire CCJ relied on Aafjes v Kearney in order to support his finding that the daughter was totally dependent upon her father. At 364 Meagher JA said this: "As counsel for the respondent also pointed out, the factors indicating the correctness of his Honour's judgment are: (1) The legal obligation of the deceased 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 [Breust 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 breadwinner of the family', a statement which is still true of what is demanded by social convention, if not legal obligation'. (3) Looking at past events and further possibilities, the fact that Mrs Pimlott intended to retire from the workforce at the age of 40 emphasises the totality of the child's dependence on its father.'" This case establishes the principle, probably derived from modern family law, that a child is equally totally dependent upon each of the child's parents for support. This led learned Senior Counsel for the plaintiff, Mr Parker, to submit that in the present case the plaintiff and the deceased were mutually totally dependent upon each other, an interesting concept which in the current case is not necessary to decide and I do not need to decide whether the deceased had been dependent upon the plaintiff, a proposition which I have difficulty in accepting.
9. The final binding authority to which I was referred by Mr Parker SC was Coles Myer Ltd v Rudzinski [2006] NSWCA 161. The principal judgment was given by McColl JA, with whom Beazley and Tobias JJA agreed. The issue in that appeal was whether the worker was entitled to a weekly payment which included payments in respect of her two children. The test in the case of a living worker is not whether a spouse or child was totally dependent upon the worker for support, but whether the spouse or child was totally or mainly dependent for support upon the worker at the relevant time. McColl JA said this: "10 In the written submissions the appellant sought to identify this as an error of law because of the following statement of Armitage J in Spenceley v Deniliquin Shire Council [2001] NSWCC 110; (2001) 22 NSWCCR 7 at [15]: "15. It seems to me reasonable in those particular circumstances to say that the child Nykita has at all material times been mainly though not totally dependent upon the applicant, even though she is also dependent to a considerable degree upon her mother Natalie. The situation would have been different of course in circumstances where the wife's income exceeded to a much greater degree the income of the worker in weekly payments of compensation. It is not difficult to envisage circumstances where it could not be said in any meaningful sense that a child is totally or mainly dependent upon an injured worker where, for example, the injured worker's wife or husband were successful in regaining employment in a professional or trade capacity resulting in much more substantial earnings than those available to the wife in the present case." 11 In Spenceley, Armitage J (at [12]) applied two decisions of this Court, McCafferty's Management Pty Ltd v Pimlott (1995) 12 NSWCCR 360 and Holdlen Pty Ltd v Walsh [2000] NSWCA 87; (2000) 19 NSWCCR 629 to the effect 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 (Meagher JA, Pimlott at 364B) and that "total dependence is not incompatible with the receipt of support from someone else" (per Giles JA Holdlen at 642 [51]). These observations clearly apply with even greater force where, as here, the question was whether the children were "mainly dependent" upon the respondent. 12 In the present case the relevant terms of the legislation required the respondent to demonstrate that her children were either "totally or mainly" dependent upon her. Armitage J's remarks in Spenceley cannot be understood to amount to a proposition of law. If they were so intended, then they were, with respect, incorrect. The question whether a worker's children are "totally or mainly" dependent is a question of fact. In this case there was evidence from which that conclusion could be drawn."
10. The final authority to which I have been referred by Mr Parker SC which I need to cite at this time is the decision of Walker CCJ in Claydon v Jayton Pty Ltd t/as Stocktrans (1999) 18 NSWCCR 381. That judgment considered whether the circumstance that the applicant worker and his de facto spouse were receiving social security benefits prevented the de facto spouse from being totally or mainly dependent upon the worker. His Honour said this: "78 The respondent submits that because both the applicant and his partner are on Social Security benefits she cannot be totally or mainly dependent upon him within the meaning of s 37(4). 79 This is a popular submission but finds no favour that I can determine in the decided cases on the matter. In Fatovic v Standard Telephones & Cable Pty Ltd, NSWCC, No. 2892/89, 4 March 1991, unreported, his Honour Judge Burke dealt with a submission that an increment to an invalid pension to include a benefit for children had changed the dependency in respect of the children. 80 Judge Burke pointed out that there was a long line of authority to the effect that benevolence from relatives, friends or the State after injury to a worker does not derogate from dependency. He was referring of course to cases such as Aafjes v Kearney [1976] HCA 5; (1975) 180 CLR 199; TNT Group 4 Pty Ltd v Halioris (1987) 8 NSWLR 486 and McCafferty's Management Pty Ltd v Pimlott (1995) 12 NSWCCR 360. 81 Judge Burke held that in situations where a relative was dependent prior to injury there was a presumption of continuance with an evidentiary onus on the respondent to establish change. In the circumstances he found the onus had not been discharged. 82 His Honour Judge O'Meally in Warrender v Orange City Council, NSWCC, No. 3390/87, 29 September 1997, unreported, took the view that Social Security payments in themselves are not sufficient to alter a wife's status as a dependant. He took the same view in Bishop v Bucciarelli, NSWCC, No. 8711/82, 11 March 1998, unreported. 83 His Honour Judge Moran in Dunn v Sydney City Council, NSWCC, No. 6169/92, 7 June 1993, unreported, rejected the suggestion that, because the applicant's wife received a Social Security benefit for herself and two children whilst the husband only received the benefit for himself, the Court should draw the conclusion that the wife and children were not mainly dependent. 84 I agree with my colleagues' approach to the interpretation of s 37(4) and taking all the evidence into consideration determine on the balance of probabilities that the applicant's de facto spouse was mainly dependent upon him at all relevant times."
11. Unfortunately counsel were unable to provide me with the unreported decisions of the Compensation Court cited by Walker CCJ and I have been unable myself to find them, although I could make arrangements to do so within the next few weeks. However, it appears that none of them is directly concerned with the issue currently before me, i.e. whether the grant of an age pension under the Commonwealth legislation somehow deprives the plaintiff of a finding that she might otherwise be entitled to, namely that she was totally dependent for support upon the deceased at the time of his death.
12. A number of propositions can be drawn from the case law which I have cited: (1) the legal duty of a man to support his wife is a relevant consideration: New Monckton Collieries Ltd v Keeling; (2) the fact that the obligation has been relied upon in the past and been enforced is also a relevant consideration: Potts v Niddrie and Benhar Coal Co Ltd; (3) a fortiori, if the obligation has been voluntarily fulfilled in the past, one can validly deduce, looking to the future, that it might have been filled in futuro if the worker had lived longer; (4) the receipt by the spouse of some income does not necessarily preclude a finding of total incapacity: Kauri Timber Co (Tas) Pty Ltd v Reeman; (5) this principle extends to support given by relatives and friends, including siblings, who are under no legal obligation to provide support; it also extends to charity, that is, to public benevolence.
13. In the current case, as I have pointed out, the plaintiff must be seen as having been totally dependent upon the deceased during the period in which she was not working but the deceased was. That is the period from the date of her cessation of work in 2000 until the retrenchment of the deceased in June 2003. The source of the income of the couple prior to the grant of the age pension on 9 March 2004 is unclear but it may be that the couple were living on the proceeds of a retrenchment package paid to the worker by his former employer or may have been relying upon, for example, unemployment relief granted by the Commonwealth at the rate for a worker with a dependent wife. In other words, it would appear to me that it is likely, i.e., probable, that the plaintiff was dependent upon the deceased from the time she stopped working because of her own medical problem until at least 9 March 2004. The only thing that occurred after that time was the grant of the age pension.
14. Notwithstanding the grant of the age pension, the deceased started to receive a payment from the defendant under the Dust Act on 22 June 2008, initially for total incapacity but from 23 December 2008 for partial incapacity in which the defendant acknowledged that the plaintiff was dependent upon the deceased but only to the extent of 50% because of her receipt of the age pension.
15. That remained the couple's income until they commenced to receive the carer allowance which was in fact paid to the plaintiff but ceased on the death of the deceased. With respect, the allowance appears to have been paid by the Commonwealth in order perhaps to obviate greater expenditure from public moneys, for example, the payment of nursing care to the deceased in the family home during the later stages of his illness. If the Department of Social Security did not make the carer payment and the deceased needed nursing care at home, no doubt the deceased himself would have looked to the current defendant to provide him with the appropriate nursing care in his home. In my view, that income ought be disregarded completely because it falls within the type of payment discussed by Stephen J in Kauri Timber Co (Tas) Pty Ltd v Reeman which I have cited above. This was a payment which did not form an enduring part of the pattern of the life of the plaintiff and the deceased. It ended with the deceased's death and forms no part of any ongoing income of the plaintiff herself. In my view, that can clearly be disregarded.
16. We come back to the primary position, therefore, of whether the payment of the age pension ought be seen to deprive the plaintiff of the otherwise appropriate finding that she was totally dependent upon the deceased for support at the time of his death. Consonant with the authorities collected by Walker CCJ in Claydon I am of the view that the payment of the social security benefit should not be taken into account in determining the question of dependency. I acknowledge, however, that the situation in the current case is different to the cases quoted by Walker CCJ because they all appear to deal with a living worker who was seeking to claim others in receipt of social security as being dependent upon him. If the worker is still living, it is well known and accepted that a weekly payment of workers compensation to the worker will reduce pro tanto his entitlement to unemployment relief, sickness benefits and, for example, the former invalid pension, now called the disability support pension. It would of course be erroneous to reduce a workers compensation entitlement because of a social security benefit when in fact the payment of the workers compensation benefit is supposed to reduce the entitlement to the social security benefit.
17. Called into question, of course, is the interaction of the Federal social security legislation and the Act with which I am construing. Unfortunately neither counsel could refer me to the appropriate Federal legislation and relied upon their understanding of the situation in accordance with the instructions that they had from their clients. Mr Sheller was kind enough to point out that any lump sum payable under the Act to a widow of a deceased worker is regarded by the Department of Social Security as a capital sum amongst the assets of the widow and is taken into account in applying the assets test applicable to the age pension. He also conceded that any interest derived from the capital sum is taken to be income and such income must be disclosed to the Department of Social Security which is paying an age pension. Likewise, the recipient of an age pension is required to disclose to the Department of Social Security the weekly payment of the Dust Diseases benefit which the recipient of the age pension is receiving. In other words, there may be an effect. The payment of benefits under the Act can or could affect the payment of the age pension. In those circumstances it appears to me to be erroneous factually, if not legally, to take into account the payment of the age pension in determining the extent of dependency.
18. There are other pertinent considerations. Let us assume that everything happened 15 years earlier than it did. Assume, for example, that the deceased died not at age 79 but at age 64. Assume that the plaintiff had stopped working not at age 60 but at age 45. Assume likewise that for approximately four years after Mrs Cunha ceased to work, she was totally dependent upon her husband. If those were the facts, when the deceased died he would not have been entitled to any age pension, although he might have been in receipt of a disability support pension. The payment of the Dust Diseases benefit would amount to a pro tanto reduction of the rate of the disability support pension. There would be nothing to rebut a finding of total dependency in those circumstances.
19. Another consideration is this: workers are now encouraged by the Federal government and Federal legislation to invest in superannuation in the expectation that when the worker retires he or she will rely on his or her superannuation for income after retirement, rather than the age pension. If, as is often the case, the superannuation entitlement lies mainly with the husband rather than with his wife, then the question of social security entitlements would not arise in an inquiry of the present nature. Equally, if both the deceased and the plaintiff had their own superannuation allowances, ascertainment of the benefit would be relatively easy because each of the plaintiff and the deceased would have earned their superannuation entitlement.
20. One does not "earn" an entitlement to the age pension. The entitlement arises under the Federal legislation and it is, in essence, a public charitable scheme. It is eleemosynary in nature. The payment of the age pension can be seen to be equivalent to public charity and should be seen in that nature in determining cases of this nature.
21. Accordingly, it seems to me that the plaintiff is entitled to a finding that she was totally dependent upon the deceased at the time of his death and that the lump sum payable to her ought be $332,850, the sum which I understand she would have been entitled to at the time of the deceased's death under s 8(2B)(b)(i)(C). However, if I be wrong in that finding I will proceed to consider the case as if it were one of partial dependency.
22. A few things need to be observed on this issue. Exhibit 3 tendered by the defendant is an occupational therapy report bearing date 23 July 2013, following an assessment made by Ms Fiona Lyon, an occupational therapist, on 12 June 2013 of the deceased, made, no doubt, for the purpose of the proceedings in the DDT. I shall commence by reciting what that report says about the deceased's "other health issues" because I shall need to discuss that matter later. On this issue the report says this: "6.3 Other Health Issues i. Prior to his diagnosis of asbestosis, Joe was diagnosed with lung cancer in 2008. At the time he was complaining of leg pain. His general practitioner noticed an unusual breathing pattern. Lung cancer was diagnosed. A small isolated lung cancer in his left lobe was excised and Joe was advised that "he was cured". ii. After convalescing from his lung cancer surgery, Joe went travelling to Europe, something he would usually do every 2-3 years. iii. In 1992 Joe had a triple coronary artery bypass graft operation and recovered sufficiently to return to work. He has since been monitored by way of an annual stress test and review by his cardiologist, Dr Wilcox. iv. Joe reported to be a former smoker, having ceased 24 years ago. v. Joe reported to be a social drinker, enjoying about 5 or six drinks on Saturday and Sundays only. vi. Joe is a diabetic, his condition controlled by medication. vii. Joe has elevated cholesterol levels, also managed by medication. viii. Joe described an old back problem, from being hit by a crane in the workshop some years ago. He also described himself to have arthritis in his back. 6.4 Summary Of Medical Conditions 6.4.1 Conditions i. Breathlessness with slight exertion ii. Breathlessness at rest iii. General fatigue and tiredness. iv. Upper back pain 6.4.2 Prognosis And Stabilisation i. Neither Joe or his family are aware of his prognosis and timeframe of his potential demise." Part 6.6 of the report is a list of the deceased's then medication which summarises medication for diabetes, cholesterol, hypertension and arthritic pain as well as medications referable to the deceased's pulmonary condition.
23. Section 7 of the report concerns "Social and Living Circumstances" of the deceased and the plaintiff. The first part of that discussion concerns their "pre-injury circumstances". It contains this matter: "7.1.1 Social Environment and Householders i. Joe, a retired boilermaker, lived with his wife, Maria, date of birth 18/12/19. ii. The householders included Joe and Maria. iii. Joe and his wife are of Portuguese origin. They migrated to Australia in 1971 from Madeira. Portuguese is the language spoken routinely at home. Joe speaks fluent rudimentary English by comparison to his wife, who has poor English skills. iv. The couple have five children, adult grandchildren and eleven grandchildren. All of their families live between five and thirty minutes travel from the Lewisham home. Joe has a sister living in the Liverpool area whom he would visit approximately weekly. She did not drive. v. The children and grandchildren all speak English. vi. The couple have lived at Lewisham for the past 36 years and raised their family in this home. vii. The family are close, and would meet routinely on Sunday night the dinner. The meal will be prepared by Joe and his wife. The whole family all ate together for what would typically be a barbeque styled meal. viii. Members of the family would visit or call each other by phone once or more at other times during the week. 7.1.2 Indoor Domestic Role i. Joe and his wife had a very regular domestic routine. Joe would generally do the outdoor tasks whilst Maria most indoor cleaning tasks. ii. It was Joe's specific job to mop all the indoor floors as the house is tiled throughout. iii. Joe would assist his wife preparing vegetables, peeling and chopping vegetables for the evening meal as instructed by his wife. He also helped with washing the dishes after the evening meal. iv. Joe would always do the barbeque cooking for the Sunday night dinner. Preparations for this meal would commence shortly after midday and occupy him the whole afternoon. v. It was always Joe's job to take out and collect the garbage bins each week. vi. Inspection of the home revealed a very high standard of cleanliness, tidiness and order." Times are then given for the work which was done in the house and outside the house by the deceased. The deceased spent these number of hours per week on the following activities prior to his developing his pulmonary condition: Cooking/washing up - three hours per week. Vacuuming/mopping - one hour per week. Garbage removal - 0.25 hours per week. Indoor window cleaning - 16 hours per annum. Changing ceiling light globes - as required. Car cleaning - 1 car - washing, wiping, vacuuming, detailing - one hour per week. Mowing and gardening - three hours per week. Yard tidying, including barbecue maintenance - two hours per week. Other external activities, including cleaning windows and gutter, the garage and repairs and maintenance - two hours per week.
24. Unlike many women these days, the plaintiff has never held a driver's licence and has never driven a motorcar. Shopping was done jointly by the deceased and the plaintiff. That took between three and five hours per week. The report outlines that one hour was spent per week by the deceased in obtaining take-away meals, which appears to have happened probably once every week.
25. The report outlines in s 7.1.7 the leisure activities of the deceased and also the plaintiff, prior to his becoming ill with his dust disease. That part of the report is this: "7.1.7 Leisure Activities i. Joe's prime interests appear to have included socialising with friends, visiting people at their homes and possibly sharing a refreshment or meal with them. He estimated visiting friends 3 or 4 times per week. Friends all lived locally. ii. Joe and Maria were active participants of the local Portuguese community, meeting at the Portugal Madeira club in Marrickville every Saturday night. The main activity included dancing to live music. They usually ate their meal at home before attending. iii. Joe attended church regularly each week at this local Catholic church at Lewisham. Normally he would walk to the end of his street, then climb the steps over the rail line for this activity, a total of 10 minutes. Sometimes he would drive to Enmore. Church would be attended on Saturday evening or Sunday morning. iv. Joe travelled overseas every two or three years, mostly returning to Europe, including Portugal or Madeira. v. Joe would travel away with his wife locally within Australia two or three times per year. This usually involved driving a hired car to a coastal locality, often accompanied by his friends. They would hire an apartment and stay for one or two weeks. Such localities might have included Port Macquarie, Coffs Harbour, Cairns or Batemans Bay."
26. At the end of this section of the report, Ms Lyon compared the deceased's typical domestic involvement with the statistical average for those in Australia. She said this: "Joe's estimated overall participation was also calculated at about 19 hours per week and about seven hours per week on care of grounds. This higher level of participation reflects [on] the application of time commensurate with a more meticulous standard of care. The home assessment confirmed this impression."
27. The plaintiff and the deceased could be seen as sharing a very conventional life for a married couple with five children in Australia reflective of their generation. In many ways, the plaintiff was more highly dependent upon her husband than most Australian women are. In particular, the plaintiff was wholly dependent upon the deceased for transportation to family events, social events and necessary domestic activities such as shopping. Likewise the plaintiff would have been wholly dependent upon her husband for transportation to medical appointments and the like, and had the deceased not died, but had he survived, it is likely that she would have needed to rely upon his transporting her more often as she grew older and as her need for medical intervention may have increased.
28. One factual matter which needs to be determined is the deceased's life expectancy but for the dust disease which caused his death. It should be obvious from exhibit 2, which I quoted yesterday, that the defendant accepted that the plaintiff's life expectancy was 12 years but for his death. Certainly that has been accepted before me as the basis on which the defendant made its calculation of the appropriate lump sum. However, the defendant now says that the plaintiff's life expectancy was not that great. The defendant relies upon an opinion expressed by Associate Professor A B X Breslin, who was qualified by the deceased's solicitors for the purposes of proceedings in the DDT. The same solicitors act for the current plaintiff, as one could expect. Professor Breslin examined the plaintiff at his home on 2 May 2013. He generated a report bearing the date 9 May 2013, which became exhibit 5. Exhibit 5 came into evidence during the course of addresses. It might be thought that it was tendered irregularly. I should state that it had been the intention of learned Counsel for the defendant to tender it but in the process of seeking to remove from the defendant's tender bundle documents which were already in evidence, it was inadvertently excluded, as far as he was concerned. The report had been served by the plaintiff upon the defendant. It had not been served back by the defendant on the plaintiff. However, when I asked learned Senior Counsel for the plaintiff what prejudice there was in my admitting the report into evidence in the defendant's case, he could point to none and he did not raise any vehement objection against the tender.
29. Professor Breslin's report contained this history relevant to dyspnoea: "He has been dyspnoeic for about ten years or more and he first noted it with exertion and it is becoming worse. It is perennial. He had two acute attacks of dyspnoea requiring in-patient admission both in the second half of 2012. He has had nocturnal dyspnoea about once a night over the last three years but these have disappeared as he has been using the oxygen at night. His effort tolerance is 20 - 50 m on the flat limited by both dyspnoea and calf claudication. He wheezes and inhaled bronchodilator helped. Dyspnoea is precipitated by windy days, humidity, air-conditioning, pressure pack sprays, passive smoke, emotion, exertion, house dust and respiratory infections." I do not know exactly what the deceased told the professor which led him to the view that the plaintiff had "calf claudication." Claudication is a narrowing. It clearly does not refer to narrowing of the gastrocnemius muscle. It probably refers to narrowing of the veins within the calf. The examination conducted by the Professor commences on the middle of p 6 of the report. I have read that and it is not clear exactly what the doctor examined. Most of the findings relate to the deceased's pulmonary state. However, I note that he found that venous pressure was not raised but I do not know if that relates to the entire vascular system. He also noted some ankle oedema, so presumably the doctor looked at the plaintiff's lower limbs and noticed some swelling around the ankles consistent with fluid retention. How exactly the plaintiff's calves are narrowed or the vessels within them are narrowed and the significance of that is completely unclear.
30. At the top of p 7 of his report, the Professor sets out a review of the radiological investigations but they tell me nothing about the plaintiff's vascular state. The Professor expressed the view that the plaintiff had pleural plaques, confirming exposure to asbestos. He also found that there that were interstitial lung disease changes which on the balance of probabilities were those of asbestosis. He also thought that the deceased had quite marked smoking induced chronic obstructive pulmonary disease with emphysema, as well as diabetes mellitus and coronary artery disease and peripheral vascular disease, the latter being manifested by the calf claudication. In the 12 of his Opinion, the Professor said this: "His prognosis is that he is likely to be cured of his lung cancer as it is now five years since its resection. He is now aged 76 and it is likely that he will live another four to five years from now, and it is more probable than not that his death will be related to vascular disease and not to any asbestos-induced disease, except in the unlikely event of him [sic] developing mesothelioma or recurrent lung cancer."
31. There are two sources which tell me the cause of the deceased's death. The first is exhibit K, the certificate of the medical assessment panel which certified that the deceased died from the dust disease of asbestosis/carcinoma of the lung. The second is exhibit M, a report of Professor P J Torzillo, a respiratory physician. Professor Torzillo tells me the primary cause of the deceased's death was a progression of his asbestosis. The deceased died on 29 September 2015, two years and five months after he was examined by Professor Breslin. Professor Breslin's prognosis contained in his report of 9 May 2013 was not particularly good. The deceased did not live for a further four or five years, but for two years and four to five months. His death was due to the asbestosis, rather than to any vascular disease.
32. There is no suggestion the deceased developed mesothelioma; nor am I aware of a recurrence of the lung cancer, which had been resected in June 2008 by Professor Torzillo at the Royal Prince Alfred Hospital. If the cancer had recurred, I would have expected Professor Torzillo to have told me so in his report of 23 October 2015. However, the defendant submits in accordance with Professor Breslin's prognosis that the deceased would have died in any event by May 2018 and therefore his life expectancy should not be seen as being 12 years.
33. I have grave difficulty in accepting that submission. Professor Breslin is not a vascular surgeon or a vascular physician. I would certainly need evidence from a doctor in such a specialty to reach that view. Furthermore, the defendant itself has had the deceased examined on a number of occasions by some eminent doctors; for example, the Medical Authority certificate of 6 September 2012 has been executed by Dr Peter Corte and Dr Greg Kaufman and the certificate as to the cause of death has been executed by Dr Ian Gardiner, Dr John Mann and Dr Geoff Tyler. I understand each of those practitioners to be a specialist in dust diseases. If there were a real issue as to the life expectancy of the deceased, absent the dust disease, then I would expect evidence of a more persuasive nature to have been led by the defendant. It was not. There is no evidence from a vascular surgeon or vascular physician; there is no evidence from any treating doctor, and the extent of the deceased's vascular problems has never been established other than on a history of some claudication of the calf and I can only presume that means a claudication of the veins. I had thought and expressed the view during addresses that a common outcome of non-insulin dependent diabetes mellitus, (type 2), was a peripheral vascular disease but in that regard I erred. The typical complication is peripheral neuritis rather than peripheral vascular disease. It could be related, but necessarily appropriate evidence ought to have been called and was not. Considering the defendant itself accepted for the purposes of making its assessment of the extent of the plaintiff's dependency upon the deceased, the fact the deceased would have lived for a further 12 years, I am content to go on that path rather than to rely upon the opinion of Professor Breslin which itself is flawed.
34. I turn then to look at the extent of the dependency of the plaintiff upon her late husband. On the one hand I know the three sources of income of the plaintiff and the deceased at the time of the deceased's death. They were the deceased's Dust Diseases Board weekly payment, the Department of Social Security pension, that is, the age pension for both the deceased and his wife amounting to a weekly figure of $532, and the family payment carer allowance of $51 per week. For reasons I have already given, I ignore the last of those sums. The total of the income from the two sources is $892 per week. To that should be added the interest upon the term deposit of $79 per week, giving a total of $971 per week.
35. According to exhibit E, the fortnightly pension payable solely because of the age of the plaintiff was $401.14 per fortnight or $200.57 per week. The plaintiff's schedule of expenses prior to the death is exhibit C. Most of those expenses continue. However, some modification is called for. For example, groceries are stated to be $250 per week. It is common knowledge that a couple can live more cheaply than two individuals. It is also common knowledge that groceries include things referable to the running of a household such as, for example, items used in the laundry, in the kitchen and in the bathroom, and many things are included are bought from the supermarket which are not merely food and drink. The amount stated for groceries in exhibit C is $250, but I would reduce that by $50. The car is said to cost $90 per week. What happened to the car after the deceased's death is unknown to me. However, since the plaintiff does not drive and has never been licensed, presumably the car has been handed on to one of the plaintiff's children or grandchildren. Therefore, she ought not be spending $90 per week on a car. The list includes gardening and gutter cleaning expenses and they are clearly something that was incurred because of the deceased's poor health due to his dust disease, and before he became ill the evidence is that he did those things; the deceased did the gardening and gutter cleaning himself. That is attested to in the report of Ms Lyon which I quoted. They ought stay. $60 per week has been allowed for clothing and accessories. Necessarily, they would no longer include any provision for clothing for the deceased, but the amount of the reduction is small. I would only allow a $5 deduction for the amount claimed. There was a claim for $30 for medication. Most of the medicines that the deceased ingested would have been paid for by the defendant under the Act. I therefore allow the $30 set out in the schedule. Annual holidays are allowed for at $210 per week. It is clear from what I have already quoted that the plaintiff and his wife regularly returned to Portugal and to Madeira, it would appear every second year at least, for their annual holidays. Those holidays would have been expensive. One would think that the plaintiff would like to continue to keep contact with her family in the Madeira islands. However, one would not expect a lady who was 75 years old at the time of her husband's death, to travel by herself. Necessarily, she would need to have a travelling companion. It might be a child, it might be a grandchild; it could even be a great grandchild. I believe in the circumstances that it is proper to continue to allow that item.
36. The total as calculated in exhibit C is $891 per week. That should be reduced by $145 to $746 per week. However, I accede to the submission of Mr Parker SC that there was non-cash support provided to her by the deceased. In his written submissions, Mr Parker SC referred to household chores and driving duties. I have outlined, by quoting from the report of Ms Lyon the sort of activities in which the deceased was involved prior to his becoming ill. However, of greater substance is the transportation that the deceased provided to the plaintiff which, if it is now to be paid for, must be paid by way of taxis or public transport. The plaintiff told me that her transportation is now largely provided by her daughters, that is is provided by members of her family, albeit that they are under no legal duty to provide such assistance to her. I, therefore, would allow the $100 per week suggested by Mr Parker.
37. That means the extent of the plaintiff's dependency upon her husband was $846 per week. From that I deduct the $200.57 per week of the age pension. That provides me with a figure of $645.43 per week. The figure arrived at by Mr Parker was $805 per week. I may be permitted to round off the figure at $645.50 per week. However, that weekly dependency amount must be reduced by the weekly pension that the plaintiff is receiving from the defendant at the time that the award commenced, the fortnightly amount was $549 which is a weekly amount of $274.50. If I take that sum from $645.50, I obtain a residue of $371 per week. I deduct from that sum $79, being the interest on the term deposit, so that the residue becomes $292.
38. I am asked to apply the 3% discount rate by Mr Parker. Mr Sheller asked me to apply the 5% discount rate. The multiplier for the 5% discount rate is 473.9. A loss of $292 per week over 12 years at 5% is $138,379.00. This issue was not discussed in addresses. Mr Sheller drew my attention during the course of these reasons to s 151J of the 1987 Act and which provides that in calculating damages for future economic loss for common law proceedings the discount rate is 5%. There is a similar provision to s 151J of the 1987 Act in s 14 of the Civil Liability Act 2002. I understand from Mr Sheller's submission that Harrison J has determined that that is the appropriate rate to apply in an action under the Compensation to Relatives Act: Norris v Routley [2015] NSW SC 883 at [26]. The authorities make it clear that the assessment of dependency is similar to the calculation that is made in respect of a partially dependent person under the Compensation to Relatives Act. It, therefore, appears to me to be appropriate to apply the 5% discount rate.
39. If I may be permitted to round up, it appears to me that had I found the plaintiff to be only partially dependent for support upon her late husband at the time of his death, the appropriate lump sum to award under s 8(2B)(d) would be $138,379 rather than the $99,855 provided by the Authority in its award of 20 November 2015.
40. I should explain what I have just done and why. Learned senior counsel for the plaintiff referred me to the decision of Warilla Timber and Hardware Pty Ltd v Newton (1995) 11 NSWCCR 546. The principal judgment was given by Mahoney AP with whom Kirby ACJ (as his Honour then was) and Clarke JA agreed. That concerned the assessment of the dependency for partial dependence on a deceased worker under the 1987 act. At 549C, Mahoney AP said this: "..the Court is familiar with the approach which conventionally has been adopted in relation to calculations of this kind in other related areas, for example, under the Compensation to Relatives Act 1897. On several occasions it has been pointed out that, as I would describe it, extrapolations can be made from the facts as they have been provided in relation to the dependence of applicants upon a deceased person. In relation to the Compensation to Relatives Act, for example, the High Court has held on more than one occasion that it is wrong to hold parties to more mathematical calculations and that extrapolations may be made. In making such extrapolations and in making prognoses as to the future, a judgment must be made from the deceased's circumstances, character, propensity and performance to the date of death. Such may vary considerably, but an examination of what was held open on the facts in such cases as Government Insurance Office (NSW) v Cox (1976) 50 ALJR 559 shows the approach which is open to a trial judge." At 552B, Mahoney AP pointed that the provision in s 25(1)(a) of the 1987 Act, the maximum amount is a provision by way of a cap. It is not a provision which operates as the basis for the calculation of a proportionate sum such as is allowed under s 66 and s 67. At 551C, his Honour said this: "The basis of the approach to be adopted in this regard has been discussed in a number of cases. Mr Deakin QC has referred, for example, to Simpson v Vukicevic (1962) 80 WN(NSW) 387. The relevant passage appears in the judgment of Sugerman J at 391. If I may summarise the matter somewhat inaccurately, the approach to be adopted is similar, although not identical in precise detail to that adopted under the Compensation to Relatives Act. The amount to be paid and the basis of calculation is referred to in the English cases, to which reference is made by Sugerman J. The basis is said to be the compensation for the pecuniary loss sustained by reason of the loss or cessation of the workman's power of earning." At 552F, Mahoney AP said this: "In arriving at an appropriate figure, it is proper to take into account the degree of dependency and, as Mr Deakin QC has in his submissions emphasised, the period of dependency involved. In the present case, this is a period of 17 years. I think the Court should adopt the figure of $90 per week adopted by the learned judge. However, it would wrong merely to do a mathematical present value calculation of $90 per week over the period of 17 years. The figure must be reduced to a present daily basis and allowance must be made for contingencies. In this case the contingencies are not great. I am conscious of the possibility that the son may have married. If he married, it may be that his contribution to his mother would have been less. One does not know. That is a matter to be treated as a contingency. It may be he would have continued living with his mother, even if he had married. Maybe he would not have married but would have continued with her until the end of her life. There does not appear to have been any reason to suggest that the mother would not have lived to the end of her expectation of life, namely 17 years."
41. In the current matter I have sought to apply those principles approaching the matter from the point of view of a claim under the 1987 Act. However, having ascertained a weekly figure for the extent of the dependency, I have deducted from it the weekly payment to the widow which in my experience is a peculiar provision in statutes of this nature. Therefore I reduced $645.50 per week by $274.50 per week, the amount of the weekly payment that first became payable to the plaintiff after the death of her husband. I further reduce that sum by $79, being the interest payable weekly on the lump sum invested. That left a residue of $292 per week, which I then applied over the period when the deceased would have lived, had he not died of his dust disease, that is for a further period of 12 years.
42. However, that having been said, I must also bear in mind that the weekly payment will continue to the widow after that 12-year period until the end of her life expectancy. When the deceased died the plaintiff was 75 years. The life expectancy for a lady at the age of 75 years is 14.75 years on one Table, that is the Median Life Expectancies in Australia published in 2015. Therefore, the plaintiff will continue to receive the weekly payment for about two and three quarter years beyond the time her husband could have been expected to live. This to me indicates that I should further discount the sum of $138,379.
43. The appropriate sum, I am assured by learned counsel for the defendant is $20,641 which reduces the lump sum previously arrived at to the sum of $117, 737. Clearly, in making that calculation I have taken into account the extent or degree of dependency, the period of dependency involved and I have made an allowance for the value of the weekly payment beyond the expectation of life of the deceased but I have not allowed for any other contingency. That is because in my view it is not necessary to do so. There is no evidence that the plaintiff's life expectancy is impaired by her complaint of angina pectoris, but she has had that complaint since 2000 at least, that is, for 16 years, or 15 and a half years, and there is no suggestion that it is not adequately controlled by medication. As was submitted by Mr Parker, the only relevant contingency is the mortality of both the deceased and the plaintiff. I have already made a finding about the mortality of the deceased, that, but for his dust disease he would have seen out his normal life expectancy and in particular that I was not persuaded by the opinion of Professor Breslin that his life expectancy was reduced by way of his peripheral vascular disease. As I said, there is nothing to suggest on my understanding of the evidence that the life expectancy of the plaintiff herself is in any way reduced. I have sought therefore to apply the principles in Warilla Timber and Hardware Pty Ltd v Newton.
44. Another thing which was discussed in submissions was the historical background to the interaction of workers compensation legislation of this State with the social security system of the Commonwealth. The predecessor to the 1987 Act was the Workers Compensation Act 1926. That Act for many years did not terminate weekly payments by reason of age, such that a weekly payment for either total incapacity or partial incapacity continued whilst the incapacity persisted until the worker's death. However, the 1926 Act was amended by the Workers Compensation Amendment Act 1985 No 91. That inserted s 60A into the 1926 statute. The provisions of s 60A were these: "(1) Notwithstanding any other provision of this Act, where a male person, after the commencement of this section - (a) receives an injury before attaining the age of 65 years - a weekly payment of compensation under this Act shall not be made in respect of any resulting period of incapacity occurring after that person attains the age of 66 years; or (b) receives an injury on or after attaining the age of 65 years - a weekly payment of compensation under this Act shall not be made in respect of any resulting period of incapacity occurring after the first anniversary of the date of the happening of the injury. (2) Notwithstanding any other provision of this Act, where a female person, after the commencement of this section - (a) receives an injury before attaining the age of 60 years - a weekly payment of compensation under this Act shall not be made in respect of any resulting period of incapacity occurring after that person attains the age of 61 years; or (b) receives an injury on or after attaining the age of 60 years - a weekly payment of compensation under this Act shall not be made in respect of any resulting period of incapacity occurring after the first anniversary of the happening of the injury."
45. As I understand it, that provision came into force on 30 June 1985. That provision is enacted with appropriate amendments in s 52 of the 1987 Act. That was how amendments commenced to be made to the legislation in this State to try to marry the provisions of the workers compensation legislation and the social security scheme, by seeking to terminate benefits under the workers compensation legislation when a worker became entitled to the age pension. I have added that because it was discussed in addresses and it gives some insight into the whole question of the interaction of the social security legislation and the workers compensation legislation of this State. I should indicate that I clearly have not followed the methodology adopted by the defendant which is set out in this document, exhibit 2 in these proceedings, which I have cited earlier.
46. Clearly the quantum of the lump sum is determined merely by the expected period of life of the deceased worker had he not died of a dust disease and is not predicated merely on the extent of the dependence of the surviving spouse. In that regard, it appears to me that the policy adopted by the defendant does not take into account the specific provision in s 8(2B)(d) of the Act that the quantum of the payments payable to a partially dependent spouse of a deceased worker is a sum to be "reasonable and proportionate to the injury" to the surviving spouse. To properly ascertain the quantum of the compensation payable one must take into account not only the period over which the support would have continued, but for the worker's death, but also quantum of that support.
47. Mr Simmons, do you require any further reasons for judgment?
48. SIMMONS: No, your Honour.
49. HIS HONOUR: Mr Sheller?
50. SHELLER: Yes, your Honour. [MATTERS RAISED BY THE DEFENDANT]
51. HIS HONOUR: For those reasons I make the following orders:
52. Appeal allowed.
53. I set aside order 1 made by the defendant in its award of 20 November 2015.
54. In lieu of that order, I make the following order: "the amount of $332,850.00 be awarded to the dependant in accordance with s 8(2B)(b)(i)(c) of the Act"
55. Defendant to pay interest on the difference between $332,850 and $99,855 from 20 November 2015 to date at the rate specified in UCPR 36.7.
56. Defendant to pay the plaintiff's costs.
57. Liberty to apply on three days' notice to my Associate.

Amendments 16 November 2016 - Amendments to paragraphs [60], [61], [64], [65], [66]. 16 November 2016 - [62] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 November 2016