Kauri Timber Co (Tas) Pty Ltd v Reeman

Kauri Timber Co (Tas) Pty Ltd v Reeman - [1973] HCA 8 - HCA 1973 case summary — Zoe

[8]

Maintenance and support for this purpose will not be the same concept as is relevant in legislation as to testator's family maintenance or in matrimonial causes. The relationship of expenditure on the maintenance and support of the claimant to the earnings of a worker must, in any case, circumscribe the area denoted by the expression, which is to a degree imprecise. The expenditure which in my opinion, is comprehended by it is, I think, related to the provision of the necessities of life having regard to the manner in which the worker's household in which the claimant to dependency has participated lived. Such a view is, in my opinion, consistent with the speeches of the House in Main Colliery Co. Ltd. v. Davies [1] That does not involve setting up some standard as a level of expenditure by reference to which support or maintenance can be referred. But the words "maintenance and support" do involve, in my opinion, the idea that there are some expenditures by the worker's household which are not expenditures for the support and maintenance of that household or of its members, though made out of the worker's earnings. Thus, if, as I think is the case, a wife does not cease to be wholly dependent on the earnings of her husband because she expends some income of her own, irrespective of how she may employ it, there must arise in each case the question whether some use of her private income has made her less than wholly dependent in respect of her support and maintenance on the earnings of her husband. No doubt there may arise cases in which the private income of a wife has been used to lift the living standard of the family and to increase the area of expenditure which could properly be said to be expenditure for the support or maintenance of the household, including the wife. But I should imagine that such cases under worker's compensation legislation would be extremely rare. It would be unwise, in my opinion, to determine what is total dependency in terms appropriate to the necessary exclusion of such a wife from total dependency. It may be a difficult matter to decide in point of fact whether or not total dependency on the husband's earnings exists in such a case. But it must be decided by answering the question whether she relied for her maintenance and support as distinct from all the advantages she may have or enjoy entirely on the earnings of her husband.

[47]

It has been held that the fact that a wife was in receipt of earnings of her own does not necessarily mean that she was not wholly dependent on her husband, for her employment may have been only intermittent or casual, and the probability may have been that it would not have continued in the future: Hodges v. Scott's Provision Stores Pty. Ltd. [1] ; Borson v. C. A. Hine & Co. Pty. Ltd. [2] . That does not, however, assist in determining the present case where the respondent has owned her property for a number of years and the proper inference was that she would continue to derive regular income from it. In New Zealand the view has been expressed that a wife who has funds of her own but who does not in fact use any of them for her own maintenance or for household expenses may be regarded as totally dependent on her husband's earnings: McFayden v. Gillooly and Brown [3] ; Orr v. Attorney-General (N.Z.) [1] . In both of those cases, which were decisions of judges of first instance, the remarks were obiter. There seems to be no decision of an appellate court directly on the point. In Pryce v. Penrikyber Navigation Colliery Co. Ltd. [2] , where it was held that the fact that money came to a widow on the death of her husband could not be taken into consideration in deciding whether she was wholly dependent, the members of the Court of Appeal did make some remarks as to the meaning of the words "wholly dependent". Collins M.R. said [3] : "I understand by the words "wholly dependent" that there was no other source of income during the lifetime of the deceased other than his earnings on which the applicant was dependent." Stirling L.J. said [4] : "Put broadly, the test raised by the Act is whether what the workman was earning at the time of his death was the sole source to which the applicant could have looked for maintenance at that time." These words of Stirling L.J. suggest that a woman will not be wholly dependent on her husband's earnings if she had some other source to which she could look for maintenance, even if she did not resort to that other source, but the statement by Collins M.R. might be thought to express a different view, and is at least ambiguous. Both of these passages were cited, with apparent approval, in Hodgson v. West Stanley Colliery [1] , by Lord Shaw of Dunfermline, who apparently saw no conflict between them. In truth it seems to me that these judges did not have in mind the question whether "dependent" in the statutory provision meant "in fact relying for support" or "having to rely for support".

[49]

Although there is little authority on the question that now falls for decision, it has repeatedly been emphasized, in cases in which workers' compensation legislation similar in effect to that of Tasmania has been considered, that the question of dependency is governed by factual and not by theoretical considerations. It has been held that a mother may be dependent on a son who has no legal obligation to maintain her but who in fact contributes to her support: Hodgson v. West Stanley Colliery [2] . On the other hand, a wife would not be dependent on her husband simply because she had a legal right to be supported by him: New Monckton Collieries Ltd. v. Keeling [3] . The fact that a daughter was physically able to support herself by her own exertions did not prevent her from being held to be wholly dependent on her father: Simms v. Lilleshall Coal Co. [1] . The effect of the authorities was summed up in a sentence by Fullagar J. in Fenton v. Batten [2] , when he said: "If the evidence establishes that the alleged "dependant" relied or relies on another as the source, wholly or in part, of his or her means of subsistence, then dependency is established." The principle underlying these authorities is that it is the actual fact of dependence or reliance on the earnings of another for support that is the test. It follows that the fact that a woman has some property and income of her own does not prevent her from being wholly dependent on the earnings of her husband, if in fact she wholly depends on those earnings for her support, and does not partly support herself out of her own resources. I do not expect that if this view is accepted there will be many claims for workers' compensation made by wealthy widows, for in the nature of things it is unlikely that a woman of substantial wealth would in fact wholly depend on the earnings of her husband for her support On the other hand, it seems to accord with the policy of the Act to hold that a woman who in fact wholly depended on the earnings of her husband for her support should be compensated accordingly even if she has some property and income of her own.

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Before

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Judgment (82 paragraphs)

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