Kuenzel v Workers Compensation - [2012] NSWDC 243 - NSWDC 2012 case summary — Zoe

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Kuenzel v Workers Compensation

[2012] NSWDC 243

District Court of NSW|2012-08-14|Before: Mr J

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Court

District Court of NSW

Decision date

2012-08-14

Before

Mr J

Source

Original judgment source is linked above.

Judgment (15 paragraphs)

[1]

Judgment 1The plaintiffs by statement of claim filed on 15 May 2012 appeals against a determination of The Workers' Compensation (Dust Diseases) Board of New South Wales (in letters dated 24 August and 24 November 2011) for refusing their application for compensation as dependents of the late Dusan Pauchlik (the deceased). This appeal was brought pursuant to s 8I Workers' Compensation (Dust Diseases) Act 1942 (NSW) ("the Act"). 2The plaintiffs, Rhonda Kuenzel and her infant son Cristian Kuenzel (hereafter referred to as "the first plaintiff" and "the second plaintiff" respectively), are the daughter and grandson of the deceased, who was diagnosed with malignant pleural mesothelioma in December 2009. At the time of his diagnosis and death, he was living with the first plaintiff, her husband and the second plaintiff in a property they had recently purchased together, with the intention of living together as a family unit. After the deceased's diagnosis, he received weekly payments of compensation. He underwent surgery in September 2009, which included a biopsy and required a great deal of homecare, as his health condition rapidly deteriorated between the date of diagnosis in September 2009 and 27 January 2010, the date of his death. During this period, he was in receipt of weekly payments of compensation under the Act in relation to his total disablement by mesothelioma. 3The plaintiffs seek the following order: (a)Set aside the determination of the Workers' Compensation (Dust Diseases) Board of New South Wales dated on or about 24 August 2011. 4The alternative determinations the plaintiff seeks are: (a)The first plaintiff was dependent for support upon the deceased immediately before his death pursuant to section 8(1) of the Act. (b)The second plaintiff was dependent for support upon the deceased immediately before his death pursuant to section 8(1) of the Act. (c)The first plaintiff is entitled to compensation from the defendant in accordance with section 8(2) of the Act. (d)The second plaintiff is entitled to compensation in accordance with section 8(2) of the Act or in the alternative in accordance with section 8(2B) of the Act. 5The issue for determination is whether the first and/or second plaintiffs were dependent for support upon the deceased before his death. My obligation is to reconsider the matter afresh and reach my own conclusions: Workers' Compensation (Dust Diseases) Board v Veksans (1993) 32 NSWLR 221. 6I shall first set out the legislative framework under which the appeal is brought.

[2]

The legislative framework 7This is an appeal brought under s 8I of the Act. The plaintiff's entitlement to compensation by way of an award from the defendant is contained in the Act. The relevant sections in s 8 of the Act provides: "8 Certificate of medical authority and rates of compensation (1) Subject to this Act: (a) where the medical authority certifies that a person is totally or partially disabled for work from a dust disease and that the person's disablement was reasonably attributable to the person's exposure to the inhalation of dust in an occupation to the nature of which the disease was due, such person shall, if the board finds: (i) that such person was a worker during the whole of the time the person was engaged in such occupation, or (ii) that such person was a worker during only part of the time the person was engaged in such occupation, and, on the report of the medical authority, further finds that the person's disablement was reasonably attributable to the person's exposure to the inhalation of dust in such occupation during the time that the board has found that the person was a worker in such occupation, be entitled to an award from the board, and to receive compensation at the prescribed rates from the Fund, (b) where the medical authority certifies that a person died from a dust disease and that the person's death was reasonably attributable to the person's exposure to the inhalation of dust in an occupation to the nature of which the disease was due, the dependants of such person shall, if the board finds: (i) that such person was a worker during the whole of the time the person was engaged in such occupation, or (ii) that such person was a worker during only part of the time the person was engaged in such occupation, and, on the report of the medical authority, further finds that the person's death was reasonably attributable to the person's exposure to the inhalation of dust in such occupation during the time that the board has found that the person was a worker in such occupation, be entitled to an award from the board, and to receive compensation at the prescribed rates from the Fund, (c) where a person dies and: (i) immediately before the person's death the person was receiving, or was entitled under an award of the board or of the Silicosis Committee to receive, continuing payments of compensation at the prescribed rates from the Fund in respect of the person's disablement for work from a dust disease, or (ii) (a) the person had before the person's death applied to the board or to the Silicosis Committee for compensation under the provisions of this Act or to be examined by the medical authority and: (i) the medical authority had before the person's death examined such person and certified either before or after the person's death pursuant to the last examination of such person made by the medical authority before the person's death that such person was at the time of that examination totally or partially disabled for work from a dust disease and that the person's disablement was reasonably attributable to the person's exposure to the inhalation of dust in an occupation to the nature of which the disease was due, or (ii) the medical authority had not before the person's death examined such person pursuant to such application but after the person's death certifies that such person was immediately before the person's death totally or partially disabled for work from a dust disease and that the person's disablement was reasonably attributable to the person's exposure to the inhalation of dust in an occupation to the nature of which the disease was due, and (b) the board finds: (i) that such person was a worker during the whole of the time the person was engaged in such occupation, or (ii) that such person was a worker during only part of the time the person was engaged in such occupation, and the medical authority further certifies that the person's disablement was reasonably attributable to the person's exposure to the inhalation of dust in such occupation during the time that the board has found that the person was a worker in such occupation, the dependants of such person shall, if they are not entitled under paragraph (b) of this subsection to an award from the board and to receive compensation at the prescribed rates from the Fund, be entitled under this paragraph to an award from the board and to receive compensation at the prescribed rates from the Fund: Provided that the board may refuse to make an award in favour of and to pay to the dependants of a person referred to in subparagraph (i) of paragraph (a) of subparagraph (ii) of this paragraph the whole or any part of the compensation to which such dependants would, but for this proviso, be entitled under the provisions of this Act if that person before the person's death refused, neglected or failed, without reasonable cause, to submit for examination by the medical authority in accordance with a request of the board or the Silicosis Committee made to the person after the last examination of the person made by the medical authority before the person's death. (2) The prescribed rates of compensation payable under an award of the board made pursuant to subsection (1), not being an award to which subsection (2B) applies, shall, subject to this section, be: (a) where the award is made pursuant to paragraph (a) of that subsection-the weekly compensation payments prescribed by Division 2 of Part 3 of, and Schedule 6 to, the Principal Act in respect of workers employed in or about a mine, (b) where the award is made pursuant to paragraph (b) of that subsection-the compensation payments prescribed by Division 1 of Part 3 of, and Schedule 6 to, the Principal Act in respect of workers who die before the commencement of that Division, calculated as if those provisions as in force at the date of death had been in force at the date of the injury to the person whose dependants are entitled to the award, (c) where the award is made pursuant to paragraph (c) of that subsection and the disablement for work from the dust disease was: (i) total-the compensation payments prescribed by Division 1 of Part 3 of, and Schedule 6 to, the Principal Act in respect of workers who die before the commencement of that Division, calculated as if those provisions as in force at the date of death had been in force at the date of the injury to the person whose dependants are entitled to the award, (ii) partial-such percentage of the compensation payments that would have been payable under subparagraph (i) had the disablement been total as is equal to the percentage of the person's disablement for work from the dust disease as certified by the medical authority, where the dependants of the person are entitled to compensation payments by reason of the operation of subparagraph (i) of paragraph (a) of subparagraph (ii) of paragraph (c) of subsection (1), at the last examination of the person made by the medical authority before the person's death or, where the dependants of the person are entitled to compensation payments by reason of the operation of subparagraph (ii) of paragraph (a) of subparagraph (ii) of paragraph (c) of subsection (1), in the certificate issued by the medical authority pursuant to subparagraph (ii) of the said paragraph (a), (d) where medical or related treatment or hospital treatment or occupational rehabilitation service or ambulance service becomes reasonably necessary as a result of the dust disease-the benefits prescribed by Division 3 of Part 3 of the Principal Act. All compensation payments authorised to be made under this Act shall be made from the Fund established by section 6. ... (2B) (a) This subsection applies to every award of the board made, after the commencement of Part 2 of the Workers' Compensation (Dust Diseases) Amendment Act 1967 , pursuant to subsection (1) (b) or (c) in respect of the death before or after that commencement of a person (in this subsection and in subsections (2C) and (2D) referred to as "the worker") upon whom there was dependent for support, immediately before the worker's death, the following and no other person or persons: (i) a prescribed relative of the worker, or (ii) a surviving spouse and a child or children of the worker. (b) Where the dependent person referred to in paragraph (a) (i) was wholly dependent for support on the worker and an award to which this subsection applies is made by the board under subsection (1) (b), the prescribed rates of compensation payable shall be: (i) one of the following amounts: (A) during the period of 12 months starting on the commencement of the Workers' Compensation (Dust Diseases) Amendment Act 2010 (the "first 12 months")-the amount of $268,375, or (B) during the period of 12 months (the "second 12 months") that starts at the end of the first 12 months-the amount of $291,040, or (C) after the end of the second 12 months-the amount of $311,050, and (ii) in the case of a surviving spouse-a weekly payment of $137.30 per week, to continue until the marriage or death, whichever event first occurs, of that person, and (iii) in the case of a surviving spouse and subject to paragraph (ba)-a weekly payment of $69.40 per week in respect of each child who was wholly or partly dependent on the worker for support, to continue until the death of that child. Note: For notices pursuant to sec 8 (2B) (b), see the Historical notes at the end of this Act. (ba) The payment referred to in paragraph (b) (iii) shall not be made in respect of a child who has attained, or attains, the age of 16 years unless the child is under the age of 21 years and is receiving full-time education at a school, college or university. (bb) The payment referred to in paragraph (b) (ii) is not to be made to a person during any period when the person lives with another person on a permanent and bona fide domestic basis, although not legally married to that other person. (c) Where the dependent person referred to in paragraph (a) (i) was wholly dependent for support on the worker and an award to which this subsection applies is made pursuant to subsection (1) (c), the prescribed rates of compensation payable shall be: (i) where the disablement for work from the disease was total, the compensation payments prescribed by paragraph (b), or (ii) where the disablement for work from the disease was partial, a percentage of the compensation payments prescribed by paragraph (b), such percentage being calculated in accordance with the provisions, mutatis mutandis, of subsection (2) (c) (ii). (d) Where the dependent person referred to in paragraph (a) (i) was partially dependent on the worker for support the prescribed rate of compensation payable shall be such payments, not exceeding in any case the amount that would have been payable as compensation under the award had that person been wholly dependent on the worker for support, as may be determined by the board to be reasonable and proportionate to the injury to that person. (d1) The prescribed rate of compensation payable to a dependent person under paragraph (b) (i) is to be calculated by reference to the prescribed rate in force at the time of the worker's death. (e) In subsections (2B), (2C) and (2D), a reference to a child of a worker includes a reference to a stepchild of the worker and a child to whom the worker stood in loco parentis. ..." 8It is, however, convenient to start with the question of "dependency" or "dependants". The words "dependency" or "dependants" are not statutorily defined, which counsel for the defendant (written submissions, paragraph 7) points out is a common situation in statutes using the expression, which means it is appropriate to apply common law principles in determining issues of whether dependency is established. 9Counsel for the defendant's submissions are to the effect that only common law principles need be applied to the determination of dependency. 10However, as counsel for the plaintiffs points out in written submissions, s 1(1) of the Act applies: "17. However, s 1(1) of the Act provides that it is to be construed with the Workers Compensation Act 1987 ("1987 Act") referred to as the "Principal Act". Section 2A(2) of the 1987 Act provides that it is to be construed with and as if it formed part of the Workplace Injury Management and Workers Compensation Act 1998 ("1998 Act"). 18. Section 3 of the 1998 Act contains the following: "dependants" of a worker means such of the members of the worker's family as were wholly or in part dependent for support on the worker at the time of the worker's death, or would but for the incapacity due to the injury have been so dependent, and includes: (a) a person so dependent to whom the worker stands in the place of a parent or a person so dependent who stands in the place of a parent to the worker, and (b) a divorced spouse of the worker so dependent, and (c) a person so dependent who: (i) in relation to an injury received before the commencement of Schedule 7 to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 - although not legally married to the worker, lived with the worker as the worker's husband or wife on a permanent and genuine domestic basis, or (ii) in relation to an injury received after that commencement-is the de facto partner of the worker." 11While the Act does not contain a definition of "dependence", s 1(1) of the Act provides that it is to be construed with the Workers Compensation Act 1987 (NSW) ("1987 Act") (referred to as the "Principal Act"). Section 2A(2) of the 1987 Act provides that it is to be construed with and as if it formed part of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("1998 Act"). 12Section 3 of the 1998 Act contains the following: ""dependants" of a worker means such of the members of the worker's family as were wholly or in part dependent for support on the worker at the time of the worker's death, or would but for the incapacity due to the injury have been so dependent, and includes: (a) a person so dependent to whom the worker stands in the place of a parent or a person so dependent who stands in the place of a parent to the worker, and (b) a divorced spouse of the worker so dependent, and (c) a person so dependent who: (i) in relation to an injury received before the commencement of Schedule 7 to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 -although not legally married to the worker, lived with the worker as the worker's husband or wife on a permanent and genuine domestic basis, or (ii) in relation to an injury received after that commencement-is the de facto partner of the worker." 13I shall next consider the issue of how to determine "dependency".

[3]

The nature of dependency 14Whether dependency exist is a question of fact, and often "a complex question of fact" as McHugh JA noted with approval in TNT Group 4 Pty Limited v Halioris & Anor (1987) 8 NSWLR 486 at 488G of the passage in Middleton v Kiama District Hospital [1970] 3 NSWR 136 at 138, where his Honour stated: "Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain, e.g a husband his wife... Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased." 15McHugh JA also explained at 488G and 490E: "...is concerned with actual and not theoretical support. A person claiming dependency need not be in actual receipt of support at the date of death. It is enough that, as at that date, he or she had a reasonable expectation of support in the future. Dependency may exist at the date of death although actual support can or is unlikely to occur until a future time. [at 488G] ... In my opinion all the foregoing cases on dependency are explicable on the basis of one principle. For the purposes of the Workers Compensation Act 1925, section 8, a person is dependent on a deceased worker if, at the date of death, he or she fell within one of the specified relationships and had a reasonable expectation that the deceased would provide support for him or her either at that time or in the future. [at 490E]" 16The Court of Appeal considered the issue of dependency in some detail in Ball v Newey (1988) 13 NSWLR 489. The facts in Ball v Newey are an illustration of the degree of complexity of fact finding necessary in relation to issues of dependency where the person claiming to be a dependant falls outside the usual factual regime. In Ball v Newey the plaintiff and the deceased were in a homosexual relationship. This case is a good example of the need for factual findings to reflect, in a commonsense way, changing cultural values and non-traditional family relationships. 17At the time that the deceased and the appellant in Ball v Newey entered into their homosexual relationship, controversial amendments to the law to legalise homosexuality were in train. The deceased and the respondent wanted to live together but had little capital. As the appellant's income was insufficient they pooled their income and opened a joint cheque account; neither of them would have been individually capable of meeting the mortgage outgoings from their respective incomes. It was on this basis that according to the affidavit filed by the appellant, there were "dependent upon one another to carry the mortgage on the home". 18Young J, the trial judge, concluded that "dependent meant financially dependent" and it was in this context that Samuels JA said at 490-491: "His Honour concluded that "dependent" meant financially dependent, a proposition which has not been challenged in the appeal. It may be that there are other forms of dependence analogous to but distinct from financial dependence which would be capable of satisfying the requirements of s 6(1) the definition of "eligible person", par (d)(i). In the present case, however, only financial dependence is relied on and I approach the matter on that basis. "Dependent", in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed. In determining whether that relationship exists, it is relevant to bear in mind what was said by Sankey LJ in Lee v Munro (1928) 98 LJKB 49 at 53; 21 BWCC 401 at 408, that in "deciding whether or not there is dependency the factors to be considered are past events and future probabilities". While it is true that here we are concerned with financial dependence and not emotional dependence, the whole relationship between the appellant and the deceased must be examined in the light of that statement in order to exclude situations which might present the simulacrum but not the substance of dependency." 19His Honour went on to note at 492: "Counsel then suggested, as I understood him that these circumstances produced no dependency because each of them was separately financially capable of acquiring somewhere to live, so that their decision to live together and finance their purchase jointly was, in some sense, an indulgence which the law should not countenance. I see no substance in this argument. I assume that dependency involves the total or partial satisfaction of need. But the need is not restricted to the requirements of basic necessity or sustenance; cf, in a different context certainly, the meaning of "needs" in the Liquor Act 1912 as "reasonable demands or expectations": Toohey v Taylor (1983) 1 NSW LR 743 at 749. Whether dependency, total or partial, exists is a question of fact: Aafjes v Kearney (1976) 50 ALJR 454; 8 ALR 455. It is not to be determined upon theoretical considerations. It is the "actual fact of dependence or reliance on the earnings of another for support that is the test": per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 at 189. "The standard of support is set by the parties themselves" (at 190). Hence it is irrelevant that the appellant could have provided separate living accommodation out of his own income. That was not what he and the deceased chose to do. If it is relevant, it cannot be said that what they chose to do was unreasonable; and, in order to support the mode of life they wished to pursue, each was, it is open to find, partially dependent upon the other." 20The defendant also relies upon this passage by Samuels JA at 492. 21The degree of novelty of these findings can best be seen from the concurring opinion of Mahoney JA (at 493), whose concurring opinion was with "some hestitation" because: "I was at first disposed to think that the decision of Young J was correct and I share, as I understand it to be, his Honour's surprise that the Family Provision Act 1982 (the Act) should, in relation to dependency, extend so far. But the language of s 6 is so wide that, in my opinion, the plaintiff may be within its terms." 22Mahoney JA went on to note (at 493-494): "There are, no doubt, cases in which the assumption of obligations of this kind will not result in a dependency for the purposes of s 6(1), par (d) of the definition of "eligible person". A joint mortgage obligation in relation to, for example, a speculative business venture may be in such a category: that is not a matter on which I express any opinion. But in this case it would be open to a judge of fact to find that the plaintiff was dependent on the deceased at the time of his death. Reference was made in argument to cases in which, for example, the claim to dependency arises because the parties have acquired together accommodation which is residential in nature but which is of a value and requires outgoings far beyond what might be expected of the residential accommodation ordinarily available to the parties. And it is possible to imagine cases in which, apart from the context of residential accommodation used by the parties, joint obligations had been entered into in which one party, in the broad sense, depended upon the financial assistance of the other. These are not cases which, in the context of the present facts, require consideration." 23The separate judgment of Mahoney JA is insightful in that his Honour frankly acknowledges that he initially shared the view of Young J, who had considered the situation of the parties to a homosexual relationship as living in much the same factual circumstances as, for example, tenants residing in the same rented accommodation. In addition, Mahoney JA foresees a situation such as the present one, where the claim to dependency arises because the parties had acquired to get accommodation which was residential in nature but which was of a value and required outgoings far beyond what might be expected of the residential accommodation ordinarily available to the parties, and where joint obligations had been entered into, which were, in the broad sense, dependent upon the financial assistance of the other. 24In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 per Hope JA, the court confirmed the correctness of the approach by Samuels JA in Ball v Newey: "I would respectfully disagree with the Master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon one another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning... This accords with what Samuels JA said in Ball v Newey (1988) 13 NSW LR 48 at 491, that "dependent" in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed'." 25Three more decisions of the Court of Appeal are of relevance. The first of these is So v So [2004] NSWCA 67, where Santow JA said at [9]: "It is significant that the original form of that legislation focused on whether a dependant was wholly dependent upon the deceased's earnings at the time of his death. Thus s 8(2) of the Workers Compensation Act 1926 referred to a deceased worker who " ... does not leave any dependants wholly dependent upon his earnings, but leaves dependants in part dependent upon his earnings". The change in wording from "earnings" to "support" occurred in amendments in 1965. That legislation also incorporated into the section a wider test of dependency; Warilla Timber & Hardware Pty Ltd v Newton (1995) 11 NSWCCR 546 at 554 per Kirby P" 26Santow JA at [20] went on to characterise as erroneous a test of dependency where the focus was simply on a calculation of relative financial contribution as opposed to looking at other relevant considerations: "[20] Turning to the present case, as the transcript makes clear (Black, 21 and 25) counsel then appearing for the applicant pressed, so far as he was allowed to, that here was a situation where the applicant was wholly dependent upon her deceased mother for support no less than on the father. He briefly cited the decisions to which earlier reference has been made. The trial judge, with respect, appears to have instead applied an erroneous test of dependency in which the focus, as his reasoning indicates, was simply on a calculation of relative contribution. Indeed even that analysis points to a substantial contribution by the mother of a kind which the appellant in her less than affluent circumstances must have found essential for her support, no less than that which she enjoyed from her father." 27Other relevant considerations may include not only earning but other forms of dependency, such as the activities or services of a person around the house: Warilla Timber & Hardware Pty Ltd v Newton (1995) 11 NSWCCR 546. 28A case of particular relevance to the present is Amaca Pty Ltd v Novek [2009] NSWCA 50, where the Court considers "dependency" in relation to a claim for damages brought under s 15B Civil Liability Act 2002 (NSW) for the loss of a grandmother's ability to provide care and services to her children and grandchildren. This grandmother, Mrs Dawson, contracted mesothelioma, from which she subsequently died. Prior to her death, she had been living with her daughter and son-in-law, who were both working, and she had provided childcare services in respect to her grandchildren. Campbell JA held at [35]-[37]: "[35] Further, in Aafjes at 202-203 Barwick CJ approved a statement of Lord Haldane in Potts v Niddrie & Benhar Coal Co Ltd [1913] AC 531 at 536-538, which included a statement that the question of whether one person is dependent on another: ... is always primarily one of fact, on which the conclusion of the arbitrator ought only to be set aside, if it is apparent that there was no evidence to support it, or if error in law appears on the face of it. [36] In Aafjes at 210, Mason J (with whom Stephen J agreed) quoted with approval the statement of Lord Shaw of Dunfermline in Hodgson v West Stanley Colliery [1910] AC 229 at 239 that "not only whether dependency exists but whether it is whole or is partial are questions of fact". Mason J went on to say, at 212 (quoting from Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 at 189 per Gibbs J) that, "the question of dependency is governed by factual and not by theoretical considerations." When dependency of B on A is a question of fact, it cannot be the case that it necessarily does not exist when someone else has an obligation to care for and support B. [37] As well, the statutory provision being construed in Aafjes was relevantly different from the statutory provision involved in the present case. The expression in s 8(1) Workers' Compensation Act 1926 was "wholly dependent for support". By contrast, the relevant expression in the present case is "persons as are wholly or partly dependent on the claimant". Mason J noted, at 211 that: ... there is much to be said for the view that in s 8(1) the association of the words 'wholly dependent' with the words 'for support' makes it even more apparent that the existence of a legal obligation to support is an important factor to be taken into account in the application of the section." 29Campbell JA went on to say at [39]-[40]: "[39] Samuels JA also said, at 492: Whether dependency, total or partial, exists is a question of fact: Aafjes v Kearney (1976) 50 ALJR 454; 8 ALR 455. It is not to be determined upon theoretical considerations. It is "the actual fact of dependence or reliance on the earnings of another for support that is the test": per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 at 189. "The standard of support is set by the parties themselves" (at 190). Hence it is irrelevant that the appellant could have provided separate living accommodation out of his own income. That was not what he and the deceased chose to do. If it is relevant, it cannot be said that what they did choose to do was unreasonable; and, in order to support the mode of life they wished to pursue, each was, it is open to find, partially dependent upon the other. Similarly here, in deciding whether a relationship of dependency in fact existed between Mrs Dawson and the grandchildren it is irrelevant that the Respondent and Neale could have chosen to have one or other of them stay at home to care for the children. [40] In Petrohilos v Hunter (1991) 25 NSWLR 343 this court resolved the question that had been left open in Ball v Newey whether the fact that A fulfilled certain non-financial needs of B, but provided no financial support, could be sufficient to make B wholly or partly dependent on A. The answer was in the affirmative. Hope AJA (with whom Clarke and Sheller JJA agreed) said, at 346: The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependence is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance, young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of language. Thus, the fact that Mrs Dawson provided no financial support to her grandchildren is not necessarily enough to show that they were not her dependants." 30Campbell JA warned against focussing on financial dependence at [41], endorsing the comments of the Court of Appeal in Petrohilos v Hunter (1991) 25 NSWLR 343 at 346, as follows: "[41] The finding in Petrohilos was that the plaintiff in that case had been dependent upon her stepmother, in circumstances where as a child the plaintiff had lived with her father and stepmother. The stepmother had no assets or income of any significance, but the stepmother "did all those things for the plaintiff that a mother in her circumstances does for a daughter from the age of five to the age of eighteen." That case illustrates how a relationship of dependency can exist even when there is not the sort of obligation that a mother has to care for her own child." 31Finally, courts should acknowledge and give appropriate context to cultural factors, as such expectations of obligations arising from the cultural factors which form part of the lifestyle of the parties in question, because these may be relevant to the findings of fact to be made in relation to issues such as dependency and the fulfilment of obligations. The Court of Appeal has explained the reasons for exercising caution in relation to cultural factors in Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187. I have given only limited weight to these factors. I have, however, been careful not to make unconscious assumptions based on a culture where the nuclear family, rather than three generations living under one roof, is the more common situation.

[4]

The evidence relied upon by the plaintiffs 32The evidence relied upon by the plaintiffs in relation to their claim of dependency upon the deceased comes from the following: (e) The documents contained in Exhibit A; (f)The evidence of the first plaintiff and her husband Thomas Kuenze; (g)Documents contained in representations made by and to the deceased. 33It is convenient to start with a history of the family structure of this very close knit family. 34The deceased, who was born in Prague, Czechoslovakia of Germany background worked in Czechoslovakia as an apprentice mechanic/mechanist between 1949 and 1951, following which he migrated to Australia. After migrating to Australia, he worked as a general labourer on contract to the Federal Government between 1952 to 1954, and for W.D. & H.O. Wills between 1954 and 1967. From 1967 to 1993 he worked for the Electricity Commission of New South Wales. As an assistant fireman, he was often in the presence of asbestosis insulation, which was used extensively throughout Bunnerong Power Station. He was then transferred to Pyrmont Power Station, where he continued to be exposed to asbestosis from walking around plant and machinery insulated with asbestosis material, and around workers handling asbestosis products (Exhibit A, page 22). 35The deceased married and started a family. For a long period of time, the deceased's mother-in-law, Ida Nemett (T 11), lived with them. Mrs Nemett is still alive and is currently 101 years of age, but she now lives in a nursing home by reason of her increasing frailty. The relationship that the deceased had with his mother-in-law, which included having her live in his house, was repeated in his relationship with the first plaintiff, and has much to do with the strong cultural links and background of both the first plaintiff and the deceased. 36The first plaintiff said at T 12: "Q. How would you compare your relationship with your father to say your sister's relationship with your father? A. Quite put simply, I lived at home all my life and I had no intention, bar from marrying, although a year later I still didn't move out, I've always been with my mum and dad, I just wanted to be with them and they wanted to be with me, we enjoyed each other's company, there was no reason for us to be apart. Q. When you were, after your marriage, what were the living arrangements, directly after you got married? A. Thomas moved in to my bedroom with me, with mum and dad, and we stayed living as a family unit, extended family with now Thomas, my grandmother, my mum and dad, and myself. Q. Did you pay board or rent? A. No, I've never paid board to my parents. Q. Who looked after the buying of the food, the groceries, all of that, all those types of, at that time? A. My mum and dad. Q. Did you make a contribution towards that? A. Not usually, every now and then I'd buy mum flowers or something like that, just to show my appreciation but no, no financial." 37As this evidence shows, the relationship the first plaintiff had with her father was not only culturally based, but based upon the strong filial bond between them. 38At the time the first plaintiff came to know her future husband, she was living at home. She continued to live in the same home as the deceased and her mother, following her marriage. The first plaintiff said at T 12: "Q. That arrangement where you and Thomas were living with your parents, how long did that go on for? A. So from the time Thomas arrived, 4 August 2002, up until the time he was offered a position in Brisbane which would have been April, May 03." 39However, the first plaintiff did not go with him. She remained living at home with her mother and father (T 13): "Q. How long was he living in Brisbane and you were living in Sydney? A. In November 03 we purchased our first house together at Keperra and even at that time, I still lived with mum and dad so it wasn't until 8 October 2004 when I moved up, when I secured a position in Brisbane and moved to Brisbane." 40The house at Keperra, which was purchased by the first plaintiff and her husband for their own occupancy was as follows: "Q. The house at Keperra, can you just describe to her Honour what the house was like? A. Sure, it was on about 700 metre squared, it was an old 1950s worker's cottage, probably about 100 metres squared in size, had three bedrooms, one bathroom, one living area and an eat in kitchen. Q. Before you moved into that house, was any work done to it? A. No, no, not before we moved in. Before I moved in, yes, sorry, Thomas was trying to paint the inside and doing whatever I, I advised him to do during my fortnightly visits. Q. When did you move into the Keperra house permanently? A. On 8 October 2004." 41The first plaintiff's relationship with the deceased and her mother after she and her husband had purchased their first home was as follows: "Q. Then did things change, a certain time after that in terms of your living arrangements? A. Yes they did. So obviously Thomas and I were living in Brisbane, we'd kept in close contact with my mum and dad, sending videotapes, mum continued doing for me what she always had which was tape Days Of Our Lives, and send me up the tapes, so we just kept that same uniqueness without the physical contact that we had, all the telephone conversations, and I'd go back and visit. Q. Would your father and mother ever come up to Brisbane to visit in that period? A. Unfortunately not, they didn't have the opportunity; they were caring for my grandmother, as I said about that time she was about 97 years old, her husband had passed away 15 years prior, so she was very dependent on my parents to be there to assist her. Q. When was Christian born? A. He was born on 18 June 2006. Q. Did you work right up until shortly before Christian was born or what was the position? A. Yes I did. I worked up to the last week before Christian was born and he came a little early. Q. Did you have some time off work after Christian was born? A. Yes I did, because I didn't have any support I was at home with Christian on maternity leave for about 11 and a half months. Q. In that period did you go back to Sydney with Christian? A. Yes I did. Q. Did your father have any contact with Christian in that period? A. Yes he did. Q. What was that contact? A. Well I drove back to Sydney when Christian was about four months old and we organised his baptism during that time, I also flew down with Christian a few times. Dad would just take him and go which was a godsend for me, so he would just always nurse him and walk him and give him his bottles and take care of him for me. Q. Do you have any, at that time, did you have any family in Brisbane? A. No I don't have any or nor did I then. Q. When you went back to work, did you go back to work fulltime or part time or what was the arrangement? A. I went back to work fulltime. Q. What does that mean, were you at work every day? A. Yep, five days a week, a 40 hour week. Q. What time did you start? A. I tried to start somewhere in the vicinity of 7.30 to 8 o'clock which meant Christian would have to be dropped off about 7 o'clock in the morning to daycare and I finished work somewhere in the vicinity of 4.30 to five which meant that Christian would be picked up somewhere in the vicinity of 5.30 to 6pm of an evening. Q. So when you went back to work fulltime, is it the case that Christian was in childcare five days a week? A. Correct. Q. Would you always do the drop off and the pick up or would Thomas do that sometimes? A. Because Thomas's new role now entailed with an amount of travelling, going away for different shows and what not, it was predominantly, the caring responsibility on me, that Thomas would assist, so we would just flag who was available at the time but predominantly it was me." (T 13-15) 42Prior to the second plaintiff's birth, the first plaintiff had discussions with her parents about their living arrangements as follows: "Q. In this period prior to Christian's birth, did you ever have any discussions with your parents about their living arrangements? A. Absolutely, as is the case, I guess, we expect the oldest person to die first or that was the expectation in our family. My grandmother had lived good long years being 97 and it was always the estimation that she would be the first to pass at which point mum and dad felt somewhat free and able to come and live with us. Our aim was to live together as a family under one house, under one roof, and we would share a life together just as we had done for 37 years of my life prior." (T 15) 43An important part of this discussion was the German/Czechoslovakian background of the first plaintiff, her parents and her husband, who was also German: "Q. Did that have any influence on the way you behaved as a family and the way you structured your family? A. Obviously I was born and raised here. Obviously a lot of, I believe, European values were instilled into us in terms of respect and support of one another. My dad would very often say, and all of us would hear, that his family was his treasure and he was there to provide the support and the comfort for us. That was a pivotal part of my growing up. I knew that it wasn't so much posing a question to my parents, if I wanted anything, but asking for help and it was there for me." (T 15) 44On 13 July 2008 the first plaintiff's mother died suddenly. The first plaintiff described what happened as follows: "A. Yep. I went to Sydney straight away, Christian was just turned 2, I left Thomas at home with Christian to go and be with my dad, went to the family home, I lived there for over two weeks, I arranged all the funeral and the autopsy and everything else that had to be required so my dad didn't have to go through that and my grandmother, meanwhile, I realised that she wasn't well and I organised for an ambulance because it was deemed that she had vascular dementia and she could no longer live in the house unsupervised so I took care of all of the affairs and then unfortunately, after about two and a half week mark, I had to return to my job. Q. When you returned to your job in Brisbane, was your grandmother, did you leave your grandmother living in the house or had you already made the arrangements? A. No, no, probably within a day or two of me arriving in Sydney I realised that there was something seriously wrong with my grandmother and it would have been midnight on one day that I called the ambulance and they took her to Liverpool for an ACAT assessment and at that ACAT assessment it was deemed that she had vascular dementia and she wouldn't be able to return home so then I or dad and I organised interviews with various retirement housing retirement village places until we found the optimum one, which was St Hedwig because it's got a German heritage and my grandmother is German." (T 15-16) 45The first plaintiff told the court that her grandmother had some difficulties in speaking English and tended to speak a combination of English and German. Following the sudden death of the deceased's wife and the new living arrangements for his mother-in-law, he had discussions with the first plaintiff as follows: "A. It was obviously a very tense, unexpected time. Practically is one thing that dad and I always have in common, it's get the job done. We have a saying, honour the dead and respect the living so we had to organise things for my grandmother. It wasn't really a time for us to be able to show emotion or talk about emotion or what plans. We have to organise a funeral, wait for the results of the autopsy and see that my grandmother was taken care of. Q. You said you went back to Brisbane? A. Yes. Q. You went back to your job? A. Yes. Q. What was the position in relation to your contact with your father after that? A. Numerous phone calls a day, five to ten on some occasions. Ring up, make sure he is okay, what is happening, how he is going, anything I can do for him. Q. Did you have at that point or any later point any discussions with your father about his living arrangements? A. Yes, we did. Q. What were they? A. Dad was living at home with two dogs that he had raised with mum and dad decided that he wanted to live the dream that we had all spoken of, which was that he would come up and live in Brisbane, we would buy one house together, live under the same roof and dad will come and help us and provide care and support. Q. When you say care and support what do you mean by care and support? A. Looking after Christian. Dad knew that he was a handful. Dad knew that Thomas and I worked fulltime jobs and he wanted to be a provider for Christian, just as he was when we were children. Q. Did you come to some kind of agreement in relation to those issues? A. Yeah, absolutely. He knew of the situation that Christian was in day care for five days a week so we wanted to reduce that. Dad believed he would be able to teach him the woodworking and the other life skills more so than what a day care could provide so we were going to reduce day care down to two to three days maximum so Christian could get some social skills. Q. Who was to look after Christian? A. My dad. Q. This agreement or arrangement that you just described what steps were taken after that in order to put that in place? A. Very shortly after that it because a pivotal point. Dad received a real estate care in his letterbox which he saw as a omen. He contacted the real estate agent Q. When was that? A. August, September. Q. 2008? A. Yes. Yes. Q. Sorry, continue. A. So he received a real estate card. He had a bond with the real estate agent and felt comfortable selling his family home with this gentleman. They then determined a strategy and timing of when the auction would occur and dad set about just decluttering and neatening up the home before that took place. Q. Did he eventually sell his home? A. Yes, he did. Dad sold at auction. I flew down to Sydney to be at the auction with him for support and that occurred some time in I think it was kind of February, March of 2009 and the house sold at that time. Q. When his house was on the market did he and you have any contact in relation to finding properties in Brisbane? A. Yes, we did. Initially Thomas, Christian and I would go around and videotape properties and the drive and the local area so dad could a feel because he had not been to Brisbane before and we would send him those videotapes and talk on the phone about what we found and what we thought of the property, if it was suitable for our family. Then in about August sorry, December 08 dad came up to Sydney for a week and we drove around together. We had the real estate book about ten or so properties to look and we went around as a family and just looked at these properties for suitability. Q. I think you said, ":Sydney" in your answer, you meant Brisbane? A. Sorry. I am sorry, Brisbane, yes. Q. Did you select a property in that period when he was in Brisbane in December? A. There were a couple that he and I were mostly interested in. Unfortunately they sold prior to the time that we required. Q. Did you eventually find a property? A. Yes, I did. I found 8 Housewood Court, Highvale. When I found it I went and looked at it by myself and I said this is the one. I took photos for my dad and quickly shipped them up to him. He had a look, said it was gorgeous. It had the mountain views which he desired. He'd grown up in Czechoslovakia in mountain area and he said it felt like coming home to him. Q. When was that house purchased? A. It settled in about 21 to 26 April 2009. Q. Prior to that had you made any arrangements with your father in relation to securing the funds to purchase the house? A. Yes, the house that we were looking at because of the size and nature of my house at Keperra was not going to be suitable for all of us to live in so we had to secure a house where it was large enough for us to function and it was in the vicinity of approximately 800,000. My dad's house was due to sell somewhere in the $400,000 mark and then myself, my father and Thomas secured a loan with ING for 360,000 for the remainder of the house." (T 16-18) 46The first plaintiff described her father's contribution as follows: "Q. In relation to the purchase of the property what contribution did your father make? A. The property. Q. The property at Highvale? A. The Highvale, yep. Sorry, are you talking about the cost of the house? Q. Yes, the cost of the house? A. Yep, so when my dad's house sold he put in $400,000 for that house and he paid for stamp duty which was in the vicinity of $20,000." (T 18) 47The first plaintiff and her husband had the following discussion with the deceased about household expenditure: "A. My dad, being the provider as he always had, we had agreed that any of the utilities such as phone, electricity, rates, anything to support the home would be 50/50 and also in terms of anything maintenance or goes wrong with the house. During dad's lifetime he bought the lawnmower, whipper snipper, we had to declog the biolytic system so dad had his hand in the pocket for those expenses. Q. Was your father a handyman type person? A. He liked to be. Q. Who was to do the lawn mowing and all of those things that were necessary? A. That would be my dad. As soon as he moved up I think he grabbed the hand mower to mow an acre even though we had a ride on but my dad liked mowing and keeping a neat garden, pottering in the garden. He was very proud of his Dyson vacuum cleaner which he brought up with him and he was vacuuming and cleaning he house whilst Thomas and I were at work fulltime." (T 19) 48The deceased moved to Brisbane in April 2009. The sale of his house has settled, so he moved to live with the first plaintiff, her husband and the second plaintiff for several weeks until the sale of their home settled. During this time, the first plaintiff described her routine as "hectic": "A. It was very hectic for Thomas and I. We were due to move out of that home. As I said it was a very old worker's cottage. It had flaky paint and little bits and pieces falling off so Thomas and I spent intense hours working and renovating on that house, doing things such as painting inside and out, doing the landscaping. During that time I did not think it was good and nor did my dad of having Christian running around SHELLER: I object, your Honour. TZOUGANATOS Q. Who looked after Christian in that two week period when you and Thomas A. My father. Q. What type of things did he do for Christian in that period? A. Took him to the park, fed him, took him to McDonalds, took him in the car, just generally kept him away from us during that time. Q. Who bathed Christian in that period? A. My father. Q. Who changed his clothes and dressed him in that period? A. My father. Q. Who prepared his meals and fed him in that period? A. My father. Q. Could you just estimate for us, if you could, in that two week period how many hours per week your father spent looking after Christian? A. If you say the waking hours of a child that age are probably 10 and 14 sleeping, eight of the ten daily. Q. Are you saying eight hours a day? A. Yep." (T 19-20) 49The sale of the house settled on 21 April. The first plaintiff "moved dad and the dogs" to the new premises and days later she, her husband and the second plaintiff moved into the new property. She described the arrangements made for the second plaintiff's care at this time as follows: "A. We had just moved to Highvale. Obviously it was a big move and change for all of us. I was trying to get Christian into another day care during that time, something closer to home for him. We were discussing about changing the arrangements to two to three days a week and for dad to look after Christian for the rest. So obviously we were moving, unpacking boxes, a whole tonne of stuff happening and then we were making those arrangements. Q. Were you working fulltime in that period? A. Yes, I always worked fulltime. Q. What about Thomas? A. The same, always works fulltime. Q. Where was Christian during the weekdays? A. In day care. Q. Who dropped him off in the morning and who picked him up in the afternoon? A. I believe at that stage it probably would have been a combination of Thomas and myself. I know there were occasions that I took dad to the day care just so he could learn the ropes, it's a little bit special when you have to sign in and out a child and what the basis is and what they need to do. Q. Did you arrange for your father to get authorisation of the child care to pick him up and drop him off? A. We were in the throws of that, yes. Q. From when you moved into Highvale did your father continue to provide care to Christian? A. Yes. Q. What type of things did he do? A. It's usually quite hectic in our house in the morning, getting two adults out and ready, so dad would take care of Christina, feed him breakfast, get him dressed so I could get him into the car and take him to day care so I would be on time for work. Q. Could you estimate for her Honour how many hours a day of care that your father provided from when you moved into the property at Highvale to Christian? A. He was an early riser, say approximately two in the morning, two at night. Q. What about on weekends, did your father provide Christian with any care or supervision on the weekends? A. Yeah, absolutely. During that time I was studying for a diploma and I think also during that time Thomas had some caravan and camping shows so he was away from the house so dad would take care of Christian which enabled me to get on with my diploma and Thomas was absent from home because he was at the caravan shows. Q. Could you estimate for us, on the weekends, on an average, how many hours of care had your father provided for Christian? A. Again, we'll go waking hours, so about ten for a child that age probably seven to eight." (T 20-21) 50The first indication that the deceased had the disease, which would soon kill him, occurred on 14 July 2009. The first plaintiff wanted her father to accompany her to the Samford Show, which had many activities for children but the deceased said he did not feel well enough. She said he was holding his chest and when she said, "What's wrong" he replied, "It feels like my lung has collapsed" (T 22). 51She described what occurred next as follows: "A. Sure. Interestingly enough we had I believe they were Xrays, or ultrasounds one or the other, performed. The first result came back and said, you know, "Not sure what this is due to. Further examination is required." Then organised for further testing; I was at work; dad received a phone call, and said, "Have you ever worked with asbestos?" and my dad said, "Yeah" and then he phoned me, and I cried, and I went home straight away. And we made provisions to visit, I think it was called, Dr Hunlow(?) in Redcliffe; he was a specialist in those matters. Q. He's a lung specialist, isn't he? A. Yeah, that's correct and I went with dad to Mr Hunlow, and he said that we'd need to get a biopsy in order to confirm it, but his belief was that dad would have mesothelioma and that it was a death sentence. Q. Did your father have surgery in September 2009 by way of a biopsy and a thoracotomy? A. If that means they put a talcum powder type substance into the lung to seal it and drain it, yes, that's correct." (T 22) 52The first plaintiff described the situation from that moment until her father died on 27 February 2010 as follows: "Q. From 14 July 2009 until your father passes away in January 2010 was he able to look after Christian in the way that he had before that time? A. No, the interactions lessened, although my dad did take Christian for rides on his walking frame, which Christian appreciated. My Dad did the best he could with what he was coping with. Q. I just want to change topics, Mrs Kuenzel. You told us earlier that the arrangements in relation to the upkeep of the house, and the purchase of household items the cost was split 50/50 between yourself and your father? A. Huh hum. Q. Did your father make any financial, or cash, contribution to you, or Christian? A. Yes, he did. My dad started paying us $500 a fortnight which was always welcome. ... Q. What did you understand was the purpose of your father giving you that money? A. It had no strings attached. It was "Here ya go little mumma; he's $500". My dad had the same methodology with my mum; it was ingrained; my dad would go to the bank every fortnight; withdraw $1,000; give my mum $500; when he came to live with me he gave me $500. I could do with it as I pleased, and what I did with it was occasionally put some money on the mortgage; paid for Christian's daycare; bought shoes whatever I needed to do with the funds. Q. Did you father, over and about that money that you just spoke about, buy other things for the household? A. Always. He bought the lawnmower which was $1,000 when our lawnmower died; a blower obviously being a bigger property and a bigger house we needed more stuff that we didn't have, or bring into the house when we moved, so my dad happily, willingly, purchased those items. Q. What about food? Did he buy food? A. Yeah, dad and I didn't tend to eat the same, so dad would find himself down at the Woolies, and he'd purchase veal snitzels or whatever he wanted to buy. I'm not a meat eater. So dad would often go shopping; purchase extra items that he wanted. Q. When your father was still alive was there any renovation work done to the Highvale property? A. Yeah. We had big plans for that. Obviously when you move into a house that isn't new, you want to tailor it to your likes, and what you agreed. When we moved in we knew that there were some things absent from the house that as a family we wanted, so we made arrangements for those to be done, and we had a schedule for those to occur. The first we kicked off with was a shed which went in a couple of months after settlement. Up in the pool area it was a grassed area and we wanted to change that to paving so we organised for someone to come in and that was conducted in about November 09. And we had some other plans for some airconditioning because it was limited in the house and it got very hot." (T 23-24) 53The first plaintiff was unsure who paid for council approval of the shed but said that to the best of her knowledge it was paid 50/50. As is set out in more detail below, this was incorrect. 54Modification was also made to the home in relation to the deceased's comfort. At T 25-26 the first plaintiff gave evidence as follows: "Q. You were about to say something about the airconditioning? A. Yeah. As said we had progressive things that we wanted to get done. The airconditioning dad was concerned it was only in the lounge room; Christian's bedroom, and his. He was concerned for Thomas and I and the other parts of the area, so he wanted it air conditioned so that we'd all feel comfort. The flooring was carpeted; we had dogs four dogs, so dad wanted that changed over from carpeting which was hard to keep clean to a wooden floor. Q. Who paid for the air conditioning, and the carpeting? A. Thomas and I did, because it was post dad's life. Q. But for your father's death, what did you expect would happen in relation to payment for those? A. That dad would have paid half. Q. What was the cost of the air conditioning installation? A. To the best of my knowledge around the $25,000 mark. Q. What was the cost of the carpeting? A. To the best of my knowledge around $12,000 mark. Q. Did you have some work done in relation to the bathroom? A. Yes, that's correct. On the when a builder comes out and gives you building acknowledgement before you purchase a house, it was deemed that our bathrooms had a leak in the wall so we had to get somebody in to seal that area, and that was done at a cost of approximately $1,000. Q. When was that done? A. Post my dad's death due to the fact that I didn't want builders or people coming through while dad was sick. Q. Who did you expect to pay for that but for your father's death? A. My dad would have paid either the whole thing, or half. Q. Did you have some work done in relation to the garden area? A. Yeah, we were required to put some mulch in as that it's an acre. It does get quite weedy area, so we purchased some mulch and laid that down. Q. How much did that cost? A. Approximately $1,000. Q. Who paid that? A. I did. It was post my father's death. Q. What was your expectation in relation to who would pay for that if your father was still alive? A. Based on past experience and what occurred during our life, dad would have either paid for all, or half. Q. Are there any other improvements that you had planned for the Highvale property? A. Yes, dad was very much for being environmentally friendly, so we were looking at getting some kind of solar device we have currently got electric hot water; dad was always very much into solar, and in actual fact on the day that my dad made the determination it was time to go to hospital, I had already arranged for a solar gentleman to come out and give us a quote. Q. Have you installed that? A. No, I haven't. Q. Have you got a quote for it? A. I probably had that quote that may have been done on that day still, yeah. Q. Can you remember what the amount was? A. $3,500 $5,000 somewhere in that vicinity." 55The position in relation to the care of the second plaintiff is as follows: "Q. Since your father's death, what has been the position in relation to Christian's care? A. Christian commenced school at four and a half, so that would have been January 11, so he commenced school in a private school Prince of Peace in Queensland. Because of our working arrangement, Christian goes to before and after school care five days a week, and has a permanent booking. Q. How much do you pay for before and after school care? A. It's $127.50 per week. Q. But for your father's death, would Christian have been in before and after school care? A. No, he would not. Q. Why not? A. Because dad wanted to, and was going to, drive Christian to school and pick him up in the afternoon. Q. Are you still working fulltime? A. Yes, I am. Q. After your father's death, did you change your working arrangements in any way? A. Yes, I did. Q. What was the change, and why? A. I changed from a ten day fortnight to a nine day fortnight as I needed to be there for Christian some of those days were used to accumulate to have off with him such as holidays. At school they get a lot of holidays, and we didn't want to leave him in a vacation care, so Thomas and I take separate holidays in order to look after Christian during his breaks. Q. Have those arrangements affected your earnings? A. Yes they have. Q. How? A. The ten day fortnight down to a nine day fortnight costs about 12 or $13,000. Additionally, we have this thing called purchase leave so I also purchased an additional month of leave which is approximately $7,000. The purpose of that again is to Christian gets breaks every term at about two weeks and then a long eight to ten week one so we wanted to cover as much of Christian's holidays as possible so he didn't have to go to vacation care. Q. But for your father's death, what did you expect would be the arrangement in relation to school holiday periods for Christian's care? A. Dad would be at home with him, they would be enjoying the Highvale property, swimming in the pool, playing on the swings." (T 26-27) 56The first plaintiff was extensively cross-examined about these matters and made a number of concessions as to who had paid for items. This is discussed in more detail in the section below where I deal with all the evidence adduced on behalf of the plaintiff.

[5]

The evidence of the first plaintiff's husband 57The evidence of the first plaintiff's husband was as follows. Mr Kuenzel described how he came to Australia in 2002 and lived with the first plaintiff in the home owned by the deceased and his wife, the first plaintiff's mother (T 83-85) He described the deceased as "definitely a major family man" (T 86). He said that while he lived in the house "it was always discussed that okay once Oma leaves or passes on or however you want it say it then, yes, let's all move together, let's all move in together" (T 86). He described the arrangements in relation to the deceased's move to Brisbane after the death of the first plaintiff's mother: "Q. After that time, are you aware of any discussions that you, or Rhonda, may have had with your fatherinlaw in relation to his living arrangements? A. Yes, absolutely. I mean, we were still going to pursue the whole living arrangement other than all living together because, you know, there was really nothing that kept in Sydney anymore and I think he was also quite happy to get out of the house because there were a lot of memories there. So I believe that I know for a fact, that, you know, there were discussions and we all wanted to we brought it to him and asked him and asked him, "Would you like your own house?" There was a house for sale in the neighbourhood where we used to live in Keperra, and we asked him, you know, "Would that be something that you want to do?" and he said, "No, I want to really live with you in one place." Q. At that time, did any of those discussions include any discussions about Christian's care? A. My fatherinlaw he had a very close relationship to his grandson because, you know, it's it's maybe, of the son he never had, I don't know, that's probably a little bit too much, but he was very fond of him, and he was actually looking forward to taking care of him, and you know help us with because he knew that we were struggling a bit with the work that we had, and so, yes, he was absolutely wanted to be involved in that. Q. Was there any specific arrangement in place in relation to your fatherinlaw's role in Christian's care? A. Well yes, well, as I mentioned before, he was in daycare five times a week and we were looking at reducing that to at least we were looking at reducing that to three to two days into daycare. We didn't want to take him out all the way because, you know, we still wanted to have some sort of relationship with younger kids, but yeah, at least two days was what we were looking at. Q. What would happen on the days when he wasn't in daycare? Who would look after him? A. When he was not at daycare? Then my fatherinlaw would look after him he would basically take over the daycare. We would still be working, obviously." (T 87-88) 58He described how he and the first plaintiff took the deceased around to look at houses. He also described the house in which he and the first plaintiff were living: "It was an old postwar cottage, and so we always were working on it on some shape or form, so it was good to have my fatherinlaw there just to take Christian off us for a couple of hours" (T 88 line 28-30) 59Mr Kuenzel also described the kind of care the deceased provided to the second plaintiff: "Q. What type of things did he do for Christian? A. He would take him, you know, to the local playground. He would take him, you know, buy him I don't know, some McDonalds, or what have you, and you know, take him shopping with him if he was going out, you know, just Q. What about in terms of bathing, and things like this? A. Oh yeah. He would help with that as well, you know, getting him dressed in the morning, or you know, supervising his bath; time at night, and so forth, absolutely." (T 88) 60This evidence is important because it demonstrates not simply the children care arrangements which were already put in place, but also the reliance upon the deceased at this time. 61Mr Kuenzel said that the arrangement was for payment by the deceased of half the household expenses in the form of utilities on the basis that it was "both our house, 50/50 so everybody pays half, that's what we agreed on" (T 89). 62He said that the deceased did the lawn mowing, cleaning and maintenance (T 90) and that if he had not, suddenly without warning, developed the illness that would kill him, that state of affairs would have continued. He described how after they moved into the property at Highvale the second plaintiff continued in day care because the family were just settling in: "Q. You said, would have given it a couple of months, what do you mean by that? A. Well I'd say, probably say you know one or two months to just have everything fall into place, you know, develop a routine, because remember it's a new house, it's a four people living together that haven't really, in that group, lived together. Q. What did you expect would happen after that settling in period? A. After that, I'm sure look he was one of the first people that would want to help so he would have done the garden, he loved gardening, he did it all in his on his place in Cabramatta. He would have looked after Christian, those two or three days out of the week, and he would have probably done quite some a lot of the housework because, you know, he was at home and he loved to be involved, you know, that's what he wanted." (T 90) 63Mr Kuenzel also said that in addition to paying part of the utility he saw the deceased give the first plaintiff $500 in cash every fortnight (T 91) which was used for such items as day care fees, insurance and petrol. He said that the deceased purchased items for himself such as food that he liked ("weird dishes" that were Czechoslovakian specialties). 64The new premises required some work, notably the putting up of a shed. He said that the deceased did not pay for these "because this was about the time when he was starting to get sick and we really didn't want to ask for it, you know. You know, it felt wrong" (T 94).

[6]

The evidence of the deceased 65Prior to his death the deceased commenced proceedings for damages against his employer in the Dust Diseases Tribunal of New South Wales. The proceedings were ultimately resolved. However, as part of that case on 22 October 2009 the deceased executed a Statement of Particulars which set out some of the details of his exposure to asbestos, his symptoms and personal circumstances. Commencing on page 30 of Exhibit A the deceased said the following: "I have always been very active around the home and I always made sure that the basic tasks around the home were regularly performed and done properly. These included gardening, mowing the lawn and general home maintenance. I am a bit of a handyman and I was virtually always able to make renovations to my home when I was feeling healthy. I installed timber panelling in the ceilings and walls and also completed a small project on my veranda which involved the installation of fibreglass. These are just some examples of the work that I carried out at home. My biggest treasure has always been my family. I have always felt that caring for my family is my paramount priority and responsibility... I currently live with one of my daughters, Rhonda. I moved up to Queensland in April this year to live with my daughter Rhonda and her husband, Thomas, and son, Cristian. I very much looked forward to living in the Brisbane area with Rhonda and her family. We live on a large block of land and there is beautiful scenery and mountains around us. I have 3 other daughters but they do not live with me...." 66At Exhibit A page 37, the deceased said that he had "been very much looking forward to spending years together with Rhonda and her family and enjoying life in Queensland for many years". 67At page 39 of Exhibit A, the deceased said: "I moved to Queensland in April 2009 to be with my daughter, Rhonda, and her family. When I came to Queensland I was probably suffering the first symptoms of mesothelioma being some shortness of breath. However, at that stage I was still able to look after myself and in fact I was providing care and assistance to my grandson, Cristian." 68At page 41 of Exhibit A, the deceased stated: "Prior to Rhonda moving to Brisbane we had decided that when this occurred I would look after her son, Cristian, who is now 3½ years old. Rhonda moved to Brisbane in 2004 and prior to this she lived with me in Sydney. As mentioned earlier in this document, family life has always been very important to us and each member of the family would always help each other whenever someone was in need. When Rhonda and Thomas lived with me in Sydney I helped with general day to day support in the form of paying bills, cleaning, cooking and performing general household chores. I was in good health and able to do this. I moved permanently to Queensland in April 2009. At that stage Rhonda and Thomas and their son, Cristian, were still living at their home at Keperra, a suburb of Brisbane. However, the plan was for us to move all together to the home at Highvale where we now live. I came up in December 2008 for about 7 days or so and I stayed with Rhonda, Thomas and Cristian at Keperra. I provided a lot of assistance to Cristian at that time. I gave him baths, looked after him, took him to the park, took him out in the pram and generally cared for my young grandson. I moved up to Queensland permanently on about 9 April 2009. We moved into the house at Highvale on 21 April 2009 and for about two weeks after moving into the Highvale home, Rhonda and Thomas spent a lot of time preparing the Keperra home for sale. They were often gone from early in the morning to late at night and I primarily looked after Cristian during this period. My other daughter, Donna, also helped out but I spent many hours a day looking after Cristian during this period whilst Rhonda and Thomas were renovating the home and I think it would be fair to say I spent at least six hours per day caring for Cristian. He was born on 18 June 2006 and at this stage he was less than three years of age. After the renovations at Keperra were finished I continued to look after Cristian and I provided care to him up to about July 2009 and it was at this stage that my breathing problems became quite noticeable and limiting and I was becoming fatigued and suffering from pain. I really noticed this when I found it virtually impossible to put Cristian into his car seat in the car. From that stage on of course my condition has deteriorated further and I have not really been able to provide any care and assistance to Cristian since about July 2009 and in fact Rhonda has been providing a lot of care to me. Had I not developed mesothelioma I would be providing many hours of care to Cristian per week. The idea was he would spend two days at home with me per week and spend three days at childcare in addition to all of the other care and assistance that I would have been able to give to him during the week and on weekends. All of this now is impossible given my symptoms of mesothelioma and the chemotherapy treatment I am receiving. I believe I would have provided at least 30 hours of care per week to Cristian and I have been unable to do this since July this year. I believe I would have been able to provide care to Christian until he was at least the age of 10 years. The amount of care may have varied but even at 10 years of age a boy needs considerable supervision and care." 69I have, however, given limited weight to this evidence, as it principally goes to other issues.

[8]

The issue of dependency in relation to the home 72At the time that these events happened, the first plaintiff and her husband were living in a somewhat run down old house which they were always doing up and which they intended one day to sell. They had a mortgage of approximately $230,000. Following the decision that the parties were going to live together, the first plaintiff and her husband sold their property at $450,000 and then, taking on a mortgage of $360,000, they bought a property for $750,000, with the benefit of the proceeds of the sale of the deceased's home ($400,000). The deceased also paid the stamp duty. 73While the amounts specified in the mortgage ($360,000) was reduced following the injection of the proceeds of the sale of the home owned by the first plaintiff and her husband, this was not only a significant change in living circumstances but a significant increase in debt. The only reason for selling their home at Keperra was in order to have a home large enough for the deceased to come and live with them. They were not selling the home because they had finished doing it up, or because they received a good offer, or for any other comparable reason. Nor had their financial situation changed in any way for the better, other than that they had the benefit of the use of the deceased's money. Without the contribution of the deceased's $400,000, or if they had not had that benefit (if, or instance, there had been a challenge to testamentary arrangements made by the deceased), there financial position would have been significantly worsened. It is correct for the defendant to submit that the financial need of the first plaintiff was reduced as a result of having the proceeds of the sale of the deceased's home, and the benefit of an agreement that the first plaintiff would receive the deceased's interest in the house upon his death (which would have happened in any event as the holding was in a joint tenancy). It is also correct to say that the first plaintiff's financial need was reduced because these payments meant that the mortgage a year after the deceased's death was $250,000 (as opposed to $237,000 in relation to the Keperra home). It is important, however, not to focus solely upon these financial benefits to the exclusion of other contribution issues, in accordance with the guidelines set out by the Court of Appeal in Ball v Newey, supra, and Amaca Pty Ltd v Novek, supra. 74Counsel for the defendant submitted that I should not indulge in speculation (such as, what would have happened if the deceased had died intestate) but that I should deal with the facts of the case. The fact is that the deceased did leave a will and, furthermore, his will was not challenged by his other children or any other potential claimant against the estate. 75It is important to look at these financial transactions in the context of the parties having acquired together accommodation which is residential in nature but which is of a value and requires outgoings far beyond what had been planned by the parties when the deceased was living in his own home in New South Wales and the first plaintiff and her husband were living in Queensland. Whether or not by reason of the death of the deceased his assets were freed up so as to take the financial burden from the first plaintiff, the first plaintiff had entered into a joint obligation which depended upon the financial assistance of the deceased and which would have been very difficult for her to meet without the deceased's financial contribution, both during his lifetime and after his death, from his estate. Accordingly, I do not accept the submissions from the defendant that in this regard the first plaintiff has not established need.

[9]

The $500 fortnightly payment in cash 76Counsel for the defendant next challenged the evidence of the first plaintiff as to the fortnightly payments of $500: "Q. Did your father make any financial, or cash, contribution to you, or Christian? A. Yes, he did. My dad started paying us $500 a fortnight which was always welcome. Q. When he gave you that money did he tell you what to do with it, or did he tell you what to spend it on? A. No. I believe with my dad it was a longstanding tradition... ... Q. What did you understand was the purpose of your father giving you that money? A. It had no strings attached. It was "Here ya go little mumma; he's $500". My dad had the same methodology with my mum; it was ingrained; my dad would go to the bank every fortnight; withdraw $1,000; give my mum $500; when he came to live with me he gave me $500. I could do with it as I pleased, and what I did with it was occasionally put some money on the mortgage; paid for Christian's daycare; bought shoes whatever I needed to do with the funds." (T 23-24) 77Similar evidence was given by the first plaintiff's husband at T 91 lines 4-8. 78Counsel for the defendant submitted that these payments were not because of any need or reliance on the part of the first plaintiff. Not only was there no specific need identified in the evidence, but the evidence did not demonstrate such need or reliance. Counsel for the defendant specifically pointed to the following: (a)There is reference to the first plaintiff and her husband being unable to support their lifestyle whether now or at the time of the deceased's death. Indeed, the first plaintiff has inherited substantially as a result of Mr Pauchlik's death, and in the case of the first plaintiff, in significant preference to her sisters: see the will of the deceased (Exhibit A at 134); (b)The credit card statements in evidence before the Court demonstrate a capacity to make all payments without incurring any interest. The first plaintiff now has a $15,000 credit card limit. See in particular Exhibit 1, at 94, 136 and 180; (c)Capital improvements to the Highvale property were paid for by the first plaintiff and her husband. The first plaintiff denied this initially (T 25 lines 3-4) but conceded that the deceased made no contribution to make any payment for the shed nor was there any plan to (T 44 lines 20-22, and T 49 lines 24-26). The inference was that this was the same with the landscaping for the pool and the ducted air-conditioning. (d)The deceased's Statement of Particulars in his common law claim (Exhibit 1 at 10) say nothing about the first plaintiff's dependency notwithstanding that a claim was brought under s 15B of the Civil Liability Act 2002 (NSW). 79It is submitted that I should find there is no evidence that the deceased ever paid monies to the first plaintiff, let alone $500 (written submissions, paragraph 18). His habit of withdrawing cash from his bank accounts appears unchanged both before and after he went to live with the first plaintiff and her family. 80I do not accept this submission. The deceased had a long habit of hoarding cash. The amount of money he had stockpiled as at the date of his death can be ascertained because $10,000 in cash was found: "Q. Well, he wasn't keeping thousands and thousands of dollars of cash at home, was he? A. Dad did have some money at home, yes. Q. Yes, but not $30,000 did he? A. No. Q. Or even $8,000 correct? A. Yes. No, he had $10,000 in cash at home when he died. Q. Which he had been accumulating to your knowledge? A. I guess so." (T 52) 81I regard this evidence of squirreling away cash to be the most likely explanation for the source of these funds. 82Counsel for the defendant submitted that whether the money was paid or not, there was no evidence in respect of any need for otherwise relied upon. There is no suggestion that this money was used other than for household purposes. I am satisfied that it was for purchasing items that the family as a whole needed.

[12]

The second plaintiff 87The second plaintiff is Cristian, the son of the first plaintiff and the deceased's grandson. He was born on 18 June 2006 and is now six years old. I have set out above the evidence that both the first plaintiff and her husband gave about the proposed arrangements for Cristian's care. Essentially these were that Cristian was to be attending day care for at least two days a week, with the deceased looking after Cristian on the other days (T 87-88). 88The first plaintiff and her husband had paid for full time care from the time that Cristian was one year old (T 97) because both of them worked full time. While they were working on their house at Keperra in April 2009, they were again paying for full time childcare. They had enrolled Cristian in a full time position in a new childcare centre, Tadpoles, in June 2009, which was before the deceased became unwell (Exhibit 1, page 287). 89Counsel for the defendant points to the following: (a)A deposit payment to this childcare centre was made shortly after the deceased became unwell. There is no evidence that the decision to enrol Cristian full time was because the deceased was unwell. (b)The deceased would need an authority to pick up or drop off Cristian and this was never obtained (T 70). This meant he could not pick up or drop off Cristian unless he was accompanied by the first plaintiff or her husband. (c)There was no evidence of any activities performed at home by the deceased for Cristian because of any need. Rather they reflected the willingness of the deceased to do such activities as an alternate to the first plaintiff and her husband, who remained the primary carers. 90The whole of the living arrangements for the deceased to come and live with the first plaintiff, her husband and the second plaintiff, was upon the basis that a significant amount of childcare activities would be carried out by the deceased. 91I am satisfied that this was the family's expressed desire and intention, and that only the deceased's unexpected illness and death prevented it from being carried out.

Kuenzel v Workers Compensation

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Judgment (15 paragraphs)

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