(b) that he was at that particular time or at another time a member of the household of which the deceased person was a member.
3 The concepts of dependency and part of the household have been examined in many cases. I have been assisted by submissions in relation to those matters.
4 In Ball v Newey (1988) 13 NSW LR 1989 the Court of Appeal first considered the question. His Honour Mr Justice Samuels at page 490 said the following:
"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 dependents analogous to but distinct from financial dependents which would be capable of satisfying the requirements of section 6(1) the definition of 'eligible person'.
(d)(i) In the present case, however, only financial dependents is relied on and I approach the matter on that basis. 'Dependent' in the ordinary sense of the word, means the condition of dependent 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 L.J. In Lee v Munro (1928) 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 dependents and not emotional dependents, 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".
5 His Honour analysed the facts in the case and particularly referred to the fact that the parties had jointly decided to pool their income for the purpose of purchasing property together. He referred to the submission that each of them in the case of a joint mortgage could have only received a partial benefit. At page 492 he addressed the argument in these terms:
"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 basis 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 facts: 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 dependents 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 and 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 love they wished to pursue, each was, it is open to find, partially dependent upon the other".
6 This passage emphasises the factual nature of dependency be it financial or otherwise.
7 In Benny v Jones (1991) 23 NSW LR 559 the Court of Appeal returned to the issue in a case where the only dependency was emotional resulting from a homosexual relationship between a party and the deceased. The court rejected a submission that dependency may be based solely on the existence of dependents.
8 In Petroholis v Hunter (1991) 25 NSW LR 343 at 346 the court once again considered the meaning of dependency. At page 346 the court had the following to say:
"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. In order 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 the language.
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'.
If the correct view were that the context of the statute requires a limitation of the word to 'financial or material' matters as McClelland J said in Fe Fulop deceased or to 'other forms of dependents analogous to but distinct from financial dependence' as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them.
To suggest that, in a money sense they are valueless, is simply wrong. If the provision or accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision of by a mother to her children, living with her, of the services essential for their well being does not make them partly dependent upon her. In my opinion it does.
The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period".
9 In McKenzie v Baddeley (Court of Appeal, 3 December 1991), his Honour Mr Justice Meagher, although in the minority, further discussed dependency and described it as "financial economic or material dependency, nor a mere emotional dependency". Importantly in that case the majority held that the word "partly" in the phrase "partly dependent" does not mean "substantially" but meant "more than minimally" or perhaps "significantly".
10 In Williams v Legge (Court of Appeal 16 March 1993) the Court in considering a case of a young child needing mothering pointed out that the absence of financial dependent is not conclusive.
11 The more difficult question is whether the plaintiff was part of the household. There was an extensive discussion of the meaning of "household" in Kingsland v MacIndoe 1989 VR 273 and it seems clear that the word in its ordinary sense as set out in the Oxford Dictionary means:
"The holding or maintaining of a house or family; house keeping; domestic economy, the inmates of a house collectively; an organised family, including servants or attendants, dwelling in a house; a domestic establishment".