3 The appellant, Irene Serdzeff, appeals pursuant to s.52 of the Accident Compensation Act 1985 ("the Act" or "the 1985 Act") against the order of a judge of the County Court, made on 17 December 2004, dismissing her claim for compensation under s.92A of the Act arising out of the work-related death of her domestic partner, Steven Underwood ("the deceased"), who died at the age of 47 years on 26 February 2003 as a result of injuries he sustained on 12 April 1999 in the course of his employment. For some time prior to the deceased's injury he and the appellant lived together in a bona fide domestic relationship and, in October 1998, they became engaged to be married. At the time of injury the couple were not married, but it was common ground that the appellant was then a partner of the deceased within the meaning of the Act ("partner"),[1] that this relationship was extant at the time of his death and that the deceased died as a result of work-related injuries. As will be explained more fully later, the appellant sought compensation under s.92A of the Act on the basis that she was a "dependent partner" of the
deceased at the time of his death. The learned judge concluded, however, that the appellant had failed to establish relevant dependency and, accordingly, dismissed her application for compensation. It is against this decision that the appellant has instituted the appeal.
Overview of legislation
4 In order better to understand the appellant's claim and his Honour's decision it is necessary first to outline briefly the legislative scheme that operated at the relevant time and to refer to some of its provisions. The relevant parts of the Act came into operation variously in June and August 1985. As will be explained, a number of its provisions, which are relevant to the appeal, were inserted into the Act by a major amending Act, the Accident Compensation (Miscellaneous Amendment) Act 1997[2], and further amendments were made in 2001.
5 In general terms, the relevant provisions of the Act are concerned with the payment of compensation to those who were dependent on the earnings of a deceased worker who died as a result of work place injuries. Thus, the Act specifies the persons who are entitled to claim such compensation as well as providing a mechanism for determining the amount to which each such claimant is entitled. More specifically, s.82(2) of the Act[3] prescribes the circumstances in which a person may become entitled to compensation. It relevantly provides that "dependants" of the deceased worker "shall be entitled, subject to this Act, to compensation in accordance with [its terms]". So far as is relevant, s.5 defines "dependant" to mean "a person who ... (b) would but for the incapacity of a worker due to the [work-related] injury have been wholly, mainly or partly dependent on the earnings of the worker".[4] (Emphasis added.) Section 92A[5] then prescribes the amount of compensation that is payable under the Act to the various stated categories of dependants of the deceased worker - principally, dependent partners and children - defined by the section. Thus, for example, sub-s.(4) sets out the amount that is to be paid to a dependent partner of the deceased who has left no dependent children. A "dependent partner" is defined to mean a partner who was "wholly or mainly dependent on the worker's earnings". Sub-section 92A(2) provides that in determining for the purposes of the section whether a partner was wholly or mainly dependent on the worker's earnings at the date of his or her death, the earnings of the partner from personal exertion, and any savings from such earnings, are to be disregarded. Importantly, s.92A(3) provides "[i]f a worker's death ... entitles the worker's dependants to compensation, compensation under this section is [to be] determined...in accordance with this section". (Emphasis added.) Thus, one of the matters that a claimant must establish in order to secure a right to payment of compensation under s.92A is that he or she is entitled to compensation in accordance with the Act. Section 92A, however, does not provide the criterion for determining if a claimant is entitled to compensation. The section that deals with this question is s.82(2), which, as I have noted, confers entitlement to compensation on "dependants" of the deceased worker as defined by s.5(1) of the Act.
6 For reasons I give later, I consider that the legislation requires a court in determining an application by a partner to undertake a two-stage analysis before the matter of the quantum of compensation is addressed - first, as is required by s.92A(3), to determine if the claimant partner is entitled to compensation pursuant to s.82(2), and secondly, to determine whether the claimant is a "dependent partner" pursuant to s.92A(2). Although the definitions of "dependant" in s.5 and "dependent partner" in s.92A(1) are not identical, there is a clear and substantial overlap between them, so that it is difficult to see why such a two-stage approach was considered necessary. But given the history of the legislation and, in particular, the frequent piecemeal amendments that have been made to it (often in order to reflect a new government's different view on an aspect of the legislation), it is not productive to seek to resolve such a question by resort to commonsense analysis.
7 Notwithstanding that the legislation has created a two-stage approach to determining these questions as I have noted, the parties presented their respective cases below on the basis that the sole matter for determination by his Honour was whether the appellant was a "dependent partner" within the meaning of s.92A. No evidence or argument seems to have been addressed directly to what might be thought to have been the necessary anterior question, namely, whether the appellant had an entitlement to compensation pursuant to s.82(2) of the Act.
Evidence
8 Be that as it may, so far as the evidence was concerned, much of it was uncontroversial. Thus, there was no dispute that the appellant was approximately ten years younger than the deceased and that she was, at all relevant times, employed as a registered nurse, Division 1, having graduated as a nurse in approximately 1988. Moreover, it was accepted that throughout the relevant period the appellant owned the unit in which the couple lived. The evidence established that, prior to his injuries, the deceased worked for approximately 20 to 25 hours per week, earning in the order of $11 per hour. The records before the court showed that, between 7 September 1998 and 30 June 1999, the deceased earned gross wages of $11,732 from which tax was deducted. After the injury, the deceased received WorkCover payments until his death. As to the deceased's contributions to the household expenses, the appellant's evidence was that she was effectively in charge of paying the relevant accounts and that, although the deceased gave her small weekly cash payments - which varied from week-to-week from nothing to $40 - she paid, through her MasterCard account, their living expenses, such as gas, water, electricity, health insurance, telephone accounts, insurance, car registration, food, clothing, entertainment and medical expenses. The same generally applied, she said, to the cost of meals that they had in restaurants and cafés. The cash that was provided by the deceased, said the appellant, was usually expended on sundry expenses that were not identified other than in general terms. It was said that such money covered the cost of the items purchased by the deceased for his personal use, such as cigarettes, although she said that some of it was put to her use. Importantly, the evidence established that the deceased effectively paid for the petrol that he acquired at his workplace, the cost of which was debited against his wages. That petrol was purchased for the appellant's car, which was usually driven by her for her own purposes, although often he was a passenger in the car. There was very little evidence before his Honour, however, as to the deceased's future employment prospects and earning capacity. It seems that he worked only approximately half of the working week, as I have mentioned, but aspired to return to full-time work in sales. As at the date of his death, however, he had been unsuccessful in his endeavours to locate such work.
Case below
9 The appellant's principal case below was that, since her salary was to be disregarded for the purpose of determining if she was a "dependent partner",[6] on the evidence, the only relevant source of income was that provided by the deceased, so that it was plain that she was wholly or mainly dependent on his earnings and thus, entitled to compensation in the appropriate amount, as prescribed by s.92A. On the other hand, the respondent contended that, on the evidence, relevant dependency had not been established. His Honour essentially found that the evidence did not show that the deceased's earnings were applied for her maintenance and support or to providing the appellant with the necessities of life and thus, concluded that her dependency on his earnings was not established. His Honour came to that conclusion notwithstanding that he had earlier acknowledged that, for the purpose of determining if there was "dependency", he was required "to disregard any money concerning which the [appellant] was the source." Accordingly, the application was dismissed.
Appeal
10 In her notice of appeal, as filed, the appellant contended that two questions of law arose for determination - first, whether the learned trial judge misconstrued the operation of s.92A(2) of the Act; and secondly, whether his Honour erred by failing to give adequate reasons, particularly in relation to the appellant's submission as to the proper operation of that section. No challenge was made in the notice, however, to his Honour's findings, nor was it claimed that his Honour wrongly failed to determine if the appellant had an entitlement to compensation pursuant to s.82(2) of the Act.
11 In support of the contention that his Honour misconstrued the operation of s.92A(2), Mr O'Loghlen, for the appellant, argued that the provision was part of the legislative scheme that adopts a broad brush approach to the provision of compensation to dependants of deceased workers. In particular, it was said, the fiction in sub-s.92A(2) was "a device to protect working wives" and effectively converted a working wife into a non-working wife. More recently, it was said, this principle was extended to domestic partners. Thus, counsel argued, in determining if the appellant was relevantly dependent on the deceased at the time of his death, her earnings were to be disregarded and, given that in those circumstances the only income of her household came from the deceased, she was plainly wholly dependent on his earnings and was, therefore, entitled to compensation on that basis in accordance with the section. It was said that Wattz v. Northey (No.1)[7] supports this conclusion. That decision makes it apparent that the question "who are a deceased worker's relevant dependants" is to be determined in accordance with sub-s.92A(2) and the amount of compensation is to be calculated pursuant to subsequent sub-ss.92A(4)-(9).
12 Counsel further submitted that, although his Honour said in his reasons that he was required to disregard the appellant's earnings, it is plain that he did not do so. Mr O'Loghlen argued that his Honour relied on what was said in Kauri Timber Co. (Tas.) Pty Ltd v. Reeman[8] as to the meaning of "dependant", and then looked to see if, in fact, the appellant depended on the deceased's wages at the relevant time, thereby wrongly failing to give effect to the fiction created by s.92A(2).
13 The separate and second aspect of the appellant's case was, as I have mentioned, that his Honour did not provide sufficient reasons for his decision so that the judgment is vitiated. In the end, however, this argument was not pursued.
14 Mr Ruskin, for the respondent, pointed out that the appellant did not challenge in the notice of appeal his Honour's findings that the deceased worker did not maintain the appellant to the extent that she was "dependent" on him for the purposes of the Act. In reliance on the respondent's notice of contention Mr Ruskin argued that the evidence did not establish that the appellant was even partly dependent on the deceased worker's earnings so as to show that she was a "dependant" for the purposes of s.82(2) and, therefore, s.92A(2) could not artificially convert her into a "dependent partner". It was implicit in counsel's argument that, before the fiction prescribed by s.92A(2) could operate in respect of a partner of the deceased worker for the purpose of determining if he or she was relevantly dependent, it had to be established that the partner was entitled to compensation under s.82(2) and, in order to do that, it had to be demonstrated that he or she was at least "in part" dependent on the deceased's earnings. It was said that, on its proper construction, s.92A(2) does not operate to render a person who is not even partly dependent on the deceased's earnings "wholly or mainly" dependent; the purpose and effect of the provision is to "uplift" a partner who is first shown to be at least partly dependent on the worker's earnings to the status of someone who is "wholly or mainly" dependent, by reason of the operation of the statutory fiction of disregarding that partner's earnings.
15 Although Mr O'Loghlen did not, in terms, argue that the legislation does not prescribe a two-stage analysis of an application such as the present, he did inform the Court that it was common, in applications of this kind, for the matter to be determined by enquiring only whether the claimant partner of the deceased worker was wholly or mainly dependent on the deceased's earnings and, for that purpose, to disregard her earnings pursuant to s.92A(2). It was said that the enquiry contemplated by s.82(2) would be effectively subsumed in that analysis. Furthermore, counsel said, as I understood him, that those experienced in this area of the law adopted this one-stage approach because it was considered that the 1997 amendments merely widened the category of relevant claimants without altering the substance of what had to be established in order to demonstrate a right to compensation and that, prior to 1997, the legislation had adopted a one-stage approach. The Court asked the respondent to provide it with any relevant information it might have regarding the approach taken by it in respect of such dependency claims. In their helpful memorandum of 4 November 2005, the respondent's counsel informed the Court that, essentially, no discernible practice in that regard has been established. It was said that the concept of the two-stage approach, and the correct interpretation of the statute in this context, have not in terms been advanced in other instances. Further, it was said that, in this case, neither party at first instance "turned its mind, in terms, to whether or not there was properly a two-stage approach" that had to be undertaken by the court. In order to analyse, in its proper context, Mr O'Loghlen's implicit contention that a two-stage approach to a claim such as that of the appellant is unnecessary, it is desirable to look briefly at the legislative history of the provisions in question.
Legislative history
16 The Acts of 1914 and 1958, and the 1965 amendments to the latter Act, did not, in terms, directly confer on a dependant of a deceased worker an entitlement to compensation. Rather, the scheme of the legislation was to impose a liability on the employer to pay compensation to dependants with respect to a work-related injury. The statute then provided, by way of a Schedule to the Act (or like mechanism), a criterion by which to determine the quantum of the compensation that was payable to such dependants.