1.12 What Constitutes Partly or Wholly Dependent for Economic Support?

It will not be necessary for many of the persons listed as possible 'dependants' by Subsection 4(1) to actually demonstrate whole or partial dependency for economic support. That is because many dependants will be deemed to have been wholly depend — e — nt by virtue of their circumstances (s — ee 1.13). However, w — here the person is not deemed to be wholly dependent, they need to demonstrate either whole or partial dependency on the deceased for economic support.

In its simplest or basic form, economic support and maintenance would equate to the amount of financial assistance (money) needed to provide the necessities of life to the recipient.  The relevant amount would vary on the facts of the case because people have different standards of living.  A practical approach may be to consider the financial contribution provided consistently over a period of time towards the total cost of the dependant in maintaining the necessities of life at the standard of living enjoyed.  The simplest example is where a dependant relied on the deceased person for 100% of their economic support.  Whilst not determinative, this will be a persuasive indicator that the dependant was wholly dependent.

Economic considerations are one of many indicators of dependence, and will not constitute conclusive proof.  However, they may be taken into account to assist the decision-maker in obta — ining an overall vie — w of a claimant's circumstances and for determining the likelihood and degree of a claimant's dependence.

The fact that economic support and the extent of any such dependency is not something that can readily be codified was clearly enunciated by Chief Justice Barwick in Kauri Timber Co (Tas) Pty Ltd v Reeman 128 CLR 177, a High Court case, where he said:

"Somewhere between the extremes of the provision of bare necessities and the receipt by the wife of any advantage not provided by her husband there must be a line, no doubt vaguely defined and difficult of precise or even approximate definition or description, which marks off the difference between expenditure which denotes and expenditure which denies dependency."

The case of Kauri Timber Co is the authority that the dependent person may be independently employed but still qualify as wholly dependent, depending on how that income was used.  If independent income was not used for the dependant's own maintenance or support (ie it was disposable income or used merely to improve their quality of life), they are likely to remain wholly dependent.  The relevant question is whether or not the independent source of income made the dependant less than wholly dependent.  It is not relevant that the independent income could have lessened their dependence on the deceased person.

The importance of examining the facts of each case is emphasised by the following extract from the AAT decision in Lambroglou and Australian Telecommunications Commission [1989] AATA 713:

In attempting to determine for the purposes of this application whether the Applicant was a dependant and if so, whether she was wholly or partly dependent upon the deceased, no truer words have ever been spoken than were by Mason J in Aafjes v Kearney (1976) 8 ALR 455 at 463:

"As often happens in the field of workers' compensation where the questions are primarily questions of fact, the decisions are not notorious for their uniformity. Consequently it is not an illuminating experience to explore the cases in any detail."

Barwick CJ in Aafjes deals with the issue of dependency at page 456 by stating:

"... the question of dependence or no dependence, whole or partial, is a question of fact. It has been said to be so in many authorities by distinguished members of the House of Lords. It cannot be turned into a question of law by the citation of authorities."

In my view the numerous authorities dealing with the manner in which dependency is determined clearly demonstrate that a court or a tribunal should look at actual facts...”

Note that the economic link between two individuals must be in the nature of support and must be relied upon by the recipient. It is not sufficient that the deceased employee made sporadic gifts of money (or goods of value) that the recipient did not need for 'support' or were of such an irregular nature that the recipient could not rely on those gifts for continuous sustenance.