SERDZEFF v VICTORIAN WORKCOVER AUTHORITY

14 VR 43·Maxwell P, Charles and Chernov JJA
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14 VR 43
14 VR 43
SERDZEFF v VICTORIAN WORKCOVER AUTHORITYCourt of AppealMaxwell P, Charles and Chernov JJA26 October, 21 December 2005[2005] VSCA 320Accident compensation — Workers compensation — Work-related death — Dependency claim — Domestic partner — Deceased workers earnings very small — Claimants earnings substantially greater than those of deceased worker — Claimant partly dependent on deceased workers earnings — Two-stage test for entitlement — Statutory fiction calling for claimants earnings to be disregarded — Claimant mainly dependent on workers earnings by application of statutory fiction — Overlapping definitions of “dependant” and “dependent partner” — Accident Compensation Act 1985 (No 10191) ss 82(2), 92A..

Section 82(2) of the Accident Compensation Act 1985 provided that “dependants” of a deceased worker “shall be entitled, subject to this Act, to compensation in accordance with [its terms]”.

Section 5 of the Act defined a “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”.Section 92A of the Act prescribed the amount of compensation payable to the various stated categories of the deceased workers dependants — principally, dependent partners and children — defined by the section. It defined a “dependent partner” to mean a partner who was “wholly or mainly dependent on the workers earnings”. Section 92A(2) provided that, in determining whether a partner was wholly or mainly dependent on the workers earnings at the date of his or her death, the partners earnings from personal exertion, and any savings from such earnings, were to be disregarded. Section 92A(3) provided “[i]f a workers death … entitles the workers dependants to compensation, compensation under this section is [to be] determined … in accordance with this section”.S, who worked as a registered nurse, claimed dependency compensation under s 92A of the Act arising out of the work-related death of her domestic partner, U. Before suffering the injury which led to his death, U, who lived with S in a house which she owned, was employed in a low-paid part-time job, and had occasionally been contributing small amounts of cash for the couples household expenses and for the claimants motor vehicle running costs. Otherwise, S paid their living expenses. A County Court judge dismissed her claim on the basis that S had not established that she was dependent on Us earnings. S appealed.

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