[1973] PNGLR 426

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

GAINI PAPAITI

V

THE ADMINISTRATION OF THE TERRITORY OF PAPUA AND NEW 
GUINEA

Port Moresby
Minogue CJ Kelly Clarkson Prentice JJ

3 March 1972
12 September 1972
3 December 1972

WORKERS’ COMPENSATION - Dependent - Wholly or in part dependent - Earnings of deceased - Applicant wife working subsistence gardening in conjunction with deceased’s father - Capacity in which deceased’s father provided sustenance relevant - Workers’ Compensation Ordinance, 1958-65 s. 5 (1).[cdlxxxv]1

G.P. was the wife of a deceased worker to whom the Workers’ Compensation Ordinance, 1958-1965 applied. G.P. and the deceased were married in 1963 and lived together in their village in the Central District until the deceased went to Pt. Moresby in 1966 to work for the Administration. There was one child born in 1965. The deceased had usufructuary rights to land in the village which prior to his going to Pt. Moresby was used as a garden and worked by the deceased, his wife, his father (who also had certain rights to the land) and his mother. After the deceased went to Pt. Moresby, the deceased’s father made another garden with the assistance of G.P. on the same land and it was worked partly by G.P. After the deceased’s death his rights to the land went to other male relatives and the respondent subsequently remarried.

Up until his death in June 1967 the deceased sent to his family from Pt. Moresby $10.00 in cash and a suitcase containing a quantity of clothing. The clothing was for his wife, the child, his father and his mother. The money was used to pay council tax, 50c went to G.P. and some part towards the purchase of food. Whilst he was away the deceased’s father was left as head of the household and had G.P. and the child under his protection.

A magistrate sitting as arbitrator found in the circumstances that G.P. and the child were wholly dependent upon the earnings of the deceased worker at the date of his death within the meaning of “dependent” in s. 5 (1) of the Workers’ Compensation Ordinance 1958-65. On appeal the appeal judge found that G.P. was dependent for her day-to-day subsistence on her own efforts in cultivating the garden and the dependence on the deceased’s earnings at the time of his death was only partial within the meaning of the Ordinance and related only to his earnings from his employment by the Administration.

On appeal to the Full Court.

Held

(1)      The question of the capacity in which the deceased’s father provided sustenance for G.P. and the child was crucial to a determination of the degree of dependency on the deceased within the meaning of the Ordinance. If the deceased’s father was in effect acting as his agent a finding of total dependency would be justifiable.

(2)      As the learned appellate judge did not appear to have directed his mind to this question, the case should be remitted to the arbitrator for him to inquire further as to the real basis upon which G.P. and the child derived subsistence in their village.

Appeal

G.P. (the appellant) was the wife of a deceased worker to whom the Workers’ Compensation Ordinance 1958-65 applied. In a claim for compensation in respect of herself and one child, the District Court found that G.P. and the son were wholly dependent upon the earnings of the deceased worker at the time of his death. On appeal from that decision Kelly J (whose judgment is set out hereunder) found that G.P. and her son were in part dependent on the earnings of the deceased worker at the time of his death. G.P. then appealed to the Full Court against this finding. The relevant facts are set out in the reasons for judgment of Kelly J

Counsel
M. Campbell, for the appellant.
J Kinna, for the respondent.
Cur. adv. vult.

3 March 1972

[The judgment of Kelly J against which the appeal arose is set out hereunder.]

KELLY J: The deceased Kamo Simona then aged 26 years died on 23rd June, 1967, having been employed by the appellant The Administration of the Territory of Papua and New Guinea since 14th January, 1966. It is not in dispute that the deceased was a worker to whom the Workers’ Compensation Ordinance 1958-1965 applies and that the appellant is liable to pay compensation under that Ordinance to his dependants. The respondent Gaini Papaiti was at the time of his death the wife of the deceased worker and she has claimed compensation on behalf of herself and Laipu Kamo their son. On a reference to arbitration under the Ordinance, the District Court found that the respondent and her son were wholly dependent upon the earnings of the deceased worker at the time of his death and should receive compensation on that basis and it is from that decision that this appeal is brought.

The respondent married the deceased in 1963. They lived together in their village Baidana in the Woitape area of the Goilala Subdistrict, Central District, until the deceased went to Port Moresby in 1966. The child Laipu was born in 1965 and was about six months old when his father went to Port Moresby. The deceased had usufructuary rights to land in the village which prior to the deceased’s going to Port Moresby was used as a garden and worked by the deceased, the respondent and the deceased’s father Simana Aiva who, it would appear, also had rights to the land, and his wife. After the deceased went to Port Moresby Simana made another garden with the assistance of his wife and the respondent, this being presumably on the same land. This garden was worked by the respondent and Simana’s wife. After the death of the deceased his rights to the land went to other male relatives and the respondent subsequently remarried.

During the period he was in Port Moresby the deceased on one occasion sent to his family $10.00 in cash and a suitcase containing a quantity of clothing. The clothing was for the respondent, their son Laipu and Simana and his wife, and the money was used in part to pay Council tax, of which fifty cents was for the respondent, and in part to buy food. At the time of his death the deceased had $30.00 in cash which was used for the funeral party, but the respondent did not receive any further money or presents from him.

Evidence relating to the child Laipu is very scanty. The respondent said that while the deceased was away Simana looked after him and fed him and that he now looks after him. Simana said that when Laipu grows up he will take his father’s place to get his father’s land but I obviously cannot have regard either to the present or future position in determining the question of dependency as this has to be determined as at the date of death. Similarly I do not consider that the evidence of Mr. Briggs, a patrol officer, as to the altered position of a boy without a father is relevant to the question of whether this particular child at the date of his father’s death was wholly or mainly dependent upon his earnings.

For the present purpose only two provisions of the Ordinance require consideration. One is s. 5 (1) which defines “dependant” as meaning in relation to a deceased worker, inter alia, a member of the worker’s family who was wholly or in part dependent upon his earnings at the date of his death. Both the respondent and her son are for the purpose of the Ordinance members of the worker’s family. The other provision is in the Second Schedule which sets out in sub-par. (a) of par. (1) the amount of compensation payable where the death of the worker results from the injury. Under cl. (i) of sub-par. (a) if the worker leaves any dependants wholly dependent upon his earnings a lump sum is payable together with a further sum in respect of each child who, being a dependant under the age of sixteen years at the date of either the injury or the death of the worker was at the date of the injury wholly or mainly dependent upon the earnings of the worker. Under cl. (ii) if the worker does not leave any dependants wholly dependent upon his earnings but leaves dependants in part dependent upon his earnings there is payable such sum, not exceeding in any case the amount payable under cl. (i) as is reasonable and proportionate to the loss to the dependants resulting from the cessation of the earnings of the worker.

Whether there is dependency upon the earnings of the deceased worker is entirely a question of fact in each case (Main Colliery Company v. Davies[cdlxxxvi]2) and merely because the respondent is the wife of the deceased it does not necessarily follow that she is thus dependent (see, for example, New Monckton Collieries, Limited v. Keeling[cdlxxxvii]3).

Likewise the question of whether dependency is whole or partial is a question of fact (Hodgson v. West Stanley Colliery[cdlxxxviii]4). In that case Lord Shaw agreed with the views of Collins M.R. and Stirling L.J in Pryce v. Penrikyber Navigation Colliery Company[cdlxxxix]5 where Collins M.R. said[cdxc]6 “I understand, by the words ‘wholly dependent’ that there was no other source of income during the lifetime of the deceased other than his earnings on which the applicant was dependent.” Stirling L.J said[cdxci]7 “Put broadly, the test raised by the Act is whether what the workman was earning at the time of his death was the sole source to which the applicant could have looked for maintenance at that time.”

The basic question here is what were the “earnings” of the deceased at the date of his death. The magistrate constituting the District Court proceeded on the basis that those earnings were the total reward or return from his work at home and away including the return from the garden worked by the respondent. The meaning of “earnings” in a comparable provision of the Workers’ Compensation Act of the United Kingdom was considered by the Court of Appeal in Rogers v. Henlys, Ltd.[cdxcii]8 where it was held that the word was not there used in the limited sense of earnings under a contract of service but was a compendious way of saying that the members of the family were dependent for their livelihood on money coming to them from the workman at the head of the family (see p. 424 per Scott L.J). In Rogers v. State Mines Control Authority [cdxciii]9, Sugerman and Walsh JJ held that “earnings” in the definition of “dependants” in s. 6 (1) of the New South Wales Workers’ Compensation Act (which is in similar terms to the corresponding provision of s. 5 (1) of the Workers’ Compensation Ordinance here under consideration) refer to what is earned by the worker— the rewards which he receives for his efforts— in employment or in some business which he carries on. The question of whether or not the proceeds of some other form of gainful activity may not also be included in the term as there used was left open; it was pointed out that Rogers v. Henlys, Ltd.[cdxciv]10 is not an authority for giving the word “earnings” an artificially extended meaning, and that that case merely shows that “earnings” in this context may include what the worker had been accustomed to earn, in the sense indicated, in a business carried on on his own account in addition to what he earned in his employment. The Full Court held that “earnings” in the definition of dependants in s. 6 (1) of the Act do not include payments to a worker of workers’ compensation nor payments to a worker of a miner’s pension.

Whilst in Rogers v. Henlys, Ltd. (supra) Scott L.J did refer to “money” coming from the workman at the head of the family, I do not consider that this can be taken to mean that “earnings” are limited to a monetary reward for work and could not include a reward in kind, as in the context in which the Court of Appeal was considering the matter there was no question of the earnings being in any form other than money. That the term is not so limited is indicated by Cozens-Hardy L.J in Great Northern Railway Company v. Dawson[cdxcv]11 where he says— ”It must, I think, upon the authorities, be taken to be a fallacy that the wages in money are necessarily to be the measure of the workman’s earnings for the purposes of the Act. It cannot be doubted, for instance, that, if a workman is, in addition to his wages in money, allowed to occupy a house belonging to his employer, the value of that occupation must generally be considered as part of his earnings, because the necessary inference would be that, but for this privilege, the amount of his wages in money would be higher”. The provisions of s. 7 (2) of the Workers’ Compensation Ordinance may also be noted, namely, “In calculating wages for the purposes of this Ordinance— ... (b) the value of rations, clothing, accommodation or issues made or given under the contract of service or apprenticeship or by law required to be so made or given shall be included in the wages; ...”

In the light of these authorities I consider that the correct view is that the “earnings” of a worker such as the deceased may include both what he earned under a contract of service with an employer and also what he has been accustomed to obtain from the cultivation of a garden even though this was being done only for the purpose of the subsistence of himself and his family and return from such a garden was entirely in kind.

Applying this view of the law to the facts of the present case it is apparent that it is difficult to bring the reward obtained at the time of his death from the cultivation of the deceased’s land in his village within the concept of “earnings” in the sense which I have indicated, without giving the word an artificially extended meaning. It is true that the deceased had usufructuary rights to the land on which the garden was made and from which produce for the subsistence of the respondent and her son was obtained but the deceased in his absence had no part in this, the cultivation being done by the respondent and Simana and his wife. The position is altogether different from that which would have applied if it had been the deceased who had still been cultivating the garden (even with the assistance of others) so that the return from the garden would then have formed part of his earnings. Certainly the deceased’s wife and son were in his absence entitled to what was produced from his land but I am unable to see that this carried with it the consequence that what was thus produced over the period of months when the deceased had no connection with the garden whatsoever (other than the fact that it had been made on land to which he had usufructuary rights) is to be regarded as his “earnings”. During this period the respondent with some assistance from Simana and his wife was dependent for her day to day subsistence on her own efforts in cultivating the garden and her dependence on her husband’s earnings at the time of his death was only partial and related only to his earnings from his employment by the appellant. Whilst the respondent was in a position to cultivate the garden only by reason of the fact that she was the wife of the deceased and so to that extent was dependent on her position as his wife, this does not carry with it the consequence that she was dependent on his earnings, which is a different matter. I do not consider that it would be correct to equate the cultivation of the garden by others in the absence of the deceased to the operation of a business carried on by the deceased as this view is not warranted by the facts. I would add that whilst I would certainly agree that the fact that separation does not of itself affect the question of dependency (see Morabito v. Malleable Castings Ltd.[cdxcvi]12) this has no bearing on the conclusion which I have reached on the factual situation.

So far as the child Laipu is concerned, in view of his age he was clearly wholly dependent on someone as the magistrate correctly points out. He was no doubt at least in part dependent on the earnings of his father, the deceased worker, to the same extent as was his mother, the respondent. Beyond that it appears to me that as a matter of fact his dependency for his day to day needs was either on his grandfather Simana or his mother and perhaps partly on each, but in neither event could it be said that his ultimate dependency for those needs was on his father’s earnings. This follows from the reasoning which I have set out above which led me to the conclusion that the respondent was only partly dependent on the earnings of the deceased.

In forming the view which I have on the facts of this matter I have taken into account native custom to the extent to which it is permissible to do so and to the extent to which the relevant custom is indicated by the evidence. I am also fully conscious of the necessity to keep in mind when interpreting and applying an Ordinance of Papua New Guinea which has been modelled upon and indeed has adopted the language of other enactments which are designed for operation elsewhere under conditions which in some instances differ considerably from those which apply here that due regard must be had to the circumstances of this country and, where appropriate, a somewhat broader interpretation may be given than might be the case in those other places. Nevertheless making all due allowances for these matters I find myself quite unable to reach the conclusion that “earnings” could be given such a wide interpretation that on the facts of this case it could properly be held that the respondent or her son were wholly dependent on the earnings of the deceased at the date of his death.

In the result the appeal is allowed and the decision appealed from is varied by substituting therefor a finding that the respondent and her son Laipu Kamo were in part dependent on the earnings of the deceased worker at the time of his death, such dependency relating only to his earnings from his employment with the appellant and that they should receive compensation on that basis. As I was not asked to concern myself with the question of quantum and as no argument was directed to me as to the computation of compensation if it should be found that the dependency was only partial, I have not given consideration to the sum which should be awarded by way of compensation by reason of this partial dependency.

MINOGUE CJ CLARKSON J: A magistrate sitting as an arbitrator, made a finding that the appellant wife and her son were wholly dependent upon the earnings of her deceased husband Kamo Simona as at the latter’s death. On appeal, under s. 23 of the Workers’ Compensation Ordinance, 1958-65 the learned appeal judge was of the opinion that the appellants were dependent only partially within the meaning of the Ordinance— the dependency relating only to the deceased’s earnings from his employment with the Administration. His Honour accordingly allowed the appeal and substituted a finding of partial dependency. Section 23 of the Ordinance provides that such an appeal may be “on a question of law or fact or both ... and the appeal may be in the nature of a rehearing”. Both his Honour and the arbitrator were of the opinion that case law made it clear that questions of dependency and degrees of dependency were questions of fact. With respect this seems to be well established but the case illustrates the difficulties which arise when social legislation designed for the benefit of the restricted family of western society is made applicable to subsistence farmers living in the extended family of indigenous society.

The deceased man had been working away from his village in Port Moresby from January, 1966 until the date of his death on 23rd June, 1967. During this period he had sent a sum of $10.00 and some clothing to his family, i.e. to his father, mother, wife and child. Whilst he was away his father had been left as head of the household and had the applicant wife and child under his protection.

Some of the work in the village, which resulted in the “support” of the appellant and her son was done by the deceased’s father and mother and some was done as well by the wife herself— this work being of the nature of subsistence gardening. It appears that two views have been taken as to this. The learned magistrate found no difficulty in holding that such work as the widow appellant did, did not detract from her condition of complete dependency on the deceased. He compared the condition of an Australian housewife, and relied on the decision of Ollerenshaw J in Iapadik v. H. N. Green[cdxcvii]13. He realized that it might be said that the applicant and her child depended during the long absence of her husband not so much on him as on the father-in-law but he took the view that although the father-in-law worked in the family garden and thus assisted the applicant this would not necessarily reduce her dependency on her husband. Anything done for her he said was probably done more as a duty to the husband than to her.

It may be that he based his ultimate finding of total dependency on the view that the father was acting in effect as the deceased’s agent in providing for the support of the applicant during his absence. At the end of his reasons for judgment he expressed the position rhetorically that if before her husband’s death the applicant had been asked by whose efforts was she established in her garden and on whom she ultimately depended for necessaries her proper answer must have been “Kamo” (the deceased) whose duty it was to care for “his wife and parents and child” and who was carrying out that duty when he died.

However, we cannot see anything in the evidence which would justify the learned magistrate in coming to the conclusion that anything done by the deceased’s father for the applicant was probably done more as a duty to the husband than to her. The case before him seems to have been conducted more with regard to the destination of the deceased’s monetary earnings in Port Moresby than as an inquiry into the nature of the relationship between father and son. Of course if it were clear (which on the evidence it is not) that either by express arrangement or by local customary usage the father was acting as agent for the son rather than that the applicant by virtue of her position in the clan structure was entitled to call on the assistance of the deceased’s father or of his mother in the preparation of food gardens and the provision of the subsistence of herself and her child we would not think there could be any cavil at the magistrate’s finding.

The other view, that taken by his Honour on appeal, is that while the appellants were wholly dependent upon the existence of the deceased for their livelihood, in that their right to work and live on ascertained gardens and ground, adhered to his rights as a living member of the village community to use ground; they were only partially dependent upon his earnings as a worker (those earnings being the moneys he received from his employment in Port Moresby). This view depends upon a finding that the sustenance gained from garden produce at Woitape in the circumstances of this case was not part of “the earnings” of the deceased.

The learned appellate judge in his consideration of the case does not seem to have directed his mind at all to the question of the capacity in which the deceased’s father provided sustenance for the applicant and her child.

In our view the decision is unsatisfactory because of the failure to consider this question. We have the power to remit the case for further hearing and this we think is the proper course to follow. Accordingly we allow the appeal and remit the matter to the arbitrator for him to inquire further as to the real basis upon which the applicant and her child derived their subsistence in the village. As we see it if the evidence should show the father of the deceased was in effect acting as his agent then the arbitrator would be justified in holding that there was total dependency. If on the other hand the applicant cannot establish that sort of relationship it is difficult to escape the conclusion reached by the appeal judge.

PRENTICE J: I agree generally with the reasoning of the Chief Justice and my brother Clarkson expressed in their joint judgment. However, to the observation therein “we cannot see anything in the evidence which would justify the learned magistrate in coming to the conclusion that anything done by the deceased’s father for the applicant was probably done more as a duty to the husband than to her” I would wish to add a qualification. This is to the effect of an addendum “unless an inference to that effect were capable of being drawn from the situation at her husband’s death, which then was apparently that the husband’s father had no duty to support her”. With some doubt, I have felt that the evidence as it is may support such an inference. The magistrate appears to have approached the problem with some local background. But as he, in my opinion, was not alert to the particular question which was crucial, I do not know whether he would feel comfortable in making such an inference without some more evidentiary material being available. In the circumstances I do not feel for myself that this Court is justified in making such an inference now. I agree therefore in the course proposed of remitting the case for further hearing.

Appeal allowed. Matter remitted for rehearing by arbitrator.

Solicitor for the appellant: P. J Clay, Crown Solicitor.
Solicitor for the respondent: W. A. Lalor, Public Solicitor.

[cdlxxxv]The effect of s. 5 (1) is set out at p. 428.
[cdlxxxvi][1900] AC. 358.
[cdlxxxvii][1911] AC. 648.
[cdlxxxviii][1910] AC. 229, at p. 239, per Lord Shaw of Dunfermline.
[cdlxxxix][1902] 1 KB. 221.
[cdxc][1902] 1 KB. 221, at p. 223.
[cdxci][1902] 1 KB. 221, at p. 224.
[cdxcii][1945] 1 All ER. 423.
[cdxciii](1964) 64 S.R. (N.S.W.) 486.
[cdxciv][1945] 1 All ER. 423.
[cdxcv][1905] 1 KB. 331, at pp. 334, 335.
[cdxcvi][1956] WCR. (N.S.W.) 30.
[cdxcvii] [1964] PNGLR. 178.