In this case study, the issue before the Personal Injury Commission (the Commission) was whether the deceased worker, Mr Canute, was “in loco parentis” at the time of his death. That is, whether he was acting in the place of a parent for his grandson, Master Kristopher Walsh. The question was whether the grandson was entitled to lump sum compensation and an ongoing weekly payment as a child of the deceased under the Workers Compensation Act 1987.
Background
The deceased worker’s widow, Ms Canute, deposed before the Commission that, at the time of her husband’s death, both their biological son and daughter, Jaydon and Brooke, and grandson, Kristopher, were residing in the family home. Both Jaydon and Brooke contributed to the rent.
At the time of Mr Canute’s death in May 2021, his daughter, Brooke, and grandson, Kristopher, were residing at the family home. The relationship between Brooke and Kristopher’s father, Mr Walsh, was described before the Commission as ‘on and off’, and not stable. Brooke was deposed before the Commission that she relied upon her mother and the deceased to provide Kristopher with financial assistance and support.
The fourth respondent, being Kristopher by way of Tutor, Ms Bobie Jones, submitted that the deceased stood in the role of father to Kristopher.
Before the Personal Injury Commission
Section 25 (5) of the Workers Compensation Act 1987 (NSW) provides the following definitions:
“child of the worker means a child or stepchild of the worker and includes a person to whom the worker stood in the place of a parent.
“dependent child of the worker means a child of the worker who was wholly or partly dependent for support on the worker.”
Member Beilby referred to the authority of James Allen Rose-Barnett & Ors by their representative Sharyn Gaye Rose v T A Edison Pty Ltd [2008] NSWWCCPD 10, which discussed the meaning of “in place of the parent”. Deputy President Roche [at 46] stated that:
“46. Having regard to the above authorities and the beneficial nature of the workers’ compensation Acts, it is my view that a worker is in the place of a parent where he or she accepts, in a real and substantial way, the responsibilities of a parent to provide for the care, maintenance and upbringing of the child concerned. The provision of shelter, food and clothing (Roser) will be an important and often a critical factor, but it is equally important to consider the circumstances in which the worker provides the shelter, food and clothing and the nature of the relationship the worker has with the child. The nature of a parental relationship “is complex and includes more than financial support” (Chartier, at [43]). A generous relative may provide financial support for a child, but not be in the place of a parent. To come within the terms of section 4 of the 1998 Act the worker must also assume responsibility for other aspects of the child’s upbringing, as a parent would.”
Member Beilby declared that, although there was no doubt that the relationship between Brooke and Kristopher’s father, Aidan, was at times fractured, she did not accept that he was an ‘absent father’ as submitted by the fourth respondent. Furthermore, although the deceased worker and his spouse contributed to the welfare of their grandson, this did not meet the test of standing in the parent’s place (per Deputy President Roche in James Allen Rose-Barnett).
