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Shao Wen Zheng v Guo Yong Yang & Ors [ULIS] [2008] NSWWCCPD 144. Roche DP.

"A child can be dependent for support on both parents and the obligation on each parent to provide support is joint and several: Coles Myer Ltd v Rudzinski [2006] NSWCA 161; McCaffery's Management PL v Pimlott (1995) 12 NSWCCR 360; Holdlen PL v Walsh [2000] NSWCA 87). In these circumstances, Mr Zheng is entitled to recover compensation on the basis that his child was and is dependent for support on him".

Tilecorp PL v Sheppard [2008] NSWWCCPD 97. Roche DP.

The 1998 Act s 4 definition of dependants "wholly or in part dependent" applied to death cases.

In [28]: "The correct test for dependency in a claim for weekly compensation, whether under ss 37, 38 or 40, is that set out in s 37(4), namely, a worker will be entitled to additional weekly compensation for his or her child or such other person identified in s 37(4), if that child is 'totally or mainly dependent for support on the worker at the date compensation becomes payable'.

"It would be anomalous and unworkable to apply one test for dependency - 'wholly or in part' - when a worker is receiving compensation under ss 38 or 40 and a different test - 'totally or mainly' - when the worker is receiving compensation under s 37.

"Such an approach would lead to dependency being determined on the basis of the nature of the worker's incapacity, something never intended by the legislation. Dependency is determined from the perspective of the person alleged to be dependent and is not determined by whether the worker's incapacity is total or partial."

Principles exposed in death dependency cases were also relevant to incapacity claims.

"So much is clear from the Court of Appeal's decision in Coles Myer Ltd v Rudzinski [2006] NSWCA 161, where the Court discussed and applied the principles in Pimlott and Holdlen - both death claims where the Court considered dependency under s 4 of the 1998 Act - to a claim involving weekly compensation.

"Those cases establish that the obligation of each parent to support a child is joint and several, and a child may be totally dependent upon one parent notwithstanding that he or she is totally dependent also upon the other parent (per Meagher JA, McCaffery's Management PL v Pimlott (1995) 12 NSWCCR 360 at 364B) and that 'total dependence is not incompatible with the receipt of support from someone else' (per Giles JA, Holdlen Pty Ltd v Walsh [2000] NSWCA 87 at 642)," the deputy president said [infra 36].

"The fact that Mr Sheppard and Ms Wornes do not live together is not determinative of the question of dependency. A child can be totally dependent on a non-custodial parent: Holdlen, Rudzinski and Aafjes v Kearney [1976] HCA 5; (1994) 180 CLR 199, "

Mr Roche also cited Campbell v Department of Community Services (2000) 19 NSWCCR 336 and So v So [2004] NSWCA 67.

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