Abbott v VIP Steel Packaging Pty Ltd & Ors
[2023] NSWPIC 594
•8 November 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Abbott v VIP Steel Packaging Pty Ltd & Ors [2023] NSWPIC 594 |
| APPLICANT: | Maureen Abbott |
| FIRST RESPONDENT: | VIP Steel Packaging Pty Ltd |
| SECOND RESPONDENT: | Benjamin Abbott |
| THIRD RESPONDENT: | Felicity Pearce |
| FOURTH RESPONDENT: | Cassandra Abbott |
| FIFTH RESPONDENT: | Warren Abbott |
| SENIOR MEMBER: | Elizabeth Beilby |
| DATE OF DECISION: | 8 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; application for lump sum death benefit; parties were able to propose Consent Orders so far as apportionment of the lump sum benefit pursuant to section 25(1)(a) was concerned together with interest; proposed apportionment assessed as appropriate by the Senior Member; Senior Member made findings that no other person could be considered dependant at the relevant time; TNT Group 4 Pty Ltd v Halioris applied; Held – orders made in accordance with proposed Consent Orders. |
DETERMINATIONS MADE: | The Commission determines: 1. The deceased worker, Kevin Abbott, died on 25 August 2021, as a result of an injury arising out of or in the course of his employment with the applicant. 2. The applicant, second, third, fourth and fifth respondents were all either wholly or partially dependent on the worker for support at the date of his death. 3. There were no other persons dependent, or who claims dependency, on the worker for support at the date of his death ( this includes the sixth respondent). 4. The first respondent is liable for payment of the lump sum death benefit pursuant to s 25 (1) (a) of the Workers Compensation Act 1987 in the amount of $838,750. 5. The lump sum death benefit payable pursuant to s 25 (1) (a) of the Workers Compensation Act 1987 is to be apportioned as follows: i. applicant $671,000; ii. second respondent: $41,937.50; iii. third respondent: $41,937.50, and iv. fourth respondent: $41,937.50. v. fifth respondent: $41,937.50 6. The first respondent is to reimburse the applicant $7,400 in respect of funeral expenses. 7. Award for the first respondent in relation to interest. 8. Pursuant to s 85A (1) of the Workers Compensation Act 1987 the lump sum benefit is to be paid directly respectively to the applicant and each dependent respondent. |
STATEMENT OF REASONS
BACKGROUND
On 25 August 2021 Mr Kevin Abbott (the deceased) died. Mr Abbott had previously injured is left knee in 2006 and had undergone a total left knee replacement in 2013. He developed complications following surgery which included an infection.
Mr Abbott was admitted to Nepean Hospital on 12 August 2021 and contracted COVID, which sadly had fatal consequences.
Mr Abbott was married to the applicant and they shared one child together, the fifth respondent. He had previously been married and there were three children born in that relationship (the second to fourth respondents).
The sixth respondent is the younger brother of the deceased and he does not wish to be considered as a having any dependency upon the deceased as at the date of death.
VIP Steel Packaging Pty Ltd (the first respondent) has admitted liability in respect of the death and is liable to pay compensation pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act) (the lump sum death benefit).
The only substantive issues for determination at the preliminary conference in this matter were the questions of dependency, apportionment of the death benefit and interest.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) dependency at the time of death;
(b) apportionment of the lump sum death benefit, and
(c) interest.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The claim was listed in the Personal Injury Commission (Commission) for preliminary conference on 19 October 2023. The parties were able to agree to a proposed resolution of the matter at that time.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Replies to the Application to Resolve a Dispute, and
(c) Application to Admit Late Documents dated 4 August 2023.
Dependency
A dependent is defined in s 4 of the Workplace Injury Management and Workers Compensation Act 1998 to include persons who were “wholly or in part dependent for support on the worker at the time of the worker’s death”.
A reasonable expectation that the deceased would provide future support can satisfy the concept of dependency.[1]
[1] TNT Group 4 Pty Ltd v Halioris (1987) 8 NSWLR 486 at [490].
The applicant was married to the deceased at the time of his death. The applicant’s evidence outlines the support the deceased gave to her which included financial dependency together with household and domestic assistance.
The children of the deceased are all adults and are living independently (though the fifth respondent lives on the same property as her mother in a granny flat).
All adult respondents have provided evidence of their respective dependency upon the deceased as at the date of death. They all appeared to be living largely independently, which is not surprising given their respective ages.[2]
[2] The youngest child being born in 1987.
There is no doubt that the applicant was significantly dependent upon the deceased as at the time of death. They were in a happy marital relationship and lived together sharing expenses.
I find that all respondents were either partially or totally dependent upon the deceased as at the date of death and they would have expected continued support financially but for his death.
I therefore make orders as sought by the parties in relation to the proposed apportionment The apportionment recognises the filed evidence which illustrates the dependency each party had on the deceased.
Interest
A claim was made for interest on the lump sum benefit.
The parties were able to agree on the entitlement to interest and this is reflected in the orders.
Orders
The deceased worker, Kevin Abbott, died on 25 August 2021, as a result of an injury arising out of or in the course of his employment with the applicant.
The applicant, second, third, fourth and fifth respondents were all either wholly or partially dependent on the worker for support at the date of his death.
There were no other persons dependent, or who claims dependency, on the worker for support at the date of his death ( this includes the sixth respondent)..
The applicant is liable for payment of the lump sum death benefit pursuant to s 25 (1) (a) of the Workers Compensation Act 1987 in the amount of $838,750.
The lump sum death benefit payable pursuant to s 25 (1) (a) of the 1987 Act is to be apportioned as follows:
i) applicant: $671,000;
ii) second respondent: $41,937.50;
iii) third respondent: $41,937.50;
iv) fourth respondent: $41,937.50, and
v) fifth respondent: $41,937.50
The first respondent is to reimburse the applicant $7,400 in respect of funeral expenses.
Award for the first respondent in relation to interest.
Pursuant to s 85A (1) of the 1987 Act the lump sum benefit is to be paid directly respectively to the applicant and each dependent respondent.
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