Abi v River Rotor Works Pty Ltd
[2021] NSWPIC 148
•30 April 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | ABI v River Rotor Works Pty Ltd [2021] NSWPIC 148 |
| APPLICANT: | ABI |
| RESPONDENT: | River Rotor Works Pty Ltd |
| MEMBER: | Brett Batchelor |
| DATE OF DECISION: | 30 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Application by employer for payment of lump sum death benefit as a result of death of worker (the deceased); respondent is deceased’s mother; finding that the respondent was wholly or in part dependent for support on the deceased at the time of his death and that there are no other persons who were wholly or in part dependent for support on the deceased at the time of his death; determination pursuant to section 29(1A) of the 1987 Act that the lump sum death benefit is not apportioned; determination pursuant to section 85A(1)(a) of the 1987 Act that the applicant is to pay to the respondent the lump sum death benefit. |
| DETERMINATIONS MADE: | 1. The deceased died on 3 August 2020 as a result of injury on 31 July 2020 arising out of or in the course of his employment with the applicant. 2. The applicant is liable for the payment of the lump sum death benefit of $827,400 payable pursuant to s 25(1)(a) of the Workers Compensation Act 1987 as a result of the death of the deceased. 3. The respondent was wholly or in part dependent for support on the deceased as at the time of his death. 4. There are no other persons who were wholly or in part dependent for support on the deceased as at the time of his death. 5. Pursuant to s 29(1A) of the Workers Compensation Act 1987 the lump sum death benefit is not apportioned. 6. Pursuant to s 85A(1)(a) of the Workers Compensation Act 1987 the applicant is to pay to the respondent the lump sum death benefit of $827,400. |
STATEMENT OF REASONS
BACKGROUND
The deceased died on 3 August 2020 as a result of injury sustained on 31 July 2020 arising out of or in the course of his employment with River Rotor Works Pty Ltd (the applicant) when the helicopter he was piloting crashed.
On 26 February 2021 Employers Mutual NSW Ltd, as agent for NSW
Workers Compensation Nominal Insurer, accepted liability for payment of the lump sum death benefit of $827,400 payable by the applicant pursuant to s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act).
The applicant lodged with the Personal Injury Commission an Application in Respect of Death of a Worker dated 12 March 2021 (the Application) in which it refers to the claim for lump sum compensation and seeks:
(a) apportionment of the lump sum death benefit pursuant to s 29 of the 1987 Act, and
(b) an order authorising payment of compensation to the applicant [sic, respondent] or some other person pursuant to s 85A of the 1987 Act.
ABI (the respondent), the mother of the deceased, is named in the Application as a dependant of the deceased.
ISSUE FOR DETERMINATION
The parties agree that the only issues remaining for determination are:
(a) if the respondent was wholly or in part dependent for support on the deceased at the time of his death;
(b) whether there is any person other than the respondent who was wholly or in part dependent for support on the deceased at the time of his death, and
(c) if the Commission should make an order authorising payment of compensation to the respondent or some other person pursuant to s 85A of the 1987 Act.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I am satisfied that the parties have had sufficient opportunity to explore settlement. The applicant seeks determination of the issues referred to in [5] above.
The parties attended a conciliation/arbitration on 28 April 2021 conducted by telephone conference. Mr S Harris, solicitor, appeared for the applicant. Mr Cullenward, solicitor appeared for the respondent who attended on a separate line.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents, and
(b) Reply and attached documents.
FINDINGS AND REASONS
Dependants
The death certificate of the deceased is attached to the Application[1]. It appears therefrom that the deceased was never married nor did he have any children.
[1] Application p 2.
Attached to the Reply are statutory declarations of the respondent dated 3 April 2020[2] and the deceased’s sister, dated 3 April 2021[3].
[2] Reply p 7.
[3] Reply p 5.
In her declaration the deceased’s sister confirms that she is the daughter of the respondent and the respondent’s husband who died in 1992. There are no other siblings apart from the deceased. The deceased’s sister is 33 years of age and attended boarding school and university until 2010. She lived independently at different locations from 2006 until she married her husband in 2013. The deceased’s sister and her husband have three young children ranging in age from 6 years to 21 months, and have lived on a farm near Condoblin, NSW, since 2019. She has worked either casually, part time or full time since 2006 with intermittent time off for maternity leave or travel. She is currently securely employed as a registered nurse.
The deceased’s sister states that she had not asked the deceased for any financial assistance or otherwise. She never needed assistance from him, did not ask for assistance nor did the deceased offer it. She was close to her brother and despite that closeness was not dependent on him for anything. The deceased’s sister states that her mother was very dependent on the deceased for work on the farm, helping with the buying and selling of sheep and machinery, and doing all of the big heavy jobs that she could not manage. This has been the case for many years, particularly with advancing age. The deceased’s sister does not rely on any of her family for any money or assistance or otherwise, but in the past has had the benefit of monies loaned to her by her mother, which have been repaid. She does help her mother on the farm on occasions.
The deceased’s sister states that she was not dependent upon her brother for support and does not seek to make a claim for any share of the lump sum death benefit payable pursuant to s 25 of the 1987 Act. She has chosen not to obtain independent legal advice notwithstanding her understanding that she may or may not be entitled to any benefit under the current proceedings. She believes that any money distributed from the proceedings should go to her mother.
The respondent in her statutory declaration dated 3 April 2021 confirms that her daughter has been independent of her and has had no dependency on her, financial or otherwise, since her marriage in 2013. Similarly, her belief is that her daughter was not wholly or partly dependent for support on the deceased at the time of his death.
ABI states the property, on part of which she runs sheep and on which she resides, was transferred into the name of the deceased in 2014 by her mother-in-law who owned it at that time. ABI subsequently leased it from the deceased for a nominal rental. She then subleased a large portion thereof and continues to run sheep on the part of the property retained by her. ABI confirms that she was reliant upon the deceased to tackle the bigger, heavier jobs on the property, help with the use and servicing of machinery, advise on sheep management, pasture improvement, emerging markets and trends, and to accompany her on field trips or field days and on machinery buying trips. With her son’s support the respondent felt more confident in carrying on the sheep management and property enterprise.
The respondent states that she is not aware of any other person who was dependent on the deceased at the time of his death or anyone else who may have had a reasonable expectation of support, financial or otherwise, from the deceased at the time of his death or in the future.
The respondent requests that the lump sum death benefit be paid directly to her pursuant to s 85A of the 1987 Act rather that the NSW Trustee and Guardian.
Apportionment
Having regard to the evidence summarised above, I am satisfied that there are no persons other that the respondent who were wholly or in part dependent for support upon the deceased at the time of his death. I am satisfied that the respondent was wholly or in part dependent for support on the deceased at the time of his death. Accordingly, pursuant to s 29(1A) of the 1987 Act, the lump sum death benefit is not to be apportioned.
Pursuant to s 85A(1)(a) of the 1987 Act the lump sum death benefit is to be paid to the respondent.
SUMMARY
The deceased died on 3 August 2020 as a result of injury on 31 July 2020 arising out of or in the course of his employment with the applicant.
The applicant is liable for the payment of the lump sum death benefit of $827,400 payable pursuant to s 25(1)(a) of the 1987 Act as a result of the death of the deceased.
The respondent was wholly or in part dependent for support on the deceased as at the time of his death.
There are no other persons who were wholly or in part dependent for support on the deceased as at the time of his death.
Pursuant to s 29(1A) of the 1987 Act the lump sum death benefit is not apportioned.
Pursuant to s 85A(1)(a) of the 1987 Act the applicant is to pay to the respondent the lump sum death benefit of $827,400.
0
0
0