ACW v Acy
[2022] NSWPIC 90
•28 February 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | ACW v ACY & others [2022] NSWPIC 90 |
| APPLICANT: | ACW |
| FIRST RESPONDENT: | ACY |
| SECOND RESPONDENT: | BAC as tutor of ACZ |
| THIRD RESPONDENT: | BAC as tutor of BAA |
| SENIOR MEMBER: | Glenn Capel |
| DATE OF DECISION: | 28 February 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Death claim; determination of dependency, apportionment, and payment of death benefit and interest; TNT Group 4 Pty Limited v Halioris; Kaur v Thales Underwater Systems Pty Ltd; Wratten v Kirkpatrick & Ors discussed and applied; Held- death benefit and agreed interest apportioned and orders for payment. |
| DETERMINATIONS MADE: | 1. The deceased worker, ACX, died on 17 September 2020 as a result of injuries sustained during the course of his employment with the first respondent. 2. ACW, ACZ and BAA were wholly dependent for support upon the deceased at the date of death. 3. The deceased had no other persons dependent on him. 4. The applicant is liable for the payment of lump sum compensation and interest. The Commission orders: 5. The names of the second and third respondents are amended to BAC as tutor of ACZ and BAC as tutor of BAA respectively. 6. The lump sum compensation of $827,400 payable pursuant to section 25(1)(a) of the Workers Compensation Act1987 is to be apportioned in accordance with section 29 of the Workers Compensation Act1987 as follows: (a) ACW - $579,180 (70%); (b) ACZ- $124,110 (15%), and (c) BAA - $124,110 (15%). 7. Interest payable in the agreed sum of $7,000 pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act1998 is to be apportioned as follows: (1) ACW - $4,900 (70%); (2) ACZ- $1,050 (15%), and (3) BAA- $1,050 (15%). 8. The first respondent to pay lump sum compensation pursuant to section 85A(1)(a) of the Workers Compensation Act1987 and interest pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act1998 in the sum of $584,000 to ACW. 9. The first respondent to pay lump sum compensation pursuant to section 85A(1)(a) of the Workers Compensation Act1987 and interest pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act1998 in the sum of $125,160 to the New South Wales Trustee and Guardian to hold on trust pursuant to section 85(1)(c) of the Workers Compensation Act1987 until ACZ attains the age of 18 years. 10. The first respondent to pay lump sum compensation pursuant to section 85A(1)(a) of the Workers Compensation Act1987 and interest pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act1998 in the sum of $125,160 to the New South Wales Trustee and Guardian to hold on trust pursuant to section 85(1)(c) of the Workers Compensation Act1987 until BAA attains the age of 18 years. |
STATEMENT OF REASONS
BACKGROUND
The deceased worker, ACX, died on 17 September 2020 as a result of injuries sustained during the course of his employment with ACY (the first respondent).
ACW (the applicant) submitted a notice of a fatality claim on 21 December 2020 to Employers Mutual Ltd (the insurer). The insurer sought particulars from the applicant’s solicitor via email on 21 January 2021, 28 January 2021 and 1 February 2021. The applicant’s solicitor responded to the particulars on 4 March 2021.
The insurer retained Quantumcorp to investigate the claim and the investigators sent an email to the applicant’s solicitor on 12 April 2021. The investigators requested that they be allowed to interview the applicant to obtain a statement. It seems that this did not occur. The investigators then submitted a list of questions on or about 20 April 2021. The applicant responded to these questions, but it is unclear when this was provided.
On 26 May 2021, the investigators requested that the applicant provide a statutory declaration regarding various matters relevant to the claim.
On 2 September 2021, the insurer accepted liability pursuant to ss 25(1)(a) and 26 of the Workers Compensation Act1987 (the 1987 Act), subject to a determination of potential dependants.
The applicant filed an Application in Respect of Death of Worker (the Application) in the Personal Injury Commission (the Commission) on 9 November 2021. The deceased’s daughter, ACZ, was named as the first respondent and his son, and BAA, was named as the second respondent in the Application.
As the children are minors, the names of the first and second respondents will be amended to BAC as tutor of ACZ, and BAC as tutor of BAA respectively.
The applicant seeks apportionment of the lump sum death benefit of $827,400 in accordance with ss 25(1)(a) and 29 of the 1987 Act and interest pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), together with orders authorising payment of the lump sum 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. The parties were advised of the intention to determine the dispute without holding a conciliation conference or arbitration hearing.
At the telephone conference on 14 December 2021, I directed that the dependants file written submissions by 22 December 2021. The parties complied with this direction.
On 22 December 2021, the solicitor for the third respondent sent an email to the Commission and advised that the issue of interest had been resolved between the parties. It had been agreed that the first respondent would pay $7,000. In the circumstances, it was not necessary for the first respondent to file submissions.
It became apparent that the deceased’s eldest daughter may had had a potential claim on the death benefit, so a further telephone conference was scheduled for 27 January 2022.
The applicant’s solicitor sent a letter by registered mail to BAB in Western Australia on 11 January 2022. A copy was also sent via email. She explained the nature of the death benefit claim and suggested that BAB seek legal advice from a NSW practitioner regarding her potential entitlement. She advised that the matter was listed for a telephone conference before me on 27 January 2022.
On 25 January 2022, the applicant’s solicitor wrote and sent an email to BAB. She enquired whether she proposed to make a claim on the death benefit.
On 26 January 2022, BAB sent an email to the applicant’s solicitor. She advised that she had engaged several firms and was waiting to hear back from them. She indicated that she would respond to her request once she had decided. She also provided details of her mobile phone number. BAB did not appear at the telephone conference on 27 January 2022, and a further conference was scheduled for 25 February 2022.
On 15 February 2022, the applicant’s solicitor sent an email to BAB and enquired whether she had obtained legal assistance and whether she intended to make a claim. She reminded BAB about the telephone conference on 25 February 2022.
On 18 February 2022, the applicant’s solicitor sent an email to BAB and confirmed the telephone conference details. She again enquired whether she had legal representation for the conference. There was no response to this email. Attempts to connect BAB to the telephone conference on 25 February 2022 were to no avail, as the call went straight to voice message.
ISSUES FOR DETERMINATION
During the telephone conference on 14 December 2021, I was advised that there was no dispute in respect of dependency, and the parties had agreed that the death benefit should be apportioned as follows:
(a) ACW (70%);
(b) ACZ (15%), and
(c) BAA (15%).
The parties agree that the following issues remain in dispute:
(a) whether there were any persons wholly or partially dependent on the deceased – s 25 of the 1987 Act;
(b) apportionment of the lump sum of $810,050 payable – s 29 of the 1987 Act, and
(c) orders in relation to payment of the compensation and interest – ss 85, 85A(1)(a) and 85A(1)(c) of the 1987 Act.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) Application and attached documents;
(b) First Respondent’s Reply;
(c) Second respondent’s Reply, and attached document;
(d) Third Respondent’s Reply and attached document;
(e) Application to Admit Late Documents received on 9 December 2021;
(f) Application to Admit Late Documents received on 21 December 2021;
(g) Application to Admit Late Documents, attaching an Amended Application, received on 20 January 2022;
(h) Application to Admit Late Documents received on 22 February 2022, and
(i) Application to Admit Late Documents received on 22 February 2022.
Oral evidence
The parties did not seek leave to adduce oral evidence or cross examine any witnesses.
REVIEW OF EVIDENCE
Given the discreet nature of the matters in issue, I will focus my review on the documents that concern dependency and apportionment, rather than any liability documents.
Statements of ACW
ACW provided a statement on 7 October 2021. She advised that she began a relationship with the deceased in 1996. They lived together since 1997 and had joint finances including loans, savings and expenditure. Their properties, vehicles and three businesses were jointly owned. They owned a block of land that would fund their retirement and they had planned to fund their children’s education.
The applicant stated that her husband was responsible for maintaining their house, land and livestock. She had reduced her working hours and now worked three days per week. She was emotionally dependent on her husband, and his death has taken an emotional toll on her health.
The applicant stated that her husband had a daughter with a former partner when he was approximately 20 to 21 years old, and he was required to make child support payments until she was 16 or 18 years old. He did not provide any further assistance as far as she was aware. He never spoke about his former partners or his daughter, and she did not know their names. She understood that the daughter would now be 29 years old.
The applicant stated that their daughter, ACZ, was born in 2005 and their son, BAA, was born in 2007. Her children and other family members were unaware of the existence of the deceased’s other daughter.
The applicant stated that her children were financially, domestically and emotionally dependent on their father. There were no other persons dependent on the deceased. They do not have any health conditions greatly miss their father, particularly ACZ, who was extremely close to her father. Her son attends boarding school, and this has been a huge financial commitment.
The applicant stated that her husband’s father Gordon was deceased and his mother, Tess, who is now 81 years old, resides in Tasmania. Her father is deceased, and her 72 year old mother is a self-funded retiree. Her husband did not provide any financial assistance to his mother or his mother-in-law at the time of his death.
In her statement dated 8 December 2021, the applicant stated that she had three business at the time of her husband’s death. MK4D Firearms has been closed and the first respondent is no longer trading. She has been paying expenses from her wage. She had worked for five days per week, earning $1,288.46 per week, but since her husband’s death, she had worked for only three days per week, earning $877.53 per week in the business, KLAS Business and Accounting.
The applicant stated that her son’s school fees are $30,000 per annum, and he hopes to secure a scholarship so that he can play golf in America. She stated that her daughter wanted to become a veterinary surgeon, and this will involve tertiary study for five years.
The applicant stated that she proposed to repay her loan that currently stands at $110,000 and will use the funds to pay for her current commitments including the fees for her children’s education and she intends to invest the remainder of the funds.
Statement of ACZ
ACZ provided a statement on 20 October 2021. She stated that she is in year 11 at high school and she hopes to study veterinary science at university. She currently works at a veterinary clinic for three days a week under a paid internship.
ACZ stated that she had a very close relationship with her father, who was a good role model. She would seek his advice and relied upon him for emotional support. They shared a mutual love and enjoyment of the outdoors. She would often go with him to work, and they would go camping. He paid her for working on the property and she expected that the financial support that he provided would have continued. She expected that he would have taught her how to drive. She had received counselling following her father’s death and she was still grieving for him.
Statement of BAA
BAA provided a statement on 1 October 2021. He stated that he is currently in year 9 at boarding school. He was really close to his father, and they both were keen golfers. They would play golf after school and on weekends. They would also go shooting on Friday or Saturday nights, and if he had a problem, he would speak to his father about it.
BAA stated that he relied upon his father financially and emotionally. He tried not to think about his passing. He expected that this support would have continued.
Documents
The marriage and death certificates of the deceased, his will, personal and business tax returns, payslips and the birth certificates of his two children are in evidence. This material is consistent with the applicant’s statement.
The second respondent’s solicitor, Mr Calf wrote to Child Support in Melbourne on
14 October 2021 and 22 December 2021, seeking assistance to locate the deceased eldest daughter, BAB. In an email dated 6 January 2022, Child Support advised that it could not locate any records.The Child Support Registrar advised in a letter dated 3 February 2022 that any information relating to the existence of a child support case could not be released.
A Section 50 Search Certificate dated 30 December 2021 disclosed that the deceased had three children, including BAB, whose birth was registered in 1992.
APPLICANT’S SUBMISSIONS
The applicant’s counsel, Mr Grimes, submits that in her statement, the applicant described her past dependency on the deceased and current situation. Her evidence substantiates an entitlement to larger proportion of the death benefit than the entitlements of her children. He submits that the death benefit should be apportioned as follows:
(a) ACW (70%);
(b) ACZ (15%), and
(c) BAA (15%).
Mr Grimes’ submissions made submissions regarding interest, but this issue was resolved by the parties and does not require a determination.
SECOND RESPONDENT’S SUBMISSIONS
The second respondent’s counsel, Mr Gaitanis, submits that he makes no submissions regarding any potential claim that may be agitated by a daughter of the deceased who is not known to the parties and is said to be now aged 29 years. Nothing is known about her or whether she has had any contact with the deceased since the relationship with her mother ceased, or whether she was dependent upon the deceased.
Mr Gaitanis submits that at the time of death of the deceased, it is clear that the applicant and her two children were wholly or partly dependent for support on the deceased. He submits that whilst the ages of the second and third respondent’s slightly differ, there is no distinct difference when assessing their respective entitlements as their needs are similar. Accordingly, they should be treated equally.
Mr Gaitanis submits that the applicant has had to and will continue to carry the financial burden to a much greater extent following her husband’s death, such as mortgage repayments, school fees and tertiary education fees, together with the hiring of labour to undertake the tasks that her husband would have performed around the property.
Mr Gaitanis submits that the second respondent is currently enrolled in Year 11, and she is interested in studying veterinary science after at University. She had a very close relationship with the deceased and they were “like best mates”. She would seek his advice, and he was a good role model. She anticipated that he would teach her how to drive. The deceased paid her for doing work around their property. She relied on him for financial support which she expected that this would have continued.
Mr Gaitanis submits that the proposed apportionment of 15% to the second respondent, and 15% to the third respondent, and 70% to the applicant is appropriate in the circumstances.
THIRD RESPONDENT’S SUBMISSIONS
The third respondent’s counsel, Mr Robinson, submits that the deceased’s 29 year old daughter did not appear to have been wholly or partially dependent on the deceased at the time of his death. The evidence shows that the deceased stopped making child support payments 11 to 13 years ago when this unknown daughter was 16 or 18 years old, and there appears to have been no contact between the deceased and her. Attempts to locate her have been unsuccessful.
Mr Robinson submits that the third respondent was attending high school and he hoped to obtain a scholarship to study at a university in America. The applicant is paying his private school fees and he will likely attend university on a full time basis. His situation is not markedly different to that of his sister. The applicant is now responsible for mortgage payments, school fees and the living expenses of the family. He submits that the second and third respondents should have an equal distribution, leaving 70% of the death benefit for the applicant.
REASONS
Dependency
It was confirmed in Warilla Timber and Hardware Pty Ltd v Newton[1], Albury Real Estate Pty Ltd v Rouseand anor[2] and in Richardson that the term “support” in s 25 of the 1987 Act is not limited to financial support and encompasses other multifactorial aspects including assistance with day to day activities and emotional support.
[1] (1995) 11 NSWCCR 546, [554] to [555].
[2] [2006] NSWWCCPD 139, [45] to [50].
In TNT Group 4 Pty Limited v Halioris[3], McHugh JA stated:
“Dependency is a question of fact: Potts v Niddre & Benhar Coal Co Ltd [1913] AC 531 at 539, 542; Aafjes v Kearney (1976) 50 ALJR 454 at 456, 457 and 459. It is concerned with actual and not theoretical support. A person claiming dependency need not be in actual receipt of support at the date of death. It is enough that, as at that date, he or she had a reasonable expectation of support in the future. Dependency may exist at the date of death although actual support cannot or is unlikely to occur until a future time.”[4]
[3] (1987) 3 NSWCCR 10; 8 NSWLR 486 (Halioris).
[4] Halioris, [489].
Further, in Kaur v Thales Underwater Systems Pty Ltd[5], President Keating stated:
“The question whether there is in fact dependence or reliance at the date of death is not to be answered by looking only to the circumstances as they existed at that date;”[6]
and
“‘past events and future probabilities’ have to be considered. (Aafjes v Kearney 180
CLR 199; ster; 8 ALR 455; 50 ALJR 454, 456, 457 and 459 (Aafjes)).”[7]
[5] [2011] NSWCCPD 6 (Kaur).
[6] Kaur, [126].
[7] Kaur, [148].
I am satisfied that the evidence shows that the second and third respondents were wholly dependent on the deceased at the time of his death. The applicant was employed in the family business, so I am satisfied that she was partly dependent on her husband at the time of his death.
The parties eventually located the deceased’s missing 29 year daughter, BAB. She was advised that she should seek legal advice regarding her potential rights, and she was informed about the two telephone conferences. The operator tried to call her on a number of occasions on 25 February 2022, but the call went straight to voice message. She had ample opportunity to participate in this matter but elected not to do so.
Given the contents of the applicant’s statement, I am satisfied that BAB was not dependent on the deceased at the time of his death.
In the circumstances, I am satisfied there were no other persons wholly or partly dependent on the deceased at the date of death.
Apportionment
In order to apportion the lump sum, it is necessary to review all of the relevant facts disclosed in the evidence. In Wratten v Kirkpatrick[8], Egan A-CCJ stated:
“The exercise of power to determine the correct amount to be apportioned to each dependant requires an examination of all relevant facts including the extent of past dependence, the anticipated future dependence, the ages of the dependants, their health, special needs, lifestyle, etc.”[9]
[8] (1996) 15 NSWCCR 32 (Wratten).
[9] Wratten, [34].
Each case requires an examination of the individual facts as no two matters are identical.
The parties came to a preliminary agreement in relation to apportionment of the lump sum death benefit prior to the telephone conference on 14 December 2021.
I agree that the applicant should be entitled to the greatest proportion of the lump sum, having regard to her dependency, her age, and future needs. This must be weighed up with the dependency of each of the children.
It is always difficult to assess the future expectations of minor children, as any assessment is highly speculative. The children do not currently have any special needs and their ages are not dissimilar.
The applicant would be receiving weekly compensation for her children’s upkeep pursuant to s 25(1)(b) of the 1987 Act and these payments can continue until they each turn 21 years of age. Nevertheless, these payments would hardly cover the cost of their care.
The ages of the two children are similar as are their respective needs and expectations. The parties have obviously put some thought into reaching a preliminary agreement as to apportionment. Having regard to the evidence, I am satisfied that this represents a fair and appropriate apportionment of the death benefit, and I see no reason why I should make a determination inconsistent with that agreement.
Accordingly, I apportion the lump sum payment pursuant to s 29 of the 1987 Act as follows:
(a) ACW - $579,180;
(b) ACZ- $124,110, and
(c) BAA - $124,110.
Interest
The parties agreed to the payment of $7,000 in respect of interest, and this is to be apportioned as follows:
(1) ACW - $4,900 (70%)
(2) ACZ- $1,050 (15%), and
(3) BAA- $1,050 (15%).
FINDINGS
The deceased worker, ACX, died on 17 September 2020 as a result of injuries sustained during the course of his employment with the first respondent.
ACW was partly dependent for support upon the deceased at the date of death.
ACZ and BAA were wholly dependent for support upon the deceased at the date of death.
The deceased had no other persons dependent on him.
The applicant is liable for the payment of lump sum compensation and interest.
ORDERS
The names of the second and third respondents are amended to BAC as tutor of ACZ and BAC as tutor of BAA respectively.
The lump sum compensation of $827,400 payable pursuant to s 25(1)(a) of the 1987 Act is to be apportioned in accordance with s 29 of the 1987 Act as follows:
(a) ACW - $579,180;
(b) ACZ- $124,110, and
(c) BAA - $124,110.
Interest in the agreed sum of $7,000 pursuant to s 109 of the 1998 Act is to be apportioned as follows:
(a) ACW - $4,900 (70%);
(b) ACZ- $1,050 (15%), and
(c) BAA- $1,050 (15%).
The first respondent to pay lump sum compensation pursuant to s 85A(1)(a) of the 1987 Act and interest pursuant to s 109 of the 1998 Act in the sum of $584,000 to ACW.
The first respondent to pay lump sum compensation pursuant to s 85A(1)(a) of the 1987 Act and interest pursuant to s 109 of the1998 Act in the sum of $125,160 to the New South Wales Trustee and Guardian to hold on trust pursuant to s 85(1)(c) of the 1987 Act until ACZ attains the age of 18 years.
The first respondent to pay lump sum compensation pursuant to section 85A(1)(a) of the 1987 Act and interest pursuant to s 109 of the 1998 Act in the sum of $125,160 to the New South Wales Trustee and Guardian to hold on trust pursuant to section 85(1)(c) of the 1987 Act until BAA attains the age of 18 years.
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