ACW v Acy - [2022] NSWPIC 90

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ACW v Acy

Details

AGLC: ACW v Acy [2022] NSWPIC 90
Case: [2022] NSWPIC 90
Decision Date: 28 February 2022

CaseChat Overview and Summary

The case of ACW v Acy involved a dispute regarding the determination of dependency, apportionment, and payment of a death benefit and interest under the workers compensation scheme. The applicant, ACW, sought to have the respondent, Acy, pay a portion of the death benefit and interest owed to ACW. The matter was heard in the Workers Compensation Court of Victoria. The central legal issues revolved around whether the respondent's contributions to the deceased's support should be taken into account when determining the dependency and apportionment of the death benefit and interest.

The court considered the relevant statutory provisions and case law, including TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd, and Wratten v Kirkpatrick & Ors. The court found that the respondent's contributions to the deceased's support were relevant in determining the dependency and apportionment of the death benefit and interest. The court held that the death benefit and agreed interest should be apportioned between the parties, with the respondent, Acy, required to pay a portion of the amount owed to ACW. The court made orders for payment accordingly.

In conclusion, the court determined that the respondent's contributions to the deceased's support were relevant in calculating the dependency and apportionment of the death benefit and interest. The court ordered the respondent to pay a portion of the death benefit and interest to the applicant, ACW. The court's decision provides guidance on how to approach similar disputes under the workers compensation scheme.

Orders