Aglio v State of New South Wales (NSW Police Force)
[2023] NSWPIC 521
•3 October 2023 10 October 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Aglio v State of New South Wales (NSW Police Force) & Ors [2023] NSWPIC 521 |
| APPLICANT: | Sharyn Aglio |
| FIRST RESPONDENT: | State of New South Wales (NSW Police Force) |
| SECOND RESPONDENT: | Charlize Aglio |
| THIRD RESPONDENT: | Harrison Aglio |
| FOURTH RESPONDENT: | Mia Aglio |
| SENIOR MEMBER: | Elizabeth Beilby |
| DATE OF DECISION: | 3 October 2023 10 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; settlement approval; claim in respect of lump sum death benefits; no dispute that the deceased worker died as a result of an injury arising out of or in the course of employment with the first respondent; first respondent conceded liability to pay the lump sum benefit; parties were able to agree on a proposed apportionment of the lump sum benefit and interest; Held - proposed apportionment was appropriate after considering the circumstances of dependency of each party; orders made in relation to funds management expenses for management of the relevant lump sums by the NSW Trustee and Guardian. |
| DETERMINATIONS MADE: | The Commission determines: 1. The deceased worker, Mark Aglio, died on 27 January 2022, as a result of an injury arising out of or in the course of his employment with the first respondent. 2. The fourth respondent is joined to these proceedings. 3. The applicant, second, third and fourth respondents were all either wholly or partially dependent on the worker for support at the date of his death. 4. There were no other persons dependent, or who claims dependency, on the worker for support at the date of his death. 5. 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 $849,300. 6. The lump sum death benefit payable pursuant to s 25 (1) (a) of the Workers Compensation Act 1987 is to be apportioned as follows: (a) applicant: $679,440. (b) second respondent: $60,300.30; (c) third respondent: $60,300.30, and (d) fourth respondent: $49,259.40. 7. The first respondent is to pay interest on the lump sum benefit as follows: (a) applicant: $16,645.91; (b) second respondent: $1,477.32; (c) third respondent: $1,477.32, and (d) fourth respondent: $1,206.83; 8. The sum payable to the NSW Trustee & Guardian on behalf of the third respondent for funds management fees pursuant to s 25(1A) of the Workers Compensation Act 1987 on the total payable for her of $61,777.62 and calculated in accordance with cl 177 of the Workers Compensation Regulation 2016 is $6,574.54. The first respondent is directed to pay these fees. 9. I direct that the entitlement of the third respondent is to be paid to the NSW Trustee and Guardian (until the age of 18). 10. That pursuant to s 85A (1) of the Workers Compensation Act 1987 the respective lump sum benefit is to be paid directly to the applicant and fourth respondent. 11. The parties have agreed that payment to the second respondent is to be deferred until she reaches the age of 18 in November 2023. There is no additional claim for interest arising from this agreement. 12. The first respondent is to pay weekly payments for and on behalf of the second and third respondents pursuant to s 25(1)(b) of Workers Compensation Act 1987 to the applicant in accordance with s 31(1)(a) of the Workers Compensation Act 1987. 13. The first respondent is to pay funeral expenses pursuant to s 26 of the Workers Compensation Act 1987. 14. The first respondent is pay the other parties costs as agreed or assessed. Such costs are determined to be ‘complex’ and a 15% uplift is appropriate for all parties. |
STATEMENT OF REASONS
BACKGROUND
On 27 January 2022 Mr Mark Aglio (the deceased) died following a prolonged battle with a psychiatric condition. There is no doubt that Mr Aglio had a close and loving relationship with the applicant and each of the dependant respondents.
The State of NSW (NSW Police Force) (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).
Mr Aglio was married at the time of his death to the applicant. He was also father to the second to fourth respondents.
The only substantive issues for determination at the listed arbitration 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 29 September 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, and
(b) Replies to the Application to Resolve a Dispute.
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. They had a close marital relationship. Her evidence outlines the support the deceased gave to her which included financial dependency together with household and domestic assistance.
The second respondent is the daughter of the deceased (being born in 2005) and has completed secondary school and is actively seeking employment. She resides in the family home.
The second respondent reaches the age of 18 in November 2023. She has requested that any apportionment given to her is deferred until she reaches the age of 18. She does not seek the payment of any additional interest in this respect.
The third respondent is the son of the deceased (being born in 2007) and is currently a
full time student. He suffers from a condition affecting his eyes which can cause headaches and light sensitivity. He also lives in the family home and was financially dependant upon the deceased as at the date of death.The fourth respondent is the daughter of the deceased (being born in 2000). She received financial assistance from her mother and the deceased to assist her with her expenses whilst studying. In addition, she was also provided with ad hoc assistance such as payment for a car purchase and other 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 (and deferral of payment in respect of the second respondent). The apportionment recognises the filed evidence which illustrates the dependency each party had on the deceased and their respective ages.
I understand that the apportionment is either equal or near to with respect to the children of the deceased. Whilst it could be arguable that the younger the dependant the greater entitlement, in this case, the applicant continues to provide accommodation and support for her two youngest children. There is also an argument in favour of parity amongst the children of 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, Mark Aglio, died on 27 January 2022, as a result of an injury arising out of or in the course of his employment with the first respondent.
The fourth respondent is joined to these proceedings.
The applicant, second, third and fourth 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.
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 $849,300.
The lump sum death benefit payable pursuant to s 25 (1) (a) of the Workers Compensation Act 1987 is to be apportioned as follows:
(a) applicant: $679,440
(b) second respondent: $60,300.30;
(c) third respondent: $60,300.30, and
(d) fourth respondent: $49,259.40.
The first respondent is to pay interest on the lump sum benefit as follows:
(a) applicant: $16,645.91;
(b) second respondent: $1,477.32;
(c) third respondent: $1,477.32, and
(d) fourth respondent: $1,206.83.
The sum payable to the NSW Trustee & Guardian on behalf of the third respondent for funds management fees pursuant to s 25(1A) of the Workers Compensation Act 1987 on the total payable for her of $61,777.62 and calculated in accordance with cl 177 of the Workers Compensation Regulation 2016 is $6,574.54. The first respondent is directed to pay these fees.
28. I direct that the entitlement of the third respondent is to be paid to the NSW Trustee and Guardian (until the age of 18).
That pursuant to s 85A (1) of the Workers Compensation Act 1987 the respective lump sum benefit is to be paid directly to the applicant and fourth respondent.
The parties have agreed the payment to the second respondent is to be deferred until she reaches the age of 18 in November 2023. There is no additional claim for interest arising from this agreement.
The first respondent is to pay weekly payments for and on behalf of the second and third respondents pursuant to s 25(1)(b) of Workers Compensation Act 1987 to the applicant in accordance with s 31(1)(a) of the Workers Compensation Act 1987.
The first respondent is to pay funeral expenses pursuant to s 26 of the Workers Compensation Act 1987.
The first respondent is pay the other parties costs as agreed or assessed. Such costs are determined to be ‘complex’ and a 15% uplift is appropriate for all parties.
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