Aircair Aviation Moree Pty Ltd v Dillon - [2022] NSWPIC 746

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Aircair Aviation Moree Pty Ltd v Dillon & Ors [2022] NSWPIC 746
APPLICANT:	Aircair Aviation Moree Pty Ltd
RESPONDENT:	Nicola Catherine Milnes Dillon Peter Anthony Dillon
Member:	Cameron Burge
DATE OF DECISION:	9 December 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim in respect of death of worker; both liability and dependency of respondents admitted; the respondents are the parents of the deceased and were dependent upon him for support at the time of his death; the evidence discloses there were no other dependents of the deceased; Held – in the circumstances, an apportionment of 50% of the benefit sum to each of the respondents is appropriate; in circumstances such as this matter where a claim is made and proceedings brought on the basis of dependency, interest on the benefit sum should be payable only from the date where the claim is duly made; Kaur v Thales Underwater Systems followed letter sent from the respondents’ solicitors to the applicant’s insurer in August 2022 in which a claim was made; the respondents’ capacity as legal personal representative was insufficient to ground a claim for interest in circumstances where the claim is ultimately brought on the basis of dependency; in such circumstances, interest is only payable once the claim is duly made, that is from the time full particulars of dependency are provided; the provision of statements by the respondents on 17 October 2022 setting out their dependency on the deceased constituted a duly made claim, and accordingly interest is payable from that date.
determinations made:	The Commission determines: 1. Harry Peter Edward Dillon (the deceased) died on 4 December 2021 as a result of injury arising out of and in the course of his employment with the applicant. 2. The first and second respondents are the parents of the deceased. 3. At the date of the deceased’s death, the respondents were dependent for support upon him. 4. There was no other person dependent upon the deceased for support at the date of his death. 5. The sum payable in respect of the death of a worker at 4 December 2021 pursuant to section 25 of the Workers Compensation Act 1987 was $849,300. 6. Pursuant to section 29 of the Workers Compensation Act 1987, order the applicant pay 50% of the sum referred to in [5] above, being $424,650 to the first respondent in accordance with the instructions for payment provided to the applicant by the first respondent’s solicitors, Messrs Taylor & Scott Lawyers. 7. Pursuant to section 29 of the Workers Compensation Act 1987, order the applicant pay 50% of the sum referred to in [5] above, being $424,650 to the second respondent in accordance with the instructions for payment provided to the applicant by the second respondent’s solicitors, Messrs Taylor & Scott Lawyers. 8. Order the applicant to pay the respondents interest on the sums referred to in [6] and [7] above as follows: a. From 17 October 2022 to 1 November 2022 at…

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.

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Details

Case: [2022] NSWPIC 746
Decision Date: 9 December 2022

CaseChat Overview and Summary

Aircair Aviation Moree Pty Ltd was sued by Dillon, the parents of a deceased worker, regarding a workers' compensation claim. Both parties admitted to the liability and dependency of the respondents. The parents were the only dependents of the deceased at the time of his death. The primary legal issue was determining the appropriate apportionment of the benefit sum between the respondents and whether interest on the benefit sum should be payable from the date the claim was made or from an earlier date.

The court determined that in cases where a claim is made and proceedings brought on the basis of dependency, interest on the benefit sum should only be payable from the date the claim is duly made. The court followed the decision in Kaur v Thales Underwater Systems, holding that the letter sent by the respondents' solicitors to the applicant's insurer in August 2022 constituted a claim. The court also held that the respondents' capacity as legal personal representatives was insufficient to ground a claim for interest in circumstances where the claim is ultimately brought on the basis of dependency. Interest is only payable once the claim is duly made, that is, from the time full particulars of dependency are provided. The provision of statements by the respondents on 17 October 2022 setting out their dependency on the deceased constituted a duly made claim, and accordingly, interest is payable from that date.

In conclusion, the court found that an apportionment of 50% of the benefit sum to each of the respondents was appropriate, given that they were the only dependents of the deceased. Interest on the benefit sum should be payable from 17 October 2022, the date the respondents' solicitors provided full particulars of dependency in their statements. The court's decision provides clarity on the calculation of interest in workers' compensation claims and the circumstances under which it is payable.

Orders