Aircair Aviation Moree Pty Ltd v Dillon
[2022] NSWPIC 746
•9 December 2022
| 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 the rate of 4.6% b. From 2 November 2022 to 6 December 2022 at the rate of 4.85%, and c. From 7 December 2022 to date at the rate of 5.1%. NOTATION: A. The Commission notes the deceased’s funeral expenses have been reimbursed by the respondent. |
STATEMENT OF REASONS
On 4 December 2021, Mr Harry Peter Edward Dillon (the deceased) was fatally injured in the course of his employment with Aircair Aviation Moree Pty Limited (the applicant).
Liability in respect to the deceased’s death has been accepted.
At the date of his death, the deceased was unmarried and had no children.
The respondents are the applicant’s parents and there is no issue that at the date of his death they were dependent on him for support.
There is no issue that at the dated of the deceased’s death, the relevant benefit payable upon the death of a worker pursuant to section 25 of the workers Compensation Act 1987 (the 1987 Act) was $849,300.
ISSUES FOR DETERMINATION
The parties agree the only issues in dispute are the apportionment of the death benefit and the date from which interest is payable on the benefit sum.
The parties agree the respondents should each receive half of the benefit sum, however, it is necessary for the Commission to approve any proposed settlement.
PROCEDURE BEFORE THE COMMISSION
The parties attended a preliminary conference on 8 December 2022 . 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 note the parties have reached an in principle agreement save for the question of the date from which interest is payable.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
a. Application in Respect of Death of Worker (the Application) and attached documents;
b. Reply of the first respondent and attached documents, and
c. Reply of the second respondent and attached documents.
Oral Evidence
There was no oral evidence called in the proceedings.
FINDINGS AND REASONS
Payment of death benefit
The evidence filed with the each of the Replies discloses no one other than the respondents was dependent on the deceased at the date of his death. The deceased’s grandfather, sister and girlfriend each disclose they were not dependent on the deceased and do not wish to make a claim for a portion of the benefit. I accept their evidence.
I also accept the respondents’ uncontested statement evidence as to their dependency on the deceased at the time of his death.
I accept the evidence discloses no person other than the respondents was dependent on the deceased at the date of his death, and I find accordingly.
The parties submitted that 50% of the applicable death benefit should be paid to each of the respondents, and I accept those submissions.
Interest
The parties agree the appropriate rate of interest payable in relation to this matter is 2% greater than the Reserve Bank of Australia cash rate from time to time. At the preliminary conference, Mr Harris for the applicant
The dispute in this matter concerns the date on which the payment of interest should commence. Mr Hartstein for the respondents submitted that date should be 18 August 2022, being the date on which the respondents made a claim in their capacity as legal personal representatives of the deceased and as persons who had paid funeral expenses. Mr Hartstein submitted that claim was sufficient to ground an order for payment of interest from that date, as from this point in time, the matter was in the hands of the applicant for payment.
For the applicant, Mr Harris submitted interest must only be payable once a claim has been duly made (per s109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)). He submitted that, as here, where a claim for payment of the death benefit is made on the basis of dependency, the date of that claim being duly made must be when the respondents provided full particularization of their claim of dependency.
Mr Harris relied on the decision of President Judge Keating in Kaur v Thales Underwater Systems [2011] NSWWCCPD 6, in which his Honour dealt with the question in issue in this matter, and held interest was only payable from the time the evidence and full particulars of dependency was served (in that case, at the arbitration hearing itself).
The respondent also noted Kaur has been followed in numerous decisions within the Commission’s jurisdiction, including by Member Wynyard in Mudgee Explorer Tours Pty Ltd v Clarke [2021] NSWPIC 41, where Member Wynyard helpfully set out a number of authorities at [79]-[81] dealing with the question of the time from which interest is payable.
On balance, I accept Mr Harris’ submission. The email of 18 August 2022 which the respondents rely upon as the starting date of their claim for interest itself acknowledges the statements of the respondents were still to be served. In my view, it is the provision of those statements on 17 October 2022 which constitutes the full particularization of the claim by them.
This being so, and consistent with the decision in Kaur and the line of authorities which flow from it, it follows the claim for interest should commence on 17 October 2022, and accordingly the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.
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