Ali Kanj v Nonabel Concrete Pty Ltd

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Ali Kanj v Nonabel Concrete Pty Ltd [2018] NSWWCCPD 43
APPELLANT:	Mayssoun Ali Kanj
FIRST RESPONDENT:	Nonabel Concrete Pty Ltd
SECOND RESPONDENT:	Fatme Obeid
THIRD RESPONDENT:	Ali Jamal
FOURTH RESPONDENT:	Sari Jamal
INSURER:	AAI LTD trading as GIO – Agent for the Worker’s Compensation Nominal Insurer
FILE NUMBER:	A2-2125/17
ARBITRATOR:	Mr B Batchelor
DATE OF ARBITRATOR’S DECISION:	22 May 2018
DATE OF APPEAL DECISION:	4 October 2018
SUBJECT MATTER OF DECISION:	Admission of new evidence – D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 applied; dependency; s 25(1) of the WorkersCompensation Act 1987 (the 1987 Act) –principles in Henderson v Foxworth Investments Ltd [2014] UKSC 41; SLT 775; 1 WLR 2600 applied; the exercise of discretion in apportioning the compensation payable in accordance with s 29 of the 1987 Act – Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	Crowther Sim Lawyers
First Respondent:	McCabe Curwood
Second Respondent:	Slater and Gordon Lawyers
Third Respondent:	Self-represented
Fourth Respondent:	Turner Freeman
ORDERS MADE ON APPEAL:	1.    The Certificate of Determination dated 22 May 2018 is confirmed.

INTRODUCTION

1. These proceedings concern claims against Nonabel Concrete Pty Ltd (Nonabel) in respect of the death of Souhayb Jamal (the deceased). The deceased died on 28 March 2017 as a result of injury received in the course of his employment with Nonabel on 27 March 2017.

2. The claims were for the lump sum death benefit provided for in s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act), which was $765,650 as at the date of death.

3. Mr Ali Jamal, Ms Mayssoun Ali Kanj (also referred to as Ms Mayssoun Al Kanj), Mrs Fatme Obeid and Ms Sari Jamal all alleged that they were at least partly dependent on the deceased at the date of death.

4. This appeal, which is brought by Ms Ali Kanj, is an appeal from a decision of Arbitrator Batchelor dated 22 May 2018 which is the same decision that was the subject of appeal in Jamal v NonabelConcrete Pty Ltd,[1] brought by Mr Ali Jamal.

   [1] [2018] NSWWCCPD 42 (Jamal v Nonabel).

BACKGROUND

1. Ms Ali Kanj was the deceased’s sister. Ms Sari Jamal was also a sister of the deceased. Mr Ali Jamal is the deceased’s father. Mrs Obeid, the deceased’s mother, was previously married to Mr Jamal. They had separated more than twenty years prior to these proceedings.

2. There were a number of other siblings of the deceased and as Mr Jamal had remarried, there were also seven half siblings. None of those other siblings claimed dependency.

3. Ms Ali Kanj was the only claimed dependant living in Australia. Each of the remaining prospective dependants live in Lebanon. Mrs Obeid and Ms Jamal resided together.

4. The deceased had been employed with Nonabel for only about one week when the injury occurred,…