Apperley v Ian J and Renae a Forsyth
[2022] NSWPIC 371
•11 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Apperley v Ian J and Renae A Forsyth and Others [2022] NSWPIC 371 |
| APPLICANT: | Amanda Apperley |
| FIRST RESPONDENT: | Ian J and Renae A Forsyth |
SECOND RESPONDENT: | Chase Soper |
THIRD RESPONDENT: | Morgan Soper |
| SENIOR MEMBER: | Kerry Haddock |
| DATE OF DECISION: | 11 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for benefits in respect of death of a worker; liability accepted; apportionment and interest agreed; application that amount apportioned to second respondent be placed in trust established for him; Held - lump sum benefit apportioned in accordance with agreement between applicant, second respondent and third respondent; lump sum benefit and interest payable to second respondent be paid to the trust established for him to be held on trust until he attains the age of 21 years. |
| DETERMINATIONS MADE: | 1. That the worker, Gregory Soper, died on 19 October 2020 as a result of injury arising out of or in the course of employment with the first respondent. 2. That the applicant was partly dependent for support on the worker at the date of his death. 3. That the second respondent was dependent for support on the worker at the date of his death. 5. That the third respondent was partly dependent for support on the worker at the date of his death. 6. That there were no other persons dependent for support on the worker at the date of his death. 7. That the first respondent is liable for payment of lump sum compensation of $834,200. |
| ORDERS MADE: | 1. That the Application in Respect of Death of Worker is amended to join Chase Soper as the second respondent and Morgan Soper as the third respondent. 2. That the Application in Respect of Death of Worker is amended to claim interest on the lump sum compensation. 3. That the applicant is granted leave to rely on Application to Admit Late Documents dated 6 July 2022 and attached document. 4. That the first respondent is to pay to the applicant, pursuant to s 25(1)(a) of the Workers Compensation Act 1987 and s 85A(1)(a) of the Workers Compensation Act 1987, the sum of $542,230. 5. That the first respondent is to pay the sum of $191,866, pursuant to s 25(1)(a) of the Workers Compensation Act 1987, and the interest payable on that sum, to the Chase Gregory Soper Trust Fund, pursuant to s 85A(1)(b) of the Workers Compensation Act 1987, to be held in trust for the second respondent until he attains the age of 21 years. 6. That the first respondent is to pay to the third respondent, pursuant to s 25(1)(a) of the Workers Compensation Act 1987 and s 85A(1)(a) of the Workers Compensation Act 1987, the sum of $100,104. 7. That the first respondent is to pay interest on the lump sum, in the agreed amount of $7,500, to be apportioned between the applicant, the second respondent and the third respondent in the same proportions as the lump sum compensation. |
STATEMENT OF REASONS
BACKGROUND
The worker, Gregory Soper (Mr Soper), died on 19 October 2020 as a result of injuries sustained in the employ of the first respondent, Ian J and Renae A Forsyth.
By letter dated 18 December 2020, the applicant’s solicitors made on her behalf a claim pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act) for death benefits. Ms Apperley (the applicant) claimed to have been dependent for support on Mr Soper. The other dependants were named as the second respondent, Chase Soper, and the third respondent, Morgan Soper, the children of the marriage. I will refer to them by their given names, to avoid confusion, while meaning no disrespect.
On 19 April 2022, the solicitors for the first respondent’s insurer, EML, advised the applicant’s solicitors that the claim had been accepted.
Ms Apperley filed an Application in Respect of Death of Worker (the Application) on 26 April 2022.
The first respondent filed its Reply on 27 May 2022.
On 29 April 2022, delegate of the President, Ms Camp, made directions regarding further conduct of the matter (the directions). They included that Mr Soper’s mother, Ms Margaret Soper, be advised of the proceedings and the potential to make a claim. Any potential dependant referred to in the direction, should he or she seek to make a claim, was to be joined as a respondent.
On or about 20 May 2022, the applicant’s solicitors filed a response to the directions, including a proposed Amended Application, joining Chase and Morgan as respondents.
Both Chase and Morgan filed their Replies on 26 May 2022. They included submissions on apportionment; and in the case of Chase, an executed Trust Deed and documents relating to the establishment of a trust on his behalf.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) the apportionment of the death benefit, and
(b) whether the amount to be apportioned to Chase should be paid to the trust established on his behalf, or to the NSW Trustee and Guardian.
PROCEDURE BEFORE THE COMMISSION (the Commission)
The matter was listed for preliminary conference before me on 6 July 2022. Mr Andrew Parker of counsel, instructed by Mr Rowney and Ms Shain, appeared for the applicant; Mr Studdert appeared for the first respondent; Mr Stanton of counsel, instructed by Mr Legzdin, appeared for the second respondent; and Mr McManamey of counsel, also instructed by Mr Legzdin, appeared for the third respondent. The applicant and Morgan attended. Ms Meek of EML and Ms Dean of iCare also attended.
The Application was amended to include a claim for interest on the lump sum. The parties were able to agree on the amount of interest to be paid. All parties approached that claim in a genuine spirit of goodwill and preparedness to resolve the claim.
I was advised that Ms Soper had provided instructions to solicitors acting on her behalf that she does not claim to have been dependent on Mr Soper, and the applicant’s solicitors were able to provide that evidence.
I directed the applicant’s solicitors to file an Application to Admit Late Documents, attaching evidence as to Ms Soper’s position, on or before 8 July 2022. That evidence was filed on 6 July 2022.
Counsel for the second and third respondents have provided written submissions. Mr Stanton provided very helpful oral submissions at the preliminary conference, directed to the issue of the establishment of a trust for Chase, and I am grateful for his assistance.
None of the other parties wished to be heard on the issue of the establishment of the trust. It is supported by the applicant.
I am satisfied that I have sufficient evidence to allow me to determine the matter “on the “papers” and the parties were advised of my intention to do so on receipt of the evidence relating to Ms Soper’s dependency.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the Application and attached documents;
(b) Reply by first respondent and attached documents;
(c) Reply by second respondent and attached documents, including submissions;
(d) Reply by third respondent and attached documents, including submissions;
(e) Statutory declaration of the solicitor for the second and third respondents regarding potential claim by Ms Soper, and
(f) Application to Admit Late Documents dated 6 July 2022 and attached document, filed by the applicant.
FINDINGS AND REASONS
Evidence
Evidence of the applicant, Amanda Apperley
Ms Apperley’s statement is dated 21 April 2022.
Ms Apperley and Mr Soper were married in 2008. They had two children, Morgan and Chase, who are now aged 19 and 10, respectively.
The family previously lived at a property with Mr Soper’s mother, Ms Soper. At times they lived in other areas in the Shoalhaven region, due to the requirements of Ms Apperley’s work. After Mr Soper’s death, she purchased another property, which is subject to a mortgage.
Sometimes Ms Apperley and Mr Soper worked on the same property, and at other times he would work on other properties in the area. They were a team and used both incomes to run the household and support the kids, wherever they were.
Ms Apperley would say she and Mr Soper were mutually dependent on each other. They had merged their lives to run a family and raise their children together.
After Mr Soper was injured, he required multiple surgical procedures to his ankle. He had to stop working and Ms Apperley needed to care for him. She stopped managing properties for a few months, causing a substantial reduction in her income. She tried to start a business, but it never made a profit.
The family unit suffered as a result of Mr Soper’s injury. They were all reliant on both wages to run the household. Both incomes suffered as a result of his injury.
Ms Apperley returned to work after Mr Soper’s death. She is working part time as a truck driver and running an agistment property, but it is “a slow road back after years out of work”.
Morgan is a second year apprentice, earning a very small amount, and remains dependent on Ms Apperley. Chase is also dependent on her.
Ms Soper had a job, and the family was financially independent from her. Mr Soper was not giving her any money. There were no other family members or other people Ms Apperley was aware of who were dependent on Mr Soper. She believes that she, Morgan and Chase were the only people dependent on him at the time of his injury and death.
Evidence of the second respondent, Chase Soper
Chase has obviously not made a statement, but the Reply filed on his behalf includes an executed Trust Deed, submissions prepared by Mr Stanton, a copy of his 2021 school report and a statement from his solicitor.
Mr Legzdin stated that the applicant desires that the portion of the death benefit apportioned to Chase be placed into a discretionary trust for him, until he reaches the age of 21. He has provided details of the steps taken to establish the trust and the fees payable, along with those that would be payable to the New South Wales Trustee and Guardian.
Evidence of the third respondent, Morgan Soper
Morgan has made a statement dated 4 May 2022.
Morgan stated that he grew up on a 100 acre property. He had a happy childhood and loved living there.
Morgan’s father was very involved in his life. They often rode trail bikes and would play football in the yard. He has very fond and wonderful memories of family holidays.
Morgan was 10 when his father badly injured his leg. “Things really changed and he really changed”. He couldn’t walk properly, and Morgan does not recall him riding bikes after that. He couldn’t play football and on family holidays he barely left the accommodation.
Morgan left school after receiving his school certificate in year 10. He worked with his mother for about six months, before commencing an apprenticeship as a welder. He is now in his second year.
Morgan earns very little as an apprentice and continues to live at home, supported by his parents. He would not have been able to survive financially without their help. He was devastated by his father’s death.
Morgan was and continues to be dependent on his family for assistance. While he never had direct conversations with his parents about them continuing to help him while he was doing his apprenticeship or starting his trade, it was understood that he would still be dependent on them, and they would provide ongoing help with things such as living expenses, including studying, running a car etc. He had and has no plans to move out, as they had always been a close family.
The Reply filed on Morgan’s behalf includes submissions prepared by Mr McManamey.
Evidence of Margaret Soper
There is in evidence an email from solicitors instructed by Ms Soper to the solicitors for the other parties and to the Commission. They advised that they were instructed that Ms Soper did not intend to make a claim in these proceedings.
Legislation
Section 25 of the 1987 Act provides:
“Death of worker leaving dependants
(1) If death results from an injury, the amount of compensation payable by the employer under this Act shall be-
(a) the amount of $750,000 (the ‘lump sum death benefit’), which is to be apportioned among any dependants who are wholly or partly dependent for support on the worker or (if there are no such dependants) paid to the worker's legal personal representative, and
(b) in addition, an amount of $66.60 per week in respect of--
(i) each dependent child of the worker under the age of 16 years, and
(ii) each dependent child of the worker being a student over the age of 16 years but under the age of 21 years.
(2) Payments in respect of a dependent child under subsection (1) (b) shall continue-
(a) except as provided by paragraph (b) - until the child dies or reaches the age of 16 years, whichever first occurs, or
(b) in the case of a dependent child who is a student at the time of the worker's death or after reaching the age of 16 years-until the child dies, reaches the age of 21 years or ceases to be a student, whichever first occurs.
(3) The amount of any weekly payments, or other compensation payable under this Act, shall not be deducted from the amounts referred to in subsection (1) (a) or (b).
(4) If an amount mentioned in subsection (1) (a) at any time after the commencement of this Act-
(a) is adjusted by the operation of Division 6, or
(b) is adjusted by an amendment of this section, the compensation payable under subsection (1) (a) is to be calculated by reference to the amount in force at the date of death.
(4A) If the death of a worker results both from an injury received before the adjustment of an amount mentioned in subsection (1) (a) and an injury received after that adjustment, the worker shall, for the purposes of subsection (1) (a), be treated as having died as a result of the injury received after that adjustment.
(5) In this section--
‘child of the worker’ means a child or stepchild of the worker and includes a person to whom the worker stood in the place of a parent.
‘dependent child of the worker’ means a child of the worker who was wholly or partly dependent for support on the worker.
‘student’ means a person receiving full-time education at a school, college or university.”Section 29 of the 1987 Act provides:
“Apportionment of payments between dependants
(1) The compensation payable under this Division to each dependant of a deceased worker may be apportioned by the Commission or by the NSW Trustee.
(1A) The lump sum death benefit payable under this Division is not to be apportioned if a deceased worker leaves only one dependant (whether wholly or partly dependent on the worker for support) and the whole of the lump sum death benefit is to be paid to that one dependant.
(1B) In apportioning the lump sum death benefit payable under this Division between 2 or more dependants, the whole lump sum death benefit is to be apportioned among those dependants (so that the sum of the apportioned amounts equals the full lump sum death benefit).
(2) Application for apportionment may be made by or on behalf of a person entitled to the compensation-
(a) to the NSW Trustee, or
(b) to the Commission (whether or not an application has been made to the NSW Trustee or the NSW Trustee has made a decision).
(3) The NSW Trustee may decline to deal with an application for apportionment and advise the parties to apply to the Commission.
(4) The NSW Trustee is not to deal with an application for apportionment of compensation if an application for apportionment of the same compensation is before the Commission.
(5) A decision by the NSW Trustee to apportion compensation under this Division is subject to any decision made by the Commission with respect to the matter.
(6) If there are both total and partial dependants of a deceased worker, the compensation may be apportioned partly to the total and partly to the partial dependants.
(7) If a dependant dies-
(a) before a claim under this Division is made, or
(b) if a claim has been made, before an agreement or award has been arrived at or made, the legal personal representative of the dependant has no right to payment of compensation, and the amount of compensation shall be calculated and apportioned as if that dependant had died before the worker.
(8) The regulations may make provision for or with respect to the publication of applications for apportionment and any other matter connected with apportionment.”
Section 85A of the 1987 Act provides:
“85A Payment of benefits to beneficiaries
(1) Despite section 85, the Commission may authorise the payment of compensation referred to in section 85 (1)--
(a) to the person who is entitled to the compensation, or
(b) to such other person, for the benefit of the person entitled to the compensation, as the Commission thinks fit.
(2) Any such payment is to be made in the manner authorised by the Commission.”
SUBMISSIONS
The second and third respondents have provided written submissions, and the second respondent’s oral submissions have been recorded. I will therefore refer to them only briefly.
The applicant, the second respondent and the third respondent have agreed on a proposed apportionment of the lump sum. Counsel for the second and third respondents have provided careful and thorough submissions in support of that proposal.
I see no reason not to approve the apportionment as proposed by the parties, which appears to me appropriate, in view of their circumstances. There is a greater amount apportioned to Chase than to Morgan, given the difference in their ages.
I therefore determine that the lump sum should be apportioned as to 65% to the applicant; 23% to Chase; and 12% to Morgan.
As regards the proposal that the amount apportioned to Chase should be placed in the trust established for him, I have reviewed the Trust Deed, and, as I have noted, have had the benefit of counsel’s submissions.
The main points made by Mr Stanton in his oral submissions were that the funds held in trust would not be paid to Chase until he is 21 years old; the trustee has a broad discretion to advance funds for purposes such as his education, which is sensible and flexible; the funds may only be invested in a very conservative manner; the trustee is a local accountant with 20 years’ experience, including in the administration of trusts, and has the appropriate insurance; and the fees to be charged are lower than those of the NSW Trustee and Guardian.
I agree that it is in Chase’s interests to place the funds payable to him in the trust established on his behalf, that is the Chase Gregory Soper Trust Fund.
The findings and orders are set out in the Certificate of Determination.
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