Aseru Facility Services Pty Ltd v Harrison

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Aseru Facility Services Pty Ltd v Harrison & Ors [2023] NSWPIC 629
APPLICANT:	Aseru Facility Services Pty Limited
FIRST RESPONDENT:	Glenn Steven Harrison
SECOND RESPONDENT:	Fraser Norman Harrison
THIRD RESPONDENT:	Dascha Mai Harrison
FOURTH RESPONDENT:	Lerato Gredda Mosholi
FIFTH RESPONDENT:	Jason Lesedi Mosholi
MEMBER:	Gaius Whiffin
DATE OF DECISION:	24 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for benefits in respect of the death of a worker; apportionment of lump sum payable under section 25(1)(a) of the Workers Compensation Act 1987 (1987 Act), together with claims for interest and funds management fees; consideration of respondents’ (dependants’) statements, claim correspondence, and factual material; consideration of who was dependent for support on the worker at the date of her death; TNT Group 4 Pty Limited v Halioris considered; consideration of appropriateness of apportionment agreed between the parties; consideration as to interest awards under section 109 of the Workplace Injury Management and Workers Compensation Act 1998; Pheeney v Doolan (No 2) and Mudgee Explorer Tours Pty Ltd v Clarke considered; consideration of funds management fees award in relation to the third respondent, pursuant to section 25(1A) of the 1987 Act; Held – no other persons but the first four respondents were dependent for support on the worker at the date of her death; the fifth respondent was not dependent for support on the worker at the date of her death; apportionment of the lump sum under section 25(1)(a) of the 1987 Act as agreed between the parties approved; interest at 6.1% per annum awarded from the date each respondent served a reply upon the applicant with statement evidence of dependency, as agreed between the parties; funds management fees awarded in relation to the third respondent, as agreed between the parties; awards entered in relation to the first four respondents.
DETERMINATIONS MADE:	The Commission determines: 1. That Mmalerato Gredna Harrison (the worker) died on 25 November 2022 as a result of injury arising out of or in the course of her employment with the applicant, pursuant to s 4 of the Workers Compensation Act 1987. 2. That the worker’s employment was a substantial contributing factor to the injury, pursuant to s 9A of the Workers Compensation Act 1987. 3. That the first respondent was partly dependent for support on the worker at the date of her death. 4. That the second respondent was partly dependent for support on the worker at the date of her death. 5. That the third respondent was partly dependent for support on the worker at the date of her death. 6. That the fourth respondent was partly dependent for support on the worker at the date of her death. 7. That the fifth respondent was not dependent for support on the worker at the date of her death. 8. That there were no other persons dependent for support on the worker at the date of her death. 9. That the applicant is liable to pay the amount of $871,200 pursuant to s 25(1)(a) of the Workers Compensation Act 1987. 10. That the amount of $871,200 is to be apportioned between the respondents as follows, pursuant to s 29 of the Workers Compensation Act 1987: (a) first respondent – 65%; (b) second respondent – 10%; (c) third respondent - $12.5%, and (d) fourth respondent - $12.5%. 11. That the applicant pay interest on the amounts awarded to the respondents, as agreed between the parties, pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1988. 12. That the applicant pay funds management fees on the amount awarded to the third respondent, as agreed between the parties, pursuant to s 25(1A) of the Workers Compensation Act 1987. The Commission orders: 1. Pursuant to s 85A of the Workers Compensation Act 1987, the applicant is to pay the first respondent the amount of $566,280, together with interest on that amount agreed between the parties at $8,517.41 (6.1% per annum from 4 August 2023 to 1 November 2023). 2. Pursuant to s 85A of the Workers Compensation Act 1987, the applicant is to pay the second respondent the amount of $87,120, together with interest on that amount agreed between the parties at $1,324.94 (6.1% per annum from 3 August 2023 to 1 November 2023). 3. Pursuant to s 85 of the Workers Compensation Act 1987, the applicant is to pay the NSW Trustee and Guardian in trust for the benefit of the third respondent the amount of $108,900, together with interest on that amount agreed between the parties at $1,656.17 (6.1% per annum from 3 August 2023 to 1 November 2023), and together with funds management fees in relation to that amount agreed between the parties at $7,393.62. 4. Pursuant to s 85A of the Workers Compensation Act 1987, the applicant is to pay the fourth respondent the amount of $108,900, together with interest on that amount agreed between the parties at $1,419.58 (6.1% per annum from 16 August 2023 to 1 November 2023). 5. There will be no award entered in favour of the fifth respondent.

STATEMENT OF REASONS

BACKGROUND

Mmalerato Gredna Harrison (the worker) died at Jesmond, New South Wales, after suffering multiple injuries in an accident on 25 November 2022 while working as a cleaner at the Woolworths store located at 24-26 Blue Gum Road, Jesmond. There is no dispute that she was at the time in the course of her employment with Aseru Facility Services Pty Limited (the applicant).
The applicant has admitted liability for compensation flowing from the worker’s death pursuant to Part 3 Division 1 of the Workers Compensation Act 1987 (the 1987 Act). It has submitted an Application in Respect of Death of Worker (ARDW) to the Personal Injury Commission (Commission). The applicant has conceded that it is liable to pay an amount of $871,200 pursuant to s 25(1)(a) of the 1987 Act.
Replies to the Application have been lodged by five alleged dependants of the worker’s at the date of her death. Glenn Steven Harrison (the first respondent) is her husband (date of marriage: 30 December 2013). Fraser Norman Harrison (the second respondent) is the first respondent’s son from a previous marriage and the worker’s step-child (currently 19 years of age). Dascha Mai Harrison (the third respondent) is the first respondent’s daughter from a previous marriage and the worker’s step-child (currently 17 years of age). Lerato Gredda Mosholi (the fourth respondent) is the worker’s sister, and Jason Lesedi Mosholi (the fifth respondent) is the fourth respondent’s son (currently 3 years of age).
Megan Crockford (the third respondent’s mother) has agreed to act as her tutor in these proceedings, and Christa van Dyk has agreed to act as the fifth respondent’s tutor in the proceedings.

ISSUES FOR DETERMINATION

The parties agree that these issues require determination by the Commission:
(a) Who was dependent for support on the worker at the date of her death?
(b) How should the amount of $871,200 be apportioned between those dependants, pursuant to s 29 of the 1987 Act?

(c) Are the dependants entitled to interest on the amounts awarded to them, pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1988 Act)?

(d) What orders should be made regarding funds management fees, pursuant to
s 25(1A) of the 1987 Act?

PROCEDURE BEFORE THE COMMISSION

The proceedings initially proceeded to a preliminary conference before the Commission on 19 September 2023. Orders were then made for the provision of written submissions by all parties regarding the issues to be determined.
At the preliminary conference, the proceedings were also listed for a conciliation/arbitration on 10 November 2023.
Ms Emma Mead, solicitor, provided submissions on behalf of the first respondent.
Ms Philippa Clingan of counsel (instructed by Shaun Cockle Legal) provided submissions on behalf of the second respondent. Mr Bill Carney of counsel (instructed by Harris Kelly & Associates Lawyers) provided submissions on behalf of the third respondent. Mr Jim Jobson of counsel (instructed by Carroll & O’Dea Lawyers) provided submissions on behalf of the fourth respondent. No submissions were provided on behalf of the fifth respondent.
As the written submissions have been reduced to writing, they form part of the Commission’s record and I will not go through them in detail. From a perusal of the various submissions however, it is apparent that the respondents have agreed on the orders sought from the Commission.
It remains however for the Commission to be satisfied as to the appropriateness of the orders sought, and to make appropriate findings determining the issues in dispute.
After receiving the written submissions as well as correspondence from the applicant, the Commission held a further preliminary conference on 1 November 2023. Mr Stephen Harris, solicitor, represented the applicant at the preliminary conference.
The parties advised the Commission that they had agreed (subject to the Commission being satisfied) on the lump sum payable pursuant to s 25(1)(a) of the 1987 Act being apportioned as follows:
(a)     first respondent – 65%;
(b)     second respondent – 10%;
(c)     third respondent - $12.5%;
(d)     fourth respondent - $12.5%, and
(e)     fifth respondent – 0%.
Mr Harris also advised the Commission that if it was satisfied as to the appropriateness of the apportionment agreement reached by the respondents, he had reached agreement with them as to the amounts to be awarded:
(a) to the first four respondents for interest pursuant to s 109 of the 1998 Act – calculated at a rate of 6.1% per annum from the date of service of each respondent’s reply until 1 November 2023, and
(b) to the third respondent for funds management fees pursuant to s 25(1A) of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the ARDW and its attached documents;
(b)    the first respondent’s Reply lodged on 4 August 2023 (first Reply) and its attached documents;
(c)    the second respondent’s Reply lodged on 2 August 2023 (second Reply) and its attached documents;
(d)    the third respondent’s Reply lodged on 2 August 2023 (third Reply) and its attached documents;

(e)    the fourth respondent’s Reply lodged on 17 August 2023 (fourth Reply) and its attached documents;
(f)    the fifth respondent’s Reply lodged on 16 August 2023 (fifth Reply) and its attached documents, and
(g)    the four sets of written submissions – referred to at paragraph 8 above.

Oral evidence

There was no oral evidence called.

FINDINGS AND REASONS

Who was dependent for support on the worker at the date of her death

Section 25 of the 1987 Act provides:
“(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…”
Section 4 of the 1998 Act then defines a dependant as follows:
“‘dependants’ of a worker means such of the members of the worker's family as were wholly or in part dependent for support on the worker at the time of the worker's death, or would but for the incapacity due to the injury have been so dependent…”
I have carefully considered the statements in evidence from the first four respondents. Due to his age, the fifth respondent has not provided a statement, but his dependency position is adequately addressed in the statement provided by the fourth respondent, being his mother.
According to the first respondent’s statement dated 27 June 2023 (at page 4 of the first Reply), he married the worker on 30 December 2013, and they had lived together since. They pooled their income to pay their living costs “50/50”. The first respondent explains that these costs included rent, electricity, mobile phones, groceries, petrol, car expenses, health expenses, incidentals, going to restaurants, and clothing.
According to the statement, the worker earned an average of $1,360 net per week (working in two jobs) at the date of her death. She was 39 years of age and earning more than the first respondent at the time. She had no plans to retire.
The first respondent was clearly dependent for support on the worker at the date of her death, and held a reasonable expectation that her support would otherwise have continued for her working life.
The second respondent has provided a statement dated 25 July 2023 (at page 1 of the second Reply). He is currently 19 years of age. Since his father married the worker on
30 December 2013, he had resided with them 50% of the time. He obviously benefited from the living costs paid jointly by his father and the worker. He says that he depended on his father and the worker jointly for “my schooling, shelter, board and emotional support”.
According to the statement, the worker was a calming influence in the household, often de-escalating tension. She was supportive of the second respondent’s career choices. The second respondent treated her “as my second mother”.
The second respondent had commenced working casually as a bakery assistant in November 2020, and was still working in that capacity at the date of the worker’s death. He did not however contribute any of his pay to the household, and did not pay for food or board. He planned to study, and says that “it was my expectation that the status quo would continue when I started to study”.
The first respondent’s statement also confirms that the worker was “a very active stepmother to my children”, and that she attended their schooling and sporting events, cooked for them, cleaned for them, cared for them, and otherwise “got on very well with them both”.
Having considered the statements of the first respondent and the second respondent, I find that the second respondent was also dependent for support on the worker at the date of her death.
The third respondent has provided a statement dated 26 June 2023 (at page 1 of the third Reply). She is currently 17 years of age and in Year 11 at school. She has a casual job at Coles, from which she earns up to $150 per week. As with the second respondent, she also resided with her father and the worker “approximately half of my time”.
According to the statement, the worker supported the third respondent by preparing her meals, buying her clothes and shoes, doing her laundry, doing her ironing, driving her to and from school, providing her with money for school excursions and the school canteen, buying her meals, paying for her Christmas presents to others, buying her birthday and Christmas presents, and driving her to various appointments.
The third respondent also describes the worker as “like a second mother to me”. She says that the worker was a great support to her emotionally, especially following a hospital admission of hers for anorexia.
Having considered the statements of the first respondent (see paragraph 25 above) and the third respondent, I find that the third respondent was also dependent for support on the worker at the date of her death.
The fourth respondent has provided a statement dated 14 August 2023 (at page 1 of the fourth Reply). She is the worker’s twin sister. The two of them had an extremely challenging upbringing in South Africa, described as being “very disjointed because we were orphans”. The two of them “relied upon each other over the years for both emotional and financial support”.
After the worker migrated to Australia in 2013, she continued to send regular payments to assist the fourth respondent, especially during periods when the fourth respondent was unemployed, or struggling with the amount of work which she received after she became self-employed. This financial support continued after the commencement of the COVID-19 pandemic. The fourth respondent used a portion of the financial support to ensure that she and her son had private health insurance coverage.
The fourth Reply also includes bank statements of the fourth respondent’s, from which a schedule (at page 263) was prepared. The schedule details that between 15 January 2020 and 13 October 2022, the worker forwarded a total of AUD$27,370.88 to the fourth respondent.
The fourth respondent in her statement summarises:
“Jason and I were heavily reliant upon Mallis for financial support. I had expected that Mallis would continue to provide Jason with support until he could adequately provide for himself through employment and for myself for the rest of my life…I did not expect my requirement for support from Mallis would change due to such things as marriage.”
The first respondent also confirms in his statement that after the commencement of the COVID-19 pandemic, the worker “sent some of her pay back to Lerato”, and he concedes that he does not know if the worker intended to send money to the fourth respondent indefinitely.
In the circumstances, I am satisfied on the evidence that the fourth respondent was partly dependent for support on the worker at the date of her death.
I also find that the first four respondents had reasonable expectations that the worker would provide support for them into the future. See TNT Group 4 Pty Limited v Halioris (1987) 8 NSWLR 486.
In relation to the fifth respondent, I do not believe that there is sufficient evidence in order for me to find that he was partly dependent for support on the worker at the date of her death. I note that no submissions were made on his behalf to the contrary.
While the fourth respondent in her statement (see paragraph 34 above) refers to receiving financial support from the worker on behalf of herself and her son, the evidence is that the financial support was provided to the fourth respondent directly. There were for example no financial payments paid into a trust account on behalf of the fifth respondent, or any other arrangement made by which the worker made payments to the fourth respondent to be specifically used in order to support the fifth respondent. While the fourth respondent of course used the payments made to her for the benefit of the fifth respondent, that fact in my opinion does not make the fifth respondent dependent for support on the worker. The fourth respondent was able to use the payments made to her as she saw fit.
The only evidence of direct support provided by the worker to the fifth respondent is in the fourth respondent’s statement, where she says that the worker sent clothes to her for the fifth respondent. Without further details or evidence or submissions, I do not believe that this is sufficient evidence on its own for me to find the fifth respondent to be dependent on the worker for support at the date of her death.
It now remains for me to determine whether there were any persons other than the first four respondents who were dependent on the worker at the date of her death. In this regard, I note the following evidence:
(a)    the fourth respondent’s statement that she and the worker were orphans with “no other significant family connections other than our grandmother who passed away in 2003”;
(b)    the first respondent’s statement that the worker “did not know who her father was and was estranged from her mother since approximately 1990”;
(c)    the first respondent’s statement that the only sibling that the worker was in contact with was the fourth respondent;
(d)    the first respondent’s statement that to the best of his knowledge, apart from the fourth respondent, “there are no other relatives in South Africa living and dependent on Mallis”; and
(e)    the first respondent’s statement that he and the worker did not have any children together.

Bearing in mind the close relationship between the fourth respondent and the worker since their birth, as well as the fact that the first respondent and the worker had known each other since 2012 and had been married since 30 December 2013, I am satisfied that they together possess the best knowledge as to the worker’s familial situation. As a result, I am also satisfied that their evidence establishes that:
(a)    the worker had no parents or grandparents dependent for support on her at the date of her death;
(b)    the worker had no siblings dependent for support on her at the date of her death, other than the fourth respondent;
(c)    the worker had no spouse or partner dependent for support on her at the date of her death, other than the first respondent, and
(d)    the worker had no children of her own.
I therefore find that apart from the first four respondents, there were no other persons dependent on the worker for support at the date of her death.

How should the amount of $871,200 be apportioned between the first four dependants, pursuant to s 29 of the 1987 Act

Section 29 relevantly provides:
“(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).”
As indicated at paragraph 12 above, the first four respondents and the applicant have agreed an appropriate apportionment of the lump sum under s 25(1)(a) of the 1987 Act. The agreement in this regard is:
(a)    first respondent – 65%;
(b)    second respondent – 10%;
(c)    third respondent – 12.5%; and
(d)    fourth respondent – 12.5%.
I consider this proposed apportionment to be a sound apportionment of the appropriate lump sum having regard to the dependency level on the worker of each respondent. The apportionment allows the first respondent to receive approximately two-thirds of the lump sum, which is appropriate considering that at the time of her death, he had been living with the worker and equally sharing all their household costs for close to nine years. There was no evidence before me that that arrangement was not likely to continue indefinitely.
The apportionment also allows the second and third respondents to receive appropriate allowances for their financial dependence upon both the worker and the first respondent, in that around 50% of their living costs were met by the worker and the first respondent at the time of the worker’s death. This arrangement was likely to continue at least until both the second respondent and the third respondent had finished their studies and obtained sound employment. In addition, it is clear from the evidence that the second respondent and the third respondent both had a very close and loving relationship with the worker, which would have led to her providing significant emotional, as well as a degree of financial, support to them on an ongoing basis.
The third respondent is to receive slightly more of the appropriate lump sum that the second respondent as she is two years younger than him and still at school. This is entirely appropriate.
The apportionment further allows the fourth respondent to receive an appropriate allowance for the financial assistance that would have been provided to her by the worker, as evidenced by the fact that (see paragraph 33 above) the worker had provided her with assistance amounting to approximately $1,300 per month in the 21 months prior to her death. Considering the fourth respondent’s precarious financial position in South Africa, I accept her evidence (see paragraph 34 above) that she had a reasonable expectation of receiving such support on an ongoing basis indefinitely.
I therefore propose to approve the apportionment agreed between the parties.

Are the dependants entitled to interest on the amounts awarded to them, pursuant to s 109 of the 1998 Act

Section 109 relevantly provides:
“(1)    In any proceedings before the Commission, the Commission may order that there is to be included, in any sum to be paid, interest at such rate as the Commission thinks fit on the whole or any part of the sum for the whole or any part of the period before the sum is payable, subject to the limitations imposed by this section.
(2)     Interest cannot be ordered under this section-
(a) on any compensation payable under Division 4 of Part 3 of the 1987 Act, or
(b) on any compensation payable under this Act for any period before a claim for the compensation was duly made, or
(c) on any compensation payable under this Act for any period during which proceedings before the Commission were adjourned on the application of the claimant for the compensation or pursuant to section 102.
(3)     This section does not-
(a) authorise the giving of interest upon interest, or
(b) apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise.”
As indicated at paragraph 13 above, the first four respondents and the applicant have agreed that an interest rate of 6.1% per annum should be paid upon the amounts awarded to each respondent from the date when the applicant received each respondent’s reply (which attached their statements as to dependency) until the date of the Commission’s preliminary conference on 1 November 2023.
The power of the Commission to award interest is however discretionary. The relevant interest rate to be awarded is also within the discretion of the Commission.
In Pheeney v Doolan (No 2) [1977] 1 NSWLR 601 (Pheeney), the Court of Appeal said that it was necessary to determine in what respect a party has been financially disadvantaged by delay in the payment of (in that case) damages so as to make an appropriate allowance of interest. Reynolds JA, Moffitt P and Mahoney JA agreeing on point, said:
“It provides an ancillary power akin to an order for costs, and its purpose is to aid the court to do more complete justice between the parties than is otherwise possible ... It is not designed to compensate a plaintiff for loss arising out of the cause of action, but to provide compensation where it is otherwise appropriate to do so for the circumstance that a sum of money has been outstanding to him for a period of time.”
Applying this reasoning, and considering the agreement of the applicant to pay interest to the respondents, I am satisfied that it is appropriate to exercise my discretion to award interest. I also consider that the parties have selected the correct period for interest to be awarded, that is, the period from the date when each respondent’s dependency was fully particularised (by the provision of a statement). See Mudgee Explorer Tours Pty Ltd v Clarke [2021] NSWPIC 41.
In relation to the interest rate to be applied, I have no hesitation in agreeing with the rate of 6.1% per annum proposed by the parties. In doing so, I note the purpose behind interest awards per Pheeney. I also note that the Reserve Bank cash rate as at 1 November 2023 was 4.1%.

What orders should be made regarding funds management fees, pursuant to s 25(1A) of the 1987 Act

In accordance with s 85(1)(a) of the 1987 Act, I will be directing that the third respondent’s share of the appropriate lump sum payable pursuant to s 25(1)(a) of the 1987 Act be paid to the NSW Trustee and Guardian in trust for her benefit. In this regard, she is currently only 17 years of age.
The third respondent is therefore entitled to an order pursuant to s 25(1A) of the 1987 Act, which provides as follows:
“If the lump sum death benefit is paid to the NSW Trustee for the benefit of a dependant in accordance with section 85 after the commencement of this subsection, the employer must, subject to the regulations, pay as additional compensation fees of a kind prescribed by the regulations concerning investing or otherwise managing the sum for the dependant's benefit.”
The amount payable in this regard has been agreed between the applicant and the third respondent (see paragraph 13 above) at $7,393.62. I propose to therefore make an order in favour of the third respondent in relation to this amount.

SUMMARY

I find that the worker died on 25 November 2022 as a result of injury arising out of or in the course of her employment with the applicant, pursuant to s 4 of the 1987 Act.
I find that the worker’s employment was a substantial contributing factor to the injury, pursuant to s 9A of the 1987 Act.
I find that the first respondent was partly dependent for support on the worker at the date of her death.
I find that the second respondent was partly dependent for support on the worker at the date of her death.
I find that the third respondent was partly dependent for support on the worker at the date of her death.
I find that the fourth respondent was partly dependent for support on the worker at the date of her death.
I find that the fifth respondent was not dependent for support on the worker at the date of her death.
I find that there were no other persons dependent for support on the worker at the date of her death.
I determine that the applicant is liable to pay the amount of $871,200 pursuant to s 25(1)(a) of the 1987 Act.
I determine that the amount of $871,200 is to be apportioned between the respondents as follows, pursuant to s 29 of the 1987 Act:
(a)     first respondent – 65%;
(b)     second respondent – 10%;
(c)     third respondent – 12.5%, and
(d)     fourth respondent – 12.5%.
I determine that the applicant pay interest at the rate of 6.1% per annum on the amounts awarded to the respondents, from the dates when their replies were received by the applicant until 1 November 2023, pursuant to s 109 of the 1988 Act.
I determine that the applicant pay funds management fees on the amount awarded to the third respondent, pursuant to s 25(1A) of the 1987 Act.
There will be an award that the applicant pay the first respondent the amount of $566,280, together with agreed interest on that amount of $8,517.41.
There will be an award that the applicant pay the second respondent the amount of $87,120, together with agreed interest on that amount of $1,324.94.
There will be an award that the applicant pay the NSW Trustee and Guardian in trust for the benefit of the third respondent the amount of $108,900, together with agreed interest on that amount of $1,656.17, and together with agreed funds management fees in relation to that amount of $7,393.62.
There will be an award that the applicant pay the fourth respondent the amount of $108,900, together with agreed interest on that amount of $1,419.58.
There will be no award entered in favour of the fifth respondent.

[2023] NSWPIC 629

24 November 2023