Aseru Facility Services Pty Ltd v Harrison - [2023] NSWPIC 629

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…

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: [2023] NSWPIC 629
Decision Date: 24 November 2023

CaseChat Overview and Summary

Aseru Facility Services Pty Ltd brought an application to the Workers Compensation Regulator of New South Wales regarding the death of a worker. The dispute involved the apportionment of a lump sum payable under section 25(1)(a) of the Workers Compensation Act 1987, along with claims for interest and funds management fees. The matter was determined by the Workers Compensation Regulator.

The legal issues before the Regulator included determining who was dependent for support on the worker at the date of her death, the appropriateness of the apportionment agreed upon by the parties, the calculation of interest under section 109 of the Workplace Injury Management and Workers Compensation Act 1998, and the award of funds management fees under section 25(1A) of the 1987 Act. The Regulator considered statements, correspondence, and factual material provided by the respondents, the worker's dependants.

The Regulator found that no other persons but the first four respondents were dependent for support on the worker at the date of her death, and the fifth respondent was not dependent. The apportionment of the lump sum as agreed between the parties was approved. Interest at 6.1% per annum was awarded from the date each respondent served a reply upon the applicant with statement evidence of dependency, in line with the parties' agreement. Funds management fees were awarded in relation to the third respondent, also as agreed by the parties. Awards were entered in relation to the first four respondents.

The final orders included the approval of the apportionment of the lump sum, the calculation of interest as agreed, and the award of funds management fees to the third respondent.

Orders