Atkins v Palmer Steel Frame & Truss Pty Ltd
[2021] NSWPIC 453
•12 November 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Atkins v Palmer Steel Frame & Truss Pty Ltd [2021] NSWPIC 453 |
| APPLICANT: | Owen Barry Atkins |
| RESPONDENT: | Palmer Steel Frame & Truss Pty Ltd |
| MEMBER: | Rachel Homan |
| DATE OF DECISION: | 12 November 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for lump sum death benefit; liability accepted; identification of dependants who were wholly or partly dependent for support on the worker; Richardson v Turfco Australia Pty Ltd considered; applicant was the sole dependant; Held - orders for payment of the lump sum death benefit pursuant to section 85A(1)(a) of the Workplace Injury Management and Workers Compensation 1998 Act (1998 Act) and interest pursuant to section 109 of the 1998 Act. |
| DETERMINATIONS MADE: | 1. The deceased worker, Kieran Nathaniel Atkins, died on 3 October 2020 as a result of injuries sustained in the course of employment with the respondent. 2. Owen Barry Atkins was a dependant of the deceased worker who was partly dependent for support upon him at the date of his death. 3. There were no other persons wholly or partly dependent for support upon the deceased worker at the date of death. 4. The lump sum death benefit payable in accordance with s 25(1)(a) of the Workers Compensation Act 1987 is $834,200. |
| ORDERS MADE: | 1. The respondent to pay $834,200 to Owen Barry Atkins pursuant to s 85A(1)(a) of the Workers Compensation Act 1987. 2. The respondent to pay interest on the sum payable under s 25(1)(a) of the Workers Compensation Act 1987 from 8 September 2021 to 11 November 2021 at the rate of 2.5%. |
STATEMENT OF REASONS
BACKGROUND
Mr Kieran Nathaniel Atkins (the deceased worker) died as a result of injuries sustained in the course of his employment with Palmer Steel Frame & Truss Pty Ltd (the respondent) on 3 October 2020. The deceased worker was 31 years old at the time of his death. Liability to pay compensation has been accepted by the respondent.
Mr Owen Barry Atkins (the applicant) lodged an Application in Respect of Death of Worker on 14 October 2021 seeking orders for payment of the lump sum death benefit payable under s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act) pursuant to s 85A of the 1987 Act. The applicant is the deceased worker’s father.
PROCEDURE BEFORE THE COMMISSION
The parties appeared at teleconference on 11 November 2021. The applicant was represented by Mr Stuart Grant of counsel, instructed by Ms Elizabeth Campbell. The respondent was represented by Ms Christie Blake, legal practitioner. Representatives from iCare and the insurer were also present.
The respondent confirmed that liability to pay compensation had been accepted and it was agreed that the applicable death benefit was $834,200. The respondent’s solicitor informed me that appropriate enquiries had been made and it was satisfied that the applicant was a dependant of the deceased worker who was dependent for support on the deceased worker at the time of his death and that there were no other persons dependent.
The parties also informed me that they had reached agreement that interest on the lump sum death benefit should be paid at the rate of 2.5% from 8 September 2021 to the date of the Commission’s orders for payment.
The applicant requested that an order be made for payment of the lump sum death benefit directly to him pursuant to s 85A(1)(a) of the 1987 Act.
ISSUES FOR DETERMINATION
The parties agree that the following matters require determination:
(a) identification of any family members who were wholly or partly dependent for support on the deceased worker in accordance with s 4 of the Workplace Injury Management and Workers Compensation 1998 Act (the 1998 Act);
(b) orders in relation to payment of the compensation, and
(c) orders in respect of interest pursuant to s 109 of the 1998 Act.
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 and attached documents;
(b) Reply and attached documents, and
(c) documents attached to an Application to Admit Late Documents lodged by the applicant on 29 October 2021.
The evidence before me includes the New South Wales birth certificate of the deceased worker, which identified the applicant as his father and Mrs Heather Adrienne Atkins as his mother. The deceased worker had three older siblings, Natasha, Elric and Melanie.
10.The New South Wales death certificate for the deceased worker identified that he had never married and had no children at the date of his death on 3 October 2020.
11.Attached to the Application was correspondence from the applicant’s solicitors to Mrs Atkins and the deceased worker’s four siblings, Natasha Elder, Elric Atkins, Melanie Thompson-Atkins and Kyle Atkins. That correspondence advised that liability to pay lump sum compensation in the amount of $834,200 had been accepted by the insurer and that any dependants of the deceased worker were entitled to make a claim. The recipients were advised that proceedings would be commenced shortly in the Commission and were requested to acknowledge whether they wished to make a claim. The recipients were advised of their ability to obtain free legal advice provided by the Independent Review Office.
12.Mrs Atkins and each of the deceased worker’s four siblings supplied statutory declarations in which they indicated that they did not wish to claim dependency for the purposes of the compensation claim and had been provided with the opportunity to obtain independent legal advice but did not wish to do so. Each of the family members indicated that to the best of their knowledge, the deceased worker had no dependants or potential dependants other than his parents and siblings.
13.The applicant provided a statement in which he described his relationship with the deceased worker, their living arrangements and the manner in which he was dependent upon the deceased worker for financial and practical physical support at the time of his death. The applicant said the deceased worker did not have a partner at the time of his death and had no children.
FINDINGS AND REASONS
Dependants
14.The term, ‘dependants’ is defined in s 4 of the 1998 Act as
“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”.
The definition includes a person who stands in the place of a parent to the worker.
15.I am satisfied on the uncontradicted evidence before me that the applicant in these proceedings was the deceased worker’s father.
16.It is also necessary to determine whether the applicant was wholly or in part dependent for support on the worker at the time of the worker’s death.
17.In TNT Group 4 Pty Limited v Halioris (1987) 3 NSWCCR 10; 8 NSWLR 486, McHugh JA stated (at [489]):
“Dependency is a question of fact: Potts v Niddre & Benhar Coal Co Ltd [1913] AC 531 at 539, 542; Aafjes v Kearney (1976) 50 ALJR 454 at 456, 457 and 459. It is concerned with actual and not theoretical support. A person claiming dependency need not be in actual receipt of support at the date of death. It is enough that, as at that date, he or she had a reasonable expectation of support in the future. Dependency may exist at the date of death although actual support cannot or is unlikely to occur until a future time.”
In Richardson v Turfco Australia Pty Ltd [2016] NSWWCCPD 43 (Richardson), Keating P identified a number of general statements of principle for determining dependency at [65]:
“(a) dependency is not limited to the class of persons actually in receipt of financial assistance (Sadiq);
(b) dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased (Amaca Pty Ltd v Novek [2009] NSWCA 50);
(c) although dependency is not limited to financial dependency, it does involve one person being beholden to another for some material or physical help or succour, emotional dependency is not enough (Skinner);
(d) ‘dependent’ in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed (Petrohilos);
(e) a mother’s services to a young child may satisfy the test of dependency. To suggest that, in a money sense they are valueless, is simply wrong (Petrohilos);
(f) while one of the commonest forms of dependence might be financial dependence, the word used in the statute (which I infer is the Conveyancing Act 1919) is not limited to financial dependence (Williams), and
(g) the word ‘partly’ in the phrase ‘partly dependent’, whilst a word of ‘some elasticity’, does not mean ‘substantially’, but means ‘more than minimally’, or perhaps, ‘significantly’ (Bremner v Graham [2016] NSWSC 633 at [34] citing Priestley JA at [4] (with whom Hope AJA agreed) in McKenzie v Baddeley [1991] NSWCA 197) (McKenzie)). Meagher JA, in McKenzie at [6], commented that ‘[c]ommon sense requires that certain trivial activities should be disregarded’.”
In Richardson, Keating P found that the provision of practical physical support by the deceased worker to his mother should not be discounted in determining dependency unless it was trivial in nature.
20.The uncontradicted evidence provided by the applicant indicates that at the date of his death, the deceased worker resided at the family home with the applicant, Mrs Atkins and his sibling, Kyle Atkins. The deceased worker supported the applicant by:
(a) contributing an average of $100 per week to household bills and living expenses including, electricity and internet bills and takeaway food;
(b) performing domestic tasks including, tidying the kitchen and looking after the home and animals including dogs, cats, ducks and chooks when the applicant and Mrs Atkins were away;
(c) attending to all IT issues including setting up and managing the home network and network security;
(d) assisting with vehicle maintenance on cars and motorbikes, and
(e) making things for the home including pizza ovens, barbecues and bird cages.
The applicant’s evidence is broadly consistent with the written evidence of the other family members before me. In the absence of any evidence to the contrary, or any objection from the respondent, I am satisfied that the applicant was partly dependent for support on the deceased worker at the date of his death. I am satisfied that the applicant’s dependence on the deceased worker was more than just minimal or trivial and was significant.
I am further satisfied that that appropriate enquiries have been made and there is no evidence of any other person, apart from the family members identified in the evidence in these proceedings, who may have been dependent on the deceased worker at the time of his death.
The deceased worker’s mother, Mrs Atkins, and his four siblings, have each provided evidence that they did not intend to pursue any claim for a portion of the lump sum death benefit after being informed of their ability to make a claim and obtain independent legal advice. Each of these relatives also indicated that they were not aware of any other family member who may have been dependent upon the deceased worker.
I am satisfied for the purposes of s 29(1A) of the 1987 Act that the deceased worker left only one dependant. The whole of the lump sum death benefit is to be paid to that one dependant, the applicant.
The applicant has requested that payment of the benefit be made to him directly pursuant to s 85A(1)(a) of the 1987 Act. That course was not opposed by the respondent. I am satisfied in all the circumstances that this is appropriate.
I am further satisfied having regard to the agreement reached between the parties and on the evidence before me that there should be an order for interest to be paid at the agreed rate of 2.5% from 8 September 2021 to 11 November 2021, being the date upon which the Commission’s orders for payment were made.
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