Baker v Transport for NSW
[2024] NSWPIC 321
•18 June 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Baker v Transport for NSW & Anor [2024] NSWPIC 321 |
| APPLICANT: | Carla Baker |
| FIRST RESPONDENT: SECOND RESPONDENT: | Transport for NSW Cameron Baker |
| MEMBER: | Gaius Whiffin |
| DATE OF DECISION: | 18 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987 (the 1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); claim for benefits in respect of the death of a worker; apportionment of lump sum payable under section 25(1)(a) of the 1987 Act; entitlement to interest under sections 109 of the 1998 Act; how the amounts are awarded to the dependants to be paid in accordance with sections 85 and 85A of the 1987 Act; consideration of statements and statutory declarations, claim correspondence, and factual material; consideration of who was dependent for support on the worker at the date of his death; TNT Group 4 Pty Limited v Halioris considered; consideration of appropriateness of apportionment agreed between the parties; consideration of interest entitlement; Pheeney v Doolan (No 2), Mudgee Explorer Tours Pty Ltd v Clarke, Hu v Rongfar Property Service Pty Ltd, Youseph v Homebush Unit Trust t/as Primo Smallgoods considered; consideration of sections 85 and 85A of the 1987 Act; Held – no other persons but the applicant and the second respondent were dependent for support on the worker at the date of his death; the apportionment of the lump sum under section 25(1)(a) of the 1987 Act as agreed between the parties is approved; interest under section 109 of the 1998 Act is awarded pursuant to an amount agreed between the parties; awards entered in favour of the applicant and the second respondent accordingly; the monies payable are to be paid directly to them pursuant to section 85A of the 1987 Act; notation made with the agreement of the parties in relation to the weekly payments payable to the applicant and the second respondent pursuant to section 25(1)(b) of the 1987 Act. |
| DETERMINATIONS MADE: | The Commission determines: 1. That Craig Raymond Baker (the worker) died on 22 September 2019 as a result of injury arising out of or in the course of his employment with the first respondent, pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act). 2. That the applicant was dependent on the worker for support. 3. That the second respondent was dependent on the worker for support. 4. That there were no other persons dependent for support on the worker. 5. That the first respondent is liable to pay the amount of $810,050 pursuant to s 25(1)(a) of the 1987 Act. 6. That the amount of $810,050 is to be apportioned as follows, pursuant to s 29 of the 1987 Act: (a) applicant – 50%, and (b) second respondent – 50%. 7. That the first respondent is to pay interest on the amounts awarded to the applicant and the second respondent, pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), as follows: (a) applicant – $15,000, and (b) second respondent – $15,000. The Commission orders: 8. Pursuant to ss 25 and 85A of the 1987 Act, the first respondent is to pay the applicant the amount of $405,025, together with interest of $15,000 (in accordance with s 109 of the 1998 Act). 9. Pursuant to ss 25 and 85A of the 1987 Act, the first respondent is to pay the second respondent the amount of $405,025, together with interest of $15,000 (in accordance with s 109 of the 1998 Act). The Commission notes: 10. Pursuant to s 25(1)(b) of the 1987 Act, the first respondent agrees to pay weekly compensation in respect of the applicant, at the rates specified from time to time in the SIRA Benefits Guide, from 22 September 2019 to 9 February 2023. 11. Pursuant to s 25(1)(b) of the 1987 Act, the first respondent agrees to pay weekly compensation in respect of the second respondent, at the rates specified from time to time in the SIRA Benefits Guide, from 22 September 2019 to 23 February 2023. |
STATEMENT OF REASONS
BACKGROUND
Craig Raymond Baker (the worker) died on 22 September 2019. It has been conceded by his employer, Transport for NSW (the first respondent), that his death resulted from an injury pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act).
He was 52-years-old at the time of his death.
His (currently 22-years-of-age) daughter, Carla Baker, is the applicant. His (currently 19-years-of-age) son, Cameron Baker, is the second respondent.
The respondent eventually accepted its liability for compensation flowing from the worker’s death in accordance with Part 3 Division 1 of the 1987 Act. Its solicitors advised the applicant’s solicitors in this regard by email on 10 October 2022.
By way of an Application in Respect of Death of Worker (the ARDW) lodged with the Personal Injury Commission (Commission), the applicant therefore seeks orders that a lump sum pursuant to s 25(1)(a) of the 1987 Act in the amount of $810,050 be paid by the first respondent (as apportioned between her and the second respondent), and that weekly compensation be paid in relation to her and the second respondent pursuant to s 25(1)(b) of the 1987 Act for a closed period of time. The ARDW also seeks orders regarding the relevant lump sums being payable directly to her and the second respondent, pursuant to s 85A of the 1987 Act.
Although not specifically claimed in the ARDW, interest on the relevant lump sums to be paid is claimed by the applicant and the second respondent, in accordance with s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The first respondent is able to meet this claim and it will also be therefore determined in these proceedings.
ISSUES FOR DETERMINATION
Preliminary conferences were held by the Commission in the proceedings on 23 May 2024 and 12 June 2024. As a result of the agreements and discussions held at the preliminary conferences, the only issues requiring determination by the Commission are:
(a) who was dependent for support on the worker at the date of his death;
(b) how should the amount of $810,050 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 1998 Act, and
(d) how are the amounts awarded to the dependants to be paid in accordance with ss 85 and 85A of the 1987 Act.
PROCEDURE BEFORE THE COMMISSION
At the preliminary conferences, the applicant was represented by Ms Sutcliffe, the first respondent was represented by Ms Beattie (on 23 May 2024) and Mr Guest (on
12 June 2024), and the second respondent was represented by Ms Harris. The applicant and the second respondent were also present at both preliminary conferences.The first respondent advised the Commission that it accepted liability to pay compensation pursuant to Part 3 Division 1 of the 1987 Act, in relation to the worker’s death. It conceded liability to pay the amount of $810,050 in accordance with s 25(1)(a) of the 1987 Act. It also agreed to pay the weekly compensation claimed in relation to the applicant and the second respondent in accordance with s 25(1)(b) of the 1987 Act. The applicant would be paid from the date of the worker’s death until her 21st birthday on 9 February 2023, and the second respondent would be paid from the date of the worker’s death until the date when he finished his schooling on 23 February 2023. It was agreed between the parties that the Commission would make a notation in relation to the first respondent’s agreement to pay the weekly compensation in this regard.
It was further agreed between the parties that there would be no order (in accordance with s 26 of the 1987 Act) made by the Commission in relation to the worker’s funeral expenses.
The applicant and the second respondent then advised the Commission that, subject to its approval, they had agreed on the apportionment of the lump sum payable pursuant to s 25(1)(a) of the 1987 Act between themselves, as follows:
(a) applicant – 50% - an amount of $405,025, and
(b) second respondent – 50% - an amount of $405,025.
In relation to the claims for interest on the lump sums to be awarded, during conciliation at the preliminary conferences, an agreement was reached between the parties (subject to approval by the Commission) that the first respondent would pay $15,000 to both the applicant and the second respondent.
The issues (see paragraph 7 above) requiring determination by the Commission were therefore crystallised.
Also, at the preliminary conference on 12 June 2024, all parties confirmed that they each had no objection to the admission of the evidence lodged with the Commission by the other parties. All parties further confirmed that they did not seek to make any specific submissions to the Commission.
I am grateful to the parties for their assistance, and in their provision of evidence. I am also grateful to them for the courteous and respectful manner in which they have conducted themselves in the proceedings.
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 (the first Reply) and its attached documents;
(c) the second respondent’s Reply (the second Reply) and its attached documents;
(d) the applicant’s Application to Admit Late Documents dated 20 May 2024 (the applicant’s first AALD) and its attached documents, and
(e) the applicant’s Application to Admit Late Documents dated 27 May 2024 (the applicant’s second AALD) and its attached documents.
Oral evidence
There was no oral evidence called.
FINDINGS AND REASONS
Who was dependent for support on the worker at the date of his 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…”
The amount of $750,00 has been indexed, and the parties have agreed that the correct amount to be awarded as at 22 September 2019 was $810,050.
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/statutory declarations in evidence from:
(a) the applicant dated 4 March 2024 (at page 8 of the ARDW);
(b) the second respondent dated 22 April 2024 (at page 15 of the ARDW);
(c) Grahame Baker (the worker’s now deceased father) dated 26 August 2020 (at page 1 of the ARDW);
(d) Grahame Baker dated 19 December 2022 (at page 4 of the ARDW);
(e) Warren Baker (the worker’s only brother) dated 17 December 2022 (at page 3 of the ARDW);
(f) Renee Cox (the worker’s only sister) dated 19 December 2022 (at page 5 of the ARDW);
(g) Renee Cox dated 23 May 2024 (at page 1 of the applicant’s second AALD);
(h) Yvonne Hunter (the worker’s partner at the date of his death) dated
21 December 2022 (at page 6 of the ARDW), and(i) Endang Nilawati (the worker’s ex-wife and the mother of the applicant and the second respondent) dated 23 July 2023 (at page 7 of the ARDW).
The evidence is consistent as to both the applicant and the second respondent being partly dependent for support upon the worker at the date of his death.
The evidence reveals that the worker was initially married to Endang Nilawati, but that they divorced prior to Endang Nilawati moving to Indonesia, with the applicant and the second respondent, on 21 September 2011. The applicant and the second respondent were the only children of the marriage.
About a year later, the worker went to Indonesia and returned with both children in his sole care. They moved to Woonona and lived there with the worker’s parents. The worker then obtained employment in Albury, and asked his parents to “take guardianship” of the two children. The worker’s father says in his 26 August 2020 statement:
“Elaine and I had Carla and Cameron under our care as at October 2012…My wife, Elaine Patricia Baker, passed away in March 2015…I continued to look after Carla and Cameron on my own after my wife’s passing…Craig would visit Carla and Cameron in Woonona a couple of times a year…I would take Carla and Cameron to Aubury a couple of times a year to visit Craig…Craig was in regular contact with Carla and Cameron via phone…Craig would, from time to time provide financial assistance to me to support Carla and Cameron.”
In her statement, the applicant expands upon the support (both emotional and financial) provided to her by her father prior to his death:
(a) she would see him on school holidays and on special occasions;
(b) she would regularly speak to him over the telephone or via text messages;
(c) he paid for her to attend a performing arts camp;
(d) he paid various expenses to enable her to compete in gymnastics competitions;
(e) he bought her an acoustic guitar and an electric acoustic guitar;
(f) he bought her an iPhone;
(g) he gave her money for her birthday and at Christmas, and
(h) he paid $2,500 towards the purchase of her second car.
After the applicant obtained her first part-time employment (while she was still at school), she says:
“Although I was earning an income, I was still financially dependent on both of my parents and my grandfather. I was still in regular contact with both of my parents and dad continued to provide me money when I asked for it as did my mum.”
The applicant completed her schooling in 2020, and enrolled in a communications and media degree in 2021 at the University of Wollongong. She then began to work about 30 hours per week as a casual waitress and bartender, and she also obtained some work as a guitar player and singer. She changed her university course and commenced a nursing degree in early 2023, but deferred her studies and moved to Queensland in late 2023. She has had some financial difficulties since leaving school, and says:
“Although I was working casually, I would sporadically be given financial assistance from my mum or grandfather. I anticipate that if dad had of still been alive, he too would have helped me when I needed it if he could…If it wasn’t for dad’s passing, I expected that he would continue to support me financially and emotionally. Although my dad was not providing me with consistent financial support at the time of his death, I expected that if I needed him to help me in any way, he would as he had done so through my
teenage years.”
In his statement, the second respondent also expands upon the support (both emotional and financial) provided to him by his father prior to his death:
(a) he would see his father on school holidays and on special occasions;
(b) he spoke to his father by telephone every second day or so;
(c) his father would “always buy things we wanted and needed when we were younger”, and
(d) he says:
“My father and I were close. We had a healthy relationship before he passed away. He cared for me. He provided for me. He guided me and he rarely got angry. He introduced me to the game of soccer at a young age and we both played together when he would come up to see us. We both enjoyed talking about football and going out to do something together.”
The second respondent completed his schooling in 2023 and now works as an air-conditioning and refrigeration apprentice.
I have no difficulties in finding that, in accordance with their uncontradicted evidence, the applicant and the second respondent were both partly dependent on the worker for support as at the date of his death. They were both still at school at the time, and although mainly supported by the worker’s father, it is clear that the worker also took an active role in their upbringing which included both financial and emotional support.
Considering this support provided by the worker prior to his death, I also find that the applicant and the second respondent had reasonable expectations that the worker would continue to provide support (both emotional as well as financial when necessary) for them into the future, especially while they were establishing their lives. See TNT Group 4 Pty Limited v Halioris (1987) 8 NSWLR 486.
It now remains for me to determine whether there were any other persons who were dependent on the worker for support at the date of his death. In this regard, I note the following evidence:
(a) in her 23 May 2024 statement, the worker’s sister, Renee Cox, says:
(i)she and the worker had no surviving grandparents;
(ii)their mother had also passed away prior to the worker’s death;
(iii)their father passed away on 3 August 2023;
(iv)she and the worker only had one sibling, being Warren Baker;
(v)to the best of her knowledge, the worker had only been formally married once – to Endang Nilawati;
(vi)the worker was however in a de facto relationship with Yvonne Hunter at the date of his death, and
(vii)to the best of her knowledge, the applicant and the first respondent were the worker’s only children;
(b) Renee Cox’s 19 December 2022 statement confirms that she was not financially dependent upon the worker at the date of the worker’s death, and advises that she does not make any workers compensation benefit claim arising out of the worker’s death;
(c) Grahame Baker’s 19 December 2022 statement confirms that he was not financially dependent upon the worker at the date of the worker’s death, and advises that he does not make any workers compensation benefit claim arising out of the worker’s death;
(d) Warren Baker’s 17 December 2022 statement confirms that he was not financially dependent upon the worker at the date of the worker’s death, and advises that he does not make any workers compensation benefit claim arising out of the worker’s death;
(e) Yvonne Hunter’s 21 December 2022 statement confirms that she was not financially dependent upon the worker at the date of the worker’s death, and advises that she does not make any workers compensation benefit claim arising out of the worker’s death - despite her being the worker’s de facto partner as at that date, and
(f) Endang Nilawati’s 20 July 2023 statement confirms that she was not financially dependent upon the worker at the date of the worker’s death, and advises that she does not make any workers compensation benefit claim arising out of the worker’s death.
Relying upon this evidence (especially the statement evidence from Renee Cox, who being the worker’s sister, is placed in the best position to know his familial situation), I am satisfied that apart from the applicant and the second respondent, there were no grandparents, parents, siblings, spouses, partners, children or others dependent on the worker for support at the date of his death.
How should the amount of $810,050 be apportioned between the dependants pursuant to s 29 of the 1987 Act
Section 29 of the 1987 Act 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 11 above, the applicant and the second respondent have agreed an appropriate apportionment of the lump sum payable under s 25(1)(a) of the 1987 Act. The agreement in this regard is:
(a) applicant – 50%, and
(b) second respondent – 50%.
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 dependent.
There is no evidence before me that either the applicant or the second respondent requires any special medical or other needs. There is only a three-year age difference between them. They are both currently in the process of establishing their lives, the applicant through studying nursing, and the second respondent through an air-conditioning and refrigeration apprenticeship. There is no evidence to suggest that the worker treated them other than equally, and therefore, in my opinion, they would have been supported by him equally had he not died, especially while they were establishing their lives.
The equal apportionment of the relevant lump sum is in my opinion, in the interests of both the applicant and the second respondent. It is fair and reasonable, and it is appropriate in continuing the balanced and equitable family dynamic. 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 12 above, the parties have agreed that the first respondent pay both the applicant and the second respondent $15,000 each as interest.
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, 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 parties, I am satisfied that it is appropriate to exercise my discretion to award interest.
I also have no problem in awarding interest in accordance with the parties’ agreement. The agreed amounts seem to me to have been appropriately calculated, having regard to the various current interest rates being used by Members of the Commission when awarding interest pursuant to s 109 of the 1998 Act (generally just over 6% per annum), as well as having regard to the period to be used when calculating interest (that is, the period from the date when dependency was first fully particularised - see Mudgee Explorer Tours Pty Ltd v Clarke [2021] NSWPIC 41, Hu v Rongfar Property Service Pty Limited [2021] NSWPIC 95, and Youseph v Homebush Unit Trust t/as Primo Smallgoods [2021] NSWPIC 299). I note in this regard that the only letter of dependency particularisation attached to the ARDW is a letter from the applicant’s solicitors to the first respondent’s solicitors dated 4 March 2024 (at page 19). I also note that it seems that the statements relied upon by the applicant and the second respondent were first provided to the first respondent when the ARDW was served upon it.
How are the amounts awarded to the dependants to be paid in accordance with ss 85 and 85A of the 1987 Act
Section 85 of the 1987 Act reads as follows:
“(1) The following compensation shall be paid to the NSW Trustee in trust for the benefit of the persons entitled to the compensation--
(a) compensation payable in respect of the death of a worker (unless paid to a worker's legal personal representative or a particular person in accordance with this Act or an award),
(b) compensation payable to a person who is mentally ill (unless the Commission otherwise orders),
(c) compensation payable to a worker under the age of 18 years if the worker agrees or the Commission directs that the compensation be paid to the NSW Trustee,
(d) a lump sum commutation payment which the worker agrees or the Commission orders to be paid to the NSW Trustee.
(2) Any money so paid to the NSW Trustee may be invested, applied, paid out or otherwise dealt with by the NSW Trustee in such manner as the NSW Trustee thinks fit for the benefit of the persons entitled to the money.
(3) If a surviving spouse (including widow or widower) (over 18 years of age and not mentally ill) is the only person entitled to compensation paid to the NSW Trustee in respect of the death of a worker, the compensation shall be paid out to the surviving spouse in one or more lump sums determined by the NSW Trustee.
(4) A reference in subsection (3) to the surviving spouse of a deceased worker includes a reference to a dependant of the worker who is the de facto partner of the worker.
(5) In the case of a lump sum commutation payment, the NSW Trustee shall exercise its powers under this section in accordance with the agreement or order under which it was paid to the NSW Trustee.
(6) The Commission may, for any sufficient cause, vary the manner in which the NSW Trustee invests, applies, pays out or otherwise deals with money under this section.
(7) The NSW Trustee may apply for any such variation.
(8) The receipt of the NSW Trustee is sufficient discharge in respect of any money paid to the NSW Trustee under this section.”
Section 85A of the 1987 Act reads as follows:
“(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.”
I am given a wide discretion in accordance with s 85A of the 1987 Act in relation to how I authorise the payment of the lump sums payable to the dependents. There is no reason why I would not order that, pursuant to s 85A of the 1987 Act, both the applicant and the second respondent receive the lump sums payable to them, and I will do so. They are both over 18-years-of-age, and there is no evidence of lack of capacity.
SUMMARY
In summary, I make the following formal findings:
(a) that the worker died on 22 September 2019 as a result of injury arising out of or in the course of his employment with the first respondent, pursuant to s 4 of the 1987 Act;
(b) that the applicant was dependent on the worker for support;
(c) that the second respondent was dependent on the worker for support;
(d) that there were no other persons dependent for support on the worker;
(e) that the first respondent is liable to pay the amount of $810,050 pursuant to s 25(1)(a) of the 1987 Act;
(f) that the amount of $810,050 is to be apportioned as follows, pursuant to s 29 of the 1987 Act:
(i)applicant – 50% - an amount of $405,025, and
(ii)second respondent – 50% - an amount of $405,025, and
(g) that the first respondent is to pay interest on the amounts awarded to the applicant and the second respondent, pursuant to s 109 of the 1998 Act, as follows:
(i)applicant – $15,000, and
(ii)second respondent – $15,000.
Considering my findings, there will be awards that the first respondent pay:
(a) an amount of $405,025 together with interest of $15,000 to the applicant in accordance with s 85A of the 1987 Act, and
(b) an amount of $405,025 together with interest of $15,000 to the second respondent in accordance with s 85A of the 1987 Act.
Further, as agreed between the parties, there will also be a notation that the first respondent pay weekly compensation, pursuant to s 25(1)(b) of the 1987 Act, in respect of the applicant (between 22 September 2019 and 9 February 2023) and in respect of the second respondent (between 22 September 2019 and 23 February 2023), at the rates specified from time to time in the SIRA Benefits Guide.
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