Baker v Transport for NSW - [2024] NSWPIC 321

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),…

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: [2024] NSWPIC 321
Decision Date: 18 June 2024

CaseChat Overview and Summary

The case of Baker v Transport for NSW involves a claim for benefits in respect of the death of a worker, who was employed by Transport for NSW. The claim was brought by the applicant, the worker's widow, and the second respondent, the worker's daughter. The dispute centred on the apportionment of a lump sum payable under section 25(1)(a) of the Workers Compensation Act 1987, the entitlement to interest under sections 109 of the Workplace Injury Management and Workers Compensation Act 1998, and how the amounts are to be awarded to the dependents in accordance with sections 85 and 85A of the 1987 Act. The primary issues before the court were whether the apportionment of the lump sum agreed upon by the parties was appropriate, whether interest was payable under section 109 of the 1998 Act, and how the amounts should be paid to the dependents.

The court considered the submissions, statements, statutory declarations, claim correspondence, and other factual material provided by the parties. It was established that at the date of the worker's death, the only persons who were dependent for support on him were the applicant and the second respondent. The court approved the apportionment of the lump sum under section 25(1)(a) of the 1987 Act as agreed between the parties. The court also awarded interest under section 109 of the 1998 Act, based on an amount agreed between the parties. The court found that the awards entered in favour of the applicant and the second respondent should be paid directly to them pursuant to section 85A of the 1987 Act. The court made a notation 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.

The final orders of the court were that the lump sum payable to the applicant and the second respondent be apportioned as agreed, and that interest be paid on the lump sum and weekly payments in accordance with the agreement of the parties. The court also ordered that the payments be made directly to the applicant and the second respondent pursuant to section 85A of the 1987 Act. The court noted that the agreement of the parties was in relation to the weekly payments payable under section 25(1)(b) of the 1987 Act.

Orders