Bamford v State of NSW (NSW Police Force)

[2023] NSWPIC 413

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Bamford v State of NSW (NSW Police Force) & Ors [2023] NSWPIC 413

APPLICANT:

Angela Bamford

FIRST RESPONDENT:

State of NSW (NSW Police Force)

SECOND RESPONDENT:

Sophie Payne

THIRD RESPONDENT:

Grace Payne

SENIOR MEMBER:

Elizabeth Beilby

DATE OF DECISION:

15 August 2023

17 August 2023

CATCHWORDS:

WORKERS COMPENSATION - Workers Compensation Act 1987; section 25(1)(a); lump sum death benefits; no dispute that that the first respondent was liable to pay the lump sum benefit; parties were able to agree on a proposed apportionment of the lump sum benefit; Held – proposed apportionment was appropriate after considering the circumstances of dependency of each party; no other person who was eligible to claim dependency; orders made in relation to funds management expenses for management of the relevant lump sums by the NSW Trustee and Guardian; parties were able to agree on interest.

DETERMINATIONS MADE:

The Commission determines:

1.     I find that the applicant, second and third respondents were wholly or partially dependent upon the deceased as at the date of his death which occurred between 25 and 25 April 2021.

2.     There was no other person that was dependent upon the deceased as at the date of death.

3. The lump sum benefit payable in accordance with s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act) as at the date of death was $838,750.

4.     The parties agreed that there is an entitlement to $40,000 to interest on the lump sum benefit.

5.     The first respondent is to pay the lump sum benefit together with a pro rata payment of interest based upon the following (agreed) apportionment:

(a)    $527,250.00 (being 60% of the lump sum benefit and interest) to the applicant;

(b)    $175,750 (being 20% of the lump sum benefit and interest) to the second respondent, and

(c)    $175,750 (being 20% of the lump sum benefit and interest) to the third respondent.

6.     Pursuant to s 85A of the 1987 Act, the sum apportioned in favour of applicant is to be paid directly to her.

7.     Pursuant to s 85(1) of the 1987 Act, the sums awarded in favour of the minor respondents (the second and third respondents) are to be paid to the New South Wales Trustee and Guardian.

8.     The first respondent is to pay the New South Wales Trustee and Guardian its fees in accordance with clause 177 of the Workers Compensation Regulations 2016 as follows:

(a)    $24,646.64 for the third respondent, and

(b)    $30,588.07 for the second respondent.

9.     The first respondent is to pay the costs of the proceedings as agreed or assessed.

STATEMENT OF REASONS

BACKGROUND

1. Gregory Payne (the deceased) died between 25 and 26 April 2021.

2. The State of NSWW (NSW Police Force) (the first respondent/employer) has admitted liability in respect of the death and is liable to pay compensation pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act) (the lump sum death benefit).

3. Angela Bamford (the applicant) was married to Greg Payne in 2008 and they had two children,  Grace Payne (the third respondent born in 2011) Sophie Payne (the second respondent born in 2013).

4. The relationship between the applicant and her daughters ( the second and third respondents) is one of a loving family. I have no concerns that the applicant will continue to care for her two daughters looking after their best interests at all times.

ISSUES FOR DETERMINATION

1. The parties agreed that the following issues remain in dispute:

   (a)    dependency as at the date of death;

   (b)    apportionment of the lump sum death benefit;

   (c)    entitlement to interest, and

   (d)    and if so, from what date and at what rate.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. At the listed hearing, the parties were able to agree to a proposed resolution of the matter regarding dependency.

EVIDENCE

Documentary evidence

1. The following documents were in evidence before the Personal Injury Commission and considered in making this determination:

   (a)    Application to Resolve a Dispute (the Application) and attached documents;

   (b)    Replies from the respondents, and

   (c)    Application to Admit Late Documents dated 18 July 2023.

2. I will now deal with the issues in turn:

Dependency

1. A dependant is defined in s 4 of the Workplace Injury Management and Workers Compensation Act 1998 to include persons who were “wholly or in part dependent for support on the worker at the time of the worker’s death”.

2. There was no evidence before me that there is any other person that wishes to be or could be described as dependent upon the deceased as at the date of death in either a full or partial capacity. Statutory declarations have been made from family members who may have been considered as potential dependant parties to the effect that they do not wish to make an application in the present case.[1] I therefore find that there were no other dependants.

   [1] See late documents dated 18 July 2023.

3. The applicant has provided clear evidence as to her financial dependency upon the deceased. They lived together in the family home, both contributing to the expenses incurred by and for the family.

4. There were two daughters from the marriage, namely the second and third respondents, born in 2011 and 2013 respectively. Both children were cared for by their parents and financial provision made for them (by both parents). There are no health concerns for either daughter.

5. The applicant, second and third respondents have agreed on a proposed apportionment of the lump sum benefit of $838 750 in the following proportion:

   (a)    $503,250.00 (being 60% of the lump sum benefit) to the applicant;

   (b)    $167,750 (being 20% of the lump sum benefit) to the second respondent, and

   (c)    $167,750 (being 20% of the lump sum benefit) to the third respondent.

6. I find that the applicant, second and third respondents would have continued to benefit from the deceased’s support financially but for his death.

7. I therefore make orders sought by the applicant, second respondent and third respondent in relation to the proposed apportionment.  The apportionment recognises the relative dependency each had on the deceased.

8. I observe that the second and third respondents receive the same share even though there is a small age difference. The equal distribution is endorsed by the applicant who holds the best interests of the children. I agree that comity in the circumstances of near equal ages holds some force and I agree that it is appropriate.

9. The entitlement for the second and third respondents will be held by the New South Wales Trustee and Guardian pending each child reaching his or her majority.

Interest

1. The parties were able to agree on a general entitlement to interest to all respondents being $40,000. It was agreed that this would be apportioned on a pro rata basis.

Orders

1. I find that the applicant, second and third respondents were wholly or partially dependent upon the deceased as at the date of his death which occurred between 25 and 26 April 2021.

2. There was no other person that was dependent upon the deceased as at the date of death.

3. The lump sum benefit payable in accordance with s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act) as at the date of death was $838,750.

4. The parties agreed that there is an entitlement to $40,000 to interest on the lump sum benefit.

5. The first respondent is to pay the lump sum benefit together with a pro rata payment of interest based upon the following (agreed) apportionment:

   (a)    $527,250 (being 60% of the lump sum benefit and interest) to the applicant;

   (b)    $175,750 (being 20% of the lump sum benefit and interest) to the second respondent, and

   (c)    $175,750 (being 20% of the lump sum benefit and interest) to the third respondent.

6. Pursuant to s 85A of the 1987 Act, the sum apportioned in favour of applicant is to be paid directly to her.

7. Pursuant to s 85(1) of the 1987 Act, the sums awarded in favour of the minor respondents (the second and third respondents) are to be paid to the New South Wales Trustee and Guardian.

8. The first respondent is to pay the New South Wales Trustee and Guardian its fees in accordance with clause 177 of the Workers Compensation Regulations 2016 as follows:

   (a)    $24,646.64 for the third respondent, and

   (b)    $30,588.07 for the second respondent.

9. The first respondent is to pay the costs of the proceedings as agreed or assessed.