Barakat v Serco Australia Pty Ltd

[2023] NSWPIC 276

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Barakat v Serco Australia Pty Ltd & Ors [2023] NSWPIC 276

APPLICANT:

Inas Barakat

FIRST RESPONDENT:

Serco Australia Pty Ltd

second RESPONDENT:

Ousamah Barakat

third RESPONDENT:

Ayah Zohbi

fourth RESPONDENT:

Yusuf Zohbi

fifth RESPONDENT:

Ibrahim Zohbi

sixth RESPONDENT:

Yunus Zohbi

seventh RESPONDENT:

Musa Zohbi

SENIOR Member:

Elizabeth Beilby

DATE OF DECISION:

13 June 2023

CATCHWORDS:

WORKERS COMPENSATION - Workers Compensation Act 1987; claim in respect of lump sum death benefit; Held – orders made pursuant to section 29 regarding dependency and apportionment.

determinations made:

1.     I find that the applicant, and the fourth, fifth and sixth respondents were wholly or partially dependent upon the deceased, Mr Mohammad Zohbi at the date of his death on 2 October 2020.

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

3. The lump sum benefit payable in accordance with s 25(1)(a) of the Workers Compensation Act 1987 as of the date of death was $834,200.

4.     The first respondent is to pay lump sum benefit based upon the following (agreed) apportionment:  

a.     $714,332 to Inas Barakat;

b.     $5,508 to Yusuf Zohbi; 

c.     $21,600 to Ibrahim Zohbi;

d.     $42,360 to Yunus Zohbi, and

e.     $50,400 to Musa Zohbi. 

5. The first respondent is to pay the NSW Trustee and Guardian its fees in accordance with Clause 177 of the Workers Compensation Regulation 2016.

STATEMENT OF REASONS

BACKGROUND

1. Mr Mohammad Zohbi suffered a fatal heart attack on 2 October 2020.

2. At the time of his death he was married to Inas Barakat and was the father of eight children.

3. Serco Australia Pty Ltd (first respondent/the 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).

4. The only substantive issue for determination is the question of dependency and any apportionment of the death benefit.

ISSUES FOR DETERMINATION

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

   (a)    dependency at the time of death, and

   (b)    apportionment of the lump sum death benefit.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. The parties were able to agree to a proposed resolution of the matter regarding dependency at the listed arbitration in this matter.

EVIDENCE

Documentary evidence

1. The following documents were in evidence before the Personal Injury Commission (Commission) and taken into account in making this determination:

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

   (b)    Replies to the Application to Resolve a Dispute (the Reply) and attached documents.

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 is no doubt that the applicant and fourth, fifth, sixth and seventh respondents were dependent upon the deceased as at the time of his death. Inas Barakat (the applicant) was the wife of the deceased and the other respondents were his children and were provided for by their father. The parties have filed evidence to support such a finding.

3. There is no evidence before me that identifies any potential person who could be or wishes to be classed as dependent upon the deceased as at the date of death. Statutory declarations have been filed Taibe Ahmed, Ousamah Zohbi, Aya Zohbi, Issra Zohbi and Mamoud Zohbi, all indicating that they do not wish to be considered as dependant parties upon the deceased.

4. The parties were able to agree upon an appropriate resolution of the matter that takes into account dependency and age.

5. Orders are made in accordance with that agreement pursuant to s 29 of the 1987 Act.