Batth Saab Trans Pty Limited v Verma

[2023] NSWPIC 80

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Batth Saab Trans Pty Limited v Verma & Ors [2023] NSWPIC 80

APPLICANT:

Batth Saab Trans Pty Ltd

first RESPONDENT:

Ishika Verma

second respondent:

Gobind Verma

third respondent:

Sunita Verma

SENIOR Member:

Elizabeth Beilby

DATE OF DECISION:

3 March 2023

CATCHWORDS:

WORKERS COMPENSATION - Application for the distribution of the lump sum death benefit; dependant as defined in section 4 of the Workplace Injury Management and Workers Compensation Act 1998; definition of support in section 25 of the Workers Compensation Act 1987; Warilla Timber and Hardware Pty Ltd v Newton and Albury Real Estate Pty Ltd v Rouse and Anor discussed; Held – the residual lump sum is to be paid directly and in equal parts to the three dependants.

determinations made:

1.     Mr Rishabh Verma suffered a fatal injury whilst in the employment of the applicant on
28 April 2021.

2.     The first, second and third respondents were dependent upon the deceased as at the date of death.

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

4.     The lump sum benefit payable is $838,750.

5.     There is an outstanding student loan of $25,400. This sum is to be paid directly to Gobind Verma to satisfy the loan.

6.     The residual lump sum of $813,350 is to be paid directly and in equal parts to the three dependants.

7.     There is no claim for interest on the lump sum benefit.

STATEMENT OF REASONS

BACKGROUND

1. Mr Risabh Verma (the deceased) was employed by Batth Saab Trans Pty Ltd (the applicant) as truck driver.

2. On 28 April 2021 he was involved in a fatal motor vehicle accident in New South Wales.

3. A claim for the lump sum benefit has been lodged by the deceased’s parents, Gobind and Sunita Verma and Ishika Verma, his sister.

ISSUES FOR DETERMINATION

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

   (a)    what persons were considered to be dependent upon the deceased as at the date of death?

   (b)    how should the death lump sum be apportioned?

PROCEDURE BEFORE THE COMMISSION

1. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

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. A reasonable expectation that the deceased would provide future support can satisfy the concept of dependency.[1] Warilla Timber and Hardware Pty Ltd v Newton[2]and Albury Real Estate Pty Ltd v Rouseand Anor[3] provides authority that term “support” in s 25 of the Workers Compensation Act 1987 is not limited to financial support and encompasses other multifactorial aspects including assistance with day-to-day activities and emotional support.

   [1] TNT Group 4 Pty Ltd v Halioris (1987) 8 NSWLR 486 at [490].

   [2] (1995) 11 NSWCCR 546, [554] to [555].

   [3] [2006] NSWWCCPD 139, [45] to [50].

3. All the proposed dependants have provided evidence of their dependency by way of statutory declarations. The declarations clearly outline the degree of financial dependency and assistance the deceased gave to his father and his mother and also to his sister. This included, but was not limited to cash payments to supplement family income.

4. Considering those statements there is no doubt in my mind that there was financial dependence of Mr and Mrs Verma on their son and also by his sister Ishika Verma.

5. I have also been provided with advice from learned counsel addressed to the resopndents relating to the issues of both dependency and apportionment[4]. The advice clearly reflects the evidence that I have been provided with and my views on apportionment echo the advice that has been provided to the parties from counsel. 

   [4] Late documents dated 18 January 2023

6. I am satisfied that the evidence shows that the first, second and third respondents were dependent on the deceased at the time of his death. They all received financial and emotional support from their loved son and brother and there was an expectation that this would have continued but for his death.

7. It is understood and accepted by all parties that there is an outstanding student loan to pay for the deceased’s study in Australia. There is an outstanding loan of $25,400 to be repaid.

8. The parties agreed that this sum should de deducted from the lump sum benefit and be paid directly to the second respondent to satisfy the outstanding debt. This, to my mind, this is appropriate, I therefore direct that the sum of $25,400 is paid directly to the second respondent.

9. The family members have agreed to share the residual lump sum ($813,350) in equal parts, being $271,116.66 each. I think that this is a fair and reasonable distribution of the lump sum benefit. The lump sum should be paid accordingly directly to each dependant.