BBE v Baptistcare NSW & Act

[2022] NSWPIC 554

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

BBE v Baptistcare NSW & ACT & others [2022] NSWPIC 554

APPLICANT:

BBE

FIRST RESPONDENT:

Baptistcare NSW and ACT

SECOND RESPONDENT

BCA

THIRD RESPONDENT

BCB

SENIOR Member:

Elizabeth Beilby

DATE OF DECISION:

25 August 2022

CATCHWORDS:

WORKERS COMPENSATION - Lump sum death benefit; Held – no other persons identified as dependant except the respondent.

determinations made:

1.     I find that the applicant and the first and second respondents were dependent for support upon the deceased, BDE, at the date of his death on 14 July 2021.

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 $838,750.

4. The lump sum of $758,750 is to be paid directly to the applicant pursuant to s 85A of the Workers Compensation Act 1987.

5.     The respective sums of $50,000 for the second respondent and $30,000 for the third respondent are to be paid to the Trust Accounts of the solicitors on record until a private Trust Account is set up for the benefit of the second and third respondents.

STATEMENT OF REASONS

BACKGROUND

1. BDE (the deceased) died on 14 July 2021. Baptistcare NSW and ACT (the employer/first respondent) 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).

2. 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 (the Commission)

1. The claim was listed in the Commission for a preliminary telephone conference on 15 August 2022. The parties were able to agree to a proposed resolution of the matter at that time.

2. The parties were unable to agree to any resolution regarding the payment of interest. The parties have been directed to file written submissions on this issue.

EVIDENCE

Documentary evidence

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

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

   (b)    Replies to the Application to Resolve a Dispute dated 25 July 2022, and

   (c)    late documents dated 12 August 2022 and 24 August 2022.

Dependency

1. A dependent 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]

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

3. BBE (the applicant) was the de facto partner of the deceased. She has filed two statements dated 16 June 2022 and 24 August 2022 to support the application in this matter. The statement clearly outlines the circumstances of her dependency as that date of death which included maintaining a family home together and sharing expenses.

4. Two children lived in the family home, namely BCB and BCA. Both children, being minors, were dependent upon the deceased at the time of death. They also had a close and loving relationship with him.

5. There is no evidence before me of any other person who was partially or fully dependent upon the deceased and wishes to make a relevant claim.  The second statement from BBE addresses this issue directly and I am satisfied that no wider family relatives (including all siblings) were partially or fully dependent upon the deceased at the time of death.

6. I am satisfied that BBE is a loving Mother who will act in her children’s benefit for the present time and into the future. As a result, her entitlement is significantly larger than that of her children.

7. BBE, with some legal assistance, is to organise the entitlements for the children to be held on trust until they reach the age of 18. In those circumstances, the entitlement should be paid directly into the Trust accounts of the solicitors on the record for the second and third respondents respectively.