BER v Hyqcen Pty. Ltd
[2023] NSWPIC 118
•23 March 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | BER v Hyqcen Pty. Ltd. & Ors [2023] NSWPIC 118 |
| APPLICANT: | BER |
| FIRST RESPONDENT | Hyqcen Pty Ltd |
| SECOND RESPONDENT | BGJ |
| THIRD RESPONDENT | BHH |
| FOURTH RESPONDENT: | BIO |
| Member: | Cameron Burge |
| DATE OF DECISION: | 23 March 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Claim for payment of death benefit; liability originally disputed on basis that deceased worker was on a journey; applicant and second to fourth respondents allege the injury which caused the death of the worker was suffered on a work trip in the course of his employment; first respondent sought to amend dispute notice to the injury which caused the worker’s death was suffered in the course of the deceased’s employment; application opposed by applicant and second to fourth respondents; application to amend refused, whereupon first respondent indicated it could not resist the applicant’s claim; Held – apportionment of death benefit approved in accordance with in-principal agreement of applicant and second to fourth respondents; payment of interest and administration fees awarded in accordance with agreed terms forwarded by the parties after the hearing. |
| determinations made: | |
The Commission determines:
BJI (the deceased) died on 28 October 2021 as a result of injury arising out of and in the course of his employment with the first respondent.
At the date of the deceased’s death the applicant was his wife spouse as that term is used in s 4(1)(c) of the Workplace Injury Management and Workers Compensation Act 1998.
At the date of the deceased’s death, the applicant was dependent for support upon him.
At the date of the deceased’s death, each of the second, third and fourth respondents were the minor children of the deceased and dependent for support upon him.
There was no other person dependent upon the deceased for support at the date of his death.
The sum payable in respect of the death of a worker at 28 October 2021 pursuant to
s 25(1)(a) of the Workers Compensation Act 1987 was $849,300.Order that the first respondent pay the sum referred to in [6] above, being $849,300 as follows:
(a) 53% of the benefit sum, being $450,129 to the applicant in accordance with the instructions for payment provided to the first respondent by the applicant’s solicitors, Messrs HY Solicitors;
(b) 13% of the benefit sum, being $110,409 to the NSW Trustee and Guardian for the benefit of the second respondent (born 2011) to be dealt with as the Trustee and Guardian sees fit;
(c) 14% of the benefit sum, being $118,902 to the NSW Trustee and Guardian for the benefit of the third respondent (born 2012) to be dealt with as the Trustee and Guardian sees fit, and
(d) 20% of the benefit sum, being $169,860 to the NSW Trustee and Guardian for the benefit of the fourth respondent (born 2016) to be dealt with as the Trustee and Guardian sees fit.
The above apportionments represent a proper division of the statutory lump sum in terms of the injury to each of the dependent’s expectation of support from the deceased as at the date of his death on 28 October 2021.
Pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998, the first respondent pay interest on the lump sum ordered under s 25(1)(a) of the Workers Compensation Act 1987 as follows:
· 26 October 2022 to 1 November 2022 4.60%
· 2 November 2022 to 6 December 2022 4.85%
· 7 December 2022 to 7 February 2023 5.10%
· 8 February 2023 to 7 March 2023 5.35%
· 8 March 2023 to the date of the certificate of determination 5.60%
Pursuant to s 25(1A) of the Workers Compensation Act 1987, the first respondent pay to the NSW Trustee its fees calculated in accordance with cl177 of the Workers Compensation Regulation 2016.
STATEMENT OF REASONS
BACKGROUND
On 28 October 2021, Mr BJI (the deceased) was fatally injured in a motor vehicle accident. At the time of his death, the deceased was employed by Hyqcen Pty Limited (the first respondent).
At the date of his death, the deceased was married to BER (the applicant).
There is no issue that at the dated of the deceased’s death, the relevant benefits payable upon the death of a worker pursuant to s 25 of the workers Compensation Act 1987 (the 1987 Act) was $849,300.
There is also no issue that at the date of his death, the deceased had the following children:
(a) BGJ (the second respondent);
(b) BHH (the third respondent), and
(c) BIO (the fourth respondent).
Each of the second to fourth respondents are minor children of the deceased and were separately joined to and represented in the proceedings.
Liability for the deceased’s death was disputed on the basis that at the time of his death, the deceased was engaged in a journey between a place of abode and place of employment, pursuant to s 10(3)(a) and/ or 10(3)(e) of the Workers Compensation Act 1987 (the 1987 Act).
The applicant and second to fourth respondents reached in principle agreement of any apportionment of the death benefit between them, should the primary question of liability be resolved in their favour and subject to approval of that apportionment by the Personal Injury Commission (Commission), if applicable.
ISSUE FOR DETERMINATION
The parties agreed the only issue in dispute was the question of liability.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing by video conference on 16 March 2023. 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.
At the hearing, the parties were represented as follows:
(a) applicant – Mr McManamey instructed by Ms Liu;
(b) first respondent – Mr Rickard instructed by Mr Harris;
(c) second respondent – Mr Hanrahan instructed by Mr Chidiac;
(d) third respondent – Mr Hammond instructed by Ms Alfan, and
(e) fourth respondent – Ms Grotte instructed by Ms Ang.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application in Respect of Death of Worker (the Application) and attached documents;
(b) Reply of first respondent and attached documents;
(c) Reply of second respondent and attached documents;
(d) Reply of third respondent and attached documents, and
(e) Reply of fourth respondent and attached documents.
Oral evidence
There was no oral evidence called in the proceedings.
FINDINGS AND REASONS
Preliminary application
At the outset of the hearing, Mr Rickard made an application pursuant to s 289A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to amend the s 78 notice relied on by the first respondent by adding to the sentence “The evidence on file does not establish that there was a real and substantial connection between his employment and the accident that resulted in that injury, as required by s10(3A) of the 1987 Act” the words “or that the applicant was injured in the course of his employment”.
The application to amend the s 78 notice was opposed by the applicant and the second to fourth respondents.
Mr Rickard submitted the s 78 notice raised only a journey defense because the claim as pleaded suggest it was brought as a s 10 claim. He submitted there was no prejudice to any other party to the proceedings if the amendment was granted.
The applicant submitted the claim was plainly made on the basis the applicant was injured in the course of his employment and referred to the claim form under the heading “Incident Details” in which the applicant had ticked “at work – working away from normal place of work or base of operations”. The applicant submitted the allegation was plainly the deceased was in the course of his employment, and that claim had not been disputed by the first respondent, which had only raised a journey defense.
The applicant submitted if the amendment was allowed, she would suffer actual prejudice, as the applicant had not, for example, called evidence from the passenger in the motor vehicle as to what he and the deceased were doing or as to matters such as what was being carried in the vehicle at the time of the accident, and for what purpose. Counsel for the applicant submitted that evidence had not been obtained because there was no need to – the applicant had always maintained the deceased was a on a work trip at the direction of the first respondent and the claim form at no time alleged the deceased was engaged on a periodic journey at the time of the accident which led to his death.
The applicant also relied on the pleading in the Application, namely there was a fatal motor vehicle accident “while BJI was on his business trip”. Mr McManamey for the applicant submitted the claim was always clearly made on the basis the deceased was in the course of his employment at the time of the accident which led to his death, and that allegation had never been the subject of a dispute notice until the amendment sought by the first respondent at the hearing.
For the second respondent, Mr Hanrahan also opposed the application to amend the dispute notice and noted no application to amend it was made at the preliminary conference. He also noted no explanation was provided for the delay in making the application to amend or for alleging so late that the injury was not sustained in the course of employment. He submitted if the application was granted it would necessarily require an adjournment, potentially a lengthy one, for the parties obtain evidence to meet the additional matter placed in dispute.
Mr Hammond for the third respondent also opposed the application and adopted the submissions of the applicant and second respondent. Ms Grotte for the third respondent also opposed the application, adopted the submissions of the applicant and additionally submitted in terms of prejudice and the state of the evidence that it is not for an applicant to anticipate a defense which might be raised so late in proceedings. She submitted the first respondent’s application was a reaction late in the day to the applicant seeking to present her case as it always has been, namely the accident at issue took place in the course of the deceased’s employment.
Mr Rickard in reply rhetorically asked what further evidence may be called if the amendment was granted. He noted the factual investigation commissioned by the first respondent was part of the documents attached to the Application and dealt with all material factors in dispute on the question of whether the deceased was in the course of his employment.
After hearing the helpful submissions from all counsel, I refused the application to amend the dispute notice, and gave oral reasons for doing so on the record.
Counsel were each requested to make submission on the substantive proceedings. After hearing from the applicant and the second to fourth respondents, Mr Rickard was granted a short adjournment, after which he advised the Commission that given my ruling on the first respondent’s application to amend the terms of the dispute, the first respondent was not in a position to resist the applicant’s claim.
The matter accordingly proceeded to deal with the question of payment of the death benefit and apportionment between he nominated dependents of the deceased.
Payment of death benefit
The evidence filed with the Application discloses no one other than the applicant and second to fourth respondents was dependent on the deceased at the date of his death. Each of the deceased’s elder siblings disclose in statement evidence they were not dependent on him and that they do not wish to make a claim. I accept the evidence of ach of JM (sister), ZY (sister), ZC (sister), ZYC (sister) and QS (brother) to this effect.
The separately represented dependents of the deceased reached an in-principal agreement as to the apportionment between them. parties each submitted that 100% of the applicable death benefit should be paid to the applicant, and I accept those submissions. The proposed apportionment is as follows:
(a) applicant – 53% of the benefit sum;
(b) second respondent – 13% of the benefit sum;
(c) third respondent – 14% of the benefit sum, and
(d) fourth respondent – 20% of the benefit sum.
Having regard to the totality of the evidence and the age of the dependents, I am satisfied the proposed apportionment is appropriate in the circumstances and approve the in-principal agreement.
In relation to interest, the parties have reached agreement as to the applicable rate payable and the date from which interest is to be paid. That agreement is reflected in Order [9] of the Certificate of Determination.
In terms of funds management, the parties have agreed on the terms of orders, which are set out at Order [10] of the Certificate of Determination.
SUMMARY
For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.
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