BHI v Pat Logistics Pty Ltd
[2023] NSWPIC 155
•14 April 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | BHI v PAT Logistics Pty Ltd & Ors [2023] NSWPIC 155 |
| APPLICANT: | BHI |
| FIRST RESPONDENT: | PAT Logistics Pty Limited |
| SECOND RESPONDENT: | BIQ |
| THIRD RESPONDENT: | BJJ |
| FOURTH RESPONDENT: | BKI |
| FIFTH RESPONDENT: | BLC by her tutor BCY |
| SENIOR MEMBER: | Elizabeth Beilby |
| DATE OF DECISION: | 14 April 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; death claim; no dispute that the first respondent was liable to pay the lump sum benefit pursuant to section 25(1)(a); 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 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 payable; orders made accordingly. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant, the second, third, fourth and fifth respondents were dependent upon the deceased as at the date of his death on 19 May 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 (the 1987 Act) as at the date of death was $838,750. 4. The lump sum of $838,750 is to be apportioned upon the dependants in the following way: (a) BHI - $443,750.00 (b) BIQ - $60,000.00 (c) BJJ - $60,000.00 (d) BKI - $100,000.00 (e) BLC - $175,000.00 5. I direct first respondent to pay respective interest on the lump sum benefit as follows: (a) BHI - $3,768.84 (b) BIQ - $509.59 (c) BJJ - $509.59 (d) BKI - $849.31 (e) BLC - $1,486.30 6. I direct that the entitlements to the applicant, the second, third and fourth respondents be paid to them directly. 7. The fifth respondent’s entitlement is to be paid to the New South Wales Trustee and Guardianship and is to be held by them until she reaches her majority. The first respondent is directed to also pay management and/or investment fees which are to be levied by the New South Wales Trustee and Guardian on the funds paid to BLC in the sum being $19,266.66. |
STATEMENT OF REASONS
BACKGROUND
BMB (the deceased) was involved in a traffic accident and died on 19 May 2021 in the course of his employment.
BMB was married to the applicant and of that marriage there were four children, namely the second, third, fourth and fifth respondents. BMB had a close relationship with all named dependants and the evidence discloses that the applicant and all four named dependant respondents were dependent upon the deceased as of the date of his death.
The first respondent (the employer) had 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) in the sum of $838,750.
The matter was listed for arbitration on 3 April 2023. The parties were able to agree at that time in relation to a proposed distribution of the lump sum benefit including any entitlement to interest and fund management fees.
The parties have filed both joint submissions and consent orders in respect of that agreement.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute before the listed arbitration:
(a) Dependency at the time of death;
(b) Apportionment of the lump sum death benefit; and
(c) Entitlement to interest on the lump sum death benefit.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute;
(b) Reply to the Application by each respondent.
(c) Late documents dated 13 February 2023 and 9 March 2023.
(d) Submissions from the applicant dated 28 March 2023.
(e) Submissions from the respondent dated 30 March 2023.
CONSIDERATION
The parties have filed applications in respect of their respective claimed entitlements, and it is apparent from the documentation that there are only five persons who could be and wish to be considered as dependent upon the deceased as at the time of his death.
A dependant is defined in s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to include persons who were “wholly or in part dependent for support on a worker at the time of the worker’s death”.
Once the proposed apportionment had been reached, the dependants were directed to file Joint Submissions in support of the proposed apportionment. Submissions dated 5 April 2023 were received by the Commission and have been signed by those that represent the dependent parties.
The submissions outline and provide support for the proposed apportionment. I agree with the submissions that are made in that document as to why the apportionment is appropriate.
It should be observed that prior to the deceased forming a relationship with the applicant, he was previously married and there were two children of that marriage namely BNA and BRC.
The evidence discloses that there has been no contact with the children of the former marriage for a significant period of time and there is no evidence before me that those children were afforded any financial assistance from the deceased. In those circumstances, and particularly given those children are now adults having both been born before 1996, it seems to me that there is no evidence before me to make a finding that they were dependant upon their natural father as at the date of his death. Similarly, there was no contact with the deceased’s ex-wife for an extremely significant period of time. There is also no evidence of any financial assistance given to her or the two children as at the date of death.
After considering the documentation I have formed the view and make an associated finding that there was no other person who could be or should be considered to be dependent on the deceased as at the date of death.
I therefore make orders in accordance with the submissions made in the joint submissions in relation to agreed apportionment.
Interest
A claim was made pursuant to s 109 of the 1998 Act in respect of interest on the lump sum death benefit. It was submitted that interest ought to be apportioned on a pro rata basis, a submission with which I agree.
The joint submissions outline the agreed rates for interest and I find that they are appropriate in the circumstances and orders are made accordingly.
Trust Management Fees
The fifth respondent has not reached the age of her majority and therefore she is entitled for fund management fees to be paid by the first respondent.
Agreement was reached in relation to the appropriate calculation in the sum of $19,266.66. It is appropriate that that is paid pursuant to her entitlement.
Orders
1. The applicant, the second, third, fourth and fifth respondents were dependent upon the deceased as at the date of his death on 19 May 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 (the 1987 Act) as at the date of death was $838,750.
4. The lump sum of $838,750 is to be apportioned upon the dependants in the following way:
a.BHI - $443,750.00
b.BIQ - $60,000.00
c.BJJ - $60,000.00
d.BKI - $100,000.00
e.BLC - $175,000.00
5. I direct first respondent to pay respective interest on the lump sum benefit as follows:
a.BHI - $3,768.84
b.BIQ - $509.59
c.BJJ - $509.59
d.BKI - $849.31
e.BLC - $1,486.30
6. I direct that the entitlements to the applicant, the second, third and fourth respondents be paid to them directly.
7. The fifth respondent’s entitlement is to be paid to the New South Wales Trustee and Guardianship and is to be held by them until she reaches her majority. The first respondent is directed to also pay management and/or investment fees which are to be levied by the New South Wales Trustee and Guardian on the funds paid to BLC in the sum being $19,266.66
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