Bollore Logistics Australia Pty Ltd v Nicola Michelle Pendry-Clare
[2024] NSWPIC 266
•22 May 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Bollore Logistics Australia Pty Ltd v Nicola Michelle Pendry-Clare & Ors [2024] NSWPIC 266 |
| APPLICANT: | Bollore Logistics Australia Pty Ltd |
| FIRST RESPONDENT: | Nicola Michelle Pendry-Clare |
| SECOND RESPONDENT: | Judy Gallieni as tutor of Joshua Michael James Clare |
| PRINCIPAL MEMBER: | Glenn Capel |
| DATE OF DECISION: | 22 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Death claim; determination of dependency, apportionment, and payment of death benefit, interest; TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd, and Wratten v Kirkpatrick & Ors discussed and applied; Held – death benefit and agreed interest apportioned and orders for payment. |
| DETERMINATIONS MADE: | The Commission determines: 1. The name of the second respondent is amended to Judy Gallieni as tutor of Joshua Michael James Clare. 2. The deceased worker, Rodney James Clare, died on 19 June 2022 as a result of injuries sustained arising out of or in the course of his employment with the applicant on 20 January 2021. 3. Nicola Michelle Pendry-Clare was partly dependent for support upon the deceased at the date of death. 4. Joshua Michael James Clare were wholly dependent for support upon the deceased at the date of death. 5. The deceased had no other persons dependent on him. 6. The applicant is liable for the payment of lump sum compensation and interest. 7. The lump sum compensation of $862,350 payable pursuant to s 25(1)(a) of the Workers Compensation Act 1987 is to be apportioned in accordance with s 29 of the of the Workers Compensation Act 1987 as follows: (a) Nicola Michelle Pendry-Clare – $431,175 (50%), and (b) Joshua Michael James Clare – $431,175 (50%). 8. Interest on the lump sum of $862,350 pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 is agreed as follows: (a) Nicola Michelle Pendry-Clare – $5,475.92 (50%), and (b) Joshua Michael James Clare – $5,475.92 (50%). The Commission orders: 9. The applicant to pay the first respondent $436,650.92 pursuant to s 85A(1)(a) of the Workers Compensation Act 1987 and s 109 of the Workplace Injury Management and Workers Compensation Act 1998. 10. The applicant to pay $436,650.92 to the New South Wales Trustee and Guardian pursuant to ss 25(1A) and 85(1)(c) of the Workers Compensation Act1987 and s 109 of the Workplace Injury Management and Workers Compensation Act 1998. |
STATEMENT OF REASONS
BACKGROUND
The deceased worker, Rodney James Clare, died on 19 June 2022 as a result of injuries sustained arising out of or in the course of his employment with Bollore Logistics Australia Pty Ltd (the applicant) on 20 January 2021.
The deceased’s spouse, Nicola Michelle Pendry-Clare (the first respondent), submitted a fatality claim form to the applicant’s insurer, Employers Mutual NSW Ltd (the insurer) on or about 12 August 2022.
Liability was accepted by the insurer pursuant to ss 25 and 26 of the Workers Compensation Act1987 (the 1987 Act) on 25 October 2023, subject to a determination of potential dependants.
On 26 October 2023, the applicant’s solicitor, Mr Harris, sent an email to the solicitor for the first respondent seeking particulars of any dependants and documentary evidence in respect of the claim for dependency. A similar email was sent on 25 October 2023 and a second email was sent on 8 December 2023 to the solicitor for Joshua Michael James Clare (the second respondent).
On 7 December 2023, the solicitor for the second respondent provided a response to the request for particulars.
On 14 February 2024, the solicitor for the second respondent provided a response to the request for particulars that attached various documents.
The applicant filed an Application in Respect of Death of Worker (the Application) in the Personal Injury Commission (Commission) on 21 February 2024, seeking payment of the lump sum death benefit of $862,350 in accordance with s 25(1)(a) of the 1987 Act, apportionment of the benefit in accordance with s 29 of the 1987 Act and an order authorising payment of the lump sum pursuant to ss 85(1)(c) and 85A(1)(a) of the 1987 Act.
PROCEDURE BEFORE THE COMMISSION
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. The parties were advised of the intention to determine the dispute without holding a conciliation conference or arbitration hearing.
A preliminary conference was conducted by Member Haddock on 26 April 2024. She was advised that the position of other potential dependants was unclear and the parties were investigating the possibility of setting up a trust for the second response as an alternative to a payment to the NSW Trustee.
The matter was reallocated to me and a further preliminary conference was scheduled on 21 May 2024. At that conference, I was informed that the parties had reached agreement as to a proposed apportionment as follows:
(a) Nicola Michelle Pendry-Clare – $431,175 (50%), and
(b) Joshua Michael James Clare – $431,175 (50%).
I was also informed that the parties had also reached agreement regarding interest in the sum of $10,951.84.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether there were any persons wholly or partly dependent on the deceased –
s 25 of the 1987 Act;(b) apportionment of the lump sum of $862,350 payable – s 29 of the 1987 Act, and
(c) orders in relation to payment of the compensation, interest and the management fee – ss 25 (1A), 85(1)(c) and 85A(1)(a) of the 1987 Act, and s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) Application and attached documents;
(b) first respondent’s Reply with attachments;
(c) second respondent’s Reply with attachments;
(d) Application to Admit Late Documents received on 3 April 2024, and
(e) Application to Admit Late Documents received on 17 May 2024.
Oral evidence
The parties did not seek leave to adduce oral evidence or cross examine any witnesses.
REVIEW OF EVIDENCE
Statement of Nicola Pendry-Clare
Nicola Pendry-Clare provided a statement on 7 November 2023. She confirmed that she met the deceased in 1997 and they married in 2001. They purchased a house in Seven Hills and they sold it in about 2009. They purchased a house in Blacktown and had a joint mortgage.
Ms Pendry-Clare indicated that her husband worked as a storeman and she was employed as a project accountant on a fulltime basis. Their salaries were paid into a joint account and the funds were used to pay the mortgage and household bills, as well as their son’s expenses. Their son, Joshua, is now 19 years old, and he has mild to moderate cerebral palsy and a moderate intellectual disability.
Ms Pendry-Clare stated that before her husband became depressed, he would do the cooking and he would play darts with their son. After her husband attempted suicide in January 2021, she decided that he should move out of the marital home and live with his mother and brothers as she felt that this was too distressing for Joshua and because she did not have the physical or emotional ability to look after both Joshua and her husband. It was agreed that he would move back home when he recovered from his depressive condition.
Ms Pendry-Clare advised that following her husband’s death, she received a death benefit from her husband’s superannuation fund. She used these funds to pay off the mortgage of approximately $260,000. She purchased a car and was left with about $10,000. She currently works as a bookkeeper for two businesses for about three hours per week, earning about $250 per week.
Ms Pendry-Clare stated that her son left school in 2022 and he works as a trainer in fitness and sports classes for adults and children with disabilities for 15 hours per week. He is paid about $18 per hour. He does not drive and he has a physical problem with his legs. He has difficultly running and he becomes tired very easily. He can only work for five hours at a time. Whilst he can read and write, he has difficulty comprehending things. She is unable to leave him overnight on his own because she is afraid that he might burn himself on the stove or flood the house accidentally, and she drives him to and from home. Most of her time is taken up supervising and driving her son to therapy. Since he left school, she has had to significantly increase the time spent supervising her son.
Ms Pendry-Clare stated that her son plays darts on five nights per week at various RSLs. She also takes him to competitions usually on every second weekend. She does not intend to work for longer hours as she wants to be able to devote all of her time for the care and benefit of Joshua. She expects that he will live with her for the rest of her life, even if he enters into a relationship.
Ms Pendry-Clare advised that she intends to invest any death benefit payment and live on any dividends from the investment. Her late husband’s mother is in her 70s and he has two sisters and three brothers. She did not indicate whether they might be dependent on her late husband.
Statement of Joshua Clare
Joshua Clare provided a testament on 29 February 2024. He confirmed that at the time of his father’s death he was in year 12. His father was not living in their home because of his psychological injury.
Mr Clare advised that he suffers from several medical conditions including cerebral palsy, a moderate intellectual disability, hydrocephalus and sleep apnoea. His treatment expenses were paid by his father, but his mother now attends to this. He also relies on her to transport him to medical appointments and social outings because he is unable to drive or catch public transport.
Mr Clare stated that in the last term before he left school, he obtained a volunteer position with Heroes With Ability, which provides opportunities for people with physical and intellectual disabilities to play sport at school and in the community. He later secured a part time position with this organisation for 15 hours per week. He earns $288.30 per week and also receives NDIS funding.
Mr Clare stated that he enjoyed playing darts four or five nights each week, and also on weekends. His mother drives him to and from these events. He had also recently started playing rugby league. He intends to live with his mother for the rest of his life and have her manage and look after his money.
Statement of Judy Galliani
Judy Galliani, a friend of the first respondent since they were 17 years old, provided a statement on 5 March 2024. She is in regular contact with Ms Pendry-Clare and indicated that she is a devoted and loving mother who devotes all of her time to Joshua’s care. She drives him to all of his commitments and she has no doubt that she will continue to act in Joshua’s best interests.
Statement of Jennifer Norus, Michelle McGonigle and Tracy Blackburn
Jennifer Norus, a solicitor employed by the first respondent’s solicitors, provided a statement on 4 March 2024. She advised that on 15 February 2024, she left voice messages for the family members of the deceased, namely Michelle McGonigle, Tracy Blackburn, Troy Clare, John Clare, Jim Clare and Cheryl Clare.
On 15 February 2024, she spoke with Michelle McGonigle. She explained that if she was financially dependent on the deceased, she should legal advice. Ms McGonigle advised that no one in her family would want to make a claim. She said that only the first and second respondents were dependent on the deceased at the time of his death.
Ms Norus indicated that on 16 February 2024, she spoke to Tracy Blackburn who provided a similar response. Copies of the emails and letters sent to the family members are in evidence.
As she received no response to her voice messages and letters to the other family members, Ms Norus again contacted Ms McGonigle, who informed her that they did not want to speak to her and would not be returning her calls.
Michelle McGonigle, the deceased’s sister, provided a statement on 15 February 2024. She confirmed that she did not want to make a claim on the death benefit because she had never been financially dependent on the deceased.
Tracey Blackburn, the sister of the deceased, provided an unsigned statement similar to that of her sister.
Documents
The deceased’s birth, marriage and death certificates, and the birth certificate of the second respondent are in evidence. These are consistent with the first respondent’s statement.
The autopsy report for the Coroner dated 27 June 2022 and attached documents confirmed that the deceased died as a result of a pulmonary thromboembolus that resulted from a deep vein thrombosis.
The first respondent’s tax return for the 2021 to 2022 financial year confirms her taxable income.
The second respondent has provided copies of his school reports and academic and employment records. There are also a large number of medical reports from his treating doctors that confirm his various health issues.
SUBMISSIONS
I did not call for submissions in relation to the dispute. I am satisfied that the parties have considered their respective rights.
REASONS
Dependency
In TNT Group 4 Pty Limited v Halioris[1], McHugh JA stated:
“Dependency is a question of fact: Potts v Niddre & Benhar Coal Co Ltd [1913] AC 531 at 539, 542; Aafjes v Kearney (1976) 50 ALJR 454 at 456, 457 and 459. It is concerned with actual and not theoretical support. A person claiming dependency need not be in actual receipt of support at the date of death. It is enough that, as at that date, he or she had a reasonable expectation of support in the future. Dependency may exist at the date of death although actual support cannot or is unlikely to occur until a future time.”[2]
[1] (1987) 3 NSWCCR 10; 8 NSWLR 486, (Halioris).
[2] Halioris, [489].
Further, in Kaur v Thales Underwater Systems Pty Ltd [3], President Keating stated:
“The question whether there is in fact dependence or reliance at the date of death is
not to be answered by looking only to the circumstances as they existed at that date;
‘past events and future probabilities’ have to be considered. (Aafjes v Kearney 180
CLR 199; [1976] HCA 5; 8 ALR 455; 50 ALJR 454, 456, 457 and 459 (Aafjes)).”[4]
[3] [2011] NSWCCPD 6 (Kaur).
[4] Kaur, [126].
According to the first respondent, she and her son were dependent on the deceased. She was employed but much of her time was spent attending to her son’s needs.
In the circumstances I am satisfied that the first respondent was partly dependent and the second respondent was wholly dependent on the deceased at the date of his death.
I am satisfied that there were no other persons wholly or partly dependent on him at the date of death.
Apportionment
In order to apportion the lump sum, it is necessary to review all of the relevant facts disclosed in the evidence. In Wratten v Kirkpatrick,[5] Egan A-CCJ stated:
“The exercise of power to determine the correct amount to be apportioned to each dependant requires an examination of all relevant facts including the extent of past dependence, the anticipated future dependence, the ages of the dependants, their health, special needs, lifestyle, etc.”[6]
[5] (1996) 15 NSWCCR 32 (Wratten).
[6] Wratten, [34].
Each case requires an examination of the individual facts as no two matters are identical. The parties came to a preliminary agreement in relation to apportionment of the lump sum death benefit and this was confirmed by the legal preservatives after the conference.
The first respondent would have had an expectation of ongoing support from the deceased but for his death. They shared the care of their son and her future expectations would be significant.
The second respondent would similarly have a significant expectation given the health issues that he has experienced in the past and that will continue throughout his adult life.
Having regard to the totality of the evidence, the apportionment suggested by the parties is in my view appropriate and properly reflects their respective expectations and entitlements.
Accordingly the lump sum benefit of $862,350 will be apportioned as follows:
(a) Nicola Michelle Pendry-Clare – $431,175 (50%), and
(b) Joshua Michael James Clare – $431,175 (50%).
Interest
The parties have reached agreement as to quantum of interest as follows:
(a) Nicola Michelle Pendry-Clare – $5,475.92 (50%), and
(b) Joshua Michael James Clare – $5,475.92 (50%).
The first respondent’s entitlement can be paid directly to her. Although the parties investigated the creation of a family trust to manage the second respondent’s entitlement, after considering my comments about such a proposal, the parties agreed that these funds should be paid to the New South Wales Trustee and Guardian.
FINDINGS
The name of the second respondent is amended to Judy Gallieni as tutor of Joshua Michael James Clare.
The deceased worker, Rodney James Clare, died on 19 June 2022 as a result of injuries sustained arising out of or in the course of his employment with the applicant on 20 January 2021.
Nicola Michelle Pendry-Clare was partly dependent for support upon the deceased at the date of death.
Joshua Michael James Clare were wholly dependent for support upon the deceased at the date of death.
The deceased had no other persons dependent on him.
The applicant is liable for the payment of lump sum compensation and interest.
The lump sum compensation of $862,350 payable pursuant to s 25(1)(a) of the 1987 Act is to be apportioned in accordance with s 29 of the 1987 Act as follows:
(a) Nicola Michelle Pendry-Clare – $431,175 (50%), and
(b) Joshua Michael James Clare – $431,175 (50%).
Interest on the lump sum of $862,350 pursuant to s 109 of the 1998 Act has been agreed as follows:
(a) Nicola Michelle Pendry-Clare – $5,475.92 (50%), and
(b) Joshua Michael James Clare – $5,475.92 (50%).
ORDERS
The applicant to pay the first respondent $436,650.92 pursuant to s 85A(1)(a) of the 1987 Act and s 109 of the 1998 Act.
The applicant to pay $436,650.92 to the New South Wales Trustee and Guardian pursuant to ss 25(1A) and 85(1)(c) of the 1987 Act and s 109 of the 1998 Act.
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