Bolton v Lindsay Brothers Management Pty Ltd

[2022] NSWPIC 603

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Bolton v Lindsay Brothers Management Pty Ltd & Anor [2022] NSWPIC 603

APPLICANT:

Constance Bolton

FIRST RESPONDENT:

Lindsay Brothers Management Pty Limited

SECOND RESPONDENT:

Marites Blen Carao

PRINCIPAL Member:

Josephine Bamber

DATE OF DECISION:

2 November 2022

CATCHWORDS:

WORKERS COMPENSATION - Apportionment of lump sum death benefit pursuant to section 25 of the Workers Compensation Act 1987 (1987 Act) in accordance with agreement reached by the parties; Held – the compensation payable by the applicant in accordance with section 25(1)(a) of 1987 Act on the death of the deceased worker is $798,100.

determinations made:

1.     That the deceased worker, John Joseph Bolton, died on or about 13 November 2018 as a result of injuries sustained in the course of his employment with the first respondent.

2. That the compensation payable by the applicant in accordance with s 25(1)(a) of the Workers Compensation Act 1987 on the death of the deceased worker is $798,100.

3.     That Constance Bolton and Marites Blen Carao were partly dependent for support upon the deceased worker at the date of his death.

4.     That no other persons were dependent for support upon the deceased worker at the date of his death.

5. Pursuant to s 29 of the Workers Compensation Act 1987 the apportionment of lump sum payment between the dependents is as follows:

a.     Constance Bolton $239,430 being 30%, and

b.     Marites Blen Carao $558,670 being 70%.

6. Pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 the first respondent is to pay a total of $6,300 for interest to be paid as follows:

(a)    Constance Bolton $1,890, and

(b)    Marites Blen Carao $4,410.

STATEMENT OF REASONS

BACKGROUND

1. John Joseph Bolton died on or about 13 November 2018 as a result of injuries sustained in the course of his employment with the first respondent.

2. As the first respondent has admitted liability for compensation flowing from Mr Bolton’s death it is not necessary for the details of his injury and death to be summarised in these reasons.

3. In the Application in Respect of the Death of a Worker (the Application) orders are sought in relation to the apportionment of the lump sum provided by s 25 of the Workers Compensation Act 1987 (the 1987 Act). The Application is amended to delete the lump sum figure of $862,300 and to insert $798,100. The name of the first respondent is also amended in the Application to Lindsay Brothers Management Pty Ltd.

4. Constance Bolton, the applicant, is the mother of the deceased and Marites Blen Carao, the second respondent is his defacto. They are the only persons claiming dependency on the deceased worker at the time of his death.

PROCEDURE BEFORE THE COMMISSION

1. Preliminary conferences were convened before me on 30 August 2022 and 27 September 2022.

2. Mr Grant Holman, solicitor, appeared for the applicant, who was present. Mr Doyle Myles, solicitor, appeared for the first respondent instructed by Ms Liza Dean from icare and
   Ms Renee Hudson from the insurer. Ms Kari Hilton, solicitor, appeared for the second respondent at the more recent conference.

3. The parties were directed to file written submissions in relation to the issues relating to apportionment. However, thereafter on 25 October 2022 the parties came to an agreement as to apportionment of the lump sum and sent to the Commission consent orders setting out their agreement.

EVIDENCE

Documentary evidence

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

   (a)    the Application;

   (b)    first respondent’s Reply;

   (c)    letter from the applicant’s solicitors dated 2 September 2022;

   (d)    Amended Application joining the second respondent to the proceedings;

   (e)    second respondent’s Reply;

   (f)    letter from the applicant’s solicitors dated 21 September 2022 and attachments;

   (g)    letter from the applicant’s solicitors dated 23 September 2022 and attachments;

   (h)    letter from the first respondent’s solicitors dated 30 September 2022;

   (i)    Application to Admit Late Documents (AALD) filed by the second respondent dated 10 October 2022, and

   (j)    AALD filed by the applicant dated 14 October 2022.

FINDINGS AND REASONS

1. The applicant’s solicitors in their correspondence dated 21 September 2022 attached statutory declaration from Michael Joseph Bolton, the brother of the deceased, who advised he did not wish to make a claim for dependency. Statutory declarations are also attached from the following relatives of the deceased who all state they do not wish to make a claim: Danny Bolton, Joseph Patrick Bolton, Rebecca Bolton, Sarah-Jane Bolton, and Hayley Kim Freebairn.

2. Based upon the entirety of the evidence before the Commission, and noting the parties agreement, I find that Constance Bolton and Marites Blen Carao were partly dependent on the deceased for support at the time of his death.

3. I am satisfied and find that no other person was dependent for support on the deceased at the time of his death.

4. The parties have come to an agreement that the lump sum and interest should be apportioned with a 30% share to Constance Bolton and 70% share to Marites Blen Carao. Pursuant to s 29 of the 1987 Act I apportion the lump sum in these proportions as I consider this is appropriate based upon all of the evidence. Given the parties’ agreement and because no minors are involved it is not necessary for more detailed reasons to be given in this matter.