Bott v Workers Compensation Nominal Insurer (iCare) - [2021] NSWPIC 474

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bott v Workers Compensation Nominal Insurer (icare) [2021] NSWPIC 474
APPLICANT:	Madeline Emily Bott
FIRST RESPONDENT:	Myles Hunter Transport Pty Limited
SECOND RESPONDENT:	Workers Compensation Nominal Insurer (icare)
MEMBER:	John Isaksen
DATE OF DECISION:	19 November 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum death benefit and funeral expenses by de facto spouse of the deceased; first respondent puts in issue whether the deceased was a worker (pursuant to section 4 of Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)) and/or deemed worker (pursuant to clause 2 of Schedule 1 of the 1998 Act); reference to Stevens v Brodribb Sawmilling Co P/L, On Call Interpreters and Translators Agency P/L v Commissioner of Taxation (No.3) and Malivanek v Ring Group P/L on the issue of worker; reference to Humberstone v Northern Timber Mills and Scerri v Cahill on the issue of deemed worker; relevant date when interest on the lump sum death benefit should run from and rate of interest to be applied; Held – deceased was a worker because he was working in the business of the first respondent and not his own business as at the date of his injury and death; worker was also a deemed worker because he was not regularly carrying out contract driving for himself as at the date of his injury and death; lump sum death benefit to be paid to the applicant, as well as the payment of funeral expenses; interest awarded at the rate of 2% per annum from when full particulars of the claim were provided to the respondents.
DETERMINATIONS MADE:	1. Ethan William McCauley Hunter (the deceased worker) was a worker who was employed by the first respondent when he died as a result of injury sustained in the course of his employment with the first respondent on 23 February 2021. 2. The deceased worker was also a deemed worker within the meaning of clause 2 of Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and taken to be employed by the first respondent when he died as a result of injury sustained in the course of his employment with the first respondent on 23 February 2021. 3. The deceased worker’s de facto spouse, Madeline Emily Bott, was dependent upon the deceased worker for support as at the date of his death. 4. There were no other persons dependent upon the deceased worker for support. 5. The lump sum death benefit payable in accordance with section 25 of the Workers Compensation Act 1987 (the 1987 Act) at the date of death of the deceased worker is $834,200. 6. The first respondent was not insured as required by the 1987 Act as at the date of injury and death of the deceased worker.
ORDERS MADE:	1. The first respondent is to pay the applicant, Madeline Emily Bott, the lump sum death benefit of $834,200 pursuant to section 25 and section 85A of the 1987…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWPIC 474
Decision Date: 19 November 2021

CaseChat Overview and Summary

The case of Bott v Workers Compensation Nominal Insurer (iCare) involved the claimant, Bott, seeking a lump sum death benefit and funeral expenses following the death of her de facto spouse. The dispute centred around whether the deceased was considered a worker under the provisions of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The first respondent contested the claim by questioning the deceased's status as a worker or a deemed worker, according to the definitions in the 1998 Act. The matter was heard and determined in the Workers Compensation Nominal Insurer.

The legal issues before the court were whether the deceased was a worker and if he could also be considered a deemed worker under the provisions of the 1998 Act. The court examined the relevant case law, including Stevens v Brodribb Sawmilling Co P/L, On Call Interpreters and Translators Agency P/L v Commissioner of Taxation (No.3) and Malivanek v Ring Group P/L to determine the worker status, and Humberstone v Northern Timber Mills and Scerri v Cahill to establish the deemed worker status. Additionally, the court considered the relevant date from which interest on the lump sum death benefit should run and the appropriate rate of interest to be applied.

The court found that the deceased was indeed a worker under the 1998 Act as he was working in the business of the first respondent and not in his own business at the time of his injury and death. Furthermore, the deceased was also a deemed worker because he was not regularly carrying out contract driving for himself at the time of his injury and death. Consequently, the court ordered that the lump sum death benefit be paid to Bott, along with the payment of funeral expenses. The court also ruled that the interest on the lump sum death benefit should be paid at a rate of 2% per annum from the date when full particulars of the claim were provided to the respondents.

The final orders of the court were that Bott was to receive the lump sum death benefit and funeral expenses, and that interest on the death benefit was to be paid at a rate of 2% per annum from when full particulars of the claim were provided to the respondents.

Orders