Bradley v ASAP Direct Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bradley v ASAP Direct Pty Ltd & Ors [2023] NSWPIC 485
APPLICANT:	Candice Bradley
FIRST RESPONDENT: SECOND RESPONDENT: THIRD RESPONDENT:	ASAP Direct Pty Ltd Lilli Grace Barrett Gabryella Neta Barrett
MEMBER:	Rachel Homan
DATE OF DECISION:	19 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Application for lump sum death benefit; liability to pay compensation accepted; meaning of “divorced spouse”; Held – orders with respect to dependants, apportionment of the lump sum, interest and management fees.
DETERMINATIONS MADE:	The Commission determines: 1. Mr Adam Barrett (the deceased worker) died on 3 February 2022 as a result of injury sustained in the course of employment. 2. Candice Bradley, Lilli Grace Barrett and Gabryella Neta Barrett were dependants of the deceased worker who were partly dependent for support upon him at the date of his death. 3. There were no other persons wholly or partly dependent for support upon the deceased worker at the date of his death. 4. The lump sum death benefit payable in accordance with s 25(1)(a) of the Workers Compensation Act 1987 is $849,300. 5. The lump sum death benefit is apportioned pursuant to s 29(1) of the Workers Compensation Act 1987 as follows: (a) $283,100 (one third) to Candice Bradley; (b) $283,100 (one third) to Lilli Grace Barrett; and (c) $283,100 (one third) to Gabryella Neta Barrett. The Commission orders: 1. The first respondent to pay $283,100 to Candice Bradley pursuant to ss 25(1)(a) and 85A(1)(a) of the Workers Compensation Act 1987. 2. The first respondent to pay $283,100 to Lilli Grace Barrett pursuant to ss 25(1)(a) and 85A(1)(a) of the Workers Compensation Act 1987. 3. The first respondent to pay $283,100 to the NSW Trustee & Guardian to be held in trust for the benefit of Gabryella Neta Barrett until she attains the age of 18 years pursuant to ss 25(1)(a) and 85(1)(a) of the Workers Compensation Act 1987. 4. The first respondent is to pay to Candice Bradley interest totalling $5,236.19 on her portion of the lump sum compensation, pursuant to s 109 of the Workplace Injury Management Workers Compensation Act 1998, as follows: (a) from 29 May 2023 to 6 June 2023 at the rate of 5.85% per annum, and (b) from 7 June 2023 to 18 September 2023 at the rate of 6.1% per annum. 5. The first respondent is to pay to Lilli Grace Barrett interest totalling $5,236.19 on her portion of the lump sum compensation, pursuant to s 109 of the Workplace Injury Management Workers Compensation Act 1998, as follows: (a) from 29 May 2023 to 6 June 2023 at the rate of 5.85% per annum, and (b) from 7 June 2023 to 18 September 2023 at the rate of 6.1% per annum. 6. The first respondent is to pay to the NSW Trustee & Guardian interest totalling $5,236.19 in respect of the Gabryella Neta Barrett’s portion of the lump sum compensation, pursuant to s 109 of the Workplace Injury Management Workers Compensation Act 1998, as follows: (a) from 29 May 2023 to 6 June 2023 at the rate of 5.85% per annum, and (b) from 7 June 2023 to 18 September 2023 at the rate of 6.1% per annum. 7. The first respondent to pay to the NSW Trustee & Guardian additional compensation fees in respect of the amounts at Orders 3 and 6 above in accordance with s 25(1A) of the Workers Compensation Act 1987 and cl 177 of the Workers Compensation Regulation 2016 to a total of $16,580.91. 8. Liberty to the parties to apply within 7 days in respect of the calculations above.

STATEMENT OF REASONS

BACKGROUND

Mr Adam Barrett (the deceased worker) died on 3 February 2022 as a result of injury sustained in the course of his employment with ASAP Direct Pty Ltd (the first respondent).
Liability to pay compensation in respect of the death has been accepted by the first respondent’s insurer.
The present proceedings were commenced by an Application in Respect of Death of Worker (the Application), lodged in the Personal Injury Commission (Commission) on
29 May 2023 by solicitors acting for Candice Bradley (the applicant). The applicant sought orders for payment of the lump sum death benefit pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act).
The Application named the deceased worker’s children with the applicant, Lilli Grace Barrett and Gabryella Neta Barrett, as second and third respondents respectively.

PROCEDURE BEFORE THE COMMISSION

The parties appeared at a preliminary conference on 16 August 2023 at which they were each legally represented.
During the preliminary conference, the first respondent confirmed that liability to pay compensation had been accepted.
Directions were made for the service and lodgement of additional evidence and written submissions on the outstanding issues.
The parties were advised of the Commission’s intention to the determine the Application at the conclusion of the timetable above, unless any matter arose requiring a further preliminary conference.

ISSUES FOR DETERMINATION

The following outstanding matters require determination by the Commission:
(a) the identification of any members of the deceased worker’s family as were wholly or in part dependent for support on him at the time of his death;
(b) orders with respect to apportionment and payment of the lump sum death benefit;
(c) orders with respect to discretionary interest pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and
(d) in relation to any lump sum death benefit paid to the NSW Trustee & Guardian for the benefit of the third respondent, orders in relation to the management fees payable pursuant to s 25(1A) of the 1987 Act.

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 and attached documents;
(b)    Reply lodged by the first respondent;
(c)    Reply lodged by the second respondent;
(d)    Reply lodged by the third respondent;
(e)    written submissions prepared on behalf of the applicant lodged on
21 August 2023;
(f)    written submissions prepared on behalf of the second respondent lodged on
21 August 2023;
(g)    written submissions prepared on behalf of the third respondent lodged on
29 August 2023;
(h)    documents attached to an Application to Admit Late Documents lodged by the first respondent on 29 August 2023, and
(i)    written submissions prepared on behalf of the first respondent lodged on
31 August 2023.

Dependants

Section 25(1) of the 1987 Act provides that if death results from an injury, the amount of compensation payable by the employer shall include a lump sum death benefit, which is to be apportioned among “any dependants who are wholly or partly dependent for support on the worker”.
The term, ‘dependants’ is defined in s 4 of the 1998 Act as:
“dependants of a worker means such of the members of the worker’s family as were wholly or in part dependent for support on the worker at the time of the worker’s death, or would but for the incapacity due to the injury have been so dependent, and includes—
(a)     a person so dependent to whom the worker stands in the place of a parent or a person so dependent who stands in the place of a parent to the worker, and
(b)     a divorced spouse of the worker so dependent, and
(c)     a person so dependent who—
(i)  in relation to an injury received before the commencement of Schedule 7 to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998—although not legally married to the worker, lived with the worker as the worker’s husband or wife on a permanent and genuine domestic basis, or
(ii)  in relation to an injury received after that commencement—is the de facto partner of the worker.
Note—
’De facto partner’ is defined in section 21C of the Interpretation Act 1987.”
The expression, “member of a family” is defined in s 4 of the 1998 Act to mean:
“member of a family means spouse (including wife or husband), father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother or half-sister.”

14. The term “spouse” is defined in s 4 of the 1998 Act to mean:

“spouse of a person means—
(a) in relation to an injury received before the commencement of Schedule 7 to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998—a person to whom the person is legally married (including a husband or wife), or
(b) in relation to an injury received after that commencement—
(i) a person to whom the person is legally married (including a husband or wife), or
(ii) a de facto partner of the person.”

Section 21C of the Interpretation Act 1987 relevantly states:
“(1)    Meaning of "de facto partner" For the purposes of any Act or instrument, a
person is the "de facto partner" of another person (whether of the same sex or
a different sex) if--
(a) the person is in a registered relationship or interstate registered
relationship with the other person within the meaning of the
Relationships Register Act 2010, or
(b) the person is in a de facto relationship with the other person.
(2)     Meaning of "de facto relationship" For the purposes of any Act or
instrument, a person is in a "de facto relationship" with another person if--
(a) they have a relationship as a couple living together, and
(b) they are not married to one another or related by family.
A de facto relationship can exist even if one of the persons is legally married to
someone else or in a registered relationship or interstate registered relationship with someone else.
(3)     Determination of "relationship as a couple" In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case--
(a) the duration of the relationship,
(b) the nature and extent of their common residence,
(c) whether a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any
arrangements for financial support, between them,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.
No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.”

Applicant

The applicant submits that she and the deceased worker were in a de facto relationship at the time of his passing.
The Commission was referred to the applicant’s statement, dated 29 May 2023, which recorded her evidence that:
(a)    the deceased worker and applicant reconnected in 2018 in a co-parenting relationship;
(b)    the deceased worker regularly attended upon the applicant’s property to assist with maintenance and also stayed overnight;
(c)    the deceased worker and the applicant shared parental responsibilities;
(d)    the deceased worker cared for the applicant’s dogs;
(e)    the deceased worker stayed with the applicant during holiday periods;
(f)    the deceased worker had no other partner;
(g)    the deceased worker only lived 5 minutes away from the applicant;
(h)    the applicant and the deceased worker were in regular contact despite working alternate shifts, and
(i)    the deceased worker expressed his love for the applicant regularly.
The applicant submitted that, when taken as a whole, the above facts supported the conclusion that she and the deceased worker were in a de facto relationship as defined by s 21C of the Interpretation Act 1987.
None of the respondents made any submissions to the contrary.
I am not, however, satisfied that the applicant and the deceased worker were in a de facto relationship at the time of his death. The applicant’s submissions overlook that the fact that the statutory definition of a de facto relationship contains two elements, namely:
(a) living together, and
(b) a relationship as a couple.
Whilst the facts above might be relevant to establishing “a relationship as a couple” or dependency, I am not satisfied that the element of “living together” is established.
The evidence before me indicates that the applicant and deceased worker were not living together at the time of his death, nor was this a temporary arrangement. The applicant in her statement dated 25 February 2022 stated that she and the deceased worker “had not been in a relationship with each other since 2015”.
The applicant’s statement evidence does, however, indicate that a de facto relationship between the applicant and deceased worker previously existed. The applicant and deceased worker were in a relationship between 2004 and 2008 and had two children together, the second and third respondents, during that time.
The applicant and deceased worker commenced living together in 2005. Although it appears they did live separately at various times thereafter, the applicant states that this was due to the deceased worker’s psychiatric condition. They would live together when the deceased worker was medicated and receiving support.
After separating in 2008, the applicant and deceased worker commenced living together again in 2010 and resumed their relationship until 2012, during which time, a third child was conceived. That child, a son named Jack, was stillborn at 24 weeks. The applicant described her relationship with the deceased worker thereafter as “on and off” until 2015.
As indicated above, the statutory definition of “dependants” in s 4 of the 1998 Act, includes a “divorced spouse”. “Spouse” is in turn defined to include a “de facto partner”. I accept on the uncontradicted evidence above that the applicant and deceased worker were de facto partners, at various times, particularly between 2005 and 2008 and 2010 and 2012.
In considering the meaning of the term “divorced”, in light of the expanded definition of “spouse”, I accept that it should not be limited to a judicial decree terminating the marriage between a husband and wife. The Macquarie Dictionary definition of the term “divorce” includes:
“1.     The termination of a marriage by judicial decree.
2.     any formal separation of husband and wife according to established custom.
3.     a complete separation of any kind.”
I am satisfied that there was a complete separation of the de facto relationship between the applicant and deceased worker in or around 2015. For the purposes of the definition of the “dependants” in s 4 of the 1998 Act, therefore, I accept that the applicant was the deceased worker’s “divorced spouse”.
It remains necessary to determine whether the applicant was wholly or in part dependent for support on the deceased worker at the time of his death.
In TNT Group 4 Pty Limited v Halioris (1987) 3 NSWCCR 10; 8 NSWLR 486, McHugh JA stated (at [489]):
“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.”
In Richardson v Turfco Australia Pty Ltd [2016] NSWWCCPD 43 (Richardson), Keating P identified a number of general statements of principle for determining dependency at [65]:
“(a)    dependency is not limited to the class of persons actually in receipt of financial assistance (Sadiq);
(b)     dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased (Amaca Pty Ltd v Novek [2009] NSWCA 50);
(c)     although dependency is not limited to financial dependency, it does involve one person being beholden to another for some material or physical help or succour, emotional dependency is not enough (Skinner);
(d)     ‘dependent’ in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed (Petrohilos);
(e)     a mother’s services to a young child may satisfy the test of dependency. To suggest that, in a money sense they are valueless, is simply wrong (Petrohilos);
(f)      while one of the commonest forms of dependence might be financial dependence, the word used in the statute (which I infer is the Conveyancing Act 1919) is not limited to financial dependence (Williams), and
(g)     the word ‘partly’ in the phrase ‘partly dependent’, whilst a word of ‘some elasticity’, does not mean ‘substantially’, but means ‘more than minimally’, or perhaps, ‘significantly’ (Bremner v Graham [2016] NSWSC 633 at [34] citing Priestley JA at [4] (with whom Hope AJA agreed) in McKenzie v Baddeley [1991] NSWCA 197) (McKenzie)). Meagher JA, in McKenzie at [6], commented that ‘[c]ommon sense requires that certain trivial activities should be disregarded’.”
The applicant has provided uncontradicted evidence that even after their separation in 2015, she remained reliant on the deceased worker for support in the manner described in her statement of 29 May 2023 and summarised above. I am further satisfied that the applicant had an expectation that she would continue to be reliant on the deceased worker for support in the future.
For the reasons given above, I am satisfied for the purposes of s 25(1)(a) of the 1987 Act that the applicant was a “dependant” of the deceased worker who was partly dependent for support on him.

Second respondent

The NSW Birth Certificate of the second respondent indicates that she was the child of the deceased worker, born on 6 July 2005. The second respondent was 16 years old at the time of the deceased worker’s death.
In a written statement made by the second respondent on 29 May 2023, she described the manner in which the deceased worker supported her, including:
(a)    driving her to and from school and her casual job;
(b)    giving her cash for spending money, presents and entertainment expenses;
(c)    buying meals and groceries;
(d)    purchasing a car and paying for driving lessons;
(e)    putting together furniture and other equipment;
(f)    paying for hair and makeup and the ticket for her Year 10 formal, and
(g)    watching her netball games.
I am satisfied on the uncontradicted evidence before me that the second respondent was a member of the deceased worker’s family who was partly dependent for support on him at the date of his death.

Third respondent

The NSW Birth Certificate of the third respondent indicates that she was the child of the deceased worker, born on 24 January 2007. The third respondent was 15 years old at the time of the deceased worker’s death.
In a written statement made by her on 26 May 2023, the third respondent described the manner in which the deceased worker supported her, including:
(a)    taking her to netball training and games;
(b)    taking her out for meals;
(c)    driving her to and from school and her casual job;
(d)    washing clothes, packing lunch and cooking meals;
(e)    shopping for school supplies and clothing, and
(f)    giving her cash for presents, entertainment expenses and spending.
I am satisfied on the uncontradicted evidence before me that the second respondent was a member of the deceased worker’s family who was partly dependent for support on him at the date of his death.

Other potential dependants

The evidence before me includes statutory declarations made by the deceased worker’s parents, Christine Devlin and Robert Barrett as well as his sister, Melanie Clark. That evidence confirms that the deceased worker had previously been in a de facto relationship with the applicant and that he was the biological father of the second and third respondents. Each of the family members stated that they were not aware of the deceased worker being in a relationship at the time of his death or that there were any potential dependants other than the second and third respondents.

Each of the family members indicated that they were aware of the claim for compensation in respect of the death and their entitlement to claim a portion of the lump sum death benefit. Each family member said they had sought legal advice and did not wish to make a claim for any portion of the death benefit.
A statutory declaration has also been provided from the deceased worker’s step-father, Neville Devlin, stating that he was not dependent on the deceased worker and did not intend to make a claim.
The evidence indicates that the applicant has a third daughter, Isabella, born in 2014. The deceased worker was not Isabella’s biological father and it has not been suggested in any of the evidence that she was dependent upon him for support.
I am satisfied that appropriate enquiries have been made and there is no evidence of any other family member who may have been dependent on the deceased worker at the time of his 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 (1996) 15 NSWCCR 32 ([at 34]), Egan A-J 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.”
The applicant, second respondent and third respondent have agreed that a one third portion of the lump sum death benefit should be apportioned to them each. Having regard to the evidence before the Commission, I am satisfied that the proposed apportionment is appropriate.

Interest

Section 109 of the 1998 Act provides:
“109   Interest before order for payment (cf former s 113)
(1)In any proceedings before the Commission, the Commission may order that there is to be included, in any sum to be paid, interest at such rate as the Commission thinks fit on the whole or any part of the sum for the whole or any part of the period before the sum is payable, subject to the limitations imposed by this section.
(2)    Interest cannot be ordered under this section:
(a)on any compensation payable under Division 4 of Part 3 of the 1987 Act, or
(b)   on any compensation payable under this Act for any period before a claim for the compensation was duly made, or
(c)on any compensation payable under this Act for any period during which proceedings before the Commission were adjourned on the application of the claimant for the compensation or pursuant to section 102.
(3)    This section does not:
(a)authorise the giving of interest upon interest, or
(b)apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise.”
In Kaur v Thales Underwater Systems Pty Ltd[1] (Kaur), President Keating J stated at [139]:
“Section 109(2)(b) of the 1998 Act prohibits interest on any award of compensation payable under the Act for any period before a claim for the compensation was duly made. I accept the submission that the claim for compensation on behalf of the appellants was not duly made until the day of the arbitration. I therefore accept Thales’s submission that, as at the arbitration, the appellants could not be entitled to interest pursuant to s 109 of the 1998 Act.”
[1] [2011] NSWWCCPD 6 at [139].
In Brambles Australia Ltd t/as Gardner Perrott Industrial Services v Hamilton & Monier Ltd[2] Harrington ADP at [43] stated that an exercise of the discretion to order interest would depend on the evidence before the Commission, and relevant evidence may include reasons for a delay in the determination of the claim.
[2] [2006] NSWWCCPD 169.
In Pheeney v Doolan (No. 2)[3] the Court of Appeal said of the interest provision:
“It provides an ancillary power akin to an order for costs, and its purpose is to aid the court to do more complete justice between the parties that is otherwise possible … It is not designed to compensate a plaintiff for loss arising out of the cause of action, but to provide compensation where it is otherwise appropriate to do so for the circumstance that a sum of money has been outstanding to him for a period of time.”
[3] [1977] 1 NSWLR 601.
The discretion to award interest is subject to the limitations set out in ss 109(2) and (3). Relevantly, subsection (2)(b) provides that interest cannot be ordered on any compensation payable for any period before a claim for the compensation was “duly made”.
Section 260 of the 1998 Act provides that a claim for compensation must be made in accordance with the Workers Compensation Guidelines (the Guidelines). In respect of claims for payments in the event of death, the Guidelines note, amongst other things, that in order to pay compensation an insurer must determine whether there are any dependants who are eligible for the lump sum death benefit and how the benefit should be apportioned. Anyone who believes they are dependent must supply enough information for the insurer to determine if they meet the legal definition of a dependant.
The parties have agreed that the applicant’s claim was fully particularised and therefore duly made at the time of service of the Application, being 29 May 2023.
There is a dispute between the parties as to when the second and third respondents’ claims were duly made. The first respondent submits that was the date on which evidence of their dependency was provided, which was the date of service of their Replies, being 13 July 2023 and 23 June 2023 respectively.
The second respondent submits that her claim was fully particularised with the Application. The Application identified that the second respondent was a dependant. The material attached to the Application identified that the second respondent was the deceased worker’s child and under the age of 18 at the time of his death and as at the date of lodgement of the Application. The nature of the second respondent’s dependence on the deceased worker was particularised in the applicant’s statement as well as the statements of the deceased worker’s parents and sister. There was no basis to suggest that the second respondent might not claim a portion of the lump sum in all the circumstances.
The third respondent submits that interest should be paid from the date of filing of the Application but does not address further the matters raised by the first respondent.
I have considered the submissions and the evidence before the Commission. It is clear that by the time the Application was served, the first respondent was on notice that the second and third respondents were minor children of the deceased worker who were entitled to claim a portion of the lump sum. The documentary evidence attached to the Application included their birth certificates and the death certificate listing their ages and their relationship to the deceased worker. The statement evidence from the applicant indicated that the second and third respondents would see the deceased worker regularly and he would assist with picking them up from work and sporting activities. They would go out for dinner all the time. The Application indicated a claim was made on their behalf by their mother, the applicant, by the identification of the second and third respondents as parties to the proceedings.
The Reply lodged by the first respondent indicates that it was in possession of statement evidence from other family members dated in February 2022 identifying the second and third respondents as dependents to whom the lump sum should be paid.
In all the circumstances, I am satisfied that claims by or on behalf of the second and third respondents were duly made as at 29 May 2023, notwithstanding the subsequent lodgement of their Replies.
I am satisfied that it is appropriate in this case to exercise my discretion to award interest on the lump sums to be apportioned to each of the dependants from 29 May 2023 to the date of this Certificate of Determination.
Section 109(1) provides that the Commission may order interest at such a rate as it thinks fit. The approach of the Commission has been to award interest at a rate consistent with recent rates of interest. In a number of recent decisions at the arbitral level a rate of interest 2% above the Reserve Bank of Australia cash rate has been found to be appropriate.[4]
[4] See Zona Coatings; Cassegrain Tea Tree Oil Pty Ltd v BBS & Ors [2022] NSWPIC 590; and BFG v Polyfoam (Sydney) Pty Ltd & Ors [2022] NSWPIC 724.
In McGrath v P.M. Electric Pty Limited [2023] NSWPICPD 3, Parker ADP, found the legislature intended the decision maker to have a very wide discretion as to the correct rate of interestfor the purpose of s 109. The member in that case had adopted the Reserve Bank cash rate plus an additional amount of 2% reflecting what the appellant would likely have earned had the funds been paid to her earlier. This determination was found to accord with other decisions in the Commission and achieve a measure of consistency in relation to awarding interest more broadly. Acting Deputy President Parker said:
“..in my view the outcome reached by the Member is neither unjust nor unreasonable so as to bespeak error otherwise undetectable. As at 6 March 2020, the cash rate was notoriously at 0.1%. I am not persuaded that an allowance of 2% in addition to the cash rate as at the date of the determination is wrong or unfair to the appellant.”
The parties have accepted this to be an appropriate rate in the circumstances of this case.
I determine that interest is to be paid on the portion of the lump sum death benefit payable to each dependant to the date of this Certificate of Determination at the following rates:
(a)from 29 May 2023 to 6 June 2023 at the rate of 5.85% per annum, and
(b)from 7 June 2023 to the date of this Certificate of Determination at the rate of 6.1% per annum.

Payment

In all the circumstances, I accept that it is appropriate to authorise payment of the compensation to which the applicant and second respondent are entitled to them directly pursuant to s 85A(1)(a) of the 1987 Act.
As the third respondent is a minor, I consider it appropriate that an order be made, in accordance with the Commission’s usual practice for the compensation to which she is entitled, to be paid to the NSW Trustee to be held in trust for the third respondent’s benefit of until she attains the age of 18 years pursuant to ss 25(1)(a) and 85(1)(a) of the 1987 Act.

[2023] NSWPIC 485

19 September 2023