BTX v CPO
[2024] NSWPIC 77
•9 February 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | BTX v CPO & Ors [2024] NSWPIC 77 |
| APPLICANT: | BTX |
| FIRST RESPONDENT: | CPO |
| SECOND RESPONDENT: | BVU |
| THIRD RESPONDENT: | BTT |
| SENIOR MEMBER: | Elizabeth Beilby |
| DATE OF DECISION: | 9 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; application for lump sum death benefit; parties were able to propose consent orders so far as apportionment of the lump sum benefit pursuant to section 25(1)(a) plus interest; TNT Group 4 Pty Ltd v Halioris applied; Held – proposed apportionment assessed as appropriate; no other person could be considered dependant at the relevant time; orders made in accordance with proposed Consent Orders. |
| DETERMINATIONS MADE: | The Commission determines: 1. The names of the deceased, applicant, second and third respondents are to be de-identified in the publication of this decision. 2. The deceased worker, BPG, died on 24 April 2018, as a result of an injury arising out of or in the course of his employment with the applicant. 3. The applicant, second and third respondents were all either wholly or partially dependent on the worker for support at the date of his death and/or anticipated dependency as at the date of death. 4. There were no other persons dependent, or who claims dependency, on the worker for support at the date of his death. 5. The first respondent is liable for payment of the lump sum death benefit pursuant to s 25 (1) (a) of the Workers Compensation Act 1987 in the amount of $791,850. 6. The lump sum death benefit payable pursuant to s 25 (1) (a) of the Workers Compensation Act 1987 is to be apportioned as follows: (a) applicant $514,702.50; (b) second respondent: $138,573.75, and (c) third respondent: $138,573.75. 7. The first respondent is to pay interest on the lump sum benefit as follows: (a) applicant: $50,041.77; (b) second respondent: $13,472.79, and (c) third respondent: $13,472,79. 8. The sum payable to the NSW Trustee & Guardian on behalf of the second respondent for funds management fees pursuant to s 25(1A) of the Workers Compensation Act 1987 on the total payable of $152,046.54 and calculated in accordance with cl 177 of the Workers Compensation Regulation 2016 is $35,716.74. The first respondent is directed to pay these fees. 9. The sum payable to the NSW Trustee & Guardian on behalf of the third respondent for funds management fees pursuant to s 25(1A) of the Workers Compensation Act 1987 on the total payable of $152,046.54 and calculated in accordance with cl 177 of the Workers Compensation Regulation 2016 is $41,269.39. The first respondent is directed to pay these fees. 10. I direct that the entitlement of the second and third respondents is to be paid to the NSW Trustee and Guardian (until they reach the age of 18). 11. Pursuant to s 85A (1) of the Workers Compensation Act 1987 the lump sum benefit together with interest in respect of the applicant is to be paid directly to the applicant. |
STATEMENT OF REASONS
BACKGROUND
On 24 April 2018 BPG (the deceased) died. By way of Certificate of Determination dated 19 December 2023 a finding was made that he died as a result of an injury arising out of or in the course of his employment with the respondent on 15 February 2018.
BPG was married to the applicant and they shared one young child together, BVU (the second respondent). At the time of death, the applicant was pregnant with BPG’s second child, BTT (the third respondent).
The only substantive issues for determination at the telephone conference in this matter were the questions of dependency, apportionment of the death benefit, calculation of funds management fees and interest.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) dependency at the time of death;
(b) apportionment of the lump sum death benefit;
(c) funds management fees, and
(d) interest.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The claim was listed in the Personal Injury Commission (Commission) for a further telephone conference on 5 February 2024. The parties were able to agree to a proposed resolution of the matter at that time.
Dependency
A dependent is defined in s 4 of the Workplace Injury Management and Workers Compensation Act 1998 to include persons who were “wholly or in part dependent for support on the worker at the time of the worker’s death”.
A reasonable expectation that the deceased would provide future support can satisfy the concept of dependency.[1] This is relevant to the entitlement of the second and third respondents who were was born in 2016 and 2018 respectively.
[1] TNT Group 4 Pty Ltd v Halioris (1987) 8 NSWLR 486 at [490].
The applicant was married to the deceased at the time of his death. They had a happy marriage and looked forward to their future together. The applicant’s evidence outlines the support the deceased gave to her which included financial dependency together with household and domestic assistance.
The children of the deceased are young in age. There is no evidence that they have any health issues that require particular treatment or attention. They clearly were either dependent upon their father at the time of death, or there was an anticipated dependency upon him.
I find that the applicant was significantly dependent upon the deceased as at the time of death. They were in a happy marital relationship and lived together sharing expenses.
I find that the second and third respondents were dependent upon the deceased as at the date of death and they would have expected continued support financially but for his death.
I therefore make orders as sought by the parties in relation to the proposed apportionment The apportionment recognises the filed evidence which illustrates the dependency each party had on the deceased.
Interest
A claim was made for interest on the lump sum benefit.
The parties were able to agree on the entitlement to interest and this is reflected in the orders.
Orders
The names of the deceased, applicant, second and third respondents are to be de-identified in the publication of this decision.
The deceased worker, BPG, died on 24 April 2018, as a result of an injury arising out of or in the course of his employment with the applicant.
The applicant, second and third respondents were all either wholly or partially dependent on the worker for support at the date of his death and/or anticipated dependency as at the date of death.
There were no other persons dependent, or who claims dependency, on the worker for support at the date of his death.
The first respondent is liable for payment of the lump sum death benefit pursuant to s 25 (1) (a) of the Workers Compensation Act 1987 in the amount of $791,850.
The lump sum death benefit payable pursuant to s 25 (1) (a) of the Workers Compensation Act 1987 is to be apportioned as follows:
(a) applicant $514,702.50;
(b) second respondent: $138,573.75, and
(c) third respondent: $138,573.75.
The first respondent is to pay interest on the lump sum benefit as follows:
(d) applicant: $50,041.77;
(e) second respondent: $13,472.79, and
(f) third respondent: $13,472,79.
The sum payable to the NSW Trustee & Guardian on behalf of the second respondent for funds management fees pursuant to s 25(1A) of the Workers Compensation Act 1987 on the total payable of $152,046.54 and calculated in accordance with cl 177 of the Workers Compensation Regulation 2016 is $35,716.74. The first respondent is directed to pay these fees.
The sum payable to the NSW Trustee & Guardian on behalf of the third respondent for funds management fees pursuant to s 25(1A) of the Workers Compensation Act 1987 on the total payable of $152,046.54 and calculated in accordance with cl 177 of the Workers Compensation Regulation 2016 is $41,269.39. The first respondent is directed to pay these fees.
I direct that the entitlement of the second and third respondents is to be paid to the NSW Trustee and Guardian (until they reach the age of 18).
Pursuant to s 85A (1) of the Workers Compensation Act 1987 the lump sum benefit together with interest in respect of the applicant is to be paid directly to the applicant.
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