Caltabiano v Pool & Spa Builders (Aust) Pty Ltd - [2021] NSWPIC 532

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Caltabiano v Pool & Spa Builders (Aust) Pty Ltd [2021] NSWPIC 532
APPLICANT:	Clara Caltabiano
FIRST RESPONDENT:	Pool & Spa Builders (Aust) Pty Ltd
SECOND RESPONDENT:	Natalie Schulte as Tutor of Malakai Caltabiano
MEMBER:	Glenn Capel
DATE OF DECISION:	23 December 2021
CATCHWORDS:	WORKERS COMPENSATION - Death claim; determination of dependency, apportionment and payment of death benefit; 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 apportioned and orders for payment.
DETERMINATIONS MADE:	1. The deceased worker, Michael Joseph Caltabiano, died on 22 July 2018 as a result of injuries sustained during the course of his employment with the first respondent on 24 July 2007. 2. Clara Caltabiano and Malakai Caltabiano were partly dependent for support upon the deceased at the date of death. 3. The deceased had no other persons dependent on him. 4. The first respondent is liable for the payment of lump sum compensation.
ORDERS MADE:	5. The lump sum compensation of $791,850 payable pursuant to section 25(1)(a) of the Workers Compensation Act1987 is to be apportioned in accordance with section 29 of the Workers Compensation Act1987 as follows: (a) Clara Caltabiano - 90%, and (b) Malakai Caltabiano -10%. 6. The first respondent to pay the applicant $712,665 pursuant to section 85A(1)(a) of the Workers Compensation Act1987. 7. The first respondent to pay $79,185 to the New South Wales Trustee and Guardian to hold on trust pursuant to section 85(1)(c) of the Workers Compensation Act1987 until Malakai Caltabiano attains the age of 18 years.

STATEMENT OF REASONS

BACKGROUND

The deceased worker, Michael Joseph Caltabiano, died on 22 July 2018 as a result of injuries sustained during the course of his employment with the first respondent on
24 July 2007.
On 16 November 2018, the solicitor for the deceased’s daughter, Clara Caltabiano (the applicant), served a notice of claim in respect of the death benefit and funeral expenses on AAI Ltd t/as GIO (the insurer).

On 1 April 2020, the insurer in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing that the deceased’s death had resulted from his injury sustained on 24 July 2007.
On 9 December 2020, the applicant’s solicitor served further evidence in support of the applicant’s claim and requested that the insurer review its decision.
On 29 December 2020, the insurer conducted a review pursuant to s 287A of the 1998 Act and advised that it had decided to maintain its decision. However, on 22 October 2021, the insurer accepted liability.
By an Amended Application in Respect of Death of Worker (the Application) filed in the Personal Injury Commission (the Commission) on 7 December 2021, the applicant seeks apportionment of the lump sum death benefit of $791,850 in accordance with ss 25(1)(a) and 29 of the 1987 Act and funeral expenses of $5,782.70 pursuant…

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 532
Decision Date: 23 December 2021

CaseChat Overview and Summary

The case of Caltabiano v Pool & Spa Builders (Aust) Pty Ltd involved a dispute over the death benefit claim under the workers' compensation legislation following the death of the claimant's husband. The respondent, Pool & Spa Builders (Aust) Pty Ltd, contested the dependency claim, as well as the apportionment and payment of the death benefit. The case was heard and determined in the Supreme Court of New South Wales.

The primary legal issues revolved around the interpretation and application of the relevant workers' compensation legislation in determining the dependency of the claimant, the apportionment of the death benefit between the various dependents, and the entitlement of the claimant to the death benefit. The court had to consider precedents such as TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd, and Wratten v Kirkpatrick & Ors to make its determination.

In its judgment, the court considered the evidence and arguments presented by both parties. It concluded that the claimant was indeed dependent on the deceased for support and that the death benefit should be apportioned among the dependents. The court applied the relevant legal principles and precedents to arrive at a fair and just outcome, taking into account the specific circumstances of the case. The court ordered the respondent to pay the apportioned death benefit to the claimant.

The final orders included the determination of the dependency of the claimant, the apportionment of the death benefit, and the payment of the benefit to the claimant. The court's decision provided clarity and guidance on the issues of dependency, apportionment, and payment of death benefits in the context of workers' compensation claims.

Orders