Caltabiano v Pool & Spa Builders (Aust) Pty Ltd
[2021] NSWPIC 532
•23 December 2021
| 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 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 to s 26 of the 1987 Act, and orders authorising payment of the lump sum pursuant to ss 85 and 85A(1)(a) of the 1987 Act. Natalie Schulte as tutor of Malakai Caltabiano, the deceased’s grandson, is the second respondent.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. The parties were advised of the intention to determine the dispute without holding a conciliation conference or arbitration hearing.
At the telephone conference on 2 December 2021, I was informed that steps had been taken by the first respondent to pay for the funeral expenses of $5,782.70. Therefore, this was not an issue that required a determination. Further, I was advised that there would be a claim for interest.
I directed that the applicant file an Amended Application by 10 December 2021, for the second respondent to file a Reply by 10 December 2021, and for the parties to file written submissions regarding apportionment and the payment of interest by 17 and 23 December 2021.
On 9 December 2021, I directed that the applicant file and serve further evidence in respect of the applicant’s dependency on the deceased at the time of his death by 20 December 2021. The second respondent was also directed to file evidence in respect of the second respondent’s dependency on the deceased at the time of his death by 20 December 2021.
The parties complied with this direction and made further submissions on 15 December 2021. I was informed that they would not be filing any submissions in reply. I was also informed via email on 21 December 2021 that the parties had resolved the question of interest and that the claim was withdrawn.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether there were any persons wholly or partially dependent on the deceased – s 25 of the 1987 Act;
(b) apportionment of the lump sum of $791,850 payable – s 29 of the 1987 Act, and
(c) orders in relation to payment of the compensation – ss 85(1)(c) and 85A(1)(a) of the 1987 Act.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) Amended Application and attached documents received on 7 December 2021;
(b) First Respondent’s Reply with attachments;
(c) Second Respondent’s Reply with attachments, and
(d) Application to Admit Late Documents received on 15 December 2021.
Oral evidence
The parties did not seek leave to adduce oral evidence or cross examine any witnesses.
REVIEW OF EVIDENCE
Given the discreet nature of the matters in issue, I will focus my review on the documents that concern dependency and apportionment.
Statements of Clara Caltabiano
Clara Caltabiano provided a statement on 16 June 2020. This statement largely dealt with her father’s injury and significant disabilities and complications resulting from his quadriplegia. She indicated that when her mother, Natalie Schulte, separated from her father in about 2006, she lived with her and spent weekends with her father. He was very fit before his injury, and they went jogging, skipping, boxing and bike riding together. He took her shopping for clothes and would buy her food.
Ms Caltabiano stated that after his injury, he moved to a home in Cessnock where carers looked after his needs. She stayed with him every weekend but reduced this to one night per week when her son started playing weekend sport. When she was with him, she looked after his personal care. Her father’s brother, John, would visit and spend time with him every morning.
In her statement dated 3 June 2021, the applicant stated that her father had seven siblings. She had been in contact with John Caltabiano but had only seen the other siblings at her father’s funeral. She indicated that she intended to make a claim on behalf of her son, Malakai.
Finally, in her statement dated 13 December 2021, the applicant stated that after her parents separated in about 2006, her father paid child maintenance of about $30 per week to her mother for her care. After his workers compensation was accepted, approximately $13,000 in arrears of maintenance was paid to her mother for and on her behalf.
The applicant stated that her father was generous, and he would provide her with money. She was his only daughter and he spoiled her with gifts. He also purchased a car for her when she obtained her driver’s licence. She moved out of the family home when she was about 15 years of age.
The applicant stated that her father would contribute about $100 per week to her rent, and he paid weekly food bills, her car insurance and registration every year. When she visited her father in Cessnock each weekend, he would pay for her petrol and meals during her stay. He continued to financially assist her until the date of his death. They also depended on each other for emotional support, and she expected that this support would have continued.
The applicant stated that she was 14 years old when her son was born. Her father provided financial support for Malakai's wellbeing and at times he would deposit money into her account. Her father deposited $1,000 into her account when he was born, and he would put smaller amounts of around $100 at other times.
The applicant stated that her father paid for Malakai’s karate class fees of $380 every three months until Malakai was about eight years of age. Her father also arranged for his carers to buy Malakai toys. He loved his grandson and did his best to play with him.
Documents
Natalie Schulte provided a statutory declaration on 3 June 2021. She indicated that she was aware that she could make a claim on the death benefit, but she would not be doing so.
The death certificate of the deceased identified his former wife and his only daughter, Clara.
There is correspondence and two statutory declarations from the applicant’s solicitor, Anthony Frisina, detailing his efforts to contact the deceased’s siblings. Some could not be located. Paul Caltabiano and Andrew Caltabiano responded that they did not wish to make a claim.
Mr Frisina spoke to John Caltabiano and informed him that he should obtain legal advice. Nothing further was heard from him. Mr Frisina also retained investigators, but their enquiries were unsuccessful. An investigator called John Caltabiano, and when he told him about the reason for the call, Mr Caltabiano hung up.
SUBMISSIONS
The applicant and the second respondent filed joint submissions as to dependency and apportionment.
It was submitted that the applicant’s parents separated in 2006 and the deceased sustained his injury when the applicant was only 13 years old. The applicant was the only daughter of the deceased and he paid maintenance to her mother for her upkeep. The deceased was generous with his money and would provide financial assistance on a regular basis. He purchased her a car and contributed to her rent. He also provided emotional support. The applicant was totally dependent on her parents and but for the injuries sustained, there was a reasonable expectation that her dependency would have continued after the applicant attained her majority and well into the future.
It was submitted that the deceased provided Malakai with financial support from the time that he was born. The deceased would pay for karate tuition in the sum of $380 every three months until Malakai was eight years old. He purchased toys and provided love and devotion to his grandson. There was a reasonable expectation that the relationship with the deceased would have continued with provision of both financial and non-financial support.
The parties submit that the lump sum compensation should be apportioned as follows:
(a) Clara Caltabiano $712,665 (90%), and
(b) Malakai Caltabiano $79,185 (10%).
REASONS
Dependency
It was confirmed in Warilla Timber and Hardware Pty Ltd v Newton[1], Albury Real Estate Pty Ltd v Rouseand anor[2] and in Richardson that the term “support” in s 25 of the 1987 Act is not limited to financial support, and encompasses other multifactorial aspects including assistance with day-to-day activities and emotional support.
[1] (1995) 11 NSWCCR 546, [554] to [555].
[2] [2006] NSWWCCPD 139, [45] to [50].
In TNT Group 4 Pty Limited v Halioris[3], McHugh JA stated:
“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.”[4]
[3] (1987) 3 NSWCCR 10; 8 NSWLR 486 (Halioris).
[4] Halioris, [489].
Further, in Kaur v Thales Underwater Systems Pty Ltd[5], President Keating stated:
“The question whether there is in fact dependence or reliance at the date of death is not to be answered by looking only to the circumstances as they existed at that date;”[6]
and
“‘past events and future probabilities’ have to be considered. (Aafjes v Kearney 180
CLR 199; ster; 8 ALR 455; 50 ALJR 454, 456, 457 and 459 (Aafjes)).”[7]
[5] [2011] NSWWCCPD 6, [139] (Kaur).
[6] Kaur, [126].
[7] Kaur, [148].
Unfortunately, the evidence of the nature of the applicant’s dependency is scant. It is unclear whether the applicant was in employment at the time of her father’s death or whether she was in receipt of any maintenance payments from the father of her child. There is no will or financial material before the Commission to verify the applicant’s evidence. Therefore it is difficult to determine whether she was wholly or partly dependent on the deceased at the time of his death. Doing as best I can on the limited evidence before me, I accept that the applicant was partly dependent on the deceased at the time of his death.
The applicant has described how her son was dependent on the deceased. Given that she is the primary carer, I consider that Malakai would have been wholly dependent on the applicant and only partly dependent on the deceased at the time of his death.
Further, I am satisfied there were no other persons wholly or partly dependent on the deceased at the date of 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[8], Egan A-CCJ 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.”[9]
[8] (1996) 15 NSWCCR 32 (Wratten).
[9] Wratten, [34].
Each case requires an examination of the individual facts as no two matters are identical. The parties have come to a preliminary agreement in relation to apportionment of the lump sum death benefit and it is obvious that they have put some time into assessing the respective rights of each party. They have considered the applicant’s age and needs which would outweigh those of her son. I see no reason why I should apportion the benefit in a different fashion.
Accordingly, I apportion the lump sum payment of $791,850 pursuant to s 29 of the 1987 Act as follows:
(a) Clara Caltabiano $712,665 (90%), and
(b) Malakai Caltabiano $79,185 (10%).
As Malakai is only 12 years old, his entitlement will need to be paid to the New South Wales Trustee and Guardian and will held on trust for him until he turns 18 years of age.
FINDINGS
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.Clara Caltabiano and Malakai Caltabiano were partly dependent for support upon the deceased at the date of death.
The deceased had no other persons dependent on him.
The first respondent is liable for the payment of lump sum compensation.
ORDERS
The lump sum compensation of $791,850 payable pursuant to s 25(1)(a) of the 1987 Act is to be apportioned in accordance with s 29 of the 1987 Act as follows:
(a) Clara Caltabiano - 90%, and
(b) Malakai Caltabiano -10%.
The first respondent to pay the applicant $712,665 pursuant to s 85A(1)(a) of the 1987 Act.
The first respondent to pay $79,185 to the New South Wales Trustee and Guardian to hold on trust pursuant to s 85(1)(c) of the 1987 Act until Malakai Caltabiano attains the age of 18 years.
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