Charles Sturt University v Connor
[2023] NSWPIC 477
•15 September 2023 18 September 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Charles Sturt University v Connor & Ors [2023] NSWPIC 477 |
| APPLICANT: | Charles Sturt University |
| FIRST RESPONDENT: | Celia Connor |
| SECOND RESPONDENT: | Amali Harper |
| THIRD RESPONDENT: | Kate Harper |
| FOURTH RESPONDENT: | Lieselotte Connor-Gantinas |
| FIFTH RESPONDENT: | Kester Connor-Gantinas |
| SIXTH RESPONDENT: | Olwyn Connor-Gantinas |
| SENIOR MEMBER: | Elizabeth Beilby |
| DATE OF DECISION: | 15 September 2023 18 September 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; lump sum death benefits; no dispute that the deceased died as a result of an injury arising out of or in the course of employment with the first respondent; first, second, third, fourth, fifth and sixth respondents were either wholly or partially dependent on the worker for support at the date of his death; parties were able to agree on proposed apportionment of the lump sum benefit; Held – proposed settlement was appropriate in the circumstances of each dependent party; parties were able to agree on interest payable and orders made accordingly; further order made in relation to sum to be paid to the NSW Trustee and Guardian on behalf of the sixth respondent for funds management fees. |
| DETERMINATIONS MADE: | The Commission determines: 1. The deceased worker, John Harper, died on 28 April 2022 as a result of an injury arising out of or in the course of his employment with the applicant. 2. The first, second, third, fourth, fifth and sixth respondents were all either wholly or partially dependent on the worker for support at the date of his death. 3. There were no other persons dependent, or who claims dependency, on the worker for support at the date of his death. 4. The applicant 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 $862,350. 5. 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) first respondent: $522,350; (b) second respondent: $50,000; (c) third respondent: $50,000; (d) fourth respondent: $60,000; (e) fifth respondent: $80,000, and (f) sixth respondent: $100,000. 6. The applicant is to pay interest on the lump sum benefit as follows: (a) first respondent: $7,682.12; (b) second respondent: $451.23; (c) third respondent: $501.36; (d) fourth respondent: $571.56; (e) fifth respondent: $788.82, and (f) sixth respondent: $1,002.74. 7. The sum payable to the NSW Trustee & Guardian on behalf of the sixth respondent for funds management fees pursuant to s 25(1A) of the Workers Compensation Act 1987 on the total payable for her of $101,002.74 and calculated in accordance with cl 177 of the Workers Compensation Regulation 2016 is $10,051.32. The applicant is directed to pay these fees. 8. That pursuant to s 85A (1) of the Workers Compensation Act 1987 the relative lump sum benefit is to be paid directly to each respondent (except the sixth respondent.) 9. I direct that the entitlement of the sixth respondent is to be paid to the NSW Trustee and Guardian (until the age of 18). |
STATEMENT OF REASONS
BACKGROUND
On 28 April 2022 Mr John Harper (the deceased) died following a prolonged battle with a psychiatric condition. There is no doubt that Mr Harper had a close and loving relationship with each of the respondents.
Charles Sturt University (the applicant) has admitted liability in respect of the death and is liable to pay compensation pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act) (the lump sum death benefit).
Mr Harper was married at the time of his death to the first applicant. He was also father and stepfather to the second to sixth respondents.
The only substantive issues for determination at the listed arbitration were the questions of dependency, apportionment of the death benefit 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, and
(c) interest.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The claim was listed in the Personal Injury Commission (Commission) for Arbitration on
15 September 2022. The parties were able to agree to a proposed resolution of the matter at that time.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Replies to the Application to Resolve a Dispute, and
(c) late documents dated 7 August 2023, 30 August 2023, 6 September 2023 and
7 September 2023.
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]
[1] TNT Group 4 Pty Ltd v Halioris (1987) 8 NSWLR 486 at [490].
The first respondent was married to the deceased at the time of his death. They were married in 2017 and had a close marital relationship (which included living together). Her evidence outlines the support the deceased gave to her which included financial dependency together with household and domestic assistance.
The second respondent is currently an adult university student, and is the biological daughter of the deceased. The evidence disclosed a close and loving relationship between the deceased and the second respondent (though at times there was some conflict). She received financial assistance by way of distribution from a Scholarship Fund set up by her Mother and Father as well as ad hoc assistance from her Father such as the purchasing of meals.
The second respondent has needed to seek psychological assistance in managing her mental health following her father’s death.
The third respondent is also an adult university student and is also the biological daughter of the deceased. There is also no doubt that she also experienced a close and loving relationship with the deceased. She is also the beneficiary of financial assistance by way of distribution from a Scholarship Fund set up by her Mother and Father as well as ad hoc financial assistance from her Father.
The fourth respondent is an adult university student. She also experienced a close and loving relationship with the deceased who is described as being a nurturing an engaged stepfather. She received a weekly stipend from her mother and the deceased of $70 per week to assist her with her weekly expenses. In addition she was also provided with ad hoc assistance such as payment for car registration and telephone expenses.
The fifth respondent is the adult stepson of the deceased. The fifth respondent lived with the deceased and his Mother as at the time of death and they enjoyed a close and supportive relationship.
The sixth respondent is the stepdaughter of the deceased and is currently 16 years of age. She was residing with the deceased and her Mother as at the time of death and they too enjoyed a close and supportive relationship.
The sixth respondent has, understandably, suffered psychological anguish as a result of the death and has had to seek treatment and support for managing her symptoms.
I find that all respondents were either partially or totally 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 and their respective age,
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 deceased worker, the Late John Harper, died on 28 April 2022 as a result of an injury arising out of or in the course of his employment with the applicant.
The first, second, third, fourth, fifth and sixth respondents were all either wholly or partially dependent on the worker for support at the date of his death.
There were no other persons dependent, or who claims dependency, on the worker for support at the date of his death.
The applicant is liable for payment of the lump sum death benefit pursuant to s 25 (1) (a) of the 1987 Act in the amount of $862,350.
The lump sum death benefit payable pursuant to s 25 (1) (a) of the 1987 Act is to be apportioned as follows:
(a) first respondent: $522,350;
(b) second respondent: $50,000;
(c) third respondent: $50,000;
(d) fourth respondent: $60,000;
(e) fifth respondent: $80,000, and
(f) sixth respondent: $100,000.
The applicant is to pay interest on the lump sum benefit as follows:
(a) first respondent: $7,682.12;
(b) second respondent: $451.23;
(c) third respondent: $501.36;
(d) fourth respondent: $571.56;
(e) fifth respondent: $788.82, and
(f) sixth respondent: $1,002.74.
The sum payable to the NSW Trustee & Guardian on behalf of the sixth respondent for funds management fees pursuant to s 25(1A) of the 1987 Act on the total payable for her of $101,002.74 and calculated in accordance with cl 177 of the Workers Compensation Regulation 2016 at $10,051.32. The applicant is directed to pay these fees.
That pursuant to s 85A (1) of the 1987 Act the lump sum benefit, together with interest, is to be paid directly to each respondent (except the sixth respondent).
I direct that the entitlement of the sixth respondent is to be paid to the NSW Trustee and Guardian until the sixth respondent reaches the age of 18.
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