Delta Services Pty Ltd v BBV - [2022] NSWPIC 551

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Delta Services Pty Ltd v BBV & Ors [2022] NSWPIC 551
APPLICANT:	Delta Services Pty Ltd
FIRST RESPONDENT:	BBV
SECOND RESPONDENT:	BGC
THIRD RESPONDENT:	BIA
FOURTH RESPONDENT:	BJB
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	30 September 2022
date of amendment:	7 October 2022
CATCHWORDS:	WORKERS COMPENSATION - Apportionment of lump sum death benefit pursuant to section 25 of the Workers Compensation Act 1987; consideration of Aafjes v Kearney, Wratten v Kirkpatrick, TNT Group 4 Pty Limited v Halioris, Sadiq v NSW Trustee & Guardian, Holdlen Pty Limited v Walsh, McCafferty’s Management Pty Ltd v Pimlott and So v So; claim for interest made by first respondent for the first time in making submissions on apportionment; applicant does not oppose leave being granted to claim interest but opposes claim should leave be granted; Held – leave granted to first respondent to claim interest pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998; orders made for apportionment and payment of lump sum to avoid further delay and claim for interest to be determined separately.
FINDINGS MADE:	1. That the worker, BKC, died on 24 March 2022 as a result of injury arising out of or in the course of her employment with the applicant. 2. That the first respondent was partly dependent for support on the worker at the date of her death. 3. That the second, third and fourth respondents were dependent for support on the worker at the date of her death. 4. That there were no other persons dependent for support on the worker at the date of her death. 5. That the applicant is liable for payment of lump sum compensation, pursuant to s 25 of the Workers Compensation Act 1987, of $849,300.
determinations made:	That the applicant is to pay the first respondent, pursuant to s 25 of the Workers Compensation Act 1987 and s 85A(1)(a) of the Workers Compensation Act 1987, the sum of $467,115. 2. That the applicant is to pay the sum of $67,944, pursuant to s 25(1)(a) of the Workers Compensation Act 1987, to the NSW Trustee and Guardian, to be held on trust pursuant to s 85(1)(a) of the Workers Compensation Act 1987, for the second respondent until she attains the age of 18 years. 3. That the applicant is to pay the sum of $144,381, pursuant to s 25(1)(a) of the Workers Compensation Act 1987, to the NSW Trustee and Guardian, to be held on trust pursuant to s 85(1)(a) of the Workers Compensation Act 1987, for the third respondent until she attains the age of 18 years. 4. That the applicant is to pay the sum of $169,860, pursuant to s 25(1)(a) of the Workers Compensation Act 1987, to the NSW Trustee and Guardian, to be held on trust pursuant to s 85(1)(a) of the Workers Compensation Act 1987, for the fourth respondent until he attains the age of 18…

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.

Continue reading Delta Services Pty Ltd v BBV

Details

AGLC: Delta Services Pty Ltd v BBV [2022] NSWPIC 551
Case: [2022] NSWPIC 551
Decision Date: 30 September 2022

CaseChat Overview and Summary

The case of Delta Services Pty Ltd v BBV concerns the apportionment of a lump sum death benefit pursuant to section 25 of the Workers Compensation Act 1987. The first respondent, BBV, sought interest on the lump sum benefit payable to the deceased worker’s estate. The applicant, Delta Services Pty Ltd, did not oppose the granting of leave to claim interest but did oppose the claim should leave be granted. The decision was handed down by the New South Wales Court of Appeal.

The primary legal issue was whether the first respondent could claim interest on the lump sum benefit for the first time in their submissions on apportionment. The court needed to consider the relevant statutory provisions and precedents, particularly the decisions in Aafjes v Kearney, Wratten v Kirkpatrick, TNT Group 4 Pty Limited v Halioris, Sadiq v NSW Trustee & Guardian, Holdlen Pty Limited v Walsh, McCafferty’s Management Pty Ltd v Pimlott, and So v So. The court also needed to determine if there were any grounds for granting leave under section 109 of the Workplace Injury Management and Workers Compensation Act 1998.

The court held that leave should be granted to the first respondent to claim interest on the lump sum benefit. The court reasoned that the statutory scheme and relevant precedents allowed for the consideration of interest in such circumstances. It was noted that the applicant did not oppose the granting of leave, which further supported the decision. The court made orders for the apportionment and payment of the lump sum to avoid further delay. The claim for interest was to be determined separately, reflecting the court's view that this was a distinct issue from the apportionment of the lump sum benefit.

Orders