Delta Services Pty Ltd v BBV
[2022] NSWPIC 551
•30 September 2022
| 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 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 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 5. That the first respondent is granted leave to claim interest on the lump sum, pursuant to 6. That on or before 17 October 2022, the first respondent is to file and serve particulars of his claim for interest on the lump sum, and submissions in support of the claim. 7. That on or before 24 October 2022, the applicant is to file and serve submissions in respect of the claim for interest on the lump sum. 8. That on or before 31 October 2022, the first respondent is to file and serve any submissions in reply on which he seeks to rely. 9. That at the end of the time allowed for submissions, the claim for interest will be determined “on the papers”. |
STATEMENT OF REASONS
BACKGROUND
The worker, BKC (BKC), was employed by the applicant, Delta Services Pty Ltd, as a disability care worker. She died as a result of injuries received in a motor vehicle accident in the course of her employment on 24 March 2022.
The applicant has accepted liability to pay compensation pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act).
The applicant filed an Application in Respect of Death of Worker (the Application) on
12 July 2022. It sought apportionment of the death benefit of $849,300.The respondents to the Application, being dependants of the worker, are BBV (BBV), the worker’s de facto husband; and their children, BGC, who is 16 years old; BIA, who is 11 years old; and BJB, who is 9 years old.
Each of the respondents has filed a Reply, and evidence regarding dependency has been provided.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains to be determined:
(a) apportionment of the death benefit.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for preliminary conference before me on 15 August 2022. Mr Harris appeared for the applicant and Ms Thurgood appeared for the respondents. Ms Osnabrugge of EML and Ms Dean of iCare also attended.
Ms Thurgood advised that she was in the process of arranging separate representation by counsel for the children. She was also attempting to obtain a copy of BIA’s birth certificate, which BBV had been unable to locate, and evidence from members of BKC’s family as to their intentions regarding making a claim on the death benefit.
A timetable was set for the provision of further evidence, and the matter was listed for a second preliminary conference on 14 September 2022. Mr Harris appeared for the applicant and Ms Thurgood for the respondents. Ms Osnabrugge also attended.
Directions regarding the provision of further evidence and submissions on apportionment were made. The parties were advised that, at the conclusion of the time allowed for submissions, the matter would be determined “on the papers”.
Mr Harris advised that the applicant did not intend to provide any submissions on apportionment. The other parties have provided written submissions in accordance with my direction.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the Application and attachments;
(b) Reply by first respondent and attachments;
(c) Reply by second respondent;
(d) Reply by third respondent;
(e) Reply by fourth respondent;
(f) Application to Admit Late Documents dated 20 September 2022 and attachments, filed by the applicant, and
(g) Application to Admit Late Documents dated 27 September 2022 and attachments, filed by the applicant.
FINDINGS AND REASONS
Evidence of the applicant, BBV
BBV’s statement is dated 4 August 2022. It is unnecessary that I refer to it in detail.
He and the worker had been in a de facto relationship since they were, respectively, about 17 years old and 16 years old. They had been together for 17 years at the date of her death.
The couple has three children. BGChas a medical condition that requires six monthly reviews by MRI, but otherwise has no impact on her. She is attending school, working casually, and intends to go to university. He supports her and the other children attending university.
BIA is in year 6, and BJB is in year 4. Neither has any medical condition or special needs.
Throughout their relationship, he and BKC shared a rented family home. As the landlord wanted to move into the property, he and the children moved out approximately four weeks after her death. He relied on the savings they had made towards a deposit on a home to survive without her income.
BKC was employed on a casual basis, but her hours were usually full time or greater. They aimed for her to earn at least $1,000 per week. He was employed full time, earning approximately $780 gross per week. He intends to try to keep working. He was finding it difficult to juggle work, the care of the children and his own depression.
He and the worker did not have a joint bank account. Their wages were deposited into their separate accounts. BKC managed their money, and he provided her with access to all his wages. She used both wages to meet the family’s living expenses.
They shared caring for the children, including if they needed to take time off work to do so. He would take time off if he was able, as BKC was the higher earner and they relied upon her income.
Their regular expenses included rent, food, fuel, electricity, and school expenses. They had a car which the worker drove, as he did not have a car licence. It was sold after her death. He also sold a motorbike, as they needed money.
He and BKC shared the cost of expenses such as gifts and travel. They generally shared housework and domestic chores, although she normally did more cooking, washing up, laundry and cleaning.
He has now taken on caring for the children while trying to maintain full time employment. He has taken unpaid leave, meaning there are periods where his wage has been significantly reduced.
He has moved in with his mother, whose home has only three bedrooms. He intends to find a family home, but the high cost of rent has made it difficult to find an affordable home. He intends to purchase a home for his family, so it has a secure place to live.
Evidence of other potential claimants
Statements have been filed by the worker’s mother, father, brother, and sister. None claims to have been dependant on her, and none is making any claim on the death benefit.
SUBMISSIONS
Counsel have provided written submissions on the issue of apportionment. I will therefore refer to them only briefly.
Applicant
The applicant submitted that the working and earning arrangement between him and the worker were likely to have endured until they reached age pension age. He would have remained partly dependent on her for a further 33 years.
The other inference that can be readily drawn is that the children would have remained wholly or partly dependent on each parent to age 21. Most school leavers participate in tertiary education or vocational training before being able to assert economic independence.
The applicant calculated the total years of dependency for each claimant as follows:
(a) BGC– 5 years;
(b) BIA – 10 years;
(c) BJB – 12 years, and
(d) Applicant – 33 years.
The total period of dependency for the children is 27 years. The total for all dependants is 60 years.
The applicant has calculated his proportion of the dependency years as 33/60 = 55%. His share of the capital sum would therefore be calculated as $467,115.
Capitalisation of the worker’s lifetime earnings to age 67, using the 5% discount, gives a total of $855,700, an amount less than the lump sum. It would require adjustment for taxation, vicissitudes, and her own needs. The magnitude of the combined economic injury to the dependents must be but a proportion of the lump sum.
The fact that the children remain, and are likely to remain, in BBV’s custody may warrant a slightly higher apportionment in his favour, on the basis that his security of housing and financial stability is equally to their benefit, at least for the time being. The Commission may therefore see fit to apportion 60% of the lump sum, that is, $509,580, to him.
The first respondent claims interest on the lump sum.
Second, third and fourth respondents
The respondents all claim that they were wholly or partly dependent for support on the worker.
The second, third and fourth respondents referred to the decisions in Aafjes v Kearney [1976] HCA 5; 180 CLR 199; Wratten v Kirkpatrick [1996] NSWCC 2; TNT Group 4 Pty Limited v Halioris (1987) 3 NSWCCR 10; 8 NSWLR 486; and Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 on the issue of dependency.
At the time of the worker’s death, the first respondent was partly dependent on her for support. The second, third and fourth respondents were wholly dependent. They had an expectation of support for five, 10 and 12 years respectively.
The second respondent suffers from a medical condition that does not affect her. The third and fourth respondents are younger, and the worker would have provided them with greater emotional support.
The considerations when assessing apportionment include history of cohabitation; dependency on the worker; work history of the dependent partner; the three children and their ages; the benefits gained from the lump sum to be applied towards things such as housing; and the regular weekly payments to assist with schooling.
The second, third and fourth respondent submit that the first respondent should receive 55% of the lump sum, with the balance apportioned as follows:
· BGC– 8%
· BIA – 17%
· BJB – 20%
The above is calculated by reference to the first respondent’s expectation of a further 33 years of support, and the second, third and fourth respondent’s expectation of a total of 27 years of support.
SUMMARY
The applicant has accepted liability for payment of the lump sum death benefit, pursuant to
s 25 of the 1987 Act. It is conceded that the first, second, third and fourth respondents were either wholly or partly dependent on the worker for support. It is therefore necessary that I consider only the apportionment of the lump sum between the dependants.In Holdlen Pty Limited v Walsh [2002] NSWCA 87, it was said that “[t]otal dependence is not incompatible with the fact of receipt of support from someone else”. That a child may be totally dependent upon two parents was recognised in McCafferty’s Management Pty Ltd v Pimlott (1995) NSWCCR 360 and in the Court of Appeal decision of So v So [2004] NSWCA 67.
It is clear from BBV’s evidence that he was partly dependent on the worker for support. Both he and the worke supported the children, and the children were wholly dependent on BKC.
I have had the benefit of submissions from experienced counsel in respect of apportionment of the lump sum, and I thank them for their assistance.
I accept that any amount apportioned to BBV will also be of benefit to the children, given that they remain in his care, and his expressed intention to provide his family with a secure place to live. I also accept that the period of his dependency was likely to have exceeded that of the children.
BIA and BJB are, of course, considerably younger than BGC, and it is appropriate that a higher proportion of the lump sum, commensurate with their ages, be apportioned to them.
I am satisfied that it is appropriate to apportion the lump sum in the proportions submitted by the second, third and fourth respondents, that is:
· first respondent: 55% = $467,115;
· second respondent: 8% = $67,944;
· third respondent: 17% = $144,381, and
· fourth respondent: 20% = $169,860.
The amount apportioned to the first respondent will be paid to him, pursuant to s 85A(1)(a) of the 1987 Act. The amounts apportioned to the second, third and fourth respondents will be paid to the NSW Trustee and Guardian, pursuant to s 85 (1)(a) of the 1987 Act.
The first respondent has submitted that interest should be paid on the lump sum. No claim for interest had previously been made.
The applicant has advised the Commission that it does not oppose leave being granted to any respondent to claim interest pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998, but should leave be granted, it will oppose the claim. It wishes to make submissions on any claim for interest.
As the applicant does not oppose leave being granted to the respondent/s to make a claim for interest, I grant leave for such claim to be made.
So as not to delay payment of the lump sum to and on behalf of the respondents, I will make orders as to apportionment and directions in respect of the claim for interest, with which I will deal separately.
The findings and determinations and orders are as set out in the Certificate of Determination.
3
0