Ernst v Aurizon Holdings Ltd
[2025] NSWPIC 172
•28 April 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Ernst v Aurizon Holdings Ltd [2025] NSWPIC 172 |
| APPLICANT: | Renee Emma Ernst |
| RESPONDENT: | Aurizon Holdings Limited |
| MEMBER: | Gaius Whiffin |
| DATE OF DECISION: | 28 April 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for benefits in respect of the death of a worker; whether the applicant was dependent for support upon the worker at the date of his death; whether there were any other persons dependent for support upon him as at that date; Held – applicant was partly dependent for support upon the worker at the date of his death; no other persons dependent for support upon the worker at the date of his death; respondent liable to pay the amount of $938,600 in accordance with section 25(1)(a) with agreed interest; amount to be paid to the applicant in accordance with sections 29(1A) and 85A(1). |
| DETERMINATIONS MADE: | The Commission determines: 1. That Troy Ernst (the worker) died on 2 December 2024 as a result of an injury arising out of or in the course of his employment with the respondent, pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act). 2. That the worker’s employment was a substantial contributing factor to the injury, pursuant to s 9A of the 1987 Act. 3. That the applicant was partly dependent for support upon the worker at the date of his death. 4. That there were no other persons dependent for support upon the worker at the date of his death. 5. That the respondent is liable to pay the amount of $938,600 pursuant to s 25(1)(a) of the 1987 Act. 6. That the respondent, in accordance with the agreement between the parties, is liable to pay interest of $6,000 on the amount awarded pursuant to s 25(1)(a) of the 1987 Act, in accordance with s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). 7. That the amount of $938,600 plus interest is to be paid to the applicant, in accordance with s 29(1A) and s 85A(1) of the 1987 Act. The Commission orders: 1. The respondent is to pay the applicant the amount of $938,600 in accordance with s 29(1A) and s 85A(1) of the 1987 Act. 2. The respondent is to pay the applicant the amount of $6,000 in accordance with s 109 of the 1998 Act. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
Troy Ernst (the worker) died on 2 December 2024 as a result of a motor vehicle accident which occurred during the course of his employment as a coal train driver with Aurizon Holdings Ltd (the respondent).
I do not need to go into the details of the accident since the respondent has rightly conceded (by way of correspondence dated 23 January 2025) liability for the worker’s death, as his death arose out of or in the course of his employment with it in accordance with s 4 of the Workers Compensation Act 1987 (the 1987 Act), and as his employment with it was a substantial contracting factor to his death in accordance with s 9A of the 1987 Act.
The respondent has therefore conceded that it is liable to pay an amount of $938,600 pursuant to s 25(1)(a) of the 1987 Act.
Renee Emma Ernst (the applicant) is the worker’s wife. She alleges that as at
2 December 2024, she was partly dependent for support upon the worker. She also alleges that as at that date, she was the only person dependent for support upon the worker.By way of an Application in Respect of Death of Worker (ARDW) lodged with the Personal Injury Commission (Commission), the applicant seeks an order that the amount of $938,600 plus interest be paid to her (as the worker’s sole dependant) in accordance with ss 29(1A) and 85A(1) of the 1987 Act.
ISSUES FOR DETERMINATION
The parties agree that the only issues requiring determination by the Commission are:
(a) was the applicant dependent for support upon the worker at the date of his death, and
(b) if so, were any other persons dependent for support upon the worker at the date of his death.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The ARDW proceeded to preliminary conferences before the Commission on 26 March 2025 and 24 April 2025. On those occasions, the applicant was represented by Mr Drenkhahn, solicitor, and the respondent was represented by Ms Dudgeon, solicitor. Also, on both occasions, the applicant was present with her support person, Ms Lane, and Ms Townsend from the respondent’s insurer was present.
At the preliminary conferences, the respondent confirmed that once it received the Commission’s findings in relation to the two issues requiring determination (see paragraph 6 above), it did not dispute its liability to pay $933,600 pursuant to s 25(1)(a) of the 1987 Act. It also confirmed that should the Commission find the applicant to be the sole person dependent for support upon the worker at the date of his death, it had agreed with the applicant that in addition to the lump sum payable to her pursuant to s 25(1)(a) of the 1987 Act, it would also pay an amount of $6,000 in interest upon that lump sum pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The respondent advised that it did not wish to make any submissions regarding the two issues requiring determination.
I am grateful to the parties for their assistance at the preliminary conferences, and in their provision of evidence. I am also grateful to them for the courteous and respectful manner in which they have conducted themselves.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the ARDW and attached documents;
(b) the respondent’s Reply (Reply) and attached documents, and
(c) the applicant’s Application to Lodge Additional Documents (ALAD) dated
17 April 2025 and attached documents.
Oral evidence
There was no oral evidence called.
FINDINGS AND REASONS
Was the applicant dependent for support upon the worker at the date of his death
Section 25 of the 1987 Act provides:
“(1) If death results from an injury, the amount of compensation payable by the employer under this Act shall be-
(a) the amount of $750,000 (the ‘lump sum death benefit’), which is to be apportioned among any dependants who are wholly or partly dependent for support on the worker or (if there are no such dependants) paid to the worker's legal personal representative…”
The amount of $750,00 has been indexed, and the parties agree that the correct amount to be awarded as at 2 December 2024 was $938,600.
Section 4 of the 1998 Act then defines a dependant as follows:
“‘dependants’ of a worker means such of the members of the worker's family as were wholly or in part dependent for support on the worker at the time of the worker's death, or would but for the incapacity due to the injury have been so dependent…”
According to the applicant’s statutory declaration dated 6 February 2025 (found at page 17 of the ARDW):
(a) she and the worker first met on 9 March 2019, and married on 9 March 2024;
(b) they were “inseparable” from the day that they first met;
(c) they travelled together extensively;
(d) the worker provided her with substantial non-financial assistance – including cooking, home maintenance, and garden maintenance;
(e) they bought a home (where she continues to reside) together in May 2021 - the current mortgage on that home is about $542,000;
(f) the worker earned over $130,000 annually, and she currently earns $104,000 annually;
(g) prior to the worker’s death, they had a joint bank account which they used to pay bills and mortgage repayments - they would “put a set amount of money from our wages into our joint bank account” in this regard, and
(h) bills which were paid from this joint bank account included road assistance membership fees, council rates, water rates, electricity and gas fees, telephone expenses, insurance expenses, home maintenance and “home project” expenses, holiday expenses, car expenses, shopping expenses, and “date nights”.
The applicant advises:
“Since the accident I have been attempting to pay various expenses to keep my household running, but it is difficult with only one income.”
There is no evidence whatsoever to contradict the evidence in the applicant’s statutory declaration, and I have no issue with accepting in full the evidence in the statutory declaration.
In fact, there are other statutory declarations in evidence which accept that the applicant was financially dependent upon the worker:
(a) from Elaine Ernst (the worker’s mother) dated 10 February 2025 - found at page 31 of the ARDW;
(b) from Brad Ernst (the worker’s brother) dated 14 April 2025 - found at page 3 of the ALAD;
(c) from Cody Ernst (the worker’s son and the applicant’s step-son) dated
4 February 2025 - found at page 25 of the ARDW;(d) from Bella Ernst (the worker’s daughter and the applicant’s step-daughter) dated 4 February 2025 – found at page 23 of the ARDW;
(e) from Madeline Emma Gould (the worker’s step-daughter and the applicant’s daughter) dated 4 February 2025 - found at page 27 of the ARDW, and
(f) from Olivia Lane Gould (the worker’s step-daughter and the applicant’s daughter) dated 7 February 2025 - found at page 29 of the ARDW.
It is clear that the applicant and the worker pooled their wages in order to meet the vast majority of their mutual and combined general living expenses and commitments. They were dependent upon each other in this regard, and there is no suggestion in the evidence that such mutual dependence would not have continued save for the worker’s death.
On the evidence, I have no hesitation in finding that the applicant was partly dependent for support upon the worker at the date of his death.
Were any other persons dependent for support upon the worker at the date of his death
Having regard to this finding, the applicant is entitled to be awarded the entirety of the relevant lump sum conceded to be payable by the respondent in accordance with s 25(1)(a) of the 1987 Act, should she be the only person dependent for support upon the worker at the date of his death. In this regard, s 29(1A) of the 1987 Act reads as follows:
“(1A) The lump sum death benefit payable under this Division is not to be apportioned if a deceased worker leaves only one dependant (whether wholly or partly dependent on the worker for support) and the whole of the lump sum death benefit is to be paid to that one dependant.”
The applicant’s statutory declaration dated 6 February 2025 declares that to the best of her knowledge, there were no persons dependent for support upon the worker other than her, at the date of his death. In this regard, it seems to me that she would have been aware if there were any such persons, considering the financial arrangements that were in place between her and the worker (see paragraph 15 above) regarding how they used their wages to meet their mutual and combined general living expenses and commitments.
I also note that the evidence establishes:
(a) that the worker’s grandparents were all deceased - see Brad Ernst’s statutory declaration dated 14 April 2025;
(b) that the worker’s parents (Elaine Ernst and Lawrence Ernst) were not dependent for support upon the worker at the date of his death – they declare as such in statutory declarations – see Elaine Ernst’s statutory declaration dated 10 February 2025 and Lawrence Ernst’s statutory declaration dated 16 April 2025 (found at page 5 of the ALAD);
(c) that prior to his marriage to the applicant, the worker was never validly married - see the marriage certificate between the applicant and the worker (found at page 14 of the ARDW);
(d) that the worker only had one sibling (his brother, Brad Ernst) who was not dependent for support upon him at the date of his death - Brad Ernst declares as such in his statutory declaration dated 14 April 2025;
(e) that the worker only had two children (Cody Ernst and Bella Ernst) - see Elaine Ernst’s statutory declaration dated 11 April 2025 (found at page 1 of the ALAD) and Brad Ernst’s statutory declaration dated 14 April 2025;
(f) that neither Cody Ernst nor Bella Ernst were dependent for support upon the worker at the date of his death – Cody Ernst declares as such in his statutory declaration dated 4 February 2025, and Bella Ernst declares as such in her statutory declaration dated 4 February 2025, and
(g) that neither Madeline Emma Gould nor Olivia Lane Gould (the worker’s step-children and the applicant’s children) were dependent for support upon the worker at the date of his death – Madeline Emma Gould declares as such in her statutory declaration dated 4 February 2025, and Olivia Lane Gould declares as such in her statutory declaration dated 7 February 2025.
It needs to be noted that prior to his marriage to the applicant, and some years beforehand, the worker was in a relationship with Vanessa Hinton (who is the mother of his children, Cody Ernst and Bella Ernst). I find however that she was not dependent for support upon him at the date of his death. In this regard, I believe I can draw a clear inference that if there had been any ongoing support provided by the worker to Vanessa Hinton, it would have been known to not only the applicant but Cody Ernst and Bella Ernst also. The support would have been referred to in the statutory declarations both dated 4 February 2025 from Cody Ernst and Bella Ernst, but instead both of those statutory declarations refer to the applicant as being financially dependent upon their father, but no one else.
I also note that the worker’s mother, Elaine Ernst, declares in her statutory declaration dated 11 April 2025:
(a) that the worker’s relationship with Vanessa Hinton finished in 2004;
(b) that after “an incident occurred between Vanessa Hinton’s new partner and Cody”, Elaine Ernst was granted custody of both Cody Ernst and Bella Ernst on 23 October 2013;
(c) that the worker was subsequently granted custody of both Cody Ernst and Bella Ernst in January 2014;
(d) that the worker provided no financial support to Vanessa Hinton after
23 October 2013;(e) that after 23 October 2013, the “Department of Communities & Justice allowed Vanessa one phone call a week [to Cody Ernst and Bella Ernst], and I [Elaine Ernst] had to be present during the call; however, Vanessa never tried to call”, and
(f) that Bella Ernst has not had a relationship with Vanessa Hinton since
23 October 2013, and that Cody Ernst has only occasionally seen Vanessa Hinton since then.Relying upon the evidence before me, I therefore have no difficulty in finding that the applicant was the only person dependent for support upon the worker at the date of his death.
SUMMARY
I find that the worker died on 2 December 2024 as a result of an injury arising out of or in the course of his employment with the respondent pursuant to s 4 of the 1987 Act, and I find that his employment with the respondent was a substantial contributing factor to his death pursuant to s 9A of the 1987 Act.
I find that the applicant was partly dependent for support upon the worker at the date of his death.
I find that there were no other persons dependent for support upon the worker at the date of his death.
I find that the respondent is liable to pay the amount of $938,600 pursuant to s 25(1)(a) of the 1987 Act. The amount is to be paid to the applicant pursuant to ss 29(1A) and 85A(1) of the 1987 Act.
I note the agreement of the parties (see paragraph 8 above) that the respondent is also to pay interest of $6,000 to the applicant in accordance with s 109 of the 1998 Act.
There will be awards in favour of the applicant in relation to the amounts referred to in paragraphs 30-31 above.
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