Evry v Linda Coulstock as the Tutor for Indiana Storm Evry
[2025] NSWPIC 510
•26 September 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Evry v Linda Coulstock as the Tutor for Indiana Storm Evry & Anor [2025] NSWPIC 510 |
| APPLICANT: | Crystal Monique Evry |
| FIRST RESPONDENT: | Linda Coulstock as tutor of Indiana Storm Evry |
| SECOND RESPONDENT: | Coastwide Civil Pty Ltd |
| PRINCIPAL MEMBER: | Glenn Capel |
| DATE OF DECISION: | 26 September 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; death claim; determination of dependency, apportionment, payment of death benefit, and interest and management fee; 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 and agreed interest apportioned and orders for payment. |
| DETERMINATIONS MADE: | The Personal Injury Commission (Commission) determines: 1. The deceased worker, Alexander Richard Evry, died on 20 April 2024 as a result of injury sustained arising out of or in the course of his employment with the first respondent. 2. Crystal Monique Evry was partly dependent for support upon the deceased at the date of death. 3. Indiana Storm Evry was wholly dependent for support upon the deceased at the date of death. 4. The second respondent is liable for the payment of lump sum compensation, weekly compensation, interest and the management fee. The Commission orders: 5. The second respondent is to pay the applicant lump sum compensation of $729,330.67 pursuant to ss 25(1) and 85A(1)(a) of the Workers Compensation Act 1987 (1987 Act) and s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). 6. The second respondent to is pay $310,560.26 to the New South Wales Trustee and Guardian pursuant to ss 25(1A) and 85(1)(c) of the 1987 Act, s 109 of the 1998 Act, and cl 177 of the Workers Compensation Regulation 2016 to hold on trust until the first respondent attains the age of 18 years. 7. Liberty to the parties to apply with respect to the calculations of interest and the management fee by close of business on 4 October 2025. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
The deceased worker, Alexander Richard Evry, died on 20 April 2024 in the course of his employment with Coastwide Civil Pty Ltd (the second respondent).
On 27 August 2024, the solicitor for Crystal Monique Evry (the applicant), served a notice of claim on Employers Mutual Ltd (the insurer) for the death benefit and weekly compensation in respect of the deceased’s daughter, Indiana Storm Evry.
On 8 October 2024, the solicitor for the second respondent sought particulars of potential dependants and documents relevant to the alleged dependency.
It would seem that the applicant’s solicitor responded to the request on 16 December 2024. This correspondence is not in evidence.
On 7 January 2025, the second respondent’s solicitor requested a copy of the Coroner’s report to confirm the cause of the deceased’s death and commented on various factual matters. The applicant’s solicitor provided further particulars on 13 January 2025.
On 4 June 2025, the insurer accepted liability pursuant to ss 25 and 26 of the Workers Compensation Act 1987 (1987 Act) on 23 April 2024, subject to a determination of potential dependants. Weekly payments are being made in respect of the deceased’s daughter, and funeral expenses have been paid.
The applicant filed an Application in Respect of Death of Worker (the Application) that was registered in the Personal Injury Commission (Commission) on 29 July 2025. An Amended Application was lodged on 26 September 2025. Linda Coulstock as tutor of Indiana Storm Evry is named as the first respondent.
The applicant seeks the lump sum death benefit of $929,200 in accordance with s 25(1)(a) of the 1987 Act, interest pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act), apportionment pursuant to s 29 of the 1987 Act, and orders authorising payment of the lump sums pursuant to s 85A of the 1987 Act.
On 5 August 2025, the applicant’s solicitor advised the second respondent’s solicitor that based on advice from two barristers, the death benefit should be apportioned as follows:
(a) Crystal Monique Evry: $696,900 (75%), and
(b) Indiana Storm Evry: $232,300 (25%).
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.
ISSUES FOR DETERMINATION
The following issues remain in dispute:
(a) whether there were any persons wholly or partially dependent on the deceased – s 25(1)(a) and s 25(5) of the 1987 Act.
(b) orders in respect of apportionment of the lump sum death benefit – s 29 of the 1987 Act, and
(c) orders in relation to payment of the compensation, interest and the management fee – ss 25 (1A), 85(1)(c) and 85A(1)(a) of the 1987 Act, s 109 of the 1998 Act and cl 177 of the Workers Compensation Regulation 2016 (the 2016 Regulation).
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents;
(b) first respondent’s Reply and attached documents;
(c) second respondent’s Reply and attached documents;
(d) Application to Lodge Additional Documents received on 5 September 2025;
(e) Application to Lodge Additional Documents received on 25 September 2025, and
(f) Application to Lodge Additional Documents, attaching an Amended Application without annesures, received on 26 September 2025.
Oral evidence
The parties did not seek leave to adduce oral evidence or cross examine any witnesses.
REVIEW OF EVIDENCE
Statements of Crystal Evry
In an unsigned statement,[1] the applicant indicated that she had been in a relationship with the deceased since 2010. She advised that they shared a house and household expenses. They had planned many social engagements and intended to continue their relationship into the future. Their daughter was dependent on them.
[1] Application, p 91
The applicant stated that the deceased’s income was paid into a joint account, and these funds were used to pay bills and expenses. The mortgage on their house was $750,000 and repayments were in excess of $4,500 per month. She was now required to do all of the household duties, pay expenses and look after her daughter whilst working fulltime. The loss of her husband had impacted on her future, her financial stability and her plans to have more children with him. It had taken a huge emotional toll on her.
The applicant provided a statement on 18 December 2024. She confirmed that she met the deceased when she was 16 years old and they married in 2015. Their daughter, Indiana, was born in 2022.
The applicant provided details of the deceased’s employment and the circumstances of his death which are not relevant to the issues in this matter. She advised that her late husband performed household work and maintained the lawns and gardens. He also did the washing, vacuuming and other tasks.
The applicant stated that she had been in fulltime employment for five years. Following her husband’s death, she was off work for a period and then returned to work. She was currently working for 22 hours per week.
The applicant indicated that a CTP claim had been lodged and the insurer, GIO, had paid the funeral expenses as well as some top up wages. She had been provided with some psychological counselling. Her daughter had attended a childcare centre since 2023, and she kept asking when her father would be coming home.
The applicant stated that she had spoken to the deceased’s siblings and had been informed that they did not wish to make a claim on the death benefit.
In her statement dated 16 July 2025, the applicant stated that she had received medical and psychological treatment as well as top up pay under the CTP claim until February 2025. She has worked on a fulltime basis since March 2025.
The applicant advised that her daughter was doing as well as expected, and at times she becomes upset and teary. She indicated that the mortgage repayments were being made from the deceased’s superannuation insurance and provided details of her monthly expenses.
Documents
The applicant relies on a number of documents. There are many documents that relate to the deceased’s employment that are of no relevance to the question of apportionment.
The police report and death certificate confirm the circumstances of the deceased’s death, and the birth and marriage certificates are consistent with applicant’s statements.
Copies of the utility and bank accounts are in the names of the applicant and the deceased.
Statutory declarations
Statutory declarations have been provided by the deceased’s parents, Richard Evry and Linda Coulstock, and his siblings Sarah Envy, Kristy Envy, Emma Envy, Joel Envy and Liam Envy. They all indicated that they do not wish to make a claim on the death benefit.
SUBMISSIONS
Given the nature of the claim and the evidence, I saw no need for submissions from the parties.
REASONS
Dependency
It was confirmed in Warilla Timber and Hardware Pty Ltd v Newton,[2] Albury Real Estate Pty Ltd v Rouseand anor[3] 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.
[2] (1995) 11 NSWCCR 546, [554] to [555].
[3] [2006] NSWWCCPD 139, [45] to [50].
In TNT Group 4 Pty Limited v Halioris,[4] 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.”[5]
[4] (1987) 3 NSWCCR 10; 8 NSWLR 486 (Halioris).
[5] Halioris, [489].
Further, in Kaur v Thales Underwater Systems Pty Ltd,[6] 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;”[7]
and
…‘past events and future probabilities’ have to be considered. (Aafjes v Kearney 180
CLR 199; 8 ALR 455; 50 ALJR 454, 456, 457 and 459 (Aafjes)).”[8]
[6] [2011] NSWCCPD 6 (Kaur).
[7] Kaur, [126].
[8] Kaur, [148].
The applicant was in a loving relationship since 2010. According to her evidence, she was emotionally and financially dependent on the deceased. I am satisfied from the applicant’s evidence that their relationship would have lasted well into the future but for the deceased’s untimely death.
According to the applicant evidence, she and the deceased shared the household expenses. The deceased’s salary was paid into a joint account, and this was used to pay the mortgage and other household expenses. However, at all times the applicant has been in employment, so in the circumstances, I am satisfied that she was partly dependent on the deceased at the time of his death.
Given the tender years of the deceased’s daughter, I accept that she was both financially and emotionally dependent on the deceased. Accordingly, I am satisfied that the first respondent was wholly dependent on the deceased at the time of his death.
Having regard to the statutory declarations of the deceased’s family members, I am satisfied that there were no other persons wholly or partly dependent on the deceased at the date of his 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,[9] 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.”[10]
[9] (1996) 15 NSWCCR 32 (Wratten).
[10] Wratten, [34].
Each case requires an examination of the individual facts as no two matters are identical. The applicant would be entitled to a greater proportion of the lump sum having regard to her past dependency, her age, current employment and needs. This of course needs to be weighed up with the dependency of the first respondent.
It is obvious that the legal representatives have put some time into assessing the respective rights of each party. 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) Crystal Monique Evry: $696,900 (75%), and
(b) Indiana Storm Evry: $232,300 (25%).
Interest
The power to award interest is discretionary[11] and can apply to some or all of the compensation payable for the entire period from the date of the claim to the date of the order or for a lesser period. A claim is made when sufficient information is served to enable a decision to be made to accept or dispute liability.[12]
[11] Haidary v Wandella Pet Foods Pty Limited, Dynamix Pty Ltd and Burrangong Pet Foods Pty Ltd [2005] NSWWCCPD 9 (Haidary).
[12] Cameron v StateCover Mutual Ltd [2015] NSWWCC 325.
The rate of interest is also a discretionary matter. However, whilst the discretion is wide, one must have regard to the facts of the case.[13]
[13] Brambles Australia Ltd t/as Gardner Perrott Industrial Services v Hamilton & Monier Ltd [2206] NSWWCCPD 169, [43] (Brambles), and Haidary, at [10], [15].
I am mindful that the purpose of ordering interest is to compensate a worker for the loss of his or her income, or in this case, the applicant and the respondents, for not being able to access the significant death benefit. On the other hand, an order for interest is not intended as a penalty against the employer or insurer.
The parties have reached agreement in respect of the interest payable from the date of receipt of the claim on 18 December 2025 to date as follows:
(a) Crystal Monique Evry – $32,430.67, and
(b) Indiana Storm Evry – $10,810.22.
Management Fee
Section 25(1A) of the 1987 Act provides that where a lump sum death benefit is paid to the NSW Trustee for the benefit of a dependant in accordance with s 85 of the 1987 Act, the employer must pay additional compensation fees for management of the funds by the NSW Trustee as prescribed by the regulations. Clause 177 of the 2016 Regulation contains the prescribed formula for the calculation.
The SIRA website contains a lump sum benefit additional fees calculator which simplifies the calculation. According to the calculator, the additional fees payable by the second respondent to the NSW Trustee and Guardian are as follows:
(a) Indiana Storm Evry – $67,450.04
I propose to make orders in accordance with the above calculations.
FINDINGS
The deceased worker, Alexander Richard Evry, died on 20 April 2024 as a result of injury sustained arising out of or in the course of his employment with the first respondent.
Crystal Monique Evry was partly dependent for support upon the deceased at the date of death.
Indiana Storm Evry was wholly dependent for support upon the deceased at the date of death.
The second respondent is liable for the payment of lump sum compensation, interest and the management fee.
ORDERS
The second respondent is to pay the applicant lump sum compensation of $729,330.67 pursuant to ss 25(1) and 85A(1)(a) of the 1987 Act and s 109 of the 1998 Act.
The second respondent to is pay $310,560.26 to the New South Wales Trustee and Guardian pursuant to ss 25(1A) and 85(1)(c) of the 1987 Act, s 109 of the 1998 Act, and cl 177 of the 2016 Regulation to hold on trust until the first respondent attains the age of 18 years.
Liberty to the parties to apply with respect to the calculations of interest and the management fee by close of business on 4 October 2025.
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