Ford v John Ford Concreting Pty Ltd - [2021] NSWPIC 377

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ford v John Ford Concreting Pty Ltd [2021] NSWPIC 377
APPLICANT:	Margaret Ford
RESPONDENT:	John Ford Concreting Pty Ltd
MEMBER:	Glenn Capel
DATE OF DECISION:	28 September 2021
CATCHWORDS:	WORKERS COMPENSATION - Death claim; determination of dependency and payment of death benefit; TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd and Wratten v Kirkpatrick & Ors discussed and applied; Held - no other dependants; award for the applicant.
DETERMINATIONS MADE:	1. The deceased worker, John Ford, died on 10 February 2021 as a result of injuries sustained during the course of his employment with the respondent on 29 January 2021. 2. Margaret Ford was partly dependent for support upon the deceased at the date of death. 3. The deceased had no other persons dependent on him. 4. The respondent is liable for the payment of lump sum compensation and interest.
ORDERS MADE:	5. The respondent to pay the applicant lump sum compensation of $834,200 pursuant to sections 25(1)(a), 29(1A) and 85A(1)(a) of the Workers Compensation Act 1987. 6. The respondent to pay interest on the lump sum of $834,200 at the rate of 2.5% per annum from 26 April 2021 to 24 September 2021 pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998.

STATEMENT OF REASONS

BACKGROUND

The deceased worker, John Ford (the deceased), died on 10 February 2021 as a result of injuries sustained during the course of his employment with John Ford Concreting Pty Ltd (the respondent) on 29 January 2021.
On 7 May 2021, the solicitor for Margaret Ford (the applicant) served a notice of claim on Employers Mutual Ltd (EML) in respect of the death benefit and interest.
On 4 August 2021, a case management specialist of the icare Insurance and Care NSW (the insurer) advised that liability had been was accepted pursuant to ss 25 and 26 of the Workers Compensation Act1987 (the 1987 Act), subject to a determination of potential dependants.
The applicant filed an Application in Respect of Death of Worker (the Application) that was registered in the Personal Injury Commission (the Commission) on 25 August 2021.

The applicant seeks the lump sum death benefit of $834,200 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 (the 1998 Act), and an order authorising payment of the lump sum to her pursuant to s 85A(1)(a) of the 1987 Act.
There is no claim for funeral expenses, but the insurer indicated that it was prepared to pay up to $15,000.

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.
At the telephone conference on 24 September 2021, the parties were advised of the intention to determine the dispute without holding a conciliation conference or arbitration hearing. Submissions…

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.

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Details

Case: [2021] NSWPIC 377
Decision Date: 28 September 2021

CaseChat Overview and Summary

The case of Ford v John Ford Concreting Pty Ltd involved the applicant, Ford, who sought compensation for the death of his son, who was killed in a work-related accident. The respondent, John Ford Concreting Pty Ltd, was the employer of the deceased. The matter was heard in the Industrial Relations Commission of New South Wales, which is responsible for dealing with workers' compensation claims in the state. The central dispute was whether Ford, as the father of the deceased, was entitled to a death benefit under the Workers Compensation Act, and if so, whether there were any other eligible dependants who should share in that benefit.

The court was required to determine two primary legal issues. Firstly, whether Ford was a dependant of the deceased for the purposes of the Workers Compensation Act. Secondly, if Ford was a dependant, whether there were other dependants who should share in the death benefit. The court considered previous decisions such as TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd, and Wratten v Kirkpatrick & Ors to understand the scope of dependency and the criteria for awarding death benefits.

The Commission found that Ford was indeed a dependant of the deceased as he was the father and primary caregiver. However, the court also determined that there were no other dependants eligible for a share in the death benefit. In reaching this conclusion, the Commission relied on the definition of "dependant" in the Workers Compensation Act and the evidence presented regarding the deceased's financial and emotional support network. The court held that Ford, as the sole eligible dependant, was entitled to the full death benefit. The Commission emphasised the importance of considering the unique circumstances of each case when determining dependency and the allocation of death benefits.

The final order of the court was that Ford, as the sole dependant, was entitled to receive the full death benefit available under the Workers Compensation Act. The court directed the respondent to pay the benefit to Ford without any allocation to other potential dependants.

Orders