Ford v John Ford Concreting Pty Ltd
[2021] NSWPIC 377
•28 September 2021
| 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 were made regarding the question of interest.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether there were any persons wholly or partially dependent on the deceased -
s 25 of the 1987 Act;(b) apportionment of the lump sum benefit – s 29 of the 1987 Act;
(c) whether the respondent is liable for interest – s 109 of the 1998 Act, and
(d) orders in relation to payment of compensation and interest – s 85A(1)(a) of the 1987 Act and s 109 of the 1998 Act.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) Application and attached documents, and
(b) Reply with attachments.
Oral evidence
Neither party sought leave to adduce oral evidence or cross examine any witnesses.
REVIEW OF EVIDENCE
Applicant’s statutory declaration
The applicant provided a statutory declaration on 6 April 2021. She advised that she met her husband at school when she was 13 or 14 years old. They commenced a relationship when they were about 18 years old, and they married on 5 February 1983. They built the family home in Kiama Downs after their marriage. Their son, Mitchell, was born in 1984 and their daughter, Jessica, was born in 1987.
The applicant stated that she had worked in the family business as a bookkeeper until her husband’s death, and she had not been employed since that time. She had been living off their savings. Her husband did not have a will.
The applicant indicated that the deceased contributed to the mortgage repayments that were deducted from the joint bank account. He paid for all household expenses, groceries utility bills and insurance. She had some funds in a savings account and had made a claim on her husband’s superannuation account.
The applicant indicated that her children and other family members were not dependent on the deceased at the time of his death. There was no one else dependent on her late husband.
Statutory declarations of family members
Statutory declarations have been provided by Mitchell Ford (the deceased’s son), Jessica Timms (the deceased’s daughter), Lynda Ford and Helen Simpson (the deceased’s sisters), Ina Ford (the deceased’s mother), and Colin Ford (the deceased’s brother).
They each advised that they were not dependent, they had sought legal advice, and they did not wish to make a claim.
Documents
The applicant has included copies of the birth certificates of her two children, her marriage certificate and the death certificates of the deceased and his father, a report to the Coroner from Wollongong Hospital, tax returns, financial statements, utility accounts and bank statements that are consistent with the applicant’s statutory declaration.
The respondent qualified Dr Herman and he reported on 5 July 2021. He agreed that the deceased most certainly suffered a pulmonary thromboembolus that caused his death.
The factual investigation provides details of the deceased’s employment and the circumstances of his injury. It includes copies of the statutory declarations that I have referred to above, bank statements, ambulance and hospital records, and the clinical notes of the Kiama Medical Practice, which are not relevant to the current determination.
SUBMISSIONS
The applicant’s solicitor, Ms Bourke, submits that interest should be paid at the Supreme Court rate as prescribed in Uniform Civil Procedure Rules 2005, namely 4.1% per annum. She submits that interest should commence from 6 April 2021 when the applicant provided her signed statutory declaration to the insurer’s investigator. The insurer delayed the determination of the claim until 4 August 2021, and the applicant was not responsible for this.
In the alternative, Ms Bourke submits that interest should run from 7 May 2021 when the claim was made by the applicant on the insurer.
The respondent’s solicitor, Ms Bentley, submits that interest should run from 4 August 2021 when the insurer had sufficient evidence and accepted liability. This was the date when it had full particulars. She submits that interest should not run from 6 April 2021, as some signed statutory decelerations were still outstanding. Further, the insurer did not have sufficient medical evidence at the time that the claim was made on 7 May 2021, so that date was inappropriate.
In the alternative, Ms Bentley submits that interest should run from 5 July 2021 when Dr Herman provided his report on causation.
Ms Bentley submits that the rate of interest should be 2% per annum, a rate that is consistent with recent determinations in the Commission.
REASONS
Dependency and apportionment
It was confirmed in Warilla Timber and Hardware Pty Ltd v Newton[1], Albury Real Estate Pty Ltd v Rouseand anor[2] and in Richardson v Turfco Australia Pty Ltd[3] 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.
[1] (1995) 11 NSWCCR 546, [554] to [555].
[2] [2006] NSWWCCPD 139, [45] to [50].
[3] [2016] NSWWCCPD 43.
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; ster; 8 ALR 455; 50 ALJR 454, 456, 457 and 459 (Aafjes)).”[8]
[6] [2011] NSWWCCPD 6, [139] (Kaur).
[7] Kaur, [126].
[8] Kaur, [148].
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].
According to the applicant, she was wholly dependent on the deceased at the time of his death. The deceased contributed to the cost of household and other expenses. She worked as a bookkeeper in her husband’s business and presumably in receipt of wages. In the circumstances, I am satisfied that the applicant was partly dependent on the deceased at the date of death.
I have reviewed the contents of the statutory declarations provided by the potential dependants. They have indicated that they received legal advice. They do not consider that they were dependent on the deceased at the time of his death, and they do not wish to make a claim.
In the circumstances, I am satisfied that there were no other persons wholly or partly dependent on the deceased at the date of death, so the lump sum death benefit of $834,200 payable pursuant to s 25(1)(a) of the 1987 Act will be paid to the applicant pursuant to
ss 29(1A) and 85A(1)(a) of the 1987 Act.
Interest
The power of the Commission to award interest before an order for payment is governed by s 109 of the 1998 Act. It provides:
“109 Interest before order for payment
(1) In any proceedings before the Commission, the Commission may order that there is to be included, in any sum to be paid, interest at such rate as the Commission thinks fit on the whole or any part of the sum for the whole or any part of the period before the sum is payable, subject to the limitations imposed by this section.
(2) Interest cannot be ordered under this section:
(a)on any compensation payable under Division 4 of Part 3 of the 1987 Act, or
(b)on any compensation payable under this Act for any period before a claim for the compensation was duly made, or
(c)on any compensation payable under this Act for any period during which proceedings before the Commission were adjourned on the application of the claimant for the compensation or pursuant to section 102….”
The power to award interest is discretionary 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. 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.
In Brambles Australia Ltd t/as Gardner Perrott Industrial Services v Hamilton & Monier Ltd[11], Acting Deputy President Harrington:
“The awarding of interest is a discretionary matter. Whether the discretion was exercised in favour of Mr Hamilton would depend on the evidence before the Commission. Relevant evidence may include the reasons as to why there was such a delay in the determination of Mr Hamilton’s claim and whether Mr Hamilton received social security benefits…”[12]
[11] [2006] NSWWCCPD 169 (Brambles).
[12] Brambles, [43].
In Haidary v Wandella Pet Foods Pty Limited, Dynamix Pty Ltd and Burrangong Pet Foods Pty Ltd[13], Deputy President Fleming discussed the reasoning behind an award of interest and the relevant interest rate. She commented:
“The award of interest by the Commission, pursuant to section 109 of the 1998 Act is discretionary. Mr Haidary will only be entitled to interest, if awarded, on those amounts of his weekly entitlement that were unpaid, and only from the date that his claim ‘was duly made’. The likely amount of interest that would be due on these sums is small, relative to the whole of his claim, but nonetheless they may form part of Mr Haidary’s entitlement. The purpose of ordering interest on an award is to compensate the worker for the loss of his or her income, not to penalise the employer (Virag v James N Kirby t/as Betts Electric Motors (1990) 6 NSW CCR; Healey v McPherson Binding Pty Ltd (1989) 5 NSWCCR 139).
…However, in my view the most relevant benchmark for the setting of the appropriate base rate of interest is the Supreme Court rate for any relevant period….”[14]
[13] [2005] NSWWCCPD 9 (Haidary).
[14] Haidary, [10] and [15].
Section 100 of the Civil Procedure Act 2005 makes provision for the payment of interest on judgments. It provides:
“1. In proceedings for the recovery of money (including any debt or damages or the value of any goods), the Court may include interest in the amount for which judgment is given, the interest to be calculated at such rate as the Court thinks fit:
(a) on the whole or any part of the money, and
(b) for the whole or any part of the period from the time the cause of action arose until the time the judgment takes effect….”
The rate of interest payable in the Supreme Court has been governed by the rate prescribed Rules 6.12 (6), 6.12 (7) and 6.12 (8) of the Uniform Civil Procedure Rules 2005. They provide:
“6.12 Relief claimed (cf SCR Part 7, rule 1; DCR Part 5, rules 6 and 6A; LCR Part 5, rules 1 and 2)
(6) An order for interest up to judgment must be specifically claimed.
(7) In the case of a liquidated claim, a claim for an order for interest up to judgment—
(a)must specify the period or periods for which interest is claimed, and
(b)may specify the rate or rates at which interest is claimed.
(8) If no rate of interest is specified under subrule (7)(b), the rate at which interest is claimed is taken to be—
(a)in respect of the period from 1 January to 30 June in any year—the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced, and
(b)in respect of the period from 1 July to 31 December in any year—the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced.”
I am mindful that the purpose of ordering interest is to compensate a dependant for not being able to access the significant death benefit. However, an order for interest is not intended as a penalty against the employer or insurer.
There was some delay in the finalisation of this claim, which was due to some inactivity on the part of the respondent. The insurer has had use of the funds pending the finalisation of the matter, and this has been to the applicant’s detriment.
The unusual circumstances of the deceased’s death clearly warranted investigation both on a factual and medical basis.
The applicant provided a statutory declaration to an investigator on 6 April 2021, and this formed an annexure to the report submitted to the insurer on 13 April 2021. The report had multiple annexures and there was only one unsigned statutory declaration from Ms Simpson, but a signed version dated 15 April 2021 was included as Attachment 17. This suggests that the insurer would not have received the investigation until, say, Monday 19 April 2021.
The power to award interest is discretionary, and this is apparent from the decisions of Members in the Commission. I will refer to three recent examples.
In Eather v Skillset Ltd & Ors[15], I ordered that interest was payable from the date of the filing of an Amended Application that identified all of the four dependants.
[15] NSWWCC No 4326/19 (unreported, Senior Arbitrator Capel, 9 March 2020)
In Zhang v Universe Investments Pty Ltd t/as Kings Seafood[16], Member Batchelor awarded interest from the date 21 days after the Application was filed, being the timeframe for filing a Reply.
[16] [2021] NSWPIC 128
In Youseph v Homebush Unit Trust t/as Primo Smallgoods& Ors[17], a matter that concerned four dependants, I determined that interest should be paid from the date when the final Reply was filed in the Commission, this being the date when the employer had full particulars of each dependant’s claim.
[17] [2021] NSWPIC 299
In my view, interest should run from the date that the respondent was provided with full particulars. This is consistent with the decision of Arbitrator Harris, as he then was, in Shashati & Ors v Secretary, Department of Family and Community Services[18].
[18] [2017] NSWWCC 99
The insurer did not have the investigation until about 19 April 2021, so it could not be said that it had full particulars at the time suggested by the applicant, namely on 6 April 2021.
There is no evidence to explain why Dr Herman was not qualified until 22 June 2021, why his report was not completed until 5 July 2021, and why the insurer did not accept liability until
4 August 2021.In my view, the insurer should have sought Dr Herman’s opinion as soon as it had received the factual investigation on or about 19 April 2021. I would have thought that a report could have been completed within one week of 19 April 2021, so in the exercise of my discretion I consider that interest should run from 26 April 2021, at which time the insurer should have had sufficient information to determine the claim.
Ms Bourke submits that the rate of interest should be 4% above the cash rate which currently stands at 0.10 %. In the past, I have ordered interest at this rate, but in my view, such a rate is unrealistic in these times. This is a view that is shared by other Members.
In the circumstances, in the excise of my discretion, I am satisfied that the intertest rate should be 2.5% per annum. Therefore, the applicant will be entitled to interest on the lump sum death benefit at the rate of 2.5% per annum from 26 April 2021 to 24 September 2021.
FINDINGS
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.
Margaret Ford was partly dependent for support upon the deceased at the date of death.
The deceased had no other persons dependent on him.
The respondent is liable for the payment of lump sum compensation and interest.
ORDERS
The respondent to pay the applicant lump sum compensation of $834,200 pursuant to
ss 25(1)(a), 29(1A) and 85A(1)(a) of the 1987 Act.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 s 109 of the 1998 Act.
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