Frimon Pty Ltd t/as Viel & Santin Transport v Johnson

[2022] NSWPIC 78

AMENDED CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Frimon Pty Ltd t/as Viel & Santin Transport v Johnson & Others [2022] NSWPIC 78

APPLICANT:

Frimon Pty Ltd t/as Viel & Santin Transport

FIRST RESPONDENT:

Joanne Elizabeth Johnson

SECOND RESPONDENT: 

Ashlee May Johnson

SENIOR MEMBER:

Elizabeth Beilby 

DATE OF DECISION:

23 February 2022 (amended 24 February 2022)

CATCHWORDS:

WORKERS COMPENSATION - Claim for lump sum statutory benefits; Held- liability accepted by the applicant; apportionment and dependency determined.  

DETERMINATIONS MADE:

1.    I find that the first and second respondents were dependent for support upon the deceased, Mark Johnson, at the date of his death.

2.    There was no other person dependent upon the deceased at the date of death.

3. The lump sum benefit payable in accordance with section 25(1)(a) of the Workers Compensation Act 1987 as of the date of death was $827,400.

4. Pursuant to section 29(1)(a) of the Workers Compensation Act 1987, the lump sum benefit is to be apportioned in the following manner:

(a)    $550,000 to the first respondent, and

(b)    $277,400 to the second respondent.

5.     The applicant is to pay interest on the lump sum benefit in the following manner:

(a)    at 2% per annum to the first respondent from 10 December 2021 to
21 February 2022, and

(b)    at 2% per annum to the second respondent from 28 January 2022 to
21 February 2022.

STATEMENT OF REASONS

BACKGROUND

1. Mr Mark Johnson (the deceased) died in the course of his employment on 17 September 2020. The employer (the applicant) has admitted liability in respect of the death and is liable to pay compensation pursuant to section 25 of the Workers Compensation Act 1987 (the 1987 Act) (the lump sum death benefit).

2. The only substantive issue for determination is the question of dependency and apportionment of the death benefit to the respective applicants.

ISSUES FOR DETERMINATION

1. The parties agree that the following issues remain in dispute:

   (a)    dependency at the time of death, and

   (b)    apportionment of the lump sum death benefit.

PROCEDURE BEFORE THE COMMISSION

1. The claim was listed in the Personal Injury Commission (the Commission) for a telephone conference on 21 December 2022. The parties were able to agree to a proposed resolution of the matter at that time.

EVIDENCE

Documentary evidence

1. The following documents were in evidence before the Commission and taken into account in making this determination:

   (a)    Application to Resolve a Dispute and attached documents;

   (b)    Reply from the first respondent;

   (c)    Reply from the second respondent, and

   (d)    Late documents filed on 16 February 2022, 17 February 2022 and
   18 February 2022.

Dependency

1. A dependent is defined in section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to include persons who were “wholly or in part dependent for support on the worker at the time of the worker’s death”.

2. A reasonable expectation that the deceased would provide future support can satisfy the concept of dependency.[1]

   [1] TNT Group 4 Pty Ltd v Halioris (1987) 8 NSWLR 486 at 490.

3. The parties have filed statements to support their applications in this matter.  Evidence of dependency has been provided by statement from the respondents individually. I will now briefly outline the relationship the respondents had with the deceased.

4. Joanne Johnson (the first respondent) married the deceased in 1997. Their daughter, (the second respondent) was born in 1999. At the time of death, the first respondent had separated from her husband however he continued to pay both the residential mortgage and council rates. In addition he performed general maintenance and repairs on the residential property and provided ad hoc financial assistance.

10.Ashlee Johnson (the second respondent) is the daughter of the deceased. At the time of death, the second respondent was not residing with her father but with her mother and was working at an Ampol Service Station.

11.The relationship the second respondent had with her father was one of support and encouragement. Her father took an active role in her life and would provide financial assistance to her whenever it was required. The second respondent also receive the benefit of accommodation and the payment of ancillary expenses as her father paid the residential mortgage of the property she resided at and the rates.

12.I accept that the deceased would have continued to have assisted the second respondent as and when was required when a need for financial assistance arose.

13.At the telephone conference, the parties were able to agree to a proposed distribution of the lump sum benefit. I find that the proposed resolution is appropriate and fair in the circumstances. It takes into account the relationship both respondents had with the deceased, their actual partial dependency of the date of death and also an anticipation of financial assistance into the future if and so required.

14.I therefore endorse the proposed distribution of the lump sum benefit as agreed between the parties.

15.There is no evidence that anyone else was dependent upon the deceased as at the date of death other than the two respondents.

Interest

16.A claim is made in respect of interest on the lump sum benefit by the first and second respondents.

17.The parties were able to resolve this issue agreeing on a 2% per annum interest rate. The interest in respect of the first respondent is to run from 10 December 2021 to the date of the telephone conference, whilst the second respondent’s entitlement is to run from 28 January 2022 until the date of the telephone conference.