Gates Contracting Services Pty Ltd ATF Gates Haulage Trading Trust v Machon
[2023] NSWPIC 609
•10 November 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Gates Contracting Services Pty Ltd ATF Gates Haulage Trading Trust v Machon [2023] NSWPIC 609 |
| APPLICANT: | Gates Contracting Services Pty Ltd ATF Gates Haulage Trading Trust |
| RESPONDENT: | Erica Machon |
| SENIOR MEMBER: | Elizabeth Beilby |
| DATE OF DECISION: | 10 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim in respect of lump sum death benefits; worker died in a motor vehicle accident; no dispute that the deceased died as a result of an injury arising out of or in the course of employment with the applicant who conceded liability to pay the lump sum benefit pursuant to section 25(1)(a); respondent was married to the deceased as at the time of death; they lived together and shared assets; no other persons dependent, or who claimed dependency, on the worker for support at the date of his death; Held – the respondent was the only person dependent upon the deceased as at the date of death; parties were able to agree on interest; orders made accordingly. |
| DETERMINATIONS MADE: | The Commission determines: 1. The deceased worker, Alan Machon, died on 24 April 2023, as a result of an injury arising out of or in the course of his employment with the applicant. 2. The respondent was dependent on the worker for support at the date of his death. 3. There were no other persons dependent, or who claims dependency, on the worker for support at the date of his death. 4. The applicant is liable for payment of the lump sum death benefit pursuant to s 25 (1) (a) of the Workers Compensation Act 1987 in the amount of $891,100. 5. The applicant is to pay interest on the lump sum benefit in the agreed sum of $11,616.03 6. Pursuant to s 85A (1) of the Workers Compensation Act 1987 the lump sum benefit and interest is to be paid directly respectively to the respondent. |
STATEMENT OF REASONS
BACKGROUND
On 24 April 2023 Mr Alan Machon (the deceased) died as a consequence of injuries sustained in a motor vehicle accident. Gates Contracting Services Pty Ltd ATF Gates Haulage Trading Trust (the applicant) has admitted liability in respect of the death and is liable to pay compensation pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act) (the lump sum death benefit).
Mr Machon was married to Erica Machon (the respondent). Before their relationship commenced, Mr Machon had three children namely Chelsea Machon, Hayley Matias (nee Machon) and Travis Gooden. These children of the deceased are all adults and were not residing with the deceased as at the time of death.
Sadly there appears to have been no ongoing relationship between the deceased and his son Travis Wooden for a significant period of time before the fatal accident.
The respondent’s daughter Courtney Stafford, also an adult, lived with her mother and the deceased at the time of death.
The only substantive issues for determination at the preliminary conference in this matter were the questions of dependency, apportionment of the death benefit and interest.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) dependency at the time of death;
(b) apportionment of the lump sum death benefit, and
(c) interest.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The claim was listed in the Personal Injury Commission (Commission) for preliminary conference on 8 November 2023. The parties were able to agree to a proposed resolution of the matter at that time.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(d) Application to Resolve a Dispute and attached documents, and
(e) Reply to the Application to Resolve a Dispute.
Dependency
A dependent is defined in s 4 of the Workplace Injury Management and Workers Compensation Act 1998 to include persons who were “wholly or in part dependent for support on the worker at the time of the worker’s death”.
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].
The respondent was married to the deceased at the time of his death. The respondent’s evidence outlines the support the deceased gave to her which included financial dependency. The deceased and the respondent lived together and shared assets. I accept that the respondent was dependent upon the deceased as at the time of death.
The children of the deceased are all adults and are living independently (though his
step- daughter Courtney lived with her mother and the deceased).All adult children, and step-children (save for Travis Wooden[2]) have provided clear instructions that they do not wish to be considered as dependent upon the deceased.
[2] Sometimes referred to as Travis Gooden in filed documents
Many attempts have been made by the legal representatives in this claim to contact Mr Wooden in respect of these proceedings however there has been no communication from him.[3] In any event, there is no evidence before me to indicate, particularly given the estranged relationship between him and the deceased, that he was in any way dependent upon the deceased as at the time of death.
[3] Application pages 22, 23,24, 28 and 30.
I find that the respondent was dependent upon the deceased as at the date of death and would have expected continued support financially but for his death.
I find that there is no other person who was dependent or wishes to be considered as dependent upon the deceased as at the time of death.
I therefore make orders as sought by the parties in relation to the proposed apportionment The apportionment recognises the filed evidence which illustrates the dependency of the respondent.
Interest
A claim was made for interest on the lump sum benefit.
The parties were able to agree on the entitlement to interest and this is reflected in the orders.
Orders
The deceased worker, Alan Machon, died on 24 April 2023, as a result of an injury arising out of or in the course of his employment with the applicant.
The respondent was dependent on the worker for support at the date of his death.
There were no other persons dependent, or who claims dependency, on the worker for support at the date of his death.
The applicant is liable for payment of the lump sum death benefit pursuant to s 25 (1) (a) of the 1987 Act in the amount of $891,100.
The applicant is to pay interest on the lump sum benefit in the agreed sum of $11,616.03.
Pursuant to s 85A (1) of the 1987 Act the lump sum benefit and interest is to be paid directly respectively to the respondent.
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