Gleeson v Cartoscope Pty Ltd
[2021] NSWPIC 317
•31 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Gleeson v Cartoscope Pty Ltd [2021] NSWPIC 317 |
| APPLICANT: | Lisa Dorothy Gleeson |
| FIRST RESPONDENT: | Cartoscope Pty Ltd |
| SECOND RESPONDENT: | Sophie Morgan Gleeson |
| THIRD RESPONDENT: | Georgia Claire Gleeson |
| MEMBER: | Glenn Capel |
| DATE OF DECISION: | 31 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Death claim; determination of dependency, apportionment and payment of death benefit and interest; TNT Group 4 Pty Limited v Halioris and Kaur v Thales Underwater Systems Pty Ltd considered; Wratten v Kirkpatrick & Ors discussed and applied; Held- death benefit apportioned and orders for interest and payment. |
| DETERMINATIONS MADE: | 1. The deceased worker, Mathew John Gleeson, died on 26 November 2020 as a result of injuries sustained during the course of his employment with the respondent on 11 May 1998. 2. Lisa Dorothy Gleeson and Georgia Claire Gleeson were wholly dependent for support upon the deceased at the date of death. 3. Sophie Morgan Gleeson was partly dependent for support upon the deceased at the date of death. 4. The deceased had no other persons dependent on him. 5. The first respondent is liable for the payment of lump sum compensation and interest. |
| ORDERS MADE: | 6. The lump sum compensation of $834,200 payable pursuant to section 25(1)(a) of the Workers Compensation Act1987 is to be apportioned in accordance with section 29 of the Workers Compensation Act1987 as follows: (a) $583,940 to Lisa Dorothy Gleeson; (b) $125,130 to Sophie Morgan Gleeson, and (c) $125,130 to Georgia Claire Gleeson. 7. The interest in the agreed sum of $5,000 payable pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act1998 is to be apportioned as follows: (a) $3,500 to Lisa Dorothy Gleeson; (b) $750 to Sophie Morgan Gleeson, and (c) $750 to Georgia Claire Gleeson. 8. The first respondent to pay lump sum compensation pursuant to section 85A(1)(a) of the Workers Compensation Act1987 plus interest pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act1998 to the dependants as follows: (a) $587,440 to Lisa Dorothy Gleeson; (b) $125,880 to Sophie Morgan Gleeson, and (c) $125,880 Georgia Claire Gleeson. |
STATEMENT OF REASONS
BACKGROUND
The deceased worker, Mathew John Gleeson, died on 26 November 2020 as a result of injuries sustained during the course of his employment with Cartoscope Pty Ltd (the respondent) on 11 May 1998.
Liability was accepted by Employers Mutual Ltd (the insurer) pursuant to s 25(1)(a) of the Workers Compensation Act1987 (the 1987 Act) on 30 June 2021, subject to a determination of potential dependants.
Lisa Dorothy Gleeson (the applicant) filed an Application in Respect of Death of Worker (the Application) in the Personal Injury Commission (the Commission) on 29 July 2021.
The deceased’s daughters, Sophie Morgan Gleeson and Georgia Claire Gleeson are the second and third respondents respectively.
The applicant seeks apportionment of the lump sum death benefit of $834,200 in accordance with ss 25(1)(a) and 29 of the 1987 Act, interest pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and orders authorising payment of the lump sum pursuant to s 85A(1)(a) of the 1987 Act.
PROCEDURE BEFORE THE COMMISSION
During the telephone conference on 30 August 2021, I was advised that there was no dispute in respect of dependency, and after I expressed preliminary view, they indicated that they had agreed that the death benefit should be apportioned as follows:
(a) Lisa Dorothy Gleeson (70%);
(b) Sophie Morgan Gleeson (15%), and
(c) Georgia Claire Gleeson (15%).
The parties also agreed that the first respondent would pay interest on the death benefit in the sum of $5,000 pursuant to s 109 of the 1998 Act, such sum to be apportioned on a pro rata basis in accordance with the apportionment pursuant s 29 of 1987 Act.
The parties made brief submissions regarding apportionment. Given the non-contentious nature of the claim, these submissions were not recorded. I was also informed that the insurer had agreed to pay the funeral expenses.
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
10.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 of $834,200 payable – s 29 of the 1987 Act, and
(c) orders in relation to payment of the compensation and interest – s 85A(1)(a) of the 1987 Act.
EVIDENCE
Documentary evidence
11.The following documents were in evidence before the Commission and taken into account in making this determination:
(b) Application and attached documents;
(c) First Respondent’s Reply with attachments;
(d) Second respondent’s Reply with attachments, and
(e) Third Respondent’s Reply with attachments.
Oral evidence
12.The parties did not seek leave to adduce oral evidence or cross examine any witnesses.
REVIEW OF EVIDENCE
Statement of Lisa Dorothy Gleeson
13.The applicant provided a statement on 27 July 2021. She provided details of her relationship with the deceased, including their marriage and the birth of their two daughters, the deceased’s health issues that ultimately led to his death and their financial situation. She also described the nature of her husband’s familial relationships.
14.The applicant stated that she was employed on a part time basis at the time of her husband’s death. She had not been able to pursue her career because of the needs of her children and those of her husband. She confirmed that she was financially and emotionally dependent on her late husband, and she expected that this would have continued.
Statement of Sophie Morgan Gleeson
15.Sophie Gleeson provided a statement on 19 August 2021. She described how, during her school years, she relied on her father when her mother was at work. Despite his health issues, they had meaningful conversations and he encouraged her to study and participate in sport. He was always available for advice if she needed it.
16.The second respondent stated that her father would come and support her at her sporting events, and her parents paid for her uniforms and fees. She played representative netball, and her father helped to get her to training at Homebush. Her father sometimes came with her when she was learning to drive. Her parents paid for her first car and assisted with its running expenses.
17.The second respondent stated that after leaving high school and when she was attending university, she lived at home. Her parents paid for her mobile phone charges and health insurance. In late 2017, she obtained fulltime employment as a personal assistant. In November 2019, she moved out of the family home and into a rental apartment with her partner. Her parents provided furniture, furnishings, cutlery, crockery and other household items.
18.The second respondent stated that her parents visited regularly, and she continued to talk to her father on the phone. Her parents continued to pay for her health insurance, and they assisted with her phone bills, car expenses and paid her share of the rental bond. When her daughter was born, her parents bought clothes, toys and other baby things. Her father visited at least twice a week prior to his death. His death had shocked and saddened the whole family. She was now doing some casual work.
Statutory declaration of Georgia Claire Gleeson
19.Georgia Gleeson provided a statutory declaration on 13 August 2021. She advised that she relied on both of her parents for financial and non-financial support. She looked up to her father and loved spending time with him, especially when watching their favourite television show.
20.The third respondent stated that her father would walk her to and from school. He was supportive of her netball and helped her practice at home. He would also watch her at local carnivals. She took a lot of inspiration from him. He encouraged her to pursue a modelling career.
21.The third respondent stated that she had some psychological issues and received learning support when she was in high school. In May 2021, she started a childcare traineeship, but she realised that this career was not for her. Her mental state deteriorated, and she was diagnosed with depression and anxiety. She is on medication and has been referred to a psychologist. She is currently in receipt of Job Seeker payments from Centrelink and was looking for work. She still lived at home and is reliant on her mother who pays for some of her expenses.
Documents
22.The birth certificates of the deceased, the applicant and the respondents, Letters of Administration, together with the deceased’s marriage and death certificates are in evidence. There is nothing controversial about these documents.
23.There are a number of utility accounts that were in the name of the applicant and the deceased. Various other tax invoices show the level of some of the applicant’s outgoings.
24.The applicant’s solicitors obtained statements from the deceased’s mother and five siblings. They all indicated that they were not dependent on the deceased and did not want to make a claim.
REASONS
Dependency
25.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 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].
26.In TNT Group 4 Pty Limited v Halioris[3], McHugh JA stated:
[3] (1987) 3 NSWCCR 10; 8 NSWLR 486 (Halioris).
“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.”[4]
[4] Halioris, [489].
27.Further, in Kaur v Thales Underwater Systems Pty Ltd[5], President Keating stated:
[5] [2011] NSWCCPD 6 (Kaur).
“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;”[6]
[6] Kaur, [126].
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)).”[7]
[7] Kaur, [148].
28.I am satisfied that the evidence shows that the applicant and third respondent were wholly dependent on the deceased at the time of his death. Whilst it is true that the applicant was in part time employment, she was reliant on her husband’s workers compensation payments.
29.The second respondent had moved out of home and was in gainful employment, so
I consider that she was partly dependent on the deceased. Further, I am satisfied there were no other persons wholly or partly dependent on the deceased at the date of death.
Apportionment
30.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[8], Egan A-CCJ stated:
[8] (1996) 15 NSWCCR 32 (Wratten).
“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.”[9]
[9] Wratten, [34].
31.Each case requires an examination of the individual facts as no two matters are identical. The parties came to a preliminary agreement in relation to apportionment of the lump sum death benefit during the telephone conference on 30 August 2021.
32.The parties have put some thought into reaching a preliminary agreement as to apportionment, and after hearing my views on apportionment, they reviewed their positions.
33.I agree that the applicant should be entitled to the greatest proportion of the lump sum, having regard to her dependency, her age, and future needs. This must be weighed up with the dependency of each of the other dependants.
34.The two children were 22 and 18 years old respectively. In my view, their expectations would have been similar. They both benefitted from the support of their father before his death, and they would have expected such support in the future.
35.It is true that the second respondent had moved out of home, but the evidence shows that she still received emotional and financial support from her father, particularly after the birth of her daughter.
36.The third respondent was and still is living at home. She has some health issues, and
I believe that the deceased would have supported her like the applicant presently does.37.Having regard to the totality of the evidence, the appointment suggested by the parties is in my view appropriate and properly reflects the respective expectations and entitlements of the parties.
38.Accordingly, I apportion the lump sum payment pursuant to s 29 of the 1987 Act as follows:
(a) $583,940 to Lisa Dorothy Gleeson (70%);
(b) $125,130 to Sophie Morgan Gleeson (15%), and
(c) $125,130 to Georgia Claire Gleeson (15%).
Interest
39.The first respondent is to pay interest of $5,000 pursuant to s 109 of the 1998 Act as per the agreement as follows:
(a) $3,500 to Lisa Dorothy Gleeson (70%);
(b) $750 to Sophie Morgan Gleeson (15%), and
(c) $750 to Georgia Claire Gleeson (15%).
FINDINGS
40.The deceased worker, Mathew John Gleeson, died on 26 November 2020 as a result of injuries sustained during the course of his employment with the respondent on 11 May 1998.
41.Lisa Dorothy Gleeson and Georgia Claire Gleeson were wholly dependent for support upon the deceased at the date of death.
42.Sophie Morgan Gleeson was partly dependent for support upon the deceased at the date of death.
43.The deceased had no other persons dependent on him.
44.The first respondent is liable for the payment of lump sum compensation and interest.
45.The lump sum compensation of $834,200 payable pursuant to s 25(1)(a) of the 1987 Act is to be apportioned in accordance with s 29 of the 1987 Act as follows:
(a) $583,940 to Lisa Dorothy Gleeson;
(b) $125,130 to Sophie Morgan Gleeson, and
(c) $125,130 to Georgia Claire Gleeson.
46.The interest in the agreed sum of $5,000 payable pursuant to s 109 of the 1998 is to be apportioned as follows:
(a) $3,500 to Lisa Dorothy Gleeson;
(b) $750 to Sophie Morgan Gleeson, and
(c) $750 to Georgia Claire Gleeson.
47.The first respondent to pay lump sum compensation pursuant to s 85A(1)(a) of the 1987 Act plus interest pursuant to s 109 of the 1998 Act to the dependants as follows:
(a) $587,440 to Lisa Dorothy Gleeson;
(b) $125,880 to Sophie Morgan Gleeson, and
(c) $125,880 Georgia Claire Gleeson.
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