Grayling v Pickering Transport Pty Ltd
[2021] NSWPIC 90
•22 April 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Grayling v Pickering Transport Pty Ltd [2021] NSWPIC 90 |
| APPLICANT: | Jillian Grayling |
| FIRST RESPONDENT: | Pickering Transport Pty Ltd |
| SECOND RESPONDENT: | Jesse Grayling |
| THIRD RESPONDENT: | Sarah Grayling |
| FOURTH RESPONDENT: | Joel Grayling |
| FIFTH RESPONDENT: | Ella Grayling |
| SIXTH RESPONDENT | Bethany Amy Grayling |
| MEMBER: | Mr John Wynyard |
| DATE OF DECISION: | 22 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- claim for interest pursuant to section 109 of the 1998 Act; Held- applying Kaur v Thales Underwater Systems Pty Ltd and Mudgee Explorer Tours Pty Ltd v Clarke & Ors, “duly made” means when claims for dependency made; appropriate rate 2%; claim for payments as a student pursuant to section 25(1)(b) of the 1987 Act rejected, as claimant was not enrolled at death of deceased. |
| DETERMINATIONS MADE: | 1. The first respondent will pay interest to the dependants at the rate of 2% for the following periods on the following sums: (a) To the applicant Jillian Grayling between 14 April 2016 and 21 January 2021 on $375,000. (b) To the second respondent Jesse Grayling between 30 October 2020 and 21 January 2021 on $187,500. (c) To the third respondent Sarah Grayling between 13 October 2020 and 21 January 2021 on $37,500. (d) To the fourth respondent Joel Grayling between 2 November 2020 and 21 January 2021 on 56,250. (e) To the fifth respondent Ella Grayling between 2 November 2020 and (f) To the sixth respondent Bethany Amy Grayling between 24 September 2020 and 21 January 2021 on $37,500. 2. The first respondent is to disburse the monies as set out in my Orders of 3 February 2021. |
STATEMENT OF REASONS
BACKGROUND
On 21 January 2021 agreement was reached between the parties as to the apportionment of the lump sum benefit payable pursuant to s 25 of the Workers Compensation Act 1987 (1987 Act) following the tragic death of Mr Anthony Grayling on 6 January 2016.
At the arbitration hearing on 21 January 2021 an application was made for interest to be paid on the lump sum and a timetable for written submissions was duly set. The submissions of the dependants was a joint submission made by Mr Misha Hammond of counsel and submissions in reply were prepared by Mr Christopher Michael from Messrs EMP Michael Lawyers. Mr Greg Niven of counsel also made submissions on behalf of Bethany Amy Grayling, the sixth respondent.
On 14 April 2016 the applicant’s solicitors wrote to the respondent in the following terms:
“ANTHONY GRAYLING E/B GREEN TRANSPORT PTY LTD
DATE OF DEATH: 6 JANUARY 2016We act on behalf of Mrs Gillian Marie Grayling of 19 Lachlan Parade, Red Cliffs, VIC 3496, who is the wife of the late Anthony Grayling. We have been consulted in relation to her entitlement to compensation arising from the death of Anthony whilst undertaking his work on 6 January 2016.
On the basis of our client’s instructions, we are of the opinion that our client has a potential entitlement to lump sum compensation pursuant to sections 25 and 26 of the Workers Compensation Act 1987.
We would be pleased if you would advise within 28 days whether you concede our client’s entitlement to compensation.
If you do not concede our client’s entitlement to compensation, we are instructed to file with the Workers Compensation Commission, an Application to Resolve a Dispute seeking payment of lump sum benefit to our client.
We enclose copies of the following:
1. Report of Death to the Coroner dated 7 January 2016;
2. Death certificate dated 5 February 2016.
We (sic) you please provide a copy of this correspondence to your workers compensation insurer so that we may liaise with them with respect to the claim.
We look forward to hearing from you.
Yours faithfully,
Carroll & O’Dea
Per:”The response by the insurer was to issue a s 74 notice denying liability on 24 June 2016[1].
Submissions for the first to fifth respondents
[1] Application to Resolve a Dispute (ARD) page 2.
Mr Hammond’s submissions were on behalf of the second to the fifth respondents.
Mr Hammond submitted uncontroversially that pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act), payment of interest is discretionary. I was referred to Haidary v Wandella Pet Foods Pty Ltd[2] as to the applicable rate. In that case DP Fleming referred to the system used by the Compensation Court (called the “Jamberoo schedule”). The learned Deputy President applied that schedule but stated that “the most relevant benchmark for the setting of the appropriate base rate of interest was the Supreme Court rate for any relevant period”[3] . The current equivalent rate Mr Hammond submitted was 4.1%.
[2] [2005] NSWWCCPD 9 at [10] (Haidary).
[3] At [15].
Mr Hammond also referred to Kaur v Thales Underwater Systems Pty Ltd[4]. He submitted that the object of the payment of interest was to compensate parties who had been deprived of the benefit of the monies eventually ordered in their favour. Mr Hammond submitted that prima facie a party should be entitled to interest unless some disentitling conduct has been established, which had not happened in the present case.
[4] [2011] NSWWCCPD 6 (Kaur).
Mr Hammond submitted that interest is payable under the Act 1998 from when a claim was “duly made”. Mr Hammond emphasised the word “a” in s 109(2)(b). He submitted accordingly that the claim was made on 14 April 2016 and denied on 24 June 2016. Mr Hammond noted that the letter dated 24 June 2016 did not seek particulars regarding dependency, but simply rejected the claim on the basis of the argument as to liability and made no enquiry as to dependency.
It followed, Mr Hammond argued, that interest should be payable from “the date a claim was made” which was 14 April 2016.
Mr Hammond helpfully supplied a table of the rates of interest that were 4% above the cash rate over the relevant period.
Mr Hammond submitted that when looking at the personal circumstances of the dependants of the deceased, it becomes self-evident that they need as much support as possible.
Submissions for the sixth respondent
Mr Greg Niven of counsel also provided submissions regarding the sixth respondent, Bethany Amy Grayling, who was in a somewhat different position to the other dependants. Ms Grayling had completed her schooling in 2015 and had been accepted as a student at La Trobe University to do a course in Human Services/Social Work on 18 January 2016. She did not commence that course due to the death of her father on 6 January 2016.
She was 18 at the time of her father’s death, and her 21st birthday was on 16 January 2018. She claims an entitlement to full weekly payments from 6 January to 16 January 2018, or alternatively for periods when she was undergoing tuition. These alternative periods were claimed as:
· 6 January 2016 to 14 March 2016;
· 5 June 2017 to 30 June 2017, and
· 2 October 2017 to 4 December 2017.
The first period was in relation to Ms Grayling’s dependency on her father up until the commencement of the first semester of tertiary education.
The second period related to the traineeship Ms Grayling entered into with a Sunraysia Community Health Centre.
The third period related to the time when she was an apprentice at Mitchel Street Florist in Bendigo.
Mr Niven relied on Ms Grayling’s statement of 27 October 2020. At paragraph 6 she said that she completed year 12 in 2015 at Redcliff Secondary College and obtained her Victorian Certificate of Education. The course that she was enrolled in was a four year degree course in Human Services/Social Worker. She said that she intended to commence the course in March 2016 whilst she remained living at home and working on a part time basis. She said:
“I understood that my father would provide me with support while doing a course such as accommodation, meals, assistance with education expenses, transport expenses and assistance with other living expenses.”
She said that had she commenced the course she would have expected completion by the end of 2019, and been working as a social worker. She said that following her father’s death she remained at home and worked in a local supermarket doing casual work for 10-15 hours per week, but that she was so affected by her father’s death that she did not commence the course. She said that she moved to Bendigo in the middle of 2017 and stayed with her aunt and uncle until 2019. During that time, in July 2018, she commenced and completed the course in Education Support Certificate III at Bendigo TAFE which she completed in early 2019. She also worked for three months in a florist in Bendigo. She now works in Kmart Bendigo approximately 20 hours per week where she has been since late 2017.
She said that in early 2020 she commenced a course of Child Educational Care Certificate III again at Bendigo TAFE. As of 27 October 2020 she had completed the coursework, but still had to complete the workplace component - following which she hoped to obtain a job in a centre.
I was not addressed as to relevant authority for dependants placed in Bethany’s situation.
First respondent’s submissions regarding the sixth respondent
Mr Michael referred to s 25(1)(b) of the 1987 Act in resisting Mr Niven’s submissions. He submitted that the legislative provisions had not been satisfied by the evidence. At the date of the deceased’s death, Ms Grayling was aged 18 years, and she was not a full-time student.
First respondent’s submissions regarding interest
Mr Michael accepted that the award of interest was discretionary under s 109 of the 1998 Act. He also submitted that the purpose of ordering interest is not to penalise the employer but to compensate the worker’s loss of entitlement, citing Virag v James N Kirby t/as Betts Electric Motors[5].
[5] (1990) 6 NSWCCR
Mr Michael also submitted that interest was not payable until a claim for “the” compensation was duly made pursuant to s 109(2)(b) of the 1998 Act.
It was submitted that “the” compensation can only be construed as a reference to the compensation being awarded, which in turn referred to the apportionment for the applicant and second to sixth respondents. That approach was consistent with Kaur, it was submitted.
Mr Michael submitted that the claim for compensation ultimately awarded was made on 14 April 2016 and that the entitlement crystalised in the orders made on 21 January 2021 in the sum of $375,000.
Mr Michael submitted that the relevant date that the claims were duly made related to when the respective dependency claims were made and he kindly set out a table showing those dates in relation to the second to sixth respondents.
The rate Mr Michael submitted, should not exceed 2% in the current historically low interest rate environment.
Dependants’ submissions in reply
An unaccredited document was served in reply which I assume came from Mr Hammond. He submitted that Mr Michael’s submissions as to when the claims were duly made was misconceived. Mr Hammond repeated his submission that it was on 14 April 2016 that was the relevant date as the insurer was on notice that a claim was being made and would have assumed that the death benefit would potentially require apportionment.
At that time the insurer was on notice that the entire death benefit was being claimed and the fact that the dependants had not been identified was not relevant to the exercise of the discretion.
Mr Hammond argued further that the issue of apportionment was a secondary or ancillary consideration and there would be no reason why the interest claim should not run until each claim was made.
Mr Hammond submitted that the reason why interest was not payable before a claim was made was because it was unfair to an insurer to have interest running before they were advised that they were at risk of an award pursuant to s 25 of the 1987 Act.
Mr Hammond again emphasised that once a claim had been made, the insurer was then on notice notwithstanding that the subsequent enquiry and investigation had yet to be completed.
As to the rate suggested by the first respondent, Mr Hammond submitted that the first respondent’s submission was difficult to understand. He argued that the insurer was gaining a benefit by virtue of the low interest rates. Notwithstanding that the Supreme Court rate is always fixed at a higher rate than the official rate, Mr Hammond submitted that it was the more relevant rate, as a low interest environment did nothing but benefit the insurer.
Mr Hammond submitted that the awarding of interest from a later date (and presumably at a lower rate than that advanced) was in effect a punitive exercise of the Commission’s discretion particularly in the case where the dependants, many of whom were minors, were affected.
DISCUSSION
Legislation
Section 25 of the 1987 Act provides:
“25 Death of worker leaving dependants
(1) If death results from an injury, the amount of compensation payable by the employer under this Act shall be-
(a) the amount of $750,000 (the ‘lump sum death benefit’ ), which is to be apportioned among any dependants who are wholly or partly dependant for support on the worker or (if there are no such dependants) paid to the worker's legal personal representative, and
(b)in addition, an amount of $66.60 per week in respect of--
(i)each dependant child of the worker under the age of 16 years, and
(ii)each dependant child of the worker being a student over the age of 16 years but under the age of 21 years.
(2) Payments in respect of a dependant child under subsection (1) (b) shall continue--
(a)except as provided by paragraph (b)--until the child dies or reaches the age of 16 years, whichever first occurs, or
(b)in the case of a dependant child who is a student at the time of the worker's death or after reaching the age of 16 years--until the child dies, reaches the age of 21 years or ceases to be a student, whichever first occurs.
(3) The amount of any weekly payments, or other compensation payable under this Act, shall not be deducted from the amounts referred to in subsection (1) (a) or (b).
(4) If an amount mentioned in subsection (1) (a) at any time after the commencement of this Act-
(a)is adjusted by the operation of Division 6, or
(b)is adjusted by an amendment of this section,
the compensation payable under subsection (1) (a) is to be calculated by reference to the amount in force at the date of death.
(4A) If the death of a worker results both from an injury received before the adjustment of an amount mentioned in subsection (1) (a) and an injury received after that adjustment, the worker shall, for the purposes of subsection (1) (a), be treated as having died as a result of the injury received after that adjustment.
(5) In this section-
‘child of the worker’ means a child or stepchild of the worker and includes a person to whom the worker stood in the place of a parent.
‘dependant child of the worker’ means a child of the worker who was wholly or partly dependant for support on the worker.
‘student’ means a person receiving full-time education at a school, college or university.”
Section 109 of the 1998 Act provides:
“(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.
(3) This section does not-
(a)authorise the giving of interest upon interest, or
(b)apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise.”
I accept Mr Hammond’s submission that s 109 makes the award of interest discretionary, to a point. However, there is no discretion to award interest pursuant to s 109(2) in the circumstances outlined therein. One of those statutory bars as provided in subparagraph (b) is for any period before a claim for compensation was “duly made.”
I found Mr Hammond’s argument as to the use of the indefinite article to be somewhat circular, with respect. He submitted that “a claim” within s 109(2)(b) meant when the first claim was made, which in the present case was on 14 April 2016. It can be seen that the contents of that letter did no more than indicate that the applicant was to make a claim.
Mr Hammond’s argument that because the insurer denied the claim on 24 June 2016, it needed no more particulars of any future claim does not withstand scrutiny. The insurer did not know whether Mrs Grayling was dependant or whether there were any other dependants, let alone their ages and levels of dependency. (I note in that regard the first respondent’s concession that the claim of 14 April 2016 was sufficient to be seen as a “duly made” claim).
Accordingly his contention that when an insurer declines a claim, the claim must have been taken to be a duly made claim takes no account of the financial implications that the claim might engender. At that stage there were no parties apart from the applicant who were without their money because they had not been identified, let alone their entitlement. Mr Hammond was in effect submitting that the word “duly” in the subparagraph should be interpreted as referring to any claim, which would give the adjective no work to do.
In Mudgee Explorer Tours Pty Ltd v Clarke & Ors (unreported) matter 6204/20 (Mudgee Explorers) I considered the authorities regarding the meaning of “duly made.” I found that the ratio decidendi in Kaur had been followed in a number of cases at Arbitral level, and that the effect was to define the phrase “duly made” as meaning when the case was fully particularised[6]. I said at [82]:
“I am persuaded that the appropriate date when the claim was fully particularised was when the claim for dependency was made. The applicant has supplied those dates in relation to each dependant, and Orders will be made accordingly.
This finding is in accord with the ratio decidendi in Kaur as applied within the Commission. I acknowledge the force of Mr McEnenay’s submissions, but am bound by the principles of stare decisis in any event.”
[6] From paragraph 80.
I accept the submission of the first respondent that the appropriate dates when the claims for dependency were made were as follows:
· For the applicant from 14 April 2016 to 21 January 2021, interest on $375,000
· Second respondent Jesse Grayling, interest on $187,500 from 30 October 2020 to 21 January 2021.
· Third respondent, Sarah Grayling, interest on $37,500 from 13 October 2020 to 21 January 2021.
· Fourth respondent , Joel Grayling, interest on $56,250 from 2 November 2020 to 21 January 2021.
· Fifth respondent, Ella Grayling, interest on $56,250 from 2 November 2020 to 21 January 2021.
· Sixth respondent, Bethany Amy Grayling, interest on $37,500 from 24 September 2020 to 21 January 2021.
I note Mr Hammond’s reference to Haidary, regarding the appropriate rate. However that 2005 decision was made in a very different economic climate to that which pertains today. Again, in Mudgee Explorers I addressed this issue as follows at [86]-[87]:
“I agree with the approach taken by Arbitrator Isaksen in Cameron v Enviro Pallets Pty Ltd[7] when he said….:
‘The rate of interest provided by Rule 36.7(1) of the Uniform Civil Procedure Rules 2005 is 4% above the cash rate set by the Reserve Bank, but the Commission is not bound by that. I consider regard must be had for the economic circumstances that the nation as a whole is now facing and that 2% above the cash rate is a more reasonable and realistic rate that should be paid on the lump sum death benefit for the period that I have allowed’.
The applicant referred to a number of Arbitral decisions where the rate of 2% has been applied, and I find that figure to be the appropriate rate, the Reserve Bank cash rate currently being 0.10%.”
[7] Unreported no 2070/20 decision dated 8 April 2020.
It follows that the rate should be at 2% for the periods I have set out above.
In dealing with Mr Niven’s submission on behalf of Ms Bethany Grayling, the sixth respondent, I am satisfied that the submissions from the first respondent provide a complete answer. Sections 25(1)(b)(ii) and 25(2)(b) are unambiguous in their terms. In both cases a dependant child must actually be a student, and is only eligible for payment when actually a student. Regrettably Ms Grayling was deprived of her eligibility by the timing of her father’s death, being before she could commence her studies at La Trobe University.
Therefore I make the following orders.
SUMMARY
The first respondent will pay interest to the dependants at the rate of 2% for the following periods on the following sums:
(a) To the applicant Jillian Grayling between 14 April 2016 and 21 January 2021 on $375,000.
(b) To the second respondent Jesse Grayling between 30 October 2020 and 21 January 2021 on $187,500.
(c) To the third respondent Sarah Grayling between 13 October 2020 and 21 January 2021 on $37,500.
(d) To the fourth respondent Joel Grayling between 2 November 2020 and 21 January 2021 on 56,250.
(e) To the fifth respondent Ella Grayling between 2 November 2020 and 21 January 2021 on $56,250.
(f) To the sixth respondent Bethany Amy Grayling between 24 September 2020 and 21 January 2021 on $37,500.
The first respondent is to disburse the monies as set out in my Orders of 3 February 2021.
John Wynyard
MEMBER
22 April 2021
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