Hathaway v MGI Resources Pty Ltd
[2023] NSWPIC 96
•10 March 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Hathaway v MGI Resources Pty Ltd & Ors [2023] NSWPIC 96 |
| APPLICANT: | Tina Hathaway |
| FIRST RESPONDENT: | MGI Resources Pty Ltd |
| SECOND RESPONDENT: | Isaac Hathaway |
| THIRD RESPONDENT: | Brock Hathaway |
| FOURTH RESPONDENT: | Hayleigh Hathaway |
| sENIOR Member: | Elizabeth Beilby |
| DATE OF DECISION: | 10 March 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; application for the distribution of the lump sum death benefit; Held - the lump sum benefit is payable in accordance with section 25(1)(a). |
| determinations made: | 1. I find that the applicant and the second and third respondents were dependent upon the deceased (Guy Hathaway) at the date of his death on 26 May 2021. 2. There was no other person who was dependent upon the deceased at the date of death. 3. The lump sum benefit payable in accordance with s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act) as of the date of death was $827,400. 4. The lump sum of $827,400 is to be apportioned amongst the dependants in the following manner: (a) 64% of the lump sum death benefit to the applicant ($529,536); (b) 12% of the lump sum death benefit to the second respondent ($99,288); (c) 12% of the lump sum death benefit to the third respondent ($99,288), and (d) 12% of the lump sum death benefit to the fourth respondent ($99,288). 5. I direct that the first respondent pay interest as agreed: (a) $4,112.97 to the applicant; (b) $771.18 to the second respondent; (c) $771.18 to the third respondent, and (d) $771.18 to the fourth respondent. 6. Pursuant to s 85A of the 1987 Act, I direct that the payment to fourth respondent is to be paid to the applicant. Such payment should be held on trust until the fourth respondent reaches the age of majority in October 2023. 7. I also direct that the entitlements of the second and third respondents are to be paid to the NSW Trustee and Guardian until the second and third respondent reach the age of 18 respectively. |
STATEMENT OF REASONS
BACKGROUND
Mr Guy Hathway (the deceased) died on 26 June 2020. The first respondent (the employer/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).
The only substantive issue for determination is the question of dependency and any apportionment of the death benefit.
ISSUES FOR DETERMINATION
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 PERSONAL INJURY COMMISSION
The parties were able to agree to a proposed resolution of the matter regarding both apportionment and interest.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (the Commission) and taken into account in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Reply to the Application to Resolve a Dispute (the Reply) by the first, second, third and fourth respondents, and
(c) late documents dated 23 February 2023.
In addition joint submissions were received drafted by the applicant and endorsed by the second, third and fourth respondents dated 1 March 2023. The submissions outlined a proposed apportionment of the lump sum benefit.
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”.
There is no doubt that the applicant and the three family respondents (the deceased’s children) had a close and loving relationship with Mr Henderson. The evidence in the Application and Replies supports such a contention.
The filed submissions clearly articulate support for the proposal so far as apportionment is concerned and I accept that the proposal is suitable.[1]
[1] Submissions paragraph 5.
The proposed apportionment between the respondents I find to be reasonable and appropriate in the circumstances.
There is no evidence before me that identifies any potential person who could be or wishes to be classed as dependent upon the deceased as at the date of death.
There is also an entitlement to interest which has agreed upon. The orders reflect the agreement.
The fourth respondent has requested that her lump sum and interest entitlement be paid to her mother (the applicant), such moneys to be held on trust until she reached the age of majority in October 2023. This will be a period of some eight months.
I understand that proposal is that the payments would be placed in a high interest bearing bank account which would mature after 21 October 2023. Further Rie Ivory, the fourth respondents tutor in these proceedings would be a cosignatory to the bank account with the applicant’s mother.
I accept that this proposal is reasonable, and I direct that the fourth respondent’s entitlement is paid to her mother on the basis outlined in paragraph 14 above.
Funds management
The joint submissions outline a calculation in respect of Funds management.
This matter is listed for telephone conference on 14 March 2023. If there is agreement on the calculation then an Order can be made at that time. If no agreement is made, then submissions will be heard accordingly.
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