Haworth Transport Services Pty Ltd v Drakopoulos
[2023] NSWPIC 571
•30 October 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Haworth Transport Services Pty Ltd v Drakopoulos & Ors [2023] NSWPIC 571 |
| APPLICANT: | Haworth Transport Pty Ltd |
| FIRST RESPONDENT: SECOND RESPONDENT: THIRD RESPONDENT: | Elizabeth Johanna Drakopoulos Samantha Marr Effie Drakopoulos |
| PRINCIPAL MEMBER: | Glenn Capel |
| DATE OF DECISION: | 30 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Death claim; determination of dependency, apportionment, and payment of death benefit and interest; TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd, and Wratten v Kirkpatrick & Ors discussed and applied; Held – death benefit and agreed interest apportioned and orders for payment. |
| DETERMINATIONS MADE: | The Commission determines: 1. The name of the third respondent is amended to Effie Drakopoulos. 2. The deceased worker, Angelo Drakopoulos, died on 16 January 2023 as a result of injuries sustained during the course of his employment with the applicant. 3. Elizabeth Johanna Drakopoulos, Samantha Marr and Effie Drakopoulos were partly dependent for support upon the deceased at the date of death. 4. The deceased had no other persons dependent on him. 5. The applicant is liable for the payment of lump sum compensation and interest. The Commission orders: 6. The lump sum compensation of $871,200 payable pursuant to s 25(1)(a) of the Workers Compensation Act 1987 is to be apportioned in accordance with s 29 of the of the Workers Compensation Act 1987 as follows: (a) Elizabeth Johanna Drakopoulos – $290,400 (one third); (b) Samantha Marr – $290,400 (one third), and (c) Effie Drakopoulos – $290,400 (one third). 7. The applicant to pay interest on the lump sum of $871,200 at the rate of 6.1% per annum pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 as follows: (a) Elizabeth Johanna Drakopoulos: 28/7/23 to 27/10/23 in the sum of $4,465. (b) Samantha Marr: 19/9/23 to 27/10/23 in the sum of $1,892.77. (c) Effie Drakopoulos: 19/9/23 to 27/10/23 in the sum of $1,892.77. 8. The applicant to pay the first respondent $294,865 pursuant to s 85A(1)(a) of the Workers Compensation Act 1987 and s 109 of the Workplace Injury Management and Workers Compensation Act 1998. 9. The applicant to pay the second respondent $292,292.77 pursuant to s 85A(1)(a) of the Workers Compensation Act 1987 and s 109 of the Workplace Injury Management and Workers Compensation Act 1998. 10. The applicant to pay the third respondent $292,292.77 pursuant to s 85A(1)(a) of the Workers Compensation Act 1987 and s 109 of the Workplace Injury Management and Workers Compensation Act 1998. |
STATEMENT OF REASONS
BACKGROUND
The deceased worker, Angelo Drakopoulos (the deceased), died on 16 January 2023 as a result of injuries sustained during the course of his employment with Haworth Transport Pty Ltd (the applicant).
The deceased’s defacto partner, Samantha Marr (the second respondent), submitted a fatality claim form to the applicant’s insurer, Employers Mutual NSW Ltd (the insurer) on or about 8 February 2023.
On 20 March 2023, Mr Driscoll, the solicitor for the deceased’s daughter, Elizabeth Drakopoulos (the first respondent), advised the insurer that she intended to make a death benefit claim as she was dependent on the deceased. Tax invoices receipts for the deceased’s funeral expenses paid by the first respondent were submitted and these have been reimbursed by the insurer.
The insurer’s solicitor, Mr Harris, requested particulars of potential dependants from the first respondent on 31 May 2023.
On 28 July 2023, Mr Driscoll responded to the request for particulars and served a statement and various documents. He advised that there would be a dispute regarding the dependency of the second respondent, and that the first respondent’s mother, Effie Drakopoulos (the third respondent) intended to make a claim.
Liability was accepted by the insurer pursuant to ss 25(a) and 26 of the Workers Compensation Act1987 (the 1987 Act) on 3 August 2023, subject to a determination of potential dependants.
On 7 August 2023, Mr Harris sent an email to the second respondent’s solicitor, Mr Matthews, seeking confirmation that she claimed to be a dependent on the deceased and would be entitled to make a claim. Mr Matthews immediately responded by email that his client intended to make a claim.
On 7 August 2023, Mr Harris sent a similar email to the third respondent’s solicitor, Mr Calf, seeking confirmation that his client claimed to be a dependent on the deceased and would be entitled to make a claim. On 9 August 2023, Mr Calf confirmed that the third respondent intended to make a claim.
On 24 August 2023, Mr Harris asked the solicitors for the second and third respondents to serve statements from their clients regarding their alleged dependency. Both responded that this would take about 21 days.
The applicant filed an Application in Respect of Death of Worker (the Application) in the Personal Injury Commission (the Commission) on 25 August 2023, seeking payment of the lump sum death benefit of $871,200 in accordance with s 25(1)(a) of the 1987 Act, apportionment of the benefit in accordance with s 29 of the 1987 Act and an order authorising payment of the lump sum pursuant to s 85A(1)(a) of the 1987 Act.
PROCEDURE BEFORE THE COMMISSION
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.
At the preliminary conference on 26 October 2023, I was informed that the parties had reached agreement as to a proposed apportionment as follows:
(a) Elizabeth Johanna Drakopoulos – $290,400 (1/3);
(b) Samantha Marr – $290,400 (1/3), and
(c) Effie Drakopoulos – $290,400 (1/3).
I was also informed that the parties had also reached agreement regarding interest.
ISSUES FOR DETERMINATION
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 $871,200 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 and s 109 of the 1998 Act.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) Application and attached documents;
(b) Reply with attachments, and
(c) Application to Admit Late Documents received on 10 October 2023.
Oral evidence
Neither party sought leave to adduce oral evidence or cross examine any witnesses.
REVIEW OF EVIDENCE
Statement of Elizabeth Drakopoulos
Elizabeth Drakopoulos provided a statement on 26 July 2023. She indicated that she was dependent on the deceased, and apart from her mother, she did not anticipate that there was anyone else dependent on the deceased at the time of his death. The deceased’s parents had both passed away and he was estranged from his only sister.
The first respondent stated that she regular spoke to and interacted with her father and he never mentioned that he had a partner or spouse. She claimed that she was extremely close to her father and she had a significant emotional dependency on him. He gave her a car, maintained the vehicle and took her to specialist appointments when she was ill in 2015 and 2016. He supported her when she had exams and when going for job interviews.
The first respondent advised that the deceased supported her financially when she was a child and young adult. He paid for her university fees and textbooks. He helped her to lease a property in Canberra in 2015, paid the bond, paid for the first rent instalment, and purchased furniture and household items for her. He gave her $10,000 in 2016 and a better car.
The first respondent stated that her father was declared bankrupt in 2018 and was discharged from bankruptcy in 2021. He was forced to sell an investment apartment in Elizabeth Bay and only provided emotional support during this period.
The first respondent stated that in late 2022, she accompanied her father when he visited a mortgage broker regarding the joint purchase of a property for him to live in. He did not mention having a spouse or partner at the meeting.
The first respondent confirmed that whilst her father could not provide financial support, he provided her with extensive support throughout 2022 when she was renovating her apartment. This included project managing the renovation and advising on quotes, demolishing the kitchen, bathroom and wardrobe, and painting the apartment. He gave her furniture, dinnerware and antiques for her use or sell to assist in paying for the renovations. Some tasks were unfinished at the time of his death.
The first respondent stated that she was aware that the second respondent had been assisting in the care of her ill grandmother. She believed that after her grandmother died, the second respondent continued to live at the residence. In late 2022, her father told her that he would prefer that Samantha find her own accommodation because he only had her around to care for his mother, but he did not want to push her out straight away.
The first respondent indicated that in January 2023, her father told her that he had kicked Samantha out because he did not want her around and he wanted to be by himself.
The first respondent stated that her parents remained on good terms and shared the desire to pay off the mortgage of the family home in Bexley. He mother was or was at least anticipating being financially dependent on the deceased and he had asked her to take care of the third respondent.
Statement of Panagiotis Dracopoulos
Panagiotis Dracopoulos, the deceased’s cousin, provided a statement on 5 June 2023. He stated that the deceased had a strong relationship with the third respondent. He had remained in contact with the deceased and they had each stayed at each other’s homes in 2019, 2020 and 2022. The deceased had always talked about Effie and that he needed to clean up his act and go back to his family.
Mr Dracopoulos was confident that the deceased would have healed the wounds that he caused had he not passed away. He did not believe that the deceased had a spouse or defacto partner at the time of his death but was aware that he had been involved in a number of casual relationships.
Mr Dracopoulos stated that he was aware that the second respondent was caring for the deceased’s mother and was living in her home for a time. The deceased told him that a friend had suggested that he contact her and Samantha had agreed to provide care in exchange for free food and board. After his mother had died, the deceased told him that he wanted to get rid of Samantha, but he did not want to make her homeless. He told the deceased that he needed to get her out of his mother’s house and repair his relationship with Effie. The deceased agreed with what he said.
Mr Dracopoulos stated that in phone conversations and text messages in December 2022 and January 2023, the deceased informed him that he was no longer living with Samantha, and in a text on 31 December 2022, he advised that he had split up with her.
The text dated 31 December 2023 is attached to the statement and says: “Split up with the woman. She hasn’t moved out yet but I can’t wait”.
Statement of Effie Drakopoulos
Effie Drakopoulos provided a statement on 18 September 2023. She stated that she married the deceased in 1988 and lived in a house in Bexley where she still resides. Their daughter Elizabeth was born in 1992. He was a very devoted father and a hands-on dad, who was always ready to help her. She was financially dependent on the deceased until her daughter was about five years old. She then returned to work as a high school teacher at Hoxton Park. Her late husband was a successful dentist.
The third respondent stated that they purchased an investment property in Potts Point, with the intention that their daughter would live there after she finished university. The deceased was diagnosed with liver cancer in 2012 and had two major operations in 2013. Their financial situation and their marriage suffered because of the deceased’s physical and mental health issues, and he was eventually declared bankrupt in 2018.
The third respondent stated that the Potts Point apartment was sold by the bankruptcy trustee and as a result of a financial settlement, she took on sole responsibility for the mortgage on the Bexley property. She has continued to pay the mortgage since her husband’s bankruptcy.
The third respondent stated that the deceased regularly expressed his disappointment regarding the financial situation that he had caused. She believed from his statements to her and to their daughter that he would have assisted her to pay off her mortgage in the future. He repeatedly told her that the Bexley property would always be hers and that he would look after her and their daughter. She maintained a close personal relationship and they continued to provide each other and Elizabeth with emotional support until his death.
The third respondent stated that they still maintained some joint financial matters. They were still on the same Medicare card and the deceased is named on some of the utility bills for the Bexley property. The deceased made caskets for her dogs when they died in 2016 and 2017, and supported her relatives’ funerals in 2017, 2018 and 2020.
The third respondent stated that the deceased helped with minor repairs and maintenance at her house. He maintained the hedges and had planned to repair and stain the deck.
The third respondent stated that the deceased did not have any other partner or spouse at the time of his death. She had met the second respondent and understood that she cared for the deceased’s mother before she died. She believed that her husband was committed to her and their daughter. She never gave up on the belief that the deceased would come back to her.
The third respondent stated that following his bankruptcy, the deceased promised to repay the mortgage debt, and she anticipated that he would provide her with financial assistance in the future. Although they had marital issues, they never contemplated a divorce, and they maintained their married status with family, friends, and work colleagues.
The third respondent stated that they showed each other affection, the deceased often visited her and he told her that he loved her. He called her on the morning of his death and told her that he was making a delivery to the school where she had worked at Hoxton Park. The news of his death caused her great distress and emotional upset.
The third respondent stated that she and her daughter identified the deceased’s body, they collected his personal belongings, and arranged for his funeral, for which she paid the deposit. She had been unable to go to or near the Hoxton Park school since her husband’s death. She still is upset by her husband’s death. He was proud of her professional achievements and always supported and encouraged her career. He provided emotional support and they remained concerned about each other's health and welfare. He remains the love of her life and she will forever be emotionally tied to him.
Statement of Samantha Marr
Samantha Marr provided a statement on 18 September 2023. She advised that she met the deceased in 2012 or 2013 at a men’s club in Kings Cross where she worked as an exotic dancer. He would visit the club with friends and at one stage, the deceased asked her she would like to go out socially. The deceased told her that he was separated from his wife and had been in a relationship with a woman, Maria, for many years. She initially declined to go out with him because of his relationship with Maria, but later they started to have lunch and dinner together.
Ms Marr stated that she worked as a child care in 2014 and then returned to work at another club at Kings Cross. She met the deceased again and he insisted that she stay with him at his Elizabeth Bay apartment. In August or September 2016 they commenced a relationship and became defacto partners. They lived in the apartment until about June 2017.
Ms Marr stated that they moved into the house of the deceased’s mother in June 2017 when his sister moved out. The deceased cooked for them and she provided personal care for the deceased’s mother and kept the house in order. She was not employed at the time and the deceased supported her with the earnings from his dental practice and with the proceeds from the sale of some cars. He paid the bills and purchased groceries. His mother died in July 2020.
Ms Marr stated that they became engaged in December 2017. He gave her an engagement ring and he would give her money to top up her mobile phone and so she could go to the hairdressers. He paid her airfare to go to Brisbane and her TAFE fees, purchased a car and paid for most of the groceries because he liked to cook. He also transferred money into her bank account to help out with repayments on her car loan.
Ms Marr indicated that when the deceased was diagnosed with cancer in 2017 and he got behind with the payment of the bills, she contributed to the payments. She would buy groceries for the household when she could afford to. The reference to loan repayments in her bank account statements represented payments made by the deceased to assist her living expenses and were not in respect of a loan.
Ms Marr stated that they lived in the house until November 2022. They then moved to rental premises in Belmore. They both signed the lease and were living there at the time of the deceased’s death. She paid the rent of $620 per week. The deceased mowed the lawns, installed the washing machine and did other small repairs around the household.
Ms Marr confirmed that she was the deceased’s partner and she refuted what his wife, daughter and Mr Dracopoulos had said. At the time of his death, they were in a committed relationship and he never told her that he wanted to end it.
Ms Marr stated that in December 2019, when Mr Dracopoulos visited them, he was pleased that the deceased was in a happy relationship with her and that he had settled down. He also congratulated them on their engagement. They planned to get married in late 2023. They were living together, contract to what Mr Dracopoulos said in his statement.
Ms Marr stated that they had planned to have children and hoped to be able to move to a small farm near Richmond. They spent the night before his death together and the deceased was happy because he had been told about a promotion. He overslept and could not find his keys on the morning of his death.
Statutory declaration of Christopher Becker
Christopher Becker, the proprietor of Antiques-Art-Design at Potts Point, provided a statutory declaration on 27 August 2023. He confirmed that the deceased and Ms Marr often attended his store and the deceased had purchased a number of items for himself and Ms Marr. He described the jewellery that had been purchased including an engagement ring and two wedding bands. He stated that the deceased and Ms Marr were devoted to each other. Photographs of the two wedding rings and a large ring with blue stones are attached to the second respondent’s reply.
Statement of Anna Dionisopoulos
Anna Dionisopoulos, a neighbour of the deceased’s mother, provided a statement on 29 August 2023. She confirmed that she met Ms Marr when she and the deceased moved into the house five or six years ago to look after the deceased’s mother. They appeared to be living together as a loving couple and were in a committed defacto relationship.
Ms Dionisopoulos indicated that the deceased was close to her next door neighbour, Theo, and he was always around Theo’s place. Ms Marr would also regularly visit Theo’s mother. After they moved into the property in Belmore in about November 2022, she would occasionally speak to the deceased when he was visiting Theo. On the occasions that she saw them they appeared as a couple.
Statement of Peter Topperwien
Peter Topperwien provided a statement on 5 September 2023. It is unclear who he is and how he knew the deceased and Ms Marr.
Mr Topperwien stated that he had been to their residence in Belmore and from his observations and their interactions, he believed that Ms Marr was the deceased’s defacto partner. It was known that they had been together for about eight or nine years. The deceased told him that they were going to get married and that he would be invited to the wedding.
Statement of Paul McCann
Paul McCann, a solicitor, provided a statement on 18 September 2023. He advised that he had acted for the deceased in various legal matters. When the deceased came to him for legal advice, Ms Marr usually accompanied him. On one occasion, he visited the deceased at his Potts Point unit and Ms Marr was present. He believed that Ms Marr was the deceased’s defacto partner.
Statement of Theo Sourlis
Theo Sourlis provided a statement on 18 September 2023. He confirmed that he had known the deceased for approximately 52 years and since he had returned to live in Belmore, he had become close friends with the deceased and interacted with him almost daily. About six years ago, the deceased introduced him to Ms Marr, who he described as his fiancé. He told him that they had lived together in an apartment at Elizabeth Bay. He had purchased a wedding ring and had said that he was going to marry her when the time was right.
Mr Sourlis stated that from time to time, the deceased and Ms Marr had disagreements, and on many occasions, the deceased would say that he was finished and that he was kicking her out. They were very dependent on each other and as far as he was aware, they shared everything.
Mr Sourlis stated that the deceased would always do the cooking and he would regularly show care and affection towards Ms Marr. They seemed to him to be a couple who cared for each other. The deceased told him that they had lived together long before they moved into his mother's house and late last year, they moved to a house that they rented together in Belmore.
Statement of Ina Mills
Ina Mills, the “sister in law” of Ms Marr, provided an unsigned and undated statement. She advised that she first met Ms Marr in 2019. Ms Marr was wearing an engagement ring. She first met the deceased in October 2020 and it was evident that he was in a relationship with Ms Marr.
Ms Mills confirmed that the deceased gave Ms Marr a car which was later sold. She also particularised various times when they visited or met up with her in 2020, 2021 and 2022.
Documents and photographs
The applicant has included copies of the deceased’s death certificate, will (leaving the entire estate to the first respondent) and various correspondence and emails passing between the parties. There is nothing contentious in these documents.
The second respondent relies on a copy of the lease of premises in Belmore. The lease was in the names of Ms Marr and the deceased and was signed by them. The trust account receipts for the bond and rent was in joint names.
There are a series of photographs on pages 47 and 48 of the second respondent’s Reply. These are described in the index as being photos of the deceased and Ms Marr. They are not referred to in Ms Marr’s statement and it is unclear when they were taken.
Ms Marr’s bank statements for the period 21 May 2021 to 28 November 2021, and 28 October 2022 to 30 May 2023 show deposits from the deceased on 29 October 2022 and 18 November 2022 for bills, and transfers to the deceased on numerous occasions in November and December 2022 for lunch, a mechanic, shopping, petrol and food.
On 7 December 2022, the deceased transferred $50 to Ms Marr for “loan repay”. Transfers of $200 for “loan repay” and for rent of $620 on 13 January 2023 and $200 was transferred for “loan repay” on 15 January 2023 were made by the deceased. Ms Marr paid the bond for the premises at Belmore and there are a number on entries that show Ms Marr paid the rent.
It is unclear whether Ms Marr has accounts as might be inferred by the transfers on 18 November 2022, multiple fast transfers from another account in December 2022, reference to a St George Bank account and a text referring to a Westpac card. Of course, I do not have the benefit of copies of the deceased’s bank records.
There are a series of screen shots of texts that passed between the deceased and Ms Marr in January 2023 that were suggestive of a domestic situation. There was references to lost car keys, flooding in the back yard, playing golf, grocery shopping, issues with cats, asking what Ms Marr wanted for dinner, cooking a meal, request to bring in the washing, boxing on Kayo and Netflix, “I love you too”, “heading home from work”, “at work babe”, offers to transfer money, deposits into the deceased’s bank account, “babe, I’m going out with Theo..”.
On 7 January 2023, Ms Marr indicated that she was paying $600 for rent, and the deceased responded “Ok. I’ll pay the rent my next 3 pays”.
On 16 January 2023 at 7.43am, Ms Marr asked the deceased whether he was in trouble for being late to work. There was no reply. At 4.46am the following day, she texted “I love you babe”.
An undated page of writing at page 91 of the second respondent’s Reply is identified in the index as a diary entry made by the deceased. The deceased said that he felt great. He was “in love with a beautiful lady, my princess Samantha”. Later when referring to his bad health, he noted “Samantha is worried and I hate seeing that”.
SUBMISSIONS
No submissions were made by the parties. I had given a preliminary view at the initial preliminary conference and the proposed appointment was more in keeping with my comments. I am satisfied that the parties have considered their respective rights.
REASONS
Dependency
In TNT Group 4 Pty Limited v Halioris (1987) 3 NSWCCR 10; 8 NSWLR 486, McHugh JA stated (at [489]):
“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.”
Further, in Kaur v Thales Underwater Systems Pty Ltd [2011] NSWCCPD 6 (at [126] and [148]), President Keating stated (at [126]):
“126. 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; ‘past events and future probabilities’ have to be considered. (Aafjes v Kearney 180 CLR 199; [1976] HCA 5; 8 ALR 455; 50 ALJR 454, 456, 457 and 459 (Aafjes)).”
According to the first respondent, she was dependent on the deceased for emotional and financial support. They were in regular contact up until the time of his death. He provided financial and emotional support when she was a child and when she was a young adult. He gave her a car, assisted with her university fees and books, paid a bond on her Canberra apartment, and gave her $10,000 before he became bankrupt. He did not provide financial support thereafter. I was informed that she has been in employment at all relevant times.
The first respondent stated that the deceased provided extensive support throughout 2022 when she was renovating her apartment that included managing the project and some hands on work. She did not indicate in her statement that she expected that this support would have been provided in the future but given the loving nature of the father and daughter relationship, I would expect that he would have continued to support his only daughter had he not died. In the circumstances, I accept that the first respondent was partly dependent on the deceased at the date of his death.
Although the first respondent was told by her father that he wanted Ms Marr to move out of his mother’s house, and in January 2023, he said that he had kicked her out, this is inconsistent with Ms Marr’s statement and the documentary evidence and statements that support an on-going relationship.
Whilst she claimed that her mother was the only other dependant, it is apparent that the deceased kept his relationship with the second respondent confidential. The third respondent described the deceased as a Christian with a “strong sense of family and responsibility” and that “he had a strong sense of who he was, moral conviction and commitment to family”, so it is understandable that he chose to keep his relationship with Ms Marr from his wife and daughter.
The situation with respect to the third respondent is somewhat similar to that of her daughter. She was a housewife and dependent on the deceased until she returned to work as a high school teacher when her daughter was about five years old. Their marriage suffered as a result of the deceased’s ill health and bankruptcy in 2018, and she subsequently took over the mortgage on the marital home. She believed that he would have assisted her to pay off her mortgage as he had promised and that he would look after her and their daughter.
The dependency at the time of his death was largely emotional as they remained close, but he also helped around the house with maintenance and gardening. I was informed that she has been in employment at all relevant times. Therefore, I am satisfied that the third respondent was partly dependent on the deceased at the date of his death.
Her understanding about the relationship between the deceased and Ms Marr mirrored that of her daughter. I have already addressed this above. Her feeling that her husband would eventually come back to her is inconsistent with the evidence relied upon by the second respondent.
There is compelling evidence that supports Ms Marr’s contention that she was in a loving relationship with the deceased and that she was in fact engaged to be married. Obviously, if this was going to happen, the deceased would have had to divorce the third respondent.
The statements of Mr Becker, Ms Dionisopoulos, Ms Mills, Mr Topperwien, Mr McCann, and Mr Sourlis corroborate what the second respondent said in her statement. The texts show conversations that one would normally associate with partners, as do the photographs, and the lease documents and bank records is also evidence that tends to confirm a relationship between the deceased and Ms Marr. Although the second respondent was in employment, she seemed to be both financially and emotionally dependent. In the circumstances, I accept that the second respondent was partly dependent on the deceased at the date of his death.
Accordingly, I am satisfied that the first, second and third respondents were partly dependant on the deceased and that there were no other persons wholly or partly dependent on him at the date of death.
Apportionment
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,[1] Egan A-CCJ stated:
“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.”[2]
[1] (1996) 15 NSWCCR 32 (Wratten).
[2] Wratten, [34].
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 and this was confirmed by counsel during submissions.
The first and third respondents’ circumstances are somewhat similar apart from their ages. Clearly the first respondent would have a greater expectation than her mother.
Having regard to the totality of the evidence, the appointment suggested by the parties is in my view appropriate and properly reflects their respective expectations and entitlements.
Accordingly the lump sum benefit of $871,200 will be apportioned as follows:
(a) Elizabeth Johanna Drakopoulos - $290,400 (one third);
(b) Samantha Marr - $290,400 (one third), and
(c) Effie Drakopoulos - $290,400 (one third).
Interest
The parties have reached agreement as to the rate of 6.1 % per annum and the period during which interest is payable as follows:
(a) Elizabeth Johanna Drakopoulos: 28/7/23 to 27/10/23 in the sum of $4,465.
(b) Samantha Marr: 19/9/23 to 27/10/23 in the sum of $1,892.77.
(c) Effie Drakopoulos: 19/9/23 to 27/10/23 in the sum of $1,892.77.
FINDINGS
The name of the third respondent is amended to Effie Drakopoulos.
The deceased worker, Angelo Drakopoulos, died on 16 January 2023 as a result of injuries sustained during the course of his employment with the applicant.
Elizabeth Johanna Drakopoulos, Samantha Marr and Effie Drakopoulos were partly dependent for support upon the deceased at the date of death.
The deceased had no other persons dependent on him.
The applicant is liable for the payment of lump sum compensation and interest.
ORDERS
The lump sum compensation of $871,200 payable pursuant to s 25(1)(a) of the 1987 Act is to be apportioned in accordance with s 29 of the of the 1987 Act as follows:
(a) Elizabeth Johanna Drakopoulos – $290,400 (one third);
(b) Samantha Marr – $290,400 (one third), and
(c) Effie Drakopoulos – $290,400 (one third);
The applicant to pay interest on the lump sum of $871,200 at the rate of 6.1% per annum pursuant to s 109 of the 1998 Act as follows:
(a) Elizabeth Johanna Drakopoulos: 28/7/23 to 27/10/23 in the sum of $4,465.
(b) Samantha Marr: 19/9/23 to 27/10/23 in the sum of $1,892.77.
(c) Effie Drakopoulos: 19/9/23 to 27/10/23 in the sum of $1,892.77.
The applicant to pay the first respondent $294,865 pursuant to s 85A(1)(a) of the 1987 Act and s 109 of the 1998 Act.
The applicant to pay the second respondent $292,292.77 pursuant to s 85A(1)(a) of the 1987 Act and s 109 of the 1998 Act.
The applicant to pay the third respondent $292,292.77 pursuant to s 85A(1)(a) of the 1987 Act and s 109 of the 1998 Act.
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