Herne and Herne v Colman - [2006] NSWWCCPD 83

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Herne and Herne v Colman [2006] NSWWCCPD 83
APPELLANT:  Stuart Harvey Herne and Karen Louise Herne t/as Herne’s Freight Services
RESPONDENT:  Sandra Colman
INSURER:Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC4231-04
DATE OF ARBITRATOR’S DECISION:          11 October 2004
DATE OF APPEAL DECISION:  11 May 2006
SUBJECT MATTER OF DECISION: Death benefit; applicant partially dependent on worker; whether vicissitudes or contingencies need to be taken into account and how; section 26 Workers Compensation Act 1987
PRESIDENTIAL MEMBER:  Acting Deputy President Lansdowne
HEARING:On the papers
REPRESENTATION:  Appellant:      Mulcahy Lawyers
Respondent:   Lee Sames Egan

ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator, dated 11 October 2004, is revoked and the following decision is made in its place:

(1) That Stuart Harvey Herne and Karen Louise Herne t/as Herne’s Freight Service (‘the Appellants’) pay Sandra Louise Colman (‘the Respondent’) the sum of $201,200 pursuant to section 26 of the Workers Compensation Act 1987.
(2) That this sum be paid to the Respondent and not to the Public Trustee.
(3) That the Appellants pay the Respondent’s costs of the proceedings before the Arbitrator as agreed or assessed.
2. No order as to the costs of the appeal.

BACKGROUND TO THE APPEAL

The original application to the Workers Compensation Commission (‘the Commission’) was filed by Mrs Sandra Colman in March 2004. Mrs Colman is the widow of Mr Matthew Colman, who was formerly employed by Mr and Mrs Herne as an interstate truck driver. Mr Colman, whom I will henceforth call ‘the Worker’, was killed in a single vehicle accident on 2 August 2003 while driving his truck for Mr and Mrs Herne, whom I will henceforth call ‘the Employers’ or ‘the Appellants’ as the context requires. Mrs Colman, whom I will henceforth call ‘the Applicant’ or ‘the Respondent’ as the context requires, applied for payment of compensation pursuant to section 26 of the Workers Compensation Act 1987 (‘the 1987 Act’) on the basis that she was partially dependent on the Worker. She sought payment of the maximum amount, being $282,150, on the basis that she was dependent to the extent of $250 per week on the Worker at the time of his death and he had an anticipated working life remaining of 34.5 years. The Employers were represented before the arbitrator who determined the application (‘the Arbitrator’) by the solicitors for their insurer, Allianz Australia Workers Compensation (NSW) Ltd (‘the Insurer’). The application was determined without oral hearing, on the basis of written submissions. The Insurer in its submissions disputed only the amount of compensation, not the liability of the Employers to pay compensation. The Insurer submitted that the appropriate award was in the range $36,975-$73,950. The Insurer arrived at this sum by assessing the Applicant’s level of dependency as between $50-$100 per week, which was then capitalised using an interest rate of 5%. The Insurer submitted that a further 15% should be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Herne and Herne v Colman

Details

AGLC: Herne and Herne v Colman [2006] NSWWCCPD 83
Case: [2006] NSWWCCPD 83
Decision Date: 11 May 2006

CaseChat Overview and Summary

Herne and Herne v Colman [2006] NSWWCCPD 83 was an appeal by employers against an award of compensation to the widow of a worker who had been killed in a work-related accident. The widow had been awarded the maximum amount of compensation available under the Workers Compensation Act 1987 for a partially dependent spouse. The employers appealed against the award, contending that the arbitrator had erred in failing to take into account contingencies that may have reduced the level of dependency, and in awarding the maximum amount of compensation when the widow was only partially dependent on the deceased worker. The appeal was determined on the papers before the arbitrator, who had also determined the matter on the papers. The widow was found to be the sole dependant of the worker and the amount of dependency was found to be $250 per week. It was determined that a deduction of 7.5% should be made for contingencies that may have reduced the dependency. The result was that the widow was awarded $201,200. The award was to be made directly to the widow, not to the Public Trustee. The employers were ordered to pay the widow's costs of the proceeding before the arbitrator. The appellants were not ordered to pay costs of the appeal.

Orders