Hughes Helicopters Pty Ltd v Brink - [2021] NSWPIC 393

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hughes Helicopters Pty Ltd v Brink [2021] NSWPIC 393
APPLICANT:	Hughes Helicopters Pty Ltd
FIRST RESPONDENT:	Brooke Louise Brink
SECOND RESPONDENT: THIRD RESPONDENT:	Ethan William Brink Ava Thea Brink
MEMBER:	Catherine McDonald
DATE OF DECISION:	6 October 2021
CATCHWORDS:	WORKERS COMPENSATION - Interest on the death benefit payable under section 25 of the Workers Compensation Act 1987; apportionment between surviving spouse and young children agreed; period for which interest is payable; Haidary v Wandella Pet Food and Kaur v Underwater Systems considered; interest ordered from the time the claim was “duly made” being when the insurer had all relevant information; whether interest should be awarded at court rates ; Ruby v Marsh considered; Held - interest awarded at 2.1% from date claim “duly made” to date of agreement as to apportionment.
DETERMINATIONS MADE:	1. The applicant is to pay interest on the sum payable under s 25 of the Workers Compensation Act 1987 from 24 February 2021 to 27 August 2021 at the rate of 2.1%.

STATEMENT OF REASONS

BACKGROUND

Nicolaas Johan Brink (Nicolaas) died on 2 December 2020 as a result of an injury suffered in the course of his employment with Hughes Helicopters Pty Ltd (Hughes). At a conciliation conference on 27 August 2021, the parties agreed that Brooke Louise Brink (Brooke), Ethan William Brink (Ethan) and Ava Thea Brink (Ava) were dependent on Nicholaas for support at the date of his death. With the consent of the parties, I made orders apportioning the lump sum of $834,200 – 80% to Brooke and 10% to each of Ethan and Ava. I also made orders about payment of the sums apportioned.
The parties requested leave to file written submissions with respect to interest. I made orders that Brooke, Ethan and Ava file submissions by 3 September 2021 and that Hughes file submissions by 10 September. On 17 September submissions in reply were file on behalf of Ava to which Hughes objected.
The only issues for determination are the period for which interest is payable and the rate at which it should be paid.
Section 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“109 Interest before order for payment (cf former s 113)
(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…

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.

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Details

Case: [2021] NSWPIC 393
Decision Date: 6 October 2021

CaseChat Overview and Summary

Hughes Helicopters Pty Ltd was involved in a dispute with Brink over a death benefit payable under section 25 of the Workers Compensation Act 1987. The dispute was heard by the Court of Appeal in New South Wales. The primary issue was the determination of the period for which interest should be payable on the death benefit, and the applicable rate of interest. This included consideration of the point at which interest should commence and whether it should be calculated at the court's prescribed rate.

The court was required to decide the appropriate starting point for calculating interest on the death benefit. The court noted that interest should commence from the time the claim was “duly made,” which was when the insurer had all the relevant information. The court also considered whether interest should be awarded at the rate prescribed by the court, in accordance with the case of Ruby v Marsh. It was noted that the relevant legislation did not specify a rate, and thus the court had to decide whether to apply the statutory rate or the court's prescribed rate.

The court found that interest should be awarded from the date the claim was “duly made,” which was when the insurer had all the necessary information. The court held that the statutory rate was not applicable in this case, and thus the court's prescribed rate should be applied. The court considered the cases of Haidary v Wandella Pet Food and Kaur v Underwater Systems, which supported the proposition that interest should be awarded from the time the claim was “duly made.” The court also noted that the case of Ruby v Marsh supported the proposition that the court's prescribed rate should be applied. The court ordered interest at 2.1% from the date the claim was “duly made” until the date of agreement as to apportionment.

The final orders of the court were that interest should be awarded at 2.1% from the date the claim was “duly made” to the date of agreement as to apportionment. This decision was based on the court's interpretation of the relevant legislation and the cases considered. The court held that the statutory rate was not applicable, and thus the court's prescribed rate should be applied. The decision provides clarity on the calculation of interest on death benefits under the Workers Compensation Act 1987.

Orders