Hundy v Mackander Shearing Pty Ltd

[2021] NSWPIC 479

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Hundy v Mackander Shearing Pty Ltd [2021] NSWPIC 479

APPLICANT:

Tahlia Jade Hundy bnf Angela Usher-Palmer

RESPONDENT:

Mackander Shearing Pty Ltd

MEMBER:

Rachel Homan

DATE OF DECISION:

24 November 2021

CATCHWORDS:

WORKERS COMPENSATION - Claim for lump sum death benefit and weekly payments in respect of dependent child; liability accepted; identification of dependants who were wholly or partly dependent for support on the worker; applicant was the sole dependant; Held - orders for payment of the lump sum death benefit pursuant to section 85(1)(a) and weekly compensation pursuant to section 31(1)(a) of the Workers Compensation Act 1987.

DETERMINATIONS MADE:

1.     The deceased worker, Matthew Gerard John Hundy, died on 18 June 2019 as a result of injuries sustained in the course of employment with the respondent.

2.     Tahlia Jade Hundy was a dependant of the deceased worker who was partly dependent for support upon him at the date of his death.

3.     There were no other persons wholly or partly dependent for support upon the deceased worker at the date of his death.

4. The lump sum death benefit payable in accordance with s 25(1)(a) of the Workers Compensation Act 1987 is $810,050.

5. The applicant is a dependent child of the deceased worker under the age of 16 years for the purposes of s 25(1)(b)(i) of the Workers Compensation Act 1987.

ORDERS MADE:

1. The Application in Respect of Death of Worker is amended to include a claim for interest on the lump sum death benefit pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998.

2. Award for the respondent with respect to the claim for interest on the lump sum death benefit pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998.

3. The respondent to pay the lump sum death benefit of $810,050 to the NSW Trustee to be held on trust for the benefit of Tahlia Jade Hundy until she attains the age of 18 years, pursuant to s 85(1)(a) of the Workers Compensation Act 1987.

4. The respondent to pay weekly compensation in resect of the applicant from 18 June 2019 to date and continuing pursuant to s 25(1)(b)(i), commencing at the rate of $145 per week, periodically adjusted, in accordance with s 31(1)(a) the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

1. Mr Matthew Gerard John Hundy (the deceased worker) was employed by Mackander Shearing Pty Ltd (the respondent) when he died in a fatal motor vehicle accident on 18 June 2019. The deceased worker was 28 years old at the time of his death.

2. A claim for compensation in respect of the deceased worker’s death was made on 16 March 2020 on behalf of Miss Tahlia Jade Hundy (the applicant) by her mother, Ms Angela Usher-Palmer. The applicant is the deceased worker’s daughter and is currently 7 years old.

1. Liability to pay compensation was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 27 August 2020 on the basis that the deceased worker’s death did not result from an “injury” for the purposes of ss 25 and 26 of the 1998 Act. That decision was maintained following an internal review on 13 October 2020.

2. An Application in Respect of Death of Worker was lodged in the Commission on behalf of the applicant on 23 September 2021, seeking orders for payment of the lump sum death benefit payable under s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act) and weekly compensation under s 25(1)(b) of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

1. The parties appeared for conciliation conference and arbitration hearing on 23 November 2021. The applicant was represented by Mr Alexander Vrisakis, legal practitioner. The respondent was represented by Mr Andrew Parker, of counsel, instructed by Ms Pradesha Thomas. Representatives from the insurer were also present.

2. Following a period of conciliation, the parties informed me that they had reached agreement that the respondent would pay the compensation sought in return for an award for the respondent in respect of a claim for interest on the lump sum death benefit pursuant to s 109 of the 1998 Act.

3. It was agreed that the applicable death benefit was $810,050. It was also agreed that weekly payments of compensation were payable from the date of death pursuant to s 25(1)(b)(i) commencing at the rate of $145, subject to periodic adjustment.

4. The parties also accepted that appropriate enquiries had been made and that the applicant was a dependant of the deceased worker who was dependent for support on the deceased worker at the time of his death and that there were no other persons dependent.

5. The applicant requested that payment of the lump sum death benefit be made to the NSW Trustee for the benefit of the applicant in accordance with s 85(1)(a) of the 1987 Act.

ISSUES FOR DETERMINATION

1. As a result of the parties’ agreement on the issue of liability, only the following matters require determination:

(a)    identification of any family members who were wholly or partly dependent for support on the deceased worker in accordance with s 4 of the 1998 Act, and

(b)    orders in relation to payment of the compensation.

EVIDENCE

Documentary evidence

1. The following documents were in evidence before the Commission and considered in making this determination:

(a)    Application in Respect of Death of Worker (the Application) and attached documents, and

(b)    Reply and attached documents.

1. The evidence before me includes the New South Wales birth certificate of the applicant and the NSW death certificate of the deceased worker. These documents confirm that the applicant is the deceased worker’s child, born in 2014. The deceased worker was not married at the time of his death and had no other children. The deceased worker’s parents were identified as Ms Kathleen Shipp and Mr Matthew John Hundy.

2. Attached to the Application was correspondence from the applicant’s solicitors to Ms Shipp and Mr Hundy advising them that a claim for compensation in respect of the deceased worker’s death had been made on behalf of the applicant. They were advised that proceedings would be commenced in the Commission and were requested to acknowledge whether they wished to make a claim. Ms Shipp and Mr Hundy were advised of their ability to obtain free legal advice provided by the Independent Review Office in regard to this matter.

3. Both Ms Shipp and Mr Hundy have provided written notice that they do not wish to claim dependency for the purposes of the compensation claim.

FINDINGS AND REASONS

Dependants

1. The term, ‘dependants’ is defined in s 4 of the 1998 Act as

   “the members of the worker’s family as were wholly or in part dependent for support on the worker at the time of the worker’s death, or would but for the incapacity due to the injury have been so dependent”.

2. I am satisfied on the uncontradicted evidence before me that the applicant in these proceedings was the deceased worker’s dependent child.

3. I am further satisfied that that appropriate enquiries have been made and there is no evidence of any other person, apart from the family members identified in the evidence in these proceedings, who may have been dependent on the deceased worker at the time of his death.

4. The deceased worker’s mother, Ms Shipp and his father, Mr Hundy, have each provided written evidence that they did not intend to pursue any claim for a portion of the lump sum death benefit after being informed of their ability to make a claim and obtain independent legal advice. The deceased worker was not married at the time of his death and had no other children.

5. I am satisfied for the purposes of s 29(1A) of the 1987 Act that the deceased worker left only one dependant. The whole of the lump sum death benefit is to be paid to that one dependant, the applicant.

6. Given the applicant’s age, it is appropriate that payment of the lump sum death benefit be made to the NSW Trustee for the applicant’s benefit pursuant to s 85(1)(a) of the 1987 Act.

7. As the applicant is a dependent child of the deceased worker aged under 16 years, she will also be entitled to payments of weekly compensation at the statutory rate from the date of death and continuing pursuant to s 25(1)(b)(1) of the 1987 Act.