J & G Pastoral Company Pty Ltd v O'Connell

[2023] NSWPIC 568

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

J & G Pastoral Company Pty Ltd v O'Connell & Ors [2023] NSWPIC 568

APPLICANT:

J & G Pastoral Company Pty Ltd

FIRST RESPONDENT:

Lance O’Connell

SECOND RESPONDENT:

Tanya Coster

THIRD RESPONDENT:

Rachele Staines

FOURTH RESPONDENT:

Hayley O’Connell

FIFTH RESPONDENT:

Riley O’Connell

SENIOR MEMBER:

Elizabeth Beilby

DATE OF DECISION:

24 October 2023

DATE OF AMENDMENT:

27 October 2023

CATCHWORDS:

WORKERS COMPENSATION - Workers Compensation Act 1987; application for lump sum death benefit; worker died whilst assisting with moving cattle; no dispute that the applicant was liable for payment of the lump sum death benefit pursuant to section 25(1)(a); at the time of death worker was unmarried with no dependent children; all named respondents indicated that they did not wish pursue a claim for dependency; no evidence that there was any other party who could be characterised as dependent upon the deceased as at the date of death; Held – orders made that the lump sum death benefit payable and agreed interest was to be paid directly to the estate of the deceased.

DETERMINATIONS MADE:

The Commission determines:

1.     The deceased worker, Clay William O’Connell, died on 19 January 2022, as a result of an injury arising out of or in the course of his employment with the applicant.

2.     All named respondents do not wish to be pursue a claim for dependency and seek an order that the lump sum benefit be paid directly to the Estate of Clay O’Connell.

3.     There were no other persons dependent, or who claims dependency, on the worker for support at the date of his death.

4.     The applicant is liable for payment of the lump sum death benefit pursuant to s 25 (1) (a) of the Workers Compensation Act 1987 in the amount of $849,300.

5.     The lump sum death benefit payable and any entitlement to interest is to be paid directly to the Estate of the late Clay William O’Connell.

6.     The applicant is to pay interest on the lump sum benefit (as agreed) in the sum of $1,873.59.

STATEMENT OF REASONS

BACKGROUND

1. On 19 January 2022 Mr Clay William O’Connell (the deceased) died whist assisting with moving cattle into a new feeding paddock.  The facts suggest that he fell from his horse and suffered fatal injuries.

2. J & G Pastoral Company Pty Ltd (the 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).

3. Mr O’Connell was unmarried at the time of his death and had no dependant children.

4. The only substantive issues for determination at the listed arbitration were the questions of dependency, apportionment of the death benefit and interest.

ISSUES FOR DETERMINATION

1. The parties agree that the following issues remain in dispute:

   (a)    dependency at the time of death;

   (b)    apportionment of the lump sum death benefit, and

   (c)    interest.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. The claim was listed in the Personal Injury Commission (Commission) for preliminary conference on 11 October 2023. The parties were able to agree to a proposed resolution of the matter at that time.

EVIDENCE

Documentary evidence

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

   (a)    Application to Resolve a Dispute and attached documents;

   (b)    Replies to the Application to Resolve a Dispute, and

   (c)    Late documents filed on 11 October 2023.

Dependency

1. 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”.

2. A reasonable expectation that the deceased would provide future support can satisfy the concept of dependency.[1]

   [1] TNT Group 4 Pty Ltd v Halioris (1987) 8 NSWLR 486 at [490].

3. At the listed telephone conference all respondents were legally represented.  I was advised that the respondents were in agreement that none of them wished to make submissions or to rely on any filed evidence concerning dependency. They were all in agreement that they wanted the lump sum benefit, together with any entitlement to interest, to be paid to the deceased’s Estate.

4. I therefore make orders as sought by the parties in relation to the proposed payment to the Estate.

Interest

1. A claim was made for interest on the lump sum benefit.

2. The parties were able to agree on the entitlement to interest and this is reflected in the orders.

Orders

1. The deceased worker, Clay William O’Connell, died on 19 January 2022, as a result of an injury arising out of or in the course of his employment with the applicant.

2. All named respondents do not wish to be pursue a claim for dependency and seek an order that the lump sum benefit be paid directly to the Estate of the Late Clay O’Connell.

3. There were no other persons dependent, or who claims dependency, on the worker for support at the date of his death.

4. The applicant is liable for payment of the lump sum death benefit pursuant to s 25 (1) (a) of the 1987 Act in the amount of $849,300.

5. The lump sum death benefit payable and any entitlement to interest is to be paid directly to the Estate of the late Clay William O’Connell.

6. The applicant is to pay interest on the lump sum benefit (as agreed) in the sum of $1,873.59.