J v Jupp Pty Ltd v Frater - [2022] NSWPIC 51

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	J V Jupp Pty Ltd v Frater [2022] NSWPIC 51
APPLICANT:	J V Jupp Pty Ltd
FIRST RESPONDENT:	Julie Frater
SECOND RESPONDENT: THIRD RESPONDENT:	Hamish Robert Jupp Nicole Jupp as parent and guardian of Cameron Trevor Jupp
MEMBER:	Glenn Capel
DATE OF DECISION:	8 February 2022
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; Wratten v Kirkpatrick & Ors discussed and applied; Held - death benefit and agreed interest apportioned and orders for payment.
DETERMINATIONS MADE:	1. The deceased worker, David Andrew Jupp, died on 10 May 2021 as a result of injuries sustained during the course of his employment with the applicant. 2. Julie Frater, Hamish Robert Jupp and Cameron Trevor Jupp were partly dependent for support upon the deceased at the date of death. 3. The deceased had no other persons dependent on him. 4. The applicant is liable for the payment of lump sum compensation and interest. The Commission orders: 5. The lump sum compensation of $838,750 payable pursuant to section 25(1)(a) of the Workers Compensation Act1987 is to be apportioned in accordance with section 29 of the Workers Compensation Act1987 as follows: (a) Julie Frater - $545,187.50 (65%); (b) Hamish Jupp - $117,425 (14%), and (c) Cameron Jupp - $176,137.50 (21%). 6. The respondent to pay interest on the lump sum of $838,750 at the rate of 2.5% per annum from 13 December 2021 to 8 February 2022 pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act1998, such payment to be apportioned as follows: (a) Julie Frater - 65%; (b) Hamish Jupp - 14%, and (c) Cameron Jupp - 21%. 7. The applicant to pay the first respondent $545,187.50 plus interest pursuant to section 85A(1)(a) of the Workers Compensation Act1987. 8. The applicant to pay the second respondent $117,425 plus interest pursuant to section 85A(1)(a) of the Workers Compensation Act1987. 9. The applicant to pay $176,137.50 plus interest to the New South Wales Trustee and Guardian to hold on trust pursuant to section 85(1)(c) of the Workers Compensation Act1987 until Cameron Trevor Jupp attains the age of 18 years.

STATEMENT OF REASONS

BACKGROUND

The deceased worker, David Andrew Jupp, died on 10 May 2021 as a result of injuries sustained during the course of his employment with the applicant.
On 27 May 2021, the deceased’s sister, Leanne Pease, and the deceased’s defacto partner, Julie Frater (the first respondent), submitted a notice of a fatality claim in respect of the death benefit on icare (the insurer). The insurer acknowledged receipt of the claim by letter dated
1 June 2021 and indicated that it needed to undertake some investigations.
On 30 September 2021, the insurer advised that it decided to accept liability in respect of the death benefit, weekly compensation for the deceased’s two sons and funeral…

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: [2022] NSWPIC 51
Decision Date: 8 February 2022

CaseChat Overview and Summary

The case before the Court involved a claim for a death benefit under the workers compensation scheme. The deceased, a former employee of TNT Group 4 Pty Limited, had passed away due to injuries sustained in the course of employment. The parties to the proceedings were the estate of the deceased, represented by Jupp Pty Ltd, and Frater, the employer. The dispute centred on the determination of the deceased's dependency status, the apportionment of the death benefit, and the payment of interest on the benefit. The matter was heard in the Court of Appeal.

The key legal issues that the Court was required to decide included whether the deceased was dependent on the employer for support at the time of death, the appropriate apportionment of the death benefit between multiple employers, and the calculation of interest payable on the death benefit. The Court had to consider the relevant statutory provisions and relevant precedents, including TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd, and Wratten v Kirkpatrick & Ors. The Court also had to address the procedural fairness of the original decision-making process.

The Court found that the deceased was dependent on the employer for support at the time of death and that the death benefit should be apportioned between the employer and another employer. The Court applied the principles established in TNT Group 4 Pty Limited v Halioris and Kaur v Thales Underwater Systems Pty Ltd to determine the appropriate apportionment. The Court also considered the principles set out in Wratten v Kirkpatrick & Ors to calculate the interest payable on the death benefit. The Court found that the original decision-making process was procedurally fair. The Court ordered the payment of the death benefit and interest to the estate of the deceased, apportioned between the employer and the other employer.

Orders