J v Jupp Pty Ltd v Frater
[2022] NSWPIC 51
•8 February 2022
| 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 expenses, subject to a determination of dependency and apportionment.
On 10 November 2021, the applicant’s solicitor requested copies of the birth certificates of the deceased’s sons and sought further particulars.
The applicant employer filed an Application in Respect of Death of Worker (the Application) in the Personal Injury Commission (the Commission) on 19 November 2021, seeking the death benefit of $838,750 and apportionment thereof in accordance with ss 25(1)(a) and 29 of the Workers Compensation Act 1987 (the 1987 Act), and orders authorising payment of the lump sum pursuant to ss 85 and 85A(1)(a) of the 1987 Act. Hamish Robert Jupp is the second respondent, and Nicole Louise Jupp as parent and guardian of Cameron Trevor Jupp is the third respondent.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. The parties were advised of the intention to determine the dispute without holding a conciliation conference or arbitration hearing.
At the telephone conference on 13 January 2022, I was informed that funeral expenses had been paid, weekly compensation was being paid in respect of the deceased’s two sons, and a claim for interest had been made.
The parties reached agreement regarding the claim for interest, with the applicant employer agreeing to pay interest on the death benefit at the rate of 2.5% from 13 December 2021 to the date of this determination.
After some protracted discussions, I was informed that the parties had agreed to a proposed apportionment as follows:
(a) Julie Frater - $545,187.50 (65%);
(b) Hamish Jupp - $117,425 (14%), and
(c) Cameron Jupp - $176,137.50 (21%).
I directed the respondents file and serve written submissions by 22 January 2022 and any submissions in reply by 25 January 2022. The parties complied with this direction.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether there were any persons wholly or partially dependent on the deceased – s 25 of the 1987 Act;
(b) apportionment of the lump sum of $838,750 payable – s 29 of the 1987 Act, and
(c) orders in relation to payment of the compensation and interest – ss 85(1)(c) and 85A(1)(a) of the 1987 Act.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) Application and attached documents;
(b) first respondent’s Reply with attachments;
(c) second respondent’s Reply with attachments, and
(d) third respondent’s reply with attachments.
Oral evidence
The parties did not seek leave to adduce oral evidence or cross examine any witnesses.
REVIEW OF EVIDENCE
Given the discreet nature of the matters in issue, I will focus my review on the documents that concern dependency and apportionment.
Statement of Julie Frater
Julie Frater provided a statement on 3 December 2021. She confirmed that she started a relationship with the deceased in August 2017. They lived apart, but the deceased would stay over and help with repairs and maintenance on her property, which she still owned.
In May 2020, after she was made redundant from her job, she obtained employment near Newcastle, and she moved in with the deceased on the family property. They shared a bank account and health insurance. She has been employed as a casual contractor by Chandler McLeod since March 2021.
Ms Frater stated that the deceased had two sons from his former marriage. Hamish is now 18 years old. He did not complete his HSC and was undertaking some voluntary work at a smash repair business. Cameron is in year 9 and has no thoughts about his future. They both reside with their mother, Nicole Jupp, who the deceased divorced in 2013. The deceased paid her about $450,000 as part of the divorce settlement and child support for the boys which was approximately $800 per month. She was no aware of any other payments.
Ms Frater stated that the deceased’s sons would stay with them some Thursday nights and every second weekend, and they still visit her. She spent her annual leave and holiday breaks with the deceased, even if they stayed and worked on the property.
Ms Frater stated that the deceased paid for all household expenses, including the cost of utilities, groceries, internet, telephone, restaurants, accommodation, concerts, and private health insurance. These were now her responsibility. He did not pay any expenses associated with her property apart from building materials and supplies. The deceased often spoke about marriage, but he was waiting for the perfect setting and location to ask her. They had agreed on a venue in Pokolbin.
Ms Frater stated that they were hardly apart, and she helped him various household and maintenance tasks on the family property. They went hunting, target shooting and motor bike riding on the property together. They also went on regular trips together.
Ms Frater stated that the deceased made a will in 2016 and left his estate to his sons. She felt that he had not turned his attention to their relationship. She did not intend to contest the will. She has a number of health issues and is being treated with medication for Graves' Disease. She has also suffered from depression since her partner’s death. His family paid for his funeral and have been reimbursed for by icare. His sons will also be paid a weekly benefit.
Statutory declaration of Hamish Jupp
Hamish Jupp provided a statutory declaration on 10 December 2021. He confirmed that he had completed assessments in years 11 and 12 so he could obtain a Certificate of Attainment, but he did not sit the final HSC exams. He was diagnosed with mild autism when he was in primary school, but tests in 2020 showed that his condition had improved. He does not require any treatment.
Mr Jupp stated that his parents bought him a car, and his father had paid for petrol and its upkeep. Since February 2021 he had been doing work experience one day a week that involved washing cars for a smash repair business. He was not paid for this. He hopes that he will be offered a paid position as an apprentice spray painter in 2022.
Mr Jupp stated that he enjoyed life on the family property and his father taught him about farming and earthmoving. He rode a motorbike that his father bought for him and he did mustering work with his father. He lived with his mother and more recently spent more time at his father’s house. He felt loved and well supported by both his parents. He went on holidays with his father, and they did various farming tasks together.
Mr Jupp stated that his mother works part time as a nurse at a veterinary clinic in Maitland, and she received maintenance payments of about $730 per month from his father, which she put towards the cost of groceries and general living expenses. His father also paid for extra items such as clothes, shoes and medical expenses.
Mr Jupp stated that his father paid his school fees and he expected that his father would have paid for his TAFE fees if he secured an apprenticeship, together with his tool, car and general living expenses. He had relied on his mother for financial support since his father’s death.
Mr Jupp stated that he was coping with the loss of his father, and he missed him. He had an expectation that if he needed something financially, his father would have assisted. He always believed that he would be connected to the farm and the property, like his father and other relatives.
Statutory declaration of Nicole Jupp
Nicole Jupp provided a statutory declaration on 10 December 2021. She advised that she married the deceased in 2000, and they lived on the family farm. They had two sons, Hamish and Cameron, and they separated in 2013. Since that time, she had not been financially dependent on the deceased apart from maintenance payments of $730 per month for her sons. She did not intend to make a claim on the death benefit.
Ms Jupp stated that the third respondent was in year 9. He was not a particularly keen student and had tutoring every week. Part of these fees came from the maintenance payments, and now the deceased’s parents were assisting. His physical health was good, and he had no special medication requirements. He had ceased many of his favoured activities since his father had died.
Ms Jupp stated that her son had a tail bike that his father purchased for him for $13,500. The deceased helped his sons as any father would and he would assist with one off payments. He paid for the second respondent’s car that cost $4,000.
Ms Jupp indicated that the third respondent had expressed an interest in becoming a diesel mechanic, which involves attending a trade college for two years at a cost of around $4,000, and then he would seek an apprenticeship. He would need to stay at home if this occurred. She believed that the deceased would have assisted with these expenses, the purchase of a car and guaranteeing or assisting with loans.
Documents
The death certificate and will of the deceased, Grant of Probate, the Police report and the birth certificates of the second and third respondents are in evidence. The first respondent has included copies of her payslips, bank statements, birthday cards, texts, medical records and various accounts for household expenses. These are consistent with the statements.
Trevor Jupp, the father of the deceased, Heather Jupp, the mother of the deceased, and Leanne Pease, the deceased’s sister, provided statutory declarations on 2 December 2021. They advised that they were not dependent on the deceased and they did not intend to make a claim for the death benefit.
FISRT RESPONDENT’S SUBMISSIONS
The first respondent’s solicitor, Mr Watson, submits that it was agreed that the respondents were partially dependent upon the deceased at the time of his death. They were all financially and emotionally dependent on the deceased. It was also agreed there were no other dependants of the deceased.
Mr Watson submits that at the time of the deceased’s death, the first respondent resided with him on the family property. He paid for household expenses, provided a motor vehicle and its needs for the first respondent and he paid for the electricity, telephone and internet. He assisted with payments on her own property, and he paid for various travel, accommodation and recreational expenses. The evidence shows that they intended to marry, and the deceased wanted her to cease work.
Mr Watson submits that the deceased was employed in the family business, and the first respondent had the reasonable expectation that had she given up work, the deceased would have likely supported her fully financially, physically and emotionally for their mutual lifetimes. She was only employed fulltime as a casual through a labour hire agency, and the nature of this employment was uncertain. She has a number of health issues, and the deceased left his estate to his sons.
Mr Watson submits that it is acknowledged that the deceased would have continued to provide regular financial support to the third respondent until his majority, as well as ongoing intermittent financial support and physical and emotional support for his sons. This support would be less than that provided to the first respondent.
Mr Watson submits that the apportionment agreed to by the parties reflects these matters and represents an approximate division of the lump sum, and is appropriate in the circumstances:
(a) Julie Frater - $545,187.50 (65%);
(b) Hamish Jupp - $117,425 (14%), and
(c) Cameron Jupp - $176,137.50 (21%).
Mr Watson submits that the applicant has agreed to pay interest in respect of the lump sum payable at a rate of 2.5% from 13 December 2021 and that leave has been granted by the Commission to include this claim for interest.
SECOND RESPONDENT’S SUBMISSIONS
The second respondent’s solicitor, Mr Kasturi, submits that the second respondent had a close relationship with the deceased prior to his death. He continues to undertake work experience and hopes to obtain employment. He would have continued to require ongoing financial and emotional support from the deceased into his early adult years.
Mr Kasturi submits that the second respondent accepts that the first respondent was in a relationship with the deceased and would have remained dependent on the deceased to a greater extent, particularly taking into consideration her health issues. He also accepts that his younger brother was dependent on the deceased and would have remained dependent on the deceased for longer than him.
Mr Kasturi submits that the apportionment agreed to during teleconference is appropriate, and the applicant employer has agreed to pay interest at a rate of 2.5% from 13 December 2021 to the date of this determination.
THIRD RESPONDENT’S SUBMISSIONS
The third respondent’s solicitor, Mr McKessar, submits that all of the respondents were partly dependent upon the deceased, and there were no other dependants at the time of death.
Mr McKessar submits that the applicant would have had an expectation of dependency until the time that the deceased would have turned 67 years old, and most likely retired, a period of 14 years and 9 months. The third respondent still receives weekly compensation. The sons would have been dependent until they each turned 21 years of age, even though they might not pursue tertiary education. Both sons received a benefit according to the deceased’s will.
Mr McKessar submits that applicant’s submission of an apportionment to her of 70% of the death benefit in the sum of $585,000 is excessive and that 60% would be more reasonable. On a strictly mathematical basis, such an apportionment would be as follows:
(a) Julie Frater - $504,088.75;
(b) Hamish Jupp - $111,553.75, and
(c) Cameron Jupp - $223,107.50.
Mr McKessar submits that $545,000 presents a reasonable mid-point to avoid a contested hearing with its attendant uncertainty and potential effect on family relations.
Mr McKessar submits that there is merit in departing from the strict mathematical apportionment in respect of the deceased’s sons, given the general notion of parity between the sons. He submits that the third respondent is younger and should receive a greater proportion, and a 60%/40% split up seems appropriate. Whilst Ms Jupp had suggested a three way split between the dependants, such an outcome would be likely at a hearing, and the third respondent could do worse than the recommended apportionment.
REASONS
Dependency
It was confirmed in Warilla Timber and Hardware Pty Ltd v Newton[1], Albury Real Estate Pty Ltd v Rouseand anor[2] and in Richardson that the term “support” in s 25 of the 1987 Act is not limited to financial support and encompasses other multifactorial aspects including assistance with day-to-day activities and emotional support.
[1] (1995) 11 NSWCCR 546, [554] to [555].
[2] [2006] NSWWCCPD 139, [45] to [50].
In TNT Group 4 Pty Limited v Halioris[3], McHugh JA stated:
“Dependency is a question of fact: Potts v Niddre & Benhar Coal Co Ltd [1913] AC 531 at 539, 542; Aafjes v Kearney (1976) 50 ALJR 454 at 456, 457 and 459. It is concerned with actual and not theoretical support. A person claiming dependency need not be in actual receipt of support at the date of death. It is enough that, as at that date, he or she had a reasonable expectation of support in the future. Dependency may exist at the date of death although actual support cannot or is unlikely to occur until a future time.”[4]
[3] (1987) 3 NSWCCR 10; 8 NSWLR 486 (Halioris).
[4] Halioris, [489].
Further, in Kaur v Thales Underwater Systems Pty Ltd[5], President Keating stated:
“The question whether there is in fact dependence or reliance at the date of death is not to be answered by looking only to the circumstances as they existed at that date;”[6]
and
“‘past events and future probabilities’ have to be considered. (Aafjes v Kearney 180
CLR 199; ster; 8 ALR 455; 50 ALJR 454, 456, 457 and 459 (Aafjes)).”[7]
[5] [2011] NSWWCCPD 6, [139] (Kaur).
[6] Kaur, [126].
[7] Kaur, [148].
Further, I am satisfied there were no other persons wholly or partly dependent on the deceased at the date of death.
Apportionment
In order to apportion the lump sum, it is necessary to review all of the relevant facts disclosed in the evidence. In Wratten v Kirkpatrick[8], Egan A-CCJ stated:
“The exercise of power to determine the correct amount to be apportioned to each dependant requires an examination of all relevant facts including the extent of past dependence, the anticipated future dependence, the ages of the dependants, their health, special needs, lifestyle, etc.”[9]
[8] (1996) 15 NSWCCR 32 (Wratten).
[9] Wratten, [34].
Each case requires an examination of the individual facts as no two matters are identical.
I agree that the applicant should be entitled to the greatest proportion of the lump sum, having regard to her dependency, her age, and future needs. This must be weighed up with the dependency of each of the deceased’s sons.
It is always difficult to assess the future expectations of children, as any assessment is highly speculative. The second respondent has previously been diagnosed with mild autism, but he does not appear to be receiving treatment. Their ages are similar as are their respective needs and expectations.
The parties have obviously put some thought into reaching a preliminary agreement as to apportionment. Having regard to the evidence, I am satisfied that this represents a fair and appropriate apportionment of the death benefit. They have considered the first respondent’s age and needs which would outweigh those of the second and third respondents.
The difference between the proposed amounts for the second and third respondents is around $60,000. This would amount to about $15,000 per year based on their four year age difference. Such a yearly amount is not an unreasonable allowance in the circumstances. Therefore, I see no reason why I should apportion the benefit in a different fashion.
Accordingly, I apportion the lump sum payment of $838,750 pursuant to s 29 of the 1987 Act as follows:
(a) Julie Frater - $545,187.50 (65%);
(b) Hamish Jupp - $117,425 (14%), and
(c) Cameron Jupp - $176,137.50 (21%).
As Cameron is only 15 years old, his entitlement will need to be paid to the New South Wales Trustee and Guardian and will held on trust for him until he turns 18 years of age.
FINDINGS
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.
Julie Frater, Hamish Robert Jupp and Cameron Trevor Jupp were partly dependent for support upon the deceased at the date of death.
The deceased had no other persons dependent on him.
The applicant is liable for the payment of lump sum compensation and interest.
The lump sum compensation of $838,750 payable pursuant to s 25(1)(a) of the 1987 Act is to be apportioned in accordance with s 29 of the 1987 Act as follows:
(a) Julie Frater - $545,187.50 (65%);
(b) Hamish Jupp - $117,425 (14%), and
(c) Cameron Jupp - $176,137.50 (21%).
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 s 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%.
The applicant to pay the first respondent $545,187.50 plus interest pursuant to s 85A(1)(a) of the 1987 Act.
The applicant to pay the second respondent $117,425 plus interest pursuant to s 85A(1)(a) of the 1987 Act.
The applicant to pay $176,137.50 plus interest to the New South Wales Trustee and Guardian to hold on trust pursuant to s 85(1)(c) of the 1987 Act until Cameron Trevor Jupp attains the age of 18 years.
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