Jackson v FBR Management Services Pty Ltd
[2023] NSWPIC 297
•23 June 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Jackson v FBR Management Services Pty Ltd & Ors [2023] NSWPIC 297 |
| APPLICANT: | Louise Jackson |
| FIRST RESPONDENT: | FBR Management Services Pty Limited |
| SECOND RESPONDENT: | Giselle Moore |
| THIRD RESPONDENT: | Alexander Moore |
| senior Member: | Elizabeth Beilby |
| DATE OF DECISION: | 23 June 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim in respect of lump sum death benefit; Held – orders made pursuant to section 29 regarding dependency. |
| determinations made: | |
The Commission determines:
I find that the applicant and the second and third respondents were wholly or partially dependent upon the deceased as at the date of his death on 22 May 2020.
There was no other person that was dependent upon the deceased as at the date of death.
The lump sum benefit payable in accordance with s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act) as at the date of death was $827,400.
The first respondent is to pay the lump sum benefit based upon the following (agreed) apportionment:
(a) $496,440 to the applicant (60%);
(b) $157,206 to the second respondent (19%), and
(c) $173,754 to the third respondent (21%).
The first respondent is to pay to the applicant, second and third respondents, pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998, interest on the respective lump sum benefits for the period from 8 December 2020 to 23 June 2023. The relevant rate of interest is 2% above the Reserve Bank of Australia’s cash rate (as adjusted).
Pursuant to s 85A of the 1987 Act, the sum apportioned in favour of the applicant is to be paid directly to her.
Pursuant to s 85(1) of the 1987 Act, the sums awarded in favour of the minor respondents (the second and third respondents) are to be paid to the New South Wales Trustee and Guardian.
The first respondent is to pay the New South Wales Trustee and Guardian its fees in accordance with clause 177 of the Workers Compensation Regulations 2016.
The first respondent is to reimburse paid funeral expenses pursuant to s26 of the 1987 Act upon provision of tax invoices and/or receipts.
STATEMENT OF REASONS
BACKGROUND
Dr Michael Moore (the deceased) died on 22 May 2020.
FBR Management Services Pty Limited (first respondent/employer) 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). Dr Moore was married to Louise Jackson, the first respondent, though at the time of death they had separated but were able to maintain a good relationship as both friends and parents.
Dr Moore was the father of Giselle Moore (the second respondent), born in 2008 and Alexander Moore (the third respondent), born in 2010.
ISSUES FOR DETERMINATION
The parties agreed that the following issues remain in dispute:
(a) dependency as at the date of death;
(b) apportionment of the lump sum death benefit;
(c) entitlement to interest, and
(d) and if so, from what date and at what rate.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
At the listed hearing, the parties were able to agree to a proposed resolution of the matter regarding dependency. The parties were unable to agree in relation to that calculation of any entitlement to interest, being both from what date entitlement would arise and at what rate.
By way of communication to the Personal Injury Commission (Commission), there was agreement that interest on the lump sum benefit is to be paid from the agreed date upon which the claim was ‘duly made’ on 8 December 2020 and at a rate in accordance with the reasons of Senior Member Haddock in McGrath v P.M. Electric Pty Ltd & Ors Ltd [2022] NSWPIC 263.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Replies dated 15 February 2023 and 20 February 2023 (x 2);
(c) Application to Admit Late Documents dated 10 March 2023, 16 March 2023, and 27 April 2023;
(d) submissions from the applicant dated 27 April 2023 and 8 May 2023, and
(e) submissions from the respondent dated 1 May 2023.
I will now deal with the issues in turn:
Dependency
A dependant 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”.
There was no evidence before me that there is any other person that wishes to be or could be described as dependent upon the deceased as at the date of death in either a full or partial capacity. I therefore find that there were no other dependants.
The applicant, second and third respondents agreed on a proposed apportionment of the lump sum benefit of $827,400 in the following proportion:
(a) Louise Jackson at 60%;
(b) Giselle Moore 19%, and
(c) Alexander Moore 21%.
Joint submissions have been filed on behalf of the applicant, second and third respondents dated 26 April 2023. At paragraphs 1.2 and 1.3, precise and informed submissions are made in respect of providing support for the proposed apportionment. These provide a solid basis for the agreed apportionment of the lump sum benefit.
I agree with the joint submissions that the applicant would have continued to benefit from the deceased’s support financially notwithstanding the marital separation.
I therefore make orders sought by the applicant, second respondent and third respondent in relation to the proposed apportionment. I observe that the third respondent receives a slightly higher share than his sibling due to his younger age.
The entitlement for the second and third respondents will be held by the New South Wales Trustee and Guardian pending each child reaching his or her majority.
Interest
The applicant, second and third respondents make a claim for interest pursuant to s 109 of the 1998 Act.
The parties were able to agree that interest on the lump sum benefit is to be paid from the agreed date upon which the claim was ‘duly made’, being 8 December 2020, and at a rate in accordance with reasons of Senior Member Haddock in McGrath v P.M. Electric Pty Ltd & Ors Ltd [2022] NSWPIC 263.
In McGrath, Senior Member Haddock determined that the appropriate rate of interest was 2.1% per annum, this being 2% above the Reserve Bank of Australia cash rate. The parties have now agreed to follow the reasoning applied by Senior Member Haddock in this dispute. The agreed rate is therefore 2% above the RBA cash rate (as adjusted).
Orders
The lump sum benefit payable in accordance with s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act) as at the date of death was $827,400.
The first respondent is to pay the lump sum benefit based upon the following (agreed) apportionment:
(a) $496,440 to the applicant;
(b) $157,206 to the second respondent, and
(c) $173,754 to the third respondent.
The first respondent is to pay to the applicant, second and third respondents, pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998, interest on the respective lump sum benefits at the rate of 2% per annum above the RBA cash rate for the period from 8 December 2020 to 23 June 2023.
Pursuant to s 85A of the 1987 Act, the sum apportioned in favour of the applicant is to be paid directly to her.
Pursuant to s 85(1) of the 1987 Act, the sums awarded in favour of the minor respondents (the second and third respondents) are to be paid to the New South Wales Trustee and Guardian.
The first respondent is to pay the New South Wales Trustee and Guardian its fees in accordance with clause 177 of the Workers Compensation Regulations 2016.
The first respondent is to reimburse paid funeral expenses pursuant to s 26 of the 1987 Act upon provision of tax invoices and/or receipts.
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