Jackson v FBR Management Services Pty Ltd Summary

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.

The court case of Jackson v FBR Management Services Pty Ltd involved a claim for a lump sum death benefit under the Workers Compensation Act 1987. The deceased worker's family sought compensation after the worker's death, which was attributed to injuries sustained in the course of employment. The dispute centred on whether the claimant, who was the deceased worker's wife, was entitled to a dependency benefit as per the provisions of the Act. The matter was heard in the Queensland Industrial Relations Commission.

The primary legal issue before the court was whether the claimant met the criteria for dependency under the Workers Compensation Act 1987. The court had to determine if the deceased worker's death resulted in the loss of support for the claimant, and if so, to what extent. This involved examining the financial relationship between the deceased and the claimant, including whether the deceased contributed to the claimant's support and whether the claimant relied on the deceased for financial support. Additionally, the court needed to assess the impact of the death on the claimant’s ability to maintain the same standard of living.

The court found that the claimant was indeed entitled to a dependency benefit. It considered evidence regarding the financial dependency of the claimant on the deceased worker. The court determined that the deceased worker had been a primary source of support for the claimant, and the claimant had relied significantly on the deceased for financial support. The court assessed the nature and extent of this dependency and concluded that the claimant was entitled to a lump sum benefit under the provisions of the Act. The court’s decision was based on the statutory framework and the specific circumstances of the dependency relationship between the deceased and the claimant.

The court made orders pursuant to section 29 of the Workers Compensation Act 1987, granting the claimant a lump sum death benefit. The amount was determined based on the level of dependency established in the evidence presented. This decision provided the claimant with financial support in recognition of the loss of the deceased worker's contributions to her livelihood.

Jackson v FBR Management Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established