Jason B and Natasha N Cullinan v Cullinan & Ors
[2022] NSWPIC 7
•10 January 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Jason B and Natarsha N Cullinan v Cullinan & Ors [2022] NSWPIC 7 |
| APPLICANT: | Jason B and Natarsha N Cullinan |
| FIRST RESPONDENT: | Jason Benjamin Cullinan |
SECOND RESPONDENT: | Natarsha Nicole Cullinan |
| MEMBER: | Kerry Haddock |
| DATE OF DECISION: | 10 January 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Determination of dependency and apportionment of death benefit, pursuant to section 29 of Workers Compensation Act 1987; claim for interest on lump sum pursuant to section 109 of Workplace Injury Management and Workers Compensation Act 1998; consideration of Haidary v Wandella Pet Foods Pty Limited, Dynamix Pty Ltd and Burragong Foods Pty Ltd and Kaur v Thales Underwater Systems Pty Ltd; consideration of when claim “duly made”; Held - the first and second respondents were partly dependent for support on the deceased worker; the second respondent has a medical condition that justifies apportionment to her of a greater amount; lump sum apportioned as to 40% to the first respondent and as to 60% to the second respondent; claim was not duly made until submissions on apportionment were made after the telephone conference; no order for interest on the lump sum. |
| DETERMINATIONS MADE: | 1. That the deceased worker, Kayden Benjamin Cullinan, died on 31 October 2018, as a result of injuries arising out of or in the course of his employment with the applicant. 2. That the first respondent, Jason Benjamin Cullinan, and the second respondent, Natarsha Nicole Cullinan, were partly dependent for support on the worker at the date of his death. 3. That there were no other persons dependent for support on the worker at the date of his death. 4. That the applicant is liable for the payment of lump sum compensation. |
| ORDERS MADE: | 1. That the lump sum compensation of $798,100, payable pursuant to section 25(1)(a) of the Workers Compensation Act 1987 is to be apportioned in accordance with section 29 of the Workers Compensation Act 1987 as follows: (a) Jason Benjamin Cullinan: $319,240; and (b) Natarsha Nicole Cullinan: $478,860. 2. That pursuant to section 85A(1) of the Workers Compensation Act 1987, the compensation referred to in Order 1 is to be paid to Jason Benjamin Cullinan and Natarsha Nicole Cullinan. 3. That there is no order for interest. |
STATEMENT OF REASONS
BACKGROUND
The worker, Kayden Benjamin Cullinan, was employed by the applicant on its property. I will refer to him in these reasons as Kayden to avoid confusion, meaning no disrespect to him. Kayden was the son of the applicant. He was killed on 31 October 2018, when an aircraft he was piloting in the course of his employment crashed.
On 18 November 2020, the respondents’ solicitors forwarded to Insurance & Care NSW (iCare), the applicant’s insurer, a Fatality Notification and Claim Form (the Claim Form), which was unsigned and undated. A claim was made by Kayden’s legal personal representative for the death benefit payment to be made to Kayden’s estate.
By letter dated 4 February 2021 to the applicant’s solicitors, the respondents’ solicitors advised that Kayden had passed away intestate and that whether letters of administration were obtained was likely to depend on the outcome of “this matter”. They also enclosed a copy of the Coroner’s Reasons for Dispensing with Inquest.
By letter dated 31 May 2021, iCare advised the respondents that it had accepted liability to pay the death benefit and funeral expenses.
By letter dated 7 June 2021, the applicant’s solicitors advised the respondents’ solicitors that, in light of their advice that Kayden died without leaving any persons dependent for support on him, and had not made a will, they had been informed by the Personal Injury Commission (the Commission) that it was necessary to obtain a grant of letters of administration under the Succession Act 2006; and they understood the solicitors would attend to that. They noted that another solicitor may represent the family for the purpose of these proceedings.
By letter dated 23 June 2021, the applicant’s solicitors confirmed they had instructions to commence proceedings in the Commission in order to enable payment of the lump sum compensation. They requested that the respondents’ solicitors advise their progress in obtaining letters of administration, and details of the solicitor who would represent the estate for the purposes of proceedings in the Commission.
The applicant’s solicitors referred to the respondents’ solicitors’ advice that no person was dependent on Kayden for support, and therefore the lump sum should be paid to his legal personal representative. However, they advised that it was possible that Kayden’s parents were at least to some extent dependent on him, and they would welcome the opportunity to discuss the matter with the solicitor who would be acting for the family in the Commission.
By letter dated 14 July 2021, the applicant’s solicitors advised the respondents’ solicitors that Kayden’s funeral expenses had been reimbursed. Their client was increasingly concerned at the delay in being able to pay the lump sum. The applicant’s solicitors had provided details of a solicitor who may be able to assist the respondents. Having heard nothing further, their client was considering either payment of the lump sum to the NSW Trustee and Guardian (NSW Trustee), in accordance with section 85(1)(a) of the Workers Compensation Act 1987 (the 1987 Act); or instructing that proceedings be commenced in the Commission, in the expectation that letters of administration had been obtained. The letter requested a reply by return.
By letter dated 7 October 2021, the respondents’ solicitors advised the applicant’s solicitors that its clients were dependents of Kayden at the time of his death.
By letter dated 8 October 2021, the applicant’s solicitors advised the respondents’ solicitors that they would file an Application with the Commission, to obtain the necessary determination and orders to permit payment of the lump sum pursuant to section 25 of the 1987 Act.
The applicant filed an Application in Respect of Death of Worker (the Application), seeking apportionment of the death benefit, on 14 October 2021. The amount payable as at the date of Kayden’s death was $798,100.
The Application was served on 18 October 2021. The applicant’s solicitors provided a copy of the Commission’s Procedural Direction WC1, and made certain suggestions regarding the evidence, advising they would be pleased to discuss the requirements to enable a determination to be made. They confirmed the respondents’ solicitors’ advice throughout that the respondents requested that the lump sum not be paid to the NSW Trustee, and instead that payment be delayed until a determination was obtained from the Commission to enable an order to be made pursuant to section 85A(1) that the lump sum be paid directly to the respondents.
The respondents filed their Reply on 5 November 2021. It did not contain any submissions as to apportionment of the lump sum, or any claim for interest on the lump sum.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain to be determined:
(a) the apportionment of the death benefit between the first and second respondents; and
(b) whether interest is payable on the death benefit and, if so, the rate at which and the period for which it should be paid.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for telephone conference on 15 November 2021. Mr Harris appeared for the applicant. Ms Balendra of counsel appeared for the first and second respondents, instructed by Mr Wolff and Ms Duncan. Ms Ryder of EML and Ms Dean of iCare were also present. The first and second respondents chose not to attend.
At the telephone conference, the respondents sought to claim interest on the death benefit. This application was opposed by the applicant.
As the Reply did not include submissions on the issue of apportionment, and as the claim for interest had not previously been made, directions were made for the parties to provide written submissions on apportionment and the proposed claim for interest. The parties were granted liberty to request a further telephone conference if required.
The parties have provided submissions in accordance with the direction and have been advised of my intention to determine the matter ‘on the papers’.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the Application and attached documents; and
(b) Reply and attached documents.
FINDINGS AND REASONS
Evidence of the first respondent, Jason Benjamin Cullinan
Mr Cullinan swore an affidavit dated 5 November 2021.
At the time of his death, Kayden lived with Mr and Mrs Cullinan on their property, which comprises over 100,000 acres. They farm sheep and wheat and operate an earthmoving business. The Cullinans have another son, Cameron, who is aged 21, and lives with them. I will also refer to Cameron by his given name, while meaning no disrespect.
Kayden worked in the applicant’s business and was paid a wage. He also assisted with day-to-day household tasks and work around the property. This included washing, collecting groceries and other items from the town, mowing lawns, feeding the pets, and preparing meals.
Mrs Cullinan was diagnosed with a medical condition when she was about 20 years old. The condition is such that she has required numerous surgeries throughout her life. They are required about every five years, and on one occasion only about two years apart.
Mrs Cullinan must travel to Melbourne for surgery, and usually remains in hospital for “a couple of weeks”. She then needs to travel to Melbourne for a check-up about two or three weeks after being discharged from hospital.
Every 6 to 12 months, Mrs Cullinan travels to Melbourne for scans. This occurs at least every 12 months, but may be more frequent, depending on her condition. Whenever she needs to go to Melbourne for surgery, check-ups or scans, Mr Cullinan accompanies her. There has been only one occasion in 25 years that he has not done so.
Kayden left school after completing year 9, in 2014. From that time, he worked in the applicant’s business and helped around the house. When Mrs Cullinan needed to go to Melbourne, Kayden would on most occasions remain at home to look after Cameron, the farm and the household.
Cameron also worked in the family business, having left school in 2016. When Mr and
Mrs Cullinan had to go to Melbourne, he and Kayden would look after the house, the property and the business.After undergoing surgery, Mrs Cullinan may take up to 12 months to recover fully. She may have a range of symptoms that include limited balance and the inability to lift things. She has been diagnosed as paraplegic. Mr Cullinan’s average workday starts at 5am and finishes at dusk. In any quiet part of the year, he is busy operating the earth moving business. He could not work and maintain the household while Mrs Cullinan recovers from surgery. If not for Kayden, he would probably have had to hire someone to assist during those periods.
Kayden provided Mrs Cullinan with personal assistance after her surgeries, did the housework and cooked for the family. He also helped on the property outside workhours. He often shot pests, fixed vehicles, checked water levels, assisted in raising lambs, fed stock, and performed general farm maintenance.
Mrs Cullinan has had one further surgery, in about October 2020, since Kayden passed away. During her recovery at home, which took about three to four months, they hired a cleaner to clean the house once a week. They had not needed a cleaner before, as that was something Kayden did.
Mr Cullinan’s parents, Don[ald] and Cherry Cullinan, also came to the house regularly to help with gardening and mowing lawns, which Kayden had previously done. Mrs Cullinan’s mother, Margaret Dyke, came to the house from time to time, bringing meals, as she knew Kayden had previously done the cooking. She also did some washing and ironing.
Mrs Cullinan had cooked and frozen meals before undergoing surgery, but if they did not eat those meals, or those cooked by Mrs Dyke, Mr Cullinan would cook when he got home. This usually meant eating as late as 10pm.
After Mrs Cullinan’s most recent surgery, Mr Cullinan became acutely aware of how much they had come to rely on Kayden in those periods. He often needed to do something on the farm or generally, and also needed to stay at the house to care for Mrs Cullinan. In the past, Kayden would have been sent to help, or would stay at the house. Each time this came up, Mr Cullinan realised he needed help.
This had been a relatively minor surgery and easy recovery for Mrs Cullinan, and they still required assistance from their extended family and a cleaner. Kayden’s contributions at all times, but especially during those periods, were substantial and they were dependent on him for that help.
Mr Cullinan does not believe that anyone besides himself and Mrs Cullinan was dependent on Kayden. Kayden was single when the accident happened and did not have any children. He had no siblings besides Cameron, and there were no other people of whom Mr Cullinan was aware who may have been dependent on him.
Evidence of the second respondent, Natarsha Nicole Cullinan
Mrs Cullinan swore an affidavit dated 5 November 2021.
Much of Mrs Cullinan’s evidence confirms evidence provided by Mr Cullinan, and it is unnecessary to repeat it.
Mrs Cullinan confirmed that her condition has required her to undergo multiple surgeries. When Kayden and Cameron were young, they would be left with either her parents or
Mr Cullinan’s parents when she and Mr Cullinan travelled to Melbourne. After Kayden left school, they would leave him to look after Cameron and the household.When Mrs Cullinan is healthy, she does most of the cleaning and washing, much of the cooking and administrative tasks, and grocery and household shopping. It is about a 50 km drive to town, so she would do one large weekly trip.
After leaving school, Kayden typically helped with cleaning and washing. He liked to cook and cooked a lot of family meals. When Mrs Cullinan was healthy, Kayden cooked about two meals a week, but when she was recovering from surgery, he would cook every night. He would also at such times have to do a lot of the washing, cleaning and help her with other tasks. He also helped her with rehab and changing her dressings.
During the first six weeks (after surgery), Mrs Cullinan usually could not drive. After Kayden got his licence when he was 17, he would drive her places whenever needed. He also did the grocery shopping because, even as she recovered, she could not lift groceries. Kayden helped her during her recoveries even before he left school, but significantly more afterwards. She had come to rely on him to a significant extent.
After Mrs Cullinan’s surgery in October 2020, they needed help around the house during her recovery. This was made difficult by Covid and she was surprised at how much more help they needed without Kayden. They had never hired a cleaner before. They received regular help from her mother.
During this period, Woolworths had started delivering as far out as their property, so
Mrs Cullinan started ordering groceries online. The driver would then deliver them to the cool room.
Kayden was single when the accident happened and did not have any children. He had no other siblings but Cameron.
Evidence of Cameron Cullinan
Cameron made a statutory declaration on 5 November 2021.
Cameron declared that he was not dependent on Kayden at the date of his death and does not wish to make any dependency claim in relation to Kayden’s death.
Evidence of Arthur Dyke
Mr Dyke is Mrs Cullinan’s father and Kayden’s grandfather. He made a statutory declaration on 5 November 2021.
Mr Dyke declared that he was not dependent on Kayden at the date of his death and does not wish to make any dependency claim in relation to Kayden’s death.
Evidence of Margaret Dyke
Mrs Dyke made a statutory declaration on 5 November 2021.
Mrs Dyke declared that she was not dependent on Kayden at the date of his death and does not wish to make any dependency claim in relation to Kayden’s death.
Evidence of Donald Cullinan
Mr Donald Cullinan made a statutory declaration on 5 November 2021.
Mr Cullinan declared that he was not dependent on Kayden at the date of his death and does not wish to make any dependency claim in relation to Kayden’s death.
Evidence of Cherry Cullinan
Mrs Cherry Cullinan made a statutory declaration dated 5 November 2021.
Mrs Cullinan declared that she was not dependent on Kayden at the date of his death and does not wish to make any dependency claim in relation to Kayden’s death.
SUBMISSIONS
The parties have provided written submissions. I will therefore provide only a summary of the submissions.
Respondents
The respondents’ submissions are dated 26 November 2021.
Dealing first with the issue of dependency, the respondents submitted that it is uncontentious that they were Kayden’s only dependents. They submitted that support under section 25 of the 1987 Act has been determined not to be limited to financial support, but encompasses multifactorial aspects, including assistance with day-to-day activities and emotional support – Ford v John Ford Concreting Pty Ltd [2021] NSW PIC 377 at [26].
As regards apportionment of the lump sum death benefit, the respondents firstly referred to their evidence and it is unnecessary that I repeat it.
The respondents submitted that the dependency situation is somewhat unusual, in that it revolves around the care and assistance provided to Mrs Cullinan by Kayden. It is clear that both parents were reliant on Kayden’s assistance and day-to-day care. It is necessary to examine which parent relied on him more.
The respondents submitted that both were reliant on Kayden in a financial sense, for the assistance he provided in the home, which is now provided by a cleaner, as well as the business.
A further consideration is the respondents’ future needs. They are both young, but submitted that, as they age, and particularly if Mrs Cullinan’s condition deteriorates, it is likely she would have the greater needs. Mr Cullinan will continue to shoulder the responsibility for those needs.
The respondents submitted that on balance, Mrs Cullinan has the greater claim for dependency. However, given that Mr Cullinan’s responsibility for her care will increase over time, it would be appropriate to apportion the lump sum as to 60% to Mrs Cullinan; and 40% to Mr Cullinan. “As an aside”, they have confirmed that they do not consider they have conflicting claims.
As to the claim for interest, pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondents noted that the Commission has discretion in relation to the award of interest, rate of interest, and the date from which it is calculated. The respondents make a claim for interest at the rate of 4%.
The respondents noted that the insurer accepted liability for the claim at an early stage and it was due to their personal situation that the claim was not brought in the Commission at an earlier stage. They submitted that, nonetheless, by 8 October 2021, the insurer was fully apprised of the particulars of the claim, as required by Kaur v Thales Underwater Systems Pty Ltd [2011] NSWWCCPD 6 (Kaur). A claim for interest from 8 October 2021 is made.
Applicant
The applicant made no submissions in relation to either dependency or apportionment.
The applicant proceeded on the assumption that the respondents claim interest on the lump sum at the rate of 4% per annum from 8 October 2021 to the date of the Certificate of Determination (COD).
The applicant annexed to its submissions documents that support a chronology of events from the date the claim was submitted, on 18 November 2020, to 18 October 2021, when the Application was served. I have referred to some of these documents in the background to the claim and will refer to them in my reasons.
The applicant submitted that the power to award interest pursuant to section 109 of the 1998 Act is discretionary, referring to the decisions in Haidary v Wandella Pet Foods Pty Limited, Dynamix Pty Ltd and Burrangong Pet Foods Pty Ltd [2005] NSWWCCPD 9 (Haidary); Canham v Kenna Investments Pty Ltd [2006] NSWWCCPD 202; and Kaur.
The applicant submitted that of most significance to the exercise of the discretion is that it was not, and is still not, legally, or at least practically possible, or even desired by the respondents, for the insurer to pay any part of the section 25(1)(a) lump sum until the Commission has:
(a) made a determination of those persons who were dependent for support upon the deceased;
(b) made a determination pursuant to section 29 of the 1987 Act apportioning the lump sum as between the dependants; and
(c) made the orders under section 85(1)(a) and section 85A(1) of the 1987 Act for the payments consistent with that apportionment.
The applicant submitted that, while it would have been possible for the insurer to immediately pay the lump sum to the NSW Trustee, pursuant to section 85(1)(a) of the 1987 Act, no dependant requested it. Having regard to the fees charged by the NSW Trustee, it should be assumed and accepted that none would have requested it, as the fees would have exceeded any entitlement to interest.
The applicant submitted that it should be inferred from the absence of a response on behalf of the respondents to the letter dated 18 October 2021 that each respondent did not wish the section 25(1)(a) sum to be paid until the issue of the COD, to permit payment of the share apportioned in favour of either respondent to be paid direct to him or her. It further submitted that, even if the lump sum had been paid immediately to the NSW Trustee, no payment would have been made to any dependant until the determination by the Commission of dependency and apportionment, followed by the orders for payment.
The applicant submitted that, while it is well-established generally that a paramount consideration in the exercise of the discretion to award interest is that the insurer has had the use of the compensation, and the person entitled to it was denied its use, this should not be so in claims arising out of the death of a worker. In such claims, a far more relevant factor is the inability of an insurer to pay the lump sum without the determination by the Commission, other than by immediate payment to the NSW Trustee.
The applicant submitted that a further factor outweighing the relevance of the insurer having had the use of the lump sum is section 109(2)(c), which is inconsistent with that factor having as much relevance in a claim arising out of the death of a worker as in other claims.
The applicant submitted that, for the above reasons, and in the exercise of its discretion, the Commission should decline to order interest.
In the alternative, if it is determined that interest should be awarded, the applicant made submissions on the period/s that should be the subject of an order for interest; and the rate/s at which interest should be ordered.
With respect to the period/s that should be the subject of an order for payment of interest, the applicant submitted that, in accordance with section 109(2)(b) of the 1987 Act, interest cannot be ordered before a claim for compensation was duly made; and it is well established that, in claims arising out of the death of a worker, a claim by a dependant is not “duly made” until full particulars of the alleged dependency have been provided.
The applicant submitted that the respondents’ submissions are inconsistent with the clear statement of opinion by his Honour President Keating in Kaur.
The applicant relied on the decisions of Arbitrator Wynyard in Shanika Cooper v G & W Mudgee Concreting Pty Ltd & Ors (6411/18) (Cooper); Arbitrator Isaksen in Lavelle v David Paul Browne & Ors (533/19) (Lavelle); Arbitrator Harris in Alexander v J B Cullinan & N N Cullinan & Ors (WCC 4832/20); Arbitrator Beilby in Lindsay v City Clean Payroll Pty Ltd (6364/20) (Lindsay); Arbitrator Toohey in A1 Arbor Tree Service Pty Ltd v Matai & Ors (2123/20) (A1 Arbor Tree Service); Member Wynyard in Mudgee Explorer Tours Pty Ltd v Clarke [2021] NSWPIC 41 (Clarke) and Senior Member Capel in Youseph v Homebush Unit Trust t/as Primo Smallgoods [2021] NSWPIC 299 (Youseph).
The applicant submitted that the respondents’ submission that interest should be ordered from 7 October 2021 [sic: 8 October 2021], being the date on which their solicitors issued a letter stating that they were dependent for support on the deceased, ignores the fact that no such allegation was previously made, and the letter did not contain any particulars of dependency. The Reply contained no particulars of dependency, which were first provided with the filing of the respondents’ submissions in accordance with a direction made at the telephone conference on 15 November 2021.
The applicant submitted that the proceedings were effectively adjourned on 15 November 2021, on the application of the respondents, because of the need to file further evidence, and no interest could be awarded after 15 November 2021 in any event.
The applicant submitted that, in all the circumstances, and in the exercise of its discretion, the Commission should decline to make any order for the payment of interest during any period.
With respect to the rate at which interest should be ordered, the applicant submitted that the exercise of the discretion in accordance with section 109(1) of the 1998 Act requires the Commission to have regard to the actual rates of interest offered by banks, which have at all relevant times been 0.10%. It submitted this was consistent with the approach of Arbitrator Batchelor in Cameron v StateCover Mutual [2015] NSWWCC 325; and the decision in Riverdene Equine Hospital Pty Ltd v Tupani [2015] NSWWCC 240 (Arbitrator Dalley).
The applicant relied on the decisions of Arbitrator Isaksen in Cameron v Enviro Pallets Pty Ltd (2070/20); Senior Arbitrator Bamber in Baroudi v Kelly Services Pty Ltd (5220/19) and Baldwin v Fleetmaster Services Pty Ltd (1648/20); Walters (no citation provided); and the decisions in Lindsay; A1 Arbor; Mudgee Concreting; and Youseph.
The applicant finally submitted that, if interest is awarded, a rate of no more than 2% per annum would be appropriate.
SUMMARY
Dependency and apportionment
Section 25 of the 1987 Act provides:
“(1) If death results from an injury, the amount of compensation payable by the employer under this Act shall be--
(a) the amount of $750,000 (the “lump sum death benefit”), which is to be apportioned among any dependants who are wholly or partly dependent for support on the worker or (if there are no such dependants) paid to the worker's legal personal representative, and
(b) in addition, an amount of $66.60 per week in respect of--
(i) each dependent child of the worker under the age of 16 years, and
(ii) each dependent child of the worker being a student over the age of 16 years but under the age of 21 years.
(2) Payments in respect of a dependent child under subsection (1) (b) shall continue--
(a) except as provided by paragraph (b)--until the child dies or reaches the age of 16 years, whichever first occurs, or
(b) in the case of a dependent child who is a student at the time of the worker's death or after reaching the age of 16 years--until the child dies, reaches the age of 21 years or ceases to be a student, whichever first occurs.
(3) The amount of any weekly payments, or other compensation payable under this Act, shall not be deducted from the amounts referred to in subsection (1) (a) or (b).
(4) If an amount mentioned in subsection (1) (a) at any time after the commencement of this Act--
(a) is adjusted by the operation of Division 6, or
(b) is adjusted by an amendment of this section,
the compensation payable under subsection (1) (a) is to be calculated by reference to the amount in force at the date of death.
(4A) If the death of a worker results both from an injury received before the adjustment of an amount mentioned in subsection (1) (a) and an injury received after that adjustment, the worker shall, for the purposes of subsection (1) (a), be treated as having died as a result of the injury received after that adjustment.
(5) In this section--
“child of the worker” means a child or stepchild of the worker and includes a person to whom the worker stood in the place of a parent.
“dependent child of the worker” means a child of the worker who was wholly or partly dependent for support on the worker.
“student” means a person receiving full-time education at a school, college or university.”The applicant does not dispute dependency. Having regard to the evidence of the respondents, I am satisfied that they were partly dependent for support on Kayden.
It was confirmed in Warilla Timber and Hardware Pty Ltd v Newton (1995) 11 NSWCCR 546 (Newton); Albury Real Estate Pty Ltd v Rouse and anor [2006] NSWWCCPD 139 (Rouse); and Richardson v Turfco Australia Pty Ltd [2016] NSWWCCPD 43 that reference to “support” in section 25 of the 1987 Act is not limited to financial support but includes matters such as assistance with day-to-day activities and emotional support.
In Rouse, Acting Deputy President Roche, as he then was, applied Newton and said “[t]he test is not whether the person is ‘financially dependent’ on the deceased but whether he or she is dependent for ‘support’” (at [49]).
Kayden clearly provided considerable practical assistance and emotional support to both his parents, as evidenced by their statements, to which I have referred above. The fact that Kayden was able to take care of the property, the home and the business (and Cameron, when he was younger) allowed Mr Cullinan to support Mrs Cullinan through her surgeries, investigations and check-ups in Melbourne. After Kayden’s death, they were obliged to both pay for assistance in the home and rely on extended family for support.
Evidence has been provided by Cameron, who is Kayden’s only sibling, his maternal grandparents and his paternal grandparents. Each has declared that he or she was not dependent for support on Kayden at the date of his death and makes no claim. Kayden was single when he died, had no children, and his parents are not aware of any other persons who may have been dependent on him.
I am satisfied that there were no other persons either wholly or partly dependent on Kayden at the date of his death, so that the lump sum death benefit of $798,100 pursuant to section 25(1)(a) of the 1987 Act will be paid to the respondents, pursuant to section 29(1) and section 85A(1) of the Act.
Turning to the issue of apportionment, the factors relevant to apportionment are set out in the judgment of Egan ACCJ in Wratten v Kirkpatrick [1996] NSWCC2; (1996) 15 NSWCCR 32.
Egan ACCJ said:
“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.” (at [34] – [35])
Mr and Mrs Cullinan are now aged 47 and 48, respectively. They would have had a similar period of expected dependency on Kayden. They have conceded that Mrs Cullinan’s future needs are likely to be greater. She has a condition that at times meant she required additional assistance, either from Kayden or from Mr Cullinan. I am mindful, of course, that any assistance Kayden provided to his mother was also of assistance to his father, who was thereby able to perform his duties on the property or in the business. Similarly, Kayden’s work on the property and in the business allowed Mr Cullinan to assist Mrs Cullinan and perform domestic duties.
I accept that Mr Cullinan will take greater responsibility for Mrs Cullinan’s care in the future. They have submitted that an appropriate apportionment of the lump sum benefit is as to 60% to Mrs Cullinan and 40% to Mr Cullinan. That appears to me to be appropriate in their individual circumstances, and I apportion liability accordingly.
Interest
Section 109 of the 1998 Act provides:
“(1) In any proceedings before the Commission, the Commission may order that there is to be included, in any sum to be paid, interest at such rate as the Commission thinks fit on the whole or any part of the sum for the whole or any part of the period before the sum is payable, subject to the limitations imposed by this section.
(2) Interest cannot be ordered under this section--
(a) on any compensation payable under Division 4 of Part 3 of the 1987 Act, or
(b) on any compensation payable under this Act for any period before a claim for the compensation was duly made, or
(c) on any compensation payable under this Act for any period during which proceedings before the Commission were adjourned on the application of the claimant for the compensation or pursuant to section 102.
(3) This section does not--
(a) authorise the giving of interest upon interest, or
(b) apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise.”
The respondents’ claim for interest was made at the telephone conference on 15 November 2021. The applicant opposed the claim being made.
Although the applicant made no submissions on the issue of whether the respondents should be granted leave to claim interest, for the sake of completeness, I grant leave to the respondents to make a claim for interest on the lump sum. There is no prejudice to the applicant in allowing the claim to be made. As I required the respondents to provide submissions on apportionment, it was necessary to adjourn the matter on 15 November 2021 to allow for that to take place. The applicant has had the opportunity to make submissions on whether interest should be awarded, and, if so the period for which, and the rate at which, the award should be made.
The power to award interest is discretionary and may apply to some or all of the compensation payable, for the entire period, from the date of the claim to the date of the order, or for a lesser period. The rate of interest is also a discretionary matter. However, whilst the discretion is wide, regard must be had to the facts of the case.
In Haidary, Deputy President Fleming discussed the reasoning behind an award of interest and the relevant interest rate. She said:
“The award of interest by the Commission, pursuant to section 109 of the 1998 Act is discretionary. Mr Haidary will only be entitled to interest, if awarded, on those amounts of his weekly entitlement that were unpaid, and only from the date that his claim ‘was duly made’. The likely amount of interest that would be due on these sums is small, relative to the whole of his claim, but nonetheless they may form part of Mr Haidary’s entitlement. The purpose of ordering interest on an award is to compensate the worker for the loss of his or her income, not to penalise the employer (Virag v James N Kirby t/as Betts Electric Motors (1990) 6 NSWCCR; Healey v McPherson Binding Pty Ltd (1989) 5 NSWCCR 139).”
There is no legislative provision that provides for a time limit in which an insurer is required to determine a claim pursuant to section 25 of the 1987 Act. There is no requirement that a claimant provide specific information or evidence. Accordingly, the legislation does not require specific material to be served in making a claim for the death benefit pursuant to section 25 of the 1987 Act.
The applicant has attached to its submissions various correspondence between its solicitors and those acting for the respondents. Some, although not all, of that correspondence was attached to the Application. No objection has been taken by the respondents to the applicant’s reliance on the additional documents, some of which are relevant only to the claim for interest. As that claim was not made until the telephone conference on 15 November 2021, and as there is no prejudice to the respondents in allowing the applicant to rely on the contents of those documents, to the extent that it is necessary, leave is granted to the applicant to do so.
While it is not determinative, it is relevant in my view to the exercise of my discretion that liability was accepted at a relatively early stage. The applicant thereafter made attempts to bring the matter to a conclusion. Its advice that its client was considering payment of the lump sum to the NSW Trustee does not appear to have met with a response.
In Brambles Australia Ltd t/as Gardner Perrott Industrial Services v Hamilton & Monier Ltd [2006] NSWWCCPD 169, Acting Deputy President Harrington said:
“The awarding of interest is a discretionary matter. Whether the discretion was exercised in favour of Mr Hamilton would depend on the evidence before the Commission. Relevant evidence may include the reasons as to why there was such a delay in the determination of Mr Hamilton’s claim and whether Mr Hamilton received social security benefits…”
Both parties referred me to Kaur, in which Keating P said at [139]:
“Section 109(2)(b) of the 1998 Act prohibits interest on any award of compensation payable under the Act for any period before a claim for compensation on behalf of the appellants was duly made. I accept the submission that the claim for compensation on behalf of the appellants was not duly made until the day of the arbitration. I therefore accept Thales’s submission that, as at the arbitration, the appellants could not be entitled to interest pursuant to s 109 of the 1998 Act”.
The phrase “duly made” has been held to mean “fully particularised”. It was applied in Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited [2020] NSWWCC, in which Arbitrator Isaksen referred to the decision of Arbitrator Wynyard (as he then was) in Cooper and his own decision in Lavelle, in which he agreed with Arbitrator Wynyard’s approach. Member Wynyard took a similar approach in Clarke.
It appears to be accepted by the respondents that the earliest date on which the claim could be said to have been duly made was 8 October 2021 [sic: 7 October 2021]; and interest is claimed from that date.
I do not accept that the claim was duly made on 7 October 2021. The letter to the applicant’s solicitors advising that the respondents were dependent on Kayden at the date of his death contained no more than that bare assertion. The respondents had not before that date claimed to have been dependent, and in fact a claim had been made on behalf of Kayden’s estate.
It was not until the respondents’ Reply was filed on 5 November 2021 that any evidence in support of their claim to have been dependent for support on Kayden was provided to the applicant. That was 10 days before the telephone conference on 15 November 2021. In my view, the best case for the respondents is that the claim was duly made on 5 November 2021.
The Reply did not contain any submissions on an appropriate apportionment of the lump sum. Even at the telephone conference, no submissions were made. Rather, the matter was adjourned to allow submissions on apportionment between Mr and Mrs Cullinan, and on the claim for interest, to be made. The respondents were not present at the conference, so that they could not have provided instructions at that time.
Member Wynyard observed in Clarke that in Cooper, Alexander, Lindsay and A1 Arbor, the claim was found to be fully particularised when the claim for dependency was made, whilst in Lavelle it was found to be when the submissions regarding apportionment and interest had been filed.
In this matter, I am persuaded that the appropriate date on which the claim was fully particularised was when the respondents’ submissions as to apportionment and interest were provided on 26 November 2021. Prior to that date, the Commission was not able to make findings and orders. The last date for submissions by the parties was 10 December 2021, but the last submissions were provided on 29 November 2021.
In the circumstances, and in the exercise of my discretion, I decline to make an order for interest on the lump sum compensation. It is therefore unnecessary that I determine the appropriate rate of interest and the period of payment.
The determinations and orders are as set out in the COD.
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