Kang Trans Pty Ltd v Kaur
[2022] NSWPIC 48
•7 February 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Kang Trans Pty Ltd v Kaur [2022] NSWPIC 48 |
| APPLICANT: | Kang Trans Pty Ltd |
| FIRST RESPONDENT: | Jagdish Kaur |
| SECOND RESPONDENT: | Vijay Kumar as tutor of Harkirat Kaur |
| THIRD RESPONDENT: | Harjeet Kaur as tutor Parleen Kaur |
| FOURTHRESPONDENT: | Navjot Singh as tutor of Simran Kaur |
| MEMBER: | Glenn Capel |
| DATE OF DECISION: | 7 February 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Death claim; determination of dependency; apportionment; payment of death benefit and interest; TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd and Wratten v Kirkpatrick & Ors discussed and applied; Held - death benefit and agreed interest apportioned and orders for payment. |
| DETERMINATIONS MADE: | 1. The deceased worker, Baljinder Singh, died on 1 February 2021 as a result of injuries sustained during the course of his employment with the applicant. 2. Jagdish Kaur, Harkirat Kaur, Parleen Kaur and Simran Kaur were wholly 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. |
| ORDERS MADE: | 5. The names of the second, third and fourth respondents are amended to Vijay Kumar as tutor of Harkirat Kaur, Harjeet Kaur as tutor Parleen Kaur and Navjot Singh as tutor of Simran Kaur respectively. 6. The lump sum compensation of $834,200 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) $557,300 to Jagdish Kaur; (b) $78,000 to Harkirat Kaur; (c) $62,400 to Parleen Kaur, and (d) $136,500 to Simran Kaur. 7. The interest in the agreed sum of $5,000 payable pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act1998 is to be apportioned as follows: (a) $3,340.50 to Jagdish Kaur; (b) $467.50 to Harkirat Kaur; (c) $374 to Parleen Kaur, and (d) $818 to Simran Kaur. 8. The applicant is to pay lump sum compensation and interest in the sum of $560,640.50 to Jagdish Kaur pursuant to section 85A(1)(a) of the Workers Compensation Act1987 and section 109 of the Workplace Injury Management and Workers Compensation Act1998. 9. The applicant is to pay lump sum compensation and interest in the sum of $78,467.50 to the New South Wales Trustee and Guardian to hold on trust until Harkirat Kaur attains the age of 18 years pursuant to section 85(1)(c) of the Workers Compensation Act1987 and section 109 of the Workplace Injury Management and Workers Compensation Act1998. 10. The applicant is to pay lump sum compensation and interest in the sum of $62,774 to the New South Wales Trustee and Guardian to hold on trust until Parleen Kaur attains the age of 18 years pursuant to section 85(1)(c) of the Workers Compensation Act1987 and section 109 of the Workplace Injury Management and Workers Compensation Act1998 11. The applicant is to pay lump sum compensation and interest in the sum of $137,318 to the New South Wales Trustee and Guardian to hold on trust until Simran Kaur attains the age of 18 years pursuant to section 85(1)(c) of the Workers Compensation Act1987 and section 109 of the Workplace Injury Management and Workers Compensation Act1998. |
STATEMENT OF REASONS
BACKGROUND
The deceased worker, Baljinder Singh, died on 1 February 2021 as a result of injuries sustained during the course of his employment with Kang Trans Pty Ltd (the applicant).
Liability was accepted by Employers Mutual Ltd (the insurer) pursuant to ss 25(1)(a) and 26 of the Workers Compensation Act1987 (the 1987 Act) on 22 June 2021, subject to a determination of potential dependants.
The applicant filed an Application in Respect of Death of Worker (the Application) in the Personal Injury Commission (the Commission) on 21 October 2021.
The deceased’s wife, Jagdish Kaur, is named as the first respondent. Vijay Kumar as tutor of Harkirat Kaur is the second respondent. Parleen Kaur (third respondent) and Simran Kaur (third respondent) in the Application.
As the children are all minors, the names of the second, third and fourth respondents will be amended to Vijay Kumar as tutor of Harkirat Kaur, Harjeet Kaur as tutor Parleen Kaur and Navjot Singh as tutor of Simran Kaur respectively.
The applicant seeks apportionment of the lump sum death benefit of $834,200 in accordance with ss 25(1)(a) and 29 of the 1987 Act and interest pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), together with orders authorising payment of the lump sum pursuant to ss 85A(1)(a) and 85(1)(c) of the 1987 Act.
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 December 2021, I directed that the respondents file written submissions by 21 January 2022 and the applicant by 28 January 2022. The parties complied with this direction. The applicant did not file submissions regarding the claim for interest. There were no submissions in reply.
ISSUES FOR DETERMINATION
The parties advised in their submissions that the respondent had agreed to pay $5,000 for interest. This was acceptable to the respondents. I was also informed that that funeral expenses had been paid by the insurer.
10.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 $834,200 payable – s 29 of the 1987 Act, and
(c) orders in relation to payment of the compensation and interest – ss 85A(1)(a) and 85(1)(c) of the 1987 Act.
EVIDENCE
Documentary evidence
11.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;
(d) Third Respondent’s Reply with attachments;
(e) Fourth Respondent’s Reply;
(f) Application to Admit Late Documents received on 4 November 2021, and
(g) Application to Admit Late Documents received on 13 January 2022.
Oral evidence
12.The parties did not seek leave to adduce oral evidence or cross examine any witnesses.
REVIEW OF EVIDENCE
13.Given the discreet nature of the matters in issue, I will focus my review on the documents that concern dependency and apportionment, rather than any liability documents.
Statutory declaration and statement of Jagdish Kaur
14.Jagdish Kaur provided a statutory declaration on 8 September 2021. She advised that she married the deceased on 28 November 2007, and they had three daughters. Parleen was born in 2007, Harkirat in 2009 and Simran in 2017. She stated that at the time of her husband’s death, she did not have a job and she was totally dependent on him for financial support.
15.Ms Kaur stated that the deceased’s parents lived in India, and they were not financially dependent on him at the time of his death. They were aware of these proceedings and did not intend to make a claim. Her daughters were dependant on their father, and she was not aware of any other people who were dependent on him at the time of his death.
16.In her statement dated 12 January 2022, Ms Kaur stated that she continues to take care of her three children and is waiting for Letters of Administration. She advised that she has a mortgage of $539,000, and she is now paying reduced repayments of $200 per month. This arrangement will remain in place until March 2022, when they will revert to $5,300 per month. She is currently in receipt of $1,500 per week from her business, Inder Logistics. She pays for the care and upkeep of her daughters from her earnings. She was totally dependent on her husband at the time of his death.
Statutory declaration of the second respondent
17.Harjeet Kaur provided a statutory declaration on behalf of the deceased’s daughter, Parleen, on 13 October 2021. He stated that he understood that Parleen was wholly dependent on her father at the time of his death. He indicated that she has no special needs. She is currently in year 9 at high school and it is his expectation that she will continue in her studies until she reaches 23 years of age in nine years’ time.
18.Parleen Kaur provided a statutory declaration on 13 October 2021. He stated that she was close to her father, and they rarely had disagreements. They spent a lot of time together, went bike riding, watch television and go camping with him to holiday parks by herself or with the rest of the family. He would watch her when she was debating and playing sport at school.
19.Ms Kaur stated that he would give her $50 per week in pocket money, and whenever she needed new clothes or school books, she would ask him to buy these for her. He paid for her guitar, mobile phone and laptop. She would also ask him for money when she went out with friends, and he would give her money to buy birthday presents for her friends. She looked upon her father as a friend and she missed him.
Statutory declaration of the third respondent
20.Vijay Kumar provided a statutory declaration on behalf of the deceased’s daughter, Harkirat, on 11 October 2021. He advised that Harkirat was currently in year 7 at high school and it is his expectation that she will continue in her studies until she reaches 23 years of age in 11 years’ time. He stated that she has no special needs and was wholly dependent on her father at the time of his death.
Statutory declaration of the fourth respondent
21.Navjot Singh, the deceased’s nephew, provided a statutory declaration on behalf of the deceased’s daughter, Simran, on 13 October 2021. He stated that Simran is only four years old and was wholly dependent on the deceased when he died. He expects that once she completes her secondary school education, she will attend a university or college and attain tertiary qualification in her chosen field.
Statutory declarations of Gurmukh Singh and Daljeet Singh
22.Gurmukh Singh, the deceased’s father, provided a statutory declaration on 29 October 2021. He stated that he was aware that a claim could be made on the death benefit by a dependent, and he had been advised to seek legal advice, but he did not wish to make a claim.
23.The deceased’s mother, Daljeet Kaur, provided a statutory declaration in identical terms on 29 October 2021.
Documents
24.The marriage and death certificates of the deceased, and the birth certificates of his three daughters are in evidence.
25.The applicant and her late husband had a joint back account and a mortgage with the Westpac Bank.
26.On 26 August 2021, the applicant’s solicitor sent an email to the solicitors for the respondents and informed them that the insurer required duly made claims or at least statutory declarations in respect of dependency from each dependant. He pointed out that any claim for interest would be contingent on when claims had been duly made. Further requests for information were sent via email on 5 October 2021 and 13 October 2021.
27.A copy of a receipt from Blacktown City Funerals shows that funeral expenses of $15,050 were paid on 21 February 2021. These expenses have been reimbursed by the insurer.
FIRST RESPONDENT’S SUBMISSIONS
28.The first respondent’s counsel, Mr Phillip Perry, submits that the first respondent and her daughters were dependent upon the deceased for support, and there was no other person dependent.
29.Mr Perry indicated that the parties had resolved the claim for interest in the sum of $5,000. He submits that according to his instructions, ownership of the family home will be transferred to her once the letters of administration are granted, and she intends to reduce the level of the mortgage. She will continue to care for her daughters at least until they each reach their majority, and she will continue to receive an income from her business.
30.Mr Perry submits that the parties have reached a proposed apportionment of the death benefit as follows:
(a) Jagdish Kaur: $604,200;
(b) Harkirat Kaur: $70,000;
(c) Parleen Kaur: $60,000, and
(d) Simran Kaur: $100,000.
31.Mr Perry submits that the agreed interest of $5,000 should be apportioned on a pro-rata basis. Payments of weekly compensation for the three daughters will continue pursuant to
s 25(1)(b) of the 1987 Act.
SECOND RESPONDENT’S SUBMISSIONS
32.The second respondent’s counsel, Ms Grotte, submits that the second respondent adopts the submissions of the first respondent without amendment.
THIRD RESPONDENT’S SUBMISSIONS
33.The third respondent’s counsel, Ms Goodman, submits that the third respondent adopts the submissions of the first respondent regarding apportionment of the death benefit and interest.
FOURTH RESPONDENT’S SUBMISSIONS
34.The fourth respondent’s counsel, Mr Nesbeth, submits that the fourth respondent is the youngest child of the deceased and the first respondent, and is currently only four years old.
The first respondent was not in gainful employment at the time of her husband’s death, and all of the respondents were entirely financially dependent on the deceased.
35.Mr Nesbeth submits that the fourth respondent is presently attending a day care centre and will commence her primary school education in 2023. According to the first respondent, it is her expectation that upon the completion of her secondary schooling, the fourth respondent will attend university or college, and she will attain tertiary qualifications at the age of 23 or by 2040.
36.Mr Nesbeth submits that the fourth respondent agrees with the joint submissions proposed by the first respondent, consistent with the agreement between the parties regarding apportionment of the death benefit and interest. He submits that he first respondent ought to receive the greatest proportion of the benefits payable. The children of the deceased are largely in a similar position, but their respective entitlements ought to be adjusted on account of their differing ages. It can be reasonably inferred that the younger would have a longer period of dependency.
REASONS
Dependency
37.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].
38.In TNT Group 4 Pty Limited v Halioris[3], McHugh JA stated:
[3] (1987) 3 NSWCCR 10; 8 NSWLR 486 (Halioris).
“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]
[4] Halioris, [489].
39.Further, in Kaur v Thales Underwater Systems Pty Ltd[5], President Keating stated:
[5] [2011] NSWCCPD 6 (Kaur).
“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]
[6] Kaur, [126].
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]
[7] Kaur, [148].
40.I am satisfied that the evidence shows that the applicant and her daughters were wholly dependent on the deceased at the time of his death. The applicant performed home duties and the deceased was the sole bread winner for his wife and children.
41.Further, I am satisfied there were no other persons wholly or partly dependent on the deceased at the date of death.
Apportionment
42.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:
[8] (1996) 15 NSWCCR 32 (Wratten).
“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]
[9] Wratten, [34].
43.Each case requires an examination of the individual facts as no two matters are identical.
44.The parties have obviously put some thought into reaching a preliminary agreement as to apportionment. Nevertheless, having regard to the evidence, I am not satisfied that this represents a fair and appropriate apportionment of the death benefit, particularly in regard to the fourth respondent.
45.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 children.
46.It is always difficult to assess the future expectations of minor children, as any assessment is highly speculative. The children do not currently have any special needs, but they would have somewhat different expectations based on their ages. Unfortunately the first respondent’s statement gives no insight into the needs of each child. She will receive weekly compensation for her children’s upkeep pursuant to s 25(1)(b) of the 1987 Act and these payments can continue until they each turn 21 years of age. Nevertheless, these payments would hardly cover the cost of her daughters’ care.
47.The second respondent was 11 years old when her father died. I believe that she would have had an expectation of support from the deceased throughout her school years and at least until she turned 21 years old. This is the equivalent of 10 years from the date of death.
48.Doing as best I can on the little information before me, I consider that the second respondent would have had an expectation of support from the deceased in the order of $150 per week, or $7,800 per year. Over a 10 year period, this would amount to $78,000.
49.The third respondent was 13 years of age at the time of her father’s death. I believe that she would also have had an expectation of support from the deceased throughout her school years and at least until she turned 21 years old. This is the equivalent of eight years from the date of death.
50.Applying the same principles discussed above, she would have had an expectation of support from the deceased in the order of $150 per week, or $7,800 per year. Over a period of eight years, this would amount to $62,400.
51.The fourth respondent was only 3.5 years old at the time of her father’s death. Her expectation would have been for a further 17.5 years, and if I was to apply the same rate of $150 per week, or $7,800 per year, her entitlement would amount to $136,500. Whilst this sum might seem excessive, she is still only an infant, and it must be borne in mind that the value of her entitlement will diminish with inflation over time. This means that the first respondent will be entitled to the balance of $557,600.
52.These amounts differ from those referred to in submissions and the proposed agreement between the parties. Nevertheless, I consider that they more appropriately reflect the respective expectations and entitlements of the parties.
53.Accordingly, I apportion the lump sum payment pursuant to s 29 of the 1987 Act as follows:
(a) $557,300 to Jagdish Kaur (66.81%);
(b) $78,000 to Harkirat Kaur (9.35%);
(c) $62,400 to Parleen Kaur (7.48%), and
(d) $136,500 to Simran Kaur (16.36%).
Interest
54.The applicant is to pay interest of $5,000 pursuant to s 109 of the 1998 Act as per the agreement as follows:
(a) $3,340.50 to Jagdish Kaur (66.81%);
(b) $467.50 to Harkirat Kaur (9.35%);
(c) $374 to Parleen Kaur (7.48%), and
(d) $818 to Simran Kaur (16.36%).
FINDINGS
55.The deceased worker, Baljinder Singh, died on 1 February 2021 as a result of injuries sustained during the course of his employment with the applicant.
56.Jagdish Kaur, Harkirat Kaur, Parleen Kaur and Simran Kaur were wholly dependent for support upon the deceased at the date of death.
57.The deceased had no other persons dependent on him.
58.The applicant is liable for the payment of lump sum compensation and interest.
ORDERS
59.The names of the second, third and fourth respondents are amended to Vijay Kumar as tutor of Harkirat Kaur, Harjeet Kaur as tutor Parleen Kaur and Navjot Singh as tutor of Simran Kaur respectively.
60.The lump sum compensation of $834,200 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) $557,300 to Jagdish Kaur;
(b) $78,000 to Harkirat Kaur;
(c) $62,400 to Parleen Kaur, and
(d) $136,500 to Simran Kaur.
61.The interest in the agreed sum of $5,000 payable pursuant to s 109 of the 1998 Act is to be apportioned as follows:
(a) $3,340.50 to Jagdish Kaur;
(b) $467.50 to Harkirat Kaur;
(c) $374 to Parleen Kaur, and
(d) $818 to Simran Kaur.
62.The applicant is to pay lump sum compensation and interest in the sum of $560,640.50 to Jagdish Kaur pursuant to s 85A(1)(a) of the 1987 Act and s 109 of the 1998 Act.
63.The applicant is to pay lump sum compensation and interest in the sum of $78,467.50 to the New South Wales Trustee and Guardian to hold on trust until Harkirat Kaur attains the age of 18 years pursuant to s 85(1)(c) of the 1987 Act and s 109 of the 1998 Act.
64.The applicant is to pay lump sum compensation and interest in the sum of $62,774 to the New South Wales Trustee and Guardian to hold on trust until Parleen Kaur attains the age of 18 years pursuant to s 85(1)(c) of the 1987 Act and s 109 of the 1998 Act.
65.The applicant is to pay lump sum compensation and interest in the sum of $137,318 to the New South Wales Trustee and Guardian to hold on trust until Simran Kaur attains the age of 18 years pursuant to s 85(1)(c) of the 1987 Act and s 109 of the 1998 Act.
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