Kapoor v Soar Aviation

[2022] NSWPIC 652

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Kapoor v Soar Aviation & Ors [2022] NSWPIC 652

APPLICANT:

Ashok Kapoor

FIRST RESPONDENT:

Soar Aviation

SECOND RESPONDENT:

Varun Kapoor

THIRD RESPONDENT:

Adash Kapoor

senior Member:

Elizabeth Beilby

DATE OF DECISION:

24 November 2022

CATCHWORDS:

WORKERS COMPENSATION - Distribution of the lump sum death benefit; Held – approval of proposed distribution.

determinations made:

1.     Mr Saket Kapoor suffered an injury whilst in the employment of the first respondent.

2.     Mr Ashok Kapoor, Mrs Adarsh Kapoor and Mr Varun Kapoor were dependent upon the deceased as at the date of death.

3.     There was no person who was dependent upon the deceased at the date of death.

4.     The lump sum benefit payable is $834,200.

5.     The lump sum of $834,200 is to be paid directly and in equal parts to the three dependants.

STATEMENT OF REASONS

BACKGROUND

1. Mr Saket Kapoor (the deceased) was employed by Soar Aviation (first respondent) as a flight instructor.

2. On 4 November 2020 he was involved in a fatal plane crash near Carcoar in New South Wales.

3. A claim for the lump sum benefit has been lodged by Ashok and Adarsh Kapoor, the deceased’s parents, and Varun Kapoor, his brother. The claimants are all domiciled in India.

ISSUES FOR DETERMINATION

1. The parties agree that the following issue remains in dispute:

   (a)    what persons were considered to be dependent upon the deceased as at the date of death?

2. The application was amended at the hearing of this matter to claim for interest, the parties have been directed to file submissions in regard to this.

EVIDENCE

Documentary evidence

1. The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:

   (a)    Application to Resolve a Dispute and attached documents;

   (b)    Reply to the Application to Resolve a Dispute by the first, second and third respondents, and

   (c)    Application to Admit Late Documents dated 10 August 2022.

PROCEDURE BEFORE THE COMMISSION

1. 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. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

Dependency

1. 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”.

2. A reasonable expectation that the deceased would provide future support can satisfy the concept of dependency.[1] Warilla Timber and Hardware Pty Ltd v Newton[2], Albury Real Estate Pty Ltd v Rouseand Anor[3] provides authority that term “support” in s 25 of the Workers Compensation Act 1987 is not limited to financial support and encompasses other multifactorial aspects including assistance with day-to-day activities and emotional support.

   [1] TNT Group 4 Pty Ltd v Halioris (1987) 8 NSWLR 486 at [490].

   [2] (1995) 11 NSWCCR 546, [554] to [555].

   [3] [2006] NSWWCCPD 139, [45] to [50].

3. Mr Ashok Kapoor has provided evidence of his dependency upon his son in a statement dated 29 July 2021. The statement clearly outlines the financial dependency and assistance Saket Kapoor gave to his father and also his mother. This included, but was not limited to cash payments.

4. Mrs Adarsh Kapoor, the deceased’s mother, has likewise provided a statement in similar terms of her husband, dated 29 July 2021. That statement once again outlines the financial responsibility and contribution that Saket gave to his parents.

5. Considering those statements there is no doubt in my mind that there was financial dependence of Mr and Mrs Kapoor on their son.

6. A statutory declaration from Varun Kapoor dated 29 July 2021 has also been provided in the documents. The statement outlines matters of financial dependency between the two brothers. This included financial assistance between the two brothers when needed help. Indeed, the deceased provided financial assistance for holidays and made a contribution to his brother’s wedding. He also provided a mobile telephone for his brother’s use. I observe that that the brothers had a close relationship as did all family members.

7. I am therefore satisfied that Ashok Kapoor, Adarsh Kapoor and Varun Kapoor were all partially or fully dependent upon the deceased as at the date of death.

8. The documents contain reference to a marriage between the deceased and a person known as Ms Pinky Rana in 2001. That relationship ended in divorce in 2018.

9. The evidence before me indicates that Ms Rana does not wish to be classified as partially or fully dependent upon the deceased as at the date of death nor does the evidence indicate to me that she would be entitled to be classified in either of those categories. It appears a financial settlement occurred and Ms Rana and the deceased were living separately. I therefore find that Ms Rana was not a person who could be or wishes to be classed as partially or fully financially dependent upon the deceased as at the date of death.

10. I am satisfied that the evidence shows that the applicant and the second and third respondents were dependent on the deceased at the time of his death. They all received financial and emotional support from their loved son and brother and there was an expectation that this would have continued but for his death.

11. The family members have agreed to share the lump sum in equal parts, being $278,066.67 each. I think that this is a fair and reasonable distribution of the lump sum benefit. The lump sum should be paid accordingly directly to each dependant.