Kary v Red Metal Limited

[2024] NSWPIC 250

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Kary v Red Metal Limited & Ors [2024] NSWPIC 250

APPLICANT:

Lala Kary

FIRST RESPONDENT:

Red Metal Limited

SECOND RESPONDENT:

Edward Kary

THIRD RESPONDENT:

Nicholas Kary

FOURTH RESPONDENT:

Alexander Kary

SENIOR MEMBER:

Kerry Haddock

DATE OF DECISION:

14 May 2024

CATCHWORDS:

WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum death benefit and interest on lump sum; worker was a geologist who suffered “heart attack injury” while working on a mineral exploration site in the northern territory; liability disputed; applicant claimed that the worker sustained injury in the course of employment/arising out of employment, or in the alternative a “disease injury”; and sections 9a and 9b were satisfied; evidence that the worker was working in temperature exceeding 42 degrees Celsius and had complained about the heat prior to his death; medical evidence that heat was a substantial contributing factor to heart attack injury; consideration of Fisher v Nonconformist Pty Ltd, Secretary, Department of Communities and Justice v Galea, Seltsam Pty Limited v McGuiness, and Kennedy Cleaning v Petkoska; Held – the worker sustained injury in the course of employment, to which employment was a substantial contributing factor; section 9b satisfied; first respondent liable for payment of lump sum death benefit pursuant to section 25(1); matter listed for further preliminary conference to deal with issues relating to dependency, apportionment and interest.

DETERMINATIONS MADE:

The Commission determines:

1.      The worker, Gregory Lawrence Kary, died on 12 December 2018 as a result of injury in the course of his employment with the first respondent.

2. The first respondent is liable for payment of the lump sum death benefit of $798,100, pursuant to s 25(1) of the Workers Compensation Act 1987.

3.     The matter is to be listed for further preliminary conference in order to deal with issues relating to dependency, apportionment, and interest. 

STATEMENT OF REASONS

BACKGROUND

1. The applicant, Lala Kary (Ms Kary) is the widow of Gregory Lawrence Kary (the worker/Greg), who was employed by the first respondent, Red Metal Limited (Red Metal) as a geologist.  

2. Alexander Kary, Nicholas Kary, and Edward Kary are the sons of the applicant and the worker. I will refer to them by their given names, to avoid confusion, meaning no disrespect.

3. The worker, who was employed by Red Metal as a geologist, died on 12 December 2018, from a thrombotic occlusion, while he was working at a camp southeast of Tennant Creek in the Northern Territory (NT).

4. On 3 July 2019, the applicant completed a Notification Form to Insurance and Care NSW (icare), in which she advised that she was making a claim for death benefits and attached a copy of the Coroner’s Report.

5. On 7 January 2020, EML, as agent for icare, issued the applicant with a notice pursuant to
   s 78 of the Workplace Injury Management and Workers Compensation Act 1998. 

6. EML advised the applicant that the evidence on file did not support that the worker’s employment with Red Metal gave rise to…