Kemenade v Ausgrid Management Pty Ltd
[2024] NSWPIC 538
•30 September 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Kemenade v Ausgrid Management Pty Ltd & Ors [2024] NSWPIC 538 |
| APPLICANT: | Amy Van Kemenade |
| FIRST RESPONDENT: | Ausgrid Management Pty Ltd (incorrectly named as The Trustees for Blue Op Partners Trust & Others |
| SECOND RESPONDENT: | Noah Matthew Van Kemenade |
| THIRD RESPONDENT: | Hunter Grant Van Kemenade |
| SENIOR MEMBER: | Elizabeth Beilby |
| DATE OF DECISION: | 30 September 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim in respect of lump sum death benefits; no dispute that the deceased died as a result of an injury arising out of or in the course of employment with the first respondent; the first respondent conceded liability to pay the lump sum benefit pursuant to section 25(1)(a); parties were able to agree on a proposed apportionment of the lump sum benefit; Held –proposed apportionment was appropriate after considering the circumstances of dependency of each party; orders made in relation to funds management expenses for management of the relevant lump sums by the NSW Trustee and Guardian. |
| DETERMINATIONS MADE: | The Commission determines: 1. I find that the applicant, second and third respondents were dependent for support upon the deceased, Grant Van Kemenade, at the date of his death on 13 May 2024. 2. There was no other person dependent upon the deceased at the date of death. 3. The lump sum benefit payable in accordance with s 25(1)(a) of the Workers Compensation Act 1987 as of the date of death was $929,200. 4. Pursuant to s 29(1)(a) of the Workers Compensation Act 1987, the lump sum benefit is to be apportioned in the following manner: (a) $650,440 to the applicant; (b) $162,610 to the second respondent, and (c) $116,150 to the third respondent. 5. Pursuant to s 85A of the Workers Compensation Act 1987, the sum apportioned in favour of the applicant is to be paid directly to her. 6. I direct that the entitlements of the second and third respondents are to be paid to the NSW Trustee and Guardian until the second and third respondents reach the age of 18 respectively. 7. Pursuant to s 25(1A) of the Workers Compensation Act 1987, Ausgrid to meet the costs of fund management with the NSW Public Trustee, as follows: (a) Second respondent - lump sum - $162,610, s 25 (1A) estimated in the sum of $26,130.63 (final figure to be calculated by the Trustee on deposit of the funds). (b) Third respondent lump sum - $116,150, s 25 (1A) estimated in the sum of $7,601 (final figure to be calculated by the Trustee on deposit of the funds). 8. There is no claim for interest on the lump sum benefit. |
STATEMENT OF REASONS
BACKGROUND
Mr Grant Van Kemenade (the deceased) died in the course of his employment on
13 May 2024. The employer (the first respondent) 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).The applicant was married to Mr Grant Van Kemenade and the second and third respondents are children of the marriage. They all lived together in the family home.
The only substantive issues for determination are the questions of dependency and apportionment of the death benefit to the respective applicants.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) dependency at the time of death, and
(b) apportionment of the lump sum death benefit.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The claim was listed in the Personal Injury Commission (Commission) for a telephone conference on 13 September 2024. The parties were able to agree to a proposed resolution of the substantive issues at that time.
Following the telephone conference there was communication between the parties as to the form of Orders relating to the funds management fees for the second and third respondents. The parties were content to have a “General Order” regarding funds management fees however it was indicated that a discrete figure needed to be calculated.
The Order regarding funds management fees takes into account any additional fees that are permitted depending upon the specific age of each child at the time the fees are deposited.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Replies and attached documents.
Oral evidence
There was no application to adduce oral evidence.
FINDINGS AND REASONS
A dependent 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”.
A reasonable expectation that the deceased would provide future support can satisfy the concept of dependency.[1]
[1] TNT Group 4 Pty Ltd v Halioris (1987) 8 NSWLR 486 at [490].
The applicant was married to the deceased at the time of his death. The applicant’s evidence outlines the support the deceased gave to her which included financial dependency together with household and domestic assistance. There is no doubt that the applicant was significantly dependent upon the deceased as at the time of death. They were in a happy marital relationship and lived together sharing expenses.[2]
[2] See applicant’s submission dated 19 July 2024 and Statutory Declaration dated 18 July 2024.
The second respondent is in Year 5 at school. He is in good health but may require dental treatment in the near future. [3] He is a skilled sportsman who may attend a selective High School. There are no developmental or significant medical issues.
[3] Statutory Declaration dated 18 July 2024.
The third respondent is in Year 12 at school and is completing a school based electrical apprenticeship. He is considering completing his trade outside of school. He is in good health and has no special needs. He continues to reside with his mother and brother in the family home.
I find that both the second and third respondent were dependent upon the deceased as at the date of death.
There is no evidence in the documents before me that identifies any other person who could be considered to be potentially or actually dependent upon the deceased as at the date of death.
At the telephone conference, the parties were able to agree to a proposed distribution of the lump sum benefit. I find that the proposed resolution is appropriate and fair in the circumstances. It takes into account the lengthy and loving marriage, the close relationship both the second and third respondents had with their father, their age and actual partial dependency at the date of death and also the anticipation of financial assistance into the future.
I endorse the proposed distribution of the lump sum benefit as agreed between the parties.
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