Kerslake v State of New South Wales (Ambulance Service of NSW)
[2023] NSWPIC 43
•6 February 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Kerslake v State of New South Wales (Ambulance Service of NSW) & others [2023] NSWPIC 43 |
| APPLICANT: | Kristen Leigh Kerslake |
| FIRST RESPONDENT: | State of New South Wales (Ambulance Service of NSW) |
| SECOND RESPONDENT: | Ella Madison Ryder |
| Member: | Rachel Homan |
| DATE OF DECISION: | 6 February 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; application for apportionment of lump sum death benefit, weekly payments and funeral expenses in respect of the death of a worker; identification of dependants; Held – the applicant and second respondent were the only dependants of the deceased worker; orders for payment of the lump sum pursuant to sections 25(1)(a), 29(1), 85A; orders for payment of weekly compensation in respect of a dependent child being a student over the age of 16; orders for funeral expenses; costs. |
| determinations made: | 1. The deceased worker, Megan Louise Kerslake, died on 25 December 2019 as a result of injury arising out of her employment with the respondent. 2. Kristen Leigh Kerslake and Ella Madison Ryder were dependants of the deceased worker who were wholly or partly dependent for support upon the deceased worker at the date of her death. 3. There were no other persons wholly or partly dependent for support upon the deceased worker at the date of death. 4. The lump sum death benefit payable in accordance with s 25(1)(a) of the Workers Compensation Act 1987 is $816,850. 5. The lump sum death benefit is apportioned pursuant to s 29(1) of the Workers Compensation Act 1987 as follows: a. $408,425 (50%) to Kristen Leigh Kerslake, and b. $408,425 (50%) to Ella Madison Ryder. 6. The second respondent was, in the period from 25 December 2019 to 2 February 2021, a dependent child of the deceased worker being a student over the age of 16 years but under the age of 21 years pursuant to s 25(1)(b)(ii) of the Workers Compensation Act 1987. The Commission orders: 1. The first respondent to pay $408,425 to Kristen Leigh Kerslake pursuant to ss 25(1)(a) and 85A(1)(a) of the Workers Compensation Act 1987. 2. The first respondent to pay $408,425 to Ella Madison Ryder pursuant to ss 25(1)(a) and 85A(1)(a) of the Workers Compensation Act 1987. 3. The first respondent to pay weekly compensation in respect of the second respondent pursuant to s 25(1)(b)(ii) for the period from 25 December 2019 to 2 February 2021. 4. Pursuant to ss 31(1) and 85A(1)(a) of the Workers Compensation Act 1987, the compensation payable under s 25(1)(b) in respect of second respondent shall be paid to the applicant in a 50% portion and to the second respondent in a 50% portion. 5. Pursuant to s 26 of the Workers Compensation Act 1987, the first respondent to pay compensation equal to reasonable funeral expenses not exceeding $15,000, upon production of accounts and/or receipts. 6. The first respondent to pay the applicant’s and second respondent’s costs as agreed or assessed. |
STATEMENT OF REASONS
BACKGROUND
Ms Megan Louise Kerslake (the deceased worker) died as a result of injury arising out of her employment with the State of New South Wales (Ambulance Service of NSW) (the first respondent) on 25 December 2019. The deceased worker was 44 years old at the time of her death.
Liability to pay compensation in respect of the death has been accepted by the first respondent’s insurer.
Ms Kristen Leigh Kerslake (the applicant) lodged an Application in Respect of Death of Worker in the Personal Injury Commission (the Commission) on 14 September 2022 seeking orders for payment of the lump sum death benefit payable under s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act), funeral expenses and weekly compensation. Ms Ella Madison Ryder was named as the second respondent.
The applicant and the second respondent are the deceased worker’s children.
PROCEDURE BEFORE THE COMMISSION
The parties appeared at conferences on 25 October 2022, 6 December 2022 and
1 February 2022.The applicant was represented on each occasion by Ms Kavita Balendra of counsel, instructed by Ms Katelin Whitley. The second respondent was represented by Mr Bradley Williams of counsel, also instructed by Ms Whitley. The respondent was represented by solicitors from Moray & Agnew.
At the conference on 25 October 2022, directions were made for the lodgement of additional evidence, including evidence of attempts to contact any other member of the deceased worker’s family who may have been dependent on her for support. The second respondent was directed to serve and lodge evidence of study for the purposes of the claim for weekly benefits.
At the conference on 6 December 2022, the time in which the evidence described in the first direction was to be served and lodged was extended.
At the conference on 1 February 2022, directions were made admitting into evidence late documents lodged by the applicant. The parties informed me that, after appropriate enquiries, they were satisfied that there was no person, other than the potential dependants identified in the evidence, who may have been a member of the deceased worker’s family and dependent on her for support.
The parties confirmed that there was no dispute in relation to the applicant’s or the second respondent’s dependence on the deceased worker. Submissions were made by counsel for the applicant and the second respondent on the issue of apportionment.
The parties reached agreement that the amount of the lump sum death benefit payable was $816,850. In particular, noting that the deceased worker was an exempt worker, the parties agreed that the amendments made by the Workers Compensation Amendment Act 2015 to ss 25 and 26 of the 1987 Act did apply, having regard to the transitional provision in cl 14(2) of Part 19I to the 1987 Act.
Counsel for the applicant and the second respondent confirmed that no order for discretionary interest was sought.
The parties informed me that there was no dispute that the second respondent was a child of the deceased worker, being a student, over the age of 16 years but under the age of 21 years, in the period from the date of death until 2 February 2021, and that weekly compensation was payable in that period.
The applicant and second respondent sought an order that weekly payments should be made in equal portions to the applicant and second respondent pursuant to s 31(1) of the 1987 Act.
An application was made by counsel for the applicant seeking an uplift for complexity in respect of costs. After hearing submissions, that application was declined for reasons given orally and recorded.
ISSUES FOR DETERMINATION
The parties agree that the following matters require determination:
(a) identification of any family members who were wholly or partly dependent for support on the deceased worker in accordance with s 4 of the Workplace Injury Management and Workers Compensation 1998 Act (the 1998 Act);
(b) apportionment of the lump sum death benefit of $816,850;
(c) orders with respect to the liability to pay funeral expenses;
(d) the extent to which weekly benefits are payable pursuant to s 25(1)(b)(ii);
(e) orders for payment of compensation, and
(f) orders as to costs.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application in Respect of Death of Worker and attached documents;
(b) Reply lodged by the first respondent and attached documents;
(c) Reply lodged by the second respondent and attached documents, and
(d) documents lodged by the applicant on 21 December 2022 in compliance with the Commission’s direction of 6 December 2022.
The evidence before me includes the New South Wales death certificate of the deceased worker, which identified the applicant and second respondent as her children.
Evidence, in the form of signed written statements, has been lodged from the deceased worker’s parents, Mr Graham Frederick Kerslake and Mrs Meryl Kay Kerslake, her brother, Mr Christopher Kerslake, and her sister, Ms Lisa Jane Smith. Each of those family members has given evidence that they were not dependent on the deceased worker and did not wish to make any claim for compensation in respect of her death.
A written statement has also been provided by the applicant, dated 6 December 2022, indicating that the deceased worker had been dating a man named Clint Brennan for approximately six weeks prior to her death. The deceased worker and Mr Brennan did not live together and Mr Brennan was not dependent on the deceased worker. Text message correspondence between the applicant and Mr Brennan was attached, in which Mr Brennan was advised of the Commission proceedings and indicated that he did not wish to be involved.
Also before me is a statement from the applicant’s solicitor describing attempts made by her to contact Mr Brennan and bring the proceedings to his attention.
Both the applicant and second respondent have supplied written statements describing their relationship with the deceased worker.
The applicant has given evidence that she was 27 years old at the time of the deceased worker’s death. The deceased worker and the applicant’s father separated when the applicant was 3 years old. The deceased worker remarried and the second respondent was born when the applicant was 11 years old. The deceased worker and the second respondent’s father separated when the second respondent was 1 year old.
The applicant was employed as a school psychologist. Although the applicant tried to be fairly independent, she maintained a close relationship with the deceased worker and received financial assistance from her. At the time of her death, the deceased worker was contributing to the applicant’s rent, often bought groceries and helped out with electricity and internet bills and other incidentals.
The applicant gave evidence that the second respondent had lived with her since the date of the deceased worker’s death. The applicant had incurred additional expenses associated with caring for the second respondent, her dog and the deceased worker’s dog. The second respondent was entirely dependent on the applicant until she received a superannuation and insurance payout in respect of the deceased worker’s death.
The applicant gave evidence that there was no person other than the second respondent and herself who were dependent on the deceased worker.
The second respondent gave evidence that she was 16 years old at the time of the deceased worker’s death. The second respondent’s parents separated when she was a small child and divorced in 2009. The second respondent retained a good relationship with her father and received some support from him. The deceased worker had been the second respondent’s primary carer. The second respondent visited her father occasionally, usually on weekends. The second respondent described a difficult relationship with her father’s current partner.
The second respondent was living with the deceased worker at the time of her death but often stayed with and was supported by the applicant. The second respondent gave evidence that she had lived with and was dependent on the applicant since the deceased worker’s death.
FINDINGS AND REASONS
Dependants
The term, ‘dependants’ is defined in s 4 of the 1998 Act as:
“the members of the worker’s family as were wholly or in part dependent for support on the worker at the time of the worker’s death, or would but for the incapacity due to the injury have been so dependent.”
I am satisfied on the uncontradicted evidence before me that the applicant and second respondent were the deceased worker’s children and therefore members of her family.
It is also necessary to determine whether the applicant and second respondent were wholly or in part dependent for support on the deceased worker at the time of her death.
In TNT Group 4 Pty Limited v Halioris (1987) 3 NSWCCR 10; 8 NSWLR 486, McHugh JA stated (at [489]):
“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.”
In Richardson v Turfco Australia Pty Ltd [2016] NSWWCCPD 43 (Richardson), Keating P identified a number of general statements of principle for determining dependency at [65]:
“(a) dependency is not limited to the class of persons actually in receipt of financial assistance (Sadiq);
(b) dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased (Amaca Pty Ltd v Novek [2009] NSWCA 50);
(c) although dependency is not limited to financial dependency, it does involve one person being beholden to another for some material or physical help or succour, emotional dependency is not enough (Skinner);
(d) ‘dependent’ in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed (Petrohilos);
(e) a mother’s services to a young child may satisfy the test of dependency. To suggest that, in a money sense they are valueless, is simply wrong (Petrohilos);
(f) while one of the commonest forms of dependence might be financial dependence, the word used in the statute (which I infer is the Conveyancing Act 1919) is not limited to financial dependence (Williams), and
(g) the word ‘partly’ in the phrase ‘partly dependent’, whilst a word of ‘some elasticity’, does not mean ‘substantially’, but means ‘more than minimally’, or perhaps, ‘significantly’ (Bremner v Graham [2016] NSWSC 633 at [34] citing Priestley JA at [4] (with whom Hope AJA agreed) in McKenzie v Baddeley [1991] NSWCA 197) (McKenzie)). Meagher JA, in McKenzie at [6], commented that ‘[c]ommon sense requires that certain trivial activities should be disregarded’.”
I am satisfied on the uncontradicted evidence before me that the applicant and second respondent were each partly dependent for support on the deceased worker at the date of her death.
I am further satisfied that appropriate enquiries have been made and there is no evidence of any other person, apart from the family members identified in the evidence in these proceedings, who may have been dependent on the deceased worker at the time of her death.
The deceased worker’s parents and siblings have each provided evidence that they were not dependent and did not intend to pursue any claim for a portion of the lump sum death benefit after being informed of their ability to make a claim and obtain independent legal advice. There is no evidence of any other family member who may have been dependent upon the deceased worker.
Apportionment
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 (1996) 15 NSWCCR 32 ([at 34]), Egan A-J stated:
“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.”
I have considered the applicant’s and second respondent’s submissions regarding apportionment and note that they are in agreement that the lump sum should be apportioned equally between them.
Whilst the parties’ agreement and wishes are to be given weight, ultimately, I must have regard to all the relevant facts consistently with Wratten v Kirkpatrick and determine for myself what is the appropriate apportionment.
There is a material age difference between the applicant and second respondent. The second respondent was still a minor and studying at the time of the deceased worker’s death. It is reasonable to anticipate that she would have dependent on the deceased worker for a longer period, and to a greater extent, had it not been for the deceased worker’s death. The material before me also discloses some particular health challenges for the second respondent.
Although these considerations suggest that the second respondent should receive a greater portion of the death benefit, I accept that the second respondent has been and remains dependent on the applicant for physical and financial support, particularly after their mother’s death. I am satisfied that this should be reflected in the apportionment of the lump sum and accept that an equal apportionment is appropriate, in the particular circumstances of this case.
The applicant and second respondent are each over the age of 18 at the date of this determination. They have requested, and I am satisfied that it is appropriate, that the lump sum death benefit be paid to them directly, pursuant to s 85A(1)(a) of the 1987 Act.
Weekly payments
Section 25(1)(b)(ii) of the 1987 Act provides that if death results from an injury, the compensation payable by the employer shall include a weekly amount for each dependent child of the worker being a student over the age of 16 years but under the age of 21 years.
The expression, “dependent child of the worker”, means a child of the worker who was wholly or partly dependent for support on the worker. The term, “student”, means a person receiving full-time education at a school, college or university.
Weekly payments are to continue in the case of a dependent child who is a student at the time of the worker’s death until the child dies, reaches the age of 21 years or ceases to be a student, whichever first occurs.
The evidence before me indicates that the second respondent was a dependent child of the deceased worker who was 16 years old at the time of the deceased worker’s death. A Certification of Enrolment from Singleton High School confirms that the second respondent was enrolled at the school from 3 February 2020 to 2 February 2021. The second respondent has given evidence that she had completed Year 10 at the school just prior to the deceased worker’s death.
On the evidence before me, I am satisfied that weekly compensation at the statutory rate is payable in respect of the second respondent from 25 December 2019 to 2 February 2021 in accordance with ss 25(1)(b)(ii) and 25(2)(b) of the 1987 Act.
Section 31 of the 1987 Act provides:
“(1) Compensation payable under section 25 (1) (b) in respect of a dependent child of a deceased worker shall, unless the Commission otherwise orders—
(a) be paid to the surviving parent of the child concerned, if there is one, or
(b) be paid to the NSW Trustee for the benefit of the child or to any person (approved by the NSW Trustee) having the care or custody of the dependent child, if no such parent survives.
(2) If the Commission makes an order under subsection (1), the compensation is payable in accordance with the order.”
Although the evidence before me indicates that the second respondent has a surviving parent, he has not been her primary care giver since she was an infant. The evidence of both the applicant and second respondent is that the second respondent lived with the applicant and was financially dependent on her following the deceased worker’s death until a superannuation and insurance payout was received.
In those circumstances, I accept the parties’ proposal for orders to be made for the payment of weekly benefits in equal portions to the applicant and second respondent is appropriate. I will make an order pursuant to s 31(1) of the 1987 Act accordingly.
Funeral expenses
Section 26 of the 1987 Act provides;
“If compensation is payable under this Division for a death resulting from an injury, the employer must pay additional compensation equal to reasonable funeral expenses not exceeding $15,000 or such other amount as may be prescribed by the regulations.”
The applicant holds Letters of Administration for the deceased worker’s estate and has provided a receipt for funeral expenses paid. The parties agree and I accept that it is appropriate for a general order to be made pursuant to s 26 of the 1987 Act for the reimbursement of reasonable funeral expenses.
Costs
As the deceased worker was a paramedic and therefore an “exempt worker”, there will be an order in the usual form for the first respondent to pay the applicant’s and second respondent’s costs as agreed or assessed.
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