Killoran Agricultural v Ryan
[2021] NSWPIC 17
•12 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Killoran Agricultural v Ryan [2021] NSWPIC 17 |
| APPLICANT: | A I Macdonald, H R Macdonald, J E Macdonald & S M Macdonald t/as Killoran Agricultural |
| RESPONDENT: | Suzanne Jane Ryan |
| SECOND RESPONDENT: | Adam Michael Ryan |
| THIRD RESPONDENT: | Corey Raymond Ryan |
| FOURTH RESPONDENT: | Cole James Ryan |
| FIFTH RESPONDENT: | Deidre Amy Briggs |
| SIXTH RESPONDENT: | Ann Letitia Heath as guardian for Letitia Eileen Ryan |
| MEMBER: | Anthony Scarcella |
| DATE OF DECISION: | 12 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- entitlement to lump sum death claim compensation under section 25(1)(a) of the 1987 Act; dependency; TNT Group 4 Pty Ltd v Halioris and Kaur v Thales Underwater Systems Pty Ltd considered and applied; Held- the deceased worker died on 13 October 2020 as a result of injuries arising out of or in the course of his employment with the applicant/employer on 13 October 2020; the first respondent was partly dependent for support on the deceased worker at the date of his death; there were no other persons dependent for support on the deceased worker; the applicant/employer is liable for the payment of lump sum compensation under section 25(1)(a) of the 1987 Act and the payment of interest under section 109 of the 1998 Act. |
| DETERMINATONS MADE: | 1. The deceased worker, Michael Patrick Ryan, died on 13 October 2020 as a result of injuries arising out of or in the course of his employment with the applicant/employer on 13 October 2020. 2. Suzanne Jane Ryan was partly dependent for support on the deceased worker at the date of his death. 3. There were no other persons dependent for support on the deceased worker. 4. The applicant/employer is liable for the payment of lump sum compensation under section 25(1)(a) of the Workers Compensation Act 1987 and the payment of interest under section 109 of the Workplace Injury Management and Workers Compensation Act 1998. |
| ORDERS MADE | 1. The applicant/employer’s application to join Deidre Amy Briggs as a party to these proceedings dated 4 March 2021 is granted and the document attached thereto is admitted into evidence. 2. The applicant/employer’s application to join Ann Letitia Heath as guardian for Letitia Eileen Ryan as a party to these proceedings dated 4 March 2021 is granted and the documents attached thereto are admitted into evidence. 3. The lump sum compensation payable by the applicant/employer under section 25(1)(a) of the Workers Compensation Act 1987 in the sum of $834,200 is to be paid to Suzanne Jane Ryan. |
STATEMENT OF REASONS
BACKGROUND
The Application in Respect of Death of a Worker (Application) dated 23 December 2020 was filed in the Workers Compensation Commission, now the Workers Compensation Division of the Personal Injury Commission (the Commission) by A I Macdonald, H R Macdonald, J E Macdonald and S M Macdonald t/as Killoran Agricultural (the applicant/employer) and relates to the death of Michael Patrick Ryan (the deceased worker).
The deceased worker died on 13 October 2020 as a result of injuries arising out of or in the course of his employment with the applicant/employer on the same date. Liability was accepted by the applicant/employer’s insurer, Employers Mutual NSW Limited (EML).
The first respondent, Mrs Suzanne Jane Ryan is the spouse of the deceased worker.
The second respondent, Mr Adam Michael Ryan is the adult son of the deceased worker.
The third respondent, Mr Corey Raymond Ryan is the adult son of the deceased worker.
The fourth respondent, Mr Cole James Ryan is the adult son of the deceased worker.
The fifth respondent, Deidre Amy Briggs is the former spouse of the deceased worker.
Mrs Letitia Eileen Ryan is the mother of the deceased worker. Ann Letitia Heath as guardian for Letitia Eileen Ryan is the sixth respondent.
The Application sought an apportionment of the lump sum entitlement under section 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act) between the deceased’s dependents.
PROCEDURE BEFORE THE COMMISSION
The parties participated in a teleconference on 3 February 2021. Mr Michael Stiles, solicitor appeared for the applicant/employer and Ms Kavita Balendra of counsel appeared for the first, second, third and fourth respondents.
During the conciliation phase of the teleconference on 3 February 2021, it became clear from the evidence attached in the Reply that two potential dependents of the deceased worker had not been joined to the proceedings, namely, Deirdre Amy Briggs, the former spouse of the deceased worker and Letitia Eileen Ryan, the mother of the deceased worker. Accordingly, I adjourned the teleconference to 10 March 2021 and made the following directions:
1. “By 10 February 2021, the respondents’ legal representative is directed to provide the applicants’ legal representative the addresses of the following potential dependents of the deceased worker, Michael Patrick Ryan:
(a)Letitia Eileen Ryan, mother of the deceased worker.
(b)Deidre Amy Ryan, former spouse of the deceased worker.
2. The applicant is directed to join Letitia Eileen Ryan and Deidre Amy Ryan as respondents in these proceedings by 17 February 2021.
3. The parties are directed to serve any documents which they intend to include in an Application to Admit Late Documents on the other party as soon as practically possible following receipt.
4. The matter is listed before me for a further teleconference on 10 March 2021 at 2:00 pm.”
At the adjourned teleconference on 10 March 2021, Mr Michael Stiles, solicitor appeared for the applicant/employer and Ms Kavita Balendra of counsel appeared for the first, second, third and fourth respondents. There was no appearance on behalf of the fifth and sixth respondents.
At the teleconference on 10 March 2021, the applicant/employer’s application to join Deidre Amy Briggs as a party to the proceedings dated 4 March 2021 was granted and the document attached thereto was admitted into evidence. The applicant/employer’s application to join Ann Letitia Heath as guardian for Letitia Eileen Ryan as a party to the proceedings dated 4 March 2021 was granted and the documents attached thereto were admitted into evidence.
During the conciliation phase at the adjourned teleconference on 10 March 2021, the parties agreed and proposed, subject to my findings on the evidence, as follows:
(a) The lump sum compensation payable by the applicant/employer under section 25(1)(a) of the Workers Compensation Act 1987 in the sum of $834,200 is to be paid to Suzanne Jane Ryan.
(b) The applicant/employer is to pay interest on the lump sum of $834,200 calculated from 6 November 2020 to 10 February 2021 at the rate of 2% per annum, being the sum of $5,210.89 to Suzanne Jane Ryan.
At the conclusion of the conciliation phase, I advised those present to make oral submissions on the evidence and was informed that the participants were prepared to have me consider the matter ‘on the papers’.
My role is not to ‘rubber stamp’ any agreement reached between the parties in a death claim. I must satisfy myself on the evidence and make findings in respect of death as a result of injuries arising out of or in the course of employment; dependency; and apportionment, if relevant.
I indicated to the parties that, having had the opportunity to review the evidence, including the more recent evidence of the fifth and sixth respondents, I was satisfied that I could make the necessary findings in accordance with their agreement but that I would provide short written reasons following the teleconference.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application dated 23 December 2010 and attached documents;
(b) Reply dated 2 February 2021 and attached documents;
(c) Application to Join a Party to Proceedings (Deirdre Amy Briggs) dated 4 March 2021 and attached document;
(d) Application to Join a Party to Proceedings (Ann Letitia Heath as guardian for Letitia Eileen Ryan) dated 4 March 2021 and attached documents.
Oral Evidence
Neither party sought leave to adduce oral evidence from or to cross-examine any witness.
Mrs Suzanne Jane Ryan’s evidence
In evidence, there is a statement by Mrs Suzanne Jane Ryan dated 2 February 2021,[1] which may be summarised as follows:
[1] Reply at pages 1-2
(a)Mrs Ryan is currently aged 48 years.
(b) Mrs Ryan is presently employed by Southern Cross Aged Care Facility in Leeton, where she has worked for the past 20 years. She is currently employed as a Lifestyle Co-Ordinator and her duties involve dressing, cleaning, meal preparation, personal care and arranging daily activities for residents. She earns about $1,500 net per fortnight.
(c) In 2009, in the course of her employment, she sustained a back injury, that has continued to deteriorate. She expressed her concern about being able to continue in her current employment because of the worsening condition in her back. She also expressed concern about obtaining work elsewhere due to her age, lack of education and geographical location.
(d) Mrs Ryan commenced a relationship with the deceased worker in 2006 and they were married on 3 June 2017.[2]
(e) Mrs Ryan was aware that the deceased worker had been previously married to Ms Briggs and that they divorced on 5 July 1994.[3] There were three children of that marriage, Adam, Corey and Cole. As far as Mrs Ryan was aware, Ms Briggs, Adam, Corey and Cole were not financially dependent on the deceased worker at the time of his death.
(f) The deceased worker’s mother, Letitia Eileen Ryan, is about 94 years of age and resides at the Carramar Nursing Home in Leeton. As far as Mrs Ryan was aware, Letitia Ryan is financially well off and was not dependent on the deceased worker at the time of his death.
(g) The deceased worker was employed by the applicant/employer as a truck driver/farmhand and earned between $1,000 and $2,000 net per week. As the deceased worker earned more than Mrs Ryan, he made a larger contribution to their ordinary expenses. Each week he would provide Mrs Ryan with $300 to pay bills and groceries.
(h) In 2015, the deceased worker and Mrs Ryan purchased a house in Leeton as joint tenants. The deceased worker paid $500 per fortnight on the mortgage and Mrs Ryan paid $240 per fortnight. In 2013, Mrs Ryan inherited $210,000 on the death of her father. She received financial advice and the inheritance was deposited into the deceased worker’s AMP Super Account and from 2015, the deceased worker was able to withdraw $19,000 from the superannuation account and paid it towards the mortgage on the Leeton property. The mortgage was discharged in early 2020.
(i) The deceased worker, died as a result of a workplace accident on 13 October 2020.[4] Mrs Ryan received a $202,565 superannuation and insurance death payment on his death.
(j) Mrs Ryan was not aware of any family member or other person who was morally or financially dependent on the deceased worker at the time of his death, apart from herself.
(k) The deceased worker used to perform all of the outdoor work, including lawn mowing and maintenance in their home. Mrs Ryan’s back injury prevents her from performing such work around the home and she has been reliant on family and friends in this regard. Eventually, she will have to pay tradespeople to perform the maintenance around the home.
[2] Application at page 1
[3] Reply at pages 4-5
[4] Application at page 6
Mrs Ryan is the sole beneficiary under the deceased worker’s will.[5]
[5] Application at pages 2-5
Mr Adam Michael Ryan’s evidence
In evidence, there is a statutory declaration made by Mr Adam Michael Ryan (Adam)[6], which may be summarised as follows:
(a) Adam is currently aged 40 years.
(b) Adam is presently employed by Woolworths Limited.
(c) Adam’s father, the deceased worker, died as a result of a workplace accident on 13 October 2020.
(d) At the time of his father’s death, Adam was not financially dependent on him.
(e) Adam did not wish to make a claim in respect of the available workers compensation death benefits relating to his father’s death.
[6] Application at page 9
Mr Corey Raymond Ryan’s evidence
In evidence, there is a statutory declaration made by Mr Corey Raymond Ryan (Corey)[7], which may be summarised as follows:
[7] Application at page 7
(a) Corey is currently aged 38 years.
(b) Corey has been employed by Essential Energy as an electrician for the past 10 years.
(c) Corey’s father, the deceased worker, died as a result of a workplace accident on 13 October 2020.
(d) At the time of his father’s death, Corey was not financially dependent on him.
(e) Corey did not wish to make a claim in respect of the available workers compensation death benefits relating to his father’s death.
Mr Cole James Ryan’s evidence
In evidence, there is a statutory declaration made by Mr Cole James Ryan (Cole)[8], which may be summarised as follows:
(a) Cole is currently aged 35 years.
(b) Cole has been employed by Prolop Tree Services as an electrician for the past 10 years.
(c) Cole’s father, the deceased worker, died as a result of a workplace accident on 13 October 2020.
(d) At the time of his father’s death, Cole was not financially dependent on him.
(e) Cole did not wish to make a claim in respect of the available workers compensation death benefits relating to his father’s death.
[8] Application at page 8
Ms Deidre Amy Briggs’ evidence
In evidence, there is a statutory declaration made by Ms Deidre Amy Briggs[9], which may be summarised as follows:
(a) Ms Briggs is currently aged 62 years.
(b) Ms Briggs married the deceased worker on 4 March 1978. They separated in about 1993 and were divorced in about August 1995. They had three sons to their marriage, Adam Michael Ryan, Corey Raymond Ryan and Cole James Ryan.
(c) Ms Briggs had not been dependent nor received any support from the deceased worker for over 25 years.
(d) Ms Briggs did not wish to make a claim in respect of the available workers compensation death benefits relating to her former spouse’s death.
(e) Ms Briggs did not wish to seek independent advice.
[9] Application to Join a Party (Briggs) at page 2
Mrs Ann Letitia Heath’s evidence
In evidence, there is a statutory declaration made by Mrs Ann Letitia Heath[10], which may be summarised as follows:
(a) Mrs Heath is the daughter of Mrs Letitia Eileen Ryan, the mother of the deceased worker.
(b) Mrs Letitia Ryan is currently aged 94 years and resides in an aged care facility. She has failing eyesight.
(c) Mrs Heath is Mrs Letitia Ryan’s Enduring Guardian and holds her Power of Attorney.[11]
(d) Mrs Heath had read the letter from Stiles Lawyers dated 9 February 2021[12] and discussed its contents with her mother, who did not wish to make a claim in respect of the available workers compensation death benefits relating to her son’s death.
(e) Mrs Heath is independently aware and her mother confirmed to her that the latter has not been dependent on the deceased worker for many years.
[10] Application to Join a Party (Heath) at page 2
[11] Application to Join a Party (Heath) at pages 4-7
[12] Application to Join a Party (Heath) at page 10-11
FINDINGS AND REASONS
The Commission must satisfy itself that the respondents were dependent for support on the deceased at the date of his death and that there were no other dependents. In this matter, the only relevant respondent is Mrs Ryan, the other respondents having denied, in their evidence, that they were dependent for support on the deceased worker at the date of his death. Further, they relinquished any entitlement to claim in this matter.
Dependants are defined in section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) as those 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. The definition includes persons to whom the worker stands in the place of a parent, persons who stand in the place of a parent to the worker, divorced spouses and de facto partners. “Member of a family” is defined in section 4 to mean wife or husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother or half-sister. As the spouse of the deceased worker, Mrs Ryan falls within the class of persons in the definition.
The Workers Compensation Legislation Amendment (Benefits) Act 2008, in respect of the payment of a lump sum death benefit, removed the distinction between those who were wholly dependent and those who were partially dependent. In addition, if there are no dependants, then the worker’s legal personal representative is entitled to receive the lump sum payment for distribution as part of the worker’s estate.
In TNT Group 4 Pty Ltd v Halioris (1987) 3 NSWCCR 10 (Halioris), McHugh JA said of the concept of “dependency for support”:
“Dependency is a question of fact: Potts v Niddrie & Benhar Coal Co Ltd [1913] AC 531 at 539, 542; Aafjes v Kearney (1976) 50 ALJR 454 at 456, 457, 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, 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.” (at [14])
In Kaur v Thales Underwater Systems Pty Ltd [2011] NSWCCPD 6, President Keating stated that 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; past events and future probabilities have to be considered.
I am satisfied on the evidence that Mrs Ryan was the spouse of the deceased worker at the time of his death and that she was partially dependent for support on the deceased worker at the date of his death. The deceased worker provided her with financial and emotional support, and she had a reasonable expectation of support in the future.
CONCLUSION
My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.
Anthony Scarcella
MEMBER
12 March 2021
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