Kirkpatrick v Ellerston Pty Limited
[2022] NSWPIC 55
•9 February 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Kirkpatrick v Ellerston Pty Limited [2022] NSWPIC 55 |
| APPLICANT: | Cathy Sarah Kirkpatrick |
| FIRST RESPONDENT: | Ellerston Pty Limited |
| SECOND RESPONDENT: | Alec Colin Kirkpatrick by his tutor Karen McLanachan |
THIRD RESPONDENT: | Henry Guy Kirkpatrick by his tutor Craig O’Brien |
| MEMBER: | Kerry Haddock |
| DATE OF DECISION: | 9 February 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for death benefit and apportionment pursuant to sections 25 and 29 of the Workers Compensation Act 1987 (1987 Act) by the widow and children of the deceased worker; liability accepted; parties agreed on proposed apportionment; Wratten v Kirkpatrick considered and applied; Held - lump sum apportioned as to 70% to applicant; 15% to second respondent; and 15% to third respondent; first respondent to pay the sum of $583,940 to the applicant pursuant to section 85A(1)(a) of the 1987 Act; first respondent to pay the sum of $125,130 to the NSW Trustee and Guardian to be held on trust pursuant to section 85(1)(a) of the 1987 Act for the second respondent until he attains the age of 18 years; first respondent to pay the sum of $125,130 to the NSW Trustee and Guardian to be held on trust pursuant to section 85(1)(a) of the 1987 Act for the third respondent until he attains the age of 18 years. |
| DETERMINATIONS MADE: | 1. That the deceased worker, Guy Colin Kirkpatrick, died on 7 January 2021, as a result of injuries arising out of or in the course of his employment with the first respondent on 7 January 2021. 2. That the applicant, Cathy Sarah Kirkpatrick, the second respondent, Alec Colin Kirkpatrick, and the third respondent, Henry Guy Kirkpatrick, were dependent for support on the worker at the date of his death. 3. That there were no other persons dependent for support on the worker at the date of his death. 4. That the first respondent is liable for the payment of lump sum compensation. |
| ORDERS MADE: | 1. That the lump sum compensation of $834,200, payable pursuant to section 25(1)(a) of the Workers Compensation Act 1987 is to be apportioned in accordance with section 29 of the Workers Compensation Act 1987 as follows: (a) Cathy Sarah Kirkpatrick: 70%; (b) Alec Colin Kirkpatrick: 15%, and (c) Henry Guy Kirkpatrick: 15%. 2. That the first respondent is to pay the sum of $583,940 to the applicant pursuant to section 85A(1)(a) of the Workers Compensation Act 1987. 3. That the first respondent is to pay the sum of $125,130 to the NSW Trustee and Guardian to be held on trust pursuant to section 85(1)(a) of the Workers Compensation Act 1987, until the second respondent, Alec Colin Kirkpatrick, attains the age of 18 years. 4. That the first respondent is to pay the sum of $125,130 to the NSW Trustee and Guardian to be held on trust pursuant to section 85(1)(a) of the Workers Compensation Act 1987, until the third respondent, Henry Guy Kirkpatrick, attains the age of 18 years. |
STATEMENT OF REASONS
BACKGROUND
The worker, Guy Colin Kirkpatrick, was employed by the first respondent, ElIerston Pty Limited. He was killed on 7 January 2021, when machinery he was operating in the course of his employment overturned, crushing him.
The first respondent’s insurer, Insurance & Care NSW (iCare), has accepted liability to pay compensation in respect of Mr Kirkpatrick’s death.
Mr Kirkpatrick’s widow, Mrs Cathy Sarah Kirkpatrick (the applicant) has filed an Application in Respect of Death of Worker (the Application), seeking apportionment of the death benefit. The second and third respondents are the sons of Mr and Mrs Kirkpatrick. Alec is six years old, and Henry is eight years old.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains to be determined:
(a) the apportionment of the death benefit between the applicant, the second respondent and the third respondent.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for telephone conference on 7 February 2022. Mr Jones appeared for the applicant; Mr Studdert appeared for the first respondent; Mr McKessar appeared for the second respondent; and Mr Kelly appeared for the third respondent. Mrs Kirkpatrick,
Ms McLanachan and Mr O’Brien also attended. Ms Ryder of EML and Ms Dean of iCare were present.The parties advised me that they had discussed apportionment of the death benefit and had agreed on proposed orders. The first respondent did not seek to make submissions on apportionment.
The issue of interest on the lump sum was raised by Mr McKessar, interest not having been claimed in the Application. The first respondent advised that it would seek to be heard in respect of any claim for interest. Neither the applicant nor the second and third respondents sought to claim interest.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the Application and attached documents;
(b) First Respondent’s Reply and attached documents;
(c) Second Respondent’s Reply and attached documents, and
(d) Third Respondent’s Reply and attached documents.
FINDINGS AND REASONS
In view of the parties’ agreement, it is unnecessary that I discuss the evidence in detail.
Mrs Kirkpatrick has relocated her family to New Zealand, where she is in the process of purchasing a farm from the worker’s parents. She intends to live in the homestead with the children and lease the remaining area. She hopes the children will operate the farm and acquire it when they are older.
Neither Alec nor Henry has special needs, although Mrs Kirkpatrick would like to arrange private speech therapy for Alec. The boys are less than two years apart in age.
SUMMARY
Dependency and apportionment
Section 25 of the 1987 Act provides:
“(1) If death results from an injury, the amount of compensation payable by the employer under this Act shall be--
(a) the amount of $750,000 (the “lump sum death benefit”), which is to be apportioned among any dependants who are wholly or partly dependent for support on the worker or (if there are no such dependants) paid to the worker's legal personal representative, and
(b) in addition, an amount of $66.60 per week in respect of--
(i) each dependent child of the worker under the age of 16 years, and
(ii) each dependent child of the worker being a student over the age of 16 years but under the age of 21 years.
(2) Payments in respect of a dependent child under subsection (1) (b) shall continue--
(a) except as provided by paragraph (b)--until the child dies or reaches the age of 16 years, whichever first occurs, or
(b) in the case of a dependent child who is a student at the time of the worker's death or after reaching the age of 16 years--until the child dies, reaches the age of 21 years or ceases to be a student, whichever first occurs.
(3) The amount of any weekly payments, or other compensation payable under this Act, shall not be deducted from the amounts referred to in subsection (1) (a) or (b).
(4) If an amount mentioned in subsection (1) (a) at any time after the commencement of this Act--
(a) is adjusted by the operation of Division 6, or
(b) is adjusted by an amendment of this section,
the compensation payable under subsection (1) (a) is to be calculated by reference to the amount in force at the date of death.
(4A) If the death of a worker results both from an injury received before the adjustment of an amount mentioned in subsection (1) (a) and an injury received after that adjustment, the worker shall, for the purposes of subsection (1) (a), be treated as having died as a result of the injury received after that adjustment.
(5) In this section--
“child of the worker” means a child or stepchild of the worker and includes a person to whom the worker stood in the place of a parent.
“dependent child of the worker” means a child of the worker who was wholly or partly dependent for support on the worker.
“student” means a person receiving full-time education at a school, college or university.”The first respondent does not dispute dependency. Having regard to the evidence of the applicant, and that the second and third respondents are minor children of the applicant and the worker, I am satisfied that they were dependent on the worker at the date of his death.
I am satisfied that there were no other persons either wholly or partly dependent on
Mr Kirkpatrick at the date of his death, so that the lump sum death benefit of $834,200 pursuant to section 25(1)(a) of the 1987 Act will be apportioned between the applicant and the second and third respondents, pursuant to section 29(1) of the Act.Turning to the issue of apportionment, the factors relevant to apportionment are set out in the judgment of Egan ACCJ in Wratten v Kirkpatrick [1996] NSWCC2; (1996) 15 NSWCCR 32.
Egan ACCJ said:
“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.” (at [34] – [35])
Each case depends on its own facts and requires an examination of those facts. The parties have come to a preliminary agreement in relation to apportionment of the lump sum death benefit. They have clearly considered the needs of the children, and that the benefit apportioned to Mrs Kirkpatrick will also benefit Alec and Henry, in that she will be able to provide them with a home and the future she desires for them. I see no reason why I should apportion the benefit other than in accordance with their agreement.
The determinations and orders are as set out in the Certificate of Determination.
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