Koen v Secretary Safework NSW

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Koen v Secretary Safework NSW & Ors [2024] NSWPIC 320
APPLICANT:	Simone Koen
FIRST RESPONDENT: SECOND RESPONDENT: THIRD RESPONDENT:	Secretary Safework NSW Isabella Koen by her tutor David Vincent Koen Madison Koen by her tutor Brendan Stewart Doyle
MEMBER:	Gaius Whiffin
DATE OF DECISION:	18 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); claim for benefits in respect of the death of a worker; apportionment of lump sum payable under section 25(1)(a) of the 1987 Act; entitlement to interest under section 109 of the 1998 Act; how the amounts are awarded to the dependants to be paid in accordance with sections 85 and 85A of the 1987 Act; consideration of statements and statutory declarations, claim correspondence, and factual material; consideration of who was dependent for support on the worker at the date of his death; TNT Group 4 Pty Limited v Halioris considered; consideration of appropriateness of apportionment agreed between the parties; consideration of interest entitlement; Pheeney v Doolan (No 2), Mudgee Explorer Tours Pty Ltd v Clarke, Hu v Rongfar Property Service Pty Ltd, Youseph v Homebush Unit Trust t/as Primo Smallgoods, Kaur v Thales Underwater Systems Pty Ltd considered; Held – no other persons but the applicant, the second respondent and the third respondent were dependent for support on the worker at the date of his death; the apportionment of the lump sum under section 25(1)(a) of the 1987 Act as agreed between the parties is approved; interest under section 109 of the 1998 Act is awarded at the rate of 6.35% per annum from the date when dependency was fully particularised to the first respondent; awards entered in favour of the applicant, the second respondent, and the third respondent accordingly; the monies payable to the second and third respondents are to be paid in trust for their benefit to NSW Police Legacy Limited; award also entered with the agreement of the parties in relation to the worker’s funeral expenses pursuant to section 26 of the 1987 Act; notation made with the agreement of the parties in relation to the weekly payments payable to the second respondent and the third respondent pursuant to section 25(1)(b) of the 1987 Act.
DETERMINATIONS MADE:	The Commission determines: 1. That David John Koen (the worker) died on 16 September 2019 as a result of injury arising out of or in the course of his employment with the first respondent, pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act). 2. That the applicant was dependent on the worker for support. 3. That the second respondent was dependent on the worker for support. 4. That the third respondent was dependent on the worker for support. 5. That there were no other persons dependent for support on the worker. 6. That the first respondent is liable to pay the amount of $810,050 pursuant to s 25(1)(a) of the 1987 Act. 7. That the amount of $810,050 is to be apportioned as follows, pursuant to s 29 of the 1987 Act: (a) applicant – 60%; (b) second respondent – 20%, and (c) third respondent - $20%. 8. That the first respondent is to pay interest at the rate of 6.35% per annum on the amounts awarded to the applicant, the second respondent, and the third respondent, pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), as follows: (a) in relation to the applicant – between 28 February 2024 and 30 May 2024; (b) in relation to the second respondent – between 19 March 2024 and 30 May 2024, and (c) in relation to the third respondent – between 18 March 2024 and 30 May 2024. 9. That the worker’s reasonable funeral expenses are to be paid by the first respondent in accordance with s 26 of the 1987 Act. The Commission orders: 10. The Application to Resolve a Dispute is amended to appoint David Vincent Koen as the tutor for the second respondent. 11. The Application to Resolve a Dispute is amended to appoint Brendan Stewart Doyle as the tutor for the third respondent. 12. Pursuant to ss 25 and 85A of the 1987 Act, the first respondent is to pay the applicant the amount of $486,030, together with interest of $7,863.70 (in accordance with s 109 of the 1998 Act). 13. Pursuant to ss 25 and 85A of the 1987 Act, the first respondent is to pay NSW Police Legacy Limited in trust for the benefit of the second respondent the amount of $162,010, together with interest of $2,057.53 (in accordance with s 109 of the 1998 Act). 14. Pursuant to ss 25 and 85 of the 1987 Act, the first respondent is to pay NSW Police Legacy Limited in trust for the benefit of the third respondent the amount of $162,010, together with interest of $2,085.71 (in accordance with s 109 of the 1998 Act). 15. The first respondent is to pay funeral expenses to the applicant, pursuant to s 26 of the 1987 Act, up to the amount of $15,000 upon production of accounts or receipts. The Commission notes: 16. Pursuant to s 25(1)(b) of the 1987 Act, the first respondent agrees to pay weekly compensation in respect of the second and third respondents, at the rates specified from time to time in the SIRA Benefits Guide, from 16 September 2019 to date and on a continuing basis.

STATEMENT OF REASONS

BACKGROUND

David John Koen (the worker) died on 16 September 2019. It has been conceded by his employer, Safework NSW (the first respondent), that his death resulted from an injury pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act), in that it arose out of or in the course of his employment with it.
He was 46-years-old at the time of his death, and he lived with his wife and their two children.
His wife, Simone Koen, is the applicant. His eldest (currently 15-years-of-age) daughter, Isabella Koen, is the second respondent. She is represented by a tutor, being David Vincent Koen (who is the worker’s father and her grandfather). His youngest (currently 13-years-of-age) daughter, Madison Koen, is the third respondent. She is represented by a tutor, Brendan Stewart Doyle (who is the brother of her step-father).
The respondent eventually accepted its liability for compensation flowing from the worker’s death, in accordance with Part 3 Division 1 of the 1987 Act. Its solicitors advised the applicant’s solicitors in this regard by letter dated 19 October 2023.
By way of an Application in Respect of Death of Worker (the ARDW) lodged with the Personal Injury Commission (the Commission), the applicant therefore seeks orders that a lump sum pursuant to s 25(1)(a) of the 1987 Act in the amount of $810,050 be paid by the first respondent (as apportioned between her, the second respondent, and the third respondent), and that weekly compensation be paid in relation to the second and third respondents pursuant to s 25(1)(b) of the 1987 Act. The ARDW also seeks orders regarding how the relevant lump sums are to be paid, pursuant to s 85A of the 1987 Act.
Although not specifically claimed in the ARDW, the applicant also sought an award that the first respondent pay funeral expenses pursuant to s 26 of the 1987 Act. Further, interest on the relevant lump sums to be paid was claimed by the applicant, the second respondent and the third respondent, in accordance with s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The first respondent was able to meet these claims, and they were also therefore determined in these proceedings.

ISSUES FOR DETERMINATION

Preliminary conferences were held by the Commission in the proceedings on 24 April 2024 and 30 May 2024. As a result of the agreements and discussions held at the preliminary conferences, the only issues requiring determination by the Commission are:
(a) who was dependent for support on the worker at the date of his death;

(b) how should the amount of $810,050 be apportioned between those dependants, pursuant to s 29 of the 1987 Act;
(c) are the dependants entitled to interest on the amounts awarded to them, pursuant to s 109 of the 1998 Act, and
(d) how are the amounts awarded to the dependants to be paid in accordance with ss 85 and 85A of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

At the preliminary conferences, the applicant was represented by Mr Misha Hammond of counsel, instructed by Mr Foulcher on 24 April 2024 and Mr Granter on 30 May 2024. The first respondent was represented on both occasions by Mr Studdert. The second respondent was represented on both occasions by Mr Bourke, and the third respondent was represented on both occasions by Ms Arndell. The applicant was present at both preliminary conferences, as was a representative from the respondent’s insurer, Ms Nunn. Mr David Vincent Koen and Mr Brendan Stewart Doyle were also present during the 30 May 2024 preliminary conference.
The first respondent advised the Commission that it accepted liability to pay compensation pursuant to Part 3 Division 1 of the 1987 Act, in relation to the worker’s death. It conceded liability to pay the amount of $810,050 in accordance with s 25(1)(a) of the 1987 Act, and it advised the Commission that it had agreed to pay the worker’s funeral expenses up to $15,000 in accordance with s 26 of the 1987 Act, as well as the weekly compensation claimed in relation to the second and third respondents in accordance with s 25(1)(b) of the 1987 Act. It was agreed that there would be an award entered in relation to its agreement to pay funeral expenses and the Commission would make a notation in relation to its agreement to pay the weekly compensation.
The applicant, the second respondent, and the third respondent then advised the Commission that, subject to its approval, they had agreed on the apportionment of the lump sum payable pursuant to s 25(1)(a) of the 1987 Act between themselves, as follows:
(a)    applicant – 60% - an amount of $486,030;
(b)    second respondent – 20% - an amount of $162,010, and
(c)    third respondent – 20% - an amount of $162,010.
Due to the age of the second and third respondents, there was no dispute that the first respondent would be required to pay the lump sums awarded to them into trust. Applications were made by them that the sums should be paid into trust fund accounts already set up by the applicant on their behalf with NSW Police Legacy Limited, rather than be paid to the NSW Trustee and Guardian.
In relation to the claims for interest on the lump sums to be awarded, during conciliation at the preliminary conference on 30 May 2024, all parties agreed that the relevant interest rate should be 6.35%. The applicant and the first respondent agreed that she would be entitled to interest from the date when the ARDW was filed (28 February 2024) until 30 May 2024. The third respondent and the first respondent agreed that she would be entitled to interest from the date when she filed her Reply (the third Reply) on 18 March 2024 until 30 May 2024. However, there was a dispute between the second respondent and the first respondent as to when she was entitled to interest from. The second respondent argued that it should be from the date when the ARDW was filed, and the third respondent argued that it should be from the date when she filed her Reply (the second Reply) on 19 March 2024.
The issues (see paragraph 7 above) requiring determination by the Commission were therefore crystallised.
In order to assist the Commission with these determinations, at the preliminary conference on 30 May 2024:
(a) the Commission itself obtained some oral evidence from the worker’s father, David Vincent Koen, and
(b) oral submissions were provided by both the second respondent and the first respondent regarding the interest dispute between them (see paragraph 12 above).
Also, at the preliminary conference on 30 May 2024, all parties confirmed that they each had no objection to the admission of the evidence lodged with the Commission by the other parties. The parties also confirmed that they each had no objection to David Vincent Koen’s oral evidence, as well as that they did not wish to examine him themselves. All parties further confirmed that they did not seek to make any specific submissions to the Commission (other than those referred to at paragraph 14(b) above).
Finally, at the preliminary conference on 30 May 2024, I formally appointed David Vincent Koen as the second respondent’s tutor, and Brendan Stewart Doyle as the third respondent’s tutor. David Vincent Koen declared a statutory declaration on 9 May 2024 (found at page 1 of the second respondent’s Application to Admit Late Documents dated 20 May 2024 (the second respondent’s AALD)), and Brendan Stewart Doyle declared a statutory declaration on 6 May 2024 (found at page 1 of the third respondent’s Application to Admit Late Documents dated 7 May 2024 (the third respondent’s AALD)). I was satisfied by these declarations that they were both appropriate persons to be tutors, considering their close familial relationship with the relevant respondent and their clearly expressed intention to act in the best interests of the relevant respondent.
I am grateful to the parties for their assistance, and in their provision of evidence. I am also grateful to them for the courteous and respectful manner in which they have conducted themselves in the proceedings.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the ARDW and its attached documents;
(b)    the first respondent’s Reply (the first Reply) and its attached documents;
(c)    the second Reply and its attached documents;
(d)    the third Reply and its attached documents;
(e)    the applicant’s Application to Admit Late Documents dated 15 May 2024 (applicant’s AALD) and its attached documents;
(f)    the second respondent’s AALD and its attached documents, and
(g)    the third respondent’s AALD and its attached documents.

Oral evidence

As noted, David Vincent Koen gave brief oral evidence on 30 May 2024. He was only questioned by myself regarding the worker’s familial relationships.

FINDINGS AND REASONS

Who was dependent for support on the worker at the date of his death

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…”
The amount of $750,00 has been indexed, and the parties have agreed that the correct amount to be awarded as at 16 September 2019 was $810,050.
Section 4 of the 1998 Act then defines a dependant as follows:
“‘dependants’ of a worker means such of 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 have carefully considered the statements/statutory declarations in evidence from:
(a)    the applicant dated 18 December 2022 (at page 1 of the ARDW);
(b)    the applicant dated 19 February 2024 (at page 31 of the ARDW);
(c)    the applicant dated 15 May 2024 (at page 3 of the applicant’s AALD);
(d)    the second respondent dated 18 March 2024 (at page 1 of the second Reply);
(e)    the third respondent dated 18 March 2024 (at page 1 of the third Reply);
(f)    Paul Koen (the worker’s brother) dated 14 May 2024 (at page 1 of the applicant’s AALD);
(g)    David Vincent Koen (the worker’s father) dated 9 May 2024 (at page 1 of the second respondent’s AALD), and
(h)    Brendan Stewart Doyle dated 6 May 2024 (at page 1 of the third respondent’s AALD).
The evidence is consistent as to the applicant, the second respondent, and the third respondent being dependent upon the worker at the date of his death.
The applicant met the worker in 2000. They became engaged in 2006, and married in 2007. They had two children together, being the second respondent and the third respondent. Their relationship “was built around the sharing of resources and assets”. They relied upon each other financially and pooled their financial resources “to care for our children, our lifestyle and futures”.
The applicant runs a small business, but advises that her income “throughout our relationship” was never sufficient to support the family. The worker was “the primary income earner in our household”.
Since the worker’s death, the applicant has had to support their children out of her own finances, and has had to also perform all necessary household and domestic chores for their benefit. The children are clearly active, as the applicant has to pay for the second respondent’s guitar lessons, singing lessons, and gym membership, as well as the first respondent’s competitive dancing and dental work. She also pays food and living expenses, telephone expenses, health insurance, clothing expenses, holiday expenses, subscription and entertainment expenses, and medical expenses. If not for the worker’s death, she clearly had a reasonable expectation that she would have been substantially assisted by the worker’s earnings in meeting these expenses.
I have no difficulties in finding that, in accordance with her uncontradicted evidence, the applicant was dependent on the worker for support during the entire period of their marriage, and specifically as at the date of his death.
Likewise, I have no difficulties in finding that the second and third respondents (as school children) were totally dependent on their parents (both the worker and the applicant) for support. They lived together as a family, and it is clear from the statement evidence that the family was a very close one, as well as a very active one. The applicant says that the family’s main income came from the worker’s income, clearly making all members of the family financially reliant upon the worker.
Neither the second respondent nor the third respondent worked as at the date of the worker’s death. Their statements attest to the support provided to them by the worker, not only with day-to-day living expenses, but also with gifts, clothes, entertainment, hobbies and interests, holidays, domestic and travelling support, as well as of course with emotional support.
I find that the applicant, the second respondent, and the third respondent had reasonable expectations that the worker would provide support for them into the future. See TNT Group 4 Pty Limited v Halioris (1987) 8 NSWLR 486.
It now remains for me to determine whether there were any other persons who were dependent on the worker for support at the date of his death. In this regard, I note the following evidence:
(a)    Paul Koen’s statement refers to there being “no person dependent upon David for support other than Simone, Isabella and Madison”;
(b)    David Vincent Koen’s statement advises:
“I was in regular contact with my son David and his wife and 2 children, and I am in a very good position to say that there was no evidence of David or Simone financially supporting anyone other than themselves and their 2 children as at September 2019”;
(c)    David Vincent Koen’s statement confirms that he was not financially dependent upon the worker at the date of the worker’s death – it also confirms that his wife (the worker’s mother) was not financially dependent upon the worker at the date of the worker’s death as she had passed away on 30 November 2017;
(d)    Paul Koen’s statement confirms that he was not financially dependent upon the worker at the date of the worker’s death;
(e)    David Vincent Koen’s statement confirms that the worker had only one sibling, being Paul Koen, and
(f)    David Vincent Koen also gave oral evidence at the 30 May 2024 preliminary conference confirming:
(i)the worker’s grandparents were deceased;
(ii)the worker had only been married once – to the applicant in 2007;
(iii)to the best of his knowledge, the worker did not have any children other than the second respondent and the third respondent, and
(iv)he had known the worker throughout the worker’s entire life.

Relying upon this evidence (especially the statement and oral evidence from David Vincent Koen, who being the worker’s father, is placed in the best position to know his familial situation), I am satisfied that apart from the applicant and the second and third respondents, there were no grandparents, parents, siblings, spouses, partners, children or others dependent on the worker for support at the date of his death.

How should the amount of $810,050 be apportioned between the applicant, the second respondent, and the third respondent pursuant to s 29 of the 1987 Act

Section 29 of the 1987 Act relevantly provides:
“(1) The compensation payable under this Division to each dependant of a deceased worker may be apportioned by the Commission or by the NSW Trustee.
(1A) The lump sum death benefit payable under this Division is not to be apportioned if a deceased worker leaves only one dependant (whether wholly or partly dependent on the worker for support) and the whole of the lump sum death benefit is to be paid to that one dependant.
(1B) In apportioning the lump sum death benefit payable under this Division between 2 or more dependants, the whole lump sum death benefit is to be apportioned among those dependants (so that the sum of the apportioned amounts equals the full lump sum death benefit).”
As indicated at paragraph 10 above, the applicant and the second and third respondents have agreed an appropriate apportionment of the lump sum payable under s 25(1)(a) of the 1987 Act. The agreement in this regard is:
(a)    applicant – 60%;
(b)    second respondent – 20%, and
(c)    third respondent – 20%.
I consider this proposed apportionment to be a sound apportionment of the appropriate lump sum having regard to the dependency level upon the worker of each dependent. The apportionment allows the applicant to receive over one half of the lump sum, which is appropriate considering that at the time of the worker’s death, she had been married to the worker for over 12 years. There was no evidence before me that the marriage was not likely to continue indefinitely. Indeed, the evidence suggests a very strong relationship between the applicant and the worker, with them each mutually sharing their family’s assets, liabilities, finances and responsibilities The applicant had a reasonable expectation of receiving substantial financial support from the worker for at least 20 years of his future working life. It is also important to note that the applicant was only 46-years-old when the worker died.
The proposed apportionment also allows the second and third respondents to receive appropriate allowances for their financial dependence upon both the worker and the applicant, in that they were totally dependent upon the two of them at the date of the worker’s death. This level of dependence was likely to continue for many years, at least up until they had finished their studies and begun work. In this regard, the applicant’s statement evidence is clear that the worker “was very adamant about the girls going to university”, which strongly suggests that the second and third respondents would have been provided with substantial support from the worker during their university studies, but for his death.
There is no evidence before me that either the second respondent or the third respondent require any special medical or other needs. From their statement evidence as well as the statement evidence of the applicant, they both seem to be reasonably healthy children. Indeed, they are in accelerated learning programs at school, and are socially active (the second respondent undertaking guitar and singing lessons as well as attending the gym, and the third respondent being involved in competitive, and expensive, dance competitions). Having regard to their active lifestyles, I consider an apportionment to each of them of 20% of the lump sum payable under s 25(1)(a) of the 1987 Act to be appropriate, rather than some lesser apportionment, even taking into account that they are now both teenagers and in the final years of their schooling.
Both tutors, in their statements, clearly support the proposed apportionment. David Vincent Koen advises:
“Having known Simone for approximately 20 years and having known each of Isabella and Madison for their whole lives and having enjoyed a close relationship with each of my granddaughters, I am comfortably satisfied that the apportionment identified above is in the best interests of each of the girls, and is a fair apportionment between Simone and my 2 granddaughters…In circumstances where I am not aware of any medical or educational or psychological or other issue affecting either of my granddaughters, and that they are of very similar age, I believe it is entirely appropriate that they are receiving an identical sum of money by way of financial compensation in respect of the tragic and untimely passing of their father”.
I therefore propose to approve the apportionment agreed between the parties.

Are the dependants entitled to interest on the amounts awarded to them, pursuant to s 109 of the 1998 Act

Section 109 relevantly provides:
“(1)    In any proceedings before the Commission, the Commission may order that there is to be included, in any sum to be paid, interest at such rate as the Commission thinks fit on the whole or any part of the sum for the whole or any part of the period before the sum is payable, subject to the limitations imposed by this section.
(2)     Interest cannot be ordered under this section-
(a) on any compensation payable under Division 4 of Part 3 of the 1987 Act, or
(b) on any compensation payable under this Act for any period before a claim for the compensation was duly made, or
(c) on any compensation payable under this Act for any period during which proceedings before the Commission were adjourned on the application of the claimant for the compensation or pursuant to section 102.
(3)     This section does not-
(a) authorise the giving of interest upon interest, or
(b) apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise.”
As indicated at paragraph 12 above, the parties have agreed that an interest rate of 6.35% per annum should be paid upon the amounts awarded to the applicant, the second respondent, and the third respondent. There is also no dispute between the first respondent and the applicant or between the first respondent and the third respondent regarding the period during which interest is to be paid.
The power of the Commission to award interest is however discretionary. The relevant interest rate to be awarded is also within the discretion of the Commission.
In Pheeney v Doolan (No 2) [1977] 1 NSWLR 601 (Pheeney), the Court of Appeal said that it was necessary to determine in what respect a party has been financially disadvantaged by delay in the payment of (in that case) damages so as to make an appropriate allowance of interest. Reynolds JA, Moffitt P and Mahoney JA agreeing on point, said:
“It provides an ancillary power akin to an order for costs, and its purpose is to aid the court to do more complete justice between the parties than is otherwise possible ... It is not designed to compensate a plaintiff for loss arising out of the cause of action, but to provide compensation where it is otherwise appropriate to do so for the circumstance that a sum of money has been outstanding to him for a period of time.”
Applying this reasoning, and considering the agreement of the first respondent to pay interest to the applicant as well as the second and third respondents, I am satisfied that it is appropriate to exercise my discretion to award interest.
In relation to the interest rate to be applied, I have no hesitation in agreeing with the rate of 6.35% per annum proposed by the parties. In doing so, I note the purpose behind interest awards per Pheeney. I also note that the Reserve Bank cash rate since 7 November 2023 has been 4.35%.
I also consider that the applicant and the third respondent have agreed to the correct period for interest to be awarded, that is, the period from the date when each party’s dependency was fully particularised to the first respondent. See Mudgee Explorer Tours Pty Ltd v Clarke [2021] NSWPIC 41 (Clarke), Hu v Rongfar Property Service Pty Limited [2021] NSWPIC 95 (Hu), and Youseph v Homebush Unit Trust t/as Primo Smallgoods [2021] NSWPIC 299 (Youseph).
The applicant is therefore entitled to interest at 6.35% per annum from the date of the filing of the ARDW (which included her statement and other evidence particularising her dependency on the worker) on 28 February 2024, until the date of the preliminary conference on 30 May 2024.
The third respondent is therefore entitled to interest at 6.35% per annum from the date of the filing of the third Reply (which included her statement particularising her dependency on the worker) on 18 March 2024, until the date of the preliminary conference on 30 May 2024.
In relation to the second respondent, the second Reply (which included a statement from her) was filed on 19 March 2024. The first respondent submits that interest should only be awarded to her from this date, however she submits that interest should be awarded to her from 28 February 2024 (being the date when the ARDW was filed).
In Kaur v Thales Underwater Systems Pty Limited [2011] NSWWCCPD 6 (Kaur), President Keating stated (at [139]):
“Section 109(2)(b) of the 1998 Act prohibits interest on any award of compensation payable under the Act for any period before a claim for the compensation was duly made. I accept the submission that the claim for compensation on behalf of the appellants was not duly made until the day of the arbitration. I therefore accept Thales’s submission that, as at the arbitration, the appellants could not be entitled to interest pursuant to s 109 of the 1998 Act.”
Kaur has been applied by the Commission in Clarke, Hu, and Youseph, as requiring a claim for dependency to be fully particularised before interest can be awarded in relation to the claim pursuant to s 109 of the 1998 Act, Senior Member Capel (as he then was) stating in Youseph (at [171]):
“Replies were subsequently filed that attached statements, with the last Reply filed on 23 June 2021. In my view, this was the first time that the first respondent had full particulars of all of the claims of each dependant. Accordingly, I consider that the first respondent should only be liable for interest from that date until the date of this determination.”
At the preliminary conference on 30 May 2024, the second respondent made oral submissions through Mr Bourke. She submitted that her claim was fully particularised in the ARDW, which contained a detailed statement regarding her dependency provided by the applicant, as well as a copy of her birth certificate and other evidence. Her “entitlement was fully made out” in the ARDW, and her statement (attached to the second Reply) was more directed to how that entitlement was to be apportioned having regard to the competing entitlements of the applicant and the third respondent. The second Reply was not the first notice of her claim to the first respondent.
The first respondent also made oral submissions through Mr Studdert at the preliminary conference on 30 May 2024. It relied upon its written submissions dated 22 May 2024 and emphasised that it had not received any detailed statement from the second respondent regarding her dependency until the second Reply was filed on 19 March 2024.
I agree with the submissions of the first respondent. Although the ARDW did contain some evidence of the second respondent’s dependency on the worker at the date of his death, the evidence was not particularly detailed as the applicant’s statement in the ARDW largely concentrated upon how her children had depended on her since the worker’s death. It was only the second respondent’s statement (attached to the second Reply) that provided what I consider to be full particulars of her dependency on the worker. The respondent only received this statement when the second Reply was filed.
Further, until the second Reply was filed, the first respondent had no absolute confirmation that a claim was being proceeded with by the second respondent. In my opinion, the second respondent’s claim for compensation could not as a result have been duly made (in accordance with Kaur) until the second Reply was filed.
The second respondent’s argument seems to be that the applicant duly made and fully particularised her claim when the ARDW was filed. In circumstances however where the applicant has potentially competing interests with the second respondent, I do not believe that the first respondent can be taken to have had a duly made and fully particularised claim by the second respondent made upon it, until it received a reply and statement evidence specifically directed to the second respondent’s claim.
The second respondent will therefore be entitled to interest at 6.35% per annum from the date of the filing the second Reply on 19 March 2024 until the date of the preliminary conference on 30 May 2024.

How are the amounts awarded to the dependants to be paid in accordance with ss 85 and 85A of the 1987 Act

Section 85 of the 1987 Act reads as follows:
“(1)    The following compensation shall be paid to the NSW Trustee in trust for the benefit of the persons entitled to the compensation--
(a) compensation payable in respect of the death of a worker (unless paid to a worker's legal personal representative or a particular person in accordance with this Act or an award),
(b) compensation payable to a person who is mentally ill (unless the Commission otherwise orders),
(c) compensation payable to a worker under the age of 18 years if the worker agrees or the Commission directs that the compensation be paid to the NSW Trustee,
(d) a lump sum commutation payment which the worker agrees or the Commission orders to be paid to the NSW Trustee.
(2)     Any money so paid to the NSW Trustee may be invested, applied, paid out or otherwise dealt with by the NSW Trustee in such manner as the NSW Trustee thinks fit for the benefit of the persons entitled to the money.
(3)     If a surviving spouse (including widow or widower) (over 18 years of age and not mentally ill) is the only person entitled to compensation paid to the NSW Trustee in respect of the death of a worker, the compensation shall be paid out to the surviving spouse in one or more lump sums determined by the NSW Trustee.
(4)     A reference in subsection (3) to the surviving spouse of a deceased worker includes a reference to a dependant of the worker who is the de facto partner of the worker.
(5)     In the case of a lump sum commutation payment, the NSW Trustee shall exercise its powers under this section in accordance with the agreement or order under which it was paid to the NSW Trustee.
(6)     The Commission may, for any sufficient cause, vary the manner in which the NSW Trustee invests, applies, pays out or otherwise deals with money under this section.
(7)     The NSW Trustee may apply for any such variation.
(8)     The receipt of the NSW Trustee is sufficient discharge in respect of any money paid to the NSW Trustee under this section.”
Section 85A of the 1987 Act reads as follows:
“(1) Despite section 85, the Commission may authorise the payment of compensation referred to in section 85 (1)--
(a) to the person who is entitled to the compensation, or
(b) to such other person, for the benefit of the person entitled to the compensation, as the Commission thinks fit.
(2) Any such payment is to be made in the manner authorised by the Commission.”
I am given a wide discretion in accordance with s 85A of the 1987 Act in relation to how I authorise the payment of the lump sums payable to the dependents. There is no reason why I would not order that the applicant receive the lump sum payable to her, and I will do so.
The lump sums payable to the second and third respondents however need to be paid into trust funds for them as they are both under 18-years-of-age.
The applicant requests that the lump sums be paid into trust funds that she has set up with NSW Police Legacy Limited. The tutors for both the second respondent and the third respondent have approved in this regard. The applicant advises in her 15 May 2024 statement that she sought financial advice when setting up these trust funds, and she explains that management fees are not charged by NSW Police Legacy Limited. She further advises (and these points are confirmed in a 14 May 2024 email from Tegan Kanard of NSW Police Legacy Limited found at page 7 of the applicant’s AALD):
“It is my understanding that once the compensation payout has been transferred into the account, it will be administered by NSW Police Legacy as the Trustee in accordance with the Death Benefit Scheme Trust as per the following:
a.NSW Police Legacy Limited has the authority to administer the Trust Fund in the best interests of Isabella and Madison until they each reach the age of 21 years, at which time any balance in trust will be paid out.
b. The funds in the account may be used for the benefit, maintenance, and advancement of Isabella and Madison. Should you need to access the Trust Fund at any time please call the Community Support Manager on [telephone number in original but withheld here] to discuss.
c. Trust Fund withdrawal applications are reviewed and considered very carefully by the NSW Police Legacy Board. The Board as Trustees must be sure they are adhering to the strict rules of the Trust.
d. When Isabella turns 21 the trust fund balance will be transferred to Isabella's nominated bank account.
e. When Madison turns 21 the trust fund balance will be transferred to Madison's nominated bank account.”
In the same statement, the applicant also advises:
“I do not wish for the NSW Trustee and Guardian to be involved in the administration of any payments made by the insurer in relation to David's death. I have taken steps to ensure the money is managed responsibly with minimal charges.”
The NSW Police Legacy Limited trust fund administration policy is found at page 33 of the ARDW. That document outlines the establishment of the fund from February 1990, and the fact that “100% of the funds held in Trust and all [emphasis in original] of the interest arising thereby are passed on to the beneficiaries”, as no bank fees or penalties with the Police Bank (where trust monies are invested) are charged to the trust fund. The document also confirms the fiduciary responsibility of the Board of the trust fund to ensure that trust monies are managed appropriately for the benefit, maintenance, education and/or advancement of dependent children.
I am satisfied that the relevant trust fund is a secure and appropriate trust fund for the investment and management of the lump sums payable to the second and third respondents. Having regard to the wishes of the applicant, the consent of the relevant tutors, the well-established nature of the trust fund, the age of the second and third respondents, as well as the beneficial fee structure of the trust fund, I am willing to order that the lump sums payable to the second and third respondents be paid to the trust fund for their benefit, pursuant to s 85A of the 1987 Act.

SUMMARY

In summary, I make the following formal findings:
(a) that the worker died on 16 September 2019 as a result of injury arising out of or in the course of his employment with the first respondent, pursuant to s 4 of the 1987 Act;
(b)    that the applicant was dependent on the worker for support;
(c)    that the second respondent was dependent on the worker for support;
(d)    that the third respondent was dependent on the worker for support;
(e)    that there were no other persons dependent for support on the worker;
(f)    that the first respondent is liable to pay the amount of $810,050 pursuant to s 25(1)(a) of the 1987 Act;
(g)    that the amount of $810,050 is to be apportioned as follows, pursuant to s 29 of the 1987 Act:
(i)applicant – 60% - an amount of $486,030;
(ii)second respondent – 20% – an amount of $162,010, and
(iii)third respondent - $20% – an amount of $162,010;
(h) that the first respondent is to pay interest at the rate of 6.35% per annum on the amounts awarded to the applicant, the second respondent, and the third respondent, pursuant to s 109 of the 1998 Act, as follows:
(i)in relation to the applicant – between 28 February 2024 and 30 May 2024 - an amount of $7,863.70;
(ii)in relation to the second respondent – between 19 March 2024 and 30 May 2024 – an amount of $2,057.53, and
(iii)in relation to the third respondent – between 18 March 2024 and 30 May 2024 – an amount of $2,085.71, and
(i)    that the worker’s reasonable funeral expenses are to be paid by the first respondent in accordance with s 26 of the 1987 Act.

Considering my findings, there will be awards that the first respondent pay:
(a)    an amount of $486,030 together with interest of $7,863.70 to the applicant;
(b)    an amount of $162,010 together with interest of $2,057.53 to NSW Police Legacy Limited in trust for the benefit of the second respondent, and
(c)    an amount of $162,010 together with interest of $2,085.71 to NSW Police Legacy Limited in trust for the benefit of the third respondent.
Further, as agreed between the parties, there will also be:
(a) an award that the first respondent pay the worker’s funeral expenses to the applicant, pursuant to s 26 of the 1987 Act, up to the amount of $15,000 upon production of accounts or receipts, and
(b) a notation that the first respondent pay weekly compensation, pursuant to s 25(1)(b) of the 1987 Act, in respect of the second and third respondents, at the rates specified from time to time in the State Insurance Regulatory Authority (SIRA) Benefits Guide, from 16 September 2019 to date and on a continuing basis.

[2024] NSWPIC 319

18 June 2024