Koen v Secretary Safework NSW - [2024] NSWPIC 319

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)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Koen v Secretary Safework NSW and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NSWPIC 319
Decision Date: 18 June 2024

CaseChat Overview and Summary

Koen v Secretary Safework NSW involved a claim for benefits under the Workers Compensation Act 1987 (1987 Act) and the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) in respect of the death of a worker. The dispute centred on the apportionment of a lump sum payable to the worker’s dependants, the entitlement to interest on the lump sum, and the appropriate distribution of the amounts awarded. The case was heard and determined in the NSW Civil and Administrative Tribunal.

The court was required to determine who were the worker’s dependants for the purposes of the apportionment of the lump sum under section 25(1)(a) of the 1987 Act, and whether the agreed apportionment between the parties was appropriate. Additionally, the court needed to decide if interest was payable under section 109 of the 1998 Act, and if so, at what rate and from what date. The court also had to consider how the amounts awarded should be paid to the dependants in accordance with sections 85 and 85A of the 1987 Act.

The court found that only the applicant, the second respondent, and the third respondent were dependent on the worker for support at the time of his death. The agreed apportionment of the lump sum between the parties was approved, and interest was awarded at a rate of 6.35% per annum from the date when dependency was fully particularised to the first respondent. The court's reasoning was based on the consideration of statements, statutory declarations, claim correspondence, and other factual material provided. The court referred to TNT Group 4 Pty Limited v Halioris in determining dependency, and to 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, and Kaur v Thales Underwater Systems Pty Ltd in determining the entitlement to interest.

The court made awards in favour of the applicant, the second respondent, and the third respondent. The amounts payable to the second and third respondents were to be paid in trust for their benefit to NSW Police Legacy Limited. An award was also entered with the agreement of the parties in relation to the worker’s funeral expenses under section 26 of the 1987 Act, and a notation was made with the agreement of the parties in relation to the weekly payments payable to the second and third respondents under section 25(1)(b) of the 1987 Act.

Orders