Lidbury v Remondis Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lidbury v Remondis Australia Pty Ltd [2023] NSWPIC 635
APPLICANT:	Luke Lidbury – as executor of the Estate of the late Stephen Lidbury
RESPONDENT:	Remondis Australia Pty Limited
MEMBER:	Gaius Whiffin
DATE OF DECISION:	28 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for benefits in respect of the death of a worker; determination as to whether the worker left persons dependent for support upon him; consideration of statement evidence, claim correspondence, and factual material; Held – no persons dependent for support upon the worker at the date of his death; respondent liable to pay the amount of $816,850 in accordance with section 25(1)(a); amount to be paid to the applicant (as the legal personal representative of the worker) in accordance with section 32.
DETERMINATIONS MADE:	The Commission determines: 1. That Stephen Lidbury (the worker) died on 30 March 2020 as a result of injury arising out of or in the course of his employment with the respondent, pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act). 2. That the worker’s employment was a substantial contributing factor to the injury, pursuant to s 9A of the 1987 Act. 3. That there were no persons dependent for support upon the worker at the date of his death. 4. That the respondent is liable to pay the amount of $816,850 pursuant to s 25(1)(a) of the 1987 Act. 5. That the amount of $816,850 is to be paid to the worker’s legal personal representative (being the applicant), in accordance with s 32 of the 1987 Act. The Commission orders: 6. The respondent is to pay the applicant the amount of $816,850 in accordance with s 32 of the 1987 Act. The Commission notes: 7. The respondent has agreed to pay the amount of $6,000 in relation to the worker’s funeral expenses, pursuant to s 26 of the 1987 Act. 8. The applicant has agreed not to make a claim for interest pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998, in relation to the amount awarded pursuant to s 25(1)(a) of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

Stephen Lidbury (the worker) died on 30 March 2020 allegedly following injuries to his lower back and left leg which he received on 25 March 2020 in the course of his employment with Remondis Australia Pty Limited (the respondent) as a truck driver.
He was 58-years-old at the time of his death, and he lived alone.
Luke Lidbury (the applicant) is the only child of the worker. He is also the worker’s legal personal representative in accordance with a grant of probate issued by the Supreme Court of New South Wales on 11 August 2020.
The respondent initially denied liability for compensation flowing from the worker’s death, pursuant to Part 3 Division 1 of the Workers Compensation Act 1987 (the 1987 Act). It issued a notice in this regard on 5 May 2021, pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
By way of an Application in Respect of Death of Worker (ARDW) lodged with the Personal Injury Commission (the Commission) on 7 August 2023, the applicant seeks an order that a lump sum pursuant to s 25(1)(a) of the 1987 Act in the amount of $816,850 be paid to him (as the worker’s legal personal representative) in accordance with s 32 of the 1987 Act, the worker leaving no dependants. The applicant also seeks an order that the worker’s funeral expenses be paid pursuant to s 26 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties eventually agreed that the only issue requiring determination by the Commission is:
(a) was any person dependent for support upon the worker at the date of his death?

PROCEDURE BEFORE THE COMMISSION

The ARDW proceeded to a conciliation/arbitration before the Commission on 10 November 2023. On that occasion, the applicant was represented by Mr Bruce McManamey of counsel, instructed by Ms Nair, and the respondent was represented by Mr Harris, solicitor. The applicant was also present.
The respondent advised the Commission that it now 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 $816,850 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 $6,000 in accordance with s 26 of the 1987 Act.
The parties also asked the Commission to note that the applicant did not seek interest pursuant to s 109 of the 1998 Act, in relation to the amount awarded pursuant to s 25(1)(a) of the 1987 Act.
The sole issue (see paragraph 6 above) requiring determination by the Commission was agreed upon between the Commission and the parties. In order to assist the Commission with this determination, the applicant provided further documentation (which it had already served upon the respondent, and which it has since attached to an Application to Admit Late Documents dated 10 November 2023 (the applicant’s AALD)), and the applicant also gave oral evidence.
The parties confirmed that they each had no objection to the admission of the evidence lodged with the Commission by the other party (including the applicant’s AALD), and the respondent confirmed that it had no objection to the applicant’s oral evidence. Both parties further confirmed that they did not seek to make any specific submissions to the Commission.
The parties were read the five determinations proposed by the Commission (see page 1 of the Certificate of Determination) should it find that there were no persons dependent for support upon the worker at the date of his death. Neither party had any objection to those five determinations being made.
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.

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 (specifically the worker’s death certificate, the sealed Supreme Court of New South Wales grant of probate in relation to the worker’s estate, and a statutory application from the applicant);
(b)    the applicant’s AALD and its attached documents (specifically the responses from Julie-Ann Lacey, Donna Davis, Kylie Bain, Matthew Lidbury, Michelle Arthur, Zachary Arthur, Samuel Arthur, and Nick Arthur), and
(c)    the respondent’s Reply lodged on 30 August 2023 and its attached documents (as attached to an Application to Admit Late Documents dated 30 August 2023).

Oral evidence

As noted, the applicant gave brief oral evidence on 10 November 2023. He was examined in chief by Mr McManamey. Mr Harris did not wish to cross-examine him.

FINDINGS AND REASONS

Was any person dependent for support upon 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 agreed that the correct amount to be awarded as at 30 March 2020 was $816,850.
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…”
Section 32 of the 1987 Act then provides:
“If a deceased worker leaves no dependants, compensation payable under this Division shall be paid to the worker's legal personal representative or, if there is no such representative, to the person to whom the payment of the expenses for which the compensation is payable is due.”
In this case, the worker does have a legal personal representative, being the applicant, as evidenced by the sealed Supreme Court of New South Wales grant of probate (at page 20 of the ADRW).
There is absolutely no evidence before me that any person was dependent for support upon the worker at the time of his death.
In this regard, there are nine persons in the documentary evidence identified as potential dependants, being:
(a)    the worker’s sister – Julie-Ann Lacey;
(b)    the worker’s sister – Donna Davis;
(c)    the worker’s sister – Kylie Bain;
(d)    the worker’s brother – Matthew Lidbury;
(e)    the worker’s former spouse - Michelle Arthur;
(f)    Michelle Arthur’s son from a subsequent relationship – Zachary Arthur;

(g)    Michelle Arthur’s son from a subsequent relationship – Samuel Arthur;
(h)    Michelle Arthur’s son from a subsequent relationship – Nick Arthur, and
(i)    the applicant (the worker’s son) – Luke Lidbury.

Julie-Ann Lacey signed a statement dated 31 October 2023 (at page 5 of the applicant’s AALD) advising that she was not a dependant of her brother’s. She signed the statement after receiving a letter from the applicant’s solicitors (at page 3 of the applicant’s AALD), which I am satisfied provided her with sufficient information regarding:
(a) the nature of the claim being brought by the applicant in relation to the worker’s death, and
(b) her entitlement to be represented in the claim should she have considered herself to have been dependent upon the worker at the date of his death.
Donna Davis sent an email from her personal email account to the applicant’s solicitors on 31 October 2023 (at page 8 of the applicant’s AALD) advising that she did not wish to claim as a dependant of her brother’s, and also advising that “Luke should receive all benefits” and she “believe none of our family will lay any claims”. She sent the email after receiving a letter from the applicant’s solicitors (at page 6 of the applicant’s AALD), which I am satisfied provided her with sufficient information regarding:
(a) the nature of the claim being brought by the applicant in relation to the worker’s death, and
(b) her entitlement to be represented in the claim should she have considered herself to have been dependent upon the worker at the date of his death.
Kylie Bain signed a statement dated 1 November 2023 (at page 12 of the applicant’s AALD) advising that she was not a dependant of her brother’s. She signed the statement after receiving a letter from the applicant’s solicitors (at page 10 of the applicant’s AALD), which I am satisfied provided her with sufficient information regarding:
(a) the nature of the claim being brought by the applicant in relation to the worker’s death, and
(b) her entitlement to be represented in the claim should she have considered herself to have been dependent upon the worker at the date of his death.
Matthew Lidbury signed a statement dated 1 November 2023 (at page 13 of the applicant’s AALD) advising that he was not a dependant of his brother’s. He signed the statement after receiving a letter from the applicant’s solicitors (at page 10 of the applicant’s AALD), which I am satisfied provided him with sufficient information regarding:
(a) the nature of the claim being brought by the applicant in relation to the worker’s death, and
(b) his entitlement to be represented in the claim should he have considered himself to have been dependent upon the worker at the date of his death.
Michelle Arthur signed a statement dated 6 November 2023 (at page 16 of the applicant’s AALD) advising that she was not a dependant of her former spouse. She signed the statement after receiving a letter from the applicant’s solicitors (at page 14 of the applicant’s AALD), which I am satisfied provided her with sufficient information regarding:
(a) the nature of the claim being brought by the applicant in relation to the worker’s death, and
(b) her entitlement to be represented in the claim should she have considered herself to have been dependent upon the worker at the date of his death.
Zachary Arthur sent by email a letter (albeit unsigned) dated 5 November 2023 (at page 21 of the applicant’s AALD), advising that he was not dependent on the worker. He sent that letter to the applicant’s solicitors from his personal email account on 5 November 2023, after receiving a letter from them (at page 17 of the applicant’s AALD), which I am satisfied provided him with sufficient information regarding:
(a) the nature of the claim being brought by the applicant in relation to the worker’s death, and
(b) his entitlement to be represented in the claim should he have considered himself to have been dependent upon the worker at the date of his death.
Samuel Arthur sent an email from his personal email account to the applicant’s solicitors on 6 November 2023 (at page 24 of the applicant’s AALD) advising that he was not dependent on the worker. He sent the email after receiving a letter from the applicant’s solicitors (at page 22 of the applicant’s AALD), which I am satisfied provided him with sufficient information regarding:
(a) the nature of the claim being brought by the applicant in relation to the worker’s death, and
(b) his entitlement to be represented in the claim should he have considered himself to have been dependent upon the worker at the date of his death.
Nick Arthur sent an email from his personal email account to the applicant’s solicitors on 6 November 2023 (at page 28 of the applicant’s AALD) advising that he was not dependent on the worker. He sent the email after receiving a letter from the applicant’s solicitors (at page 26 of the applicant’s AALD), which I am satisfied provided him with sufficient information regarding:
(a) the nature of the claim being brought by the applicant in relation to the worker’s death, and
(b) his entitlement to be represented in the claim should he have considered himself to have been dependent upon the worker at the date of his death.
The applicant (Luke Lidbury) provided a statutory declaration dated 23 July 2023 (at page 1 of the ARDW). He obviously had a very close relationship with his father, telephoning him most days and regularly enjoying quad biking with him. He says that his father was “there for me” when needed. However, he also specifically says that “I did not have any financial support upon my father at the time of his death”. He lived apart from his father.
I accept the evidence provided by Julie-Ann Lacey, Donna Davis, Kylie Bain, Matthew Lidbury, Michelle Arthur, Zachary Arthur, Samuel Arthur, Nick Arthur and the applicant. I find that none of them were dependent for support upon the worker at the date of his death. I now however need to consider whether anyone else may have been.
According to the applicant’s statutory declaration, he was the only child of the worker. His parents had divorced “many years ago”, and the worker “had not been in a romantic relationship for a long time”. He says in relation to the worker:
“I am not aware of anyone else who might have an interest in his estate, or have been dependent upon him at the time of his death.”
The applicant has also given oral evidence confirming:
(a)    his father’s only surviving siblings are Julie-Ann Lacey, Donna Davis, Kylie Bain, and Matthew Lidbury;
(b)    his grandparents (his father’s parents) are deceased;
(c)    he has no other siblings (either full or half) other than Zachary Arthur, Samuel Arthur, and Nick Arthur;
(d)    his mother (and the worker’s former spouse) is Michelle Arthur, and
(e)    he could not think of any “other person who could claim to be dependent on his late father”.
I accept that the applicant had a very close relationship with his father, and that he is clearly in the best position to advise regarding his father’s familial relationships. He was the worker’s only child, in circumstances where the worker lived alone and had no partner. He was made the executor of the worker’s estate by virtue of the worker’s will.
In all the circumstances, and on the totality of the evidence available to me, I am comfortable in finding that there were no parents, siblings, partners or spouses, children, or other family members of the worker that were dependent upon him for support at the date of his death.

SUMMARY

I therefore find that the worker died on 30 March 2020 as a result of injury arising out of or in the course of his employment with the respondent, pursuant to s 4 of the 1987 Act. This is conceded by the respondent.
I find that the worker’s employment was a substantial contributing factor to the injury, pursuant to s 9A of the 1987 Act. This is also conceded by the respondent.
I find that there were no persons dependent for support upon the worker at the date of his death.
I find that the respondent is liable to pay the amount of $816,850 pursuant to s 25(1)(a) of the 1987 Act.
Considering my findings, the amount of $816,850 is therefore to be paid by the respondent to the worker’s legal personal representative (being the applicant), in accordance with s 32 of the 1987 Act. There will be an award accordingly.
I also note the agreements between the parties regarding:
(a) the respondent paying the worker’s funeral expenses, and
(b) the applicant not pursuing a claim for interest in relation to the amount awarded to him.

[2023] NSWPIC 635

28 November 2023