Lloyd v T Rainsford Pty Ltd (ATF Frapaulmar Trust)
[2022] NSWPIC 357
•5 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Lloyd v T Rainsford Pty Ltd (ATF Frapaulmar Trust) [2022] NSWPIC 357 |
| APPLICANT: | Jennifer Ann Lloyd |
| RESPONDENT: | T Rainsford Pty Ltd (ATF Frapaulmar Trust) |
| SENIOR MEMBER: | Kerry Haddock |
| DATE OF DECISION: | 5 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Determination of dependency and apportionment of death benefit pursuant to section 29 of the Workers Compensation Act 1987; claim for interest on lump sum pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998; consideration of Haidary v Wandella Pet Foods Pty Limited, Dynamix Pty Ltd, Burragong Foods Pty Ltd and Kaur v Thales Underwater Systems Pty Ltd; consideration of when claim “duly made”; Held – the applicant was partly dependent for support on the deceased worker; there were no other persons dependent on the worker; claim was not duly made until further evidence was provided after the telephone conference; no order for interest on the lump sum. |
| DETERMINATIONS MADE: | 1. That the worker, James Lloyd, died on 27 November 2020, as a result of injury arising out of or in the course of employment with the respondent. 2. That the applicant was partly 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 respondent is liable for payment of lump sum compensation of $834,200. |
| ORDERS MADE | 1. That the respondent is to pay to the applicant, pursuant to s 25(1)(a) of the Workers Compensation Act 1987 and s 85A(1)(a) of the Workers Compensation Act 1987, the sum of $834,200. 2. That there is no order for interest. |
STATEMENT OF REASONS
BACKGROUND
The worker, James Lloyd (Mr Lloyd), died on 27 November 2020, as a result of injury he sustained in the employ of the respondent, T Rainsford Pty Ltd ATF Frapaulmar Trust, on 27 November 2000.
On 1 February 2021, solicitors acting for the applicant, Jennifer Ann Lloyd (Ms Lloyd), the worker’s wife, emailed the solicitors for the respondent confirming that they were instructed to proceed with a death benefits claim on behalf of the deceased’s family.
The email attached invoices, the death certificate, Mr Lloyd’s will and emails about his condition shortly before his death. Reference was made to an email on 30 November 2020, which is not in evidence.
By letter dated 11 February 2021, the solicitors acting for the respondent requested particulars of the claim. The particulars included evidence of attempts to contact potential further dependants, if applicable; and statutory declarations from dependants or their guardians/legal personal representatives addressing dependency and knowledge of persons who may be dependant.
By letter dated 22 April 2021, the applicant’s solicitors advised the respondent of details of only two potential dependants, the children of the worker, Ms Nikita Lloyd and Ms Natasha Lloyd. The solicitors advised that they did not wish to make claims and they would in due course be serving statutory declarations/statements evidencing this.
I will refer to Ms Nikita Lloyd and Ms Natasha Lloyd by their given names, to avoid confusion, while meaning no disrespect to them. Their statutory declarations are dated 14 September 2021.
By letter dated 6 April 2022, the solicitors for the respondent advised the applicant’s solicitors that their client had decided that compensation was payable, and the compensation that could be claimed was a lump sum of $834,200, in addition to funeral expenses up to $15,000.
The respondent’s solicitors advised that the Personal Injury Commission (the Commission) would be required to determine the relevant apportionment between any respective dependants, and they understood the applicant’s solicitors would be filing proceedings.
Ms Lloyd filed an Application in Respect of Death of Worker (the Application) on 13 May 2022.
The Application claimed the sum of $834,200; and sought an order that the lump sum and interest be paid to the applicant.
The respondent filed its Reply on 7 June 2022.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) the apportionment of the death benefit, and
(b) whether interest is to be paid on the death benefit and if so, the amount of interest and the period over which it is to be awarded.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for telephone conference before me on 15 June 2022. Mr Robison of counsel, instructed by Mr Tohme, appeared for the applicant, who attended; and Ms Davis appeared for the respondent. Ms Morgan of GIO and Ms Dean of iCare also attended.
There was no evidence before me of the marriage of Mr and Ms Lloyd. There was an email from the applicant’s solicitors to the respondent’s solicitors on 17 December 2021 that referred to “the previously sent marriage certificate”, but neither party placed the certificate in evidence. It is possible that the email meant to refer to the death certificate, as it had been emailed on 16 December 2021.
There was also no evidence from Ms Lloyd as to her knowledge of any other potential dependants, apart from Nikita and Natasha. I was therefore unable to make orders as to apportionment of the death benefit.
The parties were unable to agree on the applicant’s claim for interest.
Directions were therefore made for the provision of further evidence and submissions on the issue of interest, after which the parties were advised that the matter would be determined “on the papers”.
The applicant provided her submissions on 17 June 2022; and the respondent provided its submissions on 29 June 2022. The applicant’s solicitors advised the Commission on 29 June 2022 that she did not intend to reply to the respondent’s submissions, and that the matter was able to be determined.
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) Reply by respondent and attached documents, and
(c) Application to Admit Late Documents dated 17 June 2022 and attachments, filed by the applicant in accordance with my direction at the telephone conference.
FINDINGS AND REASONS
Evidence
Statements of the applicant, Jennifer Ann Lloyd
On 12 May 2022, Ms Lloyd stated that since Mr Lloyd’s death she had struggled financially.
Ms Lloyd has worked as a barrister’s secretary and an executive assistant for the last 22 years. Before her husband’s injury, the family had a dual income household. Since Mr Lloyd’s injury she had been the sole breadwinner. Without her prior boss’s understanding of her needs and the compensation process, she does not know that they would have survived with only a partial income.
The applicant was able to regularly work from home after Mr Lloyd’s injury. Depending on his condition and the extensive procedures he had to undergo, she would have to work remotely frequently and for extended periods. She sometimes had to take unpaid leave to help him.
Ms Lloyd was very reliant on Mr Lloyd’s workers compensation payments to supplement her limited income. She was always exhausted.
The applicant has two children, Nikita, who was at that time aged 22, and Natasha, who was aged 19. Each has a medical condition. She was tasked with assisting them as they grew up and when they became unwell, in addition to caring for Mr Lloyd. She relied heavily on him before his injury for financial [support], care of the children, household chores and emotional support.
After Mr Lloyd’s injury, he was not able to do any cleaning and his workers compensation insurer provided a cleaner to assist the applicant. After his passing, all the general domestic duties fell to her, which she found difficult and exhausting.
Almost every workers compensation weekly benefit went to maintaining the home, paying bills and the mortgage. The applicant was working for another barrister and was very reliant on that income.
On 15 June 2022, Ms Lloyd stated that to the best of her knowledge and belief, Mr Lloyd had no prior marriages, and the only other potential dependants would be their two children, Nikita and Natasha. To the best of her knowledge, Mr Lloyd did not have any other children.
Mr and Ms Lloyd’s marriage certificate was provided. It confirms that they were married in 1998 and that both were previously “never validly married”.
Evidence of Nikita Lloyd
Nikita has provided a statutory declaration dated 14 September 2021.
Nikita declared that she had been advised of her potential rights and entitlements pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act). She did not wish to make any claim with respect to any potential apportionment of the lump sum compensation she may have as a result of potential dependency.
Evidence of Natasha Lloyd
Natasha has provided a statutory declaration dated 14 September 2021.
Natasha declared that she had been advised of her potential rights and entitlements pursuant to s 25 of the 1987 Act. She did not wish to make any claim with respect to any potential apportionment of the lump sum compensation she may have as a result of potential dependency.
Legislation
Section 25 of the 1987 Act provides:
“Death of worker leaving dependants
(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.”Section 29 of the 1987 Act provides:
“Apportionment of payments between dependants
(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).
(2) Application for apportionment may be made by or on behalf of a person entitled to the compensation-
(a) to the NSW Trustee, or
(b) to the Commission (whether or not an application has been made to the NSW Trustee or the NSW Trustee has made a decision).
(3) The NSW Trustee may decline to deal with an application for apportionment and advise the parties to apply to the Commission.
(4) The NSW Trustee is not to deal with an application for apportionment of compensation if an application for apportionment of the same compensation is before the Commission.
(5) A decision by the NSW Trustee to apportion compensation under this Division is subject to any decision made by the Commission with respect to the matter.
(6) If there are both total and partial dependants of a deceased worker, the compensation may be apportioned partly to the total and partly to the partial dependants.
(7) If a dependant dies-
(a) before a claim under this Division is made, or
(b) if a claim has been made, before an agreement or award has been arrived at or made, the legal personal representative of the dependant has no right to payment of compensation, and the amount of compensation shall be calculated and apportioned as if that dependant had died before the worker.
(8) The regulations may make provision for or with respect to the publication of applications for apportionment and any other matter connected with apportionment.”
Section 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“109 Interest before order for payment
(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.”
SUBMISSIONS
The applicant and the respondent have provided written submissions, so I will refer to them only briefly.
Applicant
The applicant submitted that s 109 of the 1998 Act provides that the Commission may award interest, but there is no legislative guidance on the quantification of such an award, save that it cannot be awarded prior to a claim being duly made. She submitted that was on 1 February 2021.
The applicant submitted that fairness would suggest that interest be paid from the date of death, but that is prohibited by the terms of s 109. As the award is discretionary, it should be awarded according to fairness, insofar as the legislation permits. She submitted that, as she has been denied her husband’s economic support since the date of his death, interest should be awarded from the date of the claim to achieve the most just outcome possible according to law.
The applicant submitted that while it might be understood that the respondent needed to assess or investigate the claim, during that period, it had the benefit of the money. The award of interest is not to punish delay by the respondent but to compensate her from being deprived of her entitlement.
In the alternative, the applicant submitted that if the Commission considered that interest should only run from the date the respondent was able to assess the claim, the latest start date that should be considered is the date of service of the statutory declarations of the children, that is 24 September 2021.
The applicant submitted that there is no justification for delaying the start date to the commencement of proceedings, as this has no relationship to the acceptance of the claim. The filing of the Application reflects that acceptance. There is nothing before the Commission to indicate justification in the delay on the respondent’s part in this regard. Even if such justification was submitted by the respondent, the applicant repeated her submission that she had been deprived of her lawful entitlement during that period.
The applicant acknowledged the Commission’s prior practice of applying the interest rates applied in the mainstream courts has been departed from in a number of cases because that rate was considered too high. She submitted that this practice should be abandoned, and the Commission should return to comity with the Local, District and Supreme Courts.
The applicant submitted there is no cogent reason why a grieving widow, who lost her husband as a result of the sequelae of a workplace injury, should be treated less favourably than a company or a “slip and fall plaintiff”. They are both entitled to the cash rate plus 6% under the Uniform Civil Procedure Rules 2005, 36.7.
The applicant submitted that, while the Commission is a specialist tribunal as to matters uniquely within its jurisdiction, on matters of mainstream practice, such as the award of interest, the approach should be the same as the Courts. It should not develop its own jurisprudence on matters like awarding interest, which are not unique to its jurisdiction.
The applicant referred to the decision of Heydon J in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [112] (Kirk).
The applicant finally submitted that interest should be allowed at the RBA [Reserve Bank of Australia] cash rate plus 6%, from the commencement date the Commission considers appropriate in the light of her submissions; and it may wish to direct the parties to seek to agree on the mathematics of the award of interest.
Respondent
The respondent submitted that dependency and apportionment are matters of which the Commission must be satisfied. However, it is relevant to the claim for interest that it was not made clear to the respondent, or possible for the Commission to determine the issues, until after the Application and Application to Admit Late Documents were served.
The respondent submitted that the power to award interest under s 109 of the 1998 Act is discretionary. An entitlement to interest does not arise as of right but flows from a determination by the Commission in the interests of its discretion (Pasminco Ltd v Walters [2005] NSWWCCPD 30).
The respondent submitted that in accordance with s 25(1)(a) of the 1987 Act, before compensation can be paid in respect of the death of a worker leaving dependants, the Commission needs to:
(a) make a determination as to those persons who were dependent for support upon the deceased;
(b) make any necessary determination pursuant to s 29 of the 1987 Act as to apportionment, if applicable, and
(c) make orders pursuant to ss 85(1)(a) and/or 85A(1) of the 1987 Act for payment consistent with any apportionment.
The respondent referred to the decision of his Honour President Keating in Kaur v Thales Underwater Systems Pty Ltd [2011] NSWWCCPD 6 (Kaur), in which he set out that s 109(2)(b) of the 1998 Act prohibits interest on any award of compensation payable under the Act for any period before a claim was duly made. It submitted that Kaur continues to be applied by the Commission.
The respondent referred to my decision in Jason B and Natasha N Cullinan v Cullinan & Ors [2022] NSWPIC 7 (Cullinan); and submitted that a similar finding should be made in this matter.
The respondent submitted that no evidence of the applicant’s claim of dependency was provided prior to the proceedings being filed. It requested details in relation to potential dependants and in their letter dated 22 April 2021, the applicant’s solicitor responded, “The only two potential dependants are his children”. The statement of Ms Lloyd dated 12 May 2022 was the first evidence particularising her dependency and was first served with the Application on 17 May 2022.
The respondent therefore submitted that, as I observed at the telephone conference on 15 June 2022, the applicant’s statement alone was insufficient to address dependency and apportionment, with directions made for a further statement and the marriage certificate to be served. This evidence was provided with the Application to Admit Late Documents filed and served on 17 June 2022.
The respondent submitted that the approach in Cullinan ought to be followed and the Commission should decline the exercise of discretion under s 109 of the 1998 Act and decline the claim for interest.
Alternatively, the respondent submitted that if it is considered that interest should be awarded, the remaining issues are the period within which it should be paid and at what rate.
The respondent submitted that in accordance with s 109(2)(b) of the 1998 Act, interest cannot be ordered “on any compensation payable under the Act for any period before a claim for the compensation was duly made”. The applicant had submitted that this occurred on 1 February 2021, when the claim was served.
The respondent submitted that the applicant’s submission is incorrect, as the claim was not duly made at that time. Should the Commission consider it appropriate to exercise discretion under s 109, the period should commence from 17 June 2022, the date on which the claim was duly made. Alternatively, this could be the date on which the Application was served with Ms Lloyd’s statement, that is 17 May 2022. However, this was not accepted by the Commission as being sufficient evidence addressing the claim for dependency, as required to constitute a duly made claim.
The respondent submitted that it is well established that a duly made claim requires not only the issue of a letter of claim, but the provision of all relevant particulars, including particulars of dependency.
The respondent referred to the decisions in Mudgee Explorer Tours Pty Ltd v Clarke [2021] NSWPIC 41 (Clarke); Lavelle v Browne & Ors 533/19 (Lavelle); and Youseph v Homebush Unit Trust t/as Primo Smallgoods [2021] NSWPIC 299 in support of its submission.
The respondent noted the decision of Member Batchelor in Zhang v Universe InvestmentsPty Ltd t/as Kings Seafood [2021] NSWPIC 128 (Zhang), in which he addressed the issue as to whether it was possible to immediately pay the lump sum to the NSW Trustee and Guardian, pursuant to s 85(1)(a) of the1987 Act.
The respondent submitted that whether or not the applicant is a “person entitled to compensation”, and whether compensation is payable, as referred to in s 85(1) of the 1987 Act, is contingent upon particulars of dependency being supplied. It submitted it was not at liberty to pay the Trustee the lump sum in the current circumstances. There was no evidence of the applicant’s dependency prior to the proceedings being filed. This did not occur until service of the Application to Admit Late Documents.
The respondent submitted this is not inconsistent with Zhang, as Member Batchelor did not order payment of interest to the fourth respondent prior to her Reply being filed. This was on the basis that “particulars of her dependency were not lodged until lodgement of her Reply dated 29 October 2020 with attachments outlining her dependency on the deceased. The Reply was lodged with the Commission on 30 October 2020”. Member Batchelor ordered interest on the portion of the lump sum apportioned to the fourth respondent 21 days after the date on which her Reply was filed.
The respondent submitted that the authorities remain supportive of the established approach that interest should not be awarded prior to the date on which evidence of dependency was served. In this case, this was either on 17 May 2022 or on 17 June 2022. The respondent submitted it should be the latter date.
As regards the rate at which interest should be ordered, the respondent submitted that this is again at the discretion of the Commission. The applicant has acknowledged that its practice has been of departing from the interest rates applied by the “mainstream courts” and seeks that it comply with the rates applied in the Local, District and Supreme Courts.
The respondent submits that similar submissions have previously been rejected, including by Member McDonald in Hughes Helicopters Pty Ltd v Brink [2021] NSWPIC 393 (Brink), at [29]. In that matter, counsel for the applicant relied on Heydon J’s dissenting judgment in Kirk. Member McDonald rejected the submission.
The respondent submitted that it is key to consider the recent approach adopted by the Commission in determining the appropriate rates to be applied if interest is awarded.
The respondent referred to Bott v Workers Compensation Nominal Insurer (iCare) [2021] NSWPIC 474, in which the rate of 2% was applied; Brink, in which the rate of 2.1% was applied; Clarke, in which the rate of 2% was applied; ZKM Pty Ltd v Chen [2022] NSWPIC 108, in which the rate of 2% was applied; McGrath v P.M. Electric Pty Ltd & Ors [2022] NSWPIC 263, in which the rate of 2.1% was applied; and Heycox by her Tutor Shelley Young Heycox v SCPR & M Pennisi (no longer trading) & Ors [2022] NSWPIC 217, in which the rate of 2% was applied.
The respondent submitted that, if the Commission is minded to order interest, a rate of no more than 2% per annum is appropriate.
SUMMARY
Apportionment of the lump sum
The applicant’s evidence, although brief, is sufficient to satisfy me that she was partly dependent on the worker at the date of his death.
Ms Lloyd has given evidence that “almost every workers compensation weekly benefits payment” received by the worker went to maintenance of the family home, bills and the mortgage. She has described her own income as “only a partial income” and “limited”. She also had to take unpaid leave at times, to care for Mr Lloyd.
The two children of the marriage are adults, and each has provided evidence that she does not wish to make a claim.
Ms Lloyd has provided further evidence attached to the Application to Admit Late Documents dated 17 June 2022. I am satisfied that there were no other persons dependent on the worker for support at the date of his death.
I therefore determine that the sum of $834,200 is to be paid to the applicant, pursuant to s 85A(1)(a) of the 1987 Act.
Interest
The power to award interest is discretionary. It is subject to the limitations set out in ss 109(2) and (3). Relevantly, sub-s (2)(b) provides that interest cannot be ordered on any compensation payable for any period before a claim for compensation was duly made.
in Haidary v Wandella Pet Foods Pty Limited, Dynamix Pty Ltd and Burrangong Pet Foods Pty Ltd [2005] NSWWCCPD 9 (Haidary) Fleming DP discussed the reasoning behind an award of interest and the relevant interest rate. She said:
“The award of interest by the Commission, pursuant to section 109 of the 1998 Act is discretionary. Mr Haidary will only be entitled to interest, if awarded, on those amounts of his weekly entitlement that were unpaid, and only from the date that his claim ‘was duly made’. The likely amount of interest that would be due on these sums is small, relative to the whole of his claim, but nonetheless they may form part of Mr Haidary’s entitlement. The purpose of ordering interest on an award is to compensate the worker for the loss of his or her income, not to penalise the employer (Virag v James N Kirby t/as Betts Electric Motors (1990) 6 NSW CCR; Healey v McPherson Binding Pty Ltd (1989) 5 NSWCCR 139).”
Kaur has been consistently applied the Commission, and previously in the Workers Compensation Commission.
In Kaur, Keating P said 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 compensation on behalf of the appellants 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”.
“Duly made” has been held to mean “fully particularised”. It was applied in Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited [2020] NSWWCC (Kratz), in which Arbitrator Isaksen (as he then was) referred to the decision of Arbitrator Wynyard (as he then was) in Shanika Cooper v G & W Mudgee Concreting Pty Ltd & Ors (6411/18) and his own decision in Lavelle, in which he agreed with Arbitrator Wynyard’s approach. Member Wynyard took a similar approach in Clarke.
In Kratz, Arbitrator Isaksen determined that the claim was not fully particularised until days before the hearing, when evidence that addressed the issue of dependency was filed. He therefore declined to award interest on the lump sum.
In this matter, the applicant’s solicitors advised by letter dated 22 April 2021 that the only other two potential dependants, Nikita and Natasha, did not wish to make a claim. There was at that stage no evidence from Ms Lloyd regarding dependency, and no evidence from either Nikita or Natasha.
Nikita and Natasha made statutory declarations on 14 September 2021. The applicant has submitted they were served on 24 September 2021. There is no evidence of that before me, but I accept the submission.
Before the Application was served, which the respondent submitted was on 17 May 2022, there was no evidence from Ms Lloyd regarding her dependency on the worker.
In my view, the earliest date at which it may have been accepted that the claim was “fully particularised” was when the Application was served. However, there was no evidence from Ms Lloyd or any other person that was sufficient to establish that there were no other potential claimants, apart from Nikita and Natasha, for the death benefit. I was not satisfied on the evidence before me that an order for payment of the lump sum should be made.
I have determined that the claim was not fully particularised until the applicant filed her further evidence on 17 June 2022.
In the circumstances, and in the exercise of my discretion, I decline to make an order for interest on the lump sum compensation. It is therefore unnecessary that I determine the appropriate rate of interest and the period of payment.
The determinations and orders are as set out in the Certificate of Determination.
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