Maddox v T L Vegetation Management Pty Ltd
[2025] NSWPIC 286
•20 June 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Maddox v T L Vegetation Management Pty Ltd & Ors [2025] NSWPIC 286 |
| APPLICANT: | Maddox |
| RESPONDENT: | T L Vegetation Management Pty Ltd & Ors |
| MEMBER: | Gaius Whiffin |
| DATE OF DECISION: | 20 June 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987 (WCA Act); Workplace Injury Management and Workers Compensation Act 1998 (WIMWC Act); claim for benefits in respect of the death of a worker; apportionment of lump sum payable under section 25(1)(a) of the WCA Act; together with claim for interest; consideration of who was dependent for support on the worker; TNT Group 4 Pty Limited v Halioris, Youseph v Homebush Unit Trust t/as Primo Smallgoods considered; consideration of appropriateness of apportionment agreed between the parties in relation to the lump sum payable under section 25(1)(a) of the WCA Act; consideration as to interest awards under section 109 of the WIMWC Act; Pheeney v Doolan (No 2), and Mudgee Explorer Tours Pty Ltd v Clarke considered; Held – no other persons but the applicant, the second respondent, the third respondent and the fourth respondent were dependent for support on the worker; apportionment of the lump sum payable under section 25(1)(a) as agreed between the parties approved; awards entered in favour of the applicant, the second respondent, the third respondent and the fourth respondent in relation to their apportioned entitlements (plus interest) to the lump sum payable under section 25(1)(a) of the WCA Act; consent awards also entered in relation to claims pursuant to sections 26 and 28 of the WCA Act. |
| DETERMINATIONS MADE: | The Personal Injury Commission determines: 1. That Christian Downes (the worker) died on 9 January 2025 as a result of injury sustained in the course of his employment with the first respondent, and to which that employment was a substantial contributing factor, pursuant to ss 4 and 9A of the Workers Compensation Act 1987 (the 1987 Act). 2. That the applicant was dependent on the worker for support in accordance with s 25(1)(a) of the 1987 Act. 3. That the second respondent was dependent on the worker for support in accordance with 4. That the third respondent was dependent on the worker for support in accordance with 5. That the fourth respondent was dependent on the worker for support in accordance with 6. That there were no other persons dependent on the worker for support in accordance with 7. That the first respondent is liable to pay the amount of $938,600 pursuant to s 25(1)(a) of the 1987 Act. 8. That the amount of $938,600 is to be apportioned as follows, pursuant to s 29 of the (a) applicant – 8% – $75,088; (b) second respondent – 8% – $75,088; (c) third respondent – 8% – $75,088, and (d) fourth respondent – 76% – $713,336. 9. That the first respondent pay interest on the amounts awarded to the applicant, the second respondent, the third respondent, and the fourth respondent, as agreed between the parties, pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), as follows: (a) applicant – 6.1% per annum between 24 March 2025 and 20 May 2025, and 5.85% per annum between 21 May 2025 and 16 June 2025; (b) second respondent – 6.1% per annum between 10 April 2025 and 20 May 2025, and 5.85% per annum between 21 May 2025 and 16 June 2025; (c) third respondent – 6.1% per annum between 14 April 2025 and 20 May 2025, and 5.85% per annum between 21 May 2025 and 16 June 2025, and (d) fourth respondent – 6.35% per annum between 14 January 2025 and 10. That, in accordance with the agreement between the parties, the first respondent is to pay funeral expenses pursuant to s 26 of the 1987 Act to the fourth respondent and to the applicant and/or second respondent, upon production of relevant accounts and/or receipts. 11. That, in accordance with the agreement between the parties, there will be an award for the first respondent in relation to any claim by any dependent pursuant to s 28 of the 1987 Act. |
STATEMENT OF REASONS
BACKGROUND
Christian Downes (the worker) died at Royal North Shore Hospital on 9 January 2025 as a result of complications from electrical burns which he had received on 16 December 2024. There is no dispute that he sustained the injuries that led to his death in the course of his employment with T L Vegetation Management Pty Ltd (the first respondent).
The first respondent has admitted 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 has conceded that it is liable to pay an amount of $938,600 pursuant to s 25(1)(a) of the 1987 Act. It advised Megan Bowker (the fourth respondent) in this regard by way of correspondence dated 13 January 2025.
The fourth respondent was the de facto partner of the worker. They were living together at the date of the worker’s death and had been partners since 2014. They had then met while backpacking in Australia, the worker coming from the United Kingdom and the fourth respondent coming from South Africa. The worker is also survived in the United Kingdom by his step-father, Kevin Maddox (the second respondent), and his brothers – Jamie Maddox (the applicant) and Lee Maddox (the third respondent).
By way of an Application in Respect of Death of Worker (ARDW) lodged with the Personal Injury Commission (Commission) by the applicant, the Commission is asked to apportion the amount payable by the first respondent pursuant to s 25(1)(a) of the 1987 Act, between the applicant, the second respondent, the third respondent, and the fourth respondent. The Commission is also asked to make awards in relation to the worker’s funeral expenses, in accordance with s 26 of the 1987 Act.
ISSUES FOR DETERMINATION
The parties have agreed that that the following issues require determination by the Commission:
(a) who was dependent for support on the worker at the date of his death;
(b) how should the amount of $938,600 be apportioned between those dependants, pursuant to s 29 of the 1987 Act, and
(c) how should interest be calculated on the amounts awarded to the dependants, pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to these proceedings understand the nature of the application and the legal implications of any assertion made in the information supplied.
The proceedings were listed for a conciliation conference/arbitration hearing before me on
16 June 2025. On that occasion, the applicant was represented by Mr Tom Grimes of counsel, instructed by Mr Dufour; the first respondent was represented by Mr Ross Hanrahan of counsel, instructed by Ms Risti; the second respondent was represented by Mr Ty Hickey of counsel, instructed by Mr Noussair; the third respondent was represented by Mr Josh Beran of counsel, instructed by Ms Alawie; and the fourth respondent was represented by Mr Adel Saleh of counsel, instructed by Ms Tuco. The applicant, the second respondent, and the third respondent appeared by way of a MS Teams link from the United Kingdom; and the fourth respondent appeared by way of a MS Teams link from South Africa.After extensive conciliation, the parties advised me that they had agreed (subject to the Commission being satisfied) on the lump sum payable by the first respondent pursuant to s 25(1)(a) of the 1987 Act being apportioned as follows:
(a) applicant – 8%;
(b) second respondent – 8%;
(c) third respondent – 8%, and
(d) fourth respondent – 76%.
The parties also advised me that they had agreed on interest being payable on the amounts awarded as follows:
(a) applicant – 2% per annum above the interest rate cash rate set from time to time by the Reserve Bank of Australia – from 24 March 2025 to 16 June 2025;
(b) second respondent - 2% per annum above the interest rate cash rate set from time to time by the Reserve Bank of Australia – from 10 April 2025 to 16 June 2025;
(c) third respondent – 2% per annum above the interest rate cash rate set from time to time by the Reserve Bank of Australia – from 14 April 2025 to 16 June 2025, and
(d) fourth respondent – 2% per annum above the interest rate cash rate set from time to time by the Reserve Bank of Australia – from 14 January 2025 to 16 June 2025.
The parties finally advised me that they had agreed that:
(a) the first respondent would pay funeral expenses pursuant to s 26 of the 1987 Act in the amount of $1,524.60 – to the fourth respondent;
(b) the first respondent would pay funeral expenses pursuant to s 26 of the 1987 Act up to $13,475.40 (upon production of relevant accounts and/or receipts) - to the applicant and/or second respondent, and
(c) there would be an award in favour of the first respondent in relation to any claim pursuant to s 28 of the 1987 Act.
The sole issues (see paragraph 5 above) requiring determination by me were then agreed upon by all parties. In order to assist me with these determinations, I obtained some oral evidence from the second respondent and the fourth respondent.
I am grateful to the parties for their assistance in these proceedings, 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 me and considered in making this determination:
(a) the ARDW and its attached documents;
(b) the first respondent’s Reply (first Reply) and its attached documents;
(c) the second respondent’s Reply (second Reply) and its attached documents;
(d) the third respondent’s Reply (third Reply) and its attached documents;
(e) the fourth respondent’s Reply (fourth Reply) and its attached documents, and
(f) the fourth respondent’s Application to Lodge Additional Documents (fourth respondent’s ALAD) dated 11 June 2025 and its attached documents.
Oral evidence
As noted, the second respondent gave brief oral evidence on 16 June 2025. He confirmed that the worker had never been married in the United Kingdom before the worker migrated to Australia. He also confirmed that to his knowledge, the worker had no children. He further confirmed that to his knowledge, the worker had never had any dealings with his biological father at all.
The fourth respondent then also gave brief oral evidence on 16 June 2025. She confirmed that from the date when she met the worker in 2014 until the date of his death:
(a) he was not in contact with his biological father, and
(b) he had no children with her or anyone else.
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 $750,000 has been indexed, and the parties have agreed that the correct amount to be awarded as at 9 January 2025 was $938,600.
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…”
The fourth respondent was clearly dependent on the worker for support at the date of his death. Her position is summarised in her statutory declaration, declared on 13 January 2025 (found at page 17 of the fourth Reply):
“Christian James Jason Downes and I have been in a De Facto relationship since 2014 (10 years). We have lived together for this period of time and have shared living costs throughout. This includes but is not limited to rent, insurance, subscriptions, groceries, utilities, transport, entertainment and lifestyle expenses”.
Her 12 March 2025 statement (found at page 1 of the fourth Reply) also advises:
(a) she is currently 30-years-of-age;
(b) she met the worker in September/October 2014 – they were at the time both backpackers working on a farm, and they then travelled around Australia together as backpackers;
(c) when her Australian visa expired in May 2016, she moved to New Zealand, and the worker joined her there;
(d) the worker and her returned to Australia in December 2016;
(e) the worker’s and her finances “were linked” - they each paid 50% of their rental expense - in relation to utility bills, she paid for the costs of gas and electricity and the worker paid Internet costs – the worker paid for various subscriptions, and he also paid for their joint private health cover - he also contributed towards food and household maintenance expenses – they had “joint savings”;
(f) the worker and her travelled together within Australia and overseas on numerous occasions;
(g) the worker and her “relied on one another for everything” as they had no other family in Sydney, and
(h) she was also of course dependent on the worker for companionship and emotional support - his loss has understandably left her distraught.
I am also satisfied that the second respondent was dependent on the worker for support at the date of his death. His statement in this regard dated 7 April 2025 is found at page 1 of the second Reply.
He is now 63-years-of-age and not in the best of health, having suffered a stroke in 2020 and had heart surgery in 2021. He is unable to work. He cannot walk long distances, is unable to drive, and requires the use of a wheelchair on occasions. He is paid a United Kingdom disability support benefit, and has no meaningful savings.
He says that although the worker was not his biological son, he “treated Christian the same as my biological children and I considered, and continue to consider, him my son”. The worker had no relationship with the worker’s biological father and “called me Dad”.
After the worker moved to Australia, the worker regularly remained in contact with him by video chat. The worker and the fourth respondent also visited the United Kingdom on three or four occasions to see him and his late wife. Further, the worker and the fourth respondent also paid for him to visit South Africa with them in 2019.
Apart from this financial assistance, I consider that the second respondent also had reasonable expectations that the worker would provide support for him into the future (see TNT Group 4 Pty Limited v Halioris (1987) 8 NSWLR 486 (Halioris)). He says:
“Christian had always said that he would be there to support me financially if I ever needed it. His brothers had also said they would help if needed. After my stroke, Christian would check in with me from time to time and ask if I needed anything. Thankfully before he passed, I was ok but I do not know what the future holds for me. But I know that Christian would have been there to support me if I ever needed anything. Of all my children Christian was always the highest income earner and I believed that if I ever needed anything Christian would be the one who would have contributed the most.”
Whether the applicant and the third respondent (being the worker’s brothers) were dependent on the worker for support is more problematic.
The statement of the applicant dated 13 March 2025 (found at page 10 of the ARDW) and the statement of the third respondent dated 10 April 2025 (found at page 1 of the third Reply) both refer to the very close bond that the worker had with the two brothers, notwithstanding the worker’s move to Australia. The three of them were “friends and brothers” and they “supported each other through challenges”.
The applicant refers to being in constant contact with the worker after the worker’s move to Australia, and the third respondent refers to regularly messaging the worker after that move “checking in on each other and sharing updates about our lives”. Both brothers also mention the worker’s regular contact with the second respondent.
The applicant says:
“Myself, Lee and Christian also joked that we would make sure not to put Dad in a care home, and the expectation was that the 3 of us would all look after him as his medical condition deteriorates.”
In this regard, the third respondent says:
“Christian had always spoken to us about making sure he was able to help out with dad whether it be emotionally or financially.”
The exceptionally close link between the three brothers is apparent as both statements refer to them both immediately travelling to Australia after they heard about the worker’s accident, so that they could be at the worker’s side when the worker passed away.
In accordance with Halioris, I accept that both brothers had reasonable expectations that the worker would financially support them in the future, in relation to the three of them caring for the second respondent.
I also find that both brothers had a significant degree of emotional dependence upon the worker, such that they should be considered to be dependent on the worker for support in this respect also. I agree in this regard with the decision in Youseph v Homebush Unit Trust t/as Primo Smallgoods [2021] NSWPIC 299, where it was held (at [135]):
“It was confirmed in Warilla Timber and Hardware Pty Ltd v Newton, Albury Real Estate Pty Ltd v Rouse and anor and in Richardson that the term ‘support’ in s 25 of the 1987 Act is not limited to financial support, and encompasses other multifactorial aspects including assistance with day-to-day activities and emotional support.”
In that case, the worker’s brother (the second respondent in that case) was found to be partly dependent on the worker even though (at [138-145]):
“The evidence of the second respondent seems to suggest that it was the deceased who was dependent for support on his brother rather than the reverse. He encouraged the deceased to do things to get his mind of his troubles, and it would seem that they enjoyed each other’s company…There is little doubt that the brothers had a strong familial relationship, and they liked to reminisce about old times. That is not unusual in any family situation…There is no evidence that the second respondent received or had any future expectation of financial support, so his support would seem to be limited to emotional support…In the circumstances, I am satisfied that whilst the parties were not financially dependent on the deceased at the time of his death. Rather, they were partly dependent. I do not accept the applicant’s evidence that she was the only person dependent on the deceased at the time of his death. The evidence of her uncle and brothers show that they too were dependent on the deceased for emotional and fatherly support.”
I therefore find that the applicant, the second respondent, the third respondent, and the fourth respondent, were all dependent on the worker for support.
I also find that there were no other persons dependent on the worker for support. In this regard, the evidence establishes the following:
(a) the worker’s grandparents were deceased - see the fourth respondent’s statement dated 11 June 2025 (found at page 1 of the fourth respondent’s ALAD);
(b) the worker’s mother was deceased – see the second respondent’s 7 April 2025 statement;
(c) the worker had no relationship with his biological father - see the second respondent’s 7 April 2025 statement as well as the oral evidence given by both the second respondent and the fourth respondent;
(d) the worker had not been married prior to his relationship with the fourth respondent - see the oral evidence given by the second respondent;
(e) the applicant and the third respondent were the worker’s only brothers - see the applicant’s 13 March 2025 statement, the second respondent’s 7 April 2025 statement, and the third respondent’s 10 April 2025 statement, and
(f) the worker had no children – see the oral evidence given by the second respondent and the fourth respondent.
How should the amount of $938,600 be apportioned between the four dependants, pursuant to s 29 of the 1987 Act
Section 29 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 8 above, the parties have agreed an appropriate apportionment of the lump sum under s 25(1)(a) of the 1987 Act. The agreement in this regard is:
(a) applicant – 8%;
(b) second respondent – 8%;
(c) third respondent – 8%, and
(d) fourth respondent – 76%.
I consider this proposed apportionment to be a sound apportionment of the appropriate lump sum having regard to the dependency level on the worker of each dependent. The apportionment allows the fourth respondent to receive most (over three-quarters) of the lump sum, which is appropriate considering that at the time of the worker’s death, she had been in a close de facto relationship with the worker for over 10 years. They both contributed fairly evenly to their combined financial needs and living expenses. The fourth respondent has now lost this financial support, as well as of course companionship and emotional support.
There was no evidence before me that the fourth respondent’s reliance on the worker in this regard was not likely to continue indefinitely. She had a reasonable expectation of receiving substantial ongoing support from the worker. It is also important to note that the fourth respondent is currently only 30-years-old.
The proposed apportionment also allows the applicant, the second respondent, and the fourth respondent to receive appropriate allowances for their dependence on the worker. Apart from their significant emotional dependence upon the worker, the plan had always been that the worker and his two brothers would financially support the second respondent in his old age, and especially considering his current medical condition. The worker’s death has left a significant gap in this plan, which financially affects them all.
In my opinion, it is appropriate that the applicant, the second respondent, and the third respondent should receive the same percentage apportionment, considering that their reliance on the worker in the implementation of this plan was mutual, and therefore in all likelihood equal.
I therefore propose to approve the apportionment agreed between the parties.
How should interest be calculated on the amounts awarded to the dependants, pursuant to s 109 of the 1998 Act
Section 109 of the 1998 Act 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 9 above, the parties have agreed that an interest rate of 2% per annum above the interest rate cash rate set from time to time by the Reserve Bank of Australia should be paid upon the amounts awarded to each dependant, from the agreed date when each of them provided to the first respondent sufficient evidence of their dependency on the worker.
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 dependants, I am satisfied that it is appropriate to exercise my discretion to award interest. I also consider that the parties have selected the correct period for interest to be awarded, that is, the period from the date when each respondent’s dependency was fully particularised (by the provision to the first respondent of a statutory declaration or statement). See Mudgee Explorer Tours Pty Ltd v Clarke [2021] NSWPIC 41.
In relation to the interest rate to be applied, I have no hesitation in agreeing with the rate of 2% per annum above the interest rate cash rate set from time to time by the Reserve Bank of Australia, proposed by the parties. In doing so, I note the purpose behind interest awards per Pheeney.
SUMMARY
I find that the worker died on 9 January 2025 as a result of injury sustained in the course of his employment with the first respondent, and to which that employment was a substantial contributing factor, pursuant to ss 4 and 9A of the 1987 Act.
I find that the applicant was dependent on the worker for support in accordance with
s 25(1)(a) of the 1987 Act.I find that the second respondent was dependent on the worker for support in accordance with s 25(1)(a) of the 1987 Act.
I find that the third respondent was dependent on the worker for support in accordance with
s 25(1)(a) of the 1987 Act.I find that the fourth respondent was dependent on the worker for support in accordance with s 25(1)(a) of the 1987 Act.
I find that there were no other persons dependent on the worker for support in accordance with s 25(1)(a) of the 1987 Act.
I find that the first respondent is liable to pay the amount of $938,600 pursuant to s 25(1)(a) of the 1987 Act.
I find that the amount of $938,600 is to be apportioned as follows, pursuant to s 29 of the 1987 Act:
(a) applicant – 8% – $75,088;
(b) second respondent – 8% – $75,088;
(c) third respondent – 8% – $75,088, and
(d) fourth respondent – 76% – $713,336.
I find that the first respondent is to pay interest on the amounts awarded to the applicant, the second respondent, the third respondent, and the fourth respondent, as agreed between the parties, pursuant to s 109 of the 1998 Act, as follows:
(a) applicant – 6.1% per annum between 24 March 2025 and 20 May 2025, and 5.85% per annum between 21 May 2025 and 16 June 2025;
(b) second respondent – 6.1% per annum between 10 April 2025 and 20 May 2025, and 5.85% per annum between 21 May 2025 and 16 June 2025;
(c) third respondent – 6.1% per annum between 14 April 2025 and 20 May 2025, and 5.85% per annum between 21 May 2025 and 16 June 2025, and
(d) fourth respondent – 6.35% per annum between 14 January 2025 and 18 February 2025, 6.1% per annum between 19 February 2025 and 20 May 2025, and 5.85% per annum between 21 May 2025 of 16 June 2025.
I note that, in accordance with the agreement between the parties, the first respondent is to pay funeral expenses pursuant to s 26 of the 1987 Act to the fourth respondent and to the applicant and/or second respondent, upon production of relevant accounts and/or receipts.
I note that, in accordance with the agreement between the parties, there will be an award for the first respondent in relation to any claim by any dependent pursuant to s 28 of the 1987 Act.
I order that pursuant to s 85A of the 1987 Act, the first respondent is to pay the applicant the amount of $75,088, together with interest on that amount calculated at $1,040.25.
I order that pursuant to s 85A of the 1987 Act, the first respondent is to pay the second respondent the amount of $75,088, together with interest on that amount calculated at $826.92.
I order that pursuant to s 85A of the 1987 Act, the first respondent is to pay the third respondent the amount of $75,088, together with interest on that amount calculated at $776.72.
I order that pursuant to s 85A of the 1987 Act, the first respondent is to pay the fourth respondent the amount of $713,336, together with interest on that amount calculated at $18,159.61.
I will amend the pleadings in the proceedings to include a claim pursuant to s 28 of the 1987 Act, and I will enter the awards agreed by the parties in relation to the claims pursuant to
ss 26 and 28 of the 1987 Act.
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