Maharaj v State of NSW (South Western Sydney Local Heath District)

[2022] NSWPIC 252

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Maharaj v State of NSW (South Western Sydney Local Heath District) [2022] NSWPIC 252

APPLICANT:

Sharmil Maharaj

FIRST RESPONDENT:

State of NSW (South Western Sydney Local Heath District)

SECOND RESPONDENT: 

Charisma Maharaj

THIRD RESPONDENT: 

Komai Maharaj

SENIOR MEMBER:

Elizabeth Beilby

DATE OF DECISION:

27 May 2022

CATCHWORDS:

WORKERS COMPENSATION - Apportionment of lump sum death benefit; Held- lump sum benefit to be paid directly to applicant pursuant to section 85A of the Workers Compensation Act 1987.  

DETERMINATIONS MADE:

1.     I find that the applicant was dependent for support upon the deceased, Praween Maharaj, at the date of his death.

2.     There was no other person dependent upon the deceased, Praween Maharaj, at the date of death.

3. The lump sum benefit payable in accordance with section 25(1)(a) of the Workers Compensation Act 1987 as of the date of death was $827,400.

4. The lump sum of $827,400 is to be paid directly to the applicant pursuant to s 85A of the Workers Compensation Act 1987.

5.     There are other relevant persons who could be or want to be classed as partially or wholly dependant upon the deceased as at the date of death.

STATEMENT OF REASONS

BACKGROUND

1. Mr Praween Maharaj (the deceased) died on 17 April 2020. The employer (the first respondent) has admitted liability in respect of the death and is liable to pay compensation pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act) (the lump sum death benefit).

2. The only substantive issue for determination is the question of dependency and apportionment of the death benefit to the respective parties.

ISSUES FOR DETERMINATION

1. The parties agree that the following issues remain in dispute:

   (a)    dependency at the time of death, and

   (b)    apportionment of the lump sum death benefit.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

1. The claim was listed in the Commission for hearing on 25 May 2022.

EVIDENCE

Documentary evidence

1. The following documents were in evidence before the Commission and taken into account in making this determination:

   (a)    Application to Resolve a Dispute and attached documents;

   (b)    Reply dated 5 April 2022, and

   (c)    Application to Admit Late Documents dated 18 May 2022.

Dependency

1. A dependent is defined in s 4 of the Workplace Injury Management and Workers Compensation Act 1998 to include persons who were “wholly or in part dependent for support on the worker at the time of the worker’s death”.

2. A reasonable expectation that the deceased would provide future support can satisfy the concept of dependency.[1]

   [1] TNT Group 4 Pty Ltd v Halioris (1987) 8 NSWLR 486 at [490].

3. Ms Shamil Maharaj was the wife of the deceased. Two children were born from the marriage, the second and third respondent respectively. They are both now adults.

4. Both children of the deceased have provided instructions that they do not wish to be considered as dependants for the purposes of distribution of the lump sum benefit. There is no evidence before me of any other person who was partially or fully dependent upon the deceased and wishes to make a relevant claim.

5. Ms Shamil Maharaj has provided a statement dated 18 May 2022 which clearly outlines her dependency upon the deceased at the date of death. I therefore find that she was dependent upon the deceased at the date of death.

6. I direct that the lump sum benefit should be paid directly to the applicant.