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

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

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

ISSUES FOR DETERMINATION

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)

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

EVIDENCE

Documentary evidence

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

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

CaseChat Overview and Summary

In the case of Maharaj v State of NSW (South Western Sydney Local Health District), the applicant sought to recover a lump sum death benefit pursuant to section 85A of the Workers Compensation Act 1987 (the Act) in relation to the death of her husband, who had been a worker under the South Western Sydney Local Health District. The applicant argued that she was entitled to the lump sum benefit as she was the only beneficiary of her husband's estate and the sole common law next of kin. The respondent, however, contended that the benefit should be paid to the estate of the deceased worker, as the applicant had not been granted probate of the will or letters of administration.

The primary legal issue before the court was whether the applicant, being the sole beneficiary and next of kin, was entitled to receive the lump sum benefit directly or whether it should be paid to the deceased worker's estate. The court had to consider the provisions of section 85A of the Act, which allows for the payment of a lump sum benefit to a person entitled to compensation, and whether this entitled the applicant to the benefit directly. The court also needed to examine the statutory definitions of 'entitled person' and 'next of kin' under the Act to determine if the applicant met the criteria for direct payment.

The court found that the applicant was indeed the sole beneficiary and the next of kin of the deceased worker. The court noted that section 85A of the Act provides for the payment of the lump sum benefit to an 'entitled person', which was defined to include the next of kin. As the applicant was the only beneficiary and next of kin, she met the criteria for being an 'entitled person' under the Act. The court concluded that there was no requirement for the applicant to obtain probate of the will or letters of administration to receive the benefit directly. Consequently, the court held that the lump sum benefit should be paid directly to the applicant as she was the sole common law next of kin and entitled person under the Act.

The final order of the court was that the lump sum benefit be paid directly to the applicant pursuant to section 85A of the Workers Compensation Act 1987. The court ruled that there was no need for the applicant to obtain probate of the will or letters of administration before receiving the benefit. This decision ensures that the applicant, as the sole beneficiary and next of kin, receives the compensation to which she is entitled under the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established