McGrath v P.M. Electric Pty Limited - [2023] NSWPICPD 31

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	McGrath v P.M. Electric Pty Limited [2023] NSWPICPD 31
APPELLANT:	Nicole McGrath
FIRST RESPONDENT:	P.M. Electric Pty Limited
SECOND RESPONDENT:	Taleya Amelia McGrath
THIRD RESPONDENT:	Kayden Charles McGrath
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A4-380/21
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	31 May 2023
ORDERS MADE ON APPEAL:	1. Orders 11, 12 and 13 of the Certificate of Determination dated 2 June 2022 are confirmed.
CATCHWORDS:	WORKERS COMPENSATION – interest pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 with respect to lump sum death benefit payable in accordance with s 25 of the Workers Compensation Act 1987 – alleged error of discretion – House v R [1936] HCA 40; 55 CLR 499 applied – held that the rate of inflation is not to be considered in exercising the discretion in s 109 of the Workplace Injury Management and Workers Compensation Act 1998
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr J Hallion, counsel
Owen Hodge Lawyers
First respondent:
Ms L Goodman, counsel
Gair Legal
Second respondent:
Mr T Driscoll, solicitor
Beilby Poulden Costello
Third respondent:
Mr M Calf, solicitor
M.A.C. Calf Lawyers & Associates
DECISION UNDER APPEAL
MEMBER:	Ms K Haddock
DATE OF Member’s DECISION:	2 June 2022

INTRODUCTION AND BACKGROUND FACTS

The appeal is from part of a Certificate of Determination dated 2 June 2022.
The parties agreed that the issues for determination by the Member were:
(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.
The appellant is the widow of Nicholas McGrath who died on 21 September 2019 whilst on a trip to the Formula 1 Grand Prix in Singapore funded by his employer, P.M. Electric Pty Limited (the respondent).
On 8 June 2021, a Member of the Personal Injury Commission (Commission) entered an award for the employer.[1]
[1] McGrath v PM Electric Pty Ltd [2021] NSWPIC 174.
On 4 March 2022, an appeal against that decision was successful and the matter was remitted for re-determination by another member of the Commission.[2] The Deputy President remitted the matter for determination of the issues as to whether:
(a) the injury arose out of or in the course of employment in accordance with s 4 of the 1987 Act;
(b) the deceased’s employment was a substantial contributing factor to the injury in accordance with s 9A of the Workers Compensation Act 1987 (the 1987 Act), and
(c) any remaining issues including in respect of the apportionment of any amount of compensation payable.
[2] McGrath v PM Electric Pty Ltd [2022] NSWPICPD 8.
On 2 June 2022 the re-determination was listed for determination. The substantive claim was resolved by consent in favour of the widow and the dependants. The Member exercised…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWPICPD 31
Decision Date: 31 May 2023

CaseChat Overview and Summary

In the case of McGrath v P.M. Electric Pty Limited, the deceased worker’s estate sought to challenge a decision regarding the interest payable on a lump sum death benefit under workers' compensation laws. The dispute arose from the assessment of interest pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998, concerning a lump sum death benefit payable in accordance with section 25 of the Workers Compensation Act 1987. The central issue before the court was whether the tribunal had properly exercised its discretion in determining the interest rate, particularly whether the rate of inflation should be considered under section 109.

The court was tasked with interpreting the statutory framework and determining the correct exercise of discretion in setting the interest rate. The appellant argued that the tribunal had erred by not considering the rate of inflation when determining the interest rate. The court referenced House v R, applying principles established in that case to the interpretation of the statutory language. The court held that the statutory provisions did not require the tribunal to consider inflation when exercising its discretion. Instead, the court found that the tribunal had correctly exercised its discretion by not considering inflation, and that the decision was consistent with the statutory language and legislative intent.

Following the court's reasoning, the appeal was dismissed. The orders confirmed were those of the Certificate of Determination dated 2 June 2022, which had already been made by the tribunal in relation to the lump sum death benefit and the interest payable thereon. The court’s decision effectively upheld the tribunal’s approach to interest calculation and affirmed the correctness of the interest rate determined.

Orders

Orders of the court

ORDERS MADE ON APPEAL:

1. Orders 11, 12 and 13 of the Certificate of Determination dated 2 June 2022 are confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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