McKeon Earthmoving Pty Ltd ATF R W & G L McKeon Family Trust v McKeon
[2025] NSWPIC 350
•23 July 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | McKeon Earthmoving Pty Ltd ATF R W & G L McKeon Family Trust v McKeon & Anor [2025] NSWPIC 350 |
| APPLICANT: | McKeon Earthmoving Pty Ltd ATF R W & G L McKeon Family Trust |
| FIRST RESPONDENT: | Robert McKeon |
| SECOND RESPONDENT: | Gay Lorraine McKeon |
| PRINCIPAL MEMBER: | Glenn Capel |
| DATE OF DECISION: | 23 July 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; Workplace Injury Management and Workers Compensation Act 1998; death claim; determination of dependency, apportionment, and payment of death benefit and interest; TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd, and Wratten v Kirkpatrick & Ors discussed and applied; Held – death benefit and agreed interest apportioned and orders for payment. |
| DETERMINATIONS MADE: | The Commission determines: 1. The deceased worker, Joel Robert McKeon, died on 19 June 2023 as a result of injuries sustained arising out of or in the course of his employment with the applicant. 2. Robert McKeon was partly dependent for support upon the deceased at the date of death. 3. Gay Lorraine McKeon was partly dependent for support upon the deceased at the date of death. 4. The deceased had no other persons dependent on him. 5. The applicant is liable for the payment of lump sum compensation and interest. 6. The lump sum compensation of $891,100 payable pursuant to s 25(1)(a) of the Workers Compensation Act 1987 is to be apportioned in accordance with s 29 of the Workers Compensation Act 1987 as follows: (a) Robert McKeon – $445,550 (50%), and (b) Gay Lorraine McKeon – $445,550 (50%). 7. Interest on the lump sum of $891,100 pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 is agreed as follows: (a) Robert McKeon – $3,641.91, and (b) Gay Lorraine McKeon – $3,499.09. The Commission orders: 8. The applicant to pay the first respondent $449.191.91 pursuant to s 85A(1)(a) of the Workers Compensation Act 1987 and s 109 of the Workplace Injury Management and Workers Compensation Act 1998. 9. The applicant to pay the second respondent $449,049.09 pursuant to s 85A(1)(a) of the Workers Compensation Act 1987 and s 109 of the Workplace Injury Management and Workers Compensation Act 1998. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
The deceased worker, Joel Robert McKeon, died on 19 June 2023 as a result of injuries sustained arising out of or in the course of his employment with McKeon Earthmoving Pty Ltd ATF R W & G L McKeon Family Trust (the applicant).
On 23 January 2025, the applicant’s solicitor, Mr Harris, sent an email to Mr Rigon of Perrots Solicitors seeking various documents and particulars of any dependants of the deceased.
On 28 January 2025, Mr Rigon provided a response to the request for particulars and attached copies of the autopsy report and birth certificates. He advised that claims would be made by the deceased’s parents, Robert McKeon (the first respondent) and Gay Lorraine McKeon (the second respondent). He advised that he would be making a claim on behalf of the first respondent and that the second respondent would be obtaining separate legal representation.
Liability was accepted by icare (the insurer) pursuant to ss 25 and 26 of the Workers Compensation Act1987 (the 1987 Act) on 14 February 2025, subject to a determination of potential dependants.
Mr Harris sought further particulars on 12 February 2025 and 17 February 2025 regarding potential dependants and the funeral expenses.
On 4 March 2025, Mr Rigon advised that he would obtain statutory declarations from the deceased’s siblings and indicated that they did not wish to make a claim.
The applicant filed an Application in Respect of Death of Worker (the Application) in the Personal Injury Commission (Commission) on 18 June 2025, seeking payment of the lump sum death benefit of $891,100 in accordance with s 25(1)(a) of the 1987 Act, apportionment of the benefit in accordance with s 29 of the 1987 Act and an order authorising payment of the lump sum pursuant to s 85A(1)(a) of the 1987 Act.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. The parties were advised of the intention to determine the dispute without holding a conciliation conference or arbitration hearing.
At a preliminary conference on 23 July 2025, I was informed that the parties had reached agreement as to a proposed apportionment as follows:
(a) Robert McKeon – $445,550 (50%), and
(b) Gay Lorraine McKeon – $445,550 (50%).
I was also informed that the parties had reached agreement regarding interest at the rate of 5.85% from 3 June 2025 to 23 July 2025 in respect of the first respondent ($3,641.91) and from 5 June 2025 to 23 July 2025 in respect of the second respondent ($3,499.09).
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether there were any persons wholly or partly dependent on the deceased –
s 25 of the 1987 Act;(b) apportionment of the lump sum of $891,100 payable – s 29 of the 1987 Act, and
(c) orders in relation to payment of the compensation and interest– ss 25 and 85A(1)(a) of the 1987 Act, and s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents;
(b) first respondent’s Reply with attachments;
(c) second respondent’s Reply with attachments, and
(d) Application to Lodge Additional Documents received on 22 July 2025.
REVIEW OF EVIDENCE
Statutory declaration of Robert McKeon
Robert McKeon provided a statutory declaration on 30 May 2025. He advised that he had been married to his wife since 1973 and that had three children. They owned three properties and when the deceased returned to home in 2018, he took over the running of the farms.
Mr McKeon stated that the deceased looked after the finances, prepared breakfast, assisted to maintain fences, baited foxes, mustered sheep on a motorbike and did general farm work. He was paid a small wage of $600 per week, but did not pay for board or food.
Mr McKeon advised that they had become more and more dependent on him, and they expected that he would eventually move into the family house and take over control of the farms and he would pay them rent that would provide for their future income. Since his death, they have had to increase their workloads. They were emotionally, physically and financially dependent on the deceased at the time of his death.
Statutory declaration and statements of Gay McKeon
Gay McKeon provided a brief statutory declaration on 5 June 2025. She advised that she had read the contents of her husband’s declaration and agreed with its contents.
In a statement dated 9 July 2025, Ms McKeon confirmed that her late son returned to the property in 2018 and worked on the farm with them. She advised that she was partly dependent on the deceased at the time of his death. He contributed to her financial maintenance by paying household expenses such as groceries and petrol. He also provided substantial and regular assistance around the home, such as cooking, garden, household and motor vehicle maintenance, caring for their dogs and cutting firewood.
Ms McKeon advised that her income was that received as a part owner of the farming business and casual work as a nurse. Since her son’s death, she has struggled to manage the tasks that he used to perform. She could no longer undertake as much nursing work, and this impacted on her finances. They had talked about him staying in the house and he had confirmed that he would continue to care for them as they grew older.
In a statement dated 19 July 2025, Ms McKeon advised that she resumed casual nursing duties when her son returned to live on the farm in 2018. She continued to perform this work until November 2025.
Statutory declarations of family members
Statutory declarations have been provided by Mark McKeon, the deceased’s brother, and Janelle Ward, the deceased’s sister.
They both indicated that they were both close to the deceased, but they were not dependent on him at the time of his death and did not wish to make a claim.
Documents
The deceased’s death certificate, and the birth certificates of the first and second respondents and the deceased’s siblings are in evidence. These are not controversial.
SUBMISSIONS
I did not call for submissions in relation to the dispute. I am satisfied that the parties have considered their respective rights.
In TNT Group 4 Pty Limited v Halioris,[1] McHugh JA stated:
“Dependency is a question of fact: Potts v Niddre & Benhar Coal Co Ltd [1913] AC 531 at 539, 542; Aafjes v Kearney (1976) 50 ALJR 454 at 456, 457 and 459. It is concerned with actual and not theoretical support. A person claiming dependency need not be in actual receipt of support at the date of death. It is enough that, as at that date, he or she had a reasonable expectation of support in the future. Dependency may exist at the date of death although actual support cannot or is unlikely to occur until a future time.”[2]
[1] (1987) 3 NSWCCR 10; 8 NSWLR 486, (Halioris).
[2] Halioris, [489].
Further, in Kaur v Thales Underwater Systems Pty Ltd,[3] President Keating stated:
“The question whether there is in fact dependence or reliance at the date of death is not to be answered by looking only to the circumstances as they existed at that date; ‘past events and future probabilities’ have to be considered. (Aafjes v Kearney 180 CLR 199; 01; 8 ALR 455; 50 ALJR 454, 456, 457 and 459 (Aafjes)).”[4]
[3] [2011] NSWCCPD 6 (Kaur).
[4] Kaur, [126].
Both respondents conducted a farming business and received income, so it could not be said that they were wholly dependent on the deceased. However, it is clear from the evidence that they both relied on the deceased to undertake many of the tasks associated with the properties and I am satisfied that both respondents were partly dependant on the deceased at the date of his death.
Although none of the statements indicate that there were no other potential dependants, I am satisfied that there were no other persons wholly or partly dependent on him at the date of death.
Apportionment
In order to apportion the lump sum, it is necessary to review all of the relevant facts disclosed in the evidence. In Wratten v Kirkpatrick,[5] Egan A-CCJ stated:
“The exercise of power to determine the correct amount to be apportioned to each dependant requires an examination of all relevant facts including the extent of past dependence, the anticipated future dependence, the ages of the dependants, their health, special needs, lifestyle, etc.”[6]
[5] (1996) 15 NSWCCR 32 (Wratten).
[6] Wratten, [34].
Each case requires an examination of the individual facts as no two matters are identical. The parties came to a preliminary agreement in relation to apportionment of the lump sum death benefit and this was confirmed by the legal preservatives at the preliminary conference.
I am satisfied that both respondents would have had similar expectations, given their close ages and their situations.
Having regard to the totality of the evidence, the apportionment suggested by the parties is in my view appropriate and properly reflects their respective expectations and entitlements.
Accordingly, the lump sum benefit of $891,100 will be apportioned as follows:
(a) Robert McKeon – $445,550 (50%), and
(b) Gay Lorraine McKeon – $445,550 (50%).
Interest
The parties have reached agreement as to quantum of interest as follows:
(a) Robert McKeon – $3,641.91, and
(b) Gay Lorraine McKeon – $3,499.09.
FINDINGS
The deceased worker, Joel Robert McKeon, died on 19 June 2023 as a result of injuries sustained arising out of or in the course of his employment with the applicant.
Robert McKeon was partly dependent for support upon the deceased at the date of death.
Gay Lorraine McKeon was partly dependent for support upon the deceased at the date of death.
The deceased had no other persons dependent on him.
The applicant is liable for the payment of lump sum compensation and interest.
The lump sum compensation of $891,100 payable pursuant to s 25(1)(a) of the 1987 Act is to be apportioned in accordance with s 29 of the 1987 Act as follows:
(a) Robert McKeon – $445,550 (50%), and
(b) Gay Lorraine McKeon – $445,550 (50%).
Interest on the lump sum of $891,100 pursuant to s 109 of the 1998 Act is agreed as follows:
(a) Robert McKeon – $3,641.91, and
(b) Gay Lorraine McKeon – $3,499.09 (50%).
ORDERS
The applicant to pay the first respondent $449,191.91 pursuant to s 85A(1)(a) of the 1987 Act and s 109 of the 1998 Act.
The applicant to pay the second respondent $449,049.09 pursuant to s 85A(1)(a) of the 1987 Act and s 109 of the 1998 Act.
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