Nightingale Transport (Qld) Pty Limited v Boulmetis

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nightingale Transport (QLD) Pty Limited v Boulmetis and Others [2022] NSWPIC 366
APPLICANT:	Nightingale Transport (QLD) Pty Limited
FIRST RESPONDENT:	Nicholas Christopher Boulmetis
SECOND RESPONDENT:	Michael Neville Boulmetis
THIRD RESPONDENT:	Stephanie Marie Mustart
FOURTH RESPONDENT:	Alexander Harry Boulmetis
FIFTH RESPONDENT:	Maria Boulmetis
MEMBER:	Gauis Whiffin
DATE OF DECISION:	7 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for benefits in respect of the death of a worker; apportionment of section 25(1)(a) of the Workers Compensation Act 1987 (1987 Act) lump sum and interest agreed between the parties; consideration of respondents’ (dependants’) statements, claim correspondence, and factual material; consideration of who was dependent for support on the worker at the date of his death; TNT Group 4 Pty Limited v Halioris considered; consideration of appropriateness of apportionment agreed between the parties; consideration as to interest awards under section 109 of the Workplace Injury Management and Workers Compensation Act 1998; Pheeney v Doolan (No 2) and Mudgee Explorer Tours Pty Ltd v Clarke considered; Held – no other persons but the respondents dependent for support on the worker at the date of his death; apportionment of section 25(1)(a) of the 1987 Act lump sum as agreed between the parties approved; interest at 2.4% per annum awarded from the date each respondent fully particularised their claims; as agreed between the parties; awards for each respondent made including interest.
DETERMINATIONS MADE:	1. That Dennis Boulmetis (the worker) died on 22 October 2017 as a result of injury arising out of or in the course of his employment with the applicant, pursuant to s 4 of the Workers Compensation Act 1987. 2. That the worker’s employment was a substantial contributing factor to the injury, pursuant to s 9A of the Workers Compensation Act 1987. 3. That the first respondent was partly dependent for support on the worker at the date of his death. 4. That the second respondent was partly dependent for support on the worker at the date of his death. 5. That the third respondent was partly dependent for support on the worker at the date of his death. 6. That the fourth respondent was partly dependent for support on the worker at the date of his death. 7. That the fifth respondent was partly dependent for support on the worker at the date of his death. 8. That there were no other persons dependent for support on the worker at the date of his death. 9. That the applicant is liable to pay the amount of $781,900 pursuant to s 25(1)(a) of the Workers Compensation Act 1987. 10. That the amount of $781,900 is to be apportioned between the respondents as follows, pursuant to s 29 of the Workers Compensation Act 1987: (a) first respondent - $188,225; (b) second respondent - $188,225; (c) third respondent - $188,225; (d) fourth respondent - $188,225; and (e) fifth respondent - $29,000. 11. That the applicant pay interest at the rate of 2.4% per annum on the amounts awarded to the respondents, from the dates when their dependency statements were received by the applicant, pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1988.
ORDERS MADE:	12. The applicant is to pay the first respondent the amount of $188,225 together with interest on that amount at the rate of 2.4% per annum from 8 March 2022 to 7 July 2022. 13. The applicant is to pay the second respondent the amount of $188,225 together with interest on that amount at the rate of 2.4% per annum from 1 March 2022 to 7 July 2022. 14. The applicant is to pay the third respondent the amount of $188,225 together with interest on that amount at the rate of 2.4% per annum from 23 March 2022 to 7 July 2022. 15. The applicant is to pay the fourth respondent the amount of $188,225 together with interest on that amount at the rate of 2.4% per annum from 7 March 2022 to 7 July 2022. 16. The applicant is to pay the fifth respondent the amount of $29,000 together with interest on that amount at the rate of 2.4% per annum from 18 May 2022 to 24 June 2022. 17. The applicant is to pay funeral expenses, on production of receipts, and pursuant to s 26 of the Workers Compensation Act 1987, in the following amounts: (a) $5,000 to the second respondent, and (b) $10,000 to the fifth respondent.

STATEMENT OF REASONS

BACKGROUND

Dennis Boulmetis (the worker) died in Parkes, New South Wales, after suffering multiple injuries in a motor vehicle accident on 22 October 2017. He was at the time in the course of his employment with Nightingale Transport (QLD) Pty Limited (the applicant).
The applicant 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 submitted an Application in Respect of Death of Worker (the Application) to the Personal Injury Commission (the Commission). The Application was initially lodged with the Commission on 1 December 2021 and was then amended on 15 February 2022. The applicant has conceded that it is liable to pay an amount of $781,900 pursuant to s 25(1)(a) of the 1987 Act.
Replies to the Application have been lodged by five alleged dependants of the worker’s at the date of his death. Nicholas Christopher Boulmetis (the first respondent) is his
31-year-old son. Michael Neville Boulmetis (the second respondent) is his 34-year-old son. Stephanie Marie Mustart (the third respondent) is his 32-year-old daughter. Alexander Harry Boulmetis (the fourth respondent) is his 28-year-old son. Maria Boulmetis (the fifth respondent) is his 88-year-old mother.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain to be determined by the Commission:
(a) Who was dependent for support on the worker at the date of his death?
(b) How should the amount of $781,900 be apportioned between those dependants, pursuant to s 29 of the 1987 Act?

(c) Are the dependants entitled to interest on the amounts awarded to them, pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1988 Act)?

(d) What orders should be made regarding the worker’s funeral expenses, pursuant to s 26 of the 1987 Act?

PROCEDURE BEFORE THE COMMISSION

The Application proceeded to teleconference before the Commission. Orders were made for the provision of written submissions by all parties regarding the issues to be determined. These have been provided.
Mr Misha Hammond of counsel (instructed by Somerville Laundry Lomax) provided submissions on behalf of the first respondent. Mr Andrew Parker of counsel (instructed by Bourke Legal) provided submissions on behalf of the second respondent. Ms Jodie Magee of counsel (instructed by Law Partners) provided submissions on behalf of the third respondent. Mr Larry Brazel of counsel (instructed by Hosie & Partners) provided submissions on behalf of the fourth respondent. Ms Bond (solicitor) provided submissions on behalf of the fifth respondent. Ms Petrolo (solicitor for the applicant) provided an email to the Commission on 22 June 2022 confirming orders that she sought the Commission to make.
As the written submissions have been reduced to writing, they form part of the Commission’s record and I will not go through them in detail. From a perusal of the various submissions however, it is apparent that the respondents have agreed on the orders sought from the Commission. The applicant also confirmed its agreement in this regard in the 22 June 2022 email from Ms Petrolo.
It remains for the Commission to be satisfied as to the appropriateness of the orders sought, and to make appropriate findings determining the issues in dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application amended on 15 February 2022 and its attached documents (specifically documentation from NSW Ambulance, the NSW Police Force, and the Coroner regarding the circumstances surrounding the worker’s death, as well as documentation regarding the applicant’s attempts to identify potential dependants of the worker’s);
(b)    the first respondent’s Reply and its attached statutory declaration from that respondent regarding his dependency – lodged with the Commission and served on the applicant on 8 March 2022;
(c)    the second respondent’s Reply and its attached statutory declaration from that respondent regarding his dependency – lodged with the Commission on 28 February 2022 and served on the applicant on 1 March 2022;
(d)    the third respondent’s Reply lodged with the Commission on 5 May 2022; as well as her statutory declaration regarding her dependency – the statutory declaration was lodged as a late document with the Commission on 24 March 2022 and served on the applicant on 23 March 2022;

(e)    the fourth respondent’s Reply and its attached statutory declaration from that respondent regarding his dependency – lodged with the Commission and served on the applicant on 7 March 2022;
(f)    the fifth respondent’s Reply lodged with the Commission on 1 March 2022; as well as her statement regarding her dependency – the statement was lodged as a late document with the Commission on 19 May 2022 and served on the applicant on 18 May 2022;
(g)    a further statement from the fourth respondent (questioning the fifth respondent’s dependency) lodged as a late document with the Commission on 22 April 2022; and
(h)    an Application to Admit Late Documents lodged by the applicant on 10 January 2022 – attaching a statement from Ms Petrolo regarding her investigation into the worker’s potential dependants.

Oral evidence

There was no oral evidence called.

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…”
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…”
I have carefully considered the statutory declarations and statements of the five respondents. The first four respondents are adult children of the worker’s. They all clearly had maintained strong relationships with him, and he continued to assist them all financially. He bought them gifts, paid various living expenses of theirs, and often provided them with cash. He also supported them with gratuitous assistance and emotional support. The second respondent (and oldest child) summarises (page 2 of his Reply):
“Dad was always caring and making sure that us kids had everything we needed and was never afraid to support us financially if we needed a hand. I have no doubt he would have continued to be like that into the future”.
The accounts of each child are supportive of the dependence of their siblings. I have no difficulty in finding that each child was partly dependent for support upon the worker at the date of his death. The worker was highly regarded by his children as a loving and supportive father. They had a reasonable expectation that he would provide support for them into the future. See TNT Group 4 Pty Limited v Halioris (1987) 8 NSWLR 486.
In relation to the fifth respondent (the mother of the worker), she states (page 1 of her Reply) that he assisted her with shopping, transport to appointments, and home maintenance. “He would always come and see me when he was back in Sydney and when he came over he would help me out”.
The other four respondents dispute the extent to which the worker would have been able to provide the assistance stated by the fifth respondent, due to the nature of his work commitments as a truck driver. The fourth respondent provided a statement dated 22 April 2022 in which he stated that the worker “did not always visit my grandmother” when he was back in Sydney from his work, and that he “was not regularly available to undertake handyman activities” for her.
In the circumstances, I am willing to accept the evidence of the fifth respondent that she received some support from the worker at the date of his death, even if the extent of that support may have been slightly over-stated in her statement. I accept this evidence specifically in light of the agreement that has been made between all five respondents as to the amount of the lump sum under s 25 of the 1987 Act to be apportioned to her for the level of her dependency.
It remains therefore for me to determine that there were no persons other than the five respondents who were dependent upon the worker at the date of his death.
Ms Petrolo has provided a very helpful statement in this regard dated 10 January 2022 (page 183 of the Application), as well as a very helpful statutory declaration sworn 15 February 2022 (page 188 of the Application).
It is apparent that prior to the Application being lodged, Ms Petrolo had had discussions with the solicitors for the first respondent, and a list of potential dependants had been prepared (see page 6 of the Application). Apart from the five respondents, that list included:
(a)    the worker’s former spouse, Francine Burgess (also known as Francine Bootfield);
(b)    the worker’s former partner, Suzanna Dakis;
(c)    the worker’s father, Michael Boulmetis;
(d)    the worker’s brother, Harry Boulmetis;
(e)    the worker’s sisters, Voula Boulmetis, Dimitra Boulmetis, and Helen Boulmetis.
In relation to Francine Burgess, she is the mother of the first four respondents. She and the worker divorced in around 1997, and the statutory declarations from the first four respondents make it clear that both parents then still played significant roles in the upbringing of their children. The statutory declarations however do not provide much information regarding Francine Burgess after the first four respondents reached adulthood. It is reasonable to infer that any dependency upon the worker that may have been applicable to her while the first four respondents were children would have ceased when they reached adulthood. It is also relevant to note that she was aware of the Application through correspondence forwarded to her by Ms Petrolo dated 20 December 2021 and 10 February 2022, and that she advised a solicitor at Ms Petrolo’s office by telephone that she did not wish to make a claim for dependency upon the worker (see page 189 of the Application). In those circumstances, I find no dependency of Francine Burgess upon the worker at the date of his death.
In relation to Suzanna Dakis, she provided an email to Ms Petrolo on 21 December 2021 (page 80 of the applicant’s 10 January 2022 Application to Admit Late Documents). In that email, she advised that she did not wish to make a claim for dependency upon the worker, and she also advised that she was not a former partner of the worker’s but just a very close friend of his. I infer from the email that she would have advised had she been in any way dependent upon the worker, and I therefore find no dependency of Suzanna Dakis upon the worker at the date of his death.
In relation to Michael Boulmetis, despite her best endeavours, Ms Petrolo has been unable to contact him. However, she was informed by Helen Boulmetis that “the deceased has had no contact with his father since the age of about 16 as his father left, and she has no idea of his address” (see page 185 of the Application). In those circumstances, I find no dependency of Michael Boulmetis upon the worker at the date of his death.
In relation to Harry Boulmetis, he has sworn a statutory declaration on 11 February 2022 (page 205 of the Application) declaring that he was not dependent upon the worker, and does not wish to claim dependency upon him as a result. I therefore find no dependency of Harry Boulmetis upon the worker at the date of his death.
In relation to Voula Boulmetis and Dimitra Boulmetis, again despite her best endeavours, Ms Petrolo has been unable to contact them. Their sister, Helen Boulmetis, was even unable to assist in this regard. There is evidence however (see page 189 of the Application) that the daughter of Voula Boulmetis (Korinna Gouros) informed a solicitor at Ms Petrolo’s office that her mother had received and was aware of correspondence forwarded to her by Ms Petrolo on 10 February 2022 (correspondence at pages 210-212 of the Application). It seems to me that Voula Boulmetis and Dimitra Boulmetis have lost contact with their siblings, and I therefore find no dependency of them upon the work at the date of his death.
In relation to Helen Boulmetis, she has sworn a statutory declaration on 11 February 2022 (page 214 of the Application) declaring that she was not dependent upon the worker, and does not wish to claim dependency upon him as a result. I therefore find no dependency of Helen Boulmetis upon the worker at the date of his death.
Having regard to the clearly close relationships which existed between the worker and the five respondents (as evidenced in their statutory declarations and statement), I am satisfied that they would have been aware as to any other persons dependent upon the worker. Therefore, the lack of evidence from all of them in this regard supports a finding not only that the persons referred to at paragraph 20 above were not dependent upon the worker at the date of his death, but that no other persons were dependent upon him at the date of his death.
I am satisfied from the entirety of the evidence that there were no other persons dependent upon the worker for support at the date of his death.

How should the amount of $781,900 be apportioned between those 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 7 above, the five respondents and the applicant have agreed an appropriate apportionment of the lump sum under s 25 of the 1987 Act. The agreement in this regard is:
(a)    first respondent – $188,225;
(b)    second respondent – $188,225;
(c)    third respondent – $188,225;
(d)    fourth respondent – $188,225, and
(e)    fifth respondent - $29,000.
I consider this proposed apportionment to be a sound apportionment of the appropriate lump sum having regard to the dependency level upon the worker of each respondent. The apportionment allows the fifth respondent to receive a small amount to take into account the support she received from the worker, and it otherwise divides the appropriate lump sum evenly between the worker’s four adult children. Given there is little difference in age between the children, I find this appropriate. I also find that the agreement between the children as to the even apportionment is a strong indicator that they all expected each of them to receive similar amounts of support from the worker into the future.

I therefore propose to approve the apportionment agreed between the parties.

Are the dependants entitled to interest on the amounts awarded to them, pursuant to s 109 of the 1998 Act

Section 109 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 7 above, the five respondents and the applicant have also agreed that an interest rate of 2.4% per annum should be paid upon the amounts awarded to each respondent from the date when the applicant received each respondent’s statutory declaration or statement as to dependency.
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 applicant to pay interest to the respondents, 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 between the date when each respondent’s dependency was fully particularised (by the provision of a statutory declaration or statement) and the date of this decision. 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 2.4% per annum proposed by the parties. In doing so, I note the purpose behind interest awards per Pheeney. I also note that although my review of recent decisions by the Commission reveal interest rates of around 2% being awarded, the Reserve Bank has recently raised the cash rate.

What orders should be made regarding the worker’s funeral expenses, pursuant to s 26 of the 1987 Act

The agreement reached between the applicant and the respondents also includes an order that amounts be paid by the applicant regarding the worker’s funeral expenses. Although the Application did not refer to any claim for such expenses, I have no problem in making the orders sought by the parties in this regard.

SUMMARY

I find that the worker died on 22 October 2017 as a result of injury arising out of or in the course of his employment with the applicant, pursuant to s 4 of the 1987 Act.
I find that the worker’s employment was a substantial contributing factor to the injury, pursuant to s 9A of the 1987 Act.
I find that the first respondent was partly dependent for support on the worker at the date of his death.
I find that the second respondent was partly dependent for support on the worker at the date of his death.
I find that the third respondent was partly dependent for support on the worker at the date of his death.
I find that the fourth respondent was partly dependent for support on the worker at the date of his death.
I find that the fifth respondent was partly dependent for support on the worker at the date of his death.
I find that there were no other persons dependent for support on the worker at the date of his death.
I determine that the applicant is liable to pay the amount of $781,900 pursuant to s 25(1)(a) of the 1987 Act.
I determine that the amount of $781,900 is to be apportioned between the respondents as follows, pursuant to s 29 of the 1987 Act:
(a)     first respondent - $188,225;
(b)     second respondent - $188,225;
(c)     third respondent - $188,225;
(d)     fourth respondent - $188,225; and
(e)     fifth respondent - $29,000.
I determine that the applicant pay interest at the rate of 2.4% per annum on the amounts awarded to the respondents, from the dates when their dependency statements were received by the applicant, pursuant to s 109 of the 1988 Act.
The applicant is to pay the first respondent the amount of $188,225 together with interest on that amount at the rate of 2.4% per annum from 8 March 2022 to 7 July 2022.
The applicant is to pay the second respondent the amount of $188,225 together with interest on that amount at the rate of 2.4% per annum from 1 March 2022 to 7 July 2022.
The applicant is to pay the third respondent the amount of $188,225 together with interest on that amount at the rate of 2.4% per annum from 23 March 2022 to 7 July 2022.
The applicant is to pay the fourth respondent the amount of $188,225 together with interest on that amount at the rate of 2.4% per annum from 7 March 2022 to 7 July 2022.
The applicant is to pay the fifth respondent the amount of $29,000 together with interest on that amount at the rate of 2.4% per annum from 18 May 2022 to 24 June 2022.
The applicant is to pay funeral expenses, on production of receipts, and pursuant to s 26 of the 1987 Act, in the following amounts:
(c) $5,000 to the second respondent, and
(d) $10,000 to the fifth respondent.

[2022] NSWPIC 366

7 July 2022