O'Connor v State of New South Wales (Ambulance Service of NSW)

[2022] NSWPIC 27

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

O’Connor v State of New South Wales (Ambulance Service of NSW) [2022] NSWPIC 27

APPLICANT:

Jannine O’Connor

FIRST RESPONDENT:

State of New South Wales (Ambulance Service of NSW)

SECOND RESPONDENT:

Daniel Morgan O’Conner

THIRD RESPONDENT:

Gail Ann O’Conner

SENIOR MEMBER:

Elizabeth Beilby

DATE OF DETERMINATION:

21 January 2022

CATCHWORDS:

WORKERS COMPENSATION- apportionment of death benefit.

DETERMINATIONS MADE:

1.     I find that the applicant and the second and third respondents were partially dependent for support upon the deceased, Daniel O’Connor, at the date of his death.

2.     There was no other person dependent upon the deceased 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 $810,050.

4. Pursuant to section 29(1)(a) of the Workers Compensation Act 1987, the lump sum benefit is to be apportioned in the following manner:

(a)    $210,050 to the applicant, and

(b)    $300,000 to the second and third respondent.

5.     The first respondent is to pay interest on the benefit from 15 October 2019 at the rate of 2.1% pa.

6.        Funeral expenses are to be reimbursed up to the sum of $15,000 to the first respondent.

STATEMENT OF REASONS

BACKGROUND

1. Mr Daniel O’Connor (the deceased) died 20 June 2019. The employer (the first respondent) has admitted liability in respect of the death and is liable to pay compensation pursuant to section 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 COMMISSION

1. The claim was listed in the Personal Injury Commission for a telephone conference on 14 December 2021. The parties were able to agree to a proposed resolution of the matter at that time.

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)    Replies dated 10 November 2021, 22 November 2021 and 24 November 2021 and 6 November 2020, and

   (c)    Late documents filed on 17 November 2021.

Dependency

1. A dependent is defined in section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) 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. The parties have filed statements to support their applications in this matter. Evidence of dependency has been provided by statement from the applicant and the second and third respondent individually. I will now briefly outline the relationship those parties had with the deceased.

4. Jannine O’Connor has sworn a statutory declaration dated 14 October 2021.

5. Jannine O’Connor married the deceased on 8 January 1977. Two children were born from the marriage, the second and third respondent respectively.

6. Mrs O’Connor outlines her husband’s difficulties following workplace injuries which included physical injuries and psychological injuries. The injury is manifested themselves in  drinking heavily to the extent that the deceased attended rehabilitation for his challenges in that respect.

7. The deceased’s reliance upon alcohol impacted negatively on the marriage and ultimately there was a separation which included a property settlement.

8. At the time of death, Mrs O’Connor was not living with her husband however states that if the alcohol reliance was removed, she was hopeful that there could be some reconciliation.

9. Daniel Morgan O’Connor is the only son of the deceased. He has sworn a statutory declaration dated 23 November 2021. That statement outlines the significant financial contribution that the deceased made to his son. This included provision of air-conditioning in his house, physical assistance at the house, the loan of a motor vehicle, the gift of capital to purchase a car and paying off some tax debts.

10. I accept that the deceased would have assisted the second respondent as and when was required when a need for financial assistance arose.

11. There is no doubt that as of the date of death, Daniel O’Connor had both a financial dependency and anticipated financial dependency into the future.

12. Gail O’Connor is the only daughter of the deceased. She has signed a statutory declaration dated 19 November 2021. The statement outlines the significant financial contribution that the deceased made to his only daughter. This includes financial support during a divorce, assistance with the purchase of motor vehicles, payment for parties and weddings and other general emotional financial assistance.

13. There is no doubt that as of the date of death, Gail O’Connor had both a financial dependency and anticipated financial dependency into the future.

14. I accept that the deceased would have assisted the third respondent as and when was required when a need for financial assistance arose.

15. At the telephone conference, the parties were able to agree to a proposed distribution of the lump sum benefit. I find that the proposed resolution is appropriate and fair in the circumstances. It takes into account the relationship both the applicant and respondents had with the deceased, their actual partial dependency at the date of death and also an anticipation of financial assistance into the future.

16. I endorse the proposed distribution of the lump sum benefit as agreed between the parties.

17. There is no evidence that anyone else was dependent upon the deceased as at the date of death.

Funeral Expenses

1. There is no issue that incurred funeral expenses should be reimbursed up to the sum of $15,000.

Interest

1. A claim is made in respect of interest by the applicant and the second and third respondents. The parties were able to agree in respect of the entitlement to interest. The agreement is that the first respondent will pay interest at the rate of 2.1% pa from 15 October 2019.