Omba Pty Ltd ATF Turner Family Trust v Kelly
[2024] NSWPIC 332
•25 June 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Omba Pty Ltd ATF Turner Family Trust v Kelly & Anor [2024] NSWPIC 332 |
| APPLICANT: | Omba Pty Ltd ATF Turner Family Trust |
| FIRST RESPONDENT: SECOND RESPONDENT: | Karen Donna Kelly Charlie Symons Kelly |
| PRINCIPAL MEMBER: | Glenn Capel |
| DATE OF DECISION: | 25 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - 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, 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, Paul Michael Kelly, died on 19 May 2023 as a result of injuries sustained arising out of or in the course of his employment with the applicant. 2. Karen Donna Kelly was partly dependent for support upon the deceased at the date of death. 3. Charlie Symons Kelly was wholly 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. Karen Donna Kelly – $757,435 (85%), and b. Charlie Symons Kelly – $133,665 (15%). 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. Karen Donna Kelly – $4,875.60 (85%), and b. Charlie Symons Kelly – $860.40 (15%). The Commission orders: 8. The applicant to pay the first respondent $762,310.60 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 $134,525.40 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. |
STATEMENT OF REASONS
BACKGROUND
The deceased worker, Paul Michael Kelly died on 19 May 2023 as a result of injuries sustained arising out of or in the course of his employment with Omba Pty Ltd ATF Turner Family Trust (the applicant).
The deceased’s spouse, Karen Donna Kelly (the first respondent), submitted a fatality claim form to the applicant’s insurer, Employers Mutual NSW Ltd (the insurer) on or about
24 May 2023.Liability was accepted by the insurer pursuant to ss 25 and 26 of the Workers Compensation Act1987 (the 1987 Act) on 14 September 2023, subject to a determination of potential dependants.
On 16 February 2024, the applicant’s solicitor, Mr Harris, sent an email to the solicitor for the first respondent seeking particulars of any dependants and documentary evidence in respect of the claim for dependency.
The solicitor for the first respondent provided a response to the request for particulars and attached various statements in a series of emails.
On 8 March 2024, the solicitor for Charlie Symons Kelly (the second respondent) sent an email to Mr Harris and confirmed that she had been instructed to appear on his behalf. Another solicitor was subsequently retained.
The applicant filed an Application in Respect of Death of Worker (the Application) in the Personal Injury Commission (Commission) on 7 May 2024, 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 24 June 2024, I was informed that the parties had reached agreement as to a proposed apportionment as follows:
(a) Karen Donna Kelly – $757,435 (85%), and
(b) Charlie Symons Kelly – $133,665 (15%).
I was also informed that the parties had also reached agreement regarding interest in the sum of $5,736.
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, and
(c) second respondent’s Reply with attachments.
REVIEW OF EVIDENCE
Statement of Karen Donna Kelly
Ms Kelly provided a statement on 25 March 2024. She advised that she married the deceased in 1995 and they had lived together since then. They had three children including the second respondent.
Ms Kelly stated that she was dependent on the deceased for financial and emotional support. They owned several companies and a number of properties. They shared several joint bank accounts.
Ms Kelly indicated that in 2022, the second respondent moved to a property in Nyngan that was managed by his older brother, Jack, so that he was closer to his school and friends. They paid for his clothing, school supplies and other sundry items. Jack was able to feed and house the second respondent at the property.
In a statement dated 28 May 2024, Ms Kelly stated that she and her husband managed the applicant’s farm and their wages were paid into a joint bank account. They also operated a sheep classing business. She still works for the applicant.
Ms Kelly advised that they had a lot of household and business expenses. Her husband’s income paid for private health fund fees, household expenses, insurance, an investment mortgage and their son’s school expenses.
Ms Kelly stated that her husband supported her emotionally. She could not operate the sheep classing business on her own after his death, so it was transferred to her son Jack in June 2023. She still pays for the insurance and business expenses and financially supports the second respondent.
Statement of Charlie Symons Kelly
Charlie Kelly provided a statement on 18 April 2024. He confirmed that he was in year 12 when his father was killed in a work accident. He was living with his brother Jack on a property in Nyngan so he could attend high school and be closer to his friends. He would stay with Jack during the week and go home every two to three weekends.
Mr Kelly stated that his parents would provide me with $100 to $150 every few weeks for fuel and anything that he needed. They did not pay for his accommodation as this was part of Jack’s salary package.
Mr Kelly indicated that his parents worked together as managers of a property and his father had a business as a wool classer. At the time of his father’s death, he had not decided what he would do for a career but was considering doing building or working on a property. He doubted that he would have moved home as he would have required financial support for rent, food and general expenses until he could financially support himself. If he did a building apprenticeship, which is four years long, he would have been financially dependent on his father for at least four years.
Mr Kelly stated that he started working as a builder's apprentice after he finished school but had not yet enrolled at TAFE. He lost his license so he was unable to continue with his job and he had moved back home.
Mr Kelly advised that he is now working on the farm that is managed by his mother for 35 to 40 hours per week, earning approximately $27 per hour the first eight hours and $22 per hour thereafter, but the work is not constant. His mother assists with his day to day expenses and gives him approximately $100 every few weeks. She pays for all of his expenses when he comes home. He was dependent on her at these times and would have been dependent on his father but for his death. Both of their incomes would have been used to assist him with expenses until at least he finished his apprenticeship.
Mr Kelly stated that he will require new vehicle in the future and it is likely that his father would have assisted with the purchase and maintenance of the vehicle. He depended on his father to teach him adult skills, such as car maintenance, property management working with animals, how to class wool and how to run a business. He also relied on his father for emotional support, but this is no longer possible, and he is struggling with his mental health.
Statements of family members
Statements have been provided by Jesse and Jack Kelly, the deceased’s children, Paul and Dorothy Kelly, the deceased’s parents Dorothy Kelly, Neville, Christopher and Michael Kelly, the deceased’s brothers, and Ann Jakins and Danielle Nelson, the deceased’s sisters.
All indicated that they were not dependent on the deceased at the time of his death and did not wish to make a claim.
Documents
The deceased’s marriage and death certificates, and the birth certificate of the second respondent are in evidence. These are not controversial.
The various financial records and invoices are consistent with Ms Kelly’s statements.
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; [1976] HCA 5; 8 ALR 455; 50 ALJR 454, 456, 457 and 459 (Aafjes)).”[4]
[3] [2011] NSWCCPD 6 (Kaur).
[4] Kaur, [126].
It is clear from the first respondent’s statements and the financial documents that the first respondent received income from the sheep classing business and the property management activities. She has continued to undertake the job at the applicant since her husband’s death.
The second respondent was still at high school and he has struggled to secure full-time employment. I expect that his father would have supported him in his career as an apprentice builder until he completed his four year TAFE studies.
In the circumstances I am satisfied that the first respondent was partly dependent and the second respondent was wholly dependent on the deceased at the date of his death.
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.
The first respondent would have had an expectation of ongoing support from the deceased but for his death. They shared finances and emotional support. Her future expectations would be significant.
The second respondent would similarly have an expectation for financial support for at least four years after the deceased’s death and perhaps even longer.
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) Karen Donna Kelly – $757,435 (85%), and
(b) Charlie Symons Kelly – $133,665 (15%).
Interest
The parties have reached agreement as to quantum of interest in the sum of $5,736 to be apportioned as follows:
(a) Karen Donna Kelly – $4,875.60 (85%), and
(b) Charlie Symons Kelly – $860.40 (15%).
FINDINGS
The deceased worker, Paul Michael Kelly, died on 19 May 2023 as a result of injuries sustained arising out of or in the course of his employment with the applicant.
Karen Donna Kelly was partly dependent for support upon the deceased at the date of death.
Charlie Symons Kelly was wholly 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 1998 Act as follows:
a. Karen Donna Kelly – $757,435 (85%), and
b. Charlie Symons Kelly – $133,665 (15%).
Interest on the lump sum of $891,100 pursuant to s 109 of the 1998 Act is agreed as follows:
(a) Karen Donna Kelly – $4,875.60 (85%), and
(b) Charlie Symons Kelly – $860.40 (15%).
ORDERS
The applicant to pay the first respondent $762,310.60 pursuant to s 85A(1)(a) of the 1987 Act and s 109 of the 1998 Act.
The applicant to pay the second respondent $134,525.40 pursuant to s 85A(1)(a) of the 1987 Act and s 109 of the 1998 Act.
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