Parramatta City Council v BBU
[2022] NSWPIC 529
•26 September 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Parramatta City Council v BBU & Ors [2022] NSWPIC 529 |
| APPLICANT: | Parramatta City Council |
| FIRST RESPONDENT: | BBU bnf BGB |
| SECOND RESPONDENT: | BCO bnf BFC |
| THIRD RESPONDENT: | BDH |
| Member: | Rachel Homan |
| DATE OF DECISION: | 26 September 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Application for apportionment of lump sum death benefit and orders with respect to payment; identification of dependants; application for interest pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Held – the respondents were the only dependants of the deceased worker; orders for payment of the lump sum pursuant to sections 29(1), 85 and 85A of the 1998 Act; interest to be paid at agreed rate. |
| DETERMINATIONS MADE: | 1. BEJ (the deceased worker), died as a result of an injury sustained in the course of employment with the applicant. 2. BBU, BCO and BDH were dependants of the deceased worker who were wholly or partly dependent for support upon him at the date of his death. 3. There were no other persons wholly or partly dependent for support upon the deceased worker at the date of his death. 4. The lump sum death benefit payable in accordance with s 25(1)(a) of the Workers Compensation Act 1987 is $ $781,900. 5. The lump sum compensation of $781,900 payable pursuant s 25(1)(a) is to be apportioned in accordance with s 29 of the Workers Compensation Act 1987 as follows: (a) $74,280.50 to BBU; (b) $82,099.50 to BCO, and (c) $625,520 to BDH. 6. Interest is to be paid on the sums above at the agreed rate of 2.5% for the period from |
| ORDERS made: | 1. The applicant to pay the amount of $74,280.50 plus interest to the NSW Trustee & Guardian to be held on trust for the benefit of BBU until she attains the age of 18 years, pursuant to s 85(1)(a) of the Workers Compensation Act 1987. 2. The applicant to pay the amount of $82,099.50 plus interest to the NSW Trustee & Guardian to be held on trust for the benefit of BCO until she attains the age of 18 years, pursuant to s 85(1)(a) of the Workers Compensation Act 1987. 3. The applicant to pay the amount of $625,520 plus interest to BDH pursuant to s 85A(1)(a) of the Workers Compensation Act 1987. |
BACKGROUND
Mr BEJ (the deceased worker) was employed by Parramatta City Council (the applicant) when he sustained an injury on 28 May 2012. In December 2017, the deceased worker died as a result of that injury. The deceased worker was 35 years old at the time of his death.
A claim for compensation in respect of the deceased worker’s death was made on
4 November 2021 by the deceased worker’s de facto partner, BDH (the third respondent) on behalf of her and her children, BBU (the first respondent) and BCO (the second respondent). The first and second respondents were 10 and 6 years old respectively at the time of their father’s death.Liability to pay compensation in respect of the death was accepted on 27 May 2022.
An Application in Respect of Death of Worker was lodged in the Personal Injury Commission (the Commission) on behalf of the applicant on 19 July 2022, seeking orders for apportionment and payment of the lump sum death benefit payable under s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act).
PROCEDURE BEFORE THE COMMISSION
The parties appeared for preliminary conference on 30 August 2022. At that conference, it was agreed that the applicable death benefit was $781,900. Orders were made joining the third respondent to the proceedings.
Noting that there was no evidence of attempts to bring the proceedings to the attention of other members of the deceased worker’s family, directions were made requiring the parties to write to those family members to enquire as to their attitude toward the proceedings.
The matter was listed for further conference on 23 September 2022. On that date, directions were made admitting into evidence pursuant to r 67(4) of the Personal Injury Commission Rules 2021, statutory declarations from the deceased worker’s parents, brother and half brother, in which they each confirmed that they were not dependent upon the deceased worker and did not wish to claim a portion of the lump sum death benefit. The parties agreed that there was no other person known to them who might have been dependent upon the deceased worker at the date of his death.
No dispute as to the dependence of the respondents was raised.
The respondents proposed an apportionment of the lump sum death benefit as follows:
(a) $74,280.50 (9.5%) to the first respondent;
(b) $82,099.50 (10.5%) to the second respondent, and
(c) $625,520 (80%) to the third respondent.
The parties informed me that agreement had been reached that interest would be paid on the sums above at the agreed rate of 2.5% for the period from 1 September 2022 to
23 September 2022.It was noted that weekly payments of compensation were already being paid in respect of the first and second respondents pursuant to s 25(1)(b) of the 1987 Act.
ISSUES FOR DETERMINATION
As a result of the acceptance of liability, only the following matters require determination:
(a) identification of any dependants who were wholly or partly dependent for support on the deceased worker in accordance with s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);
(b) orders for apportionment of the lump sum death benefit pursuant to s 29(1) of the 1987 Act, and
(c) orders in relation to payment of the compensation.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application in Respect of Death of Worker (the Application) and attached documents;
(b) Reply lodged by the first respondent and attached documents;
(c) Reply lodged by the second respondent and attached documents;
(d) Reply lodged by the third respondent and attached documents, and
(e) documents attached to an Application to Admit Late Documents lodged by the third respondent on 15 September 2022.
The evidence before me includes the New South Wales death certificate of the deceased worker and the NSW birth certificates of the first and second respondents. These documents confirm that the first and second respondents are the deceased worker’s and the third respondent’s children, born in 2007 and 2011 respectively. The deceased worker was not married at the time of his death but the third respondent was identified as his de facto spouse in the death certificate. The deceased worker’s parents were identified as BHA and BIE in the death certificate.
The third respondent has provided evidence of her dependence upon the deceased worker in a written statement and documentary evidence including, bank statements, council rates notices and utilities invoices.
Statutory declarations prepared by the applicant’s parents, BHA and BIE, as well as the applicant’s brothers, BJG and BKD are in evidence. Those relatives have each confirmed that they were not dependent upon the deceased worker at the time of his death and they do not wish to make a claim for compensation. Each of those relatives was made aware of the availability of independent legal assistance prior to making their declarations.
FINDINGS AND REASONS
Dependants
The term, ‘dependants’ is defined in s 4 of the 1998 Act as:
“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 am satisfied on the evidence before me that the third respondent was the deceased worker’s spouse and that the first and second respondents are the deceased worker’s natural children.
The uncontradicted evidence before me, which I accept, is that the first, second and third respondents were each partially dependent upon the deceased worker at the time of his death.
I am further satisfied that appropriate enquiries have been made and there is no evidence of any other person, apart from the family members identified in the evidence in these proceedings, who may have been dependent on the deceased worker at the time of his death.
The deceased worker’s parents and brothers have each provided written evidence that they were not dependants and did not intend to pursue any claim for a portion of the lump sum death benefit after being informed of their ability to make a claim and obtain independent legal advice.
I find that there were no persons other than the respondents in these proceedings who were wholly or partly dependent for support upon the deceased worker at the date of his 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 (1996) 15 NSWCCR 32 ([at 34]), Egan A-J 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.”
I accept that the third respondent should be entitled to a greater proportion of the lump sum, having regard to the nature of her dependency, her age and future needs. This must be weighed against the dependency of the first and second respondents.
The first and second respondents are both in school and there is an age difference of approximately three years between them. I am satisfied that they would have continued to be dependent on the deceased throughout their youth and school years. I also accept that they would have continued to be dependent on the deceased worker until any tertiary studies concluded.
I accept the sums proposed by the parties are within an appropriate range. Accordingly, the Commission apportions the lump sum payment pursuant to s 29(1) of the 1987 Act as follows:
(a) $74,280.50 (9.5%) to the first respondent;
(b) $82,099.50 (10.5%) to the second respondent; and
(c) $625,520 (80%) to the third respondent.
Payment
The usual practice of the Commission is to pay the sums for minor dependent children to the New South Wales Trustee and Guardian. This ensures that the funds and the interests of the children are protected. I am not satisfied that there is a compelling reason for departing from the usual practice of payment.
The payments for the first and second respondents should be paid to the New South Wales Trustee and Guardian to hold on trust until they respectively turn 18 years of age.
I accept that the sum apportioned to the third respondent should be paid directly to her in accordance with s 85A(1)(a) of the 1987 Act.
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