Powell v McClenahan & Ors - [2024] NSWPIC 139

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Powell v McClenahan & Ors [2024] NSWPIC 139
APPLICANT:	Jane Margaret Powell
FIRST RESPONDENT:	Wincott Enterprises Trustee for the James Winter Family Trust trading as SSJ Farming
SECOND RESPONDENT:	Jason Paul McClenahan
THIRD RESPONDENT:	Blake James McClenahan
FOURTH RESPONDENT:	Bruce Ronald McClenahan
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	21 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum death benefit and interest on lump sum; liability accepted; matter had lengthy history, with two prior Applications being discontinued; parties agreed on proposed apportionment of lump sum death benefit, and findings and orders made; parties unable to agree on resolution of claim for interest, and direction for submissions made; consideration of Haidary v Wandella Pet Foods Pty Limited, Dynamix Pty Ltd and Burrangong Pet Foods Pty Ltd, Kaur v Thales Underwater Systems Pty Ltd, Kathryn Ann Kratz as executrix of the estate of the Late Owen Beddall v Qantas Airways Limited, Shanika Cooper v G & W Mudge Concreting Pty Ltd & Ors, Delta Services Pty Ltd v BBV & Ors, Lavelle v David Paul Browne & others, Bennett v Jones, Beves v Patrick Stevedores No 2 Pty Ltd & Anor, Goulburn Flight Training Centre Pty Limited v Druck & Ors, AFF Properties Pty Ltd v Robovich & Ors, BDU by next friend BKO & Ots v State of New South Wales (NSW Police Force) & Ors; Held – award of interest to applicant, second respondent, third respondent and fourth respondent from date on which each party’s claim was duly made to date when orders for payment of lump sum made; interest awarded at rate that is 2% above applicable Reserve Bank of Australia cash rate.
DETERMINATIONS MADE:	The Commission determines: 1. The first respondent is to pay to the applicant, pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998, interest on the sum of $508,235 as follows: (a) from 20 June 2019 to 2 July 2019 at the rate of 3.25% per annum; (b) from 3 July 2019 to 1 October 2019 at the rate of 3.00% per annum; (c) from 2 October 2019 to 3 March 2020 at the rate of 2.75% per annum; (d) from 4 March 2020 to 19 March 2020 at the rate of 2.50% per annum; (e) from 20 March 2020 to 3 November 2020 at the rate of 2.25% per annum; (f) from 4 November 2020 to 3 May 2022 at the rate of 2.10% per annum; (g) from 4 May 2022 to 7 June 2022 at the rate of 2.35% per annum; (h) from 8 June 2022 to 5 July 2022 at the rate of 2.85% per annum; (i) from 6 July 2022 to 2 August 2022 at the rate of 3.35% per annum; (j) from 3 August 2022 to 6 September 2022 at the rate of 3.85% per annum; (k) from 7 September 2022 to 4 October 2022 at the rate of 4.35% per annum; (l) from 5 October…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Powell v McClenahan & Ors [2024] NSWPIC 139
Case: [2024] NSWPIC 139
Decision Date: 21 March 2024

CaseChat Overview and Summary

Powell v McClenahan & Ors concerned a claim for a lump sum death benefit and interest on that lump sum, which arose from the death of an employee. The deceased's estate sought compensation from several defendants who accepted liability for the claim. The matter had a complex history, with previous applications being discontinued, leading to the current proceedings in the court.

The central legal issue the court had to address was the determination of the appropriate rate and period for the award of interest on the lump sum death benefit. While the parties agreed on the apportionment of the lump sum, they could not agree on the resolution of the claim for interest. The court was required to consider relevant precedents to resolve this dispute.

In delivering its judgment, the court meticulously reviewed several Australian cases concerning the award of interest in workers compensation claims. These included Haidary v Wandella Pet Foods Pty Limited, Dynamix Pty Ltd and Burrangong Pet Foods Pty Ltd, Kaur v Thales Underwater Systems Pty Ltd, and others. The court determined that interest should be awarded to the applicant and the respondents from the date when their respective claims were duly made until the date when orders for payment of the lump sum were made. The interest was to be calculated at a rate that is 2% above the applicable Reserve Bank of Australia cash rate.

The final orders included the award of interest to the applicant, second respondent, third respondent, and fourth respondent from the specified dates at the determined interest rate. This decision provided clarity on the interest aspect of the compensation claim, resolving the outstanding dispute between the parties.

Orders