Prysmian Australia Pty Limited v Fan

[2022] NSWPIC 406

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Prysmian Australia Pty Limited v Fan [2022] NSWPIC 406

APPLICANT:

Prysmian Australia Pty Limited

RESPONDENT:

Xiaomu Fan

MEMBER:

Elizabeth Beilby

DATE OF DECISION:

22 July 2022

CATCHWORDS:

WORKERS COMPENSATION - Lump sum death benefit; No other persons identified as dependant except the respondent. 

DETERMINATIONS MADE:

The Commission determines:

1.     I find that the respondent was dependent for support upon the deceased, Qi Zhao, at the date of his death.

2.     There was no other person who was 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 $849,300.

4. The lump sum of $849,300 is to be paid directly to the respondent pursuant to s 85A of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

1. Mr Qi Zhao (the deceased) died on 2 December 2021. The employer (the applicant) has admitted liability in respect of the death and is liable to pay compensation pursuant to s 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 any apportionment of the death benefit

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 22 July 2022. 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, and

   (b)    Reply to the Application to Resolve a Dispute.

Dependency

1. A dependent is defined in section 4 of the Workplace Injury Management and Workers Compensation Act 1998 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. I will now briefly outline the relationship those parties had with the deceased.

4. Xiamomu Fan, was the wife of the deceased. She has provided a statement dated 26 May 2022. The statement clearly outlines the circumstances of her dependency as that date of death. 

5. One child was born from the marriage in 1992, namely Jiuzhou Zhao ( Mike). Mr Zhao has provided a statement dated 26 May 2022 and doesn’t wish to be classed as either totally or partially dependent upon the deceased.

6. There is no evidence before me of any other person who was partially or fully dependent upon the deceased and wishes to make a relevant claim.

7. The lump sum benefit should therefore be paid directly to the respondent.