Richards v Macarthur Electrical Connection Services Pty Ltd

[2021] NSWPIC 524

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Richards v Macarthur Electrical Connection Services Pty Ltd [2021] NSWPIC 524

APPLICANT:

Kylie-Anne Richards

FIRST RESPONDENT:

Macarthur Electrical Connection Services Pty Ltd

SECOND RESPONDENT:

Jye Daniel Richards

THIRD RESPONDENT:

Toby Arron Richards

MEMBER:

Paul Sweeney

DATE OF DECISION:

16 December 2021

CATCHWORDS:

WORKERS COMPENSATION - Death claim where primary liability accepted by employer; apportionment between widow and children of the deceased; consideration of whether sons of the deceased who were electrical apprentices fell within the definition of student in section 25 (5) of the Workers Compensation Act 1987 so as to be entitled to a weekly payment; Held - that they were not receiving a full-time education at a school, college or university at the relevant time; award of interest pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998 at the rate of 2.5% from the date of claim.

DETERMINATIONS MADE:

1.    Daniel Richards (the deceased) died of injury arising out of and in the course of his employment on 1 November 2018.

2.    At the date of his death his wife Kylie-Anne Richards and sons Jye Daniel Richards and Toby Arron Richards were dependent on him for support.

3.    The evidence establishes that there was no other person dependent upon the deceased for support at the date of his death.

4. At the date of death of the deceased the compensation payable in respect of the death of a worker pursuant to s 25 (1) (a) of the Workers Compensation Act 1987 (1987 Act) was the sum of $798,100.

5.    Pursuant to s 29 of the 1987 Act  apportion the lump sum as to 80% to Kylie-Anne Richards and 10% to each of the sons of the deceased, Jye Daniel Richards and Toby Arron Richards.

6. Determine that the second and third respondents were not students within the definition of that word contained in s 25(5) of the 1987 Act.

7.    Pursuant to s 26 of the 1987 Act the applicant is entitled to reimbursement of the deceased’s funeral expenses in the sum of $14,000 paid by her on  14 October 2021.

8.    Order the first respondent to pay the applicant lump sum compensation of $638,480 and reimbursement of funeral expenses of $14,300.

9.    Order the first respondent to pay the sum  of $79,810 to the second respondent.

10.  Order the first respondent to pay the sum of $79,810 to the third respondent.

11. Order the first respondent to pay interest pursuant to s109 of the Work Place Injury Management and Workers Compensation Act 1998 at the rate of 2.5% on the lump sum compensation from 7 January 2020 and on the funeral expenses from 15 October 2021 to date of payment of the compensation.

12.  Liberty to apply in respect of the mathematics in the above orders.

STATEMENT OF REASONS

BACKGROUND

1. Daniel Richards (the deceased) died as a result of a myocardial infarction on 1 November 2018. At the time of  death, his wife (the applicant), who was aged 43 years, and his sons (the second and third respondents), who were respectively aged 19 years and 17 years, were dependent upon him for support. It can readily be inferred from the evidence that there was no other person dependent on the deceased for support.

2. Macarthur Electrical Connection Services Pty Ltd (the respondent), a company operated by the Richards family, employed the deceased as an electrician during his lifetime. It initially denied that his death arose out of or in the course of his employment. However, prior to an arbitration hearing on 14 October 2021, the respondent accepted liability for the deceased’s death.

3. The admission of liability left three issues to be agreed by the parties or determined by the Commission. They were:

   (a) the apportionment of the death benefit provided by s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act) between the dependants of the deceased;

   (b) whether the second and third respondents, the sons of the deceased, were entitled to a weekly payment of compensation pursuant to s 25(1)(b) of the 1987 Act on the basis that each was “a student over the age of 16 years but under the age of 21 years”;

   (c) whether interest should be awarded pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on the compensation payable as a result of the death of the deceased.

4. As the parties informed the Commission that they were unable to deal with these issues at the conciliation and arbitration hearing listed for 14 October 2021, I vacated that date and stood the matter over for conciliation and arbitration on 11 November 2021.

PROCEDURE BEFORE THE COMMISSION

1. When the matter came on for conciliation and arbitration on 11 November 2021, Mr Dodd, of counsel, appeared for the applicant, Mr Grant, of counsel, appeared for the first respondent, Mr Parker, of counsel, for the second respondent, and Mr Brown, of counsel, for the third respondent.

2. I was informed by the parties that they had agreed on a proposal to put before the Commission for approval in relation to the apportionment of the compensation payable pursuant to s 25(1)(a) of the 1987 Act. It was proposed that the death benefit should be apportioned 80% to the applicant, the widow of the deceased, and 10% to each of the second and third respondents.

3. This apportionment properly reflected the probable dependency of the widow and her two children on the deceased should he have lived. The applicant would have remained largely dependent on the deceased for the balance of their joint lives. The second and third respondents were likely to remain dependent only until the end of their apprenticeships or shortly thereafter. I have no hesitation in making orders for apportionment on the basis proposed by the parties.

ENTITLEMENT OF THE SECOND AND THIRD RESPONDENTS TO WEEKLY COMPENSATION

1. Section 25(1)(b) provides for the payment of weekly compensation to dependent children of a deceased worker. The section is as follows:

   “in addition, an amount of $66.60 per week in respect of—

   (i)each dependent child of the worker under the age of 16 years, and

   (ii)each dependent child of the worker being a student over the age of 16 years but under the age of 21 years.”

2. Section 25(5) defines student to mean “a person receiving full-time education at a school college or university”.

3. It is common ground that the second and third respondents were dependent on the deceased at the date of death. Jye Richards was undertaking an apprenticeship with Jade Electrical which would enable him to become a licenced electrician. Toby Richards was undertaking an electrical apprenticeship with the first respondent. It is necessary to compendiously record their evidence.

JYE RICHARDS

1. By his statement dated 19 August 2021, Jye Richards says that he commenced his electrical apprenticeship at Wollongong TAFE in December 2017. He continues:

   “My apprenticeship is full-time. I was initially required to attend 4 days on site at Jade Electrical and one full day of TAFE classes.

   I finished the course load in or about December 2020, at which point I continued my apprenticeship on site at Jade Electrical for 5 days per week.”

2. He states that it remains for him to complete his final examination which is “practical in nature”. On completion of the course he will receive a Certificate III in Electrotechnology. He states that he was aged 19 years at the date of his father’s death and earned about “$500 nett per week in my apprenticeship”.

3. Jye Richards states that it was his intention to continue to reside in the family home after the completion of his apprenticeship. This enabled him to pay a mortgage on an investment property with his earnings. He anticipated that he would gain financial independence and leave home when he was “around aged 25”.

4. By a supplementary statement, Jye Richards states that he had recently passed his final examination and it was only necessary that he apply for a licence before he could perform the work of an electrician. He also elaborates on the nature of his apprenticeship. He states that he was required to undertake one day of classes at Wollongong TAFE during the first three years of his apprenticeship and the remainder of his “learning” was undertaken on site at Jade Electrical. He continues:

   “While I did receive an income for the work I was doing at Jade Electrical, this is not the same as what I could expect to receive as a fully qualified electrician, and I was paid a lower rate because of the fact I was not qualified and was studying and learning.

   While at TAFE I mainly did theory work. That would include learning formulas for power and voltage, safety procedure, the theory of wiring, how electricity works (protons, electrons and neutrons), the relevance of magnetic fields to electricity, and essentially all the theory required to become an electrician.

   We also did some practical work while at TAFE. We went to the practical rooms and were supervised by our teacher. We were given tasks to do, based upon the theory that we learned.

   We had some subjects that were completely theory based and others were practical based. This is outlined in my transcript.

   To pass the course, I was required to complete ‘e-profiling’, which outline the core and supplementary criteria I had to meet while on site at Jade Electrical. I was required to log the work I was doing on site, and indicate which core criteria and supplementary criteria that work fell into.

   We were required to meet minimum number of hours of practical work experience in order to pass. I would estimate that 80% of my subjects had an e-profiling requirement.”

5. Jye Richards says that during the first three years of his apprenticeship he would “mostly ask questions and learn how to do things”. He said that he did not know what he was doing but says that in his fourth year he was “slightly more competent” but still required supervision and support from his on-site supervisor. He states that if the deceased had lived, he would have continued to supplement the income he received through his apprenticeship including his cost of living and social outings.

TOBY RICHARDS

1. By his statement, Toby Richards says that at the time of his father’s death and presently he resides in the family home. He states he is “emotionally and financially reliant” on his mother as he was on both his parents prior to the death of the deceased.

2. Mr Richards states that he commenced his apprenticeship on 20 November 2017. He states that he attends TAFE once each week and is due to complete his Certificate III on 19 November 2021. He continues:

   “Whilst undertaking my Certificate III, I am also employed at MECS (the first respondent), as an apprenticeship electrician. I work in MECS 4 days per week, approximately 8 hours per day. I also work overtime depending on the work that needs to be completed.

   I am currently earning approximately $850 per week, however I do not make any contributions to the bills for the family home, I have been and continue to be reliant on my mother since my father’s passing.”

SUBMISSIONS

1. The second and third respondents lodged written submissions on this issue and spoke to those submissions at the arbitration hearing. Mr Grant made oral submissions on behalf of the first respondent. As the submissions are either in writing or recorded, I do not propose to reiterate each of counsel’s arguments. I hope to deal with the main thrust of these arguments in resolving the issue in dispute.

2. Mr Parker argued that the phrase “school, college, or university” in the definition of student in s 25(5) was sufficiently wide to encompass TAFE NSW. He submitted that s 25 was beneficial in nature and the interpretation of the provision “should proceed on the basis of such a background”.

3. The issue for determination was whether the second respondent fell within the words “a person receiving full-time education”. He observed that the legislature had not provided a precise definition of either “full-time” or “education”. It was open to the legislature to place specific restrictions on the number of hours that “students” were required to attend an educational institution but it had not done so. He continued:

   “Presumably this was because there ought not to be given any strict, exhaustive, definition of the words. Presumably it considered that context of the dependants’ endeavours had to be considered.”

4. In this respect he referred to the decision of Deputy President Constance in the Executor of the Estate of the Late DMLC v  Military Rehabilitation and Compensation Commission (Compensation) [2020] AATA 458 (DMLC). In that case a young woman was held to be “receiving full-time education at a … university” although she only  attended for a minimal number of hours each week because of a medical condition. Constance DP held that the determination had to be based on the “individual circumstances of the child; not on an arbitrary definition made by a particular industry body or institution”. The question was whether “the education being received is the most significant factor occupying time in the child’s activities of life”.

5. Mr Parker argued that in the case of apprenticeship, education was not just provided in the classroom but also in the workplace. This argument was developed by reference to the respective obligations of apprentices and their employers set out in the Apprenticeship and Traineeship Act 2001 (NSW) and in the Guidelines published pursuant to the Act.

6. Mr Brown argued that the definition of student required the child to be in receipt of “full-time education” as distinct from attending the school college or university full-time. A consideration of the material in evidence from Training Services New South Wales led to the conclusion that the third respondent was receiving a “full-time education”. He attended TAFE one day per week “and is otherwise educated on site for the remaining 4 days of the working week”. This conclusion was reinforced by a letter from Ms Harris of the respondent which included the following:

   “Toby is currently studying his Certificate III in Electrotechnology Electrician at Wollongong TAFE one day per week and in full-time training at work under the supervision of qualified electricians.”

7. The first respondent conceded that attendance at Wollongong TAFE would fall within the words school, college or university in the definition of student. Mr Grant submitted, however, that the second and third respondents did not fall within the statutory language. He submitted that if the legislature wished to include apprentices within the definition it would have said so explicitly. He argued that apprentices were not “receiving full-time education”. He submitted that it would be ludicrous to find that a person who was essentially in full-time employment such as an apprentice or a law student who was working full-time while pursuing his studies after hours was receiving a full-time education.

DISCUSSION AND FINDINGS

1. A number of recent cases from the Court of Appeal have cautioned against over-reliance on dictionaries in construing words or phrases in a statute. These cases are collected at [53] to [56] of the decision of the Court of Appeal in Will v. Brighton [2020] NSWCA 355 (23 December 2020). At [56] of that case, Bell P said this:

   “The famous injunction issued by Judge Learned Hand in Cabell v. Markham 148 F.2d 737 at 739 (2^nd Cir 1945) “not to make a fortress out of the dictionary” does not operate to preclude or disclaim the value of the use of dictionaries entirely, or to render such reference irrelevant to the exercise of statutory construction. It warns simply that dictionaries are not a suitable substitute for the ordinary process of statutory construction taking into account the broader context of the relevant provision:”.

2. Bearing in mind this instruction, the definition of the key words may focus attention on the issues.  The Macquarie Compact Dictionary, 8th edition defines apprentice as follows:

   “Noun.

   1.      Someone who works for another with obligations to learn a trade.

   2.      A learner; a novice.

   3.      Horseracing a trainee jockey under 21 years of age”;

   Student is defined as follows

   “Noun.

   1.      Someone who is engaged in a course of study and instruction, as at a college, university, or professional or technical school.

   2.      Someone who studies a subject systematically or in detail”

3. Mr Grant submitted that the omission of the word “apprentice” from the definition of a student in s 25 indicated a legislative intention to exclude it from the section. There is some force in that submission. The word “apprentice” is used in Sch 3 of the 1987 Act in the context of determining the pre-injury weekly earnings of “apprentices, trainees and persons aged under 21 years”. That may support his contention. It may suggest that the words student and apprentice are mutually exclusive. I doubt, however, whether it is appropriate to determine the issue on such flimsy evidence of legislative intent.

4. Historically there may have been an unbridgeable chasm between a student and an apprentice. In modern usage, however, there is no reason why apprentices attending classes at TAFE should not be described as “students”. They are  receiving vocational education while in the classroom and in performing activities incidental to it. The definition of student cited above includes attendance at a “technical school”.

5. It is also true that the section does not require full-time attendance at an institution. If it did it would only catch a minority of tertiary students as in many disciplines the actual coursework is quite meagre. However, if the relevant education is said by an institution to be full-time it would undoubtedly satisfy the definition. In other cases, there is good sense in the approach of Constance DP in DMLC that the enquiry should consider whether the education was the most significant factor occupying the time of the child’s activities of life. Of course, once a conclusion is reached that the child is not receiving  a full-time education he or she is excluded from the benefit of a weekly payment. This may involve questions of fact and degree.

6. While there is considerable force in the arguments in favour of the proposition, I have reached the conclusion that the second and third respondents have not established that they were receiving a full-time education at college at the date of the deceased death.

7. The email of the head teacher of Electrotechnology at Wollongong TAFE is instructive. Relevantly it states:

   “The attendance pattern was one day per week, 7hr. Each TAFE year is split into two semesters, each of 18 weeks duration, 36 days of on-site study.

   We typically expect students to do additional study of approximately 40% of the delivery hours to revise and practice the content delivered on-site.”

8. The above outline of the education undertaken by an electrotechnology apprentice applies equally to both the second and third respondents at the date of death of the deceased. I accept it as an accurate account of their coursework. It is evident that the TAFE course required the apprentice to spend up to 55 hours a year on course work although there may have been additional time necessary for studying and completing examinations. The balance of the year was spent in vocational training with his employer on the job.

9. I appreciate that there is a connection between the TAFE course and the work on the job but the latter is performed as part of a contract of apprenticeship between an employer and an apprentice. It does not readily fall within the phrase “education at a school, college or university.” In this case, it is evident that the education received at or in connection with a school, college, or university was overwhelmed in terms of time by work in the field. The second and third respondent’s education at a school could not in ordinary language be said to be “full-time”. Rather, they were receiving a part-time education at TAFE as part of a full time apprenticeship.

1. I also note that at the conclusion of the three years at TAFE each of the year second and third respondents may be apprentice for another year performing what was essentially work in the field for their employer. That is probably not a relevant consideration in determining whether they were engaged a full-time  education at an earlier time. But it does highlight the difference between the coursework and the vocational learning in the field.

2. It is often difficult to determine whether facts agreed or found  fall within the provision of a statutory enactment. I have found the task difficult in this case. However, I find that the second and third respondents were not receiving a full-time  education at a school college or university at or in the years following the death of the deceased.

INTEREST

1. Section 109 of the 1998 Act is as follows:

   “(1)    In any proceedings before the Commission, the Commission may order that there is to be included, in any sum to be paid, interest at such rate as the Commission thinks fit on the whole or any part of the sum for the whole or any part of the period before the sum is payable, subject to the limitations imposed by this section.

   (2)     Interest cannot be ordered under this section—

   (a) on any compensation payable under Division 4 of Part 3 of the 1987 Act, or

   (b) on any compensation payable under this Act for any period before a claim for the compensation was duly made, or

   (c) on any compensation payable under this Act for any period during which proceedings before the Commission were adjourned on the application of the claimant for the compensation or pursuant to section 102.(3)

   This section does not-

   (a)    authorize the giving of interest upon interest, or

   (b)     apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise.”

2. At the arbitration hearing, I was referred to cases in relation to interest and to the meaning of “duly made” in s 109. It was said, and I accept, that the latter term connotes a state when all of the relevant particulars required for the employer to assess the claim furnished by the workers see Kaur v Thales Underwater Systems Pty Ltd [2011] NSWWCCPD 6 (4 February 2011). The phrase has a long history in the workers compensation legislation but the previous dispensation of the phrase had a technical meaning and the case law in respect of former s 106E of the 1987 Act, which is collected in the decision of Walker J in Ford v Zinc Corporation 17 NSWCCR 497 (28 January 1999), is of little assistance.

3. In respect of interest it was accepted that an award of interest is compensatory in that the insurer (scheme agent) has been in possession of the award moneys and the dependants have been deprived of the use of those moneys since she made her claim: see Bennett v Jones (1997) 2 NSWLR 355.

4. There were widely different submissions as to when the claim was duly made. Mr Dodd submitted that it was the date on which the insurer first issued a s 78 Notice on 7 January 2020, Mr Parker in his written submissions suggested the date of lodgement of the Application to Resolve a Dispute, while Mr Grant suggested that it may be after that time. After reviewing the evidence, it seems to me that the worker had provided the employer with all of the information that was necessary for it to properly investigate and make a decision on the claim by 8 February 2020 and I accept Mr Dodd’s submission in this respect.

5. In respect of the rate of interest, the applicant and the  second and third respondents submitted that interest should be calculated on the basis of the rates prescribed by the Uniform Civil Procedure Act NSW 2005 or the Supreme Court Practice Note relevant to interest. It was submitted that:

   “Interest should be awarded at 4% above the Reserve Bank of Australia cash rate. The cash rate at the date of accident was 1.5%, since that point in time it has steadily declined to its present value of .01%. Accordingly it is submitted that a rate of 4.8% be adopted.”

6. Mr Grant referred me to several cases where arbitrators of the former Commission had ordered interest at a much lesser rate than that sought by the applicant and the second and third respondents in this case. He pointed out that interest on bank deposits was considerably less than 1% and that the prescribed rate of interest was far greater than could be obtained on investment in first mortgages or bonds. I should add that Mr Dodd had indicated in his submission that the All Ordinaries Index of the Australian Stock Exchange had increased by something in the order of 5% annually over the last several years which justified the rate of 4.8%.

7. It is true that at some risk the applicant and the second and third respondents may have obtained a return of more than bank interest or first mortgage rates on the capital sum if they had access to the money at the date the claim was duly made. It is more probable, however, in my opinion that the moneys would have been invested conservatively, at least, in the short term. The rate of 2.5% is, therefore, appropriate compensation for the dependants being kept out of the compensation moneys over the last two years.

8. That figure allows a return on the capital sum that is greater than the rate of inflation for the period and greater than was  available on a range of a balanced investments.

9. I propose to make the following findings and orders:

   (a)    Daniel Richards (the deceased) died of injury arising out of and in the course of his employment on 1 November 2018.

   (b)    At the date of his death his wife Kylie-Anne Richards and sons Jye Daniel Richards and Toby Arron Richards were dependent on him for support.

   (c)    The evidence establishes that there was no other person dependent upon the deceased for support at the date of his death.

   (d) At the date of death of the deceased the compensation payable in respect of the death of a worker pursuant to section 25 of the 1987 Act was the sum of $798,100.

   (e)    Pursuant to s 29 of the 1987 Act apportion the lump sum as to 80% to Kylie-Anne Richards and 10% to each of the sons of the deceased, Jye Daniel Richards and Toby Arron Richards.

   (f) Determine that the second and third respondents were not students within the definition of that word contained in s 25(5) of the 1987 Act at the date of death.

   (g)    Pursuant to s 26 of the 1987 Act the applicant is entitled to reimbursement of the deceased’s funeral expenses in the sum of $14,000 paid by her on them 14 October 2021.

   (h)    Order the first respondent to pay the applicant lump sum compensation of $638,480 and reimbursement of funeral expenses of $14,300.

   (i)    Order the first respondent to pay the sum  of $79,810 to the second respondent.

   (j)    Order the first respondent to pay the sum of $79,810 to the third respondent.

   (k) Order the first respondent to pay interest pursuant to section 109 of the 1998 Act at the rate of 2.5% on the lump sum compensation from 7 January 2020 and on the funeral expenses from 15 October 2021 to date of payment of the compensation.