Rogers v State of New South Wales (Northern NSW Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Rogers v State of New South Wales (Northern NSW Local Health District) & Ors [2023] NSWPIC 398
APPLICANT:	Amanda Jane Rogers
RESPONDENT: second RESPONDENT: third RESPONDENT: fourth RESPONDENT:	State of New South Wales (Northern NSW Local Health District) Maxie Shaw Vanessa Rogers Ianna Rogers
Member:	Rachel Homan
DATE OF DECISION:	9 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Application for lump sum death benefit and funeral expenses; liability to pay compensation determined by the Commission in the applicant’s favour; orders with respect to dependants; Held – apportionment of the lump sum, interest, and funeral expenses.
determinations made:	The Commission determines: 1. Amanda Jane Rogers and Maxie Shaw were dependants of the deceased worker who were partly dependent for support upon the deceased worker at the date of his death. 2. There were no other persons wholly or partly dependent for support upon the deceased worker at the date of death. 3. The lump sum death benefit payable in accordance with s 25(1)(a) of the Workers Compensation Act 1987 is $791,850. 4. The lump sum death benefit is apportioned pursuant to s 29(1) of the Workers Compensation Act 1987 as follows: a. $613,683.75 (77.5%) to Amanda Jane Rogers, and b. $178,166.25 (22.5%) to Maxie Shaw. The Commission orders: 1. The first respondent to pay $613,683.75 to Amanda Jane Rogers pursuant to ss 25(1)(a) and 85A(1)(a) of the Workers Compensation Act 1987. 2. The first respondent to pay $178,166.25 to Maxie Shaw pursuant to ss 25(1)(a) and 85A(1)(a) of the Workers Compensation Act 1987. 3. Pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998, the first respondent to pay the applicant interest on her portion of the lump sum death benefit as follows: (a) from 29 October 2021 to 3 May 2022 at the rate of 2.1% per annum; (b) from 4 May 2022 to 7 June 2022 at the rate of 2.35% per annum; (c) from 8 June 2022 to 5 July 2022 at the rate of 2.85% per annum; (d) from 6 July 2022 to 2 August 2022 at the rate of 3.35% per annum; (e) from 3 August 2022 to 6 September 2022 at the rate of 3.85% per annum; (f) from 7 September 2022 to 4 October 2022 at the rate of 4.35% per annum; (g) from 5 October 2022 to 1 November 2022 at the rate of 4.6% per annum; (h) from 2 November 2022 to 6 December 2022 at the rate of 4.85% per annum; (i) from 7 December 2022 to 7 February 2023 at the rate of 5.10% per annum; (j) from 8 February 2023 to 7 March 2023 at the rate of 5.35% per annum; (k) from 8 March 2023 to 2 May 2023 at the rate of 5.6% per annum; (l) from 3 May 2023 to 6 June 2023 at the rate of 5.85% per annum, and (m) from 7 June 2023 to the date of this Certificate of Determination at the rate of 6.1% per annum. 4. Pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998, the first respondent to pay the second respondent interest on her portion of the lump sum death benefit as follows: (a) from 4 April 2023 to 2 May 2023 at the rate of 5.6% per annum; (b) from 3 May 2023 to 6 June 2023 at the rate of 5.85% per annum, and (c) from 7 June 2023 to the date of this Certificate of Determination at the rate of 6.1% per annum. 5. Pursuant to s 26 of the Workers Compensation Act 1987, the first respondent to pay compensation equal to reasonable funeral expenses not exceeding $15,000, upon production of accounts and/or receipts.

STATEMENT OF REASONS

BACKGROUND

Gregory Peter Shaw (the deceased worker) died on 21 August 2018. Prior to his death, Mr Shaw had been employed as a registered nurse by the State of New South Wales (Northern NSW Local Health District) (the first respondent).
On 28 September 2020, solicitors acting for Amanda Jane Rogers (the applicant) made a claim for payment of the lump sum death benefit pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act). The applicant was Mr Shaw’s de facto partner.
Liability to pay compensation in respect of the death was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 26 November 2020.
The applicant sought internal review and, on 1 March 2022, the applicant was notified that the decision to dispute liability was maintained.
The present proceedings were commenced by an Application in Respect of Death of
Worker (the Application), lodged in the Personal Injury Commission (the Commission) on 3 November 2022. The applicant sought orders for payment of the lump sum death benefit and funeral expenses.
In a Certificate of Determination dated 6 July 2023, the Commission determined that:
(a)    Mr Shaw sustained a psychological injury to which employment with the first respondent was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act;
(b)    the first respondent had failed to discharge its onus in establishing that the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to discipline pursuant to s 11A(1) of the 1987 Act;
(c) Mr Shaw died on 21 August 2018 as a result of the injury for the purposes of ss 25(1) and 26 of the 1987 Act, and
(d)    the death was not caused by an intentional self-inflicted injury for the purposes of s 14(3) of the 1987 Act.
Having determined the liability disputes, the parties were directed to serve and lodge written submissions addressing the outstanding matters in issue in accordance with a timetable. The parties were advised of the Commission’s intention to determine the outstanding matters on the papers at the conclusion of that timetable.

ISSUES FOR DETERMINATION

The following outstanding matters require determination by the Commission:
(a)    the identification of any dependants who were wholly or partly dependent for support on Mr Shaw;
(b)    apportionment of the lump sum death benefit;
(c) discretionary interest pursuant to s 109 of the 1998 Act;
(d)    liability to pay funeral expenses, and
(e)    the payment of compensation pursuant to s 85A of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Amended Application in Respect of Death of Worker and attached documents;
(b)    Reply lodged by the first respondent;
(c)    Reply lodged by Maxie Shaw (the second respondent);
(d)    Reply lodged by Vanessa Rogers (the third respondent);
(e)    Reply lodged by Ianna Rogers (the fourth respondent);
(f)    documents attached to an Application to Admit Late Documents lodged by the applicant on 15 March 2023;
(g)    documents attached to an Application to Admit Late Documents lodged by the second respondent on 4 April 2023;
(h)    chronology prepared by applicant dated 25 May 2023;
(i)    chronology prepared by the first respondent dated 25 May 2023;
(j)    written submissions by the first respondent lodged on 9 June 2023;
(k)    written submissions by the second respondent lodged on 22 June 2023;
(l)    written submissions by the applicant lodged on 23 June 2023;
(m)     written submissions by the first respondent lodged on 13 July 2023, and
(n)    written submissions by the applicant on 3 August 2023.

Dependants

The term, ‘dependants’ is defined in s 4 of the 1998 Act as:
“dependants of a worker means such of 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, and includes—
(a) a person so dependent to whom the worker stands in the place of a parent or a person so dependent who stands in the place of a parent to the worker, and
(b) a divorced spouse of the worker so dependent, and
(c) a person so dependent who—
(i) in relation to an injury received before the commencement of Schedule 7 to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998—although not legally married to the worker, lived with the worker as the worker’s husband or wife on a permanent and genuine domestic basis, or
(ii) in relation to an injury received after that commencement—is the de facto partner of the worker.
Note—
‘De facto partner’ is defined in section 21C of the Interpretation Act 1987.”
The expression “member of a family” is defined in s 4 of the 1998 Act to mean:
“member of a family means spouse (including wife or husband), father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother or half-sister.”
The only parties to the proceedings claiming to have been dependants of Mr Shaw are the applicant and the second respondent.
The NSW Death Certificate attached to the application identified the applicant as Mr Shaw’s de facto partner. The second respondent was identified as Mr Shaw’s child, aged 23 years at the time of his death.
Statement evidence from the applicant indicates that she commenced a relationship with Mr Shaw in May 2006 when she was 48-years-old, and commenced residing with him at a flat in Lismore in 2007. The applicant lived apart from Mr Shaw for several years while her children completed their education. Mr Shaw stayed with the applicant during this period, when he was not working. At the time of his death, the applicant was again residing with Mr Shaw at the flat in Lismore.
The evidence before me indicates that Mr Shaw had two other children, Angus and Belle, both of whom are now deceased. Mr Shaw’s father, Bernard Walter Shaw and his mother, Valda Shaw, are also both deceased. Mr Shaw was previously married to Narelle Lea Kelly until their divorce on 12 September 2009.
I am satisfied on the uncontradicted evidence before me that the applicant was Mr Shaw’s de facto partner within the meaning in s 21C of the Interpretation Act 1987. I am also satisfied that the second respondent was Mr Shaw’s natural child.
It is necessary to determine whether the applicant and second respondent were wholly or in part dependent for support on the deceased worker at the time of his death.
In TNT Group 4 Pty Limited v Halioris (1987) 3 NSWCCR 10; 8 NSWLR 486, McHugh JA stated (at [489]):
“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.”
In Richardson v Turfco Australia Pty Ltd [2016] NSWWCCPD 43 (Richardson), Keating P identified a number of general statements of principle for determining dependency at [65]:
“(a)    dependency is not limited to the class of persons actually in receipt of financial assistance (Sadiq);
(b)     dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased (Amaca Pty Ltd v Novek [2009] NSWCA 50);
(c)     although dependency is not limited to financial dependency, it does involve one person being beholden to another for some material or physical help or succour, emotional dependency is not enough (Skinner);
(d)     ‘dependent’ in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed (Petrohilos);
(e)     a mother’s services to a young child may satisfy the test of dependency. To suggest that, in a money sense they are valueless, is simply wrong (Petrohilos);
(f)      while one of the commonest forms of dependence might be financial dependence, the word used in the statute (which I infer is the Conveyancing Act 1919) is not limited to financial dependence (Williams), and
(g)     the word ‘partly’ in the phrase ‘partly dependent’, whilst a word of ‘some elasticity’, does not mean ‘substantially’, but means ‘more than minimally’, or perhaps, ‘significantly’ (Bremner v Graham [2016] NSWSC 633 at [34] citing Priestley JA at [4] (with whom Hope AJA agreed) in McKenzie v Baddeley [1991] NSWCA 197) (McKenzie)). Meagher JA, in McKenzie at [6], commented that ‘[c]ommon sense requires that certain trivial activities should be disregarded’.”
The evidence from the applicant indicated that she had been in receipt of a disability pension since 1997. The applicant said she was dependent financially, physically and emotionally upon Mr Shaw. Mr Shaw paid the rent on the flat in which they resided, the electricity and most of their living expenses. Mr Shaw also paid for the applicant’s dental care, and for most of their entertainment expenses.
The applicant gave evidence that Mr Shaw supported the second respondent while she was living at her mother's house in Mullumbimby. That house had been owned by Mr Shaw and his former wife Narelle jointly but was signed over to Narelle when they divorced.
The second respondent has given evidence in a statement dated 4 April 2023 that she was aware that the applicant was Mr Shaw’s de facto partner. The second respondent said she was not aware of any other dependants of her father.
The second respondent gave evidence that Mr Shaw paid formal maintenance for her and her sister Belle until they turned 18 years old. After leaving home, the second respondent remained financially dependent on Mr Shaw while studying in Melbourne. Mr Shaw continued to provide her with financial support on a regular basis through cash payments used to fund the second respondent’s living expenses including groceries, car registration, insurance and repairs. Redacted bank statements were attached to the second respondent’s statement showing deposits made into the second respondent’s account by Mr Shaw.
I am satisfied on the uncontradicted evidence before me that the applicant and second respondent were each partly dependent for support on Mr Shaw at the date of his death.
The third and fourth respondents to the proceedings are the children of the applicant from a previous relationship. They have advised the Commission through their legal representative that they do not wish to claim a portion of the lump sum.
An affidavit has been prepared by the applicant’s solicitor on 15 March 2023 regarding her communications with other potential dependants, all of whome confirmed that they did not wish to pursue a dependency claim.
I am satisfied that appropriate enquiries have been made and there is no evidence of any other family member who may have been dependent on the deceased worker at the time 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.”
Written submissions addressing the issue of apportionment have been lodged on behalf of the applicant and the second respondent. The applicant and second respondent have agreed that 77.5% of the lump sum death benefit should be apportioned to the applicant and 22.5% to the second respondent. Having regard to the evidence before the Commission, I am satisfied that the proposed apportionment is appropriate.

Interest

Section 109 of the 1998 Act provides:
“109 Interest before order for payment (cf former s 113)
(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) authorise 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.”
In Kaur v Thales Underwater Systems Pty Ltd[1] (Kaur), President Keating J stated at [139]:
“Section 109(2)(b) of the 1998 Act prohibits interest on any award of compensation payable under the Act for any period before a claim for the compensation was duly made. I accept the submission that the claim for compensation on behalf of the appellants was not duly made until the day of the arbitration. I therefore accept Thales’s submission that, as at the arbitration, the appellants could not be entitled to interest pursuant to s 109 of the 1998 Act.”
[1] [2011] NSWWCCPD 6 at [139].
In Brambles Australia Ltd t/as Gardner Perrott Industrial Services v Hamilton & Monier Ltd[2] Harrington ADP at [43] stated that an exercise of the discretion to order interest would depend on the evidence before the Commission, and relevant evidence may include reasons for a delay in the determination of the claim.
[2] [2006] NSWWCCPD 169.
In Pheeney v Doolan (No. 2)[3] the Court of Appeal said of the interest provision:
“It provides an ancillary power akin to an order for costs, and its purpose is to aid the court to do more complete justice between the parties that is otherwise possible … It is not designed to compensate a plaintiff for loss arising out of the cause of action, but to provide compensation where it is otherwise appropriate to do so for the circumstance that a sum of money has been outstanding to him for a period of time.”
[3] [1977] 1 NSWLR 601.

Applicant’s submissions

The applicant has lodged written submissions in which she submitted that the jurisdiction to award interest is discretionary, but the appropriate benchmark is the Supreme Court interest rate: Haidary v Wandella Pet Foods Pty Ltd [2005] NSWCCPD9.
The Supreme Court Practice Note Gen 16 provided for a pre-judgment interest rate of 4% above the Reserve Bank of Australia’s published cash rate. Recent Commission determinations had settled on the rate of 2% above the published cash rate.
The applicant submitted that the Commission ought to follow the Supreme Court’s practice.
The applicant noted that s 109 prohibits the ordering of interest before a claim was “duly made”. There is no statutory definition of “duly made” but the applicant agreed that a claim had been duly made by her on 29 October 2021 when the report of Dr Glenn Smith was served on the insurer.

First respondent’s submissions

The first respondent also submitted that interest was only payable once the claim was duly made. In the case of the applicant, that was on 29 October 2021, when the report of Dr Glenn Smith was served. In the case of the second respondent, that was on 4 April 2023, when she served her statement of evidence confirming dependency.
The first respondent submitted that interest should be payable from those dates to the date of the Certificate of Determination on so much of the lump sum as has been awarded to each at a rate 2% above the Reserve Bank cash rate from time to time.

Second respondent’s submissions

The second respondent submitted that the insurer had the benefit of the funds that ought to have otherwise been paid to the dependants. It was submitted that interest should be awarded, payable at 2% above Reserve Bank cash rate, apportioned in the same proportions as the lump sum, from the date of Mr Shaw’s death.

Consideration

The discretion to award interest is subject to the limitations set out in ss 109(2) and (3). Relevantly, sub-s (2)(b) provides that interest cannot be ordered on any compensation payable for any period before a claim for the compensation was “duly made”.
Section 260 of the 1998 Act provides that a claim for compensation must be made in accordance with the Workers Compensation Guidelines (the Guidelines). In respect of claims for payments in the event of death, the Guidelines note, amongst other things, that in order to pay compensation an insurer must determine whether there are any dependants who are eligible for the lump sum death benefit and how the benefit should be apportioned. Anyone who believes they are dependent must supply enough information for the insurer to determine if they meet the legal definition of a dependant.
In this case, I accept that the applicant’s claim to the death benefit was fully particularised on 29 October 2021, when the report of Dr Glenn Smith was served. The applicant had also provided a statement, dated 15 July 2021, providing particulars of her dependence upon Mr Shaw and identifying other potential dependants.
I find that a claim was duly made in respect of the second respondent on 4 April 2023, when particulars of her dependence upon Mr Shaw were provided in her statement of the same date.
I am satisfied that it is appropriate in this case to exercise my discretion to award interest from those dates.
Section 109(1) provides that the Commission may order interest at such a rate as it thinks fit. I have taken into account the submissions as to the appropriate rate. The approach of the Commission has been to award interest at a rate consistent with recent rates of interest. In a number of recent decisions at the arbitral level a rate of interest 2% above the Reserve Bank of Australia cash rate has been found to be appropriate.[4]
[4] This is consistent with the approach taken in several recent matters, including Zona Coatings; Cassegrain Tea Tree Oil Pty Ltd v BBS & Ors [2022] NSWPIC 590; and BFG v Polyfoam (Sydney) Pty Ltd & Ors [2022] NSWPIC 724.
In McGrath v P.M. Electric Pty Limited [2023] NSWPICPD 3, Parker ADP, found the legislature intended the decision maker to have a very wide discretion as to the correct rate of interestfor the purpose of s 109. The member in that case had adopted the Reserve Bank cash rate plus an additional amount of 2% reflecting what the appellant would likely have earned had the funds been paid to her earlier. This determination was found to accord with other decisions in the Commission and achieve a measure of consistency in relation to awarding interest more broadly. Acting Deputy President Parker said:
“...in my view the outcome reached by the Member is neither unjust nor unreasonable so as to bespeak error otherwise undetectable. As at 6 March 2020, the cash rate was notoriously at 0.1%. I am not persuaded that an allowance of 2% in addition to the cash rate as at the date of the determination is wrong or unfair to the appellant.”
I am satisfied in these circumstances that the approach advocated by the first and second respondent is appropriate.
I determine that interest is to be paid on the portion of the lump sum death benefit payable to the applicant from 29 October 2021 to the date of this Certificate of Determination at the following rates:
(a)    from 29 October 2021 to 3 May 2022 at the rate of 2.1% per annum;
(b)    from 4 May 2022 to 7 June 2022 at the rate of 2.35% per annum;
(c)    from 8 June 2022 to 5 July 2022 at the rate of 2.85% per annum;
(d)    from 6 July 2022 to 2 August 2022 at the rate of 3.35% per annum;
(e)    from 3 August 2022 to 6 September 2022 at the rate of 3.85% per annum;
(f)    from 7 September 2022 to 4 October 2022 at the rate of 4.35% per annum;
(g)    from 5 October 2022 to 1 November 2022 at the rate of 4.6% per annum;
(h)    from 2 November 2022 to 6 December 2022 at the rate of 4.85% per annum;
(i)    from 7 December 2022 to 7 February 2023 at the rate of 5.10% per annum;
(j)    from 8 February 2023 to 7 March 2023 at the rate of 5.35% per annum;
(k)    from 8 March 2023 to 2 May 2023 at the rate of 5.6% per annum;
(l)    from 3 May 2023 to 6 June 2023 at the rate of 5.85% per annum, and
(m)     from 7 June 2023 to the date of this Certificate of Determination at the rate of 6.1% per annum.
I determine that interest is to be paid on the portion of the lump sum death benefit payable to the second respondent as follows:
(a)     from 4 April 2023 to 2 May 2023 at the rate of 5.6% per annum;
(b)    from 3 May 2023 to 6 June 2023 at the rate of 5.85% per annum, and
(c)    from 7 June 2023 to the date of this Certificate of Determination at the rate of 6.1% per annum.

Funeral expenses

Section 26 of the 1987 Act provides;
“If compensation is payable under this Division for a death resulting from an injury, the employer must pay additional compensation equal to reasonable funeral expenses not exceeding $15,000 or such other amount as may be prescribed by the regulations.”
The parties agree and I accept that it is appropriate for a general order to be made pursuant to s 26 of the 1987 Act for the reimbursement of reasonable funeral expenses.

Payment

In all the circumstances, I accept that it is appropriate to authorise payment of the compensation to which the applicant and second respondent are entitled to them directly pursuant to s 85A(1)(a) of the 1987 Act.

[2023] NSWPIC 398

9 August 2023