Ron Bateman Pty Ltd v Wilson & Ors
[2023] NSWPIC 674
•14 December 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Ron Bateman Pty Ltd v Wilson & Ors [2023] NSWPIC 674 |
| APPLICANT: | Ron Bateman Pty Ltd |
| FIRST RESPONDENT: | Supin Wilson |
| SECOND RESPONDENT: | Kylie Louise Woods as tutor of Gloria Supang Wilson |
| PRINCIPAL MEMBER: | Glenn Capel |
| DATE OF DECISION: | 14 December 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Death claim; determination of dependency, apportionment, and payment of death benefit, interest and management fee; TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd, and Wratten v Kirkpatrick & Ors discussed and applied; Held – Death benefit and agreed interest apportioned and orders for payment. |
| DETERMINATIONS MADE: | The Commission determines: 1. The name of the second respondent is amended to Kylie Louise Woods as tutor of Gloria Supang Wilson. 2. The deceased worker, Dean Douglas Wilson, died on 1 April 2023 as a result of injuries sustained arising out of or in the course of his employment with the applicant. 3. Supin Wilson and Gloria Supang Wilson was wholly dependent for support upon the deceased at the date of death. 4. The deceased had no other persons dependent on him. 5. The applicant is liable for the payment of lump sum compensation, interest and the management fee. 6. The lump sum compensation of $891,100 payable pursuant to s 25(1)(a) of the Workers Compensation Act 1987 is to be apportioned in accordance with s 29 of the of the Workers Compensation Act 1987 as follows: (a) Supin Wilson – $646,047.50 (72.5%). (b) Gloria Supang Wilson – $245,052.50 (27.5%). 7. The applicant to pay interest on the lump sum of $891,100 as agreed pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 as follows: (a) Supin Wilson – $6,641.90. (b) Gloria Supang Wilson – $2,519.34. 8. The applicant to pay a management fee of $59,746.08 pursuant to s 25(1A) of the Workers Compensation Act 1987 and cl 177 of the Workers Compensation Regulation 2016. The Commission orders: 9. The applicant to pay the first respondent $652,689.40 pursuant to s 85A(1)(a) of the Workers Compensation Act 1987 and s 109 of the Workplace Injury Management and Workers Compensation Act 1998. 10. The applicant to pay $307,317.92 to the New South Wales Trustee and Guardian pursuant to ss 25(1A) and 85(1)(c) of the Workers Compensation Act1987, s 109 of the Workplace Injury Management and Workers Compensation Act 1998 and cl 177 of the Workers Compensation Regulation 2016 to hold on trust until Gloria Supang Wilson attains the age of 18 years. |
STATEMENT OF REASONS
BACKGROUND
The deceased worker, Dean Douglas Wilson, died on 1 April 2023 as a result of injuries sustained arising out of or in the course of his employment with Ron Bateman Pty Ltd (the applicant).
Liability was accepted by the insurer pursuant to ss 25 and 26 of the Workers Compensation Act1987 (the 1987 Act) on 19 July 2023, subject to a determination of potential dependants.
On 26 July 2023, the applicant’s solicitor, Mr Harris, sent an email to Supin Wilson’s (the first respondent) solicitor, seeking particulars of any dependants and documentary evidence in respect of the claim for dependency.
On 11 September 2023, the solicitor for the first respondent provided a response to the request for particulars and identified the first respondent and Kylie Louise Woods as tutor of Gloria Supang Wilson (the second respondent) as potential dependants. He also provided details of the first respondent’s daughter who lived in Thailand as well as details of the deceased’s parents and sister. It was his understanding that they would not be making a claim on the death benefit.
The first respondent’s statement was served on Mr Harris on 16 October 2023.
On 18 October 2023, Mr Harris advised that the only persons claiming dependency were the first and second respondents. He requested that statements be filed from the deceased’s family members that confirmed that they did not intend to make a claim.
The applicant filed an Application in Respect of Death of Worker (the Application) in the Personal Injury Commission (Commission) on 25 October 2023, seeking payment of the lump sum death benefit of $891,100 in accordance with s 25(1)(a) of the 1987 Act, apportionment of the benefit in accordance with s 29 of the 1987 Act and an order authorising payment of the lump sum pursuant to ss 85(1)(c) and 85A(1)(a) of the 1987 Act.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. The parties were advised of the intention to determine the dispute without holding a conciliation conference or arbitration hearing.
After the preliminary conference on 14 December 2023, I was informed that the parties had reached agreement as to a proposed apportionment as follows:
(a) Supin Wilson – $646,047.50 (72.5%).
(b) Gloria Supang Wilson – $245,052.50 (27.5%).
I was also informed that the parties had also reached agreement regarding interest.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether there were any persons wholly or partially dependent on the deceased –
s 25 of the 1987 Act;(b) apportionment of the lump sum of $891.100 payable – s 29 of the 1987 Act, and
(c) orders in relation to payment of the compensation, interest and the management fee – ss 25 (1A), 85(1)(c) and 85A(1)(a) of the 1987 Act, s 109 of the Workplace Injury Management and Workers Compensation Act 1998 ( the 1998 Act) and cl 177 of the Workers Compensation Regulation 2016 (the 2016 Regulation).
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) Application and attached documents;
(b) first respondent’s Reply with attachments;
(c) second respondent’s Reply with attachments, and
(d) Application to Admit Late Documents received on 7 December 2023.
Oral evidence
The parties did not seek leave to adduce oral evidence or cross examine any witnesses.
REVIEW OF EVIDENCE
Statement of Supin Wilson
Supin Wilson provided a statement on 11 October 2023. She advised that she had a daughter Siriwimon Tekli in May 2008. When her relationship with her partner ended, she allowed her daughter to live with her former partner’s mother in Thailand.
The first respondent indicated that she met the deceased in 2011 when he was holidaying in Bangkok. They remained in contact after he returned to home and he visited Bangkok whenever he could. She stayed with him and his parents when she visited Australia. They married in March 2017 and the second respondent was born in September 2018. She was granted Australian citizenship in November 2018.
The first respondent advised that the second respondent was diagnosed with level 3 autism in April 2020. Her daughter requires high needs support, has limited verbal skills and cognitive issues, and has an altered gait caused by a turned leg. She needs to be available to supervise and care for her daughter 24 hours per day.
The deceased provided her with financial support and helped her set up a hairdressing salon in 2015 in Thailand that she operated until she obtained a partner visa and moved to Australia in June 2022. The deceased paid $10,000 for the visa.
The first respondent stated that the deceased purchased the family home in April 2022 with the assistance of his parents. There is a substantial mortgage. Repayments will resume towards the end of 2023. She will be entitled to her husband’s superannuation entitlements and a potential insurance payout.
The first respondent indicated that she does not qualify for Centrelink, but her daughter is on a self-managed NDIS plan. After two years’ residency, she might be eligible for a carer’s allowance. The second respondent attends preschool and is enrolled for primary school in 2024.
The first respondent stated that the deceased attended to household maintenance and worked in the common area of the townhouse complex. He managed the financial affairs and paid all the household bills including internet, utilities, groceries and medical expenses. She had relied on the deceased for transport and she had recently obtained her driver’s licence. She also received assistance from her husband’s parents. She was totally dependent on her husband at the time of his death.
The fist respondent stated that she had not supported her elder daughter, but she kept in touch. She was in high school and in good health. She was not aware of her daughter’s career ambitions.
The first respondent stated that she and had told the deceased about her desire for Siriwimon to join her in Australia, but they were not in a position to fund a visit or a visa for her. The deceased had never met Siriwimon and he had not provided her with any financial or emotional support, and she would have had no expectation of any future support from the deceased. The first respondent had no plans to look for work or move back to Thailand.
Statements of David Wilson, Vicki Wilson and Kylie Woods
David and Vicki Wilson, the parents of the deceased, provided statements on 6 December 2023. Both indicated that they did not intend to make a claim of dependency.
Similarly, Kylie Woods, the deceased’s sister, confirmed that she was not going to make a claim in the death benefit.
Documents
The deceased’s marriage and death certificates and the birth certificate of the second respondent are in evidence. There are also reports that detail the second respondent’s health issues, loan documents and visa documents. These are consistent with the first respondent’s statement.
SUBMISSIONS
Brief submissions were made by counsel for the first respondent regarding his client’s dire financial situation. I had given a preliminary view at the preliminary conference and the proposed apportionment was consistent with my comments. I am satisfied that the parties have considered their respective rights.
REASONS
Dependency
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.”
Further, in Kaur v Thales Underwater Systems Pty Ltd [2011] NSWCCPD 6 (at [126] and [148]), President Keating stated (at [126]):
“126. The question whether there is in fact dependence or reliance at the date of death is not to be answered by looking only to the circumstances as they existed at that date; ‘past events and future probabilities’ have to be considered. (Aafjes v Kearney 180 CLR 199; [1976] HCA 5; 8 ALR 455; 50 ALJR 454, 456, 457 and 459 (Aafjes)).”
According to the first respondent, she and her daughter were dependent on the deceased both financially and emotionally. She did not work and was and is on call to care for the second respondent.
In the circumstances I am satisfied that the first and second respondents were wholly dependent on the deceased at the date of his death.
The evidence does not suggest that the first respondent’s daughter who currently resides in Thailand was wholly or partly dependent on the deceased at the date of his death.
Accordingly, I am satisfied that there were no other persons wholly or partly dependent on him at the date of 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,[1] Egan A-CCJ 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.”[2]
[1] (1996) 15 NSWCCR 32 (Wratten).
[2] Wratten, [34].
Each case requires an examination of the individual facts as no two matters are identical. The parties came to a preliminary agreement in relation to apportionment of the lump sum death benefit and this was confirmed by the legal preservatives after the conference.
The first respondent would have had an expectation of ongoing support from the deceased but for his death. She is a fulltime carer of her daughter and has not been in a position to seek employment. In those circumstances, her future expectations would be significant.
The second respondent would similarly have a significant expectation given the health issues that she has. She is only 5-years-old and she would have had an expectation of ongoing support until at least she turned 21 years.
Having regard to the totality of the evidence, the apportionment suggested by the parties is in my view appropriate and properly reflects their respective expectations and entitlements.
Accordingly the lump sum benefit of $891,100 will be apportioned as follows:
(a) Supin Wilson – $646,047.50 (72.5%).
(b) Gloria Supang Wilson – $245,052.50 (27.5%).
Interest
The parties have reached agreement as to quantum of interest calculated at the rates of
6.1 % per annum from 16 October 2023 to 7 November 2023 and 6.35% per annum from
8 November 2023 to 14 December 2023 as follows:(a) Supin Wilson – $6,641.90.
(b) Gloria Supang Wilson – $2,519.34.
Management Fee
Section 25(1A) of the 1987 Act provides that where a lump sum death benefit is paid to the NSW Trustee for the benefit of a dependant in accordance with s 85 of the 1987 Act, the employer must pay additional compensation fees for management of the funds by the NSW Trustee as prescribed by the regulations. Clause 177 of the 2016 Regulation contains the prescribed formula for the calculation.
The SIRA website contains a lump sum benefit additional fees calculator which simplifies the calculation. According to the calculator, and confirmed by the applicant’s solicitor, the additional fees payable by the applicant to the NSW Trustee and Guardian are $59,746.08.
I propose to make orders in accordance with the above calculations.
FINDINGS
The name of the second respondent is amended to Kylie Louise Woods as tutor of Gloria Supang Wilson.
The deceased worker, Dean Douglas Wilson, died on 1 April 2023 as a result of injuries sustained arising out of or in the course of his employment with the applicant.
Supin Wilson and Gloria Supang Wilson was wholly dependent for support upon the deceased at the date of death.
The deceased had no other persons dependent on him.
The applicant is liable for the payment of lump sum compensation, interest and the management fee.
The lump sum compensation of $891,100 payable pursuant to s 25(1)(a) of the 1987 Act is to be apportioned in accordance with s 29 of the 1987 Act as follows:
(a) Supin Wilson – $646,047.50 (72.5%).
(b) Gloria Supang Wilson – $245,052.50 (27.5%).
The applicant to pay interest on the lump sum of $891,100 as agreed pursuant to s 109 of the 1998 Act as follows:
(a) Supin Wilson – $6,641.90.
(b) Gloria Supang Wilson – $2,519.34.
The applicant to pay a management fee of $59,746.08 pursuant to s 25(1A) of the 1987 Act and cl 177 of the 2016 Regulation.
ORDERS
The applicant to pay the first respondent $652,689.40 pursuant to s 85A(1)(a) of the 1987 Act and s 109 of the 1998 Act.
The applicant to pay $307,317.92 to the New South Wales Trustee and Guardian pursuant to ss 25(1A) and 85(1)(c) of the 1987 Act, s 109 of the 1998 Act and cl 177 of the 2016 Regulation 2016 to hold on trust until Gloria Supang Wilson attains the age of 18 years.
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