Schembri Civil Pty Ltd v Schembri

[2023] NSWPIC 569

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Schembri Civil Pty Ltd v Schembri & Ors [2023] NSWPIC 569

APPLICANT:

Schembri Civil Pty Ltd

FIRST RESPONDENT:

Jade Schembri

SECOND RESPONDENT:

Savannah Schembri

THIRD RESPONDENT:

Jaxson Schembri

FOURTH RESPONDENT:

Rafael Schembri

SENIOR MEMBER:

Elizabeth Beilby

DATE OF DECISION:

25 October 2023

CATCHWORDS:

WORKERS COMPENSATION - Workers Compensation Act 1987; claim in respect of lump sum death benefits; worker died whilst performing work on his truck at his residence; there was no dispute that the deceased died as a result of an injury arising out of or in the course of employment with the applicant who conceded liability to pay the lump sum benefit pursuant to section 25(1)(a); parties were able to agree on a proposed apportionment of the lump sum benefit; Held – proposed apportionment was appropriate after considering the circumstances of dependency of each party; orders made in relation to funds management expenses for management of the relevant lump sums by the NSW Trustee and Guardian pursuant to section 25(1A); interest as agreed.

DETERMINATIONS MADE:

The Commission determines:

1.     The deceased worker, Keith Schembri, died on 14 October 2022, as a result of an injury arising out of or in the course of his employment with the applicant.

2.     The first, second, third and fourth respondents were all either wholly or partially dependent on the worker for support at the date of his death.

3.     There were no other persons dependent, or who claims dependency, on the worker for support at the date of his death.

4.     The applicant is liable for payment of the lump sum death benefit pursuant to s 25 (1) (a) of the Workers Compensation Act 1987 in the amount of $871,200.

5.     The lump sum death benefit payable pursuant to s 25 (1) (a) of the Workers Compensation Act 1987 is to be apportioned as follows:

(a)    first respondent $479,160;

(b)    second respondent: $130,680;

(c)    third respondent: $130,680, and

(d)    fourth respondent: $130,680.

6.     The applicant is to pay interest on the lump sum benefit as follows:

(a)    first respondent: $2,562.52;

(b)    second respondent: $698.87;

(c)    third respondent: $349,43, and

(d)    fourth respondent: $240.24.

7. The sum payable to the NSW Trustee and Guardian on behalf of the minor respondents for funds management fees pursuant to s 25(1A) of the Workers Compensation Act 1987 is as follows:

(a)    second respondent: $29,792.61;

(b)    third respondent: $34,610, and

(c)    fourth respondent: $44,643.10.

8.     The applicant is directed to pay these fees to the NSW Trustee and Guardian.

9. Pursuant to s 85A (1) of the Workers Compensation Act 1987 the lump sum benefit is to be paid directly to the first respondent.

10.   I direct that the entitlements of the second, third and fourth respondents are to be paid to the NSW Trustee and Guardian (until the age of 18).

STATEMENT OF REASONS

BACKGROUND

1. On 14 October 2022 Mr Keith Schembri (the deceased) died whilst performing work on truck at his residence.

2. Mr Schembri was married to the first respondent and they shared three children together (the second to fourth respondents). There is no doubt that Mr Schembri had a close and loving relationship with each of his dependant children.

3. Schembri Civil Pty Ltd (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).

4. The only substantive issues for determination at the preliminary conference in this matter were the questions of dependency, apportionment of the death benefit and interest.

ISSUES FOR DETERMINATION

1. The parties agree that the following issues remain in dispute:

   (a)    dependency at the time of death;

   (b)    apportionment of the lump sum death benefit, and

   (c)    interest.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. The claim was listed in the Personal Injury Commission (Commission) for preliminary conference on 20 October 2023. 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;

   (b)    Replies to the Application to Resolve a Dispute, and

   (c)    late documents dated 19 September 2023.

Dependency

1. A dependent is defined in s 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 first respondent was married to the deceased at the time of his death, though they had separated in March 2022. They maintained what appears to be a good parental relationship and there was some hope of a marital reconciliation. The first respondent’s evidence outlines the support the deceased gave to her which included financial dependency together with household and domestic assistance.

4. The second respondent is the daughter of the deceased (being born in 2005) and is currently in Year 3. There is no evidence of her having any developmental challenges, indeed her school reports have been provided which illustrate sound achievement with commitment to learning. She resides in the family home.  

5. The third respondent is the son of the deceased (being born in 2017). He is in Year 1 and also seems to be progressing through his schooling without any specific difficulties. He also lives in the family home.

6. The fourth respondent is the son of the deceased (being born in 2021) and lives in the family home. He has faced some challenges with developmental issues including social interaction and speech.

7. A report from Associate Professor Riffat was provided which was prepared after an examination of the fourth respondent in relation to prognosis following a grommet middle ear ventilation drainage procedure. Associate Professor Riffat opined that there is unlikely to be any long-term impact on education or learning now that there had been appropriate treatment.

8. I find that all respondents were either partially or totally dependent upon the deceased as at the date of death and they would have expected continued support financially but for his death.

9. I therefore make orders as sought by the parties in relation to the proposed apportionment The apportionment recognises the filed evidence which illustrates the dependency each party had on the deceased and their respective ages.

10. I understand that the apportionment is either equal with respect to the children of the deceased. Whilst it could be arguable that the younger the dependant the greater entitlement, in this case, the first respondent continues to provide accommodation and support for her three children. There is also an argument in favour of parity amongst the children of the deceased.

Interest

1. A claim was made for interest on the lump sum benefit.

2. The parties were able to agree on the entitlement to interest and this is reflected in the orders.

Orders

1. The deceased worker, Keith Schembri, died on 14 October 2022, as a result of an injury arising out of or in the course of his employment with the applicant.

2. The first, second, third and fourth respondents were all either wholly or partially dependent on the worker for support at the date of his death.

3. There were no other persons dependent, or who claims dependency, on the worker for support at the date of his death.

4. The applicant is liable for payment of the lump sum death benefit pursuant to s 25 (1) (a) of the 1987 Act in the amount of $871,200.

5. The lump sum death benefit payable pursuant to s 25 (1) (a) of the 1987 Act is to be apportioned as follows:

   (a)    first respondent $479,160;

   (b)    second respondent: $130,680;

   (c)    third respondent: $130,680, and

   (d)    fourth respondent: $130,680.

25.The applicant is to pay interest on the lump sum benefit as follows:

(a)    first respondent: $2,562.52;

(b)    second respondent: $698.87;

(c)    third respondent: $349,43, and

(d)    fourth respondent: $240.24.

1. The sum payable to the NSW Trustee and Guardian on behalf of the minor respondents for funds management fees pursuant to s 25(1A) of the 1987 Act is as follows:

   (a)    second respondent: $29,792.61;

   (b)    third respondent: $34,610, and

   (c)    fourth respondent: $44,643.10.

2. The applicant is directed to pay these fees to the NSW Trustee and Guardian.

3. Pursuant to s 85A (1) of the 1987 Act the first respondent’s entitlements are to be paid directly to her.

4. I direct that the entitlements of the second, third and fourth respondents are to be paid to the NSW Trustee and Guardian (until the age of 18).