Shi v Transpace Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Shi v Transpace Pty Ltd & Ors [2023] NSWPIC 469
APPLICANT:	Hong Shi
FIRST RESPONDENT:	Transpace Pty Ltd
SECOND RESPONDENT: THIRD RESPONDENT: FOURTH RESPONDENT:	Nirmala Devi Ziying Zhang Giselle Gahalian
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	13 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum death benefit and interest; liability accepted; apportionment of lump sum and claims for interest; consideration of TNT Group 4 Pty Ltd v Halioris, Wratten v Kirkpatrick, Vukicevic v Simpson, Chant v Ready Mixed Concrete Industries Ltd, Haidary v Wandella Pet Foods Pty Ltd, Kaur v Thales Underwater Systems Pty Ltd, and McGrath v P.M Electric Pty Limited; Held – applicant and fourth respondent dependent on worker; second respondent partly dependent on worker; lump sum death benefit apportioned as to 65% to applicant; 8% to second respondent; 27% to fourth respondent; interest awarded from dates claims duly made at rate 2% above relevant Reserve Bank of Australia cash rate; award for funds management in respect of amount apportioned to fourth respondent.
DETERMINATIONS MADE:	The Commission determines: 1. The first respondent is to pay to the applicant, pursuant to s 85A(1)(a) of the Workers Compensation Act 1987, the sum of $552,045. 2. The first respondent is to pay to the second respondent, pursuant to s 85A(1)(a) of the Workers Compensation Act 1987, the sum of $67,944. 3. The first respondent is to pay to the NSW Trustee and Guardian, on behalf of the fourth respondent, pursuant to s 85(1)(a) of the Workers Compensation Act 1987, the sum of $229,311, to be held on trust for her benefit until she attains the age of 18 years. 4. The first respondent is to pay, pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998, interest on the sum payable to the applicant as follows: (a) from 24 November 2022 to 6 December 2022 at the rate of 4.85% per annum; (b) from 7 December 2022 to 7 February 2023 at the rate of 5.1% per annum; (c) from 8 February 2023 to 7 March 2023 at the rate of 5.35% per annum; (d) from 8 March 2023 to 2 May 2023 at the rate of 5.6% per annum; (e) from 3 May 2023 to 6 June 2023 at the rate of 5.85% per annum, and (f) from 7 June 2023 to the date of the Certificate of Determination at the rate of 6.1% per annum. 5. The first respondent is to pay, pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998, interest on the sum payable to the second respondent from 7 June 2023 to the date of the Certificate of Determination at the rate of 6.1% per annum. 6. The first respondent is to pay to the NSW Trustee and Guardian, on behalf of the fourth respondent, pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998, interest on the lump sum payable to the fourth respondent as follows: (a) from 24 November 2022 to 6 December 2022 at the rate of 4.85% per annum; (b) from 7 December 2022 to 7 February 2023 at the rate of 5.1% per annum; (c) from 8 February 2023 to 7 March 2023 at the rate of 5.35% per annum; (d) from 8 March 2023 to 2 May 2023 at the rate of 5.6% per annum; (e) from 3 May 2023 to 6 June 2023 at the rate of 5.85% per annum, and (f) from 7 June 2023 to the date of the Certificate of Determination at the rate of 6.1% per annum. 7. The first respondent is to pay to the NSW Trustee and Guardian, pursuant to s 25(1A) of the Workers Compensation Act 1987, the sum of $ 54,133.44 as additional compensation fees for the management of the lump sum benefit and interest that is to be paid to the fourth respondent.

STATEMENT OF REASONS

BACKGROUND

This is the second determination in this matter. It should be read with my determination dated 30 June 2023, in which I discussed the evidence and the claims made by the applicant and the second, third and fourth respondents.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    apportionment of the lump sum death benefit;
(b)    interest on the lump sum death benefit, and
(c)    funds management of the amount apportioned to the fourth respondent.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I have referred to the procedure in this matter in my previous determination.
Pursuant to my order, the second respondent was granted leave to rely on Application to Admit Late Documents dated 9 June 2023 and attached documents.
Pursuant to my order, the fourth respondent lodged an Application to Admit Late Documents dated 14 July 2023 and attached documents; and submissions. No party has raised any objection to the admission of the documents, or exercised liberty to request a further preliminary conference and the documents are accordingly admitted.
The applicant lodged further submissions on 14 July 2023.
No other documents or submissions have been received. The parties were advised that, at the conclusion of the time allowed for submissions, the matter would be determined “on the papers”.
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. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application in Respect of Death of Worker (the Application) and attached documents;
(b)    Reply by first respondent and attached documents;
(c)    Reply by second respondent and attached documents;
(d)    Reply by fourth respondent and attached documents;
(e)    Application to Admit Late Documents dated 27 January 2023 and attached documents, filed by the third respondent (Reply);
(f)    Application to Admit Late Documents dated 26 April 2023 and attached documents, filed by the second respondent;
(g)    Application to Admit Late Documents dated 26 May 2023 and attached documents, filed by the applicant;
(h)    Application to Admit Late Documents dated 9 June 2023, and attached documents, filed by the second respondent, and
(i)    Application to Admit Late Documemnts dated 14 July 2023, and attached documents, filed by the fourth respondent.

FINDINGS AND REASONS

Evidence of the claimants

I have discussed the evidence that was then before me in my determination dated
30 June 2023.
The fourth respondent has lodged further evidence, to which I now refer.

Evidence of fourth respondent, Giselle Gahalian

Ms Gahalian relied on a Google map showing the distance between New Delhi, Delhi, India, and Samalkha, Haryana, India by road to be from 84km to 126.8km, depending on the route taken; and the travel time varying from 2 hours to 2 hours, 37 minutes.
The fourth respondent also relied on a timeline of COVID-19 in Australia from
31 December 2019 to 31 December 2020; and an article dated 11 March 2020 that referred to the closure of the Indian border and the extension of travel curbs as a response to COVID-19.
That evidence has been referred to in the fourth respondent’s submissions, which I discuss below.

SUBMISSIONS

The parties have provided written submissions, which I have briefly summarised.

Applicant

The applicant submitted that she was not working when the worker was killed, and her tax return disclosed that her rental property was not producing any net income.
As the regular household expenses exceeded the worker’s declared income by a large margin, it was submitted that a reasonable inference could be drawn that he was drawing funds for the expenses from the first respondent’s cash flow.
The applicant submitted that it could reasonably be inferred from her evidence of the domestic and business situation that, apart from growing the business, the worker probably had a longer term plan to endeavour to cease driving and do administrative work in Sydney. This would be easier on him, potentially more profitable, and enable him to spend more time at home with his family.
The applicant submitted there was conflicting evidence as to whether the second respondent had employment in India. She referred to her most recent statement and attached evidence. The second respondent had stated she had not recently had paid work.
The applicant submitted that, with the second respondent living in India, and the worker having a young family and developing business, his future visits would have been periodic, so the physical support he would have provided to his mother would have been very limited.
The applicant referred to the evidence that the worker transferred funds to the second respondent. She submitted that, using the current exchange rate, they amounted to a total of $22,075 over a period of nine years, or on average $47 per week. In the last two years, the average payment was $57 per week. The second respondent’s statement referred to cash payments when the worker visited, but such trips were infrequent, and the amounts were not described.
The applicant submitted that the amount of $57 per week provided a reasonable guide as to what funds would have been forwarded to the second respondent. As the worker’s accident occurred towards the end of 2021, payments made in that calendar year did not distort matters.
The applicant submitted that the only surviving family members who were dependent for support on the worker were herself, the second respondent, and the fourth respondent.
The applicant submitted that both she and the fourth respondent received financial support from the worker that could be valued at $600 per week. She was likely to continue to receive such support from the worker’s income and retirement savings for a further 38 years to age 86, noting that she was 48 when he died. That would equate to $600 per week x 1,191.2 (38 year 3% multiplier) = $714,720.
With respect to the fourth respondent, the applicant submitted that she would have continued to receive this level of direct financial support until she had completed tertiary education and secured reasonable paying employment at, say, 23 years old. As she was four when her father died, this would be for a further 19 years. That would equate to $600 per week x 758.6 (19 year 3% multiplier) = $455,160.
With respect to the second respondent, the applicant submitted that she would have continued to receive direct financial support, rounded up to $60 per week, from the worker’s income and retirement savings for a further 26 years to age 87, noting that she was 61 when her son died. That would equate to $60 per week x 946.8 (26 year 3% multiplier) = $56,808.
The applicant submitted that the value of the physical assistance that the worker would have provided to her and the fourth respondent would probably have averaged three hours per day. His interstate driving would have prevented him providing support over certain periods, but this would have been counter-balanced by additional support when he was not driving. Using the figure of three hours also appropriately factored in the likelihood that his available time would have increased over time, given his plans.
The applicant submitted that she and the fourth respondent would each have received the benefit of 1.5 hours a day until the latter turned 23 (19 years) and she would have received three hours a day until her probable death at 86 in 2059 (a period of a further 19 years). The worker would have been 75 in 2059, and his health would probably still have been good enough to provide this level of domestic support.
The applicant submitted that it is sensible to put a value of $30 per hour on the value of domestic services. She has provided her calculations, which result in $511,372 to her; and $238,959 to the fourth respondent.
The applicant submitted that it may generously be assumed that on average the worker and the second respondent would have been together for a period of three weeks each year, and that during such periods, she may have received support of 1.5 hours per day or 10.5 hours a week. The applicant has calculated this at $17,203.
The applicant has totalled the above loss of financial and physical support at $1,994,222. The claimants’ respective proportions (rounded to the nearest 0.5%) are:
(a)    applicant: 61.48%, rounded to 61.5%;
(b)    fourth respondent: 34.8%, rounded to 35%, and
(c)    second respondent 3.71%, rounded to 3.5%.
If the lump sum death benefit were apportioned in accordance with those percentages, the result is:
(a)    applicant: $522,319.50;
(b)    fourth respondent: $297,255, and
(c)    second respondent: $29,725.50.
The applicant submitted that some further adjustment would be appropriate to take into account some matters that are difficult to assess. There is evidence that the worker funded one trip to Australia and some medical procedures for the second respondent and provided some cash when he visited. She submitted a further allowance of $20,000 would be appropriate to allow for such intermittent future support.
The applicant submitted that she was obliged to devote much of her regular income and savings to mortgage payments. Her intention was to use the lump sum allocated to her to reduce or even discharge the mortgage and increase her available income. A significant proportion of such increase would be used to support or otherwise benefit Giselle. The proportion allocated to Giselle would, subject to any decision by the NSW Trustee and Guardian permitting release of some funds, not be available for her use until she turned 18 in 2035.
The applicant submitted that this situation could be sensibly alleviated by modifying the figures above as follows:
(a)    applicant: $599,300;
(b)    fourth respondent: $200,000, and
(c)    second respondent: $50,000.
The applicant submitted that funds management costs with respect to the amount apportioned to Giselle would need to be considered.
As regards the claim for interest, the applicant submitted that liability should have been admitted within a reasonably short period of, say, seven days after the first respondent received the coroner’s report dated 11 January 2022, which clearly established that the worker died as a result of the accident, rather than any antecedent condition. Liability was not admitted until 19 May 2022.
The applicant submitted that interest should be payable on the whole of the lump sum from a date seven days after the coroner’s report was received. It should be divided pro-rata between the dependents, in the same proportions as the apportionment of the lump sum.
The applicant submitted that the proportion of the lump sum apportioned to Giselle should be paid to the NSW Trustee and Guardian, pursuant to s 85(1)(a) of the 1987 Act.
The applicant made additional submissions after the second respondent was granted leave to rely on her Application to Admit Late Documents dated 9 June 2023.
The applicant referred to the second respondent’s statement dated 7 June 2023.
The applicant submitted that the extent of the second respondent’s loans from family and friends was unclear, but she was not under pressure to repay them.
The applicant submitted that the affidavit of Smt Darshan confirmed a loan to the second respondent, but there was little else in it that was of assistance, and for that reason it should be disregarded.
The applicant submitted that, to her credit, the second respondent had demonstrated a capacity to earn an, albeit small, income.
The applicant confirmed her previous submissions in relation to the apportionment of the lump sum death benefit and submitted I could more comfortably apportion the lump sum in the manner proposed, given that the second respondent’s position had been clarified.

Second respondent

The second respondent submitted that she raised the worker as a single mother on a government pension. She borrowed money to allow him to go to Australia for his education, fund his airfare, and support him.
The worker paid for the second respondent to go to Australia in 2012 and 2017. He paid for her total knee replacement and regularly sent her money. He sold a property in his name to help her pay off some loans.
The second respondent submitted there was a reasonable expectation that the worker would sponsor her to move to Australia, after which he would have provided for her totally. She had an ongoing dependency on him.
The second respondent understood that the worker was running a successful business with three trucks, and the business was expanding.
The second respondent is 63 years old. Her life expectancy is 25 years, and she would have remained dependent for all that period.
There is no dispute that Giselle was totally dependent on the worker at the date of his death. She is now six years old.
The applicant was also totally dependent at the date of death. The second respondent submitted it was not known what her future dependency would have been. She had given evidence in May 2023 that she had recently returned to work. It was likely that she would be able to continue working as she had her parents to help her look after Giselle. She had previously worked as a real estate agent, a field of work to which it would be comparatively easy to return whilst raising Giselle.
The second respondent submitted that the records of earnings of the worker and the applicant did not provide much insight into the “real state of affairs”. The worker’s tax returns disclosed income of $35,000 per annum. The applicant claimed weekly support of four times that income. The company tax returns did not disclose any payments to the worker. The applicant had not provided any evidence of her earnings prior to ceasing work when Giselle was born.
The second respondent submitted that the company’s books of account may have assisted to explain the other expenses of the business and what payments were really being made. The deficiencies in the evidence made it difficult to precisely calculate dependency.
The second respondent submitted it was clear that the applicant’s assessment of dependency was not supported by the evidence, and this had been left unexplained. This was recognised in the applicant’s submissions. The assumptions were purely speculative and should not be accepted, given that the applicant could have provided the material.
The second respondent submitted that the earnings disclosed by the tax returns showed there was a need for the applicant to return to work, particularly if the weekly expenses were of the magnitude she claimed.
The second respondent submitted that the likely scenario was that she would have remained dependent for another 25 years. The dependency would have increased as she aged, and her needs increased. It would have increased if the worker was able to get a parent visa, as had been obtained for the applicant’s parents.
Giselle would have remained dependent until the end of school, with some possible further years if she went on to tertiary education. The second respondent submitted that dependency should be assumed to age 21, a further 15 years. The quantum would be greater than that of the second respondent, but for a shorter period.
The second respondent submitted that the applicant would have remained dependent, but the dependency would have been partial. Her life expectancy was 37 years.
The second respondent submitted that, applying the above relativities, an appropriate apportionment would be:
(a)    applicant: 50%;
(b)    fourth respondent: 25%, and
(c)    second respondent: 25%.
The second respondent submitted that interest should be apportioned in the same proportions.

Fourth respondent

The fourth respondent relied on the evidence of the applicant and adopted her submissions concerning the factual background and related submissions.

The fourth respondent submitted that no payments were made to the second respondent in the 2018 and 2019 calendar years. If the average were taken over the four years preceding the worker’s death, then the average payment to the second respondent would average $28.52 ($29) per week.
The fourth respondent submitted that the second respondent now asserted that the worker was providing her with support that was equal to A$1,850 per month, in contrast with her first and second statements, which amounted to A$30 per week, or about A$125 per month.
The fourth respondent submitted that I would not accept the assertion of benefits of A$1,850 per month, having regard to the second respondent’s evidence. She declared in her first statutory declaration that she received support from the worker in two forms. The first related to cash payments when he came to India, and the second was a detailed list of transfers to her bank account.
The fourth respondent submitted that there was no mention in the statutory declaration of payments being made via Western Union/Moneygram, or cash being paid by friends of the worker who made trips to India.
The fourth respondent submitted that in her second statement the second respondent gave evidence that the worker frequently deposited large amounts of money in her accounts. (Emphasis in submissions). She inferred that a deposit of 10,000 rupees was a “large amount”.
The fourth respondent submitted that the second respondent had referred to the Moneygram facility as a small money transfer facility, from which she could withdraw cash. (Emphasis in submissions). She inferred that a small amount was less than 10,000 rupees.
The fourth respondent submitted that the second respondent raised in her second statement, for the first time, that the worker gave money to his friends to pass onto her. Each amount appeared to be up to A$900 in cash.
The fourth respondent submitted that the cash payments by the worker in 2012 and 2017 of which the second respondent gave evidence did not substantially change the calculations of average support over the four years preceding the worker’s death, as they were outside that timeframe. In any event, an additional A$960 over four years was de minimis.
The fourth respondent submitted that I would not make any allowance for cash being transported by the worker’s friends. The second respondent’s township is approximately 84km north of New Delhi. The fourth respondent submitted that the instances of people being prepared to “go out of their way” to drop off cash would be very few. It “begs the question” [sic] of why the worker would not just immediately and securely transmit funds to his mother’s account, where she could easily access them.
The fourth respondent submitted that, in addition, COVID-19 interfered with travel plans from about March 2020, precluding travel between Australia and India. The second respondent had given no evidence of the number of occasions on which friends of the worker delivered cash.
The fourth respondent submitted that it is incorrect that the worker cancelled plans to go to India with his family in February 2020 because the pandemic had just begun. As travel was only stopped in March 2020, the more likely explanation was that the family did not have the funds to travel to India. There is no evidence of that, and I give the submission no weight.
The fourth respondent submitted that I would not accept that there was a tenfold increase in the level of support for the second respondent from A$1,560 per annum to A$22,200 per annum, as she asserted in her third statement. Even if small sums were transferred to her Moneygram account, they would be “insignificant in the scheme of things”.
As regards apportionment, the fourth respondent adopted the applicant’s submissions regarding her and her mother. She submitted that the more appropriate means of calculating the likely support for the second respondent was to average it over four years; and rounding the figure up to $30 per week would allow $28,404.
The fourth respondent adopted the applicant’s submissions in respect of physical domestic support.
The fourth respondent submitted that the following percentages and amounts should apply:
(a)    applicant: 62.37% = $529,713.30;
(b)    fourth respondent: 35.31% = $299,882.93, and
(c)    second respondent: 2.32% = $19,703.77.
I note that the above figures are incorrect (although they add up to $849,300) but I have had regard to the percentages.
The fourth respondent submitted that a further allowance to the second respondent of $20,000 could not be supported, based on the average support over the years.
The fourth respondent submitted that it was appropriate that the significant apportionment be made in favour of the applicant. She would be advantaged by increased financial security for her mother.
The fourth respondent submitted that it would be appropriate to provide her with a minimum of $200,000. To the extent that the apportionment in favour of the second respondent was reduced from $50,000, the amount of the reduction should be awarded to the fourth respondent.
The fourth respondent submitted that funds management fees are payable with respect to the lump sum compensation allocated to her.
As regards interest, the fourth respondent adopted the applicant’s submissions.

First respondent

The first respondent has provided submissions on the issue of interest.
The first respondent submitted that an award for interest should be made not as a punitive measure, but because a party had a lawful entitlement to a sum and had been kept out of their money (Khan v Terry Shields Toyota Pty Limited).[1]
[1] (1990) 6 NSWCCR 233.
The first respondent submitted that the two key issues for determination are:
(a) when was the claim for dependency duly made?
(b) at what rate is interest appropriate to be paid?
The first respondent submitted that Shashati v State of NSW[2] indicates (at paragraph 75) that “duly made” refers to the provision of specific information. The decision of President Keating in Kaur v Thales Underwater Systems Pty Ltd[3] is authority that “duly made” means “fully particularised”.
[2] [2017] NSWWCC 99.
[3] [2011] NSWWCCPD 6 (Kaur).
The first respondent submitted that the date on which each dependant served information required to show an entitlement to the death benefit should characterise each date of a duly made claim – being the date on which the claim for “dependency” was fully particularised.
The first respondent submitted that the appropriate commencement date for payment of interest in each case, being the date on which the claims were fully particularised, was as follows:
(a) 24 November 2022 for the applicant and the fourth respondent, being the date on which the applicant commenced proceedings and served the Application on the first respondent. The claim was “fully particularised” by the evidence served, and
(b) 9 June 2023 for the second respondent, being the date on which the late documents and supplementary statement were served, prior to which the claim for dependency was not fully particularised.
As to the rate of interest, the first respondent submitted that interest on the death benefit should reflect the loss to the estate – Cameron v StateCover Mutual Limited.[4] This authority was considered in McGrath v P.M. Electric Pty Limited,[5] which also confirmed that the award of interest is discretionary.
[4] [2015] NSWWCC 325.
[5] [2023] NSWPICPD 31 (McGrath).
The first respondent also referred to the decision of Arbitrator Sweeney, as he then was, in Beves v Patrick Stevedores No 2 Pty Ltd,[6] in which he paraphrased the reasoning in Bennett v Jones[7] - “the money has been outstanding for a period during which the defendant has had the benefit of not paying it, and the plaintiff the detriment of not having it”.
[6] [2014] NSWWCC 178.
[7] [1977] 2 NSWLR 355 (Bennett).
The first respondent submitted that the interest rate the parties could have received on the monies had they had the benefit of the funds is reflected by a commercial interest rate, which is no greater than 1% per annum over the Reserve Bank of Australia (RBA) cash rate, which was as follows:
(a)    2 November 2022 – 2.85%;
(b)    7 December 2022 – 3.10%;
(c)    8 February 2023 – 3.35%;
(d)    8 March 2023 – 3.6%;
(e)    3 May 2023 – 3.85%, and
(f)    7 June 2023 – 4.1%.
The first respondent submitted that the retail interest rates for term deposits at the four main bank lenders as at 1 June 2023, as advised by Canstar, were below 3.6% per annum on six month terms, and not greater than 4% per annum on terms of one to five years. The rates were set out in a table.
The first respondent submitted that, “arguably”, the rate of interest that the parties could have been expected to receive if they had the monies would not have exceeded 4% per annum.
The first respondent submitted that the submissions in respect of interest by the other parties were of no assistance, as they did not address the correct test, relevant history or facts, or the rate of interest.
The first respondent submitted that interest should be paid on the death benefit as follows:
(a) applicant and fourth respondent: from 24 November 2022 at 4% per annum to date of order, and
(b) second respondent: from 9 June 2023 at 4% per annum to date of order.
The first respondent submitted that interest should be payable on the proportion of the death benefit to which each party was entitled.

SUMMARY

Section 25 of the 1987 Act provides:

5 Death of worker leaving dependants2“

(cf former s 8 (1))
(1) If death results from an injury, the amount of compensation payable by the employer under this Act shall be--
(a) the amount of $750,000 (the ‘lump sum death benefit’), which is to be apportioned among any dependants who are wholly or partly dependent for support on the worker or (if there are no such dependants) paid to the worker's legal personal representative, and
(b) 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.
(1A) If the lump sum death benefit is paid to the NSW Trustee for the benefit of a dependant in accordance with section 85 after the commencement of this subsection, the employer must, subject to the regulations, pay as additional compensation fees of a kind prescribed by the regulations concerning investing or otherwise managing the sum for the dependant's benefit.
(2) Payments in respect of a dependent child under subsection (1) (b) shall continue--
(a) except as provided by paragraph (b)--until the child dies or reaches the age of 16 years, whichever first occurs, or
(b) in the case of a dependent child who is a student at the time of the worker's death or after reaching the age of 16 years--until the child dies, reaches the age of 21 years or ceases to be a student, whichever first occurs.
(3) The amount of any weekly payments, or other compensation payable under this Act, shall not be deducted from the amounts referred to in subsection (1) (a) or (b).
(4) If an amount mentioned in subsection (1) (a) at any time after the commencement of this Act--
(a) is adjusted by the operation of Division 6, or
(b) is adjusted by an amendment of this section,
the compensation payable under subsection (1) (a) is to be calculated by reference to the amount in force at the date of death.
(4A) If the death of a worker results both from an injury received before the adjustment of an amount mentioned in subsection (1) (a) and an injury received after that adjustment, the worker shall, for the purposes of subsection (1) (a), be treated as having died as a result of the injury received after that adjustment.
(5) In this section--
‘child of the worker’ means a child or stepchild of the worker and includes a person to whom the worker stood in the place of a parent.
‘dependent child of the worker’ means a child of the worker who was wholly or partly dependent for support on the worker.
‘student’ means a person receiving full-time education at a school, college or university.”

Section 109 of the Workplace Injury Management and Workers Compensation Act 1998 (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.”

Apportionment of the lump sum death benefit

The applicant and the second and fourth respondents were all to some degree dependent on the worker for support.
McHugh JA said of the concept of “dependency for support” in TNT Group 4 Pty Ltd vHalioris:[8]
“Dependency is a question of fact: Potts v Niddrie & Benhar Coal Co Ltd[9]; Aafjes v Kearney[10]. 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, 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.” (at [14]).
[8] (1987) 3 NSWCCR 10.
[9] [1913] AC 531 at 539, 542.
[10] (1976) 50 ALJR 454 at 456, 457, 459.
The factors relevant to the apportionment of compensation among dependants are set out in the judgment of Egan ACCJ in Wratten v Kirkpatrick:[11]
“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 ages of the dependants, their health, special needs, lifestyle etc.” (at [34]-[35]).
[11] [1996] NSWCC 2; 15 NSWCCR 32.
The value of weekly payments to a dependent child should be taken into account when carrying out an apportionment between dependants (Vukicevic v Simpson[12]; Chant v Ready Mixed Concrete Industries Ltd).[13]
[12] (1962) 36 WCR 221.
[13] (1973) 47 WCR 106.
The second respondent has conceded that the applicant and the fourth respondent were wholly dependent on the worker, and I accept that is the case. Any amount apportioned to the applicant will also, of course, benefit Ms Gahalian, who will remain in her care and gain a secure home.
The applicant’s evidence is that she was not employed at the date of the worker’s death. In her first statement, she calculated expenses that, as she has conceded in her submissions, significantly exceeded the worker’s declared income.
The applicant submitted that it was therefore reasonable to infer that the worker was drawing funds for expenses from the first respondent’s cash flow. However, in her first statement, she stated that he did not pay himself regularly from the company. An accountant did the company’s tax at the end of each financial year.
The tax returns submitted by the first respondent for the financial years 2018 and 2019 show “payment to associated persons” of $30,000, but no salary or wages. In 2020, the “payment to associated persons” was $35,000.
The applicant’s tax return for the financial year 2020 recorded her occupation as “director – managing” and her earnings as $15,000. It recorded net rental property loss of $12,439.
The applicant’s tax return for 2021 again recorded her occupation as “director – managing”. Her earnings were $13,500. Net rental property loss of $91 was also recorded.
The second respondent submitted that the company’s books of account may have assisted, but the applicant would have had to return to work, particularly if the outgoings were as she claimed.
The applicant’s evidence was that the worker intended that she stay at home and care for the family. He intended to grow the business so that she did not have to work at all. Even small real estate jobs she may have done could not be allowed to affect her ability to look after
Ms Gahalian, or the worker’s ability to do his job.
In the circumstances, I accept that it was likely that the worker was using the first respondent’s funds for expenses. The applicant’s evidence is that the mortgage alone was $731.47 per week. That would have exceeded the worker’s weekly income.
The applicant has returned to work since the worker’s death, and she has expressed her desire to remain in her current role, or alternatively return to work as a real estate agent, but of course her and her daughter’s situation has changed. She is no longer able to stay at home full time. She has given no evidence that, had the worker not died, she intended to return to work, for example, when Ms Gahalian was older and more self-sufficient.
I accept that the likelihood was that the applicant would have remained dependent on the worker, as it appears it was the wish of them both that she either not work outside the home or do little paid work.
I accept that Ms Gahalian is likely to have remained at least partly dependent on the worker until the age of approximately 23. If she pursued tertiary education, she would likely be aged 21 or 22 when that was completed. In my view, it is reasonable to expect that her father would have provided her with some support while she found paid work, which at least in the beginning, may not be particularly remunerative.
The evidence is that the worker provided the second respondent with some modest support, by way of small sums transferred to her. However, he also paid for her to undergo surgery, and for her to visit him and his family in Australia. I accept that it is likely he gave her money when he visited her.
The second respondent, having initially given no evidence about her employment, stated in her final statement that she was a “paid volunteer” for many years. The payments were small, and in the last years she had ceased doing this work regularly. In my view, the payments to her were likely to increase as she aged, and if, as he hoped, the worker had been able to grow his business.
The second respondent has given evidence that the worker hoped to bring her to Australia to live, as he and the applicant had done for her parents. The applicant has given no evidence about this. It appears to me likely that the worker would have attempted to bring his mother, like his in-laws, to Australia. I accept her evidence that, for cultural reasons, had that come to pass, she would have lived with him and the applicant.
The applicant, the second respondent and the fourth respondent have provided submissions on apportionment by way of the percentage of the lump sum to be apportioned to each. Taking into account the likely periods of dependency, I believe it is appropriate for the lump sum to be apportioned in the highest amount to the applicant, and for the fourth respondent to receive a higher amount than the second respondent.
Considering the interests of each claimant, in my view, an appropriate apportionment is as follows:
(a)    applicant: 65% = $552,045
(b)    second respondent: 8% = $67,944
(c)    fourth respondent: 27% = $229,311
Pursuant to s 85(1)(a) of the 1987 Act, the amount apportioned to the fourth respondent is to be paid to the NSW Trustee and Guardian to be held on trust for her benefit.

Interest on the lump sum death benefit

An award of interest is discretionary. It is subject to the limitations in ss 109(2) and 109(3) of the 1998 Act. Subsection (2)(b) provides that interest cannot be ordered on any compensation payable for any period before a claim for compensation was duly made.
In Haidary v Wandella Pet Foods Pty Limited, Dynamix Pty Ltd and Burragong Pet Foods Pty Ltd,[14] Deputy President Fleming said:
“The award of interest by the Commission, pursuant to section 109 of the 1998 Act is discretionary. Mr Haidary will only be entitled to interest, if awarded, on those amounts of his weekly entitlement that were unpaid, and only from the date that his claim ‘was duly made’. …The purpose of ordering interest on an award is to compensate the worker for the loss of his or her income, not to penalise the employer (Virag v James N Kirby t/as Betts Electric Motors[15]; Healey v McPherson Binding Pty Ltd).”[16]
[14] [2005] NSWWCCPD 9.
[15] [1990] NSWCC 1; (1990) 6 NSWCCR 86.
[16] (1989) 5 NSWCCR 139.
The decision of President Keating in Kaur has consistently been applied in the Commission. His Honour said, 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.”
“Duly made” has been held to mean “fully particularised”. [17] The claim was not fully particularised until each claimant had provided evidence in support of her claim. I accept the first respondent’s submission in this regard.
[17] Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited [2020] NSWCC 36 and the decisions discussed therein.
It is arguable that the applicant’s claim was not duly made until she made her second statement, dated 25 May 2023, as she provided further evidence about her dependency. However, the first respondent has accepted that her claim was duly made when the Application was lodged on 24 November 2022, as was that of the fourth respondent. I have therefore adopted that date as the appropriate date from which interest should be paid on the amounts apportioned to the applicant and the fourth respondent.
The second respondent’s claim was not duly made until 7 June 2023, when she provided further evidence of dependency, and I accept the first respondent’s submission in this regard. That is the appropriate date from which interest should be paid on the amount apportioned to the second respondent.
As regards the rate at which interest should be paid, it was held in Bennett that interest should generally be awarded on the “neutral” basis that the defendant “ought to have paid” the plaintiff at a particular time, but did not, and since that time the plaintiff has been out-of-pocket of that money and the defendant has had the benefit of it.
The first respondent relied on the retail interest rates for term deposits at the four main bank lenders in support of its submission as to the rate at which interest should be paid. I do not have the benefit of submissions from the applicant, the second respondent, or the fourth respondent as to the appropriate rate of interest.
In my view, the rate of interest of 4% per annum suggested by the first respondent is unduly low. It is also not in accordance with recent decisions of the Commission, in which an appropriate rate of interest has been accepted as being 2% above the RBA cash rate at the relevant date. This was held in McGrath to be appropriate and has been applied by other members.[18]
[18] See for example Rogers v State of New South Wales (Northern NSW Local Health District) & Ors [2023] NSWPIC 398; and BDU by next friend BKO & Ors v State of New South Wales (NSW Police Force) & Ors[2023] NSWPIC 208.
I therefore determine that interest should be paid on the lump sum death benefit, apportioned in accordance with each parties’ apportioned amount, as follows:
(a) Applicant and fourth respondent:
(i)from 24 November 2022 to 6 December 2022: 4.85% per annum;
(ii)from 7 December 2022 to 7 February 2023: 5.1% per annum;
(iii)from 8 February 2023 to 7 March 2023: 5.35% per annum;
(iv)from 8 March 2023 to 2 May 2023: 5.6% per annum;
(v)from 3 May 2023 to 6 June 2023: 5.85% per annum, and
(vi)from 7 June 2023 to the date of the Certificate of Determination: 6.1% per annum.

(b) Second respondent:
(i)from 7 June 2023 to the date of the Certificate of Determination: 6.1% per annum.

Additional compensation fees

I have calculated the interest payable on that part of the lump sum apportioned to the fourth respondent to be $10,367.97.
I have calculated the additional compensation fees to be paid to the NSW Trustee and Guardian pursuant to s 25 (1A) of the 1987 Act and cl 177 of the Workers Compensation Regulation 2016 for the management of the lump sum benefit that is to be paid to the fourth respondent to be $54,133.44.
I will grant liberty to apply if there is disagreement as to the calculation.
The orders are set out in the Certificate of Determination.

[2023] NSWPIC 469

13 September 2023