Sparkes v Reliance Recruitment
[2023] NSWPIC 457
•6 September 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Sparkes v Reliance Recruitment & Ors [2023] NSWPIC 457 |
| APPLICANT: | Kirsty Sparkes |
| FIRST RESPONDENT: | Reliance Recruitment |
| SECOND RESPONDENT: | Jack Thomson |
| THIRD RESPONDENT: | Brandi Thomson |
| FOURTH RESPONDENT: | Lynette Pascoe |
| FIFTH RESPONDENT: | Mia Thomson |
| SIXTH RESPONDENT: | Cooper Thomson |
| SENIOR MEMBER: | Elizabeth Beilby |
| DATE OF DECISION: | 6 September 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; lump sum death benefits; no dispute that the deceased died as a result of an injury arising out of or in the course of employment with the first respondent; first respondent 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; parties were able to agree on interest payable; orders made accordingly. |
| DETERMINATIONS MADE: | The Commission determines: 1. I find that the applicant, the second, third, fourth, fifth and sixth respondents were either partially or wholly dependent upon the deceased as at the date of his death on or about 18 November 2019. 2. There was no other person that was dependent upon the deceased as at the date of death. 3. The lump sum benefit payable in accordance with s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act) as at the date of death was $816,850. 4. The applicant is to pay the lump sum benefit based upon the following (agreed) apportionment: (a) 10% to the applicant ($81,685); (b) 25% to the second respondent ($204,212.50); (c) 10% to the third respondent ($81,865); (d) 5% to the fourth respondent ($40,842.50); (e) 25% to the fifth respondent ($204,212.50), and (f) 25% to the sixth respondent ($204,212.50). 5. Pursuant to s 85A of the 1987 Act, the sum apportioned in favour of the applicant, third and fourth respondent is to be paid directly to her. 6. I direct that the entitlements of the second, fifth and sixth respondents are to be paid to the NSW Trustee and Guardian until the second, fifth and sixth respondents reach the age of 18 respectively. 7. In respect of the fees paid in relation to the funds management for the NSW Trustee and Guardian, the first respondent is to pay: (a) $48,008.38 in respect of the second respondent; (b) $18,792.63 in respect of the fifth respondent, and (c) $27,446.44 in respect of the sixth respondent. 8. The claim was amended to include a claim for interest. There is an award for the first respondent in relation to the claim for interest. The first respondent is to reimburse the applicant in relation to funeral expenses in the sum of $6,397. |
STATEMENT OF REASONS
BACKGROUND
Mr Daniel Thompson (the deceased) died on or about 18 November 2019.
Reliance Recruitment (the employer) 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).
The deceased was married to Kirsty Sparkes, (the applicant) in June 2017. They had one child together, namely the second respondent who was born in 2017.
The deceased had previously been married to Brandi Thomson, divorcing in 2016. They had a son, the sixth respondent (born in 2010) and a daughter, the fifth respondent (born in 2008).
The deceased suffered an injury at work on 23 November 2016 which involved a number of surgeries to his right shoulder and arm after which he developed a secondary psychological condition.
Sadly, Mr Thomson passed away on 18 November 2019 as a result of his injuries.
ISSUES FOR DETERMINATION
The parties agreed that the following issues remain in dispute:
(a) dependency as at the date of death;
(b) apportionment of the lump sum death benefit, and
(c) any entitlement for interest.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
At the listed hearing, the parties were able to agree to a proposed resolution of the matter regarding dependency.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Replies from the respondents, and
(c) Application to Admit Late Documents.
I will now deal with the issues in turn:
Dependency
A dependant 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”.
The applicant has put on a statement which addresses her dependency on the deceased. It is quite clear that they were married, lived together and that she relied on the deceased’s income to pay for rent, bills, food, and all of their son’s expenses. There is no doubt that the applicant, together with their young son, was financially dependent on the deceased as at the date of death.
The deceased was married to the Brandi Thomson, (the third respondent) in 2009 and separated in April 2012. They had two children together, namely the fifth and sixth respondents, who are all domiciled in Canada.
Whilst there was an obvious emotional dependence upon the deceased, there was also financial dependency as the deceased used to pay for extra-curricular activities, send gifts and also make payments in the form of child support. Brandi Thomson alleges that the financial support provided was less than that which was directed by a Court Judgement (presumably from Family Court proceedings).
Brandi Thomson herself has difficulties and is on a disability pension for mental health reasons for the past six years. She has recently been able to start working again.
The fourth respondent is Lynette Pascoe, the deceased’s mother. She does not appear to have any significant financial dependence however says that she had a close and supportive relationship with her son through his life and he had always been supportive of her when she was struggling after failed relationships. The support appears to be predominantly emotional as opposed to financial, though by inference there was some financial reliance.
There was no evidence before me that there is any other person that wishes to be or could be described as dependent upon the deceased as at the date of death in either a full or partial capacity. Statutory declarations have been made from family members who may have been considered as potential dependant parties to the effect that they do not wish to make an application in the present case. I therefore find that there were no other dependants.
The parties have agreed on a proposed apportionment of the lump sum benefit of $862,350 in the following proportion:
(a) 10% to the applicant;
(b) 25% to the second respondent;
(c) 10% to the third respondent;
(d) 5% to the fourth respondent;
(e) 25% to the fifth respondent, and
(f) 25% to the sixth respondent.
I find that the respondents would have continued to benefit from the deceased’s support financially but for his death.
I therefore make orders as sought by respondent in relation to the proposed apportionment. The apportionment recognises the relative dependency each had on the deceased. It recognises the deceased’s children’s ages and affords them a greater proportion than their mothers. Whilst there are differing ages amongst the children, I recognise the importance of parity amongst children and their differing levels of dependency and need. The proposed apportionment is appropriate in the circumstances of this case.
Orders
I find that the applicant, the second, third, fourth, fifth and sixth respondents were either partially or wholly dependent upon the deceased as at the date of his death on or about 18 November 2019.
There was no other person that was dependent upon the deceased as at the date of death.
The lump sum benefit payable in accordance with s 25(1)(a) of the 1987 Act as at the date of death was $816,850.
The applicant is to pay the lump sum benefit based upon the following (agreed) apportionment:
(a) 10% to the applicant ($81,685);
(b) 25% to the second respondent ($204,212.50);
(c) 10% to the third respondent ($81,865);
(d) 5% to the fourth respondent ($40,842.50);
(e) 25% to the fifth respondent ($204,212.50), and
(f) 25% to the sixth respondent ($204,212.50).
Pursuant to s 85A of the 1987 Act, the sum apportioned in favour of each adult dependant (namely the applicant, third and fourth respondents) is to be paid directly to her.
I also direct that the entitlements of the second, fifth and sixth respondents are to be paid to the NSW Trustee and Guardian until the second and third respondents reach the age of 18 respectively.
In respect of the fees paid in relation to the funds management for the NSW Trustee and Guardian, the first respondent is to pay:
(a) $48,008.38 in respect of the second respondent;
(b) $18,792.63 in respect of the fifth respondent, and
(c) $27,446.44 in respect of the sixth respondent.
The claim was amended to include a claim for interest. There is an award for the first respondent in relation to the claim for interest.
The first respondent is to reimburse the applicant in relation to funeral expenses in the sum of $6,397.
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