State of New South Wales (NSW Police Force) v Bav - [2022] NSWPIC 499

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	State of New South Wales (NSW Police Force) v BAV & Ors [2022] NSWPIC 499
APPLICANT:	State of New South Wales (NSW Police Force)
FIRST RESPONDENT	BAV
SECOND RESPONDENT	BBJ
THIRD RESPONDENT	BCG
FOURTH RESPONDENT	BBL
FIFTH RESPONDENT:	BCH
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	16 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for benefits in respect of death of a worker; liability accepted; claim by first respondent claiming to have been partner of worker disputed by fifth respondent worker’s brother; no claim by second, third and fourth respondents who entered into Deed with first respondent with respect to dispute in respect of the worker’s estate and disclaimed any dependency on the worker; claim by first respondent to have been partly dependent on worker; claim by fifth respondent to have been dependent on worker for emotional support; entitlement to interest conceded by applicant; agreement by applicant and first respondent on rate of interest; period during which interest to be paid not agreed; claim by first respondent for increase of 30% in costs, due to complexity; consideration of Youseph v Homebush Unit Trust t/as Primo Smallgoods; TNT Group 4 Pty Limited v Halioris; Richardson v Turfco Australia Pty Ltd; Warilla Timber and Hardware Pty Ltd v Newton; Albury Real Estate Pty Ltd v Rouse and anor; Kaur v Thales Underwater Systems Pty Ltd; and McGrath v P.M. Electric Pty Ltd & Ors; Held – first respondent was partly dependent on worker for support; no other persons were dependent on worker for support; lump sum benefit and interest to be paid to first respondent; applicant to pay first respondent’s costs as agreed or assessed; first respondent and applicant’s costs increased by 20% due to complexity of matter.
determinations made:	1. That the worker, BDA, died on 2 January 2021 as a result of injury arising out of or in the course of employment with the applicant. 2. That the first respondent was partly dependent for support on the worker at the date of her death. 3. That there were no other persons dependent for support on the worker at the date of her death. 4. That the applicant is liable for payment of the lump sum benefit of $834,200, pursuant to section 25 of the Workers Compensation Act 1987.
ORDERS MADE:	1. That the applicant is to pay to the first respondent, pursuant to section 25 of the Workers Compensation Act 1987 and section 85A(1) of the Workers Compensation Act 1987 the sum of $834,200. 2. That the applicant is to pay to the first respondent interest on the lump sum compensation, pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998, at the rate of 2.1% per annum from 25 February 2022 to 8 July 2022. 3. That the applicant is to pay the first respondent’s costs as agreed or assessed. 4. That the costs of the first respondent and the applicant are to be increased by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading State of New South Wales (NSW Police Force) v Bav

Details

AGLC: State of New South Wales (NSW Police Force) v BAV [2022] NSWPIC 499
Case: [2022] NSWPIC 499
Decision Date: 16 August 2022

CaseChat Overview and Summary

The matter before the Court was a dispute concerning the entitlement to workers' compensation benefits following the death of a worker. The applicant, the State of New South Wales (NSW Police Force), had accepted liability for the worker's death. The first respondent, who claimed to have been the worker's partner, sought compensation benefits. This claim was contested by the fifth respondent, the worker's brother, who disputed the first respondent's relationship with the worker. Other respondents, the second, third, and fourth, entered into a deed with the first respondent and disclaimed any dependency on the worker. The first respondent claimed to have been partly dependent on the worker, while the fifth respondent argued for dependency based on emotional support.

The legal issues before the Court involved determining the dependency of the first respondent on the deceased worker, assessing the validity of claims made by the first and fifth respondents, and resolving the costs associated with the dispute. The Court considered the relevant case law, including Youseph v Homebush Unit Trust t/as Primo Smallgoods, TNT Group 4 Pty Limited v Halioris, Richardson v Turfco Australia Pty Ltd, Warilla Timber and Hardware Pty Ltd v Newton, Albury Real Estate Pty Ltd v Rouse and anor, Kaur v Thales Underwater Systems Pty Ltd, and McGrath v P.M. Electric Pty Ltd & Ors, to assist in making these determinations.

The Court found that the first respondent was partly dependent on the worker for support. It dismissed the claims of the fifth respondent and others who disclaimed any dependency. The Court also determined that the period for which interest should be paid was not agreed upon, but an agreement on the rate of interest was reached between the applicant and the first respondent. The Court awarded the first respondent a lump sum benefit and interest, and ordered that the applicant pay the first respondent's costs as agreed or assessed. Additionally, the Court increased the costs for both the first respondent and the applicant by 20% due to the complexity of the matter.

The final orders were that the applicant was to pay the first respondent the lump sum benefit and interest at the agreed rate, along with an additional 20% increase in costs for both parties due to the complexity of the case. The period for which interest would be paid remained to be determined in future proceedings.

Orders