State of New South Wales (NSW Police Force) v Loh
[2021] NSWPIC 183
•15 June 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | State of New South Wales (NSW Police Force) v Loh [2021] NSWPIC 183 |
| APPLICANT: | State of New South Wales (NSW Police Force) |
| RESPONDENT: | Jessica Loh |
| SECOND RESPONDENT: | Tiffany Loh as tutor of Etzio Vidal |
| SENIOR MEMBER: | Glenn Capel |
| DATE OF DECISION: | 15 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Death claim; written submissions filed by parties; TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd and Wratten v Kirkpatrick & Ors discussed and applied; Held-determination of dependency; apportionment of death benefit amongst dependants. |
| DETERMINATIONS MADE: | 1. The deceased worker, Aaron David Vidal, died on 18 June 2020 as a result of injuries sustained during the course of his employment with the applicant. 2. Jessica Loh was partly dependent for support upon the deceased at the date of death. 3. Etzio Vidal was wholly dependent for support upon the deceased from the time that he was conceived and born in January 2021. 4. The deceased had no other persons dependent on him. 5. The applicant is liable for the payment of lump sum compensation. |
| ORDERS MADE | 6. The lump sum compensation of $827,400 payable pursuant to section 25(1)(a) of the Workers Compensation Act1987 is to be apportioned in accordance with section 29 of the Workers Compensation Act1987 as follows: (a) $617,400 to Jessica Loh, and (b) $210,000 to Etzio Vidal. 7. The applicant is to pay lump sum compensation of $617,400 to Jessica Loh pursuant to section 85A(1)(a) of the Workers Compensation Act1987. 8. The applicant is to pay lump sum compensation of $210,000 to the New South Wales Trustee and Guardian to hold on trust pursuant to section 85(1)(c) of the Workers Compensation Act1987 until Etzio Vidal attains the age of 18 years. 9. The applicant is to pay the respondents’ costs as agreed or assessed. |
STATEMENT OF REASONS
BACKGROUND
The deceased worker, Aaron David Vidal, died on 18 June 2020 as a result of injuries sustained during the course of his employment with the State of New South Wales (NSW Police Force) (the applicant).
It would appear that liability was accepted by Employers Mutual Ltd (the insurer) pursuant to s 25(1)(a) of the Workers Compensation Act1987 (the 1987 Act) in the latter part of 2020, subject to a determination of dependency. The correspondence regarding its decision to accept liability is not in evidence. Letters were sent by the applicant’s solicitor to potential dependants in November 2020 and December 2020, and there was some delay before responses were received.
The applicant filed an Application in Respect of Death of Worker (the Application) in the Personal Injury Commission (the Commission) on 15 April 2021.
The deceased’s defacto partner, Jessica Loh, is named as the first respondent and Tiffany Loh as tutor of Etzio Vidal is the second respondent.
The applicant seeks apportionment of the lump sum death benefit of $827,400 in accordance with ss 25(1)(a) and 29 of the 1987 Act, and orders authorising payment of the lump sum pursuant to ss 85 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.
At the telephone conference on 14 May 2021, I directed that the respondents file written submissions by 4 June 2021 and any submissions in reply by 11 June 2021. The parties complied with this direction.
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 $827,400 payable – s 29 of the 1987 Act, and
(c) orders in relation to payment of the compensation and interest – ss 85 and 85A(1)(a) of the 1987 Act.
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, and
(b) First Respondent’s Reply with attachments.
Oral evidence
The parties did not seek leave to adduce oral evidence or cross examine any witnesses.
REVIEW OF EVIDENCE
Statements of Jessica Loh
Jessica Loh provided statements on 24 November 2020 and 29 March 2021. She advised that she started cohabiting with the deceased in his father’s home in or about November 2016. They purchased a house together in August 2018. The deceased was delighted at the thought of becoming a father.
Ms Loh stated that they deposited money into a joint Commonwealth Bank account and the funds were used to pay for household expenses, utility accounts, council rates, NBN and mortgage payments. They had booked a marriage celebrant for their proposed wedding on 10 October 2020.
Ms Loh indicated that they shared the household duties such as shopping. The deceased was largely responsible for cooking, gardening, and washing dishes, and she did the bulk of the cleaning and washing clothes, and they shared the shopping. She and her child were the only dependants of the deceased.
Ms Loh stated that she has a mortgage and her living expenses are about $50,000 per year and her mortgage payments are around $34,320 per year. She was working as a personal assistant earning approximately $50,000 per annum until she gave birth to her son in January 2021. She is full time mother and she is not in receipt of any leave or maternity leave benefits. Her son has no health issues. She did not plan to return to the workforce until her son completes his primary schooling in or around 2034.
Documents
The applicant has included statutory declarations from the deceased’s parents and siblings. I do not propose to discuss the contents of these documents which I have reviewed. Suffice to say that they confirmed that they were not dependent on the deceased at the time of his death. They indicated that they did not have an entitlement to the death benefit, and they did not wish to make a claim.
The birth certificate of the second respondent and the deceased’s death certificate are in evidence. The deceased’s will was executed in 2010 and he left his estate to his parents.
The Commonwealth Bank saving and loan account statements, as well as the utility accounts, are in joint names and are consistent with the first respondent’s statements. The mortgage current stands at approximately $533,400.
The first respondent’s tax return for the financial year ending 30 June 2020 showed that she was employed by DFM Properties Pty Ltd and that she had a taxable income of $53,613. The deceased’s tax return showed a taxable income of $76,915.
FIRST RESPONDENT’S SUBMISSIONS
The first respondent’s solicitor, Ms Dalyell, submits that the first respondent was dependent on the deceased for financial support during the time that they were in a relationship. She is currently in receipt of $150 per week for her son and has no other source of income. She wishes to discharge the mortgages on her home. She makes no submissions regarding apportionment of the death benefit.
SECOND RESPONDENT’S SUBMISSIONS
The second respondent’s counsel, Mr Stockley, submits that the assessment of a statutory benefit involves and assessment of past events and future probabilities. He submits that the second respondent is the natural child of the deceased, although he was born after the deceased had died. But for the deceased’s death, the first respondent would have ceased work until her son commenced school.
Mr Stockley submits that the second respondent has no known disability or special needs, and given his age, is impossible to make any particular conclusion about his likely period of dependency, other than to assume that he would have continued to be financially dependent and continued to reside in a household with his parents until completion of secondary schooling when he was about 22 years old.
Mr Stockley submits that if one assumed that the second respondent was dependent on his father for a third of his father’s income for that period, a simple arithmetic calculation of his loss would be the equivalent of $320 per week, or $225,576 by applying the 5% tables on $320 per week for 22 years. This figure represents 27% of the death benefit. Some adjustment might need to be made to take into account the first respondent’s future income after five or six years. He submits that the Commission would be satisfied that an apportionment of about 25% or $206,850 in favour of the second respondent would be appropriate.
REASONS
Dependency
It was confirmed in Warilla Timber and Hardware Pty Ltd v Newton[1], Albury Real Estate Pty Ltd v Rouseand anor[2] and in Richardson that the term “support” in s 25 of the 1987 Act is not limited to financial support, and encompasses other multifactorial aspects including assistance with day to day activities and emotional support.
[1] (1995) 11 NSWCCR 546, [554] to [555].
[2] [2006] NSWWCCPD 139, [45] to [50].
In TNT Group 4 Pty Limited v Halioris[3], McHugh JA stated:
“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.”[4]
[3] (1987) 3 NSWCCR 10; 8 NSWLR 486 (Halioris).
[4] Halioris, [489].
Further, in Kaur v Thales Underwater Systems Pty Ltd[5], President Keating stated:
“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;”[6]
and
“‘past events and future probabilities’ have to be considered. (Aafjes v Kearney 180
CLR 199; ster; 8 ALR 455; 50 ALJR 454, 456, 457 and 459 (Aafjes)).”[7]
[5] [2011] NSWCCPD 6 (Kaur).
[6] Kaur, [126].
[7] Kaur, [148].
The first respondent was in gainful employment, so I consider that she was partly dependent on the deceased. I am satisfied that the evidence shows that the second respondent was wholly dependent on the deceased from the time that he was conceived and born in January 2021, and he would have had an expectation of support in the future.
Further, I am satisfied there were no other persons wholly or partly dependent on the deceased 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[8], 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.”[9]
[8] (1996) 15 NSWCCR 32 (Wratten).
[9] Wratten, [34].
Each case requires an examination of the individual facts as no two matters are identical. Clearly the first respondent should be entitled to a greatest proportion of the lump sum, having regard to her dependency, her age, and future needs. This must be weighed up with the dependency of her son.
The second respondent was not born until seven months after his father’s death. In my view, he would have had an expectation of support from the deceased throughout his school years and perhaps until he turned 21 years old.
The first respondent estimates that her living expenses are approximately $50,000 per annum, excluding her mortgage repayments. I would have thought that she spends at least 20% of this amount on her son’s upkeep.
It is true that first respondent receives payments for the second respondent’s upkeep pursuant to s 25(1)(b) of the 1987 Act and these payments can continue until he turns 21 years of age. The current rate is $150.20 per week. However, such payments would hardly cover the cost of the second respondent’s care.
I consider that the second respondent would have had an expectation of support from the deceased in the order of $200 per week, or approximately $10,000 per year. Over a 21-year period, this amounts to $210,000. I consider that this is an appropriate proportion of the death benefit for the second respondent.
This amount only marginally differs from that referred to in the second respondent’s submissions. Nevertheless, I consider that they more appropriately reflect the respective expectations and entitlements of the parties.
Accordingly, I apportion the lump sum payment pursuant to s 29 of the 1987 Act as follows:
(a) $617,400 to Jessica Loh, and
(b) $210,000 to Etzio Vidal.
Costs
The applicant is liable to pay the respondents’ costs as agreed or assessed.
FINDINGS
The deceased worker, Aaron David Vidal, died on 18 June 2020 as a result of injuries sustained during the course of his employment with the applicant.
Jessica Loh was partly dependent for support upon the deceased at the date of death.
Etzio Vidal was wholly dependent for support upon the deceased from the time that he was conceived and born in January 2021.
The deceased had no other persons dependent on him.
The applicant is liable for the payment of lump sum compensation.
ORDERS
The lump sum compensation of $827,400 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) $617,400 to Jessica Loh, and
(b) $210,000 to Etzio Vidal.
The applicant is to pay lump sum compensation of $617,400 to Jessica Loh pursuant to s 85A(1)(a) of the 1987.
The applicant is to pay lump sum compensation of $210,000 to the New South Wales Trustee and Guardian to hold on trust pursuant to s 85(1)(c) of the 1987 Act until Etzio Vidal attains the age of 18 years.
The applicant is to pay the respondents’ costs as agreed or assessed.
0
1
0