Stephenson-Forge v Charman Earthmoving & Heavy Haulage Pty Ltd
[2021] NSWPIC 208
•24 June 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Stephenson-Forge v Charman Earthmoving & Heavy Haulage Pty Ltd [2021] NSWPIC 208 |
| APPLICANT: | Patricia Stephenson-Forge |
| RESPONDENT: | Charman Earthmoving & Heavy Haulage Pty Ltd |
| SENIOR MEMBER: | Glenn Capel |
| DATE OF DECISION: | 24 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Death claim; determination of dependency and payment of death benefit; TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd and Wratten v Kirkpatrick & Ors discussed and applied; Held- no other dependants; award for the applicant. |
| DETERMINATIONS MADE: | 1. The deceased worker, Craig Forge, died on 2 April 2020 as a result of injuries sustained during the course of his employment with the respondent. 2. Patricia Stephenson-Forge was partly dependent for support upon the deceased at the date of death. 3. The deceased had no other persons dependent on him. |
| ORDERS MADE | 4. The respondent to pay the applicant lump sum compensation of $827,400 pursuant to sections 25(1)(a) and 85A(1)(a) of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
The deceased worker, Craig Forge (the deceased), died on 2 April 2020 as a result of injuries sustained during the course of his employment with Charman Earthmoving & Heavy Haulage Pty Ltd (the respondent).
Liability was accepted by icare Workers Insurance (the insurer) pursuant to ss 25(a) and 26 of the Workers Compensation Act1987 (the 1987 Act) on 19 June 2020, subject to a determination of potential dependants.
Patricia Stephenson-Forge (the applicant) filed an Application in Respect of Death of Worker (the Application) that was registered in the Personal Injury Commission (the Commission) on 7 May 2021.
The applicant seeks the lump sum death benefit of $827,400 in accordance with s 25(1)(a) of the 1987 Act together with an order authorising payment of the lump sum to her pursuant to
s 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.
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, and(b) orders in relation to payment of the compensation – s 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;
(b) Reply with attachments, and
(c) Application to Admit Late Documents received on 25 May 2021.
Oral evidence
Neither party sought leave to adduce oral evidence or cross examine any witnesses.
REVIEW OF EVIDENCE
Applicant’s statement
The applicant provided statements on 22 May 2020 and 13 April 2021, and a statutory declaration on 27 May 2020. She confirmed that she met the deceased in 1990 and they married on 8 January 1994. She already had a daughter from prior relationship, Kodie Kelleher, and the deceased had a daughter, Sophie Pekin. Their son, Jesse Forge, was born in 1997.
The applicant stated that the deceased had not spoken to Sophie for approximately 10 years because she had requested not to be contacted. Kodie has three children ranging in age from 10 years to 17 years old.
When Kodie’s relationship broke down, they assisted her more frequently by fixing her car, providing gardening and domestic assistance, paying for her children's school fees, providing her with emotional support and minding the grandchildren.
The applicant stated that she understood that Sophie was not a dependant and that she did not intend to make a claim on the death benefit. Similarly, Kodie and Jesse, who is employed by the Australian Federal Police, do not wish to make a claim on the death benefit.
The applicant stated that prior to his death, the deceased did not provide any assistance to his mother, Edith Gladstone, or his two sisters, who resided in Victoria. In the last six months, his mother had been diagnosed with Alzheimer's disease. The applicant understood that Ms Gladstone had provided a statutory declaration prior to her diagnosis to the effect that she did not want to make any claim for the death benefit.
The applicant indicated that she was employed on a fulltime basis by the Australian Federal Police earning $86,000 per annum. At the time of her husband’s death, she was dependant on his income. Their money was jointly used to pay for expenses relating to the home, cars and utilities, whist she paid for residential home payments, dental and medical expenses. They did not have joint bank accounts, but she was a signatory on her husband’s account.
The applicant stated that the deceased was responsible for garden and household maintenance. They had purchased a caravan to travel around Australia and had intended to purchase land near the water because her late husband enjoyed fishing, riding horses, farming and working on cars. His loss had significantly affected her.
The applicant stated that she inherited the deceased’s estate following a Grant of Letters of Administration. She confirmed that there were no other persons dependent on her late husband.
Statutory Declarations
Statutory declarations have been provided by Kodie Kelleher, Sophie Pekin and Jesse Forge on 27 May 2020, by Natalie Pekin (the deceased’s former partner) on 29 May 2020, by Sharon Forge (the deceased’s sister) on 2 June 2020, and by Edith Gladstone on 3 June 2020. The deceased’s sister, Tracey Forge, provided an unsigned statutory declaration.
They each advised that they were aware that they could be a potential claimant, but they did not wish to make a claim.
Documents
The applicant has included copies of the deceased’s birth, marriage and death certificates, the Grant of Letters of Administration and other documents that are consistent with the applicant’s statement.
The respondent relies on a factual material, but this is not relevant to the matters that I need to determine.
SUBMISSIONS
Brief oral submissions were made by the applicant’s solicitor at the telephone conference. Given the non-contentious nature of the matter, I am satisfied that the parties have given full consideration to their respective rights and entitlements, if any.
REASONS
Dependency
In TNT Group 4 Pty Limited v Halioris (1987) 3 NSWCCR 10; 8 NSWLR 486, McHugh JA stated (at 489):
“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.”
Further, in Kaur v Thales Underwater Systems Pty Ltd [2011] NSWCCPD 6 (at [126] and [148]), President Keating stated (at [126]):
“126. 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; ‘past events and future probabilities’ have to be considered. (Aafjes v Kearney 180 CLR 199; [1976] HCA 5; 8 ALR 455; 50 ALJR 454, 456, 457 and 459 (Aafjes)).”
According to the applicant, she was dependent on the deceased for financial and other support. The deceased contributed to the cost of household and other expenses, and he maintained the house and property. She was in fulltime employment, so in the circumstances, I am satisfied that the applicant was at least partly dependent on the deceased at the date of death.
Given the contents of the statutory declarations provided by the potential dependants, whilst they do not indicate that they received legal advice, it is clear that they do not wish to make a claim.
In the circumstances, I am satisfied that there were no other persons wholly or partly dependent on the deceased at the date of death, so the lump sum death benefit of $827,400 payable pursuant to s 25(1)(a) of the 1987 Act will be paid to the applicant pursuant to s 85A(1)(a) of the 1987 Act.
FINDINGS
The deceased worker, Craig Forge, died on 2 April 2020 as a result of injuries sustained during the course of his employment with the respondent.
Patricia Stephenson-Forge was partly dependent for support upon the deceased at the date of death.
The deceased had no other persons dependent on him.
ORDERS
30. The respondent to pay the applicant lump sum compensation of $827,400 pursuant to ss 25(1)(a) and 85A(1)(a) of the 1987 Act.
0
0
0