Stoneman v Margifox Pty Ltd

[2022] NSWPIC 367

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Stoneman v Margifox Pty Ltd [2022] NSWPIC 367

APPLICANT:

Liliane Stoneman

FIRST RESPONDENT:

Margifox Pty Ltd

SECOND RESPONDENT:

Blair Henderson

SENIOR MEMBER:

Elizabeth Beilby

DATE OF DECISION:

7 July 2022

CATCHWORDS:

WORKERS COMPENSATION - Apportionment of lump sum death benefit; Held – the applicant and the second respondent were dependent for support upon the deceased at the date of her death on 14 March 2019; the lump sum benefit payable in accordance with section 25(1)(a) of the Workers Compensation Act 1987 (1987 Act) as of the date of death was $798,100; the lump sum of $798,100 is to be paid directly, in equal shares, to the applicant and second respondent pursuant to section 85A of the 1987 Act; there are no other relevant persons who could be or want to be classed as partially or wholly dependent upon the deceased as at the date of death; interest is to paid on the lump sum benefit at the rate of 2.25% pa from 27 January 2022.

DETERMINATIONS MADE:

1.     I find that the applicant and the second respondent were dependent for support upon the deceased, Kathryn Henderson, at the date of her death on 14 March 2019.

2. The lump sum benefit payable in accordance with s 25(1)(a) of the Workers Compensation Act 1987 as of the date of death was $798,100.

3. The lump sum of $798,100 is to be paid directly, in equal shares, to the applicant and second respondent pursuant to s 85A of the Workers Compensation Act 1987.

4.     There are no other relevant persons who could be or want to be classed as partially or wholly dependant upon the deceased as at the date of death.

5.   Interest is to paid on the lump sum benefit at the rate of 2.25% pa from 27 January 2022.

STATEMENT OF REASONS

BACKGROUND

1. Ms Kathryn Henderson (the deceased) died on 14 March 2018. Margifox Pty Ltd (the first respondent) 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).

2. The only substantive issue for determination is the question of dependency and apportionment of the death benefit to the respective parties.

ISSUES FOR DETERMINATION

1. The parties agree that the following issues remain in dispute:

   (a)    dependency at the time of death, and

   (b)    apportionment of the lump sum death benefit.

EVIDENCE

Documentary evidence

1. The following documents were in evidence before the Personal Injury Commission (the Commission) and taken into account in making this determination:

   (a)    Application to Resolve a Dispute and attached documents;

   (b)    Replies dated 16 May 2022 and 19 May 2022, and

   (c)    Applications to Admit Late Documents dated 9 May 2022, 26 May 2022 and 15 June 2022.

Dependency

1. A dependent 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”.

2. A reasonable expectation that the deceased would provide future support can satisfy the concept of dependency.[1]

   [1] TNT Group 4 Pty Ltd v Halioris (1987) 8 NSWLR 486 at [490].

3. Liliane Stoneman and Blair Henderson are both the adult children of the deceased. There are no other children of the deceased. They have provided evidence of both their actual and anticipated dependency upon the deceased in statements contained in the filed documentation.

4. They have both indicated that they wish to share the lump sum benefit in equal shares.  There is no reason that this is not appropriate in the circumstances.

5. There is no evidence before me of any other person who was partially or fully dependent upon the deceased and wishes to make a relevant claim. This includes Patricia Sneddon, Mr Michael Pamphilon, Mr Norman Fischer and Mr Jeremey Henderson.

6. I direct that the lump sum benefit should be paid directly to the applicant and second respondent as in equal shares.

7. I understand that agreement has also been reached in respect of any entitlement to interest. The agreement is that interest is to paid on the lump sum benefit at the rate of 2.25% pa from 27 January 2022.