Studdert v State of New South Wales (Ambulance Service of NSW)
[2022] NSWPIC 242
•25 May 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Studdert v State of New South Wales (Ambulance Service of NSW) & Ors [2022] NSWPIC 242 |
| APPLICANT: | Carley Studdert |
FIRST RESPONDENT: | State of New South Wales (Ambulance Service of NSW) |
| SECOND RESPONDENT: | Jennifer Ann Jackson |
| PRINCIPAL MEMBER: | Josephine Bamber |
| DATE OF DECISION: | 25 May 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Apportionment of lump sum death benefit pursuant to section 25 Workers Compensation Act 1987. |
| DETERMINATIONS MADE: | 1. That the deceased worker, Paul Michael Alexander, died approximately on 30 October 2020 from injuries sustained on 3 December 2018 in the course of his employment with the State of New South Wales. 2. That the compensation payable by the employer, State of New South Wales, in accordance with section 25(1)(a) of the Workers Compensation Act 1987 on the death of the deceased is $834,200. 3. That Carley Studdert, his daughter, and Jennifer Ann Jackson, his former de facto, were dependent for support upon the deceased worker at the date of his death. 4. That there were no other persons dependent for support upon the deceased worker at the date of his death. 5. Pursuant to section 29 of the Workers Compensation Act 1987 the apportionment of payments between the dependents is as follows: a. Carley Studdert $417,100, and b. Jennifer Ann Jackson $417,100. 6. That the first respondent is to pay to Carley Studdert the sum of $417,100. 7. That the first respondent is to pay to Jennifer Ann Jackson the sum of $417,100. 8. The first respondent is to pay the costs as agreed or assessed of the applicant and the second respondent. 9. That all parties are to have an uplift on the costs that otherwise would be payable to them of 10% for complexity, noting the considerable amount of material obtained and considered by all parties. |
STATEMENT OF REASONS
BACKGROUND
Mr Paul Michael Alexander was employed by the applicant, State of New South Wales (first respondent), as a paramedic with NSW Ambulance Service. He sustained an injury to his right shoulder on 3 December 2018 and thereafter developed a psychological condition which involved an alcohol abuse disorder. On or about 30 October 2020 he died in circumstances that the first respondent accepts were as a result of his workplace injury.
As the first respondent has admitted liability for compensation flowing from Mr Alexander’s death it is not necessary for the details of his injury and death to be summarised in these reasons. The Application in Respect of the Death of a Worker (the Application) attaches a number of documents detailing the same.
Funeral expenses have been paid by the first respondent to Carley Studdert (the applicant) in the sum of $9,049.
In the Application which has been filed by Ms Studdert orders are sought in relation to the apportionment of the lump sum provided by section 25 of the Workers Compensation Act 1987 (the 1987 Act), being $834,200. Ms Studdert is the daughter of the deceased and the legal personal representative of the deceased’s estate.
Jennifer Ann Jackson (the second respondent) is the former de facto of the deceased and she has filed a reply, as has the employer. They also seek for the Personal Injury Commission (the Commission) to apportion the lump sum death benefit.
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. They have come to an agreement in relation to the proposed apportionment.
A direction was made at the telephone conference for an application to admit late documents to be filed attaching a statutory declaration from the applicant’s solicitor relating to Heather Jose and Karen Means not seeking to make a claim of dependency in relation to the death of Paul Michael Alexander. That is now before the Commission.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) the Application;
(b) first respondent’s Reply;
(c) second respondent’s Reply;
(d) correspondence to the Commission dated 23 February 2022, and
(e) Application to Admit Late Documents dated 25 March 2022.
There was no oral evidence.
FINDINGS AND REASONS
Having considered all of the material in evidence, I accept that both Carley Studdert and Jennifer Ann Jackson were both partially dependent on the deceased for support at the date of his death.
The Application states a 50% apportionment is sought by each dependent. I consider, and find, that the proposed apportionment is in the range of a sound apportionment of the lump sum and I make orders accordingly.
I am also satisfied from the entirety of the evidence that there are no other persons who were dependent on the deceased for support at the time of his death. I note the contents of the statutory declaration of David Ian Jones sworn on 22 March 2022 in relation to the advices he received from Karen Means and Heather Jose, former partners of the deceased confirming they did not wish to make a claim for compensation on the basis of dependency.
The parties advised me at the telephone conference that the applicant and second respondent did not make a claim for interest.
As the deceased was employed as a paramedic the claim is an exempt one pursuant to Schedule 6, Part 19I, clause 14 (2) of the 1987 Act and accordingly the Commission has the jurisdiction to make a costs order in this matter.
The first respondent has agreed to pay the costs as agreed or assessed of the applicant and the second respondent.
The applicant and the second respondent jointly made an oral application at the telephone conference for an uplift on their costs due to complexity. The first respondent made no submissions. It was submitted that the applicant had to obtain a considerable amount of documentation that ultimately led to the first respondent admitting liability, in addition steps have been taken to contact potential dependents and ascertain their position.
Having heard these submissions I accept the preparatory work undertaken has contributed to liability being admitted and this has resulted in considerable savings of costs and time to the parties and the Commission. I consider that an uplift of 10% on the costs otherwise payable to the parties is justified and that all parties should receive this uplift because the other parties had to consider this material.
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