Thompson v Nationwide News Pty Limited
[2022] NSWPIC 661
•30 November 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Thompson v Nationwide News Pty Limited [2022] NSWPIC 661 |
| APPLICANT: | Simone Thompson |
RESPONDENT: | Nationwide News Pty Limited |
| principal Member: | Josephine Bamber |
| DATE OF DECISION: | 30 November 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Death of worker; orders previously made in relation to payment of lump sum pursuant to section 25 of Workers Compensation Act 1987;disputed claim for interest by the applicant who is the deceased’s widow and sole dependent; Held – pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998 the respondent is to pay the applicant interest on the lump sum of $834,200 at the rate of 2.2 per cent per annum for the period from 20 June 2022 to 30 September 2022. |
| determinations made: | Commission determines: 1. Pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 the respondent is to pay the applicant interest on the lump sum of $834,200 at the rate of 2.2% p.a. for the period from 20 June 2022 to 30 September 2022. |
STATEMENT OF REASONS
BACKGROUND
Peter John Thompson, the deceased, died in the course of his employment with the respondent, Nationwide News Pty Limited on 25 March 2021. As the respondent has admitted liability for compensation flowing from Mr Thompson’s death it is not necessary for the details of his injury and death to be summarised in these reasons.
In the Application in Respect of the Death of a Worker (the Application) orders were sought in relation to the payment of the lump sum provided by s 25 of the Workers Compensation Act 1987 (the 1987 Act).
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)
A preliminary conference was held before me on 30 September 2022. The applicant was represented by Mr Tim Abbott, solicitor. The respondent was represented by Mr Stephen Harris, solicitor, instructed by Ms Leigh Osnabrugge from the insurer.
The parties agreed for the payment of the lump sum to the applicant, and I issued a Certificate of Determination-Consent Orders on 30 September 2022 making the necessary orders.
At the preliminary conference Mr Abbott made a claim for interest and Mr Harris sought that the parties provide written submissions in relation to this aspect of the matter.
The submissions have been received by the Commission and I am satisfied that I have sufficient information to determine the matter “on the papers”.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) the Application;
(b) the respondent’s Reply;
(c) submissions filed on behalf of the applicant dated 12 October 2022;
(d) submissions filed on behalf of the respondent dated 24 October 2022, and
(e) applicant’s submissions in reply dated 27 October 2022.
FINDINGS AND REASONS
Section 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(1) In any proceedings before the Commission, the Commission may order that there is to be included, in any sum to be paid, interest at such rate as the Commission thinks fit on the whole or any part of the sum for the whole or any part of the period before the sum is payable, subject to the limitations imposed by this section.
(2) Interest cannot be ordered under this section--
(a) on any compensation payable under Division 4 of Part 3 of the 1987 Act, or
(b) on any compensation payable under this Act for any period before a claim for the compensation was duly made, or
(c) on any compensation payable under this Act for any period during which proceedings before the Commission were adjourned on the application of the claimant for the compensation or pursuant to section 102.
(3) This section does not--
(a) authorise the giving of interest upon interest, or
(b) apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise.”
Determination
The decision whether to order interest is discretionary.
The applicant’s submission is that the respondent had the benefit of the funds from the date of the compensation claim and so argues that an order for interest should be made in her favour. She refers to decision of Arbitrator Sweeney (as he was then) in Noni Myra Beves v Patrick Stevedores No 2 Pty Ltd[1]:
“Nevertheless, the insurer has had the compensation monies throughout this period and presumably invested it to its advantage. To paraphrase Bennett v Jones (1987) 2NSWLR 355, interest is not to be awarded simply on the basis that the respondent ought to have paid the money earlier, but the more neutral basis ‘the money has been outstanding for a period during which the defendant has had the benefit of not paying it, and the plaintiff the detriment of not having it”.
[1] [2014] NSWWCC178.
The respondent submits that no interest should be ordered because it argues that the applicant has not suffered “any financial disadvantage” by reason of the delay in the payment of the s 25(1)(a) lump sum and, in fact, has “enjoyed a financial advantage”. The respondent wrote to the applicant’s solicitors on 27 June 2022 enquiring whether the lump sum should be paid to the NSW Trustee & Guardian. Not surprisingly, on 28 June 2022 the applicant’s solicitors requested the payment not be made to NSW Trustee & Guardian and that they would apply under s 85A of the 1987 Act for an order from the Commission that payment be made direct to the applicant.
The insurer submits it was not legally possible for the insurer to have paid the lump sum to the applicant until the Commission had made the order under s 85A. However, this submission glosses over the plain fact that the insurer had the benefit of the money in the interim, and the applicant did not.
The respondent seeks to rely on the fact that that the applicant rejected the option of paying the money to the NSW Trustee & Guardian. To my mind this is an extraordinary argument for a respondent to make. The respondent further argues that even if the lump sum had been paid immediately to the NSW Trustee & Guardian, no payment would have been made to the applicant until the determination by the Commission. To my mind this illustrates, in this case, that it would have been inefficient for the insurer to pay the lump sum to the NSW Trustee & Guardian because that would have only resulted in delay, and further costs, necessitating the applicant to make an application to the Commission for payment from the NSW Trustee & Guardian.
It needs to be borne in mind that this matter was a straightforward case of death of a worker leaving a dependent spouse and no other person asserted dependency.
In Haidary v Wandella Pet Foods Pty Ltd[2], Deputy President Fleming discussed the reasoning behind an award of interest and the relevant interest rate. She said:
“The award of interest by the Commission, pursuant to section 109 of the 1998 Act is discretionary. Mr Haidary will only be entitled to interest, if awarded, on those amounts of his weekly entitlement that were unpaid, and only from the date that his claim ‘was duly made’. The likely amount of interest that would be due on these sums is small, relative to the whole of his claim, but nonetheless they may form part of Mr Haidary’s entitlement. The purpose of ordering interest on an award is to compensate the worker for the loss of his or her income, not to penalise the employer (Virag v James N Kirby t/as Betts Electric Motors (1990) 6 NSWCCR; Healey v McPherson Binding Pty Ltd (1989) 5 NSWCCR 139).”
[2] [2005] NSWWCCPD 9, Haidary.
Applying Haidary and Beves to Ms Thompson’s case, it follows that ordering the respondent to pay interest should not be viewed as penalising the insurer. The respondent has provided submissions dated 24 October 2022 in which it refers to the Court of Appeal cases of Pheeneyv Doolan[3] and Bennett v Jones & Anor[4] and the insurer at [8] in its submissions asserts that the Court held it was necessary to determine in what respect the plaintiff had been financially disadvantaged by the delay in the payment of the money. However, the passages cited in the submissions do not conclude that. In both cases the Court refers to the fact that money has been outstanding to the plaintiff for a period during which the defendant has had the benefit of not paying the money.
[3] [1977] 1 NSWLR 601, Pheeney.
[4] [1977] 2 NSWLR 355, Bennett.
To my mind it matters not that the respondent did not pay the money to the NSW Trustee & Guardian at the applicant’s solicitor’s request. As I have said, for the respondent to take such a course of action would not be efficient as it would involve the applicant’s solicitors, in any event, having to seek orders from the Commission. This fact is acknowledged at [13] of the insurer’s submission.
The respondent further argues had it paid the money to the NSW Trustee & Guardian the applicant would have suffered a loss as the Trustee would have taken its fees from that sum and the resultant delay would have been to the applicant’s financial detriment. I find it is extraordinary for the respondent to argue at [16] that the applicant has in fact received a financial advantage as a result of the sum not having been paid until the Commission issued the Certificate of Determination. To my mind, this argument is misconceived because it seems to derive from some notion that the payment of interest is punishing the insurer. I have stated this is not the case, but the simple fact is the insurer has had the benefit of the sum.
The respondent quotes various other cases in its submissions however, obviously, each case turns on its own particular facts.
In this matter I exercise my discretion to order interest for the above reasons.
Period of interest
The applicant seeks interest from 10 June 2022, the date that the insurer accepted liability for the claim. The applicant says she does not make a claim for interest from the date of the claim for compensation on 11 May 2021, but instead claims from the date that the respondent accepted liability for the claim, noting that there were difficult issues for the respondent to consider as to liability. At [8] in her submissions dated 12 October 2022 she seeks an order “to the date the payment was made”. The respondent, in its submissions, states that the payment of the death benefit was made to the applicant on 5 October 2022. However, s 109(1) provides that interest can be ordered “for the whole or any part of the period before the sum is payable” (my emphasis). This means, in this case, interest can only be ordered under s 109 up to 30 September 2022, being the date the sum was payable.
The insurer at [25 (l)] of its submissions argues that the claim was not “duly made” until 24 August 2022 when the application annexing evidence in relation to dependency was registered. The respondent cites many cases applying Kaur v Thales Underwater Systems Pty Ltd[5]. I do not need to refer to each of these cases. I accept the principle that interest should not be ordered for any period before the claim was duly made, obviously that will vary in each case depending on the facts in each case. In Ms Thompson’s case on 20 June 2022 her solicitor forwarded to the insurer various documents including the statutory declaration of Ms Thompson in which she attested to the fact that at the time of her husband’s death she was not working and was in receipt of Centrelink payments and her two children were aged 44 and 45 and they were not dependent on the deceased at the time of his death. I consider at this point her claim was “duly made”. She also attached an EFT form and other documents.
[5] [2011] NSWWCCPD 6, Kaur.
The response from the respondent’s solicitors dated 27 June 2022 asked for particulars of the deceased’s children including their dates of birth. However, the applicant’s solicitor’s letter dated 20 June 2022 had attached their birth certificates. The respondent required the children to file statutory declarations to confirm they were not seeking to make a claim for dependency. These statutory declarations were provided in the Application that was filed with the Commission. However, they confirmed what Ms Thompson had declared, that they were not dependent. Therefore, I find her claim was duly made on 20 June 2022 and the fact that other confirmatory evidence, which was supplied at the respondent’s request, was provided later, in my view, does not alter the fact that Ms Thompson’s claim was duly made on 20 June 2020.
Accordingly, I in the exercise of my discretion I find that the appropriate period in relation to an order for interest is from 20 June 2022 to 30 September 2022.
Interest rate
The applicant claims interest at the rate of 2.2% and the respondent agrees with this rate, however its primary submission is that the Commission should not exercise it discretion to make an award of interest.
For these reasons, I propose to allow interest from 20 June 2022 to 30 September 2022 at the rate of 2.2% in relation to the lump sum of $834,200.
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