Toleafoa v R Polites Transport Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Toleafoa v R Polites Transport Pty Ltd & Ors [2024] NSWPIC 251
APPLICANT:	Seu Toleafoa
FIRST RESPONDENT:	R Polites Transport Pty Limited
SECOND RESPONDENT:	Silia Toleafoa
THIRD RESPONDENT:	Tausala Toleafoa by her tutor Comfort Anosike
FOURTH RESPONDENT:	Aaron Toleafoa by his tutor Maria Leauanae
FIFTH RESPONDENT:	Fetalai Toleafoa by her tutor Fiti Tuiatua
MEMBER:	Gaius Whiffin
DATE OF DECISION:	14 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for benefits in respect of the death of a worker; apportionment of lump sum payable under section 25(1)(a); consideration of statements and statutory declarations, claim correspondence, and factual material; consideration of who was dependent for support on the worker at the date of his death; TNT Group 4 Pty Limited v Halioris considered; consideration of appropriateness of apportionment agreed between the parties; Held – no other persons but the applicant, the second respondent, the third respondent, the fourth respondent, and the fifth respondent were dependent for support on the worker at the date of his death; the apportionment of the lump sum under section 25(1)(a) as agreed between the parties is approved; awards entered accordingly in favour of the applicant, the second respondent, the third respondent, the fourth respondent and the fifth respondent (including agreed amounts for fund management fees in relation to the third respondent and the fourth respondent, in accordance with section 25(1A)); awards also entered with the agreement of the parties in relation to the worker’s funeral expenses pursuant to section 26, and in relation to any claims for interest; the claims for weekly compensation payable to the second respondent, the third respondent, and the fourth respondent pursuant to section 25(1)(b), are discontinued with notations being made.
DETERMINATIONS MADE:	The Commission determines: 1. That Kalati Rex Toleafoa (the worker) died on 12 October 2021 as a result of injury sustained in the course of his employment with the first respondent, pursuant to ss 4(a) and 9A of the Workers Compensation Act 1987 (the 1987 Act). 2. That the applicant was dependent on the worker for support within the meaning of s 25(1)(a) of the 1987 Act as at 12 October 2021. 3. That the second respondent was dependent on the worker for support within the meaning of s 25(1)(a) of the 1987 Act as at 12 October 2021. 4. That the third respondent was dependent on the worker for support within the meaning of s 25(1)(a) of the 1987 Act as at 12 October 2021. 5. That the fourth respondent was dependent on the worker for support within the meaning of s 25(1)(a) of the 1987 Act as at 12 October 2021. 6. That the fifth respondent was dependent on the worker for support within the meaning of s 25(1)(a) of the 1987 Act as at 12 October 2021. 7. That there were no other persons dependent on the worker for support within the meaning of s 25(1)(a) of the 1987 Act as at 12 October 2021. 8. That the first respondent is liable to pay the amount of $849,300 pursuant to s 25(1)(a) of the 1987 Act. 9. That the amount of $849,300 is to be apportioned as follows, pursuant to s 29 of the 1987 Act: (a) applicant – 72% - $611,496; (b) second respondent – 6% - $50,958; (c) third respondent - 9% - $76,437; (d) fourth respondent – 12% - $101,916, and (e) fifth respondent – 1% - $8,493. The Commission orders: 10. Pursuant to ss 25(1)(a), 29(1) and 85A of the 1987 Act, the first respondent is to pay the applicant the amount of $611,496. 11. Pursuant to ss 25(1)(a), 29(1) and 85A of the 1987 Act, the first respondent is to pay the second respondent the amount of $50,958. 12. Pursuant to ss 25(1)(a), 29(1) and 85 of the 1987 Act, the first respondent is to pay the NSW Trustee and Guardian the amount of $76,437 to be held on trust for the third respondent until she attains the age of 18 years. 13. Pursuant to ss 25(1)(a), 29(1) and 85 of the 1987 Act, the first respondent is to pay the NSW Trustee and Guardian the amount of $101,916 to be held on trust for the fourth respondent until he attains the age of 18 years. 14. Pursuant to ss 25(1)(a), 29(1) and 85 of the 1987 Act, the first respondent is to pay the NSW Trustee and Guardian the amount of $8,493 to be held on trust for the benefit of the fifth respondent pursuant to s 85(2) of the 1987 Act. 15. The first respondent is to pay, pursuant to s 25(1A) of the 1987 Act, the following amounts in relation to fees concerning investing or otherwise managing the amounts referred to at orders 12 and 13 above: (a) in relation to the third respondent – $11,703.87, and (b) in relation to the fourth respondent – $17,263.13. 16. The first respondent is to pay funeral expenses up to a maximum amount of $15,000, to the applicant pursuant to s 26 of the 1987 Act, upon production of receipts confirming payment of those expenses by the applicant. 17. There will be an award for the first respondent with respect to any claims for interest by the applicant, by the second respondent, by the third respondent, by the fourth respondent, or by the fifth respondent. 18. The claims for weekly compensation by the second respondent, by the third respondent, and by the fourth respondent, pursuant to s 25(1)(b) of the 1987 Act, are discontinued. The Commission notes: 19. The first respondent agrees to pay weekly compensation at the relevant gazetted rates in respect of the third respondent and the fourth respondent from 12 October 2021 to date and on a continuing basis, pursuant to s 25(1)(b) of the 1987 Act, with such payments to be made to the applicant. 20. The first respondent agrees to pay weekly compensation at the relevant gazetted rates in respect of the second respondent from 12 October 2021 to 2 November 2023, pursuant to s 25(1)(b) of the 1987 Act, with such payments to be made to the applicant - the weekly compensation in this regard will continue beyond 2 November 2023 at the relevant gazetted rates only upon production of documentation confirming the second respondent’s status as a student as defined in s 25(5) of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

Kalati Rex Toleafoa (the worker) died on 12 October 2021 allegedly as a result of injuries which he received on that date in the course of his employment with R Polites Transport Pty Limited (the first respondent) as a concrete truck driver. It is alleged that he went into cardiac arrest while he was driving his truck on Church Street, Parramatta, and could not be resuscitated.
He was 43-years-old at the time of his death, and he lived with his wife and their three children at their home in Mount Prichard.
His wife (currently 39-years-of-age), Seu Toleafoa, is the applicant. His eldest (currently 18-years-of-age) daughter, Silia Toleafoa, is the second respondent. His youngest (currently 13-years-of-age) daughter, Tausala Toleafoa, is the third respondent. She is represented by a tutor, Comfort Anosike (who is her cousin and the worker’s niece). His son (currently 12-years-of-age), Aaron Toleafoa, is the fourth respondent. He is represented by a tutor, Maria Leauanae (who is his cousin and the worker’s niece). His mother (currently 86-years-of-age), Fetalai Toleafoa, is the fifth respondent. She is represented by a tutor, Fiti Tuiatua (who is her daughter and the worker’s sister).
The first respondent initially denied liability for compensation flowing from the worker’s death, pursuant to Part 3 Division 1 of the Workers Compensation Act 1987 (the 1987 Act). It issued a notice in this regard on 16 November 2022, pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
By way of an Application in Respect of Death of Worker (ARDW) lodged with the Personal Injury Commission (Commission) on 12 October 2023, the applicant seeks orders that a lump sum pursuant to s 25(1)(a) of the 1987 Act in the amount of $849,300 be paid by the first respondent (as apportioned between her, the second respondent, the third respondent, and the fourth respondent), and that the worker’s funeral expenses be paid pursuant to s 26 of the 1987 Act. By way of a direction dated 18 December 2023, I also granted leave for claims by the second respondent, the third respondent, and the fourth respondent for weekly compensation pursuant to s 25(1)(b) of the 1987 Act, to be made in the Commission proceedings.
By way of a further direction dated 1 March 2024, I joined the fifth respondent to the Commission proceedings (pursuant to cl 62(1) of the Personal Injury Commission Rules 2021) due to her potential dependency on the worker for support as at 12 October 2021.
By way of a final direction dated 5 April 2024, I formalised the appointment of the tutors, as indicated at paragraph 3 above.

ISSUES FOR DETERMINATION

The parties eventually agreed that the only issues requiring determination by the Commission were:
(a) Who was dependent for support on the worker at the date of his death?

(b) How should the amount of $849,300 be apportioned between those dependants, pursuant to s 29(1) of the 1987 Act?

PROCEDURE BEFORE THE COMMISSION

The ARDW proceeded to a conciliation/arbitration before the Commission on 10 May 2024. On that occasion, the applicant was represented by Mr Josh Beran of counsel, instructed by Mr Covic. The first respondent was represented by Mr Mickleburgh, solicitor. The second respondent was represented by Ms Sarah Warren of counsel, instructed by Ms Jaglic. The third respondent was represented by Ms Lyn Goodman of counsel, instructed by Ms Parisis. The fourth respondent was represented by Mr Phillip Perry of counsel, instructed by
Ms Comans. The fifth respondent was represented by Mr Paul Stockley of counsel, instructed by Mr Taylor. The applicant was present, as well as the second respondent, the third respondent, the fourth respondent, and the tutors representing the third respondent, the fourth respondent and the fifth respondent.
Prior to the commencement of any arbitration hearing, the parties advised me that they had resolved the disputes in the Commission proceedings, subject to my determination regarding the issues referred to at paragraph 8 above.
The first respondent had agreed to awards that it pay the amount of $849,300 in accordance with s 25(1)(a) of the 1987 Act, and that it pay the worker’s funeral expenses up to $15,000 in accordance with s 26 of the 1987 Act. The claims by the second respondent, the third respondent, and the fourth respondent for weekly compensation pursuant to s 25(1)(b) of the 1987 Act were to be discontinued, with notations to be made by me regarding those claims in the following terms:
(a) the first respondent agrees to pay weekly compensation at the relevant gazetted rates in respect of the third respondent and the fourth respondent from
12 October 2021 to date and on a continuing basis, pursuant to s 25(1)(b) of the 1987 Act, with such payments to be made to the applicant, and
(b) the first respondent agrees to pay weekly compensation at the relevant gazetted rates in respect of the second respondent from 12 October 2021 to
2 November 2023, pursuant to s 25(1)(b) of the 1987 Act, with such payments to be made to the applicant - the weekly compensation in this regard will continue beyond 2 November 2023 at the relevant gazetted rates only upon production of documentation confirming the second respondent’s status as a student as defined in s 25(5) of the 1987 Act.
The parties had also agreed that there would be an award in favour of the first respondent in respect to any claims by any party for interest pursuant to s 109 of the 1998 Act.
The applicant, the second respondent, the third respondent, the fourth respondent and the fifth respondent then advised me that, subject to my approval, they had agreed on the apportionment of the lump sum payable pursuant to s 25(1)(a) of the 1987 Act between themselves, as follows:
(a)     applicant – 72% - $611,496;
(b)     second respondent – 6% - $50,958;
(c)     third respondent - 9% - $76,437;
(d)     fourth respondent – 12% - $101,916, and
(e)     fifth respondent – 1% - $8,493.
Due to the age of the third and fourth respondents, there was no dispute that the first respondent would be required to pay funds management fees in relation to any amounts awarded to them pursuant to s 25(1)(a) of the 1987 Act, in accordance with s 25(1A) of the 1987 Act. The parties agreed that should I find the above agreed apportionment to be appropriate, the amounts to be awarded pursuant to s 25(1A) would be calculated as:
(a) in relation to the third respondent – $11,703.87, and
(b) in relation to the fourth respondent – $17,263.13.
The sole issues (see paragraph 8 above) requiring determination by me were then agreed upon. In order to assist me with these determinations, some oral evidence was led from Fiti Tuiatua at the conciliation/arbitration.
I am grateful to the parties for their assistance in the Commission proceedings, and in their provision of evidence. I am also grateful to them for the courteous and respectful manner in which they have conducted themselves in the proceedings.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the ARDW and its attached documents - including the worker’s death certificate, the worker’s and the applicant’s marriage certificate, the second respondent’s birth certificate, the third respondent’s birth certificate, the fourth respondent’s birth certificate, a statement from the applicant dated 8 December 2022, a statement from the applicant dated 25 September 2023, and a statement from Fiti Tuiatua dated 16 December 2022;
(b)    the applicant’s Application to Admit Late Documents dated 27 March 2024 (applicant’s AALD) and its attached documents - including statutory declarations or statements from Auvaa Simeti, Fiti Tuiatua, Tausala Lagaaia, Tilomai Kalati, Taafale Kalati, Leinati Lokeni, Lepotusa Kalati, Faavaeolemalo Kalati, and Josephine Mose;
(c)    the first respondent’s Reply (first Reply) and its attached documents;
(d)    the second respondent’s Reply (second Reply) and its attached documents - including a statement from the second respondent dated 2 November 2023;
(e)    the second respondent’s Application to Admit Late Documents dated 8 May 2024 (second respondent’s AALD) and its attached documents - including a statement from the second respondent dated 7 May 2024;
(f)    the third respondent’s Reply (third Reply) and its attached documents - including a statement from Comfort Anosike dated 1 November 2023;
(g)    the fourth respondent’s Reply (fourth Reply) and its attached documents;
(h)    the fourth respondent’s Application to Admit Late Documents dated 3 April 2024 (fourth respondent’s AALD) and its attached documents - including a statement from Maria Leauanae dated 3 April 2024;
(i)    the fifth respondent’s Reply (fifth Reply) and its attached documents - attached to her Application to Admit Late Documents dated 28 March 2024 - including a statement from Fiti Tuiatua dated 28 March 2024, and
(j)    the fifth respondent’s Application to Admit Late Documents dated 6 May 2024 (fifth respondent’s AALD) and attached documents - including a report from the fifth respondent’s geriatrician, Dr Joseph, dated 26 July 2023.

Oral evidence

As noted, Fiti Tuiatua gave brief oral evidence on 10 May 2024. She was questioned by me. No party wished to ask her any questions, despite being given the opportunity to do so.
She confirmed that she was the worker’s sister, and she had known him all his life. She was very close to him. She knew his familial situation well.
To the best of her knowledge, the worker’s only children were the second respondent, the third respondent, and the fourth respondent. To the best of her knowledge, prior to the worker’s marriage to the applicant, he had only been previously married once to Josephine Mose. There were no children from that previous marriage.
She confirmed that the grandparents of herself and the worker were deceased, as was their father. Their mother was the fifth respondent. She also confirmed that the worker had eight siblings, being:
(a)    herself;
(b)    Auvaa Simeti;
(c)    Tausala Lagaaia;
(d)    Tilomai Kalati;
(e)    Taafale Kalati;
(f)    Leinati Lokeni;
(g)    Lepotusa Kalati, and
(h)    Faavaeolemalo Kalati.
She finally confirmed that her mother (the fifth respondent) had moved in with her, as she needed care. She had been diagnosed with advanced dementia and was unable to manage her own affairs.

FINDINGS AND REASONS

Who was dependent for support on the worker at the date of his death?

Section 25 of the 1987 Act provides:
“(1) If death results from an injury, the amount of compensation payable by the employer under this Act shall be-
(a)the amount of $750,000 (the ‘lump sum death benefit’), which is to be apportioned among any dependants who are wholly or partly dependent for support on the worker or (if there are no such dependants) paid to the worker's legal personal representative…”
The amount of $750,00 has been indexed, and the parties have agreed that the correct amount to be awarded as at 12 October 2021 was $849,300.
Section 4 of the 1998 Act then defines a dependant as follows:
“‘dependants’ of a worker means such of the members of the worker's family as were wholly or in part dependent for support on the worker at the time of the worker's death, or would but for the incapacity due to the injury have been so dependent…”
I have carefully considered the statements in evidence from the applicant, the second respondent, Comfort Anosike, Maria Leauanae, and Fiti Tuiatua. Due to their age, the third and fourth respondents have not provided statements, but their dependency position is adequately addressed in the other statements. Due to her lack of capacity (as evidenced by Dr Joseph’s report), the fifth respondent has not provided a statement, but her dependency position is also adequately addressed in the other statements. I have also found the oral evidence from Fiti Tuiatua very helpful in my considerations.
The applicant was clearly dependent for support on the worker at the date of his death. They had been in a relationship since 2009, and had married on 15 August 2013. They lived together at Mount Prichard with their three children, and the applicant says in her
25 September 2023 statement that she “expected Rex and I would live our whole lives together”. She says that the worker treated her with love and respect, and she emphasises that they and their children “were just a family that survived on our pays every week but we were a HAPPY [emphasis in original] family…having a happy family was what made us happy”.
The applicant relied upon the worker for assistance with household chores and looking after their children. He also took care of home maintenance and car maintenance, as well as regularly cooking.
Financially, the worker earned around $900-$1,200 net per week, and the applicant earned around $1,000 net per week. The family used the worker’s income to pay for rent, groceries, utilities, and other expenses.
The second respondent was also clearly dependent for support on the worker at the date of his death. She also emphasises in her 2 November 2023 statement her family’s happiness, as well as the close relationship between herself and the worker.
She was at school when the worker died, but has now completed her Higher School Certificate, and is undertaking an advanced business administration course which she expects to complete in August 2025. She still lives at home with the applicant, the third respondent, and the fourth respondent, but does not work and is unable to contribute to household expenses, although she assists the applicant with all household chores.

Apart from supporting her through her schooling, prior to his death, the worker gave her weekly pocket money, and he often also gave her money for clothes, shoes, books, electronics, or gifts.
The third respondent and the fourth respondent are still minors. I have no difficulties in finding that they as a result were totally dependent on their parents (both the worker and the applicant) for support. They lived together as a family, and it is clear from the statement evidence that the family was a very close one. It seems that the family’s income came approximately equally from each of the applicant and the worker, making all members of the family financially reliant upon the worker.
In relation to the fifth respondent, I find that she was also to a degree partially dependent on the worker for support at the date of his death. The worker’s sister, Fiti Tuiatua, was her main carer, but according to the 28 March 2024 statement of Fiti Tuiatua, the worker “used to look after mum on weekends to give me a break”. The applicant’s 8 December 2022 statement also confirms that “Rex and I would often pick up Rex’s mum and bring her to stay with us to give Fiti a break from looking after her”.
In the circumstances, I have sufficient evidence to find that the applicant, the second respondent, the third respondent, the fourth respondent, and to a degree the fifth respondent had reasonable expectations that the worker would provide support for them into the future. See TNT Group 4 Pty Limited v Halioris (1987) 8 NSWLR 486.
It now remains for me to determine whether there were any other persons who were dependent on the worker for support at the date of his death. In this regard, I note the following evidence:
(a)    Fiti Tuiatua gave oral evidence confirming:
(i)her grandparents and her father (also the worker’s grandparents and father) are deceased;
(ii)the worker had eight siblings (see paragraph 21 above), including her;
(iii)the worker was not married prior to his relationship with the applicant, other than to Josephine Mose, and
(iv)the worker had no children other than the second respondent, the third respondent, and the fourth respondent;
(b)    there are statutory declarations or statements from all of the worker’s eight siblings (in the applicant’s AALD), each of which clearly state both that the sibling was not dependent on the worker and that the sibling as a result has no intention of claiming compensation in the Commission proceedings, and
(c)    there is a statutory declaration from Josephine Mose dated 27 March 2024 (in the applicant’s AALD) in which she advises:
“I am aware of the benefits payable to a dependant…I am aware of my right to make a claim…I do not want to make a claim for a portion of the death benefit now or in the future”.
Although Josephine Mose does not specifically deny dependency upon the worker, I am satisfied from her statutory declaration that she did not consider herself to be dependent upon him at the date of his death. This position is also supported by the evidence in the applicant’s 25 September 2023 statement that the worker and Josephine Mose had been separated for several months when the applicant first met the worker in January 2009 (almost 13 years prior to his death), and that the applicant was not aware as to any financial support that the worker provided to Josephine Mose after the applicant and the worker were married on 15 August 2013 (considering the close relationship between the worker and the applicant, it would be expected that the applicant would be aware of such support if it had been provided).
Relying upon this evidence (especially the evidence from Fiti Tuiatua who, being the worker’s elder sister, is placed in the best position to know his familial situation), I am satisfied that apart from the applicant, the second respondent, the third respondent, the fourth respondent, and the fifth respondent, there were no parents, siblings, spouses, partners, children or others dependent on the worker for support at the date of his death.

How should the amount of $849,300 be apportioned between the applicant, the second respondent, the third respondent, the fourth respondent, and the fifth respondent?

Section 29 of the 1987 Act relevantly provides:
“(1) The compensation payable under this Division to each dependant of a deceased worker may be apportioned by the Commission or by the NSW Trustee.
(1A) The lump sum death benefit payable under this Division is not to be apportioned if a deceased worker leaves only one dependant (whether wholly or partly dependent on the worker for support) and the whole of the lump sum death benefit is to be paid to that one dependant.
(1B) In apportioning the lump sum death benefit payable under this Division between 2 or more dependants, the whole lump sum death benefit is to be apportioned among those dependants (so that the sum of the apportioned amounts equals the full lump sum death benefit).”
As indicated at paragraph 13 above, the applicant, the second respondent, the third respondent, the fourth respondent, and the fifth respondent have agreed an appropriate apportionment of the lump sum payable under s 25(1)(a) of the 1987 Act. The agreement in this regard is:
(a)     applicant – 72% - $611,496;
(b)     second respondent – 6% - $50,958;
(c)     third respondent - 9% - $76,437;
(d)     fourth respondent – 12% - $101,916, and
(e)     fifth respondent – 1% - $8,493.
I consider this proposed apportionment to be a sound apportionment of the appropriate lump sum having regard to the dependency level on the worker of each dependent. The apportionment allows the applicant to receive most of the lump sum, which is appropriate considering that at the time of the worker’s death, she had been in a relationship with the worker for around 12 years. They earned similar weekly amounts to contribute to their family’s financial needs, and the worker otherwise performed a great deal of the domestic and household tasks required by the family. The applicant has lost this financial and domestic support. She is left to take care of her family relying upon her own finances, that is, her weekly earnings of around $1,000 net per week.
There was no evidence before me that the applicant’s reliance upon the worker in this regard was not likely to continue indefinitely. The applicant had a reasonable expectation of receiving substantial support from the worker for over 20 years of his future working life. It is also important to note that the applicant was only 36-years-old when the worker died.
The proposed apportionment also allows the second respondent, the third respondent, and the fourth respondent (the worker’s children with the applicant) to receive appropriate allowances for their financial dependence on the worker, in that they were all totally dependent upon their parents (the worker and the applicant) at the date of the worker’s death. This level of dependence was likely to continue for many years, at least up until they had finished their respective studies and commenced work. In this regard, at the date of the worker’s death, the second respondent was 16-years-old, the third respondent was 10-years-old, and the fourth respondent was 9-years-old.
The fourth respondent is to receive slightly more of the lump sum than the second and third respondents as he is younger than them, and the third respondent is to receive slightly more of the lump sum than the second respondent as she is younger than her. This is entirely appropriate, and reflects the differing periods in which each child would have expected to have received their main support from the worker (during their studies and until they commenced work).
The proposed apportionment also allows the fifth respondent to receive a very modest allowance for her financial dependence on the worker at the date of his death. Although the allowance is small, the only evidence of dependence before me (see paragraph 33 above) related to the assistance the worker provided to his sister (Fiti Tuiatua) in looking after the fifth respondent (their mother). In my opinion, the fifth respondent was, and is, almost solely dependent upon Fiti Tuiatua. I also note in this regard the agreement of Fiti Tuiatua (as the fifth respondent’s tutor) to the proposed apportionment, and I consider that she would be in the best position to assess the degree to which the worker assisted her in caring for their mother prior to his death.
I therefore propose to approve the apportionment agreed between the parties.

SUMMARY

I formally find that the third respondent requires a tutor to represent her as she is under 18-years-of-age. Having regard to the statement (in the third Reply) of her cousin, Comfort Anosike, I accept that Comfort Anosike is an appropriate person to be her tutor and to adequately represent her interests. I also formally find that the fourth respondent requires a tutor to represent him as he is under 18-years-of-age. Having regard to the statement (in the fourth respondent’s AALD) of his cousin, Maria Leauanae, I accept that Maria Leauanae is an appropriate person to be his tutor and to adequately represent his interests. I further formally find that the fifth respondent requires a tutor to represent her as she is incapable of managing her affairs due to dementia (in accordance with the report from her geriatrician in the fifth respondent’s AALD). Having regard to the statement evidence (in the ARDW and the fifth Reply) as well as the oral evidence of her daughter, Fiti Tuiatua, I accept that Fiti Tuiatua is an appropriate person to be her tutor and to adequately represent her interests.
In summary, I make the following formal findings:
(a) that the worker died on 12 October 2021 as a result of injury sustained in the course of his employment with the first respondent, pursuant to ss 4(a) and 9A of the 1987 Act;
(b)    that the applicant was dependent on the worker for support at the date of his death;
(c)    that the second respondent was dependent on the worker for support at the date of his death;
(d)    that the third respondent was dependent on the worker for support at the date of his death;
(e)    that the fourth respondent was dependent on the worker for support at the date of his death;
(f)    that the fifth respondent was dependent on the worker for support at the date of his death;
(g)    that there were no other persons dependent for support on the worker at the date of his death;
(h)    that the first respondent is liable to pay the amount of $849,300 pursuant to s 25(1)(a) of the 1987 Act, and
(i)    that the amount of $849,300 is to be apportioned as follows, pursuant to s 29 of the 1987 Act:
(i)applicant – 72% - $611,496;
(ii)second respondent – 6% - $50,958;
(iii)third respondent - 9% - $76,437;
(iv)fourth respondent – 12% - $101,916, and
(v)fifth respondent – 1% - $8,493.
Considering my findings, there will be awards that the first respondent pay:
(a)    an amount of $611,496 to the applicant;
(b)    an amount of $50,598 to the second respondent;
(c)    an amount of $76,437, together with agreed funds management fees of $11,703.87, to the NSW Trustee and Guardian in trust for the benefit of the third respondent;
(d)    an amount of $101,916, together with agreed funds management fees of $17,263.13, to the NSW Trustee and Guardian in trust for the benefit of the fourth respondent, and
(e)    an amount of $8,493 to the NSW Trustee and Guardian in trust for the benefit of the fifth respondent.
Further, as agreed between the parties, there will also be awards:
(a) that the first respondent pay the worker’s funeral expenses pursuant to s 26 of the 1987 Act, and
(b) in favour of the first respondent in respect to any claims by any party for interest pursuant to s 109 of the 1998 Act.

Finally, I note the agreement between the parties regarding the resolution of the claims brought by the second respondent, the third respondent, and the fourth respondent, pursuant to s 25(1)(b) of the 1987 Act.

[2024] NSWPIC 251

14 May 2024