Tumut Excavations Pty Limited v Ferella
[2021] NSWPIC 176
•8 June 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Tumut Excavations Pty Limited v Ferella [2021] NSWPIC 176 |
| APPLICANT: | Tumut Excavations Pty Limited |
| FIRST RESPONDENT: | Kim Ferella |
| SECOND RESPONDENT: | Joshua Ferella |
| MEMBER: | Elizabeth Beilby |
| DATE OF DECISION: | 8 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Substantive issue for determination is the question of dependency and apportionment of the death benefit to the respective applicants; Held- first and second respondents were depend upon the deceased for support at the date of his death; apportionment of lump sum benefit pursuant to section 25(1)(a) of the Workers Compensation Act 1987. |
| DETERMINATIONS MADE: | 1. I find that the first and second respondents were dependent for support upon the deceased, Lance Ferella, at the date of his death. 2. There was no other person dependent upon the deceased at the date of death. 3. The lump sum benefit payable in accordance with section 25(1)(a) of the Workers Compensation Act 1987 as of the date of death was $834,200. 4. Pursuant to section 29(1)(a) of the Workers Compensation Act 1987, the lump sum benefit is to be apportioned in the following manner: (a) $804,200 to the first respondent, and (b) $30,000 to the second respondent. |
STATEMENT OF REASONS
BACKGROUND
Mr Lance Ferella (the deceased) died in the course of his employment on 11 October 2020. The employer (the applicant) has admitted liability in respect of the death and is liable to pay compensation pursuant to section 25 of the Workers Compensation Act 1987 (the 1987 Act) (the lump sum death benefit).
The only substantive issue for determination is the question of dependency and apportionment of the death benefit to the respective applicants.
ISSUES FOR DETERMINATION
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.
PROCEDURE BEFORE THE COMMISSION
The claim was listed in the Personal Injury Commission for a telephone conference on 8 June 2021. The parties were able to agree to a proposed resolution of the matter at that time.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply from the first respondent, and
(c) Reply from the second respondent.
Dependency
A dependent is defined in section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to include persons who were “wholly or in part dependent for support on the worker at the time of the worker’s death”.
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.
Mrs Kim Ferella is the first respondent and has provided an extensive statement dated 1 June 2021 wherein she outlines her dependency upon the deceased. The statement outlines her dependency primarily arising from her marriage with the deceased. This included, but was not limited to, executing a mortgage over a property for their mutual benefit and payment of day-to-day expenses including utilities.
After considering Mrs Ferella’s statement, there is no doubt that she had a significant actual and anticipated dependency upon her husband as at the date of death.
Mr Joshua Ferella is the second respondent and the deceased’s son. He has provided an extensive statement dated 31 May 2021 wherein he outlines his actual and anticipated dependency upon the deceased. This included ad hoc assistance which was both financial and employment based and also the provision of tools and machinery to assist the second respondent in both his personal and professional life.
The extent of the dependency by the second respondent is not as great as the first respondent based upon the material before me.
The respondents were able to agree to a proposed resolution of the matter on the basis of the following apportionment of the lump sum benefit;
a.$804,200 to the first respondent, and
b.$30,000 to the second respondent.
Having examined the evidence of dependency before me, I consider that the proposed apportionment is appropriate and reasonable.
There are no other persons identified that I would consider dependant upon the deceased.
Interest
A claim for interest was not part of the application that was filed in the Commission however the parties were able to resolve the respondent’s entitlement to interest on the lump sum benefit.
The parties agreed that the respondents would be entitled to interest at the rate of 2% per annum from 18 December 2020 to date. The effect of that agreement is that the following payments are to be made to the respondents in addition to the lump sum benefit;
a. $7,623.38 to the first respondent, and
b. $284.38 to the second respondent
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