Turner v Essential Energy
[2023] NSWPIC 79
•2 March 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Turner v Essential Energy [2023] NSWPIC 79 |
| APPLICANT: | Donna Tracey Turner |
| RESPONDENT: | Essential Energy |
| Member: | Rachel Homan |
| DATE OF DECISION: | 2 March 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; application for lump sum death benefit; identification of dependants; application for discretionary interest; when claim duly made; appropriate rate of interest; Held – liability to pay compensation conceded; the applicant was the only dependant of the deceased worker; orders for payment of the lump sum pursuant to sections 25(1)(a), 29(1A) and 85A; award for discretionary interest from date full particulars of dependence provided at 2% above Reserve Bank of Australia cash rate. |
| determinations made: | 1. The deceased worker, Michael Anthony Turner, died on 3 June 2016 as a result of an injury arising out of his employment with the respondent. 2. Donna Tracey Turner (the applicant) was a dependant of the deceased worker who was partly dependent for support upon him at the date of his death. 3. There were no other persons wholly or partly dependent for support upon the deceased worker at the date of death. 4. Pursuant to s 29(1A) of the Workers Compensation Act 1987 the whole of the lump sum death benefit is to be paid to the applicant. 5. The lump sum death benefit payable in accordance with s 25(1)(a) of the Workers Compensation Act 1987 is $760,000 |
| ORDERS MADE: | 1. The respondent to pay $760,000 to the applicant pursuant to s 85A(1)(a) of the Workers Compensation Act 1987. 2. Pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998, the respondent to pay the applicant interest on the lump sum death benefit as follows: (a) from 19 January 2023 to 7 February 2023 at the rate of 5.10% per annum, and (b) from 8 February 2023 to the date of this Certificate of Determination at the rate of 5.35% per annum. |
STATEMENT OF REASONS
BACKGROUND
Mr Michael Anthony Turner (the deceased worker) died as a result of an injury arising out of his employment with Essential Energy (the respondent) on 3 June 2016. The deceased worker was 51 years old at the time of his death. Liability to pay compensation in respect of the death has been accepted by the respondent’s insurer.
Ms Donna Tracey Turner (the applicant) lodged an Application in Respect of Death of Worker (the Application) on 7 September 2022 seeking orders for payment of the lump sum death benefit payable under s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act) pursuant to s 85A of the 1987 Act. The applicant was the deceased worker’s spouse.
PROCEDURE BEFORE THE COMMISSION
The parties appeared at preliminary conference on 2 November 2022. At that date, liability to pay compensation remained in dispute. Directions were made to enable the lodgement of additional evidence, including evidence of attempts to contact any other member of the deceased worker’s family who may have been dependent on him for support.
The parties appeared for conciliation conference and arbitration hearing via Microsoft Teams on 19 January 2023. The applicant was represented by Mr John Gaitanis of counsel, instructed by Ms Baiba Berzins. The respondent was represented by Mr Greg Young, of counsel, instructed by Ms Miriam Browne. Representatives from the insurer were also present.
At the conciliation conference, counsel for the respondent informed me that liability to pay compensation had been accepted. The parties agreed that the applicable death benefit was $760,000.
Directions were made admitting into evidence late documents lodged by the applicant in respect of the issue of dependence. It was determined, however, that further evidence was required in relation to the deceased worker’s mother and siblings. I was informed that the deceased worker’s father was deceased.
A timetable was established for the service and lodgement of further evidence as well as written submissions in respect of an application for discretionary interest pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The parties were advised that the matter would be determined in writing, or listed for further teleconference should anything be outstanding, at the conclusion of that timetable.
ISSUES FOR DETERMINATION
The parties agree that the following matters require determination:
(a) identification of any family members who were wholly or partly dependent for support on the deceased worker in accordance with s 4 of the 1998 Act;
(b) orders in relation to payment of the compensation, and
(c) orders with respect to interest pursuant to s 109 of the 1998 Act.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application in Respect of Death of Worker and attached documents;
(b) Reply and attached documents;
(c) documents lodged by the applicant on 29 September 2022 in compliance with the Commission’s direction of 8 September 2022;
(d) documents attached to an Application to Admit Late Documents lodged by the applicant on 23 November 2022;
(e) email correspondence from Nola Turner dated 7 November 2022, lodged on
19 January 2023;(f) statutory declaration made by the applicant on 18 January 2023, lodged on
19 January 2023;(g) documents attached to an Application to Admit Late Documents lodged by the applicant on 13 February 2023, including written submissions, dated
7 February 2023;(h) written submissions lodged by the respondent on 16 February 2023, and
(i) written submissions in reply lodged by the applicant on 22 February 2023.
The evidence before the Commission includes the New South Wales death certificate of the deceased worker, which identified the applicant as his spouse. The deceased worker’s parents were identified as Mrs Nola Gai Turner and Mr Gordan Dundas Turner. The deceased worker was recorded to have two children, Mr Dion Quinton Turner and Mr Joel Caine Turner, aged 26 and 24 years respectively, at the time of the deceased worker’s death.
Evidence has been lodged of correspondence from the applicant’s solicitor to the deceased worker’s children, siblings and mother advising them that a claim for lump sum compensation had been made and that any dependants of the deceased worker were entitled to make a claim. The recipients were advised that proceedings had been commenced in the Commission and were requested to acknowledge whether they wished to make a claim. The recipients were advised of their ability to obtain free legal advice provided by the Independent Review Office.
Both of the deceased worker’s children have supplied a statutory declaration in which they indicated that they did not wish to claim dependency for the purposes of the compensation claim and had been provided with the opportunity to obtain independent legal advice but did not wish to do so.
The deceased worker’s mother wrote to the applicant’s solicitor on 9 November 2022 acknowledging receipt of the correspondence. A statutory declaration made by Mrs Turner, dated 21 January 2023, denying dependence on the deceased worker, was subsequently lodged.
A statutory declaration made by the deceased worker’s sister, Catherine Turner, dated
27 January 2023, has been lodged to the same effect.Email correspondence, dated 20 January 2023, from the deceased worker’s brother,
Mr Matthew Turner, has been lodged and indicates that he had received the correspondence from the applicant’s solicitor and understood it. Mr Turner said he was not dependent and would sign an attached statutory declaration but this would take a couple of weeks as he was working remotely and had limited access to a Justice of the Peace. A statutory declaration, dated 11 February 2023, made by Mr Turner confirmed that he did not wish to claim dependence.The applicant has lodged a Queensland Marriage Certificate and written statements dated
19 September 2022, 21 November 2022 and 18 January 2023, in which she has described her relationship with and the nature of her dependence on the deceased worker. The other factual evidence before me is consistent with the applicant’s evidence.
FINDINGS AND REASONS
The term, ‘dependants’ is defined in s 4 of the 1998 Act as
“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 am satisfied on the uncontradicted evidence before me that the applicant in these proceedings was the deceased worker’s spouse.
It is also necessary to determine whether the applicant was wholly or in part dependent for support on the worker at the time of the worker’s death.
In TNT Group 4 Pty Limited v Halioris (1987) 3 NSWCCR 10; 8 NSWLR 486, McHugh JA stated at [489]:
“Dependency is a question of fact: Potts v Niddre & Benhar Coal Co Ltd [1913] AC 531 at 539, 542; Aafjes v Kearney (1976) 50 ALJR 454 at 456, 457 and 459. It is concerned with actual and not theoretical support. A person claiming dependency need not be in actual receipt of support at the date of death. It is enough that, as at that date, he or she had a reasonable expectation of support in the future. Dependency may exist at the date of death although actual support cannot or is unlikely to occur until a future time.”
In Richardson v Turfco Australia Pty Ltd [2016] NSWWCCPD 43 (Richardson), Keating P identified a number of general statements of principle for determining dependency at [65]:
“(a) dependency is not limited to the class of persons actually in receipt of financial assistance (Sadiq);
(b) dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased (Amaca Pty Ltd v Novek [2009] NSWCA 50);
(c) although dependency is not limited to financial dependency, it does involve one person being beholden to another for some material or physical help or succour, emotional dependency is not enough (Skinner);
(d) ‘dependent’ in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed (Petrohilos);
(e) a mother’s services to a young child may satisfy the test of dependency. To suggest that, in a money sense they are valueless, is simply wrong (Petrohilos);
(f) while one of the commonest forms of dependence might be financial dependence, the word used in the statute (which I infer is the Conveyancing Act 1919) is not limited to financial dependence (Williams), and
(g) the word ‘partly’ in the phrase ‘partly dependent’, whilst a word of ‘some elasticity’, does not mean ‘substantially’, but means ‘more than minimally’, or perhaps, ‘significantly’ (Bremner v Graham [2016] NSWSC 633 at [34] citing Priestley JA at [4] (with whom Hope AJA agreed) in McKenzie v Baddeley [1991] NSWCA 197) (McKenzie)). Meagher JA, in McKenzie at [6], commented that ‘[c]ommon sense requires that certain trivial activities should be disregarded’.”
I am satisfied on the uncontradicted evidence before me that the applicant was partly dependent for support on the deceased worker at the date of his death.
I am further satisfied that appropriate enquiries have been made and there is no evidence of any other person, apart from the family members identified in the evidence in these proceedings, who may have been dependent on the deceased worker at the time of his death.
The deceased worker’s mother, brother, sister and his two children have each provided evidence that they did not intend to pursue any claim for a portion of the lump sum death benefit after being informed of their ability to make a claim and obtain independent legal advice. There is no evidence of any other living family member who may have been dependent upon the deceased worker.
I am satisfied for the purposes of s 29(1A) of the 1987 Act that the deceased worker left only one dependant. The whole of the lump sum death benefit is to be paid to that one dependant, the applicant.
The applicant has requested that payment of the benefit be made to her directly pursuant to s 85A(1)(a) of the 1987 Act. That course was not opposed by the respondent. I am satisfied in all the circumstances that this is appropriate.
Interest
The remaining issue in contention is whether orders should be made in the Commission’s discretion for payment of interest on the lump sum death benefit and, if so, over what period and at what rate.
Section 109 of the 1998 Act provides:
“109 Interest before order for payment (cf former s 113)
(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.”
In Kaur v Thales Underwater Systems Pty Ltd (Kaur),[1] President Keating J stated at [139]:
“Section 109(2)(b) of the 1998 Act prohibits interest on any award of compensation payable under the Act for any period before a claim for the compensation was duly made. I accept the submission that the claim for compensation on behalf of the appellants was not duly made until the day of the arbitration. I therefore accept Thales’s submission that, as at the arbitration, the appellants could not be entitled to interest pursuant to s 109 of the 1998 Act.”
[1] [2011] NSWWCCPD 6 at [139].
In Brambles Australia Ltd t/as Gardner Perrott Industrial Services v Hamilton & Monier Ltd,[2] Harrington ADP at [43] stated that an exercise of the discretion to order interest would depend on the evidence before the Commission, and relevant evidence may include reasons for a delay in the determination of the claim.
[2] [2006] NSWWCCPD 169.
In Pheeney v Doolan (No. 2)[3] the Court of Appeal said it was necessary to determine in what respect the plaintiff has been financially disadvantaged by delay in the payment of damages so as to make an appropriate allowance of interest. Reynolds JA, Moffitt P and Mahoney JA agreeing on point, said of the interest provision:
“It provides an ancillary power akin to an order for costs, and its purpose is to aid the court to do more complete justice between the parties that is otherwise possible … It is not designed to compensate a plaintiff for loss arising out of the cause of action, but to provide compensation where it is otherwise appropriate to do so for the circumstance that a sum of money has been outstanding to him for a period of time.”
[3] [1977] 1 NSWLR 601.
Applicant’s submissions
The applicant noted that liability to pay the lump sum death benefit had been disputed up until just prior to the conciliation conference and arbitration hearing on 19 January 2023. The applicant submitted that the decision to accept liability was made after the service of records produced in response to a notice for production on 29 November 2022. The applicant submitted that this evidence was available to, and should have been obtained by, the respondent earlier. An enquiry of the deceased worker’s colleagues would have established that the death resulted from a compensable injury.
The applicant submitted that the legislation no longer required a level of dependency to be established in order for the death benefit to be paid. The applicant stated,
“There is a common misconception that full particulars of the extent of dependency should be provided before there is an entitlement to interest. The legislation speaks only in terms of ‘a claim’ being duly made.
Dependency is no longer a critical element to entitlement to the death benefit payable.”
The applicant submitted that the decision to dispute liability notified in accordance with s 78 of the 1998 Act did not raise the issue of dependency or apportionment. Reference was made to the arbitral decision in McGrath v PM Electric Pty Limited & Ors (W380/21).
The applicant submitted that interest ought to be awarded from the time when the claim was duly made, being 28 August 2019. The respondent had the monies in its control and derived benefit from those monies when it was not so entitled.
The applicant submitted that the appropriate rate to be applied should reflect the Supreme Court rates and recent economic circumstances. It was submitted that the Commission should not develop its own approach on matters such as the award of interest, which are not unique to its jurisdiction. A rate in the order of 6% ought to be applied.
Respondent’s submissions
The respondent prepared a chronology which indicated that a fatality claim form was lodged on 28 August 2019.
The first evidence of causation, namely a medical report by Dr S Paisley (psychiatrist) dated 31 August 2022, was not served until the lodgement of the Application. Further witness statements were lodged by the applicant on 23 November 2022. Liability to pay compensation was accepted on 17 January 2023.
The respondent submitted that it had not been possible for the insurer to pay the lump sum other than to the New South Wales Trustee and Guardian because of the need for a determination of those persons who were dependent for support upon the deceased worker, as well as orders with respect to apportionment and payment of the lump sum.
The respondent submitted that it was incumbent upon the applicant and any other potential dependents to prove dependency or otherwise. A signed copy of the applicant’s statement of dependency was not served until the arbitration. Statements from the deceased worker’s mother and siblings were not served until 13 February 2023.
In these circumstances, the respondent submitted that the Commission would not exercise its discretion to award interest under s 109 of the 1998 Act.
In the alternative, any interest awarded should not be for the period prior to the arbitration, when the applicant’s signed statement of dependency was served, or 7 September 2022, at the earliest, when the Application was registered.
The respondent submitted that the claim was not “duly made” until the claims for dependency were made. The respondent referred to the decision in Kaur and a number of arbitral decisions in submitting that the claim was only duly made when particulars of dependency had been provided.
With respect to the rate, the respondent submitted that the approach taken by Member Haddock in AFF Properties Pty Ltd v Jennifer Leslie Robovich & Ors in matter W4398/22 should be adopted.
Applicant’s submissions in reply
The applicant submitted that it should have been clear that the applicant was married to and living with the deceased worker at the time of his death.
The applicant submitted that evidence with respect to causation could have been obtained by the respondent at an early stage but was not. It was clear from the outset, despite the applicant’s initial disinclination to believe it, that the death had resulted from injury.
The applicant submitted that respondent had retained monies to which it was not entitled from the date of the death of one of its employees and the benefit of retention of those monies (i.e. interest earned) should flow to the applicant.
The applicant repeated its submission that it is not necessary that full particulars of the extent of dependency should be provided before there is an entitlement to interest.
Consideration
The discretion to award interest is subject to the limitations set out in ss 109(2) and (3). Relevantly, subsection (2)(b) provides that interest cannot be ordered on any compensation payable for any period before a claim for the compensation was duly made.
The applicant submits that the claim was “duly made” on 28 August 2019, when a fatality claim form was submitted. The applicant submits that it was not necessary for all particulars of dependency to be provided before an entitlement to the death benefit could be established.
The approach advocated by the applicant is not, however, consistent with that taken in a substantial number of decisions at the arbitral level.[4] I am not persuaded by the applicant’s submissions to depart from that approach.
[4] See, for example, Cooper v G & W Mudge Concreting Pty Ltd & Ors (6411/18); Lavelle v Browne & Ors (533/19); Alexander v J B Cullinan and N N Cullinan & Ors (4832/20); Lindsay v City Clean Payroll Pty Ltd (6364/20); A1 Arbor Tree Service Pty Ltd v Matai & Ors (2123/20); Mudgee Explorer Tours Pty Ltd v Clarke [2021] NSWPIC 41 (Clarke); and Youseph v Homebush Unit Trust t/as Primo Smallgoods [2021] NSWPIC 299.
Section 260 of the 1998 Act provides that a claim for compensation must be made in accordance with the Workers Compensation Guidelines. In respect of claims for payments in the event of death, the Guidelines note, amongst other things, that in order to pay compensation an insurer must determine whether there are any dependants who are eligible for the lump sum death benefit and how the benefit should be apportioned. Anyone who believes they are dependent must supply enough information for the insurer to determine if they meet the legal definition of a dependant.
Whilst it is conceivable that the respondent’s liability to pay compensation in respect of the deceased worker’s death could have been determined at an earlier point in time with the making of relevant enquiries, the applicant’s claim to that compensation could not be determined until it was fully particularised.
I accept that there was evidence of the applicant’s marriage to the deceased worker and place of residence available to the insurer at an early stage. The separate issue of the nature of the applicant’s dependence upon the deceased worker, however, was not fully particularised until the statement made by the applicant and lodged at the conciliation conference and arbitration hearing on 19 January 2023.
Furthermore, the extent of the applicant’s entitlement to the lump sum death benefit could not be determined until particulars of the dependence of other members of the deceased worker’s family had been provided.
The need for further particulars of potential dependants was identified by the Commission in a direction, dated 8 September 2022, by Delegate Gamble. It was noted that the deceased worker’s sons were identified in the application as potential dependants. The applicant was directed to write to the deceased worker’s sons “and any other potential dependants” informing them of the proceedings and their ability to make a claim on the death benefit as a dependant.
In response to the direction dated 8 September 2022, the applicant provided statements from her and the deceased worker’s sons. At a preliminary conference on 2 November 2022, however, it was identified that evidence had not been provided in relation to the possible dependence of the deceased worker’s parents.
The statutory declaration made by the applicant on 18 January 2023 and lodged on
19 January 2023 provided, for the first time, particulars of the deceased worker’s siblings and their dependence on the deceased worker, in addition to particulars of the deceased worker’s parents’ dependence. Although further evidence from each of those family members was provided at a later date, “particulars” of those family members were provided in the applicant’s statement served and lodged on the date of the conciliation conference and arbitration hearing.In these circumstances, I am not satisfied that the applicant’s claim was fully particularised until 19 January 2023.
I am satisfied that it is appropriate in this case to exercise my discretion to award interest. The award for interest will date from 19 January 2023.
Section 109(1) provides that the Commission may order interest at such a rate as it thinks fit. Although I have taken into account the applicant’s submissions as to the appropriate rate, the approach of the Commission has been to award interest at a rate consistent with recent rates of interest. I accept the respondent’s submission that an appropriate rate of interest is 2% above the Reserve Bank of Australia cash rate for the relevant period.[5]
[5] This is consistent with the approach taken in several matters, including Zona Coatings; Cassegrain Tea Tree Oil Pty Ltd v BBS & Ors [2022] NSWPIC 590; and BFG v Polyfoam (Sydney) Pty Ltd & Ors [2022] NSWPIC 724.
I determine that interest is to be paid on the lump sum death benefit payable to the applicant from 19 January 2023 to the date of this Certificate of Determination at the following rates:
(a) from 19 January 2023 to 7 February 2023 at the rate of 5.10% per annum, and
(b) from 8 February 2023 to the date of this Certificate of Determination at the rate of 5.35% per annum.
Funeral expenses
The applicant has, in its written submissions, submitted that an order should be made under s 26 of the 1987 Act that an amount of $15,000 is payable by the respondent to the applicant to reimburse the deceased worker’s union if called upon for reimbursement of funeral expenses.
In circumstances where the Application did not claim funeral expenses, and no application has been made to amend the Application to that effect, I am not satisfied that it is appropriate for the Commission to make the order sought.
I do note, however, that s 26 of the 1987 Act will have effect in accordance with its terms. The acceptance of liability to pay compensation in respect of the death of the deceased worker means that the respondent will be liable to pay additional compensation equal to reasonable funeral expenses not exceeding $15,000 upon production of appropriate accounts or receipts.
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