Walsh v SC Waste Transport Pty Ltd (deregistered)
[2021] NSWPIC 84
•16 April 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Walsh v SC Waste Transport Pty Ltd (deregistered) [2021] NSWPIC 84 |
| APPLICANT: | Michaela Louise Walsh |
| FIRST RESPONDENT: | SC Waste Transport Pty Ltd (deregistered) |
| SECOND RESPONDENT: | Michaela Louise Walsh as parent and guardian of Nevin- Walsh |
| THIRD RESPONDENT: | Marcus Daniel Nevin |
| FOURTH RESPONDENT: | Lakeshia Bell Nevin |
| MEMBER: | Mr Glenn Capel |
| DATE OF DECISION: | 16 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Death claim; written submissions filed by parties; Warilla Timber and Hardware Pty Ltd v Newton, Albury Real Estate Pty Ltd v Rouse, TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd and Wratten v Kirkpatrick & Ors discussed and applied; Held- determination of dependency, apportionment of death benefit amongst dependants and order for interest. |
| DETERMINATIONS MADE: | 1. The deceased worker, Seamus Anthony Walsh, died on 25 July 2019 as a result of injuries sustained during the course of his employment with the first respondent. 2. Michaela Louise Walsh and Lakeshia Bell Nevin were partly dependent for support upon the deceased at the date of death. 3. Orla Sophia Nevin-Walsh and Marcus Daniel Nevin were wholly dependent for support upon the deceased at the date of death. 4. The deceased had no other persons dependent on him. 5. The first respondent is liable for the payment of lump sum compensation and interest. |
| ORDERS MADE: | 6. The name of the second respondent is amended to Michaela Louise Walsh as parent and guardian of Orla Sophia Nevin-Walsh. 7. The lump sum compensation of $810,050 payable pursuant to section 25(1)(a) of the Workers Compensation Act1987 is to be apportioned in accordance with section 29 of the Workers Compensation Act1987 as follows: (a) $591,050 to Michaela Louise Walsh; (b) $135,000 to Orla Sophia Nevin-Walsh; (c) $42,000 to Marcus Daniel Nevin, and (d) $42,000 to Lakeshia Bell Nevin. 8. The interest in the agreed sum of $15,000 payable pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act1998 is to be apportioned as follows: (a) $10,944 to Michaela Louise Walsh; (b) $2,502 to Orla Sophia Nevin-Walsh; (c) $777 to Marcus Daniel Nevin, and (d) $777 to Lakeshia Bell Nevin. 9. The first respondent to pay lump sum compensation pursuant to section 85A(1)(a) of the Workers Compensation Act1987 plus interest pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act1998 to the dependants as follows: (1) $601,944 to Michaela Louise Walsh; (2) $42,777 to Marcus Daniel Nevin, and (3) $42,777 to Lakeshia Bell Nevin. 10. The first respondent to pay lump sum compensation and interest in the sum of $137,502 to the New South Wales Trustee and Guardian to hold on trust pursuant to section 85(1)(c) of the Workers Compensation Act 1987 until Orla Sophia Nevin-Walsh attains the age of 18 years. |
STATEMENT OF REASONS
BACKGROUND
The deceased worker, Seamus Anthony Walsh, died on 25 July 2019 as a result of injuries sustained during the course of his employment with SC Waste Transport Pty Ltd (deregistered) (the first respondent).
Liability was accepted by Employers Mutual Ltd (the insurer) pursuant to s 25(1)(a) of the Workers Compensation Act1987 (the 1987 Act) on 21 August 2020, subject to a determination of potential dependants.
Michaela Louise Walsh (the applicant) filed an Application in Respect of Death of Worker (the Application) in the Workers Compensation Commission (the Commission) on 11 November 2020, and an Amended Application on 2 February 2021.
The deceased’s daughter, Orla Sophia Nevin-Walsh, was named as the second respondent. As she is a minor, I have amended the identity of the second respondent to Michaela Louise Walsh as parent and guardian of Orla Sophia Nevin-Walsh.
The deceased’s stepson, Marcus Daniel Nevin, is the third respondent and the deceased’s stepdaughter, Lakeshia Bell Nevin, is the fourth respondent.
The applicant seeks apportionment of the lump sum death benefit of $810,050 in accordance with ss 25(1)(a) and 29 of the 1987 Act, interest pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and orders authorising payment of the lump sum pursuant to ss 85 and 85A(1)(a) of the 1987 Act.
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. The parties were advised of the intention to determine the dispute without holding a conciliation conference or arbitration hearing.
At the telephone conference on 22 March 2021, I directed that the parties file written submissions by 12 April 2021 and any submissions in reply by 19 April 2021. The parties complied with this direction and I was informed that they would not be filing any submissions in reply.
ISSUES FOR DETERMINATION
During the telephone conference on 22 March 2021, I was advised that there was no dispute in respect of dependency, and they had agreed that the death benefit should be apportioned as follows:
(a) Michaela Louise Walsh (70%);
(b) Orla Sophia Nevin-Walsh (15%);
(c) Marcus Daniel Nevin (7.5%), and
(d) Lakeshia Bell Nevin (7.5%).
The parties also agreed that the first respondent would pay interest on the death benefit in the sum of $15,000 pursuant to s 109 of the 1998 Act, such sum to be apportioned on a pro rata basis in accordance with the apportionment pursuant s 29 of 1987 Act.
The parties agree that the following issues remain in dispute:
(a) whether there were any persons wholly or partially dependent on the deceased – s 25 of the 1987 Act;
(b) apportionment of the lump sum of $810,050 payable – s 29 of the 1987 Act, and
(c) orders in relation to payment of the compensation and interest – ss 85 and 85A(1)(a) of the 1987 Act.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) Amended Application and attached documents;
(b) First Respondent’s Reply with attachments;
(c) Second respondent’s Reply with attachments;
(d) Third Respondent’s Reply with attachments, and
(e) Fourth Respondent’s Reply with attachments.
Oral evidence
The parties did not seek leave to adduce oral evidence or cross examine any witnesses.
REVIEW OF EVIDENCE
Given the discreet nature of the matters in issue, I will focus my review on the documents that concern dependency and apportionment, rather than any liability documents.
Statutory declaration of Michaela Louise Walsh
The applicant provided a statutory declaration on 23 July 2020. She advised that she formed a relationship with the deceased in 2006 and they were married in 2014. Their daughter, Orla, was born in 2011. She had a son, Marcus, and a daughter, Lakeisha, from a former relationship. Her son left the family home and became independent in October 2019.
The applicant indicated that the deceased was a director of the first respondent, which commenced trading on 16 March 2015, and he was also employed by it as a truck driver. The applicant was a director of Axis Earthworks Pty Ltd (Axis), which was deregistered on
15 March 2019. The deceased managed the accounts and finances for Axis. Both businesses operated out of their home address. Some of the first respondent’s machinery was leased from Axis prior to its deregistration in March 2019. The first respondent was deregistered on 1 January 2020.The applicant stated that payments would be made into the bank account of the first respondent by clients and the deceased would transfer the funds to Axis after business expenses were paid. She would withdraw funds for living expenses from the Axis account, and the deceased would also draw cash from the first respondent’s bank account. The deceased was not on any set salary and their accountant advised that the frequent withdrawals of cash was deemed as a wage for personal spending.
The applicant stated that the deceased paid expenses such as medical and dental fees and the cost of household and personal items. The family relied on his income and the drawings from both businesses.
The applicant confirmed that her income was drawn from the Axis bank account. There was no set amount drawn on a regular basis. The family home was in her name only and was sold due to financial hardship in October 2019 following the deceased’s death because she was unable to pay the mortgage. She now lives with her parents. She had recently secured a casual position for $24 per hour, but her hours are not guaranteed.
The applicant indicated that her weekly expenses comprised board of $100, car expenses of $150, vehicle running costs of $50, internet and related services $30, mobile phone charges of $30, medical fees and medication of $75, groceries of $300, clothing and everyday expenses for her daughter and herself of $150. She was living off the balance of the proceeds from the sale of her house. There were still some creditors of the business that were owed money.
The applicant advised that the deceased did not have a will, superannuation, or a life insurance policy. She planned to use the funds from this claim for future living expenses and to pay off to her expenses and debts. She intended to purchase a new home and provide for her daughter’s education and beyond her high school years.
Statement of Marcus Daniel Nevin
Marcus Nevin provided a statement on 19 February 2021. He stated that the deceased treated him like his son, and he considered him to be his father. When he was growing up, he was financially dependent on the deceased’s income. His mother worked as a bookkeeper in the business. When he was older, he helped the deceased when he did maintenance on his trucks and he was occasionally paid cash for this. He was devastated when his stepfather died.
Mr Nevin stated that his sister moved out of the family home when she turned 19 years old and he moved out on 11 October 2019. He remained in Coffs Harbour when his mother and younger sister moved to Wodonga. He initially stayed with friends and then secured a flat with the assistance of Community Housing.
Mr Nevin stated that he completed high school in year 12 in 2018. He was unemployed for approximately 11 months. He obtained a casual shop assistant position with Woolworths on or about 13 November 2019, and he became a part-time employee on 22 December 2020, earning $22.06 per hour for 20.75 hours per week, plus occasional overtime. His gross earnings over the past six months have averaged $711.26 per week, and his expenses total about $357.40 per week, including rent of $113.06 per week. He requires asthma medication. He owns a car, has $832.11 in the bank, and he has some furniture.
Mr Nevin stated that he has lived with his fiancé, who has some health issues and is unemployed, since 24 December 2020. He plans to put his proportion of the death benefit towards a replacement second-hand vehicle to the value of $10,000, new furnishings and equipment for the unit to the value of $6,000, and to replace his fiancé’s stolen jewellery.
Mr Nevin stated that he would like to relocate to better rented accommodation costing around $370 per week in order to avoid the crime prevalent in the area where they currently live. He hopes to obtain an apprenticeship as a diesel mechanic and to move close to his family. He hoped to attend TAFE in Albury at a cost of $19,430 for a three-year course. He wants sufficient savings for wedding expenses, future contingencies, and unexpected expenses.
Statement of Lakeisha Bell Nevin
Lakeisha Nevin provided a statement on 11 March 2021. She stated that she formed a close relationship with the deceased, and he became the only father that she ever really knew. He was the primary income earner and assisted with the family living costs from the time he moved into the family home until he died.
Ms Nevin stated that the family moved to Coffs Harbour in around 2013 and her parents established the transport business. The deceased drove trucks and her mother assisted with the bookkeeping.
Ms Nevin advised that she completed her high school education in 2014, took a gap year, and then continued her studies through an onsite traineeship at Coffs Harbour Golf Club. She received a small wage during this traineeship. She continued to be financially supported by her mother and the deceased whilst she lived at home. She lived in the family home in Coffs Harbour for a further 12 months, and in 2016, she moved to Melbourne to commence a part-time degree at Swinburne University of Technology. She anticipates that she will complete the course in 1.5 years’ time.
Ms Nevin stated that she received Centrelink benefits when she moved out of home. She obtained a part-time job with Woolworths for 10 hours per week in 2017. This allowed her to continue her studies and provided additional funds for living expenses. She also took out some student loans through Centrelink to assist with some of her expenses. She often contacted her parents when she was short of funds for rent and groceries and they would assist her whenever they could.
Ms Nevin stated that the deceased offered her emotional support and she was devasted when she suddenly lost her father figure. She considered that she was partially dependent on the deceased at the time of his death and she held a reasonable expectation that his financial assistance would continue on an as needed basis into the future.
Ms Nevin advised that she had experienced some mental and physical health issues and she has obtained medical treatment at concessional rates through the Swinburne University Health Clinic. She will require ongoing treatment after she completes her studies and will not have access to the subsided fees.
Ms Nevin stated that she was still working part-time at Woolworths earning approximately $514.30 per week. She only saved less than $50 per week after expenses. She will also start to receive a youth allowance from Centrelink benefit up to $495 per fortnight that will be reduced when the Covid 19 supplement ceases and will be reduced by the amount of her earnings each week.
Ms Nevin stated that she hopes to gain full time employment in the marketing industry, but she is aware that graduates are not paid well for the first few years and competition for positions is high. She expects that she would be paid at the lower end of the scale.
Ms Nevin stated that her living expenses amount to approximately $465.90 per week and she has assets of around $17,251, including her superannuation funds. She has a student loan debt of $7,588.66 and a HECS debt of $26,795.04. She plans to pay off some of the HECS debt with her proportion of the death benefit, and to retain some savings to fund the cost of her medical and dental treatment expenses, and the purchase of a second-hand car.
Ms Nevin indicated that she was in a relationship and they had lived together for 12 months. Her partner was in receipt of unemployment benefits and he also had health issues.
Documents
The birth certificates of the deceased, the applicant and the second respondent, together with the deceased’s marriage and death certificates are in evidence.
The first respondent’s business bank account statements show numerous cardless atm cash withdrawals by the deceased as well as transfers from an expense account from 3 July 2018 to 30 March 2019.
The third respondent’s payslips, residential tenancy agreement, rental ledger, and bank statements are in evidence. These documents are consistent with Mr Nevin’s statement.
The fourth respondent has attached to her Reply copies of her university records, residential tenancy agreement, rental ledger, Centrelink income statements, payslips, Notices of Assessment, Higher Education Loan Program and Student Loan ledgers, and bank account statements. These documents are consistent with Ms Nevin’s statement.
There are a series of emails in evidence that detail the efforts of the applicant’s solicitor to inform the deceased’s relatives in Ireland about their potential rights to make a claim.
In emails dated 1 February 2021, the deceased’s brother, Liam Walsh, indicated that he had been advised that he had no entitlement to make a claim on the death benefit as a dependent of the deceased, and he did not intend to do so.
The deceased’s parents, Patrick and Rena Walsh, sent similar emails on 1 February 2021. Claire Walsh, the deceased’s sister, advised in an email dated 1 February 2021 that she did not intend to make any claim on the deceased’s estate.
APPLICANT’S SUBMISSIONS
The applicant’s counsel, Mr Barter, submits that there is no evidence to suggest that the deceased’s relatives in Ireland were dependent on him at the time of his death. According to the applicant’s statement, she was entirely dependent on the deceased for financial support despite her nominated position as a director of Axis Earthworks Pty Ltd. That company's source of income was the earnings of its only customer, SC Waste Transport Pty Ltd. There is no evidence of any alternative source of income and her knowledge of the financial arrangements is minimal. The applicant could be regarded as totally dependent.
Mr Barter submits that the third respondent was living at home but has since left and is largely self-reliant. The fourth respondent was not living at home and she too is largely self-reliant. They had a close relationship with the deceased and would probably have been assisted by him from time to time, according to their needs and the deceased’s generosity. They have no special needs and would not expect to receive long term constant support such as that required by the applicant and the second respondent.
Mr Barter submits that the applicant and her infant daughter were totally dependent on the deceased. Their needs are substantial and ongoing. The applicant is solely responsible for the care of the second respondent and that will include substantial expenditure for housing, sustenance, education, and health care.
Mr Barter submits that there is no reason to suggest that the applicant will not continue to look after the second respondent. He submits that the applicant should she be given a substantial share of the lump sum to assist in the second respondent’s care, and the second respondent should be given a modest amount for her own benefit when she turns 18 years of age.
Mr Bater submits that he generally agrees with second respondent’s submissions, and the only variation would be to minimally reduce the amount apportioned to the third and fourth respondents. If all dependents are happy with the proposed apportionment, it could only promote discontent in the family to apportion otherwise.
SECOND RESPONDENT’S SUBMISSIONS
The second respondent’s counsel, Mr Carney, submits that the applicant and the second respondent were dependant on the deceased for all of their living expenses. The applicant was the sole heir of the deceased and she inherited his entire estate, principally the family home. The family home had to be sold due to the applicant’s inability to pay the mortgage after the deceased died.
Mr Carney submits that although the third and fourth respondents were not the natural children of the deceased, they seemed to enjoy a good relationship with him and he seemed to be in the position of a father and provided them with support. The deceased’s relatives in Ireland do not claim any dependency on the deceased or interest in pursuing a claim for a share of the death benefit.
Mr Carney submits that the fourth respondent’s financial situation could only be described as modest. She indicated that she had an expectation to receive financial help from her parents on an as needs basis. This help would have come from the deceased. Her claim could only be described as modest.
Mr Carney submits that the third respondent’s statement mirrors that of his elder sister, and likewise his claim would be modest.
Mr Carney submits that the second respondent, who is now 10 years old, has a substantial claim on death benefit due to her age and circumstances. However, the priority must be a stable home for the applicant and the second respondent, and that can only be achieved by the applicant providing a house and support at least until the second respondent turns 18 years of age, and then her expectation would be similar to that of her two siblings.
Mr Carney submits that the authorities confirm that the term “support” in s 25 of the 1987 Act does not mean only direct financial support, but also direct physical support such as helping with house renovations and other physical tasks performed around the home or for the dependent person[1].
[1] Richardson v Turfco Australia Pty Ltd [2016] NSWWCCPD 43, [72] to [75], (Richardson).
Mr Carney submits that there is no doubt that the applicant and the second respondent were receiving direct and substantial support from the deceased at the time of his death. The third and fourth respondents’ claims are minimal.
Mr Carney submits that the death benefit should be apportioned as follows:
(a) Michaela Louise Walsh (70%);
(b) Orla Sophia Nevin-Walsh (15%);
(c) Marcus Daniel Nevin (7.5%), and
(d) Lakeshia Bell Nevin (7.5%).
THIRD RESPONDENT’S SUBMISSIONS
The third respondent’s counsel, Mr Hickey, submits that it is reasonable to assume that given these difficult times, children might remain living in the family home to at least 20 years old and thus their expectation for support could be assessed at an higher level and not the usually accepted age of 18 when majority is attained.
Mr Hickey submits that the expectation for support and actual support may not have ceased in respect of the adult children, but the level of prospective support over time from that age may be considered to be relatively minor, as each would normally leave the family home, obtain work and perhaps find a partner.
Mr Hickey submits that the fourth respondent considered the deceased to be a close and loving father and the only father figure she knew. The applicant had an expectation for support from the deceased for his life expectancy of 45 years but was limited by her own reduced time to 43.5 years on the actuarial tables. There is nothing to indicate that from age 20 and onwards the support by the deceased to the three children would have been otherwise than modest.
Mr Hickey submits that the applicant was totally dependent and was raising a young daughter. Her ongoing expectation of support would have otherwise extended past pension age as the applicant would have had the benefit of either joint pension and/or superannuation entitlements, accommodation and “family work” provided to her in and about the family residence. The applicant could not afford to pay the mortgage after her partner's death and the family home was sold.
Mr Hickey submits that according to the applicant, the deceased paid the mortgage, all living expenses and outgoings including insurances, rates and services and food and clothing. He also took care of the home and yard maintenance.
Mr Hickey submits that the second respondent would have had an expectation for support around the home and in life activities at least well into her teenage years, and she would have had an expectation for monetary support to age 20, although this would overlap with the support she will receive from the applicant. The fact the third and fourth respondents were not the deceased’s natural children is irrelevant, and their different expectations centres in the fact that the fourth respondent had already turned 21 and had exercised her independence, whilst the third respondent was on the verge of turning 20 years of age.
Mr Hickey submits that the fourth respondent is attending University, and she has experienced the financial struggles involved in student life and part-time work. She has a HECS debt and a student loan which of close to $27,000. Since about March 2020 she has been in a relationship and they share rented premises with a monthly rental of $1,499. She has struggled since at least mid-2019 and has been treated for health issues. She hopes to complete her degree, purchase a cheap car, and reduce her debts. She has worked part-time since 2017 and her parents helped her with purchase of groceries and food when she needed assistance.
Mr Hickey submits that it is reasonable to assume that the deceased would have continued to assist the fourth respondent financially to some degree if he was able, but the lion's share of support would have accrued to the applicant. The second respondent would have remained dependent on the deceased until she reached 20 years of age and thereafter would have had the same modest expectation to that of her siblings.
Mr Hickey submits that the third respondent is now 21 years old. He considered that the deceased was his father, and he was residing in the family home at the time of the deceased’s death. He obtained casual work as a shop assistant and he began to live independently from 11 October 2019 in Coffs Harbour. He spent some time “couch surfing” before finding community housing. He suffers from asthma and his unemployed partner has health issues.
Mr Hickey submits that the third respondent wishes to replace some stolen items, purchase an updated motor vehicle to eliminate excessive maintenance expenditure, and buy furnishings and electrical items to improve his living standards with his partner. He wishes to move to a safer area and retain savings for a wedding and other purchases. He would like to move to Victoria to be close to his family and enrol in a 3-year course at a cost of $19,430.
Mr Hickey submits that it is reasonable to assume that the deceased would have continued to financially assist the third respondent. It is also reasonable to assume that as a parent, some level of assistance would have continued to be forthcoming from time to time throughout the lives of the children.
Mr Hickey submits that he agrees with the apportionment proposed by counsel for the other parties. The proposal reflects respective entitlements with which there is general agreement. To disturb what is proposed would only be to apply modest or minimal changes to the apportionment. Interest has been agreed as a lump sum of $15,000 with apportionment on a pro rata basis.
FOURTH RESPONDENT’S SUBMISSIONS
The fourth respondent’s solicitor, Ms Hilton, submits that the fourth respondent completed high school in 2015. She continued to live in the family home for a further 12 months while undertaking a business traineeship. She then moved to Melbourne in 2016 to undertake further studies. The family enjoyed a close relationship and remained in regular contact, even after she left the family home. The deceased provided both emotional and financial support until the date of his death.
Ms Hilton submits that the fourth respondent was studying at university and worked part-time at Woolworths. As a part-time university student, she has a very modest lifestyle and limited financial means. The evidence confirms that the applicant and her children were all either wholly or partly dependant on the deceased at the time of death.
Ms Hilton submits that the fourth respondent accepts that the applicant and second respondent are entitled to a substantial share of the death benefit and are in the greatest need of financial support following the death of the deceased. It is clear that the third and fourth respondents were also partly dependant for support on the deceased and would therefore be entitled to a share of the lump sum death benefit.
Ms Hilton submits that the fourth respondent was 22 years old at the time of the deceased’s death and is now 24 years old. Although she was not living in the family home at the time of the deceased’s death, she continued to be reliant on the deceased for emotional and intermittent financial support until his death. He was the only father figure that she had known. The deceased’s support continued even after she left the family home to further her studies.
Ms Hilton submits that the fourth respondent has only been able to work part-time and is reliant on Centrelink benefits to support her modest living expenses. She lives from pay cheque to pay cheque, and she has limited savings. She has taken out student loans to cover many of her upfront expenses and she has deferred payment of her university fees under the HECS scheme. Whenever she sought financial assistance, the deceased contributed to her living expenses. It would be reasonable to expect that some level of financial dependence would have continued, at least whilst she remained at university and until such time as she was able to obtain full-time employment. In all probability, the deceased would have continued to make financial contributions on an intermittent basis into the future.
Ms Hilton submits that the fourth respondent has a number of medical conditions that are likely to impact on her ability to obtain and maintain full time employment without regular and ongoing treatment. Such costs are partially subsidised, however these are likely to increase significantly once that subsidy ceases.
Ms Hilton submits that the second respondent will receive ongoing weekly compensation pursuant to s 25 (2)(b)(i) of the 1987 Act which will assist with day-to-day expenses until she is at least 16 years old and possibly to when she turns 21 years old if she remains a student. There is some authority to suggest that the value of weekly payments to a dependent child should be considered in the apportionment between dependents[2]. When the second respondent turns 21 years old, she will more than likely be in a similar financial and lifestyle position to her siblings. The second respondent will also indirectly benefit from any apportionment made to the applicant, given she remains under her care and this is likely to continue.
[2] Vukicevic v Simpson (1962) 36 WCR 221; Chant v Ready Mixed Concrete Industries Ltd (1973) 47 WCR 106).
Ms Hilton submits that the fourth respondent agrees that the applicant will need a reasonable amount to purchase a home. It would not be unreasonable to suggest that the applicant could afford to take out a home loan at the current low rates of interest to assist with the purchase of an affordable property. She has worked as a bookkeeper in the past and has the skills to obtain part or full-time employment.
Ms Hilton submits that the parties have agreed on a proposed apportionment of the death benefit and the agreed interest of $15,000. She submits that the apportionment is reasonable, and she requests that the Commission make orders in accordance with that agreement.
REASONS
Dependency
It was confirmed in Warilla Timber and Hardware Pty Ltd v Newton[3], Albury Real Estate Pty Ltd v Rouseand anor[4] and in Richardson that the term “support” in s 25 of the 1987 Act is not limited to financial support, and encompasses other multifactorial aspects including assistance with day to day activities and emotional support.
[3] (1995) 11 NSWCCR 546, [554] to [555].
[4] [2006] NSWWCCPD 139, [45] to [50].
In TNT Group 4 Pty Limited v Halioris[5], McHugh JA stated:
“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.”[6]
[5] (1987) 3 NSWCCR 10; 8 NSWLR 486 (Halioris).
[6] Halioris, [489].
Further, in Kaur v Thales Underwater Systems Pty Ltd[7], President Keating stated:
“The question whether there is in fact dependence or reliance at the date of death is not to be answered by looking only to the circumstances as they existed at that date;”[8]
and
“‘past events and future probabilities’ have to be considered. (Aafjes v Kearney 180
CLR 199; ster; 8 ALR 455; 50 ALJR 454, 456, 457 and 459 (Aafjes)).”[9]
[7] [2011] NSWCCPD 6 (Kaur).
[8] Kaur, [126].
[9] Kaur, [148].
I am satisfied that the evidence shows that the second and third respondents were wholly dependent on the deceased at the time of his death. They both lived at home and relied on the support of their parents.
The applicant and the fourth respondent were in gainful employment, so I consider that they were partly dependent on the deceased. Further, I am satisfied there were no other persons wholly or partly dependent on the deceased at the date of death.
Apportionment
In order to apportion the lump sum, it is necessary to review all of the relevant facts disclosed in the evidence. In Wratten v Kirkpatrick[10], Egan A-CCJ stated:
“The exercise of power to determine the correct amount to be apportioned to each dependant requires an examination of all relevant facts including the extent of past dependence, the anticipated future dependence, the ages of the dependants, their health, special needs, lifestyle, etc.”[11]
[10] (1996) 15 NSWCCR 32 (Wratten).
[11] Wratten, [34].
Each case requires an examination of the individual facts as no two matters are identical. The parties came to a preliminary agreement in relation to apportionment of the lump sum death benefit during the telephone conference on 21 March 2021.
The parties have obviously put some thought into reaching a preliminary agreement as to apportionment. Nevertheless, having regard to the evidence, I am not satisfied that this represents a fair and appropriate apportionment of the death benefit.
I agree that the applicant should be entitled to a greatest proportion of the lump sum, having regard to her dependency, her age, and future needs. This must be weighed up with the dependency of each of the other dependants.
The second respondent was almost 8 years old at the time of her father’s death. She would have a greater expectation of support than her siblings.
The second respondent would have had an expectation of support from the deceased throughout her school years and at least until she turned 21 years old. This is the equivalent of 13 years from the date of death.
The applicant estimates that her expenses are approximately $810 per week. I would have thought that she spends at least a third of this amount on her daughter’s upkeep.
It is true that she receives payments for the second respondent’s upkeep pursuant to
s 25(1)(b) of the 1987 Act and these payments can continue until she turns 21 years of age. The current rate is $150.20 per week. However, such payments would hardly cover the cost of the second respondent’s care.I consider that the second respondent would have had an expectation of support from the deceased in the order of $200 per week, or $10,400 per year. Over a 13-year period, this would amount to approximately $135,000.
I agree with submissions made on behalf of the applicant and the second respondent that the expectations of the third and fourth respondents would be modest. The agreed figure of $60,000 each does not in my view reflect a modest expectation.
The third respondent was 19 years old and the fourth respondent was almost 23 years old at the time of their stepfather’s death. The third respondent was still living at home, so perhaps his entitlement should be greater, however, he moved out of the family home within a few months of the deceased’s death. Therefore, the expectations of the third and fourth respondents would be similar. The fourth respondent is involved in further studies, and the third respondent hopes to enrol in tertiary studies if and when he moves to Victoria.
I consider that the third and fourth respondents would have had a similar expectation of $10,400 per annum, but this would have only continued for a period of say, four years, whilst they were involved in further studies. Therefore, their entitlement would be in the order of $42,000 each. This means that the applicant would be entitled to the balance of $591,050.
These amounts differ from those referred to in the second respondent’s submissions and the percentages that were agreed between the parties. Nevertheless, I consider that they more appropriately reflect the respective expectations and entitlements of the parties.
Accordingly, I apportion the lump sum payment pursuant to s 29 of the 1987 Act as follows:
(a) $591,050 to Michaela Louise Walsh (72.96%);
(b) $135,000 to Orla Sophia Nevin-Walsh (16.68%);
(c) $42,000 to Marcus Daniel Nevin (5.18%), and
(d) $42,000 to Lakeshia Bell Nevin (5.18%).
Interest
The first respondent is pay interest of $15,000 pursuant to s 109 of the 1998 Act as per the agreement as follows:
(a) $10,944 to Michaela Louise Walsh (72.96%);
(b) $2,502 to Orla Sophia Nevin-Walsh (16.68%);
(c) $777 to Marcus Daniel Nevin (5.18%), and
(d) $777 to Lakeshia Bell Nevin (5.18%).
FINDINGS
The deceased worker, Seamus Anthony Walsh, died on 25 July 2019 as a result of injuries sustained during the course of his employment with the first respondent.
Michaela Louise Walsh and Lakeshia Bell Nevin were partly dependent for support upon the deceased at the date of death.
Orla Sophia Nevin-Walsh and Marcus Daniel Nevin were wholly dependent for support upon the deceased at the date of death.
The deceased had no other persons dependent on him.
The first respondent is liable for the payment of lump sum compensation and interest.
ORDERS
The name of the second respondent is amended to Michaela Louise Walsh as parent and guardian of Orla Sophia Nevin-Walsh.
The lump sum compensation of $810,050 payable pursuant to s 25(1)(a) of the 1987 Act is to be apportioned in accordance with s 29 of the 1987 Act as follows:
(a) $591,050 to Michaela Louise Walsh;
(b) $135,000 to Orla Sophia Nevin-Walsh;
(c) $42,000 to Marcus Daniel Nevin, and
(d) $42,000 to Lakeshia Bell Nevin.
The interest in the agreed sum of $15,000 payable pursuant to s 109 of the 1998 Act is to be apportioned as follows:
(a) $10,944 to Michaela Louise Walsh;
(b) $2,502 to Orla Sophia Nevin-Walsh;
(c) $777 to Marcus Daniel Nevin, and
(d) $777 to Lakeshia Bell Nevin.
The first respondent to pay lump sum compensation pursuant to s 85A(1)(a) of the 1987 Act plus interest pursuant to s 109 of the 1998 Act to the dependants as follows:
(1) $601,944 to Michaela Louise Walsh;
(2) $42,777 to Marcus Daniel Nevin, and
(3) $42,777 to Lakeshia Bell Nevin.
The first respondent to pay lump sum compensation plus interest in the sum of $137,502 to the New South Wales Trustee and Guardian to hold on trust pursuant to s 85(1)(c) of the 1987 Act 1987 until Orla Sophia Nevin-Walsh attains the age of 18 years.
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