Wei v Hungry Panda Au Pty Ltd
[2022] NSWPIC 264
•2 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Wei v Hungry Panda Au Pty Ltd & Ors [2022] NSWPIC 264 |
| APPLICANT: | Lihong Wei |
| FIRST RESPONDENT: SECOND RESPONDENT: THIRD RESPONDENT: FOURTH RESPONDENT: | Hungry Panda Au Pty Ltd Xue’er Wei Chenxi Wei Qingshan Chen |
| PRINCIPAL MEMBER: | Josephine Bamber |
| DATE OF DECISION: | 2 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Apportionment of lump sum death benefit pursuant to section 25 Workers Compensation Act 1987. |
| DETERMINATIONS MADE: | 1. 1. That the Application in Respect of Death of a Worker is amended to insert the lump sum payable of $827,400. 2. 2. That the deceased worker, Xiojun Chen, died on 29 September 2020 from injuries sustained in the course of his employment with the first respondent, Hungry Panda Au Pty Ltd. 3. 3. That the compensation payable by the first respondent in accordance with section 25(1)(a) of the 1987 Act on the death of the deceased worker is $827,400. 4. 4. That Lihong Wei, his wife, Xue’er Wei, his daughter, Chenxi Wei, his son and Qingshan Chen, his father, were dependent for support upon the deceased worker at the date of his death. 5. 5. That no other persons were dependent for support upon the deceased worker at the date of his death. 6. 6. Pursuant to section 29 of the 1987 Act the apportionment of lump sum payment between the dependents is as follows: a. a. Lihong Wei $537,810 being 65% of the lump sum; b. b. Xue’er Wei $82,740 being 10% of the lump sum; c. c. Chenxi Wei $165,480 being 20% of the lump sum, and d. d. Qingshan Chen $41,370 being 5% of the lump sum. a. 7. Pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998 the first respondent is to pay interest totalling $10,337.52 to be paid in the same pro-rata percentages as referred to above to each of the dependents. b. 8. That the first respondent is to pay to Lihong Wei the sum of $537,810 together with interest. c. 9. That the first respondent is to pay to Xue’er Wei the sum of $82,740 together with interest. d. 10. That the first respondent is to pay to Qingshan Chen the sum of $41,370 together with interest. e. 11. Pursuant to section 85 of the 1987 Act the first respondent is to pay the sum of $165,480 together with interest to the NSW Trustee for the benefit of Chenxi Wei. |
STATEMENT OF REASONS
BACKGROUND
a.1. The first respondent now agrees that Mr Xiojun Chen was employed by it, Hungry Panda Au Pty Ltd. He was a food delivery driver who died on 29 September 2020 when his bicycle was hit by a bus.
b.2. As the first respondent has admitted liability for compensation flowing from Mr Chen’s death it is not necessary for the details of his injury and death to be summarised in these reasons. The Application in Respect of the Death of a Worker (the Application) attaches a number of documents detailing the same.
c.3. In the Application which has been filed by the deceased’s widow, Lihong Wei, orders are sought in relation to the apportionment of the lump sum provided by section 25 of the Workers Compensation Act 1987 (the 1987 Act). The lump sum figure is blank in the Application and by consent an amendment was made to insert the figure of $827,400.
d.4. The deceased worker and Lihong Wei have a daughter, Xue’er Wei who has now turned 18, and a son, Chenxi Wei who is aged 9.
e.5. The deceased’s father Qingshan Chen also claims he was dependent for support on the deceased at the time of his death.
f.6. All of the above named dependents are resident in China.
PROCEDURE BEFORE THE COMMISSION
a.7. A conciliation conference/arbitration hearing was convened before me on 1 June 2022 at which time the parties came to an agreement in relation to the proposed apportionment.
b.8. Ms Lihong Chen was represented by Mr Greg Young, counsel, instructed by Jasmina Mackovic, solicitor. Mr Bruce McManamey, counsel, represented Xue’er Wei, Ms Jodie Magee, counsel, represented Chenxi Wei and Mr Bill Loukas, counsel, instructed by Mr Stephen Young, solicitor, represented Qingshan Chen.
c.9. The first respondent was represented by Mr Stuart Grant instructed by Mr Nicholas Studdert, solicitor.
d.10. The Commission arranged for a Chinese interpreter to be present, and Ms Mackovic also had a Chinese speaking offsider to assist.
e.11. None of the Chinese parties were present but their legal representatives informed me they obtained instructions via telephone from them.
EVIDENCE
Documentary evidence
a.12. The following documents were in evidence before the Commission and taken into account in making this determination:
b. (a) the Application;
c. (b) first respondent’s Reply, and
d. (c) Application to Admit Late Documents dated 28 March 2022 attaching the fourth respondent’s Reply;
FINDINGS AND REASONS
a.13. Having considered all of the material in evidence, I accept that Lihong Wei, Xue’er Wei, Chenxi Wei and Qingshan Chen were dependent on the deceased for support at the date of his death.
b.14. I am also satisfied from the entirety of the evidence that there are no other persons who were dependent on the deceased for support at the time of his death.
c.15. Counsel advised me in conciliation that they had reached agreement for the following apportionment of the lump sum payable on the death of the worker.
d. (a) Lihong Wei $537,810 being 65% of the lump sum;
e. (b) Xue’er Wei $82,740 being 10% of the lump sum;
f. (c) Chenxi Wei $165,480 being 20% of the lump sum, and
g. (d) Qingshan Chen $41,370 being 5% of the lump sum.
h.16. I consider, and find, that the proposed apportionment is in the range of a sound apportionment of the lump sum, and I make orders accordingly. Chenxi Wei is the only minor and in accordance with the parties wishes, and the usual practice of the Commission, an order has been made for his portion to be payable to the NSW Trustee.
17. The parties came to agreement in relation to interest which is to be payable by the first respondent in pro-rate shares in accordance with their respective percentages of the lump sum. I am satisfied that interest should be payable in accordance with this agreed proposal, and I so order.
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