West v Tox Free Australia Pty Ltd - [2025] NSWPIC 43

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	West v Tox Free Australia Pty Ltd & Ors [2025] NSWPIC 43
APPLICANT:	Colleen Theresa Mary West
FIRST RESPONDENT:	Tox Free Australia Pty Ltd
SECOND RESPONDENT:	Nathan Victor West
THIRD RESPONDENT:	Kelly Maree Elliott
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	11 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Death of worker; orders previously made in relation to apportionment of lump sum death benefit; disputed claim for interest by applicant, second respondent, and third respondent; consideration of Haidary v Wandella Pet Foods Pty Ltd, Kaur v Thales Underwater Systems Pty Ltd, Kathryn Ann Kratz as Executrix of the Estate of the Late Owen Beddall v Qantas Airways Limited; Held – award of interest on lump sum awarded to applicant, second respondent, and third respondent, from date that particulars of dependency were provided, at a rate that is 2% above Reserve Bank of Australia cash rate.
DETERMINATIONS MADE:	The Commission determines: 1. Pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998, the first respondent is to pay the applicant interest on the lump sum of $689,880 at the rate of 6.35% per annum for the period from 10 October 2024 to 13 January 2025, in the amount of $11,521.92. 2. Pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998, the first respondent is to pay the second respondent interest on the lump sum of $86,235 at the rate of 6.35% per annum for the period from 4 December 2024 to 13 January 2025, in the amount of $615. 3. Pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998, the first respondent is to pay the third respondent interest on the lump sum of $86,235 at the rate of 6.35% per annum for the period from 28 October 2024 to 13 January 2025, in the amount of $1,170. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The worker, Victor Joseph West, died on 9 May 2022 as a result of injury on 20 March 2016, arising out of or in the course of his employment with the first respondent, Tox Free Australia Pty Ltd.
By letter dated 3 July 2023, solicitors acting for the applicant, Colleen Theresa Mary West (Ms West), made a claim on AAI Limited trading as GIO (GIO), the first respondent’s insurer, pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act) for the lump sum death benefit of $862,350. Ms West’s solicitors advised that Ms West would allege she was totally dependent on the worker at the time of his death.
By letter dated 17 July 2023, the applicant’s solicitors sent to the solicitors acting for the first respondent copies of invoices for the worker’s funeral expenses; the birth certificates of the second and third respondents; and the marriage certificate of the applicant and the worker.
By email dated 10…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWPIC 43
Decision Date: 11 February 2025

CaseChat Overview and Summary

The case of West v Tox Free Australia Pty Ltd involved a dispute regarding the apportionment of a lump sum death benefit under workers compensation law. The applicant, second respondent, and third respondent were contesting the claim for interest on the lump sum. The court had to determine whether the interest should be awarded and, if so, the rate and date from which it should accrue. This case was heard in the relevant court, which was tasked with resolving the legal issues surrounding the interest on the death benefit.

The primary legal issue was the calculation and entitlement to interest on the lump sum awarded to the dependents of the deceased worker. The court had to consider previous cases such as Haidary v Wandella Pet Foods Pty Ltd, Kaur v Thales Underwater Systems Pty Ltd, and Kathryn Ann Kratz as Executrix of the Estate of the Late Owen Beddall v Qantas Airways Limited to determine the appropriate legal principles and precedents. The court needed to decide whether the interest should be calculated from the date the lump sum was paid or from the date particulars of dependency were provided, as well as the appropriate interest rate.

The court found that interest should be awarded on the lump sum death benefit from the date particulars of dependency were provided, at a rate that is 2% above the Reserve Bank of Australia cash rate. The court relied on the aforementioned precedents to justify this decision, considering the equitable treatment of the dependents and the nature of the lump sum benefit. The court concluded that the interest should accrue from the date particulars of dependency were provided, as this was the point at which the dependents could reasonably be expected to have knowledge of the claim and its status.

The court ordered that interest on the lump sum death benefit be awarded to the applicant, second respondent, and third respondent from the date particulars of dependency were provided, at a rate that is 2% above the Reserve Bank of Australia cash rate. This decision provides clarity on the calculation and entitlement to interest in workers compensation cases involving death benefits, ensuring that dependents are appropriately compensated.

Orders