West v Tox Free Australia Pty Ltd
[2025] NSWPIC 43
•11 February 2025
| 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 August 2023, the solicitors for the first respondent requested particulars of the claim, including particulars of dependency.
By letter dated 16 August 2023, the applicant’s solicitors advised that the applicant was dependent on the worker. The two children of the marriage, the second respondent (Nathan Victor West) and the third respondent (Kelly Maree Elliott) were partly dependent on the worker. The applicant was not aware of any other dependants.
By letter dated 1 November 2023, the first respondent’s solicitors requested that the applicant return to them a signed copy of her GIO CTP nervous shock claim.
On 28 November 2023, GIO issued the applicant with a notice (dated 27 November 2023), pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
GIO disputed that the worker’s death resulted from an injury covered by workers compensation; and that the worker’s employment was the main contributing factor to the contraction, or aggravation, acceleration, exacerbation or deterioration of the injury. GIO maintained that the worker’s death resulted from an injury that was intentionally self-inflicted, and therefore s 14(3) of the 1987 Act applied to the claim.
GIO disputed liability for the lump sum death benefit, weekly payments to any eligible dependants, and funeral expenses.
By email dated 16 September 2024, the first respondent’s solicitors advised the applicant’s solicitors that they had been instructed to accept liability for “s 25 death benefits”.
The applicant lodged an Application in Respect of Death of Worker (the Application) on 10 October 2024.
The third respondent lodged her Reply on 28 October 2024.
The first respondent lodged its Reply on 4 November 2024.
The second respondent lodged his Reply on 4 December 2024.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) whether the first respondent is liable for payment of interest on the lump sum death benefit, and, if so, the rate/s at which and the period/s for which interest is to be awarded.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)
The matter was listed for preliminary conference on 13 January 2025. Mr Groves appeared for the applicant. Mr Studdert appeared for the first respondent. Mr Burston appeared for the second respondent. Mr Morson appeared for the third respondent. Ms Menchin of GIO and Ms Dean of icare also attended.
The parties had agreed on a proposed apportionment of the lump sum death benefit. I was satisfied that the proposal was appropriate, and findings and orders were made in respect of the lump sum death benefit.
The parties were unable to agree on a resolution of the claim for interest on the lump sum death benefit.
Directions were made for the parties to provide written submissions on the issue of interest. They were advised that on receipt of the submissions, I would make a decision “on the papers”.
Submissions have now been received in accordance with my directions. The applicant made submissions on her own behalf, and on behalf of the second and third respondents. The applicant advised the Commission that she did not wish to make any submissions in reply to the first respondent’s submissions.
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. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents;
(b) Reply by first respondent and attached documents;
(c) Reply by second respondent and attached documents, and
(d) Reply by third respondent and attached documents.
Oral evidence
There was no application to call oral evidence.
FINDINGS AND REASONS
Much of the evidence is not relevant to the issue I must decide. I will refer to the relevant evidence.
Evidence of the applicant, Colleen Theresa Mary West
Ms West’s first statement is dated 18 May 2023.
The applicant met the worker in about 1973 and they were married in 1976, when the applicant was 21-years-old.
The second respondent was born in 1977, and the third respondent was born in 1980.
From the time the applicant met the worker, the worker was always in steady employment.
The remainder of the statement is directed at establishing liability for the worker’s death.
There is no evidence in the applicant’s first statement as to the extent of her dependency, if any, on the worker.
The applicant’s second statement is undated, although according to the index to the Application it is dated 3 October 2024.
The applicant had worked for IGA Supermarket on a permanent part-time basis for about 15 years, working 20 hours per week.
From about 2014 to about 2018, the applicant worked for Pace Farms as a cleaner, working 20 hours per week.
Before the worker’s injury, he paid most of the home bills and accounts. The applicant paid for food and some smaller expenses.
From about 2000, the applicant and the worker lived in her current home and had no ongoing mortgage.
For most of their married life, the applicant and the worker had separate bank accounts. Neither had a credit card. They both had savings. The worker paid the bills, did the banking, and controlled their money and finances.
The worker looked after all outdoor maintenance, mowed the lawns, and kept the gardens neat and tidy. He spent a lot of time cleaning and maintaining his vehicles.
The applicant ceased work in 2018 to help look after the worker and his elderly mother. The applicant was then completely dependent on the worker’s compensation payments. She received a small carer’s pension for assisting the worker’s mother.
At some stage after the worker’s injury, he and the applicant set up a joint account, from which they paid household bills. The only money going into the account was from the worker’s compensation claim.
The applicant provided details of the worker’s immediate family. The applicant had had no contact with any family member, other than his mother, for many years.
Evidence of the third respondent, Kelly Maree Elliott
Ms Elliott’s statement is dated 5 October 2024.
The third respondent resides with her husband. They have three children, who at that time were aged 20, 18, and 5.
The third respondent, the applicant, and the second respondent had a good, healthy relationship. Before the worker’s death, they would have regular dinners and lunches, and her parents were always involved on special occasions.
The third respondent was aware that the worker had four siblings. She did not consider that the worker had a close relationship with them. She did not think there was any financial dependence upon them [sic].
Evidence of the second respondent, Nathan Victor West
Mr West’s statement is dated 3 December 2024.
The second respondent lives with his partner. They have two children, neither of whom is dependent on them.
Mr West was previously a gyprocker. He currently works part time in a tattoo shop owned by his sister and brother-in-law.
In 2014, the second respondent had a motorcycle accident. He suffered serious injuries and became a paraplegic. Prior to 2014, he was self-sufficient, but saw his parents every day or every second day.
After the accident, the worker provided the second respondent with enormous emotional support. The worker paid for shopping and other requirements, as the second respondent’s partner had stopped work to care for him.
The worker and the applicant assisted Mr West and his partner financially when they could. The worker walked their dogs and took Mr West to the gym five days per week.
Both the second respondent’s parents, and particularly his father, were there to provide for his needs and assistance. This included cooking meals twice per week. They also provided assistance with travel to medical appointments.
The second respondent received a significant settlement as a result of his accident. He used part of the funds to pay off the mortgage on their current premises and invested some of the monies.
The second respondent’s insurance policy ceased providing coverage once he received the settlement as a result of his accident.
The second respondent and his partner lived predominantly on his partner’s income. She worked a few days a week and received a carer’s allowance. He received some minor income from his employment at the tattoo shop. They had not had to dip into the money he had invested.
The second respondent had no special needs, apart from the normal range of medical appointments he needed to attend.
SUBMISSIONS
As the parties rely on written submissions, which remain with the Commission file, I will provide only a brief summary.
Applicant
The applicant referred to her solicitors’ letter dated 3 July 2023 to GIO and the solicitors for the first respondent, and further documentation provided on 17 July 2023.
The applicant submitted that she did not receive any request for particulars of her dependency, or that of the second and third respondents, on the worker.
The applicant submitted that the dispute notice issued by GIO did not plead [sic] that the applicant was not dependent on the worker.
The applicant submitted that, at the preliminary conference on 13 January 2025, the parties agreed on the rate of interest. The question was when interest commenced to run.
The applicant conceded that the ambit of the otherwise wide discretion to award interest is confined by reason of s 109(2)(b) of the 1998 Act.
The applicant referred to the decisions of Senior Member [sic: Principal Member] Bamber in Thompson v Nationwide News Pty Limited[1] and my decision in BFG v Polyfoam (Sydney) Pty Limited & Ors.[2]
[1] [2022] NSWPIC 661.
[2] [2022] NSWPIC 724.
The applicant submitted that full particulars were provided by 17 July 2023. The first respondent should pay the applicant, the second respondent, and the third respondent, interest on their respective allowances from 17 July 2023 to the date of payment.
The applicant submitted that at no time after 17 July 2023 did the first respondent seek any further particulars regarding dependency. GIO’s silence was “telling”, given that relevant details of all dependants who were the subject of the apportionment orders were supplied on 17 July 2023.
The applicant submitted that the statutory declarations or statements attached to the Application and Replies were no more than “confirmatory evidence” as to dependency.
First respondent
The first respondent submitted that an order of interest is discretionary; and its purpose is to compensate an applicant for loss of income, not to punish the employer or insurer.[3]
[3] Haidary v Wandella Pet Foods Pty Ltd [2005] NSWWCCPD 9 (Haidary).
The first respondent submitted that s 109(2)(b) of the 1998 Act precludes interest being ordered prior to a claim being “duly made”.
The first respondent referred to the decisions in Kaur v Thales Underwater Systems Pty Ltd;[4] Kathryn Ann Kratz as Executrix of the Estate of the Late Owen Beddall v Qantas Airways Limited;[5] Hu v Rongfar Property Services Pty Ltd;[6] and Youseph v Homebush Unit Trust t/as Primo Smallgoods.[7]
[4] [2011] NSWWCCPD 6 (Kaur)
[5] [2020] NSWWCC 36 (Kratz).
[6] [2021] NSWPIC 95.
[7] [2021] NSWPIC 299.
The first respondent submitted that in the event interest is payable, it should be payable from the date that statements were filed in the proceedings before the Commission, as follows:
(a) applicant: 10 October 2024;
(b) second respondent: 3 December 2024 [sic: 4 December 2024], and
(c) third respondent: 28 October 2024.
The first respondent submitted that the material attached to the applicant’s correspondence dated 3 July 2023 was insufficient to “duly make” a claim. The provision of notice of a claim and assertions of dependency does not constitute evidence in support of the fact.
The first respondent submitted that, at the very least, the Registrar’s Practice Guide for Death Claims should be seen as providing guidance as to the evidence required to constitute a duly made claim.
The first respondent submitted that, as the second and third respondents are adults, any suggestion that merely because they were the worker’s children, they were dependent on him, is rejected. Evidence as to the nature and extent of their dependency was required for them to duly make a claim.
The first respondent submitted that it is relevant to consider the complex liability issue in this matter. There was a need for evidence going to the worker’s past history of psychological illness, which made determination of liability complicated.
The first respondent disputed the suggestion that a failure to request particulars of dependency should be seen as some concession that a claim had been duly made. It is up to those making claims to provide evidence in support of their claims. It is not up to the insurer or its representative to advise experienced practitioners how to duly make a claim. The Commission, through its Practice Guide for Death Claims, provides assistance in this regard.
As to the rate at which interest should be payable, the first respondent submitted that the Commission should consider the actual rates of interest offered by the banks, which are consistent with the cash rates published by the Reserve Bank of Australia (RBA).
The first respondent referred to the decisions in Powell v McClenahan & Ors;[8] Aseru Facility Services Pty Ltd v Harrison & Ors;[9] and Rogers v State of New South Wales (Northern NSW Local Health District) & Ors.[10]
[8] [2024] NSWPIC 139.
[9] [2023] NSWPIC 629.
[10] [2023] NSWPIC 398.
The first respondent submitted that the rate of interest, if any, should be no more than 2% above the RBA cash rate, consistent with recent Commission decisions and the interest rates on deposits offered by banks.
SUMMARY
Section 109 of the 1998 Act provides:
“109 Interest before order for payment
(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.”
As the respondent submitted, the power to award interest is discretionary. It is subject to the limitations imposed by ss 109(2) and 109(3) of the 1998 Act. While the discretion is a wide one, the facts of the matter under consideration must be considered.
Section 109(2) of the 1998 Act provides that interest cannot be ordered on any compensation payable for any period before a claim for compensation was duly made.
In Haidary, Deputy President Fleming discussed the reasoning behind an award of interest. Fleming DP said:
“The award of interest by the Commission, pursuant to section 109 of the 1998 Act is discretionary. Mr Haidary will only be entitled to interest, if awarded, on those amounts of his weekly entitlement that were unpaid, and only from the date that his claim ‘was duly made’. The likely amount of interest that would be due on these sums is small, relative to the whole of his claim, but nonetheless they may form part of Mr Haidary’s entitlement. The purpose of ordering interest on an award is to compensate the worker for the loss of his or her income, not to penalise the employer (Virag v James N Kirby t/as Betts Electric Motors; Healey v McPherson Binding Pty Ltd.” (Citations omitted.)
President Keating considered the application of s 109(2)(b) in Kaur.
Keating P said, 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.”
“Duly made” has been held to mean “fully particularised” – see for example Kratz, and the cases discussed therein.
I do not accept the applicant’s submission that full particulars of the claim were provided by 17 July 2023.
Particulars of dependency were not provided until the applicant lodged the Application on 10 October 2024; the second respondent lodged his Reply on 4 December 2024; and the third respondent lodged her Reply on 28 October 2024.
The applicant’s first statement provided no evidence as to the extent of her dependency, if any, on the worker.
The second respondent and the third respondents are both adults. There is no presumption that they would have been dependent on the worker.
The applicant’s submission that, because particulars of dependency were not requested, that should somehow be construed as a concession that the claim had been fully particularised, is rejected. As the first respondent submitted, it is those who are making claims who are required to provide evidence in support of those claims.
The evidence attached to the Application and the Replies of the second and third respondents was not no more than “confirmatory evidence”. It was the first evidence that supported the claims of dependency on the worker.
I am prepared to exercise my discretion to award interest on the lump sum death benefit from the dates on which the claims were duly made. The applicant’s submission that interest should be paid until the date of payment overlooks s 109(1) of the 1998 Act and is rejected. Interest will run to 13 January 2025, when the orders for payment of the lump sum death benefit were made.
I have recorded that the parties agreed at the preliminary conference that the appropriate rate at which to award interest, should it be awarded, is a rate that is 2% above the relevant RBA cash rate.
The first respondent has not referred to this agreement, but in any event has submitted that a rate that is 2% above the RBA cash rate is appropriate, and I propose to adopt that rate.
The first respondent is to pay interest on the lump sum death benefit as follows:
(a) to the applicant: from 10 October 2024 to 13 January 2025 at the rate of 6.35% per annum;
(b) to the second respondent: from 4 December 2024 to 13 January 2025 at the rate of 6.35% per annum, and
(c) to the third respondent: from 28 October 2024 to 13 January 2025 at the rate of 6.35% per annum.
The orders are set out in the Certificate of Determination.
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