Wilson v State of New South Wales
[2022] NSWPIC 396
•20 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Wilson v State of New South Wales & others [2022] NSWPIC 396 |
| APPLICANT: | Megan Ann Wilson |
FIRST RESPONDENT: | State of New South Wales |
SECOND RESPONDENT | Sara Kate Wilson |
THIRD RESPONDENT: | Brooke Elizabeth Wilson |
FOURTH RESPONDENT: | Emma Catherine Wilson |
| PRINCIPAL MEMBER: | Josephine Bamber |
| DATE OF DECISION: | 20 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Apportionment of lump sum death benefit pursuant to section 25 of the Workers Compensation Act 1987 (1987 Act); Held - the deceased worker died from injury sustained in the course of his employment; compensation payable by the employer in accordance with section 25(1)(a) of the 1987 Act; lump sum to be apportioned between dependents. |
| DETERMINATIONS MADE: | 1. That the deceased worker, Craig Eric Wilson, died approximately on 13 April 2021 from injury sustained in the course of his employment with the State of New South Wales. 2. That the compensation payable by the employer, State of New South Wales, in accordance with section 25(1)(a) of the Workers Compensation Act 1987 on the death of the deceased is $838,750. 3. That Megan Ann Wilson, his wife, Sara Kate Wilson, Brooke Elizabeth Wilson and Emma Catherine Wilson his daughters, were dependent for support upon the deceased worker at the date of his death. 4. That there were no other persons dependent for support upon the deceased worker at the date of his death. 5. Pursuant to section 29 of the Workers Compensation Act 1987 the apportionment of payments between the dependents is as follows: a. Megan Ann Wilson 65% of the lump sum being $545,187.50; b. Sara Kate Wilson 10% of the lump sum being $83,875; c. Brooke Elizabeth Wilson 10% of the lump sum being $83,875; and d. Emma Catherine Wilson 15% of the lump sum being $125,812.50. 6. Pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998 the first respondent is to pay interest at the rate of 2% on the total lump sum for the period 16 November 2021 to the date of this determination to be paid in the same pro-rata percentages as referred to above to each of the dependents. 7. That the first respondent is to pay to Megan Ann Wilson the sum of $545,187.50 plus pro-rata interest. 8. That the first respondent is to pay to Sara Kate Wilson the sum of $83,875 plus pro-rata interest. 9. That the first respondent is to pay to Brooke Elizabeth Wilson the sum of $83,875 plus pro-rata interest. 10. Pursuant to section 85 of the Workers Compensation Act 1987 the first respondent is to pay to the New South Wales Police Legacy Limited the sum of $125,812.50 to be invested on behalf of Emma Catherine Wilson together with pro-rata interest. 11. The first respondent is to pay the costs as agreed or assessed of the applicant and the second, third and fourth respondents. 12. That all parties are to have an uplift on the costs that otherwise would be payable to them of 20% for complexity, noting the additional material obtained and considered by all parties. |
STATEMENT OF REASONS
BACKGROUND
Mr Craig Eric Wilson was employed by the applicant, State of New South Wales (first respondent), as a police officer with NSW Police. He sustained a psychological injury and he died on 13 April 2021 in circumstances that the first respondent accepts were as a result of his workplace injury[1].
[1] See s 78 notice dated 9 February 2022.
As the first respondent has admitted liability for compensation flowing from Mr Wilson’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) has been filed by
Ms Megan Ann Wilson, his widow, and 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), being $838,750.Sara Kate Wilson, Brooke Elizabeth Wilson and Emma Catherine Wilson are the second, third and fourth respondents respectively, they are the daughters of the deceased and Megan Ann Wilson. They also seek for the Personal Injury Commission (the Commission) to apportion the lump sum death benefit.
Claims have also been made for interest and costs, as well as an application for an uplift on costs for complexity.
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. They have come to an agreement in relation to the proposed apportionment.
A teleconference was held by me with the parties on 14 June 2022. Mr Bruce McManamey, counsel, instructed by Ms Fran Smith, solicitor appeared for Megan Ann Wilson, who was present. Mr Greg Young, counsel, appeared for Sara Kate Wilson, who was present.
Ms Nicole Compton, counsel, appeared for Brooke Elizabeth Wilson and Mr Ross Stanton, counsel, appeared for Emma Catherine Wilson. Ms Alison Wilson also attended as “next friend” for Emma Catherine Wilson, although I note the Commission does not have power to appoint a tutor for a minor in workers compensation proceedings. Ms Emily Angwin, solicitor, instructed by Mr Paul Leonard, from the insurer, appeared for the first respondent.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) the Application;
(b) first respondent’s Reply;
(c) second respondent’s Reply;
(d) third respondent’s Reply; and
(e) fourth respondent’s Reply.
There was no oral evidence.
FINDINGS AND REASONS
Having considered all of the documents in evidence, I accept that Megan Ann Wilson and all of the children were dependent on the deceased for support at the date of his death.
The Application states an apportionment is sought by each dependent in the following percentages:
(a) Megan Ann Wilson 65%;
(b) Sara Kate Wilson 10%;
(c) Brooke Elizabeth Wilson 10%, and
(d) Emma Catherine Wilson 15%.
Sara is presently aged 23 years and studying at university and now has some part time employment. Brooke is aged 20.5 years and is studying at university and works part time. Emma is 14 years old and is a high school student. Detailed particulars in relation to these matters are contained in the statement of their mother dated 22 April 2022, also in Brooke’s statement dated 10 June 2022 and Sara’s statement dated 9 June 2022. I will not summarise the contents of these statements in these reasons to protect their privacy.
I consider, and find, that this proposed apportionment is in the range of a sound apportionment of the lump sum, and I make orders accordingly.
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. I note the contents of the statutory declaration of the deceased’s mother dated 23 March 2022, that she does not consider herself to be a dependent and she makes no claim for compensation.
Emma’s counsel has submitted that instead of the Commission following its usual practice of ordering the share of the lump sum apportioned to a minor to be paid to the NSW Trustee and Guardian, the Commission should in this case order the payment be made and invested with NSW Police Legacy Limited. It was submitted that there is greater flexibility in dealing with that organisation and an advantage because they will hold the funds for Emma’s benefit until turns 21. In addition, the likely fees are more modest than NSW Trustee and Guardian.
A statement has been provided by Ms Smith, solicitor, setting out the fees of the NSW Trustee and Guardian and attaching the NSW Police Legacy Trust Fund Administration Policy and the Death Benefit Scheme Trust Deed between Police Association of New South Wales and New South Wales Police Legacy Limited dated 29 September 2014.
Ms Smith states:
“12. The purpose of the Death Benefit Scheme Trust is for NSW Police Legacy to administer Trust funds for the benefit, maintenance, education and/or advancement of the beneficiary. All funds held in the Trust, together with the interest accrued, is paid back to the beneficiary upon attaining the age of 21 years.
13. Based on the Death Benefit Scheme Trust Deed, there is an establishment fee of $10.00 to commence the Trust which is paid by the Police Association of New South Wales. NSW Policy Legacy may also charge a fee for the administration of the Trust Fund however this charge is not to exceed 5% of the income annually arising from the Fund.
14. On this basis, it is requested that the Commission order that Emma’s apportionment from the lump sum death benefit be paid to a Trust Fund administered by NSW Police Legacy.”
Having considered these documents, I am persuaded that this is an appropriate organisation for Emma’s fund to be invested with and that they will be appropriately invested, managed and safely preserved for her benefit.
Interest
In the Application form on page 4 a claim was made for interest at 4.1% from 18 May 2021, being the date the claim was made.
The first respondent argued that the delay was caused by factors outside the control of the insurer and the coroner’s report was only issued in November 2021. It also pointed to delays in filing the Application. The first respondent submitted interest should be payable in the total sum of $3,906.50 from 16 November 2021, when the coroner’s report was obtained, to
9 February 2022, when the insure admitted liability. This has been calculated at the rate of 2% for 85 days. It is to be apportioned to each dependent in pro-rata shares in the same percentages as apportioned in relation to the lump sum.Ms Compton suggested interest should be payable from 16 November 2021 to 14 June 2022 being 210 days at the rate of 2% or $45.96 per day, equating to $9,651.37.
The awarding of interest is a discretionary decision. I find interest should be payable at the rate of 2% because of the comparatively low cash rate in the relevant period. I order interest be payable from 16 November 2021 to the date of this certificate of determination, payable in pro-rata proportions in the same percentages as the apportionment of the lump sum. While the respondent argued there was delay in filing the application, I do not consider it was significant and the reality is that the respondent has had the benefit of the funds in the interim. I find it is appropriate to date the interest from the time the coroner’s report was available because until that time liability was not clear.
Costs
As the deceased was employed as a police officer the claim is an exempt one pursuant to Schedule 6, Part 19I, cl 14 (2) of the 1987 Act and accordingly the Commission has the jurisdiction to make a costs order in this matter.
The first respondent has agreed to pay the costs as agreed or assessed of the applicant and the second, third and fourth respondents.
The applicant and the second, third and fourth respondents jointly made an oral application at the telephone conference for an uplift on their costs due to complexity. The first respondent made no submissions. It was submitted that the applicant had to obtain a considerable amount of documentation including the coroner’s report that ultimately led to the first respondent admitting liability, in addition steps have been taken to in relation to drafting a trust deed in relation to the investment of the lump sum apportioned to Emma and consideration of the claim for interest. Thirty per cent uplift for complexity was sought.
Having taken into account these matters, I accept the preparatory work undertaken has contributed to liability being admitted and this has resulted in considerable savings of costs and time to the parties and the Commission. I consider that an uplift of 20% on the costs otherwise payable to the parties is justified and that all parties should receive this uplift because the other parties had to consider this material.
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