Wright v Opalite Industries Pty Ltd & Ors

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Wright v Opalite Industries Pty Ltd & Ors [2023] NSWPIC 659
APPLICANT:	Josie Wright
FIRST RESPONDENT:	Opalite Industries Pty Limited
SECOND RESPONDENT:	Ava Grace Husar by her tutor Judith Surace
THIRD RESPONDENT:	Eliza Judith Husar by her tutor Trudy Ann Bourke
MEMBER:	Gaius Whiffin
DATE OF DECISION:	8 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for benefits in respect of the death of a worker; apportionment of lump sum payable under section 25(1)(a); consideration of statements and statutory declarations, claim correspondence, and factual material; consideration of who was dependent for support on the worker at the date of his death; TNT Group 4 Pty Limited v Halioris considered; consideration of appropriateness of apportionment agreed between the parties; Held – no other persons but the applicant, the second respondent and the third respondent were dependent for support on the worker at the date of his death; the apportionment of the lump sum under section 25(1)(a) as agreed between the parties is approved; awards entered in favour of the applicant, the second respondent, and the third respondent (including amounts for fund management fees in relation to the second respondent and the third respondent in accordance with section 25(1A)); awards also entered with the agreement of the parties in relation to the worker’s funeral expenses pursuant to section 26 of the 1987 Act, and in relation to the weekly payments payable to the second respondent and the third respondent pursuant to section 25(1)(b).
DETERMINATIONS MADE:	The Commission determines: 1. That Edward Anthony Husar (the worker) died on 15 August 2020 as a result of injury arising out of or in the course of his employment with the first respondent, pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act). 2. That the applicant was dependent on the worker for support. 3. That the second respondent was dependent on the worker for support. 4. That the third respondent was dependent on the worker for support. 5. That there were no other persons dependent for support on the worker. 6. That the first respondent is liable to pay the amount of $827,400 pursuant to s 25(1)(a) of the 1987 Act. 7. That the amount of $827,400 is to be apportioned as follows, pursuant to s 29 of the 1987 Act: (a) applicant – 55%; (b) second respondent – 22%, and (c) third respondent - $23%. The Commission orders: 8. The Application to Resolve a Dispute is amended to appoint Judith Surace as the tutor for the second respondent. 9. The Application to Resolve a Dispute is amended to appoint Trudy Ann Bourke as the tutor for the third respondent. 10. Pursuant to ss 25 and 85A of the 1987 Act, the first respondent is to pay the applicant the amount of $455,070. 11. Pursuant to ss 25 and 85 of the 1987 Act, the first respondent is to pay the NSW Trustee and Guardian in trust for the benefit of the second respondent the amount of $182,028. 12. Pursuant to ss 25 and 85 of the 1987 Act, the first respondent is to pay the NSW Trustee and Guardian in trust for the benefit of the third respondent the amount of $190,302. 13. The first respondent is to pay funeral expenses to the applicant, pursuant to s 26 of the 1987 Act, up to the amount of $15,000 upon production of accounts or receipts. 14. Pursuant to s 25(1)(b) of the 1987 Act, the first respondent is to pay weekly compensation in respect of the second and third respondents, at the rates specified from time to time in the SIRA Benefits Guide, from 15 August 2020 to date and on a continuing basis. 15. The first respondent is to pay, pursuant to s 25(1A) of the 1987 Act, the following amounts in relation to fees concerning investing or otherwise managing the amounts referred to at orders 11-12 above: (a) in relation to the second respondent – $41,833.11, and (b) in relation to the third respondent – $44,399.35. The Commission notes: 16. The parties have agreed that the first respondent has conceded liability and is to pay the compensation referred to at orders 10-15 above, on the basis that no interest is payable pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 on any of the amounts referred to in those orders.

STATEMENT OF REASONS

BACKGROUND

Edward Anthony Husar (the worker) died on 15 August 2020 allegedly as a result of injuries which he received on 24 April 2011 and 26 September 2017 in the course of his employment with Opalite Industries Pty Limited (the first respondent) as a production manager. It is alleged that following those injuries, he developed a consequential psychological condition involving alcohol abuse, which subsequently led to his death.
He was 47-years-old at the time of his death, and he lived with his de facto partner and his two children from his relationship with his de facto partner.
His de facto partner, Josie Wright, is the applicant. His eldest (currently 8-years-of-age) daughter, Ava Grace Husar, is the second respondent. She is represented by a tutor, being Judith Surace (who is the worker’s sister). His youngest (currently 6-years-of-age) daughter, Eliza Judith Husar, is the third respondent. She is represented by a tutor, Trudy Ann Bourke (who is her grandmother and the applicant’s mother).
The respondent initially denied liability for compensation flowing from the worker’s death, pursuant to Part 3 Division 1 of the Workers Compensation Act 1987 (the 1987 Act). It issued a notice in this regard on 8 July 2021, pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
By way of an Application in Respect of Death of Worker (ARDW) lodged with the Personal Injury Commission (the Commission) on 23 August 2023 (and later amended on 13 November 2023), the applicant seeks orders that a lump sum pursuant to s 25(1)(a) of the 1987 Act in the amount of $827,400 be paid by the first respondent (as apportioned between her, the second respondent, and the third respondent), and that the worker’s funeral expenses be paid pursuant to s 26 of the 1987 Act, as well as that weekly compensation be paid in relation to the second and third respondents pursuant to s 25(1)(b) of the 1987 Act.

ISSUES FOR DETERMINATION

The parties eventually agreed that the only issues requiring determination by the Commission were:
(a) Who was dependent for support on the worker at the date of his death?

(b) How should the amount of $827,400 be apportioned between those dependants, pursuant to s 29 of the 1987 Act?

PROCEDURE BEFORE THE COMMISSION

The ARDW proceeded to a conciliation/arbitration before the Commission on 5 December 2023. On that occasion, the applicant was represented by Mr Greg Schipp of counsel, instructed by Mr Blissett. The first respondent was represented by Mr Simon McMahon of counsel, instructed by Mr Nielsen. The second respondent was represented by Mr Simon Hunt of counsel, instructed by Mr Walker. The third respondent was represented by Mr Andrew Davis of counsel, instructed by Mr Watson. The applicant was present, as well as the tutors representing the second respondent and the third respondent.
The first respondent advised the Commission that it now accepted liability to pay compensation pursuant to Part 3 Division 1 of the 1987 Act, in relation to the worker’s death. It conceded liability to pay the amount of $827,400 in accordance with s 25(1)(a) of the 1987 Act, and it advised the Commission that it had agreed to pay the worker’s funeral expenses up to $15,000 in accordance with s 26 of the 1987 Act, as well as the weekly compensation claimed in relation to the second and third respondents in accordance with s 25(1)(b) of the 1987 Act.
The parties also asked the Commission to note that neither the applicant, the second respondent, nor the third respondent sought interest pursuant to s 109 of the 1998 Act, in relation to any amounts awarded to them pursuant to s 25(1)(a) of the 1987 Act.
The applicant, the second respondent, and the third respondent then advised the Commission that, subject to its approval, they had agreed on the apportionment of the lump sum payable pursuant to s 25(1)(a) of the 1987 Act between themselves, as follows:
(a)    applicant – 55% - an amount of $455,070;
(b)    second respondent – 22% - an amount of $182,028, and
(c)    third respondent – 23% - an amount of $190,302.
Due to the age of the second and third respondents, there was no dispute that the first respondent would be required to pay funds management fees in relation to any amounts awarded to them pursuant to pursuant to s 25(1)(a) of the 1987 Act, in accordance with s 25(1A) of the 1987 Act. The parties agreed that should the Commission find the above agreed apportionment to be appropriate, the amounts to be awarded pursuant to s 25(1A) would be calculated as:
(a) second respondent – $41,833.11, and
(b) third respondent – $44,399.35.
The sole issues (see paragraph 6 above) requiring determination by the Commission were then agreed upon between the Commission and the parties. In order to assist the Commission with these determinations, some oral evidence was led from Judith Surace at the conciliation/arbitration.
The parties confirmed that they each had no objection to the admission of the evidence lodged with the Commission by the other parties (including the applicant’s amended application lodged on 13 November 2023), and the parties also confirmed that they each had no objection to Judith Surace’s oral evidence. All parties further confirmed that they did not seek to make any specific submissions to the Commission.
The parties were read the determinations, orders and notations proposed by the Commission (see pages 1-2 of the Certificate of Determination) should it find that there were no persons dependent for support on the worker at the date of his death other than the applicant, the second respondent and third respondent; and should it also find the agreed apportionment of the lump sum payable pursuant to s 25(1)(a) of the 1987 Act to be appropriate. Neither party had any objection to those determinations, orders and notations being made in those circumstances.
I am grateful to the parties for their assistance, and in their provision of evidence. I am also grateful to them for the courteous and respectful manner in which they have conducted themselves.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the ARDW (as amended by the application lodged on 13 November 2023) and its attached documents (specifically a statement by the applicant, a statement by the worker prior to his death, the worker’s death certificate, and a statutory declaration from Judith Surace);
(b)    the applicant’s Application to Admit Late Documents dated 15 September 2023 (applicant’s AALD) and its attached documents (specifically the statutory declarations from Robert Husar and Judith Surace);
(c)    the first respondent’s Reply (first Reply) and its attached documents;
(d)    the second respondent’s Reply (second Reply) and its attached documents (specifically the second respondent’s birth certificate), and
(e)     the third respondent’s Reply (third Reply) and its attached documents (specifically the third respondent’s birth certificate, a statement by the applicant, and a statement by Trudy Ann Bourke).

Oral evidence

As noted, Judith Surace gave brief oral evidence on 5 December 2023. She was examined in chief by Mr Hunt. She was not sought to be cross-examined, but I did ask her some questions myself.

FINDINGS AND REASONS

Who was dependent for support on the worker at the date of his death?

Section 25 of the 1987 Act provides:
“(1) If death results from an injury, the amount of compensation payable by the employer under this Act shall be-
(a)the amount of $750,000 (the ‘lump sum death benefit’), which is to be apportioned among any dependants who are wholly or partly dependent for support on the worker or (if there are no such dependants) paid to the worker's legal personal representative…”
The amount of $750,00 has been indexed, and the parties have agreed that the correct amount to be awarded as at 15 August 2020 was $827,400.
Section 4 of the 1998 Act then defines a dependant as follows:
“‘dependants’ of a worker means such of the members of the worker's family as were wholly or in part dependent for support on the worker at the time of the worker's death, or would but for the incapacity due to the injury have been so dependent…”
I have carefully considered the statements in evidence from the applicant and Trudy Ann Bourke. Due to their age, the second and third respondents have not provided statements, but their dependency position is adequately addressed in the statements provided by the applicant, being their mother.
The applicant’s statement dated 16 September 2022 is found at page 1 of the ARDW. She was the de facto partner of the worker and had lived with him together since 1 July 2010. She says that prior to his injury on 24 April 2011, he would earn just over $1,100 per week from his employment. While she had to return to work herself following that injury, the worker received weekly benefits compensation between 2012 and his return to work in March 2017. He then worked again until his injury on 26 September 2017, following which he received weekly benefits compensation until his death. The applicant says that when the weekly benefits compensation ceased, it “left me as a single parent of two young children paying a high rent and trying to survive”.
In this regard, it is highly relevant to note that the applicant was forced to change her housing arrangements upon the worker’s death. As noted in the statement from Trudy Ann Bourke dated 8 September 2023 (at page 6 of the third Reply):
“After Josie’s partner, Eddie, died and it was clear that she could not afford the rent on their home alone, I suggested that Josie and the girls come to live with me. They moved into the house that I was occupying and I am now living in a granny flat just a short distance away”.
The applicant also explains (in her statement dated 8 September 2023 - at page 1 of the third Reply) that following the worker’s death, she “took on more work but the rent kept increasing and I couldn’t afford to stay in the house alone with the girls”. She says:
“At the time of Eddie’s death I was working as a part time service station attendant but our main income was Eddie’s workers compensation payments. I started doing two days a week and after he died and the workers compensation payments ceased I had to increase this to five days per week”.
The applicant says in her statement dated 16 September 2022 that the worker “was a good husband and father and enjoyed working and providing for his family. Eddy had a quiet personality and was family orientated. He was a good father and husband. He was very loyal and worked hard for long hours”.
I have no difficulties in finding that, in accordance with her uncontradicted evidence, the applicant was partly dependent on the worker for support during the entire period since 2010 when they lived together, and specifically as at the date of his death.
Likewise, I have no difficulties in finding that the second and third respondents (as young children) were totally dependent on their parents (both the worker and the applicant) for support. They lived together as a family, and it is clear from the statement evidence that, despite going through some incredibly difficult periods following the worker’s injuries on 24 April 2011 and 26 September 2017, the family was still a very close one. The applicant says that the family’s main income came from the worker’s income, clearly making all members of the family financially reliant upon the worker.
Further, the worker’s sister, Judith Surace, declares in her statutory declaration dated 20 April 2021 (at page 15 of the ARDW):
“From the time they entered a de facto relationship Josie and my late brother Edward remained a family unit. They attended family functions together and also joined larger family functions including those with my family and those with my late parents at their home”.
I find that the applicant, the second respondent, and the third respondent had reasonable expectations that the worker would provide support for them into the future. See TNT Group 4 Pty Limited v Halioris (1987) 8 NSWLR 486.
It now remains for me to determine whether there were any other persons who were dependent on the worker for support at the date of his death. In this regard, I note the following evidence:
(a)    in the applicant’s statement dated 16 September 2022, she says that the worker had no dependants other than herself and her two children - she says:
“I understand that Eddy’s parents are deceased. He has a sister in Sydney and a brother in East Maitland. He has no other children, and his brother and sister were not dependent upon him”;
(b)    Robert Husar (the worker’s brother) has provided a statutory declaration dated 1 September 2023 (at page 2 of the applicant’s AALD) in which he declares that he does not “believe that I was in any way dependent upon Edward”;
(c)    Judith Surace (the worker’s sister) has provided a statutory declaration dated 2 August 2023 (at page 4 of the applicant’s AALD) in which she declares that she does not “believe that I was in any way dependent upon Edward”, and
(d)    Judith Surace also gave oral evidence confirming:
(i)she and Robert Husar are the only surviving siblings of the worker’s;
(ii)her parents (also the worker’s parents) are deceased;
(iii)the worker was not married or in any relationship prior to his relationship with the applicant, and
(iv)the worker had no children other than the second and third respondents.
Relying upon this evidence (especially the evidence from Judith Surace, who being the worker’s elder sister, is placed in the best position to know his familial situation), I am satisfied that apart from the applicant and the second and third respondents, there were no parents, siblings, spouses, partners, children or others dependent on the worker for support at the date of his death.

How should the amount of $827,400 be apportioned between the applicant, the second respondent, and the third respondent?

Section 29 of the 1987 Act relevantly provides:
“(1) The compensation payable under this Division to each dependant of a deceased worker may be apportioned by the Commission or by the NSW Trustee.
(1A) The lump sum death benefit payable under this Division is not to be apportioned if a deceased worker leaves only one dependant (whether wholly or partly dependent on the worker for support) and the whole of the lump sum death benefit is to be paid to that one dependant.
(1B) In apportioning the lump sum death benefit payable under this Division between 2 or more dependants, the whole lump sum death benefit is to be apportioned among those dependants (so that the sum of the apportioned amounts equals the full lump sum death benefit).”
As indicated at paragraph 10 above, the applicant and the second and third respondents have agreed an appropriate apportionment of the lump sum payable under s 25(1)(a) of the 1987 Act. The agreement in this regard is:
(a)    applicant – 55%;
(b)    second respondent – 22%, and
(c)    third respondent – 23%.
I consider this proposed apportionment to be a sound apportionment of the appropriate lump sum having regard to the dependency level on the worker of each dependent. The apportionment allows the applicant to receive over one half of the lump sum, which is appropriate considering that at the time of the worker’s death, she had been living with the worker for over 10 years. There was no evidence before me that that arrangement was not likely to continue indefinitely. The applicant had a reasonable expectation of receiving substantial support from the worker for at least 20 years of his future working life. It is also important to note that the applicant was only 35 years old when the worker died.

The proposed apportionment also allows the second and third respondents to receive appropriate allowances for their financial dependence upon both the worker and the applicant, in that they were totally dependent upon the two of them at the date of the worker’s death. This level of dependence was likely to continue for many years, at least up until they had finished their studies and begun work. In this regard, at the date of the worker’s death, the second respondent was five years old and the third respondent was three years old.
The third respondent is to receive slightly more of the appropriate lump sum than the second respondent as she is two years younger than her. This is entirely appropriate.
There is no evidence before me that either the second respondent or the first respondent require any special needs. From the statement evidence of the applicant as well as the oral evidence from Judith Surace, they both seem to be reasonably healthy children.
I therefore propose to approve the apportionment agreed between the parties.

SUMMARY

In summary, I make the following formal findings:
(a) that the worker died on 15 August 2020 as a result of injury arising out of or in the course of his employment with the first respondent, pursuant to s 4 of the 1987 Act;
(b)    that the applicant was dependent on the worker for support;
(c)    that the second respondent was dependent on the worker for support;
(d)    that the third respondent was dependent on the worker for support;
(e)    that there were no other persons dependent for support on the worker;
(f)    that the first respondent is liable to pay the amount of $827,400 pursuant to s 25(1)(a) of the 1987 Act, and
(g)    that the amount of $827,400 is to be apportioned as follows, pursuant to s 29 of the 1987 Act:
(i)applicant – 55%;
(ii)second respondent – 22%; and
(iii)third respondent - $23%.
Considering my findings, there will be awards that the first respondent pay:
(a)    an amount of $455,070 to the applicant;
(b)    an amount of $182,028, together with agreed funds management fees of $41,833.11, to the NSW Trustee and Guardian in trust for the benefit of the second respondent, and
(c)    an amount of $190,302, together with agreed funds management fees of $44,399.35, to the NSW Trustee and Guardian in trust for the benefit of the third respondent.
Further, as agreed between the parties, there will also be awards that the first respondent pay:
(a) funeral expenses to the applicant, pursuant to s 26 of the 1987 Act, up to the amount of $15,000 upon production of accounts or receipts, and
(b) weekly compensation, pursuant to s 25(1)(b) of the 1987 Act, in respect of the second and third respondents, at the rates specified from time to time in the SIRA Benefits Guide, from 15 August 2020 to date and on a continuing basis.

Finally, I also note the agreement between the parties regarding neither the applicant, the second respondent nor the third respondent pursuing a claim for interest in relation to the amounts awarded to them.

[2023] NSWPIC 659

8 December 2023