CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Empire Fire and Safety Pty Ltd v Creagh [2023] NSWPIC 308	
		
APPLICANT:	Empire Fire and Safety Pty Ltd	
		
RESPONDENT:	Heidi Jane Creagh	
		
PRINCIPAL Member:	Glenn Capel	
		
DATE OF DECISION:	28 June 2023	
		
CATCHWORDS:	WORKERS COMPENSATION - Claim for statutory lump sum death benefit; determination of dependency, and payment of death benefit; TNT Group 4 Pty Limited v Halioris and Kaur v Thales Underwater Systems Pty Ltd discussed and applied; Held – no other persons dependent on the deceased; death benefit payable to respondent.	
determinations made:		

The Commission determines:
1.	The deceased worker, Michael James Creagh, died on 15 March 2023 as a result of injuries sustained during the course of his employment with the applicant.
2.	Heidi Jane Creagh was partly dependent for support upon the deceased at the date of death.
3.	The deceased had no other persons dependent on him.
The Commission orders:
4.	The applicant to pay the first respondent lump sum compensation of $871,200 pursuant to ss 25(1)(a) and 85A(1)(a) of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND
1.	The deceased worker, Michael James Creagh (the deceased), died on 15 March 2023 as a result of injuries sustained during the course of his employment with Empire Fire and Safety Pty Ltd (the applicant). 
2.	The deceased’s spouse, Heidi Jane Creagh (the respondent), submitted a fatality claim form to the applicant’s insurer, Employers Mutual NSW Ltd (the insurer) on 11 April 2023. 
3.	The insurer’s solicitor requested particulars of potential dependants from the respondent on 
2 June 2023.
4.	Liability was accepted by the second applicant pursuant to ss 25(a) and 26 of the Workers Compensation Act 1987 (the 1987 Act) on 2 June 2023, subject to a determination of potential dependants. 
5.	The applicant filed an Application in Respect of Death of Worker (the Application) in the Personal Injury Commission (the Commission) on 16 June 2023, seeking payment of the lump sum death benefit of $871,200 in accordance with s 25(1)(a) of the 1987 Act together with an order authorising payment of the lump sum to her pursuant to s 85A(1)(a) of the 1987 Act. 
PROCEDURE BEFORE THE COMMISSION
6.	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. The parties were advised of the intention to determine the dispute without holding a conciliation conference or arbitration hearing.
ISSUES FOR DETERMINATION
7.	The parties agree that the following issues remain in dispute:
(a)	whether there were any persons wholly or partially dependent on the deceased -
s 25 of the 1987 Act, and
(b)	orders in relation to payment of the compensation – s 85A(1)(a) of the 1987 Act.
EVIDENCE
Documentary evidence
8.	The following documents were in evidence before the Commission and taken into account in making this determination: 

(a)	Application and attached documents, and
(b)	Reply with attachments.
Oral evidence
9.	Neither party sought leave to adduce oral evidence or cross examine any witnesses.
REVIEW OF EVIDENCE
Respondent’s statutory declarations
10.	The respondent provided a statutory declaration on 8 June 2023. She confirmed that she had a strong marriage and they were emotionally dependent on each other. They had two children, Jack and Saffron.
11.	The respondent stated that the deceased had been the breadwinner and she was financially dependent on him. He paid for all of the household bills, grocery and credit card bills, the mortgage and all expenses associated with their cars The house, bank accounts and other assets were in their joint names.
12.	The respondent stated that at the time of his death, she was working part time for 22 hours per week as a School Learning Support Officer at a public school, earning about $700 gross per week. The deceased was working fulltime and was earning $1,250 nett per week.
13.	The respondent indicated that she had not yet been able to return to work due to her grief. She had exhausted all of her leave entitlements, she was not receiving any income, and she was experiencing financial difficulties. She was the sole beneficiary under her husband’s will and she had not yet received any payout from her husband’s insurance policy and superannuation fund.
14.	In her statutory declaration dated 19 June 2023, the respondent advised that at the time of her husband’s death, there were no other persons dependent on him.
Statutory Declarations
15.	Statutory declarations have been provided by the deceased’s son, Jack and his daughter, Saffron. They each advised that they had been advised of their rights by independent lawyers regarding a claim on the death benefit, but they did not wish to do so.
Documents
16.	The applicant has included copies of the deceased’s marriage and death certificates, the birth certificates of the two children, Jack (aged 22 years) and Saffron (aged 19 years) that are consistent with the respondent’s evidence.
SUBMISSIONS
17.	No submissions were made by the parties. Given the non-contentious nature of the matter, I am satisfied that the parties have considered their respective rights.

REASONS
Dependency
18.	In TNT Group 4 Pty Limited v Halioris (1987) 3 NSWCCR 10; 8 NSWLR 486, McHugh JA stated (at 489):
“Dependency is a question of fact: Potts v Niddre & Benhar Coal Co Ltd [1913] AC 531 at 539, 542; Aafjes v Kearney (1976) 50 ALJR 454 at 456, 457 and 459. It is concerned with actual and not theoretical support. A person claiming dependency need not be in actual receipt of support at the date of death. It is enough that, as at that date, he or she had a reasonable expectation of support in the future. Dependency may exist at the date of death although actual support cannot or is unlikely to occur until a future time.”
19.	Further, in Kaur v Thales Underwater Systems Pty Ltd [2011] NSWCCPD 6 (at [126] and [148]), President Keating stated (at [126]): 
“126. The question whether there is in fact dependence or reliance at the date of death is not to be answered by looking only to the circumstances as they existed at that date; ‘past events and future probabilities’ have to be considered. (Aafjes v Kearney 180 CLR 199; [1976] HCA 5; 8 ALR 455; 50 ALJR 454, 456, 457 and 459 (Aafjes)).”
20.	According to the respondent, she was dependent on the deceased for financial and other support. The deceased paid the mortgage and other household expenses. She was in part time employment, so in the circumstances, I am satisfied that the respondent was partly dependent on the deceased at the date of his death. 
21.	The deceased’s children have received independent legal advice about their rights, but it is clear that they do not wish to make a claim.
22.	In the circumstances, I am satisfied that there were no other persons wholly or partly dependent on the deceased at the date of death, so the lump sum death benefit of $871,200 payable pursuant to s 25(1)(a) of the 1987 Act will be paid to the respondent pursuant to s 85A(1)(a) of the 1987 Act.
FINDINGS
23.	The deceased worker, Michael James Creagh, died on 15 March 2023 as a result of injuries sustained during the course of his employment with the applicant.
24.	Heidi Jane Creagh was partly dependent for support upon the deceased at the date of death.
25.	The deceased had no other persons dependent on him.
ORDERS
26.	The applicant to pay the respondent lump sum compensation of $871,200 pursuant to ss 25(1)(a) and 85A(1)(a) of the 1987 Act.