CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Brakel v Sanctuary Contract Recruitment Pty Ltd & Ors [2024] NSWPIC 254	
		
APPLICANT:	Anthony Brakel	
		
FIRST RESPONDENT:	Sanctuary Contract Recruitment Pty Ltd	
		
SECOND RESPONDENT:	Noah Firdaus Brakel	
		
THIRD RESPONDENT:	Adam Jeffrey Brakel	
		
Member:	Rachel Homan	
		
DATE OF DECISION:	16 May 2024	
		
CATCHWORDS:	WORKERS COMPENSATION -  Workers Compensation Act 1987; application for apportionment of lump sum death benefit and funeral expenses in respect of the death of a worker; identification of dependants; Held – the applicant, second respondent and third respondent were the only dependants of the deceased worker; orders for payment of the lump sum pursuant to sections 25(1)(a), 29(1) and 85A; agreement on interest.
 	
determinations made:	By and with the consent of the parties, the Commission determines:
1.	Alina Brakel (the deceased worker) died on 29 March 2022 as a result of injury arising out of or in the course of her employment with the applicant.
2.	The applicant, second respondent and third respondent were each dependants of the deceased worker who were partly dependent for support upon the deceased worker at the date of her death.
3.	There were no other persons wholly or partly dependent for support upon the deceased worker at the date of death.
4.	The lump sum death benefit payable in accordance with s 25(1)(a) of the Workers Compensation Act 1987 is $849,300.
5.	The lump sum death benefit is apportioned pursuant to s 29(1) of the Workers Compensation Act 1987 as follows:
a.	$424,650 (50%) to the applicant;
b.	$212,325 (25%) to the second respondent, and
c.	$212,325 (25%) to the third respondent.
By and with the consent of the parties, the Commission orders:
1.	The first respondent to pay $424,650 to the applicant pursuant to s 85A(1)(a) of the Workers Compensation Act 1987.
2.	The first respondent to pay $212,325 to the second respondent pursuant to s 85A(1)(a) of the Workers Compensation Act 1987.
3.	The first respondent to pay $212,325 to the third respondent pursuant to s 85A(1)(a) of the Workers Compensation Act 1987.
4.	The first respondent to pay interest on the lump sum pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 at 2% above the Reserve Bank of Australia cash rate per annum as follows:
(a)	to the applicant, $5,319.18 for the period 5 March 2024 to 15 May 2024 (72 days);
(b)	to the second respondent, $3,435.30 for the period 13 February 2024 to 15 May 2024 (93 days), and
(c)	to the third respondent $4,395.71 for the period 18 January 2024 to 15 May 2024 (112 days). 
5.	No order as to funeral expenses.	

STATEMENT OF REASONS
BACKGROUND
1.	Mrs Alina Brakel (the deceased worker) died as a result of injury arising out of or in the course of her employment with Sanctuary Contract Recruitment Pty Ltd (the first respondent) on 29 March 2022. The deceased worker was 55 years old at the time of her death. 
2.	Liability to pay compensation in respect of the death has been accepted by the first respondent’s insurer.
3.	The deceased worker’s spouse, Mr Anthony Brakel (the applicant) lodged an Application in Respect of Death of Worker (the Application) in the Personal Injury Commission (the Commission) on 12 March 2024 seeking orders for apportionment and payment of the lump sum death benefit payable under s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act) as well as funeral expenses pursuant to s 26 of the 1987 Act. 
4.	The Application named the deceased worker’s adult children, Noah Brakel (second respondent) and Adam Brakel (third respondent), as the second and third respondents. 
PROCEDURE BEFORE THE COMMISSION
5.	The parties appeared at a preliminary conference on 15 May 2024.
6.	The applicant was represented by Mr Stephen Legzdin. The first respondent was represented by Ms Rosie Petrolo. The second respondent was represented by Ms Sharla Sutcliffe. The third respondent was represented by Ms Corrina Harris. 
7.	At the conference, the first respondent confirmed that liability to pay compensation in respect of the death had been accepted. 
8.	The legal representatives for the family members informed me that agreement had been reached with respect to a proposed apportionment of the lump sum. Payment was sought to the family members directly pursuant to s 85A of the 1987 Act. The parties also informed me that an agreement had been reached with respect to discretionary interest pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).
9.	The parties confirmed that there was no dispute in relation to the applicant’s or the second and third respondents’ dependence on the deceased worker. 
10.	I was also informed that funeral expenses had already been reimbursed pursuant to s 26 of the 1987 Act and no order in that respect was sought.
ISSUES FOR DETERMINATION
11.	The parties agreed that the following matters required determination:
(a)	identification of any family members who were wholly or partly dependent for support on the deceased worker in accordance with s 4 of the 1998 Act;
(b)	apportionment of the lump sum death benefit of $849,300; 
(c)	orders for payment of compensation, and
(d)	orders with respect to interest.
EVIDENCE
Documentary evidence
12.	The following documents were in evidence before the Commission and considered in making this determination: 
(a)	the Application and attached documents;
(b)	Reply lodged by the first respondent and attached documents;
(c)	Reply lodged by the second respondent and attached documents;
(d)	Reply lodged by the third respondent and attached documents, and
(e)	documents lodged under cover of an Application to Admit Late Documents lodged by the applicant on 1 May 2024.
13.	The evidence before me includes the New South Wales death certificate of the deceased worker, which identified the applicant as her spouse and the second and third respondents as her children.
14.	Evidence, in the form of signed written statements, has been lodged from the applicant and the second and third respondents confirming that they resided with the deceased worker and were partly dependent upon her for support as at the date of death. 
15.	The statement evidence from the applicant and death certificate identified Ms Mali Hasminah as the deceased worker’s mother. The deceased worker’s father was confirmed to be deceased. Two siblings were identified, a brother whose name was unknown and a sister known as “Aunty Lee”.
16.	A statutory declaration has been provided from Ms Hasminah, dated 29 April 2024, in which she confirmed that she was aware of the proceedings and had sought independent legal advice. Ms Hasminah indicated that although she received some financial support from the deceased worker she did not wish to make a claim for a portion of the death benefit now or in the future. 
FINDINGS AND REASONS 
Dependants
17.	The term, ‘dependants’ is defined in s 4 of the 1998 Act as:
“…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.”
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.	In Richardson v Turfco Australia Pty Ltd [2016] NSWWCCPD 43 (Richardson), Keating P identified a number of general statements of principle for determining dependency at [65]:
“(a) 	dependency is not limited to the class of persons actually in receipt of financial assistance (Sadiq);
(b) 	dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased (Amaca Pty Ltd v Novek [2009] NSWCA 50);
(c) 	although dependency is not limited to financial dependency, it does involve one person being beholden to another for some material or physical help or succour, emotional dependency is not enough (Skinner);
(d) 	‘dependent’ in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed (Petrohilos);
(e) 	a mother’s services to a young child may satisfy the test of dependency. To suggest that, in a money sense they are valueless, is simply wrong (Petrohilos);
(f) 	while one of the commonest forms of dependence might be financial dependence, the word used in the statute (which I infer is the Conveyancing Act 1919) is not limited to financial dependence (Williams), and
(g)	the word ‘partly’ in the phrase ‘partly dependent’, whilst a word of ‘some elasticity’, does not mean ‘substantially’, but means ‘more than minimally’, or perhaps, ‘significantly’ (Bremner v Graham [2016] NSWSC 633 at [34] citing Priestley JA at [4] (with whom Hope AJA agreed) in McKenzie v Baddeley [1991] NSWCA 197) (McKenzie)). Meagher JA, in McKenzie at [6], commented that ‘[c]ommon sense requires that certain trivial activities should be disregarded’.”
20.	I am satisfied on the uncontradicted evidence before me that the applicant was the deceased worker’s spouse and that the second and third respondents were her children and therefore members of her family. 
21.	I am also satisfied on the uncontradicted statement evidence before me that the applicant, second and third respondents were each partly dependent for support on the deceased worker at the date of her death. 
22.	I am further satisfied that appropriate enquiries have been made and there is no evidence of any other person, who may have been dependent on the deceased worker at the time of her death. 
23.	I am satisfied that the deceased worker’s father and grandparents are deceased. I am satisfied that the deceased worker’s mother is aware of the proceedings and, after seeking, independent legal advice, has confirmed that she does not wish to claim a portion of the lump sum.
24.	Relying on the statement evidence of the applicant, I am satisfied that the deceased worker was estranged from her brother for the duration of her 26 year marriage to the applicant. There is no evidence before me which would suggest that the deceased worker’s brother was in actual receipt of support or had a reasonable expectation of support in the future from the deceased worker.
25.	The applicant has given statement evidence that the deceased worker and her sister were not close. They rarely spoke to each other and she was not dependent upon the deceased worker in any fashion. The deceased worker’s sister is a resident of Singapore. The evidence from the applicant and the submissions made by his legal representative at the preliminary conference indicated that the deceased worker’s sister was aware of and had communicated with them with regard to the proceedings, having assisted Ms Hasminah in the making of her statutory declaration. The deceased worker’s sister gave no indication that she considered herself a dependant of the deceased worker or wished to claim a portion of the lump sum.
26.	While it would have been preferable for statement evidence to have been provided from the deceased worker’s sister, I am satisfied having regard to their different geographical locations and the evidence and submissions described above, that she was not in actual receipt of support nor had a reasonable expectation of support in the future from the deceased worker.
27.	There is no evidence of any other family member who may have been dependent upon the deceased worker. 
Apportionment
28.	In order to apportion the lump sum, it is necessary to review all of the relevant facts disclosed in the evidence. In Wratten v Kirkpatrick (1996) 15 NSWCCR 32 ([at 34]), Egan A-J stated:
“The exercise of power to determine the correct amount to be apportioned to each dependant requires an examination of all relevant facts including the extent of past dependence, the anticipated future dependence, the ages of the dependants, their health, special needs, lifestyle, etc.”
29.	I have considered the applicant’s and the second and third respondents’ submissions regarding apportionment and note that they have reached agreement between themselves as to a proposed apportionment.
30.	Whilst the parties’ agreement and wishes are to be given weight, ultimately, I must have regard to all the relevant facts consistently with Wratten v Kirkpatrick and determine for myself what is the appropriate apportionment. 
31.	Having regard to the evidence before me as to the dependants’ ages, the nature of their relationship of dependence with the deceased worker and their individual circumstances, I am satisfied that the proposed apportionment is within the appropriate range. There will be an order apportioning the lump sum in accordance with the parties’ agreement.
32.	Each of the dependants is over the age of 18 at the date of this determination. They have requested, and I am satisfied that it is appropriate, that the lump sum death benefit be paid to them directly, pursuant to s 85A(1)(a) of the 1987 Act. 
Funeral expenses
33.	Section 26 of the 1987 Act provides;
“If compensation is payable under this Division for a death resulting from an injury, the employer must pay additional compensation equal to reasonable funeral expenses not exceeding $15,000 or such other amount as may be prescribed by the regulations.”
34.	The parties have advised me that funeral expenses have now been met. Accordingly, there will be no order pursuant to s 26 of the 1987 Act.
Interest
35.	Section 109 of the 1998 Act provides:
“109 Interest before order for payment (cf former s 113)
(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.”
36.	In Kaur v Thales Underwater Systems Pty Ltd  (Kaur), President Keating J stated 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.”
37.	The discretion to award interest is subject to the limitations set out in ss 109(2) and (3). Relevantly, sub-s (2)(b) provides that interest cannot be ordered on any compensation payable for any period before a claim for the compensation was “duly made”.
38.	The parties have reached agreement that interest ought to be ordered at the rate of 2% above the Reserve Bank of Australia cash rate for the period between the date on which each claim was “duly made” and the date of this determination. 
39.	I am satisfied in all the circumstances that it is appropriate to make an order that gives effect to that agreement.