CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Stock & Station Aviation Pty Ltd v BBT & Ors [2022] NSWPIC 527	
		
APPLICANT:	Stock & Station Aviation Pty Ltd	
		
FIRST RESPONDENT:	BBT	
		
SECOND RESPONDENT:	BCN	
		
THIRD RESPONDENT:	BDG	
		
SENIOR Member:	Elizabeth Beilby	
		
DATE OF DECISION:	23 September 2022	
		
CATCHWORDS:	WORKERS COMPENSATION - Lump sum death benefit; apportionment; Held – the first, second and third respondents were dependent upon the deceased (BFA) at the date of his death in May 2021; there was no other person who was dependent upon the deceased at the date of death.	
determinations made:	1.	I find that the first, second and third respondents were dependent upon the deceased (BFA) at the date of his death in May 2021.
2.	There was no other person who was dependent upon the deceased at the date of death.
3.	The lump sum benefit payable in accordance with s 25(1)(a) of the Workers Compensation Act 1987 as of the date of death was $838,750.
4.	The lump sum of $838,750 is to be apportioned amongst the respondents in the following manner:
(a)	70% of the lump sum death benefit to the first respondent;
(b)	20% of the lump sum death benefit to the second respondent, and
(c)	10% of the lump sum death benefit to the third respondent.
5.	The payment to the first respondent is to be paid directly to her.
6.	The payments to the second and third respondent are to be paid to the NSW Trustee and Guardian to be held in trust until the respondents reach the age of 18. 	

STATEMENT OF REASONS
BACKGROUND
1.	Mr BFA (the deceased) died in May 2021 as a result of injury Stock & Station Aviation Pty Ltd (the employer/applicant) has admitted liability in respect of the death and is liable to pay compensation pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act) (the lump sum death benefit). 
2.	The only substantive issue for determination is the question of dependency and any apportionment of the death benefit.
ISSUES FOR DETERMINATION
3.	The parties agree that the following issues remain in dispute:
(a)	dependency at the time of death, and 
(b)	apportionment of the lump sum death benefit.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)
4.	The parties were able to agree to a proposed resolution of the matter.
5.	The parties were unable to agree to any resolution regarding the payment of interest. The parties have been directed to file written submissions on this issue. 
EVIDENCE
Documentary evidence
6.	The following documents were in evidence before the Commission and taken into account in making this determination: 
(a)	Application to Resolve a Dispute and attached documents;
(b)	A Reply by the first, second and third respondents to the Application to Resolve a Dispute, and
(c)	late documents dated 14 September 2022. 
7.	In addition, submissions were received drafted by the first respondent, endorsed by the second and third respondents dated 16 September 2022. The submissions outlined a proposed apportionment of the lump sum benefit. 
Dependency
8.	A dependent is defined in s 4 of the Workplace Injury Management and Workers Compensation Act 1998 to include persons who were “wholly or in part dependent for support on the worker at the time of the worker’s death”.
9.	There is no doubt that all three respondents had a close and loving relationship with 
Mr BFA (the deceased).
10.	The first respondent was the de facto partner of the deceased and they lived together and ran a business providing various rural helicopter services including the muster of livestock. The deceased and the first respondent owned their property together with a mortgage of approximately $170,000 together with two helicopters, one which was destroyed.
11.	Clearly there was financial dependency between the partnership. 
12.	The first respondent has a 22-year old daughter, BEH who has asked not to be considered as dependent upon the deceased as at the date of death.
13.	The second respondent is the child of the first respondent and the deceased and was born in 2019. She is monitored by a paediatrician and haematologist in relation to a condition involving low iron and neutrophils.
14.	The evidence before me indicates that the second dependant is doing well and has reached all her anticipated developmental milestones. There is no reason for me to consider her other than a child of the deceased who is in reasonably good health.
15.	The third respondent is not the genetic child of the deceased however had a close and loving relationship with him.
16.	Whilst she has received some entitlement to her natural father’s estate (he also being deceased) the parties were unable to identify what level of entitlement she has as the funds will not be disbursed until she reaches the age of 21.
17.	The third respondent is currently attending an agricultural high school as a boarder and is in year 8. She is well and continuing to do well at school and has no special needs. She was treated as a child of the deceased in all other respects, and it is easy to establish that she was also dependent upon him as at the date of death.
18.	There is no evidence before me that identifies any other person who could be or wishes to be classed as a dependant upon the deceased as at the date of death.
19.	The proposed apportionment between the respondents I find to be reasonable and appropriate in the circumstances and I make Orders in accordance with it. 
20.	Due to the age of the second and third respondent, their entitlement is be held by the NSW Trustee and Guardian until they reach the age of 18. 
21.	There is also a claim for interest on the lump sum benefit. 
22.	The parties have been directed to file written submissions on this issue in accordance with the previously identified timetable.