Wratten v Kirkpatrick & Others [1996] NSWCC 2; (1996) 15 NSWCCR 32 (5 February 1996)

[1996] NSWCC 2; (1996) 15 NSWCCR 32

WRATTEN v. KIRKPATRICK & OTHERS

Compensation Court of New South Wales: Egan A-J

1 September 1995 (H)

5 February 1996 (J)

Proceedings to obtain compensation - Payment into court and disposal of moneys paid - Apportionment between dependants - Made only on application by or on behalf of dependants - All relevant dependency facts examined - All dependants entitled to opportunity to make submissions - Workers Compensation Act 1987, section 29

R.I. Goodridge, for the applicant

J.P. Hasson (solicitor), for the first respondent

N. Vrabac (solicitor), for the second respondent

S.M.L. Grant, for the third & fourth respondent

Cur adv vult

EGAN A-J: This is an application to alter the apportionment of moneys payable by the respondent, John Kirkpatrick, in respect of the death of Grantley Ronald Priest. An apportionment had been made by the WorkCover Authority in a manner which clearly demonstrated that it did not properly deal with the matter in procedure or substance. It was only with some difficulty on the promised exercise of the Court's power to punish on a subpoena for the production of documents that the full file was produced for inspection.

Clearly this claim proceeded incorrectly from the time it was first listed being dealt with in the absence of Luke [the applicant and a minor - Ed] and with no evidence of service or notice of hearing. Clearly Mrs Luckey should have been appointed a next friend of Luke and given an opportunity to be heard. Furthermore it is clear that the award in Luke's favour should not have been less than the statutory rate payable under the Act.

That position has now been remedied. The apportionment procedure adopted is also clearly outside the Act.

Section 29(1) gives the WorkCover Authority power to apportion.+ The operative word is "may". The WorkCover Authority may apportion so long as the Court has not been requested to or in fact embarked on that exercise. However, section 29(2) provides:

"Application for apportionment may be made by or on behalf of a person entitled to the compensation:

(a) to the Authority; or

(b) to the Compensation Court (whether or not an application has been made to the Authority or the Authority has made a decision)."

The facts shortly are as follows. In the early 1980s Mrs Luckey (nee Wratten) and the deceased were fellow workers on a property at Walgett. An "on and off" de facto relationship developed. On 17 February 1982, after the parties had separated, Luke Anthony Wratten was born, the father being the deceased. In February 1984 maintenance proceedings brought by Mrs Luckey were heard and the Court ordered the deceased to pay $15 per month in respect of Luke's maintenance.

In 1985 the deceased married Deborah Priest and there were two children of the marriage: Dimity born 5 July 1986 and Grantley born 9 January 1988. The deceased died on 27 September 1987.

Mrs Priest then brought proceedings in this Court on behalf of herself and Dimity and Grantley. She joined Luke Anthony Wratten as a person who may be a dependant. Solicitors for Mr Kirkpatrick filed an answer and the matter proceeded to hearing before Commissioner Muirhead on 20 December 1988. There appears to have been no evidence of service on Luke and Mrs Luckey said she had had no notice of the proceedings before they took place. The Commissioner found Deborah, Dimity and Grantley totally dependent and Luke partly dependent. He made an award in Luke's favour of $15 per month.

The periodic payments then commenced and the appropriate lump sum was paid into WorkCover Authority. The WorkCover Authority then wrote to Mrs Luckey and told her it proposed to apportion that amount between the four dependants and Luke's share would be between $12,000 and $13,000. WorkCover then proceeded to apportion the children's shares being Dimity--$16,418.20, Grantley--$16,727.98 and Luke--$957.75.

On 6 September 1993 his Honour Judge Moran by consent varied the award to Luke to $40 per week from 27 September 1987. The following day he further varied that order to $40 per week from 1 January 1991. No reason is apparent for the change of date. Mrs Luckey then brought these proceedings to vary the lump sum apportionment.

It appears to me that the intention of legislature was that the power to apportion is brought into play by the application of a party to either the Court or WorkCover Authority for an apportionment to be made. This was not the case here. The WorkCover Authority apparently of its own volition proceeded to apportion.

The apportionment of the benefits involves the exercise of applying the law to the facts in each case. 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.

But there is more. The fact finding exercise must be carried out with due notice to those who may be entitled to share and they must each be afforded an opportunity to present submissions in relation to the apportionment.

This opportunity was not given in this case and it appears no examination of the facts was undertaken. A "standard" simple mathematical formula was relied upon, a course for which I can find no justification and in respect of which no supportive submissions were made. It simply counted months and divided the lump sum accordingly to the length of time to 60 years of age in the case of the widow and to 18 years of age in the case of the children. Then Luke's share was reduced to approximately 1/16 of the mathematical figure.

While the position is clearly established that the deceased was providing minimal support to Luke, his obligation to support nevertheless continued to exist. Mrs Luckey has demonstrated that she was prepared to exercise the right to maintenance for Luke and presumably would be prepared to do so in the future. The evidence was that while Mr Luckey (whom she married in 1992) provided accommodation and food she provided the rest of Luke's necessities including clothing, school fees and the like, dental/medical care and pocket money. Mrs Luckey said that Luke does well at school and it is his ambition to become a veterinary surgeon. It appears probable that he will go on to tertiary education. One would expect that there would be added financial burdens during that period in respect of which he could well have looked to his father for assistance and in getting established. Luke has no health problems which need to be taken into account.

In my view an appropriate assessment of the "injury" caused by the deceased's death is the sum of $5,000.

The remaining dependants are a family unit and while, in my view, there is a lot to be said for the proposition that it is desirable to delay apportionment until the children are older and their future needs and the prospects of their fulfilment more capable of assessment, I am of the view that apportionment having been undertaken it should extend to all dependants. The children are nine and seven years of age. The family lives in a small country town although Mrs Priest desires to sell that house and move to Dubbo where opportunities for advancement of the children are greater. Their current schooling is unremarkable and there are no clear future plans as to education and occupation. Grantley has some health problems namely asthma and Dimity has a dental problem. Both matters require expert attention with consequential costs.

An appropriate apportionment would in my view be $17,000 to Dimity and $18,000 to Grantley. The remainder is of course apportioned to Mrs Priest.

Having regard to all the circumstances of this unfortunate matter and in particular the conduct of the WorkCover Authority, I order the WorkCover Authority to pay the costs of all parties to this application.

Orders accordingly

Solicitors for the applicant: Walker Smith (Taree)

Solicitors for the first respondent: Leitch Hasson & Dent

Solicitor for the second respondent: N. Vrabac

Solicitors for the third and fourth respondents: Curtis Furlong