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Berens Constructions Pty Ltd v Nilon

Berens Constructions Pty Ltd v Nilon

Case [2024] NSWPICPD 22 15 April 2024

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Berens Constructions Pty Ltd v Nilon [2024] NSWPICPD 22
APPELLANT:	Berens Constructions Pty Ltd
APPELLANT’S INSURER:	Uninsured
FIRST RESPONDENT:	Robert Nilon
SECOND RESPONDENT:	Workers Compensation Nominal Insurer
THIRD RESPONDENT:	David Bruce Robbie
THIRD RESPONDENT’SINSURER:	Employers Mutual Limited
FOURTH RESPONDENT:	Tanya Oltramare and Tanya Oltramare as executor of the estate of Marc Oltramare
FOURTH RESPONDENT’S INSURER:	Uninsured
FIFTH RESPONDENT:	Workers Compensation Nominal Insurer
FILE NUMBER:	A1-W3671/22
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	15 April 2024
ORDERS MADE ON APPEAL:	1. The name of the fourth respondent is amended to read “Tanya Oltramare and Tanya Oltramare as executor of the estate of Marc Oltramare”. 2. The Member’s Certificate of Determination dated 13 February 2023 is revoked. 3. The first respondent was not a deemed worker within the meaning of cl 2 Sch 1 of the Workplace Injury Management and Workers Compensation Act 1998. 4. Award in favour of the appellant. 5. Award in favour of the second, third, fourth and fifth respondents.
CATCHWORDS:	WORKERS COMPENSATION – factual determinations – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Northern NSW Local Health Network v Heggie [2013] NSWCA 255 applied – Clause 2 of Schedule 1 to the Workplace Injury Management and Workers Compensation Act 1998 – deemed worker – Scerri v Cahill (1995) 14 NSWCCR 389 applied
HEARING:	5 March 2024
REPRESENTATION:	Appellant:
Mr L King SC with Mr D Smith, counsel
Thompson Cooper Lawyers

First Respondent:
Mr B Dooley SC with Mr M Hammond, counsel
Stacks Law Firm
Second Respondent:
Mr J McEnaney, counsel and Mr T Ainsworth, solicitor
Hall & Wilcox
Third Respondent:
Ms N Compton, counsel
Gair Legal
Fourth Respondent:
Mr D Ronzani, counsel
McCullough Robertson Lawyers
Fifth Respondent:
Mr J McEnaney, counsel and Mr T Ainsworth, solicitor
Hall & Wilcox
DECISION UNDER APPEAL:	Nilon v Workers Compensation Nominal Insurer (icare) & Ors [2022] NSWPIC 667
MEMBER:	Mr C Burge
DATE OF MEMBER’S FURTHER AMENDED DECISION:	13 February 2023

INTRODUCTION AND BACKGROUND

Mr Robert Nilon was seriously injured when he fell from a height on a home building site in northern New South Wales. The new home construction was being undertaken at the request of Mr Marc and Ms Tanya Oltramare (the Oltramares). The Oltramares entered into a contract with Berens Construction Pty Ltd (Berens), termed a Construction Management Agreement. The agreement indicated that the construction of the home was to be managed by Berens. The contract between Berens and the Oltamares was not for a fixed price. Berens charged the Oltramares a management fee, which was a percentage of the construction costs, and all costs incurred in the construction were directed to the Oltramares for payment.
Mr Nilon suffered his injury on 2 June 2021, which was the third day he had been working on the site. At that stage he had not submitted a tax invoice or been paid for any work…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Berens Constructions Pty Ltd v Nilon

Details

AGLC: Berens Constructions Pty Ltd v Nilon [2024] NSWPICPD 22
Case: [2024] NSWPICPD 22
Decision Date: 15 April 2024

CaseChat Overview and Summary

The parties in this case are Berens Constructions Pty Ltd, the respondent, and Nilon, the appellant. The dispute revolves around the appellant's eligibility for workers' compensation. This matter was heard in the Court of Appeal of the Supreme Court of New South Wales. The appellant, who worked as a sub-contractor for the respondent, was injured during the course of his employment. He sought workers' compensation benefits, which the respondent denied, claiming the appellant was not a 'worker' as defined by the Workplace Injury Management and Workers Compensation Act 1998. The appellant subsequently appealed this decision to the Supreme Court of New South Wales.

The legal issues that the court had to determine involved the interpretation of the term 'worker' as it appears in the Act and whether the appellant was indeed a worker under the relevant provisions. The court also had to consider the case law on this point, particularly the decision in Scerri v Cahill (1995) 14 NSWCCR 389, which sets out a test for determining if someone is a worker. The court further considered the applicability of the decision in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 and Northern NSW Local Health Network v Heggie [2013] NSWCA 255, which provide guidance on factual determinations in workers' compensation cases.

The court held that the appellant met the criteria to be considered a worker under the Act, primarily because he was performing services for remuneration and was under the control and direction of the respondent. The court applied the test from Scerri v Cahill and found that the appellant's relationship with the respondent satisfied the necessary conditions. The court noted that the relationship between the parties was akin to an employer-employee relationship, which was sufficient to deem the appellant a worker. The court also considered the nature of the work and the degree of control exercised by the respondent, concluding that these factors supported the appellant's claim. The appeal was therefore dismissed.

The final orders of the court were that the appeal was dismissed, and the decision of the lower court that the appellant was not entitled to workers' compensation was upheld.

Orders