Boland v Am Hunt & GR Hunt & Jr Hunt & PJ Hunt & PM Hunt t/as Heathfield Pastoral Company

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Boland v AM Hunt & GR Hunt & JR Hunt & PJ Hunt & PM Hunt t/as Heathfield Pastoral Company [2022] NSWPIC 382
APPLICANT:	Michael Boland
RESPONDENT:	AM Hunt & GR Hunt & JR Hunt & PJ Hunt & PM Hunt t/as Heathfield Pastoral Company
MEMBER:	Rachel Homan
DATE OF DECISION:	15 July 20202
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation and incurred section 60 of the Workers Compensation Act 1987 (1987 Act) expenses for injury to left leg; whether applicant a worker/deemed worker at time of injury; whether in the course of employment; extent of incapacity resulting from injury; applicant employed on a casual basis as a truck driver during harvest period; injury occurred whilst taking the truck to the mechanic after harvest had ended; Held – applicant remained a “worker”; applicant was in the course of employment at time of injury; Henderson v Commissioner of Railways (WA) and Comcare v PVYW cited; awards for the applicant for weekly compensation and incurred section 60 of the 1987 Act expenses.
DETERMINATIONS MADE:	1. The applicant sustained an injury to his left femur in the course of employment pursuant to s 4(a) of the Workers Compensation Act 1987 on 17 December 2021. 2. Employment was a substantial contributing factor to the injury for the purposes of s 9A of Workers Compensation Act 1987.
ORDERS MADE:	1. Award for the applicant for weekly benefits pursuant to ss 36(1) and 37(1) of the Workers Compensation Act 1987, based on a pre-injury average weekly earnings figure of $1,653.24, as periodically indexed, from 17 December 2021 to date and continuing. 2. The respondent to pay the applicant’s reasonably necessary medical and related treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 upon production of accounts, receipts and/or Medicare notice of charge.

STATEMENT OF REASONS

BACKGROUND

Mr Michael Boland (the applicant) was employed by AM Hunt & GR Hunt & JR Hunt & PJ Hunt & PM Hunt t/as Heathfield Pastoral Company (the respondent) as a truck driver.
On 17 December 2021, the applicant sustained an injury when his left femur was crushed by a bull bar on a truck.
The applicant made a claim for compensation on 11 January 2022. Liability to pay compensation was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 2 February 2022.
A request for internal review was made on 7 February 2022. In a notice dated 21 February 2022, the applicant was advised that the decision to dispute liability was maintained.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 12 April 2022. The applicant seeks weekly compensation on an ongoing basis from 17 December 2021 and compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for incurred medical expenses.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 16 June 2022. The applicant was represented by Mr Joshua Beren of counsel, instructed by Mr Peter Said. The respondent was represented by Ms Lyn Goodman of counsel, instructed by Mr Malcolm Griffin. A representative from the insurer, Ms Tran, was also present.
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. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

During the conciliation conference, the parties reached agreement that the applicant’s pre-injury average weekly earnings (PIAWE) figure was $1,653.24.
The parties agreed that the following issues remained in dispute:
(a)    whether the applicant was, at the time of injury on 17 December 2021, a “worker” or deemed worker;
(b)    whether the applicant sustained an injury pursuant to ss 4, 9A of the 1987 Act;
(c)    the entitlement to weekly compensation in the period from 17 December 2021 to date and continuing, and
(d) the entitlement to s 60 expenses.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)ARD and attached documents;
(b)Reply and attached documents;
(c)documents attached to Application to Admit Late Documents lodged by the applicant on 5 May 2022;
(d)documents attached to Application to Admit Late Documents lodged by the applicant on 27 May 2022;
(e)documents attached to Application to Admit Late Documents lodged by the respondent on 6 June 2022, and
(f)a complete copy of a report by Dr Sammu Saman Maheepala, dated 27 April 2022, lodged by the applicant on 16 June 2022.
Neither party applied to adduce oral evidence or cross examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by him on 19 January 2022, 31 March 2022, 20 April 2022 and 27 May 2022.
The applicant’s first statement was prepared by an investigator procured by the insurer. The applicant said he worked as a general hand and manager on his father’s property until 1978.
Between 1978 and 1998, the applicant drove a gravel truck.
The applicant purchased and operated a self-loading cotton module transporter for around three years from 1998.
In 2002, the applicant had a seizure and was unable to continue driving heavy vehicles. The applicant got a job as a salesperson which he performed for approximately 10 years.
As he had been seizure free for approximately 10 years, the applicant was able to reapply for a truck license. The applicant regained his truck license in 2012 and worked in the cotton transport industry until 2018, when the applicant injured his back unhooking a trailer.
The applicant resumed driving trucks in mid-February 2021 and in October 2021 saw a job vacancy post on Facebook for a truck driver position for the respondent. The applicant knew the owners’ family quite well and was best man at the owners’ wedding. The applicant called the owner, Geoff Hunt, who told the applicant that his son Jason would get back to him. Two days later, Jason Hunt called the applicant and offered him the job. The applicant commenced work on 20 October 2021.
On 20 October 2021, the applicant met with Jason and Geoff and was offered $37 per hour, three meals a day and accommodation, which he accepted.
The applicant drove the truck to the respondent’s property at Byra where he worked. The applicant was paid fortnightly and provided with a payslip by Ashley Hunt. The applicant provided his individual tax file number, superannuation account details and copies of his licenses. Income tax was deducted from his payments.
On 15 December 2021, the applicant arranged to use one of the respondent’s trucks in order to carry out a compulsory driving test as he was aged over 70 years old. On the same date, the applicant asked Jason Hunt whether there was work going for him. The applicant stated,
“Jason said, ‘Yes. There will be work carting from our storages to Narrabrai and Wee Waa’.
I said, ‘I’ll bring the truck back once I’ve done the test and got the other things fixed on the truck’.
Jason thanked me for my work during the wheat harvest and said, ‘I’ll be in touch with you in the new year if not earlier’.”
The applicant said he had told Jason Hunt that he would need to do his heavy vehicle licence test in November about a week after commencing work for the respondent. Around the time the applicant had expected to do the test, he was advised that due to COVID restrictions, the examiner could not attend his location until 17 December 2021.
Prior to the date of the test, the applicant had noticed that the fan belts on the engine were squealing. Jason Hunt told the applicant to take the truck into the mechanic on the morning of 17 December 2021 before his driving test to see if the issue could be fixed and so any parts that were needed could be ordered.
On 16 December 2021, the applicant drove from his home to pick up the truck, which he then drove to Moree to have filled with approximately 17 tonnes of crusher dust for the driving test.
On 17 December 2021, the applicant drove to a vehicle service and maintenance business operated by Greg Woods. The applicant arrived at around 7.15am and parked on the street. The applicant walked into the shed and was told that Mr Woods was running a bit late and would be there shortly. The applicant proceeded to drop the ball bar and lift the bonnet.
As the applicant undid the bolts on the bull bar, it suddenly fell towards him and impacted with his left hip. The applicant felt excruciating pain and fell to the ground about 2m away from where he had been standing. The applicant couldn’t move and was fearful that he had broken his spine. The pain in the applicant’s hip and back was extreme and unbearable. The applicant lay there for around 20 minutes before Mr Woods arrived and provided assistance.
The applicant was taken in a utility vehicle to Moree Hospital Emergency Department. The applicant was later transported by air ambulance to Tamworth Hospital where he underwent surgery.
In his second statement, the applicant provided a similar account of his employment history and the commencement of his employment with the respondent.
The applicant said that on 15 December 2021, he suggested to Jason Hunt that the truck should be serviced and maintained. A number of issues needed to be addressed including wheel alignment, squeaking engine belt, air-conditioning, electronics and headlights which were too dim for driving at night.
Jason Hunt instructed the applicant to take the truck to the mechanic on the morning of the applicant’s driving test on 17 December 2021 to have it inspected so that after the applicant’s test, the issues could be rectified.
The applicant said that, had he not been employed by the respondent on 17 December 2021, it would not have been necessary to take the truck to the mechanic. Nor would the applicant have had the need to renew his license.
The applicant said he was paid wages for the day of 17 December 2021 but had not returned to work since.
Since the injury, the applicant had experienced constant, moderate to severe pain and discomfort in the area below his lower back and above his right hip. An X-ray of the right hip was performed on 30 March 2022. The applicant was still prescribed pain relief medication and had difficulties with sleep, gardening, pushing and pulling objects, standing for prolonged periods, walking, driving, showering and performing his normal domestic duties.
In his statement, dated 20 April 2022, the applicant denied that his employment had been terminated and stated:
“On or about Wednesday 15 December 2021, I recall having a conversation with Mr Jason Hunt.
The conversation was in relation to using the Heathfield truck to carry out my compulsory driving test as well as moving some grain from Byra to Narrabrai and Wee Waa after the Christmas break, to which Jason advised that we would discuss same following my return from my license exam.
It was my full intention to continue to cart grain for Heathfield Pastoral Co after the Christmas break and renewing my MC license.
I have never seen a contract, nor was a contract of employment ever discussed and there was never any mention of employment for the harvest period only.
I was not employed on a contractual basis or on the basis of any harvest periods.
I was employed on the basis that I held the required MC license to cart grain from storage facilities to the required destination.
It was my understanding that my period of employment was ongoing and was not subject to any contract or harvest period.”
In his statement dated 27 May 2022, the applicant described various treatment expenses he had incurred since 17 December 2021.

Treating evidence

An operation report dated 18 December 2021 indicates that the applicant underwent surgery to his left femur performed by Dr Philip Huang.
A discharge referral from Tamworth Hospital recorded:
“Working on a truck this am, bull bar from semi-trailer fell onto his left hip knocking pt to the ground, pt unalbe to move, waited for help to come.”
The applicant was diagnosed with a left neck of femur fracture.
A SIRA Certificate of Capacity, dated 25 April 2022, completed by Dr Sammu Saman Maheepala, certified the applicant as having no current work capacity from 28 March 2022 to 25 April 2022.
In a letter dated 27 April 2022, addressed to the applicant’s solicitors, Dr Maheepala stated:
“Mr Boland has had a fracture of left femur as a result of the bull bar falling on that, which necessitated orthopaedic surgery for correction.
At his age, an injury of this nature will effectively make him not able to do any strenuous work. It is hard to say at this stage if he would ever be able to return to truck driving. This is to be assessed, with ongoing physiotherapy, and seeing what level he is going to recover up to. May need further orthopaedic specialist opinion regarding this after going through physiotherapy.
… I cannot see him returning to truck driving in the near future. He has left femur and hip pain, which requires regular pain relief. Also joints can be stiff after surgery, and has not had physiotherapy as it is not covered by WorkCover yet. He is likely to have a partial incapacity, even if recovers well from surgery, as it would be difficult for him to get in and out of a truck. It is difficult to say that he will be totally incapacitated at this stage, but given his age and the magnitude of injury, there is always a possibility that he may not be able to return to work as a truck driver, due to the physical demands that kind of job requires.”

Correspondence from applicant’s solicitor

A letter addressed to the respondent from the applicant’s solicitor, dated 10 March 2022, recorded that the applicant had suffered an injury whilst waiting for a mechanic. The solicitor was instructed that the sum of $314.50 remained owing to the applicant for his work carried out on 17 December 2021 whilst employed by the respondent. Unless payment was received within seven days, appropriate recovery proceedings would be commenced in the Local Court.
A trust account deposit sheet for a trust account held by the applicant’s solicitors recorded an internet transfer of $314.50 on 23 March 2022.

Payslips

Payslips in the applicant’s name on the respondent’s letterhead for the fortnight commencing 18 October 2021 showed payments for 140 casual ordinary hours.
Between 1 November 2021 and 14 November 2021, the applicant was paid for 19.5 hours.
Between 15 November and 28 November 2021, the applicant was paid for 64.5 hours.
Between 29 November 2021 and 12 December 2021, the applicant was paid for 120 hours.
Between 13 December 20 21 and 26 December 2021, the applicant was paid for 8.5 hours. The payment was made on 27 December 2021.

Factual report

The respondent relies on a factual report prepared by ProCare, dated 2 February 2022.

Jason Hunt

Attached to the factual investigation was an unsigned written statement by Mr Jason Hunt prepared on 1 February 2022.
Mr Hunt stated that in late 2021, the respondent posted a position vacant advertisement on their Facebook page for a casual MC (multi-combination) truck driver. Mr Hunt’s father spoke to him and said that the applicant was asking about the job and whether it was available. The position had been filled but it fell through. Mr Hunt called the applicant and discussed the role over the phone.
Mr Hunt described the work required at the respondent’s properties in Byra and Moree. The work related to the harvest period only, and it was not Mr Hunt’s intention at that time that the work would be ongoing beyond the harvest.
The applicant was offered $37 per hour, three meals per day and accommodation, which he accepted. The applicant commenced work on 20 October 2021.
Mr Hunt passed on all the information regarding the applicant’s employment to his sister, Ashley Hunt, who drew up the documents relating to his employment. The applicant was not provided with copies of those documents because there was some delay in obtaining information from the New South Wales Farmers Association with regard to the relevant award.
Mr Hunt noted,
“Mike reported a problem with air conditioning in the truck which I arranged to have repaired.
He reported that the truck was pulling to the right so I greased the king pins on the steering mechanism and Mike reported that the vehicle steering was greatly improved.
Mike also reported an issue with the lights but I couldn’t get them to fault when I tested them so given that Mike wasn’t keen on driving at night because of his eyesight, I directed him not to drive at night.”
Mr Hunt recalled that quite early on after he started work with the respondent, the applicant mentioned that he needed to do a licence test. Mr Hunt stated:
“He said, ‘If I’m still with you then, could I borrow the truck’.
I said, ‘Even if you’re not with us, you can borrow the truck’.
I recall that sometime prior to Mike’s licence test he mentioned to me that the fan belts were squealing. I’d driven the truck as well and had noticed the belts were squealing also.
I spoke to my mechanic, Greg WOODS and asked him how pressing it was to have the belts seen to and Greg told me that if they were only squealing when the Horton fan engaged it wouldn’t be a problem but if they were squealing all the time he’d need to have a look and see if the belts need to be replaced or adjusted.
I recall having a telephone call with Mike perhaps a day or two before he picked up the truck to take to his home before the test on 17 December 2021.
During that conversation, Mike said, ‘do you want me to take the truck into the mechanic to get it looked at before I do my test?’
I said, ‘Only if you have time”.
I vaguely recall Mike mentioning something about the belts squealing during the test.”
Mr Hunt said he was informed by Mr Woods that the applicant had been injured on the morning of 17 December 2021.
Mr Hunt said he recalled having a conversation with the applicant prior to his injury during which he asked if there was any grain for him to move from Byra to Moree in the New Year. Mr Hunt told the applicant that they did have grain to move but would need to talk about that.

Advertisement

A Facebook advertisement posted by the respondent on 22 September 2021 stated:
“We are looking for a MC truck driver for the upcoming harvest, with an ongoing permanent role available for the right candidate. Flexible, fast pace workplace, great young team with an expanding business. Please message for more details.”

Further statement by Jason Hunt, dated 22 March 2022

Mr Hunt prepared a further statement which was signed on 22 March 2022.
Mr Hunt stated that the harvest period commenced on 19 October 2021 and concluded on 12 December 2021. There were a number of activities related to the harvest that continued past 12 December 2021.
Mr Hunt stated:
“During the period 13 December 2021 to 26 December 2021, Michael submitted three time sheets.
One for hours worked on Monday 13 December 2021.
One for hours worked on Thursday 16 December 2021.
One for hours worked on Friday 17 December 2021.
We issued a payslip covering that period on 27 December 2021.
With regard to the time sheet for 13 December 2021, we accepted those hours and paid Mick accordingly.
We initially declined to approve payment for the time sheets submitted for 16 and 17 December until we’d been provided with advice as to whether or not he was working on those dates.
Under threat of litigation from Mick’s lawyers, we formed the view that we would pay him for the work he claims to have performed on 17 December 2021 in the amount of $314.50 on the basis it was made without any admission of liability.”

Mr Hunt said the applicant was engaged on a casual basis for the purposes of the harvest, but there was a possibility that there would be further work for him after the harvest was completed.
Attached to Mr Hunt’s statement was a time sheet showing the applicant worked four hours on 13 December and 4.5 hours on 16 December 2021. The applicant claimed 1.5 hours of work on 17 December 2021.
Also attached to Mr Hunt’s statement was email correspondence dated 15 March 2022 addressed to the insurer. The email stated,
“Please find attached a letter of demand that we have now received from lawyers acting on behalf of Mr Boland. You will see that Mr Boland’s lawyers are threatening to commence litigation against us in the event that payment in the amount $314.50 is not received by them on or before 17 March 2022.
This email is to advise you as our insurer, that we intend to make payment of the demand in order to avoid the expense, uncertainty and delay involved in litigation. In the event that this intended payment will result in the insurer refusing to indemnify us for any workers compensation claim made by Mr Boland then would you please advise as a matter of urgency.
In making payment to Mr Boland’s lawyers we will confirm that the payment purely to avoid litigation and that we do not accept any liability.”

Further statement by Jason Hunt, dated 19 May 2022

In a further statement, dated 19 May 2022, Mr Hunt stated,
“I agree that on or about 15 December 2021, I had a conversation with Mick about his driving test and moving grain from Byra to Narrabrai and Wee Waa following the Christmas break.
I agree I told Mick we would discuss the possibility of further work in the new year.
…
I had a verbal agreement with Mick regarding the conditions of his employment which I then detailed to my sister Ashley who, on my instructions, drew up a documented employment contract between Mick and Heathfield. It is my understanding that document was not provided to Mick.
I agree Mick was employed on the basis he was suitably licenced and experienced.
I agree Mick’s employment with Heathfield was not terminated.
I understand that Mick had had a conversation with Ash during which he said something along the lines of “I’ve finished up” or something like that. Ash interpreted that as Mick was ending his employment with Heathfield and subsequently recorded that in the payroll system as terminated.
I reiterate, Mick’s employment with Heathfield was not terminated.”

Applicant’s submissions

The applicant submitted that there was no dispute that he had been employed by the respondent. The applicant’s employment never ended and he had discussions with Mr Hunt around ongoing work.
The question for the Commission was whether, on 17 December 2021, the applicant was in the course of his employment.
The applicant’s evidence was that he intended to spend the day on 17 December 2021, getting his vehicle inspected and doing a compulsory driving test before returning the truck. The evidence was clear that the applicant was asked to do these things by his employer. There was no evidence that the applicant had the vehicle inspected out of the goodness of his heart.
The applicant referred to the job advertisement which noted the potential for ongoing employment.
The respondent drew attention to the evidence in his first statement that he was told by Mr Hunt to take the truck to the mechanic on the morning of 17 December 2021. The applicant arrived at the mechanics at 7.15am. The applicant submitted that this was not something the applicant would have been doing if he did not expect to be remunerated for it.
In his further statement, the applicant gave evidence that Mr Hunt was aware of issues with the truck that needed to be addressed for its roadworthiness. Mr Hunt instructed the applicant to take the truck to the mechanic on the morning of his exam to have it inspected.
The applicant noted that his evidence as to the events on 17 December 2021 was not contradicted. The applicant’s evidence was that he had no intention of renewing his license if he was not going to continue to be employed. The applicant gave evidence that he was paid wages for the day on 17 December 2021.
In his third statement, the applicant gave evidence that it was his intention to continue to cart grain for the respondent after the Christmas break. In renewing his license, the applicant understood that his period of employment was ongoing and not subject to any harvest period.
The applicant noted that Mr Hunt’s evidence had changed over time. Mr Hunt initially stated that it was not his intention to offer the applicant work beyond the harvest. That evidence had changed by the time of Mr Hunt’s third statement, where he stated that there was work performed by the applicant after the harvest on 13 December 2021.
The applicant’s evidence contradicted Mr Hunt’s evidence that the applicant offered to take the truck into the mechanic to get it looked at and that Mr Hunt responded, “only if you have time.” In any event, Mr Hunt’s statement should be taken to be an instruction. The applicant was entitled to assume he would be paid for taking the truck to the mechanic.
The applicant noted that he was paid for work on 17 December 2021. Although Mr Hunt asserted that payment was made on a without prejudice basis under threat of litigation, no letter stating the basis on which the payment was made was in evidence.
The applicant submitted that Mr Hunt’s evidence as to a conversation between the applicant and his sister Ashley would be given little weight. Mr Hunt provided a second-hand account of that conversation. The applicant denied ending his employment.
The applicant submitted that at the time Mr Hunt asked the applicant to take the vehicle to be fixed, Mr Hunt understood that the applicant was employed. Mr Hunt expected the applicant to perform all work after the Christmas break.
Although a written contract of employment had not been provided by the applicant. The contract which was prepared included a requirement that the applicant was to maintain a valid heavy vehicle license for the period of his engagement.
The advertisement for the role indicated that an ongoing permanent role was available.
The applicant submitted that, as at 17 December 2021, his contract of employment was still in effect. The applicant’s employment had not been terminated.
The applicant was asked to do something by his employer and it could be inferred that if an employer asked an employee to do something incidental work, there was an intention to create a legal relationship. There was no evidence that the applicant took the truck to the mechanic as a favour to his employer. The applicant did not make a gratuitous offer. The evidence established that the applicant was asked to take the truck and he did what he was told by his employer.
The applicant submitted that ss 4 and 9A of the 1987 Act were satisfied.
With regard to the issue of capacity, the applicant submitted that the medical evidence was clear that he fractured his left femur. A certificate of capacity certified the applicant as having no current capacity until April 2022. Dr Maheepala’s subsequent report indicated that the applicant’s prognosis was dependent on the outcome of the surgery. There was no medical evidence of capacity and the applicant was entitled to weekly payments on the basis of total incapacity.
The applicant submitted that entitlement to s 60 expenses would follow the finding of an injury.
In summary, on an objective view of the factual evidence, the applicant was instructed to do something by his employer. The applicant expected to be paid to perform that work and was in fact paid. The applicant sustained an injury whilst in the course of performing that work.

Respondent’s submissions

The respondent referred to the payslips in evidence and noted that on 27 December 2021, the applicant was paid for 8.5 hours worked. On the face of the payslip, it was unclear what days the applicant worked. A trust deposit payslip indicated that the amount of $314.50 was paid into the applicant’s solicitors’ trust account on 23 March 2022. Evidence attached to Mr Hunt’s second statement suggested that the payment of $314.50 was made under threat of litigation from the applicant’s lawyers. The payment made on 27 December 2021 was for work performed on 13 and 16 December 2021.
The respondent submitted that the fact that a payment was made to the applicant under threat of litigation should not give rise to an inference that the applicant was performing work on 17 December 2021.
The respondent referred to the evidence given in Mr Hunt’s final statement that the applicant had indicated to Ashley Hunt that he had “finished up”. The respondent did not terminate the applicant’s employment. The applicant ended the employment relationship himself.
The respondent submitted that it was the applicant who suggested repairs to the truck. The truck was being borrowed by the applicant for the purposes of completing his license test. Mr Hunt’s evidence suggested the truck was being borrowed. The applicant was told that he could use the truck.
The respondent noted that the applicant’s own evidence confirmed that he suggested that repairs should be made to the truck. There was a difference between the applicant and Mr Hunt’s evidence as to whether the lights were too dim for driving at night.
The respondent submitted that the applicant’s more recent statements were self-serving and had clearly been drafted by the applicant’s solicitors. The use of language such as “instructed me” was different to the language used in the applicant’s first statement, which had been prepared by an investigator. In the applicant’s first statement, he described arranging a loan of the truck in order to carry out the driving test. The evidence of the applicant was contradicted in a dramatic way between his first and subsequent statements.
The applicant’s first statement did not indicate that Mr Hunt had directed the applicant to stay with the truck at the mechanic or do anything in particular in relation to the truck. The applicant’s first statement was made within a month of the incident and was completely different in the way it was framed from the statement drafted by the applicant’s solicitor. The language was different and did not suggest that any directions or instructions were given by Mr Hunt. The applicant was borrowing the truck. The respondent submitted that greater weight would be given to the investigator’s statement as it was confirmed to a great extent by the evidence from Mr Hunt.
The respondent accepted that the applicant was employed before 17 December 2021 and was likely to be employed again in the new year. The applicant was not employed by the respondent on 17 December 2021.
On the question of incapacity, while the respondent submitted that the medical evidence was limited to the single certificate of capacity and report of Dr Maheepala. Dr Maheepala left open the possibility that the applicant could engage in some type of work.
The applicant gave evidence that he had performed a number of different jobs over the course of his employment. The respondent submitted that the applicant was capable of performing administrative type work, having worked as a salesperson for a period of 10 years up until 2012.
Although in April 2022, the applicant might not have been fit for work, it could be inferred that the applicant was now fit to do some type of work. The applicant’s own evidence suggested that he was planning to do work on the internet. Otherwise, the applicant could perform work as a handyman or use his administrative skills.
The respondent agreed that if a finding in favour of the applicant was made for the purposes of ss 4 and 9A, a general order should be made for s 60 expenses.

Applicant’s submissions in reply

The applicant submitted that there had been two different discussions described in the evidence. There was an early discussion about borrowing the truck for the purposes of the license test. A different conversation took place on 15 December 2021.
The different conversations being described explained the different tone in the applicant’s statements. The applicant submitted that there was nothing contradictory between the applicant’s statements.
Although the second statement was prepared by a solicitor, it was adopted by the applicant. There was no indication that the statement contained evidence that was not his.
The applicant noted that the injury was not sustained whilst the applicant was performing the driving test, but whilst at the mechanic on behalf of the respondent. The truck was not being made roadworthy for the purposes of the applicant’s driving test, but so that it could be repaired after the test for use in the respondent’s business. The applicant took the truck to the mechanic because Mr Hunt told or instructed him to do so.
The applicant submitted that the evidence overwhelmingly indicated that the applicant was totally incapacitated. The applicant was taking pain medication and Dr Maheepala indicated that the applicant would have difficulty working. In the event that the applicant was found to have some capacity, his earnings in suitable employment would be minimal.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a “worker” who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
The term “worker” is defined in s 4 of the 1998 Act as, subject to some exceptions not presently relevant,
“…a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing).”
There is no dispute in the present case that the applicant was, immediately prior to 17 December 2021, when he sustained injury, a “worker’ employed by the respondent under a contract of service.
Although there is evidence that a written employment contract was drafted, there is no evidence that it was signed and executed. The parties are, however, in agreement that there was an oral contract for the applicant to perform truck driving work for the respondent on a casual basis. Consistent evidence has been provided by the applicant and Mr Hunt as to the agreed remuneration and the start date.
The evidence also indicates that the applicant was paid for the work he performed. The payslips in evidence suggest that the applicant’s working hours varied from fortnight to fortnight.
There is a dispute between the parties as to whether the employment contract came to an end prior to 17 December 2021. The respondent relies on evidence from Mr Hunt that he initially did not intend to employ the applicant beyond the harvest period. Mr Hunt’s evidence is that the harvest period ended on 12 December 2021. The respondent also refers to evidence from Mr Hunt describing a conversation allegedly between the applicant and his sister Ashley Hunt in which the applicant is described as having said he had “finished up”. Mr Hunt said his sister interpreted that as the applicant terminating his employment and recorded such in the business’ records.
The applicant denies having ended his employment relationship with the respondent. The applicant relies on evidence that he worked beyond the harvest period and was paid for work on 13 and 16 December 2021. The applicant and Mr Hunt both agree that they had a conversation on 15 December 2021 foreshadowing that further work may be available after the Christmas break and they would have a further discussion about that after the break. The applicant relies on the advertisement for his position which indicated that a permanent casual role was available for the right candidate.
Despite describing the alleged conversation with Ashley Hunt, Mr Hunt confirmed in his most recent statement that the applicant’s employment was never terminated. Given that the applicant denies terminating the employment relationship himself, and no direct evidence has been provided from Ashley Hunt, I am not satisfied that it is safe to rely on Mr Hunt’s second-hand account of that conversation to conclude that the employment relationship was terminated by the applicant.
I am satisfied on the evidence before me that there was an ongoing employment contract for the applicant to perform casual truck driving work. I am satisfied that both the applicant and Mr Hunt had an expectation that further work might be made available to the applicant after the Christmas break in early 2022. I am satisfied that as at 17 December 2021, the applicant was a worker, as defined in s 4 of the 1998 Act.
The real issue is whether, at the time the applicant was injured, he was in the course of employment for the purposes of s 4 of the 1987 Act.
“The course of employment”, at the most basic level, involves the worker’s normal working hours at his place of employment. It has been said, “anything at all that happened to a man while he is at work happens in the course of his employment”: Weston v Great Boulder Gold Mines Ltd[1].
[1] [1964] HCA 59.
A number of cases have, however, held that the course of employment extends beyond a worker’s normal hours and place of work, to “the natural incidents connected with the class of work”. If a worker “is doing something which is part of or is incidental to his service”, he is in the course of his employment: Whittingham v Commissioner of Railways (WA)[2]. The course of employment is therefore not confined to the actual performance of the work that the worker is employed to do, but includes all things incidental to the performance of that work.
[2] [1931] HCA 49.
In Henderson v Commissioner of Railways (WA)[3] (Henderson)¸ Dixon J said:
“Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorized to do in order to carry out his actual duties.”
[3] [1937] HCA 67; (1937) 58 CLR 281 (at 294).
More recently in Comcare v PVYW[4], the majority of the High Court (French CJ, Hayne, Crennan and Kiefel JJ) said:
“The starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work. The next enquiry is what the employee was doing when injured. For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential enquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.”
[4] [2013] HCA 41; 303 ALR 1.

The applicant’s evidence is that he had intended to do a number of things on 17 December 2021. First, the applicant was to take the respondent’s truck to the mechanic to be inspected so that any repairs could be done, or parts ordered. The applicant then intended to use the truck to perform a compulsory licence test. The injury occurred at approximately 7.15am at the mechanic’s premises whilst the applicant was waiting for the mechanic to arrive. None of the applicant’s evidence in this regard is contradicted.
The parties are in disagreement as to whether the applicant had taken the truck to the mechanic’s premises under the instruction or at the direction of Mr Hunt.
The witness evidence describes two conversations between the applicant and Mr Hunt. The first conversation appears to have taken place shortly after the applicant commenced employment in early November. Both the applicant and Mr Hunt agreed that there was a conversation in which the applicant asked to borrow one of the respondent’s trucks to perform compulsory licence test. The applicant had initially intended to perform the test in November, but that was deferred due to COVID restrictions to 17 December 2021.
More importantly, there was then a separate conversation 15 December 2021, described by both the applicant and Mr Hunt. Both witnesses agreed that there was a discussion about the possibility of further work after the Christmas break. Both witnesses agree that there was also a discussion about the truck’s mechanical issues and that there was agreement that the applicant would take the truck to the mechanic before his driver’s test. Mr Hunt’s evidence suggests that the applicant offered to take the truck to the mechanic, and he agreed. The applicant’s evidence suggests that he was instructed or directed by Mr Hunt to take the truck to the mechanic before his test.
On either version of events, I am satisfied that on 17 December 2021, the applicant took the respondent’s truck to the mechanic, on the instruction and inducement of Mr Hunt or with his express authorisation and encouragement.
I am not satisfied that the applicant was taking the truck to the mechanic for private purposes. Whilst there was some suggestion that it might be preferable to have repairs to the squeaking fan belts done before the driving test, the predominant purpose in having the truck inspected and repaired on 17 December 2021 was to improve its roadworthiness for use in the respondent’s business.
The applicant’s evidence is that he expected to be paid for his work in taking the truck to the mechanic. This is evidenced by the timesheet in which he claimed 1.5 hours of work.
There is also evidence that the applicant was paid a sum of money for his time on 17 December 2021. I accept, however, that the payment was not made until it was demanded by the applicant’s solicitors. I am satisfied that the payment was made into the applicant’s solicitors trust account in March 2022. The evidence of payment of $341.20, is not, on its own, reliable evidence of the applicant being in the course of employment on 17 December 2021, in those circumstances.
Whilst the applicant’s evidence is clear, that in his mind he was on his employer’s business and in the course of employment when the injury occurred, there appears to be some ambiguity in Mr Hunt’s mind as to whether this was the case. Ultimately it matters little.
Applying the authorities above, I accept that in taking the truck to the mechanic on 17 December 2021, and lowering the bulbar to enable the truck to be inspected by the mechanic, the applicant was performing an activity which his employer encouraged or induced him to perform.
I am satisfied that the applicant was, at the time he was injured, in the course of employment. I am satisfied that the applicant sustained an injury pursuant to s 4(a) of the 1987 Act.
I note incidentally that submissions were made suggesting that the applicant had intended to use the truck for a private purpose on 17 December 2021, namely undertaking his driving test. Arguments were made by the applicant suggesting that the driving test was a matter incidental to the applicant’s employment also.
Ultimately, it matters little which view of that activity is correct. The applicant was injured not whilst driving to, from or in the course of the driving test. The injury occurred at the mechanic where the employer’s truck was to be inspected and repaired. Even if the applicant was also using the truck for a private purpose that day, a number of cases have held that a worker may engage in an activity for a dual purpose and yet be in the course of employment.
In Gray v Sydney South West Area Heath Service (Rozelle Hospital)[5] O’Grady DP noted that the worker was travelling from Ward 25 to Ward 28 at the hospital with the intention to commence her shift and that there was a dual purpose for that trip, that being to test ride a bicycle. He concluded that, having regard to her intention to ride to the specific point on those premises where she was to perform her shift, she was on her employer’s business whilst using the roadway and was thus in the course of her employment when injured.
[5] [2010] NSWWCCPD 125.
In Glenbuddah Pty Ltd v Williams[6], the worker was driving on a rural property where he worked, both to lead a friend’s car out of the property and to get to a tractor he wanted to work on, when he was injured. The Court of Appeal held he was driving for a dual purpose, that it was incidental to his employment and he was in the course of his employment.
[6] (1995) 12 NSWCCR 468.
In order for compensation to be payable, the applicant must also satisfy s 9A of the 1987 Act, which provides:
“9A No compensation payable unless employment substantial contributing factor to injury
(1)     No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)     The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f)    the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)     This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
Sub-section (3)(a) makes clear that the fact that injury arose in the course of the worker’s employment, is insufficient to establish that employment was a substantial contributing factor to the injury.
In the present case, the injury occurred at a time and place where the applicant’s employer encouraged or induced him to be. The applicant was attending to a truck owned by his employer and which he used to perform his usual work. I accept that there is little probability that the injury would have occurred had it not been for the applicant’s employment with the respondent. There is no suggestion that the applicant would have taken the truck to the mechanic had he not been employed by the respondent. I do not find the applicant’s health or any hereditary risks to be relevant. I am not satisfied that the applicant’s lifestyle and activities outside the workplace are relevant.
In all the circumstances, I am satisfied that there was a causal connection between the applicant’s employment and his injury that was real and of substance. I am satisfied that employment was a substantial contributing factor to the injury for the purposes of s 9A of the 1987 Act.
I am therefore satisfied that the applicant sustained an injury that is compensable under the 1987 Act.

Incapacity

Having found that the applicant sustained a compensable injury, there is a separate dispute as to the applicant’s capacity for work as a result of the injury.
The only medical evidence before me indicates that the applicant has, since the time of the injury, had no current work capacity. The only certificate of capacity certifies the applicant as having no current work capacity. Whilst Dr Maheepala suggests the applicant may, at some stage, depending on his response to treatment and physiotherapy have some capacity to work in suitable duties, I do not accept that Dr Maheepala considered the applicant to have such capacity presently.
Having regard to the applicant’s age, the fact that he has predominantly performed work as a truck driver, and the nature of his injury, including his evidence of ongoing constant moderate to severe pain, and difficulties with sleep, pushing and pulling objects, standing for prolonged periods, walking, driving, and performing his normal domestic duties, I accept that the applicant currently has and has since the injury had, any no capacity to engage in suitable employment.
I find that the applicant is entitled to an award of weekly compensation on the basis that he has had and continues at the time of this decision to have no current work capacity.
The PIAWE rate has been agreed at $1,653.24.
The applicant is entitled to an award for weekly benefits pursuant to ss 36(1) and 37(1) of the 1987 Act in their current form, based on that PIAWE figure, as periodically indexed, from 17 December 2021 to date and continuing.

Entitlement to medical expenses

The parties have agreed, and I accept, that in the circumstances of this case it is appropriate that an order of a general nature be made that the respondent pay the applicant’s reasonably necessary medical and related treatment expenses pursuant to s 60 of the 1987 Act upon production of accounts, receipts and/or Medicare notice of charge.

[2022] NSWPIC 382

15 July 2022