Bott v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bott v Workers Compensation Nominal Insurer (icare) [2021] NSWPIC 474
APPLICANT:	Madeline Emily Bott
FIRST RESPONDENT:	Myles Hunter Transport Pty Limited
SECOND RESPONDENT:	Workers Compensation Nominal Insurer (icare)
MEMBER:	John Isaksen
DATE OF DECISION:	19 November 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum death benefit and funeral expenses by de facto spouse of the deceased; first respondent puts in issue whether the deceased was a worker (pursuant to section 4 of Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)) and/or deemed worker (pursuant to clause 2 of Schedule 1 of the 1998 Act); reference to Stevens v Brodribb Sawmilling Co P/L, On Call Interpreters and Translators Agency P/L v Commissioner of Taxation (No.3) and Malivanek v Ring Group P/L on the issue of worker; reference to Humberstone v Northern Timber Mills and Scerri v Cahill on the issue of deemed worker; relevant date when interest on the lump sum death benefit should run from and rate of interest to be applied; Held – deceased was a worker because he was working in the business of the first respondent and not his own business as at the date of his injury and death; worker was also a deemed worker because he was not regularly carrying out contract driving for himself as at the date of his injury and death; lump sum death benefit to be paid to the applicant, as well as the payment of funeral expenses; interest awarded at the rate of 2% per annum from when full particulars of the claim were provided to the respondents.
DETERMINATIONS MADE:	1. Ethan William McCauley Hunter (the deceased worker) was a worker who was employed by the first respondent when he died as a result of injury sustained in the course of his employment with the first respondent on 23 February 2021. 2. The deceased worker was also a deemed worker within the meaning of clause 2 of Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and taken to be employed by the first respondent when he died as a result of injury sustained in the course of his employment with the first respondent on 23 February 2021. 3. The deceased worker’s de facto spouse, Madeline Emily Bott, was dependent upon the deceased worker for support as at the date of his death. 4. There were no other persons dependent upon the deceased worker for support. 5. The lump sum death benefit payable in accordance with section 25 of the Workers Compensation Act 1987 (the 1987 Act) at the date of death of the deceased worker is $834,200. 6. The first respondent was not insured as required by the 1987 Act as at the date of injury and death of the deceased worker.
ORDERS MADE:	1. The first respondent is to pay the applicant, Madeline Emily Bott, the lump sum death benefit of $834,200 pursuant to section 25 and section 85A of the 1987 Act. 2. The first respondent is to pay the applicant the sum of $12,534.75 for funeral expenses, as provided for by section 26 of the 1987 Act. 3. Pursuant to section 109 of the 1998 Act, the first respondent is to pay interest on the lump sum death benefit at the rate of 2% per annum from 9 September 2021 to the date of payment of that benefit to the applicant. 4. The second respondent is to pay compensation awarded against the first respondent from the Workers Compensation Insurance Fund under section 154D of the 1987 Act. 5. The first respondent is to reimburse the second respondent for amounts paid out of the Insurance Fund in respect of compensation awarded against the first respondent pursuant to section 142B (2) and section 145 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

This is an application brought by Madeline Emily Bott (the applicant), the de facto spouse of the late Ethan William McCauley Hunter (the deceased), for the payment to her of the lump sum benefit provided for by section 25 of the Workers Compensation Act 1987 (the 1987 Act) due to the death of the deceased as a result of injury sustained on 23 February 2021. The lump sum benefit payable as at the date of death of the deceased worker is $834,200.
The deceased died from multiple injuries sustained when a B double truck that he was travelling in with Mark Fenton collided with a train locomotive with freight wagons, at a level crossing at Bribbaree.
Ms Bott claims that the deceased was employed by the first respondent, Myles Hunter Transport Pty Limited, as at the date of his injury and death either as a worker within the meaning of section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), or alternatively, a deemed worker as provided for by clause 2 of Schedule 1 of the 1998 Act, and that the deceased died as a result of injury sustained in the course of his employment with the first respondent.
The first respondent denies that it employed the deceased and disputes that the deceased was a worker within the meaning of the workers compensation legislation, and disputes that the injury and death of the deceased arose out of or in the course of his employment with the first respondent.
The first respondent has advised that it was uninsured as at the date of death of the deceased worker. The second respondent, Workers Compensation Nominal Insurer, has been joined to these proceedings pursuant to section 140 of the 1987 Act.
There were no other persons dependent for support upon the deceased as at the date of his death. The parents and siblings of the deceased worker have all provided statutory declarations stating they do not wish to claim arising from the death of the deceased.
Ms Bott also claims the cost of funeral expenses in the amount of $12,534.75, and interest on the lump sum death benefit from the date of death of the deceased.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) whether the deceased was a worker within the meaning of section 4 of the 1998 Act, or alternatively, a deemed worker as provided for by clause 2 of Schedule 1 of the 1998 Act, and was employed by the first respondent as at the date of his injury and death on 23 February 2021, and
(b) whether the applicant is entitled to the payment of interest on the lump sum benefit, and if so, the date when the payment of interest should run from and the rate of interest to be applied.

PROCEDURE BEFORE THE COMMISSION

The parties attended a conference and hearing on 10 November 2021. 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.
Mr Morgan appeared for the applicant, instructed by Mr Tancred. Mr Beran appeared for the first respondent, instructed by Mr Wilkins. Ms Balendra appeared for the second respondent, instructed by Mr Myles.
The hearing was conducted by video in accordance with the protocols set by the Commission as a result of the coronavirus pandemic.
Mr Beran for the first respondent made an application for an adjournment to allow David Knight Transport Pty Ltd to be joined as a party to the proceedings pursuant to section 20 of the 1987 Act on the basis that there was a contract between the first respondent (as contractor) and David Knight Transport Pty Ltd (as principal), and as the first respondent did not have a policy of insurance, then David Knight Transport Pty Ltd would be liable to pay compensation to Ms Bott.
Mr Beran submitted that uncertainty would be created if there was a finding in this dispute that the deceased was a worker and/or deemed worker, but there were different findings made on that issue in subsequent proceedings between the first respondent and David Knight Transport Pty Ltd.
The application for adjournment was opposed by Mr Morgan.
I rejected the application made by Mr Beran on the grounds that this dispute primarily involved a dispute as to whether the deceased was a worker and/or deemed worker in the employ of the first respondent, and that this dispute should be determined forthwith. Furthermore, the first respondent had a separate right action that could be pursued against David Knight Transport Pty Ltd pursuant to section 20 of the 1987 Act if the first respondent chose to pursue such action.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a)    the Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply filed by the first respondent;
(c)    Reply filed by the second respondent and attached documents;
(d)    Application to Admit Late Documents filed by the applicant on 6 September 2021;
(e)    Application to Admit Late Documents filed by the applicant on 15 September 2021;
(f)    Application to Admit Late Documents filed by the first respondent on 5 October 2021;
(g)    Application to Admit Late Documents filed by the applicant on 2 November 2021, and
(h)    Application to Admit Late Documents filed by the first respondent on 9 November 2021.

Oral evidence

There was no application to adduce oral evidence or to cross examine the applicant, or any other witnesses who have provided statements in this dispute.

The applicant’s evidence

Ms Bott has provided statements dated 28 April 2021, 23 July 2021, and 28 October 2021.
Ms Bott states that she and the deceased began to live together in March 2014 when they moved into a house at Dubbo and the deceased was working as a diesel mechanic with Inland Truck.
Ms Bott states that she and the deceased moved to live in Grenfell in 2016. She states that from the time they moved back to Grenfell, the deceased undertook a range of agricultural work for the family business, WM Hunter and Sons. She states that the deceased also worked as a mechanic at Moxey Farms in Gooloogong, but he resigned from that employment in January 2021. Ms Bott has provided a copy of an email dated 7 January 2021 wherein the deceased gives notice of his resignation from Moxey Farms on that day.

Ms Bott states that the deceased was always looking to improve their financial position and in more recent times purchased a front end loader to perform work that could earn them more money. Ms Bott has provided a copy of the invoice book used by the deceased for the work he undertook with the front end loader and states that the work recorded in that book is the sum total of the front end load work performed by the deceased.
Apart from a record of labouring work done in November 2016, the work recorded in that invoice book for loader work is:
22 February 2020  70 hours  Loader hire
2 March 2020  11 hours  Dam clearing
22 June 2020  15 hours  Loader hire
19 December 2020  95 hours  Windrowing
Ms Bott has also provided a schedule of log book entries made by the deceased for the driving work he did. There are 12 trips recorded between 28 October 2016 and 16 February 2021, with only two trips in December 2019, and then the next and last trip recorded as occurring on 16 February 2021.
Ms Bott states that the two trips in December 2019 were in a truck owned by Lisa Coleman, who was married to Luke Miller.
Ms Bott states that the last trip on 16 December 2020 was work for Myles Hunter. Ms Bott states that she understood from conversations that she had with the deceased that this job was undertaken because Myles Hunter had sustained an injury.
Ms Bott states that in order for her and the deceased to build up their own experience in farming, they put in a bid for a lease at a property near Grenfell in November 2020. Ms Bott has provided a copy of a letter dated 9 November 2020 sent by the deceased, making a bid for the lease on that property.

Ms Bott states that the deceased had “too much on his plate” with his employment and work in the family farming business to do much else in regard to a loader business and he did not have enough time or the capacity to establish and work in the operation of a transport or trucking business. She states that the deceased liked to keep busy and was always helping various people in the Grenfell area with mechanical issues on their vehicles.

Ms Bott also states:
“Ethan and I had a very close and loving relationship. We spoke often and exchanged text messages on our mobile phones throughout the day. We were very much involved in each other's lives and I believe we kept each other informed about each other's lives.”

The evidence of John Hunter

John Hunter is the father of the deceased and has provided a statement dated 1 November 2021.
John Hunter states that he and his deceased son had a very good and close relationship, and they would frequently speak about his son’s plans for the future. John Hunter states that there were many occasions when he and his wife had spoken to their son about taking over the family business and their accountant had provided some financial advice in regard to this.
John Hunter states that the deceased never said anything about a desire to get into fulltime commercial contract driving. He states that the deceased would not have had time to establish such a business, given what was intended for the involvement of the deceased in the family farming business.
John Hunter states:
“Ethan and I did have discussion about him purchasing a Kenworth truck in his own name but when we investigated the costs of registration and insurance as compared to the amount of work he planned to do and the amount of revenue he would generate we realised it would not be feasible to have it in his name so I purchased this truck.”
John Hunter has provided a copy of the tax invoice for the purchase of that Kenworth truck for an amount of $33,000 on 4 January 2021. He states the truck was purchased by himself and his wife for use in the family farming business.
John Hunter states that he is aware that the deceased carted eight loads of grain over three days in December 2020 for WM Hunter & Sons, in a truck owned by the WM Hunter & Sons partnership. This work was done pursuant to a contract between WM Hunter & Sons and Lake Hawdon Props Pty Ltd.

The evidence of Myles Hunter

Myles Hunter provided a statement to NSW Police dated 2 April 2021.
In that statement Myles Hunter confirmed that he and the deceased were cousins. He states that he is the manager of Myles Hunter Transport and owned the truck that the deceased and Mark Fenton were travelling in on the day of the accident. He states that his business was subcontracting to Knights Transport, and that Knights Transport was using his truck to tow their trailers.
Myles Hunter states that the deceased had never undertaken any work for him until the day of the accident. He states that Mark Fenton was subcontracting to his business and that the deceased was “going to be subcontracting through me.” He states that both Mr Fenton and the deceased had their own ABN numbers.
Myles Hunter answered some questions asked by an investigator retained by the second respondent. Those questions and answers included the following:
“Did you control when the claimant worked?
No, The Claimant was considering working on a basis which suited him with his main work requirements on his farm and other work commitments.”
“Was the relationship I work performed on a continuing basis e.g. start date but no finishing date?
No, there was not expectations on continued set work. Work was discussed on an arrangement that fitted with claimant’s other work arrangements and a need basis for Myles Hunter Transport at any time. No arrangements had been finalised as it was unclear if this type of work was even suited to the claimant. The truck has no set schedules or contracts it was on demand basis to seasonal requirements.”

Myles Hunter has provided two further statements dated 28 September 2021 and 9 November 2021.
Myles Hunter states that he and the deceased grew up together on the family farm and were the best of friends. He states that the deceased’s passion was the family farm, and that the deceased was the only son or nephew of four brothers who owned and operated WM Hunter and Sons to return to work on the farm.
Myles Hunter states that he had numerous conversations with the deceased about the deceased getting into contract driving. He states that the deceased purchased a second hand prime mover in January or February 2021. Myles Hunter also states:
“At the time of the accident, I am certain he had not used the new truck for any work under his ABN but had driven trucks for other businesses and people.”

Myles Hunter states that there were quiet periods on the farm, so that the deceased needed to do something else. He states that the deceased’s next passion after the farm was trucks and transport. He states that in September 2020 the deceased approached him about getting some truck driving work, but that he was too busy himself and did not have any other work for the deceased to do.

Myles Hunter states that the deceased resigned from Moxey Farms in October 2020 in attempt to build his own trucking business. He concludes from the wage records from Moxey Farms and WM Hunter and Sons that the deceased stopped work with Moxey Farms in October 2020 due to the demands of harvest, but he did not resign his employment with Moxey Farms until 7 January 2021.
Myles Hunter states that he was advised that the deceased did six to ten deliveries between October 2020 and January 2021 for Luke Miller, using Mr Miller’s trucks and trailers. He states that “as far as I am aware” those deliveries were done through the ABN of the deceased or was cash in hand, although he cannot confirm this.
Myles Hunter states those deliveries for Luke Miller would not have been recorded in the deceased’s log book because it is not necessary to log trips under 100 kilometres. In support of that contention, Myles Hunter states that the work that the deceased did for Lake Hawdon Props Pty Ltd, which is referred to by John Hunter, is not in the deceased’s log book.

Myles Hunter states that during 2020 the deceased did several jobs using the truck from WM Hunter and Sons for a property “Myee”, but payment for this work was made to WM Hunter and Sons and not to the deceased.
Myles Hunter states that the deceased also owned a wheel loader and that payment for the work with the loader was made direct to the deceased, but he does not know how much of this kind of work was conducted by the deceased.
Myles Hunter states that the deceased did a trip for him on 16 February 2021 when he became indisposed. He states that there was never a discussion between them regarding payment for this job as it was the deceased helping him out, just as he would help the deceased out when needed.
Myles Hunter states that in January 2020 he entered into an agreement with David Knight Transport for the use of his truck for the delivery of gypsum from Mildura to Eurabba Station. He states that he contacted the deceased about performing some of this driving work and the deceased was happy to get some experience of such work for a few days. He states that the work would be at the deceased’s own convenience and availability.
Myles Hunter states that he had a couple of beers with the deceased on the night of 22 February 2021. He states that he informed the deceased that the work was not long term, and he would be sharing the job with Mark Fenton. He states that he said to the deceased that it was up to the deceased and Mr Fenton to work out a schedule for the driving they would do. He also states that the deceased said he was not comfortable in unloading gypsum and he said to the deceased that Mr Fenton would show this to him between loads.
Myles Hunter states that he also discussed with the deceased how he was to be paid, and the deceased said that he wanted to be paid through his ABN and wanted to build up his business account so that he could possibly purchase trailers through the business. He states that there was a verbal agreement that the deceased would be paid 50 cents per kilometre, $1.10 per ton, and $69 per night.

Myles Hunter states that he has never received an invoice from the estate of the deceased for the trip that the deceased was to do on 23 February 2021, but this was because that trip was never commenced by the deceased.

The evidence of Stephen Cations

Stephen Cations has provided a statement dated 15 September 2021.
Mr Cations states that the deceased visited his home on 13 September 2020 and told Mr Cations that he was hoping Myles Hunter would buy a second truck so that he could do truck driving. He states that trucks, tractors and machinery were the passion of the deceased.
Mr Cations states that on 15 October 2020 the deceased visited and spoke eagerly of carting grain through the harvest for the “Myee” property.
Mr Cations states that for three days from 13 December 2020 the deceased carted wheat loads for the “Myee” property, but the payment for this work was made to WM Hunter and Sons.

Mr Cations states that on 7 February 2021 the deceased brought his newly purchased Kenworth truck to show Mr Cations. He states that the deceased spoke about his plans for the family farm, which included putting the Kenworth truck to work during the year when the farm was quiet.
Mr Cations states that they also discussed the deceased purchasing an aluminium tipper, and that the deceased said he was keen to purchase the tipper so that he could seek out future grain harvesting jobs. He states that they spoke on the phone a few days later and the deceased had wanted to look at the tipper because it was a good price. He states that the deceased died before a view of the tipper could be arranged.

FINDINGS AND REASONS

Whether the deceased was a worker within the meaning of section 4 of the 1998 Act, and was employed by the first respondent as at the date of his injury and death on 23 February 2021

Section 4 of the 1998 Act relevantly provides the definition of “worker” as:

“worker means 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 where the contract is oral or in writing)…”

The determination of whether an injured person who claims workers compensation is a worker involves a consideration of all relevant indicia in the relationship between the person claiming to be a worker and the entity which engages that person to provide his or her labour. In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; 63 ALR 513 (Stevens), Mason J said at [9]:
“… the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it as merely one of a number of indicia which must be considered in the determination of the question… Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee.”

Wilson and Dawson JJ in Stevens said at [10] that “the control test in the first instance remains the surest guide to whether a person in contracting independently or serving as an employee” but then said at [11-12]:

“The other indicia of the nature of the relationship have been variously stated and have been added to from time to time. Those suggesting a contract of service rather than a contract for services include the right to have a particular person to the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like. Those which indicate a contract for services include work involving a profession, trade or distinct calling on the part of the person engaged, the provision by him of his own place of work or of his own equipment, the creation by him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax. None of these leads to any necessary inference, however, and the actual terms and terminology of the contract will always be of considerable importance.
Having said that, we should point out that any attempt to list the relevant matters, however incompletely, may mislead because they can be no more than a guide to the existence of the relationship of master and servant. The ultimate question will always be whether a person is acting as the servant of another or on his own behalf and the answer to that question may be indicated in ways which are not always the same and which do not always have the same significance.”

In this dispute there is evidence to support a finding that the deceased was a worker within the meaning of section 4 of the 1998 Act, and evidence to support a finding that the deceased was working as an independent contractor for his own profit.
The evidence which supports a finding that the deceased was a worker within the meaning of section 4 of the 1998 Act is:
(a)    that the deceased did not provide his own equipment for the job he was requested to do by the first respondent. The deceased was to drive a truck that was owned by the first respondent;
(b)    that the deceased did not have a distinct profession or calling in carting and unloading gypsum. The deceased had to undergo training from Mr Fenton in regard to unloading gypsum before the deceased commenced the intended journey to Mildura, and
(c)    that the deceased was working for the business of the first respondent by ensuring that loads of gypsum continued to be carted from Mildura in accordance with the agreement the first respondent had with David Knight Transport.
In regard to the contention that the deceased was working in the business of the first respondent rather than his own business, Mr Morgan refers to what was said by Bromberg J in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No.3) [2011] FCA 366; 279 ALR 341 (On Call Interpreters) at [208]:

“Simply expressed, the question of whether a person is an independent contractor in relation to the performance of particular work, may be posed and answered as follows:
Viewed as a ‘practical matter’:
(i) is the person performing the work an entrepreneur who owns and operates a business; and,
(ii) in performing the work, is that person working in and for that person’s business as a representative of that business and not of the business receiving the work?
If the answer to that question is yes, in the performance of that particular work, the person is likely to be an independent contractor. If no, then the person is likely to be an employee.”
That passage was quoted with approval by DP Roche in Malivanek v Ring Group Pty Ltd [2014] NSWWCCPD 4 (Malivanek), when the Deputy President said at [184]:

“…Suffice to say that, in cases of this kind in the future, the parties would be well advised to give careful attention the questions posed byBromberg J in On Call Interpreters, which are based on the majority decision in Hollis. A consideration and balancing of the indicia is critical, but the focal point around which one examines the indicia is whether the applicant is working in the business of another, or in the business of the applicant.”
The evidence which supports a finding that the deceased was not a worker within the meaning of section 4 of the 1998 Act, but rather an independent contractor, is:

(a)    that the deceased was to be paid for the result of work undertaken for the first respondent, and that he was not to be paid an hourly rate for the labour that he provided for the first respondent. Mr Beran refers to the discussion between Myles Hunter and the deceased regarding how the deceased was to be paid. He also refers to the tax invoice issued by the estate of the late Mark Fenton which is in evidence, which sets out how payment was to be made by the first respondent based upon kilometres travelled and tonnage, plus an allowance for overnight accommodation;
(b)    that Myles Hunter said to the deceased that Mr Fenton and the deceased could work out a schedule for the driving that they would do for the first respondent;
(c)    that Myles Hunter states that the driving work that the deceased would do for the first respondent would be fitted in with other work arrangements that the deceased had to meet;
(d)    that the deceased would render a tax invoice inclusive of GST, which meant that the deceased would be responsible for his own tax obligations, and
(e)    that Myles Hunter states that the deceased wanted to be paid through his own ABN.
In regard to the mode of remuneration, Bromberg J said in On Call Interpreters at [277]:
“Its basic premise is that employees are remunerated on a time-basis for the labour provided whereas independent contractors are not and are paid for a result.”
However, in On Call Interpreters, Bromberg J was also wary of relying upon an ABN as being a significant indicator of independent remuneration, as opposed to being in an employment relationship, when he said at [244]:
“Each of these interpreters perceived themselves to be self-employed and had an ABN. Their evidence also indicated that they interacted with the ATO on the basis that they conducted a business. I attach little weight to those indicators. Obtaining an ABN is a simple process in which the existence of a business is not required to be demonstrated. Further, it is not surprising that in circumstances where these individuals perceived themselves to be self-employed that some of the regulatory requirements of a business were in evidence ... In the absence of other indicators of the existence of a business, the fact that some of the regulatory requirements of a business were in place, is likely to have had more to do with an incorrect self-assessed conclusion of the existence of a business than the fact of such a business existing.”
There is a dispute between Ms Bott and Myles Hunter as to whether the deceased saw the deceased on the night of 22 February 2021, which places what Myles Hunter states was discussed himself and the deceased in doubt. However, I accept as logical and reasonable that at some stage Myles Hunter would have spoken to the deceased about how the deceased was to undertake the work required of him and how the deceased was to be remunerated.
That the deceased was to be paid for an outcome required of the first respondent, rather than at an hourly rate, and that payment was to be made as a gross amount pursuant to an ABN provided by the deceased, indicates that the deceased was engaged by the first respondent as an independent contractor.
However, DP Roche in Malivanek emphasises that the ‘focal point’ for the indicia of whether a person claiming workers compensation benefits is a worker or independent contractor is whether that person is working in the business of another, or his or her own business.
There is compelling evidence that the deceased was working in the first respondent’s business at the time of his injury and death, and not a business of his own. Of particular significance is that the deceased was not providing his own equipment, but instead was to drive a truck that was part of the first respondent’s business. This was so the first respondent could meet its own contractual obligations to cart gypsum.
Not only was the deceased not driving his own truck, but the deceased did not have a distinct profession or skill in carting and unloading gypsum. From my review of the evidence, what was occurring immediately prior to the accident was more than mere induction as an insurance requirement to drive the truck, which was a submission made by Mr Beran.
The deceased was being trained in the operation of a task, which was not part of his usual employment or work skills. The job of carting gypsum which the deceased was taking on was not a business which he ordinarily undertook. That is consistent with the evidence provided by Myles Hunter that Mr Fenton was to show the deceased how to unload the gypsum before the deceased embarked on his trip to Mildura.
I am also not satisfied from a review of the evidence that the deceased regularly carried on his own business of contract driving as claimed by the first respondent. I will provide my reasons for this conclusion when I address the separate issue of whether the deceased was a deemed worker as provided for by clause 2 of Schedule 1 of the 1998 Act, because an integral part of meeting that separate statutory provision is to determine whether the deceased regularly carried on a contract driving business.

After consideration of the various indicia in the contractual relationship between the deceased and the first respondent, but also having particular regard as to whether the deceased was working in the business of the first respondent or working in his own business, I am satisfied that the deceased was a worker within the meaning of section 4 of the 1998 Act.

Whether the deceased was a deemed worker within the meaning of clause 2 of Schedule 1 of the 1998 Act, and was employed by the first respondent as at the date of his injury and death on 23 February 2021

If I am wrong in my determination that the deceased was a worker, then I need to determine whether the deceased was a deemed worker as provided for in clause 2 of Schedule 1 of the 1998 Act. That clause relevantly provides:
“(1) Where a contract—
(a)to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor's own name, or under a business or firm name), or
(b)is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.”
The predecessor to this clause was section 6 (3A) of the Workers’ Compensation Act 1926 (the 1926 Act), and a summary of the application of section 6 (3A) and now this clause in the 1998 Act was provided by Dixon J in Humberstone v Northern Timber Mills [1949] HCA 49; 79 CLR 389 at [402]:
“…it seems reasonable to suppose that it was considered proper that a person conducting a business in the course of which he contracted to perform work should himself carry the risk of personal injury as one of the hazards of his business, while the man who worked under contract but only for the employer or without any general trade or business or outside his trade or business should, like an ordinary employee, be insured by the Act against the risk of injury in his work.”
In Turner v Stewardson [1962] NSWR 137 (Turner), Evatt CJ, Herron and Collins JJ in the Full Court of the Supreme Court of New South Wales said of section 6 (3A) of the 1926 Act at [139]:
“Looked at broadly, the Legislature meant to provide that persons who are in business for themselves, and who systematically and regularly accept work to be done under contract, and who hold themselves out as open to be employed under contract, are expected to undertake the risk of injury and not rely for compensation upon the principal whose contract work they are performing at the moment of injury.”
In Scerri v Cahill (1995) 14 NSWCCR 389 (Scerri), Bainton AJA, with Kirby ACJ and Rolfe AJA agreeing, set out the requirements for the application of clause 2 of Schedule 1 at [399]:
“On its proper construction, clause 2 of Schedule 1 requires an applicant who relies on it to establish each of the ingredients, both positive and negative which identify the relevant ‘work’.
What he must establish is:
1.that he was a party to a contract with the respondent to perform work;
2.that the work exceeds $10 in value;
3.that the work is not work incidental to a trade or business regularly carried on by the applicant in his own name or under a business or firm name; and
4.that the applicant has neither sublet the contract nor employed workers in the performance of it.”
The deceased was a party to a contract with the first respondent to perform work and the value of the work to be performed exceeded $10 in value. Myles Hunter does not state that the deceased could sublet the contract or employ workers to perform the contract. There is no other evidence that the deceased could sublet the contract or employ workers to perform the contract. Myles Hunter answers “not applicable” when asked by the agent of behalf of the second respondent if the deceased must ask permission to subcontract any of the work.
The crucial issue then is whether the work that the deceased was to undertake for the first respondent on 23 and 24 February 2021 was work incidental to a business which was regularly carried on by the deceased.
Mr Beran submits that the evidence supports a finding that the deceased drove vehicles, sometimes for WM Hunter and Sons, but also regularly in his own name. He submits that the regular driving of vehicles by the deceased in his own name means that the deceased could not be regarded as a deemed worker employed by the first respondent at the time of his injury and death.

From my review of the evidence, I am not satisfied that the deceased regularly carried on a business of contract driving as claimed by the first respondent.
The evidence discloses that in regard to driving work undertaken by the deceased for his own profit, he only did two days of truck driving during 2019, being on 5 and 6 December 2019. Almost three months go by before the deceased records 70 hours of loader work in late February 2020 in his invoice book, and then 11 hours of dam clearing work in March 2020. Almost four months then go by before the deceased records 15 hours of loader work in late June 2020 in his invoice book.
The next driving work undertaken by the deceased for his own profit which appears in his invoice book is 95 hours of windrowing in late December 2020.
John Hunter states that in December 2020 the deceased carted eight loads of grain over three days for Lake Hawdon Props Pty Ltd, but that work was undertaken by the deceased as an employee of WM Hunter & Sons, and not as an independent contractor.
Myles Hunter states that during 2020 the deceased did several truck driving jobs for a property “Myee”, but also states that payment for this work was made to WM Hunter and Sons and not to the deceased. Therefore, this work could not be regarded as driving work being conducted by the deceased in his own name or business.
The only other truck driving job in the records of the deceased is on 16 February 2021, which Myles Hunter states was undertaken by the deceased to help him out when he had taken a fall, and for which no payment was sought by the deceased.
Therefore, for some 15 months prior to the death of the deceased, there were very few driving jobs undertaken by the deceased for his own profit which can be confirmed by contemporaneous records or by the evidence of witnesses in this dispute. Furthermore, those jobs were not being undertaken by the deceased on a systematic or regular basis.
None of those driving jobs after 6 December 2019 which are recorded or referred to in the evidence were actual truck driving jobs (as opposed to other types of driving jobs) in which the deceased was paid as an independent contractor. In my view, there is a substantial difference between driving a semi-trailer and operating a front end loader or a windrower.
Myles Hunter states that the deceased resigned his employment with Moxey Farms in October 2020 to build his own trucking business. However, from the evidence I have reviewed, the deceased did not undertake any truck driving, as opposed to other driving work, from October 2020 onwards for his own profit, until he agreed to undertake the trip to Mildura on 23 February 2021.

Accordingly, there is just no reliable evidence that the deceased was “ramping up” his independent contract driving leading up to the time of his death as is claimed by the first respondent. The evidence relied upon by the first respondent goes no higher than a belief or understanding by Myles Hunter that the deceased was doing contract driving work in the Grenfell area, but this is not matched by the available evidence.
I have not included the six to ten deliveries which Myles Hunter claims the deceased did for Luke Miller between October 2020 and January 2021 in my review of those driving jobs which the deceased undertook in the 12 months or so leading up to his death because I am not satisfied that these deliveries did occur.
Firstly, John Hunter disputes this. John Hunter does not provide any reasons for this other than to state that it is “a complete fabrication.” However, I would accept that John Hunter would have had a good understanding of the work which his son was doing between October 2020 and January 2021, because the wage records from John Hunter’s business, WM Hunter and Sons, record that the deceased was working 80 hours per fortnight for that business. John Hunter would have been seeing the deceased regularly throughout this period of time.
Secondly, Myles Hunter states that he was “advised” that the deceased did these deliveries for Mr Miller, but he does not state how he was made aware of this. His statement that the deceased was paid either through his ABN or cash in hand is mere conjecture. There are also no details provided of what the deceased might have been delivering for Mr Ellis.
Thirdly, there is no evidence from Luke Ellis, whose evidence on this issue might well have been able to assist on this contentious issue.

I therefore cannot be satisfied from the available evidence that the deceased undertook the six to ten deliveries for Luke Miller between October 2020 and January 2021 as alleged by Myles Hunter. Furthermore, if I am wrong in this conclusion I have made on this issue, those deliveries amount to about two trips per month. That is hardly indicative of regular work being carried out in a contract driving business.
Mr Beran relies on the claims made by both Myles Hunter and Mr Cations that the deceased purchased a truck in January or February 2021 for the purposes of undertaking contract truck driving. He submits that the evidence provided by John Hunter on this issue supports a finding that the truck was purchased so that the deceased could undertake contract truck driving work, but that for financial reasons a decision was made that the truck should be in the name of John Hunter.
The difficulty for the first respondent on this issue is that there is no tangible evidence of the deceased driving that truck in his own business up until the date of his death. Indeed, Myles Hunter states that he is certain that the deceased had not used the new truck under the ABN of the deceased.
I agree with the submission made by Mr Morgan that what Myles Hunter and Mr Cations claim was said by the deceased in conversations with them prior to his death, including the communications between the deceased and Mr Cations regarding the purchase of an aluminium tipper, amount to no more than statements of unfulfilled intention on the part of the deceased. Even if the deceased was planning to undertake some contract truck driving sometime in the future, there is no reliable or tangible evidence that this was being undertaken by the deceased before his death.
Furthermore, as is also pointed out by Mr Morgan, there is a lack of any other evidence that the deceased was regularly carrying on a truck driving business. The deceased had no business name, no regular transport routes that he was driving, and no core list of customers.
There is therefore insufficient evidence for a finding to be made that is consistent with what the Full Court said in Turner that the deceased “systematically and regularly” accepted work to be done under contract, and that the deceased held himself out to be employed under contract.
The evidence discloses that prior to his death the deceased worked full time on the family farm, but that there were occasions when he did work elsewhere for his employer, WM Hunter and Sons, there were occasions when he undertook work for his own direct profit (but this involved a variety of tasks not limited to truck driving), and there were occasions when he did work for no reward, such as when he did a trip for Myles Hunter on 16 February 2021. That evidence is consistent with the assertion made by Ms Bott that the deceased had “too much on his plate” to establish and operate a trucking or transport business.
That evidence also supports the submission made by Mr Morgan, which I accept, that the deceased was a young man living and working in a rural location where it was not unusual to undertake the occasional work for profit outside of his full time employment, especially when there might be quiet times on the farm. However, such work did not amount to the deceased operating his own separate and discrete business, nor was such work performed on a regular and systematic basis by the deceased.

Mr Beran refers to there being no need for a truck driver to record trips that are less than 100 kilometres in support of the first respondent’s claim that the deceased was regularly undertaking independent driving work in the months leading up to his death. However, Myles Hunter is not able to provide specific details of any trips of less than 100 kilometres which were undertaken by the deceased, with the exception of the deliveries he claims the deceased did for Luke Ellis. I have already provided my reasons as to why I cannot be satisfied that those deliveries were undertaken by the deceased. There is no other evidence of the deceased regularly carrying out contract driving, whether it that be within or outside a 100 kilometre radius of the address of the deceased.
There are conflicts in the evidence between Ms Bott and Myles Hunter, particularly in regard to what were the movements of the deceased on the night before his death and which of the two of them knew the deceased the best. I am sure that it has distressing for both Ms Bott and Myles Hunter to have to address these issues.
However, the conflict of evidence on those two particular issues does not alter the finding that I have made from the available evidence, and which I have already referred to, being that that the deceased did not regularly carry on a business of contract driving as claimed by the first respondent.
Having undertaken a review of the evidence, I am satisfied that Ms Bott has met the criteria set out in Scerri, whereby the deceased was employed by the first respondent in accordance with the requirements of clause 2 of Schedule 1 of the 1998 Act.

Whether the deceased died as a result of injury sustained in the course of his employment with the first respondent

The Reply filed by the first respondent included a denial of liability on the grounds that the injury and death of the deceased did not arise out of or in the course of his employment with the first respondent. However, Mr Beran did not advance any submissions on this particular issue at the hearing. The primary issue between the parties was whether the deceased was a worker and/or deemed worker in the employ of the first respondent.
For the sake of completeness to this dispute, I am satisfied that the deceased was injured in the course of his employment with the first respondent, and the injuries sustained by the deceased resulted in his death.
Myles Hunter states that he said to the deceased when they met on the night before the accident that Mark Fenton would show the deceased how to unload gypsum.
I have already referred to the dispute between Ms Bott and Myles Hunter as to whether the deceased saw the deceased on the night of 22 February 2021. However, I have also concluded that at some stage Myles Hunter would have spoken to the deceased about how the deceased was to undertake the work required of him.

It is not certain from the evidence as to whether Mark Fenton or the deceased was driving the truck at the time it collided with the freight train, but the evidence does reveal that on the afternoon of 23 February 2021 the first respondent’s truck was being driven to a location on Eurabba station where the gypsum in the truck was to be unloaded. That is consistent with the direction given by Myles Hunter to the deceased that Mr Fenton would show the deceased how to unload the gypsum.
It follows that the deceased was at that time “doing something which is part of or is incidental to his service” with the first respondent (Dixon J in Whittingham v Commissioner of Railways (WA) [1931] HCA 49; 46 CLR 22 (Whittingham).
I am therefore satisfied that the deceased died as a result of injury sustained in the course of his employment with the first respondent on 23 February 2021.
There will be a finding that the deceased was a worker who was employed by the first respondent when he died as a result of injury sustained in the course of his employment with the first respondent on 23 February 2021.
There will also be a finding that the deceased was a deemed worker within the meaning of clause 2 of Schedule 1 of the 1998 Act and taken to be employed by the first respondent when he died as a result of injury sustained in the course of his employment with the first respondent on 23 February 2021.

There will be an order that the first respondent is to pay Ms Bott the sum of $834,200 pursuant to section 25 and section 85A of the 1987 Act.

The claim for interest on the lump sum death benefit

Various dates were suggested by counsel for the different parties in this dispute as to the appropriate date that interest on the lump sum death benefit should be calculated from:
(a)    23 February 2021: the date of death of the deceased; or
(b)    19 April 2021: the date of the claim made by the applicant on the first respondent and second respondent; or
(c)    10 August 2021: the date of filing of the ARD; or
(d)    14 September 2021: the first date after all statutory declarations from potential dependents were provided to the first respondent and second respondent.

The power to award interest is provided in section 109 of the 1998 Act, which relevantly provides:
“(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) …
(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)     …”

In Kaur v Thales Underwater Systems Pty Ltd [2011] NSWWCCPD 6 (Kaur), President Keating stated that the earliest date that interest should be awarded is from the date that a claim was duly made. In an arbitral decision of Shanika Cooper v G & W Mudge Concreting Pty Ltd & others (WCC6411/18) Arbitrator Wynyard referred to the decision in Kaur to form the view that the phrase “duly made” refers to a date when an applicant’s claim is fully particularised. I agree with that approach.
I am of the view that the claim made by Ms Bott could only be regarded as being fully particularised by 9 September 2021 when the parents of the deceased had provided statutory declarations stating that they were not making a claim upon the lump sum death benefit available under the 1987 Act. The three siblings of the deceased had provided emails to the applicant’s solicitor by late July 2021 advising that they did not wish to make a claim upon the lump sum death benefit, and that correspondence had been included in the ARD.
The need for the statutory declarations from the parents of the deceased was not a mere academic exercise. Given that the deceased was working full time on the family farm and there had been discussions between the deceased and his parents regarding succession planning for the farm, there was a real possibility that either or both parents were dependent for some support from their son as at the date of his death. Neither respondent could be expected to make a payment of the lump sum death benefit until this issue was clarified.
District Court (Civil) Practice Note 15, dated 22 June 2010, confirms that pre-judgment interest should be in accordance with section 100 of the (NSW) Civil Procedure Act 2005, being 4% above the Reserve Bank of Australia cash rate. However, I am mindful that this is a rate of interest in very much in excess of what has otherwise been available since at least 2016. The official cash rate over the period of this claim has been 0.1%.
During the course of this year there have been several decisions by Members of the Commission in the Workers Compensation Division where a rate of interest at 2% was considered to be reasonable. I consider that is an appropriate rate to be awarded in this dispute. It represents a reasonable compromise between the rate of interest that continues to be set by the Supreme Court and District Court, and the more realistic rates which have applied in the last few years in the commercial life of the nation.
There will therefore be an order that that the first respondent is to pay interest on the lump sum death benefit at the rate of 2% per annum from 9 September 2021 to the date of payment of that benefit pursuant to section 109 of the 1998 Act.

Funeral expenses

There will also be an order that the first respondent is to pay Ms Bott the sum of $12,534.75 for funeral expenses, as provided for by section 26 of the 1987 Act.

[2021] NSWPIC 474

19 November 2021