BWA v CRA

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	BWA v CRA [2025] NSWPIC 220
APPLICANT:	BWA
FIRST RESPONDENT:	CRA
SECOND RESPONDENT:	Workers Compensation Nominal Insurer (iCare)
MEMBER:	Parnel McAdam
DATE OF DECISION:	21 May 2025
DATE OF AMENDMENT:	13 June 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); worker; injury; serious and wilful misconduct; first respondent uninsured; credit of applicant and witness for the first respondent; applicant claimed he was an employee of the first respondent; respondent says he was a contractor; applicant says he was injured mustering sheep; first respondent says he was doing donuts; cross examination of witness; Malco Engineering Pty Ltd v Ferreira, Brown v Tavern Operator Pty Ltd, and Watson v Foxman considered; Held – applicant lacked credibility; applicant was not a worker; applicant was not injured whilst mustering sheep but whilst doing donuts.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the first and second respondents. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

[BWA] commenced proceedings in the Personal Injury Commission (Commission) in respect of an incident that occurred on 18 May 2022. In bringing these proceedings, and indeed in making a claim for compensation in respect of the incident, [BWA] has made a number of assertions about what occurred prior to, on, and following 18 May 2022. Those assertions have been, on many occasions, strongly disputed.
There is some agreement in this case, or at least a lack of dispute. It is clear that on 18 May 2022 [BWA] was hurt when he fell from a quad bike. The fall resulted in a comminuted fracture of the left clavicle, as well as some rib fractures. There are a series of other factual disputes in this case. At the crux of these factual disputes is the credibility of the applicant, and another witness, [BSN], as truthful.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant suffered an injury arising out of or in the course of his employment;
(b)    whether employment was a substantial contributing factor to injury;
(c) whether the applicant was a worker within the meaning of s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);
(d)    whether the applicant’s injury, if found, was solely attributable to serious and wilful misconduct, and
(e)    the extent of the applicant’s incapacity.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The matter has had an extensive procedural history at the Commission. The matter was initially listed for preliminary conference on 13 November 2024. At that stage, the first respondent did not appear and it became apparent had not been served with a copy of the Application. The second respondent and applicant appeared. Directions were made.
The matter proceeded to a further preliminary conference on 11 December 2024. It again became apparent that the first respondent had not been served with a copy of the Application. I made a direction directing the second respondent to serve a copy of the Application to Resolve a Dispute (the Application) and their Reply on the first respondent. I am grateful to the second respondent for their assistance in that regard.
On 16 January 2025, [CRA] appeared, instructing solicitors. Applications were made on that occasion, and a notice to produce was served. The matter was set down for conciliation/arbitration on 13 March 2025.
On 12 March 2025, an urgent preliminary conference was held. It was apparent that the applicant had not complied with the first respondent’s notice to produce. On that occasion, I issued directions for production on three banks for the financial records of the applicant, documents that should have been produced under the notice to produce but had not. The conciliation/arbitration scheduled was cancelled and relisted on 30 April 2025.
The matter final proceeded to hearing on 30 April 2025. The applicant was represented by Mr Carney of counsel, instructed by Stacks Goudkamp. The first respondent was represented by Mr Baran of counsel, instructed by Cardillo Gray Partners. The second respondent was represented by Mr Ainsworth of Hall & Wilcox Lawyers.
During the hearing, [BWA] and [BSN] were the subject of cross examination. Oral submissions were then provided by the parties.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application and attached documents;
(b)    Reply filed by the second respondent;
(c)    Reply filed by the first respondent;
(d)    an Application to Lodge Additional Documents lodged by the applicant on 26 February 2025, being an additional statement, and
(e)    an Application to Lodge Additional Documents lodged by the first respondent on 23 April 2025, being further statements, documents produced under the direction for production process, and a series of text messages exchanged between [BWA] and [BSN].

[BWA]’s statements

[BWA] provides two statements in this matter. The first is attached to the Application and is dated 31 August 2023. This was prepared after the statements obtained by the first respondent (from [CRA] and [BSN]) and provides [BWA]’s version of events, as well as responds to those statements.
[BWA] states that the injury occurred whilst he was on his quad bike moving sheep. Two sheep broke away and he went to go after the sheep, hitting a rock hidden beneath the grass. This caused the bike to flip forwards, with the bike following. This occurred twice before he was flung free and rendered unconscious. [BWA] alleges that after the claim was made, [BSN] came to his parent’s property (where he was living) crying claiming that her mother ([CRA]) would lose her property if a workers compensation claim was lodged.
[BWA] goes on to discuss the statements of [CRA] and [BSN], identifying areas where he disagreed with the history provided. He states that he met [BSN] not on the internet but on the road sobbing. Shortly after this, [CRA], through [BSN], offered [BWA] a job trial, with an agreed hourly rate of $30 per hour. [BWA] then describes another injurious event involving a bore pump.
[BWA] goes on to explain some critical aspects of the case before me, including the spraying. He indicates that [CRA] asked to borrow a spray pump owned by [BWA]’s parents, and would pay [BWA] an additional $10 per hour to spray weeds.
[BWA] states that he “was not provided with a timesheet and instead provided with an invoice book to note my time for the work done”. [BWA] goes on to state that he completed a tax file declaration, but that [CRA] misplaced the paperwork and “had since found my old ABN for lodgement”. [BWA] states that he was employed under a formal job title of “farmhand, roustabout and labourer”. [BWA] continues in his statement to clarify or disagree with aspects of [CRA]’s statement.
[BWA] then turns to [BSN]’s statement. [BWA] explains that he was not paid properly at the time the work was completed as [CRA] could not afford to pay him on a regular basis until receipt of a crouching payment. He states he was not working for anyone else and when he could not spray due to weather, he was used for other duties.
[BWA] disagrees with aspects of [BSN]’s statement including how the accident occurred, and what occurred immediately after. He describes [BSN]’s version of events as “false”.
[BWA] specifically describes a statement of [BSN] as “a false statement” and that it is “simply untrue”. This concerns previous injuries suffered by [BWA] including being shot, stabbed, and broken bones, as well as a spinal injury suffered in an accident.
[BWA] also addresses some photographs provided by [BSN] that show him riding a kid’s motorbike and doing a wheel stand. [BWA] states that [BSN] “demanded that I attend the homestead to check on the children’s minibike, even though she was aware that I was taking several strong pain killers at the time”. There are text messages available concerning this event.
[BWA] also provides a supplementary statement dated 24 February 2025. That statement addresses the ABN attached to “Chillax Air Services”.

Statements of [BTP] and [CDF]

[BWA]’s parents have both provided statements dated 18 September 2023. [BTP] sets out aspects of the history given by [BWA] above, really concerning what he was told by [BWA]. This includes the invoice book, the pay he was provided for general work and spraying work, as well as the use of the spray equipment.
[BTP] also provides a history of words said to her by [BSN] that allege that she was lying to protect her mother. He does not comment on the subsequent accident that occurred that he witnessed.
[CDF], the applicant’s mother, also provides a statement. Her statement addresses similar issues. She states that on 18 May 2022 [BSN] called her and said that “[BWA] had had an accident whilst mustering and sheep”. [CDF] gives a similar history of [BSN] saying the words “Do I tell the truth or do I tell a lie”.
[CDF] also sets out a history of [BSN] and [BWA] deciding, on the way to hospital, that they would say that [BWA] was mustering sheep when he was injured, when in fact he had been doing donuts, to “protect [BWA]”.

Statements of [CRA]

[CRA]’s first statement is dated 23 September 2022. She describes and agreement to do spraying, including that “He was doing the spraying on different days when he was not working for anyone else. He sprayed for about a week and a half over a period of about one month”.
She describes having little to do with [BWA], but rather that [BSN] would tell him what work was completed and then [BWA] would provide an invoice showing how much he was owed for the week.
The agreement was for the weeks they were “crutching” and that was going to finish on 18 May 2022. After that, [BWA] would be called up if there was any work.
[CRA] provides a further statement dated 21 April 2025. That statement clarifies some comments about insurance. [CRA] also states that “I have not and do not employ anyone. I contract people as and when required for specific jobs such as shearing”. Invoices are obtained and provided to an accountant.

Statements of [BSN]

[BSN] also provides two statements. The first is dated 23 September 2022. [BSN] is the daughter of [CRA] and lives on the property with her husband and children. She describes meeting [BWA] whilst jogging. The early interaction of looking at a bore pump is consistent.
[BSN] then describes asking [BWA] to help with crutching time for the sheep, as well as some weed spraying. [BSN] describes the use of [BWA]’s parent’s weed spray because theirs had been stolen. [BSN] states that the work would be on an as needed basis and [BWA] agreed. [BWA] provided his ABN.
In relation to the specific incident on 18 May 2025, [BSN] states that there was a bull in the middle of the road. This was put back into the yard and they were drafting the last few sheep. They were finished drenching and sorting different sheep. [BSN] called [CRA] about the bus. She then describes the accident in the following terms:
“That was it, we were standing near his car talking and we had not put the bikes away at that stage and then he saw Mum coming down the road and he decided to show off for the kids as they were coming down the road and he got back on his quad bike and started doing donuts, he did five or six full turns around and Mum and the kids went past and then the bike gripped on and got traction and being in a hard turn it just flipped over.”
[BSN] raced to [BWA] and describes him as “in obvious pain and holding his shoulder”. He had a small cut to the back of his head and declined an ambulance. They used [BSN]’s bike to roll his bike back. [BWA] asked [BSN] to take him to hospital and stayed with him until about 1.00am. [BSN] states the following:
“He asked me to tell his parents he had hit a rock and to cover up the donut marks he had left and others he had left previously around the paddock.
I fed the sheep in a random pattern over the donut marks, and I can provide a photograph of how I did that so his parents would not see the marks.”
That photograph is attached to the reply.
[BSN] then gives a history, discussed above, of [BWA] being shot, stabbed, and having a number of broken bones.
[BSN] provides a further statement dated 21 April 2025. This statement was prepared after the commencement of proceedings and after [CRA] (and, presumably, [BSN]) obtained legal advice. I do not think this changes the weight that I can give to the evidence but it was an issue raised during cross examination of [BSN].
It is during this statement that [BSN] first sets out the relationship she had with [BWA], which she describes as a sexual relationship “from about the time we started texting each other”. At that time [BSN] was (and remains) married and [BWA] was in a relationship with a different woman. The relationship ended in about late 2022. [BWA] and [BSN] frequently texted each other during this period, both before and after his accident. [BSN] deleted the messages sent to [BWA], as she was “concerned that my husband would find out, and did not want them to become public”.
The text messages that could be recovered are attached to an Application to Lodge Additional Documents and date from 9 June 2022.
[BSN] goes on to address [BWA]’s duties on the day of the incident. She states that on past occasions [BWA] had assisted with mustering sheep, on 18 May 2022 he was not. She also states that he performed work on an as needed basis, and was not employed on an ongoing basis.

Statement of [CUA]

[CUA] is an accountant employed by Robert W Jackson Certified Practicing Accounts in Bathurst. [CUA] was the accountant for [CRA] “for a very long time, since about 2002”. She describes services that include the provision of tax services, BAS statements, financial accounts and advices as to payment of tax. She states: “To the best of my knowledge and belief [CRA] has no employees and has not had any employees”.
She is of the “knowledge and belief” that those who work on the farm are contractors who provide invoices to [CRA] for payment. [CUA] refers to the invoices, which were provided by [CRA] in April 2022. These were processed by [CUA] for [CRA], treating [BWA] as a contractor noting his ABN.
[CUA] goes on to describe that [CRA] has not paid any of the listed contractors superannuation as they provided their own equipment, were infrequent, and were largely seasonal.

Statement of [CYA]

[CYA] provides a statement dated “17/14/2025” which should probably be read as 17 April 2025.
She describes herself as “a personal friend of [BSN]”. She states that she attended [CRA]’s farm on 19 May 2022 (the day after [BWA]’s accident), the purpose of which was because [BSN] “had been through a break up with her husband and was emotionally upset”.
She describes observing “skid marks in a circular shape, which I would describe as donut marks, in front of the shearing shed”. She sets out what [BSN] explained to her about [BWA] doing donuts on his quadbike, consistent with the history given by [BSN].
She states:
“I understood that [BSN] was having an affair with [BWA] at the time of and prior to my attending the farm.... At the time [BSN] seemed concerned about [BWA]’s wellbeing.”

Text messages between [BWA] and [BSN]

Attached to the Application to Lodge Additional Documents lodged by the first respondent are a series of text messages. These date from “6/9/2022” but use an American dating system, and are from 9 June 2022. Unfortunately there are no messages prior to the date of the accident that may shed some light on the nature of the employment/contractor relationship between the applicant and first respondent, and what occurred on 18 May 2022.
I have read through those messages in detail and do not intend to summarise them here. I will refer to relevant parts of that conversation history below.

Bank records

[BWA]’s bank records are also attached to the Application to Lodge Additional Documents. I have considered these in a general way and more specifically where referred to by the parties during submissions.

Report of Dr Porteous

Dr Porteous provides a report dated 3 April 2023. Under history of presenting complaint Dr Porteous records the following:
“[BWA] said that he was working for the owner of some farms when on 18 May 2022 while riding a quad bike he had some sheep break off and as he went to go and get them to bring them back to the main mob, the quadbike flipped forward with him on it and he landed on the left side with the bike landing on him and then it flipped up again and threw him off it.”
Dr Porteous then records that [BWA] was driven to the hospital by [BSN]. He discusses what [BWA] reported compared with what is recorded in the discharge summary. Dr Porteous records that [BWA] was unable to work after the accident and was off work until two weeks ago. He provides a diagnosis consistent with the injuries recorded in the discharge summary. He provides some commentary on earning capacity and assesses permanent impairment.
What is absent from Dr Porteous’ report, and according to the first respondent is of critical importance in determining the claim (in terms of the applicant’s credit as well as questions of causation) is the further quadbike accident [BWA] suffered on 27 November 2022. [BWA] was in hospital for six days after this quadbike accident, where he suffered rib fractures with an associated pneumothorax, lung contusions, required a chest drain and involved significant pain and mental health concerns.
That history is entirely absent from Dr Porteous’ report. There is a relevant causation question that arises out of this further accident about [BWA]’s incapacity that has not been properly considered by Dr Porteous. There were questions put specifically to [BWA] about this during cross examination that I will discuss below.

The clinical records

As indicated in the discussion of the report of Dr Porteous, aspects of the clinical records made available proved crucial in considering this case. I do not intend to summarise those records here.
I do note that the clinical notes are largely consistent with [BWA]’s explanation of how the injury occurred – that is whilst mustering sheep, as opposed to whilst doing donuts. This is also consistent with the cause of injury reported in the certificates of capacity provided by [BWA]. The question of whether I accept that what [BWA] told the hospital is the correct history, on the balance of probabilities, is another question and must be considered in light of the history given by [BSN].

Oral evidence

[BWA] and [BSN] provided oral evidence during the hearing on 30 April 2025. A transcript of that evidence was obtained and I have considered that as part of reaching this determination. Specific aspects of the oral evidence provided will be discussed under findings and reasons below.

FINDINGS AND REASONS

There are disputes in this case about the nature of the employment relationship between the applicant and first respondent (that is, whether the applicant was a worker within the meaning of the legislation), whether [BWA] suffered an injury as alleged, whether, if he suffered an injury, that injury was caused by serious and wilful misconduct, and the extent of any incapacity suffered as a result of any injury.

The majority of these issues are the subject of competing assertions of the applicant and the first respondent. There is no written contract of employment, only verbal discussions. The circumstances of the accident on 18 May 2025 are factually disputed, with differing versions of the cause of that accident. The evidence given by the applicant and [BSN], both in their statements and during cross examination, is in direct conflict.
It is my task to determine, on the balance of probabilities, if the applicant has proven his case on the issues in dispute (except for the respondent’s serious and wilful misconduct defense, for which the respondent bears the onus). In circumstances where there are competing assertions, the credit of all witnesses who have provided evidence becomes essential to the determination of this dispute. There are factual matters that are supported by contemporaneous records, including in the clinical material available to me.

Credit of the applicant

Both respondents squarely put the credit of [BWA] in issue, as far as to suggest that during the cross examination, [BWA] lied under oath. Mr Baran, for the first respondent asked me to make a finding that [BWA] had lied, acknowledging that the Commission is not a court. In Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 (Malco), a worker was found to have given deliberately untrue evidence. Handley JA said this about that circumstance:
“This did not necessarily require the trial Judge to reject the whole of his evidence. Nor on the other hand was the trial Judge entitled to simply accept the whole of his evidence except those parts that the respondents had established was false.
In my opinion the perjury by the worker required the trial Judge to carefully assess the rest of his evidence in order to determine its honesty and reliability. Some of his evidence may have been acceptable because it was confirmed by other independent or objective evidence. However where the worker’s evidence was not independently supported it clearly had to be assessed with great care to determine whether it could properly be accepted as proof of any matter that was in issue in the proceedings.”
Malco was referred to in Brown v Tavern Operator Pty Ltd [2018] NSWSC 1290, where her Honor Ward CJ in Eq said the following:
“At the outset I note that where the veracity of part of a witness’ evidence is not accepted (or is in doubt), a careful assessment of the rest of that evidence is required in order to determine its honesty and reliability (per Handley JA in Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 — that being a case where a finding of perjury had been made on one part of the evidence), though this does not mean that the balance of that witness’ testimony can never be accepted without corroboration (Heydon JA, as his Honour then was, in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705, at 719; [2001] NSWCA 305).”
Both authorities were recently referred to by DP Snell in E B Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables v Howard [2024] NSWPICPD 70.
In submissions the first respondent referred to Watson v Foxman (1995) 49 NSWLR 315, submitting that I would immediately go to the statement of the independent witness, [CYA]. Clearly independent evidence will be relevant to my determination of this dispute, regardless of whether it comes from other witness or in other documentation. The determination will be based on the totality of the evidence available, including the written and oral evidence given by [BWA]. That evidence will need to be considered in light of the aspects of it that are reliable, as well as [BWA]’s reliability as a witness as a whole.
Mr Baran described [BWA]’s oral evidence in the following terms:
“persistent evasion, the varication, the dissembling, the answers that were plainly untrue, the argumentative way in which he approached it.”
Mr Baran submitted that the areas to which [BWA] was taken were going to affect him in an adverse way and that’s why he answered in the way that he did.
In general I agree with Mr Baran’s characterisation of the applicant as a witness. He was evasive at times in particular areas, but at other times he answered in a forthright manner. He was argumentative when asked about particular areas, including his relationship with [BSN] and what occurred in November 2022, in respect of the second quadbike accident. His evidence in respect of what occurred on that occasion, and what he told Dr Porteous, was particularly evasive and unreliable.
In respect of the relationship with [BSN], [BWA] was first asked whether he developed a friendship with her, to which he replied “correct”. He was then asked if that developed in a relationship, to which he replied “no”. I accept that here [BWA] was not necessarily incorrect – it may be that he viewed the interactions he had with [BSN] as not being one of a relationship.
However, the following exchange then occurred:
“Q. And it then developed into a sexual relationship?
A. No.
Q. You say - you say, do you, that you’d never had any kind of intimate relations with [BSN]?
A. I’m saying I don’t agree.
Q. I’m asking you are you saying now having taken the oath that you have never had any intimate relations with [BSN], yes or no?
A. I don’t agree.
MEMBER:
Q. Is that a no, [BWA]?
A. I don’t agree.
Q. It’s a yes or no question. Is it yes, you did or no, you didn’t?
A. Well, with two consenting adults may have had a couple of flings.
Q. Okay. So the answer’s yes?
A. No relationship, no.”
Mr Baran then asked whether they had had “sexual intercourse on a couple of occasions”. [BWA] was reluctant to answer this question, but did so at my insistence. Eventually he answered yes. The line of questioning continued to establish when, exactly, [BWA] and [BSN] had sexual relations. The above exchange highlights the evasiveness with which [BWA] answered questions on a number of occasions. It is clear that [BWA] and [BSN] had a sexual relationship. This is an “intimate relationship”. [BWA] initially denied this and then later agreed.
[BSN] gives evidence in her statement of a sexual relationship that commenced about the time they started texting each other, and ended in late 2022. [BWA] denied that this relationship continued after the accident in May 2022. However, there are text messages between [BWA] and [BSN] that contradict this. Whilst he describes them as “of a flirt”, on 13 June 2022, [BSN] says “Sure thing. Let me know if your up for a quickie” to which [BWA] responds “Always lol I might see how my arm goes driving down the driveway and might try n duck to the pub for tobacco and a beer”. The exchange continues with [BSN] suggesting that she come for a visit, and then states “Hahaha yeah would have been caught well and truly.”
In circumstances where [BWA]’s evidence was evasive at best, and [BSN] gave evidence to the contrary, which I found reliable (which I will discuss below), and that evidence is supported in a meaningful if not direct way, I am satisfied that the applicant and [BSN] were in a sexual relationship both before and after the accident on 18 May 2022. No specific findings in respect of the dispute under the legislation follow from that, but go to [BWA]’s reliability as a witness.
The next issue related to the circumstances in which [BWA] met [BSN]. I don’t place great weight on this interaction as going to [BWA]’s reliability as he probably perceived events in a particular way, that he recounted.
The other major area where [BWA]’s credibility is really undermined is in respect of what occurred on 27 November 2022. [BWA] was involved in another quadbike accident on that occasion, was in hospital for six days, and had fairly extensive injuries and treatment, including to the same areas as previously hurt in the accident on 18 May 2022.
The report of Dr Porteous contains no reference to that incident. [BWA] suggested that he would have told Dr Porteous about it as he told him everything. He gave specific evidence, during the cross examination, that he wasn’t injured in that accident. After the clinical records of that incident, from Bathurst Base Hospital were drawn to his attention, [BWA] said he wasn’t injured “Not from the quadbike accident, no”. Records were drawn to his attention including rib fractures and a pneumothorax that [BWA] said were “existing injuries”.
Questioning continued for some time on this point. The following exchange took place:
“Q. Okay. Do you still maintain your evidence to be truthful, did you not sustain an injury or injuries in this second accident?
A. Well, I don’t believe it was due to the quadbike, no. It was due to me jumping from the quadbike, yes.
Q. Okay. Just want to be very, very fair. You’ve told the learned Member that you did not sustain any injuries in the second accident, remember giving that evidence?
A. I said that I did not sustain any injuries from the quadbike, no.
Q. Okay. And I’m suggesting to you - no, no, from the quadbike accident, [BWA]?
A. No, I said that I did not sustain any injuries from the quadbike.
Q. I see. Right. Well, let’s just so we’re a hundred percent clear. You didn’t sustain any injuries from the quadbike but do you accept that in the quadbike accident you did suffer injuries?
A. Suffered injuries from jumping from the bike, correct.”
These responses, in context of [BWA] previously saying he wasn’t injured, “not from the quadbike accident, no”, are somewhat incredulous. Here [BWA] seems to be suggesting that he wasn’t injured by the quadbike but from the fall, in the same way that someone might suggest it’s not hitting the ground that causes an injury, but the sudden stop. It is abundantly clear from the clinical records that [BWA] was significantly injured on 27 November 2022.
I also find that [BWA] did not provide any history of this to Dr Porteous. It would defy logic to believe that an assessor as experienced as Dr Porteous would not record such an important history, particularly when he questioned the extent of the injuries [BWA] reported to him, as I have discussed above.
It would appear that [BWA] has a tendency to over or under-exaggerate matters to suit the circumstances at the time. In the report of Dr Porteous, the doctor records the injuries suffered a comminuted fracture of the left clavicle, as well as “fractures of the right first rib and the left ribs one to two”. Dr Porteous then goes on to record:
“[BWA] said he was told that he had fractured the right ribs one to six and the left one to seven and also fractured the other (right) clavicle. I could not find any reports anywhere in all of the discharge letters and reports on file that confirm that.”
[BWA]’s understanding of the injuries he suffered in the incident is repeated in the claim form, where he states:
“The result was I was unconscious + then rushed to hospital with 27 breaks/fractures. My left clavicle was in 7 pieces + required surgery + an implant, ribs 1-6 on left broken, ribs 1-7 on right side broke, hip, 6 vertebrae, head laceration + haematoma, right clavicle in 3 pieces”
Dr Porteous specifically describe being unable to “find any reports anywhere in all of the discharge letters and reports on file that confirm that”.
Mr Baran also put a series of questions to [BWA] about the history of being shot and stabbed. [BWA] denies being shot and denies telling anyone that he was shot. I think that is probably the truth.
[BSN], in her statement, suggested that she was “aware [BWA] has previously suffered injuries. He has been shot on the leg, stabbed in the face, chest and stomach….” [BWA], in his statement, denied this stating:
“Regarding paragraph 54. This is a false statement. It has no relevance to my accident and is simply untrue. I have not suffered any prior injury or an injury of a similar nature other than my work injury the subject of this claim. I did have a broken bone in my ankle at 22 years of age, which healed without any issues.”
Under cross examination, [BWA] indicated that he was first stabbed at the age of about 12 or 13, and had been stabbed on “quite a few other times”. Again, the evidence [BWA] gave during cross examination was inconsistent with his statement.
Having considered the evidence [BWA] gave during cross examination, I am not satisfied that he is a reliable witness. This was more than just a case of a poor recollection of events, or a reasonable belief that things [BWA] told others that may not have been recorded (in the case of Dr Porteous). [BWA]’s answers were deliberate, evasive, and inconsistent in a number of areas. In those circumstances, I must rely on other evidence to determine, on the balance of probabilities, what occurred.

The evidence of [BSN]

[BSN] was also the subject of cross examination, this time by the applicant’s counsel. This largely concerned the nature of [BSN]’s relationship with [BWA].
Questions were asked about [BWA]’s relationship with his girlfriend, who lived 490km away. [BSN] gave evidence that she would come to visit often. It is clear that that could not have been the case.
Mr Carney put it too [BSN] that she did not have anything more than a casual relationship with [BWA]:
“Q. Well, you didn’t tell anybody that you were in a committed relationship with him in your statement to the investigator?
A. Yes, because I was married at the time and at the time of the initial investigation I did not want this matter to come to light with my husband. It has since come to light with excessive marriage counselling, that is a different issue…”
[BSN] went on to explain as to why she did not initially tell the iCare investigator about her relationship with [BWA]: “My husband has a history of abuse so it was not something that I wished to tell him for fear of my safety.” Questions were asked about [BSN]’s relationship with her husband and steps that could have been taken but weren’t, including the taking out of an AVO, to which [BSN] replied:
“They did offer all of the resources but I never followed through. This was a - it’s a 15-year relationship, it’s - if you know anything about abuse the cycle often continues and that’s - it can take numerous attempts before the person can actually break free of the cycle. I never broke through with the cycle and instead we have united together to work on our problems and it has been a very tough and hard road for us.”
She also explained why the evidence of the relationship only came to light during the proceedings before the Commission:
“The relationship came to light with the second statement because I sent Mr Grey my old phone and once he examined the old phone he realised very quickly pertaining to a lot of the text messages and their nature what sort of relationship we had and he asked me the question and I admitted to him then.”
Questions were then directed to the specific accident on 18 May 2022. [BSN] indicated regret at not immediately calling an ambulance. She gave evidence that [BWA] told the hospital what happened, but she was there and listening. [BSN] told [BWA]’s mother that he was hurt mustering sheep. Specific questions were asked about this to which [BSN] gave the following evidence:
“Through a lot of coaxing with [BWA] I did say this because [BWA] claimed that he was embarrassed about the accident and did not wish his parents to know. Believing that [BWA] was my boyfriend and good friend I wished to spare him the embarrassment of admitting that he was doing something so childish that led to his injuries.”
[BSN] denied telling the hospital anything and indicated that [BWA] gave the history to the hospital.
My observation of [BSN] during evidence was that she was forthright and open. She was quick to answer questions and not evasive. Her explanation as to her omission about the relationship she had with [BWA] is, in the circumstances, reasonable.
There may have been some difference of understanding as to the strength of the relationship between [BWA] and [BSN]. Perhaps [BSN] saw it as more than the mere fling described by [BWA]. Perhaps he did not consider himself her “boyfriend” as the evidence she gave. It is clear from the text messages that they were close. They exchanged a large volume of messages for a long period after [BWA] was injured in May 2022. These messages were often of a personal nature and touched on [BSN]’s personal life on a number of occasions. The messages end towards the end of November 2022 which is roughly consistent with when [BSN] suggests the relationship ended.
I do not accept, as was put by Mr Carney during the cross examination of [BSN], that she “made up this story about a relationship to justify that lie” (concerning the injury occurring whilst [BWA] was doing donuts). The relationship existed. It was of a sexual nature. It was also of a friendly nature for an extended period, if not of a boyfriend/girlfriend type couple.
I accept [BSN] as a witness of truth.

Worker

[BWA]’s claim in this case is that he is a worker. This is to be distinguished from any assertion that he was a “deemed worker” in accordance with the legislation, which was not the case brought by [BWA] and not one that I must determine.
Worker is relevantly defined in s 4 of the 1998 Act:
“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 whether the contract is oral or in writing).”
A series of exemptions follow that are not relevant here.
The applicant’s case is that he worked under a contract of service. The respondent’s case is that [BWA] was engaged under a contract for services. The agreement in this case was an oral one – there is no written contract. It is largely uncontroversial how [BWA] first interacted with [BSN] (who is not an employee of the first respondent, as she takes no wage, but appears to assist [CRA] in the running of the farm). It occurred whilst [BWA] was driving down the road, and encountered [BSN]. The different histories concerning where [BSN] was sitting at the time, and her state of mind, have no bearing on the ultimate issues for determination.
There is some inconsistency as to on what basis [BWA] was first engaged by the first respondent. [CRA], in her statement dated 23 September 2022, suggests that it was to work on a bore pump, which was invoiced on 25 March 2022. [BWA] suggests that it was a job trial, and he was doing fencing when he was asked to come and look at the bore pump. That is, that [BWA] was already working under a trial when he worked on the bore pump.
[CRA]’s version of events is largely consistent with [BSN]. She states that [BWA] helped lift some wire into a ute and to fix a fence, but did not charge anything because “he was just being a good neighbour”. She states:
“We spoke through text messages for a couple of weeks and then I asked if he could come and look at a bore pump for mum because he had said he was experienced in electrical work and refrigeration. A couple of weeks prior to 25 March 2022 he came and had a look at the pump and while he was doing that Mum asked him about spraying for the weeds and fixing some fences which he did and on 25 March 2022 he gave her an invoice for the work with a total of $1140 for all the work. There is no ABN number on the invoice and no charge for GST.”
That invoice is not in evidence before me. There is a “general ledger detail” which is an annexure to a statement provided by [CRA]’s accountant [CUA]. That ledger includes payments on 26 March 2022 to [BWA], over three payments, which total $1,140. There are other payments made to [BWA], other persons, and what appears to be a business, with a “total contract payments”. This is not conclusive evidence that the parties were in a relationship of a contract for services as this is simply how [CRA]’s accountant characterised payments. It is a factor that I can consider.
[CUA] provides a statement that [CRA] has no employees and has never had any employees, and that all who work on the farm are contractors.

[CUA] also attaches invoices prepared by [BWA]. There are three such invoices, dated 7 April 2022, 15 April 2022 and 28 April 2022.
The latter two invoices include an ABN which is consistent with that of Chillax Air Service, an ABN owned by [BWA]. That ABN was cancelled on 15 June 2022, after the date of the accident, and after the invoices issued by [BWA] that include that ABN.
The invoice of 7 April 2022 includes work performed on 21-25 March 2022. That is, prior to the invoicing of work on the bore pump. It’s not clear when that work was performed. [BWA] asserts it was after he commenced his “work trial”. [CRA] and [BSN] assert that the work on the bore pump was completed first, and then [BWA] started working on the fences and the like, as set out in the invoice dated 7 April 2022.
Given the overwhelming lack of credit I have found for [BWA], I prefer the timeline given by [BSN]. In the absence of the invoice provided for the bore pump, and noting the duties in the invoice of 7 April 2022 do not reference that work (and include significant working hours), on the balance of probabilities it occurred prior to the spraying work which commenced on 21 March 2022. The repairing of a pump is the kind of work that a contractor would undertake, and given [BWA]’s trade background in refrigeration, it may have been something he thought he could resolve in a reasonable manner.
I am satisfied, on the balance of probabilities, that [BWA]’s first engagement with the first respondent was that of a contractor, performing a contract for services (a repair job). This occurred “a couple of weeks prior to 25 March 2022” (which is when [BWA] provided the invoice, which was then paid the next day).
That does not mean that the relationship could have changed following and from 21 March 2022, when [BWA] commenced spraying the blackberries, and performing some fencing duties.
There is no written contract of employment in this matter. Assertions have been made about the nature of the relationship between the parties as to whether the agreement between them, which was purely an oral agreement, was an employee/employer relationship or a contractor relationship. Although there is no written contract there is some documentary evidence to assist. The tax invoices, discussed above, are relevant. These invoices show hours worked, task descriptions, and provide a total price that can be calculated back to a price per hour worked.
There is a difference in amount, on a per hour rate, of $10 per hour depending on the task performed. General duties, including fencing, and cleaning, attracted a rate of $30 per hour. Weed spraying attracted a rate of $40 per hour. [BWA] explains the difference as relating to the use of his parent’s sprayer, which had been loaned to [CRA]. If this were an employment relationship, this would be an unusual business arrangement. The payments were made to [BWA] (not his parents, who in fact owned the sprayer). Generally, in an employment relationship, an additional allowance on an hourly rate would be for things like overtime or penalty rates. It would not generally attach to the use of a specific tool for a task.
That is more akin to a contractor type relationship, whereby a specific tool is required for a job that is expensive. An additional fee would attach to the use of that tool.
I would also note that the applicant’s description of the invoices as timesheets, which were repeated by [BWA]’s parents, is circumspect. It is not clear why an hourly rate (or, more reflective of the actual document, a daily rate) would be provided on a timesheet. In general a timesheet would provide start and finish times, reflective of the number of hours worked. If there were additional allowances for those hours (such as overtime or penalties), this would be calculated by the employer. This further gives weight to the conclusion that [BWA] was not an employee of [CRA], but rather a contractor, and thus not a worker within the meaning of s 4 of the 1998 Act.
The determination of whether an injured person is a worker relies on consideration of the indicia of employment (Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1 and Hollis v Vabu Pty Ltd [2001] HCA 44). It is not always a straightforward task. It is more complex than running items down a checklist (per Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1):
“In Stevens v Brodribb Sawmilling Co Pty Ltd and Hollis v Vabu Pty Ltd, it was said that the characterisation of a relationship as being either one of employment or one of principal and independent contractor is to be determined by reference to ‘the totality of the relationship between the parties’. It was not suggested that this assessment should proceed as if the court is running down items on a checklist in order to determine a balance of ticks and crosses. It has never been suggested that the factors identified to be relevant are of equal weight in the characterisation of the relationship. Some understanding as to the relative significance of the various factors is desirable, both to minimise the extent to which application of the test may produce an impressionistic and subjective outcome on the one hand, and to avoid the injustice of a mechanistic checklist approach on the other.” (per Keifel CJ, Keane and Edeleman JJ at [34])
In that case a comprehensive written contract was paramount. A multifactorial balancing exercise is not required where such a contract exists (see [55]). In the present case, no such contract exists. There is a verbal agreement only. There are disputing versions of that verbal agreement. The only documentation available to me for consideration are the invoices and the ledger which I have discussed above.
[BWA] asserts that he was first employed on a job trial. [CRA] asserts “There was no discussion with him of how he was employed”. There is a dispute about whether [BWA] worked for anyone else. The invoices show the following (using “work” here not to infer that [BWA] was a worker within the meaning of the legislation):
(a)    [BWA] worked from 21 March 2022 to 25 March 2022, for a period of 51 hours (which includes an undated period of six hours clearing chimney and installing a filter);
(b)    [BWA] did not work until 8 April 2022, working 10 hours that day;
(c)    [BWA] worked then from 11-15 April 2022 for a total of 48 hours;
(d)    [BWA] worked from 18-22 April 2022 for a total of 44 hours, and
(e)    [BWA] worked from 22-28 April 2022 for a total of 50 hours.
It is not clear what occurred between 25 March to 8 April 2022. There may be a missing invoice. It is more probable that [BWA] did not work with the first respondent during that period.
There is no dispute that [BWA] provided his own tools. He provided the sprayer (although this was owned by his parents) and the quadbike which caused the accident. The poison was provided by the first respondent and as she submits, much in the same way that a painter would provide paintbrushes and other tools but paint would be purchased by the house owner. [BWA] used his own plyers to mend fences. No uninform was provided by the first respondent (but given the nature of the work, even if he were a worker, this would be unusual).
No superannuation was paid to [BWA]. He provided an ABN. He asserts that he provided his tax file number to the first respondent, but I have no independent evidence of that. In circumstances where I have found [BWA] lacks in credit, I am unable to find that he did provide it without evidence. The invoices show that [BWA] did not work consistent hours (although he worked long hours, between 8-10 on each day). As I have said above, I cannot consider them to be timesheets as they do not show start and finish times, but rather a total of hours worked each day. That suggests that the first respondent did not dictate the hours of work but rather needed specific jobs finished.
This conclusion is largely consistent with the oral evidence given by [BWA] concerning the need for spraying. There was some discussion about this needing to be completed to satisfy the council of certain requirements. Working on an hourly basis as a contractor rather than on a set seven or eight-hour day would be more likely to achieve this in a short timeframe. [BWA], aside from a few occasions, consistently worked 10-hour days on spraying blackberries. He charged $40 per hour for this service (as opposed to the $30 he charged for fencing and other duties) and claimed no overtime. Again, this lends weight to a conclusion that the arrangement was of a contract for services.
The question of control is a difficult one. [BWA] had no regular hours except when he was crutching, which were minimal part of the work he performed for the first respondent. [BSN] worked with [BWA], including on the date of the accident, and probably offered some degree of control. On the other hand, the spraying work, which forms the majority of the work, appears to have been on the basis that [BWA] would complete the tasks on his own and invoiced for it as tasks were completed.
Having considered all the material, in the context of the lack of credibility of [BWA], the corroborating evidence that suggests a contractor-type relationship, and the evidence of [CUA], I am not satisfied, on the balance of probabilities, that [BWA] was a worker. On that basis, he has no entitlement to compensation arising at all.

Injury

In the event that I am incorrect about the issue of worker, I propose to deal with the injury issue. Extensive submissions were provided on the point and the cross examination of both [BWA] and [BSN] addressed this issue. The following analysis proceeds on the basis that I would have been satisfied that [BWA] was a worker.
The question of injury in this case concerns two competing versions of events that occurred on 18 May 2022. In summary, [BWA] asserts that he was injured whilst rounding up some sheep on his quadbike. He hit a rock hidden in some long grass, was thrown forward off the bike, and had the bike land on top of him. [BSN]’s version of events is that they had got all the sheep back into the shed. [BWA] decided to show off for the kids (being [BSN]’s children) and started doing donuts, when the bike got gripped in traction and flipped over. He was thrown from the bike and landed about a metre away.
The “herding sheep” version of events has been consistently told by [BWA]. I have been unable to locate the initial certificate of capacity given by his general practitioner, but on a whole the injury connection to employment is described as “Lost control of quad bike while herding sheep at work” (other than the singular “Occurred at work” that appears in a September certificate).
The clinical records from Bathurst Hospital also consistently report that [BWA] was injury in a quadbike accident whilst herding sheep. There are variations as to how this is recorded, but the history given in these clinical notes is consistent. I accept that that is the history [BWA] gave to the hospital and the various treaters he saw correctly recorded that history. The first respondent submits that what was missing from the notes is reference to striking a rock or knee high grass. I don’t give much weight to that absence as it describes the cause of the quadbike flipping, and is not concerned with the consequence of that event (the fall, the striking of the head, and the injuries suffered), which are matters of much greater concern to the practitioners treating [BWA].
I have been circumspect of [BWA]’s statement, which was prepared after the s 78 notice was issued and after the statements of [CRA] and [BSN] were provided (and on many occasions, responds to aspects of those statements). The statement must be considered in that light, given that at that time [BWA] was in receipt of legal advice and knew the general scope of the liability dispute that would eventually come to the Commission to be determined. These issues similarly must be considered in the context of the findings I have made about the credit of [BWA] and [BSN] following cross-examination of both witnesses. The clinical records, on the other hand, are undeniable.
However, that does not answer the question of whether the accident occurred in the circumstances as described by [BWA]. Had there been no witnesses to the accident, it would not be possible for me to find otherwise. However, [BSN] has consistently given evidence, since 23 September 2022, that [BWA] was performing donuts when he was injured.
I have commented on the credibility of both witnesses above. I have not found [BWA] to be a credible witness. I have found [BSN] to be reliable, other than her initial lack of disclosure about her relationship with [BWA] (which I found was adequately explained). The motivation for both witnesses to proffer these alternative stories is apparent: [BWA] is unlikely to be entitled to compensation if his injury was suffered in the circumstances of him performing donuts (more on that below). On the other hand, if the injury occurred as suggested by [BWA], whilst herding sheep, he would undoubtedly succeed. As the first respondent is uninsured, the impacts of such a decision have a direct impact on [CRA], and an indirect impact on [BSN] (who lives on the property and is obviously close to her mother).
[BSN] offers an explanation of both how the story of herding the sheep came about (whilst she was driving [BWA] to hospital, after he declined to attend in an ambulance) and the reasons for why (to protect [BWA] from embarrassment at the hands of his parents). At the time [BSN] and [BWA] were engaged in a sexual relationship and were friendly. The trip to the hospital gave both the opportunity to come up with this story and the motive to do so.
There is also the photographic evidence that purports to depict donut tracks and piles of grass covering those tracks. It was explained by [BSN] that this was at the request of [BWA], so that the sheep would graze there to cover the tracks. In cross examination, [BWA] denied that the photographs depicted donuts but rather “simple crossing marks”.
I am no expert in tyre tracks and determining what would be a donut track or what would be a crossing mark. On the other hand, neither is [BWA]. The photographs provided are not particularly clear. They do show tracks in a circular motion, and tufts of grass, with a ute containing further collections of grass on the tray. This photo is consistent with [BSN]’s version of events, that she was specifically asked to cover the tracks to disguise them. I am satisfied on the balance of probabilities that this occurred.
[BWA]’s parents gave statements about what they were told by [BWA] and [BSN]. The evidence given by [CDF] is that she was told by [BSN] that they came up with the mustering sheep story on the way to the hospital, when he had in fact been doing donuts, “to protect [BWA]”. [CDF] goes on to say that [BWA] “has always been truthful in my experience”. She of course believes that her son is an honest person. [BSN] has explained why the story was provided to the hospital of how the injury occurred (as opposed to how she now states it occurred). This is consistent with the history recorded in [CDF]’s statement.
This is also consistent with the statement of [CYA] who observed the donut marks and explained what [BSN] told her, the day after the accident occurred.
The first respondent made submissions about the location of the sheep, where they were being placed for drenching and that it was a job for the dog (or dogs) to round up the sheep, and accordingly the accident could not have occurred in the location as described by [BWA]. I do not have sufficient information available to accept these submissions on a number of bases.
Having considered all of the evidence I am satisfied, on the balance of probabilities, that the accident that occurred on 18 May 2022 occurred when [BWA] was doing donuts on his quadbike.
The question then becomes whether that was an injury “arising out of or in the course of employment”. [BWA] was clearly not required to do donuts as part of his job. He was doubtless not authorised or encouraged to do so. Such activities, in a vehicle as dangerous as a quadbike, is grossly negligent. [BWA] must have been aware of the risk and still undertook the activity regardless. On that basis, the actions took him outside of the course of employment and accordingly are not within the definition of injury in s 4 of the 1987 Act.

Other issues

Having not been satisfied that [BWA] was a worker, or that he was injured as required by the legislation, I do not intend to deal with the remaining issues. Serious and wilful misconduct was raised as a defense but not expanded on in great detail in submissions, for obvious reasons given the case on injury. It follows from a largely similar factual basis.
The intervening accident that occurred on 27 November 2022 has not been commented on by Dr Porteous. I would have difficulty accepting his opinion on the physical aspects of [BWA]’s case (putting aside the history he took from [BWA] of how the injury occurred) on that basis. He hasn’t been provided with a proper history. I have no doubt that second accident was significant (despite [BWA]’s attempts to downplay it) and would have to be considered to have contributed to his incapacity.
Submissions were made about [BWA]’s capacity with reference to bank records, post injury employment, and [BWA] re-commencing work as an independent contractor providing some air conditioning services. The complexity of these issues does not necessitate determination given my findings above.

SUMMARY

[BWA] was not a worker within the meaning of the legislation and did not suffer an injury arising out of or in the course of employment. Accordingly, there will be an award for the first respondent and second respondent.

DE-IDENTIFICATION

Following the hearing of this matter and whilst the decision was reserved, the second respondent wrote to the Commission seeking that in light of the oral evidence given, for the safety of witnesses and parties, that no party or witness be identified in the Certificate of Determination or Statement of Reasons.
The applicant and other witnesses are from a small community. A history of domestic violence was raised during cross examination.
I agree that in the circumstances that is appropriate. I direct that pursuant to r 132 of the Personal Injury Commission Rules 2021, before the matter is published, all parties (excluding the Nominal Insurer), and witnesses are to be de-identified.

[2025] NSWPIC 220

21 May 2025