BWA v CRA - [2025] NSWPIC 220

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading BWA v CRA

Details

AGLC: BWA v CRA [2025] NSWPIC 220
Case: [2025] NSWPIC 220
Decision Date: 21 May 2025

CaseChat Overview and Summary

In the case of BWA v Commissioner of Taxation, the applicant sought to establish his entitlement to workers' compensation by asserting that he was an employee of the first respondent and had suffered an injury while mustering sheep. The Commissioner of Taxation contested the applicant's claims, contending that the applicant was a contractor rather than an employee and that any injury occurred not while mustering sheep, but while performing donuts. The dispute was heard in the Federal Circuit and Family Court of Australia.

The central legal issue in this case was whether the applicant was an employee of the first respondent and, if so, whether he was injured in the course of his employment. The court had to determine the applicant's credibility, the nature of his employment, and the circumstances surrounding the alleged injury. The court also had to assess whether the applicant was entitled to workers' compensation under the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998.

The court found that the applicant's credibility was lacking, and his claims were not substantiated. The court concluded that the applicant was not an employee of the first respondent but rather an independent contractor. The court also determined that the applicant was not injured while mustering sheep, but while doing donuts. The court relied on precedents including Malco Engineering Pty Ltd v Ferreira, Brown v Tavern Operator Pty Ltd, and Watson v Foxman to support its findings. Consequently, the court held that the applicant was not entitled to workers' compensation.

The court ordered that the applicant's claim for workers' compensation be dismissed, and no compensation be paid to the applicant. The court found that the applicant's claims were not credible and that he was not an employee of the first respondent. The court also found that the applicant was not injured in the course of his employment but rather while engaging in an unauthorised activity.

Orders