Carbone v Workers Compensation Nominal Insurer & Ors

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Carbone v Workers Compensation Nominal Insurer & Ors [2024] NSWPIC 42
APPLICANT:	Giovanni Carbone
FIRST RESPONDENT:	Workers Compensation Nominal Insurer (icare)
SECOND RESPONDENT:	Denis Gabrielli t/as Mr Colour Painting and Decorating
THIRD RESPONDENT:	Jetcharm Constructions Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	2 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; applicant fell 3 - 4 metres off a ladder whilst painting; whether applicant a worker; whether credit impugned by false account of injury to hospital; whether injury to back established; Held – contract oral; multifactorial indicia relevant; contemporaneous evidence demonstrated uninsured employer misled the Commission; injury to back established on facts; UPVC Window Solutions Pty Ltd v Workers Compensation Nominal Insurer (icare) and Askew v Donald Noel Spence t/as Don’s Guttering and Roofing Service considered and applied; Fox v Percy applied; award applicant.
DETERMINATIONS MADE:	The Commission finds: 1. The applicant was employed by the first respondent at the time of his injury. 2. The first respondent was uninsured at the time. 3. The third respondent was a principal liable to pay compensation pursuant to s 20 of the Workers Compensation Act 1987. 4. The applicant injured his back in the subject injury of 29 April 2020. The Commission orders: 5. I remit this matter to the President for referral to a Medical Assessor for a whole person assessment on the following bases: (a) Date of injury: 29 April 2020. (b) Matters for assessment: (i) left upper extremity (wrist). (ii) lumbar spine. (iii) TEMSKI/scarring. (c) Evidence: (i) Application to Resolve a Dispute and attached documents. (ii) Application to Admit Late Documents dated 12 October 2023. (iii) First respondent Reply and attached documents. (iv) Second respondent Reply and attached documents. (v) Third respondent Reply and attached documents.

STATEMENT OF REASONS

BACKGROUND

Giovanni Carbone, the applicant, seeks an order for lump sum compensation for injury to his lumbar spine, left upper extremity and TEMSKI/scarring alleged to have occurred on 29 April 2023. He alleges that he was employed by Denis Gabrielli t/as Mr Colour Painting and Decorating, the second respondent, who at the time did not hold a workers compensation policy. Workers Compensation Nominal Insurer (iCare) accordingly has been joined as the first respondent and Jetcharm Constructions Pty Ltd, the third respondent, is alleged to have been the head contractor at the site where Mr Carbone suffered his alleged injuries.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether Mr Carbone was a worker;
(b) if not, whether the third respondent is liable pursuant to s 20 of the Workers Compensation Act 1987 (1987 Act), and
(c) whilst the injury to the applicant’s wrist and scarring is admitted, the claim for the back is denied.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was heard in the Personal Injury Commission (Commission) on 18 October 2023, and by video link on 7 November 2023. The applicant was represented by Mr Bill Nicholson of counsel instructed by Mr Trent Lunardello of Messrs Marshall & Gibson lawyers. The respondent was represented by Mr Denis Epstein instructed by Mr Howard Simons of Remington & Co solicitors. The first and third respondents were represented by Mr Paul Stockley of counsel instructed by Mr Rob Mitas of Messrs Lee Legal. Mr Tony Cavallaro acted as interpreter and Ms Julie Phan appeared for the insurer.
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.

EVIDENCE

Documentary evidence

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

Applicant
(a)    the applicant relied on an Amended Application to Resolve a Dsipute dated 18 August 2023 together with attached documents, and
(b)    Application to Admit Late Documents dated 12 October 2023.
First respondent
(a)    Reply and attached documents.
Second respondent
(a)    Reply and attached documents.
Third respondent
(a)    Reply and attached documents.

Oral evidence

No oral evidence was given.

FINDINGS AND REASONS

Mr Carbone

Statement 24 July 2020

Mr Carbone gave three statements as to relevant events. The first was dated 24 July 2020 and was taken by the investigator Ms Colleen Pont with the assistance of an interpreter.[1]
[1] Reply first respondent page 16.
In the statement Mr Carbone said that he was 46 years old (born 1973). Mr Carbone was born in Italy and came to Australia in September 2019, having been on a short working holiday some years before. He has no English.
He advised he had physiotherapy for a bad back when he was visiting on the earlier occasion. At [26] he said he worked for a company, Portos Painting, for six months when he first arrived, doing painting and general labouring. He said that it was casual work and he was required to give an invoice for the work that he provided. He said he did not enjoy working there and that there was very little work.
Mr Carbone advised that he has an Australian Business Number (ABN). Mr Carbone said that through his brother he got some work from “Frederico” for whom he did some casual work for about three days, and was paid cash. Mr Carbone did not give an invoice or his ABN at that time because he did not have one.
Whilst he was working for Frederico, He met Denis Gabrielli, who was painting some windows. At [31] Mr Carbone said that he knew Mr Gabrielli had his own company and that “because I was looking for work I stayed in contact with him”.
He said that Denis called him one day and asked if he could work for him. He said at [33]:
“I did not ask any questions about pay conditions. I just trusted that he would pay me. I thought it was normal here that a worker would always get paid.
34. We were not friends but by then I was acquainted enough that I accepted the job on trust. When I first met Denis Gabrielli, I did not have much experience but then I worked for Portos Painting for six months so I then did have some experience. But because I only had a little experience, I thought Denis was hiring me on a trial to see how I worked.
35. He did not speak to me about long term employment, he said something like I come and work for him and see how it goes.”
Mr Carbone continued that he was not asked if he had an ABN at the time and there was no conversation about taxation, superannuation or holidays.
On 29 April 2020 Mr Carbone was at 5 Cabramatta Road, Mosman working on the third day of his attendance “at the request of Denis Gabrielli”.
Mr Carbone said that on the first day Mr Gabrielli was there. Mr Carbone was not asked to sign any paperwork. He was shown a wall by Mr Gabrielli and was asked to repaint the wall.
Mr Carbone started work on 29 April 2020 at 7.30am. He said there were two other people there “I think they worked for Denis Gabrielli also”. He said the accident happened just before 2.50pm:
“I was up on a ladder so I could reach the windows to paint them. As far as I know, Denis Gabrielli owned the ladder. As far as I know, he provided all the painting equipment we used on the site”.
At [47] Mr Carbone said that he was told by Mr Gabrielli to take the ladder and use it to do the work for him. He gave the name and phone numbers of the other two people working there and said that he thought that they were both working for Mr Gabrielli. He described the ladder which was an aluminium A frame about two metres in height.
Mr Carbone said that there was some scaffolding around the house but none in the area where he needed to get up onto the roof of the garage, so he had to use the ladder.
He said that he was on the second rung from the top when he fell. He said maybe the foot of the ladder was caught in a crack in the concrete which made him fall off. He said he was wearing tennis shoes. He said that he knew that “we are supposed to wear heavy boots”. He said that Mr Gabrielli had not told him that he had to wear any particular type of shoes.
Mr Carbone said that no one saw him fall but that Mr Gabrielli and the other two workers came over to help him.
Mr Carbone said that has asked how he was and he knew that something was very wrong because of the very great pain he said “in my arm, shoulder and back”. He said Juan went to get some cloth materials to make a sling for his left arm.
Mr Carbone said at [62]:
“I told Denis I had to get to a hospital. He said to wait because he had to speak to his wife.
63. He told me not to say that I had an accident at work. I said to him that there would not be any problem, that I will just send him an invoice for the work. He told me to go home and get changed, he said ‘don’t ruin me’.”
Mr Carbone was driven home by Mr Gabrielli because “[Mr Gabrielli] wanted me to clean myself up” and then they proceeded to Royal North Shore Hospital, where Mr Gabrielli acted as an interpreter for him. He was in the hospital for two nights and he phoned Mr Gabrielli a few times. Mr Gabrielli said “Don’t worry everything will be fine” and to call him “if he needed anything.”
Mr Carbone saw him next at the IGA supermarket at Mosman because he wanted to buy a ladder from Mr Gabrielli. Sometime after that he had a discussion with Mr Gabrielli about insurance because Mr Carbone realised that he was not going to be working for a long time. Mr Carbone said:
“69. … He told me that he would have to talk about it with his wife because she looked after that then he told me I was not insured by his insurance because I was not an employee. He said he had not paid tax for me so I was not employed by him.”
At [74] he said that he had not worked since the accident that the was having treatment for his left wrist. He said he understood that he was employed by Mr Gabrielli.
Mr Carbone said that Mr Gabrielli
·        told him where to work;
·        did not require him to wear any type of uniform, and
·        did not give any information about breaks.
Mr Carbone said when he worked for Mr Gabrielli before he was paid cash at $24 per hour. He had worked at the Mosman address previously and was paid $24 per hour for a two day period in cash.
He said:
“Gabrielli did not tell me I had to supply my own tools”.
He said at [83]:
“I have an ABN and a business card for handyman work but I have not given them to anyone. I have put my name on Gumtree and a few people contacted me but I did not get any work out of it.”

Statement 22 June 2023

Mr Carbone’s second statement was dated 22 June 2023.[2]
[2] ARD page 2.
Mr Carbone confirmed that he met Mr Gabrielli on 16 September 2019 when he was working for Frederico at an address in Manly.
On 18 April 2020 Mr Gabrielli contacted him saying could he complete some painting work which he did. He said:
“14. The first time I worked for Denis was in January 2020 at…Freshwater, NSW. I worked for around 8 hours across a three day period. I also worked one day at a residential house in Manly. I was paid in cash at an hourly rate of $24.”
From [17] Mr Carbone said:
“17. On 29 April 2020 I was doing painting work for Denis at 5 Cabramatta Road, Mosman NSW.
18. I worked at the Mosman address for 8 days between 20-24 April 2020 and 27-29 April 2020. I was paid in cash at an hourly rate of $24, and physically handed the cash by Denis.”
Mr Carbone said he had no direct dealings with the owner of the property. He worked under the instructions and direction of Denis.
Mr Carbone thought he was working in a “straightforward and casual arrangement”.
As far as he understood it, Denis was the boss and he was he who told him to go to the property and work on the property by doing painting. He said:
“Denis supplied the paint and painting equipment.”
Mr Carbone described his injury consistently. He said that after falling from the ladder “I noticed severe pain in my left wrist, back and throughout the left side of my body. I also felt strong dizziness and a ringing in my ears for a few seconds”.
As to treatment, Mr Carbone said at [26] that he was taken to Royal North Shore Hospital where he was advised that he had sustained a fracture of his left wrist, namely a displaced fracture in the left radius and an ulnar styloid fracture and a left scaphoid fracture. He underwent surgery on 30 April 2020 and was discharged after three days. He came under the care of Dr Mark Hile, orthopaedic Surgeon, and on 26 November 2020 Dr Nushin Ahmed, JMO at Royal North Shore Hospital (RNSH) removed the hardware.
He came under the care of a Neurosurgeon Dr Timothy Steele “for severe back pain which I noticed within seconds of falling to the ground”.
He said he returned to work in December 2022 working five to six days per week with restrictions.
At [32] Mr Carbone said he was limited in bending and lifting activities as far as his back was concerned and he had pain and discomfort with long standing and sitting for periods of time. He experienced vertigo, with falls, neck problems, shoulder, hip and knee problems.
Mr Carbone made a third statement dated 12 October 2023 in answer a statement from Mr Gabrielli. It is accordingly convenient to consider Mr Gabrielli’s statement at this point.

Statement Denis Gabrielli 28 September 2023.

Mr Gabrielli’s statement is dated 28 September 2023.[3] He said that had been running his painting business “Mr Colour Painting” since 2014. He had an ABN for his business. He said:
“Until recently I had no workers compensation insurance because I did not have any workers and only used contractors. The way I have operated my business is that I am a Sole Trader and used Sub-Contractors to help finish jobs. I have used them more in the past few years as I have had children with my first baby being born in 2018, and my wife experiencing PTSD symptoms. I’ve had about 14 – 15 years experience as a painter and decorator.”
[3] Second respondent’s Reply page 2.
He explained his business practice of calling someone he knew from his list of qualified people, or advertising on painting and decoration Facebook pages or Gumtree to help him. These people would come over and bring their own tools, “as with Mr Carbone.” Mr Gabrielli said that jobs could vary in length. He said at [3]:
“ …..I say the Applicant was a Sub-Contractor and not my employee and I would pay him by cash like he requested.”
Mr Gabrielli said that he had moved from Sydney to Northern NSW and had taken out a works compensation insurance policy, but at the time of Mr Carbone’s accident he did not have any workers compensation insurance.
Mr Gabrielli said he met Mr Carbone in September 2019 at Fairlight where they were both working for Mr Frederico Buongiorno. Mr Gabrielli asserted that they were both subcontractors and he said that Mr Carbone asked him if he had any work.
Mr Gabrielli said that he contacted Mr Carbone on 11 September 2019 to “work at a site I had a job on.” Mr Carbone “worked for me” at Freshwater for one or two days. Mr Gabrielli said that Mr Carbone worked independently and did a reasonable job.
He said:
“5. Mr Carbone brought his own tools and brushes that he carried in a bag. I did not work on the job. I met him on the morning of the job to give him the key to the vacant property. I asked him to send through his invoice, he said he would, but in the meantime asked to be paid in cash as he need the money. I agreed because I felt sorry for him.”
Mr Gabrielli annexed a copy of a text message he sent on that date as annexures A and B, A being a translation from the Italian text. The English version was, relevantly:[4]
“11/09/2019 6:21 pm
D Hi Giovanni, this is the address for tomorrow, 10/104 Wyadra Ave Freshwater. Let me know if you can get there without problems if you can't stop at the Manly Vale bus stop; I live just here.
G Hi Dennis, it gets near there, till tomorrow
D OK Perfect, will see each other at work at 7 pm, good evening mate
G Thanks, to tomorrow.”
[4] Second respondent’s Reply page 7.
Mr Gabrielli said he then contacted Mr Carbone to help finish a job in Manly. He met him that morning to give him the key to the vacant rental property. Again, Mr Carbone supplied his own brushes and tools that he carried in a bag.
Mr Gabrielli did not work on this job either. As will be discussed later in these reasons, Mr Gabrielli’s statement was not as precise as it might have been. He said from [5]:
“…This text message & messages dated from 11 September 2020(sic) to 11 May 2020 translated from Italian are annexed as Annexure ‘A’.
6. In addition, the original Italian text messages for the same period are annexed as Annexure ‘B’.
7. I contracted Mr Carbone again for 1 day to help finish a job in Manly. I met him that morning to give him the key to the vacant rental property. He supplied his own brushes and tools that he carried in a bag. I did not work on the job. This text message is annexed as Annexure ‘A’ & is dated 20 January 2020.”
In fact the next text message stated:
“23/11/2019 12:03 pm
D Hi Giovanni, is everything OK? I have a job for Tuesday and Wednesday; could you give me a hand. Let me know so I can organize myself. Thanks Mate.”
Mr Gabrielli did not explain what job that text referred to. The text messages relating to the Manly job appeared to have begun on 19 January 2020:
“19/01/2020 6:45 pm
D Hi Giovanni, Tuesday you are with me. Tomorrow I'll send you the address. Good evening.
D (2)
G Hi Denis, yes I'll be there. Good evening to you
D Thank you handsome
20/01/2020 5:12 pm
G Hi Dennis, can you confirm tomorrow?
D Hi handsome, if I send you the address we can meet there at 7 or you can stop at the Manly Vale bus stop. I live just
there. 11/15 Fairlight St. Manly
G Perfect, at the Manly Vale bus stop tomorrow
D At what time will you be here?
G If you want I'll arrive -Let me check the time
21/01/2020 6:06 am
D Hi Giovanni, this is my address; we'll meet here 8/21-23 Koorala St. Manly Vale. Two minute walking from the bus stop
G OK Perfect, I am here; when you are ready
DOK I am coming
21/01/20203:55 pm
D I'll be there in a tick
OK”
Mr Gabrielli said:
“8. When I first met [Mr Carbone], he did tell me that he had his own painting business and was a Sole Trader. I did check online and found that he had an ABN from 2019 which is annexed with Annexure C.
9. We only spoke in Italian.”
Mr Gabrielli also exhibited text messages from February and March 2020 as to discussions about further work. At [10] Mr Gabrielli said:
“Mr Carbone asked me several times to go into business together. Details of this are set out in text messages dated 28 March 2020 to 10 April 2020.”
The following texts were lodged for the dates between 28 March 2020 and 14 April 2020:
“28/03/2020 5:38 PM
G Hi Dennis ... I am working also tomorrow, fortunately ... I'll call you during the week, so if have got half an hour we can meet, and I'll explain everything. Bye
D OK mate, no worries
30/03/2020 1:06 PM
D Hi Giovanni, are you at home or are you working because I am in Mosman at the moment
09/04/2020 8:04 AM
D Hi Giovanni, how are you? Today I am in Mosman; if you are here we can meet 09/04/2020 9:18 PM
G Hi Dennis, sorry if I don't answer, I fell asleep after work. If you like we can meet tomorrow afternoon
10/04/2020 1:44 PM
G Hi Dennis if you are free I leave the city to come and meet you
D Hi Giovanni, today is my birthday. Can we meet tomorrow or on Sunday?
G Good wishes! OK. Perfect
D Thank you handsome; round about this time is fine by me
G OK. Yes.
11/04/2020 12:04 PM
G Hi Dennis, I am leaving now from the city. We can meet at KFC at 1:30?
D OK, no worries, see you later
G OK
11/04/2020
D Hi handsome, are you in the area? I have to go at 3 to Manly to see the guys that finish work
G I am already here
D Come to me and we can talk in the garage; you remember where I live
G OK
D Would you like a beer?
G OK
D 5 Cabramatta Rd, Mosman
G I know where it is; It will take me about 1 hour; what time do you want to meet; is 7 am OK?
D Yes, at & the coffee shop opens; I'll get some for you along the road
G OK Perfect
D Do you need a lift, or can we get there on foot?
G I'll walk, tks. See you tomorrow. Good evening Dennis
D Ok same to you
G Tks
14/04/2020 7:00 AM
G Hi Dennis, I am here
D I'll come and open the door”

Mr Gabrielli then stated:
“11. Mr Carbone sent me several text messages discussing 3 different painting jobs he was going to quote for. I had nothing to do with these jobs & just gave him advice. These are referred to in text messages dated 10 February 2020, 11 February 2020, 15 March 2020, 16 March 2020 and 25 March 2020 in Annexure ‘A’.”
The texts did indeed demonstrate enquiries made of Mr Gabrielli by Mr Carbone.
“10/02/2020 7:46 pm
G Newtown the cladding product QBO 16 cladding LY002 colour paint required
D Is this the name of the brand?
G Yes
DA good job, well done Giovanni
G Yes, do you think that 5000 is right?
D It will take 2 days, first coat one day and second coat the next
GOK
D Can we get everywhere, or do we need a ladder? Yes, by the look, I think that 5000 is right
G Yes, we need a long ladder. OK, let see if he accepts.”
The second February text said:
“11/02/2020 5:53 am
This job was listed on Mon, 10 February 2020
You quoted on Mon, 10 February 2020
Job Details
Need a team to paint 270 new apartments
1 bedroom
2 bedroom
3 bedroom
Studio
Only painters with a big team and experience
Need all completed with 4 months
Specific job details:
Schedule: Need job done urgently
D Good morning Giovanni, I have already quoted for this job
G Good morning Dennis. No. We should do it
D It says by 10 February
G I don't know if it is by the hour
D I don't think so, try to see with the Italian you know
G OK. If it is by the hour, how much we can pay per person all inclusive? Per person.
D Yes, we could do like that
G Say 130?
D 130 per hour
G Per person I meant including material and taxes. I'll tell you what he says
GPO Box 4136 Sydney NSW 2001
T (02) 9231 3288
F ID2) 9221 4763
E [email protected]
D Yes, more or less. I think it is better to measure the apartments and calculate by square metre plus material. It's easier.
G Ah, OK
D Try to see. I think they are looking for a team of Chinamen to work
G AhAh OK. I'll write as soon as the beast let me smoke. Have a good day Dennis
D Are you at work already. Ok have a good day
G I am waiting down in the street, Bye
11/02/2020 05:44 PM
G Hi Dennis ... They have already given it to another company
D I thought so; too big for us. I hope you get the other one
G Yes you are right; you are absolutely right. I hope for the other one.”
The texts of 15 March 2020, 16 March 2020 and 25 March 2020 were in similar vein. On 16 March 2020 Mr Carbone sought advice from Mr Gabrielli about some difficulties he was having with his present employer, the texts were interspersed with comments about the COVID-19 pandemic in Italy. The text of 25 March 2020 said:
“25/03/2020 11:34
G Hi Dennis ... sorry to bother you but I have taken a job but don't know how much to ask. They want me to paint the rooves of two bedrooms. Can you give some advice? Thanks.
D Hi Giovanni, if they can take it, charge 400-500 per day.
G 400 on ceiling, or both? Tks
D Both, but how big are they?
G Normal, I think 5x4
D Charge 250 e be done with it
G Pass the paint? Sorry, I do not understand.
G 28/03/2020 5:38 PM
G Hi Dennis ... I am working also tomorrow, fortunately ... I'll call you during the week, so if have got half an hour we can meet, and I'll explain everything. Bye
D OK mate, no worries.”
Mr Gabrielli then described the background to the occurrence of Mr Carbone’s injury. Mr Gabrielli said he had been doing jobs for Jetcharm since about 2014.
He thought that the relevant job was an extension pergola. He said at [12]:
“I’m not sure who supplied the paint, whether it was Jetcharm or whether I bought it. Jetcharm usually reimburse me for any paint materials purchased. There was no written contract between Jetcharm and myself.”
The invoicing procedure was that he would invoice Jetcharm and Jetcharm would pay it by electronic funds transfer. Mr Gabrielli annexed the relevant invoices.
He said that the agreement between he and Mr Carbone was at the rate of $25 cash per hour, as Mr Carbone never sent any invoices. Mr Carbone started work on 14 April 2020. He said that there were two other subcontractors working for him, Juan and Alejandro.
Mr Gabrielli said that Mr Carbone worked at the property for five days one week and three days on the next. He thought he was there on the first week when Mr Carbone was there. Mr Gabrielli thought he was working at that site on the first week and he came back on the date of the accident just after 3pm. He said:
“Mr Carbone brought his own brushes and tools, he worked unsupervised because he could complete his work and skills.”
When he got to the premises on 29 April 2020 he and Juan and Alejandro walked around and found Mr Carbone lying on the ground. Mr Gabrielli mentioned that the scaffolding had been erected by Jetcharm, but that Mr Carbone said he had “fallen from a ladder.” Mr Gabrielli also said that “I do not know why he was climbing the scaffolding at the front of the building.” He said:
“As far as I know no one saw him fall. As the days' work had finished the materials and equipment had been packed away. I do not know why he was climbing the scaffolding as it was past 3:00pm. Nor I do not know why he was climbing the scaffolding at the front of the property because the painting work was at the rear of the property. After we found him, I took him to hospital.”
Mr Gabrielli asked Mr Carbone if he was “all good” and that he would take him to the hospital.
At [20] Mr Gabrielli said:
“After we found him, I took him to hospital. On the way to hospital, he told me he was receiving Centrelink payments. To the best of my memory in the car, he said to me ‘Take me home, I do not want to go to the hospital in painting gear because I am on Centrelink’. I was shocked when he said then, but I still drove him home. He went inside and changed and I waiting in the car. He took all of his tools and materials out of the car and into his house and then I took him to Royal North Shore Hospital.”
Mr Gabrielli said that he received a text message on 30 April 2020 asking for money and to borrow the ladder. Mr Gabrielli lent him the ladder and paid him for his work. He met him at Cremorne Shopping Centre to do so and Mr Carbone brought the ladder back on 1 May 2020.
On 11 May 2020 a further conversation occurred when he asked Mr Gabrielli if he had any more jobs, Mr Gabrielli said:
“22. This is what he meant in his text dated 11/5/20 in annexure A. I cannot remember exactly what I said but I probably said I would let him know. However, I did not get many more jobs after telling me he was receiving Centrelink payments. He appeared fine when I saw him and mentioned nothing about his fall.”
The text read:
“11/05/2020 8:55 AM
Hi Dennis ... did you get anything for this week?”
Mr Gabrielli said he never got a tax invoice from Mr Carbone.

Mr Carbone statement 12 October 2023

Mr Carbone responded to Mr Gabrielli’s statement with a further statement dated 12 October 2023.[5] Mr Carbone took issue with Mr Gabrielli's description of him as a “subcontractor”. He repeated the history that he contacted Frederico, who he now knew was Frederico Buongiorno. Mr Carbone said:
“I knew nothing about subcontracting when I started with Buongiorno and had no discussions with anyone about an ABN or about invoices.”
[5] Application to Admit Late Documents page 1.
He said Mr Buongiorno provided the paint and equipment. He said:
“7. It was not until after a few jobs that I became aware that I should obtain and use my own brushes as I realised other painters did not like me using their brushes. So I got some brushes of my own. Since working as a painter here in Sydney, bringing my own brushes to a job is all I have bought. When I did jobs for Denis Gabrielli, I sometimes brought my own brushes.”
With reference to the Freshwater job, Mr Carbone denied that he was given keys to the premises. He said Mr Gabrielli was present whenever he needed to access the premises.
Mr Carbone said that he did not bring tools as Mr Gabrielli suggested, but brought his own brushes. He said:
“Denis Gabrielli has since supplied the paint, ladder, pain brushes, scotch tape, gap filler, canvass floor covers, rollers and extension poles for rollers.”
Mr Carbone denied that there was ever a conversation with Mr Gabrielli to the effect that Mr Carbone had his own painting business and that he was a sole trader. He said he was just getting started in painting work at that time.
He said that as he did more painting jobs he became aware it was very difficult to get jobs as a painter unless an ABN was obtained and unless he complied with requests on some jobs to provide invoices. Not all jobs had those requirements and some, even though they wanted an ABN, still paid him cash.
Mr Carbone said:
·        he did not advertise as a painter;
·        he had not employed any other painters;
·        he did not have any business logos or logos on clothing;
·        he has not owned a motor vehicle since arriving in Sydney, and
·        he had always used public transport to get to the painting jobs.
He said he did have some business cards printed “as someone told me they might be useful”. He said he did not use them and had not distributed them.
He said he worked as a painter for Mr Gabrielli supplying his labour only for an agreed cash payment of $24 per hour. Each job that he did was arranged separately and Mr Carbone agreed to paint and work for the hours stated by Mr Gabrielli, beginning at 7.00am usually and finishing at 3.00pm. He told Mr Carbone where to paint on the site and he supplied ladders, rollers, extension roller poles and buckets.
As to the date of injury Mr Carbone said that Mr Gabrielli in fact arrived about 30 minutes before his fall. He said that Mr Gabrielli referred to scaffolding but Mr Carbone did not know what he was referring to.
At [18] Mr Carbone took issue with Mr Gabrielli’s account the conversation on the way to hospital. He said:
“19. I made no statement to him on that date about Centrelink benefits. It was Denis Gabrielli who suggested to me that I should go home and change before going to hospital. He told me that the reason I should do that was because he did not have workers compensation insurance and he did not want the hospital to think I had been injured at work so that the hospital would not enquire as to the method of payment related to a workers compensation claim.”
As to his receipt of Centrelink benefits, Mr Carbone said he had only received them when legally entitled do so, when his income was such as not to prevent the entitlement. Weekly payments had been processed by iCare after his injury, after obtaining Centrelink clearance to do so.
Mr Carbone said he was surprised by Mr Gabrielli’s conduct but he was more interested in getting treatment for his injured hand. He said Mr Gabrielli assisted him with changing his clothes and his shoes, washing and cleaning him up and he then went to the hospital. He said he did not take his tools out of his car because it was Denis Gabrielli’s car and he did not have tools.

Factual investigation

Mr Carbone also retained the services of Seca Group Pty Ltd who reported on 9 March 2023.[6]
[6] Application to Resolve a Dispute page 19.
This report revealed that Mr Colour Painting and Decorating ABN 89 229039955 was registered on 12 September 2019 to Denis Gabrielli. The investigator had spoken to the owner of the Mosman property, Mr Lloyd Alty, who advised that he had arranged with Jetcharm Constructions to undertake building works at the subject Mosman address. These were to be undertaken in two stages, with the main dwelling extension being the first and the second being an outdoor entertainment area, swimming pool and rear shed. It was during the second stage that Jetcharm had used the services of Mr Gabrielli to undertake the painting in the entertainment area and rear shed.
The works were to be managed directly by Jetcharm Constructions and any contractors were appointed and managed by Jetcharm Constructions, with no involvement from himself.
He said the works given to Mr Gabrielli centred on the cream areas of the building and that there was a second group of painters working on renovations called “Busy Bee”.
The investigator went to the offices of Jetcharm and spoke to Mr Damian Lane, the director, who confirmed that the works were undertaken at the given address by Jetcharm. Jetcharm had engaged the services of Denis Gabrielli from Mr Colour Painting and Decorating. They were not aware of any injuries occurring during the works.
Mr Lane confirmed the details of the contract as stated by Mr Alty. He did not know whether Mr Gabrielli utilised employees or subcontractors, but he did recall Mr Gabrielli worked primarily by himself or with an individual. Mr Lane said that Jetcharm had a business relationship with Mr Gabrielli and that they had used his services previously on several jobs over the years.
He confirmed payments for work at the Mosman address were paid to Mr Colour Painting and Decorating and not the owner of the property.
The report included internet searches of Jetcharm and Mr Gabrielli.
Mr Gabrielli’s website stated (under the name “Mr Colour Painting and Decorating”):
“I’m a highly skilled licensed and comprehensively insured Master Painter living in the norther beaches of Sydney. My team and I help homeowners, small business and investors paint property from Sydney to Newcastle.
You will find me personally on the job, directly responsible for every painting project. I don’t outsource my work to other painting companies. I quote the job and run the job to guarantee the highest quality.”

Mr Carbone’s bank statements

Bank statements were lodged by the applicant and appeared from page 261 in the ARD. They covered the period from 30 September 2019 and with an opening balance of “nil” and continued to page 328 concluding on 30 June 2020 with a balance of $323.93.
The entries were the subject of submissions by the parties. Relevantly, the credit columns showed the receipt of payments from Portos Painting as follows:
·        $1,140 on 5 October 2019;
·        $1,290 on 12 October 2019;
·        $1,470 on 20 October 2019;
·        $1,230 on 27 October 2019;
·        $450 on 4 November 2019;
·        $1,200 on 11 November 2019;
·        $1,170 on 17 November 2019;
·        $1,080 on 24 November 2019;
·        $1,140 on 1 December 2019;
·        $1,200 on 9 December 2019;
·        $1,440 on 17 December 2019;
·        $1,170 on 23 December 2019;
·        $960 on 30 December 2019;
·        $720 on 8 January 2020 ;
·        $1,140 on 14 January 2020;
·        $1,050 on 20 January 2020;
·        $720 on 28 January 2020;
·        $60 on 3 February 2020;
·        $1,110 on 10 February 2020;
·        $1,180 on 17 February 2020;
·        $1,110 on 25 February 2020;
·        $1,110 on 5 March 2020;
·        $1,080 on 11 March 2020, and
·        $1,200 on 19 March 2020.
The first involvement of Centrelink appears to have occurred on 23 April 2020 with a deposit of $581.28 from JobKeeper. Mr Carbone then received $1,131.38 from JobSeeker on 22 May 2020, 5 June 2020 and 19 June 2020.
Further deposits in Mr Carbone’s account were, relevantly:
·        9 December 2019 $180 Monica Di Costa;
·        15 January $72 Monica Di Costa;
·        31 January $120 Monica Di Costa, and
·        1 February $332 Anthony Ogg.
Two transfers entitled “Bonifico” of $615 and $691 were recorded on 3 February 2020. I was advised that “Bonifico” means wire transfer in Italian. The following deposits also appeared, the words in italics appearing on the statement:
·        17 February 2020 $2,000 from G De Bartolo;
·        21 February 2020 $168 Monica Di Costa “a gift”;
·        3 March 2020 $108 ((?) obscured by photocopying) Monica Di Costa “a gift”;
·        27 March $270 G De Bartolo;
·        2 April 2020 $273 G De Bartolo;
·        17 April 2020 $300 Marco Columbo “ap gift”;
·        18 April $100 Marco Columbo “a gift”;
·        19 April $450 Marco Columbo “ap gift”;
·        19 April $150 Marco Columbo “ap gift”;
·        20 April $150 Marco Columbo “ap gift”;

·        21 April $155 Marco Columbo “apo gift”;
·        5 May $100 Marco Columbo “apo gift”;
·        7 May $600 G De Bartolo;
·        15 May $400 Marco Columbo “ap gift”;
·        21 May $400 Marco Columbo “ap gift”;
·        21 May $300 Marco Columbo “ap gift”;
·        31 May $100 Marco Columbo “ap gift”;
·        1 June $200 Marco Columbo “ap gift”;
·        7 June $700 Marco Columbo “ap gift”;
·        13 June $500 Marco Columbo “ap gift”;

· 23 June $300 G De Bartolo, and
· 23 June $500 Marco Columbo “ap gift”.

MEDICAL

As indicated, the medical issue concerned whether Mr Carbone has an entitlement to lump sum compensation for the condition of his back. If Mr Carbone proves to be an employee, liability for injury to his wrist and for scarring has been admitted.

Hospital notes

Mr Carbone was admitted to RNSH on 29 April 2020. The notes recorded:[7]
“History of Presenting Complaint
46 year old RHO male
Fell from standing height
Non-English speaking background. Speaks Italian. Phone interpreter service used.”
[7] ARD page 200.
The social history recorded that Mr Carbone was “not currently working due to Covid.”
On 22 May 2020 Mr Carbone presented again at the hospital, complaining of four days of headspinning. The notes recorded:[8]
“Fall with headstrike at home 3/52 - # L radius
No CTB at the time (RNSH) - had Radius fixed last week.”
[8] ARD page 248.
There was no record of any complaint of back pain when Mr Carbone in the hospital notes.

Health Promise Medical Centre

Mr Carbone’s general practitioner (GP) was Dr Weerabaddana from the Health Promise Medical centre in Mosman.[9] Mr Carbone first consulted Dr Weerabaddana on 12 November 2019, complaining of a left knee injury. On 19 November 2019 Dr Weerabaddana noted that Mr Carbone could not understand much English. He also noted:
“…history of lower backache as well
[Intermittent] flaring up, chronic problem, denies pain now.”
[9] ARD page 148.
Dr Weerabaddana ordered an X-ray of Mr Carbone’s lumbar spine at that same consultation.
On 4 December 2019 Dr Weerabaddana recorded that Mr Carbone “still got back ache and knee pain” which occurred at the end of the day after his physical work.
The history of the subject injury was given to Dr Weerabaddana on 9 June 2020, which was the date of Mr Carbone’s next consultation. The entry in the notes did not mention any cause, but on 22 June 2020 Dr Weerabaddana recorded:
“…patient speeks less English, used Interpreter service
patient still got some pain in left wrist and still having issues with
using left wrist and fingers
now telling this happens at work
requesting a WC certificate
explained I do not that service and advised to find a diffent doctor
advised pain relief, regular physio and precausions”
(As written).
Notwithstanding, Mr Carbone continued to consult Dr Weerabaddana, whom he saw next on 6 July 2020 about his wrist, and on 2 September 2020 the notes recorded:
“…complains of ongoing backache, affecting his day to day life, long history of same, was investigated in Italy and was advised he got [disc] dosc problems. Xray- lumbosacral spine done here did not show any issues with discs but subtle opacity, requested chest Xray but he did not do it.”
Dr Weerabaddana then referred Mr Carbone to Associate Professor (Dr) Timothy Steel, consultant neurosurgeon, who reported on 25 February 2021.[10]

Dr Timothy Steel
[10] ARD page 128.

Dr Steel took the following history:
“He developed low back pain following a fall In March 2020. He fractured his left wrist which required surgery, Since this time he reports diffuse lumbosacral pain. He also reports knee pain. He rates !he pain a 10 on a VAS and he has been unable to work.”
Dr Steel ordered an MRI and on 17 March 2021 reported:
“MRI lumbar spine was performed at St Vincent's Clinic on 4 March 2021. There Is a significant right sided extraforaminal disc protrusion at the L3--4 level. This displaces the ganglion at the right L3 nerve root. The rest of his spine Is normal.”

Dr Richard Parkinson

On 6 January 2022 Dr Richard Parkinson, neurosurgeon, reported to GP Dr Reno Tringali.[11] Dr Parkinson took the following history:
“Thank you very much for asking me to see this charming 48•year-old right-handed painter who presents with a lower back injury from a fall in April 2020. He has significant left sciatica from this. He has had good health in the past. There is no history of back injury in the past.”
[11] ARD page 126.

Dr Parkinson saw an MRI of 25 November 2021. He said:
“I was pleased to review an MHI scan of the lumbosacral spine performed at med scan Barangaroo on 25/11/2021. I do not completely agree with the report and I think there is a posterolateral disc bulge on the left at L3/4 causing some subarticular recess compression of the traversing left L4 nerve root.”
Dr Parkinson recommended a further MRI scan be carried out in his report of 9 March 2022.[12] He did not report thereafter, but Dr Conrad was briefed with an MRI 29 March 2022.

MRIs
[12] ARD page 177.

MRI scans were taken on four occasions: Their respective comments were:
4 March 2021.[13]
[13] ARD page 130.
“Broadbased right far lateral/extraforminal disc extrusion at L3/4 slightly displaces the right L3 nerve with some distal L3 oedema…”
2 September 2021.[14]
[14] ARD page 142.
“Comment:
There does not appear to be central or foraminal neural compromise throughout the lumbar spine.
There is no bone injury.
No disc injury.
There may be minimal facet joint arthrosis at LS/S1.
No disc protrusion or tear.”
25 November 2021:[15]
“Comment:
Mid lumbar disc changes as described but no disc protrusion or convincing evidence for nerve compression.
Some lower lumbar facet arthritis present.
There is a little oedema in the subcutaneous fat posteriorly as described at the L1/2 level.”
29 March 2022
“MRI scan of Lumbar Spine: Low-grade annular tears and disc bulges significantly at L4/5, L3/4, and L2/3, in particular L2/3 small disc protrusion.”

Dr Peter Conrad, consultant surgeon
[15] ARD page 158.

Dr Conrad was retained as Mr Carbone’s medico-legal specialist. He reported on 16 March 2021[16] and 17 May 2021.[17]
[16] ARD page 37.
[17] ARD page 43.
In his first report Dr Conrad was primarily concerned with the wrist injury. He took a history that:
“… in the fall he also hurt his back and has ongoing back pain.
….
He denies any previous significant injuries or symptoms in his left wrist, left hand or back.”
Dr Conrad’s opinion as to the back condition was:
“In the accident, he also injured his back. In view of his ongoing back pain, he now should have an MRI scan of the lumbar spine.”
Dr Conrad assessed 5% whole person impairment for the back condition.
In his report of 17 May 2021 Dr Conrad had available the MRI dated 4 March 2021. He said:
“… Mr Carbone has sustained a serious injury to his lumbar spine and [the MRI] now confirm[s] that he has a disc protrusion.”
Dr Conrad did not specifically mention the back condition again, and confirmed his previous WPI assessment.
In a further report dated 29 April 2022, Dr Conrad noted the report of a further MRI scan dated 29 March 2022.[18] He said:
“MRI and MRA brain and MRI lumbar spine, 29 March 2022
Brain radiology: A few scattered nonspecific supratentorial FLAIR hyperintensities, no other abnormalities to account for left lower limb pain.
MRI scan of Lumbar Spine: Low-grade annular tears and disc bulges significantly at L4/5, L3/4, and L2/3, in particular L2/3 small disc protrusion.”

Dr Roger Rowe, orthopaedic surgeon
[18] ARD page 52.

Dr Rowe was retained by the first respondent as its medico-legal specialist. He reported on 17 December 2021.[19] Again, Dr Rowe was also concerned with the wrist injury and treatment. With regard to Mr Carbone’s back condition, Dr Rowe said:
“Mr Carbone said that this began to ache around one or two months after the fall.
He said that he consulted neurosurgeon Dr Tim Steel on 4 March 2021. He had an MRI. He was given an injection which helped him for just one month.”
[19] First respondent’s Reply page 69.
Dr Rowe noted the MRI of the lumbar spine of 25 November 2021. He said desiccation was present at L2/3 and L3/4, without any nerve root compromise.
Dr Rowe described Mr Carbone’s presentation as “a very complicated one.” He thought that it was difficult to obtain a clear relationship between any other injuries than the wrist injury to the subject fall. He noted that no investigations had been undertaken until September 2021, about 17 months after the fall, and he thought there was “a significant psychiatric component” in Mr Carbone’s presentation.
Dr Rowe wrote further reports, but maintained his opinion that the back injury (relevantly) was not consequential to the subject injury.[20]

SUBMISSIONS
Mr Nicholson
[20] Dr Rowe’s further reports dated 19 January 2022 and 24 August 2022.

Mr Nicholson relied on Dr Conrad’s assessment. He referred to the three statements made by Mr Carbone and submitted that the discrepancies within them were not major. He emphasised the objections Mr Carbone had to Mr Gabrielli's statement. He said for instance that Mr Gabrielli was clearly wrong when he indicated that Mr Carbone had a vehicle. He submitted that although there were business cards admitted to by Mr Carbone, the evidence was that he never used them.
He referred to the bank statements and referred to the many deposits Mr Carbone received from Portos Painting which contradicted he said the invoice issuing allegations.
Mr Nicholson asked what was the pattern that was demonstrated by the bank statements?
He said even if the question of invoicing was significant, the evidence showed that it relates to another time and there was no direct payments shown in the bank statements from Mr Gabrielli or anyone else.
Mr Nicholson referred to the Lee Kell Investigator of Mr Gabrielli noting that he had been running a business since 2014 and although he said he had no workers, Mr Nicholson said they all look like workers, they were at his call and the equipment was provided when they began to work.
Mr Nicholson referred to the description by Mr Gabrielli on his website as having a “team”.
He submitted on the whole the evidence would show that Mr Carbone was a worker.
He referred to the English translations of the text messages saying that they were all friendly messages involving banter and discussions about COVID but nonetheless the flavour of the text were that Mr Gabrielli was running a business.
Mr Nicholson submitted that although Mr Gabrielli said in his statement that he did not have workers but he only hired contractors, they all look like workers.
They were at his call where the equipment was provided. He described himself on his website as having a “team”.
Mr Nicholson noted that Mr Gabrielli paid Mr Carbone in cash, not by invoice and although Mr Carbone had conducted earlier business arrangements with others who wanted an invoice such as Portos that was not the case in his relationship with Mr Gabrielli.
He submitted that the translation of the text messages gave the flavour of a work relationship of a straightforward nature.
Mr Nicholson also relied on written submissions.
He referred to UPVC Window Solutions Pty Ltd v Workers Compensation Nominal Insurer (icare),[21] submitting that in simple oral contracts the usual indications of an employment relationship remained relevant: eg control, directions, the supplier of the materials [paint] and means of performing the work task [paint buckets, rollers & roller poles, ladders & the like]; and an examination of whose business or enterprise the work was being performed for.
[21] [2023] NSWPICPD 11.
Mr Nicholson surveyed the evidence and concluded by relying on Dr Conrad’s opinion
was consistent with the nature of the fall itself, the complaints in September 2020 to Dr Weerabaddana and the subsequent investigations and treatment of Mr Carbone’s back. The delay in complaints about the back could be explained both by the language difficulty, and the focus on the injury and surgical treatment of the wrist. He submitted that the earlier back problems recorded in 2019 were in effect self-limiting.

Mr Epstein

Mr Epstein referred to the evidence. He submitted that it was possible to draw an inference that Mr Carbone was conducting a business for himself from the text messages that were attached to Mr Gabrielli’s reply.
Mr Epstein referred to the ABN in Mr Carbone’s name which had been registered since 5 October 2019.[22] He referred to Mr Carbone’s business card, which contained two small photographs and a sign saying “Handyman” underneath it, with the name “Carbone Giovanni” and his email address. It also contained Mr Carbone’s home address and phone number.
[22] First respondent’s annexures page 37.
Whilst in English translations of the text messages were given, Mr Epstein referred to the original text message in Italian which showed a series of photos of the property about which Mr Carbone was enquiring.[23]
[23] Second respondent’s Reply page 22.
Mr Epstein referred to Mr Gabrielli’s statement wherein he stated that Mr Carbone bought his own tools and brushes which he carried in a bag[24] on 11 September 2019. This entry demonstrated that Mr Carbone made his way to the address and worked by himself. He submitted that the tone of the emails was more consistent with discussions of being contractors rather than between employer and employee.
[24] Second respondent’s Reply page 3[5].
Mr Epstein submitted that the text messages, when read as a whole, were more indicative of a relationship between two contractors rather than an employer/employee.
Mr Epstein then turned to the account given by Mr Gabrielli of the conversation in the car on the way to the hospital. Mr Gabrielli said that Mr Carbone asked to be taken home first because he did not want Centrelink to know he had been working, whereas Mr Carbone said that Mr Gabrielli told him not to say it happened at work because he was uninsured.
Mr Epstein submitted that the resolution of this inconsistency was necessary because it went to credit – a theme taken up by Mr Stockley, as will be seen.
Mr Epstein then turned to the contents of the bank statement. He referred to the various credits that appeared therein, observing that Mr Carbone had made no attempt to explain what they related to. It could be inferred, he submitted, that they represented payment for other painting jobs Mr Carbone had been carrying out.
So far as the indicia for a worker was concerned, Mr Epstein agreed with Mr Nicholson’s summation of UVPC that the test was multifactorial.
Control, he submitted, was a factor and the text messages showed that Mr Gabrielli exercised no control. Mr Gabrielli asked Mr Carbone to supervise on one occasion.
So far as the question of the supply of tools was concerned, Mr Epstein conceded that it was not clear what tools were brought besides the bag of brushes. He accepted that the paint was supplied by Mr Gabrielli.
Mr Epstein said that no uniform was worn by the parties. As far as pay was concerned, there were no invoices at all. It was an oral agreement and Mr Epstein again referred to the text messages, saying that they showed Mr Gabrielli delegated his work to Mr Carbone. Mr Carbone was allowed to delegate, and on one occasion to supervise other workers, and worked mainly unsupervised. It was true that Mr Carbone worked set hours, Mr Epstein said, but they were the hours quoted for the job.
Under the multifactorial test, Mr Carbone thus could not be seen as a worker. He worked unsupervised, he let himself in, he had a responsibility over other workers who weren’t as experienced, and he could not be seen as an employee.
Mr Epstein then turned to the question of whether Mr Carbone could be seen as a deemed worker. Mr Carbone had business cards, Mr Epstein said, and an ABN. However, more than that the text messages demonstrated that Mr Carbone was holding himself out as a person running his own business. In the months before he was contacting Mr Gabrielle asking his advice about different jobs ranging from what he should quote to what materials he would need. This was all “completely consistent” with his running his own business.
In Humberstone Dixon J said the test was whether a person was holding himself out as running his own business, Mr Epstein submitted.[25] The bank statements showed that Mr Carbone had various other jobs apart from those with Mr Gabrielli – and at different times he was receiving Centrelink payments.
[25] Mr Epstein did not supply any citation for this authority,
Mr Carbone’s credit had to be brought into question, Mr Epstein submitted. Mr Carbone did not tell people at the hospital that he had been injured at work, which would support Mr Gabrielli’s version of the contradictory statements made in the car.
In an exchange concerning the question of entrepreneurship, Mr Epstein submitted that it followed from his submissions that Mr Carbone was promoting his own business, which was apparent from the text messages. Although he was described on Mr Gabrielli’s website as part of the team, that was consistent with his furthering his own business.
Mr Epstein submitted that the facts of this case were distinguishable from those in UPVC as the worker in that case had been doing the same job for four months, whereas the invoices to Jetcharm, which were the only evidence of how long Mr Carbone had been working on this contract, showed the work occurred over twelve days; four days the first week, four days the second week, one day the third week and three days the final week. They were not there continually, Mr Epstein submitted. “It may well be that he was working in other places at the same time,” he said. He was getting payments from Mr Columbo, Mr Epstein submitted, the situation was just not clear. In any event, Mr Carbone was certainly not there Monday to Friday. Mr Epstein said. “It may well be that this was to suit [Mr Carbone] as he had other jobs at the same time,” Mr Epstein suggested.
The text messages were very important, Mr Epstein submitted, because they were contemporaneous, and should be given significant weight. They showed that the applicant was “trying to run his own business.”

Mr Stockley

Mr Stockley by agreement was to consider the medical case but he did refer to the significance of the two competing inconsistent accounts of the conversation held between Mr Carbone and Mr Gabrielli in the car on the way to hospital. Whilst the enquiry as to the nature of the contract depends on the objective intention of parties at or before the time of its formation, matters that arose after the formation can inform the intention of the parties. Such matters as payment of money or further work being done were all relevant.
The credit of the applicant was also important in that regard, Mr Stockley said. He submitted that what Mr Carbone told the hospital was wrong, and accordingly as he bore the onus of proof, his evidence about his relationship with Mr Gabrielli was unreliable. Mr Stockley said Mr Carbone’s evidence should be treated with caution about things he now says.
Mr Stockley said that his position acting for both the first and third respondent was that a factual finding was needed and then the first respondent would seek indemnity from either the second respondent or the third respondent pursuant to s 20(4) of the 1987 Act.
Mr Stockley explained his situation as representative of both the Nominal Insurer and the s 20 Principal Employer, noting that the Nominal Insurer will be able to seek an indemnity on the findings from the Commission from the uninsured respondent or the s 20 principal.
Mr Stockley addressed the claim for lump sum compensation for the back, as the left upper extremity injury had been accepted. He said the claim to the back was disputed because, firstly, there was no contemporaneous record of injury to the back and secondly there was no lumbar pathology that had been shown to have been caused by the fall off the ladder.
Mr Stockley referred to the notes from the Royal North Shore Hospital which noted the fracture of the radius and scaphoid, but there was no reference to any complaint about the back.
Mr Stockley referred to the clinical notes from the general practitioner Dr Weerabaddana which showed on 19 November 2019 that Mr Carbone was complaining about a lumbar back condition which he had experienced some months before. An xray of the back was taken on 4 December 2019 and it was noted that Mr Carbone was complaining about pain.
Following the subject injury Dr Weerabaddana was consulted by Mr Carbone on 9 June 2020 and 22 June 2020. On neither occasion did he complain about any back symptoms.
The first appearance in the clinical notes Mr Stockley said appeared on 2 September 2020. Mr Stockley acknowledged settled authority that a fact finder has to exercise some caution as to what appears in clinical records, but nonetheless he submitted that these records were of a positive nature and could be accepted – particularly as Dr Weerabaddana had been careful enough to use a translator and therefore the complaints could be seen as reliable and a positive record of prior back complaints.
Mr Stockley submitted that equally the opinion of Dr Steele should be approached carefully. Dr Steele was the orthopaedic surgeon that was treating Mr Carbone, and busy medical practitioners who are treating patients tend to concentrate on that aspect of management rather than worrying about causation.
As far as the pathology investigations was concerned, Mr Stockley noted there were three MRI scans taken. Mr Stockley submitted that there was some divergence between these investigations and medical commentary was needed to explain the significance or lack of same of these scans.
He submitted that Dr Parkinson’s comments which doubted the results of the 25 November 2021 scan was the height of the applicant’s case.
The applicant reported longstanding lumbar symptoms and the investigations relied on were equivocal, Mr Stockley said. No specialist doctor had examined all three MRI scans. He said that compared with the lack of any contemporaneous complaint, or any complaint shortly after the accident, the scans were not persuasive. He also stressed that there had in fact been a back condition prior to the subject accident.
Mr Stockley referred to Dr Rowe’s opinion. Dr Rowe mentioned that it was one or two months after the subject injury that Mr Carbone first complained about his back, which Mr Stockley said was broadly consistent with the medical records. Dr Rowe had seen the MRI of 25 November 2021 and stated there was no nerve compromise.
As far as the medico-legal expert relied on by the applicant, Dr Conrad, Mr Stockley submitted that there was not much comment about the disc injury.
Dr Conrad had given 5% and although he referred to the MRI of 4 March 2021, his report was ambiguous as to whether he had seen the film itself. Mr Stockley submitted that Dr Conrad did not give a clear account of causation and that there was no history given to Dr Conrad of early back complaints either in Sydney or in Italy. In all those circumstances Mr Stockley submitted that Dr Rowe’s opinion was acceptable, persuasive and consistent.
I was referred to Mr Carbone’s statement that he had back pain within seconds of falling to the ground, but that had to be viewed in the face of the evidence that he did not mention it to anyone, Mr Stockley said.
Accordingly only the left upper extremity should be referred for assessment.

Mr Nicholson in reply

Mr Nicholson sought to re-open his case to explain the various entries in the bank statements that had been supplied. The record would show that this application was refused in a short ex tempore decision.
Mr Nicholson’s submissions in reply are recorded, and there is no utility in repeating them, as I have incorporated many of them in my reasons.

DISCUSSION

Section 20 of the 1987 Act provides relevantly:
“(1)    If any person (in this section referred to as ‘the principal’) in the course of or for the purposes of the person's trade or business, contracts with any other person (in this section referred to as ‘the contractor’) for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal is, if the contractor does not have a policy of insurance or is not a self-insurer at the time a worker employed in the execution of the work receives an injury, liable to pay any compensation under this Act which the principal would have been liable to pay if that worker had been immediately employed by the principal.
(2)    If compensation is claimed from or proceedings are taken against the principal in respect of any such injury, then, in the application of this Act, reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the worker under the employer by whom the worker is immediately employed.
(3)    …
(4)     If the principal is liable to pay compensation under this section, the principal is entitled to be indemnified by any person who would have been liable to pay compensation to the worker independently of this section, and all questions as to the right to and amount of any such indemnity shall in default of agreement be determined by the Commission.”

Schedule 2.2 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) provides relevantly:
“(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 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.”
Section 140 of the 1987 Act provides relevantly:
“(1) A claim under this Division may be made against the Nominal Insurer by any person who considers he or she has a claim against an employer for compensation under this Act or work injury damages in respect of an injury to a worker, if-
(a) the employer is uninsured, ….”
Section 145 of the 1987 Act provides for the mechanism by which the Nominal Insurer is able to bring proceedings against an uninsured employer.
There is, not unusually in cases of this nature, a certain amount of common ground in Mr Carbone’s case. He is a 46-year-old Italian man who arrived in Australia in 2019. He has no English. He obtained work for Portos Painting as can be seen from the credits in his bank statement between 5 October 2019 and 5 March 2020. He also did other jobs, and whilst working for a Frederico Buongiorno, met Mr Gabrielli.
Mr Carbone obtained Mr Gabrielli’s phone number and did some painting jobs with him. One of those jobs was at 5 Cabramatta Rd, Mosman. The only invoice records available show that Jetcharm, the head contractor for the works at 5 Cabramatta Rd Mosman, paid Mr Gabrielli’s business “Mr Colour Painting and Decorating” over the following periods:[26]
(a)    8 October 2019 to 11 October 2019;
(b)    25 November 2019;
(c)    8 December 2019, although the invoice does not describe any work done;
(d)    16-19 December 2019;
(e)    6-9 April 2020;
(f)    14-17 April and 21 April 2020, and
(g)    27 April to 1 May 2020.
[26] Second respondent’s Reply ascending from page 48.
On 29 April 2020 Mr Carbone suffered his accident. He fell from a ladder about three to four metres and was taken to RNSH by Mr Gabrielli. The hospital notes recorded that Mr Carbone had suffered a fractured wrist when he “fell from a standing height.” The social history noted “not currently working due to Covid.” On 22 May 2020, when Mr Carbone presented at Royal Prince Alfred Hospital with a history of “four days of headspinning,” the notes read “fall with headstrike at home.”
I have included as common ground that Mr Carbone fell from a ladder, as Mr Gabrielli stated that Mr Carbone told him that. (Mr Gabrielli’s evidence spoke of a fall from scaffolding, which assertion will be considered presently.)
All counsel agreed that there was an issue regarding credit which needed to be determined, as it informed the intentions of the parties when the contract was entered into. There was a conflict between the evidence of Mr Carbone and Mr Gabrielli that was irreconcilable, pertaining to a specific conversation that occurred whilst Mr Gabrielli was driving Mr Carbone to the hospital after the accident.
Up to that point, the objective evidence regarding the contract’s formation was said by the respondents to be unclear. Before turning to the facts it is convenient to consider the state of the law relating to the question of whether a person was a worker.

Legal issues

As indicated, the parties referred to the UPVC authority,[27] a decision by DP Michael Snell, as authority for their propositions. However, DP Elizabeth Wood in a later decision, Askew v Donald Noel Spence t/as Don’s Guttering and Roofing Service[28] considered the same authorities as DP Snell. (UPVC was issued on 14 March 2023, and Askew on 22 March 2023.) Both decisions were ad idem as to the effect of the relevant authorities, particularly recent High Court authority. DP Wood in Askew said from [85]:
“I do not agree with the submissions of the parties that the High Court decisions have no direct application to this case. The relevant principles established by those authorities were helpfully summarised by Wigney J in JMC Pty Limited v Commissioner of Taxation^[29]as follows:
‘The fundamental principles established by the judgments of the majority of the justices in Personnel Contracting[30] and Jamsek[31] may be shortly summarised as follows’.
First, where the rights and duties of the parties are comprehensively committed to a written contract, the legal rights and obligations established by the contract are decisive of the character of the relationship provided that the validity of the contract has not been challenged as a sham, or that the terms of the contract have not been varied, waived or are subject to an estoppel: Personnel Contracting at [43], [44], [47], [59] (Kiefel CJ, Keane and Edelman JJ), [172] (Gordon J, Steward J relevantly agreeing at [203]). The task is to construe and characterise the contract made between the parties at the time it was entered into: Personnel Contracting at [174] (Gordon J).
Second, in order to ascertain the relevant legal rights and obligations, the contract of employment must be construed in accordance with the established principles of contractual interpretation: Personnel Contracting at [60] (Kiefel CJ, Keane and Edelman JJ), [124] (Gageler and Gleeson JJ), [173] (Gordon J). In that respect, regard may be had to the circumstances surrounding the making of the contract, as well as to events and circumstances external to the contract which are objective, known to the parties at the time of contracting and which assist in identifying the purpose or object of the contract: Personnel Contracting at [174]-[175] (Gordon J); Jamsek at [61] (Kiefel CJ, Keane and Edelman JJ), referring to Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352. The nature of the specific job that the putative employee applied for and the nature and extent of any tools or equipment they have to supply for that job may also be relevant: Personnel Contracting at [175] (Gordon J). It is, however, generally not legitimate to use in aid of the construction of a contract anything which the parties said or did after it was made: Personnel Contracting at [176] (Gordon J).
Third, and flowing from the first two principles, the characterisation of the relationship between the parties is not affected by circumstances, facts or occurrences arising between the parties that have no bearing on their legalrights: Personnel Contracting at [44] (Kiefel CJ, Keane and Edelman JJ), [173]-[178] (Gordon J); Jamsek at [109] (Gordon and Steward JJ). A ‘wide-ranging review of the entire history of the parties’ dealings’ is neither necessary nor appropriate: Personnel Contracting at [59] (Kiefel CJ, Keane and Edelman JJ); see also [185]-[189] (Gordon J). For a ‘matter to bear upon the ultimate characterisation of a relationship, it must be concerned with the rights and duties established by the parties’ contract, and not simply an aspect of how the parties’ relationship has come to play out in practice but bearing no necessary connection to the contractual obligations of the parties’…(authority omitted)
It follows that the fact that the parties’ subsequent conduct may not have precisely aligned with their contractual rights and obligations, or the fact that a particular contractual right may have never been exercised or utilised, will generally be irrelevant when it comes to characterising the relationship. That is so unless the manner in which the parties conducted themselves after entering into the contract was such as to establish that the contract was a sham, or that the contract had been varied, or that certain rights under the contract were subject to an estoppel.
Fourth, the contractual provisions that may be relevant in determining the nature of the relationship include, but are not limited to, those that deal with the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work, the provision for holidays, the deduction of income tax, the delegation of work and the right to exercise direction and control: Personnel Contracting at [113] (Gageler and Gleeson JJ); [174] (Gordon J), referring to Brodribb at 24 (Mason J); see also 36-37 (Wilson and Dawson JJ).
Fifth, the characterisation of the relationship as one of service or employment involving an employer and employee, as opposed to a relationship involving an independent contractor providing services to a principal, often hinges on two considerations. The first consideration is the extent to which the putative employer has the right to control how, where and when the putative employee performs the work: Personnel Contracting at [73]-[74] (Kiefel CJ, Keane and Edelman JJ); [113] (Gageler and Gleeson JJ); see also Brodribb at 24 (Mason J) and 36-37 (Wilson and Dawson JJ). The second is the extent to which the putative employee can be seen to work in his or her own business, as distinct from the business of the putative employer – the so-called ‘own business/employer’s business’ dichotomy: Personnel Contracting at [36]-[39] (Kiefel CJ, Keane and Edelman JJ); [113] (Gageler and Gleeson JJ); cf [180]-[183] (Gordon J). Neither of those considerations are determinative and both involve questions of degree.”
[27] UPVC Window Solutions Pty Ltd v Workers Compensation Nominal Insurer (icare) [2023] NSWPICPD 11.
[28] [2023] NSWPICPD 13.
[29] [2022] FCA 750.
[30] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1.
[31] ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 .
Thus, a wide ranging review of the entire history of the parties’ dealing is not appropriate unless it was concerned with the rights and duties established by their contract, and not simply an aspect of how their relationship has come to play out in practice without any necessary connection with the contractual obligations of the parties.
In neither the present case, UPVC, nor Askew were the terms of the contract written. In UPVC DP Snell cited the plurality in Personal Contracting at [115]. DP Snell said:
115. “…The passage at [61] said:
‘The foregoing should not be taken to suggest that it is not appropriate, in the characterisation of a relationship as one of employment or of principal and independent contractor, to consider ‘the totality of the relationship between the parties’ by reference to the various indicia of employment that have been identified in the authorities. What must be appreciated, however, is that in a case such as the present, for a matter to bear upon the ultimate characterisation of a relationship, it must be concerned with the rights and duties established by the parties’ contract, and not simply an aspect of how the parties’ relationship has come to play out in practice but bearing no necessary connection to the contractual obligations of the parties’.” (excluding footnotes)
After considering the submissions and Member Catherine MacDonald’s reasons, DP Snell then said from [122]:
“122. There were no written terms. The Member’s reasons …were consistent with her considering whether the indicia could be identified by reference to the oral contract between the parties. There was a relative paucity of such evidence, particularly in light of the Member’s credit finding regarding [the insured]. This part of the reasons was consistent with the Member considering the identification of terms by reference to conduct.
123. Consistent with the reasons of Gordon J at [190] of Personnel Contracting, ‘recourse to conduct may be necessary’ to identify ‘the contractual terms that were agreed’. In relation to the identification of such terms, ‘[s]ome terms may be inferred from the evidence of a course of dealing between the parties’, ‘[s]ome terms may be implied by established custom or usage’, and ‘[o]ther terms may satisfy the criterion of being so obvious that they go without saying’. [T]he question is whether the particular term is ‘necessary for the reasonable or effective operation of the contract in the circumstances of the case’. Additionally, it is appropriate to have regard to the passage of Personnel Contracting at [61] (set out at [115] above).”

Relevant issues

Bearing in mind those expositions of the present state of the law, I turn to the facts of this case.

The effect of the texts

In the first place, Mr Epstein’s survey of the entire history of the relationship between Mr Gabrielli and Mr Carbone needed, in conformance with the above authority, show that the relationship he described had a necessary connection to the contractual obligations of the parties. The relevant contract was the painting of a part of the premises at 5 Cabramatta Road Mosman, at which Mr Carbone said he worked from 20-24 April 2020 and 27-29 April 2020.
As indicated above, Mr Gabrielli’s business ‘Mr Colour Painting and Decorating’ had been contracted by Jetcharm to do painting work at that address on five separate occasions since 8 October 2019 before 14 April 2020. There is a discrepancy in that Jetcharm advised that work was done between 14 and 17 April 2020 and again on 21 April 2020, whereas Mr Carbone alleged he worked between 20-24 April 2020. Nothing turns on that inconsistency, as in any event Mr Carbone was not working for the whole duration of the contract, but only in the week before and during the week of his injury.
Mr Epstein placed great store in the content of the text messages contained in his client’s evidence. However, the statement by Mr Gabrielli was difficult to follow, in that he adopted the practice of making a general assertion of fact and referring to the texts, which he annexed in a separate part of his evidence, as support.
Thus, whilst Mr Gabrielli said that the texts from 28 March 2020 to 14 April 2020 showed that “Mr Carbone asked me several times to go into business together. Details of this are set out in text messages dated 28 March 2020 to 10 April 2020,” the texts themselves evinced no such thing. They spoke of meetings, which demonstrated at best that a friendship had developed between Mr Carbone and Mr Gabrielli, but they gave no intimation that the subject of the meetings had been a business proposition. The texts generally showed a pattern of communication covering everything from Covid to birthdays amidst the directions Mr Gabrielli was giving to Mr Carbone as to what time various jobs commenced and where they were.
Further, the relevance of Mr Gabrielli’s evidence concerning the enquiries made of him by Mr Carbone in February and March 2020 is somewhat obtuse, bearing in mind that it had to have some connection with the contractual obligation of the parties in the agreement to paint 5 Cabramatta Rd Mosman.
The enquiries made by Mr Carbone concerned a painting job at Newtown, the subject of the text of 10 February 2020. Whilst Mr Carbone was seeking advice from Mr Gabrielli about the amount of time required for the job and what should be charged, the evidence also shows that Mr Carbone was then receiving weekly payments from Portos Painting. Mr Gabrielli’s language – “can we get everywhere, or do we need a ladder?” – implies that Mr Carbone was scouting for work on behalf of Mr Gabrielli and it may be that, if the work had been obtained, there might have been a contract which could have involved Mr Carbone as an independent contractor. However such speculation constitutes no basis upon which to make any findings about the subject contract at 5 Cabramatta Rd Mosman.
Similarly, on 11 February 2020 Mr Carbone had found another job “listed.” It is likely that Mr Carbone was consulting a website that advertised painting jobs. The highest the texts take Mr Epstein’s contentions is that Mr Carbone was looking to find work on behalf of Mr Gabrielli. Again, Mr Carbone’s bank records indicated that he was working for Portos Painting in February 2020, and the phrase “I thought so; too big for us” from Mr Gabrielli confirms that impression. Again, nothing came of these enquiries and no inference can be drawn regarding the subject contract.
As indicated, the texts of 15 March 2020, 16 March 2020 and 25 March 2020 were similar. The text of 16 March 2020 concerned an argument Mr Carbone was having with his then employer “the Spanish Beast”[32] regarding his rights as an employee.
[32] Second respondent’s Reply page 10.
The text of 25 March 2020 whereby Mr Carbone said that he “had taken a job but don’t know how much to ask” is perhaps an indication that Mr Carbone was looking to find work on his own account, but again takes the matter no further. It would appear that Mr Carbone was doing other work from his text of 28 March 2020 and that he wanted to meet Mr Gabrielli to “explain everything.” An inference is available that “everything” was a reference to the job mentioned on 25 March 2020, but that does not assist to demonstrate any relevance to the subject contract.
Mr Epstein was in effect basing his submissions on speculation that the texts could be interpreted as part of an ongoing business relationship. There was no supporting evidence in the texts for that proposition – they simply demonstrated an aspect of how their relationship had come to play out in practice, but without any connection to their contractual obligations regarding the contract at 5 Cabramatta Rd Mosman.

The bank statements

Mr Epstein also relied on the content of Mr Carbone’s bank statement to suggest that it constituted evidence that Mr Carbone was conducting his business as an independent contractor. This proposition also was not without its difficulties.
It can be seen that Mr Carbone was obtaining a regular income from his work with Portos Painting. He said that he did not have much experience when he first met Mr Gabrielli, but his work with Portos Painting gave him a little experience with which to be subjected to a work trial by Mr Gabrielli. It was not suggested that Mr Carbine had been working as anything but an employee by Portos Painting. Mr Carbone’s bank statements showed that he was employed by Portos Painting on a regular basis from 5 October 2019 to 19 March 2020.
This evidence also confirms Mr Epstein’s suggestion that Mr Carbone did indeed have other work during the term of the contract between ‘Mr Colour Painting and Decorating’ and Jetcharm for 5 Cabramatta Rd Mosman. However, he overlooked, with respect, the not insignificant fact that Mr Carbone only worked for Mr Gabrielli at the end of that contract – Mr Gabrielli had been working on that contract for about 18 days before he invited Mr Carbone to work there. This detail suggested that Mr Gabrielli had control of the use of Mr Carbone’s labour – and indeed that of the other workers on the site such as: “Juan” and “Alejandro.” Their labour was to assist Mr Gabrielli’s business in order to complete various aspects of his contract with Jetcharm.
The bank statements were also contemporaneous evidence that tended to support Mr Carbone’s version of the conversation on the way to the hospital with Mr Gabrielli. The first time Mr Carbone received Centrelink benefits (in the form of a jobseeker payment) was shown to be on 23 April 2020, a week before his injury, and the month after he had ceased his employment with Portos Painting. When he was unable to work he received $1,131.38 on 22 may 2020, 5 June 2020 and 19 June 2020. The amount he was paid on 23 April was $581.28 which suggests that he had declared his income and received a pro rata payment, to which, as he said, he was legally entitled.
Mr Epstein’s submissions that the credits to Mr Carbone’s account suggested income from other work he was doing may be dismissed, with respect. To have any probative weight Mr Epstein needed to show both that the deposits were in fact received for work Mr Carbone had been doing, and that the work he was doing was pursuant to a contract wherein he was working as an independent contractor. As indicated, the deposits were each for a small amount, and from the same people – Marco Columbo, G De Bartolo and Monica Di Costa. Some were by wire transfer, and others were recorded by the bank as being a “gift.” The deposits might more probably have been from members of the Italian community who were assisting Mr Carbone as he had only recently arrived in the country, was single, and could not speak English. The amounts credited were hardly in keeping with either wages or contractual income, and the submission may be put to one side as being speculative.

Indicia

This being an oral contract, it is appropriate to consider the totality of the relationship by reference to the various indicia of employment that have been identified by the authorities. The primary indicium relates to control. DP Snell in UPVC said at [163]:
“163. …[T]he plurality in Personnel Contracting said:
‘... this Court in Stevens and indeed in Zuijs [v Wirth Brothers Pty Ltd] itself,emphasised that it is the right of a person to control the work of the other, rather than the detail of the actual exercise of control, which serves to indicate that a relationship is one of employer and employee’.”
(Citations omitted.)

Supervision

It is common ground that Mr Carbone worked unsupervised from time to time. The jobs at Manly and Freshwater appear to have been done unsupervised. However, the text messages lodged by Mr Gabrielli demonstrate that Mr Gabrielli met Mr Carbone at the various addresses to ensure access.
It was alleged that because Mr Carbone was left to work unsupervised, it could be inferred that he was an independent contractor. However, Mr Gabrielli did not allege that fact. As indicated, he left Mr Carbone unsupervised “because he could complete his work and skills.” I infer that Mr Gabrielli meant that he had enough faith in Mr Carbone’s ability to complete his work in a satisfactory way that he did not feel the need to supervise him.
Mr Gabrielli maintained that for each of the jobs he worked with Mr Carbone, he would give Mr Carbone the key to the property. The Freshwater address was vacant, and Mr Gabrielli claimed that Mr Carbone carried his own “tools and brushes that he carried in a bag.” Mr Gabrielli claimed that Mr Carbone said he would send through an invoice, but asked to be paid in cash in the meantime, as he needed the money. Mr Gabrielli said he agreed “because I felt sorry for him.”
Mr Carbone denied that he was given the keys to the Freshwater property, alleging that Mr Gabrielli was always present whenever he accessed the property. It may be that there was a misunderstanding by Mr Carbone, as the text messages showed that in respect of both the Freshwater and Manly contracts arrangements were made for him to meet Mr Gabrielli at the respective addresses, where Mr Carbone was left to work independently.
I do not regard the fact that Mr Gabrielli was able to leave Mr Carbone working independently and unsupervised as being determinative. Mr Carbone had proved his reliability and skill level sufficiently that he could be trusted to work unsupervised, but was not independent as to when he commenced and finished work, nor was he able to access the Freshwater or Manly property without Mr Gabrielli being present. The control element is thus sufficiently strong to suggest an employment contract – particularly bearing in mind Mr Carbone’s situation as a newly arrived Italian gentleman who could not speak English. Mr Gabrielli’s explanation more indicative of an employer’s reasons for leaving a competent employee to do his work. At its highest it is a neutral indicium.

Tools

There was some doubt about what Mr Gabrielli meant when he stated that Mr Carbone bought his own brushes and tools. Mr Carbone said that he brought his brushes, which he did because other painters did not like to lend theirs. He said that he did not bring any tools. Mr Gabrielli alleged that Mr Carbone did bring tools, but Mr Epstein was unable to assist in clarifying what those tools were. Mr Gabrielli admitted that either Jetcharm bought the paint needed, or Mr Gabrielli bought it and was reimbursed by Jetcharm. There was no suggestion by Mr Gabrielli that Mr Carbone was responsible for the supply of the paint. Mr Carbone said that as far as he knew, Mr Gabrielli provided all the painting equipment used on site, including he thought, the ladder from which he fell. The lack of detail from Mr Gabrielli would in any event suggest that he was to provide the painting equipment, but insofar as there is a conflict between the two protagonists, the resolution of the credit issue is determinative, as will be seen.
Mr Carbone listed the tools he said were provided by Mr Gabrielli:
·        paint;
·        ladders;
·        paint buckets;
·        scotch tape;
·        gap filler;
·        canvas floor covers;
·        rollers, and
·        extension poles for rollers.

ABN and business cards

Mr Carbone conceded that he had taken out an ABN, and had business cards printed. He said that he was not asked by Mr Gabrielli whether he had an ABN. Mr Gabrielli did not claim he had, but said that he checked online after Mr Carbone said he had his own painting business. Mr Carbone said he had never given his ABN or his business card to anyone. He had put his name on Gumtree but had not obtained any work, although there had been a few contacts.

Payment

The method of pay was common ground. Mr Carbone had been paid cash at the rate of $24 per hour. Mr Gabrielli said that he would invoice Jetcharm, which would pay by EFT. As indicated, Mr Gabrielli produced the relevant invoices. Mr Gabrielli said that Mr Carbone never sent any invoices.
The evidence shows that Mr Carbone was paid in cash on each of the jobs he worked for Mr Gabrielli. Whilst therefore it follows that no leave entitlements, holiday pay or superannuation benefits were available to Mr Carbone, thus suggesting a contract for services, nonetheless payment of cash for simple labouring jobs such as painting is not uncommon, and in the light of the control exercised in the relationship, is consistent in these circumstances with an employment contract.

Uniform

There was no suggestion that Mr Carbone was required to wear a uniform, and he worked in his work clothes and tennis shoes.

Control and hours

Mr Carbone stated that each time he worked for Mr Gabrielli, Mr Gabrielli arranged the jobs separately. Mr Carbone would work set hours stipulated by Mr Gabrielli – usually beginning at 7.00am and finishing at 3.00pm. He was told where to paint, and Mr Gabrielli supplied the ladders, rollers, extension roller poles and buckets. On each job Mr Carbone worked for an agreed cash payment of $24 per hour. Mr Epstein claimed that the set hours were those dictated by the quote for the job, and thus presumably would have applied regardless of the true nature if the contract.
Mr Carbone said that at each of the jobs he was working on for Mr Gabrielli – Freshwater, Manly and Mosman – he understood he was being paid $24 per hour for his labour.
The evidence established that the work done by Mr Carbone was performed at the behest of Mr Gabrielli. Mr Gabrielli stated that he had a list of painters he would call on when he obtained a painting job, or he would find painters advertising of Facebook or Gumtree. Mr Gabrielli was a sole trader doing mainly commercial and domestic painting contracts. His arrangement with Jetcharm reflected his business practice, which was to invoice the head contractor and pay the people he used in cash. He had been in a business relationship with Jetcharm since about 2014.
Although Mr Gabrielli also used the services of at least two other painters on the subject contract – the said Juan and Alejandro – he was silent as to how he paid them, and no invoices from them were in evidence. I have some reservations therefore about Mr Gabrielli’s assertion that he paid cash to Mr Carbone because “he felt sorry for him”.

Entrepreneur test

From that overview of the relevant indicia it can be seen that Mr Gabrielli retained the essential control of those painters he used to help him complete the contracts he obtained – including Mr Carbone. He would direct Mr Carbone to the address at which the work was to be done, and he would supply the tools needed to complete the work. I do not regard the fact that Mr Carbone brought his own paint brushes as a relevant issue, as I accept that painters, whether employees or independent contractors would prefer to use their own brushes. There is no element within these indicia of any benefit accruing to Mr Carbone. The fact that Mr Gabrielli hired Mr Carbone to perform a part of the 5 Cabramatta Mosman contract (and presumably did so with the other workers at the site) meant that Mr Gabrielli’s contract with Jetcharm could be completed whilst he was doing other things, and the labour by Mr Carbone would further the goodwill between Jetcharm and Mr Gabrielli in their contractual relationship which had been enduring since 2014. The contract was accordingly for the benefit of Mr Gabrielli.

An uneven relationship

An important consideration in the question of control was the fact that Mr Carbone, although he had visited Sydney for eight months or so in 2014, had only been living in Sydney since 2019, and does not understand English. It is highly improbable that he would therefore be working as painter as an independent contractor. I accept that he did not have extensive painting experience, and had to learn the basic etiquette such as being expected to use his own brushes. His inability to converse in English would have been a fundamental barrier to his ability to arrange contracts for himself. Indeed the attempts he made, as illustrated by the text messages, did not result in any success.
Leaving aside the question of whether Mr Carbone was making enquiries on his own account or for Mr Gabrielli, the Newtown job described in the text of 10 February 2020 did not appear to be accepted and the job for 270 new apartments referred to in the text of 11 February 2020 was clearly beyond Mr Carbone’s capacity, as he did not understand the basis on which to quote. Similarly with the job discussed in the text of 25 March 2020, Mr Carbone’s limitations in being able to conduct a business on his own account were also exposed. The texts were in Italian, but even so he did not know how much to charge, and did not understand what Mr Gabrielli was telling him.

The credit issue

However, Mr Stockley and Mr Epstein argued forcibly that Mr Carbone’s credit had been impugned and that, as he bore the onus of proof, his evidence about his relationship with Mr Gabrielli should be approached with caution.
This issue arose as a result of the conflicting versions of the conversation the two protagonists alleged occurred in Mr Gabrielli’s vehicle when Mr Carbone was being taken to hospital. In short, Mr Gabrielli alleged that Mr Carbone asked to be taken home to change his clothes because he did not wish to appear in hospital dressed in painting gear, as he was “on Centrelink.”
Mr Carbone’s version however was that Mr Gabrielli had suggested that he change before going to the hospital as Mr Gabrielli did not have workers compensation insurance and “he did not want the hospital to think I had been injured at work so that the hospital would not enquire as to the method of payment related to a workers compensation scheme.”

Evaluating conflicting evidence

The evaluation of conflicting evidence was considered in Fox v Percy[33] where Gleeson CJ, Gummow and Kirby J said at [31]:
“Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances [49]. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.”

Centrelink allegation untrue
[33] [2003] HCA 22.

The contemporary materials relevant to this issue are, as indicated above, the bank statements produced by Mr Carbone. They demonstrated that Mr Carbone first received a payment from Centrelink on 23 April 2020, at a time when he had ceased working for Portos Painting and six days prior to his injury. Mr Carbone had been doing some work for Mr Gabrielli over February 2020 at the Freshwater and Manly jobs, and indeed had begun working on the subject contract according to the Jetcharm invoices. The amount was for $581.20 and was paid pursuant to the jobseeker entitlements caused by the pandemic. Later payments following Mr Carbone’s injury were for $1,131.38 – and obtained through the first respondent. This evidence confirms Mr Carbone’s statement that he only received entitlements he was “legally entitled to when my income from work has been such as to not to prevent that entitlement.”
The objectively established facts were that Mr Gabrielli was uninsured and that Mr Carbone had been injured whilst working for him.
Whilst Mr Carbone did mislead the hospital by recording on 29 April 2020 that he had fallen from a “standing height” and that he was “not currently working due to Covid,” and on 22 May 2020 that he had fallen “with headstrike at home,” the most probable reason for his doing so was that he was complying with Mr Gabrielli’s request not to implicate him because he had no workers compensation insurance.
The apparent logic of events thus becomes quite obvious. There was no reason for Mr Carbone to mislead the Hospital as he had not unlawfully been receiving Centrelink benefits. Moreover, it is improbable that a hospital had any interest in whether a patient was illegally receiving Centrelink benefits in any event. It was, however, of considerable interest to a hospital as to whether the workers compensation system was involved, as it was relevant to how it charged for its services.

Conclusions

Two principal conclusions follow. Firstly, it was Mr Gabrielli who was deliberately intending to mislead the Commission, and it is accordingly Mr Gabrielli’s evidence that must be approached with caution.
Secondly, it is conclusive evidence, if such were needed, that confirms the high degree of control Mr Gabrielli exerted over Mr Carbone. That Mr Carbone would, on two separate occasions, support Mr Gabrielli by deliberately lying to protect him, is eloquent testimony to Mr Gabrielli’s dominance in the contractual relationship, and a tacir admission that Mr Gabrielli was aware that the nature of his contract with Mr Carbone was an employment contract.
Further, Mr Gabrielli’s gratuitous attempt to cast doubt on the circumstances of the accident also damaged his credit. He attempted to allege that Mr Carbone had been climbing scaffolding in a different area of the jobsite when he fell, even as he acknowledged that Mr Carbone had told him he fell off a ladder. That version of events was exclusive to Mr Gabrielli: it had not been suggested elsewhere in the evidence, and again was an attempt to mislead.

WORKER

I am accordingly satisfied that Mr Carbone was employed by Mr Gabrielli pursuant to a contract of employment. The purpose of the contract was to have Mr Carbone work to the benefit of Mr Gabrielli’s business.
It follows that either the first respondent or the third respondent have a right to indemnity from the first respondent, as it follows from these reasons that Jetcharm also becomes liable pursuant to s 20 of the 1987 Act. I have not been asked to make any orders in that regard.

THE MEDICAL ISSUE

The remaining issue pertains to Mr Carbone’s claim that he injured his lumbar spine in his fall.
Dr Weerabanna recorded a complaint of back pain on 19 November 2019, following which an x-ray was taken, the results of which were said to be “normal” in the next note of 4 December 2019. On 2 September 2020 Dr Weerabaddana noted a long history of backache, which had been investigated in Italy, and that Mr Carbone had been told he had disc problems.
Mr Carbone did not make any complaint of back pain to Royal North Shore Hospital, nor did he complain to Dr Weerabaddana on 9 June 2020 or 22 June 2020 – the first occasion being on 2 September 2020. Mr Stockley attached some significance to this lack of complaint, but in view of the seriousness of Mr Carbone’s injuries, this matter is of limited relevance. Mr Carbone had fallen between three and four metres, fractured his left wrist and come to surgery on 30 April 2020. He had hardware removed on 26 November 2020, but in the meantime reported to Royal Prince Alfred Hospital suffering from three days of Vertigo on 22 May 2020. It is not unusual for people who suffer a major trauma such as a three to four metre fall and who have serious injuries as Mr Carbone suffered to fail to complain of lesser symptoms.
Mr Carbone said he hurt his back in his statement of 22 June 2023, as well as his left wrist and the left side of his body.[34] At [29] he said he saw Dr Steel for severe back pain which he noticed “within seconds” of his fall. He gave a consistent history to all medical practitioners save Dr Rowe that he had injured his back in the fall. Dr Rowe on 17 December 2021 took a history of the development of back ache one to two months after the fall. That anomaly might have occurred due to translation difficulties as an interpreter was present at that consultation. In any event the histories taken by Dr Conrad (16 March 2021) and Dr Steel (25 February 2021) are earlier in point of time.
[34] At [22].
Mr Stockley also argued that there was no lumbar pathology that had been demonstrated as a result of the fall. I did not understand Mr Stockley to discount the fact that Mr Carbone had a history of back pain that pre-dated the injury, but rather that the late complaint of back pain on 2 September 2020 was equally attributable to the recurrence of that earlier symptomatology and accordingly was unconnected with the subject injury. He based that argument on the apparent conflicting expert reports regarding different MRI scans that were undertaken, which I have reproduced above in deference to his argument.
Mr Stockley submitted that there were three scans which showed some divergence from each other, and about which there had been no medical commentary. In fact there were four MRI scans – 4 March 2021, 2 September 2021, 25 November 2021 and 29 March 2022.
This is not a case in which a precise definition is required of the injury to be referred. Each scan noted some pathology and it will be a task for the Medical Assessor to properly assess the significance. I am satisfied that Mr Carbone suffered injury to his back as for the reasons I have discussed above I accept him as a witness of credit, notwithstanding his misleading the hospital. Further, the clinical notes from Dr Weerabaddana establish that Mr Carbone already suffered from back symptoms of long standing and it would be surprising if a fall such as he suffered did not at least aggravate that condition.
Accordingly,
(a)    The Commission finds:
(i)the applicant was employed by the first respondent at the time of his injury.
(ii)The first respondent was uninsured at the time.
(iii)The third respondent was a principal liable to pay compensation pursuant to s 20 of the Workers Compensation Act 1987.
(iv)The applicant injured his back in the subject injury of 29 April 2020.
(b)    The Commission orders:
(i)I remit this matter to the President for referral to a Medical Assessor for a whole person assessment on the following bases:
(a)Date of injury: 29 April 2020.
(b)Matters for assessment:
(i) left upper extremity (wrist).
(ii) Lumbar spine.
(iii) TEMSKI/scarring.
(c)Evidence:
(i) Application to Resolve a Dispute and attached documents.
(ii)Application to Admit Late Documents dated 12 October 2023.
(iii)First respondent’s Reply and attached documents.
(iv)Second respondent’s Reply and attached documents.
(v)Third respondent’s Reply and attached documents.

[2024] NSWPIC 42

2 February 2024