Dakeka v Workers Compensation Nominal Insurer

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Dakeka v Workers Compensation Nominal Insurer & Ors [2023] NSWPIC 246
APPLICANT:	Johni Masood Jirjees Dakeka
FIRST RESPONDENT:	Elena Removals Pty Ltd
SECOND RESPONDENT:	Not applicable
THIRD RESPONDENT:	Roni Yawela
FOURTH RESPONDENT:	Workers Compensation Nominal Insurer
Member:	John Isaksen
DATE OF DECISION:	29 May 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments and medical expenses for serious injury sustained by the worker as a result of a motor accident; worker claims he was employed by the first respondent or third respondent; in the alternative, worker claims that first respondent is liable to pay compensation pursuant to section 20 as the first respondent contracted with the third respondent to execute work for the first respondent; neither first respondent or third respondent were insured; reference to Attorney-General’s Department v O’Dwyer on the issue of worker; reference to Turner v Stewardson on the issue of deemed worker; reference to WorkCover Authority v Dependable Taxi Trucks and Couriers & Ors on the application of section 20; consideration of clause 4 of Schedule 3 of the 1987 Act and regulation 8F of the Workers Compensation Regulation 2016 in calculation of worker’s pre-injury average weekly earnings where worker had been continuously employed for less than four weeks; Held – worker worked under a contract of service for the third respondent and can also be regarded as a deemed worker for the third respondent at the time the worker sustained injury; the first respondent contracted with the third respondent for the execution by the third respondent of work undertaken by the first respondent when the worker sustained injury and the first respondent is therefore liable to make compensation benefits pursuant to section 20 because the third respondent was not insured; calculation of worker’s pre-injury average weekly earnings based upon the relevant modern award; the worker has had no current work capacity since he sustained injury on 1 December 2021 and award of weekly payments made accordingly; general order for the payment of medical expenses; the fourth respondent (iCare) to make payments of compensation to the worker from the Workers Compensation Insurance Fund.
determinations made:

The Commission determines:

The applicant was a worker who worked under a contract of service with the third respondent when the applicant sustained injury in the course of his employment with the third respondent on 1 December 2021.
The applicant did not work under a contract of service with the first respondent.
The applicant also meets the definition of a deemed worker within the meaning of cl 2 of Schedule 1 of the Workplace Management and Workers Compensation Act 1998 (the 1998 Act) whereby the applicant was taken to be employed by the third respondent when the applicant sustained injury on 1 December 2021.
The third respondent was not insured as required by the Workers Compensation Act 1987 (the 1987 Act) at the time of the applicant’s injury.
The first respondent contracted with the third respondent for the execution by the third respondent of work undertaken by the first respondent when the applicant received an injury on 1 December 2021 while employed by the third respondent in the execution of that work.
The first respondent is liable to pay compensation benefits to the applicant pursuant to s 20 (1) of the 1987 Act.
The first respondent was not insured as required by the 1987 Act at the time of the applicant’s injury.
The applicant has had no current work capacity since 1 December 2021.
The applicant has incurred medical expenses as a result of the injury he sustained on
1 December 2021.

The Commission orders:

The first respondent is to pay the applicant weekly payments of compensation as follows:
(a)    $818.30 per week from 1 December 2021 to 2 March 2022 pursuant to s 36 (1) of the 1987 Act;
(b)    $654.65 per week from 3 March 2022 to 31 March 2022 pursuant to s 37 (1) of the 1987 Act;
(c)    $666.70 per week from 1 April 2022 to 30 September 2022 pursuant to s 37 (1) of the 1987 Act;
(d)    $689.15 per week from 1 October 2022 to 31 March 2023 pursuant to s 37 (1) of the 1987 Act, and
(e)    $717.70 per week from 1 April 2023 to date and continuing pursuant to s 37 (1) of the 1987 Act.
The first respondent is to pay the cost of the applicant’s reasonably necessary medical expenses for treatment as a result of injury sustained by the applicant on 1 December 2021 pursuant to s 60 of the 1987 Act.
The fourth respondent is to pay compensation awarded against the first respondent from the Workers Compensation Insurance Fund under s 154D of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

The applicant, Johni Masood Jirjees Dakeka, sustained serious injuries when the third respondent, Roni Yawela, lost control of a truck that he was driving on the M1 motorway near Bar Point on 1 December 2021.
Mr Dakeka claims that he was returning to Sydney with Mr Yawela from a trip that they had undertaken to Byron Bay to unload household items, and that he had been engaged by
Mr Yawela to assist with this work and was to be paid for this work.
The injuries sustained by Mr Dakeka included a highly comminuted fracture of the right femur, a burst fracture of L4, pelvic fractures, multiple rib fractures and a left diaphragmatic hernia. Mr Dakeka required emergency surgery at Royal North Shore Hospital to repair the L4 fracture and fracture of the right femur. He remained at Royal North Shore Hospital until 31 December 2021 and spent a further 19 days in rehabilitation at Holroyd Private Hospital.
Mr Dakeka claims that he worked under a contract of service with Mr Yawela and that
Mr Yawela should pay weekly benefits of compensation and medical expenses to him as a result of the injuries he sustained on 1 December 2021.
Mr Yawela denies that he employed or otherwise engaged Mr Dakeka to provide labour in return for the payment of monies to Mr Dakeka.
In the alternative, Mr Dakeka claims that he worked under a contract of service for the first respondent, Elena Removals Pty Ltd (Elena Removals), who Mr Yawela was undertaking work for on the trip to and from Byron Bay, or that Elena Removals is liable to pay workers compensation benefits pursuant to s 20 of the Workers Compensation Act 1987 (the 1987 Act) on the basis that Elena Removals contracted with Mr Yawela for the execution of work undertaken by Mr Yawela, and Mr Yawela did not have a policy of workers compensation insurance.
The director of Elena Removals, Mazen Marakha, has said in a statement dated
14 February 2022 that Elena Removals does not have a workers compensation policy.
The fourth respondent, Workers Compensation Nominal Insurer, has been joined to these proceedings pursuant to s 140 of the 1987 Act.
The fourth respondent issued a dispute notice dated 21 July 2022 wherein the fourth respondent did not accept that Mr Dakeka was a worker or deemed worker for Mr Yawela.
The fourth respondent had previously issued notices on 3 February 2022 and 21 March 2022 wherein the fourth respondent did not accept that Mr Dakeka was a worker or deemed worker for Elena Removals.
Mr Dakeka claims that he has had no current work capacity since 1 December 2021.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant was a worker working under a contract of service with Roni Yawela or Elena Removals when he sustained injury on 1 December 2021 (s 4 of Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act));
(b)    whether the applicant was a deemed worker and therefore taken to be employed with Roni Yawela or Elena Removals when he sustained injury on
1 December 2021 (cl 2 of Schedule 1 of the 1998 Act);
(c) whether Elena Removals is liable to pay compensation pursuant to s 20 of the 1987 Act, and
(d)    the extent of the applicant’s incapacity for work as a result of the injury sustained on 1 December 2021 (ss 32A, 33, 36 and 37 of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

This matter was initially listed for conciliation and arbitration on 20 January 2023. Mr Young appeared for the applicant, instructed by Mr Purkiss. Mr Doak appeared for the fourth respondent, instructed by Mr Ainsworth. There was no appearance by or on behalf of Elena Removals or Roni Yawela.
Mr Gaitanis appeared for the second respondent, Quick and Easy Removals Pty Ltd. The applicant had worn a shirt with a logo for Quick and Easy Removals Pty Ltd when he had undertaken work with Mr Yawela. Mr Marakha states that Elena Removals “is contracted to Quick and Easy” and that the Byron Bay trip was for a Quick and Easy client. The applicant discontinued his claim against Quick and Easy Removals Pty Ltd and Mr Gaitanis was excused.
The matter could not otherwise proceed to a hearing on 20 January 2023 because of concerns regarding service of documents upon Elena Removals and Mr Yawela.
The matter was then listed for conciliation and arbitration on 23 March 2023. There was again no appearance by or on behalf of Elena Removals. However, Mr Yawela appeared and informed the Commission that he had only received the relevant material for this dispute in the last few days. An adjournment was allowed for Mr Yawela to obtain legal advice and a further conciliation and arbitration date was set for 17 May 2023.
There was again no appearance by Elena Removals on 17 May 2023. Mr Taleb, solicitor, appeared on behalf of Mr Yawela to seek an adjournment on the basis that Mr Taleb had only received the relevant material for this dispute in the last few days. Mr Young on behalf of the applicant objected to this application. Mr Doak on behalf of the fourth respondent neither consented nor opposed the application.
The application for adjournment was rejected. Mr Yawela had been given ample time to seek legal advice. I was also particularly mindful that the applicant has not received any weekly payments of compensation for almost 18 months and requires ongoing medical treatment for the serious injuries he sustained in the motor accident on 1 December 2020. Mr Taleb withdrew his appearance when his application for adjournment was rejected.
Submissions by the parties were completed on 17 May 2023. However, shortly after the completion of the hearing Mr Doak requested that a further amount of time be allowed for written submissions to be filed and served on the application of s 20 of the 1987 Act in relation to this dispute. The applicant provided his consent to this request and the following timetable was put in place:
“1. The fourth respondent is to file and serve written submissions on the application of section 20 of the Workers Compensation Act 1987 to this dispute by 5.00pm on Friday 19 May 2023.
2.      The applicant is to file and serve any written submissions in reply by 24 May 2023.
3.     The written submissions referred to in numbers 1 and 2 above are to be served on Roni Yawela.
4.     A written decision in this matter will be published after 24 May 2023.”

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the applicant on 6 December 2022;
(d)    Application to Admit Late Documents filed by the respondent on
16 January 2023;
(e)    Application to Admit Late Documents filed by the applicant on 3 March 2023;
(f)    Application to Admit Late Documents filed by the applicant on 13 March 2023;
(g)    Application to Admit Late Documents filed by the respondent on 21 March 2023;
(h)    Application to Admit Late Documents filed by the applicant on 18 April 2023;
(i)    Application to Admit Late Documents filed by the applicant on 11 May 2023, and
(j)    written submissions filed by the respondent on 18 May 2023.

Oral evidence

The applicant was given leave to cross examine Roni Yawela. The fourth respondent also was allowed to cross examine Mr Yawela.

The applicant’s evidence

Mr Dakeka has provided a statement dated 7 February 2022.
Mr Dakeka states that he migrated to Australia in August 2016. He states that he was the carer for his father until he started working for Elena Removals in early November 2021.
Mr Dakeka states that he had known Mr Yawela for about three years after meeting
Mr Yawela at a gym. Mr Dakeka states that Mr Yawela said that he drove a truck and was looking for someone to help carry and lift furniture.
Mr Dakeka states that he was told by Mr Yawela that he would be paid $25 per hour and there would be work for 40 to 60 hours per week. He states that he did not sign any employment contract. He states that he does not have an ABN.
Mr Dakeka states that he was employed with Elena Removals and identifies the owner of Elena Removals to be Mazen Marakha. Mr Dakeka states:
“I met with Mazen in my first week at work at the warehouse/storage in Greenacre. I cannot remember the exact name of the warehouse. Mazen came to me and Roni and Mazen introduced himself and asked if I worked with Roni. He also said he was the owner of Elena and Roni worked for him. I said yes, he has taken me on as his offsider to help with the removalist jobs.”
Mr Dakeka states that he cannot recall that there was any discussion about the status or details of his employment with either Mr Yawela or Mr Marakha.
Mr Dakeka states that he “went with Roni as a paid removalist offsider” and travelled twice to Melbourne, once to Queensland, and the rest of the time was in New South Wales. He states that he would only work when there were deliveries to be done and Mr Yawela would ring him and tell him the address where he needed to go to on the following day.
Mr Dakeka states that he cannot remember if Mr Yawela rang him or sent him a text message on 29 November 2021 for the job to travel to Byron Bay. He states that he left
Mr Yawela’s place at Fairfield Heights at around 6.00am on 30 November 2021. He states that Mr Yawela drove to a Seven Eleven store at Fairfield Heights to buy coffee. Mr Dakeka states that Mr Yawela withdrew $1,000 from the ATM and gave it to the applicant. Mr Dakeka states:
“He told me that the money was for the work I had done that week. He also told me that there would be more money to come representing the work over the coming days.”
At the time that Mr Dakeka made his statement, he states that the $1,000 was still in his wallet and with the police.
Mr Dakeka states that Mr Yawela then drove for about 45 minutes to a location where they both loaded household goods for two hours. He states that they then left the house to travel to Queensland.
Mr Dakeka states that they reached the location at about 8.00pm. He states that it took about two and a half hours to unload the truck. He states that they then departed for Sydney.
Mr Dakeka states that he was asleep in the truck when he heard a loud noise and he woke up three days later in Royal North Shore Hospital.
Mr Dakeka states that his father was rung by Mr Marakha after the accident and his father was told that Mr Marakha’s would send $2,500. He states that a person visited his father and handed his father $2,500 in cash.
Mr Dakeka has provided copies of text messages between himself and Mr Yawela which refer to Mr Yawela informing Mr Dakeka of work to be done, usually on the following day. Those messages are dated 12 November 2021, 16 November 2021, 18 November 2021,
20 November 2021, 21 November 2021 and 29 November 2021.
There are also copies of text messages between Mr Dakeka and Mr Yawela which refer to Mr Dakeka “coming” on 8 November 2021 and being “outside” on 11 November 2021,
22 November 2021 and 30 November 2021. The text message from Mr Dakeka on
30 November 2021 is the day when Mr Yawela and Mr Dakeka travelled to Byron Bay and is recorded as being delivered at 5.50am.
Mr Dakeka has provided the following photos:
(a)    Mr Yawela and himself sitting in a truck cabin and which is recorded as being on 4 November 2021 at West Wodonga, Victoria;
(b)    Mr Yawela and himself sitting in a truck cabin and which is recorded as being on 11 November 2021 at Bondi Beach;
(c)    Mr Yawela and himself and which is recorded as being on 17 November 2021 at Paddington and which depicts Mr Dakeka and Mr Yawela during a removalist job;
(d)    Mr Yawela and himself at the rear of a truck and which is recorded as being on 18 November 2021;
(e)    Mr Yawela, himself and another male all wearing orange shirts or singlets and which is recorded as being on 19 November 2021, and
(f)    Mr Yawela in a truck cabin and which is recorded as being on 30 November 2021 at Cooparabung.
Mr Dakeka states that the orange shirt which he was wearing in the photos dated
4 November 2021, 11 November 2021 and 17 November 2021 was a ‘Quick and Easy Removals’ uniform.
Mr Dakeka has provided documents from Quick and Easy Removals dated
4 November 2021 and 27 November 2021 which refer to jobs and include ‘Roni’ and ‘Maz’ in the details provided for those jobs.
There is an email from Brooke Rugendyke, Crash Investigator, New South Wales Police dated 17 August 2022 which states:
“I’ve just located records that indicate $1105 was returned to Masood Dakeka who was authorised to collect the property on behalf of your client.
There is no information regarding whether the cash was located in the wallet or separately - both are listed as being located in the vehicle, but no further detail is recorded.”

Other evidence

Roni Yawela has provided a statement dated 14 February 2022. He states that he did not require an interpreter to provide this statement.
Mr Yawela states that he is employed as a truck driver with Elena Removals. He also states that he is engaged as a contractor and has an ABN. He states that he drives a 2005 Isuzu 4.5 tonne truck.
Mr Yawela states that Mr Dakeka is his friend, and that he has known Mr Dakeka for two years because they go to the gym together. Mr Yawela states:
“Johni travelled with me for the first time on 30 November 2021 and I confirm that he has never travelled with me before.
I state that I took Johni to Byron Bay as a friend only for companionship and not as a trainee removalist.”
Mr Yawela states that he was given an instruction by text message from Mr Marakha to travel to Byron Bay. He states that on 30 November 2021 he went to a customer’s house at around 7.00am and packed the truck and came back to Fairfield. He states that at around 9.00am he rang Mr Dakeka to be at Mr Yawela’s house at Fairfield Heights. He states that they left Fairfield Heights for Byron Bay at about 9.00am.
Mr Yawela states that they reached Byron Bay at around 6.00pm and it took him 15 minutes to unload the truck at Byron Bay. He states that he then left straight away.
Mr Yawela states that the accident happened on the M1 motorway around the Gosford area at around 5.30am when the truck suddenly started going towards the left and he could not stop the truck and the truck hit a rail guard.
Mr Yawela was cross-examined at the hearing by Mr Young on behalf of Mr Dakeka and
Mr Doak on behalf of the fourth respondent.
Mr Yawela said that he did not understand all of the questions being asked of him when he provided his statement dated 14 February 2022 “because my language is not good.” However, he also said that he could understand the questions being asked of him by
Mr Young.
Mr Yawela conceded that Mr Dakeka had travelled with him in the truck two or three times before the Byron Bay trip, but it was only in the local area. He said that Mr Dakeka did help him, but he did not pay any money to Mr Dakeka. He said that in the past there were about 10 times when he travelled with a friend on removalist trips, including to Queensland and Victoria, but it was just to talk to that friend on the trip and he was not paid any money for doing this.

Mr Yawela confirmed that the mobile phone number listed in the text messages relied upon by Mr Dakeka was an old number that he used. He said that Mr Dakeka was not told the address of the job but only to travel to Mr Yawela’s house.
Mr Yawela denied giving $1,000 in cash to Mr Dakeka on the morning of 30 November 2021 or at all.
Mr Yawela said that Mr Dakeka had to wear an orange shirt whenever Mr Dakeka was with him for a job.
Mr Yawela said he did not own the truck which he drove. He said that he worked for Elena Removals and was paid by the hour for the jobs he did for Elena Removals.
On several occasions Mr Yawela said: “I am a worker”, and he asked why a worker would be paying another worker.
Mazen Marakha has provided a statement dated 14 February 2022. Mr Marakha states that he is the director of Elena Removals, located at 14 Ainslie Street, Fairfield West. He states: “Elena Removals is contracted to Quick and Easy and their office is in Greenacre.”
Mr Marakha states that the business did employ three truck drivers as contractors, one of whom was Roni Yawela. He states that Elena Removals does not have a workers compensation policy.
Mr Marakha states that he did not know Mr Dakeka before the accident on
1 December 2021, and he had not spoken to Mr Dakeka until 14 February 2022. He states that he did not employ Mr Dakeka in any capacity and did not engage him as a contractor.
Mr Marakha states that he gave Mr Yawela “directions for the job to pick up from a residential address from either Brighton-Le-Sands or Rockdale and drop off in Byron Bay.” He states that he does not have addresses for the Byron Bay job because the client was a “Quick and Easy client.” He states that he was not aware that Mr Dakeka was travelling to Byron Bay in the truck with Mr Yawela.
Mr Marakha denies the statement made by Mr Dakeka that he met Mr Dakeka at the warehouse/storage location at Greenacre and was told by Mr Dakeka that he worked with
Mr Yawela.
The Certificate of Insurance for third party property damage issued by NRMA Insurance during the time when the accident occurred names the insured as: “Elena Removals, ABN 71615675495 Mr Marakha.”

FINDINGS AND REASONS

Whether the applicant was a worker who entered into or worked under a contract of service with the first respondent or third respondent

Section 4 of the 1998 Act relevantly provides the definition of “worker” as:
“worker means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and where the contract is oral or in writing)…”
Until the recent High Court decisions of ZG Operations & Anor v Jamsek & Ors [2022] HCA 2 (Jamsek) and Construction, Forestry, Maritime, Mining and Energy Union v Personal Contracting Pty Ltd [2022] HCA 1 (Personal Contracting), the determination of whether an injured person who claims workers compensation is a worker involved a consideration of all relevant indicia in the relationship between the person claiming to be a worker and the entity which engages that person to provide his or her labour.
Although Jamsek and Personal Contracting involved written contracts, Goodman J in Attorney-General’s Department v O’Dwyer [2022] FCA 1183 (O’Dwyer) considered that the principles set out in those High Court decisions extends to contracts regarding any employment relationship that is only oral or partly written and partly oral. Goodman J identified the core principle of those High Court decisions at [33]:
“…the fundamental task – the ascertainment and construction of the terms of the legal rights and obligations of the parties, rather than an assessment of the history of the relationship between the parties throughout the life of the contract, including the manner of performance of the contract – remains the same regardless of the form of the contract in question.”
That analysis in O’Dwyer has been approved in the subsequent Presidential decisions of UPVC Window Solutions Pty Ltd v Workers Compensation Nominal Insurer (icare) [2023] NSWPICPD 11 (UPVC) and Askew v Donald Noel Spence t/as Don’s Guttering and Roofing Services [2023] NSWPICPD 13 (Askew).
If Mr Dakeka’s evidence is preferred and accepted over the evidence provided by Mr Yawela, the legal rights and obligations which flow from an acceptance of that evidence leads inextricably to a finding that Mr Dakeka was working under a contract of service with
Mr Yawela at the time he sustained injury on 1 December 2021.
Mr Dakeka’s evidence is that Mr Yawela offered to pay him $25 per hour to work for
Mr Yawela, that Mr Dakeka undertook several jobs at the direction and control of Mr Yawela during the month of November 2021 including trips to Victoria and Queensland, that
Mr Yawela would contact Mr Dakeka when his labour was required, and that Mr Dakeka was paid $1,000 by Mr Yawela on 30 November 2021 for work that Mr Dakeka had already done for Mr Yawela.
I prefer and accept the evidence provided by Mr Dakeka over the evidence of Mr Yawela. Firstly, Mr Dakeka has provided at least five photos that depict him with Mr Yawela from early November 2021, which is when Mr Dakeka states that his work as a removalist offsider commenced. I find that it can reasonably inferred from what is depicted in those photos that Mr Dakeka was working with Mr Yawela.
Secondly, the copies of the text messages provided by Mr Dakeka supports the evidence provided by him that he would be contacted the day before a job by Mr Yawela, and he would then let Mr Yawela know, by sending messages of “coming” or “outside”, on the day of the job that he was ready to commence work.
Thirdly, the claim made by Mr Dakeka that he was paid $1,000 on the morning of
30 November 2021 for work Mr Dakeka had already done that week, and that the money was kept in his wallet for the duration of the trip, is confirmed by the email from Ms Rugendyke from New South Wales Police. I do not consider that this evidence could have been reconstructed by Mr Dakeka because Mr Dakeka provides this evidence in his statement on 14 February 2022, and yet confirmation that $1,105 was returned to a person on behalf of
Mr Dakeka is not made until August 2022.
There are inconsistencies in parts of the evidence provided by Mr Yawela which are fundamental to the issue of whether Mr Dakeka was working under a contract of service for Mr Yawela at the time that Mr Dakeka sustained injury.
Mr Yawela states that the first time that Mr Dakeka travelled with him was on the Byron Bay trip. However, confronted with the photos and text messages provided by Mr Dakeka during cross examination, Mr Yawela conceded that Mr Dakeka had travelled with him before. Yet Mr Yawela said, even after providing that concession, that Mr Dakeka only travelled with him in the local area, whereas the photos identify at least one trip made by the two of them to Victoria on 4 November 2021.
Mr Yawela states that on 30 November 2021 he loaded the truck at about 7.00am, came back to Fairfield and then rang Mr Dakeka at about 9.00am for Mr Dakeka to be at his house at Fairfield Heights. However, the text messages from Mr Dakeka on 29 November 2021 record that Mr Dakeka was to meet at 5.50am, and on 30 November 2021 Mr Dakeka was indeed punctual with his message of: “Good morning Habibi I’m outside”, which is recorded as being sent at 5.50am. Mr Yawela conceded during cross examination that Mr Dakeka helped to both load and unload the truck for the Byron Bay trip.
Although Mr Yawela states that he did not require an interpreter to provide his statement dated 14 February 2022, I accept from the contents of that statement and his answers in cross examination that Mr Yawela has some difficulties with the English language.
Mr Yawela clearly had difficulty in understanding the term “companionship” when he was asked by Mr Young, even though that word is used by him in his statement to explain why
Mr Dakeka travelled with him to Byron Bay.
I accept Mr Yawela’s oral evidence that it took about one hour to unload the truck at Byron Bay and not 15 minutes as he had previously stated.
Nonetheless, there is no ambiguity in the evidence provided by Mr Yawela which is fundamental to the issue of whether Mr Dakeka was a worker, being whether Mr Dakeka had previously worked for Mr Yawela and was paid for that work, and whether Mr Dakeka undertook work at the direction and control of Mr Yawela on the Byron Bay trip and was to be paid for that work.
I have considered Mr Yawela’s evidence that Mr Dakeka only travelled with him as friend, just as Mr Yawela had done interstate trips with his own friends. I accept that this could be a reasonable explanation for why Mr Dakeka accompanied Mr Yawela on this trip.
However, while the text messages and photos which are in evidence do not reveal systematic engagement in work with Mr Yawela throughout November 2021, there are enough of those photos and text messages to be satisfied that Mr Dakeka was providing his labour for the benefit of Mr Yawela, in return for Mr Dakeka being remunerated for that labour, from early November 2021, and that the Byron Bay trip was part of this work being undertaken by Mr Dakeka at the direction and control of Mr Yawela.
From a review of the evidence, and for the reasons I have given, I am satisfied that
Mr Dakeka was working under a contract of service for Mr Yawela and thereby a worker within the meaning of s 4 of the 1998 Act when he sustained injury on 1 December 2021.
There is no evidence to support a finding that Mr Dakeka was working under a contract of service for Elena Removals. There is no evidence of any employment agreement between Mr Dakeka and Elena Removals. There is no evidence of Mr Dakeka being subject to any direction or control by Elena Removals.
There is no evidence of any payment of monies to Mr Dakeka by Elena Removals for the labour he provided during the month of November 2021. There is no evidence of any equipment or clothing being provided by Elena Removals to Mr Dakeka. The shirt that
Mr Dakeka was wearing bore the logo “Quick and Easy Removals”.
I therefore find that Mr Dakeka did not sustain an injury while in the course of employment with the first respondent.

Whether the applicant was a deemed worker pursuant to cl 2 of Schedule 1 of the 1998 Act

Clause 2 of Schedule 1 of the 1998 Act relevantly provides:
“(1) Where a contract—
(a)to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor's own name, or under a business or firm name), or
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.”
A predecessor to this clause was s 6 (3A) of the Workers’ Compensation Act 1926 (the 1926 Act). In Turner v Stewardson [1962] NSWR 137 (Turner), Evatt CJ, Herron and Collins JJ in the Full Court of the Supreme Court of New South Wales said of s 6 (3A) of the 1926 Act at [139]:
“Looked at broadly, the Legislature meant to provide that persons who are in business for themselves, and who systematically and regularly accept work to be done under contract, and who hold themselves out as open to be employed under contract, are expected to undertake the risk of injury and not rely for compensation upon the principal whose contract work they are performing at the moment of injury.”
There is no evidence that Mr Dakeka was in business for himself. He did not have an ABN. There are no documents in evidence which refer to any business being operated by
Mr Dakeka.
The evidence instead reveals that apart from the work that Mr Dakeka undertook for
Mr Yawela, Mr Dakeka was otherwise in receipt of a government pension.
I have provided my reasons to why I consider that Mr Dakeka was under the direction and control of Mr Yawela when Mr Dakeka sustained injury on 1 December 2021. Those findings, along with there being no evidence of Mr Dakeka systematically and regularly accepting work to be done under contract and who holds himself out as open to be employed under contract, means that Mr Dakeka also meets the definition of a deemed worker who was employed by Mr Yawela pursuant to cl 2 of Schedule 1 of the 1998 Act.

The application of s 20 of the 1987 Act

Section 20 of the 1987 Act relevantly provides:
“(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 all 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 calculate with reference to the earnings of the worker under the employer by whom the work is immediately employed.
…
(6)     This section does not apply in any case where the injury occurred elsewhere than on, in or about premises on which the principal has undertaken to execute the work or which otherwise are under the principal's control or management, but nothing in the foregoing affects the liability of the contractor under any other provision of this Act.”
The submissions made by Mr Young on behalf of Mr Dakeka concentrated primarily on whether his client was employed by Mr Yawela at the time his client sustained injury on
1 December 2021. That is understandable because without such a finding there would be no workers compensation benefits payable to Mr Dakeka at all. Mr Young did not address the application of s 20 to this dispute in any detail.
Mr Doak submits that it is open on the evidence for a finding to be made that Elena Removals contracted with Mr Yawela for Mr Yawela to execute work undertaken by the Elena Removals. However, Mr Doak observed that this has no practical effect upon his client because neither Mr Yawela nor Elena Removals are insured.
Mr Yawela states that he is employed as a truck driver with Elena Removals, but also that he is engaged as a contractor and has an ABN. In cross examination he said that he worked for Elena Removals and that he was paid by the hour for jobs he did for Elena Removals.
Mr Yawela states he was given an instruction by text message from Mr Marakha to travel to Byron Bay.
Mr Marakha states that Elena Removals is contracted to Quick and Easy, and that the Byron Bay job was for a Quick and Easy client.
Mr Yawela did not specifically state that he was not insured for workers compensation purposes. Neither Mr Young nor Mr Doak asked Mr Yawela if he was insured for workers compensation purposes. Mr Yawela did say that he did not employ anyone in a question asked by Mr Doak. Mr Doak’s written submissions filed on 18 May 2023 proceed on the basis that Mr Yawela was uninsured.
I am satisfied from the available evidence that Mr Yawela did not have workers compensation insurance at the time that Mr Dakeka sustained injury on 1 December 2021.
Workcover Authority of New South Wales v Dependable Taxi Trucks and Couriers (Sydney) Pty Ltd and Ors [1994] NSWCA 352; 10 NSWCCR 310 (Dependable Taxi Trucks) involved a worker who was injured while employed with Dependable Taxi Trucks, but at the premises of Rapid Metal Developments (RMD). In making a declaration that Rapid Metal Developments was to pay workers compensation benefits as required by s 20 of the 1987 Act, Priestley JA (with Meagher JA and Handley JA agreeing) said at [28-30]:
“… the evidence in general and in particular that of Mr Luff shows that the business relationship between RMD and Dependable involved Dependable doing things for RMD which should properly be analysed as being done pursuant to contract.”
In this dispute, Mr Marakha, the director of Elena Removals, had given Mr Yawela directions for a job to pick up at Brighton-Le-Sands or Rockdale and drop off in Byron Bay. Mr Yawela accepted this direction with the knowledge that he would be paid for the work which he undertook for Elena Removals. Mr Yawela was therefore “doing things” for Elena Removals “which should properly be analysed as being done pursuant to contract”.
I therefore find that the provisions of s 20 (1) of the 1987 Act are satisfied whereby Elena Removals is liable to pay compensation because Elena Removals had contracted with Mr Yawela for the execution of work (being the transport of goods and items to Byron Bay and then return to Sydney) and Mr Dakeka sustained injury during the execution of that work, and Mr Yawela did not have a policy of workers compensation insurance.
Mr Doak has raised some issues in regard to the application of s 20 of the 1987 Act in written submissions which were filed on 18 May 2023.
Firstly, whether s 20 applies to a principal who is uninsured. In Easton v Wiseman & Others [1990] NSWCC 11; 6 NSWCCR 103 (Easton), Burke J said at [108F]:
“I incline to the view expressed by Mills…that the overall purpose of the provision is to ensure, as far as practicable, that liability falls upon a licensed insurer or self insurer rather than the WorkCover Authority.”
While that may be the policy behind s 20, the provisions of that section of the Act do not appear to preclude the situation where the principal is also uninsured.
Secondly, whether the truck that was being driven by Mr Yawela and which Mr Dakeka was injured in comes within the definition of “premises on which the principal has undertaken to execute the work” or “which otherwise are under the principal’s control or management” which is referred to in s 20 (6) and which exempts the principal (being Elena Removals) from the liability imposed by s 20 (1).
Most of the authorities on this sub-section date back to English decisions at the turn of the twentieth century. That was a time when motor vehicles had only just started to be used. Those authorities approached the identification of “premises” and the issue of control or management of work on a geographical distance. For instance, in Fenn v Miller [1900] 1 QB 788, an injury some 110 yards away from the premises was considered too far for the equivalent sub-section to apply in England.
The only recent case which provides some limited assistance is the WA Court of Appeal decision of Jones v Wesfarmers Ltd [2003] WASCA 225 (Jones v Wesfarmers). In that case the Full Bench was satisfied that the provisions of the equivalent of s 20 (6) of the 1987 Act were met by the worker being injured while carrying out repairs on a trailer at the premises of the principal, Wesfarmers Ltd, but without having to determine whether the trailer itself was “premises”. However, Malcolm CJ (with Parker J and McKechnie J agreeing) said at [52]:
“It was while performing maintenance work, at the request of the respondent, and on a trailer under its control that the appellant suffered the relevant disability.”
There appears to be no reason why the truck that was being driven by Mr Yawela, but which was owned by Elena Removals and used for the purposes of the business conducted by Elena Removals, should not be regarded as “premises” whereby Elena Removals could execute its work. From the available evidence the business being conducted by Elena Removals was no more than the provision of trucks which could be used in removalist work. The trucks owned by Elena Removals were part, if not all, of its “premises” whereby Elena Removals could execute its work.

Furthermore, the ownership and use of the truck by Elena Removals for its business means that the truck was under the control or management of Elena Removals, just as Malcolm CJ considered the trailer on which the worker was working on when he was injured in Jones v Wesfarmers was under the control of the principal.
I do not consider that s 20 (6) should be read more narrowly to be limited to the control of the vehicle in the manner of driving, which is a submission posed, although not endorsed, in
Mr Doak’s written submissions. In my view s 20 (6) aims to capture those places where work is being executed in furtherance of the contract reached between principal and contractor. The truck that was being driven by Mr Yawela was “premises” where such work was being executed.
I therefore do not consider that s 20 (6) of the 1987 Act exempts the first respondent from the liability to make workers compensation payments to Mr Dakeka.
There was no appearance by Elena Removals or Mr Marakha on any of the three occasions when this matter was listed for conciliation and arbitration. The registered address for Elena Removals Pty Ltd is 26A Tasman Parade, Fairfield West, and the lawyers for Mr Dakeka do not need to do anything more than ensure that relevant documents are served on that address.
I accept that the lawyers for Mr Dakeka have done their best to ensure that Elena Removals and Mr Marakha have been provided with all documents filed with the Commission and have been advised of the dates for conciliation and arbitration. The Applications to Admit Late Documents filed on 13 March 2023, 18 April 2023 and 11 May 2023 include copies of correspondence not only to the registered address of Elena Removals at Fairfield West, but also an address at 23 Greenfield Road, Greenfield Park, which the lawyers understand, from due diligence, that Mr Marakha might be residing at.
I therefore consider that Elena Removals has been put on notice of the claim being made by Mr Dakeka and has had ample opportunity to defend that claim.

The claim for weekly payments of compensation

There has been no further evidence provided by Mr Dakeka since his statement dated
7 February 2022 which sets out how the injuries he sustained in the motor accident on
1 December 2021 continue to affect him, especially in regard to any capacity he may have for work.
However, there is no doubt that Mr Dakeka sustained serious injuries in the motor accident. The fourth respondent did not seek to argue against a finding that Mr Dakeka has had no current work capacity since the motor accident.
Mr Dakeka’s general practitioner, Dr Marioud, has consistently issued Certificates of Capacity certifying Mr Dakeka as having no current work capacity.
Dr Sanki, general surgeon, has provided a report dated 12 March 2023. Dr Sanki has been treating Mr Dakeka since August 2022. Dr Sanki writes that he found significant disfigurement of the left leg when he last saw Mr Dakeka in March 2023. He writes that the girth of the left leg is almost 50% of the right leg. Dr Sanki records that he could not elicit any reflexes in the lower limbs and movements of the lumbar spine were considerably reduced.
Dr Sanki concludes:
“The accident unfortunately has destroyed his life, totally. He will not be able to resume work in any capacity. It has affected his chances of getting married.
Although I expect some improvement in his mobility in the next few months, I do not feel that he will ever improve to be able to embark on any permanent employment.”
A report from Dr Wahaib, consultant psychiatrist, dated 23 March 2023 records Mr Dakeka also having significant psychological problems as a result of the motor accident, including a diagnosis of post-traumatic stress disorder complicated by major depression.
Mr Dakeka states that he studied Engineering in Iraq and Lebanon. He states that he studied English for two or three months before becoming a carer for his father. Mr Dakeka’s outlook for future employment therefore might not be as bleak as stated by Dr Sanki if he can increase his literacy and academic skills. However, I accept that it is going to be a long time before this might occur and I certainly accept from the evidence that Mr Dakeka has had no current work capacity since 1 December 2021.
In regard to Mr Dakeka’s pre-injury average weekly earnings (PIAWE), Mr Young submits that it should be either $1,000, based upon what Mr Dakeka was paid by Mr Yawela on
30 November 2021, or the relevant award rate for a removalist.
Clause 4 of Schedule 3 of the 1987 Act provides:
“(1) If, at the time of the injury, the injured worker had been continuously employed in employment for less than 4 weeks, the
‘pre-injury average weekly earnings’ in relation to the worker may be calculated having regard to the weekly average of the earnings that the worker could reasonably have been expected to have earned in the employment, but for the injury, during the period of 52 weeks after the injury.
(2) The regulations may make provision for the matters to be taken into account for the purposes of determining the earnings that the worker could reasonably have been expected to have earned in the employment, but for the injury, during the period of 52 weeks after the injury.”
Regulation 8F of the Workers Compensation Regulation 2016 provides:
“(1) In determining the earnings that a worker could reasonably have been expected to have earned in employment for the purposes of clause 4(1) of Schedule 3 to the 1987 Act, the following matters are to be taken into account--
(a) any contract of employment made before the date of the injury,
(b) any award or agreement relating to the employment,
(c) any hours worked or earnings received by the worker during the period of 52 weeks before the injury.
(2) If the consideration of those matters does not reasonably assist in determining the earnings that the worker could reasonably have been expected to have earned in the employment, the earnings are to be determined by having regard to the average weekly amount earned during the period of 52 weeks before the injury by other persons for the performance of similar work as the worker (whether or not with the worker's employer).”
Mr Dakeka was employed by Mr Yawela for less than four weeks. He states that he was told by Mr Yawela that he would be paid $25 per hour. However, Mr Dakeka does not state that he regularly worked a certain amount of hours each week during the month of November 2021. He has not provided a schedule of the work he did for Mr Yawela during the month of November 2021. The text messages and photos indicate that Mr Dakeka was being provided with work by Mr Yawela as and when it was available. The matters referred to in Reg 8F (1) therefore do not assist in the determination of PIAWE.
In my view, the earnings from similar work performed other workers which is referred to in Reg 8F (2) is best met by reference to the appropriate award. The relevant award is the Road Transport and Distribution Award 2020. A motor driver’s assistant/furniture remover’s assistant is classified as a Transport Worker Grade 1. The award rate for a Transport Worker Grade 1 which applied on 1 December 2021 was $818.30 per week.
Ninety five per cent of $818.30 amounts to $777.40. Eighty percent of $818.30 amounts to $654.65. Mr Dakeka is entitled to the benefit of increases in weekly payments of compensation pursuant to s 82A of the 1987 Act.
The award of weekly payments of compensation to be paid to Mr Dakeka will be as follows:
(a)    $818.30 per week from 1 December 2021 to 2 March 2022 pursuant to s 36 (1) of the 1987 Act;
(b)    $654.65 per week from 3 March 2022 to 31 March 2022 pursuant to s 37 (1) of the 1987 Act;
(c)    $666.70 per week from 1 April 2022 to 30 September 2022 pursuant to s 37 (1) of the 1987 Act;
(d)    $689.15 per week from 1 October 2022 to 31 March 2023 pursuant to s 37 (1) of the 1987 Act, and
(e)    $717.70 per week from 1 April 2023 to date and continuing pursuant to s 37 (1) of the 1987 Act.

The claim for medical expenses

The claim for future treatment expenses as provided for by s 60 (5) of the 1987 Act was discontinued at the preliminary conference conducted on 11 November 2022.
Mr Young sought a general order for the payment of medical expenses pursuant to s 60 (1) of the 1987 Act.
There will be an order that the first respondent is to pay the applicant’s reasonably necessary medical expenses for treatment as a result of injury sustained by the applicant on
1 December 2021 pursuant to s 60 of the 1987 Act.

[2023] NSWPIC 246

29 May 2023