Dakeka v Workers Compensation Nominal Insurer - [2023] NSWPIC 246

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2023] NSWPIC 246
Decision Date: 29 May 2023

CaseChat Overview and Summary

The plaintiff, Dakeka, sought weekly payments and medical expenses following a serious injury sustained in a motor accident. Dakeka claimed that he was employed by the first or third respondent or, in the alternative, that the first respondent was liable under section 20 of the Workers Compensation Act 1987 as the first respondent had contracted with the third respondent for the execution of work when the injury occurred. Neither the first nor the third respondent were insured. The primary legal issues were whether Dakeka was employed by either the first or the third respondent and, if so, whether the first respondent was liable under section 20 of the Act.

The court found that Dakeka worked under a contract of service with the third respondent and could also be considered a deemed worker for the third respondent at the time of the injury. It was held that the first respondent contracted with the third respondent to execute work, making the first respondent liable for compensation under section 20 as the third respondent was not insured. The pre-injury average weekly earnings were calculated based on the relevant modern award as Dakeka had been continuously employed for less than four weeks. The court determined that Dakeka had no current work capacity since his injury on 1 December 2021 and awarded weekly payments accordingly. It also made a general order for the payment of medical expenses and directed the fourth respondent, iCare, to make payments of compensation to Dakeka from the Workers Compensation Insurance Fund.

Orders