Death v Workers Compensation (Dust Diseases) Authority (No 1)

[2020] NSWDC 103

District Court

New South Wales

Medium Neutral Citation:	Death v Workers Compensation (Dust Diseases) Authority (No 1) [2020] NSWDC 103
Hearing dates:	16 March 2020
Date of orders:	17 March 2020
Decision date:	17 March 2020
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Appeal dismissed
Catchwords:	STATUTORY INTERPRETATION Workers Compensation (Dust Diseases) Act 1942 – Whether a person who performed voluntary work for a hardware business and was exposed to asbestos dust in the cause of that work is a “worker” for the purposes of this Act – Held, to be a “worker” under this Act, a person must be a “worker” as defined by the Workplace Injury Management and Workers Compensation Act, 1998.
Legislation Cited:	Coal Mine Health and Safety Act 2002 Coal Mines Regulation Act 1982 Rural Fires Act 1997 Worker's Compensation Act 1926 Worker's Compensation Act 1987 Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 Worker's Compensation (Dust Diseases) Act 1942 Work Health and Safety (Mines and Petroleum Sites) Act 2013 Workplace Injury Management and Worker's Compensation Act 1998
Cases Cited:	Ashton v Pratt [2015] NSWCA 12 Cudgegong Soaring Pty Ltd v Harris (1996) 13 NSWCCR 92 Dickinson v The Tropical Fruits Incorporated [2006] NSWWCCPD 331 Guilbert v Glenworth Horse Riding Pty Ltd [2020] NSWWCCPD 10 Harris v Cudgegong Soaring Pty Ltd (1995) 11 NSWCCR 678 Mannah v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2005) 2 DDCR 337 Riverwood Legion & Community Club Limited v Morse [2007] NSWWCCPD 88 Secretary, Department of Family and Community Services v Bee [2014] NSWWCCPD 66 Sion v The NSW Trustee and Guardian [2013] NSWCA 337 Teen Ranch Pty Ltd v Brown (1995) 11 NSWCCR 197 West v Workers' Compensation (Dust Diseases) Board (1999) 18 NSWCCR 60 Worker's Compensation (Dust Diseases) Board v Veksans (1993) 32 NSWLR 221; 9 NSWCCR 647
Texts Cited:	Workers' Compensation Practice in New South Wales (The Law Book Co, 1966)
Category:	Principal judgment
Parties:	Appellant Elizabeth Ann Death   Respondent Workers Compensation (Dust Diseases) Authority
Representation:	Appellant J.L. Sharpe & B. Williams   Respondent B. Epstein
File Number(s):	RJ00319/19
Publication restriction:	Nil.

Judgment

1. HIS HONOUR: This is an appeal from a decision of the Worker's Compensation (Dust Diseases) Authority made on 13 August 2019. The appeal is made under s 8I of the Worker's Compensation (Dust Diseases) Act 1942. The nature of the appeal is a hearing de novo: Worker's Compensation (Dust Diseases) Board v Veksans (1993) 32 NSWLR 221; 9 NSWCCR 647. However, there is no dispute about the facts of this case.

Facts

2. The plaintiff's statement of claim contains these allegations:

"2. In the course of working for her brother in law, Frank Death, at Godwin's Timber and Hardware Store situated in Taree, New South Wales, the plaintiff was exposed to and inhaled asbestos, dust and fibre.

3. As a consequence of the aforesaid exposure of the plaintiff to asbestos, dust and fibre, the plaintiff contracted mesothelioma.

4. On 27 June 2019, [an] application was made by the plaintiff to the defendant as Dust Diseases Care ("DDC") for an award of compensation pursuant to s 8 of the Worker's Compensation (Dust Diseases) Act 1942.

5. The plaintiff claims that her work undertaken at Godwin's Timber and Hardware Store satisfy [sic] her classification as a worker under the definition of the Worker's Compensation (Dust Diseases) Act 1942.

6. The DDC declined the plaintiff's application on 13 August 2019".

3. The proceedings were commenced by a statement of claim filed on 15 September 2019. The defendant filed the defence on 1 November 2019. The defendant admitted par 4 of the statement of claim which I have quoted. The next plea in the defence is this:

"As to par 5, the defendant says that the plaintiff was and is not a 'worker' as defined by the Worker's Compensation (Dust Diseases) Act 1942."

Paragraph 6 of the statement of claim has been admitted by the defendant.

4. On the evidence before me there is no dispute that the plaintiff suffers from epitheloid mesothelioma. That was diagnosed on 15 March 2019 by percutaneous needle biopsy of her left lung. The plaintiff's prognosis is extremely poor. The hearing was conducted yesterday. I give judgment today, ex tempore, because there is not sufficient time to prepare a reserved judgment.

5. In essence, there is no dispute that the plaintiff performed work for her brother in law, Frank Ernest Death and his partner Rod Illidge, who ran a business known as Godwin's Timber and Hardware at premises at Bruntell Street, Chatham, which is a town on the north bank of the Manning River immediately east of Taree. This hardware business had previously been operated by a Mr Vic Godwin. On 20 January 1976, Frank Death and Rod Illidge reopened that business, having rented the premises from Mr Godwin. They continued to use the name Godwin's Timber and Hardware.

6. Inter alia, the hardware business sold asbestos sheets, which were known as fibro. Mr Frank Death's affidavit contains this matter:

"4. As part of the business, we sold asbestos cement sheeting, then known as fibro and also compressed sheets, which were thicker. We bought all asbestos sheets from James Hardie and Co.

5. The business regularly received a semi-trailer load of asbestos sheets from James Hardie and Co, and the deliveries were often on a Saturday.

6. The sheets came loaded on pallets on the back of the truck and then the load of asbestos sheets from James Hardie & Co had to be unloaded and stacked straight away. The unloading and stacking was done by hand until the business could afford to buy a forklift.

7. The load of asbestos sheets from James Hardie & Co then were stacked in racks in the yard. There were about 30 sheets to each pallet and about 100 pallets per load.

8. Normally, the asbestos sheets were sold whole, but if required they were cut as required.

9. For the thinner sheets I used fibro cutters with jaws just moving along or across the sheets as needed to cut them. On occasions I used a hand saw to cut the thin sheet if the fibro cutter was not available.

10. With the compressed sheets I used a dry power saw. This gave off a lot of dust in the process.

11. The compressed sheets came in four thicknesses, 9 mm, 12 mm, 15 mm and 18 mm and were heavy.

12. I had to use the power saw on the compressed sheets as they were too thick to cut by hand.

13. Up until 1980, we just cut up the sheets in the yard as I have indicated and there was some cutting every day, either by myself or Rod Illidge or a staff member.

14. As well as the yard being very dusty from the cutting up, the dust blew into the Store and we breathed it in."

7. The plaintiff is married to Dr John Death, the brother of Mr Frank Death. They married in 1974. Initially they lived in Canberra in a residence provided by hospital authorities in the ACT. In 1976, Dr and Mrs Death bought a flat in Mosman, but later they moved to a property on Mount Warning Road, Murwillumbah, commencing to live there from mid-1977 until late 1983. During that period Dr Death worked as a general practitioner in Murwillumbah. The plaintiff's affidavit contains this material:

"5. In late 1975, my husband's brother, Frank and another partner Rod Illidge opened a hardware store (which had previously traded

as Godwin's Hardware) in Chatham, a suburb of Taree. They commenced trading as Godwin's Timber and Hardware which continued trading in those premises until late 1982. Rod Illidge and his wife Jill are good friends of John and me.

6. In 1976, while I was still living in Sydney, my husband and I regularly visited Frank in Taree and often helped him in Godwin's Timber and Hardware Store during this time. I attended at the Store on at least six occasions during each of the 1976 year and the 1977 year, either staying on a weekend, but often longer. Jill Illidge has a calendar from 1976 and 1979 which lists some of the visits we made to Taree. As deliveries of materials were received on Tuesdays, Thursdays and Saturdays each week, Frank asked both my husband and myself to help out in the Store, particularly assisting in the unloading and stacking of flat asbestos cement sheets (fibro) and compressed asbestos sheeting. It would take up to two hours to unload the delivery truck by hand.

7. Frank did not have a forklift until late 1976 and thus the asbestos sheeting had to be moved by hand from trucks on to shelving. This was done one sheet at a time. There were dozens of sheets that needed to be moved on each occasion.

8. I was present and assisted when my husband and Frank moved sheets of asbestos around, unloading them off trucks and loading them on to shelving or racks, some of which were in a covered area near the yard. Others were stacked on racks in the open. There was always dust stirred up when moving the sheets and I would breathe in the dust.

9. On a number of occasions, in my presence and with my help, Frank cut the flat asbestos cement sheets with a fibro cutter. There was some dust created by this actually and I breathed in the dust.

10. On more than one occasion, in my presence and with my help, Frank used a power saw to cut the thick compressed asbestos sheeting. This operation took about ten minutes and clouds of dust were given off, and I would breathe in the dust. There was dust from this all around.

11. On or about three or four times each year when I stayed at Frank's house during my visits, I helped out there, assisting them to settle into their new flat including washing clothes that had been used at the hardware store. Frank wore shorts and shirts, not overalls. When I shook out the clothes in the laundry before washing them, there was always a great deal of dust given off and I would breath the dust in. I did all this work in the confines of the laundry.

12. Once we moved to Murwillumbah in late 1977, our visits were

less frequent because of the distance, but we would still go there three to four times a year as John's parents were often there visiting and looking to move there in the future. By that time, Frank had purchased a forklift and thus there was no longer the need for asbestos sheets to be hand uploaded, and my presence in the shop was no longer needed for that purpose, although I still attended the store and helped in whatever area was needed."

8. It is exposure to asbestos dust that the plaintiff says with the cause of her epitheloid mesothelioma. The plaintiff's affidavit does disclose some other exposures to asbestos, as I understand it, not in the form of dust particles. However, I am not concerned with causation at this stage.

Issue

9. The issue tendered for my determination is whether the plaintiff was a "worker" for the purposes of the Worker's Compensation (Dust Diseases) Act 1942. It is common ground that the work that the plaintiff did at Godwin's Timber and Hardware when it was owned and operated by her brother in law, Frank Death and his partner Rod Illidge was done on a voluntary basis. The plaintiff was merely helping out her brother in law, his wife, Mr Illidge and his wife. There is no dispute that the plaintiff was a volunteer and that the work she did was not remunerated. The plaintiff maintains in these proceedings that merely doing work for Mr Frank Death, makes her a "worker" for the purposes of the Worker's Compensation (Dust Diseases) Act 1942.

Statutory interpretation

10. This is a matter of statutory interpretation. I shall need to refer to a number of Acts of Parliament. I provide this table showing the full title of each Act and the brief description that I shall use in this judgment.

FULL TITLE	BRIEF TITLE
Worker's Compensation Act 1926	1926 Act
Worker's Compensation (Dust Diseases) Act 1942	Dust Act
Worker's Compensation Act 1987	1987 Act
Worker's Compensation (Bush Fire, Emergency and Rescue Services) Act 1987	Bush Fire Act
Workplace Injury Management and Worker's Compensation Act 1998	1998 Act

The Dust Act

11. A number of provisions of the Dust Act are to be noted. The first is the long title of the Act. It is this:

"An Act to make further and more extensive provision regarding the payment of compensation in the case of workers who suffer death or disablement owing to the disease known as silicosis of the lungs, or owing to other diseases of the pulmonary or respiratory organs caused by exposure to silica dust; to validate certain payments; to repeal the Workmen's Compensation (Silicosis) Act 1920-1936, as amended, by subsequent Acts; and for purposes connected therewith."

The important points to note from the long title is that the scheme of the Dust Act is to provide payment of compensation to workers who die or are disabled by a dust disease. Section 1(1), provides the short title of the Act and an important consideration. The subsection is this:

"This Act may be cited as the Worker's Compensation (Dust Diseases) Act 1942 and shall be construed with the Worker's Compensation Act 1987, hereinafter called the Principal Act."

I am required by s 1(1) to construe the Dust Act with the 1987 Act. Prior to the introduction of the 1987 Act, s 1(1) of the Dust Act required it to be construed with the 1926 Act; see Boulter, Workers' Compensation Practice in New South Wales (The Law Book Co, 1966), p 558.

12. Section 3 of the Dust Act contains a number of definitions. They include these:

"Dust Occupation means industry or process prescribed as a dust occupation.

Employer means an employer of workers in any industry or

process, employment in which exposes the worker to the possibility of contracting a dust disease.

Process includes occupation and any description of manual labour.

Worker does not include a worker in or about a mine."

13. The “mine” referred to in the last definition is a mine within the meaning, the Coal Mines Regulation Act 1982 as in force, immediately before its repeal by the Coal Mine Health and Safety Act 2002 but it does not include any place that, in accordance with s 10(2) of the Work Health and Safety (Mines and Petroleum Sites) Act 2013, is a place to which that Act does not apply. In short, "mine" means a coal mine.

14. Section 6 of the Dust Act provides for the constitution of the Workers' Compensation (Dust Diseases) Fund. There is to be paid into the Fund contributions by insurers made in accordance with s 6. If any monies be provided by Parliament to the Fund, they also are to be included in the Fund. The Fund also is entitled to be paid any fees payable under s 5A of the Act which is not presently relevant and amounts contributed by insurers under subs(6) and (7D) of s 6 and any investment income. Section 6(2) requires the Authority to pay out of the Fund all compensation payable under the Dust Act and the costs of administering the Dust Act, including the cost of appeals to this Court. Subsection (2A), permits the Dust Diseases Board to make grants for the purpose of clinical or research work relating to the prevention and treatment of dust diseases and grants for the purpose of providing assistance to groups or organisations that provide support for victims of dust diseases and their families. Section 6(2B) provides this:

"Where, in the opinion of the Authority, employment in a particular

industry or location exposes workers in that industry or location to a substantial risk of contracting a dust disease, the Authority may expend money from the Fund in arranging for, and causing to be carried out, medical examinations of such of those workers as it thinks fit."

As earlier, one will note the concatenation of the words employment in a particular industry exposing workers in that industry to risk of contracting a dust disease. In other words, the word "worker" is concatenated with the word "employment".

15. Section 6(3) is in these terms:

"The Authority shall, from time to time, make a determination as to the class or classes of employment (in this section hereinafter referred to as determined class or classes of employment) in any industry or process, which employment is of such a nature as to expose the worker to the risk of contracting a dust disease and shall from time to time notify ICNSW and SIRA of its determination."

Under subs(4) the Authority is required to advise the relevant Authority of an estimate of the amount to be expended out of the Fund for the following year, commencing on 1 July in each year. Subsection (5) is a provision which determines how the estimate is to be made. Subsection (6) requires that the amount of such estimate less any monies referred to is sub(5A) is to be paid to the Authority by way of contributions by insurers in accordance with the provisions of the section. The contributions to be so paid by any insurer shall be of such amount and should be made at such times as SIRA determines.

16. In essence, the majority of the income of the Workers' Compensation (Dust Diseases) Fund comes from levies made on worker's compensation insurers who insure employers who employ workers in determined class or classes of employment as required by subs(3).

17. Section 8 bears a heading "Certificate of Medical Assessment Panel and Rates of Compensation". The section provides for rates of compensation for persons who are totally or partially disabled and for benefits to be paid to the dependants of workers who die as a result of a dust disease. I shall only deal with the first category, that is, of payments due to workers in a dust industry who are still alive. Section 8(1)(a) is this:

"(1) Subject to this Act-

(a) where the Medical Assessment Panel certifies that a person is totally or partially disabled for work from a dust disease and that the person's disablement was reasonably attributable to the person's exposure to the inhalation of dust in an occupation to the nature of which the disease was due, such persons shall, if the Authority finds-

(i) that such person was a worker during the whole of the time the person was engaged in such occupation, or

(ii) that such a person was a worker during only a part of the time the person was engaged in such occupation, and, on the report of the Medical Assessment Panel, further finds that the person's disablement was reasonably attributable to the person's exposure to the inhalation of dust in such occupation during the time that the Authority has found that the person was a worker in such occupation;

be entitled to an award from the Authority, and to receive compensation at the prescribed rates from the Fund."

18. Clearly, the authority is to determine that the person claiming compensation under the Dust Act, "was a worker" during the time that the person was exposed to a relevant dust. Here, the plaintiff submits that the word "worker" where used here does not mean a "worker" engaged under a contract of service, but means a person carrying out work, even work of a voluntary nature.

19. Subsection (2) includes this matter:

(2) The prescribed rates of compensation payable under an award of the Authority made pursuant to subsection (1), not being an award to which subsection (2B) applies, shall, subject to this section, be—

(a) where the award is made pursuant to paragraph (a) of that subsection—the weekly compensation payments prescribed by Division 2 of Part 3 of, and Schedule 6 to, the Principal Act in respect of workers employed in or about a mine,

(b) where the award is made pursuant to paragraph (b) of that subsection—the compensation payments prescribed by Division 1 of Part 3 of, and Schedule 6 to, the Principal Act in respect of workers who die before the commencement of that Division, calculated as if those provisions as in force at the date of death had been in force at the date of the injury to the person whose dependants are entitled to the award,

(c) where the award is made pursuant to paragraph (c) of that subsection and the disablement for work from the dust disease was—

(i) total—the compensation payments prescribed by Division 1 of Part 3 of, and Schedule 6 to, the Principal Act in respect of workers who die before the commencement of that Division, calculated as if those provisions as in force at the date of death had been in force at the date of the injury to the person whose dependants are entitled to the award,

(ii) partial—such percentage of the compensation payments that would have been payable under subparagraph (i) had the disablement been total as is equal to the percentage of the person’s disablement for work from the dust disease as certified by the Medical Assessment Panel, where the dependants of the person are entitled to compensation payments by reason of the operation of subparagraph (i) of paragraph (a) of subparagraph (ii) of paragraph (c) of subsection (1), at the last examination of the person made by the Medical Assessment Panel before the person’s death or, where the dependants of the person are entitled to compensation payments by reason of the operation of subparagraph (ii) of paragraph (a) of subparagraph (ii) of paragraph (c) of subsection (1), in the certificate issued by the Medical Assessment Panel pursuant to subparagraph (ii) of the said paragraph (a),

(d) where medical or related treatment or hospital treatment or occupational rehabilitation service or ambulance service becomes reasonably necessary as a result of the dust disease—the benefits prescribed by Division 3 of Part 3 of the Principal Act.

20. In essence, the compensation payable is the compensation that was payable either under the 1926 Act, or the 1987 Act, depending upon the date of the injury which means the date of the relevant exposure. I should point out that benefits payable to coal miners are still largely governed by the 1926 Act, and the reference to coal miners in subs(2) merely maintains the old distinction between the 1926 Act and the 1987 Act.

21. However, the important thing to note is that the compensation is payable at the rate applicable to those who were workers for the purposes of either the 1926 Act or the 1987 Act. Compensation is something paid to a person because of a loss. The loss is the loss of wages that could have been earned had the person not been disabled. A volunteer, that is a person providing voluntary work to another is not earning anything and therefore even if disabled is not losing anything. The compensation is for loss of wages that would have been earned by a worker had he or she not been disabled.

22. Section 8AA, bears a heading, "Compensation not payable in certain circumstances". In essence, it excludes from the operation of the Dust Act, persons engaged under contract of service or apprenticeship outside of New South Wales and Commonwealth employees.

1998 Act now dominant

23. Since s 1(1) of the Dust Act was enacted, there was a major change to Workers' Compensation legislation. That was the enactment of the 1998 Act. When the 1998 Act was enacted, there was inserted into the 1987 Act, s 2A. That section is in these terms:

"1. The Workplace Injury Management and Workers' Compensation Act 1998, is referred to in this Act as the 1998 Act.

2. This Act is to be construed with, and as if it formed part of the 1998 Act. Accordingly, a reference to this Act includes a reference to the 1998 Act.

3. In the event of any inconsistency between this Act and the 1998 Act, the 1998 Act prevails to the extent of the inconsistency."

That provision makes the 1998 Act the "dominant” Act, as far as Workers' Compensation legislation is concerned.

24. Up until the enactment of the 1998 Act, s 3 of the 1987 Act contained a definition of "worker". That has now been moved to the 1998 Act, a completely unnecessary legislative amendment. The definition of "worker" is now contained in s 4 of the 1998 Act. Its current form is this:

“Worker means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing). However, it does not include—

(a) a member of the NSW Police Force who is a contributor to the Police Superannuation Fund under the Police Regulation (Superannuation) Act 1906, or

(b) a person whose employment is casual (that is for 1 period only of not more than 5 working days) and who is employed otherwise than for the purposes of the employer’s trade or business, or

(c) an officer of a religious or other voluntary association who is employed upon duties for the association outside the officer’s ordinary working hours, so far as the employment on those duties is concerned, if the officer’s remuneration from the association does not exceed $700 per year, or

(d) except as provided by Schedule 1, a registered participant of a sporting organisation (within the meaning of the Sporting Injuries Insurance Act 1978) while—

(i) participating in an authorised activity (within the meaning of that Act) of that organisation, or

(ii) engaged in training or preparing himself or herself with a view to so participating, or

(iii) engaged on any daily or periodic journey or other journey in connection with the registered participant so participating or the registered participant being so engaged,

Section 5 of the 1998 Act merely provides that Sch 1 has effect. Sch 1 contains what have been traditionally described as the deeming provisions, deeming certain types of persons to be workers within the meaning of the worker's compensation legislation. In the current case the plaintiff does not allege that she was in any form of deemed employment.

25. Despite the growing length of the definition of worker and the growing length of the definitions of deemed workers, the basis of the definition is that a worker is a person who works under a contract of service. For there to be a contract of service, there must be the usual elements of any contract, that is, an offer, acceptance of the offer, consideration passing from one to the other and the intention to create legal relationships. In the current case I have been addressed at some length as to whether there was any intention to create legal relationships, but that consideration is probably otiose because there was no consideration. Any contract requires consideration. It is one of the basic principles of our law.

Definitions of injury

26. The definition of injury remains in the 1987 Act. It is found in s 4 of the 1987 Act and is in these terms:

Injury—

(a) means personal injury arising out of or in the course of employment;

(b) includes a disease injury, which means—

(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and

(ii) The aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was a main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and

(c) does not include (except in the case of a worker employed in or about a mine), a dust disease as defined by the Workers' Compensation thus diseases at 1942 or the aggravation acceleration, exacerbation or deterioration of the dust disease, as so defined.

That definition is essentially the same definition and that was found in s 6 of the 1926 Act. That is, in particular for this case, that injury is defined for the purposes of the 1987 Act, not to include a dust disease, because dust diseases are compensated under the Dust Act. Probably somewhat otiosely, the 1998 Act also contains a definition of injury. It is this:

Injury—

(a) means a personal injury arising out of or in the course of employment, and

(b) includes—

(i) a disease contracted by a worker in the course of employment, where the employment was a contributing factor to the disease, or

(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, but

(c) does not include (except in the case of a worker employed in or about a mine)—

(i) a dust disease, or

(ii) the aggravation, acceleration, exacerbation or deterioration of a dust disease.

That definition of injury is not in exactly the same terms as the definition of injury in s 4, but there may be other provisions of the 1998 Act which cause it to be the same.

Bush Fire Act

27. Parliament has made provision for the payment of worker's compensation to certain volunteers. Those volunteers are those for whom provision is made in the Bush Fire Act. Like the Dust Act, a definition in s 3 of the Bush Fire Act defines the 1987 Act to be the “Principal Act". In essence, the Act is divided into two operative parts. Part 2 provides for bush fire fighter's compensation. A "firefighter" is defined in s 5 as meaning:

"(a) an official firefighter, being the captain, deputy captain or any member of a rural fire brigade or the group captain or deputy group captain of any rural fire brigades;

(b) any person who, without remuneration or reward, voluntarily and without obligation engages in fighting a bushfire:

(i) with the consent of or under the authority and supervision of the captain, or deputy captain of a rural fire brigade or the group captain or deputy group captain of any rural fire brigades, or

(ii) in conjunction with any civil Authority, and

(c) any person who, without remuneration or reward, voluntarily and without obligation engages in fire fighting a bush fire and who, in the opinion of the Self Insurance Corporation having regard to all the circumstances, should be deemed to be a fire fighter."

28. Section 7 of the Act lists injuries to which Pt 2 of the Act applies. Section 8 refers to associated operations or work which are contained in s 7. The sections are these:

7 Injuries to which Part applies (cf defn of “injury” in former s 17B (1))

(1) This Part applies to personal injury received by a fire fighter:

(a) arising out of or in the course of fighting a bush fire, or

(b) arising out of or in the course of a relevant journey by the fire fighter in relation to a bush fire.

(2) This Part also applies to personal injury received by an official fire fighter (or a person of a prescribed class) arising out of or in the course of:

(a) the carrying out of an associated operation or work, or

(b) a relevant journey by the official fire fighter (or the person) in relation to an associated operation or work.

(3) This Part also applies to an injury being a disease which is contracted, aggravated or exacerbated or which deteriorates in the course of doing anything referred to in subsection (1) or (2) if the doing of that thing was a contributing factor.

8 Associated operation or work (cf defn of “injury” in former s 17B (1))

(1) An associated operation or work is:

(a) a bush fire preventive operation,

(b) preparatory work,

(c) work of a prescribed kind (which may, but need not, be related to bush fire fighting, bush fire preventive operations or preparatory work), or

(d) work which, in the opinion of the Self Insurance Corporation having regard to all the circumstances and the advice of the Minister administering the State Emergency Service Act 1989, should be deemed to be work of a kind to which this paragraph applies.

(2) A bush fire preventive operation is:

(a) the burning, ploughing or clearing of firebreaks, or

(b) any other operation including (but without being limited to) the inspection of fire breaks or other works and the survey of areas for the purpose of detecting fires or ascertaining the need for precautions against outbreak of fire,

carried out by a rural fire brigade for the purpose of preventing the outbreak of bush fires or of restricting the spread of bush fires should they occur.

(3) Preparatory work is:

(a) the training or instruction of persons, by means of demonstrations, exercises, competitions or otherwise, in the fighting of bush fires, or in the carrying out of bush fire preventive operations, or

(b) the examination, preparation, maintenance, adjustment or repair of any vehicle, equipment or thing used or intended to be used by a rural fire brigade for the fighting of bush fires or for the carrying out of bush fire preventive operations,

and includes the giving or receiving of such training or instruction or the carrying out of or assisting to carry out such examination, preparation, maintenance, adjustment or repair.

It is to be noted that the sections describe some of the activities of a firefighter as work and one could, using ordinary English, refer to such a person carrying out work as a worker. However, under this Act, a firefighter is not a person employed under a contract of service. For example, if in a bushfire, the fire approaches a built up area and the Fire and Rescue New South Wales is called in to assist, a member of the that service who is injured is not entitled to compensation under the Bush Fire Act, but under the 1987 Act. Division 2 of Pt 2 is headed "Entitlement to compensation", and in essence provides that an injured bush fire fighter is entitled to the same benefits as an injured "worker" under the 1987 Act.

29. It is clear from s 20 that the funding for compensation for fire fighters comes from funds held by the New South Wales Rural Firefighting Fund referred to in the Rural Fires Act 1997.

30. Part 3 of the Bush Fire Act relates to emergency and rescue workers' compensation. An emergency service worker is defined in s 23. The same section also provides a definition of a rescue association worker and a surf life saver. Those provisions are these:

Emergency service worker means:

(a) a person:

(i) who is duly appointed under section 15, 16 or 17 of the State Emergency Service Act 1989, or

(ii) (Repealed)

(other than any such person who may be prescribed by the regulations as not being an emergency service worker for the purposes of this Part),

(b) a person:

(i) who is prescribed by the regulations as being an emergency service worker, or

(ii) who is a member of a class of persons prescribed by the regulations as being emergency service workers,

for the purposes of this Part, or

(c) a person who, in the opinion of the Self Insurance Corporation having regard to all the circumstances, should be deemed to be an emergency service worker for the purposes of this Part.

Rescue association worker means:

(a) a person who is an executive member of the New South Wales Volunteer Rescue Association (other than any such member who may be prescribed by the regulations as not being a rescue association worker for the purposes of this Part),

(a1) a surf life saver,

(b) a person:

(i) who is prescribed by the regulations as being a rescue association worker, or

(ii) who is a member of a class of persons prescribed by the regulations as being rescue association workers,

for the purposes of this Part, or

(c) a person who, in the opinion of the Self Insurance Corporation having regard to all the circumstances, should be deemed to be a rescue association worker for the purposes of this Part.

Surf life saver means a person who:

(a) is an elected or appointed officer, or advisor, of the Surf Life Saving Association of Australia—New South Wales State Centre Incorporated, or

(b) is an elected member of a management committee or of the executive of a branch affiliated with that Association, being a branch specified in the regulations, or

(c) is a member of a club which is affiliated with a branch referred to in paragraph (b), being a club specified in the regulations, or

(d) is prescribed by the regulations as being a surf life saver, or

(e) is a member of a class of persons prescribed by the regulations as being surf life savers, or

(f) in the opinion of the Self Insurance Corporation, having regard to all the circumstances, should be regarded as being a surf life saver.

In essence, like members of a rural fire brigade all these persons are volunteers.

31. Injuries to which Pt 3 of the Bush Fire Act applies, are set out in s 24 and that section is in these terms:

24 Injuries to which this Part applies (cf defn of “injury” in former s 17J)

(1) This Part applies to personal injury received by an emergency service worker or a rescue association worker:

(a) arising out of or in the course of carrying out an authorised activity, or

(b) arising out of or in the course of a relevant journey by the worker in relation to an authorised activity.

(2) This Part also applies to an injury being a disease which is contracted, aggravated, accelerated, exacerbated or which deteriorates in the course of doing anything referred to in subsection (1) if the doing of that thing was a contributing factor.

It is clear from s 31, that the cost of payment of compensation to injured emergency and rescue workers comes from the Consolidated Revenue of the State.

32. Part 4 of the Act is headed, "Miscellaneous". Section 32 applies certain provisions of the 1987 Act and the 1998 Act, to this Act. Section 32(2) is this:

(2) Except as otherwise provided by or under this Act, provisions of the Principal Act and the 1998 Act which apply under or have effect for the purposes of this Act so apply or have effect as if in those provisions:

(a) a reference to a worker were a reference to a fire fighter under Part 2 of this Act, or an emergency service worker or a rescue association worker under Part 3 of this Act, as the case requires, and

(b) a reference to the employer of a worker were a reference to the Self Insurance Corporation, and

(c) a reference to the Authority’s Fund were a reference to the Bush Fire Fighters Compensation Fund or the Emergency and Rescue Workers Compensation Fund, as the case requires.

In other words, although those who obtained the benefit of the Bush Fire Act are not workers under a contract of service, certain provisions of the Workers' Compensation legislation applicable to workers are deemed to apply to them.

Workers compensation legislation

33. There is a further provision of the 1998 Act which should be noticed. Section 4 contains this definition of "workers compensation legislation":

Workers compensation legislation means—

(a) this Act and the instruments under this Act, or

(b) the 1987 Act and the instruments under that Act, or

(c) the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 and the instruments under that Act, or

(d) the Workers’ Compensation (Dust Diseases) Act 1942 and the instruments under that Act, or

(e) any other Act or instrument (or part) prescribed by the regulations.

Those words can be found in certain provisions of s 22 of the 1998 Act:

22 Objectives and general functions of Authority under workers compensation legislation

(1) The principal objectives of the Authority in exercising its functions under the workers compensation legislation are as follows—

(a) to promote the prevention of injuries and diseases at the workplace and the development of healthy and safe workplaces,

(b) to promote the prompt, efficient and effective management of injuries to persons at work,

(c) to ensure the efficient operation of workers compensation insurance arrangements,

(d) to ensure the timely and effective resolution of disputes arising under the workers compensation legislation,

(e) to ensure the appropriate co-ordination of arrangements for the administration of the schemes to which the workers compensation legislation relates.

(2) The general functions of the Authority under the workers compensation legislation are as follows—

(a) to be responsible for ensuring compliance with the workers compensation legislation,

(b) to be responsible for the day to day operational matters relating to the workers compensation scheme,

(c) to establish procedures for dealing with complaints made by employers and by injured workers in relation to matters arising under the workers compensation scheme,

(d) to monitor and report to the Minister on the operation and effectiveness of the workers compensation legislation and on the performance of the workers compensation scheme,

(e) to undertake such consultation as it thinks fit in connection with current or proposed legislation relating to the workers compensation scheme,

(f) to monitor and review key indicators of financial viability and other aspects of the workers compensation scheme,

(g) to report and make recommendations to the Minister on such matters as the Minister requests or the Authority considers appropriate.

Section 23 relates to specific functions of the State Insurance Regulatory Authority or SIRA. Section 23(1)C, provides that the Authority is to develop equitable and effective programs to identify areas of unnecessarily high costs in or for schemes to which the worker's compensation legislation relates.

34. In times past the law of employment was known as the law of master and servant and the relationship between employer and employee was known as the relationship between a master and a servant. Hence, comes the terminology a contract of service, because a servant served his master. These days, we refer to the law of employment, not the law of master and servant. Strictly speaking, one could describe the relationship between employer and employee as the contract of service. However, modern usage is to eschew the word ‘employee’ and use instead the word ‘worker’, so that we have an employer and a worker. This appears to me to be the scheme of the worker's compensation legislation which is contained in the definition supplied in the 1998 Act.

Consideration

35. To interpret the word "worker" differently to the word "worker" were occurring in the 1997 Act and the 1998 Act, would in my view be erroneous. The word “worker” when used in worker's compensation legislation must in my view, be construed as a worker pursuant to a contract of service. For example, one must consider the definition of employer in the Dust Act. That is defined as being "an employer of workers in an industry or process, employment in which exposes the worker to the possibility of contracting a dust disease". The phrase, "employer of workers"; indicates that those workers are to be employees, not volunteers. Furthermore, the operative provisions in s 8(1)(a), require that the worker referred to therein being engaged in an occupation. The word "occupation" is apt to describe employment. It is not apt to describe the work of a volunteer. A volunteer may have a hobby; a volunteer may be doing charitable work, but, what the volunteer is doing is not appropriately called an occupation.

36. Furthermore, the word “occupation” appears in the definition of "dust occupation" and that is defined to mean an industry or process and process includes an occupation or any description of manual labour. Again, occupation is apt to describe employment and manual labour is also apt to describe employment. Once upon a time, manual labour may have been part of a prison sentence, but persons are no longer sentenced to perform manual labour when they are in prison. However, it is hardly apt to describe the work of a volunteer as "manual labour". Everything in the Dust Act points to the fact that a person to be a "worker" is a person employed under a contract of service and the word “worker” is not apt to describe the work of a volunteer doing the sort of work which the current plaintiff did for her brother in law and his partner.

37. The other word to look at and consider in sec 8 is the verb "engaged". Engagement is a word appropriate to describe a binding relationship between two parties. A worker can be engaged under a contract of service to an employer. A man might be engaged to be married to a partner and although the action for breach of contract of marriage has now been abolished, it was once a tort to break off an engagement of marriage. That the very word engagement brings to mind of an ordinary English user a binding relationship between two people. Volunteer work is not a binding engagement between two persons. The word "engaged" would appear in s 8(1)(a)(i) is again apt to describe a contract of service, rather than mere voluntary work.

38. Furthermore I spent some time in considering the source of the funding for the compensation payable under the Dust Act in conformity with my consideration of the funding of the Dust Diseases Fund, in West v Workers' Compensation (Dust Diseases) Board (1999) 18 NSWCCR 60, where it became clear that the Commonwealth or Telstra, as it now is called could not be compelled to contribute to Workers' Compensation premiums and therefore to the Workers' Compensation (Dust Diseases) Fund and that spoke against the argument that a former employee of Telstra was entitled to the benefits under the Dust Act. Here, there is no provision for making any levy that might fund the Workers' Compensation (Dust Diseases) Fund for those who are mere volunteers and, although the circumstances of the current plaintiff's exposure to dust may be unusual, the exposure of many persons to dust from, for example, washing the clothing of members of a household who had been employed in a dust occupation are many. There are the wives and mothers of many persons who used to work in asbestos mines who were exposed to asbestos particles as they were regularly cleaning the clothing of their husbands or sons. Such claims in the Dust Diseases Tribunal are not uncommon.

39. It necessarily follows from the interpretation that I adopt of the Dust Act that the current plaintiff's claim must fail. However, at least there is the consolation of knowing that the plaintiff has recovered damages from the company once known as James Hardie & Co in proceedings brought in the Dust Diseases Tribunal.

The other argument

40. In deference to the arguments raised by counsel, I should refer to the cases that were cited to me in support of the proposition that it is unlikely in this case that there was any intention on the part of the plaintiff to enter into legal relationships with her brother in law, which on my finding is strictly unnecessary to decide, lest the matter go further.

41. The first decision to which I have been referred was Teen Ranch Pty Ltd v Brown (1995) 11 NSWCCR 197; a decision of the Court of Appeal in which Handley JA, Mahoney JA and Powell J, concurring, set aside an award made by O'Toole CCJ, on the basis that there was no binding relationship between the plaintiff who was a "volunteer" at a Christian recreational camp who was motivated by his faith to lend his services to the Christian camp. The relevant law is set out by his Honour at p 201B-D and at 201F to 202D. I was also referred to my own decision in Harris v Cudgegong Soaring Pty Ltd (1995) 11 NSWCCR 678, where I discussed the relevant principles at 698A to 695G. That decision was affirmed on appeal Cudgegong Soaring Pty Ltd v Harris (1996) 13 NSWCCR 92 (Sheller, Cole, Powell JJA). The majority judgment was delivered by Sheller JA, with whom Cole JA agreed. The relevant principles can be found at 101C to 103E.

42. I was also referred to the judgment of Emmett JA in Sion v The NSW Trustee and Guardian [2013] NSWCA 337 at [37] to [40]. Basten JA and Barrett JA, concurred with Emmett JA. Furthermore what his Honour said was taken up in Ashton v Pratt [2015] NSWCA 12 by Bathurst CJ between [59] and [73].

43. I find the principle referred to a number of decisions of the Workers' Compensation Commission, mainly decisions by Roche DP, and a more recent decision of Snell DP. The first decision of Roche DP was Riverwood Legion & Community Club Limited v Morse [2007] NSWWCCPD 88 in which Roche DP held that a director of the club was not a worker. The next decision is the Secretary, Department of Family and Community Services v Bee [2014] NSWWCCPD 66 in which Roche DP considered whether a registered foster carer was a deemed worker. I had determined that in Mannah v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2005) 2 DDCR 337, Sch 1 did not apply to a foster carer, because the parties lacked the intention to create legal relations. Roche DP felt that he was not bound by my decision and so decided the matter anew, and came to exactly the same conclusion.

44. The final decision of Roche DP is that of Dickinson v The Tropical Fruits Incorporated [2006] NSWWCCPD 331. The facts of that case are rather unusual. At [3] Roche DP said this:

"The respondent is an incorporated gay and lesbian social group, that holds dance parties for gays and lesbians in the Northern Rivers area of New South Wales. It has been in operation since it was formed in 1988. It is a non-profit organisation whose purpose is to overcome isolation of gay and lesbian people in the area where it operates. As part of its social calendar it organises and runs several major dance parties through the year. One such event was held on New Year's Eve on 31 December 2003, ('the party')".

In [4] Roche DP pointed out that the respondent was managed by a committee of volunteers. The relevant event was set out in [8] of his reasons. It is this:

"Whilst engaged as a volunteer parking attendance for the respondent on the evening of 31 December 2003, Ms Dickinson was struck by a car sustaining injury to her back. Her claim for compensation was declined and on 16 March 2006, an Application to Resolve a Dispute ("the Application") was registered with the commission seeking lump sum compensation in the sum of $8,750 in respect of 10% whole person impairment said to have resulted from the incident on 31 December 2013."

The applicant in that case was unsuccessful before the arbitrator and was unsuccessful before the Deputy President. Again, it was held that there was no intention to create legal relationships.

45. The final decision of the WCC to which I have been referred is that of Snell DP in Guilbert v Glenworth Horse Riding Pty Ltd [2020] NSWWCCPD 10. At first instance the applicant was unsuccessful before senior arbitrator Mr Glen Capel. Mr Capel was formally a partner with Messrs Hicksons and was kind enough to brief me when I was at the Bar. The facts are set out in [1] of the Deputy President's decision:

"Glenworth Valley Horse Riding Pty Ltd ('the respondent') ran a business that offered recreational and adventure activities that included horse riding. Olivia Bell Guilbert, (the appellant) went horse riding there as a customer from her early high school years. From when she was about 13 years old she carried out activities there from time to time as a volunteer. Volunteers were not paid. They cared for horses and carried out more general duties such as cleaning, helping in the cafe and helping staff or the yard manager. They participated from time to time in trail rides and riding lessons. The appellant suffered injury to her thoracic spine on 9 April 2010, (she was 18 years old at the time) when she was thrown from a horse while helping on a trail ride."

Again, it was held that there was no intention to create legal relationships. That was so held by Mr Capel and his finding was upheld by the Deputy President.

46. If it had been necessary to decide this case on the basis of whether there was the animus contrahendi, I would have not found in favour of the plaintiff, because it is clear that she was doing what she did out of affection and family obligation rather than because she intended that a legal relationship arise between herself and her brother in law.

Order

47. For those reasons the appeal is dismissed.

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Decision last updated: 14 April 2020