Fogarty v Dowerin Road Board

The case of *Fogarty v Dowerin Road Board* concerned an appeal to the High Court of Australia from a decision of the Supreme Court of Western Australia. The appellant, Fogarty, a worker employed by the Dowerin Road Board, sought workers' compensation for an injury sustained while repairing a private motor vehicle owned by a Mr. Harley. The Road Board denied liability, and the dispute centred on whether Fogarty's services had been temporarily lent to Harley by the Board, thereby making the Board liable under the Workers' Compensation Act.

The central legal issue before the High Court was whether the Dowerin Road Board was liable to compensate Fogarty for his injury. This required the Court to determine: (1) whether Fogarty's services had been "lent" to Harley within the meaning of the Workers' Compensation Act; (2) if so, whether this loan was an act of the Road Board or its authorised representatives; and (3) whether such a loan of services was within the scope of the Road Board's statutory powers, or if it constituted an ultra vires act.

A majority of the High Court (Rich, Dixon, Evatt, and McTiernan JJ.) held that Fogarty's services had been lent by the Road Board through its foreman, acting with the authority of the secretary. The Court reasoned that when a worker's services are lent, the work undertaken for the borrower defines the worker's duties for that period. While the loan of services is a popular conception, the critical factor is the continuation of the contract of service with the original employer. The Court found that Fogarty's employment with the Board had not been terminated, and the foreman, acting under the secretary's authority, had directed Fogarty to perform the repairs. Crucially, the Court determined that lending the worker's services, when the Board did not immediately require them and the remuneration was not to be borne by the Board, was incidental to the Board's general powers and not an ultra vires act. Consequently, the Road Board was liable for workers' compensation. Starke J. dissented, finding that neither the Board nor any person with its authority had lent Fogarty's services to Harley, and that the foreman's actions were beyond his authority.