Fox v Aggforce Concreting - [2005] NSWWCCPD 47

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Fox v Aggforce Concreting [2005] NSW WCC PD 47
APPELLANT:  Brian Fox
RESPONDENT:  Aggforce Concreting
INSURER:Employers Mutual Indemnity (Workers Compensation) Ltd
FILE NUMBER:  WCC13294 - 2003
DATE OF ARBITRATOR’S DECISION:          17 February 2004
DATE OF APPEAL DECISION:  1 June 2005
SUBJECT MATTER OF DECISION: Whether the Appellant was a ‘worker’ or ‘deemed worker’ pursuant respectively to section 4, and section 5 and Schedule 1, clause 2 of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant: Hayden Fowler Corbett Jessop, Solicitors
Respondent: Vandervords, Solicitors

ORDERS MADE ON APPEAL: The decision of the Arbitrator is revoked and the following decision is made in its place:

The Appellant is deemed to be a ‘worker’ pursuant to section 5 and Schedule 1, clause 2 of the Workplace Injury Management and Workers Compensation Act 1998.
The Respondent is to pay the Appellant’s costs as agreed or assessed.

BACKGROUND TO THE APPEAL

On 11 March 2004, the Appellant, Brian Fox sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) in respect of a decision dated 17 February 2004.

The Respondent to the Appeal is Aggforce Concreting (‘the Respondent’).

Mr Fox was born on 23 July 1956 and is aged 48. His work history is largely in the construction industry: he is a qualified plumber but, more recently, until a previous injury on 11 March 2001, he had worked for about six years as a driver or offsider for concreting businesses. On 11 March 2001, Mr Fox suffered injury to his left elbow after an electric shock while working for Dragon Concrete Pumping Pty Ltd, a concrete pumping company. He was off work until being certified fit to return to work around October/November 2002, after which he began looking for concrete labouring work.

About early February 2003, he contacted John Martin of Aggforce Concreting, whom he had known for about fifteen years, and asked Mr Martin whether he had any work for him. Mr Martin subsequently asked him to turn up for work on particular jobs that he had on. Mr Fox first worked for Aggforce Concreting on 8 February 2003. On 10 February 2003, he obtained Australian Business Number (‘ABN’) registration as a sole trader. On 13 February 2003, he submitted a tax invoice to Aggforce Concreting for work performed between 8 and 13 February 2003, and later submitted three further invoices for work performed between 14 February and 4 March 2003. On 7 March 2003, Mr Fox sustained injuries to his neck and back in an industrial accident at the Hilton Hotel in Sydney. Aggforce Concreting denied liability.

On 12 August 2003, Mr Fox lodged an ‘Application to Resolve a Dispute’ with the Commission in respect of his claim for weekly compensation of $700 from 7 March 2003, and for medical, hospital and related expenses then amounting…

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.

Continue reading Fox v Aggforce Concreting

Details

AGLC: Fox v Aggforce Concreting [2005] NSW WCC PD 47
Case: [2005] NSWWCCPD 47
Decision Date: 1 June 2005

CaseChat Overview and Summary

Brian Fox appealed against a decision of the Workers Compensation Commission constituted by an Arbitrator, dated 17 February 2004, that Aggforce Concreting was not liable for Mr Fox's claim for weekly compensation for injuries sustained in the course of his employment with Aggforce Concreting. The issue in dispute was whether Mr Fox was a 'worker' as defined in section 4 of the Workplace Injury Management and Workers Compensation Act 1998 or a 'deemed worker' pursuant to section 5 and Schedule 1, clause 2 of the 1998 Act. The appeal was heard on the papers and Mr Fox sought leave to introduce fresh evidence. The appeal was allowed and it was determined that Mr Fox was a 'worker' within the meaning of the 1998 Act. The decision of the Arbitrator was revoked and a new decision made in its place. The Respondent was to pay the Appellant's costs as agreed or assessed.

Orders