Harvey v Aerodrome Management Services Pty Ltd - [2004] WADC 115

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HARVEY -v- AERODROME MANAGEMENT SERVICES PTY LTD [2004] WADC 115

CORAM: MAZZA DCJ

HEARD: 1 & 2 APRIL 2004

DELIVERED : 4 JUNE 2004

FILE NO/S: CIV 3790 of 1999

BETWEEN: ALAN ROY HARVEY
Plaintiff
AND
AERODROME MANAGEMENT SERVICES PTY LTD
Defendant

Catchwords:

Negligence - Damages - Section 175 of the Workers' Compensation and Rehabilitation Act 1981 (WA) - Meaning of "for the execution of any work by or under the contractor" - Whether defendant deemed employer

Legislation:

Interpretation Act 1984, s 18

Workers' Compensation and Rehabilitation Act 1981, s 93E(3), s 175(1)

Result:

Defendant liable
Damages awarded

Representation:

Counsel:

Plaintiff: Mr B L Nugawela
Defendant: Mr H M O'Sullivan

Solicitors:

Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: Srdarov Richards

Case(s) referred to in judgment(s):

Hewitt v Benale Pty Ltd (2002) 27 WAR 91
Marsden v Unimin Australia Ltd [2003] WADC 61
Price v Resolute Resources Ltd [2002] WADC 235

Case(s) also cited:

Berg v Hamersley Iron Pty Ltd [2002] WADC 239
Bramwell v The Western Australia Museum [2003] WADC 171
Hastie v Iluka Midwest Limited [2003] WADC 95
Hewer v Westpoint Constructions Pty Ltd [2002] WADC 152
Jones v SNF (Australia) Pty Ltd & Anor [2002] WADC 207
Jones v Wesfarmers Ltd [2003] WASCA 225
Klein v Minister of Education [2003] WADC 172
McGiveron v BP Refinery (Kwinana) Pty Ltd [2003] WADC 267
Royal v Alcoa of Australia Ltd [2004] WADC 31
Sunich v Fluor Australia Pty Ltd [2003] WADC 207
Willis v Normandy Golden Grove Operations Pty Ltd [2003] WASCA 221

MAZZA DCJ: This is a claim for damages arising out of a workplace accident which occurred at the Murrin Murrin mine site (Murrin Murrin) on 17 August 1998. The issue to be determined by me is whether the defendant is deemed to be the plaintiff's employer pursuant to s 175 of the Workers' Compensation and Rehabilitation Act 1981 ("the Act"). If the defendant is the plaintiff's deemed employer, the plaintiff will not be entitled to damages in his favour because, as each of the parties acknowledge, s 93E(3) of the Act has not been complied with. Liability has otherwise been admitted and the quantum of any damages has been agreed.

The facts

Very few of the facts were disputed by the parties.
The plaintiff was employed by a company which traded under the business name of Battersby Bros as a water truck driver. Battersby Bros are earth moving contractors. The defendant conducts a business which involves, in part, the construction of airport runways.
The defendant had a written contract (exhibit 1) with Fluor Daniel, the company responsible for the construction of Murrin Murrin, to widen and extend the runway at the airport which serviced the site. Part of the works to be performed by the defendant was the repositioning of lighting cables and fittings to accommodate the wider and longer runway.
The contract between the defendant and Battersby Bros was oral in nature and was negotiated by Mr Kevin Thomas, on behalf of the defendant, and Mr Reg Battersby on behalf of Battersby Bros. The precise terms of this contract were not detailed by the parties in evidence but its basic terms were clear enough. Essentially, Battersby Bros was required to do all the earthworks necessary to widen and extend the runway short of laying a bituminised surface. Battersby Bros provided a grader, a loader and two water trucks along with the personnel to operate these machines. It was also agreed that Battersby Bros would provide a worker whose main function was to drive one of three rollers which had been hired from Coates Hire. Battersby Bros further provided a first aid officer and labourer named Janet Mugge. Battersby Bros was expected to be available for work 12 hours per day, seven days per week.
Mr Thomas and Mr Reg Battersby agreed that the defendant would pay Battersby Bros on an hourly rate for the use of its machinery and workers whenever that machinery and those workers were required by the defendant. The defendant commenced work at the runway on or about 19 July 1998 and finished on or about 31 August 1998. Battersby Bros were on site for four or five weeks during that period.
In the latter part of July 1998 the work on the runway was delayed because the gravel which had been supplied by Fluor Daniel was of poor quality. Clearly this was not the fault of the defendant or Battersby Bros and as a result Mr Thomas approached Fluor Daniel who agreed to vary the contract it had with the defendant to allow the defendant to be paid what were called stand‑by rates until the problem with the poor quality gravel was sorted out. The defendant passed on this benefit to Battersby Bros. The stand‑by rates were less than the contracted rates agreed to by the defendant and Battersby Bros.
On 17 August 1998 the defendant needed a trench dug to find some electrical cabling near the runway. This cabling had to be shifted to accommodate the widening of the runway. The defendant got a firm called All‑Jays to dig a trench with a backhoe but Mr Thomas stopped the backhoe when it was approximately half a metre from the estimated position of the cable presumably because it was feared that the backhoe might inadvertently cut the cable. Mr Thomas wanted the remaining approximately half a metre to be dug manually. There had been some inclement weather in the days before 17 August 1998, although the day itself was fine. As a result of the effects of the inclement weather the job of digging the approximately half a metre trench went from, in the estimation of Mr Thomas, being a one person job to a two person job. Originally Mr Thomas thought that Ms Mugge may be able to perform the job herself but the rain had made it necessary to find another worker to perform the job.
On 17 August 1998 the water truck which the plaintiff drove was only required to be operational for three and a half hours. By the time Mr Thomas wanted the trench dug the plaintiff's water truck was not in use and he was sitting around doing nothing. Knowing that the plaintiff was not occupied with his usual duties, Mr Thomas thought that the plaintiff could be used to assist in the digging of the trench. The evidence revealed that Mr Thomas approached Mr Reg Battersby. In his evidence Mr Thomas thought that he spoke to Reg Battersby's brother, Rob Battersby, but I am satisfied that this was an error. Nothing turns on this point. Mr Thomas suggested that the plaintiff could be used by the defendant as a labourer and that Battersby Bros, who had to pay the plaintiff in any event, could be reimbursed for the plaintiff's wages.
Mr Reg Battersby did not immediately accept this proposal. He, very understandably, spoke to the plaintiff to see if the plaintiff wanted to do the work. Mr Reg Battersby explained to the plaintiff that if he did not want to do the work he did not have to do it and that he would still be paid by Battersby Bros whatever he chose. The plaintiff said that he would rather do some physical work than sit in the truck and so he agreed to help dig the trench.
Once is was ascertained by Mr Reg Battersby that the plaintiff was prepared to do the work, he and Mr Thomas spoke and came to an arrangement by which the plaintiff's services were provided to the defendant and Battersby Bros would receive from the defendant payment based on the number of hours that the plaintiff worked as a labourer.
There is no doubt that Mr Thomas provided the plaintiff with the hand tools required to dig the trench nor is there any doubt that the plaintiff performed the task of digging the trench under the direct control and supervision of Mr Thomas. Unfortunately, whilst the plaintiff was engaged in digging the trench he was injured and it is that injury which is the basis of the plaintiff's claim against the defendant.
On 17August 1998 Battersby Bros made out a work docket (exhibit 2) which included in it the plaintiff's work as a labourer for eight and a half hours. This docket was given to Mr Thomas to check and if it was accurate, to sign. Mr Thomas signed the docket. The docket formed part of an invoice (exhibit 3) which Battersby Bros later raised. The defendant entered the details of that invoice on a spreadsheet (exhibit 5 annexure C). Mr Thomas took the spreadsheet to Mr Reg Battersby to enable him to check and confirm the accuracy of the amounts entered onto the spreadsheet. Mr Reg Battersby made no protest about the amounts on the spreadsheet and as a result the defendant paid Battersby Bros an amount of money, $165,315, in accordance with the spreadsheet which amount included the invoice that contained the plaintiff's work as a labourer.
The only real area of factual disagreement concerned the obligation of the defendant to Battersby Bros in the event that the defendant had no work for Battersby Bros during the course of the working day. In his evidence, Mr Thomas was firm that the agreement he had with Battersby Bros was that the defendant had no obligation to pay Battersby Bros if there was no work for it to do. The only exception to this was inclement weather when the defendant agreed to pay Battersby Bros a minimum of eight hours per day for the machinery only. The plaintiff's counsel suggested to Mr Thomas in cross‑examination that the true arrangement was that the defendant would pay Battersby Bros an hourly rate whenever the machines and workers were idle and not just when the weather was inclement. This proposition was rejected by Mr Thomas. Moreover, Mr Reg Battersby did not contradict Mr Thomas on the point.
My impression of Mr Thomas was that he was a thoughtful and careful witness who, whilst acknowledging that he was recalling conversations which occurred almost six years ago, had a sufficiently accurate recollection for me to be satisfied with his evidence as to the arrangement with Battersby Bros concerning payment when its machinery and workers were idle.

Section 175(1) of the Act

The focus of counsels' closing addresses was on s 175(1) of the Act. In the end, neither counsel submitted that any other provision within s 175 was pertinent to this case.
Section 175(1) of the Act provides:
"(1)Where a person (in this section referred to as the principal) contracts with another person (in this section referred to as the contractor) for the execution of any work by or under the contractor and, in the execution of the work, a worker is employed by the contractor, both the principal and the contractor are, for the purposes of this Act, deemed to be employers of the worker so employed and are jointly and severally liable to pay any compensation which the contractor if he were the sole employer would be liable to pay under this Act."
If the defendant is a deemed employer within the terms of s 175(1) of the Act it will be entitled to the protection afforded by Part IV Division 2 of the Act: Hewitt v Benale Pty Ltd (2002) 27 WAR 91. Section 93E(3), which is contained in that Part provides:
"(3)Damages can only be awarded if —
(a)it is agreed or determined that the degree of disability is not less than 30% and that agreement or determination is recorded in accordance with the regulations; or
(b)the worker has a significant disability and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations."
It is common ground that the plaintiff has not complied with any of the requirements of the subsection. If the defendant establishes it is a deemed employer by virtue of s 175(1) of the Act the Court will be unable to award any damages to the plaintiff. However, if the defendant cannot establish that it is a deemed employer the plaintiff has no obligation to comply with the requirements of the subsection and will be liable to an award of damages.

Was there a contract for the plaintiff's labouring services?

Plainly, for the defendant to succeed it is fundamental that it establish that the plaintiff, at the time he sustained his injury, was working pursuant to a contract between the defendant as principal and Battersby Bros as contractor. The original oral contract between the defendant and Battersby Bros to perform the earthworks associated with the extension of the runway did not include a specific term that Battersby Bros employees may be called upon to dig trenches for the defendant or do general labouring work for the defendant. Nor was there any specific term which obliged Battersby Bros to perform the earthworks to move the pre‑existing electrical cabling to cater for the extensions. The fact that the defendant retained All‑Jays to dig the cabling trenches until just short of the pre‑existing runway, is an indicator that the defendant did not regard this work as part of the contract between it and Battersby Bros. I do not believe that the work carried out by the plaintiff, that is, the digging of the trench, came within the scope of the works originally agreed between the defendant and Battersby Bros.
However, in my view, the arrangement for the plaintiff to perform the work on 17 August 1998 was very obviously contractual in nature. The defendant was confronted with a situation where it required a trench to be dug. It did not have enough workers to do it but Battersby Bros, who were on site, had the capacity to provide a worker for this purpose. Mr Thomas, on behalf of the defendant, approached Mr Reg Battersby, on behalf of Battersby Bros and made an offer to him in the form of a request for the plaintiff's services in return for the payment of money calculated at an hourly rate. Mr Reg Battersby did not immediately accept the offer but checked with the plaintiff to see whether the plaintiff was willing to do the work. Having found that the plaintiff was willing to do the work, Mr Reg Battersby on behalf of Battersby Bros accepted the defendant's offer. In my opinion, at that point an enforceable contractual arrangement had been entered into by the defendant and Battersby Bros. Battersby Bros agreed to supply the plaintiff's labouring services to the defendant for the purpose of enabling a trench to be dug at the direction of the defendant for a valuable consideration, namely, the payment of the hourly rate,. Within a short time the work was done, invoiced and paid for.
It was submitted on behalf of the defendant that the trenching work performed by the plaintiff on 17 August 1998 was either part of the original contract or a variation thereof or an entirely new contract. For the reasons which I have already outlined, I do not regard the agreement reached between the defendant and Battersby Bros for the plaintiff's labour on 17 August 1998 as being within the terms of the original contract. I prefer the submission that the contract agreed to by the defendant and Battersby Bros was an entirely new contract. The works to be executed by the plaintiff were not works contemplated by the original contract and would not usually have been performed by Battersby Bros. Further, Battersby Bros did not, as part of its business, provide labourers to others. The agreement was a "one‑off" and temporary in nature.
The plaintiff's counsel, Mr Nugawela submitted that there was no contractual arrangement between the defendant and Battersby Bros. Using considerable ingenuity, he submitted that the work was not within the scope of the original contract between the defendant and Battersby Bros and amounted to a gratuitous provision of work by Battersby Bros to the defendant. This submission cannot be upheld. There was nothing gratuitous about the provision of the plaintiff's labour to the defendant. Not only did the defendant agree to pay for the plaintiff's labour but the defendant in fact paid for the labour.
Mr Nugawela further submitted that any purported contract made on 17 August 1998 between the defendant and Battersby Bros was invalid because the consideration for such an agreement was past consideration. This submission depended upon me accepting that the contract between the defendant and Battersby Bros for the earthworks included a provision that Battersby Bros would be paid even if its machinery and/or workers were idle. I have already found that this was not the agreement between the defendant and Battersby Bros. I am satisfied that the plaintiff was not working as a water truck driver at the time that Mr Thomas and Mr Reg Battersby struck their bargain. Battersby Bros would not have been entitled to any remuneration whilst the plaintiff was idle save for the agreement to dig the trench. Although there had been inclement weather in the days prior to 17 August 1998 that inclement weather had not prevented Battersby Bros carrying out earthworks pursuant to the original contract on that day. The consideration for the agreement reached by the defendant and Battersby Bros for the provision of the plaintiff's services on 17 August 1998 was not founded on past consideration.
Mr Nugawela further submitted, I think bravely, that any contract entered into by the defendant and Battersby Bros for the provision of the plaintiff's labour on 17 August 1998 was void because the defendant had no capacity to make a contract of such a nature with Battersby Bros. This rather novel submission relied upon the proposition that the defendant's contract with Fluor Daniel prohibited it from entering into any sub‑contract arrangement without Fluor Daniel's prior written permission. The plaintiff's counsel submitted that if there was a contractual arrangement between the defendant and Battersby Bros for the provision of the plaintiff's labour on 17 August 1998 it was in breach of the defendant's written contract with Fluor Daniel and thus, it was said, the defendant was deprived of any capacity to contract with Battersby Bros for the provision of the plaintiff's labour. This argument can be dealt with shortly. Even if the defendant was in breach of its contract with Fluor Daniel, this does not mean that the defendant had no capacity to contract with Battersby Bros. There is no evidence to suggest that the defendant came within the well recognised categories of incapacity recognised by law. I can see no basis whatsoever upon which it could be argued that the defendant was incapable of contracting with Battersby Bros.

Was the contract "for the execution of any work by or under the contract?"

Having found that there was a contractual arrangement between the defendant and Battersby Bros for the provision of the plaintiff's labour to dig the trench, I now turn to the question of whether the contract was "for the execution of any work by or under the contractor".
Neither counsel were able to bring to my attention any binding or persuasive authority as to the meaning of "for the execution of any work by or under the contractor". Although the words appeared in the Workers' Compensation and Rehabilitation Act 1906 (UK), the Workers' Compensation and Rehabilitation Act 1926 – 1957 (NSW) and more recently in the Workers' Compensation Act 1987 (NSW) there seems to be a dearth of authority which illuminates their meaning.
During the course of the trial, both counsel informed me that they expected some binding judicial guidance from the Full Court in two appeals from decisions of this Court which were heard in December 2003, namely Price v Resolute Resources Ltd [2002] WADC 235 and Marsden v Unimin Australia Ltd [2003] WADC 61. When counsel for the parties addressed me in closing on 2 April 2004 they agreed that judgment in this case should be reserved to await the outcome of those appeals. As at the date of this judgment no decision had been delivered by the Full Court on either appeal. On 26 May 2004 counsel for the plaintiff and defendant came before me in chambers. Counsel for the plaintiff had previously indicated that in the event I found against the plaintiff, he wished to pursue an application for leave to commence an action pursuant to s 93D(4) of the Act. If leave was to be granted and an action commenced it would have to be before the expiry of the six year limitation period on 17 August 2004. The plaintiff's counsel was concerned to ensure that there was sufficient time to decide the application for leave and if allowed, to issue proceedings. Accordingly, the plaintiff's counsel asked me to deliver judgment in the matter before me without the benefit of the Full Court's decisions in Price v Resolute Resources Ltd and Marsden v Unimin Australia Ltd. The defendant voiced no opposition to this request and as a result I have delivered this judgment prior to the Full Court deciding the two appeals.

It seems to me that I must construe the words according to their ordinary meaning but I must bear in mind the provisions of s 18 of the Interpretation Act 1984. That section requires me to construe s 175(1) of the Act in a way which promotes the purpose or object underlying the Act, as against a construction which would not promote that purpose or object. I accept that one of the purposes or objects of the Act is to limit the right of an injured worker to damages: Hewitt v Benale (supra) at 105.
The words "the execution of any work by … the contractor" are plain enough. These words mean that the contractor itself performs the work which is the subject matter of the agreement between the principal and it. The difficulty comes in the meaning of the words "the execution of any work … under the contractor". These words seem to me to connote the performance of the agreed work not by the contractor itself but by another person or entity that is subject to the authority, control, direction or guidance of the contractor (see the definition of the word "under" in the New Shorter Oxford English Dictionary 1993 ed, vol 2, p 3469).
Mr Nugawela submitted that the work which was performed by the plaintiff was work by or under the principal rather than by or under the contractor. Counsel for the defendant, Mr O'Sullivan, submitted that of the work was to be performed under Battersby Bros because it agreed to provide the services of the plaintiff as a labourer albeit on the condition that he received direction and supervision from the defendant and Battersby Bros directed or permitted the plaintiff to work accordingly.
I was referred by both counsel to comments made by E M Heenan J in Hewitt v Benale Pty Ltd (supra) at 119 in relation to a similar submission to the one being made by the plaintiff in this case. With respect, his Honour was not required to decide the meaning of the words "for the execution of any work by or under the contractor" and in the end the case, it seems to me, was decided having regard to the particular agreed facts of that case.
The evidence relevant to the determination of counsel's contentions on this point is relatively brief and is as follows. At T109 – T110 Mr Thomas said:
"O'SULLIVAN, MR: On or about 17 August at what stage had you reached in the project?‑‑‑We'd reached the stage of the work called final trim. That is where the surface is almost polished; that is, the levels are brought down to the lowest degree of smoothness and a surface is put on the gravel to allow the application of the bitumen seal.
Was there any need for a water truck to be engaged in this stage?‑‑‑We had two water trucks on site and at that stage of works there was only need for one water truck.
When you got to that stage, what was Mr Harvey doing?‑‑‑Most of the day he was not employed. He was sitting in the water truck waiting for instruction but not employed.
You approached his employer?‑‑‑Yes.
What discussion took place regarding Mr Harvey?‑‑‑Along the lines of the fact that I was paying the wet hire of a water truck but on this occasion the water truck wasn't being used so hence I was not paying for that water truck, it was stood down so to speak. However, because Alan Harvey was being employed by the Battersby brothers, his wages were continuing from the Battersby brothers. I suggested to Rob (sic) Battersby that he could work for me as a labourer and I could reimburse him on his labourer's rates.
Reimburse who?‑‑‑Reimburse Rob (sic) Battersby or the Battersby Bros.
Just pause there for a moment. So your recollection is that you had a conversation with Mr Rob (sic) Battersby is it?‑‑‑Yes.
Do you remember where this conversation took place?‑‑‑No, I don't.
It was at Murrin Murrin?‑‑‑It was at Murrin Murrin and the only place it could have – whilst I don't remember where it took place, the only place it could have taken place was at the aerodrome and specifically either on the work site, on the runway, that is, or at the terminal during a smoko or lunch break."
At T112 and T114 Mr Thomas said:
"O'SULLIVAN, MR: Thank you. Returning to where we were, you indicated that this backhoe operator has dug a trench and he stopped short by a factor of I think you said half a metre or metre from where you thought the electrical cable was located?‑‑‑Yes.
And your evidence has been that you then needed to excavate that remaining half metre to a metre by hand?‑‑‑Yes.
And you approached Battersby Bros in regard to the use of Mr Alan Harvey to do that work?‑‑‑Yes.
When you approached Mr Rob (sic) Battersby in regard to that work, was it your intention to actually employ Mr Harvey direct and did that take place or in fact was it something akin to a labour hire arrangement? Who ended up employing this bloke?‑‑‑Alan Harvey was still paid by the Battersby Bros. Aerodrome Management Services paid the Battersby Bros for the use of a labourer.
In this instance Mr Harvey?‑‑‑Mr Harvey, yes.
When he was doing this proposed work, who was he to be directed and supervised by?‑‑‑He was directed and supervised by myself.
And that was agreed with Mr Rob (sic) Battersby?‑‑‑That was agreed by Rob (sic) Battersby.
What was agreed in regard to the provision of tools and equipment?‑‑‑That Aerodrome Management Services would provide those tools and equipment which I supplied to Alan Harvey.
Did you reach an agreement regarding the rate to be paid?‑‑‑Rob (sic) Battersby and myself reached a rate to be paid.
What agreement or arrangement was entered into regarding actual payment? Did bits of paper pass between you?‑‑‑No, it was all done on a verbal agreement and the amount of hours was reflected again on the daily docket as per we would use for a machine hire but on this occasion it was just a daily docket, and it was also entered on that spreadsheet that I spoke about before.
Correct me if I'm wrong: in terms of the logistics of payment, a similar arrangement was entered into. There was a daily docket and, what, you were invoiced thereafter and you paid on the invoice?‑‑‑That's correct.
When he was working – I should jump ahead here a little bit. What happened on the morning of 17 August 1998?‑‑‑We are actually executing the work, as mentioned before, where we had to hand‑dig the trench back to the existing cable. I actually put paint marks on the ground where I thought the cable was located and indicated a depth to Alan, the depth that the cable should be. I left him with tools such as crowbars, picks, and shovels and he commenced to dig along to find that cable.
You gave him some instructions?‑‑‑Yes.
Was there any confusion as to who was directing who?‑‑‑No.
Did either of the Battersby brothers attend this particular meeting between yourself and Mr Harvey?‑‑‑No.
Did Mr Harvey question the instructions you gave him?‑‑‑No. There may have been some discussion on where the cable should be but we worked out a logic in where it should be by looking at the obvious location of the cable further up the runway and trying to extrapolate from there where the cable is located, but other than that there was no disagreement or argument on how the work should be done at that stage.
He carried out the works?‑‑‑He carried out the works. I did drop back from time to time to see him and Janet Mugge, who was working up the trench further, to check on their progress and to see that they were okay. It was recognised that the gravel was compacted and therefore hard and I attempted to get hold of a kanga hammer, that's an electronic jackhammer. Coates Hire had a hire office on site. Unfortunately they didn't have one and couldn't get one within several days.
During the course of the day you indicated you popped back occasionally to see how things were going. Is it the fact that during the course of that day he did as he was told, as you had instructed him?‑‑‑Yes.
Was there anybody else giving him instruction or direction?‑‑‑No."
Mr Reg Battersby's evidence in examination‑in‑chief was as follows at T206 – T207.
"NUGAWELA, MR: I see?‑‑‑So Alan was in his truck on the next day. This was before I went out there to start loading trucks and Kevin approached me some time in the morning – I couldn't tell you what time or I don't even know what day it was.
Yes?‑‑‑He approached me and just asked me if we had a spare labourer or driver or whatever.
Yes?‑‑‑I said, 'The only bloke I've got – well, we won't need two water trucks. We could ask one of those.' So ‑ ‑ ‑
Can you pause there? When Mr Thomas asked you whether you had a spare driver or worker, did he say what for? Did he tell you what for?‑‑‑Yes. He asked me if – he wanted to locate some cables down the far end, which was the northern end I think, from memory, on the airstrip.
Please continue; and you said?‑‑‑So one water truck was wagoning in a load, which would have been the semi‑water cart, which holds a lot more water, twice the volume, and the one Alan Harvey was on was the eight‑wheeler. It's a smaller truck. Alan was there in his truck, so I approached Alan. I did say to Kevin, I said, 'I'll go and approach Alan and see if he'd like to do it.' I said, 'I won't hold it against him.' So I went up to Alan and just said to him, 'Look, there's a job down the end of the airstrip to do with Kevin Thomas if you want to do it. It's up to you. If you don't want to do it you sit in your truck' because he still gets paid one way or the other by us, by Battersby Bros.
What did Mr Harvey say?‑‑‑Alan said to me, 'By all means.' He said, 'I'd rather go and do a bit of physical instead of sitting in the truck all day.' So Alan decided to ‑ ‑ ‑
I see. Did you direct him or command him to go and work for Kevin Thomas?‑‑‑No. I assume I would have told him to go and see Kevin Thomas.
Yes, but did you say he must do the work?‑‑‑No.
All right?‑‑‑No. He had two options: he could sit in his truck or do the work, but he offered to hop on the shovel."
Mr O'Sullivan cross‑examined Mr Reg Battersby as follows at T207 and T208:
"Mr Battersby, I'll be brief. Your evidence just was that you approached Mr Harvey and indicated that that work was available. He was going to be paid by you anyway. You asked whether he was interested and he said yes. Once he had volunteered to do that work it was the understanding, was it not, between you and Mr Thomas that you and Mr Harvey would work as directed by Mr Thomas. He would do as Mr Thomas wanted him to do?‑‑‑That's correct.
It's also the case that because this work was being performed by Mr Harvey under the supervision or control of Mr Thomas you were then going to or Battersby Bros were then going to invoice Aerodrome Management Services for the labour provided by Mr Harvey?‑‑‑Yes.
And that would be reflected in the daily hire docket?‑‑‑In the daily hire docket, yes.
You did in fact invoice for the labour performed by Mr Harvey?‑‑‑I assume I have, yes; it would have been but I haven't got no documents on there.
If Aerodrome Management Services was invoiced it would have been at the agreed rate, an agreed labour rate, whatever it was?‑‑‑It would have been, yes, whatever it was, yes."
On the evidence before me, it is patent that the contract entered into by the defendant and Battersby Bros was not for Battersby Bros to execute any work at all. The contract was to provide the defendant with the plaintiff's labouring services. Accordingly, I find that the agreement reached by the defendant and Battersby Bros was not for the execution of any work by Battersby Bros.
Was the contract between the defendant and Battersby Bros a contract for the execution of any work under Battersby Bros? At the time that Mr Thomas and Mr Reg Battersby entered into the contract for the provision of the plaintiff's services as a labourer, it is beyond dispute that the defendant was to be solely responsible for directing, supervising, controlling and guiding the plaintiff in the execution of the work of digging the trench. The defendant agreed to supply all tools and equipment. Mr Reg Battersby sought no role whatever in the execution of the works. There is no evidence that Battersby Bros had or even sought to have an overriding right of supervision over the plaintiff whilst he was digging the trench. There is no evidence that Battersby Bros checked on the activities of the plaintiff in the course of digging the trench. Mr Reg Battersby gave evidence that at the time he entered into the contract with the defendant he had no work for the plaintiff to do. The clear effect of Mr Reg Battersby's evidence was that once the plaintiff had decided he would dig the trench, he was content to pass complete control of the plaintiff to the defendant while the plaintiff performed that work. In my opinion the agreement reached between the defendant and Battersby Bros was for the plaintiff to dig the trench under the authority, control, direction and guidance of the defendant rather than Battersby Bros.
I do not accept Mr O'Sullivan's submission that the execution of the work was under Battersby Bros because it agreed to provide the services of the plaintiff to the defendant. Whilst it is true that Battersby Bros agreed to provide the plaintiff's services to the defendant that does not equate with a contract for the execution of work under the contractor. In my view more is required that the mere agreement to provide the plaintiff's labour. The contractor must have some authority, control, direction or guidance over the plaintiff as he executes the particular work agreed to in the contract. In this case the evidence falls short of establishing that the contractor had that right.

Conclusions

I find that although there was a contract between the defendant and Battersby Bros whereby Battersby Bros supplied to the defendant the plaintiff as a labourer for the purpose of digging a trench, that contract was not for the execution of any work by or under the contractor. Rather, the contract was for the execution of work by or under the principal. In the circumstances, s 175(1) of the Act does not apply. It follows that the plaintiff is not obliged to comply with the requirements of s 93E(3) of the Act and is entitled to damages flowing from the defendant's admitted negligence.

Orders

At the commencement of the trial a minute of agreed facts was provided to me in which the parties agreed to the quantum of damages payable to the plaintiff in the sum of $250,000 exclusive of both costs and benefits paid to date. I am prepared to make an order giving judgment to the plaintiff in the sum of $250,000. I will hear further from counsel as to the precise form of the order and costs.