Higham v Graham Poulson & WorkCover Authority of NSW
[2004] NSWWCCPD 27
•17 May 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Higham v Graham Poulson & WorkCover Authority of NSW [2004] NSWWCCPD 27
APPELLANT: John Wayne Higham
FIRST RESPONDENT: Graham Poulson
SECOND RESPONDENT: WorkCover Authority of New South Wales
INSURER:Uninsured Liability and Indemnity Scheme
FILE NUMBER: WCC 4262-2002
DATE OF ARBITRATOR’S DECISION: 27 June 2003
DATE OF APPEAL DECISION: 17 May 2004
SUBJECT MATTER OF DECISION: Whether the Appellant is a worker or deemed worker. Whether the decision is against the evidence and the weight of the evidence. Whether relevant evidence has not been taken into account.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined ‘on the papers’
REPRESENTATION: Appellant: Liston & Loveband, Lawyers and Conveyancers
First Respondent: Lamrock’s Solicitors and Attorneys
Second Respondent: WorkCover Authority of NSW
ORDERS MADE ON APPEAL: The decision of the Arbitrator is revoked and the following decision is made in its place: The Respondents are not liable for payment of workers compensation to the Appellant.
No order is made as to costs.
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 July 2003, John Wayne Higham (‘the Appellant/Mr Higham’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 27 June 2003.
The First Respondent to the Appeal is Graham Poulson (‘the First Respondent/Mr Poulson’).
The Second Respondent is the WorkCover Authority of NSW under the Uninsured Liability and Indemnity Scheme (‘the Second Respondent/WorkCover’).
The matter was referred to me for review on 14 January 2004. I granted leave to appeal on 19 January 2004, and issued directions allowing the parties to file final submissions, notwithstanding the comprehensive submissions already made by all parties following the lodgment of the appeal.
The basis of the Appellant’s claim for compensation was that he suffered a total incapacity for work as a result of an injury that arose out of or in the course of his employment with the First Respondent. The Appellant claims that on 13 March 2001, he suffered an injury to his back and right shoulder, for which compensation is payable in the form of weekly benefits, permanent impairment, pain and suffering and medical expenses. At the time of the injury, the First Respondent states that he was not insured for the purpose of workers compensation, and has at all times maintained that he was and is not an employer, and that he did not employ the Appellant in any capacity. The Appellant notified the First Respondent of the injury on 13 March 2001, and subsequently, lodged a claim with WorkCover under the Uninsured Liability and Indemnity Scheme (‘ULIS’), on 23 July 2002. On 31 October 2002, WorkCover advised the Appellant that it denied liability for the claim. On 15 November 2002, the Appellant lodged an ‘Application to Resolve a Dispute’ (‘the Application’) in the Commission.
At the time that the Appellant suffered the injury, he had been living temporarily at the residence of the First Respondent, who was his long time friend. The Appellant injured himself when he lost his balance and fell from a ladder in the First Respondent’s garden, after having lopped several branches from the First Respondent’s tree, which was overhanging a neighbouring garden. The Appellant had ceased working for his usual employer as a plumber, a short time prior to the accident. The Appellant and the First Respondent agree that Mr Higham was not required to pay his usual monthly contribution towards the household expenses for the last month or so, because he had been made redundant and because his departure from Mr Poulson’s residence was imminent. Mr Poulson had indicated his intention to bring his girlfriend to the house, to reside with him. Mr Higham conducted various handyman chores around the First Respondent’s house during that time. He claims that there was an agreement between the parties in the nature of a contract, in regard to the work he was doing, and that as such, he was a deemed worker. He claims that the financial contribution was forgone by the First Respondent, in exchange for work done. The First Respondent claims that, by reason of their friendship, he had allowed Mr Higham to live at his home rent free, for this short period while he was unemployed. Mr Poulson claims that although the two had on some occasions spoken informally of the work that was needed around house, Mr Higham had taken it upon himself, and volunteered to do the work, entirely because of their friendship. Mr Poulson claims that there was never an employment agreement between the pair.
The principal issue in dispute before the Arbitrator, according to the Arbitrator, was whether the Appellant was a worker within the meaning of section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), or a deemed worker pursuant to schedule 1, clause 2 of that Act.
THE DECISION UNDER REVIEW
The Certificate of Determination dated 27 June 2003, records the Arbitrator’s decision as follows:
“1.The Applicant is not a worker within the meaning of Section 4 of WIMWC Act of 1998, nor is he a deemed worker pursuant to Schedule 1.cl 2 work [sic] Injury management [sic] and Workers Compensation Act 1998.
2.That there be no order as to costs.”
The Appellant disputes the Arbitrator’s determination, on the grounds that the decision is against the evidence; that the decision is against the weight of the evidence; that the Arbitrator failed to consider relevant evidence, and that the Arbitrator misdirected herself as to the law.
The First Respondent and the Second Respondent each submit that the Arbitrator’s decision is correct, and that the determination should stand.
The First Respondent submits that the Appellant should pay his costs of the appeal, “on the basis that when considering the Statement of Grounds for Appeal the Appeal is frivolous, vexatious or made without proper justification and that the Applicant has filed the Appeal in the full knowledge that the First Respondent is uninsured and is liable to incur additional and unwarranted legal costs in responding to the Application for Leave to Appeal.”
JURISDICTION TO HEAR THE APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act which provides:
352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The Appellant submits that the amount in issue on appeal is at least $5,000, which is made up of $9,000 for 15% permanent impairment of the back under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’), and $16,000 for 20% permanent impairment of the right arm at and above the elbow under same section. The Appellant also claims $16,666 for pain and suffering under section 67 of the 1987 Act, being one third of a most extreme case, as well as medical expenses under section 60 of the 1987 Act, and weekly compensation, for total incapacity, at statutory rates from 13 March 2001 and continuing. The First Respondent and the Second Respondent agree that this is the amount at issue. It follows that the amount of compensation at issue in this appeal is in excess of $5,000, and the requirement of section 352(2)(a) is satisfied.
The Appellant submits that the amount at issue on appeal is 100% of the amount that was at issue before the Arbitrator and, therefore, the threshold requirement under section 352(2)(b) of the 1998 Act, is satisfied. However, the First Respondent submits that, as no amount of compensation was awarded by the Arbitrator, the amount at issue on appeal cannot reach 20% of the amount awarded. He submits that leave to appeal should not be granted.
The Second Respondent cites the decisions in Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5 (‘Mawson’) and Sheridan v David Anthony Clarke t/as Freestyle Marine Sports [2003] NSW WCC PD 4 (‘Sheridan’) in relation to section 352(2)(b), stating that if the “applicant’s medical evidence on incapacity were to be accepted, the requirements set out in paragraphs (a) and (b) of Section 352(2) would be established.”
In applying Mawson, Deputy President Fleming said in Sheridan at paragraph 10:
“I do not accept the submission that where the Applicant does not succeed in gaining any award there can be no grant of leave. Section 352 refers to ‘the amount of compensation at issue on the appeal’. Whilst section 352(1)(a) and (b) are clearly cumulative, there is no place for the application of subsection (b) where an award has not been made (see the comments of Deputy President Byron in Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5).”
I reaffirm my decision of 19 January 2004, to grant leave to appeal in this matter.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both the First and Second Respondents submit that the application for leave to appeal and the substantive appeal can be determined on the papers.
The Appellant submits that this appeal should not be determined on the papers as it involves important questions of law that should be considered through dialogue “between the bench and the parties’ legal counsel”. In light of this submission and previous, detailed submissions that had been made by all parties, on 19 January 2004 I granted the parties the opportunity to make final written submissions. No further submissions were made on this or other issues. A file note on the relevant file states that contact was made with the parties in late February 2004 and all indicated that they had no further submissions to make.
The parties were afforded ample opportunity to lodge a number of written submissions in the Commission prior and subsequent to, the matter being referred to me for determination. The written submissions are clear and comprehensive.
Having regard to the documents that are before me, and on a consideration of the submissions of the parties, I reaffirm my decision of 19 January 2004 that I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The primary issue in dispute on appeal is at first glance, whether the Appellant is a worker within the meaning of section 4 of the 1998 Act, or a deemed worker pursuant to Schedule 1 clause 2 of that Act. However the Solicitors for the Appellant state in their submission of 17 September 2003 that “the hearing was on the threshold issue of whether the appellant was a deemed worker pursuant to the Workplace Injury Management Act [sic] Schedule 1.2”, and further that “The arbitrator ruled that the further questions of injury and amount of compensation were to be dealt [sic] at a later hearing if the applicant was found to be a deemed worker.” In further written submissions dated 24 October 2003 it is stated, “It has never been the applicant’s case that he was entering an employer/employee relationship. It has always been the applicant’s case and has been clearly set out in the applicant’s application and submissions that he was a deemed worker pursuant to Schedule 1 Clause 2 of the Workplace Injury Management Act [sic].” Again at paragraph 6 of his submissions of 17 November 2003 the Appellant’s Solicitor states, “At no stage in these proceedings has the applicant ever asserted that he believed he was in an employer/employee relationship. It is the applicant’s case that the relationship is one of a deemed employee under WIM Schedule 1.2. There was no employer/employee relationship but there was a contract.” A perusal of the Application and other relevant material before the Arbitrator supports the Appellant’s submission in this regard and consequently, I accept that it has never been claimed by him and is not now claimed by him, that in his relevant dealings with the First Respondent, there existed an employer/employee relationship. In the circumstances, whether or not the Appellant was a worker within the definition of section 4 of the 1998 Act has never been an issue for him and accordingly, is not in dispute. However, he does claim that a contract was established for carrying out the work and that he was a deemed worker. This is in dispute.
Also in issue in this appeal is whether the decision of the Arbitrator was against the evidence and against the weight of the evidence, whether the Arbitrator failed to consider relevant evidence, and whether the Arbitrator misdirected herself as to the law.
EVIDENCE
The following documents relevant to the decision made, were in evidence before the Arbitrator and are in evidence before me in this appeal against that decision:
For the Appellant
·Statement of John Wayne Higham, dated 20 March 2002
·Statement of John Wayne Higham, dated 23 July 2002
·Statement of John Wayne Higham, dated 9 October 2002
·Statement of John Wayne Higham, dated 4 April 2003
·Letter from ULIS to John Wayne Higham, dated 31 October 2002
For the First Respondent
·Statement of Graham Poulson, dated 15 October 2002
·Statement of Kenneth Poulson, dated 2 April 2003
·Statement of Steve Hall, dated 20 May 2003
A transcript of the proceedings before the Arbitrator, including a record of the sworn evidence of the Appellant and the First Respondent, the written submissions of the parties that were before the Arbitrator and those that have been lodged in this appeal, are also before me.
SUBMISSIONS
For the Appellant Worker
The Appellant’s submissions are comprehensive but may be summarised as follows:
·The Arbitrator erred, in that her decision was against the weight of the evidence and she failed to consider relevant evidence, namely that the Appellant paid for much of the material for house repairs, that both men journeyed together to pick up those materials, and that the Appellant received a reprieve in rent for the same period. The Arbitrator should have found that there was prima facie evidence of a bargain between the parties and, in the absence of uncontradicted evidence to the contrary, should have found that there was a contract between the parties to perform the work. In his Statement of Grounds for Appeal, the Appellant submitted, “The [Arbitrator] should have found that the applicant had an expectation of payment in return for the work done and materials provided, namely the waiver of rent. The arbitrator should have found as a necessary inference that the applicant had an intention to enter into a legal relationship. The arbitrator should have found that the respondent so conducted himself that in allowing the applicant to perform the work and pay for the materials and in waiving the applicant’s rent that as an objective matter one might reasonably infer the intention to enter into a legal relationship and the existence of an agreement between the parties that the applicant perform the work and pay for the materials and that the respondent waive the applicant’s rent.”
·The Arbitrator erred by misinterpreting the evidence given by the Appellant in statements, as to whether he volunteered to prune Mr Poulson’s tree, or whether there was an agreement between them that he should do it. It is submitted that the Appellant maintained his position under cross-examination, that there was an agreement that he be let off the rent in return for doing the work. It is also submitted and was put to the First Respondent, that allowing the Appellant to pay for the materials without offering to reimburse him, was inconsistent with gratuitously letting him off payment of rent for a month, because he was out of work.
·The Arbitrator made an error as to fact. In the absence of contradicting evidence, the Arbitrator should have accepted there was a contract between the parties. The Appellant not only maintained his position throughout his statements and cross-examination, that there was an agreement as to repairs and rent, in fact he never relented, and at worst, was unsure. The Arbitrator erred in disregarding the evidence supporting the existence of a contract.
·The existence of a contract is to be determined by the decision maker objectively, upon a proper construction of the words and actions of the parties. The Arbitrator erred in looking to the social relationship between the parties and not taking into account the manifestation of mutual assent that occurred, when deciding that there was no contract. This was the mistake the Compensation Court of NSW found that the Commissioner had made in Lindeboom v Goodwin (2000) 21 NSWCCR 297 (‘Lindeboom’).
·The Arbitrator misdirected herself as to the applicable law. She relied upon Teen Ranch Pty Limited v Brown (1995) 87 IR 308 (‘Teen Ranch’), rather than Lindeboom. Campbell CJ in Lindeboom noted that a friendship does not preclude a contract arising between those friends, the existence of which is established objectively. Teen Ranch is inapplicable as it refers to a particular type of social relationship that gives rise to a presumption of fact that a legal and binding relationship was not intended. That is not the case in the relationship between the Appellant and the First Respondent. In any event, such a presumption of fact is rebuttable. The Arbitrator has erred in considering the relationship as one only of camaraderie.
·The Arbitrator should properly have concluded that the Appellant was a deemed worker pursuant to schedule 1.2 of the 1998 Act.
For the First Respondent/Mr Poulson
The First Respondent’s submissions may be summarised as follows:
·The Arbitrator made no error in regard to the Appellant’s evidence. The evidence was considered by the Arbitrator, but not accepted. An Arbitrator is entitled to reach conclusions on evidence after comparing, reconciling, and evaluating the weight to be afforded it in light of conflicting evidence (Chambers v Jobling [1986] 7 NSWLR 1 (‘Chambers’)).
·The Appellant has not demonstrated that the Arbitrator made any legal, discretionary or factual errors.
·The Appellant has not given particulars of his contention that the Arbitrator’s decision was against the evidence, and against the weight of the evidence. Consequently, this ground is not made out.
·It was within the Arbitrator’s discretion to rely on the case of Teen Ranch, as she found the factual situation in this matter to be analogous to that case. The mere fact that other cases exist can be of no assistance to the Appellant.
·The claim by the Appellant that his evidence was uncontradicted, is flawed. Such evidence was utterly contradicted by the First Respondent. The Arbitrator considered both versions of events, and it was within her discretion to prefer the evidence offered by the First Respondent.
·The Arbitrator did not err in finding that no contract existed between the Appellant and First Respondent. The onus is on the Appellant to prove the parties intended to enter into a legal relationship (Cudgegong Soaring Pty Limited v Harris (1996) 13 NSWCCR 92 (‘Harris’)), and the Appellant did not discharge that onus.
·The First Respondent agrees with the submission of the Second Respondent in Jones v Padavatton [1969] 1 WLR 328 (‘Padavatton’), “regarding an objective test and the court being required to consider what the parties said and wrote in the light of all surrounding circumstances.” It is submitted that the Arbitrator correctly discharged her obligation to consider all of the relevant evidence and did not fall into error in deciding that the Appellant had failed to discharge his onus.
·The First Respondent submits that the Appellant’s claim is frivolous and vexatious, and was constructed in the full knowledge that the First Respondent, being uninsured, would incur unwarranted costs in the appeal. Accordingly, the Appellant should be ordered to pay the First Respondent’s costs of the appeal.
For the Second Respondent/WorkCover Authority
The Second Respondent’s submissions may be summarised as follows:
·The Arbitrator made no errors and that her decision was correct.
·The evidence of the Appellant was not uncontradicted. The First Respondent stated, and the Arbitrator accepted, that the Appellant’s rent had been waived irrespective of the duties he performed, as the relationship was one of ‘mateship’.
·The submission that one authority should be accepted over another, overlooks the point. Each case must be decided upon its individual facts, and the proper test is whether there was an intention to created legal relations (Padavatton).
·An application of the case of Lindeboom is not of assistance in this matter as the principles set out therein can be distinguished from this case. In contrast to the relationship between the Appellant and First Respondent in this matter, the parties in Lindeboom knew each other, but did not have a close relationship.
·The conclusion of the Arbitrator in regard to the Appellant being unable to give evidence that the First Respondent specifically requested him to lop branches off the tree is consistent with the evidence given, and as a consequence, no error has been made.
·The Arbitrator did not err in finding that the Appellant was unable to give evidence of an intentional binding legal relationship between the parties. The Appellant himself stated that he did not believe he was entering into such a legal relationship, and the case of Teen Ranch supports the Arbitrator’s decision to give the Appellant’s statement considerable weight. The Arbitrator was entitled to rely on the Appellant’s statements.
·The Arbitrator did not accept the evidence of the Appellant that the obligation to pay rent was forgiven in exchange for work. Therefore, the Arbitrator could not, as the Appellant suggested, have moved to the logical conclusion that there was a binding legal relationship between the parties.
DISCUSSION AND FINDINGS
The critical consideration in this appeal is whether a binding agreement existed between the parties for the carrying out of the work that was done, in order that the Appellant was a deemed worker pursuant to Schedule 1, clause 2 of the 1998 Act.
The arrangements between the parties
It is not in dispute that Mr Higham and Mr Poulson were friends and that from time to time over a number of years, Mr Higham would stay with Mr Poulson at his home in Wentworthville. Initially, Mr Higham stayed with Mr Poulson at no cost to himself. At some time in 1998 an agreement was reached between them that when Mr Higham stayed for extended periods, he would contribute $360 per month towards household expenses and bills, but that he would purchase his own food. The parties agree that they got on well, and that the arrangements were flexible and suited them both. It is not disputed that Mr Poulson often stayed with his girlfriend overnight from some time in 1999, and that Mr Higham was left alone in Mr Poulson’s house. Both agree that in or about January 2001 Mr Poulson informed Mr Higham that he intended to move his girlfriend into the home around March or April that year, and that he would require Mr Higham to move out. However, in February of that year, Mr Higham lost his job and as a consequence, was unemployed at the time of the events that led to the disputed claim in this matter.
It is not in dispute that in December 2000, the parties discussed the need for some work to be done around the home. Mr Higham subsequently undertook this work. The parties disagree as to precisely what work was to be carried out and the basis upon which Mr Higham did it. Mr Higham claims that the work agreed to be done included the pruning of a tree at the rear of the house that was interfering with the roof and gutters. Mr Poulson claims that he has no recollection of ever discussing the pruning of the tree with Mr Higham. Mr Poulson claims that he informed Mr Higham that he was not required to pay the $360 contribution for his last month in residence, given that he was unemployed. It had nothing to do with any work that Mr Higham undertook. This is at odds with the account provided by Mr Higham who claims that his usual contribution was forgone by Mr Poulson, in exchange for the work being done, including the lopping of the tree.
In order to ascertain whether the Arbitrator’s decision was against the evidence and the weight of the evidence, and whether she failed to consider relevant evidence, it is necessary to summarise and consider the relevant evidence put forward by the parties.
The written statements
In his statement of 20 March 2002 Mr Higham states that an agreement was reached between himself and Mr Poulson that Mr Poulson would let him off the payment of “a month’s rent of $360.00 in return for doing some work on the house including replacing guttering and fibro.” Mr Higham said:
“The fibro was at the front. There were two sheets which I supplied. I supplied $97.00 worth of guttering. I also supplied the fibro which cost $72.00. I noted that there were trees around the back which needed lopping as they were dropping blossoms into the gutters and onto the perspex roofing of the pergola. I mentioned this to Graham a couple of months before the date of the accident. I used to sit out the back and have a smoke. I said to Graham ‘Those trees need lopping.’ He said ‘I give you permission to do it.”
Mr Higham says that this conversation took place in December 2000. Mr Higham’s account of the subsequent conversation in February 2001 is as follows:
“He said ‘I’m going to have to tidy up the house before the girlfriend moves in.’ He then said ‘Could you do some work on the house if I let you off a month’s rent?’ I said ‘OK. What do you want done?’ He said ‘Replace the fibro and the gutter at the front.’ I said ‘Yes, I’ll do that and I’ll lop the trees as well.’ He said ‘Yes.’ That conversation took place about the end of February.”
Mr Higham says that he carried out the work between 1 and 13 March 2001, and fell from the ladder on 13 March while pruning the tree, sustaining his injuries as a result. Mr Higham reaffirmed his statement of events, in a subsequent statement dated 9 October 2002. He makes it clear that he did not at any stage regard Mr Poulson as his employer, but that they simply had an agreement that Mr Higham would undertake the work stated, in exchange for not paying the last month’s rent of $360. There was no written agreement between the parties in relation to these arrangements.
In his statement of 15 October 2002 Mr Poulson says that there was never a formal agreement regarding board or rent, but that they had a “mates agreement” for Mr Higham to make a contribution of $360 per month towards the household expenses and the telephone bill. In relation to the work on the house, he stated:
“After he lost his job, he offered to do some work on the house, he was aware that the guttering on the front, in front of the main bedroom, was rusting and needed replacing. He offered to replace that for me without charge prior to him moving out, as a return favour for living here. After he lost his job, I had said to him ‘don’t worry about paying’ as he had no money coming in. I considered that when he offered to do the gutter, it was a gesture of good will to a mate. He did that job, he supplied the guttering, I was not here when he did the work. I saw it after it was complete.”
Mr Poulson says that subsequently, they discussed the need to replace cracked or chipped sheets of fibro at the front of the house and he told Mr Higham that he would “like a hand” with the work. He states that when they went to pay for the materials Mr Higham said, “Don’t worry about this I will fix it up”, and he paid for the items. He says that he took this as another gesture of good will. He states that at no time did he ever offer to employ Mr Higham to do any of the work nor did he discuss any payment or any amount or gratuity for the work. “It was simply a reciprocal favour for a mate who had helped him out when he had lost his job.” Mr Poulson says that they did not discuss or plan any other work that would have involved Mr Higham. Before returning home at around 3.00 pm on 13 March 2001, he says that he saw Mr Higham driving his yellow Ford utility in the direction of the home at Wentworthville. When Mr Poulson arrived home Mr Higham informed him that he had fallen from the ladder and hurt himself at around 9.30 am that morning. According to Mr Poulson, Mr Higham said, “I was only trying to help you, I was trying to do you a favour.” Mr Poulson claims that he had no idea that Mr Higham was lopping the tree. He says that during their conversation, Mr Higham said that he might need to make a claim against Mr Poulson’s household insurance.
Mr Steven Hall, a friend of both parties, who also stayed in the Wentworthville premises from time to time, provided a statement, dated 20 May 2003, giving further background details about the living arrangements that were in place.
Sworn evidence of Mr Higham
In his sworn evidence before the Arbitrator on 17 June 2003, Mr Higham said that the contents of his written statements were true and correct. He gave evidence of having done work previously for Mr Poulson for which he had received no payment, except for the cost of some items and materials. He said that he first raised the need for the tree to be lopped in December 2000, and that Mr Poulson gave him permission to do it. He claimed that in a subsequent conversation in February 2001 Mr Poulson asked him to carry out some repairs to the house and that Mr Poulson let him off one month’s rent in return. Mr Higham said that he paid for the necessary materials but that Mr Poulson retained the receipt. At the conclusion of this work Mr Higham said that he took his ladder around to the back of the house on 13 March 2001 and was on the ladder, pruning the tree, when he fell and sustained his injuries. He said that he then had a shower and later drove to the bank to withdraw some money. He said that he went to the barber and then to the shopping centre at South Wentworthville. He then gave details of his injuries and treatment that he received.
Under cross examination Mr Higham again reaffirmed his version of events and the agreement with Mr Poulson, stating that hewas not short of money, and could get another job in any event. He repeated that Mr Poulson gave him permission to lop the trees during a discussion in December 2000. He said further,“I’m pretty sure it was mentioned when I said I’d do the repairs on the house.” However, when pressed he said that he was not positive about this. He said, “It was part of the deal, I suppose. I don’t know.” At page 49 of the transcript of the proceedings before the Arbitrator Mr Higham again said that Mr Poulson had given him permission in December 2000 to lop the tree, but that money was not an issue. He agreed that he had said earlier that he was not positive about whether the tree lopping was included in his arrangement to do the work agreed in February 2001 and that he had simply said, “It was part of the deal, I suppose.” He had no conversation with Mr Poulson about lopping the tree on the day that he was injured, and had himself taken the initiative to do so, on the basis that Mr Poulson had given him permission in December 2000. Ultimately, he said that he was not sure whether there had been any discussion at all between December and March, about lopping the tree.
Mr Poulson’s sworn evidence is that he did not recall any conversation taking place in December 2000 about lopping the tree. He said that in February 2001 Mr Higham had told him that he had had a “run-in” with someone at work and that he had been put off. Mr Poulson said that they had already agreed that Mr Higham would be leaving soon and in the circumstances, he told Mr Higham that he need not worry about putting in any more money to cover the household expenses. He had already paid for February. He said that this was the extent of the conversation and that there was never any discussion about Mr Higham doing work in exchange for the waiver of the rent. While he denied that there had been any discussion about Mr Higham doing work around the house at that particular time, he did concede that Mr Higham occasionally did do work from time to time “as a mate”. He agreed that Mr Higham had lopped a couple of trees in the back yard some years previously, but no payment for this work or any other work done, was discussed, agreed or made. Under cross-examination Mr Poulson said that he did not carry workers compensation insurance. He gave evidence of Mr Higham doing other work on previous occasions, such as replacing the guttering along the garage. Mr Poulson said that Mr Higham had purchased and paid for the materials himself. He said that Mr Higham was always noticing things that needed to be done. He also said that he considered that Mr Higham would have money saved as he had been paid well while employed. Mr Poulson insisted that foregoing the $360 on his part had nothing to do with any work carried out by Mr Higham.
The evidence given by Mr Higham in relation to the lopping of the tree on 13 March 2001, is unconvincing. He is unable to say with any certainty at all, that lopping the tree on that date was part of any deal that he said he had struck with Mr Poulson to carry out the other work, as a result of their conversation in February 2001. There is no real evidence of any conversation that links the lopping of the tree with this other work. Even Mr Higham himself, is only able to point to what is an unrelated conversation that allegedly took place in December 2000, when he said that Mr Poulson gave him permission to lop the tree. He concedes that no discussion of payment took place on that occasion. Mr Poulson has no recollection of any conversation regarding the lopping of the tree. Moreover, he is firmly of the view that foregoing the $360 on his part, and any work done by Mr Higham, were reciprocal favours, rather than the consequence of any agreement between them.
It is evident that Mr Higham occasionally helped around the home on a voluntary basis. There is no evidence that any previous work had been done by Mr Higham, other than on this basis. However, the evidence of each party as to the arrangements for undertaking the work in March 2001, is in direct conflict with the evidence of the other party. Nevertheless, it is clear that Mr Higham sustained no injury in carrying out the work on the house itself, whether alone or in company with Mr Poulson. The injury claimed, occurred when Mr Higham fell from his ladder while lopping the tree. Whatever the arrangements between Mr Higham and Mr Poulson for doing the repairs to the house, the evidence of any link between that work and the lopping of the tree is at best, quite tenuous. On a reading of the evidence it was in fact, not linked to or part of the other work done by Mr Higham. It was a voluntary and separate act arising substantially from an afterthought, and at best, following “permission” sought and granted some months earlier, without any discussion or agreement concerning payment. On the basis of the evidence, the Arbitrator was entitled to come to the view, with regard to the lopping of the tree, that no contract had arisen between the parties, and I find accordingly.
The Arbitrator found on the evidence, that there was no agreement between the parties for the waiver of the monthly contribution of $360 in exchange for work done, and that this was done on the part of each out of “camaraderie”. However, it is clear that there was little if any evidence that any kind of binding agreement existed between the parties in relation to the lopping of the tree, or even that it was any part of the work agreed between the parties. It is unnecessary therefore, to consider further, the nature of their arrangement.
In the circumstances, I find that the Arbitrator arrived at her findings on the evidence and the weight of the evidence, and that she did not fail to take relevant evidence into account.
However, as previously discussed, the Arbitrator was not required to decide whether the Appellant was a worker within the meaning of section 4 of the 1998 Act, as this was not an issue in dispute. The finding that Mr Higham is not a deemed worker pursuant to schedule 1, clause 2 of the 1998 Act, should stand. The decision of the Arbitrator in its present form is comprised essentially of findings as to the status of Mr Higham, in the circumstances of this matter. It follows from the findings made by the Arbitrator, with which I agree, that the Respondents are not liable for payment of workers compensation to the Appellant.
DECISION
The appeal is not allowed. However, having regard to paragraph 45 above, the formal decision of the Arbitrator is revoked and the following decision is made in its place: The First and Second Respondents are not liable for payment of workers compensation to the Appellant.
COSTS
While the First Respondent submits that the Appellant’s claim is frivolous and vexatious, there is no evidence before me to support that submission, including his contention that it was constructed in the full knowledge that the First Respondent would incur unwarranted costs in the appeal. In the circumstances no order is made as to costs.
Gary Byron
Deputy President
17May, 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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