Hill v WorkCover Queensland

[2005] QSC 257

SUPREME COURT OF QUEENSLAND

CITATION:

Hill v WorkCover Queensland [2005] QSC 257

PARTIES:

LEONARD MICHAEL HILL
(applicant)
v
WORKCOVER QUEENSLAND

(respondent)

FILE NO/S:

BS 5315 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

13 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

22 July 2005

JUDGE:

Moynihan J

ORDER:

1.   Application dismissed.

CATCHWORDS:

WorkCover Queensland Act 1996;

Jones v Insurance Commissioner [1940] QWN 40;
Simmons v Heath Laundry Co [1910] 1 KB 543;
Wood v Insurance Commissioner [1940] QWN 39;

Zuijas v Worth Bros Pty Ltd (1995) 93 CLR 561.

COUNSEL:

Mr J Lee for the applicant;

Mr S Sapsford for the respondent.

SOLICITORS:

O’Reilly Lillicrap Solicitors for the applicant;

WorkCover Queensland; Statutory Legal Services Unit for the respondent.

1. MOYNIHAN J: The applicant seeks a declaration that he is a “worker” within the meaning of that term as used in the WorkCover Queensland Act 1996 (“the Act”).

1. The applicant is a jockey who was injured in a riding accident on 11 September 2002 and seeks to pursue a claim for common law damages.  To do so he has to be a worker in terms of the Act and the respondent contends that he is not.

1. The point is a narrow one.  The primary facts are not contentious and the application turns on whether the applicant comes within an exclusion to which it will be necessary to refer.

1. Schedule 2 of the Act defines who is and who is not a worker for the purpose of being covered under the Act. Part 1 of the Schedule deals with who is a worker and Part 2 with who are not. A person who is a worker has entitlements under the Act, a person who is not may enter into a separate contract of insurance pursuant to s 28.

1. An agreement between WorkCover Queensland and the Queensland Thoroughbred Racing Board pursuant to s 28 deals with jockeys and the respondent contends that the applicant is not a worker in terms of the Act and is compensable only in terms of that agreement.  The applicant therefore brings this application.

1. The applicant deposes that horse trainers would ask him to do track work with one or more horses and for his opinion about the horse’s performance, its capabilities or potential as a racehorse and how best to train it.

1. In exchange the trainer would agree to give the jockey the option of riding the horse or horses ridden pursuant to that arrangement if it was running at forthcoming race meetings.  If a jockey exercised the option he would get a race fee for the ride together with any additional gratuity or payment if the horse won.

1. A trainer named Devine approached the applicant on 9 September 2002 to work a horse on the basis of an arrangement such as that referred to earlier.  On 10 September 2002 the applicant did so and reported that the horse “worked nice”.

1. Devine then asked the applicant whether…