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Humberstone v Northern Timber Mills

Humberstone v Northern Timber Mills

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Case Copied 16 November 1949 33 min read

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79 CLR 389

HUMBERSTONE

NORTHERN TIMBER MILLS

ON APPEAL FROM THE SUPREME COURT OF Workers' Compensation (Vict.)-" Worker -Person regularly and exclusively

engaged in carrying goods in own truck for one firm-Payment on weight-mileage basis-Whether servant or independent contractor-Contractor agreeing to perform work not incidental to trade or business regularly carried on by him- Enters MELBOURNE, into a contract -Statute-Retrospective operation-Workers Compensation Oct. 24, 25. Act 1928-1946 (No. 3806-No. 5128) (Vict.), 8. 3 (1), (6).

Section 3 of the Workers' Compensation Act 1928-1946 (Vict.) provides :- By sub-s. (1), that (subject to certain exceptions) " ' worker' means any

who has entered into or works under a contract of service Rich and Dixon or apprenticeship or otherwise with an employer." By sub-s. (6) (which was inserted in the Act in 1946) 'Notwithstanding anything in this Act or any law where any person (in this sub-section referred to as ' the principal ') in the course of and for the purposes of his trade or business enters into a contract with any other person (in this sub-section referred to as 'the con- tractor ')-(a) under or by which the contractor agrees to perform any work not being work incidental to a trade or business regularly carried on by the contractor in his own name or under a firm or business name and (b) in the performance of which the contractor does not either sublet the contract or employ workers or although employing workers actually performs some part of the work himself-then for the purposes of this Act the contractor shall be deemed to be working under a contract of service with an employer and the principal shall be deemed to be that employer."

Held that S. 3 (6) applies only to contracts entered into after it came into operation in 1946.

H. had originally held himself out as a carrier, prepared to carry for any person who sought his services. Since 1924, however, he carried goods solely

79 CLR 390

for the respondent firm, except in a few instances in which, after having delivered the respondent's goods to its customers, he carried back loads at their request. He mentioned to the respondent that he was doing so, but he did not account for any moneys that he might have received on account the back loads. In his work for the respondent he used his own motor truck, and he bore the cost of its maintenance, including the cost of the petrol consumed. He took out a carrier's licence annually in his own name and had painted on his truck his own name with the description 'Carrier." On each working day he attended at the respondent's premises at the same time and worked substantially the same number of hours, but there was no evidence that he was bound to do SO. He was paid weekly on a weight- mileage basis. within the meaning of the Act. They did not show that he was employed under a contract of service with the respondent…

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.

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Details

Case: [1949] HCA 49
Decision Date: 16 November 1949

CaseChat Overview and Summary

The case of *Humberstone v Northern Timber Mills* concerned an appeal to the High Court of Australia from the Supreme Court of Victoria. The appellant, the widow of W. R. C. K. Humberstone, sought workers' compensation following her husband's death. Mr. Humberstone had been employed by the respondent firm, Northern Timber Mills, to carry goods in his own truck. The central dispute revolved around whether Mr. Humberstone was an employee (a "worker" under a contract of service) or an independent contractor.

The legal issues before the court were twofold: firstly, whether there was sufficient evidence for the Workers' Compensation Board to find that Mr. Humberstone was a "worker" within the meaning of the Workers' Compensation Act 1928-1946 (Vict.) under a contract of service; and secondly, if he was not a worker under the general definition, whether a specific amendment to the Act, section 3(6), deemed him to be a worker. This latter issue involved determining whether the work performed by Mr. Humberstone was "not incidental to a trade or business regularly carried on by the contractor" and whether section 3(6) applied retrospectively to contracts entered into before its commencement.

The High Court, affirming the decision of the Supreme Court of Victoria, held that Mr. Humberstone was an independent contractor and not a worker under a contract of service. The court reasoned that the control exercised by Northern Timber Mills over Mr. Humberstone was not sufficient to establish a master-servant relationship. Key factors included Mr. Humberstone's ownership and maintenance of his truck, his bearing of operational costs like petrol, his annual carrier's licence, and the inscription of his own name as "Carrier" on his vehicle. The court also determined that section 3(6) of the Act, which deemed certain contractors to be workers, did not apply to Mr. Humberstone. This was primarily because the work he performed was incidental to his trade or business as a carrier, and secondly, because the sub-section was held to apply only to contracts entered into after its commencement in 1946, whereas Mr. Humberstone's arrangement with the respondent was a continuing contract that predated this amendment.

Consequently, the High Court dismissed the appeal, upholding the Supreme Court's finding that there was no evidence upon which the Workers' Compensation Board could have concluded that Mr. Humberstone was a worker within the meaning of the Act. The appellant's claim for workers' compensation was therefore denied.

Orders