Johns v Deaves
[2024] NSWPIC 549
•3 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Johns v Deaves & Anor [2024] NSWPIC 549 |
| APPLICANT: | Leslie Bruce Johns |
| RESPONDENT: | TONIA L DEAVES & RICHARD W FARRUGIA |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 3 October 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for permanent impairment compensation in relation to injury suffered to left leg and consequential scarring; applicant suffered an injury while mustering cattle at the respondents’ property on 23 April 2018; he alleges at that time he was a worker for workers compensation purposes; the fact of the injury is not in issue, however, the respondents deny the applicant was a worker and instead allege the applicant was a friend who regularly attended and stayed at the farm on a weekend and carried out unpaid farm work; parties agreed that if there was a finding in favour of the applicant on the issue of worker, the matter would be referred for medical assessment; oral evidence was taken in the matter, including that of the respective parties and of Mr Hellmann, the applicant’s former employer; Mr Hellmann’s evidence included a recounting of a conversation he had with the applicant several months before the injury in which the applicant told him he was working for the respondents on a weekend and being paid in cash by them for the work performed; Held – as an independent witness whose credit was not sought to be impugned, Mr Hellmann’s evidence is entitled to significant weight; Mr Hellmann’s evidence is broadly consistent with the applicant’s version of events and supports a finding the applicant was a worker in the employ of the respondents; on balance, the evidence discloses the applicant was an employee of the respondents and that he suffered an injury in the course of that employment; matter remitted to the President for referral for medical assessment. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant was a worker, as that term is defined under s 4 of the Workers Compensation Act 1987 in the employ of the respondent when injured in the course of his employment on 23 April 2018. 2. The matter is remitted to the President for referral on or after 9 October 2024 to a Medical Assessor to determine the permanent impairment arising from the following: Date of Injury: 23 April 2018. Body systems referred: left lower extremity (pelvis and hip). Method of Assessment: whole person impairment. 3. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments; (c) applicant’s Application to Admit Late Documents dated 19 July 2024 and attachments, and (d) respondents’ Application to Admit Late Documents dated 28 August 2024 and attachments. |
STATEMENT OF REASONS
BACKGROUND
On Monday 23 April 2018, Leslie Bruce Johns (the applicant) suffered an injury whilst at the farm of Tonya Deaves and Richard Farrugia (the respondents) known as Kurrajong Park.
On that occasion, the applicant and respondents were in the process of moving a herd of cattle across a road to take them to another farm when the herd split. The applicant was riding a quad bike from which he fell, landing heavily on his left shoulder and hip. The applicant was transported to Tamworth Bay Hospital where he underwent surgery to repair a fractured left hip and femur.
The applicant brings proceedings seeking payment of compensation for permanent impairment to his left lower extremity together with associated scarring brought about by the surgery. The respondent denies liability and alleges the applicant was not a worker as that term is defined in s 4 of the Workers Compensation Act 1987 (the 1987 Act).
The parties agree if there is a finding on the question of worker in favour of the applicant, then the matter will be remitted to the President for referral to a Medical Assessor to determine the degree of whole person impairment arising from the injury.
ISSUE FOR DETERMINATION
The parties agree that the only issue for determination is whether the applicant was a worker as that term is defined within the Workers Compensation legislation.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attend a hearing before me at Tamworth on 9 September 2024. On that occasion, Mr Young of counsel appeared for the applicant instructed by Mr Swan.
Ms Balendra of counsel appeared for the respondent and instructed by Mr Smith.The parties were unable to resolve the matter, and it proceeded to hearing by way of oral evidence and submissions.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (the Application);
(b) Reply;
(c) applicant’s Application to Admit Late Documents (AALD) dated 19 July 2024, and
(d) respondents’ AALD dated 28 August 2024.
Oral evidence
There was extensive oral evidence taken at the hearing of the matter. Evidence was given by Mr Hellman, the former employer of the applicant. Additionally, oral evidence was given by the applicant and by both respondents.
As the oral evidence in the matter concerns the only question in dispute between the parties, it is dealt with under the heading “Findings and Reasons” below, rather than summarised under this subheading.
FINDINGS AND REASONS
Whether the applicant was a worker employed by the respondents
The dispute surrounding whether the applicant was a worker is couched in slightly unusual terms compared with the usual nature of such disputes in this jurisdiction. Rather than the issue being whether the applicant falls within the definition of a worker or independent contractor, the dispute in these proceedings is whether he was simply a regular guest on the applicant’s property who assisted in providing unpaid farm work as a friend of the respondents, or whether he was employed and paid for the work which he carried out.
The matter proceeded on the basis that if there was a finding in favour of the applicant on the question of whether he received payment from the respondents for work carried out, then he would fall within the definition of a worker. The respondents did not raise an issue that, in the event the applicant was paid, he was an independent contractor rather than a worker.
It is appropriate to briefly summarise the evidence given by all of the witnesses, to the extent it addressed the question of whether the applicant was a worker.
Michael James Hellman
Mr Hellman employed the applicant as a trades assistant over the course of different businesses from 2001 to 2018. The applicant was employed by Mr Hellman on a full-time basis of a week day and reported directly to him.
Mr Hellman gave evidence he was aware the applicant attended at the respondents’ farm on weekends from time to time. Mr Hellman recounted a conversation he had with the applicant several months before the injury to the effect the applicant told him he was being paid cash by the respondents for working on the farm of a weekend.
Mr Hellman’s evidence was that until the time of the injury, the applicant generally worked with him Monday to Friday from 7.00am. His evidence was that the applicant did not miss Monday work with Mr Hellman because he was on the respondents’ farm.
Mr Hellman noted the applicant was to be on holidays from his employment with Mr Hellman for the week of 23 to 27 April 2018.
Mr Hellman described the applicant as a good worker. He noted the applicant struggles with reading and writing as he is largely illiterate. He acknowledged the applicant’s records show he received a payment from Mr Hellman on or about 27 April 2018, which Mr Hellman indicated would have been for work carried out in the period up to and before the date of injury.
In terms of his conversation with the applicant regarding working on the respondents’ farm, Mr Hellman stated the applicant informed him he was carrying out stock work and farm maintenance and that the respondents were paying him in cash.
Mr Hellman presented in a straightforward manner and is appropriately described as an independent witness in this matter. Although he does not have direct knowledge of the relationship between the applicant and respondents, in my view his evidence is entitled to significant weight, given he is an impartial witness whose credit was quite appropriately not sought to be impugned by either party.
The evidence of the applicant
The applicant acknowledged he was functionally illiterate and gave evidence that his statement had been read to him by his solicitor before he signed and adopted it. His evidence in relation to his conversation with Mr Hellman approximately six months before the injury at issue was broadly consistent, namely that he did work with cattle for “Rick” (the second-named respondent, Mr Farrugia) on weekends, together with driving tractors. The applicant stated he informed Mr Hellman he was paid by the respondents in cash.
The applicant’s evidence was that he was on holidays from his job with Mr Hellman for the week commencing Monday 23 April 2018, and that he intended to try working full time for the respondents that week, to see if he enjoyed the work. He stated he was tempted to work for the respondents because the rate of pay offered to him by Mr Farrugia was going to be higher than that paid to him by Mr Hellman.
It is not in issue that sometime before the injury in question, Mr Farrugia had offered the applicant a job working on the respondents’ farm. It is also not in issue that Mr Farrugia contacted the applicant’s father to discuss the benefits to the applicant of working for the respondents.
According to the applicant, he previously worked on the respondents’ property on weekends from Friday afternoon or evening until Sundays. He stated Mr Farrugia would often attend at the property on either Friday afternoon or Saturday morning. The applicant stated he usually arrived at the property from Friday afternoon.
On the weekend before the injury of 23 April 2018, the applicant stated he did not attend the property as usual on Friday, as his parents had arrived to visit and they had attended Scully Park in Tamworth to watch some football. The applicant’s evidence was he attended the respondents’ property at about 9.00am on Sunday, at which time he went to assist Mr Farrugia mustering cattle on a quad bike.
The applicant and Mr Farrugia’s evidence is broadly consistent in relation to the work carried out on Sunday, 22 April 2018, namely they were mustering cattle and removing 20 weaners from their mothers, a job which took many hours across virtually the full course of the day.
According to the applicant, on the date of injury, he arose at approximately 6.30 or 7.00am and the quad bikes were brought out at approximately 9.00am, at which time some cattle mustering was to take place.
According to the applicant, as he and the respondents were mustering the cattle, the herd split and as he was trying to assist with the mustering of the herd and joining them back together, the accident took place.
At this point in time, it is worth noting that Ms Deaves’ version of the accident slightly varies from that of the applicant, however, for the purposes of these reasons it is not an important forensic exercise to discern which of their versions may be more accurate because there is no question an injury did take place. As noted, the salient issue is whether that injury took place in the course of any employment.
The applicant stated he stayed at the farm on Sunday night where he, in the homestead where he usually spends his time whilst staying there. He said Mr Farrugia was going to bring some paperwork up the following weekend to complete for the applicant commencing full-time employment.
The applicant stated he met Mr Farrugia in or about 2017, following which he began attending at the respondents’ farm. After a while, the applicant stated Mr Farrugia requested he work full-time on the farm, however, he refused to at that point in time, however, he continued to visit the farm, attend the farm virtually every weekend. According to the applicant, he left his dog at the farm and would go up on Wednesday to feed it. He also left bedding in the old homestead and would stay there all weekend whilst at the farm.
According to the applicant, he was paid by Mr Farrugia in cash in an amount of $200 per weekend, in either $50 notes or $100 notes. He said he would keep the money for himself and occasionally pay board to his sister.
The applicant’s evidence was Mr Farrugia paid for his car registration at some point in time, which the respondents stated was by way of a loan, but which the applicant stated was given to him by Mr Farrugia in payment for him helping the respondents out on their farms.
There was a payment made post-injury to the applicant by the respondents in the amount of $500, an amount which the respondents say was a loan but which the applicant stated was provided to him without condition.
During cross-examination, it was put to the applicant that he was never in a financial relationship, employment or otherwise, with the respondents, and that he would attend the farm because he enjoyed spending time there and liked to help his friends. He denied that assertion.
The evidence of Mr Farrugia
Mr Farrugia gave oral evidence to the effect he and Ms Deaves owned a forklift sales business on the central coast at Lake Macquarie in New South Wales, together with the farm on which the injury took place. He stated they would regularly visit the farm either on weekends or when their other business allowed them to.
Mr Farrugia denied the applicant carried out paid work for the respondents or that he was a worker. Rather, Mr Farrugia categorised their relationship as one where a bond developed between two mates who hung out on weekends and helped to manage and run the farm, where there was always something to do.
Mr Farrugia conceded in evidence that the applicant would from time to time help with fence mending and all aspects of farm work, but denied having paid the applicant in cash or at all and noted his business practise was to always pay employees “on the books”.
Mr Farrugia acknowledged the applicant kept his dog and some personal items in the old farmhouse, and that he was not charged by the respondents for keeping the dog on the premises as the respondents considered the applicant a friend.
Mr Farrugia referred to the respondents having later employed a farmhand, and that this employee was always paid officially rather than in cash. Mr Farrugia conceded, however, in cross-examination that this farmhand did not start until well after the applicant last attended the farm, and during the course of the attendances by the applicant it was usually he and Mr Farrugia and sometimes Ms Deaves who attended.
Mr Farrugia conceded that when Mr Kelly was later retained as a farmhand, it was to carry out duties essentially identical to those performed by the respondent, and it was also part of Mr Kelly’s deal to live on the farm as well.
Mr Farrugia did not categorise the respondents allowing the applicant to stay on the farm and provide him with food together with full-time shelter for his dog as a form of payment.
When it was put to Mr Farrugia that the applicant’s living and financial arrangements were essentially the same as those later put in place for Mr Kelly, save that the payment provided to the applicant was in cash rather than through a direct deposit, Mr Farrugia disagreed.
Mr Farrugia accepted the work carried out by he and the applicant on the farm on the Sunday before the injury took place was essentially a full day’s work separating weaners from their mothers.
On Monday, 23 April 2018, Mr Farrugia accepts an injury took place to the applicant. He admitted he had offered the applicant employment in the past, however, stated that had been refused.
When it was put to Mr Farrugia that the applicant was using the full week when he was going to work on the farm as an opportunity to determine whether he was going to work full-time, Mr Farrugia accepted this may well have been the case. However, when it was put to Mr Farrugia that the applicant had in fact accepted the offer of $25 per hour commencing on
23 April 2018, Mr Farrugia denied the assertion.Whilst Mr Farrugia accepted a payment of $500 was later made to the applicant after the injury, he denied it was for payment wages, noting such a payment would not reflect any agreement to work at a rate of $25 per hour on a full-time basis.
Mr Farrugia’s evidence was at times argumentative, however, he made some appropriate and relevant concessions, particularly regarding the previous job offer made to the applicant and the fact work was being carried out on the farm by the applicant over weekend, together with an acceptance it may well have been the case the applicant was considering whether to accept the job offer put to Mr Farrugia by him.
The evidence of Ms Deaves
Ms Deaves is Mr Farrugia’s business partner and de facto partner. She is responsible for the running of the business bank accounts and was adamant that no payments had been made to the applicant by the respondents.
Ms Deaves acknowledged that Mr Farrugia had previously made a job offer to the applicant, however, she stated it was many months before the injury and she did not want the applicant to work for the respondents. Ms Deaves’ evidence was consistent with that of Mr Farrugia in stating that staff payments by them in their business operations are always made via EFT payment rather than by cash.
In relation to the 2018 payments to the applicant by the respondent, Ms Deaves categorised them as having been made after the applicant asked for money from Mr Farrugia, whereupon Mr Farrugia requested Ms Deaves transfer money to the applicant as a loan (which she stated was never paid back).
Ms Deaves presented in a forthright manner and appropriately conceded she was not always at the farm with Mr Farrugia and the applicant, sometimes going a month at a time without attending.
Ms Deaves’ version of the precise circumstances of the applicant’s injury is, as has been noted, somewhat different to those of Mr Farrugia and the applicant. I do not, however, propose to embark upon a forensic examination of these respective versions, noting they are not relevant to a matter in issue in these proceedings.
Ms Deaves stated it was not unusual for the applicant to work on a Monday at the property, however, that evidence which was contrary to that of the applicant, Mr Farrugia and also that of Mr Hellman, who was the applicant’s full-time employer during the week, and who stated the applicant did not miss weekday working due to being absent at the respondents’ farm.
Ms Deaves appropriately conceded she was not aware of a job offer having been made by Mr Farrugia to the applicant close to the date of accident, and conceded it was possible for that offer to have been made and for her not to have known.
Ms Deaves’ evidence concerning the post-injury employment of another farmhand was consistent with that of Mr Farrugia, including the allowing of the farmhand to stay on the farm rent-free and the provision of food as part of their payment.
When it was suggested to Ms Deaves that the payment of $500 post-injury was made to the applicant for work carried out on Sunday and Monday of the week of the injury, she denied this was the case and noted payment for work carried out on those days would not have totalled that amount, had there been an agreement for the applicant to be paid $25 per hour (an agreement which she and Mr Farrugia deny was ever made). Ms Deaves also denied the payment was made because the applicant had intended to work for the whole week at the farm.
Ms Deaves indicated she would always be aware of payments made because she was responsible for the invoicing and running of the books for the properties.
As noted, Ms Deaves presented in a forthright manner, however, to some extent her evidence is of limited utility because she appropriately conceded it was possible Mr Farrugia had made the applicant a job offer of which she was not aware. Additionally, Ms Deaves conceded there were many weekends when she was not in attendance at the farm, again an appropriate concession but one which must be borne in mind when considering whether her evidence was persuasive in the circumstances of determining the question of whether the applicant was a worker or received cash payments from Mr Farrugia.
Consideration
On balance, I am of the view the applicant was employed by the respondents at the time of his injury. Notwithstanding the discrepancies between the applicant and the respondents, I find this to be the case in no small measure because the evidence of Mr Hellman as an independent witness is consistent with the arrangement which the applicant asserts, namely the payment to him of cash for work carried out.
Additionally, Mr Hellman’s evidence confirms the unusual attendance of the applicant on a Monday, coming as it did while Mr Hellman’s business was taking a holiday. That timing, in my view, is consistent with the applicant’s evidence that he was using the time as an opportunity to determine whether he would like to carry out work for the respondents on a full-time basis at the higher rate which Mr Farrugia admitted he had offered to him.
This finding is also consistent with the uncontested evidence of the applicant’s father, found in statement form which Mr Farrugia accepted, that Mr Farrugia had telephoned the applicant’s father to explain the potential for the applicant undertaking full-time work for the respondents. The applicant’s father’s evidence, uncontested as it is, was that Mr Farrugia had telephoned him to advise the applicant that he needs to make a decision about going to work for the respondent as soon as possible. The applicant’s father said he was unable to recall the specific dates when he and Mr Farrugia spoke, however, he believed it was just prior to the injury at issue.
That evidence contradicts that of Ms Deaves relating to the job offer having been made many months beforehand.
Turning again to Mr Hellman’s evidence, which I find persuasive as that of an independent witness. The evidence is not only consistent in relation to the payments which the applicant alleges were made to him, but also as to the nature of the work which he was carrying out at the farm, namely general farm work, mustering, maintenance and fencing work.
On balance, and noting the applicant has the onus of proving that he was a worker, I am satisfied primarily on the basis of Mr Hellman’s evidence, supportive as it is of the applicant, that there was an employment relationship between the applicant and the respondents, and that the applicant in fact suffered an injury in the course of his employment with the respondent on 23 April 2018.
There is no question Mr Farrugia offered the applicant a job at $25 per hour, $4 per hour more than that being paid by Mr Hellman to him, together with the opportunity to reside at the premises and also have his dog stay there. I am therefore of the view that the applicant was to be paid $25 per hour by the respondents.
As previously indicated, the matter was disputed on the basis of the applicant not having a commercial relationship with the respondents of any kind, as an employee or contractor. The respondent did not submit if a finding of payment for work carried out by the applicant was made then the relationship was one of principal and contractor. The matter always proceeded as a contest as to whether any payment had been made, and if such payment took place, the applicant would satisfy the requirement for being a worker, and the matter would be remitted to the President for referral to a Medical Assessor.
SUMMARY
Having found there was payment by the respondents, the remedy which flows from that finding is a remittal of the matter to the President for a referral to a Medical Assessor to determine the applicant’s degree of permanent impairment.
For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination
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