Mann & Seymour t/as Nimbin Crystal Tourist Park v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Mann & Seymour t/as Nimbin Crystal Tourist Park v Workers Compensation Nominal Insurer (iCare) & Ors [2022] NSWPIC 739
APPLICANT:	Peter John Mann & Christine Violet Seymour t/as Nimbin Crystal Tourist Park
first RESPONDENT:	Workers Compensation Nominal Insurer
second respondent:	Shaun Brittliff
PRINCIPAL Member:	Josephine Bamber
DATE OF DECISION:	22 December 2022
CATCHWORDS:	WORKERS COMPENSATION - Application pursuant to section 145 of the Workers Compensation Act 1987 (1987 Act) brought by the applicant, an uninsured employer, disputing the notice for reimbursement served on it by the Workers Compensation Nominal Insurer; issues in dispute were whether Shaun Brittliff was employed by the applicant, sustained an injury in the course of his employment with the applicant and whether his employment was a substantial contributing factor to the injury as well as the quantum of any reimbursement; Held – the second respondent is a worker and suffered an injury pursuant to section 4(a) of the 1987 Act; his employment was a substantial contributing factor consistent with section 9A of the 1987 Act; at all relevant times the applicants did not have a policy of workers compensation insurance; the applicants are liable to reimburse the Workers Compensation Nominal Insurer pursuant to section 145 (4) of the 1987 Act.
determinations made:	i) On 23 October 2020 Shaun Brittliff was a worker employed by Peter John Mann & Christine Violet Seymour t/as Nimbin Crystal Tourist Park. ii) Pursuant to s 4(a) of the Workers Compensation Act 1987 Shaun Brittliff sustained an avulsion injury to his nose and psychological injury as a result of a dog attack in the course of his employment with Peter John Mann & Christine Violet Seymour t/as Nimbin Crystal Tourist Park on 23 October 2020. iii) Pursuant to s9A of the Workers Compensation Act 1987 Shaun Brittliff’s employment with the applicant was a substantial contributing factor to his injury. iv) At all relevant times Peter John Mann & Christine Violet Seymour t/as Nimbin Crystal Tourist Park did not have a policy of workers compensation insurance. v) Pursuant to s 145 (4) of the Workers Compensation Act 1987 Peter John Mann & Christine Violet Seymour t/as Nimbin Crystal Tourist Park are to reimburse the Workers Compensation Nominal Insurer the following amounts: (1) $6,024 in relation to the medical expenses paid to or on behalf of Shaun Brittliff; and (2) $54,452.93 for weekly compensation payments made to or on behalf of Shaun Brittliff.

STATEMENT OF REASONS

INTRODUCTION

On 7 April 2022 the Workers Compensation Nominal Insurer served on Peter John Mann & Christine Violet Seymour t/as Nimbin Crystal Tourist Park a notice under s 145 of the Workers Compensation Act 1987 (the 1987 Act) seeking reimbursement of compensation paid to or on behalf of Shaun Brittliff for injury alleged to have been sustained in the course of his employment with Peter John Mann & Christine Violet Seymour t/as Nimbin Crystal Tourist Park. The amount being sought in this notice is $62,315.61.
Peter John Mann & Christine Violet Seymour t/as Nimbin Crystal Tourist Park have brought these proceedings pursuant to s 145(3) of the 1987 Act to seek a determination from the Personal Injury Commission (the Commission) as to its liability in respect of the payments notified.
With the consent of the parties, the Commission amended the Generic Application form to amend the name of the applicant to “Peter John Mann & Christine Violet Seymour t/as Nimbin Crystal Tourist Park”. The Commission also ordered that Shaun Brittliff be joined as the second respondent to the proceedings.
For ease of reference, I will refer in these reasons to “Peter John Mann & Christine Violet Seymour t/as Nimbin Crystal Tourist Park” as the applicant, the first respondent as “the Nominal Insurer” and the second respondent as “Mr Brittliff”.
The applicant did not have a workers compensation policy at all relevant times. There is no evidence, nor was it asserted, that the applicant is an exempt employer under s 155AA of the 1987 Act.
It is not in dispute that on 23 October 2020 Mr Brittliff was bitten on the nose at the Nimbin Crystal Tourist Park by a dog which was in a motor vehicle being driven by Dylan Ducat, the son of a resident of the Nimbin Crystal Tourist Park (the Park).
The issues in dispute are:
(a)    whether Mr Brittliff was employed by the applicant;
(b)    if so, whether he sustained the injury arising out of or in the course of his employment with the applicant;
(c)    if so, whether employment was a substantial contributing factor to the injury, and
(d)    the quantum of weekly compensation and extent of incapacity.
The applicant’s solicitor stated at the outset of his submissions, if the Commission makes findings in Mr Brittliff’s favour in respect to the first three issues set out above, then his client would concede a week of incapacity after the incident and a week of incapacity after the surgery, but otherwise submits there should be no finding of incapacity. He also stated that he did not dispute the payments made in respect of treatment.

PROCEDURE BEFORE THE COMMISSION

Two telephone conferences were held on 12 May 2022 and 30 May 2022 to enable discussions to be held with the parties to ensure the matter was ready to proceed to the eventual hearing.
The matter was listed for conciliation conference/ arbitration hearing before me on
19 July 2022 and 9 September 2022. Mr Paul Macken, solicitor, appeared for the applicant instructed by Mr Peter Mann. Mr Joshua Beran, counsel, instructed by Ms Kat Faapito, solicitor, and Mr Michael Butcher appeared for the Nominal Insurer. Mr Stephen Hickey, counsel, instructed by Mr Phillip Watson, solicitor, appeared for Mr Brittliff. The hearing was conducted on the MS Teams platform due to the Covid-19 situation and because not all parties were located in Sydney.
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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Generic application and attached documents;
(b)    DVD being CCTV footage of incident;
(c)    Application to Admit Late Documents (AALD-A) dated 5 September 2022 filed by the applicant;
(d)    Nominal Insurer’s reply and attached documents;
(e)    Application to Admit Late Documents (AALD-1) dated 25 May 2022 filed by the Nominal Insurer;
(f)    Application to Admit Late Documents (AALD-2) dated 11 July 2022 filed by the Nominal Insurer; and
(g)    Mr Brittliff’s reply and attached documents.
Mr Macken also tendered a written chronology which has been placed with the file as part of his submissions.

Oral evidence

There was no application to cross-examine. Oral submissions were made by the respective parties. A sound recording was made of the arbitration hearing, which is available to the parties.

SUMMARY OF EVIDENCE

Police records

Dylan Robert Ducat was charged in relation to the dog attack. The attack was noted to have occurred at about 14:00 hours on Friday 23 October 2020 when Mr Brittliff went to check on a dog that was sitting in a vehicle because it had been in a fight earlier that week with another dog.
The police record states Mr Brittliff’s address is the care taker’s cottage, and his occupation is “unemployed”.[1]
[1] AALD-A p 19.
However, the police fact sheet in the criminal proceedings brought against Mr Ducat as owner of the dog involved in the attack on Mr Brittliff refers to Mr Brittliff working at the Park as the general manager/caretaker.[2] It is stated that there was an earlier dog fight and Mr Brittliff told Mr Ducat his dog was no longer welcome within the Park. It is stated that on
[2] AALD 29 June 2022 p 8.
23 October 2020 at about 4pm Mr Ducat had driven his vehicle down the driveway of the Park and Mr Brittliff intended on checking if the dog was in the car.
The police records contain a statement made by Mr Brittliff dated 12 November 2020 in which he describes himself as the manager/caretaker of the Park[3]. He states at about 14:00 on Friday 23 October 2020 he was working in his role as the manager of the Park when a familiar vehicle pulled up. He says the owner of the vehicle was not allowed to bring his dog into the Park due to an earlier fight with another dog. He walked over to the vehicle and on the front seat was a black staffy called Bones. He says as he approached the window the dog lunged forward and bit his nose.
[3] AALD 29 June 2022 p 13.
Ms Crossey also gave a statement to the police, and she says since the incident she has “had to work both mine and Shaun’s job as he is unable to work[4]”.
[4] AALD 29 June 2022 p 15.
In the police COPS report Mr Brittliff’s details are recorded and it states his occupation is “unemployed”[5].
[5] AALD 12 July 2022 p 26.

Nimbin Health Service

The Nimbin Health Service triage records confirm on 23 October 2020 that Mr Brittliff attended there after the dog bite. It was noted there was significant bleeding and 4cm diameter tip of his nose appeared to be detached. He reported being unable to breathe through his nose. It is also noted that he was abusive to staff and aggressive. Mr Brittliff punched the wall when leaving. The staff notified Lismore Base Hospital emergency department that Mr Brittliff would be presenting there[6]. It is also recorded in the Emergency Department records that the staff would have cleaned the wound and given analgesia, but this was declined.
[6] AALD-A p 3.
On 14 October 2020 Mr Brittliff attended the Nimbin Health Service with an earache having been assaulted the day prior, when punched once to the left side of his face/ear[7]. Endone was given and paracetamol/ ibuprofen recommended.
[7] AALD-A p 5.

Lismore Hospital

The discharge referral notes from Lismore Hospital note that Mr Brittliff was agitated and on examination he had a large laceration of his nose extending over the bridge of the nose and laterally down the sides of the nose. The anterior portion of the nose could be lifted off exposing the cartilage underneath. Mr Brittliff was treated with Droperidol 5mg IV for agitation[8] and IV Augmentin and analgesia. Images were sent by the hospital staff to Gold Coast University Hospital; and a transfer was arranged to enable the doctors at that hospital to repair the nose[9]. The nursing notes at Lismore Hospital record that Mr Brittliff was more settled, and he was sleeping intermittently. It is also recorded that Mr Brittliff says he had a shot of “etoh” (alcohol) prior to attending the Nimbin Health Centre[10].
[8] AALD-A p 14.
[9] AALD-A p 12.
[10] AALD-A p 13.

Gold Coast University Hospital

Mr Brittliff was admitted to the Gold Coast University Hospital on 23 October 2020 at 22:56 and discharged against medical advice on 25 October 2020 at 08:54. He was treated there with a washout and repair of the nose avulsion injury[11]. It is noted that Alyssa thinks he wants to go home to drink alcohol. It is noted that he has a mix of anxiety and alcohol withdrawal syndrome[12].
[11] AALD-A p 24.
[12] AALD-A p 26.
He re-attended on 18 November 2020 for review. It is recorded that Shaun and Alyssa insist that the injury happened in his work place while performing work duties. On
25 November 2020 he was reviewed again at which time it was recorded that his main issue was his mental health and the doctor stated that understandably he is very traumatised. He experienced minimal sleep and eating, was crying constantly and had significant post-traumatic stress disorder. He was referred to a psychiatrist.

Peter Mann’s statement

Mr Mann has provided a statement dated 5 October 2021. He states he is one of the lessees and manager of the Nimbin Crystal Tourist Park and has been for 12 years. The lessor is the Lismore Council[13]. Mr Mann says he manages the Park remotely and he employs a caretaker to look after the Park for him. He states that the current caretaker is Tony Teniswood.
[13] Application p 9.
He states that at the time of the incident Mr Brittliff was living with his partner, Alyssa Crossey and his children in the caretaker’s cottage at the Park. He says they came to the Park about three weeks before the incident as visitors of the Park and after about five days Ms Crossey asked him about taking up a trial period as caretaker of the Park. He said as
Mr Brittliff and Ms Crossey had nowhere to live he offered them the caretaker’s cottage. He says he advised Ms Crossey she could do the role of caretaker for the duration of the trial period. He said he agreed to pay her $500 directly into her account for up to 20 hours per weeks work.
Mr Mann says he showed Ms Crossey the workings of the position. He says Mr Brittliff was not present during the application or induction to the job role. The agreement with
Ms Crossey was not put into writing. He said, “at no time did we make or promise to make any direct payments to Mr Brittliff”. Mr Mann says he did not see Mr Brittliff do any maintenance or other duties in the Park and Ms Crossey appeared to be doing the caretaker role. He says the trial period was to be four to six weeks duration.
Mr Mann states that the duties were to keep the office open for four hours per day and to clean up a cabin or van when they became empty. He said he had contractors come in to do most of the outside work. He says he has received feedback from other residents that they never saw Mr Brittliff work on the site.
Mr Mann describes hearing about the dog incident the next day and says the dog’s owner was Dillon Duckett (sic) and he was entering the Park to visit his mother, Dee Duckett (sic). He says he was told by Dee Duckett (sic) that she believed that Mr Brittliff was drunk at the time of the incident. Mr Mann says he has not spoken to Mr Brittliff since the incident. He says Ms Crossey has continued to take care of the Park and if she and Mr Brittliff had to go to medical appointments, he (Mr Mann) would come and manage the Park.
Mr Mann states that Mr Brittliff was never engaged by him to work or assist as a caretaker. He adds “On 05 December 2020, I made the decision to give another couple a trial period as caretakers”.[14]
[14] Application p 12.

Anthony Teniswood’s statement

Mr Teniswood in his statement dated 1 October 2021 states that “his wife and I are currently contracted” by the respondent to manage the Park. He states, “We took up the role as contact manager for the park in about early November 2020”. He says he remembered talking to Mr Mann in early October 2020 and “he asked me if we were interested in managing the park[15]”.
[15] Application p 14.
He says he and his family arrived at the Park on about 15 October 2021 [sic] and he recalls Ms Crossey booked them in. He says during their stay he mainly saw Ms Crossey in the office area, but he spoke to her once in the camp kitchen. He says he never met her partner.
He says he recalls several people helping around the Park and says he assisted a bloke named Glen to fix a fence and drag a few logs out of the creek. He says he believed he was the maintenance guy for the Park. He says he spoke to Glen about him looking to take over the management of the Park and Glen contacted Mr Mann and told him he was here.
Mr Teniswood says he saw another tenant of the Park, George who cleaned out the bins and a young tenant, called Blaze, helped him.
He says he never saw Ms Crossey do any work in the Park apart from emptying the money from the washing machines.
At [21] of his statement Mr Teniswood says “My wife and I took over the management of the Park about one month after our arrival. I presume Ms Crossey had moved out”.

Cheryl-Ann Benfell’s statement

Ms Benfell has provided a statement dated 5 October 2021[16]. She says she is the partner of Mr Mann and assists him with book work. She says she was not involved in the interview of Ms Crossey. She says at the time Mr Mann had advised her (Ms Benfell) that he was waiting on other people to try out for the role of managing the Park. She says she is aware that
[16] Application p 16.
Ms Crossey was paid $500 per week for 20 hours work and she was given the manager’s residence with power and water supplied. She says after about a week after Ms Crossey started she was introduced to her, and Mr Brittliff was caring for the children while she worked. Ms Benfell said she only visited the administration office about once a week to gather the book work. She says she would drive in and pick it up and take it home. She said she never saw Mr Brittliff working in the Park. At [19] of her statement she says “Anthony Teniswood and his wife took over managing the Park. They were appointed and remain as the managers since late 2020”.
At [20] she states that she cannot advise whether Shaun Brittliff helped Ms Crossey in the capacity as caretaker because she was only ever at the Park for short periods of time to pick up the book work.

John Anderson’s statement

Mr Anderson has provided a statement dated 30 September 2021[17]. He says he has lived at the Park for about 10 years, and he maintains the pool on behalf of Mr Mann. He says he was present at the initial meeting of Mr Mann and Ms Crossey when he interviewed her for the temporary position as Park manager in October 2020. He says Ms Crossey was offered the position of 20 hours per week on a trial basis and the remuneration was $500 per week, including free accommodation in the manager’s residence together with free water and electricity. He says after Ms Crossey commenced duty he observed her to mainly take up the administration functions in the office. He says she would leave the office occasionally to collect rubbish from bins. He says she paid others to come in and clean cabins, recycle rubbish, prune trees and landscaping as well as cleaning sites. He says at no time did he see Mr Brittliff do any work in the Park. He says he was a recluse and he only saw him about six times outside the cabin when he was picking herbs. He said he stayed in the cabin with his father and two small children. He said he hardly knew him and didn’t usually engage in conversation with him apart from saying hello. He says he clearly recalls that there was no mention during the selection of Ms Crossey that Mr Brittliff was to co-manage the Park or to be paid any type of allowance to help manage the Park.
[17] Application p 19.

Dee Ducat’s statement

Ms Ducat has provided a statement signed on 22 December 2020[18]. Ms Ducat had resided at the Park for about 12 months when she gave her statement. She says Ms Crossey was the trial manager of the Park and she did not see Mr Brittliff perform any management or maintenance work within the Park. She says she was about 30m away from where the incident occurred. She says she had just parked her vehicle at her site and was getting her possessions out of her vehicle. She heard a scream and turned and saw her son in his car at the driveway entrance to the Park with his dog in the front seat. She says she saw Mr Brittliff on the grassed area beside the driveway holding his nose and he was carrying his 18 month old daughter. She says she removed the dog from her son’s car and her son drove Mr Brittliff to Nimbin Hospital. Shortly after she saw Ms Crossey leave the Park.
[18] Nominal insurer’s reply p 1.
Ms Ducat says she spoke to Ms Crossey later and she informed her that Mr Brittliff had been non-compliant at Nimbin Hospital, and she drove him to Lismore Hospital and on the way came back to the Park and Mr Brittliff got a can of pre-mix bourbon. Ms Ducat says that
Ms Crossey informed her that the reason Mr Brittliff was non-compliant was because he was intoxicated. She also says Ms Crossey said he could not drink the bourbon because he was in too much pain. She says she is aware that Mr Brittliff has a problem with alcohol, and she said she saw him affected by alcohol on a daily basis.

Shaun Brittliff’s statement

Mr Brittliff has provided a statement dated 21 December 2020[19]. He states at the time of his injury he was employed with Ms Crossey as the co-manager and caretaker of the Park. He previously had been employed at a restaurant at Port Stephens but lost that job due to the Covid virus. He states that he and Ms Crossey moved to Nimbin on about 10 October 2020 and stayed at the Park, initially as a guest. He says within about two days of being at the Park Ms Crossey approached Mr Mann and his partner Cheryl about managing the Park. He states she came back and told him that the owners were happy for both of them to be the caretakers on a trial basis, with a trial run for six weeks. He said part of the agreement was for them to reside in the caretakers’ cottage and $500 per week was to be paid into
[19] Nominal insurer’s reply p 9.
Ms Crossey’s account. Mr Brittliff said that was payment for both of them to carry out the caretaker functions. He says Cheryl told him of the role, showing him the books, lawn mowing, emptying bins, cleaning cabins and security checks of the Park at night.
He said they were supposed to work 8.30am to midday seven days per week. He says he put in a solid eight hours per day and they only had five days off the whole three months they worked there.
He said Ms Crossey mainly did the books and he did the outdoor work. He said all cleaning materials were supplied. He said at the time of the trial run he was receiving Centrelink parenting payments.
He says on 23 October 2020, immediately before the incident, they were doing a general check around the Park. He said they had a guest who used to leave his kids in the Park, and they were checking to make sure they were ok. He said they also were checking to make sure any dogs in the Park were on lead. He said he had picked up his daughter and saw the 4WD vehicle enter the Park. He says it was his intention to stop the vehicle and tell Dylan, the driver, that his dog must not be in the Park because it had been in a nasty dog fight the previous day. He says he was talking to Dylan through the window which was lowered by about 30cm. He said the dog bit him on the nose. He said he passed his daughter to someone. He says the dog was removed from the car and Dylan drove him to Nimbin Hospital.
He says there was to be a delay in an ambulance being able to take him to Lismore Hospital, so Ms Crossey drove him there. He says on the way they stopped back at the Park to pick up some clothes and he picked up a bottle of scotch and he had a few drinks on the way to Lismore Hospital. He says after his return to the Park he did no work due to his incapacity but did continue to walk around the Park at night with Ms Crossey to do welfare/security checks.
Mr Brittliff describes the effect the dog attack has had on him.
A copy of Mr Brittliff’s claim form dated 20 November 2020 is in the Nominal Insurer’s reply. He refers to himself as a Caravan Park Manager from 7 October 2020 with the ordinary hours of work being 40 and the pay $500.
Mr Brittliff has provided another statement dated 3 August 2021[20]. He refers to Mr Mann’s statement dated 7 December 2020 and denies he and Alyssa had nowhere to live. He said they had a home in Nelson Bay but gave that up when work was offered at the Park. He also denies the work was only offered to Alyssa. He says he carried out a number of duties around the Park. At [12] he states that both he and Alyssa were in the office when Mr Mann spoke to them about taking the work on. He also denies he was intoxicated when the incident happened but says he did sip on alcohol on the way to hospital because he had no pain medication. He describes the incident and the aftermath on him. He says he feels he cannot return to work because he is worried his nose will become infected and emotionally he does not feel up to employment.
[20] Brittliff reply p. 1.

David Brittliff’s statements

David Brittliff has provided a statement dated 21 December 2020[21]. He is Shaun Brittliff’s father. He says he arrived in the Park about a week before the dog incident. He says he came to stay to help with the children as Ms Crossey and his son were struggling to manage the Park and look after the children. He says while he was there he saw Shaun cleaning toilets, working in the laundry, doing garbage and cleaning vacated cabins. He says immediately before the incident he was on the grassed area outside of the caretaker’s cabin and Shaun and Ms Crossey were going for a walk with the children to pick mulberries. He says he saw Mr Ducat’s vehicle and Shaun approaching it and he saw the dog’s head come out the window and bit Shaun on the face. He said he grabbed the children and took them inside. He says on the day of the incident Shaun did not appear to be affected by drugs or alcohol.
[21] Nominal insurer’s reply p 14.
David Brittliff provided a second statement dated 21 September 2021[22]. He confirms he told the investigator in relation to his first statement that Mr Brittliff and Ms Crossey were about to go on a walk to pick mulberries when the dog attack occurred. He said they were also going to do a walk around the Park to check everything was alright.
[22] Nominal insurer’s reply p 42.

Alyssa Crossey’s statements

Ms Crossey has provided a statement dated 21 December 2020. She says that she and Shaun Brittliff were employed as co-caretakers at the Park on a six week trial basis. She says they arrived at the Park on 24 September 2020 as guests and the previous managers left on about the 28 September 2020. The next day she had a conversation with Mr Mann. She says she made it clear to Mr Mann and later his partner, Christine Seymour, that she would need the help of Shaun Brittliff to manage and for them to be caretakers of the Park. She says Mr Mann said they could be co-caretakers as it is quite a testing role. She says they received the accommodation and Mr Mann paid the first three payments of $500 in cash to her. Mr Mann said at the time his wife had not set up the banking details to deposit it and that’s why he paid in cash. She said she started getting the money paid into her account the Thursday after the injury.
She said that she and Shaun do not have a joint bank account, so it was paid into her account.
Ms Crossey said her main role was to do the bookwork, check-in, payments and liaising with customers. She said she did a bit of cleaning after the accident. She said Mr Brittliff’s duties were cleaning the cabins and vans, one or two sites per day. He also did some gardening and looked after the bins and rubbish removal. She says he was kept busy for four hours of a morning doing this job. She states they also took turns to do security checks at 10pm.
Ms Crossey says this role was in the diary from the previous managers, so they tried to continue that function.
She says when Mr Brittliff was not doing Park duties he was looking after their girls. She said the role was so demanding Mr Brittliff’s father came to help with the child minding.
Ms Crossey recounts that at the time of the accident she and Mr Brittliff were about to go for a walk around the Park to ensure dogs were on their leads as there had been a dog fight in the Park a couple of days earlier. She sets out details of the dog attack and the subsequent treatment given to Mr Brittliff.
Ms Crossey has given a further statement dated 3 August 2021[23]. She gives details about the size of the Park and says on any one night there could be 150 people staying there, plus visitors. She says the cleaner and gardener were fired the day they started there as they had damaged their cabin. She says that left them with all the duties. She says they were shown the diary and the old fashioned manual till. She refers to a printout of the website for the Park showing its hours were Monday to Sunday 8am to 7pm. She cites specific incidents of bad behaviour at the Park, cleaning cabins and night checks in the Park.
[23] Nominal Insurer’s reply p29.
She says on 23 October 2020 they were just about to do a tour of the Park and make sure everything was alright and they were going to pick mulberries. Then the dog attack occurred.
She says on 25 October 2020 Mr Brittliff returned to Nimbin and they had a conversation with Mr Mann who told them he did not have workers compensation insurance but to contact Annika at Aon Insurance about public liability cover. Ms Crossey says she rang Annika but was told she could not claim as the dog attack was not the fault of the Park.
At [36] of her statement she recounts a conversation with Mr Mann who said they were not covered for workers compensation because they were on a trial period, and he said he was going to hold off giving them a contract until January to see if Mr Brittliff and herself were able to still carry out the duties. She relates other incidents of bad behaviour in the Park. She says at [46] despite Mr Brittliff’s injury they kept working up to 3 December 2020. She sets out the contents of two phone messages Mr Mann left on her phone.
Ms Crossey has given a further statement dated 26 May 2022[24]. She states Mr Teniswood did not take over the manager role in early November 2020 because Mr Brittliff and she were there until 3 December 2020. She says Glen only came occasionally to work at the Park. George took over the bins after Mr Brittliff’s injury and Blade who was 13 helped George. She says Ms Benfell showed herself and Mr Brittliff how to do the housekeeping and linen for the cabins and hippy vans. She says Mr Brittliff took over these duties and Ms Benfell came back after the injury to do that work. In respect to John Anderson she says he is a good friend to Mr Mann and received reduction in his rent for the work he did in the Park. She says she does not recall Mr Anderson being at the initial meeting with Mr Mann. She is adamant that both she and Mr Brittliff were engaged as managers and says it is work for a couple. She says Mr Brittliff only kept to the cabin after his injury.
[24] Brittliff’s reply p 7.

Kit Peters and Nancy Peters

In an unsigned statement dated 24 May 2021, the Peters say they had stayed at the Park several times[25]. They say before Mr Brittliff and Ms Crossly a couple were the prior managers. They refer to Mr Brittliff doing gardening, cleaning and managing the toilet block. They say there were cleaners, but they did a bad job. They say they saw Mr Brittliff and
[25] Reply p 21.
Ms Crossey doing the rounds of the Park in the day and at night.

Tilly Rhodes-Mayo

Tilly Rhodes-Mayo has given a statement dated 28 May 2021 in which she says she has often stayed at the Park and saw both Ms Crossey and Mr Brittliff working there. She says she is aware that a number of people in the town were being asked by Mr Mann to say that Mr Brittliff did not work there. No dates and detail are given in her statement.

Rebecca Bazzano

Ms Bazzano’s statement is dated 12 July 2021[26]. She says she arrived at the Park two days before Ms Crossey and Mr Brittliff took over managing the Park. She said she did some cleaning work and was paid cash. She said she saw both of them doing work in the Park.
[26] Reply p 26

Letter from John F Gibson

Mr John F Gibson, solicitor, wrote a letter addressed to icare Workers Insurance dated
30 November 2020. He states that he acts for the “proprietors of the Nimbin Crystal Tourist Park (Mann and Seymour)”. The letter was written in response to a letter to Peter Mann dated 23 November 2020. The substantive part of the letter is copied below in its entirety:
“In reply for the purpose of ‘Schedule A’, whilst it is not certain that my client would fall
into the definitions of being an ‘Employer’ – the intention was for the person involved
in the event to be an independent contractor – the information sought by you is provided below without admission of any liability of any nature or kind.
Employer: Nimbin Crystal Tourist Park
Employer type: Partnership
ABN: 332 638 325 90
Address: 29 Sibley Street, Nimbin NSW 2480
Phone: (02) 6689 1402
Email: [email protected]
Nature of business: Caravan Park and Tourist Cabins
Trading name: Nimbin Crystal Tourist Park’
Workers Compensation
Insurance Policy: No
Gross wages: Nil
No of Employees: Nil
Part 2
1. S.141(2) Notice: Not applicable
2. Length of Employment: Not applicable. At site as trial contractor
3. S.141(2) Notice: Not applicable
4. Nature of work relationship: On trial as contractor. Paid.
5. Commencement: Trial commenced on 7/10/2020
6. Duties: Park caretaker
7. Hours: Up to a maximum of 20 hours per week.
8. Number of hours worked: Worker operated in partnership with worker’s partner. Hours actually worked unknown.
9. Award or Agreement: Not applicable
10. Method of payment: Combination of Accommodation supplied inclusive of
outgoing costs of utilities plus payment to the ‘partnership’ to a bank account nominated by the Partnership of the Contractors of whom the injured party was one.
11. Employment ceased: There was no employment but the injured party is still
living at the premises and some tasks are being undertaken by one partner.
12. Contractual arrangement: There was no contractual arrangement or work
undertaken by a contracted third party. There is a lease to occupy and thereby run the park with the Lismore Council.
Part 3
1. Injury: Dog attack
2. Date of injury: 23/10/2020 at 4pm. N.B. after normal office hours
3. How injury occurred: subject to inquiry
4. Where injury occurred: On driveway entrance to the park area
5. Did the claimant report the injury: Yes, to Peter Mann
6. Witnesses: Yes. A park resident and the owner of the dog.
7. Stop work: Yes. Operated in partnership. Partner has continued
some work.
8. Still off work: Yes
9. Medical Certificates: None supplied; None requested
10. Payments for injury: No, but injured party and partner still in residence.
No insurance payments.
General comment
This unfortunate event occurred outside at the park. The person injured was “on trial”
to be appointed under contract with their partner Ms Alyssa Crossey to be Park
Managers with total hours of up to 20 per week to be paid by provision of accommodation and a set amount per week once appointed under their own ABN. No
formal contract had commenced. The injury did not occur whilst the injured party was
performing any particular park task, was totally unforeseeable and would appear that he unexpectedly placed himself in a position to be injured.”

Diary entries

In the Nominal Insurer’s reply there are diary entries which contain references to “Shaun 10pm check” on several days.[27] On 23 October 2020 there is an entry “Pete reneged on Bec & John Ellis for management relief”.
[27] Nominal Insurer’s reply pp 75 to 84.

John Hunter Hospital

The records from John Hunter Hospital are contained in the AALD of the Nominal Insurer dated 11 July 2022. There are 381 pages. Many relate to non-relevant treatment when Mr Brittliff was a child. There are also records in 2021 relating to treatment of the nasal injury. It is not necessary to summarise the same in these reasons because the applicant has not raised an issue about the treatment.

Lismore Community Health

Records from Lismore Community Health refer to admission on 6 November 2020 with
[28] AALD 29 June 2022 p 24.
Ms Crossey contacting the Mental Health Unit expressing concerns about Mr Brittliff. It is noted he has a history of depression which she feels has escalated since the dog attack. He had nil appetite, was not eating, had a low mood and was irritable. He was to take Seroquel that night[28]. An account of the incident is recorded and also noting “Both Shaun and Alyssa are struggling as the owners are not wanting to take responsibility, they are stating that they are under a Trial Period and therefore it is being dealt with under indemnity insurance”.
It is recorded that,
“Shaun was in the process of doing a home detox and was due to commence on Antabuse- in conjunction with local GP. He has now recommenced drinking and with pain medication Alyssa is concerned. He is a Chef by trade and is worried he may never be able to smell anything again. Is also distressed by the disfigurement.”
Post-traumatic stress disorder due to trauma was diagnosed together with an adjustment disorder and depression.

Medical Certificates

Various medical certificates are before the Commission including dated 18 November 2020 from Gold Coast Health Service. This appears to refer to capacity to work if suitable duties available and that he could return to some form of work from 18 November 2020[29]. However, further down the form under the heading functional ability it says “cognitive/psychosocial functioning is affected by the injury and “may be limiting, awaiting formal assessment”. Another certificate dated 30 November 2020 is for Centrelink[30]. It states that Mr Brittliff is unfit to work from 23 October 2020 to 14 December 2020. A WorkCover certificate of capacity dated 1 December 2020 from Dr Ross Wylie[31] certifies he has no capacity for work from 23 October 2020 to 1 January 2021. It refers to Mr Brittliff needing psychiatric care and plastic surgery to repair his nose. It is noted he has deterioration in mental health. Certificate dated 12 February 2021 refers to depression/anxiety and post-traumatic stress disorder symptoms with nightmares, flashbacks and phobias. He was crying frequently all day and started drinking again to cope. He was unable to see his general practitioner for a time as the doctor was on sick leave. He was certified unable to work from 1 to 28 March 2021.[32] The next certificates certify him unfit from 29 March to 28 June 2021 and from 29 June 2021 to
[29] Nominal Insurer’s reply p 101.
[30] Nominal Insurer’s reply p 102.
[31] Nominal Insurer’s reply p 106.
[32] Nominal Insurer’s reply p 109.
[33] Brittliff reply p 42.
28 September 2021. On 13 August 2021 Dr Eric Sticklen certified Mr Brittliff as having no current capacity for employment[33].

Prior proceedings

In matter W4797/21 Mr Brittliff brought proceedings in the Commission against the present applicant and also against the Nominal Insurer. On 6 December 2021 the Member excused the present applicant and his solicitor from further participation in the proceedings. The reason for that course of action is not clear from the Direction of the Member[34]. That matter was settled on 17 February 2022 with an order that weekly compensation be paid at the rate of $779 gross per week from 24 October 2020 to 22 January 2021 and at the rate of $656 gross per week ongoing from 23 January 2021. There was also a general order for the payment of medical expenses. It was noted that the pre-injury average weekly earnings (PIAWE) were agreed at $820 gross per week[35]. The basis of those calculations are not set out and the consent orders cannot operate as an estoppel as the applicant was not a party to that settlement.
[34] Brittliff reply p 170.
[35] Brittliff reply p 171.

Legislative provisions

Section 9 of the 1987 Act provides:
“(1) A worker who has received an injury … shall receive compensation from the worker’s employer in accordance with this Act.
(2) Compensation is payable whether the injury was received by the worker at or away from the workers place of employment.”
Section 4 of the 1987 Act relevantly defines “injury” in sub-paragraph (a) as a personal injury arising out of or in the course of employment.
Section 4(1) of the 1998 Act relevantly defines “worker” as follows:
“(1) In this Act—
...
workermeans a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing).”

Relevant legal principles

A significant issue raised by the applicant is whether there was a contract for service between the applicant and Mr Brittliff.
In Australian Woollen Mills Pty Ltd v Commonwealth[36] the High Court held “[i]t is of the essence of a contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty”.
[36] [1954] HCA 20; 92 CLR 424, Australian Woollen Mills.

Accordingly, Roche DP in Secretary, Department of Family and Community Services v Bee[37] found at [91] to be legally enforceable, there needs to be real consideration “for the agreement”. In Bee a foster carer was paid an allowance to look after children, but the Court of Appeal held this was not consideration for a bargain for her to provide her services as a foster carer. It was held this was not consideration for a contract and it did not demonstrate an intention to create legal relations.
[37] [2014] NSWWCCPD 66, Bee.
Similarly, in Teen Ranch Pty Ltd v Brown[38] the Court of Appeal held there was no contract when an applicant was a volunteer at a non-profit religious organisation running camps for teenagers. He received meals, accommodation and use of the camp facilities but no wages. However, in Harris v Cudgegong Soaring Pty Ltd[39] the Compensation Court distinguished Teen Ranch because the applicant in Harris was living on the airfield in return for acting as caretaker of the airfield. The Court held unlike in Teen Ranch Mr Harris was not acting out of altruism but “to secure a necessity of life: shelter”.
[38] (1995) 11 NSWCCR 197, Teen Ranch.
[39] [1995] NSWCC 18; (1995) 11 NSWCCR 678, Harris.
In Bee at [42] Roche DP found that the question of an intention to create legal relations requires an objective assessment of the state of affairs between the parties. He referred to Ermogenous v Greek Orthodox Community of SA Inc[40] at [25] that “intention” describes what would be objectively conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened.
[40] [2002] HCA 8; 209 CLR 95, Ermogenous.

Submissions

Rather than summarise each parties submission separately I will deal with them in relation to the various topics to which Mr Macken has referred in his submissions.
Mr Macken tendered a chronology which I have treated as an aide memoire. As it is brief I have copied it below:
“12 October 2020 (approx.)
Pete Mann meets with Alyssa Crossey and offers her a trial period of employment as a caretaker at the park. The Claimant (‘Brittliff’) is not present at that meeting nor the induction which followed (Application pages 10, 19 and 20 and First Respondent’s Reply pages 10 and 18)
23 October 2020
Brittliff and Crossey go for a walk at approximately 4pm with their kids (according to David Brittliff it was to pick mulberries, first Respondent’s Reply 15).
Brittliff suffers injury from a dog bite.
23 October 2020 (at approx. 5:30)
Brittliff attends Nimbin Hospital (see clinical notes a page 3 of AALD dated 5 September 2022)
23 October 2020 (at approx. 6pm)
Brittliff attends Lismore Hospital (see clinical notes pages10-14 of Application to Admit Late Documents dated 5^th September 2022)
23 October 2020
Police in attendance at Lismore Hospital (due to presentation at Nimbin Hospital). Police have recorded details of the incident and of the victim Brittliff whose occupation is identified as “unemployed” (AALD dated 5^thSeptember 2022 at page 9)
18 November 2020
Brittliff and partner present to hospital and request Workers Compensation form following advice from solicitor (see Application to Admit Late Documents 5^thSeptember 2022 at 25).
20 November 2020
Brittliff submits Notification of injury form (First Respondent’s Reply at page 46).
30 November 2020
Brittliff submits workers compensation claim (First Respondent’s Reply at page 51).”
All of the parties’ submissions have been sound recorded so I will not repeat them verbatim.

Meeting

Mr Macken submits that Mr Mann and Mr Anderson confirm that when Ms Crossey was engaged to manage the Park Mr Brittliff was not present in this meeting. It was submitted that Mr Brittliff’s own statement confirms this as at [22] of his statement dated 21 December 2020 he says:
“Alyssa came back and told me that the owners were happy that both of us to the be caretakers of the park on a trial run for six weeks. I took this as they offered both Alyssa and I as taking up the caretaker duties.”
Mr Macken submits that there would have been no reason for Alyssa to come back to tell Mr Brittliff if he had been in the meeting. I find this submission has force. Also, Ms Crossey does not state that Mr Brittliff was present at this meeting.
Mr Hickey submits it may well be Mr Brittliff was not present at the initial meeting but they both were instructed later about the duties to be undertaken. It was submitted that it was virtually a full-time job as they were on call at all times. Ms Crossey refers to people coming in the afternoon to register.

Payment

Mr Macken also relies upon the fact that payment was to go into Ms Crossey’s account. However, Ms Crossey has explained that they did not have a joint account and it was only after the dog attack that payments were made into her account. Before this cash was paid.
It was also submitted by Mr Macken the amount was $500 for 20 hours per week work and that hourly rate would only be appropriate for one person. He says it would be below the minimum wage for two people. However, the payment package included provision of a house rent free and with electricity and water costs included. So I find the amount of $500 is not determinative of whether Mr Brittliff was an employee.
In addition, as Mr Hickey submitted that the amount of $500 was an underpayment and so it should not follow from that amount that it would only be consistent with one person being employed.

Intention to enter into employment relationship

Mr Macken submitted there was no intention by Peter Mann to enter into an employment relationship with Mr Brittliff. He relied on a case of Maatta v Owen Dwyer t/as Owen Dwyer Builders[41]. In Maatta the facts are quite different to Mr Brittliff’s case. The finding of the Member, which was upheld on appeal, was that the applicant had not discharged his onus to prove he was a worker or deemed worker under the 1987 Act in relation to the first respondent. In Mr Brittliff’s case Mr Macken has relied on lay evidence to assert there was no contract of service with the applicant, no intention to enter into a legal relationship and, also, that in fact, Mr Brittliff did not do any work at the Park. In Maatta there was no issue that the applicant was performing tasks at the building site. However, the principles referred to by the Member and Deputy President in Maatta are those set out above by Roche DP in Bee.
[41] [2022] NSWPICPD 18, Maatta.
Mr Macken submitted that the transcripts of the phone messages between Mr Mann and
Ms Crossey ending her employment do not refer to Mr Brittliff[42]. He submits the reason for this is Mr Brittliff was not employed at all. Mr Hickey submitted that Mr Macken submitted that the message of 5 December 2020 did not deal with Mr Brittliff but the message includes
Mr Mann’s words “we need to make sure you guys get looked after”. Mr Hickey submits this reference to “guys” is plural and includes Mr Brittliff. Also he draws attention to Mr Mann’s advice in that message “I am about to ring the other people now and tell them that as from the 7^th of Janaury come forward and do their trial”. He submitted this use of plural shows
Mr Mann’s practice was to hire two persons as managers and this is also evident from
[42] Brittliff reply p 172.
Mr Teniswood’s statement. He submitted there is also reference in the Peters’ statement to the managers before Shaun and Alyssa being a couple. Mr Hickey says there is a distinct pattern for two people to manage the Park. I accept this submission as the evidence of Mr Teniswood, in particular, supports the conclusion that Mr Mann did hire a couple for this role. However, this is not the main reason for me determining there was in fact an intention to create a legal relationship between the applicant and Mr Brittliff.
Mr Hickey submitted that the letter from John F Gibson, solicitor, refers to the intention for the person involved in the event to be an independent contractor. Mr Hickey says the applicant has not put on any evidence to rebut this letter. It is submitted the letter is contemporaneous to the incident and before Mr Brittliff and Ms Crossey left the Park.
Mr Hickey referred to the detail in the letter, which I have set out later in these reasons.
Mr Hickey said the letter says Mr Brittliff was engaged with his partner and they were on a work trial. I accept this submission has force.

Circumstances surrounding incident

It was submitted by Mr Macken the incident with the dog occurred when Mr Brittliff and Ms Crossey were going on a walk to pick mulberries. He also submits that the video footage of the incident shows at the time of the dog attack Mr Brittliff was carrying his young child. He says the young child waves to the person in the car. He states the hospital notes say that the dog was owned by a friend of his. Mr Macken submits if you were going to inspect the Park you would not be carrying your child with you at that stage. It is submitted there was no employment related activity associated with this incident by either Mr Brittliff or Ms Crossey.
Mr Hickey submitted that an activity can have a dual purpose and there is evidence that the reason Mr Brittliff approached Mr Ducat’s car was to ascertain if the dog which had previously caused trouble and was banned was present in the vehicle.
I do not find it remarkable that in a workplace such as the Park that Mr Brittliff may carry out tasks such as approaching a vehicle entering the Park with his daughter in his arms, given the proximity of the driveway to the Park where the vehicle was and the caretakers’ cottage, from where Mr Brittliff had come. I place no reliance on the fact that the child may have waved to the driver of the car, nor to Mr Macken’s later submission that Mr Brittliff would not have let Mr Ducat drive him to Nimbin Hospital had they not been friends. I find that in the emergency situation he found himself in, he would have naturally been desirous of getting to medical help quickly and the car and driver were there. Also Dee Ducat said she told Dylan drive Mr Brittliff.

Work

Mr Macken says there are many witnesses who say Mr Brittliff did no work around the Park such as Mr Teniswood, Ms Benfell and Mr Anderson. It is submitted these persons are independent and they are at the Park all the time and they would have seen him working if he had been. He noted Mr Anderson said Mr Brittliff was a recluse and he had only seen him outside his cabin about six times to collect herbs. However, this is inconsistent with Dee Ducat saying she saw Mr Brittliff every day affected by alcohol. I find both witnesses statements, as with most of the other statements, need to be treated with caution due to the many inconsistencies between the various witnesses, who seem to have divided into camps favouring Mr Mann or Mr Brittliff. Mr Hickey submits that Mr Teniswood is not truly independent because he is reliant on Mr Mann for his job. I accept this aspect of his submission as it seems self-evident given his role, with his wife, as the subsequent managers of the Park.
Mr Macken said the police record lists Mr Brittliff’s occupation/skill as “unemployed”. Mr Macken submits this information would have been obtained from Mr Brittliff. I do not place weight upon this evidence given the contents of Mr Gibson’s letter. Also, there is no evidence where this information came from. Furthermore, the police fact sheet does say that Mr Brittliff is a caretaker at the caravan park. It also states that Mr Brittliff advises he walked to the car to check if the dog was in the vehicle. This is a more detailed account and, so, I consider it should be preferred to the other brief reference to “unemployed”.
In addition, Mr Hickey submits that at the time the police filled out the document listing him as unemployed, Mr Brittliff may have considered himself to be unemployed because he could not work due to the nasal injury and psychological injury. I do not place reliance upon this part of Mr Hickey’s submission as it is something that could have been dealt with by
Mr Brittliff in his statement and without foundation is speculation on Mr Hickey’s part. However, as I have found below the contents of Mr Gibson’s letter, to my mind, does objectively evince an intention for Mr Mann to have entered into legal relations with Mr Brittliff.
Gold Coast Hospital records state on 18 November 2020 Mr Brittliff and Ms Crossley sought a workers compensation claim form. It is submitted by Mr Macken that this assertion that he was employed comes at the time he has spoken to a solicitor and now wishes to make a workers compensation claim. However, the Lismore Community Health records on 6 November 2020 refer to the owners not wanting to take responsibility and stating as they were on a trial period the matter is being dealt with under indemnity insurance. I find this is consistent with Ms Crossey’s statement that on 25 October 2020 Mr Mann said he did not have workers compensation insurance and at [35] of her statement she says Mr Mann told her they were not covered for workers compensation because they were on a trial period.
Mr Macken referred to the claim form in which Mr Brittliff says he was employed for 40 hours per week for $500 per week. It is submitted that this is inconsistent with Ms Crossey’s statement that they were employed for 20 hours per week.
Mr Hickey relies on the letter from Mr Gibson which confirms the hours were to be 20 per week 8am to 12pm, but the actual hours worked were unknown.
There is some evidence that Mr Brittliff was affected by alcohol, and it is submitted by
Mr Macken that this is inconsistent with him working at the time.
Mr Macken submitted that Mr Brittliff was receiving a government parenting allowance and that is consistent with him not being in employment. I do not accept that submission because a parenting payment can still be received if a person is in employment, but the amount of the parenting payment may be reduced depending on a number of factors such as the number of children and the amount of income earned.

Inconsistencies

Mr Macken submitted there were many inconsistencies in all of the evidence, including but not limited to:
(a)    Ms Crossey’s statement is that Mr Brittliff was working four hours a morning, yet Mr Brittliff says he did 40 hours per week. I have dealt with this submission below when making findings about the weekly compensation;
(b)    Mr Brittliff says he grabbed a bottle of scotch on way to Lismore Hospital but in Ms Crossey’s statement she says she grabbed some alcohol;
(c)    Mr Brittliff says he did not get back to work after the dog attack, yet the Peters say he worked in the Park before and after the attack. Mr Macken submits the Commission cannot accept their assertion he worked after the dog attack given it is inconsistent with Mr Brittliff’s own statement. He submitted further that if this alleged fact cannot be believed, then the assertion he worked in the Park before the dog attack also should not be believed. As I have noted above I find all the witness statements need to be treated with caution due to the inconsistencies between them;
(d)    David Brittliff stated that Mr Brittliff and Ms Crossey were going to pick mulberries when the dog attack occurred whereas Ms Crossey says they were going to do an inspection of the Park due to the previous issues with dogs. Mr Hickey says there can be more than one purpose for an action. This submission is further dealt with later in these reasons;
(e)    David Brittliff was standing outside the caretaker’s cottage, which was 4 m from the dog attack at the driveway to the Park. Mr Macken submits that it is not consistent with any work activity intended to be performed around the Park that Mr Brittliff would have walked with his daughter in that direction. Mr Hickey refutes this submission, submitting Mr Brittliff approached Mr Ducat’s car to ensure the dog did not enter the Park, consistent with him performing his duties as a caretaker. I have dealt with this submission below;
(f)    Ms Bazzano refers to Ms Crossey appearing tired because of all the work and having to get up to incidents during the night, yet she does not make similar comments about Mr Brittliff. While it is true that Ms Bazzano does not refer to Mr Brittliff being tired, I find that is not a determinative fact as to whether Mr Brittliff was employed;
(g)    Mr Macken referred to Ms Ducat’s statement that her son had informed her that Ms Crossey had directed, while they were at Nimbin Hospital, to remove the dog from the Park. Mr Macken submits that if in fact they had previously directed the dog be removed there would have been no need to do so at the hospital. However, this does not make sense. It is Mr Brittliff and Ms Crossey’s contention that due to the earlier dog fight the Ducat dog had been banned from the Park. I find this is not inconsistent with Ms Crossey again directing the dog be removed from the Park on 23 October 2020 after the incident, because the dog had not in fact been kept away from the Park as he was at the Park on 23 October 2020 and had bitten Mr Brittliff on the nose. So it is not inconsistent for a second direction to be given. Furthermore, as Mr Hickey submitted the diary entry on
20 October 2020 refers to the dog Bones being banned after a fight with the dog Jedda;
(h)    it is also submitted the first medical certificate is a Centrelink certificate and this is inconsistent with it being employment injury as Mr Macken says the hospital must not have thought it was a work injury. I find how the hospital classified the injury does not have a bearing in this case on my determination because it is not clear why they made such classification. It is noted in the Gold Coast Hospital records that Mr Brittliff and Ms Crossey stated the injury happened at work, and
(i)    the medical certificates refer to no capacity to work which was submitted is inconsistent with the various witnesses who say they saw Mr Brittliff working after the injury. I prefer the evidence of Mr Brittliff that after the attack he did no work around the Park except on occasion to walk around to do the security check. I find that the witnesses who saw him working in the Park after the injury must have been confused relating to their memory of the time when he worked. I find it is more likely that Mr Brittliff would have a more accurate memory relating to this and it is consistent with Ms Crossey’s evidence. I find the fact that some witnesses state he worked after the dog attack does not diminish the weight I give to the medical certificates.

Diary entries

Mr Macken submitted the diary entries are meant to be sequential throughout the day. He gives as an example of an inconsistency that there is an entry at the top of the page it is noted at 10pm Mr Brittliff was doing a check of the Park. However, I find this is not remarkable. I do not accept that I can infer that each handwritten entry is meant to tally with the time printed in the diary. They just look like they are written in anywhere on the page. For instance, on the first page of the diary adjacent to 11.30am is a person’s name and note she is checking in at 8pm. The note above that is addressed to Pete, presumably Mr Mann, to check about another matter. I find the entries do not seem to bear a correlation with the times printed on the page. Also, the printed times on the page only go to 6pm so there is no printed time for a 10pm entry.
Mr Hickey submitted a diary entry of 16 October 2020 refers to “Shaun 10pm check” and the next day “Alyssa 10pm check”. On Monday 19 October 2020 the entry refers to Shaun doing the 10pm check. Mr Macken’s submissions in reply express scepticism about the diary entries noting there are no earlier diary entries available. This is in response to Ms Crossey stating that the prior caretakers did a check at 10pm and they kept this practice up. However, Mr Macken’s client would have control of the diary and they have the onus of proof and they have not sought to put before the Commission the earlier diary entries. I find the entries before the Commission are supportive of the evidence of Mr Brittliff that he does the work of checking the Park.

Mr Hickey also submits the diary has a number of ancillary tasks listed such as maintaining discipline in the Park. I find such entries do support Mr Brittliff’s contention that he worked in the Park doing a variety of tasks as needed.
Mr Hickey also referred to the entry on 20 October 2020 stating at 5.30pm fight with Bones and Jedda, Bones went lockjaw on Jedda. Told Dee and Dylan dog not to be in Park again. Mr Hickey submitted this evidence counters the submission of Mr Macken that the first direction to ban the dog was given at Nimbin Hospital. I accept this submission.

DETERMINATION

In addition to the findings made above when discussing the submissions, the following reasons are given in relation to the legislative requirements.

Worker

In this matter there are many witness statements with inconsistencies between them. I find that it is most likely on the balance of probabilities that Mr Brittliff was not present at the initial meeting between Ms Crossey and Mr Mann. Ms Crossey has not stated that Mr Brittliff was present.
However, notwithstanding this situation I accept that Ms Crossey did make it clear to
Mr Mann that she would need Mr Brittliff to work with her and that Mr Mann advised her they could be co-caretakers of the Park. I find this arrangement would have been acceptable to Mr Mann because the caretakers before Mr Brittliff and Ms Crossey were a couple and the caretakers afterward are a couple. Mr Teniswood states at [21] of his statement “my wife and I took over the management of the Park about one month after our arrival. I presume
Ms Crossey had moved out”. In addition Ms Benfell at [19] of her statement says “Anthony Teniswood and his wife took over managing the park. They were appointed and remain as the managers since late 2020”.
I find that Mr Mann is lying when he says he did not appoint Mr Brittliff and Ms Crossey as co-managers. I find the reason he is lying is because he did not have workers compensation insurance. The significant piece of evidence to support this conclusion I find is the letter from John F Gibson, solicitor dated 30 November 2020. He states that he acts for the “proprietors of the Nimbin Crystal Tourist Park (Mann and Seymour)”. I find the letter provides objective evidence that there was an intention to create legal relations with Mr Brittliff.
Mr Macken submitted in reply that the letter from Mr Gibson could not be relied upon because it is a letter responding to a letter from icare and that is not before the Commission. However, I find that would only matter if the contents of the letter were not self- explanatory, which I find they are. Mr Gibson has put headings and sub-headings so one can easily ascertain the topics that his answers were in response to.
Mr Macken also submits that the letter contains internal inconsistencies and refers to point 11 “Employment ceased: There was no employment but the injured party is still living at the premises and some tasks are being undertaken by one partner”. He relies on the phrase “there was no employment”. However, this is not inconsistent with the whole letter which refers to the legal relations between the applicant and Mr Brittliff and Ms Crossley as one of contractors not employees. Mr Macken says this letter is inconsistent with Mr Mann’s statement. However, I do not accept this submission because Mr Mann has not addressed this letter in his statements to explain if it was the case that he had not given those instructions to Mr Gibson.
Firstly, it is asserted “the intention was for the person involved in the event to be an independent contractor”. Then in Part 2 of the letter in answer to “length of employment” the answer given is “not applicable. At site as trial contractor”. And in answer to “nature of work relationship” it is stated “On trial as contractor. Paid”. Further details are given such as the trial commenced on 7 October 2020, the duties were park caretaker, and the hours were up to a maximum of 20 hours per week. Also, I find the answers numbered 8 and 10, Part 3 point 7 and the general comments to be particularly significant. These are as follows:
“8. Number of hours worked: Worker operated in partnership with worker’s partner. Hours actually worked unknown.
…
10. Method of payment: Combination of Accommodation supplied inclusive of
outgoing costs of utilities plus payment to the ‘partnership’ to a bank account nominated by the Partnership of the Contractors of whom the injured party was one.
…
Part 3
…
7. Stop work: Yes. Operated in partnership. Partner has continued
some work.
…
This unfortunate event occurred outside at the park. The person injured was “on trial”
to be appointed under contract with their partner Ms Alyssa Crossey to be Park
Managers with total hours of up to 20 per week to be paid by provision of accommodation and a set amount per week once appointed under their own ABN. No
formal contract had commenced.”
This advice in the letter addressed to the Nominal Insurer by the then solicitor for the applicant in my view objectively demonstrates there was a legal relationship between the applicant and Mr Brittliff. The fact that it was a work trial does not preclude the relationship being one of employer/ employee. A solicitor acting for a party does so on instructions and Mr Gibson says he is acting for the applicant. Mr Mann has not put on any evidence dealing with this letter. I accept Mr Hickey’s submissions about the relevance of the contents of this letter.
Mr Beran submitted that the evidence shows that to manage the Park was a two person job, given all the aspects to the operation of the Park. As noted above, Mr Hickey submitted there is a pattern for Mr Mann arranging on behalf of the applicant for there to be couples to run the Park both before and after Mr Brittliff and Ms Crossey’s time there. I consider the evidence of Mr Teniswood supports such a conclusion.
Mr Beran submitted that Mr Gibson’s letter is akin to an admission against evidence. It was also submitted that the contemporaneous evidence of Mr Brittliff to the police on
12 November 2020 was that he was the caretaker of the Park. Mr Beran submitted this is significant because it is before the workers compensation claim was made and it is consistent with Mr Gibson’s letter. Mr Beran submitted that there is no need to deal with the evidence beyond this because this evidence satisfies the definition of worker. Mr Macken in response says the part of the police record which lists Mr Brittliff as unemployed came from a conversation with him on 29 October 2020. However, when one looks at the police records it is difficult to tell when particular parts were filled out because there are various dates for entries being made.
Mr Beran also submitted that the witnesses who did not see Mr Brittliff do any work, does not mean he did no work, just that they did not see it. He also submitted those that saw him work should be accepted because their evidence has not been rebutted. However, I have not placed weight upon the various witness statements due to the inconsistencies between those witnesses.
I accept that it is not necessary to the determination of the issue of “worker” to attempt to sort out which particular witness should be believed, given the contents of Mr Gibson’s letter. I also consider the statement given by Mr Brittliff to the police on 12 November 2020 is reasonably contemporaneous to the incident on 23 October 2020 and is consistent with the contents of Mr Gibson’s letter. Additionally, the entry in the Lismore Community Health records on 6 November 2020 which I have referred to at [99] above does confirm Ms Crossey’s contention that on 25 October 2020 Mr Mann told her there was no workers compensation and later because they were on a work trial they would not be covered, in any event.
For all of the above reasons, I find Mr Brittliff was a worker within the meaning in s4 of the 1998 Act. I have found that the applicant did intend to enter into a contract for service with both Mr Brittliff and Ms Crossey to be co-caretakers of the Park.

Injury in course of employment

Mr Macken submits that even if the Commission finds Mr Brittliff was employed by the applicant, there is nothing to suggest that he was injured in the course of his employment particularly noting that the incident occurred outside 8am to midday and he was holding his 18 month old daughter. It is also submitted there is nothing in the incident itself to suggest it was in the course of employment. However, Mr Macken did not deal with the scenario that Mr Brittliff went up to Mr Ducat’s car specifically to tell him the dog could not be brought into the Park, given its earlier involvement in a dog fight.
Mr Hickey submitted just because a purpose was to gather mulberries, that does not mean he was not going on a Park check and, more particularly, telling Mr Ducat he was not to bring his dog into the Park. He submitted an action can have a dual purpose such as in Hook v Rolfe[43]. Mr Hickey also referred to the case of Mayhew v G& S Mayhew Pty Ltd[44] in which it was found there was no reason to deny compensation because an injury arose out of dual purpose. In that case on Boxing Day the applicant was installing a solar heating system for his swimming pool at his own home when he fell off the roof injuring his back. Judge Armitage found that one of the purposes for doing this work was to trial a product that the respondent company could afterwards sell for profit. Judge Armitage referred to Hook and the judgement of Glass JA that a particular activity may have multiple purposes, some work-related and some not, and yet be in the course of employment. Judge Armitage also found that the task could also fall within “arising out of” employment because it was an activity he was expected to perform because of his contract of employment or at least incidental to it.
[43] (1986) 7 NSWLR 40, Hook.
[44] [1995] NSWCC 31, (1995) 12 NSWCCR 398 Mayhew.
Mr Hickey submitted Ms Crossey’s evidence was when she saw Mr Ducat’s car coming down the driveway she walked one way and Mr Brittliff walked towards the vehicle. Mr Hickey says an inference can be drawn that Mr Brittliff was walking that way for a reason, that is, in accordance with his duties as a park manager he went to tell Mr Ducat the dog could not come into the Park.
I am satisfied that when Mr Brittliff approached Mr Ducat’s car it was in the course of his employment with the applicant and also arose out of that employment as it furthered the interests of the applicant to maintain order in the Park by excluding the dog, Bones, who had previously been involved in a fight. I find the fact that Mr Brittliff had his daughter in his arm did not detract from the fact that he was acting in the course of his employment. The work in the Park is not as structured as work in an office. Mr Brittliff and Ms Crossley lived on site and I find they were expected to do tasks that were required when they arose, such as maintain discipline. The diary entries show they had to take steps to call the police or evict problematic guests from time to time. I find it was not a strict 8am to 12 noon job, otherwise there would have been no need for them to live at the Park.
I do not accept that anything turns upon the references to Mr Brittliff drinking alcohol on the day of the incident. There are inconsistent statements about this. But, in any event, I find it does not detract from the factual finding that I have made that Mr Brittliff was employed by the applicant and injured arising out of or in the course of employment with the applicant.

Substantial contributing factor to the injury

Mr Macken submits there is nothing to suggest that the employment was a substantial contributing factor to the injury. He says Mr Brittliff was walking towards a friend’s car with his daughter waving to the driver and when he went to say hello he was unfortunately injured. Again Mr Macken does not deal with the contention that Mr Brittliff was acting to warn off the dog being brought into the Park.
However, as Mr Hickey submits and I find, the police statement of Mr Brittliff does say he approached Mr Ducat’s car to check and see if the dog was present. It was submitted that this satisfies s 9A of the 1987 Act. I find the factors in s 9A(2) are such that employment was a substantial contributing factor. Mr Macken seems to suggest because the time was about 4pm and this was outside Mr Brittliff’s working hours, if he is found to be an employee, is a determinative factor. But I am satisfied that the time and place of injury are consistent with him with his employment being a substantial contributing factor. The place was the driveway of the Park and time was consistent with him being an “on-call” type worker, where he had to deal with events that arose. The nature of his work was as a caretaker and part of that task was to keep discipline at the Park and sort out problems, such as avoiding dog fights. I also find there is no probability that the injury would have occurred at the same stage of his life as the reason for him approaching Mr Ducat’s car was to see if the dog that previously caused trouble was in the car. Therefore, I find s 9A is satisfied.

Weekly compensation

The Nominal Insurer’s list of payments reveals that $6,024 was paid by it for medical treatment expenses and $56,291.61 for weekly compensation covering the period from
[45] Application pp 5 -8.
23 October 2020 to 7 April 2022 pursuant to ss 36 and 37 of the 1987 Act[45].
Mr Macken submitted that Mr Brittliff would have had a capacity to work because the injury only involved the nose and he could have undertaken many jobs that were within his capacity and earned more than his pre-injury earnings, except for a short period of time following the initial bite and following the surgery. However, I find this does not take into account the psychological sequelae of the incident, which is referred to in the medical certificates.
I find that the medical evidence supports a finding that Mr Brittliff had “no current work capacity” (as it is defined in Schedule 3, Part 9 (2) of the 1987 Act) when the nasal and psychological injuries are taken into account and the fact that he was to undergo further surgeries on his nose. I find in the period in question the evidence is he has an inability arising from his injuries such that he could not return to work, either in pre-injury employment or in suitable employment. Suitable employment is defined in s 32A of the 1987 Act and requires me to take into account the nature of his incapacity and the medical certifications, as well as his age, education, skills and work experience. I note he was a chef and that employment was not open to him in the period in question due to his nasal injury and psychological condition. As noted the medical certification places emphasis not only on his nasal injury but psychological injury. Taking all this into account, I find that Mr Brittliff in the period in question had no capacity to work in suitable employment and had no current work capacity.
There is an issue as to how to calculate the PIAWE figure.
Mr Macken submits the PIAWE should be nil or, if any figure, only about $250 per week.
I asked about the value of the accommodation and Mr Macken submits the accommodation was offered to Ms Crossey and Mr Brittliff benefited by that. However, he did concede if I found Mr Brittliff was employed there would be some value for the accommodation to him but it would be small noting it was in a caravan park. He said it might be worth $200 per week and then there is a question if you would split that value with Ms Crossey.
Mr Hickey said that the Commission should find that the sum of $500 per week was a gross underpayment for both Mr Brittliff and Ms Crossey. His submission is the PIAWE should be calculated by reference to the award.
Mr Hickey referred to the agreement reached in the prior proceedings that $779 gross per week was payable for the s36 period from 24 October 2020 to 22 January 2021 and then $656 gross per week for the s 37 period from 23 January 2021 and continuing. I note the Certificate of Determination- consent orders from those earlier proceedings have an agreement that the PIAWE was agreed at $820 gross per week. For reasons that are obscure to me the applicant in the current proceedings, who had been sued in the earlier proceedings, was excused from those proceedings and so the present applicant was not a party to that agreement.
In addition to Mr Brittliff and Ms Crossey being provided rent free accommodation, the electricity and water usage was also provided free to them.
Mr Beran refers to Schedule 3, Part 6 (3) of the 1987 Act which provides:
“However, the monetary value of a non-monetary benefit of a worker is to be included as part of the income of the worker for the purposes of the calculation of the weekly payments of compensation payable to the worker if the worker is not entitled to the use of the benefit.”
I find once Mr Brittliff and Ms Crossey were terminated they were not entitled to the use of the benefit. Part 7 provides the monetary value of non- monetary benefits.
“(1) The monetary value of a non-monetary benefit in respect of a week is—
(a) the value that would be the value as a fringe benefit for the purposes of the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth, calculated in accordance with subclause (2), divided by 52, or
(b) in the case of a non-monetary benefit that is not a fringe benefit or is otherwise not subject to fringe benefits tax, the amount that would reasonably be payable for that benefit (having regard to any matter specified by the Workers Compensation Guidelines).
(2) Value as a fringe benefit is to be determined in accordance with the formula--

‘TV’ is the value that would be the taxable value of the benefit as a fringe benefit for the purposes of the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth.
‘FBT rate’ is the rate of fringe benefits tax imposed by the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth that applies when the non-pecuniary benefit is provided.”
There is no evidence that the fringe benefits tax would apply. The non-monetary benefit would be for the accommodation and electricity and water. The applicant has the onus of proof in these proceedings because it is challenging the s 145 notice issued by the Nominal Insurer. The applicant has called no evidence as to the calculation of the non-monetary benefit. Mr Macken has nominated a figure of $200 which is virtually identical to the figure nominated by Mr Beran for the value of a shared room no meals of $199.46.
It was also submitted by Mr Beran that Mr Brittliff was a “short term worker” and Regulation 8F of the Workers Compensation Regulation 2016 applies:
“(1) In determining the earnings that a worker could reasonably have been expected to have earned in employment for the purposes of clause 4(1) of Schedule 3 to the 1987 Act, the following matters are to be taken into account--
(a) any contract of employment made before the date of the injury,
(b) any award or agreement relating to the employment,
(c) any hours worked or earnings received by the worker during the period of 52 weeks before the injury.
(2) If the consideration of those matters does not reasonably assist in determining the earnings that the worker could reasonably have been expected to have earned in the employment, the earnings are to be determined by having regard to the average weekly amount earned during the period of 52 weeks before the injury by other persons for the performance of similar work as the worker (whether or not with the worker's employer).”
This is consistent with Mr Hickey’s submission that the Commission can look to the award relating to the employment.
Mr Beran submitted if it is accepted that the position was for 40 hours per week, the award specifies that the rates of a manager of hotel, which he submits is equivalent, the rate is $24.81 per hour not including overtime or shift allowance, equating to $992.40 per week for 40 hours. Twenty hours per week would be $496.20.

The award refers to $199.46 as the value of shared room and no meals[46]. So Mr Beran submitted that this would need to be added on. Therefore, 20 hours per week plus the shared room is $695.66 per week. Forty hours per week plus shared room is $1,191.86.
[46] Brittliff’s reply p 156.
Mr Hickey submitted at page 60 of the Nominal Insurer’s reply there is a letter of calculation from Mr Brittliff’s solicitor referring to Schedule 3, cl 4 of the 1987 Act. This clause provides:
“(1) If, at the time of the injury, the injured worker had been continuously employed in employment for less than 4 weeks, the
‘pre-injury average weekly earnings’ in relation to the worker may be calculated having regard to the weekly average of the earnings that the worker could reasonably have been expected to have earned in the employment, but for the injury, during the period of 52 weeks after the injury.
(2) The regulations may make provision for the matters to be taken into account for the purposes of determining the earnings that the worker could reasonably have been expected to have earned in the employment, but for the injury, during the period of 52 weeks after the injury.”
The letter refers to the Hospitality Industry (General) Award 2020 and asserts Mr Brittliff would be classed as Wage Level 2 workers and provides the following calculation:
“Monday to Friday $21.19
Overtime $31.79
Saturday $26.49
Overtime $42.38
Sunday $34.64
Overtime $42.38
The calculation is based on Mr Brittliff working 10 hours per day. The solicitor then deducts $102.43 for one half of the accommodation allowance and it is submitted the PIAWE figure is $1,467.31.
Mr Macken in reply relies on Ms Crossey’s statement in which she said Mr Brittliff was kept busy for four hours of a day. He submitted that this reference to 10 hours per day is a gross over estimate. He also submitted that the reality was the only sum was paid to Ms Crossey and Mr Brittliff’s earnings were nil and the accommodation was provided for Ms Crossey and he got the benefit of it. He also submitted in reply that the Commission does not need medical evidence to find he had capacity for employment. However, again Mr Macken has not focused on the evidence of psychological symptoms following the incident. I find the applicant would need medical evidence to displace the only medical evidence from the doctors’ certifications.
In terms of how to calculate the PIAWE Mr Macken submits that at best he was a co-manager of a small caravan park at Nimbin and it is not appropriate to measure his PIAWE by reference to a manager of a hotel.
I find it is very difficult to accurately calculate the hours Mr Brittliff worked because it was a fairly imprecise set up. I am not satisfied he would have worked 10 hours per day, every day. I consider Ms Crossey’s statement that he was fairly busy most mornings is more reliable and I allow 28 hours per week. He may have also been involved in after-hours walks around the Park and sorting problems as they arose but I consider that allowing an average of four hours for seven days per week covers such duties. I find the calculation should be made by reference to the Hospitality Industry (General) Award 2020. I allow 4 hours Monday to Friday at the rate of $21.19 per hour, a total of $423.80 added to this I allow 4 hours for Saturday at the rate of $26.49 per hour, $105.96 and for Sunday I allow 4 hours at $34.64 per hour, $138.56. These sums add up to $668.32. To this I add the figure of $199.46 for the value of a shared room with no meals as the best approximation of the value to Mr Brittliff of this part of the salary package. Therefore, the total figure I allow for the PIAWE is $867.78.
For weekly compensation under s36 of the 1987 Act for the first 13 weeks from 23 October 2020 to 22 January 2021 95% of the PIAWE is the relevant compensation, being $824.39. I allow the same, which I calculate to be $10,717.07
For the weekly compensation under s37 of the 1987 Act from 23 January 2021 to 7 April 2022 when the current s145 notice ends, 80% of the PIAWE is the entitlement, so $694.22 per week. This is period is approximately 63 weeks so the total is $43,735.86
I allow reimbursement to the Nominal Insurer for its payments up to these figures which add to $54,452.93. This total is just short of the weekly payments made by the Nominal Insurer of $56,291.61. So I reduce the reimbursement to it to $54,452.93.
However, I give the parties liberty to apply if they consider the mathematical calculation I have made has an error.

[2022] NSWPIC 739

22 December 2022