Mepham v Raymond Harold Mepham

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mepham v Raymond Harold Mepham & Ors [2025] NSWPIC 311
APPLICANT:	Elizabeth Mepham
RESPONDENT:	Raymond Harold Mepham
SECOND RESPONDENT:	Daniel Mepham
THIRD RESPONDENT:	Alexandra Mepham
MEMBER:	Senior Member Kerry Haddock
DATE OF DECISION:	1 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum death benefit and interest; first respondent, the father of the deceased, disputed that the deceased was a worker or deemed worker and that the injury arose out of or in the course of employment; first respondent was deceased when the claim was made; deceased had previously been paid in cash or kind for work on first respondent’s property; no evidence of payments to deceased for some years prior to deceased’s death; concession by applicant that the evidence was “murky” and the claim was not a “lay down misère”; consideration of Jones v Dunkel, Luxton v Vines, Fuller-Lyons v New South Wales and Flounders v Miller; Held – evidence did not establish on the balance of probabilities that the deceased was a worker or deemed worker or that the injury arose out of or in the course of employment; award for the first respondent.
DETERMINATIONS MADE:	1. There is an award for the first respondent.

STATEMENT OF REASONS

BACKGROUND

In these reasons, I will refer to members of the Mepham family by their given names, to avoid confusion, and meaning no disrespect.
Mr Kevin Mepham (Kevin) died on 4 June 2015.
The applicant, Ms Elizabeth Mepham (Elizabeth), is Kevin’s widow. The second respondent, Mr Daniel Mepham (Daniel) and the third respondent, Ms Alexandra Mepham (Alexandra) are the children of the marriage.
The first respondent, Mr Raymond Harold Mepham (Raymond/Ray), who is alleged to have been Kevin’s employer, was Kevin’s father.
By letter dated 24 October 2023, Elizabeth’s solicitors made on Insurance and Care NSW (iCare) a claim pursuant to s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act) for the lump sum death benefit of $524,000.
On 13 March 2024, iCare issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
ICare maintained that the evidence did not establish that Kevin was a “worker” within the definition of “worker” in s 4 of the 1998 Act; or that Kevin was deemed by any provision in Schedule 1 to the Act to have been a “worker” employed by the first respondent.
If Kevin was a “worker” employed by the first respondent, iCare disputed that the evidence established that the injury that resulted in his death arose out of or in the course of the alleged employment, as required by s 4 of the 1987 Act; or, if it did, that the alleged employment was a substantial contributing factor to that injury, as required by s 9A of the Act.
By letter dated 25 November 2024, the applicant’s solicitors requested on her behalf that iCare review its decision to dispute liability.
On 9 December 2024, iCare issued a further notice, in which it reviewed and amended its decision. The basis of the dispute had not changed, but iCare also disputed liability for weekly payments and medical expenses, pursuant to ss 33, 59, and 60 of the 1987 Act.
The applicant lodged an Application in Respect of Death of Worker (Application) on 31 January 2025.
The applicant claimed that on 4 June 2015, in the course of his employment, Kevin stepped on a loose floorboard that propelled him forward, impaling him on a metal stake, thereby causing his death.
The applicant claimed the lump sum death benefit of $524,000.
The first respondent lodged his Reply on 17 February 2025.
The second respondent lodged his Reply on 26 February 2025.
The third respondent lodged her Reply on 11 March 2025

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the deceased was a worker or deemed worker, and
(b) if the deceased was a worker or deemed worker, whether the circumstances of his injury arose out of in the course of his employment. The first respondent maintains that the injury was unrelated to any relationship the deceased had with the first respondent.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation/arbitration hearing on 13 May 2025, on the Teams platform. Mr Beran of counsel, instructed by Mr Dufour, appeared for the applicant, Mr Harris appeared for the first respondent. Mr Grimes of counsel, instructed by Mr Noussair, appeared for the second respondent. Ms Compton of counsel, instructed by Ms Alawi, appeared for the third respondent. Elizabeth, Daniel, and Alexandra attended. Ms Ryder of EML also attended.
The second respondent had caused to be issued a summons to appear to Ms Leonie Turner, who is Raymond’s daughter and, of course, Kevin’s sister.
Mr Grimes advised that the second respondent no longer sought leave to cross-examine Ms Turner, and she was therefore formally excused from attendance.
I was advised that, should liability be determined in favour of the applicant, she, Daniel and Alexandra had agreed on a proposed apportionment of the lump sum death benefit.
The parties agreed that liability and apportionment should be determined first. If the applicant was successful, the parties would attempt to agree on the claim for interest on the lump sum and any claim for past weekly benefits for Daniel and Alexandra.
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 Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply by first respondent and attached documents;
(c)    Reply by second respondent and attached documents, and
(d)    Reply by third respondent and attached documents.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of Senior Constable Geoff Weller

Senior Constable (SC) Weller’s statement is dated 19 June 2015. He had refreshed his memory from the COPS (Computerised Operational Policing System) event, his notebook, and the photographs taken at the scene.
At about 4.18pm he and SC Greg Dillow responded to a message in relation to a male who had been impaled on a steel post and was not responsive.
He and SC Dillow arrived at the property, known as Little Valley, at about 4.35pm. An ambulance crew was on scene. The elderly parents of the male were also present.
He approached the two ambulance officers and saw that the male was covered in a blanket. He had a conversation with the officers, and they pulled back the blanket to reveal the male, now known to him as Kevin John Mepham.
He could see that Kevin had a steel star picket protruding through his right thigh. His head was away from a steel box trailer attached to a red ute.
Inverell VRA (Volunteer Rescue Association) members arrived soon after. Detective Joe Orr and Sergeant Ross Chilcott also arrived soon after.
Senior Constable Dillow obtained an identification certificate from Ray Mepham, the deceased’s father. Digital photographs of Kevin in situ and the area around where he was working prior to the fall were also obtained.
As paragraph 12 of SC Weller’s statement has assumed some importance, I reproduce it in full:
“I spoke to Mr Ray MEPHAM about what Kevin was doing that afternoon. Ray MEPHAM told me that Ray had arrived at the property at about 2pm to load wool bales onto his ute so he could transport them into Inverell where they would later be sold. Ray MEPHAM told me that at the time of Kevin’s fall he was in a nearby yard rounding up cattle on foot. He heard what he believed to be one of the wool bales falling into the trailer, making a loud thud sound. A short time later he could hear Kevin calling out in pain.” (Capitalisation in original.)
Ray walked to the wool shed where he knew Kevin was working, to find him laying [sic] on his back and the steel star picket protruding out of his right thigh. Kevin was groaning in pain.
Ray walked to his house, about 100m from the wool shed, to call an ambulance. He said this took him about 10 minutes, as he was not very mobile.
A copy of the 000 call was obtained. It was made at 3.55pm.
Following the call, Ray and his wife returned to Kevin. They said he was not responsive to them.
Paragraph 18 of SC Weller’s statement has also assumed some importance, and I reproduce it in full:
“It was clear that Kevin MEPHAM was in the process of loading wool bales into his vehicle and trailer. To enable him to get his vehicle close to the loading ramp, he removed sections of a fence that ran in front of the ramp of the wool shed. This fence was a form of ‘Race’ that guided sheep from a side paddock around one side of the shed to a ramp, where they would be lead for shearing within the shed.” (Capitalisation in original).
When removing the section of fencing, Kevin pushed the mesh panels against the shed but did not remove the steel star pickets. He parked the trailer between the pickets and hard against the dock. One picket, to the right of the trailer, was about 30cm to 45cm from the side of the trailer and about a metre from the dock.
Kevin had loaded three bales of wool onto the ute and was loading the first of the bales into the trailer. While doing this, he was spraying the bales with black stencil ink and a property stencil. He then hand wrote on the bales.
The first bale to fall into the trailer fell length ways. Beside it was a bale hook used to grab hold of the bales.
It appeared that Kevin had fallen forward with the bale, causing the hook to fly forward. He “would have” grabbed the rail to his right to steady himself and possibly attempted to land beside the trailer.
Senior Constable Weller then described further the circumstances of the injury, which it is not necessary to reproduce.
After SC Weller completed his duties at the scene of the incident, he and Sergeant Chilcott attended the Mepham homestead. Kevin’s parents, his wife, his children, and his in-laws had gathered.
Elizabeth told him Kevin was being treated for a number of issues but had been diagnosed with severely hardened arteries. He had lost his balance several times in the weeks leading up to his accident, causing him to fall over.
On the day of the accident, Mr Dennis Flett, Kevin’s father-in-law, offered to assist with loading the wool bales. Kevin told him he would be able to manage on his own.
It was not clear how long Kevin lay in situ before his father found him. On estimation, it would be about 10 minutes, with an additional 15 minutes for Ray to make his way back to his house to call 000. Then there was the response time for an ambulance crew from Inverell to get to the property.

Autopsy report for the coroner

It is unnecessary that I refer to much of the autopsy report, which is dated 9 June 2015.
The report stated that the deceased had a past medical history of rheumatoid arthritis, scleroderma, sleep apnoea, and mild pulmonary hypertension.
On 4 June 2015, the deceased was loading bales of wool onto a Toyota Hi-Lux ute from inside a shearing shed.
At about 3.00pm, the deceased was loading the fourth wool bale into the trailer when he appears to have slipped and fallen, impaling his right leg.
According to the deceased’s wife, he had a history of falling, was on multiple medications, and had recently undergone a cardiac procedure.
Although not severe, the coronary artery disease may have further hastened death. There was no indication that a cardiac event occurred which precipitated the fall off the trailer, and it is likely the fall was purely accidental.

Evidence of the applicant, Elizabeth Mepham

Included with the factual investigation in this matter is a document dated 17 March 2022, signed by the applicant, headed “summary of day of Kevin Mepham’s accident 4-6-2015”.
This statement was prepared in support of the applicant’s claim against Raymond’s estate. Much of the evidence is similar to the evidence the applicant later gave.
Relevantly, she stated that Ray rang at about 8.00am and asked Kevin to move wool out of the shearing shed and clean the shed ready for shearing. Kevin was very upset because he had planned to take Daniel on a fishing trip, which had to be cancelled for this job.
When they arrived at Little Valley on 4 June 2015, a police officer stopped her dad and asked him to get Kevin’s dog out of the ute. The trailer was still attached.
Elizabeth’s first formal statement is dated 15 December 2023. It was obtained by an investigator retained by EML.
She and Kevin were married in 1999. Daniel was born in 2003, and Alexandra was born in 2006.
Prior to Kevin passing away, they were living together in a property in Inverell, which they purchased after taking out a bank loan in 2010. The property had been paid off using the money received from Kevin’s life insurance.
Prior to 2010, she and Kevin lived in a cottage on the property Little Valley, which was owned by Kevin’s parents, Raymond and Edna Mepham. They performed work on the property in exchange for living in the cottage. They were also able to use the shearing shed and graze their cattle and sheep on Little Valley.
The work involved working on the fish hatchery and general jobs such as lamb marking, drenching, wool handling, fencing, spraying, tractor work, and general farm maintenance.
Kevin was performing this work as an employee of Ray Mepham. When they were at Little Valley he was being paid, but it was not a standard amount. He was paid all different types of money for the work on the farm and the work completed with the hatchery, which Raymond labelled “fish money”.
Raymond would sell the fish from the hatchery. He had the licence to sell them, and Kevin did not, so Raymond gave Kevin a share of the money as payment for his assistance.
Kevin was being paid small amounts of cash as well. He would be paid cash in hand for jobs such as tailing the lambs.
Kevin had his own ABN (Australian Business Number). He shared the same PIC (Property Identification Code) as Raymond. To sell stock, you must have a PIC. The PIC identifies where the animal was born. Kevin had 762 crossbred sheep during the last shearing before he died.
Raymond had merino sheep. When the sheep were sold, any money made off the merinos went into Raymond’s account, and any money from Kevin’s sheep was paid to Kevin. Kevin was selling sheep until the day he died. Kevin also sold bales of wool.
In around April they would do an early crutching of the sheep. Kevin would be wool handling. The average rate for wool handling in the years prior to 2015 was around $30 an hour. Kevin was paid cash in hand, or in material items.
Some items Raymond (gave) in exchange for Kevin to perform work included a four-wheel ATV (all-terrain vehicle), tractor tyre, fencing equipment, sprays, drenches, wool packs, grinding gear for the shed, and fuel. He would also pay for maintenance of the machines.
Raymond also provided food for the animals and storage for grain and hay. Raymond was farming the grain and hay. He would also lend her and Kevin his harvester, stock trailer and chaser bin to transport the grain if they had a crop.
There may have been other things she was not aware of. She thinks Raymond had given Kevin some sheep and wanted to give some to Daniel.
She also assisted and was paid cash in hand for wool handling. Kevin had been doing this since he was around 15, and she had been doing it since around 1999. Most of the time she was not given an invoice or payslip. Kevin did not get these either.
Raymond would contract shearers for the shearing. After the shearers left, she and Kevin would continue to work for a couple of days cleaning up the shed. Ray’s brother-in-law was also there, assisting with wool pressing.
She and Kevin started purchasing cattle from 2008. While Kevin was alive, they were selling cattle to the saleyards. They took the cattle to the saleyards once per year.
In 2000, Raymond and Kevin purchased Mountain Paddock. They had 50/50 ownership. She put money into the purchase but was not on the title. The property was ultimately to be an inheritance for Kevin.
When Kevin died, his half of Mountain Paddock went to Raymond, because it was a joint tenancy. Raymond did some work to ensure she received Kevin’s half. He also put in his will that if it had not been transferred prior to his death, it was to be transferred to her. He left the other half to Daniel and Alexandra.
Raymond passed away in 2021 and Edna in 2023.
Following Kevin’s death, she had been told by Raymond she was not able to move the car and trailer involved because WorkCover had to come. She was later led to believe, when Raymond said there was a sum of money coming due to Kevin’s death, that this was related to a WorkCover claim.
She did not meet with anyone from WorkCover. She was not asked to provide a statement. She thought that because it was Raymond’s property, they would just deal with him.
On the day of Kevin’s accident, he was at home with her. He received a phone call from Raymond at approximately 8.00am.
Raymond asked Kevin to go to Little Valley to clean the shearing shed because the shearers were coming. Kevin was upset because he had plans to take Daniel camping. Ray could be quite pushy. She thought Kevin was a bit afraid of him. When they lived at Little Valley, they would have bullets fired over the top of their house to wake them for work.
Kevin left home at around 10.30am or 11.00am, with the trailer attached to his red Toyota Hi-Lux.
Kevin stopped at the house on his way to the shearing shed, to see his mother. She asked Kevin’s mother later if Kevin had been upset, and she said he did not seem to be.
According to the police report, Kevin and Ray were both at the shearing shed. She was “assuming” Ray was directing Kevin what to do. Ray left the shed and was either herding cattle or at the granary. The cattle were hers and Kevin’s. She had one cow that had just had a calf, and she thought Ray went to check on them. He would have been 200m from the shed.
Ray apparently heard Kevin scream and went back to the shed. Kevin had fallen from the landing, which is a platform around six feet above the ground outside the shed. He had reversed his trailer up to the platform so he could push bales of wool onto the trailer. The bales of wool would have had details on them to identify who owned them. It was possible SafeWork or the police took photos of the wool.
There could have been a mix of Ray’s and Kevin’s wool in the trailer. Ray had requested that Kevin clean up any off-cut pieces, any bales of wool, finish the wool pressing, and clean the shed, in preparation for the shearers to arrive.
She was not sure when the accident happened. She thought it was around 1.00pm or 2.00pm. She was alerted at around 4.00pm.
Kevin’s sister arrived at her house. She said there was an accident at the farm and Kevin did not make it. Her dad was there, and he went inside and told the children. He said he would get her mother, and she and Leonie should go to Little Valley.
When she arrived, the police and ambulance were still there. They were told by the police to go to the house.
The police came in and told them what had happened. They were told the coroner would be coming to collect Kevin’s body. The ambulance left and at around 9.30pm the coroner arrived.
After Kevin passed away, she continued to perform work for Raymond in the shearing shed and on the farm at Little Valley. Their cattle remained there, and their sheep remained on Mountain Paddock.

Kevin’s sister was the executor of Kevin’s will. She was coming to her house every day, opening his mail, and was there all the time. She contacted her solicitor, and he advised that she was the executor until she passed away, and then Leonie would be the executor.
After Ray passed away, she was provided with a copy of his will. Leonie and Edna were the executors. Raymond had noted in his will that if the Mountain Paddock property had not been passed to her at the time of his death, this needed to occur. He also noted that his half of the property would go to Daniel and Alexandra.
After she read the will, Leonie told her that her father had given her half of the property out of the goodness of his heart, that was her payment, and she did not have any further entitlement. This led to an argument with Leonie.
Within two weeks of this conversation, she received a letter from Leonie stating that she had to remove her belongings, including her cattle, from Little Valley, as the property would be sold.
This letter, which is dated 22 April 2021, is in evidence.
The letter advised Elizabeth that she was not to enter Little Valley without Ms Turner’s permission.
From the date of the letter Elizabeth had two weeks to remove her stock, the temporary stock yards she had erected in the lucerne paddock, two vehicles, her furniture, all scrap and rubbish, three dogs, and the rotary hoe that belonged to Kevin.
Elizabeth was to return all keys to Ms Turner and was not to remove any other items. The letter referred to a conversation on 12 March 2021, when Elizabeth was made aware that the property was to be sold.
She had put over $100,000 into the cottage at Little Valley. They built sheds, gardens, “chook” runs, installed tanks and concrete slabs. They repainted the cottage and sanded the floors. The water pump under the house and all the kitchen appliances belonged to Kevin. Kevin understood that when his father passed away, he would inherit Little Valley.
When they moved to town in 2010, Kevin was very depressed. They had moved from Little Valley, and he had been diagnosed with rheumatoid arthritis. Raymond had promised that he was going to purchase items such as a water tank to assist them in building a house on Mountain Paddock.
When he heard he had rheumatoid arthritis, Kevin was upset because he thought he would be unable to perform work for his father anymore. He may also have been concerned that he could not perform work under his own ABN, but he had her and the kids to assist in this.
Kevin commented to her that he was upset that his friends’ fathers had left the farming businesses to them, and his father wanted to continue to be in control and not hand over to him.
Kevin had been admitted to hospital with pneumonia. He had got the flu because the tablets he was taking lowered his immune system. He had said he felt useless and should just do away with himself.
Following this illness, she would go with Kevin to the farm most days because she did not want him there on his own. One of her first questions on the day of his accident was whether it was deliberate. The police confirmed this was not the case.
At the time Kevin passed away, Daniel was 12 and Alexandra was 9. They were both attending primary school. Either she or Kevin paid the school fees.
She and Kevin paid for all the clothing, shoes and toys. The kids did chores around the farm for Raymond, and he would pay them pocket money, which they used to buy clothes and other things.
Kevin was in receipt of a disability pension of around $800 per fortnight. He started receiving this from approximately 2010 or 2011. She thought this was another reason why Raymond would give Kevin cash for any jobs, because if it was paid into his account, it could affect his pension.
When they purchased Mountain Paddock, they were around $30,000 short for their half. Edna lent them the money, and they paid it back. Ray paid Edna a wage every year.
Alexandra was struggling with school because she had ADHD (attention deficit hyperactivity disorder). She had to pull her out of school because Leonie was a teacher there. She was being homeschooled. She was trying to apply for a pension for Alexandra. Alexandra’s anxiety was severe, and she had difficulty leaving the house. She was concerned that Alexandra would be unable to work, and she also needed treatment.
She was performing work with her own cattle and sheep. Her accountant had told her she was in debt. She did not make money that year. She went to the pantry shops for food, grew her own vegetables, and got her clothes from “Vinnies”.
She had been living on Kevin’s superannuation of around $45,000. She had had her own ABN since 2015. She had had to change the PIC and purchase new ear tags because the sheep and cattle were no longer associated with Little Valley. The PIC for the Mountain Paddock had been assigned to both Kevin and Raymond, so when she was selling stock after they died, she did not know the PIC had been changed.
She understood that any payments from Raymond did not include tax or super and the only money in Kevin’s super was from money he had earned a long time ago. Kevin was not contributing to his own super fund.
She was in a de facto relationship. She paid all the rates and bills for (her) property. Her de facto partner had his own home, for which he paid the rates. They sometimes bought each other meals. He paid for fuel so she could travel to the farm. He retired in 2022 and would qualify for the aged pension in 2024.
When Raymond died and she found out she was not in the will, she spoke to Sue Dakin, a solicitor in town, and tried to make a claim for family dependency. The barrister determined they would not be entitled to this, and the case was dismissed.
She then sought a second opinion from YJP Legal in Brisbane. They agreed she did not have an entitlement, and asked what happened with the WorkCover claim. They looked into her wages. They were going to see if any entitlement to wages following Kevin’s death could be recouped. She was told this would cost around $11,000 and she would only receive around $25,000, so she did not pursue the wages claim.
The solicitors determined they would have a better chance pursuing the WorkCover claim, and (advised) it was not unusual for farmers to pay family members in cash or materials.
After a period of time, she contacted Yvonne at YJP Legal about what was happening with the claim. Yvonne engaged a Penny Waters from Armidale who assisted in arranging separate representation for Daniel and Alexandra.
Towards the end of 2022, Yvonne became unwell and let her know she was ceasing work.
She then engaged her current solicitors to restart the claims process with iCare. She did not think Yvonne had got to the stage of approaching EML.
Yvonne had copies of relevant financial information which demonstrated Kevin was an employee of Raymond, as well as affidavits from her and her children, from Sue Dakin from the dependency claim. Yvonne was also provided with the death certificate, birth certificates, and marriage certificate, as well as the coroner and police records. As far as she was aware, she passed them to her new solicitor. She had also forwarded copies to her new solicitor.
She did not have anything to do with Leonie anymore. She had no ongoing relationship with Kevin’s youngest sister.
Elizabeth made a second statement dated 22 November 2024. Much of her previous evidence is repeated.
She and Kevin relied on each other as co-dependents and shared their wages for living expenses and looking after the children. The children were fully dependent on them.
Until Kevin’s death, they used both wages to repay the mortgage, pay for groceries, vehicle maintenance, power and electricity bills, and the children’s school fees, sports, and well-being.
Ray paid Kevin in different ways. He would pay Kevin for work he did with the hatchery, which was accounted for as “fish money.” Ray had the licence to sell them, so he would give Kevin a share as payment for the work Kevin did in the hatchery.
Ray would also pay Kevin by giving him sheep, wool, and machinery parts in lieu of wages.
When Ray did pay Kevin, it was almost always in cash. There were occasions when Ray would pay by cheque.
After receiving legal advice, she made a claim for the workers compensation death benefit.

Applicant’s financial records

There are attachments to the factual investigation of Quantumcorp dated 9 January 2024, which are referred to as documents provided by Elizabeth.
There is a National Australia Bank deposit book, apparently belonging to Kevin, that covers the period from 17 November 2011 to 28 February 2014.
Details of deposits include “sold x B (?) lambs”, “wool network”, “sold wool”, “fish money”, “wool”, “Australian Wool Network” and “Goodas Wool Trading Invest” (?).
The documents include a Partner’s Current Account for the year ended 30 June 2013, for Kevin J. Mepham, farmer, Inverell.
The documents also include a vendor declaration and waybill, signed by Kevin on 11 November 2014, for the consignment of 32 sheep or lambs to John Mair at Inverell Sale Yards.
There is a tax invoice issued to the applicant by G.R. & M.U. Notley & Cabalta & M.U. Notley; Cabalta Pty Ltd t/as Notley Wool & Fibre Testing, dated 19 November 2015.
The tax invoice refers to bales, a description of their contents, weight and price. The total of the invoice is $1,841.83.
The applicant has given no evidence about any of these records, apart from stating that she had given her solicitor relevant financial information that demonstrated Kevin was Raymond’s employee.
The applicant has given no explanation for the absence of any other financial records.

Evidence of Dennis Flett

Mr Flett’s statement is dated 12 October 2024.
Since around 1999, he would help Kevin do some work on his farm. He helped with things like cutting wood, in the shearing shed, and fencing.
He normally helped Kevin on the weekends. He was not paid a wage but enjoyed helping and getting outside.
Over the years he also started to help Kevin when he was working for his father. He would often help Kevin with things like cutting wood, in the shearing shed, at the fish farm, fencing, gardening, and general labour.
In around 2014, he retired from work. After this, he started to help Kevin and Ray a lot more regularly.
On the morning of 4 June 2015, he received a call from Kevin. They had planned to leave for a fishing trip that day.
Kevin told him he couldn’t go as Ray asked him to go to the farm and clean out the woolshed, as the shearers were starting work the next week. Kevin told him he had to go straight away. He had a few other things to do, so he couldn’t go to help Kevin.
Later that day he was at Elizabeth’s house when Leonie came to the house and told them about the accident.
They headed to the farm. There were the rescue squad and the police, and the ambulance had just left.

Evidence of Daniel Mepham

Daniel’s statement is dated 25 February 2025.
He was then 21 years old.
He was 12 when his father passed away.
He graduated from year 10 in 2019.
After high school, he worked in landscaping. He worked as a farm hand, then went to the abattoirs and started shearing. He had been working as a shearer for two years.
Kevin was actively involved in his education, development and well-being. He paid for the vast majority of expenses, with the remainder paid by his mother.
Even though he was very young when his dad passed away, he was always under the impression he worked for his granddad. He had this impression as (Kevin) was always working on his farm and whenever they were home together and his granddad said something needed to be done his dad would do it.
He still lived with his mum and sister. Sometimes when he was working, he was sent to farms, and they provided accommodation.

Evidence of Alexandra Mepham

Alexandra’s statement is dated 4 March 2025.
Her father passed away two weeks before her eighth birthday.
Her father played a significant role in her life, providing both financial and emotional support. He paid for her schooling, after school activities, food, clothing, and day to day expenses.
Her father’s death had a profound effect on her, mentally and emotionally. She was later diagnosed with ADHD and had struggled with adjusting to life without him.
Following her father’s passing, Daniel began to act out. In response, she felt the need to remain quiet and supress her grief. This made it difficult for her to process her emotions properly.
She had faced significant challenges in her education. She had to repeat year 10. She was in year 12, and uncertain if she would graduate.
She was aware that her father worked for his father, Ray Mepham. He did various jobs on the farm, including working in the shearing shed. He helped with fish hatchery, sheep work, cropping, and farm duties.
Her dad did some work on his own on the smaller block, but that was more of a hobby, as he didn’t make anything from it. Her understanding was that the business was owned by both her father and grandfather.
Her grandfather assisted her father in purchasing a new block of land, but her father contributed significantly to the business and its operations.
Her father was deeply involved in her life, beyond financial support. His loss had had a lasting impact on her life, affecting her mental health, education and overall well-being.

Evidence of Leonie Turner

Ms Turner’s statement is dated 14 December 2023.
She did not have a role within her father’s business, R H Mepham. Her father passed away in 2021 and she and her mother were executors of his will.
R H Mepham was a farmer/grazier business. Her father also had a native fish hatchery. He also farmed pastures such as hay, lucerne, and oats, for his animals. His main income came from grazing sheep and selling wool.
The woolshed was on her father’s property at Little Valley. He lived there with her mother until November 2020 when they both went into hospital and later aged care.
Her mother passed away in 2023.
She has a younger sister who was not involved in either Raymond or Kevin’s businesses.
Kevin and Elizabeth resided in a cottage at the Little Valley property before they moved to Inverell in approximately January 2010.
In 2000 her father purchased, jointly with Kevin, a 287.4 hectare plot known as Mountain Paddock, which is part of a larger piece of land known as Newstead. The idea was that when her father passed away, Kevin would inherit the other half of Mountain Paddock. It was known as a joint tenancy.
However, Kevin passed away before her father, and her father inherited Kevin’s half of Mountain Paddock. Elizabeth was upset by this. She understood from her father’s records that he paid all transfer fees so that Kevin’s half of Mountain View went to Elizabeth.
The property ownership was changed to tenancy in common before the transfer, so her father could leave his half of Mountain Paddock to whom he wanted. He also updated his will so Daniel and Alexandra would inherit his share of Mountain Paddock.
After Mountain Paddock was purchased, Kevin and her father farmed and grazed their own half of the property.
Her brother finished school in year 10 and started working with her father, learning how to run the business, grazing sheep and selling wool. He also helped with the fish hatchery.
She presumed her brother was initially paid in a similar way to a casual agreement. There were no payslips. She had only been able to locate cheque butts. She believed Kevin would have been paid in this way until he got his own ABN and had his own flock.
She was aware that Kevin and Elizabeth paid only for the amenities of the cottage at Little Valley. They had the use of free agistment and their own sheep and cattle on the property. Little Valley joined to Mountain Paddock by a one corner gateway.
Kevin’s and her father’s sheep could move between Little Valley and Mountain Paddock. However, they did not run the sheep together. The sheep were different breeds and kept separate.
Ashley Mepham was employed by Ray on a casual basis, performing shearing and other farm work. There are records that in 2020 Daniel was also being paid by her father for casual work on the farm. There are records showing that Elizabeth was paid wages for work at Little Valley. If Kevin had been paid a wage, it would have been recorded.
Kevin had his own ABN. He worked under the name K J Mepham as a sole trader. He sold wool, sheep and cattle. She did not know a lot about how he sold the wool. She was aware that when he died, he was loading wool bales containing wool from his sheep onto his trailer. She believed Elizabeth took them to a broker in Glen Innes to sell a few days later, after WorkSafe [sic] had completed their investigation.
She was pretty sure Kevin would take the wool to a broker when he had any to sell. She did not recall him selling them at auction. She had very little to do with their business.
As of 2015, Kevin had around 800 head of crossbred sheep. He owned the sheep and Mountain Paddock, on which they were grazed. Her father had mostly merinos, which looked quite different, and their ear markings were quite different, so it was easy to identify which sheep belonged to her father and which to Kevin. They would have systems to keep them separate.
Her father allowed Kevin to use his shearing shed at Little Valley. Her father also owned the machinery and equipment in the shed. Her father maintained the shed and equipment. Kevin did not shear his own sheep. She was unaware of who did this. Her father paid shearers to shear his sheep and shed hands to assist.
Kevin also had cattle on Little Valley. She was not sure how many cattle he had. There were two cattle yards on the property. Her father had not had any cattle for many years prior to Kevin’s death. The cattle on Little Valley were all owned by Kevin and Elizabeth. There was one existing cattle yard and one temporarily built by Elizabeth.
The cattle Kevin kept were beef cattle. She recalled conversations where her father provided Kevin with advice in relation to selling the cattle. She was not aware of who the cattle were sold to, or how many Kevin sold.
She was not aware of the specifics of how the lucerne and oats her father grew were turned into hay. He fed this to his own animals. Kevin also used this to feed his animals.
She had located records, handwritten in notebooks, cheque butts, and wage books that her mother and father had kept in relation to every payment in or out of their business from as early as 1984. They had even noted cash payments, generally small amounts for living expenses. They noted the date of the withdrawal, the amount and the cheque number.
Her parents kept meticulous records and there were no records of wages or any other payments to Kevin either on the day he died or for a long period before that.
From as early as 2011, her parents were employing staff to work in the shearing shed. They had always paid people to shear the sheep. However, they also required assistance with running the shed and maintaining the farm. They hired people to help with this.
Kevin had rheumatoid arthritis and scleroderma, which affected his strength and mobility. He was in pain a lot of the time. He was unable to grip properly. It was possible his grip on the hook when moving the wool bales was affected and this could have contributed to the accident. This was just speculation on her part.
Her father did a lot to support and assist Kevin. He would help him if he needed it. He provided a place to live, equipment and materials for Kevin to help with managing his own business.
Elizabeth had performed some work in the shearing shed for their father. She had requested cash payments, which was paid out of their mother’s bank account. Later, their father paid her by cheque, as he was beginning to have trust issues with her and was concerned about what she might do in the future.
Her father had a lot of trepidation with Elizabeth and her intentions. It was a consistent worry for him.

She did not recall her father ever talking about paying Kevin for performing work. She firmly believed that any assistance Kevin provided to her father was as his son and not as an employee.
Kevin would not have been able to provide much assistance to her father, in particular in the lead up to his death, due to the rheumatoid arthritis and scleroderma he had suffered from for around 10 years prior to his death. She was not aware of when this was formally diagnosed.
She was fairly certain Kevin was on a disability payment of some sort. She was aware that he was provided with two pairs of special footwear to assist with his mobility and balance.
She disputed any claim that Kevin was an employee and in receipt of wages from her father’s business at the time of his death.
She had gone through every cheque book her parents kept, dating back to 1984, and had made notes on each date, including the cheque numbers, for payments made to Kevin and Elizabeth. There were no payments made close to Kevin’s death which would demonstrate that he was employed by her father when he died.
She had had to go through these records because Elizabeth intended to make a claim against her father’s estate. She was trying to claim that Daniel and Alexandra were dependent on Raymond.
The claim was not successful, from what she understood. It may have been withdrawn, as there was no case. Daniel and Alexandra each inherited a quarter of Mountain Paddock, each of which was to the value of over $775,000 in total, from her father.
On the day Kevin passed away, her father called her to let her know. She did not recall him saying anything about how the accident occurred.
Her father asked her to see Elizabeth at her home, to tell her what happened. Upon her arrival, she was met by Elizabeth at her gateway. She threw her arms around Elizabeth and wept as she told her about Kevin’s death.
Daniel, Alexandra, and Dennis Flett came out to greet her. When Dennis realised what had happened, he took the children inside.
She cannot remember exactly when that afternoon or evening Elizabeth told her Kevin had not said goodbye, because they had had a disagreement. Her brother would have been very upset by the argument. This was evident by him spending approximately two hours talking with her mother when he arrived at Little Valley, before he went to the woolshed to load his wool.
In her opinion, knowing her brother well, she could imagine he would not have been in a good “headspace” before heading to the woolshed. As far as she knew, Kevin did nothing else on Little Valley that day prior to going to the woolshed.
Her mother’s recollection of what Kevin told her was “Kevin argued with Elizabeth on the morning of his death. He was sick of living in the mess at his home…and wanted Elizabeth to contribute to cleaning up and not leaving it for him when he came home from work.”
She was an advocate for her father on the day that WorkSafe [sic] conducted their investigation at Little Valley. The information disclosed definitely indicated Kevin was working for himself, loading wool bales from his clip, which came from the business run by Kevin and Elizabeth.
Elizabeth had copies of the coroner’s report and death certificate. She would have copies of any records from police and ambulance. She remembers Elizabeth telling her the scleroderma had started affecting Kevin’s brain. She did wonder how much longer he would have had to live if this had not happened.
Police and ambulance services attended, as well as the VRA Rescue Squad. She did not have copies of the coroner and police reports, or birth, marriage and death certificates.
She and her mother were the executors of Raymond’s will. She discussed with her mother her father’s wishes, and they carried them out. A payment was required for workers compensation insurance. This was paid and her details were attached to her father’s account. This was how case manager Rachel R (Ms Ryder) from EML first made contact with her in relation to this claim.
Rachel informed her she was making a courtesy call, as the company contacted all clients who had a claim made against their policy. She informed Rachel that her mother had by this time also passed away.
Rachel told her Elizabeth had recently made a claim that Kevin was working for their father at the time of his death. She disputed this with Rachel, and said Kevin was working for himself, loading his own wool bales onto his ute and trailer, at the time of his death. Kevin was using the stock loading platform at the back of the woolshed, instead of the loading platform on the northern side of the woolshed, which was purpose built for the job.
Elizabeth confided to her in approximately December 2020 that she was in a de facto relationship and intended to move in with her partner. She believed that the applicant had resided elsewhere in Inverell for the last three years.

First respondent’s records

The records referred to by Ms Turner are in evidence, as are her notes.
I do not intend to refer to the records in detail.
There are records of payments to Kevin recorded as “wages”, “shares”, “casual wages”, payment for fuel and repayment on a four-wheeled bike, superannuation, and some payments with no description.
There are records of cash payments, and to whom they were made.
There is no record of any payment to Kevin in the period from 2011 to June 2015.
There is a tax invoice dated 7 December 2015 from “Liz” Mepham for lamb marking, in the amount of $750.
There are records of various payments to the applicant for work in 2015. There is a record of a payment to Liz Mepham on 21 August 2015 for shed hand, in the amount of $1,749.
There is a record of a payment to Elizabeth Mepham on 30 September 2015 for casual help, in the amount of $600.

Kevin Mepham’s tax return

Kevin’s tax return for the year ended 2015 described his business as sheep and beef cattle farming, under the business name Kevin J Mepham.
Kevin’s income was derived from interest and dividends and primary production.

SUBMISSIONS

The parties’ submissions have been recorded, and a transcript is available. I will therefore provide a summary of the submissions.

Applicant

The applicant submitted the real issue is why the deceased was loading bales of wool into the vehicle, and whether he was doing it in the employ of the first respondent.
The applicant submitted there was enough evidence for me to be comfortably satisfied that the deceased was acting at the direction of the first respondent, and in the expectation of receiving some form of payment. If the answers to both were in the affirmative, the issues in dispute would be found in favour of the applicant, the second respondent, and the third respondent.
The applicant conceded it was fair to say that the evidence was “murky”, but submitted that, read as a whole, the balance favoured the applicant.
The applicant submitted the first respondent relied essentially on the evidence of the deceased’s sister. By her own admission, she knew nothing about the running of the farm. Some of her evidence was favourable to the applicant. Her evidence did not assist me in determining the issues.
The applicant referred to the evidence of SC Weller that the deceased was loading Ray’s wool bales into his trailer, to sell for his financial benefit. That was very strong evidence that the deceased was working under Ray’s direction, for his financial benefit. There was nothing else in SC Weller’s statement that would assist me.
The applicant referred to her statement dated 22 November 2024. She and Kevin were paid in various ways, which would not have been documented.
Kevin and the applicant were almost always paid in cash. That was important because the first respondent would allege there were no records of payment, but records of cash payments would not occur. There were obviously other payments in lieu of wages that would not be documented.
The applicant fully admitted that the deceased had his own business.
The applicant submitted there was a clear direction from the first respondent that the deceased go to the property. There was a concession from Ms Turner that Raymond owned the shed. The deceased was told to clean “my woolshed” and remove “my wool bales.” (I note there is no reference in the applicant’s evidence to either “my woolshed” or “my wool bales”.)
The applicant referred to Mr Flett’s evidence that the deceased had to go to Little Valley straight away.
The applicant submitted that, while they were children, the second and third respondents at least had the impression that the deceased worked for Raymond.
The applicant submitted it was fair to say there was “bad blood” between her and Ms Turner. Ms Turner could not make assertions as to how people were paid or what occurred on the property with any certainty. This compared with the applicant and Mr Flett, who worked there under Raymond’s direction.
The applicant submitted that Ms Turner’s belief that the deceased was paid in a similar way to a casual agreement until he got his own ABN, and then paid through his ABN, was not based on any fact or verifiable evidence, and was rebutted by the applicant.
The applicant submitted the fact that there were records of the first respondent paying others in 2020 is not necessarily relevant to whether he employed the deceased at the date of his death. It was relevant that the first respondent required people to work on the property after the deceased’s death. He required more people because the deceased and the applicant were not there.
The applicant referred to her evidence that she was paid cash in hand, and at the relevant time that was not recorded, the inference being that such payments were not recorded.
The applicant submitted that Ms Turner’s evidence that the deceased was loading his own wool bales onto his own trailer was rebutted by Raymond’s statement to the police. That was much better evidence, as it was taken on the date of the deceased’s death, and not years later.
The applicant submitted it was clear that the farm required other people to assist it to function, and, referring to the evidence that it took Raymond 10 minutes to walk 100m, it can be assumed he required assistance, and the deceased provided it.
The applicant submitted that, as she had been paid in cash, with payment by cheque only reinstated after Kevin’s death, it was easy to infer that Kevin was also paid in cash, of which there was no record. Ms Turner confirmed that. Payment of cash in hand negated any record, especially if the cash was coming from the deceased’s mother’s account.
The applicant submitted there was clear evidence from the first respondent on the day of the deceased’s death that he directed the deceased to clean out the woolshed, which he owned, in preparation for work that needed to be done for his farm. The deceased was loading Raymond’s bales onto Raymond’s truck.
The applicant submitted any allegation by Ms Turner as to what occurred on the property was based upon absolutely no knowledge of what occurred there. The direction to work at the farm was witnessed by the applicant and Mr Flett. Mr Flett also confirmed that over the years, he performed pro bono work, with the deceased, on the farm.
The applicant submitted I could deduce the deceased was working at the direction of his father, with the expectation of money, cleaning out his father’s shed, working on his father's wool, from which his father would get the financial benefit. There was support that the deceased was paid in cash or in kind, so there was no evidence of that. There was evidence that other people got paid in cash or in kind at the same time, and they also did not have records.
The applicant conceded the case was “not a lay down misère”, or 100% favourable to her, but submitted there was evidence to find on the balance of probabilities, that the deceased was a worker for his father at the date of his death, and he was in the course of his employment for his father when he passed.
In reply to the first respondent, the applicant referred to r 73(c) of Personal Injury Commission Rules 2021 (the Rules). She submitted that Ms Turner’s statement assumed, speculated, and was unacceptable. At best, it should be given minimal weight.
The applicant referred to her evidence that every year, the deceased did wool handling for Raymond in April. In early June, the deceased was directed to clear the shed, including the wool bales, by Raymond, and he was loading them “onto his vehicle, a vehicle, any vehicle”, but he was directed by the first respondent, and in the course of doing so he passed away. We know there was wool produced in that shed every year in about April, and that wool was the first respondent’s wool.

Second respondent

The second respondent adopted the applicant’s submissions.
The second respondent referred to s 76 of the Evidence Act 1995 (the opinion rule) and submitted Ms Turner’s evidence did not fall within the exception for which s 78 provides. The rules of evidence did not apply, but they were instructive.
The second respondent submitted Ms Turner’s evidence did not provide any basis to support her opinion based on what she saw, heard, or otherwise perceived. It should be given extremely little, if any, weight.
The second respondent submitted Ms Turner did not say she had a close relationship with her parents, spoke to them regularly, or knew how payments were done or how the farm worked. She had made concessions regarding her lack of knowledge. Her presumption that her brother was paid in a similar way to a casual agreement was from someone who clearly had “an axe to grind”. She was deliberately trying to prevent the dependants from receiving their money, due to “bad blood”, which was evident from the other evidence.
The second respondent submitted that Ms Turner’s evidence that Raymond kept meticulous records was a gross overreach. It was “an extremely long bow” to consider that the records were meticulous.
The second respondent submitted that Ms Turner’s evidence that the deceased was not able to provide the first respondent with much assistance was inconsistent with the deceased working on the farm for himself. It was inconsistent with other evidence, and another example of Ms Turner’s bias in circumstances where she conceded she had little knowledge of what happened.
The second respondent submitted the first respondent’s highest case was the absence of records of payments in very sparse business records. He submitted Ms Turner’s opinion evidence should be rejected.
The second respondent submitted there were no primary documents to support Ms Turner’s hand-written summary, no tax records from the first respondent, and no WorkCover or SafeWork documents, so that a Jones v Dunkel[1] inference should be drawn.
[1] [1959] HCA 8; (1959) 101 CLR 298.
The second respondent finally submitted that the deceased was a worker, he was performing duties on the day of his death in the course of his employment, and there should be a finding in favour of the claimed death benefit.
In reply to the first respondent, the second respondent “echoed” the applicant’s submissions. He submitted that whether it was the first respondent’s wool was irrelevant. The deceased had been directed by the first respondent to clear the shed. He was directed to do a number of things, and putting the wool on the truck, if it was his, was one of them. It was all-encompassing in the direction given by his employer.
The second respondent submitted that r 73 of the Rules goes further than the Evidence Act 1995 and Ms Turner’s evidence was unacceptable. It was not a matter of weight.
The second respondent submitted there was no need to cross-examine Ms Turner. It was not a breach of Browne v Dunn[2] if the documents gave notice that the evidence would be challenged in a particular way – New South Wales Police Force v Winter[3]; West v Mead.[4]
[2] (1894) 6 R67.
[3] [2011] NSWCA 330.
[4] [2003] NSWSC 161.

Third respondent

The third respondent repeated and echoed the submissions of the applicant and second respondent.
As regards the indicia of deemed worker conditions, the third respondent submitted the only evidence about the work the deceased was undertaking in his own ABN came from his sister and was at best hearsay. The best evidence was that of the applicant, who was working with the deceased at the time.
The third respondent submitted the highest point of the evidence in terms of meticulous records was that the applicant sold some type of product for $1,842 on 19 November, either in 2015 or 2016. It was some time after the death of the deceased. We do not know what the description was.
The third respondent submitted it was quite clear from the first respondent’s profit and loss statements that at the time of the deceased’s passing, Raymond was undertaking a business of sales of wool and trading profits from sheep. There was no evidence that the deceased was undertaking work that was incidental to either, apart from farmhand work.
The third respondent submitted the first respondent’s profit and loss statements should hold considerable weight, as independent evidence as to what he was undertaking at the time. Ms Turner did not know what was being undertaken in her father’s business and everyone else had passed away. The best evidence was that of the applicant, who was there at the time and undertaking the work.
The third respondent submitted there was evidence of cash coming out of the first respondent’s business and I would be satisfied that some was going to the deceased. There was no reason for cash coming out other than payments of cash in hand.
The third respondent submitted there was evidence of additional payments “on the books” for the shearing in August 2015, after the deceased’s death. There were three shedhands where there had previously been only one.
The third respondent submitted that, with the exception of the document evidencing the receipt of $1,842, there was no evidence of the deceased buying and selling wool.
The third respondent submitted simply having an ABN was not relevant. The type of work that was being undertaken was relevant to the indicia.
The third respondent submitted if I was not satisfied the deceased was a worker, I would be satisfied he was a deemed worker.

First respondent

The first respondent submitted that, assuming the deceased was a worker, the type of work he was performing at the time of his death is crucial.
The first respondent submitted that when paragraph 12 of SC Weller’s statement is read with paragraph 18, it is clear that the reference can only be a reference to Kevin. The applicant had conceded that Kevin was loading wool bales onto his trailer. If “Kevin” is not substituted for “Ray” in paragraph 12, it makes no sense.
The first respondent’s case, supported by the best evidence, was that the deceased was loading his own vehicle with wool bales. The significance of this is that the applicant’s case was that the deceased attended the property in response to a request by the first respondent to assist in quite different activities, namely clearing the shed in anticipation of the shearers arriving.
The first respondent submitted that the request was made of the deceased at about 8am, and the accident occurred at about 2.00pm. The obvious inference, absent any evidence to the contrary, was that the deceased may well have attended the property that morning to do the activities referred to in the applicant’s evidence, but at some stage, before the accident occurred, he had commenced loading his wool onto his vehicle.
It is the applicant's case that Kevin attended to assist in clearing out the shed. It was quite possibly the case, as the applicant stated, that Kevin was asked, at about 8.00am, to go. The accident occurred at 2.00pm. At some stage before the accident, Kevin commenced loading his wool into his vehicle.
The first respondent submitted that the Evidence Act 1995 did not apply. Section 43(2) of the Personal Injury Commission Act 2020 (PIC Act) provides that the Commission is not bound by the rules of evidence. Rule 73 of the Rules indicated how evidence was to be approached.

The first respondent submitted the evidence of the police officer should be accepted, although it was clear that in paragraph 12, he was referring not to Ray, but to the deceased.
The first respondent submitted the onus was on the applicant to establish that at the time of the accident the deceased was a worker. There was no evidence to satisfy the onus.
The first respondent submitted the arrangement was common in farming and in families. There was no evidence of any payment to the deceased for some years before his death. The records were meticulous, indicated by the fact that they were very detailed, and spanned a long period. The first respondent referred to Ms Turner’s evidence of the support Raymond provided to the deceased.
The first respondent submitted the applicant’s statement was not as detailed as it could have been. The fact that the deceased had an ABN and sold cattle, sheep, “etc”, fitted neatly with the evidence that he was loading his wool into his vehicle. It was very strong evidence that refuted he was doing anything in relation to whatever the arrangement was between him and his father.
As regards the second respondent’s submission that a Jones v Dunkel inference should be drawn against it, the first respondent submitted the opposite applied. It was open to the applicant to serve a Direction for Production for the primary documents or for her solicitors to request them. No request was ever made.
As regards the reference to SafeWork documents, the first respondent submitted it was hard to understand their relevance, but the applicant could have obtained and used them. The only inference to be drawn was that they would not have assisted. The significant omission in the applicant’s evidence is that, apart from the records produced by Ms Turner, there were no financial records whatsoever relied on by the applicant.
The first respondent referred to the deceased’s 2015 tax return, which was inconsistent with him being a worker of any entity in the year of his death. If reliance was to be placed on Jones v Dunkel, an inference could be drawn that financial records, which were presumably available, would not have shed greater light on the deceased’s activities.
The first respondent submitted that criticism of Ms Turner was unfair. She had been summonsed, but the request for cross-examination was withdrawn.
The first respondent referred to Ms Turner’s evidence about the purchase of Mountain Paddock in 2000 and the separate breeds of sheep owned by the deceased and Raymond. It submitted the applicant had given no evidence to the contrary. I would accept Ms Turner’s evidence that the applicant took the wool the deceased was loading on the day of his death to Glen Innes to sell a few days later, absent any evidence from the applicant to the contrary.
The first respondent submitted the evidence was overwhelmingly against the proposition that the deceased was a worker employed by the first respondent at the time. The activity he was performing at the time of the accident had nothing to do with that arrangement and was entirely connected with his own business activities.
The first respondent referred to the evidence of early crutching, during which the deceased was wool handling. He submitted there was no evidence of payment by the first respondent during the 2015 financial year.
The first respondent referred to evidence that the deceased left home between 10.30am and 11.00am. The accident occurred 3 to 3.5 hours later, according to the police. The first respondent submitted that if the deceased performed some activity to assist him, that occurred separately and before the deceased commenced loading his own vehicle with his own wool.
The first respondent submitted the evidence was insufficient for the applicant to discharge the onus of proof that the deceased was a worker employed by the first respondent. The best evidence was to the contrary. Even if the deceased was a worker, the overwhelming evidence supported the first respondent’s submission that, at the time of his death, the deceased was performing an activity entirely in connection with his own business, consistent with his 2015 tax return, and in no way connected with whatever arrangement he had with the first respondent. There should therefore be an award for the first respondent.
With leave, the first respondent made a further submission that the evidence of SC Weller is that Raymond said the wool bales were to be loaded onto the deceased’s ute so he could transport them to Inverell to be sold. This was in response to the suggestion that this activity could have been in some way connected to clearing up the shed in response to the first respondent’s request.
The first respondent also submitted, bearing in mind the onus was on the applicant, it would be assumed there would have been records to indicate where the wool bales were going. Absent that evidence, that was a further basis for an inference to be drawn against the applicant.

SUMMARY

Section 4(1) of the 1998 Act provides:
“‘worker’ means 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). However, it does not include--
(a) a member of the NSW Police Force who is a contributor to the Police Superannuation Fund under the Police Regulation (Superannuation) Act 1906, or
(b) a person whose employment is casual (that is for 1 period only of not more than 5 working days) and who is employed otherwise than for the purposes of the employer's trade or business, or
(c) an officer of a religious or other voluntary association who is employed upon duties for the association outside the officer's ordinary working hours, so far as the employment on those duties is concerned, if the officer's remuneration from the association does not exceed $700 per year, or
(d) except as provided by Schedule 1, a registered participant of a sporting organisation (within the meaning of the Sporting Injuries Insurance Act 1978 ) while--
(i) participating in an authorised activity (within the meaning of that Act) of that organisation, or
(ii) engaged in training or preparing himself or herself with a view to so participating, or
(iii) engaged on any daily or periodic journey or other journey in connection with the registered participant so participating or the registered participant being so engaged,
if, under the contract pursuant to which the registered participant does any of the things referred to above in this paragraph, the registered participant is not entitled to remuneration other than for the doing of those things.”
Schedule 1, cl 2 of the 1998 Act provides:
“(1) Where a contract--
(a) to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor's own name, or under a business or firm name), or
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.
(3) A person excluded from the definition of
‘worker’ in section 4 (1) because of paragraph (d) of that definition is not to be regarded as a worker under this clause.”
Section 4 of the 1987 Act provides:

“4 Definition of ‘injury’

In this Act--
‘injury’ --

(a) means personal injury arising out of or in the course of employment,
(b) includes a
‘disease injury’, which means--
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and

(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”

Worker

The applicant fairly conceded that the evidence in this matter is “murky”, and the matter is not “a lay down misère” for her. Unfortunately, due to the effluxion of time, there is no evidence from Raymond, apart from what he is reported to have told SC Weller, or Edna.
The applicant, the second respondent, and the third respondent were critical of the evidence of Ms Turner. However, it is the applicant who bears the onus.
As the first respondent submitted, the Commission is not bound by the rules of evidence – PIC Act, s 43(2).
Rule 73 of the Rules provides that evidence should be logical and probative; relevant to the facts in issue; evidence based on speculation or unsubstantiated assumptions is unacceptable; and unqualified opinions are unacceptable.
I do not accept that Ms Turner’s evidence should be given minimal weight. She stated that she did not have a role within her father’s business. That does not mean she had no knowledge of what the business entailed, or how her father ran the business. Some of her evidence accords with that of the applicant.
I have had no regard to that part of Ms Turner’s evidence in which she has used words like “I presume”, “pretty sure”, or “firmly believed”. I am also mindful of the fact that it appears there is “bad blood” between Ms Turner and the applicant.
I have given no weight to the evidence of the second and third respondents as to their belief that Kevin was employed by the first respondent. They were aged 12 and 7, respectively, at the date of Kevin’s death. They can have no knowledge of whether there was or had been an employer/employee relationship between Kevin and the first respondent, despite what they may have observed of their father’s activities on the properties.
The applicant submitted that Ms Turner knew nothing about the running of the farm. I do not accept that submission, but assuming the applicant was in a better position to know about this, her evidence is in my view lacking and fails to address some of the evidence given by Ms Turner.
The applicant gave evidence that when she and Kevin lived at Little Valley, they performed work in exchange for living in the cottage. When they were at Little Valley, Kevin was being paid, including some payments of cash in hand. The applicant and Kevin left Little Valley and moved to Inverell in 2010.
The applicant also gave evidence that Kevin was paid cash in hand, or in material items, for crutching work in around April. She does not state whether Kevin did this work in 2015.
It is common ground that the first respondent’s records disclose no payment to Kevin from 2011 to June 2015.
It is accepted that, if Kevin was being paid in cash or kind, there may be no record. There may well have been sound reasons for this arrangement, and it may have suited both Kevin (and the applicant, when she was paid in cash) and Raymond. The downside for the applicant, however, is that there is no documented evidence of any payments to Kevin by the first respondent for several years before Kevin’s death. There are, however, records of other cash payments.
Again, assuming the applicant is in a better position than Ms Turner to know about the arrangements, the applicant has given no evidence as to when Kevin last received any payment, whether in cash or in kind, from the first respondent, or the amount or nature of the payment. She has not given evidence as to whether payments came from Edna’s account.
The applicant has given no evidence as to the regularity of cash payments, whether they were banked, in which case bank records would show cash entries she may be able to identify by statement evidence, or whether the money was simply spent on everyday expenses.
The applicant has given evidence that Kevin was angry about going to Little Valley on the day of his death, and she believed he may have been afraid of his father. She has not given evidence as to whether there was any discussion about whether Kevin was to be paid for any work he performed that day, or the form that such payment may take. She has not given any evidence that after Kevin’s death she asked for, or received, any payment that may have been due to him for that work, or that any such payment was offered by Raymond.
Mr Flett has given evidence that he regularly helped Kevin and Raymond with farm work. Mr Flett himself helped out only for his own enjoyment and was not paid. However, he has given no evidence that he ever witnessed Kevin receiving payment in cash or in kind from Raymond, or of any discussion with Kevin about this, either on the day of Kevin’s death or at any other time.
Ms Turner gave evidence that she was an “advocate” for the first respondent on the day that WorkSafe [sic] conducted its investigation. Her evidence of what the information disclosed is not supported by any documents. However, her evidence and that of the applicant confirms that SafeWork NSW investigated the accident.
As I have noted, there is no evidence from SafeWork NSW, and the absence of such evidence is not explained. The second respondent’s submission that a Jones v Dunkel inference should be drawn against the first respondent because the first respondent did not rely on, among other documents, SafeWork NSW documents, is rejected. The first respondent does not bear the onus.
If the applicant believed evidence from SafeWork NSW would assist her case, it was open to her to request that evidence. Had it not been forthcoming, it was open to her to request leave to serve a Direction for Production on SafeWork NSW in these proceedings. No such request was made.
The applicant submitted it was relevant that the first respondent required people to work on the property after Kevin’s death, and the third respondent submitted that additional shedhands were required for the shearing in August 2015.
This is equally consistent with Kevin having assisted his father with no expectation of payment as it is with Kevin having been paid for such assistance. The evidence simply does not allow me to determine which was the case.
The circumstances in which Kevin came to be engaged in activity, to use a neutral term, in the first respondent’s shearing shed on the day of his death may be explained by him having been requested by Raymond to attend, in the expectation of being paid, or by Raymond requesting that he do so, with no expectation of payment by either party.
In Luxton v Vines,[5] Dixon, Fullagar and Kitto JJ dealt with the drawing of an inference in a civil case:
“In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought, then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise.”
[5] [1952] HCA 19; 85 CLR 352.
In Fuller-Lyons v New South Wales,[6] the High Court said an inference of fact involves “a definite conclusion of which the trier of fact is affirmatively satisfied, as distinct from merely a possible explanation for the known facts.”
[6] [2015] HCA 31.
In Flounders v Millar,[7] Ipp JA said “[t]he choice between conflicting inferences must be more than a matter of conjecture.”
[7] [2007] NSWCA 238.
The evidence simply does not allow me to form a definite conclusion, of which I am “affirmatively satisfied”, on the balance of probabilities, that Kevin was a worker in the employ of the first respondent at the time of his death. The applicant has not met her onus in this regard.

Deemed worker

The only party to make submissions on whether Kevin was a deemed worker was the third respondent.
I am not satisfied there was a contract between Kevin and the first respondent for Kevin to perform work exceeding $10 in value, for the same reasons that I am not satisfied that Kevin was a “worker”.
It is therefore unnecessary that I consider whether the activity was incidental to a trade or business regularly carried on by Kevin.

Out of or in the course of employment

In the event that I am wrong in my determination that Kevin was not a worker, I have also considered whether, if Kevin was a worker, the injury arose out of or in the course of his employment.
In my view, the evidence suggests that it is most likely that, when the accident occurred, Kevin was loading bales of his own wool onto his own vehicle.
I accept that SC Weller’s reference in paragraph 12 of his statement to “Ray” having arrived at the property at about 2.00pm is an error, and in fact it was Kevin who arrived at that time. Given that it was Ray’s account being recorded by SC Weller, the sentence otherwise makes no sense.
Paragraph 18 of SC Weller’s statement clearly says Kevin was loading the wool bales into his vehicle and trailer. (My emphasis.) As the applicant submitted, this is contemporaneous evidence.
The applicant’s evidence is that Kevin left home on the day of his death with the trailer attached to his red Toyota Hi-Lux. SC Weller referred to a steel box trailer attached to a red ute.
The applicant gave evidence that a police officer asked her father to get Kevin’s dog out of the ute, which suggests that the vehicle belonged to Kevin.
The applicant gave further evidence that Ray told her she could not move the car and trailer because WorkCover had to come. This conversation could only have been necessary because the vehicles belonged to Kevin. Had they not done so, the applicant would not have been proposing to move them.
The applicant’s evidence is that Kevin had reversed his trailer up to the platform. (My emphasis.)
The autopsy report recorded that Kevin was loading bales of wool onto a Toyota Hi-Lux ute. This information may have come from the police, although the make of the vehicle was not referred to in SC Weller’s statement.
The applicant has suggested that the wool being loaded may have been a mixture of Kevin’s wool and Ray’s wool, and the bales would have had identifying details. She also stated that SafeWork may have taken pictures of the bales. As I have noted, there is no evidence from SafeWork NSW, and it would have been open to the applicant to obtain such evidence.
The applicant has provided no reason for her belief that the wool may have been a mixture of Kevin’s and Ray’s wool. She can only mean that there may have been a mixture of bales, as Kevin and Ray’s sheep were of different breeds, so the wool itself would not have been mixed.
The applicant has given no evidence of what happened to any bales of wool on the trailer that may have belonged to Ray. She did not say, for example, that they were removed from the trailer before she retrieved it. She has not disputed Ms Turner’s evidence that she took the wool to Glen Innes to be sold and has not said any of that wool belonged to Ray.
In my view, it is most likely that Kevin was initially engaged in cleaning out the shearing shed and later commenced loading his own wool onto his own trailer. If that was the case, the injury he sustained did not arise out of or in the course of his employment with the first respondent. He was engaged in his own activity in furtherance of his own business interests.
A further explanation of Kevin’s activity may be that Raymond asked him to clear the shearing shed of Kevin’s own wool, in preparation for the shearers’ arrival.
The applicant’s evidence is that Raymond requested Kevin to clean up any off-cut pieces, bales of wool, finish the wool pressing, and clean the shed. That is equally consistent with Kevin being asked to remove his own wool as it is with him cleaning the shed of Raymond’s wool.

None of the parties has submitted on this possibility, and I have not relied on it in reaching my conclusion that Kevin’s injury did not arise out of or in the course of employment with the first respondent. It is simply, again, illustrative of the difficulty in determining the circumstances that led to Kevin’s death.
Once again, the evidence does not allow me to form a definite conclusion, of which I am “affirmatively satisfied”, on the balance of probabilities, that Kevin’s death resulted from an injury arising out of or in the course of his employment with the first respondent.
The order is set out in the Certificate of Determination.

[2025] NSWPIC 311

1 July 2025