Mooney v White
[2022] NSWPIC 378
•13 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Mooney v White [2022] NSWPIC 378 |
| APPLICANT: | Brian Henry Mooney |
| RESPONDENT: | Robert J White |
| MEMBER: | Philip Young |
| DATE OF DECISION: | 13 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Matter on remitter from Presidential Unit; applicant employed by respondent to live on respondent’s farm rent free in return for chores; applicant injured late at night when fell through first floor balcony rail; rail broke and had rusty brackets; respondent asserted no evidence concerning applicant’s purpose in being on balcony and applicant’s suggestion overseeing cattle mere speculation as applicant could not recall circumstances; Held – applicant was performing caretaker role and in course of his employment 24/7; Harris v Cudgegong Soaring Pty Limited applied; Hatzimanolis v ANI Corporation Limited, Whittingham v Commissioner of Railways (WA) and Comcare v PVYW considered; applicant in the course of his employment and employment a substantial contributing factor; matter remitted to President for referral to Medical Assessor. |
| DETERMINATIONS MADE: | 1. The applicant in the course of his employment with the respondent on 10 January 2007 suffered injury to his right lower extremity (fractured femur). 2. The applicant’s employment was a substantial contributing factor to his injury. 3. The matter is remitted to the President for referral to a Medical Assessor to determine the extent of the applicant’s whole person impairment, if any, which results from injury to the applicant’s right lower extremity which occurred on 10 January 2007. 4. The President’s delegate is requested to place before the Medical Assessor a copy of the Application to Resolve a Dispute, a copy of the Reply, a copy of the Application to Admit Late Documents and a copy of these Reasons for Decision. |
STATEMENT OF REASONS
BACKGROUND
Brian Henry Mooney (the applicant) is a 74-year-old-man who was employed by Robert J White (the respondent) as a live-in caretaker on the respondent’s farm on the mid-north coast of New South Wales. He brings a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act) alleging that on 10 January 2007 he suffered injury when he fell from a balcony at the homestead on the farm and fractured his right leg.
The present proceedings were originally the subject of a determination by another Member of this Personal Injury Commission (the Commission) on 17 August 2021 (2021 decision). The applicant appealed that decision on certain matters and the matter was subsequently determined by Snell DP on 7 April 2022 (2022 decision). Snell DP determined that certain parts of the 2021 decision should be revoked, and the matter be remitted to a different Commission Member for re-determination.
Many of the background factual matters are set out in the 2022 decision. For present purposes I believe that it is sufficient to say the following:
(a) the applicant lived in a Veterans’ Centre at Forster, NSW. Mr Colin Freeman (a friend) introduced the applicant to the respondent. The respondent lived in Bourke but had a property outside Forster being a farm of about 100 to 150 acres with cattle grazing on it;
(b) the respondent was looking for someone to perform a role on the Forster property. The parties were introduced and entered into an arrangement in that the applicant could live “rent free” on the property and carry out certain duties;
(c) there are differing versions concerning how long the applicant lived and worked at the property. The applicant said it was just a few days before 10 January 2007[1] whereas the respondent said that the applicant lived there for around 10 months[2], and
(d) the applicant’s brother, John Mooney, and two other friends visited the applicant and they had dinner at a local bowling club and returned to the farm at about 10.30 pm. There is no suggestion that the applicant had consumed alcohol. It is said that John Mooney and his two friends went to bed and it is unclear what happened to the applicant after that time. However, it is undisputed that the applicant suffered injury when he fell through a balcony railing adjacent to his upstairs bedroom and was taken to hospital at about 2.25 am with injuries including a fractured left femur, fractured ribs and a fractured eye socket.
[1] Applicant’s statement of 5 May 2010 at Application at page 47 at [50-52].
[2] Respondent’s statement of 22 April 2010 at Application at page 37 at [13].
The issues which were identified in the 2021 proceedings were as follows:
(a) was the applicant at the time of his injury a worker within the meaning of the legislation? and
(b) if so, did the injury occur in compensable circumstances, in particular did it arise out of or in the course of employment and was the employment a substantial contributing factor?
The Member’s decision that the applicant entered into a contract of service with the respondent before 10 January 2007 was upheld on appeal (issue 4 (a) above). The Member’s determination that the applicant did not suffer injury arising out of or in the course of his employment with the respondent on 10 January 2007 and the award for the respondent which followed were both revoked by the Deputy President. These issues were remitted for further consideration and determination.
The applicant had no recollection of why he was on the balcony. The applicant said he was presumably there to check on the cattle. The respondent submitted that this was pure speculation and the applicant submitted that even if he was not checking cattle, he was nonetheless in the course of his employment because he was engaged 24 hours per day, seven days per week as a “caretaker”.
In the result, the learned Deputy President determined that the Member in the 2021 decision “did not deal with the appellant’s argument, that in the overall circumstances, the appellant was employed ‘24/7’, such that he was effectively in the course of his employment whenever he was present at the property”.[3] That was regarded by the Deputy President to be sufficient to uphold the appeal and remit the matter for re-determination.
[3] Snell DP at [51].
ISSUES
A critical initial issue is whether the applicant was engaged as a caretaker 24/7? There is a second issue as to the mechanism of injury in that it was argued for the applicant that if he was injured by contact physically with his employment (the balcony rail giving way) it arises out of the employment? Finally, if the applicant’s injury occurred in circumstances invoking section 9A of the 1987 Act, is the applicant disentitled to receive compensation?
PROCEDURE BEFORE THE COMMISSION
The matter came for conciliation and arbitration hearing by “MS teams” on 22 June 2022.
Mr Hallion of counsel instructed by Mr Stevens, solicitor, appeared for the applicant and the applicant’s presence was excused although he was contactable by telephone. Mr Morgan of counsel appeared for the respondent, instructed by Mr Harris, solicitor. Ms Lawrence attended on behalf of the insurer.The parties participated in an extensive conciliation process but regrettably despite the exercise of my best endeavours to attempt resolution, the matter was not capable of settlement. In those circumstances, the jurisdiction of this Commission to proceed to arbitration hearing was enlivened.
DOCUMENTS BEFORE THE COMMISSION
The following documents were in evidence before the Commission:
(a) Application to Resolve a Dispute (the Application) and attachments lodged 31 May 2021;
(b) Reply and attachments lodged on 2 June 2021 (Reply);
(c) Application to Admit Late Documents and attachments lodged on 17 June 2021 by the respondent (AALD);
(d) Certificate of Determination dated 17 August 2021 in respect of the 2021 proceedings, and
(e) Determination of the Presidential unit dated 7 April 2022 in respect of the 2022 proceedings.
ORAL EVIDENCE
No oral evidence was given.
DISCUSSION AND REASONS
There are a number of statements which are of relevance to the nature of the applicant’s engagement by the respondent:
Colin Freeman dated 7 April 2010
Mr Freeman confirms that the respondent asked him “if I knew anyone who may be interested in free accommodation, in return for a care-taking role on the property”.[4] He confirms that “as far as I was aware it was a simply a verbal arrangement, whereby Brian got free accommodation on the property, in return for doing some work around the place”.[5]
Mr Freeman describes the tending of the cattle, “throwing out some lucerne hay and opening the tap to allow some molasses to run into the barrel for the cattle to get it”.[6][4] Mr Freeman’s statement at Reply at page 25 at [36].
[5] Mr Freeman’s statement at Reply at page 26 at [41].
[6] Mr Freeman’s statement at Reply at page 26 at [44].
Mr Freeman continues:
“46. Apart from that he used to mow and keep tidy the gardens and lawns in the house paddock, also a few minor carpentry jobs in the house and shed. I believe that he is a carpenter or cabinet maker by trade…”[7]
[7] Mr Freeman’s statement at Reply at page 26.
Robert Allport dated 7 April 2010
Mr Allport in terms of the relationship between the applicant and the respondent says as follows:
“43. As far as the relationship between Robert and Brian, I do not know the exact details, my understanding was that he was staying at Robert’s house as a caretaker and in return for the accommodation he did some work around the place, but I do not know the specifics on that and I have no information to verify that arrangement.[8]”
[8] Mr Allport’s statement at Reply at page 33.
Respondent dated 22 April 2010
The respondent says that after a discussion with Mr Freeman:
“I offered the claimant a place to live at Rainbow Flat for free in exchange for some work around the property and small chores. The claimant was skilled as a carpenter and I instructed him that I wanted the kitchen remodeled in exchange for his accommodation. He was also instructed to mow the lawn, keep the house tidy and feed the cattle when needed. Feeding the cattle was meant to be done twice a week and was only necessary in the winter time. The lawn required mowing every two weeks”.
12. The claimant was expected to perform chores for approximately four hours per day, five days per week.[9]”
[9] Respondent’s statement at Application at page 37.
Applicant dated 5 May 2010
The applicant in terms of his conversation with the respondent says that the respondent:
“… advised that he required a ‘live-in’ caretaker/ house sitter on the property. The arrangement was that I would look after the homestead, maintain the yards, feed the stock and attend minor repairs in my own time in lieu of paying rent. Throughout my discussion with him he made it clear that it was also my responsibility to maintain the boundary fences, the fence around the homestead to keep the stock out of the house yard and to ensure that the main front gate was kept closed and locked at all times[10].”
[10] Application page 46.
The applicant also refers to a discussion concerning the kitchen and the applicant advising the respondent that it was beyond repair, the placement of rat baits in the roof cavity, broken glass panels on a solar hot water system on the roof and a number of dead and unwanted trees requiring removal.
The applicant in his statement identifies no less than 55 activities which he performed for the respondent whilst engaged (he says) as a caretaker.[11] Whilst this statement identifies an attachment concerning a list of his expenditure together with invoices and receipts, regrettably there is no attachment in evidence so no clarification of when this lengthy list of activities was performed. That clarification would be important I think in any decision whether the applicant had resided at the farm for a few days (as he suggests) or about 10 months (as the respondent suggests) before his injury.
[11] Applicant’s statement at Application at pages 50-51.
John Thomas Mooney dated 3 October 2009
Mr John Mooney’s statement goes essentially to his observations after the applicant’s injury and in particular his description of the pieces of railing on the ground and the remnants of rusted brackets on the posts of the balcony. In view of this evidence, there can in my view be no doubt that the applicant fell through the balcony railing.
Applicant dated 30 April 2021
This statement is broadly consistent with the applicant’s earlier statement of 5 May 2010 and again does not attach a list of the applicant’s expenses.
Respondent dated 9 June 2021
This statement is broadly consistent with the respondent’s earlier statement and refers to a conversation between the applicant and the respondent in which the respondent suggests that the applicant had just tripped on his way out to have a cigarette and the applicant said words to the effect “you are probably right”.[12]
[12] Respondent’s statement at Application to Admit Late documents at page 1 at [6].
The weight to be attached to this alleged conversation is debatable for several reasons. First, the applicant has separately said on a number of occasions that he does not know why he was on the balcony-he consistently had no recollection. Second, the applicant’s concession is not a direct one: it has a flavour of being a conversational hypothesis in my view in circumstances where the applicant is still asserting that he has no idea why he was on the balcony. Third, for reasons which I have outlined later in this decision, it may well be that the reason for the applicant’s presence on the balcony is irrelevant, in any event.
Further discussion
The applicant submits that the statements of the applicant, confirmed by Mr Allport and
Mr Freeman, are consistent with the applicant having been engaged as a caretaker and the respondent never denies such engagement notwithstanding that in the respondent’s last statement of 2 June 2021 the respondent refers to having seen the applicant’s statements.The respondent’s statement of 2 June 2021 is equally silent in rebuttal in terms of conversations referred to by the applicant other than to say that he “stands by” his earlier statement. A critical issue involves whether the applicant was engaged as a caretaker to the extent that his job was to generally “keep an eye on” the property, its premises and stock, in the event that some problem arose, whatever the time of day and whatever the day of the week. The suggestion that the applicant somehow abandoned his employment were it the case that he went on to the balcony to have a cigarette, cannot be accepted in my view because the respondent’s expectation of him must have been that the applicant would have reacted to any adverse event had it occurred, whatever the time and day involved. This would be so whether he was having a cigarette or eating potato chips (for example) or any other activity which was not directly related to his employment.
In Harris[13] his Honour Neilson J dealt with a matter involving a senior pilot instructor in a gliding club which in the course of being established/built on property involved a number of its members. Mr Harris on the facts was a “caretaker” who occupied a caravan at the developing aerodrome on a full-time permanent basis. The evidence was clear that Mr Harris was so appointed as a caretaker. Notwithstanding some evidence rejected by a witness who did not agree that he requested Mr Harris “live as a caretaker” there was nothing in that witness’s evidence to “rebut the clear and concise evidence of (another witness) and the general thrust of the applicant’s evidence”.
[13] Harris v Cudgegong Soaring Pty Limited [1995] NSWCC 18.
Additionally, a letter was in evidence under hand of the respondent confirming Mr Harris’ appointment as “caretaker/ CFI”.
His Honour Neilson J in Harris added the following:
“However, there is one further consideration which is extremely relevant to this case. A caretaker’s job is to live onsite and keep an eye on things. His mere presence is a deterrent to the theft and to the vandal. His job is to keep his eyes and his ears open – to respond to any unusual activity, any suspicious noise, to act in an emergency.”
Whilst ever he is onsite, he can so act. It appears to me that, absence misconduct or frolic of his own, he would be in the course of his employment whenever he was onsite. Whilst driving a grader to make the dam, he was still able to keep his eyes out for any thief or vandal, able to respond to any unusual occurrence or sudden emergency. Whether his activities were voluntary, expected or absolutely required by his contract he could still act and was still acting as caretaker…I cannot see any distinction between his being on a glider at the time of injury and being struck by the falling limb of a tree when doing something not strictly required by the contract e.g. attending to his own vehicle. To use an industrial analogy, he “clocked on” when he entered the site and “clocked off” when he left it, unless that were on the respondent’s business.
In the present matter there is no evidence to suggest that the applicant was guilty of misconduct, nor on a frolic of his own.
In addition to the observations of Neilson J, there is another way of viewing the present matter and it involves I think asking a rhetorical question: If some sudden emergency arose whilst the applicant was at the farm and he became aware of it because his eyes and ears were open and if that sudden emergency occurred outside of the five days per week, four hours per day nominated by the respondent, would the applicant have been expected to use his best endeavours to attend to that emergency? In my view the answer is clearly in the affirmative. When viewed in this way, the reason for the applicant venturing onto the balcony is of no relevance, nor in my view is the mechanism of the fall. It is sufficient in this jurisdiction if the applicant establishes that his injury arose out of or in the course of his employment and accepting (as I do) that the applicant would be expected to respond to any event potentially adversely affecting the property, it’s premises and livestock whatever the time of day, that brings the applicant’s employment into the umbrella of a caretaker role who is in the course of his employment whilst ever he is present at the property.
The propositions just mentioned do not require consideration of the issues raised by cases such as Hatzimanolis[14] because the applicant in that case sustained injury during an interval occurring within an overall period or episode of work. The distinction is that in those circumstances (interval cases) if an applicant suffers an injury, it is necessary to show that its employer required, encouraged or permitted the applicant to engage in that activity. Earlier in Whittingham[15] it was pointed out by Dixon J that there must be a connection of a sufficient degree between the applicant’s performance of his duties and his injury in cases involving intervals in employment. The emphasis is on cases involving intervals of employment.
[14] Hatzimanolis v ANI Corporation Limited [1992] HCA 21.
[15] Whittingham v Commissioner of Railways (WA) [1931] HCA 49.
The respondent in its submissions in this matter points to a number of arguments. First, it relies upon the facts to suggest that they are insufficient to establish that the applicant must be alert on a 24/7 basis. There is no specific evidence of the applicant being required to provide security services. The lengthy list of tasks identified in the applicant’s statement[16] do not include security or safety, only physical activities.
[16] Applicant’s statement at Application at pages 50-51.
There are many activities which I think the applicant would have been expected to perform regardless of the time of day. One would think, for example, if the piggery on the farm was suddenly alight, the applicant would be expected to call the fire service and could not simply ignore the matter because it fell outside his “ordinary working hours”. If cattle were caught in a barbed wire fence and were in vocal distress such as alerted the applicant, the expectation would no doubt be that the applicant would seek o render assistance, regardless of the time of day.
Second, the respondent points to a number of matters which it says does not establish that the applicant was required for 24 hours per day work. These are that there was no evidence concerning anyone being present on the property before the applicant; there were only occasional visits from the respondent and Mr Freeman; there is no evidence of past issues concerning security or theft; the evidence demonstrates that the farm was a remote property in poor repair; other than ensuring fences were maintained there is no suggestion of work required other than the applicant’s mere presence on the property; ultimately the applicant could not perform the work and the bargain no longer existed.
Many of these submissions concern matters which I believe are not material to the question of the duties expected of the applicant. The material issue is the respondent’s expectations of the applicant during his presence on the property, not simply whether it was necessary for him to be there because of past events. The fact that the property may have been in poor repair does not necessarily negate the obvious advantage for the respondent that someone be living there. The applicant’s uncontradicted evidence outlines the duties that he was expected to perform. As discussed in Harris, caretaking can involve simply keeping an eye on the property. The fact that ultimately the applicant could not perform the work and the bargain no longer existed comes well after the injury.
The applicant gave evidence that cattle would enter the yard of the homestead from time to time and the respondent does not rebut that evidence. Finally, in relation to the evidence concerning the contents of the claim form completed by the applicant in 2009[17] and the applicant’s incident reference to “During a meal-break or authorised recess at work” I regard this to simply demonstrate the applicant’s lack of understanding of the legal position and indeed it is equivocal because the applicant also completes in this form an assertion that he “stopped work” on 10 January 2007.[18]
[17] Reply at page 14.
[18] Reply at page 15.
Pursuant to s 4(a) of the 1987 Act “injury:(a) means personal injury arising out of or in the course of employment…”.
The distinction between cases such as Hatzimanolis and the present matter is explained in PVYW[19] as follows:
“103. The differences between “non-interval cases” and “interval cases” explain the differing approach to the analysis of liability. The concept of the interruption or abandonment of duties that may be material to liability where injury is sustained at work is not apt for the analysis of injury sustained in an interval between periods of actual work. Moreover, engaging in conduct of a private nature during work may have a different significance from engaging in the same conduct during an interval or period of actual work.”
[19] Comcare v PVYW [2013] HCA 41.
Ultimately, in PVYW it was held by the majority that in circumstances where the employee was injured whilst engaged in sexual intercourse at a motel where she was staying overnight to undertake training it was unnecessary to regard the matter as an interval and therefore unnecessary to consider any connection between the activity causing injury and the employment. On this view, accepting as I do that the applicant suffered injury in the course of his employment, whether he was on the balcony to check cattle, to smoke a cigarette, or whatever other reason, his injury arose in an unbroken period of employment (as in Harris) and in the course of his employment.
Section 9A
Neither counsel made submissions concerning section 9A of the 1987 Act but for completeness I think it appropriate to briefly deal with it.
Because I find that on the evidence of Mr John Mooney the mechanism of the applicant’s injury involved a defective or deteriorated balcony rail which significantly contributed to the applicant’s injury and these premises were within the applicant’s work environment, section 9A is satisfied. The causal link between the respondent’s defective property and the applicant’s injury is a direct causal link and the applicant’s employment a substantial contributing factor to his injury having regard to the place of the injury and the duration of the employment as well as the state of the premises. Alternative probabilities of similar injury, the worker’s state of health and hereditary risks are of no relevance.
FINDINGS AND ORDERS
The applicant in the course of his employment with the respondent on 10 January 2007 suffered injury to his right lower extremity (fractured femur).
The applicant’s employment was a substantial contributing factor to his injury.
The matter is remitted to the President for referral to a Medical Assessor to determine the extent of the applicant’s whole person impairment, if any, which results from injury to the applicant’s right lower extremity which occurred on 10 January 2007.
The President’s delegate is requested to place before the Medical Assessor a copy of the Application, a copy of the Reply, a copy of the AALD and copy of these Reasons for Decision.
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