Mooney v White - [2021] NSWPIC 423

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mooney v White [2021] NSWPIC 423
APPLICANT:	Brian Henry Mooney
RESPONDENT:	Robert James White
MEMBER:	Brett Batchelor
DATE OF DECISION:	17 August 2020
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act) for injury claimed to have been suffered arising out of or in the course of the applicant’s employment by the respondent as a full time live-in caretaker on a rural property; the respondent disputed that the arrangement under which the applicant occupied the property amounted to a contract of service between him and the applicant, and that the applicant suffered injury arising out of or in the course of his employment pursuant to section 4 of the 1987 Act; the applicant could not remember what happened to him on the night he fell off the balcony of the residence on the property in which he was residing at the time of injury; over two and a half years later he put forward a reason, based on his usual practice of dealing with cattle on the property, as to why he believed he was on the balcony of the property before he fell; the applicant principally relied on Harris v Cudgegong Soaring Pty Ltd in support of his submission that there was a contract of service between the parties; the respondent cited Dietrich v Dare, Cabra-Vale Ex-Active Servicemen’s Club Ltd v Thompson, and Teen Ranch Pty Ltd v Brown in its submissions opposing such a finding; the applicant relied on the test outlined by Dixon J in Henderson v Commissioner for Railways (WA) and Humphrey Earl Ltd v Speechley in support of its submissions on the section 4 issue; the respondent also cited these cases, submitting that the applicant was not engaged in an activity that was reasonably required, expected or authorised by the employer to carry out his or her duties (emphasis added) when he was injured; Held - finding that there was a contract of service between the parties; finding that the applicant’s reconstruction of the reason he was on the balcony before he fell and suffered injury was speculation, and that he had not discharged the onus of proof on him to show that he suffered injury arising out of or in the course of his employment with the respondent; award for the respondent.
DETERMINATIONS MADE:	1. The applicant entered into a contract of service with the respondent prior to 10 January 2007. 2. The applicant did not suffer injury arising out of or in the course of his employment with the respondent on 10 January 2007. 3. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Brian Henry Mooney (the applicant/Brian Mooney) suffered injury on 10 January 2007 when he fell from a balcony of a house on a property owned by Robert James White (the respondent/Mr White) in Lakes Way, Rainbow Flat near Forster NSW (the property). The applicant claims he was engaged by the respondent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mooney v White

Details

AGLC: Mooney v White [2021] NSWPIC 423
Case: [2021] NSWPIC 423
Decision Date: 17 August 2020

CaseChat Overview and Summary

In the case of Mooney v White, the applicant sought a lump sum compensation for an injury claimed to have occurred during his employment as a full-time live-in caretaker on a rural property owned by the respondent. The dispute centred on whether the arrangement between the parties constituted a contract of service under the Workers Compensation Act 1987, and if the injury arose out of or in the course of the applicant's employment as required by section 4 of the Act. The applicant contended that he fell from a balcony while dealing with cattle, an activity he claimed was part of his duties, while the respondent contested both the nature of their relationship and the circumstances of the injury. The applicant's case relied heavily on the decision in Harris v Cudgegong Soaring Pty Ltd, arguing for a contract of service, whereas the respondent cited various cases, including Dietrich v Dare, to argue against such a finding.

The court was tasked with determining whether a contract of service existed between the applicant and the respondent, and if the applicant's injury arose out of or in the course of his employment. The applicant argued that the nature of his role and the activities he performed constituted a contract of service, as per the principles outlined in Harris. The respondent, however, presented cases like Dietrich to contest the existence of a contract of service, citing that the applicant's activities at the time of the injury were not within the scope of his employment. On the issue of whether the injury arose out of or in the course of employment, the applicant relied on the tests established in Henderson and Humphrey Earl Ltd v Speechley, asserting that his injury was work-related. The respondent, in turn, argued that the injury did not fall within the scope of the applicant's duties, citing the same cases.

The court found that the applicant had not established a contract of service between himself and the respondent. It held that the applicant's account of the events leading up to his fall was speculative and did not meet the burden of proof required to demonstrate that his injury arose out of or in the course of his employment. Consequently, the court dismissed the applicant's claim for compensation.

Orders