Mooney v White

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 as a ‘live-in’ caretaker/house sitter on the property, and that as a result of this arrangement, he was an employee of the respondent at the time of his injury.
The applicant sustained a significant injury to his right lower extremity in the fall and claims lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 45 % whole person impairment assessed by Dr A G Hopcroft, general surgeon (orthopaedics), engaged to carry out an independent medical assessment of the applicant.
The respondent denies that the applicant was employed by him under a contract of service but submits that the arrangement between him and Brian Mooney was an informal one pursuant to which the applicant was expected to perform some work around the property and small chores for approximately four hours per day five days a week in return for permission to reside rent free in the house on the property. The respondent says that the complete informality of the arrangement and the fact that it was not documented was due to the fact that the applicant could not earn money as he was in receipt of a TPI (totally and permanently incapacitated) pension.
In the alternative the respondent asserts that if there was a contract of service between him and Brian Mooney, the injury sustained on 10 January 2007 was not received in the course of employment.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) Was the applicant a ‘worker’ in accordance with the definition of that term in s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)?
(b) Was the injury received by the applicant on 10 January 2007 an injury arising out of or in the course of the applicant’s employment by the respondent (s 4 of the 1987 Act)?

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

The parties attended a conciliation/arbitration conducted via telephone conference on 9 August 2021. Mr J Hallion of counsel appeared for the applicant instructed by Mr M Bechelli. The applicant attended on a separate line. Mr S Harris, solicitor appeared for the respondent. A representative to the respondent’s insurer, EML, also attended.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents (ARD);
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents (AALD) dated 17 June 2021 lodged by the respondent with statement of the respondent, Robert James White, dated 9 June 2021 attached.

The respondent tendered two handwritten pages of ambulance reports in respect of the attendance of ambulance officers at the property late in the evening of 10 January 2007 and in the early hours of 11 January 2007. These two pages were only produced to the Personal Injury Commission (the Commission) by the Ambulance Service of NSW on Friday 6 August 2021 and seen by the parties on that day. The applicant strenuously opposed the admission of the documents, submitting that it was too late for the applicant to respond to the material in the documents, that he would therefore suffer gross prejudice and that the respondent had had ample time to obtain the documents in the past in view of the fact that previous proceedings by the applicant in 2011 in the Workers Compensation Commission in respect of the same injury, had been discontinued. The respondent denied that the applicant would suffer prejudice and that if that was alleged, it would not oppose the applicant giving oral evidence to respond to the documents. The respondent also submitted that it was given leave to issue a direction for production of the documents at the telephone conference held on 28 June 2021, and that the documents should therefore be considered by the Commission. The respondent also submitted that it would suffer prejudice if the two pages of the ambulance reports were not admitted.
The direction for production order was issued by the Commission on 28 June 2021. The reasons given for the order were as follows:
“1. The record may assist in the determination of the issue as to whether the injury sustained by the applicant on or about 10 January 2007 arose out of or in the course of the applicant’s employment with the respondent.
2. The admission of any late documents arising out of the directions process will be considered at the conciliation conference/arbitration hearing to be held on 9 August 2021.”
The tender of the two pages of ambulance reports was rejected. The submission that because leave was given to the respondent at the telephone conference to issue a direction for production order for the documents indicated that they should be admitted in evidence in the proceedings was rejected. It is quite clear from the order made 28 June 2021 that admission of the documents would be considered at the conciliation/arbitration hearing. Whilst it was unfortunate that the documents were only produced to the Commission and the parties on the Friday before the Monday hearing, it was unrealistic to expect the applicant to have responded to the documents at such short notice. The applicant was attending the conciliation/arbitration on a separate telephone line. The respondent could have sought the documents at an earlier date. Any probative value of the documents was outweighed by the prejudice that the applicant would suffer if the documents were allowed into evidence.

Oral Evidence

There was no application to adduce oral evidence or to cross-examine the applicant.

The applicant’s case

The applicant’s case appears from his two signed statements in evidence, dated 5 May 2010[1] and 30 April 2021[2].
[1] ARD p 47 (noting that the page numbers are to those in the Commission’s electronic records of the documents).
[2] ARD p 64.
In the first statement Brian Mooney says that through a mutual friend he attended the property and spoke to the respondent who advised that he required a live-in caretaker /house sitter on the property and that the arrangement was that he would look after the homestead, maintain the yards, feed the stock and attend to minor repairs in his own time in lieu of paying rent. The applicant says that throughout his discussion with the respondent, it was made clear that it was his (Brian Mooney’s) responsibility to maintain the boundary 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. The respondent also asked the applicant if he could repair the existing kitchen as he was aware of his previous experience in the manufacture of kitchens. There was also discussion as to the control of rats in the kitchen area, repair of a glass panel on a solar hot water system on the roof and the removal of a number of dead and unwanted trees in the house yard. The respondent suggested that the applicant occupy the bedroom at the far end of the house as he and his family would be there from time to time. Brian Mooney says that he made it clear to Mr White that he was in receipt of a TPI service pension from the Department of Veterans Affairs and that he was unable to receive money for his services. Mr White suggested that the applicant could live in the house free of charge and that he would cover the power and phone bills and provide some lamb from time to time.
The applicant then goes on to describe the property, consisting of 100 acres of rural land located some 13 kilometres from Forster and some considerable distance from the main road. He describes the two storey brick and tile dwelling in some detail, which he says had been sadly neglected for some considerable period of time, and that it appeared that the previous owner was a collector and hoarder of rubbish. Brian Mooney says that he had been advised by a long-term resident of an adjoining property that the property used to be a very large commercial piggery and more recently a horse stud.
Brian Mooney says that he moved into the premises in early January 2007 and had only been living and working at the property for a few days when on 10 January 2007 his brother, John Mooney and two of his friends, Geoff Beaulock and Bruce Boardman (now deceased) all from the Newcastle area visited him at the property. Later that afternoon they attended the Hallidays Point Bowling club for a meal and returned home at about 10.30 pm. The all went upstairs onto the balcony outside the bedrooms to take in the view of nearby Forster. They talked for a while and a short time later the applicant’s brother and his friends retired for the evening and went into separate bedrooms. Brian Mooney does not recall going into his room at all that night and says that in fact his next memory is waking up in the Manning Base Hospital on 13 January 2007 with his left leg in traction and wearing a neck brace. He was advised by Hospital staff that he was admitted to the Emergency Department about 2.25 am on 11 January 2007 and was unable to provide any information.
The applicant then goes on to give details of his injuries and subsequent treatment, and also details of two further incidents in which he was involved in 5 March 2007 and 7 January 2008 which caused further problems with his fractured left femur, originally treated at the Manning Base Hospital following his admission there on 11 January 2007. These incidents are not relevant to the issues which must be determined in the current proceedings.
In his statement dated 30 April 2021, which is headed “STATEMENT 2”, Brian Mooney recapitulates the circumstances of his coming to live on the property, his description of the property and the dwelling thereon, and the subsequent incident of 7 January 2008 which also occurred on the property. He then gives, in 55 numbered paragraphs[3], details of the work he says he carried out, organised or supervised on the property. These include, relevantly, feeding the stock every three to four days and repairing the fence around the homestead on numerous occasions.
[3] ARD pp 66-69.
The applicant says that the cattle on the property are a breed called ‘Bradford’, a cross between ‘Brahman’ and ‘Hereford’. This breed is very big and capable of jumping a four foot fence from a standing start. He says the fences need to be “bullet proof” to keep them in or out, and that late in the afternoon the cattle regularly congregated around the house either at the front or around the back near the driveway to the house and yard and were constantly jumping over or breaking through the yard fence. The fence had been repaired numerous times in the past and appeared to be inappropriate for the size of the cattle. Brian Mooney says that throughout the time he was on the property the cattle had breached the fences on pretty much a daily basis, particularly the bigger steers followed by the rest, and destroyed many plants, the vegetable garden, shrubs and trees.
The applicant then goes on to say:
“In the days prior to my fall from the balcony I had been out on the balcony
numerous times throughout the night after hearing cattle, from my bedroom,
break through the fence and into the yard. I would stand in the front corner of
the balcony holding onto the corner post and call my dog to round up the
cattle and chase them out of the yard. If this failed I walked down the stairs,
opened the back gate and move the cattle out of the yard and repair the fence
in the middle of the night.
I have given this entire issue considerable thought over the last 2 ½years.I
strongly feel that this is the reason I was on the balcony at that time.
Unfortunately the only witnesses to this scenario who could say what
happened with any degree of certainty are the cattle and the dog.
Apart from the details below this statement was last saved on my computer at
9.51am 9 November 2009.

My bedroom led out to the balcony from which I fell.
On the night of the accident, I would have retired at the same time as the
others as I would have no reason to remain alone on the balcony.
Occasionally before the accident I used to go out onto the balcony to smoke a
cigarette however it is unlikely that I did so on this occasion as it was late, and
we had already spent some time on the balcony. I would have gone straight to
bed after we retired from the balcony. The only reason that I can think of
that would have caused me to go out onto the balcony on the night was
disturbance of cattle as I have referred to above.”[4]

[4] ARD pp 70-71.

The applicant’s statement that “Apart from the details below this statement was last saved on my computer at 9.51 am on 9 November 2009” accords with the unsigned statement which follows, and appears to form part of, the report of Dr A G Hopcroft dated 2 November 2020[5]. The only items missing from that unsigned statement are the numbered paragraphs [54]-[55] referred to in [18] above. In that document, and in the signed statement dated 30 April 2021, reference is made on two occasions to “a previous statement” which is not in evidence.
[5] ARD pp 7-20.
The applicant’s older brother, John Thomas Mooney, has given a statement dated 3 October 2009[6]. He says that in January 2007 he decided to visit his brother Brian and travelled up to Lake Way, Rainbow Flat with two friends Geoff Beaulock and Bruce Boardman (now deceased). He remembers going to the house on 10 January 2007 “where Brian was the caretaker.” John Mooney remembers his brother taking them around the property, and that later that afternoon they all decided to go to the Hallidays Point Bowling Club for a meal. He says that Brian “does not drink and to my knowledge hasn’t been a drinker for about the last 20 years.” John Mooney, Geoff and Bruce had a few drinks at the Bowling Club and Brian drove them home. It was about 10.00 pm when they got home.
[6] ARD p 56.
John Mooney describes the “substantial house” with reference to photographs attached to his statement and which rooms were occupied by members of the party that night. He says that they sat around and talked for a short while then all went to bed. The next thing he remembers is Geoff Beaulock coming into the room where he was sleeping, waking him up and saying, “Brian’s gone”. With Geoff and Bruce he went to Brian’s room. He remembers seeing that the balcony door which led from the bedroom to the balcony was open.
John Mooney walked out onto the balcony and saw that the top railing was not there. He looked over the balcony and could see his brother lying on his back on the ground. He immediately went down to where his brother was lying. He saw that he had obvious injuries to his head. He said to his brother, “what happened?” John Mooney says that Brian was moaning and didn’t respond to him. He was left in no doubt that Brian had fallen off the top floor of the verandah. He says that it was very dark at the time and he does not think that there were any outside lights on. Geoff rang the ambulance and Brian was taken to Manning Base Hospital.
John Mooney re-examined the accident scene in daylight the following morning with his companions. He saw pieces of railing on the ground depicted in photographs attached to his statement. He was in no doubt that the piece of railing he saw on the ground had come from the upper balcony as it was consistent in colour and appearance with the remainder of the railing on the upper balcony.

The respondent’s case

The respondent’s case appears from two statements of the respondent dated 22 April 2010[7] and 9 June 2021[8]. In the first statement Mr White refers to his purchase of the property about five years prior to the date of the statement, saying that it was involved in his agricultural business. It was purchased as an investment where he intended to retire.
[7] Reply p 19.
[8] AALD 17 June 2021.
The respondent refers his meeting with the applicant when he was living in a bunker at the Vietnam Veterans shed in Forster after separation from his wife. Mr White offered the applicant a place to live at the property for free in exchange for some work around the property and small chores. Mr White knew that the applicant was skilled as a carpenter and he wanted the kitchen remodelled in exchange for the accommodation provided. The applicant 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. Brian Mooney was expected to perform chores for approximately four hours per day for five days per week.

The respondent says that the applicant lived at the property for about 10 months prior to sustaining his injury on 10 January 2007, and that the arrangement was completely informal and not documented. This was due to the fact that the applicant could not earn money as he was in receipt of a TPI pension.
The respondent says that he usually called the applicant every couple of weeks to check on him and the property. On two or three occasions when he travelled to the property unannounced to check on the applicant and the property he found that he was not performing the tasks expected of him. Mr White became aware that the applicant was paying other people to perform the chores that he was expected to do. Mr White says that he “was not living up to the expectations of our informal agreement.”
The respondent says that the chores that he expected the applicant to perform would have been done by lunchtime. While the applicant had no set routine, Mr White could not think of any task that he would have been performing in the evening and that he therefore would not have been working at around 10.00 pm on 10 January 2007.
The respondent says that the applicant “has stated in the past that he does not recall the incident from 10 January 2007.” Mr White says that approximately one year after the injury he was discussing the incident with the applicant and said, “I bet you just tripped on your way out to have a cigarette”, to which the applicant replied something to the effect “You’re probably right.”
About one month after the incident Mr White offered the applicant the option to make a public liability claim, an offer that was declined as the applicant said that his TPI pension would cover his costs.
The arrangement between the applicant and the respondent came to an end after September 2008 when Mr White told the applicant that he may need to start charging him rent as he was incapable of performing any chores around the property and could no longer abide by the terms of the informal agreement.
In his statement dated 9 June 2021 the respondent refers to his earlier statement dated 22 April 2010 and the applicant’s statement dated 30 April 2021. He said at [3]-[8] that:
(a)    he stood by the contents of his previous statement;
(b)    in the period following the applicant’s injury on 10 January 2007 he spoke with him on numerous occasions and on some of those occasions spoke about the circumstances of the incident;
(c)    in all of those conversations prior to the conversation about one year after the incident, the applicant made it quite clear that he had no recollection of the incident and had no idea why he was on the verandah immediately prior to the incident;
(d)    he has a very clear recollection of the conversation referred to in [31] above in respect of tripping on the way out to have a cigarette;
(e)    his recollection is clear as it came as a considerable surprise when he learned some years later that the applicant had then suggested that he had proceeded onto the verandah in order to check on some cattle, and
(f)    the applicant was known to be a heavy smoker and that was the reason that the suggestion was made to him that he was on the verandah smoking a cigarette.

Colin Gordon Freeman has supplied a statement dated 7 April 2010[9] in which he avers that he had known Brian Mooney for around five to six years through their mutual association with the local Vietnam Veterans Association and had known Mr White as a personal friend for around 38 to 40 years. He was not a witness to the applicant’s injury on 10 January 2007 but visited him in hospital in Taree. On the second time he made such a visit and asked him what happened, Brian Mooney replied “I don’t know.”
[9] Reply p 23.

SUBMISSIONS

The submissions of the parties are recorded, a transcript of which can be obtained on request. I will not repeat them in full. In summary they are as follows.

Applicant

The applicant submits that he had an agreement with the respondent to act as a live in caretaker of the property, rent free, in exchange for carrying out the duties and tasks outlined in his statement. Although it was regarded by Mr White as an informal arrangement not in writing or intended to create a legal relationship between the parties, this was not the case. It was an agreement pursuant to which the applicant was to act as an onsite caretaker 24 hours a day in exchange for living rent free in the dwelling on the property. This constituted a contract for service between the applicant and the respondent.
The applicant points to the extensive range of duties he was required to carry out as particularised in his evidence which are not disputed by Mr White. The applicant submits that the fact that the respondent had insurance on the property in the form of a public liability policy is indicative of the fact that there was a requirement in such insurance that the property to be occupied. The applicant further points to the business nature of the property, and the fact of there being a workers compensation insurance policy which has responded to the applicant’s claim, in support of the submission that he was a worker employed by the respondent under a contract of service.
The applicant submits that the evidence of Mr White supports his submission that he was a worker employed under a contract of service.
The applicant relies on the decision of Neilson J in the Compensation Court of NSW in the matter of Harris v Cudgegong Soaring Pty Ltd[10] which involved an applicant who, in return for acting as the caretaker of the respondent’s airfield, was permitted to live permanently on site. While testing a glider, the applicant suffered partial paraplegia. His Honour found there was an intention to enter legal relations and that consideration moved from both parties.
[10] (19950 11 NSWCCR 678 (Harris).
The applicant submits that his presence on the property was critical to the duties he had to perform for the respondent. This was not a situation similar to the fact situation in Hatzimanolis v ANI Corporation Ltd[11] of a break in an overall period of employment; he was in the course of his employment 24 hours a day. There was no ‘clock on’ or ‘clock off’ time. Therefore when he went on to the verandah to check the cattle in accordance with what he asserts was his usual practice, he was in the course of his employment.
[11] (1992) 173 CLR 473 (Hatzimanolis).
Brian Mooney submits that even if he was smoking a cigarette on the balcony as is the case suggested by the respondent, he was still in the course of his employment. He had not thereby abandoned his employment. Smoking a cigarette on the balcony of the residence on the property was an activity incidental to his employment as a full time caretaker, and it could therefore be said that this activity arose out of his employment. The cause of the applicant’s injury was the defective state of the railing which broke and allowed him to fall to the ground.
The applicant relies on cases such as Henderson v Commissioner for Railways (WA)[12] and Humphrey Earl Ltd v Speechley[13] in which Dixon J put forward the test that, when injuries do not arise during actual work, whether they arose during the course of employment should be determined by whether, when an injured worker was doing something was “reasonably required, expected or authorised to do in order to carry out his actual duties.” In other words, even if he was not in the course of his employment when he fell, that is, he was not on the balcony to inspect the movement of cattle, nevertheless by having a cigarette on the balcony was an activity he was reasonably required, expected or authorised to do in order to carry out his actual duties as a caretaker on the property. The applicant also relies on the finding of the High Court in Roncevic v Repatriation Commissioner[14] which applied the test Humphrey Earl to uphold the claim of a soldier who was injured whilst inebriated and fell when he returned to his room to change out of his uniform after attending a mess function which he was required or expected to attend. In that case, Kirby J referred to cultural or social norms with reference to the consumption of alcohol. The same could apply to smoking, having regard to the fact that the applicant was a heavy smoker.
[12] (1937) 58 CLR 281 (Henderson).
[13] (1951) 84 CLR 126 (Speechley).
[14] (2005) 222CLR 115 (Roncevic).
The applicant submits that there is no evidence to countermand his evidence that it was part of his duties as a caretaker to inspect the cattle on the property and keep them away from the house. The applicant acknowledges that he has no recollection of what actually happened on the balcony on the evening of 10 January 2007 but relies on what he says was his usual practice. This usual practice is not addressed by any evidence from Mr White, and therefore Brian Mooney has established a “prima facie” case that he was injured in the course of his employment. In accordance with Watts v Rake[15] the evidential onus has shifted to the respondent to address this issue. The applicant also submits that a Jones v Dunkell inference can be drawn from the failure of the applicant to address his evidence that he was engaged as a caretaker on the property 24 hours a day and as to his usual practice in inspecting the cattle. Further, the applicant was required to use the balcony to inspect the cattle.
[15] (1960) 108 CLR 158.
In respect of s 9A of the 1987 Act, the applicant submits that his employment with the respondent was a substantial contributing factor to his injury. He was on the balcony to inspect the cattle and fell because of the state of the railing. This is clear from the evidence of John Mooney. Brian Mooney was placed in a state of danger in carrying out his duties because of the condition of the premises.
The applicant submits that his evidence should be accepted as reliable and his credit is not called into question. He is a person who has served his country as a soldier and also was a police officer for a period of 10 years, a fact which appears from the history recorded by
[16] ARD p 8.
Dr Hopcroft in his report dated 2 November 2020[16].

Respondent

The respondent submits that, in order for the applicant to succeed on the issue of ‘worker’ he must establish that there was a contract between them, referring to the mutuality of obligation highlighted in Dietrich v Dare[17] and what Roche DP said in Cabra-Vale Ex-Active Servicemen’s Club Ltd v Thompson[18]. The respondent submits that the arrangement between the applicant and himself was informal, vague and fell short of a contract, more consistent with a voluntary arrangement similar to that discussed by the Court of Appeal in Teen Ranch Pty Ltd v Brown[19] in which no contract of service was found between the parties.
[17] (1980) 30 ALR 407 (Dietrich).
[18] [2013] NSWWCCPD 49 (Thompson) at [31]-[39].
[19] (1995) 11 NSWCCR 197 (Teen Ranch).
The respondent submits that the acknowledgement by Brian Mooney that he did not want to earn money as he was in receipt of a TPI pension is fatal to a finding that there was a contract between the parties. The whole arrangement as relayed by the applicant, consistent with the respondent’s evidence, was that it was a very informal arrangement.
The respondent submits that if, contrary to his primary submission that the applicant was not a worker employed by him, there should be a finding that what happened to the applicant on the evening of 10 January 2007 was not in the course of the applicant’s employment. The suggestion that the applicant was in the course of his employment 24 hours a day, seven days a week is not supported by the evidence. The respondent notes the applicant’s evidence, consistent with that of his brother, of what he did on 10 January 2007 with his brother and the two friends, visiting a local club, returning home, having a chat outside and then all going to bed. There is no suggestion that he performed any so called work on that day.
The real issue, according to the respondent, is the purpose for which Brian Mooney was present on the balcony before he fell. There is no evidence to refute the applicant’s evidence that he fell from the balcony. It does not matter whether he fell through the balustrade or not; he was found on the ground by his brother and others. The applicant alleges, with the benefit of hindsight, that he believes was on the balcony to perform some task involving the cattle. If that evidence is accepted, then the respondent concedes that the applicant must succeed. The respondent’s submission that such evidence should not be accepted is based on what is contained in the Worker’s Injury Claim Form signed by the applicant on 8 December 2019[20], and what the applicant says in his statements about how he came to be on the ground after the fall. Section 2 of the Claim Form (“INCIDENT & WORKER’S INJURY DETAILS”) contains a question “What happened and how were you injured?” The answer supplied is “fall from balcony”. The answer given to the next question in the form “What task/s were you doing when you were injured?” is “n/a” (that is, not applicable). The respondent notes that the evidence of John Mooney is silent as to the reason for the applicant being on the balcony, understandably so as there is no basis on which he could have known.
[20] Reply p 16 (the Claim Form).
Looking at the applicant’s first statement dated 5 May 2010, the penultimate paragraph on the second page of that statement sets out what the applicant says happened. The respondent notes that it is quite clear from this evidence that the applicant has no recollection of the incident or events leading up to it and in particular has no recollection as to why he was present on the balcony.
Looking at the applicant’s second statement dated 30 April 2021, the respondent notes that it contains a repetition of the contents of the earlier statement, without actually referring to the incident which is covered in the first statement. It is in this second statement where the added assertion, which the respondent submits is no more than speculation, appears. The applicant says that having considered this over the past two and a half years, the reason he went onto the balcony was to do with the cattle.
The respondent submits that this evidence should not be accepted, based on the contents of the claim form and the applicant’s first statement dated 5 May 2010. The respondent draws attention to s 354(1) of the 1998 Act, which provides that proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits, and rule 73 of the Personal Injury Commission Rules 2021 (the Rules) which provide that the appropriate decision-maker when informing itself or themselves on any matter in the proceedings, must have regard to the following principles:
(a)    evidence should be logical and probative;
(b)    evidence should be relevant to the facts in issue and the issues in dispute;
(c)    evidence based on speculation or unsubstantiated assumptions is unacceptable, and
(d)    unqualified opinions are inacceptable.
The respondent draws attention to his evidence in his first statement, referred to above at [31] and in his second statement referred to above at [34]. He has a clear recollection of the conversation with the applicant about his reason for going onto the balcony, evidence which is not refuted by the applicant. The respondent submits that there is no evidence that the applicant went onto the balcony for any reason connected with his duties. Smoking a cigarette was not an activity in the course of the applicant’s employment with the respondent.
In respect of the Speechley case relied upon by the applicant, the respondent submits that was an unusual set of facts in which the worker was eventually unsuccessful before the High Court and is only authority for the test that the activity in which a worker was involved at a time when he or she was injured was an activity that was reasonably required, expected or authorised by the employer to carry out his or her duties (emphasis added).
The respondent submits that Roncevic does not assist the applicant in this case as in that case, the Court found a relevant connection between the applicant worker’s employment and the injury he suffered. The respondent also submits that, on the facts of Harris, there was no finding that the applicant worker in that case was engaged as a caretaker by the respondent employer 24 hours a day, and that the injury he sustained whilst flying a glider plane was clearly within the course of his employment, as that was one of the duties required of him.
The respondent submits therefore that there should be an award for the respondent.

Applicant in response

The applicant submits that the entry in the Worker’s Injury Claim Form made by the applicant and relied upon by the respondent, “n/a” (not applicable), is of no significance and simply indicative of the fact that he is a lay person and not alert to the issues in his case. The applicant goes further and submits that the very fact that he submits a workers compensation injury claim form is indicative of the fact that he regarded himself as a worker employed by the respondent. The respondent counters this submission that the form, whilst dated 8 December 2009 and signed by the applicant, was submitted by his solicitor with a letter of claim of the same date[21].
[21] Reply p 4.
The applicant also submits that since the Speechley case, in which Dixon J following on what he said earlier in Henderson in respect of the test for determining whether an injury had occurred in the course of employment, courts had widened the concept of what a worker was reasonably required, expected or authorised to do in order to carry out his actual duties. In this regard for example in some circumstances the consumption of alcohol after work or at the end of a working week, or in a work party situation, did not necessarily mean that a worker injured in such circumstances was not in the course of his employment.

FINDINGS AND REASONS

Contract of service

The arrangement between the applicant and the respondent in respect of the applicant’s residence in the dwelling on the property was informal, according to the respondent, and not in writing. The respondent resists a finding that it constitutes a contract on the basis that there was a lack of mutuality of obligation between him and Brian Mooney, citing cases such as Dietrich and Thompson in support of this submission. In Dietrich it was held on the facts that there was no mutuality of obligation, which was also the finding in Thompson. In the latter case the putative worker was found to have been appointed to a position by the Cabra-Vale Ex-Active Servicemen’s Club Ltd, but there was no evidence that there was an obligation on him to perform the activities that he was appointed to. The payment made to
Mr Thompson was in the nature of an honorarium and thus was voluntary or a gift, and therefore there was no contract of employment.
In this case having regard to the evidence of the applicant and the respondent there is evidence of mutuality of obligation. Mr White offered Brian Mooney a place to live at the property in exchange for some work and chores which he expected the applicant to carry out. These included mowing the lawn, keeping the house tidy and feeding the cattle twice a week but only necessary in winter time. Mr White also instructed the applicant that he wanted the kitchen remodelled, although it appears that this did not eventuate. Mr White called on the applicant every couple of weeks to check on him and the property. He says he often found that the applicant was not performing the tasks expected of him, and apparently paying other people to perform the tasks he should be doing. Brian Mooney responded to this criticism, but the respondent maintained his opinion that the applicant was not keeping up his side of the agreement. This led eventually to the arrangement coming to an end in September 2008, when Mr White indicated that he may need to start charging the applicant rent, although it is acknowledged that this was well after the applicant was injured. Nevertheless, Mr White appears to have let the arrangement, originally entered into according to him about 10 months before 10 January 2007, continue until that time. He says that at about September 2008 he became aware that, because of his injury the applicant “was incapable of performing any chores around the property and could no longer abide by the terms of our informal agreement.”

For his part, although the applicant did not receive any monetary consideration for the performance of the tasks allotted to him by the respondent, he did receive rent free accommodation. There is a difference in the evidence between the parties as to who was responsible for paying power and phone bills, and Brian Mooney in numbered paragraphs [1]-[55] of his statement dated 5 May 2010 summarises a very large amount of work which he says that he carried out, organised or supervised. This work could not have been carried out if his evidence given earlier in that statement, that he only moved into the premises on the property in early January 2007 and that he had been only living and working at the property for a few days until 10 January 2007, is accepted.
Notwithstanding these differences in the evidence between the applicant and the respondent, there was a mutuality of obligation between them. There was an offer by the respondent to the applicant of accommodation without monetary payment of rent, accepted by the applicant in return for his agreement to live on the property and carry out the tasks allotted to him. The requirement was to live full time on the property and carry out those allotted tasks. The property was part of an agricultural business conducted by Mr White, and there were cattle on the property. I infer that it was to his advantage to have someone residing permanently on the property to keep an eye on it, look after the stock and maintain the grounds and fences thereon.
In this circumstance I find that there was a contract of service between the applicant and the respondent, the terms of which are outlined above.

Injury arising out of or in the course of employment

The applicant does not know why he was on the balcony of the house on the property immediately before his fall. He admits this and in a statement made on 5 May 2010, three years and three months after the fall, gives evidence as to why he believes he was on the balcony just before he fell. In that statement he describes the cattle on the property as a breed called ‘Bradford’, a cross between Brahman and Hereford, big and capable of jumping a four foot fence. He says that late in the afternoon the cattle regularly congregated around the house or around the back near the driveway and were constantly jumping over or breaking through the yard fence.
Whilst the applicant does not demonstrate in his evidence any expert knowledge of cattle or of the characteristics of the Bradford cattle he describes, the respondent does not respond to this evidence. There is reference at [16] in Mr White’s statement dated 22 April 2010 to his cattle often knocking down an electric fence which the applicant erected on the property, apparently without Mr White’s permission, in order to keep three horses on the property, again without having sought permission to do this. I can therefore accept that cattle on the property were capable of, and did on occasions, knock down fences.
One aspect of the applicant’s evidence that was raised by me during the course of submissions was his statement that he had only been living and working on the property for a few days when he was visited by his brother John and two of his friends on 10 January 2007. The respondent says that the applicant lived on the property for about 10 months prior to sustaining his injury on 10 January 2007. In submissions the applicant said that this discrepancy was of no consequence. It is hard to know who is right, although without making a finding thereon, it may be that Mr White’s evidence on this point is more reliable. However if it is accepted that Brian Mooney had only been living and working on the property for a few days before 10 January 2007, he would only have been able to perform a very small amount of the work that he says he either performed or arranged to be carried out on the property, and more importantly, could not have witnessed very many occasions when the cattle breached the fences. He does say that this occurred “pretty much on a daily basis” and that in the days prior to his fall he had been out on the balcony numerous times throughout the night after hearing the cattle from his bedroom break through the fence and into the yard. He can only have done this, at best, for the few days he was at the property prior to his fall.
I do not make this observation to suggest that Brian Mooney is being untruthful in his evidence. I am just concerned about the reliability of his evidence, and the fact that his theory as to why he was on the balcony just before his fall on 10 January 2007 emerged so long after the event. It appears that it was first mentioned by him on 9 November 2009. Although the respondent in submissions did not rely on the unsigned statement which is attached to and appears to form part of the report of Dr Hopcroft dated 2 November 2020, as noted in [21] above, the applicant says in his statement dated 30 April 2021 that what he says about why he believes he was on the balcony on 10 January 2007 before his fall “was last saved on my computer at 9.51 am 9 November 2009.” That is the date which accords with the date shown at the end of the unsigned statement forming part of Dr Hopcroft’s report. As noted again in [21] above, the only difference between the applicant’s signed statement dated 5 May 2010 and the unsigned document forming part of Dr Hopcroft’s report is the omission of numbered paragraphs [54]-[55]. It can therefore be accepted that the applicant first theorised about why he was on the balcony prior to his fall on or about 9 November 2009. That is two years and ten months after his injury.
The Claim Form signed by Brian Mooney is dated 8 December 2009. It was forwarded to the respondent by registered mail to the respondent on that day. The respondent says that it was prepared by the applicant’s solicitor, a matter not conceded by the applicant. There is no evidence to which I have been taken that shows that this is the case. Nevertheless the applicant’s solicitor cannot have been unaware of its contents. The respondent places great emphasis on the “n/a” reply in the Claim Form to the question as to the tasks that the applicant was doing when he was injured. It is difficult to understand why such an answer was given by the applicant when, in early November 2009, he theorised as to why he was on the balcony immediately prior to his fall. He could have described why he believed he was there. It is consistent in my view with the conversation that Mr White had with the applicant to the effect that Mr White was “probably right” when he suggested to Brian Mooney that he “just tripped on your way out to have a cigarette.” The applicant does not deny this conversation and I accept Mr White’s evidence that it occurred. It is also consistent with the respondent’s submission that the applicant’s theory as to why he was on the balcony just before he fell is no more than speculation.

The applicant submits that, even if he was not on the balcony to check the cattle just before he fell, nevertheless he was in the course of his employment when he went out onto the balcony to have a cigarette. He submits that, having regard to the fact that he was a caretaker on the property, engaged 24 hours a day, seven days a week to act as a caretaker, the activity of going out onto the balcony to have a cigarette was something that he was reasonably required, expected or authorised to do in order to carry out his actual duties. There is simply no evidence of this. The respondent in his statement dated 22 April 2010 says that the chores expected of the applicant could have been performed by him by lunchtime each day, acknowledging that the applicant had no set routine. He could not think of any task that the applicant would have been performing in the evening, and that therefore the applicant would not have been working at around 10.00 pm on 10 January 2007. I infer from this that Mr White was not concerned about, or did not adress his mind to, the possibility of cattle jumping the fence around the dwelling on the property. At the very least, he did not specify in his expectations of what the applicant had to do in order to satisfy his obligations under the contract of service included keeping the cattle out of the area around the dwelling on the property.
The applicant says that the concept of what occurs in the course of a worker’s employment has expanded since the decisions in Henderson and Speechley. This submission is referred to in [59] above. However each case must depend on its own facts, and in this case the submission that the applicant went out onto the balcony of the property on the evening of 10 January 2007 to have a cigarette, in the circumstance that he did not go out for a purpose to do with cattle on the property, in my view cannot be accepted as an activity that was reasonably required, expected or authorised to do by the respondent in order for the applicant to carry out his actual duties.
In reality, the applicant does not know why he went out onto the balcony in the period immediately before he fell therefrom. He speculates as to the reason he was there. Brian Mooney was a heavy smoker and I suspect that the reason he was there is that put forward by the respondent, that is that he went out to have a cigarette. I have found that the conversation between Mr White and Brian Mooney, in which the suggestion was made that the reason the applicant was on the balcony was that he went out to have a cigarette, took place. I am not required to make a finding as to why Brian Mooney was on the balcony at the time, but I do not accept that the applicant has discharged the onus of proof on him to show that it was to do with cattle on the property.
In Onassis and Calogeropoulos v Vergottis[22] Lord Pearce said of documentary evidence:
“It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance.”
[22] [1968] 2 Lloyd’s Rep 403 at 431..

The same observation can be made of the theory first put forward by the applicant in November 2009, as to the reason he was on the balcony immediately before he fell on 10 January 2007. Whilst contemporary documents are of the utmost importance, similarly what the applicant recalled, or was not able to recall, contemporaneously after the fall on 10 January 2007 as to why he was on the balcony, is of the utmost importance. Brian Mooney said to Colin Freeman, when he visited him in Taree (which is where Manning Base Hospital is situated) with Robert Allport, that he did not know what happened about the circumstances of the fall. The applicant freely acknowledges this. What he thereafter postulates as the reason for him being on the balcony is no more than speculation.
The decision-maker of the Commission must, pursuant to rule 73 of the Rules, have regard to evidence that is logical and probative and not accept evidence based on speculation or unsubstantiated assumptions. In my view the applicant’s evidence as to why he was on the balcony on 10 January 2007 immediately before he fell is speculation. It is also based on an unsubstantiated assumption that there were cattle attempting to enter the area around the dwelling on the property at around 10.00 pm on 10 January 2007.
I accept the respondent’s submission that the injury sustained by the applicant when he fell from the balcony some time after 10.00 pm on 10 January 2007 was not an injury arising out of or in the course of his employment with the respondent.
The respondent’s insurer in it its s 78 notice dated 10 March 2021[23] referred to s 9A of the 1987 Act, alleging that the applicant’s employment was not a substantial contributing factor to the injury suffered on 10 January 2007. The applicant made brief submissions to the Commission on this issue. It was not referred to in submissions at all by the respondent. In view of my finding on the s 4 of the 1987 Act issue of injury arising out of or in the course of employment, it is not necessary to make any findings in respect of s 9A of the 1987 Act.

SUMMARY
[23] ARD P 29.

The applicant entered into a contract of service with the respondent prior to 10 January 2007.
The applicant did not suffer injury arising out of or in the course of his employment with the respondent on 10 January 2007.
Award for the respondent.

[2021] NSWPIC 423

17 August 2020