Noble v Petuha - [2024] NSWPIC 79

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Noble v Petuha [2024] NSWPIC 79
APPLICANT:	Lisa Maree Noble
RESPONDENT:	Tete Petuha
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	23 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum death benefit by mother of deceased; deceased, who was 16 years old, was engaged in a work trial when she was killed in a motor vehicle accident during her lunch break; applicant claimed to have been partly dependent on deceased; consideration of Cabra-Vale Ex-Active Servicemen’s Club Ltd v Thompson, Stevens v Brodribb Sawmilling Company Pty Ltd, Dietrich v Dare, Drzyzga v G & B Silver Pty Ltd, and Birkett v Tubbo Estate Co Pty Ltd; the arrangement between the deceased and the respondent lacked “the element of mutuality of obligation” essential to formation of a contract; no obligation on deceased to perform any work, or on respondent to provide it; deceased was not a worker employed by the respondent at the date of her death; Held – award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Hannah Faith Marsland-Howard (the deceased/Ms Marsland-Howard) was killed in a motor vehicle accident on 8 June 2022, when the vehicle in which she was a passenger was involved in a collision with a truck. She was 16 years old.
Ms Marsland-Howard’s mother, Lisa Maree Noble (the applicant/Ms Noble) has made a claim for the lump sum death benefit, pursuant to s 25(1) of the Workers Compensation Act 1987 (the 1987 Act); and for interest on the lump sum pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Ms Noble claimed that Ms Marsland-Howard was employed by the respondent, Tete Petuha (Mr Petuha) as a shedhand at the date of her death.
On 7 October 2022, the respondent’s insurer, Insurance and Care NSW (icare) issued
Ms Noble with a notice pursuant to s 78 of the 1998 Act, disputing liability for the claim.
Icare disputed that Ms Marsland-Howard was a worker, pursuant to s 4 of the 1998 Act, or a deemed worker pursuant to schedule 1 of the Act.
Icare also disputed that Ms Marsland-Howard was, at the time of her injury, on a journey that was covered by s 10 of the 1987 Act, or, if she was on such a journey, that there was a real and substantial connection between her alleged employment and the accident or incident out of which the injury arose, as required by s 10(3A) of the 1987 Act.
Icare also disputed that at the time of the injury, Ms Marsland-Howard was temporarily absent from her alleged place of employment during any ordinary recess or authorised absence, within the meaning of s 11 of the 1987 Act.
Finally, icare disputed that Ms Marsland-Howard’s alleged employment was a substantial contributing factor to the injury that resulted in her death; and that her death resulted from an injury…

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.

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Details

Case: [2024] NSWPIC 79
Decision Date: 23 February 2024

CaseChat Overview and Summary

The case of Noble v Petuha involved the mother of a deceased individual who sought a lump sum death benefit under workers' compensation laws. The deceased, a 16-year-old, was participating in a work trial when she tragically died in a motor vehicle accident during her lunch break. The applicant argued that she had been partly dependent on the deceased. The decision hinged on the interpretation of various legal precedents including Cabra-Vale Ex-Active Servicemen’s Club Ltd v Thompson, Stevens v Brodribb Sawmilling Company Pty Ltd, Dietrich v Dare, Drzyzga v G & B Silver Pty Ltd, and Birkett v Tubbo Estate Co Pty Ltd. Central to the case was whether the deceased was a worker employed by the respondent at the time of her death, and if the arrangement constituted a contract.

The court examined whether the arrangement between the deceased and the respondent met the criteria for a contract, particularly the "element of mutuality of obligation". The court found that there was no obligation on the deceased to perform any work, nor was there an obligation on the respondent to provide any work. As a result, the deceased was not considered a worker employed by the respondent at the time of her death. The court relied on the established legal framework to conclude that the applicant’s claim for a lump sum death benefit under workers' compensation was not substantiated.

The reasoning of the court led to the conclusion that the deceased did not meet the definition of a worker under the relevant workers' compensation legislation. Consequently, the court awarded the respondent, finding in their favour. The decision underscored the necessity for a mutual obligation in employment arrangements to classify an individual as a worker for the purposes of workers' compensation claims.

Orders