Noble v Petuha

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 for the purposes of ss 25 and 26 of the 1987 Act.
By letter dated 12 September 2023, the applicant’s solicitors made on icare a claim for the sum of $862,350, pursuant to s 25(1) of the 1987 Act and gave notice of a claim for interest pursuant to s 109 of the 1998 Act.
On 13 September 2023, EML NSW Limited advised the applicant’s solicitors on behalf of icare that the claim had been declined on 7 October 2022.
The applicant lodged an Application in Respect of Death of Worker (the Application) on
13 October 2023.
The applicant claimed that on 8 June 2022, the deceased was a passenger in a vehicle being driven from a worksite at Ruby Hills to Walcha during her lunch break. The vehicle was involved in a collision with a truck, and the deceased and the driver were killed. Another passenger, the deceased’s brother, was severely injured.
The applicant claimed that, pursuant to s 11 of the 1987 Act, the accident was “subject to a recess claim”, having taken place during an ordinary recess, that is the deceased’s established lunch break.
The applicant claimed the sum of $862,350, to be paid to her. The Application stated that another person who may have been dependent on the deceased for support was her brother, Joshua Thomas Howard.
The respondent lodged his Reply on 31 October 2023.

ISSUES FOR DETERMINATION

The parties agreed that the following issues remained in dispute:
(a) whether the deceased was a worker, pursuant to s 4 of the 1998 Act, and
(b) if an award was made in the applicant’s favour, whether she was entitled to interest on the lump sum, and, if so, the rate at which and the period for which interest was to be paid.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

By letter dated 16 January 2024, the respondent’s solicitors advised the Personal Injury Commission (Commission) that the respondent maintained the dispute that the deceased was a “worker”; and conceded that the injury that resulted in the deceased’s death occurred in circumstances that were covered by s 11 of the 1987 Act. Therefore, the only threshold liability issue to be determined was whether the deceased was a “worker” employed by the respondent at the time of the injury.
The matter was listed for conciliation/arbitration hearing by the Teams platform on
30 January 2024.
Mr Brown of counsel, instructed by Mr Grady, appeared for the applicant, who was present. Mr Harris appeared for the respondent, instructed by Ms Ryder of EML and Ms Dean of icare.
The parties agreed that I would determine the liability issue. If it were determined in the applicant’s favour, they would attempt to agree on the claim for interest and seek a determination on that claim should agreement not be reached.
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 Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents, and
(c)    letter from the respondent’s solicitors to the Commission dated 16 January 2024.

Oral evidence

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

FINDINGS AND REASONS

Evidence of the applicant, Lisa Maree Noble

Ms Noble’s statement is dated 14 September 2023.
Hannah was employed by Tete Petuha as a shedhand, also called a rouseabout. The day of her death was her first day of employment, working on a paid trial basis. The employer intended to take Hannah on full-time from the following day. Hannah’s brother, Joshua Howard, was also employed by Tete Petuha and was working that day.
On 8 June 2022, Hannah and Joshua left for their lunch break at 12 noon. They left in a vehicle driven by Joshua’s partner, Tomeica (Molly). Molly pulled out in front of an oncoming truck while driving into town from the worksite. This collision resulted in the deaths of Hannah and Molly, and a brain injury to Joshua.
As she was frequently away from home, due to her work, Hannah performed the majority of the housework. These domestic tasks were now completed more slowly and less frequently.
Hannah fed their animals. They had five dogs, five sheep, 15 chickens, and three horses. She was unable to keep up with the feeding, due to her work. As a result, she gave away four dogs, two horses, and most of the chickens. Hannah’s horse was stabled at a friend’s property, as she was unable to care for it.
Hannah frequently assisted with errands, such as collecting mail from the post office in town or purchasing dinner. Those tasks were now rarely able to be performed in a timely manner.
Hannah provided emotional support, comfort, and joy. They regularly spent valuable time with one another. Hannah was not only her daughter, but her cherished friend, and her loss remained extremely upsetting. They always went to the New England Hotel for the raffles every Friday, and on other days to play pool. She remained unable to play pool and had only recently been capable of attending the raffles.
To her knowledge, the only other person dependent on Hannah was Joshua. Hannah had lived with him for about 16 months, when she was unable to keep her at home.
Hannah’s father resided in Queensland. He had relocated to live with his wife and their children when Hannah was three months old. He had not seen or visited her since that time. He was not dependent on Hannah.

Evidence of Joshua Thomas Howard

Mr Howard’s statement is dated 12 September 2023.
He was employed by Tete Petuha from about April 2021 until the accident on 8 June 2022. He performed roles such as crutching, rouseabouting, woodcutting, and wool pressing.
On 8 June 2022 Hannah had commenced work for Tete. He was present for a conversation in which Tete asked Hannah to come in for a paid trial day. If she did well, Tete would take her on full-time. Tete described this trial as “work experience”, but explained he would pay Hannah for her work.
Tete started Hannah in the position of shedhand, also referred to as rouseabout. While he was performing a different role that day, he was very familiar with the rouseabout work and performed it himself at times.
When he was employed by Tete, he was paid “per run”, with each “run” paying from $80 up to about $170, depending on his role, and usually taking about two hours. When he was woodcutting, he would typically be paid the same as he would earn wool pressing or rouseabouting. This was the way all the workers were paid. He never had to provide invoices, and nor, to his knowledge, did any of the others.
No matter which workers were rostered to work, things such as the worksite and the duties each would be performing were controlled by Tete and relayed to them at the start of the day. If any changes needed to be made, he would instruct them.
On 8 June 2022, Tete had instructed Hannah to attend Ruby Hills at an address in Walcha. She attended that site, where she was instructed by Tete that she would be doing rouseabout work.
Hannah had never performed rouseabout work. He believed Tete supervised her all morning, instructing her which tasks to perform and how to perform them. His memory of the day was not clear, due to suffering a head injury in the accident.
Hannah did not bring any equipment for the work, as all equipment, such as a broom and paddles, was provided by Tete.
Hannah was required to work the same set hours as everybody else. The work and break times were consistent, and the workers would do the same hours each day.
Hannah would not have had the power to delegate her work and was obligated to work during her time at the site, especially as she was being paid.
Hannah was being paid on a “per run” basis. She was to be paid $45 per run for the day and Tete intended to place her in full-time employment the following day. Once she was on a full-time basis, he believed her pay would have increased to be similar to his rates, depending on her role.
Hannah was not, to his knowledge, advised that she would be required to provide any invoice for her work that day. The agreed payment was never sent to her, as she passed away before this could occur.
He and Hannah left the site at 12 noon on 8 June 2022. As the site was only perhaps five minutes from town, workers often went into town to get lunch or run errands. They left with his partner, Molly, who had driven to pick them up, intending to go to town. It was on their way to town that the accident occurred.
He had no recollection of the accident.
Mr Howard has signed a statutory declaration, dated 14 September 2024 [sic], in which he stated that he neither wished to claim to have been dependent on the deceased, nor to obtain independent legal advice.

Evidence of Tete Petuha

Mr Petuha has made two statements, one dated 29 June 2022, and the second dated
5 July 2022, although both were signed on 6 July 2022.
The first statement was prepared in response to Mr Howard’s claim and is of limited relevance to this matter.
On 29 June 2022, Mr Petuha stated that he operated a team of shearers across the northern tablelands of New South Wales and further afield. He was located in Walcha.
He did not know Josh before he commenced employment in February 2022 as a wool presser. Josh was working full-time but was marked on his tax forms as a casual employee, because that was the nature of the industry, working under the Pastoral Award.
There was no formal employment contract with Josh. It was a verbal agreement and there was very little paperwork for him on file. Josh was paid weekly, after the calculation of his hours worked. He was paid on the basis of a “run”, each of which was of two hours’ duration. He was generally paid $70 per run.
Hannah had literally only just started on work experience on the day of the accident, as a shedhand/rouseabout.
On 8 June 2022, he picked Josh and Hannah up from Josh’s place, and they arrived at the shed between 7am and 7:30am. Their start time was 7:30am and it was Hannah’s first day of work experience.
Mr Petuha’s second statement was made in response to this claim. Some of the evidence is not relevant, in view of the respondent’s concession with regard to the application of s 11 of the 1987 Act.
He knew Hannah prior to 8 June 2022. She had been living with her brother, who was working for him.
The reason that Hannah came to be performing work experience was that he was starting to need more workers by 2 June 2022, because they were getting very busy.
He was at Josh’s place on 3 June 2022, and Hannah was there. He knew Hannah had finished high school, so he asked what she was doing. She said she had a traineeship with Elders, so he thought she may be interested in doing some work with him. He asked whether she wanted to try it out and she said “Yes”.
Hannah had not been to the worksite before 8 June 2022. She commenced performing work experience as a shedhand/rouseabout on 8 June 2022. She was to be paid for her work experience. However, they never got that far. He would have paid her $180 gross for the day, which would have been $45 per run. This was above the award rate of $41.73 [per run] for someone of her age and experience.
There was no documentation for Hannah because he would have provided her with some paperwork at the end of the day.
The work experience was really just to see if Hannah liked the work, and whether she was capable of performing the tasks. He did not know how she would go, but she did really well.

He was going to give Josh the paperwork for Hannah to complete that afternoon/evening, and she would then have been paid for the work experience and he would have given her full-time hours after that. But they did not see the end of that day.
There were no emails or any other form of documentary communication with either Hannah or Josh to arrange the work experience. It was a verbal agreement.
Hannah was performing the wool roller task on 8 June 2022, and was also learning to pick up a fleece. She had a broom and was sweeping up some of the little locks around the table.
Hannah was not provided any induction or training. They “just get stuck in” and start, under supervision if they were just learning.
He would have been Hannah’s supervisor on 8 June 2022. She was shown what needed to be done and picked up the requirements very quickly. He was impressed with her ability to get the job done.
The job was a six day job, running from 7 June 2022 to 12 June 2022. The accident occurred on day two.
Hannah had been performing her duties really well from the commencement of the day. At approximately 11:50am he departed, as he had to go into town and pay some bills.
He was starting to get really busy around that time and was about to start some other work. They had been so busy that he was not shearing on the date of the incident, but was performing a lot of different tasks at the shed, including shedhand duties. He decided to get some bills paid while he still had time.

SUBMISSIONS

The submissions have been recorded. I will summarise them briefly.

Applicant

The applicant referred to the definition of “worker” in s 4 of the 1998 Act.
The applicant submitted that whether or not there was a contract of employment between the deceased and the respondent depended on whether there was offer and acceptance, consideration, and the intention to enter into a contractual relationship. The dispute would be over the form of the contract.
The applicant referred to the decisions in Cabra-Vale Ex-Active Servicemen’s Club Ltd v Thompson[1] and Stevens v Brodribb Sawmilling Company Pty Ltd.[2]
[1] [2013] NSWWCCPD 49 (Thompson).
[2] [1986] HCA 1; (1986) 160 CLR 16 (Brodribb).
The applicant submitted that the respondent was a sole trader, who needed to employ more workers. There was a conversation between him and the deceased about her coming to work for him. Three people were present, and there are two accounts of the conversation. There was not a great deal of conflict between the evidence of Josh and the respondent.
The applicant submitted that on 3 June 2022, an offer of employment was made by the respondent and Hannah accepted it. There was an obligation on her to work on 8 June 2022, and she was to be paid $45 per run, which the respondent was obliged to pay.
As regards the intention to create legal relations, the applicant submitted that the respondent had formed the view that he needed to employ additional staff; there was an agreement to pay Hannah $45 per run; the consideration of the award rate demonstrated an understanding that Hannah was covered by an award; and Hannah was subject to the same conditions as all the other workers. She was treated the same. She had presented for work, and it was the intention of both parties to enter into legal relations.
As regards the indicia, as referred to in Brodribb, the applicant submitted that Hannah was to be remunerated in a manner consistent with the award; the respondent was to provide the equipment; Hannah did the same work as the others; Hannah could not delegate the work; and the respondent supervised and directed her in the method of the work. It was unskilled work, requiring no trade or professional qualifications. The respondent had control of all aspects. The test in Thompson would lead to the same conclusion.
The applicant submitted that the area of conflict between her case and that of the respondent was his use of the phrase “work experience”. It was quite clear that Hannah was part of the workforce. She had a real role, doing real work, that her brother had previously done. The respondent’s evidence was that the work experience was to see if she liked the work and was capable of performing it. It was akin to a probation period. If Hannah was not suitable, there was a mutual right to terminate the arrangement.
The applicant submitted that the fact that the respondent drove Hannah to work was consistent with employment, rather than any other form of relationship.

Respondent

The respondent submitted that there was no real factual issue between the parties.
The respondent submitted there was no suggestion that Hannah had been involved in “work experience”. That was just the terminology he had used. It was a “work trial”, that lacked the requisite mutuality of obligation.
The respondent submitted that the situation in this matter was the same as that in Dietrich v Dare,[3] a decision of the High Court.
[3] (1980) 54 ALJR 388 (Dietrich).
The respondent also relied on two decisions of her Honour Judge Truss, in the Compensation Court of New South Wales, in Drzyzga v G & B Silver Pty Ltd[4] and Birkett v Tubbo Estate Co Pty Ltd.[5]
[4] [1994] NSWCC 12; (1994) 10 NSWCCR 191 (Drzyzga).
[5] [1997] NSWCC 12; (1997) 14 NSWCCR 369 (Birkett).

The respondent submitted that while the facts of Thompson were very different, the claim in that case failed because of the failure to establish mutuality of obligation. This case involved the same situation. There was no obligation on the deceased to attend or perform work. There was no impediment to her walking out at any time.
The respondent submitted that his evidence, which was not relevantly disputed by Joshua, was consistent with the arrangement being no more than a work trial. There was no intention at that point to create legal relations. Legal relations giving rise to a contract of employment would not have been created unless and until the work trial had been successful for both parties, and they agreed to enter into a contract of employment. Until that happened, there was no contract of employment, and, tragically, that did not happen.
The respondent submitted that the onus was on the applicant, and the evidence fell considerably short of meeting the onus. The fact that he drove the deceased to work was not relevant.
The respondent finally submitted that there should be an award in his favour.

SUMMARY

Section 4 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.”
As the respondent submitted, there is no real factual issue between the parties in this matter.
The respondent suggested that the deceased try the work of a shedhand or rouseabout, to see if she liked the work, and was capable of performing it. He would pay her for her work. If she did well, and, it is assumed, she wished to work for him, he would, as Mr Howard stated, “take her on full-time”. The deceased, of course, was killed during her lunch break on the first day she attended the worksite.
The applicant referred to the decision in Thompson, in which Deputy President Roche said, at [31] (citations omitted):
“There are four essential features of a contract of employment…[they] may be summarised as follows:
(a) there can be no employment without a contract;
(b) the contract must involve work done by a person in performance of a contractual obligation to a second person. That is because the essence of a contract of service is the supply of the work and skill of the worker;
(c) there must be a wage or other remuneration, otherwise there will be no consideration, and
(d) there must be an obligation on one party to provide, and on the other party to undertake, work. The obligation required to constitute a contract of employment is that:
‘the putative employer be obliged to pay the putative employee in accordance with the terms of the contract for services reasonably demanded under it, and that the putative employee be obliged to perform such services. That is as much so where the service consists of standing and waiting as where it is active.’”
Roche DP went on to say, at [34]:
“The very essence of a contract of service, namely the obligation on one party to provide, and on the other party to undertake, work, is missing in the present matter. Mr Thompson had no obligation to perform the duties of the pension officer. His evidence was that he was ‘appointed’ as the pension officer in early 2000. There is no evidence that he accepted that position in return for a promise of remuneration or that he had any obligation to perform activities of a pension officer.”
The facts in Dietrich were, briefly, that Mr Dietrich agreed to do some painting for Mr Dare. He was to be paid at the nominal rate of $2 per hour, as an initial trial period was contemplated. Mr Dietrich was unemployed, had described himself as having a problem with alcohol, and also had a physical disability.
Mr Dietrich was injured while painting and brought a claim for compensation. The High Court held that there was no contract of any type. There was no obligation on Mr Dietrich to do anything pursuant to the agreement, which was viewed as a trial. It was found that Mr Dare’s offer of payment played no part in Mr Dietrich agreeing to the trial.
Truss CCJ considered Dietrich in Drzyzga. Counsel for the respondent in that matter referred to the following passage of the joint judgment of Gibbs, Mason and Wilson JJ, in which their Honours said:
“Nor are we persuaded that the arrangement gave rise to a contract of service. It seems to us that the arrangement lacked the element of mutuality of obligation that is essential to the formation of such a contract. A contract of service is of its nature a bilateral contract. It may be conceded that merely to say that the parties agreed upon a trial does not necessarily rule out its formation. The answer in that respect will depend upon the detail of the arrangement. In particular, that answer will be affected, among other things, by the discovery in the arrangement of the assumption by the ‘worker’ of an obligation to perform some work, it being the purpose of the trial to determine whether the work is performed in a satisfactory manner. But in the present case we cannot discover an obligation on the appellant to perform any work at all.”
Truss CCJ said:
“It is well established that for there to be a binding contract the following elements must be proved:
(a) offer by one party;
(b) communicated acceptance by the other;
(c) consideration (or what is frequently referred to in ‘employment’ cases such as Dietrich v Dare as ‘mutuality of obligation’).”
Truss CCJ was referred to Brodribb, but said:
“However, in that case it was accepted that there was a contract, the issue for determination being whether Stevens and Gray were employees of Brodribb Sawmilling Co or independent contractors. In view of the fact that I have found that there was no binding contract between the parties at the date of injury, in my view the issues canvassed in this case are not relevant.”
In Birkitt, Truss CCJ again referred to Dietrich, and concluded that there was no contract of service between the applicant and the respondent. In her Honour’s view, “…the arrangement lacked the element of mutuality of obligation which is essential to the formation of such a contract: see Dietrich v Dare…”
In my view, the circumstances in which the deceased came to be at Ruby Hills on
8 June 2022 were analogous to those in which Mr Dietrich came to be engaged in doing some painting for Mr Dare.
The arrangement between the deceased and the respondent was that Ms Marsland-Howard was asked if she would like to “try it out”. The work trial was, as the respondent stated, to see if she liked the work and was able to perform it.
There was no obligation on the deceased to perform the work of a shedhand/rouseabout, or any work at all. Had she decided, once the tasks expected of her were explained, or at any time before, that she did not want to proceed, or did not want to complete the day’s work, she was not obliged to do so. She could have left the worksite at any time.
Similarly, had the respondent changed his mind about giving the deceased a work trial, there would have been no obligation on him to proceed with it. I place no weight on the fact that he gave the deceased a lift to the worksite. That is an entirely neutral matter.
I do not accept that there was any intention to create legal relations when the deceased was offered a work trial. The respondent did not know whether the deceased had any aptitude for the work. He “did not know how she would go”. As it transpired, she performed well, and he had planned to offer her full-time work, which she would not have been obliged to accept. That offer was, of course, never made.
As the respondent submitted, legal relations giving rise to a contract of employment would not have been created unless and until the work trial had been successful for both parties, and they agreed to enter into a contract of employment. Until that happened, there was no contract of employment. There was no mutuality of obligation.
While the applicant referred to Brodribb and the indicia to be considered in determining the issue of “worker”, as Truss CCJ said in Drzyzga, the issues canvassed in that case are not relevant where, as in this case, there was no binding contract between the parties at the date of Ms Marsland-Howard’s death.
Having regard to the factual matrix in this case, and the relevant authorities, I have determined that the deceased, Hannah Marsland-Howard, was not a worker employed by the respondent at the date of her death. It follows that the applicant is not entitled to the lump sum death benefit, pursuant to s 25 of the 1987 Act.
The order is set out in the Certificate of Determination.

[2024] NSWPIC 79

23 February 2024