Nolan v Trent Visscher t/a in Time Roofing

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Nolan v Trent Visscher t/a In Time Roofing [2022] NSWPIC 576
APPLICANT:	Beaudon Brown-Nolan
RESPONDENT:	Trent Visscher t/a In Time Roofing
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	19 October 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act) in respect of injury to nervous system and lumbar spine when applicant fell from a ladder; respondent disputed that the applicant was either a worker or deemed worker; applicant relied mainly on “deemed worker”, pursuant to Schedule 1, clause 2 of the 1987 Act; parties agreed that if applicant established he was a worker or deemed worker, medical dispute to be referred to Medical Assessor (MA); consideration of Scerri v Cahill, Humberstone v Northern Timber Mills, Pasqua v Morelli Constructions Pty Ltd, Zuijs v Wirth Brothers Pty Ltd, Stevens v Brodribb Sawmilling Co Pty /ltd; Hollis v Vabu, Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd, Higgins v North Coast Theatres & Drive-ins Pty Ltd and Djuric v Kia Ceilings Pty Ltd; Held – the applicant was a deemed worker of the respondent at the date of the injury; the matter is remitted to the President for referral to a MA, or MAs, for assessment of permanent impairment as a result of injury to the nervous system and lumbar spine.
determinations made:	1. That the matter is remitted to the President for referral to a Medical Assessor/s for assessment of permanent impairment as a result of injury to the nervous system and lumbar spine on 11 November 2015. 2. That the Medical Assessor/s is to be provided with the following: (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments; (c) Application to Admit Late Documents dated 21 September 2022 and attachments, and (d) Application to Admit Late Documents dated 23 September 2022 and attachments.

STATEMENT OF REASONS

BACKGROUND

The applicant, Beaudon Brown-Nolan (Mr Brown-Nolan), claims to have been employed by the respondent, Trent Visscher t/a In Time Roofing (Mr Visscher) as a painter.
Mr Brown-Nolan sustained injury to his head and lumbar spine when he fell from a roof at premises at Shelly Beach on 11 November 2015.

It is not clear when the applicant notified his injury or made a claim. However, in or about August 2018, Insurance & Care NSW (iCare), acting for the Workers Compensation Nominal Insurer, issued Mr Visscher with a notice pursuant to s 141(2) of the Workers Compensation Act 1987 (the 1987 Act). This section of the Act relates to claims made against uninsured employers, or those that iCare has reason to suspect is an employer.
ICare requested particulars of the working relationship between Mr Brown-Nolan and Mr Visscher.
Mr Visscher responded on 8 August 2018 that the applicant was a sub-contractor. He had been employed for two days. He was not sure when the applicant commenced employment, but he had done one day’s work prior to the incident. His usual duties were roof cleaning, and he worked his own hours. He was paid per job, and his gross earnings for the time that he worked were $600.
The applicant had ceased work on 11 November 2015. Mr Visscher stated that on 11 November 2015, “he had a fall, I’m not sure of specific medical information.” The injury was not reported. As for witnesses to the injury, Mr Visscher responded that he had been told the applicant’s brother was with him but did not have those details.
Mr Visscher assumed the applicant was not still off work, as he had heard he was working for other roofers, and he had called Mr Visscher at Christmas looking for work. The applicant had not provided any medical certificates.
On 24 October 2018, iCare issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). ICare disputed that Mr Brown-Nolan was either a worker or a deemed worker. It maintained that the nature of his relationship with Mr Visscher was that of an independent contractor, rather than an employee. As it had not been provided with any medical evidence, it could also not be satisfied that he had sustained injury as alleged. It did not accept that he suffered any incapacity for work that resulted from a work injury, and disputed liability for weekly benefits and medical expenses.
By letter dated 1 April 2020, the applicant’s solicitors requested that iCare review its decision.
By letter dated 15 April 2020, iCare advised the applicant’s solicitors that it maintained its decision to dispute liability.
By letter dated 15 October 2021, the applicant’s solicitors made on his behalf a claim for weekly benefits from 11 November 2015; and for permanent impairment compensation, pursuant to s 66 of the 1987 Act in the amount of $298,953.52, in respect of 51% whole person impairment (WPI). They advised that his claim for medical expenses would be particularised in due course.
On 15 February 2022, iCare issued the applicant with a further notice pursuant to s 78 of the 1998 Act, in which it disputed liability for his claim for WPI. It confirmed its previous decisions on 24 October 2018 and 15 April 2020.
The applicant lodged an Application to Resolve a Dispute (the Application) on 29 June 2022.
The Application claimed that, in about October 2015, the applicant was employed by the respondent as a painter. On 10 November 2015, he was instructed by the respondent to attend a job site at Shelly Beach, for the purpose of painting the roof the next day. He attended the respondent’s premises to collect the ladder and a pressure cleaner to perform the job that had been allocated by his employer.
The applicant claimed that on 11 November 2015, he attended the job site at Shelly Beach. His brother, Levi, attended to help him move the pressure cleaner. His brother was not his employee and was not paid anything for this attendance. The applicant fell from a roof and sustained a head injury and injury to his lumbar spine.
The Application claimed weekly benefits compensation from 11 November 2015 ongoing, pursuant to ss 36 and 37 of the 1987 Act and the sum of $298,953.52 pursuant to s 66 of the 1987 Act in respect of 52% WPI as a result of injury to the applicant’s nervous system and lumbar spine on 11 November 2015.
The respondent lodged its Reply on 21 July 2022

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant was a worker, and
(b) whether the applicant was a deemed worker.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The matter was listed for conciliation/arbitration hearing on 30 September 2022, on the Microsoft Teams platform. Mr Epstein of counsel, instructed by Mr Counter, appeared for the applicant, who was present. Mr Stockley of counsel, instructed by Ms Tippett, appeared for the respondent. Ms Slade of EML also attended. Ms Tippett and Ms Slade were excused from attending the hearing, but each was available by telephone had she been required to provide instructions.
The applicant amended the Application to discontinue the claim for weekly benefits.
The parties agreed that, should the dispute be determined in the applicant’s favour, the medical dispute was to be referred to a Medical Assessor/s, who would be provided with copies of all the pleadings.
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)    the Application and attachments;
(b)    Reply and attachments;
(c)    Application to Admit Late Documents dated 21 September 2022 and attachments, filed by the applicant, and
(d)    Application to Admit Late Documents dated 23 September 2022 and attachments, filed by the respondent.

Oral evidence

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

FINDINGS AND REASONS

Evidence of the applicant, Beaudon Brown-Nolan

Mr Brown’s first statement is dated 14 August 2018.
His name is Beaudon Robert Brown-Nolan (previously Mowday). He had been known by the name Beaudon Robert Brown-Nolan since he got his driver’s licence at 17. Until then, all his documentation was under the name Mowday. When he went for a licence, he had to get a birth certificate, and it said his surname was Brown-Nolan. He had been using that name since then.
He did not have any direct memories of the accident itself, only what had been told to him. Around six months [after], he did remember some of the day. It “actually caused me to have a stroke”. What he could remember then was being at the site. He remembered he had his brother there to assist with the machine that was in the back of his car. He had helped lift it out. He also remembered washing the roof, or the gist of it, not the details.
He did not know the exact time of the accident. He knew it was around lunch time, based on how long it took him to wash a roof.
He remembered that while they were driving to the job, the tyre was rubbing on the guard of his car, and he had to pull over and fix it. That had nothing to do with the accident. What seemed to happen was if he tried too hard to think about the accident, it set off a headache.
He had been told by his brother that he helped get the machine out of the car. They set it up and he got his harness on “and that” and jumped up on the roof and washed the roof. He then came back down and brought his gear down. He had then gone to go back up the ladder with his “flexi”, to point the top storey. He had a bucket that would have weighed around 15kg and his trowel.
He only had to do the top storey because “Trent” was going to do the lower floor roof. That was because Trent had lost his nerve on two storey roofs. He was not there that day. He was due to attend the site later that day.
He climbed the ladder with the bucket of flexi. As he went to step off the ladder onto the roof, something happened. His brother seemed to think it was the “ocky strap” that he had tied the ladder off with that broke and caused the ladder to fall back, and he had held onto the ladder as it fell.
He did not have his harness on. The way they normally did it was, “when you get to the top, you put the flexi down, then you tie the harness off around the beam under the tiles, you kick up a couple of tiles and tie it off there.” So, “the time you spend climbing the ladder is the only time when you are actually moving without a harness.” He came off the ladder, not the roof.
The ladder belonged to Trent. He recalled they had to pick up the ladder because he had a longer two-storey ladder. Trent knew how long his ladder was, and he knew the section they were going onto was a bit higher, so they needed Trent’s ladder. He had picked it up from Trent’s house. He did not remember when. It was either that day or the day before.
He knew Trent’s house was on the Central Coast. He did not know the suburb or street address. He did not believe he had ever been there before. It was a private, two-storey house. He believed there were some single storey roof sections.
He did not have photographs of the scene. He believed there was a SafeWork (NSW) (SafeWork) guy on scene afterwards, and he got photos. His father, Robert Brown, arrived about an hour after the accident.
He had affected memories from before the accident, so his last direct memory before it was a little vague. He remembered a lot of things, but not everything, and had trouble explaining. He had limited memories after the accident. He believed he was air-lifted to John Hunter Hospital (JHH) and was there for nine months. He was then able to go home with a carer. He had the paperwork if it was required.
He had suffered multiple fractures to his skull. He also broke the L2 disc in his lower back and had some scarring on his legs. He no longer had a sense of smell or taste, and had short-term memory loss, “they call it pro [sic: post]-traumatic amnesia.”
He had trouble with everyday tasks, just normal living, taking medications. He could not hold a job, because if he worked for a couple of hours, he started to get bad head pains. He could not learn to do anything he didn’t already know.
These were all ongoing permanent problems. He did testing at the Brain Clinic at Lingard, but according to them, he was “nearly a write-off – that was his wording, he said there was ‘no way in hell you should be getting on a work site’”. He was seen by “Nathan” (Mr Nathan Haywood) his case manager. His doctor was Dr David Kellett, whom he saw only when he came up from Sydney.
He was on medication to assist with sleeping. They had to take him off those meds as his blood pressure was so high.
He denied ever previously suffering any head injuries. He had had one previous CT scan. That was not from an injury trauma, but due to behavioural issues when he was a teenager. That was all clear. He did not know who the doctor was back then. He had also not had any previous injuries to his back. They diagnosed mild scoliosis, but that was only picked up at the time of the accident. It had never previously caused him any problems.
He previously suffered from polycystic kidneys. He was born with this. It is a renal problem, so he had trouble with urine and had to keep up his fluids. It did not prevent him working, but if he got sick because of the kidneys, he would end up in hospital. They would then have to disclose that, and he would lose that job. As he got older, they were better able to work out his diet and water intake, and it was now managed. It was not preventing him working at the time of the accident. He had previously been on disability, but that was a number of years before.
On the day of the accident, he was working for Trent Visscher, the owner and operator of In Time Roofing. He also worked for Trent’s brother, Troy (Millennium Roofing), and his father Frank (NSW Roofing), and for another company, Modern Roofing. He started off with Centrepoint Roofing. He did the same job with all the companies. The job was roof restoration work, and all the companies were the same. They did tin, tile, and terracotta tile roofs.
The tin roofs were a two-day job, and the tile roofs were three days. The terracotta tiles usually cannot be painted, so it was back to a two-day job. He did all the tasks with each employer, from start to finish. Generally, he worked in the Newcastle, Hunter, and Central Coast areas with each employer. He had not worked for any of these employers since the accident.
His memories were vague, but his recollection was that he worked as a roofer for around three to four years. He believed he was with Centrepoint for around one year to start. They closed down, so he was not working for them at the time of this injury. When he did work for them, he only worked with them, not the others.
From Centrepoint, he went to Modern Roofing. He was only there for about two months. That is when he met Frank, and from then he worked for him and his family, until the time of the accident. He did not do any more work for Modern Roofing after he started with Frank and his family.
His recollection was that he worked for each of Trent, Troy, and Frank for just over a year until the time of the accident. They used to work it out between them, which days each of them wanted him. That was up to them. He didn’t have a say in that. There was never anything written down to “contract” it. It was just a verbal agreement.
With Modern Roofing he was on a contractor’s rate and had to sign a contract, but with Centrepoint, it was an employer/employee relationship.
With Modern Roofing, it was only them getting him the work. He didn’t really have the experience with that, so he moved on. He also had to have his own insurances and other expenses which had to come, for GST and other taxes. That did not continue with Frank, Troy, and Trent. They each used to pay him in cash or deposit into an account. That was up to them.
They gave him $250 per day. There were no set hours. They used to try to start on the job at 7.00am, but the finish time varied. On weekends they started at 8.00am. Each paid him individually, and each at the same rate.
The applicant was asked a series of questions.
He considered he was a direct employee of the respondent, working on a casual basis and being paid a day rate for his duties. He also considered he was direct employee of Troy Visscher and Frank Visscher.
He did not recall or have a record of the exact date when he commenced with Trent. He was not required to sign a contract and there was no other paperwork to complete. He did not have to do any inductions or tickets. He already had his White Card and Working at Heights, from Modern Roofing. He only received on the job training from Trent, Troy, and Frank, on how they liked the job done.
He could not say exactly how often he worked for Troy in the 12 months before the accident, because sometimes he was paid in cash and sometimes into his account. He was a casual employee with Trent.
He did not know what hours Trent “expected” him to work. The way it operated was that he worked for Trent, Troy, and Frank, and they would work out who he was working for on each day, depending on how much work each of them had at any particular time. He thought that over the 12 months before the accident, he worked for each of them about an equal amount of time.
It was agreed he would be paid a flat rate of $250 per day. He did not know if it was in accordance with any award or industrial instrument. It was not paid per hour, it was per day, so he guessed it was more in relation to “tasks completed”, because they would go to a site with a particular set of tasks to complete on that day.
He did not know exactly how Trent got his work. He believed he had an ad in the Yellow Pages but did not recall ever seeing it.
He expected the work would be ongoing. In Time Roofing was continuing trading, so he expected he would continue working. He expected he would have continued to work for Trent in the same manner and number of times per week as he had up until that point. He believed that because he continued trading, and if he didn’t have the fall and the injuries, he would have been available to work for him, Troy, and Frank.
Given he was paid $250 per day for his work for Trent, $7,500 equals 30 days for the total year. He thought the total wages paid to him, both in cash and into the bank, would have been less than that amount.
He only used to hear about work around three days ahead. Trent, Troy, or Frank would tell him what was coming up. Trent, together with Troy and Frank, definitely controlled where and when he worked. If he was working for Trent on any particular day, it was him who controlled where and when he worked. He would be working on the same site and directing him what to do.
He was never subjected to any disciplinary action or code of conduct. As far as he was aware, he was never supplied with a code of conduct by Trent.
He was supplied with a T-shirt saying, “In Time Roofing”. He wore shorts and Dunlop Volley sneakers.
He did not have a designated workspace and did not work at just one worksite. They worked all around Newcastle, the Hunter, and Central Coast at different times.
He was not permitted to sub-contract work. He had his brother at the accident site, but he was not being paid. He was just along to help lift the equipment. He had just gotten out of hospital from his kidney condition.

He did not recall any time when they had to rectify mistakes he had made.
The relationship was performed on a continuing basis. Trent controlled how he worked, what he worked on, and directed him what to do. He was responsible to Trent for the quality of his work. Trent supervised him as he worked. As far as he was aware, Trent was not on site on the day of his accident.
He worked generally five or six days a week, but that was between Trent, Troy, and Frank. They generally started at 7.00am and worked until about 3.00pm each day, but it varied at times, depending on the job. They used to work until they finished.
They wore Dunlop Volleys for grip on the roof, and a harness on the roof, but otherwise there was no specific safety gear. He wore gloves in the winter for warmth.
He did not know who the principal was on the site on the day of the accident. As far as he knew, it was a private dwelling. He was the only person working that day. Levi (Mr Levi Mowday) had come along to assist with lifting the gear out of the car, but he was not an employee. His father also came to the site. No other persons reported to him.
He did not have to supply his own tools. Trent supplied them when he worked for him, and so did Troy and Frank when he worked for them. The tools used were a harness and lanyard, bucket and trowel, high pressure cleaner, and airless paint machine. He had this equipment from when he was a contractor with Modern Roofing but was not required to use it when he was working for Trent. He was not required to supply his own plant or materials.
He did not have a “trade qualification” as a roofer, but that was his normal occupation at the time, and he was working for Trent in that capacity. He got paid by Trent and did not pay anyone else.
When he was with Modern Roofing, he had to get an ABN. His father recommended he put an ad in the paper, since that was going to cost. He put an ad in the Newcastle Herald, but this was over a year before the accident, and it only ran for two weeks. He got a few small jobs, but nothing ongoing. He was not doing his own work from that source when the accident happened.
He was not doing his “own work” at the time of the injury. He had his own insurance, but it was not current at the time and did not cover the accident, as he was working for Trent.
There was no claim. He did speak with Trent about a claim but decided not to on advice from Trent and Frank. They said they would get him ongoing work, but they never did. As soon as he said he would drop the claim, they basically didn’t have anything further to do with him.
When Frank offered him work as an employee, he took it instead of continuing with Modern Roofing. He did not ever refuse his work, and did not feel he could, as he might stop giving him further work. He did not get any leave entitlements, for sick leave or annual leave, and did not have any time off work while he was with them.
The applicant made a hand-written addition to the statement, noting that Trent came to him to get him to sign a back-dated risk assessment form for the day of the accident.
The applicant made a second statement dated 28 June 2022. It refers to his signed statements dated (the date has been blacked out) and 14 August 2018. He has referred to the s 78 notice and Mr Visscher’s statement dated 17 August 2018.
The statement was provided to address “many of the issues raised” by Mr Visscher, with which he did not agree, to clarify recent developments in his life, and “provide better evidence” concerning the delay in notifying EML about the claim.
At the time of the accident, he was not working with Modern Group Pty Ltd (Modern Roofing), and he was never employed by it. He was a contractor and not an employee. He had stopped working with Modern Roofing at least a month prior to the accident. He had told them he was going to be working with Trent for a bit and would not be accepting any new contracts.
He recalled receiving a payment from Modern Roofing in October 2015. This was in relation to a job he performed prior to September 2015, and he had been chasing payment. He used his ABN and issued invoices when he was engaged with Modern Roofing, but not with In Time Roofing.
The methods by which he was paid varied by each of them. Sometimes Troy would deposit money into his account, but from memory, Trent always paid him cash in hand. He spent the majority of the money and did not deposit it into his account. He assumed In Time Roofing was withholding income tax, as he had never been registered for GST, even when he was a contractor with Modern Roofing.
He started working with Trent in about September 2015. He was introduced to him during his engagement with Modern Roofing, not via a website. He believed he was a direct employee for two to three months. Trent told him he would pay a flat rate of $250 per day for the job. He understood Francis (Frank) and Trent were also employees of Troy.
He did not have set or scheduled hours. Prior to each job, he would be informed by text or phone call who he was working for and the address of the job site. He worked five days a week. His hours depended on the property size and tasks required,

He normally began work at around 7.30am to 8.00am. He would finish between 2.00pm and 3.00pm. If the job was large, there were days when he would not finish until 5.00pm. He did not choose his own hours of work. While work was allocated to him casually, he had no discretion to refuse it, as his employment could be terminated. He could not leave the job site at his own will or without his employer’s approval. He would not negotiate the starting time with Trent. He had no say as to when he would start.
At the time of the accident, he was dealing with no other employer than In Time Roofing. The trigger for his decision to stop accepting contracts was that when he was working with Modern Roofing, he would be forced to pay a hire fee to use their equipment, such as the pressure cleaner or painting machine.
He described as “an outright lie” Trent’s statements that he was responsible for supplying his own tools, and there were no materials required for high pressure cleaning. High pressure cleaning involved using a pressure cleaning machine to clean the tiles before they were painted. The machine weighed 60kg and required two people to move it around the site. One person cannot move it.
He had never owned a pressure cleaner, as it is expensive to obtain and maintain. When he was subcontracting with Modern Roofing, he had to pay a hire fee to use their machine. When he was employed by Trent, he used his machine and his paint machine, without being charged a fee.
Trent always took the equipment to the job site in his own vehicle. They arrived in different vehicles. The Land Cruiser referred to in the SafeWork investigation was his personal vehicle.
He believed the best category of the arrangement was a casual employment. He worked about two or three jobs with Trent before the accident. At every job site, aside from the accident [site], Trent would conduct toolbox talks, discuss how they were going to conduct the job, and decide how to access the roof.
On 10 November 2015, he received a text from Trent, asking him to attend a job site on 11 November 2015 at Shelly Beach, at approximately 8.00am. Trent advised he would not be attending, as he was afraid of two-storey heights. Trent told him he would give him $1,000 if he would help him out. There was no negotiation as to the price for his labour.
Later that day, he drove with Levi to Trent’s property (he has provided an address at Pelican) to collect the equipment he would need. He had never been required to collect it before, as it was always supplied for him.
He collected the equipment from Trent’s property. Trent was present. He, Levi, and Trent loaded the pressure cleaner into his truck. He also took two ladders, a short ladder and a two-storey ladder, and strapped them to the racks of his truck.
They did not do a toolbox talk or provide a risk assessment on this occasion. He assumed Trent had visited the site, as he would have needed to do an inspection to prepare a quote.
On 11 November 2015, he attended the scene of the accident with Levi. He did not pay Levi a wage. Levi was there as a favour to help him move the pressure cleaning machine. It is impossible for one person to move it.
He took the ladders from his vehicle and set them up against the house. He set up the short ladder from the ground floor to the roof and set up the two-storey ladder from the ground floor to the second storey.
He climbed the ladder whilst carrying a 25kg bucket of flexi. This was supplied by Trent. He did not purchase it. He was wearing a harness at the time of climbing the ladder. Either way, this would not have mattered, as the harness is not connected to the roof until after you get off the ladder. It is not usual practice for it to be connected whilst climbing the ladder.
He knew he slipped from the second storey to the ground floor, as he had reviewed photos that showed tiles from the first floor, smashed, and the bucket of product on the first storey.
He had suffered from a congenital polycystic kidney disorder since he was a teenager. On 7 November 2015, he was admitted to JHH with symptoms related to this condition. He was discharged on 8 November 2015. He was not prescribed any drugs.
After the accident, his condition was stable until approximately 2019, when he suffered a severe deterioration of his kidney and renal function. In about January 2021, he was advised he would require dialysis. He underwent approximately four to five hours, three times a week.
On or about 24 August 2021, he was kidnapped by his girlfriend’s lover. He was held hostage, threatened, and hit across the face with a baseball bat. He managed to escape, but could not go to JHH, as those who assaulted him would find him there.
He drove to Port Macquarie [Base] Hospital.. He originally told them he had fallen down the stairs. The attending nurse suspected he had breached Covid travel restrictions and involved the police. He received a fine but did not tell them about the assault.
After his wounds were attended, he was re-admitted to Port Macquarie Base Hospital for dialysis. He had to advise them what had happened, or they would not take him as a patient. He was referred for CT of his brain, which revealed no further damage as a result of the assault. He did not involve the police or bring a police report, for fear of repercussions against his family in the Newcastle region.
After the accident, he had no capacity for employment until 28 January 2021 (this appears to be a typographical error for 2016). He had attempted work with Brendan Twist from 28 January 2016 to about 30 April 2016 but had not been able to return to work since.
His bank statements were attached to the s 78 notice. He provided the following commentary on them.
He had received $1,000 in a cheque on 3 February 2015, which he believed was the proceedings [sic] from his grandmother’s will. He had received a cash deposit from his stepmother on 30 July 2015.
Three payments from Newcastle Roofing in October 2015 related to work he had done with it at a property owned by Brendan, who was also co-owner of Simplicity Homes. He had done this work prior to working with Trent. He believed Newcastle Roofing was going out of business around the same time he suffered his accident, and it was a coincidence that was when he received payment from Brendan.
He deposited $500 cash on 27 October 2015. That was wages from Trent for work he had done.
On 29 October 2015, he received payment from Modern Roofing for $814.39. That was a payslip and related to outstanding work he had performed prior to ceasing employment.
In or about January 2016, he told “Robin” (Mr Robin Fridell) from Modern Roofing that there were outstanding invoices that had not been paid. He said he needed to send an invoice. This was why he received payments from Robin on 14 January 2016. He was not concurrently working for them at the time of his accident.
He received further payments from Modern Roofing in January and February 2016 as he had sold them some building materials, consisting of paint, tiles and flexi-paint. He was not working for them after the accident.
After the accident, he was assured by Trent that he did not need to fill out a claim form, as he would personally look after him. Trent asked him to sign a paper that indicated he conducted a pre-safety [sic] inspection of the property. This did not happen, and he never attended the work site. Once SafeWork made its findings in March 2016, Trent stopped talking to him.
After he ceased work with Simplicity Homes [sic] he did not bring a claim because he was told by the SafeWork investigator he did not have a claim. He had difficulty getting himself organised to make the claim due to his brain injury.
On or about 3 July 2018, he was encouraged by Nathan at Hunter Brain Clinic to bring a claim and Nathan contacted EML on his behalf.
The applicant’s next statement is dated 1 August 2022.
He disputed Trent’s evidence. He had never had a business name of Beau’s Roofing Repairs.
He did work with Centrepoint Roofing in 2014, and they trained him in the job. After he ceased there, he was on Centrelink. He then got a job with Modern Roofing and Newcastle Roofing. He stopped working with Modern Roofing as he had to hire their equipment, and it was costing too much. The work with Newcastle Roofing stopped because he had a falling out with the boss’s son, although this was later sorted out.
After he stopped work with Modern Roofing and Newcastle Roofing, his paint supplier, “Mark”, from Rite Grow Roof Restorations, gave Frank his number.
He was working exclusively for Trent, his father and brother. If he attempted to accept work from other persons, this would have upset his relationship with them, and he would not have received any more work. For that reason, he worked for nobody else.
The applicant’s final statement is dated 21 September 2022. He annexed remittance advices from Modern Roofing and provided an explanation of them. On discussion with his sister, he believed he had been confused as to the history surrounding his injury.
A few weeks before his injury, he was asked by Mark Marlo, owner of “Right Guy Roof Paint”, to help him move shop. Mr Marlo gave him 20 litre buckets of paint he did not need, as the original lids were black. This would cause a chemical reaction in the paint and create a skin. He could not sell them. If they were used, they would cause the paint machine to malfunction. He was given approximately 70 to 100 buckets.
He had strained the buckets of paint, got rid of the skin, and put them into a bucket with a proper lid, in his own time. He had developed a home-made device, using a fly screen, to remove the skin. This was done before his injury.
In approximately January 2016, he began to run out of money. He spoke to “Belinda” (Bell), manager at Modern Roofing, and tried to sell the paints. He wanted to sell all the paint at once to Modern Roofing, but they did not want to do this. They would ring him if they ran out of paint, rather than waiting for paint to be delivered from a factory.
He started to sell these paints to Belinda. She would ring and tell him the colour of the paints and how many buckets they needed. There are no written orders, and all the requests were done over the phone.
He sold these paints at approximately $110 per bucket for prime scaler, and the coloured paint for $148 per bucket. He believed he had more coloured paint.
The names on the remittance advices related to Modern Roofing’s customers. He did not know who they were and had never met them. Modern Roofing listed the name of the customer for their records.
He stopped selling paint when he ran out of stock. He did not have a long-term plan for this venture, as he did not think he could return to work. He thought he ran out of stock in June 2016.
He attempted to return to work with Newcastle Roofing in June 2016, not from January 2016 to April 2016. He believed he got this confused with the period he was selling paint. It was difficult to recall that far back, due to his head injury. He had to speak to his sister to clarify his post-injury work history.
He was told by Newcastle Plumbing (assumed to mean Newcastle Roofing) that he was employed by a “labour hire” and he thought he was told by Brendan to list the ABN he wrote on the invoices. He did not recall who Jamie Metcalfe was, but suspected he was one of the directors or employees of Newcastle Roofing.
He stopped working with Newcastle Roofing in March 2017. He felt he could not cope with climbing ladders. He made a further attempt to return to work in March 2018 but stopped all together in May 2018. He could not find suitable employment and applied for the Disability Support Pension.
In October 2021, he started working with Joshua David Hall, performing cleaning work. David is Belinda’s son, and operates his own business, spray cleaning driveways. He ceased working for David in January 2022, as he could not cope with the job.

Evidence of Trent Nathan Visscher

Mr Visscher’s statement is dated 17 August 2018.
He was the owner and operator of In Time Roofing, operating from an address in Pelican. He had owned and operated the business for around 14 years, as a sole trader.
He had known Beau Mowday/Beaudon Brown-Nolan for a few years. He had only known of him for about six months at the time of his accident. He knew him as a local roofer. He did not know him personally.
In Time Roofing operated in the Newcastle, Central Coast, Hunter and Port Stephens areas. He was the primary worker in the business. He had one sub-contractor, Mark Klime. He did not have a workers compensation policy, as “there’s only me basically”.

He was not a witness to the incident and was not on site. His first knowledge of it was when he received a call that afternoon from the homeowner. He had no direct contact with Beau that morning. He was due to attend the site that afternoon but did not get there.
He did not know what time Beau started or when the accident happened. All he knew was he had a fall, and he assumed it was on the ladder. He did not know whether the ladder was tied off, or how the securing point came to fail.
It was obvious Beau was not wearing a harness, or it was not yet anchored, because he had a fall. The normal process is to climb the ladder with the harness fitted, but not hooked into the lanyard. You then pull up a roof tile and attach the lanyard around a roof beam. You are then able to attach the harness to the lanyard, which is attached to a fixed point. In that way, you are safe from a fall.
The site is at Shelly Beach. He knew it was a two-storey house. He had been there to do the quote, and a risk assessment was completed.
As far as they were aware, the applicant had recovered and was getting back into work a few months later. He heard this from other roofers he was subcontracting to. He did not come back to work for “us”, but called at about Christmas 2017, asking if any work was available. They did not discuss the accident or his injuries. Business was slow, so he did not have any work.
He had had no further contact with Beau, but heard he was working for Hunter Roofing as recently as two weeks ago.
Mr Visscher was also asked a series of questions.
Beau was employed as a sub-contractor on the day of the accident, but this was only his second day of work. He started “with us” around one month before the accident. He had only ever worked for In Time Roofing on two non-consecutive days.
Beau was engaged to high pressure clean a roof, which is generally a one-day task. It was hoped he might end up doing more work at some point, but that was dependent on how happy he was with his workmanship and the workload.
The dates on which the applicant was sub-contracted to work were mutually agreed to work with both their schedules.

He had “In Time Roofing” T-shirts, and other items of clothing, but they were for him alone. Beau had his own business name.
As far as they were aware, Beau did not have any other workers, and it was expected he was the person to complete the work. He was paid $250 flat rate for the first day he worked and $350 for the second day, the day of his injury. The first payment was made into his account, and the second in cash. The pay was for the days’ tasks.
They had an ad in “Local Search”, and the job (assumed to be the job on which the applicant was injured) would have been picked up through Local Search Wyong.
“Yes, under $7,500” (assumed to refer to total wages paid). The total paid to Beau was $600, which was the total ever paid. Mark, their only other subcontractor, was paid $2,000 in 2015-2016. He was under the $7,500 threshold because he did 90% of the work himself. He did not engage sub-contractors on every job. 2015-2016 was the first year he started to use sub-contractors. Until then he did 100% of the work.
The job site determined where (the job was done) and they negotiated when, according to their and the homeowner’s schedules. He offered Beau the day’s work, which he was free to accept or decline. He worked his own hours. He was responsible for supplying his own protective gear, and his own equipment and tools.
He was contracted with the homeowner, and he sub-contracted the high pressure cleaning process to Beau. There were no other sub-contractors at the site. He had been told the applicant’s brother was there, but he had nothing to do with In Time Roofing. He did not know why he was there.
Beau had worked for roofers all over Newcastle and the Hunter. Hunter Roofing, Right Guy Restoration, Modern Roofing, Newcastle Roofing, and Millennium Roofing, that he could think of.
There were no materials to be supplied for high pressure cleaning. The applicant was engaged to high pressure clean a roof and did not need to be licensed for that. He did not know if he was a licensed roof restorer, although he had his own business name, “Beau’s Roof(ing) Repairs”. He said he was insured but was yet to provide his policy details. He said he had or previously had an ad in one of the local papers, but he did not know which one.
The applicant also did roof restoration and repairs. They had a short business relationship. He was instructed to provide invoices on his second day, but the accident occurred, and they were not provided.
He offered Beau the day’s work, which he was free to accept or decline. He had all the tools required for roof restoration.
There is in evidence an email from the respondent, sent by “Brooke” (Mr Visscher’s wife) to Ms Maria Kamel on 24 August 2022. Ms Kamel is employed by the respondent’s solicitors, and her email to the respondent attached a Notice to Produce, which is not in evidence, but is assumed to have been served by the applicant’s solicitors.
Ms Visscher advised that there was never any email or letter correspondence with the applicant. He “only worked for us as a subcontractor on a couple of occasions and all correspondence was by phone”. She was unsure if there were phone calls or texts, but it was most likely by phone.
Due to the incident being in 2014 [sic], they did not have anything dating back that far. No claim form was completed by them.
The last time her husband recalled speaking to the applicant was over the Christmas period in 2014 [sic], when he called seeking further work as a subcontractor.

Evidence of Levi Mowday

Mr Mowday’s first statement is dated 21 August 2018.
He was present on the day of the applicant’s fall from the ladder. He could not recall the day of the week. He recalled it was around lunch time, probably between 1.00pm and 2.00pm, but could not be more specific. He could not recall what time they arrived, but they had been there for a few hours at the time of the accident.
His understanding was that he was there to help Beau move his machinery. He did not know who Beau was working for.
He was meant to be going to work at a separate place that afternoon, but he was NOT working at the site where Beau was working and denied he was working for Beau or anyone else that day (capitalisation in original).
He did not receive any payment of any type and did not go there to receive payment or do any official work. Beau is his brother, he wanted a hand, so he went with him, “simple as that”.
The machinery was heavy, so he was there to help with lifting it from the back of the car and wheeling it to where Beau was working. The machinery was a high pressure water blaster. He did not recall exactly what else there was. He knew he had a paint gun but did not know if he was using it that day. He thought it was mainly the water blaster. He did not know who owned that.
He did not do anything more than assist with lifting the water blaster. He did not do any work on the roof. He did not even go up on the roof.
Beau got up on the roof via a ladder. It was a two-storey roof, a residential house. He did not know the owner’s name or the address. He knew it was in The Entrance.
He helped lift the water blaster but after that he was just waiting for Beau to finish, so he could help lift it back in. There wasn’t anyone else present. The homeowners were inside.
He got a bus to Beau’s house, and they drove from there. Beau was living in Rankin Park. He did not observe Beau consuming any alcohol, drugs, or medication on the morning of the incident. He was not suffering any injuries and not affected by anything.
He believed Beau had on a hi-vis shirt or singlet, which was what he usually seemed to wear. He had been on worksites with him before, but not a lot of the time, because he wasn’t doing anything much, wasn’t getting paid, and it was usually just a long, boring day.
He had been watching Beau. As far as he could see, he was doing his usual thing, cleaning the roof with the water blaster. He thought he was just cleaning that day, getting it ready for painting.
It was two storeys up. He remembered the police saying that Beau estimated he had fallen five metres, but he (Mr Mowday) could not say for sure. The ladder was at the front of the house, close to or on the concrete walkway that ran up to the front door. He did not see what tie there was on the ladder. He knew Beau used some sort of guard and ocky straps.
There was no one else on site and as far as he knew they hadn’t been there at all. He did not remember seeing them doing any paperwork. He did not know if Beau had been to any meetings before travelling to the worksite. That wasn’t his area to worry about.
Beau had on a black or blue strap harness. He believed it was his harness. He had an orange and a black one of similar design. He did not believe there was a problem with the harness. Beau did not say anything.
He heard a noise, looked across, and saw Beau was at the top of the ladder. It was tilting and falling backwards and then went sort of sideways. Beau was still holding onto the ladder. He landed on the concrete path on his shoulder and the back of his head. He ran over. Beau’s eyes were rolled back, and he was moaning.
He screamed Beau’s name. Either he ran to the door, or the elderly lady came out. They called 000. The ambulance, police, and people from WorkCover came. He also called family members and his work. Beau’s father later came to the site.
He spoke to the police and WorkCover. He thought they took a statement, which he was happy to have released. He did not have a copy. He did not like the WorkCover guy, who was trying to twist his words around.
He had not had any further dealings with Beau’s employer. He did not even know who he was, or the details of what Beau did. All he knew was that he was a roof cleaner and painter.
Mr Mowday has made a second statement, dated 1 April 2021.
On 10 November 2015, he accompanied his brother to Mr Visscher’s property at Shelly Beach. They collected a ladder, a bucket of flexi and steam cleaner machine.
On 11 November 2015, he accompanied his brother to the area of the accident. He was not paid a wage and his brother did not promise payment for his attendance. He helped take the steam cleaner out of the back of the truck. He estimated it weighed almost 100kg and it was impossible for somebody to move it by themself.
He was planning to leave after assisting his brother with getting the steam cleaner out of the car, but the accident happened, and he had to get help.

Evidence of Robert Brown

Mr Brown’s statement is dated 22 August 2018.
He is the applicant’s father. He was not a witness to the fall.
He was notified of the fall by either Hayley, the applicant’s sister, or Levi. He was given the address and drove straight there. The incident was in Shelly Beach. He had not been there before. He thought he arrived between 2.00pm and 4.00pm.
When he got there, he had to control Beau’s dog and look after the equipment. Beau had already been airlifted, and he had to wait for WorkCover to arrive.
He observed that the ladder Beau had been using was on the ground. There was also his vehicle, a high pressure washer, and his harness on the ground near his vehicle.
The WorkCover guy arrived not long after him. He does not know his name. He was very rude and abrupt. He was pretty upset. His son was on his way to hospital.
The WorkCover bloke was asking a lot of questions about the harness etc, things he didn’t know. He started to carry on about the hole in the roof. He said a storm was coming, so the homeowner said he would need to get someone to fix the roof.
He recalled the WorkCover bloke saying the fall would not have happened if Beau was harnessed to the roof, but he could see what happened. From memory, there were two ladders, the first to the roof section, then a second to the second storey. So, while Beau was going from the ground to the top, he would not be able to harness himself in while going up.
He felt that as Beau went from the first storey section towards the second ladder, the tiles had collapsed or moved, so that caused the ladder to move, and Beau fell with the ladder and his head hit the concrete.
He did not know if anyone saw it happen. No witnesses were identified to him at the scene. Levi was there, but he was in shock. Hayley was there too.
The WorkCover guy was “banging on” so he suggested he grab six tiles and fix the holes. He knew how it happened. He had to get onto the first section to repair the holes, replacing the broken tiles and throwing them down. The WorkCover guy left after that.
The ladder on the first storey section had gutter hooks. He could not say about the second ladder. It looked sturdy but he could not recall if it had gutter hooks. It was on the ground and looked OK, no damage. It was a single rise, aluminium ladder. He did not know who the equipment belonged to, but Beau did not own ladders that large.
He did not know who Beau was working for. All he knew was that there were three brothers (or two brothers and the father), who each had their own roofing companies, and he would do days here and there for them. He did not know the details of the arrangement.
They did not turn up on site and he had had only one contact with them since. One of them called to see how Beau was. He did not speak to him much.
The cause of the fall was the tiles collapsing under the ladder. He had not told anyone else this and was not required to make a statement to WorkCover. The WorkCover guy got him offside, so he wasn’t helping him out at all.

Evidence of Modern Roofing

Mr Robin Fridell produced documents to the Commission on behalf of Modern Roofing on 7 September 2021.
Mr Fridell advised in an email that the applicant worked for Modern Roofing as a sub-contractor to mid-2014, and from 16 December 2014, he worked as an employee, earning $1,015 gross. They did not have records dating back that far, apart from his group certificate, which they had sent to the respondent’s solicitors last month. He had ceased employment with them at the time of his injury and had never purchased any equipment from the company.
The group certificate to which Mr Fridell referred is in evidence. The period of the certificate is from 16 December 2014 to 30 June 2015. The payer is recorded as Simplicity Home Improvements.

SafeWork NSW Investigation

The accident was investigated by Senior Inspector Chris Henson. Some of the names in the report have been redacted. I have inserted them from the context of the information.
The report documented the workplace address as Shelly Beach. A 26-year-old male had fallen five metres from the roof while doing roof repairs.
The summary of events (I have not included all events) is as follows:
·        The address at Shelly Beach is a two-storey brick residential construction, with cement tile roof. The incident occurred in the front yard, facing Liddell Street.
·        An extension ladder was leaning against the gutter of the veranda roof. A broken tile was in approximately the centre of the roof, five rows above the footpath. There was a 20-litre plastic bucket and piece of rag on the roof.
·        A Toyota Landcruiser (registration redacted) was parked in the front yard. A high pressure water blaster was on the ground against the veranda. There was a harness and safety line in the left rear passenger seat.
·        The ground floor ladder was not tied. A second ladder lay on the ground behind the car, with bent left style. There were no ties/rope etc on the ladder, and no evidence it was tied off on the ground floor roof.
·        It appeared that the applicant arrived at approximately 7.30am with Mr Mowday. They began to set up for a roof restoration job, involving high pressure blasting of the roof, repointing the ridges, repair of valleys, and spraying with coloured paint. The roof appeared dry.
·        The applicant had been attempting to secure the second storey ladder to the upper roof gutter with Hockey [sic] straps or similar, when the roof tile under the left style of the ladder collapsed. The left style fell into the hole and the ladder fell sideways.
·        The applicant fell backwards, landing on the veranda roof, slid approximately 400mm and then fell to the concrete path, approximately 3.2m.
·        The injuries were multiple brain bleeds, fractured vertebrae in the neck and fractured skull.
·        There was no SWMS (Safe Work Method Statement) available, no toolbox (talk). There was a harness and safety line in the car. Access by ladder, with no visible means of tying it.
The “advice” was that the ladder had fallen with the worker, and minimal equipment was being used, as the site was being finished off. The worker was carrying a bucket of mortar up the ladder when the incident occurred.
Inspector Henson has recorded that the injured worker “is self-employed and takes contract work”; and “IP (injured person) sole trader on contract to Intime [sic] Roofing”. There were insufficient details for In Time Roofing.
Inspector Henson had contacted Mr Visscher of In Time Roofing. He had phoned the day before the incident to inform “them” (assumed to be the homeowners) that the applicant would be coming to do the job next day. The works performed were high-pressure water blasting. The documents included a copy of a quote from the respondent dated 28 April 2015.
ABN searches disclosed ABN for Mr Visscher (sole trader) and ABN for the applicant (sole trader), registered from 3 August 2015.
Inspector Henson recorded that In Time Roofing was engaged by Modern Group to attend the address at Shelly Beach to provide a quote for roof restoration work. Mr Visscher engaged the applicant to undertake the work on behalf of In Time Roofing. At the time of the incident, he was a sole trader, and approximately two weeks prior to the date of injury, had worked for wages for In Time Roofing. On the date of the injury, the applicant was being helped by Mr Mowday.
The allocated officer was Ms Joanne Walker
Ms Walker phoned the applicant on 2 February 2016 to discuss his recall of the incident and arrange a record of interview. He had no recall and when he tried to remember he had very severe headaches. He was willing to give a statement and provide information in regard to his work relationship with Mr Visscher.
The applicant had returned to selected duties and was carrying out supervisory work. He had not put in a claim for compensation. Ms Walker discussed him lodging a ULIS [sic] claim.
As Ms Walker was unable to “lock in a time and date for a face to face” record of interview with Mr Visscher she confirmed on 10 February 2016 that she would send him a s 155 (of the 1987 Act) notice and schedule of questions. This was sent by registered post on 18 February 2016.
Ms Walker left a phone message for Mr Visscher on 18 February 2016, informing him that the s 155 notice was due for compliance on 15 February 2016, and requesting that he contact her. She sent an SMS regarding the same issue on 25 February 2016.
The applicant phoned Ms Walker on 26 February 2016. He had received the s 155 notice and questions but was concerned that he could not answer questions about the incident, due to loss of memory. She advised him that he could answer that he had no memory due to his head injuries.
Ms Walker advised the applicant that the notice had been served on Mr Visscher, who had not requested an extension of time to comply or responded to her messages. He said he would call Mr Visscher and request him to contact her.
On 26 February 2016, Ms Walker contacted Mr Visscher regarding his non-compliance with the notice. She informed him it was a legal notice and there were penalties for non-compliance.
On 10 March 2016, Ms Walker recorded that she had received a 21-page schedule of answers and a site-specific risk assessment and safe work method statement for the address at Shelly Beach from Mr Visscher, with respect to the s 155 notice.
On 21 March 2016, Ms Walker recorded that she had received a registered post package from the applicant, with answers pursuant to the s 155 notice. Despite this, she recorded on 22 March 2016 that SafeWork had not received it, although Australia Post tracking indicated it had been delivered. Australia Post identified it had gone missing.
On 5 May 2016, the inspector’s recommendation was recorded as “no further action”.

Medical evidence

As the applicant is no longer claiming weekly benefits, it is unnecessary that I refer in detail to the medical evidence. However, some of the evidence is relevant to matters of history.

Hunter New England Local Health District

The applicant was admitted to JHH on 11 November 2015. In December 2015, he came under the care of Rankin Park Centre (RPC) and the Hunter Brain Injury Service (HBIS).
An Initial Rehabilitation Plan was prepared by Mr Haywood on 25 November 2015.
The history was recorded as the applicant having fallen four to five metres from a ladder on a roof on 11 November 2015. He was airlifted to JHH and transferred from the Emergency Department to the Intensive Care Unit.
The applicant was transferred from JHH to RPC on 18 November 2015, for rehabilitation. He was referred to HBIS by nursing staff on 23 November 2015. At the time of interview, on 25 November 2015, he was still in PTA (post-traumatic amnesia).
On 5 January 2016, Mr Guillaume Fayolle, clinical psychologist at HBIS, reported that the applicant suffered a traumatic brain injury on 11 November 2015. He was admitted to JHH and transferred to RPC on 18 November 2015 for in-patient rehabilitation. He was cleared from PTA on 30 November 2015, and discharged home on 4 December 2015.
On 17 February 2016, Dr Kellett, consultant in rehabilitation medicine, reported to Dr Graham Walter that the applicant had been back at work, part-time, for about three weeks. He was limiting his activities, including restriction of height work and pitch of roof.
Dr Susannah Ward, trainee in rehabilitation medicine, reported to Dr Walter on 7 November 2016 that the applicant ran his own business as a roofer. His girlfriend was managing the books, and since breaking (up with her) he had had difficulty managing his business finances.

The applicant’s Rehabilitation Case Closure Report, by Mr Haywood, is dated 11 October 2017. His engagement with HBIS was poor and he was uncontactable, so he was discharged from its services.
It was noted that the applicant had returned to his pre-injury employment as a roofing sub-contractor, and driving, following medical clearance.

SUBMISSIONS

The parties’ submissions have been recorded and I will therefore summarise them only briefly.

Applicant

The applicant acknowledged that he did not lodge a claim until 2018, so there are no contemporary statements. The only contemporaneous evidence is that of SafeWork. He was described in its report as a sole trader. Injury is not in issue.
The applicant referred to his first statement, in which he gave evidence about who he worked for. There will be some discrepancies in the dates on which he worked, but he submitted that not a lot should be made of that because of his memory loss.
The applicant referred to his evidence about “control” and supplying his own tools and materials. He submitted he was not entitled to sub-contract the work and his brother helped him with the lifting. His ad in the Newcastle Herald was over a year before the accident, and he was not doing work from that source at that time.
The applicant referred to his father’s evidence that he did not own ladders as large as those at the accident site. He submitted that his brother was mistaken about the address at which they collected the equipment but has given evidence about what they collected from the respondent.
The applicant submitted that one of the main reasons that liability had been disputed was that his bank statements suggested he was receiving payments from other sources. His evidence has dealt with this. He had given evidence about the payments from Modern Roofing for the supply of paint. He submitted that the payment advices attached to his statement dated 21 September 2022 are consistent with his evidence. He was not working for anyone but Trent, his father, or his brother.
The applicant submitted that his evidence is corroborated by Levi and his father. The respondent has made a broad assertion that he had worked for roofers all over Newcastle and the Hunter, without reference to a specific period. He referred to the applicant having a business name, but there is no evidence of this and no search in evidence. The applicant had conceded that he had taken out an ad, but he says this was years earlier.
The applicant submitted that his weaker case is that he was a direct employee. If it is accepted that he had to keep certain hours, that equipment was provided by his employer, and he was directed where to go, so that there was “control”, then he was a worker.
The applicant’s alternate case is that he was a deemed worker. He referred to the decision in Scerri v Cahill (1995) 14 NSWCCR 389 (Scerri), and the four elements discussed in that case. He submitted the value of the contract is not controversial, the respondent admits he was performing work for him, and the value of the work exceeded $10.
The applicant submitted that the question is whether the work he performed was part of a business he regularly carried on. He referred to what Dixon J said in Humberstone v Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389 (Humberstone).
The applicant submitted that is the case here, with relation to the respondent, his father, and his brother. He was only working for them. He could not go and get other jobs if he wanted. There is no evidence to the contrary from the respondent. He worked for all three. Until the date of the injury, he was not working for anyone else but the group. At that time, he was working for the respondent.
The applicant referred to Pasqua v Morelli Constructions Pty Ltd [2009] NSWWCCPD 153 (Pasqua). He submitted that, notwithstanding that he did not have some of the indicia, he came within Schedule 1. He was not in business regularly; he was only working for these three people.
The applicant finally submitted that I would prefer his evidence about the use of the equipment, which was corroborated by his brother and his father. He has explained that he was not working for other people. I would therefore find that he was a deemed worker.
In reply to the respondent, the applicant submitted that while the respondent submitted he did not have employees, he said he had a sub-contractor. As to why Levi would spend all day at the site, he is the applicant’s brother, and he needed him because of his kidney condition. He was “just a young kid”, who was prepared to go out for the day. The respondent had a problem going onto the roof, or he would have been there. He submitted that, given the nature of their relationship, it was not unreasonable for Levi to go there for no payment.
The applicant submitted that he could not provide word for word that he could only work for the applicant, his father and brother. He said a number of times that he had to work for them exclusively, or it would have upset the relationship. Exclusivity to one person is not required. He was not holding himself out as being in business at large.

Respondent

The respondent submitted that the nature of the arrangement between him and the applicant was informal. Searching the records does not give much insight into the terms of the agreement and its legal characterisation. The applicant was paid in cash and there is no documentation. We are “thrown back on” what the applicant and respondent say.
The respondent submitted that it would be difficult for the applicant to establish that he was a “worker”. The stronger part of his submissions was directed to “deemed worker”. On his own evidence, he regularly carried out roofing work before and after performing it for the respondent.
The respondent referred to the applicant’s bank records. He submitted they demonstrate funds received from five or six different entities in around 2015 and 2016, and all seem to involve roof restoration work.
The respondent submitted that the real question with which I must engage is, adding all the evidence before November 2015 and after the applicant’s rehabilitation, did the nature of his work change while he was engaged with the respondent?
The respondent’s evidence is that he had no employees and no workers compensation insurance for that reason. There are some slight inconsistencies, but on any view of the evidence, the applicant performed two or three jobs before the injury. This is only a fragment in time. It is for the applicant to establish he was a deemed worker. The respondent submitted I would have great difficulty in so finding.
The respondent submitted that one of the entitling features of the schedule is that the applicant neither employed anyone nor subcontracted the work. The involvement of Levi raises this issue. Levi has given a fragile and somewhat implausible account. He gave evidence that he was going to leave, then the accident happened, but the accident happened halfway through the day. There is no explanation of what he was doing the rest of the time. There is difficulty in accepting this was removed from the financial aspect.
The respondent submitted I would have difficulty accepting that the work was not carried out in the course of a business being carried on by the applicant; and difficulty accepting he had not subcontracted work to Levi, who was present on both 10 November 2015 and 11 November 2015. The applicant’s submissions made something of the fact that he was not permitted to subcontract the work. He does not say this was recorded or conveyed to him. It may just have been his impression. The engagement of Levi is inconsistent with it.
The respondent referred to the applicant’s evidence that he “felt he had no choice” but to work exclusively for the Visschers, for fear of losing his employment. Again, he does not say this was recorded or conveyed to him, and it may just have been his impression. The respondent conceded that the Commission is not bound by the rules of evidence, so the applicant’s evidence is admissible, but submitted it is not very helpful.
The respondent submitted that the applicant may have thought it was not a good idea to take other work. He would have me infer that he was prohibited from working for others, but he doesn’t say that. That would be a positive statement. He has had the opportunity to say it, guided by experienced lawyers, but he does not. It is no greater than his impression of what the situation may have been. It does not reach the height of representations between the parties.
The respondent submitted that the standard of the evidence is insufficient for the applicant to prove his case. He referred to the applicant’s evidence about the records of payments, and submitted it raises more questions than answers. It is unusual that he had three different employers simultaneously. That he was performing work interchangeably over the same period is more consistent with him regularly carrying on business than being a deemed worker.
The respondent accepted that, because the applicant ran a business in the past does not mean he can’t become a worker. He could change the character of his work practices. The respondent submitted that does not appear to be the case here. He was performing work turnabout for three people, versus a worker/deemed worker characterisation.
The respondent submitted that in support of him being a worker simpliciter, the applicant relied only on “control”. What was identified was that the respondent told him where to go. It is not a control test that goes back to cases like Zuijs v Wirth Brothers Pty Ltd [1955] HCA 73; (1955) 93 CLR 561. That test has to some extent fallen out of favour.
The respondent submitted that the applicant has failed to establish that he was a worker or deemed worker. The inconsistencies in his evidence may be explained by his very serious head injury. It is not a question of a moral assessment. It seems to be acknowledged that the applicant’s account is not as reliable as it might be, which the respondent submitted would give me pause.

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.”
Schedule 1, cl 2 of the 1998 Act provides:
“(1)    Where a contract—
(a)     to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor's own name, or under a business or firm name), or
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.
(3)     A person excluded from the definition of
‘worker’ in section 4 (1) because of paragraph (d) of that definition is not to be regarded as a worker under this clause.”
The applicant only faintly submitted that he was a worker, within the meaning of s 4 of the 1998 Act. His submissions were mainly directed to establishing that he was a deemed worker, within the meaning of Schedule 1 of the Act.
There is no contemporaneous evidence, apart from the SafeWork investigation and the medical evidence, the applicant having apparently made no claim for compensation until 2018. There was no written contract between the applicant and the respondent, the respondent no longer has records of any phone calls or text messages with the applicant, and to further add to the evidentiary issues, it is not in dispute that the applicant has sustained a serious head injury. His evidence is that his memory has been affected as a result. The applicant of course bears the onus.
The respondent submitted that the “control” test has to some extent fallen out of favour, and I accept that submission. In Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 (Stevens), the High Court did apply the control test, but it also set out other relevant indicia to be considered in determining the issue of “worker”.
These indicia included, but were not limited to:
·        The mode of remuneration.
·        The provision and maintenance of equipment.
·        The obligation to work.
·        The timetable of work and provision for holidays.
·        The deduction of income tax.
·        The right to delegate work.
·        The right to dismiss the person.
·        The right to dictate the hours of work, place of work, and the like.
·        The right to the exclusive services of the person engaged.
The High Court referred to the indicia test in Hollis v Vabu Pty Ltd [2011] HCA 44; (2001) 207 CLR 21 (Hollis). However, it held that it is the “totality” of the relationship that must be considered.
The High Court recently discussed both Stevens and Hollis in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 (CFMEU v Personnel Contracting). It confirmed that determining whether an employment relationship exists is more complex than “running down items on a checklist”.
Kiefel CJ, Keane and Edelman JJ said at [34]:
“In Stevens…and Hollis… it was said that the characterisation of a relationship as being either one of employment or one of principal and independent contractor is to be determined by reference to ’the totality of the relationship between the parties’. It was not suggested that this assessment should proceed as if the court is running down items on a checklist in order to determine a balance of ticks and crosses. It has never been suggested that the factors identified to be relevant are of equal weight in the characterisation of the relationship. Some understanding as to the relative significance of the various factors is desirable, both to minimise the extent to which application of the test may produce an impressionistic and subjective outcome on the one hand, and to avoid the injustice of a mechanistic checklist approach on the other.”
It was held in CFMEU v Personnel Contracting that, where there is a comprehensive written contract of employment, that should be the starting point in determining the relationship, rather than undertaking a balancing exercise.
In this matter, there is not only no written contract, comprehensive or otherwise, but there is no documentation of the relationship between the applicant and the respondent.
The evidence regarding the applicant’s status as a worker is limited.
The applicant stated that he used the respondent’s ladder because Mr Visscher’s ladder was longer. His father confirmed that he did not own ladders as large as the ladders he saw on the day of the injury.
The applicant conceded that he had his own tools, but said he had the equipment from when he was contracting with Modern Roofing. He was not required to use it when he performed work for the respondent. The respondent, Frank, and Troy provided equipment that he described as a harness, lanyard, bucket, trowel, cleaner and paint machine. He was carrying a bucket of flexi up the ladder when the injury occurred. It was supplied by the respondent.
According to the respondent, there were no “materials” required for high pressure cleaning. However, it is apparent that tools, as described by the applicant, would be required. Mr Visscher also stated that the applicant was responsible for providing his own protective gear (which I assume included the harness), equipment and tools.
The applicant stated that he had a harness with him when he climbed the ladder, although he was not wearing it when he fell. There is no evidence as to who provided the harness. The applicant has referred to “his” harness, but that may equally mean “the” harness.
Mr Visscher has not responded to the evidence of the applicant and Mr Mowday that they collected ladders and the pressure cleaning machine from his home on the day before the injury, or that he helped the other two men to load the cleaner into the applicant’s truck.
The applicant’s evidence is that he had never owned a pressure cleaner because they are expensive, and one reason why he ceased work with Modern Roofing was that he had to pay to use its equipment. That evidence appears plausible, and I accept that the respondent supplied the pressure cleaner. There is no explanation for the failure of Mr Visscher to respond to this evidence.
The applicant’s evidence is that the respondent provided him with a T-shirt that said, “In Time Roofing”. Mr Visscher has denied this. The only other person who has given relevant evidence is Mr Mowday, who stated that on the day of the injury, he thought the applicant was wearing his usual attire of a hi-vis shirt or singlet. That does not, of course, establish that the applicant did not have an In Time Roofing T-shirt, but only that he was probably not wearing it that day. I have not found it possible to resolve this issue on the evidence.
The applicant and Mr Visscher agree that the applicant was paid a flat rate per day, although the applicant stated he was paid $250 per day, and Mr Visscher stated he was paid $250 for the first day and $350 for the second. The respondent confirmed that the payments were for the days’ tasks, as did the applicant. The applicant was therefore not paid by the hour, but for a specific outcome. That is less consistent with an employer/employee relationship than payment at an agreed hourly rate, as is the fact that there were no set or scheduled hours.
There was no provision for sick leave or personal leave. The applicant’s evidence is that he assumed the respondent was withholding income tax. Mr Visscher has not directly addressed this issue but has given evidence that the total amount paid to the applicant was $600 (which is consistent with payment of $250 plus $350). I therefore accept that tax was not withheld. These indicia are inconsistent with an employer/employee relationship.
The applicant’s evidence is that he did not feel he could refuse work from any of the Visscher family, because then they might then stop giving him work.
As the respondent submitted, the only evidence about this is the applicant’s impression that it may have been the case. It is inconsistent with his evidence that he would hear about the work about three days before he was required. Having been given such short notice, it may have been expected that he may not be available and may have been engaged elsewhere. I do not accept that he was not able to refuse work, whatever his subjective belief may have been. The ability to refuse work is inconsistent with an employer/employee relationship.

While the respondent submitted that it may just have been the applicant’s impression that he was not entitled to sub-contract the work for the respondent, his evidence is to some extent confirmed by the respondent. Mr Visscher said as far as he was aware, the applicant did not have any workers, and it was expected that he would be the person who completed the work. That is consistent with an employer/employee relationship.
The applicant relied mainly on the respondent’s “control” of his work, in his submissions on the issue of “worker”. In Humberstone, Dixon J said in regard to the indicia of control:
“The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.” (At [18].)
The applicant relied mainly on the fact that the respondent told him where to go to perform the work, and what work he had to do. In my view, that is equally consistent with a principal/contractor relationship as with an employer/employee relationship. It is common ground that Mr Visscher was not on site when the applicant was injured, suggesting that the element of “control” was missing on that occasion, bearing in mind that the applicant had apparently only performed two jobs for the respondent.
The applicant’s evidence is that there were no set hours. The respondent does not know what time he started work on the day he was injured. His evidence is that the applicant worked his own hours. They were to some extent dependent on the homeowners’ schedules. That is more consistent with a principal/contractor relationship than that of employer/employee.
It does not appear that the respondent had the right to “dismiss” the applicant, or to his exclusive services. They both confirm that the applicant was also engaged at times by the respondent’s father and brother. Those indicia are inconsistent with an employer/employee relationship.
Having considered the totality of the evidence, and the above indicia, which do not in my view weigh on balance in favour of the applicant being a worker, I am not satisfied that the applicant was a “worker” within the meaning of s 4 of the 1998 Act.
The applicant relies with more confidence on the “deemed worker” provisions of Schedule 1, cl 2 of the 1998 Act.
Reynolds JA said in Higgins v North Coast Theatres & Drive-ins Pty Ltd [1974] NSWLR 9 (CA) at [13]; and on appeal sub nom Higgins v Jackson [1976] HCA 37; (1976) 135 CLR 174:
“Whether what is done by a contractor is a business and whether it is regularly carried on by him are, of course questions of fact”.
In Scerri, the Court of Appeal identified the elements to be proved under Schedule 1, cl 2 as:
(a)     The applicant was a party to a contract with the respondent to perform work.
(b)     That work exceeded $10 in value.
(c)     The work was not incidental to a trade or business regularly carried on by the applicant in his own name or under a business or firm name.
(d)     The applicant has neither sublet the contract nor employed workers in the performance of it.
In Djuric v Kia Ceilings Pty Ltd [2010] NSWWCCPD 20, Acting Deputy President Candy reviewed the authorities concerning Schedule 1, cl 2, and made the following observations:
·        A contractor’s status may change, and it is the status of the contractor at the time of the injury that is significant.
·        A person may regularly carry on a trade or business in his name although such a person only relies on word of mouth to obtain work.
·        A “trade or business” is an expression wide enough to encompass the work performed by a handyman or a supplier and installer of television antennae.
·        A period of work exclusively for one principal may indicate a contractor has ceased carrying on a trade or business, or to put it in an alternative way, the work performed is not “incidental” to a trade or business but has become the trade or business itself.
Candy ADP’s decision was confirmed by the Court of Appeal in Djuric v Kia Ceilings Pty Ltd [2011] NSWCA 34.
One of the decisions referred to by ADP Candy was Pasqua, on which the applicant relies. Mr Pasqua left the employ of Morelli Constructions to work independently as a carpenter. As work was “a little slow”, he returned to work for Morelli Constructions for a little under three months before sustaining an injury to his back. Mr Pasqua’s claim was unsuccessful, and he appealed against the arbitrator’s decision.
Deputy President Roche said: [at 53]:
“…the appropriate question in cases of this kind is whether or not the contractor was, at the relevant time, regularly carrying on a trade or business in his own name or under a business or firm name.”
Roche DP regarded the relevant time as being when the injury occurred. He continued [at 56]:
“It is submitted that it is not significant that Mr Pasqua had no marketing, signage or advertising because word of mouth recommendations carry as much or more weight with head contractors in the building industry as signage and advertisements. Whilst it is true that personal recommendations are important in all industries, the lack of marketing, signage and advertising is a further indicator, though not decisive, that Mr Pasqua was not regularly carrying on a trade or business during the relevant period.”
As regards the four elements of Schedule 1, cl 2, the respondent did not dispute that the applicant was a party to a contract with him to perform work. The evidence is consistent that the work exceeded $10 in value. The matters in dispute are whether the work was incidental to a trade or business carried on by the applicant, and whether he employed a worker, that is Mr Mowday, in the performance of the contract.
The applicant has given evidence that he was an employee of Centrepoint but contracted with Modern Roofing. He then met the respondent’s father and worked only for him and his family until the date of the accident. He had told Modern Roofing he would not be accepting any more contracts. He said he ran an ad in the Newcastle Herald for only two weeks, over a year before the accident occurred.
The applicant has provided an explanation of payments received from Modern Roofing in October and September 2015.
Mr Fridell of Modern Roofing advised the Commission that the applicant was initially a sub-contractor but was employed from 16 December 2014. That is contrary to the applicant’s evidence that he was never employed by Modern Roofing but tends to support his evidence that he had ceased being a contractor.
The applicant earnt only $1,015 as an employee of Modern Roofing, and it has produced only one group certificate, for the financial year ending 2015. Mr Fridell also stated that the applicant had ceased employment with Modern Roofing at the time he was injured.
The applicant has also provided an explanation for other payments revealed in his bank statements and on remittance advices from Modern Roofing. He said he was selling paint that he had obtained from Mr Marlo on an as needs basis to Modern Roofing. There is no evidence from either Mr Marlo or “Belinda” at Modern Roofing, which would have assisted. However, as I have noted, Mr Fridell’s evidence supports the applicant’s contention that the payments were not for work he had done for Modern Roofing, either as a contractor or an employee. I accept the applicant’s evidence.
The applicant denied that he ever had the business name “Beau’s Roof(ing) Repairs”, as stated by Mr Visscher. There is no evidence that he did. I accept that he bears the onus, but the only detail of this provided by Mr Visscher is that the applicant was known to him as a local roofer. As Roche DP held in Pasqua, the lack of marketing, signage and advertising is an indicator, although not decisive, that the applicant was not regularly carrying on a trade or business during the relevant period.
I do not believe that the fact that the applicant also performed work for the respondent’s father and brother at the time he performed work for the respondent is evidence that he was regularly carrying on a trade or business at the time. There was a family relationship between the three men. They were all in the same business. It is not unusual that they may recommend the applicant’s services to each other. His engagement with each was, it seems to me, in the nature of casual employment, as and when they may require his services.
The respondent submitted that Mr Mowday has given a somewhat implausible account of his involvement on the day of the injury. I do not accept that his account, although it contains some contradictions (for example, he said he and the applicant collected the equipment from the address where the injury occurred, which he described as Mr Visscher’s residence, and he did not refer to this in his first statement), is implausible. As I have noted, Mr Visscher has given no evidence about the collection of the equipment.
Mr Mowday has stated that he went to the job site to help his brother, who has a serious medical condition, to lift the equipment out of his vehicle. He was not paid and was not expecting to be paid. It does not appear to me to be inherently implausible that members of a family may be prepared to help each other out for no other reason than because they are family.
Mr Mowday did not see the applicant fall, and he said he did not go onto the roof. It appears that his involvement in the activity began and ended with his assistance with lifting the equipment. As the applicant submitted, when the injury occurred, he was “just a young kid” of 20. I accept his evidence and that of the applicant that he was not employed by the applicant but was merely helping a close family member who needed his assistance.
The evidence in this matter is lacking in some respects, perhaps due to the effluxion of time, or because the applicant has sustained a serious brain injury. However, having considered the evidence of, in particular, the applicant, Mr Visscher and Mr Mowday, I am satisfied that the applicant was a deemed worker of the respondent on 11 November 2015, when he sustained the injuries that are the subject of the claim.
The orders are as set out in the Certificate of Determination.

[2022] NSWPIC 576

19 October 2022