Peter John Mann and Christine Violet Seymour t/as Nimbin Crystal Tourist Park v Workers Compensation Nominal Insurer - [2024] NSWPICPD 4

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Peter John Mann and Christine Violet Seymour t/as Nimbin Crystal Tourist Park v Workers Compensation Nominal Insurer [2024] NSWPICPD 4
APPELLANTS:	Peter John Mann and Christine Violet Seymour t/as Nimbin Crystal Caravan Park
APPELLANTS’ INSURER:	Uninsured
FIRST RESPONDENT:	Workers Compensation Nominal Insurer
SECOND RESPONDENT:	Shaun Brittliff
FILE NUMBER:	A1-W2288/22
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	29 January 2024
ORDERS MADE ON APPEAL:	1. The Principal Member’s Certificate of Determination dated 22 December 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Employment – intention to create a legal relationship – Secretary, Department of Family andCommunity Services v Bee [2014] NSWWCCPD 66 applied – substantial contributing factor – s 9A of the Workers Compensation Act 1987 (the 1987 Act) – Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324 applied – calculation of pre-injury average weekly earnings for “short term” workers – clauses 4, 6 and 7 of Schedule 3 to the 1987 Act and reg 8F of the Workers Compensation Regulation 2016 – s 145 of the 1987 Act – onus of proof in respect of an employer’s liability to reimburse the Workers Compensation Nominal Insurer – Raniere Holdings Pty Ltd v Daley [2005] NSWCA 121 – acceptance and rejection of evidence – Devries v Australian National Railways Commission [1993] HCA 78; Jackson v McDonald’s Australia Ltd [2014] NSWCA 162 applied
HEARING:	On the papers
REPRESENTATION:	Appellants:
Mr P Macken, solicitor
Leigh Virtue & Associates
First Respondent:
Mr J Beran, counsel
Hall & Wilcox
Second Respondent:
Mr S Hickey, counsel
Phillip Watson Pty Ltd
DECISION UNDER APPEAL
PRINCIPAL MEMBER:	Ms J Bamber
DATE OF MEMBER’S DECISION:	22 December 2022

INTRODUCTION AND BACKGROUND

Mr Shaun Brittliff (the second respondent) suffered an injury on 23 October 2020 when he was bitten on the nose by a dog at a caravan park which was owned and operated by Peter John Mann and Christine Violet Seymour t/as Nimbin Crystal Tourist Park (the appellants). The second respondent alleged that he was employed by the appellants as a caretaker of the park. The appellants did not hold a workers compensation policy at that time. The second respondent therefore lodged a claim for workers compensation with the Workers Compensation Nominal Insurer (the Nominal Insurer), alleging physical and psychological injuries as a result of the incident. The Nominal Insurer accepted liability for the injury and paid weekly compensation and treatment expenses to the second respondent.
On 7 April 2022, the Nominal Insurer served on the appellants a notice issued pursuant to s 145 of the Workers Compensation Act 1987 (the 1987 Act) seeking reimbursement of compensation paid in respect of the second respondent’s claim in the amount of $62,315.61. The appellants commenced these proceedings in the Personal Injury Commission (the Commission) pursuant to s 145(3) of the 1987 Act, seeking a determination as to their liability for the payments made. The appellants:
(a)    denied having employed the second respondent;
(b)    denied that the second respondent was injured in the course of employment;
(c) denied that any employment was a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act;
(d)    disputed the extent of the second respondent’s incapacity for work, and
(e)    disputed the quantum of the weekly payments made.
The dispute proceeded to conciliation and arbitration before a Principal Member of the Commission, who determined that:
(a)    the second respondent was employed by the appellants;
(b)    the second respondent suffered injury to his nose and a psychological injury in the course of his employment;
(c) the second respondent’s employment was a substantial contributing factor to the employment pursuant to s 9A of the 1987 Act, and
(d)    the second respondent had no capacity for work and was entitled to weekly payments of compensation.
The Principal Member ordered that the appellants reimburse to the Nominal Insurer compensation which was slightly less than the amount paid by the Nominal Insurer to and on behalf of the second respondent.
The appellants appeal the decision.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
The appellants request an oral hearing on the basis that the transcript was not available at the time of lodging the appeal and that, in their view, an oral hearing is required because of the nature of the grounds of the appeal. The Nominal Insurer and the second respondent are of the view that the appeal can be determined on the basis of the documents and the parties’ submissions.
The appellants were given the opportunity to file submissions on receipt of the transcript and did so. The appellants did not lodge submissions in reply to the submissions made by the Nominal Insurer or the second respondent. The appellants do not explain why the grounds of appeal are of such a nature as to require oral submissions and the grounds of appeal do not raise any novel or unusual legal issues.
I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties, including those as to whether the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to subss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

THE EVIDENCE

The relevant statement evidence

Mr Peter Mann

Mr Peter Mann provided a statement dated 5 October 2021.[1] He advised that he was one of the lessees of the Nimbin Crystal Tourist Park, which was owned by Lismore Council, and he had been in that position for a period of twelve years. He said he was required to oversee the overall management of the park remotely, with an employed caretaker. He said the current caretaker was Mr Tony Teniswood.
[1] Miscellaneous Application (application), pp 9–13.
Mr Mann stated that the second respondent and his partner (Ms Alyssa Crossey) arrived as visitors to the park about three weeks prior to the incident on 23 October 2020. He said that, at that time, the second respondent and Ms Crossey and children had nowhere to live, so he offered them the caretaker’s cottage. He said that he advised Ms Crossey that she could work as a caretaker for a trial period of four to six weeks, working up to 20 hours per week. He said that he paid Ms Crossey $500 per week, which he paid directly into her bank account and the arrangement was made orally. He said that he explained the position to Ms Crossey. He advised that the second respondent was not present during that induction. He added that there were no arrangements to pay, or any payments made to, the second respondent. Mr Mann said that he did not observe the second respondent doing any duties in the park and Ms Crossey appeared to be performing the role. He said the role consisted of keeping the office open for 4 hours per day and cleaning any cabins or vans that were vacated, which was not overly physical or stressful work. Mr Mann added that he would bring in outside contractors to do most of the outside work.
Mr Mann advised that Ms Crossey told him on the day after the second respondent’s injury that the injury had occurred. He said that, following the injury, he had not spoken to the second respondent or received any communication from him, but Ms Crossey continued to manage the park for a period after the injury.
Mr Mann denied that the second respondent had ever worked for him, or assisted in the caretaker role, and as far as he was aware, the second respondent had never been observed performing any work in the park. He added that from 5 December 2020, he engaged another couple in the caretaker role.

Mr Anthony Teniswood

Mr Teniswood advised that he had arrived at the park with his family on 15 October 2020 and he and his wife took up the role of managing the park in early November 2020. He recalled that he had seen Ms Crossey in the office area and once spoke to her in the camp kitchen. He said he had seen a man called Glen, who he believed to be a maintenance man, and another called George who cleaned out the garbage bins, as well as a young tenant called Blaze who assisted George. Mr Teniswood observed that he had never seen or met the second respondent.[2]
[2] Statement dated 1 October 2021, application, pp 14–15.

Ms Cheryl Ann Benfell

Ms Benfell said she was the partner of Mr Mann and assisted him with the bookwork associated with the park. She stated that Ms Crossey was appointed manager of the park on a trial basis. She said that she was aware that Ms Crossey was paid $500 per week for 20 hours’ work and was provided with the manager’s residence, which included the supply of power and water. Ms Benfell stated that she met Ms Crossey about a week after the commencement of the trial but did not see or meet the second respondent. She asserted that Ms Crossey was the only person paid to manage the park at that time.[3]
[3] Statement dated 5 October 2021, application, pp 16–18.

Mr John Anderson

Mr John Anderson stated that he had lived at the Nimbin Crystal Tourist Park for ten years and maintained the swimming pool for Mr Mann. He said that he was present in October 2020 when Mr Mann interviewed Ms Crossey for the temporary position as the park manager. He confirmed that she was offered $500 per week for 20 hours of work, which included free accommodation, power and water supply. He said that he clearly recalled that there was no mention of the second respondent being included in the arrangement and he denied ever seeing the second respondent performing any work at the park. He described the second respondent as a “recluse”.[4]
[4] Statement dated 30 September 2021, application, pp 19–21.

Ms Dee Ducat

Ms Dee Ducat provided a statement dated 22 December 2020.[5] She advised that she had been a resident at the park for 12 months. She said that she had met the second respondent about two weeks prior to the injury and knew him as the partner of Ms Crossey, who was the trial manager or caretaker of the park. She stated that she had never seen the second respondent perform any management or maintenance work on the site. She described the circumstances surrounding the occurrence of the second respondent’s injury.
[5] Nominal Insurer’s reply to application (reply), pp 1–3.
Ms Ducat indicated that she was aware that the second respondent had a problem with alcohol as she would see him drinking on a daily basis.

The second respondent

The second respondent gave a statement signed on 21 December 2020.[6] He indicated that his partner was Ms Crossey. He asserted that at the time of his injury he was employed by the appellants as a co-manager and caretaker, together with Ms Crossey. He said that Ms Crossey had advised him a few days after they arrived at the park that Mr Mann and Ms Benfell had agreed for him and Ms Crossey to be caretakers of the park on a trial basis for six weeks and were to reside in the caretaker’s cottage. He recalled that they were to be paid $500 per week in total for both of them and the money was to be paid into Ms Crossey’s bank account. He further recalled that Ms Benfell gave him instructions as to what they were required to do, including lawn mowing, emptying the bins, cleaning the cabins and doing night-time security checks. He said that, despite only being required to work from 8 am to midday seven days per week, they actually worked 8 hours per day, working solidly, with Ms Crossey doing the bookwork and administrative tasks, while he would do the outside work.
[6] Nominal Insurer’s reply, pp 9–13.
The second respondent said that, immediately before the injury, they were doing a check of the park when he saw Mr Dylan Ducat (the son of Ms Ducat) driving into the park with his dog. The second respondent advised that Mr Ducat’s dog had earlier been involved in a nasty dog fight at the park, so he intended to inform Mr Ducat that the dog was not allowed in the park. He said that he approached Mr Ducat’s vehicle, and, when Mr Ducat lowered the window in order to talk to him, the dog lunged through the window and bit his nose.
The second respondent described the events that followed and the treatment he received at Nimbin Hospital, Lismore Base Hospital and Gold Coast Hospital. He said that when he returned to the park, he did not work, other than to walk with Ms Crossey at night to perform the security checks.
The second respondent described his ongoing physical and psychological disabilities and asserted that he was totally incapacitated for work.
The second respondent made a further statement dated 3 August 2021.[7] He confirmed that the evidence provided by Ms Crossey was accurate. He referred to the statement of Mr Mann, in which Mr Mann said that the second respondent and Ms Crossey had nowhere to live when they came to the park. He denied that evidence. He denied that it was only Ms Crossey who was offered the employment at the park and confirmed that they would both work eight hours a day every day of the week.
[7] Second respondent’s reply, pp 1–6.
The second respondent asserted that he and Ms Crossey were in the office when Mr Mann spoke to both of them about taking on the manager/caretaker role.
The second respondent described his ongoing symptoms and treatment.

Mr David Brittliff

Mr David Brittliff, the second respondent’s father, stated that he had arrived at the park about one week prior to the injury in order to assist the second respondent and Ms Crossey because they were struggling to manage their work tasks and look after their children. He said that he had observed the second respondent working around the park, cleaning toilets, working in the laundry, removing garbage and cleaning the cabins after they were vacated. He said that he would look after the children while Ms Crossey and the second respondent were doing the work in the park.[8]
[8] Statement dated 21 December 2020, Nominal Insurer’s reply, pp 14–16.
Mr Brittliff provided a supplementary statement, confirming his evidence that both Ms Crossey and the second respondent worked long hours attending to their duties at the park.[9]
[9] Statement dated 21 September 2021, Nominal Insurer’s reply, pp 42–43.

Ms Alyssa Crossey

Ms Crossey gave a statement signed on 21 December 2020.[10] She stated that, at the time of the second respondent’s injury, she and the second respondent were employed as co-caretakers of the park. She said the previous caretakers left about 4 days after she and the second respondent arrived at the park. She advised that she then spoke with Mr Mann, who agreed to appoint her and the second respondent as managers and caretakers of the park on a trial basis, working from 8 am to midday. Ms Crossey indicated that she and the second respondent were paid a total of $500 per week and in addition were provided with accommodation in the caretaker’s cottage. She asserted that the payments were paid in cash by Mr Mann up until the day before the injury because Mr Mann’s partner had not set up Ms Crossey’s banking details. She indicated that, thereafter, the payments were made by direct deposit into her account as she and the second respondent did not have a joint account, however the money was shared between them. She added that the arrangements with Mr Mann were all made verbally and there was no written contract.
[10] Nominal Insurer’s reply, pp 17–20.
Ms Crossey described the work performed by the second respondent, which included cleaning the cabins or vans, gardening, and emptying and washing the bins, which normally took him four hours per day. She said that they would each take turns in doing a security check at 10 pm every night. She described the sequence of events that led to the second respondent’s injury and provided an account of the medical treatment offered thereafter.
Ms Crossey made a second statement dated 3 August 2021.[11] She provided extensive details of the difficulties both she and the second respondent experienced while managing and caretaking the park, which she said at times would have 150 people staying, as well as other visitors to the park. The difficulties included abusive and intoxicated people, issues with dogs, excessive workload requiring them to work every day for the whole of the day and into the evenings, as well as having to evict people, perform cleaning of cabins for a quick turnaround in guests, and obtain police assistance when there were threats of violence.
[11] Nominal Insurer’s reply, pp 29–41.
Ms Crossey advised that she had made a claim for workers compensation in respect of a psychological injury caused by working for the appellants, which was being handled by the Nominal Insurer because Mr Mann had told her that neither she, nor the second respondent, was covered for workers compensation because they were on a trial period.
Ms Crossey made a further statement dated 26 May 2022.[12] She referred to the statement of Mr Teniswood who she said, to the best of her recollection, she had never met, had no recollection of him being a guest at the park and his name was a name that she would have remembered. She said that he had not commenced work at the park in November 2020 because she and the second respondent did not leave the park until 3 December 2020.
[12] Second respondent’s reply, pp 7–8.
Ms Crossey advised that the reference to the man “Glen” was a person employed by Mr Mann on his farm who only occasionally came to the park to do heavier work. She advised that the man called “George” took over care of the bins from the second respondent after the second respondent was injured. She added that “Blaze” was in fact a young boy named Blade, who was approximately 13 years of age and assisted George with the bins after the second respondent was injured.
Ms Crossey referred to the evidence provided by Ms Benfell. She advised that when they started work at the park, Ms Benfell had shown the second respondent how to do the housekeeping and linen for the cabins and vans, and the second respondent did that work. She confirmed that the second respondent’s description of the nature and extent of his duties was accurate.
Ms Crossey further referred to the statement of Mr Anderson, who she said was Mr Mann’s good friend. She said that he would do some work in the park in return for a reduction of his rent. She could not recall whether Mr Anderson was at the initial meeting with Mr Mann. She reiterated that the work she and the second respondent were engaged to do was work as a couple.

Kit and Nancy Peters

In a statement dated 24 May 2021,[13] Kit and Nancy Peters advised that they were staying at the park in October 2020 and had stayed there on two prior occasions. They advised that Ms Crossey appeared to be the overall manager, but the second respondent would generally work in the garden, do cleaning and manage the toilet block. They stated that, while the office was only open until midday, people would also call at the caretaker’s cottage, and they would also see both Ms Crossey and the second respondent doing checks around the park during the day and at night.
[13] Nominal Insurer’s reply, pp 21–23.

Ms Tilly Rhodes–Mayo

Ms Rhodes-Mayo stated that she was staying at the park when Ms Crossey and the second respondent were both working at the park. She said that she saw the second respondent performing work around the park mowing the lawns, gardening and doing cleaning work.[14]
[14] Statement dated 28 May 2021, Nominal Insurer’s reply, pp 24–25.

Ms Rebecca Bazzano

Ms Bazzano also stated that she had stayed at the park when Ms Crossey and the second respondent were managing the park, which she said was a 24-hour job. She confirmed that she had observed the second respondent working in the garden, attending the lawns and sometimes working in the office as well as helping with the bins and doing the rounds.[15]
[15] Statement dated 12 July 2021, Nominal Insurer’s reply, pp 26–28.

Mr Wayne Cooper

Mr Wayne Cooper gave a statement dated 20 June 2022.[16] He advised that he had known Ms Benfell and Mr Mann for a number of years, and they would give him work from time to time, including at the park, for which he would receive cash in hand. He said he lived at the park from April 2020 as a permanent resident. He recalled that Mr Mann had told him that he had asked Ms Crossey and the second respondent to take over management of the park.
[16] Second respondent’s Application to Admit Late Documents (AALD) dated 29 June 2022, pp 1–2.
Mr Cooper said that when he did work at the park, either the second respondent or Ms Crossey would tell him what was needed to be done and Ms Crossey would ensure that he was paid for it. He added that for the time that the second respondent and Ms Crossey were managing the park, he would observe them carrying out work at the park, at all hours of the day or night and over seven days per week.

The relevant documentary evidence

Diary extracts

The extracts from a diary commencing on 16 October 2020 and concluding on 25 October 2020 were in evidence.[17] The entries were clearly recorded by various people but referred to a number of difficulties in dealing with the park guests, and detailed some of the tasks undertaken to attend to matters in the park, including tasks undertaken by the second respondent. On 20 October an entry was made referring to a fight between two dogs, one of which belonged to Mr Dylan Ducat, Ms Ducat’s son. Notably, the entry referred to Ms Ducat and her son being told that the son’s dog was not allowed in the park again. A further entry on 23 October gave details of the attack on the second respondent by Mr Ducat’s dog and recorded again that the Ducats had been told that the dog was not allowed in the park.
[17] Nominal Insurer’s reply, pp 75–84.

Letter to icare from Mr John Gibson, solicitor

Mr John Gibson, solicitor, wrote to icare Workers Insurance on 30 November 2020 in response to enquiries about the second respondent’s employment. He advised that he acted for the appellants. He confirmed that the appellants did not hold a workers compensation policy of insurance. He stated that the appellants’ intention was to engage the second respondent as an independent contractor and expressed the view that it was uncertain whether the appellants “would fall into the definition of being an ‘Employer’.” Mr Gibson stated that the second respondent worked on a trial basis as a contractor in the role of the park care-taker, working 20 hours per week, but the actual hours worked were unknown. He said that the second respondent operated in partnership with the second respondent’s partner and payment was made into a partnership bank account. He said that free accommodation was also supplied.[18]
[18] Nominal Insurer’s reply, p 59.

Lismore Base Hospital notes

The clinical records from Lismore Base Hospital were in evidence.[19] On 6 November 2020 the following relevant history was recorded:
“Recently moved to the area with his family 6 weeks ago to manage the Nimbin Caravan Park (privately owned)
Not long after commencing management 2 dogs became involved in a fight on the property.
The owner who had been visiting another resident was requested not to bring the dog back into the park.
A couple of weeks ago the couple with their children were leaving to go [for] a walk when it was noticed that the gentleman who had been requested not to bring his dog back into the park, had returned and the dog was in his car.
[The second respondent] approached the man with his young daughter on his hip, when the man opened the window to his car the dog launched itself at [the second respondent] almost completely severing his nose from his face.
…
Both [the second respondent] and [Ms Crossey] are struggling as the owners are not wanting to take responsibility, they are stating that they are under a Trial Period and therefore it is being dealt with under indemnity insurance.”[20]
[19] Second respondent’s AALD dated 29 June 2022, pp 20–45.
[20] Second respondent’s AALD dated 29 June 2022, p 25.

New South Wales Police Force records

In the incident report recorded by the New South Wales Police, the second respondent’s occupation was listed as “unemployed.”[21]
[21] Appellants’ AALD dated 5 September 2022, p 19.
The New South Wales Police Force brief of evidence was before the Commission.[22] The Facts Sheet prepared by Constable Wilcock on 3 December 2020 recorded that the second respondent worked at the park as “the general manager/caretaker.” The history recorded was that Mr Ducat’s dog was involved in a fight with another dog a few days prior to the second respondent’s injury and that the second respondent said that he had advised Mr Ducat that the dog was no longer welcome at the park. The details included the fact that the second respondent was holding his daughter at the time of the injury and his intention was to approach Mr Ducat’s vehicle to check whether the dog was in the vehicle.[23]
[22] Second respondent’s AALD dated 29 June 2022, pp 3–19.
[23] Second respondent’s AALD dated 29 June 2022, pp 9–10.
The brief included statements dated 12 November 2020 from both the second respondent[24] and Ms Crossey.[25] The facts recorded in the Facts Sheet were consistent with those statements. In addition, it was recorded that the second respondent described himself as being the manager and caretaker of the park.
[24] Second respondent’s AALD dated 29 June 2022, p 13.
[25] Second respondent’s AALD dated 29 June 2022, pp 14–15.

Letter to icare from Mr Philip Watson, solicitor

Mr Philip Watson, the second respondent’s solicitor, wrote to icare on 2 September 2021 in relation to the calculation of the second respondent’s pre-injury average weekly earnings.[26] Mr Watson submitted that the second respondent had been employed for less than 4 weeks at the time of his injury and therefore cl 4 of Sch 3 to the 1987 Act applied, that is, in accordance with the appropriate industrial Award. Mr Watson referred to a decision made in the Fair Work Commission in relation to Ms Crossey’s employment with the appellants, which he said determined that the appropriate Award was the Hospitality Industry (General) Award 2020, wage level 2. He set out the hourly rates for weekdays, weekends and overtime.
[26] Nominal Insurer’s reply, pp 11–12.

LEGISLATION

Section 4 of the 1987 Act relevantly defines injury as:
“Definition of ‘injury’
In this Act:
injury
(a) means personal injury arising out of or in the course of employment,
…”.
Section 4(1) of the 1998 Act relevantly defines “worker” as follows:
“(1) In this Act—
...
workermeans 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).”
Section 9A of the 1987 Act requires the employment to be a substantial contributing factor to the injury. The parts of the section relevant to this appeal provide:
“9A   No compensation payable unless employment substantial contributing factor to injury
(1)    No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note—
In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)     The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c)the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f)the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—
(a)the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
…”.
The following clauses of Sch 3 to the 1987 Act are relevant to the Principal Member’s determination and the issues on appeal:
“4     Pre-injury average weekly earnings for short-term workers
(1)     If, at the time of the injury, the injured worker had been continuously employed in employment for less than 4 weeks, the pre-injury average weekly earnings in relation to the worker may be calculated having regard to the weekly average of the earnings that the worker could reasonably have been expected to have earned in the employment, but for the injury, during the period of 52 weeks after the injury.
(2)     The regulations may make provision for the matters to be taken into account for the purposes of determining the earnings that the worker could reasonably have been expected to have earned in the employment, but for the injury, during the period of 52 weeks after the injury.”
And:
“6     Meaning of ‘earnings’
(1)     The earnings received by a worker in respect of a week means the amount that is the income of the worker received by the worker for work performed in any employment during the week.
(2)     The income of a worker does not include—
(a)…
(b)the monetary value of any non-monetary benefit provided to the worker for the performance of work by the worker, or
(c)…
(d)…
(3)     However, the monetary value of a non-monetary benefit of a worker is to be included as part of the income of the worker for the purposes of the calculation of the weekly payments of compensation payable to the worker if the worker is not entitled to the use of the benefit.
(4)     …”.
And:
“7     Monetary value of non-monetary benefits
(1)     The monetary value of a non-monetary benefit in respect of a week is—
(a)…
(b)in the case of a non-monetary benefit that is not a fringe benefit or is otherwise not subject to fringe benefits tax, the amount that would reasonably be payable for that benefit (having regard to any matter specified by the Workers Compensation Guidelines).”
Regulation 8F of the Workers Compensation Regulation 2016 (the 2016 Regulation) is also relevant to the calculation of the second respondent’s earnings. It provides:
“8F    Pre-injury average weekly earnings for short-term workers—Schedule 3, clause 4(2) of 1987 Act
(1)     In determining the earnings that a worker could reasonably have been expected to have earned in employment for the purposes of clause 4(1) of Schedule 3 to the 1987 Act, the following matters are to be taken into account—
(a)any contract of employment made before the date of the injury,
(b)any award or agreement relating to the employment,
(c)any hours worked or earnings received by the worker during the period of 52 weeks before the injury.
(2)     If the consideration of those matters does not reasonably assist in determining the earnings that the worker could reasonably have been expected to have earned in the employment, the earnings are to be determined by having regard to the average weekly amount earned during the period of 52 weeks before the injury by other persons for the performance of similar work as the worker (whether or not with the worker’s employer).”
Section 145 of the 1987 Act provides for reimbursement to the Nominal Insurer by the uninsured employer in respect of compensation paid to an injured worker by the Nominal Insurer as follows:
“145 Employer or insurer to reimburse Insurance Fund
(cf former s 18C (21)–(26))
(1)     The Nominal Insurer may serve on a person who, in the opinion of the Nominal Insurer, was—
(a)in respect of an injured worker to or in respect of whom a payment has been made by the Nominal Insurer in respect of a claim under this Division, an employer at the relevant time, or
(b)an insurer under this Act of such an employer,
a notice requiring that person, within a period specified in the notice, to reimburse the Insurance Fund an amount (not being an amount exceeding the amount of the payment made) specified in the notice.
(2)     …
(3)     A person on whom a notice has been served under subsection (1) in respect of an injured worker may, within the period specified in the notice, apply to the Commission for a determination as to the person’s liability in respect of the payment concerned.
(4)     The Commission may hear any such application and may—
(a)make such determination in relation to the application, and
(b)make such awards or orders as to the payment of compensation under this Act to or in respect of the injured worker concerned,
as the Commission thinks fit.
(4A) …
(5)     In any proceedings under subsection (4), a certificate executed by the Nominal Insurer and certifying that—
(a)the payments specified in the certificate were paid to or in respect of an injured worker named in the certificate, and
(b)a person named in the certificate was, in the opinion of the Nominal Insurer, liable at the relevant time to pay to or in respect of the injured worker compensation under this Act or work injury damages,
is (without proof of its execution by the Nominal Insurer) admissible in evidence in any proceedings and is evidence of the matters stated in the certificate.”

THE PRINCIPAL MEMBER’S REASONS

The Principal Member summarised the evidence and the submissions of the parties, including the appellants’ submissions that there was no contract of service with the second respondent, no intention to enter into a legal relationship and that the second respondent did not carry out any work in the park. She noted that there was a significant issue raised in relation to whether there was a contract of service between the appellants and the second respondent. She discussed the relevant legal principles and applicable authorities.
The Principal Member accepted the second respondent’s submission that the evidence, particularly that of Mr Teniswood, supported the conclusion that the appellants’ usual practice was to hire a couple to perform the work, although that of itself was not determinative. The Principal Member pointed to the second respondent’s submission that the contemporaneous evidence from Mr Gibson, solicitor, disclosed that it was the intention that the second respondent and Ms Crossey were both engaged to perform the work, albeit as independent contractors on a work trial. She accepted that the submission had force.
The Principal Member referred to the appellants’ submission that:
(a)    the second respondent was carrying his daughter at the time of the incident;
(b)    he was intending to go with the family to pick mulberries;
(c)    Mr Ducat was described in the Lismore Base Hospital notes as the second respondent’s friend, and
(d)    therefore the second respondent was not performing any work at the time of the of the incident.
The Principal Member considered it of no significance that the second respondent was carrying his daughter at the time. She rejected the submission that the second respondent would not have let Mr Ducat drive him to hospital if they had not been friends. The Principal Member also rejected the submission made by the appellants that the evidence from their witnesses showed that the second respondent did not work around the park. She identified the inconsistencies in that evidence and considered that Mr Teniswood was not a truly independent witness because he and his wife were engaged as the subsequent managers of the park, and Mr Teniswood was reliant upon the appellants for his job.
The Principal Member further referred to the appellants’ submission that the police records recorded that the second respondent was unemployed. She noted, however, that elsewhere in the police records it was recorded that the second respondent was a caretaker of the park, and that the injury occurred when the second respondent walked to Mr Ducat’s car to check whether the dog was in the vehicle. The Principal Member said that, in any event, the letter from Mr Gibson was objective evidence that the appellants intended to enter into legal relations with the second respondent.
The Principal Member referred to the entry in the Lismore Base Hospital records dated 6 November 2020 that noted that the owners of the park did not want to accept responsibility for the injury and that, because the second respondent and Ms Crossey were on a work trial, the claim would be dealt with by indemnity insurance. The Principal Member considered that this evidence was consistent with that of Ms Crossey. She rejected the submission that the receipt of a parenting allowance by the second respondent was inconsistent with the second respondent being in an employment relationship, because a person could be in receipt of such a payment even though they were employed, which was dependent upon the amount the person earned.
The Principal Member noted the submissions made by the appellants in respect of the inconsistencies in the evidence. She concluded that all of the witness statements needed to be treated with caution because of those inconsistencies, and proceeded to weigh up the available objective evidence, including the diary entries and the medical certificates issued.
The Principal Member turned to the issue of whether the second respondent was a ‘worker’ within the meaning of the 1998 Act. She observed that it was most likely that the second respondent was not present when Ms Crossey initially met with Mr Mann. She accepted, however, that Ms Crossey told Mr Mann that she would need assistance from the second respondent and that Mr Mann advised that Ms Crossey and the second respondent could be co-caretakers. The Principal Member indicated that such a finding was consistent with the fact that the caretakers before and after Ms Crossey and the second respondent both consisted of couples. The Principal Member concluded that Mr Mann was lying when he said that he did not engage both Ms Crossey and the second respondent to manage the park and that the reason for lying was that the appellants did not have workers compensation insurance. She considered that her conclusion was supported by the letter from Mr Gibson, who indicated that he acted for the appellants and the content of the letter was self-explanatory. She explained that, when read as a whole, the letter was objective evidence that the appellants intended to enter into legal relations. The Principal Member added that Mr Mann’s evidence did not raise any issue that the matters referred to by Mr Gibson were not consistent with the instructions provided to Mr Gibson. She referred to the details provided in the letter as to the engagement being for a trial period, that the actual hours worked were unknown and that both the second respondent and Ms Crossey performed the work.

The Principal Member observed that the fact that the work was for a trial period did not preclude the existence of an employer/employee relationship. She further observed that it was not necessary to determine the issue of ‘worker’ by resolving the conflicts in the statement evidence. She said that this was because the information contained in Mr Gibson’s letter was consistent with the Lismore Base Hospital notes recorded on 6 November 2020 and with the evidence provided to the police by the second respondent on 12 November 2020, which she described as “reasonably contemporaneous.”[27]
[27] Mann & Seymour t/as Nimbin Crystal Tourist Park v Workers Compensation Nominal Insurer (iCare) & Ors [2022] NSWPIC 739 (reasons), [120].
The Principal Member concluded that, for all of those reasons, she was satisfied that there was an intention to enter into a contract of service and that the second respondent was a ‘worker’ within the meaning of the 1998 Act.
The Principal Member proceeded to determine the issue of whether the second respondent was in the course of his employment when he was injured. She noted the appellants’ submissions that the injury occurred outside of the time frame of 8 am to midday, that the second respondent was holding his young daughter and his purpose was to go and collect mulberries. She pointed out, however, that the appellants had ignored the evidence that the second respondent approached Mr Ducat’s car specifically to remind him that the dog was not permitted in the park, and that, in accordance with relevant authorities, there may be a dual purpose in respect of the action being performed. The Principal Member considered that the fact that Ms Crossey walked in a different direction when the second respondent approached Mr Ducat’s car was also relevant.
The Principal Member concluded that she was satisfied that the second respondent was in the course of his employment when he approached Mr Ducat’s car and, in any event, the injury arose out of his employment because he was furthering the interests of the park by preventing the dog from attending the premises. The Principal Member observed that the work in the park where the second respondent lived was not in the nature of the structured work that one would expect in an office. She said that the evidence showed that the second respondent and Ms Crossey performed numerous tasks, such as maintaining discipline and calling the police, outside of the hours between 8 am and midday.
The Principal Member accepted that the requirement that the employment be a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act was satisfied in the context of the second respondent living in the park and being ‘on call.’
The Principal Member turned to the question of the second respondent’s entitlement to weekly payments of compensation. She referred to the medical evidence that certified that the second respondent was not only incapacitated for work because of his physical injury but also because of the psychological consequences of the trauma. After taking those matters into account, she was satisfied that the second respondent had no capacity for work in suitable employment and had no current work capacity. She noted that there was an issue as to how the second respondent’s pre-injury average weekly earnings were to be calculated and that the appellants submitted that the value of the accommodation would be in the arena of $250 per week, which should be split between the second respondent and Ms Crossey. The Principal Member added that electricity and water usage was also provided for free.
The Principal Member noted that the second respondent was not entitled to those benefits after the employment was terminated. She referred to the Nominal Insurer’s submission that cl 6 of Sch 3 to the 1987 Act provided that the monetary value of a non-monetary benefit was to be included as part of the income of a worker if the worker was not entitled to the benefit. She noted that cl 7 of Sch 3 provided for the manner in which the value of the non-monetary benefit should be calculated. She identified the benefit as the provision of accommodation, electricity and water. The Principal Member observed that the onus rested upon the appellants in respect of the challenge to the s 145 notice issued by the Nominal Insurer and the appellants called no evidence as to the calculation of the benefit of the accommodation. She said that, in any event, the appellants put forward a figure of $200, which was equivalent to the figure of $199.46 submitted by the Nominal Insurer.
The Principal Member also referred to the Nominal Insurer’s submission that the second respondent was a short-term worker within the meaning of regulation 8F of the 2016 Regulation. She reproduced the regulation and observed that it was consistent with the submission made by the second respondent that in the circumstances, the Commission can apply the award relevant to the second respondent’s employment. The Principal Member noted that the Nominal Insurer submitted that the award for a manager of a hotel was $24.81 per hour, exclusive of overtime or shift allowance, which equated to $496.20 per week for 20 hours’ work and $992.40 for 40 hours’ work per week, on top of which should be added $199.46 for provision of a shared room.
The Principal Member said that, in the letter from the second respondent’s solicitor to the Nominal Insurer, the solicitor referred to cl 4 of Sch 3 to the 1987 Act, which applies in respect of a period of employment of less than 4 weeks and allows for the average weekly earnings that a worker could reasonably have expected to earn in the 52 weeks after the injury. She noted that the solicitor referred to the Hospitality Industry (General) Award 2020, which allowed a flat rate of $21.19 per week to which additional amounts would be added for overtime or weekend work. The Principal Member detailed the submissions made by the appellants that the second respondent’s earnings were nil, or the second respondent’s hours were four hours per day, that it was not appropriate to adopt the hourly rate for a hotel manager and that the accommodation was provided to Ms Crossey. She concluded that, on the basis of Ms Crossey’s evidence that the second respondent worked most mornings, she was satisfied that he worked 28 hours per week, including 4 hours on Saturday and 4 hours on Sunday. She accepted that the appropriate award was the Hospitality Industry (General) Award 2020, which, after applying the additional allowances for working Saturdays and Sundays, amounted to $668.32 per week, plus the allowance for accommodation of $199.46. She determined that the total pre-injury average weekly earnings figure was $867.78. Applying ss 36 and 37 of the 1987 Act, the Principal Member determined that the weekly payment amount during the first 13 weeks of incapacity was $824.39 and thereafter $694.22 per week. She calculated that the total payments amounted to $54,452.93, which was slightly less than the amount paid by the Nominal Insurer but nonetheless was the amount repayable to the Nominal Insurer.
The Certificate of Determination issued on 22 December 2022 records:
“The Commission determines:
1. On 23 October 2020 [the second respondent] was a worker employed by [the appellants].
2. Pursuant to s 4(a) of the Workers Compensation Act 1987 [the second respondent] sustained an avulsion injury to his nose and psychological injury as a result of a dog attack in the course of his employment with [the appellants] on 23 October 2020.
3. Pursuant to s 9A of the Workers Compensation Act 1987 [the second respondent’s] employment with the [appellants] was a substantial contributing factor to his injury.
4. At all relevant times [the appellants] did not have a policy of workers compensation insurance.
5. Pursuant to s 145(4) of the Workers Compensation Act 1987 [the appellants] are to reimburse the Workers Compensation Nominal Insurer the following amounts:
(a) $6,024 in relation to the medical expenses paid to or on behalf of [the second respondent]; and
(b)$54,452.93 for weekly compensation payments made to or on behalf of the second respondent].”

GROUNDS OF APPEAL

The appellants foreshadowed in their appeal that there may be a further ground of appeal (Ground G) brought following receipt of the transcript, a practice that should not be adopted. The appellants filed submissions following receipt of the transcript but did not raise the further ground of appeal. The grounds brought by the appellants are therefore as follows:
(a)    Ground A: Error of fact and law in determining the issue of the employment of the second respondent;
(b)    Ground B: Error of fact in determining that the second respondent was injured in the course of his employment;
(c)    Ground C: Error of fact and law in determining that the employment was a substantial contributing factor to the injury;
(d)    Ground D: Error of fact and law in determining the second respondent’s pre-injury average weekly earnings;
(e)    Ground E: Error of law in determining the matter on a basis not put by or to the parties, and
(f)    Ground F: Error of law in considering that the appellants bore the onus of proof in respect of the application.

SUBMISSIONS

As to Ground A

The appellants’ submissions

The appellants submit that a determination of whether the second respondent was employed by the appellants required consideration of whether a contract of service or to perform work existed between the appellants and the second respondent, relying on Maatta v Owen Dwyer t/as Owen Dwyer Builders[28] as authority for that proposition. The appellants say that such a consideration requires an evaluation of whether there was an intention to create a legal relationship, which is an essential element of a contract. The appellants assert that the following evidence was against such a finding:
(a)    the only conversation in relation to the engagement to carry out employment was with Ms Crossey, a conversation during which the second respondent was not present;
(b)    no payment of any kind was paid to the second respondent, and the only reason the second respondent was able to reside in the cottage was because he was Ms Crossey’s partner, and
(c)    the second respondent was not engaged in any induction of any kind or given any direction to carry out any work at all. In fact, the appellants’ evidence was that the second respondent was not at any time seen to engage in any employment.
[28] [2022] NSWPICPD 18 (Maatta).
The appellants assert that it is common ground that there is no direct evidence from the appellants or from the second respondent as to any interaction that might suggest an intention to create a legal relationship. The appellants submit that the only conversation relied upon by the second respondent was a conversation between himself and Ms Crossey. The appellants contend that, even if it is accepted that such a conversation took place between Ms Crossey and the second respondent (which would be evidence of an employment relationship between the second respondent and Ms Crossey), it cannot be evidence of an intention to create a legal relationship between the appellants and the second respondent.
The appellants submit that, in circumstances where there is no interaction of any kind between the appellants and the second respondent, no consideration paid to the second respondent, and no induction or instruction given by the appellants to the second respondent, it could not be inferred that there was an intention to create a legal relationship.
In their response following receipt of the transcript, the appellants submit that the second respondent properly conceded that he was not present when the appellants offered employment to Ms Crossey and there could be no suggestion that the payment of $500 was paid to anyone other than Ms Crossey.

The Nominal Insurer’s submissions

The Nominal Insurer points out that the Principal Member spent considerable time dealing with the evidence before making her determination that, on the basis of objective evidence, Mr Mann was lying. The Nominal Insurer points out that the evidence relied upon by the Principal Member in concluding that Mr Mann was a liar has not been challenged in the appeal.
The Nominal Insurer submits that, in accordance with s 352(5) of the 1998 Act, an appeal is not a review or rehearing and, applying the principles discussed by Roche DP in Raulston v Toll Pty Ltd,[29] the appellants are required to establish that there was “incontrovertible evidence” contrary to the Principal Member’s finding in relation to the credit of Mr Mann, or that the Principal Member’s decision was “glaringly improbable.”
[29] [2011] NSWWCCPD 25 (Raulston).
The Nominal Insurer says that the letter from a legal representative against the appellants’ interests and presumably in accordance with the appellants’ instructions, was an admission of an employment relationship. The Nominal Insurer says that contrary to the appellants’ submission, it constitutes direct evidence of a legal relationship between the appellants and the second respondent.
The Nominal Insurer submits that the Principal Member addressed Maatta and determined that the parties had entered into legal relations, so that there was no error of law.

The second respondent’s submissions

The second respondent points to the Principal Member’s various findings of fact.
The second respondent submits that the Principal Member analysed the evidence and provided reasons for concluding that the second respondent was a worker and for rejecting the credibility of Mr Mann. The second respondent identifies the following findings of fact:
(a)    the agreement included rent free accommodation with utilities included;
(b)    the amount of $500 per week was not determinative;
(c)    the distinct pattern of practice by the appellants was that of hiring two people to undertake the role of park managers;
(d)    the second respondent and his partner were engaged on the basis of a work trial;
(e)    Mr Gibson’s letter was self-explanatory and was objective evidence that Mr Mann intended to enter into legal relations with the second respondent;
(f)    the NSW Police evidence recorded that the second respondent was the caretaker of the park;
(g)    the appellants’ assertion that the second respondent was not in the course of employment when he was bitten was inconsistent with the diary entry on 20 October 2020 and with Ms Crossey’s evidence about the dog being banned from the park, and that the second respondent’s various duties included checking the park;
(h)    Mr Mann was lying because his evidence was inconsistent with that of Mr Gibson, the appellants’ solicitor at the time, and
(i)    Ms Crossey’s evidence that Mr Mann advised her that he did not have workers compensation insurance because she and the second respondent were on a work trial was consistent with the entry in the Lismore Base Hospital notes recorded on 6 November 2020.
The second respondent submits that it was clear that the Principal Member rejected Mr Mann’s evidence on the basis of lack of credibility, and particularly in respect of the appellants’ failure to address the matters referred to by Mr Gibson in his more contemporaneous letter. The second respondent submits that Mr Mann’s failure to explain his “about face” in relation to the position taken in the letter compelled the Principal Member to conclude that Mr Mann’s evidence was impugned. The second respondent asserts that this ground of appeal should fail.

As to Grounds B and C

The appellants’ submissions

The appellants assert error on the part of the Principal Member in respect of her findings that the second respondent was injured in the course of his employment and that his employment was a substantial contributing factor to the injury. The appellants say that, even if the second respondent was employed by the appellants, the evidence does not support those findings.
The appellants submit that it was common ground that the working hours were from 8 am to midday and the injury occurred at 4 pm, when the second respondent was on his way to pick mulberries with his daughter, which was not a part of his duties. The appellants also refer to the hospital notes that recorded the person driving the vehicle with the dog was a friend, which was uncontradicted evidence and consistent with the second respondent’s daughter having waved to the driver. The appellants submit that the activity was not one that fell within the course of the second respondent’s employment and his employment was not a substantial contributing factor.
The appellants submit that the injury would have occurred, whether or not the second respondent was employed. The appellants assert that s 9A of the 1987 Act cannot be satisfied.

The Nominal Insurer’s submissions

The Nominal Insurer submits that the appellants are simply re-arguing their case despite the Principal Member having addressed the arguments in her determination. The Nominal Insurer points out that the Principal Member made a finding of fact that the purpose of the second respondent approaching the vehicle was to inform the driver that he was not to bring the dog onto the park premises. The Nominal Insurer says that the appellants do not challenge that finding as being “glaringly improbable” but merely suggest that some other evidence should be preferred, which is insufficient to disturb the Principal Member’s finding.
The Nominal Insurer asserts that the Principal Member was correct to observe that the second respondent was required to perform tasks as they arose, which meant that the time the injury occurred was not relevant to the application of s 9A, particularly when the purpose of approaching the vehicle was taken into account. The Nominal Insurer contends that, when considering the factors set out in s 9A(2), there is no support for the notion that s 9A was not satisfied.

The second respondent’s submissions

In respect of Ground B of the appeal, the second respondent refers to the Principal Member’s observation that the second respondent performed a variety of tasks as needed and that the purpose of approaching the vehicle was in accordance with the second respondent’s duties as a park manager. The second respondent quotes the passage from the Principal Member’s reasons at [125] for concluding that the employment was not confined to strict hours of work.
The second respondent submits that all of the evidence accepted by the Principal Member supports her conclusion that, in a temporal sense, the second respondent was in the course of his employment. In addition, because the second respondent’s intention was to carry out a duty of his employment, the injury arose out of his employment. The second respondent quotes from the observations of Windeyer J in Government Insurance Office (NSW) v R J Green & Lloyd Pty Ltd[30] that “‘[c]aused by’ connotes a ‘direct’ or ‘proximate’ relationship of cause and effect. ‘Arising out of’ extends this to a result that is less immediate; but it still carries a sense of consequence.”
[30] [1966] HCA 6, [3].
The second respondent asserts that, as the Principal Member determined that the injury arose out of his employment, the causal connection of the injury to his employment was satisfied. He points out that, as the appellants do not appeal the finding that the injury arose out of his employment, it is futile to bring an appeal founded upon an allegation of error in determining that the injury occurred in the course of his employment, which is a lesser test. The second respondent says that “in the course of” employment requires a temporal connection whereas “arising out of” employment is a causative test. The second respondent submits that Ground B of the appeal should be dismissed.
In respect of Ground C, the second respondent points out that the requirement in s 9A refers to “a” substantial contributing factor, which is a lesser threshold than that the employment was “the” substantial contributing factor, so that even if the injury was a consequence of more than one substantial factor, it may remain compensable.

The second respondent submits that, once it is determined that the employment is a substantial contributing factor to the injury, despite other non-work related substantial factors, s 9A will not prevent the injury from being compensable. The second respondent contends that it would be difficult to see how the Principal Member could make any other finding other than that s 9A was satisfied. He submits that, as submitted by the Nominal Insurer, once the second respondent formed the intention to inspect the vehicle as it arrived at the park to ensure that the dog was not entering the property, the second respondent was in the course of his employment.
The second respondent submits that it is difficult to see how the employment could not be a substantial contributing factor to the injury once it is found (and not contested on appeal) that the injury arose out of the second respondent’s employment because he was performing a work duty. The second respondent submits that Ground C should fail and ought to be dismissed.

As to Ground D

The appellants’ submissions

The appellants challenge the Principal Member’s finding in respect of the second respondent’s pre-injury average weekly earnings, which was based upon 28 hours per week together with the value of the accommodation provided.
The appellants submit that the agreed amount paid to Ms Crossey was $500 per week, based on 20 hours’ work. The appellants assert that if both the second respondent and Ms Crossey were engaged to do the work, then the amount of $500 should be divided by two, which is a figure of $250 each, and which was the figure initially calculated by the Nominal Insurer. The appellants add that the accommodation was provided to Ms Crossey, so that no amount of value should be afforded to the second respondent because he would have had the benefit of it in any event. The appellants say that, in the alternative, if some value for the accommodation was to be afforded to the second respondent, it should be half of the value. The appellants submit that the amount of the second respondent’s pre-injury average weekly earnings would then be a total of $350.00.
The appellants assert that the evidence from various witnesses discloses that the second respondent did little or no work at the park which is insufficient to support the notion that the second respondent worked an “arbitrary” 28 hours per week. The appellants suggest that, if the total number of contracted hours was 20, then the hours should be shared between the second respondent and Ms Crossey amounting to ten hours per week. The appellants submit that, if the hourly rate of $21.19 as determined by the Principal Member was accepted, that would mean the second respondent’s average weekly earnings would be an amount of $211.90, rather than the figure $867.78 calculated by the Principal Member.

The Nominal Insurer’s submissions

The Nominal Insurer notes that the appellants assert an error of law in the calculation of the pre-injury average weekly earnings. The Nominal Insurer submits that the appellants do not identify how the method adopted by the Principal Member was incorrect in that the appellants have not made any reference to the legislation or to caselaw. The Nominal Insurer submits that the Principal Member’s findings are factual findings and consistent with Raulston, the findings should not be disturbed because the Principal Member did not fall into error and her conclusions were not glaringly improbable.

The second respondent’s submissions

The second respondent asserts that the Principal Member did not fall into error in determining his pre-injury average weekly earnings to be $867.78. He indicated that in the letter from Mr Gibson dated 30 November 2020, Mr Gibson advised that the work trial commenced on 7 October 2020, which was less than 4 weeks before the injury on 23 October 2020, so that cl 4 of Sch 3 to the 1987 Act and regulation 8F of the 2016 Regulation applied.
The second respondent submits that the Principal Member applied cl 4 of sch 3 and reg 8F by applying the applicable hourly rate for a wage level 2 worker in accordance with the Hospitality Industry (General) Award 2020. The second respondent submits that the Principal Member then determined the value of the accommodation to be that of a shared room with no meals provided. He refers to cl 6 of Sch 3 in which “earnings” is defined and which provides for the inclusion of the value of non-monetary benefits if the worker is deprived of the benefit.
The second respondent refers to the Principal Member’s reasons in which she accepted Ms Crossey’s evidence as to the second respondent’s hours of work and points out that the appellants submitted to the Principal Member that that evidence was supportive of the hours worked by the second respondent.
The second respondent submits that this ground of appeal should fail and be dismissed.

As to Ground E

The appellants’ submissions

The appellants submit that the Principal Member went beyond matters that were the subject of submissions by the parties.
In submissions following receipt of the transcript, the appellants say that the parties did not submit that the statements of witnesses other than Mr Anderson should be treated with caution and the Principal Member did not raise with the parties her intention to do so. The appellants say that, had the matter been raised with the parties, they would have had the opportunity to address the issue by calling those witnesses to give evidence. The appellants submit that it is a relevant consideration that it cannot be said that there was no possibility that this issue could have affected the outcome.
The appellants assert that, in any event, the submissions made by the second respondent in respect of Mr Anderson’s evidence were without foundation.
The appellants say that the Principal Member’s consideration of the parenting payment received by the second respondent was not the subject of submissions made and the Principal Member did not put the parties, particularly the appellants, on notice of that consideration. The appellants add that the Principal Member’s conclusion that the onus of proof rested with the appellants was also not the subject of submissions or raised with the parties by the Principal Member.

The Nominal Insurer’s submissions

The Nominal Insurer asserts that the Principal Member’s approach was appropriate and correct. It says that all of the parties made submissions as to why their evidence ought to be accepted over the competing evidence and it was inherent in those submissions that the opposing parties’ witness evidence should be treated with caution. The Nominal Insurer submits that it is wrong to suggest that the Principal Member erred in law in this respect. The Nominal Insurer says that, in any event, the basis for the Principal Member’s determination was her finding of facts in relation to the issues in dispute, which were identified by her. Further, the Nominal Insurer submits that the conditions applicable to a parenting allowance are publicly available and the Principal Member was entitled to take judicial notice of such matters.
The Nominal Insurer submits that the appellants have failed to demonstrate an error of law.

The second respondent’s submissions

The second respondent submits that the Principal Member did not determine the matter on the basis of a matter not put by or to the parties. He submits that the appellants are suggesting that the Principal Member was in some way fettered in determining the matter on the basis that she did, which was to accept the objective evidence of Mr Gibson’s letter in respect of the question of an intention to create a legal relationship and her acceptance of the evidence of Ms Crossey.
The second respondent submits that the appellants’ submissions are contrary to the principle set out in Nguyen v Cosmopolitan Homes[31] that the tribunal of fact should actually be persuaded that an event occurred, and the observations made by McDougall J (McColl JA and Bell JA agreeing) in Nguyen, that:
“…
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”[32]
[31] [2008] NSWCA 246 (Nguyen).
[32] Nguyen, [55].
The second respondent submits that the parties made submissions in relation to Mr Gibson’s letter and the Principal Member considered that it was compelling objective evidence in respect of the issue of whether there existed an intention to create a legal relationship. The second respondent contends that acceptance of the appellants’ submission would be contrary to the principles in Nguyen, in particular the fourth principle.
The second respondent submits that the appellants made submissions in relation to the evidence from Mr Gibson and in relation to the conflict in the witness statements. The second respondent adds that the appellants did not adduce any evidence addressing the contents of Mr Gibson’s letter or the material in the diaries despite the opportunity being offered to them to file a further AALD.
The second respondent refers to the appellants’ complaint about the Principal Member’s reasons relating to the parenting allowance and submits that the appellants made submissions that the fact that the second respondent was in receipt of the allowance was an indication that he was not employed. The second respondent submits that the appellants are wrong to assert that there were no submissions made and, in any event, the Principal Member determined the issues of “worker” and an intention to create a legal relationship on the basis of the objective evidence, that is, Mr Gibson’s letter.
The second respondent indicates that this ground of appeal should fail and be dismissed.

As to Ground F

The appellants’ submissions

The appellants submit the Principal Member was in error in determining that the onus of proof rested on the appellants. They assert that the nature of the enquiry to be made in respect of s 145(3) of the 1987 Act does not give rise to either party bearing the onus of proof and instead the nature of the enquiry is whether the amount sought in the notice to reimburse was appropriate. The appellants describe the expectation that they bore the onus of proof as “inappropriate” in circumstances where the Nominal Insurer has in its possession all the information about the claim and refuses to share the information except as annexures to its reply to proceedings. The appellants say that in those circumstances, they are not in a position to adduce evidence, and on one view, it would be more apt that the onus of proof be borne by the Nominal Insurer to establish that the payments made were appropriate.

The Nominal Insurer’s submissions

The Nominal Insurer disputes the appellants’ submissions in relation to the onus of proof in matters arising from s 145 on the basis that they are inconsistent with the observations of Tobias JA in Raniere Holdings Pty Ltd v Daley.[33] The Nominal Insurer notes that Raniere Holdings was followed in the former Workers Compensation Commission in Kula Systems Pty Ltd v Workers Compensation Nominal Insurer.[34]
[33] [2005] NSWCA 121 (Raniere Holdings).
[34] [2018] NSWWCCPD 10.

The second respondent’s submissions

The second respondent submits that the appellants raised the issues for determination, the matter proceeded on the basis of the evidence adduced and the submissions of the parties, including the appellants being given the opportunity to make submissions in reply. The second respondent disputes that the onus of proof was reversed. The second respondent asserts that the onus of proof swung against the appellants because the weight of the evidence was against them and they did not adduce any evidence to counter the evidence contained in the letter from Mr Gibson.
The second respondent submits that this ground of appeal should fail and be dismissed.

THE RELIEF SOUGHT

The appellants submit that the Principal Member’s Certificate of Determination should be revoked, and an order made that no amount is repayable pursuant to s 145(4) of the 1987 Act. The appellants say that, alternatively, the Certificate of Determination should be revoked, and the matter remitted to a different member for re-determination.
The Nominal Insurer submits that the appeal should be dismissed.
The second respondent seeks to have the appeal dismissed and the Principal Member’s Certificate of Determination confirmed.

CONSIDERATION

Ground A: Error of fact and law in determining the issue of the employment of the second respondent

The appellants contend that the Principal Member erred in respect of her finding that the second respondent was employed by the appellants. The error is said to be that the evidence was against the finding that there was an intention to create legal relationships, which is an essential element of an employment relationship. The appellants rely on Maatta as authority for that proposition. I do not accept that Maatta assists the appellants. The question of whether an employment relationship exists is a question of fact to be determined on the basis of the evidence in each case. The factual circumstances in Maatta were significantly different to the facts in this case. As Roche DP observed in Secretary Department of Family and Community Services v Bee,[35] the examination of whether there was an intention to create a legal relationship involves an objective assessment of what was said or done in the circumstances of the case.
[35] [2014] NSWWCCPD 66, [42].
The appellants submit that, in this case, the evidence was against the Principal Member’s finding in that:
(a)    the only conversation in relation to any agreement to do the work was between Mr Mann and Ms Crossey;
(b)    no payment was made to the second respondent;
(c)    the second respondent was not seen to do any work in the park;
(d)    the provision of accommodation was for the benefit of Ms Crossey, and
(e)    the second respondent was not given any induction in relation to the work to be done.
Ms Crossey asserted that she advised Mr Mann that she required the assistance of the second respondent to fulfil the obligations. Mr Mann did not contest that evidence.
The appellants adduced evidence in the form of statements from various people who said they did not see the second respondent perform any work in the park. There were witness statements relied upon by the second respondent to say that he was seen performing various tasks around the park. The Principal Member found the statement evidence about whether the second respondent performed tasks in the park unhelpful to a consideration of whether the second respondent was, or was not, employed by the appellants.
The Principal Member determined the matter on the basis of the objective and more contemporaneous evidence from Mr Gibson as to the arrangements made, together with the evidence contained in the Lismore Base Hospital notes and the Police Facts Sheet. It is clearly apparent from the evidence from Mr Gibson, which was not addressed by the appellants, that there was an arrangement with both Ms Crossey and the second respondent to undertake care-taking tasks in the park as arranged by Mr Mann. That evidence is sufficient to establish that there was a contractual arrangement in place between the appellants and the second respondent to perform tasks around the park. The Principal Member was entitled, in the exercise of her evaluative judgment, to accept that that evidence established an intention to create a legal relationship.[36] In the context of the objective available evidence of an arrangement being put in place that involved the second respondent performing tasks in and around the park, it is immaterial that the second respondent was not present when the first conversation took place between Mr Mann and Ms Crossey.
[36] Northern NSW Local Health Network v Heggie [2013] NSWCA 255, per Sackville AJA, [179].
It is clear from Mr Gibson’s letter alone that, contrary to the appellants’ submissions, payments were made, and accommodation was provided to both Ms Crossey and the second respondent, in exchange for work performed by both of them.
It follows that Ground A fails.

Ground B: Error of fact in determining that the second respondent was injured in the course of his employment

The appellants assert that even if the second respondent was in an employment relationship with the appellants, his injury, which happened at around 4 pm, did not occur in the course of his employment because his working hours were from 8 am to midday. The appellants say that the second respondent was not performing a work task but was on his way to pick mulberries.
As the Nominal Insurer submits, the Principal Member made a finding of fact that the second respondent approached Mr Ducat’s vehicle for the purpose of informing Mr Ducat that his dog was not allowed on the premises, which was clearly an employment related task. The appellants do not challenge that finding. The evidence from Ms Crossey and the diary entries clearly establishes that the second respondent performed activities related to the caretaking role outside of the described hours of work. In any event, the Principal Member determined that the injury arose out of the second respondent’s employment because the reason the second respondent approached the vehicle was solely to inform Mr Ducat that the dog was not allowed on the park’s premises. The Principal Member also determined that the second respondent worked on an “on call” basis, so that the time of the injury was not relevant to a determination that the injury occurred either in the course of his employment or that it arose out of the employment. The appellants do not challenge the conclusion that the second respondent was “on call”.
The appellants do not make any persuasive submission that indicates that the Principal Member erred in concluding that the injury occurred in the course of the second respondent’s employment, but even if that conclusion was wrong, there is no challenge to the Principal Member’s conclusion that the injury arose out of the employment. It was open to the Principal Member to determine that the injury arose out of the second respondent’s employment because the second respondent was dealing with matters arising from the management of the park.
A statutory right of appeal under s 352 of the 1998 Act requires a demonstration that the decision appealed against was affected by error. As the Nominal Insurer submits, any error in the Principal Member’s factual conclusions must affect the outcome. Even if the finding that the second respondent’s injury occurred in the course of his employment was wrong, having come to the conclusion that the injury arose out of the employment, the asserted wrong finding cannot have affected the outcome. The appellants have failed to establish error on the part of the Principal Member and this ground of appeal fails.

Ground C: Error of fact and law in determining that the employment was a substantial contributing factor to the injury

The appellants assert that the injury would have occurred whether or not the second respondent was in an employment relationship. As discussed earlier, the time that the injury occurred was not relevant to the question of whether the injury was work related. It is also not a material consideration to a determination of whether the second respondent’s employment was a substantial contributing factor to the injury, in the context of the Principal Member’s determinations that the second respondent worked on an “on call” basis and there was a causal connection between the employment and the injury.
The Principal Member’s reasons for finding that s 9A was satisfied were succinctly expressed as follows:
“… the police statement of [the second respondent] does say he approached Mr Ducat’s car to check and see if the dog was present. It was submitted that this satisfies s 9A of the 1987 Act. I find the factors in s 9A(2) are such that employment was a substantial contributing factor. [The appellants seem] to suggest because the time was about 4pm and this was outside [the second respondent’s] working hours, if he is found to be an employee, [this] is a determinative factor. But I am satisfied that the time and place of injury are consistent ... with his employment being a substantial contributing factor. The place was the driveway of the Park and time was consistent with him being an ‘on-call’ type worker, where he had to deal with events that arose. The nature of his work was as a caretaker and part of that task was to keep discipline at the Park and sort out problems, such as avoiding dog fights. I also find there is no probability that the injury would have occurred at the same stage of his life as the reason for him approaching Mr Ducat’s car was to see if the dog that previously caused trouble was in the car. Therefore, I find s 9A is satisfied.”[37]
[37] Reasons, [128].

It is clear from the above passage that the Principal Member considered the factors set out s 9A(2) of the 1987 Act, as she was required to do.
In Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited,[38] the Court of Appeal (per Allsop P, Beazley JA and McColl JA) made the following observations as to what was to be considered in the application of s 9A:
(a) the word “substantial” means in a manner that is real and of substance which denotes a causal connection, regardless of whether the injury arose out of or in the course of employment;[39]
(b) It is not sufficient to say that because the injury arose out of the employment, then the employment must be a substantial contributing factor;[40]
(c) the decision-maker is required to take into account the factors identified in s 9A(2) where they apply, but may take additional relevant factors into account,[41] and
(d) while s 9A(2)(a) directs attention to the time and place of the injury (that is, what in fact the worker was doing at the time of the injury), s 9A(2)(b) directs attention to the nature of the work performed and the particular tasks of the employment concerned.[42]
[38] [2009] NSWCA 324 (Badawi).
[39] Badawi, [82]–[83].
[40] Badawi, [85].
[41] Badawi, [89].
[42] Badawi, [96].
The work performed by the second respondent was that of a care-taker in the park which involved ensuring that the park was safely maintained. The particular task that the second respondent undertook was to ensure that a dog which was known to be aggressive did not enter the park. There was no other fact-based reason as to why the second respondent was performing the task of approaching Mr Ducat’s car other than to convey the instruction to Mr Ducat that the dog was not permitted in the park. The second respondent’s employment was clearly a substantial contributing factor (if not the only factor) to the injury.
This ground of appeal is not made out and fails.

Ground D: Error of fact and law in determining the second respondent’s pre-injury average weekly earnings

The appellants submit that the Principal Member erred in determining the second respondent’s pre-injury average weekly earnings on the basis of the second respondent having worked 28 hours per week and having been provided with accommodation. The appellants submit that the proper figure should be half of the amount of $500 that Ms Crossey was paid and either no allowance should be made for the provision of accommodation because that was provided to Ms Crossey or, in the alternative, half of the accommodation allowance should be calculated because the second respondent shared the accommodation. The appellants repeat their submission that the second respondent did little or no work, which was a proposition that was rejected by the Principal Member for the detailed, evidence-based reasons provided by her.
The appellants say that the witness statements, which indicate that the second respondent did little or no work, are insufficient to support the Principal Member’s “arbitrary” notion that the second respondent worked 28 hours per week. The Principal Member did not accept the evidence of those witnesses. For the reasons expressed in her determination, she preferred the evidence of Mr Gilbert, who said that the couple were contracted to work 20 hours per week, but the true hours worked were unknown. The only other evidence (other than that of the second respondent) as to the actual hours worked was provided by Ms Crossey, whose evidence was that the couple both worked all day, seven days per week. Her evidence was accepted by the Principal Member, although the Principal Member took a more conservative approach to the calculation of the hours worked. It is a logical step to conclude that the managers or care-takers of a caravan park, where tenants come and go, would be required to work seven days per week, attending to new, departing and existing visitors, replacing linen and cleaning the units and vans as they were vacated. It can be fairly assumed that that work was not conducted solely from Monday to Friday. The Principal Member’s conclusion that the second respondent worked 28 hours per week was not “glaringly improbable” nor was there “incontrovertible evidence” contrary to the Principal Member’s finding that was so compelling that it showed the Principal Member was wrong.[43]
[43] Raulston.
The appellants do not point to any legislative provision or any authority contrary to the Principal Member’s determination, thus there is no error of law identified by the appellants. The second respondent had been in the employment for less than 4 weeks when the injury occurred. The Principal Member was therefore required to apply cl 4 of Sch 3 to the 1987 Act. The second respondent had the benefit of the provision of accommodation, so that the Principal Member was required by cl 6 to Sch 3 to assess the monetary value of that non-pecuniary benefit, which was to be assessed in accordance with cl 7 of Sch 3 to the 1987 Act and reg 8F of the 2016 Regulation. The Industrial Award identified by the second respondent and adopted by the Principal Member was said to be the Award identified by the Fair Work Commission and the appellants have not challenged that submission.
It is plainly obvious that the Principal Member determined the issue of the second respondent’s pre-injury average weekly earnings in accordance with law.
The appellants have failed to point to any fact accepted by the Principal Member that was erroneous. In the circumstances, the appellants’ challenge to the Principal Member’s determination of the second respondent’s pre-injury average weekly earnings fails.

Ground E: Error of law in determining the matter on a basis not put by or to the parties

The appellants assert that the parties did not submit that the lay witnesses’ evidence, other than that of Mr Anderson, should be treated with caution and that the Principal Member did not raise with the parties her concerns about that evidence. The appellants say that they ought to have been provided with the opportunity to make submissions about the Principal Member’s concerns and those submissions may have changed the outcome of the case.
At the arbitration, the appellants made submissions that Mr Teniswood, Ms Benfell, Ms Ducat, Mr Anderson and Mr Mann gave statement evidence that the second respondent was not seen doing any work in or around the park.[44] The appellants made further submissions as to why the statement evidence relied upon by the second respondent from Kit and Nancy Peters, Ms Rhodes-Mayo, Ms Bazzano and Ms Crossey should not be accepted.[45] The Principal Member was therefore required to determine whether any of that evidence was reliable. She considered that the evidence was of little assistance to her and determined the matter on the basis of other objective evidence. The appellants clearly had the opportunity and did avail themselves of the opportunity to make submissions as to whether that evidence should or should not be accepted. Once raised by the appellants, it was a matter for the Principal Member to deal with those submissions. Where evidence is unreliable, it is open for a tribunal to look for assistance from other evidence and evidence may be rejected if it is inconsistent with other, accepted evidence.[46]
[44] Transcript of proceedings of 9 September 2022, Mann & Seymour t/as Nimbin Crystal Tourist Park v Workers Compensation Nominal Insurer (iCare) & Ors [2022] NSWPIC 739 (T), T14.30–17.11.
[45] T22.12–24.30.
[46] Devries v Australian National Railways Commission [1993] HCA 78; Jackson v McDonald’s Australia Ltd [2014] NSWCA 162.
The appellants further complain that the Principal Member’s consideration of the parenting payment was not the subject of submissions by the parties. The fact that the second respondent was in receipt of a parenting payment was a fact raised by the appellants, who submitted that the payment was evidence that the second respondent was not in employment and was instead looking after the children.[47] It is clear that the receipt of the parenting payment was a matter raised in submissions by the appellants and thus it was a matter that required consideration by the Principal Member. Section 43(2) of the 2020 Act provides that the Commission may inform itself on any matter it sees fit. The Principal Member was entitled to take into account knowledge that was, in this case, reasonably open to question, or facts that an ordinary person may know in order to either accept or reject the submission put by the appellants.[48]
[47] T15.29–30; T19.5–8.
[48] Holland v Jones [1917] HCA 26.
I note that, in an appeal from a decision of a member of the Commission, the appellants’ legal representatives are required to endorse that the appeal grounds have reasonable prospects of success. In the circumstances, it is difficult to see how that would be the case in respect of this ground of appeal. The appellants’ assertion that the Principal Member erred by determining the matter on the basis of matters not put in submissions or by failing to provide the appellants with the opportunity to make submissions is not made out. This ground of appeal fails.

Ground F: Error of law in considering that the appellants bore the onus of proof in respect of the application

The appellants submit that neither party bears the onus of proof in matters pertaining to s 145(3) of the 1987 Act. The second respondent submits that the weight of the evidence was against the appellants so that the onus shifted to the appellants to prove they were not liable to reimburse the Nominal Insurer. The Nominal Insurer cites Raniere Holdings and quotes from the judgment of Tobias JA in that case. The Nominal Insurer submits that the appellants’ ground of appeal is contrary to that authority.
The observations made by Tobias JA in Raniere Holdings were as follows:
“… the employer’s liability to reimburse the Fund in respect of the amount of any payment made to the injured worker under the Scheme is a reference to its liability to pay the injured worker compensation under the Act is, in my opinion, confirmed by the terms of s 145(5). That subsection provides for the admissibility of a certificate executed by the Authority certifying firstly, the amount of any payment made to the injured worker and, secondly, that the person named in the certificate (the employer) was in the opinion of the Authority ‘liable at the relevant time to pay to or in respect of the injured worker compensation under [the] Act.’
Such a certificate becomes evidence of the matters stated in it. However, it is not conclusive and it is open to the employer to prove that at the relevant time it was not liable to pay compensation to the injured worker under the Act” [emphasis added by the Nominal Insurer].”[49]
[49] Raniere Holdings, [46].
The appellants’ assertion that they did not bear the onus of proving that they were not liable is contrary to those observations. The appellants do not point to any contrary authority or any legislative basis to assist in respect of this ground of appeal. The appellants’ allegation of error on the part of the Principal Member is not made out and the ground of appeal fails.

CONCLUSION

All of the appellants’ grounds of appeal have failed to establish that the Principal Member committed an error of fact or law in her determination. The Principal Member’s Certificate of Determination is confirmed.

DECISION

The Principal Member’s Certificate of Determination dated 22 December 2022 is confirmed.

Elizabeth Wood
DEPUTY PRESIDENT

29 January 2024