QBE Workers Compensation (NSW) Limited v Simaru Pty Limited

QBE Workers Compensation (NSW) Limited appealed to the Court of Appeal of New South Wales against a decision of the Supreme Court of New South Wales concerning the liability of an insurer to indemnify an occupier. The dispute arose from a claim for workers compensation by an individual injured while engaged in direct marketing of cookware products. The central issue was whether this injured individual was a "deemed worker" under Schedule 1, Clause 5 of the *Workplace Injury Management and Workers Compensation Act 1998* (NSW), thereby triggering the insurer's indemnity obligations under a statutory Employment Insurance Policy.

The Court of Appeal was required to determine whether the injured individual, who arranged sales at hostesses' homes, qualified as a salesperson under Clause 5 of Schedule 1. This involved considering whether the remuneration received was properly characterised as a commission, and crucially, whether the individual's activities were incidental to an independent trade or business, particularly given that the seller was a registered business.

The Court analysed the nature of the relationship between the injured individual and the entity they represented, focusing on the control exercised and the economic reality of the arrangement. It applied the principles for characterising an individual as a worker or an independent contractor, considering the terms of the contract, the method of remuneration, and the degree of integration into the principal's business. The Court found that the individual's activities, despite being conducted through a registered business and receiving commission, did not fall outside the scope of Clause 5, as the work was not truly incidental to a separate, independent trade or business.

The appeal was dismissed, and QBE Workers Compensation (NSW) Limited was ordered to pay the costs of the appeal.