Richardson v DF Haulage Pty Ltd

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Richardson v DF Haulage Pty Ltd [2018] NSWWCCPD 28
APPELLANTS:	Brenda Richardson (First Appellant) Kacey Richardson (Second Appellant) Joshua Thomas Richardson (Third Appellant)
RESPONDENT:	DF Haulage Pty Ltd
INSURER:	AAI Ltd trading as GIO – Agent for the NSW WorkCover Scheme
FILE NUMBER:	A1-4790/17
ARBITRATOR:	Ms D Moore
DATE OF ARBITRATOR’S DECISION:	23 February 2018
DATE OF APPEAL DECISION:	12 July 2018
SUBJECT MATTER OF DECISION:	Section 4 of the Workplace Injury Management and Workers Compensation Act 1998; Intention to create a legal relationship; application of Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95, Ashton v Pratt [2015] NSWCA 12, Vacik Distributors v Kelly (1995) 12 NSWCCR 30
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellants:	Beilby Poulden Costello Lawyers
Respondent:	Hicksons
ORDERS MADE ON APPEAL:	1.    The pleadings in matter number 4790/17 are amended to delete “The Estate of the Late Anthony Paul Richardson” wherever it appears. 2.    The pleadings in matter number 4790/17 are further amended to nominate Brenda Richardson as the First Applicant, Kacey Richardson as the Second Applicant and Joshua Thomas Richardson as the Third Applicant, wherever they appear. 3.    The Arbitrator’s Certificate of Determination dated 23 February 2018 is confirmed.

INTRODUCTION

1. Brenda Richardson, Kacey Richardson and Joshua Thomas Richardson (the appellants) claimed lump sum compensation pursuant to s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act) together with funeral expenses pursuant to s 26 of the 1987 Act in respect of their deceased husband and father, Anthony Paul Richardson.

2. Mr Richardson suffered severe injuries on 14 December 2014, when he was leaning over the wheel of a Kenworth prime mover while the cabin of the prime mover was raised and tilted forward. Mr Richardson became pinned between the cabin and the wheel when the cabin dropped down onto him. Mr Richardson died as a result of those injuries on 16 December 2014.

3. The prime mover was owned by DF Haulage Pty Ltd (the respondent) and was parked on the property of Rocco Fabiano, a director of the respondent, at the time of the incident.

4. The claim for compensation was disputed in a notice issued pursuant to s 74 and dated 18 November 2015. The respondent disputed Mr Richardson was a worker as defined within s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It also disputed that Mr Richardson was a “deemed worker” within the meaning of cl 2 of Sch 1 of the 1998 Act. In the alternative, it disputed that Mr Richardson was in the course of his employment when he suffered the injuries causing death.

5. The dispute came to arbitration on 14 December 2017. In view of time constraints the Arbitrator heard submissions limited to the issues expressed in the s 74 notice and foreshadowed a potential telephone conference to deal with the apportionment of any…