Sara v G & S Sara Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sara v G & S Sara Pty Ltd [2021] NSWPIC 286
APPLICANT:	Sayde Sara
RESPONDENT:	G & S Sara Pty Ltd
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	10 August 2021
CATCHWORDS:	WORKERS COMPENSATION- The worker contracted the COVID-19 virus and died whilst working in New York; the applicant was the widow of the worker; the respondent was part of a group of companies that provided dental technician products and services across the healthcare sector in Australia and the United States; the respondent paid the wages of the Australian employees and issued a monthly management to the company that operated the business and dealt with the public (Stoneglass Australia); A company incorporated in the United States (Stoneglass US) obtained work from universities and sent that work back to Australia for processing; fees were charged by Stoneglass Australia to Stoneglass US for the work performed; the respondent submitted that the virus was contracted in a social setting outside the course of employment and/or the work performed by the worker was for Stoneglass US and not covered by the 1987 Act; Held- the virus was probably contracted during the period of the travel to the US which included passing through customs at San Francisco; this finding was based on the onset of symptoms, the worker’s reluctance to wear masks, the likely exposure to many people during the period of travel and the medical evidence as to the likely incubation period; the company group organised its administration in a manner consistent with the respondent being the employer and there was no suggestion that this arrangement was a sham; Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd applied; the work performed in the United States was not exclusively for the US company because some of the work was in the name of Stoneglass Australia and that company otherwise received a direct benefit from Stoneglass US entering into contracts; there was no evidence that the workers employment was transferred to Stoneglass US and the payslips for the relevant period indicated that the worker was being paid his normal wage by the respondent during this period; the virus was contracted in the course of the employment; Comcare v PVYW applied; based on these findings, the applicant succeeded as the respondent did not contest the presumptions that arose under section 19B of the 1987 Act; applicant entitled to death benefit; quantum of section 60 expenses stood over.
DETERMINATIONS MADE:	1. Mr Georges Sara died on 21 November 2020 as a result of injury sustained in the course of his employment with G & S Sara Pty Ltd (the respondent) when Mr Sara was engaged in prescribed employment and contracted COVID-19 within the meaning of s 19B of the Workers Compensation Act1987. 2. As at the date of death, the applicant was a dependant within the meaning of s 25 of the Workers Compensation Act1987. 3. There were no other dependents of the deceased as at the date of death. 4. The lump sum death benefit as at the date of death is $834,200. 5. Pursuant to ss 29(1) and 85A of the Workers Compensation Act1987, the respondent pay the applicant the sum of $834,200. 6. The respondent pay the expenses pursuant to ss 26 and 28 of the Workers Compensation Act1987. 7. The respondent pay the applicant weekly compensation: (a) from 23 July 2020 to 21 October 2020 at $1,389.38 per week pursuant to s 36 of the Workers Compensation Act1987; and (b) from 22 October 2020 to 21 November 2020 at $1,170.00 per week pursuant to s 37 of the Workers Compensation Act1987. 8. The balance of the proceedings is stood over to a further telephone conference to be held after the time to appeal has expired. If an appeal is filed, then the matter is stood over pending the determination of any appeal. The parties have liberty to re-list the matter.

STATEMENT OF REASONS

BACKGROUND

On 23 July 2020 Mr Georges Sara was admitted to the New York-Presbyterian Hospital and diagnosed with COVID-19, the disease caused by the SARS-CoV2 virus (COVID-19). After two weeks, Mr Sara was transferred to an advanced care ward at the Columbia University campus of the New York-Presbyterian Hospital. During the period of hospitalisation, Mr Sara suffered several heart attacks and strokes.[1] He died on 21 November 2020 due to acute respiratory distress because of complications from COVID-19.[2]
[1] Application to Resolve a Dispute filed in W1181/21 (Application), p 11.
[2] Application, p 204.
The principal issue in this matter is whether Mr Sara was in the course of his employment with G & S Sara Pty Ltd (the respondent) when he contracted the COVID-19 virus. The respondent submits that the work performed in the United States was for Stoneglass Inc (Stoneglass US) and it bears no liability under the provisions of the Workers Compensation Act 1987 (the 1987 Act).
Mrs Sara (the applicant) is the widow and executor of Mr Sara’s estate.
In matter number W1181/21 the applicant is claiming weekly compensation for the period from 24 July 2020 to 21 November 2020 and expenses pursuant to s 60 of the 1987 Act. The s 60 expenses are alleged to be more than $11 million (USD) subject to currency fluctuations between the United States and the Australian dollar.
In matter number W1185/21 the applicant is claiming the lump sum death benefit pursuant to s 25 of the 1987 Act and funeral and associated expenses pursuant to ss 26 and 28 of the 1987 Act.
The applicant and Mr Sara have two children. It is accepted[3] that the applicant is a dependent of Mr Sara within the meaning of s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The children have stated that they are not dependents of Mr Sara and/or make no claim in these proceedings.
[3] Sara v G & S Sara Pty Ltd, 26 July 2020, Transcript (T), p 5.
The Commission has previously ordered that the two matters be heard together and the evidence in one proceeding be evidence in the other.
The material filed in the matter is extensive and spans over 12,000 pages. In these circumstances, at the commencement of the arbitration hearing, the parties were referred to the observations of the High Court in Gamestar Pty Ltd v Lockhart[4] where it was observed that a Court is not required to “search for supportive evidence” in support of a claim. The High Court stated:[5]
“In court proceedings, a judge is bound to give a party a reasonable opportunity to state the party's claim for relief and to point to the evidence which supports it. But if the opportunity is not taken, the judge is not bound to set out on a search for supportive evidence to support a claim which the party has failed to articulate intelligibly. Gaudron J was correct in holding that there was no denial of natural justice.”
[4] (1993) 112 ALR 623 (Gamestar).
[5] Gamestar at [8].
These observations have been applied in the Workers Compensation Commission.[6] There is every reason to apply this principle in the Personal Injury Commission particularly when the material is extensive, and the parties are on notice. The principle is otherwise consistent with the objects of the Personal Injury Commission Act2020 which provide that the Commission is to “resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible”.[7]
[6] See Jaffarie v Quality Castings Pty Ltd [2017] NSWWCCPD 2 at [208]; Carter v Star Track Express Pty Ltd [2015] NSWWCCPD 60 at [34].
[7] See s 3 of the Personal Injury Commission Act2020.
Counsel did not object to the matter proceeding on this basis.[8]
[8] T, pp 2-3.
I otherwise observe that the Commission has a statutory obligation to provide a “brief statement of reasons”.[9]
[9] Section 294 of the Workplace Injury Management & Workers Compensation Act 1998 (the 1998 Act).

CORPORATE STRUCTURE OF THE STONEGLASS GROUP

There are a number of related corporations referred to in this matter (the Stoneglass Group).

The respondent was incorporated on 27 February 1990.[10] At all relevant times the respondent had three issued shares held by Mr Sara, Mrs Sara and the Sara Family Trust. The directors of the respondent were Mr and Mrs Sara.
[10] Applicant’s late Application, p 5.

Stoneglass Dental Laboratory Pty Ltd (Stoneglass Australia) was incorporated on 17 June 2003.[11] It has two issued shares held at all relevant times by Mr and Mrs Sara. Mr and
[11] Applicant’s late Application, p 19.
Mrs Sara were also the directors of Stoneglass Australia.
Stoneglass Australia operates the business “that deals with the public”.[12] It was originally created to provide dental technician products and services across the healthcare sector in New South Wales.[13]
[12] Application, p 194-5.
[13] Application, p 8.
The respondent paid the employees’ salaries and wages and issued a monthly management fee to Stoneglass Australia.[14]
[14] Evidence of Mr Begovic, Application, p 195. See also the invoices in the Applicant’s late Application, pp 44-61.
The business expanded into developing software for precision dental modelling and fabrication targeted at the East Coast of the United States.[15] At some point, Stoneglass US was incorporated in the United States. The Managing Director and President of Stoneglass US was Mr Sara. The sole shareholder of Stoneglass US was the Sara Family Trust.
[15] Application, p 8.
The trustee of the Sara Family Trust is Jessi Lew Pty Ltd. The trust was created on 8 October 1996.[16] The shareholders of Jessi Lew Pty Ltd were Mr and Mrs Sara. The Sara Family Trust held the “assets of behalf of the group”.[17]
[16] Applicant’s late Application, p 31.
[17] Application, p 194.

Stoneglass US operated in the United States. The evidence shows that Stoneglass US secured contracts with universities in the United States including Columbia University, Rutgers University, Virginia Commonwealth University and the University of Western Virginia. Contracts were also secured with some dentists practising in New York.
The accountant, Mr Begovic, stated that the majority of the earnings of the Stoneglass Group came from the universities located in the United States.[18] He stated:
“Work is usually collected from these universities, returned to Australia for processing and the completed work sent back to the USA.”
[18] Application, p 195.

ISSUES FOR DETERMINATION/AGREEMENT

At the arbitration hearing Mr Hanrahan appeared for the applicant. Ms Tronson with
Mr Nesbeth appeared for the respondent.

The allegation of injury was amended and pleaded in the following terms:
(a) exposure to the COVID-19 virus from 15 July 2020 to 23 July 2020; and
(b) injury on 23 July 2020 being the date of diagnosis in accordance with s 19B(4)(a) of the 1987 Act.
The applicant relied on injury pursuant to s 4(a) and/or (b) and the deeming provisions pursuant to s 19B of the 1987 Act.[19]
[19] T, p 1.
The respondent’s written submissions put the following issues in dispute:[20]
(a) Mr Sara was not a “worker” of the respondent at the relevant time for the purposes of s 4 of the 1998 Act;
(b) Mr Sara’s injury did not arise out of or in the course of his employment pursuant to s 4 of the 1987 Act; and
(c) Mr Sara’s employment with the respondent was not the main contributing factor to contracting COVID-19.
[20] Respondent’s written submissions, [2].

The respondent also submitted:[21]
“If Mr Sara succeeds on the issues outlined [above], the respondent will not press its contention that s 19B of the 1987 Act has no application in the present case.”
[21] Respondent’s written submissions, [3].
The articulation of these issues was developed in oral submissions. An issue arose because the applicant relied on injury pursuant to s 4(a) and/or s 4(b) of the 1987 Act and the respondent had assumed in its written submissions that the claim was limited to an allegation of disease within the meaning of s 4(b). The development of these issues included the following defences:
(a) that if the injury was characterised under s 4(a) then s 9A was in issue;[22]
(b) that at the relevant time Mr Sara may have been employed by Stoneglass Australia;[23] and
(c) that its “primary case” was that Mr Sara was working for Stoneglass US at the relevant time and s 19B does not apply.[24]
[22] T, p 5.
[23] T, p 6.
[24] T, p 8.

Several issues were agreed. They are:
(a)    Mr Sara had no work capacity for the period from 23 July 2020;[25]
(b)    the pre-injury average weekly earnings (PIAWE) were $1,462.50;[26]
(c)    Mr Sara contracted a disease, being the COVID-19 disease, between 15 and 23 July 2020, and that this disease caused his hospitalisation and death;[27] and
(d)    the amount of the death benefit was $834,200.[28]
[25] Direction dated 20 May 2021, paragraph 9.
[26] Direction dated 20 May 2021, paragraph 9.
[27] Email form respondent’s solicitors dated 26 May 2021
[28] T, p 119.

The respondent otherwise admitted that Mr Sara was an employee of the respondent “at times” but disputed that he was an employee at the relevant time after 15 July 2020.[29]
[29] T, p 5, lines 20-25.
The admission contained in paragraph 27(c) meant that it is unnecessary to refer to the evidence from persons who encountered Mr Sara prior to 15 July 2020 and tested negative to contracting COVID-19.
After the identification of these issues, the respondent made various concessions concerning the application of s 19B of the 1987 Act. These concessions are set out later in these Reasons.

EVIDENCE

The following documents were admitted without objection:[30]
a.     Application to Resolve a Dispute and attached documents filed in W1181/21 (Application);
b.     Application to Resolve a Dispute and attached documents filed in W1185/21;
c.     Reply and attachments filed in W1181/21;
d.     Reply and attachments filed in W1185/21;
e.     statement by Lewis Sara dated 20 May 2021;
f.     Application to Admit Late Documents filed by the applicant dated 23 July 2021; and
g.     Application to Admit Late Documents filed by the respondent dated 20 July 2021.
[30] T, p 1.
The respondent provided written submissions and the applicant provided a chronology.
Neither party sought to call oral evidence.[31]
[31] T, p 2.

LEGISLATION

Section 4 of the 1987 Act relevantly provides:
“‘injury’:
(a) means personal injury arising out of or in the course of employment,
(b) includes a "disease injury", which means:
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.”
Section 19B of the 1987 Act provides:
“(1) If a worker, during a time when the worker is engaged in prescribed employment, contracts the disease COVID-19 (also known as Novel Coronavirus 2019), then for the purposes of this Act, it is presumed (unless the contrary is established)-
(a)that the disease was contracted by the worker in the course of the employment, and
(b)the employment-
(i) the case of a person to whom clause 25 of Part 19H of Schedule 6 applies—was a substantial contributing factor to contracting the disease, or
(ii) in any other case—was the main contributing factor to contracting the disease.
(2) A worker is taken to have contracted COVID-19 for the purposes of this Act if the result of a medical test-
(a)that complies with requirements prescribed by the regulations in relation to the disease, and
(b)that was carried out for the purpose of determining if the worker has contracted the disease,
is a result prescribed by the regulations in respect of the disease.

(3)    A worker is taken to have contracted COVID-19 for the purposes of this Act if the worker is classified by a medical practitioner as having COVID-19, having satisfied the epidemiological or clinical criteria (or both) prescribed by the regulations for the purpose of making that classification.
(4)    For the purposes of this Act, the date of the injury in relation to COVID-19 is the date of whichever of the following occurs first-
(a)  the worker is diagnosed by a medical practitioner as having COVID-19 following a prescribed test result, as referred to in subsection (2),
(b)  the worker is classified by a medical practitioner as having COVID-19, as referred to in subsection (3),
(c)  the worker dies as a result of COVID-19.
….

(9) In this section-
prescribed employment means employment in any of the following-
(a) the retail industry (other than businesses providing only on-line retail),
(b)the health care sector, including ambulance officers and public health employees”.

SUBMISSIONS

The following is not an exhaustive summary of the respondent’s oral and written submissions. Portions of the respondent’s submissions are otherwise referred to in the findings. The applicant’s submissions are summarised in the findings.

The respondent submitted:
(a)    even though the various companies are related, they operated as distinct legal entities. The work that Mr Sara was doing in the United States was work for Stoneglass US;[32]
[32] T, p 50.
(b)    the payment of wages is a strong indicium of being a worker;
(c)    not all actions taken on the trip overseas were “in the course of employment”. There needed to be a level of objectiveness. For example, the fact that Mr Sara was a directing mind and made the decision to go to dinner does not mean that he was relevantly encouraging himself to go to dinner;[33]
[33] T, p 59.
(d)    all of the evidence points to the fact that the work that had to be done in New York was done for Stoneglass US. The work done for Stoneglass Australia could have been done anywhere;
(e)    there is no evidence that Stoneglass US paid Mr Sara a salary. There is also no evidence that Mr Sara was “required by the respondent to be on loan or on hire as an agent to the US company”;[34]
[34] T, p 60.
(f)    there is no evidence that there was an arrangement between the respondent and Stoneglass US “that Mr Sara was to be in the US on behalf of the respondent in the US as opposed to in the US for the purposes of the US company”;[35]
[35] T, p 60.
(g)    to the extent that Mr Sara was doing work for Stoneglass Australia, “he could have done that anywhere”;[36]
[36] T, p 60.
(h)    whilst Mr Sara was not paid by Stoneglass US, there was the potential to be paid;[37]
[37] T, p 64.
(i)    the question of benefit to Stoneglass Australia from the work done by Mr Sara was a “relevant” matter but not the “primary question”. The benefit was similar to a benefit received by an unrelated third party;
(j)    the work performed in the United States was primarily performed for Stoneglass US. It was theoretically possible for work to be done for both, but the work was done solely for Stoneglass US;[38]
(k)    the work undertaken in the hotel room was primarily for Stoneglass US. In any event, this was work undertaken after Mr Sara had contracted the virus. Secondly, the work done for Stoneglass Australia was “insufficient to displace the evidence that he was working for the US company while he was in the US.”[39]
(l)    the various witnesses such as Dr Zemnick, Dr Brown and Dr Stavrinoudis established that the work was done for Stoneglass US. In particular, this included work for Columbia University which was probably undertaken through Stoneglass US[40] and the contract with Rutgers University. The contract signed with Rutgers was probably a “loss-leading contract” which provided some context that there might not have been payments to Mr Sara from Stoneglass US, whether directly or through his status as a beneficiary of the trust;[41]
(m)     various actions were social, such as the dinner with Dr Brown and
Dr Stavrinoudis. To the extent that it was business, it was business for Stoneglass US;[42]
(n)    the evidence establishes that Stoneglass US contracted with Rutgers University, Columbia University and Virginia Commonwealth University. Stoneglass US issued invoices and were paid by the various entities;[43]
(o)    the work done in the United States was for Stoneglass US and the work done for Stoneglass Australia was “at best limited” and was work that Mr Sara could have done whilst he was somewhere else. The purpose of the trip was for Stoneglass US and not for the respondent nor Stoneglass Australia;[44]
(p)    the benefit for Stoneglass Australia from the contracts obtained by Stoneglass US was no different to an “unrelated company”. The companies were separate legal entities and operated independently; and
(q)    the timing of when Mr Sara contracted the virus was relevant.[45] It was unlikely that Mr Vasquez exposed Mr Sara to COVID-19 on 17 July because Mr Sara’s symptoms commenced on 18 July. Given that Dr Brown and Dr Stavrinoudis tested negative, the three possibilities were that Mr Sara was infected during his trip to the United States, at the hotel or by Dr Zemnick.[46]

[38] T, p 66.

[39] T, p 75.

[40] T, p 85.

[41] T, p 86.

[42] T, p 86.

[43] T, pp 88 - 92.

[44] T, p 94.

[45] T, p 102.

[46] T, p 104.

FINDINGS AND REASONS

The applicant must prove her case on the balance of probabilities.[47]

[47] Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 per McDougall J at [44]- [55], McColl and Bell JJA (as their Honours then were) agreeing; Chen v State of New South Wales (No 2) [2016] NSWCA 292 per Leeming JA at [33]-[34]; McColl JA agreeing at [1].

Stoneglass Group

The applicant submitted that the companies within the Stoneglass Group were “legal fictions”[48] and that the corporate veil should be lifted.[49]
[48] T, p 12.
[49] T, p 115.
I agree with the respondent’s submission that the phrase “piercing the corporate veil” is “probably overused and too much misused”.[50] No authority was cited by the applicant nor submissions made as to what end would be achieved if the status of the various corporations were “pierced”.
[50] T, p 100.
The difficulties in seeking to pierce the corporate veil were recently discussed by the Court of Appeal in Burrows v Macpherson & Kelly Lawyers (Sydney) Pty Ltd.[51] Leeming JA set out the difficulties where a party seeks to pierce the corporate identity. His Honour stated:[52]
[51] [2021] NSWCA 148 (Burrows).
[52] Burrows at [124] – [126], Meagher and White JJA agreed.
“124. It is well settled that mere control is not sufficient to disregard corporate identity. In James Hardie & Co Pty Ltd v Hall(1998) 43 NSWLR 554 at 583-584, Sheller JA said, when declining to create a duty of care owed by the parent company to an employee of its subsidiary:
‘It has been suggested that in company law the corporate veil between parent and subsidiary may be lifted where the latter was so controlled by the former as to be its agent for the purposes of liability: Smith, Stone & Knight Ltd v City of Birmingham [1939] 4 All ER 116. However, in Woolfson v StrathclydeRegional Council [1978] SLT 159 (at 160) Lord Keith of Kinkel said, in approving the reasons for the judgment appealed from, that the separate legal status of a limited company and its incorporators must, as held in Salomon v A Salomon & Co Ltd, normally receive full effect in relations between the company and persons dealing with it. His Lordship referred to a passage in the judgment of Ormerod LJ in Tunstall v Steigmann[1962] 2 QB 593 at 601 to the effect that any departure from a strict observance of the principles laid down in Salomon v A Salomon & Co Ltd has been made to deal with special circumstances when a limited company might well be a facade concealing the true facts.

This passage was discussed by Dr Rixon in an article “Lifting the Veil between Holding and Subsidiary Companies” in 102 LQR 415. The learned author observed (at 423):
‘That the corporator has “complete control of the company” is not enough to constitute the company a mere facade; rather that term suggests, in the context, the deliberate concealment of the identity and activities of the corporator. Certainly the term calls to mind expressions used by the Court when lifting the veil in (cases which are then cited), all cases in which the company was formed in order to enable the corporator to do through, and under the cover of, the company what he might not do openly and in person.’
125. That passage was followed in Al-Shennag v Statewide Roads Ltd[2008] NSWCA 300 at [41] (Tobias JA, Beazley and Bell JJA agreeing).
126. If control were sufficient to disregard corporate personality, then it would apply in the large majority of cases of wholly owned subsidiaries. That is not the law.”
The respondent otherwise correctly referred to the grouping provisions found in Part 7, Divisions 2A and 2B of the 1987 Act. These provisions do not apply in the present case as the total wages paid by the respondent are less than the amount provided in s 175D(2)(c)(i) of the 1987 Act. I agree with the respondent’s submissions that when the grouping provisions apply there is a “policy acknowledgement in these provisions in the legislation that there might be within a group some kind of commonality of employment”.[53]
[53] T, p 52.
Another example that supports the proposition that “legal entities should be treated separately”[54] is Schedule 1, clause 1 of the 1998 Act. That provision recognises that closely related legal identities remain distinct legal entities. The respondent otherwise acknowledged that this provision did not apply because there was no “temporary arrangement” on the facts of this case.
[54] T, p 54.
The applicant’s submission that the legal entities were a fiction was undeveloped and no alternative proposition was made as to what followed if the submission was accepted. Furthermore, for reasons articulated later, there was no basis to suggest nor was it alleged that the business arrangements were a sham.
I accept the respondent’s submissions that the various companies had independent legal identities. The applicant’s submissions on this issue are rejected.

When Mr Sara contracted the COVID-19 virus causing personal injury

As previously noted, the respondent accepts that Mr Sara contracted COVID-19 between 15 and 23 July 2020. In submissions, counsel narrowed this timeframe to the period from when Mr Sara left Sydney until when he complained of symptoms on 18 July 2020.[55]
[55] T, pp 3-4.
On 15 July 2020 Mr Sara travelled by car from his family residence on the Northern Beaches to Sydney Airport.[56] Mrs Sara tested negative to COVID-19 on 24 July 2020.[57] The limousine driver who conveyed Mr Sara from his residence to Sydney Airport did not test for COVID-19 as he did not suffer from any symptoms.[58]
[56] Application, p 11.
[57] Application, p 80.
[58] Application, p 102.
Mr Sara left Sydney around 10.30 am (Australian Eastern Standard Time) and travelled to New York via San Francisco. He cleared United States Customs in San Francisco[59] and boarded a flight to Newark at approximately 8.35 am (Pacific Daylight Time) arriving in Newark shortly after 4 pm (Eastern Daylight Time).[60] All subsequent references to times are in Eastern Daylight Time.
[59] Application, p 313.
[60] Application, p 305.
Upon disembarking, Mr Sara travelled by taxi from Newark Airport, probably to his hotel situated in New York (the Holiday Inn).[61]
[61] Application, p 372.
Around 7 pm, Mr Sara took an Uber ride from 245 Barclay Street, New York to a place near the apartment of Dr Candice Zemnick.[62]
[62] Application, p 338.
Mr Sara arrived at Dr Zemnick’s apartment around 7.30 pm. Dr Zemnick’s stated that
[63] Application, p 21.
[64] Application, p 345.
Mr Sara did not appear unwell during this time.[63] He then travelled by Uber to an unspecified address in New York, arriving at 7.24 am.[64]
At around 10 am Mr Sara spoke to Dr Constantine Stavrinoudis. The conversation most likely involved attempts to coordinate meetings at either Mr Sara’s office or Dr Stavrinoudis’ rooms at the New York Smile Institute to review patient cases.[65] Plans were then made to have dinner that night.
[65] Application, p 63.
At around 6 pm there was a text message exchange between Mr Sara and Dr Stavrinoudis. Dinner was arranged and Dr Stavrinoudis advised Mr Sara to bring a mask to which Mr Sara replied:[66]
“I have masks, but I hate them”.
[66] Application, p 64.
Mr Sara’s dislike of wearing a mask is consistent with the email correspondence on 15 and 16 July 2020 when he responded to an invitation by questioning whether he would need to wear a mask at an indoors meeting.[67]
[67] Application, p 396.
Dr Stavrinoudis subsequently collected Mr Sara in front of his hotel. Mr Sara was not wearing a mask and Dr Stavrinoudis advised Mr Sara to get one. Mr Sara returned to his hotel and came back about 10 minutes later wearing a surgical mask.
Dr Stavrinoudis and Mr Sara then had dinner with Dr Marion Brown at a table outside a restaurant. At the conclusion of the dinner Dr Stavrinoudis returned Mr Sara to his hotel. He stated that during the evening he did not observe Mr Sara to display any COVID-19 symptoms and Mr Sara did not “complain of any fever or fatigue”.[68]
[68] Application, p 66.
Dr Marion Brown is a privately practising prosthodontist in New York and an Assistant Clinical Professor on the Faculty of Prosthodontics and Implant Dentistry at the Columbia University College of Dental Medicine.[69] Dr Brown’s evidence was similar to Dr Stavrinoudis’ evidence.[70]
[69] Application, p 114.
[70] Application, p 114.
Dr Brown undertook four separate COVID-19 tests in 2020 which were all negative.
Dr Stavrinoudis underwent and returned a negative COVID-19 test on 23 July 2020.
On 17 July 2020 at around 9.20 am Mr Sara left the Manhattan lab and travelled to the office of Dr Daniel Budasoff returning around 10 am.[71]
[71] Application, pp 353, 361 and 408-412.
Between approximately 1.30 pm and 6pm Mr Sara and Mr Thomas Vasquez moved laboratory equipment and office furniture from the Manhattan Lab to the Mt Vernon Lab. They were assisted for part of the time by Dr Zemnick. Masks were worn throughout this time.[72] Mr Vasquez stated that Mr Sara did not appear to be “fatigued, tired, lethargic or ill in any way” and was engaged in physical activities, chatting and laughing.[73]
[72] Application, pp 55-57.
[73] Application, p 57.
Dr Zemnick’s evidence is consistent with that given by Mr Vasquez.[74]
[74] Application, p 23.
Mr Vasquez was subsequently advised by Dr Zemnick that Mr Sara was showing signs consistent with having been infected with COVID-19. On 24 July 2020 Mr Vasquez tested positive for COVID-19.[75]
[75] Application, p 57.
At the conclusion of the relocation of the goods and equipment, Mr Sara and Dr Zemnick travelled by bus to Dr Zemnick’s apartment.[76] They wore masks on this trip.
[76] Application, p 23.
On 18 July 2020 Mr Sara worked at Dr Zemnick’s apartment. That work included discussions on:[77]
·        the establishment of the White Plains Clinic by Stoneglass to complement its
Mt Vernon Lab;
·        the potential agenda of a meeting with Dr Nurit Fogel of Columbia’s University College of Dental Medicine that was scheduled for 20 July 2020; and
·        Stoneglass software and its incorporation into various university curricula.
[77] Application, p 23.

At that time Mr Sara complained of symptoms consistent with having been infected with COVID-19. Dr Zemnick stated:[78]
“Similar to the day before, Georges appeared to me to be fine except for the
occasional yawn or comment such as,"/ think the jetlag's hitting me a bit". Georges
was not coughing and he didn't look feverish. We managed to get through a good
amount of this work during the day.”
[78] Application, p 23.

Mr Sara returned to his hotel that evening.[79]
[79] Application, p 368.
On 19 July Mr Sara communicated with Dr Zemnick by text message. He complained of a cough combined with fatigue.[80] His condition, evidenced by texts to Dr Zemnick, deteriorated over the following days. Mr Sara did not leave his hotel until he was transported by an ambulance on the morning of 23 July 2020.[81]
[80] Application, p 23.
[81] Application, p 872.
Mr Sara’s condition deteriorated while he was in his hotel room. He advised Dr Zemnick on 22 July 2020 that he would get tested for COVID-19. Dr Zemnick had similar concerns and was tested that day. She tested positive for COVID-19 on 23 July 2020.[82]
[82] Application, pp 24-25.
Dr Zemnick started feeling ill on 20 July 2020 which she initially described as a “tickle in the back of [the] throat”. On 21 July 2020 Dr Zemnick developed a cough.
Dr Steve Flecknoe-Brown, Haematologist and Infectious Disease Specialist, provided a report dated 3 February 2021.[83] The doctor noted that the median range of the incubation period of COVID-19 is 4.9-7 days with a range of 1-14 days. He noted that “testing in the incubation period before symptoms have developed may not detect infection”.
[83] Application, p 229.
Dr Flecknoe-Brown, based on the history of various witnesses, opined that those symptoms commenced on 18 or 19 July. He opined that the disease was acquired “either on the trip across to New York or after he arrived in New York.”[84] The doctor noted that the Crossroads Hotel outbreak was only beginning to develop in Sydney whereas “New York was in the grip of a rapidly-blooming outbreak at that time.”[85]
[84] Application, p 233.
[85] Application, p 234.
Dr Flecknoe-Brown opined that the rapid progression of Mr Sara’s symptoms was within the most common 3-5 incubation period between acquiring the infection and developing symptoms.[86] He concluded that it was “more likely than not that the late Mr Georges Sara acquired COVID-19 on his arrival in New York on 15 July 2020.[87]
[86] Application, p 233.
[87] Application, p 235.
I accept Dr Flecknoe-Brown’s uncontradicted opinion that Mr Sara first developed COVID-19 symptoms, probably on 18 July 2020, when he complained of fatigue.
The timing of when Mr Sara contracted the COVID-19 virus requires the drawing of inferences from various underlying facts. The principle of when an inference can be drawn is well settled.
In Caswell v Powell Duffryn Associated Collieries Ltd [88](Caswell) Lord Wright stated:[89]
“Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty, as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.”
[88] [1940] AC 152.
[89] At 169-170.

This passage has been frequently applied. Examples of its application in New South Wales include Seltsam Pty Ltd v McGuiness[90] and Council of the City of Liverpool v Turano.[91]
[90] [2000] NSWCA 29 (Seltsam) at [87].
[91] [2008] NSWCA 270 at [405].
As Spigelman CJ stated in Seltsam citing Layton v Vines,[92] the “test is whether, on the basis of the primary facts, it is reasonable to draw the inference”.[93]
[92] [1952] HCA 19; (1952) 85 CLR 352 at 358
[93] Seltsam at [88].
Mr Sara had travelled on a plane from Sydney and transited in San Francisco before travelling to New York. Common human experience suggests that during this period Mr Sara would have interacted with a large number of people. An attachment to Dr Flecknoe-Brown’s report recognises that people at increased risk of exposure include those travelling both internationally and domestically to areas with a higher prevalence of COVID-19.[94]
[94] Application, p 244.
The evidence also establishes Mr Sara’s dislike and disinclination of wearing masks in circumstances where he was in a country where there was a much higher risk of exposure to COVID-19 at the time.
It is likely that Mr Sara infected Mr Vasquez rather than Mr Vasquez infecting Mr Sara. This is because their interaction occurred on 17 July and Mr Sara developed symptoms on 18 July. I accept Dr Flecknoe-Brown’s opinion on the incubation period noting that symptoms for severe cases typically start to develop “two to three days after the infection”. Based on this evidence the one-day period is at the very edge of the range of the incubation period and it is unlikely symptoms would have developed in such a short period if Mr Vasquez had infected Mr Sara.
Dr Zemnick also tested positive for COVID-19. Whilst there is a possibility that Dr Zemnick infected Mr Sara with COVID-19, this is unlikely for the following reasons:

·        Mr Sara travelled to New York which exposed him to a large number of people over a 24-hour period in a place where there was a rapidly worsening outbreak;
·        Mr Sara’s disclination of wearing masks;
·        that the travel period from Sydney to New York, rather than subsequently, is more consistent with the incubation period and the initial development of symptoms by Mr Sara on 18 July;
·        that Mr Sara first developed symptoms two days prior to Dr Zemnick; and
·        Dr Zemnick stated that she wore “a surgical mask at all times”[95] when not in her office or at home.

[95] Application, p 22.

Whilst not the subject of express medical evidence in this matter, there are suggestions in the evidence from the various experts such as Dr Brown, Dr Stavrinoudis and Dr Zemnick that masks should be worn. The obvious inference from their views is that masks should be worn to limit or prevent the spread of COVID-19. The attachments to Dr Flecknoe-Brown’s report also refer to the virus being spread by aerosol-generating procedures.[96] Common sense would suggest that mask wearing reduces the chances of spreading and contracting the virus.
[96] Application, p 242.
When pressed on the timing of the occurrence of the COVID-19 infection, the respondent did not “cavil” with the probable inference that Mr Sara was exposed during the plane trip from Sydney to New York which included the stopover in San Francisco.[97]
[97] See the discussion at T, pp 102-105.
For these reasons I am satisfied on the balance of probabilities that Mr Sara was exposed to and contracted the COVID-19 virus during the period of travel from boarding his flight at Sydney Airport until his arrival at the Holiday Inn in New York.
The applicant submitted that the entry of the COVID-19 virus into the body caused a pathological change by causing strokes, heart attacks and the destruction of the lungs. This constituted an injury within the meaning of s 4(a) of the 1987 Act.[98]
[98] T, pp 44 – 45.
Given the concession set out later in these Reasons, this aspect of the case was not the subject of a contrary submission. However, considering Dr Flecknoe-Brown’s opinion that the COVID-19 virus caused profound respiratory failure, I accept that this amounts to an identifiable pathological change and constitutes a “personal injury” within the meaning of
s 4(a) of the 1987 Act.[99] Other evidence established further pathological changes were caused by the virus including strokes and heart attacks.

[99] See the discussion by Snell DP in Ky v Blue Leaf Food Group Pty Ltd [2016] NSWWCCPD 55.

The nature of the work undertaken in the United States from 15 July 2020 to 23 July 2020

Due to COVID-19 restrictions, Mr Sara required permission from the Department of Home Affairs to travel overseas. In a declaration submitted on 2 July 2020, Mr Sara stated:[100]
“Please explain why you need to travel outside Australia: Since November 2015, I have been traveling to the United States selling and demonstrating our dental technology every second month. Our global export head office is in the 7th World Trade Centre in Manhattan. Part of my roll is to install our Australian locally developed dental technology at Dental Universities that teach our digital workflows to dental students, and we get to manufacture dental prosthetics in Australia and then we export back to the US. Our first installation was at Columbia University in Manhattan and they have reopened since the lockdown and our students have returned. We have successfully attained a contract to install our technology at Rutgers university in New Jersey in August and a number of our clients have returned to there private dental surgeries since the lockdown and they need our companies assistant to get back up and running with our technology. Stoneglass has signed a lease in NY also setup a education facility with a dental manufacturing laboratories and its going to take 4 months to be built and I must be present to overlook the complete installation. Its very important to our Australian owned company that I travel and make sure all our businesses are taken care off properly, we have worked very hard during the pandemic to continue to grow our export business to the United States so we can keep all our Australian local employees employed. Thank you for your consideration in this request, Sincerely yours, Georges Sara, Director.”
[100] Respondent’s late Application, p 4.

Mr Sara stated that he intended to return to Australia on 17 October 2020.
The declaration refers to “a contract to install our technology at Rutgers university”. An unsigned contract between Rutgers University and Stoneglass US was attached to the declaration.[101] The contract was subsequently signed by Mrs Sara on 13 August 2020.[102]
[101] Respondent’s late Application, p 12.
[102] Application, p 472.
Mrs Sara described the work undertaken by Mr Sara in the United States in the following terms.[103]
[103] Application, p 10.
“34. In the past few years, Stoneglass Group managed to secure contracts for its software at the following universities in the USA:
a. Columbia University, New York City;
b. Rutgers, State University of New Jersey;
c. Virginia Commonwealth University; and
d. The University of Western Virginia.
35. Georges was made an Honorary Professor at the Columbia University School of
Dentistry and an Adjunct Professor at Rutgers University School of Dental Medicine.
36. In addition to the universities, Georges also managed to secure dental lab work from some more established New York dentists - but whilst we are grateful for these
contracts, they did not generate enough income to justify Stoneglass staying in the
USA. The larger clients such as the universities were the ultimate marketing goal.”
Dr Constantine Stavrinoudis is a dentist and prosthodontist practising out of the New York Smile Institute in Manhattan and the Northshore Prosthodontic Associates on Long Island, New York. His evidence concerning his interactions with Mr Sara is as follows:[104]
[104] Application, pp 62-63.

“8 I first met Georges in or around late 2017 when I commenced my studies at the
Columbia University College of Dental Medicine (Department of Prosthodontics) for
a Masters of Science (thesis based) and Certificate of Prosthodontics.
9 Throughout my studies, I had, what I would consider to be, frequent and regular
contact with Georges.
10 Georges was the Director of Stoneglass Industries and his company had supplied
the software, scan boxes and other dental laboratory equipment used by the students
of my program.
11 In addition to his supplying the software and equipment, my experiences with
Georges throughout the program extended to his training of students, such as myself,
on the broad (and highly specialised) application of Stoneglass software to patient
cases.
12 Whilst in New York, he would routinely make himself available for consultation in the
clinical laboratory.
13 He would occasionally demonstrate the application of the Stoneglass software and
its interface with the scan boxes and other equipment.
14 Sometimes he would bring complex patient cases from Stoneglass into the labs for
discussion amongst the students or provide his clinical opinions in consultation upon
patient case of the University.
15 His involvement also included sitting 'chair-side' during the conduct of dental
procedures at the College for the purpose of supervising the implementation of the
software and the handling of any protheses that had been fabricated by his lab for
the procedure.
16 We would sometimes meet outside of the University for the purposes of consultation
upon my private patients or simply to socialise.
17 However such meetings generally devolved into shoptalk, revolving around
discussion of technological developments and applications of Stoneglass' digital
dental resources to my dental practice.”

Mr Sara sent various emails to Rutgers University and Virginia Commonwealth University whilst he remained isolated in his hotel room[105]. The signature by Mr Sara states that it was sent from both Stoneglass US and Stoneglass Australia.
[105] Application, p 378-9
I reject the respondent’s submission that the presence of both companies is explained on the basis that it was “convenient to have the one email signature”[106]. The logical conclusion from the fact that Mr Sara signed the documentation on behalf of both Stoneglass US and Stoneglass Australia is that the work was done for both companies. This is otherwise confirmed by the statement in one of the emails from Mr Sara to “[get] my Sydney office to confirm that payment was made”.[107]
[106] T, p 67, line 9.
[107] Application, p 385.
Other correspondence concerned the renting of premises at either Manhattan or Mount Vernon.[108] Whilst this documentation related to Stoneglass US renting premises, the email correspondence from Mr Sara also included both Stoneglass Australia and Stoneglass US.
[108] Application, pp 389 – 402.
There was also email correspondence during this period between Mr Sara and
Mr Littlefair.[109] Mr Littlefair was working in the Sydney office. I reject the respondent’s submission that this was personal email correspondence as Mr Littlefair was advising
[109] Application, p 406 - 407.
[110] See T, p 70.
Mr Sara that he had been off work due to sickness.[110]
Various emails passed between Mr Sara and Mr Budasoff. Again, these emails were sent under the name of Mr Sara from both Stoneglass Australia and Stoneglass US.[111]
[111] Application, pp 409 - 414.
The respondent submitted that with two minor exceptions, the work done in the hotel room was solely for Stoneglass US. That characterisation failed to acknowledge that many of the emails sent by Mr Sara acknowledged his status for both Stoneglass Australia and Stoneglass US. The respondent’s submission otherwise implicitly acknowledges that some of the work was referable to Stoneglass Australia.
Whilst work was done for Stoneglass US, some of the work was undertaken for Stoneglass Australia. The conversation with Mr Littlefair showed that Mr Sara was doing some work exclusively as the respondent’s employee. The communication with a Chinese company falls under a similar category. These communications are inconsistent with the suggestion that
Mr Sara was on annual leave and/or otherwise not performing work for the respondent. They establish Mr Sara’s continuity of employment with the respondent.

Other documents pertaining to the work performed in the United States

Stoneglass Australia issued invoices to Stoneglass US for “management”. The invoices cover the period prior to and after the period when Mr Sara contracted the virus.[112]
[112] Respondent’s late Application, pp 68-85.
The bank records show payments from Stoneglass US to Stoneglass Australia. One example is the payment of $47,370.91 (Australian dollars) on 17 March 2020.[113] Other examples occurred on 7 October 2020 ($10,000 USD) and 29 December 2020 ($20,000 USD).[114]
[113] Respondent’s late Application, p 235 and p 350.
[114] Respondent’s late Application, p 282 and p 296 and the respondent’s concession at T, p 36, line 33 and T, p 38 lines 1 – 17.
A corporate travel insurance policy for the 2020/21 year named the insured as “G & S Sara” and covered “Directors, executives and employees of the policyholder” for seven trips to the United States for a “duration 21 days maximum 28 days”.[115] The respondent noted Mr Sara’s trip to the United States was scheduled to be longer than this and there was an inference that the trip “was not a journey for the purpose of work to be done for or on behalf of the respondent”.[116]
[115] Respondent’s late Application, p 52.
[116] Respondent’s written submissions, [30].
I reject this submission for several reasons although I accept that Mr Sara intended to be in the United States on this trip for longer than 28 days. First, the document is taken out in the name of the respondent and covers “directors and employees” for up to seven trips to the United States. If any inference was to be drawn from this, it was supportive of the assertion that Mr Sara was present as the respondent’s employee as the document specifically covers employees of the respondent. Secondly, if the trip was intended to be longer than 28 days, then either the policy did not cover Mr Sara, or he was only covered for the first 28 days. The fact that Mr Sara was going to be overseas for a longer period does not mean, as the respondent suggested, that Mr Sara was present for another entity for which there is no evidence of any protection under another policy. Thirdly, the policy expressly anticipates that directors and employees of the respondent would travel to the United States, which is suggestive that the respondent anticipated that its employees would travel to that country.
I decline to draw the inference that the terms of the policy meant that Mr Sara was in the United States for work other than for the respondent. On its face the policy covered employees of the respondent but may have included a term that potentially excluded Mr Sara from its protection.
In the overall scheme the policy is not particularly relevant, but it is otherwise consistent with the fact that the respondent obtained travel insurance for its employees for travel to the United States.
The Rutgers University contract was in draft form when submitted to the Department of Home Affairs and subsequently executed by Mrs Sara. It shows a contractual relationship with Stoneglass US which is consistent with the various invoices issued by Stoneglass US to Rutgers University.[117]
[117] Application pp 500, 502, 503, 506.

The evidence also establishes invoices from Stoneglass US to Columbia University and payments by the university.[118] The same position applied with respect to Stoneglass US and Virginia Commonwealth University.[119]
[118] Application, pp 495 – 497, 499.
[119] Application, pp 379 – 382, 459, 486, 498, 501.
A HIPAA business associate agreement, described by counsel as the equivalent of the Health Records and Information Privacy Act 2002 in New South Wales, was signed by
[120] T, p 94.
Mr Sara as a director of Stoneglass Australia. I adopt counsel’s submission that “it looks like it is saying that Stoneglass Australia is the business associate of Stoneglass US and everyone will comply with HIPAA rules”.[120]

Mr Sara’s employment status in the United States

The starting point is the respondent’s concession that Mr Sara was the respondent’s worker “at times” but not at the relevant time.[121]
[121] T, p 5.
The documentary evidence establishes that Mr Sara was employed by the respondent. It also does not establish that there was any change in the employment relationship when
Mr Sara travelled to the United States.
The 2019/20 taxation return shows that Mr Sara was paid gross wages by the respondent in the amount of $80,740.[122] Mr Sara was also paid income in the sum of $10,500 from “trusts”.[123]
[122] Application, p 548.
[123] Application, p 552.
The respondent referred to the distribution from the Sara Family Trust in Mr Sara’s 2020 tax return in support of the proposition that “Mr Sara was receiving and could receive a benefit from the Trust”.[124] However, it was subsequently accepted by the respondent’s counsel that there was no payment disclosed in the Stoneglass US tax return and that it was more likely that such a payment came from Stoneglass Australia to the family trust.[125]
[124] T, p 63.
[125] T, p 63 line 28 - p 64, line 4.
The respondent issued payslips to Mr Sara on a fortnightly basis. The payslips for the period from 30 May 2020 to 24 July 2020 show base hours of 75 over the fortnight period.[126] The payslips issued after 24 July 2020 show that Mr Sara was paid “sick pay”.[127]
[126] Application, pp 225 – 228.
[127] Application, pp 216 – 224.
The 2019 taxation return also names the respondent as Mr Sara’s employer.[128]
[128] Application, p 530.
The respondent’s 2019 and 2020 company taxation returns[129] describe the business as “Personnel management service”. The majority of the respondent’s expenses were salary, wages and superannuation payments.[130]
[129] Application, pp 567 – 587.
[130] Application, p 581.
The income tax return of Stoneglass US for the year ending 31 December 2020 show that it made a loss of $102,363 and did not pay any salaries.[131]
[131] Respondent’s late Application, pp 88-96.
The respondent’s submission that Mr Sara may have been paid annual leave whilst he was in the United States is rejected for the following reasons. First, the payslips do not differentiate between the type of work performed in the period prior to 15 July 2020 and work undertaken from that day until 24 July 2020. The payslips state “base hourly” and also refer to “overtime meal allowance”, which is inconsistent with Mr Sara being on annual leave. Secondly, the payslips accurately show a change after 24 July 2020 when Mr Sara was paid sick leave.

Mrs Sara was and is a director of the respondent. Mrs Sara stated that Mr Sara was employed by the respondent.[132]
[132] Application, pp 8-9.
Mr Tim Begovic has been the accountant and tax agent for Stoneglass Australia and the respondent for 30 years. Mr Begovic stated:[133]
“14. G & S Sara Pty Ltd pays the employees’ salaries, wages and on costs and then charges a monthly management fee to Stoneglass Dental Laboratory Pty Ltd for whom the work is performed. G & S Sara Pty Ltd has no other business operations nor provides and services outside the group.
15. Georges Sara is not an employee of, nor is individually contracted to any organisation or university in the United States of America and receives no personal remuneration for services provided from any organisation or university in the United States of America.”
[133] Application, pp 194-5.

Mrs Sara signed a declaration of actual wages dated 8 July 2020 on behalf of the respondent for the 2019/20 financial year. The declaration specified that the respondent employed 10 workers for wages totalling $571,110.[134] I note that this figure is similar to the amount specified by the respondent in the 2020 taxation year which declared “total salary and wage expenses” at $570,827.[135]
[134] Respondent’s late Application, p 393.
[135] Application, p 581.
The declaration was forwarded to iCare, which is the brand of Insurance & Care NSW and acts for the Workers Compensation Nominal Insurer.[136]
[136] Application, p 393. See also Part 7 of the 1987 Act.
Based on the evidence from the accountant set out above, and given the fact that Mr Sara was paid as an employee of the respondent, as well as the similarity of the amount declared to iCare with the respondent’s 2020 corporate taxation return, I infer that Mr Sara’s wages were part of the actual total wages declared by the respondent to the workers compensation insurer.
The respondent relied on the work that was performed in the United States which is summarised earlier in these Reasons.
I was not referred to any legal authority on the issue of which entity employed Mr Sara.
[137] See Houshmand v United Formwork Pty Ltd [2017] NSWWCC 276.
I have considered these legal principles previously and repeat below what has been written elsewhere.[137]
In Pitcher v Langford[138] the Court was required to determine which of two parties was the employer of the worker. There was no dispute that the worker was employed by one of the two parties. The worker was part of a gang of shearers initially in the employ of Pitcher. These workers would move from property to property for the purpose of shearing sheep. Approximately one week prior to being due to shear at the Langford property, there were discussions between Pitcher and Langford of a change in the arrangements to the engagement of the shearers. These discussions arose due to Pitcher receiving a recent increase of 28% in his workers compensation premium.
[138] (1991) 23 NSWLR 142 (Pitcher).
By reason of an agreement to the change in the arrangements, Langford took a number of steps. He advised his workers compensation insurer that he was employing the shearers, he paid the premium for the extra workers and paid money directly to the worker for his work. The final payment by way of cheque to the worker described him as his “employee”.
The trial judge held that “nothing really changed” insofar as the employment arrangements were concerned and held that, despite the change in the payment arrangements to the worker, Pitcher remained the employer. Several factors indicated that the original employment arrangement between the worker and Pitcher continued, including the supply of rations and Langford’s answers to a series of questions regarding Pitcher’s right to hire and fire the shearers. In these circumstances, Kirby P held that there was evidence upon which the trial judge could make a determination that Pitcher was the employer and no question of error of law by reason of lack of evidence arose.[139]
[139] (1991) 23 NSWLR 142 at 147.
Priestley JA stated:[140]

“The trial judge's reasoning does not appear to have been based on the alterations in the arrangements for the August shearing being in fact shams, at least in the usual sense, for a description of which see Esanda Ltd v Burgess[1984] 2 NSWLR 139 at 153-154. Rather, his reasoning was on the basis that whatever the parties had agreed between themselves, as evidenced by various documents which came into existence, they in fact conducted themselves not pursuant to their agreement, but upon the basis of the arrangements in force upon earlier shearings. This kind of approach is sanctioned by such authoritative cases as R v Foster; Ex parte Commonwealth Life (Amalgamated Assurances) Ltd[1952] HCA 10; (1952) 85 CLR 138, especially at 151 and Ex parte Robert John Pty Ltd; Re Fostars Shoes Pty Ltd[1963] SR (NSW) 260; 80 WN (NSW) 408.”

[140] at 154-5.

During the course of his reasons, Handley JA stated:[141]
[141] at 161.
“His Honour then noted (at 8) that here ‘the question is by whom the person is employed, it not being disputed that he was a worker employed by either of them or perhaps by both’ the owner and the contractors.

In my opinion the trial judge did not err in holding that the courts are entitled,
independently of any statutory power in that behalf, to consider the reality of purported contractual arrangements. No case was sought to be made at the trial that the written agreement between the owner and the worker was a sham: compare Snook v London and West Riding Investments Ltd [1967] 2 QB 786 at 802 per Diplock LJ and Cam & Sons Pty Ltd v Sargent (1940) 14 ALJ 162. Furthermore no such case was sought to be made in this Court either. But independently of the sham principle the courts can consider what the parties to a contract have done, in order to see whether it has been ignored or abandoned.

In R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd [1952] HCA 10; (1952) 85 CLR 138, in a case where the prosecutor alleged that its insurance canvassers employed under a written agreement were independent contractors because the agreement so provided, Dixon, Fullagar and Kitto JJ said (at 151 and 155):

‘… if in practice the company assumes the detailed direction and control of the agents in the daily performance of their work and the agents tacitly accept a position of subordination to authority and to orders and instructions as to the manner in which they carry out their duties, a clause designed to prevent the relation receiving the legal complexion which it truly deserves would be ineffectual … The case for the respondent union simply is that [the agreement] does not represent the reality of the relation in practice of the agents and the prosecutor company … [the evidence fails] to exclude to our satisfaction the possibility that the real relation between some or all of the agents and the prosecutor company in their actual work, week in week out, is in fact that of employer and employee, whatever the agreement may say.’

This decision was applied in Ex parte Robert John Pty Ltd; Re Fostars Shoes Pty Ltd [1963] SR (NSW) 260; 80 WN (NSW) 408, in determining whether a deed of ‘licence’ between the parties prevented their relationship being that of landlord and tenant. Sugerman J said, quoting from earlier authority (at 269; 414): ‘… It is not necessary to go so far as to find the document a sham. It is simply a matter of finding the true relationship of the parties.’
Later he said (at 272; 416):
‘In determining whether the fair rents board had jurisdiction … it is necessary to have regard to the real character of the relationship of the parties if this be found, as their relations worked out in fact, to have differed from the relationship which might be taken as intended to be constituted by the deed of licence if considered alone.’
In my opinion this is what the trial judge did in the present case. He held (at 5) that ‘no actual difference could be discerned between how the operation was carried out on that occasion’ from how it had been carried out on earlier occasions when the relationship of employer and employee undoubtedly existed between the contractors and the shearers. He said (at 9) ‘that nothing really changed’ and (at 10) that ‘it was business as usual’. To these findings must be added the finding that the signing of the written contract by the owner (at 9) was a ‘mere formality’".

This passage was applied by Brereton J in Sturesteps v A G McGrath[142] and referred to by Katzmann J in Coghill v Indochine Resources Pty Ltd.[143]
[142] [2010] NSWSC 169.
[143] [2015] FCA 377 at [26].
Pitcher was considered by the Court of Appeal in Shaw v Bindaree Beef Pty Ltd.[144] In the course of his reasons Giles JA stated:[145]
“The result in Pitcher v Langford turned on its own facts, and on the need for error in point of law. There is no doubt, however, that without going so far as to find a sham the ‘reality of purported contractual arrangements’ (per Handley JA) can be considered, and the case illustrates that it can extend to the identity of a contracting party and that it can be found that a purported contracting party was not in reality party to the contract even where a written contract gives it as the party.”
[144] [2007] NSWCA 125.
[145] at [59], Spigelman CJ agreeing.

Similar observations were made by Edmonds J in Gothard, in a matter of AFG Pty Limited
(in liq) v Davey[146] when his Honour stated:[147]
“Unsurprisingly, the outcome in cases which have been concerned with identifying an employer of a person or group of persons from two or more possibilities, whether from within the same group of companies or otherwise, has turned on their own facts and, in consequence, the case law in this area is of limited assistance. Nevertheless, it is possible to discern certain general principles that the courts have applied in the identification process. The courts have adopted the position that in undertaking this exercise, they are entitled to take a wide view of the putative relationship, beyond the terms of the contractual documentation, to examine how the parties conducted themselves in practice and whether, where there is contractual documentation, the reality of the situation accords with the terms of that documentation or whether it points to another entity being the employer.”
[146] (2010) 80 ACSR 56.
[147] at [52].
In Re C & T Griter Transport Services Pty Ltd; Ex parte Fitzgerald[148] Finn J set out a number of principles with respect to the identification of an employer. His Honour stated:[149]
[148] [2004] FCA 1148 (Griter Transport).
[149] Griter Transport at [20].

“20. The principles to be applied in the identification of the employer of an employee where there are two or more possible employers, are reasonably well settled. For present purposes I would note the following:
(1) A contract of service cannot be transferred by one employer to another or novated as between them without the employee’s consent: Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014; Re Coogi Nominees Pty Ltd (Administrators appointed); McCluskey v Karagiosis [2002] FCA 1137; (2002) 120 IR 147. Questions of estoppel apart: Smith v Blandford Gee Cementation Co Ltd [1970] 3 All ER 154; the employee’s consent must be a real one whether express or implied and is "not to be raised by operation of law": Denham v Midland Employers Mutual Assurance Ltd [1955] 2 QB 437 at 443.

(2) The totality of the circumstances surrounding the relationships of the various parties including conduct subsequent to the creation of an alleged employment relationship is relevant to the assessment to be made: Romero v Auty (2001) 19 AGLC 206 at [10] and [42]-[44].

(3) Documentation created by one or more of the parties describing or evidencing an apparent employment relationship will be relevant to, but not necessarily determinative of, the true character of that relationship: Pitcher v Langford (1991) 23 NSWLR 142; Marrs Fabrics Pty Ltd & Nathan Wholesale Fabrics Pty Ltd v Whipps (1991) 33 AILR 167. In determining the identity of a disputed employer, the Court is entitled to consider "the reality of purported contractual arrangements": Dalgety Farmers Ltd t/a Grazcos v Bruce, NSWCA, 3 August 1995. The documentation may have been brought into existence for other purposes, for example, tax minimisation or the reduction of insurance premiums, without reflecting the reality of the parties relationship: ibid; Pitcher v Langford, at 149; Sharrment Pty Ltd v Official Trustee in Bankruptcy [1988] FCA 179; (1988) 18 FCR 449 at 454.

(4) Conversations and conduct at the time of the alleged engagement of the employee is of considerable significance: Romero, at [9]. The beliefs of the employees as to the identity of their employer is admissible and is entitled to weight: Pitcher v Langford.

(5) In cases of the engagement of new employees to work in a business in which a number of separate corporate entities participate otherwise than as partners:

"... it was open to those controlling the business to select which company should be the employer provided that the selection was consistent with the financial and administrative organisation of the business and was not otherwise a sham."

See Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd, FCA, Ryan J, 19 November 1998.”

The accountant’s evidence is consistent with the documents that show Mr Sara’s pay, his taxation returns, and the fees charged by the respondent to Stoneglass Australia for “management fees”.[150] This evidence is also consistent with Mrs Sara’s evidence, who, as a director of the respondent, stated that it employed Mr Sara.
[150] Applicant’s late Application, pp 44 – 61.
The applicant submitted and I agree that Mr Sara’s employment involved his “technical expertise” as a dental technician.[151]
[151] See the evidence of Mrs Sara, Application, p 8.

Whilst there was no written contract of employment, Mr Sara, the respondent and Stoneglass Australia conducted themselves on the basis that Mr Sara was employed by the respondent. There was no suggestion in the submissions that the payslips, taxation returns, and payment of workers compensation premiums were a sham.

I have earlier rejected the respondent’s suggestion that Mr Sara may have been on annual leave at the relevant time.[152]
[152] T, p 82 although it is difficult to understand whether this submission was formally made.
To the extent that the respondent submitted that the payslips of themselves were “insufficient”,[153] the evidence establishing continuous employment with the respondent is wider than this.
[153] T, p 83.
The clear objective facts show that the Stoneglass Group was organised in a manner that
Mr Sara was paid as an employee of the respondent.
There was a clear intention by the respondent that Mr Sara remained its employee throughout this period. Nothing changed in those arrangements when Mr Sara travelled to the United States.

I do not accept the respondent’s submission that Mr Sara was present in the United States as a worker employed by Stoneglass Australia. There is no basis to find that Mr Sara’s employment arrangements changed from one in which he was previously engaged by the respondent (which is accepted) to being employed by Stoneglass Australia. The payslips did not show a change in Mr Sara’s employment status and the respondent continued to charge Stoneglass Australia for management fees relating to the provision of workers. I accept the applicant’s submission when commenting on the payslip for the period when Mr Sara was in the United States that:[154]
“Well, that’s what the document says and I don’t have any other evidence to say otherwise.”
[154] T, p 18, line 15.
There is no evidence that Mr Sara consented to a change in his employment status.
The applicant submitted that Mr Sara was the corporate mind of the respondent and was in a position to direct himself as to how he acted.[155] That direction was to “make money” for the Stoneglass Group. Whilst this is an artificial scenario given that Mr Sara was the director of all of the related companies, there is no evidence that the objective intention of the parties changed during the relevant period concerning Mr Sara’s employment status.
[155] T, p 23.

The fact that Mr Sara was a working director meant that many of the indicia such as the right to control, dismiss and delegate will not be present.
In Stephan v Pacesetter Cleaning Services Pty Ltd[156] (Stephan) Rolfe AJA observed that many of the indica where the director was a worker “fall by the wayside”.[157] These observations were applied by the Court of Appeal in Bootle v Barclay[158] when Sackville AJA observed that the significance of the decision in Stephan “lies in the approach taken by characterising the relationship between a company and a director and shareholder where the director provides services to the company and effectively controls the company.”[159]
[156] [1995] NSWCA 455; 12 NSWCCR 19.
[157] Stephan at 26-27, Kirby ACJ and Cole JA agreed.
[158] [2013] NSWCA 142 (Bootle).
[159] Bootle at [68], Meagher JA and Ball J agreed.
In my view there is no basis to conclude that the employment arrangements changed from the accepted basis that Mr Sara was employed by the respondent to being employed by Stoneglass Australia whilst he was present in the United States. Indeed, the respondent accepted that there was no evidence that Mr Sara was paid a wage by any company other than the respondent.[160] It otherwise submitted that the only indication that Mr Sara was not employed by the respondent was that he was “also a director of the Stoneglass Australia”.[161] Even that submission was barely pressed.[162]
[160] T, p 51, lines 16 – 20.
[161] T, p 55, line 13.
[162] See the discussion at T, 55 line 31 – T 56, line 28.
Stoneglass Australia paid the respondent a management fee for the work performed by the respondent’s employees.
I conclude that it was the clear objective intention of Mr Sara, the respondent and Stoneglass Australia that Mr Sara was a worker employed by the respondent who would undertake work for the benefit of the Stoneglass Group. The observations of Ryan J in Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd adopted by Finn J in Griter Transport appear particularly relevant to the manner in which the Stoneglass Group organised its administration in providing the respondent as the corporate vehicle for employing Mr Sara.
I also note that earlier in these reasons I rejected the applicant’s submission concerning the artificiality of the corporate entities in this case. The effect of this rejection is that the applicant has the benefit of the financial materials that show that Mr Sara was the respondent’s employee.
That aspect of the respondent’s defence is rejected.
The acceptance by the respondent that Mr Sara was a worker but not at the relevant time is relevant to its submission that the work performed in the United States was solely referable to work undertaken for Stoneglass US.
Whilst it is true that Mr Sara was also in the United States as the President of Stoneglass US, the relevant question is whether he was also present as a worker employed by the respondent.
The findings of fact that Mr Sara was an employee of the respondent and not Stoneglass Australia are also relevant to and adopted in my conclusion that Mr Sara was the respondent’s employee during the relevant period.
The applicant submitted that it was impossible to separate out in any meaningful way the various activities performed by Mr Sara. It was submitted that he was in the United States on a “moneymaking” exercise which had benefitted all the various activities.[163] Mr Hanrahan referred to the continuous interaction between Mr Sara as President of Stoneglass US and his own technical expertise as an employee of the respondent.[164] His role in the United States required “his technical expertise to set up and install” equipment which was part of his employment role with the respondent.[165] I accept that submission although observe that some of the actions also show Mr Sara’s other role as President of Stoneglass US.
[163] T, p 26.
[164] T, p 39.
[165] T, p 44.

The applicant submitted that the 2020 taxation return for Stoneglass US did not show that he received any type of remuneration.[166] I agree with that submission.
[166] T, p 22.
The declaration by Mr Sara to the Department of Home Affairs shows a dual purpose for travelling to the United States. Mr Sara stated in his application that:
“Part of my roll [sic] is to install our Australian locally developed dental technology at Dental Universities that teach our digital workflows to dental students, and we get to manufacture dental prosthetics in Australia and then we export back to the US.”

I reject the respondent’s submission that this declaration shows that the proposed work in the United States was only for Stoneglass US. The declaration shows that work was also being undertaken for Stoneglass Australia.
Whilst the contracts between the various universities were with Stoneglass US, there was a direct relationship between Stoneglass US and Stoneglass Australia because the work was undertaken locally and a direct link with the respondent who provided the workers. There was a clear and direct economic benefit to both the respondent and Stoneglass Australia through Mr Sara securing the work in the United States.
The conclusion that there was a direct benefit to the respondent and Stoneglass Australia is clear from Mr Sara’s declaration as to why he should be allowed to travel to the United States. Mr Sara stated:
“Its very important to our Australian owned company that I travel and make sure all our businesses are taken care of properly, we have worked very hard during the pandemic to continue to grow our export business to the United States so we can keep all our Australian local employees employed.”
The necessity of establishing and maintaining the contacts and contracts in the United States is reinforced by the evidence of Mr Begovic and Mrs Sara who stated that the majority of work was sourced from the universities in the United States.
I do not accept the respondent’s submissions that there is any uncertainty in Mr Begovic’s evidence. I also do not accept the respondent’s submission that the situation is akin to obtaining work from an unrelated or third party. There was a clear close legal relationship between the various companies. Whilst they are separate legal entities, any work that Stoneglass US obtained went directly to Stoneglass Australia and the respondent.
I also accept the evidence of Mr Begovic, to the extent that it is relevant, that consistent with the personal and corporate taxation returns, Mr Sara was not employed by any other entity.[167]
[167] Application, p 195, paragraph 15.
The evidence set out earlier shows work was performed for Stoneglass Australia whilst
Mr Sara was in the United States. Many of the emails were signed on behalf of both Stoneglass Australia and Stoneglass US. That fact cannot be lightly dismissed. Mr Sara otherwise did work exclusively for Stoneglass Australia which included an email to a Chinese company. Whilst the work was done after Mr Sara contracted the virus, that does not diminish the fact that Mr Sara’s employment relationship with the respondent continued whilst he was in the United States.
The respondent correctly submitted that the expectation of a wage at a future point in time may be sufficient to justify an employment relationship[168]. Stephan is authority for that proposition[169]. It submitted that it could be inferred that Mr Sara would have such an expectation and/or would have been paid a wage.
[168] T, p 63, line 26.
[169] At 23E.
I decline to draw the inference that there was an expectation and/or Mr Sara was entitled to receive wages from Stoneglass US. There is no evidence from Mrs Sara or from the accountant that there was such an expectation or proposal. Further, in accordance with the corporate taxation returns, Stoneglass US was losing money.
Mr Sara may in due course have received remuneration as a director/President of Stoneglass US as opposed to the receipt of wages as an employee of that organisation. The inference that Mr Sara may have received an allowance as the President of Stoneglass US is not the same as receiving a wage from that company.
The employment structure that was in place at the relevant time was that Mr Sara was being paid a wage by one entity, that is, the respondent. At some point Mr Sara may have received a payment as the director/President of Stoneglass US rather than a wage. There is no reason to infer that it was more likely that Mr Sara was going to be paid a wage by Stoneglass US. The fact that Mr Sara was being paid a wage by the respondent makes the scenario that there was an expectation that Stoneglass US would pay him a wage less likely.
In those circumstance I decline to infer that Mr Sara would have been paid a wage by Stoneglass US. I am positively satisfied that there was no employment relationship between Mr Sara and Stoneglass US.
I am also positively satisfied that the employment relationship between Mr Sara and the respondent continued throughout the time he was in the United States.
Looking at the totality of the circumstances consistent with the authorities set out earlier[170], the evidence overwhelmingly establishes that Mr Sara was an employee of the respondent whilst he was in New York for the following reasons:
(a)    the Stoneglass group organised its administration in a manner consistent with the respondent being the employer in circumstances where there was no suggestion that this arrangement was a sham: Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd;
(b)    the objective financial material such as taxation returns, payslips, and workers compensation insurance support this conclusion;
(c)    the work performed in the United States was not exclusively for the US company because some of the work was in the name of Stoneglass Australia;
(d)    the respondent and Stoneglass Australia directly benefitted from the work performed in the United States;
(e)    there was no evidence that Mr Sara’s employment was transferred to Stoneglass US and the payslips for the relevant period indicated that the worker was being paid his normal wage by the respondent during this period;
(f)    Mr Sara was not an employee of Stoneglass US and the work undertaken of that entity is more consistent with his role as President/director of that company, and
(g)    other materials such as the travel insurance and the HIPAA business associate agreement refer to either the respondent or Stoneglass Australia.
[170] See [128]-[133].

For these reasons I conclude that Mr Sara was in the United States as a worker employed by the respondent.

Pro hac vice

This issue was raised by myself and can be briefly dismissed.
A servant of a general employer may in some circumstances become pro hac vice the servant of a specific employer. The principle relates to where a third party becomes a temporary employer of a person “whose services have been transferred”.[171]
[171] See The Liability of Employers, Glass et al, 2^nd ed, p 81 citing Mersey Docks & Harbour Board v Coggin & Griffith Ltd [1947] AC 1.
In Oceanic Crest Shipping Company v Pilbara Harbour Services Proprietary Limited Brennan J stated:[172]

"The rule to be derived from Mersey Docks and McDonald is not that two persons cannot be vicariously liable for the same damage or that an employee cannot be the servant of two masters, but that two employers of the same servant who negligently causes damage will not both be liable for the damage if one rather than the other has what Jordan C.J. called `the relevant control': McDonald.”

[172] (1986) 160 CLR 626 at 668 (Brennan J was in dissent although as was noted in Deutz Australia Pty Ltd v Skilled Engineering Ltd [2001] VSC 194 at [106] it did not in any way diminish “his Honour's analysis of the ratio in the cases to which he referred”).

I accept the respondent’s submission that the pro hac vice principle did not apply because there was no temporary arrangement in relation to Mr Sara’s service whilst he was in the United States.[173]
[173] T, pp 77 – 81.

Injury sustained in the course of his employment

The applicant submitted that anything done by Mr Sara in the United States was authorised conduct as he was the operating mind of the company,[174] relying upon Hatzimanolis v ANI Corporation Ltd.[175]
[174] T, p 40.
[175] (1992) 173 CLR 473.

The applicant also referred to the assault cases including Inverell Shire Council v Lewis[176] and cited the following passage:

“It has long been established that injuries caused by deliberate assault may be received in the course of a worker’s employment, whether the assault was committed by a fellow work, by a stranger or even by a virus.
The crucial fact is whether, while assaulted, the worker was doing something that was reasonably incidental to the worker’s employment.”

[176] (1992) 8 NSWCCR 562 at 567.

Whilst the passage has probably been taken out of context by the applicant as it was essentially directed to “assault” cases and the similarity between being assaulted whilst at work and being infected by a virus, the applicant otherwise emphasised that “the employment does not have to be as direct”[177] as the respondent submitted, and it was sufficient that the activities were reasonably incidental to the employment.
[177] T, p 47.

The respondent referred to the plurality in Comcare v PVYW[178] (PVYW) and submitted that the employer was required to induce or encourage the employee to do something or be somewhere in particular to be regarded as being in the course of the employment. In its written submissions the respondent contended that there were “numerous opportunities for Mr Sara to have contracted COVID-19 while he was engaged in activities which were not work related.”[179]
[178] [2013] HCA 41.
[179] Respondent’s written submissions, [40].
I accept the respondent’s submission, based on the principles set out in PVYW, that not all the activities in the United States may be considered as occurring in the course of the respondent’s employment. However, the period of travel to the United States was clearly within the course of the employment with the respondent as that activity was induced and encouraged by the respondent. Consistent with this finding and that Mr Sara was probably infected with the COVID-19 virus whilst he was travelling, Mr Sara sustained injury in the course of his employment with the respondent.

Arising out of the employment/section 9A

The applicant submitted that s 9A of the 1987 Act was established because Mr Sara “was required to be in New York at all at a time when there was a pandemic occurring”.[180] It was submitted that it did not matter when the exposure occurred between 15 July and 23 July because Mr Sara was “required” to be in New York because of his employment.[181]
[180] T, p 42.
[181] T, p 43.
The respondent did not address this issue because of its concession, set out below, that
s 19B was established if Mr Sara sustained injury in the course of his employment.
Given the respondent’s concession it is unnecessary to address this aspect of the claim.

The application of s 19B of the 1987 Act

The respondent disputed that Mr Sara was “engaged in employment” to which the New South Wales legislation applied when he contracted COVID-19.[182] It otherwise disputed that not everything Mr Sara did in the United States was in the course of his employment.[183]
[182] T, p 108.
[183] T, 110 and written submissions [36].

The following admissions were made by the respondent’s counsel on the application of s 19B of the 1987 Act:[184]
“Member: If I make that finding that he is in the course of his employment with the respondent when he was in New York, in those circumstances, does the applicant succeed.
Ms Tronson: Yes, because of section 19B.
Member: Okay.
Ms Tronson. Because in the course of his employment, although you don’t need to find that separately, must include a finding that he was engaged in his employment and we don’t challenge that it was prescribed employment…. It is not exactly clear what the relationship between sections 4 and 19B is except to say that, I think in this case, I am comfortable in saying if you find that when Mr Sara was in the US, he was engaged in his work for the respondent because of the concession that the respondent has made in relation to 19B, then the applicant succeeds. And you do not need separately to consider section 9A.”
[184] T, pp 108 - 109.
Following a further interaction, the respondent accepted that if Mr Sara was in the course of his employment whilst in New York, then s 19B was satisfied.[185]
[185] T, p 109 lines 26 – 34.

Considering the respondent’s concessions, the earlier finding that Mr Sara was in the course of his employment with the respondent when he contracted the COVID-19 virus is sufficient to establish liability under s 19B of the 1987 Act. The respondent did not attempt to rebut the presumptions that arise under s 19B(1) of the Act. In these circumstances, it is unnecessary to make any further findings.

FINDINGS

Mr Sara was engaged in employment and in the course of his employment with the respondent when he contracted the COVID-19 virus. Pursuant to s 19B of the 1987 Act, the injury is deemed to have occurred on 23 July 2020 when the test was performed establishing that Mr Sara had a positive result and was diagnosed with COVID-19.

ORDERS

The orders are set out in the Certificate of Determination.
The claim for s 60 expenses is alleged to be in the order of $11 million (USD) and has been stood over. The parties are directed to consider the various maximums recoverable for these expenses prior to the relisting of this issue.

[2021] NSWPIC 286

10 August 2021