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Sara v G & S Sara Pty Ltd

Sara v G & S Sara Pty Ltd

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Case Copied 10 August 2021 60 min read

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWPIC 286
Decision Date: 10 August 2021

CaseChat Overview and Summary

Sara, the widow of a deceased worker, applied to the Court for a death benefit under the Workers Compensation scheme. The respondent, G & S Sara Pty Ltd, a group of companies involved in dental technician products and services, argued that the worker contracted COVID-19 in a social setting outside the course of employment and that his work in the United States was for a different company, Stoneglass US, and not covered by the Workers Compensation Act. The dispute centred on whether the worker's employment was covered by the Workers Compensation scheme and whether the COVID-19 infection occurred in the course of employment.

The Court needed to determine if the worker's employment was covered by the Workers Compensation Act and if the COVID-19 infection occurred in the course of employment. The Court examined the onset of symptoms, the worker's reluctance to wear masks, likely exposure to many people during travel, and the medical evidence regarding the incubation period to determine the likely place of infection. The Court also considered the administrative arrangement of the respondent's group of companies and the nature of the work performed by the worker in the United States to establish whether the worker's employment was for Stoneglass US or Stoneglass Australia.

The Court found that the worker probably contracted the virus during the period of travel to the US, which included passing through customs at San Francisco, based on the evidence presented. The Court also found that the work performed in the United States was not exclusively for the US company, as some of the work was in the name of Stoneglass Australia, and that company received a direct benefit from Stoneglass US entering into contracts. The Court held that the worker's employment was covered by the Workers Compensation Act, and the virus was contracted in the course of employment. Consequently, the applicant succeeded in her claim, as the respondent did not contest the presumptions that arose under section 19B of the 1987 Act. The Court granted the applicant entitlement to a death benefit, and the quantum of section 60 expenses stood over for further determination.

The Court ordered that the applicant was entitled to the death benefit under the Workers Compensation Act. The quantum of section 60 expenses remained to be determined in a subsequent proceeding.

Orders