Sek v Bell River Homes Pty Ltd - [2023] NSWPIC 117

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Sek v Bell River Homes Pty Ltd [2023] NSWPIC 117
APPLICANT:	Adrian Sek
RESPONDENT:	Bell River Homes Pty Ltd
Member:	Jill Toohey
DATE OF DECISION:	21 March 2023
CATCHWORDS:	WORKERS COMPENSATION - Injury to right shoulder; no dispute as to injury; applicant was sub-contractor; whether applicant was deemed worker at the time of injury; applicant and respondent had written agreement; no dispute that applicant was party to a contract with the respondent to perform work; no dispute that the work exceeded $10 in value; no dispute that the applicant neither sublet the contract nor employed others; issue whether the work the applicant carried on for the respondent was incidental to a trade or business regularly carried on by him under his own name or the name of his business; Held –the work the applicant carried on for the respondent was not incidental to a trade or business regularly carried on by him under his own name or the name of his business; finding that the applicant was a deemed worker; respondent to pay the applicant weekly payments at the agreed rate; applicant entitled to reasonably necessary medical expenses as a result of his injury.
determinations made:	The Commission determines: 1. The applicant sustained injury to his right shoulder on 4 February 2022 while carrying out work for the respondent. 2. The applicant was a deemed worker within the meaning of Schedule 1 to the Workers Compensation and Workplace Injury Management Act 1998 at the time of his injury. 3. The respondent is to pay the applicant weekly payments as follows: (i) $1425.00 per week from 4 February 2022 to 6 May 2022 pursuant to s 36 of the Workers Compensation Act 1987, and (ii) $1200.00 per week from 7 May 2022 to date and continuing pursuant to s 37 of the Workers Compensation Act 1987. 4. The respondent is to pay the applicant’s reasonably necessary medical expenses resulting from the injury in accordance with s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Adrian Sek (the applicant) is a carpenter by trade. He owns and operates a business known as Adrian Sek Building Construction and Maintenance (the business) in which he is a sole trader.
On 4 February 2022, Mr Sek was doing maintenance work on a property for Bell River Homes Pty Ltd (the respondent) when he slipped on a driveway and fell, injuring his right shoulder.
At the time of his injury, Mr Sek was working under a “Sub-contractor Agreement” between his business and the respondent.
There is no dispute that Mr Sek injured his right shoulder on 4 February 2022 or that he was working for the respondent at the time. He does not assert that he was an employee but, rather, that he was a “deemed worker” within the meaning of Schedule 1 of the Workers Compensation and Workplace Injury Management Act 1998 (the 1998 Act).
Clause 2(1) of Schedule 1 relevantly provides:
“(1)…

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: [2023] NSWPIC 117
Decision Date: 21 March 2023

CaseChat Overview and Summary

The case of Sek v Bell River Homes Pty Ltd involved an application for workers compensation by Sek, who sustained an injury to his right shoulder. Sek was a sub-contractor for Bell River Homes Pty Ltd (Bell River). The dispute centred on whether Sek was a deemed worker at the time of his injury, entitling him to compensation. Both parties agreed on the facts that Sek was engaged in a written agreement to perform work, the value of the work exceeded $10, and Sek did not sublet the contract nor employ others.

The legal issue before the court was whether the work Sek carried out for Bell River was incidental to a trade or business regularly carried on by him under his own name or the name of his business. This distinction was crucial as it determined whether Sek was a deemed worker under the applicable legislation. The court needed to examine the nature of Sek's business activities and whether they were akin to those typically performed by a regular business.

The court found that Sek's work for Bell River was not incidental to a trade or business regularly carried on by him under his own name or the name of his business. As a result, Sek was deemed a worker. Consequently, Bell River was ordered to pay Sek weekly payments at the agreed rate and to cover any reasonably necessary medical expenses resulting from his injury. The court’s decision hinged on the specific circumstances of Sek’s business operations and their regularity and nature in comparison to a standard trade or business.

Orders