Stuart v Workers Compensation Nominal Insurer

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Stuart v Workers Compensation Nominal Insurer & Ors [2023] NSWPIC 219
APPLICANT:	Diane Stuart
first RESPONDENT:	G Maroun and J Maroun
second respondent:	Workers Compensation Nominal Insurer
SENIOR Member:	Elizabeth Beilby
DATE OF DECISION:	12 May 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim in respect of lump sum death benefit; finding that the applicant was a worker as he was a caretaker on a farm owned by the first respondent; reliance placed upon Harris v Cudgegong Sawing; Held – employment was not a substantial contributing factor to the fatal injury as there was no compelling evidence that the deceased was engaged in any work activity at the time of his death.
determinations made:	1. Mr Douglas Stuart (the deceased) was a worker within the meaning of s 4 of the Workers Compensation Act 1987 (1987 Act). 2. Employment was not a substantial contributing factor to the fatal injury pursuant to s9A of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

Diane Stuart (the applicant), the widow of the deceased Mr Douglas Stuart claims the lump sum benefit pursuant to s 25(1) of the 1987 Act.
Mr Stuart was involved in a fatal accident on a quad bike on a farm in Sofala owned my George and Moroun (the first respondents). The property is approximately 100 acres in size and held a small, fenced property with a house within it (where Mr Stuart lived).
It is alleged by the applicant that Mr Stuart was employed by the first respondent at the time of his death and that the employment was a substantial contributing factor to his death.
Mrs and Mrs Maroun did not hold a valid workers compensation policy of insurance as at the date of death.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Was Mr Stuart a worker within s 4 of the 1987 Act?
(b) Was employment a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute;
(b)    Reply to the Application to Resolve a Dispute;
(c)    Amended Application dated 15 March 2022, and
(d)    late documents dated 5 July 2022, 5 August 2022, 11 August 2022, 12 August 2022, 23 August 2022, 26 August 2022, 23 September 2022 and 27 October 2022 and 16 December 2022.
Multiple sets of written submission have been received by the parties and considered in this determination.
There has been a significant amount of material filed by the parties that is relevant to the issued in dispute. I will now outline the evidence.

Diane Stuart

Mrs Stuart has prepared multiple statements in support of her claim. The first statement is dated 5 February 2020.[1] In that statement she explains the expiry of time from the date of death of her husband on 5 March 2017 until the time she consulted a lawyer in late September 2019.
[1] Amended Application page 10.
Mrs Stuart has prepared a further statement dated 31 March 2021.[2] Mrs Stuart explains that she and Mr Stuart were married in 2004 and had eight children at the time of his death. She also describes her husband as a kind and loving man and a devoted father, matters that are not in dispute.
[2] Amended Application page 12.
Mrs Stuart describes pre-existing health concerns that her husband experienced following a serious workplace accident in 1994 where he broke his foot. Unfortunately, this injury developed so that by 2010 he required a below-knee amputation.
Mrs Stuart concedes that whilst he was a hardworking, dedicated and loyal employee, he did have an alcohol illness arising from his prior workplace injury.
Despite his physical challenges, Mrs Stuart explains that her husband performed manual work on farms which he mainly obtained through word of mouth.
In about 2015, Mr Stuart was given an opportunity to do some work for the Marouns at their property in Sofala, having known them from doing work for them some years before. Mrs Stuart says she felt apprehensive about the arrangement as there had been an issue of underpayment in previous employment with them.
Mrs Stuart recalls attending the Sofala property with her husband in the company of John and Mary Maroun to discuss the arrangement.
Mrs Stuart was in the car with Mr Stuart when they were shown around the property. Mrs Stuart says that the Marouns indicated that they needed help with the farm and Mr Maroun pointed out fencing and stock work which needed to be performed, including checking the cattle and sheep.
Mrs Stuart says that she recalls specifically Mr Maroun saying the following words to Mr Stuart: “We’ll give you 2 or 3 days work a week and we will pay you for those days and give you the old house for free and look after the place”.
Annexed to Mrs Stuart’s statement is an extract of notes taken by Mr Stuart.[3] That notebook has the following entry in the bottom right-hand corner:
“John,
Make sure of 3 days a week
Pay is right
Pay into my account
When to start
$25.”
[3] Amended Application page 28.
Mrs Stuart understood the arrangement that her husband was to work as the Maroun’s farm manager. They would pay Mr Stuart for a couple of days a week and give him free rent on the house on the property to live in. The Stuarts were to pay the electricity bill on the house.
Mrs Stuart opined that it suited the Marouns to have the Stuarts reside in the house and as it meant that Mr Stuart was always present on the farm to watch over the place.
Mrs Stuart says that in about September 2015 her husband returned to the Sofala property and lived there. She was planning to join him at a later stage. She understood that he worked hard and did long hours for the Marouns, the Maroun family being based in Sydney, would come up on weekends.
As time progressed, Mrs Stuart expresses that she got frustrated as it appeared that her husband was doing more and more on the place for nothing.
In relation to payment Mr Stuart told his wife and they paid him some cash, but it was not that often. They would give him $50 every now and then to pay for fuel.
Mrs Stuart annexes to her statement an extract from Mr Stuart’s book dated 21 February 2016. In that extract are the following words: “John paid me $650 for fencing after some serious discussion. Bill = $960 … paid $700 … owing $260.”
Mrs Stuart also observed that there was often not enough food for the number of animals on the property and the Marouns were reluctant to pay for food for stock. She says on a number of occasions she and her husband bought bales of hay themselves, she paid for one large bale herself and noticed that her husband would also pay for hay. She recalls all the cattle charging the Hilux trying to get the hay feed off the Hilux. This damaged the vehicle.
Mrs Stuart says that her husband was a kind peaceful person and was still in receipt of workers compensation payments having lost his leg and as such money was not a top priority for him. He managed to survive on the small income he received. At the same time Mrs Stuart was working as a nurse and was earning a decent income. Nevertheless, Mr Stuart would complain to his wife that the Marouns were not paying him as they said they would.
Mrs Stuart clearly says that she understands that her husband was not “on the books” though she says he was employed by them. Mrs Stuart understood that the Marouns did engage contractors on the property from time to time to assist with shearing.
Mrs Stuart says that she herself saw her husband doing fencing work on the property, spraying weeds, drenching and mustering sheep and getting the sheep ready for shearing in preparation for the shearers. The Marouns always supplied the drench and Mr Stuart would do the spot spraying with the spray hooked on the back of his quadbike.
Mrs Stuart explains that her husband used his own 4-wheel quadbike to drive around the property and do the stock work and would use either their own ute or his other ute to do the fencing work. The Marouns paid for his fuel. Mr Stuart used his own dogs to muster the sheep.
Mrs Stuart is quite candid in her statement about her husband’s difficulties with alcohol and that the Marouns were quite aware of the ongoing problem.
In relation to the time around the time of the accident, Mr Stuart had been staying at Wyong and left on Friday 3 March 2017 early in the morning. He told Mrs Stuart that he had to go back and prepare the sheep for shearing on the Monday. He had been in Wyong to assist Mrs Stuart in getting her mother’s residential house ready for sale.
Mrs Stuart outlines that her husband had obtained secure new full-time employment as a farm manager at Rylstone which he intended to start.
Mrs Stuart has prepared a further statement 3 August 2022[4] in response to the statements of George Maroun. Mrs Stuart is certain that she did hear a conversation with John Maroun where John offered two to three days work paid work and for her husband to live in the house for no rent and to look after the property while Mr Maroun was away.
[4] Late documents dated 5 August 2022, page 4.
Mrs Stuart indicates that she did see John Maroun at the property on numerous occasions. She does not agree that this would be approximately four times but feels like it would be more like a dozen times. She says they would have eaten meals together approximately four times.
Mrs Stuart indicates that she does not agree that her husband only worked on two occasions on the farm. She says that she herself helped on a couple of occasions fixing fences as there was a gate always hanging off.
Mrs Stuart says that it is ludicrous to suggest that her husband did not have permission to be on the property when the Marouns weren’t there. Her husband had keys to all the gates leading up to the main house and for accessing the entire property.
Mrs Stuart indicates she would have seen George Maroun a lot less than John Maroun because George wasn’t there as much as John.
Mrs Stuart agrees that her husband would not have set times to work, time was flexible as farming work is. He might have worked for four to five days straight and then at times did not work the next week.
In relation to purchasing hay, Mrs Stuart remembers this clearly. She would have done this on two or three occasions and purchased it from a Bathurst farm. She indicates that her husband would order it and would put it on the back of his ute with a forklift and driven to Sofala.
Mrs Stuart indicates that her husband would have used the spray unit to spray on the Marouns’ property, not a neighbouring property.
Mrs Stuart has filed a further statement dated 30 November 2022.[5] Mrs Stuart discusses the provision of fuel from Mr George Maroun to her husband.
[5] Late documents dated 1 December 2012.
She observes that Mr George Maroun states that she provided diesel fuel for Mr Stuarts Ute as it would “save him from going into town”. Mrs Stuart states that her husband’s Ute did not take diesel but rather unleaded fuel.

Senior Constable Alan Tull

Sen Constable Alan Tull has prepared a statement dated 13 March 2017. He attended the Sofala property where he observed the deceased having fallen from his quadbike.
Of some importance is that Sen Constable Tull had a discussion with Garth Wells on the property. Mr Wells indicated at that time that he arrived at the property at around 9.00pm on Saturday 4 March to stay the night and assist the Mr Stuart the following day to muster and drench sheep. When he arrived, Mr Stuart was asleep. On 5 March, the pair did some work on the property, had a short sleep and then the Mr Stuart drove Mr Wells into Sofala where they got petrol. They attended the Sofala Hotel where Mr Stuart had one schooner of Tooheys New and a glass of overproof rum and coke. They then returned to the property and the Mr Stuart had another short sleep and consumed two stubbies of Tooheys New.
The pair spent some time in the afternoon chatting on the verandah and around 6.00pm Mr Wells went inside to start dinner. At approximately 7.15pm Mr Wells heard Mr Stuart’s quadbike and he assumed that he may have been going to check on the sheep in the nearest paddock where they were to shear the following day.
At around 8.16pm, the Mr Stuart had not returned and it had become dark. He became concerned and from the landline called the mobile phone of the Mr Stuart however it went to message bank. Mr Wells then searched for Mr Stuart and discovered him having been involved in an accident.
Senior Constable Tull indicates on 9 March 2017 he contacted George Maroun and had a conversation with him. George Maroun indicated he had known the deceased for 15 years and he had troubles with alcohol. He described the deceased as having ridden his quadbike dangerously up steep hills and approximately three to four weeks before the incident had rolled the quadbike on a neighbouring property.

George Maroun

George Maroun has prepared a statement dated 9 March 2017.[6] George Maroun indicated that he had known Mr Stuart for approximately 15 years and is the son of the property owners where Mr Stuart lived and died.
[6] Amended Application page 78.
Mr Maroun said he would mainly see Mr Stuart on the weekends and understood he lived at the house rent-free as a caretaker of the property. Whilst he lived on his own, occasionally his wife and friends would come and visit and stay with him.
Mr Maroun says that he understood that Mr Stuart would occasionally check on stock namely cattle and sheep and the last paid work he undertook on the property was repairing fences with himself and his father John Maroun.
George Maroun understood that Mr Stuart had some issues with alcohol and understood he had attended rehabilitation on a few occasions. He also says that warnings had been given to Mr Stuart that if he had consumed any alcohol, he was not to go past his house gate and not to be on the property generally. George Maroun says occasionally he could smell alcohol on Douglas’ breath and his words would be slurred and he looked intoxicated.
In relation to the quadbike, he understood that Mr Stuart owned his own quadbike and says that he would occasionally ride this dangerously by riding up steep hills. Indeed, he understood that about three to four weeks before the accident Mr Stuart had rolled his quadbike on the neighbouring property but did not sustain any injuries.
George Maroun said he saw Mr Stuart at approximately 3.15pm on Sunday 5 March and gave him fuel to save him from going to town and also gave him some food for dinner. He only stayed with him for 10 minutes and was unsure if he was intoxicated as he appeared fine and he could not smell alcohol on his breath.
Mr George Maroun has prepared a further statement dated 4 July 2022.[7] Mr George Maroun explains that he is also the owner of a 700 acre property which is located beside his parents’ property, which he purchased approximately 10 years ago.
[7] Late documents dated 5 July 2022, page 7.
In 2011 John and George Maroun started a company known as John Mary and Sons Farming Pty Limited. They had cattle and sheep on the property and also farm equipment such as tractors and other farming equipment which was stored in lockable sheds.
When Mr Stuart moved into the house near the main entry of the property, George Maroun said this would assist Mr Stuart but also made the property more secure by having someone there. He understands that there was no rent charged for the property however Mr Stuart was to pay for electricity and his phone bill.
George Maroun says that Mr Stuart was not a caretaker or an employee and there was no obligation imposed on him at all.
Mr Maroun does say however that on one occasion Mr Stuart did act as a broker to purchase sheep for which he wanted cash payment, there was also additional subcontracting as a fencer which he performed in 2016.
Mr George Maroun clearly disagrees with some of the evidence from Mrs Stuart, in particular he says that Mr Stuart was never hired as a part-time worker or manager other than those two occasions that he had disclosed.
Mr George Maroun does not agree that any tax return indicated that Mr Stuart was employed by them.
Mr George Maroun explains that if a spray unit was observed to be hooked on the back of a quadbike, this was because Mr Stuart had borrowed the spray unit from the Marouns to carry out a job for himself in Rylstone.
Mr George Maroun indicates that Mr Stuart was free to come and go as he pleased and was never required to do any work at any time.
He also explains on the day of Mr Stuart’s death, his father John and himself had been mustering and drenching sheep. When Douglas Stuart and Garth Wells came to them, they had finished that job and invited them to have lunch which they did. Mr George Maroun states that it appeared that Mr Stuart was slurring his words, but he was unsure if he was intoxicated.
As he was leaving the property, Mr George Maroun indicated they gave some food to Mr Stuart but when he saw him, he could not tell if he was intoxicated or not as he was a fair bit away from him and he had just woken up. He certainly was not instructed to carry out any further work when they left the property.
George Maroun indicates that the place where Mr Stuart was found had no connection with any activity on the farm and there were no tracks. There was no stock on his parents 100 acres as they were three paddocks away and Mr Stuart was not instructed or given any permission to be there.
In relation to the annexures that Mrs Stuart has in her statement, the annexure in relation to a fencing job George Maroun explains would have been in reference to another job where he was paid as a contractor. The reference below that mustering cattle on Red Hill is not a reference to the Maroun property as Red Hill is not on their property but on a property owned by Paul Williams.
In relation to work performed by Garth Wells, Mr George Maroun indicates that Mr Wells did not work on the property, no work drenching cattle or work in the sheep yards. He also does not agree that he dropped off any fuel for Doug’s quadbike. Rather, Mr Stuart had asked his father at lunch if he could give him some fuel for the car, so he dropped off fuel for his car in accordance with that request.
In relation to Mr Wells assertion that Mr Stuart could have been going to look at sheep in the closest paddock to the house, Mr George Maroun indicates that the sheep were paddocks away from the house and there was no way that Mr Stuart or anyone would leave at 7.15pm to go and look for the sheep. Further, where Doug was found was well away from where he would have travelled if he wanted to go where the sheep were. They simply were not in that direction at all and there was no possible farming related reason for Doug to be in that area where he was found. Further, Mr Stuart would not have been required to go and check on sheep or get them penned up because that had already been performed by Mr Maroun and his father earlier that day.
In relation to the time that Mr Wells indicated that Mr Stuart left the house, he observes that Mr Wells and Mr Stuart had been chatting on a verandah until 6.00pm when he went and started to make dinner. That means that Mr Stuart could not have left at 5.30pm.
Mr George Maroun has prepared a further statement dated 22 August 2022.[8] Mr George Maroun indicates with certainty that his sheep have never been on a property of “Sunrise”. In relation to the keys to the property, George Maroun says that Mr Stuart did have those until mid-2016 when he lost them. A new set of keys was handed to Mr Stuart after the locks had been changed.
[8] Late documents dated 23 August 2022, page 15.

In relation to Michael Brennan’s evidence that he used to have stock next door at Red Hill which is owned by Paul Williams, George Maroun says on a couple of occasions he would find his chain cut between Red Hill and Kylie’s Run which he had leased and was advised it was Mr Brennan and was later told that his stock had come into Kylie’s Run and he pushed them back to Red Hill.
Mr George Maroun says that all the farming work on the property from the time it was purchased until the present, no work was ever performed on the property including shearing, drenching, mustering, any time of work unless his father or he were there.
Mr George Maroun has prepared a further statement dated 21 September 2022.[9] In that statement Mr George Maroun addresses the evidence of Ms Kilby and Mr Brennan.
[9] Late documents dated 23 September 2022, page 55
Mr Maroun indicates that at no time had Mr Stuart had any involvement with stock from the Snell property being on the Maroun property. He indicates there were three occasions when stock from that property came on to their property and were then returned.
On each of these occasions it was Mr Maroun who contacted the neighbouring property to organise the sheep and cattle to be removed.
Mr George Maroun has proved a further statement dated 27 October 2022.[10] Mr Maroun had at that stage been provided with statements of Nicholas Kilby, Ms Kilby, Charles Cole and Matthew Hawley.
[10] Late documents dated 27 November 2022, page 1.
Mr Maroun says that at no time was Mr Stuart involved with any returning of cattle or sheep, it was him that would contact the Snell’s to retrieve their livestock.
In relation to wandering sheep, Mr Maroun queries whether they were indeed from a neighbouring property owned by Charles Cole rather than their sheep as their paddocks were fully and adequately fenced.
Mr George Maroun does indicate however that he had at one time contacted Charles Cole so that he could collect his sheep from his property. Mr Maroun indicates that he would leave the sheep penned up in the yard so that Mr Cole could collect them.
Mr George Maroun has signed a further statement dated 17 December 2019.[11] Mr Maroun indicates in that statement that his parents since purchasing the property have run the property as a type of hobby farm.
[11] Reply, page 22.
Mr George Maroun is also the owner of a property approximately 700 acres which is located immediately beside his parents’ property. There are no houses, sheds or anything like that on his property.
Mr George Maroun indicates that he never understood his parents to employ any direct employees however they would sometimes use the services of subcontractors or contractors such as shearers.
Mr Maroun indicates in 2015 his father allowed Mr Stuart to move into the smaller house on the property. Over the months leading up to that time there had been a number of thefts of stock from the property and since his parents were not domiciled there all the time, they thought it was a good idea to have someone staying on the property to keep an eye out.
Mr Maroun indicates that Mr Stuart was not a caretaker as such or an employee, rather just someone living on the property so that there was someone there when his parents were not. He was not allocated any routine duties and was never given any instructions from his parents in relation to any particular jobs on the property.
Mr Maroun understands that Mr Stuart did work on other farms and properties around the area and he did assist on one occasion for his parents when he acted as a broker in purchasing some stock.
Mr Maroun indicates that in the time from approximately early 2016 up until the date of the accident, Mr Stuart’s alcohol challenges were getting more significant.
Mr Maroun indicates that Mr Stuart had his own quadbike which he brought to his parents’ property with a horse that he owned. He used the quadbike on the property and took it to other farms where he worked. He also understands that approximately two weeks prior to the accident Mr Stuart had used his quadbike on another farm and there had been some type of accident.
On 5 March 2017, Mr Maroun indicates he had been working on his parents’ farm together with his uncles and some other family members. At some time on that day whilst he was mustering sheep, Mr Stuart and Mr Wells arrived. Mr Maroun indicates he spoke to both but neither assisted with any type of work that they were doing. Mr Stuart appeared to be slurring his words and unsteady on his feet.
On that day the family members left the property at approximately 2.45pm. At that stage Mr Maroun indicated he advised Mr Stuart not to be involved in any of the work.

John Maroun – 3 July 2022

John Maroun has prepared a statement dated 3 July 2022.[12] Mr Maroun is the owner of the property at 5171 Sofala with his wife Marie, a property they have owned for approximately 22 years. Mr Maroun indicated that his wife and he are generally at the property three to four days a week although sometimes they reside there for several weeks.
[12] Late documents dated 5 July 2022, page 1.
Mr Maroun crossed paths again with Doug Stuart and discussed with him staying rent free I the old house on the property as a gesture of goodwill. This worked well for the Marouns as they would have someone living in the house at the entrance to the property and made the property somewhat more secure. He understood at the time that Mr Stuart took up the offer he had stopped drinking alcohol altogether.
Mr Maroun indicates that they would do work required on the property and on occasions some of the family would come from Sydney to help.
In early January 2016 Mr Stuart came with his son who assisted with shearing the sheep and they were paid for the day as a subcontractor. Mr Maroun says that Doug himself only had done work on the property on two occasions, the first being when he erected a fence and at that time was paid as a subcontractor and the second when he acted as a broker for the purchase of some livestock.
In April 2016 Mr Maroun became aware that Mr Stuart had returned to drinking excessively and understands that his son George told Mr Stuart not to come on the main property at all when he had been drinking.
On the day that Mr Stuart died, Mr Maroun says that he and his son George had been mustering sheep and drenching them. Mr Stuart and Mr Wells came to visit them and Mr John Maroun formed the view that Mr Stuart was very intoxicated and slurring his words. Mr Maroun says that neither Mr Stuart or Mr Wells took any part in the mustering or drenching of the sheep and that job was completed entirely by John Maroun and his son after lunch.
Later that day, Mr John Maroun said he went to visit Mr Stuart to give him some food and he observed that he was having difficulty standing which he considered was because he was too intoxicated though he does concede he also did have a leg condition. Mr Maroun reports a conversation he had with Garth Wells after the accident and says that Mr Wells told him that on the day of the accident, they had both been drinking at home and then went to the Sofala Hotel to continue drinking before returning to the property and drinking more. Mr Wells said that at just after about 7.00pm, Mr Stuart jumped on his quadbike and rode off without telling Garth where he was going or what he was doing.

Edward Wells

Edward Wells has prepared a statement dated 2 July 2020.[13] Mr Wells explains that he often worked together with the Mr Stuart at the Marouns’ property carrying out whatever jobs needed to be done. In effect he worked as Mr Stuart’s offsider, the work including fencing work, clearing the property, spraying, cleaning up, mustering and sheep work as required.
[13] Amended Application page 71.
Mr Wells explained that he understood that when Mr Stuart first started at the Marouns he was only doing one day a week in return for free rent, however he had to pay the electricity bill. Mr Wells understood that the Mr Stuart did quite a bit of work for the Marouns which included drenching cattle and fencing. In addition, they worked together to do fencing work and spraying the blackberries and tussock grass on the property. He recalls on the afternoon of the accident that George Maroun dropped off some petrol for Mr Stuart’s quadbike.
Mr Wells explained that the Maroun family would always extend an invitation to have lunch with them.
Mr Wells said he would be at the property to do work after Mr Stuart would ring him up when he needed help. Sometimes Mr Stuart would pay him cash but not all the time. It was a casual arrangement.
On the day of the accident Mr Wells explains that he had been working with Mr Stuart mustering sheep and drenching and it was hot. They stopped around 1.00pm and had lunch and a few drinks.
When Mr Stuart left the residential accommodation, Mr Wells assumed that he was going to check on the sheep or get them penned up so they were ready for the following morning. He said that Doug had left on his quadbike around 5.30 or so in the afternoon, it was still light.
Mr Wells has prepared a further statement which is undated.[14] In that statement, Mr Wells stands by his previous evidence that he had been mustering and drenching sheep between 8.00am and 1.00pm on the day of the accident.
[14] Late documents dated 11 August 2022, page 1.
Mr Wells is adamant that on the day of the accident they had been working in the morning. He feels it is ridiculous to say that they arrived after the work was done and then were given food and fuel. The Marouns were quite nice people but there was an expectation that they would work in return.
Mr Wells explains that he had been helping Mr Stuart out many times on the property before his death. They sprayed for blackberries and tussock grass and recalled Doug using his bike with a spray unit loaded on the back. They did lots of little jobs around the place including some fencing work and recalls putting up some steel racks for the Marouns. He also recalls feeding cattle up in the back paddock.
Mr Wells says that on occasion when he had been helping drench the sheep with Mr Stuart, some older relatives had been assisting and they were helping push the sheep up into the race.

Jason Stuart

Jason Stuart has prepared a statement dated 21 July 2020.[15] Mr Jason Stuart is the youngest son of Douglas Stuart, the deceased. He first met the Maroun family 10 years ago when he was living in a rented house on their property. He says that he observed his father working for the Marouns on their property many times over the years that he lived there, he himself had done some shearing work for them not long before his father had died. He recalls attending the property for shearing and he helped his father get the sheep in and get them ready for the shearing the next day. He arrived in the afternoon before the shearing and gave them a hand to get the sheep in by using his father’s dogs. He then stayed at the house on the property. On the following day he observed his father and John Maroun working together to draught the sheep that didn’t have to be shorn. He recalls his father being told what to do by John Maroun. He recalls after his day shearing that the Marouns paid him cash for his work and they all had lunch together including John and Mary Maroun.
[15] Amended Application page 75.
It was Jason Stuart’s understanding that the arrangement between his father and the Marouns was that his father was to do work on their place in return for free rent. His father and he had many discussions about the work he was doing for the Marouns and he understood that his father had to prioritise their work but also understood he had work lined up for other people in the area.
Jason Stuart also heard his father talking on the phone to George Maroun at times and he appeared to be constantly getting calls from George or John Maroun to assist them on the farm with other work. He understood his father was getting annoyed due to this additional work and he would have to cancel other jobs to fit them in.
Jason Stuart estimates his father would be probably performing at least two days a week of work for them on their property.
Jason Stuart has prepared a further statement dated 1 August 2022.[16]
[16] Late documents dated 11 August 2022, page 4.
Mr Stuart has no recollection of speaking to John about his father rolling a quadbike on a neighbouring property a week before his death. He may however have spoken to him about him personally rolling a quadbike which he had done on a few occasions.

Joseph Maroun

Joseph Maroun has prepared a statement dated 18 August 2022.[17] Mr Joseph Maroun is the son of John and Mary Maroun. Mr Maroun explains that he attends the family property one to two times a month and most times alone and during the week but sometimes on the weekend where he assisted with tasks such as carrying vermin control.
[17] Late documents dated 23 August 2022, page 9.
Mr Maroun said he had seen Mr Stuart on the property a few times usually for lunch or dinner however had never seen him do any type of work on the property. He would also see his family, relatives and friends carrying out work on the property alongside Robert Miller on some occasions.

Joseph Boutros

Mr Boutros has prepared a statement dated 30 June 2022.[18] Mr Boutros says that he would go to the Maroun family farm at least twice a month to help with farm duties including growing fruit and vegetables, drenching stock and fencing. He says that he has never seen Mr Douglas Stuart helping with the stock or any farm work. He says that all the time that he has visited he had never seen Douglas Stuart perform any work there.
[18] Late documents dated 5 July 2022, page 4.

George Boutros

George Boutros has prepared a statement dated 17 August 2022.[19] Mr Boutros is a relative of the Maroun family and attended the Maroun property two to three times a month where he assisted family members in various chores around the farm including drenching livestock, fencing and spraying for weeds. Mr Boutros says he did see Douglas Stuart at the Maroun residence but that was only around mealtimes. He had never seen him do any type of work on the property.
[19] Late documents dated 23 August 2022, page 13.

Botros Botros

Mr Botros has prepared a statement dated 17 August 2022.[20] Mr Botros is a relative of the Maroun family and says that he would attend the family property one to two times a month with his wife and children and would assist with tasks such as drenching livestock, fencing, guarding and spraying weeds or just to relax with the family.
[20] Late documents dated 23 August 2022, page 11.
Mr Botros says that he did meet Mr Stuart on three to four occasions at the Maroun family farm over a light meal or coffee however in all his years of attending the Maroun property he had not seen Mr Douglas do any type of work on the property. He did however see relatives and friends carry out work alongside a neighbour known as Mr Miller.

Bradley Tannous

Bradley Tannous has prepared a statement dated 3 August 2022.[21] Mr Tannous was a relative of the Maroun family and started going to their property when they purchased it in 2000.
[21] Late documents dated 23 August 2022, page 5.
Mr Tannous says that he would attend on occasion one to three weekends a month with other family members where they would do different chores such as pruning trees, drenching livestock and fencing and spraying weeds.
Mr Tannous says that the only time he would see Mr Stuart was at the Maroun family residence on occasion with his companion when they would come for lunch or dinner. Indeed, he says in all the years of attending the Maroun property he never saw Mr Stuart carry out any type of work on the property. Rather, Mr Tannous says that he would see Mr Robert Miller assisting with any tasks that needed to be done.

Youssef Gerges

Mr Gerges has prepared a statement dated 3 July 2022.[22] Mr Gerges is the brother of Marie Maroun and has visited the farm in Sofala for the last 30 years. He says he would make three to four journeys a month to help his sister with the farm and his assistance would include ploughing the fields, fertilising, drenching, sowing seeds, pruning fruit trees in orchards. Additionally, he helped erect fencing and instal netting around the property as well as keep up any essential maintenance and repairs. Furthermore, he would help in attending to the livestock and farm animals.
[22] Late documents dated 5 July 2022, page 6.
He says that whilst he understood that Mr Stuart resided at the old house, he never saw him perform any work on the property.
Mr Gerges also observed arguments relating to Mr Stuart’s drinking.

Trevor Gillett

Trevor Gillett has prepared a statement dated 7 April 2022.[23] Mr Gillett indicates that he had been attending the Maroun family farm for at least 10 years and knows George Maroun well. At some stages he would attend the farm every weekend or every second weekend.
[23] Second Respondent’s Reply page 12.
When he attended the farm, he often spent time pig-shooting or helping George Maroun and his family pick fruit.
Mr Gillett indicates that he did see Mr Stuart on the Maroun family property at times and he appeared to be intoxicated on occasions.
Mr Gillett indicates he was present on many occasions when Mr Stuart was warned not to go on any other part of the farm if he had been drinking or if he was intoxicated.

David Campbell

David Campbell has prepared a statement dated 12 August 2022.[24]
[24] Late documents dated 12 August 2022, page 5.
Mr Campbell has lived in Sofala for approximately 13 or 14 years and first met Mr Stuart at primary school.
Mr Campbell said he did a fair amount of work with Mr Stuart at Hill End which would include shearing and work at the Hill End Gold Mine in the late 80’s or 90’s.
Mr Campbell indicates he would run into Mr Stuart around Sofala and he would indicate that he was doing some work for the Maroun family. He explained to him he was doing land marking, fencing and other jobs up there.
Mr Campbell says he observed Mr Stuart in the sheep yards approximately half a dozen times at the Maroun’s property.

Chasca Kilby

Chasca Kilby has prepared a statement dated 26 August 2022.[25] Chasca Kilby lives on and manages a property known as “Nalya” which is approximately 3,000 acres of land and borders the Maroun family property for a couple of kilometres of fence line.
[25] Late documents dated 26 August 2022, page 1.
Chasca Kilby indicates that she knew Mr Stuart and found him very helpful. He would phone them whenever stock got out of “Nalya” and onto the Maroun’s place which happened quite often. Ms Kilby indicates that when they were notified that the stock had escaped her husband Nick and sometimes their mother would then go to the Marouns to get the sheep back. Ms Kilby indicates that Mr Stuart would sometimes help muster the sheep back on his quadbike and with his dogs and sometimes they wouldn’t require his assistance.
Ms Kilby says that she often saw Mr Stuart on the Maroun’s property riding his quadbike with his dogs as she would often go out for walks with his kids. It never occurred to her to question why he was there. He just seemed to be going around his business on the farm.
Ms Kilby indicated that Mr Stuart called her on approximately five or six occasions to get the sheep back. She would always assume that he was working for the Marouns because he had that involvement.
Ms Kilby indicates that part of the fence that borders the Maroun’s property and theirs was bulldozed when the Marouns first bought the property. They then wanted financial assistance to put up a new fence which has not happened and the fence has remained down in parts bordering John Maroun’s property and Ms Kilby’s. It is because of that that Ms Kilby understands that their sheep are always coming on to their property. That is, their sheep enter the land from where the bulldozed fence was removed and there are some other parts of the fence that are just in disrepair. Ms Kilby indicates that they keep patching fences to stop this happening however it is difficult terrain to access and get through. Further, the river runs through the property and washes out the flood gates so it is very common for sheep to escape and the sheep would escape from the Maroun’s block, through Steve Clark’s place and on to the Kilby’s.

Ms Kilby says that the Maroun’s sheep are in their paddock all the time and it has come to the point where they can’t run their own sheep in their own paddock anymore because the Kilby’s have Merinos where the Marouns have Dorpers and Dorper Crosses. It is very frustrating for Ms Kilby as the sheep come into their property all the time and they need to chase them out.

Robert Miller

Henry Miller has prepared a statement dated 22 April 2022.[26] Mr. Miller the owner of a farm in Sofala of some significant size, being 1800 hectares. He recalls Mr. Stewart doing work for the maroon family on a subdivision fence and assisting shearing sheep for the Maroun family.
[26] Late documents dated 27 November 2022, page 4.
Mr. Miller states it is his preference to muster shape before dark as it is his observation that is hard to make the sheep go where you want them to go when it is dark.
Robert Miller has prepared a further statement which is undated.[27] Mr Miller contradicts part of Ms Kilby’s statement and says that it is not true that a bulldozer was used to remove some of the fence on the boundary. He explains the Marouns got a bulldozer to put in access roads along the boundary fence but never interfered with the fence. He states the boundary fence had been in disrepair for some 30 years and says that whilst he owned the property for approximately 20 years, he never had any trouble with the Kilby’s sheep or his sheep entering their property because the land is all trees and not suitable for pasture to encourage sheep to attend.
[27] Late documents dated 23 September 2022, page 52.

Wayne Crow

Wayne Crow has provided a statement dated 8 July 2020.[28] In that statement Mr Crow indicates that Doug Stuart was his former brother-in-law and they remained on good terms. He says that he would travel past the Marouns’ property at least twice a day and would see Doug working on the property including mustering sheep with his dogs and his quadbike, fencing or drenching sheep. He also understands that he died on a Sunday as he was getting the sheep up to the yards to move them into the shed for drenching or shearing the next morning. Mr Crow does not indicate how he came to that knowledge.
[28] Amended Application page 95.

Marianne Kimm

Marianne Kimm has prepared a statement dated 11 August 2022.[29] Ms Kim is the sister of Mr Douglas Stuart. She had a close relationship with her brother and says that they would speak on the phone each Sunday. She says he would tell her what work he had done on the property where he resided which included cattle work, sheep work, fencing and weed control.
[29] Late documents dated 11 August 2022, page 5.
She understood that her brother was responsible for taking care of the owner’s animals and assisting them in managing the farm.
She recalls one conversation where they discussed the cattle on the farm were starving and dying and she recalls her brother telling her that Mr and Mrs Stuart had purchased some random bales of hay at their own cost to feed the cattle. She also recalls being told that the cows dented the Ute and recalls that George was going to help get the dents taken out of the Ute. She then recalls on a later occasion Mr Stuart looking to sell the car and being told that it was only worth $5,000 not $18,000 because of the dents which were never taken out.
Ms Kimm then purchased the Ute for $5,000 however found it difficult to get insurance because of the existing dents in the vehicle.
Ms Kimm also had conversations with her brother about stock escaping the Maroun’s property on to other people’s farms.
Ms Kimm also observed the sheep being ill on the Maroun’s farm and recalls that they needed to be drenched which cost around $800. She recalls her brother being annoyed about the situation and said that he would be doing the drench when they bought it next time.
Ms Kimm also explains that in relation to the possibility that her brother was going to get the sheep ready for the next day, the fact that it was dark makes sense because at night the sheep walk to the highest point in the paddock to sleep and it’s the best time to go and get them back for the morning and they are all settled and all together and it is easier to bring them home from their camp. In the day, sheep feed and move around. It was completely logical to her that her brother would leave at that time to get the sheep and bring them back because they are all mobbed up in their camp so much more easily to move along.

Matthew Martin

Matthew Martin has prepared a statement dated 2 August 2022.[30] Mr Martin had lived in Sofala for approximately six to eight years before he sold it in June 2017. The property was known as “Stoney Creek” and was next door to the Maroun family property.
[30] Late documents dated 23 August 2022, page 3.
Mr Martin explains that from his property you could see the Maroun family farm and his driveway went behind the house on the road. He could also see the old house on the property.
Mr Martin has no recollection of seeing anyone there during the day or night working, mostly he would see the Maroun family friends working on the farm during the weekends.

Edward Pillotto

Mr Pillotto has prepared a statement dated 16 August 2022.[31] Mr Pillotto owns a property at Sofala called “Sunrise” which is across the river from the Maroun family.
[31] Late documents dated 23 August 2022, page 7.
In relation to an allegation that Mr Stuart would have been mustering sheep or cattle on the “Sunrise” property, Mr Pillotto makes it very clear that in his view this is not true. He says that Mr Stuart did not have any permission to be on his property at any time and if he did, he would have been trespassing. In addition, it would not have been possible as the gates are locked.
Mr Pillotto does however say that the Maroun family did have gate keys from the river on to the property as he did with theirs.
Mr Pillotto said that he had never seen any sheep from the Maroun family farm on his property or even in any of the sheep yards which had not been operational for some 10 years.
Mr Pilotto said that he did not ever see Mr Stuart work on the Maroun family farm but would see family members carrying out farm work.

Paul Williams

Paul Williams has signed a statement dated 8 April 2022.[32] Mr Williams owns the property in Sofala known as “Red Hill”. It is next door to the Maroun property and shares a boundary on the north and western side of his property.
[32] Second Respondent’s Reply page 15.
Mr Williams indicates on an occasion Mr Stuart had been on their property shooting kangaroos when there had been friends camping on the property at the same time. This caused some concern and Mr Williams requested George Maroun tell Mr Stuart that he was not welcome on the property at any stage.
A few weeks later Mr Stuart came on to the property to apologise and asked to be able to shoot kangaroos on his property, such request was flatly rejected.
Mr Williams indicates on 5 March 2017 he was at the Royal Hotel in Sofala around 5.00pm in the company of his friend Mr Payne. They had been there to have a few beers on the Sunday evening before they went home for dinner.
At some stage Mr Williams indicates that he felt someone come up behind him and put their hand on his shoulder and start to talk and he realised that this man was Mr Stuart.
Mr Williams observed Mr Stuart to be very intoxicated and unstable on his feet. Mr Williams observed another male to be with him who was also clearly intoxicated.

Michael Brennan

Michael Brennan has prepared a statement dated 3 August 2022.[33] Mr Brennan owns a property called “Tralee” which is approximately 300 acres on which he runs some sheep and mainly cattle.
[33] Late documents dated 5 August 2022, page 7.
Mr Brennan was familiar with Mr Stuart having known him for approximately 20 years.
Mr Brennan indicates he did not know the exact details of the arrangement between the Marouns and Mr Stuart but it was his understanding that he was living on the property as a type of caretaker and that he was also working for them. He says he would see him every now and then down on the Crudine River on the property or on his quadbike mustering sheep or cattle. He would park his ute with a trailer on it up at Mr Brennan’s property every now and then, get off the quadbike and go for a ride to muster the sheep or cattle. Mr Brennan assumed he was mustering stock which had wandered off down the river back to the Marouns property.
Mr Brennan indicates there is a benefit having someone live on the property and it is a common arrangement in the area. There was often stock theft from farms due to the remoteness of the properties and some people have caretakers living on their place for security and peace of mind.
Mr Brennan was aware that it was common for stock to escape into the bush and wander off into adjoining properties regularly. To keep control of your stock you had to go and retrieve them from surrounding properties at times and then fix the fence which may have been ruined by wild dogs or pigs. This can take days at a time and it is just a normal part of farming in Sofala.
In relation to the note that was annexed to Mr Stuart’s statement marked “D1”, namely “Tues 23/2 John mustered cattle Red Hill 2½ hours no charge”, based on Mr Brennan’s knowledge of the area, it was his view that the note quite likely meant that he had been mustering cattle back to John Maroun’s place from Red Hill as the cattle had wandered off their property, Red Hill being the name of Paul William’s property.
Mr Brennan recalls the weekend Mr Stuart died and says that he had a phone call from Mr Stuart on either the Friday night or the morning of the Saturday and he said words to the effect: “I’ve been mustering sheep off the river. Come and get yours”. I’ll have them penned up in the yards on sunrise with a mob of John’s”. We had arranged to meet up at the yards around midday on that Saturday.
He recalled that when he arrived at the yards, he saw Doug had mustered a mob of approximately 15 to 20 of John and George’s sheep, about six to seven of mine and a few rogues. The sheep were identified by PIC numbers which identifies the owner of the animal.
Michael Brennan has prepared a further statement dated 26 August 2022.[34] Mr Brennan prepared a statement in response to Eddy Pillotto’s statement and George Maroun’s statement. In this statement Mr Brennan indicates that they indeed collected sheep from the “Sunrise” yards on the Friday before Mr Stuart died. He says that Doug Stuart had rung him and said that half a dozen of his sheep were in the “Sunrise” yard and they went to collect them around 11.00am with his two sons as they were big sheep to throw in a ute. Mr Brennan observed other sheep in the yard and was told that they were George’s and John’s.
[34] Late documents dated 26. August 2022, page 3.
Mr Brennan said it’s the nature of the area that sheep and cattle move around including onto Mr Pillotto’s property as most locals would know.
In relation to permission to attend on Mr Pillotto’s property, Mr Brennan says that it was well understood that he had permission to get cattle off his property when needed.
In relation to matters in George Maroun’s statement, Mr Brennan says that he never cut any chain, however when he saw cattle on Kylie’s Run he would step the horse over wire where a tree had fallen on the fence, to get the stock back.

Other Evidence

Coroner’s report

The death was investigated by the New South Wales Coroner who has produced an opinion dated 21 June 2017.[35] The report outlines the cause of death being a head injury when the deceased was involved in a quadbike rollover on a rural property.
[35] Amended Application page 85.
The other relevant part of that investigation was that a finding that acute alcohol intoxication had most likely contributed to the mechanism of death. The level of alcohol was recorded as being 0.327 g/100ml.
The coroner’s report concluded that at that level of alcohol being present in the blood, it would be expected for there to be a significant impairment to judgement and coordination. There were also other non-toxic levels of benzodiazepines and an antidepressant detected. When benzodiazepines and alcohol are together their concurrent use may enhance their effects.

Tax returns

The 2017 tax return of Douglas Stuart has been provided.[36] The tax return indicates that Mr Stuart was earned his main salary as a farmhand/worker. The income is indicated to be $30,228. The tax return does not indicate any deductions claimed. The tax return was prepared by H&R Block Ltd Newcastle.
[36] Late documents 5 July 2022, page 31.
A 2016 tax return has also been provided.[37] That tax return indicates that Mr Stuart earned $40,195 with the main salary coming from being a farmhand/worker.
[37] Late documents 5 July 2022, page 64.
Australian taxation records have been produced from the tax returns filed on behalf of the Maroun family.[38] The tax returns cover the years 2015 to 2018. What is evident when perusing those tax returns is there is no deduction claimed in respect of any wages paid to Mr Stuart. The tax returns do make claims for matters such as electricity, fuel and oil, repairs, replacement tools and fodder.[39]

DISCUSSION

[38] Late documents dated 23 September 2022, pages 1-50.

[39] See page 24, late documents dated 23 September 2022.

Was the deceased a worker when he died?

The first hurdle for the applicant to climb is to establish that Mr Stuart was a ‘worker’ at the time of death.
Section 4 of the Workers Compensation Act provides that an "injury" means personal injuryarising out of or in the course of employment.
The applicant’s case is essentially that Mr Stuart was employed as a farm manager initially working two to three days per week and for which he anticipated being paid for his efforts and was also given the opportunity to occupy a house on the property rent-free however was liable to pay for electricity and telephone expenses.
The way Mr Stuart began living at the Maroun family property is disputed directly by the Maroun family members. What is not disputed however is that Mr Stuart occupied an old house on the family’s property rent-free on the understanding that he would be present when the Marouns were not in attendance.
Mr Brennan through his statement has provided support that this was a regular practice for landowners around Sofala in circumstances because of theft of stock. This is also supported by the evidence of George Maroun who stated to Senior Constable Isler in a statement on 9 March 2017 that Mr Stuart would “occasionally check on stock, which is cattle and sheep, further the last paid work was over 12 months ago and that he lived at the house rent-free as a caretaker of the property.”
There is various evidence of other people living in the community that saw Mr Stuart on the Maroun family property performing various tasks. No doubt Mr Stuart had a significant knowledge and skill set to bring to work that he observed needed to take place.
Whilst the bulk of the evidence seems to suggest that Mr Stuart was certainly not doing two to three days work for the Marouns a week, there was a significant amount of evidence to suggest that he was doing some work. Mrs Stuart has provided evidence that at some stage she and her husband obtained feed for the cattle on the farm that were in distress due to the lack of available food for them. To this end I find her evidence as to the damage to their vehicle to be most persuasive as to the existence of this work.
The evidence contained indicates that Mr Stuart was an experienced farm hand who had the skills necessary to carry out fencing, mustering cattle and sheep, spot spraying and tractor work.
The evidence contained in the documents does support a finding that the area in Sofala was hilly and rugged and that stock could and would escape and wander off. It was a normal part of farming to have to retrieve those stock and it seems to make sense that Mr Stuart if he was in the position of seeing stock wander off, knowing his background, that he would use his quadbike to muster sheep be it part of his duties or not. Ms Kimm’s evidence is quite strong in relation to the stock escaping and wandering off on to neighbouring properties. This is also consistent with the statement of Ms Kilby dated 13 October 2022 that there was some limited fencing on part of the property.
What is also not in dispute is that George Maroun provided the deceased with fuel for his quadbike to use on the property. It seems inconsistent that George Maroun would provide free fuel for Mr Stuart in circumstances where there wasn’t some mutual benefit for the Maroun farm.
Whilst there is a lot of evidence prepared in this case as to what Mr Stuart did or did not do for the Maroun family, it is to my mind, obvious that Mr Stuart was provided with a place to live in exchange for at the very least, minding the family farm while the Marouns were not present. It was of some advantage to the Marouns to have someone residing on the property permanently to keep an eye on it. To an even greater advantage, they had someone living there who had extensive farming skills and knowledge.
The applicant’s submissions refer to a decision of Harris v Cudgegong Sawing Pty Ltd,[40] a decision of his Honour Neilson J. This decision appears to be very apt to the present circumstances. In Harris, his Honour Neilson J said:[41]
“However, there is one further consideration that was extremely relevant to this case. A caretaker’s job is to live on site and keep an eye on things. His mere presence is a deterrent to the theft and the vandal. His job is to keep his eyes and ears open – to respond to any unusual activity, any suspicious noise, to act in an emergency”.
[40] (1995) 11 NSWCCR 678 (Harris).
[41] At [31].
Reliance was also placed on Mooney v White,[42] where the Commission observed:[43]
“Whilst driving a grader to make a dam, he was still able to keep his eyes out for any thief or vandal, able to respond to any unusual occurrence or sudden emergency. Whether his activities were voluntary, expected or absolutely required by his contract he could still act and was still acting as a caretaker … I cannot see any distinction between his being on a glider at the time of his injury or being struck by the falling limb of a tree when doing something not strictly required by the contract e.g., attending to his own vehicle. To use an industrial analogy, he ‘clocked on’ when he entered the site and ‘clocked off’ when he left it, unless they were on the respondent’s premises.
In addition to the observations of Neilson J, there is another way of viewing the present matter and it involves I think asking a rhetorical question: If some sudden emergency arose while the applicant was at the farm and he became aware of it because his eyes and ears were open and if that sudden emergency occurred outside of the 5 days per week, 4 hours per day nominated by the respondent, would the applicant have been expected to use his best endeavours to attend to that emergency? In my view the answer is clearly in the affirmative. When viewed in this way, the reason for the applicant venturing on to the balcony is of no relevance, nor in my view is a mechanism of the fall. It is sufficient in this jurisdiction if the applicant established that his injury arose out of or in the course of his employment and accepting (as I do) that the applicant would be expected to respond to any event potentially adversely affecting the property, its premises and livestock whatever the time of day, that brings the applicant’s employment under the umbrella of a caretaker role who is in the course of his employment whilst he is present at the property.”
[42] [2022] NSW PICPD 13.
[43] Paragraphs 30-32.
I agree with the applicant’s submissions that when the deceased was on site, he was in effect acting in the interests of the Marouns and to their benefit, that is that he was able to act as a deterrent to the theft and to vandals.

So far as the submissions are concerned regarding ‘an intention to create legal relations’ between the deceased and the first respondent, I find in favour of the applicant. I have made a factual finding that the applicant acted as a caretaker and in consideration for this was role was provided with free accommodation and at time fuel and food.
I therefor accept and make a finding that Mr Stuart’s circumstances fall with the ambit of s 4 of the 1987 Act.

Substantial Contributing Factor

The next hurdle for the applicant is to establish that employment was a substantial contributing factor to the death.
Section 9A of the 1987 Act provides:
“(1)    No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
(2)     The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)--
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment,
(e) the worker's state of health before the injury and the existence of any hereditary risks,
(f) the worker's lifestyle and his or her activities outside the workplace.
(3)     A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following--
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment,
(b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury.”
There is significant importance in the evidence of Mr Wells as to what time Mr Stuart left the house. It is trite to observe that there is some inconsistency in the evidence from Mr Wells as to what time Mr Stuart left the house on his quadbike and at times it has been 5.30pm and then 7.15pm. This is an inconsistency that has not been explained by Mr Wells and does cause me some concern.
As to the time, there is some assistance provided by the evidence of Mr Paul Williams. Mr Williams was the owner of the property next to the Marouns. He states that he attended the Sofala Hotel at approximately 5.00pm on 5 March 2017 and had a discussion with Mr Stuart and another man, who were both intoxicated. After this encounter, Mr Wells then said they left the Hotel and returned to the property where Mr Stuart had a further sleep and then consumed two stubbies of beer.
Given that uncontradicted evidence, I find it impossible to accept that Mr Stuart left on his quadbike around 5.30pm. The activity described between 5.00pm and leaving on the quadbike fits appropriately into a time of 7.15pm. I find it more likely than not that this indeed was approximately the time that Mr Stuart left on his quadbike.
What evidence does stand out and is uncontradicted is that the place where the deceased was located did not appear to be any part of the farm where stock were located. If there was evidence that stock were located in that general area, then such an assumption made by Mr Wells made, that is he was checking on the stock, might be one that the Commission would accept. However, there is no evidence before me that leads me to make a comfortable finding that the deceased was travelling on his quadbike in connection with an activity on the farm.
I will no turn directly to the provisions of s 9A of the 1987 Act.
(a)    the time and place of the injury:
There is no direct evidence that the applicant was actively engaged in employment activities at the time of his death. The unchallenged evidence is that there was no stock near the location that Mr Stuart was found, nor any paths. Rather the stock were three paddocks away.[44]
[44] Late documents dated 5 July 2022, paragraph 34.
Whilst I accept that the nature of farming in Sofala meant that at time stock strayed onto neighbouring properties, there is no evidence that this had occurred on 15 March 2017 requiring Mr Stuart to leave on his quadbike and contain them.
I am left in a position where I am not persuaded that there was any work-related reason for Mr Stuart to be on his quadbike on the evening of 15 March 2017 in the area that he was.
(b)    the nature of the work performed and the particular tasks of that work:
I have found that Mr Stuart was employed as a caretaker on the Marouns property. I also accept given his extensive experience on farms that he would assist at times in running the property.
I cannot identify any particular task that would have required Mr Stuart to be on his quad bike at that time in that place. My findings may have been different if the quad bike was found in an area where stock were. Unfortunately for the applicant, no such evidence has been placed before me.
(c)    the duration of the employment:
Mr Stuart had been living on the Maroun property for some time, this factor does not have any significance in my determination.
(d)    the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment:
Mr Stuart was heavily intoxicated at the time of his death. The Coroner’s report indicated that the applicant would have been significantly impaired. It is difficult to say that the injury would have occurred at the same time or at the same stage in his life.
(e)     the worker's state of health before the injury and the existence of any hereditary risks:
Mr Stuart was heavily intoxicated at the time of death such his judgment was likely to have been impaired. He also suffered from a prior disability though there is no evidence that this contributed to the accident.
(f)      the worker's lifestyle and his or her activities outside the workplace:
Mr Stuart was heavily intoxicated at the time of his death.
I agree that the onus is clearly on the applicant to prove what activity the deceased was engaged in at the time of the accident. The applicant asks me to find that at the time of death Mr Stuart was involved in a work-related activity, namely traversing the property to check on the Maroun’s sheep.
I am unable to make such a finding. The undisputed evidence before me is that there were no sheep in the area that Mr Stuart was found.
I was then asked to assume that Mr Stuart may well have been on his ‘way back’ to his dwelling at the time of death, presumably after having checked the sheep. There is no evidence before me that would permit such a finding. I have not been provided with any explanation as to the route he may have taken to mount such a finding.
I observe that there has been significant dispute as to whether Mr Stuart and Mr Wells assisted the Marouns on the morning of his death or not. In the circumstances if my findings I am not required to determine that dispute as I have focused on the events of the evening and have determined that the applicant has not established any employment activity that was being performed at that time of the accident. I simply comment that if Mr Stuart had assisted that day, he would have known that the sheep where not in the locale that he was riding his bike. This does not assist the applicant’s case as it would not discharge the onus in relation to substantial contributing factor based upon my findings.
The applicant needs to show that the employment was a substantial contributing factor to the injury and this has not been established.

[2023] NSWPIC 219

12 May 2023