UPVC Window Solutions Pty Ltd v Workers Compensation Nominal Insurer (icare) - [2023] NSWPICPD 11

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	UPVC Window Solutions Pty Ltd v Workers Compensation Nominal Insurer (icare) [2023] NSWPICPD 11
APPELLANT:	UPVC Window Solutions Pty Ltd
FIRST RESPONDENT:	Workers Compensation Nominal Insurer (icare)
SECOND RESPONDENT:	Ross Markey
INSURER:	Workers Compensation Nominal Insurer (icare)
FILE NUMBER:	A1-W2811/21
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	14 March 2023
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 6 April 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – ‘worker’ – consideration of Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; 398 ALR 404; ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; 398 ALR 603; application of those authorities where a contract is oral – Secretary, Attorney-General’s Department v O’Dwyer [2022] FCA 1183; s 9B of the Workers Compensation Act 1987 in respect of a ‘stroke injury’ – consideration of De Silva v Secretary, Department of Finance, Services and Innovation [2015] NSWWCC 279 and associated decisions; section 352(5) of the 1987 Act; credit findings and cross-examination in the Commission – Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34; New South Wales Police Force v Winter [2011] NSWCA 330; State Rail Authority of NSW v Earthline Constructions Pty Ltd [1999] HCA 3; 73 ALJR 306; 160 ALR 588; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; Schedule 1, cl 2 of the Workplace Injury Management and Workers Compensation Act 1998 – ‘deemed worker’ – application of Humberstone v Northern Timber Mills [1949] HCA 49; 79 CLR 389; Scerri v Cahill (1995) 14 NSWCCR 389 and associated authorities – consideration of the phrase ‘incidental to a trade or business regularly carried on’; application of Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; 77 ALJR 1088; Wang v State of New South Wales [2019] NSWCA 263
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr A Neilson, solicitor
AEN Legal
First Respondent:
Mr D A Baker, counsel
HWL Ebsworth Lawyers
Second Respondent:
Mr S McMahon, counsel
Whitelaw McDonald
DECISION UNDER APPEAL
MEMBER:	Ms C McDonald
DATE OF Member’s DECISION:	6 April 2022

INTRODUCTION AND BACKGROUND

Ross Markey (Mr Markey) was involved in an incident on 30 November 2020 whilst performing work activities at the Somersby factory premises of UPVC Window Solutions Pty Ltd (UPVC). UPVC manufactured and fitted PVC windows and doors for sale to the general public and builders. Robert Clark (Mr Clark) was a director of UPVC. On 30 November 2020, Mr Markey was assisting Mr Clark as Mr Clark sought to extract a 5.8 metre plastic single door profile from its packaging. Mr Clark was on the mezzanine level of the premises and Mr Markey was on the ground level, reaching up to try to take hold of the end of the profile as it was removed from its packaging. As it came away the profile “whipped” and struck Mr Markey, who fell to the ground. Mr Markey continued working on the following two days. On the morning of 3 December 2020 Mr Markey was unable to get up. He was taken by ambulance to Gosford Hospital where he was kept for 17 days. He was told he had suffered a stroke.[1]
[1] Mr Clark’s statement 7/2/21, Miscellaneous Application, p 40, [32]–[33]; report of BH Investigations Pty Ltd, 9/2/21, Nominal Insurer Reply, pp 7–8.
It is common ground that UPVC did not hold a policy of workers compensation insurance as at 30 November 2020. A claim was made on the Workers Compensation Nominal Insurer (the Nominal Insurer). The Nominal Insurer accepted provisional liability for the claim on 14 December 2020.[2] Following investigations, the Nominal Insurer accepted liability for the claim in correspondence dated 5 March 2021.[3] The Nominal Insurer issued a notice under s 145(1) of the Workers Compensation Act 1987 (the 1987 Act) dated 9 June 2021 for recovery from UPVC of a sum of $21,852.59 which represented compensation paid on the claim up to 21 May 2021 (the s 145 notice).[4] UPVC, the applicant in the proceedings, seeks determination pursuant to s 145(3) of its liability in respect of the payment concerned. The Nominal Insurer is the first respondent in the proceedings and Mr Markey is the second respondent.
[2] Miscellaneous Application, pp 21–23.
[3] Miscellaneous Application, pp 24–26.
[4] Miscellaneous Application, pp 30–33.
The proceedings were listed for hearing on 21 February 2022. The hearing was conducted remotely on an audio-visual platform. Mr Neilson, solicitor, appeared for UPVC, Mr Baker, counsel, appeared for the Nominal Insurer, and Mr McMahon, counsel, appeared for Mr Markey. The issues were described as whether Mr Markey was a worker or a deemed worker, the nature of the injury, the application of s 9B of the 1987 Act to the extent to which there was a stroke injury, and whether Mr Markey had any capacity for work during the relevant times.[5] The parties did not persevere with their previously stated intentions to seek leave to cross-examine. The legal representatives made submissions and the Member reserved her decision.
[5] UPVC Window Solutions Pty Ltd v Workers Compensation Nominal Insurer (icare) [2022] NSWPIC 146 (the reasons), [10].
The Commission issued a Certificate of Determination dated 6 April 2022. The Member accepted that Mr Markey was employed by UPVC on 30 November 2020 when he suffered injury to the base of his skull, which resulted in a stroke injury within the meaning of s 9B of the 1987 Act, together with injury to the right thumb. The Member found that the employment gave rise to a significantly greater risk of suffering the stroke injury than had Mr Markey not been employed in employment of that nature. She found that Mr Markey had no current work capacity until at least 26 May 2021 and required medical treatment until that date. She found the Nominal Insurer had paid weekly compensation and medical expenses consistent with the list of payments attached to the s 145 notice issued on 9 June 2021. She determined that UPVC was liable to reimburse the sum of $21,852.59 described in the s 145 notice.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

THE MEMBER’S REASONS

The Member noted the parties’ advice that the s 145 notice applied to payments made by the Nominal Insurer up to 26 May 2021.[6] The Member summarised Mr Clark’s statements dated 7 February 2021 and 6 July 2021.[7] She summarised the reasons given by the Nominal Insurer for accepting liability, in its letter to Mr Clark dated 23 April 2021.[8] The Member summarised Mr Markey’s statements dated 21 December 2020 and 28 September 2021.[9] She summarised a statement from Mr Romano, who also worked at the UPVC factory, dated 17 November 2021.[10] She summarised an undated statement from Mr Hume, a friend of Mr Markey, that described Mr Markey’s condition when they dined together on the night of 30 November 2020.[11] She summarised a statutory declaration from Ms Cooke dated 22 December 2020 that dealt with Mr Markey’s condition on the morning of 3 December 2020, when paramedics attended him.[12]
[6] Reasons, [23].
[7] Reasons, [12]–[21].
[8] Reasons, [22].
[9] Reasons, [24]–[31], [33]–[38].
[10] Reasons, [39]–[43].
[11] Reasons, [45].
[12] Reasons, [44].
The Member summarised medical material from the Central Coast Local Health District, Kincumber Medical Centre, Avoca Beach Physiotherapy, and Hunter Brain Injury Service.[13] She summarised medicolegal reports from Drs Hopcroft, Williams and Walker.[14] She summarised the submissions made by the legal representatives for each of the parties.[15]
[13] Reasons, [47]–[61].
[14] Reasons, [62]–[76].
[15] Reasons, [78]–[114].
The Member referred to an argument made by UVPC, that the s 145 notice was “invalid because it referred to an injury to Mr Markey’s thumb in respect of which there was no compensable injury because there was no reference to it in the medical certificates”. She said there was no authority referred to in support of this argument. She described the Commission’s task as being to “determine liability in respect of the payments which have been made”.[16]
[16] Reasons, [117]–[120].
The Member dealt initially with the issue regarding whether Mr Markey was a ‘worker’ within the definition in s 4 of the 1987 Act. She said the Commission had traditionally “considered the multi-factorial test”. She referred to Hollis v Vabu Pty Ltd[17] and On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3).[18] The Member noted a submission by UVPC that, since the decisions in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd[19] and ZG Operations Australia Pty Ltd v Jamsek,[20] the multi-factorial test no longer applies. The Member said that it was “necessary to consider those decisions and their context”. She observed that these recent High Court decisions “concerned relationships which were governed by a written contract”.[21]
[17] [2001] HCA 44; 207 CLR 21 (Hollis).
[18] [2011] FCA 366; 279 ALR 341 (On Call Interpreters).
[19] [2022] HCA 1; 398 ALR 404 (Personnel Contracting).
[20] [2022] HCA 2; 398 ALR 603 (Jamsek).
[21] Reasons, [121]–[123].
The Member quoted passages from Personnel Contracting.[22] She quoted from Jamsek at [8], where the plurality said that the relationship in that case “was to be determined by reference to the rights and duties created by the written agreement which comprehensively regulated that relationship”.
[22] Reasons, [124]–[131].
The Member rejected a submission by Mr Neilson that Mr Markey did not respond to the elements of Mr Clark’s statement which dealt with the making of the contract. She said that Mr Markey, in his statement dated 28 September 2021, “responded to and disagreed with Mr Clark’s evidence about the conversation which took place”. She rejected Mr Neilson’s submission that “any conduct after the first conversation was irrelevant”. She said that in the current matter “the contract was entirely oral”. The Member said the evidence of Mr Markey and Mr Clark, relating to their first meeting, differed “dramatically as to what was said”. She said: “It is not possible to form a clear picture of the conversation which took place without accepting the evidence of one in preference to the other.”[23] The Member said:
“136. However, much of what Mr Markey said about the way things were done in UPVC’s factory is supported by the evidence of Mr Romano and some by contemporaneous text messages and photographs. Where there is a dispute between Mr Markey and Mr Clark, I prefer the evidence of Mr Markey, particularly where there is independent support.
137. The plurality in Personnel Contracting specifically accepted that there may be cases in which it is appropriate ‘in the characterisation of a relationship as one of employment or of principal and independent contractor, to consider ‘the totality of the relationship between the parties’ by reference to the various indicia of employment that have been identified in the authorities.’ This is one of those cases.
138. The indicia to be considered in determining if a person is a worker or contractor are not of equal weight. The most important question is that identified in Personnel Contracting and in On Call as cited in [Malivanekv Ring Group Pty Ltd[24]] – whether the person is an entrepreneur working in their own business or serving in the business of an employer. The facts of this case support the finding that Mr Markey was working in the business of UPVC.”
[23] Reasons, [134]–[135].
[24] [2014] NSWWCCPD 4.
The Member set out a summary by Dicker SC DCJ, in Moffett v Robin,[25] to which she was referred in submissions and which she described as “helpful in balancing the indicia”.[26] The Member considered a number of arguments made by the parties:
[25] [2021] NSWDC 211 (Moffett), [488].
[26] Reasons, [139].
(a)    Mr Markey had an ABN for work he had undertaken before he met Mr Clark, which he held since conducting a massage therapy business. Mr Romano said that he had been requested by Mr Clark to obtain an ABN. Mr Markey had advertised and invoiced prior to August 2020. This did not mean that he was a contractor when he worked at UPVC. A person might be self-employed until commencing with an employer.[27]
(b)    Mr Markey did only two jobs from March to August 2020. After meeting Mr Clark in August 2020 he did two jobs (outside his duties with UPVC). One was a repair occasioned by previous work; the other was helping a friend unload a shipping container. Neither was necessarily consistent with an ongoing business.[28]
(c)    Mr Markey did not set his own hourly rate. He asked for $26.70 per hour, accepted $25 per hour offered by Mr Clark, and Mr Clark then reduced the rate to $20 per hour because Mr Markey was slow. Mr Markey said he was not consulted about the reduction. Mr Clark then increased the rate to $25 per hour when Mr Markey’s performance improved. Mr Clark said nothing about the hourly rate in his second statement. The unilateral reduction was “a factor pointing towards employment”.[29]
(d)    The Member accepted that Mr Markey, like Mr Romano, worked full-time, five days per week. This was confirmed by Mr Markey’s invoices.[30]
(e)    The Member accepted that Mr Markey’s hours were set by Mr Clark. Mr Clark did not agree to requests from both Mr Markey and Mr Romano to start earlier. When Mr Markey sought time off Mr Clark agreed on some occasions and declined on at least one occasion. He told Mr Markey to plan time off in January.[31]
(f)    The invoices provided by Mr Markey were “really in the nature of timesheets”. They referenced hours rather than particular jobs. The presence of an ABN on the invoices did not assist as Mr Clark asked for this to be included.[32]
(g)    Mr Markey’s work was to fulfill orders that UPVC had. There was no evidence that Mr Markey had any role in obtaining the orders. Other than a few hand tools, Mr Markey used the machinery in the factory and was instructed in its use by Mr Clark.[33]
(h)    Mr Markey was told when he should arrive at a site for an installation. The Member accepted the evidence of Mr Markey and Mr Romano that they usually went to sites in a work vehicle. The Member commented that it was difficult to see how windows and doors would be transported from the factory to sites without one.[34]
(i)    The Member did not accept Mr Clark’s evidence that “UPVC t-shirts were found by Mr Markey in the rag pile”. She said this was not supported by the photograph attached to Mr Markey’s second statement. She said Mr Markey’s evidence of receiving t-shirts previously worn by others who no longer worked with UPVC was plausible and consistent with Mr Romano’s evidence. The inference was that the t-shirts were worn during the installation of UPVC’s products.[35]
(j)    The Member said that Mr Clark did not pay for leave, did not make superannuation contributions and did not deduct tax. She described these as matters that were not determinative and involved decisions made by Mr Clark.[36]
[27] Reasons, [140].
[28] Reasons, [141].
[29] Reasons, [142].
[30] Reasons, [143].
[31] Reasons, [144].
[32] Reasons, [145].
[33] Reasons, [146].
[34] Reasons, [147].
[35] Reasons, [148].
[36] Reasons, [149].
The Member concluded:
“150. Taking all of those matters into account, it is clear that Mr Clark controlled the way in which the work was done and the conditions under which the work was done. There is no suggestion that Mr Markey was free to delegate the work and the evidence about the way in which the work was done shows that delegation would not have been acceptable to UPVC. I agree with Mr McMahon and Mr Baker that the position of Mr Markey and Mr Romano should be contrasted to that of [Alistair], the ‘real’ contractor who was brought in from time to time.
151. I am satisfied that Mr Markey was a worker employed by UPVC. From August 2020 until 30 November 2020 he was working in the business of UPVC and not in his own business.”
The Member referred to cl 2 of Sch 1 to the 1998 Act and to an argument made by the Nominal Insurer and Mr Markey, in the alternative, that Mr Markey was a deemed worker. The Member said that Mr Markey did not employ anyone to assist him and that he did not regularly carry on a trade or business during the relevant period. The two small jobs he completed during the period were not inconsistent with this conclusion. She said: “If I am incorrect in the finding that Mr Markey was a worker, the evidence supports the conclusion that he was a deemed worker.”[37]
[37] Reasons, [153].
The Member dealt with UPVC’s argument going to the occurrence of ‘injury’. She referred to an argument by UPVC which challenged the occurrence of an injury to the right thumb, on the basis this was not referred to in the medical certificates. The Member referred to Mr Clark’s statement dated 7 February 2021, given to an investigator. Mr Clark there said that Mr Markey had complained of injuring his thumb, and Mr Clark saw Mr Markey strap his thumb. The Member observed that Mr Clark, in his statement prepared for the current application, did not refer to the injury. The Member described it as inappropriate, having regard to Mr Clark’s own evidence, that UPVC submitted there was no injury to the thumb. She said clearly there was a sudden pathological change in the thumb in the injurious event. She said the submission by UPVC regarding the validity of the s 145 notice was not relevant to the issue of ‘injury’. She said Dr Hopcroft’s opinion that the injury had resolved, in his report dated 2 November 2021, was not relevant to the current application, which related only to payments up to 26 May 2021. The Member said there was clearly an injury to the side of Mr Markey’s neck, photographs taken in hospital showed a healing wound. She said there was no submission that employment was not a substantial contributing factor to the injury.[38]
[38] Reasons, [154]–[162].
The Member referred to the submission by UPVC, based on a history in the material produced by Hunter Brain Injury Service, that Mr Markey collapsed while running. She said that UPVC submitted an inference should be drawn that “there were other events of which the doctors were not aware”. The Member noted the events on the morning of 3 December 2020 were supported by Ms Cooke – Mr Markey was unable to get out of bed and Ms Cooke had to open the house for the paramedics. There was no evidence of a collapse while running. That history “was recorded in one clinical note prepared some time after the injury”. The Member referred to Davis v Council of the City of Wagga Wagga[39] and Nominal Defendant v Clancy,[40] authorities that deal with the need to exercise caution in dealing with clinical notes from treating practitioners. She said she declined “to draw the inference that UPVC invited me to draw based on one comment in notes prepared for the purpose of treatment by a physiotherapist at Hunter Brain Injury Service”.[41]
[39] [2004] NSWCA 34, [35].
[40] [2007] NSWCA 349.
[41] Reasons, [163]–[167].

The Member turned to the issue of the application of s 9B of the 1987 Act. She said:
“The tenor of the medical evidence from Gosford Hospital, Dr O’Brien, Dr Walker and Dr Williams is that when he was hit by the long piece of plastic, he suffered an injury to his vertebral artery which resulted in a stroke.”[42]
[42] Reasons, [168].
After quoting from Kooragang Cement Pty Ltd v Bates[43] and Bouchmouni v Bakhos Matta t/as Western Red Services,[44] the Member said:
“If it was not for s 9B, the medical evidence supports the conclusion that the stroke suffered by Mr Markey was a consequential condition, suffered as a result of the blow to the side of his neck, which resulted in a vertebral artery dissection. However the words of s 9B(1) are broad – in particular the use of ‘results in or is associated with.’ The section appears intended to preclude compensation for a consequential stroke unless the provisions of s 9B are met. It is therefore necessary to consider s 9B in respect of the consequential condition.”[45]
[43] (1994) 35 NSWLR 452; 10 NSWCCR 796, 461G, 463–464.
[44] [2013] NSWWCCPD 4, [66]–[67].
[45] Reasons, [172].
The Member referred to the discussion of s 9B in De Silva v Secretary, Department of Finance, Services and Innovation (a case I decided as a Senior Arbitrator, involving a ‘heart attack’).[46] The Member noted that she had previously considered s 9B in the context of a ‘stroke injury’, in a fashion consistent with the approach adopted in De Silva. She referred to Presidential decisions of mine in Renew God’s Program Pty Ltd v Kim[47] and Secretary, Department of Communities and Justice v Galea[48] (both heart attack cases). She set out a summation of the relevant principles as identified in Galea.[49]
[46] [2015] NSWWCC 279 (De Silva).
[47] [2019] NSWWCCPD 45 (Kim).
[48] [2021] NSWWCCPD 1 (Galea).
[49] Reasons, [174]–[182].
The Member rejected the submission by UPVC that s 9B could not be satisfied in the absence of medical evidence addressing the section. She said that, consistent with Kim, it was necessary to consider whether the section was satisfied on the whole of the evidence. She noted there was no dispute regarding the mechanism of the injurious event. She said that Drs Walker and Williams explained the chain of causation. UPVC had no medical evidence and there was no medical evidence that raised an alternative cause of the stroke. The Member made a finding that “the blow to the base of Mr Markey’s skull caused the vertebral artery dissection which led to the stroke”.[50]
[50] Reasons, [183]–[185].
The Member referred to an argument by UPVC that Kim and Galea were wrongly decided, having regard to the phrase ‘the nature of the employment concerned’ in s 9B. The Member said that the “employment concerned is Mr Markey’s particular employment at UPVC, not the general classification of carpenter”. The Member said that UPVC’s argument was made without reference to De Silva and the interpretation of the words applied in Kim and Galea.[51]
[51] Reasons, [186].
The Member referred to UPVC’s argument that there was “no lay evidence to support the contention that the nature of Mr Markey’s employment resulted in a greater risk of suffering a stroke because the injury was a freak accident”. She rejected the attempt to characterise the event as a “freak accident”. The Member said that many compensable work injuries might be described in that way. She said a consequence of the test in s 9B was that “a worker who suffers a heart attack or stroke as a result of a non-work related condition or lifestyle factors while in the course of his or her employment will not be entitled to compensation merely because they were at work”. The Member said the relevant ‘injury’ for the purposes of s 9B was the blow to the base of the skull which caused a vertebral artery dissection and led to the stroke. It occurred in the course of employment and employment was a substantial contributing factor. It occurred carrying out a task that was inherently within the scope of Mr Markey’s employment. There was a significant risk arising from how the factory was set up and the materials used by UPVC to produce its products. The activity in which Mr Markey was engaged exposed him to a risk of being struck.[52] The Member made a finding:
“I am satisfied that Mr Markey’s injury was suffered because the nature of his specific employment at UPVC gave rise to a significantly greater risk of a blow to the side of the head than if he had not been so employed.”[53]
[52] Reasons, [187]–[193].
[53] Reasons, [194].
The Member dealt briefly with quantum. There was certification that Mr Markey had no current work capacity until at least 21 July 2021, a date beyond the period the subject of the s 145 notice. There was no evidence to the contrary. Given the occurrence of the stroke, it was unsurprising that this was mentioned in the certificates to the exclusion of the thumb. The Member referred to specific references in the medical evidence to the injury to the thumb. She said she was satisfied compensation paid by the Nominal Insurer was compensation for which UPVC was liable.[54] The Member made formal findings and ordered that UPVC reimburse the Nominal Insurer the sum of $21,852.59 within 28 days.[55]
[54] Reasons, [195]–[198].
[55] Reasons, [199]–[207].

GROUNDS OF APPEAL

UPVC raises the following grounds of appeal:
(a)    The Member erred, as a matter of law and ultimately fact, in finding that Mr Markey was a worker within the meaning of s 4 of the 1998 Act: Reasons [121]–[151] by misapplying the correct test to determine worker status and thus taking into account irrelevant matters. The Member should have concluded as a matter of law and fact that Mr Markey was not a worker. (Ground No. 1)
(b)    In the alternative to (a), should it be concluded the correct test was applied, the Member erred, as a matter of fact and law, in properly considering and weighing the evidence in determining that Mr Markey was a worker within the meaning of s 4 of the 1998 Act: Reasons [136]–[151]. The Member should have concluded as a matter of law and fact that Mr Markey was not a worker. (Ground No. 1(a))
(c) The Member erred, as a matter of law and fact, in finding and concluding that Mr Markey was a deemed worker within the meaning of Clause 2, Schedule 1 to the 1998 Act: Reasons [152]–[153] by misapplying the test to determine deemed worker status and the question of trade and or business. The Member should have concluded as a matter of law and fact that Mr Markey was not a deemed worker. (Ground No. 2)
(d) The Member erred, as a matter of law and fact, in her construction and application of s 9B of the 1987 Act: Reasons [183]–[194] by failing to properly consider and apply the correct test set by s 9B, the evidentiary onus established by s 9B and whether the evidence submitted was sufficient to discharge the onus of the worker. The Member ought to have concluded that s 9B operated to preclude payment of compensation with respect to the stroke injury (as found). (Ground No. 3)
(e)    The Member erred in law concluding that the medical evidence relied upon by Mr Markey was sufficient to justify a conclusion that he had full incapacity because of the alleged thumb injury with the consequence being that the appellant was liable to the Nominal Insurer with respect to the s 145 notice as it concerns compensation payable for the thumb injury: Reasons [197]–[198]. The Member should have concluded that there was insufficient evidence to support incapacity associated with the thumb injury. (Ground No. 4)
(f) The Member erred, as a matter of fact and law, in concluding that the appellant was liable to meet the s 145 notice issued by the Workers Compensation Nominal Insurer: Reasons [206]. (Ground No. 5)

THE NATURE OF THE APPEAL

This appeal is brought pursuant to s 352(5) of the 1998 Act which provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Northern NSW Local Health Network v Heggie[56] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519.”[57]
[56] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[57] Heggie, [72].
In Raulston v Toll Pty Ltd[58] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[59] to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a)    [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c)     It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.”[60]
[58] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[59] (1966) 39 ALJR 505, 506.
[60] Raulston, [19].

LEGISLATION

The term ‘worker’ is relevantly defined in s 4 of the 1998 Act in the following terms:
“worker means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing) …”.
Clause 2 of Sch 1 to the 1998 Act relevantly provides:
“(1) Where a contract—
(a) to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor’s own name, or under a business or firm name), or
(b) (Repealed)
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.”
Section 9B of the 1987 Act provides:
“9B    No compensation for heart attack or stroke unless nature of employment results in significantly greater risk
(1)     No compensation is payable under this Act in respect of an injury that consists of, is caused by, results in or is associated with a heart attack injury or stroke injury unless the nature of the employment concerned gave rise to a significantly greater risk of the worker suffering the injury than had the worker not been employed in employment of that nature.
(2)     In this section—
heart attack injury means an injury to the heart, or any blood vessel supplying or associated with the heart, that consists of, is caused by, results in or is associated with—
(a) any heart attack, or
(b) any myocardial infarction, or
(c) any myocardial ischaemia, or
(d) any angina, whether unstable or otherwise, or
(e) any fibrillation, whether atrial or ventricular or otherwise, or
(f) any arrhythmia of the heart, or
(g) any tachycardia, whether ventricular, supra ventricular or otherwise, or
(h) any harm or damage to such a blood vessel or to any associated plaque, or
(i) any impairment, disturbance or alteration of blood, or blood circulation, within such a blood vessel, or
(j) any occlusion of such a blood vessel, whether the occlusion is total or partial, or
(k) any rupture of such a blood vessel, including any rupture of an aneurism of such a blood vessel, or
(l) any haemorrhage from such a blood vessel, or
(m) any aortic dissection, or
(n) any consequential physical harm or damage, including harm or damage to the brain, or
(o) any consequential mental harm or damage.
stroke injury means an injury to the brain, or any of the blood vessels supplying or associated with the brain, that consists of, is caused by, results in or is associated with—
(a) any stroke, or
(b) any cerebral infarction, or
(c) any cerebral ischaemia, or
(d) any rupture of such a blood vessel, including any rupture of an aneurism of such a blood vessel, or
(e) any subarachnoid haemorrhage, or
(f) any haemorrhage from such a blood vessel, or
(g) any harm or damage to such a blood vessel or to any associated plaque, or
(h) any impairment, disturbance or alteration of blood, or blood circulation, within such a blood vessel, or
(i) any occlusion of such a blood vessel, whether the occlusion is total or partial, or
(j) any consequential physical harm or damage, including neurological harm or damage, or
(k) any consequential mental harm or damage.”

EVIDENCE GOING TO THE PARTIES’ LEGAL RELATIONSHIP

Mr Markey’s statements

Mr Markey gave a statement dated 21 December 2020.[61] He said he completed a Certificate II in General Construction in 2007 and thereafter worked in construction “wherever I could pick up work”. He obtained Certificate III carpentry qualifications in 2020 and intended finishing the “joinery components” in the following year. He said he held “a Contractor’s Licence, for being a ‘Carpenter’, issued by NSW Fair Trading”. He had a “Workplace Health and Safety White Card”, “High Risk Work Licence from Safework NSW” and a NSW driver licence. He said that from February to May 2020 he worked with Mr Carmody in Eastwood. From late May 2020 to 10 August 2020 he was unemployed, subject to two “one off jobs” for individual property owners that paid $533 and $370. One of these was a “carpentry and gardening job”, the other was dismantling a solar panel system on 15 and 16 June 2020. [62]
[61] Markey statement 21/12/20, Nominal Insurer Reply, pp 16–32.
[62] Markey statement, [30]–[33].
Mr Markey said that he did not complete an application form for employment with UPVC. He said there was no written contract of employment.[63] Mr Markey stated that Mr Clark interviewed him, the week before he commenced as a “carpenter and Joiner”. He said he commenced employment with UPVC on 10 August 2020. [64]
[63] Markey statement, [43]–[44].
[64] Markey statement, [34].
Mr Markey said that he was “employed on a full-time permanent basis, working the specified hours of 8:30am to 5:00pm, unless he needed me to commence at 7:30am on installation days which meant working longer hours”. He stated that he asked about “starting earlier at 7am on a regular basis, but that was declined by Rob [Clark]”. He said that prior to his employment he “was pre-approved” for three rostered days off and one public holiday, to permit him “to attend two ski weekend holidays that were pre-booked”. He asked for one further rostered day off to permit him “to ski the full last day of the ski season”, which Mr Clark declined.[65]
[65] Markey statement, [42].
Mr Markey stated “[w]hen I started I was to be paid weekly”. He said that he “was not paid for the first four weeks because [Mr Clark] wanted the timesheets supplied electronically in a particular format … He would not accept my handwritten timesheets”. He said he was paid in his fifth week “after getting the timesheet format correct” on a document supplied to him by Mr Clark. The template contained “the UPVC logo and letterhead” and he was paid regularly thereafter.[66]
[66] Markey statement, [38].
Mr Markey stated that his rate of pay when he “started was $25.00 gross per hour, but that rate was reduced in the first week to $20.00 gross per hour by [Mr Clark] without consultation”. Mr Markey stated that he worked for $20.00 per hour for eight weeks until the resignation of “a fellow employee, Adrian R[omano]”, who was more experienced at joinery. Mr Markey stated that the “week after Adrian left, [Mr Clark] increased [Mr Markey’s] rate of pay back up to $25.00 gross per hour”. Mr Markey stated that he was being paid less than the award wage, which was “$26.00 entry level up to $38.00 per hour”, but he was “desperate to be employed so I just accepted it”. He stated that Mr Clark never asked for details of his superannuation fund, nor did he pay “public holidays, annual leave, sick leave” or deduct tax.[67]
[67] Markey statement, [39]–[41].
Mr Markey stated that he “wore a UPVC t-shirt with the company logo, I drove the company work van and forklift, and I had a key to the premises”.[68] He stated that after Mr Romano left, in Mr Markey’s ninth week, he “explained to [Mr Clark] that he was having trouble working each day for five hours without a break”. He said that Mr Clark was “understanding” and since that time he “managed on most days to get a 10 to 15 minute morning tea break to allow [him] to eat”.[69]
[68] Markey statement, [49].
[69] Markey statement, [52].
Mr Markey’s statement went on to list various aspects of his working relationship with Mr Clark. Seeking to avoid factors already referred to above, these included the following:
(a)    he was subject to a “code of conduct” although he was never given a copy of it;
(b)    he was not given an induction on starting;
(c)    Mr Clark supervised him;
(d)    he said Mr Clark controlled where [he] worked, he started and finished each day in the joinery at Somersby and either worked there or went onsite doing installations;
(e)    he could not subcontract his work;
(f)    his duties were performed at the Somersby joinery or on-site doing installations;
(g)    requests to start work earlier than the allotted time were not permitted;
(h)    working for others during his full-time hours at UPVC was not permitted; he did not advertise his services whilst working with UPVC;
(i)    he was supplied with work shirts and polar fleece tops bearing a UPVC logo;
(j)    Mr Clark supplied earmuffs but Mr Markey used his own which were of higher quality. Mr Markey supplied his own trousers or shorts, steel capped boots, Ninja gloves, earplugs, and respirator. He also supplied his own hand tools. Other plant and tools were supplied by UPVC;
(k)    he was qualified to perform the work he was doing, which was his normal trade and occupation;
(l)    he had an ABN since 1 July 2000, used in a previous remedial massage therapy business, and for carpentry, construction and solar panel work prior to commencing with UPVC. While engaged at UPVC Mr Markey had no business premises of his own and did not charge GST (for which he was no longer registered). He has no other business of his own;[70]
(m)     during the time of Mr Markey’s engagement, one “outside sub-contractor” was engaged, Alistair, over three days, Mr Markey believed 9, 10 and 11 November 2020. Alistair could state his starting and finishing times (7:30am to 3:30pm) and was paid $55 per hour as a sub-contractor.[71]
[70] Markey statement, [35], [77]–[108].
[71] Markey statement, [122].
The material attached to Mr Markey’s Application to Admit Late Documents (AALD) dated 28 September 2021 includes his email to ‘upvcwindowsolutions’ dated 3 August 2020, prior to his commencement (in whatever capacity) with UPVC. It contains the following:
“Since our last contact, I have finished my apprenticeship and am now a licenced carpenter. I also have a high risk licence for driving forklift trucks.
I caught up with Julie on Saturday night at David Brasted’s birthday party and she said you’d had a employee resign from working on the floor.
I am extremely interested in seeking employment in your window and door joinery in Somersby. I’m available for full-time, part-time, or casual employment as required by you.
I attended at your joinery this morning and met Adrian. I can return to see you in person when you return from Sydney today, if that suited you. I’m going for a run through Girrakool now and will have my mobile on me. If you’d like to see me today, please text my mobile on [redacted].
Attached below is my Resume.”[72]
[72] AALD 28/9/21, ‘H’.

The resume described Mr Markey’s “objective” as a “licenced carpenter with joinery experience, I am seeking a full-time position on the Central Coast that will utilise my skills and experience.” It referred to his most recent experience as a “Contracted/Self Employed Carpenter 2010–2020”, described as “Construction work including carpentry commissions, joinery, plastering, painting and solar panel installation in Central Coast and Sydney regions”.
Mr Markey’s statement dated 28 September 2021[73] stated that he worked in accordance with Mr Clark’s direction, he could not leave work early or arrive late without permission. It included a screen shot of messages between Mr Markey and Mr Clark when Mr Markey sought permission to arrive late for work as he was having a skin cancer check.[74]
[73] AALD 28/9/21, Mr Markey’s statement 28/9/21, (Markey Statement 2), [1]–[2].
[74] Markey Statement 2, [3].
Mr Markey referred to Mr Clark’s statement where it referred to a LinkedIn page and an advertisement. He stated the LinkedIn page was set up by his ex-wife in “maybe 2013 or so” and he had not used it since. He referred to an advertisement mentioned in Mr Clark’s material. Mr Markey stated that did not know the advertisement existed, it may have been placed by his ex-wife. Mr Markey stated he did not receive any phone calls or do any work from any advertisement during the time he worked at UPVC.
Mr Markey’s second statement had attachments which included a photograph of eight T-shirts with the logo “UPVC Window Solutions” on the left breast. Mr Markey identified these as “workshirts supplied to me by [Mr Clark]” and said “[t]hey are not rags”.[75]
[75] Markey Statement 2, [4], ‘B’.
Mr Markey, in his second statement, took issue with various matters in Mr Clark’s statement dated 6 July 2021. He denied the following:
(a)    that Mr Clark said “I do not have any current employees and any work would be contract for jobs and you would need to give me prices on jobs completed”;
(b)    that Mr Clark said “You will need sickness and accident policy”;
(c)    that Mr Clark said “You will need to invoice me for the work I asked you to do. You will get paid on a completed job basis. Is that OK?”;
(d)    that he submitted invoices on an hourly rate because that was how he decided to run his business. Mr Markey stated the rate of $25.00 was proposed by Mr Clark and he agreed to it;
(e)    that he drove his own vehicle to job sites. He stated there were only two occasions when he did so, this being to Umina Beach, when the company vehicle had already left and he was instructed to drive direct to the worksite. He stated that otherwise he travelled to worksites in the company vehicle;
(f)    that he could chose his own hours and workload. He stated he did not decline any job because he was not allowed to do so, and
(g)    that Mr Clark said “You can do what you want” when he asked for time off for ski trips. Mr Markey stated that, if he requested time off and this was approved, Mr Clark said words to the effect “yes you can have the time off”. Mr Markey stated that, when he asked to take time off on 6 October 2020 so he could remain in Perisher skiing for an additional day, Mr Clark refused saying “… you have to be back. We have jobs to finish.”

Mr Clark’s statements

Mr Clark provided a statement dated 18 January 2021 (executed 7 February 2021) made to an investigator engaged by the Nominal Insurer.[76] He described Mr Markey as having “commenced employment in the middle of August 2020 as a sub-contractor assisting me in the manufacture of and installation of windows and doors of different shapes and sizes”. He said Mr Markey “provided me with his ABN number” and “informed me he held a public liability insurance policy”. Mr Markey said he did not have a sickness and accident policy, Mr Clark said he “suggested he should look into getting one”. Mr Clark said he “did not follow up on that”. Mr Clark said “I did expect him to get a policy and it was of paramount importance that he does so.”[77]
[76] Miscellaneous Application, pp 37–46 (Clark statement).
[77] Clark statement, [10]–[12].
Mr Clark stated:
“Some days before work he [Mr Markey] would go for a run at about 5.30am and he would be here at the factory before me. I do not have set hours either. I chose when I come and go and it was the same with Ross, he decided when he was going to arrive and leave each day. Some days he was here later than me and sometimes he left before me.”[78]
[78] Clark statement, [14].
Mr Clark referred to Mr Markey’s request for a morning tea break, saying his (Mr Clark’s) response was “if he needed a break to take one”. Mr Clark said that if Mr Markey worked more than eight hours in a day he was paid at his normal hourly rate, not at overtime rates. He said that Mr Markey was paid by EFT into his nominated bank account when he submitted an invoice. Sometimes this was weekly, sometimes it may be after three weeks, there was “no set pattern”. Mr Clark said Mr Markey informed him that he, Mr Markey, “struggled with recording information”. Mr Clark said he gave Mr Markey “a copy of the old time sheet” that Mr Markey then used to record his hours.[79]
[79] Clark statement, [15]–[18].
Mr Clark stated:
“There was no signed contract of employment.
Ross [Markey] was a sub-contractor and not entitled to annual leave, sick leave or paid public holidays.
He was paid a gross amount and was to pay his own tax and superannuation.”[80]
[80] Clark statement, [19]–[21].
Mr Clark said Mr Markey:
“… originally asked for $26.70 gross per hour. In the first couple of days, it became obvious that he was not as experienced as he had told me so for the first few weeks I paid him $20.00 gross per hour because he was a bit slow and then as I started to work alongside him, and he got better I thought that $20.00 was a bit low and I increased it to $25.00 gross per hour as his work performance improved.”[81]
[81] Clark statement, [22].
Mr Clark said that Mr Markey’s “invoice contained his ABN, but he did not charge me GST”. Mr Clark said, “I do not have a written job description.” He said that Mr Markey’s “rate of pay was an agreement between us”. He said that “Ross [Markey] had a few hand tools of his own that he brought in. I believe he was also using them on jobs he was doing for other people.” He said that Mr Markey “worked under my supervision” and there were “instances he worked unsupervised”.[82]
[82] Clark statement, [23]–[31].
Mr Clark’s statement confirmed that, directly after the incident in which Mr Markey was injured, Mr Markey said “it had bent his right thumb back and hit him on the shoulder” and that “it hit me on the neck”. Mr Clark stated that Mr Markey “strapped his thumb up and then carried on with his work until he finished that afternoon”.[83]
[83] Clark statement, [33]–[34].
Mr Clark described Mr Markey as having misled him when he applied for the job. He said Mr Markey described himself as a carpenter but had limited knowledge. He said the work he gave Mr Markey was “nothing too complicated”.[84] He said Mr Markey carried out his duties at the factory as there was nowhere else to take the product to put it together. He worked either at the Somersby factory or on site. Mr Markey was not subject to any disciplinary code. He did not have to wear a uniform displaying the business logo. There were old T-shirts in a rag bin at the factory. Mr Markey “came to work looking like a tramp.” He asked if he could use some of the T-shirts, so he wore these sometimes, but it was his choice.[85]
[84] Clark statement, [40]–[41].
[85] Clark statement, [44]–[48].
Mr Clark said that Mr Markey never approached him about whether he could subcontract the work he was given.[86] He said Mr Markey was not sufficiently experienced to quote for the jobs he was given, so Mr Clark “ended up paying him on an hourly rate”. Mr Clark said that if Mr Markey messed up a job Mr Markey would fix it in his own time, not Mr Clark’s. Mr Markey was answerable to Mr Clark for the quality of his work.[87] No other staff reported to Mr Markey.[88]
[86] Clark statement, [51].
[87] Clark statement, [52]–[53], [55]–[56].
[88] Clark statement, [60].
Mr Clark said that Mr Markey did not require permission to go on the skiing weekends that were booked around the time he commenced. He said it was Mr Markey’s choice, he had “free reign to do what he wanted when he wanted”.[89]
[89] Clark statement, [58].
Mr Clark stated there were “about six other people” Mr Markey worked for, while working for him. He nominated Mr Markey’s brother-in-law who did solar installations, and Alistair Cook, whose house Mr Markey was minding when he was taken to hospital. He referred to Alistair Cook’s sister and a man called Alan who Mr Markey was building a shed for in the bush. He said, in this statement, that he would send further information.[90] Mr Clark said Mr Markey had been advertising as a handyman and a massage person, although he did not know how up-to-date this internet advertising was.
[90] Clark statement, [61].
Mr Clark referred to Alistair as a contractor on his books, who charged $55 to $60 per hour.
UPVC relies also on a second statement of Mr Clark dated 6 July 2021.[91] Mr Clark stated that his wife was the other director of UPVC but she did not work for the company. He stated that his second statement was prepared following notification from the Nominal Insurer that it determined UPVC to be liable for payments made to Mr Markey following his injury. He stated that much of the manufacturing process and the fitting of windows on site involved carpentry skills.[92]
[91] Miscellaneous Application, pp 2–9 (Clark Statement 2).
[92] Clark Statement 2, [1]–[2], [6]–[8].
Mr Clark said that in early August 2020 his wife informed him that she had met Mr Markey at a party and he “identified himself as a qualified carpenter and handyman who was looking for contracting work in the local area”. Mr Clark said that on 3 August 2020, while he was in Sydney away from the factory, Mr Markey telephoned him and the following was said:
“RM: I have been around your factory, but you were not there. I am a qualified carpenter and handy man working locally and I popped around to see if you had any work available.
RC: Yeah I am in Sydney today. Come around tomorrow and we can discuss things. My wife mentioned that she had spoken to you at the party on the weekend.”
Mr Clark stated that Mr Markey arrived at the factory later on the same afternoon, where there was a conversation to the following effect:
“RM: I am a qualified carpenter. I am doing some jobs around the local area and looking for some contract work now that I’m a qualified carpenter.
RC: I may need some help as I have some containers due to be delivered up until Christmas which would tie me up so I may need someone with some of your skills. I do not have any current employees and any work would be contract for jobs and you would need to give me prices on jobs completed. What are your details?
RM: I have an ABN and public liability insurance in place.
RC: Are you trading as a company?
RM: No but I am a sole trader.
RC: You will need sickness and accident policy.
RM: I get that.
RC: I might have some jobs about on site in terms of fitting some window frames when they are manufactured and some work around the factory which your skills could help with. I presume you can do that?
RM: Yeah, no problem.
RC: You will need to invoice me for the work that I ask you to do. You will get paid on completed job basis. Is that OK?
RM: Ok.”[93]
[93] Clark Statement 2, [10]–[11].
Mr Clark said that during this conversation Mr Markey showed him his ABN. He said Mr Markey sent “a copy of his public liability insurance”. He said he did not follow up on the sickness and accident policy although he regarded it as “very important that he get one”. He said the reason he decided to contract with Mr Markey was that he needed carpentry and handyman services “for a short period such as installation of window frames and some manufacturing of them”. Such services were provided from 10 August 2020 to 30 November 2020 (the date of accident) (Mr Clark referred to this period as ‘the Time’). Mr Clark said that Mr Markey did not suggest he regarded himself as an employee of UPVC.[94]
[94] Clark Statement 2, [12]–[16].
Mr Clark said that it was agreed at the commencement of ‘the Time’ that Mr Markey would be paid on the basis of jobs completed, for which he would invoice. Mr Clark said there were problems with invoicing, Mr Markey’s invoices were received at intervals of one to three weeks. He gave Mr Markey “the old time sheet” to help him get organised. The invoices were then submitted (and paid by UPVC) on an hourly basis, as “that was how he decided to organise his business”. Mr Clark said that he recalled a conversation about Goods and Services Tax in which Mr Markey said: “I do not currently charge GST as I am not registered at the moment”. Mr Clark said that UPVC did not deduct income taxation from its payments to Mr Markey.[95]
[95] Clark Statement 2, [17]–[22].
Mr Clark said that Mr Markey provided “some of his own tools and equipment”, which he speculated were used on other jobs that Mr Markey did as a contractor. Mr Clark said that when working on site Mr Markey “would use his own tools and equipment. These were not provided by UPVC in any organised fashion”. Mr Clark said that he provided materials. He said that Mr Markey drove his own vehicle to and from the factory and jobs, he was not reimbursed for travel. Occasionally Mr Markey was provided with a vehicle if things were being transported that would not fit in Mr Markey’s vehicle. Mr Clark described the factory as “a convenience to him [Mr Markey] to work from there. He could have worked elsewhere if he wanted.”[96]
[96] Clark Statement 2, [23]–[27].
Mr Clark said that Mr Markey “was able to choose his own hours and workload”. When Mr Clark assigned jobs Mr Markey “would decide if he wanted to do the work”. Mr Clark said that Mr Markey wanted to run in the morning and not start early. “I was fine with that. I did not set hours for him.” When Mr Markey said that he wanted time off for ski trips Mr Clark said “You can do what you want.” Mr Clark said he did not “directly supervise his day to day work”. If there was an issue with Mr Markey’s work Mr Markey would “fix it up in his own time”. Mr Clark said that “UPVC had no disciplinary control over Mr Markey”. He did not seek to make Mr Markey “fix up his appearance”. Mr Clark said that Mr Markey, in the “fundamental core elements of his job”, was “self directed”. Mr Clark said that he provided no formal training.[97]
[97] Clark Statement 2, [28]–[33], [41].
Mr Clark said that he kept a “pile of old cotton items” in the factory that he would rip and use as rags. He said Mr Markey decided to take some of these old shirts and “would occasionally wear them”. He said Mr Markey “just wore what he liked from the rag pile”. Mr Markey was not required to wear “provided uniforms”.[98]
[98] Clark Statement 2, [34]–[36].
Mr Clark said there were “no restraints” on Mr Markey performing “alternative or outside work”. He said Mr Markey could have delegated or sub-contracted his work to others, Mr Clark said he put no restrictions on this. “Mr Markey was not required to provide exclusive or personal service by contract or otherwise.” He said that, during the Time, UPVC did not “warrant to anyone that Mr Markey was an employee. Mr Markey was never put on the UPVC website.[99]
[99] Clark Statement 2, [37]–[40].
Mr Clark’s second statement asserted that, during the Time, Mr Markey would “perform work for others or would engage in social activities”. There are generalised assertions, not restricted to any specific place or period during the Time, that Mr Markey provided services in relation to loading and unloading containers, performed carpentry and roofing services, did remedial work, and performed painting and plastering, together with waterproofing and renovation services. It is stated that he “[a]dvertised his own business” and “went skiing twice”. It is asserted that Mr Markey “continued to market himself as a local handyman”. Mr Clark stated that Mr Markey informed him that he was “advertising for handyman services”. Mr Clark stated:
“It is my belief on the basis of the representations made to me by Mr Markey, knowledge of work performed in the local area and my searches that Mr Markey regularly carried on a business providing similar services to those he provided to me namely carpentry and general handyman services.”[100]
[100] Clark Statement 2, [42]–[45].

Mr Romano’s statement

Statements from Adrian Romano dated 27 January 2021 and 17 November 2021 were lodged in Mr Markey’s case.[101] The earlier of these was recorded by an investigator engaged by the Nominal Insurer and is described as a “Conversation log”. Mr Romano said he was employed by UPVC for a few years up to 27 September 2020. Mr Romano said he was “employed as a contractor”. He said he had “no work experience before starting ‘that job’” and Mr Clark got him “to set [himself] up with an ABN”. He said the boss supplied shirts “with the logo on it”. Mr Romano had keys to the factory and drove the company van. He put in a weekly time sheet, putting in an invoice each week that was paid. He did not charge GST and was paid a flat rate of $25 per hour. Mr Romano said he did not have an ABN for the first 12 to 18 months, UPVC was “just putting money into my bank account”. Then Mr Clark “got me to get the ABN and he started to pay me as a contractor”.
[101] AALD 10/2/22, pp 1–6.
Mr Romano said that Mr Markey “did not have any work experience in carpentry”, he was “still learning the tools”. He stated that he “was teaching Ross [Markey] what to do as we were going along”. He said that he and Mr Markey “were both working a minimum of 40 hours a week”. When Mr Romano was asked about another person who worked there, Mr Newsome, he said:
“I don’t know that Rob [Clark] had any permanent employees, we were all contractors, that included myself, Ross [Markey] and Matt [Newsome] and a couple of other guys that worked there with me.”
When asked about Alister [sic, Alistair] Mr Romano said Alistair might have done two days a month as a contractor, “he was getting a higher hourly rate than we were”. Mr Romano was asked whether Mr Markey ever took “time off work to go and do other jobs”. He responded that Mr Markey did some small jobs with a mate unloading a shipping container, “usually about 5.30–6am before he came into work”. He also mentioned that Mr Markey “used to do jobs installing solar panels, but Rob [Clark] did not want to give him the time off to do that sort of stuff, so he stopped doing that while he was working with Rob”.
In the second statement dated 17 November 2021 Mr Romano adopted the earlier “Conversation log”. Mr Romano stated that he gave Mr Markey a template of an electronic time sheet. Mr Romano said he had severe doubts that Mr Markey “would be capable of quoting on a ‘per job’ basis”. Mr Romano said that he was “paid on an hourly rate” and he understood that Mr Markey was as well. Mr Romano said his set hours were “8.30 am start to 5 pm finish” and these “were also Ross Markey’s hours”. Mr Romano said that both he and Mr Markey “preferred to work earlier hours” but Mr Clark “would not allow it”. Mr Romano said that he, like Mr Markey, “wore company shirts with the logo on it”. He said that Mr Markey had “a very small assortment of hand tools”, otherwise “all the tools and equipment were provided by UPVC”. Mr Romano said that, other than on one occasion, Mr Markey did not use his personal vehicle for work purposes.[102]

GROUND NO. 1

The Member erred, as a matter of law and ultimately fact, in finding that Mr Markey was a worker within the meaning of s 4 of the 1998 Act: Reasons [121]–[151] by misapplying the correct test to determine worker status and thus taking into account irrelevant matters. The Member should have concluded as a matter of law and fact that Mr Markey was not a worker.

[102] AALD 10/2/22, pp 1–6.

UPVC’s submissions

UPVC describes the Member’s approach as being one where, as the contract was oral, the Member considered characterisation of the relationship on the basis of the indicia of employment was relevant. This was done by reference to the decision of Dicker SC DCJ in Moffett. The Member concluded that Mr Markey was a worker. UPVC submits this was erroneous, having regard to Personnel Contracting and Jamsek.[103]
[103] UPVC submissions, [22]–[24].
UPVC accepts that the contract was not written but oral, so the circumstances “do not neatly align with the facts” in Personnel Contracting and Jamsek. It submits the Member’s task was the same whether the contract was written or oral, to “determine the rights and duties and ‘construe and characterise the contract made between the parties at the time that it was entered into’” (emphasis in original). UPVC submits this did not involve the application of a multifactorial test. It involved “an objective inquiry the purpose of which is to ascertain the terms the parties can be taken to have agreed.” It submits a multifactorial test involves “considerations of post-employment conduct and the parties’ subjective actions and interpretations which is something the High Court criticised at length in Personnel [Contracting].” It submits the parties’ contract, whether oral or in writing, determines the question of employment status.[104]
[104] UPVC submissions, [25]–[26].
This is submitted to be consistent with Personnel Contracting, Jamsek and WorkPac Pty Ltd v Rossato.[105] UPVC quotes the following passage[106] from Rossato:
“A court can determine the character of a legal relationship between the parties only by reference to the legal rights and obligations which constitute that relationship. The search for the existence or otherwise of a ‘firm advance commitment’ must be for enforceable terms, and not unenforceable expectations or understandings that might be said to reflect the manner in which the parties performed their agreement. To the extent that Bromberg J expressed support for the notion that the characterisation exercise should have regard to the entirety of the employment relationship, his Honour erred.”[107] (excluding footnotes)
[105] [2021] HCA 23; 95 ALJR 681 (Rossato).
[106] UPVC submissions, [27].
[107] Rossato, [57].
UPVC submits Mr Markey did not argue that the original contract was “varied by conduct or was a sham”. The onus was on Mr Markey to establish his status. UPVC submits the Commission was “limited by the evidence before it which established the contractual relationship which existed at the time it was formed”. It quotes from the reasons of Gordon J in Personnel Contracting at [190] to [191]. UPVC submits the Member erred in applying Moffett (a case dealing with vicarious liability). It refers to the reasons of Gordon J in Personnel Contracting at [191], where her Honour said “there is an important distinction between whether there is an employer/employee relationship and whether what was done was done in ‘the course of [that] employment’”. UPVC describes this view as being echoed in the reasons of the plurality, and of Gordon and Steward JJ, in Jamsek.[108]
[108] UPVC submissions, [30]–[32].
UPVC submits that the “evidence about the formation of the contract and its terms were reasonably clear and favoured a conclusion that the contract which was formed was one of contract [sic] as opposed to employment”. It submits Mr Clark’s evidence was “clear as to the terms upon which the engagement was to be offered” and “was not, in decisive areas, directly contradicted by Mr Markey”. It submits Mr Markey did not contest various statements attributed to him by Mr Clark. These included that Mr Markey was “looking for contract work”, that he had “an ABN and public liability insurance in place”, that he was a “sole trader”, and that he was “a local contractor who provided carpentry and handyman services”. UPVC submits Mr Markey continued to perform contract work during the time it allegedly employed him.[109]
[109] UPVC submissions, [34]–[39].
UPVC submits the “key evidence” of Mr Clark was uncontested. It refers to the Member’s preference for Mr Markey’s evidence, particularly where it had independent support. It submits this was erroneous as there were not “substantive reasons” as to how this view was arrived at in the absence of cross-examination, and the evidence of Mr Markey was generally in issue. It submits “a party denying a claim does not have a positive burden to adduce evidence to contradict the opposing party’s evidence, either directly or by way of inference” (citing Nguyen v Tran[110]). UPVC submits “the only conclusion available on the evidence was consistent with the evidence of the appellant below that the contract and relationship formed was one of contract”.[111]
[110] [2018] NSWCA 215, [55]–[58].
[111] UPVC submissions, [40]–[42].

Nominal Insurer’s submissions

The Nominal Insurer submits the Member referred to the correct test on ‘worker’ in the reasons at [128] and following. She reviewed each of the decisions cited by UPVC. The cases on which UPVC relied involved written contracts whereas the current matter “concerned a completely oral contract”. The Nominal Insurer submits the Member’s reference in the reasons at [133], rather than being to “[128] above”, should be to [126] and/or the second paragraph in [127].[112]
[112] Nominal Insurer submissions, Ground 1, [1]–[2].
The Nominal Insurer refers to paragraphs [25] to [29] of UPVC’s submissions. The Nominal Insurer submits the Member set out the quoted case law and then, in the reasons at [134] and following, applied it to the evidence, which she had reviewed in the reasons at [12] to [46]. The Nominal Insurer submits the Member made factual findings which were all supported by evidence, to which the Member referred. It submits the Member’s analysis was consistent with the extracted quote from the reasons of Gordon J at [190] of Personnel Contracting, which appears in UPVC’s submissions at [30].[113]
[113] Nominal Insurer submissions, Ground 1, [3].
The Nominal Insurer refers to the criticism of the Member for relying on the decision in Moffett. It submits the Member was acutely aware that this decision was given in the context of the issue of vicarious liability. The Member specifically referred to this in the reasons at [139] but described his Honour’s summary as “helpful in setting out the various matters for consideration”. There is no submission that any of those matters were inappropriate.[114]
[114] Nominal Insurer submissions, Ground 1, [4].
The Nominal Insurer refers to UPVC’s submissions[115] that place reliance on Mr Clark’s second statement dated 6 July 2021. UPVC’s submissions set out Mr Clark’s recollection of his conversation with Mr Markey, and serial matters concerning Mr Markey’s time working with him. UPVC submits this statement should have been preferred by the Member in arriving at her determination. The Member was clearly aware of the statement, she referred to it in her recital of the evidence in her reasons at [12] to [19]. It post-dated receipt of the s 145 notice. UPVC submits Mr Clark’s statement dated 6 July 2021 was not directly in conflict with Mr Markey’s evidence. The Nominal Insurer refers to UPVC’s submissions, to Mr Markey’s evidence (set out in the reasons at [24] to [38]) and to the evidence of other witnesses (set out in the reasons at [39] to [46]). The Nominal Insurer submits the reasons at [134] to [136] identified conflict in the evidence. The Nominal Insurer submits the conflict was resolved in the Member’s reasons at [140] to [151]. The Nominal Insurer submits the analysis does not demonstrate error of fact or law.[116]
[115] UPVC submissions, [35]–[43].
[116] Nominal Insurer submissions, Ground 1, [5].

Mr Markey’s submissions

Mr Markey refers to UPVC’s approach. This is said to be that the multifactorial test is no longer applicable, it is necessary “to determine the terms of the contract which existed between the parties at the time”. Mr Markey says the approach of the Member, according to UPVC, was to conclude that where the employment contract was oral this permitted the continued application of the multifactorial test. Mr Markey submits this misdescribed the Member’s approach:
“The Member did not accept that an oral contract in isolation warranted or permitted the application of the multifactorial test. The Member found that the evidence concerning the formation and terms of the contract was confusing and unclear …”.[117]
[117] Markey submissions, [7.1]–[7.2].
Mr Markey quotes part of the paragraph in the reasons at [135] in support of the above proposition. That paragraph in its entirety reads:
“I also do not accept Mr Neilson’s submission that any conduct after the first conversation was irrelevant. The statements about the primacy of the contract in the recent High Court cases were made in the context of a relationship which was founded in a written contract. Here the contract was entirely oral. Mr Markey and Mr Clark provided evidence as to what occurred at the first meeting and their statements differ dramatically as to what was said. It is not possible to form a clear picture of the conversation which took place without accepting the evidence of one in preference to the other.”
Mr Markey submits “the accounts of the first meeting provided by Mr Clarke and [Mr Markey] differ greatly … [t]his highlights the significant difficulty in relying on the oral contract and justifies the approach adopted by the Member”. It is submitted that the evidence of Mr Markey “traverses the evidence of Mr Clarke in fundamental areas concerning the formation of the contract”. Mr Markey submits the Member “made no error in the application of the legal test nor the application of the facts to same.”[118]
[118] Markey submissions, [7.4]–[7.6].

UPVC’s submissions in reply

UPVC says it accepts it was necessary that the Commission “determine the rights and duties and construe and characterise the contract made between the parties at the time that it was entered into”. It submits that, in applying the multifactorial test, the Member considered “post formation conduct to determine the substance or character of the relationship”. It submits Mr Markey did not directly challenge the “key evidence” about formation of the contract.[119]
[119] UPVC submissions in reply, [5].
UPVC refers to the Member’s preference for the evidence of Mr Markey to that of Mr Clark, particularly where there was independent support. It submits the Member gave no reasons for this beyond Mr Romano’s evidence of factory practices (which did not go to formation of the contract) and some contemporaneous text messages and photographs of Mr Markey (which put his subjective position). It repeats its submission that it is unclear how the preference was arrived at in the absence of cross-examination. Mr Markey expressed the view that “all persons engaged, including Mr Markey were contractors, or at least he did not know”.[120]
[120] UPVC submissions in reply, [6].
UPVC quotes from a passage of Personnel Contracting at [187]. It submits there was no evidence to support a submission by the Nominal Insurer that the rate offered to Mr Markey was “below the Award”.

Consideration

The Member’s credit finding

UPVC raises an issue, which should be dealt with at the outset, going to the status of the Member’s credit finding in the absence of cross-examination (see [77] above). UPVC refers to Mr Markey’s evidence being in issue and to the absence of substantive reasons for the credit finding. It refers to Mr Clark’s “key evidence” being uncontested. It submits “the only conclusion available on the evidence” was acceptance of Mr Clark’s evidence going to formation of the contract.
It was not only Mr Markey’s credit that was in issue. The Member referred to the first meeting between Mr Markey and Mr Clark, noting the contract was entirely oral and that the evidence of these people differed dramatically as to what was said. The Member noted it was not possible to form a clear picture of the conversation “without accepting the evidence of one in preference to the other”. The Member correctly noted that, in Mr Markey’s statement dated 28 September 2021, he responded to and disagreed with much of Mr Clark’s evidence.[121]
[121] Reasons, [134]–[135].
UPVC refers to the absence of “substantive reasons”. The meaning of this phrase in the context is not clear. The Member referred to the fact that “much of what Mr Markey said” was supported by “the evidence of Mr Romano and some by contemporaneous text messages and photographs”. In those circumstances the Member preferred the evidence of Mr Markey to that of Mr Clark, “particularly where there is independent support”. The Member identified the corroboration of Mr Markey’s evidence to which she referred – the evidence of Mr Romano, contemporaneous text messages and photographs. She referred to Mr Markey’s statement dated 28 September 2021.
There is no right to cross-examine in the Commission: Aluminium Louvres & Ceilings Pty Ltd v Zheng.[122] In that decision Bryson JA said:
“The requirements of the rules for information to be lodged in advance and for statements revealing the cases of parties to be made in advance, taken with the width of the sources of information on which the Commission is authorised to act and the ways in which it is authorised to proceed, mean that assumptions upon which common law trials are conducted should not be readily carried over when testing contentions that a hearing before an Arbitrator [now a ‘Member’] was not conducted in a fair way.”[123]
[122] [2006] NSWCA 34 (Zheng)
[123] Zheng, [25].
In New South Wales Police Force v Winter Campbell JA (Giles JA and Handley AJA agreeing), after reviewing Zheng and other authorities, dealing with procedural fairness and cross-examination, said:
“The consequence of these decisions is that the circumstances in which Browne v Dunn will require matter to be put to a witness in cross-examination will depend upon the nature of the pre-trial preparation there has been, and whether that pre-trial preparation has been sufficient to give notice to a witness of the submission ultimately intended to be put to the court. An aspect of this is that Browne v Dunn will require more extensive cross-examination in a case where all the evidence is given orally, than is necessary in a case where the substance of the evidence proposed to be given by each side is notified in advance by affidavit or statement.”[124]
[124] [2011] NSWCA 330, [81].
In the current matter, statements of Mr Markey, Mr Romano and Mr Clark were exchanged prior to the hearing.
Mr Markey’s statements are summarised at [33] to [45] above. They contradict various aspects of Mr Clark’s evidence. Mr Markey’s email to UPVC dated 3 August 2020 (before he commenced) referred to him hearing that Mr Clark had “an employee resign” and to him being “extremely interested in seeking employment”. In his resume he described his objective as “seeking a full-time position on the Central Coast”. He went on to describe Mr Clark as controlling his hours of work, which was corroborated by a screen shot of him seeking permission to be late for work to have a skin cancer check. The photographs of the clothing bearing UPVC’s logo (the clothing did not appear to be rag like) and screen shots from Mr Markey’s telephone were before the Commission, as was Mr Romano’s statement. The screen shot from Mr Markey’s telephone, of a message to his son at 4.29pm on 3 August 2020, said “you are currently receiving a text from a full-time employed joiner. I start at 7.30am on Monday.” These were matters that on their face were inconsistent with parts of Mr Clark’s evidence (see [61] and [64] above by way of example). (Mr Markey’s descriptor of his employment status was of little relevance in determining whether he was a ‘worker’, as appears from passages from Personnel Contracting quoted below.)
Mr Romano’s statement is summarised at [68] to [71] above. It is generally supportive of Mr Markey’s evidence. Mr Markey did not have work experience in carpentry. Mr Romano doubted that Mr Markey would be capable of quoting on a ‘per job’ basis. They both put in timesheets charging a flat hourly rate. He and Mr Markey both worked set hours, a minimum of 40 hours per week. Mr Markey gave away a job installing solar panels as Mr Clark did not want him to do “that sort of stuff”. Mr Romano and Mr Markey were both paid on an hourly rate. Most tools and equipment were supplied by UPVC and Mr Markey did not use his personal vehicle for work purposes. The statements of Messrs Clark, Markey, and Romano were summarised at [12] to [43] of the Member’s reasons.
In a frequently cited passage from State Rail Authority of NSW v Earthline Constructions Pty Ltd Kirby J said:
“There is a growing understanding, both by trial judges and appellate courts, of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom. Scepticism about the supposed judicial capacity in deciding credibility from the appearance and demeanour of a witness is not new. In Société d’ Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The Palitana), Atkin LJ remarked that ‘an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour’.”[125]
[125] [1999] HCA 3; 73 ALJR 306; 160 ALR 588, [88]. See also Fox v Percy [2003] HCA 22; 214 CLR 118 (Fox v Percy), [30]–[31].
It is necessary that the Member’s reasons be read as a whole.[126] The adequacy of her reasons needs to be assessed in the light of the corroborative evidence to which she referred. In Pollard v RRR Corporation Pty Ltd McColl JA said that “where credit issues are involved it is necessary to explain why one witness’s evidence is preferred to another’s.”[127] The Member’s reasons for making the credit finding were briefly expressed but were adequate to explain why she preferred the evidence of Mr Markey to that of Mr Clark. UPVC does not challenge the finding by reference to the principles in Fox v Percy. The Member’s credit finding was open to her and UPVC has not demonstrated error within the meaning of s 352(5) of the 1998 Act in this regard.
[126] Beale v Government Insurance of NSW (1997) 48 NSWLR 430, 444.
[127] [2009] NSWCA 110, [65].

The recent High Court decisions

I note that in Jamsek (in which the decision of the High Court was delivered on the same date as that in Personnel Contracting) the plurality there said:
“In the present case, as in CFMMEU v Personnel Contracting, there was no suggestion that the contract between the parties was a sham or had been varied or otherwise displaced by conduct of the parties. There was no claim by the respondents to set aside the contract either under statute or pursuant to equitable doctrines such as those relating to unconscionable conduct.”[128]
[128] Jamsek, [8].
I note that both Personnel Contracting and Jamsek were cases in which there were comprehensive written contracts. In the current matter, as in Stevens v Brodribb Sawmilling Company Pty Ltd,[129] there was not a written contract. This was a factor that the plurality in Personnel Contracting, in the course of its discussion of Stevens, described as being of importance.[130]
[129] [1986] HCA 1; 160 CLR 16 (Stevens).
[130] Personnel Contracting, [56].
In Personnel Contracting the plurality said:
“A contract of employment may be partly oral and partly in writing, or there may be cases where subsequent agreement or conduct effects a variation to the terms of the original contract or gives rise to an estoppel or waiver. In such cases, it may be that the imposition by a putative employer of its work practices upon the putative employee manifests the employer’s contractual right of control over the work situation; or a putative employee’s acceptance of the exercise of power may show that the putative employer has been ceded the right to impose such practices.
While there may be cases where the rights and duties of the parties are not found exclusively within a written contract, this was not such a case. In cases such as the present, where the terms of the parties’ relationship are comprehensively committed to a written contract, the validity of which is not challenged as a sham nor the terms of which otherwise varied, waived or the subject of an estoppel, there is no reason why the legal rights and obligations so established should not be decisive of the character of the relationship.[131] (excluding footnotes)
[131] Personnel Contracting, [42]–[43].

In Pasqua v Morelli Constructions Pty Ltd[203] Roche DP dealt with the requirements of cl 2 of Sch 1. The Deputy President referred to Cam as a case “where the applicant had regularly carried on the business of a carrier up until six months prior to his accident when he ceased his regular carrying business and operated his truck solely for the purpose of the respondent’s business”.[204] In the same case the Deputy President said:
“I am comfortably satisfied that, at the time of his accident, Mr Pasqua was not regularly carrying on a trade or business. It follows that the work he was performing at the time of his injury was not incidental to a trade or business regularly carried on.”[205]
And:
“Morelli argues that Mr Pasqua is asking the Commission to find that unless he was engaged contemporaneously with another principal at the time he was providing services to Morelli, he cannot be said to be engaged in a business at that time. I do not accept that submission. As noted above, it is necessary to consider whether the contractor is in business for himself or herself and whether a trade or business is carried on systematically and regularly.”[206]
[203] [2009] NSWWCCPD 153; 9 DDCR 261 (Pasqua).
[204] Pasqua, [51].
[205] Pasqua, [53].
[206] Pasqua, [58].
In Amalgamated Pest Control v Chaaya[207] Roche DP dealt with the meaning of ‘trade or business’ in the context of cl 2 of Sch 1. After considering the decision of the High Court in Cooney v Ku-ring-gai Corp,[208] which dealt with the meaning of the words ‘trade’ and ‘business’, the Deputy President said:
“In the text Workers Compensation (New South Wales), second edition, C P Mills cites Cooney as authority that the phrase ‘trade or business’ involves the ‘practice of systematic activity or work for reward or with a view to gain’ (page 157). I accept that this is the appropriate interpretation of the phrase in cl 2 of Sch 1. This interpretation is also consistent with the decision of Coleman v Grafton Greyhound Racing Club (1955) 55 SR (NSW) 214 where it was held that the words are not apt to cover hobbies or pastimes engaged in by one or more people.”[209]
[207] [2015] NSWWCCPD 53 (Chaaya).
[208] [1963] HCA 47; 114 CLR 582.
[209] Chaaya, [190].
I accept and adopt the passages from Pasqua and Chaaya quoted above. It was open to the Member to make the factual finding which she did on this issue. I note the Member’s finding on this issue was made in the alternative, in the event that she had erred in her primary finding on the ‘worker’ issue.
I agree with the Member’s conclusion that Mr Markey “did not regularly carry on a trade or business” at the relevant time. The Member’s decision on this point was a finding of fact (see [171] above). Challenge to such a finding is subject to s 352(5) of the 1998 Act and the principles referred to at [27] to [29], and [159], above. UPVC has failed, in Ground No. 2, to make out relevant error. Ground No. 2 fails.

GROUND NO. 3

The Member erred, as a matter of law and fact, in her construction and application of s 9B of the 1987 Act: Reasons [183]–[194] by failing to properly consider and apply the correct test set by s 9B, the evidentiary onus established by s 9B and whether the evidence submitted was sufficient to discharge the onus of the worker. The Member ought to have concluded that s 9B operated to preclude payment of compensation with respect to the stroke injury (as found).

UPVC’s submissions

UPVC submits there was no medical evidence dealing specifically with the application of s 9B of the 1987 Act. It states that the Member relied on the decisions of Kim and State Transit Authority v El-Achi.[210] It submits that in those cases there was “some medical evidence about the risks being made significantly greater by the nature of the work being performed”. UPVC submits the Member “conflated the issue of the cause of the stroke [185 of Reasons] with the test in s 9B as to whether the nature of the employment gave rise to a significantly greater risk”. It submits the Member correctly concluded that Drs Walker and Williams did not consider the specific words of the section. It submits the Member found this evidence explained the chain of causation, but it was not relevant to the test under s 9B, an issue on which Mr Markey carried the onus.[211]
[210] [2015] NSWWCCPD 71 (El-Achi).
[211] UPVC submissions, [64]–[70].
UPVC refers to its argument before the Member that “there was no lay evidence to support the contention that the nature of Mr Markey’s employment resulted in a significantly greater risk of suffering a stroke because the injury was a freak accident”. It submits the “evidence could not support a conclusion that there was a ‘significantly greater risk’ because there was little, if any direct, evidence to support such a conclusion”. It was a “freak accident” that led to the injury. The “evidence could not lead to a sound conclusion that it was an unsafe system of work ‘leading to a significantly greater risk’ on the day in question”.[212]
[212] UPVC submissions, [71]–[72].
UPVC states that, making submissions at first instance, it argued that Galea was wrongly decided, “having regard to the text and purpose of s 9B”. It describes UPVC’s submissions below as being “set out at [67]”. This appears to be a reference to the Member’s reasons at [87] to [88] where the Member summarised UPVC’s submissions on this topic.[213] UPVC submits the use of the term “the nature of the employment” in s 9B required consideration of “the class of employment as opposed to the employment engaged in by the worker”. It is submitted to mean “the inherent character” or “a kind of class usually distinguished by fundamental or essential characteristics”.
[213] UPVC submissions, [73].

Nominal Insurer’s submissions

The Nominal Insurer submits the Member dealt with this topic in her reasons at [168] to [182] (dealing with the requirements of s 9B), and at [183] to [194] (dealing with the application of the section and relevant case law to the facts). It identifies three arguments made by UPVC. The first is that the absence of medical evidence dealing with the issue was fatal. The second was that the evidence was insufficient to satisfy the requirements of s 9B. The third was that Galea was incorrectly decided. The Nominal Insurer submits each of these arguments was dealt with in the Member’s reasons at [183] to [194] in a way that does not demonstrate any error of fact or law.[214]
[214] Nominal Insurer submissions, Ground No. 3, [1]–[3].

Mr Markey’s submissions

Mr Markey repeats his submission that the appeal is subject to s 352(5) of the 1998 Act. He refers to UPVC’s submission that the Member conflated the causation issue with the test in s 9B. He submits that Drs Walker and Williams explained the causal connection and says (referring to the reasons at [184] to [185]) that the Member concluded there was no opinion to the contrary.[215]
[215] Markey submissions, [7.31]–[7.32].
Mr Markey refers to the reasons at [182], where Galea is quoted in a passage that identifies the relevant authorities. The passage identifies that medical evidence addressing s 9B is desirable but not essential, the test requires satisfaction on all of the evidence. It is submitted this was the path that the Member pursued, the finding in the reasons at [194] was available and was not inconsistent with any medical evidence. UPVC’s argument that specific medical evidence on the point was required was “not supported by authority”.[216]
[216] Markey submissions, [7.33].
Mr Markey refers to a complaint by UPVC that there was no “independent” evidence that “ordinarily” might be adduced. Mr Markey submits that the Member identified the system of work. Mr Markey submits the evidence of Mr Clark, Mr Romano and Mr Markey was consistent. It constituted direct evidence of the system, which involved “handling long pieces of plastic from the mezzanine level to the ground level”. The Member then engaged in an evaluation of the risk, consistent with the section.[217]
[217] Markey submissions, [7.35].
Mr Markey refers the reasons at [193] where the Member addressed UPVC’s argument that the injury involved a “one off” or “freak accident”. He submits the Member considered the system of work and evaluated the risk, consistent with the section. Her finding was supported by the evidence.[218]
[218] Markey submissions, [7.36].
Mr Markey refers to UPVC’s submission that the appropriate nature of the employment to be evaluated was that of a ‘carpenter’ “in general terms”, rather than the specific employment on the date of injury. Mr Markey submits the wording of s 9B militates against this submission, which is contrary to the decision in Galea.[219]
[219] Markey submissions, [7.37].

UPVC’s submissions in reply

UPVC states it is undisputed that s 9B applies. UPVC submits the Nominal Insurer (and Mr Markey) carry the onus of establishing that s 9B is satisfied. It submits the evidence relied on in this regard was that going to the work performed on the day of injury. UPVC paraphrases the section. It submits the evidence “needs to be provided by the claimant”, and also the Nominal Insurer “to the extent it seeks to enforce the s 145 notice”. It submits the evidence was insufficient to satisfy the section. The evidence needed to permit a “comparative assessment” – “basic evidence about how the work was performed on the day in question” was insufficient to discharge the onus.[220]
[220] UPVC submissions in reply, [17]–[19].
UPVC refers to the Member’s finding at [193] regarding the activity being performed and the risk of being struck. It submits this is insufficient to discharge the onus, there must be a “significantly greater risk” (emphasis in original). UPVC submits the Member’s conclusion that there was “a significant risk arising from the way the factory was set out and the kind of materials used by UPVC to produce its products” was not reasonably available, it was speculation. UPVC submits that s 9B “was introduced to set a higher hurdle … in circumstances of stroke injury”. It submits “in the context of s 9B and the liability which attaches to UPVC should the exemption be found to be met probative evidence is needed” and was not presented. It submits the test was not satisfied.[221]
[221] UPVC submissions in reply, [20].

Consideration

It is common ground that s 9B applies. The reference in UPVC’s submissions to “the liability which attaches to UPVC should the exemption be found to be met” was inappropriate. The liability provisions of the workers compensation legislation are not interpreted or applied differently depending on the financial or insurance situation of the employer. I accept that Mr Markey carried the onus of satisfying s 9B (see Galea at [111]), a proposition that no party disagreed with.
Section 9B is set out at [32] above. The Member’s reasons at [168] describe the factual scenario:
“Mr Markey suffered a blow to the side of his head on 30 November 2020. He suffered a stroke on 3 December 2020. The tenor of the medical evidence from Gosford Hospital, Dr O’Brien, Dr Walker and Dr Williams is that when he was hit by the long piece of plastic, he suffered an injury to his vertebral artery which resulted in a stroke.”
The Member considered that the evidence supported a finding that the stroke was a consequential condition resulting from the blow to the neck, which resulted in a vertebral artery dissection. She considered the words of s 9B(1) were sufficiently broad that it was “necessary to consider s 9B in respect of the consequential condition”. No party challenges this conclusion.
Section 9B(1) reads:
“No compensation is payable under this Act in respect of an injury that consists of, is caused by, results in or is associated with a heart attack injury or stroke injury unless the nature of the employment concerned gave rise to a significantly greater risk of the worker suffering the injury than had the worker not been employed in employment of that nature.” (emphasis added)
The section draws a distinction between the ‘injury’ in respect of which compensation is payable (injury within the meaning of s 4 of the 1987 Act) and a ‘heart attack injury’ or ‘stroke injury’ (which are terms defined in subcl (2) of the section). On the plain words of s 9B(1), the ‘injury’ in respect of which s 9B must be satisfied is that pursuant to s 4 of the 1987 Act, in respect of which compensation is otherwise payable. This is consistent with Galea at [111]. In the circumstances of the current case, that was the injury on 30 November 2020 when Mr Markey, whilst in the course of his employment, was struck by the 5.8 metre plastic door profile that whipped when it was being removed from packaging. In most instances the ‘stroke injury’ or ‘heart attack injury’ at issue will also be the injury pursuant to s 4. These will be cases where the s 4 injury “consists of” the ‘heart attack injury’ or ‘stroke injury’. There will be circumstances where this is not so. Section 9B has application in the current matter because the injury pursuant to s 4 of the 1987 Act “results in or is associated with” the ‘stroke injury’, having regard to the causation finding in the reasons at [168].[222] It follows that satisfaction of s 9B in the circumstances required Mr Markey to prove that the nature of the employment concerned gave rise to a significantly greater risk of Mr Markey suffering the s 4 injury which occurred on 30 November 2020. That was not a specifically medical issue.
[222] Reasons, [172].
UPVC’s submissions are critical of the Member’s finding in the absence of expert medical evidence dealing with the topic. The Member dealt with s 9B, in the circumstances, by reference to the lay evidence and the risks of the employment concerned when Mr Markey sustained the s 4 injury.[223] This was consistent with the test in s 9B and with the factual circumstances. The Member made a factual finding, regarding the risk to which Mr Markey was exposed in the employment and the comparative element, in her reasons at [193] to [194]:
“193. Rather than being a freak accident, the injury suffered by Mr Markey is of a kind which might be expected to occur if a long piece of plastic was being passed from a mezzanine level to the factory floor. It might be expected that the person catching the plastic on the factory floor would be struck by it. It is a significant risk arising from the way the factory was set out and the kind of materials used by UPVC to produce its products. It is not difficult to see how merely manipulating lengths of the kind of plastic used to make windows and doors might expose a worker to the risk of being struck.
194. I am satisfied that Mr Markey’s injury was suffered because the nature of his specific employment at UPVC gave rise to a significantly greater risk of a blow to the side of the head than if he had not been so employed.”
[223] Reasons, [190]–[194].
The comparative assessment was that required by the section, comparing the risk of injury in the employment concerned with that if Mr Markey had not been employed in employment of that nature. It was open to the Member to make the factual finding which she did on this issue. Given the nature of the comparative risk being assessed, I cannot see this assessment would have been assisted by additional medical evidence. None of the parties sought to adduce such evidence. The Member noted Mr Romano’s evidence that the task being performed by Mr Markey at the time of injury was one that “had to be done carefully”.[224] The Member was entitled to have regard to this evidence, which was relevant to the level of risk. The Member’s finding was one of fact that was properly open to her.
[224] Reasons, [192].
UPVC argues that my earlier decisions in De Silva, Kim and Galea were wrongly decided. It argues the term ‘the nature of the employment’ in s 9B required consideration of “the class of employment as opposed to the employment engaged in by the worker”. UPVC submits the phrase should be construed to mean “the inherent character” or “a kind of class usually distinguished by fundamental or essential characteristics” (see [192] above). The phrase ‘the nature of the employment concerned’, and the nature of the test in s 9B, were discussed in De Silva at [56] to [73] and [86] to [106]. That discussion referred to decisions in Commonwealth v Bourne[225] and Connair Pty Ltd v Frederiksen,[226] which involved the ‘disease’ provisions in Commonwealth legislation and which adopted a construction similar to that for which UPVC argues. I referred to Mercer v ANZ Banking Group,[227] Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited[228] and Harrison v Melhem.[229] I concluded, relevant to the argument that UPVC now raises:
“The concept of a fairer and more reasonable test for employers to meet is consistent with the view I have formed regarding the ordinary and grammatical sense of the phrase. An employer would not be involved in meeting a test if the phrase referred to a class or classification of employment, rather than to the particular employment in which a worker suffered injury.”[230]
[225] [1960] HCA 26; 104 CLR 32.
[226] [1979] HCA 25; 142 CLR 485.
[227] [2000] NSWCA 138; 48 NSWLR 740.
[228] [2009] NSWCA 324; 7 DDCR 75.
[229] [2008] NSWCA 67; 72 NSWLR 380.
[230] De Silva, [73].
On the statutory construction point, I adhere to the reasoning in the earlier decisions in De Silva, Kim and Galea.

GROUNDS NOS. 4 and 5

The Member erred in law concluding that the medical evidence relied upon by Mr Markey was sufficient to justify a conclusion that he had full incapacity because of the alleged thumb injury with the consequence being that the appellant was liable to the Nominal Insurer with respect to the s 145 notice as it concerns compensation payable for the thumb injury: Reasons [197]–[198]. The Member should have concluded that there was insufficient evidence to support incapacity associated with the thumb injury.

The Member erred, as a matter of fact and law, in concluding that the appellant was liable to meet the s 145 notice issued by the Workers Compensation Nominal Insurer: Reasons [206].

UPVC’s submissions

UPVC submits the s 145 notice sought recovery in respect of payments that related to both the stroke injury and injury to the right thumb. It submits no medical certificates of incapacity were submitted in respect of the thumb injury and medical records showed a significant history of hand injuries. UPVC states the Member’s finding that there was an injury to the thumb is not challenged on appeal.[231]
[231] UPVC submissions, [74]–[77].
UPVC refers to s 44B of the 1987 Act which provides for the submission of certificates of capacity. It submits Mr Markey’s certificates did not refer to the thumb injury and thus the Member could not find there was incapacity in that regard. It submits the Member was incorrect to conclude there was compensable incapacity which could be the subject of s 145 recovery.[232]
[232] UPVC submissions, [78]–[83].
UPVC submits the conclusion on incapacity is arguably inconsistent with some of the medical evidence. It submits Dr Walker considered Mr Markey had capacity for part of the period the subject of the s 145 notice. UPVC submits its submission to this effect was not dealt with by the Member, and so could give rise to jurisdictional error on the basis it was overlooked.[233] It submits that the Member’s finding of incapacity associated with the thumb injury (associated with recovery pursuant to the s 145 notice) should be set aside. It should be concluded that the notice is invalid.[234]
[233] UPVC submissions, [84].
[234] UPVC submissions, [85]–[86].

Nominal Insurer’s submissions

The Nominal Insurer submits Ground No. 4 is “fatally flawed”. The finding of incapacity was not based on the thumb injury. The Member found Mr Markey had “no current capacity” in the period to 26 May 2021. She referred to the certificates of Dr Poate (the treating doctor).[235] The Nominal Insurer submits UPVC’s submissions proceed on the basis that weekly payments were only payable “if both injuries individually caused total incapacity”. The Member dealt with the thumb injury in her reasons at [154] to [159]. The certificates only relied on the head/neck/stroke but that was sufficient to support the doctor’s certification of total incapacity as per the certificates. Dr Poate regularly reviewed Mr Markey during the relevant period. It was immaterial that Mr Markey may have had an additional incapacity resulting from the thumb injury.
[235] Reasons, [55].

The Nominal Insurer submits no error of fact or law is made out by UPVC under this ground, and the Member’s decision was sound in fact and law. [236]
[236] Nominal Insurer submissions, Ground 4, [1]–[4].

Mr Markey’s submissions

Mr Markey submits UPVC’s submissions read s 44B of the 1987 Act as imposing a constraint on the power of a Member, to determine incapacity as a result of injury, which is not found in the legislation. The finding that the thumb injury required treatment (reasons, [196] to [197]) is sufficient to create a liability. Mr Markey’s submissions note the weekly period at issue was from 20 November 2020 to 26 May 2021.[237] Mr Markey refers to Dr Walker’s report dated 26 March 2021, which includes:
“He does have a genuine thumb injury which would preclude his exact work that he was performing irrespective of the effects of the stroke. His current situation is related to the injury at work and has not as yet resolved, although there is a good chance that it will.”
[237] Markey submissions, [7.41]–[7.43].
Reference is made to Dr Walker’s report dated 16 May 2021:
“His current socio domestic situation has been outlined in more detail in my original report. That problem together with the pain in his hand would preclude in my opinion going back to his former job or perhaps any other unsponsored paid work at least for the time being.”
Mr Markey submits UPVC’s submissions “do not properly address the evidence nor is the submission in fact supported by the evidence on any proper reading”. It is submitted that Ground No. 4 is not made out.[238]
[238] Markey submissions, [7.44]–[7.47].

UPVC’s submissions in reply

UPVC submits the certificates did not refer to a thumb or hand injury. It submits the notice was for compensation paid which was unsupported by certificates, therefore “the entirety of the notice must be held to be invalid”. Compensation was paid for both injuries and was not divisible when it comes to the notice. The “payment of compensation for the thumb injury infects the entirety of the notice”.[239]
[239] UPVC submissions in reply, [21]–[23].
UPVC refers again to a history of prior hand complaints. It refers to s 44B of the 1987 Act. It submits:
“[T]he test is whether the incident which is the subject of the payment of compensation and to which the s 145 notice is directed led to incapacity and recoverable compensation and for that there needs to be evidence to support that conclusion. The failure to provide this information and certificate (in the context of the thumb injury) should be fatal to the claim to enforce the s 145 notice in its entirety ... The proper management of the claim was the responsibility of the [Nominal Insurer] and with respect the failures of the [Nominal Insurer] to properly manage the claim (given the issues with the payment for the alleged thumb injury) should not result in it being able to successfully seek to recover pursuant to s 145 of the 1987 Act.”[240]
[240] UPVC submissions in reply, [24].

Consideration

Subsections (3), (4) and (5) of section 145 of the 1987 Act provide:
“(3)    A person on whom a notice has been served under subsection (1) in respect of an injured worker may, within the period specified in the notice, apply to the Commission for a determination as to the person’s liability in respect of the payment concerned.
(4)     The Commission may hear any such application and may—
(a) make such determination in relation to the application, and
(b) make such awards or orders as to the payment of compensation under this Act to or in respect of the injured worker concerned, as the Commission thinks fit.”
(5)     In any proceedings under subsection (4), a certificate executed by the Nominal Insurer and certifying that—
(a) the payments specified in the certificate were paid to or in respect of an injured worker named in the certificate, and
(b) a person named in the certificate was, in the opinion of the Nominal Insurer, liable at the relevant time to pay to or in respect of the injured worker compensation under this Act or work injury damages,
is (without proof of its execution by the Nominal Insurer) admissible in evidence in any proceedings and is evidence of the matters stated in the certificate.”
UPVC submits that “no medical certificates of incapacity were submitted in respect of the thumb injury”. It refers to s 44B of the 1987 Act, which makes provision for the supply of certificates of incapacity to an insurer. It submits Mr Markey’s certificates did not refer to the thumb injury and thus the Member could not find there was incapacity in that regard. UPVC refers to no authority for this assertion, which is wrong. The Commission is not precluded from making findings of incapacity (or awarding compensation) in the absence of medical certificates.
UPVC was “a person on whom a notice has been served” within the meaning of s 145(3). UPVC applied to the Commission for a determination as to its liability consistent with s 145(3). The Commission was empowered to make a determination together with awards or orders in accordance with s 145(4). The notice dated 9 June 2021 had probative force consistent with s 145(5). UPVC submits in Ground No. 5 that both the Member’s decision and the s 145 notice should be set aside.[241] There is no viable reason advanced in support of this submission.
[241] UPVC submissions, [86].
There is no authority advanced for the submission that, as Mr Markey’s certificates did not refer to the thumb injury, the Member could not find there was incapacity. The submission that payment of compensation for the thumb injury “infects” the entirety of the notice, making it invalid, is not referenced to the legislation or any authority, and is without merit. The evidence regarding incapacity (resulting from the multiple injuries sustained in the work incident) was sufficient to support the findings. There is no principle that the injury to the thumb had to be separately productive of incapacity if it was to be compensable.
UPVC faintly raises an argument that the Member failed to deal with its submission regarding Dr Walker’s opinion and incapacity, and that this constituted jurisdictional error.[242] It is put in terms of “arguably inconsistent”, “failure to do so can give rise to an appealable and jurisdictional error” and “submissions put might be dispositive”. It is not articulated with sufficient clarity to be meaningfully considered. In any event, I accept the submissions by the respondents on this issue. There was ample medical evidence that supported the Member’s findings on incapacity. Dr Walker’s reports did not support a contrary view, and any failure on the Member’s part to refer to the argument described at [212] above would not have affected the result. In Wang v State of New South Wales McCallum JA (Macfarlan and Meagher JJA agreeing) said:
“The submission invoked the decision of the High Court in Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 in which it was stated that a failure to respond to a substantial, clearly articulated argument relying on established facts was a constructive failure to exercise jurisdiction: at [24] to [25] per Gummow and Callinan JJ. The decision is not authority for the proposition that any failure to refer to any argument put to a trial judge amounts to error. It is necessary to engage with the nature and materiality of the argument in the context of the issues in the proceedings. In Dranichnikov, the Refugee Review Tribunal, in considering whether Mr Dranichnikov had a well-founded fear of persecution on the grounds of his status as a member of a particular social group, overlooked or misconceived the particular social group to which he claimed to belong. That was the central question in the proceedings.
The approach taken in the present case was to list every submission put on behalf of Mr Wang to which the primary judge did not refer in his judgment and to assert error on that basis. That reflects a wrong approach. The primary judge was not required to address every submission advanced during the course of the hearing: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271.”[243]
[242] UPVC submissions, [84].
[243] [2019] NSWCA 263, [63]–[64].
Grounds Nos. 4 and 5 are without merit and fail.

CONCLUSION

Each of the grounds raised by UPVC have failed. The appeal fails.

DECISION

The Certificate of Determination dated 6 April 2022 is confirmed.

Michael Snell
Deputy President

14 March 2023