Van Wessem v Entertainment Outlet Pty Ltd - [2010] NSWWCCPD 97

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*STATUS: Decision confirmed on appeal: Van Wessem v Entertainment Outlet Pty Ltd* [2011] NSWCA 214**
CITATION:		Van Wessem v Entertainment Outlet Pty Ltd [2010] NSWWCCPD 97
APPELLANT:		Susan Van Wessem
RESPONDENT:		Entertainment Outlet Pty Ltd
INSURER:		QBE Workers Compensation (NSW) Limited
FILE NUMBER:		WCC A1-010009/09
ARBITRATOR:	Mr M Oldfield
DATE OF ARBITRATOR’S DECISION:		3 May 2010
DATE OF APPEAL DECISION:		10 September 2010
SUBJECT MATTER OF DECISION:		Section 4, in the course of employment; s 9A, self-employed working director
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Beston Macken McManis
Respondent:		Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 3 May 2010 is confirmed. No order as to the costs of the Appeal.

BACKGROUND TO THE APPEAL

On 31 May 2010, Susan Van Wessem (the appellant) sought leave to bring an Appeal Against Decision of Arbitrator in the Workers Compensation Commission (the Commission) against a decision dated 3 May 2010.

The respondent to the appeal is Entertainment Outlet Pty Ltd (the respondent).

Mrs Van Wessem is the widow of Stephen Jan Van Wessem (Mr Van Wessem/the worker).
Mr Van Wessem was the sole working director of the respondent. He was tragically killed on Bobbin Head Road in the Ku-ring-gai National Park whilst riding his bicycle on Sunday 15 February 2009 at approximately 11.00 am.
The respondent had entered into a contract with Aussie Home Loans Pty Limited to provide advice and act as a mortgage broker for clients of Aussie Home Loans Pty Limited.
Aussie Home Loans supplied referrals to Mr Van Wessem from inquiries made to them by potential customers. Mr Van Wessem was required to follow up those referrals by telephone contact within two hours and, if necessary, make arrangements to visit the client.
Mr Van Wessem had no office or premises to undertake this work. He worked from home, making contact with clients by using his mobile phone and email.
Mr Van Wessem was not an employee of Aussie Home Loans. He was not paid any salary. His income was derived from commissions on home loans entered into by clients referred to him. He did not have any set hours of work, but was required to adhere to the terms of a contract with Aussie Home Loans and any other policies or directives issued by them.
Mr Van Wessem often worked outside normal working hours and frequently worked on weekends. When not undertaking work for Aussie Home Loans, Mr Van Wessem was free to go about his domestic and recreational activities as he chose.
Mr Van Wessem was an avid bike-rider. He usually rode three times a week into the Ku-ring-gai National Park, often with his friend, Mr Phillip Williams.
On Sunday 15 February 2009, whilst cycling on Bobbin Head Road in the Ku-ring-gai National Park, Mr Van Wessem lost control of his bike and collided with a vehicle travelling in the opposite…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2010] NSWWCCPD 97
Decision Date: 10 September 2010

CaseChat Overview and Summary

The matter before the court was an appeal by Van Wessem against a decision of an Arbitrator, which found that the claim for workers' compensation brought by Van Wessem against Entertainment Outlet Pty Ltd was not valid. Van Wessem was the sole director and shareholder of the company, and the dispute centred on whether his injury occurred in the course of his employment or if he was self-employed, thereby disqualifying him from workers' compensation under the relevant statute.

The central issue for the court was to determine whether Van Wessem was acting in the course of his employment at the time of the injury. Specifically, the court needed to decide whether the statutory definition of "in the course of employment" applied to Van Wessem, considering his status as a working director. Another pertinent question was whether the self-employed working director exception applied to Van Wessem's situation.

The court examined the circumstances of Van Wessem's employment and the nature of his role within the company. It considered whether his activities were integral to the business operations of the company and whether he was carrying out work that was typical of an employee. The court also assessed whether the exception for self-employed working directors was applicable based on the facts presented. Ultimately, the court found that Van Wessem's injury did not occur in the course of his employment, and that he fell under the exception for self-employed working directors. The court confirmed the decision of the Arbitrator and dismissed the appeal. There was no order as to the costs of the appeal.

Orders

Orders of the court

The decision of the Arbitrator dated 3 May 2010 is confirmed.

No order as to the costs of the Appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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