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Zuijs v Wirth Brothers Pty Ltd

Zuijs v Wirth Brothers Pty Ltd

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Case Copied 15 December 1955 32 min read

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93 CLR 561

WIRTH BROTHERS PROPRIETARY LIMI-

RESPONDENT,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Workers' Compensation (N.S.W.)-Worker-Acrobat-Injury-Compensation-Con- H. C. OF

tract of service-Control-Contract for services-Contractor-Trade or business- Workers' Compensation Act 1926-1948 (N.S.W.), S. 6 (3A).

The fact that the work to be performed under a contract involves the exercise by the party obliged to perform it of a particular art or special skill or individual judgment or action which the other party cannot in fact control or in the performance of which he cannot interfere does not of itself show that the contract is not one of service but an independent contract. The nature of the duties or the circumstances in which they are to be performed may be such as to leave little room for direction or command in detail, but SO long as there is lawful authority to command, though the scope for it be limited, the work is performed under a contract of service and not under an independent

Where an acrobat was engaged by the proprietors of an itinerant circus for an indefinite period at an agreed weekly sum to give with a companion an acrobatic display on the trapeze at each performance and to appear in the grand parade,

Held, that a finding that by reason of its nature the work was performed under an independent contract and not under a contract of service could not be sustained.

Section 6 (3A) of the Workers' Compensation Act 1926-1948 (N.S.W.) pro- vides: "Where a contract to perform any work exceeding five pounds in value (not being work incidental to a trade or business regularly carried on by the contractor in his own name, or under a business or firm name) is made with the

93 CLR 562

contractor, who neither sublets the contract, nor employs workers, the con- tractor shall, for the purposes of this Act, be deemed to be a worker employed by the person who made such contract with the contractor."

Held, (1) that a contract of indefinite duration for repeated performances of an acrobatic act does not fall within the opening words of the section a contract to perform any work exceeding five pounds in value."

(2) That the purpose of the exception or exclusion expressed by the words in brackets is to confine the benefit of the conclusive presumption which it establishes to persons who do not conduct an independent trade or business, who are not holding themselves out to the public under their own or a business or firm name as carrying on such a trade or business, and who do not in the course of that trade or business, as an incident of its exercise, undertake the work by entering into the contract. The section thus covers men who work for the principal but have no independent trade or business or who, though carrying on an independent trade or business, undertake a contract outside the scope or course of that trade or business.

Humberstone v. Northern Timber…

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: [1955] HCA 73
Decision Date: 15 December 1955

CaseChat Overview and Summary

Constantin Zuijs (the appellant) sought workers' compensation from Wirth Brothers Pty Ltd (the respondent) for injuries sustained while performing as an acrobat in the respondent's circus. The appellant claimed to be a "worker" either under a contract of service or by virtue of section 6(3A) of the *Workers' Compensation Act 1926-1948* (N.S.W.). The Workers' Compensation Commission found that the appellant was not employed under a contract of service and did not qualify under section 6(3A). The Supreme Court of New South Wales upheld this decision, and the appellant appealed to the High Court of Australia.

The High Court was required to determine two primary legal issues: first, whether the appellant was employed under a contract of service with the respondent, and second, whether the appellant was deemed to be a worker under section 6(3A) of the Act. The court considered whether the nature of the appellant's work as an acrobat, involving special skill and individual judgment, precluded it from being considered a contract of service, and whether the specific wording of section 6(3A) applied to the appellant's engagement.

The High Court reasoned that the fact that work requires special skill or individual judgment does not, of itself, mean it is not a contract of service. The critical factor is the lawful authority to command, even if the scope for command is limited. The court found that the appellant's engagement for an indefinite period at a weekly wage to perform a specific act as an integral part of the circus's spectacle, along with other duties such as appearing in the grand parade, indicated a contract of service. The court also determined that section 6(3A) was inapplicable because the engagement was for repeated performances under an indefinite contract, not a contract for a specific piece of work exceeding five pounds in value.

Consequently, the High Court allowed the appeal, discharged the order of the Supreme Court, and remitted the matter to the Workers' Compensation Commission for rehearing. The court directed that the first question in the stated case be answered in the affirmative, finding that the commission erred in law by holding the appellant was not employed under a contract of service, and the second question be answered in the negative, finding the appellant did not fall within section 6(3A).

Orders