Stuart v Workers Compensation Nominal Insurer & Ors (NSWPIC 2023)

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Key Takeaways

• Whether someone is a worker for the purposes of s4 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act) requires a broad view of the worker’s duties, employer expectations and circumstances arising from any sort of agreement with the employer.
• Factors in considering ‘a substantial contributing factor’ involves consideration of a holistic view of the events/circumstances in the lead up to the incident. There needs to be an evident nexus between the incident and a work activity in order for employment to be considered a substantial contributing factor.

Brief Facts

The deceased was in a fatal accident on a quad bike on a farm in Sofala. The property was approximately 100 acres in size and held a small, fenced property with a house within it, where the deceased resided.
It was alleged by the deceased’s estate that the deceased was employed by the farm at the time of his death and that employment was a substantial contributing factor to his death. The estate made a claim for the lump sum benefit pursuant to section 25(1) of the Workers Compensation Act 1987 (NSW) (the 1987 Act).

The issues in dispute were:

• whether the deceased was a worker within s4 of the 1998 Act ; and
• whether employment was a substantial contributing factor to injury within s9A of the 1987 Act.

Important facts to note that had an impact on the Member’s judgment:

• the deceased had a previous workplace accident causing a broken foot in 1994 that eventually resulted in a below the knee amputation in 2010. Due to this, the deceased had an alcohol illness arising out of the prior injury.
• The farm made an agreement with the deceased that they would offer him two or three days paid work on the farm, and allow him to reside in the old house free of charge.
• The deceased would use his own quad bike to drive around the property. However, the farm would pay for his fuel.
• The farm alleged that the deceased was not a caretaker or an employee. Only subcontractors were engaged such as shearers.
• The cause of death confirmed in the coroner’s report was a head injury. The other relevant information derived from the investigation was a finding of acute alcohol intoxication, which had ‘most likely contributed to the mechanism of death’.

Judgment

Issue one – was the deceased actually a worker pursuant to s4 of the 1998 Act?

The Member confirmed that the evidence supported the deceased’s extensive experience as a farm hand who had the requisite skill set to perform all works. The farm would provide the deceased with fuel for his quad bike to use on the property and it seemed inconsistent that he would be given fuel where there was not some mutual benefit. The Member held that it seemed obvious that the deceased was provided with a place to live in exchange for minding the family farm while they were not present, who also had extensive farming skills and knowledge.

The Member ultimately found in favour of the estate that the deceased was a ‘worker’ within s4 of the 1998 Act.

Issue two – was employment a substantial contributing factor to the injury?

The colleague who was with the deceased shortly prior to the quad bike incident was unable to explain the inconsistency of what time the deceased left the house on his quad bike. This caused the Member ‘some concern’.

The Member referred to a statement from the owner of the neighbouring property who had attended the Sofala Hotel where the deceased had a few drinks prior to returning to the property, who observed the deceased and his colleague as ‘intoxicated’.

The Member noted that there was incontrovertible evidence that where the deceased had his fatal incident was outside of the farm and not where stock may have wandered off. It was noted that there was no evidence to lead the Member to make a finding that he was travelling on his quad bike in connection with an activity on the farm.

Therefore, the Member was not satisfied that the deceased’s employment was a substantial contributing factor to his death.

Implications

The Member clearly states that the onus is on the applicant to prove what activity the worker was engaged in at the time of the accident and that employment was a substantial contributing factor to the injury. The applicant, in this case, did not satisfy proof of both factors.