Death v Workers Compensation (Dust Diseases) Authority (No 1) [2020] NSWDC 103

Summary

The plaintiff sought benefits available to persons in NSW who have developed an asbestos related disease in the course of employment in accordance with Workers Compensation (Dust Diseases) Act 1942 (‘1942 Act’). This case considers whether a person who performs voluntary work is a “worker” for the purposes of the benefits available under the 1942 Act.

Background

The plaintiff contracted mesothelioma after being exposed to asbestos, dust and fibre whilst working at a hardware business owned by her brother-in-law. The plaintiff filed a statement of claim on 15 September 2019 against iCare Dust Diseases Care (‘DCC’) seeking damages pursuant to section 8 of the 1942 Act. DDC had declined the plaintiff’s claim on the basis that the plaintiff was not a ‘worker’ as defined by the 1942 Act.

At trial, the plaintiff provided affidavit evidence to the effect that she assisted in unloading and moving asbestos cement sheets and compressed asbestos sheeting at her brother-in-law’s hardware business on multiple occasions between 1976 and 1977. She also said she undertook laundry tasks which exposed her to dust which had settled on her brother-in-law’s work uniform.

It was accepted that the work performed by the plaintiff was on a voluntary basis. However, she submitted the performance of these duties, although performed in a voluntary capacity, classified her as a worker for the purposes of the 1942 Act.

The matter was appealed to the District Court to determine whether the plaintiff was a ‘worker’ for the purposes of the 1942 Act.

Submissions and Findings

The plaintiff argued that performing work for her brother-in-law in a voluntary capacity made her a ‘worker’ for the purposes of the 1942 Act. She submitted that the word ‘worker’ in that context did not refer to a ‘worker’ engaged under a contract of service, but rather referred to any person carrying out work, even of a voluntary nature.

In determining the issue, his Honour Judge Neilson considered the definitions of ‘worker’ and ‘employer’ under the 1942 Act, as well as the Workplace Injury Management and Workers Compensation Act 1998 (amongst others).

Briefly, section 3 of the1942 Act provides the following definition of ‘employer’:

Employer means an employer of workers in any industry or process, employment in which exposes the worker to the possibility of contracting a dust disease.

Under the 1998 Act, ‘worker’ is defined at section 4 as:

a person who has entered into or works under a contract of service or a training contract with an employer…

His Honour also considered on section 8(1)(a)(i) of the 1942 Act which stipulates:

…that such person was a worker during the whole of the time the person was engaged in such occupation…

His Honour adopted the long-standing view that relationship between an employee (the ‘worker’) and employer was one that was pursuant to a contract for service. This contract contained the usual elements of offer, acceptance of the offer, consideration passing from one to the other and the intention to create a legal relationship. Accordingly, the term ‘worker’ was to be understood as an employee pursuant to a contract for service in the context of workers compensation legislation

Thus, his Honour noted the phrase ‘employer of workers’ in section 3 of the 1942 Act indicated that workers are to be employees, not volunteers. He further commented that the operative provisions in section 8(1)(a) require a worker to be engaged in an ‘occupation’, which was apt to describe employment pursuant to a contract for service, not a volunteer engaging in duties which the plaintiff had been performing at the hardware business. Finally, the word ‘engaged’ was appropriate to describe a binding relationship between parties.

Volunteer work in that regard was not a binding agreement. He further noted that no consideration had passed between the plaintiff and her brother-in-law to indicate a contract of service was in place.

Accordingly, on the above interpretation of the 1942 Act, his Honour dismissed the appeal.

Implications

A person completing work on a voluntary basis will not be regarded as a ‘worker’ for the purposes of the Workers Compensation (Dust Diseases) Act 1942. The 1942 Act has been interpreted to classify workers as employees engaged in an occupation pursuant to a contract of service.