CA 40984/99
CC 8086/95
POWELL JA
STEIN JA
FITZGERALD JA
Wednesday, 18 October 2000
COMMERCIAL UNION WORKERS' COMPENSATION (NSW) LIMITED v Gayl Lynette CLAYTON & ORS
JUDGMENT
1 POWELL JA: I agree with Stein JA.
2 STEIN JA: This is an appeal from a decision of Judge Hughes in the Compensation Court. On 24 November 1999 his Honour made an award in favour of the first respondent, Ms Clayton, concerning an accident she had sustained on 14 June 1993 on a property near Walgett. She suffered serious injuries to her left hand when it caught in an auger.
3 The de facto husband of Ms Clayton, the second respondent, Mr Botfield, would go from farm to farm grading seeds. The machinery with which he carried out the operation required two operators. Mr Botfield usually hired casual labourers to assist him. However, on occasions, Ms Clayton assisted. This is what was occurring on 14 June 1993 when the accident happened.
4 From the commencement of the hearing before his Honour it was apparent that the real issue in the case was whether the applicant, Ms Clayton, could establish that she was a worker within workers' compensation legislation and in a master and servant relationship with Mr Botfield. The appellant insurer's case was that they were not in such a relationship and Ms Clayton was assisting her de facto husband as a volunteer at the time of the accident. Alternatively, they were partners.
5 In her evidence-in-chief, Ms Clayton said that she was employed by Mr Botfield on a casual basis and, in particular, was so employed on the day of the accident. She said that she was paid $100 a day, as were other labourers. This was paid by cheque signed by Mr Botfield. She agreed that no tax was deducted, nor were records kept, and no taxation return was lodged because she believed that she was below the tax threshold.
6 Ms Clayton was then cross-examined by counsel for the appellant insurer. She confirmed that she worked for Mr Botfield on a casual basis from 1984. She was shown some cheque butts produced to the court by Mr Botfield. She agreed that the cheque account was, for all intents and purposes, the sole source of funds for the family and that the account was used by Mr Botfield for his business. A large number of the cheque butts were written to 'cash'. Some of these had the word 'Gayl' on them. Ms Clayton agreed that she had added 'Gayl' at a time later than when the cheques were drawn. It was suggested to her that she added her christian name to the cheque butts to support her claim. Also, it was suggested that the relevant cheques were for domestic expenses and not wages. She denied both suggestions.
7 Ms Clayton was then cross-examined about a Workcover medical certificate which she had signed on 21 June 1993. She filled in Part A of the document and noted her employment as 'farm hand' and her employer as 'Trevor Botfield'. She agreed that she had originally written 'as above' but crossed it out and put in Mr Botfield's name as employer. She was aware that the certificate was provided to the insurer.
8 It was put to her that she did this to support her claim that she was actually employed by Mr Botfield. She denied this.
9 She was asked:
Q. 'You have always been honest, particularly since this injury?'
She answered 'No, Sir'.
10 Counsel then asked whether it was a fact that she had pleaded guilty in May 1997 to an offence. This was objected to by counsel representing the worker and also Mr Botfield's counsel.
11 Counsel for the appellant pressed the question as highly relevant to the credit of the witness, and likely also to be relevant to the credit of Mr Botfield. His Honour stated that Ms Clayton's own answer that she had not always been honest since the accident meant that she had called her own credit into question. He rejected the question sought to be asked.
12 The cross-examiner then turned his attention to Ms Clayton's honesty before the injury. This was initially objected to but the objection was withdrawn. Counsel was permitted to proceed and the witness agreed that she had been convicted on a charge of false pretences at Coonabarabran Local Court in April 1989 and placed on a bond. Counsel then cross-examined on other issues.
13 Later, counsel sought leave to cross-examine the worker further as to her credit and particularly her conviction in 1997. He said to his Honour:
The conviction was in respect of an attempt by the applicant, which was admitted by her before the court, to raise money on the basis of a forged document. That document being a document from my insurer as to the availability of certain funds in the hundreds of thousands of dollars and a bank advanced some money, some of which was spent before the fraud was discovered. The lady was charged and some years later was dealt with by the court. It does only go to credit but it arises, that is the offence, arises out of the present facts. That is, entitlement or no entitlement. So it does not go the question of Mr Botfield's liability but it certainly does, in my submission, go to the issue of credit.
14 The proposed line of questioning was objected to and counsel for the insurer added:
I only gave your Honour the most skeletal facts. The document from the - the undisputed facts were that a document from the insurer was utilised by the applicant to induce a bank to advance some moneys.
15 Counsel made it plain that he wished to pursue the matter as going to Ms Clayton's credit and her evidence of employment by Mr Botfield. His Honour's response was that she had already admitted that she was not a truthful person and how much further did he need to proceed. Ultimately, his Honour refused to allow the questions.
16 Mr Botfield gave evidence that he employed Ms Clayton on a casual basis. He said that he paid her for the work she performed and most of the cash cheque butts endorsed with 'Gayl' were for her wages.
17 Counsel for the insurer cross-examined Mr Botfield. Mr Botfield agreed that he did not keep any records apart from his cheque books and that he had never kept a wage book. He also agreed that all domestic and business expenses were taken out of his cheque account. He denied that all of the cheque butts marked 'Gayl' were for domestic expenses. He said that most of them were for wages.
18 Mr Botfield was not asked one single question to support the allegation in the insurer's pleading that he and Ms Clayton had 'conspired, connived and/or colluded with the intention of making a false claim for compensation'. He was not asked any questions about his awareness of Ms Clayton's dishonesty, or her Coonabarabran conviction before the accident. He was asked no questions about his knowledge of Ms Clayton's honesty since the accident, when she had already agreed in cross-examination that she was not honest.
19 Mr Botfield was not asked about his knowledge of any loan obtained by Ms Clayton from the State Bank at Walgett on the basis of a forged document on the appellant's letterhead or the impending settlement of the compensation claim for $564,000. He was asked no questions as to his knowledge of the State Bank advancing substantial loan funds to Ms Clayton in 1994 on the faith of the forged letter.
20 In his judgment, his Honour noted that the challenge to the relationship of master and servant between the worker and Mr Botfield was on the basis of a conspiracy between them to make a false claim.
21 His Honour noted that it was not contested that Ms Clayton was actually working to assist Mr Botfield in grading chick peas at the time of the accident. Two farmers had given evidence of Ms Clayton assisting Mr Botfield at times.