Moffett v Robin

Moffett v Robin - [2021] NSWDC 211 - NSWDC 2020 case summary — Zoe

[3]

Non-economic loss

No damages may be awarded to a plaintiff for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case: s 16(1) of the CLA. Under s 16(3) of the CLA, if the severity of the non-economic loss is assessed by the court as being equal to or greater than 15% of a most extreme case, the damages for non-economic loss are to be determined in accordance with the table which is set out in the section. From 1 October 2020, the maximum amount for damages for non-economic loss under the CLA is $687,000: Civil Liability (Non-Economic Loss) Amendment Order 2020 (NSW).
Under s 3 of the CLA, "non-economic loss" is defined as meaning any one or more of the following items: pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. In the present case, there was no evidence or claim by the plaintiff of a loss of expectation of life. The plaintiff has also not had any surgical intervention resulting in relevant scarring. He received no relevant scarring injuries in the accident. Accordingly, there is no claim for disfigurement. The matters relevant to non-economic loss are thus confined to pain and suffering and loss of amenities of life. An assessment of these matters must be made in the light of the medical findings which I have set out.
As stated, I prefer the evidence of the various experts, including Dr Maxwell, that the plaintiff did not suffer a fracture at the T1 level of his spine or C8 nerve root impingement or altered sensation and paraesthesia or disco-vertebral bar damage or disc trauma a result of his injuries in the accident. On the basis of the evidence, I find that the plaintiff suffered neck and back soft tissue injuries in the accident with associated headaches from time to time. I have found that the plaintiff continued to have some neck pain after returning to work in January 2014 but the neck pain was likely not severe in the period from February 2014 until September 2016 as the plaintiff on the evidence did not seek medical advice in relation to the pain in the period. The plaintiff's alleged problems with his neck and back and headaches (and even allegedly to his arm) did not stop him working and there was no evidence that he took any days off work from February 2014 to March 2018 whilst he worked at Active because of his neck/back/headache conditions.
From early 2014 after he returned to work, with increasing severity from late 2016, I find that the plaintiff had some headaches, some pain in his neck and back including neck stiffness from time to time. This required five physiotherapy appointments as recommended by Professor Ghabrial. The plaintiff's problems arising from the accident did not require him to take any days off work whilst working for Active from January 2014 to March 2018. I have accepted the plaintiff's evidence that he had sporadic pains in the neck and upper back and obtained analgesic relief from time to time after leaving his work with Active. However, the reports of Professor Ghabrial and Dr Maxwell do establish in my opinion that the plaintiff suffers from ongoing pain in the neck area including in moving the neck and inflection and hyperextension of the neck and has mildly decreased movements and moderate tenderness at the T1 and C7 levels with mild muscle guarding.
Dr Maxwell found relatively poor tone of the cervical supporting muscles with some neck stiffness although he was of the view that these could be readily resolved with appropriate physiotherapy or exercise assistance. As stated above, I have found that the plaintiff suffered soft tissue injuries in the accident which continue to provide him with problems, including headaches, neck pain, stiffness and poor muscle tone. The stiffness in the plaintiff's neck was readily apparent to the court in the plaintiff's movements whilst he was giving evidence. There was no apparent embellishment by the plaintiff in his presentation. In relation to his medical condition, he appeared to the court to be an honest and straightforward witness.
Although Dr Maxwell suggested in his oral evidence the need for only limited physiotherapy guidance over one to two months, the period over which the plaintiff has had problems and the limited assistance from the five physiotherapy consultations which have already occurred, point in my view to a much longer period of required physiotherapy guidance and treatment as well as intermittent non-prescription analgesic relief. Professor Ghabrial's opinions support this.
I also take into account the plaintiff's evidence of the restrictions which he had due to his neck in some post-accident employment, particularly with Port Stephens Cranes and in garden activities. I accept that evidence.
Having regard to the medical evidence and the matters which I have referred to above, particularly the injuries being limited to soft tissue injuries which did not substantially affect the plaintiff's employment from February 2014 to March 2018, I assess the appropriate percentage of a most extreme case in relation to the claim of the plaintiff as being 18% which produces damages for non-economic loss (as a proportion of the maximum amount that may currently be awarded for non-economic loss of $687,000) of 2.5% being $17,175 which, pursuant to s 16(4) of the CLA, is rounded down to $17,000. I reject the submissions of the defendants and the cross-defendant that no amount should be allowed for non-economic loss for the reasons which I have given.

[8]

It can therefore be seen that the plaintiff's annual business earnings actually increased after the accident until the financial year ending 30 June 2018 when there was a substantial decrease. This seems to be linked to the plaintiff no longer receiving work from Active after March 2018 and having to seek other work.
The plaintiff makes various claims for past economic loss.
The plaintiff claims a loss of income in relation to the period from the day after the accident until he commenced work again in January 2014. The evidence was that the plaintiff had an income protection insurance policy which provided him with some payments in this period. No evidence was given as to the terms of the policy. In particular, there was no evidence whether there was paid a sum which reflected the plaintiff's actual earnings or some set or capital amount. Having regard to the lack of evidence on this issue, in my opinion any amounts received by the plaintiff from the policy of insurance should not be taken into account to reduce the damages which he received.
A fundamental object of an award of damages in the tort of negligence is to provide that sum of money which will put the party who has been injured in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation: Livingstone v Rawyards Coal Co (1880) 5 App CAS 25 at 39 per Lord Blackburn. This has been followed and accepted in numerous later High Court cases: for example, Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60 at 63. The amount received by the plaintiff was from a third party pursuant to a contract that he as an injured person had entered into being a contract of insurance. There may also have been a right of subrogation under the insurance policy in the insurer. Having regard to the limited evidence, the court is not in a position to determine whether the benefit was somehow linked in financial terms to the quantum of the lost wages: see Bradburn v Great Western Railway Co (1874) LR 10 Ex 1; National Insurance Co of New Zealand v Espagne (1961) 105 CLR 569 at 48; Downes v AMACA Pty Ltd [2010] NSWCA 76 at [79]-[86].
Looking at the evidence in Exhibit Q, it appears that the plaintiff's annual earnings at about the time of his accident were $35,000 as a result of his business. The defendants appear to concede an amount of loss of $830 net per week in their written submissions. Allowing some deduction for Christmas and New Year holidays and likely time off of one week, leaves a period of loss of about seven weeks until mid-January 2014. This arrives at the sum of $5,810 ($830 × 7). I allow this sum for past economic loss as a result of the period when the plaintiff was recovering before his return to Active.
The first defendant initially allowed $11,620 plus superannuation. However, this was based on the plaintiff being off work for February 2014 which is not supported by the evidence: T51.50; T52.45 and T195.45. It is difficult to see how superannuation should be allowed when the plaintiff's terms of engagement did not include superannuation.
Having regard to the evidence of the plaintiff's earnings at Active and his evidence that he did not take any time off work at Active as a result of the injuries in the accident whilst he was working with it after returning to work, I do not allow any amount for loss of earnings in the period from February 2014 until the end of March 2018.
One then needs to turn to a consideration of the plaintiff's economic loss, if any, from April 2018 to the present time. Relevant factors include the plaintiff's reduction of work from Active not connected to the accident, the plaintiff's Q fever with some time off work, the plaintiff's hernia injuries and surgery, the Covid 19 reduction in the plaintiff's potential bar work and the plaintiff's elbow condition. But for the accident, the plaintiff would likely have undertaken tree lopping and clearing work as well as a wider variety of handyman and home maintenance and garden work. However, I accept the first defendant's submission that the evidence establishes the plaintiff has had some home handyman paid work in late 2020 and early 2021: Exhibit 1D19. In my view, the appropriate way to deal with past economic loss from March 2018 to present is by the award of a buffer. I reject the submissions of the defendants to the contrary. The plaintiff's neck condition has clearly caused a reduction in his earning capacity from March 2018. Doing the best I can in the light of the plaintiff's pre-accident earnings, his various other injuries and illnesses and the time off which he had for them I allow the sum of $15,000 as a buffer.
In relation to past superannuation, in my view if the accident had not occurred, the plaintiff would have likely continued working for Active or a similar company. As a contractor, he did not receive superannuation payments from Active and thus he has suffered no past superannuation loss as a result of the accident.

[9]

Future economic loss

The plaintiff claims a large amount for future economic loss. Section 13 of the CLA requires me to determine the plaintiff's most likely future circumstances but for the injury. In my opinion, but for the injury the plaintiff would have stayed with Active until 2018 undertaking the duties which he did until he received less work from March 2018. He then would have sought other similar tree work (including where necessary hands on work) from another company as a contractor supplemented with additional work when appropriate and available. He may have even returned to undertake work for Active after the downturn in work passed. There is no suggestion he had similar restrictions or injuries before the accident.
In my view, based on the medical evidence which I have preferred, the plaintiff will likely in due course improve significantly with physiotherapy and directed conditioning exercises. Mr Moffett believes he could earn up to $700 per week undertaking light bar work or similar light work not involving overhead work: see written submissions paragraph 30; T81.31. However, this appears to have been the highest amount he had received for bar work in a week in the past and the receipt of this sum or something very near it is not certain.
It is likely tree lopping rates would have increased somewhat since the plaintiff's November 2013 rates: see T935.12 cf T418.27.
The plaintiff indicated in his evidence the range of jobs and tasks which he could do now: T394-398.
It is unclear how long the plaintiff will be further restricted as part of his injuries until he can undertake and complete the necessary treatment. At present he can undertake some bar type work and limited gardening and home maintenance duties. In my view, he has a clear present loss of earning capacity as he is currently limited in the jobs he can perform as a result of his injuries arising from the accident. In my view, in these uncertain circumstances the award of a buffer for loss of future earning capacity is warranted: Penrith City Council v Parks [2004] NSWCA 201 at [5]; Dal v Chol [2018] NSWCA 219 at [18] and [142]. The precise calculation of any loss cannot occur. Based on a period of loss of future earning capacity of about 1-2 years with a degree of uncertainty taken into account as to the complete success of the treatment, I would allow the sum of $25,000. This takes into account the plaintiff's recovery from Q fever, the improving Covid 19 position for bar work in clubs, a period for transitioning into tree or heavier garden work after his recovery following physiotherapy treatment, the lower pay for bar type work in the interim, the prospect of having difficulties obtaining the work, the possibility of higher paid work with a more demanding schedule of work following recovery and the plaintiff's earning history prior to his injury which I have set out above.
Again, some of the likely work will be contractor work. I therefore only allow a buffer of $1,250 for loss of future superannuation benefits

Parties

Applicant/Plaintiff:

Moffett

Respondent/Defendant:

Robin

Legislation Cited (7)

Civil Liability Act 2002(NSW)

Workers Compensation Act 1987(NSW)

Employees Liability Act 1991(NSW)

Law Reform (Miscellaneous Provisions) Act 1946(NSW)

Workplace Injury Management and Workers Compensation Act 1998(NSW)

Limitation Act 1969(NSW)

Liquor Act 2007(NSW)

Cases Cited (62)

Kondis v State Transport Authority (1984) 154 CLR 672 Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555 Livingstone v Rawyards Coal Co (1880) 5 App CAS 25 Lloyd v Thornbury [2019] NSWCA 154 Mason v Demasi [2009] NSWCA 227 Miljus v Watpow Constructions Pty Ltd [2012] NSWCA 96 National Insurance Co of New Zealand v Espagne (1961) 105 CLR 569 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA 460 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 Penrith City Council v Parks [2004] NSWCA 201 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 Police Service of New South Wales v Honeysett [2001] NSWCA 452 RTA v Dederer (2007) 234 CLR 330 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 Sydney Water Corporation v Abramovic [2007] NSWCA 248 Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 Watson v Foxman (1995) 49 NSWLR 315 WB Jones Staircase & Handrail Pty Ltd v Richardson [2014] NSWCA 127 Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 Category: Principal judgment Parties: John Moffett (Plaintiff) Apihana Robin (First Defendant; Cross-Claimant to First Cross-Claim; Cross-Defendant to Fourth Cross-Claim) Active Tree Services Pty Ltd (Second Defendant; Cross-Defendant to First Cross-Claim; Cross-Claimant to Second Cross-Claim; Cross-Claimant to Fourth Cross-Claim) WFI Insurance Limited t/as Lumley Insurance (Cross-Defendant to Second Cross-Claim) Representation: Counsel: C Hart (Plaintiff) A Combe - via AVL and later in person (First Defendant; Cross-Claimant to First Cross-Claim; Cross-Defendant to Fourth Cross-Claim) S McMahon (Second Defendant; Cross-Defendant to First Cross-Claim; Cross-Claimant to Second Cross-Claim; Cross-Claimant to Fourth Cross-Claim) M Hamdan - via AVL and later in person (Cross-Defendant to Second Cross-Claim)

The plaintiff's oral evidence

The plaintiff, Mr Moffett, gave oral evidence over several days and was cross-examined extensively by counsel for the other parties.
Mr Moffett gave evidence that he was born in November 1971 which made him 42 years of age on the day of the accident and 49 years of age at the time of the final hearing.

Cited By (1)

Moffett v Robin

Mr Robin

Mr Robin submits, in summary, in his written submissions dated 8 March 2021 and his oral submissions as follows: 1. Mr Moffett's claim in negligence against Mr Robin must fail on three bases, being that he has not established negligence by Mr Robin, the risk of harm was an obvious risk of which Mr Moffett was aware and of which Mr Robin had no duty to warn and Mr Moffett's contributory negligence was equivalent to 100% for the purposes of ss 5R and 5S of the CLA; 2. The cross-examination of Mr Moffett disclosed that Mr Moffett was the most experienced worker in the crew and was the leading hand of the crew leading up to and on 25 November 2013; 3. Mr Moffett knew from February 2017 that there was no evidence of a T1 injury including a fracture. Most of the medical issues for which Mr Moffett sought treatment after 25 November 2013 were unrelated to his injury on 25 November 2013. On the evidence in relation to the accident, Mr Robin followed the standard procedure for keeping contact with anyone from the EWP. Mr Moffett's versions of events are inconsistent. It should be found that Mr Moffett went into the drop zone after Mr Robin clearly indicated to the crew that he was about to start cutting. Mr Moffett conceded in cross-examination that he could not be sure if eye contact was made with Mr Robin. Mr Moffett, as the leading hand, had responsibility for making sure the crew was operating safely and efficiently. Mr Moffett's denial that he was the leading hand should be rejected in the light of all of the evidence. Mr Robin's evidence that Mr Moffett was the leading hand of the crew on 25 November 2013 was not challenged and was confirmed by other evidence including from Mr Brady; 4. Mr Robin was a reliable witness. Mr Moffett should have realised from Mr Robin raising his hand, grabbing the saw and revving it that he was about to start cutting. It should be found that Mr Robin signalled by raising his hand and the hydraulic saw and revving the saw to the ground crew he was about to cut. It should be found that Mr Moffett saw those signals and entered the drop zone during the cut. Alternatively, Mr Moffett simply failed to look up and entered the drop zone below the bucket of the EWP without first making eye contact with Mr Robin; 5. The risk of entering the drop zone was an obvious risk for the purposes of s 5F of the CLA. The risk was obvious to a reasonable person in Mr Moffett's position given his experience and knowledge including as leading hand. Section 5H of the CLA applied and there was no proactive duty on the part of Mr Robin to warn of the obvious risk; 6. Contributory negligence for the purposes of ss 5R and 5S of the CLA should defeat the claim of Mr Moffett for damages. Mr Moffett was the most experienced worker, was the leading hand and knew of the difficulties working in the bucket of the EWP with an hydraulic saw. Mr Moffett did not make eye contact and did not ensure that Mr Robin knew of his presence before entering the drop zone; 7. The contemporaneous medical evidence when studied in detail showed that Mr Moffett was incapacitated for work until approximately January 2014 (altered from the written submissions) when he returned to work with Active but otherwise suffered only soft tissue injuries from which he had fully recovered. He did not suffer at any time a T1 fracture. There was a substantial gap of nearly two and a half years between 2014 and 2016 after Mr Moffett's last treatment at the Reliance Medical Centre. This two and a half year period suggests Mr Moffett had fully recovered from the effects of the injury as opined by Dr Maxwell. The history of Mr Moffett's complaints showed he had no left arm problems or left arm weakness. This is consistent with Dr Roser's report. Further, medical records showed no or little complaints of neck symptoms but complaints of multiple, unrelated medical issues including Q fever, right sided elbow problems plus the plaintiff's umbilical hernia which was sustained in employment with Carpet Court. Mr Moffett's allegations of neck and left arm symptoms after March 2014 are not borne out by the medical evidence. There is no contemporaneous evidence of complaint of sensory changes to the left arm and there was a denial of paraesthesia in the contemporaneous treatment notes. It should be found the reason Mr Moffett sought treatment for the neck and/or left arm from late 2016 was to help his claim for damages; 8. The opinions of Dr Maxwell should be preferred. The opinions of Professor Ghabrial should not be accepted; 9. Mr Moffett's claim for damages is exaggerated and does not accord with the objective evidence. If damages are awarded, they should be limited to a closed past period of economic loss from 25 November 2013 to mid-January 2014; 10. No amount should be awarded to Mr Moffett for non-economic loss as he does not reach the 15% threshold; 11. Mr Moffett's economic loss should be limited to the closed period from 25 November 2013 to approximately mid-January 2014. No amount should be allowed for economic loss after this time even on a buffer basis; 12. No more than $2,800 should be allowed for past out-of-pocket expenses. No amount should be allowed for future out-of-pocket expenses; 13. Mr Robin was at law an employee of Active pursuant to a contract of service. He worked full-time for Active at all relevant times. If the court finds Mr Moffett to be an employee it can make a finding with even more certitude with respect to Mr Robin. The existence of control, while significant, is not the sole criterion by which to gauge whether a relationship is one of employment. Applying Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21, Mr Robin was employed by Active under a contract of service. He was thus a "worker" under the WIM Act and the WCA; 14. If Mr Robin was an employee of Active under a contract of service, then Mr Robin is entitled to the benefit of a full indemnity from Active under s 3 of the Employees Liability Act 1991 (NSW). Active must indemnify Mr Robin in respect of any alleged negligence and liability to pay damages in respect of that liability. If the court finds both Mr Moffett and Mr Robin to be employees of Active, damages are assessed under the WCA and the WIM Act not the CLA. This is the case if there is a finding that Mr Moffett and Mr Robin are employees of Active; 15. The evidence clearly establishes that the court should find Mr Robin was employed by Active pursuant to a contract of service: written submissions dated 8 March 2021 paragraph 41; 16. The elements of "deemed worker" under the WIM Act overlap with the indicia in favour of a finding of a contract of service with Active and therefore a relationship of employment. Alternatively, the "deemed worker" provisions in the WIM Act are satisfied on the facts in relation to both Mr Moffett and Mr Robin; 17. Active should indemnify Mr Robin as Active retained control of the site and was vicariously liable for any negligence of contractors on site. Active failed to provide a safe system by ensuring an observer was appointed on the site in accordance with its SWMS document. A principal will in certain circumstances come under a duty to use reasonable care to ensure a safe system of work for independent contractors where it has control over and co-ordinates those services. Here, Active had control of the activities on 25 November 2013 as it was its job site and any crew had to work to the Active scope of works. Active retained control of the site. Mr Robin worked in accordance with the standard practice of crews doing work for Active and in accordance with the system prescribed by Active; 18. There was no observer appointed by Active. Active required an observer where there was cutting. If there was no observer, the SWMS document of Active was not complied with. It was clear that Mr Robin could not be the observer. Mr Cauduro should be accepted that a "spotter" was needed. The failure to ensure an observer was appointed was a failure to prescribe a safe system of work. Had an observer been appointed, the incident would have been avoided and it is thus just and equitable that Active indemnify Mr Robin for any liability to the plaintiff.
In his reply submissions dated 29 March 2021 and his written response to issues raised by the court, Mr Robin submits, in general summary, as follows: 1. He notes the indicia relied on by Active in support of the submission that Mr Moffett was a "worker" under the WIM Act and submits that the indicia also confirm Mr Robin was an employee of Active. It is stated that the indicia in favour of Mr Robin being a "worker" are stronger and lengthier than those relied on by Active with respect to Mr Moffett. This allows the court to conclude that Mr Robin was a "worker" pursuant to a contract of service with Active and therefore he was an "employee" for the purposes of the Employees Liability Act 1991; 2. If the court finds Mr Moffett and Mr Robin are both "workers", then the court must also find that Active is vicariously liable for any negligence of Mr Robin, Kondis v State Transport Authority (1984) 154 CLR 672 at 692. Active owed a non-delegable duty of care to provide a safe system of work to its employees, including Mr Moffett and Mr Robin; 3. There was a failure of Active's system of work - the failure to appoint an observer or "spotter". It was an essential integer of the Active system of work that there be an observer appointed when trees were being cut from an EWP: evidence of Mr Brady. The system of communication used by the workers was that of Active and had been taught by Active to Mr Robin. If an observer was not appointed, Active's SWMS document was not complied with. Active needed to enforce this requirement not merely stipulate it and ignore whether it was complied with. The mere appointment of Mr Moffett as leading hand was not enough - Mr Brady was in charge of ensuring the SWMS was complied with by appointing an observer or ensuring one was appointed. Any failure of Mr Moffett to appoint an observer was a failure by Active to ensure compliance with its own system of work; 4. Mr Brady had the authority to exercise control over the worksite where Mr Moffett and Mr Robin worked and thus the crew. Ensuring compliance with the SWMS document meant Active retained control of the system of work. See Also Exhibit 1D17 where Active makes a clear concession: submissions paragraphs 14-15; 5. Mr Robin is thus an employee and entitled to the benefit of an indemnity under s 3 of the Employees Liability Act and is not obliged to indemnify Active. Mr Robin's cross-claim against Active for an indemnity against Mr Moffett's claims must succeed. Active's claim for an indemnity against Mr Robin must fail; 6. Active's submissions as to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) are wrong. "Damage" is different to "damages': written submissions paragraphs 19-20. In addition, the 1946 Act applied if damages were to be assessed under the WCA and not the CLA: oral submissions; 7. Even if Mr Robin is held to be an independent contractor and not an employee, Active is vicariously liable for any negligence of Mr Robin: written submissions paragraphs 22-25. Active should indemnify Mr Robin under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) to the extent of 100%. This results in Active's cross-claim against Mr Robin being dismissed: written submissions paragraphs 26-32; 8. WFI's submissions support that Mr Moffett is a "worker" The submissions also support the contention that Mr Robin is a "worker" and entitled to the benefit of an indemnity under s 3 of the Employees Liability Act or s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (including as to costs); 9. The risk to Mr Moffett was an "obvious risk" under the CLA, if it applied.

Credit and reliability of the witnesses

There are a number of disputed factual matters in the case which need to be determined by the court. Questions of the credit and reliability of various witnesses who gave evidence need to be addressed.
The accident occurred on 25 November 2013, over seven years ago. There are a number of contemporaneous documents including the Injury Investigation Reports, the medical records from when the plaintiff attended hospital and his general practitioners and some other documents near the date of the accident including radiological investigations reports.
In my view, in general terms, matters of credit are not significant in determining the factual issues in dispute in these proceedings. All the witnesses who gave oral evidence appeared to me overall to give their evidence honestly and made concessions where appropriate. Some of the recollections of witnesses were better than others. Having regard to the time that has passed, it is to be expected that there would be differences in the recollections of witnesses. Some of the matters in dispute turn on conversations of which there are no records. In my view, the memories of some of the witnesses were influenced by their perceptions as to what should have occurred or on the basis of reconstruction. As is always the case, it is important to consider the different versions of conversations in the context of any independent evidence or contemporary documents which indicate that one version is more likely than the other. The apparent logic of events in the light of established facts is also relevant.
In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [31], the majority of the High Court stated as follows: "Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical."
In relation to conversations which occurred many years ago, some caution should be exercised in relation to evidence as to the conversations. See the comments made by Justice McLelland, CJ in Equity, in Watson v Foxman (1995) 49 NSWLR 315 at 319.
A vigorous attack was made by the defendants on the credit of the plaintiff. Generally, I thought that the plaintiff was a witness of truth who made concessions where appropriate. However, on occasions I have not accepted his evidence. This is not because I believe he was dishonest but because I preferred other evidence, particularly taking into account the time that has passed since the accident and the likelihood of the different evidence being more accurate. This conclusion also applies to the issue as to whether the plaintiff had been appointed a leading hand by Mr Brady as to which several witnesses gave evidence.
In the light of the matters I have noted, I turn to consider my factual findings in the matter.

Whether the plaintiff and Mr Robin had contracts of service or were independent contractors with contracts for services with Active for personal injury purposes. Whether Active was otherwise vicariously liable for the acts of Mr Robin

I now turn to consider whether the plaintiff is a "worker" under the WIM Act and also whether Mr Robin was a "worker" and thus an employee of Active as at the day of the accident. I also consider whether the second defendant is vicariously liable for the acts and omissions of the first defendant in the event I am wrong about the plaintiff being a "worker" or a "deemed worker" under the statutory definition.
In Colonial Mutual Life Assurance Society Limited v Producers and Citizens Co-operative Insurance Co of Australia Limited [1931] HCA 53; (1931) 46 CLR 41, Dixon J considered the differences between employers/employees and principals/independent contractors. His Honour stated at page 48 in relation to an independent contractor the following: "[t]he work, although done at [the principal's] request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal."
This statement has been followed in later cases: see for example Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 329-330.
In Humberstone v Northern Timber Mills (1949) 79 CLR 389, the High Court stated that in that case the plaintiff truck driver had for 12 or 14 years, with only occasional exceptions, done work only for the respondent firm: at 395. Latham CJ stated as follows at 396: "The distinction between a servant and an independent contractor was explained in the case of Performing Right Society, Ltd. v. Mitchell & Booker (Palais de Danse) Ltd. (1924) 1 KB 762 . If the work done by one person for another is done subject to the control and direction of the latter person as to the manner in which it is to be done the worker is a servant and not an independent contractor. If, however, the person doing the work agrees only to produce a given result but is not subject to control in the actual execution of the work he is an independent contractor."
Rich J found that the facts of the case led "to the failure to establish that the firm had such control of the acts of the deceased as would constitute the relation of master and servant": page 399.
Dixon J stated as follows: "The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter's order and directions. In the present case the contract by the deceased was to provide not merely his own labour but the use of heavy mechanical transport, driven by power, which he maintained and fuelled for the purpose. … The essence of a contract of service is the supply of the work and skill of a man. But the emphasis in the case of the present contract is upon mechanical traction. This was to be done by his own property in his own possession and control. There is no ground for imputing to the parties a common intention that in all the management and control of his own vehicle, in all the ways in which he used it for the purpose of carrying their goods, he should be subject to the commands of the respondents": at pages 404-405.
Similar principles were stated by the Privy Council in AMP Society v Chaplin (1978) 18 ALR 385 where their Lordships emphasised the importance of the possession by the alleged employer of the power to control the manner of doing the work by the alleged employee (there a person conducting an agency): at page 390. Lord Fraser noted at page 390 in the context of an agreement between the parties, that there was no reason to think that a clause stating expressly that the relationship was principal and agent and not master and servant was a sham or was not a genuine statement of the parties' intentions but it had to be considered in the context of the entire agreement and the relationship as a whole.
In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Mason J (with whom Brennan and Deane JJ agreed (see at pages 47 and 49)) stated at page 24 that the existence of control, whilst, significant "is not the sole criterion by which to gauge whether the relationship is one of employment". It is only one indicia of employment which must be considered in the determination of the issue. The right to exercise control as opposed to its actual exercise is particularly significant: per Mason J at 24. The fact that a person has very considerable autonomy in the performance of their contractual obligations does not necessarily negate the existence of an employment relationship: Dental Corporation Pty Ltd v Moffet [2020] FCAFC 118 at [36].
In Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21, the majority of the High Court stated as follows, after quoting Dixon J in the Colonial Mutual Life Assurance Society case which I have referred to above: "40. This statement merits close attention. It indicates that employees and independent contractors perform work for the benefit of their employers and principals respectively. Thus, by itself, the circumstance that the business enterprise of a party said to be an employer is benefited by the activities of the person in question cannot be a sufficient indication that this person is an employee. However, Dixon J fixed upon the absence of representation and of identification with the alleged employer as indicative of a relationship of principal and independent contractor. These notions later were expressed positively by Windeyer J in Marshall v Whittaker's Building Supply Co. His Honour said that the distinction between an employee and an independent contractor is "rooted fundamentally in the difference between a person who serves his employer in his, the employer's, business, and a person who carries on a trade or business of his own". In Northern Sandblasting, McHugh J said: "The rationale for excluding liability for independent contractors is that the work which the contractor has agreed to do is not done as the representative of the employer." … 42. In general, under contemporary Australian conditions, the conduct by the defendant of an enterprise in which persons are identified as representing that enterprise should carry an obligation to third persons to bear the cost of injury or damage to them which may fairly be said to be characteristic of the conduct of that enterprise. In delivering the judgment of the Supreme Court of Canada in Bazley v Curry, McLachlin J said of such cases that "the employer's enterprise [has] created the risk that produced the tortious act" and the employer must bear responsibility for it. McLachlin J termed this risk "enterprise risk" and said that "where the employee's conduct is closely tied to a risk that the employer's enterprise has placed in the community, the employer may justly be held vicariously liable for the employee's wrong". Earlier, in Ira S Bushey & Sons, Inc v United States, Judge Friendly had said that the doctrine of respondeat superior rests: "in a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities". "Control" 43. These notions also influence the meaning to be given today to "control" as a discrimen between employees and independent contractors. In Stevens v Brodribb Sawmilling Co Pty Ltd, the Court was adjusting the notion of "control" to circumstances of contemporary life and, in doing so, continued the developments in Zuijs v Wirth Brothers Pty Ltd and Humberstone v Northern Timber Mills. In Humberstone, Dixon J observed that the regulation of industrial conditions and other statutes had made more difficult of application the classic test, whether the contract placed the supposed employee subject to the command of the employer. Moreover, as has been pointed out: "The control test was the product of a predominantly agricultural society. It was first devised in an age untroubled by the complexities of a modern industrial society placing its accent on the division of functions and extreme specialisation. At the time when the courts first formulated the distinction between employees and independent contractors by reference to the test of control, an employer could be expected to know as much about the job as his employee. Moreover, the employer would usually work with the employee and the test of control and supervision was then a real one to distinguish between the employee and the independent contractor. With the invention and growth of the limited liability company and the great advances of science and technology, the conditions which gave rise to the control test largely disappeared. Moreover, with the advent into industry of professional men and other occupations performing services which by their nature could not be subject to supervision, the distinction between employees and independent contractors often seemed a vague one." 44. It was against that background that in Brodribb Mason J said that, whilst these criticisms might readily be acknowledged: "the common law has been sufficiently flexible to adapt to changing social conditions by shifting the emphasis in the control test from the actual exercise of control to the right to exercise it, 'so far as there is scope for it', even if it be 'only in incidental or collateral matters': Zuijs v Wirth Brothers Pty Ltd. Furthermore, control is not now regarded as the only relevant factor. Rather it is the totality of the relationship between the parties which must be considered." 45. So it is that, in the present case, guidance for the outcome is provided by various matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability. These include, but are not confined to, what now is considered "control"."
In Hallmark Construction Pty Ltd v Brett Harford [2020] NSWCA 41 Basten JA (with whom Meagher JA and Emmett AJA agreed) stated as follows at paragraphs 85-87: 85. The importance of having regard to all the circumstances of the case is clear from the reasoning of the High Court in Hollis v Vabu Pty Ltd. The question in that case was whether a courier business which engaged individuals to deliver articles by bicycle was vicariously liable for the negligent act of an individual bicycle courier. The majority held that the company was vicariously liable. The joint reasons stated: "[46] The matters of policy which Callinan J mentions in his reasons might be significant in evidentiary circumstances which differed from those of this case, and which might disclose a different relationship between the parties in respect of whom vicarious liability is postulated. However, considerations respecting economic independence and freedom of contract are not, with respect, determinative of the legal character of the relationship between the bicycle courier and Vabu as disclosed by the evidence. [47] In classifying the bicycle couriers as independent contractors, the Court of Appeal fell into error in making too much of the circumstances that the bicycle couriers owned their own bicycles, bore the expenses of running them and supplied many of their own accessories. Viewed as a practical matter, the bicycle couriers were not running their own business or enterprise, nor did they have independence in the conduct of their operations. A different conclusion might, for example, be appropriate where the investment in capital equipment was more significant, and greater skill and training were required to operate it. The case does not deal with situations of that character. The concern here is with the bicycle couriers engaged on Vabu's business. A consideration of the nature of their engagement, as evidenced by the documents to which reference has been made and by the work practices imposed by Vabu, indicates that they were employees." 86. The judgment took account of seven considerations which pointed to an employment relationship. These included (i) that the couriers were not providing skilled labour; (ii) the couriers had little control of the manner of performing their work, or the times at which it was to be performed; (iii) they were presented to the public wearing uniforms bearing the company's logo; (iv) apparently as an element of capacity to control, the importance of deterrence of future harm; (v) the company's control by superintendence of the financial situation of each courier; (vi) the relatively small capital outlay required of individual couriers and the provision of part of the equipment by the company, and (vii) the practical exercise of control over the work of each individual. 87. As explained by Leeming JA in Day v Ocean Beach Hotel, the principle of vicarious liability under the general law may be articulated by reference to a "general rule", namely that an employer is vicariously liable for the negligence of its employee undertaken in the course of the employment, but not for the negligent conduct of an independent contractor. The "general rule" is better identified as a legal principle which may be, and is, subject to exceptions and qualifications. That was explained by Leeming JA in Day in the following terms: "[15] The nature of that 'general rule' and 'central conception' is reflected in three qualifications to it. First, the labels 'employer' and 'employee' and 'principal' and 'independent contractor' are merely that. The classification does not of itself determine the legal conclusion that there is or is not vicarious liability, or, as the joint judgment in Hollis put it at [36], those terms 'do not necessarily display their legal content purely by virtue of their semantic meaning'. To do so would be, to use Windeyer J's words in Brooks v Burns Philp Trustee Co Ltd [1969] HCA 4; (1969) 121 CLR 432 at 458, 'to invert the order of inquiry' and to 'allow linguistics to determine legal rights'. The real question is whether the 'fundamental concerns underlying the doctrine of vicarious liability', one of which is control, are established: Hollis at [45]. The second, which is a corollary of the first, is that a conclusion that a person is an 'employee' or 'independent contractor' for a particular purpose (such as payroll tax, or superannuation, or employment law) cannot determine whether the relationship is such as to engage the rules of vicarious liability (the different outcome in Vabu Pty Ltd v Federal Commissioner of Taxation (1996) 33 ATR 537 illustrates as much). The third is that there are exceptions to the 'general rule', which reflect the fundamental concerns underlying the doctrine. One is where an independent contractor is expressly authorised to commit the tortious conduct. Another is exemplified by [CML] where it was held that a principal was liable for the slanders uttered by an independent contractor, Mr Ridley, with authority on behalf of his principal to solicit proposals for insurance and collect deposits, even where the principal had expressly forbidden disparaging statements of the very nature made by him. Relevantly for the purposes of resolving this appeal, it is clear that the decision in CML is to be understood as was explained in Sweeney at [14]-[19]."
The principles which emerge from these authorities appear to be as follows: 1. The labels "employer" and "employee" and "principal" and "independent contractor" are merely that. The classification does not of itself determine the legal conclusion that there is or is not vicarious liability. Otherwise this would allow linguistics to determine legal rights. 2. It is important to have regard to all the circumstances of the case to determine whether a plaintiff is an employee or an independent contractor. This is also relevant to whether the defendant is liable for vicarious liability. 3. The fact that the plaintiff used their own equipment is relevant (Humberstone) but not decisive (Hollis), particularly if the alleged employer's equipment is expensive and substantial. 4. The fact that the plaintiff carried the expenses of running and maintaining some equipment is relevant (Humberstone) but not decisive (Hollis). 5. Of relevance is whether the plaintiff is running his or her own business or enterprise. Also relevant is whether the plaintiff has independence in the conduct of their operations. 6. The fact a person has very considerable autonomy in the performance of their contractual obligations does not necessarily negate an employment relationship. 7. Whether the plaintiff was providing skilled labour is relevant. 8. Whether the plaintiff has control of the manner of performing their work or the times at which it was to be performed are relevant. 9. Whether the alleged employee is presented to the public wearing uniforms bearing the company's logo is relevant. 10. Whether a relatively small capital outlay is required of the alleged employee is relevant. 11. A conclusion that a person is an "employee" or "independent contractor" for a particular purpose (such as payroll tax, superannuation or employment law) cannot determine whether the relationship is such to engage the rules of vicarious liability. 12. Control by the alleged employer is important, including the practical exercise of control over the work of the alleged employee. 13. A party may also be vicariously liable for the acts of an independent contractor in certain limited circumstances.
The question therefore is whether Mr Moffett or Mr Robin or both had contracts of service with Active or Active is otherwise vicariously liable for any negligent acts of Mr Robin.
The plaintiff asserts that Mr Moffett was an independent contractor, not an employee of Active with a contract of service. A different submission is made in relation to Mr Robin. The difference in the submission appears to be based on the fact that Mr Robin did not undertake contract work for persons other than Active.
No written contract in relation to services was in evidence regarding Mr Moffett or Mr Robin. It seems any contracts were oral in nature. This is different to AMP v Chaplin, above. Both men commenced work for Active in 2012 after a break or working for Active in other areas. It therefore seems the contractual arrangements made in 2012 are the relevant ones. This appeared to be accepted by all parties in final submissions.
Although Mr Moffett had previously worked undertaking tree work for Active for many years, his evidence was that for a number of years he received no work from Active but undertook work principally for Mr Ellis at Superior Trees. His evidence was that in 2012 he was contacted by Mr Alan Brady from Active and offered work: T32.22-T33.31. At T33.30 Mr Moffett said that Mr Brady, the supervisor for Active for the Central Coast/Hunter region, "offered [him] a couple of weeks' work, which turned into years' work". There was also an agreement that Mr Moffett was to be paid on a day rate: T34.14. GST was added: T34.20. There thus seems to have been an oral contract between the plaintiff and Mr Brady on behalf of Active in 2012 to pay the plaintiff for work completed as directed on a daily basis. Directions were then given in relation to particular days or periods of work and invoices were rendered by the plaintiff to Mr Brady of Active at the end of each month: T34.40.
Mr Robin seemed to have had a similar oral arrangement with Active from 2012. He did work from 2008 for Active in the mid-North Coast: T542.22. In 2012, Mr Robin moved to the Central Coast and obtained work from Mr Brady at Active: T544.44-T545.45. Again, there is no evidence of a written contract between Active and Mr Robin. It seems again that there was an oral contract probably made in 2012 between Mr Robin and Active for Active to pay Mr Robin on a daily rate (T544.32) for work completed by him as directed by Active.
As stated above, it is clearly established by appellate authority that merely because someone is described as an employee or as an independent contractor is not conclusive as to their true status in law including for vicarious liability purposes. Otherwise, linguistics would be allowed to determine legal rights. All the circumstances of the case must be examined to determine whether a plaintiff or in this case Mr Robin is an employee or an independent contractor for liability purposes.
The plaintiff submits he was a true independent contractor and not an employee of Active. The first defendant submits that the plaintiff but particularly Mr Robin was an employee and a "worker" under the WIM. The second defendant pleads that the plaintiff was an employee or a deemed worker under the WIM (but, it seems, Mr Robin was not an employee). The cross-defendant submits Mr Moffett was an employee with a contract of service. In addition, the first defendant submits that he was an employee of Active under a contract of service or Active is otherwise vicariously liable for any negligence committed by him which caused any injury to the plaintiff.
Counsel for the plaintiff made the following general submissions: 1. In relation to the exercise of the right of control, while the contracted works being undertaken were those of Active with the Port Stephens Shire Council, Active was conspicuously absent on the day of the subcontracted works. Control was not exercised by Active; 2. The assessment of the contracted work was done by the servants of Active. The evidence is that the plaintiff's services, co-ordinated with other contractors, occurred on a case-by-case basis, through Active. The plaintiff was told of the site and work by text messages from Active; 3. While the work was quoted for the customer by Active, the method of work, the men arranged and the use of plant, was not supervised, controlled or directed by Active; 4. The plaintiff, along with the other contractors, was not provided with means of communication on site with Active or supervised by Active in the system of work. Active did not have communication with, or between, the plaintiff and the other men on site; 5. The servants of Active did not attend the site, nor direct a system that the men on the site would use. They simply directed, independently of the plaintiff, the convergence of various men and plant to the site of the contracted work. This submission, as discussed below, is inconsistent with the evidence of the plaintiff and Mr Robin as to the attendance of Mr Brady of Active and direction as to the scope of works to be performed; 6. The invoicing of the plaintiff and Mr Robin evidences the payment of daily contracted rates plus GST. There is no evidence that Active demanded any time limit for the work. The terms of quotation and contract between Active and the customer are unknown to the plaintiff; 7. The system of work was reliant on the experience of the plaintiff and the other men on site even though the area was a workplace under the control of Active and the subcontractors; 8. While the plaintiff had regular contracts with Active, he was not exclusively bound to this work. He had other work, using his business name and had advertised (including in the Port Stephens' area). The plaintiff's work with Active was larger contracts which would allow the plaintiff to do other smaller work; 9. The plaintiff bought his own tools, equipment and vehicle. He effected his own insurance and deducted the operating expenses of his business; 10. GST was added to the invoicing; 11. The servants of Active delegated the contracted work to the plaintiff, Mr Robin and others. Although it was submitted that no servant of Active attended the site on the day of the incident this is contrary to the evidence of the plaintiff and Mr Robin who said Mr Brady attended on the day of the incident (this evidence was not preferred); 12. The plaintiff had his own liability insurance, including income protection insurance. This was a condition of his engagement by Active; 13. There is no contest that the plaintiff bought his own tools, fuel and safety equipment. Limited equipment was supplied by Active; 14. Active did provide plant; 15. There were no routine directives by Active. Active routinely left the men to their systems and they had latitude both as to time, place and performance of the desired works.
A number of the matters put forward on behalf of the plaintiff are clearly established by the evidence: 1. The plaintiff and Mr Robin registered Australian Business Names; 2. Invoices were issued to Active in the names of the businesses. Some invoices of Mr Robin included GST and others did not; 3. Mr Moffett effected his own insurance; 4. Mr Moffett had a business card and had advertised at various stages; 5. Mr Robin and Mr Moffett provided some tools, utility vehicles and safety equipment such as helmets, eye protection gear and harnesses.
See also paragraphs 100-117 of Active's written submissions dated 15 March 2021 in relation to Mr Robin's circumstances.
However, other matters were also relevant to their work for Active.
These included the following: 1. The work completed by the plaintiff and Mr Robin was completed at Active's request and for its benefit. Mr Brady as a representative of Active, identified the work and the location and time where and when the workers had to attend. The commencement time or location was not at the workers' choosing. Active paid the plaintiff and Mr Robin and charged its client for the work completed; 2. The work completed by the plaintiff and Mr Robin was subject to a degree of practical control and direction by Mr Brady for Active, including as to the manner of achieving a result. There was no agreement merely to produce a result of a certain reduction in tree branches or foliage. Mr Brady gave directions as to what was to occur including as to specific trees. The location and commencement time were determined by Active. The "SWMS" document, prepared by Active, sought to direct in great detail the manner and system of doing the work. There was, it seems, a right to exercise control over what was undertaken and completed even if it was "only in incidental or collateral matters" (Mason J in Stevens v Brodribb at page 29); 3. The plaintiff and Mr Robin were, in a practical way, subject to Mr Brady's orders and directions. There was no requirement of them to provide heavy equipment, maintained and fuelled by the plaintiff or Mr Robin as in Humberstone, above. Active supplied all heavy, expensive equipment and maintained it. In substance, there was the provision of work and skill by the plaintiff and Mr Robin, not heavy and expensive equipment (although some lesser equipment was maintained and supplied by them); 4. Mr Robin had only undertaken tree work for Active at all relevant times. He had worked relevantly for no other client. He had a business name but never advertised for work. I accept his evidence on these issues; 5. The plaintiff had only occasionally completed paid work for others particularly from 2012 when he undertook work for Active on the Central Coast. His regular and overwhelming principal source of work was with Active, particularly in 2013; 6. There are many indications that the plaintiff and Mr Robin were, in a practical sense, representatives of and identified with Active (see Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119 at [224]-[225]): 1. Mr Robin's various forms of identification in relation to Active: Exhibit 1D16; 2. The wearing of the various forms of Active logos on supplied clothing from Active to Mr Moffett and Mr Robin. These were worn on the day of the accident; 3. The driving and use of heavy vehicles with Active's logos on them. The equipment used which was supplied by Mr Moffett and Mr Robin was much less valuable and was similar to tools of trade of a tradesman; 4. The use of the Active logo magnet on toolboxes; 5. The absence of use of the business names of the businesses of Mr Moffett and Mr Robin on their work equipment items (except invoices); 6. The taking of the truck/chipper and EWP home on various occasions by Mr Wells and Mr Wellings; 7. The fact that although Mr Robin set up Waratah Tree Services he in fact acted for no other clients and did not advertise. He worked full-time for Active; 8. The plaintiff did have a business and advertised but not often and irregularly at least from 2012; 1. The appointment by Active of the plaintiff as either a leading hand or at least the person to notify the crew of the tasks and to complete forms and run the toolbox meetings: see T38.39; T566.25; T566.44; T567.20; T568.32; T570.50 cf T143.8 and T156.32; 2. The absence of any ongoing Active supervision at the site after the presence of Mr Brady on 22 November 2013; 3. The fact the plaintiff and Mr Robin owned and maintained some equipment used is not decisive: Hollis v Vabu, above; 4. As a practical matter, the plaintiff and Mr Robin did not have practical independence as they were relying on the directions of Mr Brady as to the scope of work; 5. There was not a substantial investment in capital by Mr Moffett or Mr Robin. The purchase of a utility by Mr Moffett was a means to travel to and from work carrying tools and relevant clothing; 6. The plaintiff was not providing highly skilled labour. Mr Robin was providing labour which was skilled and his job was arduous and dangerous. Mr Moffett had some skills in relation to trees and chainsaws; 7. The plaintiff and Mr Robin had no real control of the work to be performed or the times at which it was to be performed. They were told to turn up at a certain location at a certain time and were provided the heavy equipment to do the work as directed. They either agreed to do the work and turned up to complete it at the appointed time or they declined the work. Mr Robin did have some control over how the work was to be conducted and the speed of the work but that was equally applicable to an employee; 8. There was a capacity in Active to control the issuing of directions and the SWMS to deter future harm through indicating the roles of various persons on the worksite; 9. The holding of insurance by Mr Moffett; 10. There was no direct control of the financial position of the plaintiff and Mr Robin other than through withholding future jobs. This tends to suggest more an independent contractor; 11. There was a relatively small capital outlay by Mr Moffett and Mr Robin compared to the provision of expensive heavy equipment by Active.
After taking into account all of these matters, in my view the clear balance of factors establishes that Mr Moffett and Mr Robin in relation to the work performed for Active in 2013 were not independent contractors for liability purposes but had contracts of service with Active. Accordingly, there would be vicarious liability in Active for any negligent acts of Mr Robin. Similarly, as both were operating under a contract of service with Active, they were thus workers under the WIM Act.
The more significant factors in my view leading to this conclusion are: 1. The use of Active logos on supplied clothing worn, on toolboxes and on heavy equipment. Mr Moffett and Mr Robin were effectively working as representatives of Active; 2. The supply and maintenance by Active of the expensive heavy equipment used in the work undertaken by them; 3. The directions as to the scope of work to be undertaken supplied by Mr Brady including on the Friday before the accident. There was thus a degree of control by Active over the worksite. See also Exhibit 1D17 which is consistent with Mr Brady's evidence; 4. The issue of the "SWMS" documents and their availability in the chipper truck to workers. These directed in great detail the Active method of work to be used by the work crew. This was thus a further assertion of control by Active over the system of work; 5. The limited equipment capital outlay by Mr Moffett and Mr Robin compared to the capital costs of the equipment supplied by Active: see WFI submissions dated 22 March 2021 paragraph 18 (p)-(r); 6. The direction by Active to Mr Moffett and Mr Robin to turn up to a particular location at a particular time for work. The workers did not stipulate the time they would be available and the time the work would be commenced by them; 7. The role of Mr Moffett as the leading hand or senior hand in completing forms and supervising the toolbox meeting and informing the crew of the scope of work; 8. The fact the work involved required some skills and was physically taxing but was not highly skilled; 9. The fact workers in the team drove the heavy vehicles to and from the work site on many occasions.
See also the indicia referred to in paragraphs 41-42 of Mr Robin's written submissions dated 8 March 2021. I accept Mr Robin's reply submission that if Mr Moffett was a "worker" then the relevant indicia also lead to the conclusion that Mr Robin was a "worker".
This conclusion in relation to Mr Moffett and Mr Robin must be taken into account in assessing the causes of action between the plaintiff and the defendants and between each of the defendants: see for example paragraph 15 of the Third Further Amended Defence of the first defendant filed on 11 June 2020 and the cross-claims.
The factors support the finding which I make that Mr Moffett and Mr Robin, on balance, had contracts of service with Active and were workers of Active within the WIM Act. In my view, this finding in relation to Mr Robin prevents the plaintiff's claim against him under the CLA. That is because the claim should be brought under the WCA for work injury damages not under the CLA even though the claim is brought against Mr Robin. Active would prima facie be vicariously liable for any negligence of Mr Robin: see s 150 of the WCA and ss 4, 250(2) and 311-15 of the WIM Act.
I proceed to consider other issues raised in the case in the event I am in error that the plaintiff is a "deemed worker" or "worker" in relation to Active and the claim against Mr Robin seeks work injury damages which should be brought under the WCA and in compliance with the procedural requirements in the WIM Act.
The decision in Hallmark, above, made clear that an entity could be vicariously liable for the act or omission causing personal injuries of an independent contractor properly so called, that is a person who was not an employee of the entity: see at [87]. On the assumption that I am in error in my findings above and Mr Robin was an independent contractor, then in my view Active is still vicariously liable for his acts and omissions in the present case. First, Active had the power to exercise control over the site. It determined who was permitted to do the work at the site; when they commenced; it determined the scope of works including how the trees were to be cut; it appointed the leading hand; it determined the system of work to be used as set out in the SWMS document; it required Active clothing to be worn so that crew appeared to be part of the Active workforce. Secondly, there are exceptions to the general rule than an entity is not vicariously liable for an independent contractor. One is the authorisation of the act or omission causing the harm - here the direction to perform the scope of works without ensuring that an observer was appointed in accordance with Active's own system of work during the times that trees were cut.

"Deemed worker" - principles and application to the facts

Whether the plaintiff is a "deemed worker" if he is not a "worker" will now be considered.
In the present case, the following is the position on the evidence: 1. The evidence establishes that an oral contract was made between the plaintiff and the second defendant in 2012 relating to the performance by the plaintiff of work for the second defendant Active. See T33.3; T33.17-T34.48; T336.37. Although the plaintiff had previously worked for Active, he worked for a number of years principally for another person before being approached by Mr Brady in 2012 on behalf of Active to perform work for Active on rates agreed with Mr Brady on behalf of Active. Although the evidence is not detailed on the point, it appears that a new contract was entered orally between the plaintiff and Active in 2012 for Mr Moffett to perform work for Active at specified rates at specified locations and times as directed. Even if the relevant contract entered into was that in 1998 (T28.41-T29.25) (which does not appear to be the case), the plaintiff performed other work for third persons irregularly and only occasionally whilst working primarily for Active: T29.35; T31.25 cf whilst working for Superior Trees: T32-33; 2. The invoices in evidence issued by Mr Moffett under his business name establish that the work performed by the plaintiff for the second defendant under the contract agreed exceeded $10 in value: see for example Exhibit E. Also, Mr Moffett had worked a number of hours before he was injured on the relevant day in question. This work would have been clearly worth more than $10. The value of the contract is also established by the deposits by Active into Mr Moffett's bank account: see Exhibit 2D5, Annexure N, especially at page 81; 3. In my view, on the evidence the work performed at the time of the accident by Mr Moffett under his business name was not "incidental to a trade or business regularly carried on by the [plaintiff as] contractor in [his] own name, or under a business or firm name". The plaintiff did perform his work himself and he invoiced for that work under a business name. The plaintiff had performed work for other persons at various times under this name: T29.35; T31.25. However, on the evidence, from 2012 work was not performed by the plaintiff "regularly" under the business name except for Active. The relationship between Mr Moffett and Active was special and particular from any general trade or business carried on by Mr Moffett. The plaintiff's banking records do not reveal banked proceeds from other work for third parties in the period before the accident from February 2013 to 25 November 2013: See T410.16-.46 which is more specific to T408.27. The relevant part of the section should be regarded as referring to work "regularly" performed for persons other than the person claimed to have the contract with the alleged deemed worker. In effect, Mr Moffett did not carry on his business at the time "systematically"; 4. Mr Moffett performed all the work himself for the second defendant. He did not sublet the contract nor employ any other worker to perform the work: T407.38-.50; 5. Accordingly, for the purposes of the WIM Act, Mr Moffett is deemed to be a "worker" employed by the second defendant.
The exclusion in section 2 of Schedule 1 of the WIM relating to the definition of "worker" in s 4(1) of the WIM in sub-paragraph (d) is not applicable.
I also note s 2A of the WCA which indicates the interrelationship between the WCA and the WIM. Section 2A provided as follows: "2A Relationship to Workplace Injury Management and Workers Compensation Act 1998 (1) The Workplace Injury Management and Workers Compensation Act 1998 is referred to in this Act as the 1998 Act. (2) This Act is to be construed with, and as if it formed part of, the 1998 Act. Accordingly, a reference in this Act to this Act includes a reference to the 1998 Act. (3) In the event of an inconsistency between this Act and the 1998 Act, the 1998 Act prevails to the extent of the inconsistency."
In Humberstone v Northern Timber Mills (1949) 79 CLR 389 at pages 401-402 Dixon J stated as follows: "8. In my opinion the work which the deceased was performing for the respondents was not work incidental to a trade or business regularly carried on by him in his own name within the meaning of the sub-section and of course no such trade or business was carried on by him under a firm or business name. I think that the purpose of the exception or exclusion expressed by the words in question was 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 firm or business 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 provision will thus cover men who work for the principal but have no independent business or trade and men who though carrying on an independent trade or business undertake a contract outside the scope or course of that trade or business. The word "trade" is capable of including any handicraft and in that sense it may seem to lack the element of systematic practice or holding out which the idea of openly conducting a distinct or independent trade or business and seeking custom implies. But a consideration of the policy of the provision as well as of its text appears to me to show that the distinction it seeks to draw is between on the one hand an independent contractor whose relation with the principal is special or particular either because it is outside the course of the general business of the contractor or the general practice of his trade or because he has no such general business or is not a general practitioner of his trade, and on the other hand an independent contractor who performs work successively or perhaps concurrently for his customers or others in the course of a definite trade or business carried on systematically or who holds himself out as ready to do so." (emphasis added)
In Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 the High Court followed the statement of principle by Dixon J in Humberstone: at page 574.
Later cases have also followed this analysis by Dixon J: Davis v Pioneer Concrete (NSW) Pty Ltd [1976] 1 NSWLR 562 is an example.
In Higgins v Jackson (1976) 135 CLR 174, Barwick CJ for the majority stated as follows at page 176: "It is sufficient, in my opinion, that the contractor does in fact carry on an independent business under his own or a firm name. No doubt a person who does so may become known as doing so. The sub-section requires the business to be carried on with regularity. Thus a contractor who regularly contracts can scarcely be said not to hold himself out as carrying on the business in the course of which he makes the contracts. But, in my opinion, there is no separate element required by the sub-section of holding out. It is sufficient, as I have said, that the contractor regularly carries on business in his own or a firm name." (emphasis added)
See also the comments of Reynolds JA in the Court of Appeal: [1974] 1 NSWLR 9 at 13D-E.
In my view, and I find, the evidence establishes that at the time of the accident the plaintiff did not regularly carry on business in his own or under a business or firm name. The evidence establishes that at times the plaintiff may have occasionally done other work for third parties under his business name but his primary and overwhelming source of work was with the second defendant attending jobs as directed by Mr Brady and others under his general supervision. In substance, the plaintiff had a special and distinct arrangement with Active within Dixon J's statement in Humberstone and billed Active for work performed for Active which was by far his principal source of money and work. He may have billed Active in a business name, but essentially Active was his overwhelming source of full-time work. Other jobs under his business name were merely exceptional and occasional and on the evidence irregular: T410.46. No work for others under the business was performed by the plaintiff between February 2013 and November 2013, a substantial period prior to the accident. In this period, the evidence shows that he worked for Active exclusively. In the period prior to this but from 2012, receipts of fees from other persons for occasional work were irregular on Mr Moffett's bank records: see Exhibit 2D5, the bank records at pages 97-134.
Accordingly, in my view the work performed for Active by the plaintiff was not incidental to a trade or business regularly carried on by the contractor in the contractor's name. If I am wrong in relation to the plaintiff being a "worker" within s 4 of the WIM Act, the plaintiff is thus a "deemed worker". I accept the submissions of the second defendant that the consequence of this conclusion is that the plaintiff is not entitled to recover damages directly against the second defendant under the CLA: see Ebb v Fast Fix Steel Fixing Pty Ltd [2007] NSWCA 236 at [59] per Basten JA (with whom Santow JA and Hislop J agreed). It has not been established that the plaintiff has satisfied the various pre-litigation provisions under the WCA and WIM to pursue a claim for modified work injury damages. There is no evidence the plaintiff has satisfied the 15% whole person impairment threshold under s 151H of the WCA or satisfied ss 315 and 318A of the WIM. Under s 313 of the WIM Act, a person cannot commence court proceedings without an assessment by a medical assessor where there is a dispute as to whether the plaintiff has satisfied the 15% whole person impairment threshold. There was such a dispute in the present case.
The plaintiff's claim under the CLA against the second defendant must therefore fail.
Similar factual matters support the conclusion that Mr Robin was also a "deemed worker" under the WIM Act of Active if he was not a "worker". I accept paragraph 42 of the first defendant's written submissions dated 8 March 2021. Mr Robin also entered into a similar oral contract with Active in 2012 to provide his services. Although he had registered a business name, the evidence established that from 2012 he only performed work for Active. He thus did not carry on a business regularly. I accept Mr Robin's evidence that he did not advertise for work from third parties in the period 2012-2013. The contract between Mr Robin and Active was clearly for work which exceeded $10 in value. There is no evidence that Mr Robin sub-let his work or employed another worker. The evidence of Mr Robin's work history with Active, particularly with Mr Moffett, is to the contrary. The requirements of the definition would thus be satisfied in relation to Mr Robin also. This is relevant to the assertion of an overlap between the requirements of a "worker" and "deemed worker" in Mr Robin's submissions: see paragraph 12 of Mr Robin's reply submissions dated 29 March 2021.

Was there a breach of the duty of care owed by Mr Robin to Mr Moffett?

The measure of the discharge of Mr Robin's duty of care owed to Mr Moffett is what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk.
What a reasonable person would have done in response to the foreseeable risk must be considered prospectively not retrospectively and subject, on the case pleaded, to the restrictions in ss 5B and 5C of the CLA, assuming it was applicable. Section 5 of the CLA defines "negligent" as meaning a failure to exercise reasonable care and skill: see also Patrick Stevedores, above, at [49]-[51] and Lloyd v Thornbury [2019] NSWCA 154 at [44]. To determine what precautions should reasonably have been taken by Mr Robin, it is necessary to identify the risk of harm which existed to Mr Moffett in the present case: see Lloyd v Thornbury, above at [47]-[48]. It is only by correctly identifying the risk of harm that one can assess what a reasonable response to that risk should have been: RTA v Dederer (2007) 234 CLR 330 at [59]. Ordinarily, it is unnecessary and undesirable to define the relevant risk of harm with too much particularity: Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320 at [118]-[122].
In my opinion, the relevant risk of harm in the present case was that members of the ground crew at the work site may be struck and injured by falling wood or branches in the drop zone unless reasonable steps were taken by Mr Robin to communicate to ground crew members that they should not enter the drop zone before he recommenced cutting and to not commence cutting until members had left the drop zone.
In the Patrick Stevedores case, above, Leeming JA (with whom McColl JA agreed) stated that the measure of the discharge of a defendant's duty of care is what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk. The fact that there are measures that could have been taken by the defendant to divert or diminish the risk that actually materialised, does not necessarily establish breach. It is also assumed, as indicated above, that members of the ground crew would exercise reasonable care for their own safety in undertaking their duties.
Whether there was a breach of duty in the present case by Mr Robin as pleaded (see paragraphs 6, 9 and 10 of the Amended Statement of Claim), must be determined considering ss 5B and 5C of the CLA. These sections provide as follows: "Division 2 Duty of care 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless - (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) - (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence - (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."
The plaintiff submits that Mr Robin did not exercise reasonable care in the circumstances as he proceeded to commence cutting without taking reasonable steps to ensure that Mr Moffett was made aware of Mr Robin's intentions and Mr Moffett was outside the drop zone. Mr Robin submits that a reasonable person in his position having regard to the experience of Mr Moffett would have generally indicated to the ground crew that he intended to continue cutting and this was sufficient action to take.
I proceed to consider the elements in s 5B of the CLA in the light of s 5C as applied to the present case relating to Mr Moffett: 1. The risk was foreseeable, that is, it is a risk of which the defendant knew or ought to have known - in my view, the risk was clearly foreseeable, in the sense of being a risk of which Mr Robin ought to have known, that a member of the ground crew may enter the drop zone to remove branches unless that member had been indicated by Mr Robin that Mr Robin intended to proceed to cutting. When Mr Robin stopped cutting and signalled to the ground crew he realised that members in the ground crew would enter the drop zone and remove the cut branches to the chipper. He must have realised that they would continue to do this until they had finished or he had indicated to them an intention to recommence cutting. If he recommenced cutting without taking reasonable steps to signal and ensure the crew were outside the drop zone then a crew member may be struck by a branch falling in the drop zone; 2. The risk was not insignificant - the plaintiff submits that the risk in question was not insignificant. Having regard to my factual findings above, in my view the risk of someone being injured in the drop zone, unless Mr Robin took reasonable steps to ensure that the members of the ground crew were informed that he intended to proceed to cut and were outside the drop zone, was not insignificant. Mr Robin alone knew when he was going to commence cutting again. The only way of informing the ground crew that he intended to commence cutting was by means of communication which, having regard to the noise involved with the chipper, and the absence of radios, could only have been through hand signals. He needed to take reasonable steps to ensure that all crew members saw the signal and were outside the drop zone. I am not satisfied on the evidence that the revving of the pole saw was a reasonably accepted means of communication by itself; 3. Whether a reasonable person in the position of the defendant would have taken the precautions indicated - I consider this issue in the light of the evidence which I have referred to above and my factual findings that Mr Robin only saw Mr Wells and Mr Wellings before he started cutting again immediately preceding the accident but did not see Mr Moffett. He recommenced cutting even though he was aware that Mr Moffett had been involved in chipping activities earlier in the day. Put simply, Mr Robin did not take reasonable steps to determine that Mr Moffett had seen his communication of an intention to commence cutting again and was outside the drop zone before he did recommence cutting. In my view, Mr Robin clearly failed to take reasonable care to warn Mr Moffett of his intention to recommence cutting. He should not have recommenced cutting until he had done this. See paragraph 10 of the Amended Statement of Claim; 4. The probability that the harm would have occurred if care were not taken - in my view, there was a real risk that a member of the ground crew could have been injured by falling branches if reasonable care was not taken to ensure that each member of the ground crew clearly was aware that Mr Robin was intending to commence cutting again; 5. The likely seriousness of the harm - as indicated earlier, a member of the ground crew could be seriously injured or even killed if they were struck by a heavy falling branch or wood cut; 6. The burden of taking precautions to avoid the risk of harm - in my view, there was not a significant burden on Mr Robin in taking reasonable precautions to ensure that Mr Moffett also saw his signal that he intended to proceed to recommence cutting. It simply involved not commencing cutting until reasonable steps had been taken to ensure that Mr Moffett as well as Mr Wellings and Mr Wells were aware of Mr Robin's intentions; 7. The social utility of the activity that creates the risk of harm - while tree cutting and pruning is relevant and important on council owned land it is not such a significant matter as to negate or outweigh the need for reasonable warnings. There was no urgency in the cutting occurring before reasonable steps were taken; 8. The risk of injury to Mr Moffett if no signal was given to him was, on all the evidence, obvious (or should have been obvious) to Mr Robin; 9. In my view, taking into account all of the matters I have indicated, a reasonable person in the position of Mr Robin in the present case would not have proceeded to recommence cutting without taking reasonable steps to ensure that Mr Moffett, as well as Mr Wells and Mr Wellings, was informed of his intention by a hand or other non-verbal signal and was outside the drop zone. Mr Robin should have taken reasonable steps to ensure that he could see each of the three members of the ground crew being out of the drop zone before he gave the signal and commenced cutting again.
In the light of the above analysis, and even assuming that Mr Moffett would take reasonable care for his own safety, in my view there was a breach of duty of care by Mr Robin if the CLA applied to the claim against him. Mr Robin should have taken reasonable precautions to ensure that Mr Moffett saw a signal and was well out of the drop zone with the other crew members before he started cutting. He only saw Mr Wells and Mr Wellings, not Mr Moffett. He accordingly did not know where Mr Moffett was.

Active

As indicated above, for relevant purposes, Active was the occupier of the site during the cutting/pruning and had engaged the various contractors, including Mr Robin and Mr Moffett, to provide their services at the site. In paragraph 4 of the Amended Statement of Claim filed 28 June 2017, the plaintiff pleads that Active was carrying out work at the relevant premises, engaged the plaintiff as a subcontractor, and was directing and supervising the plaintiff's work in co-ordination with other workers or subcontractors including the first defendant, Mr Robin. Paragraph 6 of the Amended Statement of Claim includes the duties pleaded said to have been owed by Active to Mr Moffett including a duty to take reasonable care for the safety of the plaintiff and to otherwise take reasonable steps to ensure the plaintiff was not exposed to risks of injury of which Active knew or ought to have been aware and a duty to take reasonable care to co-ordinate the activities of subcontractors at the workplace, including Mr Robin, and to take reasonable steps to ensure the plaintiff had a safe place of work and safe system of work to carry out his duties. In paragraph 11, the particulars of negligence of Active are pleaded in fairly general terms including having a system of work which was unsafe and likely to expose the plaintiff to the risk and failing to take reasonable care to ensure precautions were used to assess, control and eliminate the risk.
In paragraph 4.18 of his report, Mr Cauduro sets out reasonable preventative measures that could, and in his opinion should, have been implemented. In the light of the evidence about the inappropriate nature of two-way radios having regard to the need for workers to use both their hands, I am not satisfied that providing the workers or Mr Robin with a two-way radio was a reasonable preventative measure at the time. I accept the submissions of Active on this issue: written submissions dated 15 March 2021, paragraph 60. Having regard to the noise which was occurring, I am also not satisfied that whistles or possibly even air powered horns would be appropriate having regard to the uncertain effectiveness of whistles and the potential for noises through air powered horns to divert the attention of drivers passing by in the vicinity. This possible precaution was not raised in the oral evidence. Safety toolbox talks appear to have been held daily including on the day in question. Clear hand or nodding signals were, it seems, usually adopted on site between workers. All members of the crew were clearly aware of the need for the signals. The particular preventative measure mentioned by Mr Cauduro which seems to be relevant is that in paragraph 4.18(b) of his report: "Provide an additional worker as a spotter who communicates directly with the climber and ground workers". The plaintiff relies on this measure in his written submissions: paragraph 21. I assume by the word "spotter", Mr Cauduro was intending to refer to a person who acts as an observer to take reasonable steps to ensure that all activities were conducted safely.
Relevant background matters would appear to be as follows: 1. There was no formal employed representative of Active on site on the day of the accident to co-ordinate activities; 2. I have found that Mr Brady did not attend the worksite on the day of the accident; 3. I have found that Mr Brady attended and had discussions with Mr Moffett about the scope of the work on the Friday prior to the accident; 4. All of the persons present on site were contractors to Active; 5. On the day of the accident, Mr Moffett was the leading hand of the crew meaning the supervisor of the crew. As the leading hand of the crew, his duties included the presentation of toolbox meetings each morning and the completion of the hazard assessment form; 6. Mr Moffett was the supervisor of the crew as the leading hand as a matter of practicality. He therefore had the task of supervising the crew and the work at work sites in the absence of Mr Brady at the site; 7. The SWMS work method statement of Active for "tree maintenance" dated 25 August 2013 required an "observer" to be appointed. Mr Robin as the operator of the pole saw was not the observer. I accept the evidence of Mr Brady that it was standard practice at the time at Active for an observer to be appointed in relation to the tree cutting activities. No observer was appointed by anyone including Active in relation to the tree cutting activities at the site on 25 November 2013. In particular, Mr Brady did not appoint Mr Moffett as the observer and indicate to him and the ground crew and Mr Robin that this was his principal role for the job.
I have already referred above to a number of the authorities in which the duty of care of an occupier of a site was considered. In the light of these authorities, in my view Active was under a duty of care to Mr Moffett to exercise reasonable care to prevent foreseeable and not insignificant risks of harm to persons coming onto the site including taking precautions that a reasonable person in the circumstances would have taken by way of a response to the risk of ground crew being struck by falling branches but on the assumption that the members of the ground crew would exercise reasonable care for their own safety. See Jackson v McDonald's Australia Ltd, above, [7]-[8] and [82] and Patrick Stevedores, above at [53].
In relation to subcontractors on the site, in my view Active was under a duty in the circumstances to exercise reasonable care to prevent foreseeable and not insignificant risks of harm to persons coming onto the site or working on the site in relation to the system of work used at the site on the assumption that workers would exercise reasonable care for their own safety. As the principal contractor on the site, in my view Active had a duty of care to take reasonable steps to supervise activity on the site, particularly the coordination of the various contractors on the site in the light of its stipulated system of work. This is somewhat similar to a head contractor on a building site: see Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588; [1965] HCA 26 at 598-599; Bryan v Maloney (1995) 182 CLR 609; [1995] HCA 17 at 624-625; Sydney Water Corporation v Abramovic [2007] NSWCA 248 at [98]; Miljus v Watpow Constructions Pty Ltd [2012] NSWCA 96 at [72]; Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA 460 at [62]-[67]. In Stevens v Brodribb, above, members of the High Court specifically contemplated an obligation on a party engaging independent contractors in these circumstances: see the comments of Mason J at page 31. His Honour saw no reason why the obligation to prescribe a safe system of work should be limited to an employer. At page 43, Wilson and Dawson JJ contemplated liability in the party engaging an independent contractor for a failure to ensure the independent contractor takes precautions against loss or damage. Such a duty is consistent with the relevant SWMS document prescribing a system as to the appointment of an observer which Active had in place. See the comments of Simpson JA (with whom Rothman J agreed) in Jurox Pty Ltd v Fullick [2016] NSWCA 180 at [55] and [81].
Similar to the Parkview Constructions case referred to above, Active was the head contractor in overall control for the purposes of the cutting and pruning work on the work site. It was the principal of the project and the occupier for relevant purposes of the site. Whilst there was no duty on Active to ensure the safety of Mr Moffett, it was obliged to exercise reasonable care to prevent him and other persons working on the site from being injured by a failure to enforce its system of work. This included the co-ordination of the various subcontractors on the site.
If, contrary to my finding, the CLA was applicable to the position between Active and Mr Moffett, it is necessary, having found a duty of care, to identify the relevant risk of harm. As stated above, what a reasonable person would have done in response to the risk must be considered prospectively and in the light of what the risk was. One can only assess reasonable precautions once the relevant risk of harm is identified: Lloyd v Thornbury, above at [47]-[48].
In my opinion, the relevant risk of harm in the present case was that of a member of the ground crew being struck by a falling branch or piece of cut wood as a result of a failure by Active to co-ordinate the various activities of the subcontractors within its system of work, including the provision through communication with an observer of a signal that Mr Robin was intending to recommence his cutting activities and that it was safe to do so.
As indicated above, the measure of a discharge of a defendant's duty of care is what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk: Patrick Stevedores, above and Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. It was reasonable for Active to assume that the subcontractors, including Mr Moffett, would exercise reasonable care for their own safety.
Active submits that it took reasonable precautions by Mr Brady discussing with Mr Moffett the scope of the job and appointing Mr Moffett as the leading hand for the day in circumstances where he was the most experienced subcontractor and Mr Brady was aware that other subcontractors including Mr Robin were also experienced. In substance it was submitted that Mr Moffett as the leading hand should have appointed an observer: written submissions dated 15 March 2021, paragraphs 56 and 61. Mr Moffett and Mr Robin submit that a formal observer should have been appointed by Active consistent with the 25 August 2013 SWMS document (Exhibit 2D2). In my view, the obligation to appoint an observer rested upon Active which stipulated the system of work to be used by the contractors not Mr Moffett as the leading hand. Active was the occupier of the site and the principal contractor. It engaged all the contractors.
I proceed to consider the elements in s 5B of the CLA in the light of s 5C as applicable to the present case involving the plaintiff and Active: 1. The risk was foreseeable, that is, it is a risk of which the defendant knew or ought to have known - in my opinion, it was foreseeable, in the sense of being a risk of which Active knew or ought to have known, that a member of the ground crew involved could have been struck by a falling branch or sawn wood piece if there was a failure by Active to co-ordinate the activities of the subcontractors through the appointment by Active within its system of work of an observer who was separate to the person operating the pole saw in accordance with the SWMS document. It seems the risk was one which was expressly acknowledged by Active in the SWMS document; 2. The risk was not insignificant - the members of the crew involved were experienced, particularly Mr Robin and Mr Moffett. There was an established system of hand communications between the members of the crew. However, the site was extremely noisy particularly when the chipper was in use as in the present case. Two-way radios which were hand operated were impractical on the evidence. The SWMS document recognised the dangers for injuries when tree cutting was occurring. Reference was specifically made in the Active SWMS document to the need for an observer. Mr Brady said it was Active's policy at the time to appoint an observer. However, he did not appoint an observer for the day's work or, on the evidence, discuss with Mr Moffett the need for an observer to be appointed. The site was busy and the activities needed to be carefully coordinated. Having regard to these matters, in my view the risk of injury without an observer was not insignificant at the time; 3. Whether a reasonable person in the position of the defendant Active would have taken the precautions indicated of appointing an observer (or "spotter" as Mr Cauduro called it) - Active points to the fact that the crew were experienced, had an established system of hand signals for communication in place and Mr Moffett who was very experienced had been appointed by Mr Brady the leading hand of the crew for the day. It was submitted on behalf of Active that having regard to these matters, the leaving of the work activities to the experienced subcontractors in the light of Mr Brady's instructions as to the scope of works was sufficient. It was up to Mr Moffett as the leading hand to appoint an observer consistent with Active's SWMS policy. Mr Brady accepted that he had not appointed an observer for the purposes of the day's work by the various subcontractors. There was no evidence that he had indicated to Mr Moffett that an observer should be appointed by him. There was no evidence that he had communicated with Mr Robin that he should always check with a specified person who was the designated observer before commencing cutting activities. There was no evidence that Mr Brady was satisfied that Mr Moffett and Mr Robin were aware of the details of the SWMS document. Active had chosen to perform its contract largely through various subcontractors who had different roles to perform. In my view, a reasonable person in the position of the defendant Active in these circumstances would not have left the matter purely in the hands of Mr Moffett as the leading hand but would have appointed a formal observer for the day and talked to the ground crew (or at least Mr Moffett) and Mr Robin in relation to the need for cutting not to commence or resume until the observer had indicated by a hand signal that it was safe to do so and had seen all ground crew members placed out of the drop zone; 4. The probability that the harm would have occurred if care were not taken - in my view, the probability of harm occurring in the circumstances in the absence of the appointment of an observer with the experienced crew was not high. However, in the absence of the appointment of an observer in the circumstances, there was a real risk that an accident could have occurred and that therefore harm would have occurred to the ground crew by someone being struck by a falling branch or piece of sawn wood; 5. The likely seriousness of the harm - if a person was not aware that cutting was to recommence that person could be killed or seriously injured by being struck by a falling branch or piece of sawn wood in the drop zone; 6. The burden of taking precautions to avoid the risk of harm - there was not a significant burden on Active in taking the precautions of appointing an observer (possibly Mr Moffett himself) and instructing Mr Robin not to proceed to cut until he had been given a clear signal or indication from the observer that it was safe to do so; 7. The social utility of the activity that creates the risk of harm - as indicated above with Mr Robin, cutting and pruning were significantly useful activities but had to be seen in the light of the serious risk of harm to members of the crew if reasonable precautions were not taken by Active; 8. The risk of injury without an observer is, in my view on all the evidence, obvious to a reasonable person in Active's position. In my view, a reasonable person in the position of Active in the present case would have taken the precautions indicated of appointing a formal observer and instructing Mr Robin not to proceed to cut without hand signal communications with the observer. Taking into account the matters which I have referred to, in my opinion there was a breach of duty of care by Active in relation to Mr Moffett in the circumstances in relation to the system of work. An observer should have been appointed by Active and there should have been a co-ordination between subcontractors by discussions by Mr Brady on behalf of Active in relation to the observer with at least Mr Moffett and Mr Robin. Whilst I accept that it was reasonable for Active to engage the services of independent contractors who were competent to control their systems of work without immediate supervision, the co-ordination of the various subcontractors during a potentially dangerous activity required discussion with the subcontractors and the appointment of an observer as Active's SWMS document itself recognised. The crucial interaction of the various subcontract activities is, in my view, relevant to the precautions needed to be taken by Active.
Accordingly, if the CLA was applicable to the current facts as alleged, I would have found that there was a breach of duty of care by Active to Mr Moffett in the present case.
As I have found that if the CLA was applicable, both Active and Mr Robin breached a duty of care owed by them to the plaintiff, the question arises as to the application of s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) in the event that s 3 of the Employees Liability Act 1991 is inapplicable. Both defendants have filed cross-claims seeking contribution. My finding that s 5 is inapplicable, above, is on the basis that the plaintiff is a "worker" or "deemed worker." If I am wrong in those conclusions, then the s 5 analysis must be undertaken as both defendants would be potentially liable. In that scenario, which is contrary to my findings, the usual analysis under Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529 at [10] must take place.
In my view, the failure by Mr Robin to locate the plaintiff or ensure he was out of the drop zone before he recommenced cutting was significant and causatively relevant. Similarly, I find that the failure by Active to take reasonable steps to ensure its system of work was complied with by all relevant contractors by the appointment of an observer and the discussion of the observer's role with the plaintiff and at least Mr Robin was also significant and causatively important. I do not consider that the obligation rested on Mr Moffett as the leading hand to appoint the observer. This was the obligation of Active as the co-ordinator on the site. It set out the system of work to be used in the SWMS document. The breaches of Active appear to me to be causatively important in contributing to the plaintiff's damage. I reject Active's written submissions dated 15 March 2021 paragraphs 121-122 and 127-8. As set out above, I would accordingly have attributed to each defendant the following apportionment under s 5(2), if the CLA was applicable: Mr Robin 25%; Active 75%. Active was the occupier of the site for the purposes of the work. It determined the scope of works. It created the SWMS document. It co-ordinated the services of the contractors. Its omission was more significant.
The argument of Active that should the plaintiff be found to be a "worker" or "deemed worker", Active cannot be liable under s 5(1)(c) as it is not the "same damage", being work injury damages, should be rejected. "Damage" is different to "damages". The relevant damage is the personal injuries and consequent losses of the plaintiff not "work injury damages". Otherwise, Mr Robin could potentially be liable for all losses without the availability of contribution from Active. I accept the reply submissions of Mr Robin on this issue: reply submissions paragraphs 19-20.
Similarly, I can see no reason to "exempt" Active from responsibility under s 5(2) of the 1946 if it were otherwise liable under s 5(1): see paragraph 30 of Active's 31 March 2021 reply submissions.

Causation

Sections 5D and 5E of the CLA provide as follows: "Division 3 Causation 5D General principles (1) A determination that negligence caused particular harm comprises the following elements - (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent - (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."
Therefore, the plaintiff has the legal onus of proving on the balance of probabilities any fact relevant to the issue of causation in the proceedings: Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 at [18]; Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [16]-[19]. The determination of factual causation under s 5D of the CLA involves the application by the court of the "but for" test of causation which involves a determination that in accordance with the section, negligence was a necessary condition of the occurrence of harm. That determination involves an assessment on the balance of probabilities that the harm in fact occurred to the plaintiff and would not have occurred absent the negligence: Strong above at [18]. In the present case before the court, that involves a determination whether but for any breach of duty of care by Mr Robin or Active any loss or damage suffered by the plaintiff would not have occurred. No submission was made by any party that this was an exceptional case for the application of the approach referred to in s 5D(2) of the CLA: see Lloyd v Thornbury, above at [82].

Contributory negligence

Both defendants have pleaded contributory negligence against the plaintiff: see paragraph 12 of the Amended Defence filed 1 August 2019 (Active); paragraph 11 of the Third Further Amended Defence filed 11 June 2020 (Mr Robin). The particulars of contributory negligence, particularly those of Mr Robin, are widely framed and include a failure to take reasonable care for his own safety, a failure to comply with the SWMS statement for the work, a failure to keep any or any proper lookout and a general failure to comply with hand directions from Mr Robin and failing to observe Mr Robin and failing to have proper regard to the drop zone.
Sections 5R and 5S of the CLA provide as follows: "Division 8 Contributory negligence 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose - (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time. 5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated."
In Lloyd v Thornbury, above, Gleeson JA stated as follows at paragraphs 92-94: "92. The question of whether a person has been guilty of contributory negligence is to be determined objectively - whether the plaintiff has taken that degree of care for his or her own safety that an ordinary reasonable person would take: Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139 at [54] (McColl JA); see also at [94] (Basten JA, Emmett JA agreeing). 93. Section 5S provides that, when apportioning responsibility, a court may determine a reduction of 100 per cent in the claimant's damages by reason of contributory negligence. 94. The principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against a risk of harm which materialised and resulted in injury: s 5R. Accordingly, the existence and extent of a claimant's contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant's position would have taken against that risk: Gordon v Truong; Truong v Gordon [2014] NSWCA 97; (2014) 66 MVR 241 at [14]- [15] (Basten JA)."
The analysis which has to be made under the sections is as to whether the plaintiff has taken that degree of care for his own safety that an ordinary reasonable person would have taken in the circumstances. This involves the analysis set out in ss 5B and 5C of the CLA. As Gleeson JA stated in Lloyd v Thornbury, the existence and extent of a plaintiff's contributory negligence is to be assessed by reference to the risk of harm which is the subject of the plaintiff's claim for damages in the light of the precautions that a reasonable person in the plaintiff's position would have taken against the risk.
The plaintiff submits that there was no contributory negligence in the present case. The defendants submit that there was considerable contributory negligence and their liability for any damage to the plaintiff should be reduced by 100%.
I proceed to consider the issue of contributory negligence on the assumption that the CLA applies.
In my view, the defendants have failed to establish contributory negligence by the plaintiff in the present case. There was no satisfactory evidence that anyone was appointed the designated observer at the worksite where the accident occurred on 25 November 2013 whether by Active or the plaintiff or anyone else. At least Mr Moffett and Mr Wells (and probably Mr Wellings) entered into the drop zone to remove branches after Mr Robin had given a clear signal to the members of the ground crew that he would cease cutting and that it was safe to enter the drop zone to remove the branches. Following seeing that signal, the plaintiff was in the drop zone in the normal way. He continued to remove branches when he was struck. I accept the plaintiff's evidence that he was not aware that Mr Robin was about to commence cutting. Mr Robin looked over and only saw Mr Wells and Mr Wellings and not Mr Moffett. In my view, a reasonable person in the plaintiff's position would expect that Mr Robin would not have proceeded to recommence cutting until he had taken reasonable steps to ensure that all members of the ground crew were outside the drop zone. Without seeing Mr Moffett, there was a real possibility that he remained within the drop zone.
In my view, it was the obligation of Active not Mr Moffett to appoint an observer and to discuss the importance of the observer with the ground crew (or at least Mr Moffett) and Mr Robin. Applying s 5B of the CLA, and looking at the risk of injury to the plaintiff if he did not exercise reasonable care for his own safety, the risk of Mr Robin commencing to cut was not foreseeable, it was insignificant, and a reasonable person in the position of the plaintiff would have been focusing on removing the branches. It was difficult for the plaintiff to do that task in the drop zone while paying regard to the role of Mr Robin above him having regard to the noise of the EWP operating and the chipper. It was submitted that as he was the leading hand, Mr Moffett was responsible for safety at the site and thus appointing an observer. To appoint an observer involved taking a member of the crew from branch collecting or "chipping" duties. This would have lengthened the task. In my opinion, this was a matter for Active, consistent with the system of work set out by it in the relevant SWMS document.
In my view, the plaintiff in all the circumstances took the degree of care for his own safety that an ordinary reasonable person would take in the circumstances having regard to the established practice of the crew in relation to hand signals and the recommencement of cutting. I have considered each of the particulars of contributory negligence relied on and find that none have been proven by the defendants. I accept the plaintiff's submissions on this issue.
The first defendant in his submissions urged a finding of 100% contributory negligence: 8 March 2021 submissions paragraph 11. This submission was also made by Active. This was based on a factual finding which I have rejected. Mr Robin was aware that Mr Moffett was engaged in chipping activities at the site on the morning of the accident before the accident. He saw the signal from Mr Robin that he was stopping cutting before going in with the others to collect the cut branches. He was not aware that Mr Robin was about to cut, nor would a person exercising reasonable care in his position.
Accordingly, contributory negligence is not established.

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