Supreme Court of the NT|1989-10-30|Before: Angel J

Pelligrini v Trikilis [1989] NTSC 37; 63 NTR 5; 99 FLR 157 (30 October 1989)

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA Angel J.(1) CWDS Workers Compensation - Independent contractor

existence of exemption certificate under Act - whether conclusive that appellant not a worker - exemption certificate subject to condition that inapplicable when its holder remunerated on regular time basis - whether condition valid - Work Health Act (NT) ss. 3,4(1), 53,58,59. Cases referred to: Buchanan and Brock Pty Ltd v Harris [1957] HCA 71; (1957) 98 CLR 22 George Hudson Ltd v Australian Timber Worker's Union [1923] HCA 38; (1922) 32 CLR 413 Vacher and Sons Ltd v London Society of Compositors [1912] UKHL 3; (1913) AC 107 HRNG DARWIN #DATE 30:10:1989 Counsel for the appellant : J.Waters Solicitor for the appellant : Waters James and

O'Neil Counsel for the respondent : A. Wyvill Solicitor for the respondent : Mildrens ORDER Appeal dismissed with costs. JUDGE1 On the 19th January 1988 the appellant, a bricklayer, was injured at his place of work whilst being disarmed after attacking a labourer with a trowel. The attack followed an argument as to whether the labourer could borrow the appellant's hammer. 2. The learned Magistrate from whom this appeal proceeds held that the appellant was not a "worker" within the meaning of that term in the Work Health Act because the appellant held a current exemption certificate pursuant to s. 58 of the Act. The learned Magistrate further held that if, contrary to his opinion, the appellant was a "worker" he nevertheless failed for he was injured other than in the course of work, the attack with the trowel constituting a break from work. In the course of his reasons the learned Magistrate referred to a number of decisions on the meaning of the expression "out of or in the course of his employment". 3. Traditionally the common law and workers compensation legislation have recognised a distinction between workers and independent contractors. Workers have always been regarded as covered by the provisions of the legislation and independent contractors outside of it. Whether a person is a worker or an independent contractor has traditionally depended upon whether the person was working pursuant to a contract of service or a contract for services. 4. The appellant's entitlement to compensation depends on whether he can bring himself within s. 53 of the Work Health Act which relevantly provides: "..where a worker suffers an injury..there is payable by his employer to the worker..such compensation as is prescribed". 5. "Worker" is defined by s. 3 of the Act as meaning a natural person other than, inter alia, an independent contractor. "Independent contractor" is defined as meaning a natural person with a current exemption certificate pursuant to s. 58 of the Act. "Injury" is defined as meaning a physical or mental injury "arising..out of or in the course of his employment". 6. Section 58 of the Act provides that a person may apply for an exemption certificate. As can be seen from the provisions of that section, the application is made to the Work Health Authority which may issue a certificate subject to such terms and conditions as it thinks fit. Sub-section 2 of s. 59 provides that a person who breaches a condition imposed by the Authority is guilty of an offence. In the present case a "condition" of the exemption certificate issued to the appellant was in the following terms: "This certificate is invalid whilst the holder is receiving remuneration or payment for services provided on an hourly, daily, weekly or other regular time rate except where the basis is used to establish a contract price agreed to at the commencement of a job". 7. The learned Magistrate did not make any finding as to whether the hourly rate at which the appellant was paid was on the basis of an agreed contract price. The learned Magistrate held that the "condition" was null and void. I shall return to this matter later. 8. Section 58 of the Act has certain features. The Act does not spell out from what a person is exempted if given a certificate, though it is tolerably clear. I think it means exemption from eligibility for compensation. It is further to be noted that under sub-s. (1) a person is not obliged to obtain an exemption certificate. It is undoubtedly a discretionary matter. As can be seen from s. 58 sub-s.(5) the effect of a certificate is to disbar a person from claiming compensation "in respect of the death of or injury to the exempted person occurring or sustained in or as a result of an activity to which the exemption relates". 9. The appellant argued that according to general law principles he, whilst "employed" by the respondent, was a worker rather than an independent contractor, that, as a result of condition 3, the certificate was not issued in respect of such work and that, as a consequence, he can claim compensation. It was argued that the traditional dichotomy between worker and independent contractor had to be analysed as a matter of fact in each case notwithstanding the definition of worker and independent contractor in the Act. It was said that it is well known in the building industry that tradesmen sometimes work as independent contractors and sometimes as employees under contracts of service. In other words, it was said, depending on the characteristics of the particular "employment", i.e. whether one of service or for services, a person is covered or not covered by the Act as the case may be. 10. I reject this submission. 11. It seems to me the argument takes no account of the general intendment of s. 58 sub-ss.(1) and (5) and the definitions of "worker" and "independent contractor". As I have pointed out, a person may but is not obliged to obtain an exemption certificate. It follows from that, I think, that read with the definitions of worker and independent contractor, the old difference between a worker and an independent contractor is cast aside. A natural person who does work pursuant to a contract for services i.e. a traditional independent contractor squarely falls within the definition of "worker" if he does not hold an exemption certificate. Furthermore, it is clear from s. 58(5) that the effect of a certificate once issued is to extract the person to whom a certificate is issued from the provisions of the Act only in so far and to the extent that the person is engaged in work covered by the certificate. I think the fallacy in the appellant's argument lies in categorising the "activity" referred to in s. 58 sub-s.(5) as the relationship between the applicant and the person for whom he works, rather than the physical nature of the work undertaken. In my opinion the "activity" referred to in s. 58 sub-s.(5) is the physical nature of the work undertaken irrespective of any relationship or contract or engagement pursuant to which the work is performed. 12. The appellant further submitted that notwithstanding the fact he was injured in the circumstances abovementioned, i.e. whilst being disarmed, he nevertheless sustained his injuries "in the course of his employment". I was referred to some of the "jungle of cases" (see per Rich J. in South Maitland Railways Pty Ltd v James [1943] HCA 5; (1943) 67 CLR 496 at 501) concerning the expressions "as a result of" and "in the course of" appearing in various workmens compensation legislation, either read conjunctively or disjunctively. I was referred to Boulter Worker's Compensation Practice in NSW, LBC (1966) at p 49: "If it is shown that the worker was responsible for the assault, then unless there are some extraordinary circumstances the course of employment will be broken." and to the 6th. ed. of the C.C.H. Guide to Workers Compensation in Australia (1988) at p 96: "Clearly an assault emanating from a dispute as to the manner in which work is to be carried out or who is to perform certain duties is sufficient to bring the situation within the course of the employment; a dispute however involving the personal integrity of an employee or other personal matters will not be sufficient unless there is clear relevance to the employment situation". 13. It was submitted the latter was correct and the former wrong and that the question turned not on whether the appellant was the aggressor but rather whether it could be regarded as incidental to work in so far as the argument arose over the appellant's tools rather than out of a private argument. It was submitted there was no clear judicial statement as to the proper and true analysis of the cases and that Boulter's analysis should be rejected as being too related to causation and insufficiently related to purely temporal aspects. 14. The appellant was unable to point to any authority where a worker who was injured as a result of his own assault was granted compensation. It seems an unusual assertion that a worker who is to an extent the perpetrator of his own injuries, by virtue of "striking the first blow", may claim that he was injured as a result of or in the course of his employment. 15. However, I decline to enter into any debate (if there be one) about this area. It seems to me any difficulty in this regard is swept away by s. 4 of the present Act which relevantly provides "(1) Without limiting the generality of the meaning of the expression, an injury to a worker shall be taken to arise "out of or in the course of his employment" if the injury occurs while he

(a) on a working day that he intends at his workplace - (i) is present at the workplace." 16. As the High Court said in Buchanan and Brock Pty Ltd v Harris [1957] HCA 71; (1957) 98 CLR 22 at 27 of the then Victorian equivalent: "The effect of s. 8 of the Acts is to make it unnecessary in any particular case to institute an inquiry whether a worker's injury has, in fact, arisen out of or in the course of his employment; it is sufficient under sub-s.(2)(a) if the injury has occurred whilst the worker, having attended at his place of employment on a working day pursuant to his contract of employment, is present at that place or, having been so present, is temporarily absent therefrom on that day during any ordinary recess and does not during any such absence voluntarily subject himself to any abnormal risk of injury. If either of these conditions are fulfilled it is unnecessary to go further for the purpose of finding some relation between the injury and the course of the worker's employment". 17. Subject to s. 57, s. 4(1), literally read, would enable a worker who falls within the definition in s. 3 to recover compensation in respect of a self-inflicted injury at his work place or, as in the present case, compensation in respect of injuries sustained in the course of committing a criminal act, viz. assault. 18. It is unnecessary for me to decide the true ambit of s. 4(1). Nor do I find it necessary to consider s. 57 of the Act which excludes recovery of compensation in respect of self inflicted injuries and injuries not resulting in death or permanent or long term incapacity attributable to serious and wilful misconduct of the worker. 19. For the reasons I have given, namely that the appellant was the holder of a current exemption certificate in respect of bricklaying and therefore an independent contractor as defined, I hold that he was not a worker and thus not entitled to compensation under the Work Health Act. 20. There only remains one further argument of the appellant, that is that since he was paid on an hourly basis the exemption certificate did not cover his situation. As I have said the learned Magistrate held that "condition" numbered 3 of the certificate was invalid. 21. It will be immediately obvious that the penalty provided by s. 59(2) of the Act cannot apply to "condition" 3. The "condition" seeks to circumscribe the ambit of the certificate by reference to the working relationship between the person performing the work and the person for whom the work is performed, the very thing rendered irrelevant by the provisions of the Act. There are apparently as yet no prescribed conditions under s. 58 of the Act and there is no fetter on the powers of the Authority to impose conditions other than that a condition cannot be imposed which is inconsistent with the general intendment of the Act or any particular provision or provisions thereof. 22. Condition 3 seeks to impose the old distinction between worker and independent contractor by reference to the terms of employment. The Act, on the other hand, recognises the distinction only in so far as an exemption certificate pursuant to s. 58 has been issued. In my opinion in so far as the condition runs counter to the clear intendment of the Act to abandon the old distinction it is to be disregarded. A person is an "independent contractor" as defined by the Act regardless of any distinction between contracts of service and contracts for services or of the relationship between the person performing the work and the person for whom the work is performed. I agree with the conclusion of the learned Magistrate on this matter. 23. The appellant argued that to hold that the difference between a worker and an independent contractor lies simply in the existence or otherwise of an exemption certificate would result in dire social consequences. It was said that workers in the Northern Territory could not get work without an exemption certificate and that persons for whom work was done or intended to be done could exploit the workforce. But only natural persons in business on their own account are eligible for exemption (s. 58(1)) and, in any event, whether or not these consequences follow is not a proper matter for judicial consideration. As Lord Macnaghten said in Vacher and Sons Ltd v London Society of Compositors [1912] UKHL 3; (1913) AC 107 at 118: "Some people may think the policy of the Act unwise and even dangerous to the community. Some people may think it at variance with principles which have long been held sacred. But a judicial tribunal has nothing to do with the policy of any Act which it may be called upon to interpret. That may be a matter for private judgment. The duty of the court, and its only duty, is to expound the language of the Act in accordance with the settled rules of construction. It is, I apprehend, as unwise as it is unprofitable to cavil at the policy of an act of parliament, or to pass a covert censure on the legislature". 24. The appellant's argument is not assisted by any appeal to a benevolent or liberal construction of the Act or by George Hudson Ltd v Australian Timber Worker's Union [1923] HCA 38; (1922) 32 CLR 413 at 436. Nor does the case involve a choice of some policy value that might or might not be identified - the views of Sir Anthony Mason (see: (1986) 16 F L Rev 1 at 5 and [1987] MonashULawRw 6; (1987) 13 Mon LR 149 at 158-9) on this question may be contrasted with that of Lord Radcliffe (see: The Law and Its Compass, 1961, at p 39 and Paterson, The Law Lords, The MacMillan Press, 1982, at pp 140-141); and see also Wood, "Adjudication and Community Values" in The Emergence of Australian Law Ellinghaus, Bradbrook and Duggan, (ed.) Butterworths, 1989, Chapter 5. The necessary judicial task in the present case is only patiently to expose the apparent: cf. Lord Radcliffe Not in Feather Beds, 1968, at p 50. 25. In summary this appeal must be dismissed because the appellant was not a worker at the time of the incident by reason of the fact that he held a current exemption certificate in respect of the activity, viz. bricklaying, in which he was engaged at the time of the incident giving rise to the injury. It is unnecessary to discuss the question whether the injury arose out of or in the course of his employment or the ambit of ss. 4(1) and 57(1) of the Act. 26. The appeal is dismissed with costs.

Pelligrini v Trikilis [1989] NTSC 37; 63 NTR 5; 99 FLR 157

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Pelligrini v Trikilis [1989] NTSC 37; 63 NTR 5; 99 FLR 157 (30 October 1989)

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