Reeves and Reeves (Dec'd) v Workcover/Cgu

4 On 9 November 1999 about 1.30 pm the deceased suffered a stroke whilst at work. He was taken to Ashford Hospital and died on 20 November 1999. The applicant claims compensation as the result of her husband's demise.

5 It is common ground that the disability from which the deceased suffered was the bursting of a cerebral berry aneurysm. That caused bleeding into the brain. In more precise terms this was a haemorrhage into the subarachnoid region of the brain. That a berri or sacular aneurysm ruptured, is assumed by the medical experts to have been the incident that produced the disability; although this is not, in the absence of a post mortem, conclusively proven. However the case was conducted on that assumption (with some slight reservation from Professor Richard Burns). I propose to deal with it on that basis.

6 It is common ground that the decision of the Full Supreme Court in WorkCover Corporation v Jakas 2003 SASC 155 affirming that the decision in Burch v South Australia (1998) 71 SASR 12 remains the law determining the approach to be taken (especially Lander J par 67, 68 and 69 thereof.

7 The primary question to be resolved is whether the employment activities of the deceased contributed to his death. That is because the rupture of the aneurysm is taken to be part of a disease process within the definition of disease in the Act.

8 To succeed, the applicant must demonstrate the requirements of s 30(2)(b) of the Act are met namely:-

" ... in the case of a disability that is a secondary disability or a disease -

(ii) the disability arises in the course of employment and the employment contributed to the disability."

9 There is a second point in the case which is put in issue by the compensating authority. That is whether the deceased was an employee of CRCS. Ie whether the activities of the deceased said to have been the cause of the stroke, in its wider sense were activities of an "employee". This will involve a consideration of Caldwell v WorkCover Corporation/Allianz Australia (Adelaide Technical Rubber) [2002] SAWCT 89 and the subsequent case of Moir v WorkCover/Royal and Sun Alliance Workers Compensation (SA) Ltd (HTI Communications Pty Ltd (In Liquidation)) [2003] SAWCT 65.

10 The facts are that the deceased was born on 30 July 1943. At the time of death he was 58. He married the applicant in 1966. He trained as an art decorator and set up his own business.

11 The work itself imposed its own psychological pressures - work to be sourced - clients to be dealt with and at times placated - schedules to be adhered to - programs and campaigns to be constructed.

12 As a rule the deceased had to arrange for printing, photographers, planning advertising etc.

13 Some of this activity was subcontracted. He had to ensure that the work was up to the client's expectations and was delivered on time. CRCS or he was responsible for paying the subcontractors. If the client defaulted in paying a bill rendered by CRCS which included disbursements (sometimes they could be substantial) that impacted upon the deceased's financial viability, because it threatened the financial viability of CRCS. Even if CRCS was not paid - the photographers etc had to be paid.

14 The evidence of how the deceased became financially liable for the debts of CRCS is non existent. If it was by way of personal guarantees, that would have negated one of the primary purposes of injecting a legal entity between the creditor and the purchaser and thus protecting personal assets.

15 It may be that the deceased looked upon the satisfaction of these debts to subcontractors as a matter of personal honour. For the purposes of this discussion that may not matter.

16 In the financial year ending 30 June 1998 and 1999 one debtor did not pay $73000 while another client defaulted on a $20000 bill. The debts were incurred for work done in earlier years but they were brought to account in those financial years.

17 The deceased's son who is an accountant and who prepared the books of the company said in his statement that the deceased from time to time appeared to him to be depressed about financial affairs. In short, the deceased was subject to all the pressures and uncertainties to which any self employed business person or professional person in practice for themselves encounters.

18 The deceased's remuneration at least for tax purposes varied considerably. There was no set remuneration or package.

19 Each year the most "tax effective" construction was put on his remuneration. His son was at pains to point out that the deceased's income for tax purposes did not reflect his drawings from CRCS. That does not concern us immediately because I was not called upon to decide the s 35 issue. Some aspects of it however may be significant.

20 The deceased was in his late fifties. He was by common consent both competent and popular. CRCS rented premises from Malzard Gregson Moore Advertising Pty Ltd for whom he performed freelance and Art Director work in addition to his private clients. Mr Malzard said he observed the deceased's outward appearance as being a person who is calm, cool and collected - one of the calmest people he knew.

21 The applicant and Mr Craig Reeves provided statements for the purpose of this case. The statements when dealing with the deceased's emotional state lay significant emphasis on the "stress" undergone by the deceased. Their observations are quite different from that of Mr Malzard. However it is understandable that the family members would place a greater emphasis on stress in the context of a claim for compensation than would an outsider whose day to day contact with a colleague is external.

22 It is probably no more than a difference of emphasis. I think the truth lies somewhere between the two versions. Mr Malzard observes very properly "to the outside observer who can tell what interior stressors are suffered by another person no matter how well adjusted they are".

23 We do know that the deceased was reasonably healthy. In 1994 he participated in the Bay City Fun Run. After his blood pressure rose he was referred to Dr JF Sangster cardiologist and was found to have elevated blood pressure. Dr Sangster suggested certain medication to Dr PG Duguid the deceased's GP.

24 Dr Duguid's report says that the deceased's blood pressure was under reasonable control. It was not poorly controlled but was not adequately controlled in the sense that it was not badly controlled and was more often higher than lower - but it was adequately controlled ie it lacked text book control.

25 The deceased's blood pressure was checked regularly by his GP who was apparently known to at least one of the medical experts and is regarded as being a very highly competent general practitioner. In 1999 there are blood pressure readings for January, February, April, June, August and October. The blood pressure readings were 160/90, 146/84, 149/88, 142/86, 160/90 and in October 150/80. The deceased was taking 10 mg Norvasce.

26 Dr Duguid described the condition as "essential hypertension" ie hypertension without any known and obvious cause.

"There are times when I record his blood pressure when he was under stress basically through his work where on some occasions there was quite some financial stress. He was a non-smoker and an active healthy man."

27 Dr Duguid was of the opinion that the business contributed to the volatile readings and elevation of the readings (TB 33):-.

"I believe his business contributed to the volatile readings noted above and on several occasions elevations of his blood pressure were directly related to usually financial stress associated with his work.

Chris died of a severe intracranial haemorrhage in November 1999 and his hypertension was almost certainly a factor in this event. I believe that the worker would have suffered a cerebral haemorrhage on the 9th November and basically was coincidental that it occurred in the course of employment."

28 A report from Mr Ahmad Hanieh neurosurgeon of 27 March 2000, (TB 24) was tendered:-

"Mr Reeves' condition was spontaneous subarachnoid haemorrhage which can occur without any precipitating factor. However work stress can be a factor.

In summary Mr Reeves collapsed as a result of severe subarachnoid haemorrhage while at work. It is not possible to say whether work stress has precipitated the stroke or not."

29 The applicant relies essentially upon the opinions and evidence of Dr JF Hallpike consultant neurologist TB 41. His evidence is found in the transcript at 13 - 52. Dr Hallpike's opinion, reduced to essentials was:-

"An aneurysm is a defect in the wall of cerebral vessel. It ruptures when the wall undergoes changes and the rupture is ascribed by ischemia ie a shortage of blood."

The name berry aneurysm is a saccular aneurysm ie the wall forms a sac or berry shape.

Hypertension can contribute to the formation of aneurysms - although hypertension is not a condition precedent for their formation. In non-hypertensive subjects hypertension is not a condition precedent. The deceased's known hypertension is an acceptable basis to postulate that it contributed to the formation of the aneurysm.

That condition of hypertension is related to or its existence is contributed to by "stress". There is evidence that the deceased suffered "stress" in his work.

Therefore by deduction the work contributed to the formation of the aneurysm.

It is thought the rupture occurs consequent upon the physiological changes that occur in the wall of the vessel.

These changes result in the wall being deformed and being deprived of adequate blood supply (ischemia) hence the wall becomes weak. This allows penetration of blood through the wall. This is the rupture. The changes in the wall of the aneurysm are analogous to the formation of atherosclerotic lesions found elsewhere in the vascular system. Thus, hypertension is a principal risk factor in atherosclerosis. In hypertensive subjects this leads to greater increases in blood pressure with physical or mental exertion. Those changes in blood pressure are not found with normotensive individuals. The answer is more likely than not that the deceased's hypertensive condition contributed to the rupture.

The deceased's stress at work contributed to the deceased's hypertension and it follows that that stress which was work related contributed to the rupture of the aneurysm.

"The majority arise out of degenerative arterial disease processes which accounts for their presentation in this 40 to 60 age group as opposed to it being predominantly at a much younger age....

Saccular aneurysms are a heterogenous entity of varying aetiopathogensis and varying causation but the biggest group is now held to be almost certainly more of degenerative arterial origin than being very specifically genetic connective tissue origin."

"Crompton in the UK showed that clearly in an important proportion of aneurysms there were degenerative changes in the arterial wall and he likened these quite closely to changes that occurred elsewhere in the arterial system of atherosclerosis and he therefore really introduced the idea that risk factors for atherosclerosis could also in some cases be risk factors for aneurysm formation."

"Hypertension is now regarded as the most important risk factor particularly so for many forms of cerebrovascular disease, ... along with haemodynamic stress."

"... The circadian patterns of a hypertensive person exhibit fluctuations of blood pressure greater than the normotensive person - particularly early in the morning."

"... a lengthier period of poor control of his hypertension would have a bearing on aneurysm and would carry a significant risk of having a bearing on the formation of an aneurysm. The question of what determines a rupture is more problematic. In other words hypertension is linked to these degenerative processes, arterial wall changes, formation and progression, but what actually determines the moment of rupture isn't necessarily an exact continuation of the same process related to the hypertension."

31 Psychological stress imposed from outside (exogenous) is probably a more significant stressor for most people.

32 Tr 24:-

"All you can say is that there are situations where psychological stress has been shown to be associated with accelerated arterial degeneration ... how it is related to a particular case, as here, I think that needs to be carefully handled, obviously."

"... the relationship between stress and hypertension is `controversial'."

The relationship between hypertension and aneurysms is controversial ... ie its an area where "the `last word' hasn't yet been said. Its an area where people are actively developing understanding and knowledge."

33 Tr 38 cross-examination:-

Dr Hallpike was referred to a quotation from "Principles of Neurology" by Adams, Victor and Ropper:-

"Atherosclerosis, though present in the walls of some saccular aneurysms, probably plays no part in the formation or enlargement."

34 Other than agreeing that atherosclerosis is not a condition precedent to the development of saccular aneurysms Dr Hallpike disagreed with the statement. He said that there were quite a number of contrary studies not referred to by that text. It is impossible to answer the question of whether the level of hypertension has a proportionate relationship to the extent (ie incidence) of atherosclerosis.

35 Dr Hallpike agreed that the deceased's hypertension was not due to his employment but that hypertension could be linked with the employment via stress.

36 He freely agreed that linking the rupture to the atherosclerotic lesions was drawing a conclusion by analogy. (Tr 46):-

"BENCH: ... as far as Dr Hallpike is prepared to take that, but he said that there are good grounds for saying that by analogy with other atherosclerotic lesions, then it's not unreasonable (ie to link hypertension to the formation of an aneurysm). One can't put it higher than that.

Q Is that correct, Doctor, that you are really arguing that it is an analogous-type argument.

37 In other words it is not a direct known link, but if atherosclererosis occurs in vascular lesions, by analogy it could explain the presence of and indeed rupture of this saccular aneurysm.

38 As to the relationship of the circadian pattern (ie elevated blood pressure), he agreed that this is a very indirect form of evidence.

39 Professor Richard Burns reported and gave evidence. His report is TB 38:-

1 The rupture was probably spontaneous. The origin of aneurysms remains controversial (ie either unknown or there is no agreement on the origin).

2 The role of systemic arterial hypertension is unclear. The studies themselves are not in agreement with each other.

3 The relationship between stress and hypertension is "controversial" (ie not proven and not generally accepted).

4 The relationship between hypertension and aneurysm is "controversial" (ie Professor Burns was not persuaded that such a case could be made out).

5 The deceased's hypertension was "essential hypertension". Employment related stress may have affected its level from time to time, but the hypertension was treated and controlled. There is no evidence in this case of an acute hypertensive crisis.

40 A subarachnoid haemorrhage secondary to the rupture of the saccular aneurysm was inevitable at some point in time.

41 In evidence Professor Burns approved the views published in Adams, Victor and Ropper. It is the widest selling neurological text in the world. The authors are distinguished neurologists and neuro-pathologists one of whom holds the Harvard Chair.

42 Professor Burns has worked with one of the authors.

43 He agrees with the views expressed by other leading text authors including Bradley's "Neurology and Clinical Practice" on this quotation therefrom (tr 59):-

"There are several theories to explain the cause of saccular aneurysms.

1 One hypothesis is that aneurysms arise from defects in the muscular layer of cerebral arteries that occur at vessel bifurcations.

2 Another hypothesis is that degenerative changes damage the internal, elastic membrane, resulting in weakness of the vessel wall and lead to aneurysm formation.

3 A third hypothesis is that both medial defects and degenerative changes are important. Early studies suggested a role for systematic hypertension in the aetiology of aneurysm formation, although this now appears unlikely." (my emphasis)

44 In cross-examination he recounted his own clinical experience of the incidence of artheroma, in the angiograms of patients who had aneurysms. This is a clinical demonstration and the only one that is available other than post mortems.

"... the prevalence of artheroma in the angiograms of the people who have aneurysms. It's never really been an issue as far as I know, ... every week at Flinders we reviewed our x-rays for an hour and a half, so it was something we did absolutely routinely and scrutinised these angiograms carefully because sometimes aneurysms can be elusive. I also took the trouble to speak to Prof Sage, who's the professor of neuroradiology at Flinders. ... `I said to him "What do you think about the incidence of atheroma in people with berry aneurysms from all the angiograms you've done?" He said, "the vessels are usually pristine." He said, "Atheroma isn't something we see." So, yes it's my experience ... but its after discussion with an eminent experienced colleague." (ie Professor Sage's experience was identical with Professor Burns).

45 Professor Burns disagrees with Dr Hallpike that the contribution of genetic factors is of limited importance (tr 68):-

"I believe that there is still very strong evidence for at least a role of a congenital defect and I don't think that that view has been thrown out by the majority of people, but I agree that it's controversial."

[1789] EngR 2385; 3 Tr 72:-

"Q Is elevated blood pressure a common factor of all the ruptures.

A No, it's not and it's not a prerequisite. They can rupture spontaneously."

"Certain types of aneurysm are well-known to occur with sustained hypertension; not, I don't believe, saccular aneurysms, but other sorts of aneurysms. (my emphasis)

"... I don't think someone who has chronic hypertension is more likely to rupture their aneurysm. The aneurysm - the system has adjusted to it, ... but I think if someone who is normotensive or who is hypertensive and then has a sudden unexpected elevation of blood pressure that may be a factor in causing the rupture, but I don't think hypertension causes a ruptured aneurysm."

Professor Burns does not agree that the deceased's blood pressure was poorly controlled. The description of control is comparative. From time to time the blood pressure was elevated and his blood pressures was not well controlled.

To sum up Professor Burns conceded that one cannot exclude the possibility that hypertension in this case may have hade a role but the role of hypertension if there was one in the development and then the rupture of the aneurysm was very small indeed.

"... you don't have to postulate any role of hypertension in this man's illness.

I personally don't think that hypertension caused any role in the rupture. I can't exclude it because I don't know what his blood pressure was at the time it did rupture.

BENCH: You would require additional evidence before you would take the view that there was a real role played by hypertension.

In this man we have no evidence that he had atheroma. The only thing he had was a ruptured aneurysm which can happen to someone in their 20's, 30's or any age.

"Q Am I correct in thinking that whilst there is no direct evidence that Mr Reeves had atherosclerosis disease at the time of his death, there is no evidence that he didn't.

Q I mean, in other words, that's a topic on which we just don't know.

A We do know. ... We do know because his local doctor saw him and according to his local doctor's notes;

2 He didn't complain of peripheral vascular disease.

3 He didn't have sick kidneys all the things that may occur from atheroma;

4 and he didn't have any history of stroke, so we know from the negative aspect

the fact that he never complained of these things, its highly likely that he didn't have them. We'll never know for sure, but here is a man who went to his doctor regularly and didn't complain of these symptoms, it seems unlikely he did have atheroma, but of course he may have because you and I probably have it."

46 As to stress, Professor Burns queries how one would measure stress. He said some people thrive on stress. It affects different people differently and it is difficult to draw any conclusions from mere assertions of stress.

47 Further whatever the level of hypertension, in this case it was treated conservatively and properly by a competent general practitioner. The patient had not been sent to a cardiologist since 1994 for further investigation. The absence of all of the signs in other organs militates against the theory that hypertension itself was a serious medical problem.

48 The applicant's case is based on the proposition that the deceased was hypertensive. There was emotional stress at work. It is submitted that there is a link between stress and hypertension. There is a further link between hypertension and the formation of a saccular aneurysm. There is a link (by analogy) between hypertension and atherosclerosis.

49 It was submitted by the applicant that Dr Hallpike's evidence on the balance of probabilities discharged the onus of proof resting on the applicant.

50 The applicant also submitted that the combination of the evidence of Dr Hallpike and Professor Burns even if Professor Burns' evidence went no further than a "possible" contribution from employment, when taken with all the other evidence of stress, particularly from the family was sufficient to lead to the conclusion of an employment contribution, on the balance of probabilities ie that other evidence when coupled with medical evidence discharges the onus of proof.

51 It is an unenviable task to have to choose between the opinions expressed by two physicians as eminent learned and distinguished as Dr JF Hallpike and Professor Richard Burns, both of whom have been leaders in their profession for decades.

53 I am persuaded on balance Professor Burns' view should be adopted. I do so because:-

1 His views on the relationship of atherosclerosis and saccular aneurysms which is contrary to that of Dr Hallpike's theory albeit by analogy, represents the current state of thinking among neurologists as evidenced by standard text books from eminent authors.

2 His personal view of the role of hypertension in aneurysm formation also coincides with that of the leading text books.

3. His clinical findings confirmed by Professor Sage, is that the physical evidence from angiograms does not support the relationship of atheroma to saccular aneurysm. "The vessels are usually pristine. Atheroma is not something we see."

I find that to be very persuasive. It is evidence having the weight of neurological learning combined with clinical findings.

54 Professor Burns' view that there is no role for atheroma in the rupture of saccular aneurysms is supported by the standard text on the subject.

55 Dr Hallpike's views are supported by some studies. However studies themselves do not represent currently accepted views on the subject.

56 Studies are the findings of a series of observations. In the passage of time they may or may not underpin a view that is generally accepted. However, by their very nature they simply report the results of one set of circumstances of what the study found.

57 I find the views of Professor Burns on the role of stress to be persuasive. Particularly his difficulty defining stress and the even greater difficulty of measuring stress and the further difficulty of measuring the impact thereof on an individual.

58 I found Professor Burns' discussion of the role of the deceased's blood pressure condition balanced and penetrative and clearly the subject of careful analysis.

59 I have considered the applicant's submission that a medical possibility can be elevated to a probability if all of the evidence is exhausted. That is trite law. The New South Wales Court of Appeal in Sydney County Council v Furner BC 9101649 per Hope JA is a unanimous decision:-

"To establish that a particular matter could not be excluded as the cause of an injury would seem to establish a possibility, rather than a probability."

"If all that one can say is that all causes including the relevant cause are capable of producing the event one says no more than that that it is possible that the particular cause did produce the event. To find that a particular cause cannot be excluded as the cause of the relevant injury does not establish that on the probabilities it was the cause of an injury. It may have been the cause or a cause. In other words to establish that medical evidence supports a conclusion that the cause could not be excluded as a cause of injury does not establish without more that that particular cause in fact resulted in or caused the injury."

"The onus to establish the cause of an injury on the balance of probabilities lies on the person claiming that to be the case and the mere fact that a particular cause cannot be excluded does not establish that it was the cause on the balance of probabilities. It may do so if there are other circumstances which go to establish that probability when coupled with medical evidence as to the possibility."

60 "The other circumstances" mentioned by Hope JA do not exist in this case.

62 I will deal briefly with the question of whether the disability affected the deceased qua employee.

63 CRCS had two shareholders, the deceased and his wife.

64 She is described as a "silent director". Her husband operated the business by himself. "My husband operated the business by himself ... he was the only employee. He was the business and did it all by himself. I was occasionally paid a wage ... I did not perform any employment duties ... I was paid a wage for tax minimisation purposes."

65 Mr CS Reeves (TB 263) "My father when self-employed ... was exposed to many stressful situations within the business.... As my father worked for himself.

66 My father did not allocate himself a wage. My father would take money from the bank account when he required it. ...

"The wage was determined only to ensure the best tax benefit."

67 TB 265 (Talking of the remuneration package): "There was nothing official to document this. There were no minutes, or letter of appointment, or time records to establish the package."

68 In short, the remuneration at least for disclosure to Australian Tax Office changed from year to year according to what was the most "tax efficient".

69 The deceased took from CRCS such money and benefits as CRCS could afford.

70 The common law indicia for identifying a contract of employment are:-

71 These factors are usually looked for in cases where the issue is the distinction between an independent contractor and an employee.

72 There is an air of unreality of applying the control test here. The deceased ran the company and made all of the decisions and did everything to ensure the company was financially effective and made a profit. The concept of the deceased as director controlling the deceased as manager is not easily to accept.

73 Two early cases dealt with the concept of Director/employee in the setting of AWE: Torresan v The Corporation (Happy Valley Winery Pty Ltd) A6/1991 and Linn v The Corporation (1993) WCATR 107. They do not help.

74 WorkCover v Kapsiotis A92/1994 dealt with the issue of whether there was in fact a contract of employment - it being found on appeal that the Review Officer was justified so holding on the evidence, so it turned on a point of evidence.

75 The more recent cases of Caldwell v WorkCover Corporation [2002] SAWCT 89 and Moir v WorkCover/Royal and Sun Alliance Workers Compensation (SA) Ltd (HTI Communications Pty Ltd (In Liquidation)) [2003] SAWCT 65 deal with the working director, and the capacity in which the applicant was injured - ie as a director or an employee.

76 The Tribunal in Caldwell held that the applicant's disability on the facts arose from his activities as a director, not as an employee (which he undoubtedly was as well as being a director).

78 In Moir the Tribunal found on the evidence that the applicant's disability arose from the his activity as a manager, particularly vis a vis a large staff which he managed.

79 Wallis Bruce's Outlines of Employment Law 2nd ed 1999 recognises that a person may have a dual role as a director and an employee. It says at 61 "a director becomes an employee of the company by being offered a contract of service by the company".

80 The existence of that contract of service is a matter for evidence. I doubt if it has to be in writing.

81 In Linn's case Parsons J remarked, "It may certainly be the case that an executive director of a company who performs a management role may be regarded as a worker in the employ of that company, but that is because the nature of the services of that person are over and above the directorial functions."

82 That test goes to the characterisation of the activities (as it was in Linn's case). It does not go to establish whether there was a contract of service. To use the test for that purpose would be a classic argument in a circle.

83 The test proposed in Caldwell and followed in Moir ie that it is necessary to dissect the activities of a director from the activities of management, is not appropriate in this case (that test is no different from the test which had earlier been earlier adverted to by Parsons J in Linn). It is not appropriate, because it presupposes the existence of "employment" ie a contract of service between the company and the "manager".

84 Some activities can be performed by a director - and the same performed by an employee. There is nothing magic in the nature of the duties that of themselves provide a discrimination per se between a director and employee. The enquiry must be made as to whether there was a contract of employment - express or implied.

85 I have had the advantage of reading McKinnon v WorkCover Corporation/CGU Workers Compensation (SA) Pty Ltd (2003) SAWCT 84 published 6 August 2003, after this case had concluded. It presents a factual scenario that has some similarity with the present case. McKinnon was decided on an estoppel point that did not arise in this case, but the issue of an owner operated family company was considered.

86 In this case the remuneration arrangement was similar. Here it seems to have been that the deceased was at liberty to take whatever funds he chose from CRCS, no doubt limited by prudence.

87 The income of CRCS was totally due to the activities of the deceased.

88 I am not persuaded that the interposition of another legal entity between the deceased and third parties ie CRCS provides persuasive evidence of a contract of employment between the deceased and CRCS. Whatever contractual agreement and the terms thereof that might be implied or spelt out of the activities of CRCS and the deceased, they are as consistent with the resultant relationship being that of Principal/Independent Contractor, as with Employer/Employee.

89 One of the indicia of non-employment is the ability or capacity of the person doing the work to control his own financial destiny ie is there scope for that person to exercise entreprenership. See Market Investigations v Minister for Social Security (1969) QBD 173 at 198.

90 The tax return being prepared in a fashion that gave a "tax efficient" outcome each year is a quintessential hallmark of entreprenership. Entreprenership is not the only test of a non-employment relationship, but in this case it is important.

92 That proposition means that the deceased worked for himself. Ie he personally performed the work. He personally enjoyed the rewards thereof. Those rewards were so dealt with in that to a varying extent they were shared with the applicant via the CRCS structure.

93 It may well be that CRCS assumed responsibility for that work in its relationship with third parties, including the ATO.

94 It may well be that CRCS was not vicariously liable in the (in this case) artificial scenario of the deceased negligently carrying out his work. However, CRCS did not have to be vicariously liable. It would have been directly liable in that case.

95 The correct analogy is with a self employed solicitor, barrister or medical practitioner.

96 Some professionals incorporate their practices for tax and liability purposes. Effective as that might be for those purposes it does not mean that their status is altered for all purposes.

97 Taxation records for 1998 and 1999 were in the Trial Book. I was not addressed on them. I would not be justified on drawing firm conclusions from them. However, at TB 331 in the deceased's return for 30 June 1998, on TB 321 for the 1999 return this appears:-

98 Probably the most can be said, is that it does not militate against the conclusion to which I have.

99 I am not persuaded that the deceased was an employee for the purposes of the Act.

100 The formal orders I make are the determination of 4 April 2000 is confirmed.

101 The compensating authority should pay the applicant's costs.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.