Cagney v D&J Building Contractors Pty Ltd [2024] QDC 162

DISTRICT COURT OF QUEENSLAND CITATION: Cagney v D&J Building Contractors Pty Ltd [2024] QDC 162 PARTIES: SCOTT ANTHONY CAGNEY (plaintiff) v D&J BUILDING CONTRACTORS PTY LTD (defendant) FILE NO: ID38/2021 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: Ipswich DELIVERED ON: 26 September 2024 DELIVERED AT: Ipswich HEARING DATE: 12, 13, 14, 15, 16 February 2023 JUDGE: Horneman-Wren SC, DCJ ORDER: 1. Claim dismissed. 2. The parties are to file written submission in respect of costs, if not agreed within fourteen days. CATCHWORDS: WORKERS COMPENSATION – ENTITLEMENT TO COMPENSATION – WHO IS A WORKER OR EMPLOYEE – CONTRACT OF SERVICE OR CONTRACT FOR SERVICES – PARTICULAR CASES – OTHER CASES – where the plaintiff a trade qualified self-employed carpenter alleges he was engaged to perform ad hoc work for the defendant as a construction labourer – where the plaintiff alleges he was a “worker” as defined by the Workers Compensation and Rehabilitation Act 2003 (Qld) – where the plaintiff alleges he was an employee for the assessment of PAYG withholding – whether the plaintiff “worked under a contract” – where the plaintiff not found to be a “worker” EMPLOYMENT LAW – EMPLOYMENT RELATIONSHIP – ASCERTAINING EXISTENCE AND NATURE OF RELATIONSHIP – GENERALLY – where the plaintiff was a self-employed builder – where the plaintiff agreed to perform “cashies” – where there was no discussion between the plaintiff and defendant as to rate of remuneration or by whom the remuneration was to be paid - whether a relationship or contract of employment existed between the plaintiff and the -- 1 of 39 -- 2 defendant – where no relationship or contract of employment in place ESTOPPEL – ESTOPPEL BY JUDGMENT – JUDGMENT OR JUDICIAL DETERMINATION – GENERALLY – where WorkCover Queensland accepted the plaintiff’s application for statutory compensation – where the Workers’ Compensation Regulator confirmed the decision – where the plaintiff contends the elements for an estoppel are satisfied – whether the court can be satisfied that the decision of the Regulator has the requisite judicial nature or quality – where this element is not satisfied – whether finding that the plaintiff was a “worker” in acceptance of application for statutory compensation estopped defendant from denying the plaintiff was a “worker” in proceeding for damages – where no estoppel TORTS – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – where the plaintiff was exposed to a reasonably foreseeable risk of harm – where the risk was not insignificant –where the ladder provided by the defendant to the plaintiff to undertake the work was inappropriate for the task – where breach of duty is established TORTS – NEGLIGENCE – DAMAGE AND CAUSATION – CAUSATION – UNDER CIVIL LIABILITY LEGISLATION – GENERALLY – whether it is appropriate for the scope of liability to extend to the plaintiff’s injury – where the evidence supports responsibility being imposed on the defendant for the injury caused by the breach DAMAGES – ASSESSMENT OF DAMAGES IN TORT – GENERALLY – assessment of common law damages under Part 9 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) LEGISLATION: Tax Administration Act 1953 (Cth) sch 1 pt 2-5 Workers’ Compensation and Rehabilitation Act 2003 (Qld) ss 8, 9, 10, 11(1), 11(2), 300(1), 300(5), 305D, 546(3)(b), 541, 542, 543, 544 548A(1), 549 sch 2 pt 1 Workers’ Compensation and Rehabilitation Act 1981 (WA) ss 3(d), 53(d), 84ZA(2), 84ZC, 84ZD(1), 84ZE, 84ZF, 84ZH, 84ZN(1), 87ZB, 145D(4) 847A Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) sch 9, 12 Work, Health and Safety Act 2011 (Qld) CASES: Australian Mutual Provident Society v Chaplin (1978) 52 ALJR 407 -- 2 of 39 -- 3 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Carl Zeiss Stiftung v Rayner & Keeler Ltd (No. 2) [1967] 1 AC 853 Construction Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165 Gambaro v Mobycom Mobile Pty Ltd [2021] FCA 211 Kuligowski v Metrobus (2004) 220 CLR 363 Kuligowski v Metrobus (2002) 26 WAR 137 Narich Pty Ltd v Commissioner of Payroll Tax [1983] 2 NSWLR 597 Papua and New Guinea v Daera Guba (1973) 130 CLR 353 Scankovic v SS Family Pty Ltd & Anor [2018] QDC 54 Somodaj v Australian Iron and Steel (1963) 109 CLR 285 SS Family Pty Ltd v WorkCover Queensland [2018] QCA 296 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 ZG Operations Australia Pty Ltd v Jamsek (2022) 275 CLR 254 COUNSEL: AD Stobie for the plaintiff BF Charrington KC for the defendant SOLICITORS: McNamara Law for the plaintiff Hede Byrne and Hall Lawyers for the defendant Introduction [1] For almost 40 years the plaintiff has been a trade qualified carpenter. Of the 39 years since he attained his qualifications as a tradesman, he has for, as he described it, “nearly all of it”, worked as a carpenter. Throughout most of that period he was self-employed contracting his services to others. [2] Notwithstanding those qualifications and that work history, he alleges that on the morning of Easter Saturday 2018 he was engaged by the defendant to perform work on a building site as a construction labourer.1 He alleges he was a “worker” as that term is defined in the Work, Health and Safety Act 2011 and within the meaning of that term as defined in the Workers’ Compensation and Rehabilitation Act 2003. 1 Further Amended Statement of Claim, para 2(d). -- 3 of 39 -- 2 [3] Whether the plaintiff was a “worker” as that term is defined in the Work Health and Safety Act 2011 is immaterial because the proceeding has been conducted on the basis of the defendant being liable for damages for injuries sustained by the plaintiff as a “worker” under the Workers Compensation and Rehabilitation Act. Moreover, the case conducted for the plaintiff was limited to the plaintiff having been a “worker” within the primary meaning of that term under s 11(1) of the WCRA, not within the extended meaning of that term pursuant to s 11(2) and Schedule 2, Part 1 of that Act. [4] In essence, the plaintiff alleges that he was a “worker” because he worked under a contract, and in relation to the work, he was an employee for the purpose of assessment of PAYG withholding under the Tax Administration Act 1953 (Cth), Schedule 1, Part 2-5. [5] For reasons which follow, the plaintiff’s allegation that he was a worker must be rejected. [6] However, there is a related issue. By his reply, the plaintiff pleads that the defendant is estopped from denying that he was a worker. As will be explained, the defendant is not so estopped. It is convenient to deal with the estoppel argument first. Estoppel [7] The basis for the alleged estoppel is that WorkCover Queensland as the insurer under the WCRA accepted the plaintiff’s application for compensation under the Act. Acceptance of the application necessarily included a finding that the plaintiff was a worker as defined in s 11(1) of the Act. The defendant applied for a review of WorkCover’s decision and the Workers’ Compensation Regulator confirmed the decision of WorkCover Queensland accepting the plaintiff’s application for compensation. Inherent in the confirmation of that decision was a confirmation of the finding that the plaintiff was a “worker”. [8] The regulator’s decision,2 as it was required to do,3 informed the defendant of its appeal rights. The defendant, as the putative employer, had a right to appeal the decision of the regulator to the Industrial Commission.4 The defendant did not 2 Exhibit 31. 3 Section 546(3)(b) WCRA. 4 Section 549 and s 548A(1). -- 4 of 39 -- 3 appeal. It is on that basis that the plaintiff contends that the defendant is estopped from denying his status as a “worker”. [9] The plaintiff contends that the three elements essential for an estoppel to arise are satisfied: that the same question has been decided; that the judicial decision which is said to create the estoppel was final; and that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.5 [10] As to the regulator’s decision not being that of a court, the plaintiff called to assistance the single judgment of the High Court of Australia in Kuligowski v Metrobus.6 There the Court said: “There was no dispute about the satisfaction of requirement (3). The second review officer was not sitting as a “court” in any strict or conventional sense, but it was common ground that: ‘The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc.’7” The plaintiff’s written submissions did not address at all the judicial nature or quality of the decision. They seemed simply to assume that nature or quality. In oral submissions, counsel for the plaintiff, while admitting it was strange to describe a decision of the workers’ compensation regulator as judicial, submitted that the review application and review decision8 demonstrated the decision was judicial in the sense that “the regulator takes submissions from interested parties and makes findings of fact and makes the decision on the basis of those findings, which is sufficiently judicial, it appears, to meet the requirements in Kuligowski, and Kuligowski is in fact a good illustration of that itself, that the proceedings of the particular body under Western Australian compensation legislation seemed to be the same or even a more 5 Carl Zeiss Stiftung v Rayner & Keeler Ltd (No. 2) [1967] 1 AC 853 at 935. 6 (2004) 220 CLR 363 at 373 [22] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ. 7 Citing administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 453, per Gibbs J (as his Honour then was). 8 Exhibits 30 and 31. -- 5 of 39 -- 4 informal character, so that it should be no problem in saying that the judicial – the decision was a judicial nature”. [11] As can be seen from the quoted passage from Kuligowski, in that case it was not controversial that the earlier decision bore the necessary “judicial” quality. That is not so in this case. [12] Caution should be exercised in ascribing a judicial quality to the decision of one body or process on the basis that the decision of another body or process, thought to be similar, has been found to have that quality. A close examination of the legislation governing the body, process and resulting decision is required in each case. [13] The plaintiff’s submission set out above as to the comparable or even greater informality of the relevant review process and decision under the Western Australian legislation was made without any reference to the particular provisions of that legislation. A consideration of the relevant provisions demonstrates the contrary. The process is considerably more formal than that of review under the WCRA. [14] The regulator’s review of decisions is governed by chapter 13, Part 2 of the WCRA. Section 541 provides, relevantly, that a claimant, worker or an employer aggrieved by a decision may apply for a review. Section 452(5)(a) provides that the application for review must be made in the approved form, and must be given to the regulator. It must state the grounds on which the applicant seeks the review (s 542(5)(b)) and may be accompanied by any relevant document the applicant wants considered in the review. [15] Section 542(6) requires the regulator to give the applicant and the decision-maker written notice that the application has been received within 10 business days. [16] Section 543(1) confers upon the applicant the right to appear before the regulator in person or to be represented by another person with a view to achieving a resolution of the matter. By s 543(2), the applicant may also make representations to the regulator by telephone or another form of communication. [17] Section 544(1) permits the regulator to require the decision-maker to give the regulator within five business days all relevant information and documents in relation -- 6 of 39 -- 5 to the application within the decision-maker’s possession or any information asked for by the regulator. The decision-maker must comply. [18] A review decision must be made by the regulator within 25 days after receiving the application. By its decision the regulator may confirm or vary the decision or set aside the decision and substitute another decision. The regulator may also set aside the decision and return the matter to the decision-maker with the direction the regulator considers appropriate, but only if the regulator has considered information that was not available to or known by the decision-maker when making its decision, or the regulator believes on reasonable grounds either that the decision-maker did not have satisfactory evidence or information to make the decision or has not observed natural justice in making its decision. [19] The joint judgment of the High Court in Kuligowski v Metrobus refered to a number of the features of a review conducted under Part 3A division 3 of the Workers’ Compensation and Rehabilitation Act 1981 (WA).9 Those features included that it was intended to be speedy, informal and economical: s 53(d) and s 3(d) and s 847A and s 84ZA(2). The review officer was not bound by the rules of evidence; s 84ZD(1). There could only be legal representation if the parties consented to it; s 84ZE. Where there was a conflict of medical opinion, it was to be resolved by a medical assessment panel in an equally informal way, before which there was no right of legal representation at all: s 84ZH and s 145D(4). The court went on to set out s 84ZN(1) which provided: “Subject to this section, a decision or order of a review officer is not open to question or review in any court, and proceedings by or before a review officer may not be restrained by injunction, prohibition, or other process or proceedings in any court or by removal by certiorari or otherwise in any court.” [20] To these may be added others set out in the judgment of Malcolm CJ in the Western Australian Supreme Court of Appeal.10 Those include the review officer’s power to summons witnesses, order the production of documents, take evidence on oath or affirmation and to require persons attending before the review to answer questions: s 87ZB(1). 9 Supra at [28]. 10 (2002) 26 WAR 137 at 148 [40] to 149 [47]. -- 7 of 39 -- 6 [21] By s 84ZB(3) the review officer was permitted in the course of the review to receive in evidence any transcript or evidence in proceedings before a court or other personal body acting judicially and draw any conclusions of fact from the transcript and to adopt, as the review officer thinks fit, any finding, decision, judgment of a court or other person or other body relevant to the review. [22] A series of offences analogous to contempt of court were created by s 84ZC including, in s 84ZC(e), an offence of making in connection with a review “a statement that the person knows to be false or misleading in a material particular”. [23] The review officer was empowered to refer any technical or specialised matter to an expert and to accept that expert’s report as evidence, although required to call the expert for examination on the subject matter of the report if a party requested. [24] A review officer was empowered to make orders including such order as may be appropriate for giving effect to the review officer’s decision: s 84ZF(1). [25] When those provisions are considered, the plaintiff’s contention that Western Australian review proceedings were equally or more informal as those under the WCRA cannot be maintained. [26] In Kuligowski, the issue surrounding the privative clause in s 84ZN centred around the absence of the words “final and conclusive” which had been included in other provisions in the Act. The High Court said: “The crucial question is the construction of the language employed in s 84ZN. To provide, as s 84ZN provided, that, subject to an appeal to a compensation magistrates court on a question of law, decisions or orders of a review officer were not open to question or review in any court, was to provide that they were final – despite the non-inclusion of the words ‘final and inclusive’. Section 37(1) of the legislation considered in Somodaj v Australian Iron and Steel11 which bore some resemblance to s 84ZN, was said to provide “some confirmation” of the final character of the determination in that case.”12 11 (1963) 109 CLR 285 at 298, per Kitto, Taylor and Menzies JJ. Section 37(1) of the Workers’ Compensation Act 1926 (NSW) provided: “No award, order, or proceeding of the commission shall be … liable to be challenged, appealed against, reviewed, quashed, or called in question by any court of judicature, on any account whatsoever.” 12 Supra at 378-379 [37]. -- 8 of 39 -- 7 [27] There is no such provision containing a privative clause concerning review decisions under the WCRA. [28] The High Court concluded: “The decision of the second review officer was final because it was ‘completely effective unless and until it should be rescinded, altered or amended’.”13 [29] In my view, review decisions under the WCRA lack the finality of decisions under the Western Australian Act. I am confirmed in that view by the decision of the Court of Appeal in SS Family Pty Ltd v WorkCover Queensland14 upon which the defendant relies. [30] In that case, a claim for statutory compensation arising under chapter 3 of the WCRA was accepted. Inherent within the acceptance was an acceptance by WorkCover that the person was a worker. [31] Subsequently, the injured person brought a proceeding seeking damages at common law. In that proceeding, WorkCover contested that the injured person was a worker on the basis that he was excluded by s 11(3) and item 1(b) of Schedule 2, Part 2 because he performed work under a contract of service with a trust of which he was a trustee. WorkCover informed the injured person through his solicitor that it denied that it was liable to indemnify his employer in respect of his claim. [32] In the proceeding for damages, the injured person’s employer brought third party proceedings against WorkCover claiming indemnity. It applied for orders striking out WorkCover’s defence to the third party proceeding by which it denied indemnity and alleged it was entitled to deny indemnity on the ground that the injured person was not a worker when he sustained injury. [33] The plaintiff seeks to distinguish SS Family Pty Ltd. He submits that reliance upon the decision “is misplaced because it conflates WorkCover Queensland (the insurer) with the defendant (the employer, and putative insured). The defendant’s representatives in this action professed to act on the instructions of WorkCover, but that does not alter the fact that the action is brought against the defendant as putative 13 Ibid at [39] citing Somodaj v Australian Iron and Steel Ltd (1963) 109 CLR 285 at 298 per Kitto, Taylor and Menzies JJ. 14 [2018] QCA 296. -- 9 of 39 -- 8 employer and that is the relevant party against which the estoppel is alleged”.15 He contends that the decision in SS Family Pty Ltd says nothing about issue estoppel between a putative worker and employer.16 [34] The plaintiff contends that the decision of the Workers’ Compensation regulator was final in the sense that it was not interlocutory and was no less final because an appeal lay from it.17 He contends that there was no mechanism in the WCRA Act to revisit a previous decision, other than by appeal, which demonstrates the final nature of the decision. [35] Notwithstanding the different procedural history of the proceedings in SS Family Pty Ltd, and that its central issue was indemnity for injuries to a worker under s 8 of the WCRA Act and the use within s 8 of the term “worker” as defined in the Act, I am of the view that the reasoning of Fraser JA in that case, with which Sofronoff P and Davis J agreed, is applicable to the present proceeding. Section 8 is itself definitional. It defines “accident insurance” for the purpose of the Act. [36] Fraser JA commenced his consideration by observing that s 8 of the WCRA confines the indemnity under the statutory accident insurance to a case in which an employer became legally liable for compensation or damages in respect of an injury sustained by a worker employed by the employer.18 Earlier, his Honour had identified that “compensation” had been defined by s 9 to mean, relevantly, “compensation under this Act, that is, amounts for a worker’s injury payable under chapters 3 and 4 by an insurer to a worker”.19 [37] By contrast “damages” for which indemnity is to be provided under the statutory accident insurance is informed by the definition of “damages” provided at s 10(1) of the WCRA being, relevantly, “damages for injury sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker’s employer to pay damages to the worker”. 15 Plaintiff’s written submissions, para 23. 16 Ibid at para 26. 17 Kuligowski v Metrobus, supra at 375 citing administration of Papua New Guinea v Daera Guba. 18 SS Family Pty Ltd v WorkCover Queensland [2018] QCA 296 at [15]. 19 Supra ibid at [5]. -- 10 of 39 -- 9 [38] Fraser JA went on to observe that a worker’s rights in relation to compensation derive from the WCRA itself and are regulated under chapters 3 and 4 of the Act. His Honour observed that Chapters 3 and 4 give effect to the objects summarised in s 5(1)(a) of the Act of providing benefits for workers who sustain injury in their employment, their dependents in the event of the worker’s death, for persons other than workers and for other benefits.20 By contrast, his Honour said this in respect of damages: “Damages claims are regulated by a different part of the Act, chapter 5, which has very different objects. Chapter 5 does not create any entitlement for workers or their dependents. Instead it extensively limits the common law rights of persons to seek damages for injuries sustained by a worker. This chapter gives effect to the object expressed in s 5(4)(c) of providing ‘for the protection of employers’ interests in relation to claims for damages for workers’ injuries’ and the object expressed in s 5(5) that ‘compulsory insurance against injury in employment should not impose too heavy a burden on employers and the community’. Those expressions discourage a construction of the Act which would extend the effect of determinations implicit in an insurer’s decision to allow compensation beyond that subject matter and in a way that would enlarge the scope of the statutory accident insurance described in s 8 with reference to defined terms, including “worker”.” [39] In my view, the last quoted passage applies equally in this case. Here the determination by the regulator that the plaintiff was a “worker” implicit in the decision to allow compensation should not be extended beyond that subject matter. To permit that implicit determination to extend to bind WorkCover in a proceeding for damages at common law such as would extend liability for damages to insured persons who were in fact not workers would be to enlarge the scope of statutory accident insurance under the WCRA. [40] Fraser JA went on to observe in respect of decisions to accept claims for statutory compensation under s 134: “That section contains no indication that any determination implicit in such a decision that a person was a “worker” employed by an employer might exclude the application to s 8 of the definition of “worker” for the different purpose of deciding whether the statutory accident insurance indemnifies the alleged employer against a subsequent claim for damages by the person.”21 20 Ibid at [16]. 21 Ibid at [18]. -- 11 of 39 -- 10 [41] Again, I consider those observations apposite in this case also. [42] Then, having referred to an insurer’s entitlement to review from time to time a person’s entitlement to compensation with the potential to terminate, suspend, increase or decrease the entitlement and the entitlement for recovery of overpayment under s 170, his Honour further observed: “Those provisions seem difficult to reconcile with the proposition that an insurer’s decision to accept an application for compensation in any way alters the scope of the statutory accident insurance for compensation, much less for an alleged employer’s liability for damages.”22 [43] Having referred to powers and obligations created by ss 135, 136 and 137, Fraser JA observed: “The examples may be multiplied, but each of them appears in a provision related to compensation. Those provisions, like s 134 itself, are consistent with a decision to allow an application for compensation having effect only in relation to compensation and even then only in the absence of any review under s 168.”23 [44] Fraser JA next dealt with a contention which resonates in the plaintiff’s submissions in this proceeding; that being, that once a plaintiff has passed through the portal or gateway of seeking damages in s 237 in chapter 5 of the Act it is not contestable that the plaintiff’s claim for damages concerns an injury sustained by a “worker” as defined. [45] His Honour set out the terms of s 237(1) of the WCRA which prescribes the only persons entitled to seek damages for an injury sustained by a worker and noted that under s 233 “claimant means a person entitled to seek damages” and “worker, for a claim means the worker in relation to whose injury the claim is made” and that by s 10 “damages” is defined “in a way that confines the concept to damages for injuries sustained by a ‘worker’”. [46] His Honour observed that the persons entitled to seek damages under s 237(1)(a)(i) and s 237(1)(b) were persons in respect of whom the insurer had already allowed an application for compensation. As already discussed, inherent within allowing an application is a determination that the person is a worker. 22 Ibid at [19]. 23 Ibid at [21]. -- 12 of 39 -- 11 [47] Fraser JA went on to observe that “in every other case described in s 237(1), another provision in chapter 5 requires a decision by the insurer that the claimed damages are for an injury to a worker”.24 His Honour noted also that a number of provisions of chapter 5 “illustrate that there are very close connections between decisions by an insurer and the regulation of common law claims for damages by persons claiming to be workers who were injured in the course of their employment”.25 Notwithstanding those very close connections, his Honour concluded: “It does not follow that an insurer’s decision under s 134(1) to accept a claim for compensation (which is relevant under s 237(1)(a)(i) or s 237(1)(b), or an insurer’s decision that a person is a ‘worker’ which is made for the purposes of any of s 237(1)(a)(ii), (c), (d) or (e), justifies not applying in s 8 the definition of ‘worker’ to determine the scope of the indemnity available to the alleged employer under the statutory accident insurance against the claim for damages.26 [48] His Honour continued: “It is no part of that purpose to make an insurer’s decision under s 134(1) that a person is entitled to compensation binding upon the insurer in the different context of the alleged employer’s entitlement to indemnity against such a claim.” “To construe s 237(1) in such a way would not give effect to the statutory objects mentioned in [16] of these reasons. Nor is such construction required by the statutory text. The definition of “worker” is one of the pivotal provisions upon which the scope of the Act depends. Its use in the introductory text of s 237(1) is naturally to be understood as attracting the definition. The natural and literal construction is that each claimant for damages for injury sustained by a “worker” as defined may bring such a claim only after having obtained the decision required by the subparagraph which is applicable to such a claim. Section 237(1) does not apply to regulate a proceeding which is not for damages for an injury sustained by a “worker” as defined, whether or not a decision by an insurer under s 134(1), or under a provision in chapter 5 related to s 237(1), suggests that the proceeding is of that character. There are textual indications within each of the sub-paragraphs of s 237(1) that militate against the applicant’s construction. Each person described in subparagraph (a)(i) and paragraph (b) will previously have been the beneficiary of a determination by the insurer that the person is a worker, but under each provision a person who wishes to claim damages must also be a “worker”. Upon the applicant’s construction one of those two elements is otiose. On the 24 Ibid at [26]. 25 Ibid at [27]-[28]. 26 Ibid at [29]. -- 13 of 39 -- 12 other hand, in paragraphs (a)(ii), (c), (d) and (e), the word “worker” does not connote a person who has previously been determined by the insurer to be a worker, but those parts of s 237(1) are supplemented by other provisions requiring the insurer to decide if a person is a “worker” and each such provision is introduced by a section providing that the relevant subdivision grants applies to a “claimant who is a person mentioned in” the provision. The term “claimant” is defined in s 233 to mean “a person entitled to seek damages”. By reference to the definition in s 10 of “damages”, there is again introduced the additional requirement that the claimed damages be for an injury sustained by a “worker”. These provisions again regulate claims concerning injury sustained by a “worker” by expressing an additional requirement that the claimant obtained a decision by the insurer that the person is a worker.”27 [49] His Honour concluded: “The effect of the applicant’s construction is that an insurer is not permitted to deny indemnity against the liability of an employer to pay damages which is outside the scope of the statutory accident insurance on the ground that the claimant is not a “worker” as defined in the Act merely because the insurer earlier allowed a claim for compensation upon the basis of mistaken determination that the applicant was a “worker” as defined in the Act. That construction of the Act is not reconcilable with the definitions of “accident insurance” in s 8 read with the definitions of key terms, it does not find support in other provisions, none of which is directed to the scope of the accident insurance, and it is incompatible with the statutory purposes expressed in the Act.”28 [50] In my view, Fraser JA’s rejection of such a construction is as applicable in this case as it was in SS Family Pty Ltd. [51] The distinction sought to be made by the plaintiff on the basis of a different procedural history and that the proceeding is brought against the “putative employer” against which the estoppel is alleged, rather than the insurer, does not alter the proper construction of the Act. Without identifying the particular provisions, Fraser JA referred to the applicant employer in SS Family Pty Ltd having relied on the involvement of the insurer in pre-proceeding settlements and in the conduct of the litigation. Those provisions would include the pre-court procedures under Part 5 and those relating to the settlement of claims under Part 6 of chapter 5. They would also include those in chapter 5, Part 7 which include that a proceeding for damages must 27 Ibid at [30]-[31]. 28 Ibid at [34]. -- 14 of 39 -- 13 be brought against the employer and not WorkCover,29 and the entitlement for WorkCover to conduct for the employer all proceedings taken to enforce the claim or to settle any matter about the claim.30 [52] In respect of such provisions, Fraser JA observed: “… but those provisions are generally analogous to common contractual and common law rights of insurers.”31 [53] The distinction which the plaintiff seeks to make here would result in a construction of the Act which would deny to a putative employer the right to defend a claim for damages at common law by denying liability on the basis that the injured person was not a worker because the insurer or regulator had allowed an application for statutory compensation, but permit the insurer to deny liability to indemnify the putative employer for its liability. I would reject such a construction. In doing so I am mindful of the basis upon which the construction issue was litigated in SS Family Pty Ltd which is illuminated by going beyond the Court of Appeal judgment to the reasons of the primary judge, Porter KC, DCJ.32 From his Honour’s reasons it is evident that it was never contended that either the putative employer or the insurer, WorkCover, was, because of the insurer’s earlier acceptance of the statutory claim for compensation (with its inherent acceptance that the injured person was a worker), to be denied the ability to deny in the common law proceeding that the injured person was a worker. To the contrary the putative employer’s contention was only that the insurer could not deny the injured person was a worker for the purposes of the putative employer’s indemnity under its policy of insurance. [54] At [18], Porter KC, DCJ said: “This is consistent with Trendbuild’s construction as explained in detail in paragraph [70] below. As explained in detail there, Trendbuild does not submit that any party (including WorkCover) was precluded from denying any allegation in the damages proceeding except whether the plaintiff was a worker who had sustained an injury for the purpose of indemnity under the Act in the damages proceedings.” 29 Section 300(1). 30 Section 300(5). 31 Supra at [33]. 32 Scankovic v SS Family Pty Ltd & Anor [2018] QDC 54. -- 15 of 39 -- 14 [55] The further explanation referred to at [70] was an exchange between his Honour and Mr Douglas KC, senior counsel for Trendbuild, the putative employer. In that exchange Mr Douglas put the putative employer’s contention in these ways as highlighted by his Honour in his reasons: “We’re not suggesting that fulfilment of the definitions in the – I should say the compensation phase – is determinative of anything in the common law claim. [The injured person] may prove liability in various ways. He may prove liability on the basis that he is or isn’t an employee – I use that in a common law sense – but he’s still qualified to bring a claim for damages, and more importantly it’s a claim for which, if proved, we would submit – if proved must be met from the fund under the Act, and in turn the corollary is that the defendant is entitled to be indemnified irrespective of the success of that claim. I mean that to the extent of the costs of defending the claim if it be unsuccessful”. [56] His Honour later observed at [98], “as noted above, [the putative employer’s] construction is that WorkCover is bound by its determination that Mr Stankovic has sustained an injury as a worker under the Act but only in respect of indemnity for the employer, not in respect of any issue in the common law proceedings.” [57] That last statement of the putative employer’s position by Mr Douglas KC as set out above is of significance because, in that case, the claim for damages was advanced on alternative bases; first, as a worker or, alternatively, as a subcontractor. The primary basis sought damages assessed pursuant to the provisions of the WCRA and related regulations. The alternative basis was a claim made under the Personal Injuries Procedure Act with damages to be assessed under the Civil Liability Act 2003. [58] There is no alternative claim in this proceeding. Indeed, at the commencement of the trial I raised with Mr Charrington KC, counsel for the defendant but instructed by WorkCover, whether there was a degree of conflict in his appearing for the named defendant given that he was representing a party to achieve the result that the party is either not liable or, if liable, not indemnified. The defendant had pleaded in its defence a denial of the existence of a policy of insurance and a denial that it is entitled to any indemnity from WorkCover Queensland for any damages.33 33 Defence, paras 3(d) and (e). -- 16 of 39 -- 15 [59] Mr Charrington had earlier informed the Court that “the defendant named entity had no interest in embarking upon separate proceedings such as a third party claim against WorkCover, which would ordinarily be the case in a situation of this kind”. [60] Notwithstanding having been informed in that way at the commencement of the trial, at its conclusion, on the final morning before hearing addresses, Mr Charrington informed the court that he was then aware, as he had not been three days earlier, that the plaintiff had in fact commenced separate proceedings for damages under the Personal Injuries Proceedings Act. The late revelation of those other proceedings circumscribed the way in which the parties structured their submissions on liability, restricting them only to the provisions of the WCRA. This will have a bearing on factual findings I will make, restricting them, so far as I can, to determining whether the plaintiff was a “worker” as defined. As I explained to the parties at the time that this arose, however, determining whether the plaintiff and the defendant did or did not have a relationship of employment, may require a conclusion as to the true nature of their relationship. [61] For present purposes, it should merely be observed that in SS Family Pty Ltd, it was not in contest that to succeed on that part of his claim in which he sought damages for injury sustained as a worker, it was for the injured person to prove that he was a worker. Nor was it in any contest that, as against the injured person, neither the putative employer nor the insurer was precluded from arguing that he was not a worker notwithstanding the finding that he was a worker inherent in the insurers allowing of his claim for statutory compensation. [62] In my opinion, to the extent that the earlier decision of WorkCover that the plaintiff in this case was a worker is final, it has that quality of finality only in respect of that part of the Act to which that decision was relevant; compensation under chapters 3 and 4. [63] The defendant is not estopped from denying Mr Cagney was a worker. Was Mr Cagney a worker? [64] The plaintiff sought to establish that he was a worker as defined by s 11(1)(a) of the WCRA. He disavowed any reliance upon s 11(2) and the extended definition of “worker” in schedule 2, part 1 of the Act. -- 17 of 39 -- 16 [65] Section 11(1) provides: “11 Who is a worker (1) A worker is a person who – (a) works under a contract; and (b) in relation to the work, is an employee for the purpose of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cwlth), schedule 1, part 2-5. [66] Thus, for the plaintiff to have been a worker he must have been working under a contract and, in relation to the work, and in relation to the work an employee for PAYG withholding purposes. [67] It was common ground that whether the plaintiff was a worker turns on whether he was an employee of the defendant. [68] In two recent decisions the High Court has considered the proper approach to determining the existence or otherwise of an employment relationship. In each, however, the determination was to be made in circumstances in which the terms of the parties’ relationship had been comprehensively committed to a written contract.34 [69] In the present case, the terms of any contract are barely ascertainable at all, let alone comprehensively committed to writing. [70] In considering Stevens v Brodribb Sawmilling Co Pty Ltd35 in which Mason J had said “It is the totality of the relationship between the parties which must be considered”, the plurality explained: “But this statement was made in the context of a discussion the point of which was to emphasise that the right of one party to control the work of another was ‘not … the only relevant factor’. It was not an invitation to broaden the enquiry beyond the contractual rights and duties of the parties. Importantly, Stevens was not a case where the parties had committed the terms of their relationship to a written contract. In this respect, Stevens stands in obvious contrast to cases like Chaplin and Narich – and the present case.” 34 Construction Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165 per Kiefel CJ, Keane and Edelman JJ at [43], [45], [47] and [55]; and ZG Operations Australia Pty Ltd v Jamsek (2022) 275 CLR 254 per Kiefel CJ, Keane and Edelman JJ at [8]. 35 (1986) 160 CLR 16. -- 18 of 39 -- 17 [71] Given the very limited extent to which the terms of any agreement between the plaintiff and the defendant are ascertainable, this case stands in even more obvious contrast to Narich Pty Ltd v Commissioner of Payroll Tax36 and Australian Mutual Provident Society v Chaplin37. [72] Indeed, in the present case, the totality of the relationship between the parties was of such limited detail and duration that there is very little from which to discern its characterisation. From that limited detail and duration, for reasons I shall explain, I am comfortably satisfied that the relationship was not one of employment. [73] Notwithstanding the contrast between this case and those in which there is a comprehensive written contract, the analyses of the plurality of Kiefel CJ, Keane and Edelman JJ and in the joint judgment of Gageler and Gleeson JJ who agreed with the plurality in the result, but for different reasons, provide guidance for the reasoning which leads me to conclude that the relationship between the parties was not one of employment. [74] In rejecting a “multi-factorial test” as being “apt to generate considerable uncertainty”38 the plurality expressed preference for an “own business/employer’s business” dichotomy which “has long been recognised”.39 Their Honours observed, at [39]: “While the ‘central issue’ is always whether or not a person is an employee, and while the ‘own business/employer’s business’ dichotomy may not be perfect so as to be of universal application for the reason that not all contractors are entrepreneurs, the dichotomy usefully focuses attention upon those aspects of the relationship generally defined by the contract which bear more directly upon whether the putative employee’s work was so subordinate to the employer’s business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise. In this way, one may discern a more cogent and coherent basis for the time honoured distinction between a contract of service and a contract for services than merely forming an impressionistic and subjective judgment or engaging in the mechanistic counting of ticks on a multi-factorial checklist”. 36 [1983] 2 NSWLR 597. 37 (1978) 52 ALJR 407. 38 (2022) 275 CLR 165 at [33]. 39 Ibid at [36]. -- 19 of 39 -- 18 [75] By the time Personnel Contracting reached the High Court any notion that the contracted person was carrying on his own business was disavowed there having been findings at first instance and on appeal that he could not sensibly be said to have been carrying on business on his own account, which the plurality observed was “plainly correct”.40 [76] For reasons which will be addressed, the own business/employer’s business dichotomy is a live consideration in this case. [77] The plurality also considered the issue of control. They observed: “Like the ‘own business/employer’s business’ dichotomy, the existence of a right of control by a putative employer over the activities of the putative employee serves to sensitise one to the subservient and dependent nature of the work of the employee, so as to assist in an assessment of whether a relationship is properly to be regarded as a contract of service rather than a contract for services.”41 [78] There are, of course, two elements to control; the right to control the work to be done, and how it is to be done.42 [79] In their joint judgment, Gageler and Gleeson JJ referred to the “two tiered structure” of “the relationship established and maintained between employer and employee under a contract (of employment)”. They described that structure, citing Freeland, The Contract of Employment (1976) at 20 as quoted in Commonwealth Bank of Australia v Barker: “At the first level there is an exchange of work for remuneration. At the second level there is an exchange of mutual obligations for future performance. The second level – the promises to employ and be employed – provides the arrangement with its stability and with its continuity as a contract. The promises to employ and to be employed may be of short duration, or may be terminable at short notice; but they still form an integral and most important part of the structure of the contract. They are the mutual undertakings to maintain the employment relationship in being which are inherent in any contract of employment properly so called.” 40 Ibid at [68]. 41 Ibid at [73]. 42 Ibid at [75], [76] and [77]. -- 20 of 39 -- 19 [80] Their Honours emphasised that the continual relationship of employment as distinct from the contract under which the relationship is established or maintained,43 observing: “Whether a continual relationship for which a contract might make provision actually exists at any given time is a question of fact.”44 [81] Their Honours observed: “Where a continual relationship under which work is done by an individual in exchange for remuneration in fact exists, the characterisation of that relationship as one of employment or service, on the one hand, or one of hirer and independent contractor, on the other hand, has long been understood to turn on one or other or both of two main overlapping considerations. The first is the extent of the control that the putative employer can be seen to have over how, where and when the putative employee does the work. The second is the extent to which the putative employer can be seen to work in his or her own business as distinct from the business of the putative employer. Factors relevant to that second consideration have been said to include, but not to be limited to, ‘the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision of holidays, the deduction of income tax and the delegation of work by a putative employer’.45 A third consideration sometimes identified is perhaps little more than a variation of the second consideration: it is the extent to which the work done by the putative employee can be seen to be integrated into the business of the putative employer.”46 [82] The relationship between the plaintiff and the defendant is to be discerned from the following facts. [83] The plaintiff, as described above, was a self-employed builder. Generally, he provided his services to those contracting him at an hourly rate. He charged GST to those who contracted his services. PAYG taxation instalments were not withheld by those who engaged his services. Immediately preceding this incident, the plaintiff was contracting his services to a company performing work on a building site in Greenslopes. At that time the defendant was subcontracting to the same company on the same site. I infer it was the defendant company which was sub-contracted from invoices issued in the company name and payments made to the company’s bank 43 Supra at [110]. 44 At [111] citing Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 428. 45 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 24. 46 Supra at [113]. -- 21 of 39 -- 20 account, notwithstanding that Mr Ellison was not a director of the defendant company and did not seem to appreciate the distinction between that legal entity and himself. [84] The plaintiff gave evidence of a conversation between himself and Mr Ellison at the Greenslopes site on Thursday of the Easter week. He said: “So he told you then the job site? --- He told me he had a job site and he talked to the little apprentice that was there, and he turned to the apprentice and said, ‘Yeah, I’ve got a couple of them going at the same time’. And did he on that occasion say anything to you about working there? --- He said – not in the distant future, he said may be later on, I might have something for you. Okay. And what was your reply? --- I said ‘Oh, alright then’. Okay? --- I could do with a couple of cashies. Okay? --- and that was it, I was home for the weekend then. Did he make any response when you referred to cashies? --- No. Okay. Is – talking about cashies, is that accepted terminology in the industry? --- Sometimes. Okay. And what does it mean? --- That means you get paid cash instead of hourly rate or wages.” [85] The next communication was the following day, Good Friday. It comprised an exchange of text messages as follows: -- 22 of 39 -- 21 [86] That was the extent of the contractual negotiations. There was no discussion of any rate of remuneration or of by whom the remuneration would be paid. In cross- examination the plaintiff said there was no discussion about completing a tax file declaration. When put to him that there was no discussion about supplying his superannuation details the plaintiff said: “You don’t usually worry about it if it’s one day”. When put when there was no discussion about the duration of the work he said, “as far as I knew, if was one day, and that was it”. [87] The plaintiff attended the Eastern Heights job site the following date, Easter Saturday. Mr Ellison arrived shortly afterwards. The plaintiff gave evidence of their conversation as to the work to be performed as follows: “He told me what he’d like me to do: just go up on the roof and cut the roof sheets back so the trusses, when they come on Tuesday, could go in and not make too much water damage if it did rain.” -- 23 of 39 -- 22 [88] Mr Ellison’s account of the same conversation was to similar effect: “Okay. And did you have any discussion with Mr Cagney about what work you wanted him to do that day to assist you? --- I just – I just, sort of, said, well this needs to be done, that needs to be done and we’ve got to get this done, you know, as a leading hand does. Just, sort of, you know, things need to be done. Did you tell him what specific task you wanted him to start doing? --- No, I didn’t. Okay. Did you give him, though, the job that he had to do? As in, did you tell him what job to do? --- Well, no, I didn’t him what to do. I just told him what had to be done --- Exact? --- On that job. Thank you. And what was it that had to be done by him? --- What he was doing, which the role he took on was to cut some roofing iron – 18 inches of roofing iron off the back of the roof.” [89] The plaintiff said there were three ladders on site; two six foot and one three or four foot. He described them as being of the A frame type which could not be folded out: “the most you could get out of it was six foot”. The plaintiff was “pretty sure” that Mr Ellison said “pick the best one over there”. The plaintiff said he positioned the ladder so he could get access to the roof. He described it as “a bit rickety, and there was one rubber foot missing on the bottom of it. One leg”. [90] He described the set up of the ladder as: “I had it hard against a wall so I could walk up and use the wall on the way up and put the saw that I was going to use over on the roof at the same time.” [91] He took a metal cutting saw and a nail bag up. The saw was his own. He took it from his van. He later took an extension lead from his van when the one on site was found not to be long enough. The total time on the job before the incident was about 25 minutes. When he had concluded the work he described what happened next as follows: “I lowered the saw down by the cord, and then I walked over to where the ladder was. And now that the sheets were gone out of the thing, I stepped on the top plate of the existing house, and now that the sheets had gone from there, it was a bit further across to reach, so I put my hands on the top plate – on top plate and stepped on to the ladder and then – with me left foot and me right foot was going down to the second rung and the next minute, the ladder went sideways. -- 24 of 39 -- 23 It went that way, I went the other way and I landed on the ground – or on the floor there.” [92] When on the ground he took two photographs (exhibits 4 and 5). They show clearly the injured ankle and the A frame ladder on the ground; the base near his foot and the ladder pointing to its apex directly in front of him. The plaintiff said that it was the exact position where he fell. The saw can be seen lying beside him. [93] Counsel for the defendant company proved and tendered the written contract between the company and the property owners for the performance of the domestic building work at the Eastern Heights property. The contract (exhibit 32) is a standard form Queensland Building and Construction Commission Level 2 Regulated Contract. It complies with the requirements of s 14 of schedule 1B of the Queensland Building and Construction Commission Act 1991. It provides for a total contract price of $126,440 comprising a fixed price component of $92,000 and prime cost item of $34,440. It provides a description of the building work and a schedule of five progress payments. [94] Having proved the contract, and notwithstanding the penal prohibition upon carrying out building work unless the holder of contractor’s licence, King’s Counsel for the defendant proceeded to lead evidence of some agreement or arrangement different to that set out in the contract. [95] When asked what involvement the defendant company (the holder of the licence and of which Mr Ellison was not a director) had on the Eastern Heights job, Mr Ellison answered: “It was my licence number of that job, and my role was just as a leading hand on that job”. [96] By this answer, Mr Ellison demonstrated his lack of appreciation of the nature of the corporate legal entity and its distinction from himself both as the licence holder and the contracting party. This lack of appreciation was further demonstrated by his answer to the question “was the company paid for the work it did on that property?” Which answer was “No, the company was not paid. I was paid on a cash basis for what days I was there”. He then identified a bundle of invoices issued in the company’s name to the property owner as being “for hourly rate – for hours that I worked on the site”: (exhibit 33). The first of the documents could not satisfy that -- 25 of 39 -- 24 description as it was issued on 18 March 2018 which was the commencement date of the work and it was for $6,600 as the deposit agreed in the contract. He identified the remaining invoices were for his labour on site. [97] Mr Ellison then further demonstrated his lack of appreciation of the distinction between himself and the defendant company by identifying the company’s bank statements as his own: (exhibits 34, 35 and 36). He then identified a series of deposits into the defendant’s bank account as being for payment for his labour, some of those payments can be reconciled with the invoices, others cannot. None are referable to any of the agreed progress payments under the contract. Later he would give evidence that there were other cash payments for amounts other than those which appear in the invoices. Five pages of the bank statements which are exhibit 35 are missing, so it is impossible to calculate the totality of the payments. [98] When cross-examined about the fixed sum contract Mr Ellison gave the somewhat perplexing answer: “That sum – that sum was for bank purposes only as far as I’m aware.” When asked in light of that answer if he was saying the contract was a sham he said “no, I don’t say it was a sham. It was all above board”. [99] Later in cross-examination Mr Ellison described the arrangements in this way: “The suggestion was that you did not at any point have any discussion with either Mr Lowe, or Ms Williams about how workers on site were to be paid? --- That’s not right. That – that job – that discussion was – made clear at the beginning of the job that they paid contractors, they paid an hourly rate to me and to the other workers, whoever I got there for them, and that’s how the job went along because I treated the job as – as – because I’ve known this family for a long time, I did the job as cheap as I could do the job for them.” [100] That prompted this exchange: Well, I would suggest that is simply not true because you had a lump sum contract which specified exactly how much Mr Lowe and Ms Williams had to pay? --- Yeah, but I never received those instalments and that sum to pay anyone. I’d suggest also that if Ms Williams paid any cash that that was – that cash was paid to you and to nobody else; is that right? --- That cash was paid to all the contractor – to my knowledge that cash was paid to me, to the two – to Rowan and Billy and whoever – whoever else was working there. That was an agreement with them how she paid them, whether it was a cheque or cash. I never paid anyone. -- 26 of 39 -- 25 No, as I understand your evidence, you’re saying that Ms Williams paid you cash; is that right? --- Yeah, but I never – she never paid – she paid me cash for my hours only. Never paid me cash so for me to distribute out to those boys.” [101] For her part, Mrs Lowe (nee Ms Williams) the property owner gave evidence that she was invoiced by the other trades persons such as the electrician, plumber and cabinetmaker, but not for the construction work saying “but carpentry trades, that was all under the contract”. [102] In the defence case, evidence was also called from Rowan Hogan, an apprentice carpenter with whom Mr Ellison worked at the Greenslopes construction site. He also worked on the Eastern Heights job, Mr Ellison having “… just asked if I would like to do a few extra jobs on weekends and that (he) has a contract if I wanted to do extra work”. He said he was paid $30 per hour and he was paid cash by the homeowner. This was twice the rate at which he was usually paid. [103] It would seem the purpose of the defendant in leading this evidence of other arrangements was to suggest an absence of any contractual relationship between the company and the plaintiff (or with any other individual). Any such attempt was, in my view, doomed to fail. It could succeed only if the statutorily required contract, proven by the defendant, was indeed the sham that Mr Ellison denied that it was. It is a nonsense to suggest that a second year apprentice carpenter, invited to perform work by Mr Ellison, at double his usual rate, on a job for which the company had a contractual relationship with the homeowners, was contracted to the homeowners not the company, with Mr Ellison acting as no more than an agent for the owners to put into place a contract for the performance of construction work by an unlicensed person such that Mr Hogan would be committing an offence against s 42(1) of the QBCC Act. [104] Even an acceptance that the owners paid Mr Hogan cash would not alter the contractual position. As Logan J explained in Gambaro v Mobycom Mobile Pty Ltd: “A payment so made does not mean that the employer is no longer a party to the contract of employment, much less that the obligation to pay the wage is not that of the employer. All that it means is that the employer’s obligation to pay the wage to the employee is discharged -- 27 of 39 -- 26 by the performance of that obligation by the third party. In my view therefore, the statement position in Irving is correct.”47 [105] While expressed in the context of an employment contract, the reasoning applies equally to a contract for services as it does to a contract of service. As Logan J pointed out,48 the statement in Irving, The Contract of Employment, (2nd ed, Lexis Butterworths 2019) that: “Absent agreement to the contrary, under the common law, a third party may satisfy the employer’s obligation to pay wages if the payer’s intention is to discharge that obligation and the payment is made on behalf of the employer” is based upon what was said of the general statement as to the position between debtor and creditor at common law when a debt is paid by a third party in Goode on Commercial Law (4th ed, Lexis Nexis and Penguin Books, 2010). [106] Insofar as this evidence of other relationships was an attempt to give character to the existence or nature of a relationship between the plaintiff and the defendant, or the absence of any such relationship, it was an ill-conceived distraction. [107] In my view, the following conclusions are to be drawn from the communications and circumstances of the engagement of the plaintiff and his performance of work on site for 25 minutes that morning. [108] The defendant company, as a licensed building contractor, had a contractual obligation to perform the building work for which it had entered into a contract with the homeowners. Mr Ellison, on behalf of the defendant, offered work in respect of the contracted works to the plaintiff knowing the plaintiff to be a building tradesperson. [109] The plaintiff, as a qualified tradesperson contracting in his own right for many years, accepted that offer to perform work on the building site. The mutual expectation of Mr Ellison (and thus the defendant) and the plaintiff was that the plaintiff would provide his professional trade skills in the performance of work on the site for one day only and that he would be remunerated a reasonable amount although details of remuneration were not discussed. He was subcontracting his services to the 47 [2021] FCA 211 at [42]. 48 At [37]-[38]. -- 28 of 39 -- 27 defendant. The obligation to pay that remuneration fell on the defendant it having engaged the plaintiff, there having been no discussion at all to suggest that the plaintiff was being engaged directly by the owners. Who discharged the obligation to remunerate the plaintiff and whether Mr Ellison had an expectation that that would be by the owners had no bearing upon the obligation to remunerate being that of the company. It could not reasonably be argued that in the absence of payment by the owners the defendant had no obligation to pay the plaintiff. The plaintiff’s expectation, and that of the defendant, was that payment for his services would be made in cash. Not only would there be no taxation withheld from the payment to the plaintiff, the arrangement was deliberately one to avoid that. Indeed, in the plaintiff’s own words, it was a “cashie” which meant that he was to “get paid cash instead of hourly rate or wages”. One readily infers that the plaintiff expected that he would earn remuneration on which he would never pay tax. [110] The work which was to be performed by the plaintiff on the day would be that which he was directed to perform on the site by Mr Ellison (whether that be giving him a hand with the frame as referred to in the text messages or other work as directed on the site on the day). In that way, the defendant, through Mr Ellison, controlled what work the plaintiff was to perform. There was no expectation that Mr Ellison would, and no evidence that he did, control how the plaintiff would perform the work. In fact, as was expected, the plaintiff determined for himself how the work was to be performed. The plaintiff, in performing the work was engaged in his own business of sub-contract carpentry. He was not engaged or immersed within the business of the defendant. [111] There was a contract for services between the plaintiff and the defendant, not a contract of service. There was never intended to be an ongoing relationship. There was no relationship of employment. The plaintiff was not the employee of the defendant. The relationship which the plaintiff now asserts in this proceeding, namely a person performing work under a contract for which he was an employee for the assessment of PAYG withholding under the Taxation Administration Act, is the very relationship he deliberately sought to avoid when engaged by the defendant through Mr Ellison. He was not a worker under s 11(1) of the WCRA. -- 29 of 39 -- 28 [112] Those findings result in the claim having to be dismissed. However, I should make some further findings relevant to the issue of liability had the plaintiff been the employee of the defendant company. Negligence [113] It was conceded by the defendant that, had the plaintiff been its employee, it would have owed a duty of care to him and that the risk of injury to him associated with using an inadequate ladder would be foreseeable and not insignificant. [114] The issue as to liability was breach of duty or causation. Central to this issue was whether the ladder provided (although it was the defendant’s pleaded case was that it did not provide the ladder) was capable of extension.49 [115] As set out above, the plaintiff’s evidence was that the maximum length of the longest ladder available to him on site was six feet. Mr Ellison, in cross-examination, said that the A frame ladders were capable of being opened up to an extension of 3.6 metres. He said, however, that “they did. But we – but I never – I haven’t folded them out on that stage – at that stage”. [116] Similarly, Mr Hogan in evidence-in-chief gave evidence that the A frame ladder “folds out to extend to a 12 foot ladder”. He said that he used it in the extended form. In cross-examination, he said that he had used it in the extended form on the morning of the incident, before the incident occurred. [117] I reject the versions of Mr Ellison and Mr Hogan. Mr Ellison’s evidence struck me as recent invention; not least because it formed no part of the defendant’s pleaded case that a ladder of adequate length (that is, capable of extension) or any ladder was provided or available to the plaintiff. The defendant’s case was not opened on that basis and in evidence-in-chief he not only gave no evidence of the ladder extending, he denied knowledge of the ladder’s capability to extend. He denied knowledge of even their ownership saying when asked if he knew who owned them “no, I don’t because there are numerous trade guys coming and going and it could have been anyone’s ladder”. 49 Defendant’s written submissions para 126 in which, contrary to the pleaded case, it was submitted that the plaintiff was provided with a ladder capable of extension. -- 30 of 39 -- 29 [118] Furthermore, Mr Hogan’s evidence that the ladder had been used in its extended form on the day of the accident, but prior to it, was inconsistent with the evidence of Mr Ellison that the ladders had not yet been used in their extended form. [119] Furthermore, Mr Hogan’s evidence that he had used the ladder on that day in that extended form does not sit well with the plaintiff having been tasked with the work he was performing shortly after 7.00am and immediately commencing that work by using the ladder. [120] If one were to accept Mr Hogan’s evidence of prior use of the extended ladder, one would be led to conclude that the plaintiff, as an experienced tradesperson, would not only fail to recognise that the available ladder could be extended to twice its length so as to better gain access and egress to and from the roof, but may have even halved its length before climbing onto the roof. [121] Of course, it forming no part of the defendant’s pleaded case, it was not put to the plaintiff that he could have extended the ladder. Indeed, the cross-examination of the plaintiff was conducted on the very basis that he was an experienced tradesperson who would not have put himself at risk by using a ladder he felt was inappropriate. It is fanciful to suggest that he would not extend the ladder or, worse still, having found it extended through earlier use that day by Mr Hogan, halve its length, before putting it to use. [122] The other aspect of the defendant’s case by which it sought to avoid liability was that the plaintiff’s fall did not occur as he alleged. Rather than the ladder having “gone sideways” and fallen, the plaintiff’s foot slipped from the rung of the ladder. That was the defendant’s pleaded case, the slip alleged to have been because he was wearing inappropriate footwear.50 The plaintiff was cross-examined in accordance with that pleaded case. It was put to him that his right foot slipped and fell through past the rung of the ladder and he fell taking the ladder down with him. The plaintiff denied that this was how the fall occurred. [123] The defence case was opened on the basis that Mr Hogan was about 10 metres from where the fall occurred and “to his observation Mr Cagney’s foot appeared to go through one of the rungs, and he simply fell from the ladder”. Mr Hogan did not, 50 Defence para 5(f). -- 31 of 39 -- 30 however, give that evidence. To the contrary, he said that he had heard the accident, but did not see it. [124] There is no reason for me not to accept the evidence of the plaintiff as to how the fall occurred. There is no evidence to support the alternative thesis put forward by the defendant. Furthermore, had the plaintiff’s foot slipped from the rung and through the ladder, as it was put to him, it is probable, in my view, that the plaintiff and the ladder would have become entangled in the fall. That is not what can be seen in the photographs. The photographs are consistent with the ladder having gone sideways and the plaintiff having fallen as he described. There is not, as submitted for the defendant, equally probable competing hypotheses. [125] In terms of s 305D of the WCRA, factual causation has been proven. The plaintiff fell because the ladder available to perform the work he was assigned was inappropriate for that task. It was not a ladder capable of extension. Mr Ellison had assigned that work which required a ladder to access the roof and to climb down from it. He had told the plaintiff the previous day that the only tools he would require was a nail bag. Having tasked him with that work on the roof, the use of an available but inappropriate A-frame ladder was inevitable. [126] In terms of s 305D(1)(b) it is appropriate for the scope of liability to extend to the injury so caused. [127] Had the plaintiff been a worker, the defendant would have been liable for his injury. DAMAGES General damages [128] The main contest in respect of this head of damage is whether the plaintiff’s injury falls within item 140 “extreme ankle injury” or item 141 “serious ankle injury” within schedule 9 to the Workers’ Compensation and Rehabilitation Regulation 2014. The plaintiff contends the former; the defendant the latter. Both point to the 13 percent whole person impairment assessed by Dr Morgan. The plaintiff summarised his injuries in this way: “Queensland Ambulance attended the accident scene. The plaintiff was transported to the accident and emergency department of the -- 32 of 39 -- 31 Ipswich General Hospital where he was examined and admitted. He was referred for an imaging which demonstrated closed displaced fractures involving the distal thirds of the right tibia and fibula. A short leg plaster cast was applied. He initially mobilised with crutches. He was later discharged and tendered for outpatient follow up. He was referred for further advices of an orthopaedic surgeon. Further surgery occurred in the form of removal of metal wear, and patella arthrodesis (involving the fusion of the joints between the tibia and fibula, and talus, and calcaneum). He remained an inpatient for two days. He was discharged in a moon boot which he wore for some six weeks. Other treatment included analgesia, rest and a regime of physiotherapy and hydrotherapy. The plaintiff continues to complain of ongoing right ankle discomfort with throbbing discomfort of a near constant nature. This is eased by rest and elevation. The plaintiff has difficulty standing and walking, and walked with an external rotation attitude of his right lower limb to avoid dorsiflexion of the ankle. He can no longer jog or run and frequently uses a walking stick for support when walking. The plaintiff experiences ongoing difficulties with everyday chores such as domestic cleaning and cooking. He struggles to operate the peddles to drive his car. He has difficulty completing toilet transfers.” [129] To that might be added that he has lost the enjoyment of a former recreation in playing softball. [130] In his report, Dr Morgan also notes that he has a 1 centimetre leg length discrepancy with the right lower limb being shorter than the left lower limb. [131] In my view, the injury, although undoubtedly serious, falls within the description of injuries in item 141 rather than 140. The plaintiff’s submissions at paragraphs 39 and 40 concede that some, but not all, aspects of the examples in item 140 are present. The assessed 13 percent impairment also fits more easily within item 141. That said, given the extent of the residual deformity and the difficulties posed, I would place the injury within the upper end of the ISV range for that item. I would assign an injury scale value of 18. Accordingly, under schedule 12, I would calculate general damages at $31,060. Past economic loss [132] The plaintiff calculates past economic loss by projecting his average weekly earnings based upon the last full year of income (2016-2017) of $70,928. The defendant on the other hand uses the average of the last three full years of income; (2014/2015, -- 33 of 39 -- 32 2015/2016 and 2016/2017) of $47,328, $37,300 and $70,928 respectively. The defendant’s approach, in my view, deflates the earnings in more recent times. The plaintiff’s 2016/2017 earnings were, for example, almost double that of the previous year. [133] Based upon the $44,252 earned in the 29 weeks of the 2017/2018 financial year to the date of the injury the plaintiff had been earning gross average weekly earnings of $1,134. That compares reasonably consistently with gross average weekly earnings of $1,364 in the preceding year. The average of these two figures is $1,249. In my view, that is an appropriate starting figure. [134] Net earnings would be $53,372.90 ($64,948 – ($5,092 + ($19,948 x .325)). Resulting in a net weekly amount of $1,026.40. To the date of trial, a period of 255 weeks, I would assess past economic loss at $245,953.21 being $261,732 less actual earnings of $15,778.79. [135] The residual figure for the purposes of calculating interest would be $98,256.74 after deducting workers’ compensation and Centrelink benefits of $147,696.47.51 Fox v Wood [136] This sum was agreed at $31,370.22. Future economic loss [137] This is a difficult head of damages to assess in this particular case. The plaintiff has demonstrated some capacity for work in the carpentry trade. In my view, however, one needs to be cautious about the extent to which he might be considered able to continue in any such work. Dr Morgan in his report when asked “to what degree does our client’s impairment affect his ability to undertake the tasks required of him in his chosen field of employment?” answered “bipedal ambulation will always be difficult and work as a carpenter will be intolerable”. [138] That assessment, in my view, suggests that any ongoing capacity to engage in carpentry activities must be very guarded. Furthermore, the difficulty with bipedal 51 The plaintiff used a figure of $120,739.74 for “WorkCover benefits paid” which did not take into account Centrelink payments. I have been otherwise to reconcile that figure. The defendant used $136,830 which did not take into account the further amount of $10,866.47 in Centrelink benefits which appear on page 2 of exhibit 7. -- 34 of 39 -- 33 ambulation would impact upon many other potential work activities save for the purely sedentary. That view is further supported by Dr Morgan’s other observations that: “Mr Cagney’s future remunerative prospects have been severely adversely affected. It is unlikely that he will make an effective return to work as a carpenter. With a retraining programme, he could theoretically work in a sedentary environment performing office, clerical or administrative duties.” [139] The occupational therapist, Natalie Foxcroft, identified employment options and recommendations which included estimator; TAFE teacher/trade assessor for carpentry; carpenter joiner in a domestic setting e.g. installing cabinetry, installing locks, repairing fixtures and fittings; site supervisor/trade supervisor; shutter installer; workplace, health and safety officer; administrative officer/data entry clerk; retail assistant e.g. hardware store; car park attendant; storeperson for light items e.g. clothing, confectionary. [140] She identified the need for retraining including acquiring computer skills to enable the performance of such work. Given Dr Morgan’s opinion, I would have significant reservations about the plaintiff’s capacity to perform many of the identified tasks given his opinion as to the plaintiff’s bipedal ambulation restrictions. [141] I should record that I considered the evidence of the occupational therapist Evelyn Ross called in the plaintiff’s case unhelpful as Ms Ross appeared particularly partisan and an advocate for the plaintiff. [142] The plaintiff’s approach to future economic loss is to project a notional weekly loss of $1,080 with a $200 per week deduction for residual earning capacity projected over seven years to the plaintiff’s normal retirement age with a 10 percent discount for contingencies. The plaintiff’s calculations on that basis result in an amount of $245,044.80. If I were to adopt that approach, the figure I would calculate would be something less because of a slightly lower average weekly earnings which I have calculated as set out above. -- 35 of 39 -- 34 [143] By contrast, the defendant’s approach is that a lump sum figure of $100,000 is appropriate. The defendant identifies the difficulty to accurately discern future economic loss in circumstances where: (a) He has demonstrated some residual capacity for physical work associated with carpentry; (b) The preponderance of the medical evidence supports a capacity for sedentary work; (c) Vocational options to which he is suited have been identified by Ms Foxcroft and Dr Morgan; (d) The plaintiff has not made any meaningful attempt to retrain, especially by undertaking basic computer tuition; (e) The plaintiff has a demonstrated history of reporting long term incapacity for work which then resolved quickly enabling a return to full duties, after settlement of the damages claim. [144] In my view, little if anything should be made of the two earlier occasions when the plaintiff had suffered an injury to his right lower limb and then returned to full work activities. Too little is known about the particular circumstances of any such earlier settlements but, moreover, accepting Dr Morgan’s opinion, which I do, such a recovery and return in this instance, should be discounted. [145] On balance, I prefer the approach of the defendant that a lump sum for future economic loss is appropriate. However, I would assess that figure at $150,000. Representing a little over $20,000 per year or about $400 per week for the remainder of his working life. Special damages [146] This head of damage is agreed at $58,108.49 with interest calculated at $587.80. Future special damages [147] The defendant contends for an award of $7,500 using a weekly figure of $13, on the 5 percent actuarial tables for 26 years and applying a 25 percent discount to reflect pre-existing right ankle injuries. The items comprising the $13 per week are analgesic -- 36 of 39 -- 35 medications of $12 per week and $1 per week for the provision of a heel raise for his right shoe and the supply of Sigvaris surgical stockings to limit oedema as identified in Dr Morgan’s report. [148] In limiting future special damages to those matters, the defendant submits: “The issue of the plaintiff’s quick recovery from his 2012 injuries after settlement permeates this head of damage. It is submitted that only the ongoing use of analgesic medication is required, and the heel raise insert and Sigvaris stocking referred to by Dr Morgan.” [149] For the reasons set out above, I do not consider that those historic matters should permeate an assessment of damages in this proceeding. That said, I consider a number of the amounts claimed by the plaintiff unsupported by the evidence. [150] An amount of $6,127 is sought for his participation in “a multi-disciplinary, cognitive behaviourally based clinic” which, in the opinion of Ms Ross, “Mr Cagney continues to require attendance at”. It is submitted on his behalf that he has said that he would be interested if funding were available. Two things ought be observed. First, the basis for Ms Ross’s opinion as to the continued requirement for his attendance at such a clinic is undeveloped. Secondly, to the extent that the plaintiff expressed interest his evidence was: “There’s also an occupational therapy recommendation for attendance at a pain management programme; do you know what that is? --- No. Okay. It’s a form of medical treatment. Would you approach that with interest? --- Mmm.” [151] The evidence concerning this claimed item is equivocal at best. I would not allow it. [152] Next, the plaintiff claims an amount of $25,690.93 for ongoing hydrotherapy at the rate of $38.69 per week over 24 years reduced by 10 percent for contingencies. It is difficult to discern the basis for that calculation. In her report52, Ms Ross says: “The claimant has found hydrotherapy of some benefit. In my view, this remains an appropriate treatment modality. Monthly sessions with a physiotherapist are required in order to direct and monitor this man’s hydrotherapy programme. In my experience physiotherapy consultations incur the cost of $100. According to enquiries at this man’s local pool, hydrotherapy pool entry is $7 per visit.” 52 Exhibit 21, para [32]. -- 37 of 39 -- 36 [153] There is no explanation provided as to why the plaintiff’s hydrotherapy requires monthly physiotherapist sessions in order to direct and monitor it. The plaintiff gave no evidence of any association between former physiotherapy and former hydrotherapy. He gave this evidence: “Did Dr Moxon then make a recommendation as to further treatment? --- Yeah. He said we will start physio and hydrotherapy for you and started that, and I was – every two months, I would go back to see Dr Moxon, and he will write reports to WorkCover. I go to physio once a week and hydrotherapy twice a week, and then about March, it wasn’t improving, it was still sore, and he said --- Was that March of 2019? --- yes it was. Yes – yes. Did the hydrotherapy and physiotherapy do you any good? --- Yeah. It – it – yeah. You could run in the pool. Well – well, you know, trot in the pool. You know, do a lot – a lot of things in the pool than what you could normally. Physio, he’d done about as much as he could, but he said, oh, it’s good to come in, and, you know, we will relax your ankle a little bit and things like that ---"53 [154] Later in his evidence he said that he had not had hydrotherapy treatment since WorkCover stopped payments a couple of years earlier.54 [155] Based upon that evidence, I would allow the cost of hydrotherapy at $7 per week projected into the future, over 24 years at a multiplier of $737.8. After discounting by 10 percent for contingencies that would result in an amount of $4,648.14. [156] The next item claimed is in respect of the electronic recliner chair which the plaintiff now uses a continual basis. At the time of giving his evidence, he had replaced it approximately a year earlier at the cost of about $2,500. I accept that his use of the chair is considerably increased as a consequence of his injuries. I would not, however, allow the total ongoing cost of replacing it. The claim is made at the rate of $9.62 per week, based upon $2,500 every five years. I would allow 60 percent of that which is an amount of $5.77 per week. Applying the same multiplier and discounting, that would result in an amount of $3,831.40. [157] The residual ongoing expenses of 0.76 cents per week, again applying the same multiplier and discount for contingencies would result in $504.66. 53 Transcript 1-23 ll 30-42. 54 Transcript 1-30 ll 12-17. -- 38 of 39 -- 37 [158] I would have assessed damages on that basis. Disposition [159] The claim is dismissed. [160] The parties are to file written submission in respect of costs, if not agreed within fourteen days. -- 39 of 39 --