Holland v Annovazi [1996] NSWCC 44; (1998) 16 NSWCCR 1 - Title (20 December 1996)

[1996] NSWCC 44; (1998) 16 NSWCCR 1

HOLLAND v ANNOVAZI

t/as MERRIVALE PROPERTY MAINTENANCE

Compensation Court of New South Wales: Truss J

20 December 1996

Workers compensation - Persons entitled to compensation - Deemed worker - Tree surgeon - Provided services in towns and cities in the course of carrying on a trade or business - Not a rural tree feller - Not a deemed worker - Workers Compensation Act 1987, Sch1, cl3 - Interpretation Act 1987, s35(2)

J. Wynyard, for the applicant

G.M.N. Farkas, for the respondent

Cur adv vult

1 TRUSS J: The applicant claims weekly payments from 29 April 1994 together with lump sums under ss66 and 67 in respect of permanent loss of the efficient use of both legs and of the left arm. It is not disputed that he sustained injury in the circumstances alleged on 29 April 1994. The principal issue was whether he was a worker. He relies upon the definition in s3 and in the alternative alleges that he was a deemed worker pursuant to cl3 of Sch1.

2 At the conclusion of the evidence the respondent conceded that the applicant was totally incapacitated for a period following injury and thereafter has been partially incapacitated to an extent. Quantification of his entitlement was an almost impossible task due to the applicant's failure to date to lodge an income tax return for the year ended 30 June 1994. It was therefore agreed that he would be given liberty to apply in relation thereto. Due to shortage of time on the day of completion of the hearing it was also agreed that I would first determine the worker issue and grant liberty to apply in relation to the claims under ss66 and 67.

3 The applicant was born in the United Kingdom on 2 June 1964 and is right-handed. After leaving school at the age of 16 he learned the trade of a tree surgeon and worked in that capacity in England and Germany before coming to Australia in 1991. Oral evidence was given by the applicant, the respondent and Mr Murray Bolan of Bolan's Tree Services and documentation was tendered. The evidence established:

1. After arriving in Australia the applicant worked initially more or less exclusively for Piers Laverty tree lopping, felling and trimming which involved climbing trees and by October 1992 he commenced performing services for other parties including the respondent. In the early stages he advertised in the local paper but as he became better known he relied upon word of mouth.

2. The applicant's evidence was that the respondent telephoned and asked him "to climb trees" for him. The respondent could not recall how the applicant came to perform services for him. The applicant said that the person who had previously performed the same services for the respondent had charged around $360 to $400 per day which was the normal rate but as he had limited equipment and no insurance, a rate of $250 per day was agreed. The respondent does not recall any discussion regarding insurance but said that the daily rate was determined by demand and supply and had nothing to do with insurance. He expected the applicant to carry his own.

3. The applicant had what he described as his own personal equipment comprising leg irons, harnesses, spiked shoes, climbing support and safety lines, a small chain saw and a utility. Other equipment such as trucks, larger chain saws, ropes, ladders and sometimes a crane were supplied on site.

4. The applicant issued an invoice to the parties for whom he performed the services, including the respondent, and his invoice books covering the period October 1992 to April 1994 as well as a summary were tendered. His daily rate was generally in the vicinity of $250. He said that he told each party that he had limited equipment and no workers compensation insurance. The applicant's evidence was that between October 1992 and April 1994 around 25 per cent of his work was performed for the respondent. However, Exhibit 2 establishes that during that period of 19 months he performed services for the respondent on 25.5 days.

5. No tax was deducted by the respondent nor by any of the other parties for whom the applicant performed services. He was responsible for his own tax.

6. When or whether he provided services for the respondent or anyone else depended upon work already booked. The respondent said he used the applicant's services if he was available when needed.

7. Both the respondent and Mr Bolan stated that they relied upon the applicant's expertise to bring down trees safely in restricted areas without causing damage to property. The respondent and Mr Bolan generally determined the order of work but it was the applicant who decided how a tree was to be brought down and he had the ultimate say so far as his personal safety was concerned.

8. On 29 April 1994 the applicant was working at a private residence at Davidson comprising a house and garden. The job involved the felling of two palm trees and the dismantling of two smaller trees. The first palm tree had been felled and the applicant was working on the second. He was standing on the tree using his climbing irons and wearing his safety harness removing the dead spiky fronds. As palm trees do not have branches a rope had been tied between the top of the tree and another tree and the applicant's harness was clipped to that rope. In the course of using a chain saw to remove the dead fronds he fell a distance of about 5m from the tree landing in a standing position on the ground, following which his legs gave way and he sustained a large laceration to the left arm.

4 The applicant's primary submission is that he was a worker within the definition in s3. In order to establish that he was a worker he first must establish that he had entered into or was working under a contract of service with an employer, namely the respondent. As the Chief Justice acknowledged in Connelly v Wells (1994) 10 NSWCCR 396, the distinction between an employee and an independent contractor has become increasingly amorphous in that what used to be known as the control test has given way to the application of competing criteria and indicia. His Honour stated (at 398):

The degree of control to which the person performing the work is subject is still described as a prominent factor, but is not now regarded as determinative. Other relevant matters are said to include the way in which the work is remunerated, the provision and maintenance of equipment, the arrangements that are made about hours of work and provision of holidays, the obligation to work, the arrangements that are made about taxation, and the capacity to delegate the work.

5 Counsel for the applicant relied upon the dicta of Kirby P (as he then was) at 764 in Articulate Restorations & Development Pty Ltd v Crawford (1994) 10 NSWCCR 751.

6 For the reasons enumerated below I have come to the view that there was no contract of service between the applicant and the respondent. In my view the evidence establishes overwhelmingly that the applicant was an independent contractor carrying on the trade or business of a tree climber who made himself available to whoever wished to hire his services.

1. For the 18-month period preceding the date of injury the applicant performed services for about ten other parties in addition to the respondent.

2. He was remunerated by the respondent on the basis of a daily rate in respect of which he issued invoices which generally made reference to a day, proportion thereof or more than one day's "contract tree climbing service" and supply of equipment itemised in the invoice, generally including chainsaw, harness, ropes and rigging gear.

3. He was paid upon presentation of invoice and no tax was deducted by the respondent.

4. He had no entitlement to holiday pay, annual leave, sick leave and the like.

5. He supplied his own tree-climbing equipment.

6. His services were not always available to the respondent and his availability depended upon previous arrangements with other parties. He had the capacity to refuse a particular job.

7. He was able to stipulate matters in relation to the jobs, for example on one occasion with the respondent, the provision of a crane.

8. He had control over the manner in which the trees were dismantled and directed the persons working on the ground, including the respondent, during the course of such procedure.

7 In reaching this conclusion I have had regard to the matters referred to by counsel for the applicant in his written submissions namely that the applicant's profession was one requiring both special expertise and equipment and the fact that although the applicant had control when he was "in the air" the respondent had the overall control of the site.

8 In the alternative the applicant alleges that he is a deemed worker pursuant to cl3 of Sch1 entitled "Rural work" and alleges that he was engaged in the work described in cl3(1)(b) namely:

The work of felling or ringbarking trees, or cutting scrub, or hauling or loading timber.

9 The respondent submitted that the felling of trees in a suburban backyard does not constitute "Rural work" and that the types of work described in the various subclauses cannot be taken in isolation and must be viewed as being classes of rural work.

10 Having regard to s35(2) of the Interpretation Act 1987, the heading "Rural work" shall be taken not to be part of the Act as subss(3) and (4) do not apply.

11 Cl3 of Sch1 is essentially a re-enactment of s6(5) of the 1926 Act. This subsection had been amended frequently and the history of the various amendments is referred to at 173 - 175 of C.P. Mills Workers Compensation (New South Wales) 2^nd ed (1979) and was also recounted by Kitto and Windeyer JJ in McNamee v Partridge [1959] HCA 43; (1959) 101 CLR 384. At 399 Kitto J stated that he considered that subsection referred only to contracts for recognised forms of work done in the country or on the outskirts of cities.

12 In Veneer & Timber Products Pty Ltd v Yarnold (4 August 1995, unreported) the Court of Appeal was required to consider cl3 in the context of the death of a timber cutter. At 5 Kirby A-CJ, with whom Rolfe and Bainton A-JJA agreed, stated:

Counsel for the appellant accepted that the foregoing statutory provisions were provided, as their predecessors had been, to afford special protection to workers in rural work. Specifically they were enacted to protect those workers engaged in the felling of timber. By reason of the nature of the timber industry, the organisation of its employment and the securing and maintenance of insurance within it, Parliament has seen fit to provide special protections to workers so engaged. By shifting the obligations to principals ... Parliament has instituted a scheme to ensure, in the ordinary case, that the workers of contractors engaged in the often dangerous work of timber felling will ordinarily have an effective insurance cover for entitlements under the Act ...

13 In these authorities and in those referred to in Mills, the court was concerned primarily with the nature of the transaction rather than the nature of the work, that is whether it was "rural" or not. Counsel for the applicant submitted that these authorities have no application to the issue of whether the nature of the work performed has to be rural. He further submitted that to apply that subclause to the work being performed by the applicant in this present case would not be inconsistent with the history of the clause and its predecessor.

14 In my view it is neither helpful nor determinative of the issue to embark upon the semantics of whether the applicant was a tree climber rather than a tree feller. The fact is that on the day of injury he was engaged in felling two trees. However, in my view the Court is not entitled to take the words "The work of felling ... trees..." in cl3(1)(b) in isolation but rather that these words should be considered in the context of the clause in which they appear. In particular I have regard to the exclusion in subcl(4) in respect of timber processed in a factory and the definition of "timber" in subcl(8) to include sleepers, piles, poles and logs.

15 Further, the application of the clause should be considered in the light of its history dating from 1926. Initially the subsection was essentially limited to two types of cases, namely contracts to supply sleepers and contracts to cut sugar cane and although as a result of amendments over the years the scope has been widened, the rural context has been preserved. For this reason I do not consider it appropriate to adopt merely a grammatical approach to the words "felling ... trees" in subcl(1)(b) as this would not in my view give effect to the purpose of the clause. In Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423 and 424, McHugh JA stated that the purposive, not a literal, approach to statutory construction now prevails and that whilst the court's first duty is to determine the grammatical meaning of the terms of the statute, if such meaning does not give effect to the purpose of the legislation, it cannot prevail. His Honour also said:

Words may give colour to each other, modifying their primary meaning, and causing the whole provision to have its own unique meaning. Likewise the general objects and purposes of the statute will give colour to the individual words, phrases and provisions sometimes modifying their ordinary meanings.

16 For these reasons I have come to the conclusion that the applicant is not entitled to rely upon cl3 of Sch1 to the Act as it is a requirement of the clause that the classes of work enumerated in subcl(1) be rural, that is, pertaining to the country as distinguished from towns and cities. In my view the clause should not be construed in such a way as to impose a liability in respect of tree services in a suburban backyard.

17 There will be an award for the respondent.

Orders accordingly

Solicitors for the applicant: TD Kelly & Co

Solicitors for the respondent: PW Turk & Associates