Dog bite at a Nimbin Tourist park – in the course of employment?

Peter John Mann and Christine Violet Seymour t/as Nimbin Crystal Tourist Park v Workers Compensation Nominal Insurer [2024] NSWPICPD

Mr Shaun Brittliff (the Second Respondent) suffered an injury on 23 October 2020 when he was bitten on the nose by a dog whilst approaching a vehicle at Nimbin Crystal Tourist Park.

The park was owned by Mr John Mann and Christine Violet Seymour (the Appellants).  The Second Respondent alleged that he was employed by the Appellants alongside his partner as caretakers of the park.

The Appellants did not hold a workers compensation policy at the time and therefore a claim was lodged with the Workers Compensation Nominal Insurer (the Nominal Insurer), alleging physical and psychological injuries as a result of the incident. Liability was accepted and the Nominal Insurer paid weekly compensation and treatment expenses to the Second Respondent.

The Nominal Insurer subsequently sought reimbursement from the Appellants of compensation paid. The Appellants brought proceedings in the Commission arguing that they had not employed the Second Respondent.  They also denied that the Second Respondent was injured in the course of his employment and they denied the extent of the Second Respondent’s incapacity for work.

The dispute proceeded to the Commission which determined that the Second Respondent was employed by the Appellants, that he suffered a physical and psychological injury arising out of the course of his employment on 23 October 2020, that his employment was a substantial contributing factor to the injury leading to no capacity for work. The Principal Member ordered that the Appellants reimburse to the Nominal Insurer compensation to and on behalf of the Second Respondent. The Appellants appealed the decision which came before Deputy President Elizabeth Wood.

The Law

Pursuant to Section 4 of the Workers Compensation Act 1987 (WC Act), injury is defined to mean “personal injury arising out of or in the course of employment”. This must also be considered in terms of Section 9A of the WC Act which provides that “no compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury”.

The Relevant Grounds and Findings on Appeal

Ground A: Error of fact and law in determining the issue of the employment of the Second Respondent

• The Appellants submitted that the only conversation in relation to the engagement to carry out employment was with Ms Crossey, not the Second Respondent, which was a verbal arrangement. They also submitted that payment for work was made to Ms Crossey, not the Second Respondent, and that they had never provided any direction to the Second Respondent to carry out any work. They submitted therefore that there was no intention to create a legal relationship between the Applicant and the Second Respondent in accordance with Maatta v Owen Dwyer t/as Owen Dwyer Builders [2022] NSWPICPD 18.
• The Second Respondent submitted that he and Ms Crossey were engaged in employment on the basis of a work trial. He stated that the Appellants often hired two people to undertake the role of Park Managers. He also submitted that he was injured in the course of his employment based on diary evidence of the dog being previously banned in the park, and that his duties included checking the Park.
• On Appeal, Deputy President Wood considered that Ground A failed. Deputy President Wood stated that the question whether an employment relationship exists is a question of fact to be determined on the evidence in each case. Deputy President Wood found that witnesses had provided evidence that the Second Respondent was seen performing various tasks around the park. Deputy President Wood considered that the evidence supported that there was an arrangement with both Ms Crossey and the Second Respondent to undertake care-taking tasks and therefore there was an intention to create a legal relationship.

Ground B: Error of fact in determining that the Second Respondent was injured in the course of his employment and Ground C: Error of fact and law in determining that the employment was a substantial contributing factor to the injury

• The Appellant’s submitted that the hours of work for a caretaker were from 8:00AM to Midday and the injury occurred at 4:00PM when the Second Respondent was on his way to pick mulberries with his daughter which was not part of his duties. The Appellants submitted that the injury would have occurred regardless of any employment.
• The Second Respondent submitted that he performed a variety of tasks as needed and that employment was not confined to strict hours of work. In addition, he asserted that his intention in approaching the car where the dog was located was to carry out a duty of his employment and therefore the injury arose out of his employment, relying upon observations of Windeyer J in Government Insurance Office (NSW) v R J Green & Lloyd Pty Ltd [1966] HCA 6, [3]. He also submitted that employment was a substantial contributing factor to his injury.
• On Appeal grounds B and C failed. In relation to Ground B, Deputy President Wood found that the Second Respondent approached the vehicle where he was injured by a dog in order to inform the owner that the dog was not allowed on the premises, which was clearly an employment-related task. Deputy President Wood also found that, as the Second Respondent worked on an ‘on call’ basis and therefore the time of the injury was not relevant. In relation to Ground C, Deputy President Wood applied the observations made in Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324 as to what could be considered in the application of Section 9A of the WC Act. Deputy President Wood held that the work performed by the Second Respondent was a caretaker which involved ensuring that the park was safely maintained. Deputy President Wood found that the Second Respondent’s employment was therefore a substantial contributing factor to the injury.

Implications

The Appeal decision demonstrates that the tests under Sections 4 and 9A of the WC Act may still be satisfied in circumstances whereby, at first instance, an injured person may not appear to have been involved in an employment relationship.  Should you have any queries concerning a particular workers compensation matter, please contact our team on either (02) 4929 9333 or (02) 8297 5900.