Marshall v Whittaker's Building Supply Co [1963] HCA 26

High Court of Australia Kitto, Taylor, Menzies, Windeyer and Owen JJ. Marshall v Whittaker's Building Supply Co [1963] HCA 26

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 7 Kitto, Taylor, Menzies and Owen JJ.

This is an appeal from a judgment of the Full Court of the Supreme Court of Western Australia. The Court, upon a case stated by the Workers' Compensation Board after the award in favour of the appellant against the respondent company, was asked in effect whether, upon the facts which it found admitted or proved, it erred in law in deciding that the husband of the appellant, who had been killed while working under contract with the respondent company, was a worker within the meaning of the Act because either the deceased was working under a contract of service or he was a worker by virtue of a special definition in s. 5 of the Workers' Compensation Act, 1912-1960 W.A.. It is there provided that the term "worker" includes "any person working in connexion with the felling, hewing, hauling, carriage, sawing, or milling of timber or firewood, or both for another person who is engaged in the timber industry or firewood industry, or both, for the purpose of such other person's trade or business under a contract for service, the remuneration of the person so working being in substance a return for manual labour bestowed by him upon the work in which he is engaged".

The Full Court decided that the Board did err in law both in regarding the deceased's contract with the respondent as a contract of service and in applying the extended definition of "worker" to him and held that upon the Board's findings of fact the deceased was not in law a "worker" for the purposes of the Act.

The relevant facts found by the Board were as follows. The respondent company was engaged in the timber industry and was the holder of a sawmilling permit covering 54,000 acres near Serpentine. The company had been required by the Forestry Department to cut back and mill all "dieback" timber and for the purpose of complying with this requirement it entered into a contract with the deceased, who was an experienced and capable timber faller with knowledge of the permit area. The contract, which was made orally, expressly provided: "(a) deceased was to fall such dieback trees on the Permit Area as were marked by a Forestry Department officer and to trim and haul the resultant millable logs to respondent's mill at Serpentine; (b) respondent was to pay deceased £3 per load hoppus measure for millable logs; (c) deceased was expected to deliver 50 loads weekly approximately." Furthermore, it was implied: "(a) deceased was to supply his own falling equipment (by custom tree fallers supply equipment such as power saws and axes personally) and also truck with power winch for hauling; (b) deceased was to find and employ a swamper at his own expense; (c) the contract should be executed in manner consistent with reputed skill and experience of the deceased, the approved usages of the industry and in complete observance of the conditions applicable to the working of the Permit Area either contained or referred to in Sawmilling Permit No. 1319; (d) the contract was to continue for an unspecified period."