MARTIN v THE GOLLIN WALLSEND COAL COMPANY LIMITED [1989] NSWCA 140

MARTIN v THE GOLLIN WALLSEND COAL COMPANY LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and PRIESTLEY JJA 31 January 1989, 1 February 1989

[1989] NSWCA 140

WORKERS' COMPENSATION — worker — deemed employment — owner driver of truck — works for many years for local council takes on exceptional Christmas job for colliery — injured whilst helping colliery workers to repair drag line — repair necessary to recommencement of trucking work — whether a deemed worker — whether injury arose out of or in the course of his employment for the colliery — whether question of law raised authorizing intervention by the Court of Appeal In law in holding that because the owner driver was an independent contractor he was outside the provisions of s6(3A) of the Workers' Compensation Act 1926; Humberstone v Northern Timber Mills (1949) 79 CLR 389 referred to; (2) (By Kirby P and Priestley JA; Samuels JA dissenting). An error of law arose in the decision of the trial judge on the second point (assuming it to be a second basis of his award) either because (Kirby P and Priestley JA) the trial judge erred in holding that it was not open to him to find that the injury arose out of or in the course of the deemed worker's employment in the sense of being incidental to it or (Kirby P) because, on the facts found, the injury necessary occurred in circumstances within the statutory expression and a contrary decision had been made; (3) Accordingly, an appeal lay to the Court of Appeal. Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 referred to; (4) The award should be set aside and the matter remitted to the Compensation Court for redetermination. Compensation Court Act 1984, s32. Workers' Compensation Act 1926, s6(3A),6(4).

Kirby P The principal issue for decision in this appeal from Herkes J in the Compensation Court is the meaning of s6(3A) of the Workers' Compensation Act 1926 (the Act) dealing with contracted workers. The subsection is the successor to s6(4), which appeared in the original Act in somewhat different terms. The original provision was repealed in 1929. In its present form the subsection was enacted in 1942.