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 The original provision was repealed in 1929.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. The Purpose of Providing for contracted workers The history and policy of the subsection have been considered in a number of cases. It is particularly useful to refer to what Dixon J said in Humberstone v Northern Timber Mills (1949) 79 CLR 389 and to what Rainbow J said in Turner v Stewardson Limited [1961] WCR 169. See also [1962] NSWR 137. Explaining the purpose and policy of the subsection, Dixon J in Humberstone, in words which have often been repeated and applied since, put it thus (at 402): The suggestion which this language conveys of the existence of a business or the practice of a trade is much strengthened in subs(6) by the words 'carried on', 'regularly' and 'in his own name or under a firm or business name'. These all indicate a business or trade conceived as independently existing or exercised by a person holding himself out to the public under a name or style. No doubt the policy is a matter of inference but it seems reasonable to suppose that it was considered proper that a person conducting a business in the course of which he contracted to perform work should himself carry the risk of personal injury as one of the hazards of his business, while the man who worked under contract but only 2 UNREPORTED JUDGMENTS for the employer or without any general trade or business or outside his trade or business should, like an ordinary employee, be insured by the Act against the risk of injury in his work." Any implication in these words of the need to show the holding out of an independent business was negatived by the later decision of the High Court in Higgins v Jackson and Others (1976) 135 CLR 174 at 176. But that apart, the words of Dixon J have stood as the classic expression of the purpose of this provision to provide compensation for contracted quasi workers. S6(3A) appears amongst a number of provisions of the Act under which persons who, although not workers under the primary definition in the Act, are extended the benefits of the Act. By inference, this is done because their relationship with the "employer" has been determined by Parliament to be sufficiently analogous to that of employment as to warrant including such persons in a class of notional workers for whom the "employer" should carry the burden of insuring them for compensation purposes and of paying compensation when an injury occurs arising out of or in the course of their "employment". The issues in the appeal There is no relevant dispute in the present appeal that the appellant was injured on 3 January 1986. Nor is it disputed that, since 23 May 1986, he has been totally incapacitated as a result. The disputes are two. The first arises from the holding in the Compensation Court that the appellant was not a person deemed to be a worker under s6(3A) of the Act. The second arises from subsidiary observations of Herkes J that, even if the appellant were a notional worker in that sense, the injuries which he suffered did not arise out of or in the course of his notional employment with the respondent. Strictly speaking it was not necessary for Herkes J, as his Honour acknowledged, to resolve the second of these questions. But in his reasons for judgment he went on to provide an opinion adverse to the appellant on the second question as well. From the award in favour of the respondent which Herkes J entered, the appellant has appealed to this Court. Appeals from the Compensation Court lie, relevantly, only on questions of law. See Compensation Court act 1984 $32. On the return of the appeal, the issues raised by the notice of appeal were narrowed to challenges to the two principal determinations to which I have referred. Expressed in different ways the first challenge alleged that his Honour erred in law, in the facts found, in holding that the appellant was not a deemed worker within s6(3A) of the Act and that he erred in the test which he applied to those facts by stating that the appellant was necessarily excluded from the application of the subsection because he was an "independent contractor". The stringency of the statutory limitation on appeals to this Court on questions of law has been stressed and commented upon in many cases. See especially Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 and compare Mahony v Industrial Registrar of New South Wales (1986) 8 NSWLR | at 3. However, that line of decisions has recognised that a qualifying question of law does not arise if, in applying a statutory provision, the judge of facts misdirects himself or herself, "ie has defined otherwise than in accordance with law the question of fact which has to be answered". (See Glass JA in Azzopardi at 156). This is what the appellant contends occurred here. The facts as found at the trial It is now necessary to say something about the facts. They may be taken as found by Herkes J. About the principal facts there was no real dispute in the appeal, the contest being about their interpretation and legal effect. URJ MARTIN v THE GOLLIN WALLSEND COAL COMPANY LIMITED (Kirby P) 3 The appellant at the time of his injury owned a tip truck and worked with it. He had done so for a number of years. He had earned what I will neutrally call his remuneration by driving the truck himself. He did not employ workers. He did not subcontract the truck driving contracts, to which I will refer. For many years the appellant worked exclusively under arrangements (again I use a neutral term) with the Moree Plains Shire Council (the Council). As found by Herkes J, his name was on a list of owner drivers who were offered work of carting gravel for the Council. The owner/drivers were offered such work in order of seniority according to a list, with an apparent respect for the position of each owner driver on the list that is familiar to lawyers accustomed to such orders of seniority. The Council paid the appellant and the other owner/drivers according to a formula based on an amount of material carried and the distance travelled. Although it was not necessary for the determination of the instant claim, Herkes J observed that: "Tn the circumstances of this case the [appellant] may well have been deemed to be an employee of the Council under the relevant subsection, had he received injury whilst carrying out his contractual obligations with it." This finding indicates that in Herkes J's opinion, at least so far as the appellant's work with the Council was concerned, the appellant was not disqualified from entitlements under the Act as a contracted worker by any of the provisions of s6(3A). Inherent in his Honour's remark was his conclusion that, in so far as he was working with the Council, the appellant was probably not regularly carrying on a trade or business in his own name, for example, as a truck driver. However, the appellant was not injured whilst working for the Council. It is this fact which distinguishes the case from many others in the series of cases decided under s6(3A). At Christmas 1985 the appellant's work with the Council ceased for some weeks. This was perfectly usual. During the shut down period the appellant was approached by a Mr Les Muggleton. Mr Muggleton informed the appellant that work was available over the Christmas period in a colliery operated by the respondent. Such work involved the disposal of waste materials from dams on the respondent's premises. It was the intention of the respondent to take advantage of its shut down to clean up its premises. The appellant and Mr Muggleton had a discussion with Mr Brian Reeves, an officer of the respondent. Mr Reeves described the proposed process of removal and dumping of waste. The respondent had engaged 2 contractor to perform the cleaning operation, Mr Bailey. Mr Bailey owned a drag line to be used for that purpose. Mr Bailey, in turn, employed a Mr Davies to assist him in his work. Mr Reeves told the appellant that he wanted the work done quickly. However, he did not specify particular hours of work. Nor did he nominate any starting or finishing times. He left it to the appellant and to Mr Muggleton to arrange the operation with Mr Bailey. Both the appellant and Mr Muggleton were to be paid thirty-five dollars per hour. They were to be paid against invoices submitted by them to the respondent. Both owner/drivers were to be responsible for their outgoings. Pursuant to this arrangement, the appellant and Mr Muggleton commenced work two days before Christmas 1985. They resumed work on 30 December 1985. They continued work until 2 January 1986. It was on the afternoon of that day that a problem first arose in the operation of the drag line. This necessitated repairs to a pin in one of the rollers in the line. Originally, the repairs were to have 4 UNREPORTED JUDGMENTS been carried out in Newcastle. However, to minimize delay, fitter welders employed by the respondent were given the task of repairing the drag line at a cost to Mr Bailey. On 3 January 1986, the appellant and Mr Muggleton arrived at the colliery with their trucks. They discovered that the repair to the drag-line had not been completed. There was, necessarily, no work which they could do with their trucks. The repair to the drag line equipment was taking place in the colliery machine shop. The appellant and Mr Muggleton normally lived in Moree, some one hundred and twenty miles from the respondent's colliery. During the operation of the colliery they were residing at a caravan park. They had offered on the previous afternoon to return home for the weekend, but "they" (by which I infer Mr Bailey and the respondent's workers repairing the equipment) said, "No, we want this job done. They are going to start it by six o'clock." It was with this encouragement that the appellant and Mr Muggleton returned to the colliery on 3 January 1986, only to find that the drag line was still unrepaired. Herkes J found that it was no part of the appellant's work that he should be required to be in the machine shop where the repair was being effected. However, the appellant did go there to observe the repairs. It was at this point that one of the fitter welders left the repair shop. The appellant then 'held a drift against a pin in the drag line roller whilst an employee of the respondent used a hammer against the drift in an attempt to effect the repair. It was whilst this employee was so acting that the hammer missed or glanced off the drift. The precise detail of how the accident occurred does not matter. The hammer struck the appellant forcefully on the forehead. It was from the injury then sustained that the appellant has suffered the incapacity for which he claims compensation. The terms of the Act and the judge's finding The issue in the appeal is whether Herkes J erred in law in holding, in the circumstances which I have recounted, that the claim for compensation brought by the appellant was outside the Act. To answer this question it is necessary first to consider the terms of s6(3A) of the Act, and the relevant authority on the subsection. It provides: "(3A) Where a contract to perform any work exceeding ten dollars in value (not being work incidental to a trade or business regularly carried on by the contractor in his own name, or under a business or firm name), or to perform any work as an outworker, is made with the contractor, who neither sublets the contract, nor employs workers, the contractor shall, for the purposes or this Act, be deemed to be 2 worker employed by the person who made such contract with the contractor." The finding of Herkes J on the first issue appears in the following short passage in his Honour's judgment. Picking up once again his conclusion that the appellant "might well" have been deemed a worker of the Council had he been injured whilst working for it, Herkes J went on: "In my opinion however, the facts in this case do not assist the applicant in establishing that he was a deemed employee of the respondent. Rather they suggest that the applicant, not having work; to do for the Council under his contract with it over the Christmas break, entered into a contract to perform similar work for a limited period with the respondent. In my view he was an independent contractor and so excluded from the provisions of s6(3A) of the Act. In these circumstances the claim of the applicant must fail." URJ MARTIN v THE GOLLIN WALLSEND COAL COMPANY LIMITED (Kirby P) 5 The appellant latched on to this reasoning to show an error of law warranting the intervention of this Court. In particular, the appellant argued that it did not follow that because the appellant was "an independent contractor" that he was excluded from the provisions of s6(3A) of the Act. I agree with this criticism. The fact that the appellant was an independent contractor is not, as such, a disqualification from the operation of the section. On the contrary, the section assumes that the claimant will be an independent contractor. Far from being a disqualification, the status of an independent contractor to the alleged employer is the very precondition which enlivens the subsection. What is a business "regularly carried on'? The disqualifications in the subsection are, relevantly: 1. That there was no contract to perform work; 2. That any such contract did not exceed ten dollars in value; 3. That the work was "incidental to a trade or business regularly carried on by the contractor in his own name or under a business or firm name"; 4. Alternatively that the contract was not to perform work as an "outworker'. 5. That the contractor sublet the contract; or 6. That the contractor employed workers. In these circumstances, having regard to the terms of the subsection, it is to misdirect oneself to introduce a notion that a relationship of the contracted worker to the "employer" of an independent contractor in some ways disqualifies the contracted worker from the operation of the section. I fully realise that a judgment is not to be analysed as if it were written in the precise language of a statute or a carefully drafted deed. Shorthand expressions may sometimes be used which involve a slip of no significance. Such slips can readily be overlooked by an appellate court. But as the decision that the appellant's claim "failed" followed immediately after the expression of the opinion that the appellant was excluded from the benefits of the section because he was an independent contractor, it is clear that this consideration weighed heavily in Herkes J's mind in reaching his ultimate opinion. It was an irrelevant consideration. It diverted his Honour's attention from the real tests relevant to this case. The real question was, and was only, whether the work which the appellant agreed to do for the respondent was incidental to a trade or business regularly carried on by the contractor on his own or in a business name. Obviously a person may be an independent contractor yet not fall within the disqualifications of the subsection because, relevantly, he did not regularly carry on trade or business in the way described. Can it be said, nevertheless, that the appellant "regularly" carried on a trade or business as a truck driver or a truck driver of particular material, sometimes for the Council and sometimes for others, such as the respondent? In the undisputed facts of this case I think not. Herkes J appears to have concluded that the work over seventeen years for the Council and its predecessor was not "regularly" carried on by the appellant in his own or in a business name as a trade or business. In his relationship with the Council the appellant appears to have been precisely the kind of quasi-worker for whom s6(3A) was enacted. In this conclusion, I agree with the tentative opinion expressed by Herkes J. Accordingly, starting from that premise, the question becomes whether by taking the shut down job with the respondent, the nature of the appellant's activities changed so that from having been a person not regularly carrying on business in his own or in a business name, he was converted to one who did so by his Christmas initiative. 6 UNREPORTED JUDGMENTS I do not consider that such a conclusion was open on the undisputed facts of this case. There was no evidence that the appellant had carried on any other work as a truck driver in his own name, still less under a business name, save for the work with the Council and the work with the respondent. The characterisation of the work with the Council is not in my opinion altered by the work which the appellant did for a limited period with the respondent. I acknowledge that what is involved is a matter of degree. If the appellant was on several occasions for several different principals to operate independently as a truck driver, that could take him outside the subsection. But it is regularity of work arrangements of that kind to which the subsection refers. Meaning must be given to the adverb "regularly". I do not consider that the negotiation of one other such arrangement will change the quality of character of the work done to one "regularly" carried out by the appellant in his own name, still less in a business name. Regularity implies in this context customarily, habitually, according to an established practice or something ordinarily done. It would not be open on the undisputed facts found by his Honour to hold that the appellant, when injured, was performing work which was incidental to a trade or business regularly carried on by him in his own name. The provision is not inapt for repeated work In a subsidiary argument, the respondent sought to support his Honour's conclusion by submitting that the reference in s6(3A) to work "exceeding ten dollars in value" was inapt to apply to repeated work for an indefinite period. Reference was made to the remarks, albeit obiter, in Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR 561 at 574. I do not read the remarks of the High Court in that case as supporting a suggestion that an arrangement will be outside the subsection if it involves a repeated series of activities over a number of days. It could scarcely be so, given the purpose of s6(3A) as a provision designed to afford compensation to persons whose relationship with the principal is one in the nature of employment. In any case, here the arrangement was for a limited period. It was at a cost which was predetermined. That cost was, as the evidence shows, certainly for a value of work over ten dollars. It is hard today to discern the policy of the ten dollar qualification. It was first provided in 1942. It still remains in those terms in the Act, despite intervening inflation. When the subsection was originally enacted in 1942, five pounds might have been a substantial weekly wage. The reference to ten dollars has long since ceased to be a protection against trivial claims. It is hard to see utility in the retention of this unrevised figure. Did the trial judge find facts on the scope of employment? That leaves only the decision on the second principal issue in the appeal. Did Herkes J err in law in suggesting that the injury occurred to the appellant in circumstances which were not incidental to his notional employment and thus outside the terms of the Act. The Act provides compensation, relevantly, only if the worker shows that the injury arose out of or in the course of the employment. In the case of a deemed worker it is necessary to construe this expression adjusted accordingly, and the contrary was not submitted. The first point to make is that, formally, I do not regard Herkes J's observations on this second point to be findings in the sense of a final determination by a judge of an issue in contest by the parties. His Honour had already determined the appellant's claim and that it "must fail". He did so exclusively on the holding that the appellant was not a deemed worker within s6(3A) of the Act. That holding alone sustained the award which his Honour entered in favour of the respondent. URJ MARTIN v THE GOLLIN WALLSEND COAL COMPANY LIMITED (Kirby P) 7 It was the ratio decidendi of his Honour's decision. The remaining remarks of his decision were obiter. Indeed, his Honour acknowledged so much by saying that it was "perhaps not necessary to reach any decision on the second question." He offered his remarks on that question only because of the "extensive arguments put and the importance of the case." I do not, therefore, consider that his Honour's determination of the facts involved in this second issue is conclusive. This alone, together with the error found on the first issue, would warrant remitting the matter to the Compensation Court so that the application could be reheard and the second issue determined in circumstances where its resolution was necessary for the decision of the case. However, quite apart from this conclusion which would warrant the course which I will propose, I consider that there is sufficient in his Honour's reasoning on the second issue to disclose an error of law attracting the jurisdiction of this Court to intervene, even if it were held that his Honour rested his decision, in part, upon his conclusion upon the second question. I acknowledge immediately that decisions on whether this conduct or that arose out of or in the course of the employment of an actual or notional worker typically raise only questions of fact. See The Commonwealth v Oliver (1969) 107 CLR 353 at 358. Furthermore, on the authority of Azzopardi (above), even perverse findings of fact are immune from correction in this Court, limited as it is to correcting (relevantly) errors of law. Just because I might consider a conclusion by Herkes J as demonstrably unsound or grossly erroneous on the facts, that would not entitle me, in law, to substitute my opinion for his. Meaning of "arising out of or in the course of' employment But I repeat that the holding in Azzopardi acknowledges that an ultimate finding of fact, even in the absence of a misdirection, may reveal an error of law if the primary facts found are necessarily within or outside a statutory description and the contrary decision has been made. See Glass JA's judgment in Azzopardi at 156, with which Samuels J agreed at 157. See also Hope v The Council of the City of Bathurst (1980) 144 CLR 1 at 10; The Australian Gas Light Company v The Valuer-General (1940) SR (NSW) 126 at 138. In elaborating the qualifying phrase, "out of or in the course of employment", the Workers' Compensation Act does not itself refer to work "incidental to the employment." That expression, and other tests elaborated to define compensable circumstance and non-compensable circumstances, appear in judgments of the courts. Thus, in Humphrey Earl Limited v Speechley (1951) 84 CLR 126 Dixon J propounded a test which is frequently cited in this regard. At 133 his Honour said: "The acts of a workman which form part of his service to his employer are done, needless to say, in the course of his employment. The service is not confined to the actual performance of the work which the workman is employed to do. Whatever is incidental to the performance of the work is covered by the course of the employment. When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something which he was reasonably required, expected or authorized to do in order to carry out his duties." Dixon J acknowledged that such questions involve matters of degree. But his Honour emphasised (at 134) that it did not follow that their decision is always a question of fact, open in point of law to a finding either way: "Even in a matter 8 UNREPORTED JUDGMENTS of degree the facts may show so great a departure from what is an allowable incident of the employment that it is not open to a court to make any but one finding." The obverse of those remarks is also true. In some circumstances, the facts as found may show such a connection with the employment that it is not open to a court to make any but one finding. In a neutral system of justice the principle must cut both ways. Facts necessarily within or outside the statute? What is the position in this case? The appellant has been held to be a deemed worker. Accordingly it is necessary to define the scope of his notional employment. Obviously, that included principally the carriage of waste material in his truck. But it extended also to all things reasonably "required, expected or authorised" for the purpose of carrying out such duties. In this case the time limited to do the work was two weeks. The respondent's colliery would then recommence operations. The appellant had asked whether, because of the breakdown of the drag line, he should go for the weekend. He was told to await the repairs because, "We want the job done". Whether or not these words were said by an employee of the respondent (a matter upon which the evidence is not clear) they certainly represented the position and interests of the respondent. The use of the appellant's truck could not take place whilst the drag line was out of operation. The repair of the unit of the line was therefore clearly incidental, in that sense, to the use of the truck and to the work of the appellant at the respondent's premises. Senior counsel for the respondent conceded that the appellant did not step outside his employment by merely observing the repair of the drag line in the machine shop. Indeed, it was conceded properly, in my view) that if the appellant, standing there, had been injured by a projectile dislodged by the hammering of the drift on the roller pin, such an injury would have arisen out of or in the course of the appellant's employment. In these circumstances it is completely unconvincing to say that because the appellant, in order to hasten the recommencement of the operations for which he had been engaged, helped others involved in the repair, and was injured in the course of doing so, that such injuries did not arise out of or in the course of his notional employment. To so conclude, in my view reveals an error of law because the facts found are necessarily within the statutory description to be applied. Even if a narrow view were taken about the definition of the scope of the notional employment as a truck driver, they necessarily arose "out of" that employment. A decision to the contrary would not merely be perverse; it would be wrong in law. If I am not right in my conclusion, I agree with Priestley JA that it was an error of law for Herkes J to conclude (as I believe he did) that only a negative answer could be given to the question whether the injury received arose out of or in the course of the appellant's employment. At the very least, the decision must be reconsidered freed from that error. Orders For these reasons I consider the appeal must succeed. I propose the following orders: 1. Appeal allowed. 2. Award of the Compensation Court of New South Wales dated 13 May 1987 set aside. URJ MARTIN v THE GOLLIN WALLSEND COAL COMPANY LIMITED (Samuels JA) 9 3. The matter returned to the Court so that the appellant's application may be dealt with conformably with the decision of this Court. 4. The respondent to pay the costs of the appeal. 5. The costs in the Compensation Court to be provided by the award of that Court. Samuels JA So far as the first point is concerned, that is to say whether or not the applicant, as I will call him, was entitled to the benefits of s6(3A) of the Act, Iam in agreement with what the President has said. I confess to being somewhat puzzled by the way in which Herkes J dealt with the point, since having regard to his Honour's great experience in this field I would have thought that he was familiar to the point of tedium with the words of the section and with the language of the cases which have sought to construe it. It seems to me possible, therefore, that when his Honour used the phrase "independent contractor", which does not appear in the subsection, he was endeavouring or intending by using the adjective to convey the notion that the exclusion in the parenthesis had been attracted. He was, in other words, using the word "independent" to mean a contractor who did carry on a trade or business. However, if this had been what the learned judge had intended to say, it would not have meshed readily with a passage in his judgment which expresses at least the tentative view that the applicant might have been deemed to be an employee of the Shire Council. If that indeed was a finding to which the learned judge was inclined, it would, presumably, have included the notion that during the years during which he worked exclusively for the Shire Council the applicant could not have been regularly carrying on any independent trade or business. Hence when he went to work for the colliery, the relevant employer in this case, it would have been a matter of some difficulty to satisfy the terms of the exclusion. This is a matter to which the learned judge does not refer, and all in all I feel bound to agree with the President that Herkes J fell into error in the way in which he dealt with the matter, and if that were the only point the case would have to go back to the Compensation Court. Upon the second point, however, I take the view that Herkes J was guilty of no error and that being so, for the reasons which I will endeavour to express, I would dismiss the appeal. First of all, I should say that I do not consider that what Herkes J said upon the question of course of employment was obiter. If I thought it was, then of course it would be totally unnecessary to say a further word about that part of the appeal. I remind myself of what was said by Lord Jessel MR in Wallace V Smith (1882) 21 Ch D 243 at 265, where his Lordship observed, "I distrust dicta in all cases." Of course writing judicial comments about matters which are obiter itself involves engaging in the production of obiter dicta. In my view Herkes J gave two independent reasons for his decision, and therefore I am bound to deal with the second of them. He himself set out the facts very clearly and in detail, and the President has recapitulated them and there is no reason for me to repeat them. However, I think that in order to form some background for my own judgment they may be distilled most favourably to the applicant in this way. The applicant's ability to do the work for which he had been engaged depended upon the continued availability of the drag line. But the drag line had broken down, and while it was unserviceable the applicant was deprived of his opportunity to earn his hourly rate. From the colliery's point of view it was necessary to repair the drag line as quickly as possible in order to dispose of the slurry before the mining operations recommenced after the Christmas break. 10 UNREPORTED JUDGMENTS Hence all concerned had good reason and every motive to expedite the repairs, although the urgency of the situation did not seem to affect Muggleton, the applicant's co-contractor, who, to use the applicant's own words, "took a walk somewhere" while the applicant joined employees of the colliery in endeavouring to fix the defect in the line. It is readily understandable that the applicant should have taken a hand in repairs, not merely because without the drag line he could not earn his money, but because to a man of energetic disposition and cooperative temperament activity would have been preferable to idleness. Mr Muggleton was of a different mould, no doubt. But that does not supply an answer to the question in issue, which is whether the activity in which the applicant was engaged, that is participating in the repairs, was incidental to his employment. (see The Commonwealth v Oliver (1962) 107 CLR 353 at 356-60). That question must be a question of fact. As Lord Buckmaster said in John Stewart and Sons (1912) Limited v Longhurst [1917] AC 249 at 258 and 259, mentioned with approval in Oliver at 357, there is an error in the effort "to obtain from decided cases a fixed standard of measurement by which to test the meaning of the words in the statute 'in the course of' and 'arising out of' employment. In Oliver there are several statements to the same effect at 358, 361, 363 and 364. I need quote only what was said by Dixon CJ at 358. Here, talking of what amounts to the concept of an activity incidental to employment, his Honour says: "But all this seems to go to what is after all a question of fact." Thus this issue plainly involves a question of fact and if a further demonstration of that proposition were required it would be provided by what was said by Jordan CJ in The Australian Gas Light Company v The Valuer-General (1940) 40 SR 126. These passages are, I think I can say with accuracy, the source of related cases to which the President has referred, such as Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139; Mahony v Industrial Register of New South Wales (1986) 8 NSWLR | at 3 and Hope v The Council of the City of Bathurst (1980) 144 CLR 1 at 10. The first is at 137 where his Honour said: "The question whether a particular set of facts comes within the description of such a word or phrase is one of fact, not of law." and the second at 138: "Tf, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law." The significance to be attached to the relevant facts touching, as they must, contemporary conceptions of the incidents of employment will change from time to time. See Francis at 364-5. Courts must keep themselves aware of changing social concepts, attitudes and expectations in this as in other things. The need to do so in this area underlines the conclusion that what we are dealing with here are matters or fact, degree and comparative weight. In the present case, however, attempts were made in the argument to invoke an exception to the propositions which I have just stated, which appear in Valuer-General at 138 and which has been later affirmed in Azzopardi and Mahony, and which are also referred to in Hope In Mahony at 3 the proposition is stated by Hope J in a manner which is, if I may respectfully say so, wholly consistent with authority. His Honour says that: URJ MARTIN v THE GOLLIN WALLSEND COAL COMPANY LIMITED (Samuels JA) 114 "This test may be put in other ways as, for example, there may be an error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made." In the present case, however, there is no statutory description directly in question. If one asks the question did the applicant's injury arise in the course of his employment, it would be necessary, as we have seen and as the argument has shown, to consider a narrower question at a lower level of abstraction, namely was the activity in which the applicant was engaged at the time of his injury incidental to his employment? But that, of course, is not a statutory description. It is a judicial gloss applied as a means of directing attention to considerations - I emphasise considerations of fact - which may assist in elucidating the problem. But if the wider question imports some statutory description it cannot be said in my opinion that what the applicant was doing was necessarily incidental to his employment; or, rather, must necessarily be regarded as a matter of law as incidental to his employment with the consequence that a contrary view, the view to which the learned judge came and the view which I myself, for what it is worth, think to be correct, is as a matter of law untenable. It cannot be said, with great respect to those who take a contrary position, that the applicant's self involvement in the process of repairing the drag line was something which he was reasonably required, expected or authorised to do: see Humphrey Earl Limited v Speechley (1981) 84 CLR 126 at 133. As my brother Priestley observed during the argument, that collocation of words probably does not advance an exclusive test, but it is a helpful guide to the elements involved. Furthermore, the applicant was and remained a contractor. The fact that he might have been or should have been deemed to be a worker by dint of the provisions of s6(3A) does not alter his character. That subsection deals with contractors, that is to say those employed under a contract for services and not under a contract of service, but deems them to be other than they are. Most deeming provisions, as has been more than once pointed out, are intended to declare black concepts of a different colour. The applicant was not subject to detailed direction by the colliery. He was hired to cart slurry. What else he did was entirely up to him. He could not, for example, have been directed to help in the repairs. Whether he did so or not was a matter for him, and I have already indicated the very good reasons why he decided that he would assist in getting the drag line working again. And, of course, it may well be that there are compelling arguments of fact to suggest that what he did was incidental. The point that I am seeking to make is that whether it was or not is a question of fact. It must also be remembered that this doctrine of incidental activity, if I may call it that, is designed to cast liability upon an employer. This no doubt is why Dixon CJ used the words he did (which I have just quoted) in Speechley, and why employers who permit workers to play games on their premises during meal breaks may be liable for injury on the ground that they nave enabled the activity which can thus be fairly regarded as incidental to the work. But there is no evidence of that kind here. Hence in my opinion this question of fact is not amenable to review in this Court. I add that I read the judgment as indicating that Herkes J, was of the opinion that he was not bound by authority to hold as a matter of law that this activity was incidental to the applicant's employment, and that on that footing he proceeded to determine the question as one of fact. I do not construe his reasons as asserting 12 UNREPORTED JUDGMENTS that the decision was one of law. If his judgment is to be read in that way, then he fell into error on that account. However, as I have said, for my own part I find it impossible to read it in that fashion. Finally, I might say this. The legislature has declared that appeals to the Court of Appeal from the Compensation Court lie only on questions of law. I do not think that we in this Court should be over-astute to encourage the efforts of litigants, sometimes subtle and sometimes ingenuous, to outflank the will of the parliament. I would therefore dismiss the appeal with costs. Priestley JA I agree with the conclusion reached by the President and Samuels JA on the question whether the appellant was deemed to be a worker under s6(3A) of the Workers' Compensation Act 1926. In regard to this question, on the facts found by the trial judge the appellant was clearly within the subsection, unless the work he was doing fell within the description of "work incidental to a trade or business regularly carried on" by him in his own name. One. of the relevant facts found by the trial judge was that the appellant: "for many years had worked exclusively for the Moree Plains Shire council and had not accepted employment for himself or his truck from any other source." Further, this work was for road construction purposes. It seems to me that the only conclusion from this is that the appellant's trade or business regularly carried on by him in his own name was the doing of road construction contract work for the Council, and that the contract work he undertook for the appellant was not part of or incidental to the particular trade or business he regularly carried on. (Compare the observation of Dixon J in Humberstone v Northern Timber Mills (1549) 79 CLR 389 at the foot of 401). Although it seems to me that the only legal conclusion on the facts lettered (a) to (0) found by the trial judge is the one I have mentioned, the trial judge found that on those facts the appellant "must fail". Even if I should be wrong in thinking that as a matter of law, as distinct from a matter of fact, the appellant must succeed on this point, there seems to me to be no doubt that in point of law it was wrong to say that the appellant must fail. At the very least it was open to the trial judge as a matter of law to find that the facts brought the appellant within the subsection. To conclude that it was not so open was an error of law: see per Kitto J in New South Wales Associated Blue Metal Quarries Limited v The Federal Commissioner of Taxation (1956) 94 CLR 509 at 512, cited by Mason J in Hop v The Council of the City of Bathurst (1980) 144 CLR 1 at 8. This last mentioned decision of the High Court seems to me to be the ruling authority often difficult distinctions which divide matters and questions of law from matters and questions of fact. In regard to the second question in this appeal, what the trial judge said in regard to it leaves me doubtful whether he intended his remarks about the point to be an alternative ground of decision of the matter before him or not. Being doubtful about the precise status of this part of his reasoning, it seems to me safer to treat it as having been intended by him as an alternative basis for decision, and therefore necessary for consideration in this Court. The question is whether, on the assumption that the appellant was deemed a worker under s6(3A), the injury he received was personal injury arising out of or in the course of his employment: see s7 and the definition of "injury" in s6 subs1. The decisive passage in the trial judge's reasons on this point was: "Even on the most liberal view I am unable to find any authority which would suggest that the activities being carried on by the applicant at the time of his injury were indeed incidental to the work he had contracted to perform. In my URJ MARTIN v THE GOLLIN WALLSEND COAL COMPANY LIMITED (Priestley JA) 13 view the applicant at the time of his injury was at a place where he had no call to be under his contract voluntarily assisting in repairing a drag line owned and operated by an independent contractor. He carried out no work for the respondent in the terms of his contract on that day nor did he submit any claim for payment for work done relating to that day. The only association the work being done had with the respondent was that the drag line being repaired was being used in the course of clearing sludge from the respondent's dams and that two employees of the respondent whose services had been let to the contractor who owned the drag line were actually engaged to repair it. There was in my opinion no nexus between the activity being voluntarily carried out by the applicant when he was injured and the work which he had contracted to do which would allow a finding that his injury arose out of or in the course of his employment or was incidental thereto." The opening sentence of this passage read in the context of what. precedes and follows it conveys to me the clear meaning that his Honour regarded himself as precluded in point of law from regarding the facts he found as falling within the statutory description "arising out of or in the course of his employment". His references to what he regarded as a more liberal interpretation of those words in recent years and the fact that even on the most liberal view he was unable to find any authority to support the conclusion that the facts fell within the words seem to me to mean that he was taking the position that even if he were otherwise inclined to come to a conclusion favourable to the appellant, the statutory words read in light of the way they had been interpreted over the many years of their existence did not permit him to reach such a conclusion. If this interpretation of his reasons is correct, then it seems to me that they involved a point of law, and with respect to his Honour, I do not agree with the legal position implicated in that approach. In other words, in terms relevant to this appeal it seems to me that the first sentence of the passage I have set out is a statement that in point of law on the facts found it cannot be said that what happened to the appellant arose out of or was in the course of his employment. As IT have indicated, in my opinion this cannot be right. It is undeniable that the appellant was on the premises of the person by whom he was, on the assumption presently being made, deemed to be employed. He was there because of his deemed employment. And the action he was engaged in was directed to the respondent's purposes of cleaning the dams, these being the very purposes of the appellant's deemed employment. Even if the basic facts mentioned by the trial judge in the balance of the passage that I have set out are correct, they cannot negate the considerations I have mentioned to the extent that in point of law only a negative answer could be given to the question whether the injury received by the appellant arose out of or in the course of his employment. On the contrary, it seems to me strongly arguable that as a matter of fact it did. It could readily be said that what he was doing was a reasonable consequence of the circumstances in which he was placed through is deemed employment. In saying that, I am adapting the words of Dixon CJ in Humphrey Earl Limited v Speechley (1951) 84 CLR 126 at 134. However, of course, the question of fact is not for this Court to decide. But again, as in regard to the first point, it is at the least open, in my opinion, on the facts found to draw the legal conclusion in favour of the appellant. To hold that on no view of the law could such a conclusion be drawn is in my opinion itself an error of law. 14 UNREPORTED JUDGMENTS At this point I will take the risk of venturing an obiter dictum of my own in response to the concluding portion of the reasons of Samuels JA. The section, as I understand it, under which this appeal comes to this Court is s32 of the Compensation Court Act 1984. SubS1 of that section says in part: "Tf a party to any proceedings before the (Compensation) Court... is aggrieved by an award of the Court in point of law... that party may appeal to the Supreme Court." When an appellant comes to this Court asserting that he is aggrieved by an award of the Compensation Court in point of law, it seems to me that it is the duty of this Court to consider whether a point of law is involved in the appeal in the relevant sense. If it is, the Court is bound to deal with the appeal; if it is not, the Court has no jurisdiction to deal with the appeal. In my opinion the appeal should be upheld with costs and the matter remitted to the Compensation Court for determination in accordance with this Court's decision. The orders of the Court, accordingly, by a majority are: 1. Appeal upheld. 2. Award of the Compensation Court set aside. 3. Proceedings returned to the Compensation Court to be dealt with in accordance with the decision of this Court. 4. The respondent to pay the appellant's costs of the appeal. Costs in the Compensation Court will be by the award of that Court. Counsel for the Appellant: J Cummins QC and R Hotchkiss Solicitors for the Appellant: Moroney Ruttner and Mantach, Newcastle Counsel for the Respondent: PJ Kenny QC and SL Flett Solicitors for the Respondent: Sparke Helmore and Withycombe, Newcastle