WORKCOVER AUTHORITY OF NEW SOUTH WALES v EDBROOKE (T/as GORDON TRAINED NURSES CLUB and ORS) [1995] NSWCA 527

WORKCOVER AUTHORITY OF NEW SOUTH WALES v EDBROOKE (T/as GORDON TRAINED NURSES CLUB)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER and HANDLEY JJA and ROLFE AJA 17 July 1995, 29 August 1995

[1995] NSWCA 527

WORKERS COMPENSATION ACT 1987 — DEEMED WORKER PROVISIONS — RELATIONSHIP AGENCY/WORKER/CLIENT — NATURAL JUSTICE

FACTS: The worker, the third respondent in these proceedings, claimed payments in respect of incapacity said to be the result of an injury suffered on 4 May 1985 in the course of employment. At the time of the accident the worker, a nurse, had a relationship with the first respondent whereby the Gordon Trained Nurses Club would arrange for her to undertake relief employment. Having performed work, the nurse would bill the client, requiring payment to the Gordon Trained Nurses Club on behalf of the nurse. At the time of the injury the worker was engaged in such relief employment, providing nursing care to a private patient. The worker brought an action against the patient, against the first respondent, and against the WorkCover Authority of New South Wales.

Having heard the evidence and reserved judgment, the trial judge, Judge Gibson, died. The matter was relisted before Judge Burke. The parties agreed that the matter be decided by Judge Burke on the written material.

In giving judgment, Judge Burke expressed astonishment that the addresses of counsel before the late Judge Gibson did not concern the application of the deemed worker provisions of the Workers Compensation Act 1987 (NSW). He stated that the issue before him was "whether or not the applicant is a worker within the ambit of the Act", and found that the worker was at the time of the alleged injury a deemed worker of the first respondent (the second respondent to the application at trial), pursuant to the provisions of Schedule 1 CL2 of the Act. In reaching these conclusions, Judge Burke stated that the relationship between the patient and the worker was analogous to that of a client and a home aide provided through the Homecare Service.