STEPHAN v PACESETTER CLEANING SERVICES PTY LTD AND ANOR [1995] NSWCA 455

STEPHAN v PACESETTER CLEANING SERVICES PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy ACJ, COLE JA and ROLFE AJA 20 July 1995, 28 July 1995 [1995] NSWCA 455

WORKERS' COMPENSATION — worker — part-time contract cleaners — purchase of cleaning contracts — incorporation of company — company acquires contracts — invoices sent in name of company to clients — directors perform work of cleaning — other assistants engaged — company pays no salary to directors who leave funds accumulating in bank account — company establishes few formal records — makes no provision for sick pay, superannuation etc to directors — one director injured on a journey alleged to be compensable — rendered quadriplegic — claims compensation against company which is uninsured for purposes of Workers Compensation Act 1987 — claim pursued against WorkCover Authority of New South Wales — in Compensation Court, Thompson CCJ dismisses claim on the basis that he could not infer that a contract of service existed between the company and the injured director to render the latter a "worker" within the Act — on appeal to the Court of Appeal — held: (Rolfe AJA; Kirby ACJ and Cole JA concurring): (1) In the absence of

an express contract of service, the question was whether it was possible to infer the necessary contractual intention between the company and ie injured director from conduct of the kind described in the case. Rushes Pty Ltd v Thomas, Court of Appeal (NSW), unreported, 9 May 1990; [1990] NSWJB 56 applied; (2) The proper inference from the facts proved was that a contract of service existed between the company and the working directors, including the injured claimant; (3) Accordingly, proceedings returned to the Compensation Court for determination of the worker's entitlement under the

Workers Compensation Act 1987. Workers Compensation Act 1987.