NEWSTEAD v GULGONG RSL CLUB LTD [1995] NSWCA 318

NEWSTEAD v GULGONG RSL CLUB LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY AP, MEAGHER and HANDLEY JJA 17 July 1995, 9 August 1995 [1995] NSWCA 318

APPEAL from Compensation Court — Lighting operator with a band — Injured after performance, packing equipment — Whether deemed to be a worker — Whether "an entertainer in any performance in" a registered club — CL15(1)(d) of Schedule 1 of Workers Compensation Act 1987 — Held: Purpose of his activities was to provide diversion or amusement, therefore he was a deemed "worker".

ORDERS

1. Appeal upheld and award made in favour of the worker.

2 Counsel for the worker to bring in short minutes of the orders appropriate to give effect to this judgment.

3. Appeal stood over to a date two weeks from today. If there be difference between the parties as to the orders to be made, the matter to be determined on that day. If the parties are in agreement as to the orders to be made, a consent order may be filed.

4. The respondent to pay the costs of the appeal and, if entitled, to have a certificate under the Suitors Fund Act.

Mahoney AP On 21 July 1990 the applicant appellant was injured at the respondent's club in Gulgong. He claimed weekly compensation payments for the period 21 July 1990 to 10 November 1990 and lump sums under s66 in respect of the loss of use of his right arm below the elbow and "severe bodily disfigurement". At the time of his injury he (to adopt a neutral description) "did the lighting for a band called 'Silent Majority'"'. On 21 July 1990 that band performed for reward at the premises os the respondent club At the end of the performance the applicant was engaged in packing up "the gear" (including his lighting equipment) when he slipped over and fractured the radius bone in his right arm.

His claim for compensation was heard by her Honour Judge Truss. On 21 March 1994 her Honour dismissed his application. He has appealed to this Court against her Honour's judgment.