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. 1. THE BASIS OF THE APPLICATION: The basis of the applicant s application is that he was, he claims, an entertainer and so a deemed employee of the respondent. As far as is here relevant s9(1) of the Workers Compensation Act 1987 provides that "a worker who has received an injury.. shall receive compensation from the worker's employer in accordance with this Act". The term "worker" is defined in s3 of the Act to mean, inter alia, "any person who has entered into or works under a contract of service...". It has not been argued that the applicant was such a person. However, s5 of the Act provides that Schedule 1 to the Act "has effect". Schedule 1 deems certain persons to be "workers". The relevant clause, CL15(1) provides: "15(1) A person engaged for fee or reward to take part: (a) as a boxer, wrestler or referee in any public boxing or wrestling contest in a stadium or place to which the public is admitted on payment of a fee or charge; 2 UNREPORTED JUDGMENTS (b) as a boxer, wrestler or referee in any boxing or wrestling contest in or on the premises of a club registered under the Registered Clubs Act 1976; (c) as an entertainer in any public performance in a place of public entertainment to which the public is admitted on payment of a fee or charge; or (d) as an entertainer in any performance in or on the premises of a club registered under the Registered Clubs Act 1976, shall, for the purposes of this Act, be deemed to be a worker employed by the person conducting or holding the contest or public or other performance." It is accepted that the performance in question took place on the premises of the respondent and that it was a registered club within CL15(1)(d). Mr Murray QC for the applicant and Mr Maconachie QC for the respondent have dealt with the appeal upon the basis that only two questions arise for decision by this Court: whether the applicant was engaged to take part "as an entertainer" in the relevant performance; and (if he was) whether the injury in question was "an injury within s9 received by him as "a worker". Counsel have agreed that no issue of fact arises for decision; this appeal, as a rehearing, may be dealt with essentially upon the facts detailed in evidence before the trial judge. They are agreed that, no claim for relevant disfigurement being pressed, any award to be made for the applicant may be made in accordance with the findings in that regard made by the judge. 2. THE EFFECT OF CL15(1)(d): The respondent submitted, and her Honour found, that the applicant was not engaged to take part in the relevant performance "as an entertainer". It is necessary to consider what is the scope of the relevant provision in CL15(1)(d). Her Honour said, and counsel agree, that there are no decisions which are determinative in interpreting or construing the effect of this provision. The effect of it is to be determined according to the ordinary meaning of the provision having regard to the context in which it appears and the purpose of it. Her Honour set forth in her judgment definitions of "entertainer" and its cognates taken from various dictionaries. She took from the Macquarie Encyclopaedic Dictionary the definitions: "entertainer 1. one who entertains. 2. a singer, reciter or the like, who gives, or takes part in public entertainments. entertainment 1. the act of entertaining. 2. something affording diversion or amusement especially, esp an exhibition or performance of some kind..." She took from the New Shorter Oxford Dictionary the definition of "entertainer" as "a person who entertains; spec, a professional provider of amusement or entertainment". She took from the World Book Dictionary the definition of "entertainer" as: " 1. a person who entertains. 2. a singer, musician, actor, dancer, reciter, or other performer before the public, especially as a profession." The argument has proceeded by reference to those definitions. Her Honour said: "Having considered the authorities, such as they are, and the various dictionary definitions and attempting to give the work (sic) its full and ordinary meaning I have come to the view that to be an entertainer a person must PERFORM in public. Whilst I have no doubt that the applicant's lighting made the band's performance more diverting and 'entertaining' in my view he was not an entertainer because he was not performing. In my view the applicant is in the same category as a scene shifter or usher." URJ NEWSTEAD v GULGONG RSL CLUB LTD (Mahoney AP) 3 The judge described the applicant's function and what he did in the following terms: "The applicant was born on 12 June 1966. At the date of injury he was employed as a linesman's assistant with Ophir Electricity. In addition, he did the lighting for a band called 'Silent Majority'. This band comprised seven members of whom five were musicians, there was a sound technician and the applicant. The members were friends and the guitarist was the applicant's brother. The band performed at various clubs and functions. Whenever they had an engagement the lighting was hired for the occasion. It was normally ordered by other members of the band but frequently collected by the applicant. The band always brought its own special lighting and never relied upon what was already in existence at the venue. The band was paid an amount per performance. Expenses were deducted and the balance was distributed equally between the seven members As all seven members of the band were friends they shared the physical work which involved the loading and unloading of the sound equipment, lighting equipment and instruments which were transported in a van. However, the only equipment which the applicant set up on stage was the lighting This normally involved assembling 2 trusses which hold a large number of lights and additional lights were placed on T frames and occasionally on the ceiling. The lights were connected to a panel with 24 channels and 50 to 70 buttons. They were also connected to a dimmer rack so that the intensity could be adjusted. The applicant's job was to select colours to 'bring out the band and make them look good'. The lighting was also used to spotlight various members of the band when they performed solos. During the performance the applicant used the buttons in time with the music and he changed the lights when the beat changed. He said that it was necessary to be familiar with the music to be able to do this. He manned the lighting panel for so long as the band played. In his opinion, the band 'looked very ordinary without the lighting'. For the performance on 21 July 1990 at the respondent's premises the applicant selected special colours which included ultra violet lights and white lights for the soloists." The injury in question was suffered when "at the end of the performance the applicant was engaged in packing up the gear when he slipped over and re-fractured his right radius...". In order to understand her Honour's findings, it is necessary to refer to the evidence given by the applicant at the trial. It was not suggested that the applicant sang or played music during the performance of the band. When asked "what was your involvement?", he said: "My involvement was to go to the jobs with them, help with the loading in of the gear, doing the lights and that was mainly it - and looking after other stuff too, I helped them with the books and - and stuff like that." He said that "we didn't really have any roadies we all just got in and did the - the work, the whole band members... "". They were, he said, "all like related and friends and that, we all did the same amount of work basically, bringing in the gear and setting up". In his evidence in chief, he gave the following evidence: "Q. Can you describe to her Honour, what part involving lighting consisted of, what did you do. A--- Well, my job was to set up the lights and get them into a position that it would bring the band members out, show them in a better light, excuse the pun, was to 4 UNREPORTED JUDGMENTS set up the lighting desk which was a 24 channel desk, I don't know if this means anything to you, but - and it contained about, between probably 50 and 70 buttons which was the controls of the light, now my job was to select colours for the lights, because before you put the colours on them, they're just a plain white light, and once I've done that, set them into position like at the front and the back of the stage to bring up the band, make them look good I suppose, and to add to what they were already doing, so. Q. What colour - perhaps we should go to the night in question, 21 July 1990. What colours did you have on that night. A.--- Pinks, reds, greens, light and dark blues, purple - what's the colour - the - I can't think of the name of the colour now, but it brings things out, like makes white clothes stand out - it's a bright purple -- Q. Anyhow, an iridescent type colour. A--- Yes, a purple colour, yes. Q. Ultra violet. A.--- Yes, ultra violet lights yes. White lights for the front of the stage for - for putting on to the singer when she was the main part, when the guitarist did a solo or something, I could bring the light up onto him to highlight him to - to highlight him. Q. Now, if someone had never done this job of lighting before, would they be able to just go to your board and immediately operate the lights for the band. A--- No, because for one thing, you have to know which - which button the board controls which lights and all the lights connected into what you call a - a dimmer rack so you actually run the leads from the back of the lights to the back of the dimmer rack and that takes a bit of time to learn how to - to get them into the right channel, like each button is a channel and it takes a bit of time and not just anybody - you could probably go there and just push the buttons but you wouldn't know what you were doing, you wouldn't know which lights were going to come up and what - what intensity - you can - you can adjust the intensity of the light as well, because there's actually a slider on the - on the desk as well below the button of each light, so you can --- Q. During the band's performance, what do you actually do. A--- Well I try to Q. What did you do on this night, perhaps I should ask. A--- On that night, I adjusted the lights - well I used the buttons on the desk to - in time with the music as much as possible, so it all fitted in, you know, it was all intertwined, that when they changed the beat the lights would change because I was pushing the buttons, I wasn't pushing the buttons willy nilly, there was - there was - to keep it like it looked like at each rhythm change or beat change, that the lights changed with it. Q. Did you have to be familiar with the music for that purpose. A. Yes, yes you do have to be familiar with it. Q. Did anyone ever say anything to you about what you achieved as the lighting person. A--- Yes, quite a few. Q. Your involvement on this night, how much of the band's performance did you light for. A--- For the full night. Just the full night and whatever - but not during breaks of course, but with the lights I think - without the lights I should say, the band would look pretty ordinary up there, that's just what my opinion, but I think most other people would say that too. URJ NEWSTEAD v GULGONG RSL CLUB LTD (Mahoney AP) 5 Q. Did something happen to you on the night of 20 July - 21 July 1990. A. Yes. At the end of the night we were packing up the gear and I was helping my brother pack up some of his gear and the lights and I slipped over and broke my arm. Q. Just going back to the concert itself, what did the members of the public do at the concert. A--- Well, they used to get up and dance and listen to the music, I suppose, that's what they were there for - mainly dancing, you know, and sit around and have a few beers and --- Q. Did you see them looking at the stage and the lighting at any time or in the direction of the lighting. A--- Yes, they'd be looking up that way towards the stage The only problem with - with me is that I was - I had my back to the - to the crowd most of the time, unless they were in front of me dancing and most of the time you know, they'd be just having a good time. Q. I have been instructed to ask this. Was there any applause. A. Yes, yes there was applause, it's a bit hard to judge whether it was for the band or for the lights, but no, there was applause for both." In cross-examination he denied that he was "paid something... for loading" and affirmed that "I was more or less paid for doing the lights", "the conglomerate of what you were doing"... "the loading, the lights, maybe the books, those sorts of things". In re-examination, counsel sought to obtain from him the percentage of his duties that the lighting involved and her Honour said: "Mr Tancred, I do not know that it is really relevant anyway, in that he was the one responsible for the lighting and I think he said they all - they all pitched in, in terms of all the other activities. I do not really know that it would be of great assistance to me anyway, to know what percentage of time - it seemed to be egalitarian band (sic) in terms of its set up." In my opinion, the applicant was engaged for reward to take part in the performance that was given in the club of the respondent. He was part of the partnership or joint venture in which the members of the group engaged and the payment paid to the group was a payment of which he took directly a share. The matter mainly in contest was whether he took part in that performance "as an entertainer". The judge's view of the evidence was that he was not such because he did not "perform". It was her Honour's conclusion that "... he was not an entertainer because he was not performing". It is necessary for this Court to determine, as on a rehearing, whether that is a correct categorisation of what, as the uncontested evidence has disclosed, the applicant did. In what her Honour said, she substituted "perform" and its cognates for "entertain". There is, I think, no fundamental error in this but it is, in my opinion, preferable to deal with the issue in accordance with the term used by CL15(1)(d), namely, "entertainer". As the dictionaries indicate, the term denotes the "affording (of) diversion or amusement" and this is to be done by something which is essentially a performance. It is, of course, not necessary that the performer be present personally in the sight of the audience; thus, a singer may provide entertainment by singing backstage or offstage into an electronic device or microphone which projects his singing to an audience in an auditorium. The fact that, in the present case, the applicant sat with his back to the audience when he operated the 50-70 buttons which produced the various coloured lights does not mean that he was not, in this sense, performing. 6 UNREPORTED JUDGMENTS As [have indicated, her Honour's view was that the applicant was "in the same category as a scene shifter or usher". It was, I think, for this reason that her Honour concluded that the applicant was not an entertainer. I have, with respect, come to a different assessment of what the applicant did; I would characterise it differently. The relevant question for this purpose is, I think, whether (to adapt one of the dictionary definitions) the applicant was, by what he did in the performance, "affording diversion or amusement". In my opinion, he was and, essentially for that reason, he took part in the performance "as an entertainer". There is, in many performances of this kind, a distinction between those who themselves "afford diversion or amusement" and those who provide the place or facilities or the like against the background of which those who afford such diversion or amusement do what they do. Thus, an usher in a theatre is not an entertainer, nor is the person who for the occasion provides the theatre or the "front of the house" facilities. The purpose of what the applicant did in operating the lighting was not merely to make the members of the band visible to the audience. The purpose of operating the 50-70 buttons from the 24 channel desk was, in my opinion, to divert or amuse the audience by the change of colours, by the highlighting of those who sang or played music and, by (as it was described) an "intertwining" of the music and the light, to give effect to "each rhythm change or beat change" as it occurred. This, in my opinion, was itself a part of the entertainment in the same way - though perhaps not to the same extent - as the music which was provided for the singers. The fact that it was so understood by the audience is, I think, indicated by the last answer of the applicant in examination in chief: "Q. I have been instructed to ask this Was there any applause. A. Yes, yes there was applause, it's a bit hard to judge whether it was for the band or for the lights, but no ere was applause for both." The distinction between those who themselves perform and those who are part of the background to the performance has been considered in other contexts. See, for example, R v Neil; Ex parte Cinema International Corporation Pty Ltd (1976) 134 CLR 27 at 31-2; Rous de Horsey v Rignell (1963) 1 QB 914. Each case must, of course, be determined according to the nature and significance of what the applicant has done. The court may, perhaps, know that in modern forms of entertainment, voice, music and lighting may each contribute part of the diversion or amusement which is the entertainment presented. It may, in particular circumstances, be difficult to distinguish for this purpose between a conductor and a violinist or between the timpanist in a symphony orchestra and the solo pianist. But, where, by taking part in the performance, such a person affords diversion or amusement, he is, in my opinion, for this purpose an entertainer. I am of opinion that the applicant was an entertainer in the present case. 3. DID THE INJURY ARISE OUT OF OR IN THE COURSE OF THE EMPLOY MENT?: The submissions of Mr Maconachie QC in this regard involved or at least suggested inter alia, two things: that the applicant, when he was injured, was not a "worker" within the Act; and that, however that be, the injury was not an injury "arising out of or in the course of employment" within the definition of "injury" in s4. The first of these turns upon the effect of CL15(1)(d). The nub of the submission was, | think, to the effect that CL15(1), in deeming the relevant person "to be a worker employed by the person... holding the... performance", URJ NEWSTEAD v GULGONG RSL CLUB LTD (Mahoney AP) 7 deemed him to be a worker so employed only during the precise time when he was actually entertaining in the performance. In my opinion, that attributes too restricted an operation to CL15(1). The terms of CL15(1) have a wider operation. Construed literally and according to their terms, that which operates to deem the person to be a worker is the engagement of that person to take part as an entertainer in a relevant performance: it is the engagement which gives rise to his categorisation as a worker, not his performance as such. His deemed status as a worker commences from that engagement; it is not co-terminus merely with the time when he is performing in the club premises. I do not mean by this that every injury suffered following the time of his engagement will be compensable; an injury, to be compensable, must arise out of or in the course of the employment. But, in the relevant sense, the employment commences from the engagement. Mr Maconachie QC then pointed to the fact that the applicant's injury was suffered after the performance itself had concluded; it occurred "at the end of the night" when the applicant was helping his brother to "pack up some of the gear and the lights". This aspect of the matter was not dealt with by the trial judge: it was not necessary that she do so. But Mr Maconachie QC pressed the submission before this Court. It is, of course, not every injury which, for the purposes of the Act, falls within the scope of the employment which by CL15(1) is deemed to exist. The fact that a person has been engaged for reward to take part as a singer in a performance at a club and that he is accordingly deemed to be a worker employed by the club does not mean that everything he does in connection with the performance can give rise to an injury arising out of or in the course of the deemed employment. Thus, if a person be engaged in such a way to sing during a performance, it may well be that, if he chooses to sweep the floors or serve in the bar after the performance, what he than did will not be done in the course of or arise out of his employment. What, if any, is the relation which must exist between the engagement to take part as an entertainer in the performance and the injury for s9 to apply? The relationship which must exist between the work and the injury has recently been considered at length: see Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473; (1991) 23 NSWLR 125. I am content to assume in favour of the respondent without finally deciding that to constitute an injury arising out of or in the course of the deemed employment, the activity giving rise to the injury must be appropriately connected with his engagement to perform. On this basis, the question to be determined is whether in packing up the gear of a person who sang and/or played guitar during the performance and the lights used in the performance, the applicant was doing something which had the appropriate connection with that which he was engaged to do, viz, divert and amuse the audience by the operation of the lights. This depends, upon what, in the particular factual context, his engagement involved. It is possible to envisage a case in which a person who was engaged to operate lights for the diversion and amusement of an audience would have nothing to do with the setting up or the dismantling of the lighting equipment: in such a case, that would be done by others. In such a case it would be arguable that if the person in question was injured in the course of dismantling the lights, the injury would not fall within the Act. But in this case it was incidental to his operation of the lights before the audience that he set them up and take them down: that was part of what he was expected to do: see Henderson v Commissioner of Railways (WA) (1937) 58 8 UNREPORTED JUDGMENTS CLR 281 at 294; Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 at 133. The dismantling and packing of the lights was not part of the diversion and amusement of the audience that he was engaged to provide but it was sufficiently connected with or incidental to it for the injury to fall within the Act. In my opinion, it is of assistance in understanding the operation of the Act to consider the position of a person who was actually engaged to perform as an entertainer under a contract for services in the ordinary sense. If a person was engaged by contract to divert or amuse the audience by the operation of lights in this way and the setting up and taking down of the lights was left to him as, in this case, it was left to the applicant, then in my opinion an injury whilst taking down the lights would arise out of or in the course of that employment. If a worker be employed to use tools to carry on his employment, an injury caused by his packing up of the tools at the end of the day would in my opinion be an injury arising out of and, | believe, in the course of his employment: and this nonetheless because the injury occurred after ordinary working hours. For these reasons I am of opinion that the appeal should be upheld. An award should be made in favour of the worker, as envisaged by the learned judge. Counsel for the worker is directed to bring in short minutes of the orders appropriate to give effect to these reasons for judgment. The appeal should be stood over to a date two weeks from the date on which this judgment is delivered. If there be difference between the parties as to the orders to be made, the matter may be determined on that day. If the parties are in agreement as to the orders to be made, it is open to the parties to file a consent order for the purpose so as to avoid the cost of a further appearance before the Court. The respondent should pay the costs of the appeal and, if entitled, have a certificate under the Suitors Fund Act. Meagher JA I agree with Mahoney AP. Handley JA I agree with Mahoney AP. 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. COUNSEL: Appellant: BF MURRAY QC/JO TANCRED Respondent: JE MACONACHIE QC SOLICITORS: Appellant: GOLDRICK FARRELL MULLAN Respondent: ABBOTT TOUT