GRAHAM v CHICK [1995] NSWCA 182

GRAHAM v CHICK SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY ACJ, CLARKE and COLE JJA 21 July 1995, 28 July 1995

[1995] NSWCA 182

WORKERS' COMPENSATION — worker — painter and decorator — whether engaged under contract of service — direct engagement by proprietor — proprietor supplies air compressor — alleged admissions in compensation claim form and letter to Court — proprietor not called to give evidence — established evidence of long practice as painter and decorator held: (by maj) Not a worker.

WORDS AND PHRASES — "contract of service', "worker"

WORKERS' COMPENSATION — worker — whether employment relationship established — painter and decorator engaged by builder to perform painting work — relationship change to direct relationship with proprietor — painter agrees to work at hourly rate — proprietor supplies paint and air compressor for spray painting — regularly inspects work — painter helps proprietor in rounding up sheep — proprietor signs compensation claim form as employer — proprietor writes letter to Compensation Court stating "no similar employees", ie other than applicant — Compensation Court (Moran CCJ) dismisses claim for compensation — holds painter is an independent contractor — on appeal to the Court of Appeal — held: (Clarke JA and Cole JA; Kirby P dissenting): No error is shown. Painter was not shown to have been a "worker" within the Workers Compensation Act 1987.

Stevens v Brodribb Sawmilling CoPty Ltd (1986) 160 CLR 16; Connolly v

Wells (1993) 55 AR 73 (NSWCA); Articulate Restorations and Development Pty Ltd v Crawford (1994) 57 IR 371 (NSWCA) applied.

WORDS AND PHRASES - "worker" - "contract of service".

Compensation Court Act 1984, s32 Workers Compensation Act 1987

ORDERS

Appeal dismissed with costs.

Kirby ACJ Before the Court is an appeal concerning workers' compensation law.