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. PROPER APPROACH AND APPLICABLE PRINCIPLES This Court is asked to reverse a decision of a Judge of the Compensation Court of New South Wales (Moran CCJ) in a determination of a dispute about whether it had been proved that the applicant for compensation was a "worker" of the respondent within the Workers Compensation Act 1987 (the Act). The background facts are set out in the reasons of Cole JA. The appeal lies to this Court both on fact and law. See Compensation Court Act 1984, s32. But the process before the Court remains an appeal. Error on the part of the primary judge must be shown. This Court has said on a number of occasions that it should exhibit "a proper sense of modest when it comes to the task of classification" of employment relationships. See eg, Connolly v Wells (1994) 55 AIR 73 (NSWCA), 86. This is so out of respect for the function of the primary judge, the specialised jurisdiction of the 2 UNREPORTED JUDGMENTS Compensation Court, the nature of the proceedings before this Court and the undesirability of adopting an approach which would, in effect, shift final decisions in "borderline cases" (such as the present) from the Compensation Court to this Court. Nonetheless, if the exercise of this Court's jurisdiction to review fact finding and evaluation result in a conclusion that the primary judge has erred, this Court must perform its function. It "must not abdicate its responsibility". See Lee King Sang v Chung Chi-Keung and Anor [1990] 2 AC 374 (PC), 385. The principles to be applied in the present appeal were not in dispute. As the Court has, in many cases in the present series, elaborated those principles I will content myself by referring to the main cases in which the rules to be applied are found. They include Stevens v Brodribb Sawmilling Co (1986) 160 CLR 16, 24, 28f, 36; Pitcher and Anor v Langford and Anor (1991) 23 NSWLR 142 (CA) Connolly v Wells (above); and Articulate Restorations and Development Pty Ltd v Crawford (1994) 57 IR 371 (NSWCA). The search in each case is to ascertain the "essence" of the relationship between the suggested worker and employer. The Court is obliged to look to the "totality of the relationship between the parties". See Stevens, above, 29. No single criterion is determinative. Nor can generalities determine the particular case. What is usually or typically the case in a given trade relationship must give way to the evidence about the proved relationship in the case in question. A sole test of "control" or even of "the right to control" is not now accepted as conclusive. See Stevens, 24. By the same token the right of control will often remain "the surest guide of whether a person is contracting independently or serving as an employee". See Stevens, 36. Cf Queensland Stations Pty Ltd v Federal Commissioner of Taxation (1945) 70 CLR 539, 552. In conducting its search for the "totality" or "essence" of the relationship the Court will keep in mind the great changes which have occurred, for technological, social or other reasons, in the nature of employment between the time when the control test was expressed as an attribute of the law of "master and servant" to today's much more variable and flexible employment markets. See Connolly, above, 84; Articulate, above, 375. See also WorkCover Authority of New South Wales v Billpat Holdings Pty Ltd and Ors, Court of Appeal (NSW), unreported, 14 July 1995. In applying the foregoing tests, it is usual for the Court, both at first instance and on appeal, to list and consider the indicia which point, respectively, in support of the existence of a relationship of employment and against. It is the nature of the self-selection process of litigation that the kinds of cases which tend to come to this Court are those where the dispute is truly at the "borderline". This Court must weigh the several indicia in coming to its conclusion whether or not error has been shown, authorising and requiring it to intervene. Opinions can differ, including in this Court, as the majority and minority opinions in Connolly illustrate. That may be unfortunate. But it is simply an aspect of the resolutions in courts of disputes of this kind. INDICIA OF NON-EMPLOY MENT Let me acknowledge at once that there are a number of indicia which tend to support as correct the conclusion which Moran CCJ reached in this case. I list the chief amongst them: 1. The appellant is by trade a painter and decorator. He has carried on that vocation for twenty-five years. He advertised in the telephone book that this was his work activity, carried on apparently in his own name; URJ GRAHAM v CHICK (Kirby ACJ) 3 2. The respondent is a veterinarian. The relevant work performed was mainly the painting of his home. The home adjoined his clinic. The respondent was not a builder or other person ordinarily engaged in employing workers to perform painting. The Court, whilst respecting the peculiar facts of the particular case, must be careful to avoid the reality or appearance of a principle which would render home owners who engage painters to perform painting on their homes "employers" for the purposes of the Act. Although in this case the respondent was insured for the purpose of the Act, most home owners in that situation would not be. They would be surprised to find that they were potentially liable for very large sums in the event of injury to a painter engaged by them; 3. The appellant had a long history of work as a tradesman. He was initially engaged, as such, for the respondent's painting work by a builder who formerly superintended that work; 4. The respondent was paid an hourly rate according to the number of hours he worked. If he did not work he was not to be paid. In this sense he was not engaged on the basis ordinarily found in contracts of service in Australia; 5. The appellant was not directed or supervised by the respondent whilst performing his work as a painter. Doubtless the respondent watched the painting work from time to time. However, he was presumably getting on with his work as a veterinarian; 6. The respondent did not nominate the starting or finishing time of the work. When the appellant performed the work was left to the times convenient to him; 7. The respondent made no deductions from the moneys he paid to the appellant for income tax purposes as would ordinarily be the case in a standard employment arrangement; 8. The appellant was free to delegate the work or part of it, including to his son; 9. Although the respondent paid premiums to the workers' compensation insurer this could have involved nothing more than prudence. As a veterinarian, it could not be assumed that the respondent would have a detailed knowledge of the law as to employment. His opinion on the precise legal relationship would not determine it. See Connolly v Wells, above, 74, Nor would his cautionary conduct in paying an insurance premium do so; and 10. Nearly all of the equipment used by the appellant was supplied by him, as might be expected in the case of a skilled painter and decorator. I acknowledge the very considerable force of these indicia. They were sufficient to persuade Moran CCJ. With respect, I have come to a different view. I have done so because of the countervailing indicia which support the appellant's contention of employment. INDICIA OF EMPLOYMENT The indicia which persuade me to my view are as follows: 1. The appellant was originally working on one arrangement with the builder, Mr Burton. But that arrangement was changed. A new relationship was then established between the respondent and the appellant. It was a different one which must be analysed. The relationship changed because the respondent "... had run out of money". Without a change of his relationship with the appellant he would not have been able to finish the job; 2. The respondent and the appellant then negotiated a new relationship on 9 November 1989. The primary judge saw little difference between the relationship before and after this change "except that [the appellant] was paid by the hour rather than by an overall quote for the job". However, I do not agree. Prior to the change the appellant was certainly working as a sub-contractor to Mr Burton, the 4 UNREPORTED JUDGMENTS builder. He had contracted to do work with Mr Burton not with the respondent. The uncontested evidence is that when the change occurred, the respondent said to the appellant "I'll pay you $15 per hour and your son $10 per hour". This offer, which was accepted, changed the arrangement from one of a contract of services provided by Mr Burton to one whereby a direct relationship was established between the appellant (and the son) and the respondent to work for the respondent at an hourly rate; 3. The respondent thereafter supplied to the appellant a compressor for the spray painting which was required. The provision of tools and equipment is a classic indicium of an employment relationship. It is not a usual feature of a simple engagement by a householder of a contract painter; 4. The payment of an hourly rate is also more akin to an employment relationship than would, for example, be the payment of a fixed fee. However, this feature is equivocal for some contractors are paid by the hour and some employees can agree to work for a fixed fee which is calculated by reference to the time worked. See eg Articulate, 378; 5. A recognition by the respondent of the change of the relationship, and of its new nature, can be found in the fact that he said to the appellant, either on the day of the accident or the next day "It was covered by workers' comp". or "Well you're covered by workers' comp". It is true that the respondent's opinion in this regard is not determinative. It is also true that the reference to insurance could involve little more than the provision of potentially useful information. However, securing workers' compensation insurance and advising the worker of the facility are typical features of an employment relationship. They are not typical features of non-employment relationships; 6. The respondent paid for the paint which was used by the appellant. He chose the colour (which would be normal). He inspected the work as it was being done; 7. There was some evidence that, during his engagement by the respondent, (to use a neutral word) the appellant rounded up some sheep for the respondent. That was during the week that he was working on the painting of the respondent's roof under the new arrangement. This fact could, it is true, be explained by the informal relationship that tend to exist in country towns in Australia. But it is more akin to an employment relationship that an employer may direct a worker to perform activities outside his or her specialty than it is to the engagement of a specialised painting contractor to work within the speciality; 8. In the workers' compensation claim form completed by the respondent and signed by him, the appellant is described as a casual "worker" employed on 9 November 1989 full time on "painting and roof and gutter repair work". This constitutes an admission by the respondent. The force of this admission can only be weighed bearing in mind the fact that the respondent was not called to give evidence in the case. There could be forensic reasons why this was so. The fact remains that the respondent did not offer any testimony to contradict the evidence given by the appellant or to explain, or qualify, the document containing his admission; 9. This comment applies with equal force to a letter which the respondent wrote to the Compensation Court in answer to a subpoena. The letter was received into evidence. It stated, in providing details of the payments made to the appellant: "There were no similar employees as the remainder of the building was undertaken by Mr Maurie Burton on contract." URJ GRAHAM v CHICK (Kirby ACJ) 5 The appellant also relied upon a comment in an insurance investigator's report which somehow was admitted into evidence. This stated the investigator's conclusion "from our inquiries it would appear that on the date of the alleged incident the claimant was a casual employee of the insured and was performing work consistent with his occupation as a painter." In my view this statement represents nothing more than the investigator's opinion. Its relevance is doubtful. It does not advance the case at all. CONCLUSION Reaching his conclusion, Moran CCJ stated: "The applicant does not satisfy me on the balance of probabilities that the contract placed the applicant subject to the control and direction of the respondent in the manner of doing the work. Humberston v Northern Timber Mills (1948) 79 CLR 389 at 404. I am satisfied on the whole of the evidence that at the time of the accident the applicant was carrying out work as an independent contractor and was not a worker employed by the respondent. " With respect to his Honour, the control and direction in fact was not the sole criterion for cataloguing the relationship. To the extent that his Honour ultimately applied such a test, Moran CCJ erred in law. But I do not consider that this is ultimately the way his Honour approached his task. Reading the whole judgment, and the passage quoted in context, it is clear enough that he reviewed all of the relevant indicia except perhaps for the force which the admission, unexplained, provided in support of the appellant's case. As with a number of earlier cases in this series, I consider that this case is at the borderline. I differ with great hesitation from Moran CCJ. He is most experienced in evaluating cases of this kind. But for me the critical determinants are the change of relationship which occurred when the appellant moved from working for the builder to working for the respondent; the provision of equipment essential to the work; the direction to perform activities not relevant to painting; and the unexplained admission contained in the claim form and in the letter signed by the respondent. These considerations combine to suggesting that the better conclusion is that the appellant was the "worker" of the respondent at the relevant time when he was injured. To the extent that Moran CCJ reached the opposite conclusion I respectfully consider that he erred. In a week of considering many such cases this is the one closest to the borderline. But in my view it just gets over. Having reached that view I am duty bound to give effect to it. ORDERS The orders which I favour are: 1. Appeal allowed; 2. Set aside the award of the Compensation Court of New South Wales (his Honour Judge Moran); 3. In lieu thereof, order that the proceedings be returned to the Compensation Court to consider the entitlement of the worker to an award under the Workers Compensation Act 1987; 4. Order that the respondent pay the appellant's costs: (a) in the Compensation Court of New South Wales; and (b) of the appeal to this Court and in respect of the costs of the appeal the respondent, if otherwise so qualified, have a certificate under the Suitor's Fund Act 1951. 6 UNREPORTED JUDGMENTS Clarke JA The engagement of a painting contractor to paint a persons home or the interior or exterior, or part of the interior or exterior, of that home is a regular incident of life. Although there is an obvious danger in drawing conclusions from generalisations the relationship between home owner and painting contractor would invariably be understood as a contract for services. Of course a home owner could employ a painter to paint his or her home but this would, I apprehend, be a relatively unusual circumstance. In the present case the appellant, being a painting contractor of many years standing, would normally be seen to be an independent contractor who provided services for others, whether for a fixed fee or for an hourly rate. Furthermore, he would usually be seen as an independent contractor whether or not he supplied the paint - indeed if he was engaged at an hourly rate it may be expected that the home owner would pay for the paint. Similarly the hiring of a compressor, which would presumably only occur because the painting contractor did not own one, would not, of itself, provide a strong indicium that the occasion was one in which the contractor undertook the painting as a servant. It is for these reasons that I consider that the court cannot overlook the fact that the appellant had for many years operated as a painting contractor who supplied services to owners of properties when it searches for the correct characterisation of the contract between the parties in this case. Having said that, and having considered the various indicia, to which the Acting Chief Justice and Cole JA have referred in detail (and which I see no purpose in repeating in this judgment), I have concluded that Moran CCJ was correct in his characterisation. Those indicia on which the appellant relies do not support the proposition that the appellant ceased to work as an independent contractor and commenced employment with the respondent and do no more than demonstrate, in my view, that the appellant had hired his services (and those of his son) as a painter to the respondent on the not unusual basis that the latter would provide the paint and the compressor and would pay him an hourly rate. I agree with the reasons and orders of Cole JA. Cole JA The issue on this appeal was whether the Court should disturb 8 finding by Moran J in the Compensation Court that John Campbell Graham, the appellant and applicant in the court below, worked as an independent contractor to and was not a worker employed by the respondent Bruce Chick. LEGAL PRINCIPLES The appeal is not limited to a point of law as the proceedings were commenced after the coming into operation of the Compensation Court (Amendment) Act 1989. Whilst the question whether the appellant was a "worker" is essentially one of fact which this Court may review,! this Court in reviewing the finding of fact by a specialist tribunal categorising the appellant as an independent contractor should have a "proper sense of modesty" when reviewing that finding?. In this case most of the facts were not in dispute: it is the characterisation of the factual circumstances which was the substantial issue. FACTUAL CIRCUMSTANCES 1. Commercial Union Worker's Compensation Ltd v Smith and Ors (unreported) Court of Appeal, 19 May 1994, per Kirby P, at 9 2. Connelly v Wells (1994) 55 IR 73 at 86. URJ GRAHAM v CHICK (Cole JA) 7 The appellant suffered injury to his leg and foot on 13 November 1989 when he fell from a ladder. At the time he was engaged in painting the roof of the respondent's premises. The appellant was then aged 49 years. The trial Judge found the following facts: "1. The Applicant had carried on the business as a painter and decorator in his own home for 25 years. Sometimes he would give a quote and sometimes he would give an hourly rate of pay. 2. The work performed by the Applicant for the respondent at the time of his injury was work incidental to the trade or business regularly carried on by the Applicant in his own home. 3. The Applicant employed his son in the business at the time of his injury. 4. The Respondent agreed to buy the paint and to pay for the hiring of the air compressor and spray gun. 5. The Respondent agreed to pay for the work to be done by the hour calculated at $25.00 per hour. $15.00 per hour for the Applicant and $10.00 per hour for the Applicant's son. The payment for the total hours worked was to be paid to the Applicant. 6. The Applicant was to pay his son out of the monies received from the Respondent. 7. The Applicant intended to deduct wages tax from the money paid to his son. The Applicant's wife did deduct tax from the son's earnings but later repaid the son. 8. The Applicant kept a record of the hours worked and he assumed the Respondent did the same. 9. The Respondent directed the Applicant as to what was to be painted and what colour paint was to be applied. 10. While the Applicant was doing the work the Respondent came and inspected it from time to time. 11. During the time the Applicant was working on the roof the Applicant helped the Respondent round up some sheep and the time spent was included in his hours. 12. The Applicant commenced work at 7am depending on the weather and the condition of the roof. 13. The Applicant was free to start and finish whenever convenient to him. 14. The applicant supplied his own brushes and ladder, although it was suggested that brushes may not be needed because the roof was to be spray painted. 15. The Respondent would not be deducting income tax from any payment. 16. After the accident the Applicant's son competed the painting of the roof and the Respondent paid the Applicant a further $380.00."3 Upon the basis of the above facts the trial Judge found the appellant to be an independent contractor not a worker. The appellant challenged the findings in para3, paraS, para7, para8 and para13. Regarding fact 3, there was evidence that the appellant had for 25 years conducted the business of a painting contractor, and so advertised in the yellow pages and elsewhere, and from time to time employed his son to assist in that business. Both were working painting the respondent's house roof at the time of injury. 3. Appeal Book, at 96-97. 8 UNREPORTED JUDGMENTS Regarding fact 5, the Judge's finding accords with the evidence+. Regarding fact 7, the appellant gave evidence: Q. "You would pay him his $10.00 an hour less tax?" A. "Yes, yes." Q. "You would provide your son with a group certificate each year for taxation?" A. "No, he never had - was with me that long to supply one."5 There was thus evidence to support that finding. Regarding fact 8, Mr Graham gave evidence that he kept a record of the hours worked®. The respondent obviously did because he paid a cheque for hours worked to Mr Graham the day after the accident without receiving an invoice. Fact 13 was supported by oral evidence." The attack upon the factual findings fails. BASIS OF THE APPEAL The appellant in written submissions advanced two bases for contending that the trial Judge's characterisation was wrong. First, it was argued that the nature of the relationship between the appellant and the respondent changed on about 9 November 1989. Second, it was said to be the respondent's intention that the appellant be his employee. Dealing with the first matter, prior to 9 November 1989 the appellant had contracted with Mr Burton, a builder engaged by the respondent to perform building work. The appellant was a sub-contractor to Mr Burton. The arrangements between the appellant and Mr Burton ceased when the Mr Chick ran out of funds. There was then a discussion between the appellant and the respondent. The appellant said that it was "decided to finish the job on wages only"''. Mr Chick said to him: "T'll pay you $15 an hour and your son $10 an hour." to which the appellant said to the respondent:"yes that would be good".9 The change in the position of the appellant from a sub-contractor to a builder in contract with the respondent, to a person in a direct contractual relationship, be it as subcontractor or worker, does not reflect upon the manner in which the new relationship is to be characterised. In my opinion such change does not assist in that characterisation, nor does it cast doubt upon the characterisation made by the trial Judge. The second matter advanced in written submissions was that the respondent intended the appellant to be his employee and made statements consistent with that intention. As Gleeson CJ made clear in Connelly v Wells!°, such statements of intention or assertions of status are "usually unhelpful and legally irrelevant'. In my view they have that characterisation in this instance. A third submission was that this case was "almost indistinguishable" from Articulate Restorations and Development Pty Ltd v Crawford!!, in which a person was held to be a worker in circumstances where his initial proposal for payment by way of lump sum was, before acceptance of that proposal, amended to payment at an hourly rate. It is clear from the decision in Articulate that the manner of payment is a circumstance to which regard must be had, but it is one Appeal Book, at 11R Appeal Book, at 25-26. Appeal Book, at 141. Appeal Book, at 24K-24N, 86M-86N. Appeal Book, at 11M Appeal Book, at 11S-11U. (1994) 51 IR at 74 (1994) 57 IR 371. roe rnauns URJ GRAHAM v CHICK (Cole JA) 9 only of the totality of circumstances to be regarded in determining the classification of independent contractor or worker. The classification in Articulate depended upon its particular circumstances, as does this case. The mere circumstance that payment was agreed at an hourly rate does not necessarily result in a finding that the recipient was a worker. In oral submissions Mr Barry QC, Senior Counsel for the appellant advanced additional matters. The error pointed to in the judgment was said to be found in the following passage: "After considering all the evidence I can see little difference between the relationship the Applicant had with Mr Burton, the builder, and his later relationship with the Respondent except that he was paid by the hour rather than by an overall quote for the job. It was not suggested by Counsel for the Applicant that his client was a worker employed by Mr Burton in the previous 2 or 3 months."!2 Mr Barry pointed to the evidence indicating that the arrangement with Mr Burton was one of subcontractor in which the appellant, for a lump sum, provided equipment, paint and labour to perform the work. In contrast the arrangement with the respondent was that the respondent would pay for paint and equipment and pay an hourly rate for the labour of the appellant and his son. The former was categorised as a subcontract with an independent contractor to the respondent, whereas the latter was categorised by Mr Barry as merely being the selling of labour. There is force in this submission for there are significant distinctions in the obligations of each of the appellant and the respondent under the two different arrangements. However I think the purport of the trial Judge's finding in the paragraph quoted is clear, namely, that from the point of view of the appellant, he remained a painting contractor previously paid as such pursuant to a lump sum subcontract by the builder but subsequently paid as a painting contractor by the owner respondent on an hourly basis. For that reason I do not think the passage discloses error although it may have been more felicitously expressed. It was next submitted that the evidence disclosed admissions by the respondent that he was the employer of Mr Graham, rather than being in an independent contractual relationship with him. Those submissions were said to be found in a letter to the Compensation Court from Mr Chick providing documents subpoenaed from him. The letter Mr Chick wrote in response to an inquiry apparently regarding cheque butts for payments made stated that "there were no similar employees as the remainder of the building work was undertaken by Mr Maurie Burton on contract."!3. Thus it was said that the Mr Chick after commencement of proceedings acknowledged the appellant as an employee. Secondly, it was said that in an employer's report of injury which the respondent had lodged with an insurer under a policy the nature of which was not disclosed by the evidence, the respondent had indicated that the appellant was a casual employee and had placed a dash, indicating inapplicability, beside a question asking "if worker is not an employee, explain relationship (eg contractor)". Further in the report of injury, against the question "what is the worker's current minimum weekly wage rate?", Mr Chick had written $25.00 p/hour. 12. Appeal Book, at 97E. 13. Appeal Book, at 71 10 UNREPORTED JUDGMENTS Mr Chick is a veterinary surgeon, not a lawyer. In my opinion there is great force in the statement by the Chief Justice in Connelly v Wells that statements by laymen of their understanding of whether a person is an employee or subcontractor is "usually unhelpful and legally irrelevant". This Court spends a considerable time deciding cases on appeal from judges who have expressed views on that very point in particular circumstances. In my view little weight can be attached to any such so called admission by a layman when the very matter in dispute before this Court involves the question of the characterisation of the relationship requiring, as it does, a careful balancing and weighing of a plethora of facts and circumstances. The reality is that such facts and circumstances are neither considered nor assessed by a layman prior to making any so called admission, even were the layman aware of the various facts and circumstances which require consideration. A further matter raised by Mr Barry QC as indicating an employer employee relationship was the circumstance that, whilst at the premises being painted, the appellant had assisted the respondent to round up some sheep and been paid at the hourly rate. This was said to indicate control by the respondent of the appellant, and his activities. I regard this submission as quite unrealistic. The evidence was as follows: Q. "Incidentally, one thing that emerged in Armidale, had you done sheep work for Mr Chick before?" A. "He'd only - Mr Chick had been away with." Q. "On occasions other than the occasion where you were painting the roof and fell, had you done some general maintenance work for Mr Chick prior to this?" A. "Only helping him with rounding up some sheep." Q. "Is the answer, 'yes'?" A. "Yes." HIS HONOUR Q. "The question was 'had you done general maintenance work', and you said 'only rounding up sheep'. Had you done maintenance work or not before?" A. "No." Mr Johnson Q. "When you were rounding up sheep for Mr Chick, how were you paid, were you paid on an hourly basis or were you paid a contract lump sum; did he pay you for the hours you worked or how did he pay you?" A. "WELL, IT WAS JUST ON A HELPING BASIS there, like we were on the job and..." HIS HONOUR Q. "Did he pay you at all?" A. "Well, we were waiting on the roof, and it was while we were working on there on the roof, we helped him this type of work." Q. "Was it included in your hours?" A. "Yes, your Honour." Q. "This occasion when you helped him to round up sheep, was this during this week that you were working on the roof or was it the earlier time when you were working there for the builder?" A. "No, it was while I was starting cleaning the roof down. " Q. "So it was all included in that 3 days or so that you were there?" URJ GRAHAM v CHICK (Cole JA) 11 A. "Yes."!4 (Emphasis added) In my view it is apparent that whilst waiting on the roof during some aspect of the cleaning process, "on a helping basis", Mr Graham assisted in rounding up some sheep for which he was paid. That does not indicate any aspect of control relevant to an employer employee relationship. The reality is that Mr Graham was, as he had been for 25 years, a painting contractor, who was paid either by lump sum or at an hourly rate. In the circumstances mentioned the method of payment changed from the former to the latter when he ceased to contract with the builder and contracted direct with the owner. He remained, however, an independent contractor. In my opinion no reason has been shown to disturb the finding of the trial Judge. The appeal should be dismissed with costs. Appeal dismissed with costs. COUNSEL: Appellant: CT Barry QC/AR Johnson Respondent: DR Russell SOLICITORS: Appellant: Tilbury and Co Respondent: Ellison and Co 14. Appeal Book, at 31-32.