MARSHALL and ANOR T/AS THE PARTNERSHIP B AND J MARSHALL v ANDREWS and ANOR [1995] NSWCA 274

MARSHALL and ANOR T/AS THE PARTNERSHIP B AND J MARSHALL v ANDREWS and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY ACJ, HANDLEY JA and ROLFE AJA 19 July 1995, 23 August 1995

10 [1995] NSWCA 274

WORKERS' COMPENSATION — principal and contractor — agricultural work — worker injured — who is "the principal" for Workers Compensation Act 1987, s20 — who is the "contractor" — held: (by maj): The principal may include a person higher in the chain of contracting. WORDS AND PHRASES — "other agricultural work" — "employed in the

execution of the work" — "under".

WORKERS' COMPENSATION — uninsured employer — WorkCover Authority pays compensation — whether Compensation Court can order refund by principal 20 — held: It can.

WORKERS' COMPENSATION — principal and contractors — liability of ie principal — worker employed in loading wheat onto truck for movement to a silo — worker's direct employer uninsured — that employer works under a contractor engaged by farm owners — worker originally paid compensation by WorkCover Authority — brings proceedings in Compensation Court for recovery of compensation against Authority or farm owners as "the principal" under s20(1) of the Workers Compensation Act 1987 — Truss CCJ upholds claim against farm owners as "the principal' and enters award against them — on appeal to the Court of Appeal — held: (Kirby ACJ and Handley JA; Rolfe AJA dissenting): (1) No error 30 was shown in the finding that the farm owners were "the principal', and that the liability under s20(1) of the Act attached to them; (2) The exclusion for agricultural work under s20(3) did not apply, as it was limited to cases of workers employed by the contractor and the injured worker

WORDS AND PHRASES — "in the execution of the work" — "under" — "other 35 agricultural work".

was not so employed; (3) (by the Court): The order in the award requiring the repayment of compensation by the principal to the Authority for monies paid as compensation for ie uninsured employer was not erroneous and would not be disturbed. Frauenfelder v Reid and Ors (1963) 109 CLR 42; Moir v Schrader and Anor (1936) 56 CLR 310 applied. Workmen's Compensation Act 1916, s8. Workers' Compensation Act 1926, s6(3)(a). Workers Compensation Act 1987, s20, s145. Workmen's Compensation Act 1906 (GB), s4. 45 ORDERS Appeal dismissed with costs.