Reported Decision : (2001) 22 NSWCCR 557 Compensation Court of New South Wales CITATION : Lanesbury v Air Card Pty Ltd [2001] NSWCC 180 PARTIES : Cheryl Lanesbury Air Card Pty Ltd MATTER NUMBER(S) : 36941 of 2000 JUDGMENT OF: Curtis J at 1 CATCHWORDS: Elements of Workers Compensation :- s 4A of Workers Compensation Act 1987 Estoppel LEGISLATION CITED: CASES CITED: DATES OF HEARING: 29/10/01 DATE OF JUDGMENT: 10/29/2001 FOR APPLICANT: LEGAL REPRESENTATIVES: FOR RESPONDENT: JUDGMENT: 1. The applicant Cheryl Lanesbury claims compensation from Elite Express Distribution Pty Ltd alleging that on 3 April 1998 she suffered injuries in the course of employment by that employer as a courier driver. The application recites that in the alternative, Elite Express Distribution Pty Ltd was a principal pursuant to s 20 contracting with the applicant's employer Air Card Pty Ltd and is thereby liable to pay compensation to the applicant. The respondent in answer denies that Elite Express Distribution Pty Ltd ever employed the worker and in answer to the s 20 allegation pleads that at the time of her injury the applicant was a director of Air Card Pty Ltd and that the provisions of s 4A disentitle her to compensation. 2. S 20 of the Workers Compensation Act is in the following relevant terms. S 20(1): If any person (in this section referred to as 'the principal') in the course of or for the purposes of a person's trade or business, contracts with any other person (in this section referred to as 'the contractor') for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal is, if the contractor does not have a policy of insurance or is not a self-insurer at the time a worker employed in execution of the work receives an injury, liable to pay any compensation under this Act which the principal would have been liable to pay if the worker had been immediately employed by the principal ... (6): This section does not apply in any case where the injury occurred elsewhere than on, or in or about premises on which the principal has undertaken to execute the work or which otherwise are under the principal's control or management but nothing in the foregoing affects the liability of the contractor under any other provision of this Act. 3. S 4A is in the following terms: 4A. If an employer that is a corporation had not obtained, or was not maintaining in force, at the relevant time a policy of insurance for the full amount of the employer's liability under this Act in respect of an injured worker and the injured worker was at the relevant time a director of a corporation the injured worker is not entitled to any compensation under this Act in respect of that liability. Relevant facts 4. In or about 1995 the applicant and her husband incorporated Air Card Pty Ltd. The applicant and her husband were sole directors and at that stage the company had a workers compensation policy with QBE. The company provided their labour and equipment on a contract basis, at the time of the incorporation to Bowe's Transport Pty Ltd. In 1996 Bowe's Transport lost the head contract. Air Card Pty Ltd was asked by Mr Dale Parker, a principal of the company Elite Express Distribution Pty Ltd, who took over the contract, to continue working. The applicant thereafter performed courier work for Elite Express Distribution Services Pty Ltd as well as additional piecework by way of general sorting for that company. In respect of her services, moneys were paid to Air Card Pty Ltd both in respect of the sorting work and the work of delivering parcels. 5. In or about 1996 the respondent, as a director of Air Card, was approached by Mr Parker, an officer of Elite Express Distribution Services Pty Ltd and the following conversation ensued: Mr Parker: I have been going around different insurance companies, I have come up with a really good deal in workers comp that is much cheaper than you can get Would any of (you) be interested in taking it up. 6. Ms Lanesbury replied to Mr Parker that if the insurance was cheaper than that which was presently held by Air Card she would take up the offer. Mr Parker said that he could arrange workers compensation cover for Air Card for around nine to 10 dollars a week and further said: "I can deduct it out of your cheques before I pay you the cheques." 7. At or around that conversation Elite Express Distribution Services Pty Ltd issued a facsimile to all contractors including Air Card labelled "From Dale Parker". That facsimile included the following statement: To alleviate any future problems regarding workers compensation and public liability insurance we have negotiated with a number of brokers to obtain the best rates possible for all contractors who do not provide us with proof of their own cover. At this stage it would seem that for a fee of eight to nine dollars per week we will able to provide carrier contract carriers with both. 8. By employer's insurance proposal to MMI insurers dated 14 March 1996 Elite Express Distribution Services Pty Ltd, stated to be a "new venture", sought workers compensation coverage in respect of 21 document couriers with an estimate of wages of $450,000. 9. It is common ground that Mr Parker sought coverage in respect of persons employed by companies contracted to Elite Distribution Services Pty Ltd and honestly accounted to MMI in respect of the moneys deducted from amounts payable to Air Card Pty Ltd in respect of the applicant's services. It was in reliance upon these arrangements that Air Card permitted the insurance cover previously arranged with QBE to lapse prior to the applicant's injury. 10. On 3 April 1998 the applicant was delivering pharmaceuticals to a chemist in the main street of Cessnock and while pulling her trolley up the gutter a wheel slipped and she suffered injury. Injury occurred in Vincent Street, Cessnock and I infer that the applicant had parked her vehicle as close as was reasonably possible to the place at which she had to deliver the pharmaceuticals. 11. The first question is whether the provisions of s 20 are satisfied such as to prima facie give the applicant an entitlement to compensation. 12. It is the contention of the respondent that s 20 is not applicable because of the exclusionary condition constituted by s 20(6). It is the respondent's contention that the injury occurred other than in or about premises on which the principal had undertaken to execute the work. This is a question of fact. 13. I am satisfied that as principal Elite employing the services of Air Card Pty Ltd undertook to the pharmacist that the pharmaceuticals would be delivered to the pharmacist's premises. Air Card Pty Ltd, the applicant's employer undertook to execute the work of this delivery; that is, work which required that the applicant go to a place about the premises of the pharmacist. 14. The phrase "about the premises" is a geographical expression denoting close propinquity to the premises (Powell v Brown [1899] 1 QB 157 (CA)) - the provision of a statute being satisfied in that case where the injury occurred while the worker was loading a cart in the street near the entrance to the premises. 15. I am referred by Mr Bradford for the respondent to the decision of Allbut and Coramba Milling Co Ltd v George Kydd King 1928 WCCR 73. That case however dealt with facts distinguishable from the present in that the worker, at the time of his injury, was travelling on a daily journey between his place of abode and place of employment. 16. In the present case the applicant suffered injury when she was geographically about the premises at which the work of delivery had to be performed. I am satisfied that the applicant was an employee of Air Card (this is not in dispute) and that Air Card was the principal in relation to a contract to perform work for Elite Express Pty Ltd. The applicant prima facie is entitled to succeed. 17. The next question then is whether the provisions of s 4A disentitle the worker. S 4A was introduced into the Act by Act number 89 of 1995 with operation from 1 January 1996. It is apparent from the first reading speech of that particular bill that the bill was introduced in response to cost problems arising from the operation of the workers compensation legislation. However, s 4A is not referred to in the speech of the Attorney-General and that observation has no more than historical relevance. 18. My function is to construe the words of s 4A as they appear. It is my conclusion that s 4A applies to the liability of a corporation liable to pay compensation to the worker. Although it is a condition precedent before the operation of s 20 that Air Card was uninsured the compensation payable in respect of any award which the applicant would succeed in recovering against Elite is an award against that company and the applicant was not a director of that company. 19. It may be arguable were a defence of estoppel not otherwise to be made out that the liability in respect of which s 4A speaks may also be a liability related to the liability of the applicant's direct employer. 20. S 20(4) of the Act is in these terms: If the principal is liable to pay compensation under this section, the principal is entitled to be indemnified by any person who would have been liable to pay compensation to the worker independently of this section, and all questions as to the right to an amount of any such indemnity shall in default of the agreement be settled by the Compensation Court. 21. It is my conclusion however that upon these facts Elite Express Distribution Pty Ltd is not entitled to be indemnified by Air Card Pty Ltd and that no liability falls upon Air Card Pty Ltd in respect of the applicant's entitlement to compensation. 22. This is because Elite is estopped from asserting that Air Card is liable because Elite represented to the applicant as a director of Air Card that she would be covered by workers compensation insurance and she as a director of Air Card acted to her detriment upon that representation. 23. In The Commonwealth v Verwayen (1990) 170 CLR 394 at 413 Mason J said this: The result is that it should be accepted that there is but one doctrine of estoppel which provides that a Court of Common Law or equity may do what is required, but not more, to prevent a person who has relied upon an assumption as to a present, past or future state of affairs (including a legal state of affairs), which assumption the party estopped has induced him to hold from suffering detriment in reliance upon the assumption as a result of the denial of its correctness. 24. In the event the applicant is entitled to compensation. A dispute remains between the parties concerning the quantum of that compensation. The respondent has sought to date, to no avail, documents relating to the business of Air Card Pty Ltd which bear upon the quantum of the compensation. It would be unfair to determine this matter without the respondent having access to those documents. 25. Subpoenas have been directed to the applicant for the production of documents in her possession or control, is common ground that documents are held by her accountant. Those records are within her control and it is appropriate that further proceedings be stayed until the documents are produced for inspection by the respondent. 26. I make no order as to costs. Mr T Edwards instructed by Bale Boshev and Associates appeared for the applicant Mr C Bradford instructed by Dexter Healey appeared for the respondent DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.