Anna A Brejwo, Marion J Brejwo v The Public Trustee [2001] NSWCC 33

Compensation Court of New South Wales

CITATION : Anna A Brejwo, Marion J Brejwo v The Public Trustee [2001] NSWCC 33 revised - 4/09/2001 Anna A Brejwo PARTIES : Marion J Brejwo Public Trustee of NSW MATTER NUMBER(S) : 14250 of 1996 JUDGMENT OF: Hughes J at 1 CATCHWORDS: Elements of Workers Compensation - Proceedings to Obtain Compensation - Statutes & Delegated Legislation - Test Catchword :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 10/06/99, 27/8/99, 27/10/99, 10/11/99, 06/12/99, 10/ 05/00, 15/08/00. DATE OF JUDGMENT: 04/23/2001

FOR APPLICANT: Mr P Hall QC and Mr A Edwards instructed by Burgess Stoat . LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr J Poulos QC and Ms E Wood instructed by Sparke Helmore.

JUDGMENT:

Pleadings 1. By Amended Application for Determination filed on the 22nd April, 1998, the applicant claims benefits pursuant to Section 25 and in the alternative Section 26 of the Workers' Compensation Act, 1927. She claimed for both herself and on behalf of the dependent children of the deceased, Marion Jan Brejwo, who she alleges suffered an injury whilst in the employ of the respondent or in the alternative causing an aggravation, acceleration, exacerbation or deterioration of a disease. The respondent denies any work related injury, or that the deceased was a worker, or deemed worker. Issues 2. Applicant Ann Brejwo claims lump sum benefits pursuant to Section 25 of $211,850.00 and $66.00 per week pursuant to Section 25(I)(b) for each of the children while dependent. 3. The respondent denies that the applicant was injured as alleged or that there was any aggravation, acceleration, exacerbation or deterioration of a disease, or that the deceased was a worker for the purposes of the Act or a deemed worker pursuant to Schedule 1.2 of the Act. History 4. In 1975 the applicant, whilst pregnant with Mary Brejwo, was involved in a motor vehicle accident. The child was born profoundly disabled in February, 1976. 5. In 1979, the deceased Marion Jan Brejwo left his employment at Tubemakers of Australia as a Crane Chaser where he had worked for 25 years in order to assist with the care of his daughter and for his still convalescing wife. The applicant had, of course, been injured in the car accident that resulted in the tragic injuries to Mary. 6. A common law action with the applicant as tutor for Mary was settled before His Honour Mr Justice Slattery on the 14th October, 1985. The infant settlement had to be approved by His Honour. The settlement involved $1,500,00.00 out of which a sum of $150,000.00 for the purpose of the erection of a house for the family, disbursements and other costs were ordered by His Honour and a balance of $1,349,034.00 was to be paid to the Public Trustee to be held in trust for the infant Mary Brejwo. In addition, His Honour ordered I further order that so long as the mother, Ann Agatha Brejwo, shall continue to reside with and materially assist in the daily care and management of the plaintiff, the public Trustee shall pay to her the sum of not less than $150.00 per week. I also order that so long as Marion Brejwo shall continue to reside with and materially assist in the daily care and management of the plaintiff, the Public Trustee shall pay to him the sum of not less than $150.00 per week. I further order that either the tutor, Ann Agatha Brejwo or the Public Trustee be granted liberty to apply to the Court on seven days notice to the other in respect of all matters pertaining to the management, investment and expenditure of capital and income of the proceeds of judgment. I further grant liberty to the plaintiff or solicitor to apply in respect of any further orders for costs. 7. In addition, after he ceased work Mr Brejwo was paid, until shortly before his death, a Carer's Pension by the Department of Social Security. 8. Over the years further children were born to the family, the last child Lloyd Brejwo having been born on 25th November, 1985. 9. The family regularly went on holidays in a 23 foot caravan to Barrington Tops and from there in Easter 1992, the deceased returned home not feeling well. Soon after his return, he was admitted to the Mater Hospital on the 29th April and was discharged back home on the 6th May. Whilst in the hospital he developed central chest pain. 10. About the 7th May, Mrs Brejwo and two of her sons attended the Neil Diamond concert in Sydney. On the 11th May, 1992 Mrs Brejwo whilst in bed at home heard irregular breathing and assumed her husband was having an asthma attack. Her husband was in a separate bed in Mary's room. She tickled his feet to get him to respond, and as he didn't, she called an ambulance. He died before the ambulance arrived. Questions to be Answered 11. Was there a relationship of master and servant between the deceased and the respondent? 12. Was the deceased a deemed employee? 13. If so, did the deceased suffer an injury arising out of or in the course of his employment? 14. If no, did the deceased suffer an aggravation, acceleration, exacerbation or deterioration of a disease? Relevant Legislation 15. Workers' Compensation Act 1987 Work Place Injury Management Act. 1998. Question of Law 16. If it cannot be established that the deceased was an employee of the respondent by way of a contract of service, contracted in NSW then the applicant must fail. Respondent's Submission 17. The respondent submits that there was no intention to form a legal relationship between the Public Trustee as agent for Mary and Mary's father. 18. The respondent submits that the existence of a policy of workers compensation is merely the action of a cautious conservative prudentially minded organization covering the possibility of all risks whether actual or not. 19. Further, that prior to the Judgement of His Honour Mr. Justice Slattery the deceased had left his employment with Tubemakers and had been a full time carer for Mary as a volunteer, albeit with a pension from Social Security for about six years before the allowance of $150.00. The applicant gave evidence that they would have looked after their daughter even if there had been no money from the court case or that it had run out. This, it was submitted clearly illustrated that the work done was voluntary rather than work done in accordance to a contract. Where work done is voluntary in nature there can be no contract of employment. (Teen Ranch Pty. Ltd. v Brown (1995) 11 NSW CCR 197) 20. The Respondent also submits that without the element of mutuality between the Public Trustee and the deceased and the making of the arrangement which was set up by the Supreme Court the applicant cannot impute into the relationship between the deceased and the respondent any intention to create a legal relationship. It is clear also that on the deceased's part his motivation for the performance of his duties, namely the care of his daughter, was of altruistic intention and obligation to his family. The relationship between the father and Mary (for whom the respondent was acting as trustee) came into being because of the relationship between the father and daughter and was as a result of the natural love and affection which one would expect in such relationships. 21. In Cameron v. Hogan (1934) 51 CLR 358 at page 370-371 the majority of the High Court said that where the arrangement stands apart from private gain and material advantage there must be some clear positive indication that there was contemplation to create a legal relationship. Arrangement between the public Trustee and the deceased did not reflect an intention to create a legal relationship between the parties. 22. Further, the indicia that are usual in a relationship of master and servant are absent I. The Respondent has no control over the deceased. Any variation of conditions has to be pursuant to a Court Order. I further order that either the tutor, Ann Agatha Brejwo or the Public Trustee be granted liberty to apply to the Court on seven days' notice to the other in respect of all matters pertaining to the management, investment and expenditure of capital and income of the proceeds of judgment. I further grant liberty to the plaintiff or solicitor to apply in respect of any further orders for costs. II. Mode of Remuneration The allowance was not paid separately, but was in a single cheque together with Mrs Brejwo's allowance and the much larger sums for utilities clothing etc which at the date of the death of the deceased amounted to $3,500.00 per month. III. The obligation to work, the hours of work, the provision for holidays and the deduction of income tax. IV. The right on the part of the employer to have a particular person to do the work. V. The right to suspend or dismiss the person VI. The right to the exclusive service of the person engaged. VII. The right to dictate the place of work, hours of work etc. (see generally Knowles v Anglican Church Property Trust (1999) 89 IR 47 p47 @pp76.8 to 81.2) Deemed Worker