QBE WORKERS COMPENSATION (NSW) LIMITED v SIMARU PTY LIMITED & ANOR [2005] NSWCA 464

Reported Decision : (2006) 14 ANZ Insurance Cases 61-682

New South Wales Court of Appeal

QBE WORKERS COMPENSATION (NSW) LIMITED v SIMARU PTY LIMITED & ANOR [2005] NSWCA 464 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 23 November 2005

JUDGMENT DATE: 20 December 2005

JUDGMENT OF: Mason P at 1; Santow JA at 37; Campbell AJA at 38

DECISION: Appeal dismissed with costs

CATCHWORDS: INSURANCE – occupier liable in negligence – insurer's liability to indemnify – statutory Employment Insurance Policy – whether injured person was a deemed worker – Schedule 1 Cl 5 Workplace Injury Management and Workers Compensation Act 1998 – direct marketing of cookware products – sales arranged at hostesses' homes – salesperson under cl 5 – characterisation of remuneration as a commission – where seller is a registered business – whether incidental to an independent trade or business. (ND)

Workers Compensation Act 1926 LEGISLATION CITED: Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Davis v Pioneer Concrete (NSW) Pty Ltd [1976] 1 NSWLR 562 CASES CITED: Drielsma v Manifold [1894] 3 Ch 100 Humberstone v Northern Timber Mills (1949) 79 CLR 389 Turner v Stewardson [1962] NSWR 137

QBE WORKERS COMPENSATION (NSW) LIMITED PARTIES: SIMARU PTY LIMITED t/as BESSEMER SALES QBE MERCANTILE MUTUAL

FILE NUMBER(S): CA 40712/2004

Appellant: K Andrews COUNSEL: 1st Respondent: M Christie/ M Izzo 2nd Respondent: J McIntyre SC/ D Morgan