CARUSO v EWART [2012 WADC 181]
The issue in this case was whether Mr Ewart was a "worker" within the meaning of the Workers Compensation and Injury Management Act 1981, WA.
Although turning on its facts, it addresses all of the features of the frequently litigated question of "employee or sub-contractor" as well as the broader question of whether or not the claimant is a "worker".
Ewart claimed compensation following a fall from a ladder and argued that he was employed under a contract of service by Caruso. His work was that of a painter handyman. He had a business name that he had used before and the evidence pointed to a sub-contract rather than an employment contract. However, it was also clear that his pay was probably "in substance for his personal manual labour or services", in which case, even if found to have been engaged under a contract for services, he may nevertheless be a "worker" and therefore entitled to compensation.
As a sub-contractor, Ewart had been working on the Admiral Stirling Inn at Margaret River which was being restored by Caruso. However, it was found that, at the time of his injury, the work on the Inn had finished and he was carrying out work on his brother's property. He had nevertheless been asked to carry out this work by Caruso, who was also going to pay him (the judgment does not explain in detail how this arrangement came about).
The arrangement was critical because at the time of the injury, the employment (by sub-contract) was of a casual nature. This would not ordinarily have been fatal to the claim, except that Ewart had finished working on Caruso's property, which may have been regarded as relevant to Caruso's trade or business, and taken on the other job which, although being paid for by Caruso, was not evidently for his trade or business.
Accordingly, relying on the definition of "worker" under the Act, the application for compensation was dismissed.
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