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No time donations: injured man was a "worker" and not a volunteer

A person who was injured while aged in his mid-teens has been found to be an employed "worker" for workers compensation purposes by the Local Court of the Northern Territory.

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A person who was injured while carrying out work for an air conditioning business has been held to be neither employed by a sub-contractor nor carrying out voluntary work.

He was held to be an employed "worker" for workers compensation purposes by the Local Court of the Northern Territory. 

Facts and background


James Tiedeman was just under 17 years old when he suffered an electric shock while working on an air conditioner in the Palmerston area of the Northern Territory on 18 October 2013. He consequently experienced a serious shock to his right hand. He subsequently made a claim under the Workers Rehabilitation and Compensation Act (since amended and renamed the Return to Work Act) on or about 20 August 2014. 

James worked alongside his cousin, Jeffrey Tiedeman, on a variety of air-conditioner related tasks. These included lifting air conditioners, passing tools, breaking up old air conditioners and other such activities. 

This work was done at the direction of one Adam Champion who conducted business servicing and installing air conditioners and traded under the registered business name "Cold As Ice Airconditioning".

Mr Champion had not, at any point, taken out an insurance policy under the Act. 
 
A question of law arose early in the litigation as to whether James fell within the definition of "worker" within the Act. 

The law

 
As at 18 October 2013, the date of the accident, a “worker” according to s3 of the Workers Rehabilitation and Compensation Act (the Act) was a natural person who, under a contract or agreement of any kind, performed work or a service for another person.

However, under that legislation, a person was not a worker if he or she was paid to achieve a specified result or outcome; had to supply plant, equipment or tools, needed to perform the work or service; or would likely be liable for the cost of rectifying any defect arising out of the work or service performed. 

A person who was employed in voluntary work and who only received reasonable travelling, accommodation and other out-of-pocket expenses was also not a "worker". 

Section 150 of the Return to Work Act (NT) establishes a statutory corporation called the "Nominal Insurer" which has the purpose of protecting injured workers whose employers do not have workers compensation insurance.  

In issue

 
In issue was whether James was employed by anyone at all, and, if so, by who? Or was he a volunteer?  

Arguments

 
James argued that, at the time of the accident, he was an employed worker in the employ of Mr Champion and that he suffered injury within the course of his employment. Accordingly, the Nominal Insurer was liable to compensate him for his injury and for consequent psychological upset. 

The Nominal Insurer argued that James was not employed by Mr Champion at any material time. It argued, instead, that he was employed by his cousin, Jeffrey. Alternatively, he argued that James was a volunteer providing services to his cousin and was therefore not a worker as defined in the Act. 

Considerations


Judge Neill of the Local Court generally preferred the evidence of James and Jeffrey Tiedeman as they appeared to try their best to answer their questions honestly and without avoiding difficult questions. The judge stated that he did not believe the account of Mr Champion.

It was held by the Local Court that Jeffrey worked solely in Mr Champion's air conditioning business as a sub-contractor and that he was subject to Mr Champion's directions as to where he was to work and what work he was to do. James also worked in connection with Mr Champion's air conditioning business. Mr Champion directed James both face-to-face, and via Jeffrey, as to what work he had to do. 

Jeffrey did not pay James for any of the work whereas Mr Champion did. 

Accordingly, it was held that James had entered into an agreement to perform work for Mr Champion. James did not perform any work for Jeffrey nor had he engaged in any voluntary work. 

Decision


Judge Neill ruled that James Tiedeman  was a "worker" within the meaning of the Act who was in the employ of Mr Champion. He further ruled that James sustained an electrocution injury to his right hand in the course of employment with Mr Champion. He further ordered that the remaining issues proceed to trial at a date to determined. 
 
The bottom line: One of the elements a worker needs to prove when making a claim for an injury suffered at work is that the injury was sustained in the course of employment. This means that the worker needs to be an employee of the business, and not merely a contractor or volunteer.

Read the judgment

 
James Tiedeman v Adam Champion [2018] NTLC 14
 
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