[1989] VR 878
MAYNE NICKLESS LTD v MACKINTOSH
SUPREME COURT OF VICTORIA FULL COURT
MURPHY, GOBBO and PHILLIPS JJ
16-17, 21 November 1988, 17 February 1989
[1989] VR 878
Accident compensation — Construction — Independent contractor — "Deemed
worker" — "Deemed employer" — "Relevant contract" — Earnings — "Pre-injury
average weekly earnings" — Ascertainment where "deemed" worker — "Partial
incapacity" — Entitlement to compensation — Onus of proof — Accident
Compensation Act 1985 (No 10191), s9, s94, s95, s113.
.
M, a truck driver, owned his own truck and drove it under an arrangement with
SP. He was required by SP to wear, and he wore, a uniform; the prime mover of
his truck was painted in SP's colours; he carried an "Employee's
Identification" card and, until the accident in January 1986, he worked
exclusively for SP. He paid for his own petrol and running costs, was paid
monthly for work carried out, without deduction of tax, and had no entitlement
to sick or holiday pay. There was no contract in writing. In October 1985, M
began operating a second truck driven by another driver in work for SP and
another company. In January 1986 the respondent purchased a third vehicle
which was used in work for SP. On 16 January 1986, M was injured whilst
performing duties for SP.
The Accident Compensation Tribunal determined that by reason of s9 of the
Accident Compensation Act 1985, the respondent was deemed to be a worker, and
that he should be awarded weekly payments of compensation, of an amount to be
calculated having regard to his average weekly earnings. On appeal to the Full
Court:
Continue Reading This Report
[1989] VR 878
Best Value
Digital Subscription
$45/mo
or $450/yrSAVE $90