Marshall
v. Whittaker's Building Supply Co

Judges: Kitto J, Taylor J, Menzies J and Owen J

Windeyer J

Subject References:
Workers' compensation
Independent contractor
Whether "worker"

Legislative References:
Workers' Compensation Act 1912 (W.A.) - s 5

SYDNEY

Judgment by:
Windeyer J

WINDEYER J. The question in this case is whether Richard Leslie Marshall, who was killed while felling timber for the respondent, was a "worker" within the meaning of the Workers' Compensation Act, 1912-1960 (W.A.). He was at the time of his death employed under a contract to fell timber and cart the logs for the respondent, Whittaker's Building Supply Company, which is the trade name of an unincorporated partnership, who were the holders of a sawmilling permit under the Forests Act, 1912 (W.A.). This permit authorized them, for payment of a royalty, to obtain log timber from marked trees in a forest area some fifty-five thousand acres in extent and to saw it at a sawmill in the area. Their mill manager engaged Marshall, who was an experienced timber feller, to cut certain "dieback" trees, to be indicated by a forester, in the permit area, to trim them and haul the logs to the mill. Marshall was to be paid PD3 per load for millable logs and was expected to deliver fifty loads a week. He brought his own equipment, a mechanical chain saw, a truck with a power winch, chains, axes and so forth, as is customary with tree fellers. And also, and this again is common in the industry, he employed an assistant known as a "swamper". The swamper's main duty is said (in the reasons for the decision of the Workers' Compensation Board) to have been to clear tracks and help with the loading of the truck. The term "swamper", used in this sense, comes from the logging and lumber industry in the United States.

On an application by the present appellant, Marshall's widow, the Workers' Compensation Board made an award in her favour. It held that Marshall was a "worker" within the meaning of the primary definition of the word in s. 5 of the Act as "any person who has entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour, clerical work or otherwise ...". The Board also found that Marshall was a worker within the meaning of what has been called the "extended definition", relating to workers in the timber industry, which is as follows: "The term `worker' ... also includes-(a) ... (b) any person working in connection with the felling, hewing, hauling, carriage, sawing, or milling of timber or firewood, or both for another person who is engaged in the timber industry or firewood industry, or both, for the purpose of such other person's trade or business under a contract for service, the remuneration of the person so working being in substance a return for manual labour bestowed by him upon the work in which he is engaged."

At the request of the respondent the Board, pursuant to s. 29 (9), stated a case for the decision of the Supreme Court. It set out the facts it had found, annexed the reasons it had given for its decision and asked did it err in law in holding that the deceased was a "worker" within the definitions in the Act. The Supreme Court (Wolff C.J., Jackson S.P.J. and Hale J.) held that the Board did err in law and that it was not open to it on the facts found to conclude that the deceased was "a worker" within the meaning of the Act. From that decision this appeal is brought to this Court.

Counsel for the appellant at the outset of his argument submitted that the question was one of fact and therefore not susceptible of being made the subject of a stated case, which is only available to raise a question of law. This was one of the grounds taken in the notice of appeal. But the proposition in quite untenable. In Bagnall v Levinstein Ltd ^[F1] , a case under the Workmen's Compensation Act, 1897, Collins M.R. said: "We have been pressed in argument with the difficulty that the question before the learned judge was one of fact on which he has decided, and that this Court has no jurisdiction to interfere with his decision. But as has been pointed out repeatedly in this Court, and has received the sanction of the House of Lords, the question in such a case is a mixed one of law and fact, and when the facts are found it is a question of law whether they bring the case within the Act". This is directly applicable here in relation to the primary definition, for the question is: was the deceased a servant or an independent contractor? The relevant facts being found, the legal nature of the relationship created is a matter of law. But the question secondly argued (the first asked in the case stated), that founded on the extended definition, is in a rather different position. The matter the Board had there to determine was not whether a recognized category of legal relationship, master and servant, existed. It was whether, on the basis that there was not that relationship, the contractual remuneration of the deceased man answered "in substance" to the description in the definition. That is a question of fact which does not necessarily admit of an absolute answer as a matter of law. Nevertheless, the facts being found, it can be asked whether, as a matter of law, the Board was bound to come to a different conclusion from that which it did.

The manner in which the question in the stated case is framed may be open to criticism, but I take it that is what is meant: see Ross v Ross & Bowman Pty Ltd ^[F2] , per Jordan C.J. The Board annexed to the stated case a copy of its reasons for its decision. This is a common practice, and it has had some qualified approval in New South Wales: Way v Ridley ^[F3] . But argumentative material cannot be part of a case stated. The Board's reasons can, I think, only be used by the Court to the extent that they contain some further express findings of fact in elaboration of the express statements in the case itself. They may, however, be illuminating in a case such as this, where the question is whether the Board's conclusion was open to it on the facts found. That is because the Board's finding, although open to it, may be seen to be unreliable because based on unsound reasoning. A simple answer, favourable to the Board's decision, to the question of law submitted by it can in such a case have misleading consequences for other cases. But it is possible to guard against that. The form that a case stated should take has often been pointed out: see The Queen v Rigby ^[F4] . I think this one met the requirements, and that there was no substance in the objections made by counsel for the appellant. Nor do I think there was any substance in his suggestion that the matter had been approached in the wrong way in the Supreme Court-as if, he said, it had been an appeal on the facts. Moreover, the question for us is not whether the learned judges in the Supreme Court approached the question correctly, but whether they answered it correctly.

The procedural objections made by the appellant being therefore out of the way, I turn now to the questions of law that we have to decide, and first to the primary definition of "worker". This depends on the distinction between a servant and an independent contractor. That is rooted fundamentally in the difference between a person who serves his employer in his, the employer's, business, and a person who carries on a trade or business of his own. First formulated in its modern form in relation to vicarious liability, the distinction came somewhat deviously and indirectly into the early law of workmen's compensation. It now enters it expressly and directly because, in most workers' compensation statutes, a worker means any person who enters into or works under "a contract of service". It was argued for the appellant that the deceased was a servant of the respondent, paid at a piece work rate. None of the incidents of his employment was, of itself, it was said, necessarily incompatible with his being a servant. That may be so, but the legal character of the relationship created by the contract depends upon the total effect of its terms, and especially on whether the supposed servant was subject to the commands of the employer, not only as to what he should do but as to how he should do it. Lawful authority to command, so far as the work to be done gives scope for it, is still the important test: see Attorney-General for N.S.W. v Perpetual Trustee Co (Ltd ) ^[F5] , per Kitto J. ^[F6] ; Zuijs v Wirth Brothers Pty Ltd ^[F7] . If there be no right at all in the employer to give directions during the currency of the engagement, the relationship can scarcely be that of master and servant. But, on the other hand, "a reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract": see Queensland Stations Pty Ltd v Federal Commissioner of Taxation ^[F8] , at p. 552 and cases referred to there.

The rationale and practical validity of the distinction between the two forms of engagement under which a man may undertake to do work for another have been questioned in recent times. And the tests or indicia relied upon for determining that a particular contractual relationship is the one thing or the other have produced practical anomalies. Academic writers and judges have suggested that some re-examination of this matter may some day have to be undertaken. Lord Thankerton said so in Short v J. & W. Henderson Ltd ^[F9] , at pp. 33, 34; 62 T.L.R. 427 , at p. 429. In Humberstone v Northern Timber Mills ^[F10] , Dixon J., as he then was, referred to this statement and said: "The regulation of industrial conditions and other laws have in many respects made the classical tests difficult of application and it may be that ultimately they will be re-stated in some modified form" ^[F11] . And in Stevenson Jordan & Harrison Ltd v Macdonald & Evans ^[F12] , at p. 111, Lord Denning (then Denning L.J.) referred to the difficulty of giving a precise definition of the distinction. In the present case the Board seems to have thought that the deceased was a servant because, if he had so acted as to jeopardize the respondent's sawmilling permit, the respondent would have been justified in treating the contract of employment as at an end. But that means no more than that the contract was to do work that the permit authorized, and to do it in accordance with the conditions of the permit. That was its fundamental term. On the facts found, taken as a whole, it is I think beyond doubt that the deceased man was working as a contractor and not as a servant. Timber getters throughout Australia do ordinarily, or at least very often, work as contractors, not as servants, as numerous cases have shown. They were in the past often denied the benefits of workers' compensation. This led to the enactment of special provisions in several of the States extending the benefits of workers' compensation to them. The amendment of the Workers' Compensation Act of Western Australia by the inclusion of the extended definition is one example of this. To it and the second aspect of the argument for the appellant I now turn.

The extended definition brings in certain persons in the timber industry who work under "a contract for service", as distinct from a "contract of service". The expression "contract for service" (singular) is unusual. "Contract for services" is the usual phrase by which to describe a contract for work and labour as distinct from a contract of service. Indeed, "contract for service" may mean an engagement to enter into service, that is to work as a servant: see for example the reference by Littledale J. in Hardy v Ryle ^[F13] , at p. 228, to "actual service or a contract for service". But in Eloff v Lewis & Reid Ltd ^[F14] , at p. 136, a case in which before the introduction of the extended definition a timber cutter was held not entitled to the benefits of the Act, Burnside J. used the expression "contract for service" in contradistinction from "contract of service". It seems likely that it was his use of it in that sense that later brought it into the Act when it was amended to cover timber workers. Whether used in the singular or the more usual "contract for services", the expression in this context seems to have no precise legal meaning except as distinguishing an independent contractor from a servant. But it seems, generally speaking, to connote the position of an independent contractor who undertakes to perform personally, and not by an agent, services for which he is employed. That is to say he is an independent contractor but one who cannot assign or sublet his contract. That I consider is its meaning in the Western Australian Act. I think it was certainly intended by both parties to the contract in this case that Marshall the contractor was to do the work personally, assisted in it by his swamper. And that is what he in fact did. It is the next words that are difficult: "the remuneration of the person so working being in substance a return for manual work bestowed by him upon the work in which he is engaged". This phrase is peculiar to the Western Australian statute.

In other States where timber cutters and other rural workers have been brought within workers' compensation legislation that has been achieved by very different forms of words. The Western Australian phrase seems to have been taken from the judgment of Real J. in the Queensland case of Herbert v Edelston ^[F15] . In that case the Supreme Court of Queensland held that a man employed to ring-bark trees was entitled to the benefit of the Workers' Compensation Act, 1905 (Qld.) which in relevant respects was similar to the English Workmen's Compensation Act, 1897. Two of the judges (Real J. and Chubb J.) apparently thought that in certain circumstances a worker who was not a servant could nevertheless be a worker within the meaning of the Act. Whether their decision was correct is not now material. They reached it partly on the basis of English decisions on the effect of the Employers and Workmen Act, 1875. Real J. expressed his conclusion in a passage from which I extract part of a lengthy sentence: "When ... the remuneration which the person so employed is to receive is understood and intended, both by the employer and employed to be, and is in substance the measure of reward which the employed is to receive for manual labour on his part, or for what, taking the whole work to be performed by the person employed, may in substance be considered as manual labour, then it does not matter whether that remuneration is ascertained by the time to be spent on the work or by the quantity of work to be done, and it does not matter if the person who undertakes the work intended, and was known by the employer when the work was given to intend, to employ others in doing part of that work, or if he did, in fact, so employ others and pay them out of the price received by him for the whole work, so long as the balance which remains to the person taking the work was intended to be, and is in substance, remuneration for the actual manual labour bestowed on the work by him ^[F16] ." This decision was followed by Webb C.J. in Jones v Insurance Commissioner ^[F17] .

In Western Australia it was apparently thought, in 1948, that expressly introducing the words of the judgment of Real J. into the amended definition of "worker" would give the Western Australian Act the effect that his Honour had thought the Queensland Act of 1905 had. But words from a judgment in a Queensland case do not, when transplanted into a Western Australian statute, get their meaning from the context whence they came but from the context into which they are put. They must be interpreted as part of the Western Australian statute in the light of common practices in the timber getting industry. They give the benefit of the Act to workers there who are paid what, in economic effect although not in legal character, amounts to wages for manual work. They look to the nature of the services for which the remuneration is in reality a return. They prevent persons employed to work and working in the ways stated in the definition from being excluded from the Act because they are, in law, independent contractors. They also prevent their being excluded because the remuneration can be expressed to be, not for doing work, but for supplying timber on which work had been done. That was a difficulty that had arisen in some cases elsewhere than in Western Australia when it was sought to apply workers' compensation legislation to timber getters. But, to get the benefit of the extended definition, the remuneration must be in substance for manual labour. The expression "manual labour" is here, I think, used in the sense it has been held to have in decisions concerning its use in various statutes in England, Employers' Liability Acts, Workmen's Compensation Acts, the National Health Insurance Act, the Truck Act, the Factory and Workshop Act. Generally it may be said that "manual labour" excludes services which are primarily by way of skilled direction and supervision, clerical work and other activities in which manual operations are casual, merely incidental, or accessory to the main purpose.

As Lord Sumner said, "the Courts have almost uniformly looked to the real and substantial work to be done, to the main duty of the employee and the general nature of his employment, to that which is primary and substantial in his operations and not to that which is merely incidental and accessory": Jaques v Steam Tug Alexandra ^[F18] , at p. 345. Of the many cases to this effect it is enough to mention Bound v Lawrence ^[F19] ; Re Dairymen's Foremen and Tailors' Cutters ^[F20] ; and Re Gardner ^[F21] , followed in Tansey v Renown Collieries Ltd ^[F22] . If the question in this case were whether Marshall was employed to do manual labour the Board could, in my view, have found that he was. He was employed to work himself, with only one swamper to help him, in felling, trimming and carting timber. The work he contracted to do did not cease to be manual labour because in doing it he used a mechanical power saw and a motor truck with a winch as well as an axe. I do not think that the tools a man uses determine whether or not the work he does or is employed to do, is manual labour. To take some illustrations: a man using a pneumatic drill to break up concrete is engaged in manual labour just as much as is a man attempting the same task with a pick and crowbar. A man cutting logs at a saw bench with a circular saw-"working in connection with milling" as the Act puts it-is, it seems to me, engaged in manual labour just as much as is a man splitting firewood with an axe. The Act in terms indicates that in the timber industry a man working in connection with the hauling or carriage of timber may be engaged in manual labour as well as a man working at felling or sawing. But the question is not, as was suggested, whether the work of the deceased man was, in substance, manual labour. That is not an irrelevant consideration. But it is misleading to regard it as the question that the Board had to determine. It was not, and the Supreme Court did not think that it was.

The actual question is whether the deceased man's remuneration was in substance a return for the manual labour he bestowed upon the work. That is a more difficult question. In the first place, what is meant by "the remuneration of the person so working"? If it were justifiable to interpret this by reference to the passage in the judgment of Real J. quoted above it would mean the money from his contract that remained to the deceased after he had paid his swamper. But I do not think it is legitimate to construe the words of the Act by reference to the somewhat questionable use that was made of them elsewhere. "The remuneration" of the deceased must, for the purposes of the definition, be taken, I think, to mean what he was to have as the consideration for his performance of his contract, that is to say PD3 per load of logs delivered. What then is the effect of the requirement that the remuneration must be "in substance a return for the manual labour bestowed by him upon the work"? It is, I think, intended to differentiate the working contractor, whom the Act assimilates to the position of an employee paid by wages, from the contractor who is himself an undertaker, an employer, and for the purposes of the Act to be considered as such rather than as a working employee. The distinction is a real one, but it depends upon economic rather than ordinary legal criteria.

The phrase "in substance" is frequently used in legal writing, although it does not very often appear in statutes. Its common use is in connection with definition and classification, or "characterization", as it is now often called. There the question is, looking to substance and not to form, what for the purpose in hand is a thing's essential quality? The expression "in substance", and the word "substantially" in that sense, are related to the distinction that the old logicians described as that between propria and accidentia. That it seems to me is the sense in which the expression is used in the Act. It follows that the inquiry that the Act demands is not that which the Board made. The Board found that, "because a substantial part of the remuneration paid to the deceased was for manual labour bestowed by him on the work in which he was engaged", he was a worker within the definition. This, however, involved treating the phrase "in substance" as if it were equivalent to "to a substantial extent". But we are concerned with "in substance" as determining the essential character of the remuneration-not with whether it was substantial, either in the sense of "large" or in the sense of "not unsubstantial": cf. Palser v Grinling ^[F23] , at pp. 316, 317; Atkinson v Bettison ^[F24] .

When a skilled person of any sort, a professional man, tradesman or experienced bush worker, is employed as an independent contractor to do work in the way of his profession or trade, his remuneration can, I think, properly be said to be paid to him for his personal work. That is not, I think, altered because he employs some subordinate to assist him or because he provides the equipment with which he works. To take some illustrations: a solicitor employs clerks. A dentist may have an assistant and expensive equipment. Each has to provide premises, an office or surgery. A farrier has his smithy, his forge and anvil; he may employ an assistant; he provides the iron from which he fashions horse shoes; yet his remuneration could fairly be said to be in substance paid to him for manual labour bestowed by him on the work on which he is engaged. The same thing may be said of many jobbing contractors who bring their own tools and equipment and are very often accompanied by an assistant, a mate, whom they employ. In all such cases the contractor, if he had to sue for his fee or the price of his work, would, using the terminology of the common law, do so in an action for money payable for work and labour done. And therefore, if the work and labour were manual labour, the claim could properly be said to be for remuneration for his manual labour. But the inquiry that the Act requires is not quite that.

It is rather: what is it that the man does for which his remuneration is a return? Does he earn his remuneration in substance by manual work? The answer that the Supreme Court gave was that his remuneration was a return for all that he provided, his equipment, the work of the swamper, his own labour. From the point of view of economic theory and accounting that unquestionably is so. Then, by dissecting the total sum received by the deceased under his contract, it can be shown that after deducting the swamper's wages and the cost of maintaining the equipment less than half that total sum remains as the net income of the deceased; and that amount it is then said is the most that can be considered as his return for manual labour bestowed by him upon the work. I see the force of this. But in my opinion the proportion the net income of the working contractor bears to the total amount of his contractual remuneration is not the proper determinant of whether or not that remuneration was in substance a return for his own work. So to regard it too readily leads to "in substance" being read as if it meant "in the main" or "for the most part"; and that would be an error similar to that which I think the Board made. The question appears to me to be whether in substance the contractor earned his pay for his work as a tree feller and carrier of timber. The amount he was paid for his services reflected, no doubt, the cost to him of equipping himself with the necessary plant and assistance and getting them and himself to the job. But, as I see it, what he was to do was to fell and cart timber, manual labour. The Board could I think consider that his remuneration was, in substance, for doing just that, not for providing a truck and power saw, but for using them. And, as Hale J. said, "if the evidence would permit such a finding it would be for the Board and not for the Court to say whether or not the finding should be made".

In some cases there may be difficulties in calculating compensation in the case of contractors coming within the extended definition. But they do not arise here for the man was killed. In any event such difficulties cannot, in my opinion, curtail the scope of the definition.

In the result I consider that the Board approached the question in the wrong way because it misinterpreted the Act. But the facts that the Board found do not in my view compel a conclusion as a matter of law that the deceased man was not a worker within the extended definition. As the Supreme Court took the view that the facts constrained the Board so to find I would allow the appeal and remit the matter to the Board.