Hill v WorkCover Queensland[2005] QSC 257

SUPREME COURT OF QUEENSLAND

[1] MOYNIHAN J: The applicant seeks a declaration that he is a “worker” within the meaning of that term as used in the WorkCover Queensland Act 1996 (“the Act”).

[2] The applicant is a jockey who was injured in a riding accident on 11 September 2002 and seeks to pursue a claim for common law damages.  To do so he has to be a worker in terms of the Act and the respondent contends that he is not.

[3] The point is a narrow one.  The primary facts are not contentious and the application turns on whether the applicant comes within an exclusion to which it will be necessary to refer.

[4] Schedule 2 of the Act defines who is and who is not a worker for the purpose of being covered under the Act.  Part 1 of the Schedule deals with who is a worker and Part 2 with who are not.  A person who is a worker has entitlements under the Act, a person who is not may enter into a separate contract of insurance pursuant to s 28.

[5] An agreement between WorkCover Queensland and the Queensland Thoroughbred Racing Board pursuant to s 28 deals with jockeys and the respondent contends that the applicant is not a worker in terms of the Act and is compensable only in terms of that agreement.  The applicant therefore brings this application.

[6] The applicant deposes that horse trainers would ask him to do track work with one or more horses and for his opinion about the horse’s performance, its capabilities or potential as a racehorse and how best to train it.

[7] In exchange the trainer would agree to give the jockey the option of riding the horse or horses ridden pursuant to that arrangement if it was running at forthcoming race meetings.  If a jockey exercised the option he would get a race fee for the ride together with any additional gratuity or payment if the horse won.

[8] A trainer named Devine approached the applicant on 9 September 2002 to work a horse on the basis of an arrangement such as that referred to earlier.  On 10 September 2002 the applicant did so and reported that the horse “worked nice”.

[9] Devine then asked the applicant whether he wanted to ride the horse if it was nominated for a race and whether he would work the horse again the next morning.  The applicant agreed to work the horse the next morning and said that he would see what happened so far as riding it in a race was concerned.

[10] In the course of the track work on the morning of 11 September 2002 the plaintiff was injured and seeks to bring his action for common law damages as a consequence.

[11] Schedule 2 Part 2 Clause 2(b) of the Act provides that a person :-

“… who performs work under a contract of service as a professional sportsperson while –

…

(b) training or preparing for participation in a sporting

or athletic activity as a contestant

is not a worker.”

[12] Although the respondent had earlier put forward a number of bases for the applicant not being a worker it was agreed by the application came before me that it turned on whether the applicant came within the provision of clause 2(b) set out above.

[13] The applicant was not participating in a sporting or athletic activity as a contestant at the time at which he was injured.

[14] The issue is whether the applicant was “training or preparing for participation in a sporting or athletic activity as a contestant” when he was injured.

[15] It may be that a particular horse including the one the applicant was riding when injured might in fact never participate in a race.  The rider might for example inform the trainer that the horse was totally unsuitable for that although there is no suggestion that was so in this case.

[16] Nevertheless the view seems to me to be open that in working horses for a trainer as the applicant was doing he was training or preparing to participate in races as a contestant on that or another horse. 

[17] It is also submitted for the respondent that jockeys in the position of the applicant did not get paid for their assessment but got an opportunity, if they chose to exercise it, to ride the horse in a race for which it was entered.  In that sense too the applicant was preparing to participate in a race.  The arrangement gave him an opportunity to participate he would not otherwise have received.  That seems to me to have merit.

[18] Given those considerations the applicant is caught by the exception provided for by clause 2(b) and is not a worker.

[19] Although it is perhaps unnecessary to determine the question given that the applicant is caught by that exclusion I am of the view the applicant was not employed under a contract of service. 

[20] The applicant was engaged by a number of trainers to work their horses or to ride in races.  He is better viewed as a contractor as distinct from being engaged under a contract of service.

[21]  The point of the issue is that if the applicant was engaged a contract of service he was subject to the PAYEE provisions of the Income Tax legislation and the 1999 amendment of the WorkCover Act was designed to cover such workers.[1]

[22] The applicant’s employment was closer to involving the use of his own skill and judgment to achieve the desired result independently of the trainer and this is indicative of a contract “for services” rather than “of service”; Simmons v Heath Laundry Co.[2]  It is true and the applicant submits that in Zuijas v Worth Bros Pty Ltd[3] inability to control did not necessarily lead to a conclusion that work was not performed under a contract of service.  In that case there was one contract and one employer.  Here there are multiple contracts with multiple parties.

[23] Wood v Insurance Commissioner[4] and Jones v Insurance Commissioner[5] were also cited by the applicant.  In the former case a field worker breaking a horse at piece work rates was held to be a worker.  The issue in that case was whether he “regularly” carried on the business of contract droving.  In the latter case it was held that the magistrate had erred in finding the claimant was not a worker because the magistrate wrongfully considered the relationship of master and servant had to be made out to satisfy a statutory definition of worker and the employer had control over the worker.  Those cases are of no assistance here.

[24] The application is dismissed.