The Victorian Court of Appeal has overturned a ruling awarding almost $900,000 to an electrician who was seriously injured by a fall into a lift well, saying its examination of the relationship left little doubt he was an independent contractor.
The bench – Justices Philip Mandie, Robert Redlich and Barry Beach – quashed Justice Ross Robson’s ruling that the electrical contractor was an employee of Elazac Pty Ltd, which was negligent, causing his injuries.
Justice Ross found there was also contributory negligence by the electrician and awarded him $897,620.80 in damages
The electrician was a self-employed contractor, from 1984 to the time of the accident in June 2002.
In 1996, the electrician starting performing work for the owner of Elazac, pollster Gary Morgan, at his home and business premises.
By the time Elazac took control of a building at 401 Collins Street, Melbourne, in 2000, the electrician was spending about 60% of this time working for Morgans interests and accepted the role of project manager of the building's refurbishment. This role eventually included servicing the lifts.
The electrician supervised workers refurbishing the building, who were employed either by him or Elezac. While he directed these workers, and could decide whether to bring in outside contractors, he could not delegate his project manager responsibilities.
Morgan gave the electrician day-to -day directions on the work to be performed.
On the day of the accident, the electrician had a plaster case replaced with a plastic splint on a wrist he had fractured six weeks earlier.
Soon after 4pm, Morgan told the electrician in a "loud, forceful and abrupt" manner to fix one of 401's lifts.
Justice Robson found that while fixing the lift, the electrician was descending a ladder placed in the lift well when he lost his grip with his injured hand and fell, badly damaging his right foot and hand, cutting his forehead, bruising his left foot and hurting his back.
The full bench said notwithstanding Morgan's control over the work the electrician did, he did not control how any particular task was performed.
It said the "most significant feature" of the case was the electrician's employment of his own workers at Morgan's sites.
"Looking at the totality of the relationship. . . we have little doubt the [electrician] was a contractor and not an employee of [Elazac].
"Not only did the [electrician] consider himself to be self-employed, everything he did in the course of his work suggested that this was so: he employed employees; his tax returns and financial documentation disclosed he was operating a business in partnership with his wife; he could determine who he employed and where they worked; he performed additional work (in working hours) for an organisation unrelated to [Elazac] (and sent his employees to work there from time to time); and finally, [Elazac] did not deduct taxation from the [electrician's] pay and did not pay him holiday pay, sick leave, long service leave or superannuation."
Given the electrician's discretion as to how work was performed and who was to do it, there was no negligence and no breach of duty, by Elazac, the full bench said.