Supreme Court New South Wales

• Medium Neutral Citation: Keeble v Murray [2014] NSWSC 151
• Hearing dates: 14 November 2013
• Decision date: 03 March 2014
• Jurisdiction: Common Law
• Before: Harrison AsJ

Decision

The Court orders that:

(1) Leave is granted to the plaintiff to join ACE Insurance Ltd as the sixth defendant to these proceedings.

(2) Leave is granted to the plaintiff to file an amended statement of claim within 14 days.

(3) Costs are reserved.

• Catchwords: PRACTICE AND PROCEDURE - application to join insurance company as a defendant to the proceedings in a personal injuries claim - multiple defendants - whether there is an arguable case against the insured and an arguable case that the insurance policy responds; CONTRACTS - insurance company seeks to rely upon an exclusion clause relating to workers compensation - whether there is an arguable case that the plaintiff was not employed by the defendants - whether employee is suing employer at common law - whether exclusion clause will be applicable; INTERPRETATION - interpretation of exclusion clause - exclusion clause capable of more than one interpretation - exclusion clause to be construed contra proferentem
• Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 6; Workers' Compensation Act 1926 (NSW), s 6; Workers Compensation Act 1987 (NSW), s 150, Sch 1, cl 1; Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 4, 250, 262, Sch 1, cl 9
• Cases Cited: AFG Insurances Ltd v Andjelkovic (1981) 54 FLR 398; Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250; Ebb v Fast Fix Steel Fixing Pty Ltd [2007] NSWCA 236; Eastern Creek Holdings Pty Limited v Axis Specialty Europe Limited [2010] NSWSC 840; Energize Fitness Pty Ltd v Vero Insurance Limited [2012] NSWCA 213; Laugher v Pointer (1826) 5 B & C 547; 108 ER 204; OP Industries Pty Ltd v MMI Workers Compensation (NSW) Ltd (1998) 17 NSWCCR 193; Racing NSW v NSW Self Insurance Corporation (a continuance of the NSW Insurance Ministerial Corporation), trading as Treasury Managed Fund No. 1 [2008] NSWSC 6; Sydney Turf Club v Crowley (1972) 126 CLR 420; Transfield Services (Australia) v Hall; Hall v QBE Insurance (Australia) [2008] NSWCA 294
• Category: Interlocutory applications
• Parties: Kylie Leanne Keeble (Plaintiff); Paul Murray (First Defendant); Murray Family Investments Pty Ltd t/as EB & DE Murray Family Trust (Second Defendant); Chris Behan (Third Defendant); Racing NSW (Fourth Defendant); ACE Insurance Ltd (Sixth Defendant)
• Representation: Counsel: B Phillips (Plaintiff); M Howling (Solicitor - First & Second Defendants); M Zakaria (Solicitor - Fourth Defendant); D Weinberger (Sixth Defendant); Solicitors: Slater & Gordon (Plaintiff); Gibson Howlin Lawyers (First and Second Defendants); Moray & Agnew (Fourth Defendant); DLA Piper Australia (Sixth Defendant)
• File Number(s): 2009/327349

Judgment

1 HER HONOUR: The issue to be determined is whether the insurer should be joined as a defendant.

2 The plaintiff's evidence in relation to the accident is set out in her evidentiary statement dated 20 June 2012. For the purpose of this application, I have taken her evidence at its highest. I accept that this evidence will be subject to challenge at trial.

3 On 1 July 2006, the plaintiff, Kylie Keeble, became an indentured apprentice jockey with Edward (Bede) Murray. As an apprentice jockey her work involved her arriving at the stables by 3.30 am, preparing the horses and riding them track work. The plaintiff says that it was very physically demanding work, but she enjoyed it. As her skill level increased she began to ride in jump outs and barrier trials. On 21 July 2006, she had her first race ride at Goulburn. From the time she commenced as an apprentice until the date of her accident, she had completed 55 race rides and was successful in riding two winners.

The accident

4 On 30 December 2006, the plaintiff says that she was riding for Paul Murray who is the son of Bede Murray. When racing on a race day she was paid a fee of $156 by Racing NSW for each ride.

5 At the time of her accident, she was riding a horse called "Walking Street". It was this horse's first race. Prior to the accident she had ridden this horse at track work and in the barrier trial. During the track and barrier work she did not have any difficulties with the horse. As she was being led into the mounting enclosure by Chris Behan, the strapper, he was having difficulty controlling the horse.

6 The plaintiff says that Chris was inexperienced. Walking Street became a little fractious, was playing with her head and was very soft mouthed. Chris Behan pulled on the lead reign sharply, causing the horse to rear up. Chris kept pulling on the reign and as the horse went up, he was still pulling on the reign and dragging on the horse's head. The plaintiff says that she was screaming at Chris to let the horse go. Then Walking Street went right up and over backwards before falling on the plaintiff's thigh. The plaintiff's right leg became trapped underneath the horse. As she was laying on the ground, with the horse on her, Chris Behan was still pulling on the horse's lead, which meant the horse could not get her legs. Eventually, the horse was able to get up and off the plaintiff. As a result of the accident the plaintiff says that she has suffered serious personal injuries.

The pleadings

7 On 24 December 2009, by statement of claim, the plaintiff commenced proceedings in relation to personal injuries sustained on 30 December 2006. On 2 October 2013, during the hearing the plaintiff tendered a proposed amended statement of claim (Ex A) (PASC). I will set out the pleadings in the PASC.

8 The first defendant is Paul Murray. The second defendant is Murray Family Investments Pty Ltd t/as EB & DE Murray Family Trust. The third defendant is Chris Behan. The fourth defendant is Racing NSW. Although not named as a party, the PASC contains pleadings against the insurer, ACE Insurance Ltd (ACE). ACE objects to the amendments so far as they relate to it.

9 The allegations of each defendant's liability to the plaintiff are set out in the PASC and can be summarised as follows.

(a)  Paul Murray - the first defendant

10 The plaintiff alleges that Paul Murray was a licensed race horse trainer and operated a racing stable at Kembla Grange. He was a person skilled and experienced in respect of the propensity of thoroughbred racehorses and their effective control (PASC [2] and [3]). Paul Murray arranged for the plaintiff to ride a horse known as Walking Street in the race meeting (PASC [13]). The plaintiff says that she was assisted in mounting the horse by Paul Murray while that horse was being held/lead by Chris Behan (PASC [21]) and when the horse became fractious and continued to be so, he took no adequate steps to calm or control the horse (PASC [22]).

11 On 22 July 2013 Paul Murray filed his defence. At (D [14]) he admitted providing assistance to the plaintiff in accordance with accepted industry standards to mount the thoroughbred Walking Street in the mounting enclosure at the race meeting.

12 Paul Murray provided a statement and gave short evidence, which is at odds with his pleading. The statement does not address the circumstances of the accident. He gave evidence that he did not see the accident. According to him, the plaintiff's accident occurred in the afternoon when he was probably heading back into the members' bar, where everyone watches the races, at the members' enclosure (T 35-36).

13 Paul Murray explained about the roles of various entities on race days. He says that as at 31 December 2006, he was the registered trainer of Walking Street. He explained that when a racehorse is to run in a race, the trainer of that horse generally chooses the jockey that he or she wants to ride the horse. There is no written contract between the trainer and the jockey. The jockey is not paid by the trainer; Racing NSW pays the jockey. Prize money is distributed to owners, jockeys and trainers by Racing NSW. Chris Behan was a strapper registered by Racing NSW.

14 The plaintiff alleges that when she mounted the horse it became more fractious and continued to be so and Paul Murray took no adequate steps to calm or control the horse (PASC [22]).

15 Paul Murray denies this allegation. He pleads that he did any act or thing which caused or contributed to the horse Walking Street rearing or falling (D [15]).

16 Paul Murray also denied that he had a duty to implement, maintain and/or supervise a safe system of work for the plaintiff or that he had any duty to exercise reasonable care and skill for the plaintiff (D [12]). Alternatively, Paul Murray denies that he breached any duty of care.

17 Paul Murray also gave evidence regarding his employment and agreed that Murray Family Investments or the Murray Family Trust provided him with group certificates in 2007 and 2008 (T 36.38-40).

18 Importantly, there is a factual dispute as to whether or not Paul Murray was present when the plaintiff was mounting Walking Street. This dispute can only be resolved at trial.

(b)  Murray Family Investments - the second defendant

19 Bede Murray is a director of Murray Family Investments Pty Ltd, who is the Trustee of EB & DE Murray Family Trust. Bede Murray is a licensed trainer of thoroughbred racehorses. However, he is not a defendant in his own right in these proceedings.

20 The plaintiff pleads that Murray Family Investments employed Chris Behan (PASC [5]). She also pleads that Chris Behan was the strapper/race day attendant for the thoroughbred racehorse Walking Street at the Kembla Grange Race Meeting (PASC [15]). Paul Murray says that on the race day, the strapper, Mr Behan was a strapper registered by Racing NSW.

21 It is also pleaded that Paul Murray, Murray Family Investments, Chris Behan and/or Racing NSW owed a duty to exercise reasonable care and skill to avoid the risk of injury to the plaintiff (PASC [19]). Murray Family Investments admitted that it had a duty to implement a safe system of work for its employees and denied any breach of duty alleged against it (D [11]).

22 It should be noted that these defences were filed in answer to the plaintiff's earlier statement of claim where she had alleged an employment relationship with the defendants.

23 On the topic of employment Paul Murray gave the following evidence (T 37.20-26; 38.26-36; 38.45-46):

"Q. And Kylie Keeble was also to your knowledge, employed by the Murray Family Investments?

A. Yes.

Q. And on the day of the accident, Kylie Keeble was paid by Racing New South Wales to race on that particular day, correct?

A. Yes.

...

Q. Why do you say that she, Kylie Keeble was employed by the Murray Family Trust?

A: She works under us.

Q. But do you know if Murray Family Trust paid her?

A. No.

Q. You don't know or they don't?

A. I don't know if they do. I don't know, But that Racing New South Wales - when they race, they get paid by Racing New South Wales.

...

Q. When she is working with you?

A. Yes."

24 Murray Family Investments, in its defence, says that to avoid doubt, on 30 December 2006 Sch 1(a) cl 9(1)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) deemed the plaintiff to be employed for the purposes of the Act by either of the Illawarra Turf Club Ltd, formerly named as fifth defendant, or Racing NSW, the fourth defendant (D [5]).

(c) Chris Behan - the third defendant

25 The plaintiff pleads that Chris Behan was employed by Murray Family Investments (PASC at [5]). On 30 December 2006, he was the strapper/race day attendant for the thoroughbred racehorse Walking Street at the Kembla Grange race meeting (PASC at [15]). In Murray Family Investment's defence it admitted that it employed Chris Behan as a stable hand (D [3]). Mr Murray also gave evidence to this effect (T 37.9).

26 Mr Behan has not entered an appearance nor filed a defence.

(d) Racing NSW - the fourth defendant

27 The plaintiff alleges that Racing NSW had registered Chris Behan as a strapper/race day attendant to carry out such duties at race courses in New South Wales under the control of Racing NSW and in particular the Kembla Grange race meeting on 30 December 2006 (PASC [16]). Racing NSW has filed a defence in which it denied that it was the plaintiff's employer but asserted that the employer was either Paul Murray or Murray Family Investments (D [22]).

Liability

28 Against all defendants, the plaintiff alleges that on the day of the accident Paul Murray, Murray Family Investments, Chris Behan and/or Racing NSW owed the plaintiff a duty to exercise reasonable care and skill to avoid the risk of injury to her (PASC [19]).

29 It is important to appreciate that the plaintiff does not assert either in her PASC that at the time of the accident she was employed by any of the defendants nor that she was injured in the course of her employment. [emphasis added] .She does not dispute that she entered into a Deed of Apprenticeship with Bede Murray. (I shall refer to this document in more detail later in this judgment). While the plaintiff was paid wages by Murray Family Investments, she contended that this was an administrative arrangement put into place by Bede Murray. On the issue of employment on the day of the accident, there is no written contract between the trainer and jockey. As to who was the actual employer of the strapper Chris Behan on race day is also unclear.

30 ACE submitted that this pleading in the PASC is inconsistent with admissions made by the plaintiff's solicitor, Melinda Griffiths in her affidavit sworn 7 May 2013, where at [5] she deposes that Murray Family Investments employed the plaintiff. This statement was made by the plaintiff's solicitor, not the plaintiff herself. This statement was made before the plaintiff's claim had been amended. While the plaintiff was indentured to Bede Murray, the circumstances surrounding whether or not the plaintiff was employed and, if so, by whom on the actual race day are complicated to say the least. In these circumstances, I do not take this statement as an admission that the plaintiff was employed by Murray Family Investments.

The notice of motion to join the insurer

31 By notice of motion filed 10 May 2013, the plaintiff seeks an order that leave be granted to join ACE as a defendant to these proceedings. ACE opposes this application.

32 The test to be applied in the exercise of the Court's discretion on an application pursuant to s 6(4) of Law Reform (Miscellaneous Provisions) Act 1946 (NSW) is well established: see Eastern Creek Holdings Pty Limited v Axis Specialty Europe Limited [2010] NSWSC 840 and Energize Fitness Pty Ltd v Vero Insurance Limited [2012] NSWCA 213.

33 In order for the plaintiff's application to succeed, she must show three things. First, is there an arguable case against the insured; second, is there an arguable case that the policy issued by ACE responds; and third, is there a real possibility that if judgment were obtained, the insured would not be able to meet it. The third issue is not pressed by the insurer. Hence, it is only necessary to address the first and second issues.

Arguable case?

34 In relation to what constitutes an arguable case, in Energize Fitness, Campbell JA (with whom Allsop P and Meagher JA agreed) adopted what was said in AFG Insurances Ltd v Andjelkovic (1981) 54 FLR 398 by saying:

"[48] In AFG Insurances Ltd v Andjelkovic (1981) 54 FLR 398, the Full Federal Court (Franki, McGregor and Kelly JJ) said, at 400, that the ACT analogue of s 6(4):

'... commands the court not to grant leave in certain circumstances. It is not easy to decide precisely what is embraced in the words which describe the circumstances where the court is not to grant leave. In our opinion the court has a general power to grant leave in all cases which do not fall within the provision that it shall not grant leave and in which it is made to appear by evidence available in the application that there is an arguable case of liability against the insured, being a liability against which the insured is indemnified by a contract of insurance in force at the time of the happening of the event said to give rise to the claim. We accept the relevant test proposed by the respondent which is really the test formulated by the primary judge, namely, has the respondent presented a case which is at least arguable?'"

35 And at [58] the Court said that the above passage "recognises that it can be necessary for the arguable case of liability to 'appear by evidence available in the application'."

36 I will now consider whether the plaintiff, on the current evidence, has demonstrated an arguable case on both liability and indemnity. Essentially, the same central point is made by ACE in relation to both issues. It is whether the plaintiff is seeking to sue her employer at common law and her co-employees for whom her employer is vicariously liable. If that is so, then ACE asserts that the exclusion clause in the insurance policy is applicable to preclude her claim. For convenience, from now on where I refer to the defendants, I am referring to the first to third defendant and excluding Racing NSW.

37 In a similar vein, ACE said that the plaintiff is prohibited from suing her employer absent compliance with the procedural requirements contained in the Workplace Injury Management and Workers Compensation Act but then even if the plaintiff were to comply with the Act, she would only be entitled to seek economic loss from her employer and she seeks common law damages to which she is not entitled. I accept that if one or more of the defendants (excluding Racing NSW) is the plaintiff's employer and her claim falls within the Workplace Injury Management and Workers Compensation Act, the plaintiff is required to comply with the procedural requirements of the Workplace Injury Management and Workers Compensation Act; and that she is not entitled seek common law damages.

38 However, the plaintiff submitted that she was not employed by Murray Family Investments at the time of the accident for the following reasons [emphasis added]:

(a) Strictly speaking, payments of wages were not made by the Murray Family Investment Pty Ltd t/as EB & DE Murray Family Trust as ACE asserted, but from the EB & DE Murray Family Trust and is only evidence of an administrative arrangement regarding the means by which the plaintiff was paid. It is not evidence that the second defendant was the employer of the plaintiff.

(b) In circumstances where the Deed of Apprenticeship made clear that the plaintiff was in the service of Bede Murray, the plaintiff's obligations to that master would be incompatible with those owed to some other person who was considered to be the employer. In other words, the plaintiff could not be the servant of two different people when carrying out any particular task. I shall return to this issue shortly.

(c) The fact that one clause of the Deed of Apprenticeship referred to an "employer" suggests only that the relationship between the master (ie Bede Murray) and the plaintiff was that of employer/employee, not that there was some other person who was the employer of the plaintiff; and interpreting clause 4 of the deed as applying not to the master but to some third party who was the employer would render the clause of no effect given that any such employer was not a party to the deed. Clause 5 setting out the benefits to which the apprentice was entitled would similarly have no effect in those circumstances.

39 In response, ACE submitted that clause 4 of the Deed of Apprenticeship draws a distinction between Bede Murray (the master) on the one hand, and the plaintiff's employer on the other hand and that this distinction is consistent with what appears to have in fact occurred, namely that Murray Family Investments employed the plaintiff.

Deed of Apprenticeship (deed)

40 While it is common ground that the plaintiff entered into a Deed of Apprenticeship with Bede Murray, the parties are in dispute as to the proper construction of that document. The deed itself refers to a number of relationships such as master and servant, employer and employee and "employee and apprentice".

41 On 1 July 2006, the plaintiff entered into a deed with Bede Murray. She remained apprenticed to Bede Murray as at 30 December 2006, the date of the accident. The deed was signed by both the plaintiff and Bede Murray. Bede Murray is not a defendant in these proceedings. I shall briefly refer to the relevant clauses of the deed.

42 Clause 1 provides that the apprentice binds herself to Bede Murray (her designated master) to learn the occupation of a groom, jockey and trainer.

43 Clause 3 contemplates that the plaintiff may "ride outside work" for a trainer other than the master and/or in races "when the Master considers that the Apprentice has the necessary experience, strength and ability and the Apprentice is not fully engaged in riding work for him/her".

44 Clause 4 provides that in consideration of the service of the apprentice the employer will pay the apprentice during the said term not less than the minimum wage prescribed from time to time by the board.

45 Clause 5 deploys the language of "employee" as distinct from "apprentice" and provides for the employee's holiday leave and superannuation entitlements.

46 Clause 6 then reverts back to the language of "master" and "apprentice".

47 In my view, it is arguable that Murray Family Investments was the administrative vehicle whereby the plaintiff was paid wages, holiday leave and superannuation entitlements. Clauses 4 and 5 do not establish that the plaintiff was employed by Murray Family Investment Pty Ltd t/as EB & DE Murray Family Trust.

48 Next I shall consider the relevant legislation so far as the issue of employment is concerned, relevant case law and finally, the exclusion clause in the insurance policy.

The legislation

49 Section 150 of the Workers Compensation Act 1987 (NSW) reads:

"150 Reference to worker's employer includes fellow workers etc

A reference in this Part to a worker's employer includes a reference to:

(a) a person who is vicariously liable for the acts of the employer, and

(b) a person for whose acts the employer is vicariously liable."

50 Section 262 of the Workplace Injury Management and Workers Compensation Act provides that "Court proceedings for the recovery of work injury damages cannot be commenced until a claim for the damages has been made." "Work injury damages" is defined in s 250 as "damages recoverable ... in respect of ... an injury to the worker" and "injury" is defined in s 4 as "personal injury arising out of or in the course of employment".

51 Section 6(10) of the Workers Compensation Act 1926 (NSW) (now repealed) relevantly read:

"(10) A person engaged to ride or drive for fee or reward in any horse or pony race run under the management of any racing club or association or engaged, whether for fee or reward or gratuitiously, in riding work on the racecourse or other premises of any such body, shall for the purposes of this Act be deemed to be a worker employed by such club or association.

..."

52 Section 6(10) of the Workers Compensation Act replacement is similar to that set out in cl 9 of Sch 1 of the Workplace Injury Management and Workers Compensation Act. It relevantly reads:

"9 Jockeys and harness racing drivers

(cf former Sch 1 cl 9)

(1) A person who:

(a) is engaged to ride a horse for fee or reward at a meeting for horse racing conducted or held by a racing club or association, or

(b) drives a horse at a meeting for harness racing conducted or held by a racing club or association and at which betting is allowed, or

(c) is engaged in riding work in connection with horse racing (but not harness facing) on the racecourse or other premises of racing club or association,

is, for the purposes of this Act, taken to be a worker employed by the racing club or association." [Emphasis added.]

53 I have reproduced both the old and current sections. The old legislative provision is referred to in Sydney Turf Club v Crowley (1972) 126 CLR 420 and Ebb v Fast Fix Steel Fixing Pty Ltd [2007] NSWCA 236; while the current provision is referred to in Racing NSW v NSW Self Insurance Corporation (a continuance of the NSW Insurance Ministerial Corporation), trading as Treasury Managed Fund No. 1 [2008] NSWSC 6.

54 The plaintiff was paid a fee of $156 by Racing NSW for riding for Paul Murray. The plaintiff argued that at the time of the accident she was the deemed employee of the Illawarra Turf Club for the purposes of her injury pursuant to cl 9 of Sch 1 of the Workplace Injury Management and Workers Compensation Act. She also says that she was not working for Bede Murray or Murray Family Investments, but riding for Paul Murray and/or Racing NSW outside her usual work.

55 ACE submitted that Murray Family Investments is vicariously liable for the acts of its employees, namely Paul Murray and Chris Behan and accordingly, the plaintiff should not be permitted to circumvent the operation of the Workplace Injury Management and Workers Compensation Act by suing her co-employees.

56 So far as Chris Behan, the strapper, is concerned the plaintiff pleads that he was negligent in that he failed to control Walking Street when she was in the process of mounting the horse, his actions were negligent and they caused her to fall and suffer personal injuries. In my view, as cl 9(1)(c) of Sch 1 of the Workplace Injury Management and Workers Compensation Act refers to a person engaged in riding work in connection with horse racing on the racecourse, it is arguable that Chris Behan also falls within the definition of a deemed employee of Illawarra Turf Club or Racing NSW.

57 So far as whether a person, such as the plaintiff, can have two masters when acting in a particular capacity was recently considered by the Court of Appeal in Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250 at [23], where Leeming JA (with whom Emmett and Meagher JJA agreed), cited with approval Laugher v Pointer (1826) 5 B & C 547 at 558; 108 ER 204 at 208:

"He is the servant of one or the other, but not the servant of one and the other; the law does not recognise a several liability in two principals who are unconnected."

58 And at [24]:

"In Esso Petroleum v Hall Russell [1989] 1 AC 643 at 686, Lord Jauncey of Tullichettle said unambiguously that:

'[T]here is no principle which permits a servant to be in the de jure employment of two separate masters at one and the same time'."

59 The plaintiff had one master and that was Bede Murray. While ACE accepted that the plaintiff cannot have two masters at the one time, it contended that there are two relationships set out between Bede Murray and the plaintiff in the deed. The first one is of master and servant, the second is one of employer and employee. While that may be so, it does not mean that on the day of the accident either one or both of these relationships were extant. Even if they were, Bede Murray is not a defendant in these proceedings.

60 The plaintiff responds to ACE's submissions by saying that the plaintiff was not an employee, or deemed employee, of any of the defendants at any time; and even if she was considered the employee or deemed employee of one of the defendants at some of the material time, her injury was not suffered within the course of employment by that defendant. Further, if she was considered to have been riding for Paul Murray in the course of her employment with Bede Murray or Murray Family Investments, that would give rise to conflicting duties owed by the plaintiff to Paul Murray and to her employer/master. According to the plaintiff, such a conflict would arise where the plaintiff was racing against a horse trained by her master/employer. That submission does not address who was the plaintiff's actual employer at the time of the accident.

61 Counsel for ACE contended that the plaintiff's actual employer was Murray Family Investments and the fact that there may also be a deemed employer does not change the character of the relationship between the actual employer (Murray Family Investments) and the plaintiff. In support of this proposition it relied upon Ebb and Racing NSW.

62 In Ebb, the Court of Appeal considered the issue of whether a person deemed to be a "worker" for the purposes of workers compensation legislation, was subject to constraints on recovery for common law damages imposed by that legislation. The primary judge in Ebb applied the decision of OP Industries Pty Ltd v MMI Workers Compensation (NSW) Ltd (1998) 17 NSWCCR 193 and held that the damages were constrained. Ebb argued that OP Industries did not govern the present proceedings or that in alternative, if it did, OP Industries should not be followed.

63 The Court in Ebb, (Basten JA with whom Santow JA and Hislop J agreed), after considering OP Industries, held that to the extent that the majority in OP Industries suggest that deemed employment provisions affect general law principles affecting the relationships between those causing and suffering injury in the course of work, that approach is not consistent with the statutory deeming applying only "for the purposes of the Act".

64 In OP Industries, the injured worker undertook an apprenticeship with Central West. Central West then arranged for the worker to undertake an apprenticeship with OP Industries. The worker sued Central West and OP Industries. The majority in the Court of Appeal in OP Industries agreed with the trial judge that the deeming provisions as contained in Sch 1, cl 1 of the Workers Compensation Act 1987, meant that Central West was the employer and not OP Industries.

65 Basten JA at [43] in Ebb referred to the dissent of Meagher JA in OP Industries where Meagher JA said:

"...[T]he deeming provision was not determinative, and that it was 'intended to assist an injured worker to know which of several potential 'employers' is liable to pay him compensation under the Act'..."

66 The Court in Ebb indicated its support for Meagher JA's view that the deeming provision was not determinative of which company was the employer for the purposes of general law damages as that was not the legislative intention. Basten JA explained:

"[43] ...The reasoning of the majority [in OP Industries] appears to have turned on two propositions, the first of which was that Central West had 'temporarily lent or let on hire' Mr Ward's services to OP Industries, which would not terminate his employment with Central West: 17 NSWCCR 193 at [23]. The second limb was a rejection of the argument that the deemed employment in Schedule 1, clause 1, being 'for the purposes of this Act', related only to statutory compensation. Meagher JA, in dissent, accepted the appellant's argument that the deeming provision was not determinative, and that it was 'intended to assist an injured worker to know which of several potential 'employers' is liable to pay him compensation under the Act': at [9]. That conclusion led his Honour to consider which company was the worker's employer, in accordance with general law principles.

[44] ... OP Industries sought to argue that it was the worker's employer, contrary to the deeming provision, so as to obtain the benefit of the statutory constraints on common law damages. In the present case, the worker seeks to argue that the deemed employer is not the employer for the purposes of the statutory controls over damages. It is arguable that the majority approach was wrong in OP Industries, not because it held that deemed employment fell within the statutory constraints on damages but because it held that identification of the employer for the purposes of the general law was constrained by the deeming provision. It would have been sufficient to support the conclusion reached by Meagher JA to conclude that the deeming provision did not apply to the determination of which company was the employer for the purposes of general law damages, that not being a purpose of the Act. His Honour did not need to go further and state that the deeming provision only applied to the compensation scheme under the Act. Thus, the reasoning in OP Industries appears to be based on an assumption that if the deeming provisions apply to the constraints on common law damages, they must also apply to the cause of action for the purposes of common law damages claims. In my view, that assumption is false. The statutory limitations imposed on claims for damages do not depend on employment according to general law principles."

67 In Ebb, the Court of Appeal concluded:

"[58] To the extent that the reasons of the majority in OP Industries suggest that the deemed employment provisions, now found in Schedule 1 to the 1998 Act, will affect general law principles as to the relationship between those causing and suffering injury in the course of work, that approach is not consistent with the statutory deeming applying only 'for the purposes of the Act'."

68 The appellant in Ebb also argued the reasoning of the High Court in Crowley also affected the conclusion in OP Industries. In Crowley, there was a public liability policy issued by the insurer to the jockey club which did not extend to injury claims to any person "arising out of or in the course of the employment of such person in the service of the Insured". The issue in Crowley was whether the exception in the insurance policy covered deemed employment. The legislation considered in Crowley was the Workers' Compensation Act 1926 (NSW), which was the predecessor to the Workplace Injury Management and Workers Compensation Act.

69 Basten JA in Ebb referred to Barwick CJ's reasoning in Crowley where his Honour stated:

"[38] ... The extension of the definition of a worker to include a stablehand riding work on a racecourse operated by a racing club is made by the Workers' Compensation Act 'for the purposes of the Act'. Such a person is deemed for the purposes of the Act to be a worker employed by the racing club. But the stablehand is not required to be treated as a worker in the employ of the racing club for any other purpose. Thus s 6(10) of the Workers' Compensation Act will not itself make the stablehand riding work for a horse trainer, a worker in the employ of the racing club within the meaning of the policy."

70 Basten JA also stated that Crowley:

"[39] ... [I]s authority for the proposition that the deeming provision in the 1926 Act did not affect the operation of the policy which was not a statutory policy under the 1926 Act, so that a reference in the exception to 'the course of employment' did not necessarily include deemed employment."

71 In Racing NSW, Racing NSW sought a declaration under the Workers Compensation Act 1987 that the race club held a workers compensation policy with the NSW Self Insurance Corporation (which was a continuation of the Insurance Ministerial Corporation). This declaration was sought for the liability and legal costs of the race club in relation to a jockey's injury claim.

72 In dismissing the application, Einstein J made the following comments in relation to cl 9 in Sch 1 of the Workplace Injury Management and Workers Compensation Act:

" [32]

...

vi. Although it may be conceded that clause 9(1)(c) has wide application 'for the purpose of the Act' it does not follow that the fictional 'employer' is to be substituted for the actual employer in every section of the Act. Clause 9(1) does not at least in express terms, provide that for the purposes of the Act 'employer' means those persons deemed by the clause to be employers.

...

ix. ... The employer of the trainee or apprentice is the actual employer by whom the trainee or apprentice is employed. Clause 9(1) does not on its terms make the racing club or association the employer..."

73 Clause 3 of the deed contemplates that the plaintiff may "ride outside work" for a trainer other than her master and she says that is precisely what she was doing. When the plaintiff was engaged to ride Walking Street, she was riding outside work. While the plaintiff's deemed employer maybe Illawarra Turf Club or Racing NSW, it does not follow that one of them is the actual employer at the time of the accident. The plaintiff does not allege that she was riding under her apprenticeship or alternatively, in the course of her employment with Bede Murray or Murray Family Investments. At the time of the accident she says that she was riding Walking Street at the request of Paul Murray. While Paul Murray was employed by Murray Family Investments as a foreman he was also working in his own right as a trainer (T 35.33-35; 39.10). At the time of the plaintiff's accident he may have been acting in his individual capacity as a trainer.

74 To establish who was the plaintiff's actual and/or deemed employer will depend on the facts and circumstances; in particular, the role the plaintiff and defendants played on race day and at the time of the accident. In order to ascertain these facts and circumstances, particularly where there is no written contract between the plaintiff and Racing NSW, nor the plaintiff and Paul Murray, evidence as to the plaintiff's employment can only be ascertained at trial. It is my view it is arguable that Paul Murray and/or Chris Behan were negligent and caused the plaintiff's injuries. It is not clear what role Murray Family Investments had to play on race day, if any, but again that will depend on the evidence given at trial, particularly that given that by Paul Murray. If either Murray Family Investments Paul Murray or Chris Behan is found liable not in their capacity as an employer of the plaintiff, ACE's policy may respond.

Is there an arguable case that the policy responds?

75 ACE issued what is described as a public liability/professional indemnity policy for the Australian Trainers' Association (National Policy) (the policy).

76 It is necessary to briefly refer to some of the relevant clauses of the policy.

The policy of insurance

77 The schedule to s 1 (public liability) identifies the "Named Insured" as "The Australian Trainers' Association representing, and on behalf of, racehorse trainers ... licensed by ... Racing NSW". The "Named Insured" is defined to mean "each and every individual licensed racehorse trainer identified by name by the Licensing Authority and insured by this Policy." It is accepted that the named insured includes Paul Murray, Bede Murray (who is not a defendant in these proceedings) and Murray Family Investments.

78 "The Insured" is defined to relevantly mean:

"(a) The Named Insured in the Schedule

(b) A company through which the licensed racehorse trainer conducts business provided such company is:

(i) Controlled by the licensed racehorse trainer

(ii) Not less than 50% shareholding is held beneficially by the licensed racehorse trainer or members of his/her immediate family (including any defacto spouse)

but only to the extent of the Business description in the Schedule

...

(e) Any persons who are assisting the Named Insured on a voluntary basis.

(f) Any employee of the Named Insured (as defined by the relevant Worker's or Workman's Compensation legislation or ordinance), including those indentured as apprentices".

79 The policy states that it indemnifies the insured for amounts which the insured shall become legally liable to pay by way of compensation by reasons of, relevantly, personal injury.

80 "Personal Injury" is defined to include bodily injury. There does not appear to be any dispute that if the defendants are liable to the plaintiff, that is a liability arising by reason of "personal injury" to the plaintiff.

81 The accident occurred on 30 December 2006, which is within the policy period of 1 August 2006 to 1 August 2007.

82 The "Geographical Limits" of the policy include the whole of Australia. There is no dispute that the plaintiff's injuries occurred within the "geographical limits".

83 "Occurrence" is defined as an "event ... which results in Personal Injury ... neither expected nor intended from the standpoint of the Insured". The insurer has not argued that the rearing of the horse Walking Street on the day of the accident was not an "occurrence" for the purposes of the policy.

84 "Business" is defined as "Licensed thoroughbred racehorse training and all activities incidental thereto". The plaintiff submitted that given the accident in question occurred during an organised horse race, it does not appear there is any doubt that the relevant "occurrence" was one that occurred in connection with the business of training racehorses.

85 Section 1 on page 5 is headed "Extensions". It states that the policy extends to indemnify the insured of any legal liability they may incur arising out of activities of jockeys (other than the liability referred to in Exception (p)).

86 Section 1 (this time on page 7 of the policy) is headed "Exceptions". Exception (a) and (p) read:

"[ACE] shall not be liable for claims in respect of:

(a) Personal Injury ...

(i) for which insurance against such liability (whether the insurance is limited in amount or not) is or would have been provided under a Policy in a form prescribed or approved under or issued in pursuance of any Workers' or Workmen's Compensation legislation applicable to the Insured or any extension of such Policy granted on request as a matter of usual practice by insurers authorised to issue policies.

(ii) to or of any person in the service of the Insured and which claims arise from a liability imposed by any Industrial Award or Agreement or Determination.

(iii) to or of any member of the insured's family or persons permanently residing with the insured, which shall include any share in any horse trained by the Insured."

and

"(p) Liability more specifically indemnified and recoverable under the terms of the insurance policy issued to the Australian Jockeys' Association for its members and/or insured persons there under, policy number XXXX."

87 It is clear that the plaintiff fell and suffered personal injury. The same argument as outlined earlier by the parties is repleaded here. ACE submitted that its policy does not respond because the claims against both Murray Family Investments and Paul Murray fall within the exclusion clause (a) and it therefore follows that neither are entitled to indemnity under the ACE policy in respect of the plaintiff's claim. The plaintiff's position is that to rely upon the personal injury exclusion has no merit because the plaintiff was not the employee, or deemed employee, of any of the defendants at the time of the accident.

88 In Crowley, the exclusion clause contained the words "the course of employment". The issue in Crowley was whether the exclusion in the insurance policy covered deemed employment. The wording of the ACE policy is different. It does not contain the words "the course of employment". The wording of the exclusion clause of ACE's policy, is that ACE will not be liable for personal injury "for which insurance against such liability ... is or would have been provided under a Policy ... issued in pursuance to any Workers' or Workmen's Compensation legislation ..." This wording is broad. They could be a reference to s 4 of the Workplace Injury Management and Workers Compensation Act. Section 4 relevantly reads:

"4 Definitions

...

Workers Compensation Acts means this Act and the 1987 Act.

workers compensation legislation means:

(a) this Act and the instruments under this Act, or

(b) the 1987 Act and the instruments under that Act, or

...

(e) any other Act or instrument (or part) prescribed by the regulations."

89 It should be noted that in "construing any exclusion, the language of which admits of more than one interpretation, the court takes into account both the contra proferentem principle (which is well established in insurance law, whatever its status might be in other areas of contractual interpretation ... ), and the principle that it would not give effective business operation of a contract if an exclusion clause inappropriately circumscribed the cover provided by the insuring clauses": see Transfield Services (Australia) v Hall; Hall v QBE Insurance (Australia) [2008] NSWCA 294 per Campbell JA at [191].

90 The exclusion clause refers to any workers or workmen's compensation legislation. It may not cover the situation where there is no employer/employee relationship between any of the parties. The plaintiff may have been acting in her own right and has no actual employer but her deemed employer is either Illawarra Turf Club or Racing NSW. Paul Murray may have been acting as a trainer in his own right. Chris Behan may also have been acting in his own right with no actual employer but is also a deemed employer of Illawarra Turf Club or Racing NSW. The true position of Paul Murray on race day has not been assisted by the evidence he gave which is at odds with the pleading in his defence. It is arguable that the exclusion clause in ACE's policy does not apply. In my view, the plaintiff has shown that there is both an arguable case against the insured and that the policy issued by ACE responds.

91 I grant leave to the plaintiff to join ACE Insurance Ltd as the sixth defendant to these proceedings.

92 Leave is granted to the plaintiff to file the proposed amended statement of claim within 14 days.

93 Costs are reserved.

The Court orders that:

(1) Leave is granted to the plaintiff to join ACE Insurance Ltd as the sixth defendant to these proceedings.

(2) Leave is granted to the plaintiff to file an amended statement of claim within 14 days.

(3) Costs are reserved.

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Decision last updated: 03 March 2014