Victorian WorkCover Authority & Anor v Game

(2007) 16 VR 393; [2007] VSCA 86

Victorian Court of Appeal

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Interrogate

Catchwords

1. Accident Compensation
2. › Worker
3. › Contract of service
4. › Whether claimant's late husband working under contract of service when fatal injuries sustained
5. › Multi-factorial approach to distinguishing employee from independent contractor
6. › Whether partnership member can individually enter contract of service
7. › Accident Compensation Act 1985 (Vic), ss 5(1), 8(1)
1. Employment Law
2. › Contract of service versus contract for services
3. › Multi-factorial test
4. › Competing indicia
5. › Partnership member performing work individually
6. › Whether existence of partnership precludes individual contract of service
1. Appeal
2. › Right of appeal on question of law
3. › Whether 'no evidence' contention can be raised on appeal when not raised at trial
4. › Scope of appeal under s 52(1) Accident Compensation Act 1985 (Vic)
5. › Whether question of law 'raised during proceedings'
1. Tort Law
2. › Vicarious Liability
3. › Distinction between employee and independent contractor
4. › Representation and identification with employer's business
5. › Whether reasoning from vicarious liability to employment status is impermissible

Quick Take

A person who is a member of a subsisting partnership may nonetheless individually enter into a contract of service with a third party in respect of particular work, with the partnership affecting only the legal relations between the partners inter se. The Hollis v Vabu concepts of representation and identification with the employer's business remain a valid tool for distinguishing employees from independent contractors after Sweeney v Boylan, provided they are used to analyse the nature of the relationship rather than as a standalone basis for imposing vicarious liability.