That seems like an odd question but is a question that had to be considered by the NSW Workers Compensation Commission in Secretary, Ministry of Health v Dawson [2019] NSWWCCPD 30.  With respect to those involved the case appears to have been run by people who did not have any idea about ambulance services in NSW.

The facts

The application, Ms Dawson was (or is) a volunteer with St John Ambulance Australia (NSW).  Whilst setting up for a duty at the Broadmeadow Racecourse she was injured.  She suffered a fracture dislocation of the ankle and was transported to John Hunter Hospital where she underwent surgery.   She spent 5 nights in hospital and had further surgery. She sought compensation for her losses.  Her solicitors directed her claim to QBE as the workers compensation insurer for the Secretary, Ministry of Health.  Not surprisingly the insurer denied liability.  The matter was heard by an arbitrator who found in favour of Ms Dawson. An appeal to the Presidential Division of the Commission was heard by Deputy President Snell who allowed the appeal but did not resolve the issue, instead referring the matter back to the arbitrator to redetermine the matter.

How did the issue arise?

The Workplace Injury Management and Workers Compensation Act 1998 (NSW) deems that certain people who are not employees are to be treated as if they were employees and are entitled to workers compensation accordingly.   Relevantly cl 16(1) of Schedule 1 says:

A person who (without remuneration or reward) voluntarily and without obligation engages in any ambulance work with the consent of or under the authority and supervision of or in co-operation with the Health Administration Corporation constituted by the Health Administration Act 1982 is, for the purposes of this Act, taken to be a worker employed by that Corporation.

The Health Administration Corporation is a corporation that consists only of the Secretary of the Ministry of Health (Health Administration Act 1982 (NSW) s 9). In essence cl 16 says that a voluntary ambulance worker is deemed to be an employee of the health secretary and is entitled to workers compensation as if they were an employee.  Ms Dawson sought to rely on that provision to obtain compensation from the workers compensation insurers for NSW Health.

Given the definition of ambulance services in the Health Services Act 1997 (NSW) (that is ‘services relating to the work of rendering first aid to, and the transport of, sick and injured persons’) the Arbitrator who heard the case had no difficulty in finding that Ms Dawson’s work the ‘erection of the marquee was a necessary preparation for the provision of first aid, and fell within the meaning of being “in connection” with the rendering of first aid. Ms Dawson was involved in ‘ambulance work’ at the time she suffered injury’ ([11]).  There was also no question that Ms Dawson’s work with St John was undertaken ‘voluntarily and without obligation’ ([12]).

Therefore Ms Dawson was ‘A person who (without remuneration or reward) voluntarily and without obligation engages in any ambulance work…’  The question was whether that work, conducted as a volunteer with St John Ambulance (NSW) was done ‘with the consent of or under the authority and supervision of or in co-operation with the Health Administration Corporation’ or, for all practical purposes, ‘in co-operation with’ NSW Ambulance.

The outcome at arbitration

The Arbitrator found there was cooperation with NSW Ambulance because, according to the arbitrator, there was evidence that St John received payments from the Health Administration Corporation and that there was general cooperation between St John and NSW Ambulance evidenced by the use of casualty record forms that were handed to treating paramedics to form part of the patient record when patient care was transferred from St John to NSW Ambulance.

The outcome on appeal

Given the findings, above, it’s not surprising that the appeal was allowed.

The basis of finding that there was payment and therefore cooperation between St John and NSW Ambulance was a gazette setting ambulance fees, made pursuant to the Workers Compensation Act 1987 (NSW).  The Workers Compensation (Ambulance Service Fees) Order 2015 (Ambulance Order), the Workers Compensation (Private Hospital Rates) Order 2015 and the Workers Compensation (Public Hospital Rates) Order 2015 set the fees that authorised providers, including St John Ambulance Australia (NSW) could charge if providing services such as ambulance transport.  The fees, if charged, were charged to the injured person’s employer (or more accurately, their workers compensation insurer).  Those orders do not indicate that the Health Administration Corporation was paying St John Ambulance (NSW) to provide ambulance services ([20] and [28]).  At [28] Deputy President Snell said:

The reasoning that led the Arbitrator to his finding [based on the Ambulance Order], that Ms Dawson engaged in any ambulance work with the consent of the HAC, was based on a false premise and was erroneous.

The remaining issue is what does the Act mean when it says ‘in co-operation with’ NSW Health and in particular NSW Ambulance?  At [46] Deputy President Snell said:

The basis on which the Arbitrator dealt with the issue of ‘co-operation’ was essentially found at [23] of his reasons. The Arbitrator said that “co-operation existed between St Johns [sic] and the HAC and [Ms Dawson’s] work fell within the umbrella of that general cooperation”. The evidence on which the Arbitrator apparently relied in making this finding was that of Ms Dawson, that a pro forma document, setting out a patient’s complaints, treatment and advice was completed by St John volunteers such as Ms Dawson, and “this document was provided to officers within the HAC and became part of the HAC’s records”. The Arbitrator said “[t]hat arrangement in my view is powerful evidence of co-operation between St Johns [sic] and the HAC”.

In running the case, the lawyers for the respondent relied on the evidence of Ms Murphy, NSW Health’s Manager – Insurance and Risk.  She gave evidence (at [56]-[57]) that:

… the HAC, to her knowledge, had no relationship, formal or informal, with St John. St John’s workers and volunteers were not included in the HAC’s workers compensation policy. St John was not identified in the HAC Annual Report as a NSW Health Organisation or part of NSW Ambulance. It did not receive financial support or grants from NSW Health. The HAC did not exercise control over it. She was unaware of any affiliation between St John and NSW Ambulance. The HAC did not provide indemnity or approval for St John to attend events. If Ms Dawson worked as a volunteer with St John, this was at the direction of St John, not with the consent, supervision or authority of the HAC.

Ms Murphy said the provision of a pink copy of the Confidential Patient Record, on transferring a patient, was an internal procedure of St John, and was not required by NSW Health. NSW Ambulance have their own paperwork and patient records, which are used when a patient is treated or transferred to hospital. She said the financial statements of NSW Health did not indicate reimbursement or payment to St John.

The Arbitrator simply did not deal with Ms Murphy’s evidence ([63]).  Deputy President Snell said (at [64]):

… the use made of the pink copy of the Confidential Patient Record was potentially important in various ways. The Arbitrator attached significance to it; it appeared to be the dominant reason he reached the view he did on ‘co-operation’…

And at [77]:

Whether the evidence established that Ms Dawson engaged in the ambulance work in cooperation with the HAC depended, at least in part, on the view that was taken of the lay evidence of Ms Dawson and Ms Murphy. The Arbitrator relied essentially on Ms Dawson’s evidence dealing with the pink copy of the Confidential Patient Record, that it was “provided to officers within the HAC and became part of the HAC’s records”. The evidence of Ms Murphy was that the HAC had its own paperwork that was used in patient transfers, and it had no need of the pink copy of the Confidential Patient Report generated by St John. If this were accepted, it is difficult to see that the other evidence about the pink copy could lead to a conclusion that the relevant work was “in co-operation with” the HAC. ‘Co-operation’, in the sense of working or acting together or jointly, would not be present.

The failure of the Arbitrator to consider the evidence led by the respondent to show why the use of the St Jon record form did not constitute relevant cooperation was a failure that warranted allowing the appeal.

Deputy President Snell did not resolve the issue but referred the matter back to be heard by a different Arbitrator ([79]).

Discussion

It is my view that the applicant’s arguments are fatally flawed but not for reasons given in the tribunal.

Health Services Act 1997 (NSW) s 67E

One issue that was touched on ([9]) is that it is an offence to operate ambulance services in NSW without the permission of the secretary (Health Services Act 1997 (NSW) s 67E(1)).  Exempt from that rule is St John Ambulance Australia (NSW) (s 67E(3)(a)).  It is inferred (see [22]) that Ms Dawson relied on s 67E(3) as evidence of cooperation or consent by the Health Secretary to the conduct of ambulance work by St John Ambulance.

In my view that argument (if that was indeed the argument being made) fails to make the distinction between the legislative and executive arm of government. The NSW Parliament is the author of the Health Services Act and it is the Parliament that has provided the permission to St John Ambulance to provide ambulance services.  It is the Parliament that has determined the scope of the Secretary’s discretion and they have said that the Secretary’s permission is not required for St John Ambulance.  Whether the Secretary approves or endorses the work of St John is not relevant as the Secretary’s permission is not required.

Section 67E in particular s 67E(3) is not, in my view, evidence that the work of St John is done ‘with the consent of or under the authority and supervision of or in co-operation with the Health Administration Corporation’.  Rather it shows that the work of St John is independent of the Corporation and they are entitled to do their work without the consent of the Secretary.  The Secretary has no role in approving, or not, the operations of St John (NSW).

Health Services Act 1997 (NSW) s 67H

None of the parties addressed the Health Services Act 1997 (NSW) s 67H.  That section says:

(1) The Health Secretary may appoint such persons as the Health Secretary thinks fit to be honorary ambulance officers.

Note: Honorary ambulance officers are not members of the NSW Health Service employed under Part 1 of Chapter 9.

(2) Honorary ambulance officers:

(a)        may carry out, without remuneration, such of the functions of the Health Secretary under this Act as the Health Secretary may from time to time direct, and

(b)       are subject to the control and supervision of the Health Secretary.

Honorary ambulance officers are persons ‘who (without remuneration or reward) voluntarily and without obligation [engage] in … ambulance work with the consent of or under the authority and supervision of or in co-operation with the Health Administration Corporation’.  With respect, it appears to me that the intention of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) cl 16 was to ensure honorary ambulance officers are deemed employees of the corporation so that they obtain workers compensation if they are injured in the course of their honorary service with NSW Ambulance.

Others who cooperate with NSW Ambulance

Others who provide ambulance services (that is ‘services relating to the work of rendering first aid to, and the transport of, sick and injured persons’) ‘with the consent of or under the authority and supervision of or in co-operation with the Health Administration Corporation’ would be those SES and RFS volunteers who work as community first responders, but their rights to Workers Compensation are likely to be dealt with under the Workers Compensation (Bush Fire, Emergency And Rescue Services) Act 1987 (NSW) as they are volunteering with the SES or RFS and it is the SES or RFS that has the agreement with NSW Ambulance.

Implications of the applicant’s argument

There will be times when St John volunteers and others will be working in cooperation with NSW Ambulance.  A mass casualty event where NSW Ambulance/NSW Health is taking the lead in managing the casualties and St John volunteers are deployed to run first aid posts for the walking wounded or to help crew NSW Ambulances would be, in my view, examples of relevant cooperation for the purposes of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) cl 16.  Equally a good Samaritan at an accident who starts first aid and remains on the scene helping paramedics may fall within the section.  But doing first aid, calling an ambulance and giving a handover even with paperwork would in my view be outside the section. If it is not everyone who does first aid could be a deemed employee.

If the applicant is right, and cooperation evidenced by handing over some patient record to ambulance paramedics is enough to bring a person under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) cl 16 then everyone who does first aid is potentially included.  First aid courses encourage people to make notes about what they observed and to pass them onto paramedics to form part of the complete patient record.  Completing a form, or scribbling a note, is surely not sufficient to bring a person within the contemplation of a deemed employee.

Where there are private ambulance providers in NSW, they may have permission both to operate and to carry and use scheduled drugs.  They too would have patient care records that would be handed to ambulance.  To the extent that any members of those services are volunteers rather than employees, then on the appellant’s arguments they too would be deemed employees of NSW Health.

If that were the case NSW Health would have no capacity to know how many people, it is at risk for or the circumstances in which they work.  There is no way any premium could accurately reflect the risk as the risk is unknowable.

Editorial

As with other cases involving this sector it is also of interest and comment that no-one actually called witnesses from either St John or NSW Ambulance to discuss how they work together and the links between them.

If Ms Dawson is looking to get compensation from someone other than St John Ambulance she would, in my view, be better off looking to the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW).  Whilst not specifically directed at St John, that Act does extend compensation to ‘a person who, in the opinion of the Self Insurance Corporation [that is the NSW Self Insurance Corporation constituted by the NSW Self Insurance Corporation Act 2004] having regard to all the circumstances, should be deemed to be an emergency service worker for the purposes of this Part.’  One could try to argue that a St John volunteer ‘should be deemed to be an emergency service worker’. The difference there is that the risk is carried by the insurance managed fund rather than a particular agency.

Ms Dawson’s best route for compensation would be to direct her claim to St John Ambulance which, hopefully, has insurance to provide workers compensation type cover for injured volunteers.

Conclusion

When this case came across my desk, I confess to being surprised that anyone would consider that a St John volunteer fell within the definition of a deemed employee as provided for in the Workplace Injury Management and Workers Compensation Act 1998 (NSW) cl 16.  Either it’s clever legal argument to try to find a remedy, or it’s evidence of a lack of understanding of the ambulance sector and someone found the section and thought ‘that looks right’ and did not really look any further.

The matter is back before an arbitrator who may again find that there is sufficient cooperation between St John and NSW Ambulance to make all St John volunteers deemed employees of NSW Ambulance.  If that is the result, I think it would come as a surprise to both St John and NSW Ambulance and their insurers.

My bet is that the applicant will lose; but I’ve been wrong before.