I have previously reported on the case of Secretary, Ministry of Health v Dawson [2019] NSWWCCPD 30 (see Are St John (NSW) volunteers deemed employees of NSW Ambulance? (July 10, 2019)). In that earlier post I said:

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…

The gist of Ms Dawson’s argument was that by virtue of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) Sch 1, cl 16 she was, when volunteering for St John Ambulance NSW, a deemed employee of the Ambulance Service of NSW and entitled to workers compensation. Based on that reasoning, her solicitors directed her claim to QBE, the workers compensation insurer for the Secretary, Ministry of Health. The insurer denied liability. That decision was challenged in the NSW Workers Compensation Commission. An arbitrator agreed with Ms Dawson and found she was entitled to compensation. 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 another arbitrator to redetermine the matter. That appeal was the subject of discussion in my earlier post.

The matter was re-heard by a different arbiter on 5 September 2019. The Arbitrator found that Ms Dawson was not a deemed employee and entered an award in favour of the Ministry of Health. This time Ms Dawson appealed the decision. The appeal was heard, and dismissed, by Deputy President Wood – Dawson v Secretary, Ministry of Health [2020] NSWWCCPD 16 (19 March 2020).

The legislation

The Workplace Injury Management and Workers Compensation Act 1998 (NSW), along with the Workers Compensation Act 1987 govern compensation for employees injured in the course of their work. This scheme is extended to people who are not employees. Some people are ‘deemed’ to be employed that is they are treated as if they are employees even though they are not. The list of deemed employees is set out in Schedule 1 to the Workplace Injury Management and Workers Compensation Act 1998. Clause 16 of Schedule 1 says:

16 VOLUNTARY AMBULANCE WORKERS

(1) 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.

(2) For the purposes of assessing the compensation payable to a person to whom this clause applies, the “average weekly earnings” of the person are–

(a) if the person was working under a contract of service immediately before engaging in the ambulance work–to be computed according to the earnings of the person under that contract of employment, or

(b) if the person was not working under a contract of service immediately before engaging in the ambulance work–to be such amount as the Commission considers to be reasonable in the circumstances.

(3) In this clause,

“ambulance work” means work in or in connection with the rendering of first aid to, or the transport of, sick or injured persons.

Relevantly the Health Services Act 1997 (NSW), which governs NSW Ambulance, says:

67H HONORARY AMBULANCE OFFICERS

(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.

As the note to s 67H(1) says, honorary officers are not employees so are not, prima facie, entitled to workers compensation if injured in the course of their duties. I would suggest that cl 16 of Sch 1 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) is intended to govern those officers appointed as honorary officers with NSW Ambulance.

The Health Services Act 1997 (NSW) s 67B also says:

(1) The Health Secretary has, on behalf of the Crown, the following functions–

(a) to provide, conduct, operate and maintain ambulance services,

(b) to co-operate with or provide assistance to any person or organisation for the purposes of providing, conducting, operating and maintaining ambulance services…

The question was not, however whether NSW Health could cooperate with St John in the provision of ambulance services, but relevantly whether it did at the time and in circumstances relevant to Ms Dawson’s injury (Dawson v Secretary, Ministry of Health at [66]).

Ambulance work in cooperation with NSW Health

Ms Dawson’s argument was that St John Ambulance (NSW) did ‘ambulance work’ ‘in co-operation’ with NSW Health and NSW Ambulance and she was therefore a deemed employee. In support of that argument she relied, at first instance, on the fact that the St John patient care record was a triplicate form and one page was delivered to attending paramedics if and when they were called to take over the care of a patient.

On appeal she sought to rely on the reference to St John Ambulance as a supporting organisation in NSW Healthplan (see Commonwealth to pay NSW to reimburse firefighters (December 29, 2019)) also demonstrated the she ‘was working in co-operation with NSW Health’ ([11]). At [27] Deputy President Wood said ‘The HEALTHPLAN is not evidence of any arrangement with St John or co-operation between the Health Administration Corporation in respect of the first aid services St John provided at race meetings’. The application to tender the Healthplan as relevant evidence in the appeal, was rejected.

Before the arbitrator, Ms Murphy Manager of Insurance and Risk for NSW Health gave evidence ([53]-[56]) that:

(a) at no time had a St John Ambulance worker or volunteer ever been included in any workers compensation policy;

(b) St John’s vehicles were never included in the Health Administration Corporation’s vehicle declaration or the vehicle declaration for NSW Ambulance;

(c) St John had never been identified as an organisation or entity within the NSW Health Annual report;

(d) St John was not a non-government organisation that received funding from NSW Health;

(e) the Health Administration Corporation did not exercise any control over the operations of St John Ambulance;

(f) she was not aware of any affiliation between NSW Ambulance and St John Ambulance, and

(g) the Health Administration Corporation did not indemnify or give approval or instruction to St John about attending events.

Ms Murphy said that the appellant’s work as a volunteer with St John was solely at the direction of St John and was not with the consent of or under the authority or supervision of Health Administration Corporation. Ms Murphy added that the Health Administration Corporation would have no knowledge of St John’s work.

Ms Murphy stated that the pink copy of the Patient Record referred to by the appellant was St John’s internal document and was not required by NSW Health or NSW Ambulance who would each complete their own documents and patient records.

Ms Murphy denied that the appellant voluntarily attended the events with the consent or authority of the Health Administration Corporation. Ms Murphy added that there was no indication in the NSW Health annual financial report of any payment or reimbursement from NSW Health to St John.

Deputy President Wood, reviewing the Arbitrator’s decision, said (at [77]):

The Arbitrator considered that what emerged from the evidence was that St John and the Health Administration Corporation worked independently of each other in providing first aid services or treatment to a patient who had been injured at an event in which St John was providing those services up to reaching the point where their competency skills were exhausted. In the Arbitrator’s view, the fact that there may have been communications between the volunteer and the paramedic was purely coincidental and not a consequence of any planning or arrangement about how the first aid was to be administered at such events. The Arbitrator said that the ambulance work that the appellant did on the day of her injury could not have been work done together with the Health Administration Corporation.

Ms Dawson appealed.

The appeal

The question on appeal is whether the decision below was made according to law and was open on the evidence. It is not a chance to simply reargue the case. The appellant has to demonstrate that the original decision maker, in this case the arbitrator, had made a legal error.

When the matter was first before a court (rather than an arbitrator) Deputy President Snell determined (at [122]) that cl 16 ‘directs attention to the relationship between the alleged deemed worker and the Health Administration Corporation. Further the word “co-operation” meant “working or acting together or jointly.”

Ms Dawson argued that DP Snell’s comments were merely an observation not a binding determination and the second arbitrator was required to form his own view on what cooperation, in context meant. The alleged error was that the arbitrator failed to exercise his own discretion. This was rejected at [125] where DP Wood said:

I do not accept that submission. It is apparent that in determining the meaning of the word “co-operation,” which is a finding of fact, the Deputy President embarked upon a process of statutory construction… Such an exercise is part of the functions of the Commission and is, at the Presidential level, in the nature of a judicial exercise which is authoritative in respect of the Commission’s primary decision makers, the arbitrators. The Arbitrator applied that interpretation as he was required to do.

The second alleged error was the need to find that at the time of the injury, that is on 18 September 2015, Ms Dawson was working ‘in cooperation’ with NSW Health rather than finding that, in general St John and NSW Ambulance work together. DP Wood said (at [128]) ‘The appellant does not explain why she considers the Arbitrator was wrong’ and (at [132]) ‘The appellant has failed to identify any error…’

The third alleged error was that the Arbitrator look for proof beyond the civil standard of ‘on the balance of probabilities’. At [134] DP Wood said ‘The appellant’s submissions do not assist in relation to the identification of any error in the Arbitrator’s careful consideration of the evidence.’

The fourth ground of appeal was that the Arbitrator ‘erred in enlarging and including the issue of ‘injury’ with ‘co-operation …’. According to DP Wood this ground of appeal was ‘… incomprehensible and the absence of any cogent submission to explain or support the ground is fatal.’

The fifth ground was that ‘the Arbitrator erred in failing to accept that the appellant’s “uncontested” evidence’ of cooperation. At [146] DP Wood said ‘The appellant refers to her evidence as “uncontested”. That assertion is patently incorrect.’ The evidence of the appellant was challenged by the evidence of Ms Murphy and the Arbitrator had to weigh and consider that evidence to reach a conclusion. There was no error.

The sixth ground was an allegation that s 67B of the Health Services Act (quoted above) imposed an obligation upon NSW Heath to cooperate in the provision of ambulance services and this was evidence that they did cooperate. Of course s 67B gives a power to cooperate, but it does not impose a duty or obligation to do so. The arbitrator is quoted (at [151] as saying:

“The fact that the respondent had power to co-operate with St John with respect to the ambulance work St John did is one thing – the issue in this case is whether the respondent actually did so with respect to the work that Ms Dawson was doing voluntarily for St John on the day she had suffered her injury…’

Again, there was no error.

The seventh ground was that the arbitrator should not have accepted or been persuaded by Ms Murphy’s evidence as she was not a paramedic and did not know how paramedics and St John volunteers interacted in the field. At [157] DP Wood said:

The Arbitrator considered both the appellant’s evidence and that of Ms Murphy. The Arbitrator took into account the appellant’s submission that Ms Murphy’s role did not give her the capacity to provide evidence of whether the pink copy of the Patient Record was a document relied upon by the NSW Ambulance paramedics. He formed the view that Ms Murphy was familiar with the work undertaken by NSW Ambulance paramedics when attending a patient. He noted Ms Murphy’s responsibility for strategic management of the insurable risks in relation to employees and NSW Health volunteers. This included NSW Ambulance employees. He said those responsibilities would require her to have knowledge of the work that is done by those employed by NSW Health to provide ambulance services, including paramedics.

The Arbitrator also considered the submissions that the parties made about the evidence provided. DP Wood said (at [161]):

The Arbitrator’s reasons for accepting Ms Murphy’s evidence took into account the submissions of the appellant as to Ms Murphy’s capacity to give that evidence, the plausibility of her evidence, as well as her presentation. The Arbitrator’s conclusions were open to him. … there is no basis upon which to disturb the Arbitrator’s finding and this ground of appeal fails.

The eight, and final ground, was the allegation that the arbitrator failed to recognise that the fact St John Ambulance were allowed to charge fees for ambulance services (Health Services Act 1997 (NSW) s 67E(3) and the Workers Compensation (Ambulance fees) Order 2015) demonstrated the necessary cooperation. The Arbitrator said (quoted at [163]):

The order prescribes the maximum amount of compensation for which an employer is liable under s 60(1) to pay a worker for any cost the worker has incurred for any ambulance service as a result of an injury a worker has received arising in or out of the course of employment. It is fanciful to suggest, in my view, that the making of the order provides a basis from which an inference can be made that St John and HAC co-operate with respect to the performance of ambulance services.

Again there was no error.

All the grounds of appeal being dismissed, the Arbitrator’s determination that Ms Dawson was not a deemed employee stands.

Discussion

As noted in my earlier post it strikes me that this case must have been run by people who had, and despite earlier rulings have failed to gain, any understanding of how ambulance services are operated in Australia.

There are jurisdictional ambulance services (such as NSW Ambulance) and an increasing number of private providers including St John Ambulance. Of course they cooperate when patients move from the care of one to another but if that level of cooperation was all that was required for the Workplace Injury Management and Workers Compensation Act 1998 (NSW) then NSW Health would be the defacto workers compensation insurer for every paramedic and first aider in NSW. Even people who just stepped up at a car accident but made notes on their observations to give to the paramedics.

Volunteers who provide ambulance work in cooperation with NSW ambulance are honorary ambulance officers, it may extend to spontaneous volunteers at an emergency or community first responders. For community first responders who are part of the NSW SES or RFS one could debate whether the appropriate basis for compensation is the Workplace Injury Management and Workers Compensation Act 1998 or the Workers Compensation (Bush Fire, Emergency And Rescue Services) Act 1987 (NSW) but not much will turn on that given it is likely to be the same insurer given that all are state agencies.

Conclusion

To suggest that a volunteer with a separate legal entity (St John) that enters into its own arrangements with event providers is somehow a deemed employee of NSW ambulance strikes me as bizarre. St John is a provider in a market place and is responsible for its own volunteers. As I noted in my original post:

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.

I have no idea if that happened or what the outcome was.