An 18 year old bull rider who was severely injured in a fall whilst competing has won a compensation hearing ‘test case’ which entitles him to workers compensation benefits. Attwood Marshall Partner and Law Society accredited specialist in personal injury law, Jeremy Roche discusses the case and the ramifications for all injured bull riders in NSW.
On the 4th April 2014 Mitchell Gajkowski’s life changed forever. Mitchell was an 18 year old competitor in a bull riding event at the Camden Show. Mitchell had a strong history in bull riding already by the time he had turned 18. Mitchell started out riding poddy calves and steers. When Mitchell was 14 years of age he won the Australian title for steer riding and that spurred his dream to become a professional bull rider with the PBR in America.
On the 4th April 2014 Mitchell was riding in the open bull, the last event for the evening at the Camden Show which was in effect the highlight of the evening’s entertainment. Mitchell was riding a bull named Cocaine. As the bull came out of the chute into the arena the bull’s head reared up and collided with Mitchell’s head, knocking him out. Mitchell was flung backwards and his back hit the rear end of the bull which then propelled his head forward again in an arc-like motion which then immediately struck the bull’s head again, this time with greater force. The skin surrounding Mitchell’s ear was severed from the side of his head and he was then flung from the bull and collided for a third time with the surface of the arena.
Mitchell was attended to by the rodeo clowns who protected him after he had been thrown off the bull but the damage had already been done. Mitchell sustained a severe traumatic brain injury from the collision with the head of the bull.
Mitchell was flown by helicopter to the Royal North Shore Hospital. At the hospital Mitchell’s mother Megan was given the grim news that Mitchell would probably not survive. Mitchell remained in the Intensive Care Unit for 4 weeks and was placed on a ventilation tube. Mitchell was fed through a tube. Mitchell suffered further complications and developed pneumonia whilst in Intensive Care. Eventually Mitchell was transferred from Intensive Care to a Neurological Ward at Royal North Shore Hospital and then transferred to the Brain Injury Rehabilitation Unit of the Westmead Hospital.
The injury had a devastating impact on Mitchell who had lived an active and full life prior to the injury. Like a lot of country boys Mitchell enjoyed travelling to various locations engaging in bull riding events, playing sport, hunting and fishing. As a result of the injury Mitchell’s life changed forever.
As Mitchell recovered from his injuries he required constant care from his mother, his relationship with his girlfriend broke down and Mitchell had the grim prospect of facing life confined to a wheelchair. He did receive the benefit of an insurance payout from a policy taken out to cover bull riders however this policy only allowed for the payment of $50,000.00, an amount which was completely inadequate to cover Mitchell’s long term care needs after suffering a catastrophic brain injury.
Mitchell at the time of his injury was working as a final year apprentice butcher in a retail butchery and could have also expected to derive income from that profession until he commenced his work on the PBR circuit, both in Australia and the United States competing in bull riding events.
In mid 2014 Mitchell’s mother contacted Attwood Marshall for assistance to see if anything could be done about compensation for her son who suffered life-long devastating and catastrophic injuries. Whilst there was the possibility of a common law claim against the Show organisers and the stock contractor, a further claim conceivably could have been made under the deemed worker provisions of the Workplace Injury Management Act 1998 Schedule 1. Under that Schedule a worker can be categorised as a “deemed worker” in circumstances where the person can be categorised as an “entertainer”. Clause 15 of Schedule 1 under the 1998 Act indicated that a person who is engaged for fee or reward to take place as an entertainer in any public performance in a place of public entertainment to which the public is admitted on payment of a fee or charge is for the purposes of the Act taken to be a worker employed by the person conducting or holding the contest or public or other performance. Attwood Marshall researched this issue and found no case law indicating that a bull rider had ever attempted to be categorised under the Act as a deemed worker. In most worker’s compensation cases the concept of worker is not in dispute. There is normally a clear payment of wages to the worker and the worker receives a payment summary for tax purposes at the end of each financial year. In the case of bull riders payment summaries were not issued yet payments were made in a routine fashion when places were obtained at certain rodeo events.
Mitchell instructed Attwood Marshall to commence proceedings in the Workers Compensation Commission against both the Camden Show Society and the ABCRA (the Australian Bushmen’s Campdraft & Rodeo Association). Whilst the worker’s compensation insurers for both entities denied the claim, the NSW Workers Compensation Commission in a decision delivered on the 31st May 2017 categorised Mitchell as an entertainer and therefore a deemed worker under the Workplace Injury Management Act 1998. With this decision Mitchell becomes entitled to the benefits payable under the Workers Compensation Act which includes weekly payments of worker’s compensation for income support to retirement age in respect of a worker with highest needs, payment of all his medical expenses past and future for the rest of his life, the payment of a lump sum under the permanent impairment provisions of the Act which is yet to be determined but approximating $200,000.00 and most importantly, domestic assistance under Section 60AA of the Workers Compensation Act 1987 which provides payments for Mitchell’s mother Megan to care for him based on the fact that he is now confined to an electric wheelchair.
The case could not have been prosecuted without the assistance from WIRO under the ILARS Scheme. Mitchell’s legal costs and expensive investigations were covered by WIRO, a body established By the NSW Government to fund worker’s compensation cases where workers could not otherwise afford the legal costs of prosecuting a claim.
The decision is an important one and is ground breaking in that a bull rider has not been categorised as a worker or a deemed worker under the NSW Workers Compensation Act previously.
Attwood Marshall has instructions from two other bull riders injured in similar circumstances and those bull riders will from this decision be categorised as deemed workers under the Workers Compensation Act 1987.
The payment of the statutory benefits will never return Mitchell’s life to the state that it was in prior to the injury, however the payment of that compensation will make an enormous difference to the quality of life that Mitchell has and the benefits available to him in terms of rehabilitation, medical expenses, a lump sum and most importantly, domestic care to be provided from his mother.
Anyone else injured in similar circumstances involving bull riding activities in NSW is urged to contact Department Manager Kelli Costin on direct line 07 5506 8220, Freecall 1800 621 071 or email: email@example.com for a free initial consultation and discuss our ‘no win no fee’ terms. We have a dedicated team of lawyers who specialise in this area of law and practice exclusively in personal injury claims.
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