For many years, SES has operated as a courier company in Sydney. The company has many employees on its payroll working as deliverymen and women. Two years ago, due to a rapid expansion in business, SES engaged the services of four subcontractors to do part of the deliveries for the company. Bradley Wiggins is one of these subcontractors.

There is no written contract between SES and individual subcontractors. Subcontractors are also free to work for other companies. However, because of the volume of work from SES, its subcontractors are fully occupied and do not need to work for any other companies. It is the policy of SES that each sub-contractor should own a two-ton van for the delivery work. SES also provides finance to subcontractors to purchase the vans. However, subcontractors are under no obligation to take or accept such finance.

It is also the policy of SES that each owner-driver has his or her vehicle painted in SES colours and bear the SES logo. SES pays for the costs of such painting and signs on the vehicles. To ensure a smooth operation, SES encourages all its subcontractors to use vehicle maintenance and refuelling services provided by SES. The cost of the fuel and maintenance services are deducted from the payments to the subcontractors.

SES requires all subcontractors to report for work at the SES headquarters at 7.15 am. each morning. The subcontractors are also obliged to make themselves available for work till 7.15 p.m. While on their delivery rounds, all subcontractors remain in touch with SES head office by means mobile phones supplied by SES. All SES subcontractors are paid on the basis of kilometres travelled for deliveries. None of the subcontractors is on the superannuation scheme organised by SES.

Mr Wiggins' first job one day recently was to deliver a package to Lindfield High School. After entering the school by the front gate, Mr. Wiggins fell into a ditch which was partially obscured by long grass. He fractured his hip badly and now requires hip replacement surgery. He has been advised that because of severe muscular and tissue damage he will probably have ongoing problems.

The ditch had been dug by employees of North Shore Plumbing Pty Ltd, who were working on upgrading connections for the High School. Despite persistent requests from the Headmistress that the plumbers should put a protective barrier around the ditch, they had failed to do so. The headmistress had also advised SES to use the back entrance to the school because of the ditch near the front gate, but SES failed to pass on this information on to Mr Wiggins.

When the headmistress tried to contact North Shore Plumbing following the accident, she learned that the business was likely to go in to liquidation, and was also uninsured.

Discuss:

(a) Is Mr Wiggins an employee so that he would have a claim for workers compensation in respect of his injury? (b) Any common law negligence claims Mr Wiggins could bring for personal injury damages?