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Is a worker entitled to bring a workplace accident claim under Motor Accidents Compensation Act 1999 (NSW), if the relevant negligence involved a failure in the system of work? A recent decision by the NSW Supreme Court looks at the application of the motor accidents scheme to workplace injuries.

 

Author: Mandy Jaswal
Judgment date: 12 March 2021
Citation: Adlawan v Recochem Inc [2021] NSWSC 223
Jurisdiction: Supreme Court of New South Wales

Principles

• When assessing whether damages for a motor accident claim can be sought under the Motor Accidents Compensation Act 1999 (NSW) (MACA) as opposed to s 151E of the Workers Compensation Act 1987 (NSW) (WCA), both Sections 3A and 122 of the MACA must be satisfied.
• Fault of an owner may still be in the use or operation of a vehicle even if it is characterised as a failure to train an employee in the safe use of that vehicle.

Background

On 9 November 2012 the Plaintiff was injured whilst operating a forklift in the course of his employment with the Defendant. Moments after having alighted the vehicle, it rolled over his leg.

The Plaintiff claimed that the accident was caused by the negligence of the Defendant and that damages were recoverable under MACA. The Defendant argued that MACA did not apply. Firstly, negligence was denied. Secondly, even if the defendant was negligent, that did not invoke MACA because:

1. damages which are ordinarily payable to an employee arising out of negligence of the employer are limited by s 151E of the WCA
2. if it is accepted that both Sections 3A and 122 of the MACA are satisfied, the Defendant was not in operation of the vehicle at the time of the motor accident, therefore there was no causal connection between the injury and the fault of the defendant. The fault must be in the use of the operation of the vehicle.

Decision