When a forklift goes rogue at work, can MACA come to the rescue?

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Last updated: 22 Jun, 2021

Originally Published by Andrew Gorman and Mandy Jaswal on Thursday, March 18, 2021 9:45:34 AM


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

Negligence/Contributory Negligence

There being no persuasive evidence of defect in the forklift, Cavanagh J found that the accident arose as a result of the Defendant's failure to instruct the Plaintiff not to park the forklift in the manner he did, on a sloping driveway. The Court rejected the Plaintiff's allegation that he applied the handbrake fully.

Applying the common law principles set out in Boral Bricks Pty Ltd v Cosmidis (No 2), Cavanagh J observed that the correct legal question in determining contributory negligence in accordance with s5R of the Civil Liability Act 2002 (NSW) (CLA), is whether a reasonable person in the position of the Plaintiff, that is having the knowledge which the Plaintiff had or ought to have had, was negligent.

The Court found the assessment of contributory negligence is an evaluative exercise having regard to a range of factors. The momentary lapse of the Plaintiff when compared to the overall conduct of the Defendant should result in a finding of contributory negligence at 20%.

Does MACA apply?


Section 122 of MACA is in the following terms:


(1) This Chapter applies to and in respect of an award of damages which relates to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle.


The critical issue here involved the causal connection between the injury and the fault in question. For MACA to apply, the fault must be in the use or operation of the vehicle. The Defendant submitted that the fault in failing to give proper instruction should be characterised as a system of work case with the fault arising prior to the use or operation of the vehicle.

Adopting the words of Basten JA in TVH Australasia v Chaseling [2012] NSWCA 149, Cavanagh J, found that fault in the owner of a vehicle in failing to provide proper training is a fault in the use or operation of the vehicle. This conclusion was not undermined because the fault can be characterised as a failure to provide instruction. There is nothing in the Act that suggests a dual characterisation, ie including a 'system of work ' case is impermissible: Zurich Australian Insurance Limited v CSR Limited [2001] NSWCA 261.

The Court concluded that s 122 of MACA applied.

Why this case is important


The Supreme Court has affirmed that the fact that a work injury claim arises from an employer's failure to adequately train a worker does not preclude the application of MACA. Where that failure gives rise to a motor accident it may be characterised as fault in the use or operation of the vehicle.

Despite the occurrence of an accident in the course of employment where the employer is the beneficiary of the worker's actions, ordinary principles of contributory negligence apply. The defence will be established if a reasonable person in the position of the Plaintiff, that is, having the knowledge which the Plaintiff had or ought to have had, was negligent.

These principles have equal application to claims made under Motor Accidents Injuries Act 2017.