The plaintiff, Russel Cook, was injured as a result of a
motor vehicle accident. The driver, Ronald Buckingham, negligently
ran off the road when driving the plaintiff to work. Mr Cook sued
for damages sustained as a result of the accident.
Two actions were taken and heard together with respect to
liability arising out of the accident.
Firstly, Mr Cook sued for damages sustained as a result of the
accident, and third party proceedings were taken by the driver
against the Motor Accidents Insurance Board
(MAIB), claiming an indemnity. The MAIB, which
would ordinarily be liable to indemnify a driver, contended that in
these circumstances it was not liable because the driver was acting
in the course of his employment and therefore provisions of the
Workers Rehabilitation and Compensation Act 1988 (Tas)
("WRC Act") applied to the claim for damages.
Secondly, the employer sued the driver, Mr Buckingham, seeking
reimbursement of workers compensation payments to Mr Cook. The
driver again took third party proceedings seeking an indemnity from
The driver's negligence
The driver conceded negligence but relied on a defence under s
138AB(1) of the WRC Act which, at the time, provided that a worker
needed to lodge an election with the Workers' Compensation
Tribunal in order to seek common law damages, which could only
occur if there was a whole person impairment of 30% or more. In
considering whether this section was applicable as a defence, Blow
J had regard to whether the driver was driving in the course of his
employment (and thus, whether the employer was vicariously liable
for the purposes of this section).
Blow J considered a range of English and Australian authority on
the issue of vicarious liability. In reliance on English authority
which suggested that there needed to be a contractual obligation to
travel in a car on the way to work for it to be considered in the
course of employment, Blow J held that the driver was not acting in
the course of employment. This was despite the fact that the
employees were paid for their travelling time. Important factors
for the finding were that the employees were free to choose routes
of travel, mode of transport, that they only received an allowance
for travel rather than remuneration and that the 'driver
was employed to operate an excavator and not to be a
chauffeur'. On this basis it was held that the provisions
of s 138AB did not apply and provided no defence to the negligence
of the driver. Mr Cook was therefore entitled to damages at common
The MAIB is generally bound to indemnify the user of a motor
vehicle pursuant to s 14 of the Motor Accidents (Liabilities and
Compensation) Act 1973 (Tas) ("MALC Act"), but this does
not apply to injuries where the WRC Act applies. MAIB submitted
that as Mr Cook's injuries arose out of his employment, it was
not liable to indemnify in this case.
Having regard to s 25(6) of the WRC Act, which provides that an
injury does not arise from a worker's employment if it occurs
when the worker is travelling to and from their place of
employment, Blow J concluded that the injury did not arise from the
driver's employment. On this basis it was held that the WRC Act
did not apply, and the driver was entitled to an indemnity pursuant
to s 14 of the MALC Act.
The employer claimed an indemnity from the driver pursuant to s
134(1) of the WRC Act. Under s 81AB an employer who disputes
liability for worker's compensation must serve written notice
to that effect within 84 days. It was argued that the
employer's failure to do so resulted in it being taken to
accept liability' and therefore brought the injury under the
category of 'an injury for which compensation is payable'.
However, Blow J held that the failure of the employer to dispute
did not make it liable to pay compensation because there may be
many reasons why liability may not be disputed (e.g. mistake, an
oversight, generosity or as a deliberate commercial decision). It
was held that the existence of an indemnity in the circumstances
would be unjust. The employer was not entitled to an indemnity as
it was not 'liable to pay compensation'. Section 134(1) is
to be interpreted as conferring a right to indemnity only where
compensation is payable to a worker under s 25(1) of the Act.
This case, specific to Tasmanian workers' compensation and
motor accidents legislation, demonstrates the complexities for
travel claims in this jurisdiction. Workers' compensation
insurers should take note to be extremely careful when making
payments in such circumstances – the road to recovery may
turn out to be a dead end. However, the findings of Blow J have
been appealed by the MAIB, so we shall see.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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