Australia: The long and winding road: Interplay of MVAs and Workers Compensation in Tasmania-Cook v Buckingham [2012] TASSC 53

Last Updated: 17 November 2012
Article by Louise Cooper


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 MAIB.

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 law.

MAIB's liability

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.

Employer's indemnity

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.