Author: Mandy Jaswal
Judgment date: 12 March 2021
Citation: Adlawan v Recochem Inc  NSWSC 223
Jurisdiction: Supreme Court of New South Wales
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:
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%.
(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  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  NSWCA 261.
The Court concluded that s 122 of MACA applied.
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.