Yes you were injured, but was it because I was driving? Forklift operator challenges assessment under the Motor Accidents Compensation Act 1999 (NSW) – Toll Pty Ltd v Harradine [2016] NSWCA 374

Author: Jon Whealing
Judgement Date: 21st December, 2016
Citation: Toll Pty Ltd v Harradine [2016] NSWCA 374
Jurisdiction: New South Wales Court of Appeal[1]
Principles

  • The operator of a forklift is not considered to be driving a vehicle when it is stationary and being used to load and unload materials.
  • An injury is not compensable under the Motor Accidents Compensation Act 1999 (NSW) (the MACA) unless it was caused during one of the events specified in s 3A of the MACA.
Background

The plaintiff was involved in a workplace accident in February 2010, suffering injuries to his left arm.

The accident occurred when a stillage (a rectangular metal cage) which should have been securely fixed to the raised tines of a forklift, slid off and fell onto the plaintiff’s left arm.

It was not disputed that the operator of the forklift was negligent in using the cage when he knew that it was not securely fastened to the tines. It was therefore not disputed that the plaintiff’s employer (the defendant) had breached its duty of care to the plaintiff, or that the accident occurred during the use or operation of a vehicle.

Instead, the discrete issue centred on whether the plaintiff could satisfy the terms of s 3A of the MACA. The sub-sections of s 3A(1) limit compensable injuries to those sustained in the use or operation of a vehicle and those caused during:

a) The driving of a vehicle
b) A collision, or action taken to avoid a collision, with a vehicle
c) A vehicle running out of control
d) A dangerous situation caused by the driving of a vehicle, a collision or action taken to avoid a collision with a vehicle, or a vehicle running out of control.

In the District Court of New South Wales, the primary judge held that the above definition did incorporate the facts of this case. In his view, the plaintiff’s injuries were either simply caused during the driving of a vehicle or during a dangerous situation caused by the driving of a vehicle. Accordingly, the plaintiff’s damages were assessed under the MACA and not the more restrictive Workers Compensation Act 1987 (NSW).

The defendant appealed, submitting that:

  • The forklift operator was not driving the vehicle, as at the time the cage fell from the tines, the forklift was stationary
  • The predominant and immediate cause of the injury was the plaintiff’s own action in stepping onto the base of the cage and causing it to tilt
  • The dangerous situation was caused by the failure to secure the cage properly and the unsafe practice of working directly below an operating forklift. The act of driving itself played no part in accelerating or negating that failure.
Decision

The New South Wales Court of Appeal (the Court of Appeal) unanimously allowed the appeal.

The Court of Appeal found that the primary judge appeared to have assumed that by operating a forklift with an unstable load, the incident must have satisfied the requirements of s 3A. This assumption, however, did not reflect the plaintiff’s own admission that the cage only slipped when he placed his foot on it as he prepared to unload the last few bags.2

In terms of causation, the Court of Appeal noted that there was nothing in the plaintiff’s evidence to suggest the driving of the forklift itself contributed in any way to the cage falling from the tines. Rather, the evidence confirmed that the predominant and proximate cause of the plaintiff’s injuries was his own action in placing his weight on the cage as he unloaded the last of the bags. Accordingly, the plaintiff did not establish that his injuries were as a result of the driving of the forklift.

Similarly, the Court of Appeal found that the dangerous situation was not caused by the driving of the vehicle. The failure of the forklift operator to securely fasten the cage did not occur during the driving of the vehicle, nor was there any evidence to suggest that the driving of the forklift materially contributed to the risk that ultimately emerged.3

Finally, the Court of Appeal followed prior authorities in confirming a stationary forklift, in the process of loading or unloading, is not being driven for the purposes of the MACA.

Why this case is important

The Court of Appeal’s decision confirms the restrictive purpose of s 3A of the MACA. Although an accident may occur in the general use or operation of a vehicle, the sub-sections of s 3A must also be satisfied for an injury to be compensable under the MACA.

For insurers, it is worth considering the circumstances of each accident to ensure they respond to only those scenarios envisaged by the MACA.

Meagher JA, Sackville AJA, Schmidt J.
Ibid.
Ibid at [102].