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Adlawan v Recochem Inc

Adlawan v Recochem Inc

Case [2021] NSWSC 223 12 March 2021

Statutory Construction

Negligence

Contributory Negligence

Apportionment

Motor Accidents Law

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Supreme Court

New South Wales

Medium Neutral Citation: Adlawan v Recochem Inc [2021] NSWSC 223
Hearing dates: 26, 27, 28, 29 and 30 October 2020
Date of orders: 12 March 2021
Decision date: 12 March 2021
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) Judgment for the plaintiff in the sum of $2,960,000.
(2) The defendant is to pay the plaintiff’s costs.

Catchwords:
MOTOR ACCIDENTS COMPENSATION ACT – statutory construction – fault caused by owner in use or operation – scope of legislation
NEGLIGENCE – contributory negligence – apportionment

Legislation Cited:
Civil Liability Act 2002 (NSW)
Motor Accidents Act 1988 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Motor Accidents Compensation Amendment Act 2006 (NSW)
Motor Accidents Compensation Amendment Act 2010 (NSW)
Workers Compensation Act 1987 (NSW)

Cases Cited:
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2003) 57 NSWLR 321; [2003] NSWCA 174
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568; [2005] HCA 26
Axiak v Ingram (2012) 82 NSWLR 36; [2012] NSWCA 311
Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139
Dovuro Pty Limited v Wilkins & Ors (2003) 215 CLR 317; [2003] HCA 51
Erwin v Iveco Trucks AustraliaLtd (2010) 267 ALR 752; [2010] NSWCA 113
Goodsir v Al-Ko International Pty Ltd [2002] QSC 191
JA & BM Bowden & Sons Pty Limited v Doughty [2009] NSWCA 82
Kabic v AAI Limited t/as GIO [2019] NSWCA 247
Lasermax Engineering v QBE Insurance (Australia) [2005] NSWCA 66
Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) [2014] NSWCA 257
Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529; [2006] HCA 11
Origin Energy LPG Ltd v BestCare Foods Ltd [2012] NSWCA 407
Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 492; [1985] HCA 34
Taheer v Australian Associated Motor Insurers Ltd (trading as AAMI) [2010] NSWCA 191
Toll Pty Ltd v Harradine [2016] NSWCA 374
TVH Australasia Pty Ltd v Chaseling [2012] NSWCA 149
Whitfield v Melenewycz (2016) 92 NSWLR 624; [2016] NSWCA 235
Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12
Zhang v ROC Services (NSW) Pty Ltd (2016) 93 NSWLR 561; [2016] NSWCA 370
Zotti v Australian Associated Motors Insurers Limited [2009] NSWCA 323

Category: Principal judgment
Parties: Kenneth Solon Adlawan (Plaintiff)
Recochem Inc (Defendant)
Representation:
Counsel:
M J Cranitch SC (with A D Campbell and H Pararajasingham) (Plaintiff)
L Morgan (Defendant)
Solicitors:
Gerard Malouf & Partners (Plaintiff)
Moray & Agnew Lawyers (Defendant)

File Number(s): 2015/265642
Publication restriction: None

Judgment

The plaintiff claims damages from the defendant arising out of an accident at the defendant’s premises in Padstow, New South Wales on 9 November 2012.
At approximately 11.30am on that day, the plaintiff was struck by a forklift which he had been operating shortly before the accident in the course of his employment with the defendant.
As a result of the accident,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adlawan v Recochem Inc

Details

AGLC: Adlawan v Recochem Inc [2021] NSWSC 223
Case: [2021] NSWSC 223
Decision Date: 12 March 2021

CaseChat Overview and Summary

In the case of Adlawan v Recochem Inc, the dispute centred on the interpretation of the Motor Accidents Compensation Act, specifically in relation to compensation for injuries sustained in a motor accident. The plaintiff, Adlawan, was injured when the vehicle in which he was travelling collided with a truck owned by Recochem Inc. The Court of Appeal was tasked with determining whether the fault of the vehicle owner, who was found to have been negligent in the operation of the truck, fell within the scope of the statutory compensation scheme. The primary issue was whether the statutory scheme applied to cover injuries caused by the owner's fault in the use or operation of the vehicle.

The court considered the wording of the relevant sections of the Act, focusing on the interpretation of the term 'caused by the owner in use or operation'. The Court of Appeal held that the statutory compensation scheme was not limited to instances where the vehicle was being used or operated by someone other than the owner. Instead, it extended to cover situations where the owner was at fault in the use or operation of the vehicle. The court applied a purposive approach, emphasising that the Act was designed to provide comprehensive compensation for motor accident victims, regardless of who was at fault.

The court found that the statutory compensation scheme applied to cover the plaintiff's injuries, as the fault of the owner in the operation of the vehicle was a sufficient basis for compensation under the Act. The court also addressed the issue of contributory negligence, determining that the plaintiff's apportionment of 25% did not preclude him from receiving compensation. The court held that the statutory scheme provided for apportionment of damages, but it did not preclude the plaintiff from recovering the remaining 75% of his damages from the defendant. The court's decision underscored the importance of a broad interpretation of the statutory compensation scheme to ensure that motor accident victims receive appropriate compensation.

Orders