Employment Law – Rights and liabilities as between employer and third parties – Liabilities of employer – For torts of employee – Acts in common employment and within scope of authority – Particular cases – Employee driving fellow employee to work – Employer providing vehicle, fuel and payment for travelling time.

Workers Rehabilitation and Compensation Act1988 (Tas), s138AA(3).
Comino v Lynch [1959] QWN 49; Joss v Snowball (1969) 72 SR(NSW) 218; Commonwealth v Cocks (1966) 115 CLR 413; Greenwood v Commonwealth of Australia [1975] VR 859; Vandyke v Fender [1970] 2 QB 292; Nottingham v Aldridge [1971] 2 QB 739, considered.
Aust Dig Employment Law [1103]

Workers Compensation – Entitlement to compensation – Employment related injury, disability or disease – Scope of employment – Acts incidental to contract of employment – Injuries sustained in streets or public places – Journeying on public road – Employer providing vehicle and paying for part of travelling time between residence and work site – Whether injury arose out of and in course of employment.

Motor Accidents (Liabilities and Compensation) Act 1973 (Tas), s14(3)(a)
Workers Rehabilitation and Compensation Act1988 (Tas), s97(1)(b).
Henderson v Commissioner of Railways (Western Australia) (1937) 58 CLR 281; Humphrey Earl Ltd v Speechley (1951) 84 CLR 126; Hockey v Yelland (1984) 157 CLR 124; Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, referred to.
Aust Dig Workers Compensation [115]

Workers Compensation – Alternative rights against employer and/or third parties and consequences thereof – Rights of and against third parties – Right of employer to indemnity or contribution from third party – By person "by whom compensation is paid or payable" – Injury for which compensation is payable – Employer not liable to pay compensation but deemed to have accepted liability after not disputing claim.

Workers Rehabilitation and Compensation Act1988 (Tas), s134(1).
Aust Dig Workers Compensation [282]

REPRESENTATION:

Counsel:
             Plaintiff Cook (852/2009):  K E Read
             Plaintiff Gradco Pty Ltd (46/2011):       P L Jackson
             Defendant (both actions):  T Cox
             Third Party MAIB (both actions):           B R McTaggart
             Third Party QBE (46/2011):  P L Jackson
Solicitors:
             Plaintiff Cook (852/2009):  Murdoch Clarke
             Plaintiff Gradco Pty Ltd (46/2011):       Wallace Wilkinson & Webster
             Defendant (both actions):  Temple Smith Partners
             Third Party MAIB (both actions):           McLean McKenzie & Topfer
             Third Party QBE (46/2011):  Wallace Wilkinson & Webster

Judgment Number: [2012] TASSC 53
Number of paragraphs: 64

Serial No 53/2012
File Nos 852/209
46/2011

RUSSELL DAVID COOK v RONALD FREDERICK BUCKINGHAM
MOTOR ACCIDENTS INSURANCE BOARD (Third Party)
GRADCO PTY LTD v RONALD FREDERICK BUCKINGHAM
QBE…

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 Cook v Buckingham

Details

AGLC: Cook v Buckingham [2012] TASSC 53
Case: [2012] TASSC 53
Decision Date: 10 August 2012

CaseChat Overview and Summary

In the case of Cook v Buckingham, the dispute involved an employee, Cook, and his employer, Buckingham, who was a contractor. Cook was injured when Buckingham’s vehicle, which Buckingham had provided for Cook’s commute to work, collided with another vehicle. The central issue was whether Buckingham, as the employer, could be held liable for the tort committed by his employee, Cook, under the doctrine of vicarious liability.

The court had to determine whether Buckingham could be held responsible for the accident given that he had provided the vehicle, fuel, and payment for travelling time. The court considered whether the act was carried out in the course of employment and whether Cook was acting within the scope of his employment when the accident occurred. It was noted that Buckingham had provided the vehicle and paid for travel time, which suggested an involvement in the circumstances leading to the accident.

The court concluded that Buckingham could be held liable under the doctrine of vicarious liability. The court reasoned that since Buckingham had provided the vehicle and paid for travel time, he had effectively facilitated Cook’s employment by providing the means of transport. The court found that the accident occurred while Cook was performing an integral part of his duties, thereby falling within the scope of employment. The court held Buckingham liable for the tort committed by Cook.

Orders