Leo N Dunn & Sons Pty Ltd v McPhillamy

Leo N Dunn & Sons Pty Ltd appealed to the New South Wales Court of Appeal against a decision concerning a workers compensation claim. The dispute involved a truck driver who suffered a back injury over time due to the twisting and shuddering of his vehicle's seat. The primary issue was whether the claim was barred by the three-year limitation period stipulated in section 151D of the *Workers Compensation Act 1987* (NSW).

The Court of Appeal was required to determine two key legal issues. Firstly, whether the injury sustained by the truck driver arose out of the "use or operation of the vehicle" for the purposes of section 151D. Secondly, the Court had to consider the definition of a "claim" within Part 5 of the *Motor Accidents Act 1988* (NSW) and whether it applied to the workers compensation claim, notwithstanding a more limited definition of "claim" in section 40(1) of the *Workers Compensation Act*.

The Court reasoned that the injury, while occurring over time due to the nature of the employment and the conditions of the vehicle, did not arise out of the "use or operation of the vehicle" in the manner contemplated by section 151D. Furthermore, the Court held that the definition of "claim" in Part 5 of the *Motor Accidents Act* was intended to encompass claims arising out of motor accidents, and this broader definition should apply even when considering a workers compensation claim under the *Workers Compensation Act*. The Court concluded that the opponent's claim was one relating to injury arising out of the nature and conditions of employment, rather than the direct use or operation of the vehicle.

Consequently, the appeal was dismissed with costs.