Motor Accident Commission v Ani Corp Ltd & Richard John Garrett No. Scgrg-97-325 Judgment No. 6416 Number of Pages 26 Insurance

Motor Accident Commission v Ani Corp Ltd & Richard John Garrett No. Scgrg-97-325 Judgment No. 6416 Number of Pages 26 Insurance

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COX, LANDER AND BLEBY JJ Judgment Date: 27 November 1997 Judgment Delivered: 27 November 1997 Counsel: Appellant: Counsel: Mr M G Steele Solicitors: Ward & Partners Respondent A.N.I. Corporation Ltd: Counsel: Mr S Walsh QC Solicitors: Piper Alderman Respondent: Counsel: Mr R C Halliday Solicitors: Andersons ORDER: appeal allowed.

The plaintiff was a manual worker in the employment of the ANI Corporation Limited when on 12 November 1990 he was injured in an accident at work. He fell from the back of a stationary semi-trailer motor lorry while acting as an assistant to a forklift driver whose task it was to move a quantity of steel frames, called stillages, from a stack in the employer's depot and load them onto the tray of the semi-trailer, a short distance away. The plaintiff sued the employer for common law damages for the injuries he suffered in the accident. He said that the accident was caused by the negligence or breach of contract or breach of duty of the employer or its servants including the forklift driver, one Hughes. The Motor Accident Commission had written a compulsory third party motor vehicle policy for the forklift that conformed with Schedule 4 of the Motor Vehicles Act 1959 and the employer issued third party proceedings against the insurer claiming indemnity with respect to any liability it might have to meet the plaintiff's claim. The District Court Judge decided to try first the issue of liability as between the plaintiff and the employer. The insurer took part in those proceedings. The learned Judge heard the evidence and held that Hughes was negligent in the manner in which he carried out his duties and that the employer's work practice was unsafe. He rejected the employer's plea of contributory negligence. He thereupon entered judgment for the plaintiff against the employer for the whole of his damages to be assessed. Subsequently the learned Judge tried the third party claim. The parties did not call any additional evidence. They relied on the evidence that was called in the first trial. There was a dispute as to the precise activity in which the forklift driver was engaged when the accident happened. That was an important matter because it was the insurer's case that Hughes was not driving the forklift at the time but using it simply to load the semi-trailer, so that the injury to the plaintiff was not covered by the compulsory insurance provisions of the Motor Vehicles Act. The learned Judge considered that the evidence did not enable him to make a finding on the factual issue. He held that it was for the insurer to satisfy the Court that the plaintiff's injury was not a consequence of the driving of the forklift and it had failed to discharge the onus it bore. He therefore found that the employer was entitled to be indemnified by the insurer against the plaintiff's damages. He proceeded to assess those damages at common law subject only to the restrictions imposed by s36a of the Wrongs Act 1936. He assessed them at $253 092. He entered judgment for the plaintiff in that sum against the employer, with costs, and made an order that the employer be indemnified by the insurer against its liability in damages and costs to the plaintiff. He gave the employer its costs against the insurer. The insurer has appealed to this Court. It claims that the learned Judge should have found that the plaintiff's accident did not fall within the third party insurance provisions of the Motor Vehicles Act so that the employer was not entitled to an indemnity. If that is right, the plaintiff's damages should have been assessed in accordance with s54 of the WorkersRehabilitation and Compensation Act 1986. The employer, however, has not appealed. The plaintiff had cross-appealed on the ground that the damages assessed by the learned Judge were inadequate.

The appeal was allowed. The Court found that the plaintiff's injuries were a consequence of the driving of the forklift and that the employer was entitled to be indemnified by the insurer against the plaintiff's damages. The plaintiff's cross-appeal was to be heard on further submissions depending on what course the employer may now seek to follow.