State of NSW v Wenham

The appeal concerned a dispute between the State of New South Wales (the appellant) and Wenham (the respondents) regarding the recovery of workers' compensation payments. The appellant, an employer, had made payments to a worker who was injured in a motor accident. The accident was caused by a truck driven and owned by the respondents, and it was conceded to be a "blameless motor accident" under section 7A of the *Motor Accidents Compensation Act 1999* (NSW). This Act deems fault in such accidents under section 7B. The appellant sought indemnity from the respondents under section 151Z(1)(d) of the *Workers Compensation Act 1987* (NSW), which requires the injury to have been caused under circumstances creating a liability in a person other than the employer. The central question was whether the appellant could rely on the "blameless motor accident" provisions of the *Motor Accidents Compensation Act* to establish this liability.

The legal issue before the Court of Appeal was whether the appellant, as the employer who had paid workers' compensation, was entitled to seek indemnity from the respondents under section 151Z(1)(d) of the *Workers Compensation Act 1987* (NSW) by relying on the deeming provisions of section 7B of the *Motor Accidents Compensation Act 1999* (NSW) in circumstances of a "blameless motor accident".

The Court of Appeal reasoned that section 151Z(1)(d) of the *Workers Compensation Act 1987* (NSW) requires that the injury be caused under circumstances creating a liability in some person other than the employer. It held that the deeming provisions of section 7B of the *Motor Accidents Compensation Act 1999* (NSW) were sufficient to create such a liability in the context of a blameless motor accident, even though no actual fault was established. Therefore, the appellant was entitled to rely on these provisions to establish the necessary liability for the purposes of its indemnity claim. The Court allowed the appeal, set aside the orders of the District Court, and declared that the employer was entitled to rely on the blameless motor accident provisions. The respondents were ordered to pay the appellant's costs in both the Court of Appeal and the District Court.