White v McPhee Transport Pty Ltd

CITATION:	White v McPhee Transport Pty Ltd [2006] NSWDC 199
HEARING DATE(S):	27, 28 September and 25, 26 October 2006
JUDGMENT DATE:	15 November 2006
JURISDICTION:	District Court
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	Judgment for the plaintiff for $662,090.37; Defendant to pay the plaintiff's costs
CATCHWORDS:	Negligence - employee injured at work in an accident involving an unregistered forklift - whether the injuries were a result of and caused during the driving of a motor vehicle - whether the award of damages was governed by the Workers Compensation Act 1987 or by the Motor Accidents Compensation Act 1999.
LEGISLATION CITED:	Motor Accidents Compensation Act 1999: s 3, s 122(1), s 128(3) and s 131 Workers Compensation Act 1987: s 151G
CASES CITED:	Foufoulas v F G Strang Pty Ltd 123 CLR 168 at 172 O’Connor v Commissioner for Government Transport 100 CLR 225 Smith v BHP 97 CLR 337 at 342
PARTIES:	Michael Thomas White (Plaintiff) McPhee Transport Pty Ltd (Defendant)
FILE NUMBER(S):	4820/05
COUNSEL:	Mr S Hickey (Plaintiff) Mr C Egan (Defendant)
SOLICITORS:	Evan Kontoulas & Associates (Plaintiff) Abbott Tout (Defendant)

JUDGMENT

Introduction

1. Mr White was injured at work on 6 August 2002. At the time he was in the back of a semi-trailer, levering a stillage loaded with rolls of material, when the rolls came off the stillage and rolled onto him, crushing him against the floor and wall and other freight in the semi-trailer.

2. It was alleged that the rolls of material were tipped off the stillage onto Mr White by a forklift located at the rear of the semi-trailer, operated by Mr Armstrong Sinni, a fellow employee, when suddenly and without warning, he engaged the stillage with the tynes of the forklift, raising the outer side of the stillage.

3. Mr White alleged that his injuries were caused by the negligence of Mr Sinni, for which his employer, McPhee Transport, is liable (either vicariously as employer, or as statutory principal and owner of the forklift); and by the direct negligence of the employer, in failing to provide safe equipment, a safe place, and a safe system of work. The employer denied liability and alleged contributory negligence by Mr White.

4. The issues for determination as to liability are:

· Was Mr Sinni negligent?

· Was the employer, McPhee Transport, negligent?

· Was Mr White guilty of contributory negligence, and if so, to what extent?

5. The employer also alleged that Mr White’s injuries were not a result of and caused during the driving of its forklift, an unregistered motor vehicle, as required by the Motor Accidents Compensation Act 1999, so that any award of damages is not governed by that Act, but by the Workers Compensation Act 1987: s 122(1) of the Motor Accidents Compensation Act 1999.

6. In the event that the award of damages is governed by the Workers Compensation Act 1987, and not the Motor Accidents Compensation Act 1999, the damages are limited…