Yarham v Transport Accident Commission of Victoria

The appeal before the Court of Appeal of Victoria concerned a dispute between the appellant, Mr Yarham, and the Transport Accident Commission of Victoria (TAC). Mr Yarham suffered injuries in a motor vehicle accident that occurred in New South Wales. He was an employee of a company based in Victoria, and his employer was also based in Victoria. The alleged negligence causing the accident was that of the driver of the vehicle in which Mr Yarham was a passenger. The central issue was whether Victorian or New South Wales law governed Mr Yarham's claim for damages arising from these injuries.

The court was required to determine several legal issues. Firstly, it had to consider whether the primary judge erred in finding that the substantive law of Victoria applied to Mr Yarham's claim for damages. This involved an examination of the relevant choice of law provisions within the workers' compensation legislation. Specifically, the court needed to ascertain whether these provisions applied only to claims made against an employer in their capacity as an employer, including vicarious liability for a co-employee's torts, or if they extended to claims made against an employer as the owner of a vehicle under a statutory agency provision, such as section 112 of the *Motor Accidents Compensation Act 1999* (NSW). The court also had to consider whether these choice of law provisions applied to a claim made against the negligent driver.

The Court of Appeal reasoned that the workers' compensation legislation should be construed within its broader statutory context and legislative history. It found that the definition of "claim" in section 4 of the *Workplace Injury Management and Workers Compensation Act 1998* (NSW) did not create an inconsistency with Division 1A in Part 5 of the *Workers Compensation Act 1987* (NSW). The court determined that the phrase "claim for damages" should be given its literal meaning, and a common law claim for motor vehicle damages falls within this description. Crucially, the court held that the choice of law provisions did not exclusively apply to claims against an employer in their capacity as employer. Instead, the court concluded that a claim made against the owner of the motor vehicle pursuant to section 112 of the *Motor Accidents Compensation Act 1999* (NSW) is governed by the law of New South Wales.

Consequently, the Court of Appeal allowed the appeal, setting aside the declarations and orders made by the primary judge. The court declared that Mr Yarham's claim against the owner of the motor vehicle, made under section 112 of the *Motor Accidents Compensation Act 1999* (NSW), is governed by the law of New South Wales and that the said Act applies to it. The court also ordered that the first respondent pay Mr Yarham's costs of the proceedings below and of the appeal.