White v McPhee Transport Pty Ltd [2006] NSWDC 199

New South Wales District Court

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

Foufoulas v F G Strang Pty Ltd 123 CLR 168 at 172 CASES CITED: 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.