GLG Australia Pty. Ltd. v. The Nominal Defendant & Ors. [2004] NSWCA 166

New South Wales Court of Appeal

CITATION : GLG Australia Pty. Ltd. v. The Nominal Defendant & Ors. [2004] NSWCA 166 HEARING DATE(S) : 8 April 2004 JUDGMENT DATE : 1 June 2004

JUDGMENT OF : Hodgson JA at 1; Tobias JA at 59; McColl JA at 60 DECISION : Appeal allowed. Parties to bring in Short Minutes of Order.

CATCHWORDS : TORTS - NEGLIGENCE - Motor accidents legislation - Workplace injury involving forklift truck - Whether injury within motor accidents legislation - Whether caused by the fault of the owner - Whether result of and caused during the driving of the vehicle - Whether motor accident insurer liable. LEGISLATION CITED : Motor Accidents Act 1988 s.3, 47A. GLG Australia Pty. Ltd. - appellant PARTIES : The Nominal Defendant - first respondent Salim Fahd Tleyji - second respondent Ready Workforce Pty. Limited - third respondent FILE NUMBER(S) : CA 40446/03 Mr. J. Maconachie QC with Mr. N. Polin for appellant COUNSEL : Mr. P. Deakin QC with Mr. P. Nolan for the first respondent Mr. P. Neil SC for the second respondent SOLICITORS :

LOWER COURT District Court JURISDICTION : LOWER COURT DC 788/01 FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40446/03 DC 788/01

HODGSON JA TOBIAS JA McCOLL JA

Tuesday 1 June 2004 GLG AUSTRALIA PTY. LTD. V. NOMINAL DEFENDANT & ORS. Judgment 1 HODGSON JA: On 24 August 1999, the second respondent (the plaintiff) suffered an injury at the premises of the appellant (GLG). At the time, the plaintiff was employed by the third respondent (Ready Workforce), a labour hire organisation. The plaintiff sued Ready Workforce and GLG in the District Court, claiming damages for personal injury. In his Statement of Claim, the plaintiff alleged inter alia that the injury was caused by the negligence of GLG in connection with the operation of a forklift truck, which it owned and which was driven by GLG's employee. In its Defence, GLG alleged, inter alia, that the plaintiff's damages should be assessed in accordance with the Motor Accidents Act 1988. 2 Each defendant put on a cross-claim against the other, claiming contribution or indemnity. On the first day of the hearing before Delaney DCJ in the District Court, the first respondent (the Nominal Defendant) applied pursuant to s.47A of the Motor Accidents Act 1988 to be joined as a party to the proceedings, as being in the position of the insurer of the forklift truck, in order to argue that it had no obligation under the relevant insurance policy to indemnify GLG; and the primary judge made an order to that effect. 3 On 2 May 2003, the primary judge disposed of the proceedings by making orders to the following effect: verdict and judgment for the plaintiff against Ready Workforce in the sum of $72,541.98; verdict and judgment for the plaintiff against GLG in the sum of $264,740.69; that GLG was not entitled to indemnity from the Nominal Defendant; Ready Workforce and GLG to pay the plaintiff's costs; GLG to pay the Nominal Defendant's costs; and cross-claims dismissed. 4 GLG appealed from the orders made against it, claiming that the judgment for the plaintiff should be such sum as assessed under the Motor Accidents Act 1988, and that it should have indemnity from the Nominal Defendant.