TOLL PTY LTD v DAKIC and ANOTHER [2006] NSWCA 58

New South Wales Court of Appeal

CITATION: TOLL PTY LTD v DAKIC and ANOTHER [2006] NSWCA 58

HEARING DATE(S): 25 November 2005

JUDGMENT DATE: 28 March 2006

JUDGMENT OF: Giles JA at 1; Santow JA at 18; Brownie AJA at 145

DECISION: (1) Appeal dismissed. ; (2) The appellant to pay respondents' costs. ; (3) Cross-appeal allowed. ; (4) Order in proceedings No. 107 of 2004 that the first defendant pay to the plaintiff the costs payable by him to the second defendant. ; (5) First cross-respondent pay the cross-appellant's costs and have a certificate under the Suitors' Fund Act if otherwise qualified.

CATCHWORDS: STATUTORY INTERPRETATION – Whether definition of "injury" covers vehicle-loading and unloading operations under the Motor Accidents Compensation Act 1919 (NSW) ("MACA"). - NEGLIGENCE - Whether compensation received as a result of a back injury suffered by employee removing heavy trailer ramp in confined space due to vehicle overhang after ramp had been used to load utilities onto a semi-trailer was governed by the statutory insurance scheme under MACA or by the statutory scheme under the Workers Compensation Act 1987 (NSW) – Whether injury caused by an unsafe system of work – Whether injury the result of and caused during the use or operation of a vehicle by a defect in that vehicle – Whether any defect in the vehicle in its use or operation – Discussion of causation. - PROCEDURE – Issue estoppel. - COSTS – Whether Bullock order should have been awarded

Motor Accidents Compensation Act 1999 s3 LEGISLATION CITED: Road Transport (General) Act 1999 Workers Compensation Act 1987 (NSW) s40

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26, (2005) 79 ALJR 1079 Almeida v Universal Dye Works (No. 2) [2001] NSWCA 156 AMP General Insurance Ltd v Mayne Nickless Ltd (2000) 50 NSWLR 61 Blair v Curran (1939) 62 CLR 464 Canterbury Municipal Council v Taylor (No. 2) [2002] NSWCA 96 Egri v DRG Australian Limited [1988] 19 NSWLR 600 Government Insurance Office of NSW v R J Green & Lloyd Pty Ltd (1966) 114 CLR 437, [1966] HCA 6 House v R (1936) 55 CLR 499 Insurance Commission (WA) v Container Handlers Pty Ltd (2004) 218 CLR 89, (2004) 78 ALJR 821 Kuligowski v Metrobus (2004) 208 ALR 1 CASES CITED: March v Stramare (E & M H) Pty Ltd [1990-91] 171 CLR 506 Mayne Nickless Ltd v Symen [2001] NSWCA 292, (2001) 34 MVR 18 Medlin v State Government Insurance Commission (1994-1995) 182 CLR 1 Ramsay v Pigram (1968) 118 CLR 271 Somodaj v Australian Iron and Steel Ltd (1963) 109 CLR 285 Sullivan v Moody (2001) 207 CLR 562 Sved v Council of Municipality of Woollahra (1998) NSW Conv R 55-842 Tambree v Travel Compensation Fund and Ors [2004] NSWCA 24 Travel Compensation Fund v Tambree t/as R Tambree and Associates (2006) 80 ALJR 183 Walsh v Whiteley (1888) 21 QBD 371 Zurich Australia Insurance Ltd v CSR Ltd (2001) 52 NSWLR 193, [2001] NSWCA 261