State of NSW v Wenham [2016] NSWCA 336

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of NSW v Wenham [2016] NSWCA 336 Hearing dates: 5 October 2016 Date of orders: 05 December 2016 Decision date: 05 December 2016 Before: Beazley A/CJ at [1]; Meagher JA at [2]; Payne JA at [18] Decision: (1) Application for leave to appeal granted.

(2) Notice of Appeal in the form at White Book 20 to be filed within seven days.

(3) Appeal allowed.

(4) The respondents to pay the appellant's costs as agreed or assessed in this Court.

(5) Set aside orders of Elkaim DCJ made 15 March 2016 and instead order:

(a) The question of whether the employer was entitled, in an action under s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW), to rely upon the "blameless motor accident" provisions of the Motor Accidents Compensation Act 1999 (NSW) (Part 1.2, Div 1) should be answered – "Yes".

(b) The respondents to pay the appellant's costs as agreed or assessed in the District Court. Catchwords: WORKERS COMPENSATION – worker employed by appellant – worker injured in motor accident – accident caused by truck driven and owned by respondents – respondents conceded motor accident was a "blameless motor accident" under s 7A of the Motor Accidents Compensation Act 1999 (NSW) – s 7B deems fault in blameless motor accident – worker recovered worker's compensation payments from appellant – appellant sought indemnity from respondents under s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) – s 151Z(1)(d) requires "injury ... caused under circumstances creating a liability in some person other than the worker's employer" – whether appellant entitled, in an action under s 151Z(1)(d), to rely upon the "blameless motor accident" provisions of the Motor Accidents Compensation Act Legislation Cited: Competition and Consumer Act 2010 (Cth), Pt VIB Motor Accidents Compensation Act 1999 (NSW), Pt 1.2 Div 1, ss 3, 3A, 3B, 7A, 7B, 122 Workers Compensation Act 1987 (NSW), Pt 5 Div 3, s 151Z Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 Commissioner of Taxation v Consolidated Media Holding Ltd (2012) 250 CLR 503; [2012] HCA 55 CSR Timber Products v Weathertex Pty Ltd (2013) 83 NSWLR 433; [2013] NSWCA 49 Franklins Self Serve Pty Ltd v Wyber (1999) 48 NSWLR 249; [1999] NSWCA 390 Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council (2009) 230 FLR 336; [2009] NSWCA 59 Manser v Spry (1994) 181 CLR 428 Page v Burtwell [1908] 2 KB 758 Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321 Workers Compensation Nominal Insurer v Nominal Defendant [2013] NSWCA 301 Category: Principal judgment Parties: State of NSW (NSW Police) (applicant) Timothy Paul Wenham (first respondent) Phillip Whittman (second respondent) Representation: Counsel: R Sheldon SC / D Hanna (applicant) P Deakin QC / J Gracie (respondent)