Yarham v Transport Accident Commission of Victoria & Ors [2017] NSWCA 301

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Yarham v Transport Accident Commission of Victoria & Ors [2017] NSWCA 301 Hearing dates: 11 August 2017;Written submissions 25 August 2017 and 13 September 2017 Date of orders: 07 December 2017 Decision date: 07 December 2017 Before: Meagher JA at [1]; White JA at [11]; Emmett AJA at [146] Decision: 1. Appeal allowed.

2. Set aside the declarations and orders made by Hall J on 13 December 2016.

3. In their place, declare that a claim made by the appellant against the owner of the motor vehicle in which the appellant was injured as a result of the alleged negligence of the driver of that vehicle pursuant to s 112 of the Motor Accidents Compensation Act 1999 (NSW) is governed by the law of New South Wales and the Motor Accidents Compensation Act 1999 (NSW) applies to it.

4. Order that the first respondent pay the appellant's costs of the proceedings below and of the appeal. Catchwords: WORKERS' COMPENSATION – motor vehicle accident – injuries out of jurisdiction – where employee and employer based in Victoria and injury and alleged negligence occurred in New South Wales – whether primary judge erred by finding that the substantive law of Victoria applies to a claim for damages – workers compensation legislation to be construed within context of statutory regime and legislative history – whether choice of law provisions apply only to a claim made against an employer in its capacity as employer of claimant, including its vicarious liability for the torts of a co-employee – whether choice of law provisions apply also to claim against employer as owner of vehicle pursuant to the statutory agency under s 112 of the Motor Accidents Compensation Act 1999 (NSW) – whether choice of law provisions apply to a claim made against negligent driver