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Accidents during employment

Feature Articles

Cite as: (2003) 77(10) LIJ, p.36

In many circumstances, a straightforward claim for an injury suffered in the course of employment can be unexpectedly complicated by the presence of a motor vehicle.

By Robert Burdeu

The Accident Compensation Act (1985) (ACA) makes special provision for pursuing claims arising out of transport accidents during the course of employment. Consequently, it is essential to make early investigations as to whether a motor vehicle is involved or not, and whether the involvement of that vehicle constitutes a “transport accident”.

The ACA has overriding control of work accidents and claims, but ss134AA and 134AB make provision for circumstances where the accident was a “transport accident” as defined in the Transport Accident Act 1986 (TAA). Here the rights and obligations of injured workers are governed by the TAA.

Transport accidents

A “transport accident” is defined in s3 of the TAA as: “an incident directly caused by the driving of a motor car or motor vehicle, a railway train or tram”.

This section has undergone many changes over the years, basically to narrow the definition of a “transport accident”. The situation now, as defined by several leading cases, is whether there was a direct causal link between the driving of the vehicle and the injury.[1] It is also clear that the “transport accident” must be a discrete incident.[2]

The current definition of motor vehicle for this purpose is found in the Road Safety Act 1986 where it is defined as a vehicle “used or intended to be used on a highway”. That Act then defines highway as a “road or road related area” and road related includes “an area (not a road) that is open to or used by the public for driving riding or parking motor vehicles”.

Clearly, these definitions indicate a motor vehicle is far more than a registered car or truck. The fact of registration is not vital – it is the use to which the vehicle is put that is important.

Examples of vehicle workplace accidents may include those involving registered or unregistered cranes, tractors, golf buggies, forklifts etc., and a traffic collision during the course of employment or a claim for injury arising out of a poorly fitted tractor or bus seat.

Under TAA provisions, where a workplace accident involves a “transport accident”, access to compensation for common law damages must be made via the granting of a serious injury under s93 of the TAA. (Despite these provisions, however, applications in these circumstances for no fault compensation remains under the ACA.)

Injuries arising out of the use of a vehicle

In some instances, an injury will involve a vehicle but not fit into the definition of a “transport accident”. This may well be an injury developed over a period of time such as the injury referred to above regarding overuse of a poorly designed tractor or bus seat.

In these cases, the access to all compensation including common law damages is via the ACA

The black hole

The ACA s134A provisions cover accidents which occurred at work between 12 November 1997 and 20 October 1999. This section states that “a worker who is ... entitled to compensation in respect of an injury out of or ... in the course of employment on or after 12 November 1997 but before 20 October 1999, shall not ... recover damages of any kind”.

There is some discussion as to whether “transport accidents” at work during that period are able to be compensated under the TAA, but the preferred view seems to be that the reference to “worker” in s134A covers all workers injured during that period and who therefore “shall not recover damages of any kind”.

Procedures for “transport accidents” in the course of employment

No fault payments
Once a “transport accident” has been established, the claim for no fault benefits must still be made to the employer and payments will be made in accordance with normal WorkCover claim procedures. No claim need be made to the TAC as the claim on WorkCover will suffice.

Path to common law
If a “transport accident” occurs at work then a serious injury ruling must be granted under s93 of the TAA.

Request for impairment
The application for serious injury must be preceded by a claim for impairment under s47(7) of the TAA. This section states that the TAC may make a determination of a person’s degree of impairment for purposes of recovery of damages if the injury is stabilised or substantially stabilised. It is important that full details of the accident circumstances, claim and injury are provided in support of the impairment application. Up until the time of this request it is unlikely that the TAC has had any notice of the claim or injury and consequently it is the applicant’s responsibility to supply this information. The actual request is for an impairment determination but TAC will only assess whether it is over 30 per cent or not. The percentage beyond that determination is not necessary or relevant.

Request for serious injury
Should the TAC determine the impairment at less than 30 per cent, the appeal process is through VCAT. A review must be made to VCAT requesting a review of the determination under 30 per cent – it does not need to specify a percentage figure.

If the impairment is determined at 30 per cent then the gateway to common law is opened. If it is not determined at 30 per cent and a decision is made not to pursue a review of that decision at the Victorian Civil and Administrative Tribunal, then a request should be made to the TAC for a serious injury certificate under s93(2). It is important to supply as much material as possible at the time of request to ensure the TAC can properly consider the issue.

Appeal process – originating motion
In the event that TAC rejects the request for serious injury then the avenue for appeal is to the County Court via an originating motion.[3] Note the 2002 County Court practice note cl 12C which states that “the correct procedure (for applications by motion) should be for the plaintiff to name as defendant each person against whom the plaintiff claims to have a cause of action if leave is granted”.

Once a serious injury is granted, proceedings need to be issued in the County or Supreme Court for damages. The matter is then governed by the provisions of the TAA, meaning that the early settlement procedures under the ACA are not relevant. The writ should be issued against all negligent parties, which will often mean both the employer and vehicle driver being named defendants.

In addition, payments of compensation will cease at the time of settlement of the damages claim. This means the plaintiff will continue to deal with both the VWA and the TAC during the course of the damages claim.

Statute of limitations
Time limits for common law claims are complicated by the requirements for provision of serious injury certificates and impairment determinations, and care should be taken with the six-year time limit. It is strongly advisable to have the process completed within six years from the date of the accident and have the damages writ issued. This will prevent any time difficulties, but if delays are unavoidable it is essential to request TAC to grant a waiver of the time limit before the six years expiring. The waiver should set out a timetable for issuing proceedings within a certain period of the serious injury determination.

Commonwealth employees
The situation for commonwealth employees is slightly different. The Safety, Rehabilitation and Compensation Act 1988 (SRCA) covers commonwealth employees and is administered by an authorised insurer (the insurer) in much the same way as the TAC administers the Victorian legislation. Although the SRCA governs commonwealth employee transport accidents during the course of employment in Victoria in a similar manner to the TAA, there are several important procedural differences.

In circumstances where a commonwealth employee is injured during the course of employment in a “transport accident” in Victoria, some specific issues to note are:

  • the appropriate claim form must be completed with the relevant insurer;
  • in common law claims, injured workers must access (the determination of) serious injury via the provisions of s93 of the TAA;
  • if a common law claim is successful, then the insurer will need to be repaid all benefits paid to or on behalf of the worker;
  • an anomaly occurs when repayments for loss of earnings are calculated as the TAC argues that it is not obliged under the provisions of the TAA to repay any compensation paid within the first 18 months after the accident.[4] This usually complicates negotiations between the plaintiff and the TAC during the common law proceedings; and
  • under the provisions of the SRCA, commonwealth employees are prevented from claiming medical expenses in the future after their common law claim has settled. As a result, estimated future expenses must be included in the common law claim.[5] The courts have established that the provisions of s93(10) of the TAA do not apply to these claims and therefore damages awarded to commonwealth employees will include an allowance for future medical and associated expenses.[6] This is in contrast to the Victorian legislation where rights to ongoing medical and associated expenses survive after common law settlement.

It is possible for the insurer to institute its own proceedings to pursue recovery of amounts paid.[7] In these situations, the employee must cooperate and the insurer has the right to settle damages on behalf of the employee. Obviously, any damages recovered will be paid to the employee less any statutory benefits. It is possible under these circumstances for the damages claim to be settled and for the employee to retain the right to ongoing medical and associated expenses.

ROBERT BURDEU is a senior legal counsel manager at TAC Law. Before joining TAC Law in 1998 he was a partner at Wisewoulds, practising in personal injuries. He is an accredited personal injury specialist.

[1] Jewell v TAC (1994) VR 1 300; Damasoliotis v TAC (unreported, AAT, 29 January 1997); Kilpatrick v TAC (unreported, VCAT, 6 December 2000); TAC v Iacone (1998) 28 MVR 505.

[2] Porter v Bonojoro Pty Ltd VSC 265

[3] Section 93(4) of the TAA.

[4] Section 93(11) of the TAA.

[5] Section 48 of the SRCA.

[6] Edwards v Jepson (1999) 1 VR 197.

[7] Section 50 of the SRCA.


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