On 15 March 2016, Elkaim SC DCJ in State of New South Wales v Wenham [2016] NSWDC 25, found that a party who seeks to rely on the indemnity provisions provided under section 151Z of the Workers Compensation Act 1987 (NSW) cannot rely upon the blameless accident provisions contained in Chapter 1, Part 1.2 of the Motor Accidents Compensation Act 1999 (NSW).

In this case, Mrs Goddard was injured in motor vehicle accident that occurred when her vehicle was struck by a wheel assembly which somehow became disconnected from the B-Double truck she was driving behind. Mrs Goddard bought a claim for workers compensation and was paid such benefits in accordance with the legislative requirements by her employer through its workers compensation insurer.

Mrs Goddard’s employer sought to recover the workers compensation payments made to her and issued proceedings against the owner and the driver of the B-double truck.

Mrs Goddard’s employer contended firstly that the accident was caused by the negligence of the driver and the owner of the truck, and in the alternative, pleaded that the accident was a blameless accident as defined by section 7A of the Motor Accidents Compensation Act 1999 (NSW).

The owner and driver of the truck argued that the blameless accident provisions were to provide a benefit to victims of blameless accidents only and could not be applied for the benefit of other persons, such as those seeking an indemnity. They argued that by its very definition, a blameless accident involves no wrongdoing and accordingly the gateway for Section 151Z as expressed in subsection (1) does not exist.

His Honour succinctly summarised his views on the matter as follows:

The cause of action relied upon by the plaintiff is provided by section 151Z. That cause of action requires there to be a wrongdoer. The deeming provision concerning fault in section 7B of the MACA is a deeming provision only for the purposes of a claim for damages. It is there to assist the victim of a blameless accident. It does not extend, absent specific reference, to the cause of action provided by section 151Z

This decision confirms the longstanding history of claims for indemnity under 151Z of the Workers Compensation Act 1987 that for indemnity to be available, there must be a negligent third party tortfeasor, other than the employer, responsible for the injuries of the worker.