This New South Wales Court of Appeal decision considers whether Victorian law governs motor accident claims which relate to injuries suffered in NSW for which compensation is payable under the Victorian workers compensation scheme.

In Issue

  • Whether Victorian law governs motor accident claims which relate to injuries suffered in NSW for which compensation is payable under the Victorian workers compensation scheme

The Background

The appellant, Mr Yarham, was a Victorian resident employed by a Victorian based company (Detour). He was injured in a motor vehicle accident in New South Wales as a passenger in a truck driven by a co-employee (Mr Benson) and owned by Detour. Following the accident, Mr Yarham received statutory no-fault workers’ compensation payments from Detour’s workers’ compensation insurer pursuant to the Accident Compensation Act 1985 (Vic) (AC Act). Mr Yarham also sought to commence a personal injury claim against the Transport Accident Commission of Victoria (TAC), the compulsory third party insurer of Detour’s truck, under the Motor Accidents Compensation Act 1999 (NSW) (MAC Act).

The Decision at Trial

The TAC considered the MAC Act did not apply and sought a determination from the NSW Claims Assessment and Resolution Service (CARS) that the claim was exempt from the CARS system on the grounds that the issue as to the applicable law was complex. The CARS assessor dismissed the TAC’s application for exemption. The TAC appealed the assessor’s decision. In the first instance, the trial judge set aside the assessor’s decision and declared that Victorian law was the governing law for Mr Yarham’s claim. Mr Yarham appealed this decision.

The Issues on Appeal

The primary issue was whether Victorian law governs motor accident claims which relate to injuries suffered in NSW for which compensation is payable under the Victorian workers compensation scheme. This required consideration of the construction and effect of s 150A of the Workers Compensation Act 1987 (NSW) (WC Act), which provides that if compensation is payable under a statutory workers’ compensation scheme of a State in respect of an injury to a worker, the substantive law of that State is the substantive law that governs whether or not a claim for damages can be made and, if it can be made, the determination of the claim. Under s 150B of the WC Act, s150A only applies to a claim for damages against a worker’s employer in certain circumstances. The secondary issue was whether the CARS Assessor exceeded his jurisdiction in resolving the substantive question as to the law to be applied to a claim by Mr Yarham.

The Decision on Appeal

The Court of Appeal noted that a distinction must be drawn between a claim made against Detour in its capacity as the owner of the truck (in which capacity it is vicariously liable for the negligence of Mr Benson by reason of the motor accident legislation), on the one hand, and a claim made against Detour in its capacity as Mr Yarham’s employer, on the other. It was held that s 150A of the WC Act would only apply to a claim against Detour in the latter capacity. Further, it was held that the CARS Assessor’s decision should not be quashed on the basis that prerogative relief is discretionary.

The appeal was allowed and a declaration made that the claim made by Mr Yarham against the owner of the motor vehicle in which he was injured as a result of the alleged negligence of the driver of that vehicle pursuant to s 112 of the MAC Act is governed by the law of New South Wales.

Implications for you

This decision provides guidance as to complexities which may arise on the issue of choice of law in motor vehicle accidents whereby compensation may be payable under multiple statues in various states.

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