When isn't a person driving? - Damages for a workplace injury
In the recent case of RG & KM Whitehead Pty Limited v Lowe  NSWCA 117, the NSW Court of Appeal considered whether damages were payable relating to a workplace injury pursuant to the Motor Accidents Compensation Act 1999.
Mr Lowe (“the worker”) was employed as a labourer by RG & KM Whitehead Pty Limited (“the employer”).
On 6 December 2007, the worker, the employer and other labourers were operating a wood chipping machine. A 500kg metal chute had become detached from the wood chipping machine. The injury occurred while the metal chute was being reattached to the wood chipping machine. The employer was operating a front end loader, which was unregistered and uninsured, to reattach the chute. When the employer was unable to completely reattach the chute to the wood chipping machine, he instructed the worker to climb onto the wood chipping machine and hammer the chute into place. As the worker was hammering the chute, which was still attached to the front end loader, it swung back and struck him, causing him to fall and sustain injury.
The worker claimed damages under the Motor Accidents Compensation Act 1999 as his injuries were not serious enough to bring a work injury damages claim. To recover damages under the Motor Accidents Compensation Act 1999, the worker had to prove his injuries were sustained as a result of “the fault of the owner or driver of a motor vehicle in the use or operation of a vehicle.” The worker claimed the employer was driving the font end loader at the time of injury.
The employer argued the worker had no entitlement to recover damages under the Motor Accidents Compensation Act 1999. The employer denied it was driving the front end loader at the time of the injury. It claimed the front end loader was stationary, out of gear and the hand brake and hydraulic devices were engaged. The employer said the fact the chute was still attached to part of the front end loader by chains was irrelevant.
In March 2012, Judge Christopher Robison of the District Court of NSW found in favour of the worker and awarded him $386,400 in damages. That was on the basis the worker suffered an injury covered by the Motor Accidents Compensation Act 1999. The employer appealed.
Court of Appeal Decision
In a unanimous decision, Justices Barrett, Tobias and Preston quashed the District Court decision.
Despite finding the employer was negligent and at fault in instructing the worker to climb onto the chipper, the Court said the real issue was whether the injury was a result of, and was caused by, the driving of the front end loader.
In reversing the decision of Judge Robison, the Court of Appeal considered numerous cases including a Queensland Supreme Court decision of Suncorp Metway Insurance Limited v Sichter  QSC 164 which found there was a clear distinction between operating a garbage truck's mechanical lifting device and actually controlling and managing a vehicle while it was moving.
In this case, the Court found the employer was not “driving” at the time of the injury because the loader was stationary. The fact some parts of the loader’s structure, unrelated to its driving functions, were deployed to assist to manoeuvre the chute into place, was irrelevant. As such, the injury could not be classed as a motor vehicle accident.
What does this mean?
This decision of the NSW Court of Appeal further defines what constitutes driving of a motor vehicle. The decision means there is a clear distinction between operating devices on a vehicle which is stationary and managing a vehicle while it is moving.
The decision means the injury suffered by the worker was a work injury and not a motor vehicle accident. As such, on the facts of this case, the worker failed in his claim for damages.