It may seem very technical but the amount of compensation you receive could be drastically different if your accident involves a forklift or other ‘vehicle’ at work. Partner and Law Society Accredited Specialist in Personal Injury Law, Jeremy Roche discusses this issue.
An Attwood Marshall Lawyers client sustained injuries at work on the 26th July 2012 whilst working at a nursery near Lismore. Our client was assisting her boss moving a pallet off the tines off a forklift (the forklift was being reversed at the same time by her boss). In the course of that activity our client’s neck and shoulders were wrenched by the force of the forklift reversing and from a pallet which had jammed on top of another pallet on the forklift. Our client immediately felt severe pain in her neck and shoulders.
Our client underwent a series of investigations and treatments which ultimately culminated in her undergoing a C4/C5 total disc replacement and C5/C6 and C6/C7 fusions (i.e. discs in her cervical spine or neck). The injury had a devastating impact on our client’s work and rendered her permanently unfit for the career that she had chosen in horticulture. As a result of the physical injury our client also suffered from reactive depression as well as debilitating pain in the post operative recovery phase.
One of the key issues in the case was whether the accident at work could be categorised as a normal ‘work injury’ or as a ‘motor vehicle accident’ considering the accident involved a motorised vehicle which was moving at the time of the injury. In Eptec Pty Ltd v Alaee [2014] NSWCA 390 the New South Wales Court of Appeal found that if the wheels of a motorised vehicle are not in locomotion at the time when the injury occurred, then the matter cannot be categorised as a ‘motor vehicle accident’ work injury under Section 3A and 3B of the Motor Accidents Compensation Act 1999. The decision was influenced by an earlier decision of RG & KM Whitehead Pty Ltd v Lowe [2013] NSWCA 117.
Accordingly, it was of major importance in the case that the forklift was ‘reversing’ or moving at the time when our client’s injury occurred. If the wheels of the forklift had not been in motion, then the case would be restricted to statutory compensation payments under the NSW Act and possibly a claim for work injury damages under the Workers Compensation Act 1987. A claim under the Motor Accidents Compensation Act 1999 is of greater assistance to workers (including our client) given that that Act involves a number of heads of damages which are not payable under the modified common law damages under the Workers Compensation Act 1987. This is crucial in NSW because of the huge difference in the entitlements which can amount to hundreds of thousands of dollars!
The only damages payable under the Workers Compensation Act in common law actions are for past and future economic loss and past and future superannuation loss. The damages payable under the Motor Accidents Compensation Act, subject to certain thresholds, include general damages for pain and suffering, past and future out of pocket expenses, past and future wage loss, past and future superannuation loss, past and future domestic care.
It is therefore of great importance to injured workers when making a claim for compensation at work that detailed instructions are taken as to whether or not the wheels of the particular vehicle were in motion at the time the injury occurred. This can make an huge difference to the amount of compensation payable in the case. Our client received the benefits of statutory payments through the NSW worker’s compensation system, including payments for the surgery and then went on to prosecute the claim for damages under the Motor Accidents Compensation Act, which in this case were significant compared to what she may have recovered under Workers Compensation.
If you require any further information about Compensation Claims please do not hesitate to contact Department Manager Kelli Costin on direct line 07 5506 8220, Freecall 1800 621 071 or email: kcostin@attwoodmarshall.com.au for a free initial consultation and discuss our ‘no win no fee’ service. We have a dedicated team of Brisbane personal injury lawyers who specialise in this area of law and practice exclusively in personal injury claims.
