Transport accidents while working – is it a WorkCover or TAC claim?

There are circumstances where an injury occurred in both a workplace accident and a transport accident; for example, a truck driver injured in a motor vehicle accident while delivering products to a consumer. These are what we call “cross-over” claims. The question for the injured person (who is both a worker and road user) is, “Under which statutory scheme do I make a claim – WorkCover or TAC?”

If you suffer an injury or illness that arises out of the course of your employment, you may be entitled to claim compensation and benefits through a WorkCover claim. There are also benefits available to dependants of a worker who dies as a result of a workplace accident.

If you’re injured in a road accident in Victoria (including drivers, passengers, pillions and pedestrians), you may be entitled to compensation and benefits through a TAC claim. The accident must have involved the driving a car, motorbike, bus, train or tram. There are also benefits available for dependants of a person who dies as a result of a transport accident.

If you’re injured in a transport accident while working, there are some limited circumstances where you may be eligible for WorkCover benefits and a TAC common law claim.

Generally, if your claim is accepted, WorkCover will cover:

• your medical expenses;
• weekly payments for loss of wages; and
• a lump sum impairment benefit if you suffer a permanent impairment.

If you suffer a serious injury in the road accident, you may also be eligible to sue for common law damages under the TAC scheme.

These dual insurance claims can be complicated. It’s vital you seek legal advice from a lawyer experienced in both worker’s compensation and transport accident claims.

In order to illustrate what the courts will consider in a case where there is dispute as to which statutory scheme applies (WorkCover or TAC), we’ve undertaken a case review in the matter of Foursquare Constructions Management v VWA [2022] VSCA 237 (“Foursquare”).

A case was brought on in the County Court of Victoria by the Victorian WorkCover Authority (“VWA”), seeking recovery for compensation it had paid to a worker, from the occupier of the premises where the injury occurred. The occupier of the premises was Foursquare.

The VWA submitted that it was entitled to this recovery as the injury occurred in the course of the worker’s employment in accordance with the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“WIRC Act”).

Foursquare disagreed and appealed the decision at first instance. Foursquare submitted that they are not obligated to pay recovery payments to VWA on the ground that the injury was not a worker’s compensation matter but rather, was as a result of a transport accident within the meaning of section 3 of the Transport Accident Act 1986 (Vic) (“TA Act”).

Spoiler alert! The VWA succeeded at first instance and on appeal.

The injured worker, Brenden MacDonald, was injured on 25 April 2016 when he was delivering a waste bin to the Peninsula Homemaker Centre in Mornington, which was managed by Foursquare.

Mr MacDonald attended the site to drop off the bin.

When he arrived at the site, he was directed to place the bin near a building. There were building materials on the ground near the drop off point, including steel mesh, which affected his ability to access that part of the building he was directed to.

In his evidence, Mr MacDonald indicated that he was required to exit his truck to check that he was placing the bin in the right position. As he was leaving his truck to check where he was placing the bin, he tripped on the steel mesh. He indicated that when he left the truck, he left the engine running so that the truck hydraulics can continue to operate, which are required to lower the bin.

After exiting his truck and walking towards the back of the truck, his foot was caught in the steel mesh, and he injured his right foot as a result of the incident.

Mr MacDonald lodged a WorkCover claim which was accepted.

Foursquare argued that this was a transport accident because the cause of his injury was as a result of the stopping of the truck on or adjacent to the mesh, which was “inextricably linked with the driving process.” They argued that it was not a safe place for the truck to stop and the fact that the engine was still on is associated with the driving process and thus it is a transport accident.

The VWA submitted that it did not matter how the driver parked the truck nor how he went about completing the delivery of the bin. The question is one of fact, and the fact that he sustained his injury from falling as a result of the mesh on the ground and not directly caused by the driving of his truck, then ultimately it is not a transport accident.

The court, at first instance (citation [2021] VCC 2080,) referred to the cases of Insurance Commission of Western Australia v Container Handlers Pty Ltd & Ors (2004) 218 CLR 89 (“Containers”) and Zengin v Insurance Commission of Western Australia [2020] VSC 237 (“Zengin”).

The court relied on Justice Moore’s summary in Zengin in relation to the question as to whether it was a transport accident or not.

The court noted the following should be considered in making this determination:

• Whether the injury was a consequence of the operation, control of the direction and speed of the vehicle.
• Whether the injury was directly caused by the actual control and management of the vehicle whilst it was in locomotion.
• Whether the injury was directly caused by the operation of the vehicle whilst it was in his control in the course of putting it into, keeping it in or bringing its motion to a conclusion.

At paragraph 52 of the judgement at first instance, their Honours indicated that parliament would certainly have intended “driving” to mean locomotion or movement. That action was absent in this case as no one was exercising actual control over the direction and management of the truck and for those reasons, the claim against Foursquare was successful.

The court noted that:

• there was no speed because the vehicle was stationary;
• that the vehicle had come to a full stop and was in park; and
• whether the engine was running or not was not material.

Interestingly, the VWA submitted that the bus referred to in the cases of Container and Zengin was different to the bin truck case in Foursquare. They submitted that it is incidental to the exercise of the job of delivering the bin, for the driver to get out of the truck and see how close he was to the wall.

There was further reference to the case of TAC v Iacuone [1988] VSC 192 in regards to the use of the term “directly caused by” which require a more proximate and immediate causal relationship.  In the Foursquare case, the court noted that the immediacy between the driving and the incident (tripping on the mesh) was absent and the number of steps Mr MacDonald had taken was relevant in forming this view.

The County Court held at first instance that the VWA should be successful in their claim to seek recovery of compensation it paid to the worker under the WorkCover scheme.

Foursquare appealed this decision to the Supreme Court of Victoria – Court of Appeal. The appeal was heard before their Honours, McLeish, T Forrest and J Forrest.

The appeal was on the grounds that the trial judge had:

• erred in finding that it was not a transport accident;
• erred in concluding that there was no causal nexus between the place where the truck was parked in the driving of the vehicle; and
• misconstrued the definition of section 3 of the TA Act and whether this would fit under directly caused by or arising out of the use of the driving of a motor vehicle.

Their honours agreed with the factors and case law authorities set out by the County Court at first instance. They further delved into the history of legislation specifically for section 3 of the TA Act.

At paragraph 69, the court held that:

“the cases showed that the driving of a vehicle is the propulsion and the movement of the vehicle including its movement to a stop, by the control and management of those functions. an incident which happens after the driving is completed may be directly caused by the driving within the meaning of the definition if the incident is immediate in terms of space and time to the driving but even then the questions want a fact in every case”

A helpful illustration was offered by their Honours in paragraph 70, comparing this case with a driver who might be injured immediately after parking their car in a home garage and the garage door malfunctions while closing. Their Honours suggested that, even if it is assumed that:

• the injury follows closely upon the driving;
• the closing of the garage doors related to the driving; and
• the injury might be sustained close to the vehicle,

neither the closing of the garage door nor the injury sustained could be said to have been caused by the driving.

Ultimately Foursquare did not succeed at the appeal and the County Court decision at first instance was upheld.

We continue to see an increase in case law in circumstances where workplace injuries overlap with transport accident injuries. There are a variety of cases and scenarios that can be applied to potential cross-over claims. It ultimately comes down to a question of fact and each case should be considered on its own facts.

Upon reflecting on this decision and what it means for our clients, we acknowledge the arguments made by Foursquare in relation to the parts of the worker’s journey that could have been considered a transport accident. Importantly, however, the fact that the injury occurred when falling on mesh on the ground, and was unrelated to the driving of the bin truck, was the ultimate defining factor. It is important to be mindful of that when presenting a defence or cause of action in these matters.

At Polaris, we always take the opportunity to learn from these cases and others to help us inform, advise and represent our clients to the best of our abilities. If you would like to enquire about this blog or if you wish to make an enquiry as to whether you are entitled to any compensation following a workplace accident or transport accident (or if the two intersect), please do not hesitate to contact us and we’d be happy to help.