JA & BM Bowden & Sons Pty Ltd v Doughty [2009] NSWCA 82

JA & BM Bowden & Sons Pty Ltd v Doughty [2009] NSWCA 82

By majority, the appellant's fault was not fault in the use or operation of the tractor. The actual use or operation of the tractor at the time and place of injury was driving it, and the respondent was not at fault in that driving. The lowered roll bar did not affect how the tractor was driven or how it came to roll over. The appellant's fault was properly characterised as an employer's negligent instruction and system of work, given for commercial reasons and remote from the occasion of driving. Chapter 5 of the Motor Accidents Compensation Act 1999 therefore did not apply, and the respondent's damages were to be assessed as modified common law damages under the Workers Compensation Act...

Jurisdiction
Australia
Judgment Date
20 April 2009
Procedural Posture
Torts Negligence; Motor Accidents Compensation and Workers Compensation Damages / Appeal From District Court Judgment
Outcome
Appeal allowed by majority.
Legal Topics
['tractor Rollover Injury' 'fault in the Use or Operation of a Motor Vehicle' 'definition of Injury Under Motor Accidents Legislation' 'unsafe System of Work' 'modified Common Law Damages']
['torts' 'negligence' 'motor Accidents Compensation' 'workers Compensation'] ['tractor Rollover Injury' 'fault in the Use or Operation of a Motor Vehicle' 'definition of Injury Under Motor Accidents Legislation' 'unsafe System of Work' 'modified Common Law Damages']

Case Brief

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Procedural Posture

Torts Negligence; Motor Accidents Compensation and Workers Compensation Damages / Appeal From District Court Judgment

Legal Issues

  1. 1 ["Whether Chapter 5 of the Motor Accidents Compensation Act 1999 applied to the award of damages for the respondent's injury." "Whether the respondent's injury was caused by the fault of the appellant in the use or operation of the tractor." "Whether the appellant's instruction to keep the rollover protection device lowered was fault in the use or operation of the tractor or fault in implementing a system of work."]

Ratio Decidendi

By majority, the appellant's fault was not fault in the use or operation of the tractor. The actual use or operation of the tractor at the time and place of injury was driving it, and the respondent was not at fault in that driving. The lowered roll bar did not affect how the tractor was driven or how it came to roll over. The appellant's fault was properly characterised as an employer's negligent instruction and system of work, given for commercial reasons and remote from the occasion of driving. Chapter 5 of the Motor Accidents Compensation Act 1999 therefore did not apply, and the respondent's damages were to be assessed as modified common law damages under the Workers Compensation Act...

Court Disposition

Appeal allowed by majority.

Orders

  • ['Appeal allowed.' 'Set aside the verdict and judgment for the respondent for $535,198 and in lieu thereof verdict and judgment for $278,628.' "Respondent to pay appellant's costs of the appeal and to have a certificate under the Suitors Fund Act if otherwise qualified."]