Motor Accidents Insurance Board v Cook [2013] TASFC 4

The Full Court of the Tasmanian Supreme Court has decided that an employee travelling to work in a company vehicle is not necessarily acting in the course of their employment.

Facts

Mr Cook was injured when the car in which he was a passenger ran off the road during a journey between home and work. The car was owned by his employer, Gradco Pty Ltd, and at the time of the accident, was being driven by Mr Buckingham, another employee.  Mr Cook brought an action against Mr Buckingham for damages for his injuries, claiming that they were caused by Mr Buckingham's negligent driving. Negligence was admitted for the purposes of the case.

Normally, the Motor Accidents Insurance Board would indemnify a negligent driver in respect of liability for damages under the Motor Accidents (Liabilities and Compensation) Act 1973, s 14(1). However, the Board alleged that it was not liable in the circumstances of this case, because Mr Buckingham was acting in the course of his employment at the time of the accident and hence, the Workers Rehabilitation and Compensation Act 1988 should apply to the damages claim instead.

The trial judge, Blow J held that Mr Buckingham was not acting in the course of his employment when Mr Cook was injured and that Mr Buckingham was entitled to be indemnified by the Board in respect of his liability for damages to Mr Cook.
 

The Appeal

The Board appealed the decision, submitting that Blow J erred in finding Mr Buckingham was not acting in the course of his employment when driving in the motor vehicle to his place of employment on the day of the accident.

In dismissing the appeal, the appellate court surveyed the Australian Workplace Agreement that directed Mr Cook’s and Mr Buckingham’s employment with Gradco. The court observed that the employees were not obliged to accept Gradco’s offer of a work car to travel to and from work. They were also entitled to decide on their route to take when travelling in the company vehicle.

The full court held that the employees’ flexibility and absence of obligation meant that Mr Cook was not acting in the course of his employment at the time of the accident. This was despite the fact that in accepting the offer of a vehicle and travelling to work, the company benefitted from the provision of vehicles to employees.

Chief Justice Crawford discussed a number of principles articulated in relevant United Kingdom decisions before deciding:

“The learned judge was correct when he concluded that Mr Buckingham did not have a contractual obligation to transport himself or Mr Cook... on the morning in question. Each had a contractual obligation to present himself for work at the required place and time. Each was free to choose his own route and means of transport to and from job sites, notwithstanding that if an offer of a company vehicle was accepted, it might be required that another employee be carried in it.

It should not be accepted that the employee who travelled on his own … in a company vehicle may not have been acting in the course of his employment, but one who transported a fellow employee with him was so acting. The making of such a distinction would be bordering on disingenuity…”

Justice Tennent and Wood J agreed with Crawford CJ.

 

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