- Workers compensation insurers are now entitled to be indemnified by a defendant driver who has been involved in a ‘blameless accident’, as defined by the Motor Accident Compensation Act 1999 (NSW), s 7A.
- The ‘circumstances creating a liability’ referred to in Workers Compensation Act 1987 (NSW), s 151Z(1) need not involve a tortfeasor or wrongdoer in accordance with common law principles of negligence.
- Section 151z of the WCA does not involve an examination of the mechanism of liability and is enlivened in any circumstance where liability exists.
Three recent decision of the Court of Appeal in State of NSW v Wenham  NSWCA 336 makes it clear that workers compensation payments made as a result of death or injury that has arisen as a result of a ‘blameless accident’ are compensable and that a workers compensation insurer is entitled to full indemnity from the driver who is deemed to be at fault.
An employee of the NSW Police (the plaintiff) was injured in a ‘blameless accident’ during the course of her employment. The employee lodged a claim under the Workers Compensation Act 1987 (NSW) (‘WCA’) and received workers compensation payments from the plaintiff. However, she did not make a damages claim under the Motor Accident Compensation Act 1999 (NSW) (‘MACA’).
Proceedings were commenced in the District Court of New South Wales by the insurer of the plaintiff who sought indemnity from the driver of the vehicle at fault (the defendant) for workers compensation payments, in accordance with WCA, s 151Z(1(d) (State of NSW (NSW Police) v Wenham  NSWDC 25).
The question before the District Court was whether the workers compensation insurer could rely on the ‘blameless accident’ provisions and the deemed liability of the defendant driver to seek indemnity in accordance with s 151Z(1)(d) of the WCA.
In answering this question, the District Court determined (at ) that:
(a) The defendant in a ‘blameless accident’, as defined by s 7B of the MACA is not a wrongdoer for the purposes of s 151Z of the WCA;
(b) The deeming provision in s 7B is specifically stated to be ‘for the purposes of and in connection with any claim for damages in respect of the death or injury’ of a person. A claim for indemnity in accordance with s 151Z is not a claim for damages;
(c) The right under s 151Z is a right to indemnity and is not a claim for damages.
The plaintiff appealed the decision.