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WORKERS’ COMPENSATION - Election to make tort claim - After election to receive benefits - Subrogation

Thursday, February 15, 2018 @ 8:43 AM  

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Appeal by Weir’s Construction from a judge’s determination that a subrogated action on behalf of Warford’s estate could proceed against Weir’s. Warford worked for Weir’s as a mechanic. He was injured while repairing a large truck, when the truck rolled off blocks that it had been placed on for the purpose of repairing it. His lower body was crushed. Warford received compensation benefits. The Workplace Health, Safety and Compensation Commission abandoned a subrogated claim against Weir’s, but permitted Warford to proceed with the claim. The Commission subsequently determined that the action was prohibited because the accident in which Warford was injured did not involve the use of a motor vehicle. On judicial review, the judge focused on the availability of a claim in negligence based on the use of a front-end loader and a flatbed truck to move the truck onto the blocks for repair in finding that the accident did arise from the use of a motor vehicle, such that an exception to the bar on claims by injured workers applied.

HELD: Appeal allowed. The judge erred in focusing on a possible claim in negligence, rather than on whether the Workplace Health, Safety and Compensation Act permitted Warford’s action to proceed.  The purpose of the Act was to provide a no-fault insurance scheme, so questions of fault and negligence did not arise prior to the determination of whether an action was permitted.

Warford v. Weir's Construction Ltd., [2018] N.J. No. 16, Newfoundland and Labrador Court of Appeal, B.G. Welsh, C.W. White and L.R. Hoegg JJ.A., January 22, 2018. Digest No. TLD-Feb122018007