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Greenhouse gas emissions The Panel recommends that the existing range of diverse greenhouse gas measures (including the Commonwealth's Mandatory Renewable Energy Target) be replaced with an economy-wide national emissions trading system that is not specific to any particular technology or fuel type and that focuses on carbon reduction (rather than the use of renewable energy sources). In this way, the Panel seeks to ensure the adoption of greenhouse gas abatement measures that are the most efficient and least costly. Energy-intensive users in the traded goods sector would be exempted from this scheme (subject to meeting world best practice in energy use) until Australia's main competitors have joined a greenhouse gas scheme. The proposed emissions trading scheme would be designed so as to achieve the same level of emission reductions as the greenhouse gas abatement measures that it replaces. Moreover, given that a number of renewable energy projects have been established on the basis of financial incentives provided under these existing measures, the Panel recommends the grandfathering of the effective subsidies that these investments currently receive. Conclusion The COAG Energy Market Review Panel has made a valuable contribution to the debate about the reforms that are required to Australia's energy markets. Further contributions to this debate can be expected with the Commonwealth's formal response to the report in March and its consideration by the COAG Energy Ministers in April. NEW SOUTH WALES WORKERS COMPENSATION ACT ­ INTERACTION WITH MOTOR ACCIDENTS COMPENSATION ACT* Pender v Power Coal Pty Ltd [2002] NSWSC 925, 26 September 2002, NSW Supreme Court, Wood CJ at CL Facts The Plaintiff filed a Statement of Claim claiming damages under the NSW Workers Compensation Act for injuries sustained while working in the Angus Place Colliery of the Defendant. The Plaintiff asserted that he was injured when workers were attempting to unwind a 50mm reinforced water hose which had been wound around a 750kg metal drum by means of a forklift. The operator of the forklift reversed the vehicle pulling the drum along the ground without lifting it free of the ground. The drum then fell off the forklift and rolled onto the Plaintiff causing injuries to him.

* Suchada Songvejkasem, Summer Clerk, Allens Arthur Robinson.


The Defendant filed a Notice of Motion seeking an order that the proceedings be struck out for lack of jurisdiction on the grounds that the NSW Motor Accidents Compensation Act 1999 applied and the Workers Compensation Act did not apply in these circumstances. Section 151E of the Workers Compensation Act provides that modified common law damages under the Workers Compensation Act does not apply to an award of damages to which part 6 of the Motor Accidents Compensation Act 1999 applies. A claim may be made under the Motor Accidents Compensation Act where it is for damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle. Where there is an unregistered vehicle, an owner of the motor vehicle is defined as any person who solely or jointly or in common with any other person is entitled to the immediate position of the vehicle. Issue The issue in the case was whether, on the above facts, the injury to the Plaintiff was caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle. It was accepted that the forklift was a motor vehicle and that the above definition meant that the Defendant was the owner of the vehicle as it was entitled to the immediate possession of the vehicle. The Court did not determine the fault issue but concentrated on whether the injury was caused in the use or operation of the vehicle. Decision The Court determined that having regard to other case law in the area, it could be said that the injury was caused in the use of a motor vehicle. The proceedings could not therefore be brought under the Workers Compensation Act. The Statement of Claim was struck out but without prejudice to the Plaintiff being able to bring, in the appropriate Court, fresh proceedings under the Motor Accidents Compensation Act. Judge's caution The Judge's final note was that close consideration on the part of the industry and legislation is required of the question whether accidents in underground mining situations, which involve the use of equipment falling within the definition of motor vehicles, should be exempt from the operation of the Motor Accident Compensation Act. The use of vehicles with the modifications required for mining purposes, and the nature of the activities in which they are displayed arguably places them in a very different category from that which would apply to the use of conventional vehicles aboveground.