Abbott v Transport Accident Commission

[1990] HCATrans 220

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M23 of 1990

B e t w e e n -

JOAN PATRICIA ABBOTT

Applicant

and

TRANSPORT ACCIDENT COMMISSION

Respondent

Application for special leave

to appeal

DAWSON J TOOHEY J McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 7 SEPTEMBER 1990, AT 2.17 AM

Copyright in the High Court of Australia

Abbott 1 7/9/90

MR E.W. GILLARD, QC: If it please the Court, I appear with my learned friend, MR A. McINTOSH, for the applicant.

(instructed by MacMillan Segal & Lenton)

MR P. NASH, QC: If the Court pleases, I appear with my

learned friend, MR E. MILLER, for the respondent.

(instructed by Phillips Fox)

DAWSON J: Mr Gillard.

MR GILLARD:  Your Honours, the right of the applicant widow

and her children to make application and recover

compensation comes about by reason of section 35 of

the Transport Accident Act and we hand copies of
that Act to Your Honours. If Your Honours go to

the second page you will find a heading,

"Part 3-Compensation". Section 35 says while:

A person who is injured as a result of a

transport accident is entitled to compensation

in accordance with this Act if -

et cetera. Subsection (2):

A dependant of a person who dies as a result

of a transport accident is entitled to

compensation -

et cetera. Question: what is meant by "a

transport accident"? Go to page 1 and Your Honours

will see that "Transport accident" is defined as

meaning:

an incident directly caused by, or directly

arising out of -

the use of a motor car.

Now, Your Honours, we submit we have four points of law and I will identify them without

expanding on them at the moment. The first relates

to the proper construction of that phrase, "arising

out of the use of a motor car" and its application
to the facts as found in this matter.	The second

point is whether there should be a test of

characterization or categorization of the motor

vehicle in question as a starting point in any

consideration of that provision.

TOOHEY J:	I am not sure that I understand that, Mr Gillard.
MR GILLARD:	Your Honours, in the Full Court the judges appeared to consider that it was appropriate to
have a characterization test, namely what is the
normal function or use of this motor car, and then
having established that then pose the test, "Well,
was this use foreign, utterly foreign?" Now, we

Abbott 2 7/9/90

say and we will be saying that the authorities do

not support that approach and, indeed, it tends to

focus on the wrong questions. So, that is the

second point.

The third point is whether the Full Court was

correct in holding that the High Court decision of

Harvey Trinder was indistinguishable and

accordingly the result had to follow in accordance

with that case.	Now, we will be submitting that
that case has been somewhat misunderstood.	It was

not properly applied and if the construction put on

the case, if I can call it that, by the Full Court

is correct, then we will be submitting that it is

bad law and should be looked at again by this Court

and overruled.

The fourth point relates to the nature of the

appeal. The appeal to the Full Court is given

under the Administrative Appeals Act. It is on a question of law and the question arose as to what was the appropriate test and the Full Court in

Hoffman's case held that an appellant in such an

application had to show that it was not open to the

tribunal to reach the conclusion which it did.	In
other words, weight is attached to the decision
made by the tribunal.

Now, it would appear, and I will come back to

this in a moment, that there is some doubt about

precisely what that provision means. It was taken

from the federal Administrative Appeals Act and

there has been some discussion about what it means

but nothing has been definitely laid down as we
understand it.

Well now, Your Honours, no doubt, understand the facts in this case. Could I hand to

Your Honours a not very good photostat, and I

apologize for this, of the winch in question.	Now,
Your Honours will be aware that the vehicle in

question was a Toyota Landcruiser, and Your Honours

are no doubt familiar with that. This photograph

shows a utility but the winch is attached to the

front of the vehicle and becomes part of the

vehicle.

TOOHEY J:  Mr Gillard, there is one thing that I do not

quite understand about the operation of the winch.

I understand the operation of a power take off but
there is a suggestion in the judgment of the

Full Court that this winch was operated by the

battery.

MR GILLARD: That is correct.

Abbott	7/9/90
TOOHEY J:	And that the ignition was turned on only to keep

the battery from running flat.

MR GILLARD: That is correct. In other words, the winch is

operated by electricity from the battery.

DAWSON J:  Or from the generator?

MR GILLARD: Well, the generator powers the battery which,

in turn, supplies the power.

DAWSON J:  No.

MR GILLARD: Well, I would have thought - that is why you

turn the ignition on and have the motor running, so

the generator is running to keep the power up in

the battery so you do not flatten the battery. I

suppose one could say the power goes direct through

and comes from the generator but, as I understand

it, the generator keeps the battery topped up, so

to speak, and it does not flatten it as a result of

being used.

DAWSON J: Well, ultimately, it is the power from the

generator which keeps the winch going.

MR GILLARD: Yes, keeps it going.

DAWSON J: Although you could operate from the battery alone

if you did not have the motor running.

MR GILLARD:  Yes, you could. Yes, but in this case the

motor was running - was keeping up the power in the

battery. The battery was operating the winch.

Your Honours, as I say -

TOOHEY J:  Can you just come back to that for a moment

because it may be of some importance. Is it the
position that the winch could have been operated

just as effectively with the ignition turned off?

MR GILLARD:	Yes.
TOOHEY J: Apart from the effect that that might have had on

allowing the battery to run down.

MR GILLARD: Yes, that is so, Your Honour.

Well now, Your Honours, could be just

emphasize a few of the facts.	The first is that
this winch is an optional extra.	The second is

that it is built into the bumper bar and bull bar
of the vehicle. It is attached to the chassis. It
is operated by power from the battery but, as we
have indicated, the engine is usually put into

operation to keep the power up in the battery to

Abbott 4 7/9/90

maintain the power. And that the winch can be

operated from inside or outside the vehicle.

Now, we submit that the judges of the

Full Court were in error in deciding that this incident did not arise out of the use of a motor vehicle. Now, Your Honours are fully aware that this Court has, on many occasions, over the years

had cause to look at this phrase or a similar

phrase and I have distilled the principles that, in

our submission, are established from the various

cases, and I hand to Your Honours copies of those

principles.

Your Honours, the question is ultimately one

of fact. Each case must be considered in the light

of its own facts. The statutory phrase is to be

applied to the circumstances of each case.	No
universal rule can be laid down.	The Court should

apply broad and practical conceptions rather than

seeking subtleties. The words are not concerned

with fine distinctions. Liability arises out of
everything that falls fairly within the conception
of the use of a motor vehicle. Words are not

limited by reference to the distinguishing

characteristics which bring it within the

definition of a "motor vehicle". Loaders and

mobile cranes when being used as such are being

used as motor vehicles.	Words are not confined to
the vehicle being used on public roads.	The words

"arising out of" must be taken to require a less

proximate relationship to the incident to the

relevant use of the vehicle than is required by the

words "caused by".

The vehicle is being used if it is fulfilling

a purpose for which it is designed and constructed,

it may have a number of purposes. It is being used

if used as part of its anticipated use. "Use"

extends to everything that fairly falls within the

conception of the use of a motor vehicle and may

include a use which does not involve locomotion.

An injury must be in some way a consequence of the
use of a motor vehicle.	It cannot be utterly
foreign to its use.

Now, we submit that in this case the Full

Court was wrong. We submit that the winch became

part of this motor vehicle once installed; that

the winch was dependent upon that vehicle for three
reasons, namely, for transporting to a place of

use, for power and, thirdly, that the vehicle was

necessary as an anchor for the use of the winch.

We submit that once this was attached to this

vehicle, this vehicle had an additional function,

namely, that it could be used from time to time as

Abbott 7/9/90

a mobile winch in the sense that its purpose was

at a particular time it could be used on the

vehicle, and we say that the motor vehicle's

functions were extended now to include a winching

capacity.

Now, we submit that if you look at that unit

as an extended unit, then on this day the accident

or incident did arise out of its use and that the

vehicle, as we have indicated, had a number of

uses. Now, we would submit that looking at it in

this way, that this winching operation fairly falls

within the conception of the use of that particular

vehicle. And, Your Honours, what the Full Court

said was, no, this was not a use of this motor

vehicle, it was a use of this winch and, of course,

the Full Court was very much influenced by this

Court's decision in Harvey Trinder. Now, we will

be submitting that Harvey Trinder does not support

the proposition that if you attach a winch to a

vehicle such as this and are using it, that it
means that it arose out of the use of the winch and

not out of the use of the motor vehicle.

Now, we submit that the question of law that

does arise is whether or not the phrase "arising

out of the use" extends to a situation where a

piece of equipment is attached and forms part of a

motor vehicle and is being operated at the time

when the injury is caused and we submit that in

this case the Full Court was wrong in construing the provision not to include a situation such as

this.

Now, that brings me to the second point, the

question· of laying down this test of

characterization. Could I take Your Honours to

what Mr Justice Crockett said at page 19, line 8:

I think that the respondent is correct

when he contends that the first step is to

categorise the vehicle. The second, then, is

of it as a categorised vehicle. If there was	to determine whether there was a relevant use	then it is sufficient if that use "is one that
is not utterly foreign to its character as a
motor vehicle" thus categorised.

And he refers to what Mr Justice Windeyer said in

Green's case, but then he says:

But the first step remains to characterise the

vehicle. The vehicle plainly was not a mobile

winch in the sense that a vehicle may be a

mobile crane or compressor with a specific use

(or even have dual uses). The use of a

Abbott 6 7/9/90

vehicle as a motor vehicle will vary according

to the nature of the vehicle.

Now, we would submit that - well, perhaps I

should refer Your Honours to what

Mr Justice Southwell said at page 29 - well,

actually, 29 is my learned friend's argument where

he says that you should categorize it. It is at

page 37 where His Honour says that is an

appropriate start. This is at page 37, line 14:

It is, I think, useful to have regard to the ordinary description or categorisation of the object in respect of which a claim is made
that its use involves the use of a motor

vehicle. In Stevens, it was a mobile

compressor; in Green, a motor truck; in

Fawcett, a converted tractor ..... in each of

Harvey Trinder, and Commercial and General

Insurance, a mobile crane. In the present

case, the object is a four wheel drive

passenger carrying vehicle, something like a
sedan, fitted at the front with a winch which,

as seen in the photograph tendered, is dwarfed

by the vehicle. The vehicle is designed for

use on and off highways. In my opinion, it

would be absurd to describe it as a mobile

winch.

And His Honour then goes on to apply that test.

Now, in our submission, it is not an

appropriate approach in cases such as this to apply

such a test. It may be a factor to be taken into

account but it tends to focus on that one

particular point and does not give effect to what

has been said on many occasions about this

legislation, that each case should be decided on

its own circumstances.

DAWSON J: But if the answer is conclusive, it is an

appropriate test, is it not?

MR GILLARD: Well, if it was conclusive in the end, if it

was a factor to be taken - if you did apply that

test and came to the view that it was not - - -

DAWSON J:  I mean, if you have, for instance, an electric

shaver plugged into the cigarette lighter, you

would not describe the car as a mobile electric

shaver, would you?

MR GILLARD:  No, you would not.

DAWSON J: That falls on one side of the line plainly and

the court held that this did too.

Abbott 7 7/9/90

MR GILLARD: 

Yes but, in our submission, the authorities

indicate that one should look at each case as it
comes along and to apply this type of test tends to

focus on that one particular point.

DAWSON J: But if it is the crucial point, that is enough,

is it not?

MR GILLARD: Well, could I put it this way to Your Honour,

that even if that - well, I accept that that is a

test that can be applied but it is not the starting

point, in our submission. But even if that were

so, in this case, we would submit that it does

become a mobile winch. Just because it happens to

be a small winch does not alter the fact that

combined it has that.facility which includes a

mobile winch. The tendency seemed to be in the

Full Court judgments that because it was dwarfed by
the vehicle it was not a mobile winch and that is

an absurd proposition. Now, with respect, in our

submission, once you put a winch on of any size,

thereafter that vehicle has a facility of having a

mobile winch which can be used.

DAWSON J: But if you attach a winch to any inert object as

you have to to provide a base, it does not make

that object a winch.

MR GILLARD: Well, there is still a winch there, with

respect, Your Honour.

DAWSON J: There is a winch there and there is a winch on

the car.

MR GILLARD:  Yes.

DAWSON J: All the car provides is stability, that is all,

for the winch.

MR GILLARD: Well, with respect, it provides a little more

than that. It provides a facility of getting it to

a position; it provides the power and it provides

the anchor, and that unit as a motor vehicle

thereafter has that facility. It has a dual

purpose. It has a number of purposes but one of

the purposes of that unit as a motor vehicle as

converted includes it being a mobile winch.

DAWSON J:  Just the same as one of the purposes may be to

run an electric shaver but you do not describe it

as a mobile shaver.

MR GILLARD: Your Honour, I respectfully agree with that but

if yqu apply common sense in this field, and we
would respectfully submit that is the way one

should go, we would respectfully agree that you

could hardly describe nipping your face as you sat

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in the car with your electric shaver as an incident

or injury arising out of the use of the motor

vehicle and we would not quibble with that for one

moment. But we say, look at this position here:

you have the winch; you are using it with this

vehicle and you put the vehicle in a certain

position and then the accident occurs. Now, we

submit that that does arise out of the use of the

motor vehicle. It is an incidental use of that

unit.

DAWSON J: It is a question of fact, it is not, Mr Gillard?

I mean it is whether it falls on one side of a line

or the other, that is all it is. Take a mobile

telephone: is a car a mobile telephone? Or is the

mobile telephone something different?

MR GILLARD:  I think that is something different too,

Your Honour.

DAWSON J: There could be all sorts of attachment on a car,

the use of which does not involve the use of the

car as a car.

MR GILLARD:  Yes but, with respect, the winch, in our submission, does. You consider this as a unit: it

has a number of purposes. Now, one of the

purposes - the car is very important for that

particular purpose and we submit that it does form

part and parcel of the purpose of this particular

car.

We submit that to apply some test as a

starting point is contrary to the authorities. We

refer Your Honours to Green's case, 114 CLR 437 at

page 444. I do not know that we have to hand these

up to Your Honours because Your Honours will all

know this phrase. It is in the judgment of the

Chief Justice, Sir Garfield Barwick:

After consideration, I have come to think

it better to endeavou~ to apply the statutory

expression as it is to circumstances as they

arise, bearing in mind, as my brother Menzies

has pointed out in Fawcett v BHP By-Products

Pty Ltd, that in this field one should not be

seeking subtleties but rather applying broad

and practical conceptions.

Now, we submit that by focusing on that particular use and then asking whether it is utterly foreign

cuts across what we submit is the proper approach,

is to look at each case in its particular

circumstances and apply the words, and you should

not be seeking subtleties in the approach.

Abbott 9 7/9/90

Now, Your Honours, the court in the Full Court was very much influenced by the Harvey Trinder case

as being support for the proposition that this all

arose out of the use of a winch and therefore it

did not arise out of the use of a motor car. And

could we take Your Honours to that case, and I hand

to Your Honours copies of that case. I hand the

High Court and the Full Court of New South Wales

decision.

Now, Your Honours, this High Court report

makes it somewhat difficult to determine precisely

on what basis this Court dismissed the appeal. I

will just refer Your Honours to the headnote first

of all:

A workman engaged in land-clearing

operations was injured when a steel cable

attached to a tree at one end and to the drum

of a winch fastened to the table-top of a

motor truck at the other snapped and struck

him. The winch was powered from an off-take

of the motor truck's engine but the truck

itself was immobilized by being secured to a

tree which acted as an anchor to keep the
truck in place against the effort of the winch

and cable.

Now, Your Honours, could I take Your Honours

to page 450 where there appears to be a summary of

the facts - two-thirds of the way down page 450:

It appeared that on 16th September 1959 Newman was working in his business of a land-

clearing contractor and with his employee,

Reely, was engaged in pulling down trees.

Newman had on the site the motor vehicle the subject of the third party policy, which was in the form of a mobile crane. Mounted on the

vehicle was a winch which could be controlled

from the vehicle and which enabled loads to be

running up the jib. At the time when Reely	lifted or dropped by means of the wire rope
was injured the crane was not in use, but the
winch was.

Now, that is of some significance, Your Honours, as

it will appear later.

The vehicle was backed up against a tree so

that the tree would act as an anchor for it

and the winch rope was run out around its

pulley and back to the tree against which the

vehicle was placed and the end of the winch

rope anchored at the tree. At the pulley a

further rope was joined with another pulley on

it and this rope was anchored back to the tree

Abbott 10 7/9/90

and then another rope ahead of that and then a

shorter rope to which was attached a forest

devil-hook. This last rope was run around a

tree at a height of about fifteen feet so that

the -

and that should be "tree" -

could be brought down. When these ropes were

placed in position the winch power was run

from the engine of the motor vehicle and a

tension of between forty and fifty tons was

placed on the ropes. When this was done the

last rope to which the forest devil-hook was

attached came away at one of the hooks. It

came away either by breaking or by cutting

against a wedge holding the rope in the forest

devil-hook. The piece of rope then lashed

down, striking Reely and injuring him

severely.

The suit was heard by Jacobs J., who,

being of opinion that Reely's injuries did not arise out of the use of a motor vehicle within the meaning of the third party policy,

dismissed it.

Upon appeal the Full Court of the Supreme

Court affirmed this decision.

Now, if one then goes to what the

Chief Justice said, it is somewhat difficult to

determine precisely what it was that forms the

ratio decidendi of the decision in this Court.	The
Chief Justice says:

I adhere to what I said in the

Government Insurance Office of New South Wales

v R.J. Green and Lloyd Pty Ltd. There I said,

as counsel has recently cited, "After

consideration, I have come to think it better

to endeavour to apply the statutory expression

as it is to circumstances as they arise,

bearing in mind, as my brother Menzies has

pointed out in Fawcett v BHP By-Products Pty

Ltd -

and Your Honours have read that. Then His Honour

says this:

The question here is whether the injury to the man Reely arose out of the use of the insured

motor vehicle. The injury resulted from the

snapping or loosening of a steel cable

attached to a tree at one end and to the drum

of a winch fastened to the table-top of the

motor truck at the other end. That winch was

Abbott 11 7/9/90

part of the gear of a crane mounted on the

truck but was not in use as such a part at the

time in question.

Now, just pausing there, when we go back to look at

the Full Court decision of New South Wales, it is

fairly apparent, in our submission, that one point

that the court upheld was that the particular words

of the policy under consideration only applied to a

mobile crane. And if the vehicle was not being

used as a mobile crane then, under the terms of the

policy, it did not apply.

Now, admittedly, the Full Court of New South

Wales - that was the first point that was made.

Then they went on to consider or, sorry,

Justice Sugerman went on to consider whether or not

on broad grounds it arose out of the use of a motor

car and he decided that it did not but he was very

much influenced by the fact that at the relevant

time the vehicle was immobile - was not mobile.

Now, Mr Justice Manning in the Full Court of

New South Wales held that it did not arise out of the use of a motor vehicle, the accident occurred

because the rope snapped. In other words, it was

the rope that was at fault and it was not the use

of the motor vehicle.

Now, just precisely what Sir Garfield Barwick

is saying there may be open to debate but, in our

submission, what he is saying there is that because

it was being used not as a mobile crane but as a

winch, the policy did not cover it.	Now, just
going on:

The winch was powered from an off-take of the motor truck's engine but the truck itself

was immobilized by being secured to a tree,

which acted as an anchor to keep the vehicle

in place against the effort of the winch and

the cable.

The resolution of this matter and of

matters of like kind is not without its
difficulties, but I have reached the clear
conclusion myself that the injury received by
Reely did not arise out of the use of the

motor vehicle. That the truck would be moved

to another anchorage after the tree, then in
the course of being felled, had fallen, or

that the winching of a tree, as described, was

part of an overall operation of land clearance

which did involve the movement of the vehicle

from time to time or that the function of the

vehicle was to move the winch itself from

position to position, in my opinion, is not

Abbott 12 7/9/90

relevant to the resolution of the question.

Even if the reference in the policy to

item 17(a) of the schedule of rates, and to

the use which might be made of the insured

motor vehicle without payment -

et cetera -

a matter upon which I express no concluded

opinion - in my opinion, the injury to Reely
none the less did not arise out of the use of

the motor vehicle within the meaning of those

words in the policy.

In the result therefore I am content -

to agree. Justice McTiernan:

In my opinion the true conclusion to reach is

that this injury arose out of the use of the

winch -

now one Judge is saying that.	Mr Justice Menzies
says:

I agree -

and Mr Justice Windeyer also says that the appeal

should be dismissed. Justice Owen agreed with the

Chief Justice.

Now, that case has been construed by our

Full Court on the basis that it is a decision for the proposition that the use of a winch on a vehicle such as this cannot, in the circumstances,

be a use of the motor vehicle. Now, we submit,

when Harvey Trinder is properly understood, that is

not what Harvey Trinder decided.

Could I take Your Honours very quickly to the Full Court decision which we have handed to

Your Honours and that is reported in (1966)

66 SR(NSW) 107. In the judgment of the President

at page 110 about point 3, Your Honours will see

the first paragraph there.	If you go up about four
lines, His Honour says:

What were actually in use for winching purposes were the drum and winding rope with

which the insured vehicle was equipped for the
purposes of its function as a crane, together
with its engine and transmission system as a
source of power, and together also with

additional ropes and pulleys which would not

be used when it was working as a crane.

Abbott 13 7/9/90

Use as a winch, in the manner adopted by

Newman for the winching down of trees, is

essentially different from use as a crane.

He then goes on to explain that.	If we go down to
the next paragraph:

The relevant principle is stated by Windeyer J. in construing a similar third

party policy, containing an identical cl. 5,

in Fawcett v BHP By-Products Pty Ltd. At

p. 90 his Honour said: "I take the effect of

cl. 5 and item 17(a) read together to be that

insured excavators must only be used as

excavators, road-graders as road-graders, tar-

boilers as tar-boilers and so on; and that

any other insured vehicle comprising any

machinery or apparatus and which is not

constructed principally for the conveyance of

persons or goods may be used only for
performing the normal functions of such

machinery or apparatus. That means in the

present case that the mechanical loader might

be used only as a mechanical loader. fa

liability arose out of its use for some other

purpose that liability would not be covered."

And then the President:

In the present case the liability of Newman to

Reely arose out of the use of the mobile crane

for a purpose other than that of a mobile
crane and therefore, on the true construction

of the third party policy, was not covered by

it .. Mr Langsworth has drawn attention to the

circumstance that in the nomination of the

respondent as insurer, which takes the place

of a proposal, it is stated that the vehicle

would be used by Newman in his occupation -

and he then, at the bottom of that paragraph on the

next page:

The nomination, as well as the policy,

described the insured vehicle as a mobile

crane, and the two together cannot be regarded

as contemplating anything more than its use as

a mobile crane -

His Honour then said:

What has been said is sufficient to lead

to the conclusion that in the circumstances of

this case no claim to contribution arose -

and he then goes on:

Abbott 14 7/9/90

It is, however, proper to add, having

dealt with the question as one of the
construction of the third party policy that I

am in substantial agreement with Jacobs J. 's

treatment of it along broader lines of

principle.

And if one goes over to page 112, the

President indicates the basis upon which he said it

did not arise, and that is about point 2:

The answer seems to turn upon whether the

function of the new combination is one of which mobility is a characteristic or for whose performance mobility is necessary.

Now, he seemed to be saying that you start off with

that proposition, "Is it mobile or is it not

mobile?" and because it was not mobile in these

circumstances he came to the view that it did not

arise out of the use of the motor vehicle.

Mr Justice Walsh agreed with him.

Mr Justice Manning, if one goes over to

page 115, says, and this is at point 1:

In this case, while it is true that the power

was not used to cause mechanical equipment to
function, it was used to create a tension

which was then magnified by the use of the

pulleys and ropes mentioned and the sling rope

which was attached to the tree. The injuries

suffered by the employee in this case were

caused by a fault in the ropes and their

attachments to which the power was applied.

Now, we submit that if one looks at that

Full Court decision, one can then readily

understand what the High Court said in Harvey

Trinder, namely, that you fail in this case because

the terms of the policy do not cover this vehicle

when it is being used other than as a crane.	Now,
in our submission, that is what Harvey Trinder

stands for and yet, in this case, the Full Court

said the case was indistinguishable, it stood for a

proposition that a winch in those circumstances could not - that an incident arising out of the winch, in those circumstances, could not arise out

of the use of a motor vehicle.

Now, Mr Justice Sugerman talks about mobility

as the starting point. Now, later cases have shown

that that is not correct, that mobility has got

nothing to do with it. You can still have an

accident arising out of the use of even though the

vehicle may be immobile.

Abbott 15 7/9/90

So, we submit that for that reason also the Full Court went wrong in that it did apply that

case and said it was indistinguishable. If I could
refer Your Honours to page 17, line 4:

I am aided in coming to that conclusion (as was the Tribunal) by the trial Judge

(Jacobs, J.) having reached a like conclusion

on very similar facts in Harvey Trinder and

the refusal of the Full Court and the High

Court to disturb that conclusion.

Southwell, J. has rehearsed the facts in the

Harvey Trinder. It is unnecessary to repeat

them.

Then over the page:

His Honour, thus, did not characterise the

vehicle as a mobile winch. Accordingly, he

held that the injury in that case did not

arise out of the use of a motor vehicle.

With respect, I consider his Honour's

decision and the reasoning that led him to it

to be correct.

At pages 38 and 39, in the judgment of

Mr Justice Southwell:

In my respectful opinion, the reasoning of Jacobs, J. and on appeal Sugerman and

Walsh, JJ. in Harvey Trinder was sound, and the High Court should not be found to have

disapproved of it. I think, the

Deputy President of the Tribunal was correct

in finding that the High Court decision in

that case was indistinguishable. I regard the incident here relevant as having arisen out of the use of the winch, not of the vehicle.

So, the court clearly, in our submission, was

very much influenced by Harvey Trinder and, in our

submission, on a proper reading and understanding

of that case it does not support the proposition

that just because you have a winch forming part of

the equipment of a vehicle, that you can then turn

around and say, "Well, when it is being used and

something happens, it doesn't arise out of the use

of the motor vehicle, it arose out of the use of a

winch." And if one looks at it in that way you can

consider the situation here you place the cable not

on a winch but on a part of your front bumper bar

and you try and pull the tree down.	You get in
the vehicle and you start to reverse it.	You pull
the tree down.	Now, in our submission, that would

be a use of a motor vehicle.

Abbott 16 7/9/90

The difference here is that you have attached

as a permanent fixture to this motor vehicle a

winch and you put the car in the most convenient

position so that the winch is in the best position

and then you proceed to use the winch. Now, in our

respectful submission, on broad conceptions and

common sense approach, we submit that in those

circumstances the incident does arise out of the

use of a vehicle because that vehicle has as one of

its purposes a winch.

Now, Your Honours, the fourth point and

the final point is what is the nature of this

appeal. I refer Your Honours to Transport Accident

Commission v Hoffman, (1989) VR 197. If

Your Honours go to page 198, which is the next

page, Your Honours will note in the joint judgment

of the Chief Justice and Mr Justice McGarvie:

These three appeals are brought by the

Transport Accident Commission pursuant to

s. 52(1) of the Administrative Appeals

Act 1984, which reads:-

"52.(1) A party to a proceeding before the

Tribunal may appeal to the Supreme Court, on a
question of law, from a decision of the

Tribunal in that proceeding."

And then they say:

The sub-section appears to have been copied directly from s. 44 of the

Administrative Appeals Tribunal Act 1975 (Cth)

save that "Supreme Court" has been substituted

for "Federal Court of Australia".

At the outset it is, we think, necessary

to consider the meaning and scope of the

provision. It is a curious provision which

has attracted some attention in judgments of

the Federal Court. It is curious because a

right of appeal "on a question of law" appears	to be a novel concept. A right of appeal is a
familiar concept but it is usually a right
given to appeal "from" or "against" a
decision. So here the right given is to
appeal "from a decision of the Tribunal". The
interpolation of the words "on a question of
law" seems clearly enough to show an intention
to limit the right of appeal but it is not
clear what limitation is intended.

One possibility would be to treat the

sub-section as giving a right of appeal from a decision of the Tribunal on a question of law, thus linking the question of law to the

Abbott 17 7/9/90

decision rather than to the appeal. But so to

construe the sub-section would seem to defeat

its purpose. If the draftsman had intended to

grant a right of appeal from a decision of the

Tribunal on a question of law there is no

reason why he should not have said so

directly. On the other hand, we agree with

Northrop J. that the wording is to be

contrasted with the wording of s. 196(1) of

the Income Tax Assessment Act -

and they then set out the provision.

As Northrop J. observed in Committee of

Direction of Fruit Marketing v Australian the Administrative Appeals Tribunal Act

appears to be more limited in scope. The same

comment is relevant to the Victorian Act.

How then is it to be construed? It is

not to be construed as limited to an appeal

from a decision of the Tribunal on a question

of law. Nor is it to be construed as granting

an appeal from any decision which involves a

question of law. The via media we think is to

construe the section as granting a right of
appeal from any decision of a Tribunal on a
question of law which is involved in the

Tribunal's decision.

And he refers to Justice Deane.

This construction would exclude an appeal upon such questions as whether a particular

decision was against the evidence and the

weight of evidence. It would, however, allow

an appeal upon the question whether there was

any evidence upon which the Tribunal could

have reached the decision which it did reach.

And then it says:

the Full Court of the Federal Court held that

in order to succeed, an appellant would have to show that there was no basis on which the

Tribunal could reach the conclusion which it

came to: see especially per Fisher J.

Although the Federal Court has had to

grapple withs. 44(1) of the Federal Act upon
a number of occasions it has not, so far as we

have been able to discover, attempted to
define the scope of the sub-section further

than we have already indicated, save that

there have been a number of cases in which the

Abbott 18 7/9/90

meaning of the word "decision" in the sub-

section has been discussed.

For the purposes of the present cases it

is not necessary to pursue the analysis of

s. 52 any further and we turn therefore to

each of the cases -

Now, if one then goes over to the next page, this

is the test they state. This is at about point 2,

the bottom of that first paragraph:

The only question of law that can be said to

be involved in the Tribunal's decision in

Hoffman's case and, therefore, to found the appeal to this Court, is whether on the

evidence before it, it was open to the reach.

So, in other words, it is being said that when you

appeal one of these decisions weight is attached to

the decision below and the onus is upon you to show

that it was not open to reach the conclusion which

it reached.

Now, in our submission, what these words mean

is a question of law. Their application to the

facts, of course, is a question of fact and,

accordingly, you have a situation where you have a

question of mixed fact and law.

TOOHEY J: But is the meaning of "ordinary words" in the

English language a question of fact or a question

of law?

MR GILLARD: Well, Your Honour, in the end when you decide

what a statute means, it is our submission that it

is a question of law and - - -

McHUGH J: There are two decisions in New South Wales to the

contrary of that in 40 SR(NSW) and 55 SR(NSW).

MR GILLARD: Yes. Well, I must say, Your Honour, I have

always understood that, in a jury trial, it is for

the judge to decide what the words mean. If it

becomes a question of construction then their

application to the facts is a matter for the jury.

I must say I have always understood that to be so.

McHUGH J: Well, Sir Frederick Jordan decided in 1940, in a

case, The Valuer-General v The Australian Gas Light

Company that the meaning of "ordinary English

words" in a statute are a question of fact and that

decision was followed in New South Wales in 1955.

Abbott 19 7/9/90

MR GILLARD:  Yes. Well, coming back to what Your Honour

Mr Justice Toohey put to me, if you have used the

phrase "ordinary English words", it would be then

just a matter of putting that to the jury, no

doubt, and asking them to apply that to the

particular facts and in that sense, I suppose, it

is a question of fact.

TOOHEY J: It is a question of law, perhaps, if it is said

that there is no evidence which would fall within
the meaning of the words given their ordinary

acceptance.

MR GILLARD:  Yes.

TOOHEY J: Which, I take it, is what you seek to draw from

Hoffman.

MR GILLARD:  Yes. Well, except we seek to suggest that the

Full Court has stated a too narrow test and that it is not a question of giving weight to a decision

below but it really is a question of deciding what

the words mean and whether they do apply to the

facts in question, that that is a mixed question of

fact and law, and having decided what the words

mean, that it is either the decision was right or

wrong, it is not a question of saying, "Well, the

test is here whether it was open to this tribunal

to reach that decision" and clearly in this case,

of course, the Full Court did adopt that test and

said it was open to the tribunal to reach that

decision.

DAWSON J: What do you say the question of law here is?

MR GILLARD:  On the last point, Your Honour, we would submit

that it is a question of law as to whether this

particular phrase applies to a situation where you

have an accessory permanently attached to a vehicle
and the use of that attachment, whether that is a

use of the motor vehicle at any relevant time.

DAWSON J: That is a question of fact.

MR GILLARD: It is a difficult question, Your Honour.

DAWSON J: It may be a difficult question of fact. It is a

question of fact.

MR GILLARD:  Your Honour, in the end it is a question of -

well, I do not think I can say much more than, in

our submission, you have still got to start off

with the proposition, "What do these words mean and

how far do they extend?" And what the court

clearly has decided here is it does not extend to

this type of attachment on this vehicle and we

Abbott 20 7/9/90

.submit that they have narrowed the words rather

than give them their full effect.

Now, Your Honours, questions of general

importance and a justice point: Mrs Abbott has no

common law claim, of course, and her only right to

compensation for she and her two dependant children

arise out of these proceedings. Secondly, the

provisions, of course, are Australia wide, as we

have heard in the other case and Your Honours can

take judicial notice of that, that they are all

over the place, these provisions, and that in the

circumstances the Full Court did construe the words

too narrowly and that accordingly it is a matter of

general importance and this Court should grant

special leave.

DAWSON J:  Thank you, Mr Gillard. Mr Nash.

MR NASH:  If the Court pleases, two preliminary points:

first, the provisions are not Australia wide, that

similar sections do exist in at least two other

States. Secondly, the argument that Hoffman's

decision is incorrect is one that was not raised

before the Full Court and it is not appropriate for

this Court to give special leave to argue a point

that was not contended below.

In our submission, the proposed appeal does

not raise any question of general principle or of

general public importance. First, the application

is an application to appeal in relation to what is

ultimately a question of fact, that is if Hoffman's
case is correct, contrary to what is stated in the

affidavit at page 49 of the application book,

namely, the decision in:

Hoffman is wrong. The appeal ..... is by way

of a rehearing and it is not a question of

considering whether it is open to the tribunal

to make the finding that it did.

In our submission, such a proposition has no basis

in law.

TOOHEY J: Well, that argument is not being put, Mr Nash.

MR NASH:  What has been put, with respect, Your Honour, is

that ground 4 is that the decision in Hoffman

should be reconsidered.

TOOHEY J: Yes, but I did not understand Mr Gillard to be

putting the argument in terms of the affidavit.

MR NASH:  No, Your Honour, he did not put it - - -

Abbott 21 7/9/90

TOOHEY J: And the question really is whether there is

evidence upon which the court and originally the

tribunal could have reached its decision. If there was not, then there is a question of law; if there
was then, I suppose, there is no question of law

unless some principle was misapplied or some wrong

principle was applied.

MR NASH:  In that case, Your Honour, I apologize. I

obviously misunderstood what my learned friend was

putting.

TOOHEY J: Well, maybe I did, I am not sure.

MR NASH:  If he was putting what Your Honour has put to me,

well then there is no issue between us on that

point. But, secondly, the definition, which is the

subject-matter of the proposed appeal, is no longer

in operation in that section. It ceased to operate

on 24 May 1988 and so far as we can ascertain,

there are no matters before the Administrative

Appeals Tribunal or before the Full Court dealing

with that interpretation. The legislature in its
wisdom has changed the definition so that this

Court will, no doubt, in the future have to worry

about what is meant by "arising directly or

indirectly out of the driving of a motor vehicle". Thirdly, the concept, the subject-matter of

the proposed appeal, that of arising out of the use

of a motor vehicle, has been considered by this

Court twice in 1960, once in 1965, once in 1966,

once in 1973, once in 1984 and lastly, in 1987 in

Dickinson's case. In our submission, there is no

occasion to ~ook at this question again.

The decision of the Full Court is not attended with doubt or sufficient doubt to justify special

leave. The unanimous decision of the court is

consistent with and follows the various decisions

in Harvey Trinder to which my learned friend has

adverted.	The reasoning is consistent, in our
submission, with every decision reached in relation

to the concept. If I can stop there and move

sideways. The decisions of this Court and of other

courts have made it clear that the mere fact that a
vehicle is not mobile at the time is irrelevant.
Dickinson's case is possibly the classic example.

But they also make it clear, in our submission,

that when one talks of something "rising out of the

use of a motor vehicle", one is talking of

something that arises out of the use of the motor

vehicle qua motor vehicle - not necessarily

associated with its mobility. A person can be

sitting as a passenger in a motor vehicle but in

Dickinson's case, for example, if the child who was burnt had not been sitting as a passenger in the

Abbott 22 7/9/90

motor vehicle but the parents had told the children

to go out and play; it had been raining and the

children climbed into the car to get out of the

rain and then found the matches, the situation

might well have been different.

TOOHEY J: Well, would you seek to support this decision of

the Full Court in terms of categorization?

MR NASH:  Yes, Your Honour, because - although the

expression has not been used in any of the other

cases, when one looks at what has actually been decided, the Court in every case has looked and

said, "What sort of motor vehicle is this?" In the

Harvey Trinder - - -

TOOHEY J: But that may be necessary because of the sort of

machine you are dealing with.

MR NASH:  Yes, Your Honour.

TOOHEY J: But there is no doubt about the fact this is a

motor vehicle.

MR NASH:  No doubt it is a motor vehicle.

TOOHEY J: So, what assistance do you get or does anyone get

from speaking in terms of categorization?

MR NASH: Categorization is relevant, Your Honour, to decide whether the use out of which the incident arises is

a use qua motor vehicle and Harvey Trinder perhaps

illustrates the borderline in a sense. In Harvey Trinder there was a mobile crane. If that mobile crane had been operating as a crane, in our

submission, the result at every level would have

been different, but it was a machine which was a

vehicle which was designed for a particular use.

Any use that arises out of or is incidental to and

not foreign to that use, qua vehicle, is a use of

the vehicle as a motor vehicle.

TOOHEY J: Well, I understand the idea of inquiring as to

whether the motor vehicle is being used as a

vehicle but in a case where you have something that is obviously a motor vehicle, I do not see a lot of point to be gained by trying to categorize what it

is. It is what it is, it is a motor vehicle.

MR NASH:  Yes, Your Honour. The only assistance, with

respect, that the categorization test provides, is

that if - and perhaps the example that was raised

by Justice Dawson, namely, the car phone poses the
problem nicely in one sense. Clearly, the vehicle

is not a mobile car phone but there could be a use

of the car phone in connection with the car which

Abbott 23 7/9/90

would none the less be a use of the car in its

normal use as a passenger vehicle.

There is the trip-wire that is mentioned by

Mr Justice Windeyer in one of the cases. He says

that if I tie a wire to my motor vehicle with the

intention of a passer-by tripping over, then that

is not a use of the motor vehicle although, quite

clearly, it is a use of the physical thing which is

the motor vehicle, and the categorization test

assists, in our submission, in distinguishing

between whether the use is a use of this vehicle as

a motor vehicle or not.

If this vehicle had been, for example - I

presume, Your Honours, that there is such a thing -

had been a mobile winch, then quite clearly the

winching down of the tree would have been a use of

the vehicle, qua vehicle, and therefore would have

fallen within section 3.

TOOHEY J: Well, say it had been operating from a power

take-off?

MR NASH:  If the reasoning of the New South Wales Court of

Appeal in Harvey Trinder - I think Mr Justice

Sugerman, in particular, Your Honour - is correct,

then that would be, with respect, a dangerous

conclusion to draw because you might have your

Landcruiser which you are using for some reason to

power a lathe in your home workshop and that would,

in our submission, quite clearly not be a use of

the motor vehicle, qua motor vehicle.

DAWSON J: But you might characterize the motor vehicle as

not just a plain motor vehicle but also as a power

unit. I mean, where you have a tractor with a

power take-off, it is a very important function;

it drives the thrasher, it drives all sorts of

things.

MR NASH:  And that was the reason, Your Honour, I

example because there, we would submit, it would	specifically avoided using the tractor as an
probably fall on the other side of the line.

TOOHEY J:  It is very easy to multiply examples though and

arrive at all sorts of conclusions but if you just

take the words at their face value, "arising out
of" or "the use of a motor vehicle", did this
accident occur or did this incident occur arising
out of the use of a motor vehicle? You might say,
yes or you might say, no, but I am not sure if the

Full Court approached it in that way.

MR NASH: Well, the issue before the Full Court, in our

submission, was not whether it did or did not arise

Abbott 24 7/9/90

out of the use of a motor vehicle but whether the

tribunal at first instance could have reached no

other conclusion than that it did arise out of the

use of a motor vehicle. Was there evidence - or,

if one wishes to put it another way, was there any

evidence upon which the tribunal could reach the

conclusion that it did not arise out of the use of

a motor vehicle.

The Full Court was not required to did not

determine the issue of, "Did it or did it not arise

out of the use of the motor vehicle?" It

determined merely the question of law that was

before it.

DAWSON J:  I note it is pointed out in Hoffman, there is no

satisfactory intellectual test, really, to

determine that question. In the end, that is the

question to be determined and there you are.

MR NASH:  But we say that the Full Court did not misdirect

itself, that its reasoning, in fact, is the

reasoning of Mr Justice Jacobs at first instance in

Harvey Trinder. Of the three judges of the

New South Wales Court of Appeal, leaving to one

side the question whether one specifically uses the

word "categorization" - - -

TOOHEY J: Mr Nash, can I ask you this: what did the

Full Court in fact determine? Did it determine

that there was no right of appeal because there was

no question of law or that there was a right of

appeal but that the tribunal was right in the

decision it reached?

MR NASH:  On our understanding, Your Honour, the Full Court

determined that the tribunal below was entitled to

reach the decision which it did on the evidence

before it; that one could not say that there was no

evidence to support the decision below.

TOOHEY J: Therefore, the appeal should have been dismissed

as incompetent.

MR NASH:	It was not dismissed as incompetent because - - -
TOOHEY J:	No, but that would be the logical consequence,

would it not?

MR NASH:  Yes, and Your Honour will note that

Mr Justice Crockett, at the beginning of his

judgment, effectively makes that point and then

goes on to treat the appeal as, in fact, before the

court and find that the tribunal below could not be

said to have decided in the face of the evidence,

and I am paraphrasing, Your Honour.

Abbott 25 7/9/90

In our submission, the decision, including the

use of the categorization test, is consistent with

every decision that has been handed down on this

question. There is no question of general

principle involved and there is no basis on which,

on the argument before the Full Court, the decision

in Hoffman itself can be challenged. Therefore, in

our submission, there is no ground for special

leave.

DAWSON J:  Thank you, Mr Nash. Mr Gillard?

MR GILLARD: I have nothing further to say, Your Honour.

DAWSON J:  Mr Gillard, is it true that section 52 of the

Administrative Appeals Tribunal Act has been

amended?

MR GILLARD:  No, not that provision, Your Honour, it is the

other one.

DAWSON J: Which is it?

MR GILLARD:  Section 3 of the Transport Accident Act but,

Your Honours, that provision about "arising out of

the use of a motor vehicle", of course, is found in

other legislation in this State: the Motor Car Act

and various other places and it is a phrase that

has been the subject of much discussion. That is

correct, Your Honour, "Transport accident" was

amended, I think, last year or the year before

and - - -

DAWSON J:  What does it say now?

MR GILLARD: It now says:

"Transport accident" means an incident

directly caused by, or directly arising out

of, the driving of a motor car or motor

vehicle.

DAWSON J:  By a majority, special leave will be refused. As

in the previous case, this application does not

raise any question of principle; rather, it

involves the application of the relevant

considerations to particular facts. Special leave

is refused.

MR GILLARD: If Your Honour pleases.

MR NASH:  We would ask for costs, if the Court pleases.

Abbott 26 7/9/90

DAWSON J:  Mr Gillard?

MR GILLARD: Nothing to say, Your Honour.

DAWSON J: With costs.

AT 3.21 PM THE MATTER WAS ADJOURNED SINE DIE

Abbott 27 7/9/90