Allianz Australia Insurance Ltd v GSF Australia Pty Ltd & Anor

[2004] HCATrans 370

[2004] HCATrans 370

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S247 of 2004

B e t w e e n -

ALLIANZ AUSTRALIA INSURANCE LIMITED

Appellant

and

GSF AUSTRALIA PTY LIMITED

First Respondent

GARRY DAVID OLIVER

Second Respondent

McHUGH J
GUMMOW J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 1 OCTOBER 2004, AT 10.05 AM

Copyright in the High Court of Australia

MR K.P. REWELL, SC:   If the Court pleases, I appear with my learned friend, MR P.S.L. DOOLEY, for the appellant in that matter.  (instructed by TL Lawyers)

MR L. KING, SC:   I appear with MR J.W. CATSANOS for the first respondent, may it please the Court.  (instructed by Blake Dawson Waldron)

McHUGH J:   The Deputy Registrar has certified that she has been informed by the solicitor for the second respondent, Garry David Oliver, that the second respondent submits to the order of the Court save as to costs.  Yes, Mr Rewell.

MR REWELL:   The position of the second respondent was protected following the special leave application.  May I briefly acquaint your Honours with the facts in the matter which are straightforward.  On 12 February 1998 the second respondent, Mr Oliver, was an employee of the first respondent, GSF Australia.  He turned up at work to find that a specially modified truck owned and operated by the first respondent had a mechanical problem.  The truck was used for the purpose of conveying airline containers to and from the airport in Sydney and the depot of GSF Australia. 

It had been modified in two ways for the specific purpose of taking all manual effort out of the loading and unloading of airline containers.  Firstly, the floor of the rear of the truck had rollers installed on it.  Secondly and more importantly, a T‑bar mechanism was installed in the rear of the truck which was able to mechanically push airline containers to the very back of the truck from which they could be removed by a forklift truck.  The result was that the only manual effort required, when these mechanisms were operating, by a person in the position of the second respondent, was to push a button.  Regrettably, on the day before Mr Oliver’s accident, the T‑bar mechanism had broken down.  That meant that there was no mechanical means of pushing airline containers to the very back of the truck from which they could be lifted out by a forklift.  The truck was loaded.

Despite the availability of other alternatives which I will come to later, the direct employer of Mr Oliver ordered him and a colleague to transport the load to the airport and there to manually remove the airline containers using crowbars, in other words, to get them to the back of the truck by levering them.  The airline containers weighed in excess of one tonne each.  Almost inevitably Mr Oliver suffered an injury to his back trying to lever the containers out of their positions.  There was never any difficulty, so far as he was concerned, in establishing liability.  Indeed, the case was settled so far as it concerned him.

The issue always was, from the District Court onwards, and remains, whether this incident falls within the provisions of the Motor Accidents Scheme in New South Wales and, in particular, whether the injuries suffered by Mr Oliver falls within the definition of that word in section 3 of the Motor Accidents Act 1988.

GUMMOW J:   Which is the correct reprint?  I have number 7.  Is that ‑ ‑ ‑

MR REWELL:   I do not know, your Honour.  Can I tell your Honour this, the Act itself has been repealed and replaced by the Motor Accidents Compensation Act 1999.

GUMMOW J:   Yes, we saw that from Mr King’s submissions.

MR REWELL:   But the operative definition is identical and it remains the gateway to the Motor Accidents Scheme, so the significance of the whole issue is completely preserved.

Now, your Honours, the decision of the trial judge was that the definition in the Motor Accidents Act was satisfied.  The decision of the Court of Appeal of New South Wales by a majority of two to one was that the definition was satisfied although the judges in the majority, President Mason and Acting Justice Davies, took quite different approaches to reach the same conclusion.  The dissenting justice, Justice Santow, firmly took the view in a lengthy judgment that the incident did not fall within the definition because it could not be said in any commonsense fashion that Mr Oliver’s injury was as a result of, or caused by, the defect in the vehicle.

GUMMOW J:   It may be a consequence in some sense.

MR REWELL:   I am going to come to that, your Honour, because so that I do not traverse unnecessarily old ground in this Court, I will take the Court to its decision in Insurance Commission of Western Australia v Container Handlers.  Not all of your Honours, I think, sat in that case but it was decided on 26 May and considered similar but different provisions in the corresponding Western Australian Act, which is the Motor Vehicle (Third Party Insurance) Act 1943 (WA).

The relevant statutory provisions in Western Australia, and I will start with them to point out the differences in New South Wales, are set out in the judgment of Justice McHugh starting at paragraph [12].  They also appear in other judgments of other Justices.  There were two operative phrases in the Western Australian legislation, neither of which directly corresponds to the New South Wales legislation but both of which are informative.

The first, a matter just raised by Justice Gummow, appears in section 3(7) set out at the beginning of paragraph [12] of Justice McHugh’s judgment. There one sees the expression “a consequence of” and his Honour Justice McHugh analysed those words, and I will come to that in a moment. In the next two sections, 4 and 6, the operative expression is “directly caused by”. So those were the words that required significant interpretation in the previous case heard by this Court.

Importantly, all Justices of this Court were prepared to take into account, in arriving at a construction of those words, the second reading speech made in the Western Australian Parliament in 1987, which was when these definitions were introduced in that State.  Justice McHugh sets out the second reading speech, or the relevant parts of it, in paragraph [14] of his Honour’s judgment, and the importance, so far as the present case is concerned, is that firstly the Court found it appropriate to take into account the second reading speech and, secondly, the Court found from the second reading speech a specific and deliberate legislative intention to amend the relevant sections so as to limit the scope of the Motor Accidents Scheme in Western Australia; undoubtedly, as his Honour Justice Kirby pointed out, for the purpose, partly political, of keeping premiums under control or perhaps reducing them.

I take your Honours to those sections and to that second reading speech for a reason, and that is, firstly, to contrast the Western Australian provisions with those with which we are concerned today, namely, the provisions of section 3 of the Motor Accidents Act 1988. If your Honours turn to page 64 of the appeal book, your Honours will find the appropriate provisions set out in the decision of Justice Santow. I want to spend a moment taking your Honours to the relevant word. As I said by way of introduction, the key here is the definition of the word “injury”. This is the gateway to the Motor Accidents Scheme in New South Wales.

GUMMOW J:   Tell us what your construction is of the definition.

MR REWELL:   Well, your Honours, can I point to the relevant words perhaps. 

GUMMOW J:   Yes.

MR REWELL:   Three relevant phrases, we would submit.  First, the words “if and only if”; we say those words add emphasis to the words that follow.  Secondly, the words “a result of”; we say that the construction of those words should be precisely the same as the construction of the words “a consequence of” in the Western Australian legislation considered earlier this year. 

GUMMOW J:   Now, President Mason took the view that it was significant that it said “a” and not “the” result. 

MR REWELL:   Yes, I will come to that.

CALLINAN J:   Is not the key word “such” in (iv), whether “such” refers to clauses (i), (ii) and (iii) or whether it refers generally to use and operation in the introductory paragraph? 

MR REWELL:   Your Honour, that is not the point of this appeal.  That point was taken in a case in the New South ‑ ‑ ‑

CALLINAN J:   But we have to construe the section, no matter what you say the point of the appeal is.

MR REWELL:   Yes, but that word, with respect, will not come into the question of construction relevant to this appeal.

CALLINAN J:   Why not?

MR REWELL:   Your Honour, in a case in the New South Wales Court of Appeal called Zurich Australian Insurance Limited v CSR Limited ‑ ‑ ‑

CALLINAN J:   Are you referring to the Chief Justice’s judgment in that case?

MR REWELL:   Yes.  The argument was run ‑ ‑ ‑

CALLINAN J:   We are not bound by that.

MR REWELL:   No, I understand that, your Honour.  The argument was run that the word “such” confined the operation of (iv) to circumstances in which one of (i) to (iii) had occurred.  That argument, which I was part of promoting, was defeated and remains defeated, and we have not reopened it.

CALLINAN J:   I do not care whether you have reopened it or not.  I have to construe the section.

MR REWELL:   Yes, your Honour.

CALLINAN J:   And you cannot construe the section, so far as I am concerned, by ignoring words in it.  They have to be given meaning.

MR REWELL:   Your Honour, the argument that we put forward in Zurich v CSR was that when one reads the sections and particularly the word “such”, the meaning of (iv) is to confine the operation of the defect provisions to circumstances in which a vehicle was either being driven, had a collision or ran out of control, which would have ‑ ‑ ‑

CALLINAN J:   And that would be a construction totally consistent with the second reading speech.

MR REWELL:   That was our argument, yes, your Honour, and it would, of course, defeat ‑ ‑ ‑

CALLINAN J:   I just put you on notice that I do not regard myself as bound by what Chief Justice Spigelman said in another case.

MR REWELL:   Your Honour, I am happy to repeat that argument here and to rely on it because it would obviously, if successful, result in my client succeeding in this appeal.

GUMMOW J:   Just tell me how it would bring you home.

MR REWELL:   Because the vehicle concerned in the present case was neither being driven nor involved in a collision, nor was it running out of control at the time of Mr Oliver’s injury.  None of those matters is disputed.  I do not think Mr King would dispute that if the construction of (iv) is as I have just submitted to Justice Callinan, then the appeal must succeed.

GUMMOW J:   What is the construction that was successful in Zurich?

MR REWELL:   That the word “such” related to the words “use or operation” in the second line of (a).  Your Honours see that:

injury:

(a)      means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle –

To assist Justice Callinan, the reason why “use or operation” became important is because the courts in New South Wales have held that use or operation includes loading and unloading.

CALLINAN J:   No doubt in the ordinary sense it would in a vehicle specially adapted for that purpose, as this one was, but that does not answer the question as to what “such” qualifies or refers to.

MR REWELL:   Your Honour, if I can put both sides of the argument succinctly, if the word “such” qualifies only the words “use or operation” in line 2 of subsection (a), then it does not assist me in this appeal.  If it qualifies (iv) so as to limit it to (i) to (iii), then the appeal must succeed.

CALLINAN J:   The starting point must be surely that there is some doubt about this.  It is not crystal clear.  Then the Acts Interpretation Act – is it section 34?  I have forgotten.

MR REWELL:   I think so, your Honour, yes.

CALLINAN J:   Section 34 of the New South Wales Act directs attention to the second reading speech and the second reading speech specifically disavows loading accidents.  The Minister also said in the second reading speech that it is intended to deal with movement of vehicles.

MR REWELL:   Yes, your Honour.

CALLINAN J:   Over years the courts have interpreted the policy of providing for a wide range of:

injuries sustained during the loading and unloading of vehicles, and injuries sustained while standing on the back of a stationary trailer . . . 

It is therefore proposed to amend the definition of “injury” to adopt an approach similar to that taken in Queensland, South Australia and Western Australia ‑ ‑ ‑

MR REWELL:   Your Honour has expressed the argument that we expressed in Zurich and your Honour has expressed it perhaps better, but the upshot in Zurich was that Chief Justice Spigelman found that little assistance was to be provided by the second reading speech.

CALLINAN J:   I do not know how he could possibly say that, with all due respect.  Nothing could have been clearer.

MR REWELL:   Your Honour, the decision went against us.  We sought special leave in Zurich v CSR but were unfortunately unable to obtain special leave.  I am happy to reargue the position here if I am permitted to do so because ‑ ‑ ‑

CALLINAN J:   I am just saying my position is that I will construe the section.

MR REWELL:   Thank you, your Honour.

CALLINAN J:   And I will construe it if I have to having regard to what section 34 of the New South Wales Interpretation Act tells me I should have regard to.

MR REWELL:   Your Honour, the other Justices have no doubt heard the substance of that argument and I probably do not need to go any further into it.  Your Honour has expressed the argument better than I could have, so may I put the argument now.

GUMMOW J:   Is the argument the other way – well, I do not know, really – that driving a vehicle is using and operating it?

MR REWELL:   So is a collision and so is running out of control, but so, under New South Wales law, is loading and unloading.

McHUGH J:   The difficulty of the argument is that the construction for which you contended in Zurich would make subparagraphs (i), (ii) and (iii) irrelevant, would it not?  On your hypothesis, (iv) would mean:

during: 

(i)       the driving of the vehicle . . . by a defect in the vehicle –

during: 

(ii)      a collision . . . by a defect in the vehicle ‑ ‑ ‑

MR REWELL:   Yes.  The argument we ‑ ‑ ‑

McHUGH J:  

during: 

(iii)     the vehicle’s running out of control . . . by a defect in the vehicle –

So (i), (ii) and (iii) would be superfluous and redundant.

MR REWELL:   The argument we put forward in Zurich was that while the words may not strictly have been necessary, they were there for the express purpose of making it perfectly plain what “use or operation” was to mean, consistent with the second reading speech.  The Parliament wanted to make it ‑ ‑ ‑

HAYNE J:   Why is it any more than “faulty use or operation”? The first two lines are: 

injury caused by the fault . . . in the use or operation . . . such use or operation –

is faulty use or operation. 

MR REWELL:   Your Honour, that is an available construction. What we contended in Zurich was that (iv) was intended to pick up cases such as those involving a brake failure, where a collision or running out of control or a manner of driving might occur because of some mechanical failure resulting in a defect in the vehicle.  That was the contention that we made in Zurich.  On that basis, we said that Parliament wanted to make perfectly clear what was included in “use or operation” and what was not, and that is why (i) to (iv) were specifically set out.

We also in that case argued that the vehicle did not have a defect.  That part of the judgment can be ignored for these purposes, although it occupied some space.  It can be accepted that, as the law is now understood, the vehicle in Zurich had a defect, but we ran precisely the argument that Justice Callinan has formulated. 

Can I, by way of an alternative argument, then return to the argument with which the Court of Appeal in this case was concerned.  There are three things about the words that I read a moment ago in subparagraph (a) that we say must be emphasised. 

GUMMOW J:   “[I]f, and only if”, “is a result of”, and what is the third? 

MR REWELL:   The third one was the words “is caused”.  Now, the word “during” and then the words “such use or operation” are a distraction.  If one pays no attention to those words for the moment, one is left with:

if, and only if, the injury is a result of and is caused . . . by a defect in the vehicle ‑ ‑ ‑

HAYNE J:   If the section read differently, we would no doubt have much more fun construing it, but can we construe these words, not chop words out, substitute other words?  Yes, of course, if you ignore words, the problem goes away. 

MR REWELL:   Well, the problem does not go away, but the problem becomes clear, with respect, your Honour.  I would not dare to substitute words, but I have asked your Honours ‑ ‑ ‑

HAYNE J:   You just have, Mr Rewell, you have said “caused by”.

MR REWELL:   The words “caused by” appear, your Honour.

HAYNE J:   “[I]s caused during”.

MR REWELL:   Yes, and continue:

such use or operation by a defect –

So, one may fairly, with respect, say that the test is “caused by”.  That is the third thing I wanted to emphasise.  May I also emphasis the word “and” which separates the expression “a result of” and the expression “is caused . . . by a defect”.

The Court of Appeal paid no regard to the cumulative effect of the use of the word “and”.  Indeed, it is fair, I think, to say that President Mason treated the expression “a result of” and the expression “is caused by” as meaning exactly the same thing, and we say they do not.  They mean different things with cumulative effect, emphasised by the words “if, and only if”.  Now, can I ask your Honours also to note that the words “a cause” do not appear.  President Mason used those words interchangeably with “a result of” but, in fact, the words “a cause” do not appear at all.  They were used again in the special leave application in this matter, but it is not correct to use them.

So, your Honours, the effect of this definition, in summary, is that the gateway to the Motor Accidents Scheme in New South Wales is only satisfied, with the emphasis given by the words “if, and only if”, if an injury is both – and I emphasise both – a result of and is also caused by a defect in a motor vehicle.  Now, in this way Parliament gave great emphasis to the concept of causation.  That is absolutely consistent with the second reading speech in which the Attorney‑General forecast that that was exactly what Parliament intended to do.  In the last paragraph quoted in the judgment of Justice Santow on page 70 of the appeal book – and it has already been read, I think, by one of the other justices – the Attorney‑General said:

It is therefore proposed to amend the definition of “injury” to adopt an approach similar to that taken –

inter alia in Western Australia, I emphasise –

where “injury” is qualified in terms of its cause.

Now, the Attorney‑General made it perfectly plain that that was the object of the exercise and the words ‑ ‑ ‑

McHUGH J:   But the drafting is most unfortunate.  It suffers from the same defect of which I complained in the Insurance Commission of Western Australia Case.  An inanimate thing, still less an abstract term such as “defect”, cannot cause anything.

MR REWELL:   Yes, your Honour.

McHUGH J:   Human beings cause things and maybe natural disasters can cause things, but defects do not cause things in any real sense.

MR REWELL:   I read your Honour’s analysis of that difficulty and, with respect, completely agree with it.  At paragraph [18] I think your Honour summarised the difficulty in blaming things on inanimate objects.  Perhaps that is at the core of what led the majority of the Court of Appeal into error here.

McHUGH J:   Well, the President seems to have jumped directly from his construction of “a result of” to the conclusion that it meant that it was then caused by.

MR REWELL:   Yes.

McHUGH J:   Your point is that – I think you may resist this, but it seems to me that it is certainly arguable that this injury was a result of the defect.  It is another thing altogether to say that it was caused by the defect or the defect caused it, any more than you can say that the fact that they did not use a crane to do the job caused the injury.

MR REWELL:   Well, your Honour, I will not concede that the respondent gets as far as it being a consequence or a result of the defect in the truck but I certainly adopt what your Honour next said, that even if this Court were to regard Mr Oliver’s injury as “a result of” the defect in the vehicle, it is certainly not, on any view, we would submit, caused by the defect.  I will go into that in more detail.  May I stay though for a moment with analysing the differences between this case and Container Handlers because that will prevent us having to repeat anything that was dealt with in Container Handlers. 

As I have already said, the two operative expressions in Container Handlers were “a consequence of” and “directly caused by”.  Now, it is true that the word “directly” does not appear before the word “caused” in the New South Wales legislation, and no doubt that is a fact upon which Mr King will rely.  It is our overall submission that when one construes properly the New South Wales provisions, there is no material difference in the outcome caused by the omission of the word “directly”. 

We say there are two overall reasons for that.  Firstly, it is absolutely plain from the second reading speech that the words “a result of” and “is caused by” should be interpreted as if the word “directly” appeared before the word “caused”.  Secondly, the approach of this Court, in any event, in construing the Western Australian legislation did not turn solely on the fact that the word “directly” appeared. 

Now, your Honours, the Western Australian legislation, as I have pointed out, contains the words “a consequence of”.  Now, Justice McHugh dealt specifically with the construction of those words in the paragraphs commencing with the second part of paragraph [59] of his Honour’s judgment and concluding in paragraph [67] of his Honour’s judgment.  Now, your Honour Justice McHugh cited a number of different authorities, including, in particular, Dickinson, in which these or similar words were concerned, but the operative matter comes in paragraph [66] of the judgment.  Your Honour said there:

The mere fact that Mr Sutton’s injury would not have occurred if the vehicle had not been driven . . . does not mean that, for the purpose of the Act, the injury to Mr Sutton was a consequence of the driving of the vehicle.  The use of the vehicle to transport a heavy crane and a mine transport truck on bad roads was a necessary pre-condition for the sustaining of the injury.

May I say here, as events turned out, the break down of the T‑bar mechanism, the defect, was a necessary precondition.  Your Honour went on to say:

However the injury was not a consequence of any feature of the driving of the prime mover and its attached load.  The injury was not a result or effect of some feature of the driving of the vehicle.

Now, here we would invite your Honours to substitute the word “defect” for the word “driving”.  Now, we rely, as your Honour Justice McHugh did, on Justice Taylor’s remarks in Butler which your Honour rightly said are instructive, and this is really pivotal to the present appeal:

[T]he cause of an event is not established in the legal sense by showing, without more, that in the absence of a proved set of circumstances the event would or may not have happened, or, that a proved set of circumstances, in the widest sense, contributed to the happening of the event. 

If one puts that in the context of the present case, it is not sufficient, and this is the error made by the majority of the Court of Appeal, it is simply not sufficient to establish causation at law to show that Mr Oliver’s injury would not have happened if the T-bar mechanism of the truck had not broken down or, for that matter, if the truck had not been used in a broken‑down state.  It is not sufficient.  You need more to show causation of one by the other.

GUMMOW J:   Now, what is the more?

MR REWELL:   The more, of course, that would need to be shown was that the injury was in a proximate way related to the breakdown.  Can I make our position perfectly clear?  There is no doubt at all that this injury to Mr Oliver would not have happened if the employer had done what the employer should have done which was one of two things, either not to use the vehicle in an unloading sense until the mechanism was repaired, that was the obvious alternative.  If that, for some reason was impractical, if for some reason the matter was urgent, then there were obvious mechanical means of loading the vehicle; for example, by putting straps around the airline containers and hauling them out using a forklift truck.

Now, those two alternatives were patently obvious but the employer chose a method which made an injury of Mr Oliver almost inevitable; that was the use of the crowbars.  So, what we say, in essence, is that that grossly negligent instruction made by the employer made the existence of the defect so remote from the injury of Mr Oliver that in no way could it be said to be a result of, much less caused by, much less a combination of both as is required, of the defect.  But we rely on what your Honour Justice McHugh said and cited in paragraph [66], with respect, to show that this is exactly where the Court of Appeal went wrong, in particular Acting Justice Davies who took the view that if the breakdown of the T-bar mechanism was a link in the chain, well that was good enough.

GUMMOW J:   Where does his Honour say that?

MR REWELL:   I will find it, your Honour.

McHUGH J:   It is paragraph 71, is it not, in the last line?

MR REWELL:   Yes, I am obliged to your Honour, thank you, paragraph 71, at the end of that paragraph.  He says:

In a case where subparagraph (iv) of the definition applies, the defect will form part of the chain of events which led to the injury and will be one of the factors constituting the fault of the owner or driver.

Well, that statement, with the greatest of respect to his Honour, we would submit, could not be more wrong.

GUMMOW J:   And did the President approach it differently?

MR REWELL:   The President focused on the words “a result of” and as I say ‑ ‑ ‑

GUMMOW J:   Yes, and you say he jumped over “cause”?

MR REWELL:   Yes.

GUMMOW J:   And where is that most apparent?

MR REWELL:   I can show your Honour where it is most apparent.  It is most apparent ‑ ‑ ‑

McHUGH J:   It is paragraphs 15 and 16.

MR REWELL:   Thank you, your Honour, paragraphs 15 to 16.  Your Honour will see in paragraph 16, his Honour used the words “a cause” and reading it together with paragraph 15 those words have been used interchangeably with “a result of.”  So far from giving the words different meanings as was required and far from giving them cumulative effect as was required, his Honour did neither and treated them as if they were a single expression and that as your Honour said, is where the President jumped the necessary test.

It would be our submission that the decision would be wrong anyway, even if the only words that appeared were “a result of”, but the decision becomes clearly wrong, we would, with respect, submit, when the other expression and the cumulative word “and” appear.

Now, your Honour, in Container Handlers, just to stay with that case for the moment, in paragraphs [77] and [78] Justice Gummow extracted some words from Dickinson and from GIO v R J Green & Lloyd, which we say also impact on the correct legal approach to be taken in this case.  Extracting from Dickinson, Justice Gummow quoted the judgment of five Justices in saying, if I could go to the second sentence:

The test posited by the words “arising out of” –

which no longer appear in the Act –

is wider than that posited by the words ‑ ‑ ‑

GUMMOW J:   When did those words go out?

MR REWELL:   In 1989 retrospective to 1987 in New South Wales.

GUMMOW J:   Can we have the reference to that?  It is not insignificant.

MR REWELL:   The Motor Accidents Act disposed of those words, your Honour.  They appeared in the Motor Vehicles (Third Party Insurance) Act 1942 and remained in the Act until 1989. There was a transition in New South Wales between July 1987 and June 1989 when a Transcover scheme was in effect which eliminated the right to sue for common law damages in motor accidents. The Transcover scheme was disposed of when the Motor Accidents Act was introduced effective from 1 July 1989, and that provided a right to persons injured in the previous two years to sue at common law.  The Motor Accidents Act from the outset got rid of the words “arising out of”.  I noticed that the same thing happened in Western Australia in 1987.

So, firstly, the quote from Dickinson emphasises that the words “caused by” are stronger than the words “arising out of” and more limited.  In paragraph [78] Justice Gummow points out that these words in Dickinson echoed something said by Justice Windeyer in GIO v R J Green & Lloyd, and we rely upon also what his Honour said in that case, that there is effect to be given to the words “caused by”.  This is why they mean something different from the words “a result of”, a matter which escaped the Court of Appeal.

Your Honours, we simply say that the directness or proximity – those words are sometimes unpopular – that is implied by the use of the word “caused” means that in this case one could not possibly have said that Mr Oliver’s injury was “caused by” the breakdown of the T‑bar mechanism.  It also means that one would ordinarily, in any event, apply or imply an effect similar to the use of the word “directly” in the Western Australian legislation, even in the absence of that word.

Now, as I have said, in the Court of Appeal President Mason focused him on the words “a result of” and, as we have said, his Honour made, in doing so, two errors:  firstly, that his Honour overlooked the impact of the words “caused by”; and, secondly, his Honour treated “cause” as being the same as “result”.  Acting Justice Davies, in applying his chain of events theory, really took the position back to the “but for” test, which has been long rejected.  If it were correct that any one of the events in the chain which led to the worker’s injury was to be regarded as a cause of what occurred to the worker, we would be back to the “but for” test, and that approach is plainly wrong.

It is critical in these cases to look at the legislative purpose and I know Justice Callinan has a firm view of the legislative purpose and it is well justified by the second reading speech.  In Container Handlers Justices Kirby and Heydon dealt thoroughly with the legislative purpose of the Western Australian Parliament, which frankly was exactly the same as the purpose of the New South Wales Parliament, it introducing the 1995 amendments that give rise to the definition we are concerned with.

Justice Kirby dealt with the Western Australian legislation’s legislative history in paragraphs [101] through to about [105], but pivotal probably is paragraph [102] where his Honour’s analysis of the legislative purpose in Western Australia is exactly the same as that which plainly underlies the 1995 amendments in New South Wales.  His Honour said:

Because there are so many motorists, obliged by the Act to obtain third party policies, the reduction or containment of insurance premiums became an electoral issue.

There is no doubt that that is correct –

The limitation of the scope of the indemnity provided by the policy was clearly deliberate.

Justice Callinan has pointed out that that is also the case here –

Necessarily, it would sometimes leave persons unprotected whose injuries arose out of the use of a motor vehicle who would have been protected by the Act in its earlier form.  However, that was no more than the necessary consequence of the change in the legislation.

That, with respect, is an absolutely apt summary of the events which took place in New South Wales in 1995 when these amendments were introduced.

CALLINAN J:   The President seemed to be concerned that there might be a case in which the contest was not between two insurers, and he allowed that to infect his approach to the construction of the definition.

MR REWELL:   Yes.  We say two things about that.  Firstly, that was an error in principle.  The fact of whether insurance cover may or may not ultimately have been available to a victim is not a relevant consideration.

CALLINAN J:   Well, if you can discern a legislative intent to that effect, that is perfectly orthodox.  But you cannot discern a legislative intent to that effect, and if the legislative intent, as expressed in a doubtful case in the second reading speech, is entirely different then it is completely inappropriate to approach construction in that way and it is an error of principle.

MR REWELL:   It is an error of principle.  In any event, any cases in which the victim is left without the benefit of some insurance policy will be very rare.  I do not deny that they can occur, but they will be rare.  The most common by far are the cases of the type that we are here to consider; that is, where there is a difficulty in discerning whether an accident falls under the Motor Accidents Scheme or the Workers Compensation Scheme.

CALLINAN J:   And you cannot overlook the possibility of public risk insurance.

MR REWELL:   As well.  So I am not denying that there may be cases where his Honour’s fears could be realised, but they will be rare and, as Justice Kirby said at paragraph [102], that is a necessary consequence of the legislative purpose.  Your Honours, in the transcript of the special leave application, I noticed that Mr King conceded that the purpose of the New South Wales Parliament in introducing the 1995 amendments was to include only unloading and loading cases where there was a genuine link to a motor vehicle.  That was page 7, your Honours, of the transcript.

HEYDON J:   Do you have a different pagination from us?  Mr King did not start until our page 8.

MR REWELL:   I am sorry, your Honour.

HEYDON J:   How soon was it after he started addressing?

MR REWELL:   My copy is neither paginated nor paragraphed.  It was some two pages – I think it is the second page of Mr King’s submissions, about a page and a half in.  Justice Callinan asked Mr King for a page reference and was given page 14.  Justice Kirby referred to page 39 of the application book.

GUMMOW J:   It is line 355 or thereabouts, page 9.

MR REWELL:   Thank you, your Honour.  One can see that the difference between us is a difference of degree.  We say that “genuine link” is not a particularly apt use of words because it omits the word “cause”.  If one was to say “genuine causal link”, then our approaches would be very similar.  Mr King over a couple of pages from where I previously quoted appealed to the Court on the basis of simplicity and does so again I think in his submissions.  That is to say, the approach taken by President Mason in particular but also Acting Justice Davies has some appeal because one can simply include almost everything where a motor vehicle is present.

That may be simple but it is simply wrong and it is also simply inappropriate, we would submit.  Justice Kirby pointed out in Container Handlers that all of the issues like this involve some form of line drawing, what is in and what is out.  Paragraph [116] of the judgment in Container Handlers begins:

Of course, each case of causation, including direct causation, depends on its own facts.  Line-drawing is inescapable in the determination of issues of causation for legal purposes.

That is a clear and accurate statement of the fact that no matter where the test and how the test is drawn, there will be borderline cases.  His Honour said in paragraph [118] right at the end:

Inevitably, borderline cases will continue to present.  However, this was not one of them.

We say in the present case exactly the same result follows.  There may be borderline cases, however the test of causation is formulated, but this is not one of them.

Your Honours, there seems to be a general consensus, both in the authorities and indeed in this case and indeed between the justices of the Court of Appeal, that what is required is a commonsense approach.

GUMMOW J:   Well, I have never accepted that.  I do not know what it means.  It is a classic case of a category of circuitous reference and indeterminate reference too.  What does it mean?

MR REWELL:   Well, it means, your Honour, that if there is in the ordinary ‑ ‑ ‑

GUMMOW J:   Common to whom?  I can understand when these cases are just decided by juries, but we are construing a statute here.

McHUGH J:   And, as I pointed out in my dissent in March v Stramare, what is common sense to a jury may only become apparent after they hear expert evidence concerning a connection, but that left to their own devices they just would never make any connection between two events.

MR REWELL:   There comes, however, a point where if a proposition appears to almost everybody to appear unarguable, then one might fairly call it commonsense, surely, otherwise the word is deprived of any meaning.

McHUGH J:   Copernicus got into a lot of trouble because of commonsense.

MR REWELL:   I know, your Honour, but he was still correct.

GUMMOW J:   It is commonsense for a particular dialectical purpose which is attribution of legal responsibility in a particular setting, and this particular setting is the Act.  Ordinary folk do not read this Act and apply commonsense to it.

MR REWELL:   I do not want us to get lost in debate over the meaning of that word.  Can I simply ‑ ‑ ‑

GUMMOW J:   I know.  You just want to invoke it.

MR REWELL:   Can I illustrate though what I mean by returning to the examples I gave ‑ ‑ ‑

GUMMOW J:   I think this sort of notion brings the law into disrepute myself, but anyhow.

MR REWELL:   Can I return, your Honour, to the illustrations that I gave earlier concerning what the employer might have done in order to avoid this injury because what I am trying to demonstrate is it was clearly the actions of the employer, on any view, commonsense or otherwise, that caused Mr Oliver’s injury and it is not either correct, rational or commonsense to apply any other cause to it.  As I pointed out earlier, there were alternatives available to the employer which, if adopted, would have removed any possibility of injury to Mr Oliver or to anybody else, but the employer specifically chose a course of action which made injury to Mr Oliver almost inevitable.  The formulation of the proposition in those terms, with respect, makes the error of the Court of Appeal self‑evident. 

May I conclude, your Honours, by returning to the legislative purpose.  As in the case of the Western Australian legislature, there is just no issue, nor is any issue taken by Mr King, that the purpose of the 1995 amendments to the Motor Accidents Act was to limit the scope of the Motor Accidents Scheme in New South Wales, that is, to limit the imposition upon those who paid premiums for compulsory third party insurance in New South Wales. 

What I want to illustrate, your Honours, by reference to a recent decision of the New South Wales Court of Appeal is that it has simply failed altogether to grasp or act upon the legislative intention.  Could I take your Honours to the case of Gunter v State Transit Authority.

The facts of the case were curious, but straightforward.  The plaintiff was standing on the footpath on George Street in Sydney.  A temporary bus stop sign had been erected on the footpath, but close to the curb.  A passing bus driver, presumably failing to observe the proximity of the sign, sideswiped it with his external rear-view mirror causing it to fall from its position and strike the plaintiff, injuring her.  Showing initiative, her lawyers prepared pleadings on her behalf in which no negligence was alleged against the bus driver, clearly in an attempt to avoid any limitations included in the Motor Accident Scheme as to damages.  The negligence was said to lie solely in the placement of the sign, because despite being placed on the footpath, the allegation was it was placed too close to the edge of the footpath or to the kerb.

So this was an effort to avoid the Motor Accident Scheme where it was thought to be advantageous to the plaintiff to do so.  The court was required to consider whether, in truth, this was a case concerning the fault of the bus driver and, not surprisingly, it found that it was, but in doing so the court made several statements about its view, that is the view of the New South Wales Court of Appeal, as to the current scope of the Motor Accident Scheme.  Those statements are instructive, because as I said, they show, with respect, that the Court of Appeal has failed to grasp the legislative intention of limitation of the scope of the scheme.  Paragraph 16 of the judgment, it is said:

When one looks at the history of the legislation the fact that the Act has the main objects of providing a universal scheme to provide compensation for compensable injuries sustained in motor accidents to achieve optimum recovery for persons injured in motor accidents becomes abundantly clear.

Well, that sort of language may have been appropriate before 1989.  It was less appropriate after 1989 and it is inappropriate after 1995.  Can I back that up with paragraph 33 in which the court says, dealing with the various schemes of damages:

There will always be problems when one has compartmentalised schemes of cases at the interface.  However, the scheme of the motor vehicles third party system and the way it has been interpreted over the last 50 years has been to give the Act wide scope and to apply “cause” in a commonsense way.

McHUGH J:   Yes, but Mr Rewell, we are concerned with this case and the construction of this Act.  What the court said in other cases with very different sets of facts and general statements ‑ ‑ ‑

MR REWELL:   All I am doing, your Honour, by this paragraph in particular is to illustrate that the court does not seem to have appreciated that there has been a change in the legislative intent during the last 50 years.

McHUGH J:   Well, the most you can establish is that that particular Bench did not ‑ ‑ ‑

MR REWELL:   Appreciate it.  Your Honour, with those words I will conclude.  If the Court pleases.

McHUGH J:   Thank you, Mr Rewell.  Yes, Mr King.

MR KING:   Your Honours, what I would like to do by way of reply to my learned friend is deal with what I take to be the planks in his argument and I will outline those and then, if I may, I will jump away from them and deal first with Justice Callinan’s intrusion into the debate.  My learned friend relies on ‑ ‑ ‑

GUMMOW J:   We do not intrude when we say something, Mr Solicitor.

CALLINAN J:   We are just trying to find out things and making – I do not want to breach of natural justice, Mr King.  I wanted to be clear about a possible construction and I do not want anybody to say afterwards that they have not had an opportunity of dealing with it, because I am going to construe this section.  Whether anybody says I should or should not do it, I am going to do it because I think it has to be done.

MR KING:   I do not want to stop you, your Honour ‑ ‑ ‑

GUMMOW J:   I do not think his Honour is the only one, either.

MR KING:    ‑ ‑ ‑ but I will be back to you in a moment.  Your Honours, what I want to say after the construction point that Justice Callinan has raised is that Container Handlers does not help this Court in this case, there is not the cumulative impact of the wording of the definition that my learned friend tries to give it, and the second reading speech is either neutral, as the New South Wales Court of Appeal has said, or, if anything, helpful to me. 

To go immediately to what Justice Callinan said, I would take up what Justice McHugh said that on the view of clause (iv) which his Honour raised there is indeed a redundancy created.  What the presiding judge said was, “Well, if you give it that sort of reading, you deprive (i), (ii), and (iii) of any meaning”.  In the Court of Appeal in Zurich, the Chief Justice, with whom the other members of the Court agreed, said the same thing, but approached it from the other end of the street, so to speak, by saying, “If that is right, there is no content at all in (iv)”. 

The reason for that, when you look at it, is this.  First of all, there has to be fault. As Justice Hayne said, there has to be a faulty use of the vehicle or fault in the operation of it, and defects, for practical purposes, come in two kinds.  There are those that are discoverable and should be provided against or dealt with and those that are latent and cannot be found and manifest themselves, unfortunately, and cause an accident.  We cannot be concerned with the second kind because they are of the kind that come into being without fault. 

When you take into account that there can be defects which come into existence in relevant association with fault, that they can affect the driving of the vehicle, they can bring about collisions, they can cause the vehicle to run out of control, that notion of fault finds its way very readily into the first three examples in the definition, which are cases of use or operation of the vehicle, and you then look at clause (iv) and say, why is it there? 

The answer is, in my submission, that clause (iv) acknowledges a residual class of use or operation.  There are types of use or operation not involving driving, trying to avoid a collision, having a collision or the vehicle’s getting out of control, and one activity within that residual class is loading and unloading.  There may be others, but that is one that is clearly within it, as my learned friend correctly said.  The New South Wales courts said – and it was happening, so far as the Court of Appeal goes, at the very time this definition was introduced – the New South Wales courts have said that loading and unloading is still part of the use or operation of a vehicle, even though the 1988 Act took out the words “arising out of” and simply left “use” there. 

GUMMOW J:   Why would they have taken “arising out of” away? 

MR KING:   Your Honours, I think the best way to answer that is to take you straight to Moulding.  There is no doubt – and we say this in our written submissions – that in the 1942 legislation most loading and unloading accidents were brought in to the indemnity by the “arising out of” limb.  It may well be that the legislature intended the 1988 Act, which took effect in 1989, as my learned friend has said, to get rid of loading and unloading cases, but at first instance in the two critical cases, a District Court judge, Judge Mahoney, and an Acting Supreme Court Justice, Justice Sackville, said to the contrary. 

Both those cases went on appeal and they are in our list of authorities and my learned friend’s, I think, NRMA Insurance Ltd v New South Wales Grain Corporation and Mercantile Mutual v Moulding.  The Grain Corporation Case is probably the more important one because, if one goes to Mr Justice Clarke’s reasons at 323, starting at line 20, your Honours see his Honour said:

There is one other matter to which I ought refer and that is the explanatory note –

which can be looked at as analogous to the second reading speech here, I suppose.

The terms of the cover do not extend, as at present, to any death or injury caused by or arising out of the use or operation of a motor vehicle (such as an accident involving the loading of a vehicle).

One could be pardoned for thinking, your Honours, that in 1988 the New South Wales Parliament thought that they were getting rid of those.  Now, as I have said, two first instance judges said that was not so and a body of first instance decision grew up thereafter.  The first case is Cayman and in this case, the New South Wales Court of Appeal said, no, loading and unloading is still in it. 

Your Honours, as we say in our written submission, the formulation of this definition which this Court is now to construe is to be seen as involving just this thought process on the part of the legislature.  They say, “Look, the courts have told us that our 1988 Act still allows loading and unloading cases to come within the indemnity.  The courts have told us that.  That is the effect of our Act.  We would like to restrict that.”  And there is no issue. 

My learned friend is correct to point out that on the special leave application argument I conceded that the definition of “injury” and “death” does involve a restriction.  What it does is to create a residual class of use or operation, as I have said, and it must be taken, with respect, that loading and unloading within that residual class and by the amendment of the definition Parliament has told us ordinary mundane loading and unloading operations where the vehicle is, so to speak, an innocent bystander, where the vehicle plays no part in it, are out.  What is in are loading and unloading cases where the vehicle does play a part because there is something defective about the vehicle which has a relevant role in the injury.

Now, that is entirely consistent with the second reading speech, your Honours, if I can jump ahead to that.  I am getting away from Justice Callinan’s interpretation I know, but if you look at the second reading speech, which is conveniently set out on page 70 of the book, about line 31 of the quotation from it:

For example, the CTP policy has been held to cover injuries sustained during the loading and unloading of vehicles -

It goes on to say – it is set out in my learned friend’s list of authorities, it is the second document of his list – to read the balance of that to the Court may be useful although I think Justice Callinan read it out.  It says:

For example, the CTP policy has been held to cover injuries sustained during the loading . . . and injuries sustained while standing on the back of a stationary trailer, and injuries involved in the use of a firearm in a vehicle.

It is therefore proposed to amend the definition of “injury” to adopt an approach similar –

and I emphasise “similar”, not “identical” with the Western Australian approach –

where “injury” is qualified in terms of its cause.

Your Honours, that is precisely what they have done.  A loading and unloading operation is still in the indemnity if it has the qualification to it that involves, in a relevant sense, a defect.  That is a qualification in terms of cause.  That is what they did.  They left loading and unloading cases in, in a minority of instances, where there is a defect at play.  The second reading speech does not help my learned friend.

The courts below in Zurich and in this case said they took no assistance from the second reading speech.  That, with respect, is understandable.  Their Honours are not to be criticised for taking that view because the second reading speech does not descend to the sort of nuts and bolts particularity as you see in clause (iv).

CALLINAN J:   It specifically refers to loading and unloading and disparages decisions which have led to payment by motor vehicle insurers.

MR KING:   Your Honour, you will not see anywhere in the second reading speech any mention of the significance of a defect, yet that is in the Act.  Your Honour, with all respect, I am correct to put ‑ ‑ ‑

CALLINAN J:   You may be about that, Mr King, but there is a specific reference to loading and unloading, and in disparagement of liability for it on the part of motor vehicle insurers.  I do not think you can ignore that.

MR KING:   Your Honour, I am not endeavouring to ignore it.  I am endeavouring to say ‑ ‑ ‑

CALLINAN J:   So that every loading and unloading operation would be outside it except one in which you could identify a defect making a contribution.

MR KING:   That is what I am saying, your Honour.  That knocks out the vast majority of them, with respect.

CALLINAN J:   It seems a very unlikely result to me.

MR KING:   Your Honour, it is there in the plain language of the definition, with respect.  In the residual category of “use and operation” they mention a defect.  Now, one would not expect the Attorney to get down to that sort of detail in his second reading speech, and he does not.  That justifies the view taken in the Court of Appeal about the effect of it for their purposes, but what I say is that if they looked a bit more closely at it and looked at those words “injury” as qualified in terms of “cause” they could well have said, as I put to the Court now, that clause (iv) does qualify loading and unloading injuries precisely in terms of cause, and it requires that there be a defect relevantly at play to keep them in there otherwise they are out, otherwise the Parliament achieves the end that it might have been seeking to achieve in 1988, and they have done it sort of 90 per cent of the time as from 1995.

HAYNE J:   Can I take you back to what may or may not turn out to be a logically prior point.  Paragraphs (i) to (iv) of the definition limit a class more generally described in the introductory expression, do they not?  You have “injury” defined as:

bodily injury caused by the fault . . . in the use or operation of the vehicle if, and only if –

one of four conditions is met.  First, is that an appropriate way to begin reading the definition?

MR KING:   Your Honour, can I answer that in a somewhat roundabout and more fulsome way which I hope will take up that inquiry by telling the Court the way that it should be read as a whole and offer some criticism of my learned friend’s submissions.

HAYNE J:   Can you just humour me a little before you come to that.  Do you accept that you begin reading the definition in the way I have described?

MR KING:   Yes, your Honour.

HAYNE J:   The introductory expression is “in the use or operation of”, not “caused by or arising out of”.  The expression “use . . . of the vehicle” is an expression that has a long history in legislation of this type, is that right?

MR KING:   Yes.

HAYNE J:   In particular, a place to begin is Green & Lloyd and Justice Windeyer, is that right?

MR KING:   Yes.

HAYNE J:   “Use” in Green & Lloyd, particularly at 446, Justice Windeyer speaks of “use” being a general expression:

Any use that is not utterly foreign to its character as a motor vehicle is, I consider, covered by the words.

The words to which his Honour was referring are “the use of a motor vehicle”.  Do you accept that?

MR KING:   Yes.

HAYNE J:   His Honour therefore understood “the use of a motor vehicle” as including unloading and loading what might be called a goods vehicle.  If loading and unloading a goods vehicle is encompassed by “use”, what consequence follows from discarding “arising out of” and substituting the expression “in the use of”?  Is there any relevant consequence in your contention?

MR KING:   Not for present purposes, your Honour.  What I am about to say is a bit repetitive of what I said a moment ago.  There is no doubt that loading and unloading a vehicle which is capable of carrying anything is part of its use.  The debate prior to 1988 or 1989 was the level of causation, so to speak.  Where the vehicle ran somebody down, it directly caused the injury.  That was the sort of thing that was always within “caused by the use of a vehicle”.  Where you had a loading and unloading operation and the vehicle was essential to that because the vehicle was involved, it had to be loaded and unloaded, but the vehicle itself was not really - other than incidentally involved, the fault lay in the system of work or something like that, the indemnity was triggered by the more attenuated “arising out of”.  “Caused by” was direct causation; “arising out of” was attenuated indirect causation.  When in 1988 our Parliament got rid of “arising out of” and simply left “use or operation” there ‑ ‑ ‑

GUMMOW J:   Did they get rid of it by the 1987 Act?

MR KING:   It was the 1988 Act, I think, your Honour.

GUMMOW J:   I just do not know.

MR KING:   It was the Motor Accidents Act 1988 (NSW) which took effect in 1989, as my learned friend has said, and has been there in that phraseology ever since and now in the Motor Accidents Compensation Act 1999 (NSW).

HAYNE J:   But what you have spoken of as the attenuation achieved by dropping “arising out of” ‑ ‑ ‑

MR KING:   No, your Honour, the removal of the attenuation. 

HAYNE J:   The consequence that follows from removing “arising out of” might be thought, perhaps, to be achieved by the introductory expression “caused by fault in use of” thereby narrowing the class of events with which the Act is concerned, deleting from it that class of acts which otherwise had been encompassed by the “arising out of” connection.  Now, what is wrong with that construction?  Because I think you have to say it is wrong to get home, do you not?

MR KING:   Your Honour, what I am about to put is not immediately submission to begin with; it is history.  It is the fact that between 1942 and 1989 some loading and unloading operations resulting in injury came within the direct “caused by” limb, but it would be fair to say that most of them, if they got in at all, got in under the more attenuated “arising out of” limb.  It would also, I believe, be fair to say that in 1988 when our Parliament introduced the Motor Accidents Act with that explanatory note that was set out, they were hoping to get rid of run‑of‑the‑mill loading and unloading operations and our courts – first instance courts and the Court of Appeal in Moulding and in NRMA – said “No, you have not done so”.  That is where we start, your Honour.  My learned friend does not challenge ‑ ‑ ‑

HAYNE J:   I do not know whether we start with the Court of Appeal.  I rather suspect we start with the words, do we not?

MR KING:   Your Honour, I am speaking historically still.  We start with the fact that the Court of Appeal said that the 1988 amendments had not taken out loading and unloading operations.  Now, our Parliament reacted to that and it reacted in a way very differently from the Western Australian Parliament.  Although it thought it was acting in a similar fashion, it did not say it was acting identically.  It did not use the strong word “directly”, which is repeated throughout the Western Australian legislation.  It did not use the other strong expression which is in Containers which was not used by my learned friend, “shall not be taken to have been caused”.  Your Honours will recall that phraseology. 

The New South Wales Parliament did not say, “We will put in ‘directly’, we will say no injury in an unloading operation shall not be taken to have been caused in the use or operation of a vehicle”.  Rather, what the New South Wales Parliament did was accept that loading and unloading operations were still in and they said, “We will wield the axe on them, we will limit them, take them out, except when there is a relevant connection with a defect in the vehicle”. 

It does have some sense to it, with respect, your Honours, because it does keep it associated with the vehicle if a defect is at play.  That is what I think my learned friend is really debating with this Court.  It is a question of causation.  Is the defect in the vehicle to be seen as at play?  Your Honour, can I come back to the definition to give the more expansive answer that I had intended to.  One looks at this – it is not a paradigm of grammar or style ‑ ‑ ‑

McHUGH J:   Part of the problem may be that legislative drafters in particular love to use nouns when they should be using verbs which usually make the drafting shorter.  If you read it “personal injury caused by the fault of the owner or the driver in using or operating the vehicle” not only do you get rid of a couple of prepositions on the way but it brings out the point, does it not, as to whether or not the injury was caused by the fault of the owner or driver in using or operating the vehicle?  Now, the question is, does that cover unloading, “using or operating the vehicle?”

MR KING:   Without answering that immediately in terms, your Honour, may I say a few things about the section.  The first thing that happened when it saw the light of day was that there was a debate among lawyers – well, what does “use or operation” mean compared with “use of and arising out of”?  It could be said that there is a degree of redundancy in “use or operation” in that they have to include each other.  It was taken generally that there is a widening because of the use of the two terms.  Then “if, and only if”, as I said on the special leave application, those are undoubtedly words of emphasis ‑ ‑ ‑

McHUGH J:   “Use” and “operation” no doubt overlap, but they do have independent meanings.  For instance, you might be using a vehicle as one side of a tent but operating the vehicle means something different.

MR KING:   Yes, your Honour, but all I put, with respect, was that there is a degree of redundancy ‑ ‑ ‑

McHUGH J:   Well, there is overlapping.

MR KING:   Yes, then “if, and only if”, these are words of emphasis, they emphasise what is in and they also by that emphasis tell you what is out.  Then “a result of and is caused during”, my learned friend says there is a cumulative impact there.  There is not, with respect.  “A result of” goes back to “caused by” in the first line, “caused during” adds a temporal requirement not a further causal requirement.  It tells you that the injury has not only to be caused, it has to happen during some timeframe, the timeframe limited by when the use or operation is happening.

McHUGH J:   But the definition has a dual aspect of causation, does it not?  It looks at causation from the point of view of an actor, a human actor, the owner or driver.  That person’s fault has to have caused the injury.  But the definition also then requires the injury to be the result of or caused by something inanimate – driving, defect in the vehicle, et cetera, during a particular time period, as you say.  There is this dual notion of causation.

MR KING:   It has to be in the use or operation and if it is in the residual class of use or operation it has to be a result of a defect, but there is not the duality in the collocation of words “is a result of and is caused during” because the first “caused by” and “a result of”, sure, there is a notion of causation there.  The second “is caused during” is a temporal requirement. 

Your Honour, if you would look at NRMA again at page 320 perhaps I can come to Justice McHugh’s comment about “You need human actions with a certain background”. At page 320 of NRMA Mr Justice Clarke in the first full paragraph sets out the approach to causation which was prevailing and he uses that embarrassing expression “That test has now been firmly based on commonsense”.

GUMMOW J:   Ordinary commonsense.

MR KING:   Before I come to Justice McHugh’s comment about human intervention, human activity, I would like to take up Justice Gummow’s comment of what does that mean?  That passage in NRMA is to be seen as the embodiment of the concept of causation that Parliament thought it had to deal with.  It is an expression of the approach to causation for the purposes of bringing in the indemnity under this legislation which had prevailed since 1942, namely, this was socially beneficial legislation designed to deliver compensation to injured people and the commonsense of it involved taking a broad approach to causation, not a fancy approach to causation involving dissection - segregation, such as my learned friend contends for – a broad robust approach is the commonsense, your Honour.

GUMMOW J:   That is because of the perceived remedial nature of the 1942 Act.  I understand that, but there seems to have been a shift.

MR KING:   It is true that it has been tightened up in 1988 and 1995 and more recently with the Motor Accidents Compensation Act but it still retains that socially beneficial character and that approach to it is still applicable and that is the approach to causation that the Parliament is to be seen to have contended with when it introduced this definition and it is saying, “All right, loading and unloading a vehicle, an injury happens in the course of it, that is an injury connected with the use or operation.  We want to restrict that.  We will add this requirement that a defect has to be at play as well.”

But, now coming back to what Justice McHugh said, your Honour, consider this.  We say that the decision of the New South Wales Court of Appeal in Zurich is of assistance in the determination of the present appeal and my learned friend says in his reply to our written submissions it is a very different case because in that case the ramp was built to be used as it was being used.  In this case, the rollers were being used in a different fashion from that which they were intended to be used in.

What I want to put chiefly to the presiding Judge is this.  There are very few defects that are purpose built or custom built, as they were in Zurich.  Sure, Zurich was correctly decided and it is a case of a defect, but the more common case of a defect in a vehicle is one which develops during the life of the vehicle.  It is not there from the start as a result of purpose building.  Defects usually come about through wear and tear, abuse or damage.  That is the type of defect that Parliament is really to be taken to have primarily had in mind in clause (iv).  That is the type of defect with which the Symen Case which followed Zurich ‑ ‑ ‑

McHUGH J:   But this would have been a clear case of the injury being caused by a defect in the vehicle if, for example, the bar had dropped on the plaintiff because of the malfunction, for instance, or maybe because it did not move and he attempted to pull it and he injured himself.  One would say it was caused by the defect.  But there is really no physical connection in this case between the defect in the vehicle and the injury.  So how do you make out a case of causation except on a “but for” basis, which seems to be the approach of Justice Davies?

MR KING:   Your Honour, that is what I wanted to tell you.  My learned friend says that the “but for” test is no longer a test.  I might interrupt myself to say, with respect, that is not quite right.  It is a qualifying test.  You might have to add something to it in certain types of case, but it is still there. 

Your Honour, in Zurich there was a defect and there was a requirement to use it; the ramp was being used as required.  The requirement to use it there was a direction to the workforce, the same as the direction to use this truck here.  So, in both cases, you have a defect, you have a requirement to use the vehicle while defective and you have an injury flowing from that.  I use the expression “flowing from that” as a neutral expression.  Now, it makes no difference ‑ ‑ ‑

McHUGH J:   No, no, listen, it is neutral. 

MR KING:   Your Honour, it makes no difference, with respect, that in Zurich the defect was purpose built, whereas in this case it developed.  As I have said, most defects of the kind that Parliament were obviously talking about will be developmental.  There are two propositions to take from that.  One relates to the evidence in this case, but the more important one, in my submission, is this.  When you have a defect in a vehicle, it has to be dealt with in some way by human beings.  There has to be some application of human activity in respect of it.  Now, one thing you can do is take the vehicle out of commission, not use it if it is defective.  Another thing you can do is repair it straight away.  Another thing you can do is to try to live with it, accommodate it, work with it. 

Bear in mind, your Honours, that a lot of defects will manifest themselves when a vehicle is out on a run or something, and there will not be a boss to give an instruction – the men will have to try to do something about it.  If they try to accommodate the defect, to work with it, and they alter their behaviour accordingly and injury results, in my submission, in a socially beneficial context like this, a broad and robust approach means that it remains at play.  The defect, because it is being coped with, because the behaviour of the people is being accommodated to it, remains a causal factor.  But, in this case, if you look at the evidence ‑ ‑ ‑

CALLINAN J:   Why do we have to be robust?  Why can we not just be normal?  Why should we have any predisposition towards reticence or robustness?

MR KING:   Your Honour, take out robust then.  So go back to a broad approach, a commonsense approach.  I was endeavouring to give some content to commonsense.  The content given to commonsense ‑ ‑ ‑

CALLINAN J:   To be robust.

MR KING:   ‑ ‑ ‑ this legislative context where you are trying to make a scheme work and deliver money to those ‑ ‑ ‑

CALLINAN J:   But it is a contest between two insurers.

MR KING:   No.  Well, your Honour, with respect, we have endeavoured ‑ ‑ ‑

CALLINAN J:   And almost always will be.

MR KING:   I wanted to come that, but let us deal with it now.  My learned friend took that point.  We endeavoured to point out in our written submissions that the learned President in the Court of Appeal is right, there will not always be a workers compensation insurer in ‑ ‑ ‑

CALLINAN J:   So that means you distort the language.

MR KING:   I am sorry, your Honour ‑ ‑ ‑

CALLINAN J:   It cannot be an excuse to distort the language.  You construe the language.

MR KING:   No.  Your Honour, if you start with the notion that the approach to these third party schemes has always been to make them work for the benefit of injured people ‑ ‑ ‑

CALLINAN J:   And that is why we have amendments restricting it because the courts may have overdone it, Mr King, and they have consistently overdone it with the inevitable result that the legislature finally says, “Enough”.  If the legislature says that, the courts ought to have regard to it.

MR KING:   Your Honour, we are here to find out what the legislature says, with respect.  I would be repeating myself if I dwelt at length upon the submission I made earlier.  This still remains a socially beneficial third party scheme, even though it has been tightened up.  They have not said, “Enough”; they have just tightened it up.  It is a question of what the extent of the tightening is that we are debating now.

Now, there will not always be a workers compensation insurance policy in the background.  Your Honour yourself mentioned public liability insurance.  Now, we have all spent our lives looking at public liability policies and they all have motor vehicle exclusions in them.  Public liability insurance with motor vehicle exclusions in them are not helpful in this context to injured people or to insured people.  Not everybody has public liability insurance anyway.

Now, your Honour, with respect, as we say in our written submissions, this Court in construing this definition would want to look beyond the four corners of the interests of the parties in this case to the wider implications.  The first wider implication is the position of injured people, which has always been the primary focus of legislation of this type.  Secondly, we say that you would not want to look at the presence of workers compensation insurance, but if you do, what does it mean?  I mean, double insurance has been a feature of this area of the law since 1942. 

As we point out in our written submissions, New South Wales Government, through delegated legislation, showed some tenderness to the interests of workers compensation insurers because for a little while it took out of the indemnity in a workers compensation policy motor accidents damages.  That meant for a while workers compensation insurers were not caught with double insurance.  They soon put that back in.

Now, your Honour, when you look at the definition of “injury” here and you see that in driving, colliding, running out of control, everything incidental to that, there is double insurance if it is in an industrial context.  Is it to be supposed by clause (iv) that the Parliament is showing some localised tenderness to third party insurers?  They are only going to be paying half because they are going to be getting half of it from workers compensation insurers 95 per cent of the time.  It is really wrong to see this as a dispute between insurers.

CALLINAN J:   I was just picking up the word “robust”, Mr King.  I really think you cannot approach it with an attitude either of robustness or reticence or timidity.  You just do the best you can with the language, that is all.  You are really taking up what Acting Justice Davies said and I am just suggesting to you that that is a predisposition that is inappropriate, that is all.  I think you have said everything you wanted to say.

MR KING:   I hope I have answered it, your Honour, in a follow‑up, non‑robust way. 

CALLINAN J:   Yes, well done. 

MR KING:   All this happened, your Honour, because I was saying, taking up Justice McHugh’s point that you need human intervention, that the concept of causation is there where there is a defect, because people have to cope with it.  In this case, the boss had to cope with it and he made his workers, including the injured man, cope with it.  It remained at play.  It was an injury which was the result of a defect within the meaning of the definition.

McHUGH J:   What you have just said seems to turn the definition on its head.  The first limb of the definition deals with what I might call personal causation.  The question does not arise unless there is an owner or driver whose fault has caused personal or bodily injury in the use or operation of a motor vehicle, but that is not sufficient to get an indemnity.  One then has to go on to say that the injury was also the result of and was caused during what I will call particular use and, in the case of (iv), was caused by a defect in the vehicle.  So the legislature seems to be driving at the need, apart from personal causation, to get some physical connection between the defect and the injury.

MR KING:   Your Honour, I do not want to put this as anything other than an alternative, but it is here in this case at an evidentiary level.  If you go to page 23 of the book, line 35, the plaintiff is talking about what they did with the defective rollers.  They used them to an extent.  They played an immediate part in what happened.

CALLINAN J:   Mr King, were they defective or was it the T‑bar that was defective?

MR KING:   The whole thing is defective.  Your Honour is right to say that the rollers were not working as they were intended to work because the whole apparatus, including the T‑bar and the power tool – but there is no escape, your Honour, from the conclusion that the rollers were hors de combat, they were out of action, they were not working; they were part of the defect.  The men used them.  That is an immediate connection, with respect, but I am more concerned to deal with it at the level of human involvement, because you say, well, human involvement with what?  The answer is human involvement with the defect.  Something had to be done and what was done was coping with or trying to accommodate the defect.  The defect remained a player, if I can use that expression in a causal sense, all the way through.  The language of the President does put it – if you go to page 63 of the book, paragraph 14 of his Honour’s reasons ‑ ‑ ‑

McHUGH J:   Yes, but the problem with the President’s reasoning, it seems to me, Mr King, is that he jumps from result to cause.  Now, you may well be right that what happened here was a result of the defect and what you point out at page 23 tends to strengthen that.  It is not the question though as to whether the defect caused the injury.

MR KING:   Well, your Honour, taking up what you said – this is again completely repetitious of what I have been saying for the last couple of minutes, a defect will always create a “but for” situation because a defect has to be responded to.  Now, if the defect is not got rid of by the vehicles being taken out of operation or its being immediately repaired; if the defect is kept alive in the use of the vehicle because the men have to work with it, accommodate it, cope with it, it remains at play.  Everything is linked to it in a causal sense, particularly in the context of socially beneficial legislation.  That is what I am trying to say.

If you look at the definition, page 64 of the book, you have to have “fault . . . in the use or operation”.  Now, we know that loading and unloading are a “use or operation”.  They are the residual subclause (iv).  We have that fault because the unloading procedure is negligent.  Now, the injury results from the defect in the sense that I have outlined – you would have had no injury but for the defect and you would have had no injury but for the fact that the defect was there at all material times and being accommodated or coped with.  Now, your Honour, that is, with respect, I think enough to say ‑ ‑ ‑

McHUGH J:   Yes, well, I understand your point.  You say those paragraphs 15 and 16 of the President’s judgment are correct, that once you determine it is a result of the defect then it inevitably follows that it was also caused by it.

MR KING:   But, your Honour, it is wrong, with respect.  I know the Court is concerned with the construction of the statutory definition.  It is wrong in the legislative context here to expect this definition to be a paradigm of grammar and style.  I have pointed out a few things about it.  Just look at (ii):

a collision, or action taken to avoid a collision, with the vehicle –

If you read that grammatically it is talking about some other vehicle.  To make that make sense, “with” should be “involving” because you are talking about the particular vehicle which is insured.  Your Honours, my learned friend did not deal orally with his absurd example ‑ ‑ ‑

HAYNE J:   Just before you go to that, can I just seek to put you the distinction that the statute draws between “result of” and “caused” as being the distinction discussed by Justice Windeyer in Espagne’s Case, 105 CLR particularly between 590 and 594, the pensions case, where his Honour gathers together a lot of the discussion in the cases seeking to distinguish between the entire sum of conditions which contribute to a result which the philosopher might attribute as being the cause of the result, and the lawyer’s rather different search for causation in the sense of relationship for which there is culpability.  Now, if there is some distinction of that kind to be drawn here, merely pointing to the breakdown in the unloading system as one of the entire sum of conditions which contributed to the result does not suffice.  Now, what do you say about that approach to construing the provision?

MR KING:   Your Honour, again, I do not want to make a mantra of it, but in the context of the third party scheme it is not appropriate to dissect and limit in that way.  If the defect is one of a number of things necessary to complete the occurrence of the injury and which is operative at all times, because the men, as I have said, are coping with it, trying to accommodate it – they are actually using the damaged or the non‑working thing at the time – it is sufficient for present purposes, and what Justice Windeyer said is not troubling. 

Particularly, your Honour, I have said that Containers is of no real help to the Court.  I would like to go back to that to try to fortify what I am saying to your Honour Justice Hayne, because not only is there not the repetition of “directly” and the other strong phraseology to which I have referred, my learned friend, as I heard him, went so far as to say that even if the Western Australian Parliament had not used the expression “directly”, the Act and the policy over there should be read as though direct cause was implied. 

The first problem with that is that Parliament felt the need to use the expression “directly”, and, secondly, as a couple of examples from the reasons of members of this Court – Justice Gummow at paragraph [78], I think it is, of Containers actually spoke of the added fact of the imposition of – yes, at the right hand column of page 837 in paragraph [78], after the quotation from Green & Lloyd, Justice Gummow said:

The imposition of a requirement of directness or proximity in respect of the expression “caused by” –

It is, with respect, difficult to see how my learned friend can support the proposition that in Western Australia the result would have been the same without the word “directly”, which our Parliament could have put in here and did not.  Then if you go to Justice Kirby at paragraph [105], which is in the right hand column of page 841, he says, starting some lines down:

Those words restricted the commission’s liability by reference to the limiting notions of causation (directly) and locomotion (driving) of the insured motor vehicle.  Although –

getting back to broadness, robustness and commonsense –

Although the use of words such as “direct” and “proximate” has been criticised by courts in the context of the legal notion of causation at common law, the introduction of the word “directly” into the Act obliges courts to give that word due meaning. 

Your Honours, there is no escape, with respect, from the distinction between the more powerful language used in Western Australia, which powerful language is not used here, and the absence of any reference to a defect in Western Australia and its express inclusion here.

CALLINAN J:   I referred to “directly” too at paragraph [132] in Insurance Commission. 

MR KING:   It is probably a better reference, your Honour.

CALLINAN J:   What is that?

MR KING:   It is probably a more appropriate reference, is that ‑ ‑ ‑

CALLINAN J:   Well, I thought it was an important word myself, and I said that at paragraph [132]. 

MR KING:   Your Honours, I would like to deal very quickly before I sit down with my learned friend’s absurd example in his written submissions about a truck breaking down and the employer telling the employee to push it some kilometres to do the delivery.  The first thing I would like to say, with all respect to Mr Rewell, is that no court, certainly not this Court, would base a decision on an absurd example, with respect, but in that example, for the reasons I have endeavoured to give, causation would be clear enough by reference to the defect.

There would be other problems.  If you were pushing a vehicle, it is doubtful, with respect, whether it would be “use or operation” because you would not be driving it, you would not be having or avoiding a collision and you would not be running out of control.  One would have to consider whether that is in the residual category of the fourth subclause.  More realistic examples, your Honours, would be these, that if a vehicle breaks down on a busy road and the boss says, “Push it to the side of the road.  Get it off the road before something runs into it”, that would be avoiding a collision, so that would be in, but, if there were a breakdown at the depot and the vehicle which has broken down is occupying a space and the boss wants that space to be vacated so another vehicle can come in and he says, “Push it over there”, that would not be within the indemnity, with respect; that would be an example of the effectiveness of the restriction brought about by our Parliament.

Your Honours, perhaps I can conclude by saying this.  The statutory definition is concerned with the use or operation of the vehicle, not with the use or operation of the defect.  The defect has to be something that brings about a result, namely, the injury.  It would be a strange thing, your Honours, if our Parliament introduced the notion of a defect, for it not to be approached along the lines of causation in the broad way that causation has always been looked at in this context.

It would be a strange thing if our Parliament put a defect in as a link to a vehicle to take you through the gateway to compensation and to indemnity in order to complicate things rather than simplify things.  It is better to approach the defect provision with the sort of simplicity that we

contend for to make life easier for plaintiffs and for insured people.  Your Honours, I will just see whether I have any instructions to be given to me but, with respect, those are our submissions.

McHUGH J:   Thank you, Mr King.  Yes, Mr Rewell.

MR REWELL:   Just two matters, your Honour.  Firstly, one must be careful in comparing factually the case of Zurich v CSR to the present case.  My learned friend pointed out that in both cases the worker was instructed to do something which led to the worker being injured, but that is where the similarity finishes.  As I pointed out in our submissions in reply, in Zurich v CSR the worker lifted a ramp which weighed nearly 80 kilograms without any assistance, either mechanical or by a colleague.

That was, as the Court found, the intended use of the vehicle.  That was exactly what the vehicle was designed for him to do and the Court found that that was, in effect, a defect in the design of the vehicle because it required a worker to behave in a way which was unsafe.

The defect in the vehicle, that is, the absence of any hydraulic or mechanical lifting mechanism to assist in lifting the ramps was the direct cause of the worker’s injury.  There was an instruction but the instruction was merely to use the vehicle for the purpose and in the manner for which it was intended, so one can easily see the difference between that case factually and this one where the worker was instructed in this case to use the vehicle in directly the opposite manner than that which was intended, and to use the vehicle in a way which did not implicate the use of the defective part which was the T-bar mechanism, but to use it despite the presence of that part.

Your Honour, the second matter that I wanted to deal with was Mr King’s attempt to limit the words “and is caused” in section 3(a) to some form of temporal meaning. Mr King attempted to say, look, all the word “caused” can mean is said by the following words “during . . . such use or operation”. In other words, it is a temporal limit only, but that is clearly not correct. As I pointed out earlier, the words “and is caused”
relate to the words “by a defect” in (iv).  The words “by a defect” in (iv) cannot be associated with any other word in the definition.  For example, the consequence of Mr King’s argument would be that it should be read if and only if the injury is a result of “by a defect”, that is, to limit cause to the temporal “during . . . such use or operation”.  Now, that is obviously not only ungrammatical but nonsensical.

The words “and is caused” must be read as if they are followed by the words “by a defect in the vehicle” and also imposing the temporal limitation during such use or operation.  Mr King was fond of using the

words “at play”, that is the defect remains at play.  The section does not involve a defect which is at play.  It involves the concept of causation.  As the Court pleases.

McHUGH J:   The Court will reserve its judgment in this matter, and we will now adjourn until 10.15 am in Canberra on Tuesday, 5 October.

AT 12.03 PM THE MATTER WAS ADJOURNED