Barun v VWA
[2025] VCC 552
•7 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-04968
| PETAR BARUN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 November 2024 | |
DATE OF JUDGMENT: | 7 May 2025 | |
CASE MAY BE CITED AS: | Barun v VWA | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 552 | |
REASONS FOR JUDGMENT
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Subject:Workplace Injury
Catchwords: Whether forklift a motor vehicle
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic); Transport Accident Act 1986 (Vic); Road Safety Act 1986 (Vic); Accident Compensation Act 1985 (Vic).
Cases Cited:Transport Accident Commission v Hogan [2013] VSCA 335; (2013) 41 VR 112; Transport Accident Commission v Ball [1991] 1 VR 64; Belgrave Heights v Moore [2020] VSCA 240; Metro Trains Pty Ltd v Keay [2023] VSCA 223; Newton v Incorporated Nominal Defendant [1970] VR 257; Burns v Currell [1963] 2 Q.B. 433; Siciliano v Acme Knitters & Dyers Pty Ltd [1994] 1 VR 632; Transport Accident Commission v Serbec (1993) 6 VAR 151; Smith v Transport Accident Commission [2005] VSCA 25.
Judgment: Questions answered in the negative
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram KC Mr G Smith | Slater & Gordon |
| For the Defendant | Ms R Kaye KC Ms L Glass | Lander & Rogers |
HIS HONOUR:
Introduction
1.The aphorism, "If it walks like a duck, talks like a duck, it probably is a duck" is a popular idiom used to convey the idea that if something exhibits the characteristics or behaviours typically associated with a particular thing, then it is likely to be that thing. The expression is often attributed to the American philosopher and logician, James Whitcomb Riley. This case does not concern a duck, but rather a forklift, operated at the employer’s premises by the plaintiff and on which he was unfortunately injured. The question in issue, is whether the forklift is a motor vehicle for the purposes of applicable legislation.
2.The plaintiff was represented by Mr Ingram of King’s Counsel together with Mr G Smith of junior counsel. The defendant was represented by Ms Kaye of King’s Counsel and Ms Glass of junior counsel.
3.This application arises as an agreed preliminary question set down by a judicial registrar of the Court on 9 October 2024. The question is:
Was the forklift driven by the plaintiff on 5 November 2015 a ‘motor vehicle’ for the purpose of the definition of ‘transport accident’ in the Transport Accident Act 1986 (Vic)?
4.Mr Ingram submitted that the answer to the question is that the forklift is not a ‘motor vehicle’ for the purpose of that definition. Ms Kaye submitted that an objective examination of the characteristics of the forklift identify that it is apt or suitable for use on a road, and therefore, satisfies the definition of a motor vehicle.
5.In order to understand why the question calls to be answered, it is necessary to set out some factual and legal background relevant to the plaintiff and his injuries. The following account is derived from three affidavits made by the plaintiff in support of his Originating Motion dated 25 June 2018,[1] 14 December 2020,[2] and 8 October 2024.[3]
[1]Exhibit P1, PCB 13-20.
[2]Exhibit P1 PCB 21-24.
[3]Exhibit P1 PCB 25-26.
The First Affidavit
6.The plaintiff completed schooling to Year 11. From about 2002 he worked as a store person and in warehousing roles. The plaintiff worked for Somerville Retail Services Pty Ltd (“SRS”) from 2003 to 2007 as a forklift driver, and to whom he returned to work, in 2013.[4]
[4]Exhibit P1, PCB 14-15, Affidavit of the Plaintiff dated 25 June 2018 at paragraph [6].
The Injury
7.The plaintiff said he developed right foot and heel pain in the course of his employment with SRS, whilst driving forklifts.[5] The plaintiff said that throughout the course of his employment, he drove forklifts for prolonged periods of time, while loading and unloading pallets on and off trucks. He described the operation of the forklifts as requiring him to drive towards trucks on a loading bay and driving over uneven ramps and which resulted in jolting.[6]
[5]Exhibit P1, PCB 14-15, Affidavit of the Plaintiff dated 25 June 2018 at paragraphs [4] and [7].
[6]Exhibit P1, PCB 14-15, Affidavit of the Plaintiff dated 25 June 2018 at paragraph [7].
8.On 5 November 2015, the plaintiff developed low back pain and left leg pain whilst driving a forklift over a ramp.[7]
[7]Exhibit P1, PCB 14-15, Affidavit of the Plaintiff dated 25 June 2018 at paragraph [8].
The Second Affidavit
9.The plaintiff said that he was the principal forklift driver for SRS and had to load and sometimes unload up to 12 trucks a day.[8]
[8]Exhibit P1, PCB 22, Affidavit of the Plaintiff dated 14 December 2020 at paragraph [7].
10.The forklifts were electric (battery fitted) machines. The plaintiff said they were equipped with hard rubber tyres. He said he felt jolting sensations when driving. In the loading bay, he described metal grates which were lowered onto the pan of trucks over which the forklifts were required to drive. When the grate was joined to the loading dock there was a ridge which he said caused a jarring sensation when driving over it.
11.The plaintiff said that the concrete surfaces he drove over were uneven due to cracks and potholes.[9]
[9]Exhibit P1, PCB 22, Affidavit of the Plaintiff dated 14 December 2020 at paragraph [5].
The Third Affidavit
12.The plaintiff identified that there were three Hyster brand electric battery counter balance forklifts in use at the premises. He said two of the three were used exclusively inside the warehouse from the loading dock.[10] A third forklift was an ‘outside’ forklift and was used only in the yard. He said the outside forklift was the same as the inside forklifts except for it being equipped with different front tyres.[11]
[10]Exhibit P1, PCB 25-26, Affidavit of the Plaintiff dated 8 October 2024 at paragraph [5].
[11]Exhibit P1, PCB 25-26, Affidavit of the Plaintiff dated 8 October 2024 at paragraph [5].
13.The plaintiff said he understood that the two ‘inside’ forklifts were not registered but that the ‘outside’ forklift was registered.[12] The plaintiff said he believed that each of the forklifts were speed limited to 5 km per hour.[13]
[12]Exhibit P1, PCB 26, Affidavit of the Plaintiff dated 8 October 2024 at paragraph [6].
[13]Exhibit P1, PCB 26, Affidavit of the Plaintiff dated 8 October 2024 at paragraph [9].
14.At the time of injury on 5 November 2015, the plaintiff said he was driving an ‘inside’ forklift over a makeshift ramp when loading meat products into the cool room.[14] There was no contradictory evidence.
[14]Exhibit P1, PCB 26, Affidavit of the Plaintiff dated 8 October 2024 at paragraphs [7] and [8].
Defendant’s Lay Affidavits
15.The defendant relied on an affidavit of Mr David Vella sworn on 30 August 2024[15] and an affidavit of Mr Jeremy Walsh made 6 September 2024.[16]
[15]Exhibit D1, DCB 5-21.
[16]Exhibit D1, DCB 22-35.
Affidavit of David Vella
16.Mr Vella said he has been the warehouse supervisor at SRS since 2010.[17]
[17]Exhibit D1, DCB 5, Affidavit of Dr David Vella at paragraph [1].
17.Mr Vella said he thought it was likely that the forklift the plaintiff was driving at the time of his injury was one of the two ‘indoor forklifts’ because the incident occurred in the loading area and this is where the indoor forklifts were typically used.[18]
[18]Exhibit D1, DCB 6-8, Affidavit of Dr David Vella at paragraph [8].
18.Mr Vella deposed that the three forklifts are of the same make and model.[19] Mr Vella described the forklifts as having the following features:[20]
[19]Ibid.
[20]Ibid.
(a) solid rubber tyres;
(b) steering wheel;
(c) accelerator pedal;
(d) brake pedal;
(e) direction control switch;
(f) adjustable full suspension seat with arm rests;
(g) LCD screen, which shows the battery bar graph and other service information;
(h) headlights, and rear driving light;
(i) indicators;
(j) brake lights on both the front and back of the forklift;
(k) horn positioned on steering wheel, and additional horn at right rear overhead position;
(l) central rear vision mirror and side mirrors on both right hand and left hand sides;
(m) seat belt, which if not plugged in, stopped the forklift engine from running;
(n) park brake;
(o) an amber flashing light at the back to signal when the forklift was in operation;
(p) lift lower control levers, which allowed the operator to raise the mast carriage and forks and lower the mast carriage and forks;
(q) four performance modes, whereby each mode changed the maximum acceleration speed. (The plaintiff scanned a Fork Track card that logged him into the mode he was entitled to use, which was governed to a maximum speed of 5kms per hour. The forklifts possessed the ability to drive at faster speeds. Depending on their level of authorisation, the driver could or could not change the mode);
(r) an estimated load capacity of 1.8 tonne.
19.Photographs of the forklifts comprised part of an Exhibit “bundle” to Mr Vella’s affidavit and are reproduced as Attachment A to these reasons. They are no longer in use.
20.Mr Vella said that the ‘indoor forklifts’ were not registered but the outdoor forklift was registered.[21] Why it was registered was not explained but the fact that it was, suggests at least the potential for some lawful use on a highway.
[21]Exhibit D1, DCB 6-8, Affidavit of Dr David Vella at paragraph [9].
21.Mr Vella also deposed that the outdoor registered forklift had a rotating attachment fitted to the front mast to allow it to handle bins, pallets and crates located in the yard but otherwise they were identical.[22]
[22]Exhibit D1, DCB 8, Affidavit of Dr David Vella at paragraph [9].
Affidavit of Jeremy Walsh
22.Mr Walsh is the General Manager Finance of SRS.[23] He deposed that there was a modest difference in price between the outside forklift and the indoor forklifts due to the rotator attachment fitted on the outdoor forklift.[24]
[23]Exhibit D1, DCB 22, Affidavit of Dr Jeremy Walsh at paragraph [1].
[24]Exhibit D1, DCB 23, Affidavit of Dr Jeremy Walsh at paragraph [3].
The Legal Back Story
23.The plaintiff’s injury claim is for both course of employment, and a specific incident of injury on 5 November 2015 (the “jolting incident”). The course of employment is for injuries that arose out of, or in the course of, or due to the nature of, his employment with SRS between 2005 and April 2015.
24.The plaintiff’s entitlement to claim common law damages is governed by the provisions of Division 2 of Part 7 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRCA”). If a work-related injury is suffered ‘as a result of a transport accident’, the ‘gateway’ mechanism for accessing common law damages is prescribed exclusively in s 93(4) of the Transport Accident Act 1986 (“the TAA”). However, if the work-related injury is not the result of a transport accident then, pursuant to s 326 of the WIRCA, the ‘gateway’ for accessing common law damages is contained in s 335 of the WIRCA.
25.The plaintiff obtained a Transport Accident Commission (TAC) serious injury certificate for the incident of 5 November 2015. He seeks to obtain a Victorian Workcover Authority (VWA) certificate for that incident as well, and no doubt combine the course of employment with the transport accident. So far, so good.
26.The plaintiff brought an Originating Motion dated 7 November 2018. It was dismissed on the basis that his injury was a TAC matter. However, following the decision of the Court of Appeal in Belgrave Heights v Moore,[25] the matter was reinstated by consent.
[25] [2020] VSCA 240.
27.The progress of the plaintiff’s matter was then complicated by the decision of the Court of Appeal in Metro Trains Pty Ltd v Keay,[26] a consequence of which requires a plaintiff to disaggregate the effects of a non-transport accident from a transport accident. Put another way, the plaintiff is required to disaggregate the course of employment claim from the jolting incident on 5 November 2015, if indeed, the jolting incident was a transport accident. The plaintiff seeks a determination that the jolting incident was not a transport accident on the basis that the forklift was not a motor vehicle.
[26][2023] VSCA 223.
28.The following statutory provisions are relevant:
Transport Accident Act 1986
Section 3
Definitions
"transport accident" means an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram.
"motor vehicle" means a motor vehicle within the meaning of section 3(1) of the Road Safety Act 1986.
Road Safety Act 1986
Section 3
Definitions
"motor vehicle" means a vehicle that is used or intended to be used on a highway and that is built to be propelled by a motor that forms part of the vehicle but does not include—
(a) a vehicle intended to be used on a railway or tramway; or
(b) a motorised wheel-chair capable of a speed of not more than 10 kilometres per hour which is used solely for the conveyance of an injured or disabled person; or
(c) a vehicle that is not a motor vehicle by virtue of a declaration under subsection (2)(b);
"vehicle" means a conveyance that is designed to be propelled or drawn by any means, whether or not capable of being so propelled or drawn, and includes bicycle or other pedal-powered vehicle, trailer, tram-car and air-cushion vehicle but does not include railway locomotive or railway rolling stock;
"highway" means road or road related area;
"road" means—
(a) an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles; or
(b) a place that is a road by virtue of a declaration under subsection (2)(a)—
but does not include a place that is not a road by virtue of a declaration under subsection (2)(a);
"road related area" means—
(a) an area that divides a road; or
(b) a footpath or nature strip adjacent to a road; or
(c) an area that is open to the public and is designated for use by cyclists or animals; or
(d) an area that is not a road and that is open to or used by the public for driving, riding or parking motor vehicles; or
(e) a place that is a road related area by virtue of a declaration under subsection (2)(a)—
but does not include a place that is not a road related area by virtue of a declaration under subsection (2)(a);
Case Law
29.Both counsel referred to a like suite of legal authorities but with them each submitting, that in some important respects, different principles should be distilled from them.
Plaintiff’s Submissions
30.Mr Ingram referred to the definition of a motor vehicle in s 3 of the TAA, and for which purposes of s 3(1) of the Road Safety Act 1986 (“RSA”), it is a “vehicle that is used or intended to be used on a highway and that is built to be propelled by a motor that forms part of the vehicle”.
31.Mr Ingram submitted that answer to the question hinges on whether the forklift driven by the plaintiff was used or intended to be used on a highway. Mr Ingram referred to the definition of a highway in the RSA to mean, inter alia, a ‘road’, which is defined as meaning “an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles”.
32.Mr Ingram contended that despite the state of evidence failing to identify with certainty which of the three forklifts the plaintiff was driving when injured, the uncontested evidence is that none of the three forklifts were used on a road. Mr Ingram relied on Mr Vella, the employer’s Warehouse Supervisor, whose affidavit sworn on 30 August 2018, included that the forklifts “are not required to drive on the road”. Mr Ingram also referred to the evidence of the employer and the plaintiff, that the forklifts were driven either inside the warehouse on its property or outside the warehouse but still within its property. Mr Ingram pointed to the plaintiff’s evidence that the inside use forklifts were used exclusively inside, whereas one forklift was used exclusively outside.10 Mr Ingram noted that Mr Vella’s affidavit included that “the Plaintiff was likely driving one of the two inside use Hyster counter balance forklifts”.9 The plaintiff is of that same opinion.
33.Mr Ingram referred to the evidence from SRS that the ‘outside’ forklift was registered and that the two ‘inside’ forklifts were unregistered,11 from which Mr Ingram submitted it was a reasonable inference to draw that SRS did not intend the inside forklifts to be used on a road.
34.Mr Ingram submitted that irrespective of the owners intentions, the attributes and characteristics of the two ‘inside’ forklifts identifies that that they were suitable for or apt to be used for and meant for lifting and transferring objects over short distances, rather than for use on the road. Specifically, the characteristics and attributes on which Mr Ingram relied as significant, and made submissions about were as follows:[27]
[27]Exhibit P1, PCB 325, Plaintiff Submissions at paragraph [23].
(a) The forklifts have tynes, the sole purpose of which is to lift and lower items usually on pallets;
(b) The forklifts are speed limited to 5km per hour, which is appropriate for a warehouse environment but is well below the lowest speed limit on a public road;[28]
(c) The drivers’ seats of the forklifts were facing the mast of the forklifts which were fitted at the front of the forklifts and which would have obscured the drivers’ forward vision if driven on a road;[29]
(d) The forklifts were not fitted with windshield glass, which would have impacted a driver’s vision were the forklift driven on the road;[30]
(e) The forklifts have very small wheels, solid rubber tyres, and only a small clearance height from the ground which would assist with creating a low centre of gravity for lifting but reduce their capacity to drive over undulating or rough road surfaces;[31]
(f) The forklifts were susceptible to tipping over if driven over bumps or surface edges.[32]
[28]Exhibit P1, PCB 25, Affidavit of Plaintiff dated 8 October 2024 at paragraph [9]; Exhibit D1, DCB 8, Affidavit of Mr David Vella at paragraph [8].
[29]Exhibit D1, DCB 17-20, Affidavit of Mr David Vella; Exhibit P1, PCB 60, Hyster Forklift Operations Manual at paragraph [12].
[30]Exhibit D1, DCB 17-20, Affidavit of Mr David Vella.
[31]Exhibit D1, DCB 17-20, Affidavit of Mr David Vella.
35.Mr Ingram also referred to Mr Vella’s affidavit that listed various features of the forklifts including indicators, mirrors, lights and a seatbelt. Mr Ingram submitted that the inclusion of indicators is consistent with the safe operation of a forklift in a warehouse environment where there are known to be other forklifts and workers in the vicinity. The existence of mirrors and lights enable a forklift operator to see where they are going or be visible to other forklift users as well as pedestrian foot traffic in the work setting. Mr Ingram submitted the features identified in the evidence are characteristics and attributes of a vehicle used in a warehouse for lifting and transferring pallets, and are not demonstrable of a vehicle that is necessarily intended for or apt for use on a road. Although Mr Ingram accepted that the characteristics of the forklifts, along with a capability of being registered, did not prevent them from being used on a road, he argued that the question if a forklift might be used, such as on a road, is distinct from its intended use.
36.Mr Ingram relied on the decision of the Court of Appeal in Transport Accident Commission v Hogan (“Hogan”) in which it was said that “the authorities make it plain that the words ‘used’ or ‘intended to be used’ in the definition of motor vehicle have very different meanings”.[33]
[33][2013] VSCA 335, [33].
37.Mr Ingram submitted that the word ‘used’ should be understood as whether the vehicle is or has actually been used on a road, although he accepted that based on common sense, and authority, an isolated use on a single occasion would be insufficient to satisfy the definition. On the other hand, he submitted that the phrase ‘intended to be used’ requires an objective assessment of what the vehicle is ‘suitable or apt’ or ‘meant for’.
38.Mr Ingram noted that in Hogan, the Court of Appeal referred to the judgment of Buchanan JA (with whom Callaway and Batt JJA agreed) in Transport Accident Commission v Ball (“Ball”),[34] in which it was said, that an objective assessment is required in which the focus should be on the attributes and characteristics of a vehicle, rather than, for example, a consideration of what the manufacturer of the vehicle thought it should be used for or how a particular owner of the vehicle might wish to use the vehicle.
[34][1991] 1 VR 64.
39.Mr Ingram argued that the attributes and characteristics of the three forklifts used by SRS are such that the answer to the question should be “no”.
Defendant’s Submissions
40.Ms Kaye submitted that the question posed can be resolved by whether the forklift the plaintiff was driving at the time of injury can be deemed a motor vehicle because it was apt for use on a road or road related area and, if it can, the result must be, that the jolting incident of injury is to be treated as a transport accident pursuant to the TAA.
41.By reference to Mr Vella’s affidavit, Ms Kaye relied on the characteristics and safety features of the forklifts so described as an aid in determining whether they are a motor vehicle and that included:[35]
(a) Indicator;
(b) Horn;
(c) Headlights;
(d) Seatbelt;
(e) Rear-vision mirrors;
(f) Adjustable full suspension seat with arm rests.
[35]Exhibit D1, DCB 7, Affidavit of Mr David Vella at paragraph [8].
42.Ms Kaye submitted that the characteristics and safety features of each of the forklifts are consistent with vehicles that are used on roads and thus make them apt for such use. As well, the ‘outside’ forklift was registered with VicRoads although not the two ‘inside’ forklifts and Ms Kaye submitted that the capacity for registration of one of the forklifts by VicRoads is a relevant fact.
43.Ms Kaye also submitted that the TAC as part of the process that resulted in granting the plaintiff a Serious Injury Certificate must have considered the forklift a deemed motor vehicle.
Plaintiff’s Reply
44.Mr Ingram submitted that a consideration of the total sum of the factors identified from the evidence should lead to the conclusion that the forklift in use when the plaintiff was injured does not fall within the definition of a ‘motor vehicle’.[36]
[36]Exhibit P1, PCB 325, Plaintiff Submissions at paragraph [24].
45.Mr Ingram submitted that the list of characteristics of the forklifts identified in Mr Vella’s affidavit are attributes equally applicable to a vehicle to be operated in a warehouse and, therefore, is not determinative that they were intended for road use.
46.Mr Ingram emphasised that in determining whether the forklift should be classified as a motor vehicle a distinction was called for between intention of use and the purpose to which the forklifts were deployed. Mr Ingram submitted that the common evidence is that the forklifts were not intended to be driven on a road and were only to be used at the warehouse.[37]
[37]Transcript (“T”) 14, Line (“L”) 7-9.
47.Mr Ingram submitted that it was of no moment that the evidence failed to identify which of the three forklifts the plaintiff was driving on 5 November 2015, because the uncontradicted evidence is that none of the three of them was used on the road.
Analysis
48.The definition of a motor vehicle in the RSA, is of a vehicle used or intended to be used on a highway. If the question was as straightforward as whether the defendant’s forklifts were a vehicle that had ever been used on a highway, the answer would be simple, and it would be ‘no’. However, the question cannot be answered by reference to that factor alone, because of the second limb to the definition, encapsulated by the words “intended to be used” on a highway.
49.One obvious feature of the statutory definition of a motor vehicle, is that it is bereft of any mechanism of objective measurement. However, in Hogan,[38] the Court of Appeal offered this guidance, when it said at paragraph 33:
The authorities make it plain that the words “used” or “intended to be used” in the definition of motor vehicle have different meanings. “Used” refers to how the vehicle is actually used whereas the expression “intended to be used” directs attention to an objective assessment of what the vehicle is “suitable or apt” or “meant” for”.
[38](2013) 41 VR 112.
50.From the statement in Hogan, I take it to be, that it is relevant, but not decisive, that the forklifts were meant by the manufacturer or by the user as suitable or apt for picking up and putting down and carrying of loads. In Hogan, the vehicle in question was a ‘Polaris’ brand off road utility vehicle. The claimant wanted the vehicle to be modified in order to enable him to return to motorcycling activities and to resume seeing many of his motorcycling friends for recreational use following a significant transport accident. He applied for financial assistance to secure a suitably modified Polaris quad bike to be used for his recreational activities. The TAC declined that request. Its position was that the Polaris was a “motor vehicle”. Croft J at first instance on review of the decision of the Victorian Civil and Administrative Tribunal (VCAT) determined that the Polaris was not a motor vehicle for the purposes of the Act, and allowed the appeal, and ordered TAC to fund the purchase of the Polaris.
51.On appeal from the decision of Croft J, the Court of Appeal was required to determine TAC’s liability to fund the purchase of a recreational motor vehicle to be used in the rehabilitation of a person injured in a transport accident. However, the first question in the appeal was whether the Polaris was a motor vehicle because that question determined the subsequent matters of agitation about the funding of the same and liability to do so by the TAC. The Court of Appeal set aside Croft J’s finding and held that the Polaris was a motor vehicle for the purposes of the Act.
52.There are evident points of difference between Hogan, and this application. A quad bike is a very different thing in capabilities and functions from a forklift. But that is arguably too superficial and subjective a point of difference to offer much assistance in answering the question. On the other hand, whereas the Court of Appeal in Hogan pointed out that there was no evidence before VCAT or Croft J as to how or where Polaris quad bikes were actually used, and because there was no evidence of the types of areas on which that kind of vehicle had been driven or ridden, the argument shifted to the second of the two limbs in the definition, namely the vehicle’s “intended” use. However, before me the evidence relied on by the plaintiff, and not disputed by the defendant, is clear concerning the use of the three forklifts, and it is that that they were not driven outside the property of SRS and not used for any purpose other than the functional work associated with the use of forklifts in a factory environment. An unexplained fact, as I have already mentioned, is why the ‘outdoor’ forklift was registered but not the two ‘indoor’ forklifts. Otherwise, and in light of the state of the evidence, I am satisfied that the forklifts are not captured by the first part of the definition. What then of the expression ‘intended use’?
53.The decision of Ball, earlier mentioned, concerned whether a motorcycle that had long fallen into disrepair and which was no longer fit to be ridden on public roads and was only used on a private farm as a paddock bike, was a motor vehicle. The Court of Appeal decided that the motorbike was a motor vehicle. At the time of the decision in Ball, the definition of motor vehicle in the RSA, was not in its current form, but the differences do not affect the application of the principles expressed in Ball to the question posed.
54.Addressing the limb of “intended” use as part of the definition of a motor vehicle, the Court of Appeal focused on the attributes of the motorcycle. It was not the use in fact being made of the motorcycle by the user that was determinative for the relevant limb of the definition; rather it was what the motorcycle was suitable, apt or meant for, having regard to its characteristics. On that analysis, the attributes of the particular motorcycle was judged fit for use on the smooth surface of a highway shared with other vehicles and thus it was held to be a motor vehicle as defined.
55.Buchanan JA said this:[39]
The motor cycle ridden by the respondent was known as a Honda ST70. Photographs of the motor cycle in evidence before the tribunal reveal a rather dwarfish motor cycle with small wheels but a large seat and high handle bars suitable to be ridden by an adult and a passenger. It has normal road-going accessories such as mudguards, indicators and lights (although the headlight does not work) and is equipped with conventional suspension, brakes and tyres of a type usually seen on road-going motor cycles or scooters. In his evidence the national parts, service and warehouse manager of Honda Australia said at p. 10 of the transcript:
It was fully fitted from the factory with stop and tail light, a headlight, a warming device, a horn, and directional indicators, and also a rear number plate. ... It's three-speed transmission. There is no clutch but it requires shifting of the gear pedal with foot
The motor cycle was registered at the beginning of its life and was ridden on the roads by a resident of Elwood. He gave it to a neighbour who let the registration expire, and who in tum gave it to the owner of the farm where the accident occurred. The farm is some two kilometres from the nearest public road, and the intervening country is so rough that it cannot be negotiated by the Honda; it would be necessary to carry the Honda by a four-wheel drive vehicle to reach the road. The owner said that he had kept the motor cycle at his farm for the last six or seven years. It was used by his children to ride in the paddocks. In the owner’s words:
The motor cycle has over the years fallen into a bit of disrepair, the headlight is broken but the motorbike still goes.
[39][1999] 1 VR 64, [4-5].
56.Buchanan JA said that it would be impermissible to determine the question by evidence of the state of mind of the manufacturer or that of the current owner. Neither, did he say, was it appropriate to rely upon evidence of facts such as the place at which a vehicle is kept or the use to which it is put for the purpose of revealing the owner’s state of mind. Instead, the question depended upon the characteristics of the vehicle itself.
57.The Court of Appeal in Hogan, adopted the reasoning in Ball, and said that when considering an “intended” use, the focus should be objectively on the attributes and characteristics of the vehicle in question and to ask for what use it is suitable or apt. It too decried recourse to intended use as being informed by a subjective analysis requiring, for example, evidence of what the manufacturer might have thought the vehicle should be used for or how a particular user might wish to use the vehicle.
58.Thus on its analysis, the Court of Appeal in Hogan, decided that the Polaris is:
suitable or apt for driving on bush trails or fire access tracks in forested areas, on open scrubby areas such as may be found in desert, country or in alpine regions, or perhaps on open beaches, and so forth. The knobbly tyres and long track suspension give the impression the vehicle is more suited for rough terrain driving, albeit on cleared tracks or open spaces wide enough for a four wheel vehicle, rather than on smooth surfaced carriageways of the kind found in towns or cities. Being a high performance vehicle, it might also be suitable for competition driving on dirt tracks or motor courses. The Polaris quad bike is suitable or apt for off-road recreational driving on areas of public land similar in nature to those where Mr Hogan formerly rode motor bike”.[40]
[40](2013) 41 VR 112, [37].
59.The Court of Appeal went on and said that:
…such areas, many of which would be open to the public, fall within the definition of a “road related area”. Such areas may not all be roads in the sense of areas developed for or having as one of their main purposes the driving of motor vehicles. But they are areas which are open to or used by the public for riding or driving motor vehicles. Intended off-road driving use is not a contra-indication to the vehicle being a motor vehicle as defined. If the vehicle is suited for “off road” driving on both public and private land, it does not matter that a particular user might only intend it for use on private land: it is none the less a “motor vehicle”.[41]
[41](2013) 41 VR 112 [38].
60.Accordingly, in Hogan in applying “intended” use to the attributes of the Polaris quad bike, in the context of “road related area” the Court determined it to be a motor vehicle under the Act.
61.There are other authorities to which the parties referred that I should address. Ms Kaye noted the decision of Newton v Incorporated Nominal Defendant (“Newton v IND”).[42] The case involved a large excavator, equipped with caterpillar tracks, and capable of moving at a very slow speed for limited distances; it was carried to its place of operation on a low-loader. His Honour, Newton J held that it was not at the time of the subject accident being “used upon a highway”, and held further that it was not “intended for use on a highway”. His Honour expressed the test this way, at p. 262:
I now turn to the question whether the excavator was a vehicle ‘intended for use on any highway’ within the meaning of the definition of ‘motor car’ in s. 3(1) of the Motor Car Act 1958. “In my opinion a sufficient test of whether a vehicle is ‘intended for use on any highway’ is whether a reasonable man looking at the vehicle with full knowledge of its characteristics would say that one of its users was use on a ‘highway’ as defined in s. 3 of the Motor Car Act 1958, that is ‘any street road lane bridge thoroughfare or place open to or used by the public for passage with vehicles’, or perhaps whether it was suitable or apt for such use: cf. Burns v. Currell, [1963] 2 Q.B. 433, at p. 440; [1963] 2 All E.R. 297, at p. 300.
[42][1970] VR 257.
62.Newton J in his reasons referred to the decision of the English Court of Appeal of Burns v. Currell.[43] That case considered the position of a go-kart which was on one occasion driven on a highway. The question was whether it was a “mechanically propelled vehicle intended or adapted for use on roads”. Lord Parker C.J., with whom Ashworth and Winn JJ. agreed, said, at p. 440:
Thus in the ordinary case it seems to me that there will be little difficulty in saying whether a particular vehicle is a motor vehicle or not. But to define exactly the meaning of the words ‘intended or adapted’ is by no means easy. I think that the expression ‘intended’, to take that word first, does not mean ‘intended by the user of the vehicle either at the moment of the alleged offence or for the future’. I do not think that it means the intention of the manufacturer or the wholesaler or the retailer; and it may be, as Salmon, J., said in Daley v. Hargreaves, that it is not referring to the intention as such of any particular purpose. Salmon, J., suggested that ‘intended’ might be paraphrased as ‘suitable or apt’. It may be merely a difference of wording, but I prefer to make the test where a reasonable person looking at the vehicle would say that one of its users would be a road user.
In deciding that question the reasonable man would not, as I conceive, have to envisage what some man losing his senses would do with a vehicle; nor an isolated user or a user in an emergency. The real question is: is some general use on the roads contemplated as one of the users?
[43][1963] 2 Q.B. 433.
63.Lord Parker went on to discuss the evidence in this way:[44]
The evidence was that this driver had used this vehicle on this day alone; that he had never used it before. There was no evidence that other people used these vehicles on the road ...
[44][1963] 2 Q.B. 433, 440.
64.Another authority referred to is Siciliano v. Acme Knitters & Dyers Pty. Ltd (“Siciliano”),[45] which was an appeal from a County Court judge and concerned a forklift. The trial judge held that the forklift was not a “motor vehicle” in that it was not “used or intended to be used on a highway” within the meaning of the RSA.
[45][1994] 1 VR 632, 639.
65.The appeal came on before Southwell and O’Bryan JJ. The facts related in the headnote, are that the appellant was seriously injured by a fork-lift at the premises of his employer in the course of his employment and sued for damages, including damages for pecuniary loss. Section 135(1)(ac) of the Accident Compensation Act 1985, (as it then was) allowed a worker who was injured in a “transport accident” within the meaning of the TAA and whose injury arose out of or in the course of employment to institute proceedings for damages in respect of pecuniary loss. Section 3(1) of the TAA, defined a transport accident as “an incident directly caused by, or directly arising out of, the driving of a motor car or motor vehicle...” and “motor vehicle” was defined as, a “vehicle which is used or intended to be used on a highway or in a public place and which has its own motive power...”. The forklift was unregistered and used only within the employer's premises. The issue was whether the forklift was a motor vehicle within the definition.
66.Southwell and O'Bryan JJ cited Newton J, and to like effect, the comments from Marks J in Transport Accident Commission v. Serbec,[46] who said:
There was in any event sufficient evidence to justify a conclusion that the dune buggy met the objective criteria of a vehicle “intended to be used in a public place”. It was a homemade vehicle with all the attributes of one built for the purpose of enjoyment in such places as beaches and other areas to which members of the public legally have access for enjoyment in the use of such vehicles.
[46](1993) 6 VAR 151, 156.
67.Ultimately, the Court of Appeal in Siciliano was not satisfied that the appellant had discharged the onus of proof that the forklift was intended to be used upon a highway.
68.Reverting to the decision in Ball, Buchanan JA referred to the statement of Southwell and O'Bryan JJ. in Siciliano at p. 640, that evidence of use was relevant to the question whether a particular vehicle was intended to be used on a highway. His Honour noted how in Newton v IND, Newton J had regard to evidence of use: the excavator was always transported to and from construction sites by low loader and when it was in operation on a road, the area in which it was operating was always closed to the public. Buchanan JA said that evidence of use may throw light on or reinforce or demonstrate what a particular vehicle is suitable or meant for. He said:
Thus the limited road use in fact made of the excavator reinforced the impression created by its physical characteristics. However, evidence of actual use should not be employed as a means of revealing the current intention of the owner or rider. In my view that is the purpose for which the appellant seeks to employ the evidence of use which it points to in this case. The appellant pointed to the facts that the motor cycle was situated in a place remote from the nearest road, it was currently used only on rough ground, and had last been used on a highway some 20 years before. Those circumstances may warrant the conclusion that the owner had no intention of using the motor cycle on a highway. But in my opinion that is not the test. The use in fact being made of the motor cycle was not dictated by the nature of the motor cycle and threw no light on the question of the use or uses for which this vehicle with its particular physical attributes was suitable, apt or meant for. Rather this was an eccentric use of a vehicle that remained one suitable or meant for the highway”.
69.The Court in Ball also had occasion to comment on the decision in Burns v. Currell,[47] where Newton J in Newton v IND had cited Lord Parker’s statement referred to at paragraph 63 of these reasons. From all of this, Buchanan JA said that:[48]
In my view the word “intended” in the definition is used in the sense of “suitable or apt”, as Lord Parker said, or “meant for”, as Marks J. said in Transport Accident Commission v. Serbec in a passage at 155, in which he spoke of the distinction between the expression “is used” and the expression “intended to be used”. He said:
The distinction between the above two expressions in the definition of “recreation vehicle” is between how a vehicle is actually used and such of its characteristics as may lead an objective bystander to think what its use is or may be, in other words, what it is “meant for”.
[47][1963] 2 QB 433.
[48][1999] 1 VR 64, [14].
70.Buchanan JA concluded that:[49]
The characteristics or attributes of this motor cycle were those of a road-going vehicle, that is, they fitted it for use on the smooth surface of a highway shared with other vehicles. The motor cycle had not been modified to adapt it for use as a paddock bike. It was not fitted with knobbly tyres. The suspension had not been altered to give long travel useful for dealing with rough terrain. Its mudguards had not been raised from the tyres to prevent them from being blocked by mud. The lights had not been removed, albeit the headlight did not work. The vehicle remained one which was basically suitable or apt or meant for the highway.
[49][1999] 1 VR 64, [15].
71.What I have been able to draw from the various authorities is that the question called to be answered cannot be arrived at by application of binding authority. It is a question of fact.
72.It was evident in the course of argument, that Mr Ingram would have it, that ‘intended use’ is not a concept synonymous with ‘capable of use’. To my way of reckoning, that must be so. Mr Ingram submitted that if otherwise, if a vehicle is capable of use on a road, it would equate to intended for use on a road, and it could capture a crane on one of Melbourne’s wharves which, he contended would be an absurd result.[50]
[50]T 46, L 15.
73.I have taken into account the uncontested evidence of the exclusive use by SRS of all three forklifts inside but not outside the factory premises. That use could hardly be regarded as an excentric use of the vehicles; indeed, it might be thought of as an entirely conformable use of the vehicles. However, the state of the authorities makes it plain that the fact of ordinary or conformable use will not invariably exclude their use as being suitable or apt for or meant for the road. Nonethless, the ordinary or conformable and exclusive use of the three vehicles within the premises seems to me to be a fair starting point.
74.I accept that a forklift, such as any of the three in question, could in a given case be capable of going onto a road, and so potentially fulfil the first part of the definition of a “motor vehicle”. So, for example, the fact that one might in everyday life observe forklifts moving in and about markets or factories on industrial estates and moving product from one place via a road to within premises might without particular need for a consideration of its physical or mechanical characteristics satisfy the definition of a vehicle that is used on a highway. That was the type of contest at the heart of the decision of the Court of Appeal in Smith v Transport Accident Commission,[51] to which Mr Ingram referred. A reading of Smith, however, offers no assistance to the meaning to be afforded the second part of the definition. Mr Ingram submitted that the Court of Appeal in Smith “specifically disapproved” Newton v IND.[52] That is not the case. Rather, Marks and Gobbo JJ in Serbec, said Newton J’s statement regarding “used on the highway” was unnecessary in order to decide the issue before him and should be considered obiter, but in any event their Honours said that there was more than ample evidence before Newton J, for concluding the use of the Caterpillar at the time of the accident was its ordinary use. Smith did affirm the principles distilled in Ball and Hogan as they relate to the first limb of the definition. However, because of the abandonment of a number of grounds of appeal by the appellant, the only question the Court of Appeal was left to decide in Smith was whether VCAT applied the wrong test of whether a vehicle is used on a highway within the meaning of the definition. Smith is of no real assistance on the question to be decided.
[51] [2005] VSCA 25.
[52]T 42, L 28.
Findings
75.I am not satisfied that the forklift driven by the plaintiff on 5 November 2015 is a motor vehicle for the purposes of the definition of ‘transport accident’ in the TAA.
76.First, I am not satisfied that any of the forklifts operated by SRS were “intended to be used” on a highway in the sense of any of them being suitable or apt or meant to be used in that way. I am satisfied that by reference to an objective analysis the forklifts are very different from the Polaris quad bike in Hogan that was found to be:
·suitable or apt for driving on bush trails or fire access tracks in forested areas; or
·on open scrubby areas such as may be found in desert, country or in alpine regions, or perhaps on open beaches, and like places;
·also possibly suitable for competition driving on dirt tracks or motor courses being in the nature of a high performance vehicle;
·suitable or apt for off-road recreational driving on areas of public land similar in nature to those where Mr Hogan formerly rode motor bike.
77.As is evident from above, the quad bike was found to be apt for driving in places that included public land despite knobbly tyres and long track suspension giving the impression that it was a vehicle that was more suited for rough terrain driving, albeit on cleared tracks or open spaces wide enough for a four wheel vehicle, rather than on smooth surfaced carriageways of the kind found in towns or cities. Although the nature of the terrain for which the bike was more suited was not paved carriageways, nonetheless, it was a vehicle suitable for use on carriageways. In similar fashion, the motor bike in Ball, despite having fallen into disrepair, did not affect the fundamental aspect of what is was apt or suitable for. I am not similarly satisfied about the forklifts in this case. Although the SRS forklifts were apt for driving, a fundamental necessity for their use, I am not satisfied that overall the balance of their features render them suited or apt, in the sense of being meant for use, on a highway or public roads.
78.Second, there is no question but that certain features of the forklifts made mention of by both Mr Ingram and Ms Kaye share a series of characteristics that would be common with a vehicle intended for use on a road. This was a matter of some emphasis by Ms Kaye in light of her submissions addressing the decision in Siciliano. There, despite the finding that the forklift had not been shown to be a motor vehicle, Ms Kaye highlighted the comparative lack of the features of the forklift there described compared to the three SRS forklifts. The Court noted that:[53]
The brochure and the photographs depict what could be described as a normal fork-lift; it has four pneumatic tyred wheels, those in front being larger than those at the rear; it has two lifting tynes projecting from the front, which are lifted by means of a two beamed extendable tower, which can be raised well above the upper frame of the fork-lift; the roof is a protective frame, but is not otherwise a cover; there are two small lights mounted one on each side at the top of the frame much higher than normal headlights; there is a driver's seat but no other seat; it has a steering wheel, footbrake, and hand operated levers; it is powered by an internal combustion engine although there is no evidence as to the size of the engine in the relevant fork-lift; it has a maximum speed of 19.5 km. per hour, or 12.1 m.p.h.; it has no cabin shell, or doors. The brochure describes the fork-lift as of the 1 to 3 ton series. There is no evidence as to the precise lifting capacity of the relevant fork-lift; nor is there any evidence as to the nature of the suspension system, or whether that system is suitable only for relatively smooth concrete factory floors, or is also suitable for use on normal roads.
[53] [1994] 1 VR 632, 634-635.
79.Also in Siciliano, the Court referred to evidence that had been given below from the Assistant General Manager of the respondent that:
The fork-lift in question is unregistered, as are all our fork-lift vehicles. They are used solely within the confines of our premises.
80.The lack of registration in Siciliano is not of equivalence before me because one of the three SRS forklifts was registered but, just as the Assistant General Manager said in Siciliano, like evidence was given by Mr Vella, that each forklift was used exclusively within the premises of SRS. However, Ms Kaye emphasised that in Siciliano, the Court said that:[54]
We are prepared to accept that it was open to his Honour, having regard to the discussions which occurred, to be satisfied that on occasions a vehicle which might fairly be described as a normal fork-lift goes upon a highway or a public place in this State. However, neither the judge nor this court may in the absence of evidence go further; in particular, the court cannot say that fork-lifts which are driven upon highways, if not public places, look identical to or even very similar to the relevant fork-lift. It is to be assumed that if a fork-lift is driven upon a highway, it is driven lawfully; that is to say, it is registered, and to obtain registration it would have to be equipped with at least head and tail lights, turn indicator lights, a horn, and a seat belt; and of course, it would carry registration plates, at front and rear. The reasonable man (who was so often mentioned during the submissions to this court) upon an inspection of such a fork-lift, equipped for registration and in fact registered, would be looking at a vehicle markedly different from that which is depicted in the photographs of the relevant fork-lift. The reasonable man might, however, see in a public place which is not a highway, a fork-lift which is not registered, or capable of being registered.
…
Counsel for the appellant submitted that once it was acknowledged that fork-lift vehicles are commonly seen operating in public places, then every fork-lift vehicle, whether or not it has ever been used on a highway or in a public place, is a motor vehicle in that it is “intended to be used on a highway or in a public place.
[54]Ibid, 636.
81.Despite these comments, their Honours went on to say this:
We accept that the Full Court in Serbec upheld the earlier decisions in Burns v. Currell and Newton v. I.N.D. that in general the appropriate test is objective. However, as we have said, this does not involve a finding that evidence of user is irrelevant. Although each case must be decided upon its own facts, we can envisage that there will be cases, such as the present, where evidence of user will be relevant.
It is not necessary for us to decide further whether there may be cases where evidence of actual intention will be relevant. Counsel for the appellant felt forced to go so far as to submit that once there was evidence that fork-lifts of a type similar to the subject fork-lift were in use on roads or in public places, every forklift of that type in Victoria was a “motor vehicle” within the meaning of the Safety Act. Logically, it may be thought possible to take the submission further; must a vintage motor car in a museum be held to be intended to be used upon a highway?; must a ride-on motor mower, of a type commonly seen mowing grass in parks and on public ovals (both “public places”) which, clearly enough, otherwise fits the description in the relevant definition, be held to be a motor vehicle, notwithstanding that it was purchased solely for use, and has always been used, on private property?; so also with every motorised golf cart, for the reason that some of them are registered (they cross highways during the course of a round of golf); and a similar question could be asked in relation to a variety of motorised machinery never used on highways or in public places. In our opinion, it is unlikely that Parliament intended those results.
82.Ms Kaye emphasised the above passage from Siciliano, that in order for a forklift to be registered and lawfully on a road, it would need to look very different to the forklift it was dealing with when it said that in such a case, “to obtain registration it would have to be equipped with at least head and tail lights, turn indicator lights, a horn, and a seat belt; and of course, it would carry registration plates, at front and rear”. Ms Kaye stressed that each of the SRS forklifts, including the registered forklift, were equipped with those features referred to in the observations made in Siciliano. True as that appears, it should not be overlooked that despite that state of affairs, the Court said that:[55]
At all events, the question whether a particular vehicle is a “motor vehicle” within the meaning of the Safety Act is a question of fact, to be decided upon the evidence adduced. It is not necessary for the court now to consider whether other types of vehicles, with other functions and characteristics, are to be so categorised. It is, we think, sufficient to say that we do not accept as correct the submission of counsel that all fork-lifts of this and any similar type, wherever used, are “motor vehicles”. Upon the evidence in this case, including evidence of user, it cannot be said that the appellant has discharged the onus of showing that the fork-lift was “intended to be used upon a highway or in a public place”. It follows that the relevant accident was not a “transport accident”, and that the trial judge was correct in the order he made.
[55]Ibid, 641.
83.I agree with Mr Ingram that the fact the SRS forklifts were equipped with features that would be required for registration is not determinative evidence of intended use. Each feature can readily be regarded as consistent with their suitability for deployment and use in a warehouse environment for purposes attendant such a commercial undertaking, and for the safety of the operator and those with whom the forklift may come into proximity within the work environment. The fact that the forklifts have some features in common with another type of vehicle intended for use on a road, does not necessitate a conclusion that the forklifts were intended for use on a road.
84.Third, although any of the SRS forklifts could have been used on a road, and one was registered, I do not regard that as defining it, or the other two, unregistered forklifts as a vehicle intended for use on a road. There is no evidence before me, for example, that in being driven to move things in an about the defendant’s premises, the registered forklift or the other two entered onto and off a road. The evidence of the user may reinforce the nature of the vehicle in question, and I have taken some account of the uncontested evidence of the use by SRS of each of the forklifts, and which was to move things in and around the inside factory or outside of the factory but fully within its premises. I recognise that evidence of the lack of use at all of the forklifts outside the factory premises and on a road would have greater probative worth if the question to be resolved turned on the first part of the definition as opposed to the second part of it. Nonethless, the authorities recognise that evidence of user is not irrelevant.
85.Fourth, although the forklifts are battery powered there was no evidence of their range on charge or a suggestion by the parties that it is a relevant factor in an assessment of the question. I have disregarded it. Although the speed seemed capable of more than 5 kph, the evidence did not suggest it was used at a greater speed that that, or what maximum speed could be achieved.
86.Fifth, the argument that because the TAC granted a certificate to the plaintiff it must have decided that the forklift was a motor vehicle is not to say that the motor vehicle is a motor vehicle intended for use on a road.
87.Sixth, the manufacturer handbook offers some assistance on the question, although I recognise that the manufacturer’s intention, although instructive, is not decisive on the question of intended use. However, the handbook is replete with detailed and carefully worded instructions concerning, for example, a risk of tipping of the forklifts; a risk I would consider that is more likely than not increased in a less controlled traffic environment such as on a highway than within a warehouse premise. There are many other references in the handbook that suggest that the forklifts are not a vehicle apt or suited or meant for use on a road. Some of these are expressed as follows:[56]
PROTECT YOURSELF:
· AVOID sudden movements. Operate all controls smoothly.
· NEVER turn on or angle across an incline. Travel slowly.
· TRAVEL on inclines with load uphill or unloaded with the mast downhill.
· TILT mast slowly and smoothly. LIFT or LOWER with mast vertical or tilted slightly back. Use minimum tilt when stacking elevated loads.
· TRAVEL with carriage as low as possible and tilted back.
· SLOW DOWN before turning-especially without load. FAILURE to follow these instructions can cause the truck to tip over! DO NOT JUMP off if the truck tips! HOLD steering wheel firmly. BRACE your feet. LEAN FORWARD and AWAY from the point of impact.
[56]Exhibit P1, PCB 66, 71, 124, 149, 156, 168, 171, 176.
The electric lift trucks described in this manual are equipped with a full suspension swivel seat. See Figure 4. The full suspension swivel seat allows the operator to move the seat to the left and to the right. The seat can be moved 5 degrees to the left and 12 degrees to the right. The full suspension swivel seat allows the operator to better see where he is going when driving the lift truck in reverse.
The fork lift truck is designed to pick up and move materials.
Basic Operating Procedures
Many people make the mistake of thinking that operating a lift truck is the same as driving an automobile. This is not true. Itis true that some lift truck operating procedures are as simple and obvious as driving the family automobile. (Example: Look where you are going, start and stop smoothly, etc.) But a lift truck is a special machine designed to do a much different job than an automobile. Because of the close areas in which a lift truck operates and its other operating characteristics, like rear wheel steering and tail swing, every operator must receive additional training, even if they have a license to drive an automobile.
Steering (Turning)
Most operators can understand the need to be careful when handling loads. But some operators do not realize that a tip-over can occur with an empty lift truck because similar dynamic forces are present. In fact, the lift truck will actually tip over easier when empty, than when loaded with the load lowered. Rearward tilt, off-center loads and uneven ground will aggravate these conditions.
WARNING TRAVEL SLOWLY WHEN TURNING. Lift trucks can tip over even at very slow speeds. The combination of speed and the sharp-ness of a turn can cause a tipover. A lift truck is less stable when the forks are elevated, with or without a load.
WARNING Some lift trucks have mirrors for viewing along the side to observe the tail swing area. These mirrors are an aid to the driver, but are NOT driving mirrors and must NOT be used as such when operating in reverse. Always look in the direction of travel to avoid damage to something or injury to someone.
WARNING Serious accidents can be caused by mast and overhead guards hitting pipes and beams near the ceiling. Watch clearances, especially forks, mast, overhead guard, and tailswing. A lift truck is designed to perform a wide variety of functions within limited space.
Stay away from the edge of the road. Keep the wheels of the lift truck, particularly the steer wheels, on the roadway. If the wheels are allowed to run off the edge of the travel surface onto soft ground, the lift truck can tip over.
Highway Truck, Railroad Cars, and Docks
WARNING Maintain a safe distance from the edge of docks, ramps, platforms, and other similar working surfaces. Watch the "tail swing." Remember when travelling in the forward direction and the steering wheel is turned to move the lift truck away from the edge of the dock the rear will swing toward the edge. This action can cause the lift truck to fall off the dock.
88.Seventh, despite the fact of the forklifts possessing a number of features that are consistent with a motor vehicle suitable use on a highway, other features beyond the characteristics described above, and that are peculiar to them, reinforces the judgment I have arrived at. Notably, the forklifts were not fitted with windshield glass making road driving in the vicinity of other motor vehicles likely more hazardous to the forklift operator. The forklifts were equipped with very small wheels made of solid rubber. The evidence did not extend to explain if they were reinforced with steel or other substances that would be typically the case, for example, with a road motorbike and different still for a motor vehicle intended for everyday and typical road use. The fitting of tynes aided their function in lifting and lowering and carrying loads but is counterintuitive to a motor vehicle intended for highway use.
89.I am satisfied that the use that was made by SRS of the forklifts was dictated by the nature of the forklifts and their functions and characteristics and does throw light on the question of the use or uses for which as vehicles they were suitable, appt or meant for. Overall, and by objective measure, I am not satisfied that a capacity for general use on the roads was contemplated as one of the users.
90.For the reasons above, the answer to the question is No.
Conclusion
91.I will hear the parties on the form of final orders required.
Attachment A
[32]Exhibit P1, PCB 169-170, Hyster Forklift Operations Manual at paragraphs [121-122].
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