Commercial Building Centre Pty Limited (ACN 083 816 497)T/As Commercial Building Centre v NRMA Insurance Limited (ACN 000 016 722)
[2004] ACTCA 3
•19 March 2004
COMMERCIAL BUILDING CENTRE PTY LIMITED (ACN 083 816 497)T/AS COMMERCIAL BUILDING CENTRE v NRMA INSURANCE LIMITED (ACN 000 016 722) [2003] ACTCA 3 (19 March 2004)
INSURANCE - motor vehicle - whether injury caused by or arising out of the use of a motor vehicle - employer claim for contribution from compulsory third party insurer.
Motor Traffic Act 1936 (ACT)
Fawcett v BHP By-Products Pty Ltd (1960) 104 CLR 80
Government Insurance Office of New South Wales v King (1960) 104 CLR 93
Harvey Trinder (NSW) Pty Ltd v Government Insurance Office of New South Wales (1966) 114 CLR 449
State Government Insurance Commission (SA) v Stevens Bros Pty Ltd (1984) 154 CLR 552
Government Insurance Office of New South Wales v RJ Green & Lloyd Pty Ltd (1966) 114 CLR 437
C E Heath Underwriting and Insurance Pty Ltd v George Weston Foods Pty Ltd (unreported, Supreme Court of Victoria Appeal Division, Marks, Gobbo and Coldrey JJ, 6 October 1993)
Balfour Beatty Power Constructions (Australia) Pty Ltd v Government Insurance Office of New South Wales (1996) 24 MVR 162
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA No 6-2003
No. SC 661 of 2001
Judges: Crispin P, Cooper & Weinberg JJ
Court of Appeal of the Australian Capital Territory
Date: 19 March 2004
IN THE SUPREME COURT OF THE ) No. ACTCA 6-2003
)
AUSTRALIAN CAPITAL TERRITORY ) No. SC 661 of 2001
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:COMMERCIAL BUILDING CENTRE PTY LIMITED
(ACN 083 816 497) T/AS COMMERCIAL BUILDING CENTRE
Appellant
AND: NRMA INSURANCE LIMITED
(ACN 000 016 722)
Respondent
ORDER
Judges: Crispin P, Cooper & Weinberg JJ
Date: 19 March 2004
Place: Canberra
THE COURT ORDERS THAT:
The appeal is dismissed.
The appellant pay the respondent’s costs of and incidental to the proceedings, including reserved costs, to be taxed if not agreed.
IN THE SUPREME COURT OF THE ) No. ACTCA 6-2003
)
AUSTRALIAN CAPITAL TERRITORY ) No SC 661 of 2001
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:COMMERCIAL BUILDING CENTRE PTY LIMITED
(ACN 083 816 497) T/AS COMMERCIAL BUILDING CENTRE
Appellant
AND: NRMA INSURANCE LIMITED
(ACN 000 016 722)
Respondent
Judges: Crispin P, Cooper & Weinberg JJ
Date: 19 March 2004
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
On 30 July 1999, one Kevin Delaney was injured in the course of his employment with Commercial Building Centre Pty Ltd (‘the employer’). Delaney commenced proceedings in this Court seeking damages in respect of his injuries against his employer. The grounds relied upon by Delaney as entitling him to compensation were a failure of the employer to provide a safe system of work and negligence as pleaded and particularised in par 2(c) of his amended statement of claim dated 28 October 2002.
On 2 July 2002, the employer filed and served a third party claim against NRMA Insurance Limited (‘NRMA’). By its third party claim, the employer claimed contribution or indemnity from NRMA as the compulsory third party insurer of a Hino truck registered number YAQ 23T. The relevant policy of insurance was issued by NRMA under the Motor Traffic Act 1936 (ACT) (‘the Act’). The employer contended that if Delaney was injured in circumstances for which it was liable, then the injury arose out of or in the course of the use of the truck, namely in the course of loading it, and that NRMA was obliged under the third party insurance policy to indemnify it in respect of such liability.
The action between Delaney and his employer was settled by a consent judgment entered on 18 February 2003. The action continued as between the employer and NRMA in respect of the liability, if any, of NRMA to indemnify the employer in respect of its liability under the consent judgment to Delaney. For the purpose of determining this issue, the employer and NRMA prepared an agreed statement of facts. So far as presently relevant, that statement of facts provided:
19. On 30 July 1999, Mr Delaney was one in a team of three people helping to move 20-kilogram bags of plaster from a pallet on the ground, onto a delivery truck for the purposes of subsequent delivery. “Mick”, the man standing beside the pallet, grasped the first bag from the stack at about waist height and passed it to Mr Delaney, who received it. Mr Delaney turned around and taking a small step, passed the bag to “Brian” who placed it onto the tray of the 7 tonne truck. On the second occasion, Mick grasped the next 20-kilogram bag from the pallet, and again at about waist height, passed it to Mr Delaney who received it and turned to pass it to Brian, to place onto the truck. Brian is taller than Mr Delaney and this meant that when he passed the bag to Brian he (Mr Delaney) went up on his toes to pass the bag at an appropriate level for Brian to receive it. It was at that precise moment that Mr Delaney heard a popping sound and immediately experienced a sharp pain in his back that shot down into his right leg.
Justice Connolly, who heard the matter at first instance, was of the view that Delaney’s injury, being caused in the circumstances disclosed in the agreed statement of facts, did not arise out of the use of the truck. His Honour said, after a consideration of the authorities:
Where a worker takes part in a process of handing material to another worker, who goes on to load the vehicle, it seems to me that the action is too remote from the use of the vehicle, and the responsibility should properly lie with the employer. As Windeyer J said in Government Insurance Office of New South Wales v RJ Green & Lloyd Pty Limited at 447:
“The words ‘injury caused by or arising out of the use of the vehicle’ postulate a causal relationship between the use of the vehicle and the injury. ‘Caused by’ connotes a ‘direct’ or ‘proximate’ relationship of cause and effect. ‘Arising out of’ extends this to a result that is less immediate; but it still carries a sense of consequence. It excludes cases of bodily injury in which the use of the vehicle is a merely casual concomitant, not considered to be, in a relevant causal sense, a contributing factor.”
Justice Connolly dismissed the third party notice and ordered the employer to pay the costs of NRMA.
The employer, by its notice of appeal, contends that his Honour erred in the following respects:
2. The grounds of the appeal are:
(a)That the learned trial judge erred in law in finding that the plaintiff’s injury did not arise out of the use of a motor vehicle.
(b)That the learned trial judge erred in finding that the action in which the plaintiff was engaged at the time he was injured was too remote from the use of the vehicle.
(c)That the learned trial judge erred in finding “that for the loading activity to arise from the use of the motor vehicle the action of the worker which gives rise to the injury must at least be part of a single process of loading.” (Paragraph 18)
(d) That the learned trial judge erred in finding that as the plaintiff has and intended to have no contact with the vehicle the injury did not arise out of the use of the vehicle.
Section 54(1) of the Act sets out the requirements of a third party policy of insurance issued in accordance with the Act. So far as is presently relevant, that section provides:
54(1) In order to comply with the requirements of this Part, a third-party policy –
...
(b) shall, where the policy is issued in relation to the use of a particular motor vehicle, insure the owner of the motor vehicle mentioned in the policy and any other person who at any time drives the motor vehicle, whether with or without the authority of the owner, jointly and each of them severally, against all liability incurred by that owner and that person jointly, or by either of them severally, in respect of the death of, or bodily injury to, any person caused by or arising out of the use of the motor vehicle in any part of the Commonwealth;
The prescribed form of the policy is found in Schedule 2 Form A of the Motor Vehicle (Third Party) Insurance Regulations. It provides:
[t]he insurer shall insure the owner and any other person who at any time drives the motor vehicle, whether with or without the authority of the owner, jointly and each of them severally, against all liability (except a liability referred to in subsection (2) of section 54 of the Act) incurred by the owner and that person jointly, or by either of them severally, in respect of the death of or bodily injury to any person caused by or arising out of the use of the motor vehicle in any part of the Commonwealth of Australia ...
The third party proceedings raised two issues for determination by Justice Connolly. The first issue was whether Delaney sustained a bodily injury caused by or arising out of the use of the Hino truck Australian Capital Territory registered number YAQ 23T, it being the insured motor vehicle under the relevant compulsory third party insurance policy. The second issue was whether, if Delaney was so injured, the employer was liable to pay damages or compensation to Delaney in respect of such injury. If both questions were answered in the affirmative, the employer was entitled to be indemnified by NRMA under the compulsory third party insurance policy in respect of such liability: Fawcett v BHP By-Products Pty Ltd (1960) 104 CLR 80 at 85; Government Insurance Office of New South Wales v King (1960) 104 CLR 93 at 97, 99, 101, 106.
Whether the bodily injury was caused by or arose out of the use of an insured motor vehicle is simply a question of fact, to be proved by evidence adduced by the party seeking the benefit of the compulsory third party insurance: Government Insurance Office of New South Wales v King at 95, 104, 105. Each case must be determined on its own facts. Nothing can be gained by assuming different facts and seeking to arrive at a conclusion from them: Harvey Trinder (NSW) Pty Ltd v Government Insurance Office of New South Wales (1966) 114 CLR 449 per Windeyer J at 452-3.
The authorities establish that the use of an insured motor vehicle includes the doing of all things reasonably incidental to its normal use as a motor vehicle: Fawcett at 92; King at 96; State Government Insurance Commission (SA) v Stevens Bros Pty Ltd (1984) 154 CLR 552 at 556. Where the motor vehicle is a truck designed to carry cargo or goods, the loading of the vehicle is a necessary element of its normal use. However, not all things done which are incidental or ancillary to such a loading necessarily in themselves amount to a use of the motor vehicle. Thus in Government Insurance Office of New South Wales v RJ Green & Lloyd Pty Ltd (1966) 114 CLR 437, Barwick CJ, with whom McTiernan and Taylor JJ agreed, said (at 442 – 443):
... The words “arising out of” in s 10 of the Act and in the indemnity clause of the policy are not merely, if at all, explicative of the words “caused by”; they are really used in contrast to them; and in the total expression are extensive in their import. Bearing in mind the general purpose of the Act I think the expression “arising out of” must be taken to require a less proximate relationship of the injury to the relevant use of the vehicle than is required to satisfy the words “caused by”. It may be that an association of the injury with the use of the vehicle while it cannot be said that that use was casually related to the injury may yet be enough to satisfy the expression “arise out of” as used in the Act and in the policy.
On the other hand, injuries received away from the vehicle but in the course of bringing goods or things to it to be loaded upon it ought not, if no more appears, to be regarded as having arisen out of the use of the motor vehicle. To say that the operation of loading and unloading a transport vehicle is part of its use is to state the matter too widely. ...
Windeyer J, in Green & Lloyd, stated the statutory requirements of ‘bodily injury caused by or arising out of the use of a motor vehicle’ in the following terms (at 447):
... The policy covers a vehicle of a kind described when used for its ordinary purposes. In the present case the vehicle, a motor truck, was classified as a “goods vehicle”. The loading of a vehicle designed to be used, and ordinarily used, for the carriage of goods is a necessary element in its ordinary use. Loading it is incidental to the use of it in the normal way. But that does not mean that whatever is done that is incidental or ancillary to such loading is itself a use of the vehicle in the relevant sense. Therefore, if a person suffers bodily injury when engaged upon some task connected with loading, the question whether his injury was caused by or arose out of the use of the vehicle depends upon whether it was a consequence, direct and not remote, of the operation of loading.
But the question that arises in cases such as this is not answered simply by asking was the vehicle being used.
His Honour continued by analysing the meaning of the phrase “injury caused by or arising out of the use of the vehicle”. See quotation at [4] above.
The observations of Barwick CJ and Windeyer J in Green & Lloyd at 442–443, and 447 were cited with approval in State Government Insurance Commission (SA) v Stevens Bros Pty Ltd as authority for the proposition that the expression ‘arising out of’ must be taken to require a less proximate relationship of the injury to the relevant use of the vehicle than is required to satisfy the words ‘caused by’ (at 555). However, the majority judgment (Murphy, Wilson, Brennan and Deane JJ) did not doubt that some proximate relationship must still exist, and that although a broad view should be taken as to what amounts to the use of a vehicle in terms of the risk insured under the compulsory third party insurance policy, there are limits to the acts which constitute ‘use’ for the purpose of the policy: see also Dawson J at 559. Those observations have also been applied by the Appeal Division of the Supreme Court of Victoria in C E Heath Underwriting and Insurance Pty Ltd v George Weston Foods Pty Ltd (unreported, Supreme Court of Victoria Appeal Division, Marks, Gobbo and Coldrey JJ, 6 October 1993) per Marks J at 6-7, and by the Court of Appeal in New South Wales in Balfour Beatty Power Constructions (Australia) Pty Ltd v Government Insurance Office of New South Wales (1996) 24 MVR 162 by Meagher JA at 164, with whom Beazley JA agreed, and by Mahoney P without attribution at 162.
Connolly J, in his reasons for judgment, identified the relevant principles identified by the High Court in Green & Lloyd as guiding the approach to be taken to the determination of the factual question. He correctly held that actions remote from the use of the motor vehicle were not within the concept of ‘use’ which fell within the risk covered. The findings of fact made by Connolly J appear in pars 18 – 20 of his Honour’s reasons, where he said:
18.While the question of whether an activity of loading arises out of the use of a motor vehicle is essentially a question of fact, and the High Court has reminded us to avoid ‘fine distinctions’, it seems to me that it can at least be said that for the loading activity to arise from the use of the motor vehicle the action of the worker which gives rise to the injury must at least be part of a single process of loading. In the present case, the problem, it seems to me, is that the injured worker was not himself in the process of placing the bag of plaster onto the truck. He was, rather, handing the bag to another worker who was to place the bag on the truck. Where one worker passes the load to another, it seems to me that the link between the action of lifting the bag and the use of the motor vehicle has not been made, as this worker has and intended to have no contact with the motor vehicle – that was the task of the next worker in the line.
19.It seems to me that, if in these circumstances the action can be said to have arisen in the course of the use of a motor vehicle, there would be no practical limit to the end point of liability. It is clearly established that not all acts upon or in relation to a motor vehicle, or indeed any action related to the operation of loading or unloading a transport vehicle gives rise to a liability under the policy. While the apparently different conclusions reached by the Victorian and New South Wales Courts of Appeal reinforces the observation by Mahoney P that “minds may differ” as to whether the criterion is established, both cases involved a single worker involved in a continuous process of individually loading the vehicle.
20.Where a worker takes part in a process of handing material to another worker, who goes on to load the vehicle, it seems to me that the action is too remote from the use of the vehicle, and the responsibility should properly lie with the employer. ...
The appellant submitted that Connolly J erred in not treating the entirety of the activity involved as part of the one loading process which involved Delaney performing an integral part of a continuous movement of a bag of plaster from the pallet to the truck. So characterised, it was submitted it was a continuous movement from the stack to the truck which was being loaded at the time; a movement of the type held in Balfour Beatty Power Constructions (Australia) Pty Ltd to be a ‘use’ falling within the risk covered under the compulsory third party insurance policy. The fact that three persons were engaged in that activity in the case under appeal and only one person in Balfour Beatty Power Constructions, it was submitted, was an irrelevant consideration.
The question which Connolly J was required to address, and which he correctly identified in par 3 of his reasons, was whether on the evidence before him the injury sustained by Delaney was caused by or arose out of the ‘use’ of the insured Hino truck. It was not a question of whether the injury sustained by Delaney was caused by or arose out of the process adopted to load bags of plaster stored on a pallet onto the truck.
The evidence established that Delaney was handed a twenty-kilogram bag of plaster to hand to ‘Brian’ who was to place it on the truck. Because Brian was taller than Delaney it required that Delaney rose up on his toes in order to pass the bag at an appropriate level for Brian to receive it. The injury occurred at the moment Delaney was attempting to pass the bag of plaster to Brian while standing on his toes. The injury to Delaney was attributable to the means he adopted to pass the heavy weight to Brian at an appropriate level in the absence of a safe system of work to enable him to make the transfer of the bag without risk of injury to his back. Connolly J concluded, correctly in our view, that the injury sustained in consequence of the means adopted by Delaney to pass to Brian the bag of plaster was too remote from the process of loading the bags onto the truck to constitute an injury sustained arising out of a use of the truck. His Honour formed the view that Delaney was injured in performing his work in assisting ‘Mick’ to transfer the bags from the pallet to a point where they were available to Brian to load onto the truck. Although the task being undertaken by Delaney was connected with the loading, the injury was not a direct, proximate or some less immediate, consequence of the operation of the loading and the use of the truck to load the bags of plaster was ‘a merely casual concomitant, not considered to be, in the relevant causal sense, a contributing factor’: per Windeyer J in Green & Lloyd at 447.
Nothing that was said by the Court of Appeal in Balfour Beatty Power Constructions required Connolly J to come to a different conclusion from that which he did. The facts before the Court of Appeal were totally different from those in evidence in the agreed statement. In Balfour Beatty Power Constructions a physical inability to bring the trailer to the ‘press’ required that the ‘press’ be carried over a distance of six to seven metres to be placed on the trailer if the ‘press’ were to be carried away at the conclusion of the work. It was this circumstance that characterised the lifting which caused the injury to be part of the process by which the ‘press’ was lifted onto the trailer (see Mahoney J at 163); a process that was one undivided action performed by one person at one place at one time (see Meagher JA at 164). The Court of Appeal found that the employee was injured when he was himself loading the ‘press’ onto the trailer. That was not this case.
The appeal will be dismissed with costs.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 19 March 2004
Counsel for the appellant: Mr J D Hislop QC with Mr F G Parker
Solicitor for the appellant: Dibbs Barker Gosling Lawyers
Counsel for the respondent: Mr L Morgan
Solicitor for the respondent: Sparke Helmore Solicitors
Date of hearing: 5 August 2003
Date of judgment: 19 March 2004
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