FAI General Insurance Company Limited v Glover

[1990] HCATrans 73

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No BS of 1990

B e t w e e n -

FAI GENERAL INSURANCE COMPANY

LIMITED

Applicant

and

WILLIAM THOMAS GLOVER, HENRY POLITANSKI

COLLEEN POLITANSKI and THE WORKERS'

COMPENSATION BOARD OF QUEENSLAND

Respondents

Application for special
leave to appeal

MASON CJ DAWSON J TOOHEY J

FAI

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 6 APRIL 1990, AT 10.32 AM

Copyright in the High Court of Australia

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MR. S.C. WILLIAMS, QC:  May it please the Court, I appear

with my learned friend,DR C.G. JENSON, for the

applicant. (instructed by Mcinnes, Wilson and Jenson)

MR J.A. GRIFFIN, QC:  May it please the Court, I appear with

my learned friend, MR J.R. BAULCH, for the Workers'

Compensation Board, one respondent to the

application.(instructed by Lyndsay and Lyndsay)

MR K. CULLINANE, QC:  May it please the Court, I appear with

my learned friend, MR R.A. LO MONACO, for the

respondent plaintiff. (instructed by Dempseys)

MASON CJ: Yes.

MR WILLIAMS:  Your Honours the Queensland MOTOR VEHICLES

INSURANCE ACT in relevant respects was considered

by this Court in TECHNICAL PRODUCTS V STATE

GOVERNMENT INSURANCE OFFICE, 167 CLR 45.

Subsequent to that decision, there have been two

decisions of the Full Court of this State, each overturning the findings at first instance, and each attempting to add flesh to the bones of the

test laid down by Your Honours in the TECHNICAL

PRODUCTS case. It is our contention that both

cases were wrongly decided by the Full Court, and

that it is now evident that the supreme court
requires further direction from this Court as to

the application of the decision in the TECHNICAL

PRODUCTS case. In this case, and in NOVAK V MEGGITT

LIMITED, a copy of which has been supplied to

Your Honours, the Full Court has focussed attention

on the role of the motor vehicle in the occurrence

of the plaintiff's injury.

At page 22 of the record in this case the

Chief Justice has identified the proximity of the

vehicle to the plaintiff - - -

MASON CJ:  The Court will take a short adjournment until

the technical difficulties have been overcome.

AT 10.34 AM SHORT ADJOURNMENT
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UPON RESUMING AT 10.39 AM:
MASON CJ:	Yes, Mr Williams.

MR WILLIAMS:  Thank you, Your Honour. Your Honour, as I was

saying, in this case and in NOVAK V MEGGITT LIMITED,

of which Your Honours have a copy, the Full Court

has focused attention on the role of the motor

vehicle in the occurrence of the injury. At

page 22 of the record in this case the Chief Justice
has identified the proximity of the vehicle to
the plaintiff at the moment of the occurrence
of the injury as a decisive factor.

Mr Justice Ryan at page 30 is content to define a discernible and rational link beteen

the basis of legal liability and the particular

vehicle which is the test Your Honours laid down

in TECHNICAL PRODUCTS if the purpose of the

task, which in this case was lifting and loading,

which the plaintiff was negligently required

to perform involved a vehicle.

In NOVAK's case, at pages 6 and 7,

Mr Justice Mackenzie, with whom the other members

of the court agreed, was satisfied of the

relationship after consideration of the purpose

for which the plaintiff was performing a lifting

task and his proximity to the vehicle at the
time his injury occurred.

It is our submission that such considerations are not relevant for the test Your Honours laid

down in the TECHNICAL PRODUCTS case. In that

case this Court, at pages 47 and 48, of the

Commonwealth Law Report reference, and at page 393

of the Australian Law Journal Report reference,

approved a passage from an earlier case in which

the following words appear:

What is required is that there be a relationship

between the motor vehicle and the very act

or omission which gives rise to that liability.

In our submission, there is no suggestion in the TECHNICAL PRODUCTS case that the nexus is

established if the very act or omission is initially

unconnected with the motor vehicle but that the

actual injury occurs proximate to the vehicle or if

the overall purpose of a negligent requirement

upon a worker is to load a vehicle.

At page 52 of the Commonwealth Law Report

reference in the TECHNICAL PRODUCTS case Your Honour

Justice Dawson noted the employer's liability

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in that case flowed from a failure to provide

a safe system of work which was, in essence,

the finding of His Honour Mr Justice Kneipp at

first instance in the present case.

Because of the extremely tenuous connection

between the trailer and the employer's liability
in the TECHNICAL PRODUCTS case it was not necessary

for this Court to say more than that the nexus

would not exist unless there was some discernible

and rational link between the basis of legal

liability and the particular motor vehicle.

It was unnecessary, in that case, to state

with any fur~her precision the true nature and

extent of the nexus required. It is submitted

that the true test is whether the very act or
omission of the employer which is deemed negligent
is necessarily in respect of the vehicle.
Considerations of the plaintiff's proximity to
the vehicle at the moment of injury and purpose
of the task should not be relevant to that test
for in this case and in NOVAK and in most cases
of this type the negligent act or omission is
complete and evident in the system of work unconnected

with the vehicle.

MASON CJ:  But is not the system of work directly connected

with the vehicle in this case? He was loading

bags on to the tray of the truck.

MR WILLIAMS: Quite, Your Honour, that is so. And in NOVAK's

case he was loading a steel plate on to the vehicle.

Our contention is simply this, that the negligent

act or omission was the employer's requisition

of the worker to lift or handle a load which

was too heavy for him. The presence of the vehicle

is merely incidental to the negligent act or

omission.

MASON CJ:

But it was not merely a matter of the load being

too heavy, was it, he had to reach out as he

placed the bag on the tray of the truck? It
was not merely lifting it up on to the edge of

the tray of the truck, he had to reach over beyond

that.

MR WILLIAMS:  Your Honour, in determining when the injury

occurred that evidence became relevant. In determining

the moment of injury that evidence became relevant
for the plaintiff said that he felt pain at that

time.

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MR WILLIAMS (continuing):  Mr Justice Kneipp's decision was

that it was negligent for an employer to require

him to manually handle alone bags of cement and

that if the injury occurred somewhere in the

course of that work directed of the employer that

is a negligent system of work case. If it

coincidentally occurs as the bag is being loaded

into a vehicle that does not involve the vehicle.

There is no necessary rational link between the

negligence and the vehicle in those circumstances.

It is our submission that if there be a

negligent requirement for a man to lift something

too heavy, and that involves a foreseeable risk

of injury, the facts that the purpose of the lift

is to load a vehicle or that the injury fortuitously

occurs when he is proximate to the vehicle or,

indeed, in the act of placing the load in the
vehicle, are irrelevant for the negligent act or

omission is the requirement to lift. It is our submission, Your Honours, that there are strong

reasons of convenience in adopting that test for it

obviates the need for factual inquiry as to the

precise moment when the injury occurs and a detailed

factual investigation which may include a medical

investigation of his location at that time and the

cause of his injury.

Your Honours, there are other cases dependent

upon the outcome of this application and appeal.

NOVAR is one and Bray, in his affidavit, deposes

to the existence of others.

MASON CJ:  Mr Williams, let us assume for the moment that

your criticisms of the judgment of the Full Court

are well founded. Can it be said that this case

raises any more than a question of the application

of the principle which was established in the

TECHNICAL PRODUCTS case and as such·; because it

does not raise a question of general principle in

itself, is not suited to the grant of special leave?

MR WILLIAMS:  Your Honour, we do concede that it does raise

a question of the application of the TECHNICAL

PRODUCTS test. It does not raise a point of

general application throughout the Commonwealth.

Our submission, in response to Your Honour's question

if we may, is that if special leave was appropriate

in the TECHNICAL PRODUCTS case, as it was, and as

Your Honours were good enough to define the

appropriate test, Your Honours would intervene to

prevent a misapplication of that test. We can say

little more of the need for special leave in this

case and the appropriateness of the case for

special leave other than to say that the decisions

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to which we have referred Your Honours are wrong

and, in our submission, ought to be corrected.

Those are our submissions, Your Honours.

MASON CJ: Thank you, Mr Williams. The Court need not trouble

you: , Mr Cullinane, nor you, Mr Griffin. The

relevant principle in cases of this kind was

established by the recent decision of this Court

in TECHNICAL PRODUCTS PTY LTD V STATE GOVERNMENT

INSURANCE OFFICE. The question in this case is

one of applying that principle. Th~ case, therefore,

does not itself raise a question of general

principle. The application for special leave is

therefore refused.

MR CULLINANE:  May it please the Court, may I ask for an

order for costs?

MASON CJ:  I take it, Mr Williams, you do not resist an

order for costs in favour of the respondents?

MR WILLIAMS:  In favour of either of the respondents, no,

Your Honour.

MASON CJ: Very well, the application is refused with costs.

AT 10.48 AM THE MATTER WAS ADJOURNED SINE DIE

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