Gurski v NMHG Distributions Pty Ltd
[2014] VCC 112
•20 February 2014
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-12-06157
| KELVIN STEVEN GURSKI | Plaintiff |
| v | |
| NMHG DISTRIBUTION PTY LTD (ACN 053 370 291) | First Defendant |
| WAVERLEY FORKLIFTS PTY LTD | Second Defendant |
| and | |
| TRANSPORT ACCIDENT COMMISSION | Third Party |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 13 and 17 February 2014 | |
DATE OF JUDGMENT: | 20 February 2014 | |
CASE MAY BE CITED AS: | Gurski v NMHG Distributions Pty Ltd & Ors | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 112 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – transport accident – recovery proceeding – whether incident arose out of the use of prime mover
Legislation Cited: Transport Accident Act 1986; Motor Car Act 1958; Transport Accident Bill (No 2) Explanatory Memorandum; Interstate Road Transport Act 1985 (Cwlth)
Cases Cited:Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; Commonwealth v Baume (1905) 2 CLR 405; R v Berchet (1794) 1 Show 106; (1794) 89 ER 480; Fawcett v BHP BiProducts Pty Ltd (1960) 104 CLR 80; Government Insurance Office (NSW) v RJ Green & Lloyd Pty Ltd (1966) 114 CLR 447; Transport Accident Commission v Road Construction Authority [1990] VR 989
Judgment: Judgment for the Second Defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Second Defendant | Mr J Ruskin QC with Ms G Cooper | Wotton & Kearney |
| For the Third Party | Mr D Masel SC with Mr P Bourke | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 On 8 January 2009, the plaintiff was injured in the course of his employment with the second defendant when he was struck by a forklift truck which was being unloaded from a trailer attached to a prime mover. The forklift had been transported to the second defendant’s premises, via the trailer driven by a prime mover, for the purpose of undergoing repairs. Whilst the prime mover was registered, the trailer was not.
2 In this proceeding, the parties seek my determination as to whether the second defendant is entitled to be indemnified by the Transport Accident Commission in respect of the claim made by the plaintiff for damages.
3 The issue to be determined by me is whether the plaintiff’s injuries were occasioned by an incident appropriately described as being “caused by or arising out of the use of a motor vehicle” (namely the prime mover), within the meaning of s 94 of the Transport Accident Act 1986 (the Act).
4 The facts relevant to my determination of this issue have been agreed by the parties. Little point is served by repeating those facts in the course of these reasons; however, I will append those facts to my ruling.
5 In this instance, the parties have helpfully provided me with comprehensive outlines of their submissions.
6 Essentially, it is the position of the third party that, whilst s94 of the Act, in defining the liability of the Commission to indemnify the owner or driver of a registered motor vehicle, employs words virtually identical to those employed by the Motor Car Act 1958,[1] the structure of the Act is such that the long line of authority which settled the approach to be employed in determining whether an injury was “caused by or arose out of the use of a motor vehicle,” was made redundant.
[1] The Motor Car Act entitled motor car users to be indemnified with respect to “liability which was caused by or arising out of the use of a motor car”. The Transport Accident Act employs identical language to that used in the Motor Car Act, with the exception that the Transport Accident Act describes the indemnity as applying to a “motor vehicle” where as the Motor Car Act described the indemnity as applying to a “motor car”. It is not put on behalf of the parties that this change in language is of any significance.
7 In making its argument, the third party asserts in its outline of argument that the Act:
“(a)sets up a dichotomy between 2 types of vehicle: a ‘motor vehicle’ that is built to be propelled by a motor that forms part of the vehicle, and a ‘trailer’ which is a vehicle that is built to be towed, or is towed, by a motor vehicle; and
(b)unlike its predecessor, the Motor Car Act 1958, makes separate and express provision for the indemnification or insurance:
(i) of ‘the owner or driver of a registered motor vehicle in respect of any liability in respect of an injury or death of a person caused by or arising out of the use of the motor vehicle in Victoria or in another State or in a Territory’; and
(ii)‘in respect of the death of or injury to any person caused by or arising out of the use of a trailer in Victoria or in any other State or in a Territory’.”
8 It is submitted on behalf of the third party that the indemnity offered by s94 of the Act, when construed in the context of the operation Part 5 of the Act,[2] must be narrower than that offered by s40 of the Motor Car Act; and that this change evidences an intention on the part of the Parliament to apply a heightened emphasis on the issue of causation when considering the meaning of the phrase “arising out of the use of a vehicle,” in contrast to the approach adopted by the courts when analysing the meaning of the largely identical phrase which was employed in the Motor Car Act.
[2]Part 5 of the Act creates a an entitlement in certain circumstances to insure the trailer, a right which did not exist under the Motor Car Act
9 In approaching the issue of statutory interpretation involved in this instance, there is no issue that the approach required of me is that described by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority,[3] namely:
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was ‘known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.”
[3](1998) 194 CLR 355 at paragraphs [69]–[71]
10 It is to be noted that in contrast to its predecessor:
(i) The Act defines the word “trailer”; and
(ii) Part 5 of the Act authorises the Commission to enter into a contract of insurance in the prescribed form with the owner of a trailer.
11 The Act however restricts the indemnity offered by such a contract to trailers which are registered in Victoria under the Interstate Road Transport Act 1985 (Cwlth) but imposes no obligation that such trailers be insured under the provisions of the Act.[4]
[4]See paragraph 3(c) of the Contract of Insurance prescribed by s86(1) of the Transport Accident Act
12 It is not in issue that the Interstate Road Transport Act 1985 (Cwlth) operates to require any motor vehicle or trailer to be registered if the motor vehicle or trailer will be used for the purposes of trade or commerce or amongst the states and will not be used in a state except for that purpose.[5]
[5]See the provisions of s8 of the Interstate Road Transport Act 1985 (Cwlth)
13 In the Transport Accident Bill (No 2) Explanatory Memorandum, the following statement appears as to the introduction of part 5 of the Act:
“PART 5-TRAILERS (Clauses 84-92)
This Part makes provision for the Transport Accident Commission to enter into contracts of insurance, in the prescribed form, with the owners of trailers which are registered in Victoria under the Commonwealth Interstate Road Transport Act 1985. [my emphasis]
The Commonwealth Act requires the separate registration and compulsory third party insurance of prime movers and trailers. Provisions in the Road Safety Bill 1986 will facilitate the separate registration of trailers. However, it is not intended to extend the concept of a transport accident within this Bill to include an incident caused by or arising out of the use of a trailer.
It is therefore necessary to make special provision for the insurance of owners and persons in charge of trailers registered in Victoria under the Commonwealth Act.”
14 Nothing in the Explanatory Memorandum suggests an intention by the Parliament to alter the settled jurisprudence as to the meaning of the phrase “arising out of the use of a vehicle”. Indeed the use by the Parliament of the identical words which it had employed in the Motor Car Act, if anything, suggests the contrary.
15 It is put on behalf of the third party that such an intention is to be inferred by reason of the fact that the indemnity provided by s84 with respect to a registered trailer covers the identical risk which is insured by a policy issued under s94 of the Act which applies to a prime mover towing a trailer.
16 In my opinion this position by the third party is misconceived.
17 It is clear that the provisions of s86 of the Act, in limiting the trailers to which the Transport Accident Commission is prepared to offer insurance, to those subject to the provisions of Interstate Road Transport Act, recognises that the owner of any trailer which is to be used for the movement of goods within the State of Victoria is not entitled to enter an agreement with the Transport Accident Commission that such insurance will be provided by it.
18 In my opinion the limitation imposed by the Parliament upon the ability of the owner of a trailer to enter into a contract of insurance with the Transport Accident Commission with respect to the trailer to be used to transport goods within Victoria is more likely to be explained by a decision by the Parliament to allow the Transport Accident Commission to enter the marketplace which was created by the obligation imposed by the Interstate Road Transport Act 1958 (Cwlth) to register trailers which were engaged purely for the purposes of trade and commerce or intercourse amongst the states; rather than a decision to alter the settled approach adopted by the courts in interpreting the phrase “arising out of the use of a vehicle”.
19 Further, it is clear that circumstances may arise in which an injury may be categorised as arising out of a trailer and not the prime mover which is moving or has moved a trailer; and accordingly, even if there may be some overlap between the indemnity offered by s94 and s84, the indemnities are not identical.[6] The repeated statements by the courts that to the effect that whilst:
[6]An obvious example of the above involves any activity being undertaken upon a trailer which had no connection in any physical or other sense with a prime mover.
“… 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. … 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;”[7]
make this point clear.
[7]See Government Insurance Office (NSW) v RJ Green & Lloyd Pty Ltd (1966) 114 CLR 437 per Windeyer J at 447. It is unarguable in my opinion that the permissive entitlement to insure under s84 of the Act would provide the owner of a trailer with a right to an indemnity which is broader that that offered by s94 notwithstanding that there may be some overlap between the two indemnities.
20 Given that circumstances may arise in which an injury may be categorised as arising out of a trailer and not the prime mover, this largely undermines the foundation for the position taken by the third party in this instance, the cornerstone for which involved the position put by Senior Counsel on behalf of the third party namely:
“… what would be the utility of having insurance under s86 at all if everything concerning a trailer could be brought home, in one way or another, as arising out of the use of a prime mover.”[8]
[8]T27
21 In my opinion the position contended for by the third party is further undermined by the fact that s84 imposes no obligation upon the limited group of owners of trailers which are eligible to be insured under s84, to insure such trailers.
22 If the intention of the Parliament was that no trailer accident could be the subject of an indemnity under s94, the authorisation by the Parliament of a process in which unregistered trailers could operated at large within Victoria would run contrary to the purpose of the Act, which is to ensure that victims of transport accidents have access to compensation for a reliable and appropriately funded source.
23 Further, if the intention of the Parliament was as asserted by the third party, the preclusion by Part 5 of the Act of owners of trailers which are used to transport items within Victoria to employ the provisions of the Act to have their trailers insured by the Transport Accident Commission makes little sense as:
· It denies the Commission, with no apparent reason, access to the significant revenue stream created by the obligation to insure trailers to gain indemnity for any accident associated with their use; and
· It would have the effect, of requiring the owners of such trailers to seek cover within the private marked place, with the result that the prospect of disputes arising between the Commission and such insurers would be escalated
24 Given:
(i) The employment by the Parliament, when describing the indemnity provided by s94 of the Act of wording in all relevant respects identical to that employed in describing the entitlement to indemnity under s40 of the Motor Car Act ;
(ii) The absence of any express statement by the Parliament when introducing the Act that of the long line of jurisprudence which had settled the approach to be taken as to the meaning of the words “caused by or arising out of the use of a vehicle” as employed by the Motor Car Act was to be abandoned;
(iii) My obligation to determine whether in this instance the plaintiff’s injury arose out of the use of a registered prime mover as distinct from a trailer;
(vi) The matters to which I have previously referred;
in discharging my duty to ensure that all of the provisions of the Act are allocated the meaning which best gives effect to the purpose and language of the whole of the Act, I am not satisfied that there is any tension between the provisions of s94 and s84 which requires me employ an approach to the meaning of the indemnity offered by s94 which is in any way different to the well settled jurisprudential approach which was applied to the indemnity offered under the Motor Car Act.
25 For the reasons set out above, I am satisfied that the method which I should take in determining the issue before me is to apply the approach established by the long line of jurisprudence in Victoria and to interpret the meaning of s94 of the Act on the basis that –
“the Act is not … concerned with fine distinctions but requires the issue of a policy that covers liability arising out of everything that falls fairly within the conception of the use of a motor vehicle”;[9]
[9]Fawcett v BHP BiProducts Pty Ltd (1960) 104 CLR 80 per Menzies J
bearing in mind that:
“the word ‘injury caused by or arising out of the use of the vehicle ‘postulates a causal relationship between the use of the vehicle and the injury’. ‘Caused by’ connotes a ‘direct’ or ‘proximate’ relationship of cause of effect. ‘Arising out of’ extends this to a resolve 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 any relevant causal sense, a contributing factor”[10]
[10]Government Insurance Office (NSW) v RJ Green & Lloyd Pty Ltd (1966) 114 CLR 437 per Windeyer J at 447
and taking into account the statement by the Windeyer J in Government Insurance Office (NSW) v RJ Green & Lloyd Pty Ltd,[11] namely:
“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. … 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.”[12]
[11](supra)
[12]per Windeyer J at 447. It is unarguable in my opinion that the permissive entitlement to insure under s84 of the Act would provide the owner of a trailer with a right to an indemnity which is broader that that offered by s94 notwithstanding that there may be some overlap between the two indemnities.
26 In this instance, it is not in issue that the entitlement to indemnity is not influenced by the fact that:
(i) the prime mover is immobile;
(ii) the scope of use depends upon the characteristic of the vehicle;
(iii) that the incident arose either before or after locomotion.[13]
[13]See the concessions made on behalf of the third party at T45
27 I am satisfied that the agreed facts justify the following findings which I make, namely that:
· The second defendant was the owner of a registered prime mover and a Bowman load trailer, which it had employed to transfer an 8-tonne forklift truck to the second defendant’s premises in Reservoir where the forklift was to be repaired.
· That the transportation of the forklift truck via the prime mover commenced with the loading of the forklift truck onto the trailer.
· That the offloading of the forklift from the trailer was incidental to the use of the prime mover to transport the forklift by the trailer in order to deliver it to the premises of the second defendant for maintenance work to be carried out upon it.
· That that the use of the prime mover to deliver the forklift truck for repair was not completed until the forklift truck was offloaded from the trailer.
· That the injury to the plaintiff occurred when in the course of the forklift being driven along the trailer to facilitate its offloading, the forklift struck the plaintiff.
· That the injury was occasioned to the plaintiff when he was trapped between the forklift (namely the load carried by the trailer) and the trailer itself when the forklift was being driven with the sole purpose of offloading it so as to complete its delivery.
· That the injury was a direct consequence of the unloading of the forklift from the trailer.
28 On the basis of the above findings I am satisfied that is appropriate to describe the plaintiff’s injury as having occurred directly in the course of the unloading of the trailer, in that the plaintiff’s injury was occasioned in the course of the completion of the transportation and delivery of the forklift truck to the second defendant via the registered prime mover.[14]
[14]These circumstances may be distinguished for example from an activity which involved a prime mover employed merely to connect up to an already loaded trailer to merely deliver the trailer and its load to another site.
29 Whilst it is put on behalf of the third party that the fact that the forklift was being driven off the trailer by reason of its own locomotion gives rise to circumstances which are less remote than those considered by the Court in Transport Accident Commission v Road Construction Authority[15] and Government Insurance Office (NSW) v R J Green & Lloyd Pty Ltd,[16] I am not satisfied that there is any merit in this position given that the forklift was being operated for the sole purpose of offloading it to complete its delivery.
[15][1990] VR 989
[16]Supra
30 In the circumstances I am satisfied that:
· The use of the registered prime mover could not be described as being merely a “casual concomitant” to the occasioning of the injury, but that in a relevant causal sense it was a substantial contributing factor to that injury, in that the transportation and delivery of the forklift could not be regarded as having been completed until the forklift had been offloaded from the trailer; and
· The plaintiff’s injury is appropriately described as “arising out of the use of” the prime mover as those words are employed in s94 of the Act.
31 I will hear the parties as to the orders which should be made in this matter and also as to costs.
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