Henry v Motor Accidents Insurance Board
[2005] TASSC 62
•8 July 2005
[2005] TASSC 62
CITATION: Henry v Motor Accidents Insurance Board [2005] TASSC 62
PARTIES: HENRY, Norman Ronald
v
MOTOR ACCIDENTS INSURANCE BOARD
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA No 97/2004
DELIVERED ON: 8 July 2005
DELIVERED AT: Hobart
HEARING DATE: 8 June 2005
JUDGMENT OF: Crawford, Slicer and Blow JJ
CATCHWORDS:
Traffic Law – Statutory compensation in respect of motor vehicle accidents – Tasmania – Scheduled benefits – Accident occurring in a motor vehicle race – Practice with a view to participation in race – Pre-race reconnaissance drive.
Motor Accidents (Liabilities and Compensation) Act 1973 (Tas), s24(1)(d).
Police Offences Act 1935 (Tas), s47.
Aust Dig Traffic Law [171]
REPRESENTATION:
Counsel:
Appellant: I Bradfield
Respondent: K B Procter SC
Solicitors:
Appellant: Bradfields
Respondent: Jackson & Tremayne
Judgment Number: [2005] TASSC 62
Number of paragraphs: 35
Serial No 62/2005
File No FCA 97/2004
NORMAN RONALD HENRY v MOTOR ACCIDENTS INSURANCE BOARD
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
SLICER J
BLOW J
8 July 2005
ORDERS OF THE COURT:
That the appeal be allowed.
That the determination of the respondent be set aside and, in substitution for it, a determination made that the appellant is entitled to the payment of scheduled benefits in respect of the injuries suffered by him on 2 February 2002.
Serial No 62/2005
File No FCA 97/2004
NORMAN RONALD HENRY v MOTOR ACCIDENTS INSURANCE BOARD
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
8 July 2005
I agree with the reasons for judgment of Blow J and the orders he proposes.
File No FCA 97/2004
NORMAN RONALD HENRY v MOTOR ACCIDENTS INSURANCE BOARD
REASONS FOR JUDGMENT FULL COURT
SLICER J
8 July 2005
The circumstances giving rise to, and the issues raised by, this appeal have been stated by Blow J in his reasons for judgment, with whose conclusion in its disposition I concur.
Parliament has since addressed the complexion of, and tension created by, the use of a definition stated in one legislative enactment for the purpose of another, which has a different purpose.
That tension, which understandably gave rise to the decisions of the Motor Accidents Compensation Tribunal ("the Tribunal") and the learned judge appealed from, can be resolved by the acceptance that the terms "practice … with a view to the participation in [a] race", is ultimately a question of fact. The approach to interpretation and application of the legislative provision is confined by the adoption of a specific term, but the question of whether the facts, as established, were sufficient to enable the "fact finder" to properly conclude that they amounted to a practice ultimately requires a finding of fact.
The Motor Accidents (Liabilities and Compensation) Act 1973 ("the Act"), s24, relevantly provides:
"(1) Notwithstanding section 23, scheduled benefits are not payable in respect of the personal injury to a person in any of the following cases:
…(d)Where the personal injury results from a motor accident occurring in a motor vehicle race (not being a motor vehicle race that takes place on a beach) in which that person was taking part."
Thus, a motor vehicle race which took place on a beach ultimately requires a finding of fact as to whether it occurred on a beach or whether the area was in fact a beach. That question, in turn, might depend on whether the fact finder concluded, as a matter of fact, whether the topography, soil, position and the like, permitted a finding that it was a beach. Here the provision "motor vehicle race … in which that person was taking part" adopts as a definition that appearing in the Police Offences Act 1935, s37. But the question of whether the person was "taking part" in that race remains one of fact. An analogy can be made with cases decided under workers compensation legislation in dealing with terms such as "in the course of employment" (Clark v Transport Commission [1963] Tas SR (NC 7); Park v Peach [1967] VR 558), "journey to and from work" (Donohue v John Holland & Co Pty Ltd [1973] Tas SR 39; Mersey Public Hospitals Board v McLennan [1987] Tas R 27), or "interruption of journey" Muir Engineering Pty Ltd v Burkhardt [1981] Tas R 51), ultimately depended on an assessment and application of facts.
The Act, having adopted the meaning of "motor vehicle race" (s2), further provides:
"(3) For the purposes of this Act a person shall be regarded as taking part in the motor vehicle race while ¾
(a)he is engaged in conducting, or assisting in conducting, the race;
(b)he is in charge of, or in, a motor vehicle competing or taking part in the race; or
(c)he is assisting, or employed to assist, any person regarded as taking part in the race by virtue of paragraph (a) or paragraph (b), in connection with the race or any motor vehicle competing or taking part therein, and any motor vehicle driven by or in charge of any person taking part in a motor vehicle race shall be deemed to be taking part in that race."
The words "engaged", "assisting" or "charge of" themselves add little to the requirement of "taking part in", but permit evaluation of the factual circumstances. A person transporting fuel to a race event could be said to be "assisting" in the conduct of a race, but the factual circumstances would warrant only a nexus falling short of "taking part" in the event. The question of nexus between the conduct of the appellant and the import of the legislative enactment is one of degree (see Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, Mason and Wilson JJ at 321; Mills v Meeking (1990) 91 ALR 16, Dawson J at 30). The Act, s2, adopted the further definition of motor vehicle race as appearing in the Police Offences Act, s47, which relevantly provides:
"'motor-vehicle race' includes ¾
(a) any race or competition in which two or more motor-vehicles compete or take part, whether or not at one and the same time, and in the result of which the actual speed of such motor-vehicles is a determining factor;
(b) any test to which a motor-vehicle is subjected for the purpose of ascertaining, either alone or in conjunction with other matters, its actual speed capabilities; and
(c) the use of any motor-vehicle in any practice at the place where, or over any part of the course on which, any such race, competition, or test is to take place ¾
but does not include the use of a motor-vehicle, on a public street, for reconnaissance or familiarisation purposes at the place where, or over any part of the course on which, any such race, competition or test is to take place with a view to the participation in that race, competition or test of a motor-vehicle or person."
In this case the appellant:
(1)was using a motor vehicle which was not one which was to be used in the race;
(2)the vehicle was being driven some two months before the time of a race governed by the provisions of the Police Offences Act, ss47 – 49;
(3)was not engaged in competition with another vehicle, nor ascertaining the speed capabilities of the vehicle being driven;
(4)whilst, at the time of the accident, was driving on a proposed course, had driven on other non "course" roads to reach that location;
(5)was not driving "under race conditions";
(6)was not testing the proficiency of his driving of "that" vehicle;
(7)was not testing the capability of "that" vehicle on the proposed course.
The facts did not warrant a conclusion that he was doing anything which came within the ambit of the Act, s2(3)(a), (b) or (c). He was not, in the words stated in s3, "taking part in the motor vehicle race". The appellant was not entitled to the exemption from the speed requirements of the Traffic Act 1925, as permitted by the Police Offences Act, s49(2), nor was he required, at the date of the accident, to hold a permit for a motor vehicle race as provided for by s48. Insofar as he was assessing the course, he was engaged in practice, if that term be considered in isolation, but not "taking part" in the race.
The Police Offences Act, s49(8), provides:
"(8) Section 2 (3) of the Motor Accidents (Liabilities and Compensation) Act 1973 has effect in relation to this section as it has effect in relation to that Act."
That provision reinforces my conclusion that the appellant was not "taking part in" a race.
It was not open for the Tribunal to conclude that the appellant was a person to whom the Act, s24, applied.
I would uphold the appeal.
File No FCA 97/2004
NORMAN RONALD HENRY v MOTOR ACCIDENTS INSURANCE BOARD
REASONS FOR JUDGMENT FULL COURT
BLOW J
8 July 2005
This appeal concerns a claim that the appellant made for scheduled benefits in respect of injuries that he suffered in a motor vehicle accident on 2 February 2002 when driving over the course of a motor vehicle race in which he proposed to participate. The respondent ("the Board") rejected his claim on the basis that, for the purposes of the Motor Accidents (Liabilities and Compensation) Act 1973, the appellant's injuries resulted from a motor accident occurring in a motor vehicle race. The appellant referred the matter to the Motor Accidents Compensation Tribunal, but was unsuccessful. He appealed, but a judge of this Court concluded that the Board's decision was correct, and dismissed the appeal. He has now appealed to the Full Court.
The legislation
The Motor Accidents (Liabilities and Compensation) Act, s24(1)(d), provides for scheduled benefits not to be payable in relation to injuries to participants in motor vehicle races. It provides as follows:
"24 (1) Notwithstanding section 23, scheduled benefits are not payable in respect of the personal injury to a person in any of the following cases:
…
(d) Where the personal injury results from a motor accident occurring in a motor vehicle race (not being a motor vehicle race that takes place on a beach) in which that person was taking part".
In s2 of that Act, which relates to its interpretation, the following provisions appear:
"2 (1) In this Act unless the contrary intention appears –
…
'motor vehicle race' has the same meaning as it has for the purposes of Division III of Part VI of the Police Offences Act1935;
…
(3) For the purposes of this Act a person shall be regarded as taking part in the motor vehicle race while –
(a) he is engaged in conducting, or assisting in conducting, the race;
(b) he is in charge of, or in, a motor vehicle competing or taking part in the race; or
(c) he is assisting, or employed to assist, any person regarded as taking part in the race by virtue of paragraph (a) or paragraph (b), in connection with the race or any motor vehicle competing or taking part therein, and any motor vehicle driven by or in charge of any person taking part in a motor vehicle race shall be deemed to be taking part in that race."
At the relevant time, the Police Offences Act 1935, PtVI, DivIII, contained the following provisions:
"47 In this Division –
…
'motor-vehicle race' includes –
(a) any race or competition in which two or more motor-vehicles compete or take part, whether or not at one and the same time, and in the result of which the actual speed of such motor-vehicles is a determining factor;
(b) any test to which a motor-vehicle is subjected for the purpose of ascertaining, either alone or in conjunction with other matters, its actual speed capabilities; and
(c) the use of any motor-vehicle in any practice at the place where, or over any part of the course on which, any such race, competition, or test is to take place with a view to the participation in that race, competition, or test, of that motor-vehicle or the person so using it;
…
48 (1) A person shall not hold, or be concerned in the holding of, or compete or take part in, any motor-vehicle race or reliability trial unless a permit for the holding thereof has been previously granted by the Commissioner, and then only in accordance with the terms and conditions specified in such permit.
(2) A person who contravenes a provision of subsection (1) is guilty of an offence and is liable on summary conviction to a penalty not exceeding 5 penalty units.
49 (1) The Commissioner may grant to any person a permit for the holding of any motor-vehicle race or reliability trial, and every such permit –
(a) shall specify the day and hours on and between which respectively, and the place in or upon which, the race or trial may be held; and
(b) may impose such conditions as to the holding thereof as the Commissioner shall determine and specify in the permit.
(2) If such permit is granted in respect of any public street within the meaning of the Traffic Act 1925, the rate or speed of any motor-vehicle competing or taking part in any race or trial to be held under the permit may, notwithstanding any law to the contrary, exceed, to the extent mentioned in the permit, the limit prescribed by such law.
(3) Where the Commissioner grants a permit to a person under this section, that person shall pay to the Commissioner the prescribed fee.
(3A) Where no fee is prescribed for the time being for the purposes of subsection (3), the fee payable under that subsection is $10.
(4) No permit granted under this section authorizing the holding of a motor-vehicle race, elsewhere than on any land (whether above or below high-water mark) which forms, or forms part of, the beach or shore of the sea or any tidal waters, shall be of any effect unless there is in force in relation to that race a policy of insurance that complies with the requirements of this section.
(5) Subject to the provisions of subsection (6), in order to comply with the requirements of this section a policy of insurance must be a policy which is issued by an insurer approved by the Motor Accidents Insurance Board and insures any person taking part in the motor-vehicle race jointly and each of them severally against any liability (including liability for costs) that may be incurred by any such person, whether jointly with any other person or severally –
(a) in respect of the death of, or bodily injury to, any person caused by or arising out of the use of a motor-vehicle, competing or taking part in that motor-vehicle race; and
(b) where the race takes place on any public road or thoroughfare, in respect of any damage or injury to any property other than a motor-vehicle competing or taking part in the race arising from such use.
(6) A policy of insurance issued for the purposes of subsection (5) shall not be required to provide for –
(a) the payment by the insurer of any sum exceeding –
(i) $10 000 in respect of any claim in respect of the death of, or bodily injury to, any one person; or
(ii) $100 000 in respect of all claims arising out of the same accident in respect of the death of, or bodily injury to, more persons than one; or
(iii) $100 000 in respect of all claims arising out of the same accident in respect of damage or injury to property; or
(b) any contractual liability –
but shall provide for the payment of funeral expenses of any person dying as the result of any accident to which the policy relates.
(7) Notwithstanding any other law or rule of law to the contrary, an insurer who issues a policy of insurance under or for the purposes of this section is liable to indemnify any person taking part in the motor-vehicle race, and, on his death, his personal representatives, in respect of any liability incurred by that person which the policy purports to cover.
(8) Section 2 (3) of the Motor Accidents (Liabilities and Compensation) Act 1973 has effect in relation to this section as it has effect in relation to that Act."
The facts
The facts were summarised by the learned primary judge as follows:
"7 The evidence established that the appellant and Mr Harding had arranged to participate in Targa 2002. The appellant was to drive and Mr Harding was to be his co-driver/navigator. It was common ground between the parties before the Tribunal that Targa 2002 which was to take place in April 2002 is a motor vehicle race within the meaning of that term in the applicable legislation. On 2 February 2002, the appellant and Mr Harding travelled together in a Porsche 944 coupe driven by the appellant from Hobart to the north of the State in order, in the words of Mr Harding to 'do reconnaissance for Targa that year'. The appellant did not intend to drive the Porsche in Targa. He had an Alfa Romeo that was specially built for the race. Mr Harding had with him a booklet provided by the organisers of Targa, maps and road notes prepared by another navigator. Mr Harding was to check the accuracy of those notes and the stage maps. From Perth the appellant drove towards Devonport using back roads that passed through Longford and Deloraine. I infer that this was in order to travel along sections of roadway designated as Targa stages. About 5 to 10 kilometres from Devonport, they entered a stage that included Buster Road. Their intention had been to turn back after completing this stage. After travelling 1 to 1.5 kilometres into that stage (stages are indicated by road markings), they entered a right hand sweeping bend at a speed of about 80 to 90 kilometres per hour. As they did so, the vehicle slid off the road and collided with a tree. Mr Harding, who was looking at a reconnaissance book at the time, felt the car sliding and glanced up to see the tree just before the collision."
It was also common ground that the road had not been closed on the day in question; that the appellant was driving within the applicable speed limit, which had not been lifted, as it would have been if an authorised race was in progress; and that the vehicle was not being timed.
The contentions of the parties
The Board contends that the accident occurred in the course of activity falling within par(c) of the definition of "motor-vehicle race" in the Police Offences Act, s47, namely the use of a motor vehicle in practice over part of the course on which a race was to take place with a view to participation in that race, not of the motor vehicle, but of the person so using it. The Board, the Tribunal, and the learned primary judge have all taken the view that, on that basis, the activity in which the vehicle was engaged at the time of the accident amounted to "practice" within the meaning of par(c) of the definition.
The appellant contends otherwise, solely on the basis that, in the words of par(c) of the relevant definition, the motor vehicle was not being used "in any practice".
History and purpose of the relevant legislation
As long ago as 1927 the Tasmanian Parliament legislated to permit and regulate motor races on public roads: Motor-Vehicles Races Regulation Act 1927. In 1935 the 1927 Act was repealed, and its provisions were re-enacted in the Police Offences Act as ss47, 48 and 49. However the third paragraph of the definition of "motor-vehicle race" in s47, by which that definition extends to include a "practice", was not added until the commencement of the Police Offences (No 2) Act 1958.
A system of compulsory insurance against accidents resulting in death or bodily injury was introduced in Tasmania by the Traffic Act 1935, which amended the Traffic Act 1925. It appears that Parliament decided in 1958 to establish a separate system of insurance against accident in respect of motor vehicle races. The Traffic Act 1925 was amended by inserting s64(2)(bb), whereby a compulsory insurance policy was not required to provide for "any liability covered by an insurance policy taken out for the purposes of section forty-nine of the Police Offences Act 1935". When the present no-fault scheme was introduced in 1973 by the Motor Accidents (Liabilities and Compensation) Act, the separate system of insurance against racing accidents was preserved. It seems likely that the purpose of having two separate systems of insurance was to relieve the general motoring public of the burden of insurance cover for participants in motor races and similar activities, and to shift the whole of that burden onto the section of the public interested in motor racing.
The Police Offences (No 2) Act 1958 introduced the insurance provisions of the Police Offences Act, s49(4) to (8). It seems likely that it was mere co-incidence that the 1958 amendments also provided for the extension of the definition of "motor-vehicle race" to include a paragraph in relation to the use of a vehicle "in any practice". No doubt Parliament realised that participants in motor vehicle races on public roads might want to practise by driving along the courses of proposed races at speed, and considered that it would be appropriate both to permit and to regulate such activities. Thus, ever since 1958, an intending participant in a motor race planned to be held on public roads may only practise racing driving along the course of the planned race if the insurance cover required by s49(5) is in place, and if a permit has been granted pursuant to s49(1). Otherwise an offence contrary to s48(1) is committed, and the driver can be fined.
In my view the purposes and objects of the relevant division of the Police Offences Act are to permit motor racing and similarly dangerous activities on public roads at appropriate times and under appropriate conditions; to promote road safety by permitting the Commissioner for Police to regulate such activities; to ensure insurance cover for participants in such activities in respect of their death or bodily injury; and to relieve the general motoring public from the financial burden of such insurance cover.
The meaning of "practice"
The Tribunal was referred to three dictionary definitions of "practice". The Macquarie Dictionary definition includes "repeated performance or systematic exercise for the purpose of acquiring skill or proficiency" and "of or pertaining to an attempt which is undertaken merely to develop skill, refresh one's memory, etc". The Shorter Oxford Dictionary definition is "exercise in any art, handicraft, etc for the purpose of obtaining proficiency". The Collins English Dictionary and Thesaurus identifies synonyms such as "go over", "prepare", "rehearse", "train", "warm up", and "work out".
The interpretation adopted by the Tribunal appears from the following paragraph from its decision:
"I think if one were to be looking on from outside and observing the actions of the Applicant and Mr Harding on this day one would come to the conclusion that they were indeed preparing for the Targa event. In that sense in my view they were practising for it. They were carrying out actions and doing things, which were necessary for their ultimate participation in the event. They were rehearsing and preparing for it. In my view those actions fall within the ordinary meaning of the word 'practice'. The applicant is precluded from further Scheduled Benefits by the provisions of S24 (1) (d) of the Act."
The reasoning of the learned primary judge appears from the following passages in his reasons:
"That a driver was concentrating on one aspect of the skills necessary for a race may be sufficient. For example, that a driver was focussing on braking alone would not mean that the driver was not practising for a race, just as it could not be said that a golfer who was practising tee shots on one hole of a golf course was not practising to play golf. What is determinative of whether an activity amounts to practising is the ordinary meaning of the term practice. My distillation from the meanings for practice canvassed before the Tribunal is that for present purposes it is to pursue an aspect of an activity for the purposes of developing proficiency in that activity. Can it be said that the appellant was using his motor vehicle on a stage of the Targa course in order to gain proficiency in traversing that part of the course? The Tribunal found that the appellant was driving his vehicle in preparation for ultimately competing in Targa and that the purpose of his driving was to take notice of the course over which the race was to be driven. This finding reflects evidence to the effect that the purpose of the trip was to familiarise Mr Harding with the stage and to refresh the appellant's memory of it. Expert evidence was given to the Tribunal that an important factor in Targa driving is knowledge of the road and how to drive it and that the preparation by both the driver and the co-driver in this context is important to success.
…
Danger is not a specific element of the extended meaning given to a motor vehicle race by encompassing within it practice for a motor vehicle race. For present purposes, the required elements are:
· a person's use of a motor vehicle;
· in practice for a motor vehicle race;
· over any part of the course for the race;
· with a view to that person participating in the race.
The presence or absence of danger is in no way decisive in the determination of what amounts to a motor vehicle race or practice for a race as danger is not a specific element of the meanings given to these phrases. Once it is determined that a person is participating in either of these courses of conduct in the requisite way, liability is excluded and it is no answer to say that at the time injury was suffered the participant in the particular course of conduct was in fact doing something that ordinarily would be considered to be quite safe and not dangerous."
Mr Procter SC submitted on behalf of the Board that the word "practice" in par(c) of the definition of "motor-vehicle race" in the Police Offences Act, s47, could have one meaning for the purposes of that Act and a different meaning for the purposes of the Motor Accidents (Liabilities and Compensation) Act. He relied on comments made by Latham CJ in Producers' Co-Operative Distributing Society Ltd v Commissioner of Taxation (NSW) (1944) 69 CLR 523 at 531 as authority for the proposition that, when a definition in one statute is imported into another, it is not proper to consider any provisions of the original statute other than the definition. I think that case is distinguishable. It related to the meaning of the expression "agricultural products (as defined in that Act)", but the provision importing the definition of "motor vehicle race" into the Motor Accidents (Liabilities and Compensation) Act, namely s2(1), is very differently worded. As I have said, it provides, "'motor vehicle race' has the same meaning as it has for the purposes of Division III of Part VI of the Police Offences Act 1935". Because of the wording of that provision, I think that the term "motor vehicle race" should be interpreted by reference to the other provisions of the relevant Division, namely ss48 and 49, for the purposes of both the Motor Accidents (Liabilities and Compensation) Act and the Police Offences Act.
The Acts Interpretation Act 1931, s8A(1), requires an interpretation of a provision of an Act that promotes the purpose or object of the Act to be preferred to an interpretation that does not promote that purpose or object. Mr Procter SC submitted that the interpretation of the word "practice" advanced by the Board, whereby all pre-race reconnaissance driving would constitute practice with a view to participation in a race, is an interpretation that would promote the purpose or object of the relevant provisions of the Police Offences Act. He submitted that those provisions were designed to keep within bounds activity that is likely to be dangerous; that practice, within its ordinary meaning, is likely to be more dangerous than normal road driving; and that the aim of the legislation is to see that practice driving is controlled.
In my view the ordinary meaning of the word "practice", when used in relation to a motor race on public roads, does not extend to include pre-race reconnaissance driving if the driver does not in any respect rehearse racing driving, or does not in any respect, or to any extent, drive as if he or she is driving in a race. If a driver practises driving at racing speeds, or at speeds approaching racing speeds, practises cornering, or practises braking, to cite some obvious examples, I have no doubt that his or her activities would amount to "practice" within the scope of the relevant definition. If a driver does no more than to drive over the course no faster than an ordinary law-abiding member of the public would, and in a manner that an ordinary law-abiding member of the public would, for the purposes of reconnaissance, I do not think that activity would fall within the ordinary meaning of the word "practice". Since such driving involves no greater risk or danger than ordinary driving, an interpretation of the relevant definition whereby such driving would be treated as "practice" would not promote any purpose or object of the relevant sections of the Police Offences Act.
It is worth considering what the appellant would have been required to do if the interpretation of the word "practice" advanced by the Board were correct. Before going for a drive over the intended course of the race and having a look at it, no matter how sedately he intended to drive, and no matter what he intended to drive, the appellant would have needed to check with the organisers of the race as to whether the permit for the race under s49(1) had been issued, whether it extended to cover the expedition he was proposing, whether insurance cover for the race was in place under s49(4), and whether it extended to cover the proposed expedition. If, as seems likely, he found that the permit and policy did not cover the proposed expedition, or perhaps that they had not yet been issued, it would have been necessary for him to pay the statutory fee of $10, seek and obtain a permit from the Commissioner of Police, and arrange special insurance cover under s49(4). Otherwise he could be prosecuted, convicted and fined. If the proposed expedition involved no greater danger or risk than ordinary driving, that result would be absurd. Parliament surely could not have intended such a result.
I think it is also significant that there is a penal aspect to the provisions in question. If a motorist participates in an activity falling within the definition of "motor vehicle race" without the requisite permit, or outside the scope of the permit, or without the requisite insurance cover, he or she can be prosecuted, convicted and fined. It is also significant that s48 operates so as to restrict the common law right of a motorist to travel along public highways. Those are both factors that weigh in favour of giving the word "practice" a narrow interpretation, rather than a wide one.
Having regard to the history and purpose of the legislation, the context of the relevant definition, the ordinary meaning of the word "practice", and the absurd consequences of the interpretation suggested on behalf of the Board, I think the word "practice" should be interpreted so as not to include pre-race reconnaissance driving during which no aspect of racing driving is rehearsed or undertaken.
Conclusion
For these reasons I would allow the appeal, set aside the determination of the Board, and substitute a determination that the appellant is entitled to the payment of scheduled benefits in respect of the injuries suffered by him on 2 February 2002.
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