Insurance Commission WA v Container Handlers Pty Ltd & Ors
[2003] HCATrans 415
[2003] HCATrans 415
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P37 of 2003
B e t w e e n -
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Appellant
and
CONTAINER HANDLERS PTY LTD
First Respondent
UNION DES ASSURANCES DE PARIS
Second Respondent
ASHLEY ROBERT SUTTON
Third Respondent
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON TUESDAY, 21 OCTOBER 2003, AT 10.15 AM
(Continued from 20/10/03)
Copyright in the High Court of Australia
__________________
McHUGH J: Yes, Mr Walker.
MR WALKER: Your Honours, a small number of points to complete our submissions. As your Honours have seen from the prehistory of this legislation, it not only overtly addressed what was perceived as a problem of what was perceived to be a hitherto misunderstood scope of indemnity revealed in Dickinson, but it was also legislation designed to deal with the breadth of the scope of indemnity imported by using the word “use” in the verbal formula “caused by or arising out of the use of a motor vehicle”.
In that formula, as your Honours will recall, there was not an argument which had succeeded in this Court to the effect that “caused by” did not include use of the motor vehicle. There had been no possibility found by this Court, even if it had been available, that the scope of indemnity could be created by picking as one of the possibilities that the injury was caused by the motor vehicle. It was only caused by the use of a motor vehicle or arising out of the use of a motor vehicle.
For some reason, which does not satisfactorily appear in any of the travaux preparatoire that we have shown to your Honours in our written submissions, it was decided by use of the commas that your Honours have seen in this statute to make it clear that there was the possibility of “directly caused by the motor vehicle”, first limb as I have called it, as well as the more specific, “directly caused by the driving of the motor vehicle”. To the inquiry that might arise ‑ ‑ ‑
KIRBY J: But the problem is the word “or” appears. It says: “bodily injury to any person directly caused by, or by the driving of,”. It is just a little awkward to put the word “directly” into the parenthesis.
MR WALKER: No, it is not awkward for this reason, that “directly” governs everything that follows.
KIRBY J: Yes, that still does not overcome the section 3(7) question.
MR WALKER: No, quite so.
KIRBY J: But do you understand that to be common ground with the respondent, that the direct – I think they accept that “directly” governs both the “caused by, or by the driving of”.
MR WALKER: Yes.
KIRBY J: And their point is picked up by reason of section 3(7).
MR WALKER: Yes, that is correct, your Honour.
KIRBY J: And you say that that nonetheless fits ‑ ‑ ‑
MR WALKER: Is an impossibility.
KIRBY J: You then fit that into section 4(1).
MR WALKER: Yes.
GUMMOW J: How do you explain how you plead this?
MR WALKER: The pleading point I talked about yesterday, your Honour?
GUMMOW J: Yes, that Justice McHugh raised with you. It is quite important, because it helps one understand how the statute works.
MR WALKER: Yes. You would plead suing on the statutory policy by saying that your liability - first, that you have been found or you are liable; second, that it is for relevantly an injury; third, that that injury was directly caused by a motor vehicle or, alternatively, caused by the driving of a motor vehicle. Then, narrowing the scope of the answer to the pleading question and selecting only the first of those limbs, because that is the only one that appears to be in play in this case, one would then, either at the evidentiary stage because of the command in section 3(7) or, more prudently, at the pleading and particulars stage for the first limb, set out a case – we will call it a pleading – whereby you would plead that the injury was caused by the driving of the vehicle. You do not drop “directly” out of it, but the particulars of the causation by the motor vehicle would be that it was caused by the driving of the motor vehicle or, alternatively, the running out of control of the motor vehicle.
GUMMOW J: That puts the phrase “caused by” and “consequence of” on the same level, does it not?
MR WALKER: Yes, and there is a reason for that as follows: since before Polemis and certainly dominating judicial utterances in Sir Victor Windeyer’s wordy jungle thereafter, in the different context, related but different context, of causation for the purposes of the law of tort and particularly the tort of negligence, the question has been whether the defendant’s act or omission caused the plaintiff’s loss, and the rule of law is that not all consequences of the act or omission are to be held in law to have been caused for the purposes of the liability, that is the responsibility of the defendant to compensate the plaintiff.
And so, in the different but, as I say, somewhat related context of the common law use of the words “cause” and “consequence”, it has been a truism, difficult in particular cases, and fluctuating over different courts and times, nonetheless a truism, that not all consequences are to be treated as having been caused by the act or omission. This is a statutory context which has distinct contextual features which place it apart from a direct imitation of the tort question, because here the statutory formula positively requires one not to make a link back to a human actor’s act or omission but first of all a link to a thing, an object, a motor vehicle and, in the second thing/link, to an activity, namely the driving of a motor vehicle.
KIRBY J: Yes, but it still uses the word “cause”.
MR WALKER: It does.
KIRBY J: That imports all sorts of baggage.
MR WALKER: I am trying to have the best of both worlds, your Honour; I am trying to say that baggage is an important juristic background to this statutory wording, but pointing out, nonetheless, there is statutory wording and the context is not the same question as applies in tort of is there a causal link to the consequence in question, whereas I say I start by simply observing that courts have habitually said not all consequences, whatever the logicians may say, are caused for the purposes of the law. That is even before one gets into the difficulty, probably the most obvious difficulty in the wordy jungle, created by the use of epithets like “direct” or “proximate”.
The next point I make is this, that in the first limb, which rather oddly talks about attributing causation to an object, an inanimate concrete thing, a motor vehicle, we are told by section 3(7) that that cannot be fulfilled unless either an activity has occurred in the causal narrative or there is a state of action or being by the motor vehicle in the causal narrative and those other two possibilities of driving and running out of control. Driving, like driving in the second limb of the statutory formula itself, obviously involves a human actor, but still it is important to note that the statutory formula does not ape entirely the tort question, which simply asks: did somebody’s act or omission cause a loss? It then emerges, from the way in which section 3(7) is structured, whereby it is a command to the relevant world as to what shall not be taken to have caused a consequence to cause an injury.
KIRBY J: That assumes that otherwise there would be a larger genus that would be caught.
MR WALKER: That is the first point, yes, your Honour, and that, of course, would emerge from a literal reading of the basic formula in itself. So the first possibility is that if one were to dismiss that it is simply surplus, it is simply for more abundant caution, the first possibility is that it clearly implies or conveys that in reading these words, which discriminate between consequences which may be taken to be causal and consequences which shall not be taken to be causal, the implication is that, but for the provision, they would or may have been so held, from which it follows, and not surprisingly, that the statutory words in section 3(7) are, in fact, when they use the word “consequences” talking about a subset of those events or outcomes which may have been caused so as to result in injury to the person.
Consequent therefore is the pool of events in a historical narrative which are candidates to the cause of an injury. Section 3(7) says, of those candidates, divide them into two. One is, consequence of driving or running out of control and the other is other than that category, and those candidates are then discriminated between. Only the first may be considered for the question which the statutory formula asks: did the driving of the vehicle directly cause the injury; did the running out of control of the vehicle directly cause the injury?
KIRBY J: I think you have omitted to refer to something which, at least in my present thinking, is favourable to you and maybe it is implicit in what you have just said, and that is, “shall not be taken to have been caused by the vehicle”. That rather implies that, but for section 3(7) the words “caused by a vehicle” would have potentially a very large ambit.
MR WALKER: Quite.
KIRBY J: But, we are not going to allow that, because that would go beyond the policy which the legislature is now introducing to cut this entitlement back ‑ ‑ ‑
MR WALKER: The anti-Dickinson policy. Yes, your Honour.
KIRBY J: ‑ ‑ ‑and therefore, although prima facie “caused by a vehicle” could have a very wide ambit, you are not going to get that; you are only going to get it if it is a consequence of driving the vehicle or the vehicle running out of control.
MR WALKER: Quite so, your Honour, yes, I do rely on that reasoning. There are two ways in which the breadth of the expression “caused by a motor vehicle” are cut down. The first is by section 3(7) in the manner I have already stated sufficiently often, I fear; the second is by the adverb “directly”, which, of course, also cuts down the second limb.
CALLINAN J: Mr Walker, the words “vehicle running out of control” clearly convey the notion of a vehicle in motion, and that may influence the meaning of the earlier word “driving” to mean that it is also referring to a vehicle in motion, driving in that sense.
MR WALKER: Yes, your Honour. I put an argument to that effect yesterday and if I may ‑ ‑ ‑
KIRBY J: Yes, but the respondent does not worry about that. The respondent says the significance is it is a consequence, it does not say a direct consequence, and we say it is a consequence of the propulsion of the vehicle.
MR WALKER: Quite, I have to deal with that, yes, but the first thing is, it involves motion, yes.
CALLINAN J: Another thing that occurs to me about 3(7) is that if you give “cause” the very expansive meaning that courts have given it, you then have to regard the words “if it is not a consequence” as words of limitation or confinement.
MR WALKER: Yes, your Honour.
CALLINAN J: So that “consequence” in that sense is obviously intended to be something much narrower than legal causation in the ordinary sense.
MR WALKER: Certainly. It is not so much, if I may so, the word “consequence” in itself as a common noun is narrower than the word “cause”, rather that in 3(7), as I think your Honour is putting to me, it is clear that it is being used to describe a subset of what would otherwise be within the notion “cause”. But it is a subset; it is not a different notion.
CALLINAN J: It is a narrower aspect of the former.
MR WALKER: It is a narrower class than what would otherwise be within “cause”.
McHUGH J: Can I tell you the difficulty I have with your argument. It is that you give the term “caused by the vehicle” in section 6 and in the policy no content whatever, except what can be derived from 3(7). In other words, you say “caused by the vehicle” means a consequence of the driving of the vehicle.
MR WALKER: Well, the first thing to be said, your Honour, is they seem trivial, but it may be the only explanation of this scheme. The first thing to be said is that we know from 3(7) that it goes beyond driving, because it does include running out of control, so it will include the parked semitrailer, brakes failing, going over a kerb and hitting a pedestrian. So we know that it goes beyond driving. We know that they were intent on cutting down what this Court had done in Dickinson to a formula which employed the expression “use”.
The argument which we advance may appear to have a weakness that the difference between the first and second limbs does not appear to be great. I have noted one, which is clear on the text, and that includes running out of control. That is not a weakness of our argument; it is a quirk of this statutory scheme, because it is inescapable that 3(7) is a reading down provision in relation to 4(6) and the Schedule’s first limb in the formula. That is an inescapable proposition.
McHUGH J: That is true. I do not expect you to agree with this proposition, but it does seem to me that the natural reading of the Act is that section 6 and the Schedule deal with two hypotheses: one, where bodily injury is directly caused by the vehicle and, two, directly caused by the driving of the vehicle.
MR WALKER: Your Honour, I think I have already agreed with that yesterday ‑ ‑ ‑
McHUGH J: Yes, everyone agrees with that.
MR WALKER: ‑ ‑ ‑but for 3(7), that must follow.
McHUGH J: That must follow. And 3(7) says that although it is directly caused by a vehicle, you must also show that it was a consequence of the driving of the vehicle or that the vehicle has run out of control. In other words, it is directly caused by the driving or directly caused by the vehicle, but only if it is the consequence of the driving or running out of control.
MR WALKER: Your Honour, I do not think, with respect, my argument differs much from that. The difference between the parties and what, with respect, I think your Honour is suggesting I ought not to accept from your Honour except by surrender is what the word “directly” does in that. That is, of course, as I said in my opening yesterday, “directly” is the word ‑ ‑ ‑
McHUGH J: Well, that is true, because what I am putting to you is “directly” in section 6 and in the Schedule, so far as the first limb is concerned, looks to the connection between the bodily injury and the vehicle; there must be a direct causal connection. But 3(7) then cuts down that effect, which would be in most cases quite a simple case to prove, by saying it is not enough. For instance, there has been impact between the vehicle, thereby causing injury; you must go on to show that that impacts and is a consequence of the driving of the vehicle or the vehicle running out of control.
MR WALKER: Well, with great respect, using words to talk about words in a statute runs the risk of paraphrase and, in our submission, your Honour has taken that risk and it has fallen in, because your Honour has there used a new formula which posits a connection between an impact and driving, whereas ‑ ‑ ‑
McHUGH J: No, between the vehicle.
MR WALKER: Yes, an impact of the vehicle, whereas 3(7), we do not ever use the word “impact”. It may be that physical impact is the paradigm case of direct causation by a motor vehicle of injury, but ‑ ‑ ‑
McHUGH J: But is it not strange that the Act talks about direct causation and then again uses a different causal term ‑ ‑ ‑
MR WALKER: Yes, it is strange.
McHUGH J: ‑ ‑ ‑ “a consequence of the driving”?
MR WALKER: It is strange that “driving” appears in the reading down provision for the first limb and also appears as the main concept in the second limb. It is strange.
KIRBY J: It is strange, but once you concede that, given that this is legislation for the giving of insurance ‑ ‑ ‑
MR WALKER: For the limiting as well.
KIRBY J: ‑ ‑ ‑ leaving aside the question of beneficial because I think that is a bit of a red herring, but it is for the giving of insurance and the giving of very important insurance – important for the recovery of plaintiffs, important for the indemnity for insureds – given that it was designed to cut it back, if there is ambiguity, should not this Court construe the ambiguity, taking into account that this is insurance and that the ambiguity really must be construed against you?
MR WALKER: Emphatically not.
KIRBY J: Why not?
MR WALKER: For the following reasons. There is nothing in the nature of a natural right or every Englishman’s birthright in having the liability of your tortfeasor insured by a large fund. That is the first thing.
KIRBY J: Yes, but if the statute and the statutory policy do not make it clear, then the insured cannot go out and get top‑up insurance. The insured is sort of stuck with whatever the statute says.
MR WALKER: All I am saying, your Honour, is that one cannot posit that there is any background right or liberty of a kind which ‑ ‑ ‑
KIRBY J: No, I am not talking in terms of a common law right that has to be preserved when in default of clear legislation ‑ ‑ ‑
MR WALKER: Your Honour, I am simply saying – that is my first point in answer to your Honour’s question is that this is not the familiar statutory case of ensuring that the putative cutting back of a previous liberty or right goes no further than the words require. We are not talking about that. That is the first thing. The second thing is, as, with respect, your Honour appropriately said, tendentious epithets like “beneficial” are red herrings. They conclude the argument rather than demonstrate its correctness. The third thing is we know for sure the prehistory and occasion in the mischief sense of the particular legislation which we are construing.
KIRBY J: Yes, we know it, but we know that they only achieved it to the extent that they expressed it and what Justice McHugh has put to you is, in effect, saying, well, analyse it verbally.
MR WALKER: Your Honour, may I, with respect, say none of my arguments should be understood as going outside that. It is not a matter of ensuring that they, that is, the parliamentarians of the time, get now what they apparently thought they wanted. It is a matter of what did the text produced by that process say? I accept all of that. However, this Court has said time and time again – and we have referred to classic passages in our written submissions – that it is appropriate and proper judicial deference to the parliamentary process to observe the evident mischief in order to take that into account when construing it.
KIRBY J: No one has been more forthright in that than Justice McHugh. Justice McHugh was perhaps the first to really embrace it in Australia, the purposive construction, but the question is, what is the purpose? Then you look at the words.
MR WALKER: Yes, your Honour. Can I take another faltering step towards answering your Honour’s question? Yes, purposive and mischief I do rely upon. The next thing is that the notion lying behind your Honour’s terminology, this is a statute about the giving of insurance, needs first of all ‑ ‑ ‑
KIRBY J: I should have said the buying of insurance because the respondent buys it.
MR WALKER: ‑ ‑ ‑ to be examined in light of the different interests involved. It is evident that the main social interest, to put it vulgarly, that where most votes lie in such legislation, electors votes, is for the injured, not the injurer, it is for the injured. It is to ensure that feckless drivers without any money found liable for maiming someone and blighting their prospects will not be found liable with the damages worth nothing, but that the injured will not be going onto the welfare and will be getting compensation appropriately, because there is a large fund standing behind that liability. That is obviously the biggest interest.
CALLINAN J: A lot of this started, Mr Walker, as a contest between workers compensation insurers and motor vehicle insurers.
McHUGH J: …..be sure this is one of them, one of those cases.
MR WALKER: I was about to say your Honour could rest content that is not mere history.
CALLINAN J: And the legislature wanted the general public, most of whom had a motor car, to bear the cost rather than industry. That is what happened.
MR WALKER: To bear what I will call their fare share, adjusted each time some decision shocked underwriters or loss adjusters, your Honour, yes, or people who have never had to go to an election campaign and talk about compulsory registration fees going up more likely. So that is the first interest. The second interest is obviously those people who would otherwise be privately insuring, that is, they have a statutory policy which is mandatory, which some people would privately insure and some people would not, and that will also include the group of people who happen both to be owners of motor vehicles and employers, for the reasons that your Honours Justices McHugh and Callinan have just pointed out.
Of course, the third set of interested people are the people who are involved in considering on an economic basis where the incidence of these accidents financially should fall, including the way in which they are compensated. That is a mixture of interests classically to be resolved, if at all, politically, and not, in our submission, to be the subject of anything by way of a priori presumption by a Bench that greater cover or lesser cover or the same cover is a starting point to any particular argument. However, in this case we ‑ ‑ ‑
KIRBY J: Mr Walker, I have a problem. I have an ambiguous piece of legislation. Your answer is, all right, you have that problem, look to what Parliament was doing, they were cutting it back ‑ ‑ ‑
MR WALKER: Your Honour, may I first of all say I should not have so readily assented to the proposition that it was ambiguous but, with respect ‑ ‑ ‑
KIRBY J: I think it is ambiguous and I do not think we would be here if it was not ambiguous.
MR WALKER: It is the subject of argument. If that is the definition of ambiguous, it is certainly ambiguous, but, in our submission, there is no word here, particularly the word “directly”.
KIRBY J: Yes, there is. The word is in the formula in 3(7) which is “a” and in the ‑ ‑ ‑
MR WALKER: Well, “a” simply means that they are more than one consequence. That is all it can mean.
KIRBY J: ‑ ‑ ‑ omission of the word “directly” in 3(7) and, therefore, what are we to make of that juxtaposition with the use of the word “directly” in 7?
MR WALKER: That last point can be dealt with rather simply, in our submission. Would it be supposed by judicial technique that Parliament’s insistence on the word “directly” governing the whole phrase “in the policy” will disappear by Parliament’s ancillary direction as to how one of the words in the formula, not “directly”, is to be understood.
McHUGH J: Not at all, it does not disappear. You still have to show that it was directly caused by the vehicle, but it does not get you home unless you can also show that that was a consequence of the driving.
MR WALKER: Your Honour, I think I have already said yes to that and my pleading example is intended to convey that in a more formal fashion. However, in our submission, the word “directly” continues to play a role. It does not, with respect, seem that your Honour is putting something differently from that. I am simply submitting that the word “directly” does not fall away like some first‑stage rocket and cease to be part of the inquiry. It remains as a requirement of the nexus between injury and motor vehicle throughout.
KIRBY J: Justice McHugh’s two‑stage approach says, all right, we have satisfied that. It is directly caused by the motor vehicle because the motor vehicle fell on it, fell on his hand, and then you go to the second stage and you apply it, and that is in fact how the statute is structured. If that is how the statute is structured, why should we not give effect to it? That is how Parliament has said it. You are the one who has to try and make the ambiguity to your advantage.
MR WALKER: I understand that, your Honour. The answer to your question is, if that is how it is structured, then you are bound to give it effect accordingly. My submission is that we have “directly caused by a motor vehicle” and we know that “caused by a motor vehicle” means it must be a consequence of driving, from which it follows that it must be directly a consequence of driving. Your Honour, that appears to be inescapable in the sense of no ambiguity there.
One thing is clear: you cannot get from that that it may indirectly be a consequence of driving. That would seem to flout what Parliament has insisted upon by the emphatic word “directly” in front of “caused”, bearing in mind that we know from the paragraph in Dickinson which I have quoted that it was considered by their Honours in that case that “caused” was direct, compared to “arising out of”, and it was narrowing down from “arising out of” and it was narrowing down from “use”.
KIRBY J: Your argument is it would flout the language and it would flout the apparent purpose of Parliament in introducing this more restricted ‑ ‑ ‑
MR WALKER: That is right.
KIRBY J: That, in effect, you have to pick up 2(7) ‑ ‑ ‑
MR WALKER: Section 3(7) is the ‑ ‑ ‑
KIRBY J: ‑ ‑ ‑ and put it right back into the principle and that is how you argue it textually.
MR WALKER: Section 3(7) is a direction to those seeking to apply 4(6) in the Schedule.
KIRBY J: It leaves “directly” governing the formula that you picked up and put into the ‑ ‑ ‑
MR WALKER: And “directly caused” in the formula therefore turns into “directly a consequence of driving”.
CALLINAN J: You simply do not have a compensable injury unless you can satisfy 3(7).
MR WALKER: Yes, unless it is directly a consequence of driving, then you do not ‑ ‑ ‑
CALLINAN J: You do not even have a compensable injury.
MR WALKER: So you have a compensable injury ‑ ‑ ‑
CALLINAN J: Not under this Act.
MR WALKER: It will not be caught by the scope of the indemnity for the liability. Your Honours, as part of the prehistory, one of the cases cited in Dickinson by counsel, not cited in their Honours’ reasons, but a very familiar one in the area – we have provided copies to your Honours – GIO v King (1960) 104 CLR 93 at 99, there commences and goes over to page 100 – one would need to compare with that the reference on 105 as well – there is the well‑known passage by Mr Justice Menzies where there is the impossible attempted, as his Honour suggests might be the case, attempted with what his Honour says are some plain cases. Now, this was “arising out of” or “caused by” the use of a motor vehicle in those days. On page 100 among the examples one has, for example:
the greaser who is crushed by the car when a power hoist supporting it fails –
One thing is clear, that it is a consequence of the driving of a motor vehicle that the grease needs to be changed. A logician will tell you that, so indeed will commonsense, but as to “directly a consequence of the driving” that the greaser is crushed because a hoist in his case or, in our case, a jack fails ‑ and that is what happened, a jack failed – to talk about a “direct consequence of the driving” is, in our submission, to fly in the face of what was known about the judicial history of the kind of provision construed in Dickinson which itself was overtly the target of this restrictive attempt.
GUMMOW J: It was a “consequence of” in the sense of sine qua non, was it not?
MR WALKER: Yes, exactly. It is a necessary link in the chain. The same thing is true if I drive my motor car to one of those drive through car washes and an attendant swans around and burns himself on my hot exhaust pipe. It is direct. There is the direct impact of the superheated metal on his leg. It causes an injury. It is certainly a consequence of the driving because that is how exhaust pipes get hot. Furthermore, it is by driving that I managed to get my car in that location where the body and the exhaust pipe collide. You do not have to be a logician to see that is a consequence, but it is not direct.
GUMMOW J: But is the phrase in 3(7) “not a consequence of” designed to pull out the various strands involved in theories of cause and consequence and to require something more than a sine qua non?
MR WALKER: Yes.
GUMMOW J: What is the something more?
MR WALKER: The “directly”, which continues to govern.
GUMMOW J: What is the content of that?
MR WALKER: Your Honour, here again the temptation is to lapse into mere argument by synonym. I have authority for saying maybe the content is proximate or immediate or without intervening independent cause, but as the authorities to which we have drawn attention, in particular, Hart and Hanore’s famous passage to which we have drawn attention shows, it is quite impossible to maintain for more than a few seconds the artificiality of the distinctions involved. However, the law is not put off by that artificiality and does distinguish by something it chooses to call commonsense between those things ‑ ‑ ‑
GUMMOW J: That is just, to my mind, rubbish.
MR WALKER: Your Honour, I am not suggesting that there was a body of doctrine called commonsense that justifies this.
GUMMOW J: Yes, quite.
MR WALKER: I am simply saying that ‑ ‑ ‑
KIRBY J: You have said it many times, that causation issues ‑ ‑ ‑
MR WALKER: All I am saying it is not a body of doctrine, your Honour.
GUMMOW J: Any philosophy 1 student who started babbling about that in class would be in trouble.
MR WALKER: It is a flag which is flown to say, do not ‑ ‑ ‑
GUMMOW J: Cannot further explain.
MR WALKER: That is right, do not expose this to the scrutiny it would get somewhere else.
GUMMOW J: I would want to be able to further explain, so what is the content of the word “directly”?
MR WALKER: It means that there has not intervened ‑ ‑ ‑
GUMMOW J: Bearing in mind that this is all about fixing legal liability, so it is not a purely philosophical debate.
MR WALKER: No, and legal liability of a particular kind, namely, to indemnify for liability for injury. This is not a code for compensating injuries; this is a code for indemnifying tortfeasors.
GUMMOW J: Yes.
MR WALKER: Bearing that in mind, “directly” means first that there has not intervened between here the driving of the motor vehicle and the injury actions or conditions which are not integrally part of the driving, which are not merely an aspect of the driving. That will primarily cover most cases. It certainly covers the present case with a successful outcome for our argument because here we have not merely the antecedent first phase activity whereby the truck had inadequate inventory, blocks for the jack, and the driver had inadequate training, but also the third phase activity, namely, the driver stupidly, certainly negligently, as has been held, putting the jack insecurely in the wrong place and, furthermore, positioning the unfortunate plaintiff in the place where the horrible injury occurred.
Those both, particularly the third phase activities, classically answer the description of intervening activities or conditions not an integral aspect of the driving, whereby one might cheerfully trace indirect consequence, one might, but one would not get direct consequence. Introducing the word “indirect” is perhaps inappropriate, simply say it is not direct.
McHUGH J: But do you concede that your argument requires 3(7) to be read as though the word “direct” was in front of “consequence”?
MR WALKER: Never, never.
McHUGH J: You do not?
MR WALKER: I would never concede that. That is wholly outside my argument.
KIRBY J: You say it is already up there and all you are doing is picking it up?
MR WALKER: It is there. It never disappears. Section 3(7) is not some emollient that sweeps “directly” away. It never relaxes the rigour of the test that whatever be the consequence of the driving, see 3(7), the injury must have been directly caused by the driving – directly a consequence of the driving.
McHUGH J: Does that not mean that the so‑called first limb is superfluous unless the vehicle has run out of control?
MR WALKER: At the outset this morning I think I have said, your Honour, first of all, however trivial that may sound, it clearly covers important matters. It clearly covers important matters. It could have been done another way, by defining “driving” so as to include driverless driving.
McHUGH J: On your argument the second limb covers just about all the ground in any event, does it not?
MR WALKER: No, it does not cover all the ground.
McHUGH J: No, it does not cover all the ground, but it covers nearly all of it, except when vehicles run out of control.
MR WALKER: Your Honour, I have used the word “strange”. Justice Kirby treats that, I think, as if that amounts to a concession on my part. With respect, no. It is an observable strangeness of this drafting not only what I noted yesterday, that 4(6) and the Schedule do the things they do in that totally separate fashion, not only that rather than talking about locomotion, they have driving and running out of control, but most significantly for the present argument it is odd, strange, curious, that “driving” appears in both limbs of what appear to be a pair of alternatives, for that is perhaps overlapping but different areas of reference.
That is odd, but it is not something that helps the respondent because there it is, they have to satisfy “driving” both ways, and they have conceded that this injury was not directly caused by the driving of the vehicle, which leads to my concluding argument. It is clear that what the respondent says is, one, this injury not directly caused by the driving of the vehicle, and two, this injury directly caused by the motor vehicle because it is a consequence of the driving, whereby we have the wholly contradictory and, in our submission, perverse result – perverse in the Hayden’s Case sense – that the respondent’s argument says not directly caused by the driving of the motor vehicle but the indemnity is there because it is indirectly caused by the driving of the motor vehicle.
I used the word “caused” in that last statement because unless it causes then it is not a consequence. Consequence is a subset of cause, it must be. Whereby their argument says the scope is denied because it is not directly caused, but the scope is available if indemnity is available because it is indirectly caused.
McHUGH J: Another way of looking at it is to say it is dealing with two causal hypotheses: bodily injury caused by the vehicle and bodily injury which is a consequence of the driving of the vehicle. So you have to satisfy both. You only have to satisfy directly in respect of the causal connection with the vehicle so far as the first limb is concerned.
MR WALKER: Neither 4(6) nor 3(7) together or separately, they do not present as a requirement in the way that your Honour has set it out, namely that the injury involves only the operation of gravity upon metal on flesh, for example, which would be a direct cause by the motor vehicle, then having ticked that move on to a different inquiry as to whether it is a consequence of driving. That would be a familiar way of laying out a provision. Rather, 3(7) feeds back into one of the words in the verbal formula. It is significant that the word “directly” does not appear in 3(7) because it is looking at a subset of ‑ ‑ ‑
GUMMOW J: Well, one construction is you apply 3(7) first in a way and, unless you get within 3(7), you do not even have it caused.
MR WALKER: That is right.
GUMMOW J: If you have it caused, you then ask whether ‑ ‑ ‑
MR WALKER: Was it direct? That fits with the prehistory of Dickinson. That fits with meeting the mischief. May it please your Honours.
McHUGH J: Yes, Mr Jackson. I think we will call on you.
MR JACKSON: Your Honours, may I deal first with the question of the statutory provisions and secondly with their application to the case. If I could deal with history rather than prehistory for a moment, before the 1987 Amendment Act the relevant provisions of the 1943 Act had specified as the criterion the requirement that the death or injury possess one or both perhaps of two characteristics. They were that the death or injury either was caused by a motor vehicle, and in the ordinary course of events the classic case of that would be actual contact between the motor vehicle and the person in question. That was one possibility. The other possibility was that it arose out of the use of a motor vehicle.
Your Honours will see in the appellant’s book of authorities behind tab 1 the amending Act. Without going to the detail of it, could I take your Honours to section 14 of the actual amending Act where you will see an example of the words that were taken out and then the words that were put in. That phrase “caused by or arising out of the use of” a motor vehicle was one that was commonly used throughout much of Australia, although I think in Queensland the provision was different in the sense of saying “by, through or in connection with the motor vehicle”.
Your Honours, the application of the two tests might overlap but as tests they were distinct. Various States made various amendments in consequence of the decision in Dickinson, and I will come to that in South Australia which slightly preceded that in Western Australia in a moment which may have been the place from which the Western Australian provisions derived some inspiration. That made in Western Australia of course appears from the Act as it presently is.
The amendments relevantly did three things. First, the word “directly” was added. We accept that it was to qualify both arms of the phrase. The second thing is that the expression “arising out of the use of” the motor vehicle was removed as a test. Instead the words were “caused by the driving of the motor vehicle”. So “arising out of the use of”, the wider phrase was taken away. Instead it was “caused by the driving of the motor vehicle”. The third thing, your Honours, was that in relation to the first limb the disqualifying provision, if I can put it that way for the moment, of section 3(7) was added.
Two things are important and emerge from the alterations. The first is that it really could not be clearer, in our submission, than that the terms of section 3(7) apply only to the first limb. That that is so is because of the words that are used in it where it is said:
For the purposes of this Act, the death of or bodily injury to any person shall not be taken to have been caused by a vehicle if it is not –
and your Honours will see the phrase “caused by a vehicle” one which is used in the first but not the second limb of the joint phrase.
The second feature we would seek to say about the changes is that the provisions of section 4(1) and also the terms of the policy and also the other relevant provisions of the Act do preserve the two aspects of cover. That is in respect of death or bodily injury caused by the vehicle on the one hand and, on the other hand, caused by the driving of the vehicle. In that regard could I refer to section 3A. Your Honours will see that section 3A has the effect that sections 3C and 3D apply to assessing damages:
in respect of bodily injury to a person directly caused by, or by the driving of, a motor vehicle.
That has the effect that the limitations on damages which are referred to in the succeeding provisions have application. I will come back to that in a moment. The phrase is used also of course in section 4(1) and also in section 6(1)(b) and section 6(1)(c) refers to the form in the Schedule which contains the provision.
McHUGH J: And also in the long title. The long title to the Act was changed as well.
MR JACKSON: Yes, your Honour. Could we also invite your Honours to note three further aspects of the Act which are relevant to its interpretation, or the approach to its interpretation. The first is a general point and it is that the Act is not one which is to be interpreted with a predilection towards the interests of the appellant. Rather, Parliament was enacting legislation in which a number of classes of persons have significant interests. If I could endeavour to list some of them at least, the first class consists of injured persons. The Act is to give them someone who will pay in any event. Your Honours will see that from section 7(1) where the ‑ ‑ ‑
GUMMOW J: Are we construing the Act in its amended form or before its amendment or are we construing the amending Act?
MR JACKSON: I am sorry, your Honour, the Act as it stood at the time of the injury here. It is the Act in its amended form.
GUMMOW J: We do not have to construe the amending Act?
MR JACKSON: No, your Honour, the amending Act really for relevant purposes takes out the former expression “caused by or arising out of the use of the vehicle”, inserts the new provision and then makes provisions which are cognate to that.
GUMMOW J: But we do not have to identify any shortcoming or mischief in the statute in its previous form which the Parliament was addressing in the amending Act?
MR JACKSON: Your Honour, only to the extent of saying that the breadth of the expression “arising out of the use of” in the first place gave rise to a very wide ambit of cover. That is one thing that is identified. That is why one sees that reduced to the driving, “caused by the driving”. On the other hand, one could see that the circumstances in which there may be contact between a vehicle or part of a vehicle and a person who was injured but that contact have nothing to do with what could be broadly described as the driving of it. That is why the other part of it was somewhat reduced in scope.
But one does not see much more than that really together with what one would usually see, the fact that the courts will have to work it out in the end. One does not see in the speeches, including what seems to be relied on, the speech of a member in opposition, by our learned friends, in the parliamentary debates. Of course they say we are surprised at Dickinson but that is it and so we are going to make it rather narrower. Parliaments are sometimes surprised at things done by the courts, including this Court.
Your Honours, what I am trying to say at the moment is that it is not right to look at the statute as if all that Parliament had in mind was preserving the treasury of the Insurance Commission, because Parliament had in mind that there are a number of purposes and a number of interests served by the Act. The first is, as I was submitting a moment ago, the case of injured persons. The Act is to give them someone who will pay in any event. Your Honours will see in section 7(1) that if a judgment is unsatisfied, then they are entitled to:
recover by action from the Commission such amount of the money . . . payable . . . as relates to death or bodily injury and is unsatisfied –
So, first of all, that is one of the things that is established and that of course relates to death or bodily injury directly caused by or by the driving of a motor vehicle. So to have the right in section 7(1), it has to fall within the description.
Of course, the price that has to be paid in a sense by an injured person to obtain the benefits of the statute is that the benefits of the statute are conditioned by section 3A, that being the provision that means that for practical purposes a lower method of assessment of damages becomes applicable. Your Honours will see again used in 3A the words “in respect of bodily injury to a person directly caused by, or by the driving of, a motor vehicle.”
In respect of the owners of motor vehicles, which itself is a defined term – that is the second class of people – we pay substantial premiums for insurance pursuant to the Act. We are prevented from going to other people for such insurance. Your Honours will see that in section 3R. So we have to get a policy from them and the policy has to be issued – your Honours will see from 3R(3), “policies of insurance under this Act”. What we would say is that there is no reason why the Act should be given a meaning other than that provided for by its terms. There are two parties to these contracts. Why interpret it in a sense pro proferentem?
Your Honours, the third class of people for whom the Act provides a benefit is to be found in drivers who are not owners. If one takes the simple case of a family car, there are many people who drive it who are not owners of it. Your Honours will see the words “any other person” in, for example, section 6(1)(b) where the policy is to indemnify:
in respect of all liability for negligence which may be incurred by that owner or other person –
the other person being any other person who at any time drives that vehicle. So that the ambit of the cover is germane to take the ordinary case of the family car for the cover that is provided to the owner’s spouse or children.
Finally of course, your Honours, there is the Insurance Commission itself. What all that means, in our submission, is that the best course is to approach the interpretation of the Act simply according to its terms. No more but no less.
McHUGH J: There are two other interest groups. They are people who are injured by vehicles whose identity cannot be ascertained – they have an action – and the same in respect of uninsured vehicles.
MR JACKSON: Yes. I used also for brevity earlier the term “owner” as defined but your Honours will see it includes people who are hiring cars under hire purchase agreements and other persons.
KIRBY J: There would be other interests which are not mentioned but indirectly involved such as hospitals that otherwise do not get paid and doctors who do not get paid and physiotherapists and so on.
MR JACKSON: Indeed, your Honour.
KIRBY J: The scheme does not work. That was the whole purpose of the 1940 legislation in the first place.
MR JACKSON: Yes. Sometimes, of course, there are other interests such as a workers compensation insurer – not this case, I might say in passing – but sometimes there are other people who have an interest. Whether there is an entitlement in respect of double insurance or what entitlements may exist can be affected by the ambit that the cover given by the Act is determined to have.
KIRBY J: Do you say that this case – is this revealed by the evidence – is not one where there is an overlap between workers compensation insurance or – of course, this man was a crane driver, was he not?
MR JACKSON: Yes, he was employed by Brambles, not by us.
McHUGH J: Section 22 would seem to suggest that the Act is not concerned with the fact that there may be other insurance. It appears, does it not, that the motor vehicle is still insured even though it is used in an employment situation?
MR JACKSON: It is sort of really covering an employer’s vicarious liability, your Honour.
KIRBY J: Mr Sutton was not an employee of your client, is that correct?
MR JACKSON: No. The driver of the prime mover was of course.
KIRBY J: Yes, but he was an independent contractor of some kind or employed by somebody else.
MR JACKSON: He was employed by the Brambles Group. The second point relevant to interpretation is this, that the insurance contemplated by the Act covers but is not limited to negligence in the actual driving, in the ordinary sense of the term, of the motor vehicle. There may be no negligence in the driving of the motor vehicle but there still be cover provided by the policy. What the policy covers is liability for negligence of the owner or the driver – one can see this either from section 6(1) or the form of policy in the Schedule – “in respect of the death of or bodily injury to any person” where that has been directly caused by the motor vehicle or by its driving. The negligence may not be related to the actual driving of the motor vehicle.
The point I am seeking to make in that regard can be illustrated by the first case that your Honours will see in our book of authorities, State Government Insurance Commission v CSR Limited. It is behind tab 1. It is an unreported decision of the Full Court of the Supreme Court of Western Australia, 1 June 1999.
Could I take your Honours very briefly to paragraph 2 of the reasons of Justice Pidgeon, the other members of the court agreeing with his reasons. What your Honours will see is that it was a case where the vehicle was being driven along a road at the owner’s mine site. The employee was injured when he collided with a hump which had been constructed by the employer across the road and which the employee did not see. The employee alleged that the respondent was negligent in failing to warn of the hump. The judge found it was so. Then the question was, and this is towards the end of the paragraph, whether “the employee’s injuries were directly caused by, or by the driving of, the motor vehicle and that it was therefore entitled to indemnity”, and it was held that there was.
Your Honours will see - if I could mention in passing - paragraph 3, where there had been a submission “that the injury was not caused by the driving of the vehicle”, and it was held that it was, even though there was no negligence in that. The main argument in the case was whether persons who were drivers were covered. It was held that they were, and your Honours will see the conclusion set out in paragraph 18 some pages on.
That is the first point I would seek to make, your Honours, about the fact that what is covered by the indemnity is indemnity in respect of the liability in circumstances where the death or bodily injuries are directly caused by the motor vehicle or by its driving. But there is another aspect, your Honours, to the reference to negligence which one sees in section 6 and also in the policy. Your Honours, the appellant’s argument has said that if our ‑ ‑ ‑
KIRBY J: Is this the third point in the approach to interpretation?
MR JACKSON: Your Honour, it is the second part of the second point, I am sorry. I am sorry to be so ‑ ‑ ‑
KIRBY J: You know how neat I like to have these things.
MR JACKSON: Your Honour, I need to appear against Mr Bennett a little more perhaps. It is the second point of the second thing. The point is this, your Honours. The argument on the other side has been that if we are right, then injury to a repairer of a vehicle brought in for repair would be a consequence in terms of section 3(7). If one accepts that premise for the moment, it does not follow that there would be any entitlement to indemnity because the entitlement to indemnity is in respect of the owner or driver’s liability for negligence. If a person brings a damaged vehicle to a repairer for repair, the duties and obligations of the owner and repairer and the duties and obligations to the repairer’s employees do not reflect any legal characterisation of the acts or omissions which caused the vehicle to need the repairs in the first place. Your Honours, there would not be any liability that would arise. It would not matter how the damage to the vehicle occurred. The vehicle is simply brought in for repair. The repairer then carries out the work. The liabilities of the owner and repairer relate to that transaction.
Your Honours, the third feature, if I could get to it now, is this, and it relates to the reference by your Honour Justice Callinan yesterday to “wear and tear”. Now, “wear and tear” - inadequate maintenance, age, many other sets of circumstances can make a motor vehicle more likely to be involved in causing personal injury. It does not mean, however, that the person injured is without a remedy against the Commission. Could I in that regard refer your Honours first to the form of policy in the Schedule. Your Honours will see that the policy contains a number of warranties. One of the warranties is:
The owner warrants that the vehicle will not be . . .
(b) driven in an unsafe or damaged condition ‑
That is a warranty, your Honours. There is a qualification to it in the succeeding paragraph immediately above the heading “Conditions”. Bearing in mind the existence of the warranty, one then goes to two subsections of section 7. The first is section 7(4)(b). Your Honours will see that it provides that:
It shall be no defence to the Commission to an action against it ‑
for indemnity under the policy in effect, or indemnity ‑
that it is not liable under a policy of insurance by reason of the fact that ‑
and your Honours will see paragraph (b), there was a breach of warranty. Then, your Honours, one goes to subsection (5) and it then goes on to say:
Where any of the matters mentioned in subsection (4) has arisen or occurred in respect of a policy of insurance ‑
that is breach of warranty ‑
the Commission may . . . recover from the insured person liable ‑
and then, your Honours, if one goes to paragraph (a):
such part of any judgment so obtained against the Commission . . .
as have been recovered from or paid by the Commission by reason of the policy in respect to which a matter mentioned in subsection (4) has arisen or occurred ‑
The point we would seek to make about it is that those provisions do appear to recognise that there will be cases where, amongst other things, wear and tear is a factor leading to an injury having occurred, but the fact that that is so does not mean that the cover does not exist.
CALLINAN J: But there would need to be a judgment first, Mr Jackson, so that the requirements of the Act would have to be satisfied before the insurer could rely upon the warranty.
MR JACKSON: Yes, your Honour. All I am seeking to say about it is this, that if one is looking to see, say in terms of section 3(7), what is a consequence of the driving of a vehicle, if you take a vehicle that has got, say, a wheel that is not properly maintained and it is about to come off and as the driver goes along the wheel in fact comes off and hits someone, then one could say that is a consequence of the driving, even though one could say at the same time the vehicle was in a sense one that should never have been driven.
CALLINAN J: I know but, as you say, as the vehicle is being driven. I have to say, Mr Jackson, that your paragraphs 30 and onwards in your written submissions rather look like an invitation to the Court to adopt a “but for” test.
MR JACKSON: Your Honour, all consequence cases really do have a “but for” aspect, if I can put it that way. The question is what one treats as being consequences that are relevant. Now, your Honour, I am going to come on to the consequence part in just a moment if I may.
CALLINAN J: All right.
MR JACKSON: Your Honours, could I turn then for just a moment more specifically to the statutory provisions. If one goes to section 4(1) your Honours will see that it speaks in the opening words of - it provides the need for there to be insurance. The insurance covers things off a road as well once insured, but the occasion for having insurance is to be found in the opening words, “When any motor vehicle is on a road”. One sees also in 4(3)(a) the words “is used on a road”. That requirement suggests, in our submission, that subject to any limitations found in any later words, that the risks attendant to the vehicle being on the road are at least ones which are likely to be covered.
Our learned friends yesterday said that in relation I think to section 3(7) that the relevant nexus - and in the context it seemed that the phrase was being used to describe the nexus between on the one hand driving of the vehicle and running out of control on the other - was with movement of the vehicle. But if one takes a vehicle in circumstances rather like those of March v Stramare where you have a vehicle stopped in the middle of the road, another one running into it, it is difficult to see, with respect, that the injury to, say, a passenger in the moving vehicle would not be a consequence of the driving of the one that was stopped because it was driven and stopped in a particular place. One has similar things too of course with garbage trucks, buses and so on. Your Honours, could we note also that “motor vehicle” is defined by section 3(1) to include vehicles, like the semitrailer in this case, which do not themselves have motive power.
If I could then come to the two provisions. If one sees, for example, the expression “in respect of the death or bodily injury to any person directly caused by, or by the driving of, the motor vehicle”, what one sees, your Honours, is that there are simply two distinct, though sometimes overlapping, perhaps often overlapping, concepts. One is where the bodily injury is directly caused by the motor vehicle if the motor vehicle comes in contact with the person. On the other hand, one sees a bodily injury directly caused by the driving of the motor vehicle. One can see the difference between the provisions with in a sense a simple example. If you have a distracted motorist who drives onto the incorrect side of a road and collides with an oncoming car killing the driver, the death is directly caused by the motor vehicle which came onto the wrong side of the road. It was itself involved in the collision. If one assumes, however, that the oncoming motorist swerved to the side of the road to avoid the danger but, say, hit a culvert covered by grass and was killed, in that case the death would not have been caused, on one view at least, by the negligent motor vehicle but would have been directly caused by the driving of that vehicle.
Now, it seems clear, in our submission, that the words of section 4(1) are intended to refer to two different though often overlapping sets of circumstances. Section 3(7), in our submission, operates as a definition of the former but not the latter area of section 4(1). It simply has the effect, we would submit, that in the case of the first limb, the death or personal injury must have been directly caused by the insured vehicle on the one hand and, on the other hand, it must have been a consequence of the driving of the vehicle or of it running out of control. Your Honours, that , in our submission, is the plain enough meaning of the provision.
I mentioned earlier the position in South Australia. A little before the amendments in question in this case, what had been done in South Australia was simply to add a provision which is a form of equivalent to section 3(7), namely section 99(3) of that Act. The provision is in a case to which I will take your Honours in a moment, but could I just say that it was inserted by section 3 of the Motor Vehicles Act Amendment Act No 4 of 1986.
Could I take your Honours very briefly to two decisions in South Australia relating to its operation. The first of them is State Government Insurance Commission v Wagner (1993) 62 SASR 175, and it is behind tab 11 in the respondent’s book of authorities.
KIRBY J: Does not the appellant say that the South Australian legislation kept the use of the motor vehicle?
MR JACKSON: It did, your Honour, but what I am going to say about it is this, that if one looks at the South Australian position, what it did was to add section 99(3) which is somewhat similar to section 3(7), and what one sees in the first of these decisions is the way in which the two provisions are interpreted together. It does not turn so much on the precise words, your Honours, but on the approach to be taken.
McHUGH J: Well, it may be very important, Mr Jackson. I must say the weakness of your case as far I am concerned is in this phrase “consequence of the driving”. Now, you instance March v Stramare as a case that would be covered by the Act. I am far from persuaded that that is the case. I just cannot put my tongue around the concept at the moment but it does seem to me that when it talks about the driving and a consequence of the driving, it is really requiring something concerned with the actual control and management of the vehicle, whereas your argument almost equates “driving” to “use”.
GUMMOW J: Do you agree with the construction of the South Australia Act given by Justice Lander in ANI Corporation at tab 13?
MR WALKER: Your Honour is referring to Reiter?
McHUGH J: No, ANI 26 MVR 57, the passage at the top of page 74, behind tab 13, I think, in the respondent’s ‑ ‑ ‑
MR WALKER: Justice Lander was…..At the top of page 74 your Honour is referring to the characterisation of subsection ‑ ‑ ‑
GUMMOW J: The first two paragraphs at 74. Justice McHugh put it to Mr Jackson.
MR WALKER: Yes. These are the elements with which I agree and there are some elements with which I disagree. First, using the terms relatively loosely, such provisions are in the nature of definition or interpretation, although “definition” is perhaps not quite apt to describe what they are doing. Second, although it is true that such provisions do not purport to include any condition for indemnity, that, with respect, is begging the question of what do such provisions do by the command that they express as to application. That is, the definition or interpretation function. Clearly that affects condition for indemnity, so we disagree with some of the consequences that his Honour spells out from the characterising.
With great respect, to return to an argument we put in-chief about characterising provisions when Justice McHugh pulled me up on the point, it does not actually assist analysis simply to apply a label to the provisions and, in our submission, these two paragraphs illustrate that one may, on that foundation, go wrong.
GUMMOW J: What do you say about the second sentence in the second paragraph?
MR WALKER: That is certainly correct; that is our argument.
CALLINAN J: The first inquiry is whether there is an indemnifiable injury, is it not?
MR WALKER: Yes.
CALLINAN J: It is not a question of characterising provisions, interpretation provisions or anything else. You read the Act to find out if there is an indemnifiable injury and then consequences follow from that.
MR WALKER: You seek to apply that which Parliament has done. In this case we can see Parliament has imposed obligations which, put in their train, are certain rights and in the course of applying that, courts, with the function of doing so, are commanded to proceed in a certain fashion in relation to the notion of causation.
Your Honours, paragraph 51 at appeal book page 189 in the reasons of Justice Roberts-Smith were gone to by my learned friend as if that were a part of his argument. It needs to be observed that that is the paragraph, particularly its first sentence, which is completely abandoned, disavowed, in their argument, paragraph 13 of their written submissions, first sentence.
Finally, it would appear by an answer my learned friend gave to your Honours that another overall summary of the respondent’s position is that this injury was a direct consequence of the driving of the car, though it was of the truck, though it was not directly caused by the driving of the truck. In our submission, simply to state that is to illustrate the artificiality which is created and the subversion of the evident purpose of the provisions in question.
Reiter 70 SASR, upon which my learned friend relied, is a particularly inapposite authority to call in aid so as to contend that in this case a crushed hand was a direct consequence of the driving of the truck. Your Honours will recall, when questioned about his use of Reiter my learned friend contended that there the injury was the direct consequence of the driving of the truck because the driving of the truck had dislodged the wool bale, which then fell when the coincidence of gravity’s effect on it and the location of the person brought about the injury.
In our submission, one difficulty with that is that the authority has nothing to do with directness and that is not surprising because the word
“directly” does not appear in the statutory provisions, it is not at the heart of the statutory indemnity as it is in this case. Furthermore, at the heart of the indemnity in Reiter was the notion of the use of the vehicle, not driving; “driving” is in the extended or restrictive definition of “use”, but still it is use. “Directly” does not appear at all in any of the provisions which your Honours will find in 70 SASR 347 at 362 to 363. Clause 1 of the policy is the first appearance and section 99(3) of the Act is the second appearance. May it please your Honours.
McHUGH J: The Court will reserve its judgment in this matter and we will now adjourn to reconstitute.
AT 12.32 PM THE MATTER WAS ADJOURNED
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