Jewell v Tyre Marketers (Aust) Ltd

[2000] QSC 55

SUPREME COURT OF QUEENSLAND

CITATION:

Jewell v Tyre Marketers (Aust) Ltd [2000] QSC 055

PARTIES:

GARY RODGER JEWELL (Plaintiff) Respondent
and
TYRE MARKETERS (AUSTRALIA) LIMITED
(ACN 004 098 346) (Defendant) Applicant
and
SUNCORP METWAY INSURANCE LIMITED Respondent

FILE NO/S:

No 5611 of 1999

DIVISION:

Trial

DELIVERED ON:

20 March 2000

DELIVERED AT:

Brisbane

HEARING DATE:

6 March 2000

JUDGE:

B.W. Ambrose J.

ORDER:

I DISMISS THE APPLICATION

CATCHWORDS:

PRACTICE  - joinder of party – personal injury in connection with motor vehicle

Motor Accident Insurance Act 1994

UCPR 1999

COUNSEL:

Mr S W Sheaffe for the applicant
Mr M T O’Sullivan for the first defendant
Ms K Holmes for the respondent and proposed third party

SOLICITORS:

Clive Speakman for the applicant
Mullins & Mullins for the first defendant
Suncorp Metway for the respondent

1. This is an application by the plaintiff for leave to bring proceedings against Suncorp Metway Insurance Limited (“the insurer”) despite non-compliance with the requirements of Division 3 of Part IV of the Motor Accident Insurance Act 1994, (“the Act”) pursuant to s 39(5)(c) of that Act, and for an order that that insurer be joined as a second defendant to the plaintiff’s action pursuant to rule 691(b) and rule 692(e) and (g) of the UCPR 1999 and for further orders of a procedural kind.

1. The facts relevant to determination of this application may be stated shortly. On 28 September 1995 the plaintiff was employed by the defendant as a tyre fitter. In the course of his employment on that day he was required to perform a wheel alignment on a four wheel drive motor vehicle. He drove the vehicle onto a hoist and he then alighted from it, leaving it out of gear and with the handbrake off. He pushed the vehicle to a chosen position on and above the hoist and then raised it to about waist height and crouched down near the front of the vehicle. In that position he attempted to again operate the hoist however the four wheel drive vehicle moved forward and its front wheels fell over the front of the hoist and came into contact with him causing serious injury.

1. The plaintiff sues his employer for negligence and breach of statutory duty. It is unnecessary to refer in detail to the 14 particulars of negligence and/or breach of statutory duty pleaded. It suffices to say that they may be categorised as failing to provide a safe system of work or a safe hoist or to give the plaintiff proper training or instructions on how to perform a wheel alignment on a four wheel drive vehicle.

1. It is the defendant’s case that the CTP insurer of the four wheel drive vehicle which caused injury to the plaintiff is required pursuant to s 5 of the Act to indemnify the defendant against any liability which the plaintiff establishes against it on the facts to which I have referred.

1. Section 5 of the Act provides:-

“5.(1)     This Act applies to personal injury caused by, through or in connection with a motor vehicle if, and only if, the injury –

(a)         is a result of –

(i)         the driving of the motor vehicle; or

(ii)       a collision, or action taken to avoid a collision, with the motor vehicle; or

(iii)      the motor vehicle running out of control; or

(iv)       a defect in the motor vehicle causing loss of control of the vehicle while it is being driven; and

(b)       is caused, wholly or partly, by a wrongful act or omission in respect of the motor vehicle by a person other than the injured person.

(2)For an uninsured motor vehicle, subsection (1) applies only if the motor vehicle accident out of which the personal injury arises happens on a road or in a public place.

(3)However, this Act does not apply to personal injury caused by, through or in connection with –

(a)         a backhoe, bulldozer, end-loader, forklift, industrial crane or hoist, or other mobile machinery or equipment; or

(b)         an agricultural implement; or

(c)         a motor vehicle adapted to run on rail or tram tracks; or

(d)        an amphibious vehicle; or

(e)         a motor vehicle of a class prescribed by regulation;

unless the motor vehicle accident out of which the injury arises happens on a road.”

1. Both the plaintiff and the insurer contend that on the facts pleaded by the plaintiff it cannot be said that the plaintiff’s injury was caused by “a collision” with the four wheel drive motor vehicle which was involved with his injury when it rolled off the hoist and further that the plaintiff’s injury was not caused “by, through or in connection with a motor vehicle” within the meaning of s 5(1) of the Motor Accident Insurance Act 1994 so as to make the insurer liable under its CTP policy.

1. In the second reading speech of the Motor Vehicles Insurance Act Amendment Act 1988 the Minister observed:-

“It is necessary to amend the Motor Vehicles Insurance Act to –

-Ensure that cover of ‘by, through or in connection with’ a motor vehicle relates to the more direct use of a vehicle;

-Ensure CTP liability is restricted just to that – and is not extended to matters which are rightly workers’ compensation and public liability claims…”

1. In dealing with this application I propose to adopt the approach of Davies JA in Townsville Trade Waste Pty Ltd v Commercial Union Assurance Company of Australia Limited Appeal No 3020 of 1999, judgment delivered on 14 September 1999. Davies JA and White J were the majority judges in that case but as I read their reasons it cannot be said that they arrived at the conclusion that the appeal ought be dismissed for identical reasons.

1. In that case the primary judge had held that the repairer of a truck who was killed when part of it fell on him as he worked repairing it could not be said to have been killed as the result of “a collision” with that truck. On my reading of her judgment White J also came to that conclusion. However Davies JA also held that upon its proper construction s 5(1)(a)(ii) of the Motor Accident Insurance Act 1994 construed in the light of the second reading speech to which I have referred was limited to an injury resulting from a collision with a vehicle “in its function as a motor vehicle.” The learned primary judge had held in effect that the CTP cover was, as His Honour put it, “qua a vehicle”. Davies JA held that that conclusion was correct for two reasons –

“The first is that it excludes from the operation of sub-para (ii) an event which would not in ordinary language be thought of as a collision with a motor vehicle. The second is that it restricts the operation of sub-para (ii) to a category consistent with the restricted operation of the other sub-paragraphs. The sub-paragraphs as a whole then provide a consistent and coherent basis for application of the section.”

He continued:

“The restriction is also consistent with the apparent purpose of s 5(1)(a) so far as that can be derived extrinsically. The provisions of s 2(2) of the Motor Vehicles Insurance Act 1936 and the Minister’s second reading speech on its introduction are only indications of this. Before the introduction of that subsection there were two prerequisites to the liability of the motor vehicle insurer; that the liability must be in respect of a motor vehicle and that bodily injury must be caused by, through or in connection with a motor vehicle. Section 2(2) introduced a further prerequisite. It was said by the relevant Minister on his second reading speech introducing that provision that its purpose was to “ensure that cover of ‘by, through or in connection with’ a motor vehicle relates to the more direct use of a vehicle”. It may be safely assumed that s 5(1) which is in similar but relevantly narrower terms has the same purpose.”

Section 5 2(2) of the 1936 Act provided:

“(2)       Accidental bodily injury (fatal or non-fatal) caused on or after 22 September 1988 is not injury to which any provision of this Act applies unless it is a consequence of –

(a)        the driving of a motor vehicle;

(b)        a collision, or action to avoid a collision, with a motor vehicle when stationary;

(c)        a motor vehicle running out of control;

or

(d)      a defect in a motor vehicle.”

1. His Honour went on to distinguish McEwin v The Council of the City of the Gold Coast (1987) 1 Qd R 337 and agreed that that case had been decided before the 1988 amendment to the Motor Vehicles Insurance Act 1936. Adverting to the further prerequisite of s 2(2) to which I have referred His Honour observed that had that case come before the court after the 1988 amendment came into force the decision would have gone the other way.

1. I propose to adopt the approach of Davies JA in the Townsville Trade Waste case and in doing so I attach importance to the Minister’s second reading of the 1988 amendment to the 1936 Act.

1. The contention of the defendant in the present case, if accepted, would achieve a result which would extend CTP liability “to matters which are rightly workers’ compensation claims” which was one of the very things that the 1988 amendment was designed to avoid.

1. In my view on the pleadings the four wheel drive motor vehicle which injured the plaintiff when it fell off the hoist crushing him as he was in the process of commencing to align the wheels of that vehicle, was not moving “as a motor vehicle”; it was not in fact functioning “qua a vehicle”. The use of ordinary language would not describe what happened to the unfortunate plaintiff when the motor vehicle rolled off the hoist onto him as a “collision” of that motor vehicle with him. Prima facie a CTP liability for injury resulting from a collision with a motor vehicle relates to a liability resulting from use of that motor vehicle qua motor vehicle and not a liability for injury sustained in the course of the mere repair or servicing of that vehicle which does not involve using it as such. To categorise those activities as “a use” of the motor vehicle within s 5(i) of the Act, in my judgment, is to apply a gloss to the wording of the section which is unwarranted by any acceptable standard of statutory construction in the light of the Minister’s second reading to which I have referred. It would not be correct in my view to categorise the event which led to the plaintiff’s injury as being in any way a “direct use” (or for that matter even “an indirect use”) of that vehicle. The vehicle was simply being serviced on a hoist. It was not being “used” as a vehicle for any purpose for which it had been manufactured or indeed for any purpose at all. It was the hoist which was being used and not the motor vehicle. It was clearly the stated purpose of the 1988 amendment to limit claims under a CTP policy to those arising from a direct use of the insured vehicle “qua vehicle”.

1. It was contended for the insurer that the hoist in issue came within s 5(3)(a) as an “industrial hoist”. The facts pleaded in the statement of claim however do not describe it as a “mobile industrial hoist” of a kind which might be used upon a road, which in my view is the sort of industrial hoist contemplated by that section and it is unnecessary to decide that point upon this application.

1. I therefore dismiss the application.

1. I order that the defendant pay to the plaintiff and to Suncorp Metway Insurance Limited, the respondents to its application, their costs of and incidental to the application to be taxed.