Kennedy v Astec Pty Ltd

[1990] HCATrans 219

Afrr -l.) 1,AU_ STRALIA,1& - .. ,)-))3:)>$~'----

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M22 of 1990

B e t w e e n -

BYRON THOMAS JAMES KENNEDY

Applicant

and

ASTEC PTY LTD

Respondent

Application for special leave

to appeal

DAWSON J TOOHEY J McHUGH J

Kennedy 1 7/9/90

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 7 SEPTEMBER 1990, AT 12.30 PM

Copyright in the High Court of Australia

MR J.P. KEENAN, QC:  May it please the Court, in this

application I appear with my learned friend,

MR A.W. ADAMS, for the applicant. (instructed by

Scammell Black & Co)

MR E.W. GILLARD, QC: If it please the Court, I appear with

my learned friend, MR P.Y. RATTRAY, for the

respondent. (instructed by Dunhill Madden Butler)

DAWSON J:	Mr Keenan.
MR KEENAN:	If the Court pleases, this is an application for

special leave to appeal from a majority decision of

the Full Court of Victoria on 28 June 1990.	The
issue hinges upon the question of whether the

plaintiff's injuries were caused by or arose from

the use of an admitted motor vehicle, the "admitted

motor vehicle" in this instance being a paving

machine.

The majority judgments of Mr Justices Crockett

and Southwell are, we contend, open to an analysis

that His Honour Mr Justice Crockett concluded that

the plaintiff's injuries arose from a

categorization of "working upon the vehicle". With

Your Honours' leave, I might pass the outline of

arguments to the Court. His Honour

Mr Justice Southwell, in our submission, followed

much the same course. His Honour

Mr Justice Murphy, in dissent, in our submission,

took up a position which was similarly described by

Mr Justice Phillips, the trial judge in the first

instance, where the plaintiff received a jury

verdict which was the subject of appeal and which,

by reason of the application of section 135,

restricted the outcome of the appeal, his damages

to the statutory limit of $140,000 compared to what

he obtained by reason of the ruling of include in his claim the head of damage of pecuniary loss.

We submit that Mr Justice Crockett and Mr

Justice Southwell, in essence, were looking at what

the applicant was working upon rather than how the

injury was caused by the use of the motor vehicle.

It is similar to the fundamental error which was

referred to in Dickinson's case, (1987) 163 CLR 500

at page 505 where the Court adverted to this issue,

namely:

the question is not whether the father's

negligence was in the use of the motor car.

It is whether the appellant's injuries were

caused by or arose out of the use of the motor

car. It is the failure to observe this

distinction which appears to lie behind the

Kennedy 2 7/9/90

decision of the Full Court and the submissions

made on behalf of the respondent.

TOOHEY J:  Mr Keenan, that statement was made having regard

to the language of the insurance statutes.

MR KEENAN:	Yes.
TOOHEY J:	Is the language with which we are concerned here

sufficiently close to warrant the application of

that statement?

MR KEENAN:  We contend so, Your Honour, in that it was a

question, in our submission, as to whether the
injuries sustained by the children in the car arose

out of the use of a motor vehicle in that instance

and we contend here that the issue upon which is

founded the applicant's pecuniary loss damages is a

question of whether or not it arose out of the use

of the paving machine.

TOOHEY J: Yes, I know you say that but is that a submission

or is that the language of the relevant statutory

provision?

MR KEENAN:  Would Your Honour pardon me in this respect, I

have not adverted to that issue, I must say, but we

have with us the Western Australia statute which

deals with that and we would seek to pass copies of

the statute to the Bench suitably flagged as to the

section upon which that is founded.

DAWSON J: Well, there was some difficulty with the wording of the section in Western Australia and in view of

the way in which the case was conducted, the

particular section was given perhaps a more liberal

interpretation than, on the words used, it might

have been warranted but the words were - and they

appear on page 503 of the judgment:

death or bodily injury to any person caused by

or arising out of the use of the -

motor -

vehicle.

MR KEENAN:  Yes, Your Honour.

DAWSON J: What are the words here, the statutory formula

here?

MR KEENAN:	The words here, Your Honour, at the time were words which permitted an exception when - - -
DAWSON J:	What are they?
Kennedy	7/9/90
MR KEENAN:	The words, Your Honour, are:

bodily injury to any person caused by or

arising out of -

TOOHEY J: Could you take us - just direct as to the

relevant statute section?

MR KEENAN:  Yes, Your Honour. Section 40(l)(a),

Your Honour, of the Motor Car Act 1958:

Every owner of a motor car shall subject to

and in accordance with the this Division -

(a) insure against any liability which may be

incurred by him or any person who drives such

motor car in respect of the death of or bodily

injury to any person caused by or arising out

of the use of such motor car.

DAWSON J:  We have the Transport Accident Act, the Accident

Compensation Act and - - -

TOOHEY J:  We do not seem to have the local statute,

Mr Keenan.

MR KEENAN: With the leave of my learned friend,

Your Honour, might I pass up to the Court the Motor

Car Act.

TOOHEY J:  The question in Dickinson was whether the parents

or the parent of the children, the non-driver

parent, having obtained a judgment against the
driver, could then resort to the insurance fund for
the amount of the judgment. Now, that is not quite

the situation here as I understand it.

MR KEENAN:  No, Your Honour, no. The mechanics of that is

different, Your Honour, yes.

DAWSON J: But the crucial words are "caused by or arising

out of the use of a motor car" and motor car's

definition extends to an asphalt layer.

MR KEENAN:  Yes.

DAWSON J: So, that is the - - -

MR KEENAN:	And that is conceded, Your Honour.
TOOHEY J:	I am sorry, I am missing something, Mr Keenan.

What is the statutory provision which precludes the applicant in this case from recovering a head of

damage to which you would otherwise have been

entitled at common law?

Kennedy 4 7/9/90

MR KEENAN: Section 135(1) of the Accident Compensation Act

1985, Your Honour.

McHUGH J: That is set out at page 4 of the application

book.

TOOHEY J: So, I am not sure why we should be concerned with

the Motor Car Act.

MR KEENAN: 

Because it picks up the definition, Your Honour.

At the time that this accident occurred, the
section referred to exceptions which - "proceedings

against an ir:.sured person" .  An "insured person" -

with Your Honours' leave, might I pass up photostat

copies of section 135 as it stood at the time of the hearing of this action. I believe that that

has been material passed to Your Honours, that is,
section 135, Act No 10191, Accident Compensation

Act 1985.  As it then stood, Your Honours, it was

section 135(1):

A worker who is or the dependants of a worker
who are or may be entitled to compensation in

respect of an injury arising out of or in the

course of employment shall not, in proceedings

in respect of the injury, recover any damages

in respect of pecuniary loss except -

(a) in proceedings against an insured person

or the incorporated nominal defendant -

The "insured person" definition was carried through

in subsection (5) as being:

in relation to proceedings to recover damages,

means a person who is entitled, under a

contract of insurance -

TOOHEY J: Well, there is no argument about that, is there?

MR KEENAN:  No, Your Honour.

DAWSON J: But what is said is that he was not an insured

person because the insurance cover did not extend

to him because the accident did not arise out - - -

MR KEENAN:  Did not arise out of the - yes.

Now, the position we put is this, that the

judgment of Mr Justice Crockett is founded upon

pages 99 and 100 of King's case and the situation

there posed by Mr Justice Menzies.

Mr Justice Crockett, at page 68 of the application

book, first of all, recites the position as he

understands it to be in the State of Victoria from

Hoffman's case and then - there seems to be some

Kennedy 7/9/90

misunderstanding, if Your Honours please. At

page 14 of the application book:

It appears to me that the true analysis

of the events that occurred reveals the

respondent at the relevant time to have been

"working upon" the paver, not "using" it.	The
use of the vehicle was a "merely casual

concomitant, not considered to be, in a

relevant causal sense, a contributory factor."

And His Honour was there quoting from the words of

Mr Justice Windeyer in Green & Lloyd.

there must be a causal connection between the

use of the vehicle and the injury is well

established.

To achieve that position, we submit, His Honour

would have had to have got to the stage that the actual use of the paver, that is with the engine

running, the sprockets and chains moving, to

facilitate the greasing of the vehicle, that that

must be classified as being a merely casual

concomitant not considered to be in a relevant

causal sense a contributory factor when the reality

is that it were those chains, moving in that

fashion, which took off the plaintiff's left hand.

TOOHEY J: Mr Keenan, are you saying that

Mr Justice Crockett applied the wrong test or that

he applied the right test but applied it wrongly?

MR KEENAN:  We are saying, Your Honour, that he has looked

at King's case, looked at the way that it is dealt

with there, and has applied King's case quite

wrongly and has ignored the position that we say

pertains here, that you look at whether the

injuries arose out of the use of the vehicle rather

than what the plaintiff was doing.

DAWSON J: But you do not question the test in King's case,

MR KEENAN: Well, Your Honours, we question the application do you? of the test.

DAWSON J: Yes, I understand that. But you do not say it is

an inappropriate test when it is properly applied?

MR KEENAN:	When properly applied, yes.
DAWSON J:	Well then, where is the question of law that is

involved? It becomes just a question of fact, does

it not?

Kennedy 6 7/9/90

MR KEENAN: Well, Your Honour, we say that it is so

manifestly wrong in the interpretative approach of

these facts within the confines of what the High

Court has laid down, namely, that in the use of the

interpretative material, that is, by way of taking

broad and practical considerations, avoiding

subtleties and avoiding a narrow interpretation,

that Their Honours have abandoned that criteria of

interpretation and have in the converse, as

described by Mr Justice Murphy in the dissenting

judgment, engaged in subtleties and have not

applied broad and practical considerations. Those

are the issues which we say are raised by these two

judgments, that it is, basically, an approach or an

interpretative approach which is, we say, wrong

because there has been a concentration upon what

the plaintiff was said to be doing and the

classification of that rather than looking at how

it was that the injury was incurred; whether it was

incurred by the use of this vehicle.

We say the greasing of the vehicle by the

plaintiff and the use of the vehicle in motion to

facilitate the spread of the grease around the

joints was, indeed, a normal use of the vehicle, to

capture the words of Mr Justice Windeyer in Green &

Lloyd's case and that the greasing was incidental

to the normal use of the vehicle.

Now, that is far removed, in our submission,

from the approach taken by Mr Justice Crockett and

Mr Justice Southwell. Mr Justice Southwell looks

at it along the lines of whether one repairs a golf

club, what is one doing. The real issue in the

West Australian case is whether it arose out of the use of the vehicle and to that extent we say that the interpretation is completely misplaced and we

contend that Mr Justice Murphy's approach is the

one which has been sanctioned and followed by other

judges and is in line with the criteria laid down

by the High Court.

the Victorian Accident Compensation Act still have	importance because the Victorian Transport Act and Now, we say it is a matter of some particular
those very words throughout the Acts and we have
the Acts available to the Court with a flagging and a highlighting of where the phrase occurs in both of those Acts in Victoria, in the Transport Accident Act, on a frequent basis.

The words themselves are still the vehicle of

a lot of compensation, as to whether it was caused

by or arose out of the use of a motor vehicle.

TOOHEY J:  Well, that is, no doubt, true. On the other

hand there have been a number of decisions of this

Kennedy 7 7/9/90

Court in the last few years dealing with that sort
of language and are we being invited to do any more

by this application than to apply the principles
that have been established through those decisions

to the facts of this particular case?

MR KEENAN:  We cannot ask you to do any more than that,

Your Honour, but we do ask the Court to do that

because in the practice, that is at the grass roots

of practice in the law of this State, we have two

senior judges following one line of interpretation

and another senior judge, and a highly respected

judge, Mr Justice Phillips, in a sharply divided

situation. The actual use of these decisions

therefore, in practice in this State, is

complicated by the fact that there are, in a sense,

two judges on either side of the interpretative

fence of this important - - -

TOOHEY J: But I think you will always get that, will you

not, in relation to this sort of case, that the

line is often a fairly fine one and it is easy to

understand how one judge may take one view of it

and another may take a different view? And I do

not know that the principles can be refined any

further so that they are going to dictate what the

outcome of the case or any particular case is going

to be in the future.

MR KEENAN:  We have to recognize that situation,

Your Honour, but we seek special leave to appeal to

be able to have a definitive ruling in relation to

the position as it stands in the State of Victoria

at this moment and that brings us to this Court

seeking special leave to appeal to do so.

Now, it has complications not just for

Victoria but the actual phrase is in use in

Tasmanian statutes, was in use in the West

Australian Act until 1987 so that there would be a

run-off, so to speak, of ca~es which may be said to

depend upon that phrase in that State, as well, we

contend, of the importance of it in the State of

Victoria.

Those are the matters which we seek to put to

Your Honours in relation to why this should be a

matter of special leave. We contend also that, as

a matter of factual interpretation, the majority

judgment was clearly wrong. We contend that the

journey from the workshop out around the yard to

test drive it was at that stage a use of the

vehicle. When it stopped and it was subjected to

the greasing, it was an action or operation which

was incidental to its normal use and it was - the

evidence, that it was then going to be driven out

from the workshop to the street, in our submission,

Kennedy 7/9/90

should only bear the interpretation that this was a

continuation of the actual journey and its use.

In the face of that, we submit that the

majority judgments have misinterpreted themselves

in a manifestly wrong way and we submit - we ask

the Court to give special leave so that (a), a

definitive ruling on the matter may be once again

applied to this State. It is some three years

since the West Australian case of Dickinson was

before the Court and we would submit that this is

an appropriate time interval for the profession to

be reminded as to what the criteria and means of

interpretation of this important phrase ought to

be.

DAWSON J: Thank you, Mr Keenan. We need not trouble you,

Mr Gillard.

The principles to be applied in determining the question which arises in this case are laid

down in a number of decisions of this Court.	The
applicant does not seek to re-examine those

principles but to contest the decision below by

reference to the particular facts of this case. It

would therefore be inappropriate to grant special

leave. Special leave will be refused.

MR GILLARD:	I ask for costs, Your Honour?
DAWSON J:	Mr Keenan?

MR KEENAN: I have nothing to say.

DAWSON J: With costs.

AT 12.50 PM THE MATTER WAS ADJOURNED SINE DIE

Kennedy 9 7/9/90