Lowe v RG & KM Whitehead Pty Limited

[2013] HCATrans 286

[2013] HCATrans 286

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S106 of 2013

B e t w e e n -

ANTHONY LOWE

Applicant

and

RG & KM WHITEHEAD PTY LIMITED ABN 94105132410

Respondent

Application for special leave to appeal

HAYNE J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 NOVEMBER 2013, AT 1.31 PM

Copyright in the High Court of Australia

MR P.M. MORRIS, SC:   I appear with my learned friend MR R.I. HARRINGTON for the applicant, may it please the Court.  (instructed by Stacks ‑ The Law Firm).

MR S. KENNEDY:   Your Honours, I appear for the respondent.  (instructed by TurksLegal).

HAYNE J:   Yes, Mr Morris.

MR MORRIS:   Your Honours, the issue in this matter is how to distinguish between the operation and driving when considering the actions of a driver of a multifunction vehicle and, indeed, whether such a distinction should be made.

HAYNE J:   At the risk of saying something I have been heard to say earlier today, is not this ultimately a question of fact?

MR MORRIS:   No, with respect, your Honour, it is all about the definition of “driving” and whether the Court should be entertaining an application which involves considering how one defines driving.  It has been a problem for courts at first instance and intermediate appellate courts and it is not just a question of a factual finding, it is a question of how you approach the determination. 

In the scope of industrial vehicles and commercial vehicles, there are multifunction, some of which involve movement of the vehicle and some of which do not involve movement of the vehicle.  If movement of the vehicle is to be the determinant of whether or not a vehicle is being driven, then that should be squarely said because it will guide people as to how to determine these issues which have caused some difficulty.

GAGELER J:   Now, Mr Morris, was it not squarely said in the South Australian Full Court of the Supreme Court in 1997?

MR MORRIS:   Well, your Honour, that was a split decision where the majority felt that the movement of one part of the vehicle, not involving the movement of the vehicle as a whole, did not constitute the driving of the vehicle.  The minority decision, Justice Bleby, was to the effect that breaking up the movements of a vehicle into its minor component parts was not the way to approach this issue.  The way to approach this issue was to look at what was being done by the operator of the vehicle.

Ultimately, your Honours, the plaintiff in the court below was poorly served, we would submit, by the Court of Appeal because the very issue that we propose, which is that the determinant of whether a vehicle is being driven or not is whether an intentional act causes that vehicle to move, was not dealt with in the court below.  What was dealt with was an assumption that the vehicle was stationary and a further assumption that the way this vehicle operated on its pivot point in the middle, if you move the vehicle to its sideways, that was not a movement of the vehicle.

If I can just distil what is the essence of the complaint of the plaintiff about what happened in the court below.  At the trial the judge delivered a judgment which was indistinct and not clear and in some ways that may make this, to your Honours’ views, a vehicle that is not appropriate except that what the Court of Appeal did was ignore what the trial judge manifestly said which was this vehicle was moving at all material times when an activity was being carried out and determined that it was not being moved. 

It determined that it was not being moved because a submission was wrongly attributed to me that the vehicle was stationary and that what we were talking about was the lifting of tines.  What the court should have done in the court below, we would submit, is approach this case on the basis that even on the finding they made, which is erroneous because it is too limited, we would submit, but even on that finding, the vehicle moved and it moved as a result of an intentional act. 

Now what is proposed by the Court of Appeal below is that the distinction should be locomotion or intended or actual locomotion.  That should be the determinant of whether a motor vehicle is being driven and that sits uncomfortably with the range of possible movements and combination of movements that are commonly used in industry and commercial activity.

GAGELER J:   But it sits with the South Australian majority decision.

MR MORRIS:   It does, if all that is being moved is the elevation of the tines, and that was not what the Court of Appeal found in the court below.  They found that the front of the vehicle moved and the reason the front of the vehicle moved was that it was a front‑end loader that did not have its bucket.  It had tines.  The way the tines move is laterally and forward and back, solely as a result of the movement of the vehicle.  There was no lever in this vehicle that allowed tines to go sideways or that allowed tines to go forward and back.  To move the tines forward and back, you had to move the vehicle.  To move the tines sideways, you had to move the vehicle. 

What the court said in the court below was, on their finding of the facts, the front of the vehicle moved sideways as a result of the turning of the steering wheel by the principal of the defendant, Mr Whitehead.  He intentionally turned the steering wheel.  That intentionally moved the vehicle.  Now, if it were squarely put that the driver of a vehicle with the motor running turns his wheel and the vehicle moves sideways causing an injury, if that is squarely put, then the answer must be, in our submission, that the vehicle is being driven because an intentional act is causing the vehicle to move. 

There is no doubt that this was a use or operation of the vehicle; the court below found that.  There is no doubt that the intentional movement caused the chute to discharge from the shaft which was the cause of the injury.  There is no doubt about those matters.  The issue is whether that intentional movement of the vehicle, causing the separation, was driving and the answer, we submit, is simple.  It is driving because it is an intentional act that causes the vehicle to move.

Now, your Honours, we used as an example in our submissions in reply the situation involved in starting a manual vehicle in gear.  On the approach taken in the court below the intended passage of the vehicle is somehow relevant to the concept of whether something is being driven or not driven.  So that if a driver got into his manual vehicle, turned it on, not realising he had left it in gear and a pedestrian standing in front of the vehicle was struck, that is driving the vehicle because he intended to drive, according to the approach taken in the court below.  If this occurs in a mechanics workshop, and the mechanic turns the vehicle on, it lurches forward and strikes somebody that is not driving because the intention was not to drive the vehicle. 

Now, the dictionary definition would seem to us to require some movement of the vehicle as the result of an intentional act so that you would expect, and I should emphasise, as your Honours probably know, that the Motor Accidents Compensation Act does not define driving and the last time this case was before the High Court, under very different circumstances, some 10 years ago, Justice McHugh went to the dictionary definition as the foundation for the way he was to define driving.

What the dictionary definition refers to is the operating and directing or controlling the course of a vehicle and this suggests clearly an activity associated with the movement or the arresting of the movement of the vehicle is necessary.  But the dictionary definition does not suggest that it is appropriate to attach significance to the purpose for which the vehicle may be stopped or started or the intentions of the particular driver.  What you need is an act that causes the movement of the vehicle. 

Now, it is evident from the evidence in the court below that the vehicle must have been moving in one fashion or another.  At one point in submissions, and these are reproduced in the application book, in pressing the applicant’s primary position, it was put that the trial judge had pointed to the amount of movement of the vehicle necessary to achieve what was being achieved, that is, to achieve a completely vertical location of the chute over the shaft and it was put that the driver was moving the vehicle forwards and backwards and sideways.  Justice Tobias, and this appears at 103 in the application book, debated the point with the observation and this appears at the top of the page:

He could move the tines forwards and backwards without moving the vehicle itself because of the hydraulic arm that goes forwards and back so the impression I get, Mr Morris, is that that’s what was being jiggled.

That was an error.  The evidence was clear from the cross‑examination of Mr Whitehead that the joystick did not do any such thing, that the vehicle had to be moving forwards and backwards so that when that error is taken into account with the manifest error of attributing a submission to us effectively that the vehicle was stationary and the tines were going up and down, it is clear that the court did not address what we put as the fundamental issue in the case and the issue for determination by the High Court which is the issue of how you interpret driving in a situation where there is an industrial vehicle and it is being moved intentionally and that movement causes injury.

GAGELER J:   So we are to infer error from something said in argument?

MR MORRIS:   Your Honour, it is put in our submissions and not challenged in the submissions in reply.  We put this as the case that was put and it is not challenged that this is how the vehicle operated.

GAGELER J:   But you say that there is error to be found in the statement of Justice Tobias in the course of your argument.  Did you disabuse him of that error at the time?

MR MORRIS:   Your Honour, it is not evident from the – I do not know, I probably did not, your Honour.  It was probably lost in the force of the argument that was put.  It is not referred to in the judgment.  The only point is to say that consistent with the error Justice Tobias made in attributing a submission or concession we are supposed to have made, there seems to have been errors on other account in just rewriting the judgment because the judgment of the trial judge, if it is clear to any degree, it is clear to the degree that the trial judge’s view was that all aspects allowing manoeuvrability of the vehicle were taken into account, were being used in order to achieve what the driver was trying to achieve. 

Your Honour, the special leave point is how to deal with the definition of “driving” in circumstances where primary courts and intermediate courts are looking at the intention behind the act or the notion

of the characterisation of the act, that is, characterising it as industrial rather than transportational or travelling, how to deal with that and our primary submission is that the way to deal with it is to accept that what the dictionary definition requires is that there be a movement of the vehicle, the result of an intentional act, and that is all it requires.

If you go into other areas, areas of intent, areas of characterisation of the activity, you lead yourself into error and into the prospect for anomalous results and inconsistent result because they are going to be based on perceptions of what the driver’s intention is or characterisations of what the activity is.  To drive, you cause a vehicle move.  That is all you need to do.  That is what, on the judgment of the Court of Appeal below, happened in this case.  Whitehead caused the front of the vehicle to move sideways.  When the vehicle moved sideways, it was holding a weight on a chain.  That movement sideways caused the disconnection of the chute from the shaft and resulted in the injury to the plaintiff. 

The only additional matter that needed to be proved was that the injury occurred during the driving.  If we establish that it was caused by the driving, as we submit we have, by establishing that the vehicle moved, then the rest falls away because, as your Honours will see from the reproduction of the statute, there is an alternative to the injury being suffered during, and that is that the injury is suffered during a dangerous situation created by the act. 

So all we need to establish – it has to be one or the other, it is either during the driving or during the dangerous situation created by the driving.  It is clearly a dangerous situation if the chute swings free next to the pedestrian.  If we establish that driving caused the separation of the chute, we should have been successful in the Court of Appeal.  The Court of Appeal seems to have said that that is what we did.  We established that the turning of the steering wheel in this vehicle caused the separation of the chute.  That should have resulted in success for the applicant and it did not.

That is the nub of the complaint but it is also the basis of the special leave application because driving requires a clear statement as to its constituents and without it, these kinds of problems will continue.  May it please the Court.

HAYNE J:   Thank you very much, Mr Morris.  We will not call on you, Mr Kennedy.

We are not persuaded that an appeal to this Court would enjoy sufficient prospects of success to warrant a grant of special leave to appeal.  Special leave is refused with costs.

Adjourn the Court to 10.15 on Tuesday, 26 November in Canberra.

AT 1.46 PM THE MATTER WAS CONCLUDED