MAIB v Edwards

[1990] TASSC 64

Serial No  62/1990
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              MAIB v Edwards [1990] TASSC 64; (1990) Tas R 248; A62/1990

PARTIES:  MAIB
  v
  EDWARDS, Daphne Grace

FILE NO/S:  LCA 9/1990
DELIVERED ON:  15 October 1990
JUDGMENT OF:  Green CJ

Judgment Number:  A62/1990
Number of paragraphs:  9

Serial No 62/1990
List "A"
File No LCA 9/1990

MAIB v DAPHNE GRACE EDWARDS

REASONS FOR JUDGMENT  GREEN CJ

15 October 1990

1. Pursuant to the Motor Accidents (Liabilities and Compensation) Act 1973 the respondent applied to the appellant for benefits for bodily injury she claimed to have suffered as a result of what she described in her application as a "collision with forklift while climbing stairs". The appellant refused the application on the following grounds which were set out in a letter to the respondent:

"From both the statement made by you and also the statement made by the driver of the forklift, we are of the view that your accident does not fall into the category of being one arising out of the use of a motor vehicle. We note that you appear to have slipped on a step and actually fallen onto the forklift without a collision actually occurring."

1. Pursuant to s28(3) of the Act the appellant referred the Board's refusal to the Motor Accidents Compensation Tribunal. That Tribunal held that the respondent's injuries did arise out of the use of a motor vehicle and that she was entitled to receive benefits pursuant to s23(1)(a) of the Act. This is an appeal against the Tribunal's determination.

1. There is no dispute about the essential facts. The respondent was walking down a flight of five stone steps which led from a doorway onto a laneway connecting Brisbane Street and Yorktown Square in Launceston. At the same time a fork lift truck was being driven along the laneway towards Yorktown Square. Whilst she was on the second step from the top the respondent tripped or lost her footing, fell down the steps and struck the fork lift truck on the wheel and some other part of the truck. The respondent did not come in contact with the laneway but fell directly onto the truck. The truck was in motion immediately before the collision but came to rest virtually simultaneously with or immediately following the collision. The statement in the respondent's application for benefits that the collision occurred whilst she was climbing the steps was a mistake. The respondent suffered bodily injury as a result of the collision.

1. The relevant provisions of the Act read as follows:

"2–(1)  In this Act unless the contrary intention appears

'accident' means an occurrence caused by or arising out of the use of a motor vehicle whereby the death of or bodily injury to any person results;"

"23–(1)   Where—

(a)  a resident of the State dies, or suffers bodily injury, as a result of an accident occurring in the State;

...

there becomes payable by the Board such benefits as are prescribed by the regulations."

1. The substitution of the definition of "accident" in s2(1) for the word "accident" in s23(1)(a) means that s23(1)(a) must be read as providing that benefits are payable where a resident of the state suffers bodily injury as a result of an occurrence caused by or arising out of the use of a motor vehicle whereby bodily injury to any person results. The repetition of the requirement that bodily injury must result from the occurrence is curious but does not in my view add a further element to that which an applicant for benefits must prove. In essence what an applicant must show is that he suffered bodily injury as a result of an occurrence caused by or arising out of the use of a motor vehicle. It is to be noted that it is the occurrence and not the injury which must be shown to have been caused by or to have arisen out of the use of a motor vehicle. What is the scope of an occurrence will vary with the circumstances of each case. In some cases a number of events extending over a period of time such as for example the burning of a motor vehicle could be collectively characterised as an occurrence whilst in other cases a single event such as a collision which occurs in a fraction of a second could be regarded as an occurrence. For present purposes I think that the event which was the immediate cause of the respondent's injury viz. the collision should be regarded as the occurrence. The critical question on this appeal is thus whether the collision can be said to have been caused by or to have arisen out of the use of the fork lift truck.

1. Although most of the authorities seem to be concerned with the issue of whether the injury rather than the occurrence which caused the injury was caused by or arose out of the use of a motor vehicle they nevertheless provide guidance as to the scope and meaning of the expressions "caused by", "arising out of" and "use of a motor vehicle". The High Court observed in State Government Insurance Commission v Stevens Bros Pty Ltd (1984) 154 CLR 552 at 555 that it is futile to strive to enunciate a general proposition the application of which will provide a ready solution to every case. However it has been established that:

"'Use' for the purposes of the Act extends to everything that fairly falls within the conception of the use of a motor vehicle and may include a use which does not involve locomotion"

and that:

"The test posited by the words 'arising out of' is wider than that posited by the words 'caused by' and the former, although it involves some causal or consequential relationship between the use of the vehicle and the injuries, does not require the direct or proximate relationship which would be necessary to conclude that the injuries were caused by the use of the vehicle."

Per Mason CJ and Wilson, Brennan, Dawson and Toohey JJ in Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500 at 505. It follows that the mere demonstration that a motor vehicle was involved in a collision is not sufficient by itself to demonstrate that the collision arose out of the use of that motor vehicle notwithstanding that it could be said that but for the presence of the motor vehicle at that particular point in space and time the collision would not have occurred. It must also be shown that the motor vehicle was being used at the material time for some purpose which fairly falls within the conception of the use of a motor vehicle and that there was some causal or consequential relationship between that use and the collision. However, although some causal or consequential relationship must be shown to exist between the use of the motor vehicle and the occurrence it is not necessary that the use of the motor vehicle be shown to have been the sole or main cause of that occurrence. An occurrence can be said to arise out of the use of a motor vehicle notwithstanding that some other factor also contributed to it. As the Full Court of the Supreme Court of Victoria observed in May v Transport Accident Commission [1989] VR 981 at 987 for a person to be entitled to compensation the incident giving rise to the injury:

"did not need to arise only or even primarily from his use of the car for the purpose of the journey. It is sufficient that that use of the car as a car was a factor which contributed to the incident which produced the injury."

1. Applying the foregoing principles to this case I do not accept the submission made by the appellant that because the collision could be said to have been caused by the fact that the respondent fell down the steps it could not be said to have arisen out of the use of the fork lift. It is correct to say that the collision would not have occurred but for the fact that the respondent fell down the steps. But it is also correct to say that the collision would not have occurred but for the fact that the fork lift truck was following a path which resulted in it and the respondent arriving at the same point in space at the same point in time. It is clear that the fork lift truck was taking that path in the course of it being used as a motor vehicle and that at the moment of the collision it was still being used as a motor vehicle. I am satisfied that at the material time the fork lift truck was being used as a motor vehicle and that there was a sufficiently close causal or consequential relation between that use and the collision to support a conclusion that the collision arose out of the use of the fork lift truck.

1. There is no suggestion that any of the provisions of the Act which are capable of disqualifying applicants from receiving benefits under the Act apply to the respondent. I hold that the respondent suffered bodily injury as a result of an occurrence arising out of the use of a motor vehicle and that the Tribunal did not fall into error in making the determination the subject of this appeal.

1. The appeal is dismissed.