Maitland-Smith v Path Transit Pty Ltd
[2006] WADC 188
•28 NOVEMBER 2006
MAITLAND-SMITH -v- PATH TRANSIT PTY LTD & ANOR [2006] WADC 188
| Link to Appeal : | [2009] WASCA 47 [2009] WASCA 46 [2009] WASCA 46(S) |
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WADC 188 | |
| Case No: | CIV:137/2003 | 28-31 AUGUST 2006 | |
| Coram: | MARTINO DCJ | 28/11/06 | |
| PERTH | |||
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's claim dismissed | ||
| PDF Version |
| Parties: | JOHN FREDERICK MAITLAND-SMITH PATH TRANSIT PTY LTD INSURANCE COMMISSION OF WESTERN AUSTRALIA |
Catchwords: | Torts Negligence Employer and employee Insurance Motor vehicles Third Party Insurance |
Legislation: | Motor Vehicle (Third Party Insurance) Act 1943 |
Case References: | Duyvelshaff v Cathcart & Ritchie Ltd (1973) 1 ALR 125; 47 ALJR 410 Garrett v Nicholson (1999) 21 WAR 226 Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89 Sykes v Jones (2003) 40 MVR 170 Turner v State of South Australia (1982) 42 ALR 669 Vozza v Tooth & Co Ltd (1964) 112 CLR 316 Bowen v Tutte (1990) A Tort Rep 81-043 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Eaves v Huon Valley Council [1998] TASSC 66 Franklin v Victorian Railways Commissioners (1959) 101 CLR 197 Harrison v South Clifton Coal Mining Co Ltd (1963) SR (NSW) 689 Motor Vehicle Insurance Trust v Scarborough Bus Service Pty Ltd (in liq) [1968] WAR 10 New South Wales v Lepore (2003) HCA 4 Piening v Wanless (1968) 117 CLR 498 Rae v Broken Hill Proprietary Co Ltd (1957) 97 CLR 419 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 State Government Insurance Commission v CSR Ltd (1999) WASCA 36 State Government Insurance Commission v Wagner (1993) 62 SASR 175 Thomas v O'Shea (1989) A Tort Rep 80-251 TNT Australia Pty Ltd v Christie & Ors; Crown Equipment Pty Ltd v Christie & Ors; Manpower Service (Aust) Pty Ltd v Christie & Ors [2003] NSWCA 47 Water Board v Moustakos (1988) 180 CLR 491 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
PATH TRANSIT PTY LTD
Defendant
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Third Party
Catchwords:
Torts - Negligence - Employer and employee
Insurance - Motor vehicles - Third Party Insurance
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943
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Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff : Mr K J Bradford
Defendant : Mr J G Staude
Third Party : Mr J P Olivier
Solicitors:
Plaintiff : Bradford & Co
Defendant : Cahill Billington
Third Party : Talbot & Olivier
Case(s) referred to in judgment(s):
Duyvelshaff v Cathcart & Ritchie Ltd (1973) 1 ALR 125; 47 ALJR 410
Garrett v Nicholson (1999) 21 WAR 226
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89
Sykes v Jones (2003) 40 MVR 170
Turner v State of South Australia (1982) 42 ALR 669
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Case(s) also cited:
Bowen v Tutte (1990) A Tort Rep 81-043
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Eaves v Huon Valley Council [1998] TASSC 66
Franklin v Victorian Railways Commissioners (1959) 101 CLR 197
Harrison v South Clifton Coal Mining Co Ltd (1963) SR (NSW) 689
Motor Vehicle Insurance Trust v Scarborough Bus Service Pty Ltd (in liq) [1968] WAR 10
New South Wales v Lepore (2003) HCA 4
Piening v Wanless (1968) 117 CLR 498
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Rae v Broken Hill Proprietary Co Ltd (1957) 97 CLR 419
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121
State Government Insurance Commission v CSR Ltd (1999) WASCA 36
State Government Insurance Commission v Wagner (1993) 62 SASR 175
Thomas v O'Shea (1989) A Tort Rep 80-251
TNT Australia Pty Ltd v Christie & Ors; Crown Equipment Pty Ltd v Christie & Ors; Manpower Service (Aust) Pty Ltd v Christie & Ors [2003] NSWCA 47
Water Board v Moustakos (1988) 180 CLR 491
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1 MARTINO DCJ: In 2000 the plaintiff, Mr Maitland-Smith, was a bus driver employed by the defendant, Path Transit, which carries on business as a public transport bus operator in Perth.
2 On 20 May 2000 and on 7 October 2000 Mr Maitland-Smith was driving buses in the course of that employment. By his statement of claim he claims that on two occasions on 20 May 2000 the rear seat height adjustment mechanism of the driver's seat collapsed and that on one occasion on 7 October 2000 the driver's seat collapsed beneath him, that those accidents caused him to suffer injury and that his injuries were caused by Path Transit's negligence. In this action he claims from Path Transit damages for those injuries.
3 Path Transit denies liability to Mr Maitland-Smith. It claims from the third party, ICWA, indemnity for any liability it has to Mr Maitland-Smith. Path Transit's claim is that ICWA was insurer of the buses driven by Mr Maitland-Smith and that it is entitled to indemnity under insurance policies issued in accordance with the Motor Vehicle (Third Party Insurance) Act 1943. ("the Motor Vehicle Act")
4 ICWA denies that it is obliged to indemnify Path Transit and also contends that if it were obliged to do so it has a counterclaim against Path Transit equal to the amount of its liability to indemnify that company because the buses were being driven in an unsafe or damaged condition. ICWA claims that Path Transit was thereby in breach of warranty (b) contained in the policies.
Mr Maitland-Smith
5 Mr Maitland-Smith was born in Western Australia on 20 August 1943. He was educated in Western Australia and left school at the age of 14. He worked for approximately two years as a shop assistant. He was aged approximately 16 when he commenced employment as a trainee engine man with Western Australian Government Railways.
6 When he was aged approximately 22 years of age Mr Maitland-Smith obtained a licence to drive buses and obtained employment with the MTT as a bus driver. After a period in that employment, he worked as a driver of tourist buses and then returned to the MTT as a bus driver for a short period.
7 He then obtained employment servicing machinery in the mining industry. He is not qualified as a mechanic. He was employed in the mining industry for approximately 30 years and then obtained
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- employment servicing trucks. As a result of an injury to his left wrist he is no longer able to service machinery.
8 He has adult children from his first marriage and two children from his present marriage, a daughter born in December 1991 and a son born in July 1997.
9 Mr Maitland-Smith commenced working for Path Transit on 7 June 1998. Prior to commencing that employment Path Transit arranged for Mr Maitland-Smith to be examined by a medical practitioner. The medical report prepared by that practitioner recorded that Mr Maitland-Smith's weight was 125 kilograms.
10 Mr Maitland-Smith's evidence was that he has always been a large person. He has endeavoured to control his weight to the best of his ability. His weight seems to settle around 125 kilograms. Sometimes it might go above 130 kilograms. If it does he makes a conscious effort to get it down. Sometimes he gets his weight under 120 kilograms, but as soon as he goes off a diet his weight goes back up again. I accept Mr Maitland-Smith's evidence as to his weight.
The buses that Mr Maitland- Smith was driving
11 On 20 May 2000 Mr Maitland-Smith was driving bus number 1038. On 7 October 2000 he was driving bus number 1048. Path Transit, or its business predecessor, commenced operating buses routes in Perth in 1996. It leases from the Minister responsible for the Department of Planning and Infrastructure the buses it uses to operate the routes. Path Transit is responsible for the maintenance of the buses. Both buses 1038 and 1048 were being driven on metropolitan bus routes before they were first leased by Path Transit's business predecessor in January 1999. Bus 1038 had been acquired by the Minister in 1989 and bus 1048 had been acquired in 1990.
The types of drivers' chairs on Path Transit buses
12 There was a dispute as to the type of chair on which Mr Maitland-Smith was sitting when he was driving buses on 20 May and 7 October 2000.
13 Mr Maitland-Smith's evidence was that there were three types of bus driver's chair on buses at Path Transit.
14 Below one type a vertical cylinder was fixed to the bus. Another cylinder was attached to the chair. The cylinder attached to the chair
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- fitted inside the cylinder fixed to the bus. The height of the chair could be adjusted by raising or lowering the chair and placing a pin in holes in the cylinders when the seat was at the correct height.
15 The angle of the seat on the chair could also be adjusted. The chair had a lever at the front of the seat and a lever at the back of the seat. The angle of the chair was adjusted by lifting a lever, adjusting the angle of the seat and then letting go of the lever. It was Mr Maitland-Smith's practice to adjust the seat so that the back of the seat was raised and the front of the seat lowered, resulting in the seat of the chair being tilted forward.
16 That type of chair did not have any adjustments that could be made for the weight of the driver. Another type of chair could be adjusted to a weight of 120 kilograms and the newest type of chair could be adjusted to 130 kilograms.
17 Prior to commencing to drive buses in his employment at Path Transit Mr Maitland-Smith went on a training course. His evidence was that in that training course he was shown the three types of bus driver's chairs and how to adjust them for his comfort.
18 Mr Maitland-Smith's evidence was that the seats on the buses he was driving on 20 May and 7 October 2000 were the type which had a cylinder attached to the chair which fitted inside a cylinder fixed to the bus.
19 Mr Maitland-Smith inspected the buses he had been driving on 20 May and 7 October 2000 approximately twelve months before the trial before me. His evidence was that the driver's chairs in the buses at the time of that inspection were not the same chairs as had been on the buses in 2000. He described the chairs at the time of his inspection before trial as being the newer type which can be adjusted up and are a lot smoother. Mr Maitland-Smith's evidence was that photographs of buses 1038 and 1048 produced by Path Transit (Exhibit 4) show the buses with chairs as they were at the time of his inspection, not as they were in 2000. Counsel for Path Transit informed me that those photographs were taken in October 2004.
20 Mr Graeme Alfred Weeks is Path Transit's Fleet Manager. He has worked for Path Transit, initially as maintenance manager, since it commenced operating bus routes in Perth in 1996. Prior to his employment with Path Transit Mr Weeks had similar employment with
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- Metro Bus and Transperth when metropolitan bus routes were operated by the State Government.
21 Mr Weeks' evidence was that all of the buses that Path Transit operated were fitted with Bremshey Grammer drivers' chairs. They have a scissor action in the pedestal which provides dampening of the impact of the weight of the driver and the impact of the bus travelling along surfaces. The chair also has a hydraulic damper which is mounted in the centre of the seat. Around that hydraulic damper there is a coiled spring that is designed to take the weight of the driver once the driver has correctly adjusted the chair.
22 When Path Transit commenced operating bus routes in Perth in 1996 there were four versions of Bremshey Grammer drivers' chairs in the buses. They were called Bremshey Grammer 416 Mark 1, 416 Mark 2, 416 Mark 3 and 416 Mark 4. Later a fifth version came into buses operated by Path Transit. It was called a Bremshey Grammer 416E. There were only minor differences between each of the five chairs. In the period from 1998 to 2000 inclusive no driver's chairs on Path Transit buses had other than scissor type pedestals.
23 Each of the chairs could be adjusted for the weight of the driver. The range of weights for which adjustment could be made was from 60 kilograms to 130 kilograms.
24 Mr Weeks' evidence was that the driver's chair photographed in bus 1038 in exhibit 4 is an early model Bremshey Grammer seat, Mark 1 or Mark 2 and the driver's seat photographed in bus 1048 is a later model Bremshey Grammer seat, Mark 4.
25 Mr Weeks was familiar with the type of chair described by Mr Maitland-Smith with a cylinder attached to the chair which fitted inside a cylinder fixed to the bus. His evidence was that it was a type of chair manufactured in around 1964. He has not seen such a chair for over ten years and one has never been in a bus in Path Transit's fleet.
26 Mr Paul Clarke is a workplace trainer and assessor employed by Path Transit who trains bus drivers employed by it. Like Mr Weeks, Mr Clarke has been employed by Path Transit since it commenced operating in the Perth metropolitan area. Mr Clarke's evidence was that as far as he was aware Bremshey chairs were the drivers' chairs in Path Transit's buses in 1998.
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27 Mr Clarke was a trainer, not a person responsible for buses, and the fact that he was not aware of other chairs being on buses is not of great weight on the issue. I would not reject Mr Maitland-Smith's evidence solely on the basis of Mr Clarke's evidence. However, Mr Clarke's evidence is not irrelevant, having regard to Mr Maitland-Smith's evidence that in the training course he attended he was shown three types of bus driver's chairs and how to adjust them for his comfort. Mr Clarke and Mr Maitland-Smith cannot both be correct in their evidence.
28 I accept Mr Weeks' evidence as to the type of chairs on Path Transit buses. He is fleet manager and was previously the maintenance manager and I accept that his knowledge of his fleet is likely to be accurate. It is my view that Mr Maitland-Smith is mistaken in his recollection of the type of chairs on Path Transit buses and that his recollection is confused with chairs on buses he drove when he was a bus driver before he was employed by Path Transit.
29 In reaching that conclusion I take judicial notice of the facts that prior to Path Transit and other private companies providing Perth metropolitan bus transport services those services were provided by a State Government body which was at times known as the MTT, Metrobus and Transperth. Many of the buses used by the State Government body have been used by Path Transit and the other private companies and the buses have substantially the same interior and exterior paintwork and appearance.
Mr Maitland-Smith's evidence of accidents
30 Mr Maitland-Smith's evidence was that the first accident occurred at approximately 9 am on Saturday 20 May 2000 as he was driving in Richard Street in the Bayswater area. As he approached a road into which he was to turn left the rear of the seat collapsed.
31 The part of the chair that collapsed was the seat on which he was sitting. Immediately before he commenced driving the bus he had adjusted the seat by raising the rear so that the seat tilted forward. By the seat collapsing Mr Maitland-Smith meant that the rear of the seat suddenly fell down so that it was no longer raised. He estimated that it fell approximately 10 to 12 centimetres, which was the height that the rear of the seat could be raised and had been raised by him.
32 As a result of that occurring Mr Maitland-Smith momentarily lost control of the bus which bounced off a kerb. He regained control of the bus. He then reset the seat. He checked the seat but could not see any
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- sign of failure. Mr Maitland-Smith called radio control and told the controller what had occurred and that the one passenger on the bus said that she was okay.
33 After this incident Mr Maitland-Smith felt soreness in his backside and lower back which he attributed to the shock of the incident. He kept driving the bus.
34 At approximately 11.30 am on the same day he was driving the same bus on Marangaroo Drive when the seat collapsed again in the same way that it had collapsed on the first occasion. Mr Maitland-Smith again lost control of the bus. On this occasion it bounced over the kerb onto the verge. Mr Maitland-Smith was thrown off the seat. The bus came to a rest in sand on the verge. On this occasion there were no passengers in the bus.
35 Mr Maitland-Smith again called radio control and told the controller what had occurred. The depot sent out another bus. Mr Maitland-Smith drove that bus and another driver drove bus number 1038 away.
36 Mr Maitland-Smith completed his shift that day. At the end of the shift he felt very sore. When he arrived home he took non-prescription pain killers, had a shower and went to bed. The next day he was very stiff and sore in his lower back and his coccyx. He saw Dr Barrie, a medical practitioner, on that day.
37 Dr J Di Camillo was Mr Maitland-Smith's usual medical practitioner and he later took over his care. Mr Maitland-Smith was unable to work following the accident.
38 On 22 May 2000 Mr Maitland-Smith provided to Path Transit a completed workers' compensation accident report form. In that report he reported that there had been two incidents on 20 May 2000, one at 9 am on Richards Road, Bayswater and the other at 11.30 am on Marangaroo Drive. He described each incident as the height adjustment on the driver's seat collapsing at the rear of the seat.
39 In July 2000 Mr Maitland-Smith commenced to return to work. He was working full time in October 2000. On 7 October 2000 he was driving bus number 1048. Mr Maitland-Smith's evidence was that the bus had the same type of seat as bus number 1038 had when he was driving it on 20 May 2000.
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40 He was on his last run for the day, at approximately 7.30 pm. He had just turned into Crowther Street when the rear of the seat had collapsed in the same way as the seat on bus number 1038 had collapsed on 20 May 2000. On this occasion Mr Maitland-Smith was able to bring the bus to a stop.
41 Mr Maitland-Smith called radio control and because he was in so much pain he asked for relief driver.
42 On 14 October 2000 Mr Maitland-Smith provided to Path Transit a completed workers' compensation accident report form on the incident of 7 October 2000. In that report he described the incident as the driver's seat collapsing.
Path Transit's records of Mr Maitland-Smith's reports of accidents
43 Path Transit has a log book for incidents in which employees are injured. On 20 May 2000 the log book contains two entries concerning bus 1038. The time of the first entry is not recorded. The entry is:
"Driver J Maitland-Smith reported that the seat of bus 1038 had collapsed and he had jarred his back, he was able to continue but would submit report on return to depot."
44 The second entry concerning Mr Maitland-Smith and bus 1038 on 20 May 2000 is at 1135. It is:
"Driver J Maitland-Smith turning from Marangaroo into Northumberland when seat collapsed & bus ran off road into bushes. Didn't know if he could drive it out. Bus 523 sent to replace. J M-Smith carried on. Bus 1038 return depot."
45 Path Transit also has an entry on a breakdown sheet for bus 1038 on 20 May 2000. That entry is "Driver seat collapsed". It records that a mechanic was not required to attend the breakdown.
46 On 7 October 2000 the log book has the following entry concerning Mr Maitland-Smith and bus 1048 at 1900:
"J M-Smith contacted me stating the seat in the vehicle collapsed and he is hurt.
Does not require an ambulance.
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- Sent A Ricaud & P Carnegie in ute to collect John & complete the trip (43 r @ 1900). Other trip on the shift covered.
On return to depot I took John home."
The tilting mechanism on the drivers' chairs
47 The seat on Bremshey Grammer drivers' chairs can be tilted so that it slopes forward or backwards. There are two springs under the front of the seat and two springs under the back of the seat. A lever operates the springs at the front and another lever operates the springs at the back. Mr Weeks' evidence was that if the springs broke the seat would fall a maximum of approximately 20 to 25 millimetres.
Path Transit's procedure for the maintenance of buses
48 Every bus in Path Transit's fleet is serviced at 15,000 kilometre intervals. The first such service is called an A service, at 30,000 kilometres there is a B service and at 45,000 kilometres a C service. The cycle of services is then repeated, commencing with an A service at 60,000 kilometres.
49 Every year, prior to the renewal of each bus' license, each bus is examined by an officer of the Department of Transport. Prior to each of those examinations Path Transit carries out a pre-licence inspection and service of the bus. This is called a P service.
50 Path Transit's documents and procedures included a requirement for the drivers' chairs to be inspected and checked in every A, B and C service. This requirement is contained in a document which had as its subject heading "Operators Seat Checks", a document prepared by Mr Weeks and updated from time to time. That document provided that the checks were to be made during every A, B and C service and also if a bus was found to have a defect which related to the driver's chair.
Path Transit's procedure for reporting of faults in buses
51 Mr Clarke's evidence was that bus drivers were trained and instructed that if there was a defect in a bus they were to stop the bus and report the defect by radio or telephone.
52 Mr Weeks' evidence was that between services Path Transit relies upon drivers to inform it of anything wrong with a bus. The system in place is that it is the driver's responsibility to report a defect in a bus. If the driver is driving the bus on the road and feels it is unsafe to continue
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- the driver should use the radio to request a change of bus. Once the bus goes to the maintenance department procedures are in place to investigate and repair any defect.
Path Transit's records of repairs to buses following Mr Maitland-Smith's reports
53 Path Transit has no records of any repairs or investigations to the driver's chair on bus 1038.
54 It's Daily Audit Report, which contains records of buses and drivers, records that on 7 October 2000 Mr Maitland-Smith logged off bus 1048 at 19:17 and that Marie Ricaud was logged onto bus 1048 from 19:31 to 20:00. The Historical Defects records of defects for bus 1048 shows no entry for any defects with the driver's chair reported by Mr Maitland-Smith. On 9 October 2000 there is a record that M Ricaud reported "Drivers seat very loose" and that this was fixed by J Alleman, the fix note being "Fitted new spacer". J Alleman was not called to give evidence at the trial. Mr Weeks' evidence was that the spacer referred to four nylon washers under the seat which assisted the chair to slide forward and back.
The weight of other drivers employed by Path Transit
55 Ms Lynette Margaret Lawson is an insurance officer employed by Path Transit. In January 2001 Ms Lawson ascertained that there were three or four three of four people employed by Path Transit whose weight exceeded 130 kilograms. The heaviest of those employees weighed approximately 160 kilograms or more.
56 Ms Lawson was called as a witness by Mr Maitland-Smith's counsel. Although the question she answered when giving evidence about weight concerned employees she had previously been asked about the weight of bus drivers. Counsel for Path Transit then objected and there were submissions concerning the relevance of the weight of other drivers. In that context I understood Ms Lawson's evidence to be that the employees the weight of whom she gave evidence were employed by Path Transit as bus drivers. I accept her evidence.
Adjustment of chairs for the weight of the driver
57 I have expressed earlier in these reasons my conclusion that the chairs on Path Transit's buses at the time of Mr Maitland-Smith's employment were Bremshey Grammer chairs. I accept Mr Weeks'
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- evidence that each of those chairs could be adjusted within the range of 60 kilograms to 130 kilograms for the weight of the driver.
58 If a driver weighs more than the weight to which the chair is adjusted the dampening effect of chair is reduced because there would be too much spring in the base of the seat. If a driver weighs less than the weight to which the chair is adjusted the chair will be too firm.
59 Mr Clarke's evidence, which I accept, was that drivers were trained to adjust the chairs according to their weight.
Mr Weeks evidence as to chairs collapsing
60 Mr Weeks' evidence was that he has never had any experience of Bremshey Grammer chairs collapsing. His evidence is that it is virtually impossible for them to collapse because they are so robust and they have been around for so long. Mr Weeks also produced Path Transit's maintenance records. These records are detailed and do not show that a collapsed chair has ever been repaired on buses 1038 and 1048. Mr Weeks knows of no case where a chair has collapsed.
The absence of evidence
61 Fact finding in this case has been made difficult by the absence of evidence. Path Transit did not call evidence from the person who returned bus 1038 to the depot on 20 May 2000. Nor did Path Transit call evidence from Marie Ricaud who was logged onto bus 1048 from 19:31 to 20:00 on 7 October 2000 and who reported "Drivers seat very loose" on 9 October 2000. Path Transit also did not call evidence from J Alleman who made the fix note "Fitted new spacer" following Ms Ricaud's report.
62 Mr Maitland-Smith did not call any expert or other evidence from a witness who had examined a driver's chair and could explain how a chair could collapse as Mr Maitland-Smith gave evidence did occur.
63 I have Mr Maitland-Smith's evidence that it did occur, evidence which confirms that he did report to Path Transit that his chair collapsed on the three occasions of which he gave evidence and Mr Weeks' evidence that it is virtually impossible.
64 While there is the evidence of Ms Lawson to which I have referred as to the weight of other drivers there is no evidence that their weight, or the weight of Mr Maitland-Smith, caused or contributed to any defect or failure of drivers' chairs. The fact that chairs could be adjusted for the weight of drivers, that Mr Maitland-Smith's evidence was at the top of the
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- adjustment range and at times exceeded it and that some drivers' weight exceeded that range does not provide any basis for concluding that there was a failure of a chair in a bus and driven by Mr Maitland-Smith or that his weight or the weight of other drivers was a factor in any failure.
65 I am not assisted in determining what evidence to accept and what to reject by having seen and heard the witnesses give their evidence. There is a difference in the description of the first two incidents and the third incident in the statement of claim, but there was no such difference in the evidence given by Mr Maitland-Smith. That does not lead me to reject the honesty of Mr Maitland-Smith's evidence. My assessment of all witnesses was that they gave their evidence honestly and to the best of their recollection.
Whether the chairs collapsed
66 As I have noted Path Transit's records show that Mr Maitland-Smith made contemporaneous reports to officers of Path Transit that his chair had collapsed on two occasions on 20 May 2000 and one occasion on 7 October 2000. I conclude from these records that on those days Mr Maitland-Smith believed that his chair had collapsed in the manner of which he has given evidence and that officers of Path Transit were informed that the driver's chairs on those buses had collapsed.
67 Path Transit has no record of the reportedly collapsed chairs being repaired or investigated following Mr Maitland-Smith's reports other than the work done on bus 1048 following M Ricaud's report on 9 October 2000 that the seat was loose.
68 Path Transit's records are extensive and their procedures for the maintenance of buses quite detailed. I have also referred to the evidence of Mr Clarke and Mr Weeks as to Path Transit's procedures for reporting defects in buses. However there appears to be a defect in the records or procedures or both. Although the log books record Mr Maitland-Smith's reports of the chairs collapsing there is no evidence that the reports were ever investigated or that the chairs were inspected, repaired or replaced as a result of those reports.
69 It is unlikely that Mr Maitland-Smith would have believed that the chairs collapsed in the manner of which he gave evidence if it had not occurred. I concluded that immediately prior to the incidents of which he gave evidence the back of the seat was in the raised position. On each occasion of which he gave evidence that his chair collapsed the back of his seat dropped suddenly. I am unable to find precisely how far the seat
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- dropped on each occasion. Both Mr Maitland-Smith's evidence that it was approximately 10 to 12 centimetres and Mr Weeks' evidence that if the springs broke the seat would fall a maximum of approximately 20 to 25 mm were estimates only and were not precise.
70 I accept Mr Maitland-Smith's evidence of the three accidents.
What was done by Path Transit following the incidents
71 I have recorded earlier in these reasons the reports made by Mr Maitland-Smith of the chairs collapsing and the records of other employees of Path Transit attending following the second report on 20 May and the report of 7 October. As I have noted there is no evidence that the chairs were investigated or repaired following any of the incidents.
72 In my view it is unlikely that Path Transit would do nothing to investigate such incidents, which were not only contemporaneously recorded and resulted in attendance by other employees but also resulted in claims for workers' compensation. I am satisfied on the balance of probabilities that following the second incident on 20 May and the incident on 7 October the chairs were inspected. There are two possibilities in relation to each inspection – that the cause of the chairs dropping was identified or it was not. It seems to me more likely than not that the cause was identified. I reach that conclusion because if a mechanical item fails in the manner I have found did occur on each occasion and it is inspected soon after the failure to identify the cause of the failure that cause is more likely than not to be identified. As the cause is likely to have been identified it is more likely than not that something was done to prevent it happening again. The evidence does not permit me to find what was done.
73 In reaching these conclusions in the manner that I am conscious of the need to make findings on the evidence and the need to disclose the intellectual process by which those findings are made: Garrett v Nicholson (1999) 21 WAR 226, Sykes v Jones (2003) 40 MVR 170. I have reached the conclusions I have on the evidence produced at trial.
Whether there were breaches of duty
74 In Turner v State of South Australia (1982) 42 ALR 669 at 670-671 Gibbs CJ expressed the duty owed by an employer to an employee in the following terms:
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- "The duty of an employer is to take reasonable care to avoid exposing his employees to unnecessary risk of injury: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25. The employer is not an insurer of his employees against danger. "For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.": Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319. When the employer does unreasonably fail to take a precaution against danger, the plaintiff cannot succeed unless he satisfies the court that if that precaution had been taken the injury would probably have been averted, or, in other words, that the safety measures would have been effective and that he would have made use of them if available: Duyvelshaff v Cathcart & Ritchie Ltd (1973) 1 ALR 125; 47 ALJR 410 at 416–7, 419.
…
Where it is possible to guard against a foreseeable risk which, although perhaps not great, nevertheless cannot be called remote or fanciful, by adopting a means which involves little difficulty or expense, the failure to adopt such means will in general be negligent."
75 I have not been able to identify the cause of the chairs dropping. There is no evidence that the problem had occurred prior to 20 May 2000. Path Transit had a system in place for the servicing of its chairs and Mr Maitland-Smith has not proved that the system was inadequate or that it should have identified what caused the failures before they occurred. Mr Maitland-Smith has not proved that Path Transit was in breach of its duty of care to him in respect of the first incident of 20 May 2000. On the information available to Path Transit after the first incident in my view it was reasonable to allow Mr Maitland-Smith to continue to drive the bus on that day after first incident. Mr Maitland-Smith's report of the incident did not indicate that it was unsafe for him to continue driving the bus on that day.
76 As Mr Maitland-Smith followed the same procedure in setting up his chair on 7 October 2000 as he had followed on 20 May 2000 and as he
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- experienced the same dropping of his seat on both dates I conclude that the cause of the seat dropping was the same on all three occasions.
77 Following 20 May 2000 employees of Path Transit knew that a chair had dropped suddenly on two occasions causing an injury to a worker. It identified and rectified the problem in bus 1038. There is no evidence that it did anything to inspect any other chairs. Following 20 May 2000 the incident of 7 October 2000 occurred in bus 1048.
78 In my view after 20 May 2000 there would have been little difficulty or expense in adding to the Operator Seat Checks an identification and explanation of the problem that had occurred in bus 1038 and what could be done to prevent it happening. If Path Transit had done so that check could have been done when a bus was being serviced and, if required, the chair could have been attended to so as to prevent it dropping as occurred on 7 October 2000. In failing to do so Path Transit was in breach of its duty of care to Mr Maitland-Smith and that breach caused the injuries suffered by him on 7 October 2000.
Constraints on awards of damages to workers
79 Mr Maitland-Smith and Path Transit agree that Mr Maitland-Smith was employed by Path Transit. The Worker' Compensation and Rehabilitation Act 1981 (as the Workers' Compensation and Injury Management Act 1981 was called in 2000) ("the Workers' Compensation Act")contained constraints on awards of damages for negligence against a worker's employer independently of that Act in respect of a disability suffered by a worker. It was accepted by counsel for Mr Maitland-Smith at trial that if those restrictions did apply then Mr Maitland-Smith would be precluded from recovering damages from Path Transit. He did not seek to establish that if the restrictions applied then Mr Maitland-Smith would be entitled to damages.
80 Those constraints do not apply to the awarding of damages to which the Motor Vehicle Act applies.
81 Mr Maitland-Smith pleads in his statement of claim that the three accidents were caused by the driving of a motor vehicle within the meaning of s 4(1) of the Motor Vehicle Act, that the injuries he suffered were a consequence of the driving of a motor vehicle within the meaning of s 3(7) and that the Motor Vehicle Act applies in respect of those injuries.
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82 For the Motor Vehicle Act to apply to Mr Maitland-Smith's claim for damages it would not be sufficient for his injuries to have been caused by the driving of a motor vehicle. It would be necessary for them to have been directly caused by a motor vehicle or directly caused by the driving of a motor vehicle: Motor Vehicle Act s 4(1), s 6(1)(b), Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89 per McHugh J at [15], Gummow J at [90], Kirby J at [107] and Heydon J at [143]. A bodily injury is not caused by a vehicle if it is not a consequence of the driving of that vehicle or of the vehicle running out of control: s 3(7).
83 Although Insurance Commission of Western Australia v Container Handlers Pty Ltd concerned only the first limb of "directly caused by, or by the driving of, [a] motor vehicle" the word "driving" in the Act was the subject of analysis in some of the judgments. The decision concerned s 3(7) of the Motor Vehicle Act which applies to the first limb and provides that for the purposes of the 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 a consequence of the driving of that vehicle or of the vehicle running out of control." There is nothing in the Motor Vehicle Act to indicate that the word "driving" would have a different meaning in s 3(7) than elsewhere in the Act.
84 McHugh J at [52] noted that the Motor Vehicle Act does not define driving. He said that debate regarding the Motor Vehicle (Third Party Insurance) Amendment Bill 1987 in the Legislative Council indicated that the word was to have its ordinary English meaning. He referred to dictionary definitions which "relevantly define 'drive' as to 'operate and direct the course of' and to 'operate and control the course of' a vehicle respectively." His Honour concluded that when the Motor Vehicle Act refers to the consequence of the driving of a vehicle "it refers to a consequence of the actual operation and control of the direction and speed of the vehicle."
85 Gummow J did not find it necessary to decide the meaning of the word "driving" because he held that s 3(7) does not remove the requirement that the injury be "directly" caused by the driving of a vehicle or a vehicle running out of control. As a result his Honour held that Container Handlers' concession that the plaintiff's injuries were not directly caused by the driving of a vehicle was fatal to its claim for indemnity: [93] and [94].
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86 Callinan J looked at the word 'driving' in its context in s 3(7) and said at [132]:
"The words 'running out of control' clearly refer to and are confined to the notion of a vehicle in motion. The word 'driving' should be read to the same effect. The two phrases in which the words separately occur are plainly related and the word used in the latter, 'running', conveying the idea of motion, strongly suggests that 'driving' in the former is used in the same sense. The structure and language of s 3(7) also lead to the same conclusion."
87 Heydon J, like Gummow J, held that on the true construction of a policy issued by ICWA in the light of s 3(7) it will not indemnify the owner or driver unless the death or injury is directly caused by the driving of the vehicle or its running out of control. His Honour nevertheless did analyse the meaning of the words "the driving" in the context of s 3(7) and concluded that the words "the driving" refer to the actual control and management of the vehicle while it is in locomotion.
"The driving" of a vehicle, in at least its core meaning in this context, is the activity conducted by a human being in the driver's seat who manages and directs the course of its movement by operating the controls – preparing to start, starting, accelerating, braking, steering, giving appropriate signals, operating the horn and lights appropriately, stopping and turning the engine off." [153]
88 Kirby J's reasoning was substantially the same as that of Heydon J: [104].
89 It follows from the reasoning of McHugh, Kirby, Callinan and Heydon JJ that for an owner of a vehicle to be entitled to indemnity from ICWA for liability for injuries the management and direction of the motion of the vehicle must have caused those injuries, or they must have been caused by the vehicle running out of control. For Mr Maitland-Smith to be entitled to an award of damages in respect the accident on 7 October 2000 he must establish that the Motor Vehicle Act applied to the injuries he suffered in the accident. To do so he must establish that the management and direction of the motion of the bus must have caused those injuries, or that they were caused by the bus running out of control.
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90 I have not been able to identify the cause of the chair dropping as it did. I cannot conclude from the evidence that it was caused by the management and direction of the motion of the bus. It could just as easily have occurred if Mr Maitland-Smith was sitting in the chair with the bus stationary and the engine not running. The bus did not run out of control on that occasion. It is my view that the injuries suffered by Mr Maitland-Smith as a result of the accident were not directly caused by a motor vehicle or directly caused by the driving of a motor vehicle.
Conclusion
91 I have concluded that Mr Maitland-Smith has not established that the injuries suffered by him as a result of the two accidents on 20 May 2000 were caused by any breach of duty of care owed by Path Transit to him. The injuries suffered in the accident on 7 October 2000 were caused by a breach of the duty of care owed to him by Path Transit, but Mr Maitland-Smith is precluded from recovering damages by the constraints on awards of damages contained in the Workers' Compensation Act as the Motor Vehicle Act does not apply to the injuries suffered by him. As the Motor Vehicle Act does not apply Path Transit would not be entitled to indemnity from ICWA if it were liable in damages to Mr Maitland-Smith.
92 It is my view that it is not appropriate for me to assess damages. If it were to be established that Mr Maitland-Smith is entitled to recover damages from Path Transit then any assessment of those damages would depend on for which accident or accidents he is entitled to receive damages.
93 If Mr Maitland-Smith had been entitled to an award of damages for the accident on 7 October 2000, Path Transit would not have been entitled to an indemnity from the Insurance Commission of Western Australia because the injuries suffered in that accident were not directly caused by a motor vehicle or directly caused by the driving of a motor vehicle.
94 Even if the accidents were accidents to which the Motor Vehicle Act applied the Insurance Commission of Western Australia would be entitled to a counterclaim for breach of warranty for the full amount of any liability because the bus was being in an unsafe condition - namely, the fault with the chair which I have not been able to identify.
95 I have not found it necessary to reach a conclusion on whether the Motor Vehicle Act applied to the accidents on 20 May 2000 and it is preferable that I do not do so.
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