Maitland-Smith v Path Transit Pty Ltd

[2009] WASCA 46

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   MAITLAND-SMITH -v- PATH TRANSIT PTY LTD [2009] WASCA 46

CORAM:   MARTIN CJ

McLURE JA
LE MIERE AJA

HEARD:   18 AUGUST 2008

DELIVERED          :   4 MARCH 2009

FILE NO/S:   CACV 158 of 2006

BETWEEN:   JOHN FREDERICK MAITLAND-SMITH

Appellant

AND

PATH TRANSIT PTY LTD
First Respondent

INSURANCE COMMISSION OF WESTERN AUSTRALIA
Second Respondent

ON APPEAL FROM:

For File No              :  CACV 158 of 2006

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :MARTINO DCJ

Citation  :MAITLAND-SMITH -v- PATH TRANSIT PTY LTD & ANOR [2006] WADC 188

File No  :CIV 137 of 2003

Catchwords:

Damages - Personal injury - Suffered during course of employment - Negligence - Workers' Compensation and Injury Management Act 1981 (WA) - Motor Vehicle (Third Party Insurance) Act 1943 (WA) - Interpretation of 'directly caused by, or by driving of, [a] motor vehicle' - Interpretation of 'as a consequence of' - Interpretation of 'driving' - Indemnity from Insurance Commission of Western Australia

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3(7), s 4, s 6
Workers' Compensation and Injury Management Act 1981 (WA), s 93B(3)

Result:

Appeal dismissed
Cross-appeal allowed
Notice of contention relating to cross-appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr D R Williams QC & Mr K J Bradford

First Respondent           :     Mr J G Staude

Second Respondent      :     Mr C L Zelestis QC & Mr M D Howard

Solicitors:

Appellant:     Bradford & Co

First Respondent           :     Cahill Billington

Second Respondent      :     Talbot Olivier

Case(s) referred to in judgment(s):

Dickinson v Motor Vehicle Insurance Trust [1987] HCA 49; (1987) 163 CLR 500

Insurance Commission of Western Australia v Container Handlers Pty Ltd [2004] HCA 24; (2004) 218 CLR 89

1. MARTIN CJ: John Frederick Maitland‑Smith appeals from the decision of the trial judge dismissing his claim for damages for personal injuries which he suffered while driving a bus in the course of his employment with Path Transit Pty Ltd (Path). At trial, Mr Maitland‑Smith accepted that his claim for damages would be precluded by Div 2 of Pt IV of the Workers' Compensation and Injury Management Act 1981 (WA), unless it was a claim to which the Motor Vehicle (Third Party Insurance) Act 1943 (WA) (the Motor Vehicle Act) applies (see s 93B(3) of the Workers' Compensation and Injury Management Act).  The trial judge held that Mr Maitland‑Smith's claim is not a claim to which the Motor Vehicle Act applied [91].  Mr Maitland‑Smith's appeal challenges that conclusion.  Path has cross‑appealed from the finding of negligence made by the trial judge.  In response to that cross‑appeal, Mr Maitland‑Smith has filed a notice of contention asserting that the finding of negligence should be upheld on grounds other than those upon which the trial judge relied.

The pleaded case

1. In his statement of claim, Mr Maitland‑Smith alleged that he suffered personal injury as a result of the spontaneous collapse of the driver's seat…