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

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

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 upon which he was sitting, on three separate occasions. The first two occasions were each alleged to have occurred on the morning of 20 May 2000, when he was driving bus number 1038. The third occasion was alleged to have occurred on 7 October 2000 when he was driving bus number 1048. The particulars of negligence alleged in respect of each incident were identical and were in the following terms:
1.causing, allowing or permitting the Plaintiff to drive the bus when the seat was unable to support the weight of the Plaintiff;
2.failing to have any or any adequate system of regular checking, inspection and maintenance of seats in order to ensure that they were safe for a person of the Plaintiff's weight to use;
3.failing to have any or [any] adequate system for repair or replacement of old or worn out seats;
4.failing to replace seats on buses at regular 5 yearly intervals;
5.failing to provide the Plaintiff with a bus seat that was suitable to accommodate the Plaintiff's weight; and
6.in the premises, exposed the Plaintiff to an unsafe system of work.

The decision of the trial judge

The trial judge found that Mr Maitland‑Smith has always been a large person, whose weight generally varied between 120 kg and 130 kg. There was a conflict in the evidence as to the type of driver's seat that was fitted to each of bus number 1038 and bus number 1048. The trial judge resolved that conflict by preferring the evidence given by Mr Weeks, Path's fleet manager [28]. His evidence was to the effect that the driver's seat in bus number 1038 was a Bremshey Grammer seat Mark 1 or Mark 2, and in bus number 1048 was a later model Bremshey Grammer seat Mark 4 [24]. Each of the driver's seats is fully adjustable. The evidence of Mr Maitland‑Smith was to the effect that it was his practice to adjust the driver's seat on each bus he drove at the commencement of his duties by raising the rear of the seat so that the seat tilted forward [15].

The incidents

At approximately 9 am on 20 May 2000, as Mr Maitland‑Smith approached a road into which he was to turn left, the rear of his seat collapsed [30]. He estimated that the seat fell approximately 10 cm to 12 cm [31]. He momentarily lost control of the bus, but quickly regained control and reset the seat [32]. He checked the seat but could not see any sign of failure. He contacted Path's controller by radio and reported what had occurred [32].
On the same day, at approximately 11.30 am, Mr Maitland‑Smith was driving the same bus, when the seat collapsed again in the same way [34]. He again lost control of the bus, as a result of which it left the road and mounted the verge. He again contacted the controller by radio. This time another bus and driver were sent out [35]. He drove that other bus away from the site, and the other driver drove bus number 1038 away.
On 7 October 2000, Mr Maitland‑Smith was driving bus number 1048 on his last run for the day at approximately 7.30 pm [39] ‑ [40]. His seat collapsed in the same way as it had on the earlier occasions. He brought the bus to a stop, contacted the controller by radio and requested the provision of a relief driver [40] ‑ [41].

Records of incidents, services and repairs

Path has a system of logging records of incidents reported by drivers. Each of the three incidents of seat collapse reported by Mr Maitland‑Smith were logged [43] ‑ [46].
Every bus in Path's fleet is serviced at 15,000 km intervals [48]. At each service, the operation of the driver's seat is checked in accordance with a specified procedure [50]. Path also maintains records of repair work carried out on each of its buses. There is no record of any repair work or investigation having been carried out in relation to the driver's seat on bus number 1038 following the incidents reported by Mr Maitland‑Smith on 20 May 2000 [53]. However, on 24 May 2000, as part of the regular system of maintenance to which I have referred, there is a record of the driver's seat on bus number 1038 having been checked, without any particular feature of that check being noted.
Nor is there any record of any work being undertaken in respect of the driver's seat on bus number 1048 immediately following the incident on 7 October 2000. However, two days later, there is a record that another driver reported that the driver's seat on that bus was 'very loose'. There is a record that the seat was fixed by fitting a 'new spacer' (a washer which assisted the chair to slide forward and back) [54].
The evidence of Mr Weeks was to the effect that he had never had any experience of a Bremshey Grammer chair collapsing, and in his view, it was virtually impossible for the chair to collapse [60]. However, after comparing that evidence to the evidence given by Mr Maitland‑Smith, the trial judge accepted the evidence given by Mr Maitland‑Smith in relation to the three occasions upon which the driver's seat collapsed [70].
Despite the lack of any record, or indeed any evidence of anything having been done by Path in relation to the driver's seats on the two buses following the incidents reported by Mr Maitland‑Smith, the trial judge made the following finding:
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. [72]

Conclusions of trial judge

The conclusions of the trial judge in relation to the allegations of negligence were as follows:
75I 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.
76As 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 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.
77Following 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.
78In 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.
In short, the trial judge concluded that Mr Maitland‑Smith had not established negligence in respect of the incidents which occurred on 20 May 2000, but had established Path's negligence in relation to the incident which occurred on 7 October 2000.
However, the trial judge also concluded that the Motor Vehicle Act did not apply to Mr Maitland‑Smith's claim for damages, following the decision of the High Court in Insurance Commission of Western Australia v Container Handlers Pty Ltd [2004] HCA 24; (2004) 218 CLR 89. Accordingly, his claim was dismissed.

The third party claim

Path had joined the Insurance Commission of Western Australia (the Commission) as a third party. The trial judge observed (obiter) that if Mr Maitland‑Smith had been entitled to an award of damages, Path would not have been entitled to indemnity from the Commission because Mr Maitland‑Smith's claim did not fall within the scope of the Motor Vehicle Act [93]. He also went on to observe that if, contrary to his view, Path had been entitled to indemnity, the Commission would have been entitled to counterclaim for breach of warranty, for the full amount of its liability to indemnify, because the bus was being used in an unsafe condition [94]. The Commission was a party to the appeal and made submissions on the scope of the Motor Vehicle Act.

The cross-appeal and notice of contention

As a matter of logic, it is desirable to deal first with the cross‑appeal and the notice of contention in response to that cross‑appeal, because they are concerned with the question of whether the trial judge was correct to conclude that Path was negligent. The precise basis of Path's liability to Mr Maitland‑Smith is central to the issue relating to the ambit of operation of the Motor Vehicle Act.
The basis upon which the trial judge found Path to be negligent in respect of the injuries suffered by Mr Maitland‑Smith on 7 October 2000 was outside the pleaded case. Three of the six particulars of negligence focus critically upon the weight of Mr Maitland‑Smith. Two relate to Path's systems for regular repair and replacement of 'old or worn out seats' and the sixth particular is a generic allegation of unsafe system.
However, Path does not take a pleading point in its grounds of cross‑appeal, although reliance is placed on the lack of a pleaded case in support of other grounds. Path's basic contention is that there was simply no evidence to sustain the findings made by the trial judge, and the conclusion of negligence at which he arrived. In particular, the cross‑appeal submits that the finding of negligence was based on an erroneous inference as to the existence of an unidentified defect in the Bremshey Grammer seats which was unsupported by evidence of actual defects and contradicted by objective facts as to the operation, regular inspection and servicing of such seats.
There is substance in Path's complaint. Following the incident on 20 May 2000, the only evidence to the effect that bus number 1038 was inspected was the evidence of its regular service on 24 May 2000. Following the incident on 7 October 2000, the only evidence relating to the inspection of bus number 1048 is the evidence to the effect that a new spacer was fitted to the driver's seat following a complaint by another driver that the seat was loose on 9 October 2000. There was no evidence that either bus was inspected as a consequence of the incidents reported by Mr Maitland‑Smith.
Nor was there any evidence to sustain the conclusion of the trial judge to the effect that the cause of the incidents reported by Mr Maitland‑Smith was identified. The reasoning of the trial judge in that regard (at [72]) is entirely dependent upon the hypothesis that there was an immediate inspection of the seats following the reports made by Mr Maitland‑Smith. But there is no evidence to support that hypothesis. There was also no evidence to support the conclusion of the trial judge to the effect that 'something was done to prevent it happening again' [72]. That is, with respect, speculation without foundation in the evidence. Finally, there was no evidence to sustain the conclusion that the cause of Mr Maitland‑Smith's seat dropping on 7 October 2000 was the same as the cause of the earlier incidents. Such a conclusion is, with respect, inconsistent with the finding expressly made by the trial judge to the effect that he was unable to identify the cause of the chairs dropping.
The reasoning of the trial judge was essentially to the effect that, following the two incidents on 20 May 2000, Path would have inspected bus number 1038, identified the cause of the problem and rectified it. In the view of the trial judge, after that had occurred, Path should have inspected every other bus under its control to see if there was a similar problem in the seats on those buses. The fundamental difficulty with this process of reasoning is that it is entirely unsupported by any evidence and is speculative. As I have observed, there is no evidence that any defect in the seat on bus number 1038 was identified, or that it was of a nature which justified checking all the other seats on all the buses in the fleet, or that, if such a check had been undertaken, it would have prevented the incident on 7 October 2000.
In his notice of contention, Mr Maitland‑Smith asserts that the trial judge should have found that the reason for the collapse of the seat on 7 October 2000 was the failure of a spacer under the weight of Mr Maitland‑Smith. The fundamental difficulty which the notice of contention confronts is that there is simply no evidence to support it. On the evidence, the spacer is a component of the seat which is involved in its forward and backward movement ([54] and (ts 222)) - that is to say, its movement on a horizontal plane. The movement of the seat which caused Mr Maitland‑Smith to suffer injury was in the vertical plane. Nor is there any evidence to sustain the contention that Mr Maitland‑Smith's weight had anything to do with the replacement of a spacer some days after the incident on 7 October 2000. There was also no evidence to sustain the more general proposition that the seats were inadequate to accommodate the weight of Mr Maitland‑Smith [64].
For these reasons, the cross‑appeal should be allowed and the notice of contention relating to that cross‑appeal dismissed. The finding of negligence made by the trial judge should be set aside.

The Motor Vehicle Act

My conclusion on the cross‑appeal is sufficient to dispose of the appeal in its entirety. However, as the issue relating to the ambit of the Motor Vehicle Act was fully argued, it is desirable for me to set out my conclusions in relation to it. As I have concluded that Mr Maitland‑Smith does not have a claim against Path, it will be necessary to deal with this issue on the hypothesis that the trial judge was correct to conclude that Path breached its duty of care to Mr Maitland‑Smith by failing to inspect the seats of all the buses in its fleet (including bus number 1048) after identifying the defect that caused the seat to collapse in bus number 1038.
Section 4 of the Motor Vehicle Act requires the owner of any motor vehicle on a road to have in force a contract of insurance 'against any liability which may be incurred by the owner or any person who drives the motor vehicle in respect of the death of or bodily injury to any person directly caused by, or by the driving of, the motor vehicle'.
Section 6 of the Motor Vehicle Act requires that a policy of insurance must be issued by the Commission and must insure the owner and any other person who at any time drives the relevant vehicle 'in respect of all liability for negligence which may be incurred by that owner or other person in respect of the death of or bodily injury to any person directly caused by, or by the driving of, the vehicle …' and be in a form substantially similar to that contained in a Schedule to the Motor Vehicle Act. The Schedule to the Motor Vehicle Act contains a form of policy under which the insurer agrees to indemnify the owner and any other person who drives the motor vehicle 'in respect of all liability for negligence which may be incurred by the owner or other person in respect of the death of or bodily injury to any person directly caused by, or by the driving of, that motor vehicle …'.

Section 3(7) of the Motor Vehicle Act provides that:
For the purposes of this Act, the death 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.

Insurance Commission of Western Australia v Container Handlers Pty Ltd

The ambit of operation of the Motor Vehicle Act was considered by the High Court in Container Handlers. The case arose from the transport of a truck on a low loader attached to a prime mover in a remote part of Western Australia. The driving of the truck along unsealed desert roads in extreme heat caused the wheel hubs to overheat and seize up. In the course of undertaking repairs to enable the vehicle to continue on its way, a man suffered serious injury as a consequence of what was found to be negligence for which the respondents (Container Handlers) was responsible: Container Handlers [1] (McHugh J). Container Handlers claimed indemnity from the Commission under the policy of insurance issued in relation to the motor vehicle.
As McHugh J points out in his reasons, the formula 'directly caused by, or by the driving of, [a] motor vehicle', which is found in s 4 and s 6 of the Motor Vehicle Act and the statutory policy (seen in the Schedule to the Motor Vehicle Act), was introduced by amendments made to the Motor Vehicle Act in 1987 following the decision of the High Court in Dickinson v Motor Vehicle Insurance Trust [1987] HCA 49; (1987) 163 CLR 500. Before the amendments, the statutory policy used the phrase 'caused by or arising out of the use of … [a] motor vehicle'. In Dickinson, the High Court held that injuries to a child left in a stationary vehicle which were suffered as a result of another child playing with matches in that vehicle arose out of the use of that vehicle and was therefore within the scope of the statutory policy.
The second reading speech made by the Deputy Premier at the time of the introduction of the 1987 amendments makes clear that the purpose of those amendments was to overcome the decision in Dickinson and tighten the scope of the statutory policy: Container Handlers [14] (McHugh J). In the course of that speech, the minister asserted that it was the intention of the government that liability to provide indemnity under the statutory policy 'was to be limited to the payment of damages for injury or death sustained by persons in consequence of the negligent driving of motor vehicles'.
McHugh J observed that the phrase introduced by the 1987 amendments could be broken into two separate and distinct limbs, namely, where the relevant injury was:
(a)directly caused by the motor vehicle; or
(b)directly caused by the driving of the vehicle: Container Handlers [15].
Container Handlers conceded that the second limb could not apply to the circumstances of that case. Therefore, the only question in that case was whether the workman's injuries were 'directly caused by the motor vehicle'.
As McHugh J points out, the notion that an inanimate object such as a vehicle can, of itself, cause anything is curious: Container Handlers [18]. In his view, there were two possible views as to the meaning of the expression. The first is that it 'simply looks to the vehicle as the harm causing instrument and requires a direct and immediate connection between the vehicle … and the death or bodily injury': Container Handlers [19]. That view is supported by the contrast between the first and the second limbs.
The second view looks to s 3(7) of the Motor Vehicle Act and requires that the words of that subsection be read into the first limb, so that 'the causal agent is always a driver or at least a person controlling the vehicle': Container Handlers [20]. However, as McHugh J observes, the difficulty with that view is that it renders the second limb of the phrase redundant. McHugh J preferred the first view of the meaning to be given to the expression: Container Handlers [21].
In his Honour's view, s 3(7) of the Motor Vehicle Act is not a true definitional provision, but rather works to limit the operation of the statutory policy issued in accordance with s 6 of the Motor Vehicle Act: Containers Handlers [29]. Section 3(7) achieves that effect by imposing an additional requirement such that even if the vehicle directly caused the relevant injury, the statutory policy would only apply if the relevant injury was a consequence of the driving of the vehicle or of the vehicle running out of control. In his Honour's view, in this context, the causal relationship required by the use of the expression 'as a consequence of' in s 3(7) of the Motor Vehicle Act was not analogous to the general principles applicable to causation in tort cases: Container Handlers [42]. Rather, the expression should be given its ordinary English meaning - namely, as 'the result or effect of an action': Container Handlers [43]. However, his Honour took a narrow view of the meaning to be given to the word 'driving', concluding that in s 3(7) it referred to 'the actual operation and control of the direction and speed of the vehicle': Container Handlers [52]. Thus, the critical question was whether the relevant injury was the effect of conduct that could properly be categorised as the 'driving' of the vehicle in this sense: Container Handlers [54]. In his Honour's view, there had to be a causal connection, in the sense he described, between the relevant injury and the driving of the motor vehicle: Container Handlers [63].
McHugh J observed that in the circumstances of Container Handlers, there was no evidence to suggest that it was any feature of the driving of the vehicle, such as running into a drain or avoidable pothole, or excessive speed, which caused the wheel bearings to fail, necessitating the repairs which in turn led to the injury: Container Handlers [65]. In his Honour's view, if there was evidence to that effect, it would at least be arguable that the policy might respond to the liability. However, in the absence of such evidence in that case, the respondents were not entitled to indemnity: Container Handlers [67].
Gummow J was of the view that s 3(7) of the Motor Vehicle Act is an interpretation provision, which operates to limit the meaning otherwise to be attributed to the expression 'caused by … [a] motor vehicle': Container Handlers [92]. In his view, it did not remove the requirement that an injury be 'directly caused by the driving of the vehicle or by a vehicle running out of control': Container Handlers [93]. Consequently, the concession by the respondents to the effect that the injury was not directly caused by the driving of the truck meant that it could not succeed in its claim for indemnity. In the view of Gummow J, it was unnecessary to determine the proper meaning to be given to the word 'driving' in the Motor Vehicle Act and statutory policy.
Although expressed in different terminology, the conclusion of Kirby J was not dissimilar to that of Gummow J. Callinan and Heydon JJ were of the same general view as Gummow and Kirby JJ with respect to the relationship between s 3(7) of the Motor Vehicle Act and the ambit of the statutory policy, but went further and expressed the view that 'driving' was limited to 'the actual control and management of the vehicle while it is in locomotion' - that 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': Container Handlers [153].
So, in the result, four members of the High Court (Gummow, Kirby, Callinan and Heydon JJ) construed the statutory scheme such that a claimant for indemnity under the statutory policy was required to establish a direct connection between the driving of the vehicle and the injury giving rise to the liability. Three members of the court (McHugh, Callinan and Heydon JJ) were of the view that 'driving' was limited to the actual operation and control of the direction and speed of the vehicle. All members of the court were of the view that in the circumstances of that case, there was insufficient connection between the driving of the vehicle and the injury to give rise to an obligation of indemnity.

Conclusion on Motor Vehicle Act

In the case under consideration, the trial judge concluded that because he was unable to identify the cause of the seat collapsing, he was unable to conclude, from the evidence, that it was caused by the management and direction of the motion of the bus. It is, with respect, clear from his reasons that the trial judge was correctly adopting the approach required by the decision in Container Handlers. No error of law is apparent in the approach taken by the trial judge on this issue.
However, on behalf of Mr Maitland‑Smith it is argued that the trial judge should have inferred that the collapse of the seat was caused by the motion of the bus, notwithstanding the lack of any evidence as to the cause of the collapse of either seat. On the view of a majority of the court in Container Handlers, this would be insufficient to establish an entitlement to indemnity under the statutory policy issued pursuant to the provisions of the Motor Vehicle Act, unless the motion of the bus which caused the seat to collapse was caused by some aspect of the management and direction of the vehicle.
There were other obstacles in the path of the argument which, as I understood it, had two components. The first was that an inference should be drawn from the fact that the bus was in motion on each of the three occasions upon which seat collapses occurred (ts 31 and 34). However, that fact establishes only a temporal connection between the motion of the bus and the collapse of the seat, not a causal connection. The temporal connection is hardly surprising, as it can be fairly supposed that a bus will be in motion for most of the time a driver is sitting on the driver's seat. Accordingly, a temporal connection is insufficient of itself to sustain any inference of causal connection.

The second component of the argument, as I understand it, is that the court should conclude that because it is inherently likely that the motion of the bus would have caused the seat to move up and down, as the vehicle moved over the uneven surface of a road, it is to be inferred that this motion caused the seat to collapse (ts 33). This is utter speculation. There was simply no evidence whatever as to any possible cause for the collapse of the seat, nor any evidence which would enable any possible connection to be drawn between a collapse of the seat and the forces on the seat occasioned by the motion of the bus. The evidence given by Mr Maitland‑Smith did not suggest that there was any connection between the collapse of the seat and any particular motion of the bus - such as tight cornering or bumpy roads, or any other feature of that kind.
For these reasons, on the hypothesis that the trial judge was correct to conclude that Path had breached its duty of care to Mr Maitland‑Smith, the trial judge was correct to conclude that Mr Maitland‑Smith's claim was not a claim to which the Motor Vehicle Act applied. Accordingly, the claim was correctly dismissed and the appeal must be dismissed.
McLURE JA: I too would dismiss the appeal, uphold the cross‑appeal and dismiss the notice of contention arising from the cross‑appeal. These are my reasons for doing so. The facts, pleadings and reasons of the trial judge are set out in the judgment of the Chief Justice and not repeated here unless required for an understanding of these reasons. I start with the cross‑appeal.

The cross‑appeal

The primary findings made by the trial judge are as follows:
(i)the drivers chair on bus 1038 on 20 May 2000 and bus 1048 on 7 October 2000 was a Bremshey Grammer chair;
(ii)the Bremshey Grammer seat collapsed in the manner described by the appellant (plaintiff). The appellant gave evidence that the rear of the seat fell by approximately 10 ‑ 12 cm on two occasions on 20 May 2000 and once on 7 October 2000;
(iii)the appellant notified the first respondent (defendant) (Path Transit) of those incidents and that they reportedly caused him injury;

(iv)the seat on bus 1038 was inspected after the incidents reported on 20 May 2000 and the cause of the failure of the seat was identified;
(v)something was done to prevent it happening again;
(vi)the problem which caused the seat to collapse had not occurred before 20 May 2000;
(vii)Path Transit had a system of inspection, service and maintenance of the seats;
(viii)there was no breach of duty in relation to the 20 May 2000 incidents;
(ix)the cause of the seat on bus 1048 dropping on 7 October 2000 was the same as for the seat on bus 1038 on 20 May 2000 because the appellant set the seat up in the same way;
(x)after identifying and rectifying the cause of the seat collapse on 20 May 2000, Path Transit should have added to the Operators Seat Check an identification and explanation of the problem that had occurred in bus 1038 and what could be done to prevent it happening;
(xi)such a check could have been done when a bus was being serviced and, if required, the seat could have been attended to so as to prevent it dropping as occurred on 7 October 2000;
(xii)Path Transit breached its duty and the breach caused the appellant's injuries on 7 October 2000.

The trial judge said there was no evidence that the appellant's weight (which varied between 120 kg ‑ 130 kg) caused or contributed to any defect or failure of the drivers seat.
Path Transit contends that findings (ii), (iv), (v), (x), (xi) and (xii) are not open on the evidence (that is, the findings are against the weight of the evidence). I start with Path Transit's challenge to finding (ii).
The appellant gave evidence that the drivers chair on each bus he was driving at the time of the incidents had a cylindrical base which was adjustable by means of a pin inserted into holes in the cylindrical base. The trial judge found that the appellant was mistaken in that respect and accepted the evidence of Mr Weeks, the fleet manager of Path Transit. His evidence was that the chair described by the appellant was not used by Path Transit and that all drivers chairs in Path Transit's buses were Bremshey Grammer chairs which employed a hydraulic damper with a scissor‑type pedestal.
Mr Weeks also gave evidence that the Bremshey Grammer seat could not collapse; the horizontal base of the seat could be height adjusted back and front; there are two springs under the front of the seat and two springs under the back of the seat and a lever operated the springs at the front and another lever operated the springs at the back; being spring‑loaded, the back of the horizontal part of the seat would have only collapsed if the springs broke, in which case the range of movement was only 2 cm ‑ 2.5 cm.
Mr Weeks also gave evidence of the defect reporting procedure at Path Transit. It was the drivers responsibility to report a defect in a bus and once a bus went to the maintenance department, there were procedures in place to investigate and repair any defect [52]. Path Transit also had a system of recording repairs or investigations of buses in its fleets. Path Transit had no record of any repairs or investigations to the drivers chair on bus 1038 [53]. The only record of any repairs or investigations to the drivers chair on bus 1048 was an entry in the historical defects record on 9 October 2000 noting that the drivers seat was very loose. The record notes that this defect was fixed by fitting a new spacer (which relates to the forward‑backward movement of the seat). Moreover, Path Transit regularly serviced its buses during which 'Operators Seat Checks' were undertaken. No defects in the seats had been identified.
The appellant did not adduce any technical or expert evidence relating to the seat collapses or to contradict Mr Weeks' evidence of the properties of a Bremshey Grammer drivers chair. The thrust of the cross‑appeal is largely to the effect that the trial judge erred in failing to accept Mr Weeks' evidence. Path Transit contends the trial judge's acceptance of the appellant's evidence is unreasonable having regard to Mr Weeks' evidence relating to the impossibility of a Bremshey Grammer seat collapsing at all or at least not more than 2.5 cms, the appellant's evidence which related to a different chair, the absence of any documentary evidence of investigations or repairs and the failure to identify any defect during regular inspection and testing of drivers chairs during regular services.
The trial judge concluded that he was not assisted in determining what evidence to accept or reject by having seen and heard the witnesses who gave their evidence. His assessment of all the witnesses was that they gave their evidence honestly and to the best of their recollection.
The appellant's evidence of the events on 20 May 2000 and 7 October 2000 is supported by contemporaneous reports to officers of Path Transit recorded in its business records. The trial judge concluded that the appellant believed his chair had collapsed in the manner of which he had given evidence. The trial judge continued at [69] ‑ [70]:
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 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.
I accept Mr Maitland-Smith's evidence of the three accidents.
The trial judge did not make a finding as to the precise extent of the fall. However, he accepted the appellant's evidence on that subject which was in the nature of an estimate. That finding is consistent with the appellant's evidence that as a result of the collapse of the seat on the first occasion on 20 May 2000, the appellant momentarily lost control of the bus which bounced off a kerb and on the second occasion he again lost control of the bus which bounced over a kerb onto a verge. Further, the appellant's evidence is of what actually happened and Mr Weeks' evidence is, of its nature, theoretical. Having regard to the corroborative documentary evidence of the appellant's contemporaneous complaints and the trial judge's assessment of the appellant's honesty, the trial judge's finding is open and reasonable. Path Transit's challenge to finding (ii) fails.
The trial judge also did not accept Mr Weeks' evidence that the only possible cause of the collapse was if the springs broke. The trial judge said he was unable to identify the cause of the seat dropping [75], [90]. It is also clear the trial judge concluded that the standard operating checks of drivers chairs in the course of regular services would not, or were unlikely to, expose the existence of the defect which caused the seat to collapse.
I turn now to findings (iv) and (v) that the seat on bus 1038 was inspected after the incidents reported on 20 May 2000 and the cause of the failure of the seat was identified and rectified. In my view, those findings are not open on the evidence. There is no documentary evidence that the incidents were ever investigated or that the chairs were inspected and repaired. Moreover, there was no oral evidence to that effect.
Path Transit had systems and procedures for the reporting, investigation and repair of defects which are recorded in document SOP ‑ 101. A driver returning a bus to the depot was required to signal the Depot Co‑ordinator that a bus had a defect whereupon the driver would be instructed to park the bus in an area reserved for buses with defects awaiting repairs (the defect row). On parking the bus, the driver is required to enter the defect on a 'Defect Sheet' at the entrance to the workshop. The maintenance person responsible for repairing the problem enters the defect into the recording system. The 'fix details' also have to be recorded and the maintenance person is required to sign the defect sheet on completion. There was no Defect Sheet for the incidents on 20 May 2000 or 7 October 2000.

The appellant did not return bus 1038 or bus 1048 to the depot on 20 May 2000 or 7 October 2000. Neither party called the drivers who returned those buses to the depot after the incidents. There is no evidence that those drivers were aware of the nature of the incidents or followed the defects procedure on their return to the depot. These matters, together with the absence of any written record which would come into existence if S0P ‑ 101 was complied with, supports the inference that the defect in the drivers chair in bus 1038 was never investigated, identified or repaired. The findings in (iv) ‑ (v) should be set aside. The findings in (ix), (x), (xi) and (xii) are consequential on the findings in (iv) and (v).
However, setting aside the findings relating to the inspection, identification and rectification of the defect in the seat of bus 1038 may not necessarily compel a conclusion that Path Transit was not negligent in relation to the incident on 7 October 2000. The failure to inspect and investigate the causes of the incidents on 20 May 2000 may be thought to go some considerable distance towards demonstrating a breach of duty. However, Path Transit justifiably complains in its written submissions that the breaches found by the trial judge were neither pleaded nor litigated. Similarly, the appellant does not in his notice of contention seek to uphold the finding of breach of duty on this alternative basis. It is not for this court to go to matters not raised by the parties in the appeal.
I agree with the Chief Justice for the reasons he gives that there is no merit in the appellant's notice of contention in the cross‑appeal relating to the failure of a spacer.
As the findings relating to the inspection, identification and rectification of the defect following the incidents in May 2000 are essential to the trial judge's findings of a breach of duty, the finding of breach must also be set aside and the appellant's action against Path Transit dismissed.

The appeal

As it is not necessary to determine the appeal, I would dismiss it. However, as the issues were fully argued it is convenient to address them on the assumption that the trial judge's findings stand.
Based on the trial judge's findings, the appellant would have been entitled to damages for negligence if his employer, Path Transit, was entitled to an indemnity from the Insurance Commission of Western Australia (the Commission) (second respondent) pursuant to a policy of insurance issued under the Motor Vehicle (Third Party Insurance) Act 1943 (WA) (Motor Vehicle Act). The constraints on awards of damages in the Workers' Compensation and Injury Management Act 1981 (WA) do not apply to the awarding of damages to which the Motor Vehicle Act applies (s 93B(3)).
Path Transit had a policy of insurance issued by the Commission in accordance with s 6(1)(b) of the Motor Vehicle Act. That section materially provides that the policy of insurance must:
insure the owner of the vehicle mentioned in the policy and any other person who at any time drives that vehicle, whether with or without the consent of the owner, in respect of all liability for negligence which may be incurred by that owner or other person in respect of the death of or bodily injury to any person directly caused by, or by the driving of, the vehicle …
The policy must be in a form substantially similar to that contained in a Schedule to the Motor Vehicle Act (s 6(1)(c)). Under that policy the Commission agrees to insure the owner of the motor vehicle and any other person who drives that motor vehicle 'in respect of all liability for negligence which may be incurred by the owner or other person in respect of the death of or bodily injury to any person directly caused by, or by the driving of, that motor vehicle … '.
Section 3(7) of the Motor Vehicle Act provides:
For the purposes of this 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.
This court is not free to approach the question of statutory (and contractual) construction in the usual way. It is required to start with the construction approved by the majority in Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89. A majority in that case held that s 3(7) is an interpretation provision which modifies the expression 'directly caused by, or by the driving of, a motor vehicle' to mean directly caused by the driving of a motor vehicle or directly caused by the motor vehicle running out of control: Gummow J [93]; Kirby J [117]; Callinan J [133]; Heydon J [153].
McHugh J dissented. He construed the first limb of the expression (directly caused by the motor vehicle), in conjunction with s 3(7), to mean that the insured must show that the injury was directly caused by the motor vehicle in consequence of the driving or uncontrolled motion of the motor vehicle.
The issue for determination in the appeal is whether the bodily injury suffered by the appellant as a result of the unidentified defect in the drivers seat on bus 1048 was directly caused by the driving of the bus.
It was accepted by all parties that the mere fact that the injury occurred whilst the bus was in motion as a result of being driven was insufficient. That is, a mere temporal connection between the injury and the fact that the motor vehicle was being driven does not satisfy the causal connection that the injury be directly caused by the driving of the motor vehicle. The appellant contends the statutory causal connection is satisfied if the motion of the motor vehicle being driven directly caused the seat to collapse and thus the injury.
The Commission contends that the evidence does not support a finding that the motion of the bus directly caused the seat to collapse injuring the appellant. Moreover, it says that such a finding would not in any event satisfy the statutory causal requirement which requires that the injury be directly caused by negligent driving of the motor vehicle.
There was some evidence that the motion from the driving of the bus caused the seat to collapse on 7 October 2000. First, all the incidents occurred when the bus was being driven. Secondly, the Operators Seat Checks at servicing involved inspection of the drivers chair and physical testing of the seat tilt mechanism which procedures did not disclose the defect in question. The evidence would in my view permit an inference that the driving motion of the bus caused the seat to collapse.
The legal issue is whether the negligent act or omission necessary to give rise to a right of indemnity under the statutory policy must involve the driving of the motor vehicle, the direct cause of the injury, or whether it is sufficient if the motion of the motor vehicle as a result of it being driven is the direct cause of the injury.
As a result of the decision in Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500, upholding a right of indemnity under the statutory policy for injuries suffered in a stationary vehicle, the Motor Vehicle Act was amended to its current form by the Motor Vehicle (Third Party Insurance) Amendment Act 1987 (WA) (the Amendment Act). The Second Reading Speech for the Bill that became the Amendment Act stated that the legislative intention was that liability be limited to death or injury sustained by persons in consequence of the negligent driving of motor vehicles. That is the background in which Container Handlers was decided. In that case, a passenger was injured when assisting the driver of a stationary truck to remove wheels from a low loader being hauled by the truck. The low loader slipped off a jack and crushed the passenger's hand. The truck had been hauling mining equipment on unsealed desert roads in extreme heat which caused the wheels of the low loader to overheat and seize up. The owner of the truck was found to be liable in negligence for its failure to provide suitable hydraulic power for the low loader and emergency repair equipment. It was also vicariously liable for the driver's negligent conduct in the mode of effecting the repair of the wheels. Thus, in Container Handlers the injury occurred while the motor vehicle (which included the low loader) was stationary and the negligent acts and omissions were not directly related to the fact, or manner, of driving the truck.
There are statements in the judgment of McHugh J that are not easy to reconcile. He said at [33]:
In support of its construction argument, the ICWA refers to statements in the Second Reading Speech to the Amendment Bill that the object of the 1987 amendments was to indemnify in respect of 'the payment of damages for injury or death sustained by persons in consequence of the negligent driving of motor vehicles'. However, while statements in Second Reading Speeches concerning legislative intent are a guide ‑ often a useful and sometimes a definitive guide ‑ as to the meaning of the legislation, they do not replace the words of the Act. Under s 6(1)(b) and the Schedule, the cover provided by the statutory policy is for 'all liability for negligence', not merely liability for negligent driving … The statutory policy will also apply if, by reason of a defective inspection system, the brakes on a vehicle fail and cause a collision, even though the driver was not negligent with respect to the collision. (original emphasis)
That statement is to be contrasted with what he says at [64], [65]:
It is true that, if death or injury is directly caused by the vehicle, it is not necessary that it be directly caused by the driving of the vehicle. It is sufficient if the death or injury is a consequence of the driving. [original emphasis] Whichever limb of the indemnity is invoked, however, the legislative history and purpose of the Act demonstrate that there must be a causal link between the death or injury and some feature of the driving of the vehicle [emphasis added] … The death or injury must be a consequence of the driving of the vehicle. [original emphasis] The definite article 'the' in front of 'driving' emphasises the need to find a causal connection between the death or injury and some feature of the driving of the vehicle. It is at this stage that the case for Container Handlers fails.
Nothing in the evidence suggests that any particular feature of the driving of the vehicle brought about the injury to Mr Sutton. Nothing in the evidence suggests that some feature of the driving, such as running into a drain or avoidable pothole or driving at excessive speed, caused the low loader's wheel bearings to fail or the wheels to lose their shape.
Based on the examples given in [65] it seems the 'features' of the driving must be untoward actions by the driver otherwise why unavoidable potholes rather than any pothole. If the untoward action is not negligent the unanswered question is what is the criterion for a relevant 'feature' of the driving. I am unable to proffer a principled benchmark that is more than driver caused and controlled motion but less than negligent driving. None has been advanced by any party.
Container Handlers had conceded that the injury to the passenger was not directly caused by the driving of the vehicle or it running out of control. Thus, Gummow J dismissed the appeal without considering the meaning of 'driving' and the need or otherwise of a causal connection between that driving and the injury sufficient to give rise to liability. There is also nothing in the judgment of Kirby J to shed light on this issue.
The following passage from the judgment of Callinan J suggests that where the injury is caused by the driving of a motor vehicle it may have to be negligent driving. He said at [133]:
The selection of the word 'consequence' was no doubt carefully considered. It was intended to cut down the expansive meaning which might otherwise, consistently with the approach in other cases, have been adopted. If it were otherwise, and 'driving' were to be given the meaning that Container Handlers contends it to have, a relevant injury might be taken to have been sustained absent any negligent human agency in the driving of a motor vehicle [emphasis added] … The word 'directly' and the language of s 3(7) are imperious: the insurer will only be liable if a personal injury or death has been directly caused by the driving, that is the operation of a motor vehicle while it is in the control of a driver in the course of putting it into, keeping it in, or bringing its motion to a conclusion, or if the motion is uncontrolled. [original emphasis]
Heydon J said at [153]:
[T]he 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 … In contrast, when the vehicle runs out of control, it is because the course of its movement has ceased to be managed and directed by the operation of the controls, or because, while stationary, its brakes have failed or it has been struck by another vehicle and it has moved off out of control.
Heydon J rejected the conclusion of the Full Court that the negligent acts and omissions of Container Handlers were aspects of the driving of the truck. However, Heydon J did not expressly comment on whether or not it was necessary to link the negligent acts and omissions to the driver's management and control of the vehicle.
No question of the motor vehicle running out of control arises in this case. The majority position in Container Handlers is that the injury must be directly caused by the driving of the motor vehicle and the driving means the operation of the vehicle under the control and management of the driver. However, there is no express majority view that the driving must itself be negligent. Non‑negligent driving of a motor vehicle may directly cause personal injury because, for example, of a defect in the vehicle's braking system (unknown to the driver) but which does not result in the vehicle running out of control. The driver caused and controlled motion of the vehicle is the direct (immediate) physical cause of the injuries.

There is no warrant in the statutory or contractual language to import a requirement that liability to indemnify depends on the injury being directly caused by negligent driving. As stated by McHugh J [34] the intention of the legislature in amending the Motor Vehicle Act was to narrow the scope of the statutory policy by connecting liability under the statutory policy with the locomotion of the vehicle insured, whether as a result of the driving of the vehicle or it running out of control.
If negligence is not the criterion, the remaining question is whether some additional feature is required beyond driver caused and controlled motion. I am unable to formulate a principled basis for any such additional feature and I am not persuaded the statutory insurance policy requires it. Accordingly, the statutory causal connection would be satisfied in this case if the driving motion of the bus caused the seat to collapse and injure the appellant.
LE MIERE AJA: I agree with the Chief Justice.