Mannall v Howard (No 2)
[2019] ACTSC 113
•21 June 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Mannall v Howard (No 2) |
Citation: | [2019] ACTSC 113 |
Hearing Dates: | 29-30 April 2019, 1-2 May 2019 and 24 May 2019 |
DecisionDate: | 21 June 2019 |
Before: | Mossop J |
Decision: | See [148] |
Catchwords: | INSURANCE – COMPULSORY THIRD PARTY LIABILITY INSURANCE – Statutory interpretation – motor accident – whether compulsory third-party policy responds to the claim –whether accident was a motor accident within the meaning of Road Transport (Third Party Insurance) Act 2008 (ACT), s 7 – definition of “use or operation of a motor vehicle” |
| TORTS – NEGLIGENCE – Personal injury – plaintiff sues fellow employee of Territory for negligence – whether liability of fellow employee precluded by s 44 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether Territory would have been liable for negligence of fellow employee – Territory would have been vicariously liable – s 44 precludes liability of fellow employee and hence liability of third party insurer | |
| WORDS AND PHRASES – “in the course of employment” – whether employee in the course of employment so as to make employer vicariously liable for conduct when he has concluded work but is driving on employer’s premises | |
Legislation Cited: | Accident Compensation Act 1985 (Vic) Civil Law (Wrongs) Act 2002 (ACT), ss 43, 43(1)(a), 43(1)(b), 43(1)(c), 43(2)(a) Workers’ Compensation Act 1926 (NSW) |
Cases Cited: | Campbelltown City Council v Bussell [2002] NSWCA 410; 37 MVR 563 Commonwealth v Cocks (1966) 115 CLR 413 YZ Finance Code Pty Ltd v Cummings (1964) 109 CLR 395 |
Texts Cited: | Atiyah PS, Vicarious Liability in the Law of Torts (Butterworths, 1967) Fleming JG, The Law of Torts (3rd ed, Law Book Co Ltd, 1965) Luntz H, Assessment of Damages for Personal Injury and Death (4th ed, Butterworths, 2002) |
Parties: | David Mannall (Plaintiff) Malcolm Howard (First Defendant) Insurance Australia Limited t/as NRMA Insurance (Second Defendant) |
Representation: | Counsel C Bridge SC with W Sharwood (Plaintiff) G Kennett SC with H Chiu (First Defendant) GM Watson SC with VM Heath (Second Defendant) |
| Solicitors Sneddon Hall & Gallop (Plaintiff) ACT Government Solicitor (First Defendant) Moray & Agnew (Second Defendant) | |
File Number: | SC 468 of 2017 |
MOSSOP J:
Introduction
The plaintiff, David Mannall, worked at the Belconnen bus depot. He worked there as a “cleaner/fueller”. The manager of the Belconnen bus depot, Malcolm Howard, is the first defendant in the proceedings. The vehicle that Mr Howard was driving collided with the plaintiff as he was leaving his parking place on 29 October 2014. The second defendant, Insurance Australia Ltd, which trades as NRMA Insurance, is the compulsory third-party (CTP) insurer of the vehicle that the first defendant was driving.
As a result of the accident the plaintiff received benefits under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). Those benefits included payment of wages during periods when he was unable to work his usual hours and payment of medical expenses. Notwithstanding that he was entitled to benefits under the SRC Act, the plaintiff sued the first defendant and the second defendant for damages. The second defendant denied that it was liable to indemnify the first defendant because it contended that what occurred was not a “motor accident” within the meaning of the Road Transport (Third Party Insurance) Act 2008 (ACT) (RTTPI Act). Further, the second defendant contended that even if it was liable to indemnify the first defendant then there was, in fact, no liability because, as a compulsory third-party insurer, it was only liable to the extent that the first defendant would be liable to the plaintiff and the first defendant was not liable to the plaintiff because s 44 of the SRC Act had the effect that the plaintiff had no cause of action against the first defendant.
On the first of these issues, contrary to the submissions put by the second defendant, there was a “motor accident” within the meaning of the RTTPI Act. Notwithstanding the ambiguity arising from poor legislative drafting, ss 7 and 8 of the RTTPI Act are best interpreted as not requiring that any driving of the motor vehicle occur on “a road or road related area”. That would have been significant because if, in order to have a “motor accident”, it was necessary for the driving to have occurred on “a road or road related area” then the accident in question would not have satisfied that requirement because the area where it occurred did not come within that expression.
On the second of these issues, the second defendant is correct in submitting that s 44 of the SRC Act has the effect that the plaintiff does not have a cause of action for damages against the first defendant. Like the plaintiff, the first defendant was an employee of the Australian Capital Territory (the Territory). The operation of s 44 is dependent upon the Territory being liable for the damage suffered by the plaintiff. The evidence was not sufficient to establish that the Territory had itself provided an unsafe system of work or an unsafe place of work, was liable as an occupier of the premises or liable pursuant to the principle in Soblusky v Egan (1960) 103 CLR 215. However, the evidence was sufficient to establish that the Territory was vicariously liable for the negligent conduct of Mr Howard. Because the Territory would have been liable at common law for the damage suffered by the plaintiff, s 44 of the SRC Act has the effect that no action or other proceeding for damages could be brought against it or its employee, the first defendant. That means that no action could be brought against the first defendant for damages. That also means that the second defendant bore no liability under the relevant CTP policy because the second defendant’s obligation was to indemnify the first defendant against any liability. If the first defendant had no liability then the second defendant had no liability.
The end result is that, although the second defendant was liable to indemnify the first defendant, in the circumstances of this case, because of the operation of the SRC Act, the first defendant bore no liability and hence neither did his insurer, the second defendant. That means that the plaintiff’s claim fails in its entirety and he is left with whatever benefits he is entitled to under the SRC Act.
The first defendant had agreed with the plaintiff that if the relevant CTP policy did not oblige the second defendant to indemnify him, then the damages for which he would be liable were $110,000. However, as explained above, the position is that the second defendant was liable to indemnify the first defendant even though the first defendant and hence the second defendant ultimately bore no liability. As a result, the agreement reached between the plaintiff and the first defendant was not sufficient to prevent judgment being entered in the first defendant’s favour against the plaintiff.
The accident
The plaintiff was employed as a “cleaner/fueller” at the Belconnen ACTION bus depot. ACTION is an acronym for ACT Internal Omnibus Network and is the government‑run bus service which operates in Canberra. Within the Belconnen bus depot was an administration building. In front of the building was one of the access roads used by vehicles to move around the bus depot. Between the building and this access road was a footpath which ran along the front of the building. This was where the main entrance to the building was located. At the southern side of the building there was another entrance to the administration area as well as to a gym. Adjacent to these entrances was a paved area where the first defendant would routinely park his vehicle. On 29 October 2014, he parked his vehicle nose-in, meaning that he was required to exit by reversing from the paved area across the footpath that ran past the front of the building and then onto the access road.
On that afternoon at about 5.00pm, the plaintiff was walking from an area referred to as the “fuel bay” down to the main entrance of the administration building. He did so in order to make an inquiry about whether he could commence cleaning buses. He was told that there were further buses on the road and that he should not commence cleaning. As a consequence he intended to return to the fuel bay. In order to do so he exited the main entrance of the building, turned right and walked along the footpath that ran between the administration building and the access road. As he approached the corner of the building adjacent to the paved area where the first defendant parked his vehicle, his view of that paved area was obscured by the building itself. The first defendant was in the process of reversing his vehicle out of its parking place as the plaintiff passed the corner of the administration building and hence entered onto that portion of the footpath which had to be crossed by the first defendant’s vehicle in order to get onto the access road. As the plaintiff had approached the corner of the building there was considerable noise from buses and possibly also from the extractor fans which operated to clear diesel fumes from the covered areas where the buses were parked. The plaintiff’s attention was also drawn to the driver of a vehicle that was coming towards him who appeared to be waving to him. The plaintiff waved back. (As it turned out the person in the vehicle, Robert Barker, was intending to warn him that the first defendant’s vehicle was coming out of its parking place.) The plaintiff was then struck by the first defendant’s vehicle as it reversed across the footpath. The plaintiff felt a “massive crunch” on his right side. He fell into the gutter of the road. His left elbow struck the road. He also had a slight graze on the top of his right buttock. The first defendant got out of his car and said, “sorry, I didn’t see you”. He checked whether the plaintiff was okay and told him to fill out an incident report. The plaintiff collected an incident report form from the administration building and returned to the fuel bay where he filled it out.
As a consequence of the accident, the plaintiff has had consistent problems with his left elbow. Those problems have required surgery on two occasions, the first in April 2015, being a left ulnar nerve release and subcutaneous transposition, and the second in September 2015, being a proximal release of the ulnar nerve at his elbow. He has also suffered Dupuytren’s contracture and this required a palmar fasciectomy for Dupuytren’s contracture in his left hand in August 2016. There is an issue as to whether the Dupuytren’s contracture was caused by the accident.
Following the accident
Following the accident, the plaintiff felt quite unwell. He had pain in his right thigh and left elbow. He had some minor pain in his lower back. He was unable to see a doctor or get treated at the walk-in clinic in Tuggeranong that evening. He saw his usual doctor, Dr Sue Williams, the next day. She told him that he would get better. She organised an x‑ray. He took Panadeine Forte at home because of the pain. His employer arranged physiotherapy and he had five rounds of physiotherapy. This was to address twitching in his forearm and fingers and the difficulties that he was having in his right thigh which made it difficult to walk. He was off work for about four weeks.
In January 2015, he was suffering from radiation of pain in his left elbow, from pins and needles and twitching. He had an MRI scan in January 2015. He saw Dr Sindy Vrancic, an orthopaedic surgeon. She initially treated him with a cortisone injection in February 2015 which did not resolve the problem. He was prescribed Endep but that did not agree with him. On 9 April 2015, he had a left ulnar nerve release and subcutaneous transposition. This was done as day surgery. He then received treatment from Ms Lyn Wegner who gave him exercises to keep his ulnar nerve moving. He was able to return to light duties at work and worked within his limits. In August 2015, he had another steroid injection into his left elbow. He then had his second surgery on 4 September 2015 to release the ulnar nerve which was trapped in scar tissue. Prior to surgery, he described that he had felt extreme pain as a result of a “kink” in the ulnar nerve. He suffered from significant pain postoperatively.
He then suffered from Dupuytren’s contracture in the fingers of his left hand. While there was initially a disagreement between orthopaedic surgeons as to the cause of this, he was ultimately treated for it by the conducting of a palmar fasciectomy on his left hand on 30 August 2016. That improved the functioning of his left hand.
He also received treatment from a pain psychologist because he was suffering from depression which was contributed to by his pain, disrupted sleep and an inability to do lots of tasks.
He was subsequently treated, from October 2016, by Dr Romil Jain, a pain specialist. He continued to be able to work performing light duties at the Belconnen bus depot. He was given a work trial in February 2018 at the National Arboretum but was ultimately unsuccessful in his application for a permanent position there. As a consequence, he continues to work at reduced hours at the Belconnen bus depot.
Was there a “motor accident”?
The relevant version of the RTTPI Act is that which was in force at the date of the accident, Republication No 18. Sections 7‑8 are as follows:
7 Meaning of motor accident and injured person
In this Act:
motor accident means an incident that—
(a) involves the use or operation of a motor vehicle; and
(b) causes personal injury to an individual (the injured person); and
(c) happens when—
(i) someone is driving the motor vehicle; or
(ii) someone or something collides with the motor vehicle; or
(iii) someone takes action to avoid colliding with the motor vehicle; or
(iv) the motor vehicle runs out of control.
8 When does someone use a motor vehicle?
(1) For this Act:
use, a motor vehicle, includes—
(a) drive, park or stop the vehicle on a road or road related area; and
(b) maintain the vehicle; and
(c) if the vehicle is towing a trailer—use the trailer while attached to the vehicle; and
(d) if the vehicle is a tow truck towing or carrying an uninsured motor vehicle—use or operate the uninsured vehicle being towed or carried; and
(e) anything else prescribed by regulation.
(2) Also, if a trailer being towed by a motor vehicle becomes detached from the vehicle and runs out of control, the use of the vehicle is taken to include the trailer while it is running out of control.
The second defendant contended that there was no “motor accident” within the meaning of s 7 because the incident did not happen on a “road or road related area”. The plaintiff and the first defendant contended that where a vehicle was being driven, it was not a requirement of the definition of “motor accident” that the incident occur on a “road or road related area”.
On this issue the submissions made by senior counsel for the first defendant were adopted by the plaintiff. The submissions effectively mirrored the points articulated in Haider v Lane & Anor; Lane v Haider & Anor [2014] ACTSC 205 at [32]-[40]. In that case the NRMA had initially argued that there was no motor vehicle accident and hence no obligation to indemnify the driver because the accident had not occurred on a road or road related area. Following a change in representation that position was abandoned and NRMA conceded that the interpretation for which it had contended was incorrect. Counsel for NRMA articulated a number of propositions about the operation of s 8 and I indicated that I agreed with those propositions. They were as follows:
34.Firstly, s 8(1)(b)-(e) and s 8(2) of the Act are provisions designed to create an extended definition of “use” in relation to a motor vehicle. The maintenance of the vehicle, the use of a trailer attached to the vehicle, the use of an uninsured vehicle which is in the process of being towed or carried upon a tow truck, or the trailer which becomes detached from a motor vehicle are all matters which would not generally be regarded as the use of a motor vehicle were it not for the expanded definition within s 8.
35.Secondly, s 8 is plainly inclusive ‑ see the reference to “includes” ‑ it is not exclusive. In other words it does not define the outer limits of “use”.
36.Thirdly, s 8 says nothing about the meaning of “operation”, which appears in s 7.
37.Fourthly, while it is difficult to see why the legislative drafter included paragraph 1(a) in s 8, at least in so far as it refers to the word “drive”, the considerations above indicate that it does not operate to restrict the meaning of “use or operation” in s 7.
38.Fifthly, that the definition of “the use or operation” is to be considered widely is reinforced by the use of the word “involved” in s 7, a connecting word of considerable generality.
39.Finally, the conclusion is reinforced by the consideration that if s 8 was to be read in a manner which restricted not only the definition of “use” but also restricted the phrase “the use or operation”, then the result would be a dramatic lacuna in CTP coverage unique to the Territory and giving rise to potentially arbitrary distinctions between circumstances that would give rise to insurance coverage and those that would not.
The second defendant now adopts the position that it abandoned in Haider. In other words, it contends that in order for there to be a “motor accident” involving the driving of a motor vehicle it must occur on a “road or road related area”. In summary, the submission was that paragraph (1)(a) of the definition of “use” had the effect that paragraph (a) of the definition of “motor accident” in s 7 was limited to conduct “on a road or road related area”. The chain of reasoning contended for may be summarised as follows:
(a)The scheme under the Motor Traffic Act 1936 (ACT) prior to its repeal in 2000 provided that CTP insurance covered liability for death or bodily injury to any person “caused by or arising out of the use of the motor vehicle in any part of the Commonwealth”.
(b)The scheme that was put in place upon the commencement of the Road Transport (General) Act 1999 (ACT) (RTG Act) in 2000 required CTP insurance to cover liability in relation to death or bodily injury to a person “caused by, or arising out of the use of, the vehicle anywhere in Australia (whether or not on a road or road related area)”.
(c)Notwithstanding these provisions, the nominal defendant scheme provided under each Act only covered liability if it arose from the “use of … a motor vehicle on a road or road related area”.
(d)There was a change in the scope of cover provided by CTP insurance policies when the RTTPI Act was enacted in 2008.
(e)One of the main objects of the RTTPI Act is “to keep the costs of insurance at an affordable level”: s 5A(c).
(f)The explanatory statement accompanying the bill in relation to the clauses that became ss 6-8 provided that:
The aim of these definitions is to link more closely to the principle that compensation under this statutory scheme should only arise if the personal injury derives directly from an accident that reflects the insured risk.
(g)In its ordinary meaning the term “use” includes everything that would be covered by the word “operation” or by the compound expression “use or operation”: Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500 at 505.
(h)That ordinary meaning was altered and limited by the RTTPI Act so that the primary definition of “use” is to “drive, park or stop the vehicle on a road or road related area”. That involved a significant departure from the previous schemes and substantially confined cover by expressly limiting the places to which an indemnity extends.
(i)In those circumstances, the change of language from “use” to “use or operation” reflects an intention to limit rather than expand coverage.
(j)The function of s 7 of the RTTPI Act was to confine cover to the particular circumstances identified in the definition of motor accident. The ordinary meaning of “operation” would be contained within the ordinary meaning of “use”. If “operation” was given its ordinary broad meaning then paragraph (a) of the definition of “use” would have no operative effect, insofar as it confined the use of the activities to a “road or road related area”.
(k)The omission of the words in the RTG Act “anywhere in Australia (whether or not on a road or road related area)” and the insertion in the RTTPI Act of the words “on a road or road related area” in paragraph (a) of the definition of “use” involved a departure from and reversal of the earlier definitions to which the court is obliged to give effect.
(l)The words “on a road or road related area” only have effect if they limit the meaning of “motor accident” and therefore limit the risk insured.
Ambiguity in drafting
The legislation clearly contains some ambiguity. That ambiguity relates to the relationship between the apparently broad scope of the expression “use or operation” in paragraph (a) of the definition of “motor accident”, and paragraph (a) of the definition of “use” which is stated to be inclusive. The expression “use or operation” is an apparently broad one. The limitation in paragraph (a) of the definition of “use” must either be rendered ineffective or be given an effect inconsistent with the inclusive language of the definition.
There is merit in the textual arguments put by either side.
On its face, the definition of “use” is clearly an inclusive one and not an exclusive one. Sections 6, 7, 8, 9 and other provisions in the RTTPI Act contain definitions which draw a clear distinction between those which are exclusive (“means”) and those which are inclusive (“includes”).
However, it is clear that if the legislative context demands it, a definition which is expressed in inclusive terms may be interpreted as though it was in fact a statement of what was comprised within the defined term. The decision in YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395 illustrates that although “includes” is generally not, in its ordinary meaning, a word of exclusion, it is possible that its object is the whole of the subject and that depends upon the construction of the entire provision in which the word appears: YZ Finance Code Pty Ltd at 398-399, 401-402. In that case, the question was whether an inclusive definition of the term “security” should in fact be read as an exclusive definition. Each of the items in the definition was a security in the ordinary meaning of the word and as a consequence the definition was “enacted not in order to provide a glimpse of the obvious but in order to describe the whole extent of the inclusiveness of ‘security’ for the purpose of the section”: at 403 per Kitto J. On the other hand, the drafting of the legislation may make it clear that a defined expression that “includes” matters should take effect as an inclusive rather than exclusive definition. Thus, in Federal Commissioner of Taxation v St Hubert’s Island Pty Ltd (In liq) (1978) 138 CLR 210 at 215-216, Stephen J placed emphasis upon the fact that an inclusive definition had the effect of expanding the defined term beyond its ordinary meaning, indicating it was to be read as inclusive rather than exclusive. (See also the judgment of Mason J at 224.)
While the first defendant and the plaintiff point to the fact that the word “operation” is undefined and would be apt to include the driving of a motor vehicle anywhere, the second defendant is correct to submit that treating the definition of “use” as inclusive, so that “use” and “operation” may also have their ordinary meanings, would leave little scope for the operation of the qualification “road or road related area” in paragraph (a) of the definition of “use”, either as a direct limitation because it is exclusive or as an implied qualification upon the scope of the ordinary meaning of “use”.
In Haider, I said that if the definition of “use” restricted the scope of the expression “use or operation”, the result would be a dramatic lacuna in CTP coverage unique to the Territory and giving rise to potentially arbitrary distinctions between circumstances that would give rise to insurance coverage and those that would not. The submissions made by the first defendant in the present case identified some of those circumstances:
(a)The scheme would cover a person injured while “maintaining” a vehicle anywhere but not a person struck by a vehicle being driven in a privately owned carpark, garage or farm paddock unless the area in question could be said to be a road or road related area.
(b)The scheme would cover an out-of-control trailer being towed by a vehicle on private land, but not by the vehicle doing the towing.
(c)Every motorist would be uninsured for personal injury liability under the CTP scheme the moment they entered their home driveway or workplace.
While it might be possible to resolve the question by reference to an analysis of the text and structure of the provisions and the consequences of the competing interpretations, such an exercise would not ensure compliance with the court’s duty to prefer an interpretation that would “best achieve the purpose of the Act”: Legislation Act 2001 (ACT), s 139. In undertaking the exercise required by s 139 in the present case it is important to have regard to the pre‑existing law and the legislative purpose of enacting the RTTPI Act. Such an approach is obviously essential in order to assess the merits of the second defendant’s submission that a significant change in insurance coverage was a component of that Act.
Legislative intention
The submission made by the second defendant finds no support in the Chief Minister’s presentation speech for the RTTPI Bill. When the speech is read as a whole, it is clear that the Chief Minister did not intend that the RTTPI Bill achieve a significant reduction in the scope of CTP insurance. There is no reference to the introduction of a restriction which would confine the scope of third-party insurance to driving on roads or road related areas. It is very clear that the express intention to reduce the overall cost of CTP was to be achieved without any significant reduction in the compensation given to injured persons who could establish a fault on the part of the insured driver.
When explaining the overall scheme of the bill, the Chief Minister, Mr Stanhope, said (Hansard, 22 November 2007, 3691-3692):
This bill does three fundamental things, and in so doing draws upon the most modern statutory provisions available:
• Chapter 2 of the bill, derived from equivalent New South Wales and Queensland provisions, establishes a new basic structure for the CTP scheme, including provisions regulating CTP insurance premiums that are very familiar to the seven insurers selling CTP in New South Wales, six of whom also offer CTP insurance in Queensland.
• Chapter 3 of the bill, derived from equivalent Queensland provisions, coupled with provisions from the Civil Law (Wrongs) Act 2002, provides a new structure for dealing with CTP insurance claims.
• Chapter 4 of the bill, derived from chapter 7 of its New South Wales counterpart, provides a new mechanism for managing the licensing and regulation of CTP insurers. This chapter also requires ACT CTP insurers to provide claims and related information in the same format as they do in both Queensland and New South Wales.
These three key elements represent the foundation of the new CTP scheme. They provide NRMA and, indeed, any of the insurers offering CTP insurance in New South Wales and Queensland with an efficient, standardised platform for licensing, regulation and claims procedures.
The government expects that this bill will also:
• firstly, make it easier for NRMA to administer its responsibilities in the ACT and encourage other insurers to recognise the ACT as a compatible, open market jurisdiction; and
• secondly, modernise claims handling and procedures so that there is primary emphasis on health outcomes, as opposed to inordinately extended processes, leading to lump sum compensation, ground out over a number years.
Thus the intention is to improve health outcomes for those injured as a result of motor vehicle accidents, to foster competition, and to reduce CTP premiums.
Lest there be any misunderstanding, the problem with the existing ACT scheme is not the existence of common law rights. Such rights exemplified the principle which the ACT government defended in the wake of the 2001-02 insurance crisis, when the Insurance Council of Australia was telling us that public liability insurance would not be available in the ACT unless we savagely curtailed the rights of negligently injured persons to pursue compensation. The ACT government stood firm and has been vindicated. Public liability insurance is readily available in the ACT and, thanks to the risk management initiatives which the government has sponsored, it is affordable even for the smallest of businesses and community organisations.
In his speech the Chief Minister also made reference to the fact that when the first CTP insurance scheme was introduced in the Territory in 1948 there were 16 insurers, but since 1980 there had only been one, NRMA.
In summary, the presentation speech emphasises reform of the regulatory environment for insurers, restructuring of the CTP scheme and procedural reform relating to claims to introduce a more efficient CTP scheme, which would be more attractive to insurers and hence create a more competitive insurance market. It is correct to say that the legislation as enacted provided for significant alteration and modernisation of the CTP scheme. However, consistently with what the Chief Minister said in the presentation speech, it did that in ways which were unrelated to the geographical coverage of CTP insurance. As a consequence, the fact that times had changed and reform of the CTP insurance and claim process was necessary says nothing about the point in contention in this case.
There is nothing in the extrinsic materials which indicate an intention to achieve a substantial reduction in the geographical coverage of a CTP policy. There is nothing in the extrinsic materials which indicate that this is the mechanism by which any cost savings are to be achieved. Insofar as the second defendant sought to rely upon s 5A(c) for the submission that “it was a legislated object of the 2008 scheme to keep costs at an affordable level”, two points must be made. First, the general statement of that object does not support the specific contention that costs were to be kept at an affordable level by the means contended for by the second defendant as opposed to the means referred to in the presentation speech. Second, the objects provision relied upon was not present when the legislation was first enacted. It was only inserted in 2010. Therefore, while this object appears to be consistent with what the extrinsic materials disclose to be one of the purposes of the RTTPI Act, it cannot be said that it was a legislated object when the RTTPI Act was first passed.
The correct approach to the ambiguity of the provisions is clear when one understands the unfortunate combination of poorly drafted pre-existing law and that the drafter of the RTTPI Bill adopted a bowerbird approach to the construction of the definitions in question in this case.
As with much drafting confusion in the Territory, the seeds for the drafting ambiguity were planted in earlier legislation, some bits of which have been incorporated into the drafting of new legislation without a clear understanding of the ambiguities they incorporate. Under the RTG Act, s 163(a) provided that a CTP policy covered liability “caused by, or arising out of the use of, the vehicle anywhere in Australia (whether or not on a road or road related area)”. The term “use” was defined to “include” “drive, park or stop the vehicle on a road or road related area”. It will be noted immediately that the section ensures that there is coverage regardless of whether or not the use of the motor vehicle was on a road or road related area and yet the inclusive definition confines the geographical coverage of use to a road or road related area. Thus, under the RTG Act there was the same tension as exists between paragraph (a) of the definition of “use” in s 8 of the RTTPI Act and the ordinary meaning of the term “use or operation” in paragraph (a) of the definition of “motor accident” in s 7. That exists because of the combination of a general term and an apparently inclusive definition which would, if exclusive, confine the scope of the general term. In the RTG Act the confusion was adequately resolved by the bracketed terms in s 163(a) which make it clear that there is no restriction to a road or road related area. Because the bracketed expression occurs in the relevant section, that is sufficient to eliminate the ambiguity that would arise by reason of the terms of the definition. However, the confusion of thought embedded within the definition meant that this was a drafting precedent that was dangerous to adopt in later legislation.
The RTG Act provided that the CTP policy covered liability “caused by, or arising out of the use of, the vehicle … ”. One of the significant changes brought about by the RTTPI Act was the abandonment of the expression “arising out of” as the language used to describe the scope of insurance coverage. The trend away from the expression “arising out of” to more specific language identifying the circumstances in which liability of an insurer would arise is referred to in Insurance Australia Ltd (trading as NRMA Insurance) v Iuli [2013] ACTSC 209; 9 ACTLR 268 at [25]-[38]. It is clear from both the terms of the legislation and the Chief Minister’s presentation speech that this was one of the respects in which the RTTPI Act was “derived from the equivalent New South Wales and Queensland provisions” and established “a new basic structure for the CTP scheme”, including provisions that would be “very familiar to the seven insurers selling CTP in New South Wales, six of whom also offer CTP insurance in Queensland”: see Iuli at [37]. The obvious concern expressed in the presentation speech was to have a basic structure of the CTP scheme which would be familiar to insurers in the larger States and hence make them more likely to enter the ACT market so as to create a competitive market for CTP policies.
However, it is apparent that on the issues critical to the outcome of the present case, there was an unhappy intersection of the confused drafting in the RTG Act and the terms of the New South Wales (NSW) legislation which provided a model for the definition of “motor accident”.
As at the date of the RTTPI Bill, the Motor Accidents Compensation Act 1999 (NSW) (MAC Act) provided a definition of “motor accident” which was very similar to that which appears in s 7 of the RTTPI Act. That definition used the expression “use or operation of a motor vehicle”. It covered matters equivalent to those set out in the RTTPI Act definition of “motor accident”, s 7(c)(i)-(iv). Of significance is that the MAC Act also provided a definition of “use or operation” which was as follows:
use or operation of a motor vehicle includes:
(a) the maintenance or parking of the vehicle, or
(b) the case of a motor vehicle that is not a trailer—the use or operation of a trailer attached to the motor vehicle and a trailer running out of control having become detached from the motor vehicle towing it, or
(c) in the case of a motor vehicle that is a tow truck—the use or operation of an uninsured motor vehicle that is being towed or carried by the tow truck.
Note.As a result of the above definition, a third-party policy for a motor vehicle extends to cover the matters mentioned in the definition.
It is very clear that the intention of this definition was to extend what might otherwise have been found to be the scope of the expression “use or operation” to the matters that are specifically addressed in the definition. Particularly in light of Stephen J’s reasons in St Hubert’s Island (see [22] above), there is no doubt that it is an inclusive rather than exclusive definition.
What appears to have occurred in the Territory is that the drafter of the RTTPI Bill has picked up and used aspects of the NSW provisions without considering, as one would be required to do if drafting from scratch, the drafting of and relationship between the various provisions. That which was taken from the NSW legislation included the expression “use or operation” and the inclusive definition of that term which had the effect of extending its meaning. The drafter has started with the definition of “use” in the RTG Act (the confusion within which is described above) and added to it extensions derived from the NSW definition of “use or operation” that make clear that the concept of use extends to particular additional circumstances. This is illustrated in the following annotation of the RTTPI Act definition disclosing the source of the language:
use, a motor vehicle, includes—
(a) drive, park or stop the vehicle on a road or road related area; and [RTG Act]
(b) maintain the vehicle; and [MAC Act (a) except reference to “park” removed because it is within (a) above]
(c) if the vehicle is towing a trailer—use the trailer while attached to the vehicle; and [MAC Act (b)]
(d) if the vehicle is a tow truck towing or carrying an uninsured motor vehicle—use or operate the uninsured vehicle being towed or carried; and [MAC Act (c)]
(e) anything else prescribed by regulation.
(2) Also, if a trailer being towed by a motor vehicle becomes detached from the vehicle and runs out of control, the use of the vehicle is taken to include the trailer while it is running out of control. [MAC Act (b)]
It is not clear why the drafter has chosen to provide only a definition of “use” as opposed to “use or operation”, but there must at least be a suspicion that, notwithstanding the logic of providing a definition of the compound expression, the drafter has simply defined “use” because:
(a)that was the word defined in the RTG Act;
(b)other provisions in the RTTPI Act refer to use, for example, ss 17 and 20.
Similarly, it is apparent that the drafter has failed to give independent consideration to the purpose of an inclusive definition or its relationship with the ordinary meaning of the words “use or operation”. As a consequence, no proper consideration has been given to the effect of combining the previously existing confusing definition of “use” from the RTG Act with the definition from the MAC Act.
Conclusion
As pointed out above, the submissions of the parties demonstrate that the relevant provisions are ambiguous. The drafting history undermines any contention that there is, in the language of the legislation, a coherent policy.
The pre-existing law did not contain the restriction contended for. The pre-existing law clearly extended CTP cover by authorised insurers (other than the nominal defendant) to accidents that did not occur on a road or road related area.
The extrinsic materials do not support a legislative intention to achieve a significant geographical restriction on the indemnity provided by CTP policies. The background to the RTTPI Act to which I have referred above is not consistent with the proposition advanced by the second defendant that the 2008 legislation was intended to achieve a significant confinement of the circumstances in which the CTP indemnity would apply. Rather, the extrinsic materials referred to indicate subtler means by which it was intended to achieve savings in the CTP scheme. As a consequence, it is not appropriate to interpret the provisions on the basis that there was a clear intention on the part of the legislature to significantly confine the scope of CTP coverage.
Clearly, if the text of the legislation, read with the benefit of all relevant extrinsic materials, had indicated an intention to change the previously existing law by reducing and limiting the scope of coverage of CTP policies then it would be the duty of the court to give effect to that change. While the legislation is ambiguous, the extrinsic materials do not provide any firm foundation for the submission that the legislature intended that any reduction in CTP premiums be achieved by a significant change from the pre-existing law that would limit the coverage of CTP policies in most situations to roads or road related areas. As a consequence, in my view, the ambiguities created by the poor drafting of the legislation should be resolved in a manner that, consistently with the stated legislative intention, does not diminish the compensation available to negligently injured persons. That means that the words “use”, “operation” and “includes” are each given their ordinary meaning at the expense of the qualifying words in paragraph (a) of the definition of “use” in s 8.
In reaching this conclusion I have followed the statutory mandate in s 139 of the Legislation Act rather than given weight to any presumption as to whether the legislature intended to alter common law rights to recover damages for personal injuries arising from motor vehicle accidents. In an area so comprehensively regulated by statute any such presumption has little or no weight and other indicators of legislative intent are more reliable guides: Malika Holdings v Stretton [2001] HCA 14; 204 CLR 290 at [27]-[30]; Gifford v Strang Patrick [2003] HCA 33; 214 CLR 269 at [36]; King v Philcox [2015] HCA 19; 255 CLR 304 at [42].
The result is that with the benefit of full argument on the issue, I reach a conclusion consistent with the position adopted by the second defendant in Haider, that the terms of paragraph (a) of the definition of “use” do not have the effect that the words “use or operation” are confined in relation to a vehicle which is driving, parking or stopping on a road or road related area.
As to this result I say expressly what should be obvious. Poor legislative drafting in an area such as this creates commercial uncertainty for insurers. If the intention of the legislature was to make the ACT market for third-party insurance a more competitive one by attracting additional insurers, then the commercial uncertainty created by poorly drafted legislation would tend to undermine that goal.
Road related area?
Whether or not the Belconnen bus depot is a “road related area” is an issue which would only arise if it was necessary for the plaintiff to come within the scope of paragraph (a) of the definition of “use” in s 8. In light of my conclusion above, it is not necessary to determine that issue. However, in case I am wrong on the statutory interpretation point, I will indicate the conclusions that I would otherwise have reached.
Road related area is defined in the RTG Act. That definition applies to the use of the expression in the RTTPI Act: RTG Act, s 8. “Road” and “road related area” were defined at the time of the accident in the Dictionary to the RTG Act as follows:
road means an area that is open to or used by the public and is developed for, or has as 1 of its main uses, the driving or riding of motor vehicles, but does not include an area that would otherwise be a road so far as a declaration under section 12 (Power to include or exclude areas in road transport legislation) declares that this Act does not apply to the area.
road related area means—
(a) an area that divides a road; or
(b) a footpath or nature strip adjacent to a road; or
(c) an area that is open to the public and is designated for use by cyclists or animals; or
(d) an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles; or
(e) a shoulder of a road; or
(f) any other area that is open to or used by the public so far as a declaration under section 12 (Power to include or exclude areas in road transport legislation) declares that this Act applies to the area;
but does not include an area that would otherwise be a road related area so far as a declaration under that section declares that this Act does not apply to the area.
The accident did not occur on a road. Rather, it occurred on a footpath between an area used for parking and the access road. The plaintiff fell onto the road as a result of the accident. Therefore, the relevant paragraph of the definition of road related area is (b) which refers to “a footpath … adjacent to a road”. Because this definition refers to a road, it picks up the requirement that it be an area “that is open to or used by the public…”. It is this issue which was central to the submissions made by the second defendant. The second defendant contended that the area within the Belconnen bus depot was not “open to or used by the public”. That raised a discrete factual issue.
In Schubert v Lee (1946) 71 CLR 589 at 592 the reasons of the court explain the expression “open to or used by the public” in the following way:
The words “open to or used by the public” are apt to describe a factual condition consisting in any real use of the place by the public as the public—as distinct from use by licence of a particular person or only casual or occasional use. It may be necessary to distinguish places open to members of the public as such from places left open by the owner but obviously intended only for the use of a particular description of person, for example, visitors to his shop or other premises. Prima facie the words of the section mean streets, &c., which actually are open to or used by the public, so that there is some need for protection of the public in the use of such streets, &c.
The principles to be applied to the resolution of that issue are, usefully articulated in the decision of the NSW Court of Appeal in Ryan v Nominal Defendant [2005] NSWCA 59; 62 NSWLR 192. That case involved an area of private land in relation to which the owner had taken significant but ineffective steps to exclude trespassers. Santow JA (with whom McColl JA agreed) discussed in considerable detail the authorities on the expression “open to or used by the public”. So far as openness was concerned, his Honour said (at [76]):
Whether a place can properly be said to be “open to the public” is the product in each case of a subtle dynamic between the two fundamental concepts which the potentiality of openness entails: potential for physical use and potential for lawful use.
His Honour put forward a tentative taxonomy at [82] which distinguished between public places, private places to which the public is invited and other private property. So far as the third category was concerned, his Honour said:
In the case of a place which the public has no entitlement or invitation to use, it can only be said to be “open to the public” if it is in fact used by members of the public, the owner having failed consistently to maintain a prohibition on that use, though the users be technically trespassers.
It is possible that, although the extent of use may not be sufficient to demonstrate “use by the public” for the purposes of the alternative concept in the statute, it may, in conjunction with other evidence, allow the court to infer that the place is open to the public because the potential factual use is the stronger element than the absence of permitted use.
So far as “use by the public” is concerned, his Honour said (at [84]-[85]):
To answer this question, matters of fact and degree are critical. If the use is but casual or occasional the place may be held not to be used by the public.
There are clearly two elements to the expression “used by the public”. First, there must be an actual use of the relevant place. Second, the use must be by the public. The relationship between the two elements is a symbiotic. Although the intrinsic generality of use is narrowed by reference to who are its users, whether or not those users are in fact the public is a question to which the nature and intensity of the use is relevant.
Later in his reasons, his Honour said (at [91]):
That analysis should not be overly refined. The key to the High Court judgment in Schubert v Lee is the proposition that whether a place is used by the public is a factual condition. It is the sort of question that could fairly be put to a jury to answer using their common sense and knowledge of community standards. What the expression “use by the public” connotes is a sense of members of the general community variously using the place for whatever purposes it is adapted, with some degree of frequency and intensity. All of these things are, to a considerable extent, matters of impression though their appraisal must be on a principled basis. That said, it is not possible to lay down a general rule as to what feature in each individual case will tip the balance.
In that case the track in question was on private property from which the owner had attempted to exclude the public. The track was however used by various different people for a variety of purposes and the prohibition by the owner was quite ineffective. His Honour said (at [134]):
The variety and frequency of the usage, and the ineffectiveness of measures to prevent it, were sufficient to countervail the trespassory nature of the uses as would otherwise tell against a “use by the public”.
Giles JA dissented, emphasising the attempts by the owner to exclude persons from the property and describing the use as a “defiant use”. The point of difference between Giles JA and the majority was the emphasis placed upon the trespassory character of the use.
To answer the factual question in this case, namely whether the access road was “open to or used by the public”, “matters of fact and degree are critical”. That factual issue is to be determined by reference to:
(a)the photographic evidence as to the signage and fences around the property;
(b)the evidence of the plaintiff; and
(c)the evidence of Mr Barker, a bus driver at the Belconnen depot.
My findings on that factual issue are as follows:
(a)The Belconnen bus depot was located on Block 6, Section 14, Belconnen. That was the subject of a Crown lease to the Territory which commenced on 26 February 1998 with a term of 99 years.
(b)It is surrounded by fences which are taller than a person and have either barbed wire or spikes at the top.
(c)There were two relevant entrances to the property: the entrance from Cohen Street at the southern end of the property and the entrance onto Rae Street at the northern end of the property.
(d)At the Cohen Street entrance, there were the following signs with the following text:
(i)At the turn off from Cohen Street:
a. on the left-hand side of the inbound carriageway, “AUTHORISED VEHICLES ONLY”, “NO PUBLIC ACCESS AUTHORISED VEHICLES ONLY BEYOND THIS POINT”; and
b. on the right-hand side of the inbound carriageway, “ACTION Danger No Pedestrian Access”.
(ii)At the fence line of the premises:
a. on the median strip between the two carriageways “ACTION Danger No Pedestrian Access”;
b. on the right-hand side of the carriageway next to the fence “ACTION Danger No Pedestrian Access”; and
c. inside the gate and on the far side of the outbound carriageway but visible from the gate is a sign which says, “ACTION BELCONNEN BUS DEPOT”. It has a schematic plan with a label “YOU ARE HERE” and the number 1 in a position corresponding to the administration building. It then says, “1. ALL ENQUIRIES [FOLLOW YELLOW LINE ON FOOTPATH] HOURS OF OPERATION 8:30am - 4:30pm”.
The arrangement and layout of these signs is shown in Exhibit 4 and Exhibit 1, 43-45.
(e)At the Rae Street entrance there were automatically operated gates which remained closed to potential entrants until a swipe card was used. There were placed on the gate signs containing the following text:
(i)on the left-hand side of the gate “STRICTLY NO PUBLIC ACCESS ACTION EMPLOYEES ONLY UNAUTHORISED VEHICLES TOWED AWAY” and “HIGH VISIBILITY CLOTHING OR VEST MUST BE WORN IN THIS AREA”;
(ii)on the inbound gate “ATTENTION EVERY DRIVER MUST SWIPE TO ENTER DO NOT TAILGATE”; and
(iii)on the right-hand side of the gate “ACTION AUTHORISED ACTION VEHICLES ONLY”.
The arrangement of these signs is shown in Exhibit 2. There is also another area where buses may exit to Josephson Street. There was no evidence about the signage at this point.
(f)Persons who were not employees working at the depot had been seen on the premises. The plaintiff said that at the time of the accident:
(i)there was no security person on the gate;
(ii)he had seen one individual who was walking through taking a shortcut to the service station and “we bailed him up”, told him that he couldn’t come through and to turn around and walk outside the gate;
(iii)on two occasions there had been intoxicated people sleeping in the back of buses when they came back from bus runs who had not been seen by the driver when the driver left the bus;
(iv)he had not seen anyone, apart from staff members, attend the gym in the administration building;
(v)he had seen delivery vehicles, maintenance vehicles and garbage trucks attend the premises;
(vi)he had seen rehabilitation providers coming in for work-related compensation cases who would attend the administration building; and
(vii)in relation to lost property, that was put in a hopper in the muster room and then taken to the Tuggeranong Depot by a staff member. There were many occasions when members of the public came to the Belconnen bus depot looking for lost property.
Mr Barker said that:
(i)when he first came for the interview for the job at the depot in 2007, he parked outside the depot and walked in through the Cohen Street entrance;
(ii)the Cohen Street gate had not been monitored so far as he was aware;
(iii)once in a while, he saw people that he did not think were employees:
a. he could remember two occasions when he saw people who were looking for lost property; and
b. he could also recall on one occasion assisting a person, who he believed to be a tradesman, with directions.
In my view, the premises are not open to the public. On the contrary, the land was leased land and the lessee had taken steps which indicate that there was no invitation to the public to enter the premises. In those circumstances, whether or not it can be said to be open to the public is largely dependent upon it being used by members of the public, the owner having failed consistently to maintain a prohibition on use: Ryan at [82(3)].
So far as use by the public is concerned, this aspect of the definition recognises that there may be circumstances where a place is not open to the public but is in fact used by the public. The evidence is not sufficient in the present case to disclose any acquiescence on the part of the landowner to use by members of the public as opposed to invitees. There is evidence that invitees entered the premises for particular purposes, for example, tradesmen and garbage collectors. There is evidence of some use by persons seeking to locate lost property. The evidence does not disclose whether the persons seeking lost property were invitees or unannounced visitors who failed to heed the signs at the gate. In any event, given the very limited extent of use by a specific class of persons who were possibly not invitees, that is insufficient to establish that the premises were used by members of the public. Further, that fact is not sufficient to establish that the premises were open to the public.
For those reasons, had it been necessary to determine the issue, I would have found that the access road was not an area that was open to or used by the public and as a consequence the footpath where the accident occurred was not a footpath adjacent to a road for the purposes of paragraph (b) of the definition of road related area. I would therefore have found that the place where the accident occurred was not a road related area for the purposes of paragraph (a) of the definition of use in s 8 of the RTTPI Act.
Does s 44 of the SRC Act eliminate the liability of the defendants?
As at 29 October 2014, ss 44 and 45 of the SRC Act provided:
44Action for damages not to lie against Commonwealth etc. in certain cases
(1) Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of:
(a) an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth, Commonwealth authority or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or
(b) the loss of, or damage to, property used by an employee resulting from such an injury;
whether that injury, loss or damage occurred before or after the commencement of this section.
(2) Subsection (1) does not apply in relation to an action or proceeding instituted before the commencement of this section.
(3) If:
(a) an employee has suffered an injury in the course of his or her employment; and
(b) that injury results in that employee’s death;
subsection (1) does not prevent a dependant of that employee bringing an action against the Commonwealth, a Commonwealth authority, a licensed corporation or another employee in respect of the death of the first‑mentioned employee.
(4) Subsection (3) applies whether or not the deceased employee, before his or her death, had made an election under subsection 45(1).
45Actions for damages—election by employees
(1) Where:
(a) compensation is payable under section 24, 25 or 27 in respect of an injury to an employee; and
(b) the Commonwealth, a Commonwealth authority, a licensed corporation or another employee would, but for subsection 44(1), be liable for damages for any non‑economic loss suffered by the employee as a result of the injury;
the employee may, at any time before an amount of compensation is paid to the employee under section 24, 25 or 27 in respect of that injury, elect in writing to institute an action or proceeding against the Commonwealth, the Commonwealth authority, the licensed corporation or other employee for damages for that non‑economic loss.
(2) Where an employee makes an election:
(a) subsection 44(1) does not apply in relation to an action or other proceeding subsequently instituted by the employee against the Commonwealth, the Commonwealth authority, the licensed corporation or the other employee for damages for the non‑economic loss to which the election relates; and
(b) compensation is not payable after the date of the election under section 24, 25 or 27 in respect of the injury.
(3) An election is irrevocable.
(4) In any action or proceeding instituted as a result of an election made by an employee, the court shall not award the employee damages of an amount exceeding $110,000 for any non‑economic loss suffered by the employee.
(5) The election by an employee under this section to institute an action or proceeding against the Commonwealth, a Commonwealth authority, a licensed corporation or another employee does not prevent the employee, before, or instead of, formally instituting such action or proceeding, doing any other thing that constitutes an action for non‑economic loss.
46 Notice of common law claims against third party
(1) Where:
(a) compensation is payable under this Act in respect of the death of an employee, an injury to an employee or the loss of, or damage to, property used by an employee;
(b) the death, injury, loss or damage occurred in circumstances that appear to create a legal liability in a person (other than the Commonwealth, a Commonwealth authority, a licensed corporation or another employee) to pay damages in respect of the death, injury, loss or damage; and
(c) the employee or a dependant of the deceased employee, as the case may be, makes a claim against that person for the recovery of such damages;
the employee or dependant must, as soon as practicable but in any event not later than 7 days after the day on which he or she first became aware of the claim, notify Comcare in writing of the claim.
Penalty: 5 penalty units
(2) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
The effect of s 45 is that where an election is made, proceedings may be brought to recover non-economic loss, but the amount that may be recovered is limited to $110,000. Where such an election is made, compensation is no longer payable under ss 24, 25 and 27. Those provisions require payment to be made for injuries resulting in permanent impairment. Section 24 provides the basic payment for permanent impairment. Section 27 provides for the payment of additional compensation in accordance with a formula. Section 25 requires the making of interim payments of compensation in certain circumstances. These provisions are separate and distinct from the obligation upon Comcare to make payments of compensation for incapacity for work: s 19, and payments for certain household services: s 29. These remain unaffected by an election to sue for non‑economic loss. The attractiveness of making an election has reduced over time as a result of the non-indexation of the maximum amount that may be recovered for damages for non-economic loss whereas the maximum awards under ss 24 and 27 have been increased over time as a result of indexation under s 13 of the SRC Act.
Submissions of the second defendant
The submissions of the second defendant were to the effect that s 44 applied, that there had been no election under s 45 and therefore the plaintiff had no cause of action against the first defendant. It therefore contended that the second defendant could have no liability to the plaintiff because it was only liable to indemnify the first defendant to the extent, if any, he was liable to the plaintiff. Specifically, the second defendant contended:
(a)the plaintiff was employed by the Territory;
(b)the Territory was declared to be a “Commonwealth authority” for the purposes of s 44 as at the date of the accident;
(c)the plaintiff’s injury occurred in the course of his employment;
(d)the driver was an employee of the Territory;
(e)but for s 44 of the SRC Act the Territory would have been liable, vicariously or otherwise, for damages in respect of the injury;
(f)no election had been made under s 45(2) of the SRC Act; and
(g)section 44 therefore denied the existence of a cause of action and prevented any right of action arising against the first defendant.
The basis upon which the second defendant contended that the Territory would have been liable for damages in respect of the injury to the plaintiff was as follows:
(a)As an employer and occupier: the Territory was responsible directly and vicariously for any decision of the first defendant (as manager of the depot) to park his car in an unsafe position and was directly responsible as occupier for permitting it to be so parked. The Territory was obliged to take reasonable care as the plaintiff’s employer to provide the plaintiff with a safe place and safe system of work and, as an occupier, with safe premises, which included taking precautions against the type of accident that occurred. Although a number of measures might have been used, the simplest would have been not allowing the driver to park his car out nose-in or perhaps at all in the particular location.
(b)Vicarious liability for the conduct of the first defendant: the first defendant was in the course of his employment by the Territory at the time of the incident and the Territory was liable for any casual act of negligence by him.
(c)Vicarious liability based upon Soblusky v Egan: the first defendant was the agent of the owner of the vehicle and was liable as such for any casual act of negligence by him based on the decision in Soblusky v Egan.
Submissions of the plaintiff
The plaintiff accepted that subject to s 45, s 44 would have the effect of denying the existence of a cause of action in relation to circumstances to which it applied. The plaintiff did not contend that he had made an election under s 45(2). Instead, the plaintiff contended that s 44 had no application because the injury which he suffered was not “an injury in respect of which [the Territory] would, but for [s 44(1)], be liable (whether vicariously or otherwise) for damages”.
The plaintiff made a submission based upon the decision of the Full Court of the Supreme Court of South Australia in Sutherland v Federal Airports Corp (1998) 72 SASR 356 that it was not the intention of the legislature when enacting Pt IV of the SRC Act to deny to government employees common law rights following a motor accident whenever the negligent party was also a government employee. It was not clear how this general submission about legislative intention or the decision in Sutherland related to the balance of the plaintiff’s submissions.
The plaintiff then submitted that the second defendant had not proved that the Territory would have been liable vicariously or otherwise for damages and hence s 44(1) did not extinguish the plaintiff’s cause of action. The plaintiff addressed the two means by which the second defendant pleaded in its Amended Defence that the Territory would have been liable, namely, providing an unsafe place or system of work or being vicariously liable for the conduct of the first defendant.
So far as an unsafe place or system of work was concerned, the plaintiff submitted that the evidence was insufficient to establish either. The plaintiff submitted:
(a)The first defendant was performing a normal everyday task whenever a motor vehicle is parked nose or rear end in. The situation is equivalent to parking between cars in an undercover carpark.
(b)When reversing out of such a situation, the overwhelming obligation is on the driver to be satisfied that the path behind the driver is clear. In this case the first defendant did not give evidence to provide any explanation as to why he did not keep a proper lookout or why he could not do so. In those circumstances, the most likely conclusion was that the accident was caused by a casual act of negligence on his part by commencing to drive without keeping a proper lookout.
(c)There was no evidence of a reasonably practicable means of avoiding the risk or reducing the consequences of injury. The alternatives suggested by the second defendant were unsupported by any evidence and were neither necessary nor practicable.
(d)There was no evidence that the Territory gave permission for or acquiesced in the parking of the vehicle in the way it was parked on that particular day.
(e)There was no evidence that the driver’s view of the pedestrian was blocked at the point of impact.
(f)There was no evidence entitling a finding that the presence of the building on the first defendant’s right as he reversed prevented him from seeing the plaintiff at the point of impact.
(g)Insofar as the second defendant pleaded in its Amended Defence that there should have been measures such as mirrors, signs, line markings, warning lights, automatic booms or alternative painted routes to the administration building, those were not pursued by the second defendant in submissions and would not satisfy the requirement of reasonableness.
So far as the claim of vicarious liability was concerned, the plaintiff submitted:
(a)There was no evidence of the identity of the first defendant’s actual employer, the terms of his employment or his duties, the terms on which the vehicle involved in the accident was entrusted to the first defendant or the extent of direction and control exercised by the first defendant’s employer.
(b)Based on the explanation of the decision in Soblusky v Egan in Lloyd v Ryan Borg by his Tutor NSW Trustee and Guardian [2013] NSWCA 245; 84 NSWLR 652, it was not possible to say that the first defendant was acting in the course of his employment so as to attract the operation of the doctrine of vicarious liability.
Issues
There was no issue that the plaintiff was an employee of the Territory or that the Territory was a Commonwealth authority for the purposes of the SRC Act. The issues that need to be determined in order to address this aspect of the second defendant’s defence are as follows:
(a)Who employed the first defendant?
(b)Did the Territory fail to provide a safe place and system of work?
(c)Was the Territory vicariously liable for the negligence of the first defendant?
(d)Was the Territory vicariously liable because of Soblusky v Egan?
Who employed the first defendant?
During the running of the case, counsel for all parties appeared to conduct the case on the basis that the first defendant was an employee of the Territory. Most obviously, the position as between plaintiff and first defendant was described as being “an employee versus employee situation” leading to agreement between the plaintiff and first defendant as to how the proceedings were to be disposed of if the first defendant did not have an indemnity from the second defendant. Notwithstanding this, the plaintiff, in submissions on the SRC Act point, contended that there was no evidence of the identity of the actual employer of the first defendant or his duties.
Because of the manner in which the case was run there was limited evidence on this point, but that evidence is sufficient to establish that in common with the plaintiff, the employer of the first defendant was the Territory. The plaintiff’s evidence was that the first defendant was one of the administration staff at the Belconnen bus depot. He was only there a short time before the accident occurred. The depot was land the subject of a lease to the Territory. There was no evidence that the bus depot was operated by any entity separate from the Territory. Medical reports which were tendered by the parties also disclosed the first defendant’s position. In those reports the first defendant is described to Dr Le Leu as the “North Region Area Manager” (Exhibit 1, 96), to Dr Antonella Ventura as “his manager” (Exhibit 3, 2) and to Dr Paul Spira as the “North Regional area manager” (Exhibit 3, 18). The reports were not subject to any limitation as to the use to which the histories contained therein could be put and hence those histories are some evidence of the facts stated therein: Evidence Act 2011 (ACT), s 60. That the histories are admissible as evidence of the facts does not require that they be given weight that, in the circumstances, they do not deserve: Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v State of Queensland [2000] FCA 1548 at [26], but in the circumstances of this case where the issue was treated, up until the point of submissions, as uncontroversial, it is appropriate to give weight to the evidence as to the employment and role of the first defendant referred to in these histories. That evidence is sufficient to establish first that the first defendant had the same employer as the plaintiff; second, that the employer was the Territory; and third, that the first defendant was a manager responsible for (at least) the Belconnen bus depot.
Did the Territory fail to provide a safe place and system of work?
In Exhibit 1 there was a photograph of the location where the accident occurred. It shows a paved area outside the administration building and a door which led to the office where the first defendant worked. The paved area does not appear to be designed as a parking area in that there was no curb crossing where the curb met the road. However, it is clear from the photograph and from the plaintiff’s evidence that it was, in fact, used as the first defendant’s regular parking place. It is clear that the vehicle would be parked parallel to the side of the building and either facing inwards or out towards the road.
There was no evidence of a number of matters which would be of potential significance in deciding whether the Territory had provided a safe system and place of work:
(a)Whether the vehicle involved in the accident was driven by the first defendant for the purposes of his work or only to get to and from work.
(b)How many times per day it would enter and leave the parking area.
(c)Whether the first defendant was driving the vehicle in order to go home at the end of the day or for some other reason.
(d)Whether the path of travel of the vehicle immediately prior to the accident was the same as or different to the path of travel suggested by the tyre marks shown in the photograph in Exhibit 1.
(e)The level of pedestrian traffic along the footpath which was required to be crossed in order to access the road from the parking area.
(f)The reason why the first defendant parked in this place rather than in one of the other parking areas further away from the administration building.
(g)How long this area had been used by the first defendant or his predecessor for the purposes of parking.
(h)Whether staff working at the premises were aware of the use of that area for parking.
(i)Any other occasion upon which there was an accident arising at this location or a near miss involving a vehicle and a pedestrian.
In relation to the accident that occurred, there was no evidence from the first defendant as to the reason why it occurred. The only evidence was that immediately after the accident the first defendant said to the plaintiff, “Sorry, I didn’t see you”. That admission says nothing about the reason why the first defendant didn’t see the plaintiff or anything else about the manner in which he was driving.
During that post-accident conversation, some information was provided about how the first defendant usually used the parking spot. The plaintiff said to the first defendant that if he had of reversed his car in, the plaintiff “would’ve had half a chance” of avoiding being struck and the first defendant responded by saying that it was the first time he'd driven nose-in all week. From that admission, combined with the evidence that this was his regular parking spot, it is possible to find that it was his usual practice to reverse into the parking place and that parking nose-in was a departure from his usual practice.
The submission made on behalf of the second defendant was that the permission for, or acquiescence in, any parking in that area was negligent, especially when pedestrians had been led to the spot by the design of a footpath that ran adjacent to the administration building and created a conflict with the space habitually used by the manager for parking. The submission referred to Campbelltown City Council v Bussell [2002] NSWCA 410; 37 MVR 563.
In order to establish negligence it would be necessary to establish the matters required by s 43 of the Civil Law (Wrongs) Act 2002 (ACT). In the present case, there was clearly a foreseeable risk that an injury might occur to a pedestrian using the footpath when it was crossed by the vehicle that had been parked next to the building: s 43(1)(a). Having regard to the relationship between the parking area, the footpath and the corner of the building, that was a risk which was not insignificant: s 43(1)(b). The critical question is whether a reasonable person in the Territory’s position would have prevented parking in that area or adopted one of the other pleaded measures (signage, a boom gate, a mirror, relocation of the pathway): s 43(1)(c).
I am not satisfied that a reasonable person in the Territory’s position would have taken one or more of those precautions. I reach that conclusion in light of the very significant limitations on the evidence about how and why the area was used in the manner that it was.
The parking arrangement seemed somewhat ad hoc in that there was no properly constructed curb crossing to permit parking in the area. Because the parking place immediately adjoined the side of the building and required the crossing of the footpath in order to reach the roadway, it created a potential conflict between pedestrians and a car entering or exiting the parking place.
Having said that, insofar as a vehicle would depart from the parking place driving backwards, contrary to the usual practice, the situation was not so different to that routinely encountered in carparks when reversing out of a parking place with cars on either side or in residential areas in Canberra when cars reverse out of a driveway in circumstances where sightlines are obscured by vegetation. In assessing the reasonableness of permitting parking in the area or taking additional measures to warn pedestrians or control the vehicle in the context of this workplace, it is relevant to have regard to the fact that the circumstances are not very different from circumstances encountered elsewhere.
Of critical significance in the present case, where the second defendant bears an onus of proof, are the limitations on the evidence on this issue. Issues upon which there was no evidence are those outlined at [76(a)-(h)]. Each of those matters would have been matters that it was necessary to consider in order to assess the probability that harm would arise if the suggested precautions were not taken: s 43(2)(a). The absence of evidence on those issues means that it is not possible to make that assessment or conclude that a reasonable person would have taken those measures.
Had the second defendant established a breach of duty, then it would have been necessary to establish that the failure to take the identified measures was a necessary condition of the happening of the harm.
Was the Territory vicariously liable for the negligence of the first defendant?
Whether the Territory would be vicariously liable for the actions of the first defendant depends upon whether the first defendant was acting in the course of his employment when his vehicle struck the plaintiff. In this case there is no evidence as to the reason why the first defendant was moving his vehicle. The possibilities appear to be that he was doing something in the course of his employment, he was going out on a private excursion or he was leaving the premises in order to go home. Clearly enough, if he was driving the vehicle in order to do something for the purposes of his employment, he was acting in the course of his employment when he struck the plaintiff. If he was leaving work to go home or on some private errand, the question is more difficult.
The issue if he was travelling home would be whether he was acting in the course of his employment at the time when, although he had ceased work for the day, he was still on the employer’s premises. That question would need to be considered in circumstances where the employer provided a parking space within the workplace where the first defendant was permitted to park.
As I will shortly illustrate, the authorities do not provide a clear answer to this question. What then is the principle underlying the imposition of vicarious liability? Underlying the imposition of vicarious liability are policy choices concerning the distribution of losses for the negligent conduct of employees: Fleming JG, The Law of Torts (3rd ed, Law Book Co Ltd, 1965) at 346. The authorities leave these policy decisions largely unarticulated. The plurality judgment of the High Court in Prince Alfred College Inc vADC [2016] HCA 37; 258 CLR 134 articulates the uncertain foundations of vicarious liability and the absence of a coherent general theory for the vicarious liability of employers:
39 Vicarious liability is imposed despite the employer not itself being at fault. Common law courts have struggled to identify a coherent basis for identifying the circumstances in which an employer should be held vicariously liable for negligent acts of an employee, let alone for intentional, criminal acts. There have been concerns about imposing an undue burden on employers who are not themselves at fault, and on their business enterprises. On the other hand, the circumstances of some cases have caused judges to exclaim that it would be “shocking” if the defendant employer were not held liable for the act of the employee[55]. No doubt largely because of these tensions vicarious liability has been regarded as an unstable principle, one for which a “fully satisfactory rationale for the imposition of vicarious liability” has been “slow to appear in the case law”[56].
[55] Lloyd v Grace, Smith & Co [1912] AC 716 at 738 per Lord Macnaghten.
[56] Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 37 [35]; [2001] HCA 44. See also Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 at 166 [11]; [2006] HCA 19.
40 Vicarious liability has not to date been regarded as a form of absolute liability, although policy choices, and the questions posed for the determination of vicarious liability, can lead in that direction. The traditional method of the common law of confining liability, in order to reflect some balance between competing interests, is the requirement that the employee's wrongful act be committed in the course or scope of employment[57]. At the least this provides an objective, rational basis for liability and for its parameters.
[57] This is not confined to the common law: see Markesinis and Unberath, The German Law of Torts: A Comparative Treatise, 4th ed (2002), pg 696 as to the equivalent “in the exercise of the function assigned to him”.
41 Difficulties, however, often attend an enquiry as to whether an act can be said to be in the course or scope of employment. It is to some extent conclusionary and offers little guidance as to how to approach novel cases. It has the added disadvantage that it may be confused with its use in statutes, where it has a different operation. In statutes providing compensation for injury suffered by employees it operates as a limit upon a right to compensation[58]; in the common law it is an essential requirement for vicarious liability. But it has not yet been suggested that it should be rejected. It remains a touchstone for liability.
[58] See, eg, Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 6, 6A.
(Footnotes included beneath the relevant paragraph.)
Those comments were made in the context of the limits of vicarious liability for sexual abuse of schoolchildren. However, as the cases referred to in the passages above make clear, they are equally applicable to any question about the margins of vicarious liability. In the absence of a general basis for liability, the judgment in ADC at [46] suggests the adoption of the orthodox common law approach of stumbling slowly towards a principle:
Since the search for a more acceptable general basis for liability has thus far eluded the common law of Australia, it is as well for the present to continue with the orthodox route of considering whether the approach taken in decided cases furnishes a solution to further cases as they arise. This has the advantage of consistency in what might, at some time in the future, develop into principle. And it has the advantage of being likely to identify factors which point toward liability and by that means provide explanation and guidance for future litigation.
In the passage from ADC set out at [88] above, the plurality draws attention to the use of the expression “in the course of employment” in workers compensation statutes and emphasises that in such statutes that language performs a different role, namely, defining a limitation upon a statutory right to compensation. Care must be taken when examining authorities concerning what conduct might be “in the course of employment” to distinguish between those which involve the interpretation of that expression in workers compensation or other statutes and those where the common law concept of vicarious liability is being considered. It may not be appropriate to use the authorities on particular statutory language for compensation of injured workers to determine the circumstances which will give rise to vicarious liability of an employer for the tort of an employee.
For this reason it is possible to largely set aside those cases relied upon in the submissions of the second defendant in support of the proposition that making ingress and egress to work premises involves the employee acting in the course of employment. Each of those authorities related to a question as to the scope of the employer’s liability to make compensation payments under workers compensation legislation: Weaver v Tredegar Iron and Coal Co Ltd [1940] AC 955 (Workmen’s Compensation Act 1925 (UK)); Learmonth v H&A Bag Company [1944] WCR 131 (Workers’ Compensation Act 1926 (NSW)); Grech v Commonwealth (1959) 1 DCR (NSW) 108 (CommonwealthEmployees’ Compensation Act 1930 (Cth)); Foster v Edwin Penfold & Co Ltd (1934) 27 BWCC 240 (Workmen’s Compensation Act 1925 (UK)); Victorian WorkCover Authority v Jones Lang Lasalle (Vic) Pty Ltd [2012] VSC 412 (Accident Compensation Act 1985 (Vic)).
Notwithstanding their lack of direct relevance it can be noted that those authorities would be consistent with the proposition that a worker in the position of the first defendant, having finished work and start on his way home, remains in the course of his employment while he is traversing the premises on which he has been working and only ceases when he reaches a place to which the public have a right of access such as a public street: Weaverv Tredegar Iron and Coal Co Ltd at 983 per Lord Romer.
The submissions of the plaintiff correctly pointed out that the cases referred to “are all matters where a [worker] is seeking compensation and do not assist the Court”. The plaintiff made the submission that “We do not know whether [the first defendant] was doing something in the course of his employment, on a private excursion or on a journey home. If on a journey home, he was not travelling in the course of his employment”. No authority is cited for the latter proposition and, while it might be a proposition which is accurate once the employee left the employer’s premises, it does not address the situation where the employee is travelling through those premises with an intention to depart for home.
In Smith v Stages [1989] 1 AC 928, the issue was whether an employee who had been paid wages for the time taken to travel to and from a worksite was acting in the course of his employment when he chose to do so by car and had an accident. Lord Goff articulated (at 936) “the simple proposition that, in ordinary circumstances, when a man is travelling to or from his place of work, he is not acting in the course of his employment”. He identified however that “Nice points can arise about the precise time, or place, at which he may be held to have arrived at work”. Similarly, “he is not acting in the course of his employment when he is travelling home after his day’s work is over”. He then went on to address (at 937) the more difficult case with which he was faced, posing the question: “But how do we distinguish the cases in this category in which a man is acting in the course of his employment from those in which he is not? The answer is, I fear, that everything depends on the circumstances.” The judgment of Lord Lowry accepted (at 954) that the test in Vandyke v Fender [1970] 2 QB 292 as the correct test in situations to which it applies and identified as one of his principles that “An employee travelling from his ordinary residence to his regular place of work, whatever the means of transport and even if it is provided by the employer, is not on duty and is not acting in the course of his employment …” (at 955-956).
In Commonwealth v Cocks (1966) 115 CLR 413, the High Court rejected the proposition that a Commonwealth public servant who was driving from Canberra to Melbourne to take up employment there was in the course of his employment so as to make the Commonwealth vicariously liable for his negligence even though he had been authorised to travel in his own car rather than by “regular means of conveyance” and hence was entitled to mileage allowance for the journey. The court said that that authorisation in no way enlarged the scope of his employment as an officer so as to comprehend the driving of the motor vehicle.
The present case raises what Lord Goff described as a “nice” issue as to precisely when the first defendant ceased to be in the course of his employment. Did he do so upon departing for home or did he only do so upon leaving the premises? Assuming that his working hours had concluded, he was not, in a contractual sense, in the course of his employment. Nevertheless, he was engaged in an activity which was incidental to his period of employment, namely, driving his car from the place where it had been parked in a carpark provided by his employer to the relevant exit. This was an activity occurring on premises controlled by his employer and in relation to which the employer had the capacity to control his conduct. That contrasts with the position once he entered upon a public street. In my view, the element of control able to be exercised by his employer over the conduct of the employee whilst still on the premises of the employer and while performing an activity which, in a general sense, was authorised by his employer is sufficient to warrant the imposition of vicarious liability for his conduct upon his employer. While the modern doctrine of vicarious liability is now largely untethered from its historical roots: see Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; 226 CLR 161 at [11], [20] and [33], control over the conduct of the negligent person is a significant factor in determining whether the relationship is one which gives rise to vicarious liability (even though it does not provide itself a firm foundation for the doctrine generally: see Atiyah PS, Vicarious Liability in the Law of Torts (Butterworths, 1967) at 16). It is control which provides the point of distinction between the presence of vicarious liability for employees and the absence of such liability for independent contractors and explains the result in Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 and Sweeney. It is appropriate that it provides the discriminating factor in the present case.
If the first defendant was embarking upon a private errand but intending to return to work then, in my view, the position is the same. He was, during the portion of his journey from his authorized parking place to the boundary of the site, subject to the control and direction of his employer and that provides a sufficient basis for the imposition of vicarious liability upon his employer during that limited time.
Should it be of significance, the possibility that the first defendant was engaged in a private errand is the least likely of the three alternative scenarios that I have identified. It is certainly more likely than not that the first defendant was engaged in a journey for the purposes of his employment or going home as opposed to embarking on some private errand.
The position is, therefore, that either the first defendant was driving in his vehicle for some purpose associated with his employment or he was departing from the premises following the conclusion of his working day or for some other private purpose. In any of those circumstances the Territory, being his employer, would be vicariously liable for his conduct and hence would, if sued, be liable to the plaintiff.
The consequence of this is that the circumstances of the present case are within the scope of s 44 of the SRC Act because the injury sustained by the plaintiff was an injury for which the Territory, being a “Commonwealth authority” would but for s 44(1) have been liable for damages. This means that s 44(1) applies and has the effect that “an action … for damages does not lie against” the first defendant in relation to the injury sustained by the plaintiff.
Was the Territory vicariously liable because of Soblusky v Egan?
The second defendant also submitted that the first defendant “was the agent of the owner of the vehicle, the Territory Government, which was liable as such for any casual act of negligence by him”. This submission relied upon the decision in Soblusky v Egan.
The decision in Soblusky was that a bailee of the vehicle (who was intended to become the owner) who was present in the vehicle but asleep at the relevant time was liable for the negligence of the driver of the vehicle. The principle explained in Soblusky was articulated as follows (at 231):
It means that the owner or bailee being in possession of the vehicle and with full legal authority to direct what is done with it appoints another to do the manual work of managing it and to do this on his behalf in circumstances where he can always assert his power of control. Thus it means in point of law that he is driving by his agent. It appears quite immaterial that Soblusky went to sleep. That meant no more than a complete delegation to his agent during his unconsciousness. The principle of the cases cited is simply that the management of the vehicle is done by the hands of another and is in fact and law subject to direction and control. This therefore must be regarded as an obvious case.
The decision in Soblusky was criticised in Scott v Davis [2000] HCA 52; 204 CLR 333. In that case the principle in Soblusky was sought to be extended to circumstances where an injured passenger on a joy flight sought to hold the owner of the aeroplane vicariously liable for the negligence of the pilot. A majority of the High Court found that the owner was not liable. Despite the effective criticism of the basis of the decision in Soblusky (most particularly in the judgment of Gummow J), no party in Scott sought to have Soblusky overruled and it remains binding until the High Court decides otherwise: Lloyd at [55].
However, the judgments in Scott did clarify what is required for an owner of a vehicle to have “control” of the vehicle sufficient for the imposition of vicarious liability for the conduct of a driver. In particular:
(a)The reference to control cannot include a reference to a right which is not, in practice, capable of being exercised: Gleeson CJ at [14].
(b)It is not sufficient that the owner or bailee have retained “general control” because unless the notion of control is given considerable content it means little more than ownership (or, in the case of bailment, possession): Gummow J at [258].
(c)The reference to “always assert his power of control” in the passage from Soblusky implies a need for a real and continuing power for effective intervention: Callinan J at [357] (although that is difficult to square with the actual decision in Soblusky which impose liability on the somnolent Mr Soblusky).
Does the decision in Soblusky mean that the Territory would be liable in the present case? That involves two issues, first whether the ownership of the vehicle has been established and the second whether the requirements of Soblusky as explained in Scott are met in the present case. So far as ownership is concerned, the evidence as to ownership of the vehicle was less than satisfactory. No party directly addressed the issue of ownership or how, if not the owner, the first defendant came to be entitled to drive the vehicle. There were no business records tendered to establish ownership of the vehicle and no admissions made. There was one ambiguous answer given by the plaintiff in evidence in which he described the vehicle as owned by the “ACT government”. There was a similar description of it by the plaintiff as the first defendant’s “govie” vehicle. There was also a further written statement by him that the owner of the vehicle was the “ACT government”. The vehicle itself bore a non-standard number plate suggestive that it may be a government vehicle. This limited material permits (although only barely) a finding on the balance of probabilities that the vehicle was owned by the Territory government.
However, even accepting that the ownership of the vehicle was established, it is clear that the Territory did not “control” the driving of the vehicle in the sense required by Soblusky as understood in Scott. Clearly, “the Territory” was not a passenger in the car. It was not, in some immediate and direct sense, able to control the driving of the vehicle by reason merely of its status as owner. As owner it is likely to have been entitled to exercise control of whom and the manner in which the vehicle was driven. However, in contrast of the position in England (usefully summarised in Lloyd at [49]-[50]), the requirement of control involves more than rights as the owner of the vehicle. It means some direct and immediate operational control involving the capacity for effective intervention. That was not present here. Therefore, Soblusky does not provide an alternative basis upon which the Territory would have been liable for the negligence of the first defendant.
Summary
As a result of what I have said above:
(a)The second defendant is liable to indemnify the first defendant in relation to the accident on 29 October 2014 because, relevantly, the accident was a “motor accident” within the meaning of the RTTPI Act.
(b)The second defendant has established that, because of the operation of s 44 of the SRC Act, an action for damages does not lie against the first defendant for damages arising out of the accident on 29 October 2014. Because an action does not lie there is no liability for damages to which the CTP policy issued in relation to the motor vehicle responds: RTTPI Act, s 21.
Thus, by reason of (a) the second defendant is liable to indemnify the first defendant, but by reason of (b) there is no liability upon which that obligation to indemnify operates.
Because the plaintiff and first defendant have established that the second defendant is liable to indemnify the first defendant, the agreement between the first defendant and the plaintiff, which, as I understand it, was contingent upon there being no obligation to indemnify, does not come into operation. Instead, the second defendant is liable to indemnify the first defendant but has established that, by reason of s 44 of the SRC Act, that the first defendant and hence the second defendant has no liability. In those circumstances, the appropriate disposition is that there be judgment for the defendants against the plaintiff.
Common law assessment of damages
In case I am wrong in my conclusion about the operation of s 44 of the SRC Act, I will make a contingent assessment of damages.
Expert medical evidence
The expert medical evidence tendered by the plaintiff included reports from:
(a)Dr John Graham, a consultant neurologist;
(b)Dr Romill Jain, a specialist pain medicine physician;
(c)Dr Peter Wilkins, a consultant occupational physician; and
(d)various reports from treating doctors, Dr Sindy Vrancic, Dr Chris Roberts, Dr Jennifer Green and Dr Ram Malhotra (neurologist).
There were also reports from a treating physiotherapist and treating psychologist.
No medical evidence was tendered by the first defendant.
The second defendant tendered reports from Dr Ventura, a psychiatrist, Dr Mohamad Mourad, an orthopaedic surgeon, and Dr Paul Spira, a neurologist. None of the medicolegal experts were required for cross‑examination.
There was only very limited dispute on the medical evidence. I will now address the disputed issues.
Was the Dupuytren’s contracture accelerated by the accident?
On this issue the competing evidence was that of Dr Roberts, Dr Mourad on the one hand and Dr Spira, Dr Vrancic and Dr Green on the other.
Dr Vrancic in her referral to Dr Green recorded that the plaintiff believed that his Dupuytren’s contractures were part of his compensable injury but said, “It is my belief that his Dupuytren’s is an idiopathic condition”.
Dr Green simply stated that conclusion that the Dupuytren’s contracture “is treatable but is not work-related”. In a reporting letter to another specialist the absence of explanation for that conclusion is understandable but means that the opinion is of limited assistance to the court.
Dr Roberts pointed to the fact that the disease seems to have come on quite rapidly and that it was well documented that Dupuytren’s can come on after an accident and an injury, although the plaintiff probably had a predisposing condition to developing the disease. Therefore, he concluded that it has “become more prominent and developed more rapidly” than it would have without the injury and operations on his arm.
Dr Spira said that Dupuytren’s contracture “arise[s] as a spontaneous phenomenon of unknown cause involving the progressive fibrosis (scarring) of the palmar fascia producing a slowly progressive contracture”. He said, “I can think of no mechanism through which a left elbow injury or the subsequent surgery in the region of the left elbow would have contributed to the evolution of changes which are, fundamentally, within the palm itself and are therefore well separated from the region of injury or surgery”. He did note that post-traumatic Dupuytren’s has been reported but said that “this is in the context of trauma to the hand rather than the elbow” and “most commonly penetrating injuries of the palm”. Dr Spira opined that the post-infection fibrosis should be regarded as palmar fasciitis even though it produces Dupuytren’s-like contractures and that the eponymous term is usually reserved for the idiopathic form.
Dr Mourad said that he disagreed with Dr Green and agreed with Dr Roberts. His reasons were not clear saying: “I believe that on the balance of probabilities that although the Dupuytren’s contracture was pre-existing, it may have been accelerated by the events on 29 October 2014 and subsequent surgery.”
On this issue I prefer the evidence of Dr Spira. That is essentially because he provides not merely a bare statement of his opinion but an explanation of the reasons for that opinion. In my view, determining the matter on a rational basis must involve giving more weight to a reasoned conclusion than to a mere ipse dixit: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [85]-[87].
Did the plaintiff suffer from a psychiatric condition?
On this issue the relevant expert evidence was that of Ms Kerrianne Abbott and Dr Ventura. Dr Ventura’s conclusion as at April 2017 was:
Mr Mannall is a 58-year-old man who presented with feelings of frustration about the effect that his chronic pain is having on his life. He gives a convincing history of restrictions in his lifestyle because of his pain. In my view however his emotional reaction is not excessive or disproportionate. His emotional reaction in other words is not pathological and is best described as a normal reaction to pain. I do not find evidence to justify a psychiatric diagnosis. Specifically, his symptoms do not meet a threshold for somatic symptom disorder or depression. He does not have an impairment as a result of his psychological symptoms.
The purpose of Ms Abbott’s reports were not to make any diagnosis. However, those reports indicate some moderate depression in the context of concerns about the permanency of his condition, the impact upon work and his adjustment to the impact of the injury. However, as at the closure of her file in May 2018, she noted that while he continued to experience stress and anxiety about his pain condition and recovery, he was “quite resilient in his personality, and in his approach to life with a pain condition”.
I accept the evidence of Dr Ventura that no psychiatric diagnosis is warranted. However, I also accept the submission made on behalf of the plaintiff that this makes little difference to the assessment of damages. Whilst the plaintiff has a resilient personality, he still suffers from pain, anxiety and is concerned about the permanence of his condition and the difficulties dealing with life in circumstances where his sleep is interrupted. Of more relevance to the assessment of general damages, is the evidence of his wife, Donna, who gave particular evidence about the change in his mood since the accident, how it has affected their relationship generally, intimacy between them, the difficulties he has with sleeping because of pain and how the persistence of pain affects his daily life. I accept that evidence and consider it of significance in relation to the assessment of general damages.
General damages
The lay and expert evidence discloses the following matters relevant to the assessment of general damages. The plaintiff suffered an injury to his left elbow, a graze to his lower back and right thigh at the time of the accident. He was referred for physiotherapy in relation to his right thigh. He then suffered twitching in his left forearm as a result of inflammation of the ulnar nerve. He received a steroid injection which was unpleasant and did not assist. He then had the surgery on 9 April 2015 being a cubital tunnel release and subcutaneous transposition of his ulnar nerve. He felt better for a while after surgery and returned to work but, with progressive use of his arm, he began to experience increasing pain in his left elbow and left forearm. On 4 September 2015, he had surgery for scar release of his ulnar nerve. He has ongoing discomfort radiating from his left elbow to his forearm. He can have sharp pain and the extent of that pain changes with the weather. The pain is intermittent and associated with pushing and pulling. It reaches a level described by him as being of 7 or 8 out of 10. The pain in his elbow and forearm is usually worse by the end of the day. He has to take tapentadol (Palexia) for the pain. His sleep is interrupted by the pain. This affects his mood and his relationship with his wife. It also affects his capacity to interact with his grandchildren.
The suffering of the injury has prevented him from pursuing the recreations with his wife that had been deferred whilst they were raising children. In particular, it has frustrated his attempts to return to surfing, camping, kayaking, mountain bike riding, which prior to the accident he and his wife had intended to do. It is also affected his capacity to enjoy gardening and to pursue his tool based hobbies. Prior to the accident he also devoted considerable time to assisting his parents with their extensive garden on O’Connor and his capacity to do so now is significantly reduced. His wife described him as having lost hope as a result of the failure of the various interventions to resolve his ongoing pain and that as a result the last two years have actually been worse than earlier when there was some hope of improvement. The plaintiff is thus a person for whom the physical disability caused by the accident has had a greater impact than somebody who had no intention of returning to significant physical pursuits.
The plaintiff continues to work to the full extent that is reasonable having regard to his condition. He remains motivated to continue to do so. He works four days per week, six hours per day with modified duties. The long-term prognosis is guarded. He is likely to suffer ongoing symptoms of pain in his left elbow. No further surgical intervention is likely. The pain will need to be managed with non-operative measures such as the intermittent use of anti-inflammatories and analgesics. The effect of the accident has led to an incremental but significant decline in his overall quality of life.
The plaintiff contended that an award of $250,000 would be appropriate, allocated half of the past and half of the future. The second defendant contended that an award of $100,000 would be adequate.
In assessing general damages, regard must be had to the fact that the plaintiff is 60 years old and hence has less of his life ahead of him than a younger person. In my view, an award of general damages of $180,000 would have been appropriate, half relating to the past and half relating to the future.
I would have awarded interest on the pre-judgment component of this of $8550 ($90,000 x 4.75 years x 2%).
Out-of-pocket expenses
Past out-of-pocket expenses have been paid by Comcare except for $222.85 which has been paid by Medicare. The amount paid by Comcare is $71,492. Having regard to the findings I have made about the Dupuytren’s contracture, the costs of surgery and related treatment is not recoverable. Neither the schedule of Comcare payments nor any evidence adduced by the defendant disclosed which of the payments after the surgery related to the surgery. I have therefore removed from the calculation of out-of‑pocket expenses only those items charged on 30 and 31 August 2016 which I can be satisfied relate to that surgery. Those items total $13,518.19. I would award damages in the sum of these amounts namely $58,196.66 ($71,714.85-$13,518.19). As these amounts were not paid by the plaintiff no pre-judgment interest would be awarded.
So far as future out-of-pocket expenses are concerned, senior counsel for the plaintiff submitted that an allowance of $40 per month for medicines would be appropriate. He also submitted that a global figure incorporating an amount for general practitioner visits every six weeks and the occasional specialist appointment as necessary would be appropriate. The ultimate submission in relation to future out-of-pocket expenses was that an amount of $25 per week for the rest of the plaintiff’s life ($23,055) would be appropriate.
Senior counsel for the second defendant submitted that allowance of no more than $5000 would be appropriate in circumstances where no expert doctor had said that a program of treatment was necessary.
The evidence about the likely cost of future out-of-pocket expenses was patchy. There was no evidence as to the cost of tapentadol (Palexia) which the plaintiff takes.
The evidence does disclose those amounts paid by Medicare and Comcare for medical expenses since the accident. I would assess future out-of-pocket expenses having regard to the level of expenses incurred in 2018. The Medicare and Comcare records disclose that there were nine general practitioner visits referable to the accident ($698 or $13.42 per week). There were also substantial amounts spent upon physiotherapy ($745), a psychologist ($1090) and what appears to be pain management treatment ($7543). It is likely that the need for general practitioner visits will remain reasonably consistent. That cannot be said of the other types of medical treatment received in 2018. Rather, it is likely that from time to time there will be a need for various specialist or other treatment. However, in light of the amount spent in 2018, even in the absence of evidence of the cost of medication it is clear that the amount of $25 per week ($1300 per year) is a modest and reasonable claim. I would therefore award future out-of-pockets at the rate of $25 per week for the balance of the plaintiff’s expected life. That gives a figure of $23,055 ($25 x multiplier of 922.2).
Economic loss
The plaintiff relied upon a forensic accountant’s report prepared by Mark Thompson in July 2018. That report was relied upon on the basis that the figures in it would need to be updated as at the point of judgment. The report identified that the components of the plaintiff’s past losses were loss of wages and overtime, loss of meal allowance and a Fox v Wood component. The total past losses to the end of July 2018 were $166,916. The plaintiff’s future losses were calculated on the basis of two scenarios, the first being that the plaintiff was required to retire at the age of 65, the second being that there was no forced retirement and that he worked until the age of 67. The components of future loss were wages and overtime, meal allowance and superannuation. In relation to the future, the calculated loss was $350,488 if retirement occurred at the age of 65 or $287,719 if retirement occurred at the age of 67.
Mr Mannall’s evidence was that but for the accident, he would have worked “at least to 65 and just probably do more exploring”. He explained the reference to exploring as “Adventure Australia … go places”. That was consistent with the evidence about his interest in the outdoors and the plans that he and his wife had made prior to the accident. The evidence of the plaintiff makes it more likely that he would, but for the accident, have worked until the age of 65 rather than 67. It would therefore be appropriate to have awarded damages on the basis of retirement age of 65 which would mean that the figure of $350,488 was the appropriate starting point.
The figure would need to be reduced to take account of my finding that the Dupuytren’s contracture was not caused by the accident. Further, Mr Thompson’s calculations in relation to past and future economic loss would need to be revised to reflect the position as at the date of judgment. I would have permitted these issues to be adduced by granting liberty to apply in relation to the revision of these figures so as to permit the judgment amount to be accurate as at the date of judgment. Having regard to the conclusions I have reached, it is not necessary to grant that liberty.
Finally, the calculations by Mr Thompson made no allowance for contingencies or vicissitudes. Given the short period that is relevant and the security of his public sector employment, a discount of no more than 5% would be appropriate: see the discussion in Luntz H, Assessment of Damages for Personal Injury and Death (4th ed, Butterworths, 2002) at [6.4.13], [6.4.14], [6.4.17].
Griffiths v Kerkemeyer
Counsel for the plaintiff submitted that an award of two to three hours per week for the past and two and a half hours per week for a five year period into the future would be appropriate.
Counsel for the second defendant submitted that some post-surgery care might be awarded but there should be no award in relation to the future.
Consistently with the evidence relevant to the assessment of general damages, it appears that the plaintiff does as much as he can for himself and as a consequence his requirement for domestic assistance is less than it might be for a person with a different approach to life. So far as the past is concerned, I do not consider that the evidence establishes a need greater than that contended for by the second defendant, namely the equivalent of 50 hours at $35 an hour for assistance post-surgeries, giving a total of $1750. Interest would be awarded at Court Procedures Rules 2006 (ACT) rates.
So far as the future is concerned, I would award a buffer equivalent to one hour per week for a period of five years, namely $8491 ($35 per week, multiplier 242.6).
Contributory negligence
Contributory negligence was pleaded but no submissions were made in support of a finding of contributory negligence. I therefore do not find that the plaintiff was contributorily negligent.
Conclusion
For the reasons given above, judgment must be entered in favour of the defendants. Had damages been assessed at common law, the damages award would have been made subject to adjustment to make the award accurate up until the date of judgment. Having regard to the conclusion I have reached on liability, it is not necessary to give liberty for that updating to occur.
Orders
Judgment will be entered for the defendants. The plaintiff will be required to pay the costs of the defendants. I will however give an opportunity for the parties to be heard in relation to costs if any party seeks it. In case I have misunderstood the nature of the agreement between the first defendant and the plaintiff as to the circumstances in which damages were to be payable, I will make an order preventing the entry of the orders for a period of 14 days so as to permit any application in relation to that issue to be made.
The orders of the Court are:
1. Judgment be entered for the first and second defendants against the plaintiff.
2. The plaintiff is to pay the costs of the first defendant and second defendant.
3. Order 2 does not take effect for a period of 14 days and if, within that period, any party notifies my associate by email (copied to each other party) that it wishes to be further heard in relation to costs then order 2 does not take effect until further order of the court.
4. These orders may not be entered for a period of 14 days and if, within that period, notification is given under order 3 or an application in proceedings is filed seeking variation of order 1 then the orders may not be entered until further order of the court.
| I certify that the preceding one hundred and forty-eight [148] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 21 June 2019 |
6
19
13