Manning v Taroom Shire Council

[1994] QCA 430

IN THE COURT OF APPEAL	[1994] QCA 430
SUPREME COURT OF QUEENSLAND	Appeal No. 35 of 1994
Brisbane
Before	Fitzgerald P. Pincus J.A. Derrington J.

[Manning v. Taroom Shire Council & ors.]

BETWEEN:

THOMAS ARCHIBALD MANNING

(Plaintiff)

AND:

TAROOM SHIRE COUNCIL

(First Defendant) Respondent

AND:

NOEL RICHARD COTTAM and

ELSA MARY COTTAM

(Second Defendants)

AND:

SUNCORP INSURANCE & FINANCE

(Third Party) Appellant

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 26/10/94

The circumstances giving rise to this appeal are set out in the joint judgment of Pincus J.A. and Derrington J. and need not be repeated. It is regrettable that these issues, which involve questions of fact and degree involving subjective judgments, continue to come before the Court and be argued as though previous cases, decided on their particular circumstances, establish binding legal principles.

There are two questions for decision; logically, although not in the order in which they occur under sub-section 3(1) of the Motor Vehicles Insurance Act 1936 as amended, those questions are:

(i)  was the plaintiff's injury "caused ... in connection with" [the respondent's] motor vehicle; and

(ii) did the respondent "become legally liable ..." to the plaintiff for damages for such injury "in respect of such motor vehicle"?

The respondent was negligent because its vehicle was parked where the plaintiff had to cross the road, passing in front of the vehicle out of sight of vehicles travelling in the same direction; the respondent's vehicle could, and should, have been parked on the opposite side of the road, facing in the opposite direction, so that the plaintiff could alight from the vehicle, collect the sign and load it into the vehicle without any danger.

The respondent's negligence, i.e. in the parking of the vehicle, was both the cause of the plaintiff's injury and the basis of the respondent's liability. In those circumstances, it seems to me correct to conclude that the respondent became "legally liable ... in respect of [the] motor vehicle" and that the plaintiff's injury was "caused ... in connection with such motor vehicle".

I agree that the appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 35 of 1994
Brisbane
[Manning v. Taroom Shire Council]
BETWEEN:

THOMAS ARCHIBALD MANNING

Plaintiff

AND:

TAROOM SHIRE COUNCIL

First Defendant/

Respondent

AND:

NOEL RICHARD COTTAM & ELSA MARY COTTAM

Second Defendants

AND:

SUNCORP INSURANCE & FINANCE

Third Party/

Appellant

Fitzgerald P
Pincus JA

Derrington J

Judgment delivered 26/10/1994

SEPARATE REASONS FOR JUDGMENT OF THE PRESIDENT, PINCUS JA AND DERRINGTON J JOINTLY. ALL CONCURRING AS TO THE ORDER TO BE MADE

APPEAL DISMISSED WITH COSTS

CATCHWORDS:	Insurance - compulsory motor vehicle insurance - workman passenger leaving truck to walk in front of it to collect and load road-signs and to truck from other side of road - whether employer's liability in respect of the vehicle - whether injury "caused ... in connection with" the vehicle.
Motor Vehicle Insurance Act 1936 s. 3(1).
COUNSEL:	Mr J Clifford QC with him Mr P Ambrose for the Appellant Mr J Griffin QC with him Mr R King-Scott for the Respondent
SOLICITORS:	Quinlan Miller and Treston for the Appellant O'Mara Patterson and Perrier for the Respondent
HEARING DATE:	7 October 1994

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 35 of 1994
Brisbane
[Manning v. Taroom Shire Council]
Before The President

Pincus J.A.

Derrington J.

BETWEEN:

THOMAS ARCHIBALD MANNING

Plaintiff

AND:

TAROOM SHIRE COUNCIL

First Defendant/

Respondent

AND:

NOEL RICHARD COTTAM & ELSA MARY COTTAM

Second Defendants

AND:

SUNCORP INSURANCE & FINANCE

Third Party/

Appellant

JOINT REASONS FOR JUDGMENT - PINCUS JA AND DERRINGTON J

Delivered the 26th day of October, 1994

The appellant third party was the compulsory motor vehicle insurer of the

respondent/defendant, the Taroom Shire Council, in respect of the relevant truck. The plaintiff sued

for damages for personal injury caused by the negligence of the respondent which was found to be

liable to him. The respondent successfully claimed indemnity from the appellant, which now appeals

against that result.

On 19 April, 1984, which was the Thursday before Easter, the plaintiff was employed by

the respondent as a member of a road-maintenance gang which was working on a rural section of

the Leichhardt Highway approximately fourteen kilometres north of Wandoan. Because their

maintenance work had been completed for the day, some members of the gang were collecting road signs which had been set up to warn motorists of the work. The insured truck was used for this

purpose. It was towing a trailer carrying a low tank and equipment used to spray bitumen, but this is

generally irrelevant except that it constituted an obstacle for any passenger alighting from the truck

and moving to the driver's side.

After the signs had been collected at one end of the work, the truck, with the plaintiff

aboard, was turned around and driven along the road where it was stopped approximately opposite,

and on the other side of the road from, the signs at the other end of the work. After the plaintiff

alighted from it, he walked briskly around its front and commenced to cross the highway towards

the signs. Very soon after he had walked beyond the truck he was struck by another vehicle which

was overtaking it.

The respondent's liability was found to consist of its failure to set up a safe system of work in

that the truck should have been driven to the side of the road on which the signs were standing so

that the plaintiff would not have been placed in the danger of having to cross the highway while

preoccupied with his task. Essentially, the foundation of the liability resided in the respondent's

permitting a system where the vehicle was parked in a position which was dangerous to the plaintiff.

The danger was enlarged because until a very late stage the plaintiff and the approaching motorist

were hidden from each other's view by the bulk of the insured vehicle. This latter feature does not

constitute a ground of liability in itself. Rather it is an added contribution by the mere presence of the

vehicle to the danger caused by its having been parked on that side of the road.

The relevant section of the Motor Vehicle Insurance Act 1936 provides as follows:

"3.(1) Insurance by owners of motor cars. Subject to this Act, the owner of any motor vehicle shall at all times during registration, or as the case may be, any renewal of registration of such motor vehicle indemnify himself ... and keep himself ... indemnified by a contract of insurance with the ... licensed insurer against all sums for which he or his estate ... shall become legally liable by way of damages in respect of such motor vehicle for accidental or bodily injury (fatal or nonfatal) to any person ... in any State or Territory of the Commonwealth of Australia where such injury is caused by through or in connection with such motor vehicle."

(Emphasis mine.)
The issues in this matter concern the two requirements for cover prescribed by this section.

The appellant argues that the Council was not "legally liable by way of damages in respect of [the

insured] motor vehicle" and/or alternatively that the "bodily injury" of the plaintiff was not "caused by

through or in connection with" the vehicle.

There is ample authority to the effect that an employer may be liable in respect of a vehicle

because of a defective system of work involving that vehicle: McEwan v. Council of the City of the

Gold Coast (1987) 1 Qd.R. 337, 341; Nicol v. Allyacht Spas Pty Ltd (unreported) Carter J. 3

April 1986; Suncorp Insurance & Finance v. Workers Compensation Board of Queensland (1990)

1 Qd.R. 185 at 190. As it has been shown, in the present case there was such a feature of the

respondent's negligence as found, that is, its system had permitted the insured vehicle to stop in a

place that was dangerous for the plaintiff. Because of the very wide meaning of the phrase "in

respect of" [McDowell v. Baker (1979) 144 C.L.R. 413, 419.], the necessary nexus between the

respondent's negligence, and consequently its liability, and the vehicle is clearly established in the

circumstances of this case.

By way of contrast, its liability was not based upon any failure to warn him to be careful

when crossing roads or upon its failure to control other traffic for his protection as he was crossing

the highway. These would have been examples where the respondent's liability was not "in respect

of the vehicle".

The second issue is whether the injury was "caused by through or in connection with such

motor vehicle". Of this expression, the only relevant part is in the phrase "caused ... in connection

with such motor vehicle". This is different from the former issue where the relevant relationship was

between the liability of the respondent and its vehicle. Here the nexus which must be established is

that between the injury and that vehicle: cf. Australian Iron & Steel Pty Ltd v. G.10 (N.S.W.)

(1990) 20 S.R. N.S.W. 633.

Depending always on its purpose and on the context, the expression has a wide import

[Burswood Management Ltd v. Attorney General (Cw.) (1990) 94 A.L.R. 220] but it does

emphasise the need for a link between the two: Tana v. Baxter (1986) 160 C.L.R. 572, 579.

However, it does not have any limitation that might have followed the implied introduction of a

reference to the "use" of the vehicle: McEwen v. Gold Coast City Council (1985) 3 M.V.R. 225,

226.

In National Employers' Mutual General Insurance Association Ltd v. Government Insurance

Office of New South Wales (1990) 6 A.N.Z.I.C. 60.981 in respect of the comparable, if more

restrictive, words of the New South Wales statute, the Court adopted the concept applied by the

High Court in Technical Products Pty Ltd v. S.G.I.O. (Qld) (1989) 167 C.L.R. 45 at 47 in relation

to the requirement of the Queensland Act that the liability should be "in respect of" the insured

vehicle. Its explanation that there should be a discernible and rational link between the two features

is reasonably appropriate for the phrase, "in connection with." [The commentary in (1992) 5

Insurance Law Journal 152/59 on causation in insurance law is effectively in accord with this view.]

Because the link between the vehicle and the injury must be causal, it is necessary to discuss the

discernible and rational links in the context of causation with, on the way, a discussion of causation

itself.

The plaintiff was not injured by any part of the vehicle and was a few metres away from it

when he was struck by the overtaking vehicle. That is why that part of s. 3(1) referring to "injury ...

caused by ... such motor vehicle" is irrelevant to this discussion. But because the full expression

goes further so as to include an injury caused "in connection with" the vehicle, so this phrase must

have a different connotation. Accordingly direct physical contact is not a necessary element though

plainly injury caused directly by the vehicle could also be caused in connection with it.

An injury may be caused in connection with the vehicle in a number of ways. One simple comparable example may be given. If a driver were negligently to stop a vehicle to allow an infant passenger to alight in a position of foreseeable serious danger which would arise after the child had

left the vehicle, the injury would still have the relevant causal connection with the vehicle because it

was by means of it that the child was set down in the dangerous place. In the National Employers'

Mutual case (supra), it was found that the necessary link existed when the injured party was directed

in the course of his employment to drive the insured vehicle to a place which was dangerous because

it was slippery where he had to descend from the vehicle's cabin. Certainly the injury occurred at

the end of his act of alighting from the vehicle, but in principle the circumstances of the present case

are little removed from this. They show such a link with the insured truck for the following reasons.

When he was injured, the plaintiff had just alighted from it in order to cross the highway after

he had passed around it, and he was required to load the signs onto it when he brought them back.

In other words his injury was caused as part of the total process of his leaving and loading the truck

and his reboarding, commencing from and including his action of alighting and ceasing with his

reboarding. It was not merely an act associated with loading the vehicle. The concept of

connection with the vehicle in these circumstances must include his having to leave it and return to it,

and its obstruction of the view of both parties to the accident.

Of course there were other causes of the accident unconnected with the vehicle. One of

them was his own failure to keep a proper lookout before emerging onto the highway, but merely

because part of the totality of causes can be characterised in this way does not mean that other

causal features may not be sufficient to meet the description of the cover. It is enough if one of the

causes has the necessary link with the vehicle, that is, that it has a sufficiently proximate and effective

relationship to enable it to be said as a matter of commonsense that the injury was caused in

connection with the vehicle: cf. March v. E. & M.H. Stramere Pty Ltd (1991) 171 C.L.R. 508. If

those rational and discernible links relating to the vehicle's part in the present accident are read

together, then the combination establishes a sufficiently proximate and effective relationship between

its total role and the injury, sufficient, that is, to say that the latter was caused in connection with the
former.

These features are real and substantial and so the liability of the Council falls comfortably

within the cover defined by this phrase in the statute. The appeal should therefore be dismissed with

costs.