Motor Accidents Insurance Board v Alomes
[1992] TASSC 75
•28 April 1992
Serial No 22/1992
List “A”
CITATION: Motor Accidents Insurance Board v Alomes [1992] TASSC 75; [1992] 1 Tas R 83; A22/1992
PARTIES: MOTOR ACCIDENTS INSURANCE BOARD
v
ALOMES
TITLE OF COURT: SUPREME COURT OF TASMANIA (Full Court)
FILE NO/S: FCA 118/1991
DELIVERED ON: 28 April 1992
JUDGMENT OF: Cox, Underwood and Wright JJ
Judgment Number: A22/1992
Number of paragraphs: 16
Serial No. 22/1992
List “A”
File No FCA 118/1991
MOTOR ACCIDENTS INSURANCE BOARD v. ALOMES
REASONS FOR JUDGMENT FULL COURT:
COX J
UNDERWOOD J
WRIGHT J
28 April 1992
Order of the Court
Appeal Dismissed
Serial No. 22/1992
List “A”
File No FCA118/1991
MOTOR ACCIDENTS INSURANCE BOARD v ALOMES
REASONS FOR JUDGMENT FULL COURT:
COX J
28 April 1992
The appellant was joined as third party in an action brought against the respondent by one Reynolds in respect of injuries sustained when the respondent, in the course of unloading a gas cylinder from the tray of his truck, failed to arrest its descent onto Mr. Reynold’s foot. The plaintiff had moved towards the truck intending to offer assistance in lowering the cylinder to the ground. The learned trial judge found that as he reached the cylinder he stepped with his left foot immediately under the cylinder’s path of fall and it landed on his foot. The learned trial judge found that, pursuant to the Motor Accidents (Liabilities and Compensation) Act 1973, s.14(1) (the Act), the appellant was liable to indemnify the respondent in respect of his liability to the plaintiff in respect of bodily injury to the latter which he found had arisen out of the use of the respondent’s truck. The appellant challenges that finding.
The Motor Accidents (Liabilities and Compensation) Act 1973, s.14(1) provides:
“By virtue of this Act, but subject to and in accordance with the provisions thereof, the Board is bound to indemnify a person owning or using a motor vehicle, or his legal personal representatives, in respect of any liability (not being a contractual liability) incurred by him in respect of the death of, or bodily injury to, any person caused by or arising out of the use of that motor vehicle in this State on or after the appointed day.”
The expression “injury to any person caused by or arising out of the use of that motor vehicle”, which is to be found in similar statutes in several other jurisdictions in Australia, has been considered on many occasions. Whether such injury is caused by or arises out of the use of the vehicle in question is a question of fact in every case, (Fawcett v. B.H.P. By–Products Pty. Ltd. (1960) 104 C.L.R. 80 at p.91). It was urged upon us that the purpose of the Act being “to make provision for the discharge of liabilities in respect of deaths and bodily injuries arising from motor accidents ...” (long title) it could not have been contemplated by the Parliament that in such a case as the present the appellant Board would be called upon to give an indemnity but that is to completely ignore the definition of accident contained in the Act which is in these terms:
“‘Accident’ means an occurrence caused by or arising out of the use of a motor vehicle whereby the death of or bodily injury to any person results.”
Furthermore, Barwick C.J. pointed out in respect of comparable legislation in Government Insurance Office (N.S.W.) v. R.J. Green & Lloyd Pty. Ltd. (1966) 114 C.L.R. 437 at pp.441–442 that:
“... the Act is not limited to the use of a vehicle in or upon public thoroughfares or to its use in movements : and that in choosing the expression ’the use of the motor vehicle‘ as the basis for the requirement of a policy of insurance and for the delimitation of the area of the indemnity to be obtained, the Act indicates an intention to cover a very wide field, a field more extensive than what might be called the traffic use of the motor vehicle.”
In Commercial and General Insurance Co. Ltd. v. Government Insurance Office (N.S.W.) (1973) 129 C.L.R. 374 at p.379, the High Court, in a joint judgment of Menzies, Walsh and Mason JJ., acknowledged:
“It is true that the application of what has been decided may sometimes result in a person obtaining an indemnity against a liability which seems remote from the purposes of an insurance that is requisite only for vehicles which go upon public roads, but this derives in part from the consideration that the cover obtained is not limited to what happens upon public roads. It extends to the use of the motor vehicle in New South Wales.”
The learned trial judge held as follows:
“The truck was designed to be used primarily to carry goods and had in fact been specially modified for the purpose of transporting cylinders of gas. It was part of the implementation of that purpose not only to transport those cylinders but also to load them onto the truck and unload them from it. Applying the words used in s.14(1) and the statements of principle to which I have referred, I conclude that the truck was being used at all times when the defendant brought it to a stand–still, climbed on its tray and proceeded to unload the cylinder from it to the ground. I have no doubt that the bodily injury suffered by the plaintiff as a consequence of that unloading operation arose out of the use of the truck. Once the cylinder had reached the ground and was in the course of being moved into the building it could not have been said that the truck was being used nor that any injury arising out of that subsequent movement was caused by or arose out of the use of the truck. Such a later injury would have been too remote, not sufficiently proximate to the previous use of the truck. But the placing of the cylinders onto the tray of the truck and removing them from it were elements of the use for which the truck was designed and applied and accordingly, the plaintiff’s injury can truly be said to have arisen out of the use of the truck.”
It has been urged upon us that the inference in the final sentence cannot be sustained and that in the light of the undisputed findings of fact made by the trial judge we should draw and substitute an inference that the injury did not arise out of the use of the truck. In my view the conclusion of the learned trial judge is consistent with the numerous High Court and other State Full Court authorities cited to him and which are set out in his reasons for judgment, No.88/1991. The fact that the plaintiff put himself in the position he was at the critical time, that is, at the time the cylinder fell on his foot, does not in my view, detract in any way from the conclusion the trial judge reached, for as Dawson J. said of the question whether injuries arose out of the use of a vehicle, in State Government Insurance Commission v. Stevens Bros. Pty. Ltd. (1984) 154 C.L.R. 552 at p.559:
“That requires the application of a wider test which, although it involves some causal relationship between the use of the vehicle and the injuries, does not require the direct or proximate relationship between the vehicle and the injuries which would be necessary to conclude that the injuries were caused by the vehicle: Government Insurance Office (N.S.W.) v. R.J. Green & Lloyd Pty. Ltd. (supra) at pp.442–443, 445, 447.”
I am in no doubt that in the circumstances of this case the learned trial judge rightly concluded that the process of unloading the respondent‘s truck in which he was engaged at the relevant time, was a use of that vehicle. To continue the quotation from Dawson J. in the last mentioned case:
“... in order to apply the wider test there must be a use of the vehicle and it is here that room for difference emerges. Although the cases establish that a broad view should be taken of what amounts to use of a vehicle in the context of the relevant policy, they also establish that there are limits and that not all acts upon or in relation to a vehicle involve the use of that vehicle.”
He then went on to cite some of the examples given by Menzies J. in Government Insurance Office (N.S.W.) v. King (1960) 104 C.L.R. 93 at pp.99–100 of the carrying out of repairs or other work on a vehicle designed to make it ready for use which would not amount to a use of it for the purposes of similar legislation. There can be no comparison between the circumstances of the present case and those illustrations, nor any justification for the claim that when Menzies J. drew a distinction between using a motor vehicle “and working upon it” (ibid. at p.100) a distinction again referred to in Transport Accident Commission v. Hoffman [1989] V.R. 197 at p.200, either he, or the Full Court in the latter case, was referring to work physically being carried out on top of the vehicle as opposed to work in the sense of repair to it being undertaken.
Counsel for the appellant submits that we should follow the case of Gray v. Murray [1979] Tas.R. 48 in which Everett J. held that the process of transferring freight from a goods carrying truck to a train, during which the employee of the truck owner suffered back injury, did not amount to a use of a motor vehicle. Counsel for the plaintiff in that case, in an interlocutory application, successfully argued that his client was not disentitled to trial by jury by virtue of the provisions of the Act, s.22, which provides that an action in which damages are sought, “in respect of any accident”, shall be heard before a court without a jury. His prime argument was that the sustaining of the back injury did not amount to an “occurrence” within the definition of “accident” set out above. From the summary of counsel’s argument set out in the reasons for judgment, it appears that counsel did not seek to persuade Everett J. that the work being undertaken by the plaintiff did not involve the use of the truck or that s.14 had any relevance to the application for a jury. With respect, to the extent that his Honour‘s obiter views on the present issue differ from those of the learned trial judge, I think they should not be followed.
In my view the appeal should be dismissed.
Serial No. 22/1992
List “A”
File No. FCA118/1991
MOTOR ACCIDENTS INSURANCE BOARD v ALOMES
REASONS FOR JUDGMENT FULL COURT:
UNDERWOOD J
28 April 1992
I agree with the reasons for judgment of Cox J. I would just add with respect to Gray v. Murray [1979] Tas.R. 48, that the issue for determination on an interlocutory application was whether the Motor Accidents (Liabilities & Compensation) Act 1973, s.22(1) deprived the plaintiff of his right to trial by jury of a claim for damages against his employer for injuries caused by the employer’s alleged negligence. The evidence upon which the application was determined comprised four brief paragraphs of agreed facts. They established (inter alia) that at all material times the plaintiff was acting within the scope and course of his employment with the defendant, and that:
“2. The plaintiff alleges that on 5 January, 1975 at the Railway Goods Yard at Launceston he injured his back in the course of his employment whilst he was transferring cartons containing ceramic clay from his truck to a railway truck and that the injury occurred when he lifted part of one of the cartons in order to roll it from the tray of his truck.”
10. His Honour determined the matter in favour of the plaintiff primarily upon a ground that apparently was not argued, viz, it was the intention of Parliament that the provisions of s.22(1) and the definition of “accident” in s.2(1) be read down so as to be confined to cases in which the Motor Accidents Insurance Board will be responsible for satisfying any judgment (subject to s.22(2)).
11. Having thus resolved the issue, his Honour turned to consider the principal submission of counsel for the plaintiff namely, that the plaintiff’s injuries were not caused in circumstances that constituted “an accident” as defined by s.2(1) because there had been no “occurrence” within the meaning of that definition. His Honour ruled that this submission was correct, in that the injury itself was not the relevant occurrence for the definition refers to injury resulting from an occurrence. Thus, he ruled that there had been no accident as is referred to in s.22(1). It appears that his Honour did not consider the possibility that the alleged lifting of “part of one of the cartons” [whatever that means] may have been the relevant occurrence.
12. Finally, and in my view, by way of obiter dicta, his Honour then considered the issue argued on this appeal. He referred to a number of High Court decisions including Harvey Trinder (N.S.W.) Pty. Ltd. v. Government Insurance Office of N.S.W. (1966) 114 C.L.R. 449 in which Windeyer J. said at p.452 that this issue is ultimately one of fact. However, in my respectful view, Everett J. had no factual material upon which he could determine this issue. The agreed fact was no more than the plaintiff alleged that the injury had occurred “when he lifted part of one of the cartons in order to roll it from the tray of his truck.” His Honour said at p.61:
“The only material I have on which to make a judgment as to a factual situation is contained in the statement of claim and the agreed statement of facts. In my view, the respondent to the application has not established that the circumstances so revealed can ‘fairly be described’ as amounting to the use of a motor vehicle so as to permit the respondent to claim that there was an ‘accident’ (as defined) and therefore s.22 operates so as to exclude the plaintiff’s right to trial by jury. On this ground also I consider the plaintiff‘s application should be granted.”
13. That passage contains no reasoning for the conclusion expressed and, as mentioned, there is no factual foundation to support it. Even assuming that the agreed alleged facts were established, in my respectful view, his Honour’s reasoning on this point ought not to be followed. It is inconsistent with the expression of views in Government Insurance Office of N.S.W. v. R.J. Green & Lloyd Pty. Ltd. (1966) 114 C.L.R. 437; Commercial and General Insurance Co. Ltd. v. Government Insurance Office (N.S.W.) (1973) 129 C.L.R. 374; State Government Insurance Commission v. Stevens Bros. Pty. Ltd. (1984) 154 C.L.R. 552 and the Full Court of Victoria in Transport Accident Commission v. Hoffman [1989] V.R. 197. Finally, according to the report of Gray v. Murray (supra), the Motor Accidents (Liabilities and Compensation) Act, s.14, central to this appeal, was not considered by his Honour. Unlike s.22(1), s.14(1) does not contain the word “accident”.
Serial No 22/1992
List “A”
File No FCA118/1991
MOTOR ACCIDENTS INSURANCE BOARD v. ALOMES
REASONS FOR JUDGMENT FULL COURT:
Wright J
28 April 1992
14. I agree with Cox J. It is said in this case that Crawford J. was in error in deciding that an accident in which Mr. Reynold‘s foot was injured whilst a gas cylinder was being lowered to the ground from the tray of a commercial vehicle by the respondent driver, “arose out of the use of” that vehicle. The law as to the meaning of this phrase, which appears in similar form in many pieces of comparable legislation, is clear from several decisions of the High Court and superior courts in Australian States. However, the outcome of any particular litigation will always depend upon the established facts. None of the primary findings of fact made by his Honour are in dispute in the present case, nor are his findings as to negligence.
15. In my opinion, his Honour’s conclusions were fully justified by his findings. His conclusions are not demonstrably wrong and indeed, having considered the matter for myself, I am of the firm view that they are the correct conclusions in the circumstances.
16. In my opinion, his Honour‘s reasons and judgment should be endorsed by this Court. It follows that insofar as the dicta of Everett J. in Gray v. Murray [1979] Tas.S.R. 48 are inconsistent with his Honour’s reasons in this case, those views can no longer stand. I am of the opinion that the present appeal should be dismissed with costs
0
0
0