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Nominal Defendant v GLG Australia Pty Ltd

Nominal Defendant v GLG Australia Pty Ltd

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HIGH COURT OF AUSTRALIA
GLEESON CJ,
GUMMOW, KIRBY, HAYNE AND HEYDON JJ
NOMINAL DEFENDANT  APPELLANT
AND
GLG AUSTRALIA PTY LIMITED & ORS  RESPONDENTS
Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11
5 April 2006
S329/2005
ORDER
1.        Appeal allowed.
2.Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales dated 23 August 2004 and, in their place, order that the appeal to that Court be dismissed.

3.(a) The first respondent to repay the sum of $132,370.34 to the appellant plus interest calculated at $32.64 per day from 12 November 2004 until the date when this order takes effect.

(b) The order in paragraph (a) is suspended for seven days.

(c)In the event of the first respondent filing and serving written submissions within that period contending that the order in paragraph (a) is wrong:

(i) it will remain suspended until further order; and
(ii)the appellant is directed to file and serve written submissions in reply within a further seven days, and to apply within a further seven days to re-list the matter before a single Justice.

4.The first respondent to pay the appellant's costs of the appeal to the Court of Appeal and of the proceedings in this Court.

On appeal from the Supreme Court of New South Wales
Representation:
P J Deakin QC with P J Nolan for the appellant (instructed by Sparke Helmore)
J E Maconachie QC with N J Polin for the first respondent (instructed by Curwood & Partners)
Submitting appearance for the second respondent.
Submitting appearance for the third respondent.
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Nominal Defendant v GLG Australia Pty Limited
Statutes – Motor Accidents Act 1988 (NSW) ("the Act") – Scope of indemnity – Scope of definition of "injury" under s 3(1) of the Act – A system of work involving forklift vehicle produced vibrations causing boxes in container to fall and strike worker – Whether injury "is a result of and is caused during ... the driving of the vehicle" under par (a)(i) of the definition of "injury" – Whether Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 79 ALJR 1079; 215 ALR 385 required definition of "injury" to be construed consistently with s 69(1) of the Act – Whether injury "caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle" – Whether fault in failing to devise a safe system of work can be invoked as basis of claim for indemnity under the Act – Causation – Whether direct and proximate relationship between the driving of the vehicle and the injuries.
Statutes – Construction – Purpose of legislation – Extrinsic materials – Use of ministerial second reading speech – Whether any disparity between Minister's speech and law as enacted – Duty of courts to enacted law.
Practice and procedure – Court of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] HCA 11
Decision Date: 5 April 2006

CaseChat Overview and Summary

The appeal concerned the application of the *Motor Accidents Act 1988* (NSW) to an injury sustained by an employee of a labour hire company while working at a warehouse. The employee was injured when boxes fell from a container and struck him, caused by vibrations generated by a forklift truck operated by the occupier of the warehouse. The Nominal Defendant, as the insurer of the forklift, sought to argue that it had no obligation to indemnify the occupier. The primary judge found both the employer and the occupier liable, apportioning damages, but the dispute in the High Court was between the Nominal Defendant and the occupier, GLG Australia Pty Ltd.

The central legal issue was whether the injury sustained by the worker constituted an "injury" as defined by the Act, thereby triggering the Nominal Defendant's indemnity obligations. Specifically, the court had to determine if the injury was "a result of and is caused during... the driving of the vehicle" and if it was "caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle." This involved considering whether a failure to devise a safe system of work could form the basis of a claim for indemnity under the Act and whether there was a direct and proximate causal relationship between the driving of the forklift and the injuries. The court also considered the construction of the Act, including the use of extrinsic materials like ministerial second reading speeches, and whether the definition of "injury" should be construed consistently with section 69(1) of the Act.

The High Court allowed the appeal, setting aside the orders of the Court of Appeal. The Court reasoned that the definition of "injury" in the Act required a direct causal link between the driving of the vehicle and the injury, and that the vibrations caused by the forklift's operation, which led to the boxes falling, did not meet this threshold. The Court emphasised that while the forklift's operation was a factor, the primary cause of the injury was the unsafe system of work devised by the occupier, not the driving of the vehicle itself. The Court distinguished the present case from previous authorities, noting that the legislative history indicated a narrowing of the scope of indemnity compared to earlier legislation. The Court also held that extrinsic materials, such as ministerial speeches, should not be used to override the plain words of the statute.

Consequently, the High Court ordered that the appeal to the Court of Appeal be dismissed, meaning the Nominal Defendant was not obligated to indemnify GLG Australia Pty Ltd. The Nominal Defendant was ordered to repay a sum to GLG Australia Pty Ltd, with provisions for further submissions regarding that order, and the Nominal Defendant was ordered to pay the costs of the appeal to the Court of Appeal and the High Court.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales dated 23 August 2004 and, in their place, order that the appeal to that Court be dismissed.

3. (a) The first respondent to repay the sum of $132,370.34 to the appellant plus interest calculated at $32.64 per day from 12 November 2004 until the date when this order takes effect.

(b) The order in paragraph (a) is suspended for seven days.

(c) In the event of the first respondent filing and serving written submissions within that period contending that the order in paragraph (a) is wrong:

(i) it will remain suspended until further order; and

(ii) the appellant is directed to file and serve written submissions in reply within a further seven days, and to apply within a further seven days to re-list the matter before a single Justice.

4. The first respondent to pay the appellant's costs of the appeal to the Court of Appeal and of the proceedings in this Court.

Background

Background to the litigation

GLEESON In its primary aspect this is an appeal from orders of the Court of Appeal, Supreme Court of New South Wales[1], allowing an appeal against orders made by the District Court of New South Wales (Delaney DCJ) relating to the application of the Motor Accidents Act 1988 (NSW) ("the Act") to one of two defendants to a claim by a plaintiff for damages for personal injury. [1]GLG Australia Pty Ltd v Nominal Defendant (2004) 41 MVR 196. Background facts The trial judge found that on 24 August 1999, the plaintiff, Salim Fahd Tleyji, suffered an injury in the following circumstances. He was an employee of Ready Workforce Pty Ltd, a labour hire company ("the employer"). That company supplied his services to GLG Australia Pty Ltd ("the occupier"). The occupier occupied and operated a warehouse at which the unloading of containers of goods took place. For some months the following system, devised by the occupier, had been in operation. A container to be unloaded would be placed in the yard of the warehouse. The plaintiff and others would place boxes from the container onto a pallet placed on a landing in front of the open container. A forklift truck would go up a ramp to the landing, pick up the pallet, and reverse down the ramp. As the forklift truck went up the ramp it caused vibration which was felt through the ramp, the landing and the container. On the day when the plaintiff was injured, the vibration generated by the forklift truck caused boxes stacked in the container to fall and strike the plaintiff as he stood about a metre inside the container. The trial judge found that both the employer and the occupier were liable, having breached their respective duties of care to the plaintiff. He apportioned the damages between the employer and the occupier in the proportion 25:75. The factual findings just summarised and the conclusions drawn from them are no longer controversial. The issues in controversy The controversy in this Court stems from the fact that the occupier's forklift truck was insured by CIC Insurance Ltd[2]. By the time of the trial that insurer was in liquidation, and its liabilities under the policy were being dealt with by the Nominal Defendant.[2]The Act only required the forklift truck to be insured if it were to be driven on a public street (s 8), but, provided all other requirements were satisfied, the policy responded to events not taking place on a public street. Pursuant to s 47A of the Act, the Nominal Defendant applied successfully to be joined as a party "in order to argue that in the circumstances of the case [the insurer had] no obligation under the policy" to indemnify the occupier. Pursuant to s 9 and Sched 1 of the Act, the policy insured "against liability in respect of … injury to a person caused by the fault of the owner or driver of the vehicle". The relevant part of the definition of injury in s 3(1) of the Act was:"[I]njury: (a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during:(i)the driving of the vehicle, or(ii)a collision, or action taken to avoid a collision, with the vehicle, or(iii)the vehicle's running out of control, or(iv)such use or operation by a defect in the vehicle, and(b)…"

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GLEESON CJ, GUMMOW, HAYNE AND HEYDON JJ (dissent) KIRBY J

It follows that, by that provision, "injury", as defined above, is made a "key term" of the Act. The use of that word in the definition of "motor accident"[45], in the description of a "third-party policy"[46] and in s 69(1), indicates how the term is mirrored throughout the legislation, incorporating the provisions with their multiple requirements necessary at once to a plaintiff's recovery of damages and to the entitlement of the motor vehicle owner and driver to indemnity for the liability to pay such damages.[45]The Act, s 3(1).[46]The Act, s 9.The decision of the primary judge Findings at trial:By the time this appeal reached this Court, the only contesting parties were the Nominal Defendant and GLG. The employer and the plaintiff took no part in the appeal. Contingently, the plaintiff was affected by its outcome[47] but he left it to the Nominal Defendant to argue for the result most favourable to him. On this basis, it is unnecessary to record all of the findings made at trial. It is sufficient to note those relevant to the dispute between the Nominal Defendant and GLG.[47]See above these reasons at [51]. The primary judge made findings that GLG "set up the system of work ... to permit the unloading of the container", directed the plaintiff "as to the work he was to perform" and provided the forklift truck to "go up the landing, collect the pallet, and reverse down the ramp"[48]. He found that the tines of the forklift truck would "strike the bottom of the ramp causing noise and vibration" and that this "was not the fault of the driver but of the system of work"[49]. He accepted that the vehicle "was not being driven at an excessive speed"[50]. Instead, it "was being driven as it always was and this always caused vibration on the ramp and into the container"[51].[48]Tleyji v Ready Workforce Pty Ltd unreported, District Court of New South Wales, 17 April 2003 (Delaney DCJ) at [9] ("reasons of the primary judge").[49]Reasons of the primary judge at [9].[50]Reasons of the primary judge at [9].[51]Reasons of the primary judge at [9]. The primary judge generally accepted the evidence of the plaintiff[52]. In the course of considering the liability of the Nominal Defendant, he cited, with apparent acceptance, the following evidence of the plaintiff[53]:[52]Reasons of the primary judge at [6].[53]Reasons of the primary judge at [35]."Q:You said … that each time the forklift drove up the ramp, there was a bang as it hit the ramp?A:Yeah.Q:There would be some vibration of the ramp and the container?A:Yeah.Q:Sometimes the forklift … would go at speed and there would be a loud bang or a louder bang?A:Yeah.Q:There would be a greater vibration?A:Yeah when it's coming up the ramp, and it did the vibration and when it hit at first." The judge recorded the plaintiff's evidence as to the differential vibrations occasioned by the speed of the driving of the vehicle. However, he said that "[f]rom this evidence I conclude that more likely than not the accident was not caused by the manner of driving of the forklift driver but by the way the work was organised"[54]. He went on[55]:"It was argued that the bang or boomp was a negligent driving of the forklift but I do not agree. The vibration occurred as the forklift ascended the ramp. In my opinion, there was nothing which the driver did or omitted to do which contributed to the vibration. I reached that conclusion because on the day of the accident the plaintiff saw the forklift coming up the ramp, the forklift hit the ramp and there was a bang, the forklift then came up the ramp as he was watching it … The plaintiff was then hit on the back when the forklift had just about reached him when the box or boxes fell. He felt the box hit him just as the forklift was reaching the top of the ramp but the forklift was still moving. In my opinion this was not caused by the driving of the forklift in any negligent manner but the pursuit of the system of work which was implemented by [GLG]."[54]Reasons of the primary judge at [36].[55]Reasons of the primary judge at [37].

Ratio Decidendi

Legal Principle Established

Established by: KIRBY J

The Nominal Defendant's attempt, by close reference to the text of what the Attorney-General said in his second reading speech, to demonstrate that what happened was outside the definition of "injury" was of only limited success. That speech should not be employed beyond the function for which it was employed by this Court in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd, namely, to demonstrate that a purpose of the Act was to narrow the law as laid down in pre-1995 cases[15]. It is not a permissible use of the speech, for example, to say that, because it referred to crashes and collisions on the roads, and vehicles running out of control, the post-1995 definition of "injury" was limited to injuries caused in these ways, without paying regard to its precise terms. The speech criticised cases holding that the Act applied to injuries sustained during the loading and unloading of vehicles. The present appeal concerned the unloading of a container, and a non-stationary vehicle played a part in the injury; but the speech casts no direct light on the solution to the present problem. The same is true of the explanatory note on which the Nominal Defendant relied. The words of the statute, not non-statutory words seeking to explain them, have paramount significance. [15](2005) 79 ALJR 1079 at 1093 [80]-[81], 1096 [101] per Gummow, Hayne and Heydon JJ; 215 ALR 385 at 403-404, 408. Was there "fault of the owner or driver of a motor vehicle in the use or operation of the vehicle"? In Allianz Australia Insurance Ltd v GSF Australia Pty Ltd the joint judgment in this Court pointed out the importance of legislative history in construing the amendments to the definition of "injury" in 1995. It said[16]:"The third party policy first required by s 10 of the Motor Vehicles (Third Party Insurance) Act 1942 (NSW) … was to provide for insurance 'against all liability incurred by [the] owner … in respect of the death of or bodily injury to any person caused by or arising out of the use of the motor vehicle'. The phrase 'arising out of' was construed as extending to a result that was less immediate than the 'direct' or 'proximate' relationship of cause and effect indicated by the phrase 'caused by'."In 1988, the joint judgment continued, the "words 'arising out of' were banished from the legislation"[17]. The joint judgment then drew attention to the introduction, also in 1988, of s 69(1), which provides:"This Part applies to and in respect of an award of damages which relates to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle." In s 3(1) the word "injury" was defined as meaning "personal injury" and as including various matters now appearing in par (b) of the 1995 Act's definition. The joint judgment said: "It might have been thought that the new expression, 'in the use or operation', narrowed the scope of the legislation."[18] However, it pointed to a decision just before the 1995 Act which was more consonant with the language of the 1942 Act than the Act in its 1988 form. It then said that "the outcome in that case is illustrative of the situations to which the legislature gave further attention in the 1995 Act"[19].[16](2005) 79 ALJR 1079 at 1093 [84]; 215 ALR 385 at 404.[17](2005) 79 ALJR 1079 at 1094 [86]; 215 ALR 385 at 405.[18](2005) 79 ALJR 1079 at 1094 [86]; 215 ALR 385 at 405.[19](2005) 79 ALJR 1079 at 1094 [86]; 215 ALR 385 at 405. The case in question, NRMA Insurance Ltd v NSW Grain Corporation (1995) 22 MVR 317, is discussed below.