Pender v Power Coal

[2002] NSWSC 925

CITATION:	Pender v Power Coal [2002] NSWSC 925 revised - 04/10/2002
FILE NUMBER(S):	SC 20772/01
HEARING DATE(S):	25-26/9/02
JUDGMENT DATE:	26 September 2002
PARTIES :	Ian Leslie Pender Power Coal Pty Limited
JUDGMENT OF:	Wood CJatCL at 1

COUNSEL :	D Nock SC J Gleeson QC
SOLICITORS:	Barry F. Cosier & Associates Spark Helmore
CATCHWORDS:	CIVIL LAW - compensation for workplace injury - mining injury - jurisdictional point.
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 Workers Compensation Act 1987
CASES CITED:	Akhrass v Allianz Australia Insurance & Anor [2002] NSWSC 352 Balfour Beatty Power Constructions (Australia) Pty Ltd v Government Insurance Office of New South Wales NSWCA 18 July 1996 Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 483 Government Insurance Office of New South Wales v RJ Green and Lloyd Pty Ltd (1966) 114 CLR 437 Mercantile Mutual Insurance Aust Limited v Moulding (1995) 22 MVR 325 NRMA Insurance Ltd v New South Wales Grain Corporation (1995) 22 MVR 317 Prospect County Council v Foster [2001] NSWCA 117 Zurich Australian Insurance Ltd v CSR Ltd [2001] NSWCA 261
DECISION:	See paras 60 and 61

- 19 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WOOD CJ at CL

Thursday 26 September 2002

20772/01 – Ian Leslie Pender v Power Coal Pty Limited

JUDGMENT

1 HIS HONOUR: The defendant has filed a notice of motion seeking an order that the proceedings be struck out. The application arises in circumstances where the plaintiff was injured on 15 December 1999 while working in the Angus Place Colliery of the defendant, and in circumstances where he commenced an action in this court on 12 September 2001.

2 By reason of the need to deal with the costs of the proceedings, it is appropriate to note something of its history. Following service of the statement of claim, an appearance was filed on behalf of the defendant on 8 October 2001, on which date the defendant also filed a requisition for a jury. The plaintiff's Differential Case Management document was filed on 11 January 2002, and the defendant's DCM document was filed on 2 August 2002. In the meantime, on various occasions, the matter came before the court following the filing of a defence by the defendant on 15 October 2001.

3 Directions were initially given on 20 February 2002, on which date a final conference was appointed for 1 August 2002. Further directions were made on 1 August 2002, and then on 9 August 2002, during a telephone conference, the matter was fixed as being ready for hearing during the sittings of the Supreme Court at Orange commencing on 23 September 2002.

4 The plaintiff's claim, as appears from the statement of claim and the DCM documents, is one which asserts that he was injured when fellow workers were attempting to unwind a 50-millimetre reinforced water hose, which had been wound around a 750-kilogram metal drum. The co-workers had tried to unwind the hose by pushing the drum. However, because of the incline on which they were working, and the tendency of the hose to follow the drum, they could not manage this task by hand.

5 A decision was made to place a steel pipe through the centre of the drum to act as a spindle or axle, to anchor the free end of the hose to a parked PJB, and then to move the drum away from the PJB by means of a forklift. The drum was secured between the forklift tines by low strength white nylon rope, which was used to tie the ends of the metal pipe to the horns of the forklift lifting frame.

6 Having so secured the drum and having set up what was clearly an improvised system of work, it is alleged that the operator of the forklift reversed the vehicle, pulling the drum along the ground without lifting it free of the ground. His intention was that the drum would then revolve and release the hose, allowing it to roll out.

7 The problem which then emerged was that, by reason of the difference between the diameter of the hose and the drum, the hose came under tension and began to snake causing the plaintiff, who was standing nearby waiting to change a filter cartridge, to fall to the ground. The added tension then caused the drum lashing to break with the consequence that the drum fell off the forklift and rolled on to the plaintiff, causing the injuries in respect of which he now seeks damages.

8 In the expert's report, which was attached to the affidavit filed in support of the notice of motion, the apparent folly of the exercise being undertaken was explained in some detail. That report suggests, additionally, that there were other safe ways of undertaking the exercise using, for example, an Eimco hydraulic reeler which would not have involved the use of a forklift. Other methods were also identified.

9 The forklift in question, it was conceded by the plaintiff, does constitute a motor vehicle at law as does the PJB. Neither was registered, being in use by the defendant's staff within the mine. The insurer of the defendant is not an authorised third party insurer.

10 The application brought by the defendant which, in effect, is to strike out the proceedings for lack of jurisdiction depends upon the interaction of the Workers Compensation Act 1987 and the Motor Accidents Compensation Act 1999 (hereafter referred to as the MAC Act). That Act commenced on 2 October 1999, that is prior to the plaintiff's accident.

11 S 151A of the Workers Compensation Act which applied to claims for damages (such as the present calim) which were commenced prior to 27 November 2001, provided as follows:

"(1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act then (except to the extent that subsection (2), (3) or (4) covers the case):
(a) the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and
(b) the amount of any weekly payments of compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation…"

12 Section 151E, which commenced on 5 October 1999, provides in relation to claims for modified Common Law damages:

“ (1) This Division applies to an award of damages in respect of:
(a) an injury to a worker; or
(b) the death of a worker resulting from or caused by an injury, being an injury caused by the negligence or other tort of the worker's employer.
(2) This Division does not apply to an award of damages to which Part 6 of the Motor Accidents Act 1988 or Chapter 5 of the Motor Accidents Compensation Act 1999 applies. "

13 The MAC Act in s 3 contains the following definitions of some relevance:

" claim means a claim for damages in respect of 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.
Claimant means a person who makes or is entitled to make a claim.
...
Injury :
(a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle if, and only if, the injury is a result of and is caused during:
(i) the driving of the vehicle, or
…

(iv) such use or operation by a defect in the vehicle,

…
Injured person means a person who suffers such an injury.
...

Motor accident means an accident or incident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which causes the death of or injury to a person.

...

Use or operation of a motor vehicle includes:

(a) the maintenance or parking of the vehicle”

14 In the case of an unregistered motor vehicle, the Act provides that:

“ 4 Meaning of "owner" of motor vehicle

(1) For the purposes of this Act:

…
(b) in the case of a motor vehicle that is unregistered, the owner is any person who solely or jointly or in common with any other person is entitled to the immediate possession of the vehicle"

15 The Act specifies its objects in s 5, and s 6, the interpretation section, provides:

" 6 Interpretation and application of Act by reference to objects

(1) In the interpretation of a provision of this Act or the regulations, a construction that would promote the objects of this Act or the provision is to be preferred to a construction that would not promote those objects."

16 Chapter 3 of the Act, which makes provision in relation to “Motor Accident Injuries”, contains further definitions of relevance insofar as s 42 provides:

"Definitions

In this Chapter:

Insurer , in relation to a person, means the insurer who insures the person against the person's liability for damages in respect of a claim, whether or not under a third-party policy”

17 Section 43 provides, in relation to the application of that chapter:

“(1) This Chapter applies to and in respect of an injury caused by a motor accident occurring after the commencement of this Act.

(2) This Chapter applies to and in respect of an injury whether or not there is a third-party policy in respect of liability for the injury."

18 Equivalent provisions are contained in chapter 4 under the heading "Motor Accident Claims" in ss 66 and 67.

19 Within Pt 4.4, "Claims Assessment and Resolution" there are contained the following provisions of relevance for the present proceedings:

"Section 88 Definitions
(1) In this Part:

Claims assessor means an officer of the Authority in the Motor Accidents Claims Assessment and Resolution Service who is designated as a claims assessor pursuant to section 99.

Party to an assessment under this Part means the claimant or the insurer in respect of the claim referred for assessment.

Principal Claims Assessor means the claims assessor designated as the Principal Claims Assessor pursuant to section 99.

…

(2) A reference in this Part to referring a claim for assessment under this Part includes a reference to referring a claim for a certificate of exemption from assessment under this Part.

(3) A reference in this Part to an assessment of a claim includes a reference to the result of the assessment.

89 Application

(1) This Part applies to any claim, whether or not the insurer admits or denies liability.

(2) Nothing in this Part prevents a claim from being settled at any time.

...

92 Claims exempt from assessment

(1) A claim is exempt from assessment under this Part if:

(a) the claim is of a kind that is exempt under MAA Claims Assessment Guidelines or the regulations, or

(b) a claims assessor has made a preliminary assessment of the claim and has determined (with the approval of the Principal Claims Assessor) that it is not suitable for assessment under this Part.

(2) If a claim is exempt from assessment under this Part, the Principal Claims Assessor must, as soon as practicable, issue the insurer and claimant with a certificate to that effect (enabling court proceedings to be commenced in respect of the claim concerned).

...

94 Assessment of claims

(1) The claims assessor is, in respect of a claim referred to the assessor for assessment, to make an assessment of:

(a) the issue of liability for the claim (unless the insurer has accepted liability), and

(b) the amount of damages for that liability."

...

108 Claims assessment or exemption pre-condition for commencement of court proceedings

(1) A claimant is not entitled to commence court proceedings against another person in respect of a claim unless:

(a) the Principal Claims Assessor has issued a certificate in respect of the claim under section 92 (Claims exempt from assessment), or

(b) a claims assessor has issued a certificate in respect of the claim under section 94 (Assessment o claims).”

20 Chapter 5 concerning the “Award of Damages” then provides, relevantly for the present motion:

" 122 Damages in respect of motor accidents (cf s 69 (1) MAA)
(1) This Chapter 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.

(2) This Chapter does not apply to or in respect of a motor accident occurring before the commencement of this Act.

123 General regulation of court awards (cf s 70 MAA)

A court cannot award damages to a person in respect of a motor accident contrary to this Chapter.”

21 It is accepted that, until late last week, no-one had focussed upon the interaction of the legislation, or upon the question whether or not the present accident fell within the MAC Act, and accordingly was not capable of being pursued as a claim for modified Common Law damages pursuant to the Workers Compensation Act, or capable of being pursued in this Court, as a MAC Act claim, absent the issue of the relevant certificates referred to in s 108.

22 This is evident not only from the affidavit filed in support of the motion, but also from the conduct of the case, by both parties, from the time from its commencement until and including the final telephone conference on 9 August 2002.

23 The question which the defendant has now identified as arising is whether the combined effect of the provisions mentioned, in the factual circumstances of this case, means that the plaintiff is unable, absent the issue of appropriate certificate under ss 92 or 94 of the MAC Act, to maintain the present proceedings. If the claim does fall within the operation of that Act, then it is accepted, for the reasons identified in the decision of Master Malpass in Akhrass v Allianz Australia Insurance & Anor [2002] NSWSC 352, confirmed by Dunford J on appeal [2002] NSWSC 772, that the action is not maintainable in the absence of such a certificate. No such certificate has been issued.

24 Before turning to that question, since the possible relevance of a vehicle having been unregistered was raised at one stage in argument, I note that a claim against the Nominal Defendant could not have been pursued in this case, since the accident did not occur on “a road in New South Wales”, (s 33 (1) MAC Act).

25 I also observe that, so far as the defendant's case depends on the plaintiff bringing an action against the “owner” of the forklift, s 4(1)(b) of the MAC Act defines the owner, in the case of an unregistered vehicle, as follows:

" In the case of a motor vehicle that is unregistered, the owner is any person who solely or jointly or in common with any other person is entitled to the immediate possession of the vehicle."

26 As I understand it, there is no dispute that the defendant would answer the description of an owner within this extended definition, irrespective of where legal title to the forklift or the PJB rests.

27 I further note, for completion, that while s 15 of the MAC Act provides:

" 15 Risks not insured under third-party policies

A third-party policy does not extend to insure the owner or driver of a motor vehicle against:

(a) a liability to pay compensation under the Workers Compensation Acts (or any corresponding law of another State or a Territory of the Commonwealth) to a worker employed by the owner or driver, or

…"

28 This section relates to a liability to pay “workers' compensation”, not modified Common Law damages, and it can accordingly be placed to one side.

29 Finally, I note that it is common ground that the assessment of damages in respect of an injury caused by a motor accident, within the meaning of the MAC Act is to be conducted in accordance with that Act, whether there is a third party policy on foot, or not.

30 Essentially, the issue which arises is whether the plaintiff's claim is one for damages in respect of an injury "caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle." This calls for an examination of the several cases which have been decided, in relation to the Motor Accident Act 1988 and similar legislation, where consideration has been given to the question whether or not, in various factual scenarios, the fault relied upon occurred "in the use or operation of the vehicle."

31 The continued use of this expression in the relevant legislation strongly supports the proposition that it should receive a consistent interpretation.

32 In an earlier case in these sittings, Nugent v Springvale Cole Pty Ltd, which was settled without any need for reasons being delivered, Mr Gleeson of senior counsel for the defendant addressed a submission along the lines that, irrespective of the cause of an accident leading to bodily injury, the Act applied so long as it occurred while a motor vehicle was being used.

33 That case involved a PJB striking a hole in an underground road which had negligently been left unrepaired and unmarked by any form of warning. I ruled that, if the plaintiff's case was confined to the breach of the mine's duty of care concerning the state of the road, and did not depend upon the negligence of the driver of the PJB, or any defect in the PJB itself, then the MAC Act did not apply.

34 In that regard I drew support from the decision of the Court of Appeal in Prospect County Council v Foster [2001] NSWCA 117.

35 That was a case where the plaintiff was electrocuted while working on electricity wires from a stationary cherrypicker, or elevated work platform, which answered the description of a motor vehicle. The cause of his accident had nothing to do with the use or operation of the cherrypicker. It was due to the failure of the lamp tester which had been provided by the employer, and which had been used to determine whether the conductors were inert, to the failure to properly test it, to the failure to provide an alternative device which had a second method for detecting whether the conductors were live, and/or the failure to supply insulating gloves or protective clothing.

36 Additionally there was non-compliance with a regulation concerning the provision of protective clothing and of insulated covering for the conductor, and also concerning the isolation of any conductor other than that upon which work was to be undertaken.

37 The cherrypicker, it was accepted, had played no role in the accident, apart from bringing the plaintiff and his assistant into proximity to the conductors so that they could carry out the necessary restoration work.

38 It was held, distinguishing NRMA Insurance Ltd v New South Wales Grain Corporation (1995) 22 MVR 317, and Mercantile Mutual Insurance Aust Limited v Moulding (1995) 22 MVR 325, that the various grounds of negligence and breach of statutory duty, which were shown to have existed, did not involve "fault in the use or operation of the cherrypicker in the ordinary meaning of those words."

39 In the Grain Corporation case the injury had occurred in the use of a vehicle while it was being unloaded, while in the Moulding case it had occurred while cargo, in the form of a lamb, was being loaded into a utility which by reason of the presence, in its tray, of a loaded and cocked rifle with its safety catch off, was unsafe for the purpose of receiving cargo.

40 Handley JA observed in Prospect County Council that:

" The appellant's case turns essentially on the fact that the workers, including the plaintiff, could only be brought into close proximity to their work station on this electric pole and the source of danger in the live wires by the use of the cherrypicker. However, this does not establish that the fault of the County Council was fault 'in' the use of the vehicle. In the end, it seems to me the highest that the case could be put on behalf of the appellant was that the vehicle was being used when the fault of the County Council caused the plaintiff to suffer his injuries. It is not sufficient in my judgment that the fault of the owner should be fault which occurs while the vehicle is being used if it is not fault in the use of the vehicle. Here it seems to me the employer's fault lay elsewhere. There was nothing wrong with the use of the vehicle as such and the highest it could be put is that the vehicle was being used but that is not, in my judgment, sufficient."

41 Davies AJA, agreeing with Handley JA, observed:

" I agree with Handley JA but would add a few words of my own. The fault which caused the employee's injury comprised the provision of a test lamp which was faulty and the failure to test it, or to test it properly, both before and after its use, according to appropriate practice. The use of the test lamp and the failure to test it, or to test it properly, occurred prior to the subject use of the vehicle, the EPV. There was no fault in the EPV itself and no negligence in its handling, for it was operated in the context that the conductors had been tested and found not to be alive. In such a context, the system of work adopted in which the EPV was used was, on its face, a safe system of work."

42 Ipp AJA also agreed, observing:

" I agree with Handley JA and Davies AJA. I wish merely also to add a few words. The operative phrase in the relevant indemnity provision is "death of or injury to a person caused by the fault of the owner or driver of the vehicle in the use or operation of the vehicle". The term "caused by" requires a direct or proximate relationship (Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 483 at 505). It follows that the indemnity is only triggered when there is a direct and proximate relationship between the death or injury to a person on the one hand and the fault of the owner or driver of the vehicle in its use or operation on the other. "

43 To the loading cases can be added Balfour Beatty Power Constructions (Australia) Pty Ltd v Government Insurance Office of New South Wales NSWCA 18 July 1996, where Mahoney JA emphasised the need for a case by case approach, since the “application of the Act to a given set of facts does not lead inevitably to one conclusion rather than another”.

44 In that case, the plaintiff's injury occurred while he was manually lifting a press, in the course of carrying it 6 metres or so preparatory to loading it on to a trailer attached to a motor vehicle. The lifting of the press was held, upon the particular facts of the case, to have been part of a “single act of loading the vehicle” and hence part of its use, it being intended that once loaded the press would be transported to its new destination.

45 Had the vehicle been used for some purpose other than one which was part of the loading exercise, it would appear that Meagher JA would have come to a different conclusion. Otherwise his Honour placed reliance on the observations of the High Court in Government Insurance Office of New South Wales v RJ Green and Lloyd Pty Ltd (1966) 114 CLR 437 where emphasis was placed on the circumstance that:

" The loading of a vehicle destined to be used, and ordinarily used, for the carriage of goods is a necessary element in its ordinary use. "

46 Each of the Grain Corporation and Moulding cases therefore turned upon the decisive consideration that the exercise being undertaken was incidental to the use of the vehicle for carrying the goods which were to be loaded on to it, or which, having been loaded on it, were now being unloaded.

47 Reference may also be made to Zurich Australian Insurance Ltd v CSR Ltd [2001] NSWCA 261, which was concerned with the question whether a third party policy extended to cover the employer's liability for an injury, which had been suffered by one of its workers while he was lifting a loading ramp, which was itself part of a custom built trailer attached to a truck.

48 It was held that the lifting of a ramp by the worker was an intended mode of operation of the trailer and involved a defect in the vehicle, thereby bringing the case within the ambit of the definition of "injury" in the Act, as the trailer was not fit for the use to which it was intended to be put.

49 Of immediate relevance to the present case are the following passages in the judgment of Spigelman CJ:

" 29 The first submission was, essentially, one of characterisation. The Appellant submitted that the injury was not caused "in the use and operation of" the trailer. The injury was caused by an unsafe system or work or in the design of the trailer. Nothing in the language used, or the scope, purpose or operation of the Act, suggests that a dual characterisation of 'fault' is impermissible. The definition applies so long as the fault may be characterised in the way set out within it. It matters not that some other characterisation may also be appropriate.

This issue has been determined against the Appellant in this Court. See NRMA Insurance Ltd v NSW Grain Corporation (1995) 22 MVR 317 esp at 319; Balfour Beatty Power Constructions (Australia) Pty Ltd v Government Insurance Office (NSW) (1996) 24 MVR 162 at 163-164; AMP General Insurance v Brett (1999) 27 MVR 492 at 495. In my opinion the reasoning in these cases is correct and should be followed. "

50 In my view an application of these decisions, in the present proceedings, points to only one conclusion, namely that the case which the plaintiff wishes to pursue is one whereby his injury is alleged to have been caused by the fault of the owner and/or driver of a motor vehicle in its use or operation.

51 I refrain from making any positive finding as to fault since, having not heard the evidence, it would be inappropriate to deliver a judgment which might involve an issue estoppel relating to liability. My observations in this regard, including the earlier reference to the expert's report, are accordingly to be confined to an understanding of the way in which the plaintiff's claim is to be characterised. They do not constitute findings of fault, that being necessarily reserved for another day.

52 That the fault in this case is alleged to have occurred in the use or operation of a motor vehicle, arises from the circumstances that the negligence relied upon essentially goes to the following:

(a) the loading of the drum was loaded on to the forklift with the intention of transporting it in reverse away from the PJB to which the hose had been anchored;

(b) the ineffective and insecure manner in which the drum was secured to the forklift or tied down while it was being moved, an event having some similarity to that which might arise where a load is ineffectively or unsafely secured to a truck and then falls from it;

(c) the increase in tension placed upon the hose when the forklift carrying the drum was placed into motion;

(d) the failure of the operator of the forklift to keep a watch out for stretching of the hose and/or to stop the forklift to check from time to time whether it was safe to continue with the improvised procedure which had been adopted;

(e) the use of the PJB, itself a motor vehicle, as an anchoring point;

(f) the failure to keep the loaded drum clear of the ground while the forklift was in motion;

(g) proceeding to move the forklift in circumstances where there were other workers in close vicinity, who risked injury if the hose tightened or if the loaded drum broke free of its restraints;

(h) using a forklift as a pulling device rather than a lifting device.

53 These particulars of negligence need to be considered in the light of the admitted fact that a forklift is a motor vehicle, and in the light of the further fact that it is designed for the use of lifting and moving heavy objects secured within its tines or within such other restraints as are necessary to ensure that its load remains secure.

54 There are many other ways in which the plaintiff's claim might be put but in whatever way that is done, it appears to me that his case comes down to fault in the use or operation of a motor vehicle. It stands in quite a separate position from that considered in Prospect County Council or in the other case which was considered by me earlier in the sittings.

55 As the decisions in New South Wales Grain Corporation and in Zurich Australian make clear, it is not to the point the case could also answer the characterisation of one based upon an unsafe system of work, or upon the failure of an employer to provide appropriate plant or equipment or to properly supervise a work activity.

56 For these reasons I am of the view that the defendant's application has been made good, with the consequence that the statement of claim should be struck out, on the ground that the conditions precedent to the commencement of proceedings in the Supreme Court have not been met.

57 This is not a bar to future action. It merely means that the procedural steps for a claim under the MAC Act have to be taken, and the various steps which thereafter rest upon the defendant followed, before proceedings can be instituted and pursued in the appropriate court.

58 Had the point taken not been one going to jurisdiction, I would have refused leave to the defendant to file the notice of motion in circumstances where the matter had been allowed to continue to the point of being called on for hearing. Each party had fully prepared the matter as one suitable for determination as a claim for modified Common Law damages under the Workers Compensation Act; and the plaintiff has, in effect, been lulled into a false sense of security and will no doubt now incur significant additional legal costs, and will suffer further delay in the resolution of his claim, which could have been avoided had the point been taken by the defendant in a timely fashion.

59 Whether the Legislature ever directed its attention to cases such as the present involving the type of equipment in question, and the manner of their use in coal or hard rock mines, and whether it is appropriate that such cases should be determined under the MAC Act, or under the Workers Compensation Act is no doubt debatable. In view of the clear wording of the legislation, however, this is not a case where there is any ambiguity which would permit of an application of the purposive rule of interpretation an application of s 6 of the MAC Act.

60 As a result I make an order permitting the defendant to file the amended defence which for the first time raised the point. I also direct that the proceedings be struck out, although clearly without prejudice to the bringing in the appropriate court of fresh proceedings under the MAC Act, once the necessary steps have been taken.

61 This brings me to the question of costs which I find somewhat problematic. It must be said that it is most regrettable that this point was taken by the defendant so late in the proceedings. However, an obligation did rest with the plaintiff to commence the action in the appropriate format, and to follow the requirements of whichever Act applied to the proceedings. As I have observed, the result of the application will be to defer consideration of a claim which will, no doubt, eventually occupy the time of a court, as well as that of those who are responsible for assessment under the MAC Act, unless the claim can be otherwise settled.

62 It would have been possible for the defendant to have waived compliance with the condition precedent, and to have allowed the matter to proceed before me so far as it could under the MAC Act. However, it was not obligatory upon the defendant to do so. As a matter of law it was fully entitled to take the point which it has taken and, having done so, the outcome was obvious.

63 It is more than troublesome that the point did not emerge until so late in the proceedings, and it is equally unsatisfactory that, as a consequence of it, the plaintiff has incurred costs which will be largely wasted. I have been informed that the matter was first brought to attention late last week, although the motion was not itself filed until the matter was called on for hearing yesterday pursuant to leave then granted by me.

64 The point has arisen for the first time in these sittings, and it was one which was not apparent to either the plaintiff's legal advisers, to the defendant's legal advisers, or to the insurer of the defendant which is the general insurer for the industry, and which as such, might have been expected to have given proper consideration to it once the legislation came into force.

65 There is obviously a degree of fault on both sides, and the question really is whether I should order each party to pay its own costs, as Mr Gleeson suggests is appropriate, or whether I should order the defendant to pay the entirety of the plaintiff's costs, on an indemnity basis, as Mr Nock contends.

66 I think that the appropriate course falls between those two positions, it being my view that those representing the defendant should have raised the matter in a more timely fashion, having regard to the position of Coal Miners Insurance as a general insurer in the industry.

67 I take the view that the defendant should pay the plaintiff's costs up until the time of and including the final conference which was fixed for 1 August 2002. I so order. Thereafter I direct that each party pay its own costs.

68 I make the costs order mentioned for the reason that the costs of the plaintiff incurred up and until the final conference, have been concerned principally in the investigation of the liability and medical issues and they will be as relevant for a MAC claim as they would have been for a modified common law damages claim under the Workers Compensation Act. It would be unfair to expect the plaintiff to bear the whole of such costs in circumstances where he obviously has, at least, a more than reasonable prospect of successfully establishing a claim under the MAC Act, and in circumstances where the industry insurer should have identified the point at issue from the outset, yet it allowed the plaintiff to continue the action, up to the moment it was called on for hearing.

69 I add, finally, that close consideration on the part of the industry, and the Legislation, is required of the question whether accidents underground, which involve the use of equipment falling within the definition of motor vehicles, should be exempt from the operation of the MAC Act. The use of vehicles with the modifications required for mining purposes, and the nature of the activities in which they are displayed arguably places them in a very different category from that which would apply to the use of conventional vehicles above ground.

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Last Modified: 10/08/2002