QBE Insurance (Australia) Ltd v Smith

[2005] NSWCA 130

CITATION:	QBE Insurance (Australia) Ltd. v. Smith by his next friend Avard & Anor. [2005] NSWCA 130
HEARING DATE(S):	6 April 2005
JUDGMENT DATE:	26 April 2005
JUDGMENT OF:	Hodgson JA at 1; Young CJ in Eq at 44; Campbell AJA at 56
DECISION:	1. Appeal dismissed. 2. Appellant to pay the respondents' costs of the application for leave and the appeal.

CATCHWORDS:	TORT - Negligence - Motor accident - Meaning of injury - Whether injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle - Whether the injury a result of the driving of the vehicle - Whether the injury caused during the driving of the vehicle - Meaning of driving.
CASES CITED:	Allianz Australia Insurance Ltd. v. GSF Australia Pty. Ltd. (2003) 57 NSWLR 321 Chapman v. Taylor (No.3) [2005] NSWCA 95 GLG Australia Pty. Ltd. v. The Nominal Defendant [2004] NSWCA 116 Gunter v State Transit Authority of NSW [2004] NSWCA 330 Insurance Commission of Western Australia v. Container Handlers Pty. Ltd. [2004] HCA 24, 78 ALJR 821 Prospect County Council v. Foster (2001) 33 MVR 228
PARTIES:	QBE Insurance (Australia) Limited - appellant Nathaniel Maxwell Smith by his next friend Sue Avard - 1st respondent Simon James Smith - 2nd respondent
FILE NUMBER(S):	CA 40612/04
COUNSEL:	Mr. P. Webb QC with Mr. B.G. Smith for appellant Mr. P. Hennessy SC with Mr. M. Gilbert for 1st respondent Mr. H. Marshall SC with Mr. T. Dixon for 2nd respondent
SOLICITORS:	Moray & Agnew, Sydney for appellant Stacks, Port Macquarie for 1st respondent Beilby Poulden Costello, Sydney for 2nd respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 10097/01
LOWER COURT JUDICIAL OFFICER:	Phegan DCJ

CA 40612/04
DC 10097/01

HODGSON JA
YOUNG CJ in Eq.
M.W CAMPBELL AJA

Tuesday 26 April 2005

QBE INSURANCE (AUSTRALIA) LIMITED V. Nathaniel Maxwell SMITH by his next friend SUE AVARD & ANOR.

HEADNOTE

FACTS

On 21 January 2000, the first respondent’s father, Mr Smith, was driving a truck towing a trailer that contained a boat towards certain premises. The first respondent (N), who was nine years old at the time, was sitting alongside his father as a passenger.

Mr Smith pulled the truck to a stop on the side of the road across from the gate of the premises, and, leaving the engine running, asked N to cross the road to open the gate of the premises to which the boat was to be taken. When N ran in front of the truck on to the road he was hit by a vehicle heading in the same direction as the truck, driven by Mr Jennings.

N, by a tutor sued both Mr Jennings and Mr Smith for damages for injuries sustained by the accident. Mr Jennings cross-claimed against Mr Smith for indemnity and/or contribution, and Mr Smith cross-claimed against QBE Insurance (Australia) Limited (QBE) seeking indemnity under an insurance policy.

The proceedings between N and Mr Jennings were settled. The primary judge found in favour of N against Mr Smith for breach of duty of care. He also found that, in accordance with the requirements of s. 3 of the Motor Accidents’ Compensation Act 1999 (the Act), the injury N suffered was caused by Mr Smith “in the use or operation of” his vehicle, and was “a result of” and was “caused during” the driving of the vehicle, making QBE liable under its policy issued pursuant to s. 10 of the Act.

The primary issue on appeal was whether the accident properly fell within the scope of sections 3 and 10 of the Act.

HELD

(1) Mr Smith’s fault in causing the vehicle to pause, and arranging for the gate to be opened, was fault in the use or operation of the vehicle.

(2) Mr Smith was still in the course of driving the vehicle when the injury occurred, so that the injury was caused during the driving of the vehicle.

(3) The strategy adopted by a driver of a vehicle to pass through gates was a feature of the driving, so that the injury to N was a result of the driving: Insurance Commission of Western Australia v. Container Handlers Pty.Limited [2004] HCA 24, 78 ALJR 821.

1. Appeal dismissed.

2. Appellant to pay the respondents’ costs of the application for leave and the appeal.

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CA 40612/04
DC 10097/01

HODGSON JA
YOUNG CJ in Eq.
M.W. CAMPBELL AJA

Tuesday 26 April 2005

QBE INSURANCE (AUSTRALIA) LIMITED V. Nathaniel Maxwell SMITH by his next friend SUE AVARD & ANOR.

Judgment

1 HODGSON JA: Nathaniel Smith (the plaintiff), a minor, by a tutor sued Geoffrey Jennings (Mr. Jennings) and Simon Smith (Mr. Smith), the plaintiff’s father, for damages for injuries he suffered when struck by a motor vehicle driven by Mr. Jennings. Mr. Jennings put on a cross-claim against Mr. Smith for indemnity and/or contribution, and Mr. Smith put on a cross-claim against QBE Insurance (Australia) Limited (QBE) seeking indemnity under an insurance policy.

2 These proceedings were settled as between the plaintiff and Mr. Jennings. On 30 March 2004, Phegan DCJ gave a judgment in which he found a verdict in favour of the plaintiff against Mr. Smith; and on 2 July 2004, he gave a judgment in which he gave judgment for Mr. Smith against QBE.

3 QBE seeks leave to appeal from these decisions. The application for leave was heard on the basis that if leave is granted, the appeal would be determined without further argument. In fact, leave to appeal was granted at the conclusion of the hearing.

CIRCUMSTANCES

4 The accident giving rise to the proceedings occurred on 21 January 2000, when the plaintiff was nine years old.

5 The previous evening, the family had gone crabbing at North Haven, near Port Macquarie; and for this purpose, Mr. Smith had borrowed a boat from a friend, which was normally kept at premises on Ocean Drive, North Haven.

6 At about 8am on 21 January 2000, Mr. Smith drove his truck westward along Ocean Drive, towing a trailer on which the boat was placed; and the plaintiff was sitting alongside him as a passenger.

7 Mr. Smith brought the truck to a stop on the southern side of the road, approximately opposite the house to which the boat was to be returned. As he did so, he activated the left blinker, and he left it operating and the engine running after the truck had stopped. He depressed the clutch to disengage the gears, and had his foot on the brake.

8 He then asked the plaintiff to leave the truck and cross the road to open the gate of the premises to which the boat was to be returned. The plaintiff alighted from the passenger side of the vehicle, and ran in front of the truck on to the road, where he was struck by Mr. Jennings’s car, which had come past Mr. Smith’s truck from behind it.

9 Mr. Smith’s evidence was that, as the plaintiff was getting out of the truck, he looked in the rear-view mirror on the driver’s side of the truck, and saw Mr. Jennings’s car approaching. He yelled at the plaintiff, but the plaintiff apparently did not hear him and went onto the road.

DECISION OF PRIMARY JUDGE

10 The primary judge found that Mr. Smith breached his duty of care to the plaintiff by leading him into a position of danger and failing to give him proper instructions, and also by failing to take effective action after he became aware of the oncoming vehicle. Accordingly, he found negligence proved against Mr. Smith.

11 In relation to the cross-claim against QBE, the primary judge found that the plaintiff’s injury was caused by the fault of Mr. Smith, being the owner and/or operator of the relevant motor vehicle (Mr. Smith’s truck). After discussing a number of cases, the primary judge said this:

In this case [Mr. Smith] had stopped his truck with a view to moving it across to the opposite side of the road for the purpose of reversing into the boat owner’s driveway. There was conflicting evidence from [Mr. Jennings] about whether [Mr. Smith’s] lights, either indicator or brake, were operating as [Mr. Jennings] approached. But there was no challenge to [Mr. Smith’s] evidence that he remained in the driver’s seat and kept the engine running after he pulled over.

The acts or omissions of [Mr. Smith] after he pulled over to the kerb cannot be divorced from the continuing process of driving the vehicle. The purpose of [Mr. Smith’s] dispatching his son from the vehicle to the other side of the road to open the gate was an integral part of the manoeuvre of the boat and trailer into the driveway.

I find that the injury which the plaintiff suffered in that process was caused by [Mr. Smith] “in the use or operation of” his vehicle, and was “a result of” and was “caused during” the driving of the vehicle.

12 Accordingly, the primary judge held that QBE was liable under its policy issued in accordance with s.10 of the Motor Accidents’ Compensation Act 1999 (the Act).

STATUTORY PROVISIONS

13 The provisions of the Act relevant to this appeal are the definitions of “injury” and “use or operation” in s.3, and s.10. Those provisions are as follows:

injury:
(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) includes:
(i) pre-natal injury, and
(ii) psychological or psychiatric injury, and
(iii) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses,

use or operation of a motor vehicle includes:
(a) the maintenance or parking of the vehicle, or
(b) in 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.
10 Third-party policies
(cf s 9 and Sch 1 MAA)
A third-party policy under this Act is a policy that is in the following terms:
Third-party Policy

The insurer insures the owner of the motor vehicle and any other person who at any time drives the vehicle (whether or not with the consent of the owner) against liability in respect of the death of or injury to a person caused by the fault of the owner or driver of the vehicle:
(a) if the motor vehicle is not one to which paragraph (b) applies - in the use or operation of the vehicle in any part of the Commonwealth (whether or not on a road), or
(b) if the motor vehicle is subject to an unregistered vehicle permit under the Road Transport (Vehicle Registration) Act 1997 - in the use or operation of the vehicle on any road in any part of the Commonwealth.

In this policy, words and expressions have the same meanings as in the Motor Accidents Compensation Act 1999.

GROUNDS OF APPEAL

14 There are 36 grounds set out in the draft Notice of Appeal. However, the argument on appeal was essentially about ground 33, which is as follows:

33. His Honour erred in finding that the injury which the plaintiff suffered was caused by the respondent in the use or operation of his vehicle and was a result of and was caused during the driving of the respondent’s vehicle within the meaning of sections 3 and 10 of the Act.

15 In addition, there were submissions on the question whether the primary judge’s finding to the effect that Mr. Smith’s failure to take effective measures, such as operating the right-hand blinker, after he became aware of the approach of Mr. Jennings’s car, amounted to negligence and/or was causative of the plaintiff’s injury.

SUBMISSIONS

16 Mr. Webb QC for QBE submitted that:

(1) any fault by Mr. Smith was not in the use or operation of the vehicle, but in telling the plaintiff to cross the road in circumstances of danger without proper instructions or warning;
(2) driving of a motor vehicle is actual control and management of the motor vehicle while it is in motion, so that the injury was not caused during the driving of the motor vehicle; and
(3) the injury was not a result of the driving of the motor vehicle, because it could be so only if it was caused by some feature of the driving itself.

17 Mr. Webb referred to the second reading speech in relation to the legislation introducing the definition of injury, which he said confirmed an intention to confine the application of the Act to motor accidents as generally understood.

18 In relation to his first submission, he formally submitted that the wide interpretation given to the words “use or operation of a motor vehicle” by cases such as Allianz Australia Insurance Limited v. GSF Australia Pty. Limited (2003) 57 NSWLR 321 was wrong. Even if this interpretation was correct, he submitted, this was a case where any fault was unconnected with the use or operation of the motor vehicle, as had been the case in Prospect County Council v. Foster (2001) 33 MVR 228, and cf. GLG Australia Pty. Limited v. The Nominal Defendant [2004] NSWCA 116 at [54].

19 Mr. Webb supported his second submission by reference to the discussion of the meaning of “driving” as used in somewhat similar Western Australian legislation, in Insurance Commission of Western Australia v. Container Handlers Pty. Limited [2004] HCA 24, 78 ALJR 821, especially at [52] (McHugh J), [133] (Callinan J) and [153] and [161] Heydon J.

20 Mr. Webb supported his third submission also by reference to Container Handlers, especially the judgment of McHugh J at [63]-[65].

21 Mr. Webb submitted that, even if one could identify as a fault of Mr. Smith his failure to activate his right indicator, to warn the approaching car, this had nothing to do with driving, in the sense of control of the locomotion of the vehicle: at most it was just one possible means of signalling. In any event, on the facts of this case, this failure could not be considered either negligent nor causative of the injury.

22 Mr. Marshall for Mr. Smith submitted that there was fault in the way the vehicle was being managed, at a time when driving was continuing, and the dispatching of the plaintiff to open the gate in dangerous circumstances was part of the driving process.

23 Mr. Hennessy QC for the plaintiff submitted that there was fault in the whole process of positioning the vehicle preparatory to driving through the gate and dispatching the plaintiff to open it; and this whole process was part of driving the vehicle.

24 In reply, Mr. Webb submitted that the approach suggested by Mr. Hennessy was not put below, though he did not contend that the case could have been conducted differently if it had been.

DECISION

25 I would say at once that in my opinion the approach suggested by Mr. Hennessy is within the pleadings in the case (see especially paragraphs 14(i) and 15(i) of the Amended Cross-Claim against QBE), and was put below (see pages 332-333 of the transcript).

26 Although the High Court in Container Handlers was dealing with different legislation, the judgment is relevant to this case, and it is necessary to consider it carefully.

27 The compulsory motor vehicle insurance being dealt with in that case covered liability “in respect of the death of or bodily injury to any person directly caused by, or by the driving of, the vehicle” (Motor Vehicle (Third Party Insurance) Act 1943 (WA) s.6); and s.3(7) of that Act provided:

For the purpose of this Act, the death of or bodily injury to any person shall not be taken to have been caused by a vehicle if it is not a consequence of the driving of that vehicle or of the vehicle running out of control.

28 As indicated by the headnote in the ALJR report in that case, the proceedings arose from an incident in which a man sustained severe injuries to his hand. He was a passenger in a prime mover driven by another man, who was an employee of the respondent. At the time of the incident, a low loader was attached to the prime mover. During the course of the journey, the driver stopped to make a routine inspection of the vehicle. Both the driver and the passenger noticed that two wheels were out of shape and had to be replaced. Whilst carrying out the procedure, the axel slipped resulting in the passenger’s arm being trapped under the chassis of the low loader. In those circumstances, the High Court unanimously held that the policy did not apply.

29 Gummow J held that the provisions of s.3(7) were to be read together with the words “caused by” in s.6, so that injury was not “directly caused by” the vehicle within s.6 unless it was directly a consequence of the driving of the vehicle or of the vehicle running out of control; and he held that this requirement was not satisfied, even if there was a causal connection between the driving and the injury (not being a direct causal connection). Kirby J, Callinan J and Heydon J substantially agreed with Gummow J’s construction of the Act, but did make some comments about the meaning of “driving” which have some relevance to this case.

30 On the other hand, McHugh J held that in this case the injury was directly caused by the motor vehicle, and there was an independent question whether or not the injury was a consequence of the driving of the vehicle. Thus he considered a question similar to that posed by the New South Wales Act, which is whether the injury was a result of the driving of the motor vehicle, without any explicit requirement of directness.

31 In discussing the meaning of “driving” in the Western Australian Act, McHugh J said this:

[52] The Act does not define “driving”. The debate regarding the Amendment Bill in the Legislative Council indicates that the word was to have its ordinary English meaning. The Australian Oxford Dictionary and The New Shorter Oxford English Dictionary relevantly define “drive” as to “operate and direct the course of” and to “operate and control the course of” a vehicle respectively. Thus, when the Act refers to a consequence of the “driving” of the vehicle, it refers to a consequence of the actual operation and control of the direction and speed of the vehicle. This is confirmed by the expression “or of the vehicle running out of control” in the second part of s 3(7), which conveys the notion of a vehicle in motion. This meaning of the word “driving” also finds support in a number of cases, in which the notion of driving has been held to comprehend the controlling of the movement and direction of the vehicle in a substantial sense. Reconciling the outcomes in these cases, however, is probably impossible. The inconsistencies in the conclusions reached by the courts when applying the concept of “driving” show that it is not always easy to draw a line between an activity that can be described as “driving” and one that cannot be so described. In any event, neither the decisions nor the reasoning in each case support the proposition that, after the driver has stopped and got out of the vehicle, he or she is still driving it.

32 He considered a contention of Container Handlers that the injury in this case was a consequence of the driving, because the way in which the rig was driven along rough roads in extreme heat caused the problem which required it to stop and which became the subject of attention, in the following paragraphs:

[64] It is true that, if death or injury is directly caused by the vehicle, it is not necessary that it be directly caused by the driving of the vehicle. It is sufficient if the death or injury is a consequence of the driving. Whichever limb of the indemnity is invoked, however, the legislative history and purpose of the Act demonstrate that there must be a causal link between the death or injury and some feature of the driving of the vehicle. It is not enough that the death or injury is the result of the use of the vehicle. The death or injury must be a consequence of the driving of the vehicle. The definite article "the" in front of "driving" emphasises the need to find a causal connection between the death or injury and some feature of the driving of the vehicle. It is at this stage that the case for Container Handlers fails.

[65] Nothing in the evidence suggests that any particular feature of the driving of the vehicle brought about the injury to Mr Sutton. Nothing in the evidence suggests that some feature of the driving, such as running into a drain or avoidable pothole or driving at excessive speed, caused the low loader's wheel bearings to fail or the wheels to lose their shape. If some feature of the driving had this effect, it might plausibly be suggested that Mr Sutton's injury was a consequence of that driving, because it led to the repair work which in turn led to the injury. On that hypothesis, the injury was arguably a consequence, although not a direct consequence, of the driving of the vehicle. Nevertheless, nothing in the evidence suggests that the injury to Mr Sutton was the result or effect of some feature of the driving of the vehicle.

[66] The mere fact that Mr Sutton's injury would not have occurred if the vehicle had not been driven from Port Hedland to Camp Tracey and then to Nifty or from Nifty to Port Hedland does not mean that, for the purpose of the Act, the injury to Mr Sutton was a consequence of the driving of the vehicle. The use of the vehicle to transport a heavy crane and a mine transport truck on bad roads was a necessary pre-condition for the sustaining of the injury. However, the injury was not a consequence of any feature of the driving of the prime mover and its attached load. The injury was not a result or effect of some feature of the driving of the vehicle. Taylor J's remarks in Butler [The Commonwealth v. Butler (1958) 102 CLR 465 at 467-477], although phrased in terms of "cause" and "effect" rather than "consequence", are instructive in this context:
"[T]he cause of an event is not established in the legal sense by showing, without more, that in the absence of a proved set of circumstances the event would or may not have happened, or, that a proved set of circumstances, in the widest sense, contributed to the happening of the event."

Once it is understood that using the vehicle is not equivalent to the driving of it, it is impossible to hold that the injury to Mr Sutton was a consequence of the driving of the prime mover and low loader. His injury was not a consequence of any feature of the driving of the vehicle.

33 Callinan J expressed the following view as to the meaning of “driving”:

that is the operation of a motor vehicle while it is in the control of a driver in the course of putting it into, keeping it in, or bringing its motion to a conclusion.

34 Heydon J said this:

[153] On the true construction of the policy in the light of s.3(7), it will not indemnify the owner or driver in respect of liability for negligence which may be incurred by that owner or driver in respect of death or bodily injury to any person caused by the motor vehicle, unless the death or injury is directly caused by the driving of the vehicle or by its running out of control. The full range of possible causes of injury by the agency of a motor vehicle is cut down to those which can be characterised as being a consequence of its driving or its running out of control, and further cut down by the requirement that the causal relationship must be characterised as being direct and not something wider. Since the language of the Schedule and s.3(7) is plainly intended as a means of narrowing the scope of indemnity, it is further appropriate to construe the word "consequence" as referring to something narrower than the wide ideas often encompassed in law by references to "causation" and its derivatives: "consequence" here refers to a narrower segment of the wider class of "causes". So far as the process of cutting down is effected by the reference to the driving of the vehicle, the expression is preceded by the definite article, and is used in the composite phrase "a consequence of the driving of that vehicle or of the vehicle running out of control". In that context at least, the words "the driving" refer to the actual control and management of the vehicle while it is in locomotion. " The driving" of a vehicle, in at least its core meaning in this context, is the activity conducted by a human being in the driver's seat who manages and directs the course of its movement by operating the controls - preparing to start, starting, accelerating, braking, steering, giving appropriate signals, operating the horn and lights appropriately, stopping and turning the engine off. In contrast, when the vehicle runs out of control, it is because the course of its movement has ceased to be managed and directed by the operation of the controls, or because, while stationary, its brakes have failed or it has been struck by another vehicle and it has moved off out of control.

35 Dealing first with the question of whether the fault of Mr. Smith was in the use or operation of the vehicle, in my opinion it was part of the use or operation of the vehicle for Mr. Smith to cause the vehicle to pause and to arrange for the opening of a gate through which the vehicle was to drive, in the same way as it is part of the use or operation of a vehicle for the driver to cause the vehicle to pause and to put a coin in an automatic toll system to open a toll gate to proceed. Accordingly, Mr. Smith’s fault in making arrangements to cause the gate to be opened can be regarded as fault in the use or operation of the motor vehicle.

36 In my opinion also, Mr. Smith was still in the course of driving the vehicle when the injury occurred, so that the injury was caused during the driving of the vehicle. Just as a driver does not cease driving when a vehicle pauses at a toll gate, in my opinion Mr. Smith did not cease driving when he caused the vehicle to pause, with its engine running, so as to enable the gate to be opened in order that he could proceed with the vehicle through it. In my opinion, this is not inconsistent with anything said in Container Handlers.

37 The most doubtful question is whether the injury was a result of the driving of the motor vehicle; and having regard to the policy of the legislature indicated by the terms of the amendment that introduced the new definition of “injury” and the second reading speech, and also having regard to the reasons of McHugh J in Container Handlers, I accept that this requires that the injury be the result of some feature of the driving, that is, of the way the vehicle is driven.

38 In my opinion, the strategy adopted by a driver for bringing about the passage of a vehicle through gates which bar its way, including the placing of the vehicle and the arrangements made for causing the gates to be open, is a feature of the driving of the vehicle. In this case, the positioning of the vehicle, on its own, would not have amounted to negligence if combined with proper steps to ensure that the plaintiff could safely cross the road; but the positioning of the vehicle actually effected by Mr. Smith did create an unreasonable risk of harm if those proper steps were not taken, as in fact they were not.

39 In my opinion, it would be to take too narrow a view of what happened to limit the negligence of Mr. Smith to a particular failure to give instructions or warnings to the plaintiff. In my opinion, the fault of Mr. Smith was in substance in the whole process of placing the vehicle where it was placed and not taking proper steps to ensure that the plaintiff was safe in carrying out the steps devised by Mr. Smith, as driver of the vehicle, for the opening of the gate to enable the passage of the vehicle. In my opinion, on this basis, it was a feature of the driving that resulted in the injury, so that the injury was a result of the driving of the vehicle.

40 For those reasons, in my opinion the appeal should be dismissed.

ORDERS

41 The appellant submitted that the plaintiff should not be awarded his costs of the appeal, other than in respect of filing a notice submitting to the orders of the Court and adopting Mr. Smith’s written submissions, because it was Mr. Smith who contracted with QBE and, to the extent that the plaintiff had an interest in the appeal, it was identical to that of Mr. Smith.

42 I do not agree. The plaintiff was a necessary party to the appeal and had a vital interest in its outcome. There are cases where substantial identity of interest, perhaps combined with other circumstances, may make it appropriate to deprive a party of costs or limit the amount of such costs (see for example Chapman v. Taylor (No.3) [2005] NSWCA 95); but in this case, particularly having regard to the amount of money potentially at stake, I think the ordinary result as to costs should follow.

43 Accordingly, I propose the following orders:

1. Appeal dismissed.
2. Appellant to pay the respondents’ costs of the application for leave and the appeal.

44 YOUNG CJ in EQ: I agree with the judgment of Hodgson JA but wish to make a few further observations.

45 In Gunter v State Transit Authority of NSW [2004] NSWCA 330, in a judgment with which Tobias JA and Wood CJ at CL concurred, I said that an effect of s 123 of the Motor Accidents Compensation Act 1999 (the MAC Act) was that the legislature had evinced an intention that if a claim could be brought under the MAC Act it should be so brought.

46 The MAC Act as successor to the Motor Vehicles (Third Party Insurance) Act 1942 intended to set up a scheme whereby all vehicles were to be insured under the Act with provisions to cover cases where there was a default in insurance so that where bodily injury to any person is caused by or arises out of the use of a motor vehicle there would be an insurance fund to cover the victim.

47 The objects of the MAC Act in s 5(1)(b) include "to provide compensation for compensatable injuries sustained in motor accidents." This reinforces the view that the MAC Act was intended to have a wide ambit.

48 The amendments made in 1995 were not made, it seems to me, as an intention to water down the scheme that I have mentioned. Certainly the Minister when introducing the 1995 amendments remarked that the Act was never intended to be a comprehensive accident and compensation scheme, but he said this in the context of it not being a scheme to compensate all cases of injuries connected in some way to the use of a motor vehicle. The purpose of the amendments was to exclude the more peripheral claims which had been allowed under decisions of the courts such as claims for injuries sustained during the unloading and loading of motor vehicles.

49 The changed definition of "injury" means that a person can only be compensated under the MAC Act for bodily injury:

(a) caused by the fault of the owner or driver of a motor vehicle;
(b) in the use or operation of the vehicle;
(c) if, and only if, the injury:
(i) is a result of; and
(ii) is caused
during the driving of the vehicle, or a collision, or action taken to avoid a collision (or during some other events not here relevant).

50 As Hodgson JA has noted in his reasons, the Justices of the High Court in Insurance Commission of Western Australia v Container Handlers Pty Limited (2004) 78 ALJR 821 considered similar legislation in Western Australia. As his Honour has pointed out, Callinan and Heydon JJ were of the view that driving stops when the vehicle's motion is brought to a conclusion or the engine is turned off. McHugh J thought that there was no support for the proposition that after the driver had stopped and got out of the vehicle that he or she were still driving it.

51 What the various Judges said were not part of the ratio of the case and I do not consider that they were intended to be exhaustive attempts to define the exact ambit of the concept of driving. Indeed, the way McHugh J phrased his judgment makes it fairly clear.

52 I am concerned that if one takes too narrow a view of driving then one may defeat the purpose of the Act, even though cases of accident that do not occur whilst a vehicle is being driven might come under the "collision" part of the definition.

53 I first thought that these difficulties might have to be explored in depth in this case. However, for the reasons set out by Hodgson JA, I am now of the view that this appeal can be decided without such exploration.

54 As to costs, the appellant has put that the first respondent, plaintiff, should not have his costs of the appeal. I do not consider that I should accede to this submission. The plaintiff was vitally interested in the appeal, he did not increase costs by his appearance except for the costs of solicitor and counsel on the hearing. Such appearance in fact was of very great assistance to the Court

55 I thus agree with Hodgson JA.

56 M.W. CAMPBELL AJA: I agree with Hodgson JA.

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