Scott v State of New South Wales

[2004] NSWSC 759

CITATION:	Scott v State of New South Wales [2004] NSWSC 759
HEARING DATE(S):	18 August 2004
JUDGMENT DATE:	24 August 2004
JURISDICTION:	Common Law
JUDGMENT OF:	Master Malpass at 1
DECISION:	1. The application against Gosford City Council is dismissed; 2. No orders as to costs; 3. The application to join the Nominal Defendant is dismissed; 4. The plaintiff is to pay the costs of and incidental to the application; 5. I reserve the question of costs between the plaintiff and the defendant in respect of the applications; 6. The exhibits may be returned; 7. I refer any question of costs between the plaintiff and the defendant (including any question of a Bullock order) to a registrar for hearing.
CATCHWORDS:	Injury caused by slipping from fire truck - ownership of vehicle - not caused by defect in vehicle - not entitled to sue Nominal Defendant.
LEGISLATION CITED:	Motor Accidents Act 1988 Motor Accidents Compensation Act 1999
CASES CITED:	AMP General Insurance Ltd v Mayne Nickless Ltd [2000] NSWCA 213 Emad Trolley Pty Ltd v Shigar [2003] NSWCA 231
PARTIES :	Steven Robert Scott (Plaintiff) State of New South Wales (Defendant) Gosford City Council (Second Defendant) Nominal Defendant (Third Defendant)
FILE NUMBER(S):	SC 20910/01
COUNSEL:	Mr G Beauchamp (Plaintiff) Mr P Cummings (Second Defendant) Mr H Silvester (Third Defendant)
SOLICITORS:	Firths (Plaintiff) Hunt & Hunt (Second Defendant) Sparke Helmore (Third Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Tuesday 24 August 2004

20910 of 2001 Steven Robert Scott v State of New South Wales

REASONS FOR JUDGMENT

1 Master: The plaintiff had been the chief flying instructor and chief pilot of the University of South Australia Flying School. This employment was terminated and he moved to New South Wales.

2 He joined the New South Wales Bush Fire Brigade (the Brigade) in approximately March 1999. As such, he was a volunteer and not a paid employee of the Brigade. Under the relevant legislation, he was deemed to be an employee of the defendant.

3 On 7 September 1999, he was performing voluntary duties and attended the scene of a motor vehicle accident. The Brigade provided him and his fellow volunteers with a truck and other equipment (including clothing). He was the driver. After completion of the task (which involved spraying chemical foam on the vehicles), the truck had to be refilled with the water from the nearest fire hydrant. He climbed onto the truck for the purpose of taking down what is described as a stand pipe (it was used to open the hydrant). He says that in descending from the vehicle, he slipped and fell into a hole in the ground, suffering inter alia injury to his left knee.

4 Following the accident, he made a claim for compensation. On 10 November 1999, he first saw a solicitor (Mr Mickels), his present solicitor.

5 He commenced these proceedings on 20 November 2001. He sued the defendant as his deemed employer. He claimed damages founded on negligence arising out of the work injury on 7 September 1999.

6 It took about 16 months for the defendant to file and serve its defence. It was served in March 2003. It is contended that the defence put in issue the question of ownership of the truck. The was no admission of responsibility for supervision and equipment.

7 Thereafter, steps were taken to pursue this question with the defendant. By letters dated 12 August 2003 and 24 September 2003, the defendant raised the question of Gosford City Council (the Council) being the owner of the truck. It also raised the question of the application of the Motor Accidents Act 1988 and of intention to amend its defence to plead the Nominal Defendant provisions thereof.

8 This information led to the plaintiff filing a notice of motion on 20 October 2003. He adopts the stance that he was driven to take that step by the defendant.

9 The notice of motion sought the addition of both the Council and the Nominal Defendant as additional defendant. As the relevant limitation periods for the bringing of proceedings against both proposed defendants had expired, an extension of time was also sought.

10 The notice of motion was served on both the defendant and the proposed defendants.

11 The notice of motion came on for hearing on 18 August 2004. It was defended by both proposed defendants. The defendant did not appear. It wishes to be heard only on any question as to costs. The court has been told that the defendant is prepared to abide by the decisions made on other questions.

12 After the commencement of the hearing, the Council placed material before the court dealing with the question of ownership. The plaintiff did not lead any evidence to rebut this material.

13 What had been placed before the court demonstrated that, not only did the plaintiff not have an arguable case against the Council on the question of ownership, but that the Council was indeed not the owner of the vehicle.

14 Without opposition from the plaintiff, the application brought against the Council was dismissed and counsel for that party was excused from further attendance.

15 The application then proceeded against the Nominal Defendant only. It was defended on a variety of grounds.

16 The plaintiff has read a formidable number of affidavits. Two were sworn by the plaintiff. The balance was sworn by his solicitor. The plaintiff was extensively cross-examined. Both parties have tendered documentation.

17 Shortly after the commencement of submissions, it became apparent that there was a preliminary question which should be first addressed by the court. It was the question of whether of not the Act applied to the injury suffered on 7 September 1999. The question presented a curious situation for the court.

18 Both the plaintiff and the Nominal Defendant espouse the view that the Act has no application. However, the plaintiff has expressed concern by reason of the stance taken by the defendant and recent observations made by the Court of Appeal.

19 The court proceeded to hear submissions on that question. Following completion of those submissions, the parties were informed that the court had reached the decision that the Act did not apply to the injury. Brief reasons for the decision were given. An order was made dismissing the application to join the Nominal Defendant as a party to the proceedings.

20 The parties were informed that more detailed reasons would be provided in due course. By consent, the court dispensed with any further need for the parties to attend court in respect of the joinder application and advised them that the reasons would be forwarded following their preparation.

21 I now proceed to set out those reasons.

22 Section 33 of the Act enables an action for recovery of damages in respect of inter alia injury to a person caused by the fault of the owner or driver of a motor vehicle that is not an insured motor vehicle in the use or operation of the vehicle on a road in New South Wales against the Nominal Defendant.

23 For the purposes of this provision, the relevant definition of “injury” is to be found in s3 of the Motor Accidents Compensation Act 1999.

24 It is common ground that the only aspect of the definition that could be relied on by the plaintiff is to be found in (a)(iv).

25 The relevant part of the definition is as follows:-

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

26 At this stage, it is convenient to mention such of the evidence as is relevant to this question.

27 The plaintiff had been the driver of the vehicle. At the time of the injury, the vehicle was unoccupied and in a stationary position. It was not (and not required to be) registered.

28 The plaintiff’s evidence is that he slipped whilst descending from the truck following the placing of his foot on a step which was at the back of the truck beside the towbar. He said that he was unable to provide a definitive reason for the slipping. He opined that it may have been due to foam on the step or followed the placing of his foot on the towball (which formed part of the step).

29 The claim pleaded against the defendant is one of failure to provide a safe system of work. The court was informed that the case intended to be propounded at trial was that the slipping was caused by a combination of factors (including the foam on the step and the footwear supplied by the Brigade and worn by the plaintiff at the time of the incident).

30 There is evidence that following the accident the vehicle has been fitted with additional safety equipment (including non-slip material on steps and handrail modifications).

31 The information placed before the court concerning the truck is limited. The court does not have a photograph of the vehicle. There is no expert’s report. There is nothing to suggest that the vehicle itself was in any respect defective.

32 It is only necessary to look at one question to dispose of this application (the question of whether there is any connection between the injury and any defect in the vehicle).

33 Each case can be expected to turn on its own particular facts. In the circumstances of this case, I am satisfied that any defect in the vehicle did not play any part in the causation of the injury. There is no evidence of any defect in the step. The evidence is that he fell to the ground inter alia because of the surface of the step. It has similarity to the facts in AMP General Insurance Ltd v Mayne Nickless Ltd [2000] NSWCA 213.

34 During the course of argument, the court was referred to various decided cases and in particular to observations made in Emad Trolley Pty Ltd v Shigar [2003] NSWCA 231 (see paragraph 83). In my view, those observations relate to a question different to the one on which this application has been decided. They concern the question of “fault”.

35 Accordingly, I am of the view that the injury suffered by the plaintiff was not a result of or caused by a defect in the truck. It follows that the Act does not enable the plaintiff to bring an action against the Nominal Defendant.

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Last Modified: 08/24/2004