Stradbroke Sandblasting Company v. Suncorp

[1993] QCA 274

IN THE COURT OF APPEAL  [1993] QCA 274

SUPREME COURT OF QUEENSLAND

Appeal No. 48 of 1993

Brisbane

[Stradbroke Sandblasting Company v. Suncorp]

BETWEEN:

STRADBROKE SANDBLASTING COMPANY PTY LTD

(First Defendant)

AND:

KEVIN WALSH

(Second Defendant)     Appellants

AND:

SUNCORP INSURANCE AND FINANCE

(Third Party)     Respondent

______________________________________________________________

THE PRESIDENT

PINCUS J.A.
DAVIES J.A.

______________________________________________________________

Judgment delivered 05/08/1993

REASONS FOR JUDGMENT - THE COURT

______________________________________________________________

APPEAL DISMISSED WITH COSTS

______________________________________________________________

CATCHWORDS:                INSURANCE - MOTOR VEHICLES - Appellants claim indemnity from respondent in respect of injury suffered by plaintiff when crane struck power lines whilst loading trailer - whether damages in respect of the trailer

Motor Vehicles Insurance Act 1936, s. 3(1)
Technical Products Pty Ltd v. SGIO (Qld) (1989) 167 C.L.R. 44 - con

Counsel:Mr Hanson Q.C. for the Appellants

Mr King-Scott for the Respondent

Solicitors:Quinlan Miller & Treston for the Appellants

O'Mara Patterson & Perrier for the Respondent

Hearing Date(s):  26 July 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 48 of 1993

Brisbane

[Stradbroke Sandblasting Company v. Suncorp]

BeforeThe President

Mr Justice Pincus

Mr Justice Davies

BETWEEN:

STRADBROKE SANDBLASTING COMPANY PTY LTD

(First Defendant)

AND:

KEVIN WALSH

(Second Defendant)     Appellants

AND:

SUNCORP INSURANCE AND FINANCE

(Third Party)     Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 05/08/1993

The appellants were defendants in an action in the Supreme Court for damages for personal injuries by Darren Craig Cox ("the plaintiff").  In that action, the appellants joined the respondent as a third party alleging that the plaintiff's injuries were caused by, through or in connection with a semi-trailer motor vehicle owned by the first appellant and insured by the respondent and that the damages claimed by the plaintiff were in respect of that motor vehicle: s. 3(1) of the Motor Vehicles Insurance Act 1936.  The learned trial judge found that the appellants were liable to the plaintiff for substantial damages but dismissed the appellants' claim against the respondent on the ground that the appellants' liability was not in respect of the trailer.  No issue arises in this appeal between the plaintiff and the appellants.  The only questions are whether his damages were in respect of the semi-trailer motor vehicle and, if that question is decided in the affirmative, whether his injury was caused by, through or in connection with that motor vehicle.

The plaintiff was employed by the first appellant, as was the second appellant, who was also a director of the first appellant and the person in charge of the operations which resulted in the plaintiff's injuries.  The circumstances which gave rise to his claim were as follows.

On 8 September 1987, the plaintiff and the second appellant were engaged with some other employees of the first appellant in moving, by means of a mobile crane, some steel fabricated tanks from a position in an open paddock where they had been sand blasted and painted, on to the above trailer which was parked on a track in the paddock some distance away.  Overhead electric power lines ran through the paddock, passing over the top of the place where the tanks were lying, but not in the vicinity of the semi-trailer.  The plaintiff's accident occurred when the smallest of the four tanks was being lifted by the crane.  The plaintiff, with another man, was steadying the tank when the jib of the crane came into contact with the power lines.  High voltage electricity was thereby transmitted to him, causing his injuries.  The crane at the relevant time was being operated by the second appellant.

Prior to the accident, two larger tanks had been moved from their position adjacent to the smaller tank referred to above, by means of the mobile crane, onto the back of the trailer.  The procedure in each case had been that chains attached to the crane had been fixed to lugs at each end of the tank; it had been lifted to a sufficient height to enable it to be carried over the rough terrain of the paddock without any danger of its coming into contact with the ground; the crane had moved backwards some distance away from the power lines; it had then slewed to the right about 30^o and been driven forward in the direction of the trailer; during the course of this forward motion the tank had been raised to a sufficient height to enable it to be lowered on to the back of the trailer; and, when the jib and tank were over the trailer, the tank was lowered on to it.

There are inconsistent findings in his Honour's judgment as to the distance between where the tanks were lying and where the trailer was parked.  At one point his Honour said that they were 40 metres apart; at another 30 metres.  The appellant contests even the shorter of these findings, which appears to be the finding upon which his Honour relied, submitting that a video film taken shortly after the accident shows the distance to be shorter than that.  We have seen the video film but we are unable to be satisfied from it that the distance between the tanks and the trailer was less than 30 metres.  There was evidence upon which his Honour could have found that the distance was 30 metres and we are not prepared to disturb that finding.

The distance travelled by the crane in each of the previous operations in which tanks had been lifted, moved to and loaded on the trailer had been longer than that between the tanks and the trailer in a direct line because, as we have said, the crane, after it lifted the tank, reversed away from the power lines for some distance before turning apparently 30^o to the right to drive forward towards the trailer.

The substantial question in the appeal is whether, in terms of s. 3(1), the damages were in respect of the trailer.  However, even if they were, the respondent submitted before us that the injuries to the plaintiff were not caused by, through or in connection with the trailer.  His Honour had not found it necessary to consider that second question.

In order for the damages to be in respect of the trailer, there must a discernible and rational link between the basis of legal liability of the appellants for the plaintiff's injury and the trailer: Technical Products Pty Ltd v. State Government Insurance Office (Q.) (1989) 167 C.L.R. 44 at 47. That discernible and rational link, the appellants submitted, lay in the fact that the circumstances of the dimensions and configuration of the trailer and its proximity to the load and the overhead wires combined to provide the reason why the jib was raised to the height it was when it came into contact with the power lines.

It was submitted that the case was indistinguishable from Glover v. Politanski [1990] 2 Qd.R. 41. In that case the plaintiff's injury was suffered when, working at stretch, he was engaged in lifting forward a bag of cement to place it within a utility motor vehicle in a position where the height to which it had to be lifted and the distance over which the plaintiff had to lean and stretch were precisely determined by the configuration of the utility itself as well as by the dimensions of the bag. The situation was one therefore in which, in the words of Macrossan C.J. in that case, "features of the utility were actively and not merely passively contributing to the damages which the plaintiff suffered" thus providing the discernible rational link.

There were two features in that case which combined to provide the discernible and rational link between the act causing the damages and the motor vehicle.  The first was a close geographical and temporal proximity between that act and the motor vehicle.  The plaintiff, at the time he performed the act of lifting the bag up and forward, was standing beside the utility and reaching over and into the utility.  Secondly and more importantly, the configuration of the utility determined the way in which the act was being performed and thus actively contributed to the damages.

Neither of those features is present here.  While the ultimate purpose for which the tank had been lifted by the mobile crane at the time when the plaintiff was injured was the placement of the tank upon the trailer, that overall activity involved a number of steps which were separated both in space and time.  The act which gave rise to liability was raising the jib to a sufficient height that it came into contact with the power lines.  This occurred at a distance of about 30 metres from the trailer.  Moreover, although no estimate of time was given of how long any further manoeuvres would take before the tank was loaded on to the trailer, plainly it would have been some appreciable time.  Thus the proximity for which the appellant contended was, in our view, absent.

Nor was it established, as the appellant contended it was, that the reason why the crane jib was raised to a height where it could, and did, touch the overhead power lines, was to enable the tank to be lowered on to the trailer.  His Honour made no such finding.  He found only that, at the time the jib came into contact with the power lines, the tank had been raised to a height nearly sufficient to enable the tank to be dropped on to the back of the trailer.

It is not clear why, as his Honour also found, the tank had been raised higher than was necessary in order to clear the rough terrain which had to be traversed.  One possible explanation is simply that the second appellant, momentarily forgetting the presence of the power lines, carelessly lifted this tank higher than was necessary to clear the rough terrain.  Another possibility is, of course, that for which the appellants contend, that he was lifting it to a sufficient height to enable it, when the crane reached the trailer, to be lowered on to it.  However, the second appellant did not give evidence and there is no other evidence from which his Honour should have chosen either of these reasons.

In the absence of either of these elements providing a discernible and rational link between the basis of legal liability and the trailer, we think that his Honour was correct in concluding that the liability was not in respect of the motor vehicle.  In view of that conclusion, it is unnecessary to consider whether the injury was caused by, through or in connection with the motor vehicle.

The appeal is dismissed with costs.