Suncorp Insurance and Finance v Workers' Compensation Board of Queensland

[1996] QCA 59

IN THE COURT OF APPEAL	[1996] QCA 059
SUPREME COURT OF QUEENSLAND

Appeal No. 79 of 1995

Brisbane

Before Macrossan C.J. McPherson J.A. Moynihan J.

[Suncorp Insurance v. Workers' Compensation Board]

BETWEEN

TERRANCE PAUL LE GAY BRERETON

(Plaintiff)

AND

NEIL MANSELL TRANSPORT PTY. LTD.

(Defendant)

AND

SUNCORP INSURANCE AND FINANCE

(Defendant by Election) Appellant

AND

WORKERS COMPENSATION BOARD FOR QUEENSLAND

(Third Party) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 15th day of March 1996

The plaintiff was employed by the defendant Neil Mansell Transport Pty. Ltd. (the

Mansell company) to drive a prime mover and a trailer. The prime mover was owned by

the Mansell company; the trailer was owned by Neil Mansell as an individual. Both the

prime mover and the trailer were insured under the Motor Vehicles Insurance Act 1936 by policies of insurance issued by the defendant by election, which is Suncorp Insurance and

Finance.

In 1985 the plaintiff was injured in the course of his employment while securing a

load of pipes on the trailer. He had moved to the side of the trailer in order to obtain a

chain from the tool box when some of the pipes on the trailer became dislodged. One of

them fell off from the top of the load and struck the plaintiff after hitting the ground.

Liability for the resulting injury to the plaintiff was admitted. The only question before

this Court is whether Suncorp as licensed insurer under the Act of the trailer owned by Neil

Mansell is entitled to be indemnified by the third party, which is the Workers Compensation

Board, as the statutory insurer of the liability at common law of the defendant as the

employer of the plaintiff. The effect of s.8(1)(b) of the Workers Compensation Act 1916

is to require the defendant as employer to insure, and it had insured itself, with the Board

against liability for damages for an injury like that sustained by the plaintiff, subject to the

exception recognised in s.8(1)(b). The exception, briefly stated, applies to an injury against

which the defendant as employer was required by some other Act to provide insurance

against liability.

The Board contends that the exception applies because the defendant was required

under s.3(1) of the Motor Vehicles Insurance Act 1936 to insure the prime mover, which

it owned, under a compulsory motor vehicle insurance policy against all sums for which the

defendant should become legally liable by way of damages in respect of such motor

vehicle for accidental bodily injury to any person where such injury is "caused by, through

or in connection with such motor vehicle".

The question is whether this exception applied in favour of the Board. It did so as regards the prime mover because the defendant, which was also the employer, owned that motor vehicle, and so was required to insure it under s.3(1) of the Act of 1936. It did not

so apply in the case of the trailer because it was not the defendant, but Neil Mansell

individually, who owned that motor vehicle, as in 1985 a trailer was defined to be. The

question is thus reduced to whether the defendant's admitted liability for damages for the

injury to the plaintiff as its employer was a legal liability for that injury caused by, through,

or in connection with the prime mover, or only with the trailer.

The learned judge below held that the legal liability was for an injury caused by,

through, or in connection with the prime mover, and not the trailer only. He did so in

reliance on what was said about s.3(1) of the Act of 1936 in Technical Products Pty. Ltd.

v. State Government Insurance Office (Queensland) (1989) 167 C.L.R. 45. In the course

of his reasons, his Honour said:

"This requires an examination of the factual basis of the defendant's liability to the plaintiff. The plaintiff was employed to drive the prime mover with the trailer attached and to participate in the loading and unloading of the trailer. At the time at which he was injured, he was discharging his duties pursuant to that contract. Although the matter was not canvassed in detail before me, his duty as driver of the prime mover surely required that he ensure that the load on the trailer was securely fastened. It follows that as driver of the prime mover, even apart from his loading duties, he was required to stand in proximity to the trailer. The plaintiff's employment as driver of the prime mover inevitably brought him into close physical proximity to the trailer and its load. His further duty to assist in loading re-enforces this conclusion. It follows that his injury was caused in connection with the prime mover. It also follows that the defendant's liability to him was in respect of the prime mover. The connection is both discernible and rational"

In saying this, it is clear that his Honour was addressing himself to the duty of the

defendant to provide a safe system of work for the plaintiff, which is the basis on which its

liability to the plaintiff for damages arising from the injury was founded. He held that the

duty of the defendant extended to the prime mover of which the plaintiff was the driver,

which was what brought him into proximity with the load on the trailer. No one could doubt that to be so. The question is, however, whether his Honour was correct in his final

conclusion in that paragraph of his reasons, which is that it followed that the plaintiff's injury

was caused in connection with the prime mover, and therefore that the defendant's liability

to him was in connection with the prime mover. It was that connection which his Honour

said was "both discernible and rational".

The words quoted are taken from the judgments of their Honours in the Technical

Products case. If the question here turned simply on whether there was a discernible and

rational connection between the plaintiff's injury and the trailer, it might be difficult to deny

its existence. But that test is, with respect, not what is required or applied in the reasoning

of their Honours in that case. What was said by Brennan, Deane and Gaudron JJ. (167

C.L.R. 45, 47) was that there must be "some discernible and rational link between the

basis of legal liability and the particular motor vehicle". See also the reasons of Dawson

J. in his judgment in that case (167 C.L.R. 45, 52-53).

The question at issue therefore falls to be determined not according to whether or

not there is a discernible and rational link or connection between the plaintiff's injury and

the prime mover, but according to whether such a link or connection existed between the

basis of the defendant's liability for the injury and that prime mover. It is, in our respectful

opinion, not something that falls to be decided by reference simply to the indisputable

circumstance that the plaintiff was employed to drive the prime mover which towed the

trailer; that it was part of his function to load and unload the trailer; and that it was therefore

part of the duty of the defendant as employer to provide a safe system of work in respect

of those services when the plaintiff was performing them. The employer's duty extended

at least as far as that; but the basis of the defendant's liability for the particular injury

sustained by the plaintiff on this occasion was more limited than its duty stated in that form.
What was called for in this case was not an assessment of the scope or extent of

the duty owed by the defendant as employer, but the basis of its liability to the plaintiff for

the injury that ensued. The question is one involving examination of the breach of that duty

as well as the cause of the injury, both of which are elements in the employer's liability. As

such, they form part of the basis of that liability. The pipes were dislodged and the pipe fell

off the trailer and injured the plaintiff because no means was provided of confining or

containing them on the trailer while they were being loaded and before they were secured.

There were various ways in which pipes could in the course of such an operation have

been prevented from falling off the trailer. The statement of facts agreed by the parties

says (para. 22) that one way was to insert vertical bedding posts along the side of the

trailer in slots that were available on both sides to allow for the installation of such posts.

Another method would have been to construct a framework on the trailer into which the

pipes could be loaded. The parties agree that if such a system had been implemented it

is likely that it would have prevented the plaintiff from being injured as he was.

It seems to us that the basis of the defendant's legal liability for the plaintiff's injury

was the breach of its duty to the plaintiff in failing to provide some such method of

preventing the pipes from falling off in the course of the loading operation. That was what

caused the injury to the plaintiff, and it was the basis of the defendant's liability in damages

for that injury. It was something that involved only the trailer, and it was, in terms of s.3(1)

of the 1936 Act, "in respect of" that vehicle alone.

The prime mover played no part in the injury sustained by the plaintiff. Its brakes

were engaged, and it did not move or jolt the trailer or its load. There was no causal

relationship between the prime mover and the injury sustained here: Baker v. Noske [1971]

Q.W.N. 71. It is true that at the time it was coupled to the trailer; but the trailer was equipped to stand on its own when not coupled to the prime mover. The fact that the trailer

was joined to the prime mover at the time the incident took placed did not, as the law stood

in 1985, mean that they were to be viewed as one vehicle. The prime mover contributed

nothing to the plaintiff's injury or to the basis of the defendant's liability for it. In these

circumstances it was for present purposes proper to regard them as separate vehicles.

See National v. General Insurance Co. v. State Government Insurance Office

(Queensland) (1972) 46 A.L.J.R. 375, 376 col. 2B-E.

It follows that the Board is not within the ambit of the exception in its favour in s.8(1)

of the Workers Compensation Act. The injury sustained by the plaintiff, or the basis of the

defendant's liability for it, did not involve the defendant's prime mover insured by the

defendant by election. The defendant was, although not the owner of the trailer, a person

entitled under s.3(1) of the 1936 Act to be indemnified by the defendant by election in

respect of its liability to the plaintiff; but, because it was not the owner of the trailer, it was

not required by that Act to keep itself indemnified by a contract of insurance under that Act

in respect of the trailer. For that reason the defendant was not within the terms of the

exception created in s.8(1) of the Workers Compensation Act 1916.

The conclusions reached so far mean that attention should now be given to a further

question. This question was, with respect, somewhat obscured as a result of the approach

which the primary judge adopted and also by the form of the argument advanced for the

respondent in resisting the appeal. His Honour's conclusion seems to have been wholly

based upon the premise that the defendant's liability was one "in respect of" the prime

mover. His order was then made upon the basis that the scope of the defendant's policy

with the third party was limited by the section 8(1)(b) exclusion so that the defendant by election was thus entitled neither to indemnity nor contribution from the third party. The

respondent's argument on appeal was similarly abridged and proceeded along the same

lines. However, the questions raised in the third party proceedings were wider and his

Honour had been asked to determine them on the basis of an agreed statement of facts

which, when examined, allows a resolution of those issues. The appellant's argument

before us continued to press for an appropriate adjudication.

The claim by the defendant by election in the third party proceedings might, from

one point of view, be thought to be unexpectedly extensive, because the owner of the trailer

had not been joined as a defendant in the action. Of course, no basis appears on which

that could have been done. The plaintiff as employee had brought an action based upon

a failure to provide a safe system of work and he brought it against his sole employer who

happened to be the owner of the prime mover but not the trailer. Notwithstanding this, the

issues raised in the third party proceedings obviously lent themselves to convenient

determination in association with the proceedings brought by the plaintiff and the primary

judge had been asked to determine them. We now turn to those further issues.

The decision which we have arrived at, namely that the plaintiff's admitted claim

does not arise out of a liability of his employer "in respect of" the prime mover, means that

we are not concerned to distribute insurer's responsibilities as between two separately

insured vehicles in the fashion indicated in National and General Insurance Co. v. State

Government Insurance Office (Queensland) supra (see also Bean v. Sinnett Appeal No.

122 of 1987, Full Court, Judgment 11/12/87, {unreported}). In the present case, of course,

the same insurer had issued the policies in respect of both vehicles.

We are left with the fact that the defendant by election was an insurer in an unlimited amount of the liability of the owner of the trailer under the usual statutory form of policy. The third party was the insurer under a different statutory form of policy, again in an unlimited

amount, of the liability of the defendant employer to pay damages in respect of the

employee's injury. As to the first potential head of liability, that is, of the owner of the trailer

and through him of his insurer, there can be no real debate. When the circumstances of the

accident and injury are considered, it can, without hesitation, be concluded that the

defendant (the Mansell company) was also covered by the statutory motor vehicle policy

applicable to that trailer since that policy indemnified not only the owner but also "all other

persons" against liability "in respect of" the trailer for accidental bodily injury "caused by,

through, or in connection with" the trailer: see s.3(1) of the Motor Vehicle Insurance Act

in the form in which it then stood. The arguments which were put on behalf of the

respondent suggesting that the present case involved one of liability in damages in respect

of the prime mover, which arguments we have rejected, are of a kind which are

unanswerable when they are transposed to the trailer. They necessarily involve the

conclusion that we are concerned here with a liability in respect of the trailer and an injury

caused in connection with it: see cases such as Novak v. Meggitt Ltd [1990] 2 Qd.R 170,

Glover v. Politanski [1990] 2 Qd.R 41 and Early v. Kilcoy Pastoral Co Pty Ltd [1970]

Qd.R 99.

The defendant employer's workers' compensation policy was not affected by a

relevant exclusion. The defendant was not the owner of the trailer and so was under no

statutory obligation flowing from s.8 (1)(b) to insure against liability for injuries in respect

of it. Yet the defendant had the benefit of the indemnity under the motor vehicle policy in

favour of Neil Mansell the individual which extended beyond him as the owner to include "all

other persons". The defendant, as the plaintiff's employer, is thus entitled to a full indemnity under each of the two policies which, in the circumstances, apply equally. There is no

reason why an order for an equal contribution should not be made: Albion Insurance Co.

Ltd v. Government Insurance Office of New South Wales (1969) 121 C.L.R. 342. This is

the form of order sought in the notice of appeal.

The appeal should be allowed with costs and the judgment below set aside; there

should be judgment in the third party proceedings for the defendant by election against the

third party for one-half of the plaintiff's damages and his costs of the action and for the

costs of the defendant by election of and incidental to the third party proceedings.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 79 of 1995

Brisbane

[Suncorp Insurance v. Workers' Compensation Board]

BETWEEN

TERRANCE PAUL LE GAY BRERETON
(Plaintiff)

AND

NEIL MANSELL TRANSPORT PTY. LTD.

(Defendant)

AND

SUNCORP INSURANCE AND FINANCE

(Defendant by Election) Appellant

AND

WORKERS COMPENSATION BOARD FOR QUEENSLAND

(Third Party) Respondent

Macrossan C.J. McPherson J.A. Moynihan J.

Judgment delivered 15/03/96

Reasons for judgment by the Court

APPEAL ALLOWED WITH COSTS AND THE JUDGMENT BELOW SET ASIDE; THERE SHOULD BE JUDGMENT IN THE THIRD PARTY PROCEEDINGS FOR THE DEFENDANT BY ELECTION AGAINST THE THIRD PARTY FOR ONE-HALF OF THE PLAINTIFF'S DAMAGES AND HIS COSTS OF THE ACTION AND FOR THE COSTS OF THE DEFENDANT BY ELECTION OF AND INCIDENTAL TO THE THIRD PARTY PROCEEDINGS.

CATCHWORDS	PERSONAL INJURIES - Whether licensed insurer is entitled to be indemnified by Workers' Compensation Board as the statutory insurer of liability at common law of the defendant as employer of the plaintiff - Whether there was 'some discernible and rational link between the basis of legal liability and the particular motor vehicle' - Technical Products Pty. Ltd. v. State Government Insurance Office (Qld.) (1989) 167 C.L.R. 45.
Counsel:	S.C. Williams Q.C., with him P.E. Sorenson, for the appellant
I.D.F. Callinan Q.C., with him M. Martin, for the respondent
Solicitors:	Bernays & Bernays for the appellant
Hede & Byrne for the respondent
Hearing Date:	3 August 1995