Technical Products Pty Ltd v State Government Insurance Office

[1988] HCATrans 288

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B35 of 1988

B e t w e e n -

TECHNICAL PRODUCTS PTY LTD

Applicant

and

STATE GOVERNMENT "INSURANCE

OFFICE

Respondent

Application for special leave

ta appeal

WILSON J

DEANE J

Technical

DAWSON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 25 NOVEMBER 1988, AT 10. 15 AM

Copyright in the High Court of Australia

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MR J.A. GRIFFIN, QC:  May it please the Court, I appear

with my learned friend, MR P.C.P. MUNRO, for the applicant. (instructed by Bradley & Co)

MR P.R. DOUGLAS, QC:  May it please the Court, I appear

with my learned friend, MR D.A. REID, for the

respondent. (instructed by Gabriel Ruddy &

Garrett)

WILSON J:	Yes, Mr Griffin.
MR GRIFFIN:	The question at issue in the application

is the proper interpretation of section 3(1)

of the MOTOR VEHICLES INSURANCE ACT, 1936.

We have provided Your Honours with copies of

the Act.

WILSON J:	Yes, we have it.
MR GRIFFIN:	May we take Your Honours to the section.

Leaving out words which are irrelevant for present

purposes, the section requires the owner of

a motor vehicle to have a policy of insurance·

which·indemnifies:

himself and all other persons -

who -

become legally liable by way of damages

in respect of such motor vehicle for accidental

bodily injury ..... where such injury is

caused by, through, or in connection with

such motor vehicle.

The learned trial judge held that such indemnity
was attracted by the circumstances of the case.

Owing, in our submission, to a misinterpretation

of the section the Full Court overturned the

decision of the trial judge. The plaintiff was injured when he fell

from a pallet whilst he was loading bags of
salt into a transport vehicle. The pallet had

been raised by a frirklift seven feet above the

ground so as to place it next to the container
on the tray of the vehicle in order to enable

the bags to be manually loaded from the pallet

into the container. The plaintiff and another

workman stood on bags on top of the pallet and

they passed bags to another employee who was

kneeling on the floor of the container.

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MR GRIFFIN (continuing) : 'lbe plaintiff fell during this loading procedure.

The trial judge held that the defendant employer was

liable for the plaintiff's injuries on the ground that

it was unreasonable to have the men loading from this

elevated position in the circumstances of the small

platform, the slipperiness of the bags on which they

stood and the lack of edge protection. Although what

the plaint:J.iff was actually doing innnediately prior to
his fall did not appear, the trial judge made findings

to the effect that he was engaged in loading at the

time of his fall.	Those findings appear predominantly
at page 17.	He held that:·

he was cer.tainly in the general course of

that process of loading.

That is at lines 4 to 5:

which ..... was actively continuing at the

time of the plaintiff's fall.

That is at line 31 and:

his whole activity was ancillary to the

loading procedure.

That is at line 12. At lines 32 to 36 he said:

there was no departure of any significance

whatever from that process which would· suggest

that some discrimination should be made between

what he was doing and the general activity itself.

He proceeded to hold at page 20, lines 19 to 21 that:

what is involved is the direct loading of

goods into a transport vehicle and the

negligence is specifically to do with that

activity as such.

The respondents had admitted that the plaintiff's inJury

was caused by, through or in connection with the vehicle	and the trial judge held that the defendant's liability
was in respect of the vehicle. The basis upon which
the Full Court overturned this decision was that the
words "in respect of" in section 3(1) have "a significant
limiting effect" :on the op·eration of the section.
That appears at page 29, line 10. The defendant's
liability was not in respect of the vehicle and at page 21,
lines 41 to 50, the Full Court said the liability was:

(Continued on page 4)

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MR GRIFFIN, QC (continuing):

"in respect of the unsafe state of the load

on the forklift seven feet above ground level

where the plaintiff was required to work in

close proximity to another employee similarly
engaged and without any protective sides or

other restraints.

Cases such as GOVERNMENT INSURANCE OFFICE OF NSW V GREEN AND LLOYD, (1965) 114 CLR 437, in the context

of a statutory formulation slightly different from

section 3(1) deal with the relationship of the

injury to the vehicle as opposed to the relationship

between the liability and the vehicle. They do,

however, adopt a wide interpretation of the words

"the use of the vehicle" which, in our submission,

is a narrower concept than the concept of "in respect

of the vehicle". The question, however, is whether

under the Queensland legislation the Full Court

was correct in departing from the general approach

of those cases and in requiring a more proximate

relationship between the liability and the vehicle

than between the injury and the vehicle in circumstances

in which the only basis for such limitation is to be found in the broad wording "liability in respect

of the vehicle".

In the GREEN AND LLOYD case itself, workmen were trying to get a hoist on to a registered

table-top truck by means of planks. During the

operation the hoist slid off the planks injuring

one of the workmen. The question was whether the

injury was caused by or arose out of the use of

the motor vehicle under the relevant New South Wales

legislation. That question was answered in the

affirmative. Chief Justice Barwick said at 442:

the act of actually placing the load on the

part of the vehicle designed to bear it during

transport and for the purpose of its

transportation, must, in my opinion, be a

use of the motor vehicle in the sense relevant

to the Act and to the terms of the policy.

And Justice Windeyer said, at 447:

if a person suffers bodily injury when engaged

upon some task connected with loading, the
question whether his injury was caused by

or arose out of the use of the vehicle depends

upon whether it was a consequence direct and

not remote, of the operation of loading.

In STATE GOVERNMENT INSURANCE QUEENSLAND V CRITTENDEN,

(1966) 117 CLR 412, this Court considered the section

in the context of the question whether the section

covered a claim by a husband in respect of loss

of consortium, his wife having been injured in the accident.

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MR GRIFFIN (continuing):  The judgments, particularly those of

Justice Taylo.r and Justice Menzies, consider the

words "in respect of" in ':he section and an

examiniation of those judgments gives no support for

any narrowing of the meaning that would otherwise be

indicated by the expression "in respect of". Quote
the contrary, Justice Taylor, at 416, quoted the

statement by Chief Justice Mann to the effect that:

''The words, 'in respect or, · ..... have the widest

possible meaning of any expression intended to convey some connexion of relation between the two subject-matters to which the words

refer."

At 416 he noted that the Act was expressed to be an

Act to require the owners of motor vehicles to insure against their liability to pay compensation on

account of injuries to persons caused:

by, through or in connexion with such motor

vehicles.

Justice Menzies said at 421:

I do not think the section, which is intended

to meet a well-recognized social and economic

problem, should be construed so narrowly as to

reduce it to but a partial solution of that

problem.

The examination- of the words "in respect of," in

CRITTENDEN's case, was in the context of determining

the meaning of the wider phrase, "liable in respect
of the motor for accidental bodily injury," but
there is no reason why the breadth of the phrase,
"in respect of," should vary according to whether

the phrase is being viewed as modifying the words "motor vehicle," or the words, "motor vehicle for

accide,,-:.:al bodily injury." The words •~in respect

of" were considered by this Court in other

litigation relating to the accident with which we

are concerned. in this case, that is WORKERS'

COMPENSATION BOARD OF QUEENSLAND V TECHNICAL PRODUCTS

PTY LTD, an unreported decision of this Court handed

down on 27 September 1988.

In that case, the words were being considered in

their context in a section of the QUEENSLAND WORKERS'

COMPENSATION ACT. Justices Deane, Dawson and Toohey

said at page 13 that:

The words, "in respect of" have a wide meaning.

It was said that:

"The phrase gathers meaning from the context in

which it appears.

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DAWSON J: What do you say the meaning is here, Mr Griffin?

MR GRIFFIN:  We say that the meaning is a broad meaning, such that

there need not be an actual physical involvement

of the vehicle in the accident.

(Continued on page 7 )

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IYAWSON J:  It could mean in connection with, could not it?

MR GRIFFIN:  Or in connection with, yes. It is at least as

broad as that. In CRITTENDEN's case, in the

judgments of Justice Taylor and Justice Menzies to

which I have referred, the object of the Act was

seen to be a broad one. This is supported by the

broad terminology used later in the section in so

far as it states that it covers all injuries which

are caused by, through, or in connection with the

motor vehicle. The object of the Act therefore

supports the according of a wide meaning to the words

"in respect of", as opposed to a utilization of the

words to bring about a significant limiting effect.

In STATE GOVERNMENT INSURANCE OFFICE V STEVEN

BROTHERS, (1984) 154 CLR 552 this Court considered

an accident which occurred whilst an insured compressor

was being lifted from the back of a truck by means of

a crane. During this process the tow-bar of the
compressor became caught on the back of the truck

until increased pressure resulted in its sudden

release injuring the worker. The Court held that

the accident arose out of the use of the compressor

within the meaning of that phrase in the relevant

South Australian legislation. Your Honour

Justice Dawson said at page 559 that the consideration

of whether the injuries arose out of the use of
the vehicle:

does not require the direct or proximate relationship between the vehicle and the

injuries which would be necessary to conclude

that the injuries were caused by the vehicle.

Your Honour referred to GREEN AND LLOYD. It is our

submission that no more proximate relationship is

required between the liability and the vehicle under

the Queensland legislation. The other decision

of this Court to which we wish to refer is FIRE AND

ALL RISKS INSURANCE COMPANY V TURNER, (1976)

50 ALJR 767.	That case was a Queensland case
which involved the section with which we are here

concerned.

(Continued on page 8)

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MR GRIFFIN (continuing): There was a kangaroo shooter,

whilst alighting from a vehicle, negligently

allowed his rifle to discharge. The bullet

shattered the windscreen and a passenger in

the vehicle was injured by the glass. The

Court held that the plaintiff's injuries were

caused by, through or in connection with the

vehicle. The question whether the shooter's

liability could be characterized as being in

respect of the motor vehicle was not even

argued. The reason for this, we submit, is

that in the 70s it was assumed that if the

injury was by, through or in connection with

the vehicle, then it followed that the liability

would be in respect of the vehicle. It is only

in more recent years that the Full Court of

Queensland has turned its attention to the

wor,ds "in respect of" and utilized that phrase

to cut down the operation of the section.

Although the words "in respect of" were not

argued in TURNER, the point we make is that if it

is correct that they should be used to cut down
the operation of the section in the manner suggested

by the Full Court in the present case, it is strange

that this should not have merited some comment by

the Court. If it is correct to accord the words

a significant limiting effect, liability in

TURNER would have been in respect of the handling

of the rifle, not in respect of the vehicle.

One error, we submit, that the form of logic

adopted by the Full Court entails is that it assumes

that if liability can be characterized as being in

respect of something other than the motor vehicle,

for example, liability with respect to the system
of work or liability in respect of the elevated
platform, it cannot also fairly be said to answer

the description "liability in respect of the vehicle".

DEANE J: Is not your argument, really, that 'in respect of"

does no more than look forward and means 'relevantly

related to" - - -

MR GRIFFIN: Yes, precisely.

DEANE J:	- - - and to find out what "relevantly related to"
means, you go to the end, that is, where such injury is caused by,, through - - -
MR GRIFFIN:	Yes.

DEANE J: Well, on a leave application, the question is pretty

clear, is it not? I mean, we are not going to decide

it here even if you get leave.

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MR GRIFFIN: Yes. Well, that really does encapsulate

our submission.

WILSON J: Perhaps we should call on Mr Douglas.

MR GRIFFIN: If the Court pleases.

MR DOUGLAS:  If the Court pleases, the trial judge and

the Full Court were required to consider

whether in the circumstances firstly,

the plaintiff's injury was caused by, through,

or in connection with an insured motor vehicle;

and secondly,that the defender's liability
was by way of damages in respect of an insured

- they are our words - motor vehicle for

accidental bodily injury. That involved the

consideration of section 3(1) as it then

was. The section has been amended recently

with the effect that any claim of the nature brought

in this case will fall upon the workers compensation

insurer,whomM:r Griffin represents, and not upon

the licensed insurer of the motor vehicle as

and from 22 September 1988. So from this time

forward this sort of case is not ever going to

appear again, we would say, by the legislation.

WILSON J:  The amendment, in effect, entrenches the

decision of the Full Court?

MR DOUGLAS: It does, Your Honour, yes.

DEANE· J: And are there other cases awaiting this,

Mr Douglas, or is this sort of the end of the

line?

MR DOUGLAS:  Your Honour, I am aware of one other case

which is on appeal to the Full Court at the

moment, by the name of POLLACK V MAYBAIRN.

DEANE J: And that would again be a case between

insurers, would it?

MR DOUGLAS:  Yes, it would be. They are all cases between

insurers. They are all cases where a plaintiff

must succeed against one or the other of the

insurers and they are inevitably between the

Workers' Compensation Board on the one hand,

and the two insurers in this State, who are

Fire & All Risks and the government insurance

office called Suncorp.

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WILSON J: It would be impossible to know how many cases, conceivably, could arise on accidents occurring before 22 September?

MR DOUGLAS:  Yes, it would be impossible to know.

Your Honours, the relevant parts of the amending

Act-and you have copies of that, I understand,

with you;	they were faxed down yesterday, I
th ink ,	rod ear lier was faxed down a copy of

the bill but the bill is identical to the Act -

are section 6(e)(i) which omits the word "trailer"

from the definition of "motor vehicle" in

section 2 of the original Act. Section 6(f),

which provides that:

Accidental bodily injury ..... caused on

or after 22 September 1988 is not injury

to which any provision of this Act applies

unless it is a consequence of -

the four matters enumerated there. And

section 7(b)(iii), which is on page 4 of the amending

Act, is the relevant one particularly so far

as we are concerned with this application today.

It is submitted, Your Honours, that in the circumstances this is not an appropriate

case for the granting of special leave because

the statutory amendments mean that in relation

to accidents which occur from and after
22 September 1988, the Compensation Board will

be liable to pay damages and no liability could

attach to the compulsory motor vehicle insurer.

Therefore, the questions of public importance raised in paragraph ll(a) and ll(b) of Mr Bradley's affidavit in support of the application have

no application in view of the statutory change.

We say, also, Your Honours, that the outcome

of each case really depends upon the particular

facts of it. No general question of law relating

to whether the indemnity provided by the statutory

policy of insurance provided by section 3 extends
to cover liability which arises in the course

of the loading of a registered motor vehicle

can be satisfactorily enunciated. In any case,

it would only apply to cases involving accidents

prior to 22 September.

Your Honours, we also say that

special leave should not be granted because
the decision is not attended with sufficient

doubt to justify the granting of special leave.

Your Honours, we would point out the approach

of the Full Court in the judgment of

Mr Justice Connolly, at page 26 of the record.

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I should, perhaps, start at the bottom of page 25, where His Honour says:

If I may paraphrase the language of

the High Court in STATE GOVERNMENT INSURANCE

COMMISSION V STEVEN BROTHERS PTY LTD,

(1984) 154 CLR 552, at first sight, it

would appear to be a simple task to decide

whether in the circumstances the respondent's

liability to the plaintiff was a liability

in respect of the trailer. Although s.3(1) of the MOTOR VEHICLES INSURANCE ACT differs

from the legislation there under consideration

it is right to say that here, as in STEVEN

BROTHERS, earlier decisions on this point,

and they are becoming numerous, illustrate

the difficulty that can attend the application
of these words to particular cases and

"the futility of striving to enunciate

a general proposition, the application

of which will provide a ready solution
to every case."

And then, finally, in reference in that judgment, at the bottom of page 26, the first new paragraph

on the page:

If the liability of the respondent in

this case is to be described as being

in respect of the trailer, there must,

in my opinion, be more than the mere presence of the trailer at the scene. As McPherson J.

observed in TONGA V JOHN HOLLAND (CONSTRUCTION)

PTY LTD & ORS ..... STEVEN V NUDD ..... and BOATH

V CENTRAL QUEENSLAND MEAT EXPORT CO PTY LTD .... :

may be taken as establishing that it is

not sufficient, in order to satisfy the

requirement that the person entitled to

the benefit of the cover be legally liable

... in respect of such motor vehicle,

that there be no more than a connexion

or relation in time or sequence between

the motor vehicle and events which in

law give rise to the liability.

(Continued on page 12)

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WILSON J:  But there was more than the mere presence of the

trailer at the scene, surely, Mr Douglas?

MR DOUGLAS:  Not on the facts, Your Honour, as they were found,

with respect. The trailer was - - -

WILSON J: The entire operation was focused on loading into

the container that was sitting on the trailer?

MR DOUGLAS: Yes, that is so, but that is all it was there for.

It could have been anything, it could have been a wharf,

it could have been a deck~-

DEANE J: But what was more was what the statute says and that

is the actual injury was caused by, through or in

connection with the motor vehicle?

MR DOUGLAS:  Your Honours, I suppose it comes down to what the

approach of the Full Court is in Queensland - - -

WILSON J: That last point was in fact a concession, it was

connnon ground at the hearing.

MR DOUGLAS: That is so, Your Honour, yes, but as my learned

friend pointed out, there are two matters. First, to

decide whether the injury arose by, through or in

connection with the motor vehicle, then whether there

was liability in respect of that motor vehicle. There

are two questions, the Full Court says, to be decided.

The first was conceded, the second was decided in our favour.

WILSON J: Yes.

MR DOUGLAS:  Now the words "in respect of", the view adopted

by Mr Justice Connolly was really an adoption of what was said by Mr Justice Campbell, the Chief Justice as

he then was in BOATH V THE CENTRAL QUEENSLAND MEAT

EXPORT COMPANY PROPRIETARY LIMITED·, (1986) 1 Qd R 139,

at page 143 where he said:

It was submitted by counsel for

C.Q.M.E. that the words "in respect of" are words of the widest import ..... but the meaning

of such phrase "depends very much on the context

in which it is found" -

referring to REES' case in this Court:

If the construction of section 3(1) put

forward by Mr Fitzgerald Q.C., for C.Q.M.E.,

is correct then the words "in respect of such

motor vehicle" are redundant and have no
meaning or effect by way of limitation. Leaving

those words to one side, subsection (1) would

then,: in effect read:  "The owner of any

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motor vehicle shall ..... indemnify himself

and all other persons ..... by a contract of

insurance ..... against all sums for which he .....

or any such other person ..... shall become

legally liable by way of damages ..... for

accidental bodily injury ..... to any person .....

where such injury is caused by, through, or

in connexion with such motor vehicle". However,

meaning must be attributed to the words "in

respect of such motor vehicle" and the plain

meaning of the words leads them to having a

significant limiting effect on the otherwise

extreme width or ambit of the subsection.

That is the argument which appealed to the court in

BOATH's case and in this case it was adopted - - -

DAWSON J:	Why should the words have a limiting effect?
MR DOUGLAS:	Your Honour, we say that they must have some

meaning in the section, as His Honour there pointed out.

WILSON J:  But they are descriptive, Mr Douglas, are not they?

Is not the effect of it saying that the owner becomes liable ih respect of the motor vehicle, of which he is

connection with that vehicle? the owner, whenever injury is caused by, through or in

(Continued on page 14)

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MR DOUGLAS:	We say not, Your Honour, and the Full Court on

two occasions has also said that is not the case,

in BOATH's case I have just referred to, and the

present case.	We say they all depend upon their
particular facts.

WILSON J:  I am merely putting the opposing contention.

MR DOUGLAS:  Yes, I understand that, Your Honour. Your Honour,

they are our submissions. We submit that the Full Court

was correct and for the reasons enunciated by

His Honour Justice Connolly, we plainly adopted the

previous decision of the Full Court in BOATH.

WILSON J:	Yes. Thank you, Mr Douglas. Yes, Mr Griffin.
MR GRIFFIN:	Your Honours, might we be heard briefly on the

amendment.	The amendment only applies to accidents
occurring after 22 September 1988.	It is not correct

to say that all the cases are between insurers.

One only has to look at the present case and to

imagine a private loading, that is to say a loading

of the vehicle at the request of the owner, other

than in the employment situation. This decision would

impact upon that situation and probably prevent the

plaintiff from recovering pursuant to the indemnity

granted by the section and the cover.

There will be many other situations other than

the loading situation in which there is a similar

sort of proximate relationship with the vehicle to

the relationship that we have here where there is no

second insurer. So the effect of this decision

is to narrow the ambit of the section generally and

will operate against plaintiffs who seek to obtain

the benefit of the indemnity.

DEANE J:  Mr Griffin, does the Act impose liability as well as

deal with insurance?

MR GRIFFIN:  In what sense, Your Honour?

DEANE J:  In the sense does it confer a right of action on the

injured plaintiff,as distinct from deal with the right

of indemnity of the - - -

MR GRIFFIN:  No, it does not.

DEANE J:  How would it then, if it does not confer

rights of action, operate?

MR GRIFFIN:  The section describes the extent of the cover.

The insurance policy matches the terms of the

section.

DEANE J:  What, you are pointing to the case where the

defendant is liable in a loading case such as this,

even though he was not the employer?

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l1R. GRIFFIN:	Yes.	That is one of the cases to which

we point, and - - -

DEANE J:	It would be the only one, would not it?
l1R. GRIFFIN:	Well, there are other situations in which the

vehicle is alleged to be involved other than the

driving situation.

DEANE J:  Well, the two possible cases would be one from the

plaintiff's point of view where the defendant would

be incapable of meeting the verdict in the absence

of insurance.

l1R. GRIFFIN: Yes.

DEANE J:  The second is where the defendant is not the employer

covered by workers compensation and would otherwise

be uninsured.

l1R. GRIFFIN:  Yes. In both of those situations plaintiffs

will be disadvantaged by this decision.	Those
are our submissions, Your Honour.

WILSON J:  Special leave will be granted in this case.

AT 10.42 AM THE 'MATTER WAS ADJOURNED SINE DIE

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