Technical Products Pty Ltd v State Government Inusurance Office

[1989] HCATrans 6

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B54 of 1988

Between -

TECHNICAL PRODUCTS PTY LTD

Appellant

and

STATE GOVERNMENT INSURANCE

OFFICE

Respondent

BRENNAN J
DEANE J

DAWSON J

TITolIBY ·j -

Technical (2)

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 7 FEBRUARY 1989, AT 10.20 AM

Copyright in the High Court of Australia

C2T2/l/SDL 1 7/2/89

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

my learned friend, MR P.C.P. MUNRO, for the appellant.

(instructed by Bradley & Co)

MR R.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)

BRENNAN J:	Yes, Mr Griffin?
MR GRIFFIN:	Your Honours, I hand up a synopsis of the

appellant's submissions. There are seven copies.

BRENNAN J:  Thank you.

MR GRIFFIN: Your Honours, the question in issue in this

appeal is the proper interpretation of section 3(1)

of the MOTOR VEHICLES INSURANCE ACT 1936-1979 of

the State of Queensland. We provide Your Honours

with copies of the Act and regulations and the legislation with which we provide Your Honours is the legislation as it stood at the relevant time. There have been some subsequent amendments.

The relevant section appears at page 6, and it reads, in so far as is relevant:

Subject to this Act, the owner of any motor

vehicle shall at all times during the

registration, or as the case may be, any

renewal of the registration of such motor

vehicle indemnify himself and all other

persons and keep himself and all other persons
indemnified by a contract•of insurance with
the State Government Insurance Office (Queensland)
or with some licensed insurer against all

sums for which he or his estate or any such

other person or his estate shall become

legally liable by way of damages in respect

of such motor vehicle for accidental bodily injury (fatal or non-fatal) to any person

(including, in respect of such injury caused

by any such other person, the owner himself)

in any State or Territory of the Commonwealth
of Australia where such injury is caused

by, through, or in connection with such
motor vehicle.

(Continued on page 3)

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Technical(2)

MR GRIFFIN (continuing): Then leaving out the words which

have no relevance for present purposes, what

the section requires is that:

the owner of any motor vehicle -

have a policy of insurance which indemnifies him

and -

all other persons ..... 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 this indemnity
was attracted in the circumstances of the case
and owing, in our submission, to a misinterpretation

of the section the Full Court overturned the

decision of the trial judge.	The facts of the
case are not in dispute.	They are set out in

the judgment of the trial judge at pages 108 to 111

of the appeal book, but I think they may be

summarized as follows. The plaintiff was injured

when he fell from a working platform on a fork-lift

whilst he was loading bags of salt into a container

which was on the tray of the transport vehicle.

These bags of salt were being loaded into the

container for purposes of subsequent shipment.

A pallet had been raised by the fork-lift

several feet, about seven feet above the ground,

so as to place it next to the container which

was on the tray of the vehicle in order to enable

the bags to be manually loaded from the position

that they were in on the pallet into the container

on the back of the vehicle. The plaintiff and

another workman stood on bags which were, in fact,

on top of the pallet and they passed bags to

another employee who was kneeling on bags which

hadfalready been loaded into the container.

--¥ou~ Honours have some photographs. They are the

photographs in exhibits 28 and 29, to which we

would refer.	They depict the situation quite
clearly.	They show the general process that

was taking place and Your Honours will see in the two

photographs which constitute exhibit 28 the

fork-lift, the pallet, bags of salt and the

procedure which was being followed to place those
bags of salt into the container which was on

the relevant insured vehicle.

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Technical(2)

MR GRIFFIN (continuing): Exhibit 29 is a photograph of the

trailer on which the container was placed.	The
plaintiff fell during this loading procedure.	The

trial judge held that the appellant, which is the

employer of the plaintiff who was the defendant in

the action - the trial judge held that the defendant

employer was liable for the plaintiff's fall and

his consequential 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.

The vehicle on which the container was placed

was, but the fork-lift was not,a register and insured

motor vehicle and so it was the vehicle on which

the container was placed that was the insured vehicle

pursuant to section 3(1) of the MOTOR VEHICLES

INSURANCE ACT and what the appellant claimed was

that it was entitled to be indemnified under the

policy.

The parties agreed as to the consequential orders which would follow in the event of that right

being established. The trial judge made the

requested declaration - that appears at page 128

of the appeal book - and the Full Court upheld the

present respondent's appeal against the making of

that order. We submit that the trial judge's order
ought to be restored. Might I say, at this point,
that because the appellant has in fact paid the amount

of the judgment, we would ask this Court, in the event of the appeal being successful, to reserve to the appellant liberty to apply with respect to

any question that arises in relation to interest.

I should say, at this point, that the whole

of the loading operation in question was under

the - - -

BRENNAN J: Wnat is the proposition for which you would wish

ti contend in relation to interest? ls this something

-=~ich you would wish to have embodied in the Court's

order?

(Continuing on page 5)

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Technical(2)

MR GRIFFIN:	I think it would be sufficient if we had liberty to apply, Your Honour, because I am fairly sure that the
matter can be resolved amicably between the parties.
BRENNAN J:	Very well.
MR GRIFFIN:	The whole of the loading operation was under the

control of the appellant and that appears from the

evidence of a Mr Brassington, particularly at page 103.

At about line 45 he was askedi

Did your company -

and he was from a company called Brisbane Carrying

Company which owned the trailer -

Did your company as a subcontractor to TNT use

those Short Skell trailers for the purpose of

the transport of containers from Technical Products?

He said:

Yes, we did.

And was it the system that your company would

move in one of those Short Skell trailers with

that container attached to it and then leave the
container there or leave the trailer with the
the container in situ whilst it was loaded by
the employees of Technical Products and then

returned subsequently to remove the trailer?

He said:

Yes, when it was packed, they would advise us and and we would go down and pick up the packed

container and trailer and return it to the wharf
or to the railyard, depending on where it was

intended.

Al~hough what the plaintiff was doing immediately prior

-pcrssession of a bag or actually placing it on the trailer	to this fall, in the sense of whether he was actually in
or actually picking it up from the fork-lift did not
appear because he he had amnesia in relation to the
accident. The trial judge made findings to the effect
that he was engaged in loading at the time of his fall.
Those findings appear at page 124 and His Honour held
that the plaintiff was certainly in the general course
of the process of loading which was actively continuing at the time of the fall.

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Technical(2)

MR GRIFFIN (continuing): ]f I can take Your Honours to lines 2 to 38

of page 124. His Honour in dealing with an argument

based on the proposition that it had not actually been

shown that the plaintiff was placing a bag on the truck

at the time that he fell, he said this:

However, this line is unsuccessful because at the

time of his fall he was certainly in the general

course of that process of loading; and even if

he had paused for a moment in the process in order to regain his breath or for some other purpose, it

must still be said that he was engaged in the loading

of the vehicle at the time for his whole activity

was ancillary to the loading procedure. It is

not appropriate to divide a continuous process of

that nature into a multitude of disconnected

component acts and to look at each individually.

Rather, for the purpose of this exercise, it is necessary to approach the matter conceptually and with a broad recognition of the process which was

being undertaken.

BRENNAN J:  There is no contest about this aspect of the matter,

is there?

MR GRIFFIN:  I think there probably is, Your Honour, because

really the Full Court said in effect that you have to

dissociate what was happening on the fork~ift with the

loading procedure. In other words, the Full Court said

in effect that the liability was with respect to the

fork~Iift and not with respect to the vehicle.

TOOHEY J: 

Mr Griffin, when you use the expression that you did,

"loading on the truck", you mean loading into the
container that was on the truck?

MR GRIFFIN: 

Loading into the container which was on the truck, yes, Your Honour.

BRENNAN J: 

But this part of His Honour's judgment is related

to the submission at the bottom of 123, that the

particular act which was being done at the time that

-the:?plaintiff suffered his injury was not an act in

the, course of loading the vehicle. His Honour says it

was -

an act in the course of loading the vehicle - and the argument in the Full Court is whether or not

an act done in the course of loading the vehicle from

the pallet is an act done in respect of - or answers

the description of 1'in respect o~! does it not?

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Technical(2)

MR GRIFFIN:  Yes, that is right. I imagine that it

is not in contest that	- or that these fact
findings by His Honour	are not in issue, yes,
in that sense.

His Honour proceeded to hold that it was a case of the direct loading of goods into

a transport vehicle and that the negligence

was 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. That

admission appears at page 135, lines 21 to 29

where His Honour Mr Justice Connolly said:

The only allegation which was in issue

at the trial or before this Court on

appeal between the respondent and the

appellant third party was whether the

respondent's liability in damage to the

plaintiff was a liability "in respect of"

the skeletal trailer.

Of course, the trial judge held that the liability was in respect of the vehicle and that the

indemnity was attracted. His reasoning appears

in particular at pages 125, line 35 to 126, line 32,

and we will not read that passage to the Court.

The basis upon which the Full Court overturned

the decision was that the words "in respect of"

which appear in the eighth line of section 3(1)

have a significant limiting effect on the operation

of the section. That appears at page 139 of the

appeal book. So approached, the defendant's

liability was not in respect of the vehicle; it

was rather - and I take this from line 42 of page 139:

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.

(Continued on page 8)

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Technical(2)

MR GRIFFIN (continuing):  The judgment was the judgment of

Mr Justice Connolly and Chief Justice Andrews
and Mr Justice Thomas concurred. Earlier in that

page it referred to the fact that the Full Court

said that the words "in respect of" have "a

significant limiting effect on the otherwise

extreme width of section 3(1)." Your Honours,

cases such as GOVERNMENT INSURANCE OFFICE

OF NSW V R.J. GREEN & LLOYD PTY LTD,

(1965) 114 CLR 437, in the context of a statutory

formulation,admittedly 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 ofu the vehicle which, in our

submission, is a narrower concept than "in respect of".

But the question, however, is whether under the

Queensland legislation the Full Court was correct

in departing from the general approach of cases

such as GREEN & LLOYD and in requiring, in effect,
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 such motor vehicle".

DAWSON J:  Mr Griffin, before we get to that, can I just

raise this question with you? Damages are not
ever in respect of the motor vehicle, in this

context,they are in respect of injuries.

MR GRIFFIN:	Yes, that is so, Your Honour.
DAWSON J:	So it is really a phrase that is inappropriately

used. Then you look to see what sort of injuries

and you see they are injuries:

caused by, through, or in connection with

such motor vehicle.

f

MR GRIFFI~=!Yes. Indeed, we say, looking at section 3(1)

that the only reason that those words "in respect
of such motor vehicle" have been used in the
eighth line, is to remind the reader that the

section is speaking of a particular motor vehicle.

The section is started:

Subject to this Act, the owner of any motor vehicle shall at all times during the registration, or as the case may be, any

renewal of the registration of such motor

vehicle -

and then it continues and then talks about the owner - become legally liable by way of damages in

respect of such motor vehicle for accidental

bodily injury.

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Technical(2)

And, of course, in the last line again the words

"such motor vehicle" appear again. So the

draftsman continues to remind the reader that

what the section deals with is a particular motor

vehicle, it is not liability in a set of facts

relating to another motor vehicle.

DAWSON J:  Well, the most you get out of it - this

inappropriate use of that phrase means that it

cannot be used to control the meaning of the

section?

MR GRIFFIN:	That is so, yes.
BRENNAN J:	Does "in respect of" link the motor vehicle to legal liability or to damages, if there be
any distinction between the two?
MR GRIFFIN:	It is arguable that it relates it to damages.
BRENNAN J:	What is your argument?
MR GRIFFIN:	It does appear to us that the words "legally liable" are also linked to the "in respect of"
but only for the purpose of tying the liability into that particular motor vehicle and for no
other. But it is certainly arguable that the
words "in respect of such motor vehicle" relate
to damages only.

(Continued on page 10)

~~ .:::;j;:

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Technical(2)

MR GRIFFIN (continuing): In GREEN & LLOYD 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:

But 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.

Justice Windeyer said, at 447:

Therefore, 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.

And we submit that the general approach in GREEN

do not appear in the Queensland legislation

& LLOYD is equally applicable in Queensland.

makes it even easier to classify the loading situation as a situation which is within the

terms of the cover.

Your Honours, before coming to the next

case authority, may we take you to some other
provisions of the Act which, in our submission,
suggest that the words "in respect of such motor

vahicle II should not in any way be seen as having

-.~F-irst of all, there is the long title to the	ad important and substantive limiting effect.
Act on page 2 which is - it is at the top of page 2:

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 connection with such Motor Vehicles, and for other purposes

One would have thought that if it is an important

dual test the long title to the Act would not

state one of the tests but not the other. Then

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Technical(2)

there is the definition of "Insured person"

at the foot of page 2. "Insured person" is

defined as:

A person who under a contract of insurance

in accordance with this Act is indemnified

against all sums for which he or his estate

shall become legally liable by way of damages

for accidental bodily injury (fatal or

non-fatal) to any person in any State or

Territory of the Commonwealth of Australia

caused by, through, or in connection with

the motor vehicle in respect of which such

contract is in force;

We then turn to section 4A. Section 4A

on page 8 is a section which enables the direct

service on insurers of process where the insured

person is dead or cannot be found and it reads:

(1) Where accidental bodily injury (fatal

or non-fatal) to any person has been caused

by, through, or in connection with a motor

vehicle insured under this Act but the

insured person against whom it is sought

to establish liability is dead or cannot

be served with process -

and then it goes on to say that in such circumstances

that process can be served on the insurer.

Then there is 4B at the foot of page 9

which provides for costs apportionment. If
a defendant is liable to a plaintiff in part
for damages in connection with a motor vehicle

and in part otherwise, it says:

(Continuing on page 12)

_-c::·;::.;: 

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Technical(2)

MR GRIFFIN (continuing): It says:

Where a judgment for damages is obtained against

an inusred person in respect of accidental

bodily injury (fatal or non-fatal) to any

person caused by, through or in connection with

a motor vehicle -

et cetera. Then again, on page 12, 4F, which sets out

the date from which the nominal ·

defendant provisions set forth in the Act apply:

Save where it is in this section otherwise

provided, this section applies to accidental

bodily injury (fatal or non-fatal) to any person

caused in Queensland, by,through or in

connection with a motor vehicle on or after

the first day of May, one thousand nine hundred

and sixty-five.

And subsection (2), which deals with who the claim is

to be made to in the event of the vehicle being
uninsured. Again, it says:

Every claim for damages in respect of accidental bodily injury -

and so on and using the same formulation with no

reference to "with respect to" the motor vehicle or

liability with respect to the motor vehicle. Again,

section 4F(3A) on page 14, which is a provision

which is to the effect that where the identity of

an insurer cannot be established, the claim may

be made against the nominal defendant.	The section
is in the same terms.	So the point we make is that,

time and time again, the draftsman reverts to setting forth the C011dition _ which_ must be applied or satisfied

in order to bring the indemnity _

into operation and nowhere in doing so does the

draftsman set forth the allegedly significant limitation

that the liability must be "in respect of" the motor

veq.icle. t:

TCOII:!.--Y J:  W'ef1, Mr Griff in, your argument, if an employee

recovers damages against an employer, that is,

damages for personal injuries, and the insurer of
the employer's motor vehicle concedes, as you say it

was conceded in this case, that the injury was caused: by, through or in connection -

with such motor vehicle, what is left for the employer

to establish in order to make the insurer liable in

respect of those damages?

MR GRIFFIN:  In our primary submission, nothing; that that is the

only test and, in our secondary submission, that if the

words "in respect of." have some effect, they do not

have the significant limiting effect that the Full Court

has accorded to them in this and other cases.

C2Tl0/ 1/VH	12	7/2/89
Technical ( 2)

under section 10 of the Act, the regulations form

Your Honours, that brings us to the policy itself.

part of the Act. Your Honours will find the policy at page 16

of the regulations and the body of the policy says that:

The insurer shall -

Indemnify and keep indemnified the insured person and the estate and the executors and

administrators of the insured person against

all sums for which he or his estate or his

executors or administrators shall be legally

liable by way of damages in respect of the

motor vehicle described herein.

So the words:

described herein -

are added, rather making it quite apparent that the

words:

in respect of

such -

motor vehicle -

simply identify the motor vehicle -

for accidental bodily injury -

and so on.

Yours Honours, in STATE GOVERNMENT INSURANCE OFFICE

(QLD) V CRITTENDEN ,(1966) 117 CLR 412, this Court considered

section 3(1) 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 the party who

wai physically injured in the relevant accident.

!:  .

_-,c;;::::::::;; i

(Continued on page 14)

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Technical(2)

MR GRIFFIN (continuing):  The judgments, particularly those

of Justice Taylor and Justice Menzies, consider
the words "in respect of" in the section and
we submit that an examination of those judgments

gives no support for the according of the significant

limiting effect on the operation of the section
by reason of the existence of these words "in

respect of such motor vehicle".

Quite the contrary, I should say that

Acting Chief Justice McTiernan referred to the

long title as an aid to its construction at

page 414 but, turning to the judgment of

Justice Taylor, he approached the matter by

examining the ambit which should be accorded

to the words "in respect of" and the word "for"

in the phrase:

legally liable by way of damages in respect

of such motor vehicle for accidental bodily

injury.

Now, as I have said, this examination was in

a different context from that before the Court

today; the context being the claim for loss

of consortium. And the question was, of course,

could it be said in relation to the husband's

claim that the tortfeasor was legally liable

by way of damages in respect of such motor vehicle

for aecidental bodily injury.

The question was, however, answered in the

affirmative on the basis that a broad interpretation

should be accorded to the words. At the top

of page 416, Justice Taylor said that what he

described as the "~,:p::-row view of the policy"

was not open. He proceeded to refer to the long

title of the Act, the reason for that reference

in that context being that the rather more general

statement in the long title of the kind of liability

ctvered by the Act supported the proposition

-~fiat the indemnity covered a claim for loss of

consortium. He then went on to refer to sections 4A,

4B and 4F - some of the sections to which I have

taken Your Honours this morning - as supporting

a broad rather than a narrow interpretation of

section 3(1).

In the result, His Honour held that the

words "in respect of" should be given a broad

meaning and although he was considering the breadth

of those words in the context of the rather broader

phrase, "in respect of such motor vehicle for

accidental bodily injury", they are the very

words with which we are here concerned.

C2Tl 1 /1 /snr,	l lf	7/2/89
Technica1(2)

It is submitted that there is no reason

why the ambit to be accorded to those words

"in respect of" should vary according to whether

they are being viewed as modifying the vehicle
or the injury. All that the words do, in our
submission, is to connect the damages and perhaps

the liability with the motor vehicle - the motor

vehicle being referred to in the section, namely

"the registered and insured vehicle" as opposed

to some other vehicle.

Justice Menzies said, at page 421, at the top of the page:

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 and I do not accept

the appellant's narrow construction of such

a beneficial provision.

Your Honours, 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, namely the case of WORKERS'COMPENSATION

BOARD OF QUEENSLAND V TECHNICAL PRODUCTS,

(1988) 62 ALJR 561, and the passage to which

we take Your Honours is at page 566.

(Continued on page 16)

i

....-::-s!

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Technica1(2)

MR GRIFFIN (continuing): In that case the words "in

respect of" were being considered in their

context in a section of the Queensland

WORKERS' COMPENSATION ACT.

DEANE J:	Mr Griffin, section 4A was amended after
the judgment in CRITTENDEN, was it, to
take out the words "in respect of"?

MR GRIFFIN: Section 4A of the MOTOR VEHICLES INSURANCE

ACT, Your Honour?

DEANE J:	Yes.
MR GRIFFIN:	I am not sure that section 4A has been

amended. The effect of the amendment is really

to restrict the operation of the Queensland

motor vehicles insurance legislation to driving

and parking situations.

DEANE J:  Mr Justice Taylor says:

Section 4A of the Act gives a direct

right of action against an insurer to

any person who could have obtained a

judgment in respect of accidental bodily

injury -

if you look to section 4A, it says - well, it

does not say "in respect of". Justice Brennan

points out to me I am wrong, apparently. Yes,

I am sorry.

MR GRIFFIN:  Yes. It does use the phrase "in respect of

such accidental bodily injury".

DEANE J:	But not "in respect of11 -
MR GRIFFIN:	Not "in respect of the vehicle".
DEANE J:	So, "in respect of" there seems to have been used
asi the equivalent of "by, through,or in

-.-c-Gdnnection with"?

MR GRIFFIN:  Yes. Now, in the case of THE WORKERS'

COMPENSATION BOARD OF QUEENSLAND V TECHNICAL

PRODUCTS PTY LTD, as I indicated, the Court

was consi.dering a section in th:·e Queensland

WORKERS' COMPENSATION ACT which used the

expression "in respect of". At page 566

Your Honours, Justices Deane, Dawson and Toohey

said this, and this is at the top of the left-hand

column:

Undoubtedly the words "in respect of"

have a wide meaning, although it is going

somewhat too far to say, as did Mann CJ in

C2Tl2/l/JM	16
Technical(2)

TRUSTEES EXECUTORS & AGENCY CO LTD

V REILLY that "they have the widest
possible meaning of any expression intended
to convey some connection or relation between

the two subject-matters to which the words

refer". The phrase gathers meaning from the

context in which it appears and it is that

context which will determine the matters to

which it extends.

In CRITTENDEN's case, as I have indicated, the

object of the Act was seen as being a broad one
and that that is so is really supported by the

section under consideration itself insofar, in

particular, as it uses the term in describing the

injury as injury caused "by, through, or in

connection with" such motor vehicle, and in

particular in that it deletes the term which

is found in the legislation of the other States,

namely, "the use of".

(Continued on page 18)

_....,.,-::;:.

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Technical(2)

MR GRIFFIN (continuing):  Your Honours, in STATE GOVERNMENT

INSURANCE OFFICE V STEVENS BROS,(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. The

relevant insured vehicle there was the compressor.

During the process the tow bar of the compressor

became caught on the back of the truck until increased

pressure resulted in its sudden release and that

injured 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 559 that

the consideration of whether the inJuries arose out
of the use of the vehicle - and I quote:

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 -

and Your Honour referred to GREEN & LLOYD. And it

is our submission that no matter how these words

"in respect of" are interpreted, no more proximate relationship is required between the liability and the vehicle under the Queensland legislation.

We would also wish to refer to FIRE AND ALL

RISKS INSURANCE CO V TURNER, (1976) 50 ALJR 767.

That case was a Queensland case so it was concerned

with the interpretation of section 3(1) of the

Act in question. There 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 indernnity was attracted because

the plaintiff's injuries were caused by, through or

in conne:ction with the vehicle and Justice Jacobs

w\th whom Mr Justice Gibbs, as he then was, and -=J_µstice Murphy concurred, said - and I quote from

page 768 starting at point Fon the left-hand column:

Wanstall SPJ concluded that the injury thus

suffered was in those circumstances caused by

through or in connection with the motor vehicle.

In my opinion, there was abundant evidence

upon which he could reach this conclusion. I do not think that it is profitable to compare

the facts of this case with the facts of other cases which have been before this Court, based

on legislation similar to, but riot identical

with the Queensland legislation. It is sufficient

to say that an injury may be caused by through

C2Tl3/l/BR	18	7/2/89
Technical(2)

or in connexion with a motor vehicle not only
when the injury arises from the method of

driving or controlling the vehicle, but also

when it arises from the nature of the vehicle's

cargo, or the behaviour of its occupants, or

of those entering or alighting from the

vehicle, at least where the actual physical

injury is done by the vehicle or a fragment

thereof. Whether or not in any particular

case the conclusion is reached that the injury

is so caused will depend on all the circumstances

of the particular case, as it is always a question
of fact.

In the present case, the injury was done by the broken glass -

and so on. Now, the question whether the shooter's

liability could be characterized as being in respect

of the motor vehicle was not, so it would seem, even

addressed. And the reason for this, we submit, is

that it was simply assumed - and,in our view,

correctly - that if the injury had occurred by through

or in connection with the vehicle then it followed that

the liability would be in respect of that vehicle and

in respect of the injuries in question.

(Continued on page 19)

-~"=~

C2Tl3/2/BR	19	7/2/89
Technical(2)

MR GRIFFIN (continuing): Certainly it was not understood

by the party contending for the indemnity that

he had to go on and satisfy an additional

significant test, namely, that the liability was

in respect of the vehicle. What appears to have

happened is that it is only in more recent years

that the Full Court of the Supreme Court of

Queensland has utilized these words "in respect

of" and has lighted on those to narrow the ambit of the section as it was understood to be properly interpreted at the time cases such as TURNER

were established or decided and, of course, it

is our contention that TURNER's case was not

only correctly decided but also the assumptions

upon which it was based were correct.

Plainly, if the words "in respect of such motor vehicle" are to have the significant limiting

effect that the Full Court says that they should

have then either the shooter's liability in TURNER

was "in respect of" the rifle or it was certainly

highly arguable that his liability was "'in respect

of"the rifle.

BRENNAN J:  Wbat was the first of the Queensland cases

which held that "in respect of" had a limitation

inherent in it narrower than:

caused by, through, or in connection with

such motor vehicle.

MR GRIFFIN:  It is the case of STEVENS V NUDD which I will

be coming to very shortly.

BRENNAN J:	Yes, thank you.
MR GRIFFIN:	Your Honours, one error that the form of

logic adopted by the Full Court entails, in our

submission, is that it rather assumes that if

liapility can be characterized as being in respect

off something other than the motor vehicle, for

~fuple, liability ·in respect of a sysbem of
work or liability in respect of an elevated
platform, then it cannot also fairly be said
to answer the description liability in respect

of the motor vehicle.

It suggests that somehow liability is to be

compartmentalized and that the result hangs on
descriptions of different forms of liability as

opposed to the proper interpretation of the relevant

statutory provision. The inquiry seems to get

lost in an examination of whether there is some

other description available for the liability
other than liability in respect of the motor
vehicle such that if there is such a description

available then it is held that it is not liability

in respect of the motor vehicle.

C2Tl4/l/MB	20	7/2/89
Technical(2)

It is our submission that unless section 3(1)

is misinterpreted in the manner in which we subnit
it was misinterpreted by the Full Court, the feature
of the facts which admittedly caused the injury

to answer the description that it was:

caused by, through, or in connection with

such motor vehicle -

namely, the feature that the injury occurred

whilst the plaintiff was actually loading the
motor vehicle, necessarily means that a person

liable "in respect of" the suitability of the

loading procedure is liable "in respect of" the

motor vehicle no matter how that phrase is

interpreted. It is only if one gives it an

interpretation that it could not possibly be given

that one can reach a different conclusion.

As I said, the reason that the Full Court

gave for holding that this was not the position

is that the words "liable in respect of the

motor vehicle" have, as it said, "a significant

limiting effect on the otherwise extreme width"

of the section. Now, the words "significant limiting

effect" are taken from the judgment of

Chief Justice Campbell in BOATH V THE CENTRAL

QUEENSLAND MEAT EXPORT COMPANY, (1986) 1 Qd R 139,

which I will come to in a moment, and it is at

page 144 that the term "significant limiting effect"

is used.

I should say that it is not necessary to our

argument to say that the.actual decision in BOATH's

case was wrong but we do say that the judgment of

Chief Justice Campbell spawned an error of law
in so far as he stated that the words "liability

in respect of" have "a significant limiting effect"

on the operation of the section.

(Continued on page 22)

----~--.,j;,-

C2Tl4/2/MB	21	7/2/89
Technical(2)

MR GRIFFIN (continuing):  Might we come directly, Your Honours,

to the two Queensland Full Court decisions which

are the forerunners of the decision under appeal.

The first, as I said, is STEVENS V NUDD, (1978) Qd R 96,
and then the second one is BOATH's case to which
I have just referred .

It will be argued against us that these

decisions show the importance of using the words
"in respect of" in a substantive and limiting

way in order to curb the otherwise substantial

width of the section.	Might I take them in
chronological order.	In STEVENS V NUDD, the

owner of a dog was walking his dog along a footpath;

the dog was unleashed and the dog suddenly ran

out on to the road and the plaintiff, who was

riding his registered and insured motor cycle

along the roadway, collided with the dog and
consequentially sustained injuries.

The appeal involved a number of points and,

in particular, the appellant was successful in

overturning the trial judge's finding of negligence

on the part of the dog owner. That decision

was overturned on the ground that the dog had

not previously shown any propensity to run out

on to roads. But one of the points involved

in the case was whether, if he was liable, the

dog ownini	defendant was entitled to an indemnity
under section 3(1).	The point actually arose

in the context of the question whether the proceedings

had to be served upon the licensed insurer.

In dealing with this, Justice W. B. Campbell,

as he then was, said, at page 98C:

I do. not consider it necessary to discuss

the principles of statutory interpretation

or those relating to the construction of

policies of insurance. The argument for

the appellant overlooks the words in the

to
t
. i	section "legally liable by way of damages

.-...,-<" =··	in respect of such motor vehicle." Is the
appellant a person who has become legally liable by way of damages in respect of the
respondent's motor cycle? The negligence
alleged against the appellant is that he
failed to take reasonable care in relation
to or in respect of the control of his dog
and not that he was negligent in respect
of the respondent's motor cycle. The
legislative intention is clearly expressed
by the language which, in compendious form,
is: "the owner shall indemnify himself
and all persons against sums for which he
or they shall become legally liable in respect

C2Tl5/l/SDL	22	7/2/89
Technical(2)

of the owner's motor vehicle for bodily

injury to any person." The resondent's

injuries did not arise out of actions,

for which the appellant was legally liable,
in respect of the motor cycle. Therefore,
the appellant is not a person legally liable
to the owner of the motor cycle by way of
damages in respect of that motor cycle.
The cases dealing with the construction
of the words "by, through, or in connection

with such motor vehicle" are not relevant.

Just stopping there, I would in passing emphasize

the fact that the basis upon which Mr Justice

W.B. Campbell, as he then was, put it was that

the person said to be liable, namely the dog

owner, did not have the motor cycle under his

control. That, of course, cannot be said in

the present case where all of the aspects of the loading operation in question were under the control of the appellant.

(Continued on page 24)

.__-c-::~

C2Tl5/2/SDL	23	7/2/89
Technical(2)

BRENNAN J: ls that the basis on which you seek to distinguish

STEVENS V NUDD or do you attack STEVENS V NUDD?

MR GRIFFIN:  That is the basis on which STEVENS V NUDD

can readily be distinguished but we submit in

the first instance that STEVENS V NUDD has simply
been incorrectly decided in the sense that the
logic of the court is quite incorrect, that

what has to be determined in relation to STEVENS

V NUDD is simply whether the plaintiff's injuries

were caused by,through or in connection with

the motor vehicle and if one is content to answer

that question in the affirmative on those facts

then the indemnity is attracted.

DEANE J: On your argument, how does it work if you have

a collision between two motor vehicles where

you could say the injury caused was caused by,

through or in connection with each of them?

ls the result that regardless of fault a claim

lies under each of the two policies?

MR GRIFFIN: 

No, because there is still the examination

of the motor vehicle in question for the purposes
of the section.

DEANE J: Yes, but say the injury is caused solely by the

negligence of the driver of vehicle A but it
could still be said it was injury caused in

connection with vehicle B because there was

a collision. Unless "in respect of" had a significant

limiting effect, would not your argument necessarily

lead to the conclusion that the policy in respect
of vehicle B covered the driver of vehicle A

in respect of the injury he had caused?

MR GRIFFIN:  In other words, the innocent vehicle's insurance

is attracted simply because the injuries have

o<icurred "by, through, and in connection with"

~bJth vehicles?

DEANE J: 

Yes.

MR GRIFFIN: 

The correct way of approachin9 it, in our

submission, is to use the words 'by, through,
or in connection with" but despite the width

of those words, it does not follow that simply

because someone is, say, in a vehicle when he

is injured that the phrase is attracted. And

on that basis, STEVENS V NUDD can be argued

to be correctly decided. In other words, the

mere fact that the plaintiff was on his motor

cycle when these events occurred does not mean

C2Tl6/1/ND	24	7/2/89
Technical(2)

that he has suffered his injuries "by, through,

or in connection with" that motor cycle.

After all, in TURNER'S case, if we assume

that a shot was fired by someone who was not
the driver of the vehicle - let us assume it

was a person in a nearby paddock who was firing

indiscriminately, the mere fact that the plaintiff

had been in the vehicle at the time he was shot

would not mean that one would have characterized

his injury as one which occurred "by, through,

or in connection with" the vehicle.

BRENNAN J:	Why not?
MR GRIFFIN:	Because it was a feature of the case that

the rifle was discharged by the person who was

alighting - by the driver.

BRENNAN J:  But what attracted the "by, through, or in

connection with" was the sliver of glass which

inflicted the injury, was it not?

MR GRIFFIN:  With respect, Your Honour, what attracted

it was the combination of circumstances. His·Honour

said:

In the present case, the injury was done by the broken glass, and the glass

was broken as the result of the negligent

conduct of the owner whilst alighting from

his own vehicle.

(Continuing on page 26)

~-=

C2Tl6/2/ND	25	7/2/89
Technical(2)

MR GRIFFIN (continuing): But, to ~ome back to Your Honour

Mr Justice Deane, the other way of approaching it

is to give the words "in respect of "a sufficient

meaning to require one to see the liability as

attaching to the motor vehicle which is at fault so

that one cannot go so far as to say that the insurance

of an innocent motor vehicle, as it were, is attracted.

BRENNAN J: Well, does that IJEaII that "in respect of "means that

the connection which establishes that "by, through

or in connection with the motor vehicle." is a
connection which must give rise to the liability insured

against?

MR GRIFFIN:  Yes. It connects the liability with the motor

vehicle in question.

BRENNAN J: It is the same connection under both phrases.

MR GRIFFIN:  I am sorry, Your Honour.

BRENNAN J: There is a connection imported by· "in respect of."

MR GRIFFIN: Yes.

BRENNAN J: There is a connection imported by the phrase, "by,

through, or in connection with."

MR GRIFFIN:	Yes.
BRENNAN J:	The question is whether there is any difference

between those two connections.

MR GRIFFIN: Well, certainly, there is no reason if one - and

particularly on the facts of this case, in our

submission - if one answers the_ "by, through or in

connection" with question in the affirmative, then

the same result must apply in relation to "in respect

of."

BRENNAN J:  But the question is whether or not the connection

which is imported by the later phrases is the connection

---wMch is part of or which gives rise to the liability

which, on your submission, is one of the things linked

by the earlier phrase.

MR GRIFFIN:  Yes. The significant connection is the connecting

words that appear at the end of the section, in our

submission. Perhaps I should take Your Honours to

what Mr.Justice Andrews said in STEPHENS V NUDD.	He
put it this way, at the bottom of page 109.	He said:

The appellant relied upon a number of authorities, which I would seek neither to question nor

distinguish, according to which it could be
argued that the respondent suffered injury

caused by, through, or in connection with his

motor vehicle. However I do not think that this

C2Tl7/l/VH	26	7/2/89
Technical(2)

assists the appellant. In my view the
sub-section (3(1)) should be read as providing
that the respondent was required to inderrmify

himself and other persons and keep himself

and such 1·other persons inderrmif ied by a contract

of insurance against liability in respect of

his motor vehicle by him or his estate or any

such person or the estate of that person where

injury has been caused to any person (including

injury caused by any such other person to the

respondent himself). The insurance whereby he

or such other person is kept inderrmified is in

respect of the vehicle, not in respect of the

owner or some other person. Carrying it further,

it is not in respect of the appellant or his dog.

This really gets back to what I was saying before about

the compartmentalization of liability. It seems that

because His Honour was able to say, well now, this is

not liability in respect of the motor vehicle; it is
liability in respect of the dog, His Honour was content

to find that simply on that basis, that the inderrmity

was not attracted.

(Continued on page 28)

~ "

~s, i

C2Tl7/2/VH	27	7/2/89
Technical(2)

MR GRIFFIN (continuing): In BOATH's case, Boath drove

his truck over a bridge on a country property.

The defendant was the occupier of the property

and the bridge and while Boath was driving over

it, the bridge collapsed. The defendant occupier

of the land was held liable to Boath on the

ground of lack of strength of the bridge. One

of the questions argued was whether the defendant

occupier was entitled to an indemnity under the

third party policy. The trial judge held that

he was, on the ground that Boath had suffered

his injuries by, through, or in connection with

the motor vehicle and the defendant occupier was

liabll to him.

Chief Justice Campbell, with whom

Justices Matthews and Carter concurred on

this point, said this, at pages 143 to 144:

It was submitted by counsel for C.Q.M.E. -

that was the occupier of the land -

that the words "in respect of" are words

of the widest import (McDOWELL V BAKER),

but the meaning of such phrase "depends very

much on the context in which it is found":

STATE GOVERNMENT INSURANCE OFFICE (QLD) V REES.

If the construction of s.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, subsec. (1) would then,

in effect read: "The owner of any 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

---..--c-" _-:;;;	by, through, or in connection 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 to them having a
significant limiting effect on the otherwise
extreme width or ambit of the subsection.
Reliance was placed on the decision of the
High Court in FIRE AND ALL RISKS INSURANCE CO.
LTD. V TURNER, but that was a case where the legal liability for .damages arose from the negligence of the owner of the motor vehicle
when alighting franthe vehicle and so was a
liability "in respect of" the motor vehicle.
Their Honours of the High Court were concerned
with whether the injury caused by the shattering

C2Tl8/l/JM	28	7/2/89
Technical(2)

of the windscreen as a result of the

negligent discharge of a rifle was

an injury casued "by, through or in

connexion" with the motor vehicle. In

my opinion, for the reasons I have given, provisions of s.3(1) of the Act, to

indemnify C.Q.M.E. for the damages by way

of bodily injury which it is liable to

pay to the plaintiff.

Your Honours, if these decisions are correct, that is, STEVENS V NUDD and BOATH's case, they

are readily distinguishable from the present

case in that in those cases the relevant motor

vehicles were not under the control of the person

said to be liable. In STEVENS V NUDD all that

the dog owner had under his control was the dog
and in BOATH's case all that the occupier defendant
had under his control was a bridge. In the

present case, on the other hand, the registered

motor vehicle was being loaded by the appellant

as part of its business, the appellant having

contracted the presence of the vehicle for that

purpose and the appellant ;1as engaged in loading

the vehicle and as part of that process the
fork-lift was placed in juxtaposition with the

registered vehicle to enable the loading to occur.

As the photographs show, the fork-lift was raised

for the express purpose of facilitating the loading
process and had it not been raised the plaintiff

would not have fallen and would not have sustained

injury. The ~elative positioning of the fork-lift and

the motor vehicle and the safety of the plaintiff
while he loaded bags from one to the other was the

responsibility of the appellant as the plaintiff's

employer.

(Continued on page 30)

_-c::  .. ~

C2Tl8/2/JM	29	7/2/89
Technical(2)

MR GRIFFIN (continuing): It may be that the true position

is, and it really does not affect the result

either the only test is, 11{,Jere the_plaintiff's	for which we contend one way or the other, that
injuries caused by, through or in cnnnection
with the registered vehicle?", and that, if one
is content to find in the affirmative on that factual question, the indemnity is attracted or, alternatively, the words "in respect of"
at least have a sufficient limiting effect to
certainly identify the liability with the vehicle in question and to prevent the result that one could recover, in effect, against the insurer of an innocent vehicle in the circumstances that
Your Honour Mr Justice Deane put to me.

DEANE J:	But what if it was a motor bike going along the highway and a person shot a rifle at it which
went into the petrol tank and the motor bike exploded? There would be no doubt that the injuries were caused in connection with the vehicle because the explosion of the vehicle caused them.
MR GRIFFIN:	Yes.
DEANE J:	On your argument, would the person who shot the rifle be covered by the insurance?

MR GRIFFIN: If the words "in respect of" have no effect,

yes; if they have some effect, no.

DEANE J:  I follow that. Then one is faced with the problem

of precisely what effect does one give them?

MR GRIFFIN: Yes, that is so. But, fundamentally, we say

that in the circumstances of the present case,

whatever effect one gives them, unless one gives

them the significant limiting effect referred

to by the Full Court, then, as I have said, the

very feature which caused these injuries to be

sustained by, through or in connection with the

vfhicle is the same feature that necessarily --eauses the liability to be in respect of the

vehicle.

Your Honours, we have nothing further.

BRENNAN J:  Thank you, Mr Griffin. Mr Douglas?

MR DOUGLAS:  I hand up, Your Honours, copies of our outline

of submissions and also copies of a decision

in TONGA which is on our list but which we understand

has not reached the library here yet.

BRENNAN J:  Thank you.

C2Tl9/l/SDL	30	7/2/89
Technical(2)

MR DOUGLAS:  Your Honours, dealing firstly, before we forget,

with the submission made in paragraph 2 of my

learned friend's outline, it is not strictly

correct to say that we conceded below, before

the trial judge, that the plaintiff's injury was caused by, through or in connection with the registered vehicle. His Honour the trial

judge stated it correctly in his judgment - what

happened -at page 123, about line 40, where he

said:

The real argument of the third party

is not so much that the injury was not
"caused by, through or in connection with
the insured vehicle", but rather that the

liability of the defendant is not "in respect

of" the vehicle.

Something different, we would say, to a concession

such as that proposed by our learned friends.

(Continued on page 32)

---... ~-~~-

C2T19/2/SDL	3 1	7/2/89
Technical(2)

BRENNAN J:  The point that was raised in your notice of

appeal to the Full Court was that on the hypothesis

that it was "by, through or in connection" , it

was not "in respect of"?

MR DOUGLAS:  N6, quite. It may well follow, Your Honour,

that once it is "in respect of" - well, it

does follow, I expect :- that once it is

"in respect of". it is "by, through, or in

connection with".

BRENNAN J:  But that is not the point that the Full Court

was addressing, was it? The Full Court was invited

toaddress the question if it were "by, through, or in connection with" was it none the less "in respect of"?

MR DOUGLAS:	Yes, Your Honour, that is so.
BRENNAN J:	Well, now, for the purposes of this appeal

are we to take it that the injury was caused "by,

through, or in connection" with the vehicle, or not?

MR DOUGLAS:  We would rather not make the concession, we

would rather approach it on the view that what is

to be determined is whether there was liability

"in respect of" the insured motor vehicle.

BRENNAN J:	I appreciate that that is the point to which you will ultimately come and must ultimately come
in your address but if it be relevant to consider
the question of "by, through, or in connection with" for the purposes of determining that ultimate question must we not assume, as I confess I have read your notice of appeal to the Full Court
as assuming, that the injury was caused "by, through, or in connection with"?

MR DOUGLAS:  Yes, Your Honour, I expect we must do that.

--<:- ~-.;-

BRENNAN J:  Yes.

MR DOUGLAS:  Ultimately. Your Honours, the phrase "injury

caused by, through, or in connection with such

motor vehicle",that phrase raises a question

whether the injury was a consequence direct and

not remote of the operation of loading of the

motor vehicle by the plaintiff. You recall what

this motor vehicle was, was a skeletal trailer -

there is a photograph in exhibit 28, I think -

upon which was bolted the container which is a

four-walled Jbject into which things were

being loaded. What was registered was, in fact,

the trailer, the skeletal trailer upon which the

container was bolted.

C2T20/l/MB	32	7/2/89
Technical(2)

In our submission, the plaintiff to

succeed in a case such as this must first of all
prove that the injury was caused "by, through, or

in connection with" and, secondly, must prove that

there was a liability "in respect of" that motor

vehicle. To take the example perhaps given a

moment ago by Your Honour Mr Justice Deane of

the motor cycle going down the road, we would
say that the injury there caused by the exploding

bike was "by, through, or in connection with"

the motor cycle but that there was no liability

"in respect of" that motor cycle in the person

who fired the shot.

Your Honours, the second phrase we deal

with in the section is the phrase "shall become

legally liable by way of damages in respect

of such motor vehicle". We say that raises

a question whether the defendant's liability

which requires proof of negligence of breach of

statutory duty is "in respect of" that motor

vehicle. The questions directed to the connection

between the defendant's liability and the motor

vehicle and not the injury and the motor vehicle,
we say, they are two separate and distinct questions.

The phrase, we submit, Your Honours, points to a causal connection.

Now, Your Honours, we appreciate the dicta

in the various cases collected in WORKERS'

COMPENSATION BOARD V TECHNICAL PRODUCTS - and may we go to those - which deal with the ambit

of the phrase "in respect of" although collected

firstly by Justices Wilson and Gaudron at page 562,

the second column beginning at letter E.

(Continued on page 34)

----c--=-

C2T20/2/MB	33	7/2/89
Technical(2)

MR DOUGLAS (continuing):

It has been said, perhaps somewhat

extravagantly, that the words "in respect

of" "have the widest possible meaning of

any expression intended to convey some

connection or relation between the two

subj e c t -matters to · w h i ch the words refer 11 :

TRUSTEES EXECUTORS & AGENCY CO LTD V REILLY,

cited in STATE GOVERNMENT INSURANCE OFFICE

(QLD) V CRITTENDEN. The words were cited again by Gibbs J in McDOWELL, at 419, and

by Mason J in STATE GOVERNMENT INSURANCE

OFFICE (QLD) V REES, which his Honour added

the comment:

"But, as with other words and expressions,

the meaning to be ascribed to 'in respect

of' depends very much on the context in

which it is found."

We submit Your Honours must go to the context

in which it is found in this section. We submit

the phrase points to a causal connection but
whatever causal connection it does not seek
to limit the causal connection between the injury

and the motor vehicle. It seeks to limit the

ambit of the section though only to cases where

there is some causal connection between - that

is, in the sense of breach of statutory duty

or negligence between the injury and the motor

vehicle.

In that sense it limits it to that degree but not to the wide degree our learned friends

would perhaps urge upon Your Honours. We would

submit that they have that degree of a limiting

effect upon the width of a section and we adopt,

Your Honours, the reasoning of Chief Justice Campbell

in BOATH'S case at page 143 which has been referred

to you , beginning at, Your Honours, line 33.

Ifshould read it again, Your Honours:

__,,,:<: ~

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". If the construction
of s. 3(1) put forward by Mr Fitzgerald

Q.C., FOR C.Q.M.E., is cdrrect then the

words "in respect of such motor vehicle"

are redundant and have no meaning or effect
b~ way of limitation. Leaving those words

to one said, subsec. (1) would then, in

effect read:  "The owner of any motor vehicle

shall ... indemnify himself and all other

persons ... by a contract of insurance ... against

C2T2 l /1 /ND	34	7/2/89
Technical(2)

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 11 •	However, meaning
must be attributed to the words 11 in respect	of such motor vehicle 11 and the plain meaning
of the words leads to them having a
significant limiting effect on the otherwise
extreme width or ambit of the subsection.

We will deal with TURNER 1 S case in a moment,

Your Honours. Your Honours, we submit that

that reasoning is correct because if it is not

correct the interpretation urged by our learned

friends, that is that the words have no added

meaning in the section, lead to some curious

results, some of which have been referred to

this morning. One, is the case where two motor

vehicles collide. Is it, as Your Honour

Justice Deane ~ropounded, there is no need then; you get access to the insurance policy by the

very fact that there is an injury in connection

with the motor vehicle.

It leads to the silly result, Your Honours,

in the other example quoted. But FIRE AND ALL

RISKS V TURNER is different, we would submit,

because, firstly, in that case, it seems that

Their Honours there of this Court were not concerned

with an argument addressed to them based upon	the meaning, if any, of the words 11 in respect
of". If, alternatively, the assumption was
made at that appeal that the words had or gave
no added meaning to the section, then that was
wrongly assumed.

(Continuing on page 36)

i

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C2T21/2/ND	35	7/2/89
Technical(2)

MR DOUGLAS (continuing):  In any event, Your Honours, we do not

have to go so far as to say that. In our submission,

TURNER's case is correctly decided on its own facts in

the sense that the owner of the motor vehicle, when

alighting from it, negligently discharged a rifle

which he was intending to use on top of the motor

vehicle using the motor vehicle as a prop for it, or

a steadier so he could take aim at a kangaroo.

Now, Your Honours, we submit that it is not necessary to decide here that it is incorrectly decided

because (a) the proposition was not put forward or

argued and (b) it was assumed but it was not correctly

assumed. Your HonoursJ the trial judge in this

case determined the issue by considering the degree

of irrn:nediate relationship between the activity

causing injury, that is, the loading, and the

vehicle. He ought properly t9 have considered the

relationship between the acts of negligence and to

a breach of statutory duty and the vehicle. Had

he done that he would have determined, Your Honours,

that this injury arose solely because of the system

of work adopted by the appellant here and had nothing

to do with the motor vehicle which was just

coincidentally there. It could have easily have

been - as we state in our last proposition in our

submissions, Your Honours - a wharf, a loading dock

or some other sort of platform upon which these

pallets were brought by the fork-lift to be unloaded

on to such a dumb object.

DEANE J:  Does that not raise a bit of a problem, though? I

mean, assume the container was on the ground.

MR DOUGLAS:  And not attached to the vehicle, yes.

DEANE J:  And not on anything. You would not then say that

the injury was caused by, through or in connection with

the ground.

MR DOUGLAS:  Only in the sense that it is there, Your Honour.

: 

DEANE J:-~~s, but it would not - as I say, you would not say

that, which means implicit in the hypothesis upon

which we are dealing with it is surely the approach

that the vehicle and the container be treated as one

for the purpose of the exercise.

MR DOUGLAS:  Yes, your Honour, that is so. That was the

situation in TONGA's case - which I will not refer to

in any detail - but Mr Tonga while working - well,
taking a break and was sitting on a toilet and near

him was a crane which had been used to lift up a

container which contained a motor vehicle - I think

it was a fork-lift - and unfortunately for him the

driver of the crane misjudged the weight of the

object he was lifting and the crane gave way causing

C2T22/1/BR	36	7/2/89
Techical(2)

the container and the enclosed motor vehicle to fall

on the toilet where he was sitting,causing him severe

injury. The approach taken by the Full Court there

was that you must treat the crane and the vehicle

as a composite unit for that purpose. There are
other cases likes that in our list. They are in

part B which deal with that sort of proposition.

TOOHEY J:	Mr Douglas, the container is something of a red herring, is it not?
MR DOUGLAS:	We submit so, Your Honour, yes.
TOOHEY J:	Had there been no container there might still have

been an operation involving loading the truck which

required the loading to be effected from a pallet

some distance in the air from which this workman fell

and injured himself. The container does not seem to

me to have a great deal to do with it except it

happened to be part of the operation and happened

to be on the back of a truck and happened to be bolted

to the truck.

MR DOUGLAS:  That is so, Your Honour. That was,in effect,.our

submission at the trial, before His Honour and, you

see, that really was adopted by the Full Court -

Mr Justice Connelly's judgment.

DEANE J:  But if you accept that, your 6 loses most of its

weight, does it not?

(Continued on page 38)

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C2T22/2/BR	37	7/2/89
Techical(2)

MR DOUGLAS:  Your Honour, it may. We are seeking to draw

an example, I suppose, of something which

was similar but not the same.

TOOHEY J: But 6 really looks at the situation of the container

in some different position. I am inviting you to

look at a situation in which there is no container
at all, in which there is a motor vehicle

unquestionably, which is being loaded, but which

you would say plays no part in the injuries

suffered by the workman because he fell from a

pallet on a fork-lift which, I assume you would

say, incidentally happened to be loading a motor

vehicle.

MR DOUGLAS:  Your Honour, we would say if it is correct

to look at the section to determine what is

meant by "liability in respect of", if that

means, as we say, a causal connection between

the vehicle and the injury, if you look at it

that way, you will see that the only thing

causing the injury was the system of work.

It had nothing to with the vehicle.

BRENNAN J: That is what gives me some difficulty and

I think it is probably the difficulty to which

Justice Deane was referring earlier. If in this case one is to say that this was an

injury which was caused in the loading of the

vehicle, and because it was caused in the loading

of the vehicle it is an injury that is caused

by, through, or in connection with the vehicle,

and then one says . there wa·s negligence in the

system of loading and that that is negligence

for which the defendant is liable, why is that

not a liability in respect of the vehicle

for precisely the same reasons as the injury

was an injury caused by, through, or in connection
with? In either case it is the loading which

provides the nexus.

~

MR DOUGLAS: { We submit that you must first look at the

--~ection to see whether there are two questions

to be determined, whether, one, as my learned friends
would put it to you, or two. If we are correct

and you look at the loading system, you must find

some causal nexus between the motor vehicle and

the injury. The fact that it is there, in our

submission, is not sufficient - merely there.

BRENNAN J:	And the injury, do you say, or the liability?
MR DOUGLAS:	To the liability, Your Honour.

BRENNAN J: Liability?

C2T23/l/JM	3g	7/2/89
Technical(2)

MR DOUGLAS:  The fact that it is merely there is not

sufficient.

BRENNAN J:  My question really is that if there be

a nexus between the injury - I am looking at

the last line of the section now - and the

motor vehicle, and that nexus consists in a

series of events or transactions which gives

rise to the liability, why is it that the nexus

thus provided in the last line does not provide

the necessary nexus for the earlier line with

respect to "in respect of", because the connection

is precisely the same?

MR DOUGLAS:  Your Honour, we say it is a different

connection. We have tried to avoid the

word "connection", really, in describing both

because we say "connection" refers only to the

second part of our proposition, that is, to the

injury.

BRENNAN J: Call it by whatever term you wish, the

problem that I have is why is it that

whatever that thing may be which links injury

to motor vehicle is not that which links liability

to motor vehicle?

MR DOUGLAS:  Your Honours, I suppose if we are looking

for principle, to draw an example, in TURNER's

case the connection between the injury and the motor vehicle was the fact that a piece of the motor vehicle entered Mr Turner's eye, or

whatever his name was. I think it was not

Turner; it was some other fellow.

(Continued on page .40)

i

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C2T23/l/JM	39
Technical(2)
MR DOUGLAS (continuing):	An example of a motor cycle, the

connection between the injury and the motor cycle

was the e~ploding fuel tank, and so on we can

go. In this case, the only connection, if you like,

is the fact that it was there, and nothing more. It

was part of the loading system if you like. But we

submit you must have something other than that sort
of connection to attract the liability; that the

connection -in the examples given and in the cases

decided - is a physical connection, if you like; an

actual injury caused by a part of the motor vehicle,

even non-negligently. But it must go one step further

and show a liability in negligent

statutory duty to bring in the first, if you like,

the first connection. I keep going back to that

word, but we say there are two necessary connections

to be proved and the latter is not sufficient to

prove the first.

DEANE J: In this case would the necessary connection in

relation to the fork-lift be there, which, I presume,

is a. motor vehicle.

MR DOUGLAS:  It is a motor vehicle, but not registered and not

required to be registered.

DEANE J:  No, I know it is not registered but I as~ it is a

motor vehicle.

MR DOUGLAS:  I assume it is, yes.

DEANE J: It moves around and so forth.

MR DOUGLAS:  Yes.

DEANE J: Well, would that connection be there?

MR DOUGLAS:  Yes, Your Honour, because he fell from it.

DEANE J: It is a very narrow line when a,sked to draw an 9.ppeal, is it

not?

MR DOUGLAS:  1our Honour, I suppose it really comes back to our

~~~arned friend's ultimate submissions that this really is

a .case that depends upon its own facts. When he was

asked, I think, by one of Your Honours, does it have any meaning, he says no firstly, and then he says it

has some meaning and if so, what, he really descended then to an argument upon the facts, as saw it. There

is nothing n:ore than -that in this case, in our submission.

But we submit, Your Honour that the necessary, if you like,

physical connection between the motor vehicle container,

trailer, has not been shown and, in any event, what has

been shown is not suffidient to give rise to the
liability in respect of, because there can be shown ~o
causal connection between -that is, in a sense of

negligence - between that motor vehicle and the injury.

C2T24/l/VH	40	7/2/89
Technical ( 2)

MR DOUGLAS (continuing):  Your Honours, that was the approach

taken, I think, with respect, by the Full Court - I
will not labour it - at page 136 of the record where

His Honour Mr Justice Connolly said at line 40:

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 -

referring to STEVENS V NUDD and BOATH -

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. What is required

is that there be a relationship between the motor

vehicle and the very act or omission which gives

rise to that liability."

We adopt those words, Your Honours and, also, on

page 139 where His Honour said at line 15:

The learned Judge held that an act of negligence on the part of the insured directly

related to the innnediate system of loading into

a transport vehicle is "of such proximity" as to
come within the cover. This, with respect, is to

misstate the statutory test. What must be

established is liability in respect of the

insured vehicle. It is not sufficient that

the system of work in the course of which the

breach of duty occurs is related or, if it

matters, directly related to the loading of the

insured vehicle. In this case the insured

_-c--·:~-	vehicle played no relevant part in the breach of duty and its only involvement in the events
which constituted the breach of duty was its
presence at the scene. It was suggested that
the trailer and container were a composite
unit and that I would accept. The respondent's
breach of duty and therefore its liability were
however not in respect of this composite unit
but :in respect of the unsafe state of the load
on the forklift seven feet above ground level where the plaintiff was required to work -

and so on.

C2T25/l/SH	41	7/2/89
Technical(2)

MR DOUGLAS (continuing): We adopt, with respect, those words

of His Honour.

Finally, Your Honours, we would submit, without reading it, that the phrase "in respect

of" has a similar meaning to "for" for the reasons

expressed by His Honour Mr Justice Taylor in

STATE GOVERNMENT INSURANCE OFFICE V CRITTENDEN,

(1966) 117 CLR 413 at 416 and 417. If read that

way, that is, liability for the motor vehicle,

we submit we get some added strength for the

argument that there must be shown, in addition

to the connection in the second part of the section,

a liability for the motor vehicle in the sense

of there being negligence or breach of statutory

duty. They are our submissions, Your Honour.

BRENNAN J:	Thank you, Mr Do~glas.
DEANE J:	Mr Douglas, it is probably not of any great relevance but why did not the fork-lift have to be registered
under this Act?
MR DOUGLAS:	I expect because it did not go on to a road,

Your Honour.

DEANE J:  I assumed that too. I am just looking for

the statutory provision.

MR DOUGLAS:	Your Honour, in Queensland, my memory is that the MAIN ROADS ACT requires vehicles which go
on to public roads to be registered.
DEANE J:	But why does not section 3(1) apply to that?
MR DOUGLAS:	Your Honour, for the reason - it is the MAIN ROADS

ACT which requires registration, by you cannot

obtain registration until you first have insurance

under the MOTOR VEHICLES INSURANCE ACT.	So, if you
apply to have a car registered - - -

DEANE J:  ! follow. So it is only during the registration,

--and if it is not on the road it does not have to be

registered.

MR DOUGLAS:  Yes. You see, you can drive a car on a property,

if you like, out west, for as long as you like

without registering it or insuring it, but once

you take it to be registered you must first have

a c er t i f i cat e o f insurance for the purpose of registration.

DEANE J:	Thank you.
MR DOUGLAS:	You will see the definition, Your Honour, of

"owner" in section 2 of the Act which reads:

C2T26/l/HS	42	7/2/89
Technical(2)

"Owner" - The person registered in the records of the Commission of Main Roads under the MAIN ROADS ACT as the owner -

then section 3(1), of course, imposes upon the

owner an obligation to insure.

(Continued on page 44)

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C2T26/2/HS	43	7/2/89
Technical(2)
DEANE J:	Well, I think the real answer is 3(1).	only
requires insurance during the registration.

MR DOUGLAS:	Yes, that is so, Your Honour.
BRENNAN J:	Mr Douglas, have you anything to say about the

question of reserving the matter of interest?

MR DOUGLAS: Well, it was not raised with us, sir, but I do

not think that there would be any difficulty. I

think it could be worked out between the parties,

really, as my learned friend said.

BRENNAN J: Yes, right.

MR DOUGLAS:  And we would agree that liberty to apply be given

and would not expect we would come back.	You would
not want us back, anyhow.

BRENNAN J:  Yes, it would be understood that you may not necessarily

be at liberty to address oral areuments on that

question.

MR DOUGLAS:	Oh no, we appreciate that, Your Honour.
BRENNAN J:	Mr Griffin, anything in reply?
MR GRIFFIN:	Nothing by way of reply, if the Court pleases.
BRENNAN J:	The Court will consider its decision in this matter.

AT 11.56 PM THE MATTER WAS ADJOURNED SINE DIE

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C2T27/l/VH	44	7/2/89
Technical (2)