TNT Australia Pty. Ltd. v Wills

[2004] NSWCA 455

CITATION:	TNT Australia Pty. Ltd. v. Wills & Ors. [2004] NSWCA 455 revised - 13/12/2004
HEARING DATE(S):	30 September and 1 October 2004
JUDGMENT DATE:	13 December 2004
JUDGMENT OF:	Hodgson JA at 1; Pearlman AJA at 59; Windeyer J at 60
DECISION:	1. Appeal allowed against Mr. Wills. 2. Mr. Wills to pay TNT's costs of the appeal, and to have a Suitors Fund certificate if otherwise eligible. 3. Judgment in the proceedings for TNT against Mr. Wills, with Mr. Wills to pay TNT's costs of the proceedings on the statement of claim. 4. TNT's appeal against GSW and Zurich dismissed with costs. 5. Zurich's cross-appeal dismissed with costs.
CATCHWORDS:	NEGLIGENCE - Workers' Compensation - Motor accidents - Plaintiff injured when manoevring ramps on car-carrying trailer supplied by defendant - Plaintiff working as employee of his own company pursuant to a contract between that company and the defendant - Whether defendant owed duty of care analogous to that of an employer, or only as supplier of trailer - Whether duty breached - Whether defendant entitled to contribution - Whether motor accidents insurer liable.
LEGISLATION CITED:	Motor Accidents Act 1988, ss. 3, 3B.
CASES CITED:	Allianz Australian Insurance Ltd. v. GSF Australia Pty. Ltd. (2003) NSWLR 321 Andar Transport Pty. Ltd. v. Brambles Ltd. [2004] HCA 28, 78 ALJR 907 Bankstown Foundry Pty. Ltd. v. Braistina (1986) 160 CLR 301 Blatch v. Archer (1774) 1 Cowp 63 (98 ER 969) Boral Roof Tiles Ltd. v. O'Brien, NSWCA, 15/12/94 Brodie v. Singleton Shire Council (2001) 206 CLR 512 Havas v. Standard Knitting Mills Pty. Ltd. (2001) 52 NSWLR 295 Shedlezki v. Bronte Bakery Pty. Limited (1970) 72 SR(NSW) 378 Stevens v. Brodribb Sawmilling Co. Pty. Ltd. (1986) 160 CLR 16 TNT Australia Pty. Ltd. v. Christie [2003] NSWCA 47 Zurich Australian Insurance Ltd. v. CSR Ltd. (2001) 52 NSWLR 193
PARTIES :	TNT Australia Pty. Ltd t/as TNT Automotive Logistics - appellant Gregory James Wills - first respondent G. & S. Wills Pty. Ltd. - second respondent Zurich Australia Insurance Ltd. - third respondent
FILE NUMBER(S):	CA 41009/03
COUNSEL:	Mr. M. Holmes QC with Mr. G. Parker for appellant Mr. G. Reynolds SC with Mr. J. Anderson for 1st respondent Mr. R. McIlwaine SC with Mr. M. Robinson for 2nd respondent Mr. D. Feller SC for 3rd respondent
SOLICITORS:	Ebsworth & Ebsworth, Sydney for appellant Martin Bell & Co., Sydney for 1st respondent McCulloch & Buggy, Sydney for 2nd respondent Vardanega Roberts, Sydney for 3rd respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1437/00
LOWER COURT JUDICIAL OFFICER :	Coorey DCJ

CA 41009/03
DC 1437/97

HODGSON JA
PEARLMAN AJA
WINDEYER J

Monday 13 December 2004

TNT AUSTRALIA PTY. LTD. V. WILLS & ORS.

Judgment

1 HODGSON JA: On 24 October 2003, Coorey DCJ gave judgment in proceedings in which the first respondent (Mr. Wills or the plaintiff) sued the appellant (TNT) for damages for personal injuries, and in which TNT cross-claimed against the second respondent (GSW) and the third respondent (Zurich). The primary judge gave judgment for Mr. Wills against TNT for $449,528.03, and gave judgment for GSW and Zurich on the cross-claims.

2 TNT appealed from those decisions. Zurich put on a cross-appeal, on a basis that I will indicate.

CIRCUMSTANCES

3 Mr. Wills sustained injury on 9 July 1998 while attempting to unload motor cars from a trailer attached to a prime mover, at a depot operated by TNT in Southport, Queensland. The prime mover was registered QXZ 367 in New South Wales, was owned by GSW and was insured under a third party policy issued by Zurich pursuant to s.9 of the Motor Accidents Act 1988 (NSW). The trailer was registered TZY 623 in South Australia, and was owned by TNT; and it was supplied by TNT to GSW pursuant to contractual arrangements between them.

4 The arrangements between Mr. Wills, GSW and TNT had commenced in 1995, when Mr. Wills arranged with a Mr. Phyllis to purchase a prime mover and what Mr. Wills described as “a position in the yard”, meaning the right to contract with TNT to haul cars. From that time, Mr. Wills through his company GSW performed work transporting cars exclusively for TNT.

5 TNT required its drivers to conduct business through a corporate entity, and so on 9 November 1995 Mr. Wills caused GSW to be incorporated, this being a company of which Mr. Wills and his wife were directors and shareholders. As part of the arrangement, GSW took out workers compensation insurance to cover its employees, including Mr. Wills; and GSW maintained the prime mover and paid expenses associated with the carriage of cars. TNT paid GSW an amount per kilometre travel.

6 TNT supplied and maintained the trailer to be used in the haulage of cars. It was common ground that the relations between Mr. Wills, GSW and TNT were subject to a contract determination by the Industrial Relations Commission of NSW, namely the Transport Industry – Car Carriers (NSW) Contract Determination. Under that Determination, the “Contract Carrier” (probably GSW rather than Mr. Wills) was made “responsible for the safe loading of the vehicle and securing and proper weather protection of the load, provided that such is facilitated by the equipment supplied by the Principal Contractor” (that is, TNT). The “Principal Contractor” was to “bear the cost of fitting up the trailer and associated equipment”, such work to be carried out by the Principal Contractor or an outside contractor nominated by it. The Principal Contractor was also required to “maintain the trailer and associated equipment in a reasonable and workable state of repair as required by the Department of Motor Transport”.

7 The trailer originally supplied when Mr. Wills first began transporting cars for TNT had split ramps for loading cars onto it: that is, each of two ramps was itself divided into two parts. However, subsequently that was replaced with a trailer that had two steel ramps, each of which weighed 54 kilograms and slid into a well in the trailer. When the ramps were to be used, the driver would drag each ramp from the well, lower one end to the ground and fix the other end in position; and when the use was over, the driver would need to lift the end from the ground and push the ramp back into the well. To release the ramps in order to remove them from the well, it was necessary to release a hinged plate by taking out a split pin; and when the end of a ramp was on the ground, the other end had to be moved onto a bracket or guide, and a pin put in to hold it. These manoeuvres required the driver to lower, drag and lift a weight of about 27 kilograms.

8 In about mid-1997, GSW purchased a later model prime mover, to replace the one originally purchased from Mr. Phyllis.

9 On the occasion of the accident, Mr. Wills had driven to the Southport depot to unload some cars. He positioned the left-hand ramp and put the pin in, and then swung around to get the other ramp; and as his foot hit the ground he felt severe pain in his back and collapsed. Mr. Wills described his movement as a 45 degrees turn and a six inch step; and he said his hand was on the last rung of the second ramp when he fell.

10 As a result, Mr. Wills suffered a disc rupture at the L5/S1 level, with serious consequences for him.

11 He brought proceedings against TNT, alleging a breach of duty of care to him. TNT cross-claimed against GSW, as Mr. Wills’ employer, seeking contribution or indemnity; and also against Zurich, as insurer of the prime mover, seeking indemnity under the policy of insurance.

DECISION OF PRIMARY JUDGE

12 The primary judge accepted Mr. Wills’ submissions that TNT occupied a position analogous to that of an employer, and had a duty to ensure that the trailer was safe and suitable for loading, transporting and unloading vehicles; and that TNT failed to provide suitable equipment and failed to instruct Mr. Wills in handling and lifting the ramps.

13 He held that there was a very real and foreseeable risk of injury, referring to the National Code of Practice stating that the risk of back injury increases significantly when weights greater than 16-20kgs are lifted from a standing position, and to expert opinions that the lifting of the ramps may involve increased risk of back injury.

14 He accepted Mr. Wills’ submission that there were practical alternatives to the steel ramps, referring to evidence concerning hydraulic ramps, aluminium ramps and split ramps; and also noting that the fact that TNT had commenced using hydraulic ramp trailers was some evidence that the cost of such trailers was not unreasonable.

15 He also found that there was a need for instructions, and that instructions were never given to Mr. Wills.

16 He accepted the evidence of Dr. Bleasel, a neurosurgeon, that “the lifting and crouching would have raised the pressure in the disc and then the simple twisting was just the last straw and it caused the rupture”. Accordingly, he held that TNT’s negligence caused the injury.

17 The primary judge was not satisfied that contributory negligence was established.

18 He assessed general damages at $100,000.00 plus interest at $5,000.00. He assessed past economic loss at $104,918.80 and the Fox v. Wood component at $26,229.70. He assessed future economic loss at $120,000.00. Past out-of-pocket expenses were agreed at $51,418.79. He assessed future out-of-pocket expenses at $30,000.00 and superannuation on past loss at $11,960.74.

19 The primary judge then considered the cross-claims.

20 He noted submissions of GSW that it had no input into the system of work, and that Mr. Wills worked in a system provided by TNT; and he said that this was supported by Shedlezki v. Bronte Bakery Pty. Limited (1970) 72 SR(NSW) 378. Accordingly, he gave judgment for GSW on this cross-claim.

21 As regards Zurich, he found that the injury resulted from an unsafe system of work and had nothing to do with a defect in the vehicle; and held that there was no motor accident, so the policy was not engaged. Accordingly, he gave judgment for Zurich on this cross-claim.

GROUNDS OF APPEAL

22 TNT relies on the following grounds:

Appeal from Decision in Primary Action
GROUNDS
1. His Honour erred in finding that the Defendant owed the plaintiff a duty of care analogous to that owed by an employer.
2. His Honour erred in finding the Defendant owed the plaintiff duties to ensure:
2.1 The trailer was safe and suitable for loading, transporting and unloading vehicles.
2.2 The plaintiff was provided with suitable equipment.
2.3 That equipment provided to the plaintiff was inspected against reasonably detectable risks of failure or deterioration.
2.4 The plaintiff was instructed in relation to handling and lifting.

3. His Honour erred in finding that the defendant breached its duty of care by failing to provide suitable equipment and failing to instruct the plaintiff in relation to the handling and lifting.
4. His Honour erred in finding that there was a reasonably foreseeable risk of injury.
5. His Honour erred in finding that the failure to instruct the plaintiff was causally relevant to the injuries sustained by the plaintiff.
6. His Honour erred in concluding that the trailer was not suitable equipment and/or that it had not been appropriately inspected, repaired and maintained.
7. His Honour erred in concluding that the suggested alternative systems were available in fact or were reasonably capable of being implemented by the defendant and in concluding that any such alternative system would have prevented the injury to the plaintiff.
8. His Honour erred in finding that there was a negligent failure on the part of the defendant to eliminate the risk of injury.
9. His Honour erred in admitting into evidence of the opinions of Messrs Tozer and Hampel when neither witness was adequately qualified by training, study or experience to give such opinion evidence.
10. His Honour erred in not permitting Mr Emslie to give evidence as to his experience and knowledge of the use of the equipment internationally.
11. His Honour erred in relying upon the National code of practice as to lifting.
12. His Honour failed to provide adequate reasons for the decision.
13. His Honour erred in concluding that the plaintiffs past and future economic loss should be assessed in the sum of $224,918.80.

Appeal from the Decision on the First Cross-Claim
GROUNDS
14. His Honour erred in concluding that insofar as the First Cross Defendant (G&S Wills Pty Ltd) "had no input into the system of work" it was not liable as a joint tortfeasor.
15. His Honour erred in finding that the plaintiff was accepted by the defendant as a driver.
16. His Honour erred in failing to attach significance to the employment of the plaintiff by the incorporated subcontractor the First Defendant.
17. His Honour erred in finding that the plaintiff worked in a system provided by the defendant.
18. His Honour failed to provide adequate reasons for the decision.

Appeal from the decision on the Second Cross Claim
GROUNDS
19. His Honour erred in finding that because the injury arose out of an unsafe system of work it did not occur in circumstances involving a "motor accident” within the terms of the policy of insurance in favour of G&S Wills Pty Limited and attaching to the trailer.
20. His Honour erred in that he found the ramps fitted to the trailer to be too heavy to be lifted manually but failed to find that he (sic) plaintiff's injury was the result of and wad (sic) caused during the use of operation of the trailer by a defect in the trailer.
21. His Honour erred in failing to provide adequate reasons for the decision.

23 Zurich relies on the following grounds in its Notice of Contention:

1. His Honour should have held that the Appellant was not the relevant insured owner of trailer Registration No. TZY 623 for the purposes of the third-party policy issued by the Third Respondent to the Second Respondent in respect of prime mover Registration No. QXZ 367 to which the trailer was attached at the time of the First Respondent's injury.
2. His Honour should have held that the Second Respondent was lawfully in possession of the trailer and as such was entitled to immediate possession of the trailer and accordingly pursuant to s. 3 (3) of the Motor Accidents Act, 1999 was the owner of the trailer for the purposes of the third-party policy issued by the Third Respondent.
3. His Honour should have held that only the Second Respondent, which was the registered owner of the said prime mover and as such was the named insured under the third-party policy issued by the Third Respondent in respect of the prime mover was the relevant insured in respect of the trailer pursuant to the operation of sections 3B and 9 of the Motor Accidents Act, 1999 and the terms of the third-party policy.
4. His Honour should have held that in the event that the First Respondent's injury occurred in circumstances involving a "motor accident" within the meaning of section 3 of the Motor Accidents Act, 1999, he had not complied with the provisions of sections 42(1), 43(2), 50A and 52(1A) of the Act and was not entitled to commence or maintain the proceedings against the Appellant and in the premises the Appellant was not entitled to recover indemnity under the third-party policy from the Third Respondent.

24 Zurich also put on a cross-appeal, in effect relying on the matter in ground 4 in its Notice of Contention, and claiming that this meant that Mr. Wills was not entitled to commence or institute proceedings against TNT, and that this was so notwithstanding that the accident occurred in Queensland.

25 I will consider in turn the following issues: liability of TNT; liability of GSW; liability of Zurich; and damages.

LIABILITY OF TNT
Submissions

26 It was submitted for TNT that the primary judge was in error in finding that TNT owed a duty of care to Mr. Wills analogous to that of an employer. GSW was an independent business, and Mr. Wills was not part of TNT’s establishment and was not subject to direction or control by TNT. This case was wholly different from TNT Australia Pty. Ltd. v. Christie [2003] NSWCA 47, where the employer was a labour hire company and the employee worked at the premises of the hirer, used only equipment of the hirer and was subject to direction and control by supervisors employed by the hirer. If TNT had a duty of care to Mr. Wills, it was a much more limited duty, to use reasonable care to avoid unnecessary risks of injury and minimise other risks of injury: Stevens v. Brodribb Sawmilling Co. Pty. Ltd. (1986) 160 CLR 16 at 47; Boral Roof Tiles Ltd. v. O’Brien NSWCA 15/12/94.

27 Next, it was submitted that there was no breach of any duty to instruct Mr. Wills in handling the ramps; and this was conceded before this Court by Mr. Wills.

28 On the question whether the trailer and ramps were suitable, it was submitted that the primary judge had failed to give reasons for finding that they were not, and in particular had not addressed the balancing exercise required by Wyong Shire Council v. Shirt (1981) 146 CLR 40 at 47-48; that the National Code of Practice only made recommendations; that the expert evidence did not show that a lift of 27 kilograms was excessive for a male industrial worker; that steel ramps were used widely in the car-carrying industry; that no other injury was known to Mr. Emslie, TNT’s National Employment Manager since 1995; that the existence of practical alternatives to steel ramps was not established; and that the primary judge erred in admitting evidence of Mr. Wills’ experts Mr. Tozer and Mr. Hampel.

29 For Mr. Wills, Mr. Reynolds SC submitted that TNT had a duty to supply a trailer and equipment that would facilitate safe loading, or at least a duty to exercise reasonable care in that respect. However, he accepted that the primary judge’s reasoning dealing with the breach of this duty was too exiguous to sustain the finding, while submitting that the conclusion was correct. He then proceeded to address this question.

30 He submitted that the risk was large involving potentially serious back injury; and that the likelihood of injury was substantial. He pointed to evidence that the risk of back injury increases as weight lifted exceeds 16-20 kilograms. He submitted that evidence concerning no other injury was very limited, referring to Bankstown Foundry Pty. Ltd. v. Braistina (1986) 160 CLR 301. He submitted that TNT had led no evidence of significant enquiries concerning this matter, or evidence from anyone with extensive experience, which TNT could have led, referring to Blatch v. Archer (1774) 1 Cowp 63 at 65 (98 ER 969 at 970). He submitted that, if TNT wished to say that alternatives were unsatisfactory, the evidentiary burden of showing this lay on it: Brodie v. Singleton Shire Council (2001) 206 CLR 512 at [180].

31 Mr. Reynolds submitted that the risk would have been eliminated or minimised by each of the alternatives. The split system was plainly available, and its cost was not prohibitive, and meant that the weight being lifted was about one-half that which the respondent had to lift. Aluminium ramps were shown to be available, lighter, and not involving any significant difficulty or expense. Hydraulic ramps were actually being introduced by TNT, so were not prohibitively expensive.

Decision

32 I accept TNT’s submission that it was not in the position of an employer, and that this case is distinguishable from Christie on the basis suggested on TNT’s behalf. However, in my opinion TNT did have a duty to take reasonable care to avoid causing injury to Mr. Wills through the supply of an unsuitable trailer or, to put this another way, a duty to take reasonable care not to supply a trailer which was such that its use would involve unreasonable risk of injury.

33 In my opinion, as conceded by Mr. Reynolds, the question of breach of this duty was not adequately addressed by the primary judge, and the reasons given for the decision that TNT breached its duty of care were inadequate. In those circumstances, this Court should either decide the question itself, or send the matter back for decision to the District Court. In my opinion, it is appropriate for this Court to decide the question itself: there is no substantial question of credibility of oral evidence that needs to be addressed.

34 I turn next to the question of whether evidence from Mr. Wills’ experts, Messrs. Tozer and Hampel, should have been admitted.

35 Mr. Tozer was an engineer with expertise in materials handling, including heavy lifting, and associated health and safety issues. In my opinion, his expertise extended to noting and endorsing the National Code of Practice (NCP) and also the recommendation of various authors of a maximum weight of lift for male industrial workers of 27 kilograms for two-handed symmetrical lifting. In my opinion, his expertise also enabled him to give an opinion as to operational advantages of alternatives to the steel ramps. However, it did not give him expertise to comment on the practicability of the alternatives, much less the responsibility of TNT. Those parts of the report should have been excluded; although it does not appear that the primary judge gave any significant weight to them.

36 As regards Mr. Hempel, he had substantial experience in mechanical engineering and in connection with safety in the operation of systems. In my opinion, the evidence that he gave was within his expertise, although it was such as to be of little relevance or weight.

37 TNT also challenged the rejection of certain evidence by its witness Mr. Emslie, as to overseas practice. It is not necessary to decide whether or not this should have been admitted. In my opinion, it had some relevance, but its relevance might have been considered so slight as to justify rejection under s.135 of the Evidence Act.

38 Turning now to the substantive questions concerning breach of duty by TNT, there was uncontradicted evidence that the trailer in question was purchased by TNT, having been constructed in 1982 by Formac with the steel ramps in place. The uncontradicted evidence was that in 1998, TNT had a fleet of 190 car carriers, all using steel ramps. There was no evidence of aluminium ramps being used by any car carrying trailers, either by TNT itself or by either of its major competitors, Finnemores and TDG. Although there was some suggestion that hydraulic ramps had become available at the time of the accident, this was vague and the more substantial evidence was that commercial production of trailers with hydraulic ramps had commenced in 1999. (Although the primary judge was correct in saying that there was evidence that hydraulic ramps were developed in 1992, it seems clear that they did not become available until at least 1998.) Mr. Emslie gave evidence that he was unaware of any problems in handling the steel ramps, that no-one had complained, and that he was unaware of any prior injuries. I note that even in Braistina, the High Court accepted that the more slender evidence in that case carried some weight. Thus, there was no evidence that the trailer in this case departed from industry practice. This of course is not conclusive against breach of duty, but it points up a need for a substantial basis on which to say that the industry practice was defective, and that TNT should have recognised it as defective by 1998.

39 The primary judge did not find, and the evidence did not justify, a conclusion that occasional lifting of weights of 27 kilograms was an unreasonable risk.

40 The suggested alternatives were not shown to be so advantageous and readily available that it was unreasonable not to have adopted them, particularly where this would be a departure from the industry-wide practice, as it appeared in the evidence.

41 As regards the alternative of hydraulically operated ramps, there was no satisfactory evidence that these were available before the accident. In any event, it would be unreasonable to expect TNT to replace its fleet of 190 trailers with new hydraulic trailers, each costing about $80,000.00 in 1998. The evidence was to the effect that it was not practicable to fit hydraulically operated ramps to existing trailers, and plainly this would be a difficult and expensive exercise.

42 As regards split ramps, Mr. Wills, who had used both, believed that the use of split ramps involved more bending and was more time-consuming; and he said also that it sometimes was dangerous, because the operator had to be at the side of the trailer and, if it was on the highway, taking up four feet of the road, to get the split ramps into their guides; and he said that although these ramps were lighter, they had to be handled more. In my opinion, it would be impossible on that material to find that it was unreasonable to use the ordinary steel ramps rather than the split ramps.

43 As regards aluminium ramps, there was no satisfactory evidence that anyone in the car carrying business used them, and the tendency of the evidence was to the contrary. Mr. Mackinlay, an expert engineer who gave evidence for TNT, had been involved in a company which produced aluminium semi-trailers, and then stopped producing them. He said there were disadvantages in the use of aluminium in relation to weldability (apparently involving difficulty in repairs), deflection, susceptibility to fatigue and sudden fractures. It was also clear that if aluminium ramps were to be used in a well, as were the steel ramps, this would require substantial re-building of the trailer because the aluminium ramps had a bigger section for the same strength. The practicability of modifying the trailers in this way was not shown. If the ramps were not stored in a well for operation in the same manner as the steel ramps, then substantial man-handling of the whole weight of the ramps would be required.

44 Having regard to all these considerations, in my opinion it is plain that a breach of duty by TNT was not established by the evidence in this case.

45 This means that the following orders should be made:

1. Appeal allowed against Mr. Wills.
2. Mr. Wills to pay TNT’s costs of the appeal, and to have a Suitors Fund certificate if otherwise eligible.
3. Judgment in the proceedings for TNT against Mr. Wills, with Mr. Wills to pay TNT’s costs of the proceedings on the statement of claim.
4. TNT’s appeal against GSW and Zurich dismissed with costs.
5. Zurich’s cross-appeal dismissed with costs.

46 In case I am wrong in this view, I will briefly consider the other issues.

LIABILITY OF GSW

47 In my opinion, if TNT is liable, then GSW as Mr. Wills’ employer would, if sued, also have been liable; and therefore TNT would have been entitled to contribution.

48 The circumstance that Mr. Wills was the directing mind of GSW would not affect this: Andar Transport Pty. Ltd. v. Brambles Ltd. [2004] HCA 28, 78 ALJR 907, in which the dissenting judgment of Mason JA in Shedlezky was preferred to that of the majority.

49 Mr. McIlwaine submitted that the relevant apportionment and contribution legislation was the Queensland legislation, but could point to no relevant difference; so in my opinion this does not affect the matter.

50 He also submitted that the case would have been conducted differently below if Andar had been decided. However, the issue of GSW’s liability was squarely raised, and the respective responsibility of Mr. Wills and TNT for the accident was a live issue throughout. In my opinion, GSW has no Suttor v. Gundowda point.

51 In my opinion, if TNT had been liable, it would have been appropriate to order 50% contribution from GSW.

LIABILITY OF ZURICH

52 If TNT had been liable, a question arises whether TNT has any entitlement under the policy issued by Zurich; and this in turn raises the question whether Mr. Wills’ claim fell under the Motor Accidents Act 1988 (the Act).

53 It was argued by TNT that, if TNT was liable, Mr. Wills’ injury would have been caused by the fault of TNT as owner of the trailer in the use or operation of the trailer, and it was a result of and caused during such use or operation by a defect in the vehicle. Thus, Mr. Wills’ injury was an injury within the definition in s.3 of the Act: Zurich Australian Insurance Ltd. v. CSR Ltd. (2001) 52 NSWLR 193, Allianz Australian Insurance Ltd. v. GSF Australia Pty. Ltd. (2003) 57 NSWLR 321.

54 In my opinion this is not so. Any fault of TNT would not have been in the use or operation of the vehicle, as it might have been if TNT had been Mr. Wills’ employer, but only in the supply of it. In any event, in my opinion TNT was not the owner within the meaning of the Act, because it had ceased to have possession: s.3(3), Havas v. Standard Knitting Mills Pty. Ltd. (2001) 52 NSWLR 295. GSW’s possession was not by way of hiring or lending for a period not exceeding three months (s.3(4) of the Act), nor in my opinion was it as TNT’s agent. Also, in my opinion TNT was not immediately entitled to possession because it could not retrieve the trailer from GSW at least without some notice.

55 Furthermore, Zurich’s policy insured only the owner of the motor vehicle to which the policy relates (that is, GSW as owner of the prime mover) and any other person who drove it. Section 3B of the Act provides as follows:

3B Special provision for trailers
A reference in this Act to the use or operation of a motor vehicle extends, in the case of a motor vehicle that is not a trailer, to include the use or operation of a trailer attached to the motor vehicle and a trailer running out of control having become detached from the motor vehicle towing it.

56 In my opinion, this is insufficient to extend the indemnity beyond the owner or driver of the prime mover to a separate owner of the trailer.

57 For all these reasons, in my opinion the case does not come under the Motor Accidents Act, and it is unnecessary to consider whether there is any constitutional impediment to the Act applying to an injury that took place in Queensland.

DAMAGES
I would accept the submission for TNT that the material before the primary judge did not justify $104,918.80 for past economic loss, but only $83,668.00. Thus a reduction of damages of $20,250.80 would have been appropriate. As regards future economic loss, although the reasons are inadequate the result, in my opinion, is appropriate, so that appellate intervention would not have been required.

CONCLUSION

58 For those reasons, in my opinion the following orders should be made:

1. Appeal allowed against Mr. Wills.
2. Mr. Wills to pay TNT’s costs of the appeal, and to have a Suitors Fund certificate if otherwise eligible.
3. Judgment in the proceedings for TNT against Mr. Wills, with Mr. Wills to pay TNT’s costs of the proceedings on the statement of claim.
4. TNT’s appeal against GSW and Zurich dismissed with costs.
5. Zurich’s cross-appeal dismissed with costs.

59 PEARLMAN AJA: I agree with Hodgson JA.

60 WINDEYER J: I agree with the conclusions reached by Hodgson JA and his reasons other than paragraphs 34 to 36. It was accepted car carriers require ramps. Any expert evidence to be of use would have to address not only dangers in the system used, but the availability and suitability of alternative systems. Neither expert was qualified for the latter task. I do not consider Mr. Hampel qualified for the former and I doubt if Mr. Toyer was. However, as I agree with the plaintiff’s claim against TNT would fail whether or not the evidence was admitted in whole or in part it is not necessary to go into this further.

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Last Modified: 12/15/2004