Transport Accident Commission v Woods
[2003] VSCA 57
•10 April 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 6051 of 1999
| TRANSPORT ACCIDENT COMMISSION | |
| Appellant | |
| v. | |
| KEITH WOODS | Respondent |
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JUDGES: | PHILLIPS, BUCHANAN and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 April 2003 | |
DATE OF JUDGMENT: | 10 April 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 57 | |
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Accident compensation - Transport accident - Liability of owner of motor vehicle to pay transport accident charge - Liability to pay charge not limited to time during which vehicle is used on highway or in a public place - Transport Accident Act 1986, ss.94, 97, 109.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr. D.F.R. Beach S.C. with Mr. D. Masel | McCabes |
| For the Respondent | Mr. P.G. Priest Q.C. with Ms S. Hinchey | Middletons Moore & Bevins |
PHILLIPS, J.A.:
I will ask Buchanan, J.A. to deliver the first judgment .
BUCHANAN, J.A.:
The respondent, a farmer who also ran a business selling agricultural machinery, owned a tractor equipped with a crane. The tractor was principally used to deliver machinery and equipment to the customers of the business.
On 17 March 1992 the tractor was driven to the farm of a neighbour, one Davies, and the crane on the tractor used to erect grain silos. In the course of this work, and while the respondent was driving the tractor and working the crane, the arm of the crane or the silo held by the crane, touched an overhead power line and Davies suffered an electric shock from the transferred current.
Davies sued the respondent in negligence claiming damages for his injuries. After a trial Davies was awarded damages and later obtained judgment against the appellant ("the Commission") pursuant to s.97(1) of the Transport Accident Act 1986 ("the Act"), which provided that where
"judgment against the owner ... of a motor vehicle in respect of which the indemnity under s.94 was not in force by reason of sub-s.(2) of that section has been entered in respect of the ... injury to any person arising out of the use of that motor vehicle ... the judgment creditor may obtain judgment against the Commission ... "
Section 97 was repealed in 1994, but the parties have proceeded on the basis that the section is still capable of determining their rights and obligations.
Section 94(1) of the Act provided that the Commission was liable to indemnify the owner of a "registered motor vehicle" in respect of liability for injury caused by or arising out of the use of the vehicle. Sub-section (2) provided that sub-s.(1) did not apply "in respect of any period in respect of which the transport accident charge applicable to the motor vehicle has not been paid ...".
Prior to the accident the tractor had been registered for several years. The respondent had last paid the registration fee and transport accident charge for the tractor in respect of the period of 12 months which ended on 31 August 1991. The tractor was, therefore, unregistered at the time of the accident. Nonetheless, it was still a "registered motor vehicle" for the purposes of s.94, by virtue of the definition of that term in s.3. In short, although it was "not registered in accordance with the Road Safety Act 1986" it was "usually kept in Victoria and was not exempt from registration in accordance with Part 2 of the Road Safety Act 1986 or the regulations made under that Act".[1]
[1]See Transport Accident Commission v. Odney [1998] 1 V.R at 278 at 281 -2 per Charles, J.A.
The obligation to pay the transport accident charge was imposed by s.109 of the Act, which provided:
"(1)The owner of a registered motor vehicle must in respect of each prescribed period pay to the Commission the transport accident charge applicable to that motor vehicle for that period."
Failure to comply with s.109(1) does not expose the owner of a registered motor vehicle to a penalty, but does deny him the indemnity provided by s.94(1).
The "prescribed period" for present purposes was the period of 12 months commencing on the date, or the anniversary of the date, of the registration of the tractor, namely, 31 August 1991. See s.109(5).
An application for registration or renewal of the registration of a motor vehicle was to be accompanied by a registration fee and evidence that the transport accident charge had been paid (see regulations 202 and 207 of the Road Safety (Vehicles) Regulations 1988).
This proceeding has been brought by the Commission to recover from the respondent the sum which it paid pursuant to the judgment obtained by Davies. Section 97(3) of the Act provided that the Commission might recover a sum paid pursuant to s.97(1) from the owner of the motor vehicle but
"(a)it is good defence in any action against the owner of a motor vehicle if he or she establishes to the satisfaction of the court that the fact that the indemnity was not in force in respect of the motor vehicle ... was not due to his or her own default."
The trial was held before a judge in the County Court who found that the respondent had not received a notice from the Commission inviting him to renew the registration of the tractor. His Honour held that in the absence of a renewal notice the failure to pay the transport accident charge, and thereby ensure that the indemnity was in force, was not due to the respondent's default, as "default" in sub-s.(3) meant "failing to do something which he should have done due to an oversight for which he should be held responsible ... ". Accordingly, his Honour dismissed the proceeding.
At the hearing of this appeal counsel for the respondent conceded that the decision of the County Court judge could not be sustained on the basis that because the respondent had not received a renewal notice there was no "default" within the meaning of s.97(3).
Counsel for the respondent contended that the dismissal of the proceeding could be upheld on a different basis. Although the notice of contention to that effect was filed late - in fact it was filed only the day before the hearing - and the appellant objected accordingly, we chose to hear argument before the ruling on the objection.
The respondent's counsel submitted that the Commission was obliged to indemnify the respondent in respect of his liability to Davies. In those circumstances Davies' judgment against the Commission could only have arisen under s.94(3) of the Act, which entitles an injured person to recover directly from the Commission an unpaid judgment against the owner where the Commission is obliged to indemnify the owner. Naturally enough, there is no provision for the recovery from the owner of a payment by the Commission under s.94(3).
Counsel for the respondent pointed out that the Road Safety Act 1986 defined "motor vehicle" as "a vehicle used or intended to be used on a highway or in a public place ..." and Part 2, which dealt with registration, applied only to motor vehicles "which are used or intended to be used on a highway" (s.6). So, counsel submitted, the transport accident charge is only applicable at the time when the motor vehicle is being used on that highway, and as the accident occurred on private land, no transport accident charge was applicable and thus s.94(2) did not preclude the Commission's obligation to indemnify the respondent under s.94(1).
In my opinion, the submission founders upon the plain meaning of s.109 of the Act. The requirement to pay the transport accident charge is not limited to the time during which the motor vehicle is used on the highway or on public land. The obligation of the owner of a motor vehicle used or intended to be used on the highway or on public land is to pay the transport accident charge for the prescribed period, which is not limited to the time that the motor vehicle spends on the highway or on public land.
Such an obligation fits the scheme of the Act. The rights and obligations which the Act regulates are tied, not to accidents that take place on highways or public land, but to accidents occurring anywhere, whether on public or private land, directly caused by the driving of a vehicle which is used or intended to be used on a highway or in a public place. See the definition of "transport accident" in s.3 of the Act and the definition of "motor vehicle" in s.3 of the Road Safety Act, which has been incorporated in the Act. A consequence of the respondent's construction of the Act is that if the transport accident charge is applicable to a motor vehicle but is not paid, the indemnity provided by s.94(1) of the Act comes and goes as the vehicle passes between private and public land.
According to the summary of facts supplied by the parties the respondent's tractor was used to deliver machinery and equipment to the respondent's customers and was driven to Davies' farm on the day of the accident. The respondent conceded that this use involved the tractor being driven on public roads. Accordingly, the tractor was required to be registered and the transport accident charge imposed by
s.109 of the Act was applicable to it.
In my opinion, the decision of the County Court judge cannot be sustained on the only ground relied on by the respondent. As that is the ground which the respondent seeks to rely upon by mean of its late filed note of contention, I would refuse the respondent leave to rely upon that notice and allow the appeal.
PHILLIPS, J.A.:
I agree.
CHERNOV, J.A.:
I also agree
PHILLIPS, J.A.:
Would counsel like to suggest the orders then to be made?
(Discussion ensued.)
The Court has delivered judgment and has now heard discussion with counsel about the form of the orders to be made. In an effort to save further costs the appellant proposes that orders be made in lieu which encompass the claim made in the pleadings for judgment and costs - which, we are told, means judgment should be given in the sum of $274,536 with costs.
If such a judgment were given the appellant does not seek any further sum by way of interest, notwithstanding that the interest would otherwise have to be calculated over a period of some four and a half years.
Through no fault of his own, counsel for the respondent is not able either to consent or, as I understand him, to oppose that course, although for his part, as we apprehend it, he sees the advantage to his client in what is offered.
It is therefore desirable to allow him the opportunity of seeking instructions and, in view of that, we propose first to give judgment as sought, but secondly to direct that the order not be authenticated for seven days, to allow the respondent the opportunity of coming back to this Court promptly, and I emphasise promptly, if he seeks to have some other order made than that which is now proposed.
I emphasize that if any application is to be made for some other order it must be made before the order is authenticated.
On that basis the Court makes the following orders:
1.Leave to the respondent to rely upon the notice of contention filed on 7 April 2003 is refused.
2. The appeal is allowed with costs.
3.The order made in the County Court on 22 June 1999 is set aside and in lieu it is ordered as follows:
1.That there be judgment for the plaintiff Commission in the sum of $274,536.
2.That the defendant pay the plaintiff's costs of the proceeding, to be fixed on scale D.
4.That this order not be authenticated before 21 April 2003.
The Court grants the respondent a certificate under the Appeal Costs Act 1998.
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