Victorian WorkCover Authority v Foursquare Construction Management Pty Ltd (Ruling)

[2021] VCC 2080

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-18-00878

VICTORIAN WORKCOVER AUTHORITY	Plaintiff
v
FOURSQUARE CONSTRUCTION MANAGEMENT PTY LTD (ACN 146 607 847)	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	2 December 2021
DATE OF RULING:	17 December 2021
CASE MAY BE CITED AS:	Victorian WorkCover Authority v Foursquare Construction Management Pty Ltd (Ruling)
MEDIUM NEUTRAL CITATION:	[2021] VCC 2080

RULING
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Subject:TRANSPORT ACCIDENT

Catchwords:              Definition of “transport accident”

Legislation Cited:      Transport Accident Act 1986, s3

Cases Cited:Victorian WorkCover Authority v Jones Lang Lasalle (Vic) Pty Limited [2012] VSC 412; Transport Accident Commission v Treloar & Ors [1992] 1 VR 447; Insurance Commission of Western Australia v Container Handlers Pty Ltd & Ors (2004) 218 CLR 89; Zengin v Insurance Commission of Western Australia [2020] VSC 237; Transport Accident Commission v Iacuone [1998] VSC 192

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Murdoch QC with Mr S Martin	Wisewould Mahony
For the Defendant	Mr J Ruskin QC with Mr B Jellis	Wotton + Kearney Pty Ltd

HER HONOUR:

Introduction

1It is not in dispute that on 25 April 2016 (“the said date”), Brendan MacDonald, during the course of his employment with D C Bin Hire (“the employer”) as a bin delivery driver, suffered injury at Peninsula Homemaker Centre Mornington, a site managed by the defendant company which hired construction waste bins from the employer.

2As a consequence of the injury, the plaintiff paid statutory benefits to Mr McDonald. The plaintiff then commenced the present proceeding seeking recovery of those amounts from the defendant.

3In its Defence, the defendant denied the plaintiff was obliged to pay benefits to Mr MacDonald on the ground that the injury was the result of a transport accident within the meaning of s3 of the Transport Accident Act 1986 (Vic) (“the Act”).

4Section 3(1) of the Act defines “transport accident” as being an incident directly caused by the driving of a motorcar or motor vehicle.

5The sole issue for determination in this preliminary hearing is whether the incident giving rise to Mr MacDonald’s injury is a “transport accident” within the meaning of the Act. This is denied by the plaintiff.

6If the injury was the result of a transport accident, the plaintiff is not entitled to recovery from the defendant as it can only recover compensation payments arising under and paid pursuant to the provisions of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”).[1] 

[1]Victorian WorkCover Authority v Jones Lang Lasalle (Vic) Pty Limited 2012] VSC 412 at paragraphs [57]-[59] and paragraph [69]

The evidence

7Mr MacDonald swore three affidavits, dated 16 November, 29 November and 1 December 2021.  He was cross-examined.

8Damien Stewart, the defendant’s project manager at the site on the said date, swore an affidavit on 16 November 2021, exhibiting a statement made by him on 14 November 2017 in relation to the incident.  He was also cross-examined. 

Circumstances of injury

9By the said date, the site project was about three-quarters finished and the defendant still had chainmesh perimeter fencing around the Aldi site, and around the satellite building site. The incident occurred inside the Aldi compound.  The perimeter fencing for the site extended along the east and partially along the north and south sides of the building.  The bin for the Aldi site was positioned on the east side of the building extension, as that way the bin was easily accessible by the D C Bin Hire truck which could be reversed into the compound and backed up to the bin.[2]

[2]Mr Stewart’s statement dated 14 November 2017

10On the said date, there were sheets of reinforced steel mesh (“the mesh”) stacked on top of each other and lying on the ground inside the fenced compound on the west side of the double gates – placed there by civil paving contractors some time earlier that day, who were doing paving work on the east side of the compound. The steel mesh sheets were standard size and measured about 6 metres by 3 metres by a few centimetres in thickness.[3]

[3]        Mr Stewart’s statement

Mr MacDonald’s evidence

11He was attending the site to drop off a bin at the defendant’s request.  Delivery docket 1185 confirmed a drop off on the said date.  Under “Name”, was written 1.20pm and under “Time”, Brendan.  There was a tick in the drop-off box.  The pick-up box was blank.[4]

[4]        Exhibit 1

12On arriving at the site, he was directed to place the bin near a building.  There were building materials on the ground, including steel mesh, limiting his access.

13Before placing the bin on the ground, he had to make sure the corner of the bin was not too close to the wall.  While there was a reverse camara in the truck, he still had to get out of the vehicle to make that assessment.

14He agreed it was absolutely essential on the part of the driver delivering the bin to get out and check he had his truck in the right position for placing of the bin.  He agreed the place for delivery was unsafe, as it turned out, because as he left his truck to check that place, he ended up tripping on the mesh.[5] 

[5]T16

15When he reversed the truck over the mesh, he was worried the rear tyres might get a puncture.  The truck’s front steer wheels were not on the mesh, they were clear of it.  They were on the dirt and not on the mesh because he was really concerned reversing over the mesh that he could puncture his tyres.  As he did not want to puncture his tyres, he was being very careful.   He can remember everything that happened.[6]  The boss “would go off at them” about punctures.[7]

[6]T17

[7]T19

16Part of the truck had to go over the mesh in order to place the bins where he was required to do so.[8] 

[8]T15

17When he stopped the truck, he left the engine running and put the truck into park. The engine had to be running in order to operate the truck’s hydraulics which lowered the bin.[9] 

[9]T19

18He exited the truck backwards using the steps and stepped onto dirt.  He did not step directly onto the mesh.   He then took a few steps on the dirt towards the back of the truck before he got to the mesh.  He then stepped off the dirt and onto the mesh and took a few more steps – about five – and tripped on a smaller cut piece of mesh which he had not noticed.

19The mesh he walked across looked like very large pieces to walk on.  However, after taking about five steps on the mesh, when he was halfway down the side of the truck, he stood on what he later realised was a smaller piece of mesh which caught up in his right foot causing him to fall (“the incident”).[10]

[10]        Transcript (“T”) 20

20The site manager came from around the back of the truck as he was standing up off the mesh.[11]  He did not think the site manager could have seen him fall from where he came from.[12]

[11]16 November 2021 affidavit

[12]29 November 2021 affidavit

21If he had wanted to, he could have walked around the front of the truck and down the other side of the truck with a view to avoiding the mesh but this did not occur to him at the time, as walking down the driver’s side of the truck was the shortest route to get to the back of the truck.[13] 

[13]1 December 2021 affidavit

22He agreed that in his mind, he took a sensible, appropriate small journey out of the truck, across the front of it, down to the end of it to look where it was relative to the bin placement. It was safe so he was getting out, going across to have a look, hop back in, and see if he had to move it a bit forward or not to put down the bin.[14]  He had to be a lot more careful with the new wall being built.  So he kept the engine on, with the truck in park, because he was going out to have a look to see if he had to move it any further one way or another.[15] 

[14]T17

[15]T18

23Had he not fallen, he would have continued to execute his little journey as part of the delivery and then assess whether it was in the right position and, if not, move it.  That could not happen because he fell.[16]  He was concerned because of the mesh that the place where he placed the truck was unsafe, so it was essential he get to a position to check the bin when he fell.  He was concerned, because as far as he thought, it was an unsafe journey which ended up with him falling over.[17]

[16]T18

[17]T19

24He ended up moving the truck after the accident to unload the bin and then go back to work.  Effectively he had finished the job.[18]

[18]        T19

25He did look before he walked across.  It looked like they were all wide pieces that were together so he had no idea there was a smaller piece he was going across.  He was not concerned for his safety when he started walking as the mesh looked like it was wide, so he would just step across it and would not have a problem.  He did not know the measurements of the mesh, but the truck was “way longer than the mesh”.  The sheets were stacked in a pile and each sheet was made up of criss-crossed steel.  The mesh was probably a few feet high or so.  He had to take a step up to walk across it.[19] 

[19]T20

Mr Stewart’s evidence

26He thought Mr Macdonald reversed his truck over the mesh and actually stopped on it.   He walked over to tell Mr MacDonald to get off the mesh so it could be moved out of the way.[20]

[20]Statement dated 14 November 2017

27When he was about 5 to 6 metres away, he saw Mr MacDonald alight from the truck cabin and he had to negotiate two steps down.  The right front wheel of the truck was on the top of the steel mesh, so Mr MacDonald stepped onto the mesh.  He took a couple of steps on it and then fell, landing on his right knee.  He must have tripped or caught his foot on the mesh.  It did not seem to be a heavy fall.

28His memory of where the truck stopped was no better now than when he made his statement in 2017.[21]   When he could see Mr MacDonald had driven onto the mesh, he was a little bit longer than a truck length away – five or six metres away, “as an estimation”. He could see from where he was standing that the right front wheel of the truck was on the steel mesh.  His memory of that is not vivid at all now.[22]  He could see that Mr MacDonald took a couple of steps onto the mesh and then fell.  His memory now is not clear.[23]

[21]T28

[22]T29

[23]T30

29In cross-examination, Mr Stewart agreed that he gave his statement about eighteen months after the incident and he was not particularly asked regarding this case before that statement.  He did not complete an incident form at the time “because the – it was told to me that the incident wasn’t worthy of that”.[24]

[24]T31

30It was not possible the front of the truck was on dirt because there was no dirt – it was a concrete slab.  He believed the front wheel was on the mesh.  It is possible he is wrong, but his memory as at 2017 suggested otherwise.[25]

[25]T37

31When it was suggested there was no particular reason to look at whether the front wheels were on the mesh or not, he said it was only that Mr MacDonald was on the mesh that was his concern.  It was only a short stack; it would be under a hundred millimetres possibly, but he could not be sure.[26]

[26]T37

32His memory was at the time Mr MacDonald had stepped onto the mesh and was walking on it.  He took a number of steps towards Mr MacDonald.  He was not sure whether he saw Mr MacDonald step up a small step to get onto the mesh from where he started.  He agreed he would have had to take a small step to get onto it.  He believed that Mr MacDonald stepped onto the mesh straight away.  He agreed to get out of the truck,  Mr MacDonald came backwards down one or two steps.  He agreed that if he wanted to, Mr MacDonald could have walked around the front of the truck and gone down the left side, and there was plenty of room to do so.  He did not agree that if Mr MacDonald took that route, the accident could have been avoided, as he would have had to walk on the mesh both ways.[27]

[27]T39

33The mesh sheets were 6 x 3 metres.  The truck was maybe longer than six metres.  He did not know the distance between the rear wheels of the truck.[28]  He thought the mesh was running perpendicular so it would have been on the short side, the 3-metre side.  He agreed if the axles were longer than 3 metres, the front and rear wheels of the truck could not have been on the mesh at the same time.[29] 

[28]T39

[29]T40

34He would only assume he was waving to Mr MacDonald to get him off the mesh.  He did not want him to trip, plus the truck was on the mesh.[30]  He had put the word accident in inverted comas in his statement because “I had the view that at the time that there wasn’t much to report.  The only reason I did follow it up – after reflection in that afternoon – that possibly something was awry, so that – that’s why I emailed my OH&S manager and attempted the process.”[31]

[30]T40

[31]T41

Submissions

35Counsel for the defendant submitted the factual issues – whether the bin was full or empty and whether the wheels of the truck were precisely on the mesh or not  –    do not matter, although Mr Stewart’s evidence was to be preferred.[32]

[32]        T49

36The stopping of the truck on or adjacent to the mesh was a cause of the injury.  It was not a safe place for the truck to stop – illustrated by the injury to the driver.  He fell when he was still with the truck – only a couple or five steps after stepping out.

37The essential fact was that the plaintiff had driven to a point preparatory to delivering the bin and had not completed that journey when the injury occurred. The essential point is that the place where the truck was positioned with its engine still on was unsafe.  That was of significance because the driving, while it was placed in ‘park’, had not been completed.  The engine being on, was inextricably linked with the driving process.[33]

[33]T42

38Counsel for the plaintiff submitted there is insufficient evidence in this case to directly link the driving of the truck to any incident causing injury.

39Issue was taken with the essential characterisation of the driver undertaking a journey from his compound to the delivery of the bin.  The concept of journey does not enter the analysis.  It is not referred to in the authorities. 

40The further characterisation of what the driver was doing as a transaction is a transaction or a process that had to be completed, is not the issue.  The issue is, was the incident in which he fell directly caused by the driving of the motor vehicle, stressing the importance of the words “directly” and “driving.” 

41The question is one of fact and that is why the Court was asked to make findings of fact that will underpin the ultimate finding of whether the incident was directly caused by the driving.

Findings of fact

42I prefer the evidence of Mr MacDonald as to the incident circumstances to Mr Stewart’s account.   

43Mr Stewart’s evidence was shown to be wrong about the bin being full.  Dockets confirm the contrary, and that put a shadow over his evidence in a general sense, as to its accuracy and reliability. 

44As Mr Stewart conceded, five years on now, his memory is not clear and he does not remember whether Mr MacDonald was dealing with a full bin or whether it was empty when he deposited it just before he was hurt.[34]

[34]

45It is not in dispute that the truck was parked with its engine running so Mr Macdonald could operate the hydraulics to lower the bin.

46Given the dimensions of the mesh sheets were 6 metres x 3 metres, it is unlikely both the front and rear wheels were on the mesh when Mr MacDonald fell.

47I prefer Mr MacDonald’s evidence that, after he alighted from the truck, he took a number of steps on the dirt before stepping up onto the mesh.  He then took a further five steps or so before he fell on the smaller piece of mesh.

48Mr Stewart has had little need to recall the incident circumstances and is less likely to be reliable about matters such as the location of the truck relevant to the mesh on the ground than Mr MacDonald.  He was prepared to admit it was possible he was wrong about a number of issues.

The Law

49The High Court, in Insurance Commission of Western Australia v Container Handlers Pty Ltd & Ors,[35] provided authoritative guidance as to the approach to be adopted in determining whether Mr MacDonald’s injury was directly caused by the driving of the truck.  However, as Moore J noted, in Zengin v Insurance Commission of Western Australia,[36] at paragraph 50:

“It is not to be overlooked that unsurprisingly, the High Court’s consideration and discussion of the formulation necessarily occurred in part by reference and in the context of the facts of the case.”

[35] (2004) 218 CLR 89 (“Containers”)

[36] [2020] VSC 237 (“Zengin”)

50Moore J conveniently summarised the approach of the High Court as follows:

“Considering each of the judgments in Container Handlers, the question for determination is essentially the same, albeit expressed in slightly different terms.  The issue is whether the claimed injuries were:

(a)a consequence of a feature of the bus driver’s operation and control of the direction and speed of the bus (McHugh J at para 52);

(b)directly caused by the actual control and management of the bus while it was in locomotion (Heydon J at para 153);

(c)directly caused by the operation of the bus while it was in the control of the driver in the course of putting it into, keeping it in, or bringing its motion to a conclusion (Callinan J at para 133).”

51Heydon J also referred to “the driving” of a vehicle as having the core meaning of an activity conducted by a human being in the driver’s seat who manages and directs the course of its movement by operating the controls.[37]  

[37]        At paragraph [153]

52Parliament intended “driving” to mean locomotion or movement, so the concept of locomotion meaning moving from place to place, or matters so closely connected with locomotion, and movement as to be, in effect, part of locomotion and movement.[38]

[38]        At paragraph [34]

53The three members of the High Court in Containers each described an active process was required for the definition of driving.

54Such an active process is absent in the present case.

55Although the engine was running, the truck was stationary in park.  There was no driver sitting in the driver’s seat in control of the truck at the time Mr MacDonald fell.  He was some distance from the truck, walking on the mesh.  No one was exercising actual control over the direction and management of the truck as was the case when the passengers suffered injury immediately on alighting from a bus in Pederson[39] and Zengin.[40]

[39]One of the cases referred to in Transport Accident Commission v Treloar & Ors [1992] 1 VR 447 (“Pederson”)

[40]        Supra

56Noting the inconsistencies in the conclusions reached by the courts when applying the concept of driving and the difficulty in drawing a line between an activity that can be described as driving and one that cannot , McHugh J stated in Containers:

“In any event, neither the decisions nor the reasoning in each case support the proposition that, after the driver has stopped and got out of the vehicle, he or she is still driving it.”[41]

[41]        At paragraph [52]

57As counsel for the plaintiff submitted, of course, there is no speed in the present case, as the truck was stationary.  There is no active direction, because the vehicle has come to a full stop and is in park, and whether the engine is running or not, is not material.  Whether it was to operate the hydraulics or to move the vehicle further, it does not matter, because it was fully stopped and in park, and the driver was not in it – “So it was certainly an exercise in artificiality to suggest it was being driven at the moment when he was some metres away and falling.”[42]

[42]        T53

58Further, it is one thing to say it was parked in an unsafe position, but that has to be “unpacked” to show there was nothing unsafe about the position where the vehicle was brought to a rest as far as the driver was concerned, because, in the first instance, it was not adjacent to the mesh – the truck cab was not adjacent to the mesh.[43]

[43]        T60

59Even if it was, that does not make it unsafe.  It draws attention to the fact that, had he wanted to, the driver had an alternative route, he could have gone around the other way.  So, in those circumstances, there is no inevitability of accident that might imply a direct causal connection between the driving and the incident.  So the fact he had an alternative and he had avoided any accident, at least for five steps before he came to grief, indicated the absence of the necessary immediate direct proximate connection between driving and incident.[44]

[44]        T60

60Further, as counsel for the plaintiff submitted ,a bus is different to a bin truck.  It is delivering bins.  Having to get out to look and see how close he was to the wall was incidental to the exercise of delivering the bin.  There is no evidence that was an essential feature of the use of that vehicle.  It was entirely incidental on the evidence.  It is not essential and that is an important distinction with Zengin.[45] 

[45]        T56

61On the facts of the present case, the driving of the truck does not include it being driven to and stopped at a spot some distance from where Mr MacDonald fell.

62Further, some meaning must be attached to the use of the word “directly” in the definition section.

63In Transport Accident Commission v Iacuone,[46] Mandie J discussed the fact that the word “directly” adds to the words “caused by” to require a more proximate and immediate causal relationship than if the words were simply “caused by” without the use of the additional word “directly”, the point being “caused by” connotes a direct relationship, while the addition of the word “directly” makes it even more direct, so it requires a proximate and an immediate causal relationship. 

[46][1988] VSC 192 per Mandie J

64As counsel for the plaintiff submitted, immediate – although not mentioned in the definition – is very important, and what is absent in this case is immediacy between the driving and between the incident.  In that context, the number of steps Mr MacDonald took is absolutely relevant.  It is fundamental to the Court’s determination the incident did not occur immediately upon the driving concluding. Both Pederson and Zengin concerned people stepping from buses, and as they step, they fall.  That is not what happened in the present case. 

65Further, unlike in Zengin, the injury was not the immediate consequence.  First, there was no immediate risk to Mr MacDonald of tripping on the mesh.  The risk came when he took a few steps towards the back of the truck and had to step onto the mesh.  That was not the risk which brought him to grief, it was the later one with the small cut piece of steel mesh.[47]

[47]        T57

66There was an important gap between the conclusion of the driving and occurrence of the incident.  The driving had stopped when Mr MacDonald had alighted from the truck.  There was absolutely no risk and no hazard involved in him stepping down from the truck onto the ground.  The hazard appeared later on, having walked a number of steps on the mesh.[48]

[48]T57

67For the above reasons, I do not accept the incident was directly caused by the driving of the truck.  Further, I am satisfied that the incident occurred in circumstances where compensation payments have been made arising under and pursuant to the provisions of the WIRC Act.

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