WILLIAMS v Zerella Holdings Pty Ltd - [2011] SADC 179

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
WILLIAMS v ZERELLA HOLDINGS PTY LTD & ORS
[2011] SADC 179
Judgment of His Honour Judge Clayton
22 November 2011
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - SPECIFIC INTERPRETATIONS - OTHER CASES
Plaintiff sustained injuries as a consequence of the allegedly negligent operation of a forklift which was not insured under the Motor Vehicles Act 1959. The forklift was being used to unload a truck in the loading bay of the first defendant’s premises. Master directed that there be a determination as a preliminary issue of the question whether the area where the incident occurred was either a “road” or a “road related area” as those terms are defined in s 5 of the Motor Vehicles Act 1959.
Case decided on its own facts.
HELD: The relevant area was not a “road” or a “road related area”.
Motor Vehicles Act 1959 s 5; Road Traffic Act 1961 s 5, s 175 (1), referred to.
Dwyer v Police [2005] SASC 31; Schubert v Lee (1946) 71 CLR 589; Mercantile Mutual Insurance Co Ltd v W Turner Pty Ltd [1982] 1 NSWLR 728; Marsh v Arscott [1982] Crim LR 827; Harrison v Hill [1932] SC (J) 13; McBain v Reyne (1998) 69 SASR 580; Griffin v Squires [1958] 1 WLR 1106; Deacon v AT (a minor) [1976] RTR 244; Lock v Leatherdale [1979] RTR 201; R v Abrahams [1984] 1 NSWLR 491, considered.

WILLIAMS v ZERELLA HOLDINGS PTY LTD & ORS
[2011] SADC 179

The plaintiff, Maurice Clive Williams, has claimed damages for injuries which he sustained on 15 June 2005 at the premises of the first defendant Zerella Holdings Pty Ltd at Johns Road, Virginia. The second defendant Darren Ian Edwards was employed by the Zerella Holdings as a forklift driver. It is alleged that while Mr Edwards was operating a forklift he caused pallets to fall from the back of a truck and strike Mr Williams.
The forklift was uninsured. Hence the Nominal Defendant has been joined as a third defendant.
Master Rice ordered that the issue raised by para 10 of the Statement of Claim be determined as a preliminary issue. Paragraph 10 alleges:
[10] At all material times the area where the incident occurred was either a "road" or a "road related area" as those terms are defined in section 5 of the Motor Vehicles Act 1959.
The same issue is raised in para 2 of the Defence of the Nominal Defendant to the Contribution Notice of the First and Second Defendants.
In the Motor Vehicles Act 1959:
road means an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving of motor vehicles;
road related area means any of the following:
(a)    an area that divides a road; or
(b)    a footpath or nature strip adjacent to a road; or
(c)    an area that is not a road and that is open to the public and designated for use by cyclists or animals; or
(d)    an area that is not a road and that is open to or used by the public for driving or parking motor vehicles; or
(e)    any other area that is open to or used by the public and that has been declared by the Minister under section 6 to be a road related area
The plaintiff and the first two defendants assert that the area where the incident occurred was either a "road" or a "road related area" so that the vehicle was required to be registered and insured in accordance with the provisions of the Motor Vehicles Act 1959. The question for me to determine is whether the area in question was a "road" or a "road related area" as defined in subpara (d) of the definition. The other definitions of "road related area" are not relevant.
The case of the Nominal Defendant is that the area was not a "road" or "road related area" and that the forklift was not required to be insured.
The business of Zerella Holdings Pty Ltd and the area where the incident occurred
The court heard evidence from the plaintiff, the defendant Mr Edwards and Ms Pomery, the OH&S Coordinator of Zerella Holdings. Photographs of the area were tendered and the court had a view of the property.
Zerella Holdings carries on what appears to be a substantial business under the business name "Zerella Farms" from the property at Johns Road, Virginia. That property includes the area where the injury is alleged to have occurred. The business of Zerella Farms involves buying, washing, packing and selling potatoes, onions and carrots.
Produce from suppliers is brought into Zerella Holdings premises by various types of vehicles such as trucks, semitrailers and B-Doubles and unloaded. After processing by Zerella Holdings the produce is taken from the premises by the same types of vehicles. The produce is loaded and unloaded onto the delivery vehicles with forklifts.
The Zerella Holdings property occupies a significant area. Apart from the loading bay where the accident occurred there are a market garden, processing areas, an office and other buildings.
Johns Road, Virginia generally is a relatively remote area. Although there was no evidence on this topic I observed on the view that the locality was in the main used for market gardening or light industrial purposes. It is not a residential area.
Near the junction of Johns Road and Angle Vale Road there was a large sign which advised that the office and packing shed of Zerella Holdings was 1 km to the north along Johns Road.[1] The sign contained the words "Growers, Packers, Distributors and Exporters” and the words "Potatoes, Carrots and Onions". There was nothing on the sign to indicate that the premises of Zerella Holdings were open to the public or that the public could purchase produce from Zerella Holdings.
[1] Exhibit P9.
There was no apparent reason for members of the public to pass by the Zerella Holdings property on Johns Road unless they had business with either Zerella Holdings or other premises further north on Johns Road.
At the time of the accident in June 2005 a bitumen access road ran from Johns Road on the eastern boundary of the Zerella Holdings property to the west to provide access to a parking area, the area where the trucks were loaded and unloaded, which I will refer to as "the loading bay", a packing shed and an office. That bitumen access road was roughly 25 feet in width and about 200 m in length.
Along the eastern boundary of the Zerella Holdings property on Johns Road there was a cyclone wire fence about 1.8 m in height. There was a break in the fence line to provide access to the bitumen access road and there were two hinged gates which could be closed to prevent access. There is evidence that the gates were closed at night and opened in the morning when the first workers required access to the premises.
Approximately 100 m along the access roadway from the gate there was a sign which read "All drivers and visitors. Please enquire at office for permission to enter packing shed". Ms Pomery, the Occupational Health and Safety coordinator at Zerella Holdings, gave evidence that the reference to the "packing shed" on that sign referred to the entire site.[2] To the south of that sign there was a large grey building approximately 20 m in length. The evidence did not describe the purpose of that building.
[2] T136 l32.
About 40 m further west of the first sign there was another sign on the left‑hand side of the roadway on which were written the words "No Cars Past This Point". That sign was some distance to the east of the loading bay.
The access road leads to a large parking area which is over 100 m from the gate on the northern side of the access road. To the north of the parking area there is a cream brick office. On the office building at the time of the view there was a sign which read "All visitors and contractors must sign in. All visitors and contractors entering the shed must be wearing a safety vest and appropriate footwear".[3] There is a contest as to whether that sign was in existence at the time of the accident.[4] I will proceed on the basis that the sign was not in existence.
[3] Exhibit N10 p 2.
[4] T38 l23.
The specific area where the accident occurred was the loading bay which is about 200 m West of the gate. The exact dimensions of the loading bay were not given in evidence, but the photographs suggest that the covered area was about 200' x 200' square. On the southern side the loading bay was open. It was closed on the other three sides. Looking into the covered area from south to north towards the rear right-hand (northwest) corner there was a prefabricated office which extended from the eastern wall of the loading bay building for about 25 feet. In about the middle of the northern rear wall of the loading bay building there was a large door which gave forklifts access to a packing shed north of the loading bay. On the north eastern side of the northern wall of the loading bay there was another prefabricated office.
On one of the internal offices there was a sign which read "All drivers must be signed in before being loaded or unloaded".
The floor of the loading bay was covered with a concrete slab which extended a further 7 metres into an uncovered area south of the roofline on the southern side of the shed. From the southern boundary of the concrete slab there was a bitumenised area which extended for a further 12 m or so to the south. South of that bitumenised area there was a further levelled area covered by a surface of dirt and gravel.
All of the concreted area, the bitumenised area and the area with the surface of dirt and gravel could be used to load and unload vehicles. I have treated all of that area as the loading bay and as the area where the incident occurred.
The photographs show a yellow ramp with a docking bay on the western side of the unloading shed. The evidence establishes that the ramp was not in existence at the relevant time.[5] At the relevant time forklifts loaded and unloaded vehicles from the ground alongside of the vehicles. The vehicles being unloaded could be parked beyond the concrete apron onto the bitumenised area and if necessary on to the dirt and gravel area.
[5] T21 l19.
At the time of the view there was a specific sign on an office building in the covered area which read "All Drivers Must Be Signed in before Being Loaded or Unloaded". I accept the evidence that the sign was not in existence at the time of the accident.[6]
[6] T39 l23.
At the time of the accident the first defendant had prepared a document called "Statement of Policy: Occupational Health and Safety - Packing Shed Site ~ Visitors/Contractors ~".[7] One of the stated policies was that "All visitors and contractors are required to be inducted". Another was "All visitors and contractors are required to exercise good judgment while moving around the site or completing tasks and to ensure that their actions do not create hazards to themselves or other employees". I find that the document sets out the polices of Zerella Holdings.
[7] Exhibit N13.
Ms Pomery gave evidence, which I accept, that visitors and contractors were inducted into the safety aspects of the packing shed site.
The plaintiff marked on Exhibit P7 the precise area where his vehicle was at the time of the accident. The vehicle was parked on the concrete in the covered area with its rear facing to the north alongside of and parallel to where the loading ramp is now. The rear of the vehicle is shown on a yellow line which is about 1 to 2 m south of the commencement of the ramp. There is also some dispute as to whether the yellow line was in existence at the time of the accident.[8] Whether the yellow line was in existence is inconsequential for present purposes. What is significant is that the plaintiff's vehicle was on the concrete apron underneath the covered area.
[8] T21 l23.
On Exhibit P4 the plaintiff marked the position where he was standing when the incident occurred. That position was approximately on the join between the cement slab and the bitumenised area about one quarter of the distance from the western wall to the eastern wall.
The question to be determined is whether the position where the accident occurred was a "road" or a "road related area" within the definitions in the Motor Vehicles Act. I have proceeded on the basis that the area where the incident occurred was the whole of the loading bay and that for present purposes it is unnecessary to consider the remainder of the Zerella Holdings property. For the reasons which follow I suspect that the result would be the same if I regarded the whole of the Zerella Holdings property as the relevant area. Mr Ward, who appeared for the Nominal Defendant, argued that everything inside the gate on Johns Road was private property and was not open to the public.
The Definitions of "road" and "road related area" - the cases
The definition of "road" in s 5 of the Road Traffic Act 1961 was considered by Bleby J in Dwyer v Police [2005] SASC 31. That section defined "road" as meaning "an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving of motor vehicles". That is the same as the definition of "road" in the Motor Vehicles Act which is presently under consideration.
Bleby J observed that cases decided upon earlier definitions of "road" are of limited assistance and must be read with some care. However while caution is necessary cases dealing with other definitions of "road" do provide assistance.
In Dwyer the appellant had been charged with driving under the influence of alcohol. The question was whether the place where he drove was a road. Because of a reversal of onus in s 175 (1) of the Road Traffic Act the appellant was required to prove that the place was not a road.
Bleby J noted that there were two definitions of "road" in s 5 and that within each limb there were two alternatives. His Honour found that the access road in question fell within both alternatives of the second limb in that the access road in question was a properly formed and graded road to which gravel or road metal had been added. His Honour was satisfied that the road had been developed for and had as one of its main uses the driving of motor vehicles. In Dwyer the case therefore turned upon the interpretation of the first limb of the definition.[9]
[9] At [12].
In this case, so far as the loading bay is concerned, I am satisfied that both alternatives in the second limb of the definition have been satisfied. The loading bay had been developed for and had as one of its main uses the driving of motor vehicles.
I turn to consider whether the loading bay was "an area that is open to or used by the public". There are two alternatives. Was the area open to the public? Was the area used by the public? Openness and usage are separate considerations. They both describe a factual situation.[10]
[10] Schubert v Lee (1946) 71 CLR 589 at 592.
There is evidence that the gate was closed at night. In Dwyer Bleby J observed that "access or user may be periodic and thus render an area at sometimes a road and at other times not".[11] His Honour referred to Mercantile Mutual Insurance Co Ltd v W Turner Pty Ltd [1982] 1 NSWLR 728, 730-D. The question for consideration therefore is whether the area was one which was open to or used by the public at the times when the gate was open. Mr Mills, who represented the first and second defendants, referred to Marsh v Arscott as authority to the effect that "a place may be public for part of the day only".[12]
[11] At [18].
[12] [1982] Crim LR 827.
While the fact that the gate was closed at night cannot resolve the question of openness to the public or use by the public it may be an indication of the degree of control that the owner retained over the property.
In Dwyer, after holding that the area had been developed for or had as one of its main uses the driving of motor vehicles, Bleby J went on to consider whether the area was one that was open to or used by the public. His Honour said:
[20] The final question is therefore whether the access road was "open to" the public. The argument of the respondent was simple: there was no physical barrier; there were no signs discouraging or prohibiting entry; members of the public were free to walk or drive on the access road without restriction. The only exception was when Mr Perugini (the landowner) closed and locked the gate at night during the fruit picking season. I think it was conceded by the respondent that at those times the access road was not a road for the purpose of the definition.
[21] This was not a situation where there was any invitation to the public generally or to a section of it to attend on the property such as might be the case of a privately owned hotel forecourt or a privately owned shopping centre car park. The access road was on privately owned property. At the relevant time there was a gate at the entrance from Montacute Road which could be closed, but which seldom was. Mr Perugini had an undoubted right to forbid members of the public from entering upon his land. He had the right to determine who could enter the property. For anyone to enter the property lawfully it could only be on his invitation or with his licence or with the invitation or licence of a person whom Mr Perugini had authorised to extend that invitation or licence.
In considering what is meant by the term "the public" in the definition Bleby J referred to the decision of the Court of Justiciary in Scotland in Harrison v Hill [1932] SC (J) 13. In that case the road under consideration was a road leading through a farm without a gate at the entrance. While the entrance would be barred when cattle were grazing in a paddock through which the road ran it was not a public road in the conventional sense. Members of the public without business at the farm frequently walked on it. The Lord Justice General, Lord Clyde said of the words "the public":
I think that, when the statute speaks of "the public" in this connexion, what is meant is the public generally, and not the special class of members of the public who have occasion for business or social purposes to go to the farmhouse or to any part of the farm itself; were it otherwise, the definition might just as well have included all private roads as well as all public highways.
The Court of Judiciary found on the particular circumstances of that case that the public generally did have access to the road in question without objection, unless there was any reason to believe that the person so using it were likely to commit mischief.
In Schubert v Lee the High Court considered the same phrase as that which is contained in the definition of "road" in s 5. In their joint judgment Latham CJ, Rich and Dixon JJ said at 592:
The words "open to or used by the public" are apt to describe the factual condition consisting in any real use of the place by the public as the public-as distinct from use by licence of a particular person or only casual or occasional use. It may be necessary to distinguish places open to members of the public as such from places left open by the owner but obviously intended only for the use of a particular description of person, for example, visitors to his shop or other premises. (my underlining)
Bleby J referred to McBain v Reyne (1998) 69 SASR 580 where Debelle J had been required to consider an earlier definition of "road" in s 5 of the Motor Vehicles Act which referred to "any other place, used by the public or to which the public are permitted to have access". Debelle J considered what was meant by the words "the public". After referring to Harrison v Hill and Schubert v Lee Debelle J said:
There is little difference between the test in Schubert v Lee and that in Harrison v Hill. But the distinction between the public generally and a special class constituted by those who use the land for a business or social purpose does not provide a touchstone of universal application to decide whether a place is a road. It does not necessarily assist where there is a constant and frequent use of the place by a significant number of persons who are there for a business or social purpose. Nor does it assist in those cases where private land is made available for use by the public on particular occasions. The decisions provide a guide as to what is meant by the adjectival phrases in para (b) of the definition in the Motor Vehicles Act.

As to the phrase "commonly used by the public" Debelle J said:
The ordinary meaning of the expression "commonly used by the public" denotes constant and frequent use of an area by the public generally. The question whether a place is commonly used by the public is essentially a question of fact; the test is simply, has the place been commonly used by the public?: Marklew v Allen (1974) 9 SASR 32 at 33-34 and Schubert v Lee (at 592).
After considering whether the use by the public need be of right or lawful or without opposition or objection Debelle J said:
As the decisions in Harrison v Hill and Schubert v Lee indicate, it may be necessary to distinguish places open to the public generally from places left open but which are obviously intended only for the use of persons for business or social purposes. That proposition serves to emphasise that the issue involves a question of fact. Thus, there is an obvious distinction between private houses which are visited only occasionally for business purposes and areas such as a carpark or forecourt which adjoins retail or commercial premises and which is constantly used by those coming to those premises.
In this context, the fact that the premises are visited or used only by those members of the public who desire to go there does not mean that the place is not commonly used by the public, so long as the premises are open to the public generally and without distinction. In other words, it is not necessary that all segments of the public will come to use the place. What is required is that the place is available to the public without discrimination, and a segment of it in fact enters or goes on to the place, and entry is not limited to a restricted class. If those criteria are satisfied, the place will be available to the public even if the fee must be paid. I respectfully adopt the observations of Glass JA in Mercantile Mutual Insurance Co Ltd v W Turner Pty Ltd [1982] 1 NSWLR 728 at 735:
...I would assume that the class is relevantly defined by the test whether the premises are open indifferently to any member of the public without any discrimination. Moreover it would not matter according to the definition if entry is made dependent upon payment of money or the compliance with other conditions but that is not material here. Applying that definition to the evidence which establishes that any member of the public during the period in question was free to enter and walk about I would find as a matter of fact that the Sandgate Fruit and Vegetable Market at the relevant time fell within the statutory description. Certainly I do not think that it ceased to be open to the public as such because only those citizens minded to buy fruit and vegetables were likely to enter. After all a public baths would not cease to be a place open to the public because only swimmers entered nor would a museum cease to be open to the public merely because its exhibits had an appeal to a limited class only...
So, a caravan park is a place to which the public are permitted to have access. Caravaners, campers and guests are members of the public and not a special class of members of the public, even if they have to satisfy modest conditions for admission: Director of Public Prosecutions (UK) v Vivier [1991] 4 All ER 18 at 24; R v Sweeney [1984] 1 Qd R 628. The place will not be available to the public if there is some restriction on access by, say, membership of an organisation or other criterion for selection. One criterion to assist in deciding whether the use is by a special class of the public is whether entry is permitted because of some characteristic which is personal to themselves - if people come to a private house as guests, postman or meter readers, they come for reasons personal to themselves, to serve the interests of the occupier – or whether they are members of the public who seek entry for their own (rather than the occupier's) purposes but must satisfy conditions for entry such as payment of a fee. DPP v Vivier (at 24). It would seem that there must be an element of contemporaneity in the use to be made of the place. Thus, a past use will not necessarily result in the place being a road: Elizabeth Valley Pty Ltd v Fordham (1970) 16 FLR 459 at 464... (my underlining)
Debelle J referred to cases which applied those principles to determine that the following were roads: a hotel car park; the forecourt of a hotel; a car park for shops including a multi-storey car park; the driveway and forecourt of a service station; roadways within a drive-in theatre; a wharf; a quayside; a lane; a caravan park; a public reserve.
Debelle J also referred to other cases in which it was held that the forecourt of the shop and a service station were not roads, but those cases were decided on their own particular circumstances and are a reminder that the question whether a place is used by the public is a question of fact.[13] His Honour also referred to other cases where places were not held to be a road because they were not commonly used by the public. They included a car park for a block of residential flats, a car park used by members of a bowling club; and a courtyard some distance from the road.[14] A road in a housing estate, used only by those who resided in the estate or the visitors, and not by the public generally was held not to be a road: Deacon v AT (a minor) [1976] RTR 244: Lock v Leatherdale [1979] RTR 201.
[13] At p 602.
[14] Griffin v Squires [1958] 1 WLR 1106.
Debelle J concluded that "the issue depends very much on the facts and circumstances of each case and, in particular the extent of the use by the public".
Turning to the facts in McBain Debelle J said:
The vineyard roads are used only by employees in the vineyard, independent contractors doing work in the vineyard and their employees, persons visiting employees in the vineyard (but on an infrequent basis), and visitors to the vineyard. The visitors are limited as a general rule to persons who are expressly invited to the vineyard. On relatively rare occasions, a few persons may visit without an express invitation. Thus, those who mainly used the vineyard roads are in the vineyard for a purpose which is expressly permitted. They are particular classes of persons which can be readily distinguished from the public. The vineyard does not advertise itself as being open to the public and I find it is not open to the public generally without discrimination. For these reasons, I find that the vineyard roads are not commonly used by the public.[15]
[15] At p 602.
The facts and circumstances of this case and the extent of use by the public
The decision comes down to an examination of the actual use of the loading bay.
As I have mentioned different considerations may apply to different parts of the Zerella property. The area where the incident occurred was the loading bay. I have taken that to include all of the covered area of the loading bay, all of the concrete apron to the south of the covered area, the bitumenised area to the south of the concrete apron, and that part of the levelled dirt and gravel area on which vehicles were likely to travel during the course of loading and unloading.
Was the loading bay an area that was open to or used by the public?
The employees of the defendant and the employees of the carriers were not members of the public. They were the most frequent users of the area but they were not the only users.
The sign at the junction of Johns Road with Angle Vale Road pointed in the direction of the property of Zerella Holdings and identified the location of business, but the sign did not extend an invitation to the public to enter the premises.[16] There was no sign which extended an invitation to the public to enter the premises. On the other hand there were no signs at the gate of the property to indicate that it was private property or warning against trespassing or seeking to limit entry to the property in any way.
[16] Exhibit D9.
I accept that the gate was closed at night. However the gate was not closed at the time of the accident and at the time of the accident there was no physical restriction preventing access to the property.
There was no sign indicated that produce could be purchased from Zerella Holdings by members of the public.
At the time of the accident the sign which is depicted in Exhibit P6 advised "All Drivers and Visitors Please Enquire at the Office for Permission to Enter the Packing Shed". The packing shed was not the loading bay but was the area to the north of the loading bay. That sign did not by its terms specifically refer to the loading bay but it did draw attention to the need for permission.
There is evidence of other signs which were not present at the time of the accident. It is not relevant to consider those signs.
The plaintiff and Mr Edwards gave evidence about the activity in the loading bay at the time of the accident.
Mr Edwards gave evidence that on any given day there might be upwards of twelve B-Doubles loaded or unloaded at the loading bay.[17] Some had full loads while others only had a few pallets. The time that each vehicle spent in the loading bay depended upon the size of its load.
[17] T98 to 99.
Because of their size semitrailers and B-Doubles were loaded or unloaded partially on the concrete apron and partially on the bitumen area. Sometimes trucks were unloaded entirely on the bitumen if the loading bay was otherwise occupied.[18]
[18] T105 l7.
Mr Roberts, counsel for the plaintiff, submitted that on any given day up to 36 different commercial vehicles could have used the loading area at different times.
The use of the loading bay for its intended purpose of loading and unloading carrier vehicles would not by itself make it an area that was open to or used by the public. However the evidence establishes that the loading bay did have other uses.
In addition to the commercial vehicles which delivered and collected produce private vehicles went into the loading bay. The drivers of those private vehicles did not wear uniforms and they drove everyday vehicles.[19] Mr Edwards saw a number of vehicles of that kind each time he attended at the property with a delivery.[20] He saw the drivers of those vehicles collect a few bags of produce.
[19] T24.
[20] T26 l9.
On occasions the plaintiff himself went to Zerella Holdings property outside of work hours to collect produce. There was a practice whereby commercial truck drivers were given a small quantity of produce for which payment should have been, but never was required. He said the reason he went to the premises was because he had a specific arrangement with more than one forklift driver that he would be given free produce - a bag of potatoes and sometimes a bag of carrots.[21] He was never asked to pay for the produce he collected.[22]
[21] T75 l14 to 23.
[22] T85 l7.
Mr Edwards said that they looked after their friends. "It wasn't a big amount. What usually happened, we give them something and they bring us something. I would give them a bag of spuds and they would give us - or a box of potatoes from another farm. They give us something, we give them something. That is how it worked".[23] The amount involved was not large.
[23] T112 l15.
If the plaintiff, or other drivers, attended at the property to collect a small quantity of produce for their private purposes pursuant to an invitation to do that their status was different from their status on those occasions when they attended in the course of their employment to have the vehicles of their employers loaded or unloaded. However even when they attended to make their own purchases the drivers constituted a restricted class with a special invitation or licence and they could not be considered to be members of the public.
Mr Edwards gave evidence of another class of purchaser of produce. He described the presence of vans, utilities and sedans which generally parked on the dirt area or on the bitumen road, although they would park in the loading bay if there was room for them.[24] Mr Edwards described the drivers of those vehicles as customers "like people that own vegetable shops" who collected vegetables for their shops.[25] There were also people such as farmers who purchased waste product for feed and other casual customers who purchased bags of carrots and onions or potatoes.[26] Such persons would "just drop in and grab a little bit of this, a little bit of that sort of thing, a bag of this, a bag of that, a couple of bags of this, a couple of bags of that. The ones in the utes and the vehicles, that sort of thing would pick up a pallet or like a small pallet, sort of thing".[27]
[24] T121 15.
[25] T102.
[26] T105 l21.
[27] T121.
Mr Edwards said that the vehicles parked entirely on the bitumen in the loading bay or entirely on the dirt area, but not on the concrete.[28] His supervisor looked after such customers. On their arrival the supervisor would drive out on his forklift to greet them, take their order, return to the packing shed to assemble the order, and then drive back out to the customers.[29]
[28] T103, 187.
[29] T103.
Mr Edwards knew some of the people who came in the normal cars. They included "Owners of grocery stores, friends, friends of the boss, friends of other people".[30] He said "Most of them were actual customers who had been going there for 10 or 20 years and others were friends or friends of friends and that sort of thing".[31] They were people who knew that if they came in they would be able to purchase produce. Those people paid the fixed price for the goods. Every day prices were fixed and the price list was placed on a board for those persons.
[30] T110 l34.
[31] T111 l18.
Mr Edwards was asked what quantity the private customers purchased and he replied "The ones that come in their cars, they will just drop in and grab a little bit of this, a little bit of that sort of thing, a bag of this, a bag of that, a couple of bags of this, a couple of bags of that. The ones in the utes and the vehicles, that sort of thing would pick up a pallet or like a small pallet, sort of thing". The purchases could consist of a mixture of red onions, white onions, carrots "all sorts of gear". The various items were placed on the pallet by Mr Edwards’ superior.[32]
[32] T121.
On arrival those customers would go in to the loading bay and grab Mr Edwards or his superior to obtain attention. If they went into the loading bay Mr Edwards would take them back out onto the roadway because for their own safety they shouldn't be allowed in the loading bay. The customers never went to the packing shed to inspect what was available.[33]
[33] T122.
If a person did walk through the loading bay Mr Edwards could walk up and ask who they were and what they were doing. He said that if he didn't know who they were he would just say "See you later" and send them out. If they had no business at all at Zerella’s he would send them out the front gate.[34]
[34] T123.
There were other persons who collected waste produce. One of the firm's growers picked up waste product for stock feed. He had a dump truck that was filled with bins of waste. A couple of other workers whose families had stock also went in on the weekend and picked up waste product with a trailer or utility. The waste product was stored in bins at the back of a carrot wash beyond the loading bay. Waste product was not distributed to anyone other than those people.[35]
[35] T128 to 129.
Ms Pomery said that before the accident a person without business at the premises of Zerella Holdings could not wander down the access road, walk down to the shed and walk around it. She said such a person would be stopped by any one who came across them and asked to state their business. She said:
… if I saw somebody just wandering around, I would have stopped them. Most of those who had stopped them had been there for a while, being a family business, stopped them from entering the shed. The general labour hire people possibly wouldn't have, they would have looked at them and done nothing. Anyone in the supervisor position or (who) had been there for a while would have stopped them.[36]
[36] T132 to 133.
She said "You don't have people wandering around".
Ms Pomery agreed in cross-examination that at the time of the accident it would be contrary to Zerella’s policy for people to simply come onto the property and just wander on there without permission. She said people would need permission to go into the packing shed and if they wanted to purchase items that would need to be arranged beforehand. People such as green grocers had to put in a phone order first and they would be told when they could come to pick up the order.[37] A person who drove onto the property and asked to buy produce would first have to be inducted as a visitor at the office.[38]
[37] T135.
[38] T138.
Mr Edwards said there were no rules that applied to either truck drivers or to visitors in respect of the loading bay.[39] The persons whom he described as "visitors" were permitted to be in the loading area and to acquire produce. There was nothing to prevent them from walking into the loading bay and in and around the area where forklifts were operating.[40] The produce was acquired from the packing shed and the loading bay was required to gain access. After the accident changes were implemented but it is unnecessary to consider the post accident changes.[41]
[39] T117 l1.
[40] T122.
[41] T118 l16.
I accept the evidence of Mr Edwards as to the types of person who would go onto and into the loading bay for the purpose of making small purchases of vegetables. However, on the topic of the company's policy I must prefer the evidence of Ms Pomery. She was the more senior person and it was her area of responsibility.
The resolution of this case depends upon whether the attendance of the classes of people whom have been described means that the loading bay was an area open to or used by the public.
Unless a person had some business there would have been no reason for a person to be in the loading bay nor indeed on the property at all. There was no evidence that strangers who had no business on the property wandered around the loading bay. The only evidence of persons going into the loading bay was evidence of persons who entered the loading bay for the specific reasons which have been described.
Because of its relatively remote location it is unlikely anybody would have found their way to the property without some specific reason.
Discussion
The cases do make it clear that the question of whether an area is open to or used by the public is a question which must be resolved on the particular facts of the case.
If the only persons with access to the loading bay were employees of Zerella Holdings or the carriers I would have no difficulty in finding that it was not an area open to or used by the public. The other persons who went into the loading bay for the purpose of making purchases of produce or waste product give rise to other considerations.
In Dwyer, Bleby J said that an owner had the right to determine who could enter the property and for anyone to enter a property lawfully it could only be on his invitation or with his licence or with the invitation or licence of a person whom he had authorised to extend that licence or invitation.[42] His Honour referred to Mercantile Mutual Insurance Co Ltd v W Turner Pty Ltd where Glass JA considered the phrase "open to the public" in the context of privately owned land as opposed to a public road. Glass JA said, at 735:
...It is axiomatic that the openness or accessibility to the public of private premises will depend upon some definition of the kind of invitation extended by the occupier to members of the public. How that invitation is to be defined to produce the result that a private place is open to the public generally and not merely a section of it is a question which should be left to be dealt with when it arises...
[42] At [21].
With respect to those comments of Glass JA Bleby J said:
In other words there must be an invitation or permission to the public before it can be said that the public has access to the area, or that the place is "open" to the public. That invitation may be express; it may be implied.[43]
[43] At [23].

Bleby J then returned to consider what the High Court said in Schubert v Lee namely:
...The words "open to or used by the public" are apt to describe a factual condition consisting in any real use of the place by the public as the public-as distinct from use by licence of a particular person or only casual or occasional use. It may be necessary to distinguish places open to members of the public as such from places left open by the owner but obviously intended only for the use of a particular description of person, for example, visitors to his shop or other premises. Prima facie the words of the section mean streets, etc, which actually are open to or used by the public, so that there is some need for protection of the public in this use of such streets, etc...[44]
[44] At [24].
Bleby J said:
The distinction noted by the members of the High Court is relevant here. It imports into the notion of being "open" to the public, in the case of private property, an element of intended permission or licence by the owner. The evidence in this case showed that, although the gate was left open, the access road was intended only for use by a very limited class of persons and not by members of the public.[45]
[45] At [25].
That observation also applies to the present case.
Bleby J thought that the lack of a physical barrier or gate was not by itself a sufficient invitation or licence. He considered that the existence of the gate which might have been closed indicated the reservation of a right on the part of the owner to exclude the public as and when he wished. Bleby J said:
...However merely because premises are open in the sense of having no physical barrier between them and a public road does not mean that the owner consents to any member of the public entering upon the land. If it were otherwise, it would follow that at anytime I leave the front gate of my residence open it would constitute permission to the public generally to enter, and if the gate happened to be across the driveway which leads to my carport, my driveway would become a "road" for the purposes of the Road Traffic Act. Most people would recognise, I think, where premises are fenced along the boundary of a public road, where the only physical opening is a gateway which can be closed, and where the road or track has no other purpose than to provide access to remote parts of the premises, that the owner is intending to exercise his right to exclude persons from the premises unless they have the owner's permission. No sign or threat is necessary. That would apply to a rural allotment in the same way as it does to an urban residential allotment.[46]
[46] At [28].
In Dwyer Bleby J held that the appellant had proved that the access road was neither open to nor used by the public in the relevant sense. He said that an area such as that in question was only open to the public if there was evidence that the owner had given express or implied permission to members of the public of the relevant class to enter upon land. There was no such evidence in that case. Accordingly it was not open to the magistrate to conclude that members of the public had access in any relevant sense to the access road or that it was open to the public.[47]
[47] At [30].
In the present case the difficult class is those persons who go on to the loading bay in the Zerella property for the purpose of making purchases. The circumstances in which those purchases were made indicates that those particular purchasers had an implied licence to go onto the unloading area for the purpose of making their purchases. That class is a small proportion of the public at large and the licence is restricted to that class. I do not think that the evidence establishes a licence other than in the case of the specific persons whom I have mentioned. The class of person to whom the licence extended was a relatively small class of persons, most of whom already had some connection with the defendant's business.
The evidence does not establish that members of the general public were either entitled to or did either pass through the gate or go onto the unloading bay.
The various signs establish that Zerella Holdings attempted to restrict public access to its premises. The evidence of Ms Pomery establishes that Zerella Holdings took steps to control the property and to exclude persons who did not have business there.
Applying the reasoning of Debelle J in McBain I would have concluded that the loading bay is not an area "that is open to or used by the public". In McBain Debelle J said:
Thomas Hardy did not expressly permit the public to have access to its vineyard. Despite the fact that there were no gates or barriers to access to the two vineyard roads which allowed movement to and from the main road between Naracoorte and Padthaway, I do not think it is possible to find that there was any implied permission. It was readily apparent that the land was privately owned and used for vineyard purposes. Apart from gateways and entrances, the land was surrounded by a fence. The land had all the hallmarks of other private land in the area being used for the purposes of primary production, in this case growing grapes. The use of the vineyard roads by employees, independent contractors and their employees and infrequently by persons visiting employees and by other visitors was a use by special classes of the public. They were permitted to use those thoroughfares because they were employees, independent contractors, employees of independent contractors or visitors to those employees. In the case of most visitors to the vineyard, they had express permission. For these reasons, the vineyard roads were not places to which the public were permitted to have access.[48]
[48] At p 603 to 604.
In the present case the loading bay was used by employees, independent contractors and their employees and by other visitors namely the purchasers of small quantities of produce. The evidence establishes that in most cases those persons had express permission to enter the property. In the other cases they had permission which can be implied from the fact that Zerella Holdings sold produce to them. The "friends of friends" who went to the property because they had learnt produce could be purchased may not have had a licence to begin with. However the procedure described by Ms Pomery would have required those people to present themselves at the office.[49] She gave the following evidence:
[49] T133 l32.
QSo is this correct to say, that at the time of this accident, that it would not be contrary to Zerella’s policy for people to simply come onto the property, independent of staff, and just wander on there.
AWithout purpose, yeah.
QWithout permission. They would need to get permission.
ATo go in the packing shed, yes.
QIf they wanted to go in and purchase items, that would need to be arranged beforehand; that's correct.
AThat's right.
QSo as it would be arranged for, let's say Collins Transport. If they were coming it would be prearranged what they were getting and the payment authorised separately.
AThat's right.
QSo if I owned a local greengrocer in Virginia, I might have an arrangement with Zerella’s to pick up bags and produce; that's correct.
AThat’s right.
QI couldn't just come on and do it. I would have to go to the office at least once so that people at Zerella’s were aware that I was aware of the safety procedures and so forth.
AAnd also to put in your order because they would take phone orders first. So whoever was purchasing would ring in an order and be told when they could come and pick it up.
QSorry, another factor that I mentioned, of course, in there, is there a policy about alcohol and drugs and so forth.
AThat's right.
QTo make sure on your property, the business property, that there is control of the people that were going on there. That they were not under the influence of alcohol or drugs.
AThat's right.[50]
[50] T134 to 135.
Ms Pomery said a person who drove onto the property and wanted to buy produce would first have to be inducted as a visitor.[51] Such a person would be sent back to the office and made to wait until Zerella was satisfied that the person would not be a risk to safety or the product.[52] The sign as one drives down the access road which reads "All drivers and visitors please enquire at the office for permission to enter the packing shed" supports the evidence of Ms Pomery.
[51] T138 l9.
[52] T138.
I follow the decision of Debelle J in McBain and hold that the loading bay was not a road or a road related area.
In Dwyer Bleby J concluded:
It follows that, in my opinion, an area such as that in question in this case is only open to the public if there is some evidence that the owner has given express or implied permission to members of the public of the relevant class to enter upon the land. There was no such evidence in this case. Accordingly, in my opinion, it was not open to the Magistrate to conclude that members of the public had access in any relevant sense to the access road in question or that it was open to the public…[53]
[53] At [30].
In that case Bleby J found that the access road was neither open to nor used by the public. On the basis of that decision also I would find that the loading bay was not a road or a road related area.
There is no evidence that the property was open to or used by the public at large. The evidence to which I have referred is to the contrary. The property was only open to and used by that limited class of persons which had an implied licence. Apart from employees the class comprises the relatively small number of persons who were permitted to purchase produce. The evidence establishes that apart from employees of the defendant and employees of carriers the only persons who entered the loading bay were persons who had somehow gained knowledge of the availability of potatoes, onions and carrots. The sale of produce was not advertised. The range of goods was limited to those goods that Zerella Holdings sold, namely potatoes, onions and carrots.
In R v Abrahams [1984] 1 NSWLR 491 the Court of Criminal Appeal in New South Wales discussed a number of cases where various locations such as hotel car parks and shopping centre car parks were open to or used by the public for the purpose of similar legislation. None of the locations considered was directly comparable with the defendant's property. In Abrahams O'Brien CJ of Cr D observed at 512-E:
In Harrison v Hill Lord Clyde was at pains to distinguish "the public generally" from "the special class of members of the public who had occasion for business or social reasons to go to the farmhouse" such as the appellant fishmonger in that case, who was using the road to visit farmhouse in connection with his own business. His Lordship was anxious to advance the purpose of the statute which he considered was the protection of the public without carrying it to the extreme of extending it to the passageways on private property on which the owner is taken to permit the entry of those members of the public who have an individual or personal relationship with him, such as those who deliver the mail or supplies for the premises, who read the electricity or gas meters, tradesmen who attend to carry out maintenance, people in his employ, persons who call to make a charity appeal or a commercial offer or the like and friends who enter by way of ordinary social intercourse. They may be taken to be members of the public who use the premises by licence of a particular person, or as visitors to the premises, but to include such members of the public in the statutory definition would be to include all private passageways since no man can live in total isolation.
The cases to which I have referred establish that the fact that the gate may not be closed at certain times does not mean that the property is open to the public. The fact that physical access to the property may be unrestricted when the gateway is not closed is not sufficient to establish that the property is open to the public. The evidence in the present case does not establish that Zerella Holdings had extended a licence or invitation to the members of the public in general to be upon its premises. The policy that "All visitors and contractors are required to be inducted" was significant.
In the passage set out from the speech of Lord Clyde His Lordship distinguished between the public generally and the special class of members of the public who had occasion for business or social purposes to go to the farmhouse or farm. His Lordship said "otherwise the definition might just as well have included all private roads as well as all public highways".[54]
[54] See [40] above.
In Schubert Latham CJ, Dixon and Rich JJ distinguished between real use of a place by the public as the public as distinct by the use by licence of a particular reason or only casual more occasional use. Their Honours pointed out the need to distinguish premises intended only for use of a particular description of persons "for example visitors to shop or other premises".
Mr Mills submitted that in this case there was no limited class.[55] I do not accept that submission which is not supported by the evidence. I have found that Zerella Holdings did not extend a licence or invitation to the public.
[55] T191 l5.
Mr Mills submitted that the key issue is the level or intensity at which the usage occurred. I do not accept that submission. Mr Mills submitted there was evidence of substantial, frequent and intense use. By his cross‑examination Mr Mills did establish that a large number of contractors used the loading bay and that it was a very busy place. Usage of the loading bay may have been frequent, substantial and intense, but most of the persons who entered the loading bay were employees of the first defendant itself or the carriers. They were not the public. The intensity of the activity on the loading bay is not the test. One needs to consider the characteristics of the persons who entered the property, not the level of activity.
Mr Mills suggested that in construing the legislation one should take into account that it was a dangerous area. I do not accept that submission. The question is whether the area was open to and used by the public. As I have said that requires categorisation of the persons who entered the property rather than an analysis of dangers in the loading bay.
I do not accept Mr Mills’ submission that Dwyer can be distinguished on its facts in so far as Bleby J held premises can only be open to the public if the owner had given express or implied permission to enter upon the land. In my opinion the remarks of Bleby J have equal application to the facts in this case. There is no evidence that the first defendant had given permission to enter the property to the public at large.
In my opinion the question which the master identified for determination should be answered as follows:
The area where the incident referred to in the Statement of Claim occurred was neither a "road" or a "road related area" as those terms are defined in s 5 of the Motor Vehicles Act 1959.