WorkCover Corporation v Thomas Joseph Reiter No. Scgrg-97-204 Judgment No. 6313 Number of Pages 14 Workers' Compensation

[1997] SASC 6313

IN THE SUPREME COURT OF SOUTH AUSTRALIA

OLSSON, J

Workers' compensation - entitlement to and liability for compensation - plaintiff seeking to claim the benefit of a judgment which was made in favour of the defendant for an action in negligence in the Victorian Supreme Court - injury occurred during unloading of vehicle in Victoria - Victorian judgment founded on unsafe system of work - consideration of section 54 of the WorkersRehabilitation and Compensation Act and in particular construction of subsection (7b) - defendant statute barred from proceeding with a civil action in South Australia - whether the compensation paid to the defendant in Victoria was an "excess" claimable by plaintiff under section 54(7b) - whether injury arose from the use of a motor vehicle - consideration of the meaning of "similar action". Workers Rehabilitation and Compensation Act 1986 ss 54, 55; Wrongs Act 1936 s 35A; Workers Rehabilitation and Compensation (Miscellaneous) Amendment Act 1992 ; Motor Vehicles Act 1959 , referred to. Dickinson v The Motor Vehicle Insurance Trust (1987) 163 CLR 500; Muegel v Fast Freight Pty Ltd and Anor (1987) 45 SASR 20; Norwich Winterthur Insurance (Australia) Ltd v State Government Insurance Commission (1991) 56 SASR 165; State Government Insurance Commission v Wagner (1993) 62 SASR 175; Heath v Corporation of the City of Tea Tree Gully and Anor (1996) 66 SASR 548, considered.

ADELAIDE, 7 August 1997 (hearing), 29 August 1997 (decision)

#DATE 29:8:1997

#ADD 8:9:1997

Plaintiff Workcover Corporation:

Counsel: Mr S Walsh QC

Solicitors: Donaldson Walsh

Defendant Thomas Joseph Reiter:

Counsel: Mr D Smith with Mr T Tobin

Solicitors: Brown Aston & Hamilton

Order: claim dismissed

OLSSON J

In this action the plaintiff "WorkCover" primarily seeks declaratory relief against the defendant "Reiter", consequent upon the latter obtaining a judgment in the Supreme Court of Victoria for common law damages against his employer in respect of personal injuries sustained by him in the course of his employment. In essence it contends that it is entitled to the benefit of that judgment to the exclusion of Reiter, by virtue of the provisions of section 54(7b) of the Workers Rehabilitation and Compensation Act, 1986 ("the WRCA").

In order to appreciate and analyse the issues identified and arguments presented by the parties, it is first necessary to embark upon a careful and detailed resume of the relevant narrative facts giving rise to the present proceedings.

I do so on the footing that, by consent, I was invited to extract those facts from a considerable volume of documentary material placed before me. In the main this consisted of the transcript of evidence taken in the relevant Victorian proceedings and copies of exhibits tendered in such proceedings. No oral evidence was adduced.

In this regard it is to be noted that subsection (7c) of section 54 of the WRCA specifically stipulates that, in the course of any proceedings brought pursuant to section (7b) of that statute, I am entitled to -

* receive in evidence any transcript of evidence taken in the relevant Victorian proceedings and draw any conclusions of fact from it considered proper; and

* adopt any of the Victorian Court's findings of fact.

The Victorian proceedings went forward before the Supreme Court of that State sitting in its common law civil jurisdiction, with a civil jury. Accordingly, no findings of fact were published - as would have been the situation in the case of trial by judge alone. It is therefore for me to consider not only the record of evidence led, but also the implications which naturally and compellingly arise from it, given the implications to be attached to the verdict ultimately returned.

Fortunately, much of the narrative fact was not contentious. The main debate which arose tended to focus on the question of what inferences ought to be drawn from the primary facts.

I therefore proceed to a summary of those facts which appear to me to have been established.

Reiter is a married man who, at all material times, resided with his wife and children at Mt Gambier in this State. He was born on 14 March 1961 and was, thus, almost 32 years of age when he sustained his injuries.

As at 19 February 1993 he was employed as a heavy vehicle driver by K & S Freighters Pty Ltd ("K & S"), which was a carrier incorporated in South Australia. Inter alia, it carried on business from a depot located in Mt Gambier. It also had one or more depots elsewhere. Reiter had commenced employment with K & S on 28 September 1987. He normally drove a specific Model 2227 Mercedes-Benz prime mover, registration No UZM-216, with a variety of semi-trailers attached to it. His normal duties included assisting with the loading and unloading of his vehicle.

In conformity with instructions issued to him by his employer, Reiter departed the K & S depot at Mt Gambier in his prime mover at about midnight (South Australian time) on 18 February 1993. He was tasked to tow an unladen trailer from Mt Gambier to his employer's depot at Portland, Victoria and there exchange it for a trailer already fully laden with bales of wool. These bales were to be delivered to several consignees in Victoria.

The trip to Portland was uneventful. Reiter arrived at the depot at about 2.00 am (Eastern Standard Time) on 19 February 1993. He gained access to the then untended depot, unhooked the empty trailer and then positioned his prime mover so as to attach to it the flat top, laden trailer assigned to him. He found that this had been left in the depot in a location previously advised. He verified it by reference to a copy manifest which had been left for him in the "dog box" of the trailer.

Reiter hitched his laden trailer to the prime mover and was eventually ready to leave with it about half an hour after he arrived. He visually checked the load, which was substantially covered by two large, so-called "general" tarpaulins, although wool bales were visible below the bottom of them. The tarpaulins did not extend fully down to and over the bottom layer. It is to be noted that Reiter had previously carted loads of baled wool on only about three or four occasions.

Before departing Portland Reiter checked the load. He ensured the tension and security of both the webbing straps and some ropes that appeared to be holding the load in place and also of the ropes securing the "generals".

Having done so he departed Portland for Geelong - his first delivery point - at about 2.30 am.

It is necessary to pause at this stage to examine the evidence related to the loading of the relevant trailer.

That trailer was fully laden with new bales of wool. There was no other cargo. It was a flat top configuration with steel "gates" at each end. The load consisted of 126 bales, stacked four high. Each of the bottom two levels consisted of 34 bales on their sides in two rows, lying sideways across the trailer. The third tier comprised 30 bales, stacked lengthways along the trailer, three abreast. On the top level there were 26 bales in two rows, with 14 on the offside and 12 on the near-side. The evidence indicated that the bales on the top level had been turned so that some were longways and some were crossways. The bulk of them were crossways, with all on the rear half of the load being in that configuration.

The end "gates" of the trailer effectively held about the first two tiers of bales in position fore and aft, but they had no direct effect on the higher levels.

The evidence revealed that the trailer had been loaded by or under the supervision of the witness Pye. He was an experienced heavy vehicle driver employed by K & S, and was resident in Portland.

Commencing at about 10.30 am on what must have been 18 February, he had taken the trailer to three separate wool stores in and around Portland and assembled the complete load. The bales had been positioned by forklift drivers under his supervision. He claimed that the whole load had been securely tied down, but that the "generals" had not been put over it until he had returned to the depot. Prior to positioning the "generals" he would have re-tightened the straps and ropes securing the load.

The witness was adamant that the whole load (and specifically the bales at the rear of the trailer) had all been securely tied down, failing which he "wouldn't have made it back" to the depot without bales falling off. He confirmed in cross examination that, usually, tensioned straps were used to secure up to and including the third tier of bales, but that ropes were mainly employed to hold the top level, because there were not normally enough straps to secure them as well.

Pye's evidence as to problems of carrying bales of wool accorded with that of other witnesses called, including expert witnesses. These points emerged from the totality of the evidence -

* wool bales, when pressed, are of a rectangular configuration, with square corners;
* however, dependent on the nature of the wool and how well bales are pressed, they are of quite variable weight - ranging from as light as 140 kilograms to as heavy as in excess of 400 kilograms;
* if heavier bales are placed on top of lighter bales the pressure can cause distortion in load configuration and consequent destabilisation of load after time, partly as a result of vehicle motion;
* equally, the tension of securing straps and ropes can cause a distortion of bales (particularly the lighter bales), with a resultant "pillowing" or rounding type effect, which inevitably destabilises a load;
* it was to be expected that any initial tying down of the load, coupled with the motion of travel back from the wool stores to the K & S depot at Portland would have caused initial settling of the load, with a consequent need to re-tension securing straps and ropes - possibly in substantial degree;
* because of potential destabilising effects, it was desirable to have the bottom layers of bales positioned out to the edge of the tray of the trailer and the top tier to be inset to some degree;
* particularly after a load has had an opportunity to settle, a top bale which is not properly roped, or in relation to which a rope becomes loose and detached, would have a propensity to fall off. This might particularly be so when a covering tarpaulin is pulled off a load;
* conversely, bales do not fall off loads if they are properly tied down with ropes or straps. In the instant case the accident which in fact happened is only explicable in terms of a bale not having been secured in the first place, or by reason of a rope having been permitted to come loose and fall sideways off a bale;
* because of the progressive settling of bales in the course of a journey, due to vehicle motion or vibration, coupled with differential bale weights, security ties tend to loosen and they need to be retensioned from time to time during a lengthy trip.

Having so digressed I return to the main stream narrative facts.

Reiter arrived at Geelong with his full load at about noon on 19 February. He had made four stops en route and, on each occasion, checked the security of his load and the tensions on all visible straps and ropes.

About 12-15 bales were off-loaded at Geelong. These were taken from the top tier of the front of the load. The front "general" was removed for this purpose, as were some lashings on the front of the top tier. The removed "general" was rolled up and lashed across the front of the rear "general", to ensure that the latter would not lift during the onward journey.

The first unloading proceeded without incident. Reiter then drove on to Laverton, just outside Melbourne, where he was due to deliver a further 56 bales, from the top layers of his load, to a firm of wool scourers. On arrival he was directed to a level concrete area in front of a shed.

He then began to unlash the rear "general', commencing on the offside of the trailer at about the centre of it. Having undone all ties on the offside he moved to the rear of the trailer, unfastened the rear ropes and undid the rear tarpaulin folds.

Reiter then moved to the near-side and commenced to undo the tarpaulin loadings from the rear forward. As he undid a rope at a point almost up to the rear wheel a heavy bale of wool suddenly precipitated down from the top of the load at that point. It struck him on the head and knocked him to the ground. As a consequence he sustained serious personal injury.

He testified that, after the impact, he observed that the top tier of bales at the rear of the load had not been secured by a lashing and had merely been held in place by the rear tarpaulin. When the tension on that was released the unstable bale immediately fell on him. He said that, had he known that was the situation, he would not have undone the tarpaulin lashings.

At the trial counsel for the employer made strenuous efforts to discredit Reiter and suggest that the cause of destabilisation of the load had been wind getting under the rear tarpaulin between Geelong and Laverton. In effect he attempted to suggest that the load had, originally, been properly secured; and that, in some fashion, Reiter had been the author of his own misfortune, in absence of negligence on the part of his employer. A great deal of evidence was directed at various possible theses as to how it was that the bale came to fall on Reiter. However, it is fair to say that the overwhelming weight of evidence was to the effect that the bale simply could not have fallen down, as it did, if it had properly been positioned and secured in the initial process of loading.

I am abundantly satisfied, after studying all of the evidentiary material before me, that the only compelling inference remaining at the end of the trial was that, for some unknown reason (which could have been pure oversight) the rear top bales had not properly been lashed in place with security ropes as they should have been - with the result that the settling of the load in transit had caused the bale in question to become unstable and fall as soon as the tarpaulin lashings were loosened.

At trial the jury verdict was in favour of Reiter and no finding of contributory negligence was made against him. The verdict is only explicable on the basis that the jury accepted the proposition that the employer had set up an unsafe system of work by not ensuring that the load was given to Reiter in a safe, and adequately secured configuration. A dispassionate review of the evidence points, unerringly, in that direction. As the expert witness Purdey said, there is simply no other plausible explanation for what actually occurred. Moreover, it is fair to conclude that the jury may well also have concluded, on the evidence of Purdey, that the actual configuration of the bales, as loaded, was inappropriate in any event (see exhibit P1 at pp 177-178, 186).

In the result the jury returned a verdict in favour of the plaintiff for $715,000 "less $102,724.45 deducted by agreement pursuant to the provisions of the WRCA, together with $16,000 interest and costs on a solicitor/client basis".

It was a matter of undisputed history that, in May 1993, Reiter had originally commenced a civil action in South Australia asserting unsafe system of work against K & S. However, he did not resist an order striking it out on the ground that it failed to disclose a cause of action, due to the statutory bar erected by section 54 of the WRCA. The proceedings in Victoria were instituted on 11 April 1994. In that State there was no statutory bar to an employee prosecuting a common law claim for damages against an employer for unsafe system of work.

I have dwelt upon the narrative facts in this case in some detail, because it is important to gain a proper understanding of the basis on which the Victorian proceedings were prosecuted and the relevant judgment ultimately entered. Those proceedings were plainly justiciable in that State by virtue of the commission of the relevant tortious act in that jurisdiction, and also because one of the parties had the conduct of portion of its business in Victoria.

It is common ground that the disabilities sustained by Reiter in the accident were compensable pursuant to the WRCA and compensation was in fact paid to him. He is currently employed by K & S in a clerical capacity and, as appears from the terms of the Victorian judgment, all compensation payments made by WorkCover to him to date have been recouped to it. WorkCover might, of course, be called upon to make further payments of compensation if Reiter suffered further disability sequelae which attended it, dependent upon the outcome of this action.

It is also agreed that -

* WorkCover is liable to meet any common law damages payable by K & S in respect of the accident, as its insurer; and
* the vehicle driven by Reiter at the time of the accident was registered in this State and the subject of an appropriate policy of third party insurance issued pursuant to the provisions of the Motor Vehicles Act, 1959 ("the MVA").

Against the foregoing background I now turn to the relevant statutory provisions.

As at the time of the accident the provisions of the WRCA specifically excluded any potential common law damages liability on the part of an employer, in respect of a compensable disability arising from employment by that employer. Such a situation had finally been brought about by the amendment of the WRCA effected by the Workers Rehabilitation and Compensation (Miscellaneous) Amendment Act, 1992. This, inter alia, excised a pre-existing provision of the statute which had formerly expressly preserved "liability at common law for non-economic loss or solatium". It was for that reason that the civil action originally commenced by Reiter in this State was foredoomed to being struck out. The cause of action sought to be relied upon had been negated by statute.

On 19 February 1993 section 54 of the WRCA, so far as relevant, was expressed in these terms -

"Limitation of employer's liability 54. (1) Subject to subsection (2), no liability attaches to an employer in respect of a compensable disability arising from employment by that employer except -

(a) a liability under this Act; or

************

(2) Subsection (1) does not affect a liability arising out of the use of a motor vehicle, being a liability against which the employer was or ought to have been insured under the law of compulsory third-party motor vehicle insurance.

(3) A court before which an action is brought against an employer for non-economic loss arising from a compensable disability (being a disability that arises out of the use of a motor vehicle and gives rise to a liability of a kind referred to in subsection (2)) shall make due allowance for any lump sum paid or payable under Division 5 or 6 to the person by or on whose behalf the action is brought.

(4a) ...

(4b) ...

(5) ...

(6) ...

(7) ...

(7a) This section is intended to apply in relation to any action that arises out of the occurrence of a compensable disability -

(a) irrespective of where the disability occurred; and

(b) (i) irrespective of whether the action is brought before a court of this State or before a court of some other state, territory or country; and

(ii) notwithstanding that the court before which the action is brought would not (but for this subsection) apply, or take into account, South Australian law.

(7b) If -

(a) an action is brought in respect of a compensable disability in a court that is not a court of the State; and

(b) notwithstanding subsection (7a), the court awards an amount against an employer that is in excess of the amount (if any) that would have been awarded in a similar action before a court of the State, and

(c) the Corporation is liable to pay the amount awarded by virtue of insurance provided under this Act,

the Corporation is entitled to recover the excess from the person to whom the amount is awarded.

(7c) In the course of proceedings under subsection (7b) a court may -

(a) receive in evidence any transcript of evidence in proceedings before the court by which the amount was awarded and draw any conclusions of fact from the evidence that it considers proper; or

(b) adopt any of the court's findings of fact.

(8) In this section -

"damages" includes any form of compensation payable apart from this Act in respect of a compensable disability;

"employer" includes -

(a) any person for whose torts an employer is vicariously liable;

(b) any person who is vicariously liable for the torts of an employer;

"the law of compulsory third-party motor vehicle insurance" means -

(a) Part 4 of the Motor Vehicles Act 1959 (including a policy of insurance under that Part); or

(b) the law of another State or a Territory of the Commonwealth that corresponds to Part 4 of the Motor Vehicles Act 1959 (including a policy of insurance under such a law).

************"

That section fell to be read in conjunction with section 55, which was expressed as under -

"Prohibition of double recovery of compensation 55. (1) Where a disability is compensable under this Act and under a corresponding law, compensation shall not be paid both under this act and under the corresponding law.

(2) Where compensation is in fact paid both under this Act and under a corresponding law, the compensation paid under this Act may be recovered as a debt due to the person by whom it was paid from the person to whom it was paid.

(3) The fact that compensation or damages in respect of a disability have been recovered under a foreign law is a bar to the recovery of compensation in respect of the same disability under this Act."

It is necessary, first, to direct specific attention to subsection (7a) of section 54.

In essence it is the contention of WorkCover that, in the circumstances above outlined, the verdict obtained by Reiter in Victoria is, for all practical purposes, nugatory.

It is, of course, to be borne in mind that, by virtue of section 105 of the WRCA, WorkCover was taken to be the insurer of K & S in respect of any liability that might arise as against that company, apart from that statute, in respect of a compensable disability arising from the employment of Reiter by it. Accordingly, it bore the burden of the Victorian judgment based upon the asserted unsafe system of work.

It argues that, in figurative terms, having been ordered to hand over the quantum of damages awarded with its right hand, it is, nevertheless, by virtue of subsection (7a), entitled, at once, to take those moneys back from Reiter with its left hand; and that this is so whether or not any actual further monetary liability to pay compensation moneys to Reiter arises in fact; i.e., in practical terms the taking back might constitute a "windfall" to it, given its initial liability to pay as insurer of K & S.

In support of that claim Mr Walsh QC directed attention to the fact that, as is obvious, there is no dispute that, for the purposes of subparagraphs (a) and (b) of section 54(7b), it is not in contention that -

* an action had been brought in respect of a compensable disability in a court that was not a court of the State; and

* WorkCover is liable to pay the amount awarded by virtue of insurance provided under the WRCA.

He went on to submit that what had occurred in Victoria amounted to a situation that the interstate court had awarded "an amount against an employer that is in excess of the amount (if any) that would have been awarded in a similar action before a court of the State". So it was, he said, that WorkCover was entitled to recover that excess from the person to whom the amount is awarded. In aid of that argument he suggested that the words "(if any)" clearly contemplated a situation in which, as in this case, a South Australian court would have awarded nothing, because it had no jurisdiction to do so by reason of a statutory prohibition in that regard.

Whilst this is an ingenious argument, I consider that it is clearly untenable.

The primary argument advanced by Mr Tobin, of counsel for Mr Reiter, was that the argument of Mr Walsh QC based on section 54(7b) is not sustainable by reason of the fact that such provision is, having regard to subsection (2) of section 54, not applicable to the subject accident.

Distilled to the essence his contention was -

* Reiter would, by virtue of section 54(2), have had a common law right of action in South Australia for negligently inflicted injury arising from the use of a motor vehicle;
* such an action, if prosecuted, would have been a "similar action" as that in fact presented in Victoria, because the limitations imposed by section 35A of the Wrongs Act, 1936 ("section 35A") were inapplicable (subsection (7) of that section expressly excludes its applicability to accidents occurring outside this State);
* it has never been suggested that the judgment obtained in Victoria was in excess of that which would have been awarded in this State in a similar action.

As I understood him, Mr Walsh QC did not seek to challenge the validity of that line of reasoning, provided that the first assertion could be made good in law. However, he challenged that specific proposition.

It is therefore necessary to go to the applicable provisions of the MVA.

Section 102 of that statute constitutes it an offence to drive any vehicle on a road unless there is in force a policy of insurance complying with the statute. As already appears, because the vehicle driven by Reiter was registered in this State, a policy of insurance under the statute, was in force in respect of it. That policy extended to and covered relevant incidents which actually occurred outside the State. So much is not in contention between the parties.

By virtue of Schedule 4 of the MVA the statutory cover was expressed as follows -

" The insurer insures the owner of the motor vehicle and any other person who at any time drives or is a passenger in or on the vehicle, whether with or without the consent of the owner, in respect of all liability that may be incurred by the owner or other person in respect of the death of, or bodily injury to, any person caused by, or arising out of the use of, the vehicle in any part of the Commonwealth."

It is a matter of history that the words "caused by, or arising out of the use of, the vehicle" have received a fairly expansive interpretation by the courts. (See, for example, authorities such as Dickinson v The Motor Vehicle Insurance Trust (1987) 163 CLR 500; Muegel v Fast Freight Pty Ltd and Another
(1987) 45 SASR 20 ("Muegel"); Norwich Winterthur Insurance (Australia) Ltd v State Government Insurance Commission (1991) 56 SASR 165 ("Norwich").

The legislature amended the MVA in 1988, so that section 99(3) was expressed in these terms-

" (3) For the purposes of this Part and schedule 4, death or bodily injury will not be regarded as being caused by or as arising out of the use of a motor vehicle if it is not a consequence of -

(a) the driving of the vehicle; or

(b) a collision, or action taken to avoid a collision, with the vehicle whether in motion or stationary; or

(c) the vehicle running out of control."

So far as I am aware there are only two published authorities which bear on the meaning of paragraph (a) of the subsection.

The first is the decision of the Full Court in State Government Insurance Commission v Wagner (1993) 62 SASR 175 ("Wagner"). That case focused on a situation in which a four wheeled vehicle equipped with a back hoe had been driven to a work site under its own power. On arrival it was elevated on jacks, preparatory to operation of the back hoe for a digging operation. The driver reversed his seat 180 degrees from the driving position and then injured himself whilst attempting to gain access to a retaining pin to enable the hoe to be operated. It was held that the injury was not sustained as a consequence of the driving of the tractor, because there was a clear physical distinction between driving the tractor and using it as a fixed item of digging plant. The driving activity had clearly concluded at the relevant time.

The court there held that an injury may be in consequence of driving if it is immediately connected with such a function, either as preparatory to it or immediately associated with its conclusion.

As I pointed out in that case -

" It is at once to be observed that, in determining whether liability arises under the statutory cover in this case, a successive, two stage, process of evaluation necessarily arises.

In the first instance, apropos the particular fact situation, the question must be asked: "Did any relevant liability in respect of bodily injury 'arise out of the use' of the vehicle in question?' in the sense in which that phrase is used in the Schedule.

If the answer to that question is in the affirmative a second question must then be posed and answered. That question is: 'Has it been demonstrated that the bodily injury is not a consequence of the driving of the vehicle?"

It is manifest that, in the context of these proceedings, the onus lay upon the State of proving that the factual circumstances were such as, initially, to bring the situation within the scope of operation of the Schedule, ie that any relevant liability in respect of bodily injury sustained by Wagner did, indeed, arise out of the use of the plant."

I went on to comment -

" The real contention between the parties arises as to the answer proper to be given to the second question.

Although the question of onus does not loom large as a critical, practical feature of the instant case, it seems to me that, on well-settled principle, the party who positively asserts the application of subs (3) of s 99 of the MVA to a particular fact situation - once an affirmative response is given to the first question - necessarily accepts the onus of establishing the contention. The subsection is essentially an exclusionary provision. In the case at bar SGIC bears that onus."

Wagner established the concept that what is contemplated by the section is something more than a mere temporal connection with a physical act of driving. There must, in a real sense, be a direct and proximate relationship of cause and effect between the act of driving and the injury in question. As I there pointed out, the concept of driving is clearly sufficiently broad to encompass ancillary activity such as acts preparatory to the use of controls to direct the movement of the vehicle, or to acts necessary to make a vehicle safe and secure at the end of a journey.

The word "consequence" imports yet a wider nexus with the direct act of driving. I think that the Solicitor-General (as he then was) was plainly correct when, in Wagner, he submitted that, as I there summarised his argument -

"It basically connotes an end effect or result: 'a thing that follows as an effect or result from something preceding' (Shorter Oxford Dictionary). Thus, he contended, a consequence is an event which can occur either whilst a vehicle is actually being driven, or it can occur after that function has concluded, but as a result of it - in the sense that it was a direct effect or conclusion stemming from the action of driving (see Shorter Oxford Dictionary definition of 'result')."

The reason why the plaintiff failed in Wagner was that the activity which led to injury, simply did not fit that description. The injured worker had plainly embarked on an activity which was distinctly separate and quite divorced from the prior driving activity. Moreover the earlier driving had only taken place as a mere preparatory act to the primary mode of operation of the equipment.

The second authority, Heath v Corporation of the City of Tea Tree Gully and Anor (1996) 66 SASR 548 ("Heath") was a borderline case, as the dissent in the Full Court readily revealed.

Once again a mobile item of plant was involved - a front end loader. At the time of injury the loader was stationary with the drive to its wheels disengaged. Heavy slabs were being loaded manually into the bucket. The plant operator manipulated the bucket in a fashion which precipitated the injury. All members of the court acknowledged that section 99(3) contemplated a necessary causal connection between the act of driving and the relevant injury. The majority concluded that, on the facts, the loading operation and the injury resulting from it was quite separate and divorced from the prior act of driving and in no sense derived, in any proximate fashion, from it. It had nothing, as such, to do with that function.

Prior J was unable to share that view, because he felt that the loading of the bucket was part and parcel of the inherent function of what was a mobile front end loading operation, even although the plant was not actually in motion at the time. The loading and driving functions of the particular item of plant were inherently integrated and could not, he felt, logically be separated. However, that view did not prevail.

When one comes to test the facts in the instant case against the rationale of Wagner and Heath it is at once apparent that this, also, was a borderline case.

It may fairly be said that the mere act of unhooking the rear "general" was a function end-on to, but not a consequence of, the prior driving of the vehicle, in the relevant conceptual sense. However, the cause of the accident which occurred was a situation to which the unloading was merely peripheral.

What had destabilised the load was the settling of the bales due to the motion of the driven truck, operating in conjunction with the relative bale weights, so that, in absence of effective securing straps or ropes, a bale simply fell off the moment that the tarpaulin tension was released. The real causative element was not the release of the tension per se, but the destabilisation of the bales due, in a causally significant fashion, to the driving of the vehicle and the consequent distortion of the load.

If one accepts the concept that the accident came about as a direct effect stemming from the act of driving the vehicle, as I consider it did, then I consider that it may properly be said that the injury sustained was, in the legal sense, a consequence of the driving of the vehicle in question. Both of the authorities above cited recognise that the injury does not have to be the direct and immediate result of putting a vehicle into motion - it merely needs to be a direct and proximate result of the driving function, in a manner in which the types of loading and unloading actions discussed in Muegel and Norwich would not be.

In my opinion the primary contention advanced by Mr Tobin must be upheld. It seems to me that the preoccupation of Mr Walsh QC with the distinctions which loomed paramount in Wagner and Heath really miss the point. Here, it was not the end-on activity preparatory to unloading, per se, which caused the accident, but rather the causal effect on the load of the prior driving function. If Mr Walsh QC is correct it is difficult to perceive how, once a driver stepped out of the cab of a vehicle and closed the door, any subsequent incident could be said to be within the section. His narrow approach would virtually negate the ordinary meaning of the word "consequence", as connoting a causative effect.

Adopting the two-stage test adverted to in Wagner, the first step is clearly made out on the authorities such as Muegel, Norwich and Dickinson. WorkCover has been unable to discharge its onus as to the second - as to which the evidence patently discloses the necessary direct and proximate causative relationship.

If I am in error in the above conclusion then it is necessary to address an alternative contention advanced by Mr Smith, also of counsel for Reiter.

As already emerges, it is necessarily inherent in the language of paragraph (b) of section 54(7b) of the WRCA that, before the statutory provisions therein expressed can become applicable, it must be made apparent that there is, in truth, a situation in which some relevant amount could properly have been awarded "in a similar action before a court of the State". As Mr Smith stressed, the situation which existed at the relevant time was that, because the statute had effectively abolished any possible common law cause of action against K & S at the instance of Reiter, it would have been quite impossible for a "similar action" to have been prosecuted. As he emphasised, it was for that very reason that the initial South Australian action had been dismissed as incompetent. So it was that counsel asserted that the circumstances postulated by subsection 54(7b) had not been shown to exist. There had to be a real possibility of a similar cause of action and not merely some "notional" or hypothetical proceeding.

As I understood Mr Smith, he contended that, in any event, the expression "(if any)" contained in paragraph (b) was intended to relate to the relevant excess and not to the "amount".

In response to a submission by Mr Walsh QC to the effect that such a construction would leave little, if any, work for subsection (7b) to do, Mr Smith suggested that it was actually little more than a relic of the pre-1992 scheme, in which rights to prosecute a similar action for non-economic loss still existed. It was a possible scenario to which paragraph (b) of subsection 7(b) had had direct practical application. Further, he submitted that the result contended for by him works no injustice to WorkCover, because not only has it already recouped past compensation paid by it, by deduction from the common law damages award, but also Reiter is now debarred, by that award, from making any further claim for compensation under the WCRA. As to this he directed attention to section 55(3) recited above. There is, thus, no possibility of double compensation.

Although Mr Walsh QC argued strenuously to the contrary, I consider that the line of reasoning pursued by Mr Smith is unanswerable. The situation before me is simply not that postulated by section 54(7b) of the WCRA and the words "(if any)" cannot fairly be relied upon to salvage WorkCover's argument. The statutory provision clearly directs its attention not to some mere fiction, but to the possibility of actual prosecution of a real and "similar" action. There is no "similar" action possible - such a possibility is expressly denied by the statute itself. As Mr Smith fairly put, before paragraph (b) of section 54(7b) can be applied it must also be possible to identify some notional amount "that would have been awarded" before any comparison can be made. The suggestion that the phrase "(if any)" overcomes that requirement would be to erect a farcical situation and negate the obvious conceptual approach inherent in the language employed.

Moreover, if my reasoning as to the primary contention on behalf of Reiter is incorrect, then, having regard to the provisions of section 35A(5) of the Wrongs Act, 1936, no other form of action would be maintainable pursuant to that statute.

It follows then, that, on any view, the claim by WorkCover in these proceedings to relevant declaratory relief based on section 54(7b) of the WRCA must fail.

That claim must therefore be dismissed.