WorkCover v Reiter No. Scgrg-97-204 Judgment No. S6457

[1997] SASC 6457

WORKCOVER CORPORATION V REITER

Full Court Coram:  Doyle CJ, Lander & Bleby JJ

LANDER J

History

This is an appeal from a decision of a Judge of this Court in which he dismissed an action seeking a declaration and a sum of money brought by the appellant against the respondent.

The appellant is a body corporate and was constituted at the relevant time pursuant to s7 of the Workers Rehabilitation and Compensation Act (the Act).

The respondent was employed as a driver by K & S Freighters Pty Ltd a company incorporated in this State and which carried on business as a carrier at Mount Gambier in the State of South Australia and in Western Victoria.

On 19 February 1993 the respondent in the course of his employment was struck by a bale of wool which fell from a truck owned by his employer which he had been driving on that day.  As a consequence he sustained injuries to his head, neck and left shoulder.  The incident occurred at Laverton in the State of Victoria.

The injuries which the respondent suffered gave rise to a disability which was compensable under the Act because they arose out of his employment.  In discharge of its liability pursuant to s46 of the Act the Corporation made payments of compensation to the respondent totalling $102,724.45.

On 28 May 1993 the respondent issued proceedings out of the District Court against his employer K & S Freighters Pty Ltd claiming that he suffered personal injury by an accident arising out of or in the course of his employment which injuries were caused by the negligence and breach of statutory and/or other duties of the appellant, its servants or agents. In the alternative the respondent claimed that he had sustained the personal injury as a result of an accident arising out of the use of a motor vehicle owned by the employer. He claimed against his employer for “damages for non-economic loss pursuant to and to such extent as is permitted by section 54 of the Workers Rehabilitation and Compensation Act 1986 (as amended) ”. He claimed damages in the sum of $100,000 interest and costs.

The employer filed a defence in which it denied any negligence or breach of statutory duty or any other duty and claimed that the respondent had been guilty of contributory negligence.  In respect of the alternative plea the employer denied that the injuries arose out of a motor vehicle.  Further it claimed that the respondent’s claim was statute barred “by virtue of the operation of s22 of Workers Rehabilitation and Compensation (Miscellaneous) Amendment Act 1992. Lastly it claimed that, if the respondent was entitled to damages, then the respondent was entitled only to damages for non economic loss as limited by s54 of the Act.

Shortly thereafter the employer applied to have the respondent’s claim struck out on two grounds. First on the ground that the amendment to which it referred in its defence operated from 3 December 1992 so as to preclude any worker from claiming any damages for personal injuries suffered in an industrial accident except personal injuries caused by or arising out of the use of a motor vehicle as provided for in s54(2) of the Act. Secondly it claimed that the respondent had instituted proceedings in the Supreme Court of Victoria at Warrnambool claiming damages for personal injury and that the pleadings in that action disclosed the same cause of action as the action in the District Court and that it was an abuse of process for the respondent to proceed in two jurisdictions with respect to the same incident.

On 15 November 1994 an acting Master of the District Court struck out the respondent’s claim for both the reasons advanced by the employer in its application. That is to say the acting Master held that s54 precluded any claim for damages for personal injuries arising out of an industrial accident except a liability for personal injuries arising out of the use of a motor vehicle. He further held that the pleadings did not bring this within a claim for personal injuries arising out of the use of a motor vehicle. He dismissed the respondent’s claims.

On 11 April 1994 the respondent commenced proceedings in the Supreme Court of Victoria at Warrnambool against his employer.  He claimed in those proceedings that on 19 February 1993 he suffered personal injuries as a result of the negligence or breach of duty of his employer its servants or agents when he was struck by a bale of wool which fell from a truck at Laverton in the State of Victoria.

It is a curious pleading.  Whilst it identifies the relationship of employer and employee it does not specifically claim that the employer owed to the respondent any particular duties.  The particulars of negligence and breach of duty do suggest however such a duty.  The pleading does not suggest that the respondent’s injuries were caused by or arose out of the use of a motor vehicle.  One, however, would not expect such a pleading because the fact that the respondent’s injuries were caused by or arose out of the use of a motor vehicle would not, in the circumstances of this accident, give rise to a cause of action against the employer.

K & S Freighters Pty Ltd filed a defence in those proceedings in which it denied that it was guilty of negligence and/or breach of duty whether statutory or otherwise and again pleaded contributory negligence.

Apparently the employer did not claim in its original defence that the respondent was in any way precluded by the Accident Compensation Act (Victoria) from bringing the claim because the respondent’s injuries were caused by or arose out of the use of a motor vehicle.   That Act limits claims that can be brought for damages for personal injuries caused by or arising out of the use of a motor vehicle.  There was an application to amend the defence at trial to raise such a plea but the application was refused.  The employer has appealed to the Court of Appeal in Victoria against the refusal to allow amendments to the defence, but the appeal has not yet been heard.

The respondent’s claim went to trial before a Judge and civil jury.  The employer was found liable to the respondent and the jury assessed the respondent’s damages at $715,000 and judgment was entered for the respondent against the employer for $715,000 “less $102,724.45 deducted by agreement pursuant to the provisions of the Workers Rehabilitation and Compensation Act, together with $16,000 interest and costs on a solicitor client basis”.

At or about the same time as those proceedings were being heard and shortly before judgment was entered in those proceedings, these proceedings, the subject of appeal, were brought by the appellant against the respondent.

In these proceedings the appellant has claimed:

“1..... A declaration that the plaintiff is entitled to recover from the defendant such sum of money as he may be awarded by way of damages and interest in Action Number 1351 of 1994 in the Supreme Court of Victoria.

2...... Alternatively judgment against the defendant for such sum of money as may be awarded to him by way of damages and interest in Action 1351 of 1994 aforesaid.”

The action referred to in the relief sought is the Victorian action which proceeded to trial before a Judge and jury and in which judgment was entered.

The proceedings were issued in this Court shortly before judgment was given and in those circumstances the appellant was not able to identify the precise sum of money which it sought from the respondent and thus sought the declaration and the open ended sum in paragraph 2.

The Act

By reason of the provisions of the Act the respondent had an entitlement to compensation for medical expenses and income maintenance by way of weekly payments and other compensation under the Act and the appellant had a corresponding liability to make those payments.  As at the date of issue of these proceedings the respondent still had a right to expect payments of compensation upon establishing a disability at any time and consequent incapacity arising out of this incident and the Corporation had an ongoing liability to make payments.

As at 19 February 1993 s54 of the Act relevantly provided:

(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 V or VI to the person by or on whose behalf the action is brought.

(4a)  .........

(4b)  .........

(5)    .........

(6)    Where—

(a)a compensable disability arises out of the use of a motor vehicle;

(b)the employer was or ought to have been insured against liability for the disability under the law of compulsory third-party motor vehicle insurance;

(c)compensation is paid or payable by the Corporation under this Act in respect of the disability,

the Corporation is entitled to recover the amount of the compensation in accordance with subsection (7).

(7)    Where—

(a)compensation is paid or payable to a person (“the injured party”) under this Act;

(b)the injured party has received, or is entitled to, damages from another person (“the wrongdoer”) in pursuance of rights arising from the same trauma as gave rise to the rights to compensation under this Act;

(c)the person by whom the compensation is paid or payable under this Act (“the claimant”) is entitled to recover the amount of the compensation by virtue of subsection (5) or (6),

then the following provisions apply:

(d)the claimant is entitled to recover the amount of compensation paid or payable under this Act from the wrongdoer or the injured party but subject to the following qualifications:

(i)no amount may be recovered from the wrongdoer in excess of the wrongdoer’s unsatisfied liability to the injured party;

(ii)the claimant must exhaust its rights against the wrongdoer before recovering against the injured party; and

(iii)no amount may be recovered from the injured party in excess of the amount of the damages received by the injured party;

(e)the claimant shall, on giving notice to a wrongdoer of an entitlement to recover compensation under this section, have a first charge, to the extent of the entitlement, on damages payable by the wrongdoer to the injured party;

(f)any amount recovered by the claimant against a wrongdoer under this subsection shall be deemed to be an amount paid in or towards satisfaction of the wrongdoer’s liability to the injured party;

(g)an action for the recovery of compensation under this subsection—

(i)may be heard and determined by the Industrial Court; and

(ii)must be commenced within 3 years after the date of the trauma referred to in paragraph (b).

(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;

(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 IV 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 IV of the Motor Vehicles Act 1959 (including a policy of insurance under such a law).”

Clearly enough by reason of s54(1) and 54(2) no liability attached to an employer in respect of a compensable disability arising from employment unless that liability arose 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. The motor vehicle from which the bale of wool fell was insured pursuant to Schedule 4 and Part IV of the Motor Vehicles Act against any liability that the employer or the driver of the motor vehicle might incur for personal injury, loss or damage.  Therefore no claim could have been successfully brought by the respondent against his employer in this State for any damages whatsoever arising out of the incident of 19 February 1993 unless the respondent could have established that his injuries were caused by or arose out of the use of a motor vehicle.

The Arguments

The action which had been brought in the District Court had to be dismissed unless the respondent could establish that his injuries were caused by or arose out of the use of a motor vehicle.  On the pleadings as they were presented to the acting Master, he concluded that no such claim arose and therefore that the employer was under no liability to the respondent under the Act.

However the respondent suffered his injuries in Victoria and therefore the Supreme Court of Victoria had jurisdiction to hear his claim for personal injury. It was common ground before the learned Trial Judge and before this Court that the Supreme Court of Victoria was not precluded, by the provisions of s54, from assessing the respondent’s damages at common law and entering judgment for whatever amount was appropriate at common law. It was not argued in the Victorian Supreme Court that by reason of s54(7a) the provisions of s54 operated to limit the respondents’ damages and so oblige the respondent to establish that he came within the provisions of s54(2). That point was not argued in that Court, nor was the subject of argument in this Court and does not fall to be further considered.

The appellant claimed however that it was entitled to rely upon the provisions in s54 (7a), s54 (7b) and s54 (7c) to recover the amount which the Supreme Court of Victoria had ordered the employer to pay.

It claimed that the respondent had brought an action in respect of a compensable disability in the Victorian Court which was a court not a court of this State (s54 (7b) (a)).  It further said that notwithstanding ss (7a) the Supreme Court of Victoria had awarded an amount against the employer that was in excess of the amount (if any) that would have been awarded in a similar action before a court of this State (s54 (7b)).  It further claimed that it was liable to pay the amount awarded by virtue of insurance provided under the Act (s54 (7b) (c)). 

In support of the third proposition that it was liable to pay the amount by virtue of insurance provided under the Act it pointed to s105 of the Act which provided at the relevant time:

(1)An employer who is registered under this Act, and any employer who is not required to be registered because of an exemption under the regulations, is insured by the Corporation, subject to terms and conditions prescribed by regulation, against any liability that may arise apart from this Act in respect of a compensable disability arising from employment (being employment to which this Act applies) by the employer.

(2)Where an employer participates in the provision of a rehabilitation programme under this Act, and in consequence of that participation provides work for a person who is not a worker employed by that employer, that person will be taken to be in the employment of the employer for the purposes of subsection (1).

(3)The insurance provided by subsection (1) does not extend to an exempt employer except in relation to persons of the class referred to in subsection (2).”

The Corporation claimed that s105 obliged it to indemnify the employer in respect of any liability that might arise apart from the Act in respect of a compensable disability arising from employment and that therefore it had satisfied the third condition.

In all those circumstances the appellant claimed that it was entitled to recover the excess from the person to whom the amount was awarded.

There was no argument in relation to the first and third matters.  The respondent resisted the appellant’s claim on two grounds in relation to the second matter.

First it claimed that circumstances giving rise to the injuries and the compensable disabilities imposed upon the employer a liability arising out of the use of a motor vehicle and that therefore s54(1) played no part in relation to that claim. It argued that the amount awarded by the Supreme Court of Victoria against the employer was not, in those circumstances, in excess of the amount that would have been awarded in a similar action before a court of this State. Therefore it claimed that the Corporation had no right to recover the award under s54 (7b). In putting that argument it claimed that the award of damages made in Victoria was no greater than that which would have been arrived at in South Australia because the accident happened in Victoria and the provisions of the Wrongs Act limiting damages for claims for personal injuries would have no application in an assessment of damages.  (See s35A(7) of the Wrongs Act).

It was common ground between the parties that if the incident was one which arose out of the use of a motor vehicle as provided for in s54(2) of the Act then the Corporation was not entitled to recover any sum, apart from the compensation paid to the respondent (for which credit had already been given).

If the respondent’s personal injuries and compensable disability had been caused in circumstances arising out of the use of a motor vehicle then the Act specifically provides that the liability for such continues against the employer and thus it could not be said that the Supreme Court of Victoria has awarded an amount against an employer which was in excess of the amount that would have been awarded in a similar action before a court in this State.

Moreover there is another reason why the Corporation could not recover in those circumstances and that is I think because the Corporation would not be liable to pay the amount “by virtue of insurance provided under this Act”. The employer would in fact be entitled, pursuant to Part 4 of the Motor Vehicles Act, to claim against the compulsory third party insurer, the Motor Accident Commission, for indemnity against the claim and judgment. 

Secondly the respondent argued that even if his personal injuries and compensable disability had been caused otherwise than arising out of the use of a motor vehicle the Corporation was still not entitled to succeed because the award made by the Supreme Court of Victoria was not an amount in excess of the amount if any that would have been awarded in a similar action before a court of this State, because s54 in its amended form, as at 19 February 1993, did not allow for a similar action to be brought before a court of this State. It was argued that s54 in its original form allowed a worker to claim damages for non economic loss arising out of the negligence or breach of duty of the worker’s employer but that right had been extinguished by the amendment in s16 of the Workers Rehabilitation and Compensation (Miscellaneous) Amendment Act 1992.  It was argued that thereafter except in the circumstances where the worker suffered personal injuries and a compensable disability arising out of the use of a motor vehicle a worker had no right of action whatsoever against the worker’s employer in respect of any breach of duty howsoever arising.  Therefore it was said the amount of the award was not in excess of the amount that would have been awarded in a similar action before a court in this State because no similar action then existed.

The Proceedings Before The Learned Trial Judge

When the matter came before the learned Trial Judge the parties agreed that he could proceed in accordance with s54(7c) of the Act and he received as evidence the transcript of evidence taken before the Judge and jury in Victoria. Being a jury trial, of course, he did not have the advantage of any reasons for why the court and in this case the jury reached the conclusion which it did. He was therefore obliged to consider the evidence for himself to determine how the jury arrived at its verdict. In its consideration, of course, the jury was not called upon to consider whether the personal injuries arose out of the use of a motor vehicle. In so far as liability was concerned the jury was only obliged to determine whether there had been a breach of duty, however it arose, on the part of the employer to the respondent.

The learned Trial Judge was therefore obliged to determine for himself upon the evidence presented to the Victorian Court whether the breach of duty of the employer arose in circumstances arising out of the use of a motor vehicle.  In those circumstances he was obliged to reach a conclusion upon evidence which was not directed to the issue before him.  However neither party sought to adduce any further evidence and both were content to rely upon the evidence before the Victorian Supreme Court.

The learned Trial Judge concluded in relation to the first matter:

“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 secure 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 have also concluded, on the evidence of Purdey, that the actual configuration of the bales, as loaded, was inappropriate in any event (see exhibit P1 at pages 177-178, 186).”

He then considered the question of whether or not those circumstances gave rise to a finding that the respondent’s injuries arose out of the use of a motor vehicle and said:

“What had destabilised the load was the settling of the bales due to the motion of the driven truck, operating in conjunction with the relevant 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 injuries sustained was, in the legal sense, a consequence of the driving of the vehicle in question.”

In those circumstances he found that the appellant was not entitled to recover under s54(7b) because the appellant could not establish that the award made against the employer in the Supreme Court of Victoria was in excess of the amount that would have been awarded in a similar action before a court of this State.

Whilst it was not strictly necessary for him to do so he also considered the alternative argument put by the respondent and concluded that that argument was unanswerable and that, because there was no possibility of any similar action, s54(7b) did not apply to the circumstances of this case.

The Appeal

The appellant challenges a number of aspects of His Honour’s decision.  First it claims that the learned Trial Judge erred in concluding that the liability arose out of the use of a motor vehicle.  In challenging that conclusion the appellant complained about the finding that the settling of the load in transit had caused the bale of wool, which hit the respondent, to become unstable and fall as soon as the tarpaulin lashings were loosened from the trailer.

The appellant further complained that the Trial Judge erred in deciding that the appellant had the onus of proving that the injury did not arise as a consequence of the driving of the vehicle and that it had failed to discharge the onus of proof.

In respect of the alternative argument advanced by the respondent which the learned Trial Judge also accepted, the appellant complained that the learned Trial Judge erred in finding that the respondent was unable to bring a similar action within the meaning of s54(7b).

The Facts

The respondent was usually employed in his employer’s depot at Mount Gambier.  In February he was instructed to drive a Mercedes Benz Prime Mover and to tow an unladen trailer from Mount Gambier to his employer’s depot at Portland in Victoria to leave the trailer at that depot and to exchange it for a trailer which he was instructed would be fully laden with bales of wool and to deliver those bales of wool to various consignees throughout Victoria.  In the very early hours of 19 February 1993 he drove the Prime Mover and the unladen trailer to the Portland Depot and in compliance with his instructions he exchanged the unladen trailer for a trailer fully laden with bales of wool.  Before departing Portland he checked the load which was almost fully covered by tarpaulins except that they did not fully extend to cover the bottom layer of the bales of wool.  The trailer was a flat top with steel gates at each end.  126 bales of wool were loaded on the trailer stacked four high.  The bottom layer and the layer above it had thirty-four bales with two rows on each level.  The third layer comprised thirty-two bales which were stacked lengthwise along the trailer three abreast.  The top level consisted of twenty-six bales in two rows, fourteen on one side and twelve on the other.  The bales on the top level had been turned so that some were longways and some were crossways.

The gates on either end of the trailer held the first two rows of bales in position.  The third and the fourth tiers of bales of wool were above the height of those gates.

The trailer had been loaded by a Mr Andrew Pye who was employed by K & S Freighters Pty Ltd as a driver.  The trailer had been loaded at three different wool stores to which Mr Pye had taken the trailer for the purpose of receiving the bales of wool.

The bales of wool were loaded by fork lift under Mr Pye’s supervision.  The load was completed at Dalgety’s Wool Store which is about five kilometres from K & S Freighters Pty Ltd’s depot.  Before he left Dalgety’s Wool Store Mr Pye tied the load down although he did not at that time put tarpaulins over the load.  He was thus able to say, in his evidence, that all of the load must have been tied down, because it would have been impossible for him  to drive from Dalgetty’s Wool Store to the depot without losing any bales of wool which had not been tied down.  If Mr Pye’s evidence is to be believed and indeed senior counsel for the respondent in this appeal asserted it should be, then clearly all of the bales of wool were tied down prior to the tarpaulins being placed over them.

When he returned to the depot he checked the ropes and straps to make sure they were appropriately tight and then placed the tarpaulins over the load.

The respondent drove to Geelong.  He had four stops between Portland and Geelong, stopping at Tyrendarra, Yambuk and Port Fairy and lastly at Camperdown. 

He said on each of the occasions that he stopped he checked the webbing and ropes and the tarpaulins for any movement or loosening of the bales.

At Geelong he removed the front general, i.e. the tarpaulin, and unloaded twelve or fifteen of the bales of wool with the use of a fork lift.  He then replaced the front tarpaulin which now covered the third row on the front.  The second general, the tarpaulin at the rear of the trailer, covered the four rows which remained on at the rear of the trailer.  He then drove from Geelong to Laverton just outside of Melbourne where he intended to unload approximately fifty-six bales of wool.  He arrived at Laverton at about 1.30 in the afternoon and positioned his truck for the unloading.

The respondent’s evidence was that whilst he was at the back of the trailer and undoing the general rope a bale of wool fell and hit him on the head.  The bale fell immediately after he undid the “general rope”.

He said that he inspected the load after he was struck by the bale of wool.  He said there were no ropes or anything holding the fourth tier of the bales of wool.  The third tier was strapped down with webbing and there were ropes over the third tier but there was no rope over the fourth tier.  He said it was being held by the tarpaulin.  

The respondent was vigorously cross examined but did not resile from his evidence in chief where he had said that the first three tiers of the bales of wool were securely strapped down but that the fourth tier, at least the back section, which was being unloaded at Laverton was not roped down and was only held in place by the tarpaulin.  The respondent did concede that there were ropes over the front half of the load and he had noticed those ropes in position at the time that he unloaded the twelve to fifteen bales at Geelong.

His evidence of course was inconsistent with that of Mr Pye. 

It was suggested to the respondent in cross examination that there were two reasons why this bale of wool may have fallen.  The first was because of the respondent’s failure to properly replace the front tarpaulin after unloading at Geelong.  It was put to him that it was important that the load be covered completely by tarpaulins.  The front tarpaulin needed to overlap with the back tarpaulin to prevent wind getting in under the tarpaulins.  It was put to him that after unloading at Geelong he did not replace the front tarpaulin so as to protect the rear tarpaulin.  That allowed wind to get in under the rear tarpaulin.  It was put to him that he then travelled at speeds in the order of 100 kilometres per hour which would have allowed a considerable amount of wind to get in under the tarpaulin and de-stabilise the load.

It was specifically put to the respondent that the wind factor would cause the bales to move and the load to be loosened.  He was asked:

“Q.... Mr Reiter, you’ll agree, would you not, that if the wind could get under that tarpaulin then the force it would build up under that tarpaulin, driving at 100 kilometres an hour, could easily loosen a bale however well it was tied down, couldn’t it? ---

A...... If it was left the way it is there, straight - straight out towards the front, you will certainly grab some wind, yes.

Q..... And enough to loosen a bale of wool underneath, wouldn’t it?

A...... On this occasion, no.

Q..... Why not?

A...... Because I folded the front of the tarpaulin over the fourth tier of bales.”

Q..... Are you saying you fixed it so as the wind couldn’t get in?  What I’m putting to you is, if the wind could get in then that would be enough to explain how this bale fell off, wouldn’t it?

A...... ---No, it wouldn’t.

Q..... 100 kilometres an hour winds can blow house roofs away but they can’t move a bale of wool, is that what you’re telling us?

A...... ---Well, the bale of wool fell off because it wasn’t tied up.”

Later it was put to him in cross examination that an alternative explanation for why the bale of wool fell was that while he was untying the tarpaulin ropes down the length of the rear tarpaulin he inadvertently untied the ropes securing the top load.  Mr Reiter would not accept that as a possibility.  He repeated that the reason the bale of wool fell was that there was no securing rope.

Near the conclusion of cross examination it was suggested to the respondent that each time he tightened the straps on each of the occasions that he stopped to inspect the load they would tighten against the bales and cause them to round off.  That would allow, so it was suggested to him, the bale on top to slip out sideways and put a bulge in the tarpaulin.

I think it fair to say that the respondent acknowledged that that could have occurred but his acknowledgment did not carry with it an acceptance that there was any possibility that the fourth tier was properly secured.

Ronald Judd who worked as a fork lift driver at Greenfields Wool Scourers at Laverton was called on behalf of the respondent.  He said he was walking out of a door when he saw the respondent at the rear left hand side of the trailer undoing tarpaulin ropes and while the respondent was doing that a bale came from the top layer of the trailer and hit the respondent on the head and knocked him down.

He said that he later took the tarpaulin off the load but saw no ropes on the top tier although the third tier was strapped and tied.  Apart from the absence of ropes over the third layer the trailer was loaded in the same manner as all trailers of that kind for carrying bales of wool.

In cross examination he agreed that it was unsafe to drive a trailer with a load of wool with only the back tarpaulin in place because of wind pressures which might cause the load to shift.  He agreed that it was only safe to drive a trailer with such a load with both tarpaulins on or neither tarpaulins on.

He was cross examined on a previous statement which he had made.  It was suggested to him that in that statement he had said the load was adequately secured by ropes.  It was also put to him that his only criticisms had been of the respondent in failing to have the front general on the load and in failing to keep his eye on the load at the time he was untying the tarpaulin.  His evidence became unsatisfactory.

He was asked only one question in re-examination by Mr Meldrum and that was:

“Could this accident have occurred had the bale that fell been properly tied.

A      If it was properly tied, it would not have happened.”

It is difficult to say what a jury would have made of Mr Judd’s evidence.  It is clear enough that the evidence he gave in Court was inconsistent with a statement which he had previously given.  However he was not prepared to acknowledge that the previous statement was accurate.  His evidence in the trial was simply that this bale fell because the bale was not properly secured.

Again his evidence was inconsistent with Mr Pye’s.

The respondent called a Mr Purdey, a consulting engineer who had been retained by the solicitors acting for the respondent to investigate the reasons for the bale falling.  He gave extensive evidence of the dimensions of wool bales and the usual method of loading a trailer such as the one employed on this occasion.  He also gave evidence of the material out of which wool bales are manufactured.

He was asked as to the safe method of loading:

“Q.... What would you recommend as to the safe method of loading that 1850 mil width on the 2.25?

A...... Well, it is important to have the bales indented in from the edge of the load for the reason that when wool bales are stacked four high, then the weight on the bottom bales in the stack becomes quite heavy, and that means then that there’s the chance that bales in the stack will be compressed and the stack will become unstable.  Certainly if wool bales are stacked four high in a wool store, for example, then its known that the lower bales can compress and cause the stack to fall over so that the logical thing to do would be to move those front bales in board on either side, as far as possible.”

He was asked further:

“Q     With a load such as wool, were the stops that Mr Reiter explained to you that he undertook, I think some four stops, were they something that you would expect a driver to do if they were carrying wool as far as checking and re-tightening?

A      Yes, its normal safe practise that a driver would stop some distance out from where he has commenced his journey with wool because it does tend to compact somewhat and to settle during motion and so it is normal for a driver, say 100 kilometres out, to stop and to check the lashings and ropes and to pull them down tighter if required.”

He was asked further:

“QFrom your experience and knowledge as a mechanical engineer, what do you see as the problems of carrying bales in that manner?

A The main problem I see is that with movement of the vehicle and the act of driving the vehicle over some distance, that it will be natural for the load to settle somewhat, depending on the softness of the bales lower in the stack and that with the tightening I believe on two occasions as the journey was undertaken, that there would be some rounding out of the load at the top due to the tension in the straps and the settling of the bales.”

His evidence was that the effect of rounding off on the lower bales would make the higher bales tend to slide off and to fall unless they were properly secured.  He said in this case if the top bales had been tied properly there would be no danger of the bale falling as the tarpaulin was undone.

He was asked:

“Q.... From your investigation of this accident, taking into account that the bale fell as the tarp was being undone at the back of the left hand side, was there any other explanation that you can give for that bale falling other than it being unroped.

A...... No.”

In cross examination Mr Purdey was not prepared to admit that the accident could have happened other than in circumstances where the top tier bales were not properly tied down.  He said that the bale fell because it was not tied down and due to settling and tightening of the load it was on a slippery slide.

Particularly, he was not prepared to accept the possibility that the load became unstable as a result of failing to reposition the front tarpaulin allowing wind to get under the back tarpaulin.  In respect of that theory he said that if the bale had been properly stacked on the back of the truck the wind getting in under the tarpaulin would not cause that bale to fall.

The employer called Mr Pye who gave evidence that he did load the vehicle and that there was no doubt that when the loading was completed the top tier was properly tied down.  He said that there was no possibility that the top tier had not been tied down because otherwise he would not have been able to drive the trailer the five kilometres from Dalgety’s Wool Store.  If the top tier had not been tied down the bale simply would have fallen off at that stage.

He was cross examined as to how he tied down the load.  He agreed that if a bale was properly secured it could not fall and if a bale had fallen it must mean that the ropes securing the bale had moved off the bale for some reason.  He was asked:

“Q     Bales don’t fall off loads that are properly tied, do they?

A      No they don’t.

Q     They don’t?

A      No.”

The employer also called another of its employees, a Mr Godfrey, who was employed as a truck driver.  He also said that if this bale had a rope on it, it would not have fallen off.

The jury concluded that the employer had been guilty of a breach of duty.  It is not possible to know exactly what breach the jury fixed upon but it would be difficult to see that the jury would have arrived at a verdict against the employer which was not as a result of the employer failing through its servants or agents to properly load the trailer.

Mr Meldrum QC who led for the respondent on this appeal argued that the jury would not have concluded that the bale had never been tied on.  He said that Mr Pye was an honest witness and would have been accepted by the jury.  In those circumstances the jury must have concluded that the top tier was tied on but that some time during the trip from Portland to Laverton the load moved and when the rope was released the bale was in a precarious position and fell.

If the jury rejected the suggestion that the top tier was never tied on then to have found the employer guilty of negligence the jury must have concluded that the load was inadequately tied.  The evidence of all of the witnesses was that this bale of wool would not have fallen if it had been properly tied on. 

I think the end result of the verdict of the jury is that the jury either disbelieved the evidence of Mr Pye and concluded that the bale of wool fell because it was never tied on and was only supported by the tarpaulin between Portland and Laverton or alternatively the jury concluded that this particular bale of wool was inadequately tied down. 

Whichever conclusion the jury came to, the fact of the matter is that at no time prior to commencing the driving did the bale of wool fall.  It was stable when Mr Pye placed the tarpaulins over the load at the Portland depot.  It has to follow that the bale moved sometime between the start and the end of the journey.  That has to follow because at the start of the journey it did not fall and at the end of the journey it did fall.  At some time during the journey then the bale of wool moved to a position where on the removal of the tarpaulin and perhaps one of the ropes the bale was in a position where it would immediately fall.

The explanation for the movement of the bale on the trip is clear enough.  The load would have shifted either due to wind forces operating under the tarpaulin or alternatively due to settling of the bales themselves.  I think it has to follow therefore that either by reason of wind over the load or by the motion of the trailer during the journey the bale of wool moved to a position where it was capable of falling.

A Liability Arising Out Of The Use Of A Motor Vehicle

The respondent argued that in those circumstances the liability which arose against the employer arose 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.

This vehicle was insured pursuant to Part IV of the Motor Vehicles Act 1959.

That Act provides for a scheme of compulsory third party insurance and for the approval of insurers to offer that insurance.  There is in fact only one approved insurer in South Australia and that is the Motor Accident Commission.

The Act provides that a person must not drive a motor vehicle on a road unless a policy of insurance complying with Part 4 is in force in relation to the vehicle (Section 102). A policy of insurance must insure the owner of the motor vehicle and any other person who at any time drives or who is a passenger either 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 (s104).

The policy of insurance is contained in Schedule 4 of the Motor Vehicles Act.  It reads:

“1..... 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.

2...... A person so insured warrants that he or she will not—

(a)drive the vehicle, or do or omit to do anything in relation to the vehicle, with the intention of causing the death of, or bodily injury to, a person or damage to another’s property or with reckless indifference as to whether such death, bodily injury or damage results; or

(b)drive the vehicle while so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle; or

(c)drive the vehicle while there is present in his or her blood a concentration of .15 grams or more of alcohol in 100 millilitres of blood; or

(d)drive the vehicle while not duly licensed or otherwise permitted by law to drive the motor vehicle; or

(e)drive the vehicle while the vehicle is overloaded, or in an unsafe, unroadworthy or damaged condition; or

(f)use the vehicle otherwise than for purposes—

(i)stated in the application for registration, renewal of registration, exemption from registration, or permit, in respect of the motor vehicle; or

(ii)agreed upon by the insurer and the registered owner of the vehicle.

3...... The owner of the vehicle warrants that no other person will, with his or her knowledge or consent (which will be presumed in any proceedings in the absence of proof to the contrary), drive or use the vehicle, or do or omit to do anything in relation to the vehicle, contrary to any of the paragraphs of clause 2.”

Whether or not bodily injury was caused by or arose out of the use of a motor vehicle is to be answered by reference to s99(3) of the Motor Vehicles Act.

Section 99(3) reads:

(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.

In the circumstances of this case whether or not the respondent’s bodily injuries may be regarded as being caused by or arising out of the use of a motor vehicle will depend upon whether or not those bodily injuries were a consequence of the driving of the vehicle. The other sub paragraphs of s99(3) of the Motor Vehicles Act are not relevant.

The appellant’s case was that it was entitled to recovery of the excess amount pursuant to s54(7b) of the Act. The respondent resisted that claim upon the ground that the respondent’s bodily injuries were caused by or arose out of the use of a motor vehicle.

In those circumstances it seems to me that the onus is upon the respondent to establish that his bodily injuries were caused by or arose out of the use of the motor vehicle.  It is for the respondent to establish that the bodily injuries are a consequence of the driving of the vehicle.  I have had occasion recently to consider the question of onus of proof:  Motor Accident Commission v The ANI Corporation Ltd t/a Austral Steel - Eagle and Globe (Unreported, SCSA Full Court, Cox, Lander and Bleby JJ 27 November 1997, Judgment No. S6416.2). In my opinion s99(3) is a definition section and does not provide a condition of the schedule 4 policy and therefore the person asserting has the onus of establishing that the bodily injuries were caused by or arose out of the use of the motor vehicle. To that extent I disagree with His Honour’s reasons in so far as His Honour relied upon his own dictum in State Government Insurance Commission v Wagner (1993) 62 SASR 175 and in particular where His Honour held that the SGIC in that case bore the onus of establishing that the bodily injuries were not caused by and did not arise out of the use of a motor vehicle. I will not repeat the reasons (to which I adhere) which I gave in Motor Accident Commission v The ANI Corporation Ltd t/a Austral Steel - Eagle and Globe (supra).  The question of onus in this appeal was not important as in the end result the facts were clearly enough established.

The principal question in this appeal has been the construction of s99(3).

That section has been considered in three previous decisions of the Full Court of this Court.

In SGIC v Wagner & Anor (supra) King C J considered the expression “in consequence of” in the context of a submission made by the then Solicitor-General that those words had a different and wider connotation than the expression “caused by or arising out of” in clause 1 of the Schedule 4 policy. He left open the question whether the expression was wider than the words “caused by or arising out of”, preferring to decide upon the facts of the case that the activity which caused the respondent’s injury was not sufficiently connected with the driving to be said to be in consequence of it. He described the particular action which is not important for these reasons, as being a distinct and separate activity to that of driving.

Millhouse J, I think, rejected the Solicitor-General’s argument because it would lead to uncertainty in that each case would have to be examined on its facts.

Olsson J also left open the question of whether the words “in consequence of” were wider than “caused by or arising out of”, like King C J preferring to decide the question on appeal upon its facts.  He also found that the activity in which the respondent was engaged was not an activity which could be categorised as driving of the vehicle so in those circumstances the respondent’s injuries could not be said to be a consequence of the driving.

In this case Olsson J referred to his own decision in Wagner and the argument advanced by the Solicitor-General in that case.  He said:

“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’).”

In this case His Honour also said:

“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.”

Section 99(3) was also considered by this Court in Heath v Corporation of the City of Tea Tree Gully & Anor (1996) 66 SASR 548.

In that case Cox J said at 550:

“Obviously subs (3) was intended to limit significantly the expansive interpretation that had previously been given to the Fourth Schedule.  It drew a clear distinction between the driving of a vehicle and other vehicle-related activities.  See State Government Insurance Commission v Wagner (1993) 62 SASR 175 where attention was given to both the notion of ‘driving’ in subs (3) and to the expression ‘a consequence of’. It will be a question of fact in any given case whether death or bodily injury was a consequence of the driving of a motor vehicle. If there is evidence to support a court’s finding to that effect, an appellate court will not readily interfere with it. In this case the learned magistrate in a careful judgment examined the evidence and the law and concluded that the plaintiff’s injury arose out of the use of a motor vehicle. In my opinion, however, the learned magistrate was mistaken and Millhouse J acted correctly in allowing the appeal.”

Debelle J said at page 555:

“In some cases, the determination of the question of fact whether death or bodily injury was a consequence of the driving of a motor vehicle will be straightforward.  In other cases, it will be necessary to examine closely the activities for which the vehicle was being used.  It would be helpful if it were possible to discern a suitable test in order to avoid the law in this area becoming a host of single instances.  But the experience with predecessors of this legislation suggest that the formulation of an appropriate test is an elusive goal.  In many cases, it will be a question of fact and degree whether the vehicle was being driven or being utilised in some other activity.  It is possible, however, to identify one or two criteria.”

In Motor Accident Commission v ANI Corporation Ltd t/a Austral Steel - Eagle and Globe (supra) Cox J said (and I agreed):

“I adhere to the opinion I expressed in Heath v Tea Tree Gully about the proper approach to the question whether a particular death or bodily injury is ‘a consequence of the driving’ of a vehicle within the meaning of that expression in subs (3) of s99.  It is plain that Parliament intended to limit significantly the expansive interpretation that had previously been given to the Fourth Schedule, where the debate centred on the “use” of the vehicle, and sometimes it will be necessary to distinguish the different activities of driving and loading even if that means identifying different aspects of a vehicle’s use within a single overall operation.  Whether death or bodily injury was a consequence of the driving of a vehicle will be a question of fact and judgment in every case.”

In this case it was argued by counsel for the appellant that it is necessary to satisfy an inquiry under s99(3) of the Motor Vehicles Act, to focus on the question of the activity being undertaken at the time that the person receives the bodily injuries or the death is caused.

He argued that, in this case, the respondent had undertaken the activity of unloading the vehicle when he suffered his bodily injuries and therefore it could not be said that the bodily injuries were a consequence of the driving of the motor vehicle.  In the alternative he submitted that the bodily injuries had occurred because of another proximate cause being the activity of unloading.

I do not think, with respect, that it is of assistance to construe s99(3) by reference to an activity test or a question of the proximate cause of the bodily injuries received. In my opinion the proper construction of s99(3) requires an examination, in circumstances such as this, as to whether or not the bodily injury or death was a consequence of the driving of the vehicle.

In some cases the activity which is being undertaken by the person who suffered the bodily injury or was killed will clearly demonstrate that the injuries or death were not a consequence of the driving of the vehicle.  In some other cases the activity being undertaken will demonstrate that the injuries or death were a consequence of the driving of the vehicle.  It will be a question of fact and judgment in every case.

However the question of whether the bodily injury or death was a consequence of the driving of the vehicle will not be answered by categorising, in advance, different activities.

Section 99(3) was included in its form to limit the circumstances in which a party was entitled to be compensated for death or bodily injury caused by or arising out of the use of a motor vehicle as defined in schedule 4 of the Motor Vehicles Act.  The intention of Parliament was to limit the circumstances in which claims could be made to circumstances where the death or bodily injury was a consequence of the driving of the vehicle or a collision or action taken to avoid a collision whether in motion or stationary or the vehicle running out of control.

This section contemplates in my opinion a factual inquiry to determine in every case whether the particular bodily injuries or the death were a consequence of any of those matters.

It is not necessary to talk of tests of activity or proximate cause or anything of the kind. It is only necessary to determine whether upon the facts the injuries or death were a consequence of any of the matters in s99(3). Millhouse J suggested in State Government Insurance Commission vWagner that a construction of s99(3) which requires an examination of the facts in every case is undesirable but for the reasons I have given I disagree. I agree with respect with what Cox J said in Heath v Tea Tree Gully City Corporation (supra) and more recently in Motor Accident Commission v The ANI Corporation Ltd t/a Austral Steel - Eagle & Globe (supra).

The learned Trial Judge in this case determined that the respondent’s injuries were caused as a consequence of the driving of the motor vehicle.  He found that the load had been destabilised by the settling of the bales due to the motion of the truck whilst it was being driven so that at the end of the journey because of a lack of securing straps or ropes the bale fell off at the moment that the tarpaulin tension was released.

He described “the real causative element” as being the de-stablisation of the bales due to the driving of the vehicle and the consequent distortion of the load.

I agree with the factual assessment although I do not think it was necessary to decide that it was a causative element.  The question to be decided was whether the injuries were a consequence of the driving.  As I have already explained whether the top bale was secured at all or only partly but inadequately secured the bale must have moved during the journey between Portland and Laverton.  That follows, as I have already said, because the bale had not fallen when there was an opportunity for the bale to fall before the tarpaulins were put upon the load and before the journey commenced.

The movement of the bale was caused either by the operation of wind upon the load because of the removal of the front tarpaulin or alternatively by reason of the settling of the load due to the weight of the load on itself.  Whichever was the reason does not matter nor does it matter that the first of those causes would have arisen by reason of the respondent failing to put the second general tarpaulin on so as to prevent wind operating on the load.  What is being addressed here is not a question of the respondent’s negligence but a question of whether the bodily injuries were a consequence of the driving of the motor vehicle.

In my opinion for one or both of those reasons the bale was put in a position where it would fall on the removal of the tarpaulin.  It follows in my opinion that the bodily injury suffered by the respondent was as a consequence of the driving of the vehicle.  The decision is no more than a determination of fact that the respondent’s bodily injuries were a consequence of the driving of a motor vehicle.

As the respondent’s injuries were caused by or arose out of the use of a motor vehicle then it cannot be said that the Supreme Court of Victoria has awarded an amount against the employer which is in excess of the amount if any that would have been awarded in a similar action before a court of this State.  If the respondent had brought proceedings against his employer in this State damages would have been assessed at common law and without reference to s35A of the Wrongs Act.  That is because s35A(7) limits the application of s35A to the assessment of damages in respect of injuries arising from a motor accident occurring in this State.

In those circumstances the assessment of damages at common law would have proceeded on the same principles as the assessment of damages in Victoria.

For those reasons the appellant’s claim against the respondent had to fail and it follows that the appeal must be dismissed.

The Alternative Argument

The learned Trial Judge also acceded to the alternative argument put by the respondent although his remarks in that context are strictly obiter. That argument was that because of amendments to s54 no similar action to that brought in Victoria could be brought in a court of this State and that therefore s54(7b) had no application.

Because the matter was argued again in this Court and because it was said by the appellant to be a significant matter to the appellant and because it will arise again I shall briefly address the argument.

I do not agree with respect with His Honour’s conclusion in relation to the construction of s54(7b) of the Act. In my opinion the construction put upon the Act by His Honour leaves the section almost no work to do whatsoever.

When s54 was first enacted a worker was entitled to bring a claim for damages, albeit limited to non economic loss, for personal injuries arising out of an industrial accident against his employer. A worker was also entitled to bring a claim for damages for personal injuries arising out of the use of a motor vehicle as provided for in s54(2) of the Act.

On 3 December 1992 the right to bring an action under s54(1) for damages for non economic loss which were suffered otherwise than in an accident in which the bodily injuries were caused or arose out of the use of a motor vehicle was abolished. Thereafter a worker had no entitlement to bring any action for personal injuries in respect of any liability, apart from a liability under the Act, except in accordance with s54(2).

In my opinion Parliament did not intend, by removing a right of action to a worker to bring a claim for non-economic loss, at the same time to limit the right of recovery to which the Corporation was then entitled.  It would be extraordinary if before December 1992 the Corporation had an entitlement, where damages were assessed in another State in excess of the amount that would have been awarded in this State, to receive the whole of the amount of the excess, that that right was lost to the Corporation because Parliament legislated to further limit a workers right to damages against the worker’s employer.

Simply because a worker is no longer entitled to bring any claim for damages for personal injuries except a claim under s54(2) does not in my opinion restrict the right of the Corporation to recover in circumstances where the worker has obtained an award in another State for common law damages arising out of or in the course of the worker’s employment. In my opinion s54(7b) applies in circumstances where a worker has obtained in another State an award of damages for personal injuries arising out of or in the course of the worker’s employment and gives the Corporation a right to recover the whole of that award of damages because any similar action would lead to an award of no damages.

In my opinion the construction put upon s54(7b) by His Honour was with respect incorrect.

Conclusion

For the reasons given in relation to the first argument the appeal should be dismissed.

DOYLE CJ

I agree that the appeal should be dismissed.  I agree with the reasons for judgment of Lander J, and there is nothing that I wish to add to those reasons.

BLEBY J

I agree that the appeal should be dismissed for the reasons given by Lander J.

I dissented in Motor Accident Commission v ANI Corporation Ltd & Garrett.  That case involved injury to a person assisting in the loading of stillages onto a semi‑trailer, and whether the injuries were a consequence of the driving of a fork lift.  On the facts of that case I considered that they were.  However, in the course of my reasons I had occasion to contrast the difference in result if the question was whether the injuries were a consequence of the driving of the semi‑trailer being loaded.  In relation to the semi‑trailer, the injury in that case could only have been a consequence of the loading and not the driving of the semi‑trailer.  However, that does not mean to say, as was argued by the appellant in this case, that, merely because the injury occurred during the course of unloading, the injury was not a consequence of the driving.  It merely demonstrates, as Lander J has pointed out, that the question will need to be resolved according to the facts of each case, and not by reference to an activity test or a proximate cause test.  That is not what Parliament has prescribed.

I also respectfully agree with the observations of Lander J as to the respondent’s alternative argument concerning the construction of s54(7b) of the Workers Rehabilitation and Compensation Act.