Zengin v Insurance Commission of Western Australia

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST

No. S CI 2018 01619

UGUR ZENGIN	Plaintiff
v
INSURANCE COMMISSION OF WESTERN AUSTRALIA	Defendant

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 November 2019
DATE OF JUDGMENT:	1 May 2020
CASE MAY BE CITED AS:	Zengin v Insurance Commission of Western Australia
MEDIUM NEUTRAL CITATION:	[2020] VSC 237

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INSURANCE – Motor vehicles – Third party insurance – Plaintiff’s injury sustained immediately upon alighting from bus – Whether injury directly caused by, or by the driving of, the bus – Where plaintiff sustained injury immediately after bus stopped and door opened – Injury was directly caused by the driving of the bus – Whether identity of driver cannot be ascertained – Where enquiries have not been made of bus owner or employer of driver – Not established that identity of driver cannot be ascertained – Plaintiff failed to give written notice of claim to Commission as soon as practicable after the happening of the accident – Whether plaintiff should be relieved of effect of failure – Where plaintiff’s failure was inadvertent and reasonable – Where plaintiff has delayed making reasonable enquiries – Where Commission has suffered real and substantial prejudice due to failure – Plaintiff should not be relieved of effect of failure – Motor Vehicle (Third Party Insurance) Act 1943 (WA) ss 3(7), 7(3) and 29A – Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89, applied – Maitland-Smith v Path Transit Pty Ltd (2009) 52 MVR 185, applied – Transport Accident Commission v Treloar [1992] 1 VR 447, distinguished – Blum v Motor Vehicle Insurance Trust [1966] WAR 121, applied – Nominal Defendant v Meakes (2012) 60 MVR 380, distinguished.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	C Harrison QC with A Dimsey	Robinson Gill
For the Defendant	J Ruskin QC with P Lamb	HWL Ebsworth

HIS HONOUR:

In 2015, Ugur Zengin was working as an instrument technician on the Chevron-Gorgon LNG project on Barrow Island in Western Australia. He worked on a ‘fly-in fly-out’ basis while living in Victoria.

Mr Zengin alleges that he suffered a back injury when he disembarked from a bus which transported him to his workplace from his accommodation on Barrow Island on the morning of 27 October 2015. He alleges that the incident was caused by the negligence of the bus driver. He has brought an action for damages for the loss and damage he alleges he has sustained as a result of the incident.

Mr Zengin’s contends that he cannot identify the bus from which he disembarked on the day of the incident. He has therefore brought his action for damages against the Insurance Commission of Western Australia (the Commission) in reliance on s 7(3) of the Motor Vehicle (Third Party Insurance) Act 1943 (WA) (the Act). The Act creates and regulates the scheme for the claiming and awarding of damages at common law for personal injuries sustained in accidents involving vehicles registered in Western Australia.

Section 7(3) of the Act, the application of which is central to the issues presently before the Court, provides as follows:

Where the driver of a motor vehicle has caused death or bodily injury by negligence, being death or bodily injury directly caused by, or by the driving of, a motor vehicle but the identity of the vehicle cannot be ascertained, any person who could have obtained a judgment in respect of the death or bodily injury so caused against that driver may obtain by action against the Commission the judgment which, in the circumstances, he could have recovered against the driver of the vehicle: Provided that as soon as practicable after the happening of the accident
(a)he made due search and inquiry to ascertain the identity of the vehicle; and
(b)he gave to the Commission notice in writing of the claim and a short statement of the grounds thereof.

In considering the operation of s 7(3), it is also necessary to have regard to s 3(7) of the Act which states:

For the purposes of this Act, the death of or bodily injury to any person shall not be taken to have been caused by a vehicle if it is not a consequence of the driving of that vehicle or of the vehicle running out of control.

The parties were agreed about the combined operation and effect of ss 7(3) and 3(7). Read together, their effect is that:

(a) where a person has suffered injury due to the negligence of a driver of a motor vehicle; and

(b) such injury is either:[1]
[1]In Insurance Commission of Western Australia v Container Handlers (2004) 218 CLR 89 (‘Container Handlers’), considered in detail below, the High Court confirmed that the words in s 7(3), ‘directly caused by, or by the driving of, a motor vehicle’, read with s 3(7), created two distinct limbs.

(i) directly caused by a motor vehicle and a consequence of the driving of the vehicle; or

(ii) directly caused by the driving of a motor vehicle; and

(c) the identity of the vehicle cannot be ascertained,

the injured person may take action against the Commission in place of the driver, provided that, as soon as practicable, the person takes certain steps to investigate and give notice to the Commission.[2]

[2]As set out in paragraphs (a) and (b) of s 7(3).

In his claim against the Commission, Mr Zengin only relies upon the second limb referred to in subparagraph (b)(ii) above. He alleges that the injuries he claims to have sustained when he disembarked from the bus on the morning of 27 October 2015 were ‘directly caused by the driving’ of the bus.

The Commission has denied liability on various bases. The parties have requested the Court to determine as preliminary points two of the defences relied on by the Commission. They have also sought that the Court determine a third issue which arises from a further defence raised by the Commission based on the terms of s 7(3) of the Act. The issues for determination are as follows:

(a)Whether Mr Zengin’s claimed injuries were ‘directly caused by the driving’ of the bus?
Mr Zengin’s claim must fail if this question is answered in the negative. The answer to this question depends upon the application to the facts of the principles stated by the High Court in Insurance Commission of Western Australia v Containers Handlers Pty Ltd which concerned the interpretation of the relevant words in ss 7(3) and 3(3) of the Act.[3]

(b)Whether, in the language of s 7(3), the identity of the bus involved in the incident on 27 October 2015 ‘cannot be ascertained’?
Again, Mr Zengin’s claim must fail if this question is answered in the negative. The determination of this question will require the Court to consider the evidence about the steps which have, and have not, been taken to ascertain the identity of the bus.

(c)The third issue for consideration arises from a concession made by senior counsel for Mr Zengin that his client failed to satisfy the proviso in s 7(3)(b) of the Act concerning the giving of notice to the Commissioner. Mr Zengin seeks to be relieved of the effect of that failure by relying on s 29A of the Act. That section gives the Court a discretion to grant a plaintiff an indulgence in relation to their failure to give notice or to make due search and inquiry where that failure was ‘occasioned by mistake, inadvertence or any reasonable cause or that the Commission is not materially prejudiced in its defence or otherwise’. The relevant question is whether that discretion is enlivened in the circumstances of this case and, if it is, whether I should exercise it in Mr Zengin’s favour?
[3]Container Handlers (n 1).

Issue 1: Were Mr Zengin’s claimed injuries ‘directly caused by the driving’ of the bus?
Facts[4]

[4]For the purpose of dealing with the preliminary points, the Court received affidavit and oral evidence from Mr Zengin and from his solicitor, Danielle Meyer. The Commission relied upon affidavits sworn by Michael Nagle, a team leader with the Commission with knowledge of Mr Zengin’s claims.

The Chevron-Gorgon LNG project on Barrow Island was undertaken by Kellogg Joint Venture Gorgon (the joint venturer). Mr Zengin commenced work on the project on a fly-in fly-out basis in June 2015. He was employed as an instrument technician by one of the contractors engaged on the project, Kentz Pty Ltd (Kentz) and apparently worked at a site operated by Chevron Australia Pty Ltd (Chevron). Mr Zengin estimates that, in the period he worked on the project, there may have been more than 1,000 Kentz employees who worked on the project.

At about 5:30am on 27 October 2015, Mr Zengin boarded a bus at his accommodation on Barrow Island to transport him and his workmates to his work group’s crib hut to commence work for the day. The bus was a medium to large sized vehicle with an occupancy of about 50 to 70 people. It usually carried 20 or more passengers. Different buses transported Mr Zengin to his workplace each day.

At about 5:45am, the bus stopped at a position before a designated bus stop at the crib hut. The bus was unable to stop at the designated stop because that space was occupied by another bus from which workers were disembarking.

While the bus carrying Mr Zengin was stationary, the door opened and he and other workers disembarked. The door had been open for a short time before Mr Zengin stepped off. When he did so, he could not clearly see the surrounding ground because it was before dawn and very dark. He stepped off the bus with his left foot. He stepped further than he expected and onto rough and uneven ground. He stumbled and felt immediate pain in his lower back and an altered sensation in his left leg.

When Mr Zengin alighted from the bus, the driver was in the driver’s seat. The driver operated the controls to open the door to enable Mr Zengin and the other workers to disembark. The engine of the bus remained running when Mr Zengin left the bus.

Mr Zengin reported the incident to his supervisor the same day at 6:00am. He attended the medical facilities on site at about 7:00am where he was examined by a doctor and given the rest of the day off work.

Mr Zengin’s condition worsened the following day. He again attended the onsite medical facilities. Later that day, he left Barrow Island and travelled to Perth for further medical investigations. He has not since returned to Barrow Island.

On 30 October 2015, Mr Zengin completed a workers’ compensation form in relation to the incident. The claim was accepted.

Within days of lodging the workers’ compensation claim, Mr Zengin returned home to Melbourne and underwent physiotherapy treatment for several months.

In June 2016, Mr Zengin’s pain increased and as a result he attended a hospital emergency department. After various consultations, Mr Zengin underwent decompression and fusion surgery on 29 March 2017.

Mr Zengin’s claim in negligence

Mr Zengin alleges that the incident on 27 October 2015 was caused by the negligence of the driver of the bus in that the driver:

(a) invited him to disembark from the bus onto rough and uneven ground in circumstances where there was little natural light;

(b) failed to bring him to the designated bus stop before inviting him to disembark from the bus;

(c) failed to warn him that the area where he was disembarking was unlit, and had rough and uneven ground;

(d) failed to ascertain whether it was safe for passengers to disembark before inviting him to disembark;

(e) failed to illuminate the area where he was disembarking from the bus;

(f) exposed him to the unnecessary risk of injury.

Authorities
Transport Accident Commission v Treloar

Before addressing the judgments of the High Court in Container Handlers,[5] reference should be made to the earlier decision of this Court in Transport Accident Commission v Treloar on which Mr Zengin relied.[6] The decision was referred to by McHugh J in Container Handlers and, so it was submitted on behalf of Mr Zengin, not disapproved.[7]
[5](n 1).
[6][1992] 1 VR 447 (‘Treloar’).
[7]See Container Handlers (n 1) 111 [57] and referred to in [34] below.

Treloar concerned three appeals from the Administrative Appeals Tribunal of Victoria on review of decisions of the Transport Accident Commission. It concerned an amendment to the definition of ‘Transport accident’ in the Transport Accident Act 1986 to mean:

… an incident directly caused by, or directly arising out of the driving of a motor car, a railway train or a tram.

The facts of one of the appeals before the Court, Transport Accident Commission v Pedersen, have certain similarities with the present matter. Mrs Pedersen had applied for compensation on the basis that her elderly husband died as a result of a transport accident which occurred when he fell whilst disembarking from a bus. It was alleged that Mr Pedersen's fall was due to the bus having been stopped at a place where passengers had to step in the dark on to rough and irregular bluestone guttering. When he alighted, the bus was stopped and the driver of the bus and a hostess were standing by the door of the bus and assisting passengers to exit the vehicle.

Justices McGarvie and Gobbo considered that the word ‘driving’ in the definition of ‘Transport accident’ was used in its ordinary sense.[8] In concluding that it was open to find that the incident was directly caused by the driving of the bus,[9] their Honours reasoned as follows (emphasis added):[10]

The first question is whether the incident in which Mr Pedersen was injured was directly caused by the driving of the motor bus. The finding of the deputy president to the effect that Mr Pedersen's injuries would not have been sustained had it not been for the bus being driven to and stopped at an inappropriate place for the disembarkation of passengers is close to a finding that injuries resulted from an incident directly caused by the driving of the bus.
In our opinion an incident is caused by the driving of a motor car if it is caused by some feature of the driving such as the speed at which, the inattention with which or the place to which the car is driven. …
In these appeals it is desirable as far as practicable to confine ourselves to the facts necessary to decide the appeals. Clearly in this case the driving of the bus included its being driven to and stopped in the place where it was when Mr Pedersen alighted.
The deputy president's finding that the injuries resulted from an incident which would not have occurred had it not been for the bus being driven to and stopped at an inappropriate place for the disembarkation of passengers, could provide a basis for a finding that driving the bus to and stopping it there caused the incident:…
As Dr Buchanan QC for the appellant fairly conceded, it is difficult to see any legal difference in the applicable test which has been brought about by inserting the word “directly” before the word “caused” in the definition. He suggested it might be regarded as emphasising that the concept of causation involves direct causation.
In our opinion it could not be said that the incident from which Mr Pedersen's injuries resulted was too remote or indirect a consequence of the bus driver's action in stopping where he did, to be regarded in law as directly caused by it.
[8]Treloar (n 6) 450.5.
[9]Treloar (n 6) 451.15.
[10]Treloar (n 6) 450–1.

Container Handlers

It was contended on behalf of the Commission that a conclusion that Mr Zengin’s claimed injury was not ‘directly caused by the driving’ of the bus flowed inexorably from the judgments of the members of the High Court in Container Handlers. It is therefore necessary to closely examine the facts of that case and the approach adopted by the members of the Court to the construction of the relevant words used in the Act. In doing so, I will also outline the submissions advanced by the Commission in reliance on Container Handlers.

The case arose from the transporting of a truck on a low loader attached to a prime mover in remote Western Australia. The unsealed roads over which the truck was driven were very rough and the conditions extremely hot. The wheel hubs on the low loader overheated and seized up requiring repair. An axle of the vehicle was jacked up for the repairs to be undertaken. While the plaintiff was assisting the driver in the repairs, a jack failed and the plaintiff’s hand was crushed by an axle.

Pursuant to the Act, a statutory policy of insurance was in place in relation to the prime mover and the low loader. Container Handlers claimed indemnity from the Commission under the policy. The issue before the High Court was whether the injury suffered by the plaintiff was, in the language of s 6(1)(b) of the Act, ‘… directly caused by, or by the driving of, [a] motor vehicle …’. This formulation is used throughout the Act, including in s 7(3) with which this proceeding is concerned.[11]
[11]See [3] above.

It was uncontroversial before the High Court that this formula could be broken into two separate and distinct limbs, namely, whether the injury was: (a) directly caused by the motor vehicle; or (b) directly caused by the driving of the vehicle.

Container Handlers conceded that the second limb did not apply in the circumstances of the case. As such, the question before the Court was whether, in line with the first limb, the injury was directly caused by the motor vehicle. In addressing that question, all of the members of the Court considered that the meaning of the first limb was limited by the terms of s 3(7).[12] As McHugh J put it:[13]

The better view of the relationship between ss 3(7) and 6(1)(b) and the statutory policy is that s 3(7) limits rather than defines or excludes the operation of s 6(1)(b) and the statutory policy. If the indemnity is activated only because the death or bodily injury was directly caused by the vehicle, s 3(7) makes it necessary to determine whether the death or injury was a consequence of the driving of the vehicle or of the vehicle’s running out of control. Thus, s 3(7) limits the scope of the words “directly caused by … [a] vehicle” in s 6(1)(b) and the statutory policy by imposing an additional requirement. Even if the vehicle directly caused the death or bodily injury, the statutory policy applies only if the person suing on the indemnity also shows that the death or bodily injury was a consequence of the driving of the vehicle or of the vehicle’s running out of control.

The formulation of the first limb in the present matter is consistent with this approach to the operation and effect of ss 7(3) and 3(7).[14]

[12]See [4] above.

[13]Container Handlers (n 1) 102 [30] (emphasis in original). See also 120–121 [89]–[92] (Gummow J), 125–126 [110], 127 [114] (Kirby J), 132 [132] (Callinan J), 141 [153] (Heydon J).

[14]See [4] & [5] above.

The members of the Court unanimously determined that the plaintiff’s injury was not within the first limb with the consequence that it was not within the scope of the statutory insurance policy. Three of the five members of the Court so concluded on the ground, or for reasons which included the ground, that the injury was not a consequence of the driving of the vehicle.[15] The reasoning of those members of the Court on that issue, referred to below, is of particular relevance in determining whether Mr Zengin’s injury was ‘directly caused by the driving’ of the bus and were relied on extensively by the Commission.
[15]Container Handlers (n 1) 92 [3], 114 [66], 114–115 [67] (McHugh J), [133] (Callinan J), and [160]–[161] (Heydon J). Gummow J found it unnecessary to consider this point: at [94]. Kirby J emphasised that, under the scheme of statutory insurance, ‘Indemnity is not provided unless the bodily injury was directly a consequence of the driving of that vehicle’: at [113] (emphasis in original). He concluded that, although the ‘injury was directly caused by the motor vehicle … it was not a consequence of the driving of the vehicle’: at [117].

The Commission referred to observations by McHugh J about the legislative amendments which resulted in the formulation of the two limbs referred to above.[16] It was submitted that these observations confirmed that, in the context of ss 7(3) and 3(7), Parliament intended ‘driving’ to mean locomotion or movement, or matters so closely connected with locomotion and movement as to be, in effect, part of locomotion or movement. McHugh J stated as follows:[17]

That intention was to narrow the scope of the statutory policy by connecting liability under the statutory policy with the locomotion of the vehicle insured. The link with the locomotion of the motor vehicle is maintained through the requirement that the injury be a consequence of the driving of the vehicle or its running out of control. This interpretation of s 3(7) reverses the effect of the decision in Dickinson and earlier cases[18] while maintaining the distinction in s 6(1)(b) and the statutory policy between death or injury directly caused by driving and death or injury directly caused by the vehicle.

[16]Motor Vehicle (Third Party Insurance) Amendment Act 1987 (WA) (‘Amendment Act’).

[17]Container Handlers (n 1) 104 [34] (emphasis added).

[18]See, eg, Fawcett v BHP By-Products Pty Ltd (1960) 104 CLR 80, 87 (Menzies J); R J Green & Lloyd Pty Ltd (1966) 114 CLR 437, 441–442 (Barwick CJ); Commercial and General Insurance Co Ltd v Government Insurance Office (NSW) (1973) 129 CLR 374, 379 (Menzies, Walsh and Mason JJ). In Dickinson, although the lighting of the match was not a consequence of the driving of the motor vehicle, the plaintiff’s subsequent injuries were held to have arisen out of the use of the vehicle.

The Commission placed particular emphasis on McHugh J’s extensive consideration of the word ‘driving’. His Honour stated:[19]

The amendments enacted by the Amendment Act were intended to reduce the scope of indemnity imported by the word “use”. The intention was effected by replacing the word “use” with the word “driving”. “Driving” is a much narrower concept than “use”. …
The Act does not define “driving”. The debate regarding the Amendment Bill in the Legislative Council indicates that the word was to have its ordinary English meaning. The Australian Oxford Dictionary and The New Shorter Oxford English Dictionary relevantly define “drive” as to “operate and direct the course of” and to “operate and control the course of” a vehicle respectively. Thus, when the Act refers to a consequence of the “driving” of the vehicle, it refers to a consequence of the actual operation and control of the direction and speed of the vehicle. This is confirmed by the expression “or of the vehicle running out of control” in the second part of s 3(7), which conveys the notion of a vehicle in motion. This meaning of the word “driving” also finds support in a number of cases, in which the notion of driving has been held to comprehend the controlling of the movement and direction of the vehicle in a substantial sense. Reconciling the outcomes in these cases, however, is probably impossible. The inconsistencies in the conclusions reached by the courts when applying the concept of “driving” show that it is not always easy to draw a line between an activity that can be described as “driving” and one that cannot be so described. In any event, neither the decisions nor the reasoning in each case support the proposition that, after the driver has stopped and got out of the vehicle, he or she is still driving it.

[19]Container Handlers (n 1) 109–110 [51]–[52] (emphasis added) (citations omitted).

Justice McHugh then applied this approach to the facts of the case:[20]

… The controlling of the direction and movement of the prime mover with the low loader attached was the driving of the low loader for the purposes of the policy. While the repair of a vehicle during the course of a journey may fall within the meaning of “use”, it clearly does not amount to the “driving” of the vehicle. Nor can it be said that the preceding acts of negligence by Container Handlers constituted the driving of the vehicle. As the [Commission] submits, such an interpretation leads to absurd results. It would mean, for example, that an owner is driving the vehicle for the purpose of the Act when he or she fails to inspect repair equipment before the commencement of the journey that gives rise to the relevant injury. In my view, the Full Court erred in finding that:
… the distinct acts of negligence by Container Handlers, or those of its employee driver for which it was liable in tort, were aspects of the fact of operation of the vehicle and so of the driving of it. These included the unserviceable nature of the hydraulic power unit of the low loader and those findings of [Nisbet DCJ] as to the driver’s negligence.

[20]Container Handlers (n 1) 110–111 [53] (emphasis added) (citations omitted).

Relying on McHugh J’s statement that Container Handlers’ ‘preceding acts of negligence’ could not constitute the driving of the vehicle, it was submitted on behalf of the Commission that the bus driver’s alleged negligence of parking in the wrong spot was likewise a preceding act which did not constitute the driving of a vehicle.

Justice McHugh continued:[21]
[21]Container Handlers (n 1) 111 [54]–[57] (italics in original; underlining added) (citations omitted).

However, as long as the death or injury was the effect of conduct that properly can be categorised as the “driving” of the vehicle, the statutory policy would encompass liability for that death or injury. The question then is whether the injury suffered by Mr Sutton was a consequence of Mr Reibel’s control of the movement and direction of the vehicle.
In the District Court, Nisbet DCJ said:
[I]f the vehicle had not been driven and, probably, driven along such bad roads, the low loader’s wheel bearings (I presume that’s what failed) would not have developed the problems they did necessitating the wheels being removed.

In the Full Court, Roberts-Smith J expressed a similar view. His Honour said:
I refer to the “manner of control” in the sense of the way in which the rig was driven along unsealed, rough, desert tracks in extreme heat causing the wheel hubs to overheat and seize up so as to require removal of the wheels and the chaining of the axle.

Transport Accident Commission v Treloar gives some support for these views. In that case McGarvie and Gobbo JJ held that an incident is caused by the driving of a motor car if it is “caused by some feature of the driving such as the speed at which, the inattention with which or the place to which the car is driven”.

Senior counsel for the Commission submitted that, by italicising the above words from the judgment of McGarvie and Gobbo JJ in Treloar, McHugh J was identifying that they were consistent with the erroneous approach adopted below to which he referred in the preceding paragraphs. It was submitted that, although McHugh J did not state that Pedersen was wrongly decided, his Honour’s observations indicate that he did not consider that the approach there adopted was correct. Counsel submitted that it was an example of ‘sine qua non reasoning’ which McHugh J rejected as being impermissible.

Justice McHugh summarised his analysis and conclusions as follows:[22]

… Whichever limb of the indemnity is invoked, however, the legislative history and purpose of the Act demonstrate that there must be a causal link between the death or injury and some feature of the driving of the vehicle. It is not enough that the death or injury is the result of the use of the vehicle. The death or injury must be a consequence of the driving of the vehicle. The definite article “the” in front of “driving” emphasises the need to find a causal connection between the death or injury and some feature of the driving of the vehicle. It is at this stage that the case for Container Handlers fails.
Nothing in the evidence suggests that any particular feature of the driving of the vehicle brought about the injury to Mr Sutton. Nothing in the evidence suggests that some feature of the driving, such as running into a drain or avoidable pothole or driving at excessive speed, caused the low loader’s wheel bearings to fail or the wheels to lose their shape. If some feature of the driving had this effect, it might plausibly be suggested that Mr Sutton’s injury was a consequence of that driving, because it led to the repair work which in turn led to the injury. On that hypothesis, the injury was arguably a consequence, although not a direct consequence, of the driving of the vehicle. Nevertheless, nothing in the evidence suggests that the injury to Mr Sutton was the result or effect of some feature of the driving of the vehicle.
The mere fact that Mr Sutton’s injury would not have occurred if the vehicle had not been driven from Port Hedland to Camp Tracey and then to Nifty or from Nifty to Port Hedland does not mean that, for the purpose of the Act, the injury to Mr Sutton was a consequence of the driving of the vehicle. The use of the vehicle to transport a heavy crane and a mine transport truck on bad roads was a necessary pre-condition for the sustaining of the injury. However, the injury was not a consequence of any feature of the driving of the prime mover and its attached load. The injury was not a result or effect of some feature of the driving of the vehicle. …
Once it is understood that using the vehicle is not equivalent to the driving of it, it is impossible to hold that the injury to Mr Sutton was a consequence of the driving of the prime mover and low loader. His injury was not a consequence of any feature of the driving of the vehicle.

[22]Container Handlers (n 1) 113–114 [64]–[66] (emphasis added).

It was submitted on behalf of the Commission that, just as the ‘use of the vehicle … on bad roads was a necessary pre-condition for the sustaining of the injury’, so was the bus driver’s decision in this matter to select a particular spot for passengers to disembark. If the driver had chosen a different location, the injury would not have been sustained. Justice McHugh rejected such an approach as it was not directed at determining whether the injury was a consequence of any feature of the driving of the vehicle.

Justice Heydon addressed the construction of the statutory policy of insurance and the meaning of ‘driving’ in the following passage:[23]

On the true construction of the policy in the light of s 3(7), it will not indemnify the owner or driver in respect of liability for negligence which may be incurred by that owner or driver in respect of death or bodily injury to any person caused by the motor vehicle, unless the death or injury is directly caused by the driving of the vehicle or by its running out of control. The full range of possible causes of injury by the agency of a motor vehicle is cut down to those which can be characterised as being a consequence of its driving or its running out of control, and further cut down by the requirement that the causal relationship must be characterised as being direct and not something wider. Since the language of the Schedule and s 3(7) is plainly intended as a means of narrowing the scope of indemnity, it is further appropriate to construe the word "consequence" as referring to something narrower than the wide ideas often encompassed in law by references to "causation" and its derivatives: "consequence" here refers to a narrower segment of the wider class of "causes". So far as the process of cutting down is effected by the reference to the driving of the vehicle, the expression is preceded by the definite article, and is used in the composite phrase "a consequence of the driving of that vehicle or of the vehicle running out of control". In that context at least, the words "the driving" refer to the actual control and management of the vehicle while it is in locomotion. "The driving" of a vehicle, in at least its core meaning in this context, is the activity conducted by a human being in the driver's seat who manages and directs the course of its movement by operating the controls — preparing to start, starting, accelerating, braking, steering, giving appropriate signals, operating the horn and lights appropriately, stopping and turning the engine off. In contrast, when the vehicle runs out of control, it is because the course of its movement has ceased to be managed and directed by the operation of the controls, or because, while stationary, its brakes have failed or it has been struck by another vehicle and it has moved off out of control.

[23]Container Handlers (n 1) 141 [153] (underlining added).

In relation to the reference to ‘stopping’ as one of the activities of ‘driving’ referred to by Heydon J, senior counsel for the Commission submitted that his Honour cannot properly be understood as referring to the mere fact that a vehicle is stopped, but to the operation of the vehicle’s braking system. Nor could it properly be understood as encompassing what occurs after a vehicle is stopped, for example, the disembarking of passengers from the vehicle at a particular location.

Justice Heydon referred to the ‘untenable construction of “driving”’ adopted by the Full Court as including the unserviceable nature of the hydraulic power unit of the low loader, the failure to properly equip the vehicle for carrying out emergency repairs by failing to supply certain items of equipment and by the driver’s failure to inspect emergency repair equipment before the commencement of the journey.[24] His Honour stated that:[25]

… Each of these items of conduct falls well outside the reach of the expressions "driving" or "consequence of the driving". They go no closer to "driving" than being acts preparatory to driving. They are not consequences of the driving, for it cannot be the case that everything related to wear and tear caused by the driving of a vehicle at any time since it was new was a consequence of the driving in this context. …

[24]Container Handlers (n 1) 142–143 [158]–[159].

[25]Container Handlers (n 1) 144 [160].

His Honour continued:[26]

But in the context of the policy and s 3(7), the conduct of a person, after a vehicle has come to a stop and the engine has been turned off, who checks for defects in it with a view to improving its performance before it is placed in motion again, is not "driving". Hence the failure of the driver to give the plaintiff proper instructions, to use the jack with an appropriate footing, and to ensure that the plaintiff was in the clear before jacking commenced, were not within the expression "driving".

[26]Container Handlers (n 1) 144 [161].

Analogously, the Commission submitted that the alleged failure of the bus driver to ensure that Mr Zengin had a safe surface to step onto from the bus did not involve the ‘driving’ of the bus; it was an alleged failure which was subsequent to the driving. Senior counsel emphasised Heydon J’s concluding remarks that the arguments advanced on behalf of Container Handlers ‘dilute[d] the meaning of "directly" too much, by extending it to include "indirectly", thereby impermissibly overlooking the significance of that word …’.[27]
[27]Container Handlers (n 1) 144–145 [162].

Justice Callinan referred to the importance of giving effect to:[28]

… the intention manifest in s 3(7) of the Act, that the injury is not to be taken to have been caused by a vehicle if it is not a consequence of the driving of the vehicle, or of the vehicle running out of control. The words "running out of control" clearly refer to and are confined to the notion of a vehicle in motion. The word "driving" should be read to the same effect. The two phrases in which the words separately occur are plainly related and the word used in the latter, "running", conveying the idea of motion, strongly suggests that "driving" in the former is used in the same sense. The structure and language of s 3(7) also lead to the same conclusion.

[28]Container Handlers (n 1) 132 [132] (emphasis in original).

His Honour continued that ‘driving’ required:[29]

… more than a sine qua non. The word "directly" and the language of s 3(7) are imperious: the insurer will only be liable if a personal injury or death has been directly caused by the driving, that is the operation of a motor vehicle while it is in the control of a driver in the course of putting it into, keeping it in, or bringing its motion to a conclusion, or if the motion is uncontrolled. …
[29]Container Handlers (n 1) 132–133 [133] (emphasis in original).

Maitland-Smith v Path Transit Pty Ltd

In Maitland-Smith v Path Transit Pty Ltd,[30] Martin CJ (with whom Le Miere AJA agreed) considered in detail the judgements of the High Court in Container Handlers. In addressing the judgment of McHugh J, Martin CJ referred to his Honour’s conclusion that ‘driving’ in s 3(7) referred to the ‘actual operation and control of the direction and speed of the vehicle’,[31] observing that ‘the critical question was whether the relevant injury was the effect of conduct that could properly be categorised as the ‘driving’ of the vehicle in this sense’.[32]
[30](2009) 52 MVR 185 (‘Maitland-Smith’).
[31]Container Handlers (n 1) 110 [52].
[32]Maitland-Smith (n 30) 192 [35], citing Container Handlers (n 1) 111 [54].

Chief Justice Martin also summarised the judgments of Callinan and Heydon JJ as expressing the view that ‘driving’:[33]

… was limited to 'the actual control and management of the vehicle while it is in locomotion' — that is 'the activity conducted by a human being in the driver's seat who manages and directs the course of its movement by operating the controls'…

[33]Maitland-Smith (n 30) 192 [35], citing Containers Handlers (n 1) 141 [153].

Chief Justice Martin provided the following summary of the judgments in Container Handlers,[34] the accuracy of which was accepted by counsel for both parties in this matter:[35]

So, in the result, four members of the High Court (Gummow, Kirby, Callinan and Heydon JJ) construed the statutory scheme such that a claimant for indemnity under the statutory policy was required to establish a direct connection between the driving of the vehicle and the injury giving rise to the liability. Three members of the court (McHugh, Callinan and Heydon JJ) were of the view that 'driving' was limited to the actual operation and control of the direction and speed of the vehicle. All members of the court were of the view that in the circumstances of that case, there was insufficient connection between the driving of the vehicle and the injury to give rise to an obligation of indemnity.

[34]Maitland-Smith (n 30).

[35]Ibid 193 [39].

While accepting the accuracy of this summary, senior counsel for the Commission submitted that Container Handlers was also authority for the proposition that ‘sine qua non reasoning’ is insufficient in relation to the 'directly caused by the driving' limb. It was submitted that, if the High Court had in fact been specifically considering that limb, the various aspects of the judgments on which the Commission relies to which reference has been made make clear that it would have identified a requirement that an injury be directly caused by a feature of the management, control or locomotion of the vehicle, whether by the starting of it, the driving of it, or in the stopping of it, but not by what was described as ‘post-events’, such as a passenger stepping off a stationary bus onto uneven ground.

Consideration

As McHugh J observed in Container Handlers, ‘it is not always easy to draw a line between an activity that can be described as “driving” and one that cannot be so described’.[36] The distinction will necessarily depend on the particular facts of each case.
[36]Container Handlers (n 1) 110 [52].

Although Container Handlers provides authoritative guidance as to the approach to be adopted in determining whether Mr Zengin’s claimed injuries were ‘directly caused by the driving’ of the bus, it is not to be overlooked that, unsurprisingly, the High Court’s consideration and discussion of that formulation necessarily occurred in part by reference to and in the context of the facts of the case. Those facts and circumstances are materially different in significant respects to those relating to Mr Zengin.

In Container Handlers, the plaintiff and the driver of the prime mover had stopped and left the vehicle, which was then jacked up while repairs were undertaken. It was then, while assisting with the repairs, that the plaintiff suffered an injury. Given these facts, it is unsurprising that Container Holdings conceded that the plaintiff’s injury was not directly caused by the driving of the vehicle.

By contrast, in the present matter, the engine of the bus was running and the driver remained in the driver’s seat when Mr Zengin alighted from the bus while it was stationary. It was the driver who operated the controls to open the door to enable Mr Zengin and the other passengers to disembark.

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

(a) a consequence of a feature of the bus driver’s operation and control of the direction and speed of the bus (McHugh J); [37]

(b) directly caused by the actual control and management of the bus while it was in locomotion (Heydon J); [38]

(c) directly caused by the operation of the bus while it was in the control of the driver in the course of putting it into, keeping it in, or bringing its motion to a conclusion (Callinan J).[39]

[37]Ibid.

[38]Container Handlers (n 1) 141 [153].

[39]Container Handlers (n 1) 132 [133].

As has been outlined, the substance of Mr Zengin’s allegation of negligence is that the bus driver brought the bus to a halt and invited him to disembark at a place other than the designated bus stop which was a location with rough and uneven ground and poorly illuminated. The resolution of the present controversy therefore in substance turns on whether this is a feature of the ‘operation and control of the direction and speed of the vehicle’; ‘the actual control and management of the vehicle while it is in locomotion’; or the ‘operation of a motor vehicle while it is in the control of a driver in the course of putting it into, keeping it in, or bringing its motion to a conclusion’.

Justice Heydon referred to ‘the driving’ of a vehicle as having the core meaning of an ‘activity conducted by a human being in the driver’s seat who manages and directs the course of its movement by operating the controls’.[40] Although many of these activities will be generic to different types of vehicles,[41] it is possible to conceive of some activities conducted by a driver which are particular to the management and direction of a specific type of vehicle. Similarly, there may be aspects of the course of movement of a vehicle which are unique or particular to certain types of vehicles.
[40]Container Handlers (n 1) 141 [153].
[41]See the examples given by Heydon J at 141 [153]: ‘Preparing to start, starting, accelerating, braking, steering, giving appropriate signals, operating the horn and lights appropriately, stopping and turning the engine off’.

This is highlighted in the case of passenger buses which have a number of features that are generally not shared by other vehicles. First, they have the capacity to transport a larger number of people than passenger cars. Secondly, this is reflected in various ways in their design and layout, including by the provision of appropriate seating and by doors and doorways to allow for the entry and egress of passengers. Thirdly, the course of movement of passenger buses providing transport services along dedicated regular routes will, in a general sense, be determined by the need to pick up and collect passengers from designated stops along such routes.

A corollary of these characteristics is that a driver of a passenger bus will be required to undertake particular activities relating to the control and management of the bus while in locomotion. The essential features of those activities in the case of a passenger bus include the use by the driver of the vehicle’s braking and steering system to bring the bus to a halt at specific locations (stops) and then the operation of a system for the opening and closing of doors to allow passengers to board and to alight from the vehicle.

Once these are recognised as forming part of the essential activities relating to the control and management of a passenger bus while in locomotion, it follows that Mr Zengin’s claimed injuries were directly caused by the driving of the bus. It was the driver who brought the bus to a halt at a location from which Mr Zengin disembarked. Given that the engine of the bus was running when Mr Zengin did disembark, it can be inferred that in causing the bus to become stationary, the driver did so by applying the bus’s braking systems. Mr Zengin only disembarked after the driver then operated the controls to open the door. In these two ways, the driver exercised actual control over the direction and management of the bus. Mr Zengin’s claimed injuries were sustained immediately upon stepping off from the bus which had been controlled and operated by the driver in this way.

In these circumstances, the submission on behalf of the Commission that ‘the driving’ of the bus included the application of the vehicle’s brakes by the driver and then the driver’s operation of the door, but did not include Mr Zengin stepping off from the bus onto the ground, is artificial and cannot be accepted.

I do not accept the Commission’s submission that, analogous with the observations by McHugh, Callinan and Heydon JJ in Container Handlers, the bus driver’s alleged negligence in this case of parking in the wrong spot was a ‘preceding act of negligence’ which did not constitute the driving of the vehicle. Their Honours’ observations must be seen in the context of the particular negligence alleged which is far removed from the present case where the plaintiff’s alleged injury occurred immediately upon him stepping off from the bus. As counsel for Mr Zengin put it, his client’s injury was the ‘immediate consequence to him of where the driver chose to stop and chose to open the door to allow the passengers to embark or disembark’.

Contrary to the submissions on behalf of the Commission, the conclusion I have reached also finds some support in the list of activities given by Heydon J in Container Handlers as falling within the meaning of ‘the driving’ of a vehicle. His Honour separately referred to the driver ‘manag[ing] and direct[ing] the course of [the vehicle’s] movement by operating the controls’ by, amongst other things, ‘braking’ and ‘stopping’. This suggests that his Honour recognised that the ‘stopping’ of a vehicle was an aspect of driving beyond the specific task of applying a vehicle’s brakes. For the reasons I have explained, the ‘stopping’ of a passenger bus is an activity particularly characteristic of passenger buses.

As submitted on behalf of the Commission, I accept that the judgments of at least McHugh and Callinan JJ in Container Handlers stand as a rejection of what was described as ‘sine qua non reasoning’ in determining whether an injury is directly caused by the driving of a vehicle. As I have explained, the conclusion I have reached is instead based upon an examination of whether Mr Zengin’s injuries were suffered as a consequence of the driver’s control of the movement and management of the bus. In adopting that approach, I have not been assisted by the decision of the Full Court in Pedersen as it is distinguishable from the present case in a number of important respects.[42]
[42]Treloar (n 6). In Pedersen, the driver had ceased driving, had left the driver’s seat and was at the steps of the bus assisting passengers to alight.

For these reasons, the question posed by Issue 1 is answered in the affirmative; Mr Zengin’s claimed injuries were ‘directly caused by the driving’ of the bus.

Issue 2: Whether the identity of the bus ‘cannot be ascertained’?

One of the requirements imposed by s 7(3) of the Act is that the motor vehicle which caused death or bodily injury by negligence ‘cannot be ascertained’. This factual requirement must be viewed in light of the proviso in subparagraph 7(3)(a) that, as soon as practicable after the happening of the accident, a claimant have ‘made due search and inquiry to ascertain the identity of the vehicle’.

The Commission contends that Mr Zengin has not made reasonable enquiries to identify the bus from which he alighted on the morning of 27 October 2015 and that reasonable enquiries to that end still remain able to be undertaken. It therefore submits that the Court cannot be satisfied that the identity of the bus cannot be ascertained.

Facts

In his evidence, Mr Zengin accepted that, after he disembarked from the bus on the morning of 27 October 2015, he could have, but did not, make a note of its number or any of its distinguishing features. He did not do so because his back was sore and he was looking for medical attention.

Mr Zengin also accepted that, immediately after the incident, he could have, but did not, ask the bus driver for his name, or the name of his employer. Nor did he make any such enquiries in the days following the incident. Mr Zengin also has not subsequently made any enquiries to determine whether the bus was owned by his employer or the joint venturer responsible for the project. Mr Zengin has however tried unsuccessfully through social media to contact the supervisor to whom he reported the incident.

Mr Zengin first sought legal advice in relation to his injuries in around May 2017. He did so after he became aware, following a conversation with a friend who was a lawyer, that he may have a right to claim compensation under Western Australian motor vehicle compensation legislation. Before that time, he did not have any knowledge about his potential right to claim compensation under the Western Australian motor vehicle compensation scheme.

In the 18 months before May 2017, it did not occur to Mr Zengin that he should seek legal advice about the incident, even though he believed he had suffered a ‘real’ injury which gave him pain and in relation to which he had lodged a claim for workers’ compensation. His focus had been on recovery and rehabilitation from his injuries, as well as on returning to employment. He had thought that any compensation entitlements he may have would be under workers’ compensation legislation.

After he sought legal advice in May 2017, Mr Zengin instructed his solicitors to notify the relevant authorities in Western Australia. His solicitor requested a copy of his WorkCover file which was received in about July 2017.

Mr Zengin’s solicitor considered that, if the legislative framework in Western Australia was similar to Victoria, the circumstances of Mr Zengin’s case would be considered a transport accident. After she satisfied herself that there was no contraindication in Western Australian law and after taking the advice of counsel, she recommended that Mr Zengin lodge a crash report with the Commission.

On 6 September 2017, Mr Zengin filled out an ‘Online Crash Report Form’, thereby notifying the Commission that he had sustained personal injury in an accident.

On 13 September 2017, Mr Zengin’s solicitor wrote to the Commission requesting a notice of intention to make a claim.

On 13 September 2017, the Commission called the plaintiff and requested information about how the accident transpired. On the same date, the Commission emailed Mr Zengin’s employer requesting all information regarding the accident.

On 18 September and 26 October 2017, the Commission emailed the workers’ compensation insurer and requested all documentation regarding Mr Zengin’s workers’ compensation claim.

On 10 November 2017, the Commission issued a liability determination that it had insufficient information to determine the fault of the incident. The Commission requested that Mr Zengin’s solicitor provide the registration number of the bus and the name of its driver involved in the incident.

On 28 November 2017, Mr Zengin’s solicitor wrote to the WorkCover insurer requesting details of the registration of the bus involved in the incident and the name of the bus driver. The following day she made the same request of Mr Zengin’s employer Kentz. She did not receive any reply to these requests. There is no evidence indicating that any steps were taken to follow up WorkCover and Kentz in relation to these requests. Mr Zengin’s solicitor accepted that there was nothing to prevent her now making those further enquiries.

On 29 November 2017, Mr Zengin’s solicitor wrote to the Commission informing it of the steps that she had taken to identify the vehicle registration and/or the name of the driver.

On 2 May 2019, the Commission’s solicitors subpoenaed the workers’ compensation insurer and requested all documentation relating to Mr Zengin’s workers’ compensation claim.

Since the proceeding was commenced, on 8 August 2019 Mr Zengin’s solicitor has also issued subpoenas against Chevron and the Shire of Ashburton, the local municipality responsible for Barrow Island, in an attempt to ascertain the details of the bus driver or the registration of the bus involved in the incident. These entities produced documents in answer to the subpoenas on 6 September and 13 September 2019 respectively.

The documents produced in answer to these subpoenas did not reveal any information about the registration details of the bus or the name of the driver. However, the documents produced by Chevron included the following:

(a) A document which identified various minimum specifications for heavy vehicles and mobile equipment including that ‘[a]ll vehicles are to be marked on both sides and the rear with an easily identifiable number and the name of the company by which the vehicle is operated’.

(b) A document entitled ‘Barrow Island Commuting Plan’ dated 5 July 2011 which included the following paragraph (emphasis added):

As the accommodation camps are located approximately 3 to 4 km south of the LNG Plant workers need to be commuted to and from their work sites. KJVG [the joint venturer] has purchased and made available to contractors a fleet of buses for this purpose. The bus fleet consists of 41 fifty seater, 4 forty seater, 13 twenty seater and 6 twelve seater buses. In principle, buses are allocated to contractors according to their need.

Despite the information referred to in subparagraph (b), Mr Zengin’s solicitor has not made any enquiries of the joint venturer about whether it has any information relating to the incident with Mr Zengin, including whether it owned the bus involved in the incident. The solicitor was therefore unable to confirm whether or not the joint venturer owned the bus involved in the incident, or all of the larger buses used on Barrow Island. She agreed that she could have made these enquires and that it remained open for her to do so.

After Chevron produced documents in answer to the subpoena issued on behalf of Mr Zengin, the Commission made its own enquiries of Chevron. In response, Chevron’s Senior Legal Counsel provided a letter to the Commission which, amongst other things, confirmed that the subpoena was the first occasion Chevron was notified of the incident involving Mr Zengin and that:

… according to Chevron employees with knowledge of bus transport operations on Barrow Island since 2015:
a. no buses supplied by Chevron’s EPCM Contractor, Kellogg Joint Venture Group or its subcontractors, on Barrow Island were registered (noting buses currently used on Barrow Island are also not registered);
b. buses on Barrow Island were not usually driven by Chevron employees, but rather employees of relevant contractors and subcontractors;
…

Submissions on behalf of Mr Zengin

It was submitted on behalf of Mr Zengin that the Court should be comfortably satisfied that the identity of the vehicle involved in the incident on 27 October 2015 cannot be ascertained because:

(a) there was no basis upon which the bus driver would have realised that Mr Zengin had been injured; and

(b) no useful information was obtained from the various enquiries made by the Commission on 13 September 2017, 18 September 2017, 26 October 17 and 10 November 2017 referred to above, as well as the subpoenaing of the workers’ compensation insurer on 2 May 2019.

These matters, in conjunction with the fact that there were ‘multiple buses; … running backwards and forwards; … a thousand workers; people are flying in; people are flying out’, meant that identifying the vehicle involved in the incident was like trying to find a ‘needle-in-a-haystack’.

Consideration

It may be accepted that, in the circumstances of this case including by reason of the matters referred to by Mr Zengin, the prospects of identifying the vehicle involved in the incident on 27 October 2015 are remote. However, that is not the question posed by s 7(3) of the Act. In order to engage the section, the Court must be affirmatively satisfied, on the balance of probabilities, that the vehicle cannot be ascertained.

There are two lines of enquiry directed at determining the identity of the vehicle involved in the incident which remain incomplete and cannot be viewed as peripheral or speculative.

First and most significantly, one of the documents produced on subpoena by Chevron indicates that the joint venturer purchased a fleet of buses for the purpose of transporting workers from their accommodation to their worksite.[43] This is self-evidently important information as it would suggest that the bus used by Mr Zengin on 27 October 2015 was owned by the joint venturer. Despite this, no enquiries have been made of the joint venturer by Mr Zengin or his solicitor to determine whether it has any information relating to the incident, including whether it owned the bus involved in the incident. Although the above information was contained in a single paragraph of one of the subpoenaed documents produced by Chevron which was only produced on 6 September 2019, as Mr Zengin’s solicitor properly acknowledged, there is no impediment to these enquiries being made.
[43]See [81(b)] above.

Secondly, Mr Zengin’s solicitor has not followed up her request of Kentz made on 29 November 2017 – to which she received no reply – to provide details of the registration of the bus involved in the incident and the name of the bus driver. The making of such an enquiry of Mr Zengin’s employer was an obvious and important step to seek to identify the vehicle involved in the incident. Its importance was confirmed by the paragraph of the document referred to above that was produced by Chevron on subpoena which states that the buses purchased by the joint venturer were made available to or allocated to contractors. Similarly, the letter from Chevron’s Senior Legal Counsel to which reference has been made stated that ‘buses on Barrow Island were not usually driven by Chevron employees, but rather employees of relevant contractors and subcontractors’.

As I have explained, the making of the above requests and enquiries were important steps which could have been taken to determine whether the identity of the vehicle involved in the incident could be ascertained. They are enquiries which would not have been burdensome to make. They are reasonable steps which, in the circumstances of this case, were required to be undertaken to ensure that ‘due search and inquiry’ had been made to ascertain the identity of the vehicle involved in the incident. While those steps remain outstanding, I am not satisfied on the balance of probabilities that the vehicle which transported Mr Zengin on the morning of 27 October 2015 cannot be ascertained.

Issue 3: Discretion to forgive Mr Zengin’s failure to give notice

Given the conclusion I have reached in relation to Issue 2, it is strictly unnecessary to determine the remaining issue. I will however do so in deference to counsels’ submissions and the possibility that this matter may proceed further.

This issue arises due to the concession made by senior counsel for Mr Zengin that his client failed to satisfy the proviso in s 7(3)(b) of the Act which required Mr Zengin to give written notice of the claim to the Commission together with a short statement of the grounds relied upon ‘as soon as practicable after the happening of the accident’. Mr Zengin did not notify the Commission of his claim until September 2017, some 22 months after the incident.[44]
[44]See the matters referred to in [72]–[73] above.

Mr Zengin seeks to be relieved of the effect of this failure by relying on s 29A of the Act which states:

Notwithstanding the provisions of section 7(2) and (3), section 8(5), and section 29(1), where the court in which an action is brought, or (as the case may be) is sought to be brought, to recover damages against an insured person or the Commission in respect of the death of, or bodily injury to, any person, directly caused by, or by the driving of, an insured or an uninsured motor vehicle, considers the failure to give notice, or the defect in any notice, or the failure to make due search and inquiry, as required by one or other of those subsections, was occasioned by mistake, inadvertence or any other reasonable cause or that the Commission is not materially prejudiced in its defence or otherwise by the failure or defect, the court may—
(a)where the action is commenced, at any stage of the proceedings, if it thinks fit, relieve the plaintiff of the effect of that failure or defect; or
(b)where an action is sought to be brought, if it thinks fit, grant the applicant leave to proceed, notwithstanding that failure or defect.

It is apparent from its terms that s 29A gives the Court a discretion to grant a plaintiff an indulgence in relation to a failure to give the required notice, or to make due search and inquiry, where that failure was ‘occasioned by mistake, inadvertence or any reasonable cause or that the commission is not materially prejudiced in its defence or otherwise’. The question is whether that discretion is enlivened in the circumstances of this case and, if it is, whether I should exercise it in Mr Zengin’s favour.

The above expression in s 29A is to be read disjunctively.[45] In light of the concession made on behalf of Mr Zengin that the Commission has suffered prejudice as a result of his failure to give the required notice (addressed further below), only the first limb is capable of being engaged in the circumstances of this case, namely, where the failure was ‘occasioned by mistake, inadvertence or any reasonable cause’. In order for the discretion in s 29A to be engaged, it will be sufficient for Mr Zengin to establish this without having to also demonstrate that the Commission has not been materially prejudiced.
[45]Blum v Motor Vehicle Insurance Trust [1966] WAR 121 (‘Blum’).

The only authority dealing with the meaning of the expression ‘mistake, inadvertence or any reasonable cause’ in s 29A to which my attention was drawn is the decision of the District Court of Western Australia in Morrissey v Nigoscik.[46] Yeats DCJ stated as follows:[47]

The concept of mistake, inadvertence or any other reasonable cause was discussed in Summerville v Johnston (1979) 1 SR (WA) 207 at 211 per Heenan DCJ (as he then was).
The ordinary meaning of ‘mistake’ is misconception of the meaning of something; hence, an error or fault in thought or action. The ordinary meaning of ‘inadvertence’ is failure to observe or pay attention; inattention or negligence. See The Shorter Oxford English Dictionary, 3^rd ed revised.
Here, the use of the words in the same expression points up the difference between them. Mistake involves an error following advertence to the subject matter, whereas inadvertence means the opposite of deliberate thought or action. Mere forgetfulness is not mistake but it may be inadvertence. Equally clearly ignorance is not mistake but it might be inadvertence. Indeed it seems quite clear that ignorance of the law may fall within the word ‘inadvertence’… In s 29A, both words are governed by the phrase ‘any other reasonable cause’, so that the inadvertence must be reasonably based and in itself provide a reasonable explanation for what has followed.

The Full Court of the Supreme Court of Western Australia dismissed an appeal from this judgment, but did not address the above observations.

[46](District Court of Western Australia, Yeats DCJ, 27 February 1997).

[47]Ibid 13.

Submissions

Senior counsel for Mr Zengin submitted that his client’s case was capable of being properly characterised alternatively as mistake (Mr Zengin’s belief that any compensation entitlements he might have in relation to the incident would be under workers’ compensation legislation);[48] inadvertence (ignorance of his potential right to claim compensation under the Western Australian motor vehicle compensation scheme);[49] or, more generally, ‘any reasonable cause’.
[48]See [69] above.
[49]See [68] above.

Whichever of these characterisations is adopted, the essential element is reasonableness. In that regard, the central contention advanced on behalf of Mr Zengin as to why it was reasonable for him not to have given the requisite notice under the Act was that, given his belief that any rights to compensation relating to the incident arose from workers' compensation and given how swiftly after the incident he left Barrow Island, it was inherently reasonable for him to proceed in the way he did. To conclude otherwise, it was submitted that it would have been necessary for Mr Zengin to have been aware of his rights under the Act. He was completely ignorant of those rights.

The Commission submitted that the Court’s jurisdiction under s 29A of the Act was not enlivened. Mr Zengin’s failure to give notice was submitted not to be an instance of mistake because ‘mistake’ had the meaning, 'I meant to do it, but I didn't’. Neither was it inadvertence which was said to mean, 'I was going to do it, or somebody told me to do it, but it left my mind'.

As to ‘any other reasonable cause', the Commission submitted that it was not sufficient for Mr Zengin to seek to engage the Court’s discretion on the basis that he was ignorant about the relevant motor vehicle laws in circumstances where he did not, until about 18 months after incident, seek any advice about the matter. An assessment of whether there existed reasonable cause should be linked to whether or not a plaintiff had, or could have obtained, relevant information and advice. In support of that proposition, the Commission relied on the following statement by Sackville AJA in Nominal Defendant v Meakes (with which McColl JA agreed) as indicating what might reasonably be expected to be done by a victim of a motor vehicle accident:[50]

In assessing the “due inquiry and search” that should have been undertaken in this case it is appropriate to treat the respondent as a reasonably informed member of the community. Such as person could be expected to know that a victim injured in a motor vehicle accident, where another person is at fault, may be able to claim compensation from the person at fault. Where the victim is a pedestrian, a reasonably informed member of the community could be expected to appreciate that it is important to obtain the registration number of the vehicle and, if possible, the details of the driver in order to pursue any claim for compensation.

[50]Nominal Defendant v Meakes (2012) 60 MVR 380, 397 [71] (‘Meakes’).

Consideration

In considering whether the discretion in s 29A of the Act is engaged, it is necessary to focus on why Mr Zengin failed to provide the Commission with a notice in accordance with s 7(3)(b) of the Act. The facts in that regard are straightforward. Mr Zengin did not know of his right to claim compensation under the Act until he first sought legal advice in around May 2017, some 18 months after the incident. Before then, he had thought that any compensation entitlements he may have would be under workers’ compensation legislation. He had lodged a workers’ compensation form three days after the incident, which claim had been accepted.

The proviso in s 7(3)(b) of the Act required Mr Zengin to give the Commission written notice of a claim and a short statement of the supporting grounds as soon as practicable after the happening of the accident. It is apparent from the above facts that Mr Zengin was unaware of this obligation; before May 2017 he did not turn his mind to the possibility he might have any entitlement to compensation under the Act. In this way, Mr Zengin’s failure to give notice is properly characterised as being occasioned by inadvertence within the ordinary meaning of the word. There is no indication that ‘inadvertence’ as used in s 29A carries anything other than its ordinary meaning. The Shorter Oxford English Dictionary contains the following definitions:

inadvertent: 1. Of a person: not properly attentive or observant. 2. Of an action: unintentional.
inadvertence: The quality or character of being inadvertent; inattention; carelessness; an instance of this.

The meaning of ‘inadvertence’ asserted on behalf of the Commission[51] (for which no authority or reference was provided) is inconsistent with these definitions as it incorrectly assumed or required that the failure to take the relevant action occurred despite a pre-existing intention to take the action. I do not consider that to be a necessary aspect of the ordinary meaning of ‘inadvertence’. To the contrary, the above definitions suggest that an action will be inadvertent if it is unintentional.
[51]'I was going to do it, or somebody told me to do it, but it left my mind'.

I also consider that, in the circumstances of this case, Mr Zengin’s inadvertence about his rights and obligations under the Act was reasonably based. First, from a layperson’s perspective, the incident did not include a feature typical of accidents covered by motor vehicle compensation schemes, namely a collision involving one or more vehicle(s). Secondly, it was reasonable for Mr Zengin as a layperson to assume that, because the incident occurred while he was transported from his supplied accommodation to his workplace, the framework which would apply to any entitlement he might have to compensation would be that established by workers’ compensation legislation. Thirdly, Mr Zengin acted consistently with this belief and lodged an application for workers’ compensation which was then accepted.

The facts of this case are very different from those considered in Meakes on which the Commission relied.[52] Sackville AJA’s observations about what a reasonably informed member of the community could be expected to know and do, must be understood by reference to the facts of that case. As the Commission properly acknowledged, whether there existed ‘any other reasonable cause' for Mr Zengin’s failure to provide the requisite notice under the Act, will depend upon the Court’s consideration of the particular circumstances of his case. It may also be noted that Sackville AJA’s comments were made in relation to the assessment of whether there had been ‘due inquiry and search’ and did not specifically relate to a provision analogous to s 29A of the Act.
[52]See Meakes (n 50).

For these reasons, I consider that the Court’s discretion under s 29A is engaged because Mr Zengin’s failure to give the requisite notice was occasioned by inadvertence or by reasonable cause.

In Blum,[53] Jackson J described the approach to the exercise of the discretion in s 29A as follows:[54]

The considerations which should determine the exercise of the discretion are not stated, but it seems reasonable to conclude that it should be exercised upon a consideration of the whole of the circumstances of each case, including in particular the nature of the mistake or inadvertence or other reasonable cause, and the extent and degree of the likely prejudice (if any) to the Trust. I doubt if it will be possible to lay down any rigid test under the section.

His Honour also observed that ‘[i]n case of doubt, s 29A should be applied benevolently in favour of an injured person so as to accord with its evident legislative intent’.[55]

[53]Blum (n 45).

[54]Ibid 126.

[55]Ibid 127.

The Commission adduced evidence of what it submitted was the prejudice to which it would be subject in the event that the Court exercised its discretion to relieve Mr Zengin of his failure to provide the notice in accordance with s 7(3)(b) of the Act. That evidence, which was not the subject of any challenge by Mr Zengin, is summarised below.

The capacity to investigate a claim for damages under the Act is imperative to the proper management of claims by the Commission. Common lines of inquiry pursued by the Commission include investigating whether the accident the subject of claim actually occurred; whether the Commission might have a statutory right of recovery against an indemnified driver in relation to any damages flowing from the accident; whether any injuries were sustained by the claimant as a result of the accident; and what medical treatment a claimant may require in order to minimise any loss associated with the accident.

If any of these investigations are unable to be carried out, the Commission will be prejudiced in its ability to defend any claim and to investigate and/or mitigate any damages flowing from the accident.

In relation to Mr Zengin, because inquiries and due searches were not made as soon as practicable after the incident and in light of the documentation produced under subpoena by Chevron, the Commission has been unable to identify the vehicle and the driver involved in the incident.

Further, Mr Zengin’s failure to report the incident until 6 September 2017 and his failure to undertake due searches to identify the bus or to determine the identity of the driver denied the Commission a meaningful opportunity to: (a) promptly take steps to identify the motor vehicle in question, its driver or its owner; (b) seek statutory recovery from the owner or driver of the motor vehicle; and (c) verify the circumstances of the incident, including whether or not it occurred as alleged by Mr Zengin.

As I have noted, Mr Zengin did not contest any of this evidence going to the prejudice to which the Commission has been subject. Instead, he reiterated the matters to which reference has already been made which I have found established that his failure to comply with the notice requirement was occasioned by inadvertence or reasonable cause. It was also submitted that s 7(3) of the Act made clear that the legislative scheme envisaged that, in certain circumstances, the Commission will end up being a defendant to a claim in circumstances where it would otherwise not.

These submissions do not persuade me to exercise the discretion in s 29A in Mr Zengin’s favour to excuse his failure to provide the notice required by s 7(3)(b) of the Act. They do not in any way engage with the prejudice to which the Commission is subject as a result of Mr Zengin’s failure to provide the notice. The evidence and submissions relied on by the Commission indicate that that prejudice is real and substantial. As the evidence before the Court indicates, in the time that has elapsed since the incident and given the nature of the work site as a construction project with a fly-in fly-out workforce, it has proven extremely difficult to identify the bus and the driver. If notice had been given as ‘as soon as practicable after the happening of the accident’, there would have been a substantially greater prospect of identifying the bus to the extent required for the Commission to being a recovery claim. Further, as submitted by the Commission, it may be that, if the buses used to transport Mr Zengin were not registered as is indicated in the documents produced by Chevron under subpoena, the Commission may not have any liability in respect of the incident except pursuant to s 7(3).

A further matter of some significance in exercising my discretion under s 29A concerns the very lengthy delays associated with the bringing and prosecution of Mr Zengin’s claims. The matters relied upon by Mr Zengin to establish a reasonable basis for the delay in notifying the Commission of his claim only operate to explain the delay of approximately 18 months between the incident and when he sought legal advice in May 2017. A further four months elapsed before Mr Zengin notified the Commission about the incident. Inquiries directed at identifying the bus and the driver were not then made for another two months and, as has been noted, were not followed up. It was then not until August 2019, more than two years after Mr Zengin engaged solicitors, that a subpoena was issued to Chevron to ascertain the details of the driver and the bus involved in the incident.

Although there is some explanation for what occurred between May 2017 and September 2017, no reasonable explanation for the other delays has been advanced or is apparent on the evidence. These delays have further exacerbated the prejudice to which the Commission has been subject as a result of Mr Zengin’s failure to provide the required notice. In the exercise of my discretion, it would be unreasonable to, in effect, visit responsibility for these further delays on the Commission.

For these reasons, in the exercise of my discretion under s 29A of the Act, I do not consider it appropriate to excuse Mr Zengin from his failure to comply with the proviso in s 7(3)(b) of the Act.

Disposition

The parties are to submit proposed orders giving effect to these reasons for judgment within 7 days.

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[2020] VSC 237

1 May 2020