Zerella Holdings Pty Ltd v Williams - [2012] SASCFC 100

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Civil)

ZERELLA HOLDINGS PTY LTD & ANOR v WILLIAMS & ANOR

[2012] SASCFC 100

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Blue)

24 August 2012

INSURANCE - MOTOR VEHICLES - COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES - PUBLIC STREET, ROAD, HIGHWAY, PLACE ETC

INSURANCE - MOTOR VEHICLES - COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES - UNINSURED VEHICLE - LIABILITY OF NOMINAL DEFENDANT - OTHER MATTERS

Appeal from a judge of the District Court – second respondent (plaintiff) sustained injuries in the course of a forklift being used to unload a B double semi-trailer in the loading bay of the appellant company’s business premises – the forklift was uninsured - the plaintiff joined the Nominal Defendant (the second respondent) as a defendant to the proceedings – the preliminary issue for the trial judge was whether the loading bay was a “road” or “road-related area” as defined in s 5 of the Motor Vehicles Act 1959 (SA) – appeal against finding on preliminary issue – whether the loading bay area is a place “open to or used by the public” – whether the trial Judge erred in his conclusion.
Held (Kourakis CJ and Blue J): Appeal dismissed – to determinine whether private premises are open to or used by the public, it is necessary to consider both the terms upon which the occupier permits legal access and the terms upon which persons actually have access – there is a distinction between a general invitation extended without discrimination to the public and a series of invitations restricted to specific invitees for the purpose of transacting business with the occupier or otherwise – in this case the invitees were not members of the public and the use of the loading bay for its intended purpose of loading carrier vehicles did not make it an area that was open to or used by the public – the trial Judge correctly concluded that the loading bay was not a “road” or “road-related area”.
(Gray J dissenting): the trial Judge failed to adequately consider the term “road-related area” – customers of the appellant’s business premises drove into, and made substantial use of, the loading bay area – in all, hundreds of vehicles drove into the loading bay area each week – the evidence was sufficient to allow a conclusion to be reached that the loading bay area was “open to or used by the public” and hence within the term “road-related area” as defined in section 5 of the Motor Vehicles Act 1959 (SA).
Schubert v Lee (1946) 71 CLR 589, applied.
Bugge v Taylor [1941] 1 KB 198; Chappell & Co Ltd v Associated Radio Co of Australia Ltd [1925] VLR 350; Dwyer v Police [2005] SASC 31; (2005) 90 SASR 593; Harrison v Hill [1932] SC (J) 13; McBain v Reyne (1998) 69 SASR 580; Mercantile Mutual Insurance Co Ltd…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] SASCFC 100
Decision Date: 24 August 2012

CaseChat Overview and Summary

Zerella Holdings Pty Ltd appealed to the Full Court of the Supreme Court of South Australia against a decision of a District Court judge. The dispute concerned whether a loading bay at the appellant's business premises constituted a "road" or "road-related area" for the purposes of the *Motor Vehicles Act 1959* (SA). This determination was a preliminary issue in proceedings brought by the second respondent, who sustained injuries while a forklift was being used to unload a semi-trailer in the loading bay. The forklift was uninsured, and the plaintiff had joined the Nominal Defendant as a defendant.

The central legal issue before the Full Court was whether the trial judge had erred in concluding that the loading bay was not a "road" or "road-related area" as defined by section 5 of the *Motor Vehicles Act 1959* (SA). This required the court to consider whether the loading bay was a place "open to or used by the public" within the meaning of the Act.

Kourakis CJ and Blue J, dismissing the appeal, reasoned that to determine if private premises are open to or used by the public, one must examine both the occupier's terms for legal access and the actual access granted. They distinguished between a general invitation to the public and specific invitations for business purposes. In this instance, the invitees were not considered members of the public, and the use of the loading bay for its intended purpose of loading carrier vehicles did not render it an area open to or used by the public. Consequently, they upheld the trial judge's conclusion.

Gray J, dissenting, found that the trial judge had not adequately considered the term "road-related area." His Honour noted that customers drove into and made substantial use of the loading bay, with hundreds of vehicles entering the area weekly. This evidence, in his view, was sufficient to conclude that the loading bay was "open to or used by the public" and therefore fell within the definition of a "road-related area."

Orders