Zotti v Australian Associated Motor Insurers Limited

[2010] HCATrans 62

[2010] HCATrans 062

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  City  No S297 of 2009

B e t w e e n -

GIOVANNI ZOTTI

Applicant

and

AUSTRALIAN ASSOCIATED MOTOR INSURERS LIMITED

First Respondent

RAFAEL BASA

Second Respondent

Application for special leave to appeal

GUMMOW J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 MARCH 2010, AT 2.25 PM

Copyright in the High Court of Australia

MS S. NORTON, SC:   If the Court pleases, I appear for the applicant with my friend, MS E.E.J. WELSH.  (instructed by Maxwell Berghouse & Ives)

MR L. KING, SC:   May it please the Court, I appear with MR R.A. CAVANAGH for the first respondent.  (instructed by Moray & Agnew)

GUMMOW J:   What is the position with the second respondent?

MS NORTON:   The second respondent has been served in accordance with directions with copies of the application book.  He was served with copies of our submissions and he was rung two days ago to be told that it was on.  He has never expressed an interest.  An affidavit of service is with the Registry.

GUMMOW J:   Thank you.  Yes, Ms Norton.

MS NORTON:   This is an application for special leave to appeal from a unanimous decision of five judges of the New South Wales Court of Appeal.  Those judges upheld a decision of a judge of the District Court of New South Wales who found that the accident in which the applicant was injured was not a motor accident within the insurance cover of the Motor Accidents Compensation Act (NSW). There has not been any hearing on the merits of the matter so the facts are still not found. In short the applicant alleges that he was riding his bicycle, he had an accident because he rode over a patch of oil that was on the ground left from an accident which had occurred some as yet undiscovered exactly time prior to him reaching the scene.

We are aware that the Court has looked at the definition of “motor accident” in the New South Wales statute relatively recently and in the Western Australian Act and in the Queensland Act.  We say the facts of those cases are remote from the facts of the present case.  This case does not concern a dispute between whether it is a work injury or a motor accident injury.  It is not a dispute between two insurance companies as to which one is at risk in the particular factual circumstances.  It is not a case which involves a defect in a motor vehicle and it is not a loading and unloading case.  It is a case which potentially goes to the very core of the system of compulsory third party insurance that has been operating in New South Wales and in other States since the 1940s.  It concerns injuries caused by and resulting from the negligent driving of the second respondent, Mr Basa.

If the decision stands, road users who are injured other than at the moment of impact with a vehicle, such as rescuers who injure themselves trying to extradite people from vehicles, people who develop post‑traumatic stress disorder or any other kind of mental illness that does not happen instantly, people who develop clots, people who develop pneumonia, who develop some other disability are, it would appear, not within the cover of the third party compulsory insurance.

GUMMOW J:   Can we just ask you, if you were successful in obtaining special leave would you be seeking to have us reopen Allianz?

MS NORTON:   No.  I do not think it needs to be.  There is one paragraph in there where the word “sustained” appears.  Perhaps if we go to Allianz in that section and I just point out - the only point where I think – the point was attempted to be made in the Court of Appeal that Allianz deals with the defect section which is subsection (4) of the definition, not with subsections (1) to (3).

BELL J:   But I think the Chief Justice pointed out that it was difficult to confine it to subparagraph (4) and his Honour’s reasoning did not depend wholly upon the dicta in Allianz but on the view that the words “caused during” would be surplusage if another approach were adopted.

MS NORTON:   The issue that caused the most difficulty in the oral discussions at least in the court below was the use of the word in paragraph 94 which your Honour may remember.  At paragraph 94 it says:

One criterion is that the injury be sustained during certain events, including the driving of the vehicle or a collision with the vehicle or its running out of control.  The other criterion is that the injury be sustained as a consequence of those events.  The phrase ‘as a result of’ is linked to the first or temporal criterion; the phrase ‘is caused’ is linked to the second criterion.

It then goes on with the part that we have no argument with:

For sub‑para (iv), the temporal criterion is that the injury be a result of the use or operation of the vehicle because it was sustained during that activity.  The other criterion is that the injury be caused by a defect in the vehicle.

We say with respect to that paragraph where it refers to subparagraph (iv) it is clearly what the Court meant.  We do not challenge that that is correct.  What we say is with respect to subparagraphs (i) and (iii) it is not quite so clear that the Court meant the temporal nexus had to be that the injury was sustained during the activities of driving.  With respect to the other decisions in the matter of Allianz, in the decision of Justice McHugh at paragraphs 18 and 19, he points out what he considered the definition requires, again highlighting the difference between paragraphs (i) and (iii) and paragraph (v).

The definition requires the injury to be caused by something inanimate only where there is a defect in the vehicle (the injury is a result of and is caused during . . . such use or operation by a defect in the vehicle).  The other conditions in sub‑paras (i)‑(iii) require that the injury:

·    be a result of the driving of the vehicle or a collision (or action taken to avoid a collision) or the vehicle running out of control -

·    be caused during the driving, the collision (or action taken to avoid a collision) or the vehicle running out of control (the temporal requirement.

His Honour then makes it, we say, clearer that the temporal requirement is different for subsection (iv) in his opinion than subsections (i) to (iii) when he returns to discussing it in paragraphs 39 and 40 of the judgment.  We say that if what the majority said in paragraphs 93 and 94 is truly in line with what Justice McHugh was saying here in 39 and 40 then it does not need to be set aside.  At 39 he says:

In contrast to sub‑paras (i)‑(iii) of the definition, the expression “a result of” appears to have little work to do in relation to sub‑paras (iv).  Sub‑paragraphs (i)‑(iii) impose a temporal requirement – that the injury be caused during the driving of the vehicle, a collision (or action taken to avoid a collision) or the vehicle’s running out of control – and a causal requirement – that the injury be a result of those activities.  But sub‑para (iv) imposes the temporal requirement that the injury be caused during the use or operation of the vehicle and the causal requirement that the injury be caused by the defect.

He then goes on to explain it a bit further in paragraph 40, about how “as a result of” interacts with “cause”.  In answer to your Honour’s question if what was meant in paragraph 94 of Allianz was that not just subparagraph (iv) required the injury to occur during the named events then we would have to face that it would have to be set aside or looked at again.    
           But if what was meant was that sub‑paragraphs (i)‑(iii) had a temporal requirement but a different temporal requirement as explained by Justice McHugh then it would not require any further explanation of Allianz.  We are not saying Allianz was wrong on the facts or was wrong with respect to defects.  It is just whether that word “sustained” in paragraph 94 was really an indication that the injury had to actually be

sustained as in occur at the time of impact or at the time of driving, if that makes it clear.

GUMMOW J:   All right.  I think we would be assisted if we heard now from Mr King.

MR KING:   May it please, your Honours.  In my submission the difficulty for my learned friend and what impelled a very clear obiter statement in Allianz in paragraphs 93 and 94 is the presence of the word “during”.  That is the key to it, with respect.  At the risk of irritating your Honours I will read you the Macquarie Dictionary definition:

1.throughout the continuance of. 

2.in the course of.

There is, in my submission, no doubt that the plurality reasons in Allianz placed a construction on the definition of “injury” which took up “during”.  The Chief Justice in the Court of Appeal in this case added to it in respect of the concept of how long a collision lasts.  What this Court did was to note the tightening up or narrowing of the concept of “injury”.  This Court returned to it in Nominal Defendant v GLG.  I will hand up, if I may, three copies of the headnote and the relevant passage of that decision.  It is the second sentence in paragraph 29, which is page 541.  Your Honours will see that the Court there with the exception of the dissentient Justice Kirby said:

That in turn points to the need to examine fault in the actual use or operation of the forklift truck at the particular time and place of the injury ‑

It is not as though what was done in Allianz has not been reinforced – it has been reinforced.  Your Honours, the result in this case in my submission is to be seen as a consequence of the narrowing of the concept of “injury”.  It is something that some people may see as unsatisfactory but it is a rational consequence of the narrowing of the concept.  It is an atypical type of accident.  The facts in this case show that accidents of this kind can and do happen but the reach of the legislation is shown by the definition to be to the more common or garden variety accident.  Your Honours, with respect, I do not know that there is anything more to say about it.

BELL J:   Allianz and GLG and the reference to the narrowing of the concept of “injury” really do not answer the issues Justice Campbell deals with in his reference to the extrinsic material with respect to the introduction of the definition.  Those cases are factually far removed from the present.

MR KING:   With respect, your Honour, what this Court said in paragraphs 93 and 94 places a crystal clear construction which embraces this case.  What Justice Campbell did was to engage in an exegesis of a second reading speech which, with respect, does not alter the state of affairs.  When you have all five of them saying that this Court meant what it obviously said, in my submission it is not a special leave situation.  I do not know that there is anything to add, your Honour.

GUMMOW J:   There will be a grant of special leave in this matter.  It will be a one‑day appeal.  The parties should be prepared to be ready for a listing in the May sittings.

We will now adjourn to reconstitute.

AT 2.40 PM THE MATTER WAS CONCLUDED