Zotti v Australian Associated Motor Insurers Ltd

[2009] NSWCA 323

Appeal Outcome: Special leave granted by the High Court, 12 March 2010 s297/2009 [2010] HCATrans 62
Matter discontinued by the parties

New South Wales

Court of Appeal

CITATION:	Zotti v Australian Associated Motor Insurers Limited [2009] NSWCA 323 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	13 August 2009
JUDGMENT DATE:	8 October 2009
JUDGMENT OF:	Spigelman CJ at 1; Allsop P at 38; Hodgson JA at 52; McColl JA at 66; Campbell JA at 67
DECISION:	1 Order that Rafael Basa be joined as second respondent to these proceedings. 2 Grant leave to appeal. 3 Direct the applicant to file a Notice of Appeal within 14 days of the date hereof. 4 Appeal dismissed with costs.
CATCHWORDS:	TORTS - negligence - road accident cases - compulsory third party insurance - definition and scope of “injury” in Motor Accidents Compensation Act 1999 - STATUTORY INTERPRETATION - acts of parliament - interpretation - Motor Accidents Compensation Act 1999 - meaning of “collision” and “injury” - involves causal and temporal criteria - WORDS AND PHRASES - “as a result of” - “caused during” - “collision” - “injury”
LEGISLATION CITED:	Interpretation Act 1987 Limitation Act 1969 Motor Accidents Act 1988 Motor Accidents Amendment Act 1995 Motor Accidents Compensation Act 1999 Motor Accidents Compensation Amendment Act 2006 Motor Accident Insurance Act 1994 (Qld) Motor Vehicles Act 1959 (SA) Motor Vehicle (Third Party Insurance) Act 1943 (WA) Uniform Civil Procedure Rules 2005 Workers Compensation Act 1987
CASES CITED:	Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 Australian Casualty Co Limited v Federico [1986] HCA 32; 160 CLR 513 Barnes v Addy (1874) LR 9 Ch App 244 City Centre Cold Store Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 739 Clover, Clayton & Co Limited v Hughes [1910] AC 242 Commonwealth v Butler [1958] HCA 56; 102 CLR 465 Conkey & Sons Ltd v Miller (1977) 51 ALJR 583 Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373 Dickinson v The Motor Vehicle Insurance Trust [1987] HCA 49; 163 CLR 500 Dominello v Dominello [2009] NSWCA 95; (2009) 52 MVR 292 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Government Insurance Office (NSW) v R J Green & Lloyd Pty Ltd [1966] HCA 6; 114 CLR 437 HIH Casualty & General Insurance Ltd v Waterwell Shipping Inc (1998) 43 NSWLR 601 Hooker v Gilling [2007] NSWCA 99; (2007) 48 MVR 136 Howard Fire Insurance Company v Norwich & New York Transportation Company 79 US 194 (1870) Inasmuch Community Inc v Bright [2006] NSWCA 99; (2006) 45 MVR 234 J J Lloyd Instruments Ltd v Northern Star Insurance Co Ltd (The ‘Miss Jay Jay’) [1987] 1 Lloyd’s Rep 32 Kooragang Cement Pty Ltd v Bates (1994) 10 NSWCCR 796 Lasermax Engineering Pty Limited v QBE Insurance (Australia) Limited [2005] NSWCA 66; 13 ANZ Insurance Cases 61-643 March v Stramare (E & MH) Pty Ltd [1991] HCA 12; 171 CLR 506 McCarthy v St Paul International Insurance Co Ltd [2007] FCAFC 28; 157 FCR 402 National & General Insurance Co Ltd v Chick [1984] 2 NSWLR 86 Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 Pickersgill v Freightbases Pty Ltd [1983] 3 NSWLR 117 S and Y Investments (No 2) Pty Ltd (in liq) v Commercial Union Assurance of Australia Ltd (1986) 44 NTR 14 Smith, Hogg & Co Ltd v Black Sea & Baltic General Insurance Co Ltd [1940] AC 997 Solution 6 Holdings Ltd v Industrial Relations Commission (NSW) [2004] NSWCA 200; (2004) 60 NSWLR 558 State Government Insurance Commission v Stevens Brothers Pty Ltd [1984] HCA 32; 154 CLR 552 Walfertan Processors Pty Ltd v Dever [2006] NSWCA 289; (2006) 47 MVR 140
PARTIES:	Giovanni Zotti (Appellant) Australian Associated Motor Insurers Limited (Respondent)
FILE NUMBER(S):	CA 40076/ 09
COUNSEL:	S Norton SC (Appellant) R Cavanagh / S J Walsh (Respondent)
SOLICITORS:	Maxwell Berghouse & Ives Solicitors (Appellant) Moray & Agnew (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	3688/ 08
LOWER COURT JUDICIAL OFFICER:	Neilson DCJ
LOWER COURT DATE OF DECISION:	16 December 2008

- 6 -

CA 40076/09

SPIGELMAN CJ
ALLSOP P
HODGSON JA
McCOLL JA
CAMPBELL JA

Thursday 8 October 2009

Giovanni Zotti v Australian Associated Motor Insurers Limited

FACTS

On 19 December 2005 the applicant had an accident when he lost control of his bicycle at an intersection and was seriously injured. Less than two hours beforehand there had been a motor vehicle collision at the intersection involving a vehicle driven by Mr Basa. The applicant submits that an oil slick remained on the road following the motor vehicle collision, and this caused his accident. The respondent in this Court is the compulsory third party insurer of Mr Basa.

On 12 August 2008 the applicant commenced proceedings in the District Court against Mr Basa. It was necessary for the applicant to seek leave to reinstate his claim pursuant to s 110 (5) Motor Accidents Compensation Act 1999 (“the Act”) due to non-compliance with a notice to commence proceedings under s 110.

On 16 December 2008, Neilson DCJ dismissed the proceedings on the basis that, although the applicant had a full and satisfactory explanation for non-compliance, the proceedings were futile because there was no temporal connection between the oil spillage and the bicycle accident and hence there was no “injury” attracting the operation of the Act.

The issue before the Court is whether the applicant’s accident fell within the scope of the Act. This turned on the definition of “injury” in s 3 and, relevantly, whether the injury was “a result of and… caused during” a “collision”.

HELD

The definition of “injury”
Per Spigelman CJ, Allsop P and McColl JA agreeing

1 The Court must follow the dicta of the High Court in Allianz , that “the injury be sustained during… a collision”, and that the word “during” creates a temporal criterion for the definition of ‘injury’. That case cannot be confined to the terms of s 3 (iv) only. [12]-[13] [32] [38] [66]

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568, followed.
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89, applied.
2 The definition of “injury” in s 3 involves a composite phrase: “the injury is a result of and is caused during…”. These form ‘cumulative criteria’ or ‘conjunctive requirements’ in accordance with the presumption against surplusage. One of these, “caused during”, is a temporal criterion. [13] [19] [29] [38] [66]
Inasmuch Community Inc v Bright [2006] NSWCA 99; (2006) 45 MVR 234; Nominal Defendant vGLG AustraliaPty Ltd [2006] HCA 11; (2006) 228 CLR 529; referred to.
Dominello v Dominello [2009] NSWCA 95; (2009) 52 MVR 292, explained.

3 The purpose of the legislation is to narrow the concept of ‘injury’. The injury in this case was not “caused during” a collision, even if it were possible to describe the collision as a ‘proximate cause’ of the injury. [31] [33] [38] [66]

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568, followed.


Per Allsop P, McColl JA agreeing

4 The High Court decision in Allianz is binding as ‘seriously considered dicta’. It requires that the injury be sustained during the relevant event in s 3 (i)-(iv), which did not occur in this case. However, unconstrained by such authority, a preferable view would be that the cause of the injury must occur during the event or occurrence; but the injury need not necessarily be sustained during the relevant event or occurrence in (i)-(iv).

This interpretation would create purpose for both elements of the definition: the phrase “is a result of” would require a causal relationship between the injury and the event or occurrence in (i)-(iv) and the phrase “caused during” would require that the injury has a cause which occurred during the events or occurrences in (i)-(iv). [44]-[47] [66]
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89, followed.
Government Insurance Office (NSW) v R J Green & Lloyd Pty Ltd [1966] HCA 6; (1966) (114) CLR 437; State Government Insurance Commission v Stevens Brothers Pty Ltd [1984] HCA 32; (1984) 154 CLR 552; Dickinson v The Motor Vehicle Insurance Trust [1987] HCA 49; (1987) 163 CLR 500, considered.

5 A suggestion that insurance law only contemplates one cause is probably no longer accurate in Australia. [49]-[50] [66]

City Centre Cold Store Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 739; HIH Casualty & General Insurance Ltd v Waterwell Shipping Inc (1998) 43 NSWLR 601; McCarthy v St Paul International Insurance Co Ltd [2007] FCAFC 28; 157 FCR 402, referred to.


Per Hodgson JA

6 The injury must be sustained during the relevant event, it is not sufficient that the significant causal elements be established during the event if the actual injury only occurs some time later. [60]

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568, followed.


Per Campbell JA

7 The legislative scheme, particularly the 1995 amendment to the definition of ‘injury’, was instituted for the purpose of narrowing the scope of the Act. The legislature intended only to cover situations where there is really a relation of cause and effect between the type of event or circumstance and the injury, not just a situation where the motor vehicle provided an occasion or setting for the injury. [93] [104]

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568, considered.

8 Unconstrained by authority, a preferable construction of the phrase ‘is a result of and is caused during’ is as a hendiadys. It would serve to emphasise the need for a causal connection and avoid the consequence that the applicability of the Act also depended on the time of injury, as required by Allianz . [111]

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568, considered.

9 The High Court decision in Allianz remains binding and applicable, and in this circumstance the applicant did not sustain his injury “during the collision” for the purposes of the Act. [114]-[115]

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568, followed.


The meaning of “collision”
Per Spigelman CJ, Allsop P and McColl JA agreeing

10 ‘Collision’ does not refer only to the point of impact. Whilst the vehicles remain in their post-collision positions, the ‘collision’ is perhaps still in existence. However, the submission that a ‘collision’ continues until all the effects of the collision have been removed should be rejected. [22]-[24] [38] [66]

Per Hodgson JA

11 “During a collision” does not delimit a time that extends only to the period during which the colliding vehicles are actually in contact. However, it might not be possible to extend the time period so far as to encompass, for example, a time when the vehicles are removed from the road. [61]
Case of Dominello v Dominello [2009] NSWCA 95; (2009) 52 MVR 292
Per Spigelman CJ, Allsop P and McColl JA agreeing

12 Dominello did not suggest that the temporal criterion, as outlined by the joint judgment in Allianz at [94], was unnecessary. It should be understood as responsive only to the specific submission made in that case. [15]-[19] [21] [38] [66]

Dominello v Dominello [2009] NSWCA 95; (2009) 52 MVR 292, explained.


Per Hodgson JA; Campbell JA

13 Dominello cannot be reconciled with the dicta of the High Court in Allianz , because in Dominello the Court accepted that an ‘injury’ can be caused by a fault occurring during the activity, rather than the injury itself being sustained during the activity, as required by Allianz . [64] [116]

Dominello v Dominello [2009] NSWCA 95; (2009) 52 MVR 292; Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568, considered.

ORDERS

1 Order that Rafael Basa be joined as second respondent to these proceedings.
2 Grant leave to appeal.
3 Direct the applicant to file a Notice of Appeal within 14 days of the date hereof.
4 Appeal dismissed with costs.

CA 40076/09

SPIGELMAN CJ
ALLSOP P
HODGSON JA
McCOLL JA
CAMPBELL JA

Thursday 8 October 2009

Giovanni Zotti v Australian Associated Motor Insurers Limited

Judgment

: In circumstances to which I will presently refer the applicant was injured and, as a result, instituted proceedings in the District Court. By reason of his failure to commence those proceedings within the time specified, after receipt of a notice under s 110 of the Motor Accidents Compensation Act 1999 (“the Act”), the applicant was taken to have withdrawn the claim by s 110(3) of that Act. Accordingly, the applicant applied to the District Court to exercise the power in s 110(5) of the Act which states:

“110(5) The court may reinstate the claim if the court is satisfied that the claimant has a full and satisfactory explanation for the failure to comply with the notice.”

2 On 16 December 2008 Neilson DCJ upheld the applicant’s contention that he had made the requisite “full and satisfactory explanation” for his failure. However, his Honour refused to reinstate the claim on the basis that it would be futile to do so because the circumstances of the accident were such that there was no “injury” within the meaning of the Motor Accidents Compensation Act. No issue arises with respect to the existence of the discretion which his Honour exercised.

3 It is pertinent to set out two definitions in s 3 of the Act (as at 19 December 2005, the date of the applicant’s injury):

“ motor accident means an accident or incident caused by the fault of the owner or driver or a motor vehicle in the use or operation of the vehicle which causes the death of or injury to a person.”
“ injury:
(a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use of operation of the vehicle if, and only if, the injury is a result of and is caused during:
(i) the driving of the vehicle, or
(ii) a collision, or action taken to avoid a collision, with the vehicle, or
(iii) the vehicle’s running out of control, or
(iv) such use or operation by a defect in the vehicle …
(b) …”

4 The Act was in the same form as was considered by the High Court in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568. Neilson DCJ relied on certain parts of the reasoning in the judgment of McHugh J and in the joint judgment of Gummow, Hayne and Heydon JJ, to which I will further refer below.

5 His Honour expressed the following conclusions with respect to the definition of injury when he said:

“[31] …
One can see that firstly the injury must be caused by the fault of the owner or driver of the vehicle in its use or operation, but if and only if there is both a causal and a temporal relationship with the driving of the vehicle or its colliding or taking action to avoid a collision, or its running out of control, or the use and operation of the vehicle by a defect in the vehicle.
[32] That there is a causal and temporal relationship is clear from the verbiage of the legislation … Here, on the facts that I have outlined, the plaintiff’s injuries were not caused by and during the driving of the vehicle. They were not caused by or during a collision, or an action taken to avoid a collision. They were not caused by the vehicle’s running out of control and during its running out of control, and the injury was not caused by and was not the result of the use of operation of the vehicle, because it was sustained during that activity and it was not caused by a defect in the vehicle.
[33] Counsel of the plaintiff essentially ask me to read the provision, as if it meant nothing more that the injury was caused by the use or operation of the motor vehicle. …
[34] … the injury must be sustained temporally during the use or operation of the vehicle. It was not. The first defendant’s motor vehicle had been towed by a tow truck from the scene of the plaintiff’s accident at some unspecified time prior to it.”

6 I should note that insofar as his Honour concluded that there was no causal connection – in addition to the absence of the temporal connection – the respondent did not seek to uphold that reasoning. The focus of the respondent’s submissions was upon the temporal connection arising from the word “during” in the definition of injury.

7 Neilson DCJ set out the relevant facts. The accident had occurred when the applicant, who was riding a bicycle, fell off when he came to an oil patch on the roadway. That oil had been deposited in the course of a motor car collision that had occurred some two hours earlier. The cars involved in that collision had been towed away. Police and the fire brigade had attended the accident and cleaned up the scene. Nevertheless, some oil was left on the roadway. (I note that proceedings are still extant against the State of New South Wales with respect to alleged negligence on the part of the police and fire brigade.)

8 The respondent is the compulsory third party insurer of the driver of the vehicle who caused the original collision.

9 I have set out at par [3] above the definition of injury. The submissions in this case focused on whether or not the applicant’s injury can be said to have been “caused during a collision” within the meaning of par (a)(ii) of the definition. Submissions which made reference to “driving” were not materially different. Indeed, counsel for the applicant accepted that any “driving” had stopped.

10 Of particular significance for present purposes is the passage from the joint judgment in Allianz supra, quoted by Neilson DCJ, where Gummow, Hayne and Heydon JJ said:

“[93] In argument, some suggestion was conveyed that the terms ‘result’ and ‘cause’ have different meanings and, in particular, that ‘cause’ narrows ‘result’. That is not so. The drafting in this second part of para (a) of the definition seeks to accommodate two cumulative criteria and does so by telescoping them into a grammatical contortion.
[94] 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. 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.”

11 The reasoning of McHugh J in Allianz supra, was, for present purposes, to broadly similar effect as the joint judgment. His Honour said:

“[18] … The … conditions in sub-pars (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).
…
[23] The second aspect of causation relates to the four conditions that limit the general class of injuries to which the Act applies. Where there is a defect in the vehicle, the injury must be ‘a result of and is caused during ... such use or operation by a defect in the vehicle’.

[24] The expression ‘caused during such use or operation’ imposes a temporal causal requirement. Where there is a defect in the vehicle, the defect must be operative when the injury is sustained and the vehicle must be in ‘such use or operation’ to which the fault of the owner attaches when the injury is sustained. Allianz conceded that Mr Oliver's injury occurred during the use or operation of the vehicle [ Allianz (2003) 57 NSWLR 321 at 336 [64] per Davies AJA].” [Emphasis added]

12 The applicant submitted that Allianz should be understood as a case concerned only with sub-par (iv) of the definition of “injury”, being the sub-paragraph which the injury there under consideration was said to fall. However, the judgment of the High Court cannot be so confined.

13 Nevertheless, the reasoning in Allianz does need to be adapted to, relevantly, sub-par (ii). As the first sentence of [94] in the judgment makes clear the relevant first criterion is: “that the injury be sustained during … a collision with the vehicle … .” In the second last sentence of [94] this is referred to by their Honours as “the temporal criterion”. The second criterion to which their Honours refer turns on the phrase “as result of” which their Honours treat as equivalent to “is caused” by, relevantly, “a collision”.

14 As I have indicated, in this Court the respondent focused primarily on the first criterion, rather than the second. As the submissions proceeded, it became apparent that the issue before the Court did not turn on the meaning of the word “during”. Rather the issue turned on the interpretation of the word “collision”. The critical issue is to determine when, in the context of this legislative scheme, it can be said that a “collision” has ended.

15 The only case which has considered the temporal criterion is Dominello v Dominello [2009] NSWCA 95; (2009) 52 MVR 292. The relevant judgment was that of Handley AJA, with whom Beazley and Macfarlan JJA agreed.

16 His Honour was dealing with the liability of the nominal defendant with respect to oil that had been left on the road by an unidentified vehicle which, on the hypothesis under consideration, had an uncapped or poorly capped fuel tank leading to the spillage. Other factual scenarios were rejected.

17 Handley AJA said:

“[99] The first causal requirement is that the injury must be caused by fault ‘in the use or operation of the vehicle’. The second, which includes a temporal element, is that it must be ‘the result of and … caused during’ one of the activities, events, or situations referred to in the subparagraphs.
[100] Mr Gross QC, for the Nominal Defendant, submitted that the definition required the injury and the fault to both occur during one of those activities, events, or situations, and this had not happened.
[101] In my judgment there is no such temporal requirement. The relevant requirements are for the injury to be caused by the fault of a relevant person (owner or driver), in a relevant activity (use or operation) but only if that injury was caused during another relevant activity, event, or situation (the subparagraphs).
[102] On the findings proposed these requirements are satisfied. The inferred fault is that of the driver of the unidentified vehicle and it occurred in the use of the vehicle. Refuelling a vehicle, which enables it to be driven, is part of its maintenance, and part of its use. Although the vehicle is not being driven while it is being refuelled, it is being used to receive and hold the fuel just as it may be used to receive and hold chattels or passengers. The plaintiff's injury was the result of the driving of the unidentified vehicle, and caused when the driving caused the spill. The injury was also caused by the driver's fault during the driving when he failed to remember that he had not replaced the fuel cap and stop his vehicle to do this.
[103] The injury was also caused by the driver's fault during the driving of the vehicle by a defect in the vehicle, its open fuel tank. The fuel cap is an important part of the vehicle because it can prevent loss of fuel by spillage and its contamination by airborne material. A vehicle without a fuel cap has a defect and it has another if an available fuel cap is not fitted, or not properly fitted.”

18 After referring to the two judgments in Allianz supra including par [102], to which I refer at [26], Handley AJA concluded:

“[109] The decisive causative element in the present case was ‘the passive condition’ of the fuel tank without its fuel cap which permitted the spillage to occur. The fuel level in the tank, the driving of the vehicle, the configuration of the reverse bend, and the arrival of the van travelling at 100 kph, in the language of McHugh J, were ‘merely … background facts which had to exist for the injury to occur’, and it was the defect in the vehicle ‘that caused the injury’.
[110] In the language of the plurality the open fuel tank was the predominant and immediate cause of the spillage and this was the immediate cause of the injury.”

19 As par [99] of Handley AJA’s judgment makes clear his Honour identified a requisite “temporal element”. The first sentence of par [101] in which his Honour states that “there is no such temporal requirement” turns on the word “such”. This is a reference to the particular kind of temporal requirement for which counsel for the nominal defendant contended at [100]. That is not the contention in the present case.

20 The respondent seeks leave to argue that Dominello is wrong with respect to the reasoning on the temporal element. That is why the Court sat a bench of five.

21 I would not grant leave on the basis that the reasoning should be understood as responsive only to the specific submission made in that case. In Dominello it does not appear to have been contended that the temporal element, considered as a separate “criterion” (to use the language of the joint judgment in Allianz supra at [94] set out at [10] above) was not satisfied on the facts. It is difficult to see how it could be said that the injury was “sustained” (to use the language of the joint judgment in Allianz supra at [94] and of McHugh J at [24]) within a time period in which “driving” was occurring or during which a vehicle with a defect was in “use or operation”. I do not understand Handley AJA to doubt the significance of the temporal element identified in Allianz. (See also Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 at [95].)

22 The present case turns on when a “collision” ends. It can be accepted that the word “collision” does not refer only to the point of impact. It may well be the case that, for as long as the vehicles which had collided remained in their post-collision positions, the “collision” would still be in existence. Accordingly, any further incident that occurred by another vehicle running in to either car would fall within the meaning of “injury” and “motor accident”.

23 The position with a remnant of oil slick is, however, further removed. Ms S Norton SC, who appeared for the applicant submitted that the “collision” continues until the effects of the collision have been removed.

24 In my opinion, that submission should be rejected. After the cars have been removed it cannot be said that the “collision” was still extant. Detritus such as oil is simply aftermath, not a continuation of the original event.

25 Ms Norton submitted in the alternative that the Court should read the word “caused” broadly when appearing in the chapeau (a) to the definition of injury in s 3.

26 Ms Norton relied on a passage from the joint judgment in Allianz supra where their Honours said:

“[102] The use in the definition of the emphatic and intensive phrase ‘if, and only if’ directs attention to notions of predominance and immediacy rather than to more removed circumstances. The definition of ‘injury’ looks for the CTP insurance system, to notions of proximate cause found in insurance law …”

27 Ms Norton submitted that the direct, effective or proximate cause of the applicant’s injury was the oil on the road, which was caused during the driving of the vehicle and/or during a collision involving the vehicle. It may well be an appropriate characterisation to identify the oil as the proximate cause. However, the next step – required by the statute – towards the collision and/or the driving is further removed from the cause that is direct, effective or proximate.

28 Ms Norton submitted that the words “caused during” do not require the simultaneous occurrence of the events – whether the “driving” or the “collision” – and the injury. The words “caused during” should not be read as if they were the same as “occurs during”. She submitted that a “proximate cause” – namely the collision – can be a causal agent which subsequently leads to an injury.

29 In this respect it is pertinent to note the composite phrase in the definition: “the injury is a result of and is caused during …” the event. Ms Norton’s submission would, in my opinion, have the effect that the words “caused during” would add nothing to the words “as a result of”. These were “cumulative criteria” (Inasmuch Community Inc v Bright [2006] NSWCA 99; (2006) 45 MVR 234 at [24]) or a “conjunctive requirement” (GLG Australia supra at [96]). The law of statutory interpretation creates a presumption – albeit not always a strong presumption – against surplusage. (See cases referred to in Solution 6 Holdings Ltd v Industrial Relations Commission (NSW) [2004] NSWCA 200; (2004) 60 NSWLR 558 at [74]-[75].)

30 In any event, it is not, in my opinion, open to this Court to adopt the applicant’s submission.

31 First, the submission is not consistent with the High Court’s identification of the purpose of the legislation to narrow the concept of the “injury”. (See Allianz supra at [101]-[102] and GLG Australia supra at [25], [95].)

32 Furthermore, more specifically, at [94] of the joint judgment in Allianz, set out at [10] above, the joint judgment expressed the “temporal criterion” in the following way: “the injury be sustained during certain events including … a collision” (emphasis added). Although Allianz was concerned with sub-par (iv) of the definition of injury, this Court is obliged to follow, it has been determined, the clearly expressed dicta of the High Court even if not part of the ratio decidendi. (See Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [134] and [158].)

33 The injury in this case was not “sustained during” a collision. It is not open to this Court to hold that, even if the collision could, for some purposes, be the “proximate cause” of the injury, that the injury was “caused during” the collision, within the meaning of the Act.

34 During the course of the hearing the Court was informed that the driver of the vehicle insured by the respondent, Mr Basa, who was a party in the District Court, had been informed of the appeal but had not been joined. Directions were made by the Court requiring the applicant to file and serve a Notice of Motion to join Mr Basa to the appeal, to inform him of the proceedings and to give him an opportunity to make submissions to the Court.

35 In compliance with the directions, the applicant has, by Notice of Motion, sought an order pursuant to Pt 51.4(3) of the Uniform Civil Procedure Rules 2005 that Rafael Basa be joined as a second respondent. This was supported by an affidavit indicating compliance with the Court’s directions and an affidavit of service. These affidavits are taken as read in proceedings.

36 Mr Basa has not sought to make any submissions to the Court within the time specified in the directions, of which he has been notified.

37 The orders I propose are:

1 Order that Rafael Basa be joined as second respondent to these proceedings.
2 Grant leave to appeal.
3 Direct the applicant to file a Notice of Appeal within 14 days of the date hereof.
4 Appeal dismissed with costs.

38 ALLSOP P: I have read the reasons of the Chief Justice. I agree with the orders proposed by him and, subject to what follows (being largely matters of emphasis and comment) with his reasons.

39 There is much to be said for the argument put clearly and helpfully by Ms Norton SC that the definition of injury in the Motor Accidents Compensation Act 1999 (NSW) (the “Act”), s 3 before its amendment in 2006 had a coherent meaning that conformed with and fulfilled the policy reflected in the secondary material, of removing from the intended insurance cover provided by the Act injuries peripherally connected with a sensible conception of a motor vehicle accident, but under which Mr Zotti’s accident can be seen to fall.

40 In Ms Norton’s submission, the “injury” (being the personal or bodily injury caused by the fault of the owner or driver etc) is an injury if, but only if, the injury is a result of the events or activities in s 3 (i)-(iv) and is caused during such events or activities.

41 By this construction, a dual restriction is imposed on the injury intended to be covered by the definition which can be seen to be the fulcrum of an insuring clause of a statutory insurance.

42 The words “resulting from” have in some cases been said to impose a requirement of proximate cause: see Commonwealth v Butler [1958] HCA 56; 102 CLR 465 at 476 (per Taylor J) and Pickersgill v Freightbases Pty Ltd [1983] 3 NSWLR 117. The High Court, however, in Conkey & Sons Ltd v Miller (1977) 51 ALJR 583 decided unanimously that Butler did not decide any principle of law. Further, this Court in Kooragang Cement Pty Ltd v Bates (1994) 10 NSWCCR 796 at 809-810 (Kirby P, Sheller JA and Powell JA agreeing) declined to follow Pickersgill to the extent that it was authority for the proposition that the phrase “resulting from” embodied a notion of proximate cause. In his reasons in that case, Kirby P referred to similar views expressed by him and McHugh JA in a number of previous cases. Kirby P said the following at 810:

“ …Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death "results from" a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death "results from" the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus . Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”

43 Views, however, have not been unanimous. For example, in S and Y Investments (No 2) Pty Ltd (in liq) v Commercial Union Assurance of Australia Ltd (1986) 44 NTR 14, the Supreme Court of the Northern Territory held that words “occurring as a result of” were equivalent to “is caused by” and thereby imposed a requirement of proximate causal connection.

44 Whatever the reason for the terminology in s 3, the phrase “is a result of” can be seen to require some kind of causal relationship between the injury and the event or occurrence. The second of the cumulative requirements: “the injury is caused during” the relevant events or occurrences can be seen to limit further the operation of the definition, by restricting the response of the statutory insurance to injuries which can be seen to have a cause occurring during the events or occurrences in (i)-(iv). This would not be surplusage being added. The phrase “a result of” may be seen to have a broader content than “caused”; but, more specifically, the cause must occur during the relevant event or occurrence in (i)-(iv). Looking at the matter thus, it would not be a requisite that the injury be sustained or be suffered or occurred during the relevant event or occurrence in (i)-(iv); rather, the necessary constriction is that the cause of the injury occur during the event or occurrence. This approach, it might be thought, would more happily sit with the words “the injury is caused during” the event or occurrence. If a notion of “sustaining” or “suffering” the injury during the event or occurrence were intended it might be thought that such phrases would have been used rather than the words in fact employed: that “the injury is caused during”.

45 Such a construction would limit the response of the statutory insurance to circumstances more narrow than the kinds of peripheral connection with a motor vehicle and its use that arose in the jurisprudence dealing with “arising out of” the use of motor vehicle: see for example Government Insurance Office (NSW) v R J Green & Lloyd Pty Ltd [1966] HCA 6; 114 CLR 437; State Government Insurance Commission v Stevens Brothers Pty Ltd [1984] HCA 32; 154 CLR 552; Dickinson v The Motor Vehicle Insurance Trust [1987] HCA 49; 163 CLR 500 and many other cases. In this jurisprudence, the phrase “arising out of” the insured peril imposed no requirement that the loss be proximately caused by that peril; see the above cases and also Clover, Clayton & Co Limited v Hughes [1910] AC 242 at 245.

46 As well as fulfilling the evident policy of reducing the scope of the insurance cover under the Act, the above construction would ensure that the operation of the Act and the insurance provided under it were not limited in circumstances that might be capricious or arbitrary. As this very case shows, if the actual injury must be sustained or suffered during the events or occurrences set out in (i)-(iv) persons can be left without effective insurance cover in circumstances where the injury constitutes the direct sequelae of the accident and the cause of the injury occurred during, and was intimately bound up with, the motor vehicle accident. On an ordinary appreciation of events, an injury can be seen to be caused by a motor vehicle accident if the relevant causal link occurred during the collision (or other event or occurrence in (i)-(iv)).

47 Unconstrained by authority I would be minded to agree with these arguments, which were, in substance, put by Ms Norton. However, as I read [93] and [94] of the reasons of Gummow, Hayne and Heydon JJ in Allianz Australia Insurance Limited v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568 at 596 these arguments are precluded. This is also the view of the Chief Justice with which I agree. I note, however, that [101] of their Honours’ reasons in Allianz may conceivably affect [93] and [94]. Nevertheless, though [93] and [94] do not, on my reading, form part of the ratio of the judgment of their Honours, I would take them to fall within the category of “seriously considered dicta”: Farah Constructions Pty Limited v Say-Dee Pty Limited [2007] HCA 22; 230 CLR 89 at 150-151 [134] and 159 [158]. In the light of these paragraphs of the judgment of Gummow, Hayne and Heydon JJ in Allianz the definition of “injury” is to be construed as requiring the injury to be sustained during the relevant event in (i)-(iv). That did not happen here.

48 Though the definition of “injury” in s 3 of the Act has been amended to remove these particular provisions, they have been moved, in substance, into the definition of “motor accident”. A not dissimilar construction will arise under that provision.

49 During the argument on the appeal there was reference to a notion of causation in insurance being of a different character to ordinary notions of causation. The High Court in Allianz at [101] also referred to questions of causation in insurance law. Insurance is, of course, an area of discourse in which questions of causation constantly arise. Phrases such as “proximate cause” and “dominant cause” have had a particular place in the law of insurance. The view prevailed for many years that for the purpose of answering a question about the response of an insurance policy there could be only one cause: National & General Insurance Co Ltd v Chick [1984] 2 NSWLR 86 at 97-98 where Samuels JA quoted Colinvaux R, The Law of Insurance (4^th Edition) (Sweet & Maxwell 1979) at [4.32] as follows:

“A loss may be the combined effect of a whole number of causes, but, for the purposes of insurance, one direct or dominant cause must in each case be singled out.”

Support for this proposition can also be seen in Smith, Hogg & Co Ltd v Black Sea & Baltic General Insurance Co Ltd [1940] AC 997 at 1006 and in Howard Fire Insurance Company v Norwich & New York Transportation Company 79 US 194 (1870).

50 This approach, however, does not appear now to be the law in Australia or England: City Centre Cold Store Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 739 approved in this Court in HIH Casualty & General Insurance Ltd v Waterwell Shipping Inc (1998) 43 NSWLR 601; and by the Full Court of the Federal Court in McCarthy v St Paul International Insurance Co Ltd [2007] FCAFC 28; 157 FCR 402 at 429-431 [88]-[91] and 421 [56] and 422 [58] and see also J J Lloyd Instruments Ltd v Northern Star Insurance Co Ltd (The ‘Miss Jay Jay’) [1987] 1 Lloyd’s Rep 32; though, cf Allianz at [101]; Australian Casualty Co Limited v Federico [1986] HCA 32; 160 CLR 513 at 534-535; and March v Stramare (E & MH) Pty Ltd [1991] HCA 12; 171 CLR 506 at 511. See generally M Davies “Proximate Cause in Insurance Law” (1996) 7 Insurance Law Journal 135; M Clarke “Insurance: The Proximate Cause in English law” (1981) 40 Cambridge Law Journal 284 and the discussion of causation and insurance by McColl JA in Lasermax Engineering Pty Limited v QBE Insurance (Australia) Limited [2005] NSWCA 66; 13 ANZ Insurance Cases 61-643 at 77,858-60 and by me in McCarthy at 429-438 [88]-[115].

51 Whether or not the subject matter of the Act, concerned as it is with insurance, would require any particular approach to be taken to the notion of causation and the effect of such on s 3 was not debated before us.

52 HODGSON JA: One of the objects of the Motor Accidents Compensation Act 1999 (the Act) set out in s 5(1)(b) of the Act has always been “to provide compensation for compensable injuries sustained in motor accidents”: and the Act provides a scheme to ensure that there will be insurance cover for such injuries. The Act would appear to reflect a perception that, because the risks of injury from motor accidents are so great, there should be particular regulation of claims arising from negligently-caused motor accident injuries that both ensures the availability of insurance cover and regulates the way such claims are dealt with.

53 However, until amendments in 2006, the Act in s 3 contained the following definitions of “injury” and “motor accident”:

injury :

(a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during:


(i) the driving of the vehicle, or

(ii) a collision, or action taken to avoid a collision, with the vehicle, or

(iii) the vehicle’s running out of control, or

(iv) such use or operation by a defect in the vehicle, and


(b) includes:

(i) pre-natal injury, and

(ii) psychological or psychiatric injury, and

(iii) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses,


and injured person means a person who suffers such an injury.

……

motor accident means an accident or incident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which causes the death of or injury to a person.

54 Consider the following scenario. A collision occurs between two motor vehicles, as a result of the fault of the driver of one only of those vehicles. The “innocent” vehicle comes to rest in a position on the road that is hazardous to other road users. Shortly after the accident, a third vehicle arrives and, without negligence of its driver, collides with the “innocent” vehicle, injuring persons in the third vehicle.

55 Injuries caused to the persons in the third vehicle would undoubtedly be injuries sustained in a motor accident, as those words are generally understood; and all the policy reasons for ensuring the availability of insurance and for regulating claims would apply with full force. It would be alarming to think that one’s compulsory motor vehicle insurance did not cover such a situation; and also alarming to think that the injured persons would not have access to compulsory motor vehicle insurance.

56 However, on one view, these injuries would not be within the Act as originally enacted (or indeed, within the Act as amended in 2006: see s3A(1)). This is because, while these injuries were undoubtedly “caused by the fault of the … driver of a motor vehicle in the use or operation of the vehicle”, and were “a result of” “the driving of the vehicle” and of “a collision … with the vehicle” (that is, the original collision), there is a real question whether they were “caused during” either “the driving of the vehicle” or “a collision … with the vehicle”. No injury occurred until the third vehicle collided with the “innocent” vehicle, which is not “the vehicle” referred to in sub-pars (i) and (ii) of par (a) of the definition: by the time this second collision occurred, “the driving of the vehicle” (that is, the vehicle in respect of which there was fault) had ceased, and seemingly the collision with that vehicle had also come to an end.

57 It is unlikely that the legislature intended that injuries sustained in the way I have outlined would not be covered by the Act. However, there appear to be only two possible ways of avoiding that result:

(1) by giving a wide meaning to “caused during”; or

(2) by giving a wide meaning to “during a collision”.

58 As regards (1), it could be argued that the requirement that an injury be caused during the driving of the vehicle or during a collision with the vehicle is satisfied if the significant causative factors that in due course bring about the injury are established during the event in question, even though the actual sustaining of the injury is delayed beyond that event; and indeed, but for the authority referred to later, I would be inclined to accede to that argument.

59 As regards (2), it could be argued that “during a collision” is not limited to the time when vehicles are actually in contact, but extends to some time thereafter, such as the time when vehicles involved in the collision come to a stop.

60 Dicta of the High Court of Australia in Allianz Australia Insurance Limited v GSF Australia Pty Limited [2005] HCA 26; (2005) 221 CLR 568 appear to be against the first of those possibilities, in particular pars [93] and [94] of the judgment in that case, quoted by Spigelman CJ at [10] above. (I note incidentally that in the first sentence of par [94], the phrases “a result of” and “is caused” appear to have been transposed; but this does not affect the thrust of what is said.) According to those dicta, the injury must be sustained during the relevant event; so in my opinion this Court should accept that it is not sufficient that the significant causal elements be established during the event, if the actual injury occurs some time later.

61 As regards the second possibility, I am inclined to accept that the phrase “during a collision” does not delimit a time that extends only to the period during which the colliding vehicles are actually in contact. In my opinion, in those cases where two vehicles come to a stop shortly after the impact, the phrase would extend as far as the time when they come to a stop. However, to extend the period covered by “during a collision” further, for example to the time when the vehicles (or perhaps debris) are removed from the road, is less easy to justify: it would require the word “collision” to be read as meaning something like “collision incident”, and in my opinion this is not justified by the language.

62 I would add, that if “collision” could be read as “collision incident”, then the phrase “during a collision” could extend not merely to the time when vehicles are removed, but also to the time when debris and oil spills from the collision are removed, thus covering the present case.

63 Accordingly, having regard to the dicta in Allianz and to my understanding of the phrase “during a collision”, I am driven to the conclusion that neither my hypothetical scenario nor the present case falls within the Act, either as originally enacted or (having regard to s 3A) as presently in force. This seems to be unsatisfactory and deserving of consideration by the legislature, unless the High Court were to take a different view.

64 I would add that in my opinion, the previous decision of this Court in Dominello v Dominello [2009] NSWCA 95 cannot be reconciled with the dicta of the High Court in Allianz. In Dominello, the Court appears to have regarded it as a sufficient compliance with the temporal requirements in the definition of “injury” that the injury be caused by the fault of the driver occurring during the driving of the vehicle; whereas the High Court has said that the injury itself must be sustained during the driving of the vehicle, or during some other event or period identified in sub-pars (ii) to (iv) of par (a) of the definition.

65 For those reasons, I agree with the order proposed by Spigelman CJ.

66 McCOLL JA: I have read the reasons of the Chief Justice. I agree with his reasons and with the orders his Honour proposes. I also agree with Allsop P’s additional reasons.

67 CAMPBELL JA: I have had the advantage of reading the reasons of all other members of the Bench, and agree with the orders proposed by the Chief Justice. However my reasons differ in some respects from those of other members of the Bench. As the issue involved in this case is quite important, I should state those reasons fairly fully.

68 On 19 December 2005, there was a collision at an intersection between two motorcars, one of which was driven by Mr Basa. A couple of hours after that collision had occurred, and after the vehicles involved in it had been removed from the scene, the Applicant rode his bicycle through the intersection, slipped on some oil on the roadway, lost control of the bicycle, and was seriously injured. The Applicant contends that the collision was caused by the negligent driving of Mr Basa, and that the oil on the roadway on which the Applicant slipped was released during that collision.

69 A Statement of Claim was filed in the District Court on the Applicant’s behalf on 12 August 2008, naming Mr Basa as a defendant and alleging negligence against him. (It also named another defendant, but that does not matter for present purposes.)

70 If the Applicant’s rights concerning his injury had been governed by the ordinary law of torts, a three year limitation period would have applied to the litigation under section 50C Limitation Act 1969, running from the date on which the cause of action was discoverable. In this case, that date would be the date on which the accident occurred and the damage was suffered. The consequence would be that the action had been brought within time. However, section 50A(3) Limitation Act provides that the Division within which section 50C occurs “does not apply to a cause of action on a claim arising under the Motor Accidents Compensation Act 1999.” The important issue in the present case concerns whether the cause of action on which the Applicant sues Mr Basa is a cause of action on a claim under the Motor Accidents Compensation Act 1999 (the MAC Act).

71 Relevant definitions in section 3 MAC Act as they existed at the date of the accident are (so far as relevant):

“ claim means a claim for damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle.
claimant means a person who makes or is entitled to make a claim.
…
fault means negligence or any other tort.
…
injury:
(a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during:
(i) the driving of the vehicle, or
(ii) a collision, or action taken to avoid a collision, with the vehicle, or
(iii) the vehicle’s running out of control, or
(iv) such use or operation by a defect in the vehicle, and
(b) includes:
(i) pre-natal injury, and
(ii) psychological or psychiatric injury, and
(iii) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses,
and injured person means a person who suffers such an injury.
…
motor accident means an accident or incident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which causes the death of or injury to a person.”

There is a definition of “use or operation of a motor vehicle” , but it is an inclusive definition, and so does not restrict the ordinary meaning of that expression.

72 The MAC Act requires every motor vehicle that is used on a road (subject to some presently irrelevant exceptions) to be insured under a third party policy. The terms of such a policy are prescribed by section 10:

“ Third-party policies
A third-party policy under this Act is a policy that is in the following terms:
Third-party Policy
The insurer insures the owner of the motor vehicle and any other person who at any time drives the vehicle (whether or not with the consent of the owner) against liability in respect of the death of or injury to a person caused by the fault of the owner or driver of the vehicle:
(a) if the motor vehicle is not one to which paragraph (b) applies—in the use or operation of the vehicle in any part of the Commonwealth (whether or not on a road), or
(b) if the motor vehicle is subject to an unregistered vehicle permit under the Road Transport (Vehicle Registration) Act 1997 —in the use or operation of the vehicle on any road in any part of the Commonwealth.
In this policy, words and expressions have the same meanings as in the Motor Accidents Compensation Act 1999 .”

73 Chapter 4 MAC Act, running from sections 66 to 121 inclusive, establishes procedures for the making and determination of claims. In the broadest terms, there are three levels at which a claim might come to be determined. A claim must always be made in the first instance to the insurer. If it is not resolved by agreement with the insurer, there is provision for the claim, or those aspects of the claim which remain unresolved, to be submitted for a process of administrative assessment. In certain limited circumstances, if administrative assessment does not satisfactorily resolve the claim it might then be determined by a court.

74 Section 72 MAC Act, as applied to the circumstances of the present case, required a claim to be made by the Applicant to Mr Basa’s insurer within six months from the date of the accident unless, pursuant to section 73, “the claimant provides a full and satisfactory explanation for the delay in making the claim.” The Applicant’s solicitor made a claim on Mr Basa’s insurer, AAMI, more than six months after the date of the accident. It is not a matter of current contention whether a full and satisfactory explanation was provided for that delay.

75 An insurer has an obligation under section 81 MAC Act to give written notice whether it admits or denies liability for the claim, no later than three months after the claimant gave notice of the claim. In the present case, AAMI gave notice on 16 October 2006 denying liability, on the ground that the Applicant’s injury was not caused during any of the four limbs of para (a) of the definition of “injury” contained in section 3 MAC Act.

76 Section 91(2) MAC Act enables a claim to be referred for administrative assessment if it is a claim in respect of which the insurer wholly denies liability. There is provision in section 92 for claims to be exempt from assessment in certain circumstances, and for the Principal Claims Assessor to issue the insurer and the claimant with a certificate confirming that the claim is exempt from assessment. Application was made for the issue of such a certificate, and it was issued on 18 January 2007.

77 Section 108 MAC Act prevents a claimant from commencing court proceedings in respect of a claim unless either a certificate under section 92, or a certificate under section 94 has been issued. Thus, the Applicant became entitled to commence court proceedings when the section 92 certificate was issued on 18 January 2007.

78 Section 109 MAC Act provides time limitations on the commencement of court proceedings. Pursuant to section 109(1) those limitations apply to “a claimant”, and “in respect of a claim”. Section 109(5) provides:

“The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim.”

79 One of the circumstances in which section 109 permits a claimant to commence proceedings in respect of a claim is if the claim is not brought more than three years after the date of the motor accident to which the claim relates. If the action in tort that the claimant wished to bring against Mr Basa was one concerning which the Applicant was “a claimant” within the meaning of the MAC Act, and that action in tort was “proceedings in respect of a claim” the effect of section 109(5) would be that the limitation periods provided under the Limitation Act did not apply to it, but the claim was within time pursuant to section 109(1).

80 Section 110 provides a different time limitation on a claimant commencing court proceedings in respect of a claim. It operates as an additional limitation to that arising under section 109. It provides:

“(1) The insurer of a person against whom a claim is made may give the claimant notice requiring the claimant to commence court proceedings in respect of the claim if:
(a) the claimant has been entitled to commence the proceedings for a period of at least 6 months, and
(b) at least 18 months have elapsed since the date of the motor accident to which the claim relates.
(2) The claimant must comply with the notice within 3 months after its receipt.
(3) If the claimant does not comply with the notice as required by this section, the claimant is taken to have withdrawn the claim.
(4) A claimant whose claim is taken to have been withdrawn by the operation of this section may apply to a court of competent jurisdiction for reinstatement of the claim.
(5) The court may reinstate the claim if the court is satisfied that the claimant has a full and satisfactory explanation for the failure to comply with the notice.”

81 After the Applicant had been entitled to commence court proceedings for at least six months, AAMI served a notice under section 110(1) requiring the claimant to commence the proceedings. AAMI granted some extensions of time, but those were not complied with either. On 23 October 2007, AAMI sent a letter to the Applicant’s solicitors requiring court proceedings be commenced immediately. Proceedings were not commenced until more than a year after that date.

82 Section 79 MAC Act provides:

“ Power of insurer to intervene in legal proceedings
An insurer may apply to the court to be joined as a party to legal proceedings brought against a defendant who is insured under a third-party policy with the insurer in order to argue that in the circumstances of the case it has no obligation under the policy to indemnify the defendant.”

83 AAMI made application under that section to intervene in the proceedings commenced by the Applicant, and an order permitting AAMI to intervene had been made before the matter came before Judge Neilson on 5 December 2008.

84 On that date the Notice of Motion of present relevance that his Honour dealt with was one by the Applicant, seeking an order pursuant to section 110(4) MAC Act “reinstating the plaintiff’s claim pursuant to that Act as of the date of filing of the Statement of Claim herein”. By that time, AAMI had given Mr Basa notification that it would not indemnify him in relation to the Applicant’s claim, and notification of the terms and hearing date of the Notice of Motion. Mr Basa did not appear at that hearing, and it was counsel for AAMI, exercising its rights as intervenor, that opposed the granting of the order reinstating the plaintiff’s claim.

85 The judge held that the plaintiff had provided a full and satisfactory explanation for his delay within the meaning of section 110(5). Even so, the judge declined to make an order to reinstate the claim, on the ground that it would be futile, because the Applicant’s injury was not an “injury” within the meaning of the MAC Act. His reasons are set out in Spigelman CJ’s judgment at [5].

86 If the judge were right in holding that the plaintiff had not sustained an “injury” within the meaning of the MAC Act, it seems to me that his dismissal of the Notice of Motion would more correctly have been put on the basis that the power to make an order under section 110(4) did not apply to the litigation before him, because there was no “claim” within the meaning of the MAC Act. Even so, his Honour has decided that the Applicant has not sustained an “injury” within the meaning of the MAC Act and the parties will remain bound by that determination unless this Court, or the High Court, reverses it.

87 When terms defined in the MAC Act have the same meaning in Mr Basa’s third party policy, and the indemnity provided by the third party policy concerns “liability in respect of … injury” the practical effect of the judge’s decision is that the Applicant is suing an uninsured defendant concerning the serious injuries he has sustained.

88 Whether the collision was caused by the negligence of Mr Basa has not been decided. But the effect of the decision below is that, if the Applicant persists with the litigation against Mr Basa at all, it will be at the risk of Mr Basa having insufficient assets to meet a judgment.

89 It is the insurance consequences of the decision below that give this case its importance. Compulsory third party insurance concerning bodily injury has existed in this State since 1930, and the manner of operation of that system of insurance has the potential to affect nearly everyone in the State.

Construction of the Definition of “Injury”

90 Immediately before the amendments made by the Motor Accidents Amendment Act 1995, the Motor Accidents Act 1988 contained the following definitions:

“‘ injury’ means personal or bodily injury, and includes:
(a) pre-natal injury; and
(b) * * * * *
(c) psychological or psychiatric injury; and
(d) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.
…
‘motor accident’ means an accident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which causes the death of or injury to a person.”

91 The form of third party policy required by section 9 and schedule 1 of that Act included, relevantly:

“The insurer insures the owner of the motor vehicle and any other person who at any time drives the vehicle (whether or not with the consent of the owner) against liability in respect of the death of or injury to a person caused by the fault of the owner or driver of the vehicle in the use or operation of the vehicle in any part of the Commonwealth (whether or not on a public street).”

92 The Motor Accidents Amendment Act 1995 replaced the definition of “injury” with a definition identical to that now found in the Motor Accidents Compensation Act 1999.

93 The Explanatory Memorandum for the Motor Accidents Amendment Bill 1995 said that the new definition of “injury” was inserted

“… in order to remove an overlap that exists between motor accident claims and workers compensation claims.”

94 That was its only explanation for the amendment. It is an available aid to construction of the legislation (section 34 Interpretation Act 1987). There was already provision in section 16 Motor Accidents Act (now mirrored in section 15 MAC Act) that a third party policy did not provide indemnity against a liability to pay compensation under any Workers Compensation Act. The mischief identified by the Explanatory Memorandum was that a common law claim brought by a worker concerning an injury sustained in the course of employment and that also involved use or operation of a motor vehicle could fall under both the common law extension of the standard workers compensation policy (required by section 155(1) Workers Compensation Act 1987) and also be a motor accident claim.

95 The 1995 amending Bill was first introduced in the Parliament in the Legislative Council on 16 November 1995. The relevant Minister was the Attorney-General, the Honourable J W Shaw. He explained the change to the definition of “injury” at page 3322 of Hansard:

“Common sense and community expectations generally demand that the CTP policy provide coverage in respect of injuries which arise from crashes and collisions on the roads or from vehicles running out of control. Over the years the courts have interpreted the CTP policy as providing for a wide range of injuries often unrelated to motor accidents. For example, the CTP policy has been held to cover injuries sustained during the loading and unloading of vehicles, and injuries sustained while standing on the back of a stationary trailer, and injuries involved in the use of a firearm in a vehicle.
It is therefore proposed to amend the definition of ‘injury’ to adopt an approach similar to that taken in Queensland, South Australia and Western Australia, where ‘injury’ is qualified in terms of its cause.”

96 When the Bill was introduced to the Legislative Assembly on 5 December 1995 the relevant minister, Mr Whelan, did so in three short sentences, referring members to the Second Reading Speech that had been made in the Legislative Council.

97 The remarks of the Attorney General about the new definition of “injury” being intended to be “similar to” those in Queensland, South Australia and Western Australia are also an available aid to construction of the legislation.

98 The relevant Queensland legislation was the Motor Accident Insurance Act 1994 (Qld). The relevant restriction in it arises under section 5(1):

“This Act applies to personal injury caused by, through or in connection with a motor vehicle if, and only if, the injury—
(a) is a result of—
(i) the driving of a motor vehicle; or
(ii) a collision, or action taken to avoid a collision, with the motor vehicle; or
(iii) the motor vehicle running out of control; or
(iv) a defect in the motor vehicle causing loss of control of the vehicle while it is being driven; and
(b) is caused, wholly or partly, by the wrongful act or omission of a person other than the injured person.”

99 The relevant South Australian Act at the time was Motor Vehicles Act 1959 (SA), as contained in reprint No. 11 of 22 June 1995. It included, in section 99, a provision:

“(3) For the purpose of this Part and the fourth schedule, death or bodily injury will not be regarded as being caused by or as arising out of the use of a motor vehicle if it is not a consequence of—
(a) the driving of the vehicle;
(b) a collision, or action taken to avoid a collision, with the vehicle whether in motion or stationary;
or
(c) the vehicle running out of control.”

100 It then went on, in sections 104, 115(1)(a), 116(2) and the section 127 definition of “claimant” to create rights and obligations by reference to whether “death or bodily injury” has been “caused by or has arisen out of the use of a motor vehicle”, or closely similar phrases.

101 In Western Australia, the Motor Vehicle (Third Party Insurance) Act 1943 (WA), as contained in the reprint of 11 March 1992 and also as in the reprint as at 20 November 1998, contains in section 3(7) provision that:

“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 in consequence of the driving of that vehicle, or of the vehicle running out of control.”

102 Various sections of that Act then imposed liabilities by reference to the phrase “accident which results in the death of or causes bodily injury to any person and is directly caused by, or by the driving of, a motor vehicle”.

103 All of these pieces of interstate legislation apply only if the injury in question was caused by one or other of a specified list of causes. Two of them are cast in the form of double negatives, but that does not affect the substance of the meaning. However none of them imposed a temporal requirement, of when the injury was sustained, to further narrow the scope of injuries within the legislation.

104 There is no indication in the Second Reading Speech or the Explanatory Memorandum that the new 1995 NSW definition of “injury” was intended to do other than narrow the previous definition of “motor accident” so that double insurance between motor accident claims and workers compensation claims was eliminated, and so that an “injury” needed to be caused by particular types of event or circumstance narrower than “use or operation of the vehicle”. Implicit in that was that there was really a relation of cause and effect between that type of event or circumstance and the injury, not just the motor vehicle providing the occasion or setting for the injury, as could happen if “fault in the use or operation of the vehicle” was the test of compensability.

105 Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 was the very sort of case that both the Attorney-General, and the Explanatory Memorandum, explained the 1995 amendments as seeking to overcome. A worker, acting in the course of his employment, was injured while unloading a truck. The truck had a mechanical unloading mechanism (called a “T-bar”) that ordinarily would enable the truck to be unloaded without undue effort on the part of employees. However, that mechanism was broken and the worker’s superior directed him to unload the truck by hand using a crowbar as a lever (itself an unsafe system of work) and the worker was injured in the course of doing so. The dispute was in essence a dispute between a motor vehicle insurer and a workers’ compensation insurer.

106 All judges in the High Court agreed that the worker had not suffered an “injury” within the meaning of the Motor Accidents Act. That conclusion, resulting in it being the workers compensation insurer and not the motor vehicle insurer that bore the loss was, with respect, in accord with the objectives of the 1995 legislation.

107 The ratio (or perhaps the ultimate part of the ratio) of the decision of Gummow, Hayne and Heydon JJ is expressed at 598 [102]-[103]:

“The use in the definition of the emphatic and intensive phrase ‘if, and only if’ directs attention to notions of predominance and immediacy rather than to more removed circumstances. The definition of ‘injury’ looks, for the CTP insurance system, to notions of proximate cause found in insurance law: See Australian Casualty Co Ltd v Federico (1986) 160 CLR 513 at 534-535; March v Stramare(E & M H) Pty Ltd (1991) 171 CLR 506 at 511. That construction is consistent with the subject, scope and purpose of the 1995 Act.
It was the system of work adopted by GSF to deal with the problem of unloading presented by the failure in operation of the motorised T-bar and, in particular, the direction to use the crowbar to lever the containers which had a predominant quality for, and an immediacy to, Mr Oliver's injury. The defect in the T-bar was not a defect by which the accident was caused in the necessary statutory sense.”

108 However, this Court must also bear in mind what their Honours said at 596 [93]-[94], quoted by Spigelman CJ at [10].

109 There are some circumstances in which, if one ignores the context in which the words are used for the moment, an injury could be “caused during” a particular event, but not “sustained during” that event. The relevant meaning of “sustained” given by the Macquarie Dictionary is: “to undergo, experience, or suffer (injury, loss, etc)”. To sustain an injury during an event is for the injury to actually occur while that event is in progress. By contrast, the notion of an injury being caused during an event can include a situation where the cause of the injury (though not the injury itself) happens during that event. Delayed onset of consequences is far from uncommon.

110 But in Allianz v GSF the judgment of the plurality at 596 [93]-[94] was not construing words separated from their context. A relevant part of the context was that “caused during” was part of a compound expression “the injury is a result of and is caused during”. Their Honours rejected the notion that “result” and “cause” have different meanings in the definition of “injury”. They also accepted that the “is a result of” phrase is a different criterion, that is cumulative on the “is caused during” phrase, rather than being a hendiadys (see Pearce and Geddes, Statutory Interpretation in Australian, (6^th ed, 2006) LexisNexis Butterworths, at para [4.35]). As well, their Honours were influenced by a stated objective of the Act (contained in the new section 2A introduced into the Act by the 1995 amendments) of “keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable”, and the requirement introduced by the new section 2B to interpret a provision of the Act in a way that would promote an object of the Act (Allianz v GSF at 598 [101]). This reliance in Allianz v GSF on sections 2A and 2B of the 1995 amendments does not provide a relevant ground of distinction for the definition of “injury” in the MAC Act, because sections 5 and 6 of the MAC Act contain corresponding provisions.

111 Had we been unconstrained by authority, my preference would have been to construe the “is a result of and is caused during” phrase in the definition of “injury” in the MAC Act as a hendiadys. So doing would have enabled the objectives advanced in the Explanatory Memorandum and the Second Reading Speech to be achieved. The repetition of thought in the phrase could be regarded as a further underlining, beyond that achieved by the “if, and only if” phrase, of the need for a causal connection. Such a reading would have avoided a person in a situation like that of the example given by Hodgson JA being without insurance cover. A further example is that if a vehicle were to run out of control due to the fault of the driver and collide with someone’s house, so weakening it that a few minutes later part of the house collapsed and injured an occupant, that injury would not be “sustained during” the vehicle’s running out of control, and so would be outside the cover of the vehicle’s third party policy, on the Allianz construction of “injury”. Examples could be multiplied. It is very hard to see what desirable policy objectives Parliament could have been seeking to achieve by denying cover in such situations, with the possible outcome that the injuries go uncompensated from any source. While one can readily accept that the CTP scheme is not intended to be a comprehensive accident compensation scheme providing substantial damages in all cases of injuries connected in some way to the use of a motor vehicle (cf Allianz at 582-3 [43]-[44] per McHugh J), providing compensation for injuries sustained as a consequence of the negligent driving of a motor vehicle where the injuries are sustained by someone other than the negligent driver seems to be at the core of its purpose. The construction adopted in Allianz has the effect of making the compensability of injuries depend not only on the manner in which they were caused, but also on the time at which they were sustained. It also gives rise to an uncomfortable prospect that it will be argued that a complication or consequence of a condition initially sustained in a motor accident – say, a stroke precipitated by the trauma of the accident, or peritonitis following some internal injuries sustained in the accident and not treated fast enough – is a separate injury to that sustained during the accident, and so outside the scope of compensability. While it clearly needs to be recognised that an objective of both the 1995 amendments and the MAC Act is to keep premiums “affordable”, advancing that purpose in the construction of the Act does not require every provision in it to be construed in the way least favourable to providing cover.

112 I have some doubt about the proper way of reading Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at 150-1 [134], 159 [158] and 164 [178]. One reading is to treat it as saying that it is wrong for an intermediate Court of Appeal to depart from “seriously considered dicta” of a majority of the High Court (simpliciter). Another is to treat it as saying that it is wrong for an intermediate Court of Appeal to depart from seriously considered dicta of a majority of the High Court concerning a topic on which there is a long-established line of authority. Another is that the clear finding that this Court had been wrong to depart from views about the first limb of Barnes v Addy (1874) LR 9 Ch App 244 that had been expressed in Consul Development Pty Ltd v DPC Estates Pty ltd (1975) 132 CLR 373 is based on particular facts of the case. It is not necessary to decide that question in the present case, nor to form a view about whether paras [93]-[94] of Allianz v GSF are dicta, because there is another factor that would make it inappropriate for this Court now to depart from the construction expressed at [93]-[94] of Allianz v GSF even if it were free to do so. It is that paras [93]-[94] of Allianz v GSF have been followed in this Court in Inasmuch Community Inc v Bright [2006] NSWCA 99; (2006) 45 MVR 234 at [24] in Walfertan Processors Pty Ltd v Dever [2006] NSWCA 289; (2006) 47 MVR 140 at [22] and in Hooker v Gilling [2007] NSWCA 99; (2007) 48 MVR 136 at [38], and leave has not been sought to re-argue any of those cases.

113 Even though the definition of “injury” that was construed in Allianz v GSF has now been removed from the MAC Act by the Motor Accidents Compensation Amendment Act 2006, the decision in Allianz v GSF remains of importance. Under the 2006 amending Act the definitions of “injury” and “motor accident” were amended to read:

““ injury means personal or bodily injury and includes:
(a) pre-natal injury, and
(b) psychological or psychiatric injury, and
(c) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.
…
motor accident means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during:

(a) the driving of the vehicle, or
(b) a collision, or action taken to avoid a collision, with the vehicle, or
(c) the vehicle’s running out of control.”

114 There are two reasons for the ongoing importance of Allianz. The first is that under the transitional provisions in the 2006 legislation (schedule 5, clause 19) an amendment made by the 2006 amending Act does not apply in respect of a motor accident that occurred before the commencement of the amendment. The second is that, even concerning motor accidents that are governed by the 2006 legislation, when the new definition of “motor accident” continues to contain the concept that “injury is a result of and is caused … during” identified types of event, the construction of the corresponding phrase in Allianz is likely to remain influential.

115 I agree with the other judges that the time that the Applicant slipped, fell and injured himself was not “during the collision” within the meaning of the definition of “injury” in the MAC Act.

116 I agree with the Chief Justice concerning the reason why leave should not be granted to re-argue Dominello. Even so, the result in Dominello is not consistent with the construction of the definition of “injury” laid down in paras [93]-[94] of Allianz.

117 I agree with the orders proposed by the Chief Justice.

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09/10/2009 - Counsel for the Respondent - Paragraph(s) Cover sheet