HRNG ADELAIDE, 1 April 1996 #DATE 8:5:1996 #ADD 14:10:1996

Counsel for Appellant (City Of Tea Tree Gully): Mr D H Greenwell

Solicitors for appellant: Elston and Gilchrist

Solicitors for respondent: Reilly Basheer Downs and Humphries

JUDGE1 COX J The circumstances of this appeal are described in the reasons of Prior J which I have had the advantage of reading.

In my opinion Millhouse J came to the correct decision.

There has accumulated throughout Australia a large body of case law on the kind of "use" to which a vehicle must be put in order to bring that use in any given instance within the statutory provisions relating to compulsory motor vehicle insurance. The usual formula has been held to include activities with respect to a motor vehicle that would not ordinarily be regarded as acts of driving. The local provision starts with the Fourth Schedule to the Motor Vehicles Act 1959, clause 1 of which at the time of the present accident stated - "The insurer insures the owner of the motor vehicle and any other person who at any time drives the vehicle, whether with or without the consent of the owner, in respect of all liability that may be incurred by the owner or other person in respect of the death of, or bodily injury to, any person caused by, or arising out of the use of, the vehicle in any part of the Commonwealth." The clause had been in that form for many years. However, in 1987 Parliament amended s99 of the Motor Vehicles Act, which is the interpretation section for the Act's third party insurance provisions including the Fourth Schedule, by adding a subsection that affected the Fourth Schedule formula in important respects. See Motor Vehicles Amendment Act (No.4) 1986 s3. The subsection was amended in 1988 so that at the time of this accident it read as follows - "(3) For the purposes 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 when stationary; or (c) the vehicle running out of control." Obviously subsection (3) was intended to limit significantly the expansive interpretation that had previously been given to the Fourth Schedule. It drew a clear distinction between the driving of a vehicle and other vehicle-related activities. See State Government Insurance Commission v Wagner [1993] SASC 4354; (1993) 62 SASR 175 where attention was given to both the notion of "driving" in subs (3) and to the expression "a consequence of". It will be a question of fact in any given case whether death or bodily injury was a consequence of the driving of a motor vehicle. If there is evidence to support a court's finding to that effect, an appellate court will not readily interfere with it. In this case the learned Magistrate in a careful judgment examined the evidence and the law and concluded that the plaintiff's injury arose out of the use of a motor vehicle. In my opinion, however, the learned Magistrate was mistaken and Millhouse J acted correctly in allowing the appeal.

The front end loader was designed to be used as a normal motor vehicle, in the sense of being driven from one point to another, and it could also be operated as a backhoe or as a piece of loading machinery. When this accident happened it was stationary at the kerb and the plaintiff was loading concrete slabs manually into the bucket. The driving or mobile function of the vehicle was disengaged. The vehicle must have been standing in this spot for an appreciable time, because the driver had to wait up to a minute before the plaintiff started loading and this was the fourth of these heavy and cumbersome slabs that the plaintiff had manhandled with difficulty into the bucket. The driver tilted the bucket to adjust the balance of the load and this caused the plaintiff to fall over and injure himself. The evidence does not indicate clearly whether there were any more slabs to be loaded - probably not

• but I do not think that matters. Nothing that could be called an act of driving, subsequent to the loading, had begun.

The learned Magistrate was faced with a factual situation that, in my opinion, called for just the kind of distinction that the 1987 amendment requires. Whatever the words "a consequence of" connote, it must be more than a mere temporal relationship. It is important, in my view, to ensure that the clear policy of the subsection is not undermined by straining the terms "a consequence of" and "driving" and the composite expression beyond their normal meaning. I would not approximate the loading of a vehicle to the sort of driving-related actions, such as fastening a seat-belt or applying the handbrake, that King CJ in Wagner's Case considered (correctly, in my respectful view) to be a part of, or sufficiently closely connected with, the driving of a vehicle for an injury caused by such an action to be regarded for the purpose of s99(3) as a consequence of the driving. In my opinion, the plaintiff's bodily injury did not fall within the Fourth Schedule because subs(3) of s99 of the Act had the effect of excluding it. The mishap was a consequence of the loading of the vehicle, not the driving of it.

I have said that, in my view, a mere temporal connection between driving a vehicle and a non-driving use of it will not bring the latter within the subsection. It might be said that there is more than that here. The purpose of putting the cement slabs into the bucket of the front end loader was to enable the loader driver to transport them to a tip truck, which was evidently a short distance away, so that they could be removed from the area. The driving of the front end loader from one point to another was therefore an essential part of the total operation on which the driver was engaged. However, I do not think that this means that the plaintiff's injury occurred in consequence of the driving of the vehicle. Loading is not the same as driving. They are entirely different activities. The purpose of the subsection, as I understand it, is to give effect to the distinction. We are obliged, I think, to give the words of the subsection their normal meaning, even if the result, within sensible limits, is to distinguish different aspects of a vehicle's use within an overall operation. If the question is disengaged from the social and economic aspects of the compulsory insurance scheme and the influence of the pre-1987 law is resisted, as it must be, I do not think that anyone would say that the plaintiff's mishap was a consequence of the driving of the vehicle. On the contrary, it would be regarded purely as a consequence of the loading operation.

The decision that I have reached is consistent, in my opinion, with the decision in Wagner's Case. There the Court held that a front end loader, similar apparently to that used in the present case, was likewise excluded under the subsection when it was stationary and had its stabilizing jacks in operation and was being operated as a backhoe. That was a clear case. The Court did not have to consider whether its conclusion would have been the same had the vehicle been employed for another function and in different circumstances. It would be arbitrary, however, to interpret the decision as depending on the use of stabilizing jacks which coincidentally prevented the vehicle temporarily from being driven. The point is not how easily or quickly the vehicle could be put into driving mode but whether there was a relevant act of driving of which the injury in question was a consequence.

I should say that I have not found the Attorney-General's second reading speech on the Motor Vehicles Act Amendment Bill (No.4) in 1986 of any assistance in interpreting or applying subs(3). It is unnecessary for me, therefore, to consider whether the Court may properly have regard to the speech in this case.

JUDGE2 PRIOR J The question arising in this appeal is whether injuries sustained by the appellant Heath in an accident at work arose out of the driving of a motor vehicle. A magistrate held that they did, a judge of this Court on appeal held that they did not. Each arrived at their contrary conclusion by relying upon the decision of this Court in SGIC v Wagner(1).

On 21 August 1991 Heath injured his left arm when carrying concrete slabs from old drainage covers and loading them into a front end loader owned and operated by his employer the present appellant corporation. The covers were heavy. As the judge on appeal put it:- "The idea was to load by hand the covers into the bucket of the loader, a job which should have been done by several men. The loader would then carry the covers away."

After lunch a leading hand and another employee of the Corporation left Heath to do the job unaided with another person operating the bucket of the loader. That operator had driven the loader to a kerb in the vicinity of the covers. The front end loader's engine was running. After Heath had placed three slabs in the bucket he had difficulty with the fourth. He tried to push it with his hands without success. Heath said that whilst holding his foot on the slab he tried to "shrug it with the bucket", the operator of the loader curling the bucket to change the centre of balance on it whilst Heath held it with his foot. Heath slipped over backwards and landed on his arm.

Heath gave evidence about the operation of the front end loader. He had been a relief operator of the unit on occasions before the accident. His evidence was that the front end loader bucket was operated by one lever. The movement of the loader was dependent upon a separate four speed gear stick. When the loading operation occurred the loader's engine was running with the vehicle stationary at the kerb. It was necessary to have the engine running to provide hydraulic power for the bucket. Heath said that he fell when the bucket curled up and he slipped on the concrete, falling sideways with his left arm going underneath him on a very awkward angle.

The magistrate found the Corporation guilty of negligence and Heath of contributory negligence, reducing Heath's damages by 10 per cent. The Corporation had initiated third party proceedings against SGIC claiming that as the statutory third party insurer of the front end loader, SGIC was liable to indemnify the Corporation in respect of this liability to Heath. The Fourth Schedule to the Motor Vehicles Act 1959 provides that an insurer:- "insures the owner of the motor vehicle and any other person who at any time drives the vehicle...in respect of all liability that may be incurred by the owner...in respect of...bodily injury to, any person caused by or arising out of the use of the vehicle... ."

Section 99(3) of the Act provides:- "for the purposes of the fourth schedule, death or bodily injury shall 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) the parking of the vehicle; or (c) the vehicle running out of control."

In her consideration of this Court's judgment in SGIC v Wagner(2), the magistrate first referred to a passage in the judgment of Olsson J(3). With respect to the facts of the case then before the Full Court Olsson J said:- "What was here involved were two quite separate, albeit successive, discrete activities. The first was to drive the plant from where it had been stored overnight to the actual worksite. The second was to operate it in what, on any view, was its quite separate and distinct, non-driving, role as a backhoe operation. The plant had, physically, to be taken to the position where the backhoe was to be utilised. From the point at which Wagner rotated the driver's seat he was embarking on an activity which had nothing whatsoever to do with driving the plant. He was then incapable of operating the driving controls and had, by lowering the stabiliser jacks, actually immobilised it. He was in the throes of operating the equipment in its backhoe configuration. The act of driving was no more than a precursor to setting up for a totally different activity. It was, in no relevant sense, the cause of that activity. Nor did that activity, in the legal sense, result from the driving - as being the end product of it, in terms of proximate cause and effect."

The magistrates also quoted an earlier passage from Olsson J's judgment in which His Honour said(4) that in determining whether liability arises under the Motor Vehicles Act provisions, "a successive, two stage process of evaluation necessarily arises." His Honour identified the first question as whether on the particular facts before the Court, bodily injury arose out of the use of the vehicle in question. If that question was answered in the affirmative the second to be posed and answered was whether it had been demonstrated that the bodily injury was not a consequence of the driving of the vehicle.

Other authorities were cited, including an earlier judgment of Olsson J(5). That case was decided before the enactment of subs(3) of s99. In it His Honour summarised the effect of judgments in Government Insurance (NSW) v RJ Green and Lloyd Pty Ltd(6), a case involving injury whilst loading a vehicle. Having noticed a distinction sought to be made from certain remarks of Justice Olsson in Wagner's case(7), the magistrate nonetheless found that Heath's injury occurred "...arising out of the use of a motor vehicle. The engine was running, (the operator) was in the driver's seat having driven to the kerb before stopping to enable (Heath) to place a load of concrete slabs in the bucket. Upon completion of the task the operator (intended to raise the bucket and drive to a truck. The front end loader was being operated as a motor vehicle."

The magistrate added that she did not consider that the control of the bucket by a separate joystick or the fact that the front end loader was stationary at the time of the injury meant that the front end loader was involved in a separate distinct activity.

On appeal, Millhouse J acknowledged that Olsson J was correct in observing that when the front bucket of such loader was being used for loading, unloading or moving material the vehicle was simply driven as an ordinary motor vehicle and remains a motor vehicle for the purposes of the Motor Vehicles Act. Millhouse J's view was that that observation was confined to "the machine being driven along and picking up material as it went." His Honour continued:- "That is not the situation here. Here the machine was stationary, had been for some time and was only in front end loader mode - similar to the situation in Wagner's case."

In Millhouse J's view the magistrate erred. In his view the machine "... was not being simply driven on its four wheels as an ordinary motor vehicle. It was stationary and being used as a front end loader." In His Honour's view:- "That it had been driven to the spot and would, when the covers were all loaded, be driven away was not to the point."

The situation was as Olsson J had described it in Wagner(8) namely that, "the act of driving was no more than a precursor to setting up for a totally different activity." Millhouse J also said that it was equally true that the driving away again after that activity was complete was a totally different activity from what was occurring when the injury arose. In Millhouse J's view as in Wagner's case, so in this, "the incident in which (Heath) was injured was separate from the driving. The only connection between injury and driving was temporal and that is not enough."

In my view the magistrate was correct in that the facts here disclosed that Heath sustained injury in consequence of the driving of the vehicle, not in consequence of the use of a motor vehicle for an activity which prevented the vehicle being used as a motor vehicle. The facts here disclose quite clearly that the loading was part of the driving of the vehicle in a way in which the use of the back hoe in Wagner was not. On the facts of this case the vehicle was not immobilised. The driving was not merely a precursor to the activity occurring when Heath was injured. Driving had preceded the loading and was to follow immediately upon the completion of the loading operation. The injury was a consequence of the driving and not a consequence of the use of a vehicle in the static way arising in Wagner.

The evidence of the operator was that but for the accident occurring he was going to, "raise the bucket up and reverse around and drive along ... to the truck ... swing around to the truck and lower the bucket down and roll the material out into the back of the tip truck."

Acts preparatory to driving and immediately connected with intended driving are in consequence of the driving of a vehicle. So too, actions subsequent to the driving but flowing from it and closely connected with it, such as applying a locking device or handbrake, or closing windows immediately after bringing the vehicle to a standstill. Such acts were seen by King CJ in Wagner(9), to be "sufficiently connected with the driving to be said to be 'in consequence of' it." In Wagner's case King CJ saw a distinct separation between the activity of driving, which had been completed, and the activity of preparation for the operation of the backhoe. As already noticed, Millhouse and Olsson JJ spoke of the driving in that case as being "no more than a precursor to setting up for a totally different activity"(10). The injury therefore did not occur in consequence of the driving of the vehicle.

In seeking to uphold the single judge's view, counsel for the respondent referred the Court to the second reading speech of the Attorney-General to Parliament on 27 November 1986, when the amendment to s99 enacting subs(3) in its present form was put before Parliament. Reference was made to the very expansive interpretation of the Fourth Schedule by courts and rulings that the Compulsory Third Party Insurance Fund extended to cover injuries sustained by a person while loading or unloading a vehicle, when slipping from the top of an oil tanker or when jumping from the tray of a truck. Some of the cases were said to "clearly fall outside what was originally intended by legislation".

Contrary to earlier authority, recently this Court has said that it is permissible to have regard to the second reading speech on the Bill amending an Act of Parliament to ascertain the mischief at which the subsection was aimed(11). Doing that is not particularly helpful in this case since only some, not all, of the cases were said to clearly fall outside what was originally intended by legislation. Not all cases of loading and unloading were identified as falling outside what was originally intended by the legislation, nor did subs(3) of s99 make specific reference to loading or unloading of a vehicle.

A construction which promotes the purpose or object of an Act is to be preferred(12). The absence of reference to loading and unloading in the amending provision means that loading or unloading may come within the amendment, or it may not. Wagner's case(13) is authority for the proposition that some loading or unloading may not be in consequence of the driving of a motor vehicle. The language of the amending Act is such that an injury may still arise out of the use of a vehicle if the injury be incurred whilst a vehicle is being loaded. The evidence in this case, particularly that quoted, persuades me that the magistrate was correct to find that that injury was sustained as a consequence of the driving of the vehicle.

I would allow the appeal and restore the judgment of the magistrate making the second respondent liable to indemnify the Corporation for its liability to Heath.

JUDGE3 DEBELLE J There is a long line of authority which has given an expansive interpretation to the expression "arising out of the use of a motor vehicle" or like expressions. It is apparent from the terms of s.99(3) of the Motor Vehicles Act 1959 that Parliament intended to restrict the ambit of the expression "caused by, or arising out of the use of the vehicle" in the Fourth Schedule to the Act. That intention appears from the terms in which s.99(3) is expressed: "(3) For the purposes 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." The question in this case is whether this accident was a consequence of the driving of the front end loader or whether it resulted from the use of the front end loader in its loading function.

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

I agree with Cox J that, whatever is denoted by the words "a consequence of", it must be more than a mere temporal relationship. It is not enough that the relevant activity immediately precedes or follows the activity of driving. The activity must also be one which is sufficiently closely connected with the driving of the vehicle in a mechanical or functional sense as distinct from a temporal sense. I agree with King CJ in State Government Insurance Commission v Wagner [1993] SASC 4354; (1993) 62 SASR 175 at 176 where he said that the activity of driving includes that which is immediately or subsequent to driving as well as being preparatory or subsequent to driving as well as being immediately connected with driving. The examples given by King CJ reinforce the requirement that the activity be closely connected with driving and that more than a temporal relationship is required. The reference by Olsson J in Wagner's Case (supra) at 182 to "a single continuum of activities which, in their totality, constituted but the one act, an integral portion of which was the driving of the plant in the strict sense of that word" must be understood in the context of that decision. His Honour was not formulating a universal test for it includes acts which are part of a temporal sequence resulting in driving. There will be cases, such as the instant case, in which the act causing the death as injury very closely precedes driving but does not form part of it.

The act of curling the bucket of the front end loader was immediately preparatory to driving the loader to the point where the operator intended to drop the load on to a waiting truck. The evidence shows that the operator intended to curl and then raise the bucket, reverse the loader and then drive it to the truck to drop off the load. The act of moving the loader from the point of loading to the truck probably constituted the act of driving the loader. I will assume that it did. The act of curling the bucket was immediately preparatory to the driving in a temporal sense only. Although that and the following acts were all to be part of a sequence of steps following immediately upon one another, they do not all constitute the activity of driving the loader. The act of curling the bucket was undertaken to make the load more secure. In principle, it was the same kind of act as tying down a load or taking any other step to secure a load before driving. It is reasonable to infer that, had the operator been aware that the load was insecure, he would have taken steps to make it more secure before driving across to the truck to drop off the load. The operator was, therefore, finishing the act of loading before driving it to another point. The activity of driving was to follow immediately after the bucket had been raised from the ground. It is a nice question whether the act of raising the bucket was the completion of the loading or the beginning of the driving. But it is unnecessary to decide that question. It is at least possible to identify the action of curling the bucket as part of the loading process. The activities of loading and driving were separate in function and can be distinguished from one another in this way. For these reasons the first respondent was not injured by the act of driving of the front end loader but by the act of loading it.

In all likelihood, there will be other instances where the line between the function of driving and other functions will not always be easy to draw. For example, it will be a nice question whether a front end loader is being driven where for the purpose of loading it is rolling forward so that the bucket scoops up what is in its path. These will be questions of fact for courts to determine. This is one reason why I conclude that, even if the Court is at liberty to refer to the second reading speech of the Attorney-General on the Motor Vehicles Act Amendment Bill (No 4) in 1986, no assistance can be gained from it when determining the question in this case. It will always be necessary for courts to determine the nature of the activity which has caused the death or injury, the subject of the action.

For these reasons the claim of the first respondent does not come within the terms of the Fourth Schedule to the Motor Vehicles Act and the second respondent, the State Government Insurance Commission, is not liable to indemnify the appellant in respect of its liability to the first respondent. I would dismiss the appeal from Millhouse J.

1 [1993] SASC 4354; (1993) 62 SASR 175 2 [1993] SASC 4354; (1993) 62 SASR 175 3 [1993] SASC 4354; (1993) 62 SASR 175 at 182 4 [1993] SASC 4354; (1993) 62 SASR 175 at 179 5 Muegel v Fast Freight Pty Ltd (1987) 45 SASR 20 6 [1966] HCA 6; (1966) 114 CLR 437 7 [1993] SASC 4354; (1993) 62 SASR 175 at 177 and 178 8 [1993] SASC 4354; (1993) 62 SASR 175 9 [1993] SASC 4354; (1993) 62 SASR 175 at 176 10 See [1993] SASC 4354; 62 SASR 175 at 177 and 182 11 Devine v Solomijzuk and Todd (1983) 32 SASR 538; Workers Rehabilitation and Compensation Corporation v Lu (1995) 183 LSJS 193; Workcover Corporation of South Australia v Summers (FC, 2 November 1995, unreported) 12 Acts Interpretation Act 1915s22; Hoare v R [1989] HCA 33; (1989) 167 CLR 348 at 360-361 13 [1993] SASC 4354; (1993) 62 SASR 175