Chase v Blue Op Partner Pty Ltd & Ors

District Court of NSW|2021-06-10

Solicitors: Law Partners (Plaintiff) Norton Rose Fulbright (Defendants) File Number(s): 2020/171120

Introduction

The plaintiff alleges that on 9 June 2017 he was driving a heavy vehicle owned by the defendants. During the course of a journey in the vehicle the plaintiff alleges that he suffered a serious lower back injury.
By an Amended Statement of Claim filed on 11 November 2020 the plaintiff pleads that the defendants owed him a duty of care, breached that duty, and that such breach caused him injury, loss and damage.
Paragraph 29 of the Defence filed on 3 December 2020 pleads as follows: "In further answer to the whole of the Claim, the Plaintiff's claim for damages in these proceedings is a 'claim' in respect of injuries allegedly caused by the fault of the owners of the motor vehicle referred to in paragraph 4A of the Claim in the use or operation of that vehicle and is thus a claim within the meaning of s 3 of the Motor Accidents Compensation Act 1999 (NSW)."
Paragraph 32 of the Defence pleads that the proceedings should not have been commenced and are not maintainable by reason of s 108 of the Motor Accidents Compensation Act 1999 (NSW) ("the MAC Act").
The defendants filed a Notice of Motion on 5 February 2021 seeking an order that the proceedings be dismissed pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW).

Motor Accidents Compensation Act 1999 (NSW)

The submissions for the defendants relied upon s 108 of the MAC Act which is headed "Claims Assessment or Exemption Pre-Condition for Commencement of Court Proceedings". Section 108(1) says: "Subject to Division 3.2 of the Personal Injury Commission Act 2020, a claimant is not entitled to commence court proceedings against another person in respect of a claim unless - (a) a certificate has been issued in respect of the claim under s 92 (Claims exempt from assessment), or (b) a certificate has been issued in respect of the claim under s 94 (Assessment of claims)."
The submission for the defendants is that the proceedings brought against them by the plaintiff are "court proceedings against another person in respect of a claim" and that no certificate has been issued either under s 92 or s 94. If the plaintiff was not entitled to commence these proceedings then they are a nullity and they should be dismissed.
It is common ground that no certificate has been issued under s 92 or s 94 of the MAC Act.
Section 5 of the MAC Act sets out the objects of the Act. One of the ways in which the Act aims to achieve these objects is to provide for assessment of claims as a pre-condition to the commencement of court proceedings. Unless a claim is exempted from assessment or has been assessed, court proceedings cannot be commenced.
It can be seen from the opening words of s 108 of the MAC Act that the defendants argue that the plaintiff is a "claimant" within the meaning of the MAC Act and that his proceedings are in respect of a "claim".
Section 3 of the MAC Act contains definitions.
The word "claimant" means "a person who makes or is entitled to make a claim".
The word "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".
The word "fault" means "negligence or any other tort".
The phrase "use or operation" of a motor vehicle includes the maintenance of the vehicle.
Section 3A of the MAC Act has been described as a "gateway" provision. Section 3A(1) provides as follows: "This Act (including any third-party policy under this Act) applies only in respect of the death of or injury to a person that is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle and only if 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, or (d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control."
Section 108 of the MAC Act is contained in Chapter 4 of the Act. Section 3B of the MAC Act provides as follows: "(1) The application of Chapters 3-6 in respect of death or injury that results from the use or operation of a motor vehicle is limited to death or injury that - (a) is caused by a motor accident for which the vehicle has motor accident insurance cover, or (b) gives rise to a work injury claim, other than a work injury claim in respect of the death of or injury to a coal miner (as defined in clause 3 of Part 18 of the Schedule 6 to the Workers Compensation Act 1987)."
Section 3B(3) provides that death or injury gives rise to a "work injury claim" if the death or injury was caused by the negligence or other tort of the worker's employer. Clearly the present action is not a work injury claim, as it is not brought against the plaintiff's employer.

Elements of a "claim"

For s 108 of the MAC Act to apply to these proceedings, so as to prohibit their effective commencement, the court must be satisfied that these are proceedings in respect of a "claim" as defined in the MAC Act.
The elements of the word "claim" arising from the definition in s 3 are as follows: 1. The plaintiff must be seeking damages - this element is satisfied in the present case as the relief claimed is damages, interest and costs. 2. The damages must be in respect of an injury to a person - this element is satisfied in the present case as pleaded in par 8 and par 28 of the Amended Statement of Claim. 3. The injury must be caused by the fault of the defendant - this element is satisfied in the present case as the plaintiff alleges that the defendants were negligent, as pleaded in pars 9 and 16 of the Amended Statement of Claim. 4. The fault must be that of the owner of the motor vehicle - this element is satisfied in the present case as pleaded in par 4A of the Amended Statement of Claim. 5. The fault must be "in the use or operation of the vehicle" - this is the key dispute between the parties in relation to the Notice of Motion.
To resolve that dispute it is first necessary to examine the matters pleaded in the Amended Statement of Claim filed on 11 November 2020.

Facts Alleged by the Plaintiff

The plaintiff pleads that he was employed at the relevant time by National Equipment Relocation Pty Ltd as a truck driver. The defendants operated in partnership and as part of their business required trucks to be relocated from one site to another. The defendants were the owners of a Mercedes Benz truck registration number AJ89YE. The plaintiff alleges that on 9 June 2017 he attended the Wallsend premises of the defendants and was requested by his employer to collect the Mercedes Benz truck and drive it to the defendants' Ourimbah depot.
The plaintiff pleads as follows in relation to the event which caused his injuries: "7. At or about 1pm the Plaintiff was driving on the 'M1' when he hit a dip in the roadway which caused a jolt, causing the Plaintiff to bounce off the seat and subsequently landing on the seat, with his buttocks hitting the base of the seat without the protection of cushioning provided for by what should have been a functioning pneumatic air suspension seat. 8. As a result of striking his buttocks on the base of the pneumatic air suspension seat the Plaintiff sustained injury, loss and damage."

The Negligence Alleged by the Plaintiff

In pars 9-15 of the Amended Statement of Claim the plaintiff pleads the elements necessary to satisfy the negligence and liability provisions in s 5B of the Civil Liability Act 2002 (NSW) ("CLA").
In par 16 of the Amended Statement of Claim the plaintiff pleads that his injury, loss and damage were caused by a breach of duty by the defendants. The particulars of that breach are set out in pars 17-26 as follows: "17. Failed to ensure the Plaintiff was driving the said Mercedes Benz truck with a non-malfunctioning driver pneumatic air suspension seat; 18. Failed to repair, inspect and/or maintain, prior to use by drivers, specifically the Plaintiff, the mal-functioning and faulty driver's pneumatic air suspension sea of the said truck; 19. Failed to take any or any adequate precautions for the safety of the Plaintiff; 20. Exposed the Plaintiff to a risk of injury which could have been avoided with reasonable care; 21. Failed to take all necessary steps to prevent the Plaintiff sustaining injury; 22. Failed to carry out, prior to the Plaintiff's injury, any/or any adequate safety audit of the Plaintiff's work duties; 23. Failed to provide proper supervision of the Plaintiff while he performs work duties that put him at risk of injury; 24. Failed to exercise due and proper care for the Plaintiff's safety; 25. Failed to assess or adequately assess safety hazards to which the Plaintiff was subject to in the course of his duties of driving the truck; 26. Failed to warn the Plaintiff of the faulty pneumatic air suspension seat to which he would be exposed in driving the truck."
I propose to ignore the particulars of breach of duty pleaded in pars 19, 20, 21 and 24 of the Amended Statement of Claim. These are boilerplate recitations of the existence of a duty of care and its content, rather than particulars of breach based upon the facts in the case. Such generic particulars do not advance the plaintiff's case and do not satisfy the necessity under s 5B of the CLA to set out the steps which a defendant should have taken, but did not take, to discharge its duty of care.
That leaves for consideration pars 17, 18, 22, 23, 25 and 26 of the Amended Statement of Claim.
Given that most of the elements of the term "claim" used in s 108 are satisfied (i.e. this is a claim for damages in respect of injury to the plaintiff caused by the fault of the owner of a motor vehicle) the crucial question then is whether these particulars show that the claim arises "in the use or operation of the vehicle". As recited above, this phrase includes the maintenance of a vehicle.
Particulars were sought of some of the pleaded breaches of duty. In relation to par 18 of the Amended Statement of Claim, which alleged a failure to "repair inspect and/or maintain" the air suspension seat, the particulars (DX 1, p 10, par 1.9) said: "Inspection should have occurred prior to the use of the truck by a driver. It should have entailed regular inspection of the driver's seat and the functioning of the pneumatic air compression system."
In relation to par 22 of the Amended Statement of Claim, which alleged a failure to carry out a safety audit of the plaintiff's work duties, the particulars were: "This is a matter for an expert opinion. It is asserted that the safety audit should have been undertaken at such regular intervals to ensure that any system of work or defect in plant and equipment was identified and rectified."
In relation to par 23 of the Amended Statement of Claim, which alleged a failure "to provide proper supervision of the Plaintiff", the particulars modified that allegation by saying: "It is not alleged that the Plaintiff should have been supervised as such, but rather that those responsible for the maintenance of the Defendants [sic] fleet were supervised to ensure all vehicles were road worthy and safe to drive."
On the face of it pars 17, 18, 23 (as understood in the light of the particulars) and 26 all involve or arise out of the maintenance of the vehicle, and prima facie would satisfy the necessity for the claim to involve the use or operation of a motor vehicle (including the maintenance of the vehicle).
However, counsel for the plaintiff drew attention to par 4B of the Amended Statement of Claim which reads: "At all material times the Defendants had direction and control of the plaintiff's work duties."
Counsel submitted that pars 18, 22 and 25 of the pleading related to a "systems case" rather than to a case arising out of the use or operation of a motor vehicle. Both counsel accepted that a claim arising out of a motor vehicle event, which occurred in the course of employment, could have a dual character i.e. it could be a motor vehicle claim and/or it could be a common law claim which stood outside the MAC Act.
Counsel for the defendants submitted (MFI 1, par 45): "All of the allegations of negligence can properly be described as being acts or omissions occurring 'in the use or operation' of the truck. A failure to inspect a vehicle before it is driven, a failure to remove a defective vehicle from operation, a failure to warn the plaintiff about the defect before he operated the truck and the failure to ensure that appropriate records were maintained in relation to the maintenance of the vehicle, can all be described as omissions 'in' the use or operation of the vehicle. The maintenance of a vehicle is expressly included in the non-exhaustive definition of 'use or operation'."
Counsel for the plaintiff submitted (MFI 2, par 20) that the plaintiff's argument, that his cause of action against the defendants is one outside the bounds of the MAC Act, was not so obviously untenable that it cannot possibly succeed or was manifestly groundless. In oral submissions counsel for the plaintiff pointed out that there had to be a determination made, based on the lay and expert evidence, as to how the plaintiff suffered injury, and whether or not the injury could be said to be due to the nature and conditions of employment and use of the truck. Counsel for the plaintiff further submitted that the motion was "premature" and that the appropriate orders would be for this motion to be stood over to a date to be fixed, so that the plaintiff could satisfy the procedural requirements of the MAC Act and bring a claim governed by that Act against the defendant (which would then be indemnified by its CTP insurer QBE).
Counsel for the plaintiff also indicated that given the severity of the plaintiff's injuries, he would have a worthwhile work injury damages claim under the Workers Compensation Act 1987 (NSW) and that this too could be brought by separate proceedings in the District Court. In effect, counsel was submitting that the present "systems case" against the defendant, a future claim against the defendant based upon the MAC Act and a future claim against the employer for work injury damages should be heard together and that the plaintiff should be permitted to run his "systems case" against the defendant as such a case was clearly not untenable or bound to fail.

Emad Trolley Pty Ltd v Shigar

Counsel for the defendants relied upon the decision of the Court of Appeal in Emad Trolley Pty Ltd v Shigar [2003] NSWCA 231. The leading decision was delivered by Justice McColl. Justice Hodgson agreed with Justice McColl and added short reasons of his own. Justice Meagher agreed with Justice Hodgson.
The plaintiff in that case had been injured in the course of his employment when he fell from his employer's motor vehicle. The case was pleaded against the employer as an unsafe system of work to avoid the operation of the MAC Act. The employer asserted that if the plaintiff was injured as he alleged, his injuries constituted a "motor accident" within the meaning of the MAC Act and that he was in breach of ss 70 and 108 of that Act, and thus the proceedings were not sustainable. The employer filed a Notice of Motion seeking dismissal of the Statement of Claim on the grounds that it had been filed in contravention of s 108 of the MAC Act. The District Court judge dismissed the motion, but the Court of Appeal upheld the appeal, saying that the proceedings should have been dismissed because they were governed by the MAC Act and they were in breach of s 108.
The plaintiff in that case was collecting supermarket trolleys from a car park. As the trailer with trolleys was being pulled around the car park, the plaintiff fell from the back of it and sustained injury. He alleged that such injuries were caused by the negligence of his employer, and he pleaded that there had been a failure by his employer to provide a safe system of work.
Justice McColl recorded that the plaintiff contended that his claim could be made outside the MAC Act scheme because his claim was framed as a breach of the employer's duty of care.
Her Honour said that s 108 operates "…as a blanket prohibition on the commencement of proceedings if the relevant certificates have not been issued" - [44].
In examining the previously decided cases, her Honour said at [53]: "The most recent case in which these issues have been considered is Allianz Australia Insurance Limited v GSF Australia Pty Limited [2003] NSWCA 174 which concerned the question whether the plaintiff was injured in circumstances which fell within the definition of 'injury' for the purposes of the Motor Accidents Act 1988 or the Workers Compensation Act 1987. The plaintiff was injured when he was unloading a truck manually, as directed by his employer, because the truck's unloading mechanism was inoperative. Mason P and Davies AJA (Santow JA dissenting) held that the circumstances fell within the meaning of 'injury' for the purposes of the Motor Accidents Act 1988. Davies JA (at [67]) described a submission that the plaintiff's injury was caused not by the defect in the vehicle, but 'by the employer's negligence in directing that the defective vehicle be used and that the goods be moved manually during the unloading process…' as having a 'subtlety about it that does not meld well with the Common Law's robust, commonsense approach to issues of causation'. He agreed with Clarke JA's rejection of a 'similar and equally subtle argument' in NRMA Insurance Limited v NSW Grain Corporation."
Justice McColl said at [76]: "The provisions of the MAC Act 1999 I have set out earlier in this judgment indicate a strong intention on the part of the legislature that any claim in respect of an injury or death which arises from a motor accident is to be resolved expeditiously through the assessment process rather than court proceedings."
Her Honour again noted at [77] that construing s 108 as mandatory is consistent with the legislative scheme.
At [78] her Honour said: "In my view the legislative scheme should be interpreted consistently. Just as a third party insurer cannot escape liability under the CTP policy issued pursuant to the scheme (see s 10) by seeking to categorise circumstances in which an injury took place as caused by breach of an employer's duty of care rather than 'motor accident' as defined so, too, a plaintiff should not be able to avoid the legislative consequences of having suffered 'injury' in a 'motor accident' by the device of pleading his case as arising from a breach of his employer's duty of care. Interpreting the MAC Act 1999 in this manner is consistent with the legislative purpose. It is also consistent with principles of statutory interpretation."
The conclusion reached by Justice McColl is set out in [81]-[87] as follows: "81 The real question, of course, is whether a particular case can properly be characterised as falling within the legislative net. The respondent of course conceded that the circumstances of his injury were such that he could fall within s 108, save for his argument that the manner in which his Statement of Claim was pleaded was sufficient to enable him to avoid its reach. 82 I am satisfied that concession was properly made. In order to be caught by the terms of s 108 it would be necessary that the respondent was a 'claimant', meaning a person making or entitled to make a 'claim' for damages in respect of an injury to him 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 was a result of and was caused during the driving of the vehicle. 83 It is plain both from circumstances of the accident as described in the respondent's claim form and the particulars to which I have referred that the respondent's injury was caused by the fault of the owner or driver of the motor vehicle in its use or operation. The fact that it was the claimant's system of work which put the respondent on the trolley truck/tractor from which he slipped, does not detract from the proposition that it was, at least, the owner's 'fault' which put the respondent in a position where, while the vehicle was being used or operated, he was susceptible to fall from it and be injured. That brings the circumstances of the respondent's injury and his action against the appellant within the meaning of the expression 'claim' in the MAC 1999. 84 In this case there could be no doubt, in my view, that applying the terms of the Act and the authorities to which I have referred, the respondent's 'injury' was suffered in circumstances which fell within the meaning of that term in the MAC Act 1999 and hence the definition of 'claim' for the purposes of s 108. 85 It matters not that the 'injury' may also be capable of being characterised as suffered as a breach of the appellant's duty of care as employer. Once it is capable of being characterised as an 'injury' within the MAC Act 1999, any 'claim' to recover damages in relation to it must be pursued in accordance with the legislative scheme. 86 As the statutory pre-conditions to the commencement of proceedings had not been complied with, the proceedings were not properly commenced and the Statement of Claim should have been struck out. 87 It should be pointed out that this conclusion does not prevent the respondent from, in due course, taking court proceedings. It merely means that in the first instance he must comply with the legislative scheme and submit his claim for assessment. If that is unsuccessful in the circumstances in which I have described and the relevant certificates are issued he can then pursue his claim through the court process."

Consideration

I accept the submission of counsel for the defendants recorded in par 37 above. If the case is one where the fault of the owner is that the motor vehicle was not maintained, then there is no bright line between necessary inspection of the vehicle (which would have discovered the fault) and maintenance of the vehicle (which would have rectified the fault).
Paragraph 18 of the Amended Statement of Claim pleads fault in the maintenance of the truck, but also pleads fault in relation to the inspection of it. These are two sides of the same coin. Both are part of the use or operation of the vehicle.
Paragraph 22 of the Amended Statement of Claim refers to a "safety audit" in relation to the duties of the plaintiff. There was nothing about the duties given to the plaintiff (relocating the truck from Wallsend to Ourimbah) which had anything to do with the "fault" of the owner. A safety audit, if there was a need for one, is really just another name for inspection of the truck to determine if it required maintenance.
Paragraph 25 of the Amended Statement of Claim refers to safety hazards to which the plaintiff was subject to in the course of his duties of driving the truck. On the facts pleaded, the only relevant safety hazard was a seat which required maintenance.
The pleading in these proceedings and in particular pars 18, 22 and 25 of the Amended Statement of Claim is a valiant attempt to plead a case outside the bounds of the MAC Act. However the facts pleaded make it plain that the claim is one which falls squarely within the bounds of a "claim" as defined in the MAC Act. To paraphrase Justice McColl (in Emad Trolley at [78]) the plaintiff should not be able to avoid the legislative consequences of having such a "claim" by the device of pleading his case as arising from a breach of the motor vehicle owner's duty of care in a so-called "systems case".
Again to paraphrase Justice McColl (in Emad Trolley at [81]) this case is one which falls within the legislative net of the MAC Act. No certificates have ever been issued under that Act and thus the plaintiff was prohibited from commencing these proceedings by s 108 of the MAC Act. The proceedings are a nullity and the "General Steel Industries" test is satisfied. I propose to dismiss the proceedings for those reasons.
I was informed during the hearing of the Motion that the plaintiff has submitted a claim form to QBE as the CTP insurer of the defendants and proposes to pursue his rights under the MAC Act. Nothing in this judgment affects his right to make that claim: Emad Trolley at [87].

Orders

The orders are: 1. Dismiss these proceedings brought by the plaintiff against the defendants. 2. Order the plaintiff to pay the defendants' costs of the proceedings including the costs of the motion. 3. Liberty to approach my Associate by email within 7 days if a different costs order is sought arising from an Offer of Compromise or a Calderbank offer.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 June 2021

At a glance

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Judgment (10 paragraphs)

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Legislation Cited (4)

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Cited By (1)