Evans v Transit Aust P/L & Anor [2000] QCA 512

[1] PINCUS JA AND CULLINANE J: This appeal involves issues of construction of the Motor Accident Insurance Act 1994 ("the Act") as amended. The issues are of some importance although the significance of one of them may have been reduced by recent amendments.

[2] The plaintiff, who did not appear on the appeal, instituted proceedings against the appellant who was her employer, and the second defendant who was the insurer under the Act of the buses which she drove.

[3] It was the plaintiff's case that in the period between 8 January 1996 and 25 August 1996 she sustained spinal injuries as a result of driving buses with defective seats. His Honour found in favour of the plaintiff on the issue of liability and made two relevant findings which determined where the obligation to indemnify in respect of her injuries fell. The first concerned the question whether for the purposes of s 5(1)(a) of the Act the plaintiff's injuries were a result of the driving of the buses. His Honour found that they were. We will return to this finding later in these reasons.

[4] The second finding concerned whether the plaintiff's injuries (which were a consequence of the cumulative effect of the driving of the buses) were the result of an incident or incidents. His Honour thought that this was a pre-requirement to a liability in the second respondent to indemnify and that it was not satisfied in this case. He dealt with these issues in paragraphs [52], [53] and [56] respectively (pp 329 and 330 of the record) in the following way:

"[52] The objects of the MAI Act include the continuation and improvement of the system of compulsory third party motor vehicle insurance and the encouragement of speedy resolution of personal injury claims resulting from motor vehicle accidents: Section 3. The Act regulates the making and resolution of motor vehicle accident claims. The provisions of the Act relating to claims, their resolution by legal proceedings or otherwise and judgment are all based on there being a motor vehicle accident claim that is, a claim for damages based on a liability for personal injury arising out of an incident in which personal injury is caused by, through or in connection with a motor vehicle that is, a motor vehicle accident: see the definitions in Section 4 of `motor vehicle accident claim' and `motor vehicle accident'. Section 5 further limits the application of the Act as set out above."

Motor vehicle accident" is defined in s 4 as meaning: "an incident in which personal injury is caused by, through or in connection with a motor vehicle."

"[53] The way in which the plaintiff suffered personal injury is not at first glance readily described as an incident or a motor vehicle accident. Section 32C of the Acts Interpretation Act 1954 of course provides that in an Act, words in the singular include the plural. Section 4 of that Act has the effect that the application of Section 32C may be displaced by a contrary intention appearing in the MAI Act.

[56] However, I find that the plaintiff's injury was not personal injury arising out of a motor vehicle accident. For the Act and the standard policy to apply there must be a motor vehicle accident that is, an incident or incidents in which personal injury is caused by through or in connection with an insured motor vehicle. Here there was no such identifiable incident. There was rather a number of occasions of driving of buses with the defective seat the cumulative effect of which was injury to the plaintiff's back."

[5] These two findings are the subject of this appeal. The appellant contends that his Honour was wrong in finding that before the statutory policy applied to an injury it was necessary that the injury be the consequence of a motor vehicle accident and by virtue of the statutory definition an incident or (applying s 32C of the Acts Interpretation Act) incidents. Alternatively it was said that if this finding was correct his Honour erred in finding that the plaintiff's injuries were not the consequence of an incident or incidents. The second respondent contended that his Honour's finding that the plaintiff's injuries were a result of the driving of the buses was wrong and should be overturned.

[6] A starting point for a consideration of the relevant statutory provisions is the statutory policy which is contained in a Schedule to the Act.

1.(1) This policy insures against liability for personal injury caused by, through or in connection with the insured motor vehicle anywhere in Australia.

(2) This policy extends to liability for personal injury caused by, through or in connection with a trailer attached to the insured motor vehicle or that results from the trailer running out of control after becoming accidentally detached from the insured motor vehicle.

(3) The liability mentioned in subsection (1) or (2) -

(a) is a liability for personal injury to which the Motor Accident Insurance Act 1994 applies;[1] and

(b) includes the liability of a tortfeasor to make a contribution to another tortfeasor who is also liable for the personal injury.

(4) This policy does not insure a person (the "injured person") against injury, damage or loss -

(a) that arises independently of any wrongful act or omission; or

(b) to the extent that the injury loss or damage is attributable to the injured person's own wrongful act or omission.

2. The person insured by this policy is the owner, driver, passenger or other person whose wrongful act or omission in respect of the insured motor vehicle causes the injury to someone else and any person who is vicariously liable for the wrongful act or omission.

3.(1) This policy does not insure an employer against a liability to pay worker's compensation

(2) This policy does not insure against a liability to pay exemplary or punitive damages."

[7] The liability provided for in the statutory policy is a liability for a personal injury to which the Act applies. Section 5 is the relevant provision in this regard:

"5.(1) This Act applies to personal injury caused by, through or in connection with a motor vehicle if, and only if, the injury -

(ii) a collision, or action taken to avoid a collision, with the motor vehicle; 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 a wrongful act or omission in respect of the motor vehicle by a person other than the injured person.

(2) For an uninsured motor vehicle, subsection (1) applies only if the motor vehicle accident out of which the personal injury arises happens on a road or in a public place.

(3) However, this Act does not apply to personal injury caused by, through or in connection with -

(a) a backhoe, bulldozer, end-loader, forklift, industrial crane or hoist, or other mobile machinery or equipment; or

(c) a motor vehicle adapted to run on rail or tram tracks; or

(e) a motor vehicle of a class prescribed by regulation;

unless the motor vehicle accident out of which the injury arises happens on a road."

[8] What is significant for the purposes of this appeal is the absence of any requirement in s 5(1)(a) that the personal injury to which the Act applies (and the policy is thus applicable) should arise out of or be the consequence of a motor vehicle accident and by definition an incident or incidents.

[9] However the term "motor vehicle accident" appears in many places throughout the Act. The objects of the Act are to be found in s 3:

"3. The objects of this Act are -

(a) to continue and improve the system of compulsory third-party motor vehicle insurance, and the scheme of statutory insurance for uninsured and unidentified vehicles, operating in Queensland; and

(b) to provide for the licensing and supervision of insurers providing insurance under policies of compulsory third-party motor vehicle insurance; and

(c) to encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents; and

(d) to promote and encourage, as far as practicable, the rehabilitation of claimants who sustain personal injury because of motor vehicle accidents; and

(e) to establish and keep a register of motor vehicle accident claims to help the administration of the statutory insurance scheme and the detection of fraud; and

(f) to promote measures directed at eliminating or reducing causes of motor vehicle accidents and mitigating their results."

[10] One of the important changes brought about by the legislation was the introduction of a procedure to be followed prior to the institution of proceedings which is designed to further the resolution of claims without litigation. The relevant part of the Act is Part 4.

[11] Section 34 of the Act imposes obligations to notify accidents in the following terms:

"34.(1) If personal injury arises from a motor vehicle accident -

(a) the driver, person in charge or owner of the motor vehicle involved in the accident must give written notice to the insurer of the motor vehicle within 1 month after the accident; and

(b) a person who proposes to claim damages for personal injury arising from the accident must give written notice to the insurer, or 1 of the insurers, against whom the claim may be made within 1 month after the person first consults a lawyer about the possibility of making a claim.

(a) state the date, time and place of the accident and describe how it happened; and

(b) identify all motor vehicles and drivers involved in the accident as far as known to the person by whom the notice is given; and

(c) state the names and residential addresses of all persons injured in the accident; and

(d) if the notice is to be given by an intending claimant, state -

(i) the intending claimant's full name, date of birth, and residential address; and

(ii) the general nature of the personal injury to the intending claimant; and

(iii) the date the intending claimant first consulted a lawyer about the possibility of making a claim.

(3) A person must not fail to give a notice required under this section."

[12] Section 37 imposes an obligation on a claimant to give notice prior to the institution of proceedings:

"37.(1) Before bringing an action in a court for damages for personal injury arising out of a motor vehicle accident, a claimant must give written notice of the claim to the insurer, or 1 of the insurers, against which the action is to be brought-

(a) containing a statement, sworn by the claimant, of the information required by regulation; and

(b) containing an offer of settlement, or a sworn statement of the reasons why an offer of settlement cannot yet be made; and

(c) accompanied by the documents required by regulation.

(2) The notice must be given within 9 months after the motor vehicle accident or the first appearance of symptoms of the injury.

(3) However, if the motor vehicle cannot be identified, the notice must be given to the Nominal Defendant within 3 months after the motor vehicle accident.

(4) If the notice is not given within the time fixed by this section, the obligation to give the notice continues and the notice, when given, must contain an explanation of the delay but, if a motor vehicle accident claim relates to injury caused by, through or in connection with a motor vehicle that cannot be identified and notice of the claim is not given to the Nominal Defendant within 9 months after the motor vehicle accident, the claim against the Nominal Defendant is barred.

(5) If 2 or more motor vehicles were involved in the motor vehicle accident, the insurer to which a notice of claim is given under subsection (1) must, within 7 days after receiving it, give a copy of the notice to any other insurer of a motor vehicle involved in the motor vehicle accident."

[13] By s 41 an insurer who receives notice of a motor vehicle accident is required to take certain steps to resolve the claim. These include taking reasonable steps to inform itself of the circumstances of "the motor vehicle accident out of which the claim arises".

[14] The Act contains many other provisions apart from those in Part 4 which include a reference to a motor vehicle accident. It is not necessary to make express reference to these.

[15] The second respondent's argument was that the occurrence of a motor vehicle accident is so central to the scheme of the Act that it would not be possible to give effect to it without importing the requirement that there be an incident out of which the relevant personal injury arises. It was said that if this were not so a person could on the one hand have a right to recover damages from an insurer in respect of personal injury without being subject to the obligation to notify under s 34 or to give notice prior to action under s 37.

[16] Quite apart from the express terms of the provisions contained in Part 4 and other sections of the Act it was contended that there would be serious practical difficulties associated with compliance with the obligations imposed in Part 4 unless an implication that the personal injury arises out of an identifiable accident was made. Particular reference was made to s 34(1)(a) which imposes an obligation on the driver, person in charge or owner of the motor vehicle involved in an accident to give written notice to the insurer within one month of the accident. The second respondent in fact was inclined to contend that such provisions were predicated upon there being a single and discrete identifiable incident.

[17] Viewed in this way the absence of any express requirement in s 5(1)(a) that the personal injury arise out of an incident should be treated as a legislative oversight.

[18] An alternative way in which to view the legislation is to treat the reference to a motor vehicle accident where it appears throughout the Act as no more than the legislator's reference in summary form to the various occurrences for which s 5(1)(a)(i), s 5(1)(a)(ii) and s 5(1)(a)(iii) provide and in the case of s 5(1)(a)(iv) the condition and occurrence for which it provides.

[19] On this approach the reference to a motor vehicle accident and its definition add nothing to the terms of s 5(1)(a) and it is not necessary to import any additional requirement into that subsection that the personal injury for which it provides arises from an incident. Rather the term is a brief compendious reference to the various occurrences provided for in s 5(1)(a) and from which personal injury must result before the Act and thus the statutory policy applies.

[20] In our view support is to be found for this construction in s 5(2) which is the first reference to a motor vehicle accident in the substantive provisions of the Act. The absence of any reference to an incident in s 5(1) which is the provision definitive of the ambit of statutory policy taken with the context in which the term appears in s 5(2) is strongly suggestive that the term "motor vehicle accident" is no more than a reference to the occurrences provided for in s 5(1)(a)(i), s 5(1)(a)(ii), s 5(1)(a)(iii) and s 5(1)(a)(iv).

[21] If this is the case then the difficulties of construction which the second respondent raises would disappear.

[22] Either approach carries with it the conclusion that the legislation is deficient. On the second respondent's approach there has been an omission of a precondition to be satisfied before the policy applies. On the appellant's approach there is at least some ambiguity and perhaps the inclusion of an unnecessary definition or alternatively a definition which assumes that every occurrence which falls within s 5(1)(a) is properly described by the term "incident".

[23] So far as the claim by the second respondent that the construction contended for by the appellant would give rise to practical difficulties is concerned we think that these are more apparent than real. The legislation undoubtedly reflects the reality that personal injury will generally involve a specific incident or perhaps a few specific incidents.

[24] However personal injury caused by the cumulative effect of a large number of minor occurrences is by no means uncommon. Claims of this kind have had to be accommodated within the legislative framework of the earlier Motor Vehicles Insurance Act 1936_._ Under that Act the statutory policy covered liabilities in respect of a vehicle for personal injury arising by, through or in connection with a vehicle. This would include liability for personal injury of the kind sustained here. An obligation to give notice was imposed on the owner or driver of the vehicle (as soon as practicable after the `occurrence'). (Motor Vehicles Insurance Regulation 1968, reg 8(1)). In Britts `Third Party Insurance in Australia"(1973) the relevant legislation of each Australian State and Territory appears. The ambit of the statutory policy is expressed in somewhat similar terms to the Queensland Act but with some significant differences. In each Act and Ordinance an obligation to give notice is similarly imposed and fixed by reference to the "occurrence" or the "accident".

[25] The provisions of Part 4 in this regard, as with the provisions of the earlier legislation, have to be applied in a practical and not an artificial way. In most cases the person on whom the obligation is imposed by s 34(1)(a) will only become aware of matters after the claimant's injuries have become a cause of complaint. We do not think that any considerations of the kind advanced by the second respondent affect the conclusions to be reached as to the proper construction of the Act.

[26] In our view the appellant is correct in its argument that for a personal injury to be one to which the statutory policy applies it is both sufficient and necessary that the injury be:

(a) caused by, through or in connection with the relevant motor vehicle;

(b) caused as a result of one or more of the occurrences (or in the case of s 5(1)(a)(iv) the condition and occurrence therein provided for) specified in s 5(1)(a); and

(c) caused by some wrongful act or omission on the part of someone other than the injured person in respect of the motor vehicle.

[27] It follows that the appeal should be allowed on this ground.

[28] We also think that the appellant's alternative claim that in this case the myriad applications of force to the spine of the plaintiff are properly to be described as incidents within the definition of a "motor vehicle accident" is correct.

[29] There is a substantial body of authority of some long standing in the workers' compensation field which deals with cases of injury sustained over a significant period as the result of the combined effect of many minor episodes or applications of trauma. The issue in those cases was whether the injury was sustained by "accident" within the terms of the relevant legislation. Whilst "accident" can give rise to quite different considerations the sense in which it was being considered in those cases raises, in our view, a similar question to the term "incident" here. The term "incident" should not have any more restricted meaning than "accident" in this respect.

[30] We were referred to some of these cases in argument. One case is Hawkins v The Commonwealth [1966] HCA 66; (1966) 116 CLR 159. In that case an employee of the Commonwealth who was required to travel substantial distances over rough country in a Landrover sustained an injury to an intervertebral disc. After a period off duty he returned to work but some six years later as a result of many further jolts and bumps to which he was subjected in the course of his duties he became totally incapacitated by sciatica. He returned after an operation to the same duties but after the defective disc in his spine had been subjected to further trauma as a result of further driving he had to cease work.

[31] The issue concerned whether for the purposes of the legislation and the extent of his entitlement to compensation the damage sustained to his spine after the operation and prior to his retirement was the consequence of further "personal injury (caused) by accident" The issue was dealt with by the court at pp 164 and 165:

"If, as the Magistrate thought - and in our opinion rightly thought - the jolts and bumps to which the appellant was exposed during his journeys in the Landrover could fairly be described as a series of accidents, precisely the same description should be given to the series of similar happenings which occurred between 1963 and February 1966 and it seems to us to be reasonably plain that it was the cumulative effect of the accidental injuries thus occasioned after 1963 operating on a pre-existing defective disc that resulted in the appellant becoming incapacitated in February 1966 from earning his salary as a Senior Recovery Officer. We think the medical evidence points to the fact that, as a result of these occurrences, he sustained injury by accident in the "popular and ordinary sense" of the phrase, to use the words of Lord Macnaghten and of Lord Shand in Fenton v. Thorley & Co. Ltd. "Each journey", it was said by one of the medical witnesses, "would make his back a little bit worse than it was before the journey started", or, as another doctor put it, "You would say it" - that is the journeys and the resulting stresses and strains on his back - "wore out his back a little more each time the same as it wore out the tyres on his car a little more after each trip". And it is immaterial that the ultimate partial incapacity was caused or at least contributed to by the cumulative effect of a series of accidental injuries and not by one specific and definite accident: Burrell v. Selvage; Fitzsimons v. Ford Motor Co. Ltd. . ...".

[32] In Fitzsimons v Ford Motor Co Ltd (Aero Engines) [1946] 1 All ER 429 a similar issue arose. An employee claimed compensation in respect of an injury to his hand which was the consequence of holding a hand machine which was electrically operated and vibrated at 2800 revolutions a minute. He ultimately developed a condition called Raynaud's disease. The medical evidence was that each vibration caused by the rotating instrument amounted to a tiny blow to his hand and arm, which was transmitted to the nerves and caused small damage to their tissues ultimately resulting in cutting off of the flow of blood needed to keep the hand healthy. It was held at first instance that the damage to the hand was not caused by accident for the purposes of the relevant legislation. At pp 430 and 431 Scott LJ in delivering the judgment of the Court said:

"The facts are thus quite clear and undisputed. The judge accepted them as we have stated them, but held that to constitute an injury by accident within the Act the workman must be `suddenly and decisively attacked at his work' and in effect that the gradual ruining of his blood vessels did not bring him within the Act. In our opinion he was wrong in so ruling. Each vibration caused by the rapidly rotating instrument was, as it were, an infinitesimal blow to the man's hand and arm, transmitted to the nerves, causing an infinitely small damage to their tissues, and in the end cutting off the flow of blood needed to keep the hand in a healthy condition. Some men may have better powers of resistance to such attacks than others, but the mere fact that the breakdown does not occur until the cumulative effect of the tiny blows from the vibrations produces a certain degree of alteration in the nerves does not affect the character of the cause."

[33] The Court of Appeal in Fitzsimons followed an earlier judgment of the House of Lords in Burrell (Charles) & Sons Ltd v Selvage (1921) 14 BWCC 158; 90 LJ (KB) 1340.

[34] The same process of reasoning in our view leads one to the conclusion in this case that the plaintiff's spinal injuries are the result of many incidents in the course of her employment and the appellant in our view would be entitled to succeed on this ground also.

[35] The schedule to the Act has been amended a little earlier this year so as to provide for a further exclusion:

"This policy does not insure against the liability to pay damages for an injury that arises gradually from a series of incidents."

[36] It was common ground that this amendment provides no assistance to the construction issues which arise on this appeal. Its effect, however, would seem to be to exclude a claim of this kind from the ambit of the policy but only if it is correct to say that the injuries are the result of a number of incidents within the meaning of the Act.

[37] The second respondent contends that the plaintiff's injuries were not the result of the driving of a motor vehicle. The argument advanced was that the injury sustained in this case was the result of the defective seats and that the driving of the buses was merely incidental to the occurrence of the injury.

[38] His Honour dealt with this subject at paragraph [55] of his judgment (p 330 of the record):

"I find that the injury to the plaintiff the subject of agreed damages was as a result of the driving of the buses with the defective seat. Driving of these buses required her to maintain a posture which caused stresses to her spinal structure resulting in the injury to her. The posture resulted from the defective seat and because it was necessary for the driving of the bus. In that sense the injury was a result of driving a bus. It was also a result of a defect in the driver's seat of the bus which was not a defect which caused its loss of control whilst being driven."

[39] What s 5 requires is a causal relationship between the driving of the motor vehicle concerned and the personal injury. His Honour found that this existed and in our view this finding is correct.

[40] We would allow the appeal, set aside the judgment and order in lieu that the plaintiff recover from the second defendant the sum of $70,000.

[41] The plaintiff's counsel indicated that further submissions on costs might be made in the event the appeal was allowed. It will be necessary then to give liberty to the parties to apply on this issue.

[42] Subject to what the parties have to say on costs, we would indicate that the appropriate further orders would seem to be that:

(a) The plaintiff recover from the second defendant the costs of the proceedings to be assessed;

(b) The first defendant recover from the second defendant the first defendant's costs of the proceedings, including the third party proceedings, to be assessed;

(c) The second respondent pay the appellant's and the first respondent's costs of the appeal to be assessed.

[43] Liberty to apply by written submission on costs on or before 31 January 2001.

[44] BYRNE J: Overwhelmingly, injuries sustained in connection with motor vehicles are attributable to readily identifiable occurrences: typically, sudden impacts. So pervasive is this causal relationship between road injury and discrete event that it is not altogether surprising to find indications in the Motor Accident Insurance Act 1994 ("the Act") that the defined[2] expression "motor vehicle accident" was intended only to function as a convenient, summary way of describing a state of affairs in which personal injury was caused by, through or in connection with a motor vehicle. Take s 39(8):

"If a claim against the Nominal Defendant is barred because the claim relates to personal injury caused by, through or in connection with a motor vehicle that cannot be identified and the claimant failed to give notice of claim under this Division within 9 months after the motor vehicle accident, the Nominal Defendant cannot waive compliance with the requirement to give notice within the time allowed by this Division ...".

[45] Other provisions of the Act[3] also proceed on the assumption that for every injury arising out of the use of a motor vehicle there will be a causative "incident".

[46] Section 5[4] is another illustration of this tendency. It begins by specifying[5] that the Act "applies to personal injury caused by, through or in connection with a motor vehicle if ...", and prescribes the essential requisites, including that the injury be the "result of ... the driving ..." and caused by the negligence of someone other than the injured person.[6] Subsection (3) then provides that the Act does not apply to "personal injury caused by, through or in connection with" specified things "unless the motor vehicle accident out of which the injury arises happens on a road".

[47] But, as the present facts reveal, physiological deterioration amounting to personal injury can occur in connection with the driving of a motor vehicle in circumstances where no particular episode can be isolated as the cause. In such situations, which is to govern the interpretation of the scope of the statutory indemnity: the generally but not universally valid assumption reflected in the definition of "motor vehicle accident" that injury bespeaks a causative "incident", or else the natural meaning of the words used at the beginning of s 5, which do not in terms restrict the cover to injury shown to have resulted from something like an observable, sudden occurrence?

[48] If the opening words of s 5[7] were not intended to bear their ordinary meaning but instead were meant to be restricted in their reach to "an incident in which personal injury is caused ... in connection with a motor vehicle" that could easily have been conveyed: merely by substituting after "This Act applies to" the defined expression "motor vehicle accident" for the words chosen.

[49] This textual consideration as well as the statutory provisions and matters mentioned by Pincus JA and Cullinane J, in whose reasons concerning the interpretation of s 5(1) I agree generally, persuade me that the statutory policy did afford cover in the circumstances in which Ms Evans sustained her injuries.

[50] I do not find it necessary to consider whether the applications of force to the spine are properly to be described as several "incidents".

[51] As to whether the injuries were the "result" of "driving", in my opinion, it was open to the judge to conclude that the changes to the spinal structure resulted from a posture adopted to cope with the motion of the bus while under Ms Evans's control, thereby establishing the necessary causal link between the driving and the injury.

[52] I would allow the appeal, and agree in the orders proposed by Pincus JA and Cullinane J.

[1] See s 5 of the Act.

[2] by s 4 to mean "an incident in which personal injury is caused by, through or in connection with a motor vehicle".

"32. If personal injury is caused by, through or in connection with a motor vehicle that is not insured under a CTP insurance policy but a self-insurer is the registered owner, the self-insurer's liability is the same as if the self-insurer had been, when the motor vehicle accident happened, the insurer under a CTP insurance policy under this Act for the motor vehicle.

33.(1). The Nominal Defendant's liability for personal injury caused by, through or in connection with a motor vehicle is the same as if the Nominal Defendant had been, when the motor vehicle accident happened, the insurer under a CTP insurance policy under this Act for the motor vehicle."

[4] The section is extracted in Pincus JA and Cullinane J's reasons.

[6] See s 5(1)(a) and (b).

[7] "personal injury caused by, through or in connection with a motor vehicle if ..."